text:
    William Haywood, as Administrator, Resp’t, v. John J. Townsend et al., App’lts.

      (Supreme Court, Appellate Division, Third Department,

      Filed April 14, 1896.)

    1. Evidence—Lost documents.
    Where a bond, given by an executor to secure the faithful performance of his duty as trustee under a will, has been destroyed, a verified copy of the bond, shown to have been made after the date of the execution of the original, is admissible in evidence to prove its terms.
    2. Same—Execution—Infancy.
    Where, in an action against sureties on a bond, one of the defendants pleaded that he was under age when he executed the bond, on March 15, 1865, but testified that he was fifty years old March 4, 1894, and other testimony tends to show that he became of age March 4, 1864, the evidence justifies a finding that he was of age when he signed the bond.
    3. Executors—Sureties—Liability.
    Where, in an action against, sureties on an executor’s bond, given to secure the faithful performance of his duty as trustee, it is shown that the sureties, after they executed the bond, delivered it to the principal, that the latter made a copy thereof, which was verified by affidavit, delivered such copy to the plaintiff and thereupon received the trust property, that instead of filing the original the executor retained it in his possession, and that after several years it was destroyed by one of the sureties, the execution and delivery of the bond to the principal were, so far as the sureties were concerned, sufficient to fix their liability thereunder.
    4. Same—Failure—File.
    The failure of an executor to file the bond with the surrogate does not affect the liability of the surety.
    5. Same.
    When sureties go upon the bond of a testamentary trustee, they make themselves privy to all proceedings against the principal, and, when he, without fraud or collusion, is concluded, they are also concluded.
    Appeal from a judgment in favor of plaintiff!
    W. J. Palmer, for app’lts; F. L. Michael, for resp’fc
   HERRICK, J.

In the year 1863 one Cynthia Lane made her last will and testament,' whereby, among other things, she gave and bequeathed to Cynthia J. Haywood the sum of $500, and to Alice Haywood the sum of $300, to be paid to them by her executor on their arriving at full age, but until that time to be kept at interest for their benefit, and further directed that said executor should “execute good and'sufficient surety, for the benefit of said children, before he shall enter upon the discharge of his trust, conditioned for the safe investment of said money, and the payment thereof to said children, with interest, on their arriving at full age.” Robert M. Townsend was designated by her as the executor of said last will and testament. Said Cynthia Lane died on or about the 25th day of June, 1864, and letters testamentary were issued to Robert M. Townsend on the 12th day of December, 1864. On the 15th day of March, 1865, Robert M. Townsend, principal, and the defendants, John J. Townsend and Enoch L. Townsend, as sureties, executed a bond, under their hands and seals, conditioned that the said_Robert M. Townsend should well and truly discharge the duties of his trust, and keep the said legacies invested for, and pay the same to, Cynthia J. and Alice.Haywood, their attorneys, administrators, executors or assigns, with interest, on their becoming of age, according to the requirements of the said last will and testament. This bond appears to have remained with Robert M. Townsend, or, if it was ever filed in the surrogate’s office, was subsequently taken therefrom; for some two or three years after-wards it was in the possession of Robert M. Townsend, and was taken from him by the defendant John J. Townsend, and burned. After the execution of the bond, and on the 16th day of March, 1865, the said Robert M. Townsend delivered a copy of it to the plaintiff, attached to which was an affidavit stating that the same was „a copy of the original bond filed in the office of the surrogate of Otsego county, and received from the plaintiff the sum of $800 upon said trust. The said Robert M. Townsend has not paid over the full amount of said legacies, as required under the will, and as provided by his bond. The legatee Cynthia J. Miller died intestate in the year 1878, and the plaintiff was appointed administrator of her estate. In 1894 an accounting by the said Robert M. Townsend, as trustee, was had, upon the petition of the plaintiff, as administrator of the estate of Cynthia J. Miller, before the surrogate of Otsego county, on the 3d day of April, 1894; and a decree was made by the surrogate whereby it was adjudged that the said trustee, Robert M. Townsend, was indebted to the plaintiff, as administrator, on account of the said legacy and interest belonging to the estate of Cynthia J. Miller, in the sum of $2,324.80. An execution therefor has been issued, and returned unsatisfied to the amount of $1,755.09.

Upon the trial, various questions were raised — one, as to the ¡reception of the copy of the bond in evidence. The fact that it was a copy was testified to by Robert M. Townsend^ At one point in his testimony, he spoke of it as a copy of a copy; but, taking his whole testimony together, I think it is fairly to be assumed ¡that the paper received in evidence was not a copy of a copy, but a copy of the original bond, and it was not received in evidence ■until it was shown by the defendant John J. Townsend that he himself had destroyed the original bond by burning it.

The defendant Enoch L. Townsend, for a defense, asserted that at the time he executed the bond in question he was' under twenty-one years of age. The bond was executed March 15, 1865. Enoch cannot tell what year he was born in. Upon his cross-examination, on the 18th of February, 1895, he testified:

“ I was’fifty years old last March. I didn’t say what year I was born in. It would be 1845 — the 4th day-of March. I became twenty-one years of age the 4th day of March, 1865. It would be 1844 I was born in. Well, I was there, but I can’t swear just the year. It might have been in 1843.”

His brother John J. Townsend testified that Enoch became of age March 4, 1865. Upon this testimony the trial judge was warranted in finding that the defendant Enoch was over twenty-one years of age at the time of the execution of the bond.

The most serious objection made is that the bond was never delivered. We are not cited to any authority as to what is necessary to a delivery, in a case such as this. "Delivery is always a-, question of intention, which must be that the instrument shall be operative. Am. & Eng. Enc. Law, 458. The same .strict rules-do not apply to bonds and undertakings as to deeds. The defendants, it appears from the testimony, knew what the bond was-for; that, without it, the trustee, Robert M. Townsend, could not. Require possession of the money that was left by the testatrix for the benefit of the legatees. They signed and executed the bond, for the purpose of enabling him to get that money. When they delivered it to him, and left it with him, after having executed it, it was, so far as any act of theirs necessary to be done to fix then-liability upon the bond, complete. Their obligation was something more than that of an indorser upon a 'note,' or a guarantor of the payment of money. They became responsible for the fidelity of the trustee—his integrity. Douglass v. Ferris, 63 Hun, 413; 44 St. Rep. 710. Before he could commence the duties of' his trust, his faithfulness must be guarantied. When they placed in his hands the bond signed by them, their act was finished. They had guarantied his fidelity, and become responsible for any breach. So far as they were concerned, thé delivery was complete. They had delivered the instrument to him with the intention that their guaranty should be operative; that it should enable him to enter upon the duties of his trust. At the time he delivered a sworn copy of it, as a voucher of his authority and right, to receive the trust fund, the bond executed by the defendants was in existence; and its subsequent destruction after the trustee, upon the faith of its execution and existence, had secured the-legacies, cannot alter the liability of the defendants. If at that time the plaintiff, instead of John J. Townsend, had secured possession of the bond, and kept it until this time, instead of burning it, can there be any question but that he could recover upon it? Does the fact that after it had partially fulfilled its office, but while its most important function remained unperformed, it was-taken and destroyed by one of its signers, change the situation, except as to the matter of proof as to whether such an instrument ever existed ? It seems to me not. It is claimed by both parties that-the bond should have been filed in the surrogate’s office. I assume that to be the law of the case. That was, then, the only additional delivery that the bond was capable of. It could not be given to the infant legatees, or to their guardians, or to any other persons for them. It was to be left with the surrogate. It was-not a thing necessary to be done by the sureties. The requirement that it should be filed with the surrogate was for the benefit of the legatees, not for the benefit of the principal upon the bond, or his sureties; and the fact that it was not filed—that their principal did not do his duty in that respect — cannot be asserted by them as a defense 'to the bond. Their signing the bond was riot conditional upon its being filed.. As above stated, the requirement that "it should be filed was not for their benefit. It has been held that the requirement that a bond should be approved by the-surrogate is not one for the benefit of the sureties, but of the creditors and legatees, and that the sureties cannot raise the objection that it has not been so approved; that such an objection is in the nature of an objection to their own act, or, rather, omission to act. Mundorff v. Wangler, 44 N. Y. Supr. Ct., 495-505. Having, by signing the bond and giving it to the principal, placed it in the power of the principal to secure the money, and he having done so, it has, so far as the principal and sureties are concerned, served its purpose; and the defendants should not be permitted to repudiate the bond to the- detriment of the parties it was apparently given to secure. Russell v. Freer, 56 N. Y. 67. The defendants were bound by the judgment and decree of the surrogate as to the amount due trom Robert M. Townsend, the trustee, to the plaintiff. When sureties go upon the bond of a testamentary trustee, they make themselves privy to all proceedings against the principal; and when he, without fraud or collusion, is concluded, they are concluded, also. Gerould v. Wilson, 81 N. Y. 573-583; Douglass v. Ferris, 138 id. 193-201; 52 St. Rep. 138.

The judgment appealed from should be affirmed, with costs.

All concur,


source: Caselaw Access Project

author: O’DWYER, J.

license: Public Domain

text:
    Fillmore Riker, Resp’t, v. James L. Curtis, App’lt.

