author: Boaedman, J.: Hardin, P. J.:

text:
    PETER PHILLIPS, Respondent, v. SARAH PLATO, Appellant.

      Accommodation indorser — when he cannot compel the guarantor of a note to contribute.

    ©.II. Plato, the defendant’s son, offered a note made by himself and indorsed for his aocommodation by the plaintiff, to one Olney in payment of an indebtedness due to him. Olney having refused to accept it unless the defendant’s signature was procured, the defendant, with full knowledge of the facts, executed on the back of the note, above the plaintiff’s signature, an absolute guaranty of the payment of the note. The note was delivered to Olney. The plaintiff had no knowledge of or participation in the procuring of the defendant’s guaranty. The plaintiff, having been compelled to pay the note,brought this action against the defendant as a guarantor, claiming that she, as a co-surety for the principal debtor,©. H. Plato, who was insolvent, was liable to contribute one-half of the amount the plaintiff had been compelled to pay.

      Held, that the action could not be maintained.

      Harris v. Warrier (13 Wend., 400); Belloni v. Hreeborn (63 N. Y, 383) followed; Wells v. Miller (66 id., 255) distinguished.
    Appeal from a judgment in favor of the plaintiff, entered upon the trial of this action at the Oneida Special Term.

      J. P. Olney, for the appellant.

      Bentley c& Jones, for the respondent.
   Boaedman, J.:

This is an appeal from a judgment upon a decision by the court without a jury. The action was upon a guaranty of payment of a promissory note, for the amount of the note. The complaint was amended on the trial so as to constitute an action by plaintiff, as indorser, who had paid the note, against the defendant who had guaranteed its payment, for one-half of the amount paid.

G. H. Plato, defendant’s son, was indebted to one Olney, and to pay the same made this note and procured the plaintiff to indorse it. It was then offered to Olney, who refused to accept it unless G. H. Plato would procure'the defendant’s signature. Soon after the defendant, with full knowledge of the facts, executed on the back of the note over plaintiff’s indorsement an absolute guaranty of the payment of the note. The note was then delivered by G. H. Plato to Olney. When it became due it was dishonored, and plaintiff paid it. He now' brings this action against the guarantor, and claims that she, as a co-surety for G. H. Plato, the principal debtor, is liable for contribution, and a recovery for one-half of the amount paid by plaintiff is given against the defendant G. H. Plato is insolvent. The plaintiff had no knowledge of or participation in the procuring of defendant’s guarantee, nor did he require it.

It is plain that the defendant’s guaranty was given without consideration and as an accommodation to her son, the principal debtor. By the instrument she became absolutely liable to pay the debt. She did not assume this liability at the request or in the interest of the plaintiff. Indeed, his position as indorser was complete before the necessity of any other security became known. He, doubtless, supposed the creditor would accept the note with his indorsement alone. The defendant knew these facts, and signed for the purpose of giving to the note, as it then existed, the security of her name. In the language of Talcott, P. J., in Deck v. Works (18 Hun, 266-272), “ the guarantor of a note on which there is a prior indorsement, undertakes for the performance of each contract which he has guaranteed, that of the maker and that of the indorser. If either fails to perform the contract which is guaranteed, a cause of action arises to the holder of the guaranty for such default.” As a corollary, it must be true that if either the maker or indorser shall pay the note the guarantor’s liability ceases.

Again, until the note had been indorsed by the plaintiff it had no commercial or negotiable existence. When it was so indorsed its use was followed by liability; but before such indorsement it was incapable of being used to create an obligation. When the note was presented to defendant it was complete and perfect in its form. Such perfect and complete note she guaranteed payment of. It has been paid by the parties to it, or one of them. That is what she agreed should happen, and her obligation is at an end. There is no reason to believe the plaintiff required or expected defendant to sign the note as his co-surety, or for his protection in whole or in part. Her signature was placed there with the purpose of becoming, in effect, a second indorser, but was modified because she was a married woman. The difference between an indorser and guarantor is slight. The former becomes liable on condition of notice of dishonor if the note is not paid by the maker when due; the latter becomes absolutely liable to pay if the note is not paid when due. (Brown v. Curtiss, 2 N. Y., 230; McMurray v. Noyes, 72 N. Y., 523, 525.) The defendant, by her guaranty made under the circumstances of this case, became the surety of the maker and indorser. She did not intend to become the co-surety of the plaintiff and equally liable with him for the debt, but only for his default. In this respect the case is brought within Harris v. Warner (13 Wend., 400); Belloni v. Freeborn (63 N. Y , 383, 388). No importance is attached to the position of the guaranty above plaintiff’s indorsement upon the note.

For these reasons we are constrained to differ with the learned judge who decided this case below. Nor do we think the case of Wells v. Miller (66 N. Y., 255) is controlling, although the decision was mainly founded upon it. The parties to that action were in fact sureties for the principal debtor and both signed the note beneath his signature. The question was whether the plaintiff, who was a partner of the debtor, had not so acted as to deceive the defendant into the belief that he was signing as surety for both the partners, and hence not entitled to.contribution in equity. No such question is presented in the present case. This is an action by an indorser against a guarantor, where the purposes and intent of the parties, their mutual relations to each other, to the note and its maker, the possible liabilities of each and the actual liability of the defendant, after payment of the note by plaintiff, are open foi consideration. In Wells v. Miller {supra), the court considers only whether contribution should be enforced between actual and recognized co-sureties in equity, by reason of the peculiar facts in the case.

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

Eollett, J., concurred.

Hardin, P. J.:

Plaintiff’s contract of indorsement was made without reference to the defendant; it was to pay if the maker did not and the holder gave notice of the dishonor.

Defendant’s undertaking was that if the note was not paid by the maker or indorser, she would pay it. (Moakley v. Riggs, 19 Johns., 69.) The indorser has paid it. He has no more claim upon the defendant than though she had in form, as was her intent (aside from binding herself as a married woman), become a second indorser. I concur.

Judgment reversed and new trial ordered, with costs to abide the event.


source: Caselaw Access Project

author: Bo ARUM AN, J. I •

license: Public Domain

text:
    ANNA M. O’DOUGHERTY, Respondent, v. REMINGTON PAPER COMPANY, Appellant.

      Admeasurement of dower — question as to whether a specific parcel of land can be set aside —at what time and in what manner it must be determined — the rights of all the parties must be considered— Code of Civil Procedure, sec. 1619.
    In this action, brought to recover dower in certain real estate claimed to be owned by and to be in the possession of the defendant, defenses were interposed, to hear, try and determine which a reference was ordered. In the pleadings there was no issue joined as to the practicability of an actual admeasurement of a specific portion of the land to the plaintiff for her dower, the only allusion thereto being in the alternative relief demanded in the plaintiff’s prayer for judgment. Upon the trial the referee, against the objection and exception of the defendant, received evidence tending to show that the property was so situated that a distinct parcel could not be admeasured to the plaintiff without injury to her rights, and upon the evidence so received found that a distinct parcel of the property could not be admeasured to the plaintiff without material injury to her interests, and directed that the premises be sold.

      Meld, tliat the question of the practicability of an actual admeasurement of the plaintiff’s dower was not one to be tried by the referee, and that the direction for the sale of the property being unauthorized should be stricken from the report.
    Although, in the case of a trial by the court, the question of actual admeasurement of dower might be investigated and decided so that the rights of the parties, and the necessity of a sale and the interlocutory judgment, could all be determined on a single hearing, yet this course could seldom be pursued as the feasibility of an actual partition could not generally be denied without a visible examination of the lands by the court, referee or commissioners, and for the further reason that as the possibility of an actual partition might often greatly depend upon the rights of the several parties, as determined on the trial, the question could not be intelligently, considered until such determination had been made.
    In all cases (except, perhaps, when the trial is by the court, which finally orders the interlocutory judgment), a reference must be had to ascertain whether actual admeasurement or partition can be made, after a decision of the referee as to the rights of the parties under the issue and before the judgment declaring such rights is entered.
    In order to authorize a sale of the property it must be shown that a distinct parcel of the property cannot be admeasured and laid off to the plaintiff, as tenant in dower, “without material injury to the interests of the parties.” It is not sufficient to show that one of the parties would be injured by an actual partition.
    Motion by the defendant for new trial after the entry of an interlocutory judgment under section 1001 of the Code of Civil Procedure, and also an appeal by the defendant from an order refusing to appoint a referee to admeasure dower to plaintiff in the lands described in the complaint.
    The action was brought by plaintiff, as widow of one Patrick O’Dougherty, deceased, to recover dower in land which he had owned during coverture. This land had been sold upon execution sale against Patrick during his lifetime, and had been purchased by and was in the possession of defendant. After 'the commencement of the action the plaintiff duly made and filed her consent, in writing, to accept a gross sum in satisfaction of her dower right, under the provisions of section 1617 of the Code of Civil Procedure. The defendant’s answer admitted plaintiff’s right to recover dower, but it sought to counter-claim, against plaintiff’s dower interest, various mortgages and judgments, which the defendant alleged it held against plaintiff. The cause was referred to a referee, to hear, try and determine the same, and all the issues therein. Upon the trial the referee, under the objection of defendant, received evidence that the property was so situated that a distinct parcel could not be admeasured and laid off to plaintiff, as tenant in dower, without in jury to her rights, and upon this testimony so found in his report. The referee directed that before entry of an interlocutory judgment a reference be had, under section 1621 of the Code, to ascertain whether any person not a party had a lien upon the property, and upon the coming in of such report that an interlocutory judgment of sale be entered. The defendant thereupon applied at Special Term for the appointment of a referee to admeasure plaintiff’s dower, which application was denied. A reference was had, in accordance with the decision of the referee, to ascertain whether any person, not a party, had a lien on the premises, and upon the coming in of the referee’s report it was confirmed, and interlocutory judgment was entered. The defendant appealed from the order denying the application for the appointment of a referee to admeasure plaintiff’s dower, and makes a motion for a new trial at the General Term, under section 1001 of the Code of Civil Procedure.

