text:
    JOHN H. MORRIS v. U. S. GRANT, Jr., and Others. In the Matter of the Petition of HENRY B. LAIDLAW and Another.

      Sale of securities by a pledgee — notice of defept of title after delivery but before payment— effect of a decision of a committee of the Stock Mxchange upon the members thereof— how far a stranger is bound thereby.

    The firm of Grant & 'Ward pledged with the petitioners, members of the Stock Exchange, fifty-three negotiable railroad bonds of $1,000 each, to secure a loan made to the firm. The bonds were sold on the floor of the exchange, after' notice, and as provided by the rules thereof, at a price which, with the proceeds of other securities then sold, was more than sufficed to extinguish the loan as collateral to which they were then held. Ten of the bonds were delivered at once, and the price paid in cash. The remaining forty-three, although immediately deliverable and payable in cash, were, without any fault on the part of the firm of Grant & Ward, not delivered until the next day. After the delivery of the bonds to the buyer, but 'before he had' paid therefor, he was notified that the bonds did not belong to Grant & Ward, and that they had no-authority to pledge them to secure the loan made by the petitioners:
    Held,. that the buyer could not refuse to complete the purchase, and that the assignee of the firm of Grant & Ward was not liable to the petitioners, who-had taken back the bonds, for any loss arising from a subsequent depreciation in their value.
    The rules of the Stock Exchange provide for the appointment of a committee - on securities to whom shall be referred for adjudication all disputed questions as to the regularity of stock certificates, bonds, etc. (other than those of the-United States government), dealt in at the exchange, and all applications for placing on the list the securities of the several States. After the buyer had refused to pay for the bonds the matter was referred to this committee, who decided that the forty-three bonds might be returned and payment thereof be-refused.

      Held, that this decision in no way affected the rights and liabilities of Grant &: Ward, because:

      First. The committee had no jurisdiction over the question referred to them, its-jurisdiction embracing only questions relating to the genuineness and regularity of the form of securities.

      Second. Grant & Ward, the real parties in interest, had no notice of the hearing-before the committee, and no opportunity to be heard.

      Third. That there was no question as to the legal rights of the parties to be adjudicated.

      Quaere, as to whether the fact that the loan was made upon the floor of the-exchange by one member thereof to another acting in behalf of Giant & Ward, who were not members thereof, subjected Grant & Ward to the rules established by the constitution and by-laws of the exchange.

      Appeal by the receiver from an order of the Special Term in the above entitled matter.
    This was an application for leave to sell certain railroad bonds •deposited by the firm of Grant & Ward with the petitioners, as collateral to a loan. The firm of Grant & Ward had made a general assignment for the benefit of its creditors.

      Wm. H. Horriblower, for Julian T. Davies, receiver, appellant.

      Anson Maltby, for the petitioners, respondents.
   Davis, P. J.:

If it be conceded in this case that the loan of the petitioners, who were members of the Stock Exchange, to Grant & Ward, who were not such members, was, because made on the floor of the exchange through a broker acting as their agent, in all respects subject to the rules of the board of brokers notwithstanding the borrowers were by such rules precluded from personally attending the sale of their collaterals, and bidding or otherwise acting to protect their own interests, there will still remain important questions which we think must control the decision of this case. In such a transaction the party who proposes to enforce his power of sale at the board under its rules puts himself upon his strict legal rights, and must see to it that his proceedings conform to them in every material particular. Without considering the effect of a demand of payment of the loan at or before a quarter-past two o’clock when the rules gave the right of payment at or before half-past two o’clock, or the effect of a notice of sale at the former instead of the latter time, or the effect of a sale of part of the collaterals before half-past two o’clock (to wit, at 2.25), and how far those sales can be held to" affect such of the sales as were in fact made after half-past two o’clock, we think it advisable to go directly to another and more important question.

Among the collaterals held by the petitioners as security for the loan were fifty-three $1,000 bonds of the New York, Chicago and St. Louis Railway Company. The petitioners were bona fide holders of those bonds as collateral security for the loan of $100,000. The bonds were negotiable instruments, and their title as holders in good faith for’ value, to the extent necessary for their protection, was, so far as anything is disclosed in the case, wholly unimpeachable. At the time of the sale there was nothing even to cast a cloud upon their lights. These bonds were all sold by the chairman of the board under the rules for cash at a price which with proceeds of the sales made of -other collaterals, more than extintinguisked the loan of $100,000, with interest and commissions.

Ten of the bonds so sold were delivered at once and the cash for them was paid. The remaining forty-three were immediately ■deliverable and entitled to. be paid for in cash. For some reason, not satisfactorily explained, they were not delivered until the next ■day. That delivery was good under the rules, but it subjected the vendors to such damages as a committee might award. The delay, however, could not affect the rights of the borrowers if they chose to stand upon the cash sale for immediate delivery, unless the subsequent delivery proved ineffective by reason of the seller’s inability to have given good title on the day of sale. The delay in delivering was no fault of the borrowers. They did nothing in this instance to cause the delay, and are not chargeable with any of its consequences. On the day after the sale a delivery of the bonds was made to the buyer. He received them but on the morning of that day the attorneys of the railroad company which issued the bonds, ■served on the petitioners a notice that the railroad company claimed fhe bonds on the ground, in substance, that they had been deposited by said company with Grant & Ward as collateral to a loan made by that firm to the company, and that Grant & Ward had no .authority to use them as a pledge for the loan to them made by petitioners. The fact of such notice having been given came to the knowledge of the buyer at the sale under the rule after the delivery but before payment therefor, and he for that reason -objected or refused to receive and pay for the bonds. The question of his obligation to receive and pay was referred for arbitration to the standing committee of the Board of Exchange- known as the ■“ committee on securities.” That committee is created under .article 4 of the constitution of the New York Stock Exchange, by •a provision which is as follows :

“Fov/rth. A committee on securities, to whom shall be referred for adjudication all disputed questions as to the regularity of stock certificates, bonds, etc. (other than those of the United States government), dealt in at the exchange, and all applications for placing-on the list the securities of the several States.”

After several sessions this committee determined in substance, that the portion of the bonds delivered on the day of the sale was' well, delivered and must be paid for, and that the forty-three bonds delivered on the ne^t day might be returned and payment refused. Acting upon this “ adjudication,” the petitioners received back the forty-three bonds and have ever since retained them, and are now asking for leave to sell them with a view to charge any deficiency that majy arise on the sale to the estate of Grant & Ward, in the hands of the receiver. It is not pretended that Grant & Ward had any knowledge of the action of the committee on securities, or appeared upon or consented to the arbitration, or to the subsequent acts of the petitioners based thereon. Upon this state of facts we are of opinion, for several reasons, that the petitioners, establish no right to the relief prayed for.

. First. Because, under the constitution of the Board of Exchange, and so far as any facts are disclosed to us, the committee on securities had no jurisdiction of the question referred to them. They have jurisdiction of all questions “’as to the regularity of stock certificates, bonds, etc., * * dealt in at the exchange.”' * * * This embraces questions as to the regularity of the form of bonds; regularity of issue, which includes genuineness; regularity as to being within the list of admissions to the board, and questions of that nature; but they have nothing to do with the legality of a tender or delivery of bonds conceded to be regular in all those respects, but refused or objected to on some ground not available against a bona fide holder for value.

Second. Because the supposed arbitration was as to Grant & Ward (the real parties) wholly ex parte. They had no notice-thereof, no opportunity to be heard and were not heard; and their rights, as fixed by the sale and delivery, could not thus be destroyed or affected. It is fundamental law that no man can be deprived of his rights or property without a hearing or an opportunity to be-heard. And if a voluntary association adopt rules obligatory upon its own members, by which their rights may be summarily determined between themselves, such determination has no external force to injure or impair the rights of persons not voluntarily subject to the jurisdiction of the tribunal.

Third. If the dealings of Grant & Ward, in effecting the loan could be construed to subject them to the éstablished rules of the constitution and by-laws of the exchange, in relation to the sale and delivery of their collaterals, yet that could go no farther than to hold them bound by adjudications made by committees clothed with jurisdiction by such constitution or by-laws, and not of one to which no such power is given. There is, it seems, an arbitration committee of the Board of Exchange to whose jurisdiction such questions belong, though the case does not specifically disclose their power.

