text:
    ROBERT H. FISHER and others, Respondents, v. THE MAYOR, Etc., OF THE CITY OF NEW YORK, Appellant.

      Laws of 1813, chap. 86 — lien of assessments imposed under — effect of invalid sale on — presumption of payment.

    In 1837 an assessment was imposed upon-certain premises in the city of Hew York, in pursuance of chapter 86, Laws of 1813, and constituted a lien thereon, for the enforcement of which the premises were subsequently sold; but, the sale being invalid, the amount paid therefor by the purchaser was subsequently refunded to his assignee. . In 1862, the land was taken for widening a street, and the amount of the damages awarded therefor, less the -amount of the assessment, with interest from 1837, was paid into court, and, in the same year, demanded by and paid to the plaintiffs herein, the owners of the land. In 1869 this suit was commenced to recover the amount so retained. Held (1), that the lien of the assessment was not destroyed by the invalid sale; (2), that the lapse of time, between the taking of the land and the commencement of this suit, was strong evidence of acquiescence in the right of the defendant to discharge the lien by retaining the amount of the old assessment, and that such assent would be a complete defense to an action brought to recover the amount so retained.
    Where premises are taken for public streets, upon which, at the time, there exists a valid lien for a previous assessment, lawfully imposed, and which may be enforced as a mortgage, the amount thereof may be deducted from such damages.
    Where a party desires to take advantage of the presumption of payment of an assessment, arising from the lapse of more than twenty years from the time it was imposed (prior to 1887), payment, and not the statute of limitations, should be pleaded.

      Henderson v. Henderson (3 Denio, 314); Pattison v. Taylor (8 Barb., 350) followed.
    Appeal from a judgment, entered on a verdict directed by the court. The facts proven on the trial are set forth in the case as follows: In 1860, the defendants, being a municipal corporation, caused certain premises belonging to the plaintiffs, numbered forty-seven on the damage map in proceedings for the widening of Worth street, on the southerly side, between Hudson and Baxter streets, in the city of Hew York, to be taken for the purpose mentioned in the said proceedings, by virtue of the statute in such case made and provided. The commissioners of estimate awarded to “ unknown owners ” the sum of $13,800 for the taking of the said lands as aforesaid. The defendants, in or about April, 1862, paid into this court the sum of $11,059.43, part of the said award, to the credit of ■“ unknown owners,” which sum has been paid to the plaintiffs on their application.
    The defendants have neglected and refused to pay into this court the sum of $2,740.57, the residue of the said sum of $13,800, awarded as aforesaid, and the defendants retain the sum of $2,740.57, for the purpose of satisfying an assessment of $990, which was imposed on the said lands, in 1837, for widening Centre street in the said city, amounting, with interest, at the time the said sum of $11,059.43 was paid into court, to the sum of $2,740.57, ■ which assessment, at the time it was imposed, constituted a lien upon the said land. The land was sold in 1838 for the collection of the said assessment, in proceedings instituted by the defendants for that purpose, to M. Dougherty, for the term of 165 years, for $1,115.34, the amount of the said assessment and expenses. The said Dougherty assigned the certificate of the said sale, issued to him by the defendants, to Leonard Fisher, December 24th, 1840.
    Afterward, between 1850 and May 14th, 1852, the common council of said city, by resolution, ordered the money paid by said Dougherty, as aforesaid, to be refunded to him or his assignee, in consequence of irregularities in said sale, rendering the same invalid; and the certificate .of sale was returned by Leonard Fisher to the comptroller of the city of Hew York, on the 14th day of May, 1852, and the money paid by Dougherty, namely, $1,115.34, together with interest thereon from the time of payment, was, on that day, refunded to Leonard Fisher.. That said Leonard Fisher was then in possession of the said land, and owned a life estate therein under the will of his father. That the plaintiffs, at that time, were the owners of an estate in such land in remainder in fee under the said will, the plaintiffs, except the administrator of Olin C. Hutchins, being the children of said Leonard Fisher. The plaintiffs, at the time of the taking of the said lands by the defendants as aforesaid, were in possession thereof in fee, the said Leonard Fisher being then dead. Upon the record of said assessment, under the column headed, “ When and by whom redeemed,” the following entry is written: “Assessment paid January 3d, 1863, by the comptroller.” The plaintiffs proved that the demand of payment set forth in the complaint had been made upon the comptroller, and of the mayor, aldermen and commonalty in common council convened, on the 20th day of August, 1869, and it was admitted that the action was commenced on the 22,d day of December, 1869. Upon these facts the defendants’ counsel moved to dismiss the complaint, which motion was denied, and defendants excepted. Defendants’ counsel also moved that a verdict be directed for the defendants, which motion was denied, and exception duly taken. The court directed a verdict for the plaintiffs for the amount claimed, with interest, to which direction defendants’ counsel duly excepted.

      E. Delafield Smith and D. J. Deam, for the appellants.
    This action is barred by the statute of limitations. It is brought “ upon a liability created by statute.” In the absence of a statutory provision, no direct action to recover the .award would lie. (Lake v. Trustees of Williamsburgh, 4 Denio, 520; McCulloch v. The Mayor, 23 Wend., 458; Richardson v. The City of Brooklyn, 34 Barb., 570; Beard v. City of Brooklyn, 31 id., 142; Hunt v. Utica, 18 N. Y., 442; Buck v. Lockport, 6 Lans., 251.)

      Philip S. Crooke, for the respondent.

       Valentine’s Digest, p. 1193, § 178.

   Davis, P. J.:

The plaintiffs seek in this action to recover the unpaid balance of the damages awarded for their lands taken by the city for the purpose of widening Worth street. Their action is based upon the statutory rights given by section 183, of chapter 86, of the Laws of 1813, and it of course proceeds upon the assumption and concession that the proceedings in taking the lands and making the award were regular. Two defenses are interposed by the defendants : 1st. The statute of limitations. 2d. An assessment upon the same premises for the widening of Centre street, which it is alleged became a lien on the land on the 4th of January, 1837, and remained due and unpaid until the 24th day of April, 1862, at which time the sum of $2,740.57, was due thereon for principal and interest, from the plaintiffs to the defendants, and which sum was a lien on the-said property of the plaintiffs, and was retained from the said award in payment and satisfaction of the assessment. In reply to the second defense, the plaintiffs put in issue the alleged assessment for the widening of Centre street, and the lien thereof on the lands, and allege that the assessment was illegally imposed. They do not set up any statutory or other limitation to a right of action upon the assessment. Nor do they allege payment thereof in the nature of a plea of payment. All that is set up on that subject, is in connection with the alleged illegality of the assessment, and the reply avers the repayment of the sum paid on.the ground of such illegality. From the facts shown at the trial as above set forth, it must be assumed that the assessment imposed in 1837 for widening Centre street was regularly made, " and, at the time it was imposed, constituted a lien upon the land.” The nature and extent of this conceded lien is specially declared by section 223, of' the act above cited, which provides that the assessment shall be a lien or charge upon the houses and lots in respect to which such assessment shall have been made, and shall bear lawful interest until paid, and shall be entitled to a preference before all other incumbrances upon the same, and may be sued for and recovered, with costs, in like manner as if the said houses and lots were mortgaged to the mayor, aldermen and commonalty for the payment thereof.” This statute has received a very clear and explicit construction by the Court of Appeals, in The Mayor, etc., v. Colgate. That case disposes of several of the questions that arise in the present case. It settled that the intermediate invalid sale of the premises for the'assessment, and the subsequent cancellation of the sale and return of the money to the purchaser, had no effect upon the lien of the assessment, or to prevent subsequent proceedings to collect the same by enforcing the lien as in the nature of a mortgage. It also established that the statute of limitations, requiring actions to be commenced within six years after the cause of action accrued, did not apply to such assessments; and that the assessment was “ to be considered as, in effect, a mortgage, as well in regard to the time of commencing an action upon it, as in other respects,” and therefore was subject to no law of limitation, except the presumption of payment, which would not attach until after the expiration of twenty years. The limitation of twenty years for bringing actions, provided by the Code in 1848, does not apply to causes of action which had then already accrued; and the right of action for this assessment accrued in 1837. It seems quite clear, under the statute and authority above cited, that the assessment of 1837, for opening Centre street, became a lien on the premises of plaintiffs which were afterward, in 1860, taken by defendants for the widening of Worth street, and that such lien remained (undisposed of by the intermediate invalid sale) until the taking of said premises for the purpose last mentioned, subject only to a presumption of payment arising from the lapse of more than twenty years. When the award of damages for taking the premises was complete, in 1862, the defendants paid into court the full amount thereof, less the assessment of 1837 and interest, claiming to retain the same to apply on such assessments. The plaintiffs took the money paid into court; and afterward, in December, 1869, commenced this suit for the amount so retained. If the presumption of payment of the lien had attached to 'the assessment before 1862, it was not conclusive, but, as said by Bronson, C. J., in Henderson v. Henderson, “ a prima faoie presumption which may be repelled,” etc. If the plaintiffs relied upon this presumption of payment, they should have pleaded payment in their reply to the answer which set up the assessment and lien, and averred the right to apply the moneys thereon. It was held, in Henderson v. Henderson, and in Pattison v. Taylor, that the presumption of payment must be pleaded as payment,” and that a plea of the statute of limitations was bad on demurrer. Instead of so pleading, the plaintiffs put in issue the existence of the assessment and ■ lien, and set up payment of the assessment, in a particular manner and form, which they fail to establish. It seems to us, therefore, that the court below should have held that the assessment and lien continued unpaid, and in full force, at the time the amount thereof was retained by the defendants. This, it will be recollected, was in April, 1862. Seven years and more elapsed before suit was brought for the amount retained, and this lapse of time was certainly strong evidence of acquiescence in the right of the defendants to discharge the lien by retaining the amount of the old assessment. It would have gone far toward rebutting a plea of payment,, founded on the lapse of time, for it is quite certain that an assent to the application of a part of the proceeds of land to extinguish an outlawed lien, would be a complete answer to an action brought to recover the sum so applied; and such assent may well be inferred from the facts as they appeared in this case. Where premises are taken for public streets, upon which at the time there exists a valid lien for a previous assessment lawfully imposed, and which may be enforced as a mortgage against the property, we see no good reason why the amount of such lien should not be regarded as attaching to the damages awarded for the taking of the premises, nor why the same may not be lawfully deducted from such damages. We are, therefore, of opinion that it was error to direct a verdict for the plaintiffs upon the facts proved.