      (New York City Court, General Term,

      Filed March 16, 1896.)

    Appeal—Conflicting evidence,
    A verdict, upon conflicting evidence, will not be disturbed on appeal.
    Appeal from a "judgment on a verdict in favor of plaintiff, and from an order denying a motion for a new trial.
    E. A. S. Man, for app’lt; Edgar A Turrell, for resp’t."
   O’DWYER, J.

The action is brought to recover the amount of two alleged loans to the defendant, and the claim is resisted upon the ground that the moneys in question were not received by the defendant as a loan, but in payment for the sale of certain claim; and further, that, if the transaction was a loan, then the claim is barred by the statute of limitations. The evidence was conflicting, and the learned court, in a charge as favorable to the defendant as he could ask, submitted both questions to the jury for determination. There is evidence to sustain their verdict for the plaintiff, and in our opinion, the evidence is preponderatingly in favor of the finding of the jury.

There are no exceptions that require discussion, and the judgment and order appealed from should be affirmed, with costs.,

All concur.


author: PEE CURIAM.

text:
    Troy Carriage Works, App’lt, v. Herbert H. Muxlow, Resp’t.

      (New York City Court, General Term,

      Filed January 28, 1896.)

    Replevin—Bond—Justification—Adjournment.
    Under sections 580, 1705 of the Code, an adjournment, in the examination of secureties on a bond in replevin, may be for a longer time than to the next judicial day for the purpose of procuring the attendance of sureties or the substitution of new sureties.____
    Appeal from an order denying a motion for an order directing the sheriff to deliver to plaintiff the chattel replevied, because de,fendant’s sureties on his bond, given under section 1704 of the Code, to reclaim the chattel, has not justified as required by law.
    On October 29, 1895, after examination of one of defendant’s sureties, further examination was adjourned by consent of parties, to-November 7, 1895, at 10 a. m„ On.November 7, 1895, defendant’s attorney gave notice of his engagement in court, and asked that the matter be held till 11 a. m. Whereupon the court made the following order: “ Defendant granted until November 9th, 10 a. m., to give new bond, and to have sureties present for justification.” Whereupon plaintiff made his motion that the sheriff be directed to deliver to him the replevied article, claiming that the court was without authority to make the order of November 7th, and that the adjournment could not be made to a later date than November 8th, the next judicial day; it being provided by Code Civ. Proc. § 1705, that “ the provisions 'regulating the justification of bail contained in article third of title first of chapter seventh of this act, govern, except as otherwise expressly prescribed in this article, with respect to the notice of justification of the sureties, the officer before whom they must justify, the substitution of new sureties or a new undertaking, the examination and' qualifications of the sureties and the allowance'of the undertaking; ” and it being provided by Code Civ. Proc. § 580, that “ for the purpose of justification, each of the bail must attend before the judge at the time and place mentioned in the notice, and be examined on oath, on the part of the plaintiff, touching his sufficiency, in such manner as the judge, in his discretion, thinks proper. The judge may, in his discretion, adjourn the examination from day to day, until it is completed; but such an adjournment must always be to the next judicial day, unless 'by consent of the parties.”
    Thomson & Allen (James J. Allen, of counsel), for app’lt; W. H. Newman, for resp’t.
   PEE CURIAM.

— The order appealed from is affirmed, with costs, upon the opinion of the special terrp justice who made said order. «

The following opinion was rendered at special term by Mr. J us tico BOTTY:

“The proceedings were, adjourned, not for the continuance of the examination of any surety which had been commenced, but to enable the defendant to procure the attendance of his sureties, or substitute new sureties and have them present for examination. Motion is therefore denied, but the new sureties must attend for justification on two days’ notice after service of notice of demand for such justification by plaintiff’s attorney.”


author: PER CURIAM.

text:
    Margaret O’Malley, Resp’t, v. Metropolitan Street Railway Company, App’lt.

      (Supreme Court, Appellate Division, Second Department,

      Filed April 7, 1896.)

    1. Negligence—Street railway company.
    The evidence, in this case, was held sufficient to sustain a finding that the driver of the car was negligent.
    2. Same—Pleading.
    A complaint, which alleges that defendant was negligent in the management and control of the car and allowed the car and wagon to collide, sufficiently pleads the negligence of the defendant in failing to delay until the wagon crossed the track without danger of being forced back thereon.
    3. Same—Question of fact. •
    Where a wagon is struck while turning out to allow a car, which was approaching from the rear, to pass, there is sufficient evidence of negligence to go to jury.
    Appeal from a judgment for plaintiff entered on a verdict, and from an order denying a motion for a new trial.
    J. Bronson Ker, for app’lt; Charles J. Patterson, for resp’t
   PER CURIAM.

The evidence established that defendant’s car, which was being driven along Madison street, in the city of Hew York, was preceded by a horse attached to a light wagon driven.,in the street-car tracks. The wagon was eleven feet in length,' had a box and tail board about eight inches high, and was loaded with a few boards thirteen feet in length, which rested upon the tail board, and projected beyond the wagon about two feet. As the wagon.came to the junction of Catherine and Madison streets it turned from the track to pass into the former street. The car was at this time close upon the wagon. Catherine street is quite narrow, being but twenty-two feet and eight inches in width between the curbs. As the wagon turned out, it was confronted with practically this situation : There was a beer truck backed up against the easterly side of Catherine street-on the north corner of Madison street. There was an empty truck on the northwest corner of Catherine and Madison. Driving south on Catherine, in the center of the street, was a large two-horse truck, and to the right of this there was an express wagon, drawn by one horse. Both vehicles were moving, and the truck quite rapidly. The course taken by it would cross the path of the wagon as it turned from the car track. The grade on Catherine street was quite steep, the truck on the down grade and the wagon on the rise. The driver of the car was in a position to observe these conditions, and did observe the relative position of the truck and wagon. Evidence was given upon the part of the plaintiff tending to establish that as the wagon turned from the track the driver urged the horse attached to the car into a faster movement, causing the forward part of the car to come in contact with the projecting boards on the wagon with sufficient force to break the window and stanchion of the car, bringing the boards in contact with the person of plaintiff, who was a passenger upon the car, and inflicting the injury which is the basis of this action. In this view of the evidence the case is brought within the decision in Witte v. B. C. Railway Co., 4 Misc. Rep. 286; 53 St. Rep. 334; affirmed on appeal, 143 N. Y. 667; 63 St. Rep. 867, which supported a judgment for the plaintiff. Proof was also given tending to establish that the wagon had entirely left the track before the car attempted to pass, and that it suddenly backed up, bringing the boards in contract with the car. Upon this point 'the court charged, at the request of plaintiff: “ That, even if the tail of the boards had gone beyond the track, and beyond the line of the car, if the situation thus thrown open to his observation was such as to advise him that there was danger of its coming back and striking against the car, then they could find the car driver guilty of negligence in going on.” This charge is attacked as being without evidence to support it in fact, and as not being within the theory of negligence which plaintiff relied on when she brought her action or proved upon the trial. As to the first proposition, wela/e seen what the conditions were which confronted the driver of the car, and which he knew, or ought to have known, when he attempted to pass the wagon. It is quite apparent that he drove his car by immediately the wagon had left the track, if he did not before the boards cleared the car, as they in fact came in contact with the stanchion between the first and second windows of the car, thus showing that if the wagon backed it was done immediately the car attempted the passage. In this respect we are confronted with practically the same question that confronted the court in Seidlinger v. Railroad Co., 28 Hun, 503, where the court sustained a recovery, and it was affirmed on appeal (97 N. Y. 642). Upon the other ground defendant relies upon the case of Marks v. Railroad Co., 146 N. Y. 181; 66 St. Rep. 233. This case was disposed of by'the general term upon a ground of negligence not alleged in the complaint or relied upon at the trial, and which were not submitted to the jury for their consideration. The court ruled that this could not be upheld, as it was obviously improper to sustain recovery upon an independent ground which the jury where not permitted to consider; that whatever ground there might have been for submitting the case in this respect, considered by the. general term, it was not done, in consequence of which the verdict could not have proceeded from any such view. The case before us is essentially different. The allegation of the complaint is that the defendant was negligent and careless in the management and control of the car, and allowed the car and wagon to collide. As we have seen, the proof showed that a due regard' for existing circumstances called upon the driver to consider the liability of the wagon to be cut ■off in its passage on the narrow street, and forced back down the grade, which would inevitably bring it in contact with the car. A pause of a moment would have resolved this question" but the ■driver continued on regardless of the situation.' The point was therefore properly submitted to and passed upon by the jury, and the verdict may have proceeded therefrom. The conflict of evidence in the present case is not different or greater than has been presented many times incases of this class, and the courts have tmiformly declined to interfere with the verdict upon that ground. If plaintiff’s witnesses wete to be believed—and there was an abundance of ■them—upon the point, the injuries received were serious and permanent in their character. The jury were authorized to accept that view, and, so regarding it, the amount of the verdict was not excessive. We find no error.

The judgment appealed from should therefore be affirmed, with -costs.


author: CULLEN, J.

text:
    Edward H. Moubray, App’lt, v. William J. Moubray et al., Resp’ts.

      (Supreme Court, Appellate Division, Second Department,

      Filed April 7, 1896.)

