author: Talcott, J.:

text:
    BAILEY HASCALL, Respondent, v. THE LIFE ASSOCIATION OF AMERICA, Appellant.

      Qorpwation — misnomer of, in d/raft — acceptance by agent — when cwporation hound, hy.

    “The West Tennessee Department of the Life Association of America,” a duly organized branch of the defendant, agreed, in July, 1872, to loan $10,000 to one Coche, to he secured by a mortgage upon real estate in Memphis, the money to be advanced October 15,1872, although the mortgage was delivered at the time of making the agreement. Subsequently, Cocke, desiring to use the money, drew a draft payable October 15,1872, addressed by mistake to “ The Western Department of the Life Association of America,” which was accepted by the general manager of the West Tennessee Department of defendant, 'as follows : “ Accepted. B. H. Robertson, Manager.” In an action brought upon the acceptance by an indorsee of the draft, held (1), that it was clear that the draft was intended to be drawn upon, and the acceptance made by, that branch of the defendant which was located at Memphis; (2), that, as it appears that Bobertson accepted the draft in the business and in behalf of the corporation, and intended and assumed to contract in its behalf, it was liable thereon.
    When a corporation authorized to make loans on certain securities has received and approved the same, although for its own convenience the payment of the money is postponed until a future day, it may bind itself by accepting a draft for the amount of the loan drawn by the borrower, payable on such future day.
    The supervising agent of the department, who is its executive officer, and who has the care and management of its business under the direction of the general board of managers, may accept such a draft, in the absence of proof of any restriction upon the general powers conferred upon him.
    Appeal from a judgment in favor of tbe plaintiff, entered upon the verdict of a jury.
    This action was brought upon a draft claimed to have been accepted by the defendant, a corporation organized under the laws of the State of Missouri.

      James Emott, for the appellant.
    The draft was not drawn upon the defendant corporation, but upon a body described as “ The Western Department of the Life Association of America.” There is no such department, and Mr. Robertson was not the manager of any such department, and therefore the paper is void. Mr. Robertson was not authorized as manager to accept drafts or bills of any description upon either the West Tennessee Department, or upon the Life Association of America, the defendant. {Hoyt v. Thompson, 1 Seld., 320; Risley v. The Indianapolis, Bloom-ington andWestern Railway Go., 8 S. C. [1 Ilun], 202; Adricmoe v. Roome, 52 Barb., 399.) The acceptance of B. H. Robertson, the manager, is the acceptance of Robertson individually, the word “ manager ” being merely desoriptio persona. (Moss v. Lwing-ston, 4 Comst., 208; Dewitt v. Walton, 9 N. Y.., 571; Pentz v. Stanton, 10 Wend., 271.) The defendant. had- not the power to make the acceptance in question either by its specific or incidental powers. (Bank of Genesee v. The Patohin Bank, 13 N. Y., 314.)

      John E. Pa/rsons, for the respondent.
    The -draft clearly indicates that it was not Robertson who* was to accept it, but the company of which he was an officer. The acceptance, therefore, was the acceptance of the defendants, not the acceptance of Robertson. (.Rat/ibon v. Budlong, 15 Johns., 1; Safford v. Wyokoff, 1 Hill, 11; Olcott v. The Tioga R. R. Go., 27 N. Y., 546, 559, approving the above cases; Baboook v. Beaman, 11 id., 200.) A mere mistake may always be corrected, and parol evidence is admissible for the purpose. (Ohitty on Bills, 156, citing Willis v. Barret, 2 Stark., 29; Meade v. Young, 4 Term, 28.) This is not a case of parol evidence to charge a defendant upon a bill which does not show upon its face that it was intended that it should be accepted by him. {Pentz y. Stanton, 10 Wend., 275.) At the most it was but a mistake of name, and the maxim is nil faeit error nominis, cwn de corpore net persona, constat. (Broome’s Maxims, 498; Lcmg-don v. Aster’s Executors, 3 Duer, 447, 610.) The draft was filled out by Mr. T.obey, the treasurer of the defendant’s West Tennessee department. It was be who saw fit ■ to use the term “ Westera Department.” A party may become bound as the acceptor of a draft by any designation he thinks proper to adopt. {Brown v. Butchers and Drovers’ BcmJc, 6 Iiill, 443; Dodgers v. Goit, id., 322; Dewitt v. Walton, 9 N. Y., 571, approving the preceding cases.) The mortgage and note of Cocke and wife were received by the defendants, and are now held by them, in the ordinary course of their authorized business. As they had the power to loan, so the defendants had the right to agree to malee a loan {Halstead v. Mayor, etc., 3 N. Y., 430; Barry v. Merchants’ Ex. Go., 1 Sandf. Ch., 280, and cases cited; Thompson v. The N. Y. and H. B. M. Go., 3 id., 625); and if they had the right to agree to make a loan, of course they had the power to fix the time when the money should become payable. They could give a check payable at a future day, and so they could give for it the acceptance in question.
   Talcott, J.:

The defendant is sued as the acceptor, under the name of the Western Department of the Life Association of America, of a negotiable draft, by an indorsee. Various objections to the recovery are made, which will be considered in their order. It is objected that the name under which the acceptance was made is not the corporate name of the defendant, and, therefore, that the acceptance in question is not the obligation of the defendant. The defendant is a corporation, created by an act of the legislature of Missouri, with the general purposes and powers of a life insurance company. The charter expressly authorizes the company to establish. “ organized departments and branches of the association ” in each State, territory or foreign country in which it shall transact business, and further provides that “ the general board of directors may create departments of the association, and designate the territory to be included within the same, and the names by which they shall each be known.” The corporation established thirty-three such depart-merits, or brandies, in different localities. One of these departments was located at Memphis, and was usually described as the “ W est Tennessee ” department. The draft in question was drawn at Memphis, and addressed to “ Western Department of Life Association of America.” It appeared that the State of Tennessee was divided into three departments, respectively known as the east, middle and west, and the office at Memphis is described by the manager of the company at that place, as the office for the “ Western Department.” The origin of the draft was as follows: The defendant had, previous to July 6th, 1872, agreed to make a loan of $10,000 to Mr. Thomas H. Cocke, on the property of Mr. and Mrs. Cocke, at Memphis, and the mortgage had been executed and delivered to the defendant, but, by the agreement of the parties, the money was not to be actually advanced until the 18th day of October, 1872. For his own convenience, Mr. Thomas H. Cocke desired to avail himself of the funds before the time when they were to be actually advanced by the defendant; and after the title papers had been examined and approved by the proper officers of the company, and the arrangement was fully consummated, with the exception of the actual advance of the money, Mr. Cocke drew the draft in question, payable on the 15th day of October, 1872, for $10,000, the amount of the loan agreed upon, payable to the order of “ J. S. Hatcher & Go.” The draft was accepted in the following form: “Accepted. B. II. Robertson, Manager.” Mr. B. H. Robertson, who accepted the draft, was the manager of the department located at Memphis, and the draft was there accepted by him, with the knowledge and consent of Mr. Tobey, the treasurer of that department. It did not formally appear in the evidence that the general board of directors had designated the name by which the department located at Memphis was to be known. From the facts, it is clear that the di’aft was intended to be drawn upon, and the acceptance made by, that branch of the corporation which, in pursuance of the charter, was located at Memphis. It was so understood by all the parties, and the draft was drawn and accepted as incidental to the business of that department or branch. Under these circumstances, there can be no doubt'that, if valid at all, it was the contract of the defendant, notwithstanding the misnomer, if such there was. A party may be bound as an acceptor by any name or designation be may see fit to adopt, provided it clearly appears, by extraneous evidence, who was intended. (Brown v. Butchers and Drovers' Bank, 6 Hill, 443; Rogers v. Coit, id., 322; De Witt v. Walton, 9 N. Y., 571.) The party who has intended to contract by a certain designation, is estopped to deny that the name by which he assumed to enter into the contract is the appropriate appellation. This doctrine applies as well to corporations as to individuals.. It is claimed that the acceptance of Robertson, with the addition to his name of the word “ manager,” does not purport to be the contract of the company, but that the name of his office is merely a descrvptio personae, and that the acceptance is binding on Robertson personally, instead of the defendant. When the transaction is shown to be in the business of a corporation, and on its behalf, the signature of its proper agent, with the name of office attached, is, in legal effect, the contract of the corporation, and not of the officer individually. Robertson intended and assumed to contract in behalf of the corporation, and the acceptance was received as the contract of the corporation. (Babcock v. Beman, 11 N. Y., 200; Brockway v. Allen, 17 Wend., 40; Bank of Genesee v. The Patchin Bank, 13 N. Y., 309; S. C., 19 id., 312.)

This acceptance then was, in point of form, sufficient to charge the defendant, and the only remaining question isas to its validity: Whether the defendant can be bound as a party to a negotiable security, and whether Robertson had authority so to bind it ? The defendant had agreed to make the loan in question. To make such loans on such securities, was within the purview of its chartered powers. For its own convenience it postponed the actual advance of the money till a future day. It had received and approved the securities, and there can be no doubt that its mere promise, or agreement, to advance the money on the fifteenth of October was valid and binding. In such a case it is well settled that a corporation may bind itself by becoming a party to a negotiable security incidental to its legitimate business. (Mott v. Hicks, 1 Cow., 513; Barker v. Mechan. Ins. Co., 3 Wend., 96.)

