author: Daniels, J.:

text:
    THE EXCELSIOR GRAIN BINDER COMPANY, LIMITED, Appellant, v. GEORGE H. STAYNER, Respondent.

      Subscription — payment of the ten per cent, essential to its validity.

    In an action brought to recover the amount subscribed for certain shares of stock in the plaintiff, a corporation organized under chapter 611 of the Laws of 1875, it appeared that at the time the defendant signed the subscription book, he delivered to the commissioners authorized to receive subscriptions his check for ten per cent of the amount of his subscription, but afterwards stopped payment of the check, and no part of his subscription was ever paid.
    Chapter 611 of 1875 provides that “no subscription shall be received unless at the time of making it the person so subscribing shall pay to said commissioners ten per cent of the par value of the stock subscribed for, in cash.”

      Held, that the action could not be maintained, as it was essential to the validity of the subscription that the ten per cent should be paid.

      Semble, that a subscription is not invalid because a short interval of time occurs between the actual signing of the subscription book and the payment of the money.

      Appeal by the plaintiff from a judgment, recovered on a trial before the court without a jury.

      Ludlow Fowler, for the appellant.

      D. M. Porter, for the respondent.
   Daniels, J.:

This action was prosecuted for the recovery of the sum of $5,000, being the amount of the defendant’s subscription for 100 shaies of the capital stock of the plaintiff. These shares were of the par value of fifty dollars each, and the subscription by which the defendant agreed to take them, was made before the company was completely organized. The company was incorporated under the authority of chapter 611 of the Laws of 1875. The certificate required for that purpose was filed, and the persons making it were empowered to open books for subscriptions to the capital stock, as that has been provided for by section 4 of this act. And the subscription made by the defendant was taken in the course of the proceeding for that purpose so authorized. But neither at the time when the subscription was made, nor at any time after that, did he pay to the commissioners any part of the amount for which the stock was after-wards to be issued to him. All that was done wras to subscribe for the stock, and deliver his check for ten per cent of the amount of the subscription. After the company was organized the board of directors declared the subscriptions to the capital stock to be due and payable, and because of a failure to pay on the part of the defendant, this action was brought against him for the recovery of the amount. It was resisted chiefly because of the ^mission of the defendant to make the payment, which the statute has required for the purpose of constituting a complete subscription to the stock of such a corporation. The provision of the a'ct upon this subject is, that the commissioners shall proceed to open books for subscriptions to thé capital stock of such corporations, but no subscription shall be received unless at the time of making it the person so subscribing shall pay to said commissioners ten per cent of the par value of the stock subscribed for in cash. -(Laws 1875, chapter 611, p. 756, sec. 5.)

The court at the trial held that this requirement had not been observed, that the execution and delivery of the subscriber’s check for the ten per cent was not a payment of the amount of it in cash, and for that reason the subscription was ineffectual, and he never became liable upon it. Before the check was presented for payment it was countermanded by the defendant, and nothing in fact was ever received, either by the commissioners or the company itself, on this subscription. The provision contained in this act, declaring how the payment shall be made for the purpose of completing the subscription, is practically the same as that contained in the statute relating to the formation of limited partnerships. There the contribution made to the capital by the special partner is required to be paid in cash. And in the case of Durant v. Abendroth (69 N. Y., 148), it was held that a delivery of a check was not a compliance with what the law required to be done for the purpose of forming such a partnership. And as the act under which the plaintiff was incorporated, has been enacted upon this subject in terms practically identical in their effect, this decision must be accepted as controlling in this case. A different view of the effect of a check seems to have been taken in the case of Thorp v. Woodhull (1 Sandf. Ch. Rep., 411). But as this authority is subordinate to that pronouncing the judgment in the preceding case, it cannot properly be followed in the determination of this appeal. As the language employed in the enactment of this statute has been construed, it can be satisfied only by a payment in cash, or its actual equivalent. The object of the law in making this requirement was to prevent the organization of corporations upon mere paper capital. And the security of persons dealing with them require that such organizations should not be permitted. If a check could be received as a compliance with what the law has required on this subject from one person it could be from all, and the consequence of such a construction would be that a corporation might be organized without receiving a single cent of actual capital. That would induce the existence of fraudulent corporations which it must have been the object of the legislature by means of this provision to prevent. It is a wholesome and proper restraint, and should be observed and enforced according to the fair import of the terms by which it has been created. In no proper sense of those terms can the unpaid or uncertified check of the subscriber be accepted or received as cash. And for that reason the provision, contained in this statute, was not complied with at the time when the defehdant’s subscription was made. A similar provision is contained in the general railroad laws of the State. (2 R. S. [5th ed.], 669, sec. 4.) And in the case of Beach v. Smith (28 Barb., 254) it was intimated that the ten per cent required to he paid at the time of the subscription might be received in a check or sight draft. But whether it could or not was a point not presented by the case for the determination of the court, and, for that reason, what was said upon this subject cannot be accepted as authority. In that case as well as the case of the Ogdensburg Railroad Company v. Davis, mentioned in the opinion, the amount required to render the subscription valid, was in point of fact finally and actually paid, and while this was not a formal compliance with what the statute had required it was substantially so, and the transactions were sustained because the payments had actually been made in fact. This was the view which was taken in the further consideration of the case of Beach v. Smith (in the Court of Appeals, 30 N. Y., 116), and for that reason the judgment of the Supreme Court was there affirmed. No binding authority has been found allowing the payment required by the statute on such a subscription to be dispensed with. It must be made either in cash, or its equivalent actually passing into the hands of the commissioners. Neither was done in this case, and therefore what the statute has declared to he necessary, was not in this instance observed.

Because of this failure no lawful subscription was made by the defendant for the stock of this corporation. The terms of the statute are clear and explicit that no subscription shall be received by -the commissioners, unless at the time of making it the person so subscribing shall pay to them ten per cent of the par value of the stock subscribed for in cash. This was a clear prohibition which they had no power to evade. They could receive the subscription in no other manner, and if the payment in cash was not made they were prohibited from permitting the party to become a subscriber. The language used upon this subject is so clear as to be incapable of being misunderstood. It was the intention of the legislature, by means of it, to render the requisite payment an indispensable condition to the validity of the subscription. If that should not be made, they could not allow the person proposing to take the stock, to become a subscriber for it. And if they did so in contravention of the clear restraint of the statute, the subscriber could acquire no right to the stock; neither could the commissioners, or the corporation, enforce the formal terms of a contract made for the payment of its price. The principle is a general one that a contract which is repugnant to, or contravenes the terms of a statute of the State, is unlawful and cannot be enforced. (Barton v. Port Jackson, etc., Plankroad Co., 17 Barb., 397; Seneca Co. Bank v. Lamb, 26 Barb., 595-601.)

A provision of a somewhat similar nature, though not as restricted in its expression as this, was considered in the case of the Union Turnpike Company v. Jenkins (1 Caine, 381), and it was there held by the Supreme Court, the chief justice dissenting, that the failure to pay the percentage required upon the subscription, would not prevent the maintenance of an action afterwards, for its recovery. But this case was taken to the Court of Errors, and the decision made in it was reversed, because of the omission to pay the amount required to be received by the commissioners at the time when the subscription for the stock was made. (Jenkins v. Union Turnpike Co., 1 Caine’s Cases in Error, 86.) And the doctrine of this case appears to have met the approval of the court afterwards, deciding those of' the President, etc., v. Hurtin (9 Johns., 217), and the President, etc., v. McKean (11 id., 98). In Rensselaer, etc., Company v. Barton (reported in a note to the case of Lake Ontario, etc., R. R. Co. v. Mason, 16 N. Y., 451, 457), the correctness of these decisions has been drawn in question, but they have never been either overruled or substantially impaired as authority. In the principal case to which the note has been appended, the validity of such a subscription was not presented for decision, for it did not depend upon the similar provision made upon this subject by section 4 of the act providing for the incorporation of railroad companies. The subscription forming the subject of that controversy was made under a preceding section of the act, and it was so held, which did not render it in terms dependent upon an accompanying payment of any amount in cash. After these two decisions were made, the validity of a stock subscription under section 4 of the act providing for the formation of railroad corporations, was further considered by the Court of Appeals. (Black River, etc., Co. v. Clarke, 25 N. Y., 208.) The language then construed was in its effect similar to that employed in the act under the authority of which the subscription of the defendant was taken, and in the reference made to it in the opinion of the court, it was said that the intent of this section doubtless was, that no subscription should be valid until ten per cent was paid thereon, and not that it should be invalid if a short interval occur between the actual subscription and the payment of the money. The subscription and the payment of the ten per cent must both concur to make a valid subscription. The subscription one day with payment the next would satisfy the statute, and so would actual payment at any period after subscription with intent to effectuate and complete the subscription. The writing of the name in the subscription book, should be deemed but part of the transaction and provisional or conditional, till the ten per cent is paid. (Id., 210.) A similar view was expressed in one of the opinions delivered in Beach v. Smith (supra). It was there stated that the statute under which the subscription in question is made not only requires ten per cent to be paid, but it forbids the subscription to be received without such payment. It seems to me that a subscription taken in violation of this provision is not binding.” These authorities plainly sanction the conclusion reached by the Court of Errors in the case of the Union Tu/rnpike Company v. Jenkins, and that has been further very materially fortified by a similar decision in the State of Pennsylvania. (Hibernia Turnpike Co. v. Henderson, 8 Sergt. & Rawle, 219.) The act in that case required a payment of five per cent upon the price of the stock to render the subscription a compliance with its provisions, and because of a failure to pay the amount the subscription itself was held to be void. A different conclusion was reached in Henry v. Vermillion, etc., Railroad Company (17 Ohio, 187). That was a creditor’s suit to enforce the payment of a subscription for the stock of the company, and in deciding it, this point received no extended consideration either upon principle or authority, but it was disposed of as a subject meriting very little attention in the case. The same observations are applicable to a like decision in the case of Vicksburgh, etc., Railroad Company v. McKean (12 Louisiana Ann., 638). And for these reasons these cases should not be allowed to exercise any controlling authority over the disposition of the present controversy. The cases of McFarlan v. Triton Insurance Company (4 Denio, 392) and Booth v. Cleveland, etc., Company (74 N. Y., 15), have no direct or necessary application to the point in contro versy, and need not therefore be specially considered. The authorities having a material bearing upon this point are so well sustained by the terms and theory of the statute itself, as to require them to be followed, although in doing so the cases cited from the reports of these other States are required to be disregarded. As the statute must be construed, no binding subscription was made by the defendant for the stock of the company, because of his failure to make the payment mentioned in the statute, before the subscription itself could be received by the commissioners. What was done was entirely ineffectual, and for that reason it was properly held at the trial that the action could not be maintained.

