author: Barrett, J.:

text:
    MARIA MOFFATT, Appellant, v. WILLIAM CAULDWELL and HORACE P. WHITNEY, Respondents.

      Libel — complaint in action for — when sufficient.

    Although mere poverty is no crime, and ought not to expose any person to ridicule, yet one may he so circumstanced, and the fact of his alleged misery may be so put, as to excite ridicule and nothing else.
    In an action for libel the inquiry is as to the natural effect of the publication, not only upon the general public, but upon the neighbors and friends of the person aimed at.
    Appeal from an order of the Special Term, sustaining a general demurrer, interposed by the defendants to the plaintiff’s complaint.
    The following are the material portions of the complaint:
    The complaint of the above named plaintiff, by Shafer & Coleman, her attorneys, respectfully shows to this court:
    1. That the defendants above named are, and on the 13th day of October, 1867, and on the third day of Hovember, in the same year, were, the owners and proprietors of a certain newspaper called The Sunday Mercury, by them" printed, published and sold at the city of Hew York, in the State of Hew York.
    2. That the above named plaintiff is the sister of Doctor Moffatt, deceased, and is the person referred to in the herein alleged libelous matter as the sister of said Doctor Moffatt, deceased,' and the matters, hereinafter charged to he libelous, were published by said defendants of and concerning this plaintiff, in conjunction' with her .mother, also mentioned in said libelous publication.
    3. That the above named defendants, being such owners and proprietors, on the 13th day of October, 1867, contriving and maliciously designing to injure the plaintiff in her good name, fame and credit, and to bring her into public scandal, infamy and disgrace, with and amongst all her neighbors, and other good and worthy citizens, and to harass and oppress this plaintiff, did falsely, wickedly, and maliciously compose and publish, and cause and procure to be published in said newspaper called The Sunday Mercury, so, as aforesaid, owned and published by said defendants, of and concerning this plaintiff, a false, malicious and defamatory libel, containing the false, scandalous and malicious defamatory and libelous matter following, that is to say:
    “ Strange but true — The Moffatt Mansion in a Hew Light — A Family History and Mystery—Bevelations of the Domestic Belalations of a Hew York Millionaire.
    “ Click, click, click, the sound of the sewing machine, the sharp jerk, the incessant whir of the instrument, is heard from early morning till late in the evening — heard, too, as proceeding from the garret of a boarding-house on University place, the identical boarding-house, too, where formerly resided Mrs. General Eaton, whose romantic adventures are still fresh in the public recollection. In this garret, or attic, live, or at least breathe, two females, the one a very nice old person, evidently by birth and education, if not by present position, a lady; the other younger, but looking as old, if not more elderly, than her companion. On her face, and tall and thin figure, care has done its work, her large eyes are dilated with watching, and her countenance is sallow with the weary load of anxiety and hope deferred. She is attired in brown muslin of the cheapest sort, speaks but seldom, and seems utterly indifferent to society. The greater part of her time is passed out of doors, securing sewing work, which herself and her aged mother fulfill by indoor labor, assisted by the invaluable £ machine.’ When these women descend to the dining table, they enter modestly, timidly take a corner seat, and seem to be afraid even so much as to request the ordinary attention due from servants. And yet these poor, hard-working people are ladies born and bred, women who once lived in an almost palace. Females whose near relatives are at this moment living in affluence upon the wealth, a portion of which, at least, is in honor and feeling to nature, if not in the technicalities of the law, their own. In other words, these women are the mother and sister of Dr. Moffatt, recently deceased, the millionaire physician, whose Life Pills and Phoenix Bitters had in their day a world-wide popularity, netting the inventor millions; these women once occupied the celebrated Moffatt mansion as their home, and now they eke out a scanty pittance and wretched life, while a large family, who derive every dollar they consume from the earnings of their son and brother, roll in their carriage nightly to the opera. Such contrasts in the same family are seldom exhibited within the compass of the same city, and the strangest part of the affair is, that the existence of their poor relations is unknown to the wealthy branch of the family, and that, probably, their first information on this point will be afforded through the columns of The Sunday Mercury.

      “ The manner in which this ‘ transformation scene ’ in real life was brought about was substantially as follows: Dr. Moffatt, a
    fine-looking gentleman, of keen business habits, and a great believer in printer’s ink and real estate, and devotedly attached to his mother and sister, chanced to meet at a fashionable boardinghouse two sisters — both handsome, both modest, and both smart ■—■ orphans, who lived up to the full extent of a small annuity which was settled upon them. The doctor courted and married the elder of these girls, and, on his marriage, settled his mother and sister in the house near Union square afterward known as the Moffatt mansion, while he located himself, his wife, and his wife’s sister in an elegant establishment in Fifth avenue; but one night he died suddenly of diphtheria, and a will was found — not such a will as he evidently intended to have left behind him, but still the only will that was found; and, taking advantage of some loophole in this document, some shrewd lawyers contrived to defeat what must have been the intention of the dead doctor, who was, as before remarked, a most exemplary son and brother, and absolutely managed to turn the deceased millionaire’s own mother and sister out of doors upon the world, with not a roof to cover them. Accustomed all their lives to luxury, and unaccustomed to labor, the sudden blow fell upon these unfortunates with a crushing weight, and they have never recovered from the shock. They left Mew York, and for some years lived on the weekly sales of their personal effects saved from the general wreck ; but then this resource failed them in time, and they returned to the metropolis. Meanwhile all trace of them had been lost. The. widow of Dr. Moffatt had. died suddenly at Long Branch. Her sister, too, had died, and all that remained of the rich Moffatts were the little children and their guardians, none of whom had ever seen those poorer Moffats of whom we write, or were even aware of their existence. The former now dwell in Thirty-fourth street, in a sumptuous establishment, the latter in a garret in University place. And such is life.”

      Ira Shafer, for the appellant.

      A. Oakey Hall, for the respondents.
   Barrett, J.:

The demurrer admits the publication, its falsity and malice. Taken as a whole, we think the article was calculated to hold the plaintiff up to ridicule. The question cannot be summarily disposed of, by simply saying that poverty is no crime. To arrive at a just solution, the entire article must be read. Its scope and purpose must also be looked at. Journalistic intrusion into the privacy of domestic life, is sufficiently unwarrantable, even when the truth is reported. But when a person is made the subject of a romance like that in question, admitted to be false in every particular, and to have been published maliciously, it ceases to be a question of taste, and we think that an action will lie.

As an abstract generality, it is true that mere poverty ought not to expose any citizen to ridicule. But the proposition that ridicule is a non sequitur from such an imputation, is not universally true. One may be so circumstanced, and the fact of his alleged misery may be so put, as to excite ridicule and nothing else. Take, for instance, the case of any well known citizen of wealth; assume his retirement from business, so as to eliminate all questions of mercantile credit. While he is still occupying a comfortable house, and perhaps entertaining in a hospitable manner, a sensational account of his misfortune appears in a public journal, stating, as in the present case, that he breathes,” but scarcely “ lives,” in a “ garret; ” that he manages, by constantly sewing for a tailor, to eke out a scanty pittance ” and a wretched life; that, for years, he has lived by the sale of his personal effects, saved from the general wreck; and other minute details. Can it be doubted that such a “sensation,” taken in its length and breadth, and under such circumstances, would tend to expose the person in question to ridicule ?

Again, neither is wealth a crime. Yet a poor man may be held up to ridicule by a false and malicious account of his sudden, though perfectly honest, acquisition of fortune, coupled with an elaborate and highly colored picture of his luxurious life and splendid entertainments.

It comes to this, that the question, whether or no the matter is libelous, so as to be actionable, depends upon the style, scope, spirit and motive of every such publication, taken in its entirety. The inquiry is, then, into the natural effect of the publication, not only upon the general public, but upon the neighbors and friends of the person aimed at.

It follows that the demurrer should have been overruled.

The second count is undoubtedly bad, but it cannot be separately considered, as the demurrer was general, and to the entire complaint.

The order appealed from should therefore be reversed with costs, and the demurrer should be overruled with costs; with leave to the defendants to answer over within twenty days, upon payment of the costs of this appeal, and of the costs of overruling the demurrer below, to be adjusted.

Davts, P. J., and Daniels, J., concurred.

Ordered accordingly.


source: Caselaw Access Project

author: Lawrence, J.:

license: Public Domain

text:
    HENRY OPPENHEIMER v. STUART S. WALKER, BRIDGET McNIFF, Appellant, SAMUEL COOPER, Respondent, and others.

      Surplus moneys—distribution of—junior mortgagees — rights of.

    W., the owner of three lots, executed a mortgage thereon to the plaintiff. Subsequently, and on the 11th day of February, 1873, he mortgaged two of the said lots to one Cooper. On the 7th day of April, 1873, one McNiff, who had been employed by the mortgagor to erect buildings on the three lots, filed- a mechanic’s lien against them. Subsequently the three lots and houses were sold together, upon the foreclosure of the first mortgage.
    Upon an application for the distribution of the surplus moneys, arising upon the sale, the referee found that each of the lots was of equal value, and that each of them contributed an equal amount to the net sum produced by the sale. Held (1), that Cooper was entitled, as between the plaintiff and himself, to insist that the third house, not covered by his mortgage, should be first sold to satisfy the plaintiff’s demand; (2), that Cooper had already acquired this right when the lien of MdNifF was filed, and that the same was not impaired thereby; (3), that the fact that a separate sale was not actually had, was unimportant, as, from the facts found by the referee, the rule could be applied by the court with as much certainty as if there had been a separate sale of each lot; (4), that the surplus moneys should be regarded as arising from the sale of the two houses covered by Cooper’s mortgage, and that he was entitled to have his mortgage paid out of such surplus in preference to McME.
    The costs and expenses of the proceedings on an application for the distribution of surplus moneys, are properly chargeable to the fund.
    Appeal, from an order of Special Term, confirming the report of a referee as to the distribution of certain surplus moneys.

