text:
    James S. Smith, Resp’t, v. The City of Buffalo, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed March, 1887.)

    1. Municipal corporations—Liability for local improvements—When general funds liable—Charter of the city of Buffalo.
    By the charter of the city of Buffalo the expense of local improvements of the character of the work alleged in the complaint is to be defrayed by local assessments, and certain ordinances of the city provide that warrants in payment of work of that character shall not be drawn until the assessment therefor shall have been confirmed by the common council, and such warrants shall be made payable out of the fund when collected or when the money is actually realized by the city. The common council seasonably audited and liquidated the claims in suit after they were presented and adopted resolutions ordering the requisite assessments to be made, but the assessors made no assessment, and no further action was taken by the common council or other city authorities in respect to the matter, although over fifteen months had elapsed since the bills were audited before this action was commenced. Held, that it was the duty of the officers of the corporation to see that a proper assessment for the improvement was made, and that the money was collected thereon and paid over to the contractors within a reasonable time after the completion of the improvement, and that as the officers of the corporation had unreasonably neglected to compel a proper assessment to be made, the complainant was entitled to payment, out of the general funds of the corporation, the amount of his bill with interest since the date of their being audited, and that such general funds be reimbursed out of the proceeds of the assessment when made.
    2, Same—Unreasonable delay or neglect of city renders it liable PRESENTLY.
    If the failure o. a municipal corporation to realize the funds out of which a debt of said corporation for local improvements is to be paid is owing to its own neglect or unreasonable delay, it is liable presently.

      3. Same—Must set in motion machinery to collect assessment and KEEP IT IN MOTION.
    It is the duty of the city, through its common council or other appropriate agency, not only to set in motion the machinery which its charter has provided for raising the needed funds to pay for local improvements ordered by it, but also to see that such machinery is kept in motion, and to enforce its power in that respect with reasonable diligence until the end is accomplished; and for a breach of such duty the corporation is liable to a party injured thereby.
    4. Same—Power of agents of city of Buffalo over assessors—Remedy BY MANDAMUS.
    The agents of the city of Buffalo (i. e. the common council) have ample power conferred by their charter to prevent the assessors from neglecting their duty, even if the latter are not to be regarded as servants of the city. In addition they have authority to proceed against them by mandamus.
    5. Same—When delay unreasonable—When for the court.
    The claims in question were all presented to the common council and audited before December 15, 1884, and no assessment had been made up to March 27, 1886, when this suit was commenced. No excuse was shown for such delay, and the facts being admitted whether the delay was unreasonable was for the court.
    6. Same—Presentation of claims.
    It was not necessary for the plaintiff to notify the common council that he claimed to recover the amount of the bills audited on the ground of the alleged neglect of the city. The claims for the work having been presented as the statute required, nothing more was necessary.
    Appeal from a judgment of the Erie county court entered on a verdict in favor of the plaintiff directed by the court.

      W. F. Worthington and Frank C. Laughlin, for app’lt; Herman Henning, for resp’t.
   Smith, P. J.

Action to recover for several jobs of work done by plaintiff’s assignors, at defendant’s request, in and about certain local improvements in the defendant city. Claims for the work were duly presented to the common council of the city, who audited and allowed the same and ordered assessments to be made therefor, at different times between the 2d of July, 1883, and the 15th of December, 1884, inclusive.. The gist of the action, as alleged in the complaint, is that the defendant neglected and refused to make or confirm the assessments ordered, or to pay for the work, orto make any provision whatever therefor, whereby the plaintiffs suffered damage to the amount of said claims as audited, with interest on each from the date of its audit.

By the charter of the defendant, the expense of local improvements of the character of the work alleged in the complaint is to be defrayed by local assessments, and certain ordinances of the city provide that warrants in payment of work of that character shall not be drawn until the assessment therefor shall have been confirmed by the common council, and such warrants shall be made payable out of the fund when collected or when the money is actually realized by the city. The counsel for the appellant contend that in view of those provisions the only duty of the city, in the first instance, is to put the necessary machinery in motion to raise the money by assessment. That position, in its literal sense, may be conceded to be true, but if by it is meant that the city, by the discharge of the primary duty of ordering an assessment, is thereby relieved from its liability to pay the debt, the position cannot be maintained. It is not supported by the cases cited by the appellant’s counsel. In McCullough v. The Mayor (23 Wend., 458), Bronson, J., said: “If the common council has neglected that duty ” (of putting the necessary machinery in motion), “ or has been wanting in diligence, an action on the case would perhaps he,” etc. (p. 461). In Lake v. The Trustees, etc., of Williamshurgh (4 Denio, 520), which was an action on a warrant drawn by the trustees of the village upon the treasurer, the same judge remarked that the question whether the plaintiffs had a remedy on the case against the trustees for a neglect of duty, did not arise on the bill of exceptions (p. 525). In Buck v. City of Lockport (6 Lans., 251), the claim in suit was presented to the common council of the city and by them referred to their committee on accounts, and nothing further having been done with it, the suit was begun between seven and eight months after the presentation of the claim. There was a neglect of the primary duty referred to, but the case plainly endorses the principle that for negligence or unreasonable delay of the common council, or other authorized agent of the corporation, in any stage of its duty, the corporation is liable. Said Johnson, J.: “The corporation cannot thus ” (by neglect to act) “keep it creditors at bay and then defend itself on the ground that its own officers and agents have not done what it was their duty to do ” (p. 255.) In Richardson v. The City of Brooklyn (31 Barb., 152); Hunt v. The City of Utica (18 N. Y., 442); and Baker v. The Same (19 N. Y., 326), no negligence whatever was shown.

It has been held repeatedly that if the failure of the corporation to realize-the fund is owing to its own neglect or unreasonable delay, it i hable presently. The case of Cumming v. The Mayor, etc., of Brooklyn (11 Paige, 596), is an authority in point for the present action. The corporation of Brooklyn contracted with the complainants to grade and regulate one of he avenues of that city, at a specified price to be paid fox rut of the moneys which were to be collected from an assessment to be made for such improvement. The work was completed and approved, and in March, 1831, the corpox-ation ordered the assessors to make an assessment for the improvement. The assessors accordingly made an assessment of the expense of the im-. provement, upon the several persons by name who were supposed to be owners of property benefited by the' improvement. But in their return of the assessment they gave no description of the property which was benefited, and which they intended to assess. In October, 1831, a warrant was issued to the collector to collect the several assessments from the owners assessed. But only a small part of the assessment was collected and paid over to the complainants, and the residue of the assessments the collector returned as uncollectable from the goods and chattels of the persons assessed. In May, 1838, the corporation advertised the property, intended to be assessed, for sale, but could not obtain bids to the amount of the respective assessments; and.the corporation subsequently advertised the property for sale, with a similar result. In August, 1839, the complainants filed their bill for relief, and it .was held that it was the duty of the officers of the corporation to see that a proper assessment for the improvement was made, and that the money was collected thereon, and paid over to the contractors, within a reasonable time after the completion of the improvement, and that as the officers of the corporation had unreasonably neglected to compel a proper assessment to be made, the complainants were entitled to payment out of the general funds of the corporation, and that such general funds be reimbursed out of the proceeds of the assessment when made. That case was approved and followed in Baldwin v. The City of Oswego, 1 Abb. Ct. App. Dec., 62. Upon the same principle, proceed the cases of Beard v. The City of Brooklyn, 31 Barb. 142; Breck v. Lockport, supra; and Quin v. The City of Buffalo, 26 Hun, 235. The principle recognized by those authorities, we think, is applicable to the present case. It appears that the common council seasonably audited and liquidated the claims in suit, after they were presented, and adopted resolutions ordering the requisite assessments to be made, hut the assessors made no assessment, and no further action was taken by the common council or other city authorities in respect to the matter.

The defendant’s counsel contend that the city is not liable for the neglect of the assessors; that the assessors are not the agents of the city in respect to making assessments, but are an independent board of public officers, whose duties are prescribed by the legislature, and who act, not for the city, but for the public at large. In support of that position, they cite the well known case of Maxmilian v. The Mayor (62 N. Y., 161), and many other analogous cases. To the cases cited, may be added the recent one of Heiser v. The Mayor, etc., of New York (5 N. Y. St. Rep., 558), in which it was held that the-board of assessors of the city of New York, did not act as the servants or officers of the city, in performing the duties enjoined upon it by chap. 729 of the Laws of 1872, in relation to the improvement of the Eighth avenue in said city. But, as was said in the case of The People ex rel. Negus v. Dwyer (90 N. Y., 402), “the question in every case of such character depends largely upon its own peculiar facts, and is determined by considerations not usually common to them all.” (p. 408.)

We conceive it needless in this case to determine whether the assessors of the city of Buffalo, are to be regarded as the agents of the city, in respect to making assessments as required by the charter. The plaintiff’s action does not rest upon the theory that the negligence of the assessors is the negligence of the city. Its theory is that it is the duty of the city, through its common council or other appropriate agency, not only to set in motion the machinery which the charter has provided for raising the needed funds to pay for local improvements ordered by it, but also to see that such machinery is kept in motion, and to enforce its power in that respect with reasonable diligence, until the end is accomplished; and that for breach of such duty, the corporation is hable to a party injured thereby. That position, we think, finds support in cases already cited. In Cumming v. The Mayor (supra), Chancellor Walworth said: “ Although the common council may not have a control over the assessors, directly, they were bound by their contract, to have the assessment made, and if the assessors refused to do their duty, the corporation should have applied to the supreme court for a mandamus to compel them to make a proper assessment, instead of' confirming an invalid one.” In Baldwin v. The City of Oswego (supra), the defendant was held hable “on account of the neglect of its officers to enforce the legal instrumentalities provided for enforcing payment against the_parties primarily chargeable with such payment.