The judgment, for the reasons already assigned, should therefore be affirmed, with costs.

Beady, J., concurred.

Present — Beady, P. J., and Daniels, J.

Judgment affirmed, with costs.


source: Caselaw Access Project

license: Public Domain

text:
    STEPHEN LEE and Others, Appellants, v. JOHN PFEFFER and Others, Respondents.

      Assignees in bankruptcy appointed by a foreign tribunal — properly made additional pm'ties defendant in an action originally brought against the bankrupts.

    Where an attachment is issued, and property is levied upon thereunder, in an action against defendants, who, after the commencement of the action become bankrupt, and for whom curateurs or assignees are appointed by a tribunal of .. a foreign nation having jurisdiction in the matter, it is proper to bring such curateurs or assignees, upon their own motion, into the action as additional parties defendant.

      Appeal by the plaintiffs from an order granted on the petition of Edouard de Nobele and Eelix Yanderstichelen, as curateurs or foreign assignees in bankruptcy, under the laws of Belgium, of the estate of the defendants, John Pfeffer & Co., making such curateurs additional defendants in this action, and allowing them to appear and answer and defend the same, and staying entry of judgment against John Pfeffer and others, the original defendants, until the determination of the action between the plaintiffs and such curateurs.

      Herbert Q. Hull, for the appellants.

      Joseph H. Choate, for the respondents.

       Decided May, 1881.

   Daniels, J.:

The action was brought to recover an amount of money claimed to be due from the original defendants to the plaintiffs, and an attachment was issued under which the property of such defendants was seized. They had become bankrupt and curateurs, or assignees, of their estate had been appointed by a tribunal having jurisdiction of the proceedings, in the kingdom of Belgium. These curateurs are the persons whom the order added as parties to the action. The object of the addition was not to place them in a situation where they might be allowed to act offensively in the assertion of rights claimed by them, and for that reason it was not obnoxious to the rule relied upon by the plaintiffs, by which foreign assignees in bankruptcy are not permitted to prosecute rights claimed by them in the courts of this State. The sole and only object of adding them as parties to the action, was the protection of the estate of the bankrupt debtors, and in that way to prevent any larger sum being recovered against it than the justice of the case might appear to warrant. It is not proposed by the instrumentality of the order to deprive the plaintiffs, or any other creditors of the bankrupts, of any legal right existing in their favor under the laws of this State. But the object of the order was to place these parties in a situation where they could take what might be left of the estate after the claims of domestic creditors should be allowed and satisfied.

While the law does not favor parties who may derive their authority as that was done by these curateurs, it will still permit them to receive the property of the bankrupt debtors and distribute it among their creditors, when no superior right or claim may he presented by parties entitled to the protection of the court. The case of the Hibernia National Bank v. La Combe (21 Hun, 166), certainly went as far as that, and under its sanction this order was warranted.

The appeal taken from it cannot therefore be sustained, and it should be affirmed, with costs.

1)avis, P. J., and Brady, J., concurred.

Order affirmed, with ten dollars costs and disbursements.


author: Daotels, J.:

text:
    LOUISA DONAI WEHLE, Respondent, v. JESSE B. SPELMAN and Others, Appellants.

      Damages — measure of, in an action for seizure, under an irregular attachment, of property subsequently sold, under valid, process against the plaintiff.

    Where property is wrongfully taken under an irregular attachment, it may be shown in a suit brought, after the setting aside of the attachment, to recover the damages occasioned thereby, that the property was subsequently seized under process issued in favor of another creditor of the owner and applied to the payment of his debt.
    Where, however, the parties under whose subsequent process the property is finally taken have acted in concert with the attaching creditor against whom the action for damages is brought, and had first wrongfully themselves issued attachments, which, like that of the defendant, had been set aside as irregular, and the property after having been taken upon such irregular attachments has never, in fact, been returned to the plaintiffs’ possession, the fact of the subsequent seizure under valid process in their favor, can have no effect upon the defendant’s liability.
    Appeal by the defendants from a judgment recovered on a trial at the Circuit, and from an order denying a motion for a new trial, made on the minutes of the court before which the action was tried.

      8. W. Fullerton, for the appellants.

      (Charles Wehle, for the respondent.
   Daotels, J.:

The verdict was recovered for the value of a stock of goods seized under attachments procured by the defendants, the firm of Haviland, Lindsley & Co., and Butler, Broome & Clapp. These attachments were set aside as irregular and unauthorized, and an action was then brought against the defendants for the value of the property which had been taken and removed by virtue of them.

Other attachments were issued in favor of the two firms of Haviland, Lindsley & Co., and Butler, Broome & Clapp, after the first had been set aside, and the same property was again seized under the second attachments. At the close of the trial the court was requested to hold that the defendants were only liable for a proportional share of the damages sustained by the plaintiff by reason of the trespass, and that in considering the amount of damages the jury might take into consideration the fact that these second attachments were issued, and the property in controversy seized under them. Both of these propositions were declined by the court and the defendants excepted. When property is taken by the wrongful act of one person, its subsequent seizure under process issued in favor of another against the owner, upon which it is appropriated to the payment of his debt, is a- circumstance which ordinarily may be received in mitigation of the liability of the wrong-doer. But to be attended with that effect it is essential that the person under whose process such seizure may be made shall not be in collusion with the wrong-doer, or a participator with him in the commission of the-original wrongful act.

In this case these other firms acted in concert with the defendants in wrongfully seizing and appropriating the plaintiffs’ property. They were equally culpable with the parties against whom the action has been prosecuted for the recovery of the value of the property. Bor that reason the attachments afterwards procured by them under which the property was again seized, could legally have no effect upon the extent of the defendants’ liability. (Lyons v. Yates, 52 Barb., 237; Pall v. Liney, 48 N.Y., 6 ; Wehle v. Butler, 61 N. Y., 245.) The defendants were not in a situation in which they could mitigate the qxtent of their liability by ^showing this subsequent seizure or appropriation of the plaintiff’s property. It never had been returned to her after it was first removed from her possession by tbe wrongful act of all these parties acting together. They then became liable for its value, and the plaintiff had her option to sue a portion or all of them, as she elected, and nothing they themselves could afterwards do would relieve them from the liability arising out of their original wrongful act.

The judgment and the order should therefore be affirmed.

Davis, P. J., and Beady, J., concurred.

Judgment and order affirmed.


text:
    METROPOLITAN NATIONAL BANK OF NEW YORK, Respondent, v. WILLIAM LOYD, Appellant.

      Deposit of cheek— when the title tlm'eto passes to the hank.

    Where a check, due at the time, is indorsed in blank and deposited by the payee upon general account in a bank with which such payee keeps an account, and is with the payee’s knowledge and without dissent on his part, credited in his bank book as so much cash, the title to such check vests in the bank, whose only recourse against the depositor lies in his obligation as indorser.
    In case of the failure of the bank so receiving the check, while still indebted to the depositor for the amount credited to him on the deposit thereof, the depositor has no right to stop payment of the check in the hands of an indorsee of the bank.
    Appeal from a judgment in favor of the plaintiff, entered upon the report of a referee.

      G. Van Samtvoord, for the appellant.

      Fisher A. JBalter, for the respondent.
   Daniels, J.:

The check upon which the judgment was recovered, was made by the defendant and delivered to Edward E. Murray, the payee therein named, for a valuable consideration. Upon its delivery he became its actual owner, having the right to dispose of it in any manner that he deemed to be proper. At the time when it was received by him, and for a number of years previous to that time, he was a customer of, and kept a bank account with, the Merchants and Mechanics’ Bank of Troy. "When the check was received by him, he indorsed it and delivered it to this bank. In the deposit ticket made at the time, and containing a statement of it, it was entered as a check for $305. This ticket contained no further intimation from which it could be inferred that the check was deposited merely for the purpose of collection, than the entry made of it in this form "upon the ticket. The ticket on the other hand indicated the general intention to be, to make an unqualified deposit of it in the bank. But from the circumstance that it was mentioned in the ticket as a cheek, it might be inferred that it was received only for collection, if that was all that was done with it at the time, but it was not, for the depositor produced it and had it_entered together with another check for the sum of nine dollars, as so much cash in his bank account. After the entry was so made, the book was passed back to him, and he observed what had been done for the purpose of understanding the entry which was made, and on finding it to be correct left the bank. This entry was evidence of the fact that the check had been delivered after its indorsement to the bank with the intention that it should be entered, as it was, as so much cash to the credit of the depositor. It was due at once, and drawn upon the Corn Exchange Bank in the city of New York. And it was undoubtedly expected that it would be paid on its presentation, which for all the purposes of the parties would be equivalent to so much money. The conclusion that it was intended to be deposited as cash, is further confirmed by preceding transactions of a similar nature, in which deposits of checks were made by the same depositor in this bank. Upon this subject, as well as the deposit of this particular check, he was examined as a witness for the defendant on the trial of the action, and testified as follows:

Q. Do you know of anything that occurred at the time of the-deposit besides the mere fact of handing in the deposit slip and these two checks ? A. No, sir.
Q. Nothing contrary to your usual course in making deposits, so far as you know? A. No, sir.
Q. This pass book was returned to you? A. Yes, sir.
Q. And at the time did you examine it and see tbe deposit was entered? A. Yes, sir; I always do that, compare the check book, with my deposit book.
Q. Yon are in the habit of depositing checks on New York banks? A. Yes, sir, whenever I have got them.
Q. Since 1872, you have deposited checks on New York in this bank? A. Yes, sir.
Q. Was it the custom of the bank to give you credit for checks on New York, the same as if they were money? A. Yes, sir.
Q. During the whole time since 1872 ? A. Yes, sir.
Q. Do yon know whether that applied to checks on all cities in the United States, or only to New York? A. To all, I believe.

