text:
    THE PEOPLE OF THE STATE OF NEW YORK, Appellant, v. JOSEPH R. CRANDON, Respondent.

      Proceedings to convict a husband as a disorderly person, are cñminal in their character — the wife may be the complainant — she cannot testify as a witness.

    Proceedings instituted under chapter 127 of 1861, .to secure the conviction-of ahusband as a disorderly person, for neglecting to support his family, are criminal in their nature.
    The complaint required by that act, to authorize the justice to issue his warrant for the examination of the accused, may be made by the wife.
    The wife is not, however, a competent witness against her husband in such proceedings ; section 828 of the Code of Civil Procedure is only axiplicable to civil actions.
    Appeal from an order made, at Special Term, reversing the conviction of the defendant as a disorderly person by a justice of the peace.
    Proceedings were commenced before a justice of the peace for the town of Salina, Onondaga county, to convict the defendant of being a disorderly person. The conviction was had upon the evidence, principally, of the defendant’s wife. The defendant obtained a certiorari to review the jiroceedings which were brought before the Onondaga Special Term, where the proceedings were reversed.

      A. L. Johnson, for the appellant.

      Hunt, Leavenworth <& Weaver, for the respondent.
   Hardin, J.:

The proceeding instituted in the name of the People against the defendant, to have him declared a disorderly person, was in the nature of a “ criminal” proceeding, as contradistinguished from a civil action or a “ civil special proceeding.”

Section 4 of the Old Code divides all actions into “civil” and “ criminal ” actions. Section five declares that “ a criminal action is prosecuted by the People of the State, as a party, against a person charged with a public offence for the punishment thereof.

Prior to 1861 the statute did not declare persons who shall abandon or neglect to support their wives and children disorderly persons. (Chapter 127 of Laws of 1861.)

That statute amended the Revised Statutes in respect to such persons, and brought them into the category with idlers, montebanks, prostitutes, jugglers, common showmen, etc. (1 R. S. [Edm. ed.], § 1, p. 591.)

The second section of the act as to disorderly persons, cited supra, provides that “ upon complaint made on oath” a justice of the peace “ shall issue his warrant for the apprehension of the offender and cause him or her to be brought before such justice for examination.”

“ If it shall appear by the confession of the offender, or by competent testimony, that he or she is a disorderly person, the justice may require of the offender sufficient sureties for his or her good behavior lor the space of one year.”

If there is default, then the justice is “to make up, sign and file in the county clerk’s office a record of the conviction of such offender as a disorderly person.” * * *

This language is apt and appropriate for the definition of the crime, for the examination of the offender or criminal, for his conviction and for prescribing the penalties for his offence. The tenth section provides that the Court of Sessions may order the disorderly person to be “kept in the common jail for any term, not exceeding six months, at hard labor, or may direct that, during any part of the time of imprisonment, not exceeding thirty days, such offender shall be kept on bread and water only.”

It is obvious that the offence of being a disorderly person is one against the public, and as such is dealt with and punished. It is, therefore, quite clear that proceedings under the statute against disorderly persons are not civil “ actions nor civil proceedings,” but are “ criminal proceedings or criminal- prosecutions.” (People ex rel. Kehlbeck v. Walsh, 11 Hun, 293; Bayne v. People, 14 id., 181; People ex rel. Post v. Supervisors of Ontario, 4 Denio, 260; People v. McCarthy, 45 How., 98; Duffy v. People, 6 Hill, 79; People v. Reagle, 60 Barb., 527.)

The wife made the affidavit on which the proceedings were instituted and the warrant issued. On the return it was objected to as insufficient.

The statute says “upon complaint made on oath to any justice,” * * * he shall issue his warrant. The statute is general and contemplates a complaint on oath by any person competent to make an oath in legal proceedings or to make an affidavit, and does not require the person to be qualified to be a witness. It seems, therefore, that her oath may be held sufficient to institute the proceedings.

But a more serious and important question arose upon the hearing, as to her competency as a witness against her husband. She was offered as a witness, and he objected that she was not competent to give evidence, and the objection was overruled. Was the ruling erroneous ? The statute says, “ if it shall appear, by the confession of the offender or by competent testimony, that he or she is a disorderly person, the justice may require of the offender sufficient sureties,” etc. * * *

(1.) There was no confession by the accused, and the case could not, therefore, be upheld under the first part of the statute quoted.

(2.) She being the wife of the offender and these being, as we have seen, criminal proceedings, her testimony was not competent.

At common law the wife could not be a witness against the husband on account of the marital relations, they rendering it against public policy, except where a crime was committed in the absence of witnesses, and this exception was only allowed from the necessity of the case. (Bihin v. Bihin, 17 Abb. Pr., 19; Moffat v. Mount, 17 Abb. Pr., 4; People v. Carpenter, 9 Barb., 580; People v. Colbern, 1 Wheeler, 479.)

This disability has not been removed. ■ The Laws of 1867, chapter 887 provided innovations upon the common law rule as to civil actions and proceedings. But it was carefully declared in section two of .that act, that nothing therein “shall render any husband or wife competent or compellable to give evidence for or against the other in any criminal action or proceeding.” * * # We must, therefore, hold that the act of 18G7 did not render the wife competent to give evidence in these proceedings.

Chapter 678 of Laws of 1869 provides that criminals may be witnesses in their own behalf, but it does not in any other respect change the common law rule.

Although section 828 of the Now Code has provided that a husband or wife may be witnesses against each other in certain cases, it does not aid the appellants here. That section does not apply to criminal uroceedings. (Laws of 1876, chapter 449, section 4.)

Wo are referred to Southwick v. Southwick (49 N. Y., 519) by the appellant’s counsel. That case, however, does not support his position. It is held there that in a civil action between husband and wife, in respect to money transactions, either can be a witness. That result is placed upon the language of the first section of the act of 1867, supra, and nothing in the case applies to a criminal case or criminal proceeding.

The case of Minier v. Minier (4 Lans., 421) is to the same effect as Southwick v. Southwick (supra). In Wilke v. People (53 N. Y., 525) it was held that the wife of the prisoner could not be a. witness, for him. The same rule was stated and followed by Cordozo, J., in Foster's case, as appears by a note in 13 Abbott (N. S.) 375. The conviction was afterwards affirmed by the Court of Appeals. The case of Matteson v. New York Central Railroad Company (62 Barb., 364) only held that in a civil action husband and wife were competent witnesses in their own suit.

The justice improperly overruled the objection taken to the offer of the wife as a witness in behalf of the People against the husband, and her evidence was not “ competent testimony.”

Without her evidence there was no ease made out against the accused. The Special Term, therefore, properly reversed the ' conviction and we must affirm its order, without costs.

Talcott, P. J., and Smith, J., concurred.

Order of the Special Term affirmed, without costs.


source: Caselaw Access Project

author: Hardin, J.:

license: Public Domain

text:
    THE ONONDAGA COUNTY MILK ASSOCIATION, Respondent, v. JAMES WALL, Appellant.

      What agreement cannot be enforced by one not a party thereto — By-law — effect of.

    The defendant sold three shares of the capital stock of the plaintiff, owned by him, to one Porter, agreeing in and by the instrument of assignment not to engage in the sale or delivery of milk in the city of Syracuse, or in the village of Geddes, “ to the prejudice or detriment of the said stock, or the interests of the holder thereof, or the interest and business of the said Onondaga County Milk Association ” (the plaintiff). The instrument further provided, as follows: “ And for a violation of this agreement, to the detriment of said Porter, or the said Milk Association, the said Porter or the said association shall be at liberty to take such proceeding for restraining me from such violation as shall be deemed proper.” The defendant having sold milk in violation of this agreement the plaintiff brought this action to restrain him from making such sales. Held, that the plaintiff was not a party to the agreement, and that an action would not lie by it to restrain a violation of the covenant therein contained.
    A by-law of the plaintiff provided, that if a stockholder transferred his stock he should sign an agreement not to sell or deliver milk in Syracuse within five years.

      Held, that this did not authorize an application for an injunction by the plaintiff.
    Appeal from an order made at the Lewis Special Term, denying a motion to set aside an order granting a preliminary^ injunction in this action.
    The injunction restrained the defendant from “the sale and delivery of milk within the territorial limits of Syracuse and within the village of Geddes, directly or indirectly, or in any manner whatever.”
    The plaintiff is a corporation doing business at Syracuse, having a capital of $100,000 represented by stock consisting of shares of $100 each. The defendant, February 21, 1877, owned three shares of the plaintiff’s capital stock, and transferred it to W. W. Porter, by an instrument in writing in the following words, viz. :
    “ For, and in consideration of, the sum of $300 in hand paid, I hereby sell, assign and transfer to W. W. Porter, three shares of stock, without the assessment, in the Onondaga County Milk Association, now standing in my name ; and, in consideration of the above named sum having been paid to me, I hereby agree and bind myself for the period of five years, from the date hereof, not to engage in the sale or delivery of milk in the city of Syracuse or vicinity, or in the village of Geddes, either directly or indirectly, by myself or agents, in any manner whatever, to the prejudice or detriment of the said stock, or the interests of the holder thereof, or the interest and business of the said Onondaga County Milk Association. And for á violation of this agreement, to the detriment of said Porter, or the said Milk Association, the said Porter or the said Association shall bo at liberty to take such proceedings for restraining me from such violation as shall be deemed proper, and to recover such costs and damages as may be awarded by the court.”
    “ In witness whereof I have hereunto set my hand this 21st day of February, 1877. .
    “JAMES WALL.”
    There was a by-law of the plaintiff which provided, that if a stockholder transfered his stock he should sign an agreement not to sell or deliver milk in Syracuse within five years thereafter.
    The complaint and affidavits showed that defendant engaged in selling milk after the 21st of February, 1877, in violation of his agreement.

