author: O'Brien, J.

text:
    Henry J. Bridger, Resp’t, v. Jonas G. Goldsmith, App’lt.

      (Court of Appeals,

      Filed October 30, 1894.)

    1. Instrument—Sexl—Effect.
    A seal, unnecessarily affixed to an agreement for the sale of personal properly, does not affect the rights of the parties, each of whom is entitled to same defense as he would he, in case the writing was unsealed.

      3. Fraud-Estoppel.
    A mere device of the guilty party to a contract, intended to shield himself from the results of his own fraud, practiced upon the other party, cannot operate as an equitable estoppel.
    3. Same.
    A party, who has perpetrated a fraud upon another, cannot contract with him in the very instrument, by means of which it was perpetrated, for immunity against its consequences.
    Appeal from judgment of the general term of the court of common pleas for the city and county of New York, entered upon an order, which affirmed a judgment in favor of plaintiff entered upon a decision of the court on trial at special term.

      Isaac H. Maynard, for app’lt; John A. Straley, for resp’t.

       Affirming 52 St. Rep. 409.

   O'Brien, J.

The judgment in this case awards equitable relief to' the plaintiff, rescinding and declaring void for fraud a written contract made by the parties on the 16th day of March, 1891. By this contract the defendant sold to the plaintiff for $3,0,00 his business, fixtures and other property, including three upright pianos in his store or place of business in -the city of New York. The plaintiff went into the possession of the store and the goods, having paid$2,500of the purchase price, andsoon after ascertained that he had been induced to enter into the contract and make the payment by means of grossly false and fraudulent representations as to the character and.value of the property and the extent and magnitude of the business which the defendant transferred to him and the income therefrom. The fraudulent acts and representations of the defendant which induced the plaintiff to purchase and pay for the property are fully alleged in the complaint, and found by the referee upon evidence entirely sufficient. In view of these findings we must assume, upon the consideration of the appeal, that the defendant in negotiating the sale deceived and defrauded the plaintiff. The judgment annulled the contract and directed the defendant to restore to the plaintiff the portion of the* purchase price which was paid. In this state of the case there would be no question for our consideration, except'for a peculiar clause which was inserted in the written instrument, which is the evidence of the terms and conditions of the sale, at the request and upon the suggestion of the defendant. That clause reads as follows: “It is expressly understood and agreed between the parties hereto that the said party of the first ¡Dart has not, in any manner or form stated, made or represented to the said party of the second part, for the purpose of inducing the sale of the said business or the making of this agreement, any statements or representations, verbally or in writing, in respect to the said business other than that the said party of the first part has been engaged in the piano business in the cityof New York since 1867.”

It is urged by the learned counsel for the defendant that, as this stipulation was inserted in the writing, which is under seal and assented to by both parties, the action cannot he maintained. I assume that the fact that a seal was unnecessarily affixed to an agreement for the sale of personal property cannot affect the rights of the parties. Every defense is open to either party that would have existed in case the writing was unsealed. It appears that after the negotiations had been completed and the agreement drawn, the defendant stated, in the presence of the plaintiff, and the counsel for both parties present, that he wanted a clause of this character inserted. The plaintiff’s counsel at first objected to it. The defendant’s counsel suggested that it would make no difference, and the plaintiff consented that it might be.put in. There .is evidence in the case tending to show that the plaintiff voluntarily assented to this stipulation after having been advised by his counsel that it would have the effect of precluding him from subsequently alleging fraud in the transaction, even though it existed in fact. The provision is not a covenant in any proper sense of that term. Indeed, it can scarcely be considered as any part of the agreement at all. It does not relate in any manner to the subject-matter of the contract. It was a mere statement in the nature of a certificate as to a fact. It did not relate to the property or to the terms of the sale or the payments, but to, the absence of all fraud from the transaction. The clause cannot be given any greater effect than if it had been written upon a separate paper after the execution of the contract and signed by the parties. The question now is whether it can be given the effect claimed for it by the learned counsel for the defendant, to preclude the plaintiff from alleging fraud in the sale and pursuing in the courts the remedies which the law gives in such cases. It cannot operate by way of estoppel for the obvious reason that the statements were false to the defendant’s knowledge. He may, indeed, have relied upon its force and efficacy to protect him from the conse-quences of his own fraud, but he certainly could not have relied upon the truth of any statement in it. A mere device of the guilty party to a contract intended to shield himself from the results of his own fraud, practiced upon the other party, cannot well be elevated to the dignity and importance of an equitable estoppel.' If the clause has any effect whatever, it must be as a promise or agreement on the part of the plaintiff, that however grossly he may have been deceived and defrauded by the defendant, he would never allege it against the transaction or complain of it, but would forever after hold his peace. It is difficult to conceive that such a clause could ever be suggested by a party to a contract, unless there was in his own mind* at least a lingering doubt as to the honesty and integrity of his conduct. I assume that there is no authority that we are required to follow in support of the proposition that a party who has perpetrated a fraud upon his neighbor may, nevertheless, contract with him in the very instrument by means of which it was perpetrated, for immunity against its consequences, close his mouth from complaining of it and bind him never to seek redress. Public policy and morality are both ignored if such an agreement can be given effect in a court of justice. The maxim that fraud vitiates every transaction would no longer be the rule but the exception. It could be applied then only in such cases as the guilty party neglected to protect himself from his fraud by means of such a stipulation. Such a principle would in a short time break down every barrier with the law has erected against fraudulent dealing. It is argued that' whatever may be' said about the fraudulent character. of the sale itself, this particular" clause was a bargain fairly made and deliberately entered into by the plaintiff, with full knowledge of its purpose, scope and effect, and, therefore, the plaintiff should be held to abide by it. But it is not correct to say .that even with respect to this clause the parties dealt with each other at arms length. The defendant, when suggesting it,. had the advantage of his secret knowledge, that, its statements were false, while the plaintiff, on the other hand, relying upon the truth of the representations made as to the extent and character of the business, was not upon his guard, but, assuming that the defendant had told him the truth, was readily induced to sign a statement which, upon such assumption, was obviously of no consequence. In fact it was but a link in the chain and the crowning act which was to secure to the defendant the full fruits of the fraud and thus enable him not only to overreach the plaintiff, but the law itself. This clause cannot be separated from the transaction in which it originated. It is tainted with the same vice and must share the' same condemnation. As the chain can be no stronger than its weakest link, so this clause cannot be made to survive the rest of the transaction as a shield and protection to the defendant. I have not thought it necessary to cite authorities in support of these views, but cases are not wanting which by analogy, at least, sustain’them, and by an application of the principles decided to the facts here, the foregoing propositions are legitimately deduced. Wilcox v. Howell, 44 N. Y. 398; Shapley v. Abbott, 42 N. Y. 443; Hutchins v. Hebbard, 34 N. Y. 24; Universal Fashion Co. v. Skinner, 64 Hun, 293; 46 St. Rep. 633; Crawford v. Lockwood, 9 How. 547; Knulle v. Newcomb, 22 N. Y. 249; Broom’s Legal Maxims, 622; Bigelow on Est. (4th ed.), 563; Smyth v. Munroe, 84 N.Y. 361; State v. Smelting Co., 106 U. S. 447.

Much of the argument in support of the appeal rests upon the proposition that the defendant would not have assented to the sale without this clause, and as the plaintiff obtained such assent only by acquiescing- in its'.insertion in the writing, he ought not now to be permitted to question it. Without inquiring what the z'esult would or ought to be in case this assumption was correct, it is sufficient to observe that no such fact is found, and in the sense in which the defendant claims, it could not have been found from the testimony.- While at tlie end of the transaction he did suggest that the clause should be inserted, and perhaps insisted upon it, yet to say that he would not have made the sale under the same circumstances without it, had the plaintiff refused his assent, is to assert a proposition that finds no support in the facts and circumstances of the case. No doubt the defendant wanted this provision in the conti'act, but the terms and conditions of the sale had been settled befoz-e it was suggested, and it was manifestly intended as a possible safeguard against the result of misrepresentation rather than a- bona fide condition of the sale.

The judgment is right and should be affirmed, with costs.

All concur. Judgment affirmed.


source: Caselaw Access Project

author: Andrews, Ch. J.

license: Public Domain

text:
    Theodore Kirsch, by Guardian, etc., et al., Resp'ts, v. Orange L. Tozier et al., App’lts.

      (Court of Appeals,

      Filed October 23, 1894.)

    1. Trustees—Liability of third person.
    A person dealing with a trustee, wlio; from the nature of his office or by the terms of the trust, has power to satisfy or transfer the securities of the estate, or to vary the instrument from time to time, is not bound to go further and ascertain whether in fact the act of the trustee is justified, and that no breach of trust is intended.
    3. Same. '
    Where no affirmative power to accept payment of a mortgage before it becomes due or to vary the trust security, is conferred in fact in the instrument, no implication of such a powei' arises in case of a trustee of a specified security for the benefit of minors, and no other evidence of his actual authority exists than may be implied from the fact that he is trustee of the security.
    3. Same.
    Where a proposed purchaser of the land has knowledge that the trustee was the owner of the land as well as the trustee of the mortgage, and that the mortgage was not due at the time of its discharge, he is bound to in. quire in respect to the trustee’s authority to discharge such former mortgage and, if he fails to do so, is not entitled to protection as a bona fide purchaser.
    Appeal from judgment of tbe general term of tbe supreme court in the fifth judicial department, entered upon an order, which-affirmed a judgment in favor- of plaintiffs entered upon the report of a referee.
    This action was brought to reinstate a mortgage executed by the defendant Lester H. Tozier and his wife to the defendant Orange L. Tozier, which was made in trust for the plaintiffs, Michael Kirsch and Theodore Kirsch, and for Peter Kirsch, now deceased, minor children of John Kirsch, to set aside a discharge of such mortgage executed by Orange L. Tozier, and for foreclosure of the mortgage and sale of the' mortgaged premises for the benefit of the persons named as cestui que trust.

