author: Hatch, J. Titus, Ch. J.

text:
    The People ex rel. William K. Churchyard, Resp’t, v. The Board of Councilmen of the City of Buffalo, App’lt.

      (Superior Court of Buffalo, General Term,

      Filed August 3, 1892.)

    Municipal corporations—Buffalo—Salaries of police commissioners —Laws 1892, Chap. 879.
    Under the charter of the city of Buffalo passed in 1891 the common council was composed of the board of aldermen and the board of councilmen, and it was required to fix the salaries of appointive officers by ordinance, which was to be presented to the mayor, and if vetoed was to be returned to the board of aldermen for further action. Provision was made for joint sessions in certain cases, but the acts of such sessions were not subject to review by the mayor. By chapter 379, Laws of 1892, it was provided that the police commissioners should receive such annual salary as might be fixed by the common council at a joint session, and that the said council should immediately determine the amount of such salary. Held, that the action of such joint session was not subject to review and that the mayor had no power to veto the same. •
    (Titus, Oh. J., dissents.)
    Appeal from an order directing a peremptory writ of mandamus to issue, requiring defendant to approve of certain warrants drawn in favor of the relators in payment of salary as police commissioners of the city of Buffalo.
    The following is the opinion at special term:
    White, J.—The petitioners are the police commissioners of the city of Buffalo, and have instituted this proceeding to compel the board of councilmen to approve a resolution adopted by the board of aldermen on the 23d day of May, 1892, directing warrants drawn in favor of the petitioners for their salaries at the rate of $3.000 per annum each, from and after May 6, 1892.
    So far as the questions involved in this proceeding are concerned, the present charter of the' city of Buffalo (except as to the amendment passed by the legislature in 1892, which forms the basis oí the claim herein made by the petitioners and which will be more particularly referred to hereafter), became of force on March 27, 1891. The charter provides (as originally enacted), that the legislative power of the city shall be vested in a common council composed of a board of twenty-five aldermen and a board of nine councilmen; that no action of the common council shall be of force unless it originated in the board of aldermen and be approved by the board of councilmen; that a majority of all the aldermen elected shall constitute a quorum of the board of aldermen, and that six councilmen shall constitute a quorum of the board of councilmen; that a vote of the common council when prescribed by the charter requires such vote in each board that the common council shall fix the salaries of all appointive officers, not therein otherwise fixed or provided for, by ordinance; that such salaries shall be fi.xed before the appointment of such officers and that no change shall be made in such salaries during their term of service; that any ordinance or resolution of the common council fixing salaries of such officers must be presented to the mayor for his action thereupon before it shall be of force; that if he approves it he shall sign it; if he disapproves, he shall return it to the board of aldermen, where it originated, with his objections thereto; and that if the ordinance or resolution objected to by the mayor be again passed by the two boards by the requisite number of votes in each, it becomes of force, otherwise the veto of the mayor defeats it. By the terms of the charter (as originally enacted) .it is further provided that commissioners of police shall thereafter be appointed by the mayor for terms of six years.
    The petitioners were the police commissioners of the city of Buffalo in office at the time when the present charter was adopted, having been appointed to' those offices under and by virtue of chapter 436 of the Laws of 1880, as amended by chapter 359 of the Laws of 1883, which established a police department in Buffalo. They had, at the time the present charter took effect, a fixed and limited term of service under the statutes of 1880 and 1883, and by the terms of the charter were continued in office for their unexpired terms, and were to continue to receive the same salaries as by law they were then entitled to receive under the prior statutes, which, as fixed by the statutes, was $1,500 each per annum. The petitioner Illig was appointed for a full term of six years, May 7, 1889, and his term of service will, therefore, expire May 7, 1895. The petitioner Churchyard was appointed December 30, 1889, to fill a vacancy for the unexpired term of his predecessor, which will expire May 7, 1893. The statutes of 1880 and 1883 continued to be law governing the compensation of the petitioners until the enactment by the legislature of the present charter of the city. On February 8, 1892, an ordinance was adopted in the manner prescribed by the charter as it then existed, fixing the annual salaries of the petitioners at the sum of $1,500 each.
    While it is apparent that the charter, as originally enacted, contemplates joint sessions of the two boards constituting the common council, and that the common council thus organized shall exercise such powers as are expressly conferred upon it by the charter, and such others as are necessary to the performance of its corporate duties and essential to the declared objects and purposes of the corporation, whether conferred in terms or not, it is equally plain that the intention of the legislature was to require that all legislation by the common council concerning salaries of appointive officers should originate' in the lower or board of aldermen, and nowhere else, and that all such legislation should be subject to th,e consideration of the board of councilmen, ,and to the right of veto by the mayor.
    On April 27, 1892, the legislature passed chapter 379 of the Laws of 1892, as an amendment to the charter. The effect, and the only effect, of this amendment was to change the mode or plan of fixing the salaries of the petitioners and their successors in office, and to require that immediately upon the passage of this amendment the two bodies composing the common council should meet in joint session and determine the amount of salaries which should be thereafter paid to the petitioners and their successors in office. Pursuant to this amendment, the common council met in joint session on the 6th day of May, 1892, with eight councilmen and twenty-two aldermen, present, and by a vote of two councilmen and fifteen aldermen adopted a resolution fixing the salaries of the petitioners at $3,000 each. This action of the common council in joint session was presented to the mayor, who disapproved and returned the same in due time to the city clerk, with his objections thereto. The city clerk laid said resolution with' the objections of the mayor thereto before the board of aldermen at its next regular meeting thereafter. The board of aldermen thereupon declined to take any action on the resolution so returned to it, on the ground that the action of the common council fixing and determining the salaries of the petitioners at $3,000 each was conclusive upon the mayor, and that he had no right or power to veto the same, and then proceeded to direct warrants drawn in favor of the petitioners in payment of their respective salaries at the rate of $3,000 from May 6, 1892. This action of the board of aldermen was presented to the board of councilmen, and it thereupon disapproved of the action of the board of aider-men in directing warrants to be drawn.
    It may appear from the face of the record before us that the board of aldermen, by its action, intended to fix the salaries of the petitioners at $3,000 from January 1, 1892, but such was not the intention. It is conceded by both parties that the intention was, and this proceeding is to be disposed of on the assumption, that increased compensation is sought and to be made, if at all, from May 6, 1892, only.
    The first question presented for our solution is whether or not the action of the common council in determining the salaries of the petitioners is subject to the right of veto by the mayor.
    The only right of veto possessed by the mayor is such as he derives from the provisions of the charter. As the charter stood before the amendment of 1892, the right was fully recognized and the mode or manner of exercising it was carefully provided for and prescribed in a case like the one before us. The compensation of appointive officers not otherwise provided for in the charter itself was to be fixed in the first instance by the adoption of an ordinance in the board of aldermen, which ordinance must be presented to the board of councilmen for consideration by it, and was also subject to veto by the mayor, and in case of his dis- ' approval it was to be reconsidered by both boards with a view to acquiescence in or override the objections.
    The amendment of 1892 simply and arbitrarily requires- that the common council shall meet in joint session, and at such session determine, that is, come to a definite and final conclusion, in the manner therein prescribed, as to what salaries shall thereafter be paid to the petitioners, and this to my mind excludes the idea of a revision or rejection by any other body or by any person. The determination was made strictly in the manner prescribed by the amendment. The action of the common council in joint session cannot be said to have originated in either board; it could not, thereafter, be lawfully considered by either of the boards separately, for the reason that no provision is made therefor. Section 18 of the charter has no application, because the return by the mayor of an ordinance or resolution disapproved by him to the board of aldermen pursuant to the provisions of that section is contemplated only in cases where such ordinance or resolution originated in that board. In fact there is no provision of law for the reconsideration anywhere of an ordinance or resolution adopted or passed by the common council in joint session of its two boards, nor is there any provision of law conferring the right to veto in such cases; no such right is necessarily implied, and therefore it does not exist. Ho such thing as an absolute unqualified right of veto exists in the executive head of any municipal corporation in this country; constitutional restrictions always accompany and control its exercise. If it were true that §§ 5 and 18 of the charter were applicable to the petitioners (which I think is not the case), then clearly there would be a clear and manifest repugnance between the amendment of 1892 and those sections of the charter as to the manner of fixing and determining the salaries of the petitioners; they cannot be reconciled, and as to the question we are now considering, the later act or the amendment must prevail. It seems to me that to hold in. this case that because the resolution adopted by the common council in joint session was a resolution of the common council, it must be presented to the mayor under § 18 of the charter, would be in violation of the maxim that the law never enacts the perfermance of an idle ceremony.
    The language of the charter conferring the right of veto on the mayor is of - the same import as that used to confer the same right on the president of the United States, governors of states and mayors of cities generally, and that is the only sense in which it can be claimed to be organic. The right of veto is not inherent in the executive head of a municipality like the city of Buffalo.