      Elon E. Brown, for the appellant.

      O'Brien <& Emerson, for the respondent.
   Bo ARUM AN, J. I •

This action was brought to recover dower in certain real estate claimed to be owned by and in the possession of the defendant, Defenses were interposed and a reference had to hear, try and determine the same. In the pleadings there is no issue joined as to the practicability of an actual admeasurement of a specific portion of the land to plaintiff for her dower. The only allusion thereto is in the alternative relief demanded in plaintiff’s prayer for judgment.

We, therefore, conclude it was not a matter to be tried under the order of reference, and that the evidence offered and admitted should have been rejected. Such error, however, need not involve an entire new trial. The interlocutory judgment must be reversed, and the fourth finding of law be stricken from the report, as unauthorized and unwarranted. The defendant’s exception to this third conclusion of law must be sustained.

It follows, as a consequence of this decision, that the court has not been legally shown “ that a distinct parcel cannot be admeasured and laid off,” as is required by section 1619 of the Code, before it may, by judgment, direct the property to be sold at public sale. Undoubtedly, in case of a trial by the court, the question of actual admeasurement of dower could be investigated and decided, so that the rights of the parties and the necessity of a sale and the interlocutory judgment could all be determined on a single hearing. The course we apprehend could not often be practical, since the feasibility of an actual partition could not generally be denied without a visible examination of the lands by the court, referee or commissioners. Indeed the possibility of an actual partition might often greatly depend upon the rights of the several parties as decided by the referee on the trial, and until such rights were so determined the question could not be intelligently considered. ¥e think, therefore, that the practice requires in all cases, except, perhaps, where the trial is by the court which finally orders the interlocutory judgment, a reference to ascertain whether actual admeasurement or partition can be made, after a decision of the .referee as to the rights of the parties under the issue, and before the judgment declaring such rights.

The sixth finding of fact does not conform to the requirements of section 1619, in that it does not find and decide whether a distinct parcel of the property can be admeasured and laid off to the plaintiff, as tenant in dower, without material injury to the interests of the parties? It is not sufficient that one of the parties would be injured by an actual partition. The rights of all parties are to be looked after and protected, and if a division of the land cannot be made without material injury to the interests of all the parties, a sale may be had. Here there is an especial reason why a sale should not be ordered if it can reasonably and fairly be avoided. The plaintiff has a very slight interest in a property of very con siderable value given to it by improvements made by defendant, in which plaintiff has no dowable interest. The defendant has considerable claims by way of judgment against the plaintiff, which should be paid out of plaintiff’s interest in these lands or otherwise. The plaintiff is insolvent. A sale might result in a serious injury to a manufacturing industry and to defendant’s stockholders, without corresponding advantage to plaintiff. The defendant, therefore, has a right to demand that its interests, as well as plaintiff’s, should be considered before a sale is ordered of the lands in question.

We conclude that the interlocutory judgment should be reversed, and that the Special Term proceed to appoint a referee or commissioner to ascertain whether plaintiff’s dower can be admeasured by actual partition. The defendant should have costs of this appeal to be paid by plaintiff.

For the same reasons it follows that the order denying defendant’s motion for the appointment of a referee or commissioner to admeasure plaintiff’s dower, or to ascertain whether it could be admeasured, should be reversed and said motion granted, and the eourt at, Special Term, will appoint such referee or commissioner under these decisions, upon due and proper notice. No costs are allowed upon the appeal from the order.

Hardin, P. J., and Follett, J., concurred.

Interlocutory judgment reversed, and Special Term directed to proceed and appoint a referee or commissioners, to ascertain whether plaintiff’s dower can be admeasured by actual partition. Costs of appeal allowed defendant, to be paid by plaintiff. Also, order reversed and motion granted, and the Special Term directed to appoint a referee or commissioners, upon proper notice and application therefor, without costs on appeal from the order.


author: Follett, J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. ELIZA MILLER, Appellant, v. ALLEN COOPER, Sheriff of the County of Chemung, Respondent.

      Charter of the city of Elmira — 1875, chap. 870 — over what offenses exclusive jurisdic, tion is conferred on the recorder.

    Under the charter of the city of Elmira (chap. 370 of 1875) the recorder has exclusive jurisdiction to try one accused of keeping a disorderly house, sub. ject to the right of such person to apply for a certificate directing that she be prosecuted by indictment, pursuant to sections 57 and 58 of the Code of Criminal Procedure.

      Appeal from an order remanding the relator to the custody of the sheriff, after a hearing upon the return to a writ of habeas corpus.

    March 12, 1886, the recorder of the city of Elmira issued a warrant charging the relator with “ keeping a disorderly house,” which is a misdemeanor, “ punishable by imprisonment in a penitentiary, or county jail, for not more than one year, or by a fine of not more than five hundred dollars, or by both.” (PenaLCode, § 15.) March 13, 1886, she was arrested by virtue of the warrant and taken before the recorder, whereupon she pleaded not guilty, waived an examination and demanded a trial by jury after indictment, and offered bail, which was refused upon the ground that the recorder had exclusive jurisdiction to try the defendant. "Thereupon the recorder adjourned the trial until March 19, 18S6, and in default of bail to appear for trial she was committed to jail.
    The relator obtained a writ of habeas corpus from the county judge and sought to be discharged, upon the ground that she had a right to give bail for her appearance to answer to an indictment, and, therefore, was illegally imprisoned. The county judge held that the recorder had exclusive jurisdiction to try the relator for the offense charged, and remanded her to the custody of the sheriff, from which order the relator appeals.

      Cha/t'les A. Collin, for the relator, appellant.

      Mdga/r Denton, district attorney, for the respondent.
   Follett, J.:

The recorder of the city of Elmira is authorized to hold Courts of Special Sessions and exercise the powers and jurisdiction of such courts, as regulated by statute. (Laws 1875, § 101, chap. 370 ; Elmira City Charter; Code Grim. Pro., § 63.) The offense with which defendant is charged not being enumerated in section 56 of the Code of Criminal Procedure, the recorder has not exclusive jurisdiction under that section. Subdivision 33 of that section does not bring the case within the exclusive jurisdiction of the recorder, unless exclusive jurisdiction is given him by some special statute or municipal ordinance authorized by statute. Exclusive jurisdiction of the offense charged is not claimed under any municipal ordinance, but is claimed under the city charter, and especially under section 104 thereof.

Section 4 of the charter provides that there shall be three j’ustices of the peace within the city, and section 44 provides:

“ § 44. The justices of the peace of the said city shall have and exercise all the powers, authority and jurisdiction, and discharge all the duties, and be entitled to the fees and compensation of justices of the peace of the several towns in this State, except as modified by this act.”
Section 104 provides: § 104. The recorder of the city shall, except in case of his absence therefrom, or inability, from sickness or other cause, to act, have jurisdiction exclusive of any justice of the peace or other officer therein, except judges of courts of record, to issue all criminal process, and to institute all criminal proceedings, which a single justice or two justices of the peace in towns are empowered or directed by law to issue and institute; to hear and entertain all complaints and conduct all examinations in criminal cases and proceedings; to hold courts of Special Sessions, with all the powers and jurisdiction of such courts as regulated by statute; to try, convict and sentence all persons who may be guilty of any offenses which are or may be triable by Courts of Special Sessions, and to commit for trial all persons who shall be charged or be guilty of any offense not triable in said court. The Court of Special Sessions, held by said recorder, shall have jurisdiction of and power to hear and determine all charges for every misdemeanor committed or charged to have been committed within said city.” * * *
“ Said recorder shall have the power to let to bail persons charged with crime before him in all cases of felony where the imprisonment in the State prison, on conviction, cannot exceed five years.” * * *
“ The said recorder shall have and possess the exclusive jurisdiction of all the offenses within said city specified in this section, except as hereinbefore stated.”

The sentence last quoted is very broad. No specific offenses are mentioned in the section, but offenses are classified as felonies and misdemeanors. In felonies the recorder is given power to take examinations, and let to bail when the punishment, on conviction, cannot exceed imprisonment for five years in a State prison, which are the only offenses excepted from the exclusive jurisdiction of the recorder.

Section 106 of the charter provides: “ In case of sickness, absence from the city, disability or inability to act, of the said recorder, his powers and duties are hereby conferred and imposed upon either of the several justices of the peace of said city so designated, except that such justices shall not have jurisdiction to try any person for any offense not heretofore triable by Courts of Special Sessions.”

When 4 this charter was passed, the policy of conferring exclusive jurisdiction upon Courts of Special Sessions, to try specified misdemeanants, had been established. (Laws 1857, chap. 769; Laws 1866, chap. 467; Laws 1S72, chap. 530.) The sentence in the section last quoted, “ except that such justices shall not have jurisdiction to try any person for any offense not heretofore triable by Courts of Special Sessions,” conveys the idea of a broader jurisdiction in the Court of Special Sessions, when presided over by the recorder, than when presided over by a justice of the peace, and if such was not the legislative intent, it is difficult to see why these words of limitation were inserted.

The language of the charter of the city of Elmira is much broader than the language in the charter of the village of Hornellsville, and the case of The People v. McDonald (26 Hun, 156) does not support the contention of the relator. We are of the opinion that the recorder had exclusive jurisdiction to try the relator for the offense charged, subject to her right to apply for a certificate, directing that she be prosecuted by indictment, pursuant to sections 57 and 58 of the' Code of Criminal Procedure.

The order of the county judge is affirmed.

Hardin, P. J., and Poardman, J., concurred.

Order affirmed.


text:
    CHARLES E. HUBBELL, as Receiver, etc., of the Syracuse Iron Works, Respondent, v. THE MERCHANTS’ NATIONAL BANK OF SYRACUSE, Appellant.