It is not necessary to consider whether the statute of limitations was well pleaded by the defendants, for on the question already considered it seems to us that the judgment should be reversed, and a new trial ordered, with costs to abide the event.

Daniels and Brady, JJ., concurred.

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

       Laws of 1813, chap. 86.

      2 Kern., 140.

       2 R. S., 296, § 18, sub. 1.

         Per Denio, J., p. 156.

       Mayor v. Colgate, ubi supra, p. 156; Heyer v. Pruyn, 7 Paige, 465; 2 R. S., 301, sec. 48.

       Sec. 70, of 1848.

       Code, sec. 73.

       3 Denio, 314.

       8 Denio, 314.

       8 Barb., 250.


source: Caselaw Access Project

author: Davis, P. J.:

license: Public Domain

text:
    WILLIAM ADAMS, Plaintiff in Error, v. THE PEOPLE OF THE STATE OF NEW YORK, Defendants in Error.

      Memorandum — copy of ■—when admissible.

    The plaintiff in error was tried and convicted of an assault with intent to kill. Upon the trial, a police surgeon testified that when the complainant was brought to the station-house, he made a statement to him as to the persons who had assaulted him; that the statement was written down upon a slate; that he thought names were mentioned in it, but could not remember what they were. A sergeant was then called, who testified that the slate was handed to him by the surgeon; that he copied it into the station-house blotter, and then rubbed out what was on the slate. Held, that the statement .contained in the blotter was properly received in evidence, as the original memorandum had been erased fcom the slate and destroyed.
    Writ of error to the Court of Oyer and Terminer of the city and county of Hew York, to review the conviction of the plaintiff in error of an assault with intent to kill.

      William F. Howe, for the plaintiff in error.
    The evidence of the witness, as to the entry made upon the blotter, was improperly admitted. (Huff v. Bennett, 6 N. Y., 337; Young v. Cattell, 6 Duer, 441; Butler v. Benson, 1 Barb., 527; Halsey v. Sinsebaugh, 15 N. Y., 485; Russell v. Hudson R. R. Co., 17 id., 134; Grey v. Mead, 22 id., 462; Lewis v. Ingersoll, 1 Keyes, 347, 357, 358; McCormich v. Pennsylvania R. R. Co., 49 N. Y.; Meacham v. Pell, 5 Barb., 65, 67; Brown v. Jones, 46 id., 400,410, 411; Wood v. De Figaniere, 25 How., 522; Gelston v. Hoyt, 1 Johns. Ch., 534; Thursman v. Mosher, 3 N. Y. S. C. [Thompson & Cook], 583.) The evidence of the witness, as to the eyesight of the complainant, was improperly admitted. (Morehouse v. Matthews, 2 N. Y. [2 Comstock], 514; Maynard v. Beardsley, 7 Wend., 560; Lamoure v. Caryl, 4 Denio, 370; Dewitt v. Barley, 9 N. Y. [5 Seld.], 371; Boseoe’s Criminal Evidence, 134; Woodin v. People, 1 Park. Cr., 464.)

      Benjamin K. Phelps, for the defendants in error.
   Davis, P. J.:

The plaintiff in error was indicted for, and tried and convicted of an assault with a deadly weapon with intent to kill.

Two exceptions only were taken upon the trial. The complainant positively identified the plaintiff in error as one of the persons who committed the assault. His counsel attempted to impair or destroy the force of the identification by showing that, on the night of the assault, the complainant made a statement implicating other persons. He called the police surgeon who examined the complainant’s injuries, and showed by him that the complainant made a statement, and that he wrote on a slate whatever the complainant said; and that he could not be positive as to the names, whether they were Robinson, Brown or anybody else, but thought names were given. In reply to this, the prosecution called the sergeant of police who was at the station on the night the complainant was brought there, who testified that he copied from the slate into the blotter of the station-house, the statement written upon it by the doctor, and then rubbed out what was on the slate. That theQ doctor gave the slate to him, but he did not see the doctor write it. The district attorney offered to show what the statement was that was copied by the witness from the slate. This was objected to, but no ground of objection was stated. The court ruled that, the memorandum having been erased from the slate and destroyed, it was proper to show what took place by showing what the memorandum was; and that the proof offered was the best evidence the nature of the case admitted of. The counsel for the plaintiff in error excepted. The witness then testified that the entry in the blotter was what he copied from the slate. That the statement was, that the complainant had a “ suspicion that Crumb, Crow and Roberts had been trying to drive him out of the Manhattan market, and he believes Crumb, who lives opposite to where he is stopping, had induced it to be done. They had thrown things at him in the market.”

There was no error in admitting this testimony. The doctor swore that he wrote on the slate precisely what the complainant stated; that he thought names were mentioned, but he could not recall them, nor repeat the statement as' written. The statement had been rubbed off the slate. Of course, the production of the slate would not have helped the doctor to testify any more clearly, but, if some one else, before the entry was erased, had read and copied, and could swear what the statement written by the doctor really was, there would be no objection to proving it by that person. The blotter was not introduced as proof of what was on the slate. It was only identified by the witness as containing what he copied ; but the statement written on the slate, and which the doctor swore he correctly made, was proved by the testimony of the sergeant, and not by the blotter. The authorities cited by the counsel for the plaintiff, do not seem to us to be in conflict with the rulings .of the court. :

The other exception was to the refusal of the court to strike out the testimony of one Berrian, on the subject of complainant’s eyesight. Berrian testified that he had known the complainant fourteen years, and been on intimate relations with him, and worked in the same store with him. That he considered his eyesight very good. That he could distinguish a person across the room; that he c wore glasses to read fine print. The counsel for plaintiff in error moved to strike the testimony out as incompetent, to which the court said: “ I cannot do that, because it is in answer to your glass theory.” The counsel excepted. The prisoner had given evidence tending to show that complainant was near sighted, and sometimes wore glasses. It was certainly not incompetent to show for what he wore glasses, nor that he could distinguish persons across the room; and if the expression of the witness that he considered the eyesight of the complainant very good, was objectionable as being an opinion that ground was not taken, nor did the motion point to that part of the testimony as being incompetent. If the court had been asked to strike out that portion on the ground now urged, the motion would probably have been granted; but as counsel asked for too much, error cannot be alleged for not granting the motion. .

We think the judgment should be affirmed. "

Present — Davis, P. J., Daniels and Brady, JJ.

Judgment affirmed.


author: Davis, P. J. :

text:
    THERON MERRITT, Receiver of ROSWELL H. SAWYER, Respondent, v. WILLIAM SCOTT and JAMES A. HOYT, Appellants.

      Statute of limitations—Running of, not stopped as to one joint debtor by commencement of action against the other— Oode,% 99—Assignment for benefit of creditors — what interest acquired by receiver of assignor.

    On the 31st of May, 1851, a judgment was recovered against the defendants herein, as surviving partners of a firm; in March, 1870, an action was commenced thereon against the defendant Scott alone; in June, 1871, an order was made, hy consent of Scott’s attorney, directing that the complaint be amended by inserting the name of Hoyt as a defendant; in June, 1872, Hoyt appeared and set up the statute of limitations. Held (1), that, as when the action was commenced, Hoyt was not named as a defendant therein, the running of the statute of limitations was not stopped as to him by the service of the summons and complaint on Scott; (2), that, as the order of June; 1871, was made without the consent of, or notice to, Hoyt, he was not thereby deprived of the defense which had already accrued under the statute.
    Where a debtor has made an assignment of all his property for the benefit of creditors, and the assignee has died leaving the trust unexecuted, a receiver— appointed in a suit in which the assignor is the sole defendant — of all the property and assets of such assignor which have not been collected and distributed under the assignment, acquires no interest in the property assigned, except a possible reversion in any surplus which may remain after the payment of all the debts provided for therein.
    Appeal from a judgment in favor of the plaintiff, entered upon the report of a referee.

      E. B. Crowell, for the appellants.
    As the rights and interests of George W. Betts are immediately connected with and must necessarily be affected by the decision, the court cannot determine ' the controversy in this case without the presence of said George W. Betts or his personal representatives. (1 Daniell’s Ch. Pl. and Pr. [4th, Perkins’, ed.], 191, 200; Story’s Eq. Pl., §§ 72, 77, 170; Calvert on Parties, 3; Gray v. Schenck, 4 N. Y., 460; McLoughlin v. Van Keuren, 21 N. J. Eq., 379; Story on Conflict of Laws, 842; Sturtevant v. Brewer, 17 How. Pr., 571; affirmed, 4 Bosw., 628; Hallett v. Hallett, 2 Paige, 19; Wendell v. Van Rensselaer, 1 Johns. Ch., 350; Shaver, Receiver, etc., v. Brainard, 29 Barb., 25; Davis v. The Mayor, etc., 2 Duer, 663; State of New York v. Mayor of New York, 3 id., 121.)