    The lands in question consist of 102 acres situate in the town of Sheldon, Wyoming county, New York, of which John Kirsch died seized in the year 1872. On the 8th day of January, 1873, the defendant Orange L. Tozier was appointed general guardian of the infant children, Michael J., Theodore and Peter Kirsch. At the time of his death John Kirsch owed debts which, with the incumbrances upon his real estate, exceeded the value of both his personal and real property. Orange L. Tozier and Elizabeth Kirsch, the latter the widow of the deceased, were appointed administrators of the estate of John Kirsch. Subsequently to this it was agreed between them and Lester H. Tozier, a son of Orange L. Tozier, that they should purchase the mortgages then existing on the farm, foreclose them and procure a title to the land, and convey the same to Elizabeth Kirsch, who should, in turn, by mortgage thereon, secure to Lester H. Tozier the amount paid by him, and give a mortgage upon the farm of $1,000 to these three children. This arrangement was carried out, except that upon a sale of the lands, either by direct purchase at the sale or by deed corning immediately from the purchaser, Lester H. Tozier became the owner for the consideration, in all, of $1,131.56. Thereupon it was further arranged between Orange L. Tozier and the widow, Elizabeth Kirsch, that the widow should convey to the then .holder of the title, Lester H Tozier, all her interest in the lands to which she was entitled as widow, and that a mortgage should be executed by Lester H. Tozier to Orange L. Tozier, in trust for the three children, in the sum of $1,000, one-third thereof payable to each of the three children when he should arrive at age, with interest in the meantime. Having received the deed from Mrs. Elizabeth Kirsch, Lester H. Tozier and his wife executed to Orange L. Tozier, in trust for Michael Kirsch, Peter Kirsch and Theodore Kirsch, “minor children of John M.-Kirsch, deceased,” the mortgage in question, dated the 15th day of October, 1875, expressing a consideration of $1,000, payable as follows: The sum of $333.33 November 13, 1887; the sum of $333.33 March 18, 1891, and the sum of $333.33 October 6, 1892, with interest payable annually from the 1st day of April, 1876. This instrument was delivered to Orange L. Tozier, who caused the same to be recorded in the proper clerk’s office on the 23d day of October, 1875. The mortgagee and trustee paid the interest upon this mortgage to Elizabeth Kirsch, the mother of the children, in pursuance of a previous arrangement, until the spring of 1*886, since which time no part of the principal or interest has been paid thereon by the trustee for the benefit of either of the children.
    On the 3d day of September, 1883, Lester H. Tozier and his wife executed and delivered a deed of the farm to Orange L. Tozier, at a consideration, as expressed in the deed, of $4,000, and the record title of such farm has since been in Orange L. Tozier. After acquiring this title, and on the 19th day of February, 1886, Orange L. Tozier executed, and acknowledged a discharge of the mortgage, and caused the same to be recorded in the proper clerk’s office on the 9th day of March, 1886. On the 27th day of January, 1886, before the execution of such discharge, Orange L. Tozier applied to the defendant, the Buffalo Saving Bank, for a loan of $2,000 upon his farm, which application was granted on the 1st day of February, 1886; and on an examination of the title of such farm, submitted to the officers of the bank, there was an abstract certified by the proper clerk of Wyoming county to the effect that Orange L. Tozier appeared to be the owner of the farm. On such abstract a memorandum of the mortgage, sought by this action to be reinstated, described the mortgage simply as being given for $1,000 and interest, “in trust for Michael Kirsch, Theodore Kirsch and Peter Kirsch, m.inor children of John M. Kirsch, deceased,” having written across the face of the memorandum as follows: “Discharged March 9, 1886, E. M. Jennings, Glerk.” The defendant, the Buffalo Savings Bank, at the time of taking its mortgage and advancing the money thereon, had not, either through any of its officers or attorneys, any knowledge or notice of the existence of this mortgage now sought to be reinstated in this action, except the memorandum on the abstract of title of its discharge, and the constructive notice given by the record of such mortgage.

      Adolph Rebadow and Johnson & Charles, for app’lts; Spencer Clinton, for app’lt, Buffalo Savings Bank; F. C. Peck and Frank W. Brown, for resp’t.

      Affirming, 44 St. Rep. 654.

   Andrews, Ch. J.

The only serious question presented on the record arises on the claim of the Buffalo Savings Bank, that it was not chargeable with notice nor put upon inquiry to ascertain that the defendant Tozier had no authority to discharge the mortgage in question. The savings bank, when it took its mortgage, had constructive notice of every fact which could have been ascertained by an inspection of the deeds, or mortgages, or record in the chain of title. An inspection of the records of the title to the land upon which its mortgage was taken would have disclosed the mortgage given by Lester H. Tozier in October, 1875, and that it was given “ in trust ” for the three minor children of John M. Kirsch, deceased; that the lands covered by the mortgage were subsequently, in 1883, conveyed by Lester H. Tozier to Orange L. Tozier, the mortgagee named in the mortgage given, in trust for the minor children of John M. Kirsch; that after such conveyance, and in March, 1886, Orange L. Tozier, then being the owner of the lands and also the mortgagee “in trust,” in that mortgage, himself executed and caused to be recorded a satisfaction of the mortgage, and that this occurred before any part of the sum secured by the mortgage had become due. There can be no doubt that the satisfaction of the mortgage was as to the defendant Oranger L. Tozier a breach of trust. The satisfaction was without consideration. The question whether Tozier held the mortgage as trustee impressed with a trust in favor of the three children of John M. Kirsch, admits of no doubt. The implication from the nature of' the .instrument, the character of the beneficiaries and the division of the payments into three equal parts, payable at specified but different dates in the future, is that the instrument was intended to secure to the several beneficiaries as they became of age an equal share of the sum for which the mortgage was given. The acceptance by Orange L. Tozier of the mortgage containing the declaration of the trust was an acknowledgment of the trust on his part and bound him to perform it. The trust was expressed in the instrument, although not fully set out in words, and any act thereafter done by him in contravention of the trust was by the common law ana by the statute void. St. Uses and Trusts, 1 Rev. St. § 65. The dischai’ge of the mortgage was not intended for the benefit of the infants, but to deprive them of the benefit of the security, and, as we have said, was a plain breach of trust. The bank knew, or must be presumed to have known, when it took its mortgage, because an examination of the records would have disclosed the facts, (1) that the mortgage was taken by Tozier in trust for infants; (2) that he satisfied it before it became due: (8) that his relation to the property had changed, so that when he executed the satisfaction he was himself the owner of the land, having an adverse interest to those beneficially interested in the security, and (4) that in satisfying the mortgage he was dealing with himself. Persons dealing with a trustee must take notice of the scope of his authority. An act within his authority will bind the trust estate or the beneficiaries as to third persons acting in good faith and without notice, although the trustee intended to defraud the estate, and actually did accomplish his purpose by means of the act in question. It has frequently been held that a person dealing with an executor, administrator or trustee, who, from the nature of his office, or by the terms of the trust, has power to satisfy or transfer the securities of the estate, or to vary the instrument from time to time, is hot bound to go further and ascertain whether in fact the act of the executor or trustee is justified, and that no breach of trust was intended. It is sufficient for his protection that he acts in good faith, and if the act of the executor or trustee is justified by the terms of the power, the party dealing with him is protected. Fuld v. Schieffelin, 7 Johns. Ch. 153. But circumstances were disclosed by the record when the bank took its mortgage, which precluded the bank from relying upon the recorded satisfaction of the prior mortgage. There was no indication in the mortgage that any power was vested in the trustee Tozier to accept payment of the mortgage before it became due, or to vary the trust, security. There was no such affirmative power conferred upon him in fact, and the case of McPherson v. Rollins, 107 N. Y. 316; 12 St. Rep. 488, seems to be a decisive authority that there is no implication of such a power in case of a trustee of a specified security for the benefit of minors, and no other evidence of his actual authority exists than may be implied from the -fact that he is trustee of the security. The rule declared in that case operated with great severity upon one who, withoutany actual notice, bought the property upon an official certificate that no lien existed on the premises, paying full value therefor. There the mortgage was given to secure the payment of an annuity to the mortgagee, and also annuities to two minors until they should become of age. The mortgagee afterwards, and before the expiration of the minority of the two children, without consideration, assumed to discharge the mortgage and the satisfaction was duly recorded. It was held that the trustee had no power to satisfy the mortgage before the termination of the trust, and that the- purchaser was not protected. It is difficult to perceive ’ any solid distinction between that case and the present. In McPherson v. Rollins there was no express direction that the mortgage security should remain unchanged during a term of the trust. It was given to secure annuities presumably for maintenance. Here the mortgage was given to secure a gross sum, for the benefit of infants, the shares being payable, as was to be inferred, on their severally attaining full age. There is a very pregnant circumstance in the present case bearing upon the point of constructive notice. The bank relied upon a discharge by Tozier of a lien held by him as trustee on liis own land. The transaction as disclosed by the record showed that in executing the satisfaction Tozier was dealing with himself, and that the act was in his own interest, and not only so, but that the mortgage was not due. Tozier was acting in the double capacity of owner of the land and trustee of a lien thereon for other persons. The transaction was unusual and special and the savings bank with knowledge of Tozier’s relation to the land as owner and trustee was, we think, bound to inquire by what authority he acted, and if inquiry had been made the invalidity of the transaction would or might have been disclosed. What circumstances will amount to constructive notice or will put a party upon inquiry is, in many cases, a question of much difficulty. A purchaser is not required to use the utmost circumspection. He is bound to act as an ordinarily prudent and careful man would do under the circumstances. He cannot act in contravention to the dictates of reasonable prudence or refuse to inquire when the propriety of inquiry is naturally suggested by circumstances known to him. The circumstances of this case made it, we think, the duty of the bank to inquire in respect to the authority of Tozier to discharge the prior mortgage, and having failed to do so, is not entitled to protection as a bona fide purchaser. Baker v. Bliss, 39 N. Y. 70 and cases cited; Story Eq. Jur. § 400 et seq. The other questions are satisfactorily disposed of in the opinions of the referee and at general term, and do not require further elaboration.

