author: BoaRdmaN, J.:

text:
    JUDIAH ELLSWORTH, Appellant, v. THOMAS W. LOCKWOOD, Executor, etc., and others, Respondents.

      Statutory foreclosu/re — duty of mortgagee to sell in pa/reels — where land is divided subsequent to execution of mortgage.

    This was an action to set aside a sale had under a statutory foreclosure of a mortgage. At the time the mortgage was given the tract covered thereby was entire and undivided. At the time of the sale two parts of it were occupied by persons claiming title thereto by contracts, made subsequent to the mortgage. The plaintiff, who was at the time of the sale the owner in fee of the land, and liable to pay the mortgage, requested the mortgagee to first sell fifty acres off the south end of the tract, the said fifty acres not corresponding to any prior known division of the tract, and there being no description thereof made or suggested at the time, by which a conveyance thereof could be made. Held, that this case did not fall within section 6 of 2 Revised Statutes, 546, requiring that where the mortgaged premises consist of distinpt farms, tracts or lots, they shall be sold separately, and that the mortgagee was justified in refusing to sell as requested.

      Ellsworth v. Loelmood (42 IT. Y., 89) distinguished.

      Semble, that a mortgagee is not bound to sell in parcels, without request, where the division into parcels was made after the execution of the mortgage.
    Appeal from a judgment entered on the report of' a referee in favor of defendants, dismissing plaintiff’s complaint.
    This action was brought to set aside a statutory mortgage foreclosure and redeem the mortgaged premises, and also to set aside a contract for the sale of the same premises.
    It was commenced in 1858, and has been tried three times. The first time before Hon. A. Bocees, referee, on which trial the plaintiff was nonsuited. The judgment on his report was affirmed at General Term and reversed by a divided court in the Court of Appeals. A report of the case will be found in 3 Hand (42 N. Y.), at page 89. The second trial was before A. J. Oheritree, Esq., referee, and plaintiff was again nonsuited, and the judgment rendered on his report was reversed by the General Term. The last trial was before Wm. T. Odell, Esq., referee, when for the first time the defendants, on their part, put in evidence, and the action was again decided in favor of the defendants and the complaint dismissed. Plaintiff now appeal? from the judgment rendered on the report of the last referee.

      It appeared from the referee’s report that on the 8th of November, 1849, the defendant, Hanford N. Lockwood, in pursuance of negotiation had with the plaintiff, conveyed the premises in question to Owen Brady, and took back a mortgage thereon for $1,000, and a note made by the plaintiff payable to the order of and indorsed by one Mott, for $500, payable ninety days after date. On the fifteenth of November Brady and wife executed and delivered to Mott a warranty deed of the premises, which was duly recorded on the 7th of January, 1850. Mott at the same time gave back a writing stating that the deed was given to secure the .note, and that upon payment of the latter the title should be transferred to Brady. This paper was recorded February 16, 1858. Subsequently Mott was compelled to pay the note, with the costs of a suit thereon. In March, 1851, Mott agreed to convey a portion of the premises to the defendants Ketchum and Joslyn, who made the contract and entered into possession in good faith, and in the full belief that Mott was the owner of the land, and without any knowledge that either the plaintiff or Brady had any interest therein. .On the 26th of July, 1851, and while Ketchum and Joslyn were in the actual possession of the said premises, Brady and wife conveyed their interests' in the land to the plaintiff, the deed being recorded February 16, 1855, and the latter assumed the payment of the mortgage given thereon to the defendant Lockwood. This mortgage, being unpaid, was foreclosed under the statute, and the premises sold. At the time of the sale the plaintiff tendered to Lockwood, the amount of his mortgage, and the costs of foreclosing the same, and demanded an assignment thereof, which was refused.
    Mr. Ellsworth then requested him to put up the premises in parcels, and required that no more should be sold than would satisfy the mortgage debt and costs, and offered to give him the amount of the mortgage debt and costs of foreclosure for the south part next the river, comprising fifty acres. But no designation was made of what should be the northern boundary of the fifty acres; whether it should be bounded by a crooked and sinuous line, parallel with the river, or a line at right angles with the side lines of the farm, was left ambiguous and uncertain. Nor had any survey been made or monuments put up to specify, or in any way designate any specific fifty acres. MacGregor offered for Mr. Ells-worth to bid for the south fifty acres aforesaid, and give the amount of the mortgage debt and costs of foreclosure. Lockwood refused to put up the premises in parcels as requested.
    The referee further found that the premises could not properly have been sold in parcels, as designated or required by Mr. Ells-worth, and that fifty acres off the south end was not so situated as to be conveniently capable of being sold, described or conveyed as a distinct tract or piece.

      Judiah Ellsworth, for the appellant.

      8. Brown, for the respondent.
   BoaRdmaN, J.:

When this case was in the Court of Appeals (42 N. Y., 89), two questions only were presented and disposed of, one touching the right of plaintiff to an assignment of the mortgage upon payment of amount due, and the other touching the right of defendant Lockwood, to sell the whole property in one parcel, when plaintiff demanded that fifty acres off the south side should first be sold, he agreeing to bid the amount due therefor. A majority of the court held that plaintiff was not entitled to an assignment of the mortgage as demanded. Three of the eight judges concurred in a reversal by reason of the sale in one parcel. Two judges were for a reversal, but no ground is stated in the report.- It may have been upon the question of assignment. It is questionable, therefore, how far such former decision is an authority. (James v. Patten, 6 N. Y., 16.) The same questions are now again presented. I do not see that any other considerations are of importance, or would control our decision.

The appellant excepts to many findings and refusals to find upon the facts, but no findings which the referee might have made in the respects excepted to could affect our decision.

There is no substantial controversy in the evidence upon the important points.

The former decision of the Court of Appeals, controls us as to plaintiff’s right to an assignment of the mortgage as a condition of his payment of the amount due. He had no such right.

If we should, assume that the right to sell in one parcel was decided adversely to defendant by that court, upon the facts as then before the court, we shall find the case upon that point now very different. Upon the former trial no evidence was given by the defendants. Now, it appears that the traet mortgaged was entire and undivided at the time the mortgage was given; that Joslyn was in possession of the north fifty acres claiming to own them under contract; that Ketcham was in possession of the remainder and southern portion of the premises sold under the mortgage; that such purchases were made after the execution of the mortgage, and that no other division into lots or farms had been made before the sale. Now, under these circumstances, the plaintiff demands that fifty acres off the south end of the track be first sold. This fifty acres does not comprise the lot or farm claimed and occupied by Ketcham, but only a part of it, indeed less than half of it I believe. The fifty acres had no fixed, known or definite boundaries. No description of it was made or suggested at the time, nor is it easy to see how any accurate description to constitute the basis of a conveyance and possession under it, could have been made without the aid of an actual survey. The south side of the land was bounded on the river, and it was not an easy task to determine where the line of fifty acres would come. It would depend also upon the variable points of compass upon which such north line might run, in the discretion, of those controlling its direction. It was not, therefore, a distinct tract or parcel, that could have been conveniently sold, described and conveyed, and hence the request of plaintiff did not make a case within 2 Revised Statutes (546, § 6). Defendant Lockwood was therefore, justified in his refusal to sell as requested. It is an entirely different state of facts from that presumed to exist by Mr. Justice Suthee-LAND in 42 New York (Ellsworth v. Lockwood), when there was nothing to show that the designated fifty acres were not so situated as to be conveniently capable of being sold, described and conveyed as a distinct parcel or tract ” (page 101). Upon that assumed fact, tegether with the request or demand of plaintiff to sell such fifty acres, does the learned justice rely to sustain his conclusion. If either fact be wanting'the conclusion fails. Because, I assume it will never be held, that a mortgagee is bound to sell in parcels without request, where the division was made into parcels after the execution of the mortgage. To hold that a sale of the property in one parcel as • described in the mortgage, under such circumstances is void, would be in the highest degree dangerous. The mortgagee is often" in no situation, to know of subsequent divisions of the mortgaged property. A sale, therefore, without knowledge of such divisions or without request to sell in known and recognized parcels, should not be avoided. However the law may be finally held on the facts as assumed by Mr. Justice Suth-eblaND, upon those now found the sale should be held good. (Lamerson v. Marvin, 8 Barb., 9; Griswold v. Fowler, 24 id., 135; Cox v. Wheeler, 7 Paige, 250.)

