text:
    The Jersey City Insurance Company, Resp’t, v. Charles L. Archer, App’lt.

      (Supreme Court, General Term, First Department,

      Filed March 14, 1887.)

      1. Pleading—Reply—When necessary—Counter-claim.
    A reply is unnecessary when the defense sets up new matter simply not constituting a counter-claim.
    2. Bankruptcy—Discharge—Effect of—New promise.
    The discharge in bankruptcy operates upon all debts in existence at the time of filing the petition, whether due or to become due, but is not operative as to debts created after the filing of the petition. A new promise to take a debt out from the operation of the discharge must be clear, distinct and unequivocal.
    3. Bills and notes—Evidence of ownership.
    Possession of commercial paper, which is not restricted by endorsement, is evidence of ownership.
    Appeal from judgment entered after trial without a jury.

      Dennis McMahon, for def’t and resp’t; Treadwell C leveland, for pl’ff and resp’t.
   Van Brunt, P. J.

The grounds upon which the defendant claims a reversal of the judgment herein seem to be two in number.

First. That the plaintiffs have shown no sufficient title to the note in suit; and,

Second. Because the defendant was discharged by the proceedings in bankruptcy.

The answer made by the plaintiffs to the last objection is that the debt was taken out of the operation of the discharge because of a new promise to pay after petition filed.

The defendant replies that no sufficient new promise was ever made.

The defense of the discharge in bankruptcy required no reply upon the part of the plaintiff to enable it to show that the debt sued upon was not discharged. The defense was new matter not constituting a counter-claim, hence a reply was not necessary.

There seems to be no reason to doubt that if the debt in question is not taken out of the operation of the discharge by a new promise, the discharge was operative as to it.

_ The discharge operates upon all debts in existence at the time of filing the petition, whether due or to become due, but it is not operative as to debts created after the filing of the petition.

In the case of Allen & Co. v. Ferguson (18 Wall., 1), it is clearly assumed by the court that a promise made between petition and discharge takes a0 debt out of the operation of the discharge in the same manner as when such promise is made afterward, but the promise must be clear, distinct and unequivocal.

Promises to pay when able do not seem to comply with this rule, but Mr. Foote states that at one interview “ Mr. Archer asked me what the date of the note was and the amount of it. I had a memorandum of it and gave it to him, the amount and dáte. He said: ‘That is all right; that note I will pay, but the estate of Paulmier has been after me for another note that I don’t owe and I shall not pay it.’”

Here was a distinct and unequivocal promise to pay the note in suit. It is true that Mr. Archer denied having made any such promise, but the trial judge undoubtedly believed that such promise was made, and we see no reason for disturbing his conclusion.

The evidence seemed also to clearly establish that the plaintiffs were the lawful owners and holders of the note in suit.

The note in question was given to Mr. Paulmier, who was president of the plaintiffs, for rents belonging to his wife’s estate, of which he was the agent.

Upon Mr. Pauknier’s death, this note was found in a tin box in which the securities of the plaintiff were kept. It further appeared that Mr. Paulmier had a private box in the office of the plaintiff, in which were supposed to be kept his private papers, and which box was delivered to Mr. Paulmier’s personal representative, after his death.

There would seem to arise a presumption from these facts that the title to the note in question had been transferred to the plaintiff, which must prevail, until some evidence is given tending to impeach the title of the holder.

Possession of commercial paper which is not restricted by endorsement is evidence of ownership.

It seems, therefore, that the judgment was right and should be affirmed, with costs.

Bartlett and Macomber, JJ., concur.


source: Caselaw Access Project

author: Daniels, J.

license: Public Domain

text:
    James Lynch, late Sheriff, etc., Resp’t, v. Benjamin F. Butler, App’lt.

      (Supreme Court, General Term, First Department,

      Filed March 14, 1887.)

    1. Attachment—Sheriff’s fees—Code Pro. (1849), § 243.
    Under section 243, Code Pro. (1849), no fees other than those for the services actually performed were allowed unless some property was seized hy the sheriff.

      % Contracts—Interpretations of terms—Use of legal terms.
    • When legal terms are employed in an agreement they are to he construed, where the contrary does not appear to have heen the design, to he expressive only of their legal significance.

      Motion by defendant for a new trial on exceptions, ordered to be heard in the first instance at the general term.

      John E. Devlin, for def’t; Henry Thompson and James B. Cuming, for phff.
   Daniels, J.

The verdict was directed for the plaintiff for the sum of $885.87 with interest thereon, from the 7th of November, 1886. It was for the fees and compensation allowed to the plaintiff upon an attachment issued to him against the property of the defendant.

The attachment was issued on the 11th of November,, 1864, and according to the testimony of the person having it in charge under the sheriff, it was not otherwise served, than by delivering a copy of it, with a notice stating that the sheriff attached all property, debts, credits and effects, and all rights and shares of stock, with all interest and profits thereon, and all dividends therefrom, of the defendant in the possession or under the control of J. A. Stewart, assistant treasurer of the United States government, and? upon McCombey and Child of No. 11 Water street, and on Gideon J. Tucker, the surrogate of the county of New York. These copies were so served during the first half of the month of November, 1864, and while a certificate was required to be furnished by the persons on whom the service was made, of any rights, shares, debts, or other property of the defendant incapable of manual delivery, no such certificate. as a matter of fact appears to have been obtained by the sheriff, but the services under the attachment were completed by the delivery of these copies with the notice upon the persons served. The defendant, whose testimony was not contradicted, testified that he had no property in the hands of the assistant treasurer, or of the surrogate of the county of New York, at or after the time when the attachment was in this manner served and it was not contended that he had any property whatever in the possession or.under the control of McCombey and Child.

■ This testimony was further to the effect that moneys were on deposit with the sub-treasurer at the city of New York to the credit of the defendant, but that these were public moneys which were placed at his disposal as commander of the troops of the United States, and which he was empowered to use only in the public business; that it was not his money at all, but stood in his name as major-general commanding.

In February, 1866, the suit was settled by the delivery of $50,000 in gold certificates to the counsel for the plaintiff. These certificates were shown to have represented this sum of money appropriated by the defendant while he was in charge as an officer of the army of the city of New Orleans.

The assets of the bank were taken possession of by him, but were afterwards returned, and upon information being received that there were two kegs of specie which had been bricked behind the safe in the wall of the bank, just before the United States troops arrived in New Orleans, he ordered the wall to be opened and the specie removed. That was done apparently upon the claim that the money was forfeited to the United States, and it remained under the custody of the war department until a claim was made_ for it by the plaintiff, and the defendant applied for instructions requesting the department to take the burden of the suit and indemnify him, or to authorize him to settle it.

And upon a representation being made that the plaintiff had been a loyal man, the department declined to interfere, leaving the defendant to take care of himself, and he then delivered the gold certificates in satisfaction of the right of action. The suit was thereupon discontinued, without costs to either party, except that the legal fees of the sheriff were to be paid by the defendant, and an order of discontinuance to that effect was entered. After that an application was made to the judge who issued the attachment to adjust and settle the fees of the sheriff and his compensation for services under the attachment. It was conceded that the sheriff was entitled to the sum of $7.62 for his fees, and the judge added such a sum to the amount as made the total 8885.87, which he certified and allowed as reasonable and proper for his trouble and expenses in and all his services in the premises.

This certificate was held to be conclusive against the defendant on the trial, inasmuch as his counsel was heard before the judge at the time when the adjustment took place. The case of Berbeck v. Stafford (14 Abb. Pr., 285), was followed as sustaining this conclusion.

But in that case it did appear that the sheriff had taken property into his possession under the attachment, and the officer consequently had facts before him upon which he could justly make an allowance by way of compensation beyond the fees for the service of the attachment, while in this case it does not appear that any proof "of that fact was submitted to the judge. It appears on the contrary that the proof acted upon consisted only of an affidavit of the same person who was sworn as a witness upon the trial, describing in his evidence the services rendered by him under this attachment. And as there is no recital in the order to the contrary, it may be assumed that the witness stated no more in that affidavit than he did in his evidence given upon the trial. And it could not accordingly have appeared before the judge that any more had been done under the attachment, than to make the service of these three certified copies. The order or allowance of the judge does not profess to award to the sheriff anything by way of compensation for taking possession of, or holding any property, and it contains nothing inconsistent with the construction that the allowance was made for the services alone which this witness described» and detailed as having been rendered under the attachment. For those services specified fees were provided by law. At the time when they were rendered and the right of the sheriff to fees for the services accrued (section 243 of the Code of Procedure), as it was enacted in 1849 was in force, and that provided that the sheriff should be entitled for services under the attachment to the same fees and compensation, and the same disbursements, as were allowed by law for like services and disbursements under the provisions of chapter 5, title 1 and part 2 of the Revised Statutes. This obviously related to so much of chapter 5, as prescribed the duties of the sheriff under attachments against absconding, concealed and non-resident debtors. And by the provisions of the statute prescribing the fees for those services they were particularly designated, and in addition to that "it was further declared that the officer should be allowed, “ such additional compensation for his trouble and expenses in taking possession of, and preserving the property, attached as the officer issuing the warrant shall certify to be reasonable.” „ 3 R. S. (6th ed.), 914, subd. 10, § 35.