      Wm. 0. Trull, for the appellant, McHiff.

      Abner C. Thomas, for the respondent, Cooper.
   Lawrence, J.:

This action was brought to foreclose a mortgage upon three lots of land, situate on the southerly side of Seventy-fourth street, between the Second and First avenues, in the city of Hew York. Judgment having been rendered for the plaintiff, the mortgaged property was sold. After the payment of taxes and assessments, which were liens upon the mortgaged premises at the time of the sale, and the costs and expenses in the action, there remained, as the proceeds of the sale, the sum of $12,638.48; and after deducting therefrom the sum of $6,524.93, the amount due the plaintiff for principal and interest, there remained a surplus of $6,113.55. As to the proper disposition of which surplus, this controversy has arisen. It appears from the report of the referee, that, on the 11th of February, 1873, the defendants, Stuart S. Walker and Andrew F. Wilson, and their respective wives, executed to the respondent, Samuel Cooper, a mortgage upon two of the three lots, covered by the plaintiff’s mortgage, to secure the payment of a bond for $5,000, with interest, and that, at the time of the referee’s report, there was due upon the said bond and mortgage the sum of $5,621.12, including the sum of $100, paid by said Cooper for premiums in procuring insurance upon the buildings erected on said premises, the mortgagors having made default upon their covenants to effect such insurance.

The mortgage executed to Cooper also covered other property, a portion of which had been sold under foreclosure of prior mortgages, producing only a surplus, after satisfying said prior mortgage, of $18.85.

The appellant, Bridget MaNiff, is the administratrix of James MaNiff. James MaNiff had a contract with Walker and Wilson, the mortgagors, to do certain work in and about the erection of three houses upon the three lots covered by the plaintiff’s mortgage; and, on the 7th of April, 1873, he filed a mechanic’s lien upon the houses for the sum of $1,950, for work done by him under his contract, and unpaid by the owners, Walker and Wilson. The referee reported, that, out of the surplus remaining after paying the taxes and assessments, and the costs and expenses, and the principal and interest due to the plaintiff, Cooper was entitled to be paid the full amount due to him, $5,621.12, and that the balance remaining after such payment, and after payment of the costs, expenses and allowances in this proceeding, should be paid to the appellant as the administratrix of James MaNiff.

I am of opinion that the referee correctly held that Cooper was entitled to have the full amount, due to him, satisfied out of the surplus, before making any payments to the appellant. It is well settled that, where a creditor has a lien upon two funds for the security of his debt, and another party has an interest in only one of the funds, without any right to resort to the other, equity will compel the creditor to satisfy his debt, if possible, out of the fund in which he alone has an interest.

And the rule requiring parcels of land, incumbered by a judgment or mortgage to be subjected in the several order of their alienation by the debtor, is a branch of this rule, It follows from this rule, that the respondent, Cooper, as between the plaintiff and himself, had the right to have the third lot, which was covered by the plaintiff’s mortgage and not by his mortgage, first sold, and the proceeds arising from such sale applied to the payment of the plaintiff’s mortgage; and this right of the respondent had attached long before the appellant’s intestate filed and acquired his lien.

The only difficulty in this case, arises from the fact that the three lots were not sold separately, but in one parcel. The difficulty, however, is only apparent and not real, for the reason that the referee has found that each of the lots was of equal value, $4,212.82, and that each lot contributed that amount toward the net sum produced by the sale, and the rule can therefore be applied by the court, with as much certainty as if there had been a separate sale of each lot. It results then, that the whole proceeds of the sale of the third lot, were more than exhausted in satisfying the plaintiff’s claim, and that, after paying the excess due to the plaintiff, after exhausting the whole of such proceeds, Cooper had the first lien upon the remaining two lots. It is urged by the appellant’s counsel, that Cooper should have made his claim for a sale in parcels, prior to the sale, and that not having elected to do so, he is precluded from now alleging, as against the appellant, that the plaintiff’s claim should first have been satisfied out of the third lot. I do not regard this point as well taken: 1st. Because the finding of the referee, as to the value of each of the lots, and as to the amount for which each of the lots, and as to the amount for which each lot, actually sold, enables the court to apply the rule above stated, as certainly as if the sale had been made in separate parcels. 2d. Because no actual injustice is done to the appellant, in the application of the rule. The right of Cooper was fixed at the time McKlff filed his lien, and he must be deemed to have known that his lien was subject to the right of Cooper to have the proceeds arising from the sale of the third lot, first applied to the satisfaction of the plaintiff’s mortgage.

It is further urged by the appellant’s counsel, that, as Cooper’s mortgage covered other property than that in question here, he should be compelled to resort first to that security for the payment of his mortgage. The answer to this point seems to me to be found in the fact, that it appears by the referee’s report, that one of the other parcels of land covered by Cooper’s mortgage, has already been sold to satisfy a prior mortgage, and has produced only a surplus of $18.85; and also in the fact, that the remaining property subject to said mortgage, as the referee has found, did not belong to either of the mortgagors, but was a part of the separate estate of Mrs. Walker, who was not liable for the debt, and became only a surety for its payment, and who was therefore entitled to have the debt first satisfied out of the property of the principal debtors.

The remaining point argued by the appellant’s counsel, is, that the referee erred in imposing the entire costs of the proceedings upon the appellant.

Upon looking at the exceptions contained in the case, I find no exception upon this point, specifically. The general exception to the report, “for various other errors, insufficiencies and inaccuracies,” is, in my opinion, too general to permit the raising of the point upon appeal.

Even conceding that the point can properly be raised here, I am of opinion that the order directing the expenses of the proceedings to be paid out of the fund, in regard to which the parties were contending, was in accordance with well settled practice

The appellant does not contend that the costs and expenses, as allowed, were excessive or erroneous in amount, and I know of no reason, in the absence of such an allegation on the part of the appellant, why they should not be paid out of the fund.

If the views above expressed are sound, it results that the order appealed from should be affirmed.

Davis, P. J., and Daniels, J., concurred.

Order affirmed, with costs and disbursements.

       Ingalls v. Morgan, 10 N. Y., 179; James v. Hubbard, 1 Paige, 235; Cheesbrough v. Millard, 1 John. Ch., 409; Evertson v. Booth, 19 Johns., 486.

       Ingalls v. Morgan, 10 N. Y., 186, per Denio, J., citing many cases.

       Graham v. Christal, 2 Abb. Ct. Appeals, 268; Newell v. Doty, 33 N. Y., 83.

       2 Barbour’s Chancery Practice, p. 333.


author: Davis, P. J.:

text:
    JAMES C. MILLER, Plaintiff, v. THE MAYOR, Etc., OF THE CITY OF NEW YORK, Defendants.

      Board of Education (chap. 386, Laws of 1851) — liaíüity of city for acts of— suboi’dinatc officers of—pow&i's of.

    The board of education, created by chapter 386, Laws of 1851, was a body corporate, capable of suing and being sued, and the corporation of the city of New York was not liable either for its contracts or torts.
    The trustees of the several school districts were subordinate officers, and all persons dealing with them were bound, in law, to know the powers conferred upon them, and their limitations, and have no remedy for an abuse or excess of such powers, except against the officers chargeable therewith.
    The estoppel which the courts apply to prevent principals, whether natural persons or business corporations, from denying the authority of their general agents while acting within the scope of their apparent powers, has no application to a public officer, professing to discharge official functions, where the question is as to the extent to which such officer may charge, by contract, the government or department of government which creates or controls him.
    A by-law of the board provided that a certain sum of money should be set apart, to be expended in repairs and incidental expenses for the schools of the different wards, and prohibited the expenditure of any sum in excess thereof. The plaintiff performed services in repairing certain of the school-houses, in good faith, and under the directions of the trustees of the ward. The amount expended by the trastees in repairs exceeded the amount appropriated for that purpose. This action was brought to recover the value of such services. Seld

    (1) , that the plaintiff could not have recovered against the board of public education, as the liability was incurred by the trustees in excess of their authority;
    (2) , that the act of 1871, abolishing the board of education, did not create a right of action against the city, which had no lawful existence against the said board.
    Motion for a new trial, on exceptions ordered to be heard in the first instance at the G-eneral Term.
    The. action was brought to recover for services performed and materials furnished in repairing school-houses belonging to the board of education. The by-laws of the board contained, among others, the following section:
    Section 61. The annual aggregate of the expenditures in any ward for any and all purposes other than the salaries of teachers and janitors, gas and the payment of books, stationery and fuel furnished through the depository by the committee on supplies of the hoard, shall not exceed a sum equal to thirty-three and one-third cents for each amount of the total average attendance of the schools in the ward, as verified by the principals of the schools, on the thirty-first day of December next preceding.

      Amos G. Hull, for the plaintiff.
    The plaintiff had a right to assume that the trustees were dealing within the scope of their powers. (Merchants' Bank v. State Bank, 10 Wall., 604, and cases there cited.) The by-laws of the board could not affect third persons unless expressly brought to their notice. (Mechanics' Bank v. Smith, 19 Johns., 115; 26 Barb., 595.)