But there is another sufficient reason why this judgment should be affirmed. The plaintiff at the time of the foreclosure and sale was the legal owner of the fee in the mortgaged lands, subjeot to this mortgage which he was bound to pay. (I disregard for the present the claims of Joslyn and Ketcham.) Plaintiff was, therefore, the primary debtor for the amount due to Lockwood on the mortgage. He was there on the sale in person or by his agent with the necessary money to pay the debt and discharge the mortgage. He refused to do so except upon a condition which he had no right to demand. It was plaintiff’s own folly therefore, that a sale took place. His object, very likely, was to cut off the claims of Ketcham and Joslyn. If their claims were valid as against the plaintiff, he ought not in equity and by indirect means to impeach their title. If their claims were invalid, plaintiff could have dispossessed them as well after, as before the satisfaction of the mortgage. By the findings of the referee on the present trial they were honafide purchasers from Mott, who had an apparently perfect title of record, subject only to Lockwood’s mortgage. Under such purchase valuable improvements were put upon the lands by Ketcham and Joslyn, with the knowledge of the plaintiff, and without any claim or pretense, upon his part, of any hostile interest or title. It would, therefore, be inequitable and unjust toward Ketcham and Joslyn, to allow such sale to- be set aside in the interest of the plaintiff, who voluntarily permitted it to take place and permitted the purchasers to expend large sums of money upon the lands bought by them, without notice or warning of any kind. On tbe facts found, plaintiff was in the wrong in not paying up the mortgage before the sale, he having the money there to have done so. Defendants Ketcham and Joslyn, prior to such mortgage sale, bought in good faith, of a person having an apparent title, entered into possession and improved the property. The plaintiff knows all this and says nothing. Ketcham and Jos-lyn buy in the property on the mortgage sale, in order to perfect their title. How have Ketcham and Joslyn been guilty of any wrong? Why should their equitable, if not legal rights, be imperiled in favor of one who has refused to do his legal duty, that he might take an undue advantage of them ? I concur therefore, with the referee, that the sale was regular, fair and valid, that defendants Ketcham and Joslyn took a good title under such sale, and that plaintiff established no cause of action against the defendants or either of them.

The judgment is therefore affirmed, with costs.

Leaiíned, P., J., concurred. BooKes, J., took no part.

Judgment affirmed, with costs.


source: Caselaw Access Project

author: BoaedmaN, J.:

license: Public Domain

text:
    ROSWELL T. SMITH, JOSEPH K. PRIEST, WILLIAM EARL, Jr., and JOHN G. BLUNT, Appellants, v. JOHN B. NEWLAND, Respondent.

      Conditional sale —forfeiture — demcmd.

    This was an action of replevin to recover a machine for clipping horses, sold tc the defendant upon the condition that he should pay monthly a royalty of one dollar for each horse clipped with it, under penalty of forfeiting the machine. July first a demand for the royalties then due and for the machine was made. Subsequently plaintiff took defendant’s check, post-dated several days, for the amount due, which was never paid.
    This action was commenced without any return of the check and without any further demand. Held, that the complaint was properly dismissed; that after the taking of the check a new demand was necessary.
    Appeal from a judgment in favor of the defendant, entered on the report of a referee. The action was replevin for a machine for clipping horses. Defense, a general denial of plaintiffs’ rights. Defendant bought and paid for the machine, and at same time contracted to pay to plaintiffs monthly a royalty of one dollar for each horse clipped with the machine, under a penalty of a forfeiture of the machine if such payments were not made. In July, 1873, a demand was made for the royalties due and also for the machine. It was then so arranged, after such demand, that plaintiffs should accept defendant’s check, post-dated several days, for the amount then due, on a Troy bank. The check was not paid by the bank, and this action of replevin was brought for the machine, without any return of the dishonored check or demand of the machine. On November 7,1873, defendant sent plaintiffs a postal order for twenty-two dollars and eighty cents, which covered the amount of the check and interest, but plaintiffs refused to receive it and sent it back. This action was commenced November 24,1873. The referee found that, upon the facts, the action cannot be maintained, and that defendent was entitled to judgment. The plaintiffs appeal from the judgment entered thereon.

      Jno. F. Porter, for the appellants.

      J. O. Oreen, for the respondent.
   BoaedmaN, J.:

The referee does not find any facts which could sustain a judgment in favor of the plaintiffs. Nor was he requested to find any facts which he has declined to find. The legal conclusion of the referee, from the facts as found by him, is therefore correct, and the exception thereto cannot be sustained, unless this court shall assume to find such additional facts from the evidence as will make the exception available. This is not, in my judgment, good practice. “ The party appealing must make his case and have it settled with such a statement of the facts, as. will show necessarily that the law is in his favor.” (Grant v. Morse, 22 N. Y., 323.)

But disregarding such technical objection, I think the judgment is correct. Forfeitures are not favored in law. Plaintiff’s claim of title arises by way of forfeiture, after payment of full value of the machine. Such forfeiture arises from non-payment of royalties. Before a right of action can accrue to plaintiffs, a demand must be made for the machine after the royalties come due. This the referee finds was done. Afterward the plaintiffs accept of defendant’s post-dated check for the amount due. By such acceptance the cause of action arising from the previous demand of the machine was extinguished, and the defendant lawfully retained the possession. The check did not pay the debt, but it amounted to a waiver of the forfeiture for previous non-payment thereof. It extended the time within which a payment would prevent a forfeiture. If at the expiration of that time the debt or the check was not paid, the plaintiffs were at liberty to treat it as a new forfeiture, and after a new demand and refusal, bring their action for the recovery of the machine. No such demand was made, and hence the action was improperly brought. The defendant continued entitled to the possession of the machine after the cheek was given, until a new demand was made. Before the maturity of the check plaintiffs could not have brought their action, because the time for the payment of the royalties had been extended by their acceptance thereof. After its maturity and non-payment, the right of action depended upon the new failure to pay, followed by a new demand. Hence I conclude the action could not be sustained, no proper demand having been made.

I am not clear that the proffer to pay twenty-two dollars and eighty cents, before action brought, should not bar the action. I do not think that time of payment was of the essence of the contract. A liberal construction should be given to avoid a forfeiture. The form of the tender was not objected to. The forfeiture was insisted upon. But it is not necessary to put our decision on this ground.

For the first reason stated the judgment should be affirmed, with costs.

LeaRNed, P. J., and Bookes, J., concurred.

Judgment affirmed, with costs.


author: BoaedMan, J.:

text:
    HORACE SCHUTT, Appellant, v. FRANCIS D. BAKER, Respondent.

      Breach ofwa/rraniy — measure of damages.

    The defendant sold a quantity of hop roots to the plaintiff, and at the time of the sale, with knowledge that plaintiff purchased the same for cultivation, he warranted them to be female or productive roots, when in fact a large number of them were male or unproductive roots. The plaintiff’s crop having proved a failure, he brought this action to recover damages for a breach of the warranty. Held, that he was entitled to recover all the damages sustained by him, including the difference between the value of the crop actually raised, and that of the crop that would have been raised had all the roots been female or productive ones.
    Appeal by plaintiff from a judgment in his favor, entered on the report of a referee, for six dollars damages, it being claimed by the plaintiff that the damages should have been much greater.

      G. H. Graham, for the appellant.

      F. Baldwin, for the respondent.
   BoaedMan, J.:

The complaint alleges a sale by defendant to plaintiff, of a large quantity of hop roots, with warranty that they were first-class roots, not male roots; were all good runners or female hop roots; that he, defendant, dug them himself and knew them to be such as he had stated. It further alleges that they were set out, but a large amount thereof, on cultivation, proved to be male roots and unproductive, to plaintiff’s damage $500. The answer puts in issue the warranty. Upon the evidence, given the referee finds, among other things, “ That to induce the plaintiff to purchase said hop roots, the defendant then and there undertook and agreed that there were no he hop roots among them, and that there were a large amount of he hop roots among them.” The evidence sustains the findings. On the trial the plaintiff offered to show the value of the crop that would have been raised by productive vines in place of the male vines sold him by defendant, for the. purpose of enhancing the damages; also, that at the time of the purchase he, plaintiff, told defendant he wanted to buy good runners — female roots — as he intended to plant them- himself and wanted only such as would produce hops. The referee rejected such evidence, upon the ground that the warranty was general, and the rule of damages was the difference in value of the roots as sold and the roots as they were represented to be, which he afterward found to be six dollars only.

I think it was competent to show that defendant knew plaintiff bought the roots for cultivation. It tends to show the understanding of the parties, and to fix the measure of responsibility incurred by the defendant under his warranty. It was error, therefore, to reject such evidence. Such error, however would not lead to a new trial, if the referee was correct in the rule of damages. To test that question we ar'e at liberty to assume the facts offered to be proved by the plaintiff and rejected by the referee. We have then a purchase of these roots for the purpose of cultivation, the knowledge of the defendant of that fact, his warranty with such knowledge, that the roots sold were female or productive, that there was a large amount of male or unproductive roots among those sold, and that the cultivation of such unproductive roots involved the plaintiff in a large loss of profits and entitled him to damages not allowed him by the referee.