      The petitioners were originally appointed under chap. 436 of the Laws of 1880, as amended by chap. 359 of the Laws of 1883, which was repealed or superseded by our present charter, except as to the salaries of the petitioners. By these statutes, the salary of police commissioners was fixed at $1,500, payable monthly. The petitioners were continued in office by the charter for their unexpired terms, which are not yet ended, and it provides in terms that they shall continue to receive the same salaries which they were entitled to receive by virtue of the statute of 1880 during the remainder of their respective terms.
    By the charter the common council is authorized to fix by ordinance the salaries of officers not otherwise therein fixed or provided for. The salaries of the petitioners were otherwise therein fixed or provided for, and therefore any ordinance or resolution which the council may or could have passed concerning the compensation of the petitioners would be void, because no ordinance can enlarge, diminish or vary the power of the common council as derived from the charter. The common council has not, and has never had, any authority to fix or determine the salaries of these petitioners, except that conferred by chapter 379 of the Laws of 1892, for the reason that those salaries were fixed and determined by the legislature itself in and by the statutes of 1880 and 1883, and so much of those statutes as fixed and determined those salaries was not repealed or superseded by, but was incorporated into and made a part of the charter as originally enacted, and as has before been said, by the express terms of the charter the power of the common council was limited and restricted to fixing such salaries as were not therein otherwise provided for.
    It is urged by the counsel for the board of councilmen that the legislature has no power to authorize an increase or decrease in the salaries of the petitioners during their term of service, because by the charter it is provided that no change shall be made in the salary of any officer during his term of service, and further, that all appointive officers having a fixed and limited term of service, and holding office when the charter went into effect, shall continue to receive the same salary to which they were entitled.
    These provisions of the charter are subject to repeal, change or modification at the will of the legislature, unless they are within some constitutional prohibition, and they are not. People v. Devlin, 33 N. Y., 269; Mangam v. City of Brooklyn, 98 id., 585.
    The language of the amendment of 1892 is mandatory, and requires that the salaries of the petitioners, immediately upon the passage of that act, be determined; that is, finally and conclusively fixed and settled by the common council in joint session, and the common council has performed the duty enjoined by the legislature.
    As no question is made by the board of councilmen touching the amount of salary to be paid if the court shall find the increase made to be lawful, or as to the propriety of requiring the warrants to be drawn therefor at this time, the writs of peremptory mandamus applied for should be granted.

      Philip A. Laing, for app’lt; Frank G. Laughlin, for resp’ts.
   Hatch, J.

—The relator is one of the police commissioners of the city of Buffalo; his salary was fixed under and in pursuance of chapter 379, Laws of 1892, adopted by the legislature and approved by the governor of the state April 27, 1892. This act provides that: “ The commissioners of police shall receive such annual salary as may be fixed by the common council at a joint session thereof, and the said common council shall, immediately upon the passage of this act, determine the amount of such salary.” This act is an amendment of § 184, Laws of 1891, approved by the governor March 27, 1891, commonly known as The revised charter of the city of Buffalo.” The council met in joint session and determined that the salaries of the commissioners be fixed at the rate of $8.000 per annum, .beginning May 6, 1892, the date of the joint session. After its action, said determination was presented to the mayor of the city for his approval, and was by him returned to the board of aldermen without approval, accompanied by a veto message reciting his objections thereto. The board of aldermen declined to take action thereon and adopted a resolution directing that a warrant for the payment of relator’s salary be drawn in accordance with the determination of the joint session. When this action was reported to defendant it adopted a resolution disapproving of said action and refused assent to the warrants so drawn ; this refusal led to the making of the order-appealed from. By stipulation the questions presented by this appeal are limited to three. The opinion delivered by the learned judge at special term, to my mind, satisfactorily answers all the objections raised, and, ordinarily, further discussion would be-deemed unnecessary, but as one question is pertinaciously and confidently argued on this appeal, a further discussion of it is not deemed out of place. It is formulated in these words: “ That the action of the joint session of the common council in fixing the salaries in question was subject to the veto power of the mayor.”

In disposing of this question a consideration of the veto power, its history, purpose and growth, may aid us in arriving at a correct solution. The word “ veto ” is of Latin extraction, and literally translated reads >“ I forbid,” or “ I deny.” These words have-a singularly ominous sound when they are applied in a democratic government, and at once call attention to the fact, and challenge-the authority,

There are, in constitutional governments, two fundamental theories upon which the grant of the power of veto rests; first,, to preserve the integrity of that branchxof government in which-the vetoing power is vested, and thus maintain an equilibrium of governmental powers; second, to act as a check upon corrupt or hasty and ill-considered legislation. These theories have entered into all debates touching the power. The right, when given at all, is usually lodged in the .executive branch of government. Borne vested it in the Tribunes, and the salutation, “ I forbid,” pronounced by a tribune, stationed at the door of the Boman senate, meeting a bill, nullified it. The crown, in England, possesses the same power. French philosophers exhausted their learning and ingenuity upon the Constitution of 1791, and saw it fall apart for the reason, among others, that the king possessed the power of suspension of legislation, unless adopted by three successive assemblys. The Spanish king might twice refuse his sanction to the action of the cartes before it could find a place in the law, under the Constitution of 1812, and the Norwegian Constitution of 1814 was like it in this respect. The early colonial legislatures felt the same power, both from crown and governor, for it was the practice of the latter to have money orders in his favor injected into or accompany bills to be signed, so that he might receive the former at the time or before he signed the latter, accompaniment was much preferred; while the grievance against the crown found expression in the declaration : “ He has refused his assent to laws the most wholesome and necessaVy for the public good.” It was thought by Blackstone that this absolute power of veto was needful for equilibrium, and so he wrote: 11 Here, then, is lodged the sovereignty of the British Constitution ; and lodged as beneficially as is possible for society. For in no other shape could we be so certain of finding the three great qualities of government so well and so happily united. If the supreme power were lodged in any one of the three branches separately, we must be exposed to the inconveniences of either absolute monarchy, aristocracy or democracy; and so want two of the three principal ingredients of good polity, either virtue, wisdom or power. If it were lodged in any two of the branches; for instance, in the king and house of lords, our laws might be providently made and well executed, but they might not always have the good of the people in view; if lodged in the king and commons, we should want that circumspection and mediatory caution which the wisdom of the peers is to afford; if the supreme rights of legislature were lodged in the two houses only, and the king had no negative upon their proceedings, they might be tempted to encroach upon the royal prerogative, or perhaps to abolish the kingly office, and thereby weaken (if not totally destroy) the strength of the executive power. But the constitutional government of this island is so admirably tempered and compounded that nothing can endanger or hurt it but destroying the equilibrium of power between one branch of the legislature and the rest.” Blackstone’s Commentaries (Chase), 17.

It is to be noticed in this connection that the British constitution makes the crown a constituent part of the legislature which does not find place in this government. The truth of the statement that one generation has not foresight sufficient to legislate for the next finds vivid confirmation from this quotation, for it remains as the fact that since 1692 the right of veto by the crown has not been exercised, and it is asserted by some writers that its exercise at this day would lead to a revolution.