      H. J. Dean and B. Ddafield SmithT for the defendants.
    The board of education was not bound by the act of the trustees. (Donovan v. Mayor, 33 N. Y., 293; Jones v. Cincinnati, 18 Ohio, 318; Goodrich v. Detroit, 12 Mich., 270; Philadelphia v. Flanir gen, 47 Penn., 382; Philadelphia v. Johnson, id., 382; Wallace v. San Jose, 29 Cal., 180.) The plaintiff was bound to know the limitation of the power of the trustees. (Dillon on Mun. Corp., vol. 1, p. 464; Fairtitle v. Gilbert, 2 Durn. & East, 169; Hodges v. Buffalo, 2 Denio, 110; Brady v. Mayor, 2 Bosw., 173; Appleby v. Mayor, 15 How., 428; Supervisors of Renn. v. Bates, 17 N. Y., 242; Smith v. Mayor, 4 Sandf., 227; 6 Seld., 508; Butler v. City of Charlestown, 7 Gray, 12.)
   Davis, P. J.:

The plaintiff performed the services and furnished the materials for which this action was brought, in repairing school-houses in the twenty-second ward of the city of Hew York, in the year 1870, at the request of some of the school trustees of that ward. The work was done at different dates between March first and December thirty-first of that year, in small jobs of less than fifty dollars, each.

The board of education, created by chapter 386 of the Laws of 1851, was at that time in existence. It was a body corporate, capable of suing and being sued, and the corporation of the city of New York was not liable either for its contracts or torts. The trustees of the several districts were subordinate officers, to some extent under the control of the board of education. The funds of the board to meet expenses incurred by it were provided, pursuant to the third section of the act of 1851, and the fifteenth section of the same act, by the board of supervisors, upon estimates to be made by the board of education, which were additional to the other amounts required by the fifteenth section. The board of education was authorized to make by-laws; and one of such by-laws provided that a sum of money, equal to thirty-three and one-third cents for each “ unit of attendance” at the schools of the ward, be set apart, to be expended in repairs and incidental expenses; and all expenditure for such purposes, in excess of the sum so fixed, was prohibited. The amount allowed, under this by-law, to the trustees of the twenty-second ward, for the year 1870, was $2,566. There was a surplus, in the year 1869, of $138.76, which, in addition to the allowance, gave the trustees $2,704.76, as the sum which they had authority to expend for repairs, in the year 1870. All of this sum was paid out by the trustees, without applying any part of it to the bills of plaintiff now in suit, although other bills for like services were paid to him. By chapter 574 of the Laws of 1871, the board of education was abolished, and a new department in the government of the city of New York, called the department of public instruction, was created, to have the same powers and discharge the same duties which were before vested in the board of education. No provision was made in the act to charge the debts and liabilities of the corporation abolished upon the city. By chapter 112 of the Laws of 1873, a new board of education was created, which succeeded to all the powers vested in the prior board of education, and now is claimed to exist, as an independent corporation, and not as an executive department of the city.

The plaintiff’s action was brought after the last whirl in the wheel of legislation, had turned up the last named board of education. While the department of public instruction had charge of affairs, divers accounts contracted by the trustees of school districts, including, as is understood, the plaintiff’s accounts, were brought to the attention of the commissioners having charge of that department, and were referred to a committee, who made a report to the board of instruction. That report was put in evidence on the trial by the plaintiff. It contains, doubtless, a correct and fair statement of the facts touching the accounts and expenses, with the views of the committee as to what ought to be done in terms that meet our cordial approval. After a recital of divers facts, the committee proposed certain “ preambles and resolutions,” the material portions of which are as follows: Whereas, the school trustees of the several wards, in the administration of their school duties during the years 1869 and 1870 (mainly during the year 1870), incurred for repairs to the school buildings and other incidental expenses, sundry bills now on file in the office of the clerk of this board, in amounts beyond the allowances to said wards for these purposes, made under sections 61 and 62 of the by-laws, amounting in the aggregate to about the sum of twenty-five thousand dollars ($25,000); and whereas, the said bills were incurred from an apparent necessity, and are mainly due to mechanics who performed the work and furnished the materials, in good faith, upon the requisitions of the trustees, and in entire ignorance of any legal obstacle to their prompt payment; resolved, that an application be, and the same is hereby authorized to be made by the officers of this board to the financial authorities of the city and county, for an appropriation of the sum of twenty-five thousand dollars ($25,000), in addition to the amount appropriated for public instruction for 1873, by the board of apportionment, said $25,000, or so much of said sum as may he required, to be applied, when received by this board, in liquidation of all claims for work and materials, incurred by the school trustees of the respective wards, in the years 1869 and 1870, upon their approval by the superintendent of buildings and the committee on buildings, repairs, and furniture, the payment of said claims to be made in accordance with the rules of this board governing expenses incurred by school trustees.”

The preambles and resolutions were adopted by the board of commissioners; but it was not shown that the board of apportionment ever acted upon them, or made the appropriation requested. We regret to say that, upon this state of facts, we think the plaintiff cannot maintain his action against the city; for two reasons. The liability was incurred by the trustees of the school district in excess of their authority. They had no power to subject the board of education to liability for such expenses beyond the appropriation ; and, however thoroughly they may have acted in good faith, in incurring the expenses, that is to say, in making none that they did not regard as necessary or proper, yet the limit of their power could not be extended, on any such consideration. They were charged with certain official duties the performance of which was regulated and limited by well defined restrictions. All persons dealing with them were bound in law to know the powers conferred upon them, and their limitations, and have no remedy for an abuse or excess of such powers, except against the officer chargeable therewith. To hold otherwise would be to unloosen all the agencies of municipal and other governments to create unlimited and ruinous obligations. We have so often been constrained to apply this rule in suits against the city that it seems unnecessary to cite authorities. The plaintiff could not have maintained his suit against the board of education before its abolition by the act of 1871. Having no legal right of action against that board, it is impossible that any logical effect of the law abolishing that corporation, can create a right of action against the city, which had no lawful existence against the board of education. There was nothing in the act which expressly created such a liability, and nothing in the facts from which it can be implied. The subsequent action of the commissioners of public instruction could have no such effect. They recognized a moral and not a legal obligation, and recommended such action on the part of the board of apportionment, as would enable them to discharge that obligation; but, failing to get the money asked for by their resolution, no liability can spring out of their commendable effort.

The question of the liability of the city, in such a case, has been lately passed upon by Robinson, J., of the Hew York Common Pleas, in the case of Green v. The Mayor. That able and careful judge reached the same conclusion we have, as appears by his findings and decision in the case, which we have inspected. The authorities on which the learned counsel for the plaintiff relies, have no application, we think, to a case of this kind. The estoppel which the courts apply to prevent principals, whether natural persons or business corporations, from denying the authority of their general agents while acting within the scope of their apparent powers, has no footing where the relation to the transaction of the alleged agent is that of a public officer, professing to discharge official functions, and the question is, the extent to which such officer may charge by contract the government or department of government which creates or controls him.

The motion for judgment must be denied, and a new trial ordered, with costs to abide event.

Daniels and Barrett, JJ., concurred.

Ordered accordingly.

      Laws of 1851, p. 735.

       Terry v. The Mayor, 8 Bosworth, 504; Treadwell v. The Mayor, 1 Daly, 123; Ham v. The Mayor, 37 Superior Court Reports, 458; Gildersleeve v. The Board of Education, 17 Abb., 201.

       Chap. 386, Laws of 1851.


text:
    FREDERICK BIELSCHOFSKY, Plaintiff in Error, v. THE PEOPLE OF THE STATE OF NEW YORK, Defendants in Error.

      False pretenses—OTuwacter of prisoner—when may he attacked—Scienter—Turn proved.

    Where, in an indictment for obtaining money by false pretenses, several representations are set out, it is sufficient to show that any one of such representations was false, and fraudulently made, provided it be proved to the satisfaction of the jury, that such representation was a substantial inducement to the parting with the money.
    The plaintiff in error was indicted, jointly with two others, for obtaining money by false pretenses. Upon the trial the prosecution was allowed to show that the plaintiff in error, with one of his coindictees, had attempted to obtain money from another woman, by means of the same false representations which were set out in the indictment. Held, that this evidence was admissible to show the intent of the accused in the particular offense, and also as tending, to show the known falsity of the pretext upon which the money was obtained.
    Evidence of previous offenses of the accused may be given, in order to show the intent with which the particular transaction was committed, although it may incidentally prejudice his character in the minds of the jury.

      Wbit of error to the court of General Sessions of the city and county of Hew York, to review the conviction and sentence of the plaintiff in error, upon an indictment charging him jointly with two other persons, with obtaining money by false pretenses.
    On the 15th of September, 1873, Bernheimer and the plaintiff in error called at the house of Catharine Wulff, and represented to her that the former was president and the latter “ book-keeper ” of an insurance company, in which her late husband, then recently deceased, had taken a policy in her favor, and that the company were ready to pay her $300 whenever she should call for it. Shortly after their arrival, Oppenheimer called, and inquired for somebody not living in the house. When informed that there was no such person there, he appeared greatly grieved, and told a story of his distress and want. Bernheimer seemed to sympathize with him and handed him fifty cents, which he refused to accept, saying that he was a rich man, just arrived in the country; that he had many valuable goods in the custom-house, and that if he could only get $150 to pay the duties his troubles would be over. He produced two watches which he proposed to leave with Mrs. Wulff, as security for the repayment of that sum, if she would lend it to him. The watches were inspected by Bernheimer, who declared that they were worth $300, and offered to buy them at that price. Oppenheimer refused, saying that they belonged to relatives in Hew Orleans, and were not for sale. Subsequently, Mrs. Wulff handed $150 to Bernheimer, who passed it to Oppenheimer. The latter then delivered the watches and left the house, accompanied by the plaintiff in error, who went with him, at Bernheimer’s suggestion, “ so that nothing would happen to him.” Soon afterward Bernheimer himself left. Hone of the parties ever returned. It was proved upon the trial that the true value of the watches was not above seventy or eighty dollars.
    Upon the question of the knowledge of the plaintiff in error that the watches were not worth the sum pretended, and in order to show that he and Bernheimer were not themselves deceived, but that all three defendants were engaged in a conspiracy to defraud Mrs. Wulff, the district attorney was permitted, under objection, to prove a transaction almost precisely similar, occurring on September thirteenth, two days previous, between one Eliza Schmidt and the two defendants, Bernheimer and Bielschofsky.