The judgment should be affirmed, with costs.

All concur. Judgment affirmed.


author: Gray, J.

text:
    Frederick Marstaller, Resp’t, v. Ogden Mills et al., as Trustees, etc., App’lts.

      (Court of Appeals,

      Filed October 30, 1894.)

    1. Corporation—Dissolution—Liability.
    An action for injuries, caused by tbe negligence of a domestic business corporation, is maintainable against the trustees holding the corporate property for the purposes of distribution.
    2. Same.
    The word “creditors,” in § 30, chap. 687, of 1892, includes all those to whom the corporation was under any enforceable obligation at the time of its dissolution, as well as those to whom it was indebted1.
    Appeal from judgment of the general term of the supreme court in the second judicial department, entered upon an order, which affirmed an interlocutory judgment in favor of plaintiff entered upon an order of special term overruling a demurrer to the complaint.

      William John Warburton, for app’lts; James G. Oropsey and Charles J. Patterson, for resp’t.
   Gray, J.

Plaintiff brings this action against the defendant, as the trustees of the creditors and stockholders of the Mergenthaler Printing Company, a domestic business corporation, to recover for the loss of services of his son; who was injured while in the employment of the company. Subsequently to the time when he received these injuries, that corporation was dissolved, in.the course of proceedings for its voluntary dissolution, and the sole question, which is presented by the demurrer to the complaint, is whether the cause of action survived the dissolution and is maintainable against the defendants. If provision has not been made in the statute law of this state, whereby such a cause of action is preserved from abatement, the common law rule would undoubtedly be in force and the plaintiff’s remedy would be gone. We think that such is not the case and that, upon a fair reading and by a reasonably liberal construction of certain statutory provisions, the plaintiff retained his remedy in the form he has adopted.

In the “Business Corporations Law” (Laws 1892, chap. 691, § 5) is contained the following section :

“Payment oe Capital Stock.—One-half of the capital stock of every such corporation shall be paid in within one year from its incorporation, or the corporation shall be dissolved. * * * The dissolution of any such corporation for any cause shall not take away-or impair any remedy against it, its stockholders or officers, for any liabilities incurred previous to its dissolution.”

The last sentence of this section was taken, with a slight change of verbiage, from the statute as it was enacted in 1875 (Laws 1875, chap. 611, § 38); where it stood as a distinct section. Although it was inserted in connection with a provision made for the event of (a failure to pay in the capital stock, its language is too comprehensive to warrant us in attributing any other legislative intent, than what the plain reading conveys. Inartificial as may be the insertion of this clause in the section, it cannot be qualified by what precedes and it reaches beyond the contingency of the particular dissolution previously referred to and applies to any, that is to every, case of corporate dissolution.

The plaintiff’s cause of action arose upon a wrong having been’ done to his rights or interests, for which tbe corporation could be held liable, and if it has survived, by force of the statutory provisions mentioned, we think he is entitled to be classed with the “creditors;” for whom, in another provision, the directors of the corporation become trustees. It was enacted in the “ General Corporation Law” (Chap. 687 of the Laws of 1892) as § 30 and reads:

“Upon the dissolution of any corporation created, or to be created, and unless other persons shall be appointed by the legislature, or by some court of competent authority, the directors or managers of the affairs of such corporation at the time of its dissolution, by whatever name they may be known in law, shall be the trustees of the creditors and stockholders of the corporation dissolved, and shall have full power to settle the affairs of the corporation, collect and pay the outstanding debts and divide among the stockholders the moneys and other property that shall remain after the payment of debts and necessary expenses.”

We think that the legislature intended by this provision that the corporate property should be held and administered upon by tbe directors, where other persons were not appointed, for the purpose of its distribution in the settlement of all existing claims upon it; whether the claimant was a creditor in the legal sense, or not. The term “creditor” is broad enough, in view of the evident purpose of this act and of the other provision we have mentioned, to include those persons, to whom the corporation was under any enforceable obligation, as well as those to whom it was indebted. If the general investment of the directors with the power “to settle the affairs of the corporation” were to be regarded as qualified and as limited, with respect to the payment of claims against it, to those which constituted debts, in the strict legal sense of the word, the-legislature would be chargeable with a very grave inconsistency. It would have expressly retained all the remedies against a corporation for any liabilities incurred previous to its dissolution; while limiting the power of its trustees, upon a voluntary dissolution, to the consideration and payment of those liabilities only which arose upon contract. This would be a harsh construction and one which does not seem in harmony with the general scheme of legislation. If this had been the case of an individual wrongdoer, his death would’ not have caused the abatement of the cause of action for the wrong done . by him to the property rights or interests of the plaintiffs. That case has been expressly provided for and. the action would be maintainable against his executors or administrators. 2 R. S. 447, §§ 1, 2, and see Cregin v. Brooklyn Crosstown R. R. Co., 75 N. Y. 192. We do not think a discrimination has been intended in favor of corporations. The language of the section admits of the criticism that it fails to express clearly the intention that a liability upon tort is to be considered and met by the trustees; but, reading together § 5 of the Business Corporations Law and § 80 of the General Corporation Law, the construction is permitted that all persons, who have claims against the corporation, upon which it might be liable, should be. regarded as actual or possible creditors.

The interlocutory judgment should be affirmed, with costs; with leave, however, to, the appellants to answer the complaint within twenty days after service of the notice of the entry of the order upon our remittitur and on payment of costs.

All concur. Judgment accordingly.


author: O’Brien, J. Gray, J.

text:
    Frank S. Oakes, App’lt, v. The Cattaraugus Water Company, Resp't.

      (Court of Appeals,

      Filed November 2, 1894.)

    1. Corporations—Officers—Powers.
    Tlie president of a private corporation, who has full personal charge of its business, represents it and prima facie has power to do any act which the directors can authorize or ratify.
    2. Same—Ratification.
    Such a contract, made by him before the company had corporate existence, may be adopted and ratified by him in its behalf, when it has attained a legal existence.

      8. Contracts—Validity—Public policy.
    If the business of a private individual or corporation is threatened with, competition, it is not illegal or immoral for him to persuade his competitor to abandon an enterprise in which both cannot succeed and take employment with him in the business at a stated compensation.
    Appeal from judgment of the general term of the supreme court in the fifth judicial department, entered upon an order, which denied a motion by plaintiff for a new trial and ordered judgment in favor of defendant upon a decision of the court on trial at circuit non-suiting the plaintiff.

      William H. Henderson, for app’lt; D. K Powell, for resp’t.

       Reversing, 50 St. Rep. 922.

   O’Brien, J.