Fourth. There was no question as to the legal rights of the parties to be adjudicated. The petitioners were bona fide holders for value of the bonds under the pledge. If they proceeded regularly to sell, the buyers took good title on the purchase, and no claimant, on such grounds as were named in the notice served, could prevent the vesting of good title in the buyers. The committee were wrong in their adjudication, and were introducing a principle or rule exceedingly dangerous and prejudicial to both buyers and sellers at the exchange, for if it be the law of the exchange that intermediate a sale and the delivery a notice of claim of this character served on the seller, permits the buyer to escape acceptance, a door of escape from all unfortunate purchases or sales is widely opened. If one party be not bound to take after such notice the other is not bound to deliver, and so the service of a notice, which in law cannot affect the rights of a vendor who holds in good faith for value paid or advanced becomes a convenient loop-hole of escape from unprofitable sales or purchases.

In this case the notice was of no effect. The duty of the petitioners was to disregard it and enforce the sale. The supposed arbitration was wholly ineffective as to the rights of the borrowers, and cannot bind the receiver of their estate.

The order appealed from was erroneous and must be reversed, with ten dollars costs of the appeal and disbursements, and the prayer of the petition be denied, with costs of the proceedings below.

Beady and DaNI-els, JJ., concurred.

Order reversed, with ten dollars costs and disbursements,, and prayer of petition denied, with costs of proceedings below.


source: Caselaw Access Project

author: Brady, J.: Davis, P. J.: Daniels, J.

license: Public Domain

text:
    WILLIAM B. HOLDSWORTH, as Master and Agent for the Owners of the British Bark “BESSIE,” Respondent, v. P. A. DE BELAUNZARAN and RAPHAEL DE FLOREZ, Appellants.
    Payment— when the debtor is released by an agreement, making an alteration in the mode of payment, entered into between the creditin' and the debtor's agent.

    The plaintiff chartered his vessel to the defendants for a voyage to Spain and back. By the charter-party the defendants agreed to pay the sum of £520 sterling, at Cadiz, “ in Spanish gold coin, at the rate of four dollars and eighty cents to the pound sterling, * * * in cash, without credit, discount or commission.” After the arrival of the vessel at Cadiz the agent of the defendants, for the purpose of that charter, received, to the plaintiff’s knowledge, freight, more than sufficient in amount to pay the amount due to the plaintiff. A portion of ths'amount due was paid in cash, the balance the agent agreed, upon the plaintiff’s request, to remit by draft direct to Baring Bros., London, as soon as possible. The agent subsequently told the plaintiff he had seat the draft. The plaintiff never saw the draft, nor did he inquire as to how the agent procured it, or by whom it was drawn. The draft sent by the agent was drawn by himself on the defendants, and payment thereof was refused by them on the ground that the drawer had no funds in their hands. The plaintiff having taken up the draft brought this action, to recover the balance of the payment due ,to him at Cadiz.

      Held, that by directing the defendants’agent at Cadiz to remit the amount due to him to Baring Bros., instead of requiring him to pay it, in cash, from the money he then held, the plaintiff discharged the defendants from all further liability therefor. (Daniels, J., dissenting.)
    Appeal from a judgment in favor of the plaintiff, entered on the report of a referee.
    This action was brought to recover a balance alleged to be due under a charter of the plaintiff’s vessel to the defendants.
    The complaint sets out the charter party of the “Bessie” in full,, and alleges that of the $5,200 to be paid $2,447.60 are still due and unpaid.
    The answer admits the chartering of the vessel as alleged, and the completion of the voyage. It sets forth the acceptance of a certain draft by the plaintiff under circumstances which, it is claimed, operate to release the defendants, and it also pleads payment, and accord and satisfaction. By order of the court a reply was served, which admits many of the allegations of the answer.

      Tbe issues so framed were referred by consent to a referee, who-reported in favor of the plaintiff. The defendants excepted to certain portions of the referee’s report and to his refusals to find as requested.
    Judgment was entered on the referee’s report on the 6th of October, 1882, in favor of the plaintiff, for $3,090.11, from which judgment the defendants, on-the 8th of October, 1883, appealed.
    The facts in the case were substantially as follows:
    On the 12th of Novembei ,1881, while the plaintiff’s vessel was lying in the port of New York, a charter party was entered into between the master and the defendants’ firm for a voyage from here to Spain and back. Under this, as modified, on the 2d of December, 1881, the sum of £620 sterling was to be paid at Cadiz. It was expressly agreed that the payments should be there made “ in Spanish gold coin, at tbe rate of $4.80 to the pound sterling, * * *- in cash,-
    without credit, discount or commission.” Thus, at the agreed rate of exchange, the sum of $2,976 was payable in coin at Cadiz, and it was admitted by the plaintiff that he received, on account of that sum, $528.39, leaving the $2,447.61 alleged by the plaintiff to be due.
    The charter party, besides specifying that payments at Cadiz were to be made in Spanish gold coin, in cash, further provided that the bills of lading were to be signed as presented without prejudice to the charter, and that the vessel was to be consigned to the charters’ agent at Cadiz, free of commission.
    On the 2d of December, 1881, the vessel being ready for sea, the defendants wrote a letter directing the plaintiff to proceed to Gibraltar and thence to Cadiz, and there consign himself to “ our friends, Messrs. Poggio Hermanos,” who had full instructions and would serve the plaintiff with pleasure in any matter concerning his vessel. Poggio Hermanos, or Poggio Brothers, was the name under which one Salvador Poggio traded at Cadiz. He was the defendants’ agent at Cadiz for the purposes of the charter, and not otherwise. On the arrival of the “Bessie-7’ at Cadiz, the plaintiff reported to Poggio and discharged the cargo. The freight, amounting to $3,057.08, or about eighty dollars more than the amount payable to the plaintiff, was collected by Poggio, with the knowledge and by the consent of the plaintiff. A portion of the amount payable to the plaintiff was paid in cash and a part by a banker’s ■draft, as to which no question was made. Poggio also cashed two •drafts drawn by the plaintiff against his homeward freight. The balance now claimed by the plaintiff was included in a draft for £509 18s. 4d. with regard to which the plaintiff’s story was as follows : “ On my arrival at Cadiz, Poggio asked me if I wished to remit; I fold him to remit direct to Baring Brothers; I wanted 16 remit as soon as possible, too; I was on board two days; during that time ho had sent this draft, and when I came ashore he told me he had remitted all right; he told me he would buy it for me and send it on; I-never saw the draft or the money or anything else ; he said he would buy it for me, and I took his word as a man of honor and a gentleman; I don’t remember asking him for the money, in cash; I said I would have it remitted to Baring Brothers right away; he said he had bought a bill and sent it on ; I did not .ask him how he had bought the bill, nor on whom it was drawn, nor what he had done with it; Poggio told me he had remitted the amount to Baring Brothers; I think he told me, when I went to the office, that he remitted the draft or the bill to Baring Brothers; •on my arrival, Poggio asked me if I wished to remit, and I said I 'wished to remit as soon as possible to Baring Brothers; he said'he would remit it right on to them; I had been a week there and the ■cargo was half out, and he told me that he bad remitted that amount •to Baring Brothers by bill or draft, I won’t be certain which now ; I was going to write to Baring Brothers; he said no, he would write at the same time; it would be all right; need not trouble myself about it; I did not know he had remitted his own draft; ■that amount of £509 18s. 4d. I suppose is what he had of the freight collected; I don’t know but I told him to send the freight •on here as soon as possible; he told me what amount he had sent; he told me it was sent by bill or draft; I did not want to question the man; he was a man that I thought was highly respected there, in Cadiz, and a man of money too; I thought his word was as good .as his note any time; he told me he had bought that first draft at a very good rate — forty-seven pence per dollar; the second draft, for .£136 5s., was paid; I bought that myself; I went with Poggio to buy it, and he bought it from somebody else, and I sent it on; I knew by whom it was drawn, and on whom.”

      Q. L. Rives, for the appellants.

      J. A. Shoucby\ for the respondent.
   Brady, J.:

The draft mentioned and now in question was in fact drawn by Poggio on the defendants, in favor of Baring Brothers, at sixty days sight, and which the referee finds Poggio was not authorized to draw on the defendants, Poggio Brothers having at that time no funds with them. It was drawn on the 15th of February, 1882, and was presented for acceptance on or about the first of March following. It was again presented on the 9th of May, 1882, when payment was refused and the bill protested for nonpayment. On the sixth of March the vessel sailed from Cadiz, with a cargo of salt, for. Gloucester, Mass., arriving at that port about the fourteenth of April. On the second of May and after the plaintiff had heard that the defendants refused to pay or accept the draft, he gave a receipt for nineteen hundred and twenty dollars in full for round charter of bark Bessie,” and subsequently the owners of the bark, it would seem, took up the protested draft and produced it upon the trial for surrender and cancellation. The plaintiff made no efforts to collect the amount of the draft from Poggio.