The veto power was' regarded with great distrust and disfavor by the framers of our government, both state and national, and . its right of exercise is by no means universal now. Only one of the original state constitutions, Massachusetts, gave even a qualified veto, while the articles of confederation withheld it entirely,,reaching the other extreme of requiring the assent of nine states to important acts of legislation, thus giving to a minority of five states an absolute right of veto. The happy solution of this ques- ■ tian by the framers of the Federal constitution had for its basis the integrity of the executive branch of the government, and very little consideration was given to the theory of a check upon ill-considered and hasty legislation. As late as 1884, and, so far as I possess information, at this date, Delaware, North Carolina, Ohio- and Bhode Island still withheld the veto power .from the executive, while in eight others a majority vote of the whole number of members elected to the legislature constitutes all that is required to override a veto. By the constitution of 1871, the German Empire vests its legislative power in the Federal Council and Imperial Diet; no mention is made of the Emperor, but in certain specified bills concerning the army, taxes, etc., the proposal of the-Federal council only is accepted, and this gives to the Emperor, as King of Prussia, the right of veto against its action. The-Swiss Federal constitution gives the president no veto power, but in certain cantons the right rests with the voters. In the Kingdom of Poland the objection of a single deputy was sufficient to-i nullify the bill.

This history, and these illustrations, serve to show that the people of all constitutional governments are extremly solicitous and jealous of this power, and' have at all times hedged it about by carefully expressed limitations. Consequently it follows that the right of its exercise by an executive must always be supported by plain and undoubted authority. It has, of recent date, been the gradual and growing belief that this power is wisely placed in-the executive head of municipal authority, not as essential to preserve an equilibrium of governmental powers, but for, almost, the-sole purpose of a check upon corrupt and hasty action and ill-considered legislation. This is not a new idea, but it was not accepted until experience has shown it to be, usually, for the best interests of the people in the government of cities. Franklin long ago-stated, one reason for the lodgment of this power in an executive, “A single man may be afraid or ashamed of doing injustice; a body is never either one or the other, if it is strong enough. It. cannot apprehend assassination, and by dividing the shame among them it is so little apiece that no one minds it.”

While, for these and other reasons, it is doubtless the tendency of modern legislation to bestow this power upon the executive head of municipal government with "much liberality, yet it is equally true, and always to be borne in mind, that the power must be express or necessarily implied, and without it, it does not exist. Dillon on Municipal Corporations, 4 ed., §§ 208-331; Martindale v. Palmer, 52 Ind., 413; National Bank of Commerce v. Town of Grenada, 41 Fed. Rep., 91; MacKenzie v. Tax Collector, 39 La. Ann., 949.

This brings us to an examination of the statute under which the power here exercised is claimed to exist. The charter of Buffalo is an entire scheme for the government of this city; it was. carefully digested and its authors conceived and carried out, so far as they possessed the ability, a complete and connected scheme. The legislative power is vested in a common council consisting of two branches; the mayor is not a constituent part of such legislature. In nearly all .matters this council acts as separate bodies; they act jointly in certain specified cases. Before the amendment which is the subject of examination here, there were two cases which called for joint sessions, one for the election of a city clerk, § 33, the other to fill vacancies in certain elective offices, § 374; but in neither case had the mayor any control over its-action; the action was final. So far as the present amendment is-concerned, there is nothing expressed therein which gives the power of veto to the mayor in terms; it must, therefore, rest, if at all, in implication.

It seems quite clear that the scheme contemplated by this charter was that original action should be taken by the board of aider-men, and then be passed upon by the board of councilmen, which, action was to be subject to review by the mayor, and the scheme, therefore, provides for this and nothing more. Where acts are passed upon by the mayor following this course, definite and precise provisions provide to whom such action shall go, and if adverse to the council’s action, how the objection shall be specified and what action they shall proceed to take and what vote is essential to override the veto.

It is conceded that there is no provision of law which in terms provides for a review of a joint action. But two claims are urged by appellant in answer to this defect: First, that the amendment-is to be treated as an original act, and must be construed in view of the original statute; that as the amendment does not in terms take away the right of veto, and, as it existed before the mayor-had such right, therefore he possesses it now. Second, that even though there be no specific provision for the review of the veto, yet the power is not for that reason taken away.

I am of opinion that the first view is not tenable; that - it places a much too limited significance upon the word “ determine.” This amendment is mandatory. It reads, shall immediately determine the amount of such salary.” They could be compelled by mandamus to assemble and act, and no provision is made, so far as I can find, for a review ; on the contrary, I think the construction must be that it is alone the determination of the joint session which is contemplated and commanded ; that as the charter provides, as we have seen, for a review of separate action, and none for a joint action before this amendment, that when the amendment‘was made the legislature contemplated a change of the system in fixing these salaries so "as to conform to the theory of joint sessions as then existing in the charter, and as no provision was made or contemplated for a review of joint action, and as the amendment does not provide for it, therefore it does not exist.

Under the conditions here adverted to I think the correct construction to be that “ When a general intention is expressed and-also a particular intention incompatible with the general intention, the particular intention is to be considered in the nature of an exception.’’ Hoey v. Gilroy, 129 N. Y., 138; 41 St. Rep., 181; Bork v. City of Buffalo, 127 N. Y., 64; 37 St. Rep., 332. And that such rule is to be applied here.

These salaries can be fixed without the affirmative. vote of a single councilman. Whiteside v. People, 26 Wend., 634; Cushing’s Law & Practice of Legislative Assemblies, §§ 412-414.

If the construction contended for is to obtain, it would not be possible with a veto to work such a result.

I am also of opinion that the second objection is equally unsound ; for if there be still left the power of veto and no power of review, it follows that the veto is absolute and the action is nullified. This result carries ns far beyond any veto power granted by the charter to the mayor upon any act of the council.; for, at the most, he has only a suspensory power which may be overridden. If now we say that the power is imposed by reason of a prior grant of it, we find ourselves confronted with the condition that while the actual grant is limited, the implied power is absolute. It is needless to add that such implication ought never to be reached by any proper construction of power.

I am therefore led to the conclusion.that the mayor possessed no power of veto of this action, and that the order appealed from must be.affirmed, with costs.

Like order in the case of Illig.

Titus, Ch. J.

(dissenting).—The questions here raised are brought before this court by an appeal from an order of the special term granting a peremptory writ of mandamus, directed to the board of councilmen of the city of Buffalo, requiring said board to approve of a certain resolution adopted by the board of aldermen on the 23d day of May, 1892, directing warrants drawn in favor of the relator and Frank J. Illig for their services as police commissioners of this city, at the rate of $3,000 per annum.

By chapter 105 of the Laws of 1891, the legislature enacted a new charter for this city. It became a law on the 27th day of March, 1891. The provisions making a general change in the city government did not take effect until the 1st Monday of January, 1892, but titles 7 and 8 of the act took effect and became operative at once. These titles, relating to the department of police, are substantially a re-enactment of chapter 436 of the laws Of 1880, as amended by chapter 359 of the Laws of 1883, establishing a police department for this city. The salary of the police commissioners was fixed by § 36 of the act of 1880, as amended by § 8 of the Laws of 1883, at $1,500 a year, and was the salary they were entitled to receive at the time the present charter went into effect

No sum was named which they should receive under the new Oharter, but § 474 provides that all appointive officers having a fixed and limited term of service, and holding office when this jact takes effect, shall during the terms for which they were appointed receive the salary they were entitled to receive when the charter takes effect; so that the police commissioners were entitled to receive $1,500 a year as their lawful salary, because that, was the amount they were receiving at the time the act took effect. By § 184 of the charter, it is provided that the commissioners of police shall receive such annual salary as may be fixed by the common council by ordinance. It was evidently intended to make provision for fixing salaries by the city when by expiration of the term of office of the present commissioners such action would become necessary, as the provision of § 474, fixing salaries, is a temporary one. By § 17 it is provided that no change shall be made in the salary or compensation of any officer or employee during his term of service. This provision is found in the section conferring power upon the common council to enact ordinances, so it would seem from the plain reading of the charter that the police commissioners were to receive $1,500 a year salary, and no more; that the common council had the power by ordinance to' fix the salary bf the commissioners whenever the terms of the present commissioners should expire, but could not change the salary of the present commissioners, either to increase or diminish, and consequently was limited to the amount they were receiving at the time the charter took effect.

