author: Brady, P. J.;

text:
    GALEN W. LOVATT, Respondent, v. ELLEN F. WATSON and Others, Appellants.

      Practice — no new note of issue need be fled after a supplemental complaint has been serned — am. order of the court should be reduced to writing.

    Appeal from a judgment in favor of the plaintiff, entered upon the trial of this action at a Special Term.
    This action was brought to enforce the specific performance of a contract of lease, and to restrain the defendants from removing the plaintiff by a summary proceeding under the statute in such case made and provided. The defendants rented to the plaintiff' two rooms of the premises 42 East Nineteenth street on the 13th of October, 1881, for a term comjnencing on the eighteenth of that month, at a rental of twenty-five dollai’s per month, the term to end on the 1st of May, 1883, and also agreed to rent to the plaintiff a certain front office in the premises in addition thereto, on the 1st of May, 1882, at a rent which would make a total for all of fifteen dollars per week for the balance of the term, three rooms thus being taken altogether. On the 1st of May, 1882, the defendants commenced proceedings to eject the plaintiff from the two rooms rented, on the ground that his term had expired. On the fourth of May the proceeding was tried in the District Court and resulted in a judgment for the landlords, the present defendants, the justice presiding leaving it to the jury to determine whether the plaintiff’s term had expired or not, and to construe the agreement between the parties which was in writing. Before the warrant of ouster could be enforced, this action was brought and a preliminary injunction obtained restraining the defendants from removing the plaintiff' from, the premises mentioned. The injunction was dissolved, however, on the 10th of May, 1882, and' on the twelfth of May the plaintiff was ejected from the premises.

      The plaintiff appealed to the General Term of the Court of Common Pleas from the order and judgment of ouster, in the District Court, and on the 21st of November, 1882, secured a reversal, that court holding that the plaintiff’s term would not expire until May, 1883, and that the proceedings by which he was evicted, while properly commenced, should have been dismissed by the justice. Thereafter, by leave of the Supreme Court, and on January 8, 1883, the plaintiff filed a supplemental complaint setting up the eviction and reversal, to which the defendants interposed an answer setting up various matters, to some extent involving the issues presented in the proceedings before the District Court and considered by the Court of Common Pleas.
    The court at General Term, after holding that the plaintiff was rightly awarded a judgment upon the merits, said: “ The appellants also appeal from what.'is called by their counsel an interlocutory order, and which was made under peculiar circumstances. It appears that an inquest was taken in this case by the plaintiff and an application made on behalf of the defendants to set it aside. The motion was granted on terms. The appellants’ counsel not being satisfied, and assuming that a point he made had been overlooked by the learned justice who decided the motion, and which was that the plaintiff had neglected to file with the clerk a note of issue after service of a supplemental complaint and answer, renewed the application; and upon this second application the learned justice held that if the justice holding Special Term should adjudge that the plaintiff was not entitled to try his cause for the reason that no new notice of trial had been served, the costs provided for in his previous order should be refunded and the order awarding them vacated. The justice presiding at the trial term, on being advised of the facts, expressed the opinion that in the case of an amended complaint after a note of issue had been filed it was necessary for the plaintiff to file another, but that it was not requisite in the case of a supplemental complaint and determined that the trial of the action should be proceeded with.
    “ From this opinion thus expressed and the direction thus given the defendants appeal and now urge the point already stated, namely, that after the service of a supplemental complaint a new note of issue and notice of trial was necessary to enable the plaintiff to proceed, and that they were tuerefore out .tied to an order setting aside the inquest on the ground that the plaintiff was not in a position to proceed at the time he did so, by reason of the omission to serve a new notice of trial and file a new note of issue founded upon the supplementary pleadings.

      “ This view is erroneous. A supplemental complaint under the Code is not a substitute for the original complaint, but a further complaint, and assumes that the original complaint is to stand. This is the view entertained under section 177 of the Code of Procedure. (See 2 Wait’s Pr., 472, where the cases are collected.) It is there stated to have been the rule that unless the court compel the party applying for leave to file a supplemental pleading to elect to substitute it in place of the previous one, both pleadings will remain. (See cases cited.) Under section 544 of the Code of Civil Procedure the same rule applies. That section declares that upon the application of either party the court may, and in a proper case must, upon such terms as are just, permit him to make a supplemental complaint, answer or reply, alleging the material facts which occurred after his former pleading and of which he was ignorant when made, including the judgment or decree of a competent, court, rendered after the commencement of the action, determining the matters in controversy or a part thereof. The supplemental complaint in this action simply set up the reversal of the judgment rendered in the District Court in the summary proceedings adopted by the defendants. And the Code further provides that the appellant can apply for leave to make a supplemental pleading either in addition to or in place of the former pleading. The application here was- “in addition to,” and the form of the supplemental complaint shows that it was sought in that respect and that only. And it is further provided, whep the application is in addition to the original pleading, if the application is granted, a provisional remedy or other proceedings taken in the action is not effected by the supplemental pleading. It is clear, therefore, that thei’e was no necessity, as declared by the learned judge at the Special Term, to file either a note of issue or to serve a new notice of trial. In addition to this, it must be noted that the application to set aside the inquest was not based upon the charge that it had been irregulary obtained. It was addressed to the discretion or favor of the court, although the point about the omission to serve notice of trial and to file a note of issue was subsequently considered and disposed of, at the urgent solicitation of the defendants’ counsel.
    And it must be also noted, that whether the direction appealed from is an order, to say the least, is very doubtful. Section 767 of the Code provides tbat a direction of a court or judge made as prescribed in the act in an action or special proceeding must be in-writing, unless otherwise specified in the particular case, and that unless contained in the judgment it is an order. No order or direction appears to have been made in writing,. the decision of the judge merely was announced and the announcement entered on the record. But the appellants have been given the benefit of the assumption that it was an order notwithstanding the doubt.”

      A. B. Conger, for the appellants.

      Edward P. Wilder, for the respondent.
   Opinion by

Brady, P. J.;

Daniels, J., concurred.

Judgment and order affirmed, with costs of appeal only.


source: Caselaw Access Project

author: Davis, P. J.,

license: Public Domain

text:
    JOHN L. MACAULEY and ANDREW J. MACAULEY, Respondents, v. GUSTAVUS C. HOPKINS and Others, Appellants.

      Pledge of personal property to seaw'e a loan — -when a delivery thereof, made after the malting of the loan, will malte it valid, as against the pledgor’s weditors — when the possession of the pledgor will he deemed that of the pledgee.

    Appeal from a judgment in favor of the plaintiffs, entered on the report of a referee.
    This action was brought by the respondents above named and the sheriff of the city and county of New Ybrk to recover the proceeds of certain bales of cotton alleged to have.been shipped to the appellants, who were cotton brokers in the city of New York, by one William String-fellow, to be sold in the market on his account, and which it was claimed had been attached under an attachment issued in an action brought by the above named respondents Macauley ■& Co. against said String-fellow, and in which judgment was .subsequently recovered. The case depended and was decided by the learned referee upon questions relating to the title to the cotton, and the rights of the creditors of "William Stringfellow therein at the time the attachment was levied.
    It was claimed on the part of the defense that a portion of the cotton so attached was the joiut property of William Stringfellow and his brother John J. Stringfellow, it having been bought by moneys advanced by John J. to William for that purpose, and under an agreement that the cotton should be bought for their joint account.
    The court, after reviewing the evidence and holding that the referee should have found that the cotton was owned jointly by "William and John Stringfellow, and that for that reason a new trial should be had, further said : “ An extremely interesting question also arises in the case growing out of the defendants’ claim that the National Bank of Chester, S. C., was entitled to the proceeds of the cotton attached. The cotton was purchased by William String-fellow'at Chester, S. C., with moneys advanced by the bank. After the same was purchased it was deposited in a warehouse kept by "William Stringfellow. He gave to the bank notes which, after reciting the amount of money borrowed, contained a clause to the following effect: £ Having deposited with them as collateral security certificate of warehouse receipts -for thirty-two bales of cotton marked "W, and insured at Chester, and county bonds for any deficiency, which receipt and cotton I hereby authorize them to sell without notice at public or private sale at their option; in case of the non-performance of this promise applying the net proceeds to the payment of this note, including interest, and accounting to me for surplus, if any. In case of deficiency I promise to pay to them the amount thereof forthwith after such sale, with interest upon the amount unpaid, at the rate above specified.’
    ££ The receipts referred to in the notes were in the following form:

      “ ‘ I hereby certify that I have in my warehouse, rented from J. C. Hardin, sixty-two bales of cotton, marked J. J. S., and which cotton I hereby pledge to the National Bank of Chester, S. C., as collateral security to my note for $1,502.30 payable one day after date, and dated this day, and executed by me to said bank ; and also deposits and assigns to said bank the insurance policy on said cotton.
    £ WM. STEIN CUELLO W.’

