author: Dayis, P. J.:

text:
    WILLIAM DUDEN, FREDERICK W. MUSER and RICHARD MUSER, Plaintiffs, v. CLARA WAITZFELDER, Defendant.

      Pledge to semvre loan — irregular sale of, under execution — effect of, when the ¡pledge is bought in by the pledgee.

    Interest to the amount of $829.53 being due to plaintiffs, upon a bond and mortgage given by defendant, it was agreed that a noté made by one M. W., secured by two shawls, should be taken in payment thereof, which was accordingly done. The note not being paid judgment was recovered against the maker and an execution issued, under which the shawls were levied upon and sold at plaintiffs’ store, and bidden in by them for $150. This action was brought to recover the balance of the interest from defendant, on the ground that M. W. was insolvent when the note was given, of which fact plaintiffs were then ignorant. The plaintiffs were nonsuited, on the ground that the sale of the shawls under the execution was irregular.

      Held, that this was error; that even if the sale were irregular it simply left the shawls in the hands of plaintiffs as pledgees, and only entitled the defendant to have the full value of the shawls applied upon the debt.
    Motion for a new trial, on exceptions ordered by tbe court to be beard bi tbe first instance at General Term.

      D. M. Porter, for tbe plaintiffs.

      Lyman Rindshojpf, for tbe defendant.
   Dayis, P. J.:

On tbe 28tb of April, 1875, tbe plaintiffs bold a bond, secured by a mortgage executed by tbe defendant upon certain premises in tbe city of New York. Interest to tbe amount of $829.53 bad accumulated on said bond and mortgage, which tbe defendant desired to have released in order to enable him to transfer the mortgaged property to a purchaser. Tbe plaintiffs consented to release tbe same on receiving a note for that amount, made by one M. Waitzfelder, secured by two camels' hair shawls. Tbe note was made and tbe shawls were delivered to the plaintiffs, and they released tbe claim for interest on the bond and mortgage. Tbe note not having been paid at maturity, tbe plaintiffs brought suit on the same against the maker and recovered judgment for the amount thereof and issued execution to the sheriff, who levied upon the two camels' hair shawls held as collateral security, and sold the same, after due notice, at the store of the plaintiffs’, who, through one of their clerks, bid off the shawls for the sum of $150. This action was afterwards' brought against the defendant to recover the balance of the interest, on the ground that Waitzfelder, at the time his note was taken, was wholly insolvent and the note was worthless.

At the trial evidence was given showing the recovery of the judgment on the note, the issuing of the execution, and the levy and sale of the shawls thereunder. Evidence was also given tending to show that, at the time of the making of the note, Waitz-felder was insolvent. The deputy-sheriff who made the sale under the execution testified to the levy on the shawls by direction of the plaintiffs’ attorney, and that, after the levy, he left the same with the plaintiffs, taking their receipt therefor; that he advertised the sale for the usual period, to be made at the store of the plaintiffs, and sold the same at the advertised time and place at public auction; and he also testified that he regarded the place where the shawls were sold as a good place, because they brought a better price than he could sell them for elsewhere ; that it was not unusual to levy on goods and sell them at the place where levied, but that he generally removed goods when levied upon to an auction house for sale.

At the close of the plaintiffs’ case the defendant’s counsel moved to dismiss the complaint upon the pleadings and proof offered by the plaintiffs. The court said it would hear the plaintiffs upon the question as to whether there was any sale by which the defendant was bound, and after argument, the court granted the motion and dismissed the complaint, and exception was taken.

It is obvious that the court below dismissed the complaint altogether upon the ground that the defendant was not bound by the sale of the shawls as made by the deputy-sheriff. This seems to us to have been a question the determination of which did not dispose of the action. The shawls were held as collateral security for the payment of the note. They were pledges in possession of lihe pledgee, the title to which remained in the pledgor; but when tbe note became due, the possession of the pledge did not suspend the right of the plaintiffs to proceed by action for the recovery of the debt in respect of which the pledge was taken. (Lawton v. Newland, 2 Stark, 72; South Sea Co. v. Duncombe, 2 Strange, 919; Scott v. Parker, 1 Q. B. [41 E. C. L.], 809.) The subsequent acts of the plaintiffs in causing, through their attorney, the levy to be made and the shawls to be sold, may have been irregular as a mode of disposing of the pledge, but as they themselves became the purchasers on the sale, the legal effect would be that the shawls would still remain as pledges in their hands for the payment of the debt, and their liability to account for the same, or to deliver them up on payment of the debt, would remain unaffected by the irregular sale. (Story on Bailment, § 315; Middlesex Bank v. Minot, 4 Metc., 325; Jervis v. Smith, 7 Abb. [N. S.], 217.)

This action was brought to recover the original indebtedness of the defendant, on the ground that it was not paid by the note of 'Waitzfelder, because he was insolvent at the time of the transaction, and because the note was received under a mistake of the parties in respect to his solvency. The answer does not deny that the plaintiffs believed 'Waitzfelder to have been solvent, and were mistaken as to that fact, but merely denies that the defendant had any knowledge or information sufficient to form a belief as to whether Waitzfelder was insolvent; and it avers that the plaintiffs did not contemplate the solvency of Waitzfelder, but relied solely upon the sufficiency of the securities offered to and accepted by them. It also avers that the plaintiffs could, by reasonable diligence, have ascertained the true pecuniary responsibility of Waitz-felder, but neglected to exercise such diligence. These averments, so far as they are material, are affirmative allegations to be established by the defendant, and do not seem to dispute that Waitz-felder was in fact insolvent, or that the plaintiffs acted under a belief of his insolvency. The evidence in the case tended to show a state of facts which entitled the plaintiffs to go to the jury upon the question of Waitzfelder’s insolvency, and of their having mistakenly believed him to be solvent at the time the note was received, a finding upon which, in their favor, would entitle the plaintiffs to recover, (Roberts v. Fisher, 43 N. Y., 159.)

If the plaintiffs have applied the securities upon the indebtedness, as in substance the complaint alleges they have clone, ancl if the mode of application were irregular, the only effect, as it seems to us, would be to entitle the defendant to insist that the application should be for the full value of the shawls. There was enough-in their third answer to entitle them to assert this claim, and the ruling of the court, that the sale was irregular and did not bind the defendant, simply opened the question of the value of the shawls for the consideration of the jury upon such evidence as should be given upon that question. It is insisted by the learned counsel for the defendant that the evidence of insolvency was not sufficient. We do not think the defendant is in a position to raise that question, because, if the court below had passed upon that question, non-constat, but that the plaintiff could and would have been permitted to have given further evidence upon that issue. We think, however, there was enough upon that issue to have justified sending the case to the jury, and that is sufficient to dispose of the point.

The motion for a new trial should be granted, with costs to abide the event.

INGAlls, P. J., concurred; Beady, J., taking no part.

Motion for new trial granted, costs to abide event.


source: Caselaw Access Project

author: Davis, P. J.:

license: Public Domain

text:
    JAMES W. BRINCK, Appellant, v. THE MAYOR, ALDERMEN AND COMMONALTY OF THE CITY OF NEW YORK, Respondent.

      Board of police justices — ■ statement of expenditures by, under § 112, chapt. 335 of 1873 — subject to revision by board of estimate and apportionment>
    When, the hoard of police justices of the city of New York submits, as required by section 112 of chapter 335 of 1873, to the board of estimate and apportionment, a statement as to the salaries and expenditures to be made by them, the board of estimate and apportionment have power, under section 4 of chapter 538 of 1873, to determine whether the expenditures and number of persons employed about such courts, and the salaries paid, are more than the public interests, in their opinion, require.

      When they strike from the appropriation the whole amount contained in the report for the salaries of janitors, such action is equivalent to a determination that the services of such janitors are no longer required, and that they should not thereafter be employed.
    MotioN for a new trial on exceptions, ordered to be beard in the first instance at the General Term, after an order directing the dismissal of the complaint.
    The board of police justices, acting under section 12 of chapter 538 of 1873, on February 7, 1876, appointed the plaintiff janitor of the fifth district police court, at an annual salary of $1,500, payable monthly, at the end of each month. The plaintiff, under his appointment, rendered services as janitor during the month of March, 1877. The board of police justices, on September 22, 1876, presented to the board of estimate and apportionment an estimate for the year 1877, which made provision for the payment of appellant’s salary as janitor, and for the payment of the other janitors appointed by the board of police justices. The defendants refused to pay the plaintiff his salary for said month of March, for the reason that the board of estimate and apportionment failed to make an appropriation for the salary of janitors appointed by the board of police justices, and in their final estimate no provision was made for such payment.
    This action was brought to recover plaintiff’s salary for the month of March, 1877. The justice, before whom the case was tried, dismissed the complaint, on the ground that no appropriation had been made by the board of estimate and apportionment, but ordered that the exceptions taken on the trial be heard in the first instance at General Term.

      John J. Lindsay, for the appellant.

      I). J. Lean, for the respondent.
   Davis, P. J.:

It was held in Bergen v. The Mayor (5 Hun, 243) that the board of police justices of this city have power to appoint janitors as necessary attendants of the police courts and to remove the same at pleasure. Chapter 538 of the Laws of 1873, section 4, provides that “it shall remain the duty of the city of New York and its several officers to supply and pay for whatever may be necessary for the transaction of the business of the police courts and board of police justices in said city, as it was before the passage of this act, to supply all proper books, stationery and furniture, and to pay all the salaries and compensation, expenses and disbursements herein authorized, and for that purpose the supervisors of the city and county of New York, or other proper financial officers of said city, shall annually cause the proper amount to be levied, raised and appropriated for the purposes aforesaid ; but the proper authorities of said city may require all such expenditures, and the number of persons employed about such courts, and the salaries (save those herein fixed), to be no more than the public interests in their opinion require.”