It appears that the common council by ordinance, passed and approved by the mayor on the 8th day of February, 1892, as provided by § 184 of the charter, fixed the salary of the police commissioners at $1,500 a year. This was the situation when, on April 27, 1892, the legislature passed an act amending § 184 of the charter, so as to read as follows: “ The commissioners of police shall receive such salary as may be fixed by the common council at a joint session thereof and the said common council shall immediately upon the passage of this act determine the amount of such salary. * * * ” The amendment is indicated by italics, and consists in the addition of that clause to the section. Before the amendment the common council were empowered to fix the salary of the police commissioners by ordinance; the amendment still left it with the common council to fix the salary, but it was to meet in joint session at once, and do what it was already authorized to do by the board of councilmen and the board of aldermen acting separately. The amendment does not in terms authorize the common council to increase the salary of the police commissioners, and makes no change in the section other than to authorize the common council to act in joint session, instead of in the usual way by separate action of the board of councilmen and the board of aldermen.

It may well be questioned whether the amendment conferred any additional power upon the common council, and whether it was not intended simply to change the mode of the exercise of the power which that body already possessed, in view of the express prohibition contained in § 17 of the charter and in the absence of express authority in the amendment. However that may be, I do not think it necessary to pass upon that question. The view which I have taken of the case leads me to the conclusion that the ordinance or resolution passed by the joint session, fixing the salary at $3,000 a year, is of no force without the approval of the mayor, and that the amendment did not have the effect, to repeal the provisions of the charter requiring such approval.

It is claimed that the legislature intended to authorize the common council to fix the salary independent of the mayor, and that it is the duty of the court to give effect to such intention. While that is true, it is clearly the law that the court cannot go outside of the act and ask opinion of the individual members of the legislature for the purpose of ascertaining the legislative intent. People v. Potter, 47 N. Y., 375.

Such intent must be gathered from the act itself, taking into consideration what evil was sought to be remedied. It cannot he supposed that the legislature, in view of the fact that the charter represented the best sentiment of the people of this city, clearly' expressed after months of deliberation by some of the most learned and patriotic of our citizens, intended to take from the mayor a power so wisely and safely bestowed upon him. The evil sought to be remedied is apparent from the charter itself. Too much power was vested in the common council and too little in the mayor. It was thought to correct supposed abuses existing under the old charter by conferring more authority upon the executive branch of the city government, and this in a great measure was accomplished by the new charter. It cannot be said that the legislature, in the absence of express language, intended to undo, ■even in part, what had required'so much labor and trouble to bring about.

The legislative power of the city is vested in the common council, consisting of a board of eouneilmen and a board of aldermen (§ 4). But by § 18 “ every ordinance and resolution of the common council, except resolutions making or approving appoint-. ments to office or place, designating the official paper, canvassing votes, adopting or altering comptroller’s estimates under § 70 of this act, shall be presented to the mayor before it shall be of force. If he approves it he shall sign it, but if not, he shall return it, with his objections, to the city clerk, who shall lay the same before the board of aldermen at its next regular meeting thereafter,” .and the board shall proceed to reconsider it, and if passed by the votes of two-thirds of all the members elected, and the board of eouneilmen by a like vote pass it, such resolution will be of force, notwithstanding the objections of the mayor. While the mayor, independent of the statute, possesses no power to veto, neither does the common council possess any power to enact ordinances and resolutions otherwise than is expressly conferred by statute, or is necessarily and logically deducible therefrom. Both derive their power from the statute, the one as much as the other, and they are limited in the exercise of such power to such acts as are by statute conferred upon them. The common council possessed the power to fix salaries, and this amendment does not enlarge the powers of that body. It changed the procedure by which the salary of the police commissioners was fixed. Instead of the common council acting by its two boards, one concurring in the action of the other, it requires that the power shall be exercised immediately in joint session. The language of the amendment is clear, precise and not ambiguous, and we are not called upon to ascertain what it means, but to determine what effect the last declaration of the legislature has upon the act amended. It is undoubtedly competent for the legislature to authorize the common council, either with or without the approval of the mayor, to fix the salary of the police commissioners, either in joint session or by the boards composing that body acting separately. Has this been done by this amendment ? It has been seen that § 18 of the charter requires the approval of the mayor to the validity of a resolution of the character of the one passed by the common council in joint session. It is a well known principle of construction of statutes that amendments must be read in connection with the whole instrument, and do not supersede any provision to which they are not absolutely repugnant, Matter of the Gilbert Elevated R. Co., 70 N. Y., 361; People v. Asten, 6 Daly, 18; affirmed, 62 N. Y., 623, and that one statute does not effect the repeal of another, unless the two are repugnant and inconsistent. Hankins v. Mayor, 64 N. Y., 18.

this amendment must be construed with the charter, as a part of it, and if it is not repugnant to or inconsistent with the other provisions of that act, they must stand together. From what has been said it is' not clear in what particular it is inconsistent with the other provisions of the charter, and the fact that it was passed as an amendment, and not with the original charter, does not, it seems to me, change the construction which I have given to it. If it had been a part of the original charter, it would not have seemed absurd or inconsistent with the provision requiring the mayor to approve before the action of the common council is effectual, and it is not apparent how the fact that it is an amendment changes its force or effect in that regard, or requires a different construction.

Possibly the legislature intended to do what the relator claims was accomplished bjr the amendment. I do not think, however, that it can be fairly said that such a result was anticipated or intended. If it was, then there was a failure to state that intention either in express language or by necessary implication.

If the views here expressed are correct, it follows that the writ should not have been granted, and that the order appealed from should be reversed, with costs.

As the same question is involved in the case of The People on • the relation of Frank J. Illig, now pending before us, a like order should be made in that case.

Order affirmed, with costs.

White, J., not sitting.


source: Caselaw Access Project

author: Titus, Ch. J.

license: Public Domain

text:
    Margaret Donohue, Adm’rx, Resp’t, v. The Lake Shore & Michigan Southern Railway Co., App’lt.

      (Superior Court of Buffalo, General Term,

      Filed August 3, 1892.)

    Negligence—Contributory.
    Plaintiff’s intestate started to cross the track after a passenger train passed, the gates being still down. He looked after the train and then in the opposite uirection and was struck by a backing engine. For five or six feet from the track the view was unobstructed. It was not shown on which track the accident occurred or which way the engine was backing, nor was any map of the locality submitted. Held, that the evidence was insufficient to show that deceased was free from contributory negligence.
    Appeal from, judgment in favor of plaintiff, entered upon verdict.

      George W. Cothran, for resp’t; McMillan, Gluck, Pooley & Depew, for app'lt.
   Titus, Ch. J.

—I am wholly at a loss to see how this judgment can be sustained. John F. Donohue, the husband of the plaintiff, was killed in attempting to cross the tracks of the defendant at Hambui’g street in this city. It appears that the deceased was passing "down south on the east side of Hamburg' street. As he approached the crossing the gates were lowered, and it is claimed a passenger train was coming in towards the depot from the west. After the train had passed, the deceased stepped forward, looking towards the depot, the direction in which the train is claimed to have gone, and then turned and looked in the opposite direction, and an engine backing down struck him. The passenger train was going very fast, and made considerable noise, blowing off steam and ringing the bell. The witnesses for the plaintiff did not hear the bell rung or whistle sounded on the engine which struck the deceased. The gates did not extend across the sidewalk, but remained down across the street until after the accident.