The authority of Robertson to act for the defendant in the premises, seems to be sufficiently clear. The charter of the defendant provides that “ there shall be in each department a supervising agent, who shall be known as the general manager of said department, and who shall have the care and management of the business of the department, under the direction of the general board of directors. *• * * He shall be the executive officer of the department.” Robertson was the officer thus described and provided for, and he states, as the facts and circumstances show, that -he accepted the draft as such manager, for and in behalf of the defendant. Tinder these circumstances he had. the power to accept the draft in behalf of the company, in the absence of any proof of any restriction upon the general powers conferred upon him by the charter and the nature of his office. The title to the draft was legally transferred to the plaintiff, and as the draft and acceptance were valid in form and substance, and founded on a good consideration, within the legitimate purview of the powers of the defendant, it was a valid negotiable instrument. The acceptance was indorsed by the drawees and delivered to the City Bank of Memphis. It is claimed that it was agreed by the president of that bank, who was also the treasurer of the defendant’s branch at Memphis, that the paper should not go into general circulation, but should be held by the bank, as security for advances to be made by that bank to the drawees. But it appeared that the draft and acceptance were offered by the cashier of the City Bank of Memphis to P. M. Myers & Co., to be discounted by them. They were the correspondents, at New York, of the bank. Myers & Co. refused to discount the draft. The cashier of the City Bank of Memphis wrote to the president of the defendant at St. Louis, giving a full description of the draft and acceptance, and inquiring if the defendant would discount it. To this the president replied : “ The draft being for a loan, should be presented at Memphis; if securities are proper there is no reason why the draft should not be paid at maturity.” Myers & Co. agreed to hold the draft and acceptance as collateral for advances to the City Bank; and- the cashier of the City Bank of Memphis exhibited the dispatch from the president of the defendant to Myers & Co., after which they advanced . to the City Bank of Memphis the full amount of the acceptance. It is not claimed that Myers & Co. had any notice of the agreement not to put the draft into general circulation, or that there was any restriction upon, or qualification of, the ownership of the draft by the City Bank of Memphis. Myers & Co., therefore, as the jury has found, became the holders for value of the acceptance before maturity, and without notice of any circumstance affecting the title of the City Bank of Memphis, as the holder of the draft1 and acceptance. The plaintiff claims under Myers & Co., and can assert their title, and is entitled to the protection to which they would be entitled, as the holders of the paper for value and without notice of any defense. It therefore becomes immaterial to examine the details of the charge upon the question of the estoppel claimed. The verdict and judgment seem to have been correct, and the judgment is affirmed.

Present- — Baenaed, P. J., and Taloott, J.

Judgment affirmed, with costs.


source: Caselaw Access Project

author: Talcott, J .:

license: Public Domain

text:
    CYRUS LAWTON, Appellant, v. JAMES GREEN, Respondent.

      Try unction— order of reference — when objection to, com be raised only on appeal from it— Oowt of equity —• power to coward damages when injunction has been improperly allowed— TPndertaleing — Action for malicious prosecution.

    Where an order of reference is made to ascertain the damages sustained by defendant by reason of the issuing of an injunction, the question whether such order was properly made before the entry of final judgment in the action in which the injunction issued, can only be raised on an appeal from the order of reference itself.
    The authority of a court of equity to award damages to the defendant in an action before it, in consequence of damages which he may have sustained by reason of the issuing of an injunction in such action, rests wholly upon the provisions of the Code of Procedure; and the amount to be recovered on the undertaking given upon the granting of the injunction order, is limited to the sum specified in the undertaking.

      It seems, that a defendant who has been restrained by injunction and sustained damages thereby, may maintain an action for indemnity in the nature of an action on the case for a malicious prosecution, but such action will be decided under the rules applicable to such latter action.
    Appeal from an order of the Special Term, confirming the referee’s report of the damages sustained by defendant by reason of the issuing of an injunction, subsequently vacated in this action.

      The order of reference, without referring to the bond given to the defendant by the plaintiff, with one surety, when the injunction was granted, simply directed “ that it be referred to John Fowler, Jr., Esq., of the county of Westchester, counselor at law, to ascertain and report to this court,' what damages the defendant has sustained by reason of said injunction, and report the same without delay.”
    W. D. Lawton, for the appellant.
    No assessment of damages is proper, and no recovery can be had herein until it shall affirmatively appear that there is a judgment in the action, by which it shall appear that the plaintiff was not entitled to the injunction as granted. (2 R. S., 360; Wickes v. Southwiches, 12 How. Pr., 170; Leavitt v. Dabney, 9 Abb. Pr. [N. S.], 373, 384; Sherman v. W. Y. Mills Go., 11 How. Pi'., 269 ; Methodist Churches v. Barker, 18 N. Y., 465 ; Hoff, on Ref. [ed. 1875], 134; 3 R. S. [5th ed.], 638, § 10.) This report simply states an amount as ascertained and determined, and does not inform this court, to whom the report is made, of what said sum is made up, so as to enable the court to see whether the same is just and proper, and according to the law and the facts as developed on said reference. (Johnston v. Ltea/rdon, 1 Molloy’s Ch., 54; Edw. on Ref., 73.) There was no inherent power in the Court of Chancery to award to a defendant damages by reason of an injunction, and prior to the adoption of rule 31 of that court, it had no such power. Rule 31 of the Court of Chancery was adopted, recognizing such to be the law, for the express purpose of giving to a defendant a means of recovering from the plaintiff his damages by reason of an injunction improvidently granted. (Cayuga Bridge Co. v. Magee, 2 Paige, 116, see opinion of Chancellor Walwobth, page 122; affirmed, 6 Wend., 85; Leavitt v. Dabney, 40 How. Pr., 277, 280-284; S. C., 9 Abb. [N. S.], 373, 378-383 ; Garde v. Sheldon, 3 Barb., 232.) Section 222 of the Code took the place of such rule of chancery, and independent of that section, this court has no greater or other power than the Court of Chancery had, independent of such rule of chancery, and this court has the same powers under such section that said Court of Chancery had under such rule. (Leavitt v. Dabney, 40 How. Pr., 286 ; S. O., 9 Abb. [N. S.], 383 ; Garde v. Sheldon, 8 Barb., 232, 235.) .The undertaking, with the stipulation therein contained under such section of tlie Code, is, therefore, the only authority or foundation for the assessment of damages against the plaintiff or his sureties by this proceeding. {Garde v. Sheldon, 3 Barb., 232-235;. Leavitt v. Dabney, 40 How. Pr., 287 ; S. 0., 9 Abb. [N S.], 373, 383, 384; Patterson v. Bloomer, 9 Abb. Pr. [N. S.], 27, 34.) As the undertaking gives to this court the power, arid the only power it possesses for the assessment by reference of damages by reason of an injunction to a defendant against an unsuccessful plaintiff, so this court, in any event, is restricted to its terms, and cannot, and has no power to confirm an assessment of damages for more than the amount stipulated in such undertaking, either against the plaintiff or sureties. (See Hovey v. Rubber Tip Pencil Go., N. Y. Supr. Ct. at Gen. Term, Nov., 1874.)

      James Green, respondent, in person.
    This court is' a court of original general jurisdiction, and has all the powers and jurisdiction of the late Court of Chancery, and had jurisdiction to make the order to assess the defendant’s damages in these proceedings. When the court has gained jurisdiction of a cause for one purpose, it will retain it for general relief. (Willard Eq. Jur., 48.) The plaintiff, in.coining into this court and obtaining its extraordinary process of injunction, submits to its jurisdiction and consents to be governed by its rules, and this alone would give the court jurisdiction in this matter. (High on Inj., 557, 962, aud cases there cited.) The plaintiff having caused the order of reference to be entered, cannot object to the jurisdiction of the court. (3 Code R., 139; Const., art. 1, § 2.) The procedure before the referee, was conducted in the same manner as like proceedings before the masters in the late Court of Chancery. {Rose v. Post, 56 N. Y., 603.) In the case of Patterson v. Bloomer (37 How. Pr., 454; 38 id., 280), Judge INGRAHAM, in delivering his opinion, said : “ The court may order the plaintiff to pay the damages assessed, and if. he refuses, may enforce the payment by attachment. The defendant may have an order directing the payment of the money within thirty days after service of notice of this order, or in default that an attachment issue.” (See, also, Willett v. Scovill, 4 Abb. Pr., 407.) The undertaking is given for the purpose of providing the defendant with additional security against any loss he may sustain by reason of the injunction, and not for the purpose of fixing or limiting the plaintiff’s liability. (Powell v. Walworth, 2 Mad. Oh., 183.)
   Talcott, J .:

This is an appeal from an order confirming the report of a referee, to whom it was referred to ascertain and report the amount of damages sustained by the defendant in consequence of an injunction, issued in this action at the instance of the plaintiff. TJpon the granting of the injunction order in this action, the plaintiff with a surety entered into an undertaking under section 222 of the Code. The amount specified in the undertaking was $250, and the terms of the undertaking were, that the plaintiff would pay to the defendant such damages, not exceeding the said sum of $250, as he might sustain by reason of the said injunction, if the court should finally decide that the plaintiff was not entitled thereto. The original action was referred to a referee, who rendered a decision, in March, 1871, that the complaint be dismissed, with costs. Thereupon, and on the 5th of April, 1871, no final judgment haying then been entered in the action, an order was made referring it to a referee to ascertain and report what damages had been sustained by the defendant by reason of the injunction. The referee proceeded and took testimony on the subject, and reported that he had ascertained and determined that the damages sustained by the defendant, by reason of the injunction, were $750. On the coming in of this report of the referee, an order was made confirming the same and assessing the damages, sustained by the defendant by reason of the injunction, at $750, with ten dollars costs of the motion, and $380.38 cents for the disbursements and referee’s fees paid in the reference; and it was ordered that the plaintiff pay to the defendant the sum of $1,140.38, within thirty days after the service upon him of a copy of the order. This is the order appealed from. The plaintiff insists that the order of reference was erroneous, by reason of its having been made before final judgment in the action. This objection cannot be considered on this appeal. To raise this ques_ tion the plaintiff should have appealed from the order of reference itself. The undertaking was limited to the amount of $250, but the referee has reported the damages at $750, and the order appealed from peremptorily requires the payment of the latter sum, with the costs and expenses. It seems to have been settled in this State, that a court of equity could not award damages to a defendant by reason of an injunction improperly obtained under its general powers. To obviate this difficulty and afford parties proceeded against by injunction a summary means of obtaining indemnity, in case it should eventually appear that the complainant was not'entitled to an injunction, the late chancellor established the thirty-first rule of the late Court of Chancery. (Cayuga Bridge Co. v. Magee, 2 Paige, 116; S. C., 6 Wend., 85; Leavitt v. Dabney, 9 Abb. Pr. [N. S.], 373; S. C., 40 How. Pr., 280; Garcie v. Sheldon, 3 Barb., 232.) It would seem, therefore, that the authority of a court of equity to award damages to the defendant, in an action before it, in consequence of damages which he may have sustained by reason of the issuing of an injunction in the action, rests entirely upon the provisions of the Code of Procedure, which are substituted for the thirty-first rule of the late Court of Chancery. The section (§ 222), under which the undertaking is required, expressly limits the liability assumed by the undertaking to an amount to be specified therein; and, as the power of the court to award damages depends upon the provisions of that section, we think it manifest that the amount awarded, and by the court ordered to be paid, must be limited to that sum. The report of the referee, however, is not necessarily so limited. He was ordered to report the amount of damages.actually sustained, whether more or less than the amount specified in the undertaking. Doubtless, a defendant who has been restrained by injunction and sustained damages thereby, could maintain an action for indemnity, in the nature of an action» on the case for a malicious prosecution, as in other cases where a party is damnified by an unfounded suit. But in such case the elements to sustain the action must exist, as in other cases where an action for malicious prosecution can be maintained.