      Charles Jones, for the respondent.
   Davis, P. J. :

This action is brought upon a judgment recovered by George W. Betts, against the defendants, as surviving partners of the firm of James A. Hoyt & Co. . The judgment was recovered in the Supreme Court, and duly entered, on the 31st day of May, 1851. In March, 1870, the plaintiff commenced an action on said judgment against the defendant William Scott, alone, describing the judgment in the complaint as having been recovered against both of the defendants, as survivors of the firm of James A. Hoyt & Co. The defendant Scott appeared and answered, and, amongst other things, alleged the recovery of the judgment against himself and Hoyt, jointly, as such surviving partners; that Hoyt was still living, and was a necessary party to the action. Afterward, and in June, 1871, an order was made at Special Term, on consent of the attorneys for Scott, directing that the complaint be amended by inserting the name of James A. Hoyt, as defendant, and making such other changes as the insertion of his name required. In June, 1872, Hoyt appeared in the action by Messrs. Ball & Beall, his attorneys, who demanded a copy of the complaint, etc., to be served on them. The amended complaint was served on such attorneys, in July following, to which Hoyt separately answered, and, amongst other things, alleged, as a further and separate defense, that the cause of action stated in the complaint did not accrue within twenty years next before the commencement of this action.” The judgment having been recovered on the 31st day of May, 1851, twenty years had not elapsed when the action was commenced' against Scott alone, in March, 1870. But, when Hoyt was made a party to the complaint by order of the court, in June, 1871, more than twenty years had expired since the recovery of the judgment. By section 70, of the Code of 1848 (now section 90), and section 74, of the Code of 1851, it is provided that an action upon a judgment can only be commenced within twenty years. After much judicial conflict, it is the settled law of this State as to joint debtors, that, in respect of the defense of the statute of limitations, each stands upon his own bottom; and it therefore does not follow that, because one of such debtors cannot interpose the statute as a defense, others may not. The answer of Hoyt in this case, setting up the statute of limitations, was a good plea unless the action is to be deemed commenced against him, under section 99 of the Code, before the expiration of the twenty years. That section provides, that “ an action is commenced as to each defendant when the summons is served on him, or on a co-defendant, who is a joint contractor, or otherwise united in interest with him.” Under this provision, if Hoyt had been joined as a defendant with Scott at the commencement of the action, the service on Scott would have taken the case out of the statute of limitations as to both. But Scott was sued alone. He then had no co-defendant to be affected by service on him, and although the cause of action was stated to be a joint one, in such form that Scott could plead the non-joinder of Hoyt in abatement, that fact does not answer the requirement of the Code. It was only because Hoyt was not a co-defendant, that Scott could plead in abatement; and it is not enough to show by the form of pleading, that another joint debtor ought to be joined in the suit, to constitute the latter so far a defendant that the suit can be deemed commenced against him within section 99 of the Code. The question, then, must depend upon the effect of the amendment of the complaint, ordered by the court in June, 18*71. That order was made by consent of the attorneys of Scott. Hoyt had no notice of the motion, nor did he appear and consent. It was made after the statute had run as to Hoyt. The eases above cited show that Scott had no authority, either by payment of part, or by express promise, or in any form, to revive the judgment as against his co-debtor. Nor do we think either he or his attorneys could, by consent or any other arrangement, so amend the proceedings that Hoyt would thereby be made a defendant by relation, as of the date when the action was commenced. What effect Hoyt’s voluntarily coming in and. consenting to such an amendment as was made, would have had, need not be discussed, for that question is not before us. The order of June 9, 1871, made Hoyt a formal party to the action as of that date, for all purposes necessary to obviate the plea in abatement for his non-joinder, and for such other purposes as might he essential to the prosecution of the action against Scott upon the alleged joint indebtedness. But it did not, and could not, deprive Hoyt of the defense already accrued under the statute. Had Hoyt been brought in as a party before the statute had run, the suit might be deemed commenced as of the time when he was made a party, and the service actually made upon his co-defendant would under the Code, have saved the running of the statute. He appeared, however, in the action more than a year after the amendment, and pleaded the statute of limitations as a defense. We think he was clearly entitled to the benefit of that plea, and the plaintiff having shown no .fact taking the case out of the statute as against him, he was entitled to judgment in his favor. As to him, therefore, the judgment must be reversed, and a new trial ordered, with costs to abide the event.

The findings and conclusions of the learned referee, in regard to the judgment, and that it was upon an assigned note, and was recovered by Betts in his own name for the benefit of the trust, seem to us correct, 'under the pleadings and evidence. We are not able to see how the plaintiff, as receiver of the assignor, Roswell H. Sawyer, acquired title to the judgment .in suit. It appears that Sawyer became insolvent in 1850, and made an assignment of his property to George W. Betts in trust for his creditors, making three classes; the first and second being preferred creditors, and the third his general creditors. Betts accepted the trust and proceeded in its execution so far as to pay off the preferred indebtedness to himself, and then with the assent of creditors of the next class, he appointed Mr. Sawyer an agent to collect the assets. Sawyer made collections and paid the second class of creditors ten per cent on their debts. Betts died, leaving the trust unexecuted. He left no will and no assets, and administration was not taken out upon his estate. The death of Betts revoked the agency of Sawyer. Sawyer had no title or legal interest in the property beyond the possible reversion of a surplus after the payment of all his debts and the complete execution of the trust. Nothing could be reached in a suit against him while the trust under the assignment remained in force but that possible contingent interest. The suit in which the plaintiff was appointed receiver on an ex parte application, was brought by Jacob S. Merritt against Roswell H. Sawyer. Neither the heirs of Betts nor any representative of him, were made parties. Although the order appoints the plaintiff receiver of "all the property, assets and effects, of every nature and kind, which have not been collected and converted into cash and distributed under an assignment made by the defendant Roswell H. Sawyer to George Betts in the year 1852, yet it is difficult to see how the receiver could acquire, under such order, any other legal title or interest in such property than Sawyer himself had. On the death of Betts, no title reverted to Sawyer. Probably, under the circumstances, a court of equity might have been invoked in a proper action to appoint a trustee to complete the unexecuted trusts of the assignment, but it does not appear that the proceeding in which the plaintiff was appointed, was of that nature, nor that his receivership was created for the purpose of executing such trusts. Possibly, on a new trial, something further may be shown to uphold the right of plaintiff to maintain the action. •

Daniels and Brady, JJ., concurred.

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

      Van Keuren v. Parmalee and others, 2 Comstock, 523; overruling Johnson v. Beardslee, 15 Johns., 3, and Patterson v. Choate, 7 Wend., 441; Shoemaker v. Benedict, 1 Kernan, 176; Lewis v. Woodworth, 2 Comstock, 512; Denny v. Smith & Hull, 18 N. Y., 567; overruling Brown v. Delafield, 1 Denio, 445; Bogart v. Vermilya, 10 N. Y., 447.


author: Daniels, J.:

text:
    JOHN MULLALY, Plaintiff, v. THE MAYOR, Etc., OF THE CITY OF NEW YORK, Defendant.

      Statutes — construction of—sec. 1, chap. 574, Laws of 1871 — sec. 115, chap. 137, Laws of 1870 — Pow&r cf city to contract with its officers.

    Statutes are in pari materia, which relate to the same person or thing, or to the same class of persons and things, and are to be considered, construed and enforced together.
    Section 115 of chapter 137, Laws of 1870, prohibiting certain officers therein named from being interested in any contract with the city, was not repealed by section 1 of chapter 574, Laws of 1871, authorizing the mayor and comptroller to designate newspapers in which to publish the proceedings of the common council. Accordingly, where the newspaper owned by the plaintiff was designated for such purpose, he being at that time one of the health commissioners of the city, held, that he was incapable of taking such contract; and that, as it was expressly forbidden by law, its performance could create no valid claim against the city for compensation.
    Motioit by plaintiff for judgment on a verdict taken in his favor, subject to the opinion of the General Term.

      John H. Strahan, for the motion.
    The words “ work,” “ supply,” “contract,” as used in the charter, have a restricted meaning. (People v. Flagg, 17 N. Y., 584; Farmers' Loan and Trust Co. v. The Mayor, etc., 4 Bosw., 80; Smith v. Mayor, etc., 21 How. Pr., 1; Harlem Gas-Light Co. v. The Mayor, etc., 33 N. Y., 309; McLaren v. The Mayor, etc., 1 Daly, 243.)

