text:
    The People ex rel. Richard S. Blodgett v. The Board of Town Canvassers of Coeymans. The People ex rel. Alton Van Derzee v. George W. Sickler, Town Clerk.

      (Supreme Court, Special Term, Albany County,

      Filed May 2, 1892.)

    T. Elections—Canvass — Recount.
    The court has no authority to direct the return of ballots to the inspectors in order that they may make a recount, or to direct the ballots to be. brought into court for that purpose.
    2. Same— Remedy in case of fraud or mistake.
    The remedy for frauds or mistakes other than clerical is by proper proceedings in court or before the board or body to membership in which the-person aggrieved is a candidate, where that board or body has the power conferred upon it to determine the qualification and election of its own members.
    Applications for mandamus.

      Eugene Burlingame, for the relator, Richard S. Blodgett; LewisCass, for the relator, Alton Van Derzee.
   Herrick, J.

The first entitled matter is an application to the-court for a mandamus directed to the board of town canvassers of the town of Coeymans, directing them to canvass the statement or returns of the inspectors of election in the second election district of the town of Coeymans, being a statement of the result of the recent town election in that election district.

The second matter is an application for an order directing the-town clerk of Coeymans to return to the inspectors of election of the second election district thereof the used ballots, stubs and statement of the result heretofore filed with such town clerk, in order that the inspectors may recount them and file a correct and true return; and it is asked that the first proceeding be held in abeyance until the hearing and determination of the second. While the request that the first proceeding be held in abeyance until the determination of the second is a perfectly proper one, and one that might well be granted, in order that the board of canvassers might not be compelled to canvass a return which, while regular and proper upon its face, is in fact false and fraudulent, and while an effort is being made to have a true and correct return made out and placed before them, still the conclusion at which I have arrived makes it unnecessary to suspend proceedings in the first application herein.

The return which it is asked to have canvassed, and which the inspectors ask to have returned to them, together with the used or voted ballots, and the stubs, sets forth that 222 votes were cast for the office of supervisor, in the second election district of the-town of Coeymans. That return is challenged as incorrect, because, as is alleged, 218 votes only were in fact cast for the office-of supervisor. To establish that allegation there is produced, in addition to the affidavit of one of the inspectors of election, a copy of the poll list, from which it appears that 223 sets of ballots were issued in that district on election day. There were two sets of tickets in use; one a ticket including the names of all candidates for town offices, another, what is known as the excise-ticket, and it is alleged by the inspectors, whose affidavit is produced, that out of the 223 sets of ballots that were issued, one person did not vote for the office of supervisor, and of the other-sets of tickets issued, four were not voted, but returned as spoiled! ballots, the persons to whom they were issued having been challenged, and not allowed to vote, thus reducing the number of. ballots voted to 218. The poll list corroborates this statement» It shows that 223 sets of ballots were issued. It shows that four ■■sets of ballots that were issued were returned as spoiled, and that 'the persons to whom they were issued did not vote, which would reduce the number of ballots cast to 219. In addition to this positive evidence there is the negative evidence contained in an ■answering affidavit made by one of the inspectors of election in opposition to this motion for a return of the ballots to the inspectors that they may be recounted. That answering affidavit utterly and entirely fails to make any answer to the allegations in the moving papers that in truth and fact only 218 ballots were cast for the office of supervisor. Neither does lie explain or attempt to explain the apparent difference between the poll list and the statement of the result filed by the inspectors of election. He •does not even swear that the returns are true, but simply that they •are proper and correct in form, which is not disputed.

That affidavit read as follows: “ Philip Ostrander, being duly ¡sworn, says he acted as and was one of the inspectors of election in. and for the second election district of the town of Coeymans, Albany county, at the town election held therein on the 12th day of April, A. D., 1892 ; that deponent, with the other inspectors in said district, canvassed the votes cast at said election in said district, and made Statements and return thereof, which was duly filed in the town clerk’s office of said town; that deponent has since examined the return on file in said clerk’s office from the four districts of said town for said election and finds them proper and correct in form, and that Richard S. Blodgett has a plurality of one for the office of supervisor of said town, as ■appears from the face of said return,” subscribed and sworn to, ■etc. The singularly careful way in which the affiant refrains from contradicting or explaining any of the material allegations in the affidavit of his brother inspector is strong corroborative ■evidence, although of a negative character, of the matters set forth in the moving papers.

It is practically admitted that of the 223 sets of ballots issued four sets were not voted, but were returned as spoiled, the parties to whom they were issued having been challenged; and it is not ■denied but one of the ballots voted had the name of the candidate for supervisor scratched from it, thus reducing the vote for supervisor to 218; that is the number of ballots that should have been in the box for the office of supervisor at the close of the polls, yet the statement filed says 222 were counted.

While it is evident to my mind that a mistake has been made, or a fraud perpetrated, I do not undertake to say whiph, yet I do not know of any law authorizing me to direct, the return of the ballots to the inspectors in order that they make a recount, or, as is asked in the alternative, to direct the ballots to be brought into court, in order that they may be recounted and a correct determination of the result arrived at.

While there are cases in which the court has the power to •direct a board of inspectors to reconvene and correct a canvass, to canvass votes that they have refused to canvass, or to refrain from canvassing votes that they have already erroneously canvassed. and counted, yet I know of no case where the court has ■directed the restoration of the ballots to them and a recount of the ballots thus restored.

In fact to do so is to connive at a violation of the law, because the town clerk has no right to have the used ballots in his possession ; the law presumes that they are no longer in existence. The ballot reform act, so called, is silent as to what shall be done with used or voted ballots, and when it is silent we must resort to the election laws in existence prior to its passage, when such prior laws are not inconsistent therewith. Chapter 130, title 4, 47, of the Laws of 1842 reads as follows : “ The remaining ballots not so pasted or attached shall be destroyed, and the board of inspectors shall be dissolved.” See Election Code, p. 98 ; Birdseye’s Statutes, p. 937, § 86. I cannot find that this law has ever been repealed, and I do not see how I can command the return of ballots to be recounted when the law requires their destruction and presumes that they have been destroyed. Must, then, the board of town canvassers canvass and count a certificate that is apparently founded upon a mistake or fraud ?

Boards of inspectors of elections and canvassers have no power conferred upon them to correct frauds or rectify mistakes, except clerical ones. Their duty is simply to count, in one case, the ballots actually found in the ballot box at the close of the polls, and in the case of canvassers, to add together the statements of results filed with them by the inspectors.

The remedy for frauds and mistakes, other than clerical, is by proper proceedings in court or before the board or body, to membership in which the person aggrieved is a candidate, where that board or body has the power conferred upon it to determine the •qualification and election of its own members. The board of supervisors has such power, and the error that has been committed here, if any, can be rectified by that-board.

While it is repugnant to one’s sense of justice to compel the board of canvassers to canvass and count a return founded upon -a mistake or a fraud, yet to refuse to do so opens the door to great possibilities of evil; to permit them to refuse to canvass because of mistake or fraud i$ the making out of the statement or :return where it is regular in form is to permit boards of canvassers to take cognizance of matters outside of the returns; it is to permit them to act as courts to determine the validity of the returns, and the honesty of the elections ; is to place our whole ■election system in the hands of boards not organized for such purposes ; to nujke returning boards of them; it would be subversive of our entire scheme of elections.

The election officers, from inspectors up to the board of state ■ canvassers, are vested with no power to decide anything ; they are .simply to receive and afterwards count what they have received; the inspectors, the ballots; the board of canvassers, the returns made by the inspectors.

If the ballots in form and character comply with the law, and the voter’s name appears on the registry and he takes the prescribed oath, the inspector is bound to take the ballot and count it; if the statement comes from the inspectors of election and is correct, in form, the board of canvassers is bound to receive and canvass it; all questions of fraud or mistake, except clerical ones in the statement, are to be passed upon by the courts or such other tribunals as are designated by statute; the law is careful to impose upon inspectors and canvassers no duty except to receive and count. The power to investigate and determine is carefully withheld from them.

I have said that the remedy for fraud and mistake is by proper-proceedings in court. I mean by that the appropriate action to. determine who has been elected. This proceeding before me is, not for that purpose. In a proceeding of this kind the court can only compel the election officers to do that which it is their duty under the law to do without compensation ; it may advise them what the law is, what they ought to do, and compel them to do it, but it can give them no new or additional power, neither can it, act for them.

For these reasons the application by relator Yan Derzee for a return of the ballots to the inspectors and for a recount by them must be denied; and such application being denied, the only return before the board of town canvassers being the one already filed, that is the only one that can be acted upon by them. This being regular in form, and such board of canvassers having no-right under the law to take into consideration anything but the statement before them, the application for a mandamus directing them to count and canvass the statement from the second election district must be granted, and a mandamus must be issued accordingly. . ■

. Under the circumstances, I do not think I would be justified in granting costs in either matter.


source: Caselaw Access Project

author: Pratt, J.

license: Public Domain

text:
    Gilbert Griffin, Resp’t, v. Max T. Porawski, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed February 8, 1892.)