By the charter of the city of Buffalo, among the officers of the city, to be elected, are three assessors (Title 2, § 1), who shall constitute a board of valuation and assessment, a majority being a quorum (Id., § 39), by whom all local assessments shall be made. Title 6, § 2. They are required to publish notice of completed assessment rolls in their hands, the first week of each month (Title 6, § 5), and to give notice that such rolls will remain in their office, open for inspection and revision for ten days. At the expiration of that time they are to deliver a copy thereof to the city attorney, when the functions of the assessors in regard to such roll, appear to cease. The general duties of the assessors are prescribed by the charter. Tlie details of their duties, where the charter is silent, may be prescribed by the common council, that body being vested with power to enact ordinances prescribing the duties of all officers or persons elected under the act. Title 3, § 8. The mayor is made the chief executive officer of the city (Title 2, § 24); he is enjoined to see that the duties of the various city officers are faithfully performed (Id.); he has power to investigate their acts, to have access to all books and documents in their offices, to examine them and their subordinates on oath, and to suspend or remove such officers, whether they be elected or appointed, for misconduct in office or neglect of duty. Id. So that the agents of the corporation have ample power conferred by the charter to prevent the assessors from neglecting their duty, even if the latter are not to be regarded as the servants of the city. In addition, there is the authority suggested by the Chancellor in the case of Cumming, to proceed against them by mandamus.

In respect to the negligence of the corporation there can be no question. The claims in suit were all presented to the common council and audited before the 15th of December, 1884, and no assessment had been made up to the' 21th of March, 1886, when this suit was commenced. No excuse is shown for the delay of the assessors or the neglect of the corporation authorities to proceed against them on account of such delay. There being no dispute about the facts, the question whether the delay was unreasonable was for the court. Bowery National Bank v. The Mayor, 3 Hun, 639, and cases cited by Brady, J., pp. 228-9.

The point is made that the plaintiff failed to show that the claim upon which he seeks to recover was presented to the common council before the commencement of the action; or, in other words, that as the plaintiff did not notify the common council that he claimed to recover the amount of the bills audited on the ground of the alleged neglect of the defendant, the provision of the charter requiring all claims to be presented, etc. (title 3 §, T), stands in his way. We think the position is untenable. The claims for the work were presented, as the statute required, and nothing more was necessary.

. A complete cause of action having been made out, the plaintiff was entitled to recover as damages the amount of the bills as audited, with interest on each from the date of its audit, and we understand the recovery to be on that basis.

It is unnecessary to decide whether tho appellant’s counsel are right in their contention that the testimony of the plaintiff’s witnesses as to the time within which the assessors could have made the assessment-rolls was improperly received, inasmuch as independently of that testimony, the court was justified in holding, as matter of law, that there had been a lack of reasonable diligence.

The appeal book shows that a motion for a new trial was made by the defendant upon a case and denied, but the order denying such motion does not appear to have been appealed from, and it therefore stands.

The judgment should be affirmed.

Haight and Bradley, JJ., concur; Barker, J., not voting.


source: Caselaw Access Project

author: Hatch, J.

license: Public Domain

text:
    Wilson S. Tifft v. The City of Buffalo.

      (Superior Court of Buffalo, Trial Term,

      Filed May, 1887.)

    1. Municipal corporations—Charter op the city op Buffalo, section 18, TIT. 9, AS AMENDED BY I/AYVS 1879, CHAP. 486, § 19—EXISTING LAWS REPEALED BY IMPLICATION.
    The charter of the city of Buffalo, section 18, tit. 9, provides that the common council may cause streets and alleys to he opened, leveled, repaired, swept, cleaned and watered, and that no work or improvement specified in the act, the expense of which shall be estimated by the common council to exceed $500, shall be ordered, unless by the vote of two-thirds of all the members of the common council, after publication in six successive numbers of the official papers of the intention to order such work or improvements. This act was amended by Laws 1879, chap. 486, making section 19 provide that the city shall not enter into a contract with any person for doing or making any work or improvement at a price exceeding $200, except for the sprinkling and watering of streets, which may be done without notice as prescribed therein where a majority of the owners of property on a street petition therefor (which petition shall be referred to the assessors, and this certificate shall be conclusive), until they shall have published a notice in five successive numbers of the official paper, inviting sealed proposals to do the work * * * and shall not enter into a contract for the doing or making any such work or improvement for a price exceeding $500, except for sprinkling or watering streets, until the assessment therefor has been confirmed. Held, that where a new • rule was provided by the amendment, it must be held to supersede the old one contained in section 18. although there was no clause expressly repealing it.
    2. Court—Duty of, to give effect to intention of legislature when ASCERTAINABLE.

      Held, that where the intent of the legislature may be ascertained, it is the duty of the court to give it effect,
    3. Same—Equitable powers of, cannot be invoked to set aside assessment FOR IRREGULARITY.
    Where expenses had been incurred for sprinkling the streets under the authority of the above-recited provisions, and an assessment laid for the liquidation of them: Held, that it was necessary to show the invasion of some substantial right in order to vacate the assessment, and that a mere irregularity was insufficient to set in motion the equitable powers of the court for that purpose.
    4. Assessment-roll—Presumed valid until proved otherwise.

      Held, that until proved to be otherwise, there is a presumption In favor of the validity of an assessment-roll.

      Giles E. Stillwell, for pl’ff; Frank Laughlin, for def’t.
   Hatch, J.

This action is brought to vacate and set aside a certain assessment roll levying an assessment upon plaintiff’s property situate on Allen street, in the city of Buffalo,' for street sprinkling purposes. It appeared upon the trial that on the 1st day of June, 1886, a petition was presented to the common council of said city praying that Allen street, between Main and Wadsworth streets, be sprinkled from May 15, 1886, to October 1, 1886, and that the contract for such sprinkling be awarded to Robert D. Cursons at his proposition of twenty cents per lineal foot of street. This petition was accompanied by a proposal on the part of said Cursons, signed by him, to sprinkle said street between the points mentioned during the aforementioned period, at the price of twenty cents per lineal foot of said street. The said petition was on said 1st day of June, 1886, referred by said council to the assessors for their certificate. On the 7th day of June, 1886, the said assessors returned said petition to the common council with their certificate attached bearing date on that day, in and by which they certify that the said petition is signed by a majority of the owners of property fronting on that portion of the street along which said improvement is to be made; and, further, that it contains a majority of the owners resident in the city of Buffalo of the lands fronting on that part of the street in and as to which said improvement is to be made. Thereafter-and on the 7th day of June, 1886, a resolution was adopted by the common council estimating the expense of the work at $509.60, also, a resolution ordering the work at that amount and awarding the contract to said Cursons. Thereafter and' while the assessment levied- for said improvement remained in the hands of the Assessors, the plaintiff, having received notice of the amount of his assessment for said work, went to the office of the assessors examined said roll, and afterwards filed objections to the same with the city clerk, and the same were presented to the common council by the city clerk on the 30th day of August, 1886; that on hearing before the council of said objections, they were overruled and the assessment confirmed. The roll was then delivered by the clerk to the comptroller, whereupon the plaintiff commenced this action and obtained an injunction restraining the collection of said tax and further proceedings under said assessment. No resolution of intention to order said work was ever adopted by the common council, and none ever published. The claim here made is that the common council in ordering this work violated section 18, title 9, of defendant’s charter in two particulars.

First—In that it failed to .pass a resolution of intention to order said work; and,

Second—That it did not publish said notice of intention in six successive numbers of the official paper.

By section 6, title 9 of said charter, it is provided that the common council “may cause streets and alleys to be opened, leveled, repaired, swept, cleaned and watered.” Previous to 1879, this was the only clause which authorized the council to order the sprinkling of streets.

By section 18 of the same title, it is provided among other things, that “No work or improvement specified in this act, the expense of which shall be estimated by the common council to exceed $500, shall be ordered, unless by the vote of two-thirds of all the members of the common council, after publication in six successive numbers of the official paper of the intention to order such work or improvements.”

In 1879 the legislature amended said act, chapter 486, Laws 1879, making section 19 read as follows: “The city shall not enter into a contract with any person for doing or making of any work or improvement at a price exceeding $200, except for the sprinkling and watering of streets, which may be done without the notice as prescribed herein where a majority of the owners of property on a street petition therefore (which petition shall be referred to the assessors, and their certificate shall be conclusive) until they shall have published a notice in five successive numbers of the official paper, inviting sealed proposals to do the work, * * * and shall not enter into a contract for the doing or making any such work or improvement for a price exceeding $500, except for sprinkling or watering streets, until the assessment therefor has been confirmed.”

There was no repealing clause or mention made of section 18. There is, however, no difficulty in the construction to be placed upon these acts. By. section 18, the Emit to which the council have the right to contract without notice of intention was fixed at $500; above that sum there must be a two-thirds vote and the publication of the notice six successive times. When this provision was complied with there remained no limitation upon their powers to contract. By the amendment a different method was adopted. It is perfectly clear that the legislature deemed the sum of $500 too large to be expended without giving the taxpayers notice, and consequently they reduced it to $200, and changed the publication of the notice of intention from six times to five. They also placed another check upon the council by requiring that when the amount to be expended should exceed $500, no contract should be entered into until the assessment therefor had been confirmed. The reason for the imposition of these limitations is common knowl- • edge. The recklessness of municipal authority in the expenditure of public money is sadly testified to by many a burdened taxpayer and oppressed community. This the legislature by this amendment intended to remedy by providing that notice should be given to the taxpayer that he might be heard and protected. And so far as the amendment provides a new rule, it must be held to have superseded the previous one provided by section 18.