This is, in effect, a warranty that the roots would be productive, and were suitable for the purpose for which they were purchased. They were valueless except for the purpose of cultivation and production. They were bought for such purposes, within the knowledge of defendant. The uses to which they were to be put, and the consequences of a failure in such use were within the contemplation of the contracting parties. Under such circumstances, the plaintiff “is entitled to recover all his damages, including gains prevented as well as losses sustained.” (Griffin v. Colver, 16 N. Y., 489.) The case is controlled by the decision of the Court of Appeals in Passinger v. Thorburn (34 N. Y., 634), and Milburne v. Beloni (39 id., 53); White v. Miller (7 Hun, 427); Booth v. Spuyten Duyvil Rolling Mill Co. (60 N. Y., 487, 492). A recovery was sustained in Randall v. Raper (96 Eng. Com. Law R., 82) on much weaker evidence than that before us. That was a sale of seed barley, warranted to be Chevalier seed barley. The purchaser resold it with like warranty. It turned out to be an inferior and different kind of seed and produced inferior crops. It was held that the inferior crop raised was an element in the damages which the plaintiff was entitled to recover for the breach of the warranty.

I think the learned referee erred in the rule of damages applicable, and that a new trial should be granted, with costs to abide the event.

Lbaened, P. J., and Bocees, J., concurred.

Judgment reversed, and new trial granted, costs to abide event. Reference discharged.


author: BoARDMAN, J.:

text:
    GEORGE VOLANS, Respondent, v. WILLIAM OWEN and JESSE B. JILLSON, Appellants.

      Givil damage act.

    Where liquors are sold by liquor dealers to a minor whereby he becomes intoxicated, and he thereafter becomes sick in consequence thereof, whereby the father of the minor is deprived of the services formerly rendered by him, and is compelled to expend money for medical attendance upon him, the father is entitled to maintain an action under the civil damage act to recover the damages occasioned thereby.
    Appeal from a judgment in favor of tlie 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 under chapter 646 of 1873, for damages sustained by the plaintiff in consequence of the intoxication of his minor son. The plaintiff is a farmer residing in St. Lawrence county. George B. Yolans, his only son, born in 1854, lived with his father and assisted him in carrying on the farm.
    On the 19th of September, 1874, the son went to Ogdensburgh, and went from one bar to another drinking intoxicating liquors, and drank twice at defendants’ bar. He became so drunk that he could not stand, had two falls, the second time striking the back of his head. Subsequently he was taken home by a friend. It was claimed on the part of the plaintiff, that in consequence of this intoxication and fall the boy became insane during the ensuing week and so continued up to the time of the trial, whereby the father was compelled to pay money for medical attendance, and lost the services of the son upon the farm. The jury rendered a verdict for $750.

      Magone do Holbrook and Thomas Sprott, for the appellants.

      Edward G. James, for the respondent.
   BoARDMAN, J.:

The constitutionality of the act of 1873, commonly known as the civil damage law, is not an open question in this court. Since the case of Baker v. Pope (2 Hun, 556) the law has been repeatedly adjudged valid. (Hayes v. Phelan, 4 Hun, 733; Dubois v. Miller, 5 id., 332; Jackson v. Minard, id., 530; Franklin v. Schermerhorn, 8 id., 112; Smith v. Reynolds, id., 128; Mead v. Stratton, id., 148; Quain, v. Russell, id., 319.) The legislative power to pass such acts is considered in Metrop. Board of Excise v. Barrie (34 N. Y., 657).

The complaint in this action is sufficient under the law and the authorities. The cause of action stated in the complaint is one given by the statute of 1873. By the intoxication and consequent sickness of plaintiff’s son, the plaintiff was injured in his property and means of support. The plaintiff was entitled to the services of his minor son upon his farm. The son had been accustomed to render such services, and worked for his father under his directions prior to this occurrence. Since then the son has been unable to work. The father has thus lost the value of such services, and been injured in his means of support. By the sickness of the son, arising from such intoxication, medical services were required and procured. For such services the plaintiff is liable. The value of such services rendered to his minor son can be collected of the plaintiff. To that extent he is injured in his property. Certain actual and positive damages have been suffered by the plaintiff. If they are due to' the conduct of"the defendants, they should be held responsible therefor. If the defendants had committed an assault and battery upon plaintiff’s minor son, from which the same damages had ensued, no doubt an action by the father to recover them of defendants would lie. (Whitney v. Hitchcock, 4 Den., 461; Reeves’ Dom. Rel., *376, 291; Ford v. Monroe, 20 Wend., 210.)

So it has been held that a druggist is liable to the husband for damages, caused by sale to the wife of laudanum to be used by her as a beverage, whereby she became sick and unable to perform her duties. (Hoard v. Peck, 56 Barb., 202.) The case under consideration is but slightly removed from those cited, and with the aid given by the law of 1873 it cannot be doubted that a cause of action was stated, and sustained by the evidence given on the trial.

It is not material who paid for the liquor or whether it was paid for at all. The act of selling or giving away the liquor, whereby the person to whom it is sold or delivered becomes intoxicated and does injury, constitutes the foundation of the action. Any other construction would, in many instances, nullify the statute and violate its intent.

The objections to evidence of the value of the son’s services, and to the fact that such services had before that time been rendered by the son for his father, are disposed of by the views already taken, as to the damages which may properly be recovered in such actions. The objections were taken upon the theory that such damages could not be recovered. The exceptions to the charge and refusals to charge were not tenable for the same reason. They all assume that the damages proved in the case do not come within the statute. I have attempted to show that such assumption is unfounded. On no other hypothesis could the absence of any proof of damages be asserted.

A. motion for a new trial was made upon the minutes and denied. One question only remains to be considered on the appeal from that order. Does the evidence show that the intoxication of the son caused his subsequent sickness? There is certainly enough evidence to justify the verdict rendered by the jury. Indeed, I do not think any one can read the evidence without becoming satisfied, that his drunken debauch in Ogdensburg and the injury inflicted by his fall were the causes of his subsequent sickness and mental derangement.

After reviewing all of the alleged errors as presented by the appellants, no cause is apparent why the judgment should be disturbed.

The judgment and order are, therefore, affirmed, with costs.

LeaeNed, P. J., concurred; Booxes, J., taking no part.

Judgment and order affirmed, with costs.


author: BoardmaN, J.:

text:
    THE MERCHANTS’ BANK OF CANADA, Respondent, v. ALFRED H. GRISWOLD, Appellant.

      Authority to make cl/rafts — Turn signed by agent — duty of payee-to ascertain the necessity for — when acceptance not neaessa/ry to bind drawee— Usury — by what law governed, where no place of payment is named.

    The defendant, a resident of this State, by a written instrument, authorized one Loveland, as his agent, to make drafts on him from time to time as might be necessary, to purchase lumber to be consigned to a person therein named. Held, that it was not necessary that the drafts drawn by Loveland thereunder should be signed by him “as agent,” so long as the fact of his agency was known to the party discounting them, and he acted upon the faith of it.

      Semble, that the latter was not bound to ascertain whether the moneys were needed to purchase lumber, nor whether such lumber was forwarded to the consignee named in the said instrument.

      Held further, that under the authority given to Loveland the defendant was in effect himself the borrower of the money raised by drafts drawn by Loveland, and that he was liable thereon, although the drafts had never been accepted by him.
    In pursuance of the said authority, Loveland, while in Canada, drew a draft upon the defendant, and the same was discounted for him by a Canadian corporation, no place of payment being named in the draft. In an action upon the draft the defendant claimed that it was void, because discounted at a usurious rate of interest. Held, that the validity of the draft was to be determined by the usury laws of Canada and no.t by those of this State.
    Appeal from a judgment in favor of the plaintiff, entered upon a verdict directed by the court.
    This was an action to recover the amount of two bills of exchange, drawn by one Horace Loveland in his own name, on the defendant, who resided at Whitehall in the county of Washington, for $1,000 each, and discounted by the plaintiff, a banking corporation duly organized under the laws of the Dominion of Canada.
    The complaint alleged that the defendant authorized Loveland, as his agent, to draw the bills in question by a written instrument, relying on it as amounting to an agreement to accept. The following is a copy of said instrument:
    Whitehall, N. Y., February 28, 1874

      To all whom it m,ay concern:

    This is to certify that I hereby authorize Horace Loveland, as my agent, to make drafts on me from time to time as may be necessary for the purchase of lumber for my account, and to consign the same to the care of P. W. Scribner & Co., Whitehall, N. T.
    A. H. GRISWOLD.
    The defendant denied all the allegations of the complaint except the making of the written instrument, and alleged that the bills were usuriously discounted by the plaintiff.
    On the trial the court ruled with the plaintiff, holding all the questions to be merely questions of law, and that the plaintiff was entitled to recover, and directed a verdict accordingly. .
    The defendant having duly excepted brought an appeal to the General Term from the judgment.