By these statements it appears that what was done upon this occasion was conformable to the preceding practice of-the bank with this depositor, and cleaidy justified the conclusion that the check was designed to be, as it actually was, deposited as so much money. The transaction was equivalent in its effect to the discount of the check by the bank, the deposit of the proceeds by the customer, and a credit for the amount in his bank account. In this respect the case materially differs from those relied upon in support of the appeal, for in those cases the instruments in controversy were either deposited in terms for collection, or the inference that such a deposit alone was intended, was created by the circumstance that the bills were of the description known as short bills, and for that reason not at the time available to the customer, or they were payable at a future day, or entered in terms as bills in the account of the bank with the depositor. In Scott v. Ocean Bank (23 N. Y., 289), stress was placed upon the fact that it was neither shown, nor claimed, that the party on the receipt of the bills remitted, was entitled to have a credit in his account for the amount of them, neither was it found that in the course of the dealings • between the parties, any credit was in fact given to the depositor for the bills remitted until the proceeds thereof were realized and received. (Id., 290.) In Dickerson v. Wason (47 id., 439), the note was in terms sent for collection, and in Shipsey v. Bowery National Bank (59 N. Y., 485), it was found as a fact that the check was sent to the bank for collection under an arrangement by which the bank was to be paid a commission for its service in making the collection. Upon that subject it was said by Folger, J., upon whose opinion the case was decided, that the defendant received the check from the plaintiff not as becoming the owner of it, but as his agent for a compensation to collect it.” In Giles v. Perkins (9 East, 12) the bills deposited were not due, and from that circumstance it was inferred that they were not received by the banker as so much cash, but only for the purpose of collection, and for that reason not available by the customer until their proceeds were actually obtained. Thompson v. Giles (2 Barn. & Cress., 422) is a leading case upon this subject. The bills there were not entered in the customer’s account as cash, but in terms as bills, and from that circumstance, although the amount was carried into the cash column, it was held that it did not follow that the customer assented to their being considered as cash. A similar consideration controlled the decision in the case of Rowton (1 Rose, 15), where the securities were received as short bills, a circumstance indicating that they were not at the time liable to the check or draft of the depositor. And a like consideration controlled the cases of Buchanam (1 id., 280), and Sargeant (1 id., 152). The principle already alluded to was likewise applied to the disposition of the cases of Benson (1 Mont. & Bligh, 120), and Ex parte Barkworth (2 De Gex & J., 194). In all these cases, as well as the additional one of Montgomery County Bank v. Albany City Bank (3 Seld., 459), the instruments were delivered by the customer to the bank expressly for collection, or the intention so to do was plainly to be inferred from the circumstance, either that they were not at the time due, or were entered in terms as bills in the customers’ account. For that reason they were received by the bankers simply as the bills of the owners. They were delivered for a specific purpose contemplating that the person from whom they were received still continued to be vested with the title to them, and they were accordingly at their risk.

• But neither of these circumstances existed in the present case. The check was due at the time when it was deposited and entered as preceding instruments, for a similar nature had been in the customer’s account as so much cash. He was in this instance as he had been in others preceding it, aware of that fact, and in no manner dissented from what had been done, and it was to be presumed, from this circumstance, that the bank received and deposited the check as so much cash, with his consent and under his authority. It was not delivered to the bank for a special or specific purpose, but upon general account; and it was so received and at once carried to his credit as so much money. Where that is the disposition made of such an instrument with the assent or authority of the depositor, the title to it at once vests in the bank receiving it, and that is held to be the law in the cases already cited. It is from that time at its risk, and the only recourse which can be taken afterwards, as to the depositor in ease of non-payment, is that which may be secured by means of the indorsement and charging him in the usual way as an indorser. {Ex parte Prase, 1 Rose, 232, 240.) By the acceptance of the check, by the bank receiving it as so much money, it became the debtor to the customer to the extent of the amount credited on account of it. {Bank of Republic v. Millard, 10 Wall., 152; National Mahaiwie Bank v. Peck, 127 Mass., 298.) And while he did not draw checks or drafts against it, but the bank was largely his debtor, he still had the right to do it if he had been so disposed. The account, including the amount of the check, stood with his assent as so much money subject to his disposal, and because of that circumstance he ceased to be the owner of the check, and the title to it became vested in the bank as its own property, and subject to its risk in case of loss. In Matter of Franklin Bank (1 Paige, 249) the chancellor considered the law to be that money or bills deposited in a bank, became its property and the depositor a mere creditor for the amount. It was then added, “ if they are stolen, lost or destroyed, or become of no value, the bank sustains the loss and he is still a creditor. He has no claim upon the money or bills deposited. The officers may use them as they please for the general purposes of the institution, and he is to all intents a general creditor of the bank.” (Id., 254, 255.) This general proposition was recognized as the law in Clark v. Merchants' Bank (2 Comst., 380). In the opinion upon which the case was decided, the conclusion of Lord EldoN, by which it was held that if the bills were entered as cash with the knowledge of the customer, and he drew, or was entitled to draw upon the banker as having that credit in cash, he would thereby be precluded from recurring to the bill specifically, was cited with approval. As to the case which was then before the court, it was held that the whole arrangement was one of mutual convenience, because the dejxositor had the right to draw against the bills sent to his correspondent, and that circumstance was considered to be sufficient to vest the title to the instrument sent forward, in the party to whom they were sent. Substantially the same principle was observed and acted upon in the case of Stuyvesant Bank v. National Bank (7 Lansing, 197), where it was declared to be the general rule, that money, or checks, paid into a bank, cease to belong to the person paying them in, and become the pi’operty of the bank. (Id., 203.) This subject was very fully examined in a note to Paley on Agency, 233 and 23é, and quoted by Story in his work on the same subject. (Story on Agency [4th ed.], 288.) There the circumstance was considered a controlling one, that the banker receiving the instruments derived from the transaction a general authority to negotiate them. That authority was considered as derived from the circumstance that the instrument was indorsed by the depositor and received by the bank substantially as so much cash upon his account. It was there said, that if the proceeds cannot be distinguished from the general stock of the banker, the right of the general creditor prevails, and the customer must come in ratably with the rest, and herein consists principally the evil of the indorsing of the bills by the customer, as it gives the banker the opportunity of negotiating them. (See, also, Van Amee v. Bank of Troy, 8 Barb., 312-316). As this check was transferred to and received by the bank, it became its property, and the fact that it had the right in case of non-payment upon presentment to charge the amount of it back in the account of the customer, did not change the nature of the transaction through which it was received, for that right resulted not from any agreement existing between the parties upon the subject, but from the rights which the bank might derive from proceedings after-wards taken, to charge the depositor as the indorser.

As this bank, by receiving the check as so much cash became its owner, it had the right to dispose of it as its own inclination or interest might dictate, and for that reason it transferred to the plaintiff a valid title, when it was transmitted and credited upon its account to the bank from which it was received. The fact that the bank first receiving the check failed the next day, did not divest its title to it, or create the right on the part of the depositor to prevent its payment, as he appeared to have done. The plaintiff succeeded to the same rights when it received the check, as the bank from which it was received had acquired to it by its deposit. That was sufficient to authorize a recovery of its amount against the defendant as the maker.

The judgment in this case was accordingly right and it should be affirmed.

Davis, P. J., and Brady, J., concurred.

Judgment affirmed.


author: Brady, J.:

text:
    WILLIAM M. KINGSLAND, Respondent, v. STEPHEN B. M. STOKES, as Sole Acting Executor and Trustee under the Will of ELIZABETH BORST, Deceased, and Others, Appellants.

      Pleadings — in an action by an executor — when the appointment, etc., must be alleged.

    Where a bond and mortgage is executed by one as executor and trustee and purports to be made in such representative capacity, it is not necessary, in an action to foreclose such bond and mortgage, to allege that the mortgagor was in fact such executor and trustee, and the facts relating to his appointment as such.

      Semble, that it is otherwise where one sues or is sued as an executor, and the action is brought to recover a debt due to or from a testator.
    Appeal by the defendant Stokes from a judgment, entered upon an order overruling a demurrer, because of his omission to answer over in accordance with the permission contained in such order.