The amount ordered to be paid then, in this case, ought to be reduced by the difference between the $750, the amount of damages reported by the referee to have been sustained by the defendant, and the sum of $250, the amount specified in the undertaking. As the assessment and order is made against the plaintiff in the action, against whom the court has the power to award the costs of any proceedings in the action, the order as to costs and disbursements was proper. The order appealed from, therefore, should be reversed fro tanto. The above considerations seem to cover all the material objections to the order. As to the objection that the referee does not, in his report, indicate the items of damages allowed by him in his estimate, the remedy in such a case is to apply for an order for a further and more specific report. But in this case it is probable that the reduction of the amount ordered to be paid will render such further proceedings unnecessary. The amount ordered to be paid, in and by the order appealed from, is reduced by the sum of $500, and affirmed for the residue, with costs of this appeal to neither party.

Present ■— Barnaed, P. J., and Taloott, J.

Ordered accordingly.


author: Taloott, J.:

text:
    THE RUSSELL AND ERWIN MANUFACTURING COMPANY, Respondent, v. ZIBA CARPENTER, Appellant.

      Indorsee —judgment against indorser — effect of.

    The recovery of a judgment by an indorsee against his indorsers on a promissory note, while it remains unsatisfied, docs not operate as a retransfer of the note to such indorsers, and does not prevent the indorsee from bringing an action against the maker and recovering judgment therein against him.
    Appeal from a judgment in favor of the plaintiff, entered on the decision of the court, in an action brought upon a promissory note made by defendant to the order of Taylor &. Graff, and by them indorsed to the plaintiff.

      J. 0. Bykman, for the appellant.
    The mere acceptance of the note by the plaintiff for the debt of Taylor & Graff was not a payment of the debt, in the absence of any agreement to receive it as such. (Porter v. Taloott, 1 Cow., 384; Oloott v. RatJibone, 5 Wend., 490; Vail v. Foster, 4 N. Y., 312; Tv/rner v. Bank of Fox .Lalce, 4 Abb. Ot. App. Dec., 436; Johnson v. Bank of North America, 5 Robt., 590.) The conduct of the plaintiff, in charging bach the note and bringing an action on tbe original debt, will be considered as evidence that the note of the defendant was not taken as payment of the debt. (Van Fpps v. JDillaye, 6 Barb., 274.) Taylor & Graff were liable to the plaintiff as indorsers of this note, and when the plaintiff commenced its action against them, they had the right to have Carpenter’s note surrendered to them, because the plaintiff elected to hold them upon the original account. (Story on Partnership, § 404.) As Taylor & Graff had the right to have Carpenter’s note surrendered to them, they had the right to collect the money on it as they did, and the mere possession of the note was immaterial.

      Henry W. Isaaeson, for the respondent.
    The denial in defendant’s answer of the allegation in plaintiff’s complaint “that said note has not been paid nor any part thereof,” is a denial of an immaterial allegation in the complaint and forms no issue. Payment is matter of defense, and to be available to defendant must be pleaded affirmatively in the answer. (Keteltas v. Myers, 19 N. Y., 231; JMeJKyring v. Bull, 16 id., 297; Frey v. JBennet, 5 Sandf., 54.) The denial in defendant’s answer of the allegation in plaintiff’s complaint “that the whole of said sum of seventy-five dollars is due and owing to plaintiff thereon,” is a denial of a mere conclusion of law and forms no issue. Such an allegation cannot be denied in the answer. (MeKyrmg v. Bull, 16 N. Y., 297: FosdieTc v. Groff, 22 How. Pr., 158 ; Drahe v. Goohrofl, 10 id., 377.) The note in suit may be considered as having’ been transferred by Taylor & Graff to plaintiff, as- collateral security for the indebtedness which was the consideration of the transfer, and, after the plaintiff had sued the indorsers, payees of said note, upon the original indebtedness and failed to collect, the plaintiff had a right to resort to the maker of the note for payment, and by suing on said original indebtedness plaintiff did not waive any rightwhich it had to do so. (Story on Promissory Notes, §§ 115 a-409.) There is a difference between the extinguishment of a liability upon a promissory note and a satisfaction of it. (Id., §§ 403-409.) The holder of a note, after suing the payee and failing to collect, has a right to sue the maker upon his liability to him, and if the maker pays the note to such holder, it is a satisfaction of the note, but not otherwise. (Id., §§ 401-409.) The plaintiff had a right to release the payees who indorsed it, absolutely, and to look to the maker alone for payment. (Id., § 409.) The maker of a note is only obliged to pay the holder, who is the prima facie owner and entitled to payment, and if he pays any one else he must pay it over again. (Id., § 113.) The consideration of tlie note, in this case the consideration for the indorsement, is the indebtedness, and not the note itself, which'is only the evidence of the indebtedness. ( Wmsted- Bank v. Webb, 39 N. Y., 325.)
   Taloott, J.:

The defendant is sued as the maker of a promissory note, which he made, for value received, payable to the order of one Taylor & Graff. Taylor & Graff duly indorsed and transferred the note to the plaintiff. The note not being paid at maturity, the plaintiff charged it in account to Taylor & Graff, against whom the plaintiff had a further account, and brought an action against them on the entire claim, including the note, and recovered judgment for the full amount; but no part of the judgment has been paid, or in any manner satisfied. On these .facts the defendant seeks to defend this action, upon the ground that, by reason of the fact that the plaintiff recovered judgment upon it against Taylor & Graff, they became entitled to a return and retransfer of the note. This is a mistake. By the recovery of the judgment for the amount of the note against Taylor & Graff, although the demand against them as indorsers became merged in the judgment, the liability of the maker remained unaffected. By the indorsement and transfer of the note to the plaintiff, whether such transfer was in payment or only as security, the plaiutiff became entitled presumptively to all the security afforded by the note, not only as against the indorsers, but as against the maker, and the recovery of judgment against the indorsers, without any satisfaction, did not operate* either at law or in equity, as a retransfer of the note to Taylor & Graff, the indorsers, any more than though the action had been brought against them upon the note alone; and the plaintiff can still have recourse against, the maker to recover the amount of him.

The judgment is correct and must be affirmed.

Present — BaeNAed, P. J., TappeN and Taloott, JIT.

Judgment affirmed, with costs.


text:
    MARY E. DITCHETT, Administratrix, etc., Respondent, v. THE SPUYTEN DUYVIL AND PORT MORRIS RAILROAD COMPANY, Appellant.

      Railroad company — duty of, to maintain fences — Intoxication — not negligence.

    Every company organized under the general railroad act of this State, is bound to erect and maintain fences on the side of its road, and the fact that it has leased its road, or is no longer in possession of it, does not relieve it from the obligation imposed by the act.
    In an action brought to recover damages for personal injuries caused by the negligence of the defendant, the mere fact of intoxication will not establish want of ordinary care. The jury must determine whether the intoxication contributed to the injury; if it did not, it is of no importance.

    Appeal from a judgment in favor of the plaintiff-, entered upon the verdict of a jury.

      Frank Loomis, for the appellant.

      Ghaimoey Smith, for the respondent.

       See, to the same effect, Healy v. The Mayor, 10 S. C. (3 Hun), 708. — [Rep.

   Talcott, J.:

The defendant, in constructing its road, made a deep cut across Macomb avenue, a public highway in Westchester county. Going along this avenue, upon a stormy and somewhat dark evening, the plaintiff’s intestate walked down the declivity where the railroad intersects the avenue, fell off the perpendicular rocks at the end of the declivity, and was killed. The action was brought for negligence on the part of the railroad company in suffering the cut to remain open, exposed, and without proper protection or notice to persons passing along Macomb avenue. It appeared in evidence that a portion of a fence which had been erected across the avenue was gone, and, from circumstances, that the' deceased must have walked through the opening. The whole question of negligence was fairly submitted to the jury, and there are only two exceptions which call for any remark. The defendant claims that it had leased its railroad to the New York Central and Hudson River Company, which, at and before the accident in question, was operating the road, and that when so leased the opening was protected by a good and substantial fence ; consequently, that the negligence was on the part of the New York Central and Hudson River road, and that the defendant is not liable. It is not set up in the answer that the defendant had transferred the possession of the road to any other corporation, nor is any intimation given in the answer but what the defendant was in the full enjoyment of its franchises and the occupation of the road, when the disaster occurred. It is probable, therefore, that this defense, that the defendant had leased the road, and it was in the occupation of another party at the time of the alleged negligence, could not be available for want of any allegations suggesting such facts. But, however that may be, the railroad act provides that every corporation, formed under the same, shall erect and maintain fences on the sides of its road, of the height and strength of a division fence required by law. Though the statute makes the lessees of a road also liable to erect and maintain such fences, there is no provision by which the constructors of the road are absolved from the obligation positively imposed by the statute upon every corporation formed under the act. The excavation across the highway was in the nature of a nuisance, and was strictly such, unless the highway was restored, so that its usefulness was not impaired. One who erects a nuisance is liable for the continuance of it, though he has demised the premises, or even if he has erected it on the land of another, and has no right to enter and abate it. (Fish v. Dodge, 4 Denio, 311.) We do not think a railroad company absolves itself from liability for accidents growing out of the mode in which the road was constructed, by leasing its road to another company.