The amendment also in terms excepts from the operation of section 18, contracts: “For the sprinkling and watering of streets,” and this is evidently excepted for the very reason which induced the legislature to impose the conditions as to the other class of work. The work first referred to originates with the common council so far as a large proportion of the persons affected by its actions are concerned, consequently a notice is provided for, while as to the latter, the persons affected are themselves the moving parties and it would be quite absurd to say that notice should be given to the persons who set the council in motion. The reason for the notice wholly fails as applied to them. No limitation is placed upon the council in ordering streets sprinkled, and this for the evident reason that before the work can be ordered, there must be presented a petition containing a majority of the owners of property situate upon the street proposed to be sprinkled. The cost for such" sprinkling is ascertained by the petitioners, the persons who desire the work done,, and who must bear the burden of its cost, none other are interested except the minority who are required to give way to the will of the majority. It is clearly evident from the language of section 19 that the legislature intended to except, as in times it has, the sprinkling of streets from the conditions imposed upon the ordering of other improvements and make the right to order this work dependent upon a majority petition. This is further evidenced by the subsequent provision of the section, that when the work exceeds $500 the council may not contract until- the assessment therefor is confirmed. The “sprinkling and watering of streets ” is again excepted, undoubtedly for the reason that the persons to be charged having knowledge of the expense, know the extent of their liability to assessment, and by petitioning for the sprinkling give assent to be taxed accordingly. When the intent of the legislature is ascertained it is the duty of the court to give it effect. Watervliet Turnpike Co. v. McKean, 6 Hill, 616-620; The People ex rel. Furman v. Clute, 50 N. Y., 451-457; Burch v. Newbury, 10 id., 374-389; Matter of Rochester Water Commissioners, 66 id., 413-422.

It is further claimed than the action of the council cannot be sustained in ordering the work done in June and having it relate back to the 15th day of May. It does not appear, nor is it claimed that plaintiff was in the smallest degree prejudiced by such action on the part of the council. To invoke the aid of the equitable powers of the court requires something more to be shown than a mere irregularity. There must be an invasion of a substantial right, which inflicts injury.

In the matter of Petition of Mutual Life Insurance Co., 89 N. Y., 530-586. This case, also, answers the objection that the roll was published by the assessors before completion.

Objection is also made that the assessors did not assess the property burdened in proportion to the benefits conferred by the work as required by the charter. Every assessment roll is presumed legal and valid until the contrary appear, the burden of overcoming such presumption rests upon him who attacks it.

In re Voorhis (90 N Y., 668), The proof upon the trial is not sufficient to overcome this presumption. While it showed a degree of laxness in making this assessment not to be commended, yet Assessor Ludwig testified that the assessment was levied as directed by the charter, in proportion to benefits conferred.

It follows from the views here expressed that the injunction must be dissolved and the complaint dismissed.


text:
    Tobias Campion v. The City of Buffalo.

      (Superior Court of Buffalo, Trial Term,

      Filed May, 1887.)

    1. Municipal corporation—Charter of the city of Buffalo, title 3, § 8, sued. 4—City ordinances, chapter 5, § 20—Regulations as to ERECTION OF BUILDINGS.
    The common, council of the city of Buffalo, by title 3, § 8, of the city charter, are empowered to enact ordinances, and, by subdivision 4 of said section, it is provided that they may exercise such power to prescribe the limits within which wooden buildings shall not be erected, and the manner in, and materials of which all buildings shall be constructed within such limits, and that every building erected or placed contrary to any ordinance passed under the provision last recited shall be deemed a common nuisance, and may be abated as such. By city ordinances, chapter 5, § 20, enacted under the authority of the law above cited, it is provided that in a certain portion of the city of Buffalo no wooden buildings shall be erected, and in a certain other portion none without the permission of the common council. Held, that the power having been conferred upon the common council to prohibit the erection of wooden buildings, this included the right to impose conditions on their construction.
    2 Same—Power to prohibit an act includes the power to impose conditions UPON THE PERFORMANCE OF IT.

      Held, that a departure from the terms imposed as the condition of the construction of such buildings was a violation of the permission given.
    3 Same—Violation of conditions imposed—Abatement of nuisances.

      Held, that a structure erected in violation of this ordinance having, by the terms of the statute, been declared a nuisance and subject to abatement as such, it was not necessary that an ordinance to that effect should be passed by the common council.

      4. Same—City ordinances, chapter 5, § 22—Nuisance may be abated.
    City ordinances, chapter 5, § 22, provides that nothing in that section contained shall in any manner impair or affect the right of the common council to treat such building or part of a building as a common nuisance, and to abate it as such by virtue of subdivision 4 of section 8 of title 3 of the city charter Held, that the common council were not limited to the imposition of a penalty for a breach of a permit granted pursuant to the provisions of section 20, but that the structure might be summarily abated as a nuisance.

      Giles Stillwell, for pl’ff; Frank Laughlin, for def’t.
   Hatch, J.

Title three, section 8, of the charter of the city of Buffalo confers power upon the common council of said city to enact ordinances. Subdivision four of said section provides as follows:

To prescribe the limits within which wooden buildings shall not be erected, and the manner in, and materials of, which all buildings shall he constructed within such limits. Every building erected or placed contrary to any ordinance passed under the last above provision shall be deemed a common nuisance, and may be abated as such.”

By virtue of this authority the common council of said city enacted section twenty of chapter five of ordinances. In and by said ordinance it is provided that in a certain portion of the city of Buffalo no wooden buildings shall be erected, and for a certain other portion of said city wooden buildings shall not be erected except permission be given by the common council of said city. The building which is the subject of this action is within the territory last mentioned. It is thus seen that the right to erect any wooden building is prohibited. The ordinance, however, provides that this prohibition may be removed in the discretion of the common council. Under what circumstances they will exercise this discretion rests wholly with them. The right to act under such circumstances involves the right to determine to what extent they will remove the prohibition; they may refuse to grant any permit, or they may impose conditions, upon the principle that the greater power includes the less. The person who obtains the permit has clear notice of the extent of the permission, also its limitations. No duty is imposed upon him to accept it, or to act under it, whatever he does is purely voluntary. A favor is granted where before none existed; if he chooses to act he must accept the conditions imposed, take that or nothing, but he cannot under the guise of a modification for his benefit erect erect such a structure as he may see fit, in violation of the permit. Such a construction would nullify the power vested in the common council. Mayor v. Hoffman, 29 La. Ann., 651-653.

In the present case the plaintiff was permitted to erect a wooden building under the following permit:

Tobias Campion—To erect frame dwelling house, 16x35, and two stories high, in rear of Nos. 439 and 441 Louisiana street, also fronting on Perry street, and not to be used as a stable, said building to be used for dwelling house purposes, and if used for other purposes, then this grant be null and void.”

The plaintiff accepted the permit, but erected a structure fifteen feet and three inches in width by fifty feet in length, and instead of using it for the purposes of a dwelling house he used it for a store room and barn. During the process of construction plaintiff was notified by the authorities that he was not complying with the permit, and was ordered to desist; this he utterly disregarded. Such erection by plaintiff was in direct violation of the ordinance and permit, and constitutes the structure a nuisance.

It is, however, earnestly contended' that even if this be so, conceding that plaintiff’s act was a clear violation of the ordinance and permit, yet the counsel having acted by resolution in declaring the structure a nuisance and directing its abatement, and not by ordinance, such action is without authority in law and void. To this doctrine I cannot assent. Subdivision 4, of section 8, title 3, in terms declares that the structure erected in violation of the ordinance is a nuisance and may be abated as such. It does not say that the common council must declare by ordinance that it is a nuisance, and by ordinance direct its abatement, but by force of the statute alone it is declared to be a nuisance to be abated.

What possible strength could be added to this mandate by the passage of an ordinance ?

Hosley v. Buffalo (93 N. Y., 662), is not in conflict with this view: There the council was directed to act by ordinance; here they act by virtue of the statute. Nor does the statute contemplate the giving of notice to the person who has violated the ordinance before action taken by the council. The power to declare the structure a nuisance and direct its abatement may be summarily exercised. Cronin v. The People, 82 N. Y., 318-323; Hine v. The City of New Haven, 40 Conn., 478-482 King v. Davenport, 98 Ill., 305-317,

The plaintiff had notice of the limitation contained in his permit, and by deliberately violating it invited the exercise of the power, and should not now be heard to complain that he is not given the opportunity of being heard. Nor are the authorities limited to an action for penalties, which the ordinance provides, for by chapter 5, section 22, of ordinances it is provided:

“But nothing in this section contained shall, in any manner, impair or affect the right of the common council to treat such building, or part of a building, as a common nuisance, and to abate it as such by virtue and in pursuance of subdivision 4 of section 8 of title 3 of the charter of said city.”

Thus showing that not only are they not limited to the penalty, but that subdivision 4 of section 8 of the charter was construed as providing a summary remedy.

It follows that the injunction must be dissolved and the complaint dismissed.


text:
    Byron M. Schultz v. Philip Griffin.

      (Superior Court of Buffalo, Trial Term,

      Filed May, 1887.)

    1. Contract—What "will not render it void for uncertainty.
    By a contract entered into between the parties to this 'action, it was provided that the plaintiff should, for twenty days, have the exclusive right to effect a sale of the defendant's farm, and that in event of his securing a purchaser therefor he should be entitled to receive the sum of $1,000. The conditions of sale were the payment of $2,000 and two mortgages. The plaintiff secured a purchaser who executed a v.ilid, binding contract of purchase in which the description of the premises varied from that in the contract between the parties to this action Held, that the description being sufficient to enable the land to be located, the contract was not void for uncertainty.
    2. Same—What is performance of condition

      Held, that the contract of purchase providing for the payment of a mortgage, the description of which, in all aspects excepting as to the party by whom it was held tallied with the description of the mortgage in . the original contract, an objection taken that- there was a material variance between the contracts was not tenable on that ground.
    3 Same—Compliance with terms of—What is.

      Held, that by an agreement to assume the other mortgage it must be understood that the payment thereof was assumed, and that such was a compliance with the terms of the contract.

      Warren F. Miller, for pl’ff; Franklin D. Locke, for deft.
   Hatch, J.