      S. B. M. Stokes, for the appellants.

      Frederick DeP. Foster, for the respondent.
   Brady, J.:

This was an action to foreclose a mortgage. The amended complaint alleges that the defendant, Stephen B. M. Stokes, as executor and trustee of and under the last will and testament of Elizabeth Borst, deceased, for the purpose of securing the payment to the plaintiff of the sum of $30,000, with interest thereon, on or about ■the 1st day of September, 1875, executed and delivered to the said plaintiff a bond bearing date on that day, sealed with his seal, whereby he bound himself and his successors and assigns in the penalty of $60,000, upon condition that the same should be void if the said defendant, Stephen B. M. Stokes, as executor and trustee as aforesaid, his successors or assigns should pay to the said plaintiff, etc. The defendant Stokes demurred on the ground that it appeared that the complaint, on its face, did not state facts sufficient to constitute a cause of action. In support of the demurrer it was urged that several facts which were necessary to etablish the plaintiff’s right to recover were omitted from the statement of the cause of action; for example, that the complaint contained no allegation as to whether the mortgagor was in fact the executor of Elizabeth Borst, deceased, and no statement of the place, county or State of any such appointment, or the functionary connected with it, and that, for aught that appeared, such alleged appointment might have been in a foreign State; and further, that there was no allegation in the complaint of the place, county or State of the appointment of the defendant Borst as administrator with the will annexed, the said Stokes having been discharged as executor, and further, that there was no allegation in the complaint that the executor had power to execute the mortgage.

These various elements were disposed of in the opinion given by Mr. Justice Van Vorst, before whom the demurrer was argued, and in a manner entirely satisfactory. The cases which were cited by the learned counsel were disposed of by the observation that they are applicable where one sues as an executor, in which case he must aver his appointment or title as such, or where the claim urged is one against a testator. In this case the action is brought upon an instrument executed by a person as executor and trustee under a last will and testment, and this seems to be a sufficient statement of it as executor. If the defendant Stokes had no power, as executor or trustee, to execute the mortgage under the will named, that would be a good defense and doubtléss, for the protection of the estate, it could be' interposed for its benefit. But whether this be so or not, as decided in the case of Holliday v. Fletcher (2 Ld. Raymond, 1510), suing one’s administrator did, of necessity, imply that the administration was committed to him, or suing one as an executor and trustee of and under the last will and testament of a person named, implies that the proper letters were issued to him to enable him to assert the capacity stated.

The learned counsel for the respondent criticises the cases of Skelton v. Scott (18 Hun, 375), and others cited by Mr. Justice VaN Yoest in his opinion. An examination of that case .leads to the conclusion that the criticism upon it is erroneous and that it does decide exactly what it is accredited with having adjudicated in the opinion of that justice. The complaint in that case alleged that the mortgage was given by one Israel O. Beatty, as executor of the last will and testament of John Scott, deceased. According to the report of the case it did not appear, although it is stated in the opinion, that the mortgagor gave back the mortgage for part of the purchase-money. The allegation in the complaint, therefore, according to the report, is just such an allegation, or substantially such a one as made in this case, namely, that Israel O. Beatty, as executor of the last will and testament, executed the mortgage. As suggested by Mr. Justice YaN YoRst, where one sues as executor the rule is different, in which case he must aver his appointment and title as such in particular; or where the action is brought to recover a debt due to or from a testator, an allegation is necessary showing the appointment of the executor or administrator as such, with all the necessary details to make that fact apparent. (Sheldon v. Hoy, 11 How., 11; Stephens’ Pl., 288; Rightmyer v. Raymond, 12 Wend., 51; Morgan v. Lyon, Id., 265; Beach v. King, 17 id., 197; White v. Joy, 13 N. Y., 83; Forrest v. Mayor, 13 Abb., 350; Wheeler v. Dakin, 12 How., 537.)

The objection to the statement in regard to John Becker Borst, as administrator with the will annexed of Elizabeth Borst, is not of such a character as to make it necessary to interfere with the judgment pronounced. The statement appears in the prayer of the complaint, which is, that John Becker Borst, having been previously named as one of the parties who had or claimed some interest or lien in the mortgage, and who had become administrator with the will annexed of Elizabeth Borst, deceased, be adjudged to pay any deficiency out of tbe estate in bis bands wbicb might remain applicable thereto after tbe sale of tbe premises. Tbe demurrer to tbe prayer for relief cannot be maintained. (Mackey v. Auer, 8 Hun, 180.) If tbe facts alleged are sufficient to afford any relief, tbe relief must be in harmony with tbe facts alleged.

For these reasons we think tbe judgment appealed from should be affirmed.

Davis, P. J., and Daiíiels, J., concurred.

Judgment affirmed.


author: Daniels, J.;

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. JOSEPH H. McCARTHY v. STEPHEN B. FRENCH and Others, Commissioners of Police.

      Code § 2138, requiring the hea/ring on certiorari to he on the writ, the return and the papers on which the writ was granted, does not allow the return to he overthrown hy the statements contained in such papers — such papers only establish fads as to which the return is silent — •Removal from office in New Tor7c city — -Section 28 of chapter 335 of 1873 — how far modified hy chapter 521 of 1880.
    Certiorari issued to review tlie action of tlie commissioners of police in tlie city of New York, by which the relator was removed from the office of deputy clerk, which he had held since the 13th of January, 1874.
    No formal charges were made against the relator, and no opportunity was offered him to be heard before the commissioners, as that was provided for by section 28, chapter 335 of the Laws of 1873, ' before the resolution for his removal was adopted.
    After holding that the provisions of section 28 of chapter 335 of 1873 were so far qualified by chapter 521 of 1880, which provides for retrenchment in the expenses of the local government of the city of New York, and authorizes the abolition and consolidation of offices and bureaus and the discharge of subordinates, that authority was given to discharge the relator, although charges were not preferred nor hearing given to himthe court at General Term said : “ In the resolution by which the removal was made, it was stated to have been done in compliance with this act of 1880, and because the appropriation for the payment of salaries of the clerical force for the year 1881 was insufficient to pay those of all the persons employed upon such force. This statement disclosed the fact that the commissioners acted in subordination to the act of 1880 in removing the relator from his position. Tie has taken issue with the accuracy of this statement, and in his affidavit presented for the allowance of the writ asserted that no such insufficiency in the appropriation existed, and under the authority of section 2138 of the Code of Civil Procedure this statement is required to be considered in the disposition of the case, for by the terms of that section the case is not only to be heard upon the return, but also upon the papers on which the writ was granted. It could not, however, have been the design of this extension of the law, to allow the return to be controverted or overthrown in its statement by anything contained in the papers presented for the allowance of the writ. As the law previously stood, the return to a writ of certiorari was conclusive as to the facts contained in it. (People ex rel. Sims v. Fire Commissioners, 73 N. Y., 437.) And it could not have been the purpose of the legislature by this provision of the Code, so far to interfere with the existence of this well settled rule of practice, as to allow the return itself to be rejected, because it might not be consistent with the statements contained in the affidavit upon which the application should be made for the writ of certiorari. There would be no just propriety in giving such a construction to this provision of the statute; but what was, and all that was probably intended was, that where the return itself might be silent, that the affidavit or papers upon which the writ issued might be resorted to for the purpose of including facts not set out in the return. The statement in the affidavit which has already been referred to, was made for the purpose of contradicting the recitals in the resolutions, and it was so regarded by the relator at the time when it was sworn to, for it is introduced into the affidavit by the assertion that the statement contained in the notice served upon him, which included a copy of the resolutions, was not true. From the language made use of, this was intended, as it did in fact, to take issue with what the commissioners had stated to be the reason actuating them in the relator’s removal, and it cannot, therefore, be permitted to affect the truth of the statement made upon this subject by the commissioners. It must, on the contrary, be presumed that their action was prompted by the cause stated by them, which was the insufficiency of the appropriations made.
    A further reason urged for disregarding the action of the commissioners, was that the relator’s office was continued and his services performed by another person at a salary greater than that which had been paid to him. But it is evident from what he has said that no new appointee was selected for the purpose of discharging his duties. Although the statement made is obscure, it still warrants the conclusion that some other person in the employment of the department, who received a greater salary than that which had been paid to the relator, was required to perform his duties in addition to those previously imposed upon that person. But if this was the fact, it in no manner impugned the action of the commissioners. On the contrary, it rendered it evident that in what they did they were engaged in carrying out the policy of this act of 1880.
    But if, from the statement in the affidavit, it should be assumed that the appropriation was sufficient to pay the entire clerical force employed by the department, the action of the commissioners would not, because of that circumstance, be unauthorized. They were not obliged to use up or exhaust the entire appropriation, but it was still their duty on the other hand to reduce, the expenditures of the department as far as that might prove to be practicable. And for that purpose, under the authority conferred upon them, they might remove subordinates whose services were not nee led in what the department itself was required to accomplish. Upon this subject the authority which was created was broad and unqualified, and it allowed the commissioners to discharge such of their subordinates-as could be dispensed with, for the mere purpose of reducing the-expenses of the department. They may in this instance have proceeded harshly in not giving the relator timely notice of what they intended to do. But as the statute has not made their action dependent in any respect upon the service of notice, its' force and effect cannot be impaired by reason of the existence of these circumstances. The proceedings taken by them appear to have been warranted by the act of 1880, and for that reason they are required to be affirmed. But under the circumstances disclosed this should be without charging the relator with the costs of this review.”

      John W. Weed, for the relator.

      Richard J. Morrison, for the respondent.
   Opinion by

Daniels, J.;

Davis, P. J., concurred; Brady, J., dissented.

Proceedings affirmed, without costs.


author: Davis, P. J.;

text:
    ELIZABETH RUSSELL, Respondent, v. HENRY D. MINER and ROBERT SOMERVILLE, Appellants.

      Auctioneers’ compensation of two and a-half per cent — what services owe comprehended in — disbursements owe not.