      “ There was evidence tending to show that the cotton mentioned in the receipts was identified and set apart in some instances as it appeared in the warehouse; but the control of the warehouse remained all the while in "William Stringfellow. In respect to the bales of cotton shipped to the appellants and attached in August, 1881, the following agreement was made between the bank and Stringfellow:
    “‘This witnesseth, that it is agreed between myself and the National Bank of Chester, S. C., that the cotton now in my warehouse (rented from J. C. Hardin), may be removed by me and shipped to Messrs. Hopkins, Dwight & Co. of New York city, to be by them sold, and the proceeds to be applied in payment of my notes and interest now due to said bank for money advanced by it, to purchase the cotton and to refund which advancements and pay said notes and interest the cotton so to be removed and shipped is specifically pledged. Cotton marked J. J. S. and S., 125 bales in all.’
    “Under this agreement Stringfellow sent forward the cotton which was attached in the hands of the appellants. So far as the receipts executed by Stringfellow to the bank go it will be seen that the property was distinctly “ pledged ” to the bank under circumstances which would undoubtedly have justified the bank in taking possession as between itself and Stringfellow, but as between the bank and the creditors of Stringfellow or bona fide purchasers from him, the written pledge being unaccompanied by possession, could not be sustained. But when it was agreed between the bank and Stringfellow that the property should be shipped to the defendants to be by them sold, and the proceeds applied to the payment of the demand for which it stood specifically pledged by the written instrument referred to, and it in fact was sent forward and reached the defendants’ possession for that purpose, the question whether that transaction was not in law equivalent to a delivery of possession to the bank under the pledge, so that the attachment of the plaintiffs could not cut off the rights of the bank, is a more serious question. Stringfellow, in the transaction, after sending forward the property to be sold to the brokers named in the agreement for the specific purpose of converting the same into money for the use of the bank, might well be regarded as the agent of the bank, and the selling in his name by the brokers would not of necessity prejudice the rights of the bank as pledgees in possession. The possession of Stringfellow after shipping the cotton while in course of transportation might well be held to be that of an agent for a special and limited purpose. In Pa/rshall v. Eggert (51N. Y., 18), it was held in a somewhat analogous case, that a delivery to the pledgee at any time subsequent to the pledge before the rights of creditors had attached, consummated a valid lien as against said creditors. In this case the delivery to the defendants as brokers, made by Stringfellow pursuant to a written agreement that the same should be so delivered for the purpose of consummating the pledge and entitling the bank to receive the proceeds of the sale, goes far as it seems to us to place the pledge in a position where the law will hold that the rights of the bank are superior to those of subsequently attaching creditors. Nor upon this question does it seem important that the defendants as brokers were not advised at the time of the delivery of the rights of the bank. The only effect the failure to give them such information would have, would be to protect them in their subsequent dealings, if any, with Stringfellow. But the hank could at any moment by giving notice of its rights as pledgee, and of the contract under which the cotton was sent forward for its benefit, cut off the rights of the brokers to pay over the net proceeds to any one but the bank. .The attaching creditors are not bona fide purchasers in any sense. They have advanced nothing upon the credit of the cotton. They stand upon strict legal rights which they must show to have been superior to the rights and equities of the bank. They fail to do this when it appears that before any of their rights accrued by reason of the attachment, the lien of the bank had ripened into a valid one by the agreement which made the possession of the defendant ‘its possession.’
    “But it is not necessary definitely to determine this question because in the view we have taken of the one first considered there must be a new trial of the case in which the facts may assume a different aspect.”

      Freling H. Smith, for the appellants.

      L. Lafli/n Kellogg, for the respondents.
   Opinion by

Davis, P. J.,

Brady and Daniels, JJ., concurred.

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


author: Daniels, J.;

text:
    SOLOMON MOSES and Others, Respondents, v. PETER BOWE, Sheriff, etc., Appellant.

      Pleading — complaint in an action for conversion — when it states facts sufficient to constitute a cause of action.

    Appeal from a judgment in favor of the plaintiffs, entered on the verdict of a jury, and from an order denying a motion for a new trial.
    The court at General Term said: “ The disposition of these appeals depend upon the construction and effect to be given to the complaint in the action. When the trial was brought on, a motion was made to dismiss the action for the reason that the complaint failed to state facts sufficient to constitute a cause of action. This .application was properly denied, for after containing the allegations that the plaintiffs were co-partners in business and that the defendant was the sheriff of the city and county of New York, the complaint proceeded as follows :
    “ Third. That on or about the 22d day of April, 1882, the defendant, as sheriff of the city and county of New York, took from the plaintiffs a large quantity of goods and chattels, consisting of one hundred and thirteen cases of hats owned by and the property of the plaintiffs, of the value of thirteen hundred and ninety-one dollars twenty-two cents,' and wrongfully detains the same, to the damage of the plaintiffs two thousand dollars.
    “ These allegations, while they are not very artistically made, did contain such a statement of facts as constituted a cause of action against the defendant. The averment that the defendant took the property from the plaintiffs, for the value of which judgment was demanded, was equivalent to an allegation that it had been wrongfully taken by him from the possession of the plaintiffs. This was held to be the effect of such an averment in Childs v. Hart (7 Barb., 370, 372). It was, ip its form and effect, an allegation of an act of trespass on the part of the defendant by which he dispossessed the plaintiffs of their property, and as they added the averment of title in themselves, and that the property was wrongfully detained by the defendant, the requisite facts were stated from which they were ■entitled to recover the value of the property as that was alleged in the complaint. These facts were all that could be required to be proved to entitle the plaintiffs to maintain them action. The case was entirely different ixom that of Scofield v. Whitelegge (49 N. Y., 259), for the complaint in that case contained no allegation of title in the plaintiff, and none of the taking of the property from them or from their possession. Adding these facts it was conceded would have, presented a sufficient complaint to entitle the plaintiffs to maintain the action within the authority of Levin v. Russell (42 N. Y., 251). Such a statement of the facts of that case was elaborated and completed in the opinion in Scofield v. Whitelegge (supra), and that such a complaint could not be dismissed at the trial on the ground of its insufficiency was also held in Treat v. Mathorn (3 Hun, 646).”

      Melville H. Regensburger, for the appellant.

      Rudolph Sampler, for the respondents.
   Opinion by

Daniels, J.;

Davis, P. J., concurred.

Present — Davis, P. J., and Daniels, J.

Judgment modified as directed in opinion, and affirmed as modified, without costs to either party.


author: Per Curiam.

text:
    AUGUST MYER, Appellant, v. JOSEPH M. E. THOMSON, and Others, Respondents.

      Action by a judgment creditor to reach property of his debtor — when a contingent remainder in personal po'operty cannot be reached.

    Appeal from a judgment in favor of the defendants, entered upon an order sustaining a demurrer interposed to the complaint.
    The respondent Thomson by a trust deed dated June 16, 1852, gave to the defendant, Charles Darke, certain personal property upon the following trusts:
    “ To pay all existing debts and liabilities of the grantor, to invest the residue and apply the income thereof to the use of the defendant Maria Thomson, grantor’s wife, during her life, and after her death to the use of the grantor for his life, and after the death of both, to pay over the principal to their children.”
    Darke undertook and continued to execute the trust until June,. 1876, when .the New York Life Insurance Company was substituted in his place as trustee. The trust company has continued to perform its duties up to the present time, applying the income of the property to the use of the gi’antor’s wife, Maria Thompson. Since the execution of the trust deed several children have been born to-the said Maria Thompson and the grantor, and are made defendants.
    In January, 18S2, the appellant recovered a judgment against the grantor Thomson, on which execution was issued and returned unsatisfied. The object of this action is to have the deed mentioned,, declared void as against him, except in so far as it provides for the payment of existing debts of the grantor and the trust for his wife; to have the property transferred by said trust deed adjudged to be-vested in the said grantor, subject only to the estate of the trustee for the life of the wife, and to have such estate or interest of the-grantor subjected to the payment of said judgment through the medium of a receiver.
    The defendants demurred to the complaint on the ground that it did not state facts sufficient to constitute a cause of action, and the-demurrer was sustained at the Special Term.
    The court at General Term, said: “ The learned judge in the court below arrived at the conclusion that the deed was not made for the-use of the person making the same in such sense as to be a violation of the provisions of the Revised Statutes, and made no disposition of the property which the statute was designed to prevent, and that in any event the action was prematurely brought as it was conceded that the deed was valid during the lifetime of the wife of the settler.