The contract which furnishes the basis of this action is crudely drawn, yet. enough appears to enable the court to arrive at'the intent and meaning of the parties In and by the contract it is provided that the plaintiff shall, for twenty days, have the exclusive right to effect a sale of defendant’s farm. In the event of securing a valid, binding contract of purchase plaintiff became entitled to receive the sum of $1,000. The conditions of such sale were the payment of $2,000, $1,000 to be paid at time of execution of contract; the payment of two mortgages, one held by the Buffalo Savings Bank for $5,000, the other held by Mr. Williams for $2,500, the balance payable in cash April 1, 1887. This contract bears date July 31, 1886; was executed by defendant, who clearly understood its terms. Plaintiff at once commenced search for a purchaser, and found one in the person of F. C. Longmaker, who executed a valid, binding contract of purchase bearing date on the 18th day •of August, 1886, but nineteen days had elapsed, including the days of execution of each contract.

The contract of purchase describes the land as containing eighty-six and one-half acres upon which defendant then resided, lying partly in Buffalo and partly in the town of Tonawanda, then bounds it upon three sides, and concludes by stating that it was “formerly known as the Van Allen farm.” The quoted clause is a variance from the defendant’s contract, where it is designated as the “Owen’s place,” but this is immaterial, as the description is sufficient to enable the land to be located, and is not void for uncertainty. The purchase-price is stated as being $20,000, $1,000 in cash, and the balance, $19,000, by assuming a mortgage to the Erie County Savings Bank for $5,000; also a mortgage held by Mr. Williams for $2,500, and $11,500 to be paid in cash April 1, 1887. It is claimed that there is a material variance between the two contracts in two particulars:

First. That there was no mortgage held by the Erie County Savings Bank for $5,000, or any other sum which was a hen upon said premises; and,

Second, That the agreement contemplates a payment of the mortgages, while the contract only provides for assuming them, in which event the defendant would still be liable upon his bond which accompanied the mortgages, while under his contract he was entitled to an absolute discharge. These objections must fail. The first, for the reason that the contract of purchase provides that the purchaser will assume a $5,000 mortgage; there was but one mortgage for that amount a lien upon the premises. The only mistake is in naming the holder, but there can be no doubt but that under the contract to assume, a court would decree that the purchaser had assumed the payment of a mortgage for that amount to the true holder. The material thing which the purchaser agreed to do was to assume a mortgage resting upon the premises of $5,000; this the contract clearly provides for. As to the second objection, the language is, ‘ ‘ by assuming a mortgage.” Assume to do what? It can only be construed to mean that the purchaser assumes the payment of the mortgages. If the mortgages were due, then the affect of the agreement is to pay them at once, as there is no limitation in the contract of purchase as to when he will pay._ The construction which must be placed upon that clause in the contract is, that the purchaser assumes to pay the mortgages in accordance with their terms; if the whole amount is due, then the liability of the purchaser is fixed to pay them at once; if not due, the holder is not bound to accept the money unless he so wills, either from the defendant or any one else. The purchaser is bound to pay in accordance with their terms. This is the extent to which defendant could ask, and to that extent the contract goes.

The contract of purchase is in substantial compliance with defendant’s agreement. The plaintiff performed all the conditions required by the contract, and by reason thereof becomes entitled to recover of the defendant the $1,000 stipulated to be paid.


author: Hyatt, J. McAdam, Ch. J.

text:
    Monroe L. Simon, App’lt, v. The Aldine Publishing Company, Resp’t.

      (City Court of New York, General Term,

      Filed January 4, 1887.)

    Contempt — Fictitious sureties — Code Civ. Pro. , § 14, subd. 2, 8— Power to punish a surety for contempt exists although he is not TECHNICALLY A PARTY TO THE ACTION.
    The officers of a corporation may be punished for contempt for putting in fictitious sureties in an action in which the corporation is a party.
    Appeal from an order made at a special term of this court, denying the plaintiff’s motion to punish for contempt James Sutton, one of the sureties on the undertaking given herein by the defendant (see 5 N. Y. St. Rep., 906) upon an appeal to the court of common pleas.

      E. J. Myers, for app’lt; Thomas Darlington, for James Sutton.
   Hyatt, J.

The learned judge below found the facts to be well proven in these words :

“The examination taken under proceedings supplementary to execution herein before a referee, in which said surety, as well as his co-surety and other witnesses testified, and the additional evidence submitted, satisfy me that some of these statements made by the said surety (who was also the president of the defendant corporation) upon his justification as such surety, were not true, and were known to him at the time to be untrue. And that he was then insolvent, with no present means of meeting the obligation with which he had entered as surety, and with no intention of paying the same;” and he thus concludes: “I am satisfied that the sureties on the undertaking referred to were fictitious.”

The court held, however, as a matter of law, that it had no power to ■ punish the guilty party for contempt under subdivision 2 of section 14, Code of Civil Procedure, providing that a court of record has power to punish “ a party to the action or special proceeding for putting in fictitious bail or a fictitious surety, or for any deceit or abuse of a mandate or proceedings of the court.” That such provision did not cover the present case, in that the person sought to be punished was not a party to the action.

Section 2284, Code of Civil Procedure, provides that a corporation may be fined for contempt, and in The Mayor, etc., v. The N. Y. and S. I. Ferry Co. (64 N. Y., 622), it was held that a corporation may be .punished for contempt.

Where the policy of the law is directed to a corporation it cannot be evaded by its officers procuring that to be done in its name for which a natural person would be punished; the corporation could not commit the act of contempt except through its executive officers. It logically follows, therefore, that its president and secretary must necessarily be hable for an act done by them under the corporate name, which but for them the corporation could not have done. Davis v. Mayor 1 Duer., 451; People v. Compton, 1 id., 512.

The learned judge held that because “the corporation is now insolvent and has practically ceased to exist, that the remedy would be fruitless.” This is no answer, however, why the president should not be punished individually. Hoff v. Collector of Jasper Co., 20 Am. L. Reg., N. S., 435.

The court belo^y adopted the view that this application could only be sustained under subdivision 2 of section 14, Code of Civil Procedure.

This was error, not only in treating the surety as a party to the action, but also in not pushing the offending surety for putting in a fictitious bail. The corporation could be punished for the act under subdivision 2 of section 14, and the surety punished under subdivision 8 of the same section.

But the power of the court is not limited to the cases specified in section 14; it has been so expressly decided by the court of appeals in reviewing the classification of con-tempts, civil and criminal, and the punishment therefor as provided by the Code of Civil Procedure. People ex rel Munsell v. Court of Oyer and Terminer, 101 N. Y., 245.

In the case at bar, it is sought to punish a surety for contempt in becoming fictitious bail whereby the right or remedy of the plaintiff has been defeated or impaired. Recent adjudications clearly establish the right of courts of record to punish for contempt, and that tho conduct of an incompetent and worthless surety^ in appearing in open court and insisting on his sufficiency under oath, is a fraudulent imposition on the court to the prejudice of the plaintiff, and presents a case of gross contempt. Hull v. L'Eplatinier, 5 Daly, 534; Eagan v. Lynch, 3 Civ. Pro. R., 236; Stephenson v. Henson, 6 id., 43, 50; Diamond v. Knoepfel, 3 N. Y. State Rep., 291.

The perjury of a party does not of itself constitute a contempt; it is by the evidence of the misconduct of the party. But the insolvency or fictitiousness of the surety and his consequent imposition upon the court is the actual contempt for which punishment is imposed.

Such punishment should have been imposed in this case.

The order denying the motion should be reversed and the motion should be granted.

McAdam, Ch. J.

I concur in the conclusion arrived at by Judge Hyatt, for the reason that the facts have been found against the surety by the court below, and the common pleas have authoritively declared that the power to punish a surety for contempt exists, although he is not technically a party to the action. Hull v. L'Eplatinier, 5 Daly, 534.

This court has nothing to do but follow the instruction of. our appellate court by imposing the proper fine, which may be done on the settlement of the order by Judge Hyatt. • The merits have been disposed of, so that the rehearing at special term is unnecessary.

. It is true that Nathans v. Hope (5 Civ. Pro. R., 401), in which the fraudulent surety was fined as for contempt, was reversed by the court of appeals (100 N. Y , 615), but not on a question of power, but on the insufficiency of the proofs. The circumstances of it leave the implication that if the proof had been sufficient the order made would have been affirmed.

Judge Hyatt will settle the order.


author: McAdam, Ch. J.

text:
    Thomas Russell, App’lt, v. Micheal Giblin, Resp’t.

      (City Court of New York, General Term,

      Filed February, 1887.)

    1. Landlord and tenant—Measure of damages on breach of covenant BY LANDLORD TO FURNISH STEAM POWER.
    The damages naturally flowing from, the breach of a landlord’s covenant to furnish steam power, is what it necessarily costs to obtain the power from other sources, or if it cannot be obtained the diminished value of the premises in consequence of the want of it.
    2. Bill of particulars.
    A bill of particulars of special damages should be as full and specific as the facts admit of.
    The plaintiff, tenant of the buildings 24 to 34 New Chambers street, sues the defendant, his landlord, for the breach of a covenant of. the lease, wherein and whereby the defendant agreed “ to furnish the plaintiff with sixiforse steam power and live steam daily, as required, from 7.30 a.m. until 6 p. m., for the general business of bookbinding, to be carried on by the plaintiff in said premises during the term.” The defendant demanded and the plaintiff furnished a bill of particulars of his claim. The defendant moved for a further and more specific bill, and from the order granting the application the present appeal is taken.

      Wm. R. Wilder, for app’lt; Souther & Stedman, for resp’t.
   McAdam, Ch. J.