The referee, in a very elaborate opinion, arrives at the conclusion that as the draft was drawn by the defendants’ agent in Cadiz upon the defendants themselves it was not a payment of the freight, which, by the charter, was payable at Cadiz in gold coin, as we have seen. In his opinion he collates and comments upon a number of cases establishing certain legal principles which, if applicable to the facts in this case, would afford abundant reasons for sustaining the judgment founded upon his report. But it is thought that he has failed to give sufficient significance to facts which distinguish the adjudications referred to and make them inapplicable.

It seems to be settled by a series of cases that when by a charter party provision is made for payment in a particular place and in a particular manner, and the debtor provides the requisite funds at the place named, if the creditor does not accept payment in the manner agreed upon he assumes whatever risk is attendant upon his omission to do so. (Abbott on Shipping, 414, 420; McLaughlin on Shipping [2d ed.], 484; 1 Parsons on Shipping and Adm., 305 ; 1 Maude & Bollock’s Merchant Shipping, 387.) In this case it is to be noted that, according to the charter party, payment was to be made at Cadiz by the agent of the defendants, and that the draft which was taken by the plkintiff, in lieu of money, was drawn at. his request that he might make remittances, and of course without the knowledge of the defendants; and it is to be further noted that the plaintiff, relying upon the statement of the agent that the bill was drawn upon Baring Brothers, made no personal inspection of it and thus enabled the defendants’ agent to practice what appears to-have been a fraud. The draft, therefore, was not only for his convenience but at his request, and his mode of procedure was a voluntary departure from the terms of the contract.

In the case of Marsh v. Pedder (4 Camp., 262), to which the learned referee refers in his opinion, a case somewhat kindred to this, the court said: Circumstances may vary the effect of taking a bill of exchange either from the agent or the principal. If the party having the offer of cash merely for his own accommodation prefers a bill of exchange, upon that he must seek his remedy.”' So in the case of Strong v. Hart (6 B. & C., 160), Bailey, J.r said: £‘ If the master of a vessel is to get payment in the best mode that he can and has no power to get anything but a bill he must take that. But if he can get paid in any better mode he should do so, otherwise he will be bound by taking a bill.”

According to the doctrine of these cases it would be incumbent upon the plaintiff to show that he attempted to get the money from ■the defendants’ agent at Cadiz, and failed, and took the draft for that reason, that being the best mode in which he could obtain payment, because cash was refused or he was unable to obtain it, and of course the opposite proposition, namely, that ,he must take the money if he can get it, or assume the consequences, is necessarily eliminated. Darnell v. Morehouse (45 N. Y., 64) is a Case illustrative of the principle. There, after the sale of the cattle, the defendant went with the plaintiff to a banker and paid to the teller the purchase-price. The plaintiff being asked how he would have it replied in two drafts, specifying the amount. The Court of Appeals reversed-the judgment in favor of the plaintiff. Grover, J., said that the judge ought to have submitted to the jury the question whether the defendant did not provide the banker with funds with which to pay for the cattle, and whether the banker did not pay the plaintiff in such funds as he elected to receive, and whether the draft was not received by the plaintiff, because he preferred that to currency, with instructions that if they so found the plaintiff was entitled to recover.

The same doctrine- was declared in Strong v. Hart (supra). Lord TeNTkbdeN told the jury that if they thought the master took the bill voluntarily and for his own convenience, without insisting upon paymeut in cash, they were to find for the defendants.

It must be noted that the argument thus presented in favor of the reversal of the judgment appealed from rests solely and entirely upon the fact that the defendants’ agent, Poggio, had the funds in his hands with which to discharge their liability at Cadiz, and that the plaintiff, if he had chosen to do so, could have received his money in cash, which he omitted to do, taking a draft for his own convenience without the knowledge of the defendants, and without any authority from them to change the mode of payment. And in this lies the distinction between this case and the decisions cited by the referee, and seemingly in antagonism, in which the elements of omitting to obtain the cash provided and taking a remittance for convenience sake do not appear.

The converse of this rule, as illustrated in this case, would enable a dishonest agent, in a foreign port, to appropriate' the funds expressly provided for a payment regulated by express stipulation between the debtor and creditor, arid subject the debí,or to a double payment as the result of a voluntary omission by the creditor to avail himself of such funds and of adopting another mode of payment for his own convenience, if the agent be irresponsible. We-think this is not within the spirit of maritime law and cannot be upheld.

Indeed, by taking the draft of Poggio Brothers the plaintiff made them the depositories of his funds and substituted them as his debtors. It does not at all affect the question that the draft was upon the defendants. They had no funds of the agent in their hands and he had no authority to make the draft. If the plaintiff had exercised ordinary caution he would have discovered the apparent trick practiced upon him, and thus protected himself from loss. He relied upon the statement of the agent as to the character of tbe draft, however, and should not be permitted to take advantage of his own mischance.

The judgment appealed from should, for these reasons, be reversed, and a new trial ordered, with costs to abide the event.

Davis, P. J.:

By the terms of the charter-party the freight unpaid was payable at Cadiz by the consignees of the cargo, Poggio Brothers, in Spanish gold coin, at the rate of four dollars and eighty cents to the pound sterling,” * * in cash, without credit, discount or commission. The freight to an amount 'exceeding the sum due to the plaintiff was collected by Poggio & Brothers, and was known to the plaintiff to be in their hands.

The defendants had thus put into the hands of Poggio Brothers, as their agents, the funds with which to discharge their obligations under the charter. The plaintiff had only to demand and receive them. He did receive a portion of them but the .residue he desired, for his own purposes, to remit to Baring Brothers as soon as possible.” The defendants were under no obligation to do that for him, and Poggio brothers were not their agents to make such a remission. In undertaking to make the remission at plaintiff’s request, they became his agents, and if they had honestly carried out his wishes 'and bought and sent the draft on the Barings’, the obligation of the defendants would have been fully discharged to plaintiff by the application of the amount due him to the purchase of the draft. The act of leaving the money due him in the hands of Poggio Brothers to purchase such draft was solely that of the plaintiff, voluntarily performed without the knowledge or request of defendants ; and that act transferred the title of the money in the hands of the defendants’ agents into the hands of plaintiff’s agents. If a draft had been purchased on Baring Brothers as requested and directed and in fact sent forward as represented, the defendants would have been under no legal obligation to have followed and protected tbe draft if dishonored on due presentation. But the Poggios’, it seems, deliberately defrauded and deceived the plaintiff by representing that they had purchased the draft and made the remission as he directed, when in fact they had themselves drawn an unauthorized draft on the defendants in favor of plaintiff, without his knowledge and without having any funds in the hands of defendants against which they were entitled to draw. By this fraud they kept in their own hands and converted the funds supplied by defendants to pay .plaintiff, and which he had chosen to have remitted for him by draft on Baring Brothers as his more convenient and safe mode of transferring them to his own country. Surely no one can claim that Poggio Brothers were defendants’ agents for the commission of the fraud they perpetrated on the plaintiff. Nor were the defendants under any legal or moral obligation to take upon themselves the consequence of the fraud, which resulted from the plaintiffs own act in changing the mode of paying his freight, and thereby lose the money in Poggio Brothers’ hands, of which by their cunning scheme they had defrauded plaintiff. The cases cited by my brother Beady show that under such circumstances the law will hold the defendants discharged from liability to plaintiff, leaving him to his remedy against the fraudulent parties who have got his money by false promises to obey his orders in respect to its transmission.

I concur with the conclusion of Beady, J.

Daniels, J.

(dissenting):

The judgment recovered was for the balance remaining unpaid upon the freight of so much of a cargo on board the vessel of which the plaintiff was master, as was carried to and delivered at the port of Cadiz, in Spain. It was laden and carried under the terms of a charter-party made and executed between the plaintiff, as master of the ship, and the defendants, for a round trip from the United States to Spain and back again. By the charter-party the defendants became liable to the plaintiff for the payment of the stipulated amount tó be paid for the service of the vessel. A portion of the amount due on so much of the cargo as was unladen at Cadiz was paid to the plaintiff, but the balance of $2,447.60 was not paid to him by the defendant’s agents^at Cadiz, nor by themselves, and'it was for the recovery of that amount that the action was prosecuted against the defendants. While the vessel was at Cadiz, the plaintiff entered into an agreement with Poggio Hermanos, who was one of the defendant’s agents there, for the purposes of the charter, that he should remit the amount in controversy to Baring Brothers, for the benefit of, the plaintiff, and he afterwards assured the latter that he had done so. But instead of remitting the money in the course of business, as that was intended to have been done, the agent drew his own draft for the amount upon the defendants, and sent that draft forward, instead of a draft remitting the money to Baring Brothers. The draft sent forward was neither seen nor received by the plaintiff until after his return to the United States, and was never accepted by him as a payment of the. balance remaining unpaid upon the charter-party. Previous to the time when he left Cadiz he was assured by the agent that a draft had been purchased by him and sent forward under their arrangement, and the agent stated that he had been able to obtain it upon favorable terms as to price. In that manner he evidently led the plaintiff to believe that he-had bought such a draft as was contemplated by the parties and required for the transmisssion of the funds -from Cadiz to Baring Brothers, for the benefit of the plaintiff. The draft actually drawn by the agent was presented to the defendants, both for acceptance and payment. They refused to accept and _ also refused to pay, and it ivas accordingly protested. It was produced upon the trial and was there ready to be surrendered to the defendants.

