author: Danforth, J.

text:
    James F. Mooney, Resp’t, v. John Loughlin, App’lt.

      (Court of Appeals,

      Filed May 13, 1887.)

    Appeal—Evidence—Bun,dins contract.
    Plaintiff, not a party to the building contract, did work and furnished material necessary for the completion of a building, and defendant denies that he employed plaintiff to do the work. A referee found that plaintiff did the work under direction of Keeley, the architect, and that he acted as agent of defendant, and that defendant accepted and is enjoying the benefits of plaintiff’s work. Held, that if the work was such as the contractor should have performed, on plaintiff’s evidence it was extra and necessary work ordered by the architect; that it was for the referee to determine which of the two sets of witnesses he would believe; that there is enough on the plaintiff ’s side to make out a case, and that is sufficient to deprive the court of jurisdiction to weigh the evidence.
   Danforth, J.

On the 24th of February, 1882, the defendant of the first part, and Fickett & Co., of the second part, entered into an agreement by which Fickett & Co. undertook to do certain work upon St. Mary’s hospital, in accordance with drawings and specifications made by one Keeley, an architect, and to finish the same to his satisfaction and under his direction. The plaintiff is not -a party to that contract, but it is conceded that he did work and furnished materials necessary for the completion of the building, to the amount of $511.16. Not being paid he sued the defendant, alleging that the work was done and the materials furnished for the defendant and for his benefit.

The defendant answered, denying that he, either himself or by any authorized agent, employed the plaintiff to do the work.

Upon the pleadings, therefore, the only issue was as to the liability of the defendant to pay for work and materials, the benefit of which, according to the pleadings, he enjoys.

The issue was referred to a referee, and he, after hearing the evidence, at the defendant’s request, found: first, that the plaintiff did the work under the instructions of P. C. Keeley; second, that Keeley was the architect of the hospital. He also found that Keeley acted as agent of the defendant, and further found that the defendant subsequently ratified the action of Keeley, accepted and is now vising and enjoying the benefits of the plaintiff’s work and materials. He found the value as above stated.

Upon appeal to the general term the judgment entered upon the report of the referee was affirmed; and, from the decision then made, this appeal is taken.

The learned counsel for the appellant contends in the first place that there was no evidence of authority in Keeley to contract with the plaintiff for the work in suit; second, that the defendant never ratified the appointment by Keeley; and, lastly, that the judgment is wrong because of the admission by the referee of improper evidence, without which the plaintiff’s case was -not made .out; in other words, that the evidence was insufficient to charge the defendant with liability for the plaintiff’s claim. He concedes that, if there is any conflict in the evidence in regard to the matters in issue, the findings of the referee and the decision of the general term would be conblusive upon this court, and fatal to his appeal.

The only question then is as to the evidence presented by the parties.

That Keeley was the architect and superintendent of the construction of the building referred to is established beyond question. One of the firm of Fickett & Co. testified that the plaintiff was employed to do all the painting on the hospital that they had agreed to do under the contract, but that the work in question was outside the contract and not included in it.

The plaintiff testified that, after completing the work now in question, he presented his bill to the defendant, who looked at it and asked him, “What appeared to be the trouble? Was not the work done?” Plaintiff said: “It was,” and the defendant said: “You know I know nothing about this work. Mr. Keeley looks after all this work for me, and I cannot pay this bill.” Plaintiff said: “Why, Bishop; is not Mr. Keeley your agent?” He said: " He is, and therefore I cannot pay you without his signature to your bill; I-will see Mr. Keeley and let you know shortly. Please call again.” Plaintiff did so, and defendant examined the bill, and asked who ordered the work to be done ? and then said: “This should be left to arbitration.” “He asked me to leave the bill with him, and I did so.” He objected to no part of the bill. ” The defendant subsequently told the plaintiff: “Mr. Keeley says he never ordered you to do any work. The defendant then advised plaintiff to see Mr. Keeley again.

The plaintiff further testified that the work was done in pursuance of directions received by him from Mr. Keeley; and, further, that he told Keeley that the things required were extra; and Keeley told him, “They will have to be looked after and taken care of. You make them the same as the rest of the work.”

Upon cross-examination by the defendant, he not only reiterated the testimony before given as to directions received from Keeley, but, being asked as to the authority he understood Mr. Keeley to have, answered, “I understood he had entire authority to do more or less work, or have me do anything he saw fit;” and also, “I considered Mr. Keeley’s orders as completely binding on the defendant.”

Further, in answer to the counsel for the defendant, he said: “I understood he was defendant’s agent, for all purposes, on that building.”

The defendant was examined as a witness and proved that Keeley was the architect of the hospital. He denied that Keeley had any authority to act for him outside of the contract, and that, personally, he never employed Mr. Mooney to do any work on the hospital.

Keeley, examined for the defendant, substantially contradicted the plaintiff, so far as his memory served him. With regard to the extra work, as described by plaintiff, his testimony tends to corroborate the plaintiff concerning the change of color and requiring the panels of the doors to be made lighter, and the stiles darker.

He also testifies that extra work was done besides what was mentioned in the contract, that some was ordered by Sister Ermiliana, who, by the terms of the contract, was authorized to make additions or require deviations from its provisions. He cannot state positively that he himself did not order some extra work.

In any view of the evidence the work was done, the materials were furnished, and now form part of the structure referred to in the contract. If, on the defendant’s evidence, the work was such as the contractor should have performed, on the plaintiff’s evidence it was extra work, ordered by the architect, by him deemed necessary in the construction of the building, to the benefit of which the defendant has succeeded, and there seems to be no legal reason why the plaintiff should not be paid according to his claim. It was for the referee to determine which of the two sets of witnesses he would believe, and what inferences he would draw from the facts stated by them. There is enough on the plaintiff’s side to make out a case; and that is sufficient to deprive this court of jurisdiction to weigh the evidence.

We think the facts found by the referee are not conjectural, merely, but are supported by evidence, and upon those facts the plaintiff was entitled to judgment. The exceptions to evidence have been examined. They are general and not specific in form, and point to no substantial error.

The judgment should be affirmed.

All concur, except Rapallo, J., dissenting, and Earl, J., not voting.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Charles H. Meads and ano., Respts, v. Walter C. Tuckerman, App’lt.

      (Court of Appeals,

      Filed May 13, 1887.)

    1. Refebee—Stipulation as to fees of—Days when no heading had.
    Under a written stipulation of attorneys that the compensation of a referee shall be twenty dollars per day “ for every hearing ”—a charge for days on which there was no hearing and no appearance, is unathorized where the failure to appear was due to the fact that arrangement between, the respective counsel, was made prior to the times fixed by the referee, and of which the referee was notified.

      2. Same—Oral agreement will not affect written stipulation—Code Civil Pro., § 3296.
    Where the stipulation made in pursuance of section 3296, Code Civil Procedure, is silent on the subject, no force will be given to an alleged oral agreement or understanding between counsel and referee that the word “hearing” should be deemed to include appointment of hearing.
    Appeal from order of general term, second department, affirming order of special term, denying motion for retaxation of referee’s fees.

      Frescott Hall Butler, for app’lt; Frederick Seymour, for resp’ts.

       Reversing 43 Hun, 636, mem.

   Per Curiam.

The question in this case turns upon the interpretation of that clause in the written stipulation of the attorneys for the respective parties which declares that the compensation of the referee shall be the sum of twenty dollars per day “for every hearing.” The fees in controversy relate to the charge made by the referee for thirty-nine days on which appointments for a hearing had been made, at the request of counsel, but when no hearing in fact was had, and no meeting or appearance before the referee. The failure to appear on the several days so appointed was due to the fact that by arrangement between the respective counsel, made prior to the times fixed by the referee, the hearing was postponed, of which postponement the referee was notified. The postponements were made in most-cases at the request and for the accommodation of the counsel for the defendant. The reference continued during the period of two years or more, and the referee ■charged fees for 114 days at the stipulated rate per day, amounting, in the aggregate, to $2,280.

We are of the opinion that the charge for the days on which there was no hearing and no appearance was unauthorized. The compensation of referees is fixed by statute at six dollars “for each day spent in the business of the reference, ” unless a different rate of compensation is fixed by the consent of the parties, manifested by an entry in the minutes of the referee, or otherwise in writing, or a smaller compensation is fixed by the court or judge in the order of reference. Code, § 3296. In this case there was no entry in the minutes on the subject, and the right to fees beyond the statutory rate depends solely upon the written stipulation. It is impossible, we think, to extend the meaning of the words, “every hearing,” in the stipulation so as to include days appointed for a hearing, but on which no hearing in fact was had, and when, in advance of the time appointed, the parties, by arrangement,- had agreed upon a postponement, and, in pursuance thereof, had omitted to appear before the referee. It might have been proper to have provided for this contingency in the stipulation. But the stipulation is silent on the suoject, and we cannot, in face of the statute, give any force to the alleged oral agreement or understanding between the counsel and the referee that the word “hearing” should be deemed to include appointments of hearings. The word “hearing” is unambiguous, and to give effect to the oral evidence would be adding a material term to the stipulation, contrary to settled rules of evidence.

The statute is founded in a just policy. When counsel undertake to fix the rate of compensation by agreement, it is but just that their intention should be manifested in such a formal and authentic manner as to leave no doubt.

The orders of the special and general terms should be reversed, and an order entered for the retaxation in respect to the items mentioned.