This sub-division of the statute distinguishes between the services performed in the service of the attachment itself, and in. taking possession of and preserving the property attached. And so did section 243 of the Code of Procedure for that provided for the recovery by the sheriff of fees, and also of compensation for the further services which he might render. In the present instance no such additional services were rendered by the officer, for no property, as a matter of fact, was attached, neither was any taken possession of or preserved by him, and it is to be presumed from the evidence of the witness who served the attachment, that no proóf could have been submitted to the judge establishing the fact that property was attached or taken possession of by the sheriff. Neither does the certificate of the judge recite, or in any manner refer to, the fact that any such proof had been produced, and in its absence the judge had no.jurisdiction whatever to allow to the sheriff compensation for such an unperformed service.

To supply jurisdiction over this subject some proof was required to be given indicating the fact to be that property had been seized under the attachment and taken possession of by the officer, for as much as that is requisite to supply jurisdiction in proceedings of a judicial character. Staples v. Fairchild, 3 Com. 41, 46.

And whether jurisdiction over the subject-matter has been acquired is a fact which may be inquired into in any court where the proceedings are relied upon and brought up for further consideration and action. Craig v. Andes, 93 N. Y., 405, 410.

The judge could not arbitrarily make this allowance to the plaintiff, he could do so only under the authority of the law.

This authority was contained in the section of the Code of Procedure which has already been mentioned, for the services were rendered and completed before the amendment of 1865 was adopted, allowing the sheriff poundage on the amount where a settlement of the suit should take place. Besides this the allowance of poundage was no part of the order of adjustment of the judge, and was not a matter committed to his authority, by the amendment of 1849, but what he had, and all that he had authority over, was.the compensation to be allowed for taking possession of and preserving property attached. And as none had been, attached, the sheriff was entitled only to the fees prescribed by law for the services which he rendered, and the law governing those fees was this section Of the Code which has been mentioned. Supervisors, etc. v. Briggs, 3 Den., 173; Porter v. Cobb, 25 Hun, 184; Woodruff v. Fire Ins. Co., 90 N. Y., 521.

Beyond that, the stipulation ■ upon which the action was discontinued and the order following it, obligated the defendant to pay no more than, “the legal fees of the sheriff.” This was the extent of the liability entered into by him, and the adjustment made in favor of the sheriff by the judge could impose no further liability upon him. Both the stipulation, and the order following it, had been expressed in such terms as to indicate a design to exclude compensation for taking possession of and preserving property attached, by restricting the amount to be paid to the legal fees. These are significant terms, and indicate the compensation to be received by the sheriff, to be the fees for the services actually rendered by him, excluding the idea of compensation for taking possession of, or preserving attached property. And they are to be construed and applied in view of the circumstances existing at the time when these parties employed them. Knapp v. Warner, 57 N. Y., 668; Coleman Beach, 97 id., 545.

They are to be assumed, therefore, to have been employed by the parties, with the knowledge of the fact that the extent of the sheriff’s services, was the delivery of these three copies of the attachment. And with that understanding, it could not have been intended on either side, that the defendant by the employment of these words, should subject himself to more than the payment of the fees of the sheriff for making the service which he did of the attachment. The language used too, had peculiar legal significance, and when legal terms are employed in an agreement they are to be construed, where the contrary does not appear to have been the design, to be expressive only of their legal significance. 2 Parsons on Contracts (6th ed.), 498.

The obligation of the defendant was not to pay what might be certified by way of compensation by the judge, but to pay only the legal fees of the sheriff. His legal fees so far as he rendered services were agreed to $7.62, and as they could amount in no view to more than that, this with interest, was the limit of the defendant’s liability in the action. Neither of the authorities collected and cited in favor of the plaintiff sustains any further, or additional liability of the defendant, under this stipulation and order.

The verdict should therefore, be set aside, and a new trial ordered, with costs to abide the event.

Van Brunt, P. J., and Brady, J., concur.


author: Finch, J.

text:
    Robert Taylor, Resp’t, v. City of Yonkers, App’lt.

      (Court of Appeals,

      Filed April 19, 1887.)

    1. Municipal Corporation—Negligence—Snow and ice on sidewalk. •
    It is.not expected that after a snow storm a municipal corporation shall itself forthwith employ laborers to clean all the walks from snow; it may impose that duty upon the citizens, but such regulation does not relieve the municipality from responsibility. It is entitled, however, to a reasonable time within which to perform the duty in the manner permitted, and is not guilty of negligence if, observing that the work is being generally done, it awaits for a reasonable period the action of the citizens,
    2. Same.
    But when such reasonable time has been given, the corporation must compel the adjoining owners or occupants to act or do the work itself, and if it suffers the obstruction to remain thereafter with notice, actual or constructive, it may become responsible for injuries resulting.
    3. Same—Coating op ice on walk.
    Where a fall of rain, or the melting of adjoining snow, is suddenly followed by severe cold, which covers everything with a film of ice, making the walks slippery and dangerous, the municipality is not negligent for awaiting a thaw so that the ice can be removed. And it is not responsible for the omission of householders to comply with its requirements that usnes, etc., shall be sprinkled on the ice. It is not bound to put such foreign substances on the ice

      4. Same
    But where, for two years, the action of rain and frost had thrown upon a walk, sand, gravel and stones from the adjoining bank, until the flagging was entirely covered by it, and a new and sloping grade formed, and the snow on the walk was never removed, but was trampled down by travel, and converted into ice Reid, that these facts tended to establish negligence on the part of the city.

      Appeal from a judgment of supreme court, general term, second department, affirming a judgment for plaintiff for $1,420, and order denying new trial.

      Joseph F. Daly, for app’lt; John F. Brennan, for resp’t.

       Reversing 37 Hun, 643, mem.

   Finch, J.

This case was submitted to the jury under instructions that a municipal corporation is bound to keep its sidewalks safe and convenient for the passage of the public, so far as reasonable diligence and the possession of adequate resources will allow; and the application of this rule to conditions resulting from the rigors and changes of a northern winter, and to two emergencies which frequently occur, was very fairly and justly discussed and limited. It often happens that in a single day or night every street and sidewalk in the city or village is covered with a heavy fall of snow. It is not expected, and cannot be required, that the corporation shall itself forthwith employ laborers to clean all the walks, and so accomplish the object by a slow and expensive process, when the result may be effected more swiftly and easily by imposing that duty upon the citizens. Each can promptly, and without unreasonable burden, clean the snow from his ovm premises, and the authorities may justly and lawfully require that to be done under the jurisdiction conferred by their charters. But, though the municipality makes the necessary regulation, it is not thereby relieved from responsibility. The duty remains, and it must therefore see to it that its ordinance is obeyed. It is entitled, however, to a reasonable time within which to perform the duty in the manner permitted, and is not guilty of negligence if, observing that the vrork is being generally done, it awaits for a reasonable period the action of the citizens. But, when such reasonable time has been given, the corporation must compel the adjoining owners or occupants to act, or do 'the work itself; and if it suffers the obstruction to remain thereafter, with notice, actual or constructive, of its existence, it may become responsible for injuries resulting. Another and different emergency sometimes occurs, and was referred to in the charge to the jury. When the streets have been wholly or partially cleaned, it often happens that a fall of rain, or the melting of adjoining snow, is suddenly followed by a severe cold, which covers everything with a film or layer of ice, and makes the walk slippery and dangerous. This frozen surface it is practically impossible to remove until a thaw comes which remedies the evil. The municipality is not negligent for awaiting that result. It may and should require householders, when the danger is great, to sprinkle upon the surface ashes or sand or the like ás a measure of prudence and precaution, but is not responsible for their omission. It is no more bound to put upon the ice, which it cannot reasonably remove, such foreign material, than to cover it with boards. The emergency is one which is common to every street in the village or city, and which the corporation is powerless to combat. Usually it lasts but a few days, and the corporate authorities may await, without negligence, a change of temperature, which will remove the danger.

Both of these emergencies are shown to have existed in the present case, and as to both the learned trial judge gave to the defendant the full benefit of the rule as we have stated it. But there were further facts. The sidewalk along Buena Vista avenue, where it passed an unoccupied lot, was bounded on its inner line by an unprotected bank of earth. For two years the action of rain and frost had thrown upon the walk sand and gravel and stones from the bank, until the flagging was entirely covered by it, and a new and sloping grade substituted for the one adopted. The sand on the inner line was about eight inches in depth, growing less towards the curb, where it was about one inch. Mixed in with this were stones, some of which were as large as apples. When the winter came this walk was covered with snow, which was never removed. Before the accident, the snow-fall had been heavy, but it was evidently not recent; for upon this walk it had been trampled down by travel, and by freezing and thawing converted into ice. These facts tended to establish negligence on the part of the city. If the slope of the walk was not dangerous in the summer weather, it might become so when coated with ice in the winter, and those having the care of the highway were very blind if they did not foresee the possible danger. No one, however, appears to have been injured by it when simply in this condition, for the reason, probably, that sand was continually washed upon it from the adjoining bank. But this protection disappeared before the plaintiff was injured. On the night preceding, rain fell, which washed the sand from the ice, and then froze, covering everything with a new surface, and making the whole city slippery and dangerous for travel. That was just as true of walks cleaned as of those not cleaned, and it may even be the fact that the latter, when paved, became, by reason of their smoothness, the most dangerous of all. That such was the situation was very strongly shown by the conduct of plaintiff himself. He boarded in a house adjoining the vacant lot of which we have spoken, and standing so far above the grade of the street that ten steps led down to the sidewalk in front. On coming out in the morning with a companion, and observing the situation, he hesitated to come down his own steps to the sidewalk, although clear of snow, as we may fairly assume, and chose rather, as a measure of safety, to take another route. He went through the picket fence at the side, and onto the vacant lot, which was covered with snow, and thence down to the sidewalk, which he essayed to cross, intending to go to his work through the middle of the street and on the roadway. His conduct pictures the situation perfectly. He stepped on the new ice surface, just formed, and for the existence of which the city was in no respect responsible. Had that been the whole of the case, a recovery would have been impossible. But this new ice formed on a slope, having a fall towards the curb of six or seven inches in ten feet, which the city had negligently suffered to remain. If that slope was one concurring cause of the fall, without which the accident would not have happened, the city is liable. We have stated the rule to be that “when two.causes combine to produce an injury to a traveler upon a highway, both of which are in their nature proximate, the one being a culpable defect in a highway, and the other some occurrence for which neither party is responsible, the municipality is liable, provided the injury would not have been sustained but for such defect.” Ring v. City of Cohoes, 77 N. Y., 88. Now, the jury were plainly charged that the new ice recently formed furnished no ground of negligence on the part of the city, and it necessarily followed that the jury found the rslope of the walk to have been a concurrent cause, without which the accident would not have happened.