The trial court non-suited the plaintiff, and the principal question presented by the appeal is whether there was proof made which should have been submitted to the jury. The plaintiff made, a request to that effect, which was denied and an exception taken. The defendant is a corporation organized under the provisions of chapter 737 of the Laws of 1873 and the acts amendatory thereof and supplementary thereto for the purpose of supplying the village of Cattaraugus with water. The certificate of incorporation was executed on the 3d day of March, 1890, but not filed in the proper office until the 19th day of May following, at which date, it is assumed on both sides, that the defendant’s corporate existence begun. The statute requires the consent of the town authorities of the town where the operations of the corporation are to be carried on as a preliminary condition of its creation, and this was procured by the parties promoting the organization of the defendant on the 22d day of -February, 1890. The application for this consent was in writing, signed by the seven persons who afterwards became the incorporators, and bears date February 5, 1890, and proves that at that date, if not before, they intended, in case the application was granted, to form the corporation. One George N. Cowan, an attorney at law, seems to have been the principal promoter of the whole enterprise. His name appears first upon the written application to the town authorities for the consent, and in the certificate of incorporation, and is followed by that of his wife and brother with four other persons. Upon the organization of the defendant he and his wife and brother became respectively the president, secretary and treasurer of the corporation. This action was brought by the plaintiff to recover the sum of $1,000 upon a written agreement bearing date February 18, 1890, signed by the plaintiff and by Cowan as attorney for the defendant. The plaintiff’s difficulty in the case arises from the fact that this paper was executed, as will be seen from the dates, before the défendant had any corporate existence, and, therefore, in its inception, it was not the defendant’s contract or binding upon it in any form. By the terms of the instrument the defendant agrees to pay to the plaintiff the sum of $1,000 for his services to defendant in securing right of way, hydrant rental and placing investments and doing things pertaining to the construction of the waterworks for the village, to be paid at the completion of the work. It was further stated that unless the defendant constructed the works the agreement was to be considered and treated as null and void, but if it did construct then the plaintiff’s services for which the compensation was to be paid should consist in aiding and helping the defendant in the matters above specified without cash expense to him. It was shown at the trial that the defendant in its corporate capacity did construct and complete a system of waterworks for the village. The work was commenced about June, 1890, and completed before the commencement of this action. The defendant established an office in the village and retained it while the work-was in progress. Cowan was the president and manager of the business and had full discretion and charge, his- wife acting as secretary and his brother as treasurer of the corporation. The plaintiff, upon the request of Cowan, the president, performed services for the defendant of the kind and character described in the contract above mentioned. They do not appear to have been of a very important character and no proof was given in regard to their value, but, so far as appears, he performed all that was required of him. After the completion of tbe waterworks, Cowan on several occasions acknowledged the indebtedness to the plaintiff and promised to pay it. There is no proof in the record tending to show that the general powers possessed by Cowan as the president of the defendant were limited or restricted by by-laws or in any other way, and we must assume that he had all the power that the president and general managing agent of such a corporation could exercise in the transaction of the corporate business at the place where its operations were being conducted. The general powers of such an officer may be limited or restricted by the charter or by-laws of the corporation. These restrictions may not be binding on all persons dealing with the corporation under all circumstances, as secret and unknown instructions to a general agent of a natural person do not always bind persons dealing with the agent in ignorance of his actual powers. In this case the president, having full personal charge of the business which the defendant was organized to transact, represented the corporation, and prima facie he had power to do any act which tbe directors could authorize or ratify. Hastings v. Brooklyn Life Ins. Co., 188 N. Y. 473; 58 St. Rep. 63; Conover v. Mut. Ins. Co., 1 N. Y. 290; Booth v. F. & M. N. Bank, 50 id. 396; Leslie v. Lorillard, 110 id. 519; 18 St. Rep. 520; Holmes, Booth & Hayden v. Willard, 125 N. Y. 75; 34 St. Rep. 455; Patterson v. Robinson, 116 N. Y. 193; 26 St. Rep. 685; Rathburn v. Snow, 123 N. Y. 343; 33 St. Rep. 600; N. Y., Prov. & B. R. R. Co. v. Dixon, 114 N. Y. 80; 22 St. Rep. 684; Morawetz on Corporations, §§ 251-253. There can be no doubt, I think, that the contract which is the basis of this action was of such a character and the objects expressed npon its face were of such a nature that the president and general manager of the enterprise bad the power to make it in behalf of the corporation whenever it attained a legal existence. The corporation had resolved to do the work, which was put in charge of the president, who was the principal promoter in organizing it. He was on the ground directing the operations and must be assumed to have the power to do whatever was necessary in executing the corporate objects. It cannot be doubted that he had power to employ engineers and workmen to construct the works and to bind the company by contracts for labor and materials. He could also employ men to secure for the company rights of way, rentals for hydrants and the other things necessarily pertaining to the business, and if he could make contracts for that purpose, why could he not adopt and ratify one made by himself, though before the corporation was legally created, but in anticipation of what subsequently occurred in obtaining the consents and filing the certificate of incorporation? We think this was fairly within his general powers, and if he intended, in behalf of the corporation which he represented, by calling upon the plaintiff to do the things which he had agreed to do in the writing, to adopt and ratify the - agreement made before the incorporation, instead of making a new one, and the plaintiff intended to and did perform for the corporation the things specified in the agreement, there is no good reason why the corporation did not become bound by his action. Whether this was the intention and purpose of the president of the defendant and of the plaintiff was, under the circumstances of the case, a question of fact which should have been submitted to the jury. Ratification or adoption, which in this case mean the same thing, is largely a question of intention to be determined from facts and circumstances as one of fact, and the court was not warranted, under the circumstances, in disposing of the question as one of law.

But it is insisted that the contract, even if regarded as the corporate obligation, is void as against public policy. There was proof given at the trial tending to show that the plaintiff, before entering into the contract with Cowan, contemplated an application in his own name to the town authorities for permission to form a corporation to construct the works, and that the purpose of the agreement was to compensate him for consenting to abandon the enterprise and allow the defendant to obtain the consent and reap the benefit of the enterprise. It is alleged in-the complaint that at the time of entering into the agreement it was understood and agreed between the parties that in addition to the con-, sideratidn mentioned in the writing for the payment of the one thousand dollars, the plaintiff was not to prosecute or carry on the business for which the defendant was subsequently organized, and was not to organize any corporation for that purpose, or to ask or receive a franchise from the town authorities for that purpose. It was further alleged that the plaintiff kept and performed these conditions, which were not expressed in the writing, but fully understood between the parties, but did assist Cowan in his efforts to accomplish the purpose originally contemplated by the plaintiff. These allegations are, however, put in issue by the answer. The proof would have justified a finding by the jury that the plaintiff’s promise to abandon the enterprise and leave the field open to Cowan and his associates was an element that entered into the contract, and an inducement to its execution. No such purpose, however, appears upon the face of the contract. The consideration there expressed for the payment of money was services which the plaintiff could lawfully perform, and which it is claimed he did perform, for the defendant. The court was not warranted in holding, as matter of law, that the purpose of the contract was forbidden by public policy, or that it was made for a purpose other than that stated upon its face. If that question was in the case at all it was one for the jury, as the evidence was not conclusive but open to different inferences. But we think that this agreement, upon any view of the facts, does not come-within that class of contracts which are forbidden or are held void on grounds of morality or public policy. There was no purpose to suppress competition or bidding at any public sale or letting of a contract for public purposes or in restraint of trade or to influence the action of public officials. Assuming that both the plaintiff and Cowan intended to apply for ' the franchise, and that the latter persuaded the former to abandon his purpose and aid him in the manner mentioned in the contract, for the consideration promised, there was nothing immoral or that threatened the public interests or the public good in such an arrangement. If the business of a private individual or corporation is threatened with competition it is not illegal or immoral if one can persuade his competitor to abandon an enterprise in which both cannot succeed, and take employment with the one remaining in the business at a stated compensation.- Such an agreement fairly entered into is legitimate business. If the parties in this case deemed it- for the interest of both that only one application should be made for a franchise that could be granted to but one of them, the arrangement does not, as I conceive, violate any settled rule or principle of public policy. Diamond Match Co. v. Roeber, 106 N. Y. 473; 11 St. Rep. 47; Leslie v. Lorillard, 110 N. Y. 519; 18 St. Rep. 520; Tode v. Gross, 127 N. Y. 480; 40 St. Rep. 300; Watertown Thermometer Co. v. Poole, 51 Hun, 157; 20 St. Rep. 592; Cameron v. N. Y. & Mt. Vernon Water Co., 62 Hun, 269; 42 St. Rep. 912.

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

Gray, J.

(dissenting.)—If, at the time the agreement set forth in the complaint was made, there had been such a corporation as the Cattaraugus Water Company, then it would be quite conceivable that there might be a ratification by it of the act of a person standing in the relation to it of an officer or agent. Batification presupposes the doing of an act by an agent, which a principal could have authorized. It is defined as an agreement to adopt an act performed for us by another and is equivalent to an original authority to do the thing in question. But here Cowan represented no one but himself. He and others were proposing to associate themselves in a corporate project. He was a mere promoter and he had no principal. When the plaintiff entered into the agreement with Cowan, he was bound to inform himself as to whether the latter represented an actual principal. If he neglected to do so, his agreement was worthless, except so far as it imposed upon Cowan, individually, a liability for undertaking to act with no responsible principal behind him. Dunlap’s Paley on Agency, *374. We may assume that there was sufficient evidence dpon which a jury might have found that there was ratification, if there had been a contract made for the company; but it ought' to be perfectly manifest that, unless there had been in esse a corporation, de facto or de jure, which could have made Cowan its attorney or agent, there could not be such a thing as a ratification. The rule is stated in Morawetz on Private Corporations (§ 547) as follows, viz.: “A corporation is not responsible for acts performed, or contracts entered into, before it came into existence, by promoters or other persons, assuming to bind the company in advance.” Again, at § 549, the author says, that “a corporation cannot be charged with the acts or contracts of its promoters, by virtue of the technical doctrine of ratification. This doctrine ap-. plies only to acts performed on behalf of an existing principal.” These statements are amply borne out by the authorities cited by the author, and arc founded in clear reason. And see Caledonia, etc, R. R. Co. v. Helensburgh, 2 Macq. H. L. Cas. 391, 409. There may however, be an adoption of agreements made by promoters of companies by a formal acceptance; or, if it is' a case where the members of the corporation would be chargeable with knowledge of the contract, and had knowingly received the benefit of an engagement entered into by promoters, adoption might be implied. The adoption of such an agreement by a corporation is equivalent, of course, to the creation of a new agreement and is governed by all the rules applicable to the formation of a contract under the common law. 1 Morawetz Corps. § 549; I am unable to believe, and I know of no authority for holding that adoption, in such a case of a written contract could rest in implication from the mere statements or acts of the interested party who made it, with no evidence to show any knowledge or acquiescence on the part'of any other officer or member of the corporation. I think any other view would be a most hazardous one to take for the interests of shareholders in corporations.

Assuming that a corporation may become obligated by a contract, made for it before its incorporation, through acceptance or adoption, it should at least appear, in order to justify a verdict from the' facts,that those facts'established a knowledge by its agents, of its existence and of its terms; or that the benefits, the acceptance of which is relied upon to constitute adoption, were of that nature as to presuppose and to charge the company or its agents with knowledge of a contract with the person from whom derived.