      James M. Smith and E. Delafield Smith, opposed.
    Where the law or an ordinance points out specifically the manner in which an act must be done, or where the acf contains prohibitions and exceptions, the corporation must follow the statute. They cannot ratify an invalid contract, or a contract, the manner of the making of which is pointed out by statute or ordinance, except by a statute or ordinance. (Brown v. The Mayor, etc., of New York, manuscript decision, January Term, 1874; Brady v. The Mayor, etc., of New York, 20 N. Y., 319; Hodges v. Buffalo, 2 Denio, 110; Halsted v. The Mayor, 3 N. Y., 430; Boom v. Utica, 2 Barb., 104; Sharp v. Spear, 4 Hill, 76; Smith on Stat., 676, 677.) The payment by defendants to plaintiff for work done under the appointment, cannot be set up as a ratification. (Brady v. The Mayor, etc., 20 N. Y., 319.)
   Daniels, J.:

It appears from the proof given upon the trial, and the admissions contained in the pleadings in this cause, that the plaintiff was the owner of the newspaper published in the city of Hew York, called the Metropolitan Record. That, on the 10th day of May, 1871, the mayor and comptroller of the city, under the authority conferred upon them by virtue of section 1, chapter 574 of. the Laws of 1871, designated that as one of the weekly newspapers to publish a digest of the proceedings of the common council, as prepared and authorized under the direction of the mayor and comptroller. Under and pursuant to such designation, the publication was made in that newspaper from the 9th of January, 1872, until the 9th of January, 1873. Payments were made for the publication up to the 1st of January, 1873, when it was discontinued. A balance remained due to the plaintiff amounting to $8,644.41, for which, with interest, the verdict was directed. When the designation of the plaintiff’s paper was made, and during the time the digest of the proceedings of the common council was published in it, he was one of the health commissioners of the city of New York. The act of 1871 simply conferred upon the mayor and comptroller the power, and rendered it their duty, to designate the papers in which the digest of the proceedings of the common council should be published, and provided for publication in such journals. It contained nothing which removed, or was inconsistent with, the restraints imposed f preceding legislation, declaring the class of persons who should not be employed or interested in the contracts or work of the corporation. It did not, either expressly or by implication, provide that contracts or employment, prohibited as unlawful by other statutes, should be made, maintained or enforced, under any of its provisions; but it simply created the authority to designate and employ public journals, defined the manner in which that should be done, the duties to be performed, and the modes through which payments might be secured. This was, in no respect whatever, inconsistent with the continuance of preceding laws, providing that officers and persons in the employment of the corporation should not be directly or indirectly interested in the contracts made by it or its officers; and where that may be the nature of a succeeding law, it does not have the effect of repealing or modifying that which has preceded it. This is a well settled rule applied to the construction of statutes; and it renders it the duty of courts to maintain and enforce both, where the latter is not found to be plainly inconsistent with the former.* Under this rule, the provision authorizing the designation by the mayor and comptroller, made by the act of 1871, must be consider " and enforced subject to the restraint created by section 115 of chapter 137 of the Laws of 1870, which provided that no member of the common council, head of department, chief of bureau, deputy thereof, or clerk therein, or other officer of the corporation, shall be directly or indirectly interested in any contract, work or business, the price or consideration of which is paid from the city treasury, or by any assessment levied by any act or ordinance of the common council. That so far qualified the power given the mayor and comptroller by the succeeding act, as to render it subject to the proviso or condition, that, in making the designation, this prohibition should not be violated. They were fully empowered to designate the newspapers, but at the same time they were not authorized to violate, in doing so, other laws imposing just and wholesome restraints upon their acts, and upon the capacity of other persons to be employed by them. On the contrary, in executing the authority given, they were bound to do it without violating other statutory enactments. In performing one duty, they were not at liberty to violate another created by the same authority. These statements related to the same general subject. They were in pari materia, and for that reason required to be considered, construed and enforced together. It is well settled, that, in construing a doubtful statute, and for the purpose of arriving at the legislative intent, all acts on the same subject-matter are to he taken together and examined, in order to arrive at the true result; and statutes are in pari materia, which relate to the same person or thing, or to the same class of persons and things. The act of 1870 relates to and includes all contracts, work or business, to be paid for out of the city treasury, or by any assessment upon property; and that comprehended the contract or employment presented by this case, for the compensation to be paid for the performance of it, was payable out of the treasury of the city. The plaintiff was within the prohibition of the act of 1870. His designation, and the acceptance of it, constituted a contract on his part to make the pub-, lication, and on the part of the city to pay him the compensation provided for its performance. It was both a contract and work to be done, within the plain import of those terms as they were used in the act of 1870 ; and, as health commissioner, he was incapable of taking such contract or work. For, in that capacity, he was one of the heads of a department of the city. The health department consisted of the police commissioners, the health officer of the port, and four officers appointed by the mayor, called commissioners of health of the city of Hew York, and these several officers together, constituted a board which was made the head of the health department. The contract or employment was an unlawful one, in direct violation of one of the laws of the State expressly prohibiting it, and its performance could create no valid claim against the city for compensation. The payments made by the defendant

upon the services rendered in the performance of the unlawful employment, do not advance or maintain the plaintiff’s case; for, not having the power to lawfully enter into the agreement, it could not confirm or ratify it by partial performance. As long as the contract could not be-directly made, no indirect action could supply it with legal vitality. It was at all times prohibited by law, and for that reason incapable of confirmation,

The restriction created by the statute was highly statutory in its character. It was designed to prevent persons, employed and appointed for the promotion and protection of the public interests, from being diverted from those objects by means of the pecuniary advantages they might otherwise secure for themselves. It was to harmonize the obligations of duty, and the inclinations of self interest-; to avoid the neglect or misconduct which a conflict between duty and interest would be apt to generate, and which could not fail, in the end, to increase the public expenditures and burdens, requiring for their satisfaction enhanced taxation. The policy is similar to that which courts of law and equity have, from a high sense of duty, imposed upon all persons acting in the capacity of trustees; and, instead of being unreasonably restrained by construction, it should be liberally applied for the promotion of the end designed to be accomplished by its enactment. It may operate harshly on the plaintiff, by depriving him of compensation for services performed; but for that, he and the officers appointing him must bear the responsibility. As one of the heads of a department of the city, it was his duty to know the law, so far, certainly, as it affected his incapacity, arising out of the position occupied by him, to accept the contract and employment tendered to him by the desig nation; and if the failure to observe that duty involves him in loss, it must be mainly attributed to that cause. Under the circumstances shown, he has no lawful demand against the defendant. For that reason, judgment should be ordered for the defendant on the verdict.

Present — Davis, P. J., Daniels and James, JJ.

Judgment for defendant.

       Spratt v. Huntington, 9 Sup. Ct. R (2 Hun), 341, 344, 345.

       Vol. 1, Laws of 1870, 895, § 115.

       Sedgwick on Statutory and Const. Law, 247, 248.

       Vol. 1, Laws of 1870, 388, §90.

       Seneca Co. Bank v. Lamb, 26 Barb., 597; Barton v. Port Jackson Plank-road Co., 17 id., 397; Donovan v. Mayor, 33 N. Y., 291.

         Marsh v. Fulton Co., 10 Wallace, 677.


text:
    THE PEOPLE ex rel. MARIANNA JENNYS, Respondents, v. MATTHEW T. BRENNAN, Sheriff, etc., Appellant.

      Bankruptcy—Conflicting claims to property — how determined—Jurisdiction — when consent of party will confer.

    The proper mode of determining conflicting claims to money in the hands of the sheriff, collected by him upon an execution issued against the bankrupt, is by a bill in equity, filed either by the assignee or the sheriff.

      Smith v. Mason (14 Wall., 419) and Marshall v. Knox (16 id., 551) followed.
    Where a petition is presented to the United States District Court, by the assignee in bankruptcy, praying for a disposition of the conflicting claims made to money in the hands of the sheriff (upon the hearing of which, the assignee, the sheriff and the party claiming the money, all appear by counsel), and an order is made by consent, referring it to one of the registers, to take proof and report the same to the court with his opinion; and, upon the coming in of his report, all the parties having appeared before him, an order is made directing the sheriff to pay the money to the assignee: held, that the party claiming the money, by consenting to the order of reference, waived his right to insist that the court had no jurisdiction, for the reason that the proceeding should have been by bill and not by petition; and that the fact that such objection was taken by him, at the hearing before the register, did not deprive the court of the jurisdiction thus acquired.
    The relator, on or about the 11th day of July, 1871, recovered a judgment in this court against her husband, John L. R. Jennys. On the twenty-eighth of the same month, an execution against property was issued upon the judgment to the appellant, as sheriff of the county of New York, upon which he collected the sum of $1,277.90, besides his fees and expenses. Before the moneys so collected were paid over, proceedings were taken in the United States District Court for the southern district of New York, under the bankrupt law, for the purpose of having the judgment debtor and his partner adjudged bankrupts, and for a distribution of their property among their creditors. While those proceedings were pending, and on the 10th of May, 1872, an order was made on the application of the relator, after hearing the appellant, ordering him to pay over to her the moneys collected by him on the execution. From that order he appealed to the G-eneral Term, where it was affirmed on the 4th day of June, 1872. A further application was made to punish the appellant for contempt, for not paying over the money, as required and directed by the order of the 10th of May, 1872, and that resulted, on the 5th of October, 1874, in an' order imposing a fine upon him, amounting to the sum of $1,483.05, and $260 costs and expenses of the proceedings, and directing his commitment to prison until he should pay the same.
    Upon the hearing- on which the last order was made, it was shown that, on the same day the order of the 10th of May, 1872, was served on the appellant, and near the same time, an injunction was also served upon him, issued out of the United States District Court, enjoining and prohibiting the payment of such moneys to the relator. It was further made to appear, that a petition was presented to that court, by the assignee who had been appointed in the bankruptcy proceedings, for a disposition of the conflicting claims made to the moneys in the hands of the appellant under the execution. On the hearing of that petition, the relator, the appellant and the assignee appeared by their respective counsel, and an order by consent was made, on the 10th of February, 1872, referring the claim made by the assignee to the money, to one of the registers of the court, to take proof and report it with his opinion to the court. At the outset of the hearing before the register, the relator’s counsel objected that the proceeding by petition was improper, and that her right to the money could only be properly contested by a bill in equity. After that, both the claiming parties proceeded with the hearing, and gave evidence before the register. He afterward returned the evidence to the court, with his opinion in favor of the assignee, and the United States District Court, after hearing the counsel for the relator and the assignee, and on notice to the appellant, on the 1st day of March, 1873, ordered him to pay the money over to the assignee, which he did, on the tenth day of that month. On the 20th day of June, 1873, an attachment was ordered to issue against the appellant to bring him before the court for punishment for disobeying the order of the 10th of May, 1872; and, in the proceeding following his arrest on the attachment, the order was made imposing a fine upon him for such disobedience. From the last order the sheriff appealed to this court.