The only remaining inquiry is whether there were any facts which permitted that inference,- or whether there were none, and the conclusion was mere guess and speculation. The fact proved was that the plaintiff slipped on the ice lying on a slope. The inference, it is claimed, is natural and logical, and sustained' by common observation and experience, that both of the conditions entered into the accident as proximate causes. But no one can say that, if the new ice had spread over a level, the plaintiff would not have fallen; and there is nothing in the case pointing to the slope as a concurrent cause, beyond the bare fact that it existed, and so nothing to redeem the inference sought from the domain of mere guess and speculation. The question involved has been quite earnestly debated in other states, where it arose under statutes requiring towns to keep the streets safe and convenient. In Maine and Massachusetts it is held that if, besides the defect in the way, there is also another proximate cause of the injury contributing directly to the result, for which neither of the parties is in fault, the town is not liable. Moore v. Abbot, 32 Me., 46; Moulton v. Sanford, 51 id., 127; Marble v. Worcester, 4 Gray, 395; Billings v Worcester, 102 Mass., 329. These rulings are based largely upon two grounds: That the town is liable for the defect alone, and that the proportion of injury due to that cause is impossible to be ascertained. A contrary rule is held in Vermont and New Hampshire. Hunt v. Pownal, 9 Vt., 411; Winship v. Enfield, 42 N. H., 197. We have already stated the rule to be in this state that the defect, even when a concurring cause, must be such that without its operation the accident would not have happened. Where the defect is the sole explanation of the injury, there is no difficulty; but, where there is also another for which no one is responsible, we have held that “the plaintiff must fail if his evidence does not show that the damage was produced by the former cause” (Searles v. Manhattan Railway Co., 101 N. Y., 661); and we added that he must fail also if it is just as probable that the injury came from one cause as the other, because he is bound to make out his case by a preponderance of evidence, and the jury must not be left to a mere conjecture, or to act upon a bare possibility. In this case that rule was violated. The plaintiff slipped upon the ice. That by itself was a sufficient, certain, and operating cause of the fall. No other explanation is needed to account for what happened. It is possible that the slope.of the walk had something to do with it. It is equally possible that it did not. There is not a particle of proof that it did. To affirm it is a pure guess and an absolute speculation. Are we to send it to a jury for them to imagine what might have been? The great balance of probability is that the ice was the efficient cause. There is no probability, not wholly speculative, that the slope was also such. Its descent was slight—not quite an inch in a foot—and not more than constantly occurs in the streets of a city. No knowledge or intelligence can determine or ascertain that such a slope had any part or share in the injury; and to send the question to the jury is simply to let them guess at it, and then upon that • guess to sustain a verdict for damages. I am quite willing to hold cities and villages to a reasonable performance of duties; but I am not willing to make them practically insurers by founding their liability upon mere possibilities.

For these reasons I think the ‘plaintiff should fail, and the motion for a nonsuit should have been granted.

Judgment reversed, new trial granted; costs to abide event.

All concur, except Andrews, J., not voting.


author: Ruger, Ch. J.

text:
    Mayor, etc., of New York, Resp’t, v. Nathaniel Sands, App’lt.

      (Court of Appeals,

      Filed April 19, 1887.)

    1. Municipal corporations—New York city—Payments of city moneys —Commission for placing loan—Laws 1857, chap. 590; 1870, chap. 190.
    Laws of 1857, chapter 590, and of 1870, chapter 190, require that all moneys drawn from the treasury of the city of New York should be upon vouchers, examined and allowed by the auditor and approved by the ■comptroller, and that no money should be drawn therefrom except on a warrant by the comptroller, countersigned by the mayor and clerk. Connolly, as comptroller, under chapter 323, of the Laws of 1871, which authorized him to create the ■ consolidated stock of the city of New York,” contracted with defendant, who was a commissioner of taxes, to dispose of said stock, which the latter did, and Connolly paid him by indorsing to him a check received in payment for a portion of said stock. Held, that the comptroller had the authority to do this under the broad language of the act of 1871; that the necessity of incurring some expenses in the negotiations of the loan was necessary in order to make the grant of power given by said act effectual, and that no right of action exists against the defendant in respect to this transaction, except upon proof of collusion between him and Connolly to defraud the county out of the money represented by the check.
    8. Same—City employee may work for county —Laws 1870, chap. 137, § 115.
    It is competent for a city officer to render services to the county, or any other employer outside of the city, and charge and receive a compensation for such service
    Appeal from judgment of supreme court, general term, first department, affirming judgment for plaintiff.

      Luther R. Marsh and Aaron J. Vanderpoel for app’lt; Charles P. Miller, for resp’t.

       Reversing 39 Hun, 519.

   Ruger, Ch. J.

This action was commenced about the year 1873, in the name of the board of supervisors of the county of New York, to recover from the defendant the value of a certain check alleged to have been misappropriated by the comptroller of New York and delivered to the defendant.

It was further alleged in the complaint that one Connolly was comptroller, and the defendant commissioner of taxes for said city, and that Connolly, having received the check in question for the use and benefit of the county, willfully and corruptly, and with .intent to cheat and defraud the county, indorsed and transferred it to the defendant, who wrongfully converted it to his own use, with like intent and purpose, and that after demand duly made upon said defendant for the same he neglected and refused to repay the moneys received thereon to the plaintiff.

The defendant, answering, denied all of the allegations of the complaint except those specifically admitted, and after. admitting the official character of himself and Connolly and the receipt of the check, alleged that the same was duly indorsed and delivered to him by Connolly, in payment for services rendered to Connolly, as comptroller, in effecting a loan of money for the city and county of New York under a contract previously made between them.

The complaint did not allege any want of power in Connolly to make such contract, or to transfer the check, or any illegality in its delivery to defendant, except such as might be inferred from the charge that it was corruptly and fraudulently * done.

After the passage of chapter 904 of the Laws of 1874, consolidating the government of the city and county of New York, the mayor and commonalty of the city , were substituted as plaintiff in place of the board of supervisors.

On the trial" a verdict was directed by the trial court for the plaintiff, but the grounds of the decision do not appear in the record. The defendant duly excepted to the ruling of the court. The general term affirmed the judgment, upon the ground that the act of the comptroller, in paying out the check, was contrary to the provisions of chapter 590 of the Laws of 1857, and chapter 190 of the Laws of 1870, which required that all moneys drawn from the treasury by authority of the board of supervisors should be upon vouchers, examined and allowed by the auditor and approved by the comptroller, and no money should be drawn therefrom except on a warrant drawn by the comptroller, countersigned by the mayor and clerk of the board.

The court, assuming that the contract with Connolly was ■ a lawful one, and that upon the performance of the services-he was entitled to compensation, held that his claim was-then nothing more or less than a claim against the county which should be ascertained, adjusted and paid in the mode required by law, and that the receipt and use of the check, by defendant, with knowledge of its illegal use by Connolly, was a fraudulent misappropriation of the moneys represented by it which subjected him to an action to recover the-same as for a fraudulent conversion thereof.

There was no attempt upon the trial to show any actual fraud intended, either by Connolly or the defendant; but the case was rested altogether upon a fraud inferable from the alleged illegality of the transaction. The undisputed evidence showed that the draft was paid to the defendant by Connolly in good faith, in satisfaction of a claim held by him against Connolly, as comptroller, for services rendered in effecting a loan of money for the county upon its bonds, to the amount of $15,000,000. The proof was undisputed that the defendant negotiated the loan, and that it was a favorable one; that the commission charged was fair and reasonable, and that the defendant was possessed of sufficient financial ability and influence to make his assistance valuable and enable him to obtain the loan upon terms advantageous to the county.