      Wm. F. Kmtzmg, for the plaintiff in error.

      Benj. K. Phelps, district attorney, for the defendant in error.
   Davis, P. J.:

The plaintiff in error was indicted jointly with two other persons for obtaining $180 from one Catharine Wulff, by means of false pretenses and representations. The indictment set out several alleged representations, each of which was averred to have been false and fraudulent. The evidence tended to show the making of the several representations ; but direct evidence was given of the falsity of but one. The court was asked to direct an acquittal, on the ground that the prosecution had not negatived the allegation that one of the parties had goods at the custom-house, which were held for non-payment of duties, and would be sold, if the duties were not paid thereon, on that day.

The court held, in substance, that it was sufficient to show the falsity of any one of the alleged pretenses which induced the complainant to part with her money. We think the ruling was correct. It was sufficient to show that one of the material representations alleged was false and fraudulently made, provided it was proved to the satisfaction of the jury that such representation was a substantial inducement to the parting with the money. Besides, it could hardly be said, with accuracy, that there was no evidence tending to show that the other representations were not also false and fraudulently made, because evidence was given, proper for the consideration of the jury, tending to establish a conspiracy on the part of all the persons indicted, to obtain Mrs. Wulff’s money by false pretenses. And if the jury were satisfied of the existence of such a conspiracy, and had proof that a material portion of the representations made in carrying it into effect were false, they might properly find, in the absence of all explanation, that the other statements were made for the same purpose, and were also untrue.

The conduct and declarations of the several parties, together with the proof showing that one of them, with the prisoner, went through the same performance two days before, for the purpose of getting money from another woman, and the verisimilitude of their acts and statements on both occasions, were quite enough, we think, to justify the court in submitting to the jury, whether or not the whole story was not a preconcerted scheme to accomplish a criminal purpose.

The other point made in the case is upon the admissibility of the evidence showing that the plaintiff in error, together with one of his coindictees, practiced the same fraud on another person a day or two prior to the commission of the offense charged in the indictment, in which the prisoner acted the same part played by another of the parties on the occasion of obtaining the money of Mrs. Wulff.

It seems to be supposed by the learned counsel for the plaintiff in error, that this evidence was given to affect the general character of his client. It was offered for no such purpose. It is well settled, that evidence of the general bad character of the accused cannot be given on the trial, unless he first opens the door by giving evidence of his general good character. But this rule does not go the length to exclude evidence given for other and competent purposes, because its incidental or indirect effect may be to prejudice the character of the accused in the minds of the jury. Such a rule would exclude proof of the crime charged in the indictment, because it might be well argued that proof of the party’s crime could not be given without impairing to a greater or less extent the value of his presumed good character.

The evidence offered of the previous like transactions of the accused, was given to show the quo animo, or intent, of the accused in the particular offense charged, and also0 as tending to show the known falsity of the pretexts upon which the money of Mrs. Wulff was obtained.

For these purposes we think it was competent; and the effect to which it was entitled, was left by the court fairly and entirely to the jury.

The cases are very numerous which hold, with more or less directness, the propriety of such evidence.

The judgment must be affirmed.

Daniels and Barrett, JJ., concurred.

Judgment affirmed.

       People v. Haynes, 11 Wend., 557; People v. Herrick, 13 id., 87; Fowler v. The People, 18 How., 493.

       See Wharton’s Crim. Law (6th ed.), sec. 650; Wood v. U. S., 16 Peters’ S. C. Rep., 360; Commonwealth v. Tuckerman, 10 Gray, 173; Copperman v. The People, 1 Hun, 115, and cases there cited; 3 Greenleaf Ev., § 15.


author: Daniels, J.:

text:
    HARRY S. HOUSE and HOWARD E. KING, Surviving Executors, etc., Plaintiffs v. SIDNEY RAYMOND and another, Defendants.

      1Vill—Life estate—Title to real property when it passes to executors—Effect of life estate in the construction of a clause—restand residue of estate —Power of sale— discretionary— death of one of the appointees of the power.

    Plaintiffs’ testator by his will devised and bequeathed the use of a homestead and all the personal property therein to his wife, and'also gave “unto her during her natural life the use of $20,000.” Meld, that the widow took only a life estate in the homestead and in the personal property therein.
    The will further provided: “I hereby give, etc., unto my executors all the rest, residue and remainder of my real estate and personal estate, in trust, nevertheless, for the uses and purposes hereinafter named, to wit: First, to divide the same into seven equal parts: ” then followed directions that the several parts be kept invested, and the income thereof paid over to certain beneficiaries in the will mentioned. Meld, that the effect of the foregoing provisions was to give to the executors for the purposes of the trust, all the testator’s property (real and personal) not required to pay legacies, subject to the provisions made for his wife; and that the executors were to invest the same as far as it was capable of investment, and divide and apply the income for the benefit of the children and grandchildren during life.
    The testator authorized his executors to sell his real estate whenever they and his wife (his executrix), unanimously thought that such sale would be advantageous to her estate. Meld, that, after the decease of his wife, his surviving executors were authorized to sell the real property.
    Case agreed upon, submitting controversy without action, pursuant to section 72 of the Code of Procedure.
    Benjamin Raymond died on the 17th day of November, 1870, at Malone, Franklin county, in this State, having previously thereto duly made his last will and testament, bearing date the 24th day of May, 1870, which was afterward duly proved and admitted to probate as a will of real and personal estate.
    At the time of his death the said Benjamin Raymond had three parcels of land in Malone village, one a small lot upon which was a small building called his office; also a small lot upon which was a cheap dwelling-house, let to a tenant; and a lot of nearly an acre, upon which were the dwelling-house in which he resided, and the usual outbuildings, which was called his homestead. He owned' no other real property. Neither of said parcels of land could be divided into seven or even five parts without the total destruction of its value. He left a considerable personal property, consisting of money, bonds and mortgages, stocks, promissory notes, and other securities, not referred to or disposed of in the provisions of said last will and testament, preceding the sixth paragraph thereof.
    He left him surviving his widow, Jane L. Raymond; two children, Sidney Raymond and Augusta E. Flanders, the above named defendants; and three grandchildren, Benjamin E. Raymond, son of the former, and Wallace R. Flanders and Ella J. Flanders, children of the latter, all of whom are of age. He left no other children or grandchildren, and these are all now living.
    The first paragraph of the will reads as follows:
    “ 1st. I hereby give, devise and bequeath unto my beloved wife, Jane L. Raymond, the use of my homestead, and all the personal property thereon at my decease, except my safe and money, bonds, notes, contracts, mortgages and obligations of every nature and description. I also give, devise, and bequeath unto her during her natural life the use of $20,000; such sum to he set apart for that purpose, out of the best securities I may have at my decease, by my executors; and in the event my said wife shall desire to use any part of said sum of $20,000, I give and devise the same, or so much thereof as she may wish, to her, and direct my executors to pay the same to her.”
    By the second, third, fourth, and fifth paragraphs of this will, he gave certain legacies in money to the Malone Cemetery Association and his children and grandchildren.

      The sixth paragraph of his will reads as follows: ■
    “ 6th. I hereby give, devise, and bequeath unto my executors hereinafter named, all the rest, residue and remainder of my real estate and personal estate, in trust, nevertheless, for the uses and purposes hereinafter named, to wit: First, to divide the same into seven equal parts; two of which said parts my executors shall keep invested for the use and benefit of my son Sidney ; two they shall keep invested for the benefit of my daughter Augusta E.; one of said parts for each of my grandchildren, Wallace, Benjamin and Ella. The income whereof my said executors shall pay to said devisees, or expend the same for the use and benefit of said devisees, from time to time, as they may deem advisable, so long as each of said devisees shall live.”
    Then follow the seventh and eighth paragraphs of the said will, which contain nothing material to the questions in controversy.
    The will then proceeds:

      “ 9th. It is my wish, and I hereby direct my executors, to allow my son Sidney, if he may desire it, to have the use of my office building and land attached thereto, by his paying the taxes and insurance thereon, and seventy dollars annually as rent, so long as he may choose to occupy or use the same.”
    “ 10th. I hereby order and direct that any part or portion of the $20,000 devised to my wife Jane, which shall not have been disposed of by her at her decease, to be added to the parts or portions sixthly above described, and to be divided and disposed of in precisely the same manner as therein and thereafter stated.” “ llthi I hereby authorize and empower my executors hereinafter named to sell and dispose of any and all my real estate, and good conveyances make thereof, whenever they and my wife shall unanimously think that such sale will be advantageous to my estate, and to that end I hereby invest them, my said executors, with the title thereto, and with the full power and authority to make such conveyance.”
    Lastly, the said testator appointed his said wife, Jane L. Raymond, executrix, and his friends, Harry S. House and Howard E. King, the executors, of his said last will and testament, and as such trustees of the estate, as thereinbefore stated.

      The testator’s widow duly qualified and acted as executrix and trustee. On the 22d day of July, 1874, she died, without having used or disposed of any part of the principal of the said sum of $20,000, directed by the said first paragraph of said will to be set apart for her use during her natural life.
    The said Sidney Raymond has hitherto, since the decease of said testator, occupied and used the office and office lot upon the terms and conditions prescribed in the ninth paragraph of the will. No debts of the testator were unpaid at the time of decease of said widow.

      Horace A. Taylor, for the plaintiffs.

      Joseph jR. Flanders, for the defendants.
   Daniels, J.:

The first point requiring consideration in the disposition of this case, is, whether the testator’s widow took the personal property in the homestead absolutely, or only for the period of her natural life; and that must be determined from what is expressed by the first paragraph of the will. That paragraph, so far as it is now material to refer to it, is as follows: “I hereby give, devise and bequeath unto my beloved wife, Jane L. Raymond, the use of my homestead, and all the personal property thereon at my decease, except,” etc.