In this case it is not proved that there was any formal or official action upon the agreement; or that any of the directors knew of such, outside of Cowan himself. There was nothing which /amounted to a representation by the defendant to plaintiff that the contract was subsisting and valid. Wilson v. West Hartlepool Co., 2 DeG., J. & S. *491. There may have been sufficient evidence in the case to warrant the submission to a jury of the question whether the defendant had not, through its chief officer and manager, become liable to pay plaintiff tbe value of his services, as the evidence might exhibit that value to be. But this is not such an action. The plaintiff rests his action solely upon the obligation, which the agreement set forth imposed upon the defendant, and if, as it is conceded, there could have been none imposed at the time, it could never have become one, in the absence of an adoption of the agreement. As I have said, this agreement, so far as the record discloses, was never brought to the knowledge of any of the directors, or of the members of the corporation, and.it is not at all easy to see what services the plaintiff actually did under it, before or after the company was formed which could possibly have led any one to suppose that he was under a contract with it, of the nature of the one in question, or of any other nature. We assume, however, that there were services rendered to and accepted by the defendant; but we hold that they were to be recovered for according to their value and that the contract produced by the plaintiff never became the agreement of the company so as to obligate it, absolutely and in all events, to pay him the sum stated therein, upon the completion of the water works.

For these reasons the j udgment should be affirmed, with costs.

Earl, Peckhám and Bartlett, JJ., concur with O’Brien, J.; Finch, J., concurs with Gray, J.; Andrews, Oh. J., not sitting.

Judgment reversed.


author: Earl, J.

text:
    Paul Williams, App’lt, v. William Hays, Resp’t.

      (Court of Appeals,

      Filed November 2, 1894.)
    1. Joint owner of vessel—Eights.
    Where a joint owner of a vessel, by contract with his co-owners, is to have absolute control and management of the vessel, he thereby becomes her owner pro hac vice.

    3. Same—Negligence.
    Where the vessel is lost through the negligence of such owner, though insane, he is liable to his co-owners for tbe loss.
    3. Negligence—Insane person.
    An insane person is as responsible forjhis torts as a sane man, except for those in which malice and, therefore, intention, actual .or imputed, is a necessary ingredient.
    4. Same.
    " As to such liability, there is no distinction between torts of non-feasance and of misfeasance—between acts of pure negligence and acts of trespass.
    Appeal from judgment of the .general term of 'the supreme court in the first judicial department, entered upon an order which affirmed a judgment in favor of defendant entered upon a verdict and affirmed an order denying a motion for a new trial, and also affirmed an order denying a motion for a re-argument.

      George A. Blade, for app’lt; William W. Goodrich, for resp’t.

      Reversing, 46 St. Rep. 100.

   Earl, J.

The defendant and others, among whom were Parsons and Loud, were joint owners of the brig “ Sheldon.” By an arrangement between the defendant and the other owners he took the vessel to sail on shares. He was to man the vessel, to pay the crew and to furnish the supplies, and he was to have one-half of her earnings, after certain deductions, for his share, -and the other owners were to have from him the other half, after certain deductions, for their share. He was to have the absolute control and management of the vessel, and became her owner pro hac vice. Webb v. Pierce, 1 Curt. 113; Thorp v. Hammond, 12 Wall. 416; Somers v. White, 65 Me. 542. The defendant, under the arrangement between him and the other owners, in no sense became their agent or servant. In Webb v. Pierce it was held that where a master hires á vessel on shares under an agreement to victual and man her, and employ her on such voyages as he thinks best, having.thereby the entire possession, command and navigation of her, he thereby becomes her owner pro hac vice, and the relation of principal and agent does not exist between him and the owners. The other cases are to the same effect. The defendant thus became the charterer or lessee of the ■ vessel and was responsible to the other owners for due care in her management, and so the trial judge held.

The case of Moody v. Buck, 1 Sand. 304, which holds that one co-owner of a vessel who takes and navigates her for his own-benefit, is not liable to his co-owners for her loss by his carelessness, even if correctly decided upon the facts there existing, is not applicable to a case like this, where the co-owner takes the vessel, not in his right as co-owner for the purpose of using his own, but. under an agreement with the other owners whereby he becomes the charterer, lessee or bailee of the vessel, and thus bound to some duty of care and fidelity. There can, however, be no question that that case was incorrectly decided, and the rule laid down therein is not consonant with reason or justice. I cannot find that it has ever been followed as authority in any subsequent case and it is in conflict. with many authorities. Sheldon v. Skinner, 4 Wend. 529; Chesley v. Thompson, 3 N. H. 9; Herron v. Eaton, 13 Me. 193; Martin v. Knowllys, 8 T. R. 145; Gillot v. Dossat, 4 Martin [La.], 203; Domat’s Civ. Law, § 1489; 1 Parsons on Maritime Law, 95; Ford’s Law of Merchant’s Shipping, 35, 45; Cooley on Torts, 328, 659.

The Sheldon was loaded with ice and started from the coast of Maine for a southern port. She soon encountered storms, and-tlie defendant for more than two days was constantly on duty, and then becoming exhausted, he went to his cabin, leaving the vessel in charge of the mate and crew. He took a large dose of quinine and laid down. The mate found that the rudder was broken and useless, and that the vessel could not be steered. He caused the captain to come on deck. He refused to believe that the vessel was in any trouble, and refused the help of two tugs, the masters of which saw the difficulty under which his vessel was laboring, and successively offered to take her in tow. They cautioned him that his vessel was gradually and certainly drifting upon the shore; and in broad day-light she did drift upon the shore without any effort on the part of the defendant or any of Ins crew to save her, and she became a total wreck. Parsons and Loud had insured their interest in the Phoenix Insurance Company, and it paid them the loss. It thus became subrogated to their claim, if any, against the defendant for his ngligence or misconduct in the management of the vessel, and it assigned that claim to the plaintiff. He, standing in the shoes of Parsons and Loud, brought this action against the defendant to recover damages for the loss of the vessel, alleging that it was due to his carelessness and misconduct.

The defendant claims that from the time he went to his cabin, leaving the vessel in charge of his mate and crew, to the time the vessel was wrecked, and he found himself in the life-saving station, he was unconscious and knew nothing of what occurred— that in fact he was from some cause insane, and, therefore, not responsible for the loss of the vessel. The case was submitted to the jury on the theory that the defendant, if sane, was guilty of negligence causing the destruction of the vessel, but if insane was not responsible for her loss through any conduct on his part which in a sane person would have constituted such negligence as would have imposed responsibility.

The important question for us to determine then is whether the insanity of the defendant furnishes a defense to the plaintiff’s claim, and I think it does not. The general rule is that an insane person is just as responsible for his torts as a sane person, and the rule applies to all torts, except perhaps those in which malice and, therefore, intention, actual or imputed, is a necessary ingredient, like libel, slander and malicious prosecution. In all other torts intention is not an ingredient, and the actor is responsible, although he acted with a good and even laudable purpose, without any malice. The law looks to the person damaged by another and seeks to make him whole, without reference to the purpose or the condition, mental or physical, of the person causing the damage. The liability of a lunatic for his torts, in the opinions of judges, has been placed' upon several grounds. The rule has been invoked that where one of two innocent persons must bear a loss, he must bear it whose act caused it. It is said that public policy requires the enforcement of the liability that the relatives of a lunatic may be under inducement to restrain him, and that tort feasors may not simulate or pretend insanity to defend their wrongful acts causing damage to others. The lunatic must bear the loss occasioned by his torts, as he bears his other misfortunes, and the burden of such loss may not be put upon others.

In Buswell on Insanity (§ 355) it is said: “Since in a civil action for a tort it is not necessary to aver or prove any wrongful intent on the part of the defendant, it is a rule of the common law that although a lunatic may not.be punishable criminally, he is liable in a civil action for any tort he may commit.”

In Cooley on Torts (98) the learned author says: “A wrong is an invasion of. right to the damage of the party who suffers it. It consists in the injury done, and not commonly in the purpose or mental or physical capacity of the person or agent doing it. It may or may not have been done with bad motive ; the question of motive is usually a question of aggravation only. Therefore,the law in giving redress has in 'view the case of the party injured, and the extent of his injury, and makes what he suffers the measure of compensation. * * * There is consequently no anomaly in compelling one who is not chargeable with wrong intent to make compensation for an injury committed by him; for, as is said in an early case, ‘the reason is because he that is damaged ought to be recompensed.’” And at page 100 he says : “Undoubtedly there is some appearance of hardship—even of injustice —in compelling one' to respond for that which, for want of the control of reason, he was unable to avoid; that it is imposing upon a person already visited with the inexpressible calamity of mental obscurity an obligation to observe the same care and precaution respecting the rights of others that the law demands of one in the full possession of his faculities. But the question of liability in these cases, as well as in others, is a question of policy, and it is to be disposed of as would be the question whether the incompetent person should be supported at the expense of the public, or of his neighbors, or at the expense of his own estate. If his mental disorder makes him dependent, and at the same time prompts him to commit injuries, there seems to be no greater reason for imposing upon the neighbors or the public one set of these consequences rather than the other; no more propriety or justice in making others bear the losses resulting from his unreasoning fury when it is spent upon them or their property, than there would be in calling upon them to pay the expense of his confinement in an asylum when his own estate is ample for the purpose.”

In Shearman and Redfield on Negligence (§ 57) it is said: “Infants and persons of unsound mind are liable for injuries caused by their tortious negligence; and, so far as their responsibility is concerned, they are held to the same degree of care and diligence as persons of sound mind and full age. This is necessary, because otherwise there would be no redress for injuries committed by such persons, and the anomaly might be witnessed of a child, having abundant wealth, depriving another of his property without compensation.”