      “ It is not understood upon an examination of the case that this' concession was made, but it is quite apparent that such a concession could not be very well withheld. There is no doubt about the-validity of the trust deed during the lifetime of the wife, and inasmuch as she may survive her husband the action is prematurely brought. We entertain no doubt whatever about this proposition. The estate may never revert to him. In the language of the-respondent’s counsel, ‘ there is no estate or interest in the defendant Joseph M. E. Thomson which a receiver can take.’ The whole estate is now vested in the trustee, and the mere possibility that said defendant may at some future time have an interest 'therein is not such an interest as a receiver can take.”
    The judgment should be affirmed, with costs.

      Frcmois Lawton, for the appellant.

      De Witt, Lookmcm & De Witt, for the respondents.
   Opinion

Per Curiam.

Present — Davis, P. J., Brady and Daniels, JJ.

Judgment affirmed, with costs.


author: Bradley, J.:

text:
    CHARLES SCHIER, Respondent, v. THE CITY OF BUFFALO, Appellant.

      Municipal corporation — liability of, upon contracts not made as required by its cha/rterr —1870, chap. 519, tit 9, sec. 19, as amended by 1879, ehap. 486, sec. 2.

    The charter of the city of Buffalo provides that the city shall not enter into any contract with any person for the doing of any work at a price exceeding $200, until a certain notice shall have been published, “ except for the sprinkling and watering of streets, which may be done without the notice prescribed herein, where a majority of the owners of property in a street petition therefor.” A. petition presented by the plaintiff to the common council to have a portion of one of the streets watered by him was referred by it to the assessors, who certified that it was not signed by a majority of the property owners and returned it to the common council. The petition was withdrawn, and an additional signature having been procured it was again presented to the common council. Thereafter, the assessors having reported to the common council that a majority of the owners had signed, a contract for the work was made with the plaintiff for an amount exceeding $200, without the publication of any notice. A. majority of the property owners had not signed the petition, the assessors having been misled by an error in their maps, and on that ground the mayor on September twenty-fifth vetoed a resolution confirming an assessment for the work, at which time the plaintiff had virtually completed it.

      Held, that the city was liable to the plaintiff for the value of the services rendered in pursuance of the contract so made.
    That it was proper to allow the defective petition to be withdrawn, and to act upon it when perfected and refiled.

      Appeal by the defendant from a judgment, entered upo'n the trial of the action in the County Court of Erie county, without a jury.
    The action was brought upon an alleged contract with defendant, and upon a quantum, meruit, to recover for services rendered in sprinkling one of its streets. The plaintiff caused to be presented to the common council a petition signed by a number of persons asking to have Main street sprinkled between Goodell and High streets and the contract for the work awarded to him. The petition having been referred to the assessors, was returned by them ' certified to the effect that the signers were not a majority of the resident owners of property fronting on the street and liable to be taxed for it. The plaintiff was thereupon permitted to and did withdraw the petition and procured an additional name to it, when it was again presented to the common council and 'referred by it to the board of assessors, and they afterwards returned the petition to the common council with their certificate to the effect that it was signed by a majority of the resident owners of the lands fronting on that part of Main street, between Goodell and High streets, and' the petition and certificate were then referred by the common council to the committee on streets. This committee submitted a report upon the petition and certificate recommending that the sprinkling be ordered and that a contract be made with the plaintiff at bis offer of twenty-four cents per lineal foot (tbe price named in the petition) for the service from June 1 to October 1,1882, and that an assessment of $452.64 be made to pay it This report was adopted by the common council, and the street commissioner gave to the plaintiff an order directing him to do the work, and be proceeded to do it, and did it. On the 23d of October, 1882, the plaintiff presented the claim for the work to the common council and it was rejected. The assessment-roll for the work was made by the assessors, and on September 11, 1882, it was confirmed by a resolution of thq common council, and on September twenty-fifth, the mayor vetoed the resolution. The assessment was not perfected. The veto was occasioned by the fact that the petition was not signed by a majority of the resident owners of property fronting on the portion of the street in question. Two warrants upon the citv treasury, payable out of the fund to be produced by the assessment, having been drawn pursuant to the direction of the common council in favor of the plaintiff, and delivered to him, were surrendered up at the trial. It appeared that the services performed by him weije worth the price before mentioned.
    The court determined that as the plaintiff performed in good faith the work under the contract, and the defendant had received the benefit of it, the defendant is estopped from alleging the irregularity in the petition, and directed judgment for the plaintiff, which was entered.

      Giles E. SHlwell, for the appellant.

      E. J. Plumley, for the respondent.
   Bradley, J.:

This case is not free from difficulty. The authority of the city, through its officers to make the contract, depended upon the production of a petition of a majority of the resident owners of property on the street where the work was to be done, or the taking of other proceedings prescribed by the statute. The statute provides that “ the city shall not enter into a contract with any person for the doing or making of any work or improvement at a price exceeding two hundred dollars, except for the sprinkling and watering of streets, which may be done without the notice as prescribed herein, whei’e a majority of the owners of property on a street petition therefor, until they shall have published a notice, etc., * *' * and shall not enter into a contract for the doing or making any such work or improvement for a price exceeding five hundred dollars, until the assessment therefor has been confirmed, except that the common council may order any street sprinkled or watered, and the city may enter into a contract therefor upon the petition of a majority of the resident owners upon said street, before the assessment therefor has been confirmed.” (Laws of 1870, chap. 519, tit. 9, § 19, as amended by Laws of 1879, chap. 486, § 2.) In this case the proceedings taken, pursuant to which the contract was made with the plaintiff were founded upon the petition, and no preliminary notice was published. And it not being the petition of the requisite number of resident property owners afforded no right to make an assessment on their property to pay the expense of the work. The contract was not ultra vires, but was within the powers vested in the city. The exercise of the •corporate powers, the performance of its corporate duties, and the management of its affairs and property are vested in the common council. (Laws 1870, chap. 519, tit. 3, § 1.) And it may cause streets to be watered. (Id., § 6, as amended by Laws 1879, chap.,486, § 1.) There seems to be no prescribed manner of ascertaining or determining, as applied to the provision in question, that a petition does represent a majority of the requisite property owners, but the statute provides for facilities to do so in the office of the assessors where maps are kept, which are designed to represent the lots and names of the respective owners covering the lands in the city. (Id., tit. 6, § 4.) And they are to have the opportunity to see and mark down on the map a reference to all conveyances of such lands within the city before they are recorded. (Id., tit. 2, § 40.) Thus is designed to be afforded to them the means of ascertaining by reference to their maps the names of owners of property and where it is located. And in analogy to proceedings in cases requiring petition of resident owners for purposes of other improvements and assessments, the assessors may be deemed the appropriate authorities to give the information to the common council in that respect in a case like the one in question. The petition was therefore properly referred to them, and upon their certificate that it represented the majority required, the common council proceeded in the usual manner to a result which produced the contract. The statute does not permit that certificate to be conclusive. The majority is the requisite fact. There are no negative words prohibiting the action of the common council in this respect. The statute merely provides that they may, on such petition, order the work to be done and enter into contract, the effect of which is that such petition is required and that it is a condition upon which the right to exercise the power depends. It is not, however, in all cases where the municipal corporation would not be permitted to make an assessment, because of irregularity in proceedings, that a party with whom it had made a contract, founded on the same proceedings, would be without remedy. (Moore v. Mayor, 73 N. Y., 238; Horn v. Town of New Lots, 83 id., 105.) The making of such a contract was within the powers of the defendant, and all the proceedings on tbeir face were regular in. form, and it may be assumed, upon the facts as found, that the plaintiff acted in good faith and in the belief that the proceedings which resulted in the contract were in all respects regular and valid, until about the time that the mayor vetoed the action of the common council, when his contract was substantially.performed. He had no means of information to the contrary other than by examination of the maps in the assessors’ office and the records of the county clerk’s office. It appears that the imperfection of the maps in the assessors’ office caused the error in their certificate, and although the plaintiff himself presented the petition, his good faith was not impaired by his failure to seek information from the clerk’s office, nor did the omission to do so charge him with negligence to his prejudice. He was at liberty to rely upon the accustomed method of verifying the fact of majority through the assessors and upon the authorities to determine the sufficiency of the petition in that respect. The fact that the petition went by his motion to the common council, added nothing to his duty. The general proposition is that persons dealing with municipal corporations are required to see that the provisions of the statute under which the power is sought to be exercised are complied with, and if they are not, a contract is not effectual to give any right to relief. (McDonald v. Mayor, 68 N. Y., 23; Smith v. City of Newburgh, 77 id., 130.)