After excepting certain securities, money, and the safe containing them, he proceeded by adding: “I also give, devise and bequeath unto her during her natural life, the use of $20,000,” * * * “ and in the event my said wife shall desire to use any part of said sum of $20,000, I give and devise the same, or so much thereof as she may wish, to her, and direct my executors- to pay the same to her.” The entire scope and design of these provisions seem to have been to provide a suitable support and maintenance for his wife during her natural life, limiting the benefit of the bequests and devises for her to that period of time. It appears to have been the testator’s design to provide amply for that object while she lived, and then to have the property, unexhausted in accomplishing it, returned to the body of his estate at the expiration of that period. And the terms made use of in the first clause were judiciously selected to secure that result. He did not devise her the use of his homestead during life, and bequeath absolutely to her the personal property thereon at the period of his decease, subject to the exception afterward declared, but simply the use of both. That term was employed to qualify the interest given her in the personal property, as well as in the homestead itself. It was of such a nature as to render the use of the homestead comfortable and convenient, and was undoubtedly made to accompany it for that reason. Other terms would be required to be added to the clause in order to give her any greater interest than that in the personal property referred to.

It is next claimed that the executors took no title to the testator’s real estate, because he directed them to divide and invest the property left by him, for the benefit of his children and grandchildren. But while that was the direction which was given, a construction based upon that circumstance, which would exclude the realty, would be directly in conflict with an express devise of the real estate, made in the same subdivision of the will. Upon that subject the testator declared: I hereby give, devise and bequeath unto my executors hereinafter named, all the rest, residue and remainder of my real estate, and personal estate, in trust nevertheless, for the uses and purposes hereinafter named, to wit: First, to divide the same into seven equal parts, two of which said parts my executors shall keep invested for the use and benefit of my son Sidney; two they shall keep invested for the benefit of my daughter Augusta E.; one of said parts for each of my grandchildren, Wallace,.Benjamin and Ella. The income whereof my said executors shall pay to said devisees, or expend the same for the use and benefit of said devisees, from time to time, as they may deem advisable, so long as each of said devisees shall live.” This was a valid trust, under the statutes of this State, and was in terms made so extended as to include all the testator’s property, not previously disposed of.

But it is contended that such could not have been the intention of the testator, because the real estate, particularly the homestead devised to his wife for life, could not be divided and invested as it was afterward directed his property should be; and that the proceeds to be divided, being denominated “ income,” did not properly include the profits of real estate. Besides that, the unexpended residue of the $20,000, was directed to be added to the portions of the estate to be invested and divided. And because the remainder of the homestead estate was not included in the same direction, it is claimed that this omission is evidence that it was not the testator’s purpose to include it. But neither nor all of these reasons would justify the exclusion of the real estate, in view of the positive direction contained in the will to the contrary. The testator, upon this subject, used clear and comprehensive language, declaring it to be his design, for the purposes of the trust, to devise “all the rest, residue and remainder” of his real, as well as his personal estate to the executors. And that included the remainder of the estate in the homestead, remaining after the life estate created for his wife, as well as the other two pieces of property of that nature which he owned at the time of his decease, and the personal property bequeathed for life with the homestead. These terms were sufficient for that purpose. And, as long as that was the nature of them, a repetition of the purpose expressed by them was not afterward essential in order to render them effectual. The eonstniction which has been contended for, would result in excluding the direction concerning the rest, residue and remainder of the real estate entirely from the will. And that it is the duty of the court to avoid, by harmonizing the directions, relied upon as inconsistent with the design of including that species of property, so that they may all be maintained together. And that can very well be done by limiting the directions given to the executors to invest, to the personal estate, which was all that in its nature was susceptible of investment. For that reason the testator probably so intended, though the intention was not clearly expressed in words. It is, however, to be inferred from the 'fact that both real and personal property was given in trust to the executors, and from the further circumstance that he appears to have designed that his children and grandchildren should, by means of the trust, be secured the entire benefit of all his property, so far as it was not specifically devised for the enjoyment aud support of his wife and the payment of certain legacies. The income directed to be so applied is entirely consistent with this conclusion, for the terms used to describe it are broad enough to include the rents and profits of the real estate, as well as the interest derived from the investment of the personal property. It was claimed that the direction to allow the testator’s son, Sidney, to have the use of the office and the land connected with it, was opposed to such a construction of the sixth paragraph of the will. But as he was required to pay the executors an annual rent of seventy dollars for such use and occupancy, no such effect can be attributable to it; for its payment enabled them to make precisely such a division of the proceeds or income of the property as they were required to for the purpose of executing the trust previously declared. The effect of the will was to devise and bequeath to the executors, for the purposes of the trust, all the testator’s property not required to pay the legacies, subject to the provision made for his wife, which they were to invest, so far as it was capable of investment, and divide and apply the income, in the manner particularly specified, for the benefit of his children and grandchildren during life.

Power was given the executors to sell and dispose of all or any of the testator’s real estate whenever they and his wife, who was also nominated and acted as executrix, should unanimously think such sale advantageous to the estate; and they were invested, in that case, with full power and authority to convey it. The plaintiffs, who are the surviving executors, claim that they may now lawfully execute this authority.

While the testator’s wife was living, her assent was undoubtedly required to the conveyance of a valid title by means of the power. The right to sell was rendered conditional upon the unanimous conclusion of all, that the sale would be advantageous to the estate. It was a discretionary authority, in the exercise of which all were required to concur. But it was no more than that, for a dissent of either one of the three would prevent it from being used; and the fact that the authority may be of that nature does not restrain the survivors from executing it. The statute upon that subject is general, applying to discretionary and qualified authority to sell, as well as those of a more absolute and unrestricted character. The provision made upon the subject is, that, “ where a power is vested in several persons, all must unite in its execution; but if, previous to such execution, one or more of such persons shall die, the power may be executed by the survivor or survivors; ” and it seems to be clearly applicable to the present case.

The same construction, in this respect, has been given to another statute, in principle very much like this provision. That is the statute giving the acting executors full power to act under the will nominating them, where others, jointly selected, decline to accept the trust, In that case, the acting executors may exercise even a discretionary authority, though it may have been jointly conferred upon them with others, also designed to possess and execute it. And there is no substantial distinction in principle between that provision and the one more especially relating to this case ; for one provision confers upon the surviving recipients of a power the same authority which the other does upon acting executors, where others selected to exercise the authority with them decline to accept it. And, under the terms of that provision, no good reason appears for doubting the power of the surviving executors to exercise the authority to sell, provided they are satisfied that a sale of the real estate will be advantageous to those interested in the estate left for them by the testator. Judgment should therefore be directed, adjudging that the widow had but a life estate in the personal property bequeathed with the homestead; that the real estate, including the remainder after the widow’s life estate in the homestead, was devised to the executors for the purposes of the trust created by the sixth paragraph of the will; that the same disposition was made of the personal property bequeathed with the homestead, and of the residue of the $20,000 undisposed of by the widow; and that the surviving executors have the power to sell and convey any or all the real property, provided they concur in the conclusion that the sale will be advantageous to the testator’s estate; and for the recovery of the taxable costs of both parties, to be paid by the executors out of the shares of the defendants in the funds in their hands.

The shares of the grandchildren should not contribute to the expense of the litigation, because they are not made parties to the proceeding.

Davis, P. J., and Lawrence, J., concurred.

Ordered accordingly.

       Vernon v. Vernon, 53 N. Y., 351.

       Youngs v. Youngs, 45 N. Y., 254.

      Salisbury v. Morss, 7 Lans., 359, 362, 363.

      3 R S. (5th ed.), 27, § 132.

       3 R. S. (5th ed.), 197, § 66.

       Taylor v. Morris, 1 Com., 341.


text:
    THE BOARD OF COMMISSIONERS OF PILOTS, Appellant, v. PAUL N. SPOFFORD and others, Executors, etc., Respondents.

      Code, | 385 — meaning of word “costs" in — when party entitled to costs.

    Under the Code, costs are allowed to the prevailing party, either absolutely or conditionally. When given absolutely, the statute fixes the right, and the courts cannot annul the statute. But, when given in the discretion of the court, there are no costs unless the court awards them.
    When, upon an appeal, a new trial is ordered, or a judgment is affirmed in part and reversed in part, neither party is entitled to costs without the express adjudication of the court. Silence is a denial; and the addition of the words, “ without costs to either party,” adds nothing to the legal effect of an omission to award them.
    Section 385 of the Code requiring the plaintiff, in the case provided for, to pay “ defendant’s costs,” means only such costs as are legally allowed, either by statute or in the discretion of the court, and is not intended to limit, or in anywise to interfere with, the discretionary power over costs which is conferred on the courts, in any of the various steps or proceedings that may be taken in the progress of the suit.
    Appeal from an order of Special Term, affirming a taxation of costs by the clerk. The appeal is presented upon the following agreed statement of facts:
    The action was brought, March 27, 1865, by the plaintiff against the testator of the above named defendants, for the recovery of ninety-six penalties, of $100 each, for the violations of the pilot law. The defendant, before answer, made an offer of judgment, under section 385 of the Code, for $100, the amount of one penalty, and interest, with costs to the time of offer. The offer was refused.
    Defendant answered, and the cause was tried at the circuit; whereupon the plaintiff recovered for forty-six penalties, $4,600, the amount which it had been stipulated before the trial that the controversy should be limited to, on which judgment was entered, with costs. On appeal by defendant to the General Term, the judgment was affirmed, with costs. The defendant thereupon appealed to the Court of Appeals, where the judgment was “ reversed, except as to one penalty, with costs included in the judgment, without costs to either party in the Court of Appeals.” The offer of judgment did not appear in the printed case on appeal; the defendant then made a motion to correct the remittitur before the Court of Appeals, and an order was thereupon made by said court, on the 2d day of July, 1871, modifying the judgment of said court, by striking out the words, “ with costs included in the judgment,” and making the same read, “ judgment reversed, except as to one penalty, without costs to either party against the other in this court.” The remittitur having been sent down, the defendant presented a bill of costs for the circuit and General Term, which was taxed September 14, 1871, by the clerk, at $360.97, under plaintiff’s exception. From this taxation plaintiff appealed to the Special Term, on the ground that defendant was not entitled to costs of General Term. The Special Term thereupon ordered that the costs be retaxed, and that the defendant be allowed costs from the time of the service of the offer of judgment, to and including the trial, and be not allowed costs of General Term, and that said costs, as retaxed, be set off against the penalty recovered by plaintiff. Plaintiff’s costs, before offer of judgment, were then taxed at $30.88.
    The defendant' then appealed to the General Term, which affirmed the order of the Special Term, with costs. Defendant then appealed to the Court of Appeals, where the orders of General Term and Special Term were reversed, with costs, and judgment ordered in favor of defendant “ for their costs subsequent to the failure of the respondent to accept the offer, including the costs of the appeal to the General Term, to be adjusted, with costs of motion and the appeal from the order from Special to the General Term, and from the latter to the Court of Appeals.”
    The second remittitur having been sent down, the present defendants presented and the clerk taxed a full bill of costs, under plaintiff’s exception, including those of the Court of Appeals on appeal from the judgment.