There was evidence tending to show that the deceased was intoxicated at the time of the accident. On this subject, the court had charged the jury, in substance, that if the deceased was guilty of any negligence contributing to the accident, the plaintiff was not entitled to recover, and that if he was intoxicated, that was no excuse for his omission to exércise the prudence and foresight of a sober man, and that if a sober man ought to have seen the break in the fence, but the deceased'did not, the plaintiff was not entitled to recover. The counsel for the defendant requested the court to charge, “ that intoxication of tbe deceased, if he was intoxicated, if it tended to obscure his faculties, was, under the circumstances, of itself negligence.” The judge refused so to charge, as matter of law. It is essential to the defense, founded on the negligence of the party injured, that it should appear that the particular negligence in question has, in some manner, contributed to the injury for which the action is brought. The mere fact of intoxication will not establish want of ordinary care. The jury must determine whether the intoxication contributed to the injury, and, if it did not, it is of no importance. (Alger v. Lowell, 3 Allen, 402; Stuart v. Machias, 48 Maine, 477.) In the last case cited, it was held that an instruction that intoxication would constitute such a want of ordinary care as would preclude a recovery, was properly refused.

The judgment should be affirmed.

Present — Talcott and Tappbn, JJ.

Judgment and order affirmed, with costs.


author: Baenaed, P. J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK, Defendants in Error, v. ROBERT BREWSTER SATTERLEE, Plaintiff in Error.

      Indictment — rape amd assamlt — election — Testimony of one jointly indicted — .Record of prior conviction of petit larrcmy— when admissible.

    Where an indictment contains two counts, one for rape and one for an assault with intent to commit a rape, the district attorney will not he required to elect on which count he will proceed.
    Upon the separate trial of one of two persons -jointly indicted for rape, his co-indictee is a competent witness.
    Where upon a trial for rape the prisoner is sworn and testifies in his own behalf, a record of his conviction of petit larceny is admissible as affecting his credit.
    Writ of error to the Court of Sessions of the county of Suffolk, to review the conviction of the plaintiff in error of rape.
    -, for the plaintiff in error.
    ' J. E. Tuthill, for tbe defendants -in error.
   Baenaed, P. J.:

The prisoner was indicted at the Suffolk Sessions. The indictment contained two counts, one for rape and one for an assault with intent to eoinmit a rape. The jury convicted him of rape.

The prisoner’s request that the district attorney be required to elect on which count he should proceed, was properly denied. There was but one transaction out of which the indictment grew. Two counts were drawn solely to meet the different aspects in which the evidence might be viewed by the jury.

George Jones, jointly indicted with the prisoner, was a proper witness on the prisoner’s separate trial. (Wixson v. The People, 5 Park., 119.)

The only remaining question is as to the admission of the record of conviction for petit larceny. The prisoner was sworn on his own behalf, and very fully denied his guilt. To affect his credibility, the people offered in evidence a record of conviction, at the Suffolk Sessions, of Brewster Baily, alias Brewster Satterlee, for larceny, second offense, on plea of guilty. Proof was given on the trial that the prisoner was called by the names of Brewster Baily and Brewster Satterlee. We think the evidence was properly received. Such evidence is held admissible to affect the credit of a witness, in Carpenter v. Nixon (5 Hill, 260). It was received in Lake v. The People (1 Park. Cr., 495, 523), and on appeal no dissent was expressed to its reception, though it was pronounced weak evidence in that case, as having been rendered twenty-five years before the witness was sworn. In Neweomb v. Griswold (24 N. Y., 298), the Court of Appeals say: “It seems that proof of conviction for petit larceny was competent by way of impeachment.” In the same case the general rule is stated, that evidence to impeach a witness must be confined to the witness’ general reputation. The defects in the record, if any, do not affect the question.

The conviction should be affirmed.

Present — BaeNaed, P. J., Tappen and Taloott, JJ.

Conviction affirmed.


author: Barnard, P. J.:

text:
    STEPHEN H. POWELL, HENRY WELLS and CORNELIUS FERGUSON, Plaintiffs in Error, v. THE PEOPLE OF THE STATE OF NEW YORK, Defendants in Error.

      Special Terms of Oyer and Terminer —■ drawing of jwrors for — challenge to the a/rray — Repeal of statute before trial.

    Where a special term of the Court of Oyer and Terminer is appointed by the governor, in pursuance of section 14, chapter 408 of 1870, the names of the jurors must be drawn fourteen days before the holding of the court, and a challenge to the array for a failure so to do, is proper, and should be sustained.
    No conviction can he had upon an indictment for a conspiracy to violate the provisions of a statute which has been repealed before the trial.
    Writ of error to review tbe conviction of the plaintiffs in error, of misconduct in office and conspiracy.

      Tracy, Gatlin c& Brodhead, for the plaintiffs in error.

      Winchester Britton, district attorney, for the defendants in error.
   Barnard, P. J.:

The challenge to the array by the defendants in the court below, on the ground that the names of the jurors were not drawn fourteen days before the holding of the court, should not have been overruled. Section 14 of chapter 408 of the Laws of 18T0, authorizing the governor to appoint special terms of the Court of Oyer and Terminer, does not shorten the prescribed period that must intervene between the drawing of jurors and the session of the court. It was intended that both the people and the accused should have fourteen days for examination of the jury list, and for inquiry as to character, qualifications and possible bias. But even if the jurors had been legally drawn and summoned, a conviction of the offense charged in the indictment could not be sustained. The plaintiffs in error, who were commissioners of charities of the county of Kings, were convicted of a conspiracy to violate section 3 of chapter 491 of the Laws of 1871. The material portion of that section reads as follows : “ The said board shall from time to time, as may be necessary, advertise in the corporation papers of the city of Brooklyn, for not less than ten days, for proposals for all such articles as shall be necessary to be used in and for the relief and support of the poor of the county of Kings,” etc.

They did not advertise in any paper for any proposals whatever. In 1871, before the trial and conviction of the plaintiffs in error, the portion of section 3 above quoted, was repealed. The plaintiffs in error could not legally be tried and convicted for the violation of a statute that had been repealed.

The judgment below should be reversed, and plaintiffs in error should be discharged.

Present — BabNaed, P. J., Tappen and Talcott, JJ.

Conviction reversed.


author: BaeNaed, P. J.:

text:
    JOHN PICKERSGILL, as Committee, etc., and another, Respondents, v. CASSIUS H. READ, Impleaded, etc., Appellant.

      Qommitiee of lunatic — power to release from lien of mortgage — rights of bona fide pw'chaser.

    The committee of the estate of a lunatic, who has invested a portion of the estate" in a mortgage, may release a portion of the premises covered thereby without applying to the court for permission so to do.
    Where such release has been recorded, the fact that it was given without consideration will not render it invalid as against a bona fide purchaser for value.
    Appeal by the defendant Read from a judgment in favor of the plaintiffs, entered upon the report of a referee, in an action brought to foreclose a mortgage given to secure the payment of $40,000, belonging to the estate of Charles E. Pickersgill, a lunatic, which had been loaned by John Pickersgill, as committee of said lunatic.

      O. W. Ootterill and W. O. Bartlett, for the appellant.

      Robert Jackson and James Emott, for the respondent.

      Albert Mathews, for the Society of the New York Hospital.
   BaeNaed, P. J.:

John Pickersgill, on the 8th of December, 1859, was appointed by the Supreme Court a committee of the person and estate of his son, Charles P. Pickersgill, a lunatic.

Out of the personal estate of the lunatic he loaned, as committee,-$40,000 to John A. Pickersgill, another son.

On the 22d February, 1864, John A. Pickersgill, by John Pick-ersgill, his attorney in fact, conveyed a portion of the premises to Samuel A. Nolan for a valuable consideration, and at the same time John Pickersgill, as committee, released the premises described in the deed to Nolan from the operation of the mortgage so held by him as committee. • The appellant Bead is now the owner of the premises, having acquired the same in good faith and for a valuable consideration. The deed and release were both recorded long before Bead took his title.

The referee held this release to be void, because there was not proven to have been an order of the court authorizing the same. I think this decision erroneous. The statute authorizing the Supreme Court to take care of the real and personal estate of a lunatic, requires the committee to file an inventory of the real and' personal estate. That when the personal estate is insufficient to pay debts of the lunatic, the committee shall apply by petition? under oath, for leave to sell or mortgage the real estate, stating the application which has been made of the personal estate to the payment of the debts of the lunatic. Upon this petition the court may order a lease, mortgage or sale, if it shall appear that the personal estate has been applied to the payment of the debts, and not otherwise.

This seems to give power to the committee to use up the personal estate in payment of debts without order from the court.

That the committee has the legal title to the lunatic’s personal property, is to be sustained by decisions under the statute in all analogous cases. Testamentary guardians are held to have legal title to the personal property of their wards. The committee loaned the money without the order of the court; he selected the security which he would take. He had the undoubted power to collect the money loaned. It would be a harsh principle to make a bona fide, purchaser on the faith of the record suffer, because a-trustee released a portion of the mortgaged premises without payment.

The purchaser ought to be able to rely upon the presumption that the committee either received payment, or, for some good consideration, relinquished a portion of the security. The precise point has been decided in Massachusetts under the statute which is very similar to ours. (Ellis v. Proprietors, 2 Pick., 246.)

The judgment should be reversed and a new trial granted as to appellant, at Special Term, and order of reference vacated, costs to abide event.

Present — Barnard, P. J., Tappen and Taloott, JJ.

Ordered accordingly.


author: TappbN, J.:

text:
    AUGUSTA H. STAPLES, Appellant, v. JOHN B. J. FENTON and others, Respondents.