All concur.


author: Andrews, J.

text:
    Hannah Diffendarfer, App’lt, v. George W. Dicks, Impleaded, etc., Resp’ts.

      (Court of Appeals,

      Filed April 19, 1887.)

    1. Assignment—Fraud—Inadequacy of price.
    Mere inadequacy of price, unaccompanied by fraud, is not a ground for rescinding an executed contract, and a party is not to be deprived of the benefit of a good bargain merely because the other party may have acted in ignorance of the value of the thing sold, or of some material fact known to the purchaser, and no undue advantage is taken by the latter, and where there are no special circumstances calling for disclosure.
    2. Same—Evidence.
    But where a residuary legatee brings an action to set aside an assignment of a claim due his testator’s estate, made by the administrator on the ground of fraud, as having been made for a grossly inadequate consideration, he is entitled to prove the inadequacy of the consideration, and that the estate of the debtor was solvent.
    3. Same.
    He is also entitled to show what the books of the testator and the debtor contained showing the amount of the account.
    Appeal from judgment of the general term, supreme court, first department, affirming a judgment dismissing plaintiff’s complaint at the close of his case.
    This action was brought by appellant as sole residuary legatee of Sarah E. Quinn, deceased, against George W. Dicks, assignee of the claim in question; William Apgar, executor of the will of Thorn Walling, deceased; and Coffman James, administrator c. t. a. of Sarah E. Quinn, deceased—to set aside the assignment of a claim of $5,534.30,, due from the estate of Thorn Walling, deceased, to the estate of Sarah E. Quinn, deceased, which Coffman James, Quinn’s administrator, executed on March 10, 1882, to defendant Dicks, for $273; and to restrain Dicks from collect-the claim of the estate of Walling, and to restrain Walling’s executor from paying the claim to Dicks, or any person other than plaintiff or Quinn’s administrator, and for other relief on the grounds: (1) That the assigment was made for a grossly inadequate consideration, and in fraud of the rights of plaintiff, the said residuary legatee; (2) mistake of fact as to the actual amounts of said claim; and (3) actual fraud on the part of Quinn’s administrator and Dicks, the assignee.

      J. P. Osborne, for app’lt; Chester Wolverton, for resp’t Dicks H. D. Van Orden, for resp’t Apgar.

       Reversing 34 Hun, 633, mem.

   Andrews, J.

We concur with the opinion of Judge Davis that evidence was improperly excluded on the trial, bearing upon the question of fraud in the assignment and purchase of the claim in favor of the estate of Quinn, against the estate of Walling. This conclusion does not conflict with the authorities cited in the prevailing opinion, which establish that mere inadequacy of price, unaccompanied by-fraud, is not a ground for rescinding an executed contract, and that a party is not to be deprived of the benefit of a, good bargain merely because the other party may have acted in ignorance of the value of the thing sold, or of some material fact known to the purchaser, and no undue advantage is taken by the latter, and where there are no, special circumstances calling for disclosure. But the jurisdiction of chancery to rescind contracts for fraud, or mutual mistake of material facts, is one of the best settled and most beneficent powers of a court of equity.

The case presented by the evidence was that of the assignment by Quinn’s administrator to the defendant Dicks, for the consideration of $273, of a claim in favor of that estate against the estate of Walling, amounting to more than $5,000, and which, on a reference under the statute, instituted subsequent to the assignment, has been found by the referee to have amounted on June 8, 1883, to $5,534.30. The assignment to Dicks was made March 10, 1882. If the estate of Walling was solvent,' it is the case of an assignment made by an administrator of a claim in favor of the estate he represented, upon a consideration which was grossly inadequate. The inadequacy of the consideration was one of the facts which the plaintiff was entitled to, prove. Whether, standing alone, it word'd support a finding of fraud, is not the question. The trial judge, we think, erroneously excluded evidence offered to show that the estate of Walling was solvent. It was a material fact, bearing upon the question of the adequacy of the consideration. So, also, evidence was excluded as to what the books. of Quinn and Walling showed was the amount of the account against Walling. This evidence was also, we think, improperly excluded. If it had appeared from the books of both creditor and debtor that there was an admitted balance of $5,000 due to Quinn’s estate, it would have been a significant circumstance, bearing upon the good faith of the administrators of the respective estates, and also, in view of the other evidence, of the good faith of the defendant Dicks.

The way in which the defendant Dicks came into the transaction is peculiar. Quinn and Walling both died in 1880. In March, 1881, the administrator of Quinn wrote the administrator of Walling that Walling was indebted to Quinn in the sum of $273. In November, 1881, the defendant Dicks sent one Condit to Philadelphia, with $300, to buy the claim; but James, the administrator of Quinn, then declined to sell it. In March, 1882, James came from Philadelphia to New York, and there had an interview with Apgar, Walling’s executor. James informed Apgar that, as near as he could make out, the claim was $273. The executor of Walling did not inform James that the claim was more than $273, or say anything upon the subject of the amount, but said he would pay the claim if James would make a detailed statement of it. James replied that he could not make a detailed statement, but only a statement of what appeared on the books. Apgar replied that this would not do, and that he could not pay it. Thereupon James went to one Egbert, a nephew of Dicks and a son of Walling’s book-keeper, of whom Apgar told him,” and the two together went to the place where Dicks was employed as a clerk, and found him, and Dicks offered James $273 for the claim, which offer James accepted, and thereupon Dicks took from his desk an assignment, already prepared, which James signed, and the $273 was paid.

The complaint alleges that, at the time of the assignment, Dicks had knowledge or information of the true amount of \the claim. In his answer he denies knowledge only, but does not deny that he was informed of the amount. On the trial he testified that he did not know the amount until after the assignment, but admitted that he had testified, on the reference under the statute, that he was informed of the amount in October or November, 1881. If the plaintiff had been permitted to show that Dicks knew, or had reason to believe, when he took the assignment, that Walling’s estate was solvent, would not a case have been presented calling for explanation on his part ? He knew that he was dealing with an administrator. If he knew also the amount of the claim, and that Walling’s estate was solvent, must he not have known that the administrator of Quinn, in selling a claim of more than $5,000 for $273, was acting either under a mistake, or in reckless disregard of his trust ? If he was acting in collusion, either with the administrator of Quinn or of Walling, the transaction was a fraud. How came he to know that the claim was $273, or how did it happen that he prepared an assignment in advance ? We do not say that this transaction may not have been fair and honest. But the circumstances are suspicious, and it was a case where the fullest inquiry as to the facts should have been permitted, within the rules of evidence.

The judgment should be reversed and a new trial ordered.

All concur.


author: Finch, J.

text:
    William F. Bridge, App’lt, v. George H. Penniman, Resp’t.

      (Court of Appeals,

      Filed April 19, 1887.)

    Sale—Rescission of—Question of fact.
    The controversy was whether plaintiff did not rescind by tendering back, without conditions, certain stock received; or whether he used that stock, and its transfer to the defendant, as a new consideration for a new contract, by which he obtained from the defendant a bond of indemnity, with surety, against his liability as an officer of the company. Held, that this was a question of fact, and that the possible questions of law in the case are inextricably involved in and dependent upon the conclusions of fact as found by the referee, and accepting them it is clear that there was no rescissson.
    Appeal from judgment of general term, superior court of New York city, affirming judgment entered on report of referee dismissing complaint.
    The plaintiff claimed that the defendant had sold to him twenty-two shares of the stock of the Judd Linseed & Sperm Oil Company, a corporation, for which he had paid the defendant $22,000; also, that the purchase was so induced by the false and fraudulent representations of the defendant, that the plaintiff had a right to rescind the purchase and recover the $22,000; and that he had in fact rescinded.
    The defense denied the right to rescind, and the fact of rescission, claiming that the plaintiff had not tendered or returned the stock to the defendant in a manner that would allow the plaintiff to rescind, or in other words, unconditionally.
    The most important fact as to the return of the shares to the defendant is that after negotiation or dispute between the plaintiff and defendant, after plaintiff had demanded that defendant should give security as well as his own obligation, as an indemnity against plaintiff’s liability as stockholder, etc., the defendant and his wife, the latter expressly charging her separate estate, made a bond to the plaintiff. It recited, whereas, William F. Bridge has transferred, or is about to transfer, to George H. Penniman, all his stock and interests in the company specified, and has resigned as president and trustee of the company, in consideration of the premises, and of one dollar, the said George H. Penniman, and his wife, “do jointly and severally agree to indemnify and save harmless the said Bridge from all claims, debts or demands of whatever name, nature or kind, now existing, against said company, or heretofore contracted by it, or on its behalf, also from all claims or demands against him as a stockholder in, or trustee of said company,” etc. The plaintiff upon receiving this bond transferred the stock.

      William C. Holbrook, for app’lt; Joseph H. Choate, for resp’t.

       Affirming 19 J. & S., 183.

   Finch, J.

That the plaintiff was induced to buy and pay for the stock of the oil company by representations of the defendant which were untruthful and incorrect, and so, upon a discovery of the facts, was at liberty to rescind the contract, and recover back the purchase money, is scarcely disputed on this appeal, and may be assumed without discussion.

