text:
    JOHN W. EARL, Plaintiff, v. ALFRED N. BEADLESTON, Defendant.
    I. PARTY WALLS.—TAKING DOWN ONE OF TEE BUILDINGS.

    1. RIGHTS AND LIABILITIES OF THE PARTIES RESPECTIVELY INTERESTED THEREIN.

      (a.) Neither party can of his own head do or cause anything to be done which will weaken the wall perpendicularly.
    (b.) Liability for doing or causing such things to be done.

    1. If ike necessary consequence therefrom is to weaken the wall that interested party who did or for whom the things were done, will be liable for the damages sustained by others; and that whether the things were done by his own hand, or the hands of others hired by him, or by ihe hands of workmen employed by one who had contracted with him to perform the work.

      (a.) Respondeat Superior.—Doctrine of does not apply.
    2. If the weakening of the wall be not ihe necessary consequence therefrom, but results only from want of care and skill in doing the work, the party interested in the wall is not liable for damages resulting from the want of care and skill, on the part of the workman employed by one who has contract with him to do the work.

      (a.) Respondeat Supebior.—Doctrine of applies. I. When not a necessary consequence. The act and operation of tearing down one of ihe two buildings, whose beams rest in the wall, does not involve, as a necessary consequence, the weakening of the walls. It may be taken d own by the use of ordinary care in such manner as to leave the wall as strong as it was.. Therefore, under a contract to "take the building down,” the owner who gave out the contract is not liable for injuries sustained through the weakening of the wall, by the careless or unskillful performance of the work, on the part of the workmen employed by the contractor.
    1. Notice.—Not necessary in such case to give notice of the intention to take down the building.
    Before Curtis, Ch. J., Sedgwick and Speir, JJ.

      Decided May 8, 1877.
    Exceptions ordered to be heard in first instance at general term. Verdict for plaintiff, with stay of entry of judgment.
    The plaintiff and the defendant were the owners, respectively, of two adjoining lots with houses thereon. Between these houses was an ancient party-wall, standing equally on the two lots. The house of defendant became decayed and in an unsafe state, and for that reason the department of buildings in the city of New York, being duly authorized therein, notified and required the defendant to take down his house or to make it safe. The defendant thereupon' entered into a contract with one Macgregor, that the latter should take down the defendant’s house. By the evidence, the contract was verbal, and was that Macgregor should “take the building down.”
    The action was for damages.to plaintiff from the falling of his building, caused by the party-wall being weakened in consequence of acts of Macgregor’s workmen. By stipulation between the parties in making the case, there was sufficient evidence to support the verdict of the jury on the following points : 1st. That there was negligence on the part of the workmen of Macgregor when engaged in tearing down defendant’s building. 2nd. That the party-wall was weakened by the removal of materials therefrom by the workmen when engaged in tearing down defendant’s building, and that the building of the plaintiff fell in consequence of the party-wall having been so impaired and injured. 3rd. That damage resulted to plaintiff from such negligence, and that the amount found for plaintiff was not excessive.
    On the trial the defendant asked first that the complaint should be dismissed, on the ground that defendant was not liable for damage caused by the negligence or unskillfulness of the workmen of Macgregor. This motion was denied, and exception was taken. After-wards the defendant asked the court to charge the jury that the defendants were not liable for such damage. This was refused, and exception was taken.
    The court in charging the jury, held, “ that the manner of the taking down of defendant’s building, not having been regulated by a contract which preserved the rights of the plaintiff in the party-wall, and no notice having been given to the plaintiff that such work would be done, the defendant is liable for the consequence of the acts of commission and omission of all those when he employed or caused to be employed to tear down his building, in so far as those acts worked an injury to plaintiff’s building. ’ ’ The defendant excepted to this.
    The jury found for the plaintiff.

      Geo. W. Carpenter, attorney, and Daniel T. Waldon, of counsel, for plaintiff, urged:
    I. When buildings are erected with a party-wall between them, each owner has an easement for the support of his building in the whole of the party-wall (2 Washburn on Real Property, 276, 334; Eno Del Vecchio, 4 Duer, 53 ; S. C., 6 Duer, 17; Partridge v. Gilbert, 15 N. Y., 601; Brooks v. Curtis, 50 Id. 639; Dowling v. Hennings, 20 Md. 179-184).

      II. The adjoining owner is bound to recognize this right of his neighbor, and it is his duty to see that it is not impaired; he may use the wall, or he may add to it and repair it, and remove his building, but he cannot interfere with the wall in any manner, unless he can do so without injury to the adjoining building. So far as his acts tend to affect the party-wall, “he acts at Ms peril, and must insure the safety of his operations (Eno v. Del Vecchio, 4 Duer, 53; 6 Id. 17; Brooks v. Curtis, 50 N. Y. 644, per Rapallo, J., and cases above cited ; Washburn on Servitudes, 572, 573, 575, 576; Hunt on Boundaries, &c., 114, 115, 116 ; Tyler on Boundaries, &c., 355).
    III. The cases relating to the liability of- a person for the negligence of another who stands to him in the relation of an independent contractor, and not of. servant, has no application to this case (Woodruff, J., Eno v. Del Vechio, 6 Duer, 28). If the person for-whom the work is done, is under a pre-existing duty or obligation to have the work done in a particular manner, he cannot be discharged from that duty, by creating between himself and another, the relation off-employer and contractor, and so casting upon the latter the burden of Ms own responsibility. He is bound: to see that the duty is performed (Storrs v. City of Utica, 17 N. Y. 104; Hole v. Sellingbourne, &c. Railway Co., 6 Hurlst. & Norman, 488, 497; Pickard v. Smith, 10 C. B. [N. S.] 470, 479, 480; Mersey Docks v. Gibbs, L. R. [1 E. & I. Appeals] 93, 114, 115; Francis v. Cockerill, L. R. [5 Q. B] 184; Shearman & Redfield on Neg. [3d Ed.] §§ 15, 85, 175; Wharton on Neg. § 185; Dwight, J., McCafferty v. S. D. & P. M. R. R. Co., 61 N. Y., 186, 187, &c., &c. ; Hunt on Boundaries, 116, 117).
    IY. The defendant in this casé was entirety unmind-ful of his duty to his neighbor ; he authorized a third, party to remove the building, and gave him- as compensation the old materials; the agreement was broad enough to include and permit the contractor to take away the party-wall, with all the materials in it; certainly to remove the materials of the building which were in the wall. His workmen did remove such materials from the party wall; thus weakened it and caused the plaintiff’s building to fall. The defendant did not in any way obligate the contractor to respect the rights of the plaintiff, or take any precaution that he should not be interfered with; he left the contractor to do as he pleased ; and even invited him to remove all the materials he could, by giving them to him as a reward for his labor. The contractor acted within the terms of Ms employment, and the defendant is responsible as if he did the act himself. “ When the injury results directly from the acts which the contractor agrees, and is authorized to do ; the person who employs and authorizes him to do those acts, is equally liable to the injured party” (Ibid. ; Ellis v. Sheffield Gas Co., 2 E. & B. 767; Water Co. v. Ware, 16 Wall. 576, per Clifford, J. ; Robbins v. Chicago, 4 Id. 679; Packard v. Smith, 10 C. B. [N. S.] per Williams, J., 480 ; Wharton on Neg. §§ 186, 187).
    Y. The plaintiff’s consent was not asked or obtained, nor was the plaintiff notified, that the defendant intended to clo the work, and the plaintiff did not know that the building was being’ taken down, until after it was taken down. The defendant was bound to give notice to the plaintiff, evén if necessity existed to remove the wall; and removing it without such notice, makes him liable for all such consequences which might have been averted (See cases above cited; Partridge v. Gilbert, 15 N. Y. 601).

      R. W. Townsend, attorney, and A. R. Dyett, of counsel, for defendant.

       Note.—Would the fact that the things were done pursuant to the requisitions of‘a public, officer duly authorized by the legislature to make such requisition, relieve the party from liability ?

   By the Court.—Sedgwick, J.

There is no denial that the defendant had the right at his pleasure to take down his own house, excepting such part of it as was portion of the party-wall, and the ends of the beams in the wall. If the weakening of the party-wall perpendicularly was a necessary consequence of the taking down of the house, then, the party-wall itself not having fallen into decay, the defendant would be responsible for the damage, whether he hired workmen to pull the building down or did it through a contract. If it were not a necessary consequence but a highly probable one ; for instance, if it would follow, unless precautions, beside care and skill were taken, then, whether the defendant would not have been bound to take these precautions, or at least to have given notice to the plaintiff that he might take them, is not a question in this case. There was no proof as to the probable consequences of taking defendant’s building down, and there is no inference to be drawn from the fact of a building having its beams in a party-wall that it could not be done without weakening the wall or taking out the ends of the beams in the wall. So the case is that the building might be taken down by the use of ordinary care, and the wall be left as strong as it was ; and the immediate question is, if the defendant made a contract with Macgregor to take the building down, is the defendant responsible for the workmen of Macgregor weakening the party-wall by their negligence or unskillfulness. I think the answer must be that the negligence was the negligence of Macgregor, and not of the defendant. Macgregor’s workmen were his servants. They were not the servants or agents of the plaintiff.

Button v. Hunter, 7 Hurl. & N. 726 (1862) was cited in McCafferty v. S. D. P. M. R., 61 N. Y., 183, by the judge delivering the opinion of the court. The case applied well-known principles, and may properly be used to determine the present case. The defendant was the owner of a house adjoining the plaintiff’s house, and between the two houses was an ancient party-wall. The defendant made through his architect a contract with another to have the front wall of defendant’s house taken down. In this front wall was a breast-summer, which extended six inches into the party-wall and proper workmanship required that before the breast-summer be removed, the plaintiff’s house be shored. The contractor through Ms workmen took out the beam without shoring up, which caused plaintiff’s house to be injured. It was adjudged that the defendant was not liable, on the ground ‘ that there was no evidence that the defendant stood in the relation of master and servant to the persons whose negligence caused the injury.” The judges considered the proposition, “that where a person employs tradesmen to do a work which may be dangerous to another, he is bound to show that he directed all care to be taken, and specifically pointed out in what way the danger was to be guarded against, or at all events did enough to exempt himself from responsibility,” but said that “it must be assumed that directions were given in the ordinary way, and to take all proper precautions not to do mischief.” It was further remarked that it “is said that the defendant ought to have given orders to do the work in a tradesmanlike manner, or ought to have pointed out wha,t was required. But it seems to me, that it would be unreasonable to require an unskilled person to point out to a skilled person in what way the work should be done. I think that, as matter of fact, if a man gives an order to a tradesman to do some work, he means to do it in the ordinary trades-manlike way.”

The substance of these considerations, as applied to to this case is, that the defendant had contracted to have the house pulled down in a manner that would not have been an injury to plaintiff’s rights. The contract therefore does not make him liable. When the contractor’s servants went beyond this contract, and damaged the wall by unskillfulness, they had not been thereunto authorized by plaintiff, and were not his servants or agents.

If the plaintiff’s contract had been, that the building, including a part of the party-wall, sho uld be taken down, of course there would have been responsibility for damages ; but the court, on the evidence, properly, in his charge to the jury, assumed that the contract did not refer to the party-wall.

The liability of defendant has been stated as if he, of his own head, had taken down his building. The fact was, that he did it in obedience to the direction of a public officer. The specific duty thereby created did not enlarge the duty he was before under to the plaintiff.

I do not see that the parties’ rights are affected by the defendant not giving notice to the plaintiff of Ms proposed action. The defendant was enjoying a right of property which, on the evidence, was not likely to cause damage to plaintiff. There was nothing to be done by plaintiff in the matter, to avert events which were not anticipated, or likely to happen.

I am of opinion that the exceptions should be sustained, and a new trial had with costs to the defendant to abide the event.

Curtis, Ch. J., and Speir, J., concurred.

       Breast-summer is a summer or beam placed breast-wise to support a superincumbent wall used principally over shop-windows to carry the upper part of the front, and supported on posts of columns.—Webs.


source: Caselaw Access Project

author: By the Court.—Sedgwick, J.

license: Public Domain

text:
    ABRAHAM NEWFIELD, Plaintiff and Respondent, also Appellant, v. HAYMAN COPPERMAN, Defendant and Appellant, also Respondent.
    I. LIBEL.

    1. Privileged Communications.

      (a.) The fire marshal of the city of Brooklyn, acting on information received by him from a party other than the defendant, subpoenaed the defendant to appear before him upon an inquiry in relation to a fire which had occurred in Brooklyn, and upon defendant appearing, asked him various questions and reduced the answers (which were relevant and material to the subject matter of the inquiry), to the form of a written deposition, to which he swore the defendant:
    Held,
    An action of libel would not lie against the defendant, founded on statements contained in the deposition, tending to charge plaintiff with arson, and this, even conceding such statements to be false.
    II. MALICIOUS PROSECUTION.

    1. Want op probable cause, proof op, necessary.

      (a.) Taking the plaintiff’s case that the above deposition was used as the foundation of a groundless prosecution j yet, as no proof of want of probable cause was given, the complaint was properly dismissed.
    Before Curtis, Ch. J., Sedgwick and Speir, JJ.

      Decided May 8, 1877.
    Appeal from judgment on verdict in favor of plaintiff.
    An order had been made at special term on a case by the judge who tiled the cause, granting a new trial, and at this time was argued the appeal of plaintiff from the order granting a new trial.
    The complaint alleged that on or about May 30, 1871, a fire broke out in the premises of another person and spread tp and destroyed the property of the plaintiff, on which he had insurance ; that the defendant, on June 7, before Patrick Ready, Police Fire Marshal of Brooklyn, did falsely and maliciously make the following oath or deposition to wit:
    City of Brooklyn, County of Rings, ss. :

    Hayman Copperman, sworn, says: I live at 192 Canal street, New York, and know Abraham Newfield (meaning this plaintiff), who kept a wadding factory at 64 and 66 Boerum street, Brooklyn. About two months ago, on a Saturday night, after ten o’clock, Newfield came to' my house with Samuel Joseph, and asked me to allow them to come in ; Wagner and Schneider’s furniture factory was on fire at the time; and they said they thought my home was burning, and they came to see; I let them in, and they and I stood by the window looking at the fire; while there, Newfield said to Joseph—“ How would wadding burn ? Suppose my factory got on fire, how would it burn?” Joseph said, “ Why do you ask me ? Do you want to set your factory on fire?” Newfield said “There were so many fires now that it was very dangerous, and after a while he would see how things would be, ” Joseph said New-field had had several before. I asked Joseph why he asked that question of Mr. Newfield, and he replied, that he asked it because Newfield had several fires in his place before. Before that fire, I knew Mr. Newfield well; he told me he wanted to dispose of his factory, but could not; he said he offered it to his foreman, but the foreman would not take it. I have known Mr. Newfield for two and one half years in New York ; never did business with him ; he owes me nothing, and I have no ill feeling towards him ; that is all I know about the matter.
    Hayman Copperman.
    Sworn to before me, this 7th day of June, 1871,
    P. Ready, Police Fire Marshal.

      That defendant intended by said oath or deposition to maliciously and falsely charge that the plaintiff had willfully set fire to his property, with intent to defraud the insurance companies who had made insurance ; that “in consequence ” of said deposition the plaintiff “ had been summoned before said fire marshal, and on examination had before him said charge was by said lire marshal, who had jurisdiction in the premises, duly dismissed as unfounded and made without any reasonable or probable cause, to the damage of the plaintiff.”
    The answer was a general denial, and as a distinct defense, that the defendant appeared before the fire marshal in obedience to a subpoena, theretofore duly issued by the fire marshal, and which was served upon defendant; that thereupon said defendant was examined under oath by the fire marshal touching said tire, who took down defendant’s answers in writing, which writing defendant believed to be the deposition set out in said complaint.
    On the trial, it appeared by plaintiff’s case, that the defendant had been called to the office of the fire marshal by a communication addressed to him and signed by the fire marshal. When he called, the fire marshal showed him the deposition set out in complaint. Thereafter the fire marshal made investigation into the cause of the fire that destroyed plaintiff’s property. The fire marshal said charges had been made against the plaintiff for the fire. After an examination of the plaintiff, no further legal proceedings were taken against him.
    The fire marshal was called as a witness, and proved that the investigation was founded upon information, received by him from one Davies ; that thereupon he caused a subpoena to be served upon the defendant, who appeared under it, and upon request stated the matter set out in the deposition, which was reduced to writing by the fire marshal and signed by the defendant.

      The plaintiff testified that the matters stated in the depositions weré untrue. The defendant and Joseph, named in the deposition, swore that they were true.
    The judge on the trial held that there was no cause of action for malicious prosecution shown, but the plaintiff might recover as for libel, provided the jury should find the evidence sustained it. He therefore sent the case to the jury as one of libel, and the jury found for plaintiff.
    Upon a motion for new trial the judge considered that the defendant was not liable as for libel, inasmuch as it consisted of his testimony as a witness in a judicial proceeding as to matters pertinent to the inquiry, and granted a new trial.

      Lewis B. Sanders, for plaintiff.

      James C. Spencer, for defendant.
   By the Court.—Sedgwick, J.

On the allegations of the complaint, and the testimony of the fire marshal, as to which there was no contradiction, it appeared he had competent jurisdiction to examine witnesses in the investigation pending before him ; that the defendant did not set on foot that investigation, but simply gave testimony in answer to questions of the fire marshal, after a subpoena had been served. The matters stated were relevant and material to the subject matter of the inquiry. I therefore think that the learned judge was right in holding that no action will lie upon the falsity of the evidence. The cases cited fully support the position (Perkins v. Mitchell, 31 Barb. 461; Marsh v. Ellsworth, 50 N. Y. 309 ; Gan v. Selden, 4 Id. 91).

If the matter of the alleged libel were irrelevant and immaterial to the charge of arson against the plaintiff, then clearly it was not a libel. There is no charge of crime and no tendency to convince any one that a crime was committed.

I am further of opinion, that if the contents of the deposition are libelous, being statements of some matters of remote circumstantial evidence, and if the signing, at the request of a judicial officer, is such a writing that the oral slander becomes a libel, and if the communication to the public officer, is a publication technically (as to which questions no decision is meant to be intimated), still, so far as the case for the plaintiff went, the deposition was the complaint or the foundation of the charge, and the damage arising from it to the plaintiff was only its tendency to set upon foot and establish a groundless prosecution. There was no proof of a general publication, or a publication beyond its being made before a judicial officer, and its being shown to the plaintiff himself (Lyle v. Classon, 1 Caines, 580; Waistel v. Holman, 2 Hall, 173 ; Snyder v. Andrews, 6 Barb. 43). In such cases, I understand the law to be (Howard v. Thompson, 21 Wend. 319), that plaintiff must show a want of probable cause for the prosecution itself. If there were probable ground for the prosecution, this defendant suffered no damage by the false statement of circumstantial evidence. There would be injuria absque damnum.

For this reason I think, that after it appeared, as it did on the trial, that there was no proof of want of probable cause for the institution of the investigation, the complaint should have been altogether dismissed, and not held as in an action for the libel.

There was no question upon the trial as to whether the libel having been under an oath competently administered its falsity could have been established by a less quantv/tn of evidence than would have been necessary to prove the defendant guilty-of perjury under an indictment.

The order granting a new trial should be affirmed, and the judgment on the verdict be reversed with costs to the defendant to abide the event.

Curtis, Ch. J., and Speir, J., concurred.


text:
    DAMIAN SILVA, Plaintiff and Respondent, v. THE METROPOLITAN DRUG COMPANY, Defendant and Appellant.
    I. CORPORATIONS.—EVIDENCE.

    1. Officers.—Power of, to bind Company.
    1. Admissions.

      (a.) In the case at bar the issue was whether the clerks of the defendant hád authority to purchase the goods in question on credit. Plaintiff proved' that after a dispute on this question had arisen, the secretary of the company referred him to the president, who, after examination, promised to pay the demand.
    Held,
    evidence as against the corporation that the clerks were authorized to buy on credit.
    3. Ratification.

    Held,
    that the president had power to ratify the acts of the clerks, though originally unauthorized; and that said promise operated as a ratification.
    Held further, that the promise was sufficient to sustain the denial of a motion to dismiss the complaint, and a verdict in favor of plaintiff.
    Before Sedgwick and Speir, JJ.

      Decided May 8, 1877.
    Appeal from judgment on verdict of jury for plaintiff.

      George R. Carrington, for appellants.

      Abraham Hirshfield, for respondent.
   By the Court.—Sedgwick, J.

The action was for goods sold and delivered to defendants. They were bought by clerks of defendant on account of the latter, and on credit. Part of them were delivered by plaintiff at the store of defendant, and the rest was seen by plaintiff, in the show case of defendant. The defendant gave evidence "to show that on all occasions, when the clerks were sent for the goods, they were directed to buy for ready money, and it was furnished to them. This testimony was given by the secretary of defendant, who also "said that he had sole charge of purchasing for the defendant. A motion was made to dismiss the complaint, on the ground, that by the uncontradicted evidence it appeared'that the clerks had no authority to buy on credit. The motion was denied, and exceptions taken. The decision of the court was sustained, if not by the general facts, at least by plaintiff’s testimony, that after a dispute had arisen as to the purchases on credit having been authorized by defendant, the secretary of the company, when tlie claim was presented by plaintiff, referred him to the president, and the latter, after examination, promised to pay the demand. The president had power to ratify the acts of the clerks as the company’s agents, if the promise made by him did not give plaintiff a cause of action. The promise was not only an admission as to past facts, but was an act done, a promise made within the scope of the officer’s agency. The questions of fact in the case were submitted to the jury in a proper manner.

The judgment should be affirmed, and also the order denying a motion for new trial, with costs.'

Speir, J., concurred.


text:
    GEORGE P. LAWRENCE and JOHN C. GILES, Plaintiffs, v. MARTIN GALLAGHER and DANIEL LANE, Defendants.
    I- BBOJTWB—FOB THE SALE OB PUBOBASE OF PEBSONAL PBOPEBTT.

    1. Authority to bind his principal by a written contract, IMPLIED FROM HIS EMPLOYMENT TO SELL OR BUY.
    1. Only where he effects a sale or purchase pursuant to the oral instructions of his principal.

      (a.) It Results,
    1. That he cannot, by writing, bind his principal to any contract other than such as he was employed to make.
    2. That if he simply brings the parties together, and they make the agreement themselves, he has no implied authority to make a written contract, binding on them or either of them, although he was present and took part in the bargaining.
    2. Authority may be otherwise conferred.
    1. If he, having brought the parties together and they having themselves made the agreement, proceeds to reduce the agreement to writing, with their knowledge and assent, an authority so to do would be implied.

      (a.) The mere act of writing in the presence of the parties would not show knowledge on their part ; but is one fact to be considered in connection with others.
    2. In determining what authority was thus conferred, the facts, which would justify the jury in thinking that a bought note, made by the broker, was so made with the knowledge and assent of the purchaser, should be considered in determining whether it was not a part of the understanding of the parties under which the bought note was made, that the broker should also make a sold note which should bind the seller.

      (a.) If it was the understanding that such sold note was also to he made, then, unless it was so made, there is no consideration far a bought note made by the broleer.

      3. Bought note, . stating that the buyer is to but.—Effect OF ACCEPTANCE OF BY BUYER.
    1. Not conclusive that seller has promised to sell.

      (a.) It is only one fact to be considered.
    H. FRUIT.

      1. Sale of cargo to arrive.
    1. No reason for applying thereto any other rule of law than is applied to a sale of a cargo of iron or grain.

      (a.) An undivided interest may be sold, and delivered either by a fair division or the delivery of a bill of sale to pass the title in prmenti.

      HI.—CONTRACT—EXTRINSIC PROOF AS TO EFFECT OF, AND MEANING- OF EXPRESSIONS USED THEREIN.

    1. Usage to vary, inadmissible—when.
    1. Where the contract, by unambiguous terms, is in a certain event to clothe one of the parties thereto with the rights of an owner of certain property, the subject of the contract, a usage which would annul such right is inadmisssible.
    3. Indefinite expressions used in.
    1. Evidence is admissible to show the sense in which they were used by the parties ; and under a proper state of evidence it becomes a question of fact for the jury to determine in what sense they were used by the parties.
    3. “Usual terms”—“Usual contract.”
    1. An expression in a contract of sale and purchase of articles (otherwise clearly expressed), that the same is made ‘ ‘ on the usual terms ” or “ by the usual contract, ” is indefinite and uncertain. It may refer
    1. To the terms on which payment and delivery are to be made ; or,
    3. That the interests of the various co-owners of the property should be settled as they were usually in the trade.

      Therefore evidence is admissible to show in what sense the pa/rties used the expression.

    («.) Facts necessary to be established to
    PERMIT A JURY TO FIND AS AGAINST A DEFENDANT THAT THE EXPRESSION WAS USED IN THE LATTER SENSE.
    1. That there was a practice in the trade respecting the settlement of the interest of the various co-owners of the article which is the subject of the contract.

      This practice need not amount to a legal custom or usage.
    3. That the defendant knew what the practice was.
    3. That the defendant meant to refer to the practice by the general words used.
    IV. PROMISE TO PAY MADE SUBSEQUENT TO TEE ACCRUING OP TEE ALLEGED LIABILITY.

      1. Effect of.
    1. Contract void by statute of frauds.—Such promise will not make the defendants liable upon such a contract.
    But
    when there is an issue as to the authority of a bi'olcer to make a binding written contract, to wit, a bought note on behalf of the promisor, and there is some evidence tending to show that the promisor knew that the broker had assumed to make such bought note on his behalf, and assented thereto, the promise is relevant testimony on the question of authority to make a bought note in conformity with the terms of the purchase. But, semble, not to include therein other terms.
    3. Indefinite expressions in a contract.

    (a.) Where a bill is presented to a party to a contract showing a liability thereunder, which could only be arrived at by reading an indefinite expression in the contract in a particular sense, and he promises to pay, except as to apart, his non-liability for which he places on a ground growing out of and depending on that construction of the contract upon which the bill presented to him was made out, such promise is relevant evidence to the fact that the promisor at the time of making the contract knew what the expression referred to, and that it was used in the sense attached to it by the party making out the bill, and that he, the promisor, intended it to be used in that sense.
    V. PARTIES.

    1. Defendants, joinder of.

      (a.) When a party sells to B 1-8 and to C 1-8 of certain personal property, to arrive, B agreeing to purchase the 1-8 and 0 the 1-8 ; the terms of the contract being, that the property on arrival should be entirely under the control of the seller, and be sold at auction or private sale, at his option, and the profits or loss resulting from such sale should be due and payable on rendering of accounts ; and a broker acting for both purchasers makes a single bought note, containing above terms of purchase, the seller may Tyring, a separate action against each purchaser far his share of the loss. There is no such joint interest as requires their joinder as defendants.

    Before Curtis, Ch. J., Sedgwick and Speir, JJ.

      Decided May 8, 1877.
    Exceptions ordered to be heard in first instance at general term, after dismissal of complaint.
    The complaint averred, that the defendants bought of the plaintiffs one-eighth undivided share of, or interest in, cargoes of fruit, on board of vessels called Unione and Alaska, then at sea, for a price agreed upon; that, at the time of the sale, it was agreed that the fruit on arrival, should be entirely under the control of the plaintiffs and be sold by them, at public auction or private sale, at their option, and one-eighth of the profits should be paid to defendants and one-eighth of the loss paid by them; that the cargoes arrived and were sold at public auction to the highest bidders ; that the sale resulted in a loss, and that accounts of the same were made and presented to defendants; that one-eighth of the loss was §1,456, which was demanded of defendants, but which they refused to pay.
    Answer admitted the presentation of account stated in complaint, but otherwise.denied complaint generally; and as a separate defense alleged that there was defect of parties, and that Arthur Pendleton and Charles H. Pendleton should have been made defendants.
    On the trial, one Brandigee swore that he was a fruit broker ; that the defendants asked him to buy an interest in the cargo of the two vessels, for them ; that one Pendleton asked him to buy another interest; that he went to the plaintiffs and bargained for them, but there was no agreement, as to the price ; that after-wards one of the defendants, viz: Gallagher, Pendleton, and one of the plaintiffs, viz: Giles, met Brandigee at the office of the last, and they then talked of the-price and it was agreed upon. Proof was given, tending to show that Brandigee acted as broker also for the plaintiffs ; they paid him a commission afterwards.. There was testimony that at the last interview it was stated orally between the parties that the sale was to-be on the usual terms. Without specific authority thereto, the broker, after the oral arrangement, began to write a paper. Mo witness made it clear that the-defendants were present during the writing and signing of the paper, but the broker said they were present at the beginning of the writing. The paper was as follows :
    “Mew York, May 18, 1874.
    “Bought of Lawrence, Giles & Co.
    “for Gallagher & Lane, and A. Pendleton & Son,, each one-half of one-quarter interest in the cargoes of' fruit, to arrive by the Unione and Alaska from Messina, viz:—
    (2.000) Two thousand boxes lemons ) per “ Unione,” (2.000) Two thousand do. oranges ) Api. 1.
    (3.000) Three thousand do. oranges ) per “Alaska,”' (1,800) Eighteen hundred do. lemons f Apl. 4.
    at $6.00 per box for oranges and $6.25 per do. for lemons.
    "The said fruit on arrival.to be entirely under the control and management of the sellers, and to be sold at auction or private sale, at their option, and the profits- or loss resulting from such sales are to be due and payable on rendering of accounts.
    “Brandigee & Thorne,
    “ Brokers.”'
    The cargoes arrived, were sold at public- auction,., under the direction of the plaintiffs. There was a loss.. Accounts of the sale were made and sent to the defendants. A bill for one-eiglith of the loss was presented to the defendants, and one of them said “that he would pay all the losses for the cargo of the Unioue and Alaska, with the exception of that occurring by the failure McNeil Brothers ; “that he would not pay that, that he would go to law first,” and the same promise was made on another occasion. Proof was given tending to show, that in the fruit trade, sales of cargoes "of fruit at sea, were always made to be closed and settled in the manner indicated by the paper signed by the broker.
    The court dismissed the complaint, on the ground that no cause of action was shown, and the exception to this was directed to be heard in the first instance at general term ; judgment stayed.

      Nathaniel & Marston Niles, attorneys, and Wm. W. Niles, of counsel, for plaintiff, urged:
    I. An oral agreement is all sufficient, for it is not a sale of “any goods” but of an interest in a venture (Coleman v. Eyre, 47 N. Y. 38).
    II. Even if it were not, the statute was, in this case, complied with. The memorandum needs only to be subscribed by the party to be bound (3 R. S. [5th Ed.) 222, § 3). It may be signed by his agent (Id. § 8 ; Seabright v. Archibald, 20 L. J. Q. B. 529).

    III. The memorandum may be made by the agent of the party charged, and it is equally binding as if .written by defendant’s own hand (Merrith v. Closson, 12 Johns. 102.
    IV. Where a broker has authority from both parties (as in this case), a memorandum signed in his own name, is sufficient to bind both parties (Sale v. Darragh, 2 Hill, 184). And the authority need not, in either case, be in writing (Champlin v. Parish, 11 Paige, 405 ; Lawrence v. Taylor, 5 Hill, 107).

      D. G. Wild, attorney, and Sidney S. Harris, of counsel, for defendants, among other things urged:
    I. The contract for the sale of 1-8 of the cargoes to defendants “to arrive” was executory, and as there is no evidence of delivery, or offer to deliver, no title passed to the defendants (Shields v. Pettee, 2 Sandf. 262 ; Benedict v. Field, 16 N. Y. 597; Refiners v. Ridner, 2 Robt. 11; Parsons Mercantile Law, p. 49) ; and there was no receipt or acceptance by defendants (Shindler v. Houston, 1 Comst. 261; Rappleye v. Adee, 65 Barb. 589).
    II. There is no memorandum in writing of sale, signed by the defendants or their lawfully authorized agents, nor delivery of any portion of the cargoes, nor payment of any part of the purchase money, and the sale is void (2 R. S. p. 136, § 3). Brandigee had no authority from defendants to purchase the interests in the cargoes, on the terms finally agreed upon by Giles and Gallagher, and therefore had no authority to sign any contract of purchase (Aquirre v. Allen, 10 Barb. 74 ; affirmed in 3 Selden, 543; Allen v. Aquirre, 5 N. Y. Leg. Obs. 380 ; Davis v. Shields, 26 Wend. 364).
    2. There was no note made by Brandigee and delivered to defendants ; a buyer’s note was sent by Brandigee to the plaintiffs, but neither a seller’s note or a copy of the buyer’s note was ever delivered to the defendants ; the defendants are not bound by the note delivered to the plaintiffs (Seivewright v. Archibald, 19 Queen’s Bench, 115 ; Benjamin on Sales, § 294).

      (a.) Defendants did not know that such a note had been made and delivered to plaintiffs.

      (b.) The notes delivered to the parties are to inform them what the broker has done for each party, and unless a note is delivered to each party, or both parties assent to one note as the written contract of the parties, there is no contract in writing binding upon the buyer (Seivewright v. Archibald, 17 Queen’s Bench,
      115; Benjamin on Sales, § 290, where all the English cases are discussed). The case of Seivewright v. Archibald, supra, decides that a note delivered to seller alone does not constitute a contract. There must be both sellers’ and buyers’ notes to bind the party to be charged.
    (c.) So much of the note delivered to plaintiffs as relates to payment of any losses by defendants was inserted without authority of defendants, and the entire note is invalid (Davis v. Sheilds, 26 Wend. 341).
    III. But there was no proof even that the defendants agreed to purchase 1-8 of the cargoes on the terms that plaintiffs should retain control of the cargoes, that there should be no delivery; that they would sell the cargoes at public or private sale as they deemed best, and that the profits or losses should be shared pro rata. The most that plaintiffs testify to is, that the sale was on the usual cerras ; but it is not proved that the defendants knew what such terms were, or that they understood the usual terms of sale, to be the same terms that plaintiffs testified to. The plaintiffs resorted to evidence of usage or custom, as proof of what the usual terms of sale were in such cases. This evidence is incompetent, as well as insufficient tó make out a contract, for reasons stated in the next point.
    IV. As to the usage relied on by the plaintiffs—(1) A usage among particular persons in the city of New York is void, not being general (Higgins v. Moore, 34 N. Y. 415 ; Wadsworth v. Allcott, 2 Selden, 71; Markham v. Jaudon, 41 N. Y. 245).
    (3.) The usage must be known to the defendants. There is no evidence on this point (Walls v. Bailey, 49 N. Y. 477).
    (3.) It must be reasonable and certain—this usage is unreasonable, as it changes the rights of the vendors and vendees.
    (4.) It must not contradict or vary established rules of law. The usage in question dispenses with delivery of the 1-8 of the cargoes, and is illegal (Hone v. Mutual Ins. Co., 1 Sandford, 137; Suydam v. Clark, 2 Sandford, 133 ; Beirne v. Dord, 1 Selden, 102).
    (6.) The usage is illegal, being in direct contravention of the statute forbidding gambling, &c. (1 R. S. p. 662, § 8). This usage binds parties to a speculation in the mere profits and losses on the sale of cargoes to arrive. This is a gambling contract or usage, and is unlawful (Cassard v. Hinman, 1 Bosw. 207).
    (7.) The usage dispenses with the requirements of the statute of frauds, and is illegal. The usage does not require delivery of any part of the cargoes nor payment of any portion of the purchase money, and dispenses with any written memorandum as required by the statute. The usage is a repeal of the statute in this case (Lester v. Jewett, 12 Barb. 502).
    (8.) The legal effect of the agreement made by the parties in this case was to sell 1-8 of the cargoes to defendants, and make delivery as required by law, and a custom to the contrary is incompetent (Groat v. Gile 51 N. Y. 439 ; Bradley v. Wheeler, 44 N. Y. 500-504 , Higgins v. Moore, 34 N. Y. 422-425 ; Wheeler v. Newbould, 16 N. Y. at pp. 401-402 : Allen v. Dykers, 3 Hill, 593).
    V. The complaint, if to recover 1-8 of the losses, was properly dismissed. This action cannot be turned into a suit in equity for an accounting between the parties as to the profits and losses. Such an accounting would require an examination of all the sales, the receipts therefor and expenses, and the amount due to or from each party to the other.
    All part owners, whether joint owners, tenants in common, or partners in the cargoes, must be before the court, for the purpose of an accounting and settlement between all the parties interested in the cargoes (Willard's Eq. Jur. 104, 506 ; 1 Story Eq. Jur. § 466 [§ 451]; Story Eq. Pl. §§ 166-168 ; 1 Daniels Ch. Pr. p. 277 [note]; Donnell v. Walsh, 6 Bos. 621, 626 ; Parsons on Maritime Law, p. 103 ; 13 Abb. 563). The same principle applies where several persons are affected by a common burden for the purpose of contribution (Story Eq. Pl. § 162).
   By the Court.—Sedgwick, J.

There is no doubt that a broker, employed orally to sell or to buy, receives thereby implied authority to bind his employer, by making a written contract, of the kind designated by the employment. If the broker have received similar authority from the other party he may make the written contract for both (Story on Agency, §§ 28, 58, 60 ; Smith’s Merc. Law, 3 Am. Ed. p. 620 ; Hadoch Stow, 40 N. Y. 368; Bush v. Cole, 28 N. Y., 269 ; Pringle v. Spaulding, 53 Barb. 21; Dyken Townsend, 24 N. Y. 59. In Hadoch v. Stow Judge Hunt said that Coleman v. Carrigues, 18 Barb. 60, was not well decided).

In this case, however,, the broker’s power to make the written contract could not depend upon any previous employment to buy for the defendants. At the first the defendants Jiad employed the broker to buy, at a named price. If, under that employment, he had bought at that price, he might have made a written contract on those terms. He did not buy at that price; and to give him fresh implied authority there must be a new employment. The testimony does not show any other employment to make a contract.' After the broker failed to buy he brought the parties together. They made the agreement. He was present and took part in the bargaining, but he did not make the oral contract. Even if the principals were present, it is possible that he might have received authority to conclude the contract for them, but as a fact, in this case he was not so authorized. What the parties did they did for themselves, and the presence of a broker does not delegate a power to Mm. If, without previous authority, he wrote in their presence a contract, it is a question of fact as to whether the parties knew what he was doing and assented to his doing it. The mere act of writing would not show the knowledge, but the jury should consider it in connection with the other facts of the case. If the parties on either side did not know what the broker was writing they were not bound by his individual and unauthorized act. They had a legal right to make a verbal agreement by which they should be only morally bound. The broker could not subject them to legal liability against their will.

If, indeed, the facts would justify the jury to think that the brokers wrote the contract with the knowledge and assent of the defendants, the same facts should be considered in determining, if it were not also to be inferred, that the broker was also to write a contract, which should bind the plaintiffs. If, by the understanding of the parties, he was to do that, then a sold note to be made by him would be the consideration intended by the parties to bind the defendants upon the bought note. For, although an oral promise to sell, invalid in law, is enough consideration to support the written promise to buy, still, if the actual consideration was meant to be a valid promise in writing, it must be proven by the writing (Justice v. Lang, 52 N. Y. 323; 42 N. Y. 493); and the acceptance of a contract by the seller which states that the buyer is to buy is not conclusive that the seller has promised to sell. It is only one fact to be considered. I, therefore, think that here there was a question of fact, on which the' plaintiff had a right to go to the jury as to the consideration. There was no conclusive proof that there was an oral promise to sell as the consideration, but it was for the jury to pass upon the point.

Under no circumstances can a broker bind his principal, by a writing, to any other contract, than such as he was employed to make (Bush v. Cole, supra), or in this case any other contract than such as was orally made between the principals (Davis v. Shields, 26 W. 341; Aguine v. Allen, 10 Barb. 74; affirmed 7 N. Y. 543 ; Pitts v. Bechett, 13 M. & W. 751).

There does not seem to be a reason for applying to a sale of a cargo of fruit any other rule of law than is applied to a sale of a cargo of iron or saltpetre or grain, and an undivided interest in any of them can be bought and sold, as can the whole interest. The present contract was executory for the purchase of one-eighth of two cargoes of fruit to arrive. Upon arrival there would have been no difficulty in making the proper delivery, either by a fair division of the fruit, or, if that were impracticable, by a delivery of a bill of sale to pass the title in prcesenti (Story on Sales, § 311, et seq.). The case is only an extreme 'illustration of the inconvenience of a tenancy in common of chattels. Probably it presents no new kind of hazard or doubt (Schouler Per. Pro. 194-203; 1 Add. on Ship. 98).

On the testimony here we may suppose, that the principals made an oral contract to buy and sell the one-eighth interest, and further, as the broker haltingly said, on the usual terms, or by the usual contract. The plaintiff gave evidence to show that the practice of the trade was, that after undivided interests had been sold, of cargo to arrive, upon arrival the seller took and kept possession of it, sold it, and divided the losses or profits. I see no need of ascertaining how far usage, properly so called, considered as a fact, which entered into the contract, can define it. Here the terms of the oral contract, apart from the addition ' of the words “ usual terms,” were unambiguous, and by them the parties meant to buy and sell. Indeed, the claim of plaintiff is based upon the treating the defendants as the owner of one-eighth of the cargoes. The substance of the contract as plaintiffs claim was, that in the manner pointed out by the contract, the sellers as cb-tenants in common were entitled to sell the whole, and to pay themselves the consideration out of the proceeds, if sufficient, and to pay over to defendants, or to charge them in the proper case, but the foundation of all was that by the agreement the defendants were to be the owners of one-eighth of the chattel. In Coleman v. Eyre, 45 N. Y. 38, the contract had no regard to the title of the coffee. It only referred to the profits and losses.

As the contract was in a certain event to clothe the defendants with the rights of owners, a usage which would annul these rights, not being part of the contract (unless adding the words on the usual terms or by the usual contract made it so), cannot vary it.

In Wheeler v. Newbould (16 N. Y. 392), the defendant was pledgee of promissory notes, without special leave to sell at private sale, and it was held that as a mere pledgee had no right by law to do this, a usage in the city, to sell such pledges at private sale, after a demand of payment and notice that it would be sold for the best price, was no part of the contract, as it was in contradiction to its fair and legal import. Markham v. Jaudon (41 N. Y. 235), is a similar case. In Wadsworth v. Allcott (6 N. Y. 71), it was held that a receipt, which by its clear terms created a bailment, could not be shown by usage to import a sale (The Mutual Safety Ins. Co. v. Hone, 2 N. Y. 235). In Dawson v. Kitell (4 Hill, 108), the term “as freight,” Nelson, J., said, might be shown by usage to import a sale, but no such usage was proved. This case cannot be deemed to deny the correctness of the rule laid down in Goodyear v. Ogden (4 Hill, 104), for they were decided by the same court.

The usage in this case would have materially changed the rights of defendants as owners. Their right to an undivided eighth of the fruit, and their right to take possession of it, in cases provided by law, would be changed to giving the plaintiffs an exclusive right to retain the custody of the whole in all cases.

We must now consider what was the effect upon the contract of adding the words “ on the usual terms” or “by the usual contract. ’ ’ The proper application of these words is not clear and certain. They might be used to refer only to a simple contract of sale, and to mean that the terms on which payment and delivery were to be made, were to be the usual terms. They might, also, in view of surrounding circumstances, without violence, mean that the interests of the co-owners should be settled as they were usually in the trade. In what sense they were used or assented to by the defendants was a question of fact for the jury. If in the former, the usage could not vary the contract to deliver and pay, so as to make it a contract under which there wa.s to be no delivery and payment. To permit the jury to find that the words were used in the latter sense, they must first have proof before them that the defendants knew what the practice was and'meant to refer to it by the general words. In the absence of such knowledge there would not be enough to justify the jury in saying that a contract of sale, clearly expressed, was meant to be turned into something else by adding, on the usual terms. If by usual terms, the defendants referred to the practice of which they had knowledge, it is not necessary that the practice should amount to a legal custom or usage (Remsen v. Holland, 59 N. Y. 618). Even if the defendants did have knowledge of the practice, they might have meant simply to purchase, and whether they did so mean was for the jury to say.

I think there was enough to take the case to the jury on the point of the authority of the broker, to make the writing in behalf of the defendants, of the consideration, and of what the oral contract actually was. On all these points, a subsequent promise of the defendants was relevant testimony. After the sale of the cargoes by the plaintiffs, they presented to the defendants a bill charging them with the one-eighth of the loss. The defendants promised to pay it, excepting such part of the loss as came from a sale of part of the cargo to a person alleged not to be of good credit. This promise was evidence of what the parties had theretofore agreed upon. It would not make the defendants liable if the agreement referred to by it was void under the statute of frauds, but it would be of some weight to show that the terms of the oral agreement had referred to the practice of the trade. If it were shown that the defendants knew that the broker had written for them a contract, the promise would ratify his act (Commercial Bank v. Warren, 15 N. Y. 577), and bind them by the terms of it, but only if before the promise it was shown that the defendants knew that the particular terms referred to the practice (Baldwin v. Burow, 47 N. Y. 199).

As to this, the character of the promise was evidence, upon proof that defendants knew that there was a written contract made for them.

I am therefore of the further opinion that the plaintiffs had a right to go to the jury upon the question of ratification. This would not dispense with proof of due consideration.

If the contract between the parties were the writing signed by Brandigee, it could be enforced in an action against the defendant alone. I do not see any joint interest which required the presence of other defendants as co-owners. If they were joined, the issues would be several between them.

On the whole case, I think the exceptions should be sustained and a new trial had, with costs to plaintiffs to abide event.

Curtis, Ch. J., and Speir, J., concurred.


text:
    THE PEOPLE OF THE STATE OF NEW YORK, Plaintiff and Respondent, v. LUCINDA N. STARKWEATHER, Defendant and Appellant.
    I. MUNICIPAL LAW.

    1. CITY OF NEW YORK.
    (a.) Collector of assessments.
    1. Charges of collection,. On what he cannot charge.

    1. Under section 150, article 13 of Ordinances of 1859, giving him commission on assessments paid and on certain unpaid assessments, he can make no charge in respect of
    ASSESSMENTS ASSESSED ON THE CITY.

      (a.) Eh cannot either personally or by virtue of his office do anything beneficial to the city in respect of such assessments.
    (5.) The including under the ordinance of July 18, 1853, in the assessment list, commissions on the amount of the assessment upon the city at the rate fixed by section 150, article 13 of the Ordinance of 1859, does not entitle the collector to receive them.
    («.) Commissioners of estimate and, assessment. Confirmation of reports of, is not an adjudication that the sum contained therein for the expenses of collection is due or payable to the collector. See Res Adjudicata, post.

      (d.) Tax levies. An act authorizing the city to raise funds to pay assessments charged to or assessed upon the city, in which is included a percentage "for the collection thereof, gives the collector no right to the percentage.
    («.) Voluntary payment. A payment by the officers or agents of the city to the collector, not authorized by said ordinance of 1859, does not fall within the principle which prevents the recovery of money volunta/rily paid.

    See Payment, piost.

    II. BES ADJUDICA TA— WE A T IS NO T.

    1. REPORTS OF COMMISSIONERS OF ESTIMATE AND ASSESSMENT, CONFIRMATION OF BY THE COURT.

      (a.) Collector of assessments, effect as to.

      1. Although the reports so confirmed contain a percentage on the amount assessed to the city for the collection thereof, the confirmation thereof is not an adjudication that such percentage is due or payable to the collector.

      1. Is rem. As an adjudication in rem it only adjudges that the percentage is a proper provision to indemnify the city against future contingencies,, and is a provision for the benefit and use of the city only.
    3. In Personam. The collector not being a party nor in privity with a party, cannot take advantage of the adjudication.

      (a.) If in privity, he was so only through his contract with the city, and the judgment could not, as between Mm and the city, enlarge Ms rights beyond those given by the contract.
    III. PAYMENT.

    1. VOLUNTARY.

      {a.) The doctrine that money so paid (there being no mistake of fact or fraud) cannot be recovered back does not apply where money is paid by an officer or agent of a municipal corporation without authority.

    IV. LIMITATIONS—STATUTE OF.

    1. REVIVING CAUSE OP ACTION BARRED, POWER OF LEGISLATURE.

      (a.) The legislature has power to give by statute, a remedy by action for a cause that has been barred by an existing statute.
    3. ACT OF 1875, CHAP. 49 (CALLED PECULATION ACT).

      (a.) Cause of action. This phrase used in the act refers not to the cause of action the city had before the act, hut to that given to the People by the act.

      (b.) Past receipt of money. The cause of action given for the recovery thereof to the People accrued immediately after or upon the passage of the act.
    V. AOT OF 1875, OI1AP. 49..
    1. EFFECT AS AFFECTING COUNTER-CLAIMS AND SET-OFFS.

      (a.) Counter-claims. No claim not affecting the People can be counter-claimed.

      Consequently a claim against the city cannot be.

      (b.) Set-off.
    1. Nor can any matter be considered as a set-off against the recovery of money for the recovery whereof the act gives a right of action to the People.

      Before Curtis, Ch. J., Sedgwick and Speir, JJ.

      Decided May 8, 1877.
    This is an appeal by the defendant from a judgment rendered at a trial term in an action tried by the judge alone without a jury."
    The action was originally against Henry Stark-weather, who died after issue joined and before trial. The suit was revived against his administratrix with the will annexed, on November 23, 1875.
    The action was brought under the statute of 1875, ch. 49, in the name of the People, to recover from Henry Starkweather, who had been collector of assessments in the city of New York, certain moneys alleged to have been paid to him as such collector in excess of his legal fees. The mayor, aldermen and commonalty of the city of New York, under whom he held the office, were also impleaded as defendants, but took no part in the litigation.
    The .defendant, Starkweather, held office as collector of assessments from January 1, 1868, to May 1, 1872. Whan he was appointed, the compensation of the collector was not a salary, but a commission, on the assessment, established by ordinance (§ 150, art. 13, Ordinance 1859). The ordinance was amended in 1858 so as to provide that no moneys should be retained out of the assessments collected, which were to be paid over in gross, but that the collector and deputy collectors should each receive an equal part of two and one-half per cent, on all assessments collected, and of two per cent, on all unpaid items returned to the bureau of arrears, for which two personal demands for payment had been made, such fees to be paid monthly on the requisition of the street commissioner, &c.
    The commissions for which this action was brought were paid upon bills duly rendered, and upon the requisition of the proper officers.

      The ground of plaintiff’s claim is, that the fees sued for were received without right, and that they were computed upon that portion of “the total amount” of the assessment which the reports, in the several cases of street openings in which the question was involved, charged upon the mayor, aldermen and commonalty.
    Defendant, besides claiming that these charges were “items of assessment” within the meaning of the ordinance, raised the following points of defense:

      First. That these collectors’ fees were inserted in the reports of the commissioners of estimate and assessment in the street-opening proceedings, as a charge upon the lands benefited, and had been -thus collected from the property, and that the reports having been confirmed by the court, there had been a quasi judicial adjudication of the question.

      Second. That by the operation of certain acts known as tax levies the collector was entitled to retain the fees claimed. ■

      Third. That as to a part of the plaintiff’s claim, it , was barred by the six years statute of limitation.
    * Fourth. By way of counter-claim or set-off it was set up that the city was still indebted to Starkweather and his deputy in certain amount for fees on collections.
    The counter-claim or set-off was overruled, and judgment given for the plaintiff for $192,097.66.
    The defendant Starkweather appealed to the general term.

      Nash & Holt, attorneys, and S. P. Nash, of counsel, for appellant.

      Chas. S. Fairchild, attorney-general, attorney, and of counsel, and Francis C. Barlow, of counsel, for respondents.

       Note.—The points of the respective counsel are too long to report in full, and too elaborate to epitomize with justice to them. They can be found in the volumes of cases kept in the judge’s room, or in the library of the Bar Association.

   By the Court.—Sedgwick, J.

Section 150 of art. 13 of the revised ordinances of 1859 specified the compensation to be paid to the collector and his deputies. They were to receive each as compensation for their services an equal part of 2| per cent, on all items of assessments collected by the bureau during their terms of office, and of 2 per cent, on all unpaid items of assessment returned during their term of office to the bureau of arrears for which two personal demands have been made by the collector or deputy collector on the persons required, by law to pay the same ; no moneys, however, collected on any assessment, shall be retained on account of such fees or compensation, but the amount of fees thereon shall be paid monthly on the requisition of the street commissioner, to the extent of any moneys which may have been collected and paid into the city treasury upon such assessments, &c.

The percentages involved in this action were not upon any moneys which required collection for the city, or payment to it, or indeed, which could be collected by, or paid over by the collector. These were in fact, so far as they were items of assessment, mere charges against the city, of a proportion of the sum found in the assessment proceedings necessary to be paid to persons whose property was taken, with expenses. Before the statutes that directed that the city or county should pay a proportion of this sum, say one-half, this sum was (excepting a small portion of it assessed against the city, on pieces of land it might happen to own, or for one-third of the value of buildings), charged to a variety of persons whose land was benefited by the improvement, and these charges were the items of assessments alluded to in the ordinance for the collection of assessments. These items were owed by third parties, and could be collected and paid over to the city. By virtue of the statutes referred to, after their passage, one-half of the compensation to persons whose property was taken, and of the expenses, or one-half of the items referred to, were charged to the city. As to the half, in the nature of things, it could not be collected. Calling it an assessment does not change its nature. It was but a charge. It was an assessment, because the commissioners had to assess or fix the amount of the charge. On the commissioners fixing it and charging it, the collector could do nothing by virtue of his office or personally that would put the city in possession of the amount of the charge. By law and the practice of the corporation, the city would be reimbursed, for its expending the amount, by the collection of the taxes.

This assessment or charge against the city had no characteristic in common with the sums described in the ordinance, on which there was to be a percentage calculated to ascertain the amount of compensation. It could' not be collected at all, and particularly not in the sense in which items of assessment against private owners could be collected. It could not be considered as paid to the city, through the agency of the office, for at no stage. after it was imposed was its status changed, virtually or substantially, as to the proceedings for the collection of assessments. It was not a collected or paid assessment as contrasted with the unpaid assessment, on which two per cent, was to be calculated, and it never was an unpaid assessment. The compensation for collected assessments was to be calculated upon sums actually paid into the city treasury by the collector. The apparent meaning would not give a percentage on the amount of the charge to the city.

But it is argued that section 150 did not repeal an ordinance of July 18,1853, which provided that the assessors shall, in every assessment list, include an amount equal to two and one half per cent, upon the total amount of such assessment, as compensation to the collector and deputy collector of assessments, and that this implied that they were to get a percentage upon the total amount. Perhaps this ordinance might give rise to a tacit understanding, that such was to be the compensation; but this tacit implication had no existence after there was an express arrangement between ■ the parties, as stated in section 150. That limited the fees, and provided that in certain contingencies the collector was not to have a percentage on the total amount of the assessment. He was not to have fees upon assessments that he did not collect, or upon such as were not twice demanded by him; and the direction to assessors became solely one to indemnify the city with certainty against fees it might have to pay ; and at that time, as comparatively inconsiderable portions of the assessments were paid by the city, the fees would in fact turn out to be, if the collector and deputies performed their duty zealously, about two and one-half per cent, upon the total amount. But it might be, if the collector was not zealous that he would collect and demand nothing from the parties, from whom the city needed the money, and would have no fees as to them. In such case, if the appellant’s position is correct, he would be entitled to a percentage upon amounts assessed to ‘the city, and as to which the collector could not benefit it.

Certainly, the city would not be justified in intentionally getting money to be paid as fees, which were not meant to be so paid it. Doing so, however, could not increase the amount of fees to be properly paid, and an intention to devote the money wholly to fees would not show that it did so in fact, in face of the ordinance that made a different provision.

I do not see that the result would be affected, by deeming that the collector was not bound, in order to earn compensation, to go through the mere form of taking a check from the city authorities and returning it, or if they refused to give the check, making two demands for the money. The question would be at all stages, did he collect, in the sense of the. ordinance ? or did he make the demands meant by it ? If he could do nothing in respect of the money which would assist the city in going into beneficial possession of it, it cannot be said that it was collected by him, or that it was an unpaid assessment returned to the bureau of arrears.

It is further argued that the confirmation of the commissioner’s reports became an adjudication that commissions upon the total amount should be paid as compensation to the collector. There is ho doubt that the confirmation is a final adjudication, as to all matters then judicially determined; but 'there will be no estoppel as to what was not determined, although it may have been incidentally or collaterally presented to the court. The point of importance is that there was a judical confirmation of the report, which states among other things that the commissioners have charged as part of expenses of the improvement certain sums, being the amount of fees for the collection of said assessments. Manifestly it was intended that the city should be paid these sums, through the subsequent proceedings after the report. They were not paid as fees, for the fees were to be earned upon the collection of the assessments. The court could not have said in the proceeding that any part of them belonged to the collector, for there was no issue as to that. It only said that the sum was a proper provision for future contingencies. As to- that, there was a final adjudication. Undoubtedly the court had proven or mentioned before it some standard by which to fix the amount, of the indemnity, but this standard was only a piece of evidence. It was but incidental and collateral to the adjudication, and therefore not a subject of estoppel. What this standard was is not in proof here. It is not inconsistent with the proceeding that it was contemplated only to make the city safe, beyond hazard, and that specific calculations were not relied on. Under all circumstances, it was meant that the city, alone) should have the benefit and use of the sums, and this is the full effect of the adjudication in rem.

If relied upon,' as an adjudication inter partes, the collector was not a party to it, not bound by it, and therefore, cannot take advantage of it. Whatever was the character of the proceeding, the collector could have recovered from the city the amounts due by the ordinance.

The collector, not being a party, could take advantage of the adjudication only as being in privity with the city. He was not, in fact, in privity, because the city was under no obligation to him, or he to it, to have a sum fixed, out of which to pay fees. The supposed privity could only be based upon the contract between them as contained in the ordinance, and his rights under the judgment as a privy thereto could not be enlarged beyond his rights as between himself and the party.

The distinction between Pitman v. The Mayor (3 Hun, 370) and this case, is marked. In the cited cases, the commissioners were parties to the proceeding, adversary, so far as their charges were concerned, to the city and the other parties. Their rights, in presentí, were demanded, contested or capable of being contested and passed upon in taxation and subsequent confirmation, as fully as they could be in an action. Here there was no right of the collector’s demanded.

The fact may be that the city should not have accepted so large a sum for expenses, but it was given to it for its own benefit. The legal rights of the collector are not increased thereby, and morally the amount overcharged should be returned to the parties from whom it was taken (Atlantic Dock Co. v. The Mayor, &c., 53 N. Y. 64).

In my view of the case, these reports cannot be used to modify the unambiguous words of the ordinance. The intent in fact was to refer, so far as they were represented to the court, to an existing contract, which by its terms fixed the fees. It cannot be thought that the reports were meant to be a means of increasing the fees. Moreover, the defendant was not a party to the proceeding, and the contract was not changed by agreeement.

I cannot see that the tax levies (2 Laws of 1868, 2020 and 2 Laws of 1869, 2123) meant to change or to construe the ordinance. They empowered the city to receive funds to pay the assessments and amount charged to it, in certain inporovements, as set forth in the reports of the commissioners, and to pay expenses and assessments already imposed, and amounts charged to or assessed upon the city. These acts do not go farther than enabling the city to pay what it was bound to pay, but did not pass upon what its obligations were, unless (as is claimed) by its reference to the reports as confirmed. At the most, this would be an unnecessary ratification of the reports, and gave no rights beyond the legal effect of the reports, as they have been already considered here. Whatever was to be paid to the collector was by force, not of the reports, but of the ordinance.

As to the position that' the moneys paid cannot be recovered, as they were voluntarily paid upon claims against the city, competently audited by officers having authority to settle and pay, I think that the cases of Board of Supervisors v. Ellis, 59 N. Y. 620, and People v. Fields, 58 Id. 491, show that it is not well taken.

It is urged that the first cause of action is barred by the statute of limitations, because, before the act of 1875 was passed, this cause of action had been barred by the statute ®f limitations then applicable to it. It is not claimed that the legislature has not power to give, by a statute, a remedy by action for a cause that has been barred once. The intent of the act of 1875, to give the people an action for moneys received before the passage of the act, is clear, and for such action, the time of limitation was given in the act. The words “after the cause of action shall accrue” referred, not to the cause of action that the city had before the act, but. to that given to the people in the act. As to past receiving of money, this cause of action accrued immediately after or upon the passage of the act, and the use of the term, “shall accrue,” was accurate as to chronology, because the words of the act must be devised and used for it before it takes effect as law.

The matters set up as a counter-claim cannot be maintained as such, because they do not charge any debt upon the plaintiff. ¡Nor can they be considered as matter of set-off, because the act of 1875 vests the money for which the defendant is responsible and the title to it in the State, and this right cannot be diminished for any purpose. The act had a policy of its own, and intended to coniine the issues to be tried in the actions to be brought under it, to the circumstances attending the alleged unlawful taking of money.

The judgment should be affirmed with costs.

Curtis, Ch. J., and Speir, J., concurred.


text:
    WILLIAM DEMUTH, Plaintiff and Appellant, v. THE AMERICAN INSTITUTE OF THE CITY OF NEW YORK, Defendant and Respondent.
    I. CONTRACT.

    1. Prospectus calling for applications, and applications made pursuant thereto, when they do not constitute a CONTRACT.

      (a.) When the prospectus, and the blank form of application accompanying it contain no promise to grant that which should be applied for; a fortiori, where the nature of the prospectus and blank application is such as to inform the party applicant that the party issuing the prospectus reserves the right to exercise his discretion and judgment as to whether the application should be granted or not.
    1. This although tha party applicant may have gone to expense in and about the carrying into effect his application.
    II. APPLICATION OP. PRINCIPLE.
    1. American Institute of the City of New York.
    («.) This institute, being about to hold a public exhibition, issued a prospectus calling the attention of inventors and manufacturers to it, and setting forth the manifold benefits to be gained by them by a public exhibition of their wares at said exhibition, and distributed the same with a blank form of application for “an allotment of space at the exhibition.” This blank form had among other things the following printed on it: “ Space. The managers do not agree to allot any special amount of room until the articles for which space has been desired are within the building,” Two of these prospectuses and accompanying forms of applications were received by plaintiff, who properly filled out the blanks specifying the amount of space required, signed them and sent them to the defendant with the required entrance fee, and in all other respects complied with the conditions printed on the application forms. Before the opening of the fair, plaintiff sent the wares specified in his application to defendant’s rooms, but defendant refused to receive them for exhibition. After this, defendant sent to plaintiff, by mail, a check for the amount of entrance fee paid by plaintiff, but plaintiff returned the check. The plaintiff incurred expenses in making certain wares attractive and fit- for exhibition. There were empty spaces in the exhibition room in which plaintiff’s wares might have been placed:
    Held,
    that plaintiff had no cause of action against defendant for its refusal to receive his goods for exhibition.
    Before Sedgwick and Speir, JJ.

      Decided May 8, 1877.
    Appeal by plaintiff from judgment entered on dismissal of complaint.
    The complaint averred that the defendant, for the purpose of inducing the plaintiff and others to exhibit their wares at an exhibition about to be opened by the defendant, issued a prospectus, wherein the attention of inventors and manufacturers was called thereto, and the manifold benefits to be gained by them, by a public exhibition of their wares at said exhibition, were set forth ; that, induced by said prospectus, the plaintiff signed an application, the form of which had been sent by the defendant to the plaintiff; and that, pursuant to said application, the defendants entered into a contract with plaintiff, whereby for the sum of $14, then paid by plaintiff to defendant, the defendant agreed to allow plaintiff to exhibit certain described wares at the exhibition of the defendants, to be held, and also agreed to furnish plaintiff a certain portion of space for the exhibition of his wares, and to furnish tables on which to place his show cases, and to give plaintiff an exhibition ticket; that the plaintiff prepared certain of his wares for the exhibition, in accordance with his application, at great cost, and duly offered them to defendant for exhibition, but the defendant, rejected and refused to receive the same, to the great damage. &c.

      The answer contained a denial of the material allegations of the domplaint.
    On the trial, it was shown that the plaintiff received the prospectus specified in the complaint, which for the purposes of the trial seems to have been admitted to have been issued by the defendants.
    The plaintiff thereupon sent to the defendant an application (or two, the evidence does not distinctly show which) filled up and signed by him, stating particulars, most of which are unimportant to this appeal. The space asked for was about thirty feet by six feet. The application was accompanied by the check of plaintiff for $14. The defendant received both.
    The form of the application was as follows:
    To the Managers of the 43rd National Exhibition of the American Institute, 1874.
    Application is hereby made for an allotment of space at the Exhibition for the following

      The above described has been before exhibited.
    I hereby apply for above, as specified, subject to the rules and conditions on the other side of this application, all of which I accept.
    [Signed]
    EiF” The applicant will please fill up the above blanks, and forward to “ General Superintendent, American Institute, Hew York.”
    CONDITIONS UPON WHICH THIS APPLICATION IS EFFECTED.
    [Here follow conditions which need not be set out.]
    The plaintiff thereupon went to expense, that would not have been incurred by him, in the usual management of his business, to make certain wares attractive and fit- for exhibition. About, but before the opening of the fair, he sent these wares to the rooms of the defendants, but they refused to receive them for exhibition. A clerk of theirs gave as a reason that there was no room for them. After the fair opened, it was proved that there were empty spaces in the exhibition rooms in which plaintiffs wares might have been placed. The defendants sent to plaintiff a check for §14, but it was returned to defendants.
    The plaintiff offered testimony as to damage. It is unnecessary to state the particular offers, for at the end of the case the judge dismissed the complaint, deciding that there was no contract, on which defendants were liable. Exception was taken.
    Judgment was entered on the dismissal, and this appeal is from that judgment.

      Sigismund Kaufmann, attorney, and Lewis B. Sanders, of counsel, for appellant.

      Alfred T. Ackert, attorney, and Malcolm Campbell, of counsel, for respondent.
   By the Court.—Sedgwick, J.

The plaintiff cannot recover, without showing that the defendants agreed to give him some space in their exhibition rooms, wherein to show his wares. There must be proof as to the quantity of space agreed upon. The size of the space is an essential term of the contract, and if there were no common assent tp that, there is in fact no contract, or it may be said, that if it be conceded there was a contract, its uncertainty as to what the defendants were to give the plaintiff, makes it incapable of enforcement (Brown v. N. Y. Central R. R., 44 N. Y. 79; Foot v. Webb, 59 Barb. 39; 2 Parsons on Contracts, 5th ed. note e to p. 557).

In the view we take of the case, it is unnecessary to look generally for a consideration, or to inquire in particular whether there was any implied request that the plaintiff should fit his wares for exhibition, the defendant promising that if he did so, space would be given, unless the articles offered were not suitable for a fair of the kind. There certainly was no independent request that the defendant should go to expense.

The prospectus of the defendant, inclosing, it is probable, the blanks for applications to be filled in and signed by. manufacturers and others, did not promise to give the spaces to be specified by the applicants. There was no proof that after the plaintiff’s application was sent in, the defendant ever did or said anything which was a promise to give the space the plaintiff stated in the application that he called for. On the contrary, there was, on the plaintiff’s construction of the evidence, a refusal to give any space. On the margin- of the blank which was filled up, the following was printed: “ Space. The managers do not agree to allot any special amount of room, until the articles for which space has been desired', are within the building.” That meant no more than that there was no particular quantity of space agreed upon then, or to be agreed upon at all, until the articles were within the building. If this was an agreement at all, it was, in the language quoted by Brown v. New York Central R. R. Co. “an agreement to enter into an agreement upon terms to be afterwards settled between the parties,” and this was said to be a contradiction in terms.

This statement upon the blank was a notice, that in the discretion of the managers, a part of the articles might not go into the exhibition, and that the space allotted might be so small that the applicant would not wish to exhibit anything, and the applicant could not have thought that the defendant requested him to go, to expense, on its account, in such a contingency.

It is clear that the making of the agreement, as to space, was to be postponed until a future time, and the proof shows that no agreement was made in the future. There being no agreement, the plaintiff cannot recover damages for being excluded from a space to occupy which he shows no right.

Still further, the plaintiff knew from the terms and conditions printed on the application that the defendant entertained the purpose of admitting articles after the fair was opened, on payment of a certain fee. In the nature of things, as plaintiff knew, the applications for space, before the opening of the fair, might call for a greater area than the defendant’s rooms furnished. At least, the plaintiff’s right, if he had any, was not superior to the defendant’s right to regard all these things, and the exercise of discretion and judgment as to them by defendant was contemplated by the circumstances of the case. Therefore, the mere fact that after the fair was opened, there was empty space, in which the plaintiff’s articles might have been placed, did not show that the defendant did not give to the plaintiff, -all that was held out as an inducement to make an application, namely the exercise of the best judgment of the defendant under the circumstances of the case.

The judgment appealed from should be affirmed, with costs.

Speir, J., concurred.