    1. Equity—Unconscionable claim.
    Where a claim is concededly wholly inequitable, a court of equity will • give no relief to the claimant, no matter what his legal rights may be.
    '3. Estoppel—Equitable.
    Where a partner in possession of all the firm property conveys part of it by absolute deed to a third person to secure his partner’s interest, without the latter’s knowledge, and subsequently informs his co-partner, when the latter demands his share of the firm property, that he has conveyed it to such third person for him, and the co-partner in a settlement accepts the property so conveyed and releases all claims against his partner, such deed, from the time such settlement is made, operates as an absolute conveyance, or, at least, estops the grantor from asserting to the'contrary.
    Appeal from a judgment in favor of defendants.
    Edward M. Shepard, for app’lt; Josiah T. Marean, for resp’ts.
   CULLEN, J.

The plaintiff and the defendant William are brothers, and the defendant Susanna is their mother. The plaintiff is a carpenter and builder by trade. The defendant William has been a marine engineer. About the year 1878-an inheritance in Ireland fell to the defendant William. William, being unable to give the matter his personal attention, sent the plaintiff to Ireland to receive and convert the property. The inheritance realized about $14,000. There is a dispute between the parties whether William gave the plaintiff one-half of the amount recovered or not, but the question is not material in the disposition of this case. The whole proceeds of the property in Ireland were left in the hands of the plaintiff, who; on his return to this country, with such proceeds as capital, bought and sold lands, and erected buildings. In 1888 and 1890 the plaintiff conveyed the three plots of land, the subject of this action, to his mother Susanna. As he testifies, he told her it was as security for hi® brother William for the money he owed him, and also as support, for his mother in case of the plaintiff’s death. In 1892 the defendant William instituted an action against the plaintiff, claiming that he and Edward were partners in the business of buying lots, building houses, and selling the same, and that the various, pieces of property which then stood in the plaintiff’s name were partnership property. He prayed, as relief, that ah account be had of the partnership transactions, that the property be sold, and out of the proceeds he be paid the capital originally contributed by him, and also half of the, profits. The plaintiff appeared in that action. Before trial the suit was compromised and settled between the parties. The testimony of William’s lawyer in that-action, and also that of the attorney and that of ,the counsel who appeared for the present plaintiff, Edward, is to the effect that, in-the settlement and division of the property, the property in dispute, which had been conveyed to Susanna, was taken by William at a valuation, as a part of his share in the distribution of the partnership assets. At the time of the settlement William executed to Edward a general release, and afterwards the defendant Susanna; conveyed to William the premises previously conveyed to her by Edward. ' The plaintiff did not, on the trial, contradict the evidence, as to the settlement, given both by his own attorneys and' by the attorney of William.

The claim of the plaintiff’s counsel, as I understand it, is that, the conveyance by the plaintiff to his mother, being a security for the debt of William, constituted only a mortgage, and that, being: a mortgage, it was merely a lien on the premises conveyed, the title to which remained in the plaintiff; that the subsequent settlement between the parties could not operate to pass the plaintiff’s title in the premises to the defendant William, because such agreement was wholly by parol, and that there was nothing in the agreement, or the acts of the parties thereunder, that would take it out of the-statute of frauds, and the further claim that the release executed by William discharged the mortgage created by plaintiff’s conveyance to his mother Susanna. Conceding, for the moment, this* whole claim, both on the facts and the law, we think there is a. complete answer to the plaintiff’s right to maintain this action. Assuming that the legal title to'the property remains in the plaintiff, despite his settlement with William, his1 claim is concededly wholly inequitable, and a* court of equity would give him no relief,, no matter his legal rights may be. The foundation stone of equity-jurisprudence is that who seeks equity must do equity. Therefore, in* this case, equity would do nothing for the plaintiff, but leave him to enforce his rights as best he might.

But, on* the facts, we think that the plaintiff has no title to the lands in controversy. He conveyed the premises to his mother, as security for his debt to William. That conveyance, as the transaction stood at the time, may have constituted nothing more than a. mortgage. The plaintiff testifies that the transaction, as to that conveyance, was wholly between his mother and himself, and William was not a party to it; nor is he shown to have known until a subsequent time, anything concerning the terms and conditions on. which the conveyance was made. Subsequently, and before the settlement, plaintiff, in response to defendant William’s demand for the payment of his share of the moneys, told him: “Here is the stable and the house, and the house up at seventh avenue. I have made it over in the old woman’s name for you.’’ Ho intimation was given that the conveyance to the mother was simply a mortgage. Relying on that statement, the subsequent settlement between the parties was made, the defendant William assuming the-burden of obtaining a conveyance to himself from bis mother,—a conveyance which was afterwards made. We are clear that the-character and effect of the conveyance by the plaintiff to his-mother was not determined by the transaction that occurred at the-time, but by what subsequently took place between the plaintiff and his brother William, the sole parties in interest; and that... from the time that such settlement was made, the deed executed by the plaintiff operated as an absolute conveyance, or, at least, that he was estopped from asserting to the contrary; the defendant. William having settled with him on the strength of his statement that the conveyance was absolute.

The judgment appealed from should be affirmed, with costs,

All concur.


text:
    Harvey Murdock, Resp’t, v. Louis R. Jones et al., Def'ts.

      (Supreme Court, Appellate Division, Second Department,

      Filed April 7, 1896.)

    1. Appeal—Mechanics’ liens.
    Where, upon an appeal from a judgment, in an action to enforce a mechanic’s lien, which adjudges that the claimant has no lien upon the property and directs the notice of lien to be canceled, no notice of appeal is. served upon the owner, the appellant loses his right to reinstate the lien,, even though the judgment below is erroneous.
    3. Same. n
    But the appellant is entitled to have the judgment reviewed, in so far as it settles its account with the contractor,
    3. Contracts—Architects—Oebtieicate.
    Where the architect refuses a material man a certificate, on the ground that it is unnecessary, such refusal dispenses with the necessity of the for-
    „ mer’s part to secure such certificate, though required by his contract to-enable him to recover from his contractor.
    4. Same—Performance.
    Where, under a contract to furnish materials in accordance with the-specifications of the architect, there is a general custom for material men to apply to the architect for the specifications when desired, a material man cannot excuse his delay in furnishing the material on the ground that the specifications were not furnished in time by the architect, where it appears that there was no delay on the part of the architect in furnishing; the specifications when applied for by the material man.

      5. Same—Damages.
    On failure to furnish the material within a reasonable time, whereby the contractor was prevented from completing the building within the time required by his contract, the latter may recover from the former as damages the amount he is required to pay the owner for the delay, though the material man was unaware of the' time within which the contractor was required to complete the building. , , _ v x.r ,
    Appeal from a judgment entered on the report of a referee.
    J. T. Marean, for app’lt; Charles Robinson Smith and Louis Bean Speir, for resp’t.
   CULLEN, J.

The plaintiff, in September, 1889, entered into a contract with the defendant Jones, by which the former was to •construct a dwelling house for a specified sum. In December of the same year the plaintiff entered into a contract with the defen■dant the tile company, whereby the latter was to furnish the trim ■and cabinet work for the house, but not to set them in place, for the sum of $4,946. Shortly after, the house was finished, or •claimed to be finished, the plaintiff filed a merchant’s lien for the balance due him on his contract with the defendant Jones, and for ■certain extra, work, and the defendant the tile company filed its lien for the unpaid balance claimed to be due it from the plaintiff. Thereafter the plaintiff brought this action to enforce his lien. In his complaint he alleged that the tile company had failed to complete its contract with him, by delay intime of performance, and by furnishing him improper and defective materials; that by such breach plaintiff had been damaged in a sum greater than the balance due the tile company on the contract, and, as against it, ■prayed that the lien filed by the tile company be discharged. The tile company answered, asserting the validity of its lien. The •defendant Jones answered, denying that the plaintiff had completed his contract, and also counterclaiming for damages for •delay and defective work. The action was tried before a referee, who found that the plaintiff had substantially performed his contract for'the construction of the house, but allowed the defendant Jones, as a set-off, $1,390.27 damages for the delay in the performance of the contract. As between plaintiff and the tile ■company, the referee decided that the tile company substantially performed its contract, but that it delayed in such performance, and prevented the plaintiff from performing in time his contract with Jones. He therefore allowed the plaintiff, as a set-off against the tile company, the same sum allowed Jones against the plaintiff., The referee further found that some of the material furnished by the tile company was defective; which necessitated its being taken out and the work being done over, and also that the tile company did not make proper deliveries of the material, and that on account •of such course the plaintiff’s workmen were compelled to lose time, in setting the woodwork up. For this last breach the referee allowed the sum of $1,650. The aggregate of these two allowances to the plaintiff exceeded the balance due the tile company on the contract. No judgment was given.-for the deficiency, but the tile company was adjudged to have no lien on the property, and the ■notice of lien filed by it was ordered to be canceled. From this judgment the tile company has appealed.