      J, Sterling Smith and A. J. Yanderpoel, for the appellant.
    The United States District-Court had jurisdiction of the subject-matter of this controversy, and its order cannot be questioned on this motion. (Bankrupt Act, § 1; Fisher v. Hepburn, 48 N. Y., 41; The Chemung Canal Bank v. Judson, 8 id., 254, 262, 263.) The order of reference to the register having been entered on the consent of the relator, it was a voluntary submission to the jurisdiction of the court; it was too late for her counsel to object afterward, that the referee had no right to proceed under the order so entered. (Felly v. Smith, 1 Blatch., 296.) This proceeding in the District Court was binding upon all the parties thereto, and the order therein cannot be attacked collaterally, provided the District Court had jurisdiction of the matter. (Gelston v. Hoyt, 1 Johns. Ch., 542; Young v. Rummell, 2 Hill, 478; Ehle v. Bingham, 7 Barb., 494; Demarest v. Darg, 32 N. Y., 281; Fisher v. Hepburn, 48 id., 41.)

      O. P. Buel, for the respondent.
    The order of May tenth, affirmed by the General Term, in this district, determines the rule in this proceeding as to every question of law and fact expressly or by necessary implication passed upon in that adjudication. The sheriff can neither justify ñor excuse his disobedience by impeaching or attacking, directly or indirectly, the order he has disobeyed. (People v. Sturtevant, 9 N. Y., 263, Johnson, J., 266; Pitt v. Damison, 37 id., 243; People v. Johnson, 38 id., 63; Woodgate v. Fleet, 44 id., Earl, C., 13, 14; Davis v. The Mayor, 1 Duer, 451; Erie Railway Co. v. Ramsey, 45 N. Y., 637.) The district judge should have dismissed the proceeding. Neither the appearance of the party proceeded against, nor such party’s contesting the title to the fund, waives objection to the jurisdiction. Express consent even, could not confer jurisdiction in such a case. (Marshall v. Knox, 16 Wall., 551; Smith v. Mason, 14 id., 419; Bump’s Bankruptcy [7th ed.], 201; Knowlton v. Prov. & N. Y. S. S. Co., 53 N. Y., 77; People v. White, 24 Wend., 520; Buffalo, etc., R. R. Co. v. Supervisors, 48 N. Y., 99; Bloom v. Burdick, 1 Hill, 130; Norton v. Cook, 9 Conn., 314; Kerr v. Kerr, 41 N. Y., 275; Blin v. Campbell, 14 J. R., 432; Bigelow v. Stearns, 19 id. [Spencer, C. J.], 41; Galpirn, v. Page, 18 Wend., 350; Burckle v. Eckhart, 3 Coms., 137; Clapp v. Graves, 26 N. Y., 418; opinion by Marvin, J., as to distinction between irregularities and nullities; Attorney-General v, Hotham, 1 Turn. & Russ., 219; 2 Phil. Ev. [4th ed.], 20; Cowen & Hill’s note, 262; id., 146; note, 293 [3]. As to jurisdiction with respect to process: id., 195; note, 306 [2]; Gracie v. Sheldon, 3 Barb., 232.) The objection to the form of the proceeding may be taken even at the hearing, or in the supervisory court. (Bump’s Bankruptcy [7th ed.], 201; In re Ballou, 3 B. R., 717; S. C., 4 Ben’t., 135; In re Bonesteel, 7 Blatch., 175.)
   Daniels, J.:

The respondents’ counsel insists that this court is concluded by the order made on the 10th of May, 1872, directing the appellant, the sheriff, to pay her the money he had previously collected on the execution in her favor, from questioning the propriety of that direction. But that is clearly a misapprehension of the condition of the case, for the order which directed the attachment to be issued, so far modified the preceding order, as to allow the parties to read, upon the hearing which should be afterward had, the papers used by the respective parties on the hearing of an order to show cause; and from the circumstance that the proceedings fin the United States District Court were produced and proved on the part of the sheriff, it may be inferred that they were within the scope of the modification so made. This conclusion is further warranted by the fact, that no objection that they were not within it, seems to have been taken by the relator to that course of proceeding. And the opinion of the learned justice, by whose direction the order for the attachment was entered, very decidedly confirms that view of the liberty secured by means of it. From that, it appears -that the intention existed to allow the sheriff to show that the relator had consented to the reference, made of the controversy concerning the title to the money collected under the execution, by .the "United States District Court, by way of answer to the proceeding instituted to punish him for disobeying the order directing him to pay the money to her; and, on the final hearing of that proceeding, that tact, as well as the hearing and final order following it, were shown for the purpose of protecting him from the order afterward made, imposing a fine upon him for his disobedience of the order directing the payment to the relator. These facts were entirely proper to be shown on the part of the sheriff, for another reason; for, although the reference in the United States District Court, was ordered before the order was made, directing him to pay the money to the relator, the hearing itself was chiefly, if not entirely, afterward, and the final order, under which the money was paid to the assignee, was not made until the 1st day of March, 1873. The effect of the hearing, and of the order made upon its determination, could not be considered, and was not involved in the order of the 10th of May, 1872, directing payment to the relator; and, unless the sheriff could prove them for his protection in the proceeding instituted by the attachment, he would have been completely deprived of all benefit from them. They were entirely proper for the consideration of the court, in the proceeding taken to punish the sheriff for disobeying the order of the 10th of May, 1872, because the final hearing on the referee’s report before the United States District Court, its confirmation, the order for payment of the money, and payment itself, all occurred after that time.

As the proceedings in the District Court of the United States were not concluded until long after the order which was disobeyed was made, it could not be then known whether they would result in a direction adverse to the relator’s claim.or not; and it was not possible for the court to consider or adjudge the effect of such a direction.

The first opportunity for presenting and considering the effect of the determination which was made, was in the proceedings taken by the attachment, and in them it was fully shown, together with what preceded and followed it in the United States District Court. But, notwithstanding the adjudication of that court that the money in controversy should be paid by the sheriff to the assignee in bankruptcy, and the actual payment following it, the Special Term of this court held, in the proceedings instituted by the attachment, that the payment was unlawful, and that the sheriff must pay the money again to the relator. The effect of the decision is, that the proceedings in the United States District Court, and payment under and pursuant to them, constituted no proper answer to the relator’s demand for the same money. Whether that conclusion was correct or not, is the point now remaining to be considered in the disposition of the present appeal. Under the bankrupt law, there can be no doubt that the proper mode of determining the conflicting claims made for the money collected upon the execution, was by a bill in equity, either by the assignee or the sheriff. That point has been definitely settled by the decisions made in Smith v. Mason and Marshall v. Know. But in both those cases, the proceedings by petition were not only opposed by the parties proceeded against, but they were reviewed in the manner which the bankrupt law provided for that purpose. The present case is distinguishable from them in both respects, for the relator first consented to the reference of the claims under the petition of the assignee, and, after a determination against her, denies its effect only in a collateral proceeding.

The proofs produced upon the hearing under the attachment, show that her counsel consented to the reference in order to avoid the necessity of the more formal action by bill of complaint, and that consent was in no manner attempted to be withdrawn, until it had been acted upon and the reference ordered. After that, and after the objection was made before the register that the proceeding should have been by bill, the relator proceeded with the hearing, and gave, as well as contested, evidence which was pertinent to the settlement of the controversy embodied in the order. The objection was renewed in the brief presented to the United States Court on the final hearing, but, in the disposition then made of the case, it must have been overruled.

That the United States District Court had jurisdiction over the controversy existing between the relator and the assignee, is settled by the authorities already cited; and if her consent was sufficient to subject her to that jurisdiction by the proceedings commenced by the' petition, then the objection afterward made did not have the effect of depriving the court of the authority which she had-voluntarily given it over her person. It had the power of subjecting her to its jurisdiction for the settlement of the dispute existing between her and its officer; but not by means of the summary proceeding taken by him, unless she elected to consent to it. But, as she did consent, and the reference to take the proof was made upon that basis, by that act she surrendered herself to the jurisdiction of that court for the purposes comprehended in the petition. She was irregularly brought before it, but waived the irregularity by the assent to the proceedings, which her counsel gave in her behalf. That gave it jurisdiction over her person ; and, as the subject-matter was within its lawful authority, that was sufficient to enable the District Court to proceed with the hearing and decision of the dispute concerning the money in the sheriff’s hands. After jurisdiction was obtained in this manner over the relator, the court had the right to retain it until all the purposes of the proceedings were fully attained, and, even though it might have been irregular, it was still binding and effectual as long as it was neither reversed nor set aside. This was held of a similar proceeding, in the case of People v. Norton, where a trustee had been removed by petition, instead of by bill of complaint. By way of answering the objection, it was replied in the opinion delivered, and concurred in by all the members of the court, that “ the Court of Chancery had general jurisdiction of all cases of trust, and the power by its general authority, independent of any statute, to displace a trustee on good cause shown, and to substitute another in his stead. It is said that this must, in all cases, according to the course and practice of that court, be done by bill and not upon petition. But a departure from the usual practice of the court, in doing an act which the court has authority to do, does not render the act void. It may be irregular or erroneous, and, upon a direct proceeding, may be set aside or reversed; but its validity cannot be questioned in a collateral action.” ' This principle is directly applicable to this case, and the decision is a "decisive authority against the position taken in the relator’s behalf; and it is further fortified and maintained by the circumstance that consent has generally been held sufficient to confer jurisdiction over the person giving it. To the same effect, also, is the case of Fisher v. Hepburn. And it was assumed to be the case in both the authorities cited from the United States Supreme Court Reports. For that court held, that “ strangers to the proceedings in bankruptcy, not served with process, and who have not voluntarily appeared and become parties to such litigations, cannot be compelled to come into court under a petition for a rule to show cause.” A voluntary appearance was evidently considered to be sufficient for all the purposes of jurisdiction, even over strangers to the proceeding. The same thing was decided in Ex parte Squires v. Broome C. P., where the defendant was served with a declaration out of the county, which gave the court no jurisdiction over his person; and it was held- that he waived the objection, by procuring an order in the cause that the plaintiff should file security for costs.