    Landlord and tenant—Rent—Evidence.
    In an action for rent evidence was admitted of declarations of defendant’s wife made before the conclusion of the first year that they were not going to move. It also appeared that defendant paid rent for a part óf the following year. Held that the admission of the declarations of the wife did not prejudice defendant, as a new tenancy could be inferred from the, subsequent payments of rent.
    Appeal from judgment of the county court of Kings county,, affirming judgment of justice’s court in favor of plaintiff. Action, to recover rent for the months of February and March, 1891, of certain premises. Plaintiff claimed that defendant leased the-premises for one year, from May 1, 1889, and that he continued to hold over after May 1, 1890, and thereby became a tenant for-another year.
    Defendant claimed that he was a tenant by the month and that he was evicted by plaintiff shutting off the water from the water closets in the house.
    The rent was paid to January 1, 1891. On the trial evidence was admitted showing that defendant’s wife in April, 1890, in .answer to a question by plaintiff if she was going to stay another year, replied “Yes, we are not going to move unless you turn us ■out, for Mr. Porawski don’t like to move.” The evidence as to whether plaintiff shut off the water so as to constitute an eviction 'was conflicting.

      Geo. G. Eldridge {Geo. W. Miller, of counsel), for app’lt; James J. Rogers, for resp’t.
   Pratt, J.

This is a hard case; it charges the defendant for premises he did not occupy and which he undoubtedly vacated under the supposition that he had a right so to do and avoid paying any more rent, but we are unable to say there is any such error of law or fact as to justify a reversal of the judgment.

The finding of the justice upon questions of fact from conflicting testimony must stand like the verdict of a jury, and the findings seem to sustain the legal conclusions reached by the justice.

The admission of declarations made by the wife did not prejudice the defendant, as a new tenancy could be inferred from the payment of rent by the husband upon the new term.

Upon the question of eviction the evidence was conflicting, and the finding of the justice is well sustained by the proof. Judgment affirmed, without costs.

Barnard, P. J., and Dykman, J., concur.


text:
    Halcyon Skinner, App’lt, v. Harriet S. White, Sued as Sophia H. White, Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed February 8, 1892.)

    Pleadins—Amendment.
    Pending a hearing before a referee, the special term granted an order amending the answer by setting up the defense of coverture. Held, that the court had power to make such amendment, and that it was not too late to do so.
    Appeal from order of special term granting motion for leave to amend answer by setting up the defense of coverture. Action ■on bond made by defendant. At the time the motion was granted, the case was pending before a referee, and had been twice adjourned. The motion was granted on condition that defendant pay ten dollars costs of motion and all taxable costs, including referee’s fees to date.

      Ralph E. Prime, for app’lt; James M. Hunt, for resp’t.
   Pratt, J.

We think in this case the court at special term not ■only had the power to grant the order appealed from, but that it was a wise exercise of the power to grant the amendment, and that the terms were just and proper.

It is not improbable that if the plaintiff had requested that he be allowed to discontinue as a part of the terms for allowing the amendment he might have been permitted to do so, but it does not appear that any such request was made, and it is now too late to make that objection.; besides, we think the terms were severe enough to meet the demands of justice in the premises.

It was not too late for the defendant to make the motion to amend her answer, as the Code, § 723, provides that the court. “ may, upon the trial or at any stage of the action, * * . * amend any process or pleading.” To deny the power of the court, to make such an amendment challenges its power to do justice.

Order affirmed, with costs.

Barnard, P. J., and Dykman, J., concur.


text:
    Frank Lyons, App’lt, v. John P. Jube et al., Resp’ts.

      (Supreme Court, General Term, Second Department,

      Filed February 8, 1892.)

    Services—Commissions.
    Plaintiff sold goods on commission for defendants, and also made collections from his customers when on the road. Frequent settlements were-, had, but no charge for collecting was made,-except in a few cases. After leaving their employ he brought this action for commissions on such collections. Held, that the complaint was properly dismissed.
    Appeal from judgment dismissing the complaint

      A. J. Spencer, for app’lt; Charles H. Machín, for resp’ts.
   Pratt, J.

The proof shows that plaintiff sold goods for defendant on commission for upwards of five years.

An account was kept between the parties which was open to-plaintiff to examine at any time. Frequent settlements were had and receipts in full were given.

After leaving defendant’s employ plaintiff brings this action to-recover for collections made by him during the five years. During that time no account of the collections made "by him had been kept by either party; the amount must be conjectured.

His claim was not advanced until after his employment ceased.

The fact that in a few cases he rendered a bill and received pay for certain collections may be considered as an evidence that in the other cases no charge was to be made.

On the whole case the fact appears to be that plaintiff when going among his customers to make sales took with him the bills made out for past sales, and collected them at the same visit. It. might, well be that so doing would impose no burden upon him, and that he would willingly make the collections to help along the business, and make his usefulness more apparent.

We think it was correctly held below that no express contract' for further compensation was proved, and that none could, be; implied.

Judgment affirmed, with costs.

Barnard, P. J., and Dykman, J,, concur.


author: Barnard, P. J.

text:
    Eliza J. Murray, Appl’t, v. Catharine Molloy et al., Resp’ts

      (Supreme Court, General Term, Second Department,

      Filed February 8, 1892.)
    Ejectment—Title.
    In an action of ejectment between adjoining owners, it appeared that, plaintiff’s grantor had previously held a mortgage which covered the strip> in question, which he released, therefrom, and that the subsequent deeds of the mortgagor under which plaintiff claims did not embrace the disputed strip, but the description in the deeds under which defendant claims were sufficient to support a finding that the change made by the release entered into the description of her lot. Held, that a dismissal of the complaint was proper.
    Appeal from judgment dismissing complaint, entered on the report of a referee.
    Action of ejectment for a strip of land.

      iS. S. Hemingway, for app’lt; Frederick Cobb, for resp’ts.
   Barnard, P. J.

The plaintiff in August, 1880, became the -owner of lot 21, on a map recorded in Kings county in liber 939, page 232. The defendant is the owner of lot 22, which adjoins 21 on the west. When the plaintiff acquired title to lot 21, she took possession and held it for many years. In 1889 the defendant took possession of a piece of land in the occupation of plaintiff, being the piece of land described in the complaint. The sole ■question was one of fact. The plaintiff obtained title front one Moses Littell. The title originally was in Frederick B. Hill. Hill gave a mortgage to Littell, and Littell released the strip in question back to Hill The deeds from Hill of the property in question did not, after this release, embrace the disputed strip of land down to the time plaintiff bought.

At least this is the finding, and the surveyors differ as to the fact. The description in the deeds under which defendant claims title support the finding that the change made by the release •entered into the description of the lot 22, which defendant owns.

There is nothing in the release from which an appellate court ■can say that the finding is unsupported by the evidence.

The judgment should therefore be affirmed, with costs.

Dykman and Pratt, JJ., concur.


text:
    Philip Decker, App’lt, v. David Hammond, Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed February 8, 1892.)

    Guaranty—Cohsidbbatiok.
    Plaintiff having a claim against one of defendant's employees, the latter promised to pay a certain sum weekly and authorized defendant to pay these amounts, and it was claimed that defendant agreed to become responsible for and guarantee the debt. The authority to pay was after-wards withdrawn. Held, that no consideration for the guaranty being shown, it was not binding upon defendant.
    Appeal from judgment of the Orange county court, reversing judgment of justice’s court in favor of plaintiff. Plaintiff held a judgment recovered upon a board bill against one Wyncoop, who was employed by defendant. Nine years after its recovery an 1 execution was issued thereon and the constable with plaintiff’s attorney visited defendant’s place and saw Wyncoop and defendant. Wyncoop agreed to pay a certain sum per week until the claim was paid,' and signed an instrument authorizing defendant to pay said sums, and defendant then paid ten dollars thereon. It was claimed that defendant at the same time executed an instrument, agreeing to become responsible for the debt and to guarantee the same; which was denied by defendant. Mo such paper was produced, but plaintiff’s attorney testified to what he claimed were the contents thereof.

      ■Wilton JBennet, for app’lt; Howell, Parsha.ll & Schofield, for resp’t.
   Pratt, J.

There is an entire failure to show that the alleged agreement of defendant to become responsible for the debt of Wynltoop was based upon any consideration.

A guaranty, like any other agreement, to be valid, must be-based upon a consideration.

There was no legal basis to sustain the verdict of the jury,, which was properly set aside by the county judge.

Order appealed from reversed, with costs.

Barnard, P. J., and Dykman, J., concur.


text:
    George V. Brower, Rec’r, Pl’ff, v. William A. Huested, Impl’d, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed February 8, 1892.)

    Venue—Foreclosure—Convenience of witnesses.
    The place of trial of an action to declare void three mortgages is properly changed from a county in which none of the property to be affected is situated and where none of the parties reside to a county in which the property covered by two of the mortgages is situated and which will best. subserve this convenience of witnesses.
    Appeal from order granting motion to change the place of' trial from Westchester county to the county of Kings.
    Action to" set aside three mortgages given by the Ridgewood Ice Company, of which plaintiff is the receiver, and to restrain the defendant mortgagees from foreclosing the same. Two of the mortgages were filed in the office of the register of Kings county, and it did not appear that any of the property covered by the-mortgages was situated in Westchester county. Plaintiff and defendant Huested reside in Brooklyn, where the principal office of" the defendant, the Brooklyn Trust Co., is; defendant Downer resides in Rensselaer, Yoye in Albany and Baucus in Saratoga county.

      Henry Daily, Jr., for app’lt; Hdgar T. Brackett and Joseph A. Shoudy, for Joseph D. Baucus, resp’t.
   Barnard, P. J.

The Ridgewood Ice Company is a' domestic-corporation. Its principal place of business was in Brooklyn-until the receiver was appointed. The object of the action brought ' by the receiver is to set aside three mortgages given by the corporation ; none of the parties reside in Westchester county. Two-of the mortgages sought to be set aside affect real estate situate-in Kings county. There is no property, real or personal, in Westchester county to be affected by the judgment. The place of.' trial belongs of right in Kings county. Code, § 982.