This provision clearly places the number of persons employed and the salaries to be paid within the control of “ the proper authorities of said city,” Section 112 of the charter of 1873, chapter 335, 'Laws of 1873, creates a board of estimate and apportionment, who are first to make a provisional estimate of the amounts required to pay the expenses of conducting the public business, etc., which provisional estimate is then to be subjected to the scrutiny of the board of aldermen, and afterwards, upon consideration of any objections or suggestions that may be made by the board of aldermen, is to become the final estimate appropriated and to be raised for the purposes mentioned in the charter.

This board of estimate and apportionment was “ the proper authority of said city,” referred to in chapter 538 above cited, who may require the expenditure and the number of persons employed about the police coux-ts of the city of New York, and the salaiies thereof, to be no more than the public interests in their opinion require. When the board of police justices reported to the board of estimate and apportionment, as required by section 112 of the charter, a statement as to the salaries and expenditures to be made by them, the board of estimate and apportionment undoubtedly had power to consider that report and to determine whether the expenditures, and the number of persons employed about such courts, and the salaries paid, were more than the pub-lie interests in tbeir opinion required. In this case they made such determination by striking out from the appropriation the whole sum contained in the report of the board of police justices as salaries for janitors. In Dunphy v. The Mayor (8 Hun, 479) this court held that a similar refusal to appropriate for the salary of a deputy-clerk was equivalent to a determination that the services of such deputy-clerk were not required by public interests, and that after such determination the lawful employment of the deputy-clerk ceased. That decision is controlling on this point, and the refusal of the board of estimate and apportionment to make any appropriations for the salaries or compensations of janitors of police -courts was, in legal effect, declaring that such janitors should be no longer employed. Their subsequent employment by the board of police justices was without authority, and the consequence is that there can be no recovery against the city for their compensation or salary.

This case does not come within the cases of Quinn v. The Mayor (44 How., 266; and Whitmore v. The Mayor, 5 Hun, 195; Aff’d, 67 N. Y., 21), because in respect to these officers the special statute of 1873, entitled “An act to secure better administration in the police court of the city of New York,” above cited, clothes the board of estimate and apportionment with power over the salaries and employment of these officers, notwithstanding the police courts are not a department of the city but belong to the judicial system of the State.

The result is that the motion for a new trial upon exceptions should be denied, and judgment ordered for the defendant.

Bbadt and INGALLS, JJ., concurred.

Motion for new trial denied, and judgment ordered for defendant.


text:
    FREDERICK BECK, Appellant, v. THE PHŒNIX INSURANCE COMPANY, Respondent.

      Tonnage of vessel — not limited to statute ton of this State.

    A policy of insurance issued upon a vessel in the city of New York contained the following provision: “Warranted not to load more than her registered tonnage with lead, marble, coal or iron on any one passage.” The registered tonnage of the vessel was 916 tons.

      Held, that the word ton, as used in the warranty, was not limited to that prescribed by the statute of this State (chapter 134 of 1851) to wit, to 2,000 pounds, but meant such weight as was recognized by the laws of Congress, or by established commercial usage at the time.

      Held, further, that loading the vessel with 901 11-20 tons of coal, at the rate of 2,240 pounds to the ton, was not a breach of the warranty.
    Appeal from a judgment dismissing tbe plaintiff's complaint.

      J. A. Shoudy, for tbe appellant.

      Jas. A. Blade, for tbe respondent.
   Dayis, P. J.:

This action is upon a policy of insurance made by tbe defendant, at tbe city of Now York, on tbe ship Elise Huger, insuring ber in tbe sum of $5,000. Tbe pobey contained tbe following provision: “ "Warranted not to load more than ber registered tonnage with lead, marble, coal, or iron, on any one passage.” The “ registered tonnage” of tbe ship was shown to be 916 tons. In May, 1866, she took at tbe port of New York a cargo of coal to be carried to a port in Japan, and gave a bill of lading for 901-g-g-tons of coal at tbe rate of 2,240 pounds per ton. She afterward sailed for ber port of destination and was lost. Tbe court below dismissed tbe complaint, and gave judgment of nonsuit, on tbe ground that tbe warranty above quoted was broken. Tbe court rejected various offers of parol evidence-to show usage or custom in such cases, and held in substance that tbe statute of this State fixing tbe standard of weights and measures, and defining a ton to be 2,000 pounds, controlled tbe contract of insurance in this case. The registered tonnage of vessels is ascertained by rules provided by the act of Congress, and the word “tonnage," in this country, when applied to ships, signifies “the internal cubical capacity in tons of 100 cubic feet each, to be ascertained in the manner prescribed by Congress.” (Inman Steamship Co. v. Tinker, 94 U. S., 243; U. S. R. S., § 4153.)

The registered tonnage of vessels is purely a subject of Federal regulation, and not at all dependent upon or controlled by the legislation of the several States. A contract, therefore, which adopts “the registered tonnage” of a ship as the limit to which her cargo shall be subjected, must be construed as having reference to the laws of Congress, and as meaning such weight per ton as is recognized by those laws or by established commercial usage at the time those laws were enacted. Otherwise, the registered tonnage of vessels would be a variable quantity, dependent upon the statutes of the several States or upon the usages and customs of different localities in the absence of statutes. In those States in which a ton is declared, either by statute or commercial usage, to consist of twenty hundred-weight of 112 pounds each, the registered -tonnage of a vessel would be different from that in such States as declared by statute that a ton shall be 2,000 pounds; and hence contracts of this character, although referring to a measurement prescribed by the laws of Congress, would depend for their interpretation upon the laws of the locality where the vessel chanced tomate her cargo.

Our statutes regulating weights and measures contains this provision : “All contracts hereafter made within this State for work to be done, or for anything to be sold or delivered by weight or measure, shall be taken and construed according to the standards of weight and measime herein adopted as the standards of this State.” (Laws of 1851, chap. 134, § 14; 2 R. S. [6th ed.], 801.) And the same statute prescribes, as to weight, that a ton shall consist of 2,000 pounds.

The court below held that the warranty in the policy, that the cargo of the ship should not exceed her registered tonnage, was to be construed by this section of our statute, and that no parol evidence could be given tending to show that, by established commercial usage, a ton of coal meant a gross ton of 2,240 pounds. This, we think, was error; for, in our opiuion, it is not the intent of our statute to control or effect the registered tonnage of sea-going vessels so as to limit the weight that could be carried for each registered ton to 2,000 pounds. This was, we think, left open to be controlled by the laws of Congress or by established commercial usage. So far as relates to imports, the act of Congress of August 30, 1842, fixed the ton at twenty hundred-weight, each hundred-weight being 112 pounds avoirdupois. If the same cargo shipped in this case had been taken at a foreign port, to be brought to this country, there seems to be no reason to doubt that the contract would not have been broken by taking tons of 2,240 pounds each, because, in that case, it would fall directly under the statute just cited, 'which declares a ton to be twenty hundred-weight of 112 pounds each. We think, by analogy, if there be no express act of Congress upon the subject (and we have been able to find none), the same rule should apply, and it should be held that the registered tonnage was not exceeded by the cargo in this case. In the absence of any statutory prescription controlling the question, it was open to show the established commercial usage, and the oiler to do so was erroneously rejected.

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

INGALLS, J., concurred.

Present — Davis, P. J., Beady and Ingalls, J.T.

Judgment reversed; new trial granted ; costs to abide event.


text:
    RICHARD BELL and CHARLES F. SMITHERS, Respondents, v. THOMAS TILDEN, Appellant.

      Seal parties in intei’est —mere collecting agents are not.

    ■Where a foreign, corporation, owning a bill of exchange, sent it to its agents in New York for the special purpose of having an action commenced upon it, such, agents having no interest in the hill or its proceeds; held, that such agents were not the real parties in interest, and could not maintain an action thereon in their own names
    Appeal from a judgment in favor of the plaintiffs, entered upon a verdict directed by the court. The action was brought to recover $3,000 in gold coin on the acceptance by the defendant of a bill of exchange, drawn payable to the order of the drawer thereof and indorsed by him.

      Alexander Ostrander and Gilbert 0. Hulse, for the appellant.

      Redfield & Ilill, for the respondents.
   Davis, P. J.:

On the trial the plaintiffs produced a bill of exchange described in the complaint, and proved the indorsement thereof, made by the payee in blank, and after reading the same in evidence rested. This possession and production was prima facie evidence of ownership in the plaintiffs. The motion to dismiss the complaint pn the ground that the plaintiffs had not shown that they were the real parties in interest and bona fide holders was properly denied. The defendant then called one of the plaintiffs, and proved by him that the plaintiffs .were agents of the Bank of Montreal, in Canada, and that the draft was sent to plaintiffs by the Bank of Montreal, with instructions to put it in suit against the defendant, and for that special purpose, and the plaintiffs put it into the hands of their attorneys for the purpose of being sued. The following question was then asked: “ Have you or your partner any interest in the proceeds of that draft ? ” This question was objected to as immaterial. The objection was sustained, and the defendant duly excepted. Several questions of like import were asked, objected to and excluded, and exceptions taken. No further evidence was given tending to show any ownership or interest in the plaintiffs in the bill of exchange. At the close of their testimony the defendant’s counsel again moved to dismiss the complaint, on the ground that mere naked agents, as plaintiffs are proved to be, cannot, not being the parties in interest, sue on such an obligation. The court denied the motion, and defendant duly excepted. The evidence showed clearly that the plaintiffs were mere naked agents of the Bank of Montreal, having, in fact, no legal title to the paper in suit, and no interest whatever therein.