      OorneMus E. Stephens, for the appellant.

      Kennedy & Tracy, for the respondent.
   Hardin, J.:

The agreement accompanying the defendant’s transfer of three shares of the capital stock of the plaintiff to Porter is made the foundation of this action. By the agreement it is evident that the defendant owned the three shares of stock in plaintiff’s association and sold them for $300 to Porter, and at the same time undertook, for the period of five years, “ not to engage in the sale or delivery of milk in the city of Syracuse,” etc., * * * “in any manner whatever, to the prejudice or detriment of the said stock, or the interest of the holder thereof, or the interest and business of the said Onondaga County Milk Association.”

The sale of stock was to Porter. Ho advanced the purchase-price ; he took the covenant in restraint of business and became the beneficial party interested in the enforcement of the agreement. But he was under, so far as the case discloses, no obligation to require the defendant to abstain from the sale of milk.

The plaintiff did not furnish the consideration moving to the contract between the defendant and Porter. It does not appear that its consent, if given to a transfer of its stock upon its books, would be any loss or detriment to it. The agreement made by the defendant with Porter is not such an one as the plaintiff alone can enforce. Porter is not a party to this action; lior does he appear in any way to have transferred his rights under the agreement to the plaintiff. (Guthrie v. Kerr, Alb. Law Jour., vol. 18, p. 18; Vrooman v. Turner 69 N. Y. 280.)

And we do not think the by-law should be construed as having the effect to authorize an injunction. The contract was with, and presumably for the benefit of Porter. This action is to enforce it, by restraining the defendant from selling and delivering milk in violation of his agreement with Porter. It is settled that chancery will not interfere to enforce a mere voluntary agreement. There must be a good consideration to support an agreement, and the plaintiff must have the legal interest in it in order to enforce it. (Minturn v. Seymour, 4 Johns. Ch., 497; McCotter v. Lawrence, 4 Hun, 107.) The complaint and affidavits did not make a case entitling the plaintiff to an injunction against the defendant, and the motion to set the ^iirjunction aside ought to have been granted.

•The order, denying the motion should be reversed, with ten dollars costs and disbursements, and the motion granted vacating the injunction, with ten dollars costs.

Talcott, P. J., and Smith; J., concurred.

Order reversed, with ten dollars costs and disbursements, and motion granted vacating the injunction, with ten dollars costs.


author: Hardin, J. :

text:
    JAMES M. NORTHRUP, Respondent, v. SARAH M. GARRETT and MYRON H. CHAMBERLAIN, Appellants.

      Bond given on the issuing of an attachment — objections as to the form thereof, must be taken at the trial — what damages are recoverable under.

    Where, in an action upon a bond, given upon the issuing of an attachment by a justice of the peace, no objection is made upon the trial to its sufficiency, or to the manner of its execution, such objections cannot be raised on appeal.
    Expenses and counsel fees, incurred by a party in preparing for and trying an attachment suit, are recoverable under the bond given upon the issuing of the attachment.
    Appeal by the defendants from a judgment of tne County Court of Onondaga county, reversing a judgment of a justice of the peace.
    The action was brought upon a bond given by the defendants to the plaintiff, upon the defendant Garrett obtaining an attachment from a justice of the peace in an action brought by the defendant Garrett against the plaintiff, in which action Garrett’s .recorded affidavit was used to obtain the attachment, but no other written application was made. The justice rendered a judgment in this action of “no cause of action.”

      Butterfield <& FMUvps, for the appellant.

      A. L. Johnson, for the respondent.
   Hardin, J. :

The defendants insist here that there was not sufficient proof given of a bond, to justify a recovery. The justice, before whom the attachment proceedings were had, was called as a witness in this action. He testified : “I have the affidavits on which attachment ,was issued. (Paper produced.) Objected to, for the reason ' (1) the docket does not show a written application; (2) that the docket shows the judgment has been paid ; (3) that it is insufficient and no foundation laid ; (4) the justice had no jurisdiction.” These objections were properly overruled and the affidavits received in evidence. , The original bond was then shown and offered in evidence. The same objections were made to it and properly overruled, and the bond was received in evidence. A copy of the bond is returned, and it appears to be in the usual form, and is conditioned “ to pay all damages and costs which he may sustain by reason of issuing of such attachment.” It is signed by the defendants and contains a clause, viz.: “ Given under our hands and seals this-day of July, 1877.” There were several objections to the form of the bond, taken to the plaintiff’s right to recover, but no particular objection to its execution, nor to any omission therefrom.

We must therefore assume that the bond was in every respect in accordance with the requirements of the statute in such cases, and the defendants cannot for the first time on appeal raise a question as to whether the bond was under seal. If the objection had been timely taken as to the bond used to obtain the attachment, the principal and surety could not have been successful, as they ought not to be permitted to get rid of it by alleging that it was not so strong or so perfect,” as the justice, to whom it was presented, might have required them to make it. (Shaw v. Tobias, 3 Comst., 192.) This principle was again asserted in Kelly v. McCormick (28 N. Y., 322). The instrument upon its face shows a sufficient consideration to bind these defendants as a simple contract. [Kelly v. McCormick, supra.) The case of Tiffany v. Lord (65 N. Y., 312) may be distinguished from either of those cited supra, and from the one before us. There the objection was to the jurisdiction of the justice, upon the ground that the party who undertook to give a bond had failed, and the objection was taken by the defendant in the proceedings ; whereas here it is taken by the parties who executed and delivered it as a bond and had the benefit of proceedings based upon it.

In Johnson v. Martin (1 N. Y. S. C., 504 “ [T. & C.]),” the order appointing a receiver required him to give a bond with two sureties, and it was held that an instrument with one surety, and not under seal, was not a compliance with the order, and that the defendant, against whom the receiver brought suit, could take the objection that the receiver was not authorized to act. Here the defendants did not take the objection timely, nor was it good in their mouth.

The case of Kelly v. Archer (48 Barb., 68) is cited by the appellants, and they claim that it establishes that the jurisdiction of the justice in the attachment suit may be attacked. The proceedings were there set up by way of justification to the taking the property; and the objection to their validity was taken by the party against whom the proceedings were had. That case is, therefore, distinguishable from this one.

In Homan et al. v. Brinckerhoff (1 Denio, 184) the objection to the jurisdiction of the justice was raised on appeal by the defendant, and that case is not applicable to this one. Nor is the case of Rockefeller v. Hoysradt (2 Hill, 616) applicable. That was an action upon an instrument claimed to be a bond, and it was held to be only a covenant and misdescribed in the declaration, and the variance was said to be fatal.

In Browne v. Mellor (6 Hill, 496), it was held that an action on the bond might be maintained; it was held that although the justice failed to acquire jurisdiction in the attachment suit, that the defendant in that suit might maintain an action upon the bond. The case is an authority to support this action. No question was made upon the trial as to the execution of the bond, when it was offered and received in evidence, and none can, therefore, be made here. The execution was assumed on the trial. (Paige v. Fazackerly, 36 Barb., 392: Barnes v. Perine, 2 Kern., 18; Mabbett v. White, 2 id., 442.)

The plaintiff gave evidence tending to show his expenses and expenditures necessarily made in preparation for trial, and for the trial of the attachment suit, with a view of establishing a breach, and the damages sustained by “ reason of the issuing of the attachment.” He had employed a person to try the cause, who tried it, and who testified his services were worth ten dollars. There was, therefore, some evidence upon which the justice’s court might have found a breach of the bond, with damages.

In section 1515 of the fourth edition of Cowen’s Treatise, it is said : “ In an action upon a bond given to authorize the issuing of an attachment, the measure of damages is not the mere taxable costs in the attachment suit; the obligee may recover his damages at large for the seizure, detention and deterioration of his goods, his time and trouble in defending the suit, expense of employing counsel,” etc.

In Bennett v. Brown (20 N. Y., 102); S. C. (31 Barb., 158, affirmed), it was held that such a bond covers the costs of a certiorari as “ they were clearly caused by the issuing of the attachment.” In obtaining an injunction, the undertaking requires the party “ to pay such damages as he may sustain by reason of the injunction.” Its language is very like that used in this attachment bond. It has been repeatedly held that- such language requires the party to pay necessary counsel fees incurred, to get rid of the injunction. (Coates v. Coates, 1 Duer, 664; Edwards v. Bodine, 11 Paige, 224; Corcoran v. Judson, 24 N. Y. 109; Strong v. De Forest, 15 Abb., 427.)

We must, therefore; hold : (1.) That the justice improperly rendered a judgment of “no cause of action.” (2.) That the County Court properly reversed such judgment, and the judgment of the Comity Court should be affirmed.

Taloott, P. J., concurred ; Smith, J., not voting.

Judgment affirmed.


text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. ABRAHAM ROBISON, THADDEUS O. HOTCHKISS and ROBERT MOODY, Supervisors, Respectively, of the Towns of Geneva, Phelps and Seneca, in Ontario County, New York, Respondents, v. THE BOARD OF SUPERVISORS OF THE COUNTY OF ONTARIO, NEW YORK, Appellant.