      James Gibson, for the appellant.
    The power given to Loveland was not exercised by his drawing in his own name. (Minae'd v. Mead, 7 Wend., 68; Chitty on Bills, 37, note 36 ; Pentz v. Staunton, 10 Wend., 271; Spencer v. Field, id., 87.) The authority was special and must be specially pursued. (Battey v. Carswell, 2 Johns. R., 48; Munn v. Com. Co., 15 id!, 44, 54; Cuyler v. Merrifield, 12 S. C. R., 559 ; Nixon v. Palmer, 4 Seld., 400, 401; New York and Virginia S. S. Bank v. Gibson, 5 Duer, 574; Scrippenrich, v. Bayard, 1 Peters, 264.) The complaint should have alleged that the bills in question were drawn for the purchase of lumber, were so applied, and the lumber shipped as required by the defendant’s agreement. The plaintiffs were bound to examine the ..agreement and ascertain the extent of Loveland’s authority, and see, as to the bills they discounted, that he acted within his authority. (Nixon v. Palmer, 4 Seld., 400, 401; Buck v. Va/nder-bili, 1 Sandf., 265; Pelafield v. Illinois, 26 Wend., 192; Andrews v. Kneeland, 6 Cow., 354; Story on Agency, § 133.) The drafts were drawn in Canada on a resident of this State, and by law payable at his residence in Whitehall. The alleged letter of credit was made, and was to be performed within this State. The validity of a promise to accept a bill is governed by the law of the place where it is to be accepted and paid. (Boice v. Edwards, 4 Peters, 41; Musson v. Luke, 4 How. [H. S.], 278.) And our statute prescribing the rules of validity, furnishes the law controlling the obligation. (New York, etc., v. Gibson, 5 Duer, 584; Bright v. Judson, 47 Barb., 29; Lee v. Selleck, 33 N. Ts, 617, 618; Slocum
      v. Pomeroy, 6 Cranch, 221; Barker v. Havens, 17 Johns., 234; 2 Kent’s Com., 460, note 1, and 461, note 7; Story on Conflict of Law, §§ 291, 306; Scofield v. Bay, 20 Johns., 102.) These decisions are placed on the ground that the law of the place where the contract is to be performed, determines its validity and construction. (Lee v. Selleck, 33 N. Y., 615; S. C., 32 Barb., 522 ; Bright v. Judson, 47 Barb., 36; Cooper v. Whldegrave, 2 Beavan, 282; Thompson v. Ketchum, 4 Johns., 285; Panning v. Gonsegua, 17 id., 518; Burekle v. Eckhart, 3 Com., 132; Jewell v. Wright, 30 N. Y., 264.) And by the laws of that place it may be defeated. (2 Kent’s Com. [5th ed.], 590, note a; id., 464, note a, and cases cited; Roguett v. Overman, 13 Albany Law Jour., 445; Musson v. Luke, 4 How. [IJ. S.], 278, 279; Andrews v. ILeriot, 4 Cow., 511-513 in note; Dewitt v. Brisban, 16 N. Y., 514.) The plaintiffs, when they discounted the bills in question, took them, as they allege, under the power made by defendant in New York, and there to be paid, and knew, or were bound to ascertain the law which governed their validity. (Htill v. Blake, 13 Mass., 153 ; Saunders v. Drake, 2 Atk., 465; 2 Kent’s Com. [5th ed.], 459, and note; Story on Conflict of Laws, § 301, b [4th ed.]; Jackson v. Jackson, 1 Johns., 424-433; Hellis v. Glark, 20 Wend., 24; Sheriff v. Hopkins, 1 Cow., 101; Robinson v. Bland, 2 Burr., 1077.)

      Tanner <& Potter, for the respondents.
    The promise contained in defendant’s letter amounted to an acceptance of the two bills in favor of the plaintiff, who had received the bills upon the faith thereof, and had paid value therefor. (1 R. S., 768; United States v. Fisher, 2 Cranch, 358; Goats v. The Mayor of H. T., 7 Cow., 585; Stuyvesant v. Mayor of N. Y., 7 id., 606; Jerome v. Ross, 7 Johns. Ch., 342.) Authority to draw drafts is equivalent to a promise to accept. (Barney v. Worthington, 37 N. Y., 112; Ulster Go. Bank v. McFarlcmd, 5 Hill, 433; S. C., 3 Den., 553; Bank of Michigan v. Eli, 17 Wend., 510.) The promise contained in the letter is an acceptance at common law and binds the defendant. (Goodrich v. Gordon, 15 Johns., 6; Pa/rker v. Grule, 2 Wend., 545; Barney v. Worthington, 37 N. Y., 112; Ulster Go. Bank v. McFarland, 3 Den., 553; Ba/nk of Michigan v. Eli, 17 Wend., 5Í0; Scott v. PiUcmgton, 15 Abb., 280 ; Wiltenburgh v. Cook, 18 Wall., 421, 429; and see Goolidge v. Pdyson, 2 Wheat., 66; Pilau c& Pose y. Misrop, 3 Burr., 166; Pierson v. Dunlop, Oowp., 571; Mason v. Hunt, Dong., 296; Townsley v. Gumrall, 2 Peters, 170.) At common law a conditional acceptance or promise to accept “ is as binding as an absolute acceptance if the condition lias been performed.” (U. S. v. Bank of Mett'opolis, 15 Peters, 377 ; Goolidge v. Payson,°% Wheat., 66 ; 1 Parsons on Notes and Bills, 304; Munger v. Shannon, 61 N. Y., 259.) The existence of the necessity which was to authorize the drawing of the draft “ was necessarily and peculiarly within the knowledge of defendant’s agent.” The act of drawing the drafts was an affirmation of the existence of that necessity, and defendant is estopped from denying the fact that such necessity existed. (.Burn v. Nichols, 1 Salk., 289; North River BcmkSr. Aymer, 3 Hill, 262; Farmers and Mechanic^ Bank v. Butchers and Drovers’ Ba/nk, 16 N. Y., 125; Griswold v. Paren, 25 id., 595; N. 7. andN. P. P. P. Go. v. Schuyler, 34 id., 30-68, etc.; Tome y. Parkersburgh Railroad Go., 39 Md., 36; 17 Am., 540, 555.) The alleged usury constitutes no defense. The bills are to be construed and governed by the laws of Canada, unless a different place of performance is named. (Curtis y. Leavitt, 15 N. Y., 1, 86, 88; Lee v. Selleclc, 33 id.; Oope y. Alden, 41 id., 303.)
   BoardmaN, J.:

By the answer the allegations of the complaint are all denied, except the written authority to Loveland to draw drafts as defendants’ agent. The affirmative defense is set up, that such drafts were usuriously discounted by plaintiff and therefore void for such usury. The facts stated in the complaint were proved upon the trial. It is now claimed they do not constitute a cause of action. In this I think the defendant is in error. The authority of Love-land, as defendant’s agent, to draw drafts being conceded, it is not necessary that the words “ as agent ” should have been annexed to his name upon the drafts, so long as the fact of his agency was disclosed and plaintiff acted upon the faith of it. Nor was it necessary for the plaintiff to ascertain whether such moneys were needed for the purchase of lumber, nor to see that the lumber purchased therewith was consigned to the care of P. W. Scribner & Co., Whitehall, N. T. The discretion and judgment in these respects were committed by the defendant to his agent, and he alone was competent to decide, and responsible for performance. (North River Bank v. Aymar, 3 Hill, 262; app., 16 N. Y., 143.) By the broad authority given, Loveland alone could determine whether the necessity existed, and his decision bound the defendant. Any other conclusion would make the written instrument a nullity, or a means for defrauding innocent and confiding money lenders. If, however, there is any vital force in these provisions in the authority, I think the defendant should have set up in his answer the conditions and the breaches by way of affirmative defense. By his failure in that respect, he is debarred from proving a lack of necessity for the money for the purpose indicated, and in the absence of such defense and proof, it will not be presumed that Loveland acted in bad faith and without authority in drawing these drafts.

The defendant, under the authority given to Loveland, was in effect himself the borrower of this money, and as such was liable, independent of the question of acceptance. (Barney v. Worthington, 37 N. Y., 112.) But the language of the instrument itself, amounts to an unconditional written promise to accept the draft, plaintiff having discounted it upon the faith of the authority for a valuable consideration. (1 R. S., 768, §§ 6, 7, 8; Ulster Co. Bank v. McFarlan, 5 Hill, 432; affmd. 3 Den., 553; Bank of Michigan v. Ely, 17 Wend., 508; Scott v. Pilkinton, 15 Abb., 280.)