    Appeal from a judgment entered on a verdict, and from an order denying a motion for a new trial, made on the minutes of the court before which the action was tried.
    This action was brought against the appellants, who are copartners doing business in the city of New York as auctioneers, to recover alleged excessive charges made upon personal property sold by them as such auctioneers, and also the penalty given by statute.
    Section 23, title 1, chapter 1Y, part 1 of the Revised Statutes, enacts that “ no auctioneer shall demand or receive a higher compensation for his services than a commission of two and one-half per cent on the amount of any sales, public or private, made by him, unless by virtue of a previous agreement, in writing, between him and the owner or consignee of the goods or effects sold.” And section 24 enacts that “ every auctioneer, who shall violate the provisions of the last section, shall forfeit the sum of two hundred and fifty dollars to every person from whom he shall demand or receive an unlawful compensation or commission, and shall also be liable to refund the moneys so illegally received.”
    The proceeds of the sales made by the appellants were $Y01.35. The commissions and charges deducted by them were seventy dollars and thirteen cents, in addition to the government taxes, seven dollars • and one cent, and cartage of the property, fifty dollars.
    The court at General Term said: “ It is apparent from the charge of the judge, that the defendants were held to a very strict construction of the statute, and so strict as to exclude actual and necessary expenses incurred by them in the selling of the goods. The language of the statute is, “ no auctioneer shall demand or receive, for his services, a higher compensation than a commission of two and one-half per cent.” "What is meant by the word “ services ” has been the subject of judicial determination. It was said by Barbour, J., in Leeds v. Bowen (2 Abb. Pr. [N. S.], 43), “ the services mentioned in the act are not merely offering the goods for sale and striking them off. Indeed the auctioneer need not sell at auction at all; but may dispose of them at private sale. (Sec. 36.) In addition to selling the goods, it is also under the statute, the duty of the auctioneer, as such, to advertise the proposed sale in a newspaper. (Sec. 34.) And in case the purchase-money shall not be paid immediately, he must also enter the sale with all necessary details in a book to be kept by him for that purpose (sec. 39); and he is also required to have a store or auction-house for his business. (Sec. 30.) But aside from the statute, an auctioneer, like any factor, is bound by his undertaking to sell goods, to take all such proper and incidental steps to insure a successful sale as is customary and necessary. If in performing those duties any expenses are incurred, such expenses will be properly chargeable against the owner, but the auctioneer is entitled to no compensation, for his services in the matter of the sale or its incidents, except the two and one-half per cent fixed by the statute.”
    This is a clear and correct exposition of the statute, and is preferable, we think, to that given by Oardozo, J., in Bussell v. Miner (61 Barb., 534). In applying this rule to the case, the court below seems to have gone so far as to hold that the actual and necessary expenses attendant upon such a sale were to be embraced within the commission of two and one-half per cent. But the language of the statute is, “ compensation for his services.” While this covers, as we think, every kind of service that may be rendered by the auctioneer in taking the property into his possession and taking care of it while the sale is under advertisement, preparing the necessary catalogues or schedules and labeling or numbering the articles, and entering them and the sales in his books, yet it was not intended to cover expenses actually and necessarily incurred and paid by him, as for instance, the expense of advertising in public newspapers in compliance with his duty under the statute. A computation shows that the jury allowed to the defendant for their services as auctioneers two and one-half per cent on the gross amount of the sales, together with the government tax, but nothing whatever for actual disbursements paid out for advertising the sale in several newspapers specified by the defendant. The evidence was to the effect that about twenty-five dollars was paid for such advertising, which sum was included in the charge of seventy dollars and thirteen cents. ¥e think it very clear that the defendants were not obliged to pay for this advertising out of their commission, but under the charge the jury could not well do otherwise than disallow it.
    On our examination of the whole case we are unable to see any errror except in the non-allowance of the expenses paid for advertising. But for that error there must be a new trial unless the plaintiff stipulates to deduct the sum of twenty-five dollars, with interest, from March 14, 1867, to the date of the verdict, in which case the judgment, as so induced, should be affirmed, without costs to either party.”

      G. S. Van Pelt and A. S. Oushmcm, for the appellants.

      B. O. Thayer and Alfred Taylor, for the respondent.
   Opinion by

Davis, P. J.;

Brady, J., concurred; Daniels, J., concurred in result.

Judgment reversed; new trial ordered, unless plaintiff stipulates to deduct twenty-five dollars, with interest, in which case judgment afflrméd, without costs.


text:
    CORNELIUS HORGAN, Respondent, v. HENRY W. KRUMWIEDE, Appellant.

      Lease under seal — oral agreement modifying its terms — how fa/r mlid.

    Appeal from a judgment, entered on the verdict of a jury, rendered at the New York Circuit, and from an order denying the defendant’s motion for a new trial, made upon the minutes of the court before which the trial was had.
    The action was brought for the recoveiy of rent accruing by the terms of a lease which was under seal. The lease was made in May, 1873, and by its terms tbe plaintiff demised to tbe defendant tbe first, or store floor, and the front part of the basement floor, of a building situated on the northwesterly corner of Second avenue and Sixty-first street, for the term of five years from the first of May, 1873. The rent reserved was $1,200 a year for the first three years of the term, and $1,500 a year for the fourth and fifth years of the term. The defendant occupied the premises under the lease until near the first of May, 1876. He also occupied the floor over the store not mentioned or included in the lease. He held that under a verbal lease, which expired the first of May, 1876. Before the arrival of that time, he informed the plaintiff that he should give up the floor above the store, and also that it was impossible for him to pay the amount of rent mentioned in the lease for the unexpired portion of the term created by it. The uncontradicted testimony was to the effect that the plaintiff then requested him to continue his occupancy of the floor above the store, and also of the premises mentioned in the lease, and that in case he did so, he would reduce the rent of both to the sum of $110 a month. The defendant accepted these terms, remained in possession of all the property referred to, and paid the rent of $110 a month for the ensuing year. Before the expiration of that time, a further arrangement was made by which the defendant was to continue his occupancy of the floor over the store with the premises mentioned in the lease for the next year, and the rent of the premises was for that year agreed to be reduced to the sum of $100 a month. The defendant after that, continued in the occupancy of the property and paid this monthly rent to the plaintiff. After the term had expired, the plaintiff brought this action for the additional sum of $300 a year, which, by the terms of the lease under seal, the defendant had obligated himself to pay for the year 1877 and 1878. At the close of the plaintiff’s case, the court held both agreements for the reduction of the rent, to be inoperative, and accordingly directed a verdict in favor of the plaintiff for the amount claimed, besides interest.
    The court at General Term said: “No surrender was made by the defendant of the property mentioned in the lease, and as it was under seal, it could not be modified, or the rent reserved by its terms be reduced by a mere oral executory agreement. (Eddy v. Graves, 23 Wend., 82.) But such an agreement, founded upon a new consideration, and afterwards performed by the parties, is sufficient to modify or change the terms of an instrument of this nature. (Dear-born v. Cross, 7 Cow., 48; Langworthy v. Smith, 2 Wend., 588; Pierrepont v. Barnard, 2 Seld., 279 Allen v. J aguish, 21 Wend., 628; Coe v. Hobby, 7 Hun, 157, 163 ; affirmed, 72 N. Y., 141.) That the agreements which were made were both performed, was clearly shown as a matter of fact in the case.”
    The court held further, that the defendant not having been obliged to take a lease of the door above the store after May 1, 1876, that his leasing of that door after that time constituted a consideration for the agreement to reduce the rent provided to be paid by the terms of the lease under seal.

      Henry Birohoff and William C. Clifford, for the appellant.

      Samuel G. Courtney, for the respondent.
   Opinion by

Daniels, J.;

Davis, P. J., and Brady, J., concurred.

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


author: Davis, P. J.

text:
    Edgar E. Holley, Respondent, v. Parmenus Johnson and Edwin K. Scranton, Appellants.
   Judgment reversed, new trial ordered, costs to abide event. Opinion by

Davis, P. J.


author: Daniels, J.

text:
    Kate L. S. Mapes and Peter Shand, Appellants, v. Agnes S. West, Respondent.
   -Order reversed, with costs. Opinion by

Daniels, J.


author: Brady, J.

text:
    Sidney P. Nichols, Respondent, v. Charles F. McLean, Appellant.
   Order affirmed, with ten dollars costs and disbursements. Opinion by

Brady, J.


text:
    Charles W. Adams, Appellant, v. Edward Robert, Respondent.
   Order affirmed, with ten dollars costs and disbursements. Opinion by

Brady, J.


text:
    The Major and Knapp Manufacturing, Lithographic and Engraving Company, Respondent, v. August Werner and others, Appellants.
   Judgment reversed, new trial ordered, costs to abide event. Opinion by

Brady, J.


text:
    Charles Cohn, Respondent, v. William B. Burtnell and Daniel A. Burtnell, Appellants.
   Judgment affirmed. Opinion by

Brady, J.


text:
    Aaron H. Wellington, Respondent, v. Franklin Morey and James A. Sperry, Appellants.
   Judgment and order affirmed. Opinion by

Davis, P. J.


text:
    William Burns, Respondent, v. Sidney Dillon and others, Appellants.
   On the appeal from the judgment, judgment affirmed, with costs; on appeal from order, new trial granted to defendants on payment of costs of appeal and of former trial (not including allowance), within twenty days. Opinion by

Davis, P. J.


text:
    Albert L. Mowry, Appellant, v. George Peet and another, Executors, etc., Respondents.
   Judgment modified as directed in opinion. Opinion by

Daniels, J.


text:
    David Duncan and others, Respondents, v. Isaac B. Guest, Appellant.
   Order affirmed, with ten dollars costs and disbursements. Opinion by

Davis, P. J.


text:
    Augustus D. Juillard, as Receiver, etc., Respondent, v. Zechariah Chafee, as Trustee and Assignee, etc., Appellant.