      Chapter 327 of 1873 — limitation of appeals imposed by, still in force — not repealed by section 3 of chapter 49 of 1876.
    Chapter 327 of 1873 providing, among other things, that any appeal to the State assessors, “ the determination of which is not made and filed with the clerk ol the said board of supervisors, on or before the commencement of the next succeeding annual session thereof, shall be null and void, and the same shall be deemed as dismissed,” was not repealed by section 3 of chapter 49 of the Laws of 1876, but is still in full force and effect.
    Appeal from a judgment, entered under the direction of the court at Special Term, awarding a peremptory mandamus to compel the execution of three several determinations of the State assessors, in favor of the towns of Seneca, Geneva and Phelps.
    The three towns severally appealed in 1876 to the State assessors from the equalization of assessments and the correction of assessment-rolls for the year 1876, made by the board of supervisors of Ontario county.
    The State assessors took proofs in August, 1877, and the appeals were submitted to them in September, 1877.
    The State assessors made their determination October 1, 1877, but did not deliver them or file them until the 8th or 9th of October, 1877. The annual session of the board of supervisors commenced October 2d, 1877, as fixed and required by law. The appeals were decided October 1st, 1877, and received by mail by the clerk of the board of supervisors October 9th, 1877.

      H. L. Comstock, for the appellant.

      Frank Bice and F. O. Mason, for the respondents.
   Hardin, J.:

Chapter 327 of the Laws of 1873, added a 14th section to the Laws of 1859 (chap. 312), and the effect of the addition was to regulate the dismissal of appeals. Before the act of 1873 there was no limitation upon the pendency of appeals.

The comptroller by section 13 of the Laws of 1859 was authorized to hear appeals, and the section then prescribed his duty. It provided that “ after hearing such proofs he shall determine whether any, and if any, what deduction ought to have been made from the corrected valuations of such town, city or ward; and in the assessment and collection of taxes of the next following years such town or city shall be credited with the amount of taxes levied from it on such excess of valuation, and the same shall be levied and collected from the other towns and cities of the county.”

Carefully reading it we see that there was no limitation of the action of the board of supervisors to the next succeeding year after the appeal, but it may take place in the next following years.

It did not in terms authorize the comptroller to apportion the taxes caused to be paid by the agrieved town, upon the respective towns. It left that duty of apportionment in terms to the action of the board of supervisors. In these two particulars the subsequent legislation made changes. The effect of the added section 14, by virtue of the Laws of 1873, was to compel the determination and filing of it with the clerk of the board of supervisors “ on or before the commencement of the next succeeding annual session thereof,” i. e., next-after the appeal, and to provide that unless the determination and filing are so made, the appeal “ shall he null and void, and the same shall he deemed as dismissed.” The act of 1874, chapter 351 provided for a change from the comptroller to the State assessors ; that all pending appeals should be vested in the State assessors, and subsequent appeals should bo to them ; and imposed on the assessors all the duties, and vested in them the powers that, theretofore, were vested in. or imposed on the comptroller. (Section 5.) This act also prescribed a rule in respect to costs and expenses of such appeals, authorizing the appellants costs and expenses, if unsuccessful, “to be levied upon and collected from the towns and cities of the county, other than those which by the determination of the appeal are credited by means of an excess of valuation.” Section 1 of the act of 1874 adds a 15th section to the act of 1859.

Now the second section of the act of 1874 provides that such costs and expenses shall, after they are certified by the State assessors to the board of supervisors, be audited and levied by the board of supervisors at the next annual meeting thereof, after such costs and expenses shall be so certified.” Thus favoring a construction that the costs and expenses are all to be paid, and the appeals with their results adjusted ak the meeting of the board of supervisors, which follows next after the taking of an appeal by an aggrieved town or ward, or city. But, however this may be, we turn to chapter 49 of the Laws of 1876, and find further provisions in respect to the appeals, the mode of hearing them, and the rules and regulations to be adopted in respect to them by the assessors. The third section of the act of 1876 prescribes certain duties, and the manner in which they shall be executed by the assessors. It is as follows : “ On every such hearing or trial the evidence shall in part relate to the assessment and full and true value of real and personal property, and thesaid State assessors shall determine whether or not injustice has been done to the town, ward or city, so appealing, in the equalization of real and personal property assessed therein, as compared with the other wards, towns or cities of said county, and shall determine whether any, and if any, what deductions ought to be made from the aggregate corrected valuation of said real and personal property, as made by the board of supervisors, and shall also determine to what town or towns, ward or wards, city or cities, in such county said deductions, if any, shall be added, and shall certify their determination in writing to said board of supervisors, and forward the same by mail within ten days thereafter to the clerk of said board of supervisors, directed to him at his post-office address.”

This section introduces a provision for the purpose of requiring the State assessors to determine “to what town or towns, ward or wards, city or cities,” such deductions shall he added. Prior to the adoption of this section the provision of section 13, of the act of 1859, was that any such deduction “ shall be levied and collected from the other towns and cities of the county.” This section also declares the duty of the State assessors, viz. : (1.) To determine whether or not injustice has been done to the town # * * appealing, in the equalization.”

(2.) “ To determine whether any, and if any, what deductions ought to be made from the aggregate corrected valuation * * * as made by the board of supervisors.”

(3.) “ And shall also determine to what towns * * * said deductions, if any, shall be added.”

(4.) “And shall certify their determination in writing to said board of supervisors.” #

(5.) “ And forward the same by mail', within ten days thereafter, to the clerk of said board of supervisors, directed to him at his post-office address.”

These five subdivisions each contain a requirement from the State assessors. They each impose a duty. They are each made for the purpose of imposing a duty, and directing, not only what the duty is, but also how it shall be executed.

There is not one word in this section in respect to dismissal of appeals ; nor at what time, or under what circumstances, appeals shall be “null and void,” and when they shall be deemed dismissed ; nor one word m respect to laches in obtaining the determination, and filing of the determination. The section seems to bo formed lor the purpose of imposing a duty. Whereas the amendment of 1873, in terms, prescribes what shall be the effect of delay to “ determine and file.” The language is clear and explicit that “any appeal,” ■*•**- “the determination of which is not made and filed with the clerk of said board of supervisors on or before the commencement of the next succeeding annual session thereof, shall be null and void, and the same shall be deemed as dismissed.” Thus we see that the third section of the act of 1876 imposes duties and directions when and how they shall be performed. The act of 1873 declares when appeals shall be “ null and void,” and when they “ shall be deemed as dismissed.” Tl¡.e two statutes are not inconsistent. The act of 1876 does not, therefore, supersede or take the place of the provision of 1873 ; nor is the act of 1873 inconsistent with the act of 1876 in its provisions declaring the effect of a failure to file a determination with the clerk. In the case before us the appeals were taken in 1876.

The “ commencement of the next succeeding annual session ” of the board of supervisors in Ontario county was October 2, 1877, and on that" commencement day there had been no determination -filed with the clerk of said board of supervisors,” and the appeals, therefore, by the act of 1873, were declared “ null and void,” and “ deemed as dismissed.” This construction gives effect to both acts, and does not require us to declare the act of 1873 to be repealed by implication. Such repeals are not favored, especially when the antecedent provision is a part of a system prescribed. (Hayes v. Symonds, 9 Barb., 260; Smith v. People, 47 N. Y., 330; The A. B. and C. Co. v. N. L. Company, 53 id., 123; Mongeon v. People, 55 id., 613.)

The appellants insist that the three supervisors could not join in one writ of mandamus, as relators. The writ was for the purpose of enforcing a duty which related to the public, and in such cases it seems a special interest in the subject is not necessary. (People v. Halsey, 37 N. Y., 348; People ex rel. Waller v. Supervisors of Sullivan County, 56 id., 250.) The defendants made a return upon the merits, and if there was an improper joinder of relators they should have taken the objection by a motion to quash the writ. (Commercial Bank v. Canal Com’rs, 10 Wend, 26.) Not having done so, and having answered or made return upon the merits, the objection should be deemed waived. We cannot see in this particular case how the defendants could suffer by the union of these applications under one writ to compel a performance of a like duty towards three several towns or how it could prejudice the defendants. (People v. Collins, 19 Wend., 67.) The form of the mandamus should be such as to require a compliance with the duty imposed by statute. The better practice is to state just what is required, instead of requiring in general terms a compliance with the act. (People ex rel. Green v. D. and C. R. R. Co., 58 N. Y., 163.) Because the “determinations” of the appeals before the State assessors were “ not made and filed with the clerk of the board of supervisors of Ontario county, on or before the commencement of the next annual session,” after the appeals in 1876 were taken, they were “null and void,” and the same must be deemed as dismissed. The statute is absolute, and there can be no construction which shall take away its sweeping effect; manifestly there is propriety in having every appeal, of the character provided for, disposed of before the beginning of another session, which has power to make another valuation. There should be a limit in respect to the pending of such appeals, otherwise they would work very serious complication. They would load to mischiefs as great as those which are to be cured by them.

The supervisors of Ontario were correct in concluding that, as the determination had not been “made and filed before their session commenced, the appeals were “ null and void.” They were, therefore, justifiable and right in refusing to pass the resolution which was offered in respect to the three appeals. Statutes prescribe limits for taking appeals from inferior tribunals. After the time has elapsed the right to appeal has gone. This statute prescribed the duration of such appeals as the three towns took, and. after the expiration of the statutory period the appeals are null and void, and there is no power in the board of supérvisors, the state assessors or the courts to revive them. They are' and “ shall be deemed as dismissed.”