By this evidence, which was not contradicted, the fact was established to the satisfaction of the refereé, that the plaintiff at no time consented to receive the draft for the balance of his freight, which was drawn by the agent upon the defendants. But what he did consent to accept was such a draft as would remit the funds to which he was entitled for the balance of his freight to Baring Brothers, where he could receive the amount of money on his return to the United States. Such a draft was never at any time obtained or sent forward, and the agreement made was in no mannei’; therefore, performed which was entered into between himself and the defendants’ agent. He never consented to receive the agent’s draft upon the defendants, and had no knowledge that such a draft was drawn and sent'forward until after he returned to the United ■States, and then for the first time discovered that his understanding with the agent had in no manner been observed. He was not bound to, and never did, accept the draft which the agent drew upon his principals, and there was accordingly no payment made of this balance of the freight earned, to the plaintiff, and the oblr gation.of the defendants for its payment was neither released nor satisfied. If the draft agreed upon had been sent forward, the money then would have been at the risk of the plaintiff, and in ease of its loss the defendants would have been exonerated from further liability; but that was not done. Neither was any paper made or sent forward which the plaintiff in any form consented to receive for his freight. The case in this respect materially differed from thát of Darnall v. Moorehouse (45 N. Y., 65), for there the creditor received precisely the paper which it fans intended he should have, and by his own neglect and default rendered it unavailable to himself, and for that reason it was held that he had in the transaction relieved the defendant from liability. But in this case no fact of that description arose, for the plaintiff did not in any form consent to receive the draft or obligation of the agent and at no time accepted it, but-it was drawn and forwarded in plain viola tion of the only understanding entered into between the plaintiff and the defendants’ agent. Neither the case referred to nor that of Smith v. Miller (52 N. Y., 545), in any manner stood in-the way of the plaintiff’s right to maintáin the action. And not anything was said in the case of First National Bank v. Fourth National Bank (24 Hun, 241) which will afford any support or assistance to the defense relied upon in the action. Where the carrier upon the delivery of a cargo voluntarily elects to receive the draft or bill of the consignee for the payment of the freight, there the law requires him to be concluded by his election, and if he fails to obtain payment in that manner the loss will afterwards be his own. But to impose this responsibility on the carrier the paper must appear to have been voluntarily accepted or received by him. This point was quite elaborately considered in Tapley v. Martens (8 Durn. & East, 451), where it was held in substance that the carrier would be precluded from resorting to the shipper by taking a bill of exchange, afterwards turning out to be of no value, when he should do that voluntarily and for his own .accommodation. Everett v. Collins (2 Campbell, 515); Marsh v. Pedder (4 id., 257); Robinson v. Read (9 Barn. & C., 449); The Salem's Cargo (1 Sprague’s Decisions, 389); Grant v. Wood (21N. J. [1 Zabriskie], 292), and Anderson v. Hillies (10 Eng. Law & Eq., 495), sustain this principle as the law applicable to eases of this description. Neither of them, nor any other authority which has been cited or discovered, support the proposition that the master’s action against the shippers for the recovery of his freight can be defeated by the transmission from the consignee, for his benefit, of a bill which the carrier not only did not agree to receive in any event, but had taken care to stipulate for the transmission of his balance by what was contemplated between the parties as a banker’s draft. The paper which was sent forward was an intentional as wéll as a plain violation and departure from the understanding entered into between the plaintiff and the consignee. And as it could not have-the effect, without being accepted by the former, of relieving the defendants from their liability for the payment of the balance of the freight, the referee was right in holding them liable to that extent in the action. (Shepard v De Bernales, 3 East, 565; Grant v. Wood, 1 Zabriskie, 292.)

On the return of the vessel she was laden with salt, under the authority of the defendants, to be delivered at Gloucester, in the State of Massachusetts. Upon her arrival there and the delivery of the salt the plaintiff received from the consignee the sum of $1,920, for which he gave a receipt, declaring it to be in full for the round charter of the bark Bessie. This was the precise amount remaining unpaid for the carriage and delivery of the salt. It included no part or parcel of the balance payable upon the outward cargo, but the settlement with Barker was only for the freight upon the salt, and for that reason the statement in the receipt that the payment was in full for the round charter of the bark in no way relieved the defendants from the liability incurred by them,"through the charter party, for the payment of the balance of the freight earned by the carriage and delivery of the outward bound cargo. The receipt, under a very well settled principle, was subject to explanation, and that which was given, and in no manner contradicted, showed that its sole and only purpose was to settle the freight payable for the carriage and delivery of the salt. The referee was right in holding the defendants liable for the balance still unpaid to the plaintiff, and the judgment should be affirmed.

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


author: Daniels, J.: Davis, P. J. : Brady, J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. MORRIS FREY, v. THE WARDEN OF THE COUNTY JAIL OF NEW YORK COUNTY and the ELEVENTH REGIMENT, N. G., S. N. Y.
    Habeas corpus — what questions may be examined upon the return — questions settled by a court-martial cannot be re-examined.

    Where, upon the return to a writ of habeas cos-pus, it appears that the relator is held for the non-payment of a fine duly imposed by a court-martial, regularly convened and held, the court will not review the evidence taken before the court-martial and decide upon its sufficiency.
    Appeal from an order made at chambers dismissing a writ of habeas corpus. <■

      Isaac L. Sink, for-the relator, appellant.

      Horatio O. King, for the respondents.
   Daniels, J.:

The relator was charged with failure to attend drill parade, which, by the Military Code, is made an offense for which }ie was liable to punishment. (Laws of 1883, ch. 299, p. 451, § 123.) To try the charge of such delinquency the commander of the regiment or battalion was empowered to appoint one officer in his command to hold a delinquency court. (Id. 446, § 104.) And he was empowered to summon the delinquent and try the charge. (Id. § 112.) His sentence was directed to be, without delay, delivered to the officer ordering the court, for his approval or disapproval; notice of which was further directed to be given to the person proceeded against. And from the sentence imposing a fine an appeal has been provided, on the hearing of which further evidence could be taken. (Id. §§ 117, 118.) And if that shall not be taken, then, within twenty days after the expiration of the time for taking it, a warrant is to be issued for the collection of the fine imposed, upon which, in default of payment or property from which it can be collected, the delinquent is to be imprisoned in the county jail for the time mentioned in section 127 of the act.

These directions seem to have all been fully observed, and the relator was regularly tried, convicted and fined. But it is proposed now to re-examine the evidence submitted to the delinquency court on which its judgment was pronounced, and as that is considered •defective to direct the discharge of the relator. The court has •been given no such power by the statute providing for and regulating the proceedings upon the writ of habeas corpus. But where as in this case there has been a legal trial and judgment, it has, on the other hand, directed the prisoner to be remanded to prison. (Code Civil Procedure, §§ 2032, 2033.) If the evidence in these cases can be reviewed and the relator discharged when it may be deemed insufficient, it can, with equal propriety, be reviewed in all other •cases of imprisonment. And that surely will be in conflict with ■the statute. If the evidence was not permitted to have its full weight and effect on the mind of the officer holding the court, the remedy for the correction of his error was the appeal provided by the Military Code, not by means of a writ of habeas corpus.

The order should be affirmed.

Davis, P. J. :

When it appeared on the return to the writ of habeas corpus ■that the petitioner had been summoned, tried and convicted of the alleged delinquency in the manner and form prescribed by law, it was the duty of the court below to remand him, and leave him to re view the proceedings against him by some other process or remedy. The court or judge on such a proceeding as this does not sit as a court of review to retry the case, or to pass upon the sufficiency of the evidence given on the trial.

I concur with my brother Daniels that the order should be affirmed.