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

Brady, J.


text:
    Kate Ward, as Administratrix, etc., Respondent, v. Charles N. Howard and Juliette Howard, Appellants.

   Judgment affirmed. Opinion by

Brady, J.


text:
    William T. Call, Respondent, v. John Collins, Appellant.
   Order affirmed. Opinion by

Brady, J.


text:
    Chauncey St. John, Respondent, v. Howard W. Coates and another, Executors, etc., Appellants.
   Judgment reversed, new trial ordered.


text:
    Alberto Verastegui, Appellant, v. Manuel Luzunariz, Respondent.
   Order affirmed, with ten dollars costs and disbursements. Opinion by

Brady, J.


text:
    Albert R. Riggs, Appellant, v. Frederick Waydell and John H. Waydell, Survivors, etc., Respondents.
   Judgment affirmed. Opinion by

Daniels, J.


text:
    The People of the State of New York ex rel. James S. Turner v. Stephen B. French and others, Commissioners, etc., Respondents.

   Proceedings affirmed, without costs. Opinion by

Daniels, J.


author: Daniels, J.,

text:
    The People of the State of New York ex rel. Vincent Clark v. Stephen B. French and others, Commissioners, Respondents.
   Proceedings affirmed on the opinion of

Daniels, J.,

in the case of People ex rel. McCarthy v. French.


text:
    George J. Desh, Respondent, v. Oliver W. Barnes, Appellant, Impleaded, etc.
   Judgment reversed, new trial ordered, costs to respondent to abide event. Opinion by

Davis, P. J.


text:
    Frank M. Hurlbut, Respondent, v. Charles W. Durant, Executor, etc., Appellant.
   Decree affirmed. Opinion by Daniels, J.


author: Per Curiam.

text:
    In the Matter of N. Hudson Holly.
   Motion denied, without costs. Opinion

Per Curiam.


text:
    George S. Goodale v. Central National Bank.
   Reargument ordered.


author: Bookes, J. L

text:
    MICHAEL DALTON, Respondent, v. JOHN GILL, Appellant.

      Evidence — in action for slander — proof of accompanying words and acts, competent.

    In an action to recover damages because of the speaking of slanderous words by tke defendant concerning tke plaintiff, evidence of all tkat occurred on tke occasion — tlie words spoken and tke acts done— is competent.
    Appeal from a judgment in favor of the plaintiff, entered on a verdict rendered at the Chemung Circuit, and from an order denying a motion for a new trial made on a case containing exceptions.The action was brought to recover damages because of the defendant having spoken slanderous words concerning the plaintiff, to wit: “You are a thief. You are a damned thief. You God damned thief, you were arrested during the war for robbing soldiers and taken to Washington in irons. You robbed soldiers. You are a robber.”
    On the trial the defendant offered certain evidence, showing that the parties struck each other and that certain things were said by them after the speaking of the alleged slanderous words.
    The defendant’s counsel offered “ to show, as bearing upon the animus with which the words were spoken, what the witness states, viz.: That he saw them spitting at each other, and strike each other. * * * “ I ask him to state what he saw take place between them at that time.

      “ The Court: He may state any matter, not relating to an assault and battery, which took place after the speaking of the words.
    “ Plaintiff’s counsel: I ask that he be limited to a time previous to the speaking of the words.
    “ The Court: I intend to do so; the question should limit the witness to that time. The court holds, that what took place after the speaking of the words, is not competent upon the question of animusB

      “ Defendant’s counsel duly excepted.”
    . Smith & Robertson, for the appellant.

      Roclcwell & Collin, for the respondent.
   Bookes, J. L

We are of the opinion that the defendant was entitled to put in evidence all that occurred on the occasion of the speaking of the alleged slanderous words. Certainly he was entitled to all that was there said by the parties; and so clearly also, as we think, of all that was done by them. The words spoken and the acts which accompanied them constituted the transaction, and all that then occurred was open to examination before the jury. As matter of evidence they could not be properly separated. This is the doctrine of Voltz v. Blackmar (64 N. Y., 440-445). The exclusion of part of what occurred on the occasion of the speaking of words charged as slanderous was error, for which a new trial must be awarded; and we need not examine other questions urged by the appellant’s counsel.

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

Learned, P. J., and Boardman, J., concurred.

Order and judgment reversed, and new trial granted, with costs to abide event.


author: Bockes, J.:

text:
    JOHN W. DEAN, Appellant, v. DAVID S. BIGGS, Respondent.

      Claim for unpaid subscription to corporate stock — is subject to sequestration — it is not covered by a general mortgage of the raiVroad and appurtenances.

    Tlie balance unpaid on a subscription to tbe stock of a corporation, is a claim or thing in action which is subject to sequestration in proceedings taken on a judgment recovered against the corporation.
    Such claim or thing in action is not covered by a mortgage purporting to convey the right of way'of the railroad and its other property, chattels and things pertaining thereto; its chartered rights, privileges and franchises, and all the estate, right, title, interest, property and possession, claims and demands whatsoever of the railroad, of, in and to the same.
    Appeal by the plaintiff from a judgment in favor of the defendant, entered in Tompkins county on the report of a referee.
    The Pennsylvania and Sodus Bay Railroad Company was organized May 24, 1870. The defendant was a subscriber for capital stock of the company. This railroad company mortgaged its railroad to the Union Trust Company to secure' certain bonds issued by the company. This mortgage purported to cover the railroad constructed and to be constructed, and all rights of way, machinery, implements and other property, chattels and things pertaining to said railroad, and all its chartered rights, privileges and franchises, and also all the estate, right, title, interest, property and possession, claims and demands whatsoever of the said railroad, of, in and to the same, with the appurtenances, etc. June 3, 1876, the railroad was sold upon a foreclosure, and Merrit King became the purchaser for $24,750.
    Gilbert Kennedy, a creditor of the Pennsylvania and Sodus Bay Railroad Company, obtained a judgment against said company, and upon execution being returned unsatisfied, began an action in the Supreme Court, and procured the sequestration of said railroad company’s property, and the appointment of one Charles P. Barto as receiver, who qualified, and under an order of the Supreme Court sold the unpaid stock subscriptions at public auction, January 6, .1877.

      Defendant’s subscription was purchased by himself,' and the purchase price was paid to the receiver.
    Subsequent to the sale by the receiver, and in October, 1877, the plaintiff claiming to be the transferee of Merrit King, began this action to recover the same subscription from defendant.
    The cause was referred. The referee found as conclusion of law that the receiver obtained the title to the unpaid stock subscriptions, under the judgment sequestrating the property of the' company, and that plaintiff was not the owner, and had no right of action against defendant, and directed judgment to be entered dismissing the complaint of the plaintiff.

      Merritt King, for the appellant.

      J. D. Smith, for the respondent.
   Bockes, J.:

We need do no more than express our satisfaction with the judgment directed by the learned referee in this case, and for the reasons stated by him in his findings on the questions of law.

He held that the defendant became the owner of the stock subscription sought to be enforced against him in this action, by virtue of his purchase of it, under the sequestration proceedings taken on the Kennedy judgment against the railroad company. In this conclusion we concur. The balance unpaid on the stock subscription was a claim or thing in action, subject to sequestration in that proceeding. It stood like any other claim and right of action held by the company, like a freight bill due the company, or indeed any other legal or equitable claim and demand. The fact that the company was subsequently adjudged insolvent did not change the character of the claim, or deprive the judgment creditor of his right secured by his sequestration proceedings.

¥e also concur in the conclusion of the referee that the title to the stock subscription did not pass under the mortgage sale. It was not such property as was covered by the mortgage lien. This claim did not pertain or belong to the chartered rights, franchises or privileges of the corporation. Those embraced rights, privileges and immunities which could not be exercised without legislative authority. The mortgage was not a lien on this stock subscription, and the sale under it did not, in our judgment, carry title thereto. The complaint was, as we think, properly dismissed.

The judgment should be affirmed with costs.

Learned, P. J., and Boardman, J., concurred

Judgment affirmed, with costs.


author: Bockbs, J.:

text:
    JOSIAH D. PAYNE, as Trustee for the Schuyler County Bank, Appellant, v. ELIZABETH H. FREER, Impleaded, etc., Respondent.

      Usury — one pan'tner may lawfully agree to pay ten per cent for the use of the pwrtnw'ship money.