Since this opinion was prepared our attention has been called to the opinion of the Court of Appeals in People ex rel. Supervisors of Westchester v. Hadley. (MS., March 18, 1879.)

In that case the opinion states “ that the return shows that it was forwarded by mail in due season to the clerks, and this, we think, was a substantial compliance with the law.” No such fact appears in this case, and, as we have before seen the statute is imperative, we must conclude there was an entire failure to file, or to mail for filing before the first day of the annual session next after the appeal Avas taken.

The order of the Special Term, alloAving a peremptory writ of mandamus and the judgment entered thereon, should bo reversed, without costs, and the writ dismissed, Avithout costs.

Talcott, P. J., concurred; Smith, J., not voting.

Order of Special Term allowing writ, and judgment entered thereon reversed, Avithout costs of the appeal, and writ dismissed, without costs.


author: Talcott, P. J.;

text:
    MILTON WEBSTER, Appellant, v. NOAH H. COLE and GILBERT PORTER, Executors, etc., of CYRUS WEBSTER, Deceased, JOHN WEBSTER and others, Respondents.

      When exceptions may he ordered to he heard in the first instance at General Term — a formal order must he entered — Review of a verdict rendered on the trial of issues, ordered on appeal from a swrogate’s decree — Code of Civil Procedure, § 1000.
    Motion for a new tria* on exceptions, ordered to be heard in the first instance at the General Term.
    The court at General Term said: “ This proceeding was to prove an alleged will of Cyrus Webster, purporting to have been made on the 26th day of February, 1873, by which it was claimed that the said Cyrus Webster disposed of all his estate, in substance, equally to and among all his children. The probate of said will was contested by Milton Webster, one of the said children, who claimed under an alleged prior will. The will of February, 1873, was presented and propounded for probate by the executor named therein to the surrogate of Monroe county, who admitted the will to probate. Thereupon the said Milton Webster appealed from the decree of the surrogate to this court, which reversed the decision of the surrogate on questions of fact, and in pursuance of the peremptory provisions of the statute ordered issues to be framed and tried at the Monroe circuit; such issues were framed and a trial was had. On the first trial the jury disagreed The said issues were tried a second time in June last, and upon such trial the jury found all the issues submitted to them in favor of the proponent, thereby finding that the said will of February, 1873, was executed and attested in the manner prescribed by law. That Cyrus Webster was at the time of making and subscribing the said will of sound mind and memory and capable of making a will, and that the said will was freely and voluntarily executed by him as his last will and testament, without duress, restraint, undue influence, fraud or imposition, practiced upon him by any person or persons. The appellant, Milton Webster, now seeks a review of that decision upon a case and bill of exceptions, and moves for a now trial of the said issues. We find at the end of the case a memorandum that the court ordered the exceptions to be heard in the first instance at the General Term.
    Section 1000 of the Code of Civil Procedure differs from section 265 of the -Old Code, among other things, in this. That section 1000 of the New Code evidently contemplates a formal order, to be made by the trial judge at anytime during the same term (at which the exceptions were taken), which he is to direct to be entered, ordering that the exceptions taken be heard in the first instance at the General Term, and that judgment on the verdict be suspended in the meantime. It does not appear that any such order was made in this case, aud the counsel on both sides seem to have paid no attention to the memorandum at the end of the case, as they both principally argue the question whether the verdict is against evidence; the memorandum referred to only purports to send the exceptions to the General Term in the first instance. Whereas, upon an order made under section 1000 of the Code of Civil Procedure, or under a direction made under section 255 of the Old Code, only exceptions can be argued.
    Besides, although the language of the said section 1000 would appear to embrace the trial of issues, directed by this oourt on the reversal of a decree of a Surrogate, we think, nevertheless, that it has no application to a case, situated as this is. The appeal was to the General Term of this court, which is still in possession of the case, for the purpose of ordering a new trial, if a now tidal should become necessary or proper. (Watts v. Ailcin, 4 Ilow. Pr., 439; Wever v. Marvin, 14 Barb., 376; Marvin v. Marvin, 3 Abb. Ct. of App. Dec., 192-197.)
    But, disregarding the manner in which- the case is presented, we proceed to consider, in the first place, the exceptions of the appellant. The counsel for the appellant claimed the right to open and close the case, and excepted to the ruling of the trial judge holding the contrary. A sufficient answer to that exception is to he found in the order framing the issues, which expressly provides that the proponents of the will have the affirmative on the trial of the issues. * * *
    This brings us to the merits of the case. The counsel upon both sides seem to have labored under a misapprehension of the powers of this court in regard to the treatment of the verdict of a jury in such a case. The question was fully examined in Mar- ■ vin v. Marvin, decided by the Court of Appeals in 1868, and reported in Abbott’s Court of Appeals Dec., vol. 8, 192.
    In that case it was settled that in such a case this court sits as a court of law, and the verdict is conclusive unless there were such errors in law committed on the trial, or the verdict is so clearly against evidence that it is the duty of the Supreme Court, sitting as a court of law, to set it aside. In that case .the Court of Appeals, by Woodruff, judge, among other things, said: “It is claimed that the verdict is not controlling, and that, like an ordinary feigned issue out of chancery, its office and purpose is to assist the conscience of the court, which may nevertheless, on the coming in of the verdict, look into the evidence, and if not satisfied with the finding may order a new trial, or may disregard the verdict and proceed to a determination of the case according to the judgment of the court itself upon all the proofs. I apprehend this is an erroneous view of the effect of the verdict in this proceeding, and that the statute forbids our so regarding the verdict.”
    We are not satisfied that the practice of ordering the exceptions to be heard in the first instance at a General Term applies to such a case as this, and that we have considered the exceptions in tins case, must not be taken as authority for such practice in the future, in a case where exceptions, even if technically well taken, do not necessarily show that the judgment should be reversed.
    Having concluded that no error was committed on the trial, and the evidence being in our opinion sufficient to sustain the verdict, we have no course to pursue but to order such a judgment as is required by the verdict, and affirm the previous decision of the surrogate, whereby the will of February 26, 1873, was admitted to probate. And we are not, as the Court of Appeals was, embarrassed in coming to a conclusion in accordance with the verdict in this case. It seems to us that the verdict was justifiable, and ought to be sustained on the principles laid down by the court of last resort in numerous cases, especially in the case of the Children’s Aid Society v. Loveridge (70 N. Y., 400).

      John H. Martindale, for the appellant. D. G. Shuart, for the respondents.
   Opinion by

Talcott, P. J.;

Smith and Hardin, JJ., concurred.

New trial denied, and the decree of the surrogate of Monroe county, admitting the will of Cyrus Webster to probate affirmed, upon the verdict of the jury impanelled to try the issues touching the validity of said will, and this decision and said verdict ordered to be certified to the said surrogate by the clerk of this court, with costs to the respondent to be paid by the appellant.


author: Davis, P. J.:

text:
    HELENA WILLICK AND BRACCONIA CHRIST by EDWARD H. STROTHER his guardian, Respondents, v. ROBERT TAGGART AND MARY ANN TAGGART his wife, Impleaded with others, Appellants.

      Power of the guardian of d minor, to extend a mortgage.

    On October 25, 1873, one Samuel Christ was the general guardian of two minors, one of about the age of eighteen years, and the other of about the age of ten years. He then held for them a mortgage, given by the appellant, on which there was then due $5,000, and interest for six months. On that day an agreement was made by which the appellant paid to him $1,400, for four years’ interest in advance upon the mortgage, and Christ indorsed a receipt therefor on the bond, and extended the time for the payment of the remaining sum secured thereby until April 25, 1878.
    Subsequently Christ absconded, but there was no evidence to show that the agreement was collusive, or that the money had not been applied to the benefit of the children. Held, that the extension was valid and should be sustained.
    Appeal from a judgment in favor of the plaintiffs, entered upon the trial of this action by the court without a jury.
    This action was commenced in September, 1877, to foreclose a mortgage given by the defendant Taggart and wife.

      John A. Mwpes, for the appellants.
    At the time of the |1,400 payment by defendant, Samuel Christ was the general guardian of both minors, and as such held the legal title to the bond and mortgage, and his agreement to extend the same was valid. (Chapman v. Tibbetts, 33 N. Y. R., 289; Field v. Schieffelin, 7 Johns. Ch., 150; Tuttle v. Heavy, 59 Barb., 343; Sutherland v. Brush, 7 Johns. Ch., 17.) A general guardian possesses all the powers of a testamentary guardian. (R. S. Bks. [6th ed.], vol. 3, p. 165, § 10.) The payment was made in good faith, and the amount thereof should have been credited to the defendant. There was no pretence or finding that such payment was made collusively by defendant, or that the guardian failed to apply the moneys so received by him for the use and benefit of his wards. These facts not being found cannot be assumed. (Comstock v. Ames, 3 Keyes, 360; Ward v. Center, 3 Johns., *281; Henry v. Henry, 8 Barb., 592.)

      B. C. Chetwood, for the respondents.
   Davis, P. J.:

This is an action to foreclose a mortgage executed by the appellants to one Theodore Christ, as general guardian of the infant children of Bernard Christ, bearing date the 28th of April, 1868, to secure the sum of $5,600, payable five years after date, with interest at seven per centum per annum, payable half yearly. It comes before us upon the verdict and judgment, the findings of the court and exceptions thereto, but without any of the evidence given upon the trial.