The presumptions arising from possession of the paper were completely rebutted and overthrown, whenit appeared affirmatively that the instrument was not indorsed to the plaintiffs but the Bank of Montreal, and that the plaintiffs came into the possession thereof, as agents of the bank, without any interest in the paper, with instructions to put it in suit against the defendant, and for that special purpose. This state of facts distinguishes the case from all those cited by the learned counsel for the respondent. In each of the cases cited, with possibly the exception of Hays v. Southgate (10 Hun, 511), it distinctly appeared that the legal title was in the plaintiffs; and the case of Hays v. Southgate is distinguishable from this by the fact that in this case it affirmatively appeared that the possession of the plaintiffs was that of a naked agent. The possession of an agent is the possession of the principal, and, of itself, carries no legal title to the agent. The Code declares that every action must be prosecuted hi the name of the real party in interest. (Code, § 111.) It was subsequently held m Sanford v. Sanford (45 N. Y., 723), that this section of the Code was not altogether abrogated by* judicial repeal; and the criticism of Peceham, J.., upon the cases referred to, seems to have been adopted by the court.

The general rule before the Code was that actions could not be maintained in the name of mere agents. (Harp v. Osgood, 2 Hill, 216; Taintor v. Prendergast, 3 id., 72; Paley on Agency, chaps. 4, 5.).

To enable an agent to maintain an action in his own name, there must be something more than the mere powers of a naked agent. It was clearly shown in this case that the plaintiffs had nothing •but such powers.

To sustain the ruling in this case, would be to hold that all foreign corporations may maintain actions in this State in the name of mere naked agents, and thus evade the provisions of our statute requiring bonds for costs to be given by such foreign corporations ; and indeed it -would allow all actions upon negotiable contracts to be brought in the names of simple collecting agents.

The judgment should be reversed, new trial granted, with costs to abide the event.

INGALLS, P. J., concurred.

Present — Davis, P. J., Beady and INGALLS, JJ.

Judgment reversed, new trial ordered, costs to abide event.


text:
    JOHN A. WEEKS, Plaintiff, v. FRANCIS TOMES and others, Defendants. In the Matter of the Petition of ADRIAN ISELIN to be Relieved from his Purchase.

      Notice of lis pendens — not effective unless the complaint he filed — when intervening creditor not hound by order directing complaint to he filed nimc pro tmc.

    In this action, brought to foreclose a mortgage, a notice of the pendency of the action was filed 1STo member 22,1877. January 14,1878, the complaint was filed ; on January sixteenth judgment was entered, and on February seventeenth an order was made directing that the complaint therein be filed, nunc pro tunc, as of November 22, 1877. January 9, 1878, a judgment-creditor of the husband of the mortgagor, who was not made a party to the foreclosure action, commenced an action to set aside a conveyance of the property from the husband to his wife as fraudulent, and filed a notice of pendency of action and complaint.
    Upon an application to compel a purchaser at a sale under the decree of foreclosure to complete his purchase; held, that the title was defective, as such judgment-creditor had not been made a party to the foreclosure action, and that he was not bound by the order directing the complaint to be filed, rnmcpro time, as he had no notice thereof.
    Appeals by Adrian Isolin from an order denying his motion to be relieved from his purchase on a foreclosure sale, and from an order requiring him to complete such purchase.

      JB. F. Lee and F. DeP. Foster, for Iselin, appellant.

      G. H. Forster, for the plaintiff, respondent.
   Davis, P. J.:

Both of these appeals involve the same questions. We think that all the objection made by the petitioner to the sufficiency of the title were properly disposed of by the court below, except one.

It appears in the case, that in the above entitled action, notice of lis pendens was filed on the 22d of November, 1877 ; that on the 9th of January, 1878, one Melvain, who had recovered a judgment against Benjamin Tomes, commenced an action to set aside the conveyance by Tomes to his wife of the premises, covered by the mortgage in this action, charging that it was fraudulent as against him, and to declare his judgment a lien on the premises ; and on that day he filed his complaint and notice of pendency of action. It further appears that on the fourteenth of January the complaint in this action was filed, and on the sixteenth the usual judgment of foreclosure and sale was entered in this action, directing the sale of the premises by the receiver. On the seventeenth of February following an order was made in this action by the Special Term that the complaint therein be filed, nunc pro tunc, as of November 22, 1877. Melvain was not a party to this action, either at its commencement nor when the order directing the complaint to be filed nunc pro tunc was made, nor at any other stage.

The question presented upon these facts is whether the order of the court directing the filing of the complaint, nunc pro tunc, as of November 22d, 1877, was valid as against Melvain and his action.

The Code (section 132) provides “that in an action affecting the title to real property, the plaintiff, at the time of filing the complaint or at any time afterwards, * * * may file -with theclerk of each county in which the property is situated, a notice of the pendency of action, containing the name of the parties, the object of the action, and the description of the property, in that county affected thereby.” It also declares that from the time of filing only, shall the pendency of the action be constructive notice to a purchaser or incumbrancer of the property affected thereby. It is apparent, from the language of this section, that the notice is wholly inoperative as against incumbrancers or purchasers until the complaint be also filed. The language of the Code admits of no other construction, and the courts have so held in Burroughs v. Reiger (12 How., 171), and Leitch v. Wells (48 N. Y., 585).

At the time Melvain commenced his action and filed his notice of Ms pendens, no complaint in this action was on file. He acquired, therefore, certain rights entitling him to be considered an equitable incumbrancer, of which he could not be deprived by any subsequent proceeding in this action, to which he was not a party.

The power of the court to amend by filing papers nunc pro tunc is indisputable, and the operation of such an order upon all persons who are parties to the action in which it is made is not controverted. But such an order is not operative as against persons who are not parties to the action, and have no opportunity to be heard upon the question, whether or not it should be granted. Melvain not being a party to the action, could neither be prejudiced nor affected by the order. He might have been brought in by an amendment, and made a party to the suit for the foreclosure of the mortgage, giving him an opportunity to be heard upon the motion for leave to file the complaint nunc pro tunc, and in that case quite a different question would have arisen.

As it is, however, not being a party, it seems to us impossible to maintain that his rights are cut off or affected by the order of the Special Term directing that the complaint be filed, nunc pro tunc, as of November 22. It appears, by the record handed up with the appellant’s points, that his action subsequently ripened into a judgment setting aside the deed to his wife, and declaring Melvain's judgment a lien upon the lands, and appointing a receiver to take possession and collect rents for his benefit. That, however, has all occurred since these motions, and therefore cannot be considered as affecting the result of the motions themselves. The fact illustrates, however, the serious character of the objection and the injury that may be sustained by a purchaser compelled under such circumstances to take title. It is held by the courts that a purchaser on a judicial sale is entitled to demand a good title, and it is not material that the interest of any of the incum-brancers not brought in is small in amount. (Smith v. Wells, 69 N.Y., 600.)

The learned judge below thought this objection to the title obviated by the fact that Melvain may come m and participate in any surplus that would arise upon the sale. If he should come in and participate in the surplus, that would, doubtless, preclude him from asserting any further claim against the premises purchased by the relator. But non constat that he will do this and he is not bound to do it; he may, undoubtedly, file his bill to redeem the premises from the sale based upon the lien of his judgment as established in his action, and for leave to pay off the amount due on the incumbrance notwithstanding the sale.

The purchaser is not bound to take a title subject to the embarrassment of any such contingency. His objection on that ground, we think, was well taken, and his petition, to be relieved, should have been granted, and the motion to compel him to complete the purchase should have been denied.

The orders below must be reversed, with ten dollars costs of one appeal besides disbursements, and orders entered granting the prayer of the petitioner according to the course and practice in such cases.

INGALLS, J., concurred..

Present — Davis, P. J., Beady and Ingalls, JJ.

Orders reversed, with ten dollars costs of one appeal, besides disbursements; orders to be entered granting the prayer of the petitioner.


text:
    STRATFORD P. DAVIDSON and EDWARD R. JONES, Appellants and Respondents, v. IGNACIO F. ALFARO, FREDERICK R. COUDERT, CHARLES COUDERT, Jr., and LOUIS L. COUDERT, Appellants and Respondents. SAME v. SAME.

      Equitable right of set-off — when allow?d — power of court to protect an attorney’s lien for costs.

    Prior to January, 1872, the defendant Alfaro made an agreement with the plaintiffs to aet as their agent in obtaining orders for the purchase and sale of stock and gold, which agreement terminated November 12, 1872. December 21, 1872, plaintiffs commenced an action to recover $5550 for over-payment to Alfaro, in which the latter appeared by Coudert Brothers, The action was referred, and on August 26, 1876, judgment was entered for the plaintiffs for $636.81 damages, and $427.67 costs.
    In February, 1S73, Alfaro, by Coudert Brothers, commenced an action in the Superior Court against the plaintiffs for a breach of the same contract, and on January 28, 1S75, recovered a verdict for $500, which was assigned to Coudert Brothers, and subsequently and after the commencement of- the present action collected under an execution against these plaintiffs.
    February 25, 1876, this action was commenced to have the claim of plaintiffs against defendant, then in litigation, set off against the judgment of the Superior Court assigned to Coudert Brothers, on the ground that Alfaro was and had been insolvent.