      Practica — the grantor must be made a party to an action to set aside a conveyance as fraudulent.

    This action was brought by the plaintiff, who had been appointed a receiver of the Syracuse Iron Works in a creditors’ action, brought under section 1784 of the Code of Civil Procedure, to aet aside as fraudulent a judgment in favor of the defendant, entered upon an offer made by the Syracuse Iron Company, in an action brought against it by the defendant, and to recover the value of the chattels sold under an execution issued on the said judgment.

      Held, that a demurrer, interposed upon the ground that there was a defect of parties defendant, because of the non-joinder of the Syracuse Iron Works, should be sustained.
    The rule is settled that in actions to set aside fraudulent conveyances, the alleged fraudulent grantor is a necessary party defendant.

      Miller v. Hall (8 J. & S., 262; affirmed, 70 N. Y., 250) followed; The Attorney General v. The Gua/rdian Mutual Life Insurance Company (77 N. Y., 272) distinguished.
    Appeal from an interlocutory judgment, entered on an order overruling a demurrer to the complaint interposed by the defendant.

      Henry A. Maynard, for the respondent.

      Forbes, Brown & Tracy, for the appellant.
   Follett, J.:

October 7, 1884, the Merchants’ National Bank sued the Syracuse Iron Works on its promissory notes. On the same day the Syracuse Iron Works appeared in the action and made an offer of judgment, which was accepted, and a judgment entered pursuant to section 738 of the Code of Civil Procedure. On the same day (October seventh) an execution was issued on the judgment to the sheriff of Onondaga county, who, on the same day, levied on chattels of the Syracuse Iron Works, and October 14,1884, sold them under the execution. October 7, 1884, the plaintiff was appointed, and October 8, 1884, qualified as temporary receiver of the Syracuse Iron Works, in a creditors’ action brought under section 1784 of the Code of Civil Procedure, and December 9, 1884. he was appointed permanent receiver by a final judgment in the creditors’ action,' pursuant to section 1788 of the Code of Civil Procedure.

The receiver brings this action to set aside, as fraudulent, the judgment of the Merchants National Bank and to recover from it the value of the chattels sold under the execution. The defendant demurred, upon the ground that there was a defect of parties defendant, because of the non-joinder of the Syracuse Iron Works.

The case of Miller v. Hall (8 J. & S., 262; affirmed, 70 N. Y., 250), reviews the conflicting decisions, and settles the rule that in actions to set aside fraudulent conveyances, the alleged fraudulent grantor is a necessary party defendant.

The Attorney General v. The Guardian Mutual Life Insurance Company (77 N. Y., 272), which is relied upon, is not in point. That case was under a statute which authorized the Supreme Court to dissolve the corporation, and, it having been done, the corporation was no longer in existence and could not have been made a party. The case at bar was not brought under sections 1785 and 1786 of the Code of Civil Procedure, and the Syracuse IronWorks has not been dissolved, but is án existing corporation, with all of the legal rights of a corporation, and is a necessary party defendant in this action, brought to set aside a judgment and a transfer of its property had by its consent.

The interlocutory judgment must be reversed with costs, and the demurrer sustained, with leave to the plaintiff to plead anew within twenty days after notice of the entry of judgment, upon payment of the costs.

Hardin, P. J., and Boardman, J., concurred.

Interlocutory judgment reversed, and the demurrer sustained with leave to plaintiff to amend upon payment of costs of the demurrer and of the appeal within twenty days.


author: Foi LETT, J.:

text:
    HALLAM ELDRIDGE, Appellant, v. THE CITY OF BINGHAMTON, Respondent.

      Eminent domain — right of the State to acquire the fee of lands to be used for a canal — of its right to authorize such lands to be used by a city as a public street — 1 B. S., 325, 226, secs. 46, 52 — 1878, chap. 391.
    In 1838 the State of New York, acting under the authority of chapter 82 of 1833 and the general laws of the State, through its canal authorities, took possession of certain lands in Broome county for the purposes of the Chenango canal,-the usual regular steps being taken to obtain the right to the land, under and by virtue of a condemnation and appraisal by the canal appraisers, as provided in sections 46 and 52 of 1 Revised Statutes, 325, 226. The appraisers, in view of the advantages and benefits likely to accrue t.o the residue of the property by reason of the canal facilities, allowed no money compensation for the land taken.
    By chapter 391 of 1878, the right to take possession of said canal lands for the purpose of laying out a street was given to the city cf Binghamton by the State, and under and by virtue of the authority conferred by the said act and a resolution of the common council, the said city thereafter entered upon and took and still retains possession of the same. Upon the trial of this action, brought by the plaintiff, who, as heir or assignee, had acquired all the rights of the persons in whom the title to those lands was vested at the time of their appropriation by the State, to recover the possession thereof;

      Held, that the action could not be maintained.
    That the acts, under which the State acquired an estate in fee simple to the lands, were constitutional and valid, and that the city acquired the right to enter upon and use the same as a public street, by the act of 1878.
    Appeal from a judgment in favor of the defendant, entered upon a verdict directed by the court at the Broome Circuit, and from an order denying a motion for a new trial, made upon the minutes of the justice before whom the action was tried.
    This State in 1838, under an act of the legislature passed February 23,1833 (chap. 32), took possession of certain lands for the use and purposes of a waterway or canal, designated in the act as the Chenango canal. . The title to a portion of these lands was vested in the grantors of appellant, who, as heir or assignee, has acquired all the rights which his grantors held at the time of the appropriation of the land by the State, subject only to the rights of the people of the State to a use of the same for the Chenango canal. The canal appraisers estimated the lands and other property taken to be worth $2,500, but considering that the advantages likely to accrue to the residue of the property by reason of the canal facilities to be afforded to them thereby were of superior value, allowed no other compensation for the land taken. The appellant’s grantors, within the time required, filed their claim for damages in ‘pursuance of the statute under which the appraisers acted. The State entered upon the lands, took possession and constructed and operated the canal, retaining possession until 1878, when, by an act of the legislature (chap. 391), the State released these premises to the city of Binghamton, together with the remainder of the Chenango canal lying within the limits of the city of Binghamton, and authorized the city to take possession of and use the same for a public street, to be known as State street, in said city ; providing, however, in said act, that “ nothing in this act contained shall affect in any way the legal rights of individuals.”
    The respondent, by virtue of said act and a resolution of its common council, entered upon said lands and now retains possession of the same, not having in any way exercised the right of eminent domain, having appointed no commissioners and having given no notice to property owners, as provided by general statute or the city charter, but simply declaring by resolution that a street existed, and making a map thereof.

      George Whitney, for the appellant.

      A. D. Wales, for the respondent.
   Foi LETT, J.:

Seo. 46. “ When any lands, waters or streams, appropriated by the canal commissioners to the use of the public, shall not be given or granted to the State, it shall be the duty of the appraisers to make a just and equitable estimate and appraisement of the damages and benefits resulting to the persons interested in the premises so appropriated, from the construction of the work, for the purpose of making which such premises shall have been taken.” (1 R. S., 225.)

Seo. 52. “The fee simple of all premises so appropriated, in relation to which such estimate and appraisement shall have been made and recorded, shall be vested in the people of this State.” (1 R. S., 226.)

It is conceded that an estimate and appraisement of the damages for taking the lands sought to be recovered in this action, were made and recorded in the year 1838. Statutes authorizing the benefits inuring to the lands remaining, and adjacent to the lands taken, to be estimated and the value of such benefits set off against the value of the lands taken, have been held constitutional. (Livingston v. The Mayor of New York, 8 Wend., 85; Betts v. The City of Williamsburg, 15 Barb., 255; Long Island B. R. Co. v. Bennett, 10 Hun, 91; Mills’ Em. Domain, § 151, and cases there cited.)

It has been held that sections 48 and 49 (1 R. S., 226), providing that the State acquires the fee simple of lands appropriated without making any compensation, in case the owner fails to file his claim within one year, are constitutional. (Birdsall v. Cary, 66 How. Pr., 358, and cases there cited.) If the sections last cited are constitutional it is difficult to see why sections 46 and 52 are unconstitutional. The lands taken for the Erie canal were appropriated under a like statute (sec. 3, chap. 262, Laws 1817), and so were the lands for all of the canals of this State. This court is bound by the cases cited, and only the court of last resort can overthrow the multitude of titles resting on the statutes cited and similar statutes.

For forty years the State was in possession of the land in question, claiming to own it in fee simple, and thereby it acquired title, (Birdsall v. Cary, supra.)

The judgment is affirmed, with costs.

Hardin, P. J., and Boardman, J., concurred.

Judgment affirmed, with costs.


author: Boardman, J. ;

text:
    HENRY O. ELY, Appellant, v. WILLIAM E. TAYLOR, as Administrator, etc., of HATTIE S. PHELPS, Deceased, Respondent.

      Refusal of an executor or administrator to consent 10 refer a claim — when the claimant is entitled to recover costs — effect of the cei'tificate of the judge or referee as to the refusal to refer— Code of Civil Procedure, sec. 1886.
    Appeal from an order made at the Otsego Special Term and entered in Broome county, denying the plaintiff’s motion for costs and an extra allowance.
    The court at General Term said: “ This is an appeal from an order refusing plaintiff costs and an extra allowance. The plaintiff presented to defendant a bill for services rendered to or for defendant’s intestate. The claim was rejected. The referee certifies that •the defendant refused to refer the claim under the statute. He also shows the concession of the defendant that he refused to refer the claim in pursuance of plaintiff’s notice, whereby plaintiff offered to refer the claim under the statute to certain persons named, ‘ or any other suitable or proper person, as referee, to be approved by the surrogate.’ Besides this evidence, concession and certificate furnished by the referee, there is evidence that B. S. Eichards, the attorney for the defendant in this action, refused to refer the claim, and advised plaintiff’s attorney that he might as well sue it at once. Afterwards the action was commenced, and again the defendant, through his counsel, resisted a reference which was, however, granted.