Theodore Christ died prior to March 28, 1871, and on that day Samuel Christ was appointed general guardian of such children by the surrogate of the county of New York.

The court finds that the children of Theodore Christ were his daughter Helena, who came of age on the 12th of June, 1876, and his son Bracconia, who became fourteen years of age on the 7th of April, 1877 ; that on the 27th of April, 1871, $600 of the principal was paid to said Samuel Christ; that on or about October 25, 1873, the appellant, Robert Taggart, paid to the general guardian $1,400 for four years’ interest upon said bond and mortgage, there then being but six months’ interest due, and the said guardian indorsed a receipt on the bond accompanying said mortgage for $1,400, in full payment of four years’ interest from April 25, 1873, to April 25, 1877, and extended the time to pay the principal sum until April 25, 1878.

The court found, as conclusions of law, that the guardian had no authority to extend the time of payment of the principal beyond the majority of his ward Helena, or beyond the age of fourteen years of his ward Bracconia, and that the appellants were not entitled to any credit upon said bond and mortgage for any portion of the $1,400 so paid by him, except for so much thereof as paid the interest due to November 1, 1873, and that the principal sum of $5,000, with interest thereon from November 1, 1873, is, therefore, still due and unpaid upon said bond and mortgage, and ordered judgment accordingly. Hue exceptions were taken. There is an absence in this case of any finding of collusion between the guardian and the appellant, and there is no finding that the money received for interest in advance was not applied in any form to the use of the wards or invested for their benefit. The question presented is the naked one, whether payment of the interest in advance and the agreement to extend the payment of the bond and mortgage was void for want of power in the guardian to receive the money and make the extension.

It is true the court found that the guardian absconded without finding at what time, but the plaintiff's reply to the answer alleges that he absconded about a year after the money was paid.

In the absence of all-finding to the contrary it seems to us that the presumption would be that the guardian did his duty, and either applied or invested the interest paid in advance to or for the benefit of his wards.

In Chapman v. Tibbits (33 N. Y., 289) it was held that the general guardian of infants has the same power over the property and estate of his wards as a testamentary guardian, can receive moneys, secured to them by mortgage, and discharge the mortgage before the same becomes due.

In Field v. Schieffelin (7 Johns. Ch., 150) the guardian had assigned the bond and mortgage before its maturity, and Chancellor Kent said : “ The bond was not due when it was assigned to the plaintiff; but if the money was wanting for the purposes o'f the trust, either for discharging incumbrances or for making more advantageous investments, or for payment of debts and for the better maintenance and education, of the ward, or for any purpose whatever connected with the faithful discharge of the trust, and beneficial to the infant, the guardian had just and lawful authority to raise the money by the assignment of the bond and mortgage. The necessity or expediency of the measure rested entirely in the judgment or discretion of the guardian.

And, again, in the course of the opinion, he said: “ There is no direct or positive evidence that the guardian has in truth misapplied or wasted the infant’s money. * * * But when it becomes necessary not only to establish the fact of breach of trust, but of a participation of the plaintiff in the fraud, we ought to have something more decisive than a presumption resting on such a basis.” (His insolvency.) “It is1 very possible, and consistent with every established fact in the case, that the money received by the guardian from the plaintiff was duly invested in other property in the name and for the benefit of the infant.”

We are not able to see any reason why a general guardian’s power does not extend to the receiving interest in advance of its falling due. It is manifest that doing so might, under some circumstances, be highly advantageous to the trust, and the mere fact that interest - has been received in advance by the general guardian, who has power to receive the principal before it matures, is of itself sufficient to justify the legal conclusion that he could use that power. The payment of the interest appears to have been made in connection with the agreement to extend the time for payment. In the absence of all fraud and collusion, we do not see why the general control which the guardian has over the estate of an infant does not authorize the extension of the time of payment to a date, at least, till the ward attains full age. Such extension may be invalid, perhaps, for the excess beyond the majority of the ward, and, as in this case, the agreement extended beyond the time when one ward arrived at age, it may perhaps be regarded as invalid pro tanto. But it would not, we think, be invalidated by the arrival of the other ward at the age of fourteen, because the guardianship would continue in respect of him beyond that period.

We think, in the absence of all proof of collusion, and of all proof tending tó show the disposition of the moneys paid for interest in advance, the conclusion of the learned court cannot be sustained.

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

Beady and Pottee, JJ., concurred.

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


author: Davis, P. J.: Barrett, J.: Brady, J.,

text:
    ALBERT RIGGS, Respondent, v. FREDERICK WAYDELL, JOHN H. WAYDELL, and W. ANDERSON WAYDELL, Appellants.

      Offer of judgment — vihen an amendment to, not allowed — Code of Civil Procedure, § 740.
    Defendants’ attorney served an offer to allow judgment to be taken for a sum named, with costa, which was signed by him, but was not accompanied by an affidavit showing his authority to make it, as required by section 740 of the Code of Civil Procedure. Plaintiff served a notice declining to accept the offer but giving no reason therefor. Upon the trial the plaintiff recovered less than the amount named in the offer.
    Thereafter the defendant moved to be allowed to amend the offer by annexing thereto his affidavit showing his authority to make it. Held, that the motion was properly denied. (Beady, J., dissenting.)
    ■ Appeal from an order denying a motion made by the defendants to amend an offer of judgment and for an additional allowance.
    The action was brought to recover $4,442.50 as a balance due for goods sold and delivered. The answer was a general denial. Twenty days after the service of the answer, and before further proceedings were had in the action, an offer for judgment was served on plaintiff’s attorney as follows: * * * “The defendants in this action hereby offer to allow judgment to be taken therein against them for the sum of $800, and interest thereon from April 26, 1877, with costs. * * * N. B. Hoxie, defendants’ attorney.” The defendants’ attorney was in fact authorized to make such an offer. Plaintiff’s attorney served a notice that “the plaintiff in this action cannot accept the offer of judgment made by the defendants.” The referee found for the plaintiff for $722.49. Defendants’ motion for an allowance, and for leave to make and serve an affidavit of authority nunc pro tunc, was denied upon the ground that the offer was invalid, for want of the affidavit mentioned in section 740 of the Code of Civil Procedure, i. e., that the attorney was authorized to make the offer.

      JST. B. Iloxie, for the appellants.

      J. Hervey OooJc, for the respondent.
   Davis, P. J.:

In passing upon the question involved in this opinion, the court below gave the following brief opinion :

Barrett, J.:

There is no material distinction between this ease and McFarren v. St. John (141 Hun, 387). The declination was superfluous, and left the matter precisely as though it had not been served. There is no such thing as creating an offer by waiver; either there was an effective offer or there was not. The plaintiff could not waive it into validity as against the defendants. True, he called it the defendants’ offer, and so it was the defendants’ invalid offer. It comes to this : If the defendants desired the benefit of the statute, they were bound to do just what the statute pointed out. This they did not do, consequently the cause proceeded without a statutory offer. To talk of amending so as to alter the present legal status is to misconceive the office of amendment. Besides, that would be to make now and for the first time a good offer. That being so, by what authority would we deprive the plaintiff of his statutory right to accept within ten days from the present date ? The motion to amend by adding the affidavit of authority required by section 740 of the Code of Civil Procedure, and for an allowance, must be denied, but under the circumstances, without costs.”

We think this opinion is entirely correct. The verdict recovered was less by a considerable sum than the amount named in the offer; but as the offer did not comply with the requirements of the Code, it was invalid, and the plaintiff was not under obligations to' accept it.

I Ye cannot by order now put the parties in the condition they were at the time .the invalid offer was made, without allowing the plaintiff the opportunity to elect to accept the amount offered as of the date of the offer.

If the plaintiff accepted the offer he would be entitled to judgment for the amount of the offer, with costs up to that time, and the trial and subsequent proceedings would go for nothing.

We think the order should be affirmed, for the reasons assigned by the court below, with ten dollars costs and disbursements.

Potter, J., concurred.

Brady, J.,

dissenting:

The offer to allow judgment to be taken in this case was not returned in consequence of its non-compliance with the 740th section of the Code of Civil Procedure. The answer to it was simply that the plaintiff would not accept the offer of judgment made. This non-compliance was dated January 5, 1878, and it seems to have been accompanied by a letter of the same date to which reference is made in the oiler. No suggestion is made in the letter, nor in the notice of non-acceptance of any irregularity or informality of the offer. Nor was any reference made to such a circumstance in the subsequent letter of January 18, 1878, and it appears that the defendant’s attorney was not aware of it until the 9th of November, 1878.

It is quite apparent, therefore, that when the offer was declined, it was upon its merits, and not by reason of any irregularity or non-compliance with the statute. I think the plaintiff’s attorney was bound to state his reasons for rejecting the offer, if they rested upon its non-compliance or imperfection in not conforming to the section of the Code mentioned.

The propriety of requiring this to be done is illustrated by the fact that the error in form was -not discovered by the defendant’s attorney until after the report of the referee was made. The silence of the plaintiff’s attorney justified him in assuming that the offer was rejected, solely because the sum named was too small. Having initiated a bona fide proceeding to avail himself of the provision of the Code on the subject of offering a judgment to be taken against him, the law of amendments was sufficiently comprehensive to permit the defendant to correct the error committed, and it ought to have been allowed under the circumstances of this' case. I therefore dissent.