The damages naturally flowing from the breach of a landlord’s covenant to furnish steam power is what it necessarily costs to obtain the power from other sources, or if it cannot be so obtained, the diminished value of the premises in consequence of the want of it. The plaintiff does not measure his damages in either form. He claims for interruption to his business, enforced idleness of his employees and the like, all of which are in the nature of special or consequential damages, and how far they may be recoverable is a question we are not now called upon to decide. Winne v. Kelley, 34 Iowa R., 339. The nature of the damages has, however, a bearing upon the question as to what the bill of particulars thereof should contain, and as the object in stating special damages is to let the defendant know what charges he must prepare to meet, the statement must always be as full and specific as the facts will admit of. The information cannot be refused on the score of inconvenience. In pleading special damages, the names of parties affected have been in several cases required to be stated even in the declaration (Westwood v. Cowne, 1 Starkie R., 137; Barnes v. Prudlin, 1 Sid., 396. Knickerbocker Life Insurance Co. v. Ecclesine, 11 Abb. [N. S.], 385, and even in actions for slander the plaintiff may be required to furnish the names of the persons to whom the slanderous words were spoken. Steibeing v. Lockhaus, 21 Hun, 457.

The rule is not unreasonable and has never been extended so far as to require a party to do an absurd or impossible thing; but what information he can or ought to be able to give, he must. The minister of a dissenting congregation alleged that in consequence of the slanderous words of the defendant, “the persons frequenting the said chapel have wholly refused to permit him to preach, and have withdrawn from him their countenance and support and have discontinued giving him the gains and profits which they had usually given, and otherwise would have given.” Lord Kenyon held this sufficient, asking how could he have stated the names of all his congragation ? Hartley v. Herring, 8 T. R., 130. In this instance the names sought are those of employees of the plaintiff, who were put in enforced idleness for want of the steam power the defendant agreed to funish. The plaintiff can or ought to be able to furnish the required information, and the inconvenience of doing it is no answer to the motion. Courts are liberal in requiring bills of particulars as a sort of curative aid in the administration of justice by preventing surprise, and giving each party a reasonable opportunity to produce his proofs and to meet and sift those of Ms adversary. Dwight v. Germania, 84 N. Y., 493; Tilton v. Beecher, 59 id., 176; People v. Tweed, 63 id., 194. The paragraphs of the order from A to F inclusive, are in accordance with these views and are correct. The original bill of particulars furnished in the respects pointed out in paragraphs E and F of the order appealed from was wholly insufficient. Paragraph G- relates wholly to matters of proof which the plaintiff may be required to give upon the trial, and while he is bound to enumerate in detail, the items of his demand, he cannot be required to furnish evidence in advance of the trial.

The order appealed from will be reversed as to paragraph Gr, and in other respects affirmed, without costs.

Nehrbas, J., concurs.


author: McAdam, C. J.

text:
    Theodore W. Myers, App’lt, v. James M. Hunt, assignee, etc., Resp’t.

      (City Court of New York, General Term,

      Filed February, 1887.)

    1, Lease—Liability of assignee fob benefit of cbbditobs on lease HELD BY ASSIGNOR.
    An assignee for the benefit of creditors has an election to accept or decline the lease of premises previously held by his assignor. If he enters into possession of the premises and transacts business there, he will be deemed to have accepted it, and is liable for the rent during the period of occupation. If he enters, inventories, packs and and removes the goods within a reasonable time, and no longer occupies the premises, he is not liable for rent. Such acts do not amount to an election to take the term.
    2. Acts.
    Acts are sometimes more expressive than words, and as a rule, the intent of a party is inferable from his acts.
    The plaintiff on February 20, 1885, leased to Evans & Darling, the premises No. 6 Bond street, for five years from May 1, 1885, at the yearly rent of $4,000, payable quarterly. On the 7th of August,'‘ 1885, Evans & Darling made a general assignment for the benefit of their creditors, in which the defendant was named as assignee. The plaintiff was made a preferred creditor for the quarter’s rent due August 1, 1885. The defendant took possession of the premises upon accepting his trust, and continued in possession until November 22, 1885, a period of three and one-half months., He put his sign on the premises and disposed of the goods therein, having clerks and employees to assist in the business: The lease is not mentioned in the assignment, but the defendant knew of it before and at the time of accepting the trust. The present action is for rent from the 7th of August, 1885, to November 22, 1885, the period of the defendant’s occupation, aggregating $1,166.66. There is no material dispute as to the facts. Upon the conclusion of the trial, the court directed a verdict in favor of the plaintiff for the amount claimed, with interest, and from the judgment entered on this direction the present appeal is taken.

      A. J. Dittenhoefer, for app’lt; Simpson & Werner, for resp’t.
   McAdam, C. J.

The only question on which the defendant asked to go to the jury, was as to whether the defendant had accepted the lease. This, on the evidence, was not a question of fact, but of law, because his acts amounted to an acceptance of it. A leasehold interest held by an insolvent debtor is property, in some cases valuable, which passes to his assignee under a general assignment for the benefit of creditors, whether mentioned in the instrument or not. The assignee knew of the existence of the lease; it was executed in his presence and was witnessed by and acknowledged before him, and he was put to his election whether to accept or decline to take it. If the lease is a valuable interest, the assignee owes it to the creditors he represents to accept and protect it, and' realize for their benefit whatever it may produce. If it be an interest of an unprofitable character, likely to create a charge upon the estate, it is his duty to decline to take it, leaving the landlord to take such remedy in respect thereto as he thinks best. If, however, the assignee, by agreement or by his acts, once elects to take, the election is final, and cannot thereafter be renounced. If the assignee enters for the purpose of inventorying, packing and removing the goods, accomplishes this task and abandons the premises within a reasonable time, these acts will not indicate an intention to accept the term, and he is not liable éither on the lease or for use and occupation, unless perhaps he persists in keeping the keys or declines to surrender possession, acts which might be construed into an exercise of ownership over the lease, inconsistent with a declination to accept it.

Instead of packing and removing the goods, abandoning the premises and surrendering possession, acts which would have made his intention not to accept clear, the defendant acted in the opposite direction, one consistent only with an election to take the term. He located on the premises, put up his sign, continued clerks and employees and did business substantially as his assignors had previously ¡done, and this conduct continued for about three and one-half months. If these unequivocal acts do not amount to an election to take, it is difficult to imagine a case where an assignee by his conduct, could be held to have made such an election. He used, occupied and enjoyed the landlord’s property for the benefit- of the estate he represented, and exercised acts of ownership over the term as effectually as use occupation and ownership by a tenant are possible, and as rent issues out of such a use of property and- from nothing else, it is hard to reconcile these acts of the assignee on legal or business principles, except as indicative of an intention on his part to pay the reasonable value of the thing, which he had exercised the option of appropriating and enjoying. The defendant might have sent the goods, after they were packed, to an auction house or placed them on sale elsewhere, or he might even have closed the business. by sale at auction, had on the premises, for these acts if promptly done, would not have indicated an intention to accept the lease, for they were consistent with a faithful ¡performance of the assignee’s ordinary duties, but he could not run a business even as assignee, in the premises of another without doing what the common lot of people have to do in every community, and that is to pay rent for the privilege.

An assignee under such circumstances is not exempt from the ordinary business calls and burdens which the mercantile community in general have to bear, meet and provide for on pay day. Assignees are not privileged individuals in so broad a sense; they have rights and immunities it is true, but these are to be measured by the exigencies and circumstances which arise as they are called upon to administer their trust, with due regard of course to its character and importance and the occasion. They are appointed to act and their duties sometimes require diligent effort, and at all times demand more efficiency than comes from mere inertia. Their acts, like those of other individuals, are at times more expressive and impressive than their words. Indeed, the intent of a party is often proved by his acts; sometimes in contradiction of his word. While words may explain an act, they sometimes disguise it. Words may hide the truth, acts expose it, hence the rule that intent is generally infer-able from the act.

It needed no words to explain that the acts of the defendant constituted an election on his part, as the acts themselves are sufficiently expressive to be intelligently understood to mean that, without the aid of language. Assignees have a reasonable time to determine whether a lease is of value to the estate, and they may for this purpose experiment with the sale of it. But they owe certain duties as well, and may incur liabilities in their performance, such as for fees of counsel, wages to employees engaged _ by them, and for material and labor in packing and removing goods, and even for rent of premises or warehouse accommodations. They cannot appropriate and use the property of another longer than the reasonable character of their duties requires, without making fair compensation in return. On the principles stated, we have failed to discover any logical reason in law, justice or morals which exonerates the defendant from liability for the use of the property he practically made his own for nearly three and a half months.

The letter sent October 7, 1885, to the effect that the defendant would not assume the lease, came too late. The defendant had then been in possession of the premises for two months, and the election previously made could not be recalled. This is the construction the law, in doing even justice between parties, impresses upon the defendant’s previous conduct. He did not abandon possession of the premises until November 22, 1885, and the verdict directed holds him for the rent during the time of his actual occupation, the period of which is not in dispute, for the defendant did not ask to go to the jury on this question, but on the single proposition of acceptance of the lease, which the law operating on the facts, settled adversely to the defendant. These views are in accord with the authorities. Burrill on Assignments (3d ed.), § 374; Hanson v. Stevenson, 1 Barn. & Ald., 303; Thomas v. Pemberton, 7 Taunt., 206; Clark v. Hume, 1 Ryan & M., 207; Jones v. Hausmann, 10 Bosw., 168; Journeay v. Brackley, 1 Hilt., 447; Johnston v. Merritt, 10 Daly, 308; Einstein v. Sommers, Court Journal of February 1, 1887.

The verdict was right, and the judgment entered upon it must be affirmed, with costs.

Nehrbas and Hyatt, JJ., concur.


text:
    Jennie Smith, App’lt, v. John Lynch, Resp’t.

      (City Court of New York, General Term,

      Filed February, 1887.)