      Held, that the fact that plaintiffs’ claim was unliquidated did not prevent the court, as one of equity, from allowing it to be set-off against the judgment, as it appeared that Alfaro was insolvent, and as the claims in both actions grew out of the same contract.
    That the Coudert Brothers stood in no better position than their assignor.
    That the fact that the judgment had been paid did not deprive plaintiffs of their right to a set-off, as the payment was involuntary and Coudert Brothers, to whom the payment had been made, were pai-ties to the action.
    That though, in an action to enforce a statutory right of set-off, the court cannot protect an attorney’s lien for costs; yet where, as in this case, the applicant relies upon the inherent equity powers of the court, such lien will be protected and enforced.
    Cross-appeals from a judgment, entered upon tbe trial of this action by tbe court, without a jury.
    Tbe plaintiff appealed from so much of the judgment as limited tbe set-off provided for in tbe judgment to tbe sum of $500. Tbe defendants appealed from each and every part of the judgment.
    Tbe action was brought to have a claim of the plaintiffs against tbe defendant Alfaro, set-off against a judgment recovered by him against them, and thereafter assigned to his attorneys ■ it was commenced February 25, 1876.
    The court found, among other things, that on or about the 20th day of November, 1872, the plaintiffs commenced an action in this court against the defendant Ignacio F. Alfaro, to recover the sum of $550.20, with interest from November' 11, 1872, being the amount of certain over-drafts upon the plaintiffs by the said defendant Alfaro, in excess of the compensation to which he was entitled for his services under an agreement in writing made by and between the said plaintiffs and the said defendant, under which the said defendant Alfaro was employed to obtain orders for gold and stocks. That the said defendant appeared in the said action by the firm of Coudert Brothers, his attorneys, and put in an ' answer to the said complaint denying any indebtedness to the said plaintiffs: that on January 24, 1874, an order was entered in the said action referring the action. The trial thereof was commenced on the 8th day of January, 1875, and was terminated in August, 1876; that such trial was commenced in January, 1875, and there had been fifty-five attendances and adjournments; that the plaintiffs’ case was entirely closed after a very few meetings in the month of February, 1875, and the defendant then entered upon its defense, and in August, 1876, the said referee made his report, dated August 22, 1876, in favor of the plaintiffs for $495.72, amount due, and $141.09 interest thereon, amounting together to $636.81, and judgment was thereupon entered in favor of the plaintiffs against the defendant Alfaro, on August 26, 1876, for $636.81 damages and $427.67 costs, making a total of $1,064.48; that the said defendant Alfaro had no property liable to sale on execution, and that he had been since the commencement against him of .the said action by the plaintiffs herein, on or about November 20, 1872, and is utterly insolvent.
    That after the commencement of said action by said plaintiffs against the said Alfaro, and on or about the 15th day of February, 1873, the defendant Alfaro commenced his action in the Superior Court of the city of New York against the plaintiffs herein, for the recovery of damages for an alleged breach of the said contract between the plaintiffs and the said Alfaro; that a trial of such action was had, and a verdict obtained for the sum of $500 damages in favor of the said defendant Alfaro, against the plaintiffs heroin, on January 28, 1875, and that on such verdict judgment was rendered on the 12th day of June, 1875, for the sum of $813.53 for the said damages and for the costs of such action; that an appeal was taken from such and judgment to the General Term of the said Superior Court, the same was affirmed with costs, and judgment of affirmance was thereupon entered against the plaintiffs above named on the 14th day of December, 1875, for the sum of $93.50 for such costs, and that executions upon the said judgments were, at the time of the commencement of this action, about to be issued against the plaintiffs for the collection thereof; that all the legal proceedings in each of the actions hereinbefore mentioned have been conducted on behalf of the said Alffiro by the said firm of Coudert Brothers, as his attorneys and counsel; that they have had the entire charge and conduct thereof, and that the defendants composing the said firm of Coudert Brothers have, at all times since the commencement of the action herein first above-mentioned, been well acquainted with all the circumstances connected with the defense of such action, and with the prosecution of the action secondly above-mentioned, and that they have been during and since the said period well acquainted with the insolvent condition of the defendant Alfaro ; that after the recovery of the verdict in the action in the Superior Court, by the defendant Alfaro, against the plaintiffs herein, and on the 1st day of February, 1875, the said Alfaro executed an assignment to the defendants, composing the said firm of Coudert Brothers, of the verdict rendered in the said action in the Superior Court, and the judgment to be entered thereon ; that such assignment was made in payment of a certain indebtedness of the said Alfaro to Coudert Brothers, of $375, on his promissory notes, given for professional services in other matters, and of $125 on account of their services in the two actions hereinbefore mentioned; that such assignment was accepted by the said- Coudert Brothers, with knowledge of the insolvency of the said Alfaro, but in good faith and in payment of a debt due them.
    That at the time of the commencement of this action the plaintiffs obtained and served upon the defendants an injunction order, made by one of the justices of this court, restraining the defendants herein, among other things, from issuing any execution on the judgments hereinbefore mentioned which had been obtained by the defendant Alfaro, against the plaintiffs, until the further order of this court; that on the day' following the service of such injunction order the defendants herein made an ex parte application to the justice who had issued such order, and obtained from him an order vacating the same, and immediately thereupon issued an execution to the sheriff of the city and county of New York on the judgment so recovered as aforesaid, and the said sheriff thereupon on the same day, to wit, on February 28, 1876, collected from the plaintiffs herein the full amount due on such judgment; and as conclusions of law found that the plaintiffs, by virtue of the claim held by them against the defendant Ignacio F. Alfaro, set forth in their action against him in the Supreme Court, and also in their complaint in this action, are entitled to an equitable set-off for the amount recoverable on such claim, and for which judgment was entered in favor of the plaintiffs against the said Alfaro on August 26, 1876, in the sum of $1,064.46 damages and costs, and interest thereon, against the judgment recovered by the said Alfaro against the plaintiffs herein in the Superior Court of the city of New York on June 12, 1875, and against the sum of money heretofore paid by the said plaintiffs on such judgment, so far only however as applies to the sum of $500, the amount of the verdict in such action, and interest thereon from January 28, 1875, and that such set-off was superior to the assignment held by the defendants Coudert Brothers ; that neither of the parties, plaintiffs nor defendants, were entitled to costs in this action as against the other.

      S. & F. Cowdrey, for the plaintiffs.
    Both claims having arisen from the same contract, and the plaintiffs’ claim having matured, although not in judgment, constituted an equitable set-off in favor of plaintiffs against the verdict and judgment recovered by Alfaro. (Story’s Eq. Jur., §§ 1434, 1435; Davis v. Austin, 1 Ves., 247; Hawley v. Cramer, 4 Cow., 717; Bush v. Lathrop, 22 N. Y., 535 ; McNeil v. Tenth Nat. Banlc, 46 id., 325; Schafer v. Reilly, 50 id., 67; Smith v. Felton, 43 id., 422, 423; Clark v. Coit, 1 Craig & Phil., 154; Myers v. Davis, 22 N. Y., 493; Barber v. Spencer, 11 Paige, 517; Cay v. Cay, 10 id., 369; Smith y. Fox, 48 N Y., 674; Bradley v. Angel, 3 N. Y., 475; Lindsay v. Jackson, infra ; Pignolet v. Geer, 19 Abb., 264; Trustees of Union College v. Wheeler, 61 N. Y., 105, opinion of Dwight C., and oases cited; Green v. Warwick, 64 id., 224; Grane v. Turner, 67 id., 440.) This principle distinctly affirmed in Zogbaumv. Parker (55 N. Y., 123), and Perry v. Ghester |'53 id., 240). The insolvency of Alfaro gives the absolute right! to plaintiffs to claim an equitable set-off against the judgmentjjlr any assignee thereof, although the plaintiffs’ claim be unliqui-dated. (Knapp v. Burnham, 11 Paige,' 332; Gummings v. Morris, 3 Bosw., 575; Simsony. Hart, 14 J. It., 74; Bradley v. Ani/el, 3 N. Y., 475; Lindsay v. Jackson, 2 Paige, 581; Barber, y. Spencer, 11 Paige, 517; Smith v. Felton, supra ; Boberts v. Garter, 38 N. Y., 107; Grocker v. Qlaughley, 2 Duer, 684; Gay v. Gay, supra; Perry y. Chester, supra; Grocker v. Qlaughley, 2 Duer, 684.) The payment by plaintiffs of the judgment recovered in the Superior Court was to the sheriff upon executions levied on their property. Being an involuntary payment, plaintiffs have, not lost any right. (Scholey v. Munford, 60 N. Y., 501, and cases cited at page 499.) The only effect of the payment is, that although the fund is not in the hands of the court so as to be reached by injunction, the parties holding the fund (the Messrs. Coudert) are in court, and the court has jurisdiction over them and can do complete justice. (Story’s Eq. Jur., § 64 k; Willard’s Eq. Jur., 48; Bidwell v. Astor Mut. Ins. Go., 16 N. Y., 263; Barlow v. Scott, 24 id., 45; Worrall y. Munn, 38 id., 137.) The court having once had jurisdiction will retain it for all purposes. (Hawley v. Cramer, 4 Cow., 717; Taylor v. Taylor, 43 N. Y., 584.) The court erred in giving defendants’ attorneys alien for costs. (Garr v. Mairet, 1 Hilt., 498; Moore v. Westervelt, 3 Sandf., 764; Bartle v. Gilman, 18 N. Y., 260.) In case of insolvency, the costs are the subject of set-off equally as well as the amount recovered, and the attorney loses his lien. (Purchase v. Bellows, 16 Abb., 107; Grocker v. Qlaughley, 2 Duer, 684; Stuyvesant v. Davies, 3 Ed. Ch., 537.)