      Possession — when not notice.

    Possession, to operate as notice, should be inconsistent with the title. A, the , owner in fee and in possession of property, conveyed it to B, taking back a lease for life and retaining possession of the property. B, before the lease was recorded, gave a mortgage on the property to 0, who made reasonable inquiries of B as to liens, etc.: held, that the possession of A was not such as to give notice to 0 of her rights in the premises.
    Appeal from a judgment entered in an action brought to foreclose a mortgage on property in Orange county.

      Qassedy dh Brown, for the appellant.
    Under the circumstances of • this case, Mrs. Eenton’s possession was not such notice as to give her unrecorded life-lease priority over this mortgage. (Cook v. Travis, 22 Barb., 338 ; S. 0., 20 N. Y., 400.) This mortgagee used really more diligence than was required. She had her father make a search in the clerk’s office, which disclosed this deed and that there was nothing recorded subsequently; and, previous to the mortgaging, her father asked the owner if it was all free and clear, and was informed it was.

      H. Reeve, for the respondent, Rachel A. Fenton.
    The plaintiff, through her agent, had such notice of the life-lease as to make it a prior lien to her mortgage. (Ghrimstone v. Garter, 3 Paige, 421; sustained in Williamson v. Brown, 15 N. Y., 354.) “It is true that when a tenant is in possession of the premises, a purchaser has- implied notice of the nature of his title.” (2 Myl. & Keene, 629.) “Absence of ordinary caution is equivalent to notice of the facts.” (1 You. & Coll. Ex. Pep., 303.) “ Whatever is sufficient to make it his duty to inquire as to the rights of others, is considered legal notice to him of those rights.” (Tuttle v. Jackson, 6 Wend., 226.) ' The doctrine of notice, as laid down in Tuttle v. Jackson, and other cases hereinbefore cited, is recognized through all the cases touching this question. ( Vide Grosvenor v. Lynch, 2 Paige, 300; Troujp v. Herbert, 10 Barb., 354; Webster v. Van Steenberg, 46 id., 211; Trustees, etc., v. Wheeler, 59 id., 585; jBroion v. Volkeming, N. Y. Com. Pleas, reported in Daily Register, April 17, 1875.)
   TappbN, J.:

The defendant, Rachel A. Fenton, was the owner and occupant of a house and lot in the city of Newburgh, and in the year 1866 she conveyed the same to her son, John B. J.'Fenton, in fee. The consideration expressed was $2,500. At the same time the grantee executed to his mother, the grantor, a lease of the premises for her natural life, at $100 per year. The conveyance was recorded in due time. The lease was not recorded until the year 1874. Before that time, and without notice of such lease, and after examining the record and asking the owner, John B. J. Fenton, as to liens, and being informed there were none, the plaintiff, in the year 1871, loaned to him the sum of $1,500 and took a mortgage on said premises therefor, and»seeks to foreclose the same by this action.

The defendant Rachel Fenton sets up the life-lease and claims an interest in the premises prior to plaintiff’s mortgage. She prevailed at the trial, and the plaintiff had judgment of foreclosure and sale, but subject to such lease, which was declared to be a prior lien. There was no change in Rachel Fenton’s possession. The possession she had while owner, she continued to have while lessee.

The plaintiff, admitting the general rule that possession of land is notice to others of the possessor’s title, claims that such rule does not govern the question presented in this case, in view of the facts disclosed. In Cook v. Travis (20 N. Y., 400) the question is examined, and it is held that the rule is to govern and apply according to the special circumstances of the case.

The fact that Mrs. Fenton had once been owner; that she conveyed to her son, and that there had been no change in the possession ; the inquiry made by the plaintiff of Fenton, and an examination .of the records disclosing no liens; and Mrs. Fenton’s omission to record her lease, which, although dated in the year 1866, was not proven or recorded until the year 1874, three years after the making and recording of plaintiff’s mortgage,' present the question of the plaintiff’s superior lien in a very forcible light.

Possession, to operate as notice, should be inconsistent with the title upon which the possessor relies. Here the defendant Bachel conveyed an estate in fee, and the conveyance was recorded. She also accepted, but did not record a life-lease; and there was no change in possession, so that there was nothing to put the plaintiff upon inquiry. The plaintiff was, however, reasonably diligent in making inquiry as to title, etc. (Reed v. Gannon, 50 N. Y., 350), and should, within the case of Cook v. Travis, have judgment in her favor as against Mrs. Fenton.

The decree should, therefore, be modified and declare as follows, to wit: That the plaintiff’s mortgage is a lien superior to the defendant’s life-lease; that the plaintiff recover costs of the defendants, and that the defendant Bachel Fenton do not recover costs of the plaintiff. Costs of this appeal to the plaintiff.

Present — BaeNARD, P. J., TappeN and Taloott, JJ.

Ordered accordingly.

MEMORANDA OB’ OASES NOT REPORTED EST FULL.


author: BaenaRD, P. J.

text:
    In the Matter of the Application of the COMMON COUNCIL OF THE CITY OF BROOKLYN, in Relation to the OPENING OF NORTH THIRTEENTH STREET.

      Talcing land for public use — when tiüe passes — power to discontinue proceedings.

    In this State no title is acquired under proceedings to condemn land for a public use, until the confirmation of the report of the commissioners appointed to assess the damages for the taking thereof. (Matter of Anthony Street, 20 Wend., 618; Matter of Widening Wall Street, 17 Barb., 617; Matter of Washington Pande, 56 N. Y., 144.)
    Accordingly, where the common council of the city of Brooklyn, after the appointment of commissioners for the opening of a street therein, and before they had made their report, passed a resolution providing that all further proceedings for opening the street “be stayed until the further action of this board,” held, that it was irregular for the commissioners to complete their report and present the same to this court for confirmation.
    Appeal from an order confirming the report of commissioners appointed to open North Thirteenth street, in the city of Brooklyn, from First street to the East river.

      JEherett P. Wheeler, for appellants. William, O. De Witt, corporation counsel, for city of Brooklyn.
   Opinion by

BaenaRD, P. J.

Present— Baenaed, P. J., Tappen and Taloott, JJ.

Order confirming the report reversed with ten dollars costs.


author: Taloott, J. •

text:
    JOSEPH WHITMORE, Respondent, v. CHARLES BISCHOFF, Appellant.

      Bddenee — opinion of witness — Nuisance — measure of damages.

    In an action brought to recover damages for a nuisance maintained by the defendant, plaintiff was, against the objection and exception of defendant’s counsel, allowed to express his opinion as to the pecuniary amount of damages which his property had sustained by reason of the nuisance. Held, that this was error. The proper way is to lay such facts, as bear upon the question of damages, before the jury, and leave them to fix the amount. ' (Teerpenning v. The Oorn Bx. Ins. do.-, 48 N. Y., 279 ; Morehouse v. Mathews, 2 id., 514.)
    All the damages which a party can recover for a private nuisance, are those which he has sustained previous to the bringing of the action. It is error to allow a recovery fbr the diminution in value of the premises, based upon the assumption that the nuisance is to continue forever. (Brands v. Behoellleopf, 53 N. Y., 152 ; MeKeon v. Bee, 4 Eobt., 449; affirmed, 51 ÍT. Y., 300.)
    Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury.
    This action was brought to recover the damages arising from an alleged nuisance claimed to have been committed by the defendant, a brewer, by the discharge, through a sewer or drain, of certain offensive matter from his premises, into a brook or water-course running through the land of the plaintiff.

      Westervelt <& Greenfield, for appellant. Wm. Henry Anthon, for respondent.
   Opinion by

Taloott, J. •

Present — Baenaed, P. J., Tappen and Talcott, JJ.

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


author: Baenaed, P. J.,

text:
    WILLIAM H. MORTON, Respondent, v. HUGH WEIR, Appellant.

      Lease — cancellation of.

    Tie defendant leased to tie plaintiff’s assignor, a lot of land'for ten years, tie lease providing tiat if tie lessor siould sell tie premises during tie term, it siould be canceled and at an end, and that, the defendant or tie purchaser would pay the lessee a fair and just price for all permanent improvements. Held, that tie effect of tie clause was not to render tie lease determinable only on tie election of tie lessor, but that a sale of the premises terminated tie lease at once, and gave to tie lessee a right to recover tie value of tie peima-nent improvements, although he had never been disturbed in his possession of tie premises.
    Appeal from a judgment in favor of the'plaintiff, entered upon the report of a referee.

      A. J. Sogers, for appellant. P. L. Modelan, for respondent.
   Opinions by

Baenaed, P. J.,

and Tappen, J.

Present — Baenaed, P. J., Tappen and Talcott, JJ.

Judgment affirmed, witb costs.


author: Baenaed, P. J.

text:
    DANIEL SIMMONS, Respondent, v. BRADBURY M. RICHARDSON, Appellant.

      General finding — effect of— Tiow corrected,.

    Where, upon tie trial of an action before tie court without a jury, a finding is too general, tie party injured thereby siould ask a more specific one. If ic suffers it to stand and the evidence returned shows no error, tie judgment must be affirmed tie same as if entered upon the verdict of a jury.
    Appeal from a judgment in favor of the plaintiff, entered upon the trial of this action by the court, without a jury.

      PL. A. Nelson, for appellant. Bevy. H. Bayliss, for respondent.
   Opinion by

Baenaed, P. J.

Present — Baenaed, P. J., Tappen and Talcott, JJ.

Judgment affirmed, witb costs.


author: Barnard, P. J.

text:
    CHARLES S. HAVENS, Appellant, v. HARRISON GORDON and another, Respondents.
    Bxeaution— levy by constable under — failure to indorse.

    The omission of a constable to indorse upon an execution issued on a judgment recovered in a Justice’s Oourt, a levy made under it, is not fatal to the levy. The statute (8 B. S. [5th ed.], 448) is directory merely.
    Appeal from a judgment of the County Court of Suffolk county, reversing a judgment in favor of the plaintiff, recovered in the Justice’s Court.