      “ Section 1836 of the Code provides that where ‘ the defendant refused to refer the claim as prescribed by law, the court may award costs against the executor or administrator, to be collected either out of his individual property, or out of the property of the decedent, as the court directs, having reference to the facts which appeared upon the trial. Where the action is brought in the Supreme Court * * * the facts must be certified by the judge or referee, before whom the trial took place.’ We think the certificate of the referee ‘ that the defendant, before the commencement of the action, refused to refer the claim under the statute ’ is prima facie conclusive upon the court, and is a fact proper to be certified. Certainly no person can better determine that question, and it is far wiser to allow such determination to control than to resort to affidavits of attorneys and interested parties. Often the merits of the controversy are decided and the costs alone are at stake. Of what use is a certificate if it decides nothing ? Why should a judge or referee be required to certify what the fact is and then allow him to be contradicted or impeached by loose affidavits ? When a case is charged to have been unreasonably defended, the facts which appear upon the trial may properly., be referred to, and in such cases if the certificate does not state all the facts, fully and fairly, they may be shown by affidavits. But where the sole fact controlling the grant of costs against the defendant depends upon his refusal to refer, the certificate of the referee upon a concession by defendant, on trial, ought to be conclusive. Whether the costs should be charged against the defendant, personally, or against the estate he represents, may depend upon other facts appearing on the trial, which may be shown by affidavits, if necessary. The refusal to refer is a fact, and uot a conclusion of law. The evidence of such fact need not be certified.
    “The plaintiff must apply to the court for an allowance of costs before it can be included in the judgment. Such was the law before the Code, and it is so still. The certificate of the referee, it would seem, must be presented showing the necessary facts. The essential fact in the present case is the refusal by defendant to refer. If he did refuse the plaintiff is entitled to costs. If it be conceded that the certificate is not conclusive, and that other evidence upon that question is competent, we still think the refusal of the defendant to refer is abundantly established.”

      Alex. Gumming, for the appellant.

      Jerry McGuire, for the respondent.
   Opinion by

Boardman, J. ;

Hardin, P. J., and Follett, J., concurred.

Order of Special Term reversed and plaintiff’s motion for costs and disbursements granted, with ten dollars costs and disbursements of this appeal.


author: Boaedman, J.;

text:
    JOHN W. HOLLENBACK, Appellant, v. C. J. KNAPP, Respondent.

      Offer of judgment on appeal from a judgment in a Justice’s Oou/rt — right of the party accepting it to costs — Code of Ginil Procedure, sec. 8070.
    Appeal from an order of the Onondaga County Court.
    This action was commenced in a Justice’s Court, where the defendant succeeded and had judgment against the plaintiff for costs, fifteen dollars and thirty-nine cents. The plaintiff claimed to recover twenty-seven dollars and fifty cents, with interest from September 1, 1885. The plaintiff appealed to the County Court from the justice’s judgment, and paid said fifteen dollars and thirty-nine cents costs and two dollars for return. May 12, 1886, and after such appeal had been taken, the defendant served upon the plaintiff an offer to allow judgment in the County Court in said action in favor of plaintiff and against himself, defendant, for twenty-eight dollars and sixty-five cents. This offer was duly accepted by a notice without any date; at the same time notice was given by plaintiff that judgment would be entered on the offer and acceptance and the costs taxed at seventeen dollars and thirty-nine cents, being the amount of costs and fees paid to the justice on taking the appeal. This notice was accompanied by an affidavit showing the facts relating to the Justice’s Court and judgment, and the amount of costs and fees so paid to the justice. The defendant thereupon obtained, on an affidavit, an order to show cause before the County Court why the pretended acceptance of offer of judgment * * * should not be set aside, and why the proceedings of plaintiff and appellant should not be stayed until the cause can be regularly reached and tried in its order on the calendar, or, if the court should deem such acceptance of judgment regular, why appellant should not be compelled to enter judgment against the respondent for the sum. of twenty-eight dollars and sixty-five cents, and for such other and further relief as may be just and proper, with costs.”

      On the return of such order to show cause the County Court ordered the appellant, .within ten days, to enter judgment against the defendant for twenty-eight dollars and sixty-hve cents, and stayed the plaintiffs proceedings to tax his costs before the county clerk, and gave defendant ten dollars costs.
    The court at General Term said: “We think the practice of the defendant’s attorney was incorrect, so far as he sought to stay the taxing of plaintiffs costs, and ordered the entry of judgment for the twenty-eight dollars and sixty-five cents only. When the plaintiff should have taxed his costs and included them in the judgment, the defendant could move the County Court to strike them out as illegally or improperly inserted under the offer and acceptance. The relief granted was, therefore, unwarranted; and the other relief sought by defendant was, in effect, denied. But upon the merits of the case we think the plaintiff was entitled to recover the seventeen dollars and thirty-nine cents which he had to pay to perfect his appeal. By section 3070 the offer of judgment must be ‘ for a specified sum.’ On acceptance the clerk ‘ must enter judgment accordingly.’ The party refusing to accept ‘ shall be liable for costs of the appeal, unless the recovery shall be more favorable to him than the sum refused.’ The costs and disbursements are a mere incident to the recovery. The debt or damages are the recovery and not the costs, which are uncertain, indefinite and growing as the case goes on. The costs and disbursements have nothing to do with the offer of judgment, and ordinarily follow the recovery as an incident thereto. If the plaintiff had not accepted the offer of judgment made by the defendant, he would necessarily have failed in obtaining a more favorable recovery, because the offer was for the whole amount of his claim, and so he would have been punished with the costs of the appeal. Can it be supposed that he is to be punished by losing the costs and fees paid the justice because he accepts of the total amount of his claim when offered ? That would be highly unjust, and we do not believe it is the meaning or intent of the Code. It would be a reproach to the law to permit such injustice if it can be fairly avoided. Prior to the amendment of 1885 the plaintiff’s position was clearly correct, and though the language is altered and less distinct we do not believe any substantial change in this respect was contemplated.

      “ The order of the County Court should be reversed, with ten dollars costs and disbursements of this appeal to plaintiff against the defendant, and the motion of the defendant denied, with ten dollars costs.”

      M. N. Tompkins, for the appellant.

      William M. Ross, for the respondent.
   Opinion by

Boaedman, J.;

Haedin, J?. J., and Follett, J., concurred.

Order of the County Court of Onondaga county reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.


author: Hardin, P. J.;

text:
    LORETTA HART, Appellant, v. HEALON HAZARD, Respondent.

      Evidence — when a reduction in the rent reserved by a lease under seal can be provea by unsealed indorsements thereon.

    Appeal from a judgment, entered upon the report of a referee ' in Oswego county, dismissing the plaintiff’s complaint. The action was brought to recover the amount due on a promissory note, and also to recover the rent of a farm.
    On January 22, 1877, the plaintiff’s assignor and the defendant executed a sealed lease by which, in consideration of $660, rent to be paid, it was agreed that the defendant should occupy a farm belonging to the assignor of the plaintiff. The lease provided, among other things, that “ the terms of this lease shall be for two, three or five years, from the 1st day of April, 1877, as the parties may elect.”

    The defendant went into possession, and occupied for one year under the lease. No question is made here as to his liability to pay $660 for that year. The lessor and lessee on January 4, 1878, executed upon the lease the following instrument, viz.:
    “Phcenix, January 4, 1878.
    “For value received in continuance of this farm lease (and fulfillment of same), I do hereby indorse on the same one hundred dollars, to apply on the two first installments (fifty on each) .that shall become due in 1878.
    “(Signed.) “A. P. HART,
    “HEALON HAZARD.”
    Following that is the indorsement on the lease, viz.: ' “ The reduction on lease to be the same for year 1879 as in 1878.” Signed, A. P. H.
    Following that is another indorsement, viz.: “ The above reduction on lease to be the same for year 1880 as in 1878 and 1879.”
    Following that is following: “ The above reduction to apply on year 1881.”
    In the lease the owner Hart reserved the right to sell said farm, and to terminate the lease on the first day of April of any year “ for this reason.” The referee allowed the defendant to prove that the several indorsements were made by and with the consent of the lessor, and to read them in evidence, and held that the rent was “ reduced ” to $560 per year, instead of being $660 per year.
    The court at General Term said: “ The question presented here is whether such rulings were erroneous, as plaintiff duly excepted to them. There was parol evidence tending to show that all of the several indorsements were made for the purpose of reducing the rent to $560, in each of the several years after the first year.
    “ It must be borne in mind that the lease did not fix an absolute term. The words of the lease gives the lessor a right to sell the farm, and terminate the lease each year for that reason, and it also provided that the terms of the lease in other respects should be for ‘ two, three or five years from the 1st of April, 1877, as the parties may elect. ’
    “We are inclined to the opinion that the instruments indorsed must be regarded as renewals, each respective year of the terms of the lease, with the modification named, and that the parties in making their election for a continuance of lease incorporated into the indorsements the terms of the lease, as thus modified. {Deans v. Thomson, 5 East., 189; Latbimore v. Harsen, 14 John., 330; Van Hagen v. Van Rensselaer, 18 id., 420.)
    “ In Nicoll v. Burlce (78 N. Y., 585), Miller, J., says: c The receipts showed, and there was a verbal agreement, that the rent for the future should be reduced two hundred dollars, and this was a modification of an executory parol contract, which was valid and lawful.’ ‘ Both parties acted under this arrangement, and it was executed and carried into effect. The defendant occupied, and the plaintiff received the rent, according to the altered terms of the contract. It is no answer to say that the receipt in full was not conclusive, or that the rent was not promptly paid, for the contract was executed.’
    “ In the case in hand it appears, by evidence, that Childs, the assignor of Hart, settled and adjusted with defendant under the assumption that the rent was five hundred and sixty dollars per year, after the first year. The referee did not err in admitting the indorsements upon the lease and giving effect to them. He has found, as a question of fact, that the defendant had fully paid the rent and is not indebted. There was evidence warranting the finding. The appellant cites and relies upon Coe v. Hobby (72' N. Y., 148). There the agreement was verbal and executory, and Judge Allen says : ‘ If the evidence is examined it will be seen that there was no agreement by parol upon any consideration to reduce the rent proved.’ That case differs from the one here, as the parties had not fixed upon absolute terms. The lessor had reserved the right to terminate at the end of each year, and the parties had'an option as to whether the lease ‘ shall be for two, three or five years from the 1st of April, 1877, as the parties may elect.’ ”

      Avery ds Merry, for the appellant.