The principal contesting defendants except the defendant. Downer and the attorneyrgeneral, as well as the plaintiff, consented to the change of place of trial. The papers show that Kings county is the best place to subserve the convenience of witnesses. It seems that no one lives in Westchester county who will be convenienced by the place of trial being returned there.

The order should, therefore, be affirmed, with costs and disbursements.

Dykman, J., concurs; Peatt, J., not sitting.


author: Pratt. J.

text:
    Sarah A. Swift, by Guardian, Resp’t, v. The Staten Island Rapid Transit R. R. Co., App’lt.

      (Supreme Court, General Term, Second Department,

      Filed February 8, 1892.)

    Negligence—Weight of evidence—Variance.
    In an action by plaintiff's father based on the same injuries to her, a recovery was had which was affirmed on appeal. In this action the engineer who then testified that the whistle was not blown until plaint iff was struck was not produced, and two witnesses who corroborated him varied their testimony, and a police officer testified that the whistle was blown. Plaintiff's testimony was m harmony with that given by her in the previous case. Held, that a verdict in her favor would not be disturbed.
    Appeal from ’judgment in favor of plaintiff, and from order denying motion for a new trial.
    Action for inj uries alleged, to have been caused by defendant’s negligence.

      Tracy, Boardman. & Plait, for app’lt; James G. Foley, for resp’t.
   Pratt. J.

The appellant concedes that as one action based on this accident was determined in favor of the plaintiff and the re•covery sustained in the court of appeals, see Swift v. S. I. R. T. R. R. Co., 123 N. Y., 645; 33 St. Rep., 604, the same result must follow in the present case unless variations can be found in the testimony given in the actions sufficiently serious to prevent a recovery.

Comparing the testimony given upon the two trials we discover that the engine driver produced by defendants upon the former trial, and upon whose testimony the plaintiff’s recovery may well have been based, was not produced upon the present trial. And two witnesses whose testimony upon the former trial- supported that of the engineer, being called upon this trial by the plaintiff, were stricken with a loss of memory.

And on the former trial the engineer testified that he did not blow the whistle until the engine struck the plaintiff; while on this trial a police officer testified it was blown much earlier. After making all due allowance for these changes, we are of opinion that the testimony warranted the verdict.

The plaintiff testified, and her evidence, if believed, was ample to sustain the verdict.

It is suggested that her injuries have enfeebled her mind, and, therefore, detract from the weight to be given to her testimony.

That is a matter peculiarly within the province of the jury, ¿and, as her testimony on the second trial was in harmony with that previously given, the jury may have considered that sheeompares favorably with the other witnesses.

It is plain that they believed her testimony, and we cannot say they were wrong in so doing.

We find no errors in the admission of evidence, and the judgment must be affirmed, with costs.

Barnard, P. J., and Dykman, J., concur.


author: Earl, Ch. J.

text:
    The People, Resp’ts, v. Alexander Meakim et al., App’lts.

      (Court of Appeals,

      Filed April 26, 1892.)

    1. Excise—Indictment against commissioners for failure to perform duty.
    The hoard of excise are bound to receive a complaint against a person for violating his license, and entertain it, and to summon the person licensed, and if they become satisfied of a violation of the law by the person summoned, they are bound to revoke, cancel and annul his license. They are bound to make a determination, and if they do not make it, they violate the duty imposed upon them by law, and are liable to indictment.
    2. Same—Penal Code, § 117—“Punishment.”
    The provision of § 109 of the Laws of 1882, chap. 410, that the commissioner of excise shall “be removed for any neglect or malfeasance in office-in the same manner as provided by law for the removal of sheriffs,” is not., a provision for a punishment within the meaning of § 117 of the Penal Code, but merely for a removal from office.
    3. Same—Code Civ. Pro., § 2090.
    The remedy provided in § 2090, Code' Civ. Pro., providing for a civil proceeding for a refusal or neglect to perform a public duty imposed on a public officer, is no bar to an indictment under § 117 of the Penal Code.
    Appeal from judgment of the supreme court, general term,, first department, reversing order made by court of oyer and terminer, arresting judgment on a verdict in favor of the People on the trial of a plea of former acquittal interposed by the defendants.
    The defendants were indicted under § 117 of the Penal Code, which provides as follows : “A public officer, or person holding a public trust or employment, upon whom any duty is enjoined by law, who wilfully neglects to perform the duty, is guilty of a. misdemeanor. This and the preceding section do not apply to-cases -of official acts or omissions, the prevention or punishment of which is otherwise specially provided by statute.” The indictment alleges that on the 29th day of March, 1889, at the city of Hew York, a license in due form of law, to sell strong and spirituous liquors, ale, wine and beer, to be drank on the premises there-situate, was duly granted and issued to Henry Ahrens by the board of excise of the city and county of Hew York, which license was in'full force and effect for one year thereafter ; that on the 6th day of January, 1890, the defendants were commissioners of excise for the city and county of Hew York; that at that date> one Welling, a resident of the city, duly made a complaint in writing to the defendants as such commissioners that Ahrens carried on the business of selling intoxicating liquors on election day, Hovember 5, 1889, within one-fourth of a mile of the polling place, in violation of law; that on the 13th day of January thereafter the defendants as such commissioners summoned Ahrens, before them; that in pursuance of such summons he appeared before them on the 18th day of February; that ou that day there was a hearing and inquiry upon and into the allegations and charges, and evidence was taken and the case finally submitted for their action and decision'; that it was their duty to act upon and decide the complaint and the questions arising thereon within a reasonable time; that nevertheless they as such commissioners, unlawfully, wilfully neglected and omitted to perform their duty and act upon and decide the complaint and the questions arising thereon within a reasonable time; but on the contrary, for an unreasonable time thereafter, and until the finding of the indictment,, unreasonably and designedly failed and intentionally omitted to decide the complaint and the questions arising thereupon, by reason whereof the license granted to Ahrens expired pending and without such action, determination and decision, against the form of the statute in such case made and provided.
    The defendants were arraigned upon the indictment and interposed a plea of former acquittal of the crime charged against-them. Upon the issue formed by this plea the case was brought to trial, and under the direction of the court the jury found in. favor of the plaintiffs. Thereupon the defendants made a motion, in arrest of judgment upon the verdict. That motion was denied,, and from the order denying the same the defendants appealed to-the general term and from affirmance there to this court.

      George F. Danforth and A. J. Dittenhoefer, for app’lts; Henry B. B. Stapler, for resp’ts.

       Affirming 40 St. Rep., 686.

   Earl, Ch. J.

Upon a motion in arrest of judgment the only objections which a defendant can take are to the jurisdiction of the court over the subject of the indictment, and that the facts-stated do not constitute a crime. Code Grim. Pro., §§ 331, 467; People v. Buddensieck, 103 N. Y., 487; 3 St. Rep., 664. It cannot be questioned that the court had jurisdiction of the subject of the-indictment, and therefore the only question which needs our attention is whether the facts alleged constitute a crime.

It is provided in § 8 of chapter 549 of the Laws of 1873, which amends prior acts, as follows : “ The board of excise of any city, town or village, may at any time, and upon the complaint of any resident of said city, town or village, shall summon before them any person or persons licensed as aforesaid; and if they shall become satisfied that any such person or persons has or have violated any of the provisions of this act, or of the acts hereby amended, they' shall revoke, cancel and annul the license of such person or persons, which they are hereby empowered to do, and where necessary, to enter upon the premises and take possession of and cancel such license. Upon an inquiry, the said board, or the party complained of, may summon, and the said board may compel the attendance of witnesses before them and examine them, under oath.”

The indictment against the defendants was for unlawfully neglecting to perform their duty upon the complaint made to them under this section. The alleged violation of the excise law by Ahrens was on November 5th, 1889. The complaint.to the defendants was made on the 8th day of January, 1890. The hearing upon the complaint was on the 18th day of February, 1890, when the case was finally submitted to them. It was then clearly •their duty to decide the matter thus submitted. It is not expressly provided in the statute that they shall proceed and make a determination of the matter within any particular time; and indeed there is no express provision that they shall make any determination whatever. But that they shall is necessarily implied in the statute, and what is necessarily implied is just as much a part of the statute as if it were specially written therein. They -were bound to receive the complaint and entertain it, and to summon the person licensed. They had authority to summon witnesses -and hear evidence, and if they became satisfied of a violation of the law by the person summoned, then they were bound to revoke, ■cancel and annul his license. If they could, after entertaining the ■complaint and hearing the evidence, entirely omit to make any ■decision, they could always frustrate the law with impunity. Where public officers are clothed with jurisdiction to hear complaints and take evidence with a view to some action in which individuals or the public are interested, they are, from the nature ■of the case, bound to make a determination, and if they do not ■make it they violate the duty imposed upon them by law. Here the case was finally submitted to the commissioners more than a year before the indictment was found, and they made no determination thereon, permitting Ahrens’ license to expire by its own limitation. That it is a public duty imposed by the statute upon ■commissioners of excise in sucha caseto make a determination ■and decision was expressly decided by us in People ex rel. Welling, against these defendants, 123 N. Y., 660; 34 St. Rep., 1009, affirming the same case reported in 56 Hun, 626; 31 St. Rep., 928.

The learned counsel for the defendants contends that they were mot liable to indictment under § 117 of the Penal Code, by Teason of the provision therein contained, that that and the preceding section “ do not apply to cases of official acts and omissions, "the prevention or punishment of which is otherwise specially provided for by statute;’’ and he claims that the prevention or punishment of the alleged offense of the defendants is otherwise provided for. We will notice separately the grounds upon which he bases this claim.