The notice of appeal taken by the tile company is directed only to the plaintiff, and was not served on the defendant Jones. As the defendant Jones, the owner of the property affected by the lien, is not a party to this appeal, we do not see bow it is possible to reverse the judgment, in so far as it voids the lien filed by the tile company. By neglecting to make him a party to this appeal, it ■has lost its right to reinstate the lien, even if the judgment below is erroneous. Mechanics’ Lien Law, § 15, provides that in any action brought to foreclose the lien, if the party failed for any reason to establish the lien, he may nevertheless recover therein, ■on the contract, such sum as may be due him. As the question ■of the liability of the plaintiff to the tile company, on the contract between them, could be determined, and was actually litigated, on the trial, the judgment herein would conclude the tile company in any subsequent action. We think, therefore, it has the right to prosecute this appeal and have the judgment reviewed, oven though it cannot regain its lien.

The first point to be disposed of is the plaintiff’s claim that the ■appellant failed to obtain a certificate from the architect as to the completion of its work, which was required by the contract. The referee has found that the appellant did substantially perform its contract, The architect, upon the completion of the building, gave a certificate to the owner that the plaintiff had performed his contract for the construction of the house. It is true, as claimed by the plaintiff, that this certificate did not necessarily imply a certification that the appellant had fulfilled its contract with the plaintiff; for non constat but that the plaintiff himself furnished the trim necessary for the construction of the house. But when, the appellant applied to the architect for its certificate the architect declined, upon the ground that he had given a certificate to the owner, and that was all that was requisite. This was an unreasonable refusal on the part of the architect, if, as a matter of fact, the appellant had performed its contract, and this the referee has found. Such refusal dispensed with the necessity of producing a certificate.

The evidence amply justified the finding of the referee that the appellant was guilty of gross delay in the performance of its contract. We do not assent to the plaintiff’s claim that the appellant took the risk of any delay on the part of the architect in failing to furnish detailed plans or drawings. We think, under the contract, the performance of this duty by the architect was a condition precedent to any duty on the part of the appellant; but the evidence of the architect as to the general practice in the business was that, whenever a party wished or required detailed drawings, he applied to the architect. This evidence as to the custom is uncontradicted, ‘and it also appears from the appellant’s evidence that whenever it needed drawings it sent to the architect for them. While many of these drawings were not furnished uptil a time long after that at which appellant should have finished its contract, it does not ap- ' pear, nor is there any claim, that the architect delayed in furnishing the drawings when they were applied for. The delay in performing the contract seems, therefore, to have been solely the fault of the appéllant.

The appellant claims that, conceding it was default in respect to time of performance, an improper rule of damages was held "against it. We think not. Though the evidence does not show that the defendant was informed of the time within which the plaintiff, under his contract witti Jones, was bound to construct the house, still it abundantly appears that he knew that the plaintiff had a contract for such construction. He also knew that the materials were for this particular house; that they were not such as could be supplied in the. market, but had to be got out, fashioned, and formed in accordance with special designs. Under this-state of facts the case falls directly within the rule of Booth v. Mill Co., 60 N. Y. 487, and the appellant was bound to indemnify the plaintiff against any damage he might suffer under his contract with Jones. There is a further answer to this claim of the-appellant: It knew that its delay in furnishing the material contracted for would necessarily delay the completion of the house, and had there been no contract between plaintiff and Jones, but the plaintiff had been the owner of the property, we cannot see why the rule of damage adopted by the referee would not have-been entirely fair and applicable.

As to the second item of set-off allowed the plaintiff .as against the appellant, we are of opinion that the amount allowed by the referee was not justified by the evidence. It appears that plaintiff had made a contract with a cabinet worker to set up the trim and woodwork, and also construct fences and coal bins, for the sum of $550. The plaintiff, as a matter of fact, paid the cabinet worker $2,200. The plaintiff claims that this increased expense was occasioned by the fact that defective material furnished by the appellant had to be torn out of the house, and new material set up, and also that the deliveries by the appellant were made piecemeal, so that the men could not work advantageously. No claim is made for new material substituted for that which was defective. All defective material seems to have been replaced by' the appellant. Hence the sole claim is based on extra work. That some of the material originally furnished by the appellant .was defective is unquestionable, and therefore the plaintiff should doubtless have-some allowance for extra work occasioned thereby. The proof, however, to establish that the whole of this great-increase of cost was occasioned by defects in the defendant’s material, is very unsatisfactory. In the first, place, the difference between the contract price with the cabinet worker and the amount actually paid could not be the measure of loss, because the latter amount included extra work not provided for by the contract. The evidence to sustain the plaintiff’s claim in this respect was substantially that cabinet workers were employed for 600" days; that ordinarily; where proper material was furnished, the trim furnished by the appellant could have been set up in 120 or 130= days; and that from thirty-five to forty days were required to setup coal bins and fences which were not included in the appellant’s contract, on which it is sought to charge the defendant with the difference between the time actually taken and the time which should have been taken to do the work according to these estimates. We doubt if this evidence was competent to establish •any such fact. Whatever value it may have had was destroyed by the time sheets introduced to support it. As to the major part of the work, the time sheets fail to show on what particular •character of work the men were employed. Where they do indicate the character of the work, they show that on many occasions the work had no connection with the appellant’s contract. Thus work is mentioned on the dumbwaiter, on floors, on stairs, and other parts of the building. The plaintiff’s witness were also allowed to testify generally that the extra work occasioned by the improper deliveries and defective material amounted to 400 or 500 days, of which they thought that two-thirds was occasioned in tearing down and replacing defective material, and one-third by having to temporarily abandon the work for lack of material •on hand. On cross-examination, being asked to specify the' particular pieces of work replaced, and the time spent in replacing them, the witnesses could not give instances amounting to a quarter of the extra work testified to. Such evidence is wholly unreliable, and, especially in this instance, should have been given little or no weight. Of course, it is of a character that, from the ■mature of things, it was impossible for the appellant to controvert. If the plaintiff intended to charge the appellant with this •great sum, amounting to one-third the contract, common fairness •dictates that he should point out with reasonable definiteness the ' particular pieces of bad work which were replaced, and the time spent in replacing them, so that the defendant might determine whether these charges were reasonable, and, if unreasonable, resist them. At most, in our judgment, the extra work of this character established by the evidence, and of which details are given, amounts to 105 days. The allowance for this, at $3.25 per day •and 10 per cent, for the contractor, would amount only to $375.37, instead of $1,650, allowed by the referee.

The judgment appealed from should be reversed, except so far as it cancels the lien of the appellant, and a new trial ordered on the issues between the plaintiff and the appellant; costs to abide ■event.

All concur.


author: BROWN, P. J. PRATT, J. CULLEN, J.

text:
    Walter E. Parfitt, App’lt, v. Kings County Gas Illuminating Company et al., Resp’ts.

      (Supreme Court, Appellate Division, Second Department,

      Filed April 7, 1896.)

    1. Appeal—Evidence.
    An appellate tribunal- is not warranted in reversing a judgment unless the findings of the trial court are against the weight of evidence, and it clearly appears that the proofs predominate in favor of a contrary result.

      2. Constitutional law—Statutes—Local acts.
    Chapter 59 of 1891 is in conflict with section 16, article 3, of the State Constitution, which provides that no local bill shall embrace more than one subject, to be expressed in its title.
    3. Same.
    But such statute is not wholly void because it embraces two subjects, but it can be sustained only as to that subject which is expressed in its-title.
    4. Municipal corporations—Contract for lighting.
    A contract between a town and a gas company, to supply the town with
    . gas, is not illegal "because it provides that the company shall be reimbursed by the town for any expenses incurred in making changes in the-gas mains, pipes or lamp posts made necessary by changes in the grade of streets after the company has entered on the performance of the contract.
    5. Same—Exclusive privileges.
    A provision in such contract that no other gas or electric light company shall have the consent of the board of improvement of such town to extend its mains or lay its pipes or conductors within the town during the-term of the contract, is illegal and void. ,
    6. Same.
    Such a covenant or agreement can have no force or efficacy except during the existence of the board of improvement.
    7. Same.
    Chapter 451 of 1894 has not only abolished the board of improvement, but. has vested the control of the streets in the municipal officers of the state.
    Appeal from a judgment dismissing the complaint
    Grout, DeFere & Mayer, for app’lt; William J. Kelly, for resp’t the Kings County Gas & Illuminating Co.; Cornelius Ferguson, Jr., for resp’ts C. Ferguson and others; Michael Furst, for resp’t J. Lott Nostrand.
   BROWN, P. J.

This is a taxpayers’ action, brought to obtain a judgment declaring illegal, and setting aside, a contract between the board of improvement of the town of New Utrecht, in Kings county, and the Kings County Gas & Illuminating Company. The contract bears date December 26, 1889; and, by its provisions, the-gas company agreed, during the term specified, to erect and maintain in said town, on land to be purchased or leased, a gas tank and all necessary appurtenances for the storage and supply of illuminating gas sufficient to supply the entire town, ana to lay all necessary mains and pipes, and connect them with street lamps to be erected by the board of improvement, and to furnish, at a, price named, a fixed and permanent illuminating gas, of a quality and at a pressure specified, sufficient to supply the consumption thereof throughout said town. The original contract was made for a term of ten years from the date of the commencement of the-delivery of gas (which date is agreed to have been September 2, 1891); and on March 19,1891, pursuant to the provisions of chapter 59, Laws 1891, it was extended for the further period of fifteen years. The original contract is assailed by the plaintiff on the ground of fraud and illegality; the extension contract, on the-ground of illegality alone. The allegations in respect to fraud, were (1) that the contract did not follow the specifications which were adopted by the board of improvement, and upon which bids-were invited to furnish gas to the town, but that its provisions in material and substantial particulars departed'from the specifications, all of which changes and variations were favorable to the gas company, and burdensome to the taxpayers of the town ; (2) that lamps had been erected in places remote from any dwellings, and in the-unimproved and outlying sections of the town, where-they were useless and of no practical benefit to the inhabitants, and that the gas company was directed by the board of improvement and permitted to supply gas thereto, to enable it to obtain, money wrongfully from the town.