Order affirmed, with ten dollars costs and disbursements.


author: Beady, P. J.:

text:
    FRANCIS SWIFT, Appellant and Respondent, v. THE MAYOR, ALDERMEN AND COMMONALTY OF THE CITY OF NEW YORK, Respondent, and the POLICE DEPARTMENT OF THE CITY OF NEW YORK, Appellant.

      City of New York — not liable on, contracts of the police department, made wnder chapter 677 of 1872 and chapter 335 of 1873.
    The city of New York is not liable on contracts for removing garbage or sweeping the streets, made by the police department under chapter 677 of 1872, as amended by section 67 of chapter 335 of 1873.
    Appeal by the plaintiff from a judgment dismissing the complaint as against the defendant, the Mayor of the city of New York, and by the defendant, the Police Department, from a judgment in favor of the plaintiff against it.
    The action was brought to recover the amount due to the plaintiff, under a contract for furnishing boats to remove the garbage and street cleanings from the limits of the city.

      William Hildreth Field, for the plaintiff, appellant and respondent.
    --, for the Police Department, appellant.

      Francis Lynde Stetson, for the city, respondent.
   Beady, P. J.:

In March, 1874, the police department employed the plaintiff to furnish boats to remove the garbage, etc., from the city, the product in part of cleaning the streets, and agreed to pay the plaintiff at the rate of $800 per month during the time such service should he rendered.

In 1873 the department had invited proposals for removing garbage from the city, and the plaintiff was one of the bidders. He offered to do the work for $10,000 per year. These bids were, however, all rejected, and new proposals were invited and received, which do not seem to have been acted upon. A written contract appears to have been directed, but never completed, and the work, •therefore, for which the plaintiff seeks to recover hi this action was verbally authorized, although it was the same as that for which the bids had been invited. From the testimony it would seem that this mode of accomplishing the object in view was an experimental one, the plaintiff being employed in such a way that the arrangement between him and the department could be concluded at once, at-the option of the latter. As the continuance of a contract, such as was made verbally between the plaintiff and the police department, might involve the expenditure of more than $1,000, the counsel for the defendant insisted that it was a violation of that provision in the charter of 1873, section 91 (ch. 335), which prohibited the expenditure of more than $1,000, except under a contract made in accordance with the requirements of that statute, and on the trial insisted upon the right of going to the jury, upon the question whether the contract made was not a cover to avoid the effect of the $1,000 restriction.

The main question, however, presented on this appeal, is whether the city of New York is liable for the plaintiff’s claim. The act of 1872, chapter 677 of the Laws of that year (amended by the charter of 1873, cA. 335, section 67), provides that the board of police shall have full exclusive power and' authority to discharge the duty of causing all the streets, piers and slips in this city to be thoroughly cleaned and kept at all times, and to remove from the city daily, and as often as may be necessary, all ashes, garbage, etc., and the sums necessary for the purposes are by law to be appropriated, and to be subject to the order and requisition of the board of police upon the finance department, in the mode proscribed by law. •

It is also, by statute, declared to be the duty of the police department to pay all claims and demands, which may arise in the performance of the exclusive duty thus imposed upon them.

We entertain no doubt that under these circumstances, in accordance with well settled rales in reference to the liability of the municipality, that the city of New York is not responsible for any contract made by the police department for the cleaning of the streets, or the removal of garbage, and that the police department being specially charged by law with that duty, and being provided with the necessary funds to meet the expenses to be incurred, is liable. (New York Balance Dock Co. v. Mayor, 8 Hun, 247; Maximilian v. The Mayor, 2 id., 263.)

We do not think that the other defendants can avail themselves of the omission to obtain the certificate of the necessity of the expenditure under consideration, prior to making the contract, which was made, as would seem to be required by the charter of 1873, section 92, because that point was not made upon the trial, and it is too late to present it for the first time on the appeal. Non-constat, but that if it had been taken in the court below it might have been obviated.

Eor these reasons the judgments are affirmed, without costs to either party.

Ingalls, J., concurred.

Present — Beady, P. J., and Ingalls, J.

Ordered accordingly.


author: Brady, P. J. :

text:
    GEORGE CHESTERMAN and CAROLINE P. CHESTERMAN, his wife, v. GEORGE C. EYLAND and others.

      Chamberlain of New York — My of, as to investment of funds —when not personally responsible for inadequacy of security.

    On March 18,1874, $5,767.38, the share of an infant defendant, M. O. Timpson, in the pi’oceeds of certain real estate sold in an action for partition, were, in pursuance of the terms of the judgment therein, paid to George W. Lane, then chamberlain of the city of New York. This money was by him paid out to otter parties, and certain bonds and mortgages theretofore held by tbe chamberlain for such parties, were transferred to the account of, and held for, the said infant. At that time the property covered by one of these mortgages was an adequate security for the money secured thereby; but subsequently, owing to a decline in the value of real estate, and of a large assessment imposed upon the mortgaged property, it was bought in upon a sale, had under a foreclosure of said mortgage, by the city chamberlain at the amount of the assessment.

      Held, that an application by M. C. Timpson to compel the said Lane and his successor in office to pay over the moneys so deposited, was properly denied.
    Appeal from an order denying a motion made by Maiy C. Timpson, for an order directing George W. Lane and J. Nelson Tappan to pay to her the moneys deposited with the chamberlain of the city of New York to her credit, March 18, 1874, by an order of the court made in the above entitled action, brought for a partition and sale of real estate, dated December 15, 1873.

      Edward F. Brown, for the appellant, Mary C. Timpson.

      O. II. Woodruff, for the respondent, George W. Lane.
   Brady, P. J. :

The moneys in question are proceeds of real estate sold under a decree in partition, by which the referee who made the sale was directed to bring into this court three of such equal thirty-sixth parts or shares, being for the shares of the infant defendant Mary C. Timpson, and deposit the same with the chamberlain of the city of New York, unless otherwise ordered by this court.

On the 18th of March, 1874, George W. Lane, then city chamberlain, received $13,457.23, the proceeds of this sale. Mary C. Timpson’s portion of it amounted to $5,767.38. About the time these moneys were received by Mr. Lane, as chamberlain, he needed the amount to make payment of sums which the court, by order, required him to pay to other parties, whose moneys had been previously deposited with the city chamberlain by order of the court, and instead of converting or transferring the bonds and mortgages in which the moneys belonging .to such other parties were invested, he paid Mary C. Timpson’s moneys to them, and credited to this action certain bonds and mortgages on his books as city chamberlain. One of these mortgages was made by Edward. Joues in 1867 ; it was on eight vacant lots on 147th street and Seventh avenue, and was originally given for $15,000. On the security of these eight lots, and of other lands on 127th street, which latter were, however, released in October, 1867, and the mortgage reduced to $10,000. When Mr. Lane appropriated Miss Timpson’s money to pay sums out to other parties, and carried this and other bonds and mortgages to the credit of this action, the taxes on these eight lots for 1871, 1872 and 1873, were unpaid; but they were subsequently paid. It appeared also that they were, in September, 1875, heavily assessed, indeed to the amount of $8,000, and upwards, which seems to have been in excess of their then actual value. These lots were, in March, 1877, sold under a foreclosure of the Jones -mortgage, and bought in by Mr. Tappen, the present chamberlain, foils, 000; he purchasing under the advice of counsel, and for the protection of all whom it might concern. It appears that Mr. Tappen, since the purchase, made certain payments, which it is not necessary to consider in deciding this appeal.

The practice of massing the funds of infant defendants in this way appears to have been the practice of the chamberlain’s office for many years prior to the appointment of Mr. Lane as city chamberlain, and, it may be said, seems to have been attended with success.

It may also be said that at the time the transfer was made by Mr. Lane of these moneys the property was abundant security for the amount appropriated by him, and even -upon a forced sale then would have realized the amount of the loan.

It may perhaps be further said that the value of the property, and its completeness as a security, continued until the depreciation of real estate, which was very rapid and marked in 1875.

The rule of this court in regard to moneys received by the city chamberlain, who is the county treasurer of this county, under and by virtue of any law vesting him with funds or securities belonging to any suitors in this court, required that they should be deposited by him, in his name of office, in one or more of the companies named in the rule, or in such bank or trust company as this court might direct as a bank of deposit, unless the order or judgment under which such moneys were brought into court should direct them to be deposited with some other bauk or company. (See Supreme Court, rule 83 of 1849, rule 79 of 1852, rule 81 of 1858, rule 82 of 1871, and rule 82 of 1874.)

A further rule required the county treasurer to make a report to the court containing a statement of the funds and securities under his control, deposited with him, which statement should show the amount in his hands uninvested, and all stocks, bonds and mortgages, and other investments, for the benefit of suitors or otherwise. And the statute (2 R. S., 328, § 70), in providing for the investment of the proceeds of sales in partition, required mortgages upon unincumbered real estate of at least double the value of such investment. And rule 180 of the late Court of Chancery required that the value of the land to be accepted as security, exclusive of the building, should be considered. There does not appear to have been any rule absolutely requiring the selection .of improved real estate.

It is quite apparent that investments by the chamberlain on bond and mortgage were authorized, unless the order or judgment under which deposit was made with him otherwise directed, and that an investment by Mr. Lane of the moneys received by him, in that mode, if proper care and vigilance were exercised with reference to the value of the security given, was entirely justifiable.