The evidence that Loveland left the writing with plaintiff when he applied for the discount, was proper in connection with the evidence that plaintiff discounted the drafts on the faith thereof, as charged in complaint.

The conversation between Loveland and plaintiff’s cashier was competent. (North River Bank v. Aymar, 3 Hill, 262-267.) It was part of the res gestos; the declarations were made in pursuance of the authority confided to Loveland by defendant, and hence the defendant was chargeable with the effect of such language as if used hy himself; such declarations were also evidence of the necessity of drawing the drafts for the purchase of lumber.

The other exceptions to evidence have been sufficiently disposed of in the views of the case already taken ; it follows that the complaint stated a cause of action, and that the proof was competent and adequate to sustain the allegations of the complaint.

It remains for us to consider the defense of usury interposed by the answer. The money was borrowed by defendant by his agent in Canada, upon a draft executed there, and discounted by the plaintiff, which is a Canadian corporation ; the draft was not, by its terms, payable at any particular place; the money was borrowed to be used in Canada, and, in the absence of any other place named, was payable at plaintiff’s bank. It is conceded the drafts were not void for usury under the law of Canada; but it is contended by the defendant that it was a contract to be performed in New York, and hence is governed by the laws of New York in relation to usury. If that be true, the debt was usurious and void. The evidence that the contract was to be performed in New York, consists of the facts that the defendant resided, in that State, and that the draft was drawn on him specifying his place of residence; but in my judgment these facts do not produce such result; the contract was wholly made in Canada, one party being a resident, and the other party temporarily there in the prosecution of his business. The agent’s act was the act of the principal, and as we have seen, the principal being the borrower, was bound by the obligation without acceptance ; the contract was therefore in no sense to be performed in New York. If sent forward for acceptance, such acceptance would not be a performance of the contract in New York; no place of payment being designated, it is the duty of the borrower to pay where he borrows ; that is what the law requires of him. (Cope v. Alden, 53 Barb., 353; S. C., 41 N. Y., 303, and cases cited; Story on Conf. Laws, § 317.) The lender is not bound in such cases to seek the borrower to ask for payment; the borrower must find his paper and pay it; all this, by the terms of this contract, must be done in Canada at plaintiff’s bank. The execution, interpretation and validity of the instrument will be determined by the law of the place where it is made and to be performed. The manner of enforcement of the remedy is governed by the law of the place where the action is brought. (Scudder v. Union Nat. Bk., 1 Otto, 406, and cases cited.) As the suit to enforce performance is brought in this State, our law will control the remedy; to that extent and no further are our laws to affect this contract. (Lee v. Selleck, 33 N. Y., 615.) The nature and effect of these drafts are further illustrated in the opinion of Dwight, C., in First Nat. Bk. of Toledo v. Shaw (61 N. Y., 293); see also Davis v. Garr (6 N. Y., 124). I think these conclusions correspond with the purposes and intention of the parties, who both supposed they were contracting with reference to the laws of Canada. As soon as the holder parted with yalue for the drafts, they had a legal inception ; if they were legal and valid obligations at that time against the defendant, no subsequent action of the defendant could change their character in respect to usury.

These considerations dispose of the questions presented upon this appeal, and lead to an affirmance of the judgment with costs.

LeaeNed, P. J., and Bocees, J., concurred.

Judgment affirmed with costs.


author: Per Curiam:

text:
    WALTER S. PECK and others, Respondents, v. MICHAEL RICHARDSON and others, Appellants.

      Service of summons — admission of, as of prior day — entry ofjudgment upon — before expiration of twenty days from actual service — not fraudulent.

    The mere fact that a defendant admits the service of the summons upon him as of a day prior to the day of its actual service, and that a judgment is entered before twenty days from the actual service of the summons have elapsed, does not render such judgment fraudulent as against the creditors of the defendant.

      Troian v. Fagan (48How., 240) not followed.
    Appeal from a judgment in favor of the plaintiff, entered upon the trial of this action by the court without a jury.
    The action was brought to set aside as fraudulent a judgment obtained by the defendants Richardson, Carpenter and Topping against the defendant Gilbert, on the ground that Gilbert had admitted service of the summons in the action in which the judgment was entered, as of a date prior to the day of actual service thereof.

      L. M. Conklin, for the respondents.

      S. C. Keeler, for the appellants.
   Per Curiam:

There is no proof that the judgment of the defendants Richardson and others against Gilbert was fraudulent.

It was set aside solely on the ground, that Gilbert’s admission of service of the summons, was given as of a date prior to the day of the actual service; and that twenty days had not elapsed after the actual service, before the entry of judgment. This was not a matter of which the plaintiffs could complain. It was not a fraud upon them. It is not unlawful (except where so made by the United States bankrupt law) for a debtor to pay one creditor before he pays another.

The twenty days are allowed for the purpose, not of delaying the creditor, but of giving the debtor time to make a defense if he has one. If he has none, it would be strange for the law to forbid him to allow a judgment to be taken sooner. The plaintiffs may insist that their debtor’s property shall not be applied to any fraudulent debt. But they are not injured when it is applied to an honest debt by means of a judgment and an execution regular on the face.

We have examined the case of Trolan v. Fagan (48 How., 240), followed in the case of Brown v. Marrigold (50 id., 251), but we cannot agree with the views taken by the learned justice in that case. Even confessions of judgment, if they are made in good faith, may be amended when. they are imperfect, as against subsequent creditors. (Mitchell v. Van Buren, 21 N. Y., 300; Ingram v. Robbins, 33 id., 409.) Here the plaintiffs seek to go behind the record, which is regular, to find not fraud, but alleged irregularity of practice. We think they have no such right.

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

Present — Leaened, P. J., Bootes and BoARDMAN,. JJ.

Judgment reversed and new trial granted, costs to abide event.


author: BoakdmaN, J.:

text:
    JOHN P. SNYDER, Respondent, v. JAMES L. VAN INGEN, Appellant.

      Contempt — commitment for — release from imprisonment on habeas corpus — power to retrry and resentence for sa/me contempt.

    Defendant haying been imprisoned under an order adjudging him guilty of a contempt, was discharged on the ground that the punishment inflicted by the order was unauthorized. Subsequently he was again brought before the county judge, retried and resentenced for the same contempt, and additional and more severe penalties imposed upon him. Held, that it was error to retry him for the same contempt, and impose upon him new and different penalties.
    Appeal from an order made by the county judge of Schenectady county, adjudging the defendant guilty of contempt in disobeying an order of the said county judge, requiring him to appear before a referee and answer concerning his property, and for his contempt in disobeying an order requiring him to show cause, why he should not be punished for his contempt in disobeying said order to appear, etc., and ordering that a fine. of $118.36 be imposed upon him, to be paid by him to the plaintiff or his attorney, to indemnify the said plaintiff for his loss and injury occasioned by the misconduct of the defendant, and that he pay the further sum of forty-four dollars to the plaintiff’s attorney for his costs and disbursements in the matter, and that he stand committed until the said fine be paid.
    On the 11th of July, 1876, the defendant was committed to the county jail for contempt in failing to appear before the said referee, by the county judge. The order imposing upon him a fine of fifty dollars, and directing “ that upon payment of such fine the sheriff immediately bring said defendant before me to abide my further order, and further purge himself of such contempt.” Subsequently the defendant was discharged on habeas corpus, on the ground that the direction in the order that the defendant should, after payment of the fine, he brought before the county judge to purge himself of his contempt, was illegal and unauthorized. Subsequently the defendant was again brought before the county judge, and after a hearing upon interrogatories and oral examination, was again adjudged guilty of a contempt, and the order hereinbefore first set forth was made.

      Alex. J. Thompson, for the respondent.

      J. H. Olute, for the appellant.
   BoakdmaN, J.:

After the defendant was discharged on habeas corpus from his imprisonment, under the first commitment for contempt, he could not, legally, be again arrested fon the same cause unless under 2 Revised Statutes, 571, section 59. By subdivision 3 of that section it is provided that the person so discharged may be again imprisoned if, in a civil action, the party has been discharged for any illegality in the judgment or process hereinbefore Specified, and is afterwards imprisoned by legal process for the same cause of action.” The discharge on habeas corpus in this case was by reason of an illegality in the process of commitment, after a conviction for contempt. ■ The punishment imposed was in part unknown to the law. The defendant was, therefore, discharged.