      Plaintiff appealed to the Special Term, where the said taxation was affirmed, and the order now under review granted.
    The only question involved upon this appeal is, whether defendants were entitled to costs in the Court of Appeals, on the appeal from the judgment.

      Wm. Alim Butler, for the appellant.

      William G. Cooke, for the- respondents.
    The .right of the defendant to costs, under section 385, is an absolute one, and the Court of Appeals had no power to withhold them from him. (Wright v. Briggs, 2 Hill, 77; Sharp v. Speir, 4 id., 76; Budd v. Jackson, 26 How., 398; Peet v. Warth, 1 Bosw., 653.)
   Davis, P. J.:

It is insisted on the part of the respondents, that the defendants had an absolute right to all the costs in the action subsequent to the offer of judgment; and that this right is secured by section 385 of the Code of Procedure, which declares, that, “ if the plaintiff fail to recover a more favorable judgment, he cannot recover costs, but must pay the defendant’s costs from the time of the offer.” It may be conceded that this position is correct, in respect of all costs given by statute. Such costs become, by operation of law, the defendant’s costs,” in a case of the kind before us, and it needs no order or adjudication of the court to confer them, nor can such order or adjudication take them away.

That was in substance held by the Court of Appeals, in Ayers v. The Western Railroad Corporation, wherein it was adjudged that the addition of the words, “ with costs” or “ without costs” to a judgment of that court, cannot affect the right of the prevailing party, in cases where the costs are not in the discretion of the court.

Costs under the Code are the mere creature of statute. They are allowed to the prevailing party either absolutely or conditionally ; and in both cases, when allowed, they are regulated as to amount. Where given absolutely, the statute fixes the right, and the courts cannot -annul the statute. But where given conditionally, or, more properly speaking, in the discretion of the court, there are no costs unless the court, in the exercise of its discretion, awards them. This latter branch of the subject is regulated by section 306 of the Code, which immediately follows the two sections declaring where plaintiffs or defendants shall be allowed costs “ of courseIt provides that, in other actions costs may be allowed or not, in the discretion of the court,” and, after providing for the case of several defendants where plaintiff fails to recover against all, it further declares that, in the following cases, the costs of an appeal shall be in the discretion of the court:

“ 1. When a new trial shall be ordered.
“ 2. When a judgment shall be affirmed in part and reversed in part.”

No costs are allowed by the statute to any party in either of these eases without the express adjudication of the court. Silence is a denial of them; and the addition of the words, “without costs to either party,” adds nothing to the legal effect of an omission to award them, but is the customary form of advising the parties that the subject has been considered by the court which declines to exercise its discretion in favor of either party.

In this case, the plaintiff had recovered $4,600. The defendants had appealed from the entire recovery, upon questions of grave importance affecting equally each of the forty-six penalties. Those questions were decided adversely to them; but upon the point raised by defendant, that there could be a recovery in the action for but one penalty, they succeeded in reversing the judgment in part, while the plaintiff succeeded in affirming it in part. It is difficult to see why this is not the exact case in which, under section 306 of the Code, the question, whether there are any costs for either party on the appeal, did not altogether depend upon their allowance by the court, nor why, when the court expressly pronounced its judgment, without costs of the appeal to either party,” there could remain a doubt that costs on that appeal had no legal existence.

It is claimed, however, that section 306 is inconsistent with the provisions of section 385, and therefore that the latter must prevail. We think there is no inconsistency. The latter section declares that the plaintiff “must pay the defendant's costs from the time of the offer'' But what are “the defendant’s costs?” Clearly the costs allowed by statute, or by the court where the power of allowing them is relegated by statute to its discretion. The former the defendants have as matter of right, and the latter also when the court uses its discretion in their favor; but when, in respect of the latter, the court adjudges not to allow costs at all, it seems almost a reductio ad alsurdum still to insist that there is any such thing as “ defendant’s costs.”

The court having unquestionable power “to affirm in part and reverse in part,” and having exercised that power, the case clearly existed in which no costs of the appeal are given to either party unless the court in its discretion allows them. It is suicidal therefore, to argue that the court had no power to say anything on the subject, since it is plain that until the court does speak, there is no such thing in the particular proceeding as costs for either party.

The 385th section, in requiring the plaintiff, in the cases provided for, to pay “ defendant’s costs,” must be held to mean only such costs as are legally allowed either by statute, or in case of discretion, by the court, and is not intended to limit, or in any wise to interfere with, the discretionary power over costs which is conferred on the courts, in any of the various steps or proceedings that may be taken in the progress of the suit.

Since the final judgment, the question of costs in this case has been twice before the Court of Appeals, in forms incidentally involving the question now before us, and that court, in the order on the appeal from the General Term, gave explicit directions as to what costs should be taxed. We think that was a substantial adjudication of the question involved in this appeal. But if it were not, we are of opinion that the respondents have no legal right to tax costs on the appeal from the judgment to the Court of Appeals.

The order appealed from should be reversed, with ten dollars costs of this appeal, besides disbursements; and the clerk should be directed to strike out the items for costs, etc., of the Court of Appeals.

Daniels and Lawrence, JJ., concurred.

Ordered accordingly.

      49 N. Y., 660.


text:
    THE BOARD OF COMMISSIONERS OF PILOTS, etc., Appellant, v. PAUL N. SPOFFORD and others, Executors, Respondents.

      Code, §§ 385, 308 and 309—Bxt/ra allowance — when may he granted.

    Where a defendant recovers a judgment for the costs accruing subsequent to an offer to allow judgment to be taken against him, made in pursuance of section 385 of the Code, such judgment may, under proper circumstances, be the basis for an allowance under sections 308 and 309 of the Code.

      Brady v. Bwrbrow (3 E. D. Smith, 78) followed.
    Where either party is entitled to recover costs, under section 385 of the Code, such costs are not restricted to those given by section 303, but include the allowance, which may be given by the court, under sections 308 and 309.
    The defendants’ costs were taxed in 1871. On July 1, 1874, an application was made for an extra allowance. Held, that the defendants had waived their right to move for an allowance.
    Appeal from order of Special Term, granting additional allowance of costs to defendants.

      Wm. Allen Butler, for the appellant.

      Wm. G. Qooke, for the respondents.
   Davis, P. J.:

This action was brought by the plaintiffs to ■ recover ninety-six penalties of $100 ea'eh, for alleged violations of the pilot laws, in the employment of unlicensed pilots. The defendants offered judgment, under section 385 of the Code, for $100, being the amount of one penalty, with costs. The offer was not accepted. The affidavit of Mr. Butler shows that, on the trial, the respective counsel arranged that, if it was held that plaintiffs were entitled to recover at all, the recovery should be restricted to the violations of the law that defendants should, from their books, state to have occurred, and, accordingly, the defendants furnished a statement showing the number of violations to have been forty-six, which was accepted; and, the court ruling the other questions of the case favorably to plaintiffs, a recovery was had for $4,600. On appeal from the judgment entered on the recovery, the General Term affirmed the same; from which affirmance an appeal was taken to the Court of

Appeals, where the judgment was affirmed as to one penalty, and reversed as to the residue, without costs to either party. After a corrected remittitur had been sent down from the Court of Appeals, the defendants presented their bill of costs, which were taxed on the 14th of September, 1871, at $360.97. The plaintiffs objected to the taxation of the costs, on the appeal to the General Term ; the objection was sustained by the General Term, but, on appeal to the Court of Appeals, it was held that defendants were entitled to those costs, and the taxation of them was affirmed. Afterward, and in June, 1874, a new bill of costs was presented, and the motion for an additional allowance was made. Mr. Butler’s affidavit further states, that “ no application was made at the time of adjusting said costs (in September, 1871), or before or afterward, for an allowance, till now, nearly three years after the adjustment of the costs; that in the meantime a settlement had been made with the defendants, by which the judgment for the single penalty was satisfied of record; which settlement would not have been made by deponent, if he had supposed that any question was left open, except a claim of defendant for the costs of the General Term.”

These statements are not controverted.

It appears that the questions involved in the action were the constitutionality of the pilot laws, and the effect upon them of certain legislation of Congress; and it is manifest that these questions affected every one of the penalties alike.