In Reeves’ Domestic Relations (386) it is said : “Where the minor has committed a tort with force, he is liable at any age; for in case of civil injuries, with force, the intention is not regarded ; for in such case a lunatic is as liable to compensate in damages as a man in his right mind.”

The doctrine of these authorities is illustrated in many interesting cases. Bullock v. Babcock, 3 Wend. 391; Hartfield v. Roper, 21 Id. 615; Krom v. Schoonmaker, 3 Barb. 647; Conklin v. Thompson, 29 Id. 218; Cross v. Kent, 32 Md. 581; Neal v. Gillett, 23 Conn. 437; Hutching v. Engel, 17 Wis. 230; Brown v. Home, 9 Gray, 84; Marion v. Devlin, 132 Mass. 87; Beales v. Lee, 10 Barr, 56; Humphrey, v. Douglass, 10 Vt. 71; Morse v. Crawford, 17 Id. 499; Cross v. Andrews, Croke, Elizabeth, 622; Jennings v. Randall, 8 T. R. 336.

In Bullock v. Babcock, Judge Marcy, writing in a case where an infant twelve years old was held liable for putting out one of the eyes of another infant, said; “ The liability "to answer in damages for trespass does not depend upon the mind or capacity of the actor; for idiots and lunatics are responsible in the action of trespass for injuries inflicted by them.”

In Krom v. Schoonmaker, it was held that a lunatic may be sued for an injury done to another, because the intent with which the act was done is-not material. There the action was against a justice of the peace for false imprisonment for issuing a warrant without any complaint, by virtue of which the plaintiff was arrested.

In Cross v. Kent, it was held that a lunatic or insane person, though not punishable criminally, is liable to a civil action for any tort he may commit; that in an action against a party for setting fire to and burning a barn, neither evidence of his lunacy, nor that the burning was the result of accident, is admissible in mitigation of compensatory damages.

In Neal v. Gillett, in an action on the case for damages caused by the negligence of the defendants, who were severally of the ages of thirteen and sixteen at the time of the injury, it was held that where the plaintiff claims only actual damages, the youth of the defendants is not to be taken into consideration in determining the question of their negligence.

In Hutching v. Engel, it was held that an infant, though under seven years of age, was liable in an action of trespass for breaking and entering the plaintiff’s premises and breaking down and destroying his shrubbery and flowers.

In Karow v. The Continental Insurance Company, it is said in the opinion : “ While the burning of his own property by an assured under no restraint of duty and incapable of care, and without any intent or design, does not relieve the company from liability, yet the same act of burning another’s property might subject such person to damages therefor, not on the ground of negligence, as that word is usually understood, but, in the language of Chief Justice Gibson, ‘on the principle that where a loss must be borne by one of two innocent persons, it should be borne by him who occasioned it’ ”

In Brown v. Howe, an insane person carelessly set fire to the dwelling house of his guardian, and while it was held that the guardian could not be allowed the amount of his damages in his probate account, it was held that his only course was to sue the administrator of the lunatic who had died, in a court of law, and have a judgment fixing his damages, and collect it from the assets, if the estate was solvent; if not, to share with the other creditors.

In Marion v. Devlin, it was held that a lunatic was civilly liable for an injury caused by the defective condition of a place, not in the exclusive occupancy and control of a tenant, upon real estate of which he is the owner, and of which his guardian has the care and management.

In Beales v. Lee, it was said by Gibson, Oh. J.: “ As an insane man is civilly liable for his torts, he is liable to bear the consequences of tiis infirmity, as he is liable to bear his misfortunes, on the principle that where a loss must be borne by one of two innocent persons, it shall be borne by him who occasioned it”

In Morse v. Crawford, in an action for tort, it was held that the fact that the defendant was insane at the time of committing the injury was no defense to the action, and that if the action be for destroying property intrusted to the defendant, it is no defense that the plaintiff, at the time of delivering the property to the defendant lcnew that he was insane. In the opinion of the court it is said: “ It is a common principle that a lunatic is liable for any tort which he may commit, though he is not punishable criminally. When one receives an injury from the act of another, this is a trespass, though done by mistake or withont design. Consequently no reason can be assigned why a lunatic should not be held liable.”

In Jennings v. Randall, Lord Chief Justice Kenyon said: “If an infant commit an assault, or utter slander, God forbid that he should not be answerable for it in a court of justice.” Lawrence, J., also writing in that case, mentioned the distinction between negligence and an act done by an infant; and he held that the same rule would have to be applied if an action were brought against an infant for negligently keeping the. plaintiff’s cattle, by which they died, as would be applied if the declaration charged the infant with having given the cattle bad food by which they died.

There can be no distinction as to the liability of infants and lunatics, between torts of non-feasance and of misfeasance— between acts of pure negligence and acts of trespass. The ground of the liability is the damage caused by the tort. That is just as great whether caused by negligence or trespass; the injured party is just as much entitled to compensation in the one case as in the other, and the incompetent person must, upon principles of right and justice and of public policy, be just as much bound to make good the loss in the one case as the other; and I have found no case which makes the distinction. That infants and lunatics are liable for damage to property caused by their negligent acts, was asserted in several of the authorities above cited; and it has never been doubted that at common law an action of trover would lie against one intrusted with the personal property of another who destroys it, whether the destruction be by á negligent act or a willful tort.

I sum up the result of my examination of the authorities as follows: This vessel was intrusted to the defendant—not as agent—but as to the other owners as charterer, lessee or bailee, and if he caused her destruction by what in sane persons would be called willful or negligent conduct, the law holds him responsible. The misfortune must fall upon him and not upon the other owners of the vessel.

If . the defendánt had become insane solely in consequence of his efforts to save the vessel during the storm, we would have had a different case to deal with. He was not responsible for the storm, and while it was raging his efforts to save the vessel were tireless and unceasing, and if he thus became mentally and physically incompetent to give the vessel any further care, it might be claimed that his want of care ought not to. be attributed to him as a fault. In reference to such a case wo do not now express any opinion.

If it could be held that the obligation of the defendant to take due care of the vessel while she was in his possession, under his contract with the other owners, was an obligation springing out of his contract, and thus a contract obligation, such a view of the case would not aid him. He was sane when he entered into the contract, and his subsequent insanity would furnish no defense to an action for a breach of the contract. Oakley v. Morton, 11 N. Y. 25; Booth v. Spuyten Duyvil Rolling Mill Co., 60 id. 487; Evans v. United States Life Insurance Co., 64 id. 304; Spaulding v. Rosa, 71 id. 40.

If it should be found upon the new trial of this action that the defendant’s mental condition was produced, wholly by his efforts to save the vessel during the storm, and it should, therefore, be held that no fault could be attributed to him on account of what he personally did or omitted to do, then the question would still remain whether the carelessness of his mate and crew, who were his servants, could not be attributed to him, and his liability be thus based upon their carelessness. They did nothing whatever to save the vessel. They did not even expostulate with him or tender him any advice ór a word of caution, and yet-the mate saw what the captains of the tugs saw at a distance, that something was the matter with him. It is difficult to perceive how they could have failed to see that he was either incompetent to manage the vessel, or that he was willfully wrecking her. We leave the effect of their conduct upon the defendant’s liability to be determined, if it should become necessary, upon the new trial, simply saying that the question is worthy of careful consideration, whether the defendant can allege his own incompetencv, and at the same time claim that for any reason the mate ought not to have taken control of the vessel.

The case of Hayes v. Phenix Insurance Co., 57 Supr. Ct. R. 199; 25 St. Rep. 123; aff’d, 127 N. Y. 656; 38 St. Rep. 1015, which seems to have controlled the decision below, is not an authority for the defendant. There he brought an action against the insurance company to recover the amount of his insurance upon this vessel, and his mere carelessness, whether sane or insane, was no defense to such an action. It is an unquestioned rule of law that an insurance company cannot successfully defend an.action upon its policy to recover for a loss by showing that the insured destroyed the property while insane, or that its destruction was caused b3r the carelessness of his agents and servants. The liability of the insured to respond in damages for the loss or destruction of the property of another owner stands upon different principles. Liverpool T. Co. v. Phœnix Ins. Co., 129 U. S. 438; Karow v. Continental Ins. Co., 57 Wis. 56.

Since writing the above, suggestions have been made by some of my brethren which should receive some attention.

The fact that the defendant was a part owner of the vessel can play no part in this discussion. He did not take the vessel as part owner, but under the contract with the other owners; and as to them, his duties and obligations were such as spring from the relation created by that contract. Further, he was the minority part owner, and the others were the majority part owners, and as such, had the right and the power to control the vessel against his will. Ward v. Ruckman, 36 N. Y. 36; Gould v. Stanton, 16 Conn. 12; The William Bagerly, 5 Wall. 406; McLochlin’s Merchant Shipping, 89. In Ward v. Ruckman it was held that the majority owners of a vessel have the right to displace the master at their pleasure, though he be in possession as part owner. In making their contract with the defendant, the other part owners were exercising their right as the majority part owners. Non constat, but that they would, except for the contract, have displaced the defendant and appointed some other person master of the vessel. Therefore, as I have before said, he must be treated as the charterer, lessee or bailee of the vessel.