It was further shown that the services were rendered in pursuance of a. contract previously made with the comptroller, to the effect that he should have one-half of one per cent for effecting such loan, provided it was made upon favorable terms and without other expense to the county. The transaction between Connolly and the defendant sprang out of the effort of the former to execute the power conferred and duty imposed upon him by chapter 323, of the Laws of 1871, which authorized and empowered the comptroller of New York to create a public fund or stock, to be denominated 11 consolidated stock of the county of New York,” and by which any holder of the present stock of the county of New York, or bonds of the said county of New York, was authorized to exchange the same for said consolidated stock, upon such terms and conditions as should be determined and offered by said comptroller. Such stock was also authorized to be issued to pay off and cancel any bonds or stock of said county falling due in the year 1871, and also to meet the requisitions on the county of New York by the state for the payment of the bounty debt in that year. Such stock was to be in the fprm designated by the comptroller, and signed by the comptroller and mayor of the city and sealed with the seal of the board of supervisors of the county, and attested by the clerk of said board. All stock of the county of New York thereafter issued was to be known as “consolidated stock of the county of New York ” and issued under the authority of that act. In pursuance of the authority thus conferred, the comptroller issued the bonds in question and procured them, through the assistance of the defendant, to be negotiated with A. Belmont & Co._, at a premium of 4¿- per cent.

No question is made as to the legality of this issue, or but that the whole proceeds of the bonds, including premiums, excepting the check in question, were applied to the purposes of the county or paid over to its treasurer by the comptroller.

It would be difficult to conceive of a grant of power conferred in broader or more comprehensive language, and which could be less restricted by conditions and limitations upon an agent’s authority. No limit is imposed upon the amount of bonds to be issued, except that implied from the use to which they were to be devoted in the retirement and payment of existing obligations of the county; and no restriction as to the terms upon which they were to be disposed of, or the amount of the expenses to be incurred in their preparation, negotiation and transfer is found in the act. The comptroller was broadly charged with the duty of creating a public fund or stock to be denominated “ Consolidated .stock of the County of New York,” and whatever power was necessary to enable him to perform this duty was necessarily conferred upon him by the act. Whether this was a wise or prudent grant of power, or whether in the careful exercise of it the comptroller was enabled to commit abuses or frauds upon the people of the county with,impunity is not a subject for our consideration. We find the law upon the statute book, and it is subject to the same rules of construction as other statutes thus appearing. Citizens of the state, having occasion to deal with the comptroller in reference to the subject matter of the act, had the right to rely upon its provisions and the authority apparently conferred upon him to bind the fund or principals represented by him.

It is obvious, from the language of the act as well as the evidence in the case, that heavy liabilities of the county were becoming payable in the immediate future, and that large amounts would be required to meet its obligations, and that it was considered desirable not only to raise the money required without delay, but also that all the county’s outstanding indebtedness should be funded at the same time and put upon a uniform basis as to the time of its redemption and its rate of interest.

The occasion was exceptional and extraordinary, and large and apparently almost unlimited power was therefore given to the comptroller to accomplish this object. Whenever money was required to satisfy the indebtedness of the county he was not only authorized but was charged with the duty of providing it by a sale of the bonds of the county; and whenever an exchange of the consolidated stock could be effected for the outstanding stock or bonds of the county, he was authorized to do it upon such terms and conditions as should be determined by himself. It was contemplated that enormous sums of money should pass into his hands; and its application and security were entrusted wholly to the judgment, discretion and integrity of the comptroller. In the performance of the duties cast upon him he was made independent of all other county authority or supervision, and was broadly charged with the responsibility of providing funds not only to meet the current and maturing debt of the county, but to fund all of its outstanding obligations. The moneys to be raised on the bonds, whether in premiums or principal, were undoubtedly the property of the county; and the comptroller’s duty required him, except so far as they might be required for the legitimate purposes of the act, to account to the treasurer of the county for the proceeds.

It is a matter of public history, of which courts will take judicial notice, that in the sale of bonds and negotiation for loans in behalf of states, municipalities and governments, the services of their own fiscal agents are usually, if not invariably, supplemented by the employment of bankers, brokers and other financial agencies, to aid in raising moneys for such public purposes. During the late war the federal government raised large sums by the issue and sale of treasury notes and bonds, which it would have been practically difficult if not impossible to do upon favorable terms but for the assistance rendered by extraneous financial agencies employed and paid by the secretary of the treasury. Most if not all of the acts authorizing such loans, contemplated such services and authorized the secretary to pay for them, sometimes at a fixed rate, sometimes at rates not exceeding a certain limit, and often according to his judgment and discretion. Appropriations were sometimes but not always made in the acts for the payment of these expenses. See 12 U. S. Stat. at L. p. 129, chap. 5, Laws 1861, p. 345, chap. 33, Laws 1362; p. 709, chap. 73, Laws 1863; voL 15, p. 13, chap. 13, Laws 1874, p. 465, chap. 177, Laws 1865.

It is a matter of common knowledge that such loans in all countries of the world are usually negotiated through agencies outside of the regular financial authorities of the government making the loans. Whether their employment in the case in hand was wise and prudent, or perhaps even indispensable to the accomplishment of the object intended by the statute, cannot be determined as a question of law, for the statute gave the comptroller power to determine that question in his own discretion, subject only to the obligation to do so honestly and in good faith.

Under these circumstances - the question is presented as to what were the duties of the comptroller and the extent of his power in carrying out the law.

It is a well established principle that statutes containing grants _ of power shall be construed so as to include the authority to do all things necessary to make the object of the grant effectual, and to enable the donee of the power to accomplish the expressed purpose of the act.

Domat expresses the idea as follows: “All laws necessarily bear with them all the powers or incidents necessary to carry out their intention.” Sedg. Stat. Law, p. 245.

Sedgwick says: “ When a statute commands an act to be done it authorizes all that is necessary for its performance.” Sedgwick, 228. Potter’s Dwarris states the rule to be “In statutes incidents are always supplied by intendment; in other words, whenever a power is given by a statute, everything to the making of it effectual is given by implication; for the maxim is ‘ Quando lex aliquid concedit, concederé videtur el id per quod devenitur ad illud.’

The rule stated has been frequently referred to and applied in the reports of this state. It was stated by Judge Ruggles, in Stief v. Hart (1 N. Y., 23,) as follows: “Whenever the law requires an act to be done it authorizes the agent to do what is necessary to accomplish it in the mode pointed out for its performance.” In this case power in the sheriff to take goods out of the hands of a pledgee, for the purpose of a sale on execution, was implied from the authority given him to levy upon and sell the interest of the pledgor in such goods.

In People v. Hicks (15 Barb., 160,) it was held that a statute giving power to a magistrate to examine such witnesses as might be produced before him authorized him to issue subpoenas for such witnesses and to compel their attendance by the usual process of the court. Judge Edwards, giving the opinion of the court, says: “In an anonymous case, which is reported by Lord Coke (12 Coke, Rep. 130), he says that on a motion made by him before the justices of the king’s bench, it was unanimously resolved ‘ that when the statute gave power to justices of the peace to require any person or persons to take the oath the law impliedly gave them power to make a warrant to have the body before them.’ ” Judge Roosevelt also says “that the grant of an express power carries with it, by necessary implication, every other power necessary and proper to the execution of the power expressly granted.” 1 Kent, Com., 404.

The existence of the power in question is so indisputable that it is unnecessary to pursue the discussion of the question further; and it is material only upon this point to add a few observations in relation to the necessity of paying the necessary expenses of the loan to enable the comptroller to carry out the provisions of the law. ( Certainly the necessity of raising the money provided for by the act to accomplish its purposes cannot be denied. The members of the legislature were the sole judges of this necessity; and having themselves determined that question, it was the duty of the comptroller to execute the mandate of the law. Whatever he judged' it necessary in good faith to do in carrying out its purpose it was lawful for him to do, provided he did not transgress any positive provision of law or violate the purpose or spirit of the act. The statute conferred upon him large discretionary powers in carrying out its provisions; and he could not be made hable for any errors of judgment or abuse of his powers, unless they were fraudulently or illegally performed.

The necessity of incurring some expenses in the negotiation of the loan and placing the bonds authorized to be issued is, in view of the universal practice in such cases, too plain to admit of dispute; and it is obvious that unless the comptroller was vested with power to pay them the whole purpose of the act might be defeated at its outset.

The comptroller had no general authority to contract a debt for such purpose on behalf of the county, and no special authority except such as is inferable from the act in question. It is also plain that if he could not obtain the assistance required or the services necessary by a pledge of the credit of the county, subjecting the financial agent to the risk of an unfavorable consideration of his claims by the board of supervisors or other auditing officers of the county, he would be obliged to adopt other means to ■ accomplish the object intended. Can it be reasonably said that the power to pay expenses from the fund raised was any more detrimental to the interests of the county than the power to pledge its credit? If the possession of one power is to be inferred from the act, is there not equal reason to say that if its exercise is required for the purposes of the law, the other power was equally inferable ? They both rest upon the same principle, and are governed by the same rule; and one power is as equally .open to abuse as the other.

The comptroller was directed to create a public fund, and his power was commensurate with the requirements of the task imposed upon him. It is unreasonable to say that in imposing the duty of raising the money in question upon him the' legislature intended to hamper and restrict his performance of it by denying to him the means necessary to perform it, or that its scheme was subject to be defeated by the neglect or refusal of the county officers to provide means to execute its provisions. The act contains no reference to the intervention or co-operation of any county officers in its execution; and it is repugnant to establish principles of construction to import into its provisions requirements of prior enactments not pertinent thereto, and which would be plainly destructive of its purposes.

Such was the view taken of the act by the board of apportionment organized under chapter, 583, Laws of 1871, as expressed in resolutions adopted May 9, 1871. Such board, in authorizing an issue of about $9,000,000 of the consolidated stock of the county under said act to meet a portion of its indebtedness, provided that “ the expenses incurred in providing for the issue of said stock should be paid out of the premiums.received for the same.”