      J. R. Shea, for the respondent.
   Opinion by

Hardin, P. J.;

Boardman and Follett, JJ., concurred.

Judgment affirmed, with costs.


author: Landon, J.:

text:
    DAVID IRELAND, Executor, etc., of JENNIE ANGLE, Deceased, Respondent, v. MIRA A. IRELAND, an Infant by Guardian, etc., Appellant.

      Change in the disposition of money to be received on the death of a member of a lodge — the transfer must be made in the form prescribed by the by-laws of the lodge.

    Upon the application of Delbert Ireland, a certificate of membership in the Grand Lodge of the Ancient Order of United Workingmen was issued to him, which entitled him to participate in the beneficiary fund of the order to the amount of §3,000, which sum was, at his death, to “be paid to JeDnie Ireland, sister, * * * upon the express condition that Ireland should, in every particular while a member of the order, comply with all the rules and requirements thereof.” One of the rules of the order, which was printed upon the back of the certificate, provided that any member desiring to make a new direction as to its payment might do so by authorizing such change in the form prescribed and printed upon the back of the certificate, to be attested by the recorder of the lodge and reported to the grand recorder, paying fifty cents and surrendering the old certificate and taking a new one.
    Ireland was unmarried when he procured the certificate, but subsequently married the defendant. On Sunday, the 21st of June, 1885, being under apprehension of death from existing illness, he sent for a friend, Mr. Wing, delivered to him the certificate and told him that he wanted it so changed that his wife should have the benefit of it; that he wanted Wing to have it changed. Wing proposed to go immediately with the certificate to the recorder of the lodge, who resided in the village, and have the change made then, but Ireland ■objected to having it done on Sunday and told Wing to have it done the next day. Ireland’s wife was present at tie time. Wing took the certificate and on the following morning sought to find the recorder of the lodge, but did not succeed in doing so. Ireland died that morning before any further steps had been taken to change the beneficiary.

      Held, that the sister was the owner of the certificate and was entitled to receive the amount payable thereunder.
    Appeal from a judgment in favor of the plaintiff, entered upon the trial of this action by the court without a jury.

      J. W. Crane, for the appellant

      J. W. Houghton, for the respondent.
   Landon, J.:

Delbert Ireland was a master-workman of the “ Grand Lodge, Ancient Order of United Workingmen of the State of New York.” He held its certificate of membership, wherein it was certified that he “is entitled to all the rights and privileges of membership, * * * and to participate in the beneficiary fund of the order to the amount of two thousand dollars, which sum shall, at his death, be paid to Jennie Ireland, sister, * * * issued upon the express condition that said Delbert Ireland shall, in every particular, while a member of said order, comply with all the rules and requirements thereof.”

Upon his application for membership he had so agreed. One of the rules of the order, which was printed upon the back of the certificate, prescribed that any member desiring to make a new direction as to its payment might do so, by authorizing such change in the form prescribed and printed upon the back of the certificate, to be attested by the recorder of the lodge and reported to the grand recorder, paying fifty cents, surrendering the old certificate and taking a new one. He was unmarried when he procured this certificate, and subsequently, married thq defendant. On Sunday the 21st of June, 1885, being under apprehension of death from his existing illness, he sent for his friend, Mr. Wing, delivered to him the certificate and told him that he wanted it so changed that his wife should have the benefit of it; that he wanted Wing to have it changed. Wing proposed to go immediately with the certificate to the recorder of the lodge, resident in the village, and have the change made then; but Ireland objected to having it done on Sunday, and told Wing to have it done the'next day. Ireland’s wife was present at the time. Wing took the certificate, and on the following morning undertook to find the recorder of the lodge, but did not succeed, and Ireland died that morning before any further steps had been taken to change the beneficiary. Mr. Ireland’s sister sued the insurance association. It thereupon paid the money into court and procured the wife of Mr. Ireland to be substituted as defendant.

The insurance association was thus allowed to drop out of the contest, upon the theory that it was ready to pay the rightful claimant. Its payment of the money does not in any way better or prejudice the legal position of either party against the other. The party that succeeds must make a case that would have entitled her to succeed against the association. (Vosburgh v. Huntington, 15 Abb., 254; McKay v. Draper, 27 N. Y, 260; Ballou v. Gile, 50 Wis., 619.)

It is claimed that this was an executed gift of the certificate to the wife, or to Mr. Wing for her. We do not think so. In order that a gift may be perfected by delivery, the subject-matter of the gift must be capable of transfer by delivery. What was needful to be done here, and what Mr. Ireland manifestly understood was needful, was to revoke the existing designation of the sister, and then make the designation of the wife. How this was to be accomplished, the rules of the association instructed Mr. Ireland, and he had agreed to observe them. He sought to observe them. On the face of the certificate the sister remains the designated beneficiary. There was one way in which she could have been divested of her expectant interest. She insists that since that way has not been observed she has not been divested.

It is plain that the association, bound by its contract to pay her, would have no answer to her demand. (Story v. Williamsburgh M. M. B. Assn., 95 N. Y., 474; Hellenberg v. Dist. No. 1, 94 id., 580.) In the case last cited the contract for insurance was that the lodge should pay such person as the insured “ shall formally designate to^his lodge.” He failed to designate anybody in the form prescribed by the contract, but did designate his brother in his will. The court held that because the designation by will had not been brought to the notice of the defendant, in the lifetime of tlie testator, tlie designation was not such as the contract called for, and, therefore, the defendant was not liable to pay. We are cited by the counsel for the wife to the case of Maderia v. Maderia (5 Eastern Rep., 484) and Scott v. Provident Mutual Relief Association (Id. 749.)

In the Maderia case the policy was of the ordinary kind, taken by the insured, payable upon death to his heirs or legal representatives. He gave it to his wife, whom he married after obtaining it. The questions in the case were, whether he could pass title in it to his wife by gift, and whether the circumstances proved a gift. The court held with the wife upon both questions. We hold in this State.that such a policy will pass by assignment, and, therefore, why not by gift, in the absence of any opposing contract, charter or statutory restrictions, especially if the donee has an insurable interest. (St. John v. Am. M. Ins. Co., 13 N. Y., 31; Cannon v. N. W. Mut. Life Ins. Co., 29 Hun, 470.)

The Scott case was one where a certificate'of membership was reformed after the death of the insured, by inserting the name of the beneficiary in the certificate. It had been omitted by inadvertence. Both the insured and the association understood, at the time of the application, that the name should be inserted without further direction. It was' the fault of the association that the name had not been inserted, and it certainly could take no advantage of that.

Wing was simply the agent of Ireland, to do for him what it was competent for him to do for himself. Wing was, it may be conceded, the trustee for the time being of the certificate, but only for the purpose of executing his agency respecting it. When Ireland died his agency ceased, and the title to the certificate vested in a new owner. We think the sister was that owner; that she could have maintained her action against the association, and that the wife could not.

The judgment should be affirmed, with costs.

Learned, P. L, and Bookes, J., concurred.

Judgment affirmed, with costs.


text:
    THE CITY OF COHOES, Appellant, v. JAMES MORRISON, Respondent.

      Eight of a city to recover, from one obstructing a street, a judgment it has been compelled to pay to one injured by reason of such obstruction — howfarr 'the defendant is bound by the former judgment when he was notified of the action — dedication of a street — an acceptance on the part of the city must be shown — the acceptance must be subject to aü existing burdens — duty of the city to heep its streets in repair.

    This action was brought by the city of Cohoes against the defendant to recover the amount of a judgment which the city, at the suit of one Sewell, had been compelled to pay him because of an injury done to Sewell by a wrongful obstruction of a street, which obstruction was, as between the city and Sewell, the act of the city. The defendant was notified of the action brought by Sewell, and was requested, but failed, to defend it. Upon the trial of this action the judgment-roll in the action against the city was given in evidence.

      Held, that to make that judgment conclusive evidence, as between the city and the defendant, the city was bound to prove that the defendant was the author of the act whereby Sewell was injured.
    That as an inspection of the judgment-roll in that action did not show that that fact had been in issue and determined in that action, and as it was not ghown by evidence aliunde that it was therein determined, it was necessary for the city to show by proof, outside of that judgment-roll, that the defendant was the author of the act injuring Sewell.
    In 1868 the defendant erected a tram-way over the bank of the Brie canal so as to leave a clear space of twelve feet between it and the surface of the canal bank beneath it. The canal bank belonged to the State, and the public were accustomed to travel over it, in passing from a city street, to reach a bridge built by the State across the canal. There was no evidence to show that the city had accepted this portion of the bank as a public street at the time the tram-way was erected. In 1873 the city assumed control and authority over the canal bank, graded and paved it, and in so doing raised its surface so as to reduce the twelve feet of clear space beneath the tram-way to ten feet. In 1874 Sewell, in attempting to drive a circus wagon under this tram-way, was crushed between it and the wagon, the evidence tending to show that if there had been twelve feet of clear space he would have escaped all injury.