There is slight evidence that there was something to obstruct the view from the east sidewalk in the direction from which the engine came, but from the flag shanty which stood near the sidewalk, for a distance" of six feet, the deceased had an unobstructed view of the track, and could have seen the engine coming if he had looked in that direction before stepping upon the track, and when he was within five feet of the track he could have seen all the way up the track on which this engine approached. It does not appear from the evidence on which track the accident occurred, or which way the track curved, if at all, before it crossed the street, nor does it appear, in fact, on which track the passenger train or engine was, or which way the engine was backing, unless in some way we can draw the inference from the testimony of the witness Mary Kilhers. There is such a lack of evidence showing the surroundings and the conditions under which the deceased attempted to cross the track that it is impossible to say that he was free from negligence. No map of the locality is submitted, nor any fact from which it can be determined what track the train or engine was on, or which track the witnesses refer to in their testimony. The plaintiff’s counsel is obliged to assume facts in his brief which are not shown by evidence in the case, and I think the court would be obliged to rely upon probabilities not warranted by the testimony to say that the deceased was free from contributory negligence. There must be some proof of the surroundings and the facts before the jury can determine the deceased free from negligence, and as the case now stands the court must determine as matter of law that the plaintiff has not shown the deceased free from negligence.

I think the judgment and the order should be reversed, and a new trial granted, with costs to abide the event of the action.

White, J., concurs; Hatch, J., not sitting.


text:
    Walter C. Mason et al., Resp’ts, v. Freeman A. Hinds, App’lt.

      (Superior Court of Buffalo, General Term,

      Filed August 3, 1892.)

    1. Partnership—Evidence.
    In an action brought by alleged co-partners it is competent to prove the fact of partnership by one of the partners.

      2. Trial—Examination of witness.
    It is not error to rule out a question after counse. _as been permitted to ask six or seven times a question practically identical therewith.
    3. Brokers—Representations.
    In an action by a broker for commissions on an exchange of lands it is not error to exclude a question as to whether the broker represented that there were no taxes due on the lapd which defendant was to take, where it appears that defendant had the tax bills before him and an opportunity to examine them and ascertain the facts.
    4. Same.
    If defendant entered into a contract with the person produced by plaintiff, it is immaterial whether he was able to pay the taxes on the land he was to take so far as plaintiff’s right to commissions is concerned.
    5. Same.
    Nor is it material that some other person paid the consideration for the land, so long as the legal title was in the person so produced by plaintiff.
    Appeal from judgment of the municipal court of. Buffalo, in favor of plaintiffs.

      Andrews & Hill, for resp’ts; J. W. Russell, for app’lt.
   Titus, Ch. J.

—This is an appeal from the municipal court of Buffalo, from a judgment rendered in favor of the plaintiff for $146.66 damages, and $19.30 costs. The action was brought by the plaintiff to recover commissions which he claims to have earned in procuring a purchaser for the defendant’s farm of 105 acres, situated in the town of Cameron, in the county of Steuben. The plaintiff is a real estate broker, engaged in procuring parties to buy and sell lands and charging a commission for his services.

It is claimed by the plantiff, and not disputed by the defendant, that they did enter into an agreement by which, if the plaintiff procured a purchaser for the farm, the defendant would pay him for his services. It appears from the evidence that the plaintiff was to receive $150 if he procured a purchaser for the defendant’s farm. The defendant claims, however, that he was to pay him only $100. This question was tried before the court below, and on disputed evidence the court determined that the version of the contract as alleged by the plaintiff was the true one, and allowed him a judgment for that sum. We think the evidence fully warranted the court in the conclusion which it reached, and are not disposed to disturb its finding upon that ground.

It appears that Charles Boesch was the owner of three certain pieces of property situated in Buffalo, and that through the negotiation of the plaintiff he entered into a contract with the defendant to exchange this property for the defendant's farm, Boesch agreeing to take the farm in exchange for the lots in Buffalo, and give back a mortgage for $2,700, and the defendant was to pay Boesch $400 in cash, leaving the actual difference between the two properties $2,300. A written contract was entered into and signed on the 19th day of December, 1891. The defendant after-wards refused to fulfil his part of the contract, and now claims that he should not be held liable for the commissions, because the sale did not actually take place.

On the trial the defendant sought to show that the plaintiff made false representations as to the amount of taxes due on the pieces of property owned by Boesch. We do not think he satisfactorily established any fraud, and that the amount of taxes as stated by Mr. Gferst, who was the agent of Boesch, to the plaintiff, was true.

It is claimed, however, by the defendant, that he should not pay the plaintiff his commissions because the title to the property, while it was in Charles Boesch, was actually owned by LouisBoesch, and that Louis Boesch had creditors who might have a lien or claim against the property in the hands of Charles Boesch, and that he cannot be made to perform his contract with Boesch. We do not think his objection is a valid one. So far as it appears, the title to the property in Boesch was absolute and perfect. Mo-creditor had made claim to it, or sought to charge it with any of the debts of Louis Boesch, and there could be no legal objection to Charles Boesch conveying the title to a bona fide purchaser which would be perfect and free from the claims of the creditors-of Louis Boesch.

It is claimed, however, by the counsel for the defendant, that-this contract is illegal upon its face, and cannot be enforced. He does not point out specifically the particular reasons for such claim, and it is not apparent from the contract, or from the return itself, wherein the contract is open to that objection.

During the trial, the defendant made numerous objections to the admission of evidence, and claims that error was committed by the court in overruling them.

The first objection pointed out is to.the proof made by one of.' the plaintiffs, as a witness, that he and Mason were partners in business. We do not think the objection is well taken. Since parties are allowed to testify in their own behalf, we can see no-objection to proving the fact of a partnership by one of the' co-partners, although he is a party to the action. The authorities cited by the defendant’s counsel in support of his proposition have application to cases where it is sought to establish a partnership in actions brought by third parties against the copartners. It-is always competent to show the acts of the copartners in their manner of dealing between themselves, and with third, parties, as-well as their declarations, to establish the fact of a partnership. But it does not follow that in an action by the.copartners they are-not permitted to testify to the fact themselves.

The next ruling which the defendant’s counsel claims is erroneous was in the cross-examination of the plaintiff Banks. He was asked, “ Q. Was anything said in regard if the trade didn’t go through, if the property didn’t actually exchange hands?” This was objected to, and the evidence excluded. The ground of the objection is not stated, but it is manifest on an examination of his cross-examination that the court exercised its discretion properly. It appears that the defendant’s counsel had repeatedly asked substantially the same question, and that it had been as frequently answered by the witness. The question immediately preceding this one was • “ Q- I ask the witness if at any time you stated to the plaintiff Banks you wouldn’t pay this commission-under any circumstances, unless the trade was carried through and this property actually exchanged V The witness answered, “ I told him that if the trade went through I would give him one hundred dollars.” On page 30 this question was asked of the witness : “ Q. Was anything said as to whether it should be paid at all or not if the trade didn’t go. through ?” The witness answered : “ That was distinctly understood, if the trade was made.” And again, on the same page, this question was asked: “ Q. Was anything said between you and Banks as to whether this money should or should not be paid unless the trade actually went through ?” and the witness answered, “ I told Banks that I would agree to give him one hundred dollars in cash if the trade was made.” On page 31 the same witness was asked: “ Q. Tell whether or not it was positively stated by you to Banks that you wouldn’t pay the commissions unless the trade actually went through. You' may tell what that conversation was,” and the witness answered: “If the trade was made I was to give him one hundred dollars.” Again, on the same page. “Q. What was said?” “A. I told him if the trade went through I would give him one hundred dollars.” On page 32 this question was asked of the same witness: Q. I now ask if you remember anything was being said in that conversation about .the manner of your paying this commission. Anything further than you have stated ? ” and the witness answered: “ It was said from me to him if the trade was made I was to give him one hundred dollars.” Again, on page 33: “Q. Was anything further said about this payment of one hundred dollars than as you have stated?” “A. I told him if the trade was made I would give him one hundred dollars.” On the same page the following question was asked: “ Q. Do you remember anything further (upon the subject .of paying this one hundred dollars commission) ?” A. I don’t know anything further in regard to paying commissions that I know of.” It would seem that after the counsel has been permitted to ask six or seven times a question which is practically identical with the one which was ruled out, and as frequently answered, that he can have no ground for complaining that he was not permitted to examine the witness upon this point. We think he exhausted his full right, and the court below was liberal in allowing him to repeat the question so many times.