    An agreement between several co-partners who have all contributed to the partnership fund, that each shall be allowed at a rate of six and one-half per cent per annum upon the average amount of his deposits, and shall pay interest at the rate of ten per cent per annum upon all over-drafts from the partnership fund, is not usurious.
    The fact that the notes of one partner were taken up with the money of the partnership, and that he was charged ten per cent interest upon the amount so expended, does not render the transaction usurious.
    Appeal from a judgment entered at the Schuyler County Special Term dismissing the plaintiff’s complaint. The action was brought to foreclose a mortgage executed by George G. Freer and wife to Josiah D. Payne, as trustee for the Schuyler County Bank. The mortgage was given to secure the payment of $52,383, and was intended as a security for the payment of certain moneys due from said Freer to said bank.
    This action was tried before the court without a jury.
    The court found, among other things, that on or about the 20th of March, 1813, George G. Freer, Josiah D. Payne and William M. Pellet entered into an agreement in writing, called articles of co-partnership, with the intention and for the purpose, as therein expressed, of forming a partnership in the business of private banking in the firm, name and style of The Schuyler County Bank, for the term of ten years, unless sooner dissolved, and thereby it was provided that the business of the firm should be carried on at Watkins, N. Y., and that it should be confined exclusively to that of private banking, and be conducted on the same principle, so far as practicable, as that of national banking associations, etc., and it was thereby stipulated as follows: “ To each or either of the said co-partners, there shall be allowed a rate of six and one-half per cent on the average amount of his deposits, to be computed on the first Monday of January in each and every year, and on over-drafts, either and each who may overdraw his accounts shall pay interest on the average of such over-drafts at the rate of ten per bent per annum, to be eomputed and paid on the said first Monday of Janu ary in eaeh year, but in this conneetion it is understood that neither of said co-partners shall overdraw his account in said bank without the consent of the other partners,” and it was thereby further agreed and understood that the members named therein should eaeh put in, in their notes or money, $20,000, as capital, but they afterwards modified that provision so as to make the amount each should thus put in as capital, $10,000, for which they put in their notes respectively. That it was also provided by their said agreement that other persons might be let into the firm by the unanimous consent of the members thereof, and pursuant to that provision, etc., soon after the date of the agreement, John Knight, William N. Love and Edgar S. Payne were let into and became members of said firm, and that the said firm commenced business on or about the first day of April, 1873.
    That the firm had books of accounts and opened and kept therein an account with each member thereof, and with its customers, giving him and them credit for his and their • several deposits, and charging to him and them the several sums of money advanced to and for him and them by the firm, upon his and their checks drawn upon the said Schuyler County Bank and otherwise.
    That from and after the expiration of the first year of the business of said bank, the books of said bank showed quite uniformly a balance against George G. Eroer, whose executors are parties defendant to this action, in his account with the said bank, and that the firm (The Schuyler County Bank) computed and charged to him, in his said account, each and every year, interest at the rate of ten per cent per annum upon all the debit items of his account in excess of his credits on the books.
    That the interest, at the rate of ten per cent per annum, so computed upon the debit items of his account and charged to him, were as follows:
    April 13th, 1874................................. $145 25
    April 15th, 1875 .......................■.......... 657 04
    April 15th, 1876 ................................. 1,230 50
    November 10th, 1876............................. 1>336 10
    Making................................... $3 > 368 89
    Exclusive of interest on the $10,000 stock note, so-called, upon which interest was computed at the rate of seven per cent per annum.
    It appeared that the Schuyler County Bank advanced the money and paid certain notes of said George G. Freer, among others a note given to G. G. Hill, some time prior to the dates under which •charges therefor were made to him in the books. That in those instances interest at the rate of ten per cent was computed by said bank upon the amount so advanced, which constitute entries so made on his account therefor.
    That the provisions of said agreement, called articles of co-partnership, whereby it was agreed that the said George G. Freer should pay interest at the rate of ten per cent per annum on over-drafts, was not inserted in and made part of the agreement for the purpose nor with the intent that the said Schuyler County Bank should receive, and the said George G. Freer should pay a greater rate than seven per cent per annum for the loan or forbearance of money, which the said Schuyler County Bank should or might make to him ; that an over-draft within the meaning of the contract was not a loan of money, but an advancement out of the common funds, and the interest returned therefor was for the common benefit, and partook of the risks and hazards of the business.
    As conclusions of law the court found —
    1. That the articles of co-partnership are not per se usurious.
    2. That a portion of the items in the account which formed the indebtedness which the mortgage in question was given to secure, being properly over-drafts within the meaning of the articles of co-partnership, and not loans of money, and ten per cent interest being charged thereon in pursuance to said articles, are not usurious.
    3. That the transaction in regard to the Hill notes and some other transactions, not being over-drafts within the meaning and intention of the articles of co-partnership, the same must be deemed loans of money, and ten per cent interest being charged thereon, under a corrupt and usurious agreement and understanding with said Freer, come within the prohibition of the statute in such case made and provided, and that such usurious items having entered into and formed a part of the debt which the mortgage in question is given to secure, the mortgage is therefore usurious and void, and must be set aside and held for nothing.

      Warren Barnwn and J. Mg Quire, for the appellant.
    IF. L. Norton and Qeorge B. Bradley, for the respondent.
   Bockbs, J.:

The learned judge before whom this cause was tried found and decided as matter of law that the provision in the articles of copartnership, stipulating for tne payment or allowance of ten per cent to the partners respectively on the average of their overdrafts in their bank or partnership accounts, did not render the instrument void for usury. This decision was put' on the ground that an overdraft, within the meaning of the contract, was not a loan of money, but was an advancement out of the common funds, 'and the interest returned therefor was for the common benefit, and partook of the risks and hazards of the business. We are inclined to adopt this conclusion as sound in law.

The business capital of the partnership consisted of a joint fund contributed by the parties, with such addition as their business as private bankers would afford by way of deposits. On their capital they were to conduct the business of banking, in the same manner and upon the same principle that the business of national banking associations was conducted, by virtue of the power conferred upon the latter by the so-called national currency act and its amendments, with an exception as to the amount of reserve fund to be kept on hand. The term of the partnership was ten years, with the right of an earlier dissolution on consent of the partners, and the latter were to bear the losses of the business alike, and were to share equally in its profits. Now, in the first place, it appears that all advances to the partners on overdrafts would be made from the joint or partnership fund; and, secondly, the result of the business only could determine whether or not there would be any profits to divide. There was, consequently, just that state of hazard connected with the business which would, according to the authorities, rescue the case from the effect of the statute against usury. It was not certain at all that either member of the partnership would ever get a return of lawful or of any interest whatever on his contribution to the fund, or indeed of any of such contribution itself. It is by reason of the risk and hazard attending bottomry or respondentia securities that they are held not to be within the statute of usury. So in Ord on Usury (39), it is laid down as follows : “ Recollecting that an usurious contract must be grounded on a loan, which implies a return of the principal, we may thence conclude that if money be advanced for a premium which exceeds legal interest, on a hazard or contingency, and is not to be repaid at all events, the contract is not usurious.” Of course the hazard must be real and substantial, not a slight and merely colorable risk, and not put. forward in appearance merely to cover up a corrupt purpose. The doctrine above extracted from Ord on Usury is also reiterated in Kelly on Usury (50), and in Oomyn on Usury (21 and 28). The rule of law is, too, very neatly stated in Tyler on Usury (185), as follows: Upon the same principle of contingency or hazard when persons are actually in partnership, an advantage to be taken out of the trade may be reserved in any way agreed upon, without subjecting the agreement to the charge of usury, for the moneys are not laying at interest, but employed in making profits, subject to losses; and although one partner retires, still if he continues liable to be sued the agreement for such advantage can not be usurious.” (See cases cited, pages 186, 187.) The doctrine above stated has been repeatedly recognized as sound by the courts ; indeed it has never been questioned. (See the following cases: Delano v. Wild, 6 Allen,. 9; Silver v. Barnes, 6 Bing. [N. C.], 180; 37 Eng. Com. Law, 571; Fereday v. Hordern, 1 Jacob, 144; 4 Eng. Ch., 144; Bur- bridge v. Cotton, 8 Eng. Law and Eq., 57; Gilpin v. Enderbey, 5 Barn. & Ald., 954; 7 Eng. Com. Law, 519 ; R. B. B. & L. Ass., 27 N.J. Eq., 223 ; also Mills v. S. B. & L. Ass., 75 N. C., 292 ; Hubert v. K. B. & S. Ass., 11 Bush., 296 ; Melville v. A. B. B. Ass., 33 Barb., 103.) While the above cases may not seem to be entirely harmonious in their conclusions, none of them intimate a doubt as to the correctness of the rule of law above eliminated from the text books. The apparent want of harmony in them has arisen rather from a supposed different state of facts than from any doubt as to the law applicable to cases of partnership wherein the question of usury has been raised between partners. We are of 'the opinion that in this case the stipulation in the articles of partnership, brought under examination, provided for the use of partnership funds; and, further, that the partners might agree for such use and’ employment of them as to them might seem best, without bringing their agreement within the purview of the statutes against usury. The learned judge was right, therefore, in holding that the articles of copartnership in this ease were not void for usury.

This being so found, it seems to us to carry with it the entire case, and that the learned judge should have further found that all the transactions proved before him were of like character as those covered by the stipulation relating to overdrafts. It was competent for the partners to agree between themselves as to the manner in which the partnership funds should be employed, and they might as well agree that the partnership would apply its funds to the use of one of its members at ten per cent on notes, as on overdraft^. In both cases it would be an agreement as to the mode of using the partnership funds by one of the partners. As regards the transactions relating to the notes of Freer, or on which he was liable, the agreement in effect was this: that advances might be made on them or in their payment from the partnership funds, at an allowance on the money so advanced or employed in the transactions relating to them of ten per cent. This was in legal effect and in fact the same as was the agreement as to the overdrafts, embodied in the articles of partnership, and different from the latter only in the fact that it related to notes instead of overdrafts, and rested in parol. If the agreement as to overdrafts was not open to the imputation of usury, the agreement as to the Freer notes was not within the denunciation of the statute. In both cases, as above suggested, the agreement i-elated to the way or manner in which the partnership funds should be employed, and the transactions partook alike of the contingencies and hazards which attended the general partnership business. .

The parties did not regard those agreements as at all differing in their nature or effect. Indeed, by consent of all concerned, the notes were put on the same footing with the overdrafts in so far as ¿he use and employment of the partnership funds were concerned. The notes were carried into Freer’s account on the firm or bank books, and were treated, as regards the moneys applied upon them, or to their payment, the same as were the overdrafts. It might well be found that the agreement, implied from the manner in which the business was conducted, was to the'effect that all moneys of the firm which should be advanced on or applied to the payment of Freer’s notes, for his use or benefit, should stand subject to like stipulation as that contained in the articles of copartnership relative to advances on overdrafts.

In conclusion we are of the opinion that the finding declaring the bond and mortgage in suit usurious and void was erroneous. The judgment must, therefore, be reversed.