The real controversy revolves about the inquiry whether the plaintiff did in fact rescind by tendering back, without conditions, the stock received; or whether, on the contrary, he used that stock, and its transfer to the defendant, as a new consideration for a new contract, by which he obtained from the defendant a bond of indemnity, with the protection of a surety added, against the liabilities to which he had become exposed by his official connection with the company. This appears to us to be a question of fact. The history of the transaction, as detailed by the adverse parties, runs upon different lines, and is colored by their respective theories. As a consequence, there is, to some extent, disagreement and contradiction between them; and where the facts themselves are not disputed, the inferences derivable from them as to the real nature of the transaction, and the true intent and understanding of the parties, are extremely divergent, and open to wide differences of opinion.

The plaintiff’s theory is that, when the worthless character of the stock was fully ascertained, the defendant promised to protect his vendee from loss; that the latter tendered back the stock, and demanded the purchase money as a clear rescission of the contract; and that the indemnity given stood outside of that rescission, and rested independently upon the duty and liability of the defendant to indemnify, and upon his express promise so to. do. This theory has been assailed with the criticism that the plaintiff transferred, not only the stock bought of defendant, but that purchased of other parties; and received from defendant a bond of indemnity which could not have been compelled, and which he was not bound to give, either by virtue of his general duty, or of any promise which he had made. It is argued, from the terms of the correspondence which passed between the parties, that the plaintiff steadily demanded the protection of a surety—the liability of some third person which would supplement that of the defendant—and so was seeking to obtain what he had no right to demand, and could not have compelled, and which, therefore, he chose to buy by a transfer of all the stock which he owned.

The theory of the defendant is that the arrangement was made in that way; that the plaintiff, by becoming the president of and a director in the oil company, stood exposed to a heavy and dangerous liability for its debts, in case of disaster, and above and beyond the total loss of his stock; that he realized and conceded that he had not been willfully or purposely deceived; and so concluded, as the wisest treatment of the misfortune, to lose his stock in exchange for adequate protection against threatened and further loss in addition. Attention is directed to a letter written by the defendant which it is claimed offered to plaintiff a choice of alternatives, and meant, in substance, that, in the emergency the defendant would give to the plaintiff all his stock, if the latter would assume the risk of the corporate success or failure, and leave the defendant’s loss measured only by the stock thus transferred; or, on the other hand, if the plaintiff chose to give his stock to defendant, he might end his loss at that point, and the defendant would protect him by adequate security against any further injury. The letter is capable of such interpretation, and it is said presented to plaintiff’s mind a choice of alternatives, one of which he adopted, and which fully explains and accounts for the transfer made and the bond given in return.

It seems to us apparent that the question thus raised depends almost wholly upon the view taken of the facts, and of the conflicting inferences which they originate. The referee has found as a fact that the plaintiff did not make an unconditional tender of his stock, but used it as his own, with which to purchase the indemnity received; and refused to find in accordance with plaintiff’s theory and version of what occured. There are facts and inferences in the case from which that conclusion could fairly be drawn, although open to a doubt which manifested itself when the general term affirmed the judgment, by the dissent of one member of the court. The possible questions of law in the cases are inextricably involved in and dependent upon the conclusions of fact; and accepting them as found by the referee, and approved by the general term, it is clear that there was no rescission, but a new contract agreed upon and executed. The judgment should be affirmed, with costs.

All concur;


author: Peckham, J.

text:
    In re application of Mary E. Hynes, general guardian, etc.

      (Court of Appeals,

      Filed May 13, 1887.)

    1. Guardian—Authority to employ attorney.
    A guardian in socage may make a :contract, employing counsel, to recover possession of lands withheld from the ward, and fixing the compensation at a certain share of the net value of the property recovered, even thougli-that value may he very large, where the circumstances justify it.
    2. Same—Employment of counsel.
    The guardian, who was the molly r. also retained other counsel, entirely distinct from the contract referred to Held, that she could, not retain counsel and charge the expense of his payment to the attorney without his assent, and that such assent would not he implied from the fact that the attorney consulted with such counsel and permitted him to take the leading part in the trial.
    3. Same.
    There was a sale of vacant lots in Tenessee, and the proceeds of the sale are in the hands of the clerk of the chancery court of the state. Held, that the attorney was entitled to his proportion of that fund. Ruger, 0. J., and Earl, J., dissenting.
    Appeal from general term, supreme court, first department.
    On a petition to the supreme court by Mary E. Hynes, the mother of the infants William R. and Andrew Hynes, asking leave to sell the interest of the said infants in certain real property therein described, for the purpose of paying an indebtedness of $16,000 to Charles Todd, of St. Louis, Missouri, for necessaries furnished the infants, and an indebtedness to John L. Brower, their attorney and counsel, of $40,000; that court appointed the Farmers’ Loan and Trust Company special guardian of the said infants for the purpose of and in respect to the proceedings herein, and an order of reference was made to Philo S. Ruggles, Esq., to examine as to the matters contained in the petition, and to report his opinion thereon, with the testimony, particularly as to the alleged indebtedness of said infants.
    The referee found that the value of the property recovered was $141,660 28. He also found that the claim of Charles Todd was established, and recommended its payment. He further reported that Brower was entitled under his agreement to one third of the total net recovery, or $40,581 97. The agreement was as follows:

      “ This agreement, made the 21th day of Novemoer, 1875, between Mary Eliza Hynes, individually, and as general guardian of William R Hynes and Andrew Hynes, party of the first part, and John L. Brower, of the city of New York, party of the second part.

      Whereas, The said party of the first part and her two children, William R Hynes and Andrew Hynes, are in poor and needy condition; and,

      Whereas, A large amount of real and personal property belonging to William R Hynes, the late husband of the party of the first part, is unlawfully withheld from said party of the first part and her said children; and,

      Whereas, Said party of the first part, individually and as guardian aforesaid, had and has no means wherewith to commence and continue proceedings for the recovery of said property; and,

      Whereas, The said party of the second part, at the special request of the said party of the first part, has commenced proceedings to recover said property;

      Now, this agreement witnesseth: That the said party of the first part, individually and as said guardian, for and in consideration of the assistance and service of the said party of the second part attempting to recover the property aforesaid, agrees to pay to the said party of the second part a sum of money equal to one-third of the value of all the the said property recovered and restored to her and her said children.
    In witness whereof, the parties hereto have hereunto set their hands and seals the day and year first above written.
    M. E. HYNES, [L. S.]
    M. E. HYNES, as guardian, [L.»S.] JOHN L. BROWER, [L. S.]
    Sealed and delivered in presence of
    RICHARD O. H. FINCH.”
    The referee further found that Brower’s services under which they were rendered, were well and reasonably worth a one-third the amount recovered.
    Brower took proceedings in ejectment for the possession of the real estate in the city of New York, and by agreement one case was tried, which resulted successfully to the infants, and the judgment was affirmed by the ‘general term and the court of appeals. The case was a second time tried, again resulting in a judgment for the plaintiffs, and this judgment was also affirmed by the general term and this court.
    Upon the report of the referee being presented, the court declined to confirm it as to the claim of Brower, refusing to sanction the agreement made by the mother of the infants-with him, but permitted further proof to be given as to the reasonableness of the agreement. An order was then entered confirming the report as to the indebtedness to Todd, directing a sale of sufficient property to pay the same, and referring the matter back to the referee, to take further proof as to the reasonableness of the said agreement with Brower, and to report his opinion thereon, together with the testimony. Pursuant to said order, a portion of the property was sold for $24,000, the infants’ share of which was more than sufficient to pay the claim of Charles Todd against them, and that claim has been satisfied. Included in Todd’s claim were items of payments made to Joseph H. Choate, who was counsel for the infants, amounting to $2,250.
    The testimony taken before the referee, and particularly that taken upon the hearing had upon this order of the court referring the matter back to him, when Joseph H. Choate was called as a witness, shows that Choate acted as counsel in the ejectment suits from the time of the first trial at circuit, through the appeals, in the second trial at circuit, and again upon the appeals, ending with the last hearing in the court of appeals. Choate testified that he had a claim against the estate of $10,000, less the amount of $2,250, which had been paid to him. This sum was the amount paid him by Tocfd, and repaid Todd out of the infants’ property, $2,250, and $500 paid him of the damages recovered. This claim of Choate is not included in the one-third claimed by Brower.
    Upon the second hearing before the referee, expert witnesses were called on the part of Brower as to the reasonableness of the agreement in question, and the referee made his second report, in which he finds that the agreement in question “was in all respects a just, fair, reasonable and proper agreement, under the circumstances under which the same was made, and was advantageous to said infants, ” and that the infants were each indebted to Brower to the extent of the value of one-third of the estate, real and personal, recovered by him for said infants.
    This report was confirmed, and the real estate of the infants ordered to be sold to pay the amount of the indebtedness found due to Brower.
    From this order sustaining the agreement, fixing the amount due to Brower, and ordering sale of real property to pay it, the special guardian appealed to the general term. That court modified the order so as to provide that the money which had been paid and should thereafter be found due to Choate, should be paid out of the one-third allowed to Brower; and, as so modified, affirmed the order. From this affirmance the special guardian appeals to this court, and Brower appeals from that part of the order which modifies the special term order.

      Truman H. Baldwin, for app’lt; David McClure, for resp’t.
   Peckham, J.

There can be no doubt of the authority of a guardian in socage to make a contract such as this. By our Revised Statutes, under the facts in this case, the mother became a general guardian, with the rights, powers and duties of a guardian in socage. 1 Rev. St., 718, § 5. Such a guardian had the right to the possession of the ward’s lands, and to the receipt of the rents and profits thereof, and could maintain ejectment to recover possession of such lands. Jackson v. De Walts, 7 Johns., 157; Beecher v. Crouse, 19 Wend., 306; Byrne v. Van Hoesen, 5 Johns., 66; Sylvester v. Ralston, 31 Barb., 286; Emerson v. Spicer, 46 N. Y., 594; Shouler, Dom. Rel., §§ 286, 290; 2 Kent Comm., 222.