Assuming, then, that a proper conviction had been had for contempt, the county judge might, under the provisions of the section above cited, have issued a new commitment, omitting the illegal and improper portions of the old process. Instead of doing this the county judge proceeded to retry the defendant for the same offense, and adjudged him guilty of a contempt, after and notwithstanding the former adjudication upon the same subject. This would, perhaps, not have been fatal in and of itself, if the commitment had been in pursuance of the first conviction, and imposed only such legal penalties as were contained in the first process. But a still more serious error was committed in passing a new, and in some respects, far more severe penalty upon the defendant based upon the second conviction. This presents a case of two trials and two convictions for the same offense, each independent of the other. The discharge under the first conviction was final, unless the county judge could make out a new commitment to be sustained by the first conviction, avoiding thereby the irregularity for which the prisoner was discharged. Or, in a doubtful case, a better way would bare been to have begun the supplemental proceedings de novo, and laid the proper foundation for new chai’gesfor contempt, which could have been pursued with greater accuracy.

It is sufficient, however, to say, that it was erroneous to retry and resentence, by new and different penalties for the same cause, a prisoner who has been discharged on habeas corpus by order of the court.

Hence, we think the order of the county judge should be reversed, with ten dollars costs and expenses of printing.

Present — Leaened, P. J., Bqgkes and Boaedman, JJ.

Order reversed, with ten dollars costs and printing.


text:
    DELMAR FIRMIN, Respondent, v. JAMES FIRMIN, Appellant.

      Trespass — cutting cmd scurrying away logs — Damages — detm'mined by t7ie value of the logs as they lay upon the land.

    In an action brought to recover the damages, sustained by defendant’s wrongful act in cutting and carrying away logs from the land of the plaintiff, the latter is entitled to recover the value of the logs as they lay upon the land, and he is not restricted to the value of the trees as they stood.
    Appeal from a judgment in favor of the plaintiff, entered upon the report of'a referee.
    The action was brought to recover damages sustained in consequence of the wrongful act of the defendant, in cutting and carrying away certain logs and trees from the lands of the plaintiff.

      Edwin Countryman, for the appellant.

      S. 8. Morgan, for the respondent.
   Per Curiam:

The only question made on the appeal is, whether the referee was right in giving the plaintiff, as damages, the value of the logs as they lay on the plaintiff’s land after they had been- cut. The defendant insists that the plaintiff could recover only the value of the trees as they stood.

We think the referee was right. The case of Skinner v. Wheeler (5 N. Y. S. C., 709) decides nothing on this point. The case of Stanton v. Pritchard (11 S. C. N. Y., 266). did not involve the question here made. That was an action for trespass in cutting down timber. The land was wood land; the timber cut principally hemlock. The plaintiff recovered and the judgment was affirmed. The court, among other things, had charged that the defendant was liable for the value of any timber that he carried away, although he did not cut it down. The defendant offered to show the value of the lot before, and the value after the trespass was committed, and claimed the difference to be the rule of damages. The court excluded this evidence. That decision, therefore, does not conflict with the referee’s rule of damages in this case.

Nor does the case of Van Deusen v. Young (29 N. Y., 9) conflict with this rule.

When the defendant had cut down the plaintiff’s trees and had cut them into logs, the ownership was still in the plaintiff. (Church v. Lee, 5 Johns., 348.) Even though that trespass was not willful, yet there was not such a change of material as to make the logs the property of the defendant. (Silsbury v. McCoon, 3 N. Y., 379, and authorities there cited.) And, therefore, when the, defendant took the logs away from the plaintiff’s land he was liable for their value, such as it was at the time and place of such taking. The judgment should be affirmed, with costs.

Present — LeaRNed, P. J., Bocees and BoardmaN, JJ.

Judgment affirmed, with costs.


author: BooKes, <7.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. ABRAHAM LANSING, Plaintiff, v. GRENVILLE TREMAIN, Defendant.  SAME ex rel. JOSEPH McCANN v. JAMES KILBOURN.

      Ohm'ter of the eity of Albany— chap. 77of 1870 — Appointment of corporation counsel —• term of office — ‘ ‘ biennially ” — meaning of.

    Section 10 of title 8 of chapter 77 of 1870, proyid.es that the mayor of the city of Albany, with the consent and approval of the common council of said city, shall “ biennially appoint ” certain officers therein named, who shall continue in office until their successors have been appointed and duly qualified; other provisions of the act require a biennial election of the mayor and common council; that the common council shall, “ biennially,” elect its presiding officer from its own body, and “biennially” appoint its clerk.

      Held, construing the several provisions together, that it was intended that the appointments specified in section 10 wore to be made biennially, by each succeeding biennial administration of the municipal government, immediately upon its due organization, or so soon thereafter as it deemed best to exercise that right, without regard to the time when former appointments were made by the previous mayor and common council.
    That after the commencement of each “biennium,” an officer theretofore appointed under that section would continue in office only as holding over until the appointment of his successor.
    The word “biennially” construed as signifying, not duration of time, but a period for the happening of an event.
    Controversy submitted without action under section 372 of the Code.
    This controversy involves the right of the relator to hold and exercise the office of corporation counsel of the city of Albany, under an appointment by the mayor and common council of the city, elected April 11, 1876, and entering upon their respective offices on the first Tuesday of May, 1876, as against the defendant, claiming the same office under an appointment of October 23, 1876, by a mayor and common council whose term of office expired on the 2d day of May, 1876.
    Mr. Judson was serving as mayor when the election of April 11, 1876, occurred. He had been elected to fill a vacancy caused by the resignation of bis predecessor, and also for a term commencing tbe first Tuesday of May, 1874, and ending the first Tuesday of May, 1876, at' one and the same charter election, to wit, the election held on the 14th of April, 1874; immediately after which election Mr. Judson entered upon the duties of the office, which he continued to perform till the first Tuesday of May, 1876.
    On the 23d April, 1874, he appointed the defendant, with the consent and approval of th‘e common council of Albany, to the office of corporation counsel.
    The defendant took the oath of office April 25, 1874, and filed his bond April 28, 1874.
    The defendant also held over, under this appointment, during the succeeding full term of Mayor Judsdn’s service and up to the time of his reappointment as hereinafter stated.
    After the election of April 11, 1876, Mr. Judson- — the defendant then holding the office of corporation counsel under the appointment of April 23, 1874 — on the 17th April, 1876, sent in a list of city officers to the common council for appointment and confirmation, and among the others the name of the defendant for the office of corporation counsel. These nominations were thereupon confirmed by the common council. They were also reconfirmed on the 24th April, 1876, and prior to the entry of the new' administration into office.
    Mr. Banks took the oath of office as mayor on the 20th April, 1876, and qualified for his duties, which were to and did commence on the first Tuesday of May of that year.
    On the 23d October, 1876, with the consent and approval of the common council, he appointed the relator to the office of corporation counsel, and at the same time, with like consent and approval, appointed other incumbents to the appointable city offices.
    The relator qualified and thereupon assumed to discharge the duties of the office, but the defendant disputed his right to enter thereon, claiming that under the appointments made by Mr. Jnd-son on the 17th April, 1876, he was entitled to hold the office for the term of two years, under the provision of section 10 of title 3 of chapter 77 of 1870, known as the amended charter of the city of Albany, which is as follows ;

      “ § 10. The mayor, with the consent and approval of the common council of the said city, shall, biennially, appoint one chamberlain, one deputy chamberlain, one city surveyor and engineer, one street commissioner (who may, with the approval of the mayor, appoint two superintendents of streets), one corporation counsel, one city marshal, one superintendent of lamps, one inspector of weights and measures, one overseer of the poor, and such other officers as they may deem proper; and said common council shall prescribe the powers and duties of said officers and regulate their salaries; such officers shall continue in office until their successors have been appointed and duly qualified.”
    In the first case, Abraham Lansing, for the plaintiff.

      JS. W. Peoleham, for the defendant.
    In the second case, 8. 0. Shepard and G. L. Stedmcm, for the plaintiff.