In § 109 of the New York Consolidation Act (Laws of 1882), it is provided that the commissioners of excise shall “ be removed for any neglect or malfeasance in office in the same manner as •provided by law for the removal of sheriffs." His argument is that the removal provided for by this section is a punishment •and that therefore the neglect of official duty charged to the ■defendants can be thus punished. The question is whether the removal of the commissioners of excise under that provision is a punishment within the meaning of § 117 of the Penal Code, and we are clearly of the opinion that it is not. It is true that it is provided in § 3 of the Penal Code that a crime is an act or omission prohibited by law, and punishable upon conviction by-death, or imprisonment, or fine or “removal from office," etc.. But these are punishments imposed only after a conviction for a. crime, and there are a number of cases specified in the Penal-Code where removal from office follows a conviction of a public-officer for a crime. Sections 42, 45, 53, 54, 72, 707 and 708. Section 707 contains a general provision that a sentence to a. state prison for any term less than life forfeits all the public offices held by the person sentenced. It is provided in § 1 of. article 6 of the Constitution that a public officer impeached shall be removed from office, but it is further provided that the party impeached is still liable to indictment and punishment according-to law, thus showing a distinction between a mere removal from, office and a punishment for an offence on account of which the removal was made. The simple removal of an officer from office is not a punishment for crime unless it is a removal in consequence of a conviction for a crime. It cannot be said that a determination made in a civil proceeding to remove a public officer for neglect or malfeasance in office is in any proper sense a conviction of such officer of a crime. Nor can it be said that th& provision for removal from office contained in § 109 is a provision in any proper sense for the punishment of the officer-removed. His removal simply deprives him of the office which he is unworthy to hold, and he may be removed and thereafter-punished for any malfeasance or criminal violation of the law committed while in office. It would be against the policy of our-laws as shown by numerous acts of the legislature that a public-officer guilty of a misdemeanor in office should suffer only by removal from his office, and a legislative intent requiring such a-, result should be found expressed in very clear and- precise language.

But a further claim is made, under the same clause of § 117, that other provision for the punishment of these defendants for the crime charged against them is found in § 2090 of the Code-of Civil Procedure, in which it is provided that, “ where a final-order awards a peremptory mandamus directed to a public officer, board or other body, commanding him or them to perform a public duty, enjoined upon him or them by special provision of law, if it appears to the court that the officer, or one or more members-, of the board or body, have without just excuse refused or neglected to perform the duty so enjoined,.the court, besides awarding to' the relator his damages and costs, as prescribed in this article, may, in the same order, impose a fine not exceeding $250 upon the officer, or upon each member of the board, who has so refused or neglected. The fine, when collected, must be paid into the treasury of the state ; and the payment thereof bars any action for a penalty incurred by the person so fined, by reason of his refusal or neglect to perform the duty so enjoined.” It will be observed that special provision is made as to the effect of the imposition and payment of the fine, to wit: That it shall bar any other action for a penalty, not any other punishment-for crime, nor any indictment for the crime. Under that section there is no conviction of a crime, and probably there could not be without violating the constitutional rights of a public officer. It is exclusively a civil procedure, a civil remedy for a refusal or neglect to perform a public duty imposed upon a public offioer. He cannot be imprisoned or sentenced under that section, and none of the consequences follow from the imposition of a fine there imposed which may follow a conviction for a crime. But even if the fine imposed under that section could be regarded .as a punishment for a crime, the proceeding under that section is .not exclusive. The fine is only imposed as incidental to the civil remedy; and if it be assumed that a mandamus could have been •obtained against these defendants on behalf of the People to compel them to make a determination upon the complaint made to them, and that they could have been fined in that proceeding, and that if such a proceeding had been instituted and they had "been fined and had paid the fine those proceedings could have been set up as a bar to this indictment, it is a sufficient answer to saj’ that no such proceeding was instituted, and that therefore these defendants can have no defense to this indictment upon that section.

Still' further, the prevention or punishment contemplated in § 117 must be “ otherwise specially provided by statute.” Some force must be given to the word “specially.” It is not enough ■.that the prevention or punishment is in some other way provided by statute, but it must be “ specially ” provided. The provision ■contained in § 2090 for the imposition of a fine is general and not special. It is as general as § 117. What undoubtedly -is meant by this clause in § 117 is where the prevention or punishment is specially provided for a particular case. If there had been any particular provision for the prevention or punishment of the particular offense charged against these defendants in the in■dictment, then § 117 would not have been applicable. It is provided in § 14 of the Penal Code that “ a person convicted of a crime declared to be a felony, for which no other punishment is specially prescribed by this Code, or by any other statutory provision in force at the time of the conviction and sentence, is punishable by imprisonment for not more than seven years, or by fine of not more than $1,000, or by both; ” and in § 15 it is provided that “ a person convicted of a crime declared to be a misdemeanor, for -which no other punishment is specially prescribed by this Code, ■or by any other statutory provision in force at the time of the •conviction and sentence, is punishable by imprisonment • in a penitentiary, or county jail, for not more than one year, or by a fine of not more than $500, or by both.” To take a case out of these general provisions it is'needful to find some provision of law specially prescribing the punishment for the particular crime under consideration.

But there is' a still broader view to be taken of the point which we are now considering which ought not to be overlooked. The sections of the Penal Code and of the Code of Civil Procedure referred to do not provide for alternative punishments. A pub-lie officer offending by a neglect to discharge his public duties may be proceeded against and punished under both sections without-violating his constitutional rights by putting him twice in jeopardy for the same offense.

The mandamus proceeding is purely a civil remedy, and the ■fine therein imposed is, at most, the imposition of a penalty; and so it is spoken of in the case of The People ex rel. Garbutt v. The Rochester, &c., R. R. Co., 76 N. Y., 294, and it is well settled that the law may provide for the recovery in a civil action of a penalty and for a criminal proceeding by indictment against the party for the same offense. In People v. Stevens, 13 Wend., 341, it was held that where a statute creating an offense imposes a specific penalty, and also declares that the offense shall be a misdemeanor, punishable by fine and imprisonment, the offender is subject to indictment in like manner as he would have been had the offense been a misdemeanor at common law. Sutherland, J., writing the opinion, said: “It is undoubtedly competent for the legislature to subject any particular offense both to a penalty •and a criminal prosecution. It is not punishing the same offense twice. They are but parts of one punishment. They both constitute the punishment which the la'w inflicts upon the offense. 'That they are enforced in different modes of proceeding, and at different times, does not affect the principle. It might as well be contended that a man was punished twice when he was both fined .and imprisoned, which he may be in most misdemeanors.” In Blatchley v. Moser, 15 Wend., 215, that case was approved, and it was there held that an indictment for selling spirituous liquors without license as a tavern keeper is no bar to an action for the ■penalty given by the statute in such cases. In Lawyer v. Smith, 1 Denio, 207, the action was on the statute, 1 R. S., 696, § 1, .giving treble damages to the party injured against one who negligently sets fire to his own woods, and it was held that the action was penal in its nature and as to two-thirds of the recovery that it was wholly penal. The same statute made the act for which treble damages could be recovered a misdemeanor punishable by fine and imprisonment, and yet it was not doubted that the penalty could be recovered and the guilty party also punished for a misdemeanor. There is a class of actions in which punitive damages may be recovered by a plaintiff for the purpose of punishing the defendant, and the punishment of a defendant by a ■civil action in that way has never been held a bar to an indictment where the acts complained of were also, either at common law,"or by statute, a misdemeanor. Chiles v. Drake, 2 Met. (Ky.), 146. By § 8 of the Code of Civil Procedure a court of record "has power to punish for a criminal contempt a person guilty of certain acts mentioned, and by § 143 of the Penal Code the same .acts are declared to be misdemeanors, and are made punishable ■•as such.

These provisions have been embodied in our law for a long hme, 2 R."S., 278; and it has never been supposed that a punishment under either law was a bar to a proceeding under the other. Bishop on Grim. Law, § 1067. Indeed it is provided in § 13 of the Code of Civil Procedure, as it was also provided in the Eevised Statutes, that punishment for a contempt in a civil .proceeding “ does not bar an indictment for the same offense, but that, when a person who has been so punished is convicted on such an indictment, the court in sentencing him must take into consideration the previous punishment.”

It is a general rule that the recovery of punitive damages, or k penalty in a civil action, or the imposition of a fine in a civil proceeding, does not bar a criminal punishment "of the person for the same act. 1 Bishop on Criminal Law, supra.

We have not exhausted the discussion on this interesting point. We' have, however, gone far enough to show that the remedy provided in § 2090 is no bar to an indictment under § 117 of the Penal Code, and nothing in conflict with this was decided in People ex rel. Garbutt, supra. There Judge Eapallo said: “ This power of the court granting the mandamus to fine for past negglect was intended to obviate the necessity of a criminal prosecution under the statute which constitutes such a neglect a misdemeanor, and to enable the court awarding the mandamus to dispose of the whole matter in one proceeding.” He did not say that the power of the court granting the mandamus to fine for past, neglect stood in the way of a criminal prosecution. It is quite true that generally in a mandamus proceeding a sufficient punishment could be imposed; and whatever punishment by way of fine might there be imposed would be taken into account by any court in measuring ite punishment upon a conviction of the-same person for a misdemeanor under § 117. Ordinarily the punishment inflicted in the mandamus proceedings would end the whole matter; and that' is what J udge Eapallo had in mind.

Our conclusion, therefore, is that the objections to the order-appealed from are untenable, and that it should be affirmed.