    Abatement op action por personal injury—Code Civ. Pro., § 764.
    At common law, a personal right of action dies with the person. Section 764 of. the Code, in respect thereto, refers to a verdict or decision which remains unopened and unimpaired at the time of the death of the judgment creditor, and not to a case where, prior to such death, the defendant was allowed to come in and defend, the judgment standing merely as security for any futuie recovery.
    The plaintiff brought the present action to recover $2,000 damages for an assault and battery alleged to have been committed upon her by the defendant. Alter issue joined, the cause was reached on the general calendar, and on the failure of the defendant to appear, an inquest was taken June 11, 1886, and the jury assessed the plaintiff’s damages at $250. Judgment was 'entered and execution issued on the same day. The defendant moved to open the default, and on August 11, 1886, his application was granted; he was allowed to come in and defend, the judgment and all proceedings thereon to stand as security. The cause was restored to the calendar, and while awaiting trial, the plaintiff died intestate. Letters of administration were granted to Andrew V. Smith, who thereupon applied for leave to continue the action as administrator. The application was denied, and from such denial the appeal is taken.

      Alex. R. Butts, for app’lt; S. J. O'Hare, for resp’t.
   McAdam, C. J.

It is conceded, that at common law, a personal right of action dies with the person, but it is claimed that the present cause of action survived by force of section 764 of the Code, which provides that “after verdict, report or decision in an action to recover damages for a personal injury, the action does not abate by the death of a party, but the subsequent proceedings are the same as in a case where the cause of action survives.” This provision was evidently intended to apply to cases where a verdict, report or decision is obtained and remains unopened, unreversed and unimpaired at the time of the death of the judgment creditor. It was never intended to apply to an inquest or default opened during the life time of the party. The • temporary verdict obtained by the plaintiff was not an asset at the time of her death, it was a mere security like a bond or undertaking that, if on the trial to be had, she _ obtained a verdict, it might be secured by the lien of the judgment entered on the defendant’s default. She unfortunately died before the trial, the result of which, if in her favor, the judgment by default was to secure, and the security was only to be available in case of her ultimate success. The object of section 764 was to save to the estate of a deceased party any recovery likely to enhance the estate of the decedent (Kelsey v. Jewett, 34 Hun, at p. 14), but not to give a right of succession to untried causes of action for personal injuries, which, if unsuccessful in their prosecution, might bring the estate into debt. The cause of action died with the plaintiff; it has abated and is not the subject of prosecution by her legal representative.

The order must be affirmed, with costs.

Hyatt, J., concurs.


text:
    The Tribune Association, Resp’t, v. Nathaniel Sleeman, Appl’t. In re Edward H. Brown v. The Same.

      (City Court of New York, General Term,

      Filed February, 1887.)

    PRIVU-BOB OF NON-RESIDENT SUITOR.
    Process cannot tie served on a non-resident, though not a witness, while attending court in this state.
    The defendant, a resident of Ansonia, in the state of Connecticut, came to the city of New York to attend court in an action in which he was plaintiff. Before he had an opportunity to return to Connecticut, the summons in the action first entitled, and an order in supplementary proceedings in the second action were served upon him. The defendant moved to set aside the service, on the ground that it could not legally be made while he was attending court as a party to a judicial proceeding then pending. The motions were denied, and the defendant appeals.

      R. J. Moses, for app’lt; C. A. Runkle, for resp’t.
   McAdam, Ch. J.

This court, in Schlesinger v. Foxwell, (1 City Ct.R., 461), held that parties and witnesses while attending in good faith any judicial tribunal were privileged from arrest, but that immunity from service of ordinary process was limited to witnesses, and did not include parties. This was in accordance with the rule laid down in Graham’s Pr., 130 (and in 1 Wend., 293; 7 Abb. Pr., N. S., 70; 57 How. Pr., 171), and upon the just principle that if a nonresident voluntarily makes himself a suitor in our courts by instituting litigations for his own benefit, he cannot complain if our citizens seek to collect their debts by ordinary process from him. If he were an inhabitant of this state his attendance in court would have given him no immunity, and on general principles a non-resident should not be placed on better ground than our own citizens. This appears to be right and seems fair enough as matter of comity, but our court of appeals has decided that process cannot be served on a non-resident of the state, though not a witness, while attending court here, and that the immunity does not depend upon statutory previsions, but is deemed necessary for the due administration of justice. Matthews v. Tufts, 87 N. Y., 568. This authority effectually shields non-resident suitors not only from civil arrests, but from service of all process eundo morando et redeundo, and settles the present contention.

The orders appealed from must be reversed, but under the circumstances without costs.

Nehrbas, J., concurs.


text:
    Charles Jones, Resp’t, v. Roger A. Sherman, App’lt.

      (City Court of New York, General Term,

      Filed February, 1887.)

    Supplementary proceedings—Contempt—What costs allowed—Code Civ. Pro., §§ 2455, 2456.
    The costs on reversal of an order directing a commitment for contempt in supplementary proceedings are but ten dollars costs and disbursements.
    The defendant was adjudged guilty of contempt in supplementary proceedings had herein; he appealed to the general term, and the order for committal was reversed with costs. The defendant claimed, and the clerk taxed, sixty dollars costs, besides disbursements, in defendant’s favor under section 3240 of the Code. The plaintiff moved for re-taxation and the special term reduced’ the amount to ten dollars costs and disbursements. From this order the defendant appeals.

      L. F. Post, for app’lt; N. Quackenbos, for resp’t.
   McAdam, Ch. J.

Proceedings supplementary to execution are no longer regarded as proceedings in an action, but distinct “ special proceedings ” (Throop’s Code, section 2433, and notes); yet the mode of reviewing orders made therein, and the practice relating thereto, are the same as if the order had been made in an ordinary action (section 2433, subd. 2). The amount of costs recoverable in such proceedings is regulated by sections 2455, 2456. The motion to punish for contempt went to the general term. It was, therefore, nothing more than a continuation of the motion on appeal in the same court. There it was in the category of motions, and no more than ten dollars could be allowed as costs besides disbursements. Phipps v. Carman, 26 Hun, 518.

The rule is that appeals from orders are merely regarded as motions for the purpose of costs (Parsons on Costs, 99). As the costs in these proceedings are specially prescribed, section 3240, which relates only to costs in special proceedings “not otherwise regulated,” has no application to the present contention.

The court below was right in limiting the costs on appeal to ten dollars costs and disbursements (People v, Cooper, 10 Week. Dig., 77), and the order must be affirmed, with costs.

Hyatt, J., concurs.


text:
    Rosie A. Forrest, Resp’t, v. Charles H. Thompson et al., App’lts.

      (City Court of New York, General Term,

      Filed February, 1887.)

    Costs—When defendants entitled to separate bills—Code Crv. Pro., § 3229.
    Defendants not united in interest interposing separate answers in good faith by different attorneys are entitled to separate bills of costs.
    Appeal from an order made by the trial judge limiting the defendants to but one bill of costs.

      J. Cummins and others, for app’lts; Sarlton & W. E. Iliff, for resp’t.
   McAdam, C. J.

The defendants are not united in interest, interposed separate answers by different attorneys, and there is no evidence that the several appearances were in bad faith, and for the purpose of incurring costs. The defendants were, therefore, entitled to separate bills of costs (Lane v. Van Orden, 11 Abb. N. C., 228; Royce v. Jones, 23 Hun, 452; Delaware L. and W. R. R. Co. v. Burkhard, 2 N. Y. State R., 184, Code, § 3229), and the order limiting them to one bill must be reversed, with costs.

Nehrbas and Hyatt, JJ., concur.


author: Hyatt, J.

text:
    Theodore Herman, John Murphy and Oscar W. Herman, Resp’ts, v. Herman Bencke, App’lt.

      (City Court of New York, General Term,

      Filed February 25, 1887.

    1. Pleading—Answer—Contradictory, in terms not allowed.
    The answer in an action on a note alleged that the note was delivered “without ” value,and on “ promises and considerations,” which have failed. It is a contradiction in its terms, and, therefore, not permitted by the rule of practice.
    2. Bills and notes—Transfer on last day of grace.
    The transfer of a note on the last day of grace, before actual dishonor, is a bar to the equities sought to be interposed.
    Appeal from a judgment directed by the court in favor of the plaintiff.

      Connoly, Lewinson and Mack, for resp’ts; Frank F. Van Derveer, for app’lt.
   Hyatt, J.

The plea contained in the answer is bad and indefinite; it alleges that the note was delivered “without-value,” and on “promises and considerations,” which have failed.

These promises may have constituted a good consideration, as mutual promises generally do. The answer, however, is a contradiction in its terms. It is a pleading,, divided against itself, a form not permitted by the rule of practice.

Although the note in question was transferred on the last day of grace, yet it was transferred before actual dishonor and so as to bar the equities sought to be interposed. Continental National Bank v. Townsend, 87 N. Y., 8, 10.

That the note in suit was presented and protested on the day when it was due, there is no dispute.

The maker or acceptor had the whole day to make payment, and although he should in the course of the day refuse payment, yet, if he subsequently, on the same day, made payment, it would be good, and the notice of dishonor would be of no avail. 2 Daniel, Neg. Inst., § 1235.

Whether or not the note was given to the plaintiffs for sufficient value, is entirely immaterial under the present answer.

The judgment is well founded and should be affirmed.

McAdam, Ch. J., concurs.


text:
    Robert Sampson, App’lt, v. Harvey Lewis, Resp’t.

      (City Court of New York, General Term,

      Filed February 25, 1887.)

    1. Sale of stock—Tendee—When not necessaby.
    When a seller of stock refuses or neglects to perform, a tender of money by the purchaser is not necessary. '
    2. Same—Evidence of inability to peefobm.
    In this case the defendant did not have the stock, and paid at the time of the demand $500 as damages for failure to deliver. This is sufficient evidence of his inability to perform.
    Appeal from a judgment of the trial term entered herein dismissing the plaintiff’s complaint.

      Cromwell G. Macy, for app’lt; Charles H. Daniels, for resp’t.
   Hyatt, J.

This action was brought to recover a balance of $143.75, claimed by plaintiff to be due from the defendant as damages arising from the failure of the defendant to deliver certain stocks, purchased by the plaintiff under written contracts.

Plaintiff demanded the stock within the time allowed by the contracts; defendant was unable to deliver the stock when demanded, and paid to the plaintiff $500 on account of damages for non-delivery.