The determination of the questions raised by these allegations, with a single exception, rested wholly in the consideration of parol evidence. The testimony was conflicting, and it received from the-learned judge who heard the case at special term very careful examination. His conclusion was that the charges of fraud were not established, and we concur in that view of the case. The rule is-well settled that an appellate tribunal is not warranted in" reversing a judgment unless the findings of the trial court are against-the weight of evidence, and it clearly appears that the proofs predominated in favor of a contrary result. Aldridge v. Aldridge, 120 N. Y. 614; 31 St. Rep. 948; Barnard v. Gantz, 140 N. Y. 249; 55 St. Rep. 541. The decision of the special term has ample support in the testimony; and it is sufficient for us to say that, having carefully read the evidence, we concur in the result, there reached.

As first prepared, the specifications provided that gas furnished under the contract should be manufactured in the town. One of the questions seriously in dispute at the trial was whether this-provision was stricken from the specifications before the board advertised for bids. It appeared in the first, sixth, and twentieth clauses of the proposed contract, and the fact appears to be that-from the last-named clause it was not' stricken out. That provision of the contract related solely to the time when the contracting company should be ready to supply gas," and in terms provided that, at the date specified, it should be ready to “manufacture and deliver” gas. Assuming, as we must, that the changes had been made in the other provisions of the proposed contract before the-board advertised for bids, and that bidders were invited to supply gas to the town, and not to manufacture it within the town, the fact that the twentieth provision was permitted to stand as originally prepared was a mere error, which deceived no one, and is ■ wholly insufficient to. sustain a conclusion of a fraudulent act upon the part of the contracting parties. All persons understood that bids were invited to supply gas only; and, for so providing in the contract, neither the board of improvement nor the gas-company should be subjected to any adverse criticism.

- In considering the questions of illegality raised by the appellant, reference is necessary to the statutes creating the board of improvement of the town, and defining its powers. The said board was established by chapter 576, Laws 1888, and was authorized to contract with' any gas company to supply gas for lighting any street or streets, or parts thereof, in said town, for a period not exceeding twenty years, upon such terms and conditions as the said board should deem expedient. Section 9, as amended by chapter 361, Laws 1889. It was empowered to establish gas districts in the town, and to erect posts, lamps, and fixtures, and to do all work incidental to lighting the streets. The expense thereof was, in the first instance, to be paid from the proceeds of town bonds authorized to be executed by the supervisor upon the direction of said board, but was finally to be levied upon and ■collected from the property in the gas districts established by the board; and the cost of the gas supplied was to be levied upon and ■collected from the property in ■ the school districts of the town. The provision for apportioning the cost of gas upon the school districts of the town was contained in section 12 of the act of 1888. By chapter 59, Laws 1891, this system of raising money to pay the cost of the gas supplied was changed, and the expense thereof, together with the amount necessary to pay principal and interest of bonds issued to pay for lamps, posts, etc., was thereafter to be included in, and made a part of, the annual taxes to be levied in the town, and was directed to be certified to the board of supervisors by the board of improvement, and levied and collected in the town in the same manner as other town expenses. Under this system, section 12 of the original act became superfluous, and it was Repealed, and in its place was enacted the following:

“ Sec. 12. Nothing herein contained shall be construed so as to impair the forcé of any contract heretofore made by or with said board for lighting the streets of said town, and establishing the maximum limit’ of price to be charged to private or individual consumers of gas; but the same is hereby in all respects confirmed, and may be extended upon the like terms and conditions for such further period, not exceeding fifteen years, as in the judgment of said board may be deemed most expedient and for the best interests of the town.” j

It is the the respondents’ contention that any illegality "existing in the original contract was cured by ratification of the legislature expressed in this section of the law. It would seem that the main purpose of this amendment was to conform the contract to the new system of payment imposed upon the town. But, from its plain terms, we must assume that it was also the intent of the legislature to ratify the contract, and make valid any illegality existing therein. So considered, we are of the opinion that the act of 1891 is-in conflict with section 16 of article 3 of the constitution, which provides that “ no private or local bill which may be passed by the legislature shall embrace more than one subject, and that shall be expressed in its title." The act was a local one, and clearly embraced two subjects,—one relating to the board of improvement and the powers thereof, and the other relating to a contract theretofore made by the board. The ratification of a contract which was illegal, because it was not within the power of the board, was a subject entirely separate from the creation of the board as a public body, and the delegation to it of certain powers and duties. The statute, however, is not wholly void because it embraces two subjects, but it can be sustained only as to that sub-, jeot which is expressed in its title. People v. Board of Supervisors of Chautauqua Co., 43 N. Y. 10. By its title it is an act to amend chapter 576, Laws 1888; and its application, therefore, must be limited to the powers and duties of the board of improvement, and such other matters as are incidental to the exercise of those powers. So far as it purports to ratify the original contract, it is void.. The board of improvement, therefore, possessed the power to extend the contracts, and the criticism made by the appellant upon the extension thereof is not well founded. Whatever may be said as to the meeting of the board at which the extension of the contract was authorized, and which was held during the absence of Mr. Nostrand from the state, and the omission $o give him notice thereof, these facts do not affect the legality of the board’s action.

We come, therefore, to the questions, raised by the appellant, as to the illegality of the provisions of the original contract. Such illegality is claimed to exist (1) in the provision that the gas company shall be reimbursed by the town for any expenses incurred in making changes in the gas mains, pipes, or lamp-posts rendered ■necessary by changes in the grade of streets after the gas company had entered upon the performance of the contract; (2) in the provision that no other gas or electric light company shall have the consent of the board of improvement to extend its mains or lay its pipes or conductors within said town during the term of the agreement.

We fail to perceive wherein the first provision is illegal. The board of improvement was authorized to make the contract upon such terms and conditions as it should deem expedient. The term “ street ” was defined by the law to include each and every public highway of the town, and each and every street and avenue laid down on the map of the town survey commission, which had been opened to the use of the public. It was apparent that the company might bé required to lay its mains and pipes in the ■streets the permanent grade of which had not been established; and the question as to which party should bear the expense of making changes in the pipes, which should be made necessary by changes in the grade of the streets, was a proper and legitimate subject of negotiation and contract. If was, we think, a matter upon which the board- of improvement was authorized to exercise its judgment, and with its determination the court cannot interfere!

With respect, however, to the provision that the board of improvement would not give its consent to any other gas or electric company to lay its pipes or conductors in the streets of the town, we entertain a different opinion. The original act provides that the term “ gas” is to be construed as applying to light produced by electricity as well asgas, and that any gas company shall have power to extend its mains or lay its pipes or conductors through any of the highways of the town with the written consent of the.* board of improvement, and under such reasonable regulations as. it should prescribe. The supervisor of the town was ex officio & member of the board, and the other members were to hold office for four years, and provision was made for the appointment of their successors. The board, therefore, became a permanent pub-lie body, and possessed important public functions, which its; members were bound to exercise whenever the occasion required,, with due regard to the public interests, and for the benefit of the-taxpayers of the town. It is too plain to require argument that, the members of the board could not enter into a contract not to-perform any of the duties which the law devolved upon them, nor could the board, as it existed in 1889, do any act that would deprive another board from exercising any of the powers delegated to it by the statute. Any attempt to curtail or deprive themselves or any of their successors of the right or power to-perform their public functions would be against public policy, and void. This provision of the contract was a plain attempt on the part of the board to confer upon the gas company a monopoly, not only of the street lighting, but of supplying the residents of the town with light. Over the lighting of the streets the board had some control; over the lighting of public and private buildings it had none.

Under the general laws as they existed at the time this contract was made, and as they exist now, any gas or electric company incorporated under the laws of this state may, with the consent of the municipal authorities, lay its conductors in the streets and highways of the city, village, or town whére it is located; and such corporations are required, upon the the conditions stated in the statute, to su-pply light to the owners of any buildings or premises within 100 feet of their conductors. Laws 1848, c. 37, § 18; Laws; 1859, c. 311; Laws 1892, c. 40, §§ 61-65. It was not the purpose-of section 13 of the act of 1888, which established the board of improvement, to alter the general policy of the law which permitted gas companies to lay their pipes in the public streets. The-only effect of that provision was to require such companies in the town of New Utrecht to obtain the consent of the board of improvement, in addition to that of the municipal authorities of the town. Whenever an application was made, the board was bound to exercise its powers to grant the consent under “reasonable regulation.” Any gas company was entitled to locate in the town of* New Utrecht, and supply the inhabitants thereof with gas and electricity; and the board would be bound to permit them to lay pipes in the streets under reasonable regulations. Such powers-as are granted by sections 13 of the act are conferred on public officers for the public benefit, and are not to be exercised arbitrarily or for the benefit of individuals, or to create monopolies. It is true that the provision of the contract does not immediately cause any waste of the fund's of the town or of the taxpayer. Bub the authorities all hold that the terms “ waste ” and “ injury,” as; used in the statutes and Code, comprehend illegal official .-acts,, Talcott v. City of Buffalo, 125 N.Y. 280; 34 St. Rep. 871; Zeigler v. Chapin, 126 N. Y. 342; 37 St. Rep. 490; Peck v. Belknap, 130 N. Y. 394; 42 St. Rep. 384, and. we are of the opinion that those terms include acts which tend indirectly to injure the taxpayers, as well as those the direct effect of which is to cause' a loss or waste of public property.