But that rule, in its absolute strictness, may not be applicable when the power exercised is that possessed by the corporation and the proceedings are apparently regular, and where a party has innocently and in good faith proceeded to expend his money, deliver his property, or perform services in performance of the contract, and of which it has received the benefit equal in value to that stipulated to be paid. In such case an equitable estoppel is justly applied which defeats the operation of the irregularity in the proceedings as against him, and requires it to pay for what it has in fact received through the apparently legal proceedings and action of its constituted authorities from the party acting upon the faith of their validity. That is the doctrine and rule well declared in Moore v. Mayor (supra).

"We think the plaintiff acted in good faith and that his claim is within the principle of that case. The contention that the petition as first presented became inoperative for any purpose, and could not be withdrawn and again used, is not well founded. The fact that it was found to represent less than a majority deprived it of the character of a complete petition for the purpose in view, and because incomplete it was not capable of being the subject of official action, but it remained an imperfected instrument with which tiie city had nothing to do. Its presentation was nugatory and could very properly be returned to him who presented it for completion. It had served no purpose in a legal sense, and therefore none of its inchoate vitality was exhausted by the process of passing from the common council to the assessors and its return certifiéd incomplete. It was entitled to no place in any official department of the city. The subsequent effort to give it efficiency by increase of subscribers was legitimate.

If we are right in the view taken of this case it follows that the judgment should be affirmed.

Barker and Corlett, JJ., concurred; Haight, J., not sitting.

Judgment affirmed.


author: Bradley, J.,

text:
    CHARLES JENKINS, Plaintiff, v. JOHN YOUNG and ANTHONY LE FEVER, Defendants.

      Sale of real estate of an intestate — invalid as to an heir-at-law not named in the petition or notified — to what defects section 2 of chapter 82 of 1850, and section 3> thereof, as amended by section 1 of chapter 02 of 1872, do not apply —what facts do not justify the po'esxmption of death.

    In an action of ejectment, brought by one of the beirs-at-law of one Jenkins, wbo died intestate in 1803, it appeared tbat the defendants claimed under a sale of the intestate’s real estate made pursuant to an order of a surrogate in 1871. In the petition for the order directing the sale, which was made by the administrator, the name of the plaintiff in the present action was not mentioned, nor was any notice of the proceedings given to liirn.

      Held, tbat the failure to mention the name of the plaintiff in the petition, or to give liim notice of the proceedings, invalidated the sale.
    Tbat the said omissions were not sucb omissions or defects as were embraced within the intent of section 2 of chapter 82 of 1850, providing that no sucb sale “shall be invalidated, nor in any wise impeached, for any omission or defect in any petition of any executor or administrator,” etc.

      That the plaintiff's right to maintain the action was not taken away by section 1 of chapter 92 of 1872, amending section 3 of chapter 82 of 1850, which provides that no such sale “shall be invalidated, nor in any wise impeached, * * * after a lapse of five years from the time of such sale, where the notice of such sale has been published for six weeks successively before the day of such sale, although such publication may not have been for the full period of forty-two days.”
    That this act was not intended to operate as a general limitation of the time within which such an action as the present one might be brought, but only to bar after five years actions brought to invalidate a sale because of the defect in publication, particularly referred to in the act.
    In an affidavit used in March, 1871, to show the service of a citation to show cause why an administrator of Jenkins’ estate should not be appointed, it was stated that “it was reported that the said Charles Jenkins (the plaintiff) was dead by his friends and that his last place of residence could not be ascertained.”

      Held, that this did not justify the surrogate in presuming that he was dead in the proceedings instituted before the surrogate for the sale of real estate.
    Motion by the plaintiff for a new trial on exceptions taken at the 'Ontario circuit, and ordered to be beard at the General Term in thé first instance.
    The action was in ejectment to recover one undivided fifth part of •certain premises. William Jenkins died intestate in September, 1863, seized of the entire premises, leaving the plaintiff and four •others bis beirs-at-law. The land was sold on the 27tb day of October, 1871, pursuant to an order of the surrogate of - Ontario county, for payment of the debts of the intestate. The petition instituting the proceedings for the sale was made by the administrator of William •Jenkins and omitted the name of the plaintiff.
    The proceedings in other respects were in compliance with the statute. The defendant Young claims title as a subsequent grantee under that sale, and the defendant Le Fever was bis tenant in possession when the’ action was commenced. The plaintiff claims title to the one-fifth part of the premises as heir of William Jenkins, and that the proceedings before the surrogate and the sale were ineffectual to divest bis, title. The requisite publication of the notice of sale was had. The trial court directed a verdict for the ■defendants, and the plaintiff’s counsel excepted.

      Jolvn D. Lynn, for the plaintiff.

      E. W. Gardner, for the defendant.
   Bradley, J.,

The omission of the name of the plaintiff in the petition was a defect. The statute provided that the petition shall set forth the names and ages of the devisees, if any, and of the heirs of the deceased.” (2 R. S., 100, § 2.)

By that statute the defect was jurisdictional and the proceedings and sale did not have the effect to divest the plaintiff of his title, and he was entitled to recover unless by some statute the defect was in some manner obviated or his remedy defeated. (Ackley v. Dygert, 33 Barb., 176; Stilwell v. Swarthout, 81 N. Y., 109.)

By Laws of 1850 (chap. 82, § 2) it was provided that no such sale “ shall be invalidated nor in anywise impeached for any omission or defect in any petition of any executor or administrator under the provisions,” etc. This provision is broad enough in terms to reach any omission, but whether it was designed or should be construed to include the omission of a necessary party to the proceeding, whose title is to be divested by the sale, is the question here. The proposition is fundamental and constitutional, that a person cannot be deprived of his property without due process of law. (Const., art. 1, § 6.) That includes an opportunity to be heard afforded by notice, actual or constructive. (Rockwell v. Nearing, 35 N. Y., 302; Campbell v. Evans, 45 id., 356; Happy v. Mosher, 48 id., 313; In re Beebe, 20 Hun, 462.)

The statute provided that on the presentation of the petition, etc., the surrogate should make an order directing all persons interested to show cause before him at a time and place specified, not less than six and n'ot more than ten weeks thereafter, why the prayer of the petition should not be granted; that the order be published four weeks in a newspaper of the county and served personally on the heirs, etc., residing in the county, fourteen days before such specified time; and if such personal service could not be made, or if they resided in the State and not in the county, it be served personally forty days, or published four successive weeks in the State paper; and if they did not reside in the State, six weeks in the State paper, or be served personally forty days before the time appointed to show cause. And that on proof of such service the surrogate shall proceed, etc. (2 R. S., 101, §§ 5, 6, 7 8.)