It may be questioned whether the transfer of a bond and mortgage, in the mode which has been described, is strictly considered an investment on bond and mortgage. But we do not see that it would be more disadvantageous than an actual investment, where the mode fails in consequence of a sudden and violent depreciation in the value of the security.

The investment of the moneys in the manner described, and not, as it appears, in violation of the order or rule or decree of the coiut, or of the law applicable to the subject, and the security accepted, having been abundant, it is impossible to say that Mr. Lane was guilty of any dereliction of duty or of any negligence, and having arrived at this conclusion it would be unjust to hold him personally responsible for the unfortunate result of his act in thus investing the moneys.

Unless this court is prepared to declare, as a legal proposition, that the county treasurer is an insurer against loss by the investmeut of moneys which come to his hands, in a mode prescribed by law, we do not see how we can hold him responsible under the circumstances disclosed by the facts in this case.

It is very much to be regretted that the moneys belonging to Mary C. Timpson cannot be obtained from any known source through the power of this court, which would be otherwise gladly exercised for the purpose. But it cannot be done. No way has been suggested, and no mode occurs to the court. It might be possible to regard it as a county charge and to provide for it by legislative action, inasmuch as the property which was taken as security is now in the possession of the city substantially through the purchase made by the city chamberlain. This is a matter, however, for the consideration of the city anil county authorities, and for their action if they deem it a proper subject for their interference. Of course these observations apply to the other mortgages employed for a like purpose in this matter.

For these reasons we think the order appealed from should be affirmed, without costs, inasmuch as the question is a difficult one, in the consideration of -which this court has felt very great embarrassment.

Potter, J., concurred. Present — Brady, P. J., and Potter, J.

Order affirmed, without costs.


text:
    ELLEN J. McBRIDE, Plaintiff, v. LEONARD LEWISOHN, Defendant.

      Sale in foreclosure — it is an irregularity for .the ref wee to sell more lots than is necessary • — what is a waivw of the irregularity by the owner of the equity of redemption.

    In August, 1SE55, in pursuance of a judgment directing the sale of certain mortgaged premises, consisting of ten vacant lots, or of so much thereof as might be necessary to pay the amount due, the referee sold all the ten lots, separately, although on the sale of the ninth enough had been realized to pay the amount due and all charges, and leave a surplus. Subsequently, the surplus having been paid over to the city chamberlain, a second mortgagee filed a claim thereto, whereupon a referee was appointed, who made a report in regard thereto, after a hearing-, and due notice to all parties interested.

      .Held, that although the sale of the tenth lot by the referee was unauthoi’ized by the judgment, yet that the owner of the equity of redemption was estopped from questioning the validity of the title acquired by the purchaser, by reason of his acquiesence therein and his failure to object to the proceeding had for the distribution of the surplus.
    Controversy submitted upon admitted facts, under section 1279 of the Code of Civil Procedure.

      Asher li. Morgan, for tlie plaintiff.

      Meyer 8. Isaacs, for the defendant.
   Brady, P. J. :

Tlie defendant contracted to purchase from the plaintiff two lots of land on Ninety-ninth street in this city, one of which is known as lot No. 778 on the map of lands of Benjamin L. Benson. It is insisted, upon the part of defendant, that the title to lot No. 778 is defective, and that the plaintiff cannot therefore convey a good title according to her contract.

The reason assigned for the defectiveness of the title is, that in an action in the Supreme Court, wherein Mantón Eastburn was plaintiff, and Edmund J. Porter and others were defendants, for the foreclosure of a mortgage covering ten lots, including lot 778, the decree provided for the sale of the mortgaged premises, or so much thereof as should be necessary to pay the amount reported due, with interest, costs and expenses of the sale. The referee sold under the decree the whole of the mortgaged premises in ten separate lots, parcel No. 778 being the last sold. When the ninth lot was sold there was not only sufficient to pay the amount reported due, with interest, costs and expenses of sale, but there was a surplus. The premises were and are vacant and uninclosed. The defendant in the foreclosure suit, Amelia A. Godet, was a married woman, and the owner of the equity of redemption at the time of the commencement of that action, and when the judgment was entered and the sale took place. In the foreclosure proceedings all the subsequent mortgagees, the owner of the equity of redemption, and all other necessary and proper parties, were in-eluded, and it would seem all appeared by attorney. Tbe lot in question was sold under the decree prior to the 2d of August, 1855, and has since then been several times conveyed.

The owner of the equity of redemption does not appear to have made any objection to the sale of lot 778, although apparently in excess of the power conferred by the decree, and for aught that is shown in this controversy has never, since the sale, in any way claimed any right or title to it.

It appears also that after the sale of the premises Edmund J. Porter, one of the defendants named in the foreclosure proceedings, being the second mortgagee, filed a notice of his claim to the surplus moneys occasioned by the sale of the lot in question, and on the 22d of September, 1855, an order of reference was duly made by this court to David L. Fowler, reciting the fact that the report of sale had been made, showing a surplus of $339.50, paid over by the referee who sold, to the city chamberlain to the credit of the action. The referee was ordered, among other things, to ascertain and report the amount due to Porter, or any other person, and to ascertain and report as to the priority of liens, and to summon before him every party who had appeared in the action, and also all who had filed a notice of claim with the clerk of the court, etc., and to report to the court. The referee filed his report on the 10th of October, 1855, and reported, among other things, that he had caused due notice to be given of the time and place of said reference, and notice to attend the same to every party who had appeared in said action, and of all who had filed notice of claims to such surplus, as directed by the order.

The first question presented by these facts is whether, under the provisions of the decree, there was any authority for selling lot 778, when a sufficient amount had been realized by the sale of the other lots to pay the amount reported due, with all the costs and expenses of the sale. We are inclined to the opinion that the sale was unauthorized, from the language of the decree which confined the sitale to a quality of the mortgaged premises sufficient to pay the amount decreed to be due, with the costs and expenses.

There is no doubt, however, that the court, on an application at the foot of a decree, might have directed a ‘further sale of the premises to pay the subsequent mortgages or claims (De Forest v. Farley, 62 N. Y., 628; Livingston v. Mildrum, 19 id., 440); which, in our interpretation of these cases, is all that is decided by them. They did not declare that more than the necessary quantity of land might be sold by a referee where the decree directs that a sale shall bo made to realize a particular sum.

We think, however, that the sale of the ten lots having been made, the proceeds paid into court, and the authority of the court having been exercised over them with regard to the second mortgage, upon due notice to all the parties, and the owner of the equity of redemption having made no objection, that the validity of the sale is established beyond doubt. The owner of the equity of redemption was the only person having any right whatever to question it, and by omitting to take any action with regard to the alleged improper sale, and by permitting the proceedings to go on in reference to the surplus occasioned by the sale, she has waived all right to any consideration on that subject and is estopped.

For these reasons we think that the plaintiff is entitled to judgment, requiring the defendant to complete his purchase.

Ordered accordingly.

Ingalls, J., concurred. Present — Brady, P. J. and Ingalls, J.

Judgment ordered for plaintiff.


author:
Lawrence, J.: Ingalls, J.:

      Beady, J.:

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      In the Matter of the Petition of JAMES VAN BUREN, Respondent, to Vacate an Assessment, etc.

      Chapter 566 of 1871 — when the filling in of lots is not authorized by — what a substantial error, within chapter 312 of 1874.
    Under chapter 566 of 1871 authorizing the draining of lands in the city of New York, when necessary for the public health, the board of health directed the commissioner of public works to drain the lands in a certain district. The department of public works accordingly entered into a contract for building 3,32S feet of drain, and for furnishing and laying 231,000 cubic yards of filling. In prosecuting the work a number of lots belonging to private individuals were filled by direction of the department of public works, though such filling was not necessary to the construction of the drain; 431,619 cubic yards of filling were charged for and included in the assessment.

      Eelcl, that such filling of lots was not authorized by the act, and that the increase of the assessment caused thereby constituted a substantial error within the meaning of section 1 of chapter 312 of 1874, and required the assessment to be vacated.
    Appeal from an order made at Special Term, vacating an assessment upon the property of the petitioner.
    The board of health under chapter 566 of 1871 directed the commissioner of public works to drain the lands between Ninety-second and One Hundred and Ninth street and Third avenue and the East river. The department of public works thereupon advertised for proposals and entered into a contract for building 3,328 feet of drain, and for furnishing and laying 231,000 cubic yards of earth filling.
    While the work was in progress, and without further advertisement or contract, the department of public works directed the contractor to furnish and lay two hundred thousand additional cubic yards of earth filling, and to furnish 139,776 feet of foundation plank. Part of the additional earth filling was rendered necessary by reason of the offensive odor, caused by the bad materials used in the first part of the earth filling. It was not necessary for drainage.
    The cost of the work, which was assessed upon the property owners, is as follows :
    Drain $5,491 20
    431,000 cubic yards earth filling, $280,552 35
    139,777 feet of foundation plank, 4,193 28 284,745 63
    Total.......$290,236 83
    The following opinion was delivered at Special Term:

       As to building drains on private land under the act of 1871, without making compensation to the owner, see Matter of Cheesbrough, post page, 561.

   Lawrence, J.:

I am of the opinion that the assessment in this case should be vacated and set aside..