The right to the possession of the real estate of the ward carries with it a corresponding duty to obtain such possession, and, if wrongfully withheld, the guardian should sue for it. In imposing this duty upon the guardian, the law necessarily gives to him the right to employ counsel, and of course to make a contract for his compensation. Taylor v. Bemiss, 110 U. S., 42; 3 Sup. Ct. Rep., 441. The attorney for Mrs. Hynes, and also all the other parties, seem to have regarded this proceeding as practically a suit to enforce a specific performance of the contract made between the attorney and Mrs. Hynes as general guardian for her infant children; and with that view he proved the facts surrounding the making of the agreement, and gave evidence as to the value of the property to be recovered, the pecuniary situation of the infants and their guardian, the labor involved in the prosecution of the various legal proceedings, and the success attending such prosecution; and he also called some of the most reputable and eminent members of the New York bar upon' the question of the reasonableness of such agreement, and their opinions were unanimous, and were all favorable to its propriety and fairness. The. questions involved in the litigation in the actions of ejectment were argued upon appeal before this court, and have been reported. See 82 N. Y., 41, and 91 id., 451. That they were complicated and grave cannot be doubted.

The question of the propriety of the agreement was before the special term of the supreme court, and, although there was then no affirmative evidence against it, yet the learned and careful judge therein presiding referred it back to the referee to take further evidence on that subject, and. to report thereon to the court. It was upon the proceeding on the second reference that the opinions of the members of the bar were procured under oath, and upon a fair statement of all the facts as shown in the record now before us. The referee in his second report said upon this subject: “I have carefully considered the situation of the infants after the death of their father, as disclosed by the testimony taken herein, in that the estate, both real and personal, of their father, had been taken possession of by relatives of the father residing in this country, claiming to be his only heirs at law and next of kin; they insisting that the marriage of the father of said infants with their mother, the petitioner, was illegal and void, and said infants illegitimate; and in that the marriage claimed had taken place in a foreign country, without the performance of any marriage ceremony; and that said relatives were possessed of large means, and said infants were without any means to prosecute legal proceedings to establish their claim to legitimacy, and to their father’s property; and their motheiwas also without any means; and the infants were dependent upon the charity of the friends of their late father for support, and were of tender years.” The referee finds, as a fact, that the agreement with Mrs. Hynes individually, and as general guardian of the infants, was in all respects just, fair, reasonable and proper. The special term again examined this report, and, in an opinion, the learned justice holding that court said: “I have most carefully examined the testimony taken before the learned referee, both at the original and supplemental hearings, and I have reached the conclusion that the judgment twice pronounced by him, after hearing and seeing the witnesses, is correct, and that his report should therefore be confirmed.” The general term, with an exception to be noticed, agreed with t.his view of the case, and, after a modification, affirmed the order of the special term. Upon this testimony this, court would not be justified in reversing the conclusion of the lower courts upon the fact as to the character of the agreement in point of fairness and propriety.

It appears, however, that just as the attorney an^ one whom he had associated with him were about to enter upon, the first trial of the action of ejectment, another counsel appeared for the plaintiff therein, and with their assent, took the leading part in the trial of the action, which lasted five days, and such counsel also argued the various appeals thereafter, and took the same part in the second trial and the subsequent appeals from the - judgment then, obtained. The services of the counsel were most meritorious and valuable, but they were not rendered upon the re-tamer or request of the attorney making the agreement with Mrs. Hynes, and, so far as appears, were wholly separate and distinct from his' contract with her. The general term held that whatever sums were or should be paid this counsel must be deducted from the amount claimed by the attorney, and modified the order of the special term to that extent. We are unable to see the force of the reasoning which led to this result. Undoubtedly the attorney would have to pay out of bis share all expenses of counsel retained by him in the conduct of the cause. He could not make the infants or the mother liable for that expense. It seems equally true that neither the mother, nor any one for her, or as a mere stranger, could retain counsel and charge the expense of his payment to the attorney, without his assent to such arrangement. There is no proof of any such assent, and we think none is implied from the fact that counsel was employed by a third person, and thereafter the attorney consulted with such counsel, and permitted him under such retainer, to take the leading part in the trial and argument of the action. As the evidence shows, what took place in court, while, of course, of the most vital importance, was but a small part of the actual labor performed in the case; and if the attorney were responsible for the payment of counsel out of his share, when such counsel was not retained by him, and when he was ready and willing to go on without him, the amount of his possible compensation might be very seriously diminished, if not entirely wiped out without his consent. Treating with counsel retained by a third person, and permitting him to aid in the trial of and to argue the case, is very far, indeed, from any assent that his services shall be paid for by the attorney instead of the person who retained him.

One other objection is made. There was a sale of vacant lots in Tennessee, and the proceeds of the sale are in the hands of the clerk of the chancery court of the state. Counsel for appellants claims that the attorney is not entitled to his proportion of that fund. We think otherwise. The title of the infants to the property of their late father has been established by these actions, and Tennessee funds have come or are coming to them by reason of that title. Notes were given for the amount of the sale, less ten per cent paid in cash. The sale took place December 29, 1883, and the last notes became due fourteen months thereafter, or in March, 1885. The notes were secured by mortgage on the lands, sold. It is to be presumed, in the absence of evidence to the contrary, that the notes were worth their face, and that they have been paid; for if not it would have been proved, as the referee did not make his report until September, 1885.

The counsel for the infants also claims that the attorney should only be allowed to recover upon filing a waiver by his associate of all claims upon the infants or the widow. In his brief before this court the counsel for the attorney says that he (such attorney) had himself selected counsel who had actually commenced the opening address to the jury when the counsel retained by others appeared As has been already said, counsel employed by the. attorney would have to look to him for compensation, and would have no claim against the estate of the infants or the widow; but we do not think it proper in this proceeding to add the condition asked for.

All concur, except Ruger, C. J., and Earl, J., dissenting; Finch, J., not voting.

The order of the general term should be reversed, and that of the special term affirmed, with costs.


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    Theodore Brinckerhoff et al., App’lts, v. Henry Bostwick et al., Resp’ts.

      (Court of Appeals,

      Filed May 13, 1887.)

    Equity—Practice—jury—Action by stockholder of bank against directors.
    An action brought by plaintiff in his own behalf, as stockholder of a Dank,- and in behalf of all others similarly situated, against the directors of the bank, to call them to account, as trustees, for the manner in which they have discharged the trust, is an equitable one, and it would be impracticable to refer the whole matter to a jury, the action is properly triable by the court, and such issues as it sees fit it may refer to a jury.
    Appeal from supreme court, general term, second department.
    O. D. M. Baker, for pl’ffs and app’lts; Milton A. Fowler, for resp’ts.

       Reversing 34 Hun, 352.

   Peckham, J.

This action has already been held by this court to be an equitable one. It is brought by plaintiff, in his own behalf, as stockholder of the bank, and in behalf of all others similarly situated, against defendants, who were directors of the bank, to call them to account, as trustees, for the manner in which they have discharged their trust. Of such actions courts of equity have always had jurisdiction. Brinckerhoff v. Bostwick, 99 N. Y., 185. Nothing in the opinion in this case, when last here and reported supra, gives color to the idea that the case was regarded otherwise than as an equitable one. The judge, it is true, in delivering the opinion, said that defendants’ liability was not created by statute, but was a common-law liability springing out of defendants’ relation to the bank, and the manner in which they discharged their obligations and duties as directors thereof. The expression “commop-Iaw liability” was obviously used in contradistinction to that of a liability imposed by statute, and had no reference whatever to a liability enforceable at common law in distinction from one cognizable in equity. Since the first decision of this case by this court (88 N. Y., 52,) other stockholders, upon their petition, have been added as plaintiffs, and the judgment demanded against the defendants is that they may be adjudged to pay the damages sustained by the plaintiffs, and that the receiver may recover, collect and receive the same for the benefit if the creditors and stockholders of the bank, or else that plaintiffs may recover, "etc.

Under the allegations of the complaint, and upon the very numerous bases of liability respecting the several defendants, it is hard to see exactly what kind of a verdict could be directed as to form, in case the action were to be regarded: as a common-law one, and the jury were to give a verdict for the plaintiffs which should cover the whole case, and upon which judgment should be entered. The verdict might be for different sums against different defendants, and founded upon distinct liabilities growing out of different acts as to each, and yet the foundation of .the verdict in regard to the facts found against each defendant would be problematical in the extreme. The sums for which defendants might be liable may not only be different, but the total liability of all might exceed the total damage proved, and thus there would be a verdict for different sums against the different defendants, and an excess of total liability over the damage proved; and provision would have to be made for such a state of facts in the judgment to be entered, which ought to be based upon a special application on notice to the court, and upon its directions then given. All this shows how entirely impracticaole -would be a reference to a jury of the whole issue as in a common-law action, with a general verdict and a judgment to be entered thereon without any further application to the court.