That this provision of "the contract was a menace to the inhabítants of the town is beyond question. Its tendency was to destroy competition, and create a monopoly, not only of street lighting, but also of supplying light to public and private buildings. If, therefore, the question presented rested solely upon the contract and the statutes ~ relating to the board of improvement and its powers, which 1 have referred to, we should feel constrained to hold that the provision of the coritract under discussion was one beyond the power of the board to enter into. But we are of the' opinion that by the law annexing the town-of New Utrecht to the city of Brooklyn, enacted since the commencement of this action (chapter 451, Laws 1894), the said provision has been annulled, and that any affirmative action by the court in relation thereto is unnecessary. By the sixth section of the act referred to, the board of improvement was abolished ; -;and, by the first section thereof, the territory comprised within the limits of the town of New Utrecht was annexed to and merged in the city of Brooklyn; and it was enacted that thereafter such territory should be governed by the same laws, and should be entitled to the same rights, privileges, franchises, and immunites, as the said city of Brooklyn. This act took effect July 1, 1894. By Laws of 1892, c. 40, § 61, any gas or electric company has authority to lays its pipes or mains in the streets of the city where it is located, with the consent of the municipal authorities thereof It will be observed that the provision of the contract under discussion-does not, in terms, grant, or attempt .to grant, to the gas company, the exclusive right to lay its pipes in the streets. The company acquired no apparent right or franchise thereby. The board agreed merely not to grant its consent to any other company to extend its mains or lay its pipes in the streets. This ‘ provision is in the nature of a covenant on the part of the board of improvement not to exercise the power delegated to it by the state. Such covenant or agreement could have no force or efficacy except during the existence of the board of improvement. When the official life of the board terminated, the agreement was at an end. The act referred to has not only abolished the board of improvement, but, by its provisions, the territory within which lay the streets referred to "in the agreement has come under the operation of new laws, and the control of the streets is now vested in the municipal officer of the city. The power and authority of -the officials of the city are not in any way limited by the contract in question, and the provision under discussion, even assuming that it once had apparent vitality, is now of no force or effect whatever. It would be idle, therefore, for the court to adjudge it to be void. \No other question requires notice.

The judgment should be affirmed, without costs.

HACTH, J.s concurs. "

New York State Reporter, Vol. 73. [Sup, Ct,

PRATT, J.

This suit was brought by the plaintiff, a taxpayer in the former town of New Utrecht, in Kings county, under section 1925 of the Code of Civil Procedure, against certain town officials constituting a board of improvement, as well as against the town and a gas company; the relief sought being the cancellation of a contract.' made with the corporation for the lighting of the town with gas. The contract was dated December 28, 1889, and an extension thereof was dated March, 1891. It was an executed contract, in so far as the defendant gas company was concerned, before this suit was brought. The corporation began the work of laying gas mains, and the erection of a plant and the illumination of the town commenced September 2, 1891. Various extensions of the mains were ordered by the town officials on petition of property owners and citizens, the company expending a large sum of money (over §600,000) in the work before the plaintiff brought this action, which was commenced in May, 1893. The plaintiff attacks this contract on the ground of alleged fraudulent connivance between, the town officials and the corporation in the making of the agreement, and, secondly, because of alleged want of power on the part of the officials to make the contract. The allegations of the latter clause of complaint is somewhat general, the language used charging that the contract is' “ illegal and void”; and plaintiff, on being called on for a bill of particulars, stated his contention in this respect in detail, the bill of particulars being made a part of the case on appeal. The question of the constitutionality of the laws under which the original contract and the extension contract were made is not raised in the complaint or in the bill of particulars, nor does it appear to have been pressed upon the trial court. In addition to the specifications of fraud, waste, want of power, and illegality, .the plaintiff now urges on the appellate court the question of the constitutionality of the legislation involved in making of the agreements.

So far as the charge of fraud or connivance between the officials and the corporation is concerned, such charges always present an issue of fact to be determined on the evidence adduced by the parties to the litigation. The claim that this cdntract was tainted with corruption or fraud was one of the essential points in plaintiff’s case, and the burden lay upon him to prove illegal, wrongful or dishonest official acts on the part of these officials, Talcott v. City of Buffalo, 125 N. Y. 280; 34 St. Rep. 871; and his proof in this respect is, at least, required to be as full and complete as in the case of any other proposition of fact proposed for decision by the court: Kountze v. Kennedy, 147 N. Y. 124; 69 St. Rep. 388. The learned judge who tried this case, and whose opinion is inserted at length in the judgment appealed.from, gave the evidence for and against this alleged fraud and deceit careful and exhaustive consideration, and decided the issue against the plaintiff. It would be enough for this appellate court to ascertain simply whether this finding was supported by evidence, in which ease the decision of the trial court is uniformly upheld. Baird v. Mayor, etc., of New York, 96 N. Y. 567; Lowery v. Erskine, 113 N. Y. 55; 21 St. Rep. 917. But if we go further, and examine the testimony contained in this record, we must he convinced that the plaintiff failed to make out a case of dishonesty or corruption against these public officials. That certain of the plaintiff’s associates were not in sympathy with this town board is.manifest. Their difference of opinion on many subjects is apparent from the evidence; but, on the issue as to good faith in dealing with this gas company, the most that can be said of the evidence of plaintiff’s witnesses is that they were, undoubtedly, suspicious of everything these officials did, and have allowed their suspicions to govern their cooler judgment, because, even on the showing of plaintiff’s witness McKay, who in effect, was the only witness who asserted positively the improper action on the part of the board, the facts testified to are entirely reconcilable with honesty of intention, and at the most, raise a doubt which is entirely overcome by diréct and positive testimony on the part of the defense. One of the plaintiff’s witnesses, E. EL Sherwood, who was called to support the contention that changes or alterations were made in the specifications, not only failed to maintain the plaintiff’s claim, but his evidence made strongly for the bona fides of the action taken by the town board. The claim relative to th.e number of lamps is met by proof that the additional lamps ordered were in each case on petition of the property owners, and plaintiff’s chief witness, ETostrand, who was stated to be one of the leading property owners in th'e town, and opposed to the board of improvement, admitted on the stand.that he voted for every increase, and had no complaint to make as to the number of lamps. In fact, no property owner in the town was produced who criticised the number of.the lamps. We are bound by the record, and it is apparent that not only is there abundant evidence in the case to sustain the court’s finding, but the weight of the testimony as to honesty and good faith was entirely with the defendants. The proofs failed to justify the charges of fraud and favoritism set forth in the complaint, and, in fact the allegations of excessive charges for lights, set forth with great positiveness in the pleading, were withdrawn upon the trial. There is therefore no ground for reversing the finding of the special term on the issué of fact as to the bona fides of the contracts in suit, and the remaining inquiry must be directed to the alleged want of power in the board to act in the matter.

The plaintiff’s claims as to the illegality of their agreements are set forth in his complaint. It is charged that the original contract “was and is beyond the power of the said board, and was and is illegal and void.” This is followed by a statement of specific allegations of misconduct on the part of the board of improvement in, dealing with the defendant gas company.. The plaintiff then states his objections to the second or extension contract; pind it is definitely set forth that the board “had no power to make the said last-mentioned contract, and the same was made by them in violation of law, and that their act in making the same was and is illegal, and was also intended by the said officials to continue the fraud illegality, wastefulness, and inequitableness of the said first contract; that, as the plaintiff is informed and believes, it was the duty of the said board and of the members thereof not to make the said second contract until at or about the expiration of the said first contract, in the year 1901; that they made the same in disregard of their duty to wait until the end of the formér contract, and thus get the advantage for the town of all competition, and of lower rates that would accrue in the meantime, and solely for the purpose of favoring the said company at the expense of the town,” etc. 'The plaintiff, in addition to this statement of his claim, which, it will be noticed, in no way raised any question of constitutionality of the laws organizing the board but averred the existence of the board under the acts of the legislature, and averred its duty to be to wait until 1901, and then to extend the contract, served a bill of particulars, as required by Code Civil Procedure (section 531), in which he assumed' to state with greater clearness and definiteness his claims of illegality. And it will be perceived that neither in his complaint nor in the additional bill of particulars is there any intimation that the law is not in effect and .binding., Passing to the judgment, the opinion of the court is incorporated at length in the decree, and forms a part thereof; stating the ground upon which the issues have been decided; and it is again apparent that the plaintiffs contention on his pleadings and, proofs at the trial in no way attacked the constitutionality of the various laws creating the board of improvement, or the power of the legislature to pass the acts in question, but, on the contrary, reiterated his views of the duty of' the town officers under the acts in question. The question of constitutionality was apparently not presented to the court, because it is not referred to in the lengthy opinion delivered at the special term, nor in the points submitted on behalf of the respondents on the arguments before this court. In short, it nowhere appears that the attention of the court below was called to the point, or that it was asked to rule on the question, or upon any point-which, by the most liberal construction, can be held to embrace it. The decision of the court is contained in the judgment appealed from, and there is no decision on this point before this court for review, and reviewing decisions of the courts below is the sole and exclusive duty of this court. Delaney v. Brett, 51 N. Y. 78; Vose v. Cockcroft, 44 N. Y. 415. That the court was desirous of passing on all possible questions fairly raised by the pleadings and proofs is evidenced by the reference to the constitutionality of the defendant’s contention that these contracts had been ratified by act of the legislature. But at no place in the record of the trial in the motions there made, in the pleadings, and apparently in the arguments addressed to the court, and recited in the judgment, was it claimed that those acts were not valid and binding. On the contrary, they were alleged as existing law ; the ‘ duties of the officials and of the company under these acts were pointed out by the plaintiff; and their alleged failure to comply with these obligations was urged as ground for annulling the contract. Cases must be considered on review on the theory on which they were tried. Emmons v. Wheeler, 3 Hun, 545.