And in the same act, in providing for a hoard of apportionment, whose general authority over the finances of the county was intended to supersede that of the board of supervisors, it expressly exempted the comptroller, in the exercise of the powers conferred upon him by chapter 323 of the act of 1871, from the authority and control of the board of apportionment, and from the prohibition therein contained against the' incurring of any liability by any officers of the county of New York exceeding the appropriation made for such purposes.' Laws 1871, sec. 10, chap. 585.

The statutes referred to in the opinion of the general term seem to us to have no application to the subject. They provide among other things that no moneys shall be drawn from the treasury except upon previous applications for that purpose, and in terms apply only to moneys already placed in the treasury of the county and disbursable in the regular and customary administration of its affairs upon the authority of the board of supervisors. The check in question never reached the treasury of the county; and, although it may have been the property of the county, it was still in the hands of Connolly, subject to the purposes of the act by which he acquired its possession. He was by such act made the agent of the county, with power to disburse so much of its funds in his hands as was necessary to carry out the purpose of the law by which he was appointed.

We are, therefore, of the opinion that the courts below erred in holding that the comptroller had no authority to pay out the check; and we are further of the opinion that no cause of action was proved against the defendant. We think that no right of action exists against the defendant in respect to this transaction, except upon proof of collusion between him and Connolly to defraud the county of the money represented by the check.

We deem it unnecessary to refer at length to a comtemporaneous act, similar in form to the one under discussion, authorizing the comptroller to create a public fund or stock, to be denominated ‘ ‘ consolidated stock of the city of New York,” as its introduction would tend only to complicate the questions discussed. The complaint alleges that the check was the property of the county; and the proof tends to establish that it was received in payment of a part of the premium due upon a loan to the county. The city could not, therefore, have had any legal interest in its disposition or recovery.

It is claimed by the respondent that, inasmuch as the contract between Connolly and Sands provided for the pay ment of the same commission for negotiating city as well as county bonds, the defendant came under the provision of section 115 of chapter 137 of the Laws of 1870, prohibiting city officers from being directly or indirectly interested in any contract, work or business, or the sale of any article the expense, price or consideration of which is paid from the city treasury. The proof fails to show that Sands rendered any services to the city or made any claim against it in respect to this check. If the contract, so far as it provided for payment of services rendered the city, was void, we think it was divisible and could be enforced so far as it was authorized by law. The parties in fact did separate it, and no performance was attempted except in relation to the county loan.

We think it was competent for a city officer to render services to the county or any other employer outside of the city, and charge and receive a compensation for such services.

We have examined other objections made to the right of Sands to retain the compensation in question, arising out of the fact that he was a city officer, but think the authorities upon which they are based too obviously inapplicable to call for special discussion.

There is no evidence in the case upon which the plaintiff showed any right to recover; and it was, therefore, error for the trial court to direct a verdict in its favor.

The judgments of the courts below should, therefore, be reversed and a new trial ordered, with costs to abide the result.

All concur except Andrews and Finch, JJ., dissenting.


author: Ruger, 0. J.

text:
    Marie A. Witthaus, App’lt and Resp’t, v. Frederick C. C. Schack, Resp’t and App’lt.

      (Court of Appeals,

      Filed April 19, 1887.)

    Evidence—Code Civ. Pro., § 829—Husband and wife—Dower.
    Plaintiff’s husband and plaintiff executed a deed of real estate to defendant to secure certain debts owing by "the former to several persons named in the deed. After the death of her husband plaintiff brings this action to set aside the deed as obtained by fraud, and she was offered as a witness to prove such fraud. Selcl, that plaintiff had no estate in the lands of her husband during his life which she could convey to another: that she was incompetent, under Code Civil Procedure, section 829, to testify to personal transactions and communications between herself and husband in reference to such deed.
    Appeal by both parties from judgment of supreme court, general term, fourth department, in favor of plaintiff.

      John E. Burrill, for pl’ff; Lewis Sanders, for def’t.

       Reversing 38 Hun, 560, mem.

   Ruger, 0. J.

This action was brought by the plaintiff, as the widow of Rudolph A. Witthaus, to cancel and annul a deed of several parcels of land in the city of New York, so far as it affected her right of dower in the parcels lying below Fifty-ninth street, upon the ground that her signature thereto had been obtained by the false and fraudulent representations of her husband. The proof showed that on December 23, 1876, Rudolph A. Witthaus and the plaintiff, executed and duly acknowledged a deed of ten separate parcels of real estate, situate in the city of New York, lying partly above and partly below Fifty-ninth street, to Frederick Schack, the defendant, in fee to secure the payment of certain debts owing by Witthaus to the several persons named in the deed. It was stated therein that it was upon trust to sell and convey the land, to produce the best price that could be realized from the same, and apply the moneys ■ realized to the payment of said debts pro rata, according,to their respective amounts, The proof further showed that the deed was delivered to the defendant on the,same day, and .he immediately entered upon the possession of the property, and continued to sell, convey and rent the same, until the commencement of this action, in January, 1879. Rudolph A. Witthaus died by his own hand, on March 19, 1877.

Upon the trial the plaintiff was herself offered as a witness to prove the fraudulent representations alleged, and upon the faith of which she claims that she was induced to sign and acknowledge the deed in question. Upon being asked to relate the conversation occurring between herself and her husband in which the representations occurred, the defendant’s counsel objected to the competency of her evidence, upon the ground that it constituted personal communications between the defendant’s deceased grantor and the witness, which were inadmissible under the Code. The objection was overruled by the trial judge, and the defendant excepted. The witness thereupon gave evidence tending to show that on the morning of December 23d, her husband requested her to join him in a deed of so much of his property in the city of New York as was situated north of Fifty-ninth street, to Schack, the defendant, for the purpose of securing several persons to whom he was indebted. She assented to this proposition, and further testified that when, later in the day, the deed was presented to her for execution and acknowledgment, her husband said that it was prepared in accordance with the agreement made between them in the morning. The evidence thus given by the plaintiff was the only proof offered as to the fraudulent representations alleged by the plaintiff.

The only question which we consider it necessary to discuss relates to the competency of this evidence under the Code of Civil Procedure. The provision of the Code, so far as it is applicable to the question in hand, may be abbreviated as follows:

“ Section 829. Upon the trial of an action * * * a party or person interested in the event * * * shall not be examined as a witness in his own behalf or interest, * * against * * * a person deriving his title or interest from, through, or under a deceased person, by assignment or otherwise, concerning a personal transaction or communication between the witness and the deceased person.”

It is not disputed that the plaintiff is a party and interested in the event of the action, or that the subject of the inquiry related to a personal communication between the deceased person and the witness; but it is claimed, as stated in respondent’s points, that “ the plaintiff was not an incompetent witness under section 829 of the Code, because the title or interest to be affected by the action was not derived by defendant from plaintiff’s husband, but from plaintiff.” The plaintiff thus seeks to stand upon the letter of the statute, and to claim exemption from its provisions by reason of the alleged creation of a contingent estate intermediate the seizin of the husband and the execution of the deed, which it is claimed suspended the husband’s title to a part of his property, and created a new estate, transferable only by a conveyance from the wife. The error in this proposition consists in the assumption that the wife has an estate in the lands of her husband during his life, which she can convey to another.

The settled theory of the law, as to the nature of an inchoate right of dower, is that it is not an estate or interest in hand at all, but is a contingent claim arising, not out of contract, but as an institution of law, constituting a mere chose in action, incapable of transfer by grant or conveyance, but susceptible only during its inchoate state of ex-tinguishment. By force of the statute, this is effected by the act of the wife in joining with her husband in the execution of the deed of the land. Such deed, so far as the wife is concerned, operates as a release or satisfaction of the interest, and not as a conveyance, and removes an incumbrance, instead of transfering an interest or estate. Her right may also be forfeited by her adultery, and thus extinguished and barred by jointure or pecuniary provision.

It was said by Judge Gardiner, in Lawrence v. Miller (2 N. Y., 245), that, before assignment, the widow has no estate in the lands of her husband. Her right is a mere chose in action, which cannot be sold upon execution at law; until that time it is strictly a claim, ” (affirmed in Lawrence v. Brown, 5 N. Y., 394). The same learned judge said in Moore v. City of New York (8 N. Y., 112): ‘ ‘ Before assignment of dower, the widow has no estate, but a mere right in action or claim, which cannot be sold on execution, ” citing 2 N. Y., 254; Greenl. Cruise, Dig., tit. “ Dower,” chap. 3, § 1; Gooch v. Atkins (14 Mass. 378). “If this is the true character of the right of the widow prior to the assignment, that of a wife must be a right to a claim for dower, contingent upon her surviving her husband. Such a possibility may be released, but it is not, it is believed, the subject of grant or assignment, nor is it in any sense an interest in real estate. ” ‘ ‘ The estate of the widow, after assignment of dower, is a continuation of the estate of her deceased husband.”

It was held in Marvin v. Smith (46 N. Y., 574), that “an inchoate right of dower may be released to the grantee of the husband by a proper conveyance, executed and acknowledged in the form prescribed by statute, but the right cannot be transferred to a stranger, or to one to whom the wife does not stand in privity.” It was further held that the husband having previously conveyed the premises upon certain specified trusts, that a mortgage upon the same, subsequently executed by the husband and wife, was ineffectual to bar her right of dower; the court saying: “If, therefore, the husband had no interest which was subject to the mortgage, and passed by means of it, the mortgagee took no title to the dower right. That could only be released by a deed of her husband, conveying the estate to which it was incidental, in which she shall unite.”