Objection to the jurisdiction over the person of a party may be expressly waived, and the same thing may be done by implication, by means of any act indicating it to be the design of the person entitled to make it, not to insist upon it. And in Clapp v. Graves, the principle was applied to the support of a judgment recovered before a justice, where the defendant, a non-resident, was proceeded against by a long instead of a short summons. As he appeared in the action, and took no objection to the process, the jurisdiction over him was held to be complete, and that, too, where the statute provided that it could only be acquired by the service of a short summons. Other cases of a similar nature will be found in 2 Wait’s Law and Practice (1st ed.), 17, 19. Neither the case of the Buffalo & State Line R. R. Co. v. Supervisors, nor that of Bloom v. Bwrdick, is opposed to this principle. In the latter, the real property of infants had been sold upon proceedings in a Surrogate’s Court, without the appointment of a guardian for them. Being infants, they could not waive the defect, and, for that reason, the court had no jurisdiction over them. According to the authorities applicable to the present controversy, the relator was concluded by the proceedings instituted with her consent in the United States District Court, for the determination of the dispute concerning the title to the money in the sheriff’s hands. The determination there made, fully justified him in paying it over to the assignee, and that was sufficient, under the circumstances properly appearing on the hearing, and specially allowed by the order directing th'e attachment, to exonerate him from the ordinary consequences which vyould otherwise have resulted from his disobedience of the order of the 10th of May, 1872. By the proceedings taken upon the relator’s consent, she precluded herself from the right to complain of such disobedience. The order appealed from should be reversed, with ten dollars costs, besides disbursements, and the motion made denied, with ten dollars costs.

Davis, P. J., and Bbadt, J., concurred.

Ordered accordingly.

       14 Wallace, 419.

       16 Wallace, 551.

      Pitt v. Davison, 37 N. Y., 335, 343.

         5 Seld. 176, 178.

      48 N. Y., 41, 53.

       Marshall v. Knox, 16 Wall., 557.

       lO Wend., 600.

       Allen v. Malcolm, 13 Abb. (N. S.), 385; Hobart v. Frost, 5 Duer, 673; Baker v. Braman, 6 Hill, 47; Conkling v. King, 6 Seld., 440, 446; Buel v. Trustees of Lockport, 3 Com., 197, 300.

       26 N Y., 418.

       48 N. Y, 93.

       1 Hill, 130.

       Dwight v. St. John, 25 .N. Y., 203; Embury v. Connor, 3 Com., 511, 522.


text:
    JOHN FRISBEE and others, Appellants, v. PATRICK FITZSIMONS and another, Respondents.

      False repi'esentations — Intent—from, what inferred — Stipulation —pow&r of court to set aside.

    This action was brought to recover the damages sustained by the plaintiffs, by reason of false representations made by the defendants as to the solvency of the firm of M. & A. The judge charged the jury that the plaintiffs could not recover unless the representations were made with intent to deceive, or unless the defendants designedly concealed facts from the plaintiffs, which it was important for them to understand in order to. form an intelligent conclusion concerning the probable pecuniary ability of the firm. Held, that the charge was correct.
    The intent to deceive may he inferred from the fact that the person making the representations knew them to be false, or had no reason to believe them to he true.
    The court, at the trial, cannot set aside a" stipulation entered into by the parties 1 to the action, on the ground that statements contained in the affidavits, allowed to be read as evidence under its provisions, are untrue; this can only be done upon a motion to be made at the Special Term.
    Appeal from a judgment in favor of the defendants, entered upon the verdict of a jury.

      H F. Hatch, for the appellants.
    One who, without knowledge of its truth or falsity, makes a material misrepresentation, is guilty of fraud, as much as if he knew it to be untrue. (Story on Con., 506; Bennett v. Judson, 21 N. Y., 238; Wakeman v. Daly, 44 Barb., 502; Galoupeau v. Ketchum, 3 E. D. Smith, 175; 1 Story Eq,, § 193, cited in 21 N. Y., supra; Sharp v. Mayor, 40 Barb., 266; Marsh v. Falker, 40 N. Y., 573.) It is not essential that the false representations were the sole inducement of the sale; if they contributed to it, the defendant is liable. (Addington v. Allen, 11 Wend., 381; Hubbard v. Briggs, 31 N. Y., 532.) If, without knowing that it is not true, a party takes upon himself to make a representation to another, upon the faith of which that other acts, no doubt he is bound, though his mistake was perfectly innocent. (Binnard v. Spring, 42 Barb, 477; Clapton v. Cozart, 13 Smedes & Mar., 363; Marsh v. Falker, 40 N. Y., 573; Weed v. Case, 55 Barb., 535; Sharp v. Mayor, 40 id., 266; 2 Pars, on Con., 785; 1 Story Eq., § 193.) Good faith requires that the existence of debts owing to the representing party by the parties that he calls worthy of credit, should be disclosed. (Zabriskie v. Smith, 13 N. Y., 331; Viele v. Goss, 49 Barb., 98; approved in 40 N. Y., 573; Brown v. Montgomery, 20 N. Y., 287.) The plaintiffs having been misled by false statements in the affidavits, the stipulation made on the faith thereof is void for fraud in its procurement. (Willink v. Vanderveer, 1 Barb., 599; United States v. Tingey, 15 Peters, 578; Reigal v. Wood, 1 John. Ch., 236; Warner v. Blakeman, 4 Keyes, 487.) The court will relieve from the stipulation even up to the last moment upon the trial itself, when it appears that the instrument was fraudulently obtained. (Thomson v. Graham, 1 Paige, 384; Dobson v. Pearce, 12 N. Y., 165.)

      John D. Herncm, for the respondents.
   Daniels, J.:

This action, as it was tried, was for the recovery of damages occasioned to the plaintiffs by means of misrepresentations made by the defendants, concerning the solvency of Maxwell & Atwood. The court submitted it to the jury, on the theory that the plaintiffs’ right to recover depended upon the fact that the representations were made to deceive them, or else that' the defendants designedly concealed facts from them, which it was important for them to understand, in order to form an intelligent conclusion concerning the probable pecuniary ability of that firm. As the law is now well settled, the plaintiffs had no right to require a more favorable statement of the principles on which their claim was legally dependent. And they did not do so, but simply excepted to what had been said, in reference .to the necessity of an intent to deceive, in order to enable the plaintiffs to maintain their action. That intent may well be inferred from representations, either known to be false by the person making them, or which he may have no reason to believe to be true.

A stipulation was made in the case, allowing the defendants to read in evidence certain affidavits used on a motion to change the place of trial. These affidavits stated, in substance, that the firm of Maxwell & Atwood did have sufficient property to pay their debts, when the defendants recommended them as worthy of credit. The court referred to the admission, as one relating merely to their real property. In that it was in error, and it would no doubt have been at once corrected, if the counsel had suggested the mistake. That was not done, but an exception was taken to what the court had said in reference to the stipulation without in any manner indicating the inaccuracy complained of. This was not sufficient to present the point now urged by the plaintiffs’ counsel.

Proof that the plaintiffs would not have sold to Maxwell & Atwood, if they had known of assignments by them to the defendants, was properly excluded, as long as no such assignments had then appeared to have been made. That fact should have been first shown, to have rendered the answers proper.

The court, at the trial, could not strike out the stipulation, even if the statements made in the affidavits appeared, in some respects, to be untrue. That might have been good ground for a motion at Special Term to be relieved from the stipulation, but it formed no part of the trial of the action.

At the close of the , evidence, an application was made by the plaintiffs for the court to direct a verdict in their favor. The facts of the case were too much in dispute, to justify a compliance with that request. The plaintiffs’ right to recover depended upon contested matters of fact, rendering it the appropriate province of the jury to decide the dispute in the case. It was fairly submitted for that purpose, and the judgment should be affirmed.

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

Judgment affirmed.

       Viele v. Goss, 49 Barb., 96; Marshall v. Gray, 57 id., 414; Robinson v. Flint, 58 id., 100; Hubbard v. Briggs, 31 N. Y., 518, 529; Marsh v. Falker, 40 id., 562; Meyer v. Amidon, 45 id., 169; Oberlander v. Spiess, id., 175.


text:
    JAMES SCHONBERG, Respondent, v. ARTHUR CHENEY, Appellant.
    Contract— to produce platy—damages for breach, of.

    The defendant, the owner of a theater in the city of Boston, agreed with the plaintiff to produce a play written by plaintiff, on the seventh of May, and to pay him twenty dollars for each time of its performance. Upon his failure to perform, held, that the defendant was only bound to produce the play once, and he was only liable in damages for the amount to be paid for one exhibition.
    Appeal from a judgment in favor of the plaintiff, entered on á verdict, and from an order denying a motion for a new trial, made on the minutes of the court.

      Wm. D. Booth, for the appellant.

      Charles Blandy, for the respondent.
   Daniels, J.:

The defendant was the proprietor of a theater in Boston, in which he agreed to produce and exhibit a play, dramatized by the plaintiff, and afterward failed to perform the agreement. For that failure the plaintiff was entitled to recover. And the extent of that right is the only point presented by the present appeal.