While we adhere to the rule above'laid down, the questions of law involved in considering the contract in suit are clearly settled, .and the interests affected by the decision of this appeal are large. It is well owing to the quasi public functions of the defendant corporation that its rights and obligations should be definitely determined ; and, as consideration of all the points urged by the .appellant leads us to affirm the judgment appealed from, we have stated our views on all these matters, as well as those properly before the appellate court.

The greater part of the brief submitted by the learned counsel :for the appellant is devoted to a discussion of the facts on which the plaintiff based his charge of fraud; and as to this charge we have -determined that the decision of the court below should not be disturbed. He alleges, however, as specifications of illegality, a -clause in the" original contract by which the defendant board •covenanted that it would not grant similar rights to other gas -companies; and he claims that this clause created a monopoly, or was a grant of an exclusive privilege, and beyond the power of the board of improvement. There must be grave doubt whether this board, acting pursuant to statute, having made a contract with this defendant company to do certain acts, possessed any power to grant further consent to any other company to do the same thing (Mayor, etc., of New York v. Second Avenue R. Co., 32 N.Y. 261; Dartmouth College v. Woodward, 4 Wheat. 658); but in no way •did this provision of itself curtail the rights of the town officers ■other than this board in the premises, if they had lawful right to grant to other companies. So that the particular clause referred to, in itself, created no exclusive franchise. If it was beyond the power of the board, it was void, and did not bind any one; and, ■as stated by the learned trial judge, as the expenditure of no money is involved in any rights therein assumed to be given, the plaintiff needed no decree to protect him.

The plaintiff calls attention to a clause charging the town with the cost of changing the pipes wherever there should be a change of street grades. The case is barren of any evidence showing the effect of this provision, or whether it imposed any additional burden on the town, or was a source of damage to the taxpayers. It is not referred to in the decision. This board of improvement, as •appears from the evidence, directed •‘the gas company to lay mains in various localities. The provision referred to is, in effect, that, if the authorities thereafter change the grade of the streets in which the pipes have been laid, the expense of lowering or raising-the pipe to accommodate the changed situation should be borne by the town. There is nothing in the reading of this provision that makes it unconstitutional or improper. There is no evidence from which the court can find that it imposes any obligations on the town, or the amount thereof. The act of the legislature establishing this board of improvement provides:

“ The said board shall be empowered to contract with any gas -company to supply gas for lighting any street ór streets or parts thereof in said town, * * *. to such extent, for such periods, mot exceeding twenty years, and upon such terras and conditions, as they may deem expedient.” Laws 1888, c. 576, § 9, as amended by Laws 1889, c. 361.

We think that the provision referred to was a detail which was confided to the judgment of the board. It was proper that some provision should be made as a part of the general plan for lighting the town, and the exercise of that discretion by the board-should not be interfered with by the court in the absence of proof of fraud ; certainly not in a case where there is no proof of resulting damage to the town, Talcott v. City of Buffalo, supra.

The extension contract of March, 1891, is attacked as illegal,, unauthorized, and void. As above suggested, the plaintiff specified his objection to this contract by stating that it was the duty of this board to have delayed the extension of the contract until the year 1901, when the original contract by its terms expired - and it is to this argument that the appellant’s brief is directed, with the additional suggestion that the authority to extend is unconstitutional and void,—a point which, as we have stated, was not raised on the trial. A brief reference to the conditions prevailing with reference to the legislation and to these contracts is-important in determining the question here presented.

By chapter 576, Laws 1888, entitled “An act establishing a board of improvement, and defining its powers and duties, and to-provide for lighting the streets and other places in the town of Hew Utrecht, in the county of Kings,” it was enacted that there should be established in the town a board of five citizens, to be-known as a “ board of improvement; ” and by section 9 it was-provided (as amended by Laws 1889, chap. 361):

“ The said board shall be empowered to contract with any gas* company to supply gas for lighting any street or streets or parts-thereof in said town, * * * to such extent, for such periods, not exceeding twenty years, and upon such terms and conditions, as they may deem expedient.”

The object of the enactment is, as stated in the title and in the-section of the bill quoted, to supply light to the town. The legislature authorized a contract limiting the term to twenty years. The right of the legislature to prescribe the term of a contract authorized is fundamental. Similar provisions are found in nearly" every act providing for public improvements. The board of improvement, in December, 1889, made a contract with the defend.ant gas company, but limited it to ten years,—one-half the period which they were authorized to grant. It appears that the defendant company commenced the work of laying mains in the spring' of 1890, but the dernand for gas from property owners throughout, the town became so general that large extensions of the system were ordered. It became necessary, as disclosed by the testimony, to lay ninety-three miles of gas mains, to expend upward of. $600,000. The original capital of the defendant company was-but $100,000, as appears by the evidence introduced by plaintiff. This was- the situation in the spring of 1891, the defendant corporation, at that precarious 'period, being obliged to supply the demand for lighting facilities far beyond its original contemplation* In this contingency, and, as we are bound to assume, with know!edge of all the facts, the legislature passed chapter 59 of the Laws of 1891, entitled “ An act to amend an act entitled ‘ An act establishing a board of improvement, and defining its powers and duties, and to provide for lighting the streets and other places in the town of New Utrecht, in the county of Kings;’ ” and by section 12 of. the Laws of 1891 it was provided:

“ Nothing herein contained shall be construed so as to impair the' force of any contract heretofore made by or with said board for lightiiig the streets of said town, and establishing the maximum limit of price to be charged to' private and individual consumers-of gas, but' the same is hereby in all respects confirmed, and may be extended upon the like terms and conditions for such further-period, not exceeding fifteen years, as in the judgment of said board may be deemed most expedient and for the best interests of the town.”

The board met, and, in pursuance of the authority granted to-them, extended the term of the contract, on like terms and conditions, for a period of fifteen years." The aggregate term of the contract is therefore twenty-five years, instead of twenty, as prescribed in the original act.

It is alleged that, notwithstanding this enactment: the board had no power to make the extension contract, that the same was-made in violation of law;- and, when called on to particularize, plaintiff charges in his bill of ‘particulars that it was the duty of the board not to make the extension contract until at or about the-expiration of the first contract, in the year 1901. It is found in the judgment that, inasmuch as the plaintiff does not assail this-extension contract on the ground of any fraud, but purely on' the-ground of illegality, this claim is not well founded. On the trial, the president of the defendant corporation being interrogated as to-his knowledge of the law authorizing the extension, the plaintiff’s-counsel interrupted the examination, stating, “ There is nothing on the question of extension which I propose to raise except ques-' tions of law ; ” and the two questions of law are distinctly stated in. the decision contained in the judgment now here in review:

Nostrand, ■ one of the board was absent on a fishing trip in Florida or Cuba, at the date of the meeting, and the extension was-ordered by a vote of four of the five members. The legislature-especially provided in the original act of 1888 (Laws 1888, chap. 576, § 7>:

“ Three of the members of said board shall constitute a quorum, and the affirmative votes of a majority of the entire board shall be necessary to transact the business of said board at a regular meeting, or. a special meeting, and all the members shall be duly notified to attend. In making or awarding any contract, or in expending or providing for the expenditure of any moneys, the affirmative vote of a majority of the entire board shall be necessary.”

The witness Keegan, a member of the board, and who attended to notification of members, testified that, a meeting having been called to- decide about the extension, he called up the office of Nostrand, on the telephone; that he had no knowledge of Nos-brand’s absence, and then learned that he had gone down South. We concur with the decision of the learned trial judge that, under the circumstances, the legal requirements were complied with, and that this municipal board was not bound to await the return o£ one of its members from a pleasure trip before transacting the business which might come before it.