In the proceeding in question, the plaintiff was not made a party by the petition, and the notice required by the statute was not in any manner given him, and therefore no jurisdiction of his person was acquired. The necessity of making him a party in the proceeding and giving him such notice as the statute prescribed cannot be obviated or dispensed with by legislation, and the act of 1850 will not be so construed as to have that effect. (Havens v. Sherman, 42 Barb., 636; People ex rel. Witherbee v. Supervisors, 70 N. Y., 228; Owners, etc., v. Mayor, 15 Wend., 374; Bloom v. Burdick, 1 Hill, 130.) If the administrator may have been treated as the representative of the heirs, it may be that the statute may have removed the necessity of serving on them and caused the omission to do so.' But in the proceeding he cannot be treated as their representative in any legal sense. The administrator in the proceeding to sell land of his intestate to pay the debts, represents the creditors and proceeds in hostility to the heirs. (Schneider v. McFarland, 2 N. Y., 459.) If the statute might have the effect to cure the omission of the plaintiff’s name in the petition, it clearly could not dispense with the necessity of notice of the proceeding. It follows that the sale was not effectual to pass the plaintiff’s interest in the land sold. And the remaining question is whether his remedy is defeated. This depends upon the construction of Laws of 18T2 (chap. 92, § 1), amending Laws 1850 (chap. 82, § 3), which provides that no such sale shall be “ invalidated, nor in any wise impeached, * * * after a lapse of five years from the time of such sale where the notice of such sale has been published for six weeks successively before the day of such sale, although such publication may not have been for the full period of forty-two days.” It was within the power of the legislature to limit the time within which the remedy must be sought, and thus to bar it subsequently to the expiration of such time. If this statute is construed as one of such limitation it-may be in the way of the plaintiff’s recovery. (Acker v. Acker, 81 N. Y., 143.) And the repeal of that statute by Laws of 1880, chapter 245, would not have the effect to restore the- remedy. (Shriver v. Shriver, 86 N. Y., 580, 581; Girdner v. Stephens, 1 Heiskell, 280; 2 Am. R., 700; Yancy v. Yancy, 5 id., 353; 13 Am. R., 5; Rockport v. Walden, 54 N. H., 167; 20 Am. R., 131.)

But that provision of the act of- 18T2 does not seem to have been designed as a general limitation of time for remedy against an invalid sale of property. It was intended to bar after five years an attack upon a sale founded upon the defect referred to in the publication of tlie notice of the sale. This purpose is fairly indicated by the other provisions of the section. The object of the several provisions of this section was to cure and overcome defects and informalities in the proceedings. The statute provided that the notice of sale be published in a newspaper six weeks successively. (2 K. S., 10é, § 25.) And that provision was entitled to the construction which required six full weeks or forty-two days between the first publication and the time of sale. And the legislature, by the provision referred to of the act of 1872, sought to relieve against the defect in the publication of a notice of sale and make it effectual after five years, when it had in fact been published for six weeks successively, although, or when less time than forty-two days had intervened between that of the first publication and the sale, and for that purpose the remedy depending upon that question was confined to five years. This purpose might have been more clearly expressed than it is, but in view of all the provisions of the acts referred to, and particularly of this section, it sufficiently appears to fairly show that such was the legislative intent, although a literal interpretation may be given to this provision standing alone of broader import. Such intent is the controlling guide to the construction of a statute when it can be ascertained from its provisions and apparent purpose as a whole. This matter of notice of sale has no importance in a collateral proceeding or action. When the tribunal has acquired jurisdiction of the subject-matter and parties, the proceedings in other respects are not subject to collateral attack. This provision was wholly unnecessary for the purposes of protecting those claiming under such a sale in an action of ejectment either by or against them. It would be treated in such case as. an irregularity, which could be available only in a direct proceeding to set aside- the sale. And it would seem that this was the remedy sought to be defeated after five years, rather than a limitation of the time within which an action must be brought to recover the possession of lands sold and conveyed by virtue of a void proceeding. Such limitation of the right to recover the possession of lands and thus defeat a title can hardly be said to have been designed to be made an exception to all legislation on the subject of the limitation of actions relating to and affecting title to such property. It seems to us that it would be unreasonable to take such a view of this statute, or to give it a construction or effect beyond that of obviating the defective publication of sale so as to-deny a remedy based upon that after the prescribed time. The system of statutes for protection of purchasers embraced in Laws of 1850 (chap. 82), and those amendatory, of 1869 (chap. 260), 1872' (chap. 92) and 1878 (chap. 129), were deemed necessary and properly so, to give more confidence in titles derived from those sales, to aid them by presumption and shift the burden of proof on those seeking to impeach them, and to disregard and overcome irregularities and informalities and even some defects which may have been deemed jurisdictional to the extent to which the provisions could be deemed to apply, but they have not been construed to overcome essential jurisdictional omissions which substantially affect and defeat the opportunity of those interested in the property to be heard.

But it is contended by the defendants’ counsel that the surrogate had the right to assume that the plaintiff was not living when the proceeding was commenced, because in the affidavit made in March, 1871, of service of a citation to show cause why an administrator should not be appointed, it was.stated that “ it was reported that the said Charles Jenkins (the plaintiff) was dead, by his friends, and that his last place of residence could not be ascertained.” This was not sufficient to permit the presumption of his death in the proceeding in question.

The view taken of this case, as presented by the evidence, leads to the conclusion that the motion for a new trial should be granted, costs to abide event. '

Barker and Correct, JJ., concurred ; Haight, J., not sitting.

Motion for new trial granted, with costs to abide the event.


author: JBradley, J.:

text:
    In the Matter oe the Application oe the NEW YORK,. WEST SHORE AND BUFFALO RAILWAY PANY, Respondent, to% Acquire- Title to Real Estate oe ELIZABETH HART and Others, Appellants.

      Appraisal of damages for the taking of land — appointment of a commissioner who is not a freeholder — right of parties to waive the eri'or — when the court will not raise an objection waived by a gua/rdian ad litem.
    Upon an application for the appointment of commissioners to appraise the damages to be awarded for the taking of land, one of the persons, whose name had been proposed by an attorney for one of the landowners, was, with the assent of the other landowners, appointed a commissioner. After the report had been made it was ascertained that this person was not a freeholder.

      Held, that in the absence of any allegation of improper conduct on his part the court properly denied a motion made by one of the parties who had consented to his appointment to have 'the report set aside and a new commissioner appointed.
    That the court at General Term would not raise this objection in behalf of an infant owner whose guardian ad litem had failed to raise it below.

      Qumre, as to whether the-action of the commissioners should be reviewed at the General Term by an appeal from the appraisal and report of the commissioners, or by an appeal from the order confirming the same.
    Appeal from an order made at the Erie County Special Term, confirming the report of commissioners in proceedings taken by petition of the New York, West Shore and Buffalo Railway Company, to acquire for its road land in the city of Buffalo. The appellants, Elizabeth Hart and George S. Hart, had an estate in the premises. The appellant, Frank L. Hart, a minor son and heir apparent of the latter, is about fifteen years of age and has no general guardian. Richard E. Windsor was a tenant for years. The minor appeared by a guardian ad litem, duly appointed, and the other parties appeared by attorneys.
    One of the commissioners (Welch) appointed was not a freeholder at that time. He and the two others were appointed by the consent of the attorneys for all the parties. The commissioner Welch was one of those proposed by the attorney for Windsor with the consent of the attorneys for the appellants. At that time it was not known to any of the attorneys that Welch was not a freeholder. The hearing was had and the report of the commissioners made, and afterwards the fact was ascertained, and on tlie hearing of the application, for confirmation it was, on that ground opposed, and a motion was made by the appellants Elizabeth and George S. Hart, to so correct the order appointing the commissioners as to make that fact appear in the recital.
    The motion was denied and the report confirmed. Elizabeth and George S. Hart appeal from both branches of the order, and Frank L. Hart appeals from the order of confirmation only. The notices in terms express no appeal from the appraisal and report. Windsor does not appeal. Since the appeals were taken a receiver of the railway company has been appointed.

      Stephen Lockwood, for the appellants Elizabeth and George S. Hart.

      Wcurren F. Miller, for the appellant Frank L. Hart.

      Ansley Wilcox, for the respondent and receiver, etc.
   JBradley, J.:

The evidence taken before the commission fairly justified their award. The contention of the counsel for the appellants in that respect is not sustained. In fact it appears that Elizabeth and George S. Hart entered into a contract with the railway company, prior to the institution of this proceeding, to sell and convey to it the premises in fee, free and clear from all incumbrances, and to convey them by full covenant deed for $8,000, but the circumstances on the hearing tend to show that it was designed to be subject to the lease held by Windsor. The award was for $9,500, of which $1,500 was awarded to the latter. It appears that the title was in such situation that it was deemed necessary to take this proceeding to perfect it.