      Wm. 'Wickham, for appellant. J. H. Tuthill, for respondents.
   Opinion by

Barnard, P. J.

Present— Barnard, P. J., Tappen and Taloott, JJ.

Judgment of County Court reversed and that of justice affirmed, with costs.


author: Tappen, J.

text:
    CHARLES W. SATTERLY, Respondent, v. THOMAS G. HALLOCK and others, Appellants.

      Contributory negligence.

    Defendants unlawfully removed the plaintiff's vessel, without his consent, from the dock at which she was lying, and left her lying in the stream on a log of wood which had some time before been thrown overboard by the plaintiff himself; at low water the vessel settled on the log and sustained the damages to recover which this action was brought. Reid, that the plaintiff was not guilty of contributory negligence in throwing the log overboard, and that he was entitled to recover.
    Appeal from a judgment of the County Court of Suffolk county in favor of the plaintiff, entered upon the verdict of a jury.

      R. Jénnings, for appellants. Strong c& Spear, for respondent.
   Opinion by

Tappen, J.

Present — Barnard, P. J., Tappen and Taloott, JJ.

Judgment affirmed, with costs.


author: Baenabd, P. J.

text:
    HENRY H. LAWRENCE, Appellant, v. ISAAC R. MEAD, Respondent.

      Bmeiion.

    Appeal from a judgment in favor of the defendant, entered upon the report of a referee.
    Plaintiff agreed to buy of one Ira Miller a farm of laud in Westchester county, and paid thereon $2,000 in October, 1872. In April following, the time for the completion of the contract was extended until the 1st of May, 1873, and the plaintiff took possession and leased to one Beattys for one year, defendant becoming Beattys’ security on the lease.
    On the 1st of May, 1873, plaintiff made an inexcusable default in the completion of the contract, and Miller sold the land to other persons. Miller, acting under these purchasers, in August, 1873, went to the premises and forcibly removed Beattys therefrom into the 'highway; and Beattys, after the eviction, took a lease from the men who undisputably owned the fee, and from the persons whom Lawrence claimed under. The referee found that the eviction was made in good faith, and that Beattys acted in good faith.
    . The General Term held, that it was not necessary, to make the eviction complete, that the evictor should carry the tenant beyond the highway, although the highway was owned by persons who owned the farm. That all people had the right to pass and repass and to be thereon, and it would be a trespass to have carried the tenant beyond the limits of the highway.

      J. T. Mwrien, for appellant. G. Frost, for respondent.
   Opinion by

Baenabd, P. J.

Present -r- Baenabd, P. J., Tappen and Talcott, JJ.

Judgment affirmed, with costs.


text:
    ELIZABETH BURGER, Administratrix, etc., Respondent, v. JAMES G. HUGHES and another, Appellants.

      Mortgage — Lien for pmehase-money.

    Appeal from a judgment of foreclosure in favor of plaintiff. The defendant executed to plaintiff’s intestate a purchase-money mortgage, but no bond was executed therewith, although a bond was recited in the usual manner in the mortgage, and one was prepared. The defendant, claimed that the omission to sign the bond was not accidental but intentional, and was by agreement between him and the mortgagee, and arose out of some dispute between them touching the land conveyed, in respect to which something remained to be done by the mortgagee. Notwithstanding this assertion, the defendant paid interest on the mortgage debt from time to time, and, with his own hand, indorsed several of the payments on the bond, which was all the time in the mortgagee’s possession, unsigned by the defendant. The defendant contended that there was no bond, and, therefore, no debt, save upon simple contract, and that the mortgage was nugatory and could not be enforced. In addition to payments of interest, the defendant had paid certain yearly installments of principal, pursuant to the terms of the instrument, and by which payments the principal had been reduced from $6,200 to $3,900.
    The General Term held, that the court, upon the undisputed facts would decree to the plaintiff a vendor’s lien upon 'the premises for the unpaid purchase-money, and affirmed a judgment of foreclosure of the said mortgage.

      B. W. Huntington, for appellants. B. H. Underhill, for respondent.
   Opinion by

Tappen, J.

Present — Baenaed, P. J., Tappen and Talcott, JJ.

Judgment affirmed, with costs.


text:
    HENRY A. RICHARD, Appellant, v. ISAAC B. WELLINGTON and others, Respondents.

      Conversion — waiv&r — estoppel.

    Appeal from an order made at the Circuit upon the trial of this. action, nonsuiting the plaintiff.
    The action was brought for a wrongful and fraudulent conversion of a large amount of wines by the defendants, the wines being the property of plaintiff. The bulk of the wines went into defendants’ possession in 1866, and the remainder in 1868. 1 Upon the trial the plaintiff was the principal witness, and testified to a tortious sale. Upon his cross-examination, it appeared that bills were rendered by plaintiff to defendants, at the dates when the property went into defendants’ possession. That subsequently thereto, and previous to the spring of 1870, $32,272.63 had been received on account thereof, the whole value being claimed to have been $44,826.34. That in March, 1870, an account as of wines sold by plaintiff to defendants was rendered, and on the 28th of July, 1870, a claim was made for the balance as for goods sold by plaintiff to defendants, crediting the payments. Defendants paid all the duties on the wines. Plaintiff made no inquiry about the payment of the duties, although he knew that the wines should have been confiscated by the government of the United States if the duties were not paid. The plaintiff knew that the defendants were selling the wines very soon after the defendants received them. Defendants failed,in business in December, 1870.
    The General Term held, that the nonsuit was proper. That there was either a sale or a waiver of an unauthorized sale by receiving large payments as for goods sold, or an estoppel, by reason of plaintiff’s silence, when he knew defendants were paying the duties and selling the property, and receipt from defendants of large sums on account.

      Dams <& Lyon, for appellant. George W. Parsons, for respondents.
   Opinion by

Barnard, P. J.

Present — Barnard, P. J., and Talcott, J.

Judgment affirmed, with costs.


author: BarNAed, P. J.

text:
    JAMES J. RICHARDS and another, Respondents, v. NATHANIEL BLOOM, Impleaded, etc., Appellant.

      Bef&ree ■ — fail/wre to report in sixty days.

    Appeal from an order made at tbe Special Term, denying a motion to set aside the report of a referee.
    This action was submitted to the referee to determine the same, on the 20th August, 1874, which day was fixed by the parties for an oral argument, but the plaintiffs’ attorney, on account of sickness, prepared a written argument and left it with the referee.
    The defendants’ attorney arrived at the referee’s office after his opponent had gone, and also submitted a written argument.
    The action was not decided in sixty days, and the two attorneys, on the 20th October, 1874, wrote a letter to the referee as follows: “We. find that the time within which the report in this case should have been made and delivered, expired yesterday, but we are not thereby disposed to terminate the reference unless you desire it to be done. We feel that we would be better satisfied to sum up the evidence orally if . you are inclined to hear us and have not determined upon the character of the decision you shall render, and would, therefore, if agreeable to you, designate the twenty-seventh instant, at ten o’clock, as the day and hour when we shall appear before you for such purpose.”
    On the day mentioned in the letter, the parties appeared before the referee, and he requested a postponement until 4th November, 1874, when the case was orally argued and submitted.
    The referee did not decide the action within sixty days from 4th November, 1874, and on the 7th January, 1875, the defendants’ attorney served a notice on the plaintiffs’ attorney and on the referee, that he elected to terminate the reference. The referee made his report subsequently in favor of plaintiffs.
    The defendants applied at Special Term to set aside the report, and this application was denied, from which this appeal was taken.
    The General Term held, that though the effect of the oral argument was undoubtedly to extend the time to decide the action for sixty days after the fourth November (Gregory v. Cryder, 10 Abb. Pr. [N. S.], 296), yet there was nothing in the letter above referred to whereby either party waived his right to a decision within the statutory time.
    That as no stipulation was asked or given for more than sixty days within which to decide, and as after the sixty days had elapsed, the defendants served a notice terminating the reference, it was irregular for the referee to decide the action after the service of that notice.

      A. T. Gttrlitz, for appellant. Hewry J. Scheneh, for respondents.
   Opinion by

BarNAed, P. J.

Present — BaeNaed, P. J., TappeN and Talcott, JJ.

Order reversed and reference vacated, with ten dollars costs of motion and ten dollars costs of appeal.


author: Talcott, J.

text:
    THE NATIONAL BANK OF NEWBURGH, Respondent, v. DANIEL SMITH, Appellant.

      Note — appropriation of malcer's icm7c deposit.in payment of.

    Appeal from a judgment in favor of the plaintiff, entered upon the trial of this action by the court, without a jury.
    The defendant is sued as indorser of a promissory note made by one Thomas George, payable to the order of the defendant and indorsed by him to the plaintiff'. The note was for $500, dated February 4th, 1814, and payable ten days after its date at the plaintiff’s bank. George, the maker, kept an account at the plaintiff’s bank. The practice had been to charge the notes of George in his account as they fell due at the plaintiff’s bank, in case the account was good for the amount at the time the note matured; not otherwise. When the note in suit matured there was only about the sum of ten dollars to the credit of George, and the note in question was not charged up in his account. On the 2d day of March, 1874, George made a general deposit of the sum of $500 to his credit in the bank, without any specific directions as to the application or appropriation of the amount. This sum was passed to the general credit of George at the time of the deposit, and subsequently paid out by the bank in payment of a note made by George and payable at the plaintiff’s bank for $500, due March 4th, 1874, payable to the order of one Burton, and which was presented to the plaintiff for payment through its exchanges on the day it fell due. The defendant claimed that the note in suit was paid by the deposit of the $500 on the second of March. The General Term held, that this was not so. That the note had matured, and the liability of both George and the defendant had become fixed and absolute before the deposit was made ; and that there was no appropriation of the money to the note in suit, by either the debtor or the creditor, and no circumstances making the inference of such intent necessary. On the contrary, the act of making a general deposit of the money on account, without any reference to the note in suit by the debtor or creditor, indicates that the deposit was not designed or received as a payment of the note in suit, and the acquiescence, so far as appears, of the depositor in the subsequent appropriation of the money, affords evidence that there was no intention of applying it to the note in suit. (.Beardsley v. Warner, 6 Wend., 610 ; Pitts v. Gongdon, 2 Comst., 352 ; Marsh v. Oneida Bank, 34 Barb., 298.)