Brady, J.:

The relator sought, in this proceeding, to be relieved from the payment of _ a fine imposed by a court-martial for various reasons, but chiefly because when he enlisted he was a minor, and had not obtained his father’s consent. He seems, however,- to have been guilty of deceit in presenting an apparent consent of his father to his enlistment. When the respondents, the Eleventh Regiment, answered, they set up the facts confirming jurisdiction to impose the fine, including the enlistment and the consent already mentioned. The relator, in response, denied that the consent had been obtained, as well as other facts in the return, and thus a traverse was presented. No proof relating to any of the issues was taken save the affidavit of the relator’s father, in which he asserts positively that he did not consent to his son’s enlistment, and further, that on discovering in his house his son’s uniform, he immediately took it to the armory of the regiment mentioned, and left it< there, stating at the same time to the person to whom he delivered it the reason whyi he returned it. Under section 2039 of the Code, the practice imposes upon the judge conducting the proceeding, if it be insisted upon when a material fact is put on issue, the duty of hearing the evidence in a summary way and disposing of the same. Doubtless, here the controversy was submitted on the papers before us, it not appearing that any request was made for a further or other examination of the disputed facts, or any of them. The learned justice below seems to have regarded the asseveration of the father evasive. He said: It is true that he denied that he ever consented, but I do not understand him to allege that his signature to the consent is a forgery.” And he decided, therefore, that the enlistment was legal. It is thought that this was an erroneous view of the effect of the affidavit' of the father. He swore positively that he had not consented to his son’s enlistment, and this necessarily involved a denial of his having signed the consent produced, and he added further, in corroboration of his denial, that on discovering his son’s uniform he immediately returned it to the armory. This act was not denied or questioned, and had a very important bearing on the question at issue. His attention, for aught that appears, was not called to the consent, and it must be presumed, on his statement, that he would have denied having given it. It was not necessary for him to aver his signature, forming a part of it, to be a forgery. The result is that, on the proof submitted, the enlistment was illegal (Military Code, 1883, art. 6, § 40), and there was consequently no power to impose a fine.

The proceeding of the court-martial should be set aside, the order appealed from reversed, and the relator discharged.

Order affirmed.


author: Brady, J.: Daniels, J.:

text:
    ROBERT F. LITTLE, as Receiver, etc., Respondent, v. THERESA LYNCH, Appellant.

      Reference — what is a sufficient delivery of the report to prevent either party from terminating it— Oode of Oivil Procedure, see. 1019.
    Where, within sixty days from the time when a cause has been finally submitted to a referee he prepares and subscribes his report and offers to deliver it to the-successful party upon payment of his fees, such offer is equivalent to an actual delivery, and prevents either party from serving a notice stating that he elects to end the reference, as provided in section 1019 of the Code of Civil Procedure.

      Phipps v. Oarman (23 Hun, 150; affirmed, 84 N. Y., 550) distinguished and not followed.
    Appeal from an order vacating and setting aside a judgment in favor of the defendant, and the report of the referee upon which the same was entered.

      Abram Kling, for the appellant

      W. T. B. MilWeen, for tbe respondent.
   Brady, J.:

This motion appears to have been made and granted upon the-ground that the reference had been terminated before the filing of the report of the referee. It appears that the order of reference-was entered upon the 5th of April, 1881, and that the referee, upon the eighteenth of May following, made his final report in favor of the defendant, dismissing the plaintiff’s complaint, and offered to deliver it to the defendant’s attorney, and said that he could have the same upon the payment of his fees — all of which was done within sixty days from the time of making the same. But the fees were not paid by the attorney. A similar application to this was denied by the Supreme Court of the second department. (Waters v. Shepherd, 14 Hun, 223.) In that case it appeared the referee made-his report within the time limited by the statute, and on the same day gave notice to the attorneys for the plaintiff and the defendant, that the report was ready for delivery. The report was not taken up, however, until after the expiration of sixty days, when the defendant served a notice in writing upon the referee and the--plaintiffs attorney that she elected to end the reference. The plaintiff’s attorney, however, took the report from the referee and entered judgment upon it. The Special Term ordered the judgment to stand as having been regularly entered. The General Term affirmed the order. It was held to be sufficient to comply with the terms of the statute, that the report was made-and the parties notified of its terms, and that it could be obtained on application to the referee. That decision rested upon section 273 of the Code, then in force, which required the referee to make and deliver his report within sixty days from the time the action was finally submitted. The decision was made in May, 1878. In December, 1880, the same department decided a similar question (Phipps v. Carman, 23 Hun, 150), holding, however, that the binding force of Waters v. Shepherd was destroyed by the Code, as altered since the decision therein was made, and the judgment of the court seems to have rested upon the change which was made by section 1019 of the Code of Civil Procedure, to the effect that the report may be delivered to the attorney for one of the parties or filed with the clerk within sixty days; and they declared that the referee would not have done his duty under, the section, unless he delivered his report to the clerk to be filed in ease it was not taken up by one of the attorneys within the sixty days. That case was taken to the Court of Appeals, and decided on the 11th of February, 1881. It was affirmed without any opinion but upon the concurrence of all the judges.

In the January preceding, however, the General Term of this court, in the third department, in the case of Cornelius v. Barton (12 N. Y. Weekly Dig., 216), held that where the referee had made his report and was ready to deliver it in the statutory time but held it for the payment of his fees, there was a sufficient delivery, to prevent the forfeiture of his fees or the termination of the reference under section 1019 of the Code. In that case it appeared that, within a very few days after the cause was submitted, the referee notified the plaintiff’s attorney that the report was in readiness to be delivered, on the receipt of his fees. The court seems to have rested its judgment in that case upon the decision in Geib v. Topping, in the Court of Appeals (83 N. Y., 46).

Subsequently the case of Thornton v. Thornton (66 How. Pr. Rep., 119) was decided at Special Term, namely, in August, 1883, and it was held that where the referee makes his report within the statutory time and notifies'the attorneys that his report is ready and at their disposal, and also of the amount of his fees, it should be deemed a sufficient delivery to prevent the forfeiture of his fees by the termination of the reference, under section 1019 of the Code of Civil Procedure. Justice Haight, in delivering jthe opinion, said he was aware the decision of Phipps v. Carman (supra), was in conflict with the conclusions at which he had arrived and that the case had been affirmed in 84 New York, but stated that he was unable to'concur in the opinion written in General Term, and it seems for the reason that.the General Term of another department had "held the other Way — doubtless referring to the'case of Cornelius v. Barton (supra).

The learned justice also said that the Court of Appeals, it was true, affirmed the decision in Phipps v. Carman, but did not state the grounds upon which the decision was based; that there was a delay of two years in that case in filing the referee’s report, and the case was distinguishable from the one under consideration by him. The Supreme Court, in the second department, seems to have overlooked the provision authorizing the delivery of the report as an act which would prevent the operation of the statute and destroy the right of parties to terminate the reference, by giving the notice provided for, and to have held that the referee, if the report was not actually delivered to one of the parties, must file it in the clerk’s office. It is quite apparent froin the reading of the statute that it is complied with if he does deliver the report as one o.f 'the alternates declared, and if the notification under section 273 of the old Code that the report was made and ready for delivery was a delivery within the terms of that statute, it certainly is within the terms of section 1019 of the present Code. The filing then is not necessary for the first alternate is accomplished. This view was not, it would seem, considered by the Court of Appeals upon the submission of Phipps v. Carman, because no opinion was delivered.

I think, therefore, in accordance with several cases, some of which are cited by Justice Haight.in his opinion in the case of Thornton v. Thornton (supra), that the report was constructively delivered by the referee in this case prior to the expiration of the sixty days and under the statute, and that the requirements of section 1019 of the Code of Civil Procedure were complied with.

The order appealed from should be reversed.

Davis, P. J., concurred.

Daniels, J.:

The order was made upon the ground that the referee had failed to make and deliver his report within the time prescribed for that purpose by the Code, and that notice had been given on the part of the plaintiff terminating the reference. Put it was made to appear that the report of the referee was subscribed and ready to be delivered before the expiration of the sixty days mentioned in section 1019 of the Code of-Civil Procedure, and that it was offered to be delivered to the defendant’s attorney upon the payment of the fees of the referee. Such an offer was considered to be equivalent to an actual delivery of the report under section 273 of the Code of Procedure. That provided, as the present Code in effect does, that the referee should make and deliver the report within sixty days from the time the action should be finally submitted, and in default thereof, and before the report should be delivered, either party could serve notice upon the other that he elected to end the reference. Under that language it was held, in Waters v. Shepherd (14 Hun, 223), to be sufficient to prevent the reference from being avoided or the report annulled; that it should be offered to be delivered within the sixty days, as this report was, to the attorney of one of the parties upon the payment of the fees of the referee. And that was regarded as an accurate construction of this provision of the Code, as it was repeated in this section of the Code of Civil Procedure in Geib v. Topping (83 N. Y., 46), where it was said that “the referee undoubtedly was not bound to part with the report without payment of his legal fees, and where a referee has his report ready within the statutory time and offers to deliver it on payment of his legal fees, such offer-should, we think, be deemed a sufficient delivery to prevent the forfeiture of fees declared by section 1019 of the Code of Civil Procedure.” (Id., 48.)