I quite agree, and no one in this case has contended for more, ■that the defendant was bound, in the navigation and use of the vessel, to bestow only ordinary care, to wit: Such care as a reasonably careful and prudent owner would ordinarily give to his own vessel. Such is the standard of care set up for all bailees of personal property for hire. But what is that standard? It is not such care as a lunatic, a blind man, a sick man, or a man otherwise physically or mentally imperfect or impotent could give. Such a man is not the jural man of ordinary prudence, and he does not furnish the standard. The standard man is no individual man, but an abstract or ideal man of ordinary mental and physical capacity and ordinary prudence. Tim particular man who duty of care is to be measured does not furnish the standard. He may fall below it in capacity and prudence, yet the law takes no account of that, but requires that he should come up to the standard and his duty be measured thereby.

So when we have defined, as above, the duty of care resting upon the defendant, we have made no progress in the solution of the question here involved, for it is conceded that he took no care whatever. It is sought, however, to excuse him because he was insane and incapable of care; and the question, and, in the end, the sole question for us to determine, is whether that excuse is a good one; and I have heard no argument to sustain it. It is unquestioned that an insane person is civilly liable for his active torts: and is there then any reason for saying that he is not liable for his -negligent torts? To uphold this judgment, we must en-graft upori the general rule the exception or qualification that he is not liable for his negligent torts. If the defendant had taken a torch and fired the vessel, he would have been liable for her destruction, although his act was unconscious and accompanied by no free will. But if he had negligently fired the vessel and thus destroyed her, being incapable from bis mental infirmity from exercising any care, the claim must be that he would not be liable. Such a distinction is not hinted at in any authority, has no foundation whatever in principle or reason, and cannot stand with authorities I have before- cited.

My conclusion, therefore, is that the judgment should be reversed and a new trial granted, costs to abide event.

All concur, except Peckham, Gray and O’Brien, JJ., dissenting. Judgment reversed.


author: Ward, J.

text:
    The People ex rel. John Lardner, Pl’ff, v. Samuel A. Carson, Def't.

      (Supreme Court, Niagara Circuit,

      Filed November, 1894.)

    1. Election of officers—Constitutional law.
    Tlie Constitution, as it existed in 1392, did not require the voter to vot in the town or the ward of his residence, but simply in the election dis trict where he resided.
    2. Same—Election district.
    Though the election district for the voters of the town of Lockport was • located in the city of Lockport, yet such voting place was, in law and in fact, in the district of the voter and of his residence.
    3. Statutes—Local—Title.
    Where a local act expresses a general object, all matters fairly and reasonably connected with it, and all measures which will or may facilitate its accomplishment, are proper to be incorporated in the act and are germaine to the title.

      4. Same—Retroactive.
    Constitutions are not to be construed as having a retroactive effect.
    5. Same—Repeal.
    It will not be presumed that the legislature intended, by a general act, to repeal a special act by implication.
    6. Same.
    No such presumplion will arise, especially where the general act specifies what laws are thereby repealed, but does not include the act in question.
    7. Same—Construction.
    Where the legislature, the people and the officers, whose duty it was to execute certain laws, have given to them a practical construction, upholding their validity, it may be considered in determining the question of their constitutionality.
    Action to establish the right of John Lardner, the relator, to the office of superintendent of the poor of Niagara county, and to put him in possession of the office.

      W. H. Ransom, for People and relator; Charles Hiclcey and John M Pound, for deft.
   Ward, J.

This action was tried by the court, a jury being waived by the parties. The facts are undisputed, and are as follows :

On March 11, 1808, Niagara county, in this state, was created, and the legislature on the 2d day of February, 1824, by chap. 26 of the Laws of that year, erected the town of Lockport, defining its boundaries. On March 26, 1829, the legislature incorporated the village of Lockport (chap. 78, Laws of 1829), taking the territory for said village from the heart of the town of Lockport, leaving the residue of the town entirely surrounding the village and creating it “a body politic and corporate,” and granting to it the powers ordinarily vested in incorporated villages. This act was silent as to the people of the remaining portion of the town voting within the village, neither permitting nor prohibiting it

From 1829 to 1863 the voters of the town of Lockport held their elections and. town meetings at convenient points in the village, duly selected by the officers charged with that duty.

By chap. 355 of the Laws of 1865, the legislature incorporated the city of Lockport, and the act of incorporation was entitled “An act to incorporate the city of Lockport.” The territory incorporated as a city was the village of Lockport and some additional territory taken from the town of Lockport;. the town surrounding the city on all sides.

By the second section of title nine of that act, it was provided that “the town of Lockport shall continue to be one of the towns of Niagara county, embracing all the territory included in the present town of Lockport excepting that which is included within the limits of the city corporation organized by this act.” Provisions were made whereby certain rights, privileges and liabilities of the village of Lockport were reserved, and by the eighteenth section of said title it was further provided “ that town meetings and general elections of the inhabitants of the town of Lockport as hereby constituted, may be held at such places in the city of Lockport as the supervisor of said town and the mayor of said city may appoint, with the same force and effect as if held in the said town. And it shall be lawful for the town clerk of said town to hold his office in and reside within the said city. The business done at said office may be done in said city.”

On April 10, 1886, the legislature passed an act (chap. 120, Laws of 1886) entitled “An act to revise the charter of the city of Lockport.”

The charter of the city was revised to some extent and important changes made, but no new territory was added, and § 18 above quoted was retained in the revised charter, being § 269 thereof. And from the time of the incorporation of the city down to and including the election of 1892, a period of 27 years, the town meetings and elections of the town of Lockport were duly held by the proper officers under appointments made pursuant to this provision of the statute at convenient places in the city of Lockport. The officers whose duty it was to provide polling places for the electors provided no other places than the ones in the city of Lockport. So that the voters of the town, while Lock-port was a village and after it became a city and down to and including the election of 1892, had to vote at the places appointed in the village and city or be disfranchised and not vote at all And up to this time no complaint had been made or legal action taken in regard to said elections being held as above stated, but the elections seem to have been conducted to the entire satisfaction of the people.

At the general election held for the year 1892, on November 8th, there was to be chosen in Niagara county a superintendent of the poor for the county for the term of three years, beginning January 1st, 1893; for which the relator, John Lardner, and the defendant, Samuel A. Carson, were candidates and were voted for and received the votes of electors in said county, and at said election. The votes cast by the electors of the several election districts were returned in the usual form and the statements thereof signed by the inspectors of election, of the several election districts in said county, respectively, were canvassed by the county board of canvassers, and said board declared that there had been cast by the electors of said county, at said election for said office as follows: For Samuel A. Carson, 6,755 votes; for John Lardner, 6,747 votes, which result was declared and certified by the board of canvassers and they further certified that the defendant was duly elected to said office and issued a certificate of election to him and he entered upon the duties of his office and has since continued in said office and has received the salary thereof.

At the time of the election in 1892 the town of Lockport outside of the city had been divided into two election districts. The polling place for district No. 1 appointed under the charter was held at a store building known as No. 11 on the north side of Main street in the city. The polling place for district No. 2 was in a store building No. 49 east side of Locust street in the city. Only voters of the town of Lockport voted at said polling places. The polling places for the city were distinct from those and none of the voters of the city voted at the town polling places nor did the voters of the town vote at the city polling places. The polling places for the town were designated as well by the town board who met for that purpose. The total vote for superintendent of the poor at the town polling places was 514, of which the relator had 178, and the defendant had 336, leaving a majority for the defendant of 158. It is apparent, therefore, that if the vote of the town of Lockport is rejected, the defendant Carson was not elected, as his majority was barely eight in the whole county, giving liim the benefit of the vote of the town of Lockport.

It is not claimed that there was any fraud at the election or any illegal votes cast at the polling places where the voters of Lockport exercised the elective franchise, nor was it claimed that the votes as cast did not represent the wishes of the voters.

The relator was a resident of the city of Lockport, aware of the proceeding of the election for the town and took no steps affecting such election until after the result was declared and the certificate awarded to the defendant.

It is now claimed by the relator that the election held in the city for the town were invalid and the votes thereat void for four reasons:

First. Yoid under § 1, of art. 2, of the state Constitution, which is as follow's: Every male citizen of the age of twenty-one years who shall have been a citizen for ten days and an inhabitant of this state for one year next preceding an election, and the last four months a resident of the county, and for the last thirty days a resident of the election district in which he may offer his vote, shall be entitled to vote in the election district of which he shall at the time be a resident and not elsewhére for all offices,” etc., and that at the time the act of the legislature in permitting the citizens of Lockport to vote in the city is unconstitutional.

Second. That the act is invalid and of no effect because the title of the revised charter of the city does not express the purpose of the act in relation to permitting the voters of the town of Lock-port to vote in the city, and it embraces more than one subject, and is in violation of art. 8, § 16, of the Constitution, which provides that “ no private or local bill which may be passed by the legislature shall embrace more than one subject and that shall be expressed in the title.”

Third. That the clause in the city charter providing for the elections of the town is unconstitutional under art. 8, § 18, of the Constitution, which provides among other things that the legislature shall not pass a private or local bill in regard to “ the opening and conducting of elections or designating places of voting.”

Fourth. That the section of the charter in relation to voting was repealed by the general election law of 1892, chap. 680, which provided another method.

If the relator’s contention prevails the determination of the electors of Niagara county at the election in 1892 so far as it concerns the superintendent of the poor must be annulled and .set aside, and the voters of the town of Lockport disfranchised ; and it will follow that those voters had not constitutionally exercised the right of suffrage for over twenty-seven years.

A result so disastrous and far reaching should not be permitted except for the gravest reasons.

The voters of the town of Lockport were endowed by the Constitution with the right of suffrage. The machinery by which that right was to be exercised under the Constitution was to be provided by the legislature.