The plaintiff was ready and willing to pay for the stock.

The court dismissed the complaint upon the ground that by the testimony of the plaintiff, “he had not fulfilled his condition precedent to his right to a recovery.”

This was error. When a seller of stock refuses or neglects to perform, a tender of money by the purchaser is not necessary. Currie v. White, 45 N. Y., 832; Wheeler v. Garcia, 40 id., 524.

In the case at bar the defendant did not have the stock, and paid at the time of the demand $500, as damages for failure to deliver. This is sufficient evidence of his inability to perform.

The defendant further urges that plaintiff’s damages should be reduced by deducting the sum of $250, on the ground that that sum was the consideration for the contracts and not a part of the plaintiff’s alleged damages.

The defendant, therefore, claims that the plaintiff’s alleged damages are less than the sum of $500, which he admits that he has received and that he would not have been _ entitled to a verdict even if he had been able to prove a valid tender.

The answer to this is that the defendant offered no evidence and gave no explanation or proof of usage as to the meaning of the technical term, call” which would distinguish it from other contracts on which partial payments in advance are made or margins are put up as indemnity.

The plaintiff made out a prima facie case and the motion to dismiss shdiild have been denied.

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

McAdam, C. J., and Nehrbas, J., concurs.


text:
    Emma Birney, Resp’t, v. Jonas S. Wheaton, App’lt.

      (City Court of New York, General Term,

      Filed February 25, 1887.)

    1. Inn-keeper’s and boarding-house keeper’s lien—Married women.
    A boarding-house keeper has no lien on the separate personal effects 'and wearing apparel of the wife living at the boarding house with her husband, where the husband was received under a contract to furnish board for himself and wife.
    2. Pleading—Amendment—Code Crv. Pro., §§ 539, 540 and 783.
    It is within the power of the court to allow amendments and excuse default. Code Civ. Pro., §§ 539, 540 and 783.
    Appeal from a judgment in favor of the plaintiff entered upon a verdict of a jury, and from an order denying a motion for a new trial upon the minutes.

      W. W. Foster, for resp’t; T. M. Tyng, for app’lt
   Hyatt, J.

This action was brought to recover a wife’s personal property, consisting chiefly of her wearing apparel, detained by the defendant, under claim of a lien for board furnished to one E. N. Birney, the husband of plaintiff, and plaintiff as his wife.

The primary question is, as the appellant states it, “whether the defendant’s Hen did not attach to the wife’s paraphernalia ?”

The law is so weH settled upon this point that it precludes any doubt upon this question in its application to the case at bar.

The answer pleads a joint liability on the part of the plaintiff and her husband, and not a separate debt owing by her.

It is neither aHeged nor claimed that the plaintiff promised to pay the biU. The law imposes the obHgation of supporting the wife on the husband, and presumes the husband alone liable for such hoard, where there is no allegation or claim that the wife promised to pay the biU or charge her separate estate with it.

The common law gave to inn-keepers a Hen on the goods of their guests. This Hen was subsequently, by statute, extended to boarding-house keepers “to the same extent and in the same manner as inn-keepers.” Laws 1860, chap. 446.

Under this statute, in McIlvaine v. Hilton (7 Hun, 594), where the facts were substantiaUy as here, it was held that a boarding-house keeper had no Hen on thé separate personal effects and wearing apparel of the wife Hving at the boarding-house with her husband, and that her wearing apparel (styled paraphernaHa by the appeHant) formed part of her separate property, and that a boarding-house keeper’s Hen did not attach thereto, where the guest was received under a contract to furnish board for himself and wife who accompanies him.

The husband, therefore, is Hable for the board, and as nothing is due from the wife, it foHows that her goods can not be detained.

The court amended the record by considering a .reply as filed. If this was necessary, it was under the circumstances sufficiently supplied at the trial. The defendant did not allege surprise, and the result shows that a verified reply would have been of no benefit to him,

It was within the power of the court to aHow the'amendment and excuse the default. Code of Civil Procedure, §§ 539, 540 and 783.

This power is not purely statutory. It is inherent in the very constitution and existence of the court. Vanderbilt v. Schreyer, 81 N. Y., 648.

The judgment and order appealed from should be affirmed, with costs.

McAdam, Ch. J., concurs.


text:
    Axel Hirschsprung, App’lt, v. Carsten Boe, Resp’t.

      (City Court of New York, General Term,

      Filed February 25, 1887.)

    Practice—Examination before triar.
    A party will not be permitted to examine his opponent before trial to find out what he is going to prove “ in order to prepare to rebut any such evidence if offered at the trial.”
    Appeal from an order vacating an order for the examination of the defendant before trial.

      Ullo, Ruebsamen and Hubbe, for app’lt; George H. Foster, for resp’t.
   Hyatt, J.

The plaintiff’s cause of action appears to be based upon the allegations that on October 31, 1884, he paid to the defendant $500, which he directed the defendant to invest in the purchase of and sale of petroleum; that shortly afterwards the defendant informed him that the transaction had resulted in a profit of seventy-five dollars, and that about a week after that time defendant reported to him the loss of fifty dollars; that immediately thereafter he instructed the defendant not to enter into any other transactions and demanded payment of $525.

The affidavit on which the order for the examination was based appears to be insufficient to sustain it, in that it nowhere states that the testimony of the defendant is material or necessary to enable the plaintiff to prove his case.

It frankly and positively states that the desire of the plaintiff is to find out what the defendant is going to prove as his defense “in order to prepare to rebut any such evidence if offered at the trial herein ”

This is not permitted by the authorities Fourth National Bank, N. Y. City, v. Boynton, 29 Hun, 441.

It does not appear that the defendant’s examination before trial is necessary to make out his case, but on the contrary it is clear that the purpose of the plaintiff was to discover the testimony which the defendant could give in support of his defense. The order was properly vacated.

Order appealed from affirmed, with costs.

McAdam, Ch. J., and Nehbras, J., concur.


text:
    The Germania Fire Insurance Company, Resp’t, v. Samuel F. Myers et al., App’lts.

      (City Court of New York, General Term,

      Filed March, 1887.)

    1. Landlord and tenant—What Constitutes eviction.
    Cutting gas and water pipes, whereby the tenant by the act of the landlord is deprived of light and of water, and the use of the water closet appurtenant to the rooms demised, constitute an eviction.

      2. Same—When bent due.
    Tenancies until a particular day expire by custom at 12 m. of the day designated. The tenant has until the last minute of the day on which rent falls due to make the payment, and no action or other legal proceeding for the rent can be maintained until the next day.
    The plaintiff demised to the defendant, by written lease, tiie large front office in the third floor of building No. 179 Broadway, in the city of New York, for the term of one year, commencing May 1, 1884, and ending May 1, 1885, at the annual rent of $1,000, payable quarterly. About February, 1885, the plaintiff commenced alterations on the building, with the intention of connecting it with the adjoining property. The alterations continued up to May 1, 1885. The court, although requested, declined to send the case to the jury, and directed a verdict in favor of the plaintiff, a circumstance which compels us to accept as true for the purposes of this appeal, the evidence of the defendants. From this, it appears that while making the changes the plaintiff cut the pipes, so that the water closets required by the defendants and their employees could not be used, and the water could not ascend, as it had previously done, in consequence of which the defendants were obliged to send outside for water to supply the customary wants, of the establishment. The. gas pipes were cut and the hallways rendered dark, and the defendants were obliged to obtain and use candles, instead of the gas formerly furnished by the plaintiff. That the defendants suffered ether inconveniences, and were deprived of privileges appurtenant to the premises and essential to their enjoyment, in consequence of which the defendants, a few days before May 1, 1885, abandoned the premises; that they could not get another ■ place sooner. From the judgment entered upon the verdict directed by the trial judge, the defendant’s appeal.

      B. F, Emstein, for app’lt; Osborn E. Bright, for resp’t.
   McAdam, Ch. J.

The facts proved by the defendant made, out a case of eviction within the proper meaning of that term. The lease did not expire until May 1, 1885, and custom fixes the hour at 12 m. of that day. The rent being payable at the end of the quarter was not due until the last minute of the 1st day of May, 1885 (Duppa v. Mayo, 1 Saund., 287; Smith v. Shepard, 15 Pick., 147; Cutting v. Derby, 2 W. B., 1077), and it could not have been sued for until the- next day. Mack v. Burt, 5 Hun, 28. The defendants abandoned the-premises prior to May 1st, and if the abandonment was caused by the acts of the plaintiff before enumerated, depriving the defendant of the privileges appurtenant to the rooms demised, the defendants were evicted by the landlord before the rent claimed became due, and they were by operation of law relieved from its payment, as the law declines to apportion rent in favor of a wrong doer.

The circumstance that the defendants tried to negotiate a renewal of the lease, that they failed to remove until the lease had drawn nearly to a close, together with the evidence offered by the plaintiff would certainly have justified a verdict in favor of the plaintiff, if the case had been submitted to the jury and they had found the facts in favor of the plaintiff. The brief of the plaintiff presented strong reasons why the jury should give the plaintiff a verdict. They certainly give color to the claim that the defendants after enjoying the premises until almost the close of the term, moved because they could not obtain a renewal of then-tenancy on satisfactory terms, and not because forced to abandon the premises by any wrongful acts of the plaintiff. But these arguments are to be addressed to the jury. They may carry conviction and secure the plaintiff a verdict. The difficulty is, the jury may find the other way, and the evidence of the defendants if believed by the jury is sufficient to warrant such a verdict. The trial judge declined to send the case to the jury, and in effect passed upon the facts himself, by directing a verdict for the plaintiff. This was error. The case presents conflicting evidence and the facts must go to the jury under proper instructions.