The defendant claims he should have been permitted to ask the following question:

“ Q. You may state whether or not shortly after the signing of this contract you saw the plaintiff Banks in my office on this subject, and if you did, whether or not you said to him there that he had stated to you before you signed this contract that there was nothing due upon the taxes or interest; that he knew at the time that he so stated to you that the taxes were due, and that the interest on the mortgage or' some part of the mortgages was due? ”

If any error was committed by the ruling of the court in ruling out the question, it was cured by the witness subsequently answering the same question. But we do not think that error was committed in any view. The tax bills were before the defendant at the time negotiations were pending for the exchange of the lands, and he examined or had an opportunity to examine them and determine for himself whether or not the taxes were due. This was in December, 1891. The taxes to which the question related were the city taxes of 1890 and 1891, which appeared from the tax bills themselves to have been long past due, and as to the local taxes the defendant was bound to take notice of the law in relation -to the time when such taxes fell due. We do not think any error was committed by the court.

The defendant was asked by his counsel whether he was in condition at the' time to pay those taxes besides the $400 that the contract called for. We think this was clearly incompetent. The question as to his condition to pay taxes was entirely immaterial. If he had entered into the contract it was a matter of no concern either to Boesch or the plaintiff whether he was in condition to pay the amount of the taxes or not.

Hor do we think that any error was committed by the court in ruling out the offer of the defendant to show that the title to the property was in Charles Boesch, and that Louis Boesch had paid the consideration. We think it is immaterial, and does not constitute a defense to the plaintiff’s claim for commissions.

On an examination of the return we do not see that any error was committed which calls upon this court to interfere with the judgment

Section 3063 of the Code of Civil Procedure provides that in appeals of this character “ the appellate court must render judgment according to the justice of the case, without regard to technical errors or defects which do not affect the merits,” and it is difficult to see how any of the questions which were ruled out áre important or material as bearing upon the merits of the case.

The judgment should therefore be affirmed, with costs.

Hatch and White, JJ., concur.


author: Rumsey, J.

text:
    George W. Crouch, Jr., Pl’ff, v. William T. Meyer et al., Def’ts.

      (Supreme Court, Equity Term, Monroe County,

      Filed March 14, 1892.)

    Specific performance—Will rot b-e decreed where there has beer a MISTAKE.
    Plaintiff bought certain land of defendants, and gave back a mortgage thereon, which contained a provision that plaintiff might pay the whole or part of the sum at any time. After the defendants, with the aid of counsel, had examined the mortgage, and expressed themselves satisfied, plaintiff’s attorney at his request, and in defendants’ absence, added a covenant for the release of portions of the land on certain payments being made. Although such provision had been talked over between them, it was not shown that defendants agreed thereto, and they testified that they did not know that such provision was in the mortgage when they received it. They were ignorant people who could not read the language. Meld, that as they were by mistake led to accepting a mortgage containing an agreement of which they had no knowledge, and such mistake was brought about by the act of plaintiff and his attorney, although without fraud, specific performance of such agreement would not be decreed.
    Action to compel specific performance of a contract to release part of mortgaged premises.

      C. F. Dean and W. E. Edmunds, for pl’ff; Jacob Spahn, for def’ts.
   Rumsey, J.

—In November, 1889, the defendants sold to the plaintiff a parcel of land near Rochester. To secure a part of the purchase price, the plaintiff gave to the defendants a mortgage for $2,500, conditioned to pay that sum in six years with semiannual interest at five per cent, with the privilege to the plaintiff to pay the whole or any part of the sum at any time. When the mortgage was finally delivered to defendants it also contained the following provision: “ And the parties of the second part, or the survivor, hereby agrees to release from the lien of this mortgage óne acre of ground for every $500 paid hereon, and in that proportion for greater or less payments.” The plaintiff after he had bought the lands laid them out into lots, and opened streets through the tract, and proceeded to sell the lots. In April, 1890, he sold one lot to one Zoneville. That lot contained 3,878 square feet, and the sum requisite to procure a release of it under the terms of the provision quoted above is $45.63. That sum the plaintiff tendered to defendants, and demanded a release of the lot, which the defendants refused to give, and the plaintiff brings this suit to compel them to give such release.

The defendants insist that they never acceded to the agreement quoted above, and did not know that it was in the mortgage when they accepted it.

All parties agree that when the sale was first agreed upon the only talk about the mortgage was that it was to run for six years at five per cent. The defendants so testified, and the plaintiff, upon being recalled, swore that defendants said, “ All they wanted was the interest on this mortgage. Bought it on six years time and semi-annual interest at five per cent.” In his version of the way in which the clause in question came to be in the mortgage, the plaintiff, in response to the very suggestive questions of his own counsel, gave the following:

“ Q. What instructions did you give Dean in reference to drawing this bond and mortgage ? A. I gave him the instructions to draw them as the bond and mortgage are drawn now.

“Q. In just the same terms and conditions? A. Yes, sir.

“ Q. Were those terms and conditions talked over there in Dean's office on the 23d of November? A. Yes, sir.

“ Q. When both of these parties were present ? A. Yes, sir.

“ Q. And they understood it at the time? A. Yes, sir.

“ Q. Did you- say anything to them about what purpose you were buying this land for ? A. No.”

As both defendants had testified that there was no arrangement for release, it would have been much more satisfactory if the plaintiff instead of being plied by his own counsel with leading questions to obtain an inferential contradiction, had been permitted to tell just what was said. As it is, he does not say that the defendants agreed to the clause consenting to release part of the premises. He says it was talked over and they understood it, and he told Dean to put it in. Not one word is said from which it can be inferred that they assented to it.

The defendants say that on the 23d of November they went to Dean's office and talked the matter over, and took the mortgage to Rau and had it read over. They say that was on Saturday, which is the fact. They say that they then took it to Dean, who told them it was too late to get it recorded, and that Mrs. Grouch hadn’t signed it, and to leave it, which they did until Tuesday, the 26th, when they got it and put it on record. They say, and Dean corroborates them, that when they took the mortgage to Rau to read there was nothing in it about releasing on payment of $500 an acre. Dean was asked:

“ Q. Will you swear it (the provision for a release) was in there when this mortgage went to Rau? A. That I don’t know.”

That being the state of the evidence the testimony of Dean as to the way he came to put the provision for a release into the mortgage is instructive. The following is the testimony;

“ Q. How long did the mortgage stay in an unfinished condition ? A, They didn’t seem to have come together at first, and beyond the dates I don’t know.

“Q. You don’t know how long it was unfinished ? A. I think they were in there, they had talks or were having different talks between themselves.

“ Q. Why was it kept unfinished; because they didn’t agree upon their bargain ? A. That is as I understood it

“ Q. How did you know it when they finally agreed. ?- A. Mr. Crouch told me that was all he wanted in the mortgage.

“ Q. Who was present when he told you that? A. I don’t know; it is my impression they were there and things of that kind were suggested, talked over when we were all there, and that this thing was mentioned or something similar to it, because he was plotting this property, and that he came in there afterwards and said he wanted that clause in.

“Q. Who did? A. Crouch.

“ Q. That was put in at some time, in pursuance of a suggestion of his, when they were not there ? A. No; a suggestion made when they were there, but it was put in when they were not there afterwards.

“ Q. You were not yourself cognizant of the agreement to have that put in, but you took it from what Mr. Crouch said? A. No; my recollection is that these things were suggested in a conversatian when they were all in the office, and that afterward Crouch came in and ordered it put in; put in a clause of that nature.

“Q. You say they were suggested.when they were there; do you .mean by that it was agreed when they were there? A. I can’t say • there was an absolute agreement to that extent. Crouch seemed to have his mind made up what he wanted, and Myers and those did not seem to; they were groping along.”