      Ooudert Brothers, for the defendants.
    The court below erred in limiting their, lien to the costs. This lien extended to the full compensation due the attorneys for their services, and costs are not the measure of such compensation. (Marshall v. Meech, 51 N. Y., 143; Homey v. Second Ave. R. R., 18 id., 368; Ward v. Syme, 9 How., 16; Reade v. Ditpper, 6 T. R., 361; Wright v. Wright, 5 Weekly Dig., 97; Brown v. Mayor, 11 id., 25-28; P.kuty v. Swift, 10 id., 232; Elyy. Cooke, 9 Abb., 373.) The assignment being made in good faith and for a consideration was v¿d. (Roberts v. Barter, 38 N. Y., 107; Elyy. Cooke, 28 id., 37>f; Perry v. Chester, 53 id., 240; Prouty v. Swift, 10 Hun, 232.) As plaintiffs' demand against Alfaro was uncertain, disputed and unliquidated, it could not be set-off against a perfected judgment in a condition to be collected under execution. (Myers v. Davis, 22,N. Y., 489; Gordon v. Bowne, 2 Johns., 155; Burgen v. Tucker, 5 id., 107; De Figaniere v. Young, 2 Robt., 672; Prouty v. Swift, 10 Hun, 232; Duncan v. Lyon, 3 Johns. Ch., 359.)
   Davis, P. J.:

On the decision of this case the learned court below pronounced the following opinion:

Barrett, J. A statutory set-off on bill filed is a matter of strict right. Where the demands on both sides are liquidated by judgment, the case is brought within the provision of the statute, and no other equity is needed. That is not this case, for when the present action was commenced the plaintiff’s demand, although matured, was not liquidated by judgment. There is a class of cases, however, not specially provided for in the statute, in which equity affords relief. Even before the statute, courts of chancery were accustomed to allow set-offs where there were mutual credits, or whore the demands were connected. (Story Equity Jur., §§ 1434, 1435.) This was upon the ground either of the presumed intention of the parties, or of what is called a natural equity. (Id.) In this State it is settled by a long line of decisions that, ichere the defendant is insolvent, cross-demands, although independent, will be enforced; where that element (insolvency) comes in, it is not necessary that the plaintiff’s demand should be liquidated by judgment. (Gay v. Gay, 10 Paige, 369; Barber v. Spencer, 11 id., 517; Knapp v. Burnham, 11 id., 333; Pignolet v. Geer, 19 Abb. Pr. R., 264.) Nor that the defendants’ demand should ever have matured. It is sufficient if the plaintiff’s demand be due. (Lindsay v. Jackson, 2 Paige, 581; Bradley v. Angel, 3 Comstock, 475; Smith v. Felton, 43 N. Y., 419; Smith v. Fox, 48 N. Y., 674.)

The contention that if the demand bo not reduced to judgment, it must at least be undisputed or liquidated by a note or similar obligation is inadmissible. In Knapp v. Burnham (ubi. supra), there was an open account as well as promissory notes, yet the chancellor observed “that the defendants were not without remedy if they could establish the fact that the complainant was insolvent, so that they could not recover these demands against him by an ordinary suit at law.” In Smith v. Felton, and Smith v. Fox, the demands sought to be set-off were moneys on deposit with bankers.

Again, to require an undisputed claim would practically put an end to the right of equitable set-off. Why should a defendant admit, when mere questioning would throw the plaintiff out of court. The line is really drawn at uncertain damages, such as rest in the sound discretion of a jury. (Duncan v. Lyon, 3 Johns. Ch., 358; Livingston v. Livingston, 4 id., 292; Hepburn v. Hoag, 6 Cow., 613.) The set-off against a judgment, of a demand which has not been thus liquidated, will only be allowed on bill filed. It will not be allowed on motion in a court either of law or equity. The reasons are obvious, and if this distinction is kept in mind, the cases will be found to be entirely harmonious. It is quite clear, both upon principle and authority, that when the Messrs. Coudert took the assignment of the verdict, the plaintiffs’ right of equitable set-off had already attached. The cross-demands grew out of the same contract, and Alfaro was insolvent. The Messrs. Coudert knew these facts, and they took, therefore, subject to the equity in question. Indeed, without such knowledge the result must have been the same on general principles applicable to the assignment of a non-negotiable chose in action. The assignment was not in consummation of an original agreement between attorneys and client, by which the former were to have the verdict in payment for their services. Unfortunately no such agreement was made. The case, therefore, is not brought within the principle of Zogbaum v. Parker (55 N. Y., 120), and like cases.

But quite independent of the assignment, there is the attorneys’1 lien for the costs. That at least can be protected. In Nicoll v. Nicoll (16 Wend., 446), the bill was filed to enforce a statutory set-off., and it was held that the lien could not be let in to obstruct the legal right. “ On motion,” said CoweN, J., “ the courts proceed without the statute, on bill filed or trial at law they are within it, and must obey it.” That doctrine has since been repeatedly followed; but we have seen that the present case is not within the statute of set-oils, and that the plaintiffs’ rights flow from the inherent- powers of a court of equity, “ to put a stop to proceedings injurious or inconscientious.” (Stimson v. Hart, 14 Johns R., 74.) And to do what equity and justice demand. (Smith v. Felton (ubi. supra). It was only where courts of equity were called upon to apply the statute of set-off, that the power to tect the attorney’s lien was denied. Where the appeal is to inherent equity, Dunkin v. Vanderbergh (1 Paige, 622), and Gridley v. Garrison (4 id., 653), asserting such power, are still applicable.

As assignee of the verdict, the attorneys’ equity is inferior to that of the plaintiffs; but their equitable lien for the costs is superior and paramount. The payment of the judgment is no bar to relief; such payment was involuntary ; it was compelled after suit brought. It is a familar principle that when a court of equity has acquired jurisdiction for one purpose it may retain it generally; also, that when the whole merits are before the court, it will proceed and do complete justice between the parties by disposing of all questions between them. “The jurisdiction having once rightfully attached,” says Stoev, “shall be made effectual for the purpose of complete relief.

It may be added that the injunction to restrain the enforcement of the judgment, pendente lite, was properly granted and its dissolution ex parte must have been inadvertent or without careful consideration. There must be judgment for the plaintiffs, declaring them entitled to an equitable set-off to the extent of tha verdict and interest, and decreeing payment to that amount; but under all the circumstances of the case, and as the plaintiffs succeed only m part, without costs.”

In all of the views of this opinion, necessary to the disposition

of the case, we concur. The mutual demands between the parties arose out of the same contract and the business done thereunder. There was an inherent equity in favor of the plaintiffs, entitling them to ask the interference of a court of equity ex debito justitia.-This material fact distinguished the case from Zogbaum v. Parker (55 N. Y., 120).

While this is true in respect of the damages recovered by the defendant in his judgment against the plaintiffs, it is not true as regards the costs. The distinction in respect of costs where a party seeks to enforce a statutory right of set-off in a court of equity, and where he relies upon inherent equities independent of the statute, is well shown by the learned court in the opinion above cited. In the latter case the court of equity is at liberty to protect the attorneys’ lien. The costs of the action awarded upon a recovery are no part of the judgment to which the purely equitable set-off attaches, and hence there seems to be no difficulty in upholding in this case the equitable lien of the attorneys for the costs recovered by the defendant.

The assignment of the judgment by the defendant to his attorneys was subject, for two reasons, to the equities of the plaintiffs: First. Because the attorneys had notice of the several facts upon which those equities depend, or out of which they spring; and, Second. Because the nature of the claim for which the verdict was recovered was such that the assignee was bound to take it subject to all existing equities.

Upon careful examination we see no reason to interfere with the judgment in any respect. Costs were in the discretion of the court below. Under the circumstances, the discretion seems to us to have been properly exercised.

The result is that the judgment should be affirmed on both appeals, without costs to either party as against the other.

Beady and Iygalls, JJ., concurred.

Judgment affirmed on both appeals, without costs to either party on the appeal.


author: Beady, J. :

text:
    JOHN J. TOWNSEND, Trustee, Appellant, v. THE MAYOR, ALDERMEN AND COMMONALTY OF THE CITY OF NEW YORK, Respondents.

      Board of estimate and apportionment in the City of New York — act creating, constitutional.