A motion for a new trial on the minutes was made and denied, and while the law cited by the learned trial judge may apply to the plaintiff’s theory of the facts, it is inapplicable to the facts as disclosed by the evidence of the defendants, and the jury have by the action of the trial judge, been deprived of the constitutional right of determining which of the two conflicting theories is correct. It follows that the judgment and the order denying the motion for a new trial, must be severally" reversed, with costs to the appellants, to abide the event.

Browne and Ehrlich, JJ., concur.


text:
    Elizabeth Wendt, App’lt, v. Order Germania, Resp’t.

      (City Court of New York, General Term,

      Filed April, 1887.)

    Benevolent society—Renouncing benefits—Waiver of condition.
    A member of a benevolent society may, for a valuable consideration, ■ renounce all benefits belonging to such membership without the consent of the beneficiary. The society may waive any provision of its by-laws intended for its benefit.
    Appeal from a judgment entered by direction of the trial judge dismissing the plaintiff’s complaint.

      Lexow & Leo, for app’lt; L. Sanders, for resp’t.
   McAdam, C. J.

It is conceded that a member of a benevolent organization may, for a valuable consideration paid by it, renounce his membership and all benefits belonging to it, but it is claimed that the person for whose benefit the death penalties are payable must consent in order to make the renunciation effectual. We cannot subscribe to the accuracy of this claim, for it has neither force nor legal significance. The rights of a beneficiary in a case of this character must, in the nature of things, depend upon the continuance of the member in good standing upon the books of the society which promises the benefit and reward of good membership. If he resigns, renounces or is expelled by any act or for any misconduct of his, the foundation upon which the inchoate rights of the beneficiary rest ceases, and they cannot, without the consent of the society expressed in official form, ever ripen into anything like a valid claim against it. The interest of the beneficiary is a mere expectancy, not property. The basis for it is gone, and the expectancy fails with it. The constitutional revision of the society, which took effect May 1, 1882, declares such renunciation by the beneficiary unnecessary, and we so regard it.

William Wendt, the plaintiff’s late husband, died July 8, 1886, having at the time of his death no membership in the organization, and no claim of any kind upon it, and no outstanding contract with it for the benefit of anyone. Trué, the defendant’s constitution requires members resigning to renounce their benefits and privileges by a notarial acknowledgment of the necessary papers, and no certificate from a notary was furnished in Wendt’s case. The society had the right to insist upon the observance of this prerequisite if it had chosen to do so. The provision of the defendant’s by-law was inserted for its protection and not for the benefit of anyone else. It has waived the performance of this perfunctory duty in this instance, and the waiver is a complete answer to this formal requirement. The plaintiff had no cause of action against the defendant, and her complaint was properly dismissed.

The judgment appealed from must, therefore, be affirmed, with costs.

Hyatt and Browne, JJ., concur.


text:
    Charles L. Kessell, App’lt, v. John C. Hapen et al., Resp’ts.

      (City Court of New York, General Term,

      Filed April, 1887.

    Executors and administrators—Liability for funeral expenses— Husband and wife.
    Executors having assets in their hands are personally liable to pay the funeral expenses of the testatrix The husband is likewise liable, if credit for the funeral be given to him; but if the wife leave assets, he has a remedy over against her executors for the amount he is obliged to pay.

      On the 13th of January, 1886, the plaintiff’s wife died. Plaintiff employed an undertaker to conduct the funeral in a manner suitable to her condition in life. The bill amounted to $138. Plaintiff paid thirty on account. The undertaker sued him for the balance, $108, and recovered a judgment which he paid. Plaintiff’s wife left a will in which the defendants were named as executors. They qualified and took into their possession assets belonging to the deceased more than sufficient to pay all her debts including said funeral expenses. The present action, founded on these facts, is to recover from the defendants the amount paid by the plaintiff as before warranted. The trial judge dismissed the complaint, and from the judgment entered on this direction the plaintiff appeals.

      E. Fixman, for app’lt; Blake & Sullivan, for resp’ts.
   McAdam, Ch. J.

Executors having assets in their hands are personally liable to pay the funeral expenses of the testatrix. Rappelyea v. Russell, 1 Daly, 214; Patterson v. Patterson, 59 N. Y., 585; Williams on Ex’rs, 1621; Dayton on Surrogates, 453; Matter of Miller, 4 Redf., 303; Ferrin v. Myrick, 41 N. Y., 315. The husband is likewise liable to the undertaker, if credit for the funeral be given to him (Lucas v. Hessen, 17 Abb. N. C., 271); but if the wife leave assets sufficient to pay the expenses, the husband has a remedy over against her executors for the amount he is obliged to pay. McCue v. Garvey, 14 Hun, 562; Jackson v. Westerfield, 61 How. Pr., 399; Freeman v. Coil, 27 Hun, 450. The foundation of the remedy over, springs from the duty which the law imposes on the executors to attend to the burial of the the testatrix. If they neglect this duty, the law implies a promise to pay him, who not officiously, but in the necessity of the case directs a burial and incurs and pays such expense thereof as is reasonable. Tugwell v. Heyman, 3 Camp., 298; cited with approval in Patterson v. Patterson, 59 N. Y., 583. This being the law, the plaintiff ought to have had a judgment, and it was error to dismiss his complaint. For this error the judgment will be reversed and a new trial ordered, with costs to the appellant to abide the event.

Nehrbas, J., concurs.


author: Larremore, Ch. J. Bookstaver, J.,

text:
    The Greenwich Insurance Company, App’lt, v. The Union Dredging Company, Resp’t.

      (New York Common Pleas, General Term,

      Filed May 2, 1887.)

    1. Isstjrahce (Pibe)—Restriction ra. policy, waiver of.
    In view of the facts that the plaintiff and the brokers had other business transactions; that they gave the policy to the brokers and, without knowledge of their relations, the defendant paid the parties, who brought the policy, there was a waiver of the restriction as to the payment to any hut an authorized agent.

      2. Same—Broker—Agent op company.
    In the absence of any extrinsic proof the broker is the agent of the assured, but in view of other dealings of like character between the plaintiff and the broker a special agency to collect premiums may be inferred.
    This action was brought in the first district court to recover the premium on a policy of insurance issued on property belonging to the defendant The defendant alleged payment of the premium to Pomroy & Mackaye, insurance brokers, who had transacted business in several other matters for the plaintiff. About eleven months after such payment, the plaintiff applied to the defendant for the payment of the premium which had already been paid to the brokers. The policy in question contained among other things the following clause: “It is agreed that the person or persons, if any, other than the assured, who have procured this insurance to be taken by this company, shall be deemed the agent or' agents of the assured, and not of this company, in any transactions relating to this insurance, and if the premium on this policy shall be paid to any person or persons other than the duly appointed and authorized agent of this company, such payment shall be at the sole. risk of the assured.”, The policy was delivered by the plaintiffs to the broker, who delivered it to the- defendant, who, as already shown, paid the premium to them, and the question arises whether in face of such a provision in the policy the payment by the defendant, who is not shown to. have had any knowledge of the relations between the brokers and the plaintiff, was valid and binding.

      A. E. DeMott, for appl’t; Clarence W. Francis, for resp’t.
   Larremore, Ch. J.

Of course if there were no other circumstances in the case except the provision of the policy above referred to, the plaintiff would have been entitled to-recover. But it seems to me that in view of the facts that the plaintiff and the brokers had other business transactions, that they gave the policy to the brokers, and that without knowledge of their relations the defendant paid the parties who brought the policy, there was a waiver of the restriction as to the payment to any but an authorized agent. How was the defendant to know that they had no authority to act, or that they were not the duly authorized agents of the plaintiff? The defendant was not obliged when a policy was presented such as he had ordered, to go and inquire at the company to see whether these brokers had authority to receive the premium. The very fact that they had possession of the policy ought to be sufficient to protect the defendant and induce the belief that they were acting for the company. If any other rule were to be applied it would require every person insuring property except at the general office of the insurance company, to go to such company and make inquiry as to the authority of the party who presented the policy and received the premium. I am also inclined to believe upon the whole testimony that Pomroy & Mackaye_ were the agents for the plaintiff, at least to deliver policies, and if the plaintiff failed to receive payment, as it had in many instances through them on other transactions, it was its duty to have taken action at once.

I assent to the well established rule supported by a long line of authorities, that in the absence of any extrinsic proof the broker is held to be the agent of the assured. But this case presents some facts from which the court below, in view of other dealings of like character between the plaintiff and the brokers might infer a special agency to collect premiums. The witness Pomroy testified that the plaintiff kept an account with his firm in which these and other charges were entered; that he had seen that account; that when he paid premiums to plaintiff it generally got the book of these accounts and put that on the counter and checked them up where they had been paid. That the plaintiff gave credit to the brokers is evident from the fact that they gave policies to them for delivery. The policies might have been sent by a duly authorized agent of the company, if such credit had not been allowed. In Ewell’s Evidence on Agency (p. 6), it is said an insurance broker is agent for the assured, and also for the underwriter; he is agent for the assured first in effecting the policy, and everything that is to be done in consequence of it; then he-is agent for the underwriter as to the premium, but for nothing else, and he is supposed to receive the premium from the insured for the benefit of the underwriter; but the whole account with respect to the premium after the insurance is effected, remains a clear and distinct account between the underwriter and the broker.

Exclusive of fraud and other similar circumstances, there, is an end to everything with respect to the premium as between the insurer and insured. To the same effect is Wharton’s Commentaries on Agents and Agency, § 704. The broker in such a case is not solely agent, he is a principal to receive the money from the assured and pay it to the underwriters. In an ordinary case the assurers have no claim 'upon the assured for the premium, because by the policy they acknowledged the receipt of it. Foy v. Bell, 3 Taunt, 493; Shee v. Clarkson, 12 East, 507.

Upon the whole testimony in the case I think there was some evidence from which a special agency to receive the premiums might be inferred and to authorize the finding of the court below upon that point.

The judgment should be affirmed, with costs.

Bookstaver, J.,

I concur in the conclusion that there was sufficient evidence to warrant the justice in finding that the brokers were agents for plaintiff.