In Elwood v. Klock (13 Barb., 50), it was held, where “the widow of the first tenant releases her dower, before the same has been assigned to her, her release will operate, not as .an assignment of dower to the widow, nor as a conveyance of it to the grantee, but as an extinguishment of her right of dower; and such release will not affect the claim to dower of the widow of a subsequent grantee of the premises.”

The case of Elmendorf v. Lockwood (57 N. Y., 322), seems in point upon the question in this case. In discussing the nature of the act of the wife in joining her husband in the execution of a deed, Earl, J., said: “When she has united in the conveyance, her dower is said to be barred, relinquished, extinguished, removed. Such is the language of Kent and other legal writers. Judge Willard, in his work on Real Estate, 61,_ says: ‘The inchoate right to dower is, in this state, an incumbrance upon the estate of her husband, which is usually removed by her uniting with him in the deed, and acknowledging the execution thereof. ’ And at page 64: ‘The object of uniting the wife with the husband in his conveyance of land to a third person is to extinguish her inchoate right of dower.’ ” Continuing, Judge Earl further says: “When the wife unites with her husband in a conveyance properly executed by her, which is effectual and operative against her husband, and which is not superseded or set aside as against him or his grantee, her right of dower is forever barred and extinguished, for all purposes, and as to all persons.” Dwight, C., writing in the same case, and considering the nature of a fine in the English law, for which our system of private acknowledgments is a substitute, says: “A fine levied by a person who has no title, but who afterwards becomes heir, will he an estoppel to his claim as heir, and yet, a release by deed would not have barred his title. The principle seems to be that the fine accompanies the estate, and becomes a muniment of title, and may be resorted to by any one who happens to be in possession of the estate. These views would prevail in the case of dower while it is still inchoate. The argument would be yet stronger after the husband’s death. The estoppel would then work a transfer of the estate to the vendee under the husband’s conveyance. Lampet's Case, 10 Coke, 328; Helps v. Hereford, 2 Barn. & Ald., 242.”

It was also held in Aikman v. Harsell (98 N. Y., 191), that “ The right of a widow to dower, until it is assigned, is a mere chose in action, which is not the subject of a sale upon execution at law, and, before assignment or admeasurement, is only a claim.”

So, too, it is said by Andrews, J., in Hinchliffe v. Shea (103 N. Y., 155): “The joinder by a married woman with her husband in a deed or mortgage of his lands does not operate, as to her, by way of passing an estate, but inures simply as a release to the grantee of the husband of her future contingent right of dower in the granted or mortgaged premises, in aid of the title or interest conveyed by his deed or mortgage. Her release attends the title derived from the husband, and concludes her from afterwards claiming dower in the premises as against the grantee or mortgagee, so long as there remains a subsisting title or interest created by his conveyance. ” See, also, Sanford v. Ellithorp (95 N. Y., 50).

It would seem clear, from the authorities, that the act of the wife in joining her husband in the execution of a deed of his lands does not constitute her a grantor of the premises, or vest in the grantee any greater or other estate than such as he derives from the conveyance of the husband. Its effect is merely to extinguish a contingent claim existing as a possible incumbrance, and ceasing to exist by reason of the execution of the husband’s deed, and to be revived only by the subsequent cancellation or annulment of his conveyance. It is also obvious that the grantee in such deed takes title to the whole premises solely by virtue of the title and estate of the husband, and, therefore, in the fullest sense, derives his title “through, from, and under ” such grantor.

We are, therefore, of the opinion that the defendant took the title to the entire premises in dispute from Rudolph A. Witthaus, and that his wife was not a competent witness to testify to personal transactions and communications occurring between herself and her husband in reference to such deed. The defendant is, therefore, within the letter as well as the spirit of section 829 of the Code. It follows, as matter of course, from these views, that the several appeals of the plaintiff, which constitute incidents to the judgment, must fall with the reversal of the judgment. Such appeals are, therefore, dismissed, without costs to either party.

The judgment of the courts below should be reversed upon the defendant’s appeal, and a new trial ordered, with costs to abide the event.

AH concur.


author: Peckham, J.

text:
    Alfred H. Smith and ano., Resp’t, v. Henry Clews, App’lt.

      (Court of Appeals,

      Filed April 19, 1887.)

    Conditional sale—Privilege to show to customer and return on DEMAND.
    A diamond merchant, after selling diamonds on two former occasions for plaintiffs, obtained a pair of earrings from their agent, giving a receipt . that he received “ on approval to show to my customers, said knobs to be returned (to plaintiffs)' on demand,” and sold them in good faith to defendant. Feld, that plaintiffs conferred on him the power to sell the diamonds, and that a good title passed, and that the receipt meant nothing else under the circumstances than an authority to sell the stones to a customer, if they met his approval, and if not actually sold before demand made, that they should be returned to plaintiffs on demand.
    Appeal from general term, supreme court, first department.

      Albert A. Abbott, for app’lt; Chas. H. Woodbury, for resp’ts.

       Reversing 33 Hun, 501.

   Peckham, J.

This is an action under the Code to obtain the delivery of personal property alleged to belong to plaintiffs, and to be wrongfully withheld by defendant. The plaintiffs had a verdict, which was affirmed at general term, and the defendant has appealed here. The plaintiffs claimed to be the owners of what they called a pair of diamond ear-knobs, of the value of $1,400, which came into the possession of defendant, as shown by the evidence, in the following manner: Elijah Miers was a dealer in diamonds in New York. His business was to procure diamonds from the larger dealers, and sell them to his customers. Before the 13th of January, 1879, he had procured from an authorized agent of the plaintiffs a pair of diamond ear-rings, which on that day he had sold to the defendant for §300, and had received the check of defendant, payable to his order, in payment therefor. Before the 23d day of January, 1879, Miers had procured another pair of ear-rings from plaintiffs’ said agent for $450, receiving in payment the .first pair of ear-rings, and the check of defendant for the balance of $150. Miers had paid to plaintiffs’ agent the price of these diamonds after the sale to defendant. The defendant had purchased them in good faith from Miers, assuming him to be the owner. He intended the first pair as a present for his wife, but, when shown to her, she preferred a more expensive pair, and hence the second purchase. These also proved unacceptable, and it was some time after their purchase by defendant before the diamonds in question were presented to him for purchase, he having in the mean time kept the second- pair, and, upon' the purchase of the diamonds in question of the same man, Miers, he gave back the second pair, and paid $650 in addition, thus making up $1,100, the purchase-price of these last diamonds. There is no question of the bona fides of this series of purchases by the defendant.

The evidence is uncontradicted as to the manner in which Miers obtained the last diamonds from the plaintiffs. They had delivered them to Plumb, the diamond broker who had delivered the other diamonds to Miers. One of the plaintiffs was asked how it happened that he delivered these diamonds to Plumb, and he testified that he could not say whether it was at Miers’ request or not, but that Miers had called on him before he delivered them to Plumb, and had said to him that he had a customer for a pair of diamond ear-knobs; and, although the plaintiff could not say that he told Miers that he would send him the diamonds through Plumb, yet he says he stated to Plumb that he would do so, and he did do so, and he authorized Plumb to deliver the diamonds to Miers, and that that is the way Miers got them. The witness also said he knew Miers had the diamonds in his possession immediately; that they were taken from the plaintiffs’ office and delivered to Miers by Plumb. They were delivered to Plumb on the 12th of April, and by him to Miers on that day. When Plumb delivered them to Miers, he took from him a receipt in this form:

“New York, April 12, 1879.
“Received from Alfred H. Smith & Co., by their representative, B. W. Plumb, a pair of single-stem diamond ear-rings,-10 & 1-8 carats, of the value of fourteen hundred dollars, on approval to show to my customers; said knobs to be returned to said A. H. Smith & Co., on demand.
“E. MIERS.”

Having thus become possessed of the diamonds, Miers, as has. been stated, sold them to defendant, and the question is, did he get a good title as against the plaintiffs ?

Taking the undisputed evidence; and reading this receipt in the light thereof, we cannot resist the conclusion that the plaintiffs conferred upon Miers the power to sell these diamonds, and of course to give a good title, and therefore the court should have directed a verdict for the defendant.

The plaintiffs were dealers in diamonds, and they knew Miers, and that he was engaged in the business of a diamond dealer—a seller of the stones to whomsoever he chose. They had on two former occasions intrusted, through their agent, diamonds to Miers, who had sold them, and accounted for the proceeds of the sale without any fault being found, so far as appears, on account of any lack of authority to sell. They were informed by Miers on this particular occasion that he had a customer for a pair of diamond ear-rings, and these diamonds were then intrusted to Miers by the plaintiffs, through their agent, Plumb. Upon taking them, Miers gives the receipt spoken of. Now, upon these facts, what other meaning can be attached to that receipt than that Miers had power to take these diamonds, show them to his customer, and, if approved of by the customer, sell them to him ? The fact that Miers agreed to return' them to plaintiffs on demand, must be construed with reference to the obvious purpose for which the diamonds were intrusted to him, viz., that of a sale, and, so construed, the plain meaning is that, if not already sold, the plaintiffs had the right to demand a return of the diamonds at any time, and Miers would then be bound to return them. The information given to plaintiffs by Miers, that he (Miers) had a customer for a pair of diamond ear-knobs, is susceptible of no other interpretation than that he had a customer who wanted to buy a pair. Under such circumstances, what could a dealer in diamonds mean by intrusting them to another dealer, who had a customer who wanted to buy them, and who came to this dealer for the purpose of being supplied by him with diamonds of a kind which his customer wanted to buy?