      Samuel Band, for the defendant.
   BooKes, <7.:

The question involved in this case is embarrassing in the extreme, as it admits of arguments more or less cogent, yet tending to divers conclusions. Nor are we aided in its solution by any adjudged case having direct bearing upon it by way of analogy. The case seems to stand alone in its peculiarity, depending for its proper decision upon the construction to be given to language of common use, yet so employed in a legislative enactment as to leave grave doubts as to its legal import. In considering the subject there are a few general principles to be observed as a basis for investigation. It is a cardinal principle in the construction of a statute, that it be so interpreted as to carry it into effect according to the intent of the legislature, which intent must be collected from the particular provision under consideration, read in the light of its general context. The meaning must be sought out and followed in its exposition, and the rule is laid down that when the intention may be collected with certainty, such intention must prevail over the literal sense of the terms employed. The entire act must be examined as a whole, as also its component parts. Holding these general principles in mind, let ns turn to the facts of this case and to the law which we are here called upon to interpret. The charter of the city of Albany provides that the mayor, with the consent and approval of the common council of the city, shall biennially appoint a corporation counsel, who shall continue in office until his successor is appointed and shall duly qualify. Under this provision the defendant was duly appointed to the office of corporation counsel on the 24th of April, 1876, and immediately thereafter qualified and entered upon the duties of such office; or rather continued in the- performance of such duties, he having been such officer for a considerable time previous thereto. The defendant is still in possession of the office, claiming under such appointment. At the municipal election held pursuant to the provisions of the city charter on the second Tuesday of April, 1876, a mayor was elected in the place of the then incumbent, and also new members of the common council, whose terms of office would commence on the first Tuesday of May then next following. On the 23d of October, 1876, the relator was appointed to the office of corporation counsel in dire form by the mayor, with the consent and approval of the common council, and having duly qualified, claimed his right thereto and demanded of the defendant the books and papers pertaining to the office. The defendant refused acquiescence in the relator’s demand, insisting that he was the lawful incumbent of the office, and was entitled to hold it and exercise its duties for two years from the time of his appointment, approved by the common council April 24, 1876. This claim is based on the provision of the charter which authorizes the mayor, with the consent and approval of the common council, biennially ” to appoint a person to that office, it being insisted that “ biennially ” signifies for two yearsand that the term of office was for two years ” from the time of the appointment, or from the time of qualification under the appointment. This construction of the provision of the charter the relator controverts and as we think, with reason.

Biennially does not, in its ordinary and proper use, signify duration of time, but defines a period for the happening of some event. If, therefore, in this case it implies duration of time, and thus declares a term, it must be by reason of some peculiarity in its use in this instance. We are thus brought to consider not only the word itself in its ordinary meaning, but its context, the subject to which it relates, and, indeed, the entire city charter; for the scheme of municipal government disclosed thereby may afford a clue to its proper signification. Now, it seems that there were certain important changes in the governmental affairs of the city, contemplated and provided for in the charter, which were to occur “ biennially,” that is, every two years. A mayor was to be elected biennially, as were also the members of the common council. These officers were elected for a term of two years. Such term was fixed to commence on the first Tuesday of May succeeding their election in April. By the express terms of the charter the municipal year was to commence on the first Tuesday of May following the election. There would then be inaugurated a new administration, to continue for the term of two years. It was also provided that the common council should, biennially,” elect from its own body its presiding officer, and “ biennially ” appoint its clerk. Thus the scheme of municipal government promulgated by the charter looked to a biennium, to commence with the term of the newly elected officers who, in theory at least, were supposed to be the immediate representatives of the people of the municipality. To those officers the governmental affairs of the city were intended to be intrusted during their term of office — not partially but wholly.

This idea could only be carried out by giving to those officers the appointment of their subordinates. Under the construction claimed by the defendant for the provision we are considering, it would be in the power of an administration to select most or all of the ministerial officers of the next succeeding one. This could be accomplished by simply permitting those officers to hold over under old or former appointments until near the close of the administration, and then proceed to make appointments for the succeeding two years. Such a result cannot have been intended; for, as is well stated by counsel, it would obstruct and often defeat the very object of an election, when a change of policy and of elective officers had been determined, by destroying the control of the new administration over the administrative officers. So, too, it would be a subversion o.f all harmony in the tenure of those offices, by permitting the terms to commence and end at different and unsettled periods, as a result of accidental causes, or to answer a sinister purpose. Again, it is a sound rule of construction that when a word or phrase is used in one provision of a law with plain and undoubted meaning, and it be also introduced into another part of the same act, the undoubted sense in which it was employed in the one case should be adopted in giving it construction in the other. Now, in the seventh section of title 3 of the charter, very similar language is employed as in the section under consideration. It is there provided that the common council shall “ biennially ” elect a president from its own body, and “ biennially ” appoint a clerk. It will not be pretended that a term of office for those officers was here contemplated, which could by any possibility extend beyond the two years for which the appointing officers were elected. Such a construction would be unreasonable, and often, if not always, impracticable in its results. It was undoubtedly contemplated that the “ biennial ” election and appointment here provided for should occur, be made immediately following the inauguration of the new biennial administration. Let the spirit and intent of this provision be carried into effect, and its letter would be complied with by the selection of those officers “ biennially ” at the commencement of the term of the newly elected common council, fixed for the first Tuesday of May following the election of its members. An omission then to make the selection, through accident, want of harmonious action or intentional neglect of duty, would not change the law so as to give it an effect other than what was designed, and what it would have had on the hypothesis of regular, proper and harmonious action at the time intended. Giving the same construction to the section of the charter here under examination, and in like sense it would be determined that the appointments thereunder were intended to be made biennially on the inauguration of every new biennial administration. Assuming that these newly elected officers will meet and organize at the time fixed by the charter, and that they will take action as authorized and directed by its provisions, honestly and harmoniously, and the appointments directed by the section under consideration would be made in accordance with both its letter and spirit. The appointments would then he biennially ” made, as authorized and required to be made, and at the proper time, giving reasonable and fair construction to the various provisions of the charter, in view of the scheme of municipal government promulgated thereby. It will be observed that no time is specified as a term of office, no time for the beginning or ending of a term. The mayor, with, etc., “ shall biennially appoint.” It is not declared that the appointment shall be for two years, but that it shall be made biennially, that is, every two years, and that the appointee “shall continue in office” until his successor shall be appointed and shall duly qualify. Is it not reasonable to hold that it was intended by this provision, that there should be a right of appointment, in the way provided, for each term for which the appointing officers were elected ? Under this construction there could be an exact compliance with the letter of the provision. There could be a biennial appointment. The term of the appointee would expire with the biennium, for which he was appointed, and he would continue in office thereafter only as one holding over until his successor was duly chosen. We are of the opinion that if the spirit of the provision be fairly and effectually carried out, there should be an appointment at the first meeting of the newly elected officers, and thus according to the letter and intent of the law an appointment would be made biennially. Thus practically and by reason of the proper action of the appointing officers, the incumbent would hold for two years; not, however, because the law gave him a term of two years? duration, but because the appointing officers performed their duty at the time and as contemplated by the charter. Nor is this conclusion inconsistent with the amendment introduced in 1871, whereby it is provided that the mayor shall fill, by appointment, with the consent of the common counil, until the next charter election, any vacancy which shall occur by the death or resignation of any city officer whether elected or appointed. It is not here intimated that the appointments authorized to be made biennially under the section we are now considering, should not be for the biennium so distinctly kept in view throughout the entire charter. And it may be here observed that this amendment marks the beginning of a municipal year, as the proper time to enter upon new action in municipal affairs. It gives no countenance to the idea that official terms of appointees might terminate by limitation, at divers and unsettled periods during tbe municipal year. We are referred to the decision in The People v. Green (2 Wend., 266) as an authority hostile to the construction above suggested. The question there was whether or not the term of office to which the party (a sheriff) was elected, was for three years or for a shorter period. It was held that the officer was elected for a term of three years. Unlike the ease in hand, a term was unmistakably declared, or as the court said, was fixed by the strongest implication. It was provided in this case that, the officer should be chosen once in every three years, should hold no other office, should be ineligible for the next three years after the termination of his office, and might be removed by the governor at any time within the three years for which he should be elected; and further, the term was fixed by law to commence on the first of January following his election in November. Here a term was unmistakably intended, fixed to commence at a specified time, and the question was only how long from that time it should continue. We do not deem the case cited as conclusive of this at bar. That case was not, as is this now before us, surrounded by various matters having a necessary bearing on the question of construction involved in it: and, besides, the language employed in the two cases has little analogy when considered with reference to contexts, and to the dissimilarity existing as to the 'mode of selecting the officers. These remarks apply also to the case of The People v. Coutant (11 Wend., 132, 511), which was but a repetition of Green's Case (supra). Nor is the decision in Marshall v. Harwood (5 Md., 423) conclusive of this case. In the case last cited it was expressly provided that the officer should be elected “ for two years,” and there was nothing in the case tending to show that those words had, as then used, any different or other meaning than such as was ordinarily given them.