In Hun v. Cary (82 N. Y., 65), there was but one negligent or improper act alleged; that being the purchase of the lot, and erection of the building on it, under the circumstances proved. The damage was plain; it was of the same amount against all who were liable at all, and a general verdict in damages could properly be given, which could be entered without any further application to the court, and would be final in regard to the lights of all parties. The court said under such circumstances it was not error to try the issue there involved by a jury, and that there were no equitable rights to be adjusted, and no occasion to appeal to an equitable forum. The difference between the cases is wide and material. The cases cited by defendants’ counsel as the right of trial by jury in cases of fraud, etc., do not apply here.

The case of Bradley v. Aldrich (40 N. Y., 504), merely holds that an allegation of grounds in plaintiffs’ complaint for equitable relief, and nothing else, where proof of such grounds fails, does not permit the court to try an action for fraud without a jury. The former practice of the court of chancery was to dismiss the bill when all ground for equitable interposition failed, even though a cause of action at law appeared to arise out of the transaction. When a party alleges a cause of action of an equitable nature, he must prove one, so far as the question of a trial by jury is’ concerned; and he cannot escape such tribunal by alleging an equitable cause of action, and while wholly failing to prove it, obtain a trial by the court of a common-law action arising out of the transaction. To show that there is an issue of fraud in a case does not necessarily make the case one for a jury, or give a defendant a legal right to such a trial as if it were a common-law action. An action with an issue of fraud in it could and can now certainly be tried by the court (unless issues were properly framed for trial by jury), even against the desire of defendants, as in an action to set aside a deed or other instrument on the ground of fraud. This action is an equitable one, and the issues to be tried by a jury are to be reviewed by the court in the same manner as in equitable actions, and the plaintiff does not fail to show the equitable nature of this action by proving the allegations of his complaint, even though the ground of the liability of the trustees whom he is seeking to call to account is their negligence and fraud. A court of equity still has jurisdiction of such an action.

The case of Davison v. Associates (71 N. Y., 333, 340), is of the same general nature as Bradley v. Aldrich, supra. The case was brought to enforce the specific performance of a contract for the sale of land, and had been once tried. Or£ the second trial the plaintiff demanded a jury trial on the ground that it appeared on the former trial that defendants had conveyed the lots before the commencement of the action, and that the evidence would now show a cause of action at common law for damages only. The court denied the motion, and the denial was upheld in this court on the ground that the plaintiff, by bringing his action for a specific performance of the contract to convey, had elected his forum and waived his right to a jury trial, but that the rule was different in the case of a defendant, who could not be deprived of a jury trial in a proper case because plaintiff demanded equitable instead of legal relief. In other words, if defendant had asked for a trial by jury of the issue as to damages (the equitable relief of a specific performance having passed away by the conveyance of the land by the defendants to other parties), such request would have been granted, and it would have been no answer to such application to show that the action was originally for equitable relief. This case is nothing of the sort. But without doubt there are issues which ought to be tried by a jury, and the order of the special term very wisely provided for framing issues for such a trial.

The order of the general term should be reversed, and that of the special term affirmed, with costs in both courts.

All concur.


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    Julius Pollock, Resp’t, v. Gouverneur Morris, App’lt.

      (Court of Appeals,

      Filed May 13, 1887.)

      1 Jurisdiction of court—Superior court of New York—Laws 1882, chap. 410, § 993.
    By Laws 1882, chapter 410, § 998, where no ownership -is named in the report of the park commissioners in taking land, or the owner cannot be found, “it shall be lawful” for the city to pay the award “into the supreme court.” Meld, that this is a provision for the city’s benefit which it may adopt and plead as a defense, but to which it is not compelled to resort, but may wait until it is sued and then pay the money into the court, and the superior court of the city of New York has jurisdiction of such an action.
    2. Same—Evidence—Inference.
    A question as to whether all persons who obtained deeds from defendant did so because they were members of the Land-owners Association, involved an inference derived from the character of the association, his relation to it, etc., and was properly excluded.
    Appeal from superior court of the city of New York, general term, affirming judgment of trial term in favor of plaintiff.
    Defendant, in June, 1848, contracted to convey to such persons as the committee of a building association should 'request, any or all of the lots included in the map of Morrisania. In 1848 he contracted to convey the streets and places on said map, which was filed to whomsoever should be authorized to receive the same. In 1864 the conveyance of the streets was made to town trustees, with reservation to himself. Lot 138, abutting on Spring place and Morris avenue, was conveyed, in 1848, to Hyde, under whom plaintiff claims. Thereafter Spring place was narrowed by the park commissioners, leaving a strip of twenty feet on each side, and Morse avenue was widened 22£ x 20 feet on plaintiff’s side of the street. This strip was condemned and an award made to “ unknown owners.” Pollock began an action against the city, and the city, by interpleader, substituted Morris as defendant and paid the money into court and the» action was dismissed as to it.

      W. Stebbins Smith, for appl’t; J. R. Marvin, for resp’t.
   Finch, J.

There are no exceptions to the findings of fact or conclusions of law contained in this record, and. none to the refusals to find requested on behalf of the defendant. There is nothing subject to our review beyond, an exception taken to the jurisdiction of the court, and one to the exclusion of a question during the progress of the-trial. The action was brought in the superior court of the city of New York to recover an award for land taken in the opening of a street, and the city was the original defendant. A claim to the award was also made by Morris, and an order of interpleader granted and entered, substituting him as defendant, and discharging the city upon its paying into the hands of the chamberlain, to the credit of the action, the amount of the award.

The jurisdiction of the court was assailed upon the basis of a single provision of the statute. Laws 1882, chapter 410, § 993. The enactment is that when no ownership is named in the report of the commissioners, or the owners named cannot be found, “ it shall be lawful ” for the city to pay the award “into the said supreme court ” to be disposed of by it. This-is a provision for the city’s benefit which it may adopt and plead as a defense, but to which it is not compelled to resort. It did not adopt it in the present case, and made no such defense, but, admitting its liability to the true owner, brought the money into the court, in which it was sued, and left it there to the credit of the action. That such action could be maintained for the award, we have heretofore decided Fisher v. The Mayor, 57 N. Y., 344; Spears v The Mayor, 87 id., 359.

The question excluded called for an inference or opinion of the witness, founded upon facts either undisclosed or insufficient to warrant the conclusion sought. The inquiry whether all persons who obtained deeds from Morris did so because they were members of the land-owners’ association involved an interest derived from the character of that association, and Morris’ relation to it, and the possibility of his conveyance outside of its control—matters which depended upon the force of the written contract, and as to which the judgment or inference of the witness was inadmissible. The effort was to derive from that inference another, that Hyde, when he took his deed from Morris, must have been a member of the association, and then from that a third, that he knew of the contract, and so was affected by it. The witness did not even know that Hyde was a member of the association, or that Morris had conveyed to him, and his inference from or reasoning upon, the facts was properly rejected.

The judgment should be affirmed, with costs.

All concur.


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    Daniel G. Dorrance, Jr., Resp’t, v. Robert J. Dean et al., App’lts.

      (Court of Appeals,

      Filed June 7, 1887.)

    Warehousemen—Lien on goods—Laws 1830, chap. 179.
    Where commission merchants, having received goods upon consignment, deliver them to warehousemen, who advance money on account thereof; the latter can keep the goods as security for the money so advanced, provided they did not know at the time that a third party was the owner, but not if they knew that the commission merchants were using the property" of a third party, to raise money for themselves.
    Appeal from supreme court, general term, second department.

      Edward S. Hatch, for app’lts; H. Morrison, for resp’t.
   Danforth, J.

The plaintiff, being the owner of certain corn, alleged and proved that the defendants had converted it to their own use, to his damage, $2,829.60. The defendants at the time of the conversion were warehousemen and bankers. They proved, in substance, that they received the corn from the firm of Littell & Co., commission merchants, advanced money to them on account of it, and insisted that they were entitled to hold the corn until this advance was repaid. It appeared that the plaintiff had consigned the corn to Littell & Co. for sale. They therefore had possession, and were the apparent owners, and the trial judge charged the jury that the defendants could keep the corn as security for the money so advanced, provided they did not at the time know that the plaintiff was the owner of the corn: on the other hand, if they knew that Littell & Co. were using the plaintiff’s property to raise money for themselves, then the defendants could not hold. the corn, and stood in Littell & Co.’s place.

To this part of the charge the defendants excepted. It presents the only point in the case, and to sustain it the appellants rely upon the factors’ act. Laws 1830, chapter-179. That act was to protect persons dealing in good faith with the apparent owners of property, and has no possible application to a case where protection would secure to a wrong-doer the fruits 'of fraud.

Many other propositions have been argued for the appellants, but they are raised by no exception,. and are not warranted by any evidence to be found in the appeal book.

The trial judge, in denying a new trial, and the general term in affirming the judgment, properly disposed of the case.

The judgment and order appealed from should therefore be affirmed.

All concur.


author: Earl, J. Finch, J.

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    Margaretta Remsen et al., App’lts, v. George M. Wheeler, Impleaded With City of Brooklyn, Resp’t.

      Court of Appeals,

      Filed June 7, 1887.)