It has been supposed inasmuch as the legislature, by the enactment of section 1019 of the Code of Civil Procedure, authorized the report of the referee to be filed with the clerk within sixty days-that this additional liberty prevented the other provision from being complied with by such an offer as was made in this case, and was sanctioned by the authorities already mentioned. This was held in Phipps v. Carman(23 Hun, 150), which was affirmed by the Court of Appeals (84 N. Y., 650). But that affirmance, as was stated by Mr. Justice Haight, in Thornton v. Thornton (66 How., 119), may' very well have proceeded upon the great delay appearing to have taken place before the referee’s report was filed. There certainly was no good reason for holding that the language, standing by itself, which would permit a compliance with what it required to be done by an offer of the report upon the payment of the fees of the referee, should be deprived of its effect by the additional liberty given to file it with the clerk. That was not the form in which the section was enacted, but it declared that either might be done to maintain the force and effect of the report. It might, within the sixty days, “ be either filed with the clerk or delivered to the attorney for one of the parties.” The referee accordingly had his election to do one or the other of these acts, and either would comply with what the legislature has required. If he filed it with the clerk that would be sufficient. If he did not do that then a delivery to the attorney for one of the parties would secure the preservation and validity of the report. And no more was required to make this delivery to the attorney for one of the parties than had been when the same provision formed a part of the Code of Civil Procedure. Consequently, what would have been a delivery of the report to an attorney for one of the parties, under the Code of Procedure, would be equally as complete a delivery of it under this section of the Code of Civil Procedure. And so it was considered in Geib v. Topping (supra). The same point arose in Cornelius v. Barton (12 N. Y. Weekly Dig., 216), where this construction of the section was sustained by the court. Certainly, as the enactment is precisely the same concerning the delivery of the report to the attorney in the Code of Civil Procedure as it was in the Code of Procedure, what Would constitute a compliance with the latter should be held to be equally as effectual under the former. Por the additional privilege secured to the referee of filing his report with the clerk in no manner tended to indicate what might be necessary to constitute a delivery to the attorney. Each proceeding was separate and distinct. What was a good' delivery under tbe •same language employed in tbe Code of Procedure must necessarily be equally as good under tbe like phraseology in tbe Code of Civil Procedure.

Tbe order should be reversed, with tbe usual costs and disbursements, and an order entered denying tbe motion.

Davis, P. J., concurred.

Order reversed, with ten dollars costs and disbursements.


author: Davis, P. J.: Daniels, J .: Brady, J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. EDWARD T. WOOD and the said EDWARD T. WOOD, Plaintiff, v. E. HENRY LACOMBE, Defendant.

      Term of office of a public officer — at what how of the day it expires — am, officer holds over until his successor has qualified — construction of acts conferring power of appointment on an officer — 1873, chap. 335 —1882, chap. 410 —1884, chap. 43.
    In 1882, Franklin Edson was elected mayor of the city of New York, under a charter (1873, chap. 335, § 20; as amended by section 7 of chap. 757 of that year), which provided that he should “ hold his office for the term of two years, commencing on the first day of January next after his election.” In November, 1884, William K. Grace was elected mayor of the said city, under a charter (1882, chap. 410, § 31), which enacted that the mayor “ shall be elected at a general State election and hold his office for the term of two years, commencing at noon on the first day of January next after his election. Section 32 of the said last-mentioned act enacts that “ whenever the mayor shall be under suspension, or there shall be a vacancy in the office of mayor * * * the president of the board of aldermen shall act as mayor, and possess all the rights and powers of mayor during such suspension, disability or absence. In case of a vacancy he shall so act-until noon of the first Monday of January succeeding the election at which a successor is chosen.” Between twelve o’clock at night of December 31, 1884, and twelve o’clock at noon of January 1,1885, the president of the board of aldermen, claiming to act as mayor of the city of New York, appointed the relator to the office of corporation counsel:

      Held, that the relator acquired no title to the office by such appointment. That mayor Edson’s term of office did not cease precisely at midnight of December 81, but continued until that hour of the following day, at which his successor would be duly qualified and was accustomed, according to the established usage, to assume the discharge of the duties of his office.
    That any doubt that might exist upon this point was removed-by the specification in tlie act of 1882, of the precise hour at which the newly-elected mayor should take office.
    That this provision of the said act was not unconstitutional, as unlawfully extending the term of office of the outgoing mayor.
    That the declaration contained in section 2143 of the act of 1882, that the act should not '* create a vacancy in any office or employment,” prevented a construction being given to the direction that the term of office of the mayor should begin at noon, which would create a vacancy in that office.
    That even if Mayor Edson’s term of office terminated at midnight, on December 81, there was no vacancy to be filled by the president of the board of aldermen, as by the provision of the city charter and the Revised Statutes, the outgoing mayor would hold over and continue in the discharge of the duties of his office . until his successor should be duly qualified.

      It seems that chapter 43 of 1884, providing that'“all appointments to office in the city of New York, now made by the mayor and confirmed by the board of aider-men, shall hereafter be made by the mayor, without such confirmation,” confers the power of appointment upon the single individual known as the mayor, and that it cannot be exercised by any other person temporarily acting as mayor during a vacancy in that office.
    Case agreed upon on submission of a controversy without action.

      Da/oid Dudley Field, George Bliss, Robert Sewell, George H. Forster and Hugh L. Cole, for the relator.

      Charles F. Southmayd, James Ca/rter and Thomas Allison, for the defendant.
   Davis, P. J.:

The controversy on this submission relates to the office of counsel to the corporation of the city of New York. The defendant was the incumbent of that office holding by an appointment for a term which expired on the 10th day of December, 1884, and was on the first day of January, holding over and discharging the duties of the office pursuant to a statute of the State, till his successor should be lawfully appointed or qualified.

Prior to January 1, 1885, the office was to be filled by the appointment of the mayor, confirmed by the board of aldermen of the city; but by chapter 43 of the Laws of 1884 (passed March 17, 1884; to take effect January 1, 1885), it was enacted that the appointment “ shall hereafter be made by the mayor without such confirmation.” The relator Wood claims title to the office by virtue of an appointment made between twelve o’clock, midnight, of December 31, 1884, and twelve o’clock, noon, of January 1, 1885, by one William P. Kirk, who claimed to have been at that' time president of the board of aldermen, and as such clothed by the charter of the city with power to perform all the functions of mayor, on the ground that a vacancy existed in the office of .mayor during that. period of twelve hours. This claim rests upon the assumption that the term of Franklin Edson then mayor expired at midnight of -December thirty-first, and that the term of his successor, William R. Grace, chosen mayor at the late election, did not commence till noon of the 1st day of January, and that during that interval the office of mayor was vacant. Mayor Edson was elected in November, 1882, under the charter of 1873 (Laws of 1873, chap. 757, § 7), which provided that the term of office of mayor should be for two years from the first day of J anuary next succeeding the election. Mayor Grace was elected in November, 1884, under the provisions of the charter known as the consolidation act (chap. 410 of the Laws of 1882), which -went into effect on the 1st day of April, 1883, and enacted that the mayor “shall be elected at a general State election and hold his office for the term of two years commencing at noon.on the first day of January next after his election.” The defendant asserts his right to the office first, upon the invalidity of the asserted right of Mr. Kirk to assume the powers of mayor and make any appointment; second, that if an appointment to the office could have been made in the interval of time between midnight and twelve o’clock, noon, it could only have been made by one Adolph L. Sanger, who, at the election in November, had been chosen to the office of president of the board of aldermen, under chapter 74 of the Laws of 1884, and had qualified by taking the oath, etc., and claimed that his office commenced with the 1st day of January, 1885, and superseded the office of Kirk, and that he was, therefore, alone clothed with the functions of the office of mayor if any vacancy existed as asserted by the relator; and third, by an appointment subsequently made by Mayor Grace after he entered upon his office with undoubted-authority to make such appointments.

We have given the questions presented by the submission, and the elaborate and very able arguments of the respective counsel, full consideration, and are of opinion that the relator has failed to show any title to the office in, dispute. No authority is shown and in our judgment no sound reason can be given to sustain the assertion that the office of Mayor Edson necessarily terminated at midnight of December 31st. He was elected for a term of two years from the first day of January next after his election. The language of the statute demands no such construction as is claimed, and neither analogy, nor public policy, nor the usages or necessities of the office, or the interests of the people demand it. The office is in all cases a continuous one. The object and policy of the' law are to transfer it and its functions and duties from one chosen servant of the people to another, without any break, hiatus or interlude. The intent always is that the term of one incumbent shall close as another commences, and that at no time shall the trusts of the office be idle or inoperative for want of an agent to exercise them. Hence, where the term of an executive • or administrative office is declared to be for one or more years from a designated day, the language must be construed to mean until the hour of the same day at which the successor becomes duly qualified to assume its powers. It will require clear negative words to prevent that construction, otherwise a lapse or interregnum of the powers of the office may occur to the injury of the people. It is upon this principle that usage steps in to control the question.