First. It may well be doubted under the decision of the Court of Appeals in the case of People ex rel. Williams v. Haines (49 N. Y., p. 587), and In the Matter of Rhinelander (MSS. opinion), whether, as the drains contemplated to be constructed under the act of 1871, chapter 566, are to be run through private property, and the public is thereby to acquire an easement in said land, the owners thereof are not entitled under article 1, section 6 of the Constitution, to compensation for such an interference with their proprietary interests. In the view which I take of this case, it is not, however, necessary to pass upon this point.

Second. The assessment should be vacated because, in point of fact, it is not levied for work which can be said to have been performed under the act of 1871. That act contemplates an assessment for expenses incurred in constructing drains. In this case it will be seen that the great bulk of the assessment is for work done in filling up the lots, embraced in the area bounded by Ninety-second and One Hundred and Sixth streets and the First and Third avenues.

Between One Hundredth and One Hundred and Fourth streets and the First and Second avenues, there are no drains, but there is a vast amount of filling. Between Ninety-sixth and One Hundredth streets and the First and Second avenues, no work appears to have been performed, either in constructing drains or in filling. The same may be said of the area lying between the Second and Third avenues and One Hundred and Second and One Hundred and Sixth streets.

Between One Hundred and Second and Ninety-fourth streets and the Second and Third avenues drains were constructed, but the filling constitutes the principal portion of the work. Between Ninety-second and Ninety-third streets and Second and Third avenues, no work has been executed. Between Ninety-second and Ninety-fifth streets and the First and Second avenues the work includes both drains and filling.

The assessment is laid for the entire work, and it is only necessary to look at the statement of the work charged for, to see that the draining of the lots was not the main work, and that it constituted an insignificant and almost an infinitesimal portion of the expense which it is now proposed to impose upon the property-owners. It appears, from the assessment list, that there were 3,328 lineal feet of drains, at $11.65, making a total of $5,491.20, ■while there were 431,619 cubic yards of earth-filling, at sixty-five cents per yard, making a total of $280,552.35, which is almost fifty-one times the amount expended for the construction of the drains. If this is not a “ substantial error,” it is difficult to see what can be comprehended under those words.

J. A. Beall, for the petitioner, appellant.

Charles B. Miller, for the Mayor, etc., of New York, respondent.

Third. I do not mean to be understood as denying that the coi’poration has the power to direct the filling up of sunken lots, where the municipal authorities have proceeded in the manner pointed out by the laws relating to that subject.

But the filling of sunken lots is not the construction of drains, under the act of 1871, and the corporation cannot, under the garb of exercising the authority conferred by that act, exercise another and a totally different power, conferred by other and different legislative acts, and involving another and different procedure.

Fourth. There are many errors relied upon by the counsel for the petitioner in this case as vitiating the assessment, but it is unnecessary to notice them, inasmuch as the error already alluded to is so glaring, and, in the language of the act of 1871, “ substantial,” that no further argument appears to be needed to show that justice demands that the assessment should be set aside.

Let an order be entered vacating the assessment.

Ingalls, J.:

The application for relief against this assessment was made by a petition to the Special Term, and entertained and decided under chapter 312 of the Laws of 1874. This statute amends a former statute, passed April 17, 1858 (chap. 338), entitled, “an act in relation to frauds in assessments for local improvements in the city of New York.” The statute referred to provides as follows :

“ Section 1. If in the proceedings relative to any assessment or assessments for local improvements in the city of New York, or in the proceedings to collect the same, any fraud or substantial eiror shall be alleged to have been committed, the pai’ty aggrieved thereby may apply to a judge of the Supreme Court, in Special Term or in vacation, who shall thereupon, upon due notice to the counsel of the corporation of the city in which the lands so assessed are situated, proceed forthwith to hear the proofs and allegations of the parties.” •

This statute authorizes the court to vacate the assessment in case fraud, or substantial error, has been committed. In this matter the court vacated the assessment, upon the ground that substantial error had been committed in making the assessment, as appears by the opinion delivered at Special Term. We are satisfied that the decision was correct, and should be sustained. The assessment was made under chapter 566 of the Laws of 1871, which provides as follows :

“ Section 1. Whenever it shall appear to be necessary, for the protection of the public health, that any part or parcel of land within the corporate limits of the city and county of New York, needs to be drained by other means than by sewers, and it shall be so certified by the city sanitary inspector, and such certificate is filed among the records of the board of health of the health department of said city, the said board shall direct the same to be done by and under the direction of the department of public works of said city and county.
“ Section 2. All parts and parcels of land lying below the levels of the sewers adjacent thereto, upon which surface water remains stagnant, or through which water courses have, or at present do run, may be so drained by a properly constructed blind drain which shall be carried along such natural water course .until it can be made to enter any sewer at its proper level, or if such sewer cannot be reached, it shall be carried to the adjacent river.
“ Section 3. All lands benefited by said drain, directly or indirectly, for a distance from said drain, included between the adjacent streets and avenues thereto, shall be liable to assessment thereon pro rata in proportion to the direct or indirect benefit derived from the construction of said drain. The assessment to be made and collected as other assessments for the public benefit are provided for. The assessments to become a lien upon the property assessed, as in like cases provided.”

The board of health under that act directed the commissioner of public works to drain the lands between Ninety-second and One Hundred and Ninth streets and Third avenue and East river. The department of public works thereupon advertised for proposals, and entered into a contract for building 3,328 feet of drain, and for furnishing and laying 231,000 cubic yards of earth filling. '

The work projécted was the construction of drains, but the evidence shows clearly that in prosecuting such work there was a material departure from the enterprise originally inaugurated, in several respects, one of the most essential of which was the filling of vacant lots, not necessary to the construction of the drains, and hence not contemplated when the improvement was authorized by the public authorities. The unauthorized work is shown to have greatly increased the expense, and thereby added to the burden of the persons who are assessed therefor. In some of the localities which have been filled, no drains have been constructed, and hence it cannot be reasonably pretended that such filling was necessary to the prosecution of the work originally contemplated. It further appears that material wholly unsuitable was used in filling some portion of the territory, and it became necessary to remove it and supply the place with other material, which greatly increased the cost of the work. We are not to determine whether improving waste and unsightly land within the corporate limits is provident or desirable, at the expense of the owner, but rather, whether a public work can be projected under a statute for one purpose, and prosecuted, in part at least, for an entirely different purpose, at an increased expense, and the owner of land can be compelled to pay therefor against his will.

It is suggested that Van Buron consented to this work. We fail to discover the evidence of such consent. He testifies that he did not. Certainly mere silence cannot be construed into such an acquiescence in this wrongful exercise of authority, as to prevent him from resisting the payment of this assessment. It cannot be pretended, with any show of reason, that the public authorities were misled by the conduct of Van Burén, and they cannot be allowed to plead ignorance in regard to the extent of the authority which they possess. To hold Van Burén concluded by mere silence, under . the ' circumstances of this case, would seem to be rather a novel application of the doctrine of estoppel.

It is insisted further by the appellants, that the assessment could be vacated only on the ground of fraud, under chapter 313 of the Laws of 1874, and reliance is placed upon the case In the Matter of Mayer (50 N. Y., 504). That decision was made prior to the enactment of the statute under which this proceeding is instituted, and which adds a ground for vacating an assessment, namely, “ substantial error." The two statutes, chapter 312 and chapter 313 of the Laws of 1874, were enacted the same day, pertain to the same subject, and both are unrepealed. They are not inconsistent with each other, and can and should be construed together. The result, therefore, is that such an assessment may be assailed for fraud or substantial error. While these statutes are intended to secure to a party relief against an assessment which is objectionable, upon either of the grounds above specified, they are also intended to cure a class of irregularities and omissions which affect the form of the proceeding in making or collecting assessments, and in this respect the statutes are salutary, as they enable the court to disregard a class of errors which are merely formal or technical, and which do not materially affect the merits of the proceeding. We conclude that the decision of the Special Term was correct in holding that the errors alleged were substantial, and were sustained by the evidence, and therefore furnished ground for vacating the assessment in question. In the Matter of the Emigrant Industrial Savings Bank to vacate an assessment, decided by the Court of Appeals, but not reported, it is suggested by the counsel for the appellant that m case the assessment shall be held erroneous in some particulars, it may be preserved as to some of the items by a proper application to correct the same. Without expressing any opinion in regard to the regularity of such a proceeding, we are inclined to acquiesce in the' suggestion.

The order of the Special Term should be affirmed, with costs and disbursements, but without prejudice to an application by the appellant at the Special Term to correct the assessment, if it desires to make the same.

Beady, J.:

I rolunctantly concur in tbc result, in this proceeding, at which Justice Ingalls has arrived, but more on account of the effect of the decision in the People ex rel. Williams v. Haines (49 N. Y., 587) than from the supposed commission of any substantial error.

If the extra filling was necessary to accomplish the work, as it seems to have been, then it was incidental and would not be a substantial error within the meaning of'the statute or the decisions expressing its proper interpretation. The case of the Emigrant Industrial Savings Panic, to which Justice Ingalls refers, decided that work done without a contract, and, therefore, without original authority, presented a substantial error. It was not declared that an excess of expenditure from necessity to make a valid contract effective, created one. The questions involved are, I think, important, and the court of last resort will doubtless set the law at rest.

Present — Beady, P. J., and Ingalls, J.

Order affirmed, with costs and disbursements without prejudice to application by appellant at Special Term to correct assessments.