    1. Taxes—Water rates in Brooklyn on vacant lots—Laws 1859, chap. 360, sec. 24—Unconstitutional.
    Plaintiffs’ lots in Brooklyn were vacant, and were assessed for water rates under section 24, chap. 396, Laws 1859, which authorized the water board to fix the rate every year. Held, that it must have been intended that the assessment was to be apportioned according to the value of the lots, or the benefits to them, or the cost of bringing the water to them respectively, and that as the law gave the owners no right to notice, or to be heard before the board which was authorized to impose the assesssments, it was unconstitutional and void. Pinch and Andrews, JJ., dissenting.
    2. Same.
    Defendant Wheeler claimed that notwithstanding his tax certificate might be void, he was entitled to receive the amount of money from the city which it had deducted from the consideration money paid by Lynch to redeem the land, and that plaintiffs’ remedy is against Lynch. Held, that as the money was paid by Lynch for plaintiffs, and by their consent, by bringing this action they ratified the payment, and Wheeler cannot dispute that it was their money.
    3. Same—Voluntary payment.
    The money being in the possession of the city as a mere depositary until the money reached the hands of Wheeler, it could not be deemed a voluntary payment to him by plaintiffs.
    Appeal from supreme court, general term, second department, affirming a judgment for defendant in an action to enjoin the city of Brooklyn from paying over certain moneys to defendant Wheeler and to compel it to pay the •same to plaintiffs.
   Earl, J.

This action was brought to restrain the city of Brooklyn from paying over to the defendant, Wheeler, the sum of $1,986.05, and to compel it to pay the same to plaintiffs as the owners thereof.

The facts as alleged in the complaint, and found by tne "trial judge, are substantially as follows:

The plaintiffs, four of whom are infants, were the owners of a tract of land in the city of Brooklyn which had been encumbered by taxes, assessments, water rates and certificates of tax sales to a large amount. In 1883 proceedings were instituted, in the supreme court, in behalf of the infant plaintiffs, for the sale of a portion of the land in order to obtain money to pay, under section 8, chapter lit of the Laws of 1883, such taxes and assessments as could be paid thereunder to the city of Brooklyn on the balance of the land; and the result of such proceedings was a sale, in which the adult plaintiffs joined, to one Lynch in September, 1883.

The order confirming the sale, and directing the deeds to be given, directed the special guardian of the infant plaintiffs and the adult owners to receive the consideration money payable by Lynch as stipulated in his contract with them, “excepting thereout such sum or sums as said Lynch shall pay in the discharge of taxes, water rates and assessments and sales for each of the same, in order to free said premises or any portion thereof from the liens of the same or the clouds thereon.”

Lynch, thereafter, among other payments, paid to the registrar of arrears of the city of Brooklyn, to redeem a portion of the land purchased by him from a sale thereof under assessments for flagging sidewalks, the sum of $1,171.20; and he also paid the sum of $814.85, to redeem land purchased by him from sales thereof for the water rates assessed thereon from the years 1864 to 1870, both inclusive.

These payments by Lynch to the registrar of arrears were deducted out of the consideration money which by his contract he was to pay the plaintiffs for the land deeded to him. The assessments for the water rates were all levied against vacant land, and no notice was given to the owners of the fee at any stage of the levying of such assessments. The sums so paid to the city of Brooklyn are now held by it; hut it claims no ownership of the same or any part thereof, or any lien thereon. The defendant Wheeler claimed to hold the certificates of the tax sales and to be en-entitled to the money thus paid to the city of Brooklyn.

The plaintiffs claim that all the assessments were illegal and the sales invalid; and the defendant Wheeler claims that the various taxes, assessments and water rates and the tax sales were legal and valid, and that he was the owner and holder of the certificates and hens for assessments and water rates, and that the money paid to the city on account thereof was a voluntary payment, and that the title to such money was in him.

The city interposed no answer and made no defense to the action. The trial judge defeated the plaintiffs on the ground that the money was voluntarily paid to the city for the use and benefit of Wheeler, and the plaintiffs had no ownership of the money nor right to obtain or have the same. And upon the same ground substantially the judgment of the special term was affirmed by the general term, as appears by the opinion there pronounced.

If these assessments for flagging and water rates were legally imposed, and the sales under them valid, then the plaintiffs have no standing to maintain this action.

We agree with Judge Finch, for the reasons stated in his opinion, that it does not appear in this record that the assessments for sidewalk flagging were invalid; but we are of opinion that the assessments for water rates were invalid and that the sales under the same were wholly unauthorized and illegal.

In the city of Brooklyn there was a system of water works and a board of water commissioners; and section 24, chap. 396, of the Laws of 1859, provides as follows: “The said water board shall, in every year, by resolution, fix the price which shall be assessed * * * upon every vacant lot situated upon any street, lane, alley or court through or into which distributing pipes shall have been laid, until the bonds issued for the construction of the said works, with the interest thereon, shall have been paid, and thereafter they shall be adjusted so as to, with ‘other provisions of this act for income from said works, meet the expense of repairs, maintenance and extension of the works * * * Such sums so assessed, together with percentages for defaults * * * shall be a hen upon the said premises respectively, and the same may be collected and enforced in. the same manner as taxes are collected and enforced, against land in said city.”

The lots of the plaintiffs were vacant, and hence were-assessed and assessable for water rates under this section. As no use of the water could be made upon vacant lots, it, must have been intended that whatever assessment was made upon them under this section was to be apportioned according to the value of the lots, or the benefits to them, or the cost of bringing the water to them respectively. It. cannot be supposed that it was the legislative intent or the practical operation of the section- that a vacant lot worth $1,000 should be assessed for water rates as much as one worth $100,000.

Unless this section requires the assessment for water rates upon vacant lots to be imposed and apportioned according to values, benefits or costs, it could not be justified as a scheme of taxation, and would be obnoxious to constitutional objections. Therefore, in reference to the imposition of these assessments, as in reference to the imposition of other assessments and taxes, the lot owners were entitled at some stage of the proceeding to a notice and an opportunity to be heard; and unless the law gave them the right to notice and an opportunity to be heard before the board which was authorized to impose the assessments, it was unconstitutional and void for the reason stated in Stuart v. Palmer (74 N. Y., 183).

Our attention has been called to no statute which required the water board to give the lot owners any notice of the levying of these assessments or any opportunity to be heard in reference to them. No notice was in fact given; and the assessments were therefore wholly illegal and void, and they did not become a hen upon the lots or a cloud upon "their title. While it may be unfortunate for the city of Brooklyn to have its system for the imposition of assessments for water rates upon vacant lots thus condemned, it is better that it should be done now before greater complications and more mischief may come from such illegal assessments and void sales made for their enforcement. The rules laid down in Stuart v. Palmer are salutary and important, and, for the protection of personal rights and private property, must be enforced in all cases to which they are applicable.

It is claimed, however, on the part of the defendant Wheeler, that, notwithstanding his tax certificates may be illegal and void, he is still entitled to receive this money from the city. He contends that the money paid to discharge the assessments for water rates did not belong to these plaintiffs, but belonged to Lynch; that they have no •concern with it, and that their remedy is against Lynch for the unpaid balance of the purchase money.' But the record shows that the money was paid by Lynch for them. They consented that the requisite sum should be deducted from the consideration money payable to them, and applied upon these assessments, and after the payment was made they allowed it and received the balance.

By bringing this action they have ratified the payment so tar as concerns Lynch, and upon the facts as they now appear they would certainly fail in an action against him to recover the same amount of money as unpaid purchase money. So even if Lynch under the terms of the order made by the court, which is above set out, was not strictly authorized to make the payment, yet they allowed him to make it out of their money and subsequently ratified his action. Wheeler cannot, therefore, dispute that this money was the money of the plaintiffs and was in effect paid by them.

The further point is made that this money to discharge the assessment was voluntarily paid to the city for the use and benefit of Wheeler, and that therefore the plaintiffs cannot claim it. But the money has not reached the hands ■of Wheeler. It is in the possession of the city, which is a mere depositary, and this action is brought to prevent its payment to Wheeler. Until the money reaches his hands and thus becomes his it could not be deemed a voluntary payment to him. The city may be deemed to be the agent ■of both parties in reference to the money. It has reached its treasury through some mistake either on the part of the plaintiffs or of Lynch; and until the payment has become effectual by delivery to Wheeler, we do not think the doctrine of voluntary payment is applicable on his behalf, and the plaintiffs can reclaim it. The city does not set up voluntary payment to it; nor does it claim the money.

If it is deemed important that Lynch should be made a party to this action to protect his rights or to conclude him by any judgment which may be rendered therein, he can be made a party before the new trial which we are constrained to grant.

The judgment should be reversed and a new trial granted, costs to abide event.

Ruger, Ch. J., Rapallo and Peckham, JJ., concur; Finch, J., reads dissenting opinion for affirmance, in which Andrews, J., concurs; Danforth, J., not voting.

Finch, J.

(dissenting) The plaintiffs, some of whom were infants, became the owners of a number of Brooklyn lots which were heavily incumbered by taxes, assessments, water rates and certificates of sale. The enactment of the Law of 1883 permitted a redemption at very reduced expense and the plaintiffs, desiring to avail themselves of the opportunity, determined to sell a portion of the lots to obtain the means of saving the remainder. Of course it was to be expected that any possible purchaser would stipulate to reserve from the purchase price whatever sums would be necessary to clear and perfect his title beyond all doubt and question and without peril of litigation over an apparent incumbrance.

Such a purchaser the plaintiffs found in James D. Lynch, who agreed to pay for the property a certain sum “ excepting thereout such sum or sums as said Lynch shall pay in discharge of taxes, water rates and assessments and sales for each of the same, in order to free said premises or any portion thereof from the hens thereof or from clouds thereon.”

The adult plaintiffs agreed to this stipulation, and the proposed contract (having been reported to the court in proceedings for the sale of the infants’ interests) was deemed just and best for their welfare, and a guardian appointed to transfer their title upon the terms of the contract. Code Civ. Pro., § 2358.