      Held, that as it was only needful for Sewell to show that, as between himself and the city, the city was estopped by its action from denying that the street was a public street, the defendant was not precluded by the former judgment from contesting in this case the question whether the place in question was a public street as between himself and the city.
    That, assuming that the State had, at the time of the erection of the tram way, dedicated this portion of the bank to the use of the public as a street, yet before it could be held that a public street had been lawfully established an acceptance on the part of the city must be proved.

      That there was no evidence of an acceptance until the grade was changed, and as an acceptance must be of the dedication as made, the city’s acceptance, when made, was subject to the burden of the defendant’s tram-way which then passed over it.
    That the State could abandon its own claim, but could not without the defendant’s consent, or upon compensation or by proceedings in which he might have an opportunity to be heard, extinguish his, and that the city occupied no better position than the State.
    The city contended that the judgment in the former action was conclusive that it did not accept the street, subject to the obstruction, because if it had Sewell could not have recovered, as he was one of the public which had accepted the dedication and thus accepted its burden.

      Held, that the answer to this was that the city was bound to keep its public streets in a reasonably safe condition for travel, and should not invite the public to use them before it had placed them in that condition.
    Appeal from a judgment in favor of the defendant, entered upon an order made at the Albany Circuit dismissing the complaint.
    Prior to 1867 the defendant’s grantor was the owner of certain premises on the north side of White street, in the city of Cohoes. These premises were bounded on the south by White street, and on the west by the lands of the Erie canal, belonging to the State.
    In 1867 the State built a bridge across the Erie canal, at a point some 240 feet north of White street. To reach this bridge from White street it was necessary to pass over land which belonged to the State, lying between the lot of the defendant and the water of the Erie canal. In the year 1868 the firm of Morrison, Colwell & Paige, of which the defendant was a member, was using this lot for a coal yard, and in order to facilitate the unloading of coal from boats on the canal to their yard, they built a tram-way twelve feet above the road, over which the coal was wheeled and dumped into the coal yard.
    In the year 1873, the common council of the city of Cohoes passed a resolution to pave White street, from Mohawk street to the bridge, and grade it from Main street to the bridge. When the street was graded and paved it was raised, under the tram-way, two feet, and after the paving the tram-way was ten feet above he street.
    With the street and tram-way in this condition, one Leland Sewell attempted to drive a circus wagon along White street to the bridge. He was caught under the tram-way and seriously injured. In August, 1874, he sued the city of Cohoes and recovered, costs and all, some $10,000, Morrison having notice of such suit. The city, after taking the case to the Court of Appeals, and being compelled to pay the judgment, in September, 1880, about six years and one month after the accident, brought this action against Morrison to recover the damages and expense of the suit with Sewell, claiming that he is liable for the judgment, counsel fees and other expenses.

      Matthew Hale, for the appellant.

      Fsele Cowen, for the respondent.
   Landon, J.:

The city sued the defendant to recover the amount of a judgment which the city at the suit of one Sewell was compelled to pay him, because of the injury done to Sewell by a wrongful obstruction of the street, which obstruction was as between the city and Sewell, the act of the city. The city, upon the theory that this defendant was the author of the obstruction, gave the defendant notice of the action and requested him to defend it, but this he failed to do. The judgment-roll in the action between the city and Sewell was given in evidence in this action. To make that judgment conclusive evidence between the city and the defendant, the city must establish the fact that the defendant was the author of the act whereby Sewell was injured. (City of Rochester v. Montgomery, 72 N. Y., 65; Village of Port Jervis v. First National Bank, 96 N. Y., 556; The Mayor of Troy v. Troy and L. R. R. Co., 49 N. Y., 657; City of Chicago v. Robbins, 2 Black., 418, and 4 Wall., 657.) If that fact was in issue and determined in the action of Sewell v. The City, then the judgment in that action would establish it here. But it was not in issue in that action.. Sewell' only sought recovery from the city, and it was not needful for him to establish that the defendant was the primary author of the act which injured him. At least an inspection of the judgment-roll in that action fails to disclose the existence of that issue, and it is not shown by evidence, aliunde, that it was therein determined. It was necessary, therefore, for the city to show by, proof ouiside of the judgment-roll that the defendant was the author of the act injuring Sewell.

Now, the proof is that the defendant did erect over the bank of tlie Erie canal, in 186S, the tram-way, between which and his great vehicle, Sewell was caught and crushed, in 1874. (See Sewell v. Cohoes, 75 N. Y., 45.) This canal bank was the property of the State upon which the public were accustomed to travel. There is no evidence that it was accepted as a public street by the city at the time this tram-way over it was erected. The tram-way was so erected as to leave twelve feet clear space between it and the surface of the canal bank beneath it. In 1873 the city appropriated the canal bank as a public street; whether rightfully or not, as between the city and the State, was immaterial to the issue between the city and Sewell. (75 N. Y., 45.) The city, assuming control and authority over the canal bank, graded and paved it, and in doing so raised its surface two feet, so that the twelve feet clear space beneath the tram-way was reduced to ten feet. The evidence tended to show that if there had been twelve feet of clear space Sewell would have escaped injury.

Upon these facts the city could not resist the conclusion that its acts caused this tram-way to be injurious to Sewell. It failed, therefore, to prove the facts necessary to bind the defendant, by the judgment, in favor of Sewell, unless the law charged the duty upon the defendant, when the. city appropriated the canal bank as a public street, to remove the tram-way. The city had not, prior to Sewell’s injury, required its removal.

The complaint in the former case alleged, and the answer denied, that the tram-way was over a public street. It is claimed in behalf of the city that that issue having been made and determined in the former action,-is not open to inquiry here. But in order to Sewell’s recovery, it was only needful for him, upon that issue, to show that as between himself and the city, the city was estopped by its action to deny that the street was a public street. The city raised the objection, upon the evidence in that action, that it had not been shown that the city had lawfully acquired and established the street; but it was held that it was not necessary to the plaintiff’s recovery to proceed so far.

The Court of Appeals, in affirming the judgment, remarked that the city “ cannot escape liability for the alleged reason that it had no control over it, and the land belonged to the State.” (75 N. Y., 52.) It certainly accords with justice that the defendant here should be allowed to contest an issue material to'his defense, in this case, namely, whether, in fact, the place in question was a public street, as between himself and the city. This issue, had he assumed the defense of the city in tSie former action,- he could not have brought to a decision. The city was there estopped by acts in which this defendant had not participated.

The issue in the former action is broad enough either to cover the issue raised here or to exclude it. The issue determined is consistent either with a lawful or an unlawful act, as between the city and this defendant. The judgment, therefore, may or may not have determined the issue now raised by this defendant, and we cannot know, except by extrinsic evidence, whether it did or not. The judgment, therefore, leaves the issue open to further contention. To this effect are the authorities: Russell v. Place (94 U. S , 606); Davis v. Brown (Id, 423); Cromwell v. County of Sac (Id., 351); Campbell v. Rankin (99 id., 261); Doty v. Brown (4 N. Y., 71); McKnight v. Devlin (52 id., 399).

The judgment failing to show that the locus in quo was a public street, as between the city and the defendant, at the time the tramway was erected by the defendant, the construction of the evidence most favorable to the city is that after the tram-way was erected it accepted a dedication from the State. The city contests the conclusion that a street did not exist before the tram-way was erected. The evidence shows that the public had, before the erection of the tram-way, traveled over the canal bank at this point, in order to reach a bridge crossing the canal. Probably this travel was by the implied license of the State — a license revocable at pleasure. Put if we assume a'dedication by the State, we must find an acceptance by the city before we can hold that a public street was lawfully established, and there are no acts upon which to base an acceptance until the city entered and established a new grade. An acceptance must be of the dedication as made; the acceptance does not enlarge the dedication. When the acceptance was made it was of the street with the defendant’s tram-way over it. The city accepted the dedication, subject to the burden. (Fisher v. Prowse, 110 Eng. Com. Law, 770; State of New Jersey v. Society, etc., 15 Vroom., 502; City of Oswego v. Oswego Canal Co., 6 N. Y., 257.)

The defendant, so far as appears from the evidence, was the owner of the tram-way. The State could abandon its own claim, but could not without the defendant’s consent, or upon compensation, or by proceedings, in which he might have an opportunity to be heard, extinguish his. The city occupied no better position, and it does not appear that before the injury to Sewell it desired to , old the street otherwise than in subjection to defendant’s claim. The city contends that the judgment in the former action is conclusive that it did not accept the street subject to the obstruction, bec'ause if it had, Sewell could not have recovered, as he was one of the public which had accepted the dedication, and thus accepted its burden. The answer seems to be that the city is bound to keep its public streets in a reasonably safe condition for travel, and should not invite the public to use them before it had placed them in that condition.

The judgment should be affirmed with costs.

Learned, P. J., and Bocees, J., concurred.

Judgment affirmed, with costs.


text:
    NATHAN BECKER, Appellant, v. JACOB LEONARD, Respondent, Impleaded with PETER W. BAIN and Others.

      General assignment by partners — when it includes individual as well as partnership property — light of thepan'tn&rs to pay out of their individual property partnership, in preference to individual creditors — when the right to recover property frauda, lently transferred by an assignor passes to the assignee.

    In January, 1876, “Peter W. Bain and William H. Bain, copartners, doing business under tlie firm name of P. W. Bain & Son,” executed a general assignment to Y. H. Youngman, which, after reciting that the parties of the first part are indebted, etc., proceded to state that the parties of the first part do grant, assign and transfer to the party of the second part all and singular the real and personal estate of the parties of the first part in trust to sell, and with the net proceeds pay, first all the debts of the parties of the first part, as such copartners, and second all the private and individual debts of the parties of the first part, provided the respective amounts of the individual debts of each of the said parties does not exceed his portion of the surplus, provision being made that no part of the surplus due one partner shall be applied in payment of the debts of the other.