It will be noticed that neither Dean nor Crouch give one word of conversation which resulted in getting into the mortgage this remarkable agreement. It was not there when defendant’s friend read the mortgage. There was not “ an absolute agreement ” to put it in. So much the counsel for plaintiff admits. Now, when the facts are that there was no agreement for such a release and it was put into the mortgage by direction of the mortgagor in the absence of the mortgagees, and after they had examined the mortgage with the help of their counsel, and expressed themselves as satisfied with it, if the defendants deny any knowledge of such an agreement, it lies upon the plaintiff to show at least what the defendants said by way of acceding to it But nothing of the kind is done. The plaintiff was bound to show, too, that this new agreement thus put in in the absence of defendants was thoroughly understood by them before they accepted it Mr. Dean swears that he read and explained it to them when he gave them the mortgage, and that Meyer said he was satisfied. But Meyer and his wife both say that they did not understand that anything of the sort was in the mortgage when they took it They both appeared like honest people and I think they told the truth. Now, here we have a case where, by the concession of the man who drew the mortgage, something very important was put into it which had not been “ absolutely agreed ” to at a time .when the mortgagees were absent, and these mortgagees, too, were ignorant people who could not read the language in which the mortgage was written. The mortgage was drawn by the attorney for the mortgagor, and the agreement in question was one which was greatly for his benefit and greatly to the disadvantage of - the mortgagees in its probable effect on the mortgage as a security. It is undeniable, as a matter of fact, that the mortgagees did not understand the nature of the agreement which was put upon them.

Can the plaintiff and mortgagor have specific performance of such an agreement ?

It is well settled that a judgment for specific performance of a contract is in the sound discretion of the court, and that it will not be adjudged in any case where there are shown to be in the contract or the making of it any elements of mistake which would render such a judgment inequitable. Margraf v. Muir, 57 N. Y., 155; Patterson v. Bloomer, 35 Conn., 57.

■ It is not necessary that the defendant should show that the agreement was so tainted with fraud as that it should be given up to be cancelled to require the court to refuse specific performance. It will not be decreed unless it' appears that the agreement has been entered into with perfect fairness and without misapprehension or misrepresentation. Frisby v. Ballance, 4 Scam.- (Ill), 287; 39 Am. Dec., 409, 411; 3 Pom. Eq., § 1405. The rule as laid down by Mr. Pomeroy in another place is that whenever the defendant’s mistake was, either intentionally or not, induced or made probable or even possible by the acts or omissions of the plaintiff, then, on the plainest principles of justice, such error prevents a specific performance of the agreement 2 Pom. Eq. Juris., § 860.

It is not necessary in this case to state the rule so broadly.

The case of Malins v. Freeman, 2 Keen, 25, cited by Mr. Pomeroy, amply sustains him. In that case Malins and Davies had employed the same auctioneer to sell for them at the same place and on the same day several separate pieces of real estate. Davies had employed Freeman to bid for him on some of the property. Freeman by mistake, for which he alone was responsible, bid off property of, Malins, supposing he was buying in land of Davies under his employment. Upon suit by Malins for specific performance, the' master of the rolls (Lord Langdale) refused to decree it, saying that the question was whether if the mistake be proved the court would enforce specific performance. He concluded that in such a case specific performance ought not to be decreed.

In Denny v. Hancock, L. R, 6 Ch. App., 1, the defendant had bought property under a mistake as to its boundaries for which the plaintiff was responsible, although without fraud, and the justices of appeal held, reversing the vice chancellor, that because of that mistake specific performance should not be decreed at the suit of vendor. Many other cases are cited in the text books to the same effect In this case the defendants were by mistake led to accepting a mortgage qontaining an agreement of which they had no knowledge. That mistake was clearly brought about by the act of the plaintiff and of his attorney. It is unnecessary to charge either of them with fraud. It is sufficient to say that they permitted the defendants to be misled so far as to apparently become parties to- a contract of which they had no sufficient ‘information. The well settled policy of the law requires that specific performance of such a contract should not be adjudged, but that the complaint should be dismissed.


author: Wright, J.

text:
    The People, Pl’ffs, v. William W. Smith, Def’t.

      (Supreme Court, Special Term, Oswego County,

      Filed January 23, 1892.)

    Game laws—Costs.
    An action for violations of the game laws is one to establish a right for the benefit of the county in which such violations took place within the meaning of § 3243 of the Code, and where costs are awarded to the defendant they must be, awarded against such county.
    This action wasffirought in Lewis county by the district attorney of that county, under the direction of a state game protector, according to the provisions of chap. 577 of the Laws of 1888, to recover penalties for violations of the game laws, alleged to have been committed in Oneida county.
    A verdict was rendered in favor of the defendant, who entered judgment for the taxed costs against Lewis county, which Justice Merwin, on motion at special term, struck out. Thereupon the defendant moved, at special term, before Justice Churchill, for an order to amend the judgment by awarding the costs against the plaintiffs, which was denied.
    The defendant now moves for such an order against the county of Oneida.

      Geo. F. Morss, for motion; Thos. S. Jones, dist. att’y, opposed.
   Wright, J.

—The decision of this motion depends upon the answer to the question, was this action brought to establish a right for the benefit of Oneida county.

Section 3243 of the Code of Civ. Pro. provides that in an action * * * brought in the name of the People of the state to recover money of property, or to establish a right * * * for the benefit of a county, * * * costs shall not be awarded against the People, but where they are awarded to the defendant, they must be awarded against the body for whose benefit the action * * * was brought”

The learned district attorney urges that, since the county of Oneida would not be entitled to any portion of the penalties in case of a recovery (the statute providing that the net proceeds shall be divided between the informant and the state), this action was not brought for the benefit of that county.

That is not the proper test The main purpose of the prosecution of this class of' actions is not the collection of penalties,, but the establishment and enforcement of rights ; in this case it was the protection of the people of Oneida county in the enjoyment and profit of the game within its borders. The penalty is only an incident, affording the informant a motive to complain of offenders.

The idea of protecting county interests pervades the entire game law. The boards of supervisors are empowered to supplement the state laws by further provisions relating to their respective counties (chap. 212, Laws 1884); and it is the duty of the state game protector to enforce such supplementary provisions as well as the state laws (§ 2, chap. 577, Laws 1888).

Judge Andrews, in People v. Alden, 112 N. Y., 120; 20 St. Rep., 496, says: “ The game laws proceed on the assumption that a county has an interest in the preservation of game within its limits, and in the enforcement of laws for its preservation.” And on page 121 he further remarks: “ Whether the county is pecuniarily benefited or not by a recovery, a county interest is thereby protected.”

The statute reposes discretion in the state game protectors to cause the action to be brought in the county wherein the unlawful act occurred, or in an adjoining county, as was done in this case; but the former county is the one for whose interest and benefit the right is sought to be established.

Motion granted, without costs.


author: Cullen, J.

text:
    John N. Cleary, Resp’t, v. The Municipal Electric Light Co., App’lt.

      (Supreme Court, General Term, Second Department,

      Filed July 22, 1892.)

    1. Master and servant—Negligence—Release.
    In an action for injuries brought by an employee against his employer, the defendant put in evidence a general release signed by plaintiff, given on the receipt of a sum of money while he was sick in hospital. Defendant claimed that it was given in settlement of the cause of action; but plaintiff denied the execution of the release or any. settlement, and claimed that the money was paid as wages and he was asked to sign a receipt for wages. The court charged that if plaintiff received the money in settlement or knowingly executed the release he could not recover; but if there was no agreement to compromise and he signed the release under a statement that it was a mere receipt for wages or gratuity, it was no bar, and refused to charge on request that if plaintiff executed the release he could not recover. Held, no error.
    3. Same—Tender.
    The rule that where a party seeks to rescind a contract on the ground of fraud or imposition he must tender a return of what he received under it before he can maintain an action, does not apply where he does not seek a rescission, but denies making such contract and claims that his signature was obtained by deceit as to the contents of the paper.
    Appeal from judgment in favor of plaintiff, entered on verdict, and from order denying motion for a new trial.

      Dailey & Bell, for resp’t; Robert Payne, for app’lt.
   Cullen, J.

—This is an appeal from a judgment for the plaintiff entered on a verdict at circuit. The action was for damages for personal injury by employee against employer.

But one question has been argued before us on appeal, the effect of a release claimed to have been executed by the plaintiff.