It is argued before us that the appointment in this case rested in the pleasure of the appointing officers. This argument is based on the position that the charter has not limited the duration of the office; in which case, according to the express provision of the statute, the office should be deemed to be held during the pleasure of the authority making the appointment. (1 R. S., 11Y, § 8; State Const., art. 10, § 3.) This argument is not entirely without force, especially in view of the practice of the highest department of our government, extending back through many administrations. The justices of the Supreme Court in the Territories are appointed by the president of the United States, with the advice and consent of the senate. By act of congress, “they shall hold their offices for four years, and until their successors are appointed and qualified.” (R. S. of the U. S., p. 331, § 1864.) This provision differs from the one we are considering in this, that it expressly declares a term of four years’ duration. Yet, under this law, the president and senate exercise the power of appointment at pleasure. But, however this point should be determined in the case in hand, we prefer to put our decision here on the ground that, in view of the language employed in the section under examination, and of the various provisions of the charter, and of the governmental polity prescribed by it, it was intended that the appointments specified in that section were to be made biennially by each succeeding biennial administration of the municipal government at once on its due organization, or so soon thereafter as it was deeme’d best to exercise the right, without regard to the time when former appointments were made by the superseded officers.

This conclusion gives the office of corporation counsel to the relator in this case. Judgment in his favor is therefore ordered, with costs.

The case is not without its embarrassments. It would be unfair to ourselves to omit allusion to them, as though we had reached the conclusion above declared readily and with the most entire satisfaction of its correctness. Grave doubts have been encountered in the investigation, and we are conscious that the conclusion arrived at may be open, perhaps,, to just criticism. We were called upon to express our convictions of right in the ease, and, after careful study, we found ourselves less embarrassed in declaring the result above given, than in pronouncing a contrary decision.

LearNbd, P. J., and BoardmaN, J., concurred.

Judgment for the relator in each case.


author: Learned, P. J.

text:
    ANSEL N. PARTRIDGE, Plaintiff, v. CHRISTOPHER F. NORTON, Defendant.

      Direction of verdict, subject to opinion of General Term — not proper unless there be no dispute as to the facts.

    Applioation for judgment on a verdict in favor of the plaintiff, directed at the Circuit, subject to the opinion of the General Term.
    The court at General Term say: “ The defendant objected to certain evidence offered by the plaintiff. The objection was overruled, the defendant excepted, and .the evidence was received. At the close of the trial, the court directed a verdict for the plaintiff, subject to the opinion of the court at General Term. This was a mistrial. ‘ Hpon a verdict subject to the opinion of the court, the question is never whether a new trial shall be granted, but which party, upon a conceded state of facts, shall have final judgment.’ (Qóbh v. Cornish, 16 N. Y., 602; Purchase v. Matteson, 25 id., 211.) There was- no waiver of the exceptions, or consent to the directing of a verdict, as in ■Byrnes v. Cohoes (12 S. C. N. Y., 602).
    There must be a new trial, costs to abide the event.”

      Magone <& Holbroolc, for. the plaintiff. WilUam E. Smith, for the defendant.
   Opinion by

Learned, P. J.

Present — Learned, P. J., BocKes and Boardman, JJ.

Application for judgment denied and new trial granted, costs to abide event.


author: BoaedmaN, J.;

text:
    FLORENCE VAN VALKENBURGH aud JOHN L. VAN VALKENBURGH, Administrators, etc., Respondents, v. THE AMERICAN POPULAR LIFE INSURANCE COMPANY, Appellant.

      Life inwwram.ce — wa/rranties—Conditions ly which, 'policy is avoided — hv/rden of proof as to, rests on company.

    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 upon a policy of insurance issued upon the life of Lawrence H. Van Valkenburgh, deceased.
    The court at General Term, after holding that the case of Fitch v. The American Popular Life Ins. Co. (59 N.Y., 564) establishes, that the defense of a breach of warranty could not be interposed in this action, and that the only defense available arising from any misstatement or misrepresentations of the assured in his application, must arise out of fraud, proceeded as follows: “ The only other defense suggested by the answer is, that the insured died of a disease induced or aggravated by intemperance, whereby, by the terms of the policy, it was to become void. One of the points made by the defendant relates to the burden of proof upon this subject. The court held it was upon the defendant; to which exception was taken. This ruling seems to accord with general principles. The obligation of proving any fact lies upon the party who substantially asserts the affirmative of the issue. (1 Gr. Ev., § 74; Piedmont cmd A. Life Ins. Co. v. Ewing, 2 Otto, 377.) This is one of many conditions upon which the policy was to become void. They are, therefore, conditions in avoidance of the policy, and are to be alleged by way of answer, and proved as substantive defenses. (2 Gr. Ev., § 402.) They are not conditions precedent. In eases of suicide, I understand, it has been held that the burden of proof is upon the defendant where that fact is relied upon to avoid the policy. (Bliss on Ins., 584, 585, and cases cited.)
    But if any error upon this subject was committed it was after-wards remedied by a full investigation of the facts pertaining thereto.”

      Amasa J. Parker, for the appellant. George Bliss, for the respondents.
   Opinion by

BoaedmaN, J.;

Learned, P. J., concurred.

Present — Leaened, P. J., Bocees and Boaedman, JJ.

Judgment and order affirmed, with costs.


author: Bocees, J.

text:
    JAMES S. THURSTON, Respondent, v. CHARLES G. FAIRMAN and others, Appellants.

      Provision, foi' assignment of fees and salm'ies of pubUa office — when forbidden by public policy — Agreement in a/riicle of pa/rtnership, to account to firm for money so received — when valid.

    Appeal from a judgment in favor of the plaintiff, entered upon the report of a referee.
    This action was brought upon a written guaranty given by the defendants for the full and faithful performance by the defendant Charles G. Fairman, of a certain agreement made by him with the plaintiff, whereby the firm of Fairman & Thurston, composed of the defendant Fairman and the plaintiff, who were engaged in carrying on the newspaper, job printing and book binding business in all its branches, in the city of Elmira, was dissolved, and the assets and property thereof sold by the plaintiff to the said Fairman, who agreed to pay to the plaintiff the one-half of all debts owing to the partnership October 1, 1870.
    The General Term, after examining the evidence and holding that the proceedings of the referee were sustained thereby, proceeds :
    “A question remains growing out of one of the provisions of the partnership agreement. This provision is as follows: ‘ Third. It is understood and hereby agreed that all salaries, perquisites and earnings received by either partner from any office or employment is the property of the firm, and shall be accounted for and paid into the funds of the firm as soon as received, in the same manner as though it was received from the debtors of the firm.’ It was insisted before the referee, and it is now urged on the appeal, that this provision is void because against public policy. The referee held it valid and binding on the parties. It was decided in Bliss v. Lawrence (58 N. Y., 442), in the Court of Appeals, that it was against public policy and unlawful to allow the assignment or transfer of a salary of a public officer before it becomes due. But it was decided in The People ex rel. Grattan v. Dayton (50 How., 143) that the fees of a public officer, earned and unearned, were assignable. The judgment in this case was affirmed at General Term (3 Weekly Dig., 341), but without passing on this question. (See, also, Stover v. JEcyleshimer, 46 Barb., 84; in Ct. of App., 3 Keyes, 620; Field v. The Mayor, 6 N. Y., 119.) There seems to be a very marked distinction between the case here under consideration, and the case of an assignment of a salary unearned and to become due. The ground of objection to such assignment grows out of a necessity which exists in every government, of preserving efficiency in the public service by seeing to it that public salaries go to those who perform the public service. Judge JoHNSON says, in Bliss v. Lawrence: ‘ The public service is protected by protecting those engaged in performing public duties; and this not on the ground of their private interest, but upon that of the necessity of securing efficiency in the public service, by seeing to it that the funds provided for its maintenance should be received by those who are to perform the work, at such periods as the law has appointed for their payment.’ In the case of an assignment of a salary unearned and to become due, the officer has anticipated his compensation ; hence the inducement to faithfulness in bis public duties is greatly impaired and enfeebled. That which produces this result is unlawful, being against public policy. .But the case in hand is not that of an assignment of an unearned salary, when all control over the expected funds, even to their reception in the first instance is passed over to another. It is but-an agreement as to the manner in which the salary shall be employed or disposed of, when earned and paid. The- parties took upon themselves an obligation, that is, bound themselves one to the other, as to the manner in which salaries, perquisites, etc., received by them respectively should be applied or employed when received. The case as between them rested in contract, and tbeir agreement involved only personal interests. The agreement did not take away from the parties the right to receive their salaries at such periods as the law appointed for their payment. Its effect was not to impair their obligations as public officers, or to present inducements to inefficiency or unfaithfulness in the performance of their public duties. All incentive to efficiency and fidelity in the public service remained unimpaired by their personal stipulations, in regard to the disposition of the funds when received. We are, therefore, of the opinion that no principle of public policy is involved in the clause of the agreement here considered, which should relieve the parties from its performance.
    There was, consequently, no error committed by the referee in holding the parties to their stipulation.”

      8. B. Tomlinson, for the appellants. B. King, for the respondent.
   Opinion by

Bocees, J.

Leaeked, P. J., and BoaedmaN, J., concurred.

Judgment affirmed, with costs.