The counsel for the respondent contends that the notices of appeal are defective and insufficient as they do not purport to take an appeal from the appraisal and report, and that the appeals are to the General Term merely. The statute provides that appeals in such cases may be heard at General or Special Term. (Laws 1850, chap. 140, § 18, as amended by Laws 1876, chap. 198, § 1.) - It is usual to hear the appeals at General Term, and it cannot be said the petitioner is prejudiced by the notice of appeal if it may be deemed restrictive in respect to the former, but it is not clear that the terms of them have that effect. The statute provides for an appeal from the appraisal and report and not from the order of confirmation. The appeal to review the appraisal by commissioners does not come within the general provisions relating to appeals in special proceedings. The statute under which this proceeding is taken creates the governing system to the extent covered by its provisions. (In re N. Y. C. R. R. Co. v. Marvin, 11 N. Y., 276 ; Matter of D. and H. C. Co., 69 id., 209, 211.) And it provides for a review of the action of the 'commissioners by appeal from the appraisal and report. The appeals, therefore, may not be effectual to review their action in that respect. It is, however, unnecessary to determine that question in this case, as we see no occasion to disturb the report for error on the hearing or in the appraisal. This is a special proceeding, and in so far the statute referred to fails to provide for review of orders or proceedings in it, the provisions of the general statutes on that subject are applicable and permit a review of orders.

The appeal from the order of confirmation may bring here for review anything involved which would not necessarily come within an appeal from the report and appraisal of the commissioners. The objection here made is that one of the commissioners was without the requisite qualification. ■ If that question was raised in the Special Term and there passed upon, there is no apparent reason why it may not come here by appeal from the order of confirmation of the report. It does not appear that the question was raised on behalf of Frank L. Hart at Special Term. But his infancy requires the court to see that his interests were not prejudiced although the steps were not taken .in the proceeding in his behalf which might be required of an adult to raise the question. But in doing so reference is to be had to his substantial rights. And if it fairly appears that they have not been prejudiced by the action of the tribunal, if the irregularity or error be such as might be waived as against a party of full age, by omission to raise the question at the proper time, the proceedings will not in such case be set aside. (3 Pomeroy Eq. Jur., § 1307; Lefevre v. Laraway, 22 Barb., 168; Sherman v. Wright, 49 N. Y., 227; Howell v. Mills, 53 id., 322.) Nothing appears going to impair the judicial quality, intelligence or fitness of the commissioner in question for the duties of the position or’ in any manner reflecting on his conduct in the proceeding, but so far as any impression is given of him and of his action it is such as tends to show that the interests of the infant party were not prejudiced. And there appears no occasion to assume in his behalf to raise the question here, which his guardian ad litem did not see fit to urge on the application to confirm the commissioner’s report. But the point was there distinctly made by the other appellants, and their counsel urges here that the order appointing the commissioners should have been set aside, and new ones appointed because one of them was not a freeholder. _

The statute provides that the court shall make an order for the appointment of three disinterested and competent freeholders.” (Laws of 1850, chap. MO, § 15, as amended by Laws of 1851, chap. 282, § 2.) Limitation of the legislative power by the Constitution requires that the appointment be made by the court. (Const., art. 1, § 7.) The appointment of the commissioners is not jurisdictional, that is given by the petition from which the. court derives power to act. When that is presented the proceeding is commenced, and jurisdiction acquired if it is what the statute requires. But strict compliance with the statute at every step peremptorily required by it in the proceeding to render the result effectual is necessary unless in some manner waived by the parties affected by it. But after jurisdiction is acquired such strict observance may be waived. The parties might dispense with the quality of freeholder of the commissioners; and the question here is whether that was done in respect to the commissioner Welch, or whether the appellants under the. circumstances are estopped by the recital in the order. This may be accomplished by negligence as well as by express waiver. In this case the appellants through their attorneys not only consented to his appointment, but he was proposed by them and selected on their suggestion. The attorney for the adult appellants now says he did not then know that he lacked that qualification, nor did the attorney for the petitioner. He was appointed, the hearing was had and the report of the commissioners made. No inquiry was made, nor were the appellants or their attorney misled by the petitioner or anybody else. It was a mere want of information which might have been obtained before the commissioners were appointed or before the hearing was had; and there is no reason given for the suggestion of him, or for consenting to his appointment as commissioner, which affords any excuse for the late objection.

While waiver is not to be inferred it will be implied when the proof furnishes a state of facts which requires it. And such implication may arise from an omission to object when the occasion gives opportunity, as well as by express consent. (Browning v. Wheeler, 24 Wend., 258, 259 ; Howard v. Sexton, 1 Denio, 440 ; People ex rel. Smith v. Taylor, 34 Barb., 481; Cole v. Van Keuren, 51 How., 451; Hilltown Road, 18 Penn. St., 233 ; Walker v. B. and M. R. R. Co., 3 Cush., 1 ; Wassum v. Feeney, 121 Mass., 93 ; King v. Sutton, 8 Barn. & Cress., 417; Johns v. Hodges, 60 Md., 215; 45 Am. R., 722.)

It seems very clear that the appellants’ right to make the objection was waived and gone, to raise the question after the hearing was had and the report made. If anything appeared relating to the judicial unfitness or the conduct of the commissioner, or might be inferred which could actually tend to prejudice the appellants, a different question might be presented. There is nothing in the constitutional limitation upon legislation requiring that the appointment be made by the court, which defeats the right of the parties to consent to and propose the names of persons to the court, or the effect of such consent upon those giving it.. There are some things so repugnant to the idea of justice, that they cannot be waived by the parties, nor can the result be supported by their consent. And such is the rule applied to a judge disqualified by reason of consanguinity to one of the parties. The emphatic prohibition of the statute declaratory of the common law in that respect (2 R. S., 275, § 2), renders a judicial determination of any court held by a judge so disqualified, void. (Oakley v. Aspinwall, 3 N. Y., 547; Chambers v. Clearwater, 1 Abb. Ct. App. Dec., 341; S. C., 1 Keyes, 310.) But that rule has no application here. No reason appears for disturbance of the action of the commissioners or the confirmation of their report.

The order should be affirmed.

Barker, J., concurred ; Haight, J., not voting.

Order affirmed, with ten dollars costs and disbursements.


author: Bradley, J.

text:
    HYLAND A. WEED, as Administrator, etc., of CYNTHIA A. PAYNE, Deceased, Respondent, v. ALONZO HORNBY and IRENE M. HORNBY, his Wife, Appellants, Impleaded, etc.

      Might of a mortgagee to pay taxes to preserve his lien.

    The owner of an undivided half interest in real estate is not under any obligation to one to whom he has mortgaged his said one-half interest to pay the whole tax levied upon the premises, but is only bound to pay one-half thereof, and in case the mortgagee pay the whole of the tax in order to preserve his lien, he will only be allowed to recover one-half of the amount so paid from the proceeds of the sale arising upon a foreclosure of his mortgage.
    Appeal from a judgment in favor of the plaintiff, entered on the report of a referee.

      Ellsworth (& Potter, for the appellants.

      Wm. Porter, for the respondent:
   Bradley, J.

The defendant Robert T. Payne made to his father his bond with condition to pay semi-annually to him during his life, and after his death to his wife, if she survived him during her life, or until she remarried, the interest on $1,500, and then the principal sum to his executors or administrators. The father afterwards died leaving his wife surviving him, and his will by which he appointed the defendant Whiting executor of it, to whom letters testamentary were duly issued. The obligor and wife then made to the executor as such a mortgage on the premises in question to secure the performance of the unexecuted condition of the bond. The widow of the obligee died in July, 1880, unmarried, and there was then remaining due to her of the interest on the bond $858.13. Letters of administration on her estate were issued to the plaintiff. He as such administrator requested thp executor Whiting to take proceedings to collect the moneys secured by the bond and mortgage and which were due to his intestate at the time of her death, .which he declined to do. Thereupon he brought this action to foreclose the mortgage making the executor a party defendant, and by the complaint asks judgment that out of the proceeds of the sale he be paid the amount so due his intestate, and the executor be paid the principal sum, etc. The defendant Alonzo Hornby had purchased the premises on foreclosure sale of a mortgage subsequent to the one in question, and Irene M. Hornby was his wife. Those two defendants alone defend. Judgment was recovered for the relief prayed for in the complaint. The defendants contend that the plaintiff’s intestate had no relation to the bond and mortgage to' enable the plaintiff to maintain the action.