Boardman, J., concurred; Learned, P. J., not acting.

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


text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. WILLIAM H. KIMBALL and Others v. THE BOARD OF SUPERVISORS OF ST. LAWRENCE COUNTY and Others.

      Legislative action — not reviewable by certiorari — Illegal delegation of power to a committee of supervisors.

    The action of a Board of Supervisors in delegating to a committee the power to locate and purchase a site for a “ Children’s Home,” where, in the judgment®; such committee, the interest of the county would be best subserved, and to incur on behalf of the county an indebtedness therefor, and for the erection of a building, etc., is legislative in its character and not reviewable by certiora/ri.

    Semble, that such action, together with all other and further proceedings, whether by the board or by the committee (including the issuing of bonds), having in view the carrying of such action into effect, is void.
    Certiorari to review the action of the Board of Supervisors of St. Lawrence County.
    The following proceedings of the board were contained in the return made pursuant to such writ:

      “ Resolved,, That Messrs. Sanford, Babcock and Richardson be a committee to locate and purchase a site for a Children’s Home; that they take into consideration the present offers from Ogdensburg, Norwood and Canton, and locate the same, where, in their judgment,- the interests of the county require, and that provisions be made to raise a sum not to exceed $10,000 for the purpose of site, building, etc., which bill shall also provide for a building committee.
    “Mr. J. M. Wells moved to amend the substitute by adding Messrs. Abram and Fleetham, and the motion prevailed by the following vote:
    “Yeas, * * * 18. Nays, * * * 14.
    “ The substitute, as amended, was then carried by the following vote:
    “Yeas, * * * 28. Nays, * * * 4.
    “Mr. Godard moved that the committee to locate site have power to appoint a building committee for the erection of the Children’s Home. (Carried.)

      “ Mr Godard introduced a bill entitled 'An act to authorize the treasurer of the county of St. Lawrence to issue certificates of indebtedness and borrow money on the credit of the county of St. Lawrence for the erection of a Children’s Home,’ and asked unanimous consent that the same .be referred to the committee of the whole.
    “ So ordered.
    “ The board then went' into committee of the whole on said bill. Mr. Robinson in the chair. On the rising of the committee the chairman thereof reported that the committee of the whole had had the said bill under consideration, had made some progress therein and asked leave to sit again.
    “ Report agreed to and leave granted.
    ******* *
    “Thursday, Dec. 2, 1880.
    * * ******
    “ By Mr. Godard:

      “Resolved, That the building committee for a Children’s Home receive and perfect plans and specifications for the erection of a Children’s Home, or repairs thereon, and furnishing the same. That said committee receive proposals for the building of said Children’s Home, or repairs and furnishing, and accept the most favorable proposals for the county, which shall not exceed $10,000, including site; such proposals to be accompanied with a bond conditioned for the faithful performance of the contract, in the sum of $5,000, with sufficient sureties, and which committee shall have power, as fast as different stages of the work are completed, to authorize the county treasurer to make partial payments upon such work, and shall have power to direct as to details in the building or repairs not fully provided for in the plans and specifications.
    “ Adopted.
    “ By Mr. Idler:
    “ Resolved, That the committee heretofore appointed by this board to locate a site for the Children’s Home be and they hereby are authorized, directed and empowered to purchase for, and in the name of the county of St. Lawrence, such site as they shall locate for said home, the purchase-price of which the treasurer of said county is hereby directed and empowered to pay upon proper certificates from said committee out of the funds provided therefor.
    “Adopted.
    ********
    “ The Board of Supervisors of St. Lawrence county do enact as follows:
    “Section 1. The treasurer of the county of St. Lawrence is authorized and directed to issue certificates of indebtedness of said county to the amount of $10,000, in denominations of not less than fifty dollars, nor exceeding $1,000, payable to bearer, dated March 1, 1881, with interest payable annually, one-half of which bonds shall mature within two years, and one-half within three years from said date, and which said county treasurer is authorized and directed to sell at a price not less than par and accrued interest, and apply the proceeds in payment for the site of said Children’s Home, and the-repairs and furnishing thereof, in accordance with the resolutions of said board, provided that such issue of certificates shall not exceed the bid accepted by the building committee, and cost of site.

      L. W. Russell, for the relators.

      Foote <& Kellogg, for the respondent.
   Bockes, J.:

We have no hesitation in declaring our opinion that the resolution adopted by the Board of Supervisors, December 2, 1880, by which that body attempted to delegate to a committee comprised of five of its members, the right to locate and purchase a site for the “ Children’s Home,” where in their judgment the interests of the county would be best subserved ; and in their discretion to incur indebtedness upon the county therefor; and also in the erection of a building on such site, with all other and further action, whether by the board or by the committee, having in view the carrying into effect the resolution, was without sanction of law and void. Nothing is better settled both on principle and authority than this, that rights, privileges and duties conferred „or imposed upon public officers and public bodies in the aggregate, cannot be delegated — especially is this so as to subjects and matters where judgment and discretion are to be invoked and exercised. The authority to select a site for the “ Home,” to contract for its purchase and to direct expenditures in the erection of the building, rested with the board, and required the exercise of the judgment and discretion of that body when legally convened for the performance of public duties. Its power and authority could be exercised in no other way. The substitution of a committee to take the ■ place of the entire board, as to matters involving the judgment and discretion of that body, was unauthorized; and all persons dealing with such committee would be bound to notice and knowledge of its incapacity to bind the county by any assumption of power by its' members. So, too, bonds of the county issued to carry out an unauthorized assumption of power would be invalid even in the hands of holders for value (Cagwin v. The Town of Hancock, 23 Alb. Law J., 313; Ogden v. County of Daviess, Id., 256.)

But the question here is whether the relators are entitled to the relief they pray for by certiorari. This proceeding is not taken to reverse a judgment or judicial determination of the Board of Supervisors, but to obtain the judgment of this court, declaring and adjudging a resolution of that body null and void. The relief desired is anomalous in a proceeding by certiorari, where the judgment can be only, as the cases hold, either one of simple reversal or affirmance of the determination of public officers or public bodies when acting in a judicial or quasi judicial capacity. In this case we think the relief sought by the writ was unnecessary and without precedent; unnecessary, as the resolution and action of the board and of its committee are null and void on the face of the record brought before us ; and unprecedented and unauthorized, because it is sought by this proceeding to review acts which are entirely legislative, executive and ministerial in character. The selection of a site for the “ Home,” the incurring of expense in its purchase, the erection of an edifice thereon, and the manner of its erection, and the extent of the entire expenditure rested in the discretion and judgment of the board and was legislative in character rather than judicial; as was, indeed, the subject itself, whether or not a site should be procured and an erection made. The carrying out and into effect the determination, when made, would be executive and ministerial. There was nothing of a judicial character in the exercise of the power and authority of the hoard over the subject. The action of the board in that regard could not therefore be reviewed by certiorari — such right is not given by statute, and it does not exist at common law. As laid down in the books, the office of the writ of certiorari is to correct errors committed by inferior courts, special tribunals, magistrates and even municipal corporations, when exercising judicial or quasi judicial powers, and acting summarily or in a way not known to the common law. Nor will the writ lie when the party affected by the act or acts complained of and sought to be reviewed has another adequate remedy in the courts. Citation of authorities in support of the above proposition has not been given because numerous and familiar. We are cited to The People v. The Board of Assessors (39 N. Y., 81), for the doctrine that the office of the writ extends to the review of all questions of jurisdiction, power and authority of an inferior body or tribunal to do the act complained of, and to all questions of regularity in the proceeding, and whether the inferior tribunal has kept within the boundaries prescribed for it by the expressed terms of the statute or by well settled principles of common law. Here, however, the court was speaking directly of tribunals and officers or. public bodies possessing and exercising judicial or quasi judicial function as regards the particular matter or subject of complaint; and this remark will properly apply to all that is relied on by the relator’s counsel contained in The People v. Mehropolitan Police Board (39 N. Y., 506), and in The People v. Supervisors of Westchester (57 Barb., 377), and in The People v. Supervisors of Madison (51 N. Y., 442). The decision most applicable to the case in hand is furnished us in The People v. The Supervisors of Livingston County (43 Barb., 232), where it is said : “ The- office of the writ of certiorai'i is to bring up for review in the superior court the record of an inferior court or of a tribunal exercising judicial functions. It is not the office of the writ to bring up the proceedings of any other bodies or classes of public officers. Courts are instituted to decide judicial questions, and superior courts review the record and proceedings of inferior courts or of officers or tribunals acting in a judicial capacity, and in no other.” In that case it was sought to review a resolution of the Board of Supervisors, as in this case, the passing of which resolution rested in the discretion of that body. The court remarked: “ In passing the resolution brought before us on this writ, the Board of Supervisors were not acting in any judicial capacity — they were acting purely in a legislative capacity ; ” and further, the question before the board “ was not a question of a judicial nature, but one of a clear legislative character.” It may be here remarked that the removal of officers for cause and the assessment and levying of taxes are held to be judicial or quasi judicial acts, hence a remedy exists by certiorari in those classes of cases. It was further held in the case last above cited that a cer tiorari would not lie to bring up incipient resolutions or proceedings upon which a tax might ultimately be based, before any tax was laid or any final adjudication or determination was had in the matter. To the same effect is the decision in Cuyler v. Trustees of Palmyra (3 Hun, 549). In these cases the writs were quashed.

For the reasons above given, we are of the opinion that the certiorari in this case should be quashed, but without costs.

Learned, P. J., and Bookes, J., concur in quashing writ for the reasons given. As the writ is quashed we cannot pass on the validity of the action of the supervisors.

Certiorari quashed, with costs.