All parties agree that when the plaintiff was lying in the hospital after his injury, he received from the defendant’s officers $250, which was'placed in a savings bank to his credit. The testimony on behalf of the defendant was to the effect that the1 money was paid plaintiff to settle the cause of action and that the plaintiff then executed the general release put in evidence. The plaintiff denied the execution of the release, and also any conversation about the settlement. He testified that the sum was paid him as wages and that he was asked to sign merely a receipt for wages.

The question of fact thus in issue was submitted to the jury under á charge that if the plaintiff received the money in satisfaction of the claim or knowingly executed the general release, he could not recover. But if there was no agreement to compromise, and the plaintiff signed the release under the statement that it was a mere receipt for wages or gratuity, it was no bar to the action. It is conceded that the plaintiff never tendered a return of the money paid him. The counsel for the defendant asked the court to charge that if the plaintiff executed the release he could not recover. The court refused the request, but charged that if the plaintff knowingly executed the release it would prevent a recovery.

It is urged that the refusal to grant such request and the modification of the request made by the court was error. It is insisted that even if the plaintiff could repudiate the release he was bound first to return the money received. The rule undoubtedly is that where a party seeks to rescind the contract on the ground of fraud or imposition, he must tender a return of what he has received under it before he can maintain an action at law, and in an action in equity he must at least tender a return by his bill of complaint. Gould v. Cayuga Co. N. Bank, 86 N. Y., 75; Francis v. N. Y. & B. El. R. R. Co., 108 id., 93; 13 St. Rep., 87.

Therefore in this case if the plaintiff had admitted the compromise or his execution of the release, but claimed that he had been induced to make the compromise by fraud, duress or imposition, he would have been bound to return the consideration received before be could maintain his action. But that was not the issue in the case. Plaintiff did not seek to avoid the contract of compromise. He denied making any such contract.

The fraud here, if any, was not in inducing the plaintiff to enter into the agreement, nor even in falsely reducing to writing the terms of the agreement made; for if the plaintiff’s story was correct the paper signed by him was not to be a contract at all but only a receipt; but in stating falsely the contents of the paper. The contract that the plaintiff testified was made between the parties he did not seek to rescind. To the contract upon which the defendant relied, even if executed by plaintiff, it was a sufficient answer that there was no such contract and that the plaintiff’s signature had been obtained by deceit as to the contents of the paper.

The rule cited is, therefore, not applicable to the case at bar. There is no necessary inconsisfency in the plaintiff retaining the money and still pursuing this action (assuming, of course, the truth of his story which the jury has found), for the money was paid not on the subject matter of this suit, bis legal claim, but as a gratuity or as wages.

We, therefore, think that there was no error committed in the submission of the case to the jury.

Two cases are to be distinguished at the case at bar. In McGlynn v. Brooklyn City & N. R. R. Co., 93 N.Y., 655, defendant produced a release alleged to have been executed by the plaintiff. Plaintiff admitted the receiving of the money but denied the agreement to compromise and also the execution of the release. A recovery by the plaintiff was upheld though she had never tendered a return of the money paid her. In that case the court charged" the jury that if the plaintiff executed the release she could not recover. But in that case there was no claim of any misrepresentation as to the contents of the instrument, the simple issue was whether the plaintiff executed it or not, the defendant testifying to the agreement and the execution of the paper, and the plaintiff denying everything of the kind.

In Dixon v. Brooklyn City & N. R. R. Co., 100 N. Y., 170, where the plaintiff recovered despite a release, the plaintiff had tendered a return of the consideration before bringing the action. But there the execution of the release was conceded and the instrument sought to be avoided by reason of the plaintiff’s mental incapacity at the time. So that the question was not what was the contract between the parties, but whether the contract was binding on the plaintiff. Anything that the plaintiff had received he had received under the contract, and if he repudiated the contract he had no right to retain the consideration paid him. These two cases clearly differ from the one now before us.

The judgment and order denying motion for new trial appealed from should be affirmed, with costs.

Barnard, P. J., and Dykman, J., concur.


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    Annie E. White et al., Adm’rs, App’lts, v. The New York Central & Hudson River Railroad Co., Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed July 22, 1892.)

    Railroad—Negligence.
    While plaintiffs’ intestate was walking with his wife on defendant’s tracks across a bridge, and when about the middle thereof, he was struck and killed by the locomotive of a passenger train. The bridge was 115 feet long, 8 feet wide and 18 feet above a stream. The track was straight for 2,000 feet and there was nothing to obstruct the engineer’s vision. Held, that if intestate was in such a position that he could not safely get off the track, and the engineer saw his situation, the engineer was bound to make a reasonable effort to avoid running him down, and that the facts shown, without explanation, entitled plaintiffs to go to the jury, and it was error to non-suit.
    Appeal from judgment in favor of defendant, entered on non-suit, and from order denying motion for a new trial.
    Action to recover damages for the death of plaintiffs’ intestate, alleged to have been caused'by defendant’s negligence.

      A. M. & G. Card, for app’lts; Frank Loomis, for resp’t.
   Cullen, J.

—This is an appeal from a judgment in favor of the defendant entered upon a non-suit at circuit. The plaintiffs’ intestate and his wife (one of the plaintiffs) were walking upon the defendant’s track. Upon arriving at the middle of a bridge about 115 feet long, the deceased was struck by the locomotive of a passenger train coming from the rear and killed. The deceased was undoubtedly a trespasser upon the track, but that fact is not necessarily a bar to this action. The rules of law applicable to the case seem authoritatively settled by recent decisions. On the one hand an engineer is not bound to stop his train the moment he sees some living object on the track. He has the right to assume that the object will leave the track in time to escape injury. Chrystal v. Troy & Boston R. R. Co., 105 N. Y., 164; 6 St. Rep., 833; Burnes v. Staten Island R. T. R. R., 44 id., 271.

On the other hand if the engineer saw that the deceased was in a place of peril he was bound to use reasonable diligence to avoid injuring him. Remer v. Long Island R. R. Co., 36 Hun, 253, affirmed 113 N. Y., 669; 23 St. Rep., 994; Chrystal, v. Troy & Boston R. R. Co., supra.

The vital question presented on this appeal is, therefore, was the deceased in such a position that he could not safely get off the track. If he could, he was bound to do it, and the engineer had the right to assume that the deceased would so act. But if the deceased could not safely leave the track, and the engineer saw that he was in a position of danger, he was bound to make a reasonable effort to avoid running him down. The bridge upon which the deceased was struck was of the pattern known as a deck bridge, eight feet wide and from fifteen to eighteen feet above the stream which it spans. This width was insufficient to enable the person to stand with safety and avoid a passing train, though as a matter of fact the wife did by falling down and rolling to the side escape injury. The height of the bridge above the stream was such as to render it extremely hazardous to jump off. We think this situation at least presented a question of fact for the jury to pass upon as to whether the deceased was in a place of peril and whether the engineer should have recognized it as such.

This question of fact alone, if found in her favor, would not have entitled plaintiff to a verdict. She was bound to show further that the engineer saw the position of the deceased, and made no effort to avoid injury. The evidence of the plaintiff was to the effect that no warnings were given and nothing done to slow of stop the train until after the accident.

There is no evidence in the case as to whether the engineer actually saw the deceased, the complaint having been dismissed at the close of the plaintiff’s testimony, but the location of the track was such that the jury might infer that fact, at least in the absence of any evidence to the contrary. The train approached the bridge from the north; the track on the bridge and for two thousand feet to the north of it was perfectly straight; there was nothing to obstruct the view and the accident occurred in the day time. Evidence was also given tending to show that the train could have been stopped within a distance of 500 or 600 feet We think the case made by the plaintiff, in the absence of explanation on the part of defendant, entitled her to go to the jury. It may be that an explanation might be given such as to make it the duty of the court to withdraw the case from the jury. But in the absence of such explanation, we think that the disposition at circuit was erroneous.

cThe judgment and order denying new trial should be reversed and a new trial granted, costs to abide event.

Dykman, J., concurs; Barnard, P. J., not sitting.