By the terms of the bond the interest was payable to the plaintiff’s intestate. • She had the right to demand and receive it from the obligor. And the unpaid interest which accumulated prior to her death, the plaintiff as administrator was entitled to receive from him. The mortgage was taken to secure the payment of that as well as the principal. And the plaintiff had the right to have the enforcement of that security and avail himself of it to collect the money due him. (1 R. S., 737, § 133; Waterman v. Webster, 33 Hun, 611-616.)

The defendant Whiting as executor having declined to take proceedings to foreclose the mortgage or to join with the plaintiff in an action for that purpose, the latter clearly had the right to bring the action as he did, and make the executor a party defendant to the end that the court by judgment might direct the disposition of the proceeds as the rights of the parties interested required. (Bate v. Graham, 11 N. Y., 237; Dewey v. Moyer, 72 id., 70; Everingham v. Vanderbilt, 51 How., 177; Greaves v. Gouge, 69 N. Y., 154.)

It is well settled that parties, having an incidental or contingent interest only in the subject of action to protect, may bring suit in equity on the refusal of those in whom the right to sue primarily exists, joining the latter as defendants (see cases above cited), but here the plaintiff has an interest direct and certain, and no reason is manifest why he may not have the primary right to be a party plaintiff in common and joined with the executor Whiting in an action either on the bond or to enforce the security for its payment.

The testimony of Robert T. Payne, offeree! to prove his letters with inclosures sent to the plaintiff’s intestate and letters received from her by him, was properly excluded. He is a party to the •action interested in its event, and the purpose and effect of the testimony was to prove a personal communication between him and his deceased creditor, that he had paid her money upon the claim in question, and that she "had acknowledged by letters to him its receipt, which comes within the statute. (Code Civ. Pro., § 829; Church v. Howard, 79 N. Y., 415.)

It appears that the executor Whiting paid certain taxes which were liens on the premises. The judgment directed that he be reimbursed out of the proceeds of the sale. The defendant’s counsel contends that this is error. So far as Whiting paid taxes, which were liens upon the mortgaged premises, and which it was the duty of the mortgagor or those holding the legal title under bim to pay, it will be assumed he paid them to protect the security held by him, and he was entitled to repayment out.of the proceeds of the sale. (Silver Lake Bank v. North, 4 Johns. Ch., 370 ; Faure v. Winans, 1 Hopk., 283; Eagle Ins. Co. v. Pell, 2 Edw., 631; Burr v. Veeder, 3 Wend., 412; Brevoort v. Randolph, 7 How., 398; Fleishhaur v. Doellner, 9 Abb. N. C., 372; S. C., 60 How., 438; Marshall v. Davies, 78 N. Y., 414; Sidenberg v. Ely, 90 id., 257.)

The mortgage in question covered only one undivided half of the premises described in the complaint, and the defendant, Robert T. Payne, owned such undivided half as tenant in common with ■another when he gave the mortgage in suit, and the one subsequently given to defendant Alonzo Hornby under which the latter took the legal title to such half only as tenant in common. The evidence is that these taxes so paid by Whiting were liens on the whole premises, and there is no evidence tending to prove that they were less than the entire amounts of the taxes of those years assessed on the whole premises. Hpon that evidence the referee found that Whiting paid taxes which were a lien on the mortgaged promises amounting,” etc. If the amount so paid was only one-half that assessed on the whole, it was properly allowed. The assessment was of the whole premises, and the tax levied in like manner so that it was' a lien on the entire and every part of the land. It cannot be presumed on the evidence that the amount so paid by bim was only one-half. As the fact appears by the record, the question arises whether the executor can charge on the undivided half or on the proceeds of the sale of it, the amount paid of taxes assessed and levied on the whole, inasmuch as the mere payment of one-half would, not have the effect to sever and relieve the mortgaged undivided half from the lien. It may be observed that the right to pay and discharge a lien to protect security and charge another, rests upon the duty and liability to pay and default of such other person, as between the parties, as well as upon the right or necessity to thus give protection.

There was no duty or liability of the mortgagor or of the defendant Hornby to pay any more than the amount of the assessment and levy on the undivided half. And that was one-half of the tax assessed on the whole. And it is difficult to see any legal reason for charging the entire tax so paid on- the proceeds of sale assuming those so paid were such. It cannot be supported by the fact that the mortgagor or the defendant holding the legal title under him neglected to have the assessment made to the owners severally upon their undivided halves. The right of redemption from sale of the whole by a tenant in common of his share is provided for by statute. (Laws of 1855, chap. 427, §§ 51, 52.) The amount directed to be paid to the defendant Whiting by way of reimbursement for the taxes by him so paid, is $159.90. In all respects except this one the case was properly disposed of by the referee.

The judgment should be reversed and a new trial ordered, costs to abide event, unless the plaintiff stipulates to deduct seventy-nine dollars and ninety-five cents as of the date of the judgment from the amount by it directed to be paid to the defendant Whiting for taxes, etc. And if the stipulation be so made, the judgment so modified should be affirmed, with costs.

Barker and Haight, JJ., concurred.

So ordered.


text:
    LOUISE DECKER, Respondent, v. JOEL GAYLORD and ALBERT GAYLORD, Executors, etc., of HORACE GAYLORD, Deceased, Appellants.

      Slander — privileged communication— what is — when actual malice must he proved — an unsustained justification is not evidence of malice.

    Communications made in good faith and in a proper manner to a school commissioner by a resident of the district, charging the woman then teaching in the district with being unchaste and using profane and obscene language, are privileged.
    The presumption is that the person making such a communication is acting in good faith, and the burden of proving that he acted with actual malice- rests upon the party seeking to hold him liable for slander.
    The falsity of the charge is not of itself sufficient to raise an inference of malice.
    The allegation of the truth of the charge in the answer, by way of justification, is not evidence of a malicious intent even though the charge he foitnd to be untrue.
    Appeal from a judgment against the defendants’ testator, entered on a verdict rendered at the Erie Circuit, and from an order denying a motion for a new trial made upon the minutes of the justice before whom the action was tried.

      A. C. Galkins, for the appellants.

      Adelbert Moot, for the respondent.
   Bradley, J.:

The action is slander, and the words alleged to have been spoken by the defendants’ testator of the plaintiff are to the effect that she was of bad character and licentious and that she used profane and obscene language. The answer denied and justified the slander as charged and alleged that the communication was privileged.

The plaintiff was then teaching school in the district of which the defendants’ testator was a resident. And the words were by him spoken to the school commissioner in whose official district was embraced that school district.

The evidence tended to prove that the language used by the testator in bis interview with and communication to the commissioner was such as to impute unchastity to the plaintiff and sufficient to afford to her a cause of action if false, unless-priviloged. (Code Civ. Pro., § 1906.) The commissioner was a proper person to receive information relating to the moral character and habits of the school teacher in the district. It was his duty to examine charges made in that respect, and if after due hearing had, sustained, to annul certificate, etc. (Laws 1864, chap. 555, tit. 2, § 13, sub. 7.)