The contract was made by telegraph, and no substantial difference exists between the statement made of it in the complaint, and the nature of it as the dispatches exhibit it. In the complaint it was alleged, that, in consideration that the plaintiff would allow the defendant to act and produce the play, and would provide the manuscript and scene plots of such play, he contracted and agreed to produce it, and act and perform the same on the seventh day of Hay, 1870, and pay the plaintiff the sum of twenty dollars for each and every time the piece should be produced and acted at Selwyn’s theater in Boston ; and that he further contracted to produce upon the stage, and publicly represent the play within a reasonable time after receiving the manuscript and scene plots. -The plaintiff then avers that he accepted the contract and agreement, so offered and made, and performed on his part, but that the defendant refused to produce the play, and claims damages for such non-performance.

By the dispatch sent the plaintiff from the defendant’s agent, he was asked : “ What are your terms for Fern ande ? Can I produce it May seventh % ” To this the plaintiff replied: Twenty dollars per night. You can announce it for May seventh ; if you conclude, will send scene plots to-night. Answer.” The answer was returned: Agreed to terms; piece announced for May seventh ; send manuscript and plots immediately.”

There was nothing in the correspondence by letter, or in the other evidence given, changing or extending these terms. Both the allegations contained in the complaint, and the dispatches which passed between the plaintiff and the defendant’s agent, showed that a contract was made between the parties. But it was not one for any definite or indefinite number of nights; it was, on the contrary, only for the evening of the seventh of May, or, according to the complaint, for some occasion within a reasonable time after the receipt of the manuscript and scene plots. In either case, but one production, or exhibition, of the play was agreed upon. And that was all that the plaintiff could positively require from the defendant for the purpose of performing the agreement made. He undoubtedly expected, and that may have been the anticipation of the defendant’s agent, that the play would be continued after the first exhibition of it. But there is a very marked distinction between a mere expectation and the obligation imposed by a contract. The former is contingent and uncertain, while the latter is fixed and definite. The defendant did not agree to produce it on more than one night, and the plaintiff insisted upon no such agreement. That was left optional—dependent upon the success of the first production and the subsequent assent of the parties. If the play had been once produced, this court, nor no other, could say that the defendant would have been inclined to produce it again. That remained uncertain, and the parties had designedly left it in that condition by the terms they used in making their agreement. Under this state of the case, the plaintiff simply lost, by the failure to produce the play, what the defendant agreed to pay for what he had bound himself to do; and that was the price of one production. He may have lost more, but that cannot be affirmed with anything like a reasonable degree of certainty. The probability that he did, was too slight to render it the proper subject of compensation by way of damages. The law allows their recovery only when they appear to be the necessary, as well as natural results of the act complained of, and they cannot be allowed as the consequences off the omission of an act which the party was at liberty to perform or not, by the terms used in making the agreement. That was the state in which the proof left the present case, as to all the nights beyond the first. The defendant was not asked to bind himself beyond the one night expressly mentioned, and neither his agent nor himself used any terms from which it could be inferred that it was intended that he should enter into any such obligation. The court should therefore have charged, as the defendant requested, that the damages were limited to the sum of twenty dollars. The exception to the refusal to do so was well taken. The judgment and order should be reversed,- and a new trial ordered, with costs to abide the event.

Brady, J., concurred.

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

      2 Greenleaf on Ev. (5th ed.), § 254; Hamilton v. McPherson, 28 N. Y., 72 Newell v. Wheeler, 4 Robertson, 253.


text:
    DANIEL COLLINS, Respondent, v. THE MAYOR, Etc., OF THE CITY OF NEW YORK, Appellant.

      Section 11, chap. 876, Lams of 1869 — “newoffice" within meaning of—power of common council to appoint clerk—how officers distinguished from employes.

    On tlie 7th of February, 1870, the common council of the city of New York passed a resolution authorizing the clerk of the common council to appoint an eighth assistant clerk of the board of aldermen. The plaintiff was appointed to that position, and brought this action to recover four months’ salary.

      B.eld, that the plaintiff was an officer, but that the office to which he was appointed was not a new one within the meaning of section 11, chapter 876, Laws of 1869, prohibiting the common council from creating any new office.
    Sermhle, that the true test to distinguish officers from simple servants or employes, is in the obligation to take the oath prescribed by law.
    Appeal from a judgment in favor of the plaintiff, entered on a verdict directed by the court.

      D. J. Dean, for the appellants.

      W. G. Trull, for the respondent.
   Davis, P. J.:

This action is brought by the plaintiff to recover his salary, as eighth assistant clerk of the board of aldermen, for the months of September, October, November, December, 1871, and part of January, 1872.

On the 7th day of February, 1870, the common council adopted, and the mayor, on the same day, approved, the following resolution : “ Desol/oed, That the clerk of the common council be, and he is hereby authorized and empowered to appoint an additional clerk in his office, to be denominated the eighth assistant clerk of the board of aldermen, who shall perform such duties as may be assigned him by the said clerk of the common council: the salary of said clerk to be $2,000 per annum, payable monthly.”

Hnder this resolution the clerk of the common council appointed the plaintiff, who took the official oath, and entered upon the duties of his office, and continued to discharge them till the 16th day of January, 1872. His salary for the last four and a half months had not been paid. The only question made, is, whether the common council had power to authorize the appointment of an additional cleric. The question arises upon section 11 of chapter 876 of the Laws of 1869, which contains the following provision: “And the common council, or any head of department of the city of Hew York, are hereby prohibited from creating any new office,” * * * “ except as provided by acts passed by the legislature.” We see no reason to doubt that the plaintiff was an officer. His duties were those pertaining to an office. He was required by ordinance to take, and did take, the official oath; and he was amenable to all the penalties of statute for neglect or violation of official duties. Probably the true test to distinguish officers from simple servants or employes, is in the obligation to take the oath prescribed by law. But we are of opinion that his appointment was not the creation of a “ new office,” within the meaning of the prohibition contained in the act of 1869. The office of clerk and of deputy clerk, was an existing and old one. The number of deputies was not prescribed by law. It might be more or less, according to the exigencies of business, and was to be regulated by ordinances of the common council, which must be presumed to be passed with a view to such exigencies. The legislature, by the charter of 1857, gave authority to. the clerk of each board of the common council, to appoint and remove deputy clerks in his departments, to the number authorized by ordinance. But, if the appointment of an additional deputy clerk, when authorized by ordinance, would be in a certain sense “ creating a new office,” it seems to us the exception in the act of 1869, prevents our regarding it as falling within the prohibition. The restriction is upon the creation of a new office, “ except as provided by acts passed by the legislature.” The act of 1857, above referred to, empowered the clerk to appoint deputies to the number authorized by ordinance of the common council, and the exceptipn was probably inserted to prevent the prohibition attaching to restrain the addition of such deputies as the law expressly authorized, when the common council should adjudge such addition to be necessary. Besides, the appointment of plaintiff seems to be authorized under the charter of 1870. Section 19 of that charter provides, that the clerk of each board shall appoint or remove, at his pleasure, deputy clerks in his department, not to exceed the number now authorized by law or ordinance.” The ordinance authorizing the appointment of an eighth assistant, was passed February 7, 1870. The charter was passed April 5,1870. The plaintiff was appointed June45,1870. Unless we regard 'the ordinance of February 7, 1870, authorizing the appointment of an additional assistant, as an absolute nullity, the appointment of plaintiff came within the number which the clerk could appoint under the charter of 1870.

We think the judgment should be affirmed.

Daniels and Brady, JJ., concurred.

Judgment affirmed.

       Laws of 1857, chapter 446, section 36.


text:
    THE BOARD OF SUPERVISORS OF THE COUNTY OF NEW YORK, Respondent, v. WILLIAM M. TWEED, Appellant.

      Code, sec. 121 — substitution of parties plaintiff—new answer — when leme to serve, not allowed.

    Under chapter 304, Laws of 1874, providing for the consolidation of the city and county of New York, an order substituting the consolidated corporation for the board of supervisors, in an action commenced by them and then at issue, is proper; and, as the complaint remains precisely the same after as before the order, the defendant is not entitled to serve a new answer, and permission so to do is properly refused.
    Appeal from an order continuing this action in the name of the Mayor, Aldermen and Commonalty of the city of New York, and substituting them as plaintiffs.

      David Dudley Field, Elihu Moot, W. O. Bartlett, Dudley Field, Wm. Fullerton, Edward Bacon, for the appellant.

      E. Delafieldj Smith and Wheeler H. Peckham, for the respondent.
   Daniels, J.:

This action was commenced by the board of supervisors of the county of New York, to recover moneys alleged to have been fraudulently and corruptly received and applied to his own use by the defendant, as a public officer of the county. The moneys were claimed to have been the property of the county, for a recovery of which it was legally entitled to maintain the action. After an issue of fact was joined in it by the service of the defendant’s answer, and while it continued to be undetermined, an act was passed consolidating the city and county of blew York for the purposes of local administration and government. By this act the consolidated corporations were afterward to be known as the mayor, aldermen and commonalty of the city of blew York, and the rights, property, interests, claims and demands of the county, and of its board of supervisors, were vested in, and declared afterward to belong to, the consolidated corporation. This act went into effect on the 30th of April, 1874, and, by its terms, it transferred the cause of action set forth in the complaint in this suit, to the newly formed corporation. It was a right, claim or demand within the appropriate signification of those words, as they were embodied in the law. In consequence of this change and transfer, the motion appears to have been made which resulted in the order appealed from. Its obvious purposé was to place the action from that time in the name of the body that, by the act, had succeeded in its title, the preceding owmer of the demand, and have the real party in interest before the court as plaintiff.