The Constitution of the State provides that the governor shall hold his office for three years from the first day of January following his election. Not at midnight of the 31st of December, but at a convenient hour, usually at noon, of the first day of January the incumbent and the governor-elect, where there is a change in person made by the people meet and the latter takes the oath of office and assumes its responsibilites. No one has ever suggested that a vacancy had existed between that hour and the previous midnight, so that for twelve hours or less the State had been without an executive head. And so in reference to the presidency of the United States. The term of that office is fixed by the Constitution at four years. By an act of congress, the term is made four years from the fourth day of March; and at each quadrennial fourth of March the inauguration occurs, in accordance with established usages, with imposing ceremonies, at high noon and not at midnight of the day before. In that case it has never been claimed that the vice-president, or if there be none, the president of the senate is possessed of the presidential office for any period or purpose. Usage has established a similar construction of leases of lands for terms of years from a specified day. By that construction, where a lease is made in this city or in Albany, and perhaps elsewhere, for one year from the first day of May, the tenant has till noon of the next first day of May to surrender possession to his landlord or to a succeeding tenant. As Chief Justice Savage said, in Wilson v. Wood (9 Wend., 346-348), “if they,” that is, the people, “have settled the point that such a lease commences and terminates at twelve at noon on the first of May, in my opinion they have settled it as it should be,” and he quotes Mary Lacy’s Case (4 City Hall [Recorder, 158, 159) as authority that the same custom exists in New York. And in another part of the opinion he adds: “A. strict compliance with the letter of the lease, whether it includes or excludes the day, would compel thos^ who change tenements to remove in the night or remain one night in the street. Such an absurdity was never intended.” Nor was it ever intended that public offices should commence and end at midnight, though that may happen by the silent operation of law where the successor has duly qualified and is ready to enter upon the duties of the office with the ordinary business hours of the day; but where for any reason the successor is not able to enter upon its duties till midday or later, the law is satisfied to make the transfer from the incumbent at such an hour. The reason of this is that in law a day is a single point of time — a “punotus temporis ” — and except where a special statute, or the prevention of injustice requires it the law will not notice fractions of a day. A thing to be done on a given day is well done at any moment of the entire day, unless controlled by some statute or usage which has the force of law prescribing a particular time of the day. In case of the transmission of an office from one public functionary to another on a specified day it may lawfully occur in the first minute of the first hour, or the last minute of the last hour of the twenty-four, and of course at any intermediate time, without a lapse of any of its functions or the failure of an incumbent to discharge them, because the law has only prescribed a “ day,” which is a division of time that embraces all the hours. If this were not so then where an elected officer had failed to qualify prior to midnight of tbe thirty-first of December, and continued that failure for a single hour or less, in that interval some third person might assume the functions on pretext of a vacancy, and consummate “ dark and midnight deeds,” to the astonishment and shame of the people.

Wc have no hesitation in holding therefore, upon general and most salutary principles that offices which terminate as that of the mayoralty formerly did, do not necessarily expire at midnight, but are amenable to the usages and courtesies of civilization, and may lawfully remain in the incumbent until such convenient hour of the day upon which a new term comm enees, and at which, by properly qualifying for the place, the successor may lawfully take.

These views are supported by what Chief Justice NelsoN said (Elmendorf v. The Mayor, 25 Wend., 697),'as to the effect of usage in swearing in a new board of aldermen at noon of the day on which the old board expired.

But if this be not so the change in the consolidation act .of the time when the term of his successor shall commence also operated to fix the hour at which the term of Mayor Edson should terminate. Section 31 of the consolidation act is as follows: “ The mayor shall be the chief executive officer of the corporation; he shall be elected at a general, State election and hold his office for the term of two years, commencing at noon on the first day of January next after his election.” The only difference between this provision and the former act consists in fixing an hour on the first day of January when the term shall commence. The former act simply declared the term to be two years, “ commencing on the first day of January next after his election.” (Laws of 1873, chap. 335, § 20.) The legislature step in to remove all doubt by specifying an hour for the commencement of the term on that day. They take the hour generally established by usage for the ceremony of inauguration to this and other offices. It is usually the hour (if fractions had been considered) at which the office has been assumed in practice. We see no constitutional objection to this change, or in its application to an incumbent during his term. It is argued that it operates to extend the term of an elective office, and therefore is unconstitutional within the rule settled by the Court of Appeals, in the People ex rel. Fowler v. Bull (46 N. Y., 57). In that case the defendant bad been elected to a judicial office for a term of six years. Just as that term was expiring the legislature passed an act extending it for three years more. The court held the act in conflict with the provision of the Constitution, which requires that certain officers shall be elected by the people for terms of office prescribed by the legislature, and that the attempt to add three years by legislative fiat to the term for which the people had elected the defendant was an infraction of their elective rights. It seems absurd to hold that an act fixing an hour of day at which an old term shall end and a new one begin is within that principle. The right of election is not thereby evaded. A mere question of convenience which is, perhaps, in doubt is adjusted in accordance- with good sense to prevent an evil that might arise by an intrusion such as happened in this case. The people elected both of the mayors in this case, and the legislature have simply defined an hour of the day on which the former is to give place to-the latter, without attempting or intending to interfere with the elective right of appointment by the people. By necessary implication the time fixed for the commencement of the new term becomes the time for the expiration of the old one; and this is in accordance with the manifest intention of the legislature, though not cleaidy expressed.

But if it were clear that Mayor Edson’s time expired at twelve o’clock, midnight, of the thirty-first-'of December, there was no vacancy into which the president of the board'of aldermen could be projected by law. The law takes special cai’e that no vacancy shall arise in such a case from the mere expiration of a term. It does this by making adequate provision for that exigency which keeps the incumbent clothed with all the powers of the office till his successor is authorized to take it. For a long period, under the former ■charters of the city, the mayor was appointed to office under provisions which prescribed that he should continue to hold his office till his successor should be named or elected and sworn into office. (See Dongan and Montgomerie Charters.) The mayor continued to be appointed until the act of March 3, 1834, which directed that he be annually elected by the qualified voters of the city. ' There is no room for argument but that at the time of the passage of this act and while the mayor was an appointive officer, he was at all times empowered and required by statute to bold over and continue in discharge of the duties of the office after his term expired, until his successor should be duly qualified. (Chap. 23 of the Laws of 1834; the charter above cited, 1 B. S., p. 117, § 9.)

At the time of these several enactments the mayoralty was unquestionably within their provisions, because dnring all that time the office was filled by appointment. The act of March 1834, above referred to, changed the mode of appointment only to one by the voters directly, instead of indirectly through the agency of officers chosen by them. But that act expressly provided ,as follows:

“ Seo. 5. All the provisions of law respecting the office of mayor of the city of New York, which were in force at the time of altering by law the mode of appointing the said mayor and of rendering the office elective, and which have not been repealed or changed by the amendment made to the constitution in respect to the said office, or by this act, shall apply to the said, office of the mayor of the city of New York so to be elected, in like manner as if such alteration in the mode of appointment to the said office had not been made.

One of the powers and duties ,thus preserved was the requirement that the mayor should continue, after his term expired, to discharge the duties of the office till his successor was duly chosen and qualified. The general provision of the Be vised Statutes, familiarly known as the “ holding over ” act, applies ex proprio vigore, to the office of mayor. No just criticism can be made upon the word “appointed” used in the Be vised Statutes. We think the statute applies to all officers except those expressly enumerated in it, however they may receive their appointment to office. The word, appointment covered at the time the statute was enacted all officers not otherwise provided for, whether commissioned directly by the people or by some other body or officer authorized by the people to make the selection, and that is clearly expressed by the section of the act of 1834 above quoted. But it is not necessary to determine that question since the legislature saw fit to take special care that the mayoralty was kept definitely within it. In such an office no vacancy would accrue either legally or physically by the expiration of a term. In the People v. Van Horne (18 Wend., 518) the court said : “An office cannot be said to be vacant while any person is authorized to act in it and does so act.” And this language was quoted approvingly by Walworth, Chancellor, in Tappan v. Gray (9 Paige, 507). And the distinction between a vacancy in office and the expiration of the term of office was recognized by Folgbb, J., in the People v. Gardner (45 N. Y., 816). But it seems unnecessary to argue that there can be no vacancy in an office which requires tbe asssumption of its ditties by another while a person is actually continuing in it, and by law authorized to do all its duties. But section 2143 of the Consolidation Act (chap. 410 of 1882; (which by fixing noon as the hour at which the term of office of the mayonshall commence, gives the only possible ground on which to claim that a vacancy arose in the office (expressly provided that the act shall not “create a vacancy in any office.” If any vacancy would or could be created by the designation of the hour at which the new mayor takes his office, this section (2143) interferes to prevent such a result. The legislature, perhaps, intended by this provision to guard against the happening of just such unnecessary complications as have arisen in this case.