      Cassedy' de Brown, for appellant. E. A. Brewster, for respondent.
   Opinion by

Talcott, J.

Present — Baenaed, P. J., Tappen and Talcott, JJ.

Judgment affirmed.


author: BaeNaed, P. J. '

text:
    WILLIAM BORDEN, Plaintiff, v. THE SOUTH SIDE RAILROAD COMPANY OF LONG ISLAND, Defendant.

      Adverse possession — oceupcmcy by permission does not constitute.

    Motion for a new trial on exceptions, ordered to be heard in the first instance at the General Term.
    The Flushing Railroad Company, in 1853, commenced proceedings to acquire title to the land for the recovery of which this action is brought, but subsequently abandoned them and entered into possession under an, agreement with Bliss and Sneden, the owners, to occupy them temporarily and then to remove their tracks to another location. In 1860 the land was conveyed by Bliss and Sneden to the plaintiff.
    Nothing was done by the company in performance of the verbal agreement. In 1858 the road and its appurtenances were sold under foreclosure, and Abraham S. Hewett became the purchaser, and subsequently conveyed to the New York and Flushing Railroad Company. The defendant succeeds to this company and claims that the deed from Hewett to the New York and Flushing Railroad Company gave that company such a color and claim of title that the deed from Bliss and Sneden was void under our statute. The General Term held, that there were two answers to this : First, Bliss and Sneden permitted the Flushing Railroad to occupy and the railroad company accepted the occupancy by permission of them. {Luce v. Garley, 24 Wend., 451.) In the second place, the deed from Hewett to the New York and-Flushing Railroad Company, and from the referee to him, were not intended to convey the lands in question.

      W. Bloomfield, for plaintiff. E. B. Hinsdale, for defendant.
   Opinion by

BaeNaed, P. J. '

Present — BaeNaed, P. J., and Talcott, J.

Judgment affirmed, with costs.


author: BaeNAed, P. J.

text:
    LEWIS Y. WIGGINS and another, Respondents, v. THE ERIE RAILWAY COMPANY, Appellant.
    Oommum-ca/rrier— MU of lading exempting carrier from damages for delay or loss — - authority of agent to accept — consideration.
    Appeal from a judgment in favor of the plaintiffs, entered upon the verdict of a jury.
    This action was brought to recover the value of a car load of refined petroleum oil, which was destroyed by fire while in defendant’s possession. The plaintiffs, residing in Newburgh, being about to purchase oil at Buffalo, on July 9, 1873, sent a letter to the general freight agent of'the defendant as follows: “We wish to avail ourselves of the exceeding low price of oil, and propose shipping from Buffalo to Newburgh; hence we would like very much to get your lowest rates to Newburgh, Paterson and Newark.” The general freight agent replied, under date of July eleventh, giving the price at twenty-five cents per 100 pounds. The plaintiffs purchased the oil in question from Thayer & Riddell, at Buffalo, and sent them the letter, and directed them to send the oil by defendant’s road to Newburgh. Thayer & Riddell, on July fourteenth, shipped the oil as.directed, showing the letter to the defendant’s freight agent at Buffalo, and took from the latter a bill of lading, in the body of which they wrote the word “ Released,” meaning thereby that the company was released from all damages that might result from delay in the transportation or loss of the oil. The car containing the oil in question started from Buffalo in a train of seventeen cars, at six p. m.- on July seventeenth, and proceeded as far as Attica, where it was detached and placed on a side track, where it remained until between one and two o’clock the following morning, when it was, with its contents, entirely consumed by fire.
    The General Term held, that Thayer & Ridell had no authority to vary the contract between the plaintiffs and the defendant, and that in any event there was no consideration for the release, as there was no reduction in the rate of transportation from the price referred to in the letter of the agent.

      Oassedy & Brown, for appellant. E. Brewster, for respondents.
   Opinion by

BaeNAed, P. J.

Present — BaeNAed, P. J., TappeN and Talcott, JJ.

Judgment affirmed, with costs.


author: Davis, P. J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK, Appellants, v. JOHN FLANAGAN, Respondent.

      Annexation act — chapter 613, 1873 — Judge of tenth judicial district — election of, November, 1873 — chapter 329,1874.
    The provisions of chapter 613 of 1873, to the effect that the territory of several towns (on certain conditions to he annexed to New York city, on the 1st January, 1874), should constitute the tenth judicial district of the city of New York, and that there.should he a justice of the court of said district who should he elected at the next general election thereafter to be held, construed to intend that such justice should bé elected at the election held in November, 1873.
    It was further held, that such justice was properly elected under the election laws of the several towns as they existed in November, 1873.
    Appeal from a judgment entered on a verdict directed by the court.

      F. Gr. Salmon, for the appellants.

      John B. Baskin, for the respondent.
   Davis, P. J.:

This is an action in the nature of a writ of quo warranto, to test the title of the respondent to the office of justice of the tenth judicial district of the city of New York. The office was created by chapter .613 of the Laws of 18,73, which is the act familiarly known-as “the annexation act.” By the provisions of that act, the towns of Morrisania, West Farms and Kingsbridge, then part of Westchester county, were, on the 1st day of January, 1874, to become part of the city and county of New York, provided the people of said several towns and of the city should, in the manner prescribed by the act, ratify the annexation at the general election of November, 1873. It was also provided by the act, that the territory of said sevéral towns, when annexed, should constitute the tenth judicial district of -the city of New York, and that there should be a district court therein, to be known as the Tenth Judicial District Court; and that there should be a justice of said court who should be elected at the next general election thereafter to be held. The act was to take' effect on the 1st day of January, 1874, except as otherwise therein provided. Among the exceptions was a provision for the appointment of a police justice, which officer was to be nominated by the mayor of the city, on or before the loth day of December, 1873; and for the election of a civil justice “ at the next general election.” The act was passed May 23d, 1873, and the first general election thereafter was held^ November 4th, 1873. We think there can be no doubt that the election of November, 1873, was the next general election intended by the act.

There seems to be no reasonable doubt that the legislature, in anticipation that the annexation would be perfected by the popular vote, intended to provide that the annexed territory should, on the 1st day of January, 1874, have a complete civil and criminal judicial organization, and had no intention that a year should elapse after the annexation- was perfected, before a civil justice could be chosen and enter upon the discharge of his duties.

The principal point made by the appellant is, that while the election of the civil justice was to take place at the general election of 1873, it was nevertheless to be in all respects a city election, to be conducted in conformity to the election laws of the city, by officers appointed by the city authorities, and upon a registration of the voters of the several election districts as provided for the city; and this not having been done, the election of a civil justice was altogether unauthorized and illegal. The election, at which the defendant was chosen by a clear majority to the office of civil justice, was beld in conformity to the laws then operative in the county of Westchester; and by inspectors who* had been chosen for the several election districts of the towns under and pursuant to the provisions of such laws.

It is apparent that, at the time the election was held, the city and county of New York had no territorial jurisdiction of the annexed towns. No power was conferred upon them to appoint, in such towns, boards of registration, or of inspectors of elections, or any officers connected with such general election. To have attempted to do so would have been a usurpation of power, and in legal effect there would have been two elections held separately, though simultaneously, conducted by different sets of officers and governed by different laws. We think the act in question did not intend to create any such incongruity. It was not intended to give the corporate authorities of the city and county any power to interfere with or control such election. The question is not, therefore, whether the election of civil justice should have been held under city authority, but whether, by force of the provisions of section 2 of the act, the authorities of the several towns should themselves have conducted the election of civil justice, in conformity with the laws then in force in the city and county of New York. Section 2 also provides that every election prior to January 1, 1874, shall be held under and according to the provisions of such laws as now exist. We think the intention of the legislature was, by the provision of the section firstly referred to above, to provide for the election of all officers after the territory should become annexed, and, by the provision secondly referred to, to keep in full force the existing laws of the several towns in respect to all officers to be chosen at the election of 1878. This construction relieves the act of great embarrassments, and places the conducting of the election of tire civil justice in 1873, precisely where it could be most harmoniously carried on: in the hands and under the control of the existing local authorities.

We think the election was lawfully held. It is not necessary to pass upon the question whether the returns of the election should have been made to, and canvassed by, the county canvassers of Westchester, or to the canvassers of New York. The returns were made to both, with sufficient regularity in point of form. They were not canvassed by the Westchester board, but were, by the city board; and the election of the defendant was declared and certified by the latter. The only effect of holding this to have been irregular, would be to adjudge it to be the duty of the Westchester board of canvassers_to meet and canvass the returns, and as it is admitted in the case that the returns were formally correct, and that defendant received a large majority of the votes cast, he would in that event be declared to have been elected and entitled to enter upon his office' on such election. Ilis past official acts would be valid as an officer de facto, and his future, as an officer de jure. But, by section 18 of chapter 329 of the Laws of 1874, the legislature declared that the several acts done and performed under and in pursuance of sections 1 to 16, inclusive, of the annexation act of 1873, were thereby confirmed. We think the curative operation of this statute ought to be regarded as broad enough to cover any irregularity in the canvass of the returns in question.

Our conclusion is that the judgment should be affirmed.

Daniels and Doeohue, JJ., concurred.

Judgment affirmed.


text:
    WILLIAM NELSON, Jr., Appellant, v. THE MAYOR, Etc., OF THE CITY OF NEW YORK, Respondent.

      Chap. 551 0/I866 — chap. 187 O/1870 — chap. 574 of 1871 — Construction of— Commissioner of public works — powers of to contract.