    Chapter 779 of 1878, creating the mayor, the comptroller, the president of the hoard of aldermen, and the president of the department of taxes and assessments of the city of New York, a hoard of estimate and ajiportionment, to estimate and certify such amount as it shall he necessary to raise hy taxation in the city of New York, for county purposes, and empowering and directing the hoard of supervisors of the county of New York to cause the amount so certified to he raised and collected annually, hy tax upon the estates, real and personal, within the city and county of New York, is constitutional and valid.
    Appeal from a judgment in favor of the defendant, entered upon the trial of this action by the court, without a jury.
    The action was brought to procure the cancellation of a tax, on the grounds that the laws under which it was levied were unconstitutional. The question was whether or not the acts creating the board of estimate and apportionment, in the city of New York, were constitutional. The acts creating the board and authorizing the board of supervisors to levy a tax are chapter 573 of 1871, chapter 779 and chapter 335 and chapter 757 of 1873. Section one of chapter 779 of 1873 is as follows, viz.: “The mayor, comptroller, the president of the board of aldermen, and the president of the department of taxes and assessments of the city of New York, shall constitute a board of estimate and apportionment, and it shall be their duty, annually, by the concurring vote of all the members of said board to estimate and certify, in the manner provided in section 2 of chapter 573 of the Laws of 1871, such amount as shall be necessary to be raised by taxation in the city and county of New York for county purposes; and the board of supervisors of the county of New York are hereby empowered and directed to cause the amount so certified to be raised and collected annually by tax upon the estates, real and personal, within the city and county of New York, subject to taxation.”
    The following is the opinion delivered at the Special Term ;

      “ YáN BiíüNt, J. :
    “ This is an action brought by the plaintiff to test the power of. the Legislature to create a board of estimate and apportionment, for the purpose of ascertaining the amounts which should be raised by the board -of supervisors for the expenses of the city and county of New York.
    “I will first consider the question, so far as it may relate to the powers of the board of estimate and apportionment, to determine the sums to be raised by the board of supervisors for city purposes.
    “In the consideration of this qustion it is proper to bear in mind what the courts have said in respect to the powers of the Legislature of the State of New York.
    “In the case of the Town of Guilford v. The Supervisors of Chenango County (13 N. Y., 143), the court say : “ The general or Federal government is one of derivative and limited powers, and as a consequence Congress, the legislative branch of that government, can only exercise those prerogatives which are by the Constitution conferred upon it. The taxing power is, by section eight of that instrument limited. Uniformity of Federal duties, imposts and excises throughout the United States is also provided for by the same section. And the ratio in which direct taxes shall be apportioned among the several States is fixed by section two. These limitations and restrictions result necessarily from the limited and derivative character of the Federal government; but our State government is an independent existence-representing the sovereignty of the people. The power of the Legislature is the power of that sovereignty, and is supreme in all matters pertaining to legitimate legislation, except in those instances where the people have in their fundamental law limited or restricted it. Taxation is indisputably a legislative power. The Constitution of this State will be searched in vain for any clause which contains any restriction or limitation on the taxing power of the Legislature. Provisions there are, regulating the manner hi which bills appropriating the public moneys for local or private purposes, or bills imposing taxes, shall be passed. * * * Wherever these formalities are observed, the Legislature has the right to appropriate the public moneys for local or private purposes, and to impose a tax upon the property of the whole State, or any portion of the State, or any particular or specified kind of property. If it is feared that this power may be abused, or if it is in fact abused, neither the apprehension nor the reality prove the nonexistence of the power.” It therefore follows that the Legislature have the absolute control of the question of taxation, except so far as they may be limited, by the provisions of the Constitution."
    Section 9 of article 8 of the Constitution of 1846 provided as follows: ‘1 It shall be the duty of the Legislature to provide for the organization of cities and incorporated villages, and to restrict their power of taxation, assessment, borrowing money,” etc. The language of this section clearly recognizes the right of the Legislature to confer upon any city the right to determine what mo.neys should be raised for municipal purposes under such restrictions as the Legislature may see fit to impose.
    There is no limitation in the Constitution which at all affects the right of the Legislature to place the power of determining the amounts to be raised for municipal purposes in the hands of such municipal officers as they may see fit, and their power, unless so limited, has been held to be in the case above cited, in all respects relating to taxation, supreme. The only limitation of this ¡sower contained in the Constitution is that providing that the Legislature shall restrict the power of- taxation of cities and villages. That the Legislature is the sole judge of what restrictions shall be imposed upon taxation by municipal corporations, in pursuance of this requirement of the Constitution, has been frequently held by the courts of this State. (People ex rel. Griffin v. The Mayor of Brooklyn, 4 N. Y., 439; The Bank of Rome v. The Village of Rome, 18 id., 38.) And the courts have no power to review the action of the Legislature.
    The Legislature, therefore, had the power to provide that the board of estimate and apportionment shall determine the amount which should be raised for municipal purposes, and they imposed the following restrictions upon the action of the board:
    1 ‘ First. It could only appropriate such amounts as were required for the actual expenses of the city government for the ensuing year.
    “ Second. Its appropriations were to be based on estimates furnished by the departments and the board of education.-

      “Third. Those estimates from the departments and the board of education were also to be furnished to the board of aldermen and published in the City Record.
    “Fourth. The board of aldermen had the right to suggest changes in the amounts appropriated.
    1 ‘ Fifth. The board was required to consider the suggestions of the board of aldermen, and then make a final estimate.
    “ Sixth. The estimate could only be adopted by the unanimous vote of the board.”
    Thus complying with the provisions of the Constitution, requiring them to restrict the power of taxation by a municipal corporation.
    We will now consider the question, so far as it may relate to the powers of the board of estimate and apportionment to determine the sums to be raised by the board of supervisors for county purposes.
    It is urged that the Legislature could confer this power only upon the board of supervisors. It is to be observed that the board of estimate and apportionment levy no tax, but simply determine what amount shall be levied by the board of supervisors, thus filling a function which the Legislature had exercised itself prior to the formation of the board of estimate and apportionment, the board of supervisors of the county of New York never having had conferred upon them the power of determining what moneys should be raised by taxation. It is proper to consider in this connection exactly the facts 'which were presented to the court in the case above referred to of the Town of Guilford v. The Supervisors of Chenango County.

    Cornell and Clark were formerly commissioners of highways of the town of Guilford, and as such, by the direction of the voters of the town, had sued the Butternuts and Oxford Turnpike Road Company. They were unsuccessful in the action, and were, after a long litigation, obliged to pay costs. The town then refused to reimburse them these costs. Cornell and Clark sued the town, and after prosecuting the action in the court of last resort ascertained that they had no legal remedy. They then applied to the Legislature, and procured an act authorizing the question of payment or not by the town to be submitted to the voters at the sue-ceeding town meeting. (Laws of 1851, cb. 16.) The voters decided that they would not tax themselves for any such purpose. Another application was made to the Legislature, which resulted in the passage of the act now'in question. (Laws of 1852, ch. 8.) The action was commenced by the town of Guilford to procure a perpetual injunction to restrain Cornell and Clark, and the board of supervisors of Chenango county, from proceeding to levy the tax authorized by this act, on the ground that the law was unconstitutional.
    The law authorized the county judge of Chenango county to appoint three commissioners, whose duty it should be to hear and determine the amount of costs and. expenses incurred by Cornell and Clark in the prosecution and defense of the suits mentioned. It authorized the commissioners to make an award under their hands, or that of a majority of them, which was to be filed with the county clerk of Chenango. It made it the duty of the board of supervisors of said county, at their next annual meeting after the filing of the award, to apportion the same upon the taxable property of the town of Guilford, and provide for its collection iu the same manner as other taxes are collected.
    The question was : Had ' the Legislature any power to enact such a law ? That is a law taxing the taxable property 'of a town to pay a claim of a private individual. It is to be observed that the Legislature, in the act referred to in this case, authorized three commissioners to determine the amount which Cornell and Clark should receive, and directed the board of supervisors to raise the same by tax. The court held that the power of the Legislature was absolute, and that there was no violation of the Constitution in the enactment of such a law.
    Now, what have the Legislature done in the creation of the board of estimate and apportionment ?
    They have recognized the fact that certain amounts must be raised for county purposes, and they have designated the board, under certain restrictions, as the power which should determine the amount to be raised by tlje supervisors.
    In the case cited, the commissioners determined the amount to be raised, and in the case at bar the board of estimate and apportionment is to determine the amount; and in each case the supervisors are directed to levy and raise by tax tbe amount so determined.
    The analogy between the two cases seems to be entirely perfect if the Legislature had the power to pass an act authorizing three commissioners, not in any respect representing the property to be taxed, to determine what amount should be levied upon the taxable property of a town to pay the claim of a private individual, how much more would they have the authority in the county of New York to devolve upon public officials the duty of determining the amount to be raised by taxation in this county for public purposes ? If the Legislature had the authority to appoint commissioners to determine the amount to be paid to Cornell and Clark, by the town of Guilford, and which was to be raised by taxation, how can it be that in respect to the expenses of the county of Now York they had not the same power ?
    Although it may have been the practice iu this State to confer upon boards of supervisors, except in the county of New York, the power of determining the amounts which should be raised by tax, yet it is clearly decided in the case above referred to that there is no provision of the Constitution requiring the Legislature so to do ; its power is supreme and unlimited, and it may exercise this power in any way which the public well-being requires, or will be promoted by it, and it is the sole judge of what is for the public good.
    If it should be claimed that the Constitution of 1846, by section 17 of article 3, has guaranteed to boards of supervisors powers of local legislation and administration, it has only in any event guaranteed those which these boards possessed at the time of the adoption of that Constitution, and the board of estimate and apportionment exercises no power which the board of supervisors of the county of New York has ever possessed; consequently, the Legislature has not, in the formation of the board of estimate and apportionment, in any manner abridged any powers which the board of supervisors of the county of New York have ever exercised. The board of estimate and apportionment, as I have said, levy no tax, and this has been conclusively shown by the opinion of the learned Attorney-General of the State, in an opinion recently given by him ; this power is exercised only by the board of supervisors.