The president of the board of aldermen, who derives his power to act as mayor from, section 32 of the same act, cannot be heard to deny that he is prevented from asserting that a vacancy in the office of mayor is caused by any provision of the acts. A careful -reading of section 32, we think, shows that the vacancy in the office of mayor which the president of the board of aldermen can fill, is one that occurs during an unexpired term by death, resignation or one of the other causes which produce a vacancy according to the statute defining vacancies. That section provides a limit (as we understand it) to his acting, by the election of his own successor to take office the second Monday of January following, and also for the termination of his powers by the election of a mayor to fill the unexpired term. We think the true construction of the section did not authorize Mr. Kirk to take possession of the mayor’s office, even if there was a vacancy of a few hours by reason of an interregnum in the office, as claimed by the relator, for the purpose ,of making appointments to office. These views relieve us of the necessity of inquiring whether the newly elected president- of the board of aldermen, Mr. Sanger, took office on the first of January, and was entitled to act as mayor if any one, in making the appointments to office. His right falls to the ground for the same reasons that overturn that of Mr. Kirk.

These conclusions, we think, not only accord with the law of the case, but enable the will of the people as expressed in the Act, and in choosing the new mayor, to be in part at least carried into practical effect. The design was to give the new mayor new and enlarged powers, and to hold him to greater responsibilities in the appointment of such officers for the city. This intent was forcibly and fully expressed by Governor Cleveland in the message which accompanied his approval of the act of 1884, taking away the power of confirmation from the board of aldermen, and it ought not to be thwarted by any strained construction of the law.

The only lawful appointment to the office of corporation counsel that has been made since the last day of December is that,made by .Mayor Grace on the fourteenth of January, instant. Up to that date the defendant lawfully held the office by reason of the statute authorizing him to perform its duties after the expiration of his term. He is,-therefore, entitled to judgment confirming him in the office.

Brady and Daniels, <TJ., concurred.

Daniels, J .:

It may be added, to what has been said in the opinion of the presiding justice, that under the language of the act of 1884, the president of the board of aldermen had no lawful authority to make an appointment to the office of corporation counsel, even if there were a vacancy in the office of mayor, between the expiration of the last day of December and noon of the 1st day of January, 1885. For, by the act of 1884, this power was vested exclusively in the mayor himself, and it was not intended that it should be exercised by the president of the board of ridermen in any event. The act (chap. 43 of 1884) is brief, and in these words:

“ SeotioN 1. All appointments to office in the city of New York, now made by the mayor and confirmed by the board of aldermen, shall hereafter be made by the mayor without such confirmation.
‘‘Sec. 2. This act shall take effect January first, eighteen hundred and eighty-five.”

It is clear and definite, as much so as it could well have been made; and reposes the power of appointment created by it in the single individual known as the mayor, and, by necessary implication, excludes tbe power from being exercised by another and different officer.

The time intervening between the enactment of the law, and that when it was to take effect, is a circumstance also supporting this construction. It was enacted on the 17th of March, 1884, while it did not go into effect until the 1st day of J anuary, 1885. This delay must have been designed and intentional. And it could have been permitted for but one object. That was, as the .change in the mode of appointment to office was an important one, that the mayor, who should exercise it, should be specially selected by the electors, with the object in view, that he would possess this enlarged and unqualified authority. No other good reason can be assigned for deferring the time as that was done for upwards of nine months for the law to go into effect. During the period intervening, an election of mayor was to take place under the then existing laws. And this delay was provided for that election to take place, and for the office of the existing mayor to end, before it should be lawful for the mayor to exercise this unqualified power of appointment. Then, for the first time, it could be exercised by a mayor chosen by the electors in part- for that object, End in whom they would be willing the authority should be reposed.-

This construction. is also sustained by the history of the act itself. It was known and understood, both by the legislature and Ahe public, that the act was not intended to take effect until a mayor mould be elected with direct reference to the change maje by it in the power of appointment, and that he should be the official first having authority to act under it. And, as the fact was one which was generally known, the court is warranted in referring to and acting upon it in the disposition of this case. It confirms the conclu•sion arising upon the act itself, that the newly-elected mayor was the person intended to be vested with this authority, and that it could, in no event, be exercised, as it was attempted to be, by the president of the board of aldermen.

He was not, in any sense, the mayor of the city, and, therefore, not the officer mentioned in this act of 1884. But the person referred to was the mayor entering upon the discharge of his duties, pursuant to his election, on the 1st of January, 1885. To hold •that the president of the board of aldermen could make the aj)pointment would defeat, in part, the policy and purpose of the law, for it would permit an official not elected in view of, or to carry out, its authority to usurp its powers. When he was elected this law did not exist, and it was no part of the object of its enactment to invest him with the enlarged authority which it created. He was not the mayor even though empowered to fill a vacancy existing in that office. That is rendered very clear by section 32 of the Consolidation Act under which he seems to have acted in this instance. That section did not, in any event, constitute him the mayor of the city. It at most only empowered him to act as mayor, and described him as acting mayor merely. Its language is that he “ shall' act as mayor,” and declared the time “ lie shall so act,” and that certain powers shall not be exercised by him when acting as mayor.” What he was designed to be, and all that he-could be, if a vacancy existed, was to act as mayor, and not, as a matter of either fact or law, to be the mayor of the city. That office was reserved and designed for the person elected by the electors to fill it, and it was to that officer, who strictly and accurately speaking should be the mayor, that this power of appointment was intended to be given by the act of 1884. It was not the acting mayor, which was all that, in any event, the president of the board of aldermen could be, who was empowered to make appointments under the authority of this law, but the mayor himself, legally elected and entering upon the discharge of the duties of that office.

Under the consolidation act, the acting mayor did; under certain defined circumstances, possess a qualified power of appointment. But it was not the power created in the act of 1884. Tt was, at most, the power to appoint subject to the approval of the board of' aldermen of his appointments. He could do no more, and that was superseded by the act of 1884, as to appointments from and after the 1st of January, 1885. That was in no form vested in-' him, but in the mayor entering that day upon the term of his office. By him the defendant has been appointed to the office of corporation counsel. That appointment was lawful, and judgment on the-case agreed upon will be directed to that effect.

Brady, J.:

The act of the legislature, conferring upon the mayor the sole power of appointment, was passed- on the 17th of March, j.884^ Tbis was several months before the next election for mayor, which would take place in November following, and it was to take effect •on the 1st of January, 1885, on which day a newly-elected mayor would begin his term of office. From the provisions of this act thus stated, and the circumstances mentioned, the intention of the legislature seems plainly to have been to vest such authority in the mayor to be elected whoever he might be, unless he failed to qualify, or qualifying, resigned, or some act occurred contémplated by the statute, by which his office became vacant, and the president of the board of aldermen gifted with the power in consequence. This act made a change in the mode of selecting certain officers of the city government, and, as it was to take effect, as we have seen, on the 1st day of January, 1885, was to be cotemporaneous with the beginning of the term of the mayor elected after its passage.

The intention of the legislature, to which I have adverted, is upon well settled rules a guiding and controlling principle in the interpretation and effect of a statute, and influences my judgment here .as to the rights involved in this controversy. It is supreme when ascertained. In addition to this and germane to the subject it may be said that the newly-elected mayor of this city has for years assumed the duties of his office by appearance there at twelve -o’clock, noon, on the first of January, his predecessor welcoming him and surrendering, in form at least, the office and all its responsibilities and duties. This has been the case even where the persons thus interchanging official civilities have been of different political parties ; and it is perfectly proper to say that the legislature had this usage in mind when the act of 1882 was passed, designating that hour as the time when the mayor-elect should assume his duties. Indeed if the act had been silent upon the subject that is just what would have occurred, had the usage been observed. The legislature, therefore, in naming the hour recognized and confirmed the usage.

For these reasons, in addition to those expressed by Justices Davis and Daniels, I think the defendant is entitled to judgment.

Judgment ordered for the defendant.