      Held, that the assignment contemplated the appropriation oí all the partnership and individual property of each partner, first, to the payment of the partnership debts, and, second, the surplus, if any due each partner, to the payment of his individual debts.
    That it was not made fraudulent against the individual creditors of either partner, because his individual property was appropriated to pay partnership debts, as each individual partner is individually liable for partnership debts, and so long as he has the disposing power over his individual property he can apply it to that purpose.
    This action was brought by the plaintiff, who had recovered, in December, 1878. a judgment upon an individual indebtedness of Peter W. Bain, existing prior to the assignment, to recover money placed ,in the hands of the defendant by Peter W. Bain, at the time the assignment was made, in order that it might be withheld from his creditors. The defendant paid the money to the assignee in August, 1876.

      Held, that the action ■ could not be maintained, as the fund in the hands of the defendant passed to the assignee by the assignment.
    That the assignee was not a necessary party to this action.
    Appeal from a judgment- in favor of the defendant Jacob Leonard, entered upon the trial of this action at the Albany Circuit by the court without a jury.

      George W. Miller, for the appellant.

      Hwngerford & Hotalmg, for the respondent.
   Landon, J.:

In” January, 1876, Peter W. and William H. Bain, copartners, made a general assignment to Y. H. Youngman, for the benefit of their ’ creditors, both ' copartnership and individual. Youngman accepted the trust, and is still acting as assignee. At the date of the assignment the defendant, Leonard, held $1,790.45 of the individual money of Peter W. Bain, one of the assignors. This sum Peter W. Bain placed in defendant Leonard’s hands for safe keeping, before the assignment was madé, and with the view to withhold it from his creditors. In August, 1876, the defendant Leonard paid this money to Youngman, the assignee.

The plaintiff is the judgment-creditor of Peter W. Bain, with execution unsatisfied. His judgments were obtained in December, 1878, upon the individual indebtedness of Peter, existing - prior to the general assignment, and he seeks in this action to reach, the money that was placed in the hands of the defendant Leonard by Peter W. Bain. The trial court gave judgment for the defendant Leonard upon the ground that the fund in the hands of defendant Leonard passed by the assignment to Youngman, the assignee.

It is obvious that if Youngman acquired by the assignment the right to the fund, then the plaintiff cannot reach it in this action, (Crouse v. Frothingham, 97 N. Y., 105.) ' The payment of the money by defendant Leonard to the assignee does not seem to be material, for if the assignee had no title to it then defendant Leonard, notwithstanding his payment, must account for it to the plaintiff, if plaintiff’s title be established. The plaintiff insists that the assignment by Peter "W. and William H. Bain was of their copartnership property, and not of their individual property, and therefore did not embrace this fund.

We have carefully examined the assignment, and conclude that it does convey the individual as well as the partnership property of the assignors. It is expressed to be an “ indenture made the 8th day of January, 1876, between Peter W. Bain and William H. Bain, copartners, doing business under the firm name of P. W. Bain & Son, parties of the first part, and Vreeland H. Youngman, party of .the second part.” It then recites that “ the parties of the first part are indebted,” etc. The counsel for the plaintiff insists that the assignment is substantially like the one in Morrison v. Atwell (9 Bos., 503) which was held not to include individual property. The corresponding recital in the case cited is “ the said copartnership is justly indebted,” etc. This assignment then proceeds: “ The parties of the first part * * * do grant, assign and transfer to the party of the second part, all and singular, the real and personal estate * * * of the parties of the first part * * * in trust to sell, * * * and with the net proceeds * * * pay first all the debts * * * of the parties of the first part, as. such copartners, etc.; second, * * * all the private and individual debts of the parties of the first part, * * * provided the respective amounts of the individual debts of each of the said parties does not exceed his portion of the surplus,” and provision is then made that no part of the surplus due one partner shall be applied in payment of the debts of the other.

We think this assignment contemplated the appropriation of all the partnership and individual property of each partner, first, to the payment of the partnership debts, and second, the surplus, if any due each partner, to the payment of his individual debts. The description of the assignors, and the language of the granting clauses of this assignment, are similar to that employed in the following cases, in which it was held that the individual property of the copartners was included. (Eastwood v. Ward, 35 Law Times [N. S.], 502; Williams v. Hadley, 21 Kans., 350; 30 Am. R., 430; Judd v. Gibbs, 3 Gray, 539.)

The assignment is not made fraudulent against the individual creditors of either partner, because his individal property is appropriated to pay partnership debts. Each individual partner is individually liable for partnership debts, and so long as he has the disposing power over his individual property, he can apply it for that purpose. (Smith v. Howard, 20 How. Pr., 121; Van Rossum v. Walker, 11 Barb., 237.)

It is the appropriation of firm property to pay the individual debts of the partners that is regarded as fraudulent against the firm creditors. The firm does not owe the individual debts. (Wilson v. Robertson, 21 N. Y., 587.) Here, if there had been provision that the individual debts should be paid out of the entire proceeds, instead of out of the surplus, and the individual debts had been unequal, then some of the property of one partner would be appropriated to pay the debts of the other, and hence the assignment would be fraudulent against an individual creditor injured thereby. (O’Neil v. Salmon, 25 How. Pr., 246.)

Equity will appropriate partnership property to partnership debts, and individual property to individual debts, and will not permit either class of creditors to appropriate the assets of the opposing class until all the claims of the latter are satisfied. (Meech v. Allen, 17 N. Y., 300.) But equity, as the case cited holds, will not supersede the existing lien or disposition, which the debtors lawfully made, and, therefore, will not defeat an assignment made by the individual debtor, of his separate property, to pay his partnership debts, which is otherwise unobjectionable. (Kirby v. Schoonmaker, 3 Barb. Ch., 46.)

The fact that Youngman, the assignee, is not a party, is not material to the issues between these parties. In Crouse v. Froth ingham (97 N. Y., 105), the assignee was made a party, but did not answer. He thereby confessed that he had no title to assert against the judgment creditor. But the court held otherwise; that the rights of the creditors, represented by him, could not be varied at his option, and that the title was in him, for the benefit of all the creditors. There are other objections urged against the plaintiff’s recovery, but we do not think it necessary to discuss them. •

The judgment should be affirmed, with costs.

Learned, P. J., and Bockes, L, concurred.

Judgment affrmed, with costs.


author: Landon, J. : Learned, P. J.:

text:
    WALTER S. CHURCH, Appellant, v. DE WITT C. SCHOONMAKER, Respondent.

      Landlord and tenant — when the possession of the tenant becomes adverse— Code of Civil Procedure, sec. 373 — after it has become adverse a deed conveying the landlord’s interest is void for champerty.

    In 1851, one Paul Settle conveyed to his son, Edward, a lot of four acres, which had been leased, in 1795, hy Stephen Yan Rensselaer to Jacob Post for the term of sixteen years at a rent of six pounds per annum. Edward paid the arrears of rent in full up to January, 1860. On March 26, 1860, Edward conveyed the premises, by a quit-claim deed, to one Becker, “subject to the rents and covenants and conditions reserved in the original lease to Jacob Post.’ Becker, on March 29, 1861, conveyed a parcel of said premises by a warranty deed, not mentioning the rent or lease, to the defendant Schoonmaker, who has since been in possession thereof; no rent having been paid hy him, and no demand therefor having Deen made upon him, before February 24,1883, when this action was commenced to recover the possession of the premises. On July 5, 1883, Becker paid to the plaintiff, who had acquired by deed, on February 1, 1882, the interest of the Yan Rensselaers, the rent in arrear upon the whole four acres, hut without the knowledge or consent of the defendant Schoonmaker.

      Held, that Becker, at the time he gave the warranty deed to Schoonmaker, was a tenant, from year to year, of the Yan Rensselaers.
    That as he could convey no better title than he held, he conveyed to Schoonmaker a tenancy from year to year, thereby making the possession of Schoonmaker that of the Van Rensselaers until the expiration of his tenancy.
    That, hy section 373 of the Code of Civil Procedure, the tenancy between the Yan Rensselaers and the defendant continued for twenty years from the time of the last payment of rent, which, in this case, as regarded the defendant Schoonmaker, was made in January, 1860.
    That at that date Schoonmaker’s holding commenced to he adverse as against the Van Rensselaers, and that the deed from them to the plaintiff was void for champerty.

      Bembte, that Schoonmaker’s title, though adverse to the Van Rensselaers, would not have been good as against an action of ejectment brought by them.
    (Learned, P. J., not concurring.)
    Appeal from a judgment entered in Albany county in favor of the defendants upon the report of a referee. The action was ejectment for the non-payment of rent.

      S. W. Rosendale, for the appellant.

      W. <& Q. W Youmans, for the respondent.
   Landon, J. :

In 1795, Stephen Yan Renselaer leased to Jacob Post a lot of four acres for the term of sixteen years at six pounds rent per annum. Post took possession under the lease. Paul Settle afterwards came into possession, and in 1851 conveyed the premises to his -son Edward, who paid up the arrears of rent in full to January, 1860. On the 26th of March, I860, Edward Settle, by quit-claim deed, conveyed the premises to John J. Becker, the deed reciting: “ Subject to the rents and covenants and conditions reserved in the original lease to Jacob Post.” Becker conveyed, March 29, 1861, a parcel of said premises to the defendant Schoonmaker, by warranty deed, without any mention of rent or of the Post lease, and Schoonmaker has since been in possession, the defendant G-allup also occupying with him at the time this action was commenced. No rent has ever been paid by Schoonmaker, and none demanded of him before February 24, 1883, the date of 'the commencement of this action. On the 5th of July, 1883, Becker, defendant’s grantor, paid to the plaintiff the rent in arrear upon the whole four acres, but without the knowledge or consent of the defendant. The plaintiff, by deed, acquired the interest of the Yan Rensselaers in the premises February 1, 1882. 'When the plaintiff obtained the deed from the Yan Rensselaers, Schoonmaker had held the premises upwards of twenty years under his warranty deed from Becker. Becker at the time he gave the warranty deed to Schoonmaker was the tenant of the Van Rensselaers. The term of sixteen years, expressed in the Post lease, had expired long before, and Becker’s tenancy was from year to year. Becker could convey no better title than he held; he, therefore, conveyed to Schoonmaker a tenancy from year to year. ( Whiting v. Edmunds, 94 N. Y., 309.) The possession of Schoonmaker was the possession of the Van Rensselaers until Schoonmaker’s tenancy expired. (Code Civil Pro., § 373.)