      The case of the People ex rel. Hopkins v. The Board of Supervisors of Kings Co. (52 N. Y., 556) decides that the Legislature cannot delegate, under the Constitution, the power to lay a State tax, but does not decide that the Legislature cannot delegate the power to levy a local tax for a local purpose.
    In fact the Legislature has, in numerous instances, during the last thirty years, delegated the power of determining what amounts should be raised by tax, to boards of municipal and county officers, other than boards of supervisors, as follows: Section 25 of the charter of 1857 (ch. 446) delegated the power of determining what amounts should be raised by taxation for the alms-house department and the board of education to a board consisting of the president of the board of councilmen, the mayor and the comptroller. A similar provision was contained in relation to the ten governors of the alms-house in chapter 246, Laws of 1849, section 20 of chapter 510 of the Laws of 1860, provided that the amount to be appropriated to the department of public charities and correction should be determined by the commissioners of the department. Section 60 of chapter 503 of the Laws of 1864 created a board of estimate and apportionment, consisting of the commissioners of police and the comptroller of the cities of New York and Brooklyn, who wore to make an estimate of the sums required for the metropolitan police, and the board of supervisors were required to raise the sum needed after it had been submitted to and approved by an auditing committee; and this power of delegation, in respect to a local tax, is expressly recognized in the Constitution, as has been above shown, and is nowhere prohibited by it. It follows, therefore, that the Legislature had full power and authority to create the board of estimate and apportionment, and confer upon it the power of determining what amount should be raised in the city and county of New York for city and county purposes. The plaintiff’s complaint must be dismissed.”

      John J. Townsend, for the appellant.

      W. O. Whitney, corporation counsel.
   Beady, J. :

The very able argument of the plaintiff in this case has received due consideration, but it has. failed to convince this court that error was committed by the court below. The question presented is one affecting a power assumed by the Legislature for many years, and which has not been seriously assailed, and one with the exercise of which we could not interfere save upon the most satisfactory reasons, so conclusive, indeed, that there could be no doubt of the legality and necessity of such a course. The views that we entertain might, it is true, be elaborately stated, but the result must be in harmony with those briefly expressed by the learned justice at Special Term. We .think the distinction made by him between the delegation of the power of taxation for State and local purposes is correctly drawn, and adopt his opinion as conclusive.

The judgment should therefore be affirmed.

Davis, P. J., and INGALLS, J., concurred.

Judgment affirmed.


author: DANIELS, J.:

text:
    GEORGE B. CHASE, Respondent, v. THOMAS LORD and DAVID N. LORD, as Executors, etc., of RUFUS L. LORD, Deceased, Appellants.

      Chapter 308 of 1849 — insurance company organized, under — cannot carry on business until the capital stock is paid, in full — Liability of stockholder for debts — survives against his estate.

    Under chapter 308 of 1849, authorizing- the formation of insurance companies, no company is authorized to commence -to carry on business until the whole amount of its capital stock, as stated in its articles of association, has been paid in. It is not sufficient to authorize it to carry on business that $150,000 have been paid in, if its capital stock named in its charter exceeds that amount.
    When a company commences to carry on business before its capital stock is paid up in full, each of the stockholders is jointly and severally liable for all debts contracted by it.
    The liability of a stockholder for such debts survives his death, and may be enforced against his estate.

      Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury, and from an order denying a motion for a new trial, made upon the minutes of .the justice before whom the action was tried.
    The action was brought to enforce the payment by one of the stockholders, individually, of a claim against the Columbian Insurance Company.

      I). D. Lord, for the appellants.

      Win. O. Whitney, for the respondent.
   DANIELS, J.:

The Columbian Insurance Company, which was a corporation formed for the purpose of carrying on the business of marine insurance under the authority of chapter 308 of the Laws of 1849, on the 1st of February, 1865, issued a policy of insurance to the plaintiff in the sum of $50,000 on the ship Eagle Wing and her freight. During the continuance of this policy she became a total loss, and notice of such loss was given to the company about the 11th of October, 1865. The company became insolvent early in the year 1866, and its affairs passed into the hands of, and were closed up by receivers appointed by this court. The assets proved insufficient to pay any considerable portion of the debts of the company, and this action was prosecuted against the defendants to recover the amount due and owing under the policy on account of this loss. The testator was one of the associates in the organization of the corporation, and also a stockholder while it continued in the transaction of its business. The company was formed in the year 1857. Its capital, by the charter adopted, was declared to be the sum of $500,000, divided into 5,000 shares of $100 each, with liberty to increase it, by issuing additional shares of stock, to an amount not exceeding $1,000,000. This was still further increased by chapter 127 of the Laws of 1864, Avhich provided that the capital of the company should consist of $1,000,000, with liberty to increase it from time to time to the sum of $5,000,000, and under this authority, by resolutions of the board of directors, the capital was afterwards advanced, first to the sum of $2,500,000, aucl next to tbe sum of $3,500,000. The testator subscribed to eacb issue of stock in the advancement of the capital of the company, and paid in full all his several subscriptions, and all the stock which the company proposed to issue was subscribed for, and all the subscriptions under the last issue of stock provided for in advancing the capital of the company were paid, except those of three persons, who subscribed for 597 shares of the par value of $59,700 which was never paid. The last advance was made m the amount of the capital on the 30th of January, 1865, and on the first of the following month the policy in suit was issued.

Before the company commenced doing business, it received in cash subscriptions the sum of '$152,000 ; and the certificate of three persons, appointed by the Comptroller to make an examination of the facts, was made upon oath, stating that $150,000 in cash had been paid in, and was then possessed by and was a part of the capital of the company. No other certificate was at any time made showing the payment of any portion of its capital; and this was held at the trial to be insufficient to constitute a compliance with what the statute had required for the legal organization of marine insurance companies. For that reason it was further held that the testator, as a corporator and stockholder in the company, had become personally liable for the loss sustained by the plaintiff under the policy, and a verdict was accordingly directed against the defendants, who. were his executors. Whether these rulings •were correct is consequently the controlling point, required to be decided in the disposition of these appeals.

In order to form a company under chapter 308 of the Laws of 1849, it was necessary that not less than thirteen persons should associate and file in the office of the Secretary of State a declaration, signed by them, expressing their intention to form such company. That was required to comprise a copy of the charter proposed to be adopted by them ; and notice of their intention was * then required to be published for at least six weeks in a public newspaper in the county in which it was proposed to locate the company. (Laws of 1849, chap. 308, pp. 441, 442, §§ 1, 3.) After doing that the associates were empowered to open books for subscriptions to the capital stock of the company, and to keep them open ■until the full amount specified in tbe charter was subscribed; or, in case the business was proposed to be conducted on the plan of mutual insurance until propositions and agreements for insurance were entered into with at least 100 applicants, the premiums on which should bo $300,000, to entitle the company to do business in the city of New York, where this company was located. (Laws of 1849, §§ 4, 5.) The associates provided in their charter that the company to be formed by them might, from time to time, receive notes for premiums in advance of persons intending to receive its policies, after $200,000 of its capital stock should be subscribed for and actually paid. But it did not appear that anything had been done under that authority. The case proceeded on the theory that the company became incorporated, and afterward transacted business as a stock company; and in that view alone it will be material to consider it. As such it could not do business on a smaller capital than the sum of $150,000. (Laws of 1849, § 5.) But the amount to which that might be extended was no otherwise restrained, than by the requirement that whatever it might be it should be stated in the charter. (Laws of 1849, § 9, subd. 4.) And it was not provided that the business of the company could be commenced before the whole amount of its capital should be paid in. What was in terms provided was simply in the nature of a restraint, and that was that no company should be organized in the city and county of New York on any smaller amount of capital than $150,000. There was nothing in this section of the act authorizing any company organized under it to do business before all its capital, whatever that might be, was subscribed for and paid. It merely prohibited the organization of companies with less than the prescribed fund ; while the preceding section, declaring that the books might be kept open before the organization should be completed until the full amount of capital specified in the charter was subscribed, contemplated that the object so provided for would, in fact, be accomplished. It was the capital on which the company was to be organized that the act provided for and proposed to regulate; and it the company was not possessed of that capital it was not lawful for it to do business. (Laws of 1849, chap. 308, § 7.)

A construction that would not permit a company organized on a capital of $150,000 to do business until it bad all been paid in, and would, at tbe same time, allow another, whose capital might be millions, to proceed with its business after it had secured the same amount, would be entirely unreasonable, and it should have plain terms to warrant it before it could be properly adopted. There is nothing in this portion of the act which would warrant the conclusion that this was all that was intended to be required. If it had been, then the capital of the company, required to bo stated in the charter, would form no criterion whatever of its safety or business competency; but it might be made the artifice and device of deception and fraud, entailing loss beyond computation upon those who, in their business, could be induced to measure the ability of the company by the statement of what its capital might be, instead of what it actually was.

This was not the policy nor the terms of the law; but its provisions, though obscurely expressed, were evidently intended to require that the company should become fully possessed of all the capital which its charter was to state as that which was to be employed by it in the business. This intent was quite clearly made manifest by the section providing for the annual report and publication of the state of its affairs, and the attendant declaration that if, upon due examination of them, it should appear that the losses and expenses had exceeded the premiums received, in consequence of which the capiLal had become deficient to the extent of twenty-five per cent, that then the officers of the company should be directed to wind up its business unless, within sixty days, the stockholders should pay the amount of the deficiency. (Laws of 1849, chap. 308, § 13.) For it discloses the existence of the expectation, that any company engaged in the business of insurance would be possessed of the entire amount of its capital, and the intention, when that was not the truth, to terminate its capacity for continuing the transaction of its affairs as soon as that had become impaired to the 'extent of twenty-five per cent. There could be no other useful end accomplished, by requiring any specific amount of capital to be mentioned in the charter. Any different policy would be, in substance and effect, to provide that insurance companies might state in their charters any fabulous amount which the associates might fancy as their capital, and then be allowed to engage in and carry on their business on the acquisition of merely $150,000, and that would be entirely inconsistent with these last provisions, under which every company must be dissolved as soon as the nominal capital has become deficient to the extent of twenty-five per cent, unless the deficiency be supplied within the period of sixty days. What for these purposes has been considered as the capital is the amount alone at which it may have been stated in the charter.