Enlightened by these facts, the interpretation oí the receipt signed by Miers is an easy matter. It can mean nothing else than an authority to sell the stones to the cus-6 tomer, if they met his approval, and, if not actually sold before demand made, they should be returned to the plaintiffs upon such demand. This conclusion, as to what was the actual authority given to Miers, does not in the least affect the propriety of the decisions cited by the counsel for the respondents, and in the opinion of the court at general term, to the effect that one intrusted simply with the possession of personal^ property, with no power to sell or pass title, cannot give title to the property even to a bona fide purchaser for value. The question here is simply what was the authority with which the man Miers was clothed, and, upon the undisputed evidence in the case, we hold it was an authority to sell.

The judgments of the general term and of the circuit should be reversed, and a new trial ordered, costs to abide event.

All concur.


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    Heacock and ano., App’lts, v. The State of New York, Resp’t.

      (Court of Appeals,

      Filed April 19, 1887.)

    1. Canal—Injuries by negligent work in improvement of—Claim for when barred—Laws 1870, chap. 321.
    Previous to 1870, except in special cases, there was no provision for occasional and temporary damages flowing from the negligence of the canal officers, or needless injuries resulting from the manner of their work, and which should have been prevented, and a claim for injuries caused in the enlargement of the canal by raising its banks, building them of loose earth, not puddled or made tight, so that leakage resulted, is brought under chapter 321 of that year, and is not barred because not brought within one year, as required by the Revised Statutes, which refer to another class of cases.
    2. Same—Coffer dams—Laws 1830, chap. 293.
    Where the state uses coffer dams in the process of deepening a river, and suffers the structure in midstream to remain, although removing the ends, so that they assume the character of an island, they are merely temporary obstructions, and in no just sense a dam, and claim for injuries caused thereby was improperly rejected by the board of claims, on the ground that they were dams within the act of 1830, and that the claim was provable before the appraisers under that act, and because not so presented, lost, if not extinguished.
    Appeal from board of claims.

      D. O'Brien, att’y-gen., for resp’t; O. L. Stone, for app’lts.
   Finch, J.

In all our reviews of canal legislation, we have invariably recognized the broad distinction between the claims referred to and provided for in the Revised Statutes (part 1, tit. 9, chapter 9, §§ 46, 48) and those covered by the act of 1870 (chapter 321). The former related to a permanent appropriation to the use of the state in the process of construction or improvement, and which would presumably continue while the canal existed. The latter embraced injuries resulting from the canals, or their‘use or management, or the negligence of the officers in charge. Mark v. State, 97 N. Y., 572; People v. Thayer, 63 id., 350. These are mainly temporary injuries, and may, for convenience, be described as such, although it is possible that there may be included among them some injuries of a permanent character, which had not been covered and provided for by the previous legislation. The act was intended to supplement and extend the existing jurisdiction by adding authority over new cases for which no remedy had been earlier enacted. Under the Revised Statutes, it was provided that the state should take a fee, and, unless the land-owner applied for compensation within one year, his light should be deemed extinguished. Under the act of 1870, no land is taken or appropriated, and the title and the right remain in the owner, and an injury to that right and damages resulting are all that are contemplated. In the one case there was jurisdiction in the canal appraisers to hear the claim; in the other, they had no such jurisdiction until 1870. The Revised Statutes did provide for one class, and one only, of temporary injuries. Section 58. Where lands had been occupied by the canal commissioners for a temporary purpose, or to take therefrom material for repairs, the damages were to be adjusted by arbitration, and no limitation was prescribed, since, if the claimant failed to name an arbi: trator, the county judge was authorized to name one in his behalf. But in 1830 an act was passed, evidently intended to reach a case not contemplated by either provision of - the Revised Statutes.

The canal commissioners were originally the officers charged with the construction of the canals, and with any extraordinary repairs or improvements on any completed canal, and for these two purposes, and these only, they were authorized to take lands, streams and waters, and build dams and aqueducts, and construct feeders. Rev. Stat., supra, §§ 16, 17. These were permanent purposes, and. contemplated works essential to the construction, improvement and maintenance of the water-way, and such as would become necessary and integral parts of the canal system, and so required an ownership in fee. For such acquisitions a mode of compensation existed. But there were cases where, by reason of permanent dams, necessary to the operation of feeders, lands had been subjected to overflow which the state had not taken or appropriated, wdiere.itneither needed nor asserted a title in fee, but where .it took only an easement in the land of the owner in the form of a right to set the water back upon him as a consequence of the constructed dam. For such cases, prior to 1830, there was no rémedy provided, unless by insisting that the state should and did take a fee when only an easement was required. The overflow could not be deemed a temporary occupation of land to be adjusted by arbitration, for it was permanent and continuous, essential to the operation of the feeder and the supply of the canals, and, if the fee was not taken, the appraisers had no jurisdiction. To meet such cases the act of 1830 was passed. Chapter 293. It authorized an appraisal “when any lands are overflowed by the erection of any dam by the canal commissioners on any river or stream connected with the public works.” As we have seen, the authority of these officers in taking waters was for the permanent use and supply of the canals, so that the dam and overflow referred to were those of a permanent and continuous character. The damages sustained by the land-owner were to be appraised, and the injury contemplated was one to the reality. Since the dam and the overflow were thus continuous and permanent, the mode of appraisal for the easement taken was made the same as where the fee was taken (section 2), but the only limitation expressly provided was as to lands which had previously been overflowed (section 3). The reference of section 2 to the then existing laws is very general in its terms, and both the appraisers and the board of claims have held that the clause of the Revised Statutes which extinguishes claims not filed within the prescribed period of limitation is by that reference imported into the act of 1830. We do not consider that, nor the effect upon the clause of the latter act of 1866, but, if the view be correct, it shows yet more clearly that the act of 1830 referred to a permanent easement, so taken that the right to it could be extinguished, and bar a claim of future trespasses. Even a temporary taking of waters, and a temporary flooding of land in order to supply an occasional deficiency of water in the canals, was not deemed within the purview of the act of 1830, for three years later it was provided that such damages should be settled by arbitration, as in case of the temporary occupation of land. Laws 1833, chap. 196. And thus we obtain a view of the general scheme intended by the legislature. For a permanent taking either of a fee or an easement either in lands or waters, the appraisers had jurisdiction to settle the damages; and for temporary occupation of lands or waters, to provide for repairs or incidental deficiencies, the remedy was by the statute arbitration. This view is in accord with an early decision of this court. People v. Schoonmaker, 13 N. Y., 238.

But in all this there was plainly no provision for occasional and temporary damages flowing from the-negligence of the canal officers, or needless injuries resulting from the manner of their work, and which should have been prevented. Numerous special acts were passed to meet such supposed omissions. Land overflowed by reason of the embankment across the Montezuma marshes was neither taken nor appropriated, and neither permanently nor temporarily, but the damages involved the sufficiency of the water-way under the aqueduct, and so were specially provided for. Laws 1862, chap. 310. In like manner, claims were ordered heard arising from the overflow of the Champlain canal (Laws 1862, >chap. 262), from flooding by Oil creek reservoir (Laws 1862, chap. 257), from wastewiers and the Erie canal (Laws 1862. chap 377), from damming up by obstruction of culvert (Laws 1862, chap 259), from neglect in construction of Oswego canal enlargement (Laws 1864, chap. 480), and from overflow as a consequence of that construction (Laws 1864, chap. 580) These special acts imply that no remedy existed under the general laws in force, and they were followed by the act of 1870, which ended the special legislation by providing for all such cases. Until that act was passed, neither the Revised Statutes, nor the law of 1836, gave to the canal appraisers jurisdiction over injuries resulting from neglect, or which were temporary and occasional in their character, and involved no permanent or continuous damage.

The claim of the present plaintiffs is of the latter character, and the board of claims erred in determining that it might have been presented under the act of 1830, and was barred and lost by reason of that omission. The claimants owned salt works lying along the Liverpool levee of the Oswego canal. That levee runs nearly parallel with the east shore of Onondaga lake, the waters of which, through a northern outlet, discharge into the Oswego river, which empties into Lake Ontario. That river is further fed by the Oneida river on the east, and the Seneca river on the west, which latter carries the waters of the Cayuga and Seneca lakes and of the Clyde river, and_ passing around a sharp curve, over Jack’s reefs, forms a juncture with the Oswego river as a final outlet. The claimants allege three sources of injury—First, an insufficient culvert to carry under the canal the waters of Beartrap and Mud creeks; second, obstructions placed in the Oswego river at Gaskin’s reefs and at Phenix, and the lowering of Jack’s reefs; and, third, raising the water of the canal without retaining it within suitable banks, so that it soaked through and destroyed the claimants’ salt works.

As to the first and third of these claims, there can be no reasonable pretense that a remedy existed before the act of 1870, and we do not understand that they were rejected for any such reason. In so far as the determination of the first rests purely upon a question of fact, and upon some evidence, the result is riot subject to our review, and the merits of the claim in these respects may be left to the final adjudication to be made.