    Under sections 9, 10 of chapter 551 of 1866, and the provisions of section 110 of chapter 187 of 1870, as amended by section 8 of chapter 574 of 1871, the commissioner of public works in the city of New York has no power to make contracts for materials for sewers exceeding in amount the sum of $100,000.
    Appeal from a judgment entered on the dismissal of plaintiff’s complaint at Circuit.
    The complaint alleged that on the 29th day of April, 1871, an agi’eement was made by the plaintiff with the defendants, through the commissioner of public works, to furnish certain large quantities of pipes to be used in the construction of sewers. That certain large quantities of such pipes had been furnished, amounting to $181,835, upon which $127,284 had been paid, and $54,550 remained unpaid.
    The answer denied that any lawful contract was ever made for the supply of the pipe named. It averred that the commissioner of public works had' no authority to make and enter into the agreement set forth in the complaint. That no ordinance of the common council had ever been passed authorizing the expenditure of money for furnishing or providing the articles named in the complaint.
    That the plaintiff was not the lowest bidder for the material named ; that one Thomas McMann, at the letting of the contract, had offered and proposed to furnish the articles furnished by the plaintiff at prices amounting to an aggregate sum of $70,000 less than the plaintiff’s contract-prices.
    "When the plaintiff rested, the defendants’ counsel moved to dismiss the complaint upon the grounds:
    1. That there was no ordinance of the common council authorizing the contract, or other proof that the defendants had authorized the commissioner of public works to make the contract.
    2. That it was nbt shown that any appropriation had been previously made covering the expense contemplated in the contract.
    The court thereupon dismissed the complaint, and plaintiff’s counsel excepted.

      A. J. Vanderpoel, for the appellant.

      David J. Dean, for the respondent.
   Davis, P. J.:

It is claimed that this case is governed by the case of Green v. The Mayor (decided by the Court of Appeals, March 23, 1875), the opinion in which, Rapallo, J., is now before me. In cases strictly within that decision, we are of course constrained to follow it, whatever may be our own judgments in regard to its correctness; but inasmuch as three judges of that court dissented and concurred in the opinion of Miller, J., which was in accordance with the conclusions of four judges of this court, we feel under no restraint to extend the decision. The complaint in this case was dismissed by the learned justice at Circuit on oue or both of the following grounds: “First. That there was no ordinance of the common council authorizing the contract, or other proof that the defendants ever authorized the commissioner of public works to make a contract. Second. That it was not shown that any appropriation had been previously made, covering the expenses contemplated by the contract.”

It is contended by the appellant, that the power conferred by sections 9 and 10 of chapter 551 of the Laws of 1866, is general and unlimited in its character and that the board, or the commissioner who succeeded to the powers of that board, could, in their or his discretion, make contracts for the materials used in the construction of sewers to any extent, and in whatever quantity they or he chose ; and that the comptroller is bound to pay for the same out of the proceeds of bonds to be issued .under section 10 of the same chapter. If this contention be well founded, this case comes within the decision of Green v. The Mayor, and must be disposed of accordingly. It is, however, insisted by the respondents, that the power conferred by section 9 of the chapter mentioned, is subject to two limitations: First. That it was not intended to give unlimited power to contract for, and lay up stores of materials to whatever extent the' board or the commissioner chose, without regard to the wants for present and authorized use, but to provide for such sewers — the construction of which the board had determined upon and undertaken, and for which materials were therefore necessary — by a general contract for such materials to the full extent requisite in the construction of all the sewers so determined upon, instead of being required to limit their contract or purchase to the materials necessary for each specific sewer; and, secondly, that however general the power given was, it was yet restricted in amount to the sum of $100,000 appropriated, and out of which the contract-price was to be paid by the comptroller.

General as the language of section 9 is, we are strongly inclined to think that the construction claimed for it by the respondents is the true one. If it be not so, then the aqueduct board, and, afterward, the commissioner of public works, were empowered to store up by purchase, at pleasure, unlimited quanti.ties of sewer materials, regardless of any present want, and covering all future supposed wants for an indefinite period of time. The power to purchase $1,000,000, or $5,000,000 or $10,000,000 worth of such articles, and create a debt upon the city therefor, would be just as clearly within the act, as to contract fot the actual wants of sewers determined upon and undertaken. In looking for the intent of the statute, it is a just subject for consideration, that one construction opens a wide door for unbounded discretion and the largest frauds, while the other simply removes a restriction, which, under the former act, compelled a separate contract for each sewer, and gave power to purchase by one contract for all sewers already determined upon and undertaken in conformity to the general act.

The contract in question was one of unlimited character. It contracted for about $182,000 worth of earthen sewer pipes, not for present and legal wants which had arisen by action of the commissioner in determining upon sewers to be built, but for the laying up of large supplies to meet future wants which might, or might not, lawfully arise. This is claimed to be its character, and it does not appear to have been otherwise. That such a system would be improvident, and probably wasteful to a large degree, when applied to the public works of a State or city, 'and used for the expenditure of public moneys, needs no argument to establish. And that it would lead to favoritism and gross frauds needs no other illustration than to suppose the allegation of’ the answer, that in this particular case the bid of a responsible party at $70,000 less than the sum at which the contract was awarded to plaintiff, was not accepted by the commissioner.

But if this construction of the power given be not sound, we think the second point, that the power to contract was necessarily limited to the sum which the comptroller was authorized to raise and pay, is’ well taken. Section § of the act directs the comptroller to pay, on the requisition of the aqueduct board, from the proceeds of the bonds “ hereinafter authorized to be issued for such materials ” and the expenses for engineers, surveyors, inspectors and other persons employed; and section 10 provides that, for the purpose of making the payments provided for in the preceding section, the comptroller may issue assessment bonds, in addition to those authorized by existing laws, not to exceed the sum of one hundred thousand dollar's. This sum must be regarded as an appropriation for the purpose of such contracts as the commissioner was authorized to make, and it operates as a restriction upon his power to contract, by requiring it to be exercised within that limit.

It can hardly be'urged that it was intended that the comptroller should be obliged to issue $100,000, die in diem, or so often as the commissioner should advise him that he had made a contract for materials for sewers requiring that amount. If so, the indebtedness of the' city would be rolled up indefinitely, notwithstanding the" language of section 10 declaring that the bonds thereby authorized “ are not to exceed the sum of $100,000.” With this limitation before his eyes, the commissioner had no power to make a contract for materials to the amount of $182,000. And the plaintiff was bound to take notice of such want of power. But if there be any doubt of the limitation by force of the sections 9 and 10 of the act in question, we think that doubt is removed by subsequent legislation. The contract in this case was made in April, 1811. By section 110 of chapter 137 of the Laws of 1810, as amended by section 8 of chapter 574 of the Laws of 1871, it is declared that no expense shall be incurred by any of the departments, boards or officers [of the city] whether the object of the expenditure shall have been ordered by the common council or not, unless an appropriation shall have been previously made, covering such expense.” This salutary restriction is applied in plain terms to all departments, boards and officers of the city, and to all objects of expenditure, whether ordered by the common council, or not so ordered, ahd must embrace all expenses vncurred, for there can be none which are not either ordered, or not ordered by the council. It operated therefore to restrict the power of the commissioner of public works to incur expense under section 9 of the act of 1866, to the sum appropriated, and that sum, by the language of section 10, was “ not to exceed $100,000.”

If it be granted that section 10 of the act conferred a continuous power, to be repeated ad libitum, or from year to year (which I by no means assent to, for I think the power under section 9 was exhausted, whenever materials were contracted for to the extent of $100,000), yet that power was expressly subject by the acts of 1870, 1871 to the restriction thereby created.

It follows, that the contract in- this ease was one which needed the authority of the common council, because the authority given by the law under which it is claimed to have been made, is too short for its purpose, and that it was invalid, without an appropriation by the common council, or by the legislature, because it incurred an expense beyond any appropriation previously made “ covering such expense.”

The judgment should therefore be affirmed.

Daniels, J., concurred.

Judgment affirmed.


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

      Glerks of District Oon/rt of Dew York eity — not boat officers within meaning of section 97, chapter 385, of 1873 — salary.

    Clerks of the District Courts of the city of ISTew York are not local officers of the city and county of Hew York within the meaning of section 97, chapter 335, of 1873.
    MotioN by plaintiff for judgment on a verdict ordered subject to the opinion of the court at General Term.

      F. L. Fanoher, for the plaintiff.

      D. J. Dean, for the defendant.
   Davis, P. J.:

The plaintiff is clerk of the District Court of the city of New York for the third judicial district, and has been such clerk since May 21st, 1872. The salary of such clerk was fixed by chapter 438, of the Laws of 1872, at $3,000 per annum.

The board of estimate of the city and county of New York, under and pursuant to section 97, of chapter 335, of the Laws of 1873, passed a resolution fixing' the salary of plaintiff and other similar officers at $2,500 per annum. At that rate plaintiff' has been paid, and he brings this action to recover the difference between that sum and $8,000 for the period covered by his complaint.

We think the question in this case was disposed of by Quin v. The Mayor (44 How. Pr., 266), which was affirmed by this court and subsequently by the Court of Appeals on the opinion given at Special Term by FaNCHER, J.

The plaintiff, in that case, was one of the justices of the District Court. Similar action liad been taken by the board of apportionment and estimate, touching his salary, and he brought suit for the difference between the reduced salary and that fixed by statute. It was held that he was entitled to recover, on the ground that the District Courts form part of the judiciary system of the State, and that their justices are not local officers of the city and county, within the meaning of section 97, of chapter 335, of the Laws of 1873. The same reasoning applies to the clerks of such courts and takes them and their salaries out of the operation of section 97 of the act of 1873.

In Landon v. The Mayor, etc., in the Superior Court of this city (reported in the Daily Register of February 27th, 1875), this question was very fully examined, in an action brought by a deputy clerk of the .Court of Common Pleas. The conclusion of an elaborate and able opinion by MoNELl, Ch. J., is to the same effect as the case above cited. We deem these authorities conclusive of this case. The plaintiff is therefore entitled to judgment on the verdict, which is ordered accordingly, with costs.

DaNIEls and DoNOhue, JL, concurred.

New trial denied, and judgment ordered for plaintiff on the verdict.