That contract signified the vendors’ consent that Lynch might use so much of the purchase money as was needed to pay off not only liens but clouds; not merely valid taxes, but apparent liens, not void on their face, but in truth invalid. To that extent his payments bound them exactly ,as if they had made them themselves; and if they were voluntary payments as to him they were equally so as to them. The lands had been sold to one Andrew S. Wheeler, on the 9th of March, 1869, for $366.38, on an assessment levied for the expense of “flagging sidewalks on the west side of Fifth avenue.”

The case contains no evidence of any kind, and the findings do not tell us under what law the assessment was made, or whether the flagging charged for was wholly in front of plaintiffs’ premises or an estimated part of a general expense. We are told only that the taxes were “levied against George A. Powers as owner.” The case does not show when the assessment was levied, nor that at that date George A. Powers was not the owner of some freehold estate or interest therein. The findings show that one Thomas Poole was seized in fee of the property in 1831, and died in that year, leaving a will by which he devised the premises to his executors in trust to permit his daughter Eliza to occupy them during her life, or in trust to rent the lands during the same period and pay the rents to her; and at her death the will gave the fee to her issue who might then be living.

Eliza died in 1882, after all the assessments complained of were made, and either had a life estate which she could have transferred to George A. Powers, or the executors had one which they could have conveyed to him. In either event he would have been liable to assessment as owner; and so we cannot say that the assessment was invalid for that reason, which is the only objection made. There may be others, but it is not our duty to search for them. The appellants have rested their case as to the alleged invality of this, assessment upon the sole ground that it was made against one who was not at the time the owner. They have failed to prove the fact upon which the error claimed rests and we need go no further in the inquiry, and especially not when no adequate basis for such inquiry is furnished.

The plaintiffs, therefore, made no case in any view of the subject as to the assessment for flagging. It may been shown on the trial that George A. Powers had a lease for the life of Eliza and so an estate of inheritance or some conveyance of the remainder. The briefs indicate that some lease to him was proved and was made the subject of comment at general term. The complaint charged that all the sales were illegal because “levied or charged toa person or persons as owner or owners of said premises who were not the owner or owners thereof, nor the occupant thereof. ” There is not only no finding that George A. Powers was not owner, but none that he was not occupant, and the original charter of Brooklyn (Laws 1854, p. 869, § 30), provides that land occupied by a person other than the owner may be assessed in the name of the occupant.

The finding that the water rates were levied against vacant property is a finding as to the form of the assessment, but is not a finding that the lots were actually vacant, and especially not that they were so when the flagging assessments were levied, the date of which is not shown. We think their invalidity was not established, and the plaintiffs’ action must fail as to them.

We come now to the water rates which are found to have been levied against vacant property and against George A. Powers as owner, against unknown owners, and against one Sammis as owner. We are referred in the appellants’ brief to the Brooklyn Water act as the only authority for these assessments. Laws 1859, chapter 396.

We are aware of no other. Three forms of water rates seem to be contemplated, and may be described as " regular rents,” “special rates” and assessments against vacant property. Sections 18, 24.

The first two are to be fixed by ordinance of the common ■council, but the third by the water commissioners.

We must assume from the findings, that the rates here ■assailed were levied against the property as vacant, and therefore by the water commissioners. Section 24 (supra) .authorizes them to “fix the price which shall be assessed” “upon every vacant lot situated upon any street, lane, alley, or court through or into which distributing pipes shall have been laid,” and makes the “sums so assessed” and the “percentages for default” a lien upon the lands and to be enforced like other assessments.

No notice to anyone and no opportunity to be heard is given by the act; and it is wholly immaterial whether the water is used or not; and the plaintiffs contend that for such defect the act is unconstitutional, and the water rates absolutely void. Stuart v. Palmer, 74 N. Y., 183.

These water rates, at least as to vacant property, are called assessments, and are in their nature such; and it is difficult, if not impossible, to see how they can be sustained. But the question is a very important one, and need not here be decided, since if we concede the appellants’ claim in that respect, it does not save their action. If the act under which the water rates were assessed is unconstitutional, they were void on their face, and did not even constitute a cloud. Under his contract, therefore, Lynch had no authority to pay them out of the purchase price; and when he did so, simply paid his own money to the city for purposes of his own, with which the plaintiffs have no concern.

Lynch remains liable on his contract for the balance unpaid, and may be sued for it by the plaintiffs, but the money he needlessly paid was his own, which he could use in that manner if he pleased. It was not plaintiffs’ money in any sense, or withheld under the contract. If, therefore, appellants are right as to the constitutional question, it still does not enable them to maintain this action. They sue to recover money which is not theirs, and to remove a cloud which is not such. They are not helped by the finding that "they have settled with Lynch and adopted and ratified his payments, if that is what the finding means. The adult plaintiffs could bind themselves by such an agreement, but when they did, Lynch’s payment to the city became theirs; the payment was voluntary and without the shadow of compulsion, and cannot be recovered back.

The infants, if they are not bound, have not lost their money. It remains in the hands of their vendee, who is bound under his contract to pay it to them as an unpaid part of the purchase price.

The judgment should be affirmed, with costs.


text:
    Bank of Batavia, Resp’t, v. N. Y., L. E. and W. R. Co., App’lts.

      (Court of Appeals,

      Filed June 7, 1887.)

    1. Principal and agent—Freight agents authority—Bill op lading,
    Where it is the duty of a local freight agent to receive and forward freight, but having no right to issue bills of lading except on the actual receipt of the property for transportation, and he conspires with another to fraudulently issue to him bills of lading, without receiving the freight, so that the latter could obtain money on such bills, the bank or person from whom the money is obtained may rely upon the representations contained in the bill of lading and the railroad is estopped from denying its truth.
    .2. Same—“ Hon-negotiable.” •
    If a common carrier desires to limit his responsibility to the named consignee alone, he must stamp his bills as “ non-negotiable,” and where he does not do so he must be understood to intend a possible transfer of the bills.
    S. Same—“Contents unknown.”
    A recital in the bill of lading that the contents of the package was unknown, leaves the carrier free from responsibility for a variance in the actual contents from those described in the bill, but is no defense where nothing is shipped and the bill is wholly false.

      E. C. Sprague, for app’lt; H. E. Sickels, for resp’t.

       Affirming 36 Hun, 642.

   Finch, J.

It is a settled doctrine of the law of agency in this state that, where the principal has clothed his agent with power to do an act upon the existence of some extrinsic fact necessarily and peculiarly within the knowledge of the agent, and of the existence of which the act of executing the power is itself a representation, a third person dealing with such agent in entire good faith, pursuant to the apparent power, may rely upon the representation, and the principal is estopped from denying its truth, to his prejudice. North River Bank v. Aymar, 3 Hill, 262; Griswold v. Haven, 25 N. Y., 595; New York and N. H. R. Co. v. Schuyler, 34 N. Y., 30; Armour v. Michigan Cent. R. Co., 65 N. Y., 111. A discussion of that doctrine is no longer needed or permissible in this court, since it has survived an inquiry of the most exhaustive character, and an assault remarkable for its persistence and vigor. If there be any exception to the rule within Our jurisdiction, it arises in the case of municipal corporations whose structure and functions are sometimes claimed to justify a more restricted liability. The application of this rule to the case at bar has determined it in favor of the plaintiff, and we approve of that conclusion.

One Weiss was the local freight agent of the defendant corporation at Batavia, whose duty and authority it was to receive and forward freight over the defendant’s road, giving a bill of lading therefor specifying the terms of the shipment, but having no right to issue such bills except upon the actual receipt of the property for transportation. He issued bills of lading for sixty barrels of beans to one Williams describing them as received to be forwarded to one Comstock as consignee, but adding, with reference to the-packages, that their contents were unknown. Williams drew a draft on the consignee, and procured the money upon it of the plaintiff by transferring the bills of lading to secure its ultimate payment. It turned out that no barrels, of beans were shipped by Williams, or delivered to the defendant, and the bills of lading were the product of a conspiracy between him and Weiss to defraud the plaintiff or such others as could be induced to advance their money upon the faith of the false bills.

It is proper to consider only that part of the learned and very able argument of the appellant’s counsel which questions the application of the doctrine above stated to the facts presented. So much of it as rests upon the ground that no privity existed between the defendant and the bank may be dismissed with the observation that no privity is needed to make the estoppel available other than that, which flows from the wrongful act and the consequent-injury. New York and N. H. R. Co. v. Schuyler, supra.

While bills of lading are not negotiable in the sense applicable to commercial paper, they are very commonly transferred as security for loans and discounts, and carry with them the ownership, either general or special of the property which they describe. It is the natural and necessary expectation of the carrier issuing them that they will pass freely from one to another, and advances be made: upon their faith; and the carrier has no right to believe, and never does believe, that their office and effect is limited to the person to whom they are first and directly issued. On the contrary, he is bound by law to recognize the validity of transfers, and to deliver the property only upon the production and cancellation of the bill of lading.