The village and city of Lockport were carved out of the town leaving the remaining portion of the town a rim around the city where the voters dwelt and great inconvenience would result to them if in consequence of the creating of the city they were not permitted to vote at the central portion of the territory of the original town.

The legislature therefore in taking a portion of the town to make the city, had the subject of this inconvenience before them at the time of the change created by the city charter, and provided for it.

It will be observed that the Constitution as it existed at the time of this election does not require the voter to vote in the town or the ward of his residence as was required by the Constitution of 1821, but simply requires him to vote in the election district in which he resides. The Constitution does not define what an* election district is or its boundaries but leaves that to the Legislature. The legislature has power in defining an election district to devolve that duty upon subordinate agencies and that is necessarily so as it would be impracticable for the legislature to do so, otherwise.

The effect of the legislative action in this case is that in taking the territory of the city from the town and depriving its people of the benefits thereof there has been reserved the right of the people to vote as theretofore at convenient places in the town as originally constituted and by such reservation tbe place of voting in the city to be selected under the act is a part of the election district of the voters of the town of Lockport and where they reside.

Before the incorporation of the city and while the village existed, no legal objection existed to the voters of the town voting in the village at any point that should be designated by the proper officers. The jurisdiction of the village over the territory embraced in it was simply superadded to the town jurisdiction. The authority of the town remaining in full force except that given to the village. It is notorious that in most of the incorporated villages of this state town elections are held, those villages usually being in the central portion of the town where it is most convenient for the voters of the town to assemble. "When the city was incorporated this right of the town voter was not taken awajq but was expressly reserved and re-affirmed in the charter of the city so that the voter of the town never lost or surrendered the right to vote anywhere in the city that should be designated by the proper officer for that purpose. It was a fundamental condition of the incorporation of the city that that right should remain unimpaired to the voters of the town and so far as that right went the old town remained the same as though neither village nor city was incorporated, and hence it follows that the voting place selected was in law and in fact in the district of the voter and of his residence.

Therefore this case is different from the one which the learned counsel for the relator has assumed exists. His assumption is that the legislature has taken the town voter out of the district of his residence and placed him in another in violation of the Constitution whereas the legislature only left the voter where it found him and his original election district unchanged.

Again the legislature in creating an election district is not bound by town lines. It can make a district of contiguous territory any where in the county. The omission of towns as provided in the Constitution of 1821, from the later Constitutions is significant in this regard.

The legislature can make a district from parts of several towns or of a part of a city and a town, or a village and a town and all this will be constitutional. Has the legislature, in effect done more in this instance than to provide that the election district of the voters of the town shall embrace portions of the city ?

Similar legislation to that contained in the original and revised charter of the city, upon this subject, has obtained iti other cases, the legislature by § 25 of chap. 478 of the Laws of 1893 has provided that the town of Olean may hold its annual and special elections for town officers and town meetings within the coiporatc limits of the city of Olean, etc. The city of Olean was taken from the town of Olean and by chap. 134 of the Laws of 1870 it is provided that Indians being qualified voters residing upon the land of any tribe in the state may vote in the election district nearest their place of residence in the same town at any election therein.

A statute should not be declared unconstitutional except in a very clear case and particularly so where the effect of such a declaration is to deprive the citizen of a substantial right.

Every presumption is in favor of the constitutionality of the acts of the legislature. * * * It is only in cases of clear and substantial departures from the provisions of the fundamental law that courts will declare acts of the legislature invalid.

Gilbert Elevated Railway Company v. Anderson, 3 Abb. N. C. 434; The People ex rel. City of Rochester v. Briggs, 50 N. Y. 553.

A polling place for a township maybe legally established in an adjacent borough. In re Election Inspection (P. A. Com. Pl.) 2 P. A. Dist. R. 299.

In Peard v. State (Neb.), 51 N. W. 823, a commissioner district of a county included a part of one of the wards of the city. The district was subdivided for election purposes in such manner that the voters thereof who resided within the wards could not vote within the district, the only voting place in said ward being outside of the district. At a general election certain residents of the district and also of the ward, who were legal voters of the district, voted at the voting place of said ward. It was admitted that all of the votes were cast by legal voters of the district, at the only voting place provided for them, and that the election was in all respects legally conducted. Held, that the voting by said electors outside of the commissioner’s district was a mere irregularity and that the votes should1 be counted. The court in this case seems to have proceeded upon the principle that the voter was not to be deprived of his suffrage because the authorities, whose duty it was to designate a legal place for him to vote, had failed in that duty. Indeed, many cases can be found where elections have been sustained at places different from the places appointed in the absence of fraud or imposition upon the voters as in the case of Dale v. Irwin, 78 Ill. 170, where the election judges had appointed a store for the election which the owner would not permit to be used, and the voters repaired to a building near by and voted there.

In People v. Lang, 33 Cal. 55, it was held that an incorporated city lying in parts of two townships may be laid off into election districts by making one or more districts in that part of the city lying in each township. The first contention of the relator, therefore, cannot be sustained.

As to the second objection that the purpose of the legislative act is not declared in the1 title of the revised charter, reference must be had to both the original and revised charter. The purpose of the Constitution in requiring the subject of the act to be embraced in the title is to have a statement broad enough in the title to specify the subject matter of the act, and the rule in such cases is well stated in the Hatter of the Petition of Knaust, 101 N. Y. 194, that “ where it expresses a general object it must now be considered as a settled rule of construction that all matters fairly and reasonably connected with it and all measures which will or may facilitate its accomplishment are proper to be incorporated ;ip the act and gerrnain to the title.” Citing, People ex rel. City of Rochester v. Briggs, 50 N. Y. 553; In re Mayor, id. 504; In re Department of Public Parks, 86 id. 437; In re Upson, 89 id. 67; Water Commissioners of Clinton v. Dwight, 9 id. 101, to which, authorities may be added Van Brunt v. Town of Flatbush, 128 N. Y. 50; 37 St. Rep. 824; The Wrought Iron Bridge Company v. The Town of Attica, 119 N. Y. 204; 28 St. Rep. 973; In the Matter of the Application of the Mayor, etc., to Acquire a Public Park, 99 N. Y. 569.

The subject stated in the title of the original act of 1865 was to incorporate the city of Lockport, and the subject stated in the acts of revision of 1886 was to revise the charter of the city of Lockport. If a city is to.be incorporated, territory must be taken for that purpose, and it follows that the rights and interests of the people of that territory, or of the town or place from which it is taken, is a subject that may reasonably be embraced in or be connected with the subject of incorporation. It would be difficult to find a statement of the purpose of the act more comprehensive than the one here stated.

Now, if the time comes when you are to make a revision of the charter or to change the act incorporating the city, a clearer or more comprehensive statement could not be made than was adopted in this case to revise the charter, nor can it be said that two subjects are embraced in this act, within the meaning of the cases, or of the Constitution, because the creation of this city, defining its territory, adjusting the rights of the people of the territory with reference to the changes made necessary by the incorporation of the city, are but one subject although they may relate to different matters connected’ with the same subject. It must, therefore, be held that this contention of the relator is unfounded.

The third objection is also without merit. The provision of the Constitution, art. 3, § 18, forbidding the legislature passing a local bill designating the places of voting was first inserted in the Constitution in 1875, ten years after § 18 of the original charter authorizing the voting in the city, had been enacted. The revision of the charter in 1886 did not change that section except to give it a different number in the revision of the charter. So that it is not affected by the constitutional provision invoked.

Constitutions are not to be construed as having a retroactive effect.

If the revision of the charter is to be regarded as an amendment of this section, it is valid because a charter existing before the constitutional prohibition was adopted, may be amended after-wards. Reed, v. Smidt, 39 Hun, 223.

If § 18 is to be regarded as re-enacted in 1886, that does not repeal by implication that section in the act of 1865, but it stands as of the date of the original enactment. Powers v. Shepard, 48 N. Y. 540.

The fourth and last objection that the section of the charter providing for the election in the city was repealed by the general election law of 1892 is equally untenable. The general election law do.es not in terms repeal that provision of the charter, and it will not be presumed that the legislature by a general act intended to repeal this special act by implication. This conclusion is strengthened by the fact that the'general election law specifies what laws are thereby repealed, and does not include the act in question.

The proposition here submitted is sustained in the following cases: People v. Quigg, 59 N. Y., 83; Whipple v. Christian, 80 id. 523; Buffalo Cemetery Association v. Buffalo, 118 id. 61; 27 St. Rep. 749; Aldinger v. Pugh, 57 Hun, 181; 32 St. Rep. 513; Brown v. Duane, 60 Hun, 98; 37 St. Rep. 691; Van Denburgh v. The Village of Greenbush, 66 N. Y. 1.

Opinion of the attorney general,' Rosendale, rendered in this matter on the date of September 2, 1892:

■ In the determination of this case weight must be given to the fact that for more than quarter of century the acts of the legislature in question has been acted upon, executed and sustained by all the parties interested, and by all the officials whose duty it was to carry out their purpose and accomplish their execution without dissent or exception from any source whatever until the commencement of this action, while, pei'haps, the people cannot strictly be estopped by tlie longest acquiescence in unconstitutional legislation yet it may be said that the legislature and the people, and the officers whose duty it was to execute these laws, have given a practical construction to them, upholding their validity which may be.considered in determining the question of their constitutionality and as bearing upon this question. See Bastón, v. Piclcersgill, 55 N. Y". '310 ; The People ex rel Williams v. Dayton, id. 367.

The views above expressed lead to the cpnclusion that the plaintiffs cannot maintain this action and the complaint must be dismissed upon the merits with costs.