All concur, except Maynard, J., not voting.


author: Gray, J.

text:
    Clara A. Schumaker, Resp’t, v. Joshua Mather et al., App’lts.

      (Court of Appeals,

      Filed April 26, 1892.)

    1. Fbahd—Exchange of hands—Change.
    Plaintiff sued for fraud in an exchange of lands, in which transaction' her husband was her agent. The judge charged the jury that the question of fact they were to determine was whether the defendant made the representation in substance that “the Borne farm did keep and maintain from its products 100 head of cattle and 16 horses,” and their inquiry must be confined to this question : that the representation must have been ' intentionally made, and must have been such as to convey the idea, not. that the farm would keep from its products, but that it did actually keep-through the year that number of cattle and horses. He then charged them that they should consider whether plaintiff had full opportunity to examine and find out about the farm, so that she could not allege that she-was drawn into this trade by misrepresentations, and left it to them expressly to say “whether or not, even if this representation was false' and was made with intent to deceive, it was relied upon, and was the representation and thing which induced and brought about this purchase. If you find that it was not, the plaintiff’s cause of action fails.” Held, that the charge was perfectly fair, and as favorable to the defendants as they could have reasonably expected.
    :2. Same—Representation.
    The representation alleged to have been made was capable of being understood in the sense of a representation that defendant was able to keep and was actually maintaining on the farm the number of horses and cattle mentioned. It related to a material fact affecting the quality of the farm and its actual value for a certain purpose which lay peculiarly within defendant’s knowledge, and the falsity of which could not have bem ascertained by plaintiff by the exercise of common prudence and the faculty of sight, and hence she had a right to rely absolutely upon it.
    Appeal from judgment of the supreme court, general term, fourth department, affirming judgment in favor of plaintiff entered on verdict of jury and order denying defendants’ motion for new trial.

      John W. Boyle, for app’lts; Oswald Prentiss Backus, for resp’t.

       Affirming 38 St. Rep., 542.

   Gray, J.

The plaintiff sued the defendants to recover of them the damages alleged to have been sustained by her by reason of false and fraudulent representations made by them upon the sale of their farm. The farm was near Rome, in Oneida county, jST. Y., and the defendants took in exchange the plaintiff’s farm near Richfield Springs, in Otsego county, IST. Y; the sale being upon •certain terms which are not necessary to be fully stated. In the exchange of properties, the valuation of the defendants’ farm was placed at about sixty-five dollars for the acre. The plaintiff, in her complaint, alleges that the representations made were that •“ it was one of the best stock farms in Oneida county, * * * and that it then kept and would keep 100 head of cattle and sixteen horses, and that the land was worth more than sixty-five dollars per acre.” The defendants, in their answer, denied the allegations of fraud, and set up a counterclaim for damages by reason of fraudulent representations made by the plaintiff with respect to the quantity of land in her farm and in other respects.

The jury rendered a verdict for the plaintiff, and upon this appeal by the defendants, from the affirmance of the judgment, they insist that upon the evidence the plaintiff should have been non-suited, or a verdict ordered for them. In submitting the case to -the jury the trial judge, upon the issue of the defendants’ fraud, instructed them that the question of fact they were to determine was whether the defendant Joshua Mather made the representation, in substance, that “ the Rome farm did keep and maintain fro'm its products 100 head of cattle and sixteen horses.’’ In his instructions the trial judge told the jury that in order to find against the defendants, their inquiry must be confined to this representation alone, and should not extend to any others; that the representation in question must have been intentionally made, and must have beeti such as to convey the idea, no.t that the farm would keep from its products, but that it did actually keep through the year that number of cattle and horses. Having, in substance, so instructed them, he charged them further, in the light of certain judicial opinions from reported ,cases, extracts from which wc read, that they should consider whether the plain-tiff had such full opportunity to examine and find out about the-farm as that she could “ not be heard to allege that she was drawn, into this trade by the misrepresentations of the other side.” .

He left it to them, expressly, to say, “ whether or not, even if this representation was false and was made with intent to deceive,, this representation was relied upon and was the representation and thing which induced and brought about this purchase. If you find that it was not, the plaintiff’s cause of action fails.” This reference to the charge sufficiently indicates the confines of the issue left for the verdict of the jury. Taken with other portions, it was perfectly fair and as favorable to the defendants as they could have reasonably expected. We are then led to consider,, in connection with it, whether the evidence in the case was such as to warrant the trial judge in submitting such an issue to the jury, at all. Did the evidence and the circumstances of the case make out a cause of action ? The negotiations were conducted between the defendants and the plaintiff’s husband, acting as her agent, and arose out of an interview in their banking house in Utica; at which Joshua Mather spoke to him about the farm in Rome and proposed that he should go there with a young lawyer who had the sale of it in his charge. At this interview plaintiff’s husband testified that Joshua Mather said, “ that he had a splendid stock farm there and gave a description of it and the cattle, he was keeping and the blooded horses and the blooded cattle, * * * he said he had sixteen head of horses there and brood mares * * * and that it was one of the finest stock farms in Oneida county. * * * He told me the number of cattle that, ne had * * * one hundred head of cattle that he kept on the farm.” Plaintiff’s husband visited it, and, upon his return,, says he saw Joshua Mather, who asked him if he had been shown, “the blooded stock and the colts,” and the crops; that he stated the crops were more than 3,000 bushels of oats and five or six hundred bushels of rye, and wanted to sell the farm to him as-“one of the best and most productive farms in Oneida county.”

Plaintiff’s husband visited the farm twice. Upon the first-occasion he says he was shown the buildings upon it, but did not go over the farm, being hurried away by Mather’s lawyer;. and on the second occasion the weather was so inclement, from rain and snow, as, in connection with his condition of health, to prevent real or much examination of the farm. When they came to conclude the transaction, the plaintiff’s husband says it was at Mather’s office and in consequence of a letter from the lawyer to come there; that he saw Joshua Mather, to whom, after Mather had stated his proposed terms of exchange, he said, “ my wife, Mrs. Schumaker, has instructed me to say to you that if there is a trade effected that she trades wholly upon your representations ; that she wouldn’t take my judgment or no other man’sat this time of the year upon a farm; upon those conditions we trade, if we trade; ” that his wife asked if they were “responsible-parties;” that he had said he considered they were, and that then. Mather in reply said, “ we are good for what we say or agree-to do.”

The evidence was sharply conflicting as to what was said by the different parties at various times ; as to dates and details; as to where and how interviews occurred and when and where the negotiations were concluded. There was evidence for the plaintiff that she relied upon and made the purchase of the Borne farm because of what Joshua had represented as to it, and there was evidence for the defendants as to full opportunities offered to her to make every examination and investigation and as to how . thoroughly her husband, who was her agent, and was of capacity and experience, availed himself of them to inform himself, with every facility offered for that purpose. There was evidence as to The value of the farm from both standpoints; as to many circumstances bearing upon the questions at issue and as affecting the credibility of the witnesses.

Upon all these points the verdict of the jury is conclusive and it must be deemed as settling the question that Joshua Mather did make the representation in question and that the plaintiff purchased the defendanr's farm in reliance upon it and not otherwise. The verdict was upon evidence and we are not further concerned with it if, as to the representations testified to as being made by Mather, they were actionable.

I think we must hold that, of the different representations testified to as having been made by Mather, the only one which was material and which was so much a representation of a fact, in relation to the quality or value of the property to be paid for by the plaintiff upon the sale, as to be actionable, if false, was that relating to the keeping of 100 head of cattle and sixteen horses on the Borne farm. In so confining the inquiry by the jury, with respect to any actionable representations, I think the trial judge was right. The argument for the appellants is, in substance, that the representation was a matter of the belief, or opinion, of Mather and was not what was being, or had been, in fact, done; that it was susceptible of “an interpretation equally consistent with innocence as with guilt,” and should be regarded as a representation “ as to future events.” Unquestionably, it has long been the settled rule of Jaw in such actions, that they will not lie for a false or an erroneous assertion concerning a mere matter of judgment, or opinion. That was held as long ago as the case of Pasley v. Freeman, 3 T. R., 51. But I think the assertion in the present case was capable of being understood in the sense of a representation that Mather was able to keep, and was actually maintaining, upon the farm the number of horses and heads of cattle mentioned, That being so, it was for the jury to say, under the facts and circumstances disclosed by the evidence, whether Mather intended the representation in that sense and to convey that idea about the capacity of the farm to the plaintiff, to induce her acceptance of the terms proposed upon the sale of his farm. Words are uttered to convey thought, and though, possibly enough, we should have to say that, when standing alone, their utterance, if equally susceptible of an innocent and of a guilty meaning, or intention, should be given the more favorable interpretation to the speaker, yet, when spoken under circumstances which disclose a motive for their utterance, and in the presence of facts which, in the judgment of mankind, lend them a certain color and substance, then the correct rule which should govern in the jury trial requires that the judgment upon their meaning and the intention of the speaker must be pronounced by the jury and not by the judge.

By their verdict the jury have judged Mather; that he made the representation testified to and that he made it with the guilty intention of misleading the plaintiff into .consummating a transaction of sale in which he was gaining an unfair advantage and to which she was induced by her reliance upon the truth of the representation.

The present case differs from those cases where the statements of the seller of land relate to its value, merely as such; or as to its adaptation to particular modes of cultivation; or as to its capacity to produce crops. Such statements express or represent but the opinion of the seller, and cannot be said to be as to matters lying peculiarly within his knowledge. However they may fail of verification, in the result of working, they do not furnish evidence of fraudulent intent. Pasley v. Freeman, supra; Gordon v. Parmelee, 2 Allen, 212; Gordon v. Butler, 105 U. S., 553.

