author: Earl, J.

text:
    Charles Engel, Respondent, v. J. H. Fischer, Appellant.
    Defendant, at Vienna, Austria, where he resided, accepted a bill of exchange, dated May 1, 1873, payable three months from date. Soon after he absconded, coming to New York in July of that year, where he has since resided, bearing a fictitious name, assumed for the purpose of concealing himself from his creditors. Plaintiff discovered him in April, 1882, demanded payment of the bill, and, upon his refusal, brought suit upon the acceptance. Held, that the action was barred by the statute of limitations ; that the case was not within any of the statutory exceptions. (Code of Civ. Pro., § 401.)
    The plain language of the statute may not be perverted to remedy the hardship or injustice of any particular case.

      Sleght v. Kane (1 Johns. Cas. 76), Poillon v. Lawrence (77 N. Y. 207), and the cases determining, where the debtor has been absent from tire State, as to what is a return or coming into the State, so as to set the statute running, distinguished,
    (Argued April 20, 1886 ;
    decided June 1, 1886.)
    Appeal from order of the General Term of the Superior Court of the city of New York, entered upon an order made at the November term, 1884, which reversed a judgment in favor of defendant, entered upon a decision of the court on trial without a jury. (Reported below, 19 J. & S. 71.)
    The nature of the action and the material facts are stated in the opinion.

      C. E. Rushmore for appellant.
    The defendant, having been in this State when the cause of action accrued, and having remained therein uninterruptedly until the commencement of this action, a period of ten years, the statute of limitations has run against this claim. (Code of Civ. Pro., § 382 ; Troup v. Smith, 20 Johns. 32; Allan v. Mille, 17 Wend. 202; Humbert v. The Rector, etc., Trinity Church, 24 id. 587; Foot v. Farrington, 41 N. Y. 164.) In construing statutes the natural and obvious meaning should be taken, without resorting to subtle and forced construction. Courts cannot correct supposed errors, omissions or defects. (Lieber’s Pol. & Leg. Hermeneutics, 87; Story’s Const., § 392, 7 N. Y. 97; McClosky v. Cromwell, 11 id. 593; Waller v. Harris, 20 Wend. 555, 562; Beebe v. Griffing, 14 N. Y. 234.)

      Benno Lewinson for respondent.
    In the construction of statutes the judge is vested with authority to disregard the letter, in order, in a given case, to attain the ends of justice. (Lieber’s Hermeneutics, note, p. 285 ; Sedgwick on Constr. of Stat. Law [2d ed.], 262; Holmes v. barley, 31 N. Y. 290; Gay v. Siebold, 97 id. 472; Jackson v. Collins, 3 Cow. 96; Green v. Kemp, 13 Mass. 518 ; Edwards v. Dick, 4 Barn. & Ald. 212.) The word “return,” as applicable to a debtor, applies as well to persons coming from abroad as to citizens of the country going abroad for a temporary purpose and then returning. (Angell on Lim. § 206; 3 Pars, on Cont. [6t.h ed.] 105; Ruggles v. Keeler, 3 Johns. 261; Carpenter v. Wells, 21 Barb. 594; Bulger v. Roche, 11 Pick. 36; Cole v. Jessup, 2 Barb. 313; Dwight v. Clark, 7 Mass. 515; Ford v. Babcock, 2 Sandf. 520.) Such an efEect should be given, if possible, to the provisions of the statute of limitations as will not impute to the legislature an intention to do an injustice, especially as to clauses in the statute which purport to save demands, where there has been no opportunity of suing the defendant, by reason of his non-residence, absence or otherwise. (Crosier v. Tomlinson, 2 Mod. 71-73 ; Forbes v. Smith, 30 Eng. Law & Eq. 602; Chandler v. Villett, 2 Saund. 120, 121; Sage v. Hawley, 16 Conn. 114, 115 ; Swayn v. Stephens, Cro. Car. 245 ; Lafonde v. Ruddock, 24 Eng. L. & Eq. 239; William v. Jones, 13 East, 440; Gilman v. Cutts, 3 Fos. [N. H.] 384, 385; Smith v. Bond, 8 Ala. 386; Broom’s Legal Maxims, 727.) The intent plainly expressed is, that every creditor shall have six full years to sue in the courts of this State, and that he shall not lose his- demand except by such an omission to sue as ¡the law deems voluntary and negligent. (2 R. S. 295-299, §§ 18, 24, 26, 27, 32-37; Code, §§ 380-412; Ford v. Babcock, 2 Sandf. 519, 528, 529; Cole v. Jessup, 10 How. Pr. 515; Gilman v. Cutis, supra; Smith v.
      Bond, 8 Ala. 386; Vanlandingham v. Huston, 9 Ill. 125; Hardens. Palmer, 2 E. D. Smith, 172; Richards v. Md. Ins. Co., 8 Cranch, 92, 93 ; Olcott v. Tioga R. R. Co., 20 N. Y. 223; Anon., 1 Shower, 91; Ruckmaboye v. Mettichund, 32 Eng. Law & Eq. 85 ; Lane v. Bennett, 1 Mees. & Welsb. 70; Murray v. Baker, 3 Wheat. 341; Bk. of Alexandria v. Dyer, 14 Peters, 141; Pancoast v. Addison, 1 Harr. & Johns. 350; Ruggles v. Keeler, 3 Johns. 267; Dwight v. Clark, 7 Mass. 515; Bulger v. Roche, 11 Pick. 39, 40 ; Van Hemert V. Porter, 11 Metc. 210; Graves v. Week, 19 Vt. 179; Forbes v. Smith, 30 Eng. L. & Eq. 602; Sleight v. Kane, 1 Johns. Cas. 76; Smith v. Bond, supra ; Davis v. Garr, 2 Seld. 124; Douglass v. Forrest, 4 Bing. 686; Benjamin v. Degroot, 1 Denio, 151; Lafonde v. Ruddock, 24 Eng. Law & Eq. 239; Townsend v. Deacon, 3 Exch. 706 ; Strithorst v. Graeme, 2 Wm. Bla. 723 ; Williams v. Jones, 13 East, 439 ; Louisville v. Letson, 2 How. [U. S.] 497.) In order to set the statute in operation and to take a case out of the exceptions created by section 401, the debtor’s return to (¿. 6. “coming into ”) the State must be public and notorious. (Smith v. Bond, 8 Ala. 386; 3 Pars, on Oont. 96; Angelí on Lim., § 206; Ford v. Babcock, 2 Sandf. 518; Cole v. Jessup, 10 N. Y. 96, 102; 3 Barb. 309 ; Fowler v. Bailey, 3 Mass. 201; Little v. Blunt, 33 id. 359; Randall v. Wilkins, 4 Denio, 577 ; Fowler v. Hunt, 10 Johns. 464.) Where a party knowing his rights, and diligently seeking to enforce them, is prevented by the effectual hiding of the debtor from bringing suit, he cannot lose his remedy. ( Upton v. McLaughlin, 105 U. S. 640 ; Rosenthal v. Walker, 111 id. 191; Bailey v. Glover, 21 Wall. 349 ; Poillon v. Lawrence, 77 N. Y. 211.)
   Earl, J.

This action was commenced against the defendant as acceptor of a bill of exchange payable three months after date, drawn on the 1st day of May, 1873, at Vienna, Austria, for three thousand six hundred gulden, equivalent in our money to $1,512. The defense interposed is that the cause of action was barred by the statute of limitations.

The facts are these: The defendant resided in Austria, where . he accepted the bill, and soon thereafter he absconded, and in July, came to the city of New York, and there he has ever since resided. On reaching New York, for the purpose of concealing himself from his creditors, he assumed the name of Marcus L. Fischer, and thereafter bore that name and hid him- self thereunder. The plaintiff discovered him in the city of New York in April, 1882, and there, at his store, demanded of him the payment of the draft, which was refused, and then, in the same month, this action was commenced.

While the plaintiff concedes that more than six years had elapsed from the time the cause of action accrued against the defendant, he claims the benefit of the exception contained in section 401 of the Code, which is as follows: “ If, when the cause of action accrues against a person, he is without the State, the action may be commenced within the time limited therefor after his return into the State. If, after a cause of action has accrued against a person, he departs from and resides without the State, or remains continuously absent therefrom for the space of one year or more, the time of his absence is not a part of the time limited for the commencement of the action."

. This section does not aid the plaintiff, because the defendant was not without the State when the cause of action accrued, and he never thereafter departed from the State.

While the defendant bore an assumed name, he was, physically, at all times, within this State, and there was no hiding or concealment of his person except as he assumed and bore the fictitious name. It passes my comprehension how, by any process of reasoning or metaphysics, such a person continually present in the State for nearly ten years can be said never to have come here and to have been continually absent from the State.

It is quite probable that the defendant perpetrated a fraud upon the plaintiff by concealing his residence from him, and that the statute is resorted to by him to defeat a just claim. Yet the statute must have its operation. Its plain language cannot be perverted to remedy the hardship of any particular case: It is a benign statute, and the legislature has written in it all the exceptions which sound policy dictated to it. It may frequently operate to defeat just claims and be used by dishonest debtors to escape the payment of honest debts. A cause of action may be barred before it is known to the claimant. The debtor may purposely conceal it, and yet the bar of the statute must inexorably be applied. A debtor who has always resided within the State may abscond from his home and conceal himself within the State from his creditors, and yet no one will claim that such a debtor is to be regarded as without the State, or that such concealment will defeat the running of the statute. The law gives a creditor six years continued presence of his debtor within the State after the cause of action has accrued, and that period has been deemed ample to enable the creditor to find his debtor and to put the machinery of the law in force against him. It would lead to great inconvenience and leave the bench and bar without any certain rule, if, in every case where a debtor has resided and continuously been within this State for six years after a cause of action against him accrued, and the statute of limitations is interposed as a bar to an action to enforce the same, it could be a matter of inquiry and litigation, upon disputed evidence, whether the debtor, during any portion of the time, concealed himself, fraudulently or otherwise, and whether the creditor used due diligence to find Mm.

There are some cases in wMch what is now the first clause of the section above quoted was under consideration, and it became necessary for the courts to determine what was a return or coming into the State so as to set the statute running, wherein it was decided that the return must be open and notorious and under such circumstances that the creditor could, with reasonable diligence, find Ms debtor and serve him with process. (Little v. Blunt, 16 Pick. 359; Hill v. Bellows, 15 Vt. 727; Hysinger v. Bullzell, 3 Gill & J. 158; Didier v. Davison, 2 Barb. Ch. 477; Ford v. Babcock, 2 Sandf. 518; Cole v. Jessup, 10 N. Y. 96; Dorr v. Swartwout, 1 Blatchf. C. C. 179 ; 3 Pars. on Cont. [6th ed.] 96; Angell on Lim. [2d ed.] 216.) A debtor might return to the State clandestinely, for a few hours, in the night-time, or on Sunday, or he might be in the State on his progress through it; and a return of such a character, which might be concealed from and unknown to the creditor and which would afford him no opportunity, by the use of reasonable diligence, to serve his debtor with process, is held not to be a return to the State within the meaning of the statute. But it has never before this case, so far as I can discover, been decided that where the debtor was continually in the State for more than six years after the cause of action accrued, he was deemed to have been without the State, and thus the running of the statute defeated because he concealed his abode and thus the creditor was unable to discover him and serve him with process.

The case of Sleght v. Kane (1 Johns. Cas. 76), is not an authority for the plaintiff. There the defendant was held to be without the State while he was in a place which had been conquered and was held by the British troops, and which was neither defacto, nor, I am inclined to believe, dejure a part of the State, nor subject to the jurisdiction of the State courts.

In Poillon v. Lawrence (77 N. Y. 207), it was held that a discharge in bankruptcy was void as to a creditor from whom notice of the bankruptcy proceedings was purposely and fraudulently withheld by conducting the same in a name assumed by the debtor which was entirely different from that under which the debt was contracted; and that case has no bearing upon this.

We are, therefore, constrained to hold that the order of the General Term should be reversed and the judgment of the Trial Term affirmed, with costs.

All eonóur.

Order reversed, and judgment affirmed.


source: Caselaw Access Project

author: Bapallo, J.

license: Public Domain

text:
    Dennis G. Barber, Respondent, v. Abendroth Brothers, Appellants.
    The owners of a dock upon a river are responsible for damages suffered by a vessel lawfully using it, caused by a defect in the river bottom adjoining the dock, known to them, but not to the master of the vessel.
    Plaintiff contracted for a load of sand to be delivered at its dock, which could only be reached by boats at high tide, the bottom of the river being bare at low tide. The sand was shipped on plaintiff’s boat. The first high tide after its arrival in the river was at midnight. There was a watchman on the dock, of whom plaintiff inquired when the boat approached the dock, where he should moor it. The watchman answered that he did not know. Plaintiff then asked where the last load of sand was landed. The'place was pointed out and plaintiff moored his boat there. When the tide fell, the boat rested on the bottom, a depression in which caused the center of the boat to settle and inj ured her. Defendant knew of the unsafe condition of the bottom of the river at the point in question. In an action to recover damages, held, that defendant was properly found guilty of negligence in not making provisions for warning a vessel coming in by the night-tide of the danger; that while the directions given by the watchman did not impose any liability upon his employer, as it was no part of his duty, the conversation with him showed that plaintiff took proper precautions, and the evidence was sufficient to absolve him from the charge of contributory negligence, .although it appeared that the place so selected by him was not the proper one for unloading.
    (Argued April 30, 1886;
    decided June 1, 1886.)
    Appeal from judgment of the General Term of the Supreme Court in the first judicial department, entered upon an order made the first Monday of November, 1884, which affirmed a judgment in favor of plaintiff entered upon a verdict, and affirmed an order denying a motion for a new trial.
    "This action was brought to recover damages for injuries to plaintiff’s canal boat, alleged to have been caused by defendant’s negligence.
    The material facts appear in the opinion.

      D. B. Ogden for appellants.
    In order to charge a defendant with negligence in such a case it is necessary that the defect should be such that its existence would be discovered by a reasonable examination Commensurate with the use of the premises. (Leary v. Woodruff, 4 Hun, 99; Shearm. & Redf. on Neg. 658.) A mere passive acquiescence by an owner or occupier, in a certain use of his land by others, involves no liability, but if he, directly or by implication, induces persons to enter on and pass over his premises, he thereby assumes an obligation that they are in a safe condition, suitable for such use. (Sweeney v. Old Colony R. R. Co., 10 Allen, 368 ; Leary v. Woodruff, 4 Hun, 99; Smith v. Standard Oil Co., 13 Week. Dig. 377; Shearm. & Redf. on Neg. 498.)

      J. A. Hyland for respondent.
    The owner of a wharf making use of it for gain, in the course of his business, is liable for the damages caused by the inequalities in the bottom alongside of the wharf to a vessel lawfully using the berth in course of business and exercising due care. (Lawyer v. Oakman, 7 Blatchf. 290 ; 3 Wall. Jr. 375 ; 7 Ben. 39 ; 13 Week. Dig. 377; 15 Wall. 649; 1 Thomp. on Neg. 316, 581, 582; 1 Brown’s Adm. 360 ; 59 N. Y. 28 ; 23 How. [U. S.] 209 ; 99 Mass. 116; 1 Low. 134.) This liability attaches even if the defendant had no title to the dock, if it occupied it and the adjoining wharf. (Leary v. Woodruff, 4 Hun, 99; affirmed, 76 N. Y, 617; Canavan v. Conklin, 1 Daly, 509.) When a danger can be seen and is not discovered it is negligence not to know of its, existence. (97 N. Y. 494, 501.) The appellant was bound by law to have its dock in a fit condition to receive respondent’s vessel without damaging her. (Shearm. & Redf. on Neg., § 498; Thomp. on Neg., §10, p. 316; Sawyer v. Oakman, 1 Low. 136.)
   Bapallo, J.

The plaintiff was lawfully using the defendant’s dock at the time of the injury complained of. The defendant is a corporation and owned the dock, which was opposite its foundry and was about three hundred feet long. It had contracted for a cargo of sand to be shipped to it, and to be delivered at the dock in question. The sand was shipped on the canal boat “ George A. Bennett,” owned by the plaintiff and consigned to the defendant, deliverable along side of its dock at Port Chester, 1ST. T. The boat with its cargo arrived at the mouth of the Byram river on the 25th of August, 1881, at between eight and nine o’clock, p. m., and was then attached to a tug. The tide being then low, the tug anchored and waited till the tide rose enough to take the boat to Port Chester. She arrived there at about twelve o’clock that night. There was a watchman on the dock, and the plaintiff asked him where he should moor his boat, and he said he did not know. The plaintiff then asked him where the last load had been landed, and he pointed out a place, and the plaintiff then moored at the place designated, throwing his lines to the watchman, who took them and made them fast. When the tide fell the boat rested on the bottom which was bare at both ends of the boat, but there was a depression in the center which caused the boat to settle about a foot in the center and thus injured her. The bottom was hard sand.

At the close of the testimony the judge, at the request of the defendant, charged the jury that the plaintiff could not recover unless the jury believed that the defendant had notice that the bottom of the river at the point in question was unsafe, and was guilty of negligence in not warning the plaintiff, and the plaintiff was not guilty on his part of any negligence which contributed to the accident.

This charge was in accordance with adjudged cases, and the converse of the rule laid down is sustained in the same manner. The jury having found for the plaintiff, the verdict must be assumed to have been based upon the facts supposed in the charge.

In Sawyer v. Oakman (1 Low. 134), the rule was laid down by the District Court of the United States that the owners of a dock are responsible for damages suffered by a vessel lawfully using the dock, caused by a defect in the bottom, known to the owners of the dock and not known to the master of the vessel. This decision was affirmed in the Circuit Court of the United States by Woodruff, J., in 7 Blatchf. 290.

The same rule was applied in Carlton v. Franconia Iron and Steel Co. (99 Mass. 216), where the owner of a private wharf procured a vessel to bring a cargo to it, to be there discharged, and suffered her to be placed, at high water, at a place apparently safe but in fact unsafe, there being a sunken rock at the adjoining wharf, of which the defendant had knowledge. The plaintiff might have moored safely at the defendant’s wharf, but did not know of the rock. As an illustration, the court, in the case cited, instanced an unsafe entrance to a man’s house whereby a carrier coming there at night should sustain damage. (See, also, Leary v. Woodruff, 4 Hun, 99 ; affirmed, 76 N. Y. 617.)

In the present case the defendant had authorized the cargo of sand to be sent to it, to be delivered at the wharf in question, and knew that it was coming, although it did not know at what precise time. It was bound to know, however, that it could only be delivered at high tide, which would, on the day in question, be either about noon or about midnight, the bottom being bare at low tide. The jury must be deemed to have found that the defendant knew the dangerous condition of the bottom, and was negligent in not making provision to warn a vessel coming in by the night tide, especially as it had a watchman ■ there who might easily have been instructed. Both of these questions were submitted to the jury at the defendant’s request, and found adversely to them. We do not think that the directions given by the watchman made the defendant liable, first, because it was no part of his duty to give them, he being there only to watch the buildings and guard against fire, and secondly, because he did not assume to - have authority to give directions, as he said he did not know where the plaintiff should moor. But the inquiry made by the plaintiff showed that he took such precautions as the circumstances afforded, and that in making fast at the place where he was told the last cargo had been landed, he exercised prudence which tended to absolve him from the charge of negligence. There was evidence tending to show that the place selected by the plaintiff was not the proper place, but we think that, taking the whole evidence together, it was sufficient to sustain the verdict.

The judgment should be affirmed.

All concur.

Judgment affirmed.


author: Finch, J.

text:
    Howard Payson Wilds, Appellant, v. The St. Louis, Alton and Terre Haute Railroad Company et al., Respondents.
    A first mortgage upon the property of defendant, The St. L., A. & T. H. R. R. Co., contained provisions to the effect that twice a year, out of any surplus of net earnings, the company should pay to the trustees $12,500 as a sinking fund for the redemption of the bonds secured, with which and the accumulation of interest thereon the trustees were required to purchase outstanding bonds so long as they could be purchased at not more than ten per cent above par ; the bonds so purchased were directed to be deposited, but it was provided that they should remain in force and interest be paid thereon by the company, the amount thereof to be added to the capital of the sinking fund and invested in the purchase of other bonds. In case of inability to purchase said bonds at the prescribed rate it was provided that the sinking fund on hand should remain at interest until the authorized purchases could be made, and that “ no further payments shall be payable to the said sinking fund till the money so remaining in the said fund can be used in purchasing said bonds * * * when such payments of $12,500, semi-annually, shall be resumed.’’ The price of said bonds having gone above the permitted purchase-price, the semi-annual payments were discontinued, but the company proposed to continue the payment to the trustees of interest on the bonds then held by the sinking fund. In an action to restrain such payment, held, that conceding the bonds so held ceased upon their purchase to constitute any part of the corporate debt, the duty of continued payments of interest as contributions to the sinking fund was continued, and was not affected by the provision quoted, which applied simply to the regular semi-annual payments : and that, therefore, the action was not maintainable.
    (Argued April 21, 1883 ;
    decided June 1, 1886.)
    Appeal from judgment of the General Term of the Supreme Court, in the first judicial department, entered upon an order made October 15, 1884, which affirmed a judgment in favor of defendants, entered upon a decision of the court on trial at Special Term.
    This action was brought by plaintiff, as a preferred stockholder of defendant, the railroad corporation, to restrain the company from making certain payments to the sinking fund created by a first mortgage upon its property.
    The material facts are stated in the opinion.

      Thomas Thacker for appellant.

      Adrian Yan Sinderen for respondents.
    There is nothing in the sinking fund provision, nor in any other provision of the instrument of which it forms a part, to give color to the idea that any suspension or interruption of the regular payments of interest on the bonds of the company was for a moment contemplated. (Potter’s Dwarris on Stat. [ed. 1813] 194, 218.) The mortgage, with the issue and. distribution of bonds under it, creatés a trust, of which the selected mortgagee, or his duly constituted successor, is the trustee and the bondholders primarily, and the stockholders ultimately, the beneficiaries. ( Gilfillian v. Un. Can. Co., 109 U. S. 403.) The contemporaneous practical construction of a statute by those who are called upon to carry it into effect will be upheld by the courts. ( U. S. v. Pugh, 99 U. S. 265; Edward’s Lessee v. Darby, 12 Wheat. 210; U. S. v. Alexander, 12 Wall. 177; Peabody v. Stark, 16 id. 240; Smythe v. Fisk, 25 id. 382; U. S. v. Moore, 95 U. S. 168 ; Hahn v. U. S., 107 id. 402; U. S. v. Graham, 110 id. 219; In re Iowa & Ill., id. 485.) The contract rights of the bondholders are entitled to consideration'. (Canada So. R. Co. v. Gebhard, 109 U. S. 527, 534-5.) This court has no power to enlarge the terms of the deed or the powers of the trustees. The terms of the deed are clear and explicit. The duties imposed upon the trustees are imperative. The securities in which the funds are to be invested are plainly stated. The deed, when made, was such as was intended by the parties and holders of the first mortgage bonds. (Clark v. St. Louis, etc., R. R. Co., N. Y. Daily Reg., Nov. 3, 1819.)
   Finch, J.

The construction of a sinking fund contract, accompanying the execution of a first mortgage, and intended to provide for its ultimate payment and discharge, is the question of law presented by this appeal. The St. Louis, Alton and Terre Haute Railroad Company bought its property subject to certain incumbrances which it assumed and agreed to pay, and which thus became legally, as they were' in fact, the debts and obligations of the corporate purchaser. These consisted of bonds to the amount of $2,200,000, drawing seven per cent interest, and secured by a first mortgage upon the railroad purchased ; of a second mortgage upon the same property, under which bonds to the amount of $2,800,000 have been issued and are outstanding, also drawing seven per cent interest; and which second mortgage further secured, in a specified order of priority, income bonds payable out of surplus earnings to the amount of $1,700,000, drawing interest at seven per cent, and a preferred stock of the same amount entitled to a seven per cent dividend out of net earnings, the larger part of which stock has been issued, and is now outstanding. This second mortgage and its group of protected obligations were more or less depressed in value by the shadow and threat of the large prior incumbrance, and likely to be floated upon the market at some serious sacrifice for that reason. Whatever could be done to provide for the payment and discharge of the first mortgage and the ultimate removal of its lien would tend to strengthen the subsequent securities, and permit their negotiation at prices so much higher as to compensate for such loss of interest as might accrue from the plan adopted. These considerations, and a desire to increase and strengthen the value of the common stock in the hands of its holders, led to the provisions in the first mortgage which organize and constitute a sinking fund. These are in substance that twice a year out of any surplus of net earnings over and above expenses and fixed charges, the company should pay to the trustees of the first mortgage the sum of $12,500 as a sinking fund for the redemption of the bonds it secured; that the trustees should at once deposit such sums in the United States Trust Company of the city of blew York, or in some other safe depository in that city; that with such money and all accumulations of interest thereon the trustees should buy the outstanding first mortgage bonds so long as they could be purchased at a rate not exceeding ten per cent above par with the accrued interest, the disposition of which was thus described: The bonds- so purchased shall be deposited with said trust company, and be immediately stamped or indorsed as belonging to said sinking fund, but shall remain in force and the interest thereon shall continue to be paid by the said St. Louis, Alton and Terre Haute Railroad Company, and the amount of such interest shall be added to and applied as a part of the capital of the sinking fund hereby established, and be invested in the purchase of other bonds in the same manner as. the semi-annual payments of $12,500 herein provided for.” To meet the emergency of an inability to buy the bonds at or below the prescribed rate the mortgage stipulated that, in such event, the said money shall remain at interest until bonds can be purchased at public or private sale, at such rate; and no further payments shall be payable to the said sinking fund till the money so remaining in the said fund can be used in purchasing said bonds at such rate or under, when such payments of $12,500 semi-annually shall be resumed.”

The emergency thus contemplated actually arose. The price of the bonds went above the permitted purchase rate after $636,000 of them had been bought and placed in the sinking fund. The semi-annual payments of $12,500 were thereupon discontinued, but the company intending to continue the payment' of interest to the trustees upon the bonds held by the sinking fund, a preferred stockholder objected and brought this action to prevent such payment.

Two clauses of the sinking fund article, if literally read, clash and need to be reconciled. The purpose to keep the bonds purchased valid and living obligations against the company, so far as the payment of interest is concerned, until their maturity, is clearly and strongly expressed. Conceding even that the bonds themselves, immediately upon their purchase, ceased to constitute any part of the corporate debt, and were practically extinguished, and that the provision for interest payments was only a mode of measuring and determining the amount of prescribed contributions to the sinking fund, those contributions, at least, are directed to be made so long as interest accrues upon the bonds treated as valid obligations. They are to “ remain in force ” for the purpose of interest payments, and those, whether deemed payable as interest strictly, or as contributions to the sinking fund, are payable until the bonds mature, and a default in the bonds outstanding as obligations, or in the payments due to the sinking fund, by the terms of the mortgage, may be followed by proceedings in foreclosure under the provisions applicable in case of such default. The duty of continued payment of interest is thus entirely plain, until confronted with the later clause which directs, in case the bonds appreciate beyond one hundred and ten and purchases cease, that no further payments shall be payable to the said sinking fund,” until the permitted purchases can be resumed. The payment of interest upon the purchased bonds is a payment in to the sinking fund, and so comes a collision between a command to pay interest until the bonds mature, and one to cease payments before that if the bonds rise above the prescribed value. The natural and obvious solution of the difficulty is suggested by the instrument itself, and is that the payments referred to in the later clause are the semi-annual payments of $12,500. The payments to be stopped are identical with those to be resumed as indicated by the words “ such payments,” and since those to be resumed were expressly declared to be the $12,500, it follows that those and those only were the payments to be discontinued. This construction is fortified by another circumstance. While the bonds were below the maximum of purchase both the interest payment and the gross payment were to be made. If, when the bonds reached one hundred and ten, both payments-were to cease, then, upon the appellant’s construction, when they dropped below that value only one is to be resumed, and the interest payments once stopped are ended forever, and cease to be due when the precise circumstances again exist which made them at first payable.

The principal argument against this construction is, that it involves waste, because while bonds cannot be purchased and are drawing seven per cent, the money on deposit in the trust company will draw but two per cent. There are two sufficient answers to this contention. When the plan was adopted nobody foresaw or sought to provide against so great a reduction, in the rates of interest as has since occurred, and when the contract was made, the possible loss from, difference of interest was not deemed important. But a further answer is found in the suggestion of the learned judge at Special Term, and cannot be better stated than in his own words; that the safety of the money paid into a sinking fund is of more importance than the amount of interest it might earn.” It would seem as if that lesson might have been readily learned from the financial history of the past, and have exerted a predominant influence upon the sinking fund devised. Railroad mortgages are seldom made to be paid. If the company is successful they are often renewed, and the money which might have been used for their discharge is largely spent in heavy salaries, increasing • expenses, and questionable extensions of the line. If the company is unsuccessful the end is foreclosure and wreck. But where a mortgage is made to be paid, and the credit and market value of subsequent securities depend upon it, a plan like that devised in the present case is wise and prudent even if it involve some loss of interest. The normal operation of this sinking fund, if the bonds had kept below one hundred and ten, would have redeemed them all at maturity. If it fails of complete success it is due to a partial suspension of its operation, but that should extend no further than the fair construction of the mortgage requires. We think the courts below decided correctly that the interest payments to the sinking fund must continue until the maturity of the mortgage.

The judgment should be affirmed, with costs.

All concur, except Rapallo. J., dissenting, and Miller, J., not voting.

Judgment affirmed.


author: Andrews, J.

text:
    William H. Burr, Respondent, v. John C. De La Vergne, Appellant.

      It seams that one partner acquires no right or interest, legal or equitable, by reason merely of the copartnership relation, in an invention made by a copartner during the existence of the partnership, although the invention relates to an improvement in machinery to facilitate the business of the firm, and although the inventor uses copartnership means in his experiments and is bound by the copartnership articles to devote his’ whole time and attention to the firm business.
    Where, however, by an agreement between the copartners the firm is to acquire a joint right in any inventions, the partner to whom a patent for such an invention is issued may not claim the exclusive benefits thereof.
    The parties hereto were formerly copartners. During the existence of the partnership, one M. entered into a contract with defendant by which the latter agreed to pay the expenses of making experiments and of constructing a machine to test the value of an invention by the former; in consideration thereof M. agreed to give defendant a one-half interest t in the invention. Defendant" entered into a contract with plaintiff, by which it was agreed that the firm should pay the expenses of the test and that plaintiff should have one-half of defendant’s interest. A large expenditure was thereupon incurred by the firm in the' experiments, all the expenses of which were borne by it; these resulted successfully, and several patents for the inventions were applied for and issued to defendant and M. jointly, and one was issued to defendant alone. In an action brought to compel defendant to assign to plaintiff one-half of his interest in the patents, it was claimed by the former that they were not within the agreement, as the inventions covered by the patents were not the inventions of M. alone, but of M. and defendant jointly. Held untenable; that while it was to be assumed that the patentees were joint inventors, the patents embraced the original idea of M., and although in the course of the experiments defendant contributed original suggestions which entitled him to claim as joint inventor, as between him and plaintiff they were for the purposes of the action to be considered as the inventions of M. alone, and the contributions of the defendant as having been made in aid of M., while proceeding under the original agreement; and that plaintiff was entitled to an interest in all the patents, including the one issued to defendant alone.

      Also held,that plaintiff was entitled to an accounting of and to share in the profits received by defendant from licenses or sales of the right to use the invention.
    It was claimed that the agreement between the parties being by paroi, it was void under the provision of the U. S. Statutes (U. S. B. S., § 4898), declaring that “ every patent or interest therein shall be assignable in law by an instrument in writing.” Held, that the provision does not apply to a paroi executory contract to convey an interest in an invention contemplated, but not perfected and not cognizable under the patent laws.

      It seems the statute does not prevent the obtaining by paroi of an equitable title to or interest in a perfected invention.

      It seems when an interlocutory judgment provides for a reference and final judgment is rendered, without a reference by the judge before whom the case was tried, the defect at most is an irregularity to be reached by motion, and is not brought up for review by appeal from the judgment simply. ¡
    (Argued April 21, 1886 ;
    decided June 1, 1886.)
    Appeal from judgment of the General Term of the Supreme Court, in the first judicial department, entered upon an order made October 6, 1884, which affirmed a judgment in favor of plaintiff, entered upon a decision of the court on trial at Special Term.
    This action was brought to compel defendant to transfer and assign to plaintiff one-half the interests held by the former in certain letters-patent and for an accounting, etc.
    The complaint alleged and the court found in substance that in February, 1876, the parties were copartners, engaged in the business of brewing lager beer; that at that time one Mixer was engaged in perfecting an invention connected with that business, and proposed to defendant that if he would furnish the money to make the requisite experiments and to construct an experimental machine to test the value of the invention, he would give him “ one-half interest therein.” That defendant notified plaintiff of the proposition, and it was agreed between them that the proposition of Mixer should be accepted, the firm paying the expenses of the experiments and using their brewery for the purpose, and that each should have an equal interest in the Mixer contracts; that thereupon defendant entered into a contract with Mixer as proposed and the experiments were conducted and carried on at the firm’s expense; that as results of the said experiments various inventions were made and patents therefor obtained, which were issued to defendant and Mixer jointly, and one was issued to defendant alone. The court found as conclusions of law that the interests so acquired by defendant were the joint property of him and plaintiff, and directed an assignment by defendant of one-half his interest to plaintiff and directed a reference to a referee: named to ascertain and settle the rights of the parties.
    Further facts are stated in the opinion.

      Sidney S. Harris and Samuel Hand for appellant.
    Where there is an express contract none can be implied; a contract which the parties intended to make, but did not make, cannot be set up in the place of one which they did make. (2 Pars, on Cont. 497.) If the inventions patented in the joint names of defendant and Mixer were the sole inventions of Mixer, the patents would be void. (Walker on Patents, § 51.) The final judgment is erroneous. It could not regularly be entered until after the reference provided for by the interlocutory judgment was had. (Code, §§ 1230-1231; Clark v. Hall, 7 Paige, 383 ; 1 Barb. Ch. Pr. 357.) After the judgment the court has no power to modify or add to it or make another judgment bn motion. (Prentice v. Machado, 2 Rob. 660 ; 1 Barb. Ch. Pr. 349.) The final judgment is erroneous as it decrees that the defendant holds the “ said interests, properties, profits and advantages ” for the joint benefit of himself and the plaintiff. ( Whiting v. Graves, 3 B. & R. 222 ; Vose v. Singer, 4 Allen, 232 ; Walker on Patents, § 294; De Witt v. Elmira Nobles Co., 5 Hun, 301; affirmed, 66 N. Y. 459.) The judgment is also erroneous as it also requires defendant to execute an assignment of half his interest in the letters-patent to plaintiff. (Walker on Patents, § 295.) Hpon the evidence the decree is erroneous, because in effect it declares the defendant’s interest in the letters-patent was partnership property. (Baird v. Baird, 1 Dev. & B. 241; McKae v. McKinzie, 2 id. 232.) The contribution by the plaintiff toward the expenses of making the experiments would not give him any claim upon the inventions. (Belcher v. Whitemore, 134 Mass. 330.) The court did not have jurisdiction to render a judgment declaring plaintiff entitled to any profits or advantages derived by defendant from the patents. (De Witt v. Elmira Nobles Co., 66 N. Y. 459 ; Vose v. Singer, 4 Allen [Mass.], 235.) An action for specific performance will not lie upon the undisputed facts of this case. (Griffin v. Goleman, 28 L. T. [N. S.] 493.) A paroi agreement like the one relied upon by the plaintiff is not a compliance with the statute, that an assignment of a patent must be in writing. (Davy v. Morgan, 56 Barb. 226; U. S. E. S., § 4898 ; Gayler v. Wilder, 10 How. [U. S.] 487; Walker on Patents, § 274 ; Whitney v. Graves, 3 B. & A. 225.)

      Oscar Frisbie and E. N. Dickerson for respondent.
    Plaintiff was entitled under the contract to share in the patents issued on defendant’s invention. (Gillett v. Bate, 86 N. Y. 87.) This action can be maintained. (Coles v. Coles, 15 Johns. 159 ; Musier v. Trumpbour, 5 Wend. 274; Howard v. France, 43 N. Y. 593 ; Carter v. Bininger, 45 id. 545 ; American Bank Note Co. v. Edson, 1 Lans. 388 ; S. C., 56 Barb. 84; Cheesemam v. Sturgis, 9 Bosw. 246; 6 id. 520.) The plaintiff is entitled to recover what his contract with the defendant called for, together with the increase flowing from it. (Johnson v. Brooks, 93 N. Y. 344.)
   Andrews, J.

The proposition asserted in behalf of the defendant, that one partner acquires no right or interest, legal or equitable, in an invention made by his copartner during the existence of the partnership by reason merely of the copartnership relation, although the invention relates to an improvement in machinery to facilitate the business carried on by the firm, and although the partner making the invention, uses copartnership means in his experiments, and is also bound by the copartnership articles to devote his whole time and attention to the firm business, is a doctrine supported by authority and consonant with reason. (Slemmer's Appeal, 58 Penn. St. 155, 164; Belcher v. Whittemore, 134 Mass. 330.) The proposition assumes, however, that there was no agreement pursuant to which a joint right was to be acquired in inventions made by either partner, and that the making or perfecting of inventions was not within the scope of the partnership business. The defendant relies upon this principle as decisive against the claim of the plaintiff to demand any share in the joint inventions of Mixer and the defendant, for which patents were issued to them jointly. This contention is put upon the ground that the agreement between the plaintiff and the defendant, upon which the plaintiff bases his action, as proved and found, related to an interest in inventions which should he made by Mixer under the arrangement between Mixer and the defendant. It is therefore claimed that the agreement is confined to an interest in inventions made by Mixer exclusively, and does not extend to joint inventions made by Mixer and the defendant. But this construction of the contract, if allowed to prevail in this ease, would operate as a fraud upon the plaintiff. When the agreement was made, Mixer had in mind an undeveloped idea which he desired to embody in an experimental machine, to test its practicability and usefulness, and he therefore proposed to the defendant that experiments should be carried on in the brewery of De La Yergne and Burr, and that he would give the defendant one-half interest in the invention, provided the'latter would pay the expenses of making the experiments and of constructing an experimental machine to test the value of the invention. The defendant, as the evidence on the part of the plaintiff tends to show, then presented the proposition to the plaintiff and offered to give him one-half of his proposed interest under the proposition of Mixer, provided the plaintiff would agree that the expenses of the experiments and of constructing the experimental machine should be paid by the firm. The plaintiff consented, and an expenditure of $40,000 was incurred and paid by the firm in prosecuting the enterprise, which finally resulted in the perfecting of the invention and the construction of a machine apparently of great value. Three several patents were applied for and issued to the defendant and Mixer jointly. This fact furnishes the foundation for the claim made, that these patents were not within the agreement between the parties. It must be assumed that the inventions covered by these patents were the joint inventions of the joint patentees. This is the inference from the patents themselves, and it is claimed that the inference is conclusive and incontestable upon a collateral inquiry. Assuming this to be true, nevertheless it does not we think furnish an answer to the claim of the plaintiff to an interest in these patents, under his arrangement with defendant. The referee finds, and the evidence justifies the finding, that the most material parts of the invention were Mixer’s. Nor can there be any reasonable donbt that the patents "embraced the original idea of Mixer, existing when the original negotiation commenced between him and the defendant, but adapted and perfected by experiment until the invention took its final form. Assuming, as perhaps must be • assumed, that in the course of these experiments the defendant contributed original suggestions, which were adopted and entitled him to claim the inventions as the joint inventions of himself and Mixer, nevertheless we are of opinion that as between himself and the plaintiff, they must be regarded for the purposes of this action as the inventions of Mixer alone, and that any contribution on the part of the defendant thereto, must be considered as having been made in aid of Mixer while proceeding under the original agreement. Any other conclusion would, as we have said, work a fraud upon the plaintiff. It is significant as bearing upon this view, that all the experiments, including whatever was done at the suggestion of the defendant, were conducted at the expense of the firm and were treated as expenses incurred under the arrangement between the parties. We concur in the conclusion reached by the learned trial judge as to the right of the plaintiff to an interest in the patents, including the patent issued to the defendant in his own name alone. We are also of opinion that no error was committed in adjudging that the plaintiff was entitled to share in all the advantages derived or derivable by the defendant from the inventions, past or future, which are within the contract between the parties. The profits heretofore received by the defendant from licenses or sales of the right to use the invention, are assumed by the defendant to be reached and covered by the judgment. We think the defendant is justly accountable to the plaintiff for his share, according to his interest under the contract; It is not the case of one joint owner and patentee exercising the right to. license the use of the invention, which he has a right to do without accountability to the other joint owners or patentees. The defendant denied the title of the plaintiff and re- ■ fused to clothe him with a legal title to his interest m the patents, thereby practically precluding him" from availing himself of tlieir use, by granting licenses to others. His situation was analogous to that of a tenant in common of land, who has been ousted by a co-tenant, who has appropriated the rents and profits exclusively to his own use. The plaintiff cannot have the full benefit of his agreement unless the defendant is held to account for the profits received by him. The judgment does not specifically define what future inventions will come within, or result from the contract between the parties. This can be determined when the question arises. The claim that the agreement being by paroi, was void under the statute of the United States, is not well founded. The agreement related to an inchoate invention, not perfected or patentable at the time the agreement was made, and was not, therefore, within section 4898 of the U. S. Eevised Statutes, which declares that “every patent, or any interest therein, shall be assignable in law by an instrument in writing.” Even in the case of a perfected invention, the statute does not prevent the obtaining of an equitable title thereto, or interest therein by paroi (Walker on Patents, § 274), nor does it apply to a paroi executory agreement to transfer an interest in an invention contemplated, but not perfected, and not cognizable under the patent laws when the agreement was made. The plaintiff by the agreement acquired an equitable right which attached to the interest of the defendant in the patents subsequently issued, and he is entitled to demand a legal title corresponding with his equitable interest.

The objection that there was no reference pursuant to the interlocutory judgment is not based upon any fact affirmatively appearing on the record. But assuming that the final judgment was rendered without a reference, it was nevertheless entered upon the direction of the judge before whom the case was tried, and at most it was an irregularity to be reached by motion, and is not brought up by an appeal from the judgment simply.

We think the judgment should be affirmed.

All concur.

Judgment affirmed.


author: FnsrcH, J.

text:
    William H. Dwinelle, Respondent, v. Albert R. Edey, Appellant.
    The complaint in this action set up a copartnership agreement, between the parties, under seal, bearing date April 23,1869, which contained a covenant “ that all losses happening to said firm * * * and all expenses of the business shall be borne by the said parties in equal proportion.” The complaint then alleged in substance the expiration of the partnership agreement; an application of all its property and assets to the payment of its debts ; that the business had resulted in large losses, which had been paid by plaintiff, and that defendant had failed to pay his one-half of the losses and expenses. An accounting and payment of said one-half was demanded. The defendant pleaded the statute of limitations. Held, that the action was upon a sealed instrument within the meaning of said statute (Code of Civ. Pro., § 381); not an equitable action for contribution merely; and so that the twenty years limitation applied.

      Peters v. Pelaplaine (49 N. T. 362), distinguished.
    (Argued April 2,1886 ;
    decided June 1, 1886.)
    Appeal from order of the General Term of the Court of Common. Pleas in and for the city and county of New York, made January 21, 1884, which reversed a judgment in favor of defendant, entered upon a decision of the court on trial at Special Term, and which granted a new trial. (Reported below, 12 Daly, 253.)
    This action was based upon a copartnership agreement under seal between the parties, dated April 22, 1869, which con tained among others the following provisions:
    “ Whereas, it is the intention of the said parties to form a copartnership for the purpose of prosecuting the business of slaughtering and rendering cattle, and the various branches of the same, at or in the vicinity of Corpus Christi, Neuces county, State of Texas, under a license, made for that purpose, by Thomas Mara Fell, patentee, under the laws of the United States, for which purpose they have agreed on the following terms and articles of agreement, to the faithful performance of which they mutually bind and engage themselves, each to the other, his executors and administrators :

      “ First. The style of the said copartnership shall be “ Edey & Dwinelle,” and it shall continue for the term of three years from the above date, except in case of the death of either of the said parties within the said term, or the same be sooner dissolved by mutual consent.

      “ Second. The said Dwinelle agrees to supply to said firm the sum of $11,000 (in all) in cash, as it may be required, from time to time, to pay for the erection and construction of the necessary works, appurtenances, etc., for the transaction.of said business.
    “ Third. It is mutually agreed that said business shall be carried on until such time as the net profit thereof shall equal the said sum of $11,000 ; when the said sum of $11,000 shall be repaid to said Dwinelle, or his legal representative, in discharge of said loan to said firm by him.

      “ Fourth. After such repayment of said loan the interest of the said parties in the said copartnership shall be as follows: In the proportion of three-fifths to the said Albert E. Edey and of two-fifths to the said William II. Dwinelle, of the net profits of the business, after deducting all the expenses connected therewith. After the repayment of said loan the said parties shall be owners of their joint stock in equal proportions, and in case of any addition being made thereto, by mutai consent, the same shall be contributed equally; and all losses happening to the said firm, whether from bad debts, depreciation of goods, or any other cause or accident, and all expenses of the business, shall be borne by the said parties in equal proportions.”
    The court found that the parties carried on business under said articles of agreement, and the plaintiff advanced the sum provided by said partnership agreement. That the business proved unprofitable and was wound up in the month of December, 1869; and that thereafter and on or before June 30, 1870, the plaintiff, in addition to said $11,000, paid and expended moneys for said firm in its business. That before the commencement of this action payment of one-half said sums, paid by plaintiff on account of the copartnership, was demanded of the defendant, who refused to pay the same or any part thereof.
    The action was commenced in 1883. The defense, among other things, was the statute of limitations, and the trial court held that the action was barred by the statute.
    Further facts appear in the opinion.

      Aaron J. Vanderpoel and John M. Bowers for appellant.
    As there is no agreement in the alleged articles of copartnership to contribute, plaintiffs’ cause of action arises from the implied contract existing between the parties to contribute, and should have been brought within six years. (Code, §§ 382, 388; Codman v. Rogers, 10 Pick. 111; Bommer v. Am. Spiral Co., 44 N. Y. Sup. Ct. 454 ; 81 N. Y. 468; Peters v. Delaplaine, 49 id. 362, 372; Loder v. Hatfield, 71 id. 92; Coleman v. Second Ave. R. R. Co., 38 id. 201, 204; Jackson v. Sackett, 7 Wend. 94; Heyer v. Pruyn, 7 Paige, 465 ; Borst v. Corey, 15 N. Y. 505; Penniman v. Vinton, 4 Mass. 276-7 ; Angell on Lim., § 69.) An action for a copartnership accounting should be brought within six years. (Atwater v. Fowler, 1 Edw. Ch. 417; Murray v. Coster, 20, Johns. 576; Humbert v. Trinity Church, 24 Wend. 587; Borst v. Cory, 15 N. Y. 505; Dodge v. Essex Co. Ins. Co., 12 Gray, 65; Woods on Lim. 116 ; Colter v. Colter, 1 Rob. [Va.] 79; Wilhelm v. Caylor, 32 Md. 151; Kelly v. Kelly, 3 Barb. 419; Appelby v. Brown, 24 N. Y. 143.) Plaintiff should not be allowed by coming into equity to extend the time that he would have on the law side of the court. (Knox v. Guy, L. R., 5 H. of L. 656; Noyes v. Crawley, L. R., 10 Ch. Div. 31; Coster v. Murray, 5 Johns. Ch. 522; Loder v. Hatfield, 71 N. Y. 97; Carr v. Thompson, 87 id. 160; Lawrence v. Trustees L. and W. Orphan Asylum, 2 Denio, 577; Atwater v. Fowler, 1 Edw. Ch. 417.) Statutes of limitations are founded on sound policy and are statutes of repose, and not to be evaded by construction. (Dickinson v. McGarny, 5 Ga. 486; McCarthy v. White, 21 Cal. 495.) The moment that the plaintiff paid the copartnership debts, his cause of action accrued; they ceased to be copartnership debts. (Gandolfo v. Appleton, 40 N. Y. 533; Millerd v. Thorne, 15 Abb. [N. S.] 377; 56 N. Y. 402.) The action is for money laid out and expended, and the sealed instrument is only evidence to charge the defendant with his part of it, ( Wright v. Butler, 6 Wend. 284; Baker v. Martin, 3 Barb. 634.)

      Herbert G. Hull for respondent.
    The twenty years’ limitation prescribed by section 381 of the Code of Civil Procedure (§ 90, Code of Pro.) applies in terms to an action upon a sealed instrument. (Peters v. Delaplaine, 49 N. Y. 370; note to § 381, Code, of Civ. Pro. [Throop’s ed.] ; Glover v. Tuck,, 24 Wend. 153-158; Madge v. Ping, 12 Hun, 15.) This action is brought directly upon the covenant to pay one-half the losses and expenses of the business and, upon proof of the breach, the plaintiff is entitled, as matter of strict right, to recover. (Com. Dig., tit. Cov. [A 1]; Jones v. Butler, 87 N. Y. 616.) The law does not imply promises upon covenants or sealed agreements. (Frey v. Johnson, 22 How. Pr. 316; Hall v. Dean, 13 Johns. 105; 1 Chit. PI. 109; Sampson v. Easterly, 9 Barn. & Cress. 505 ; Salton v. Houston, 1 Bing. 433.) If a-man acts contrary to the intention of a covenant it is a breach. (Com. Dig., Covenant [E 2].) The doctrine of contribution is not founded upon an implied promise .to pay. It is not founded upon contract at all, but rests on the principle that equality of burden as to common right is equity. (Aspinall v. Sacchi, 57 N. Y. 335-6; Norton v. Coon, 3 Denio, 130; Peering v. Earl of Winchelsea, 2 Bos. & Pul. 270; Peniman, v. Vinton, 4 Mass. 276; Bommer v. Am. Spiral, etc., Co., 44 Sup. Ct. 454; affirmed, 81 N. Y. 468.) To make the action-for contribution analogous to the present, it will require a covenant between the parties to bear equally in some definite proportions the burden of the obligation. (Burge on Suretyship, 382; Burr v. Stenton, 43 N. Y. 462; Miller v. Watson, 5 Cow. 195.) Where a partnership is formed by indenture or an instrument under seal prima facie, all actions for accounting between the parties must be predicated directly upon the articles and will not be barred until twenty years have elapsed. (Wood’s Lim. of Actions, § 72; Foster v. Allanson, 2 T. R. 479; Gilson v. Stewart, 7 Watts, 100; Anon., 2 T. R. 128-9 ; 1 Chit. PI. 94; Andrews v. Montgomery, 19 Johns. 162-6.) It does not follow because the parties agreed that the first profits, amounting to $11,000, should be applied to the repayment of that sum advanced by the plaintiff, that if there were no profits the loan was not to be repaid, nor in any case of loss that the defendant should not share it with the plaintiff. (Neudecker v. Fohlberg, 3 Daly, 407; Broom’s Legal Maxims, 577, 580.) It could not be claimed that there was no partnership. (Frey v. Johnson, 22 How. 316 ; Douglass v. Waer, Anthon’s Nisi Prius, 179; Weaver v. Bentley, 1 Caines, 47; English v. McNair, 34 Ala. 40; In re Denny, 8 Ired. Eq. 427; 1 Wait’s Actions and Defenses, 126.)
   FnsrcH, J.

We are content with the determination of the General Term that the written agreement of the parties created a copartnership from its date, and that such relation was not postponed or intended to be postponed until a period when the business profits had fully reimbursed the plaintiff for his advances. While all such profits were at first applicable to the debt, the latter was a debt of the firm, due to one of its members ; the advance was to the copartnership and for its business purposes; and the contract which limits its duration to three years plainly indicates the moment of its beginning by the words “ three years from this date.”

The further question in the case, as to the statute of limitations, and what lapse of time is a bar to the action, depends upon a correct interpretation of the provisions of the Code, and upon the substantial character of the action. The contract of copartnership was under seal." It fixed and settled the respective interests of the parties in the capital stock, and contained an express covenant that “ all losses happening to said firm, whether from bad debts, depreciation of goods, or any other cause or accident, and all expenses of the business shall be borne by the said parties in equal proportions.” This language is criticised as not amounting to a covenant to pay losses to the partner who has' been compelled to overpay his share. But that is an interpretation quite too technical and narrow. Each party covenanted with the other to bear his specified proportion of the losses, and that he does not do when he omits to pay his just share to the partner who has been compelled to overpay. The covenant amounts to an express agreement to reimburse to the paying partner the excess above his share, for, when the creditors have been paid by one, a proportion of the losses can only be borne ” by the other through a payment to the partner who has advanced the whole. In the emergency which happened, the covenant amounted to an express agreement to reimburse the partner payingin excess of his share. Upon this covenant the complaint founded the cause of action pleaded. After averring the partnership agreement it alleges its expiration by the terms of its own limitation; that all the property and assets of the firm had been applied to, and exhausted in, the payment of debts; that all of these except the sums due to the plaintiff had been paid by him with the aid of the partnership property; that the business had resulted in large losses; and that the defendant had “ failed to pay one-half of the losses and expenses incurred in said business as he agreed to do in and by said copartnership agreement.” Thfe relief demanded is an accounting and the payment of the sum to be so ascertained which the complaint alleges is in excess of $27,000. . So that on the face .of the pleadings there was stated as the substantial cause of action a covenant under seal, its breach, and damages resulting beyond a certain amount, to ascertain which an accounting was needed. The pleader vested the plaintiff’s right upon the covenant and its breach, claiming the resultant damages as an absolute right, and seeking the aid of equity only that the amount might be more conveniently ascertained.

We concur in the opinion of the General Term that this was a cause of action founded upon a sealed instrument, within the meaning of the limitations prescribed for the commencement of actions. (Code, § 90; Code of Civ. Pro., § 381.) The argument to the contrary rests mainly upon the theory that the action is an equitable one for contribution, and founded not upon the sealed agreement, but upon the doctrines of equity operating upon a given relation, and reaching a just result out of regard for justice, and irrespective of any contract of the parties to that effect. The fact of the partnership is said to be alone material, and it is not of the least consequence whether that fact be evidenced by a sealed contract, an unsealed writing, or a verbal consent. The argument is very strong, if the action may be correctly treated as one for contribution. But that action fitly reaches an emergency not here existing. It takes care of a case in which the parties have not fully taken care of themselves. From the partnership relation it evolves certain unexpressed and uncovenanted duties as mutually intended by the fact of the relation, and is at least needless where the parties themselves have stipulated as to all such duties in detail, and bound themselves by express covenants for their performance. When thafoccurs, and the action may rest upon an express covenant purposely made, and is brought explicitly upon it, there seems to be no sound reason for turning it into an action for contribution merely. That is not needed to sustain a recovery, and in face of the sealed covenant, and the plain choice of the plaintiff to stand upon it, we think it ought not to be treated as an action for contribution such as the • appellant claims. The cases cited to that effect were those in which, without the aid of doctrines peculiar to equity, there was no cause of action. The subject was very fully discussed in Peters v. Delaplaine (49 N. Y. 362), which was an action for specific performance. In such an action equity acts, or withholds its aid upon grounds peculiar to itself. A covenant to convey does not give an absolute right to a conveyance, and an action seeking that relief depends upon other circumstances than the covenant, and lies in the equitable discretion of the court. In the present case, however, the covenant and its breach gives the absolute right to a recovery of the resultant damages, and it is only in the mode of ascertaining them that equitable aid is found useful. The substance of the action is to recover damages for a breach of covenant, and is founded upon the sealed instrument. The illustration suggested by the learned trial judge of the nature of the action between joint obligors in a bond where one has paid the whole debt may serve still further to elucidate our conception of the true rule. He says very correctly that the liability inter sese does not depend upon any covenant or contract between themselves. Their sole expressed contract is to pay the obligee. But suppose that in the bond there was inserted an express covenant running, not to the obligee, but to each other, to bear respectively one-half of the debt. In such a case their mutual liability would depend upon no equitable doctrine, but be fixed by an expressed covenant, which would by itself sustain and support the right of action. The covenant here is of that character. It is not one running to the creditors, as is the covenant of the ordinary bond, but one running to each other, and establishing their rights and duties as between themselves. The General Term, therefore, was correct in saying that the limitation of twenty years was applicable to the action.

The order should be affirmed, and judgment absolute rendered for the plaintiff upon the stipulation.

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

Order affirmed and judgment accordingly.


author: Huger, Gh. J.

text:
    The People, ex rel. Augustus N. Weller, Respondent, v. Charles De Kay Townsend, Appellant.
    Under the provisions of the State Constitution in reference to the office of surrogate (Art. 6, § 15), and the statute of 1871 (Chap. 859, Laws of 1871, as amended by chap. 613, Laws ot 1881),' when a vacancy occurs in that office, outside of the counties of New York and Kings, caused by the death of the incumbent,which, under the Constitution, is to be filled by an election at the next general election, the election must be for a full term of six years, beginning on the first day of January after the election, not merely for the unexpired term of the deceased surrogate.
    It was competent for the legislature to provide, as it did by the said act of 1871 (§ 5), that the person so elected to fill a vacancy shall enter upon the discharge of the duties of the office immediately. The constitutional term is not thereby enlarged, but begins on the first day of January after the election, and the provision simply furnishes a mode of filling the vacancy up to that time.

      People, ex rel. Weller, v. Townsend(40 Hun, 360), reversed.
    (Argued April 36, 1886;
    decided June 1, 1886.)
    Appeal from judgment of the General Term of the Supreme Court, in the second judicial department, entered upon an order made February 19, 1886, which directed judgment upon a case submitted under section 1279 of the Code of Civil Procedure. (Reported below, 40 Hun, 360.)
    The material facts are stated in the opinion.

      John E. Parsons for appellant.
    The only term of office fixed by law in the counties where a surrogate is a separate officer is six years. (Const. of 1846, art. 6; People, ex rel. Rosenkranz, v. Carr, 86 N. Y. 512, 515.) The language of •the constitutional or statutory provision is to prevail, except in cases where the clear and obvious intention is to the contrary. (Johnson v. H. R. R. Co., 49 N. Y. 455, 462; Benton v. Wickwire, 54 id. 226.) When the Constitution intends that an election shall be for the residue of an unexpired term, it says so. (Const., art. 10, § 5 ; Laws of 1871, chap. 859, § 5 ; Laws of 1849, chap. 28, as amended in 1867; Keeler v. Keeler, 17 N. Y. 370.)

      1Í. E. Sickels for respondent.
    The Constitution does not provide for filling accidental vacancies in the office of surrogate caused by death, resignation, etc., but has left that duty to the legislature. (Const., art. 6, §10; Laws of 1847, chap. 276; Laws of 1851, chap. 175 ; Laws of 1872, chap. 767; People v. Garey, 6 Cow. 642; 9 id. 640; Ex parte McCollum, 1 id. 550; Coffin's Case, Daily Reg., Nov. 28, 1885; 100 N. Y. 236 ,; People v. Mason, 99 id. 83; People v. Snedeker, 14 id. 56 ; People v. Fisher, 24 Wend. 215.) From the legislation upon the subject it is to be implied that the person elected to fill such vacancy holds for the unexpired term only. (Laws of 1871, chap. 859; Code of Civ. Pro., § 2492; R. S., part 1, chap. 5, tit. 6, art. 4, § 34.) What is implied in a statute is as much a part of it as what is expressed. (U. S. v. Babbitt, 1 Black, 61; Gelpcke v. City of Dubuque, 1 Wall. 221; 4 Wheat. 644; People v. Draper, 15 N. Y. 554, 558 ; Ogden v. Saunders, 12 Wheat. 270 ; People v. City of Brooklyn, 89 N. Y. 200; Embury v. Connor, 3 id. 518 ; Talbot v. Hudson, 16 Gray, 417, 422; In re Willington, 16 Pick. 96; Cooley’s Const. Lim. 184 ; People v. Briggs, 50 N. Y. 553 ; People v. Albertsen, 55 id. 50; Roosevelt v. Godard, 52 Barb. 533; People v. McKenney, 41 id. 515 ; People v. Draper, 15 N. Y. 554; People v. Comstock, 78 id. 360 ; People v. Bull, 46 id. 57.) In the determination of the meaning of a provision of written law the meaning is to be collected <mteoedentibus et consequentibus, and a later provision may be qualified by a prior one, or the contrary. (People, ex rel. v. McGlave, 99 N. Y. 83 ; People, ex rel. Lent, v. Carr, 100 id. 235, 252.) The convention which framed the judiciary ( article of the Constitution did not intend to require that, in ease of an accidental vacancy during a term, the vacancy should be filled in no other manner than by an election for a full term. (Records of Convention, vol. 4, pp. 2592, 2652, 2663, 2671; People, ex rel. v. McClave, 99 N. Y. 83, 93; People v. Keeler, 17 id. 370.) The legislature possesses all legislative power except where forbidden or restricted by the Constitution. (People, ex rel. v. Comstock, 78 N. Y. 356, 361.) The act of 1871 (§ 5, chap. 859), although it does not in express terms declare that the person elected to fill a vacancy in the office of county judge or surrogate shall hold his office simply for the unexpired term, does so in substance and effect, and most unequivocally, when it provides that the person so elected “ shall enter upon the discharge of the duties of the office * * * immediately upon the receipt of the certificate of election.” (1 R. S. 111, § 3 ; People v. Keeler, 17 N. Y. 370 ; People v. McKinney, 41 Barb. 515.) The Constitution does not execute itself, and there must be some valid legislation, providing for the filling of vacancies, to authorize an election for that purpose. (People, ex rel. v. Comstock, 78 N. Y. 336, 360.) If the election is for a full term the legislature has no more power to extend that term, by saying that the person elected shall hold the office by virtue of his election for one or two months before the regular full term begins, than it can extend the term by adding time to the end thereof, and that it may not do. (People, ex rel. v. Bull, 46 N. Y. 57.) The legislature cannot divest itself of responsibility and leave the question of an appointment to the people. (Barto v. Himrod, 8 N. Y. 489.)
   Huger, Gh. J.

The only question presented by this appeal is whether the defendant, who was elected surrogate of Queens county at a general election in November, 1880, is entitled to a full term of six years from January first succeeding' his election, or is limited to filling out the unexpired term of his predecessor. Alexander Hagner was elected surrogate of the county in November, 1879, for a term of six years from January 1, 1880, but after holding the office about three months, died April 8, 1880, and was succeeded by G-arret J. Garretson under an appointment from the governor “for and during the time limited by the Constitution and the law,” and Garretson duly qualified and discharged the duties of the office until January 1, 1881. The defendant then entered the office by virtue of his election, and continued to discharge its duties until •January 1, 1886, when the relator demanded possession claiming under an election held in November, 1885, at which he received a majority of the votes cast for surrogate. This election was invalid, unless the term to which the defendant was entitled by virtue of his election expired, on December 31, 1885.

The office of surrogate as it now exists was created and organized under the judiciary article of the Constitution adopted in 1870, and the statutes passed to effectuate the constitutional intent. The portions of the Constitution relating to the present inquiry read as follows: Article "6,-section 15, provides:

“The existing County Courts are continued and the judges thereof in office at the adoption of this article shall hold their office until the expiration of their respective terms. Their successors shall be chosen by the electors of the counties for the term of six years.” The county judge shall also be surrogate of his county / but in counties having a population exceeding forty thousand, the legislature may provide for the election of a separate officer to be surrogate, whose term of office shall be the same as that of county judge.” In order to carry into effect these provisions the legislature passed chapter 859 of the Laws of 1871, which among other things provided for the election of county judges in each of the counties of the State (except New York and Kings), upon the expiration of the terms of office of the existing incumbents, and for the election of separate officers, as surrogates, at the option of the boards of supervisors of the respective counties, whose population exceeds forty thousand. Under these provisions nearly one-half of the counties, elected to avail themselves of the privilege of choosing separate officers as surrogates, and the duties of the offices of county judge and surrogate throughout the State were thereafter distributed among three classes of persons, viz.: those who performed the duties of both county judge and surrogate, those who discharged those of county judge alone, and those who acted as surrogate .only. The scheme of the Constitution whereby the duties of both surrogate and county judge were in a majority of the counties of the State, united in the same person, rendered it imperative that their terms of office should be identical, and furnished an obvious reason for the requirement relating thereto, contained in that instrument. In the case of county judges who perform the duties of surrogate, they are by” force of the Constitution none the less county judges, although they also act as surrogate and are affected by all legislation applicable to county judges or surrogates, but in the case of separate officers elected as surrogates their terms of office, must conform to those of all county judges, as the result of the fundamental law declaring that they “ shall be the same as the county judge.” In view of the circumstances it will be seen how impossible it is by legislative enactment to sever the modes of selection, or the terms of office of one of these classes from the other, save in the counties of Kew York and Kings, which are in this respect excepted from the operation of the Constitution. It may occur that the competency of persons, to fill the respective offices of surrogate and county judge may differ, and might require one to cease to serve in ope capacity, whereas he could lawfully continue to act in the other; but this does not seem to us to present any obstacle to the enforcement of the constitutional provision as to the identity of their respective terms. of office. (People v. Carr, 100 N. Y. 236.) In the cases of county judges who are also surrogates the termination of their competency as county judges, wquld also render them incompetent to serve as surrogates, inasmuch as their right to act as surrogates is a mere incident to the office of county judge,-and must terminate when their capacity to serve as county judge ceases.

As to the separate officers holding the office of surrogate, the circumstance that they are authorized to continue to act as surrogate, when a county judge |,would be ineligible to serve as such, does not create any difference in their respective terms of office, or introduce any embarrassment in enforcing the constitutional scheme, as to the identity of their terms of office.

It would, therefore, seem that the language of the Constitution had indissolubly wedded the -official terms of all county judges and surrogates, and had thus placed the subject beyond the legislative power to effect any discrimination between these offices, in that respect.

We are thus brought to the consideration of section 5 of the act of 1871, which it is claimed has that effect. It reads as follows: § 5. The separate officer elected and performing the duties of the office of surrogate and the legal officer discharging the duties of county judge and of surrogate and elected at the election provided for in this act, shall enter upon their duties on the first day of January next after such election and shall hold their office for the term of six year’s from said first day of January; lout when- such officers shall loe elected to fill a vacancy then they shall enter upon the discharge of the duties of the office to which they have been elected immediately upon the receipt of the certificate of such election.” In this connection it is important to consider also the amendment of that act effected by chapter 613 of the Laws of 1881, which is as follows: § 9. “ When a vacancy shall occur in the office of any county judge in any of the counties of the State (except Mew York and Kings) from any cause, before the expiration of term, the office shall be filled for a full term of six years at the next general election, happening not less than three months after such vacancy occurs.” Whatever provision may at any time be enacted by the legislature, affecting the term of office of county j udge must, if lawfully adopted, be by force of the Constitution equally applicable to the office of surrogate. Thus the act of 1881, providing that a vacancy happening in the office of county judge shall be .filled for a full term of six years at the next general election thereafter, operates both to fix the status of a surrogate thus elected, and to repeal any prior legislative provisions, if any there were repugnant thereto. (Livingston v. Harris, 11 Wend. 329; People v. Bull, 46 N. Y. 57; Harrington v. Trustees, 10 Wend. 547.)

Although this amendment was adopted subsequent to the election under which the defendant claims, it became a law before the election of the relator, and must be regarded not only as a legislative interpretation of the act of 1871, but as determining the law of the land when the rights of the parties herein accrued.

Whatever effect this amendment had upon the term of office of a county judge, under the force of the constitutional requirement that the term of a surrogate shall be the same as that of a county judge, it cannot be questioned but that it had a like effect upon surrogates. The amendment in terms refers generally to the office of county judge alone, but this embraces not only those persons who are county judges, but also those who are also surrogates of their county. If the act of 1871 is susceptible of the construction placed upon it by the relator, we should have not only one term of office for a county judge and another for a surrogate, but also different terms for the same officer in respect to the several duties required to be discharged by him. A construction so absurd and repugnant to common sense should not be adopted if the language of the statutes is reasonably susceptible of any other meaning.

It is also well to premise that there are no considerations of public policy to be subserved or special object to be accomplished, in preserving the periodicity of election, in the case of these officers as there was in the case of People, ex rel. Mason, v. McClave (99 N. Y. 83), which requires the adoption of fixed consecutive periods for their election. The primary object of the Constitution seems to have been to make the officers elective, and to give efficiency to the administration of their duties by enlarging the terms of their incumbency, and this seems to be best promoted by giving-a legitimate effect to every constitutional election of such officers.

In considering this question it is also important to observe that there is no express provision, either of the Constitution or the statutes, which restricts the term of an elected county judge or surrogate to any other period, than that of six years mentioned in the Constitution, and the point presented is, whether in giving a construction to the statute of 1871 it shall be held by implication to have been intended to restrict the duration of the term, in any case. The language of the section is susceptible of two constructions only, and they are presented by the respective parties hereto.

The defendant claims that the words where such officer shall be elected to fill a vacancy,” may be interpreted according to the popular signification of the language, and considered descriptive merely of the occasion for the election, and not as defining the term of office, while the relator insists that they define the limit of the term. Upon the success of this contention the relator’s case must stand or fall.

Although the question 'made has, under the aspect presented by the various statutes relating thereto, been the occasion of quite conflicting views on the part of able j urists, and may not be entirely free from doubt, yet we think when examined in the light of the controlling effect, to be given to the constitutional provisions, it is still capable of a reasonably certain solution. All of those contingencies for which the Constitution, either expressly or impliedly provides, must be governed by its provisions, and it is only in cases expressly delegated to the legislature for its action, or when the Constitution is silent on the subject, that the legislative will is controlling. An examination of the Constitution indicates certain subjects affecting the question under consideration, upon which its framers.have clearly expressed their will, and which are decisive, as we think, of this appeal. Thus, express provisions declare that county judges and surrogates are to be elected, and when elected their terms of office are to commence on the first day of January next succeeding their election and to continue for six years therefrom. The language of the Constitution is broad, plain and unequivocal. The successors of the judges then in office “ shall be chosen by the electors of the counties for the term of six years.” Who are the successors ” of the judges then in office? It confessedly does not mean the immediate successor alone, but by universal acceptation has been held to lay down the rule, not only by which the constitutional term of all successors shall be determined, but also a permanent method for their selection. (People, ex rel. v. Carr, 86 N. Y. 512, 514.) The language applies to all of the indefinite line following the original incumbents, and furnishes a controlling rule on the subject, except in the special cases where the Constitution provides for the filling of vacancies. Whenever a successor to a prior incumbent, is to be chosen by election, his term of office is fixed at six years, by the express provision of the Constitution. Section 16, article 6 of the Constitution provided for certain vacancies in these offices by authorizing the legislature, on the application of the board of supervisors of any county, to provide for the election of special officers to discharge the duties of county judge and of surrogate in such counties in case of their inability or of a vacancy, and in some of the counties of the State these provisions have been availed of, and- the special officers so chosen, necessarily fill any vacancy occurring in the offices, to discharge the duties of which, they were elected. In other counties, however, vacancies in the office of county judge and surrogate must be supplied according to the general provisions regulating the mode of filling them, provided by the Constitution and statutes; and the county of Queens is one of such counties.

In the case of elective officers the necessity for the existence of some continuous authority to fill vacancies temporarily, in order that the performance of their duties may not be too seriously interrupted, and the inconvenience and inadequacy of any system by which such power could be exercised by the people through the medium of popular elections except at regular periods, led to the adoption of that clause of the Constitution which delegated to the legislature, power to make provision for such cases. The entire scope and theory of the Constitution, however, requires those offices when vacant to be filled by the people, at their regular annual election when it is possible to do so, but when a departure from that mode is rendered necessary by any circumstance, the power of selection is limited to the shortest space of time possible, and a return to the elective principle at the earliest opportunity, is necessitated. The Constitution, therefore, provides that the legislature shall make provision for the selection of persons to fill temporarily such vacancies as may occur in public offices, but in the case of the adoption of any other mode than that of election, such power is limited to the period of time intervening between the commencement of the political year next succeeding the first annual election after the happening of the vacancy, and the occurrence of the vacancy. (People v. Keeler, 17 N. Y. 370, 371; § 5, art. 10, Const.)

In the exercise of this power it was competent for the legislature to provide, as it did by section 5 of the act of 1871, for the selection of some person, to fill the office of surrogate between the occurrence of a vacancy, and the first day of January thereafter, and the designation by such section of the persons who had been theretofore elected as surrogate, did not thereby enlarge his constitutional term, but provided simply a mode of filling out a term of' limited duration, over which the legislature had unqn estionable constitutional authority. . During the period intervening between the occurrence of a vacancy happening so that an election can be held at a regular general election, and the commencement of the next political year, the Constitution gives the legislature unlimited power to indicate the mode of filling it, and it is competent to provide therefor by conferring power of appointment upon the executive department or in such other mode as in its discretion it may deem wise and prudent.

After the death of Hagner, Garretson was appointed to fill the vacancy in the office “ for and during the time limited by the Constitution and the laws.” It was competent for the legislature to provide that his authority should terminate upon the election of a successor, and that such successor should serve as a “ locum Unens ” to the first of January succeeding the occurrence of the vacancy. The legislature had not, however, the power to restrict the term of a duly elected officer, whose term of office had been fixed by the Constitution, or to provide any other term for a surrogate, than that belonging to a county judge. A reasonable construction of the act of 1871, therefore, requires us to hold that the words “ when such officers shall be elected to fill a vacancy,” refer simply to the contingency out of which the necessity of an election arises, and do not attempt to limit the term for which the officers named wcre-to be elected. To hold otherwise would bring the provision in conflict with the limitations upon the legislative power imposed by the Constitution (Sage v. City of Brooklyn, 89 N. Y. 200), and create an unwarrantable distinction between the terms of office pertaining to county judges, who perform the duties of judge and surrogate, and those who hold only the separate office of county judge.

The interpretation thus put upon the act of 1871 not only gives it legitimate effect but avoids a conflict with constitutional provisions, and brings the offices of county judge and surrogate into harmony in respect to filling vacancies therein by an election, with those of judges of the Court of Appeals and Supreme Court and also with those of sheriffs, county clerks, registers, coroners, district attorneys and most other elective officers mentioned in the Constitution. (§ 1, art. 10, Const.) It is unnecessary tor ns to attempt to give a construction to section 2492 of the Code of Civil Procedure, inasmuch as the board of supervisors of Queens county, has not attempted tó exercise the authority conferred by that provision.

These views lead to the conclusion that the defendant was elected to the office of surrogate of Queens county in 1880 for the full term of six years, from the first day of January succeeding, and is entitled to hpld such office, during that period.

The judgment of the Supreme Court should be reversed and final judgment rendered for the defendant, with costs.

All concur.

Judgment accordingly.