It is shown also that two several actions had before been commenced against the defendants to recover for separate penalties for violation of the same statute, in which recoveries were had and paid, and that this suit was brought afterward for persistent violations of the same law. It is a mistake to suppose that, by the offer made, the contest over any one of the penalties was removed from the controversy; or, to state the point as it is stated by counsel, that “ $100 was removed from the controversy; ” on the contrary, the omission of plaintiffs to take judgment upon the offer, in the manner prescribed by section 385 of the Code, left the litigation precisely as though no offer had been made, the only effect

* Sturgis v. Spofford, 45 N. Y., 446. of the offer thereafter being upon the question of costs, when the litigation should terminate.

The plaintiff was as much bound to establish his right to recover the sum of $100, or one penalty, as though the action had proceeded without an offer; and the defendant was as much at liberty to contest that right as the right to recover any of the penalties beyond that sum. The plaintiffs were, therefore, successful on the real and very important questions involved; and they were successful also, in showing that the defendants, by the confession of their own books, had actually been guilty of forty-six distinct violations of the statute; and (as now appears by affidavits before us) after two prior warnings by suits and recoveries. It is not difficult, therefore, to see that the advantage as to costs has been gained by the defendants by the tactics of practice, and not by the merits of any defense.

The application of a peculiarly technical rule saves the defendants herein from the penalties for forty-five acknowledged violations of the law, and entitles them to costs of the litigation.

The points made by the appellant are, first, that there has been no “ recovery ” by the defendants, within the meaning of the provisions of the Code relating to allowances. We think this point is not well taken. A result of the litigation which entitles the defendant to costs, is a recovery of judgment for such costs, and may, under proper circumstances, be the basis for the allowance under sections 308, 309.

There must be a recovery to satisfy the exigency of the statutes; but where both parties recover, and the same judgment adjudges damages to one and costs to the other, there is no difficulty, we think, in holding that the recovery of costs by the defendant satisfies the language of the provisions referred to. The second objection is., that “ the defendants costs,” which are given by section 385, on plaintiff’s failure to obtain a more favorable judgment, are restricted to those given by section 303 of the Code; and that the allowance which may be given by the court in its discretion, under section 308, is not costs, but something in addition to costs; or, in other words, that section 385 means and deals only with costs of course. But we think that defendant’s costs in such a case, are not only what.the statute awards of course, and with which the court has nothing to do, but also whatever the court is empowered by statute to award; and that after the court, pursuant to its statutory discretion, awards additional costs to the party, the language of section 385 embraces them as well as costs of course.

The next objection is, that defendants, having taxed their costs in 1871, without applying for an allowance, and a settlement having been made upon the basis thus arrived at, are estopped from now claiming an extra allowance. There are not sufficient facts shown to create an estoppel; but we think that the long delay in making the motion, and the fact that the parties have acted on the assumption that the costs, taxed in 1871, were the extent of defendants’ claim, ought to be held a waiver of the right to move for any more allowance. Besides, it is our opinion that, upon the papers presented, the court below should have made no allowance upon the merits of the application.

This class of orders is appealable to this court, and it is the duty of the court to review them upon the merits.

The order should be reversed, but without costs of the appeal.

Daniels and Lawrence, JJ., concurred.

Order reversed, without costs of appeal.

       Brady v. Durbrow, 2 E. D. Smith, 78.


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    BUTLER H. BIXBY, Respondent, v. SUSAN P. SMITH and others.

      Service of summons by publication—when may be ordered—what afjidcmis, used on motion for order, must contain.

    To obtain [an order for publication against a non-resident defendant, it must be made to appear to the court or judge granting the same, (1), that the defendant cannot, after due diligence, be found within the State ; (2), that a cause of action exists against such defendant, or that he is a proper party to an action relating to real property in this State; (3), that the defendant is not a resident of this State.
    In an action brought to foreclose a mortgage, an order was made, directing the service of the summons by publication on certain of the defendants therein. The affidavit stated that these defendants resided in the State of Alabama. Neither the affidavit nor the order stated that these defendants could not be found within this State, after due diligence; nor was there anything to show that any effort had been made to find them. On an application, made by the purchaser of the premises at a sale under a judgment entered in the action, to be relieved from his bid; held (1), that the order was void, and that, as to the defendants named therein, the judgment was inoperative ; (2), that the purchaser should be relieved from his bid.

      Von Shade v. Von Shade (2 N. Y. S. C. B., 491) distinguished.
    Appeal from an order of Special Term, denying the application of the purchaser at the sale on a judgment of foreclosure, to be relieved from his purchase.

      Adolph L. Sanger, for the appellant.
    The order of publication was void for want of jurisdiction. (Maynard v. Quick, 47 How., 233; Van Wyck v. Hardy, 20 id., 222; Wortman v. Wortmam, 17 Abb., 66; Towsley v. McDonald, 32 Barb., 604; Cook v. Farmer, 12 Abb., 359; Peck v. Cook, 41 Barb., 549; Waffle v. Goble, 53 id., 517.)

      Albert Cardoso and Grats Nathan, for the respondent.
   Davis, P. J.:

The appellant, Bernard Bellman, bid off the premises sold on the judgment of foreclosure in the above entitled action, and entered into the usual agreement of purchase. He applied to the court at Special Term to be relieved from his purchase, on the ground that several defects in the proceedings in the action, particularly specified by him, render the title of said premises invalid. The principal of these defects relates to the order of publication as to certain non-resident defendants, and to the affidavit on which such order was made. The affidavit states that six of the defendants (naming them) reside at Selina, in the State of Alabama, and that one of the defendants (naming her) resides at Greenville, in the State of Alabama. There is no statement in the affidavit that these defendants could not be found within the State after due diligence, nor is there anything to show that any effort had been made to find them. The affidavit rests upon the naked assertion of non-residence. The order, in form, follows the affidavit. It recites that it appeared to the satisfaction of the court that the defendants named, are nonresidents of the State, and' reside at the places named in the affidavit. The order fails to recite that it also appeared to the satisfaction of the court that the defendants could not, after due diligence, be found in this State. There is nothing to indicate in the order that the judge or court passed upon that question; and nothing was laid before the judge, calling for his determination of that question. The order it appears was made by myself at chambers, in the haste and pressure of business at that court, relying on the experience of the attorney, in this class of actions, in the preparation of such papers and orders. I am unable to see any ground upon which the order can be treated as valid. A part of the defendants named as non-residents, did not appear in the action, and as to them the judgment is inoperative.

In the case of Hind v. Bowles, decided at Special Term in February, 1813,1 had occasion to examine the provisions of the Code, under which the question in this case arises, and I then said: “ To obtain an order for publication against a non-resident defendant, three facts must be made to appear to the court or judge granting the same:

First. That the defendant cannot, after due diligence, be found within the State.

“ Second. That a cause of action exists against such defendant, or that he is a proper party to an action relating to real property in this State.

“ Third. That the defendant is not a resident of the State.

“Proof of non-residence satisfies the third of these requirements, but it does not show, nor of itself tend to show, that the defendant cannot, with reasonable diligence, be found within the State. The affidavit of non-residence may be entirely true, and yet the defendant be in the presence of the affiant at the time he makes the affidavit. Large numbers of the business population of this city are residents of adjacent States, but are daily, during business hours, at their places of business in this city, and easily accessible for all purposes. To hold that a simple affidavit of non-residence tends to show that such persons cannot, with due diligence, be found within this State, is to establish a rule at war with every man’s practical experience, and which would pervert the provisions of the Code on this subject into instruments of injustice.

“ The Code has created no rule that authorizes service of a summons by publication because the defendant is a non-resident; but because, being such non-resident, ‘ he cannot, after due diligence, be found within the State.’ And it is as esential to prove to the satisfaction of the court or judge this latter fact as an existing condition of things, as it is to prove non-residence itself. Where the affidavit simply asserts that the defendant cannot, after due diligence, be found within the State, coupled with proof of non-residence, the most that can be said for it, is, that the affiant expresses his conclusion of the former fact from his proof of the latter. It is in substance saying, £ the defendant cannot, after due diligence, be found within the State, because he resides out of it:’ a conclusion which is a non sequitur from the fact stated. In short, it presents only an excuse for not trying to find him. But the Code requires that the fact, that defendant cannot be found; after due diligence, within the State, shall £ appear by affidavit to the satisfaction of the court or judge.’ Due diligence means some effort or attempt to find the party, which the court or judge shall be satisfied is reasonable under the circumstances: and the phrase, 1 after due diligence,’ can have no other just signification than would be given if it read, after due diligence has been used. What the diligence used has been, should be shown, and the court or judge is to determine whether, under the circumstances, it is or is not 1 due,’ within the intent of the statute. Of course, the judge or court will determine the question whether the diligence shown is dM6 or not, in view of the other fact that the defendant resides out of the State; for less effort to ascertain that a non-resident cannot be found within the State, would be satisfactory proof of due diligence, than would be required to show that a resident cannot be so found.”

The case referred to arose upon a motion to set aside an order of publication; but the reasoning applies with greater force to a case like the present, where nothing is presented by the affidavit but naked non-residence to call for the conclusion of the judge that the party cannot, after due diligence, be found within the State.

In this case the attack upon the order of publication is collateral, and made after judgment. The courts will, under such circumstances, make every presumption and intendment favorable to the upholding of the judgment, that the facts of the case will permit. And slight facts and circumstances by which it may be said the mind of the judge was set in motion to determine the fact of which' he is required to be satisfied, have been held sufficient on a collateral inquiry after judgment. But no case has yet been upheld, in which the affidavit and order were so utterly bald as in the present. In Von Rhade v. Von Rhade, this court went to the outer verge of judicial intendment to sustain the judgment. The affidavit in that case stated that the defendant “ cannot after due search, be found within this State, and is in fact a resident of Berlin, in the empire of Germany, where he now actually resides; ” and the order recited that it satisfactorily appeared to the judge, that the defendant could not, after due diligence, be found within this State. The court, in the opinion of Daniels, J., fully recognized the requirements of the Code, as above laid down, but held that the language of the affidavit was sufficient to support the conclusion of the judge after judgment in the action. The defendant was let in to defend on the merits,

The conclusion is, that the objection of the appellant to the title was well taken. The order appealed from should be reversed with ten dollars costs, besides disbursements, and the motion granted with costs.