The defendants’ testator was lawfully permitted, in good faith and in a proper manner, to make communication to the commissioner in respect to the conduct and moral character of the school teacher of his district and to state what he honestly believed to be the truth, although defamatory of her character. And the presumption is that a eommunition made by a person authorized by his relation to the subject, or to the society interested, to a person or body having authority to act in the premises, is made in good faith, and his liability to the party aggrieved is dependent on actual malice which the plaintiff in an action therefor assumes the burden to prove. The falsity of the charge is not sufficient to raise inference of malice. (Lewis v. Chapman, 16 N. Y., 369; Fowles v. Bowen, 30 id., 20; Ormsby v. Douglass, 37 id., 477; Hart v. Gumpach, L. R., 4 P. C., 439; 4 Moak’s Eng. R., 138, 156; Laughton v. The Bishop, etc., L. R., 4 P. C., 495; 4 Moak’s Eng. R., 162,174; Harwood v. Keech, 4 Hun, 389.) Nor is the alleged truth of the charge in the answer, by way of justification, evidence of malicious purpose although the charge be untrue. (Wilson v. Robinson, 7 Ad. & Ell. [N. S.], 68; Klinck v. Colby, 46 N. Y., 428.) .But the circumstances attending the speaking of the words, the manner in which it is done, and the fact that the communication is purposely made in the presence and hearing of others, may furnish evidence of malice for the consideration of the jury and enable them to impute to him improper motives. (Padmore v. Lawrence, 11 Ad. & Ell., 380; Fountain v. Boodle, 3 Ad. & Ell. [N. S.], 5; Fryer v. Kinnersley, 15 C. B. [N. S.), 422.) And it is difficult to define any rule of limitation to the extrinsic evidence admissible'to prove malice, if it be such as tends to show what may have actuated the defendant in making the charges in question. (Odgers on Libel and Slander, 271.) These suggestions have reference only to qualified, as distinguished from absolute, privilege. This case comes within the former, and it will be assumed that it required to support the action evidence that the words were spoken with malice; and being untrue it was unneceseary for the plaintiff to prove want of probable cause. (Howard v. Thompson, 21 Wend., 319.) The statute does not provide any particular manner for presentation of charges, but it seems that the commissioner required charges to be made in writing and so advised the defendants’ testator; and no proceedings were taken on those made, and none were afterwards had. The omission of the testator to subsequently institute any proceeding for that purpose has alone no significance on the question of motive.

The main question arises on the exception to the refusal of the court to charge as requested, that if the defendant, believing that he was trustee of the district, went to the commissioner and in good faith stated what he believed to be true about the plaintiff, it was a privileged communication.” There is some evidence tending to prove, that prior to the occasion in question, at a school district meeting, the vote of a previous election of trustee was in terms rescinded and the defendant’s testator elected trustee. He was advised at this interview with the commissioner and by the latter, that the action of the meeting was ineffectual to divest the other trustee of the office or to invest him with it, but it does not appear at what stage of the interview, with the commissioner this part of the conversation occurred, nor does it appear that at the time he made the charges he did not believe he was trustee.

In the view taken of the case, the fact whether he believed himself trustee or not has no importance, but was wholly immaterial for the purposes of the question of privilege. The qualification embraced in the request had the legitimate effect only to narrow and restrict the circumstances which would enable the jury to find that the communication was privileged, and thus simply prejudiced the defendant, and did not in any other respect embarrass the request. It was an unnecessary qualification and was more favorable to the plaintiff than it would haye been with the omission of that fact. In that view the request was not rendered improper by the inclusion of the immaterial fact.of the limitation. And for the purposes of the question here the request may be treated the same •as if that had not been included, inasmuch as the conclusion must follow in either event on the other facts embraced in it. This request, fairly construed, included all the jury might find the testator then said about the plaintiff. And his belief that it was true, and bis good faitb in making the statement constitute all the elements requisite to the privilege. It is difficult to see any reason why be was not entitled to the instruction requested, unless it was covered by the charge as made, or malice on the part of the defendant was conclusively established. The court had not covered this proposition, nor did the court instruct the jury in effect that if they found the words were spoken, as claimed and proved on the part of the plaintiff, they were in any event privileged if not true. And while the evidence may be sufficient to present the question of malice of the defendant as one of fact for the jury, it was by no means conclusively established. The defendant, therefore, bad the right to have the jury advised what was required to render bis communication to the commissioner a privileged one; that it was not dependent on the truth of the words spoken, but only on bis belief that they were true and the good faitb of the communication.

This proposition is so well settled that no discussion of it as applied to this case seems necessary. (Halstead v. Nelson, 24 Hun, 395; O'Donaghue v. McGovern, 23 Wend., 26; Bradley v. Heath, 12 Pick., 163 ; Gassett v. Gilbert, 6 Gray, 94; Hatch v. Lane, 105 Mass., 394; Vanderzee v. McGregor, 12 Wend., 545; Streety v. Wood, 15 Barb., 105 ; Whiteley v. Adams, 15 C. B. [N. S.], 392; Dawkins v. Lord Paulet, L. R., 5 Q. B., 102.) The relation of the defendant to the school district and school enabled him to deem it bis duty to communicate to the officer having the power and charged with the duty to act upon charges made against the moral character of the teacher, and make the result of bis examination effectual either to sustain or disqualify the latter to continue as such in the district.

The welfare of district schools and of school districts require that the honest and fair exercise of this privilege should have protection; and the law, as it should, will condemn the act and afford redress when under the guise of the privilege the opportunity is taken to vilify and dfefame a teacher for purposes selfish and malicious. (Harwood v. Keech, 4 Hun, 389.) But when the relation to the district of the parties to the communication, and their duties are those before mentioned, the presumption arises that the charges are made in good faitb and with a sense of duty unless circumstances attendant or extrinsic tend to the contrary, and the burden is on the plaintiff to impugn by evidence the motives of the party making them. (Shwrüeffl v. Stevens, 51 Yt., 501; 31 Am. ft., 698; Brow v. Hathaway, 13 Allen, 239; Thorn v. Moser, 1 Denio, 493; Taylor v. HawTcms, 16 Ad. & Ell. [N. S.], 308,321; Fowlesv. Bowen, 30 N. Y., 20 ; Somerville v. Hawhins, 10 C. B., 583, 590; Harris v. Thompson, 13 id., 333.) If these views are correct it follows that the defendants’ exception to the refusal to charge, as requested was error and so important that it cannot be disregarded. No other exception was well taken on the trial. The evidence that the teacher had punished the defendant’s grandson who lived in his family was, with other circumstances, competent on the question of malice for the consideration of the jury if they found that he had knowledge of the fact. And the evidence offered to prove that the windows of the school-house and the door of the stove were taken out and away was not competent, unless it appeared that the defendant was in some way connected with the act, or was to some extent responsible-for it. If that had appeared the fact would have been pertinent on the question of motive and might have enabled the jury to say that it tended to show malicious feeling against the plaintiff. There was, however, no evidence to warrant the conclusion that the defendant in any manner 'participated in the act of removal or to any extent caused it to be done. That evidence, therefore, was entitled to no consideration. But that did not necessarily make the exception to the admission of the testimony available to present-error. The question whether anything happened to the school-house after the plaintiff was employed to teach was objected to “ as incompetent and immaterial.” The objection was overruled and exception taken. If the evidence might in any event become competent the question was one of order of proof and discretionary. (Dunn v. People, 29 N. Y., 523.) And if the objection had been specifically made that it did not then appear that the defendant was-chargeable with the act, the court might have directed that the introduction of the evidence offered be postponed, until the introduction of other proof tending to show some connection of the defendant with the act, or have required the counsel to state whether he proposed to add such testimony. After the evidence was in and there was a failure to show any relation of the defendant to the transaction the-remedy, was by motion, to strike it out, or by request that the court direct the jury to disregard it. (Murphy v. Boker, 28 How., 251.)

There was no motion made to strike it out. The defendants counsel did ask the court to charge the jury to disregard that evidence, and the court thereupon stated that he had “virtually .charged that already.” The court had charged the jury in effect that the evidence was admitted with a view to ascertain whether the act of taking out the windows could be traced to the defendant, and advised them that there was no evidence by which they could find that it was done by the defendant, and that he regarded “ it as of little importance and perhaps having no bearing upon the case.”

If it may be insisted that the court did not, as unqualifiedly as he should have done, withdraw the evidence from the consideration of the jury, the question is not presented by any exception. And it may be assumed that the defendants’ counsel was content with the response made by the court to his request in that respect. Ve have considered all the questions of fact, and concluded to determine them in favor of the plaintiff.

The judgment and order should be reserved. And because the original defendant has died no new trial can be had, nor can the defendant have judgment for cdsts against the plaintiff.

Barker, J., concurs; Haight, J., not sitting.

Judgment and order reversed on questions of law. The original defendant having died no new trial is ordered. No costs allowed as against the plaintiff.