In Vernon v. Keys, 12 East., 632, Lord Ellenborough said that “ a seller is unquestionably liable to an action for deceit if he fraudulently misrepresents the quality of the thing sold to be other than it is, in some particulars which the buyer has not equal means with himself of knowing.”

In Simar v. Canaday, 53 N. Y., 306, Folger, Ch. J., in speaking of the ground for an action for representations made with respect to land, held quite in accord with such a rule, that “when known to the utterer to be untrue, if made with the intention of misleading the vendee, if he does rely upon them and is misled to his injury, they avoid the 'contract, and where they are fraudulently made of particulars, in relation to the estate, which the vendee has not equal means of knowing, and where he is induced to forbear inquiries which he would otherwise have made, and damage ensues, the party guilty of the fraud will be liable for the damages sustained." In the later case of Long v. Warren, 68 N. Y., 426, to which the appellants refer, the same judge wrote. The fraud alleged there was in the representation made as to the presence of a noxious weed, or grass, in a farm to be sold. Because the grass was distinguishable enough and was an object obvious to the plaintiff’s intelligence when he went over the farm and examined it with the view of ascertaining its presence, it was held that no cause of action was made out. The decision was upon the ground that the plaintiff’s means of acquiring the information were equal to the defendant’s, by “ only the exercise of "the faculty of sight while passing over the farm.”

The opinion in Long v. Warren has been somewhat criticised, as going very far in the direction of upholding transactions in the consummation of which deceitful representations have entered and have been an inducing cause. The opinion was only concurred in by the mQ"ir>rity of the members of the court. In a later case it was suggested that its authority should be confined to cases falling “ clearly within the principle there laid down.” Albany, etc., Institution v. Burdick, 87 N. Y., 49. In effect, I think the principle of the opinion in Long v. Warren is open to criticism, as being a contradiction of a salutary rule, asserted by the same learned judge in Simar v. Canaday, and stated in many other cases, that the representations of a vendor as to extrinsic facts, affecting the quality or value of the subject of the transaction of sale and which are peculiarly within his knowledge, may be relied upon by the purchaser. I think the general rule is that if. the facts represented are not matters peculiarly within the party’s knowledge, and the other party has the means available to him of knowing, by tfie exercise oí ordinary intelligence, the truth, or the real quality of the subject of the representation, he must make use of those means, or he will not be heard to complain that he was induced to enter into the transaction by misrepresentations. Baily v. Merrell, Bulstrode’s Rep., part III, p. 94; Slaughter's adm’r v. Gerson, 13 Wall., 383; Chrysler v. Canaday, 90 N. Y., 272.

I think the particular representation made by Mather, to induce the purchase of his farm, was as to a material fact affecting the quality of the farm and its actual value for a certain purpose, and which lay peculiarly within his knowledge. It is difficult to see how the exercise of common prudence and the use of ordinary intelligence, or of the faculty of sight, would have enabled plaintiff to detect the falsity of Mather’s statement, and, therefore, why she was not entitled to rely absolutely upon it. But, if we could say that more was required of the plaintiff than a mere reliance upon the statements of the defendants, then we have in the record the evidence of means availed of for an examination of the property to be sold and of the circumstances under which it was made. That was submitted to the jury, with the other evidence as to the conduct of the parties, and that tribunal has passed upon it, rendering their verdict in favor of the plaintiff.

I think there was no error in denying the motion for a non-suit, or in refusing to direct a verdict for the defendants. The other questions presented by the appellants have been satisfactorily disposed of by the general term and demand no further consideration by us.

The judgment and order appealed from should be affirmed, with costs.

All concur.


author: Bradley, J.

text:
    The Seneca Nation of Indians, Appl’t, v. Wellington Hugaboom, Resp’t.

      (Court of Appeals, Second Division,

      Filed April 26, 1892.)

    Boundaries—Description.
    Defendant’s land was Bounded on the north By the Cattaraugus Indian Reservation. In an action of ejectment plaintiff put in evidence the treaties oí 1797 and 1802. By the latter the line in question was “thence west 482 chains, 81 links to a post.” In 1878, pursuant to an act of congress, the line was surveyed, the surveyor treating said lineas straight, which would have the effect to enlarge the reservation, hy changing the location of the line as run in 1798 hy the Holland Land Company. Held, that as the line was surveyed in 1798 and plainly marked, the evidence thereof still remaining and such line referred to in the treaty of 1802, the subsequent survey could not change it and enlarge the reservation.
    Appeal from judgment entered on order of the general term of the supreme court in the fifth judicial department, affirming judgment entered on a verdict in favor of the defendant.

      'Hudson Ansley, for app’lt; W. Thrasher, for resp’t.

       Affirming 30 St. Rep., 586.

   Bradley, J.

The action is ejectment, and was brought in the name of the plaintiff pursuant to statute. Laws 1845, ch. 150; 4 Edm., 375.

It is alleged that the land in question is a part of the Cattaraugus Indian Reservation, by which the defendant’s land is bounded on the north. The contest has relation to the location of the south line of the reservation. The plaintiff put in evidence a treaty made with the Seneca Nation in 1797 and known as the Robert Morris treaty, also one of June 30, 1802. And it is insisted that by the latter, which describes the lines of the reservation it is established that the defendant has in his possession a strip something over two chains in width of the plaintiff’s land. The defendant’s contention is to the contrary, and the determination, of the question was at the trial made dependent upon the fact whether the south line in question was straight or was governed by a line not entirely so, which had been run prior to the treaty of 1802. By the treaty of 1797 with Robert Morris, and the deed then made pursuant to it by the sachems, chiefs and warriors of the Seneca Nátion, the Indian title to a large portion of the land commonly known as the Holland Land Company purchase was extinguished, and certain lands were reserved and excepted from the grant. The Holland Land Company, having purchased the land and taken the right of pre-emption from Robert Morris, caused in 1798 a survey of the reservation in question to be made, and the lines of its boundaries to be made and described; in 1802 made a treaty with that nation of Indians, and pursuant to it a deed was then made by and between the parties to such treaty whereby the Seneca Nation exchanged with the Holland Land Company certain lands reserved by the treaty of 1797, and that company by its representatives, in consideration thereof (reserving the right of pre-emption), exchanged, ceded and released to the nation the land embracing the reservation in question, which was bounded and described as follows : “Beginning at a post marked No. O, standing on the bank of Lake Erie at the mouth of Cattaraugus' Creek, and on the north bank thereof; thence along the shore of said lake N. 11 degrees E., 21 óhains, N. 13 degrees E., 45 chains; N. 19 degrees E., 14 chains, 65 links to a post; thence east, 119 chains to a post; thence south, 14 chains, 27 links to a post; thence east, 640 chains to a post standing in the meridian between the 8th and 9th ranges ; thence along said meridian south, 617 chains, 75 links to a post standing on the south bank of Cattaraugus Creek; thence west, 160 chains to a post; thence north 290 chains, 25 links to a post; thence west, 482 chains, 31 links to a post; thence north, 219 chains, 50 links to a post standing on the north bank of Cattaraugus Creek; thence down the same, and along the several meanders thereof, to the place of beginning; to hold to the said-parties of the first part" (the Seneca Nation of Indians) “ in the same manner and by the same tenor as the lands reserved by the said parties of the first part in and by said treaty or convention entered into on Genesee river the 15th day of September, 1797.”

The south line in question of the reservation is that above described as “ thence west, four hundred and eighty-two chains, thirty-one links to a post.” Each of those treaties was conducted on the part of the Seneca Nation by a commissioner duly appointed for the purpose. There is no dispute about the location of the corner at the east end of that line, nor substantially any about that at its west end.

The survey represented the boundary lines quite definitely by reference to distances with pointers and by witnesses to corners, and by it the line in question there mentioned as “ thence west on said sixth parallel six miles, two chains and thirty-one links,” was in that manner described with particularity.

The defendant relies upon the line as located by the Holland Land Company. And the plaintiff depends upon the line as surveyed in 1878, pursuant to the act of congress of May 25, 1878, chap. 139, entitled “ An act to authorize the survey of the Cattaraugus Indian reservation of the state of New York,” which authorized the secretary of the interior to cause the reservation “ to be re-surveyed in accordance with the original survey thereof, and the exterior boundaries thereof to be marked by stone or iron monuments ” at the expense of the Seneca Nation of Indians, who were authorized to select a surveyor to be approved by the secretary of the interior, who was authorized to pay the surveyor out of moneys under his control belonging to the nation of Indians. And it was further provided that the surveyor should make plats of the reservation showing the lines of its exterior boundaries, etc., to be submitted to the commissioner of the general land office for examination and approval. There was also a general statute on the subject, which provided that “whenever it becomes necessary to survey any Indian or other reservation or any lands, the same shall be surveyed under the direction and control of the general land office, and as nearly as may be in conformity to the rules and regulations under which other public lands are surveyed.” U. S. R. S., § 2115. The surveyor was selected, he made a survey which was duly approved, and by it he treated the south line as straight and so ran it This line, so run and located, included in that north of it a strip upwards of eight rods in width of the land occupied by the defendant as part of his farm.

The line as described in the treaty would, if nothing appeared to the contrary, be presumed to be a straight one between its two terminal points. Kingsland v. Chittenden, 6 Lans., 15. And such is the statutory direction for making surveys of public lands when the boundary lines have not before been actually run and marked. U. S. R. S., § 2396. This rule would necessarily be applicable to the line in question if it had not been actually located by the previous survey. And if it had, the survey made upon the statutory direction or authority before mentioned could not have the effect to enlarge the reservation by change in the location of the line.