It has been strenuously urged that other provisions have been made by the act which are inconsistent with this conclusion. They will be found in the eleventh section of the act. By them it has been enacted that the charter placed on file should be examined by the Attorney-General, and if found to be in accordance with what has been required by the act, and not inconsistent with the Constitution of the State, he should then certify it to the Comptroller, who should cause an examination to be made, either by himself or by three disinterested persons appointed by him, “ who shall certify on oath that an amount equal at least to the amount specified in the fifth section of this act, if it be a stock company, has been paid in and is possessed by it in money, or in such stocks and bonds and mortgages as are required by the eighth section of this act.” Copies of such certificates have been further required to be filed in the office of the Secretary of State, whose duty it has then been made to furnish the corporation with a certified copy of the charter and these certificates, which, upon being filed in the office of the clerk of the county in which the company has been located, constitute its authority to commence business and issue policies. (Laws of 1849, chap. 308, § 11.) But there is nothing in these provisions authorizing the acceptance, as the business capital, of anything less than the full amount of the nominal capital mentioned in the charter. It was not in terms, nor by implication, declared that the certificate might be made on the basis of $150,000 for a company whose capital was fixed at $500,000. But as no company in the city of New York could be organized on a smaller capital than $150,000, the certificate could in no case bo made where that sum had not been paid in and was possessed by the company. This section and the one particularly mentioned in it must be. construed together. The one provides for what shall be tbe smallest corporate capital allowed, leaving tbe associates to exceed tbat, as they may consider expedient, and tbe other for an examination to ascertain whether tbe capital to be raised has actually been secured; not whether a company with the largest amount of nominal capital has obtained the very smallest amount of actual capital on which the business of insurance -by any company can possibly be transacted, but whether it has the capital in fact which, by its charter, has been stated to be the amount that should be employed, as the statute has stated it, in the transaction of its business. If the provisions made should not be so applied and construed, then there would be no possible object in limiting the capital of an insurance company in its charter by any particular statement of the amount. For any company could begin and carry on its business indefinitely, after it secured the actual capital of $150,000, without adding to it a single cent for the purpose of making up the difference between that and the sum named in the charter as the actual capital. This would be plainly inconsistent with the requirements made by the succeeding section thirteen of the act, which contemplates that the capital shall be maintained at the amount mentioned in the charter, and by no contingency be allowed to fall below seventy-five per cent, of that amount. What capital it was intended the company must have, has been there clearly shown. For what has been referred to as “ the capital of such company ” has also been mentioned as its capital fixed by the charter of the company. The phrases were used as the equivalent of each other, and they were framed in such a manner as to exclude all possibility of mistake on this subject. To conform to them nothing less than the full amount of the nominal capital will do for the actual capital of the company.

If this was not the intent and purpose of the act then it has prescribed no means, after the certificate has been made, for advancing the capital from the smaller amount to that prescribed in the charter of the company. By section four provision has been made for that, before the organization has been completed, by the investigation required under the authority of the Comptroller. But no provision has been made of that, or of any similar nature, after that investigation. And the fact that the associates, before they became a corporation, were empowered to open the books for stock subscriptions, and to keep them open until all the stock bad been taken, indicates that it was designed that this should be fully accomplished before thc-Comptroller could regularly examine into the state of the actual capital of the company. The subsequent section nineteen of this act can be made consistent with no other or different construction of these provisions; for that has provided in plain terms that “the trustees and corporators of any company organized under this act, and those entitled to a participation of the profits, shall be jointly and severally liable until the whole amount of the capital raised by the company shall have been paid in, and a certificate thereof recorded as hereinbefore provided.” (Laws of 1849, chap. 308, § 19, p. 448.) The only certificate provided for upon this subject is the one already considered, which was to be made and filed under the authority of the Comptroller; and this section, in terms, requires it to show that the whole amount of capital raised, that is mentioned or provided for in the charter, has been paid in. If this could be satisfied by the smallest amount upon which any company could be permitted to be organized, it would be absurd to provide for this joint and several liability of the corporators, trustees, and persons entitled to a participation of the profits. If the liability was intended to end when the $150,000 was obtained it never could exist at all. For no company can regularly become a corporation, or transact any corporate business, or enter into any obligations on which the liability could possibly arise, until after the $150,000 has been obtained. Such a construction would limit this joint and several liability by a restriction within which it never could exist. It would make the act provide that the corporators, trustees, and participants in the profits should be jointly and severally liable for something that could not be done at all; for before the certificate has been made and filed no corporation can be brought into existence, and no power to transact business has before that been conferred upon the associates, beyond that of signing and filing their declaration, with a copy of their proposed charter, publishing notice thereof, and opening books and receiving subscriptions to the stock of the proposed corporation; and in all of it there can be nothing to which this joint and several liability can be practically attached; so that with the adoption of such a restraint upon it this legislation would be useless and frivolous.

What was obviously intended by this provision was the creation and continuation of this joint and several liability, until all the capital which, by the terms of the charter was to be raised, was actually obtained. Persons dealing with the associates, and those acting under or succeeding them, were assured of the existence, either of this personal liability or the benefit of the entire fund provided by the charter as the capital, and until the certificate filed showed that this provision of the charter had been complied with. The amount to be both obtained and certified was what the associates, by the charter, declared should be raised as the capital. Both were required to terminate this personal liability of the parties mentioned in the statute. The whole amount of capital was to be paid in, and a certificate thereof— that is, that it had been so paid — was to be obtained as before provided. This is the clear import of the provision, and it renders it apparent that the certificate to be made should show that the full amount of the capital had been obtained, and not merely the smallest sum mentioned in the fifth section, when that was less than the nominal capital of the company. This certificate was designed to be the legal evidence that the company had complied with what the statute had required in order to exempt its corporators, trustees, and stockholders from personal liability; and no such certificate was ever obtained or.filed in the course of the organization of this corporation. It has not been contended that chapter 127 of the Laws of 1864, by which the article of the charter declaring what its capital should be, was so amended as to make it $1,000,000, with power to extend it to $5,000,000, in any way relieved it from the obligation to conform to whatever had been required of it by the act under which its organization was secured; and as that did no more than simply increase the amount of its capital no such position could very well be sustained. For it simply worked such a change in the charter as to make it state the amount of the capital, and the power of increasing it, as that was expressed by the act, instead of what had been originally declared by the associates. In all other respects the company was left to the observance of the obligations prescribed by the general law of the State.

Before this general law was enacted insurance companies were organized by special charters obtained from the Legislature, and an examination of the charters, provided from time to time in that manner, discloses it to have been the legislative policy of the State to require the capital of the company to be actually provided, or else that the individual liability of the persons themselves should be maintained. Parties dealing with such companies were to have one or the other; and as that was necessary for the security of the public there can be no good reason for supposing that any design existed to change it in providing, as the Constitution of 1846 did, that these charters should afterward bo derived under general laws instead of special legislation. The policy of the Constitution was the other way; and to carry it out, it was declared that “ dues from corporations shall be secured by such individual liability of the corporators, and other means, as may be prescribed by law.” (Const., art. 8, § 2.) And so was that of thcv general law afterward passed, unless it must be so construed as really to defeat the existence of this personal liability altogether, by limiting it to a period during which no obligations can be assumed by the company to which it can be attached. That was plainly not the intention of the Legislature; but while it has been inartificially expressed, the intention has still been manifested that this individual liability shall remain until the entire capital of the company has been acquired, and a certificate to that effect has been made and filed; and that should certainly be maintained. It was' the whole amount of the capital raised by the company that was to be paid, and certified as having been paid in, which was to have the effect of terminating the individual liability; and as that was not done in this case the testator, as a corporator and a person entitled to a participation in the profits of the company, remained liable for its debts when the loss accrued under the policy issued to the plaintiff. The capital was not all paid in, and no certificate has been made that it was paid in. The certificate, on the contrary, was that only $150,000 had been paid in, and that, as it was certified, only “ being part of the capital of said company.” As that was the only certificate made, and it was not the one required by the law for the purpose of terminating the personal liability of the corporators, trustees, and stockholders, who could be the only participants in the profits, that still continued in favor of all persons dealing with the company and receiving its policies. The case undoubtedly presents a legal hardship so far as it affects this estate, for the reason that the testator made no default in payment upon his part. But as the liability has been provided by the statute, and cannot on account of its severity be changed, it must be sustained. A discovery of the facts creating it was fully and conveniently within the reach of all persons dealing in or owning the' stock of the company; for it required nothing further than a knowledge of the amount of capital fixed by the charter, and a perusal of the contents of the certificate, both of which were on file in the office of the clerk of the county in which the company itself was located; and as the testator was a corporator and a stockholder these facts must have been known to and understood by him. That he failed to appreciate their legal significance cannot be allowed to relieve his estate from the consequences of his mistake.

The right of action was neither a penalty nor a forfeiture, but a liability created by statute for the debts of the corporation in which he was a member ; and an action may be brought upon it at any time within six years after the accruing of the cause of it. (Code of Procedure, § 91, subd. 2.) And where the party liable has departed this life an additional period of one year has, on that account, been added to the time (Code, § 102) ; where, as was the fact in this case, the cause of action was such as the law had provided should survive. For the effect of the statute creating the liability was to render the testator a contracting party, and as such liable for the performance of the obligation entered into by the company, and within the time so prescribed this action was commenced.

The case was properly disposed of at the trial, and the judgment and order should be affirmed.

Present — Ingalls, P. J., Daniels and Potter, JJ.

Judgment affirmed.