Daniels and Lawrence, JJ., concurred.

Ordered accordingly.

       2 N. Y. Sup. Ct. Rep., 491.

       And see Waffle v. Goble, 53 Barb., 517; Peck v. Cook, 41 id., 549; Easterbrook v. Easterbrook, 64 id., 431; Miller v. Brinkerkoff, 4 Denio 118; Welles v. Thornton, 45 Barb., 390; Wortman v. Wortman, 17 Abb., 67.


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    In the Matter of the Petition of RICHARD WILLIAMSON, Jr., Respondent, to Vacate an Assessment for a Sewer in Seventy-second street, etc., v. THE MAYOR, Etc., of NEW YORK CITY, Appellants.

      Assessment—application to vacate—error in copies of paper's served—Chapter 321, Lams of 1865—construction of— Chapter 580, Laxos of 1872.
    Where, on an application to vacate an assessment, the copy of the petition served upon the corporation counsel difEers in some respects from the petition presented to the court, but it does not appear that the corporation counsel has been prejudiced thereby, such defect cannot be urged on an appeal from an order vacating the assessment.
    Chapter 821, Laws of 1865, providing that all sewers thereafter constructed, shall be in accordance with the general plan devised by the Groton aqueduct board for the sewerage of the particular district in which such sewer is to be laid, “ subject to such modifications as may become necessary in consequence o ! alterations made in the grade of any street or avenue or part thereof in said district, or otherwise,” does not require that such modifications should be made to appear on the general plan or map, or that new plans or maps showing them should be filed.
    Where an application is made to vacate an assessment for laying a sewer, constructed in accordance with plans and specifications prepared and signed by the Groton aqueduct board, on the ground that it is not in conformity with the general plan for the district in which it is built, and there is no evidence to show whether or not the general plan has been modified by the board; held, that the application should be denied.
    As the board, by the contract and the plans connected therewith, approved of the change in the plan of the sewerage for that district, their failure to decide upon such change, at a meeting called for that purpose, and to prepare and file a map thereof, was an “ omission ” within the seventh section of chapter 580, Laws of 1872, and the assessment was not thereby invalidated.
    Appeal from an order made at the Special Term, reducing an assessment for a sewer.
    In the paper which was served upon the corporation counsel, and which purported to be a copy of the petition to be presented to the court, the fourth ground of objection was as follows :

      “ 4th. That no general plan or map has ever been made by the Croton aqueduct board for the sewerage of the particular district in which said sewer is constructed, to determine and show the location, course, size and grade of each sewer and drain below the surface and below the established grade of the streets and avenues in said district.”
    While in the petition actually presented, it was stated as follows:
    “ 4th. That said sewers were not constructed in accordance with the general plan devised by the said Croton aqueduct board for the sewerage of the particular district in which such sewers are constructed.”

      Wm. Barnes, for the appellants.

      Neville & Andrews, for the respondent.
   Davis, P. J.:

The evidence in this case failed wholly to show that the petitioner was the owner of the lands affected by the assessment, at the time of filing his petition. Within the ruling of this court, In the Matter of the Petition of Phillips, he failed to show any title to have the assessment vacated or reduced. The act of 1858 gives the remedy therein provided to “ the party aggrieved; ” and the second section of that act shows that this phrase was used by the legislature as synonymous with the words, “the owners of property.”

The court below treated the petition, containing the objection upon which its decision was based, as regularly before it. It did not appear that any prejudice had arisen from the fact that the copy served on the corporation counsel did not contain that objection. If it had appeared that further notice was necessary, the court would doubtless have ordered a corrected copy to have been served, and postponed the hearing for that purpose. We think the irregularity in the copy served cannot be urged on this appeal.

The Special Term made its order upon the ground that the sewers, for which the assessment was made, were not constructed in conformity to the “ general plan ” devised and adopted by the Croton aqueduct board for the sewerage of the particular district. The plan provided for but one sewer in Seventy-second street, located in the center of the street. Two sewers, one on each side of the street, of smaller dimensions, were constructed under contracts made by the board therefor, in conformity to plans connected with the contract and made part thereof. The second section of the act of 1865, entitled, “An act in relation to sewerage and drainage in the city of New York,” required the Croton aqueduct board to lay out the city into as many sewerage districts as they should deem necessary for the general purposes of the act, and to make maps or plans, containing various particulars, “ for the purpose of exhibiting a complete plan of the proposed sewerage therein.” The fourth section provided, that, “ upon the completion of the map or plan for the drainage of any sewerage district, such map or plan shall be the permanent plan for the sewerage of such district, subject, however, to such modifications as may become necessary in consequence of alterations made in the grade of any street or avenue or part thereof in said district, or otherwise.” The section then provides for the filing of copies of such complete plans “ in the offices of the common council, the comptroller, street commissioner and city inspector.” The eighth section of the act declares that, “it shall not be lawful, hereafter, to construct any sewer or drain in the city of New York, unless such sewer or drain shall be in accordance with the general plan devised by said Croton aqueduct board for the sewerage of the particular district in which such sewer or drain is proposed to be constructed.”

To ascertain the true construction of the act of 1865, its several provisions are to be read together. The prohibition of the eighth section must be considered in connection with the provisions of the fourth section, which declares the general plans to be “ subject to such modifications as may become necessary i/n consequence of alterations made in the grade of any street or a/uenue or part thereof in said dñst/rict, or otherwise.” The eighth section is to be read as though it inhibited constructions otherwise than in accordance with the general plan of the district, as affected by the modifications allowed by the fourth section. If this be not so, then the slightest variation in the location, course, size, grade, or depth below present surface or established grades of streets, all of which under the second section of the act are to be shown upon the district maps, would be fatal to the regularity of the proceedings, and avoid all assessments.

When we consider the nature of the subject-matter of the law — the sewerage and drainage of a great city, by works to be constructed under ground, upon the efficiency of which must largely depend the health and well being of a great population—it can hardly be thought that the legislature meant to provide for plans and maps which should be so absolute and arbitrary in their character, that no sewer or drain could be lawfully constructed that did not, in all details and particulars, rigidly adhere to the exact indications of the plans and maps. Hence, the fourth section of the act provides for and authorizes such modifications in the sewerage (and not in the general plans) as the exigencies suggested therein may require. While the general plan ” is to be maintained, the special necessities that demand modifications in the work may be respected. There is no provision in the act that the modifications permitted by the fourth section shall be made to appear on the general plans or maps, or that new plans and maps showing them shall be filed; nor does there appear to be anything to prevent the proper department to provide for the modifications in and by the contracts that may be made, and indicate them in 'the plans and maps that may accompany such contracts. Where this appears to have been done in good faith and without fraud on the part of the contracting board, it should be presumed to have been rightly done, until the contrary is shown. In this case no evidence was given, except of the bare facts, that in a portion of Seventy-second street, in which the general plan showed one sewer in the center of the street, the contract was for the construction of two smaller ones on the sides of the street. Whether there was or was not such occasion for this “ modification ” in that particular part of Seventy-second street, was left altogether to conjecture. The court below presumed, in the absence of evidence, that the alteration was not made by the board, by a proper decision, at a regular meeting. This was shifting the burden of proof upon the city in a case where it belonged to the petitioner, and depriving the corporation of the benefit of presumptions which the law makes in its favor where the acts of public officers are sought to be annulled to its injury. The proceeding, it is not to be forgotten, is not against the officers or hoard by whom the act was done, and who may be called upon in such case to show their authority, but against a third person — the corporation, which is sought to be affected by the alleged illegality of official acts. We think the court below erred in holding the evidence, or rather the absence of evidence, sufficient to show the invalidity of the assessment.

The act of 1872 is broad enough, we think, to cover and cure the irregularity complained of. The Croton aqueduct board, certainly, by their contract and the plans connected therewith made, approved the changes in the sewerage of Seventy-second street. At most, it can only be said or presumed, in the absence of evidence, that they omitted to do this in the more formal manner of a regular meeting to decide that the changes should be made, and to prepare and file a plan or map thereof. That this was an omission,” within the seventh section of the act of 1872, seems to have been decided by the Court of Appeals in The Matter of the Petition of Ferdinand Mayer. In that case the sewers were constructed in streets, not included in a sewerage district plan adopted or filed previous to making the contract for the work. The court held that omission to be an irregularity, cured by the act of 1872. In this case it can only be urged that there was a departure from the plan, in the execution of the work, in particulars which would have been regular modifications but for the omission of certain requisite formalities. In Astor v. The City, Judge Robinson gave the same effect to the act of 1872 which the Court of Appeals have given; and such were our views in several cases decided at the present term. The order below should be reversed, with costs of the appeal, besides disbursements, and the motion denied, with ten dollars costs of opposing same in the court below.

Daniels and Barbett, JJ., concurred.

Ordered accordingly.

      2 Hun, 212.

       Laws of 1858, chap, 388, and Laws of 1874, chap. 313; Townsend v. Goelet, 11 Abb. Pr., 187.

       Chap. 381, of the Laws of 1865.

       Chap. 580, Laws of 1872.

       50 N. Y., 504.

         In the Matter of Phillips; In the Matter of Keteltas; and see Opinion of Robinson, J., in Astor v. The City, in pamphlet.