If he desires to limit his responsibility to a delivery to the named consignee alone, he must stamp the bills as “ nonnegotiable; ” and where he does not do that he must be understood to intend a possible transfer of the bills, and to affect the action of such transferees. In such a case the facts go far beyond the instances cited, in which an estoppel has been denied because the representations were not made to the party injured. Mayenborg v. Haynes, 50 N. Y., 675; Maguire v. Selden, 103 id., 642. Those were cases in which the representations made were not intended, and could not be expected, to influence the persons who relied upon them, and their knowledge of them was described as purely accidental and not anticipated. Here they were of á totally different character. The bills were made for the precise purpose, so far as the agent and Williams were concerned, of deceiving the bank by their representations, and every bill issued not stamped was issued with the expectation of the principal that it would be transferred and used in the ordinary channels of business, and be relied upon as evidence of ownership or security for advances. Those thus trusting to it and affected by it are not accidentally injured, but have done what they who issued the bill had every reason to expect. Considerations of this character provide the basis of an equitable estoppel, without reference to negotiability or directness of representation.

It is obvious, also, upon the case as presented, that the fact or condition essential to the authority of the agent to issue the bills of lading was one unknown to the bank, and peculiarly within the knowledge of the agent and his principal. If the rule compelled the transferee to incur the peril of the existence or absence of the essential fact, it would practically end the large volume of business founded upon transfers of bills of lading. Of whom shall the lender inquire? And how ascertain the fact? Naturally he would go to the freight agent who had already falsely declared in writing that the property had been' received. Is he any more authorized to make the verbal representation than the written one? Must the lender get permission to go through the freight-house or examine the books? If the property is grain, it may not be easy to identify; and the books, if disclosed, are the work of the same freight agent. It seems very clear that the vital fact of the shipment is one peculiarly within the knowledge of the carrier and his agent, and quite certain to be unknown to the transferee of the bill of lading, except as he relies upon the representation of the freight agent.

The recital in the bills that the contents of the packages were unknown- would have left the defendant free from responsibility for a variance in the actual contents from those described in the bill, but is no defense where nothing is shipped and the bill is wholly false. The carrier cannot defend one wrong by presuming that, if it had not occurred, another might have taken its place. The presumption is the other way, that, if an actual shipment had been made, the property really delivered would have corresponded with the description in the bills. The facts of the case bring it, therefore, within the rule of estoppel as it is established in this court, and justify the decision made.

The judgment should be affirmed, with costs.

All concur.


author: Earl, J.

text:
    The Mayor, etc., of New York v. New Jersey Steamboat Transportation Co., Impleaded, etc

      (Court of Appeals,

      Filed June 7, 1887.)

    1. Ferries—New York city.
    The fact that the terminus of a ferry in the city of New York was at a private pier in Staten Island seven-eighths of a mile from the ferry terminus, can make no difference as to the rights of a corporation to operate such ferry, and it cannot compel the city to grant such franchise, where it is not shown nor claimed that more than one ferry was needed for the accommodation of the public, there already being one to the same places.
    2. Same—May run to several places.
    The business of defendant did not lose its character as a ferry because its boats stopped at places on the New Jersey shore as well as at places upon the Staten Island shore.
    3. Same.
    There is nothing in the nature of a ferry business which requires that a ferry should be operated from but one place upon one shore to a single place upon the opposite shore. Following case of Independent kteamboatuo.

    Appeal from judgment of the superior court of the city of New. York.

      Noah Davis, James McNamee and Adolph L. Pincoffs, for app’lts; James C. Carter and W. W. MacFarland, for resp’ts.
   Earl, J.

The opinion in the case against the Independent Steam-Boat Company covers substantially all the questions which arise in this case, and but little more needs now to be written. The complaints in both cases are substantially alike, and so are the judgments rendered, except that the individual'defendants in this case were by their own consent enjoined with the other defendents, and they have not appealed.

The ferry established by the city, and operated under it, ran between the foot of White Hall street, in the city, and New Brighton, Sailors’ Snug Harbor, West Brighton, Port Richmond, and Elm Park, all places on the north shore of Staten Island; and the unauthorized ferry operated by the Independent Steam-Boat Company ran between pier 18, on the Hudson river, in the city, and the same places on the shore of Staten Island. The ferry operated by the New Jersey Steam-Boat Transportation Company started from the same pier in the city, and ran thence to the city of Bayou, in the state of New Jersey, on the north shore of the Kill Van Kull, to West Brighton, thence to Port Richmond, thence to Elm Park, and thence to Elizabeth Port, New Jersey; then it returned, stopping at the same places, to the same pier—the round trip being about twenty-four miles.

The right of the defendant to operate a ferry between the city and any places on the coast of New Jersey is not involved in this action. The sole question is whether it had the right to operate the ferry between the city and Staten Island. The fact that the terminus of the ferry in the city was at a private pier, seven-eighths of a mile distant from the ferry terminus established by the city, can make no difference. The city, in the discharge of its duty as the owner of the ferry franchises, was not bound to have more than one terminus for its Staten Island ferries in the city. It is not shown nor claimed that more than one was needed there for the accommodation of the public, and it does not appear that passengers and freight were not sufficiently accommodated by the terminus established by the city.

The distance of Elm Park, or even of Elizabeth Port, from the city, is not so great that a ferry could not be established and operated between it and the city. Ferries to Elizebeth Port have been operated and known as ferries for more than one hundred years, and it appears never to-have been doubted that ferries could be operated between the two places. It is impossible in a general way to specify to what distance over intervening waters ferries may be operated. A ferry could not be established between New York and Boston, or New York and Newport or Philadelphia. The distance would be too great, and the business of transporting passengers and freight between such distant places would be that of common carriers upon public waters. But when the intervening waters are not wide, and can be traversed at regular and brief intervals by boats adapted to a ferry business, there can be no question that ferries may be established and operated.

The business of the defendant did not lose its character as a feny business because its boats, in their passages, stopped at places upon the New Jersey shore as well as at the places upon the Staten Island shore. It was undoubtedly engaged in a ferry business between every point at which its boats touched for passagers and the city. In the carriage of passengers from one place on the New Jersey shore, or the Staten Island shore to other places on the same shore, it was simply doing the business of a common carrier, as its boats did not pass over intervening waters. But in going from the city its boats could leave passengers from the city at each of the places at which they stopped, and so in returning they could take passengers at each of the places and carry them to the city; and in doing this they would be engaged in a ferry business. There is nothing in the nature of a ferry business which requires that a ferry should be operated from but one place upon one shore to a single place upon the opposite shore. There was nothing in the structure of the defendant’s boats which deprived them of the character of ferry-boats. They were adapted to carry travelers, with their horses, vehicles and other property, and hence they could engage in a ferry business.

So, too, it cannot be successfully contended that the city could not lawfully establish a ferry, which was to run from one place in the city to several places on Staten Island. If it had a single franchise for but one ferry between it and Staten Island, perhaps it could not do so; but as it owned all the franchises between it and Staten Island, it could discharge its duty to the public as owner by establishing one ferry, with as many termini upon the shores of Staten Island as there were landing places. Different questions would be presented for consideration if the Staten Island Rapid Transit Railroad Company were plaintiff, claiming a franchise simply to run a ferry between the city and Staten Island.

We, therefore, see no reason to distinguish this case from that against the Independent Steamboat Company. The judgment in this case, as in that, is too broad, and it should be modified, as to the restrain imposed, so as to restrain the company from maintaining and operating a ferry between the city and Staten Island, and affirmed as thus modified, without costs to either party upon this appeal.


author: Per Curiam

text:
    Josie Teets, Respt, v. Village of Middletown, App’lt.

      (Court of Appeals,

      Filed June 7, 1887.)

    Evidence—Witness—Relations to fabty.
    It is always competent to inquire what relations exist between a party and his witness, lor the purpose of showing the motive and influence under which the evidence is given, and the existence of any bias or prejudice on the part of the witness. Such evidence, however, affects the credibility of the witness only; and if his evidence is wholly immaterial upon all of the material issues of the case, an erroneous ruling upon such question furnishes no valid reason for reversing the judgment.
    Appeal from judgment of supreme court, general term, second department, affirming judgment for plaintiff, for $3,000 damages in action to recover for personal injuries.
    Defendant’s street commissioner on the 28th of June, 1883, in paving a gutter on the east side of Academy avenue, had left several small cart loads of sand and gravel within a few feet of the curb. The street was twenty-four feet wide. A street lamp about eighty feet from the place of the accident partially lighted one side of the street. While plaintiff was driving down said avenue about nine p. m. , with one Dusenbury, the wagon struck the heap and plaintiff was thrown over the dash-board and under the horses feet.
    She arose without assistance, and visited several places with Dusenberry and returned home about ten p. M.
    Defendant’s counsel, on cross-examination, offered to prove that Dusenberry was engaged to be married to the plaintiff, which was excluded and exception was taken.

      Wm. F. O’Niel, for app’lt; Wm. Vanamee, for resp’t.

       Affirming 34 Hun, 62.

   Per Curiam

The exception taken by the defendant’s counsel to the ruling of the trial court excluding an answer to his question, on cross-examination, to the plaintiff’s witness as to whether he was engaged to the plaintiff or not, was undoubtedly well taken. It is always competent to inquire what relations exist between a party and his witness, for the purpose of showing the. motive and influence under which the evidence is given, and the existence of any bias or prejudice on the part of the witness. Such evidence, however, affects the credibility of the witness only; and, if his evidence is wholly immaterial upon all of the material issues of the case, an erroneous ruling upon such question furnishes no valid reason for reversing the judgment. That was the case here. No material question of fact was controverted on the trial, and the evidence of the witness could have been wholly stricken from the minutes without affecting the result in the least degree.

The defendant was not prejudiced by the ruling, and the judgment should therefore be affirmed.

All concur.