Nor is the contention of the appellant sustained that the board was under legal, obligations to wait until 190L to carry out the legislative intent, or that it was necessary to readvertise. Plaintiff -failed to show any impropriety in the charge for gas mentioned in the contract, withdrawing on the trial the serious charges made in -the complaint in that regard. The legislature having said that this identical contract might be extended on the same terms and •conditions, what lawful criticism can there be on the legality of the action of the board ? We cannot as an appellate court, criticise the authority of the legislature to so direct. If they had the power to prescribe the terms of tha first contract, they had the right to extend that term. The”plaintiff cannot come before the -court in the anomalous position of insisting that the legislature might authorize a contract for twenty years, but not for twenty-five. The argument is without force; and the legislative power being1 granted, it is absurd to say that this board was required to postpone its action for ten years. It is provided that chapter 59, Laws 1891, shall take effect immediately.- As was said in People v. Butler, 147 N. Y. 164; 69 St. Rep. 410, where a somewhat similar argument was urged on the court, “ no ingenuity can suggest a reasonable explanation for such an extraordinary intention on the •part of the legislature. We cannot attribute any such intention to that body.” These objections to the extension contract must fail.

The appellant raises, apparently for the first time, a question of the constitutionality of chapter 59 of the Laws of 1891, in so far .as it authorizes the extension of this contract. The original term provided for in the act being twenty years (of- which the board of improvement specified but ten in the contract), it is claimed that ••this is a local act, and that its title does not sufficiently indicate the subject matter. The case of Rogers v. Railway Co., 30 Supp. 655, is cited in support of this argument. The provisions of the law criticised by the special term in the case cited are so essentially different from the law here under consideration that it should not be necessary to distinguish between them. In that case the •court held that the amendatory act passed in 1894 sought to ratify and confirm the proceedings of a railroad company that had succeeded to the corporation organized under the act of 1863, so as to confirm a right to build a railroad in one of the streets of the ■city several 'miles distant from the original place where one was authorized to be constructed. The court said that no one, in reading the title of the act, would have the slightest idea that it .authorized the transaction mentioned in the body thereof. ■

Any contention that the legislation authorizing the contract or extension is unconstitutional if at all justifiable should be directed against the original act of 1888, and not against either of the .•amendments. Such a contention cannot be seriously maintained. The original'act (chapter 576, Laws 1888) is entitled “An act establishing a board of improvement, and defining its powers and ■duties, and to providing for lighting the streets and other places In the town of New Utrecht, in the county of Kings.” This title •should be read in close relation with the language of the constitution, which is that no local bill “ shall embrace more than one subject, and that subject shall be expressed in the title.” Const,, aft. 3, § 16. It must be observed that it is the bill which shall mot embrace more than one subject; and if the bill embraces but one subject, and if that subject is expressed in the title, the lan;guage and intent of the constitution are satisfied. Whenever, therefore, a bill is attacked as in contravention of the provisions ■of this section, the first duty imposed upon the court is that of •examining the bill itself. The act (chapter 576, Laws 1888) can-mot be said to embrace more than one subject. That subject is the lighting of the streets and other places in the town of New Utrecht. All the provisions of the act, including the establishment of a board of improvement, relate to that subject. The powers and duties of the board relate to that subject. Every section of the act relates to that subject. Among other sections, section 9 empowers the board “to contract with any gas company to supply gas.” The terms are to be as they may deem expedient, except that the period must not exceed ten years. The act of 1888 was amended by chapter 361 of the Laws of 1989. This act is entitled “An act to amend chapter five hundred and seventy-six ■of the Laws of one thousand eight hundred and eighty-eight, entitled ‘An act establishing a board of improvement, and defining its powers and duties, and to provide for lighting the streets and other places in the town of New Utrecht, in the county of Kings.’ ” An examination of this act discloses but one subject, and that subject is the lighting of the town.

We now come to chapter 59 of the Laws of 1891. This act is entitled “An act,to amend chapter five hundred and seventy-six of the Laws of .eighteen hundred and eighty-eight, entitled ‘An act establishing a board of improvement, and defining its powers and duties, and to provide for lighting the streets and other places in the town of New Utrecht, in the county of Kings,’ as amended by chapter three hundred and sixty-one of the Laws of eighteen hundred and eighty-nine.” Special effort has been made to sustain the proposition that this act, because it authorizes an extension ■óf the contract made under the previous acts, embraces'more than one subject. This reasoning cannot be accepted. The subject of this act, as of the acts of 1888 and of 1889, is the lighting of the town. The previous act had authorized a contract. This act takes note of the fact that such a contract had been made. It confirms that contract, and it authorizes the board of improvement to extend it, giving the board the same discretion as to terms and conditions, which it had possessed and exercised in making the original contract. No subject is embraced in this law of 1891 which is not embraced in both of its predecessors. All three of the acts deal with the one subject,—that of lighting the town,—and in-each instance this subject is expressed in the title.

Judge Peclcham, writing the opinion of the court of appeals in People ex rel. Carter v. Rice, 135 N. Y. 483; 47 St. Rep. 702, said:

“Before courts will deem, it their duty to declare an act of legislature void as in violation of some provision of the constitution, a case must be presented in which there can be no rational doubt. Any incompatibility of the legislative enactment with the constitution must be manifest and unequivocal. Judge Denio, in People v. Draper, 15 N. Y. 546, expressed the rule in substantially the above language. " There is no doubt of its correctness, and I have heard no counsel who has challenged it. * * * Every intendment is in favor of the constitutionality of laws passed by the legislature, and courts will not adopt a doubtful construction for the purpose of invalidating them: A clear and substantial inconsistency must be found to justify their condemnation. Kerrigan v. Force, 66 N. Y. 381.”

The position thus far set forth is supported by abundant authority, some of quite recent date. In the case of People v. Board of Sup’rs of Westchester Co., 147 N. Y. 1; 60 St. Rep. 343, the court of appeals reaffirms with emphasis the important and established doctrine that:

“A statute can be declared unconstitutional only when it can be shown beyond reasonable doubt that it conflicts with the fundamental law; and until every reasonable-mode of reconciliation-of the statute with the constitution has been resorted to, and. reconciliation has been found impossible, the statute will be up- • held.”

Again, in Demarest v. City of New York, 147 N. Y. 203; 69 St. Rep. 550, the court of appeals holds that the constitutionality of an act of the legislature need not be passed upon by the courts until a case arises in which a decision of such question is unavoidable for the determination of the case itself, "i

Again, in the case of People v. Fitch, 147 N. Y. 355; 69 St. Rep. 706, the court holds that the act (chapter 537, Laws 1893) entitled “An act providing for ascertaining and paying the amount of damages to lands and buildings suffered by reason of changes of grade of streets or avenues, made pursuant to chapter 721 of the Laws of 1887, providing for the depression of railroad tracks in the 23rd and 24th wards in the city of New York or otherwise,” is not in contravention of the provisions of article 3, - section 16, of the constitution, in force at its passage, that no local, bill shall embrace more than one subject, and that shall be embraced in the title.

We do not deem it necessary, in our view of the case, to pass upon the legal effect of the clause in the act of 1891 ratifying and affirming the contracts made by the board. • The opinion delivered at special term covers all the charges asserted by the plaintiff in this action, and disposes of them clearly and satisfactorily. In view of the interests involved, we have thought it proper to give more extended examination to this case. Our views here expressed lead to an affirmance of the judgment appealed from,' with costs.

CULLEN, J.

I concur in so much of the opinion of the pre siding justice as holds that the evidence is not such as to justify us in reversing the decision of the trial court on the question of fraud in the execution'- of the contract in suit, I concur with him that the provision of the contract" for compensation to the gas company in the event of a change of the grade of streets which necessitates a removal of the pipes is not illegal. I also concur with the presiding justice that the agreement on the part of the board of improvement not to give its consent to any other gas or electric company to lay its pipes in the streets of the town was beyond the power of that board, and illegal. I„ agree with him that the provision of chapter 59, Laws 1891, attempting to confirm the contract, is void, as in conflict with the constitutional provision that no private or local bill shall embrace more than one subject, and that shall be expressed in its title. I think that the ratification of the contract previously made by the board was a subject not fairly covered by the title of the statute. I think, also, that the same argument and reasoning that condemn as invalid the confirmation of the contract also condemn as invalid the provision of the statute for an extension of the contract, as not fairly expressed in the title of the act. I am frank to say, however, that the invalidity of the confirmation of the contract can be placed on another ground not applicable to the extension of the contract. The provision of the contract that the board of improvement will not give a franchise to any other companies is practically a grant of -a monopoly or. exclusive franchise. The board of improvement having no power to make such an agreement, the validity of this provision must rest on the subsequent act of the legislature confirming the contract. Hence, if the gas •company possesses this exclusive franchise, it is solely by virtue of the statute of 1891. By section 18, article 3, of the constitution, the legislature is forbidden to pass a private or local bill granting to any private corporation, association, or individual any exclusive privilege, immunity, or franchise whatever. Therefore, this legislation is unconstitutional.

I am of opinion that the judgment should declare both the •covenant for an exclusive franchise and the extension of the contract between the improvement board and the gas company illegal and void, and I dissent from the prevailing opinion in so far -as it refuses to grant such relief.

BAETLETT, J., concurs in the foregoing opinion of Mr. Justice CULLEN., • - ■