The third cause of injury was "quite strongly proved. In the process of the canal enlargement, its depth was increased by raising its banks, and correspondingly the level of its water; but the banks were built of loose earth, and not puddled or made tight, as is usually and may easily be done, so that leakage resulted, occasioning injury. On the face of it this was a negligent act. The object of a canal is to hold and retain water for the purpose of navigation, and banks which permit it to escape both waste the water supplied and injure the adjoining owners. The answer made to this element of the claim is neither a denial of the facts, nor an assertion that it does not amount to negligence. If it was a question between individuals, and the canal had been built by a private corporation, the percolation resulting from leaking and illy-constructed banks would easily be deemed negligence, and to such a standard the act of 1870 itself appeals. This cause of injury seems to have been rejected solely because not sufficiently pleaded. We are not satisfied with that answer. These proceedings have always been quite informal, and no rigid or technical rules of pleading have been established. The criticism is that negligence in constructing the bank was not explicitly and in terms alleged. But no such objection was taken on the hearing, so far as we are able to ascertain; until the evidence had all been admitted; and, while we do not think the state was at all misled, the pleading should be deemed amended, or may be on the new hearing, which must be ordered.

There remains the second asserted ground of liability, that the state obstructed the Oswego river, and, by lessening the natural drainage to the north, and increasing the water supply by lowering Jack’s reefs, raised the level of the Onondaga lake, and flooded the claimants’ land. The proof showed that, during the process of enlarging the Oswego canal, the state erected two coffer-dams to exclude the water temporarily while sinking the bed of the river. These ran lengthwise of the river for quite a distance, utilizing two islands lying in the stream, and while the improvement was going on were closed at each end, the river hereby running in a narrowed channel. When the work was done, the ends or wings running to the bank were removed, but the structure in mid-stream was suffered to remain, assuming the character of an island. The board of claims held these to be dams within the meaning of the act of 1830, and the claim to be provable as a cause of damages before the appraisers under that act, and, 'because not so presented, lost, if not extinguished. The question was not determined upon the merits. If we have correctly-interpreted the act of 1830, it had nothing to do with such a temporary and occasional structure as is denominated a “coffer-dam.” Those here complained of did not extend across the river, and were merely temporary obstructions. They remained only till the work was done, and then existed as an island, and in no just sense a dam. Their consequences were brief, while serving as a coffer-dam, and involved no permanent easement necessary to be acquired by the state. It was, therefore, error to reject the claim for the reasons assigned, and the case must go back for a rehearing.

Nothing that we have said must be construed into an opinion on the merits or as to the ultimate results. The facts are to be considered unaffected by any supposed judgment of ours as to their force or weight. We have sought to pass only upon the questions of law involved.

The judgment should be reversed, and a new hearing ordered.

All concur.


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    Nathaniel Stewart, App’lt, v. The State of New York, Resp’t.

      (Court of Appeals,

      Filed April 19, 1887.)

    Canals—Laws 1870. chap. 821.
    The act of 1870 does not relate to or confer a new .-jurisdiction to hear claims for the taking of a fee, or for the appropriation of a continuous and permanent easement by the state, and so does not cover claims for injury through the rebuilding of a state dam, which is a permanent structure, necessary for the canal navigation, where its effect in setting-back the water is so evidently permanent and lasting as to show that if the state did not formally take a fee, it at least took a continuous and lasting easement, almost equivalent to an entire appropriation of the land.
    Appeal from board of claims.

      William C. Stephens, for app’lt; I). O'Brien, att’y-gen., for resp’t.
   Finch, J.

Our decision in the case of Mark v. State (97 N. Y., 580), and in Heacock v. State (ante —), just rendered, establish that the act of 1870, whatever may prove to be its entire scope, does not relate to or confer a new jurisdiction to hear claims for the taking of a fee, or for the appropriation of a continuous and permanent easement by the state. The injury to this claimant was wholly of the latter character. He alleges that the state, “for the purposes of canal navigation, rebuilt the dam at Oswego Falls, on the Oswego river and canal; that, by reason of such rebuilding, the waters of said Ox creek were set back upon the lands of claimant and the said stream became sluggish, and the current almost wholly destroyed; that the channel of said stream became filled with growing flags and grass, and by the accumulation of earth and other material, whereby the waters thereof do not pass off, but remain the entire year on said lands, rendering them valueless for any purpose whatever, and destroyed the timber thereon; that the damage to said claimant, by reason of the acts and facts stated, is from one hundred' and fifty to two hundred dollars per acre.” The dam referred to was a permanent structure, necessary for the canal navigation, and its effect in setting back the water was so evidently permanent and lasting as to show that, if the state did not formally take a fee, it at least took a continuous and lasting easement, which was almost in its consequences equivalent to an entire appropriation of the land. There was neither assertion of negligence, nor proof, or offer to prove the same, and so the claim was not provable under the act of 1870, because already provided for under the act of 1830, or the amendatory act of 1866. Whatever doubt there may be as to the character and scope of the limitation in the act of 1830, there is none as to that in the amendment of 1866. The claim was required to be presented in one year. The only question here is whether the claim was for a permanent appropriation of the appellant’s lands to the use of the state. He himself so declares. He alleges a permanent easement taken by the state for the use of the canals, and corresponding damages. He therefore had a remedy before the act of 1870, and not under that act. The award should be affirmed.

All concur.


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    The People ex rel. Rome, Watertown and Ogdensburgh Railroad v. Warren Hicks (3 cases). Same v. Melviele M. Eddy, as Assessor of the Town of Williamson. Same v. William Bancroft, Assessor Town of Webster.

      (Court of Appeals,

      Filed, April 19, 1887.)

    1. Appeals—Railroad assessments—Laws 1880, chap. 269.
    This court will confine its review of proceedings under Laws of 1880, chapter 269, to questions of law, and will not interfere in matters involving only the discretion of the supreme court in dealing with the valuation of assessors.
    2. Same—Earning capacity of railroad.
    The reports of the company, made under oath, furnish almost the only available means of testing earning capacity, and the assessors have a right to refer to them.

      3. Same—Notice of completion of roll—Certiorari.
    The omission to give the notice of the completion of the roll, etc., required by Laws 1880, chapter 369, section 9, does not set the fifteen days, running during which application may be made for writ of certiorari, and leaves it to be sued out any time.
    Appeal from general term supreme court, Fifth department.

      W. B. Hornblower, for pl’ff; E. B. Wynn, for def’t.

       Affirming 40 Hun, 598; 2 N. Y. State Rep., 294.

   Finch, J.

These are cross-appeals. In the case of the-same relators against the assessors of the towns of Somerset, and. Wilson, recently decided, we declined to review the conclusion of fact upon the question of value. It is usual for us, on a motion, to follow the determination of the courts below upon the facts, and, unless this court is to become a board of assessors to settle- finally disputed valuations all over the state, we must confine our review of proceedings instituted under the act of 1880 to questions of law, and to the inquiry whether legal rules or correct principles have been violated. We have several times dismissed similar appeals as involving only the discretion of the supreme court in dealing with the valuations of assessors. People v. Pond, 92 N. Y., 643; People v. Weaver, 99 id., 659.

It is sought to bring to our notice errors of law by treating the reasoning and computations of the opinions as before us, and insisting that no other considerations affected the conclusion reached. The orders entered show only a valuation fixed and determined. Nothing in them, or in the record, discloses any violation of the correct principles upon which the valuation should be ascertained, or shows that the conclusion of the court was founded solely and alone upon earning capacity. On one side a capitalization upon the basis of 5 per cent is criticised. But the whole process was tentative, and for consideration in its bearing on the ultimate result, and not conclusive. It was an aid in determining value, and a very important one, but simply an assistance to the judgment, in connection with cost, location, feeders, and probable increase of business, and the like, and no law dictates what calculations the court shall make to enlighten its own ultimate judgment. On the other hand, the opinions are searched to detect errors in arriving at net profits. But they are inquired into only as means to an end, and possibly no two minds would agree precisely as to what they were. We observe that the learned referee made up fourteen different tables of valuation, showing the variation in possible methods of computation. All these were before the special and general terms, and were doubtless considered in reaching the result. What may have induced a preference of one over another we cannot accurately know. So far as it is said that the reports of the company, made under oath, and as required by law, should not have been considered, the anwer is that they furnish almost the only available means of testing earning capacity. The assessors had a right to refer to them, and probably did, and the peculiar character of the proceeding seems to make them ex necessitate a source and means of information. To apply rigidly all the rules of evidence to such an investigation might make it fruitless.

Of course, the view we take of our duty may lead to the result that the same line of road will be differently valued in different towns. That is inevitable, so far as assessors are concerned, and it can excite no surprise that general terms should also differ in their valuations. Nevertheless we shall continue to rest upon the judgment of the courts below, where the value is fairly in dispute, unless we can see that elements proper to be considered have been excluded, or those not proper to be considered have been given forcé, or that some legal error has vitiated the conclusion. We are better satisfied with the reduced valuations now before us than with those previously affirmed; but so long as the differences are upon judgments of value merely, and where there is room for disagreement, we shall decline to interfere.

There is nothing in the objection that the writ issued to the assessors of the town of Webster came too late. No notice of the completion of the roll, and its delivery to the proper officer, and stating where it could be inspected, was ever given. Laws 1880, chap. 269, sec. 9. We have recently.held that the omission does not set running the fifteen days during which application may be made for the writ, and leaves it to be sued out at any time.

The orders should be affirmed, without costs to either party against the other.

All concur.