The relation of landlord and tenant existed. But there had been no written lease between these parties or their grantors, since it could not be said that the Post lease, the term of which had long since expired, was the existing lease; the law made a lease after the expiration of the Post lease and referred to that lease for the conditions and yearly rents, if no other had been fixed; but other rate of rent had been fixed between Becker and the Van Rensselaers.

By section 373, Code of Civil Procedure, the tenancy between the Van Rensselaers and the occupant continued “until the expiration of twenty years after the last payment of rent, notwithstanding that the tenant has acquired another title, or claimed to hold adversely.” The last rent was paid, so far as Schoonmaker is affected, to January, 1860. The landlord, therefore, was constructively in possession until January, 1880. At that date Schoonmaker’s holding commenced to be adverse. The adverse possession, therefore, had not continued long enough to bar this action (Code Civil Pro., § 368), if the Van Rensselaers had brought it. But the reasons given make the deed to the plaintiff of February 1,1882, void for champerty. The statute provides that a deed shall be void if when delivered the lands are in the actual possession of a person claiming under a title adverse to that of the grantor.” Schoonmaker had title to the land from Becker, but, as we have seen, that title, up to January, 1880, was constructively the title of a tenant, and he could not start an adverse possession under it until January 1, 1880. He then had a title, not good against the Van Rensselaers’ action of ejectment, but adverse to the Van Rensselaers; adverse, first, because it did not in fact recognize the Van Rensselaers’ title, but was of the entire fee, and hence inconsistent with it (Sands v. Hughes, 53 N. Y., 293), and, second, because, by twenty years’ non-payment of rent, the law did not longer attach any relation of landlord and tenant to it. It is true that Schoon maker’s title was not superior to the Yan Rensselaers’ title, but it had become hostile or adverse to it, and was a title, not a mere claim of titje. (Dawley v. Brown, 79 N. Y., 390; Fish v. Fish, 39 Barb., 513.) The Yan Rensselaers could only show paramount title by evidence extrinsic to the two titles, and the policy of the champerty act is, as said in Sands v. Hughes, to prevent the party out of possession from transferring his right to litigate that question.

The defendant was not a party to the payment of rent by Becker, in 1883, and had no knowledge of it. The appellant insists that this finding is not supported by the evidence. But Schoonmaker had reason to suppose that there was no rent reserved, and Becker had reason to pay without the knowledge of Schoonmaker. Becker certainly could not, after he had assumed to convey full title, without the knowledge of his grantee, do any act to the prejudice of the title he had given. Either the landlord or tenant must suffer from the act of Becker, and it would seem that the negligence of the landlord was greater than that of the tenant, since the landlord knew and the defendant did not, that rent was due, and the landlord was put upon inquiry by the long occupation of Schoonmaker, as to his claim to occupy.

The plaintiff suggests that he should be permitted to amend by substituting his grantors as plaintiffs. (Code Civil Pro., § 1501.) If the statute of limitations had barred his action in the name of his grantors this suggestion would have more force.

Judgment affirmed, with costs.

Bookes, J., concurred.

Learned, P. J.:

I concur in the result, but am not willing to say that an action could be successfully maintained against the defendants by the Yan Rensselaers.

Judgment affirmed, with costs.


text:
    CHARLES DUNTLEY, Appellant, v. MORTON H. DAVIS, Respondent.

      Tax collector — effect of Ms failure to give a bond as required by section 24 of chapter 507 of 1875 — when his acts done under the warrant are rendered valid by the subsequent giving of the bond.

    A. warrant for the collection of school taxes was, on December 11, 1882, placed in the hands of the defendant, who had, in the previous October, been duly elected collector of taxes. At the time he received the warrant he had not been notified to give a bond, nor had the amount thereof been fixed by the school meeting or the trustee, as required by section 24 of chapter 567 of 1875. The defendant posted the statutory notice to the taxpayers to make voluntary payment within two weeks, and personally demanded payment of them within the life of the warrant; the plaintiff refused to pay the tax assessed against him, which amounted to one dollar and twelve cents. Upon the expiration of the warrant it was, on January 24,1883, duly renewed by the trustee. On the next day the defendant gave his bond to the trustee and then again demanded pay ment of the plaintiff, and upon his refusing to pay levied upon a wagon belonging to him and thereafter sold it, without having again posted the statutory notices giving the taxpayers time for voluntary payment.

      Held, that so much of the statute as required a bond to he given by the collector was mandatory, but that the provision prescribing the time within which this should be done was directory only.
    That in the absence of any evidence that the taxpayer or the public were prejudiced by the failure of the defendant to give the bond at the time prescribed by law, and inasmuch as abuses did not seem likely to arise or to he favored by so holding, public policy required the court to hold that upon the filing of his bond by the collector all his acts done under the warrant before the levy and sale were validated.
    Appeal from a judgment in favor of the defendant, entered upon a verdict rendered in the County Court of Essex county, and from an order denying a motion for a new trial made upon the minutes.
    The action was originally brought in a Justice’s Court to recover the value of a wagon alleged to have been wrongfully seized and sold by the defendant, as a collector, for the non-payment of a school tax.

      B. Pond, for the appellant.

      Milo O. Perry wad. Marcus D. Grover, for the respondent.
   Landon, J.:

The warrant for the collection of the school taxes was placed in the hands of the defendant December 11, 1882. He had been duly elected collector of taxes for the school district in October previous. He was, therefore, collector de jure. (Foot v. Stiles, 57 N. Y., 399; Williamson v. McKinney, 52 id., 382.) He had not, at the time he received the syan-ant, been notified to give a bond, nor had the amount thereof been fixed by the school meeting or the trustee, as the statute requires. (Laws 1875, chap. 567, § 24.) The defendant, as collector, was not, therefore, so in default, because of such omission to give the bond, as to avoid his title to the office, or to make it defeasible. (Woodhull v. Bohenblost, 4 Hun, 399.)

The section of the statute cited, however, provides that “ within such time, not less than ten days, as the trustee shall allow him for the purpose, the collector, before receiving the first warrant for the collection of money, shall execute a bond to the trustee with one or more sureties, to be approved by a majority of the trustees, in such amount as the district meeting shall have fixed, or, if such meeting shall not have fixed the amount therein, such amount as the trustees shall deem reasonable, conditioned for the due and faithful execution of the duties of his office.” (Laws 1875, chap. 567, § 24, p. 644; Laws 1864, chap. 555, § 83, p. 1263.)

The defendant, as collector, notwithstanding he had given no bond, proceeded under the warrant. He posted the statutory notices to the taxpayers to make voluntary payment within two weeks, and he personally made demand of payment of them within the life of the warrant. The tax against the plaintiff was one dollar and twelve cents, which he refused to pay. The warrant expired and was duly renewed by the trustee January 24, 1883. On the next day the defendant gave his bond to the trustee, and then again demanded payment of the plaintiff; this was refused, whereupon the defendant levied upon his wagon and thereafter sold it. The defendant, after giving his bond, did not again post the statutory notice giving the taxpayers time for voluntary payment. It is a condition precedent to the right of the,,collector to levy and sell that such notices be posted. (Bedell v. Barnes, 15 Hun, 353.) If the notices posted before the bond was given were a compliance with the statute, or, if the statute requiring the bond to be given is merely directory, and when given related back to the receipt of the warrant, then the plaintiff cannot complain.

It was held in Woodhull v. Bohenblost (4 Hun, 399) that it was the intention of the legislature that the collector should have no power to execute the warrant until the bond should have been given. That was a ease between the trustee and collector. No doubt the people for whose benefit the bond is required may rightfully object to his collecting any taxes until he has given the bond guaranteeing his fidelity. It will be seen that the section of the statute quoted above authorizes the trustees to fix the time in which the collector shall give the bond, and makes the time end before the collector receives his first warrant.

Here the time fixed by the trustee ended later. But time, so far as the validity of’the bond is concerned, is merely directory, since the statute does not negative its validity, if filed after the warrant is delivered. (Gale v. Mead, 2 Den., 160; Dawson v. People, 25 N. Y., 399.) The giving of the bond is mandatory; the time when, directory. When, therefore, the defendant had delivered the bond, his competency to execute the warrant was complete. He had posted the preliminary notices when his competency was only partial. The case is not without difficulty, and, so far as we know, is without precedent, but we think that public policy, in the absence of any evidence that the taxpayer or the public were prejudiced thereby, and inasmuch as abuses do not seem likely to arise or be favored, requires the holding that, upon the filing of his bond, all his acts under the warrant, before levy and sale, were validated.

In the ease of Rounds v. Mansfield (38 Me., 586), to which we are cited, the statute required the pound-keeper, before acting as such, to give a bond. The bond was the condition precedent to his right to act. Here the statute does not say the giving the bond is a condition precedent to the right of the collector to act or to receive the warrant. But we quite agree that he cannot enforce the warrant until he shall have given his bond. Here he had given it before he enforced the warrant.

'The judgment should be affirmed, with costs.

Learned, P. L, and Bockes, J., concurred.

Judgment and order affirmed, with costs.