The proceeding was in all respects a proper one, and provided for by the act regulating and governing to a very great extent the civil practice of courts of justice. By that act, when any other transfer of the interest in an action (which does not abate by the death of a party) than that occasioned by death, marriage or other disability takes place, the court in which it may be pending, may allow it to be continued in the name of the original party, or may allow the person to whom the transfer may be made to be substituted in the action, This provision very plainly includes the present case. For the demand relied upon as the cause of action, would not abate by the death of a plaintiff, even if it had been a natural person. And the act of 1874, by force of its provisions, transferred it to the consolidated corporate body. The motion was made within the time prescribed for that purpose by the section of the Code already referred to, and no good reason appears why the order should not have been made.

It is strenuously insisted by the learned counsel for the defendant, that the court ought to have permitted him to sqrve a further answer. But there was nothing in the change made by the order, requiring that to be done, or even indicating its propriety in any respect. It did not change the charges made against the defendant, as the foundation of the right to recover. The complaint remained precisely the same after the order as it was before. And that had been met by the answer previously served to it, by such defenses as the defendant considered existed against the charges it contained. By the order, the newly formed body corporate was, from that time, made the plaintiff in the action, and it was placed in that relation to it, with no other or different rights than those previously existing in favor of the board of supervisors. It, at most, succeeded to such rights, and nothing whatever more than that. And there could be nothing in such a change, rendering any further answer on the part of the defendant necessary.

Upon making it, when that is properly done by motion, the Code providing for it contemplates no change in the pleadings if the action be already at issue. It merely provides for a simple proceeding, by means of which the succeeding party may take and prosecute the action from the point where the preceding party left it. The change gave the defendant no absolute right to set up any further defense. If the answer served in the case, was inadequate in any respect, the mode of supplying its defect was by motion on the defendant’s behalf, as long as the affidavit used to oppose the motion failed to present any case for that purpose. It was not enough to entitle the defendant to such-relief, that his attorney believed that leave should be given to serve an answer to the complaint as it was proposed to be amended, and that was all that was stated on this subject. The statement was altogether insufficient, for it showed no necessity for any amendment whatever. And besides that, it was entirely erroneous, for the complaint was in no respect amended. All that was done by the order was, to substitute the succeeding corporation from that time, and providing for the subsequent prosecution of the action in its name.

Upon the argument of this appeal, it was claimed that further pleadings by way of defense were required, to enable the defendant to contest the right of the newly formed corporation to succeed to the rights and claims of the board of supervisors of the county. But that very clearly is an erroneous view of the case. For that position must depend upon the effect to be given to the act providing for and making the consolidation, and no pleading on the part of the defendant can be required for its proper presentation. If the act can be shown to be constitutionally or otherwise invalid or inoperative, that can be determined, as the case now stands, under the order by oral objections taken upon the trial. No answer can be necessary for that purpose.

The objection that the new corporation has not been bound by the change made, is entirely untenable. The notice of motion for it was subscribed by the corporation counsel and attorney for the plaintiff, then in the case, and that sufficiently exhibited its consent to be made a party to the action. Besides that, the substituted plaintiff appeared on the argument, and objected to a reversal of the order.

The order was right, and it should be affirmed, with ten dollars costs, besides disbursements.

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

Order affirmed with ten dollars costs, besides disbursements.

       Laws of 1874, chap. 304, § 1.

       Code, § 121.

       3 R. S. (5th ed.), 746, §§ 1,2.


text:
    JOHN L. BROWN, Respondent, v. THE MAYOR, Etc., OF THE CITY OF NEW YORK, Appellant.

      Statute a/uihority —failwre to comply with terms of, may he inquired into collaterally — chop. 580, Laws of 1872.
    A failure to comply with statutory requirements in any essential respect, makes any ultimate determination' had in proceedings thereunder a nullity. Such want of jurisdiction may he inquired into collaterally.
    Under an act of the legislature, commissioners were appointed to examine, after notice to the comptroller of the city of New York, into the facts and circumstances, relating to certain (Contracts with the city, not entered into in the manner provided by law, and if satisfied that no fraud was perpetrated in relation to the contracts, or the performance thereof, they were to make a certificate to that effect, from which time the contracts were to become valid and binding on the defendant; and the certificate was declared final and conclusive as to all questions of fraud, in relation to such contracts and the performance thereof. Held, in an action brought to recover on a contract, for which such a certificate had been given, that evidence, offered to show that the contract had never been presented to the commissioners nor investigated by them, that there had been no investigation before them as to the performance of the work, and that the work had not been performed, was improperly excluded.
    Appeal from a judgment, entered on a referee’s report.

      James M. Smith, for the appellant.

      John E. Eevelin, for the respondent.
   Daniels, J.:

The recovery in this action was for work done, and materials supplied, in performing a contract, not entered into in the manner provided for by certain laws relating to the city of New York, and for that reason incapable of being enforced by legal proceedings. In 1872, an act was passed for the relief of claimants under contracts defectively entered into for city improvements, which included the one made with the plaintiff. It provided that certain commissioners named in it, upon notice served, within thirty days after the passage of the act, on the comptroller, should examine into the facts and circumstances relating to such contracts, and also into the work performed under the same. That they should give an opportunity for a hearing to the parties interested, serving such notice, and to the comptroller of the city of New York; and within ninety days after the passage of the act, should certify their determination on the contract submitted to their examination. If they became satisfied that no fraud was perpetrated in relation to the contract, or the performance thereof, then they were required to make a certificate to that effect; and from that time the contract became valid and binding upon the defendant; and the certificate made, was declared final and conclusive as to all questions of fraud in relation to such contract and the performance thereof. The proceeding provided for, was in the nature of a trial, on which it was essential that an opportunity for a hearing should be given, in order to render the certificate of the commissioners binding and obligatory. That was expressly declared by the second section of the act; and it was only by conforming to those requirements, that authority was given to the commissioners to make a decision. Without an opportunity for a hearing and an actual investigation by them, they could not conclude either party to the proceeding provided for. It was statutory and special in its nature, requiring a substantial compliance with the course prescribed to confer jurisdiction.

That is the well settled rule as to all purely statutory proceedings, as this was. And, if a compliance with the requirements appears to have been omitted in any essential respect, the determination ultimately made is a nullity. And this want of jurisdiction may be inquired into in a collateral proceeding,

The defendant’s answer avers that no opportunity had been given to the comptroller to be heard in relation to the certificate which the commissioners made upon the plaintiff’s contract, and that he was not heard either in person or by counsel. And it further alleged that they adjourned sme die, without having examined into the facts and circumstances relating to the plaintiff’s contract, and without having heard the plaintiff or the comptroller in relation to it, and without having passed upon it.

After the plaintiff rested his case, consisting in part of proof of the contract and the certificate of the commissioners upon it, the defendant offered to show by Mr. Strahan, the counsel for the city, that the contract was never presented to the commissioners, and that it was never investigated by them. This was excluded, on the plaintiff’s objection, and the defendant excepted. The witness was also asked whether there was any investigation before the commissioners, as to the performance of the work, or the execution of the contract, or as to whether any fraud had been perpetrated in reference to or in making it. That, upon like objection, was excluded, and the defendant excepted. These rulings cannot be sustained. If the facts were as the defendant proposed to show them, then the certificate was a nullity; for it was made without authority. The commissioners had no power, under the statute, to make it, if the contract was neither presented to nor investigated by them. Their certificate was but presumptive evidence, at most, and the defendant offered by proof to "overcome the presumption, by showing that the facts stated in it were not true. Before they could lawfully make it, they were required to examine into the facts and circumstances relating to the contract. That, they certified they had done; but the substance of the offer made, was to show that to be untrue. By the disposition made of other similar offers, the certificate seems to have been relied upon as conclusive. And so it would have been if the commissioners acquired jurisdiction to make it, in the manner prescribed by the statute. But if they did not, it was without effect, and the contract continued to be invalid.

An offer was also made to show that the plaintiff had not done the work as it was required by the contract. That was objected' to, and the evidence excluded, and the defendant in like manner

V

excepted. The certificate seems to be relied upon in support of the exclusion of that evidence; but it cannot be attended with that effect. Bor, when made as the result of the investigation prescribed by the statute, it simply rendered the contract binding, and the decision was made final and conclusive, only as to all questions of fraud in relation to the contract and the performance of it. It was not made conclusive as to the fact of performance, but only that there was no fraud in the performance, so far as that might have extended. The provision in the contract on this subject was, that the plaintiff should not be entitled to demand or receive payment for any portion of the work or material, until the same should be fully completed in the manner set forth in the agreement, and such completion be duly certified by the surveyor and inspector in charge of the work, nor until each and every stipulation previously mentioned should be complied with, and the work completed to the satisfaction of the commissioner of public works and accepted by him. This clause in the contract required not'only that the certificate of the inspector and surveyor should be procured, that the work was performed as the contract required it to be done, but, in addition to that, that it should be, as a matter of fact, fully completed in the manner set forth in the agreement. And as the certificate or decision of the commissioners was not rendered conclusive on this subject, and the inquiry was not excluded on the effect given to the certificate of the surveyor and inspector, and the acceptance of the work by the commissioner of public works, the evidence which the defendant offered should have been received. It ^as error to exclude this proof, as well as that offered to show that the commissioners have made their certificate without conforming to what the statute required from.them in order to give them jurisdiction to make it at all.

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

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

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

      Vol. 2, Laws of 1873, 1412, 1413, §§ 1, 2.

       Bloom v. Burdick, 1 Hill, 181; Stone v. Miller, 63 Barb., 431, 442; Miller v. Brinkerhoff, 4 Denio, 118; Staples v. Fairchild, 3 Com., 41, 46; People v. Soper, 3 Seld., 428,431.

       Chemung Canal Bank v. Judson, 4 Seld., 354.

       Id, § 2.