The proposition is too well settled to require any reference to authorities on the subject, that courses and distances mentioned in conveyances must yield to the lines as actually and duly made by survey and .described by marks and monuments of land conveyed. It is, however, said that there was not nor could have been any line adopted by practical location founded upon acquiescence, because the Indians, being wards of the government, could not in that manner be charged with accepting it as such. That is true, and the line was not at the trial treated as in that manner established. But in Seneca Nation v. Christie, 126 N. Y., 122; 37 St. Rep., 64, the court expressed the opinion that as the right of the plaintiff to sue was given by and dependent upon the statute, Laws 1845, chap. 150, which provided that actions might so “be brought and maintained * * * in the same manner and within the same time as if brought by citizens of the state,” the statute of limitations was a bar to an action thus brought. And this was put upon the gi’ound that in adopting the remedy given by the statute it is taken subject to the conditions there mentioned. It was fairly inferable that the line was run in 1798 in view of a treaty to be afterwards made, and which was had in 1802. The line was plainly marked. And while the treaty did not in terms refer to the survey, it did refer to and mention lines which had been the result of a survey, and especially so in respect to the eastern terminus of the north line as at a post standing on the meridian between the 8th and 9th ranges, and thence south along such meridian. It thus appeared by the treaty that a meridian line had before then been located and designated as the east line of the tract, and that artificial monuments had been placed at the corners.

This evidently was done by the survey of 1798. And this was sufficient reference in the treaty to the survey to justify the inference that it, as made, described the lines of boundaries of the reservation. Inasmuch as it so appeared, the lines as actually made by the survey properly might control in that respect. There was evidence tending to prove the location of this south line as then surveyed, run and marked. And as thus made it was represented by the old field notes, giving not only the details as to distances, with pointers and witnesses, but also topography. Furthermore, it appears that this line, so marked, has been treated and designated as the southern boundary of this portion of the reservation from the earliest time within the memory of witnesses. Then it was plainly defined by the marks and monuments of the surveyor, and as early as 1829 a fence was erected on it as the north line of land adjoining the reservation on the south, and the fence has since remained there, and from that time the premises in question south of the fence have been occupied by the plaintiff and those under whom he claims title. The line was recently before the trial traced by a surveyor and the marks of the line of 1798 sufficiently found to enable him to do so. The evidence was sufficient to permit the conclusion that this line was the southern boundary of the reservation mentioned in the treaty of 1802; and therefore the exceptions founded upon the proposition that it was otherwise, as matter of law, were not well taken.

The question whether the plaintiff was entitled to the possession of any land occupied by the defendant south of that line was treated by the court as one of fact and was submitted to the jury. They found for the defendant. There was no. error. The judgment should be affirmed.

Judgment affirmed, with costs.

All concur.


author: Follett, Ch. J.

text:
    Elizabeth Greenleaf, Executrix, et al., Resp’ts, v. The Brooklyn, Flatbush & Coney Island Railway Co. et al. App’lts.

      (Court of Appeals, Second Division,

      Filed April 26, 1892.)

    Ejectment — Evidence — Judgment in partition and mesne conveyances.
    Plaintiffs’ predecessor in title purchased a salt meadow lot on Coney Island, in pursuance of a survey in a chancery proceeding for partition, it being described by courses and distances. In this action in ejectment, plaintiffs’ evidence was solely documentary, consisting of the judgment roll in partition and the subsequent deeds. Held, that while these were admissible in evidence, without proof of contemporaneous possession of the land by the parties to the judgment and deed, yet they are not sufficient evidence of title of one who claims under them through mesne conveyances to recover in ejectment, without showing some subsequent or modern possession by the parties who have received later deeds which go to make up the plaintiffs’ chain of title.
    Appeal from a judgment of the general term of the supreme court, in the second judicial department, which affirmed a judgment entered on decision of a circuit court.
    This action, ejectment, was begun July 11, 1882, to recover in fee the land hereinafter described. The defendants, by their answers, deny that the plaintiffs have title, but they do not allege that they or either of them have title to the land in dispute.

      Mornay Williams and Frederic A. Ward for resp’ts; William C. Be Witt, for appl’ts.

       Reversing 28 St. Rep., 745.

   Follett, Ch. J.

So far as the case before us shows, the earliest reference to the land in dispute is contained in the judgment roll in partition.

In March, 1847, Ann Stilwell, her husband joining, filed a bill in the late court of chancery against John and Jacobus Emmons, alleging that they were seized in fee as tenants in common of the land now in dispute, and of other lands.

Jacobus Emmons answered by his guardian ad litem and submitted his rights to the court.

John Emmons also answered and admitted the allegations of the bill. The mother of John and Jacobus Emmons had remarried, and she and her husband were also parties defendant, who answered that the mother was entitled to dower in part of the premises. A reference was ordered to report upon the rights and interests of the parties to the action in the subject matter thereof. December 23, 1847, an interlocutory judgment was entered in the action in partition, appointing commissioners to make actual partition of the lands. March 1,1848, the commissioners made and filed their report partitioning the lands between the parties to the action. That which is in dispute in this action was set off to John Emmons, and is- thus described: “All that certain piece or parcel of meadow land situated, lying and being in the said town of Gravesend, and known and designated on the said map as and by the number XXIII (twenty-three) on the said map, bounded and described as follows, to wit: Beginning at a certain stake standing on Duck Hill placed at the division line between meadows of the heirs of Abraham Emmons and the said parcel number XXIII (twenty-three); running thence south five degrees east, twenty-four chains, along said meadow land of the heirs of Abraham Emmons to the Atlantic Ocean; running thence north seventy-nine degrees and thirty minutes east, one chain and seventeen links along the said Atlantic Ocean to parcel number XXIY (twenty-four), allowed and set apart by us to Jacobus Emmons, as hereinafter mentioned; running thence north five degrees and forty five minutes west, along the division line between parcel XXIII (twenty-three) and XXIY (twenty-four) twenty-four chains to Duck Hill and to a certain stake there standing and put and placed by us; running thence south seventy-nine degrees and thirty minutes west, one chain to the point or place of beginning, containing two acres, two roods and fourteen perches.” The commissioners filed in the clerk’s office a map of the lands partitioned, showing the part assigned to each, and known as No. 173. March 10, 1848, a final judgment was entered confirming the report of the commissioners, and in addition the parties conveyed to each other the lands set apart to each; Ann Stillwell and her husband and Jacobus Emmons by his guardian assumed to convey parcel No. 23 to John Emmons, by a deed dated April 6, 1848, and duly recorded in Kings county, April 8, 1848.

John Emmons assumed to convey lot No. 23 to Charles H. Greenleaf by a deed dated September 30,1848, and duly recorded February 8, 1850. Charles H. Greenleaf assumed to convey an undivided half of this lot to James S. Butler by a deed dated July 27, 1877, and recorded September 17, 1877. Afterwards Charles H. Greenleaf died, having devised his real estate to Elizabeth Greenleaf, one of the present plaintiffs. Upon the trial before the court without a jury, the plaintiffs recovered the possession of the premises, as tenants in common in fee simple, with $100 damages for the wrongful withholding, which was affirmed at general term.

The important question involved in this appeal is whether the plaintiffs gave sufficient evidence of title to sustain a recovery in ■ejectment. Their evidence is solely documentary, and consists of the judgment-roll in partition and the subsequent deeds already referred to. The defendants insist that the judgment was not ■competent evidence. It is unnecessary to consider the authorities discussing the conclusiveness of judgments, for they are so ■only as between the parties and their privies, unless they are the result of proceedings in rem, and moreover the plaintiffs do not assert that the judgment is an estoppel in their favor and against the defendants, but their contention is that it is evidence of title .and possession in the parties to it, liable like other evidence to be .Tebutted, but until overthrown sufficient to sustain a recovery in ■ejectment against defendants producing no evidence of title. A judgment in personam, like a deed or other muniment of title, in case it is a link in the chain of the title of one of the litigants, is .admissible in evidence as against the other, though a stranger to it. Barr v. Gratz, 4 Wheat., 213; Webb v.Den, 17 How., U. S., 576; Lessee of Buckingham v. Hanna, 2 Ohio St., 551; Davies v. Lowndes 1 Bing. N. C., 597-606; Freem. Judgt., § 416; 2 Black. Judgt., § 607; 1 Whar. Ev., §§ 200, 733, 820, et seq.; 1 Green. Ev., § 539; 2 Taylor Ev., 8th ed., § 1668.

The authenticity of the judgment was established by the record, and it was clearly admissible as an evidence of title, unless the •dclendants’ position can be sustained that neither it nor the subsequent deed from Emmons to Greenleaf were admissible because it was not shown that the parties to the judgment or to the deed had possession of the lands to which these documents relate.

It is usually impossible to establish a very ancient possession of property by the testimony of persons having knowledge of the fact, and when a deed forming part of a chain of title is so ancien' that there can be, in the nature of things, no living persons who can testify to acts of ownership by the grantor or grantee, it may be received in evidence without such proof. Jackson v. Laroway, 3 Johns. Cas., 283; Jackson v. Luquere, 5 Cow., 221; Hewlett v. Cock, 7 Wend., 371; Ensign v. McKinney, 30 Hun, 249; Rogers v. Allen, 1 Camp., 309; Doe v. Pulman, 3 Q. B., 622; Malcomson v. O'Dea, 10 H. L. Cas., 593; Bristow v. Cormican, L. R., 3 App. Cas., 641-668; Gardner v. Granniss, 57 Geo., 539; Whitman v. Heneberry, 73 Ill., 109; 1 Green Ev., §§ 21, 144; 1 Whart. Ev., §§ 199, 733; 2 Phill. Ev. (Edw. Ed.), 477; Best’s Ev., §499; 1 Taylor’s Ev. (8th Ed.) §§ 87, 665.

While under this rule the judgment in partition, and the subsequent deed to John Emmons, were admissible in evidence, without proof of contemporaneous possession of the land by the parties to the judgment and deed, yet they are not sufficient evidence of title of one who claims under them through mesne conveyances to recover in ejectment, without showing some subsequent or inodora possession by the. parties who have received later deeds which go to make up the plaintiff’s chain of title.

In the case at bar there is no evidence that the land in dispute was part of a larger tract possessed by some of the grantees in the-plaintiff’s chain of title. There is no evidence that John Emmons, was ever in possession, or exercised an act of ownership over the land, except when he assumed to convey it to Charles H. Green* leaf. Mor is there any evidence that Greenleaf took possession, under his deed, or exercised any act of ownership, except when he assumed to convey an undivided half to Butler.

These lands on the beach' are incapable of being enclosed with fences and occupied like ordinary agricultural lands, but there is no evidence that they have been occupied for any purpose. It does not appear that grass or sand has been taken from them, or that they have been used as a means to approach the ocean for fishing or for any purpose.

We think that the evidence failed to establish title in the plaintiffs, and that the judgment must be reversed and a new trial granted, with costs to abide the event.

All concur, except Brown, J., not sitting.


author: Russell, J.

text:
    Henrietta Chase, P’lff, v. Mervey Chase, Def’t.

      (Supreme Court. Special Term, St. Lawrence County,

      Filed April 5, 1892.)

    Divorce-Jury.
    In an action for absolute divorce, defendant made default and an order of reference to take proof and report was obtained by plaintiff. Before the hearing defendant moved to open the default and vacate the order of ref. erence. Plaintiff opposed the motion, and an order was made opening the default on payment of costs, but allowing the order of reference to. stand as if made after issue joined. A trial was then had before the referee, who found in favor of the defendant. Upon a motion to confirm the-referee’s report, Held, that while a person charged with adultery has a right to demand a jury trial, or a trial in open court, that provision like all others may bcwaived.
    2.. Same.
    A party to a divorce action may not lie by, taking the chances of & favorable decision before a forum in which he acquiesces; and then, when an adverse result comes seek to defeat that result, unless the proceedings, are absolutely void.
    3. Same—Proof of adultery.
    The evidence of circumstances may be wholly and entirely sufficient to prove adultery.
    Motion to' confirm report of referee in favor of defendant, for divorce on the ground of adultery.

      Henry H. Seaver, for motion ; Horace D. Ellsworth, opposed.
   Russell, J.

The defendant succeeded, in an action of divorce,, on the ground of adultery, in establishing affirmatively his counter-charges, and in defeating the allegations of the complaint. He-now moves to confirm the report of the referee. The motion is. resisted on the ground that the order of reference was irregular or void, and that the evidence does not sustain the report.

The defendant was originally in default in answering, but was allowed by Justice Tappan to answer on terms. The motion to open the default, and set aside the order of reference which had been granted as upon a default, was resisted by the plaintiff, and ■only part of the relief asked for obtained. He was compelled to .accept the order of reference theretofore made to take proof and report, to pay costs of the motion and thus allowed to answer. It is now objected that such an order of reference is not proper in an action of divorce where issue is joined.

I am not certain that this position is correct, but, even if it is, the objection does not avail the plaintiff. The distinction between actions of divorce and other cases, in regard to references, is founded upon the desire of the law to prevent collusion between the parties and thus make divorces easy. Concede that the person charged with adultery has a right to demand a jury trial, or has a right to demand a trial in open court, these provisions, like all others, may be waived. The reason of the distinction between divorce cases and others does not apply where it is evident that a -genuine contest proceeds, and that each side is desirous of repelling the charges which form the gravamen of the relief asked, for by the other. .

In the case at bar the plaintiff obtained the right to proceed before the referee and was apparently satisfied with that order of reference. The order was not appealed from and stands unreversed and unmodified. Its force cannot now be attacked in a collateral way after the proceedings which have been taken upon it. The plaintiff proceeded to the trial of the cause and, although her counsel did not offer any evidence to sustain the charges which she made against the defendant, he cross-examined the witnesses produced against herself and -gave rebutting evidence in answer to the incriminating testimony. It will not do for a party .to lie by, taking the chances of a favorable decision before a forum in which he acquiesces, and then, when an adverse result ■comes, seek to defeat that result, unless the proceedings are ■entirely void.»

Such is not the case here. The reference is one by consent in ■open court and has been acted upon by both parties.

The objection that there was no direct evidence of adultery by tire plaintiff is not sufficient to answer the findings of the referee. If it were necessary to have ocular evidence of the act, few -divorces for this cause could be obtained. The evidence of circumstances may be wholly and entirely sufficient A perusal of the testimony satisfies the mind, beyond a reasonable doubt, of the guilt of the plaintiff, and her own conduct as a witness corroborates the impression.

The decree must go for the defendant for an affirmative judgment.


author: Fitzsimons, J.

text:
    Martin Simons, App’lt, v. Arthur H. Hearn et al., Resp’ts.

      (City Court of New York, General Term,

      Filed February 8, 1892.)

    Interpleader — When proper.
    In an action by the assignee of a claim for goods sold it is proper to substitute as defendant in place of the debtor an officer wlio has attached the claim on behalf of creditors of the assignor where there is no collusion between the officer and the debtors. •

      Appeal from order of interpleader, substituting the sheriff as-defendant and discharging the defendants on.their depositing the fund in dispute in court.

      Herman Frank, for app’It; Vanderpoel, Cuming & Goodwin, for resp’ts."
   Fitzsimons, J.

The plaintiff's assignor sold and delivered goods of the value of $75.08 to defendants on October 5, 1891. On October 9 the assignment was made to plaintiff. On October 10 _ the sheriff attached said account on behalf of creditors of plaintiff's assignor, one Silberstein.

On November 13 this action was commenced; on November 24 an order was made substituting the sheriff as defendant herein and discharging present defendants from liability to plaintiff or to said sheriff, and directing that the fund in dispute be paid into-court.

From said order this appeal is taken.

The sheriff and the plaintiff herein claim the same thing, viz.,, the $75.08 sued for herein. The defendants, are willing to pay to t-he person entitled thereto said fund, but cannot without risk and hazard to themselves' determine which one of the claimants-is entitled to it.

There is no collusion between them and the sheriff. Under these circumstances the order appealed from was properly granted. Crane v. McDonald, 118 N. Y., 654; 30 St. Rep., 98.

Order appealed from affirmed, with costs.

Yan Wyck, J., concurs. .


text:
    Michael Noonan, Resp’t, v. The Mechanics & Traders Bank, App’lt.

      (City Court of New York, General Term,

      Filed February 8, 1892.)

    Assignment—Claim against city—Liability op assignee to iietumv BALANCE.
    Plaintiff, who was indebted to various parties, assigned his claim against, the city under a contract to defendant for the purpose of paying such indebtedness. Defendant assigned it to its attorney, who collected it and: retained a balance for his services. Held, that the balance after payment of the debts belonged to plaintiff and should have been returned to him,, and that defendant was liable therefor.
    Appeal from judgment in favor of plaintiff.

      Kellogg, Bose & Smith, for resp’t; Thomas J, McKee, for app’It..
   Fitzsimons, J.

The city of New York owes the plaintiff moneys for work done and materials furnished, for which he and! Thomas J. McKee, the defendant’s attorney herein, obtained judgment for the sum of $126,979.30, which was paid by the city to McKee on May 1, 1884.

Prior to that time the plaintiff was indebted to various persons: in large sums of money. For the purpose of paying these debts, he executed and delivered to each of his said creditors an assignment of his said claim against the city.- Each of said assignments was in a sum sufficient to pay the ¿laim of the creditor holding;' the same, except the assignment to Stevan, which assigned plaintiff’s claim in full; also so was the one to the defendants; and they in turn assigned to McKee their respective claims ; this was done for the purpose of giving McKee authority to collect said money from the city and pay it over to the various parties entitled to it. He paid over all the money he received from the city except the-sum of $1,000, which he kept as compensation for his services.

The action is to recover from the defendant said $1,000. . On the trial of this action judgment was rendered for plaintiff lori $1,443.36 by direction of the court.

The order which the plaintiff delivered to defendant simply entitled it to receive from the city all monies due from the city to plaintiff under his contract. The manner of its disposition by-defendant when so received of course might be shown by oral testimony. For some reason it assigned this privilege to its then and-present counsel, Mr. McKee, but that act certainly does not relieve-it of the responsibility of returning to the plaintiff all monies-collected from the city. This it should have done, except in instances where it was otherwise directed by him.

It is apparent ^rom the testimony that the assignments made by plaintiff to his creditors of his claim against the city were made-for their benefit dpd security and that after the payment of such debts the balance of such claim should be paid over to him. Of the amount received from the city with plantiff’s assent the sum of $125,979.30 was paid to plaintiff’s creditors, which included defendant, and the balance, $1,000, was retained by defendant’s assignee and counsel: This he had no right to do, but should

have paid it over to defendant, whose duty in turn it was to pay-such sum over to plaintiff.

We believe that no errors were committed upon the trial.

Judgment affirmed, with costs.

McGown and Van Wyck, JJ., concur.