text:
    HENRY C. PECK, Respondent, v. DORAN & WRIGHT COMPANY (Limited), Appellant.

      Wager cont)'act — evidence as to an oral agreement modifying the written contract • — ■ liability of a corporation for the ultra vires acts of its agent.

    In an action brought to recover, under the statute, for money alleged to have been loaned upon wager contracts made by the plaintiff with the defendant, it appeared that the defendant was a corporation organized to do a general brokerage and commission business in grain and other commodities; that plaintiff gave to the defendant orders to buy wheat, paying various sums as margins, the wheat being usually carried by the defendant until the plaintiff ordered it to be sold. All the contracts were evidenced by formal writings.

      Reid, that the burden was upon the plaintiff to prove that the contracts included an oral one that no grain should be delivered, but that only the differences in the market-prices should be paid or received.
    That the jury were at liberty to find, notwithstanding the writings, that they were wager contracts.
    It was objected that the defendant, being a corporation authorized to do alegitimate business, that its agent could not do an illegitimate business and bind it by his acts in the prosecution of it.

      Reid, that as the defendant had obtained the plaintiff’s money by means of wager contracts, it could not, while retaining the money, disclaim the transaction through which it was obtained.
    Appeal by the defendant from a judgment of the Supreme Court, entered in the office of the clerk of Albany county on the 18th day of October, 1889, in favor of tbe plaintiff, for $3,394.25 ; and from an order entered in said clerk’s office on the 21st day of October, 1889, wbicb denied tbe defendant’s motion to set aside tbe verdict and for a new trial.
    Tbe case was tried at tbe Albany Circuit before tbe court and a jury, at wbicb a verdict was rendered in favor of tbe plaintiff for tbe sum of $3,394.25.
    Tbe action was brought by tbe plaintiff to recover, under tbe statute, tbe money lost by him upon wager contracts with the defendant upon tbe maVket-price of wheat. Tbe defendant was a corporation organized to do a general brokerage and commission business in grain and other commodities. It bad an office in Albany in charge of one Fuller. Plaintiff, at such office, gave to tbe defendant a large number of orders to buy wheat, and paid various sums as margins. Tbe transactions, in form, were contracts whereby tbe defendant bought for tbe plaintiff, as a broker, upon commission, tbe wheat ordered at tbe market-price on tbe day of tbe order; the plaintiff paid tbe defendant various sums as margins; tbe defendant ostensibly carried tbe wheat upon tbe margin until tbe plaintiff ordered it sold, when they accounted with each other upon tbe basis that tbe selling ¡Drice was obtained.

      WilUam JET. Shejpwrcl, for the appellant.

      Eugene Burlmgmne, for tbe respondent.
   Landon, J.:

The dealings between tbe parties were, in form, genuine contracts, evidenced in writing made at tbe time, for tbe purchase and sale by tbe defendant, as a broker, upon margins and for a commission, of wheat at tbe market-prices ruling at tbe time. Tbe losses sustained by tbe plaintiff were apparently caused because be bought wheat at a higher price than that at wbicb be subsequently sold it.

Tbe burden was upon tbe plaintiff to prove that the apparent contracts were not tbe real contracts, and that tbe real understanding between tbe parties was, when tbe contracts were made, that tbe wheat should not be delivered, and that only tbe difference in tbe market-price should be paid or received. In other words, that tbe parties did not deal in wheat, but agreed to gain from or lose to each other as the price varied between the day the purchase was •ordered and the day the sale was ordered. (Kingbsury v. Kirwan, 77 N. Y., 612; Story v. Salomon, 71 id., 420; Bigelow v. Benedict, 70 id., 204.)

The jury have found, upon the evidence, that the plaintiff made good the burden resting upon him. We think the verdict supported by the evidence. True, tlie written contracts were against him, but the statute against wager contracts would be of small value if the truth could not be shown by extrinsic evidence, and it was competent to give such evidence. (Same cases.)

The plaintiff testified that at the commencement of his dealings ■with Fuller, who represented the defendant, and through whom the •same were made, he asked him how the defendants executed their ■orders, and Fuller replied: That “ they assumed their orders and booked them themselves; that they had no wheat to deliver; and didn’t expect their customers to want any wheat; that it was merely to adjust the difference as between the market-price and the ¡Drices marked on the slip ” (contract).

Fuller testified that nothing of the kind was said, and thus it was for the jury to settle the fact. The plaintiff also testified that he did not intend to buy any wheat, but only to deal with respect to its fluctuations in price.

The absence of any testimony that wheat was purchased upon any of the orders and the accounts given of the various transactions tended to indicate that they dealt with reference to the price of wheat, and not in wheat.

The defendant objects that it is a corporation, authorized to do a .legitimate business, and that as it could not lawfully authorize Fuller to do an illegitimate business it cannot be bound by his acts in the prosecution of it; that the attempt to confer such authority would be ult/ra vires, and the attempted ratification of the agent’s acts equally so. The position is untenable. A person equally with a corporation has no lawful power to do wrong, but both have the •capacity to act, and the capacity to act amiss inheres in the capacity to act at all. Given the power and capacity to do right the actor may, nevertheless, do wrong. Unless the actor is wholly irresponsible he must answer for his wrong action, partly in justice to those injured thereby and partly as a deterrent to its like repetition by himself and others. If the agents of a railroad corporation take my timber or iron, against my consent and convert it into a bridge to the use of the corporation, the corporation must either restore my property or pay me for it. Here the defendant corporation has obtained the plaintiffs money, It was obtained by means of wager contracts. Confessing that it has the money, the defendant practically argues that because it could not thus obtain it within its lawful powers, it does not really have it. Pretending to disclaim the transactions by which it obtained the money, it practically argues that its pretended disclaimer gives it title to keep the money. But, in truth, it cannot perfect its disclaimer of the transaction without surrendering its fruits; it cannot retain the money without adopting its agent’s methods of obtaining it; it cannot insist upon a defense so long as it refuses to qualify itself to interpose it. The doctrine of ultra vires is in no wise applicable to the case.

We have examined the various other exceptions to the admission of evidence and to the rulings of the court and find none which require a reversal.

The judgment should be affirmed, with costs.

Learned, P. <L, concurred ; Mayham, J., not acting.

Judgment and order affirmed, with costs.


source: Caselaw Access Project

author: Landon, J.: Learned, P. J.:

license: Public Domain

text:
    THE BERLIN IRON BRIDGE COMPANY v. JOSEPH E. WAGNER, as Sole Commissioner of Highways of the Town of Oswegatchie.

      Town bridge — a town meeting specially called, to consider its construction is a prerequisite to any action by the board of supervisors — note to be by ballot — highway commissioner’s authority.

    A board of supervisors has no jurisdiction, under subdivision 6 of section 1 of chapter 482 of the Laws of 1875, as amended by chapter 451 of the Laws of 1885, to pass a law authorizing a town to borrow money upon its bonds for the purpose of constructing a bridge, and to appoint commissioners to attend to the construction thereof, unless the town meeting, at which such resolution is passed requesting such action upon the part of the board of supervisors, shall be a regular town meeting, or a special town meeting called for the particular purpose, and a special town meeting, called in pursuance of section 7 of article 1 of title 2 of chapter 11 of part 1 of the Revised Statutes, as amended hy chapter 259 of the Laws of 1886, is not called for that particular purpose, and has no-authority to act in the premises.
    The vote upon such a question at the town meeting must, under chapter 122 of the Laws of 1883, be by ballot.
    In the absence of valid action having been taken to place the erection of a town bridge in the hands of other agents, the sole highway commissioner of the town is authorized by law to proceed with its erection in reliance upon there being subsequently raised by tax the amount of an appropriation made therefor, and a contract entered into by him for that purpose is valid.
    Semble, that if the board of supervisors had had authority to act, it would have been authorized to appoint commissioners to build the bridge.
    Submission of a controversy under section 1279 of the Code of' Civil Procedure.
    The following, among other facts, were contained in a statement of facts upon which the said controversy depends:
    I. The plaintiff is a manufacturing corporation, duly incorporated under the laws of the State of Connecticut, extensively engaged in the manufacture of iron bridges in said State of Connecticut, and the erection of the same in the different States of the United. States and in foreign countries.
    II. The defendant is, and for two years. or more last past has-been, sole commissioner of highways of the town of Oswegatchie, one of the towns of St. Lawrence county, in the State of New York.
    III. There is in said town of Oswegatchie a public highway, commonly known as the Eel Weir road; and which said highway is, and has been for more than fifty years last past, one of the main public highways of said town of Oswegatchie, and duly recorded as such.
    IV. That upon said highway, and forming a part of the same within said town, is a bridge crossing the Oswegatchie river, at the Eel Weir rapids, which bridge has for many years been in use as apart of said highway; and the said bridge is one of the highway bridges which said town is by law authorized to erect and maintain.
    V. That before,' and at the time and since, the special town meeting hereinafter referred to, the said bridge has been dangerous and unsafe for public travel, being old and worn out; and during-said time the said bridge has been closed to public travel by said. highway commissioner on account of said dangerous condition, the said highway commissioner having condemned the same.
    YI. That, on the 2d day of November, 1889, in pursuance of section Y, part 1, title 2, article 1, chapter 11 of part 1 of the Revised Statutes, as amended by chapter 259 of the Laws of 1886, a special town meeting was duly held in the town hall, in said town of Oswegatchie, in the city of Ogdensburg, at the time specified in the call for said meeting, to vote upon the question of raising and appropriating $10,000 to maintain the bridge across said Oswegatchie river at said Eel Weir rapids, in said town.
    The following notice of said special town meeting was duly posted by the town clerk of said town as required by law, and said notice was the only notice given of said meeting:
    NOTICE.

      To the Electors of the Town of Oswegatchie. St. Taxorence County, JT Y.:

    A petition, signed by more than twelve electors of the town of Oswegatchie, eligible to the office of supervisor of said town, requesting the town clerk of said town to call a special town meeting of the electors of the town for the purpose of raising and appropriating the necessary money to maintain the bridge across the Oswegatchie river at Eel Weir rapids, in said town, being one of the bridges that said town lias to maintain :
    Now, therefore, I, Nathaniel Wells, as town clerk of the town of Oswegatchie, by virtue of the statutes of the State of New York, :in such' cases made and provided, do hereby call a sy>ecial town meeting of the electors of the town of Oswegatchie, aforesaid, for the purpose of raising and appropriating the necessary money to maintain the bridge across the Oswegatchie river at the Eel Weir .rapids, in said town.
    A resolution will be oflered at said special town meeting to raise a ■sum, not exceeding the sum of $10,000, for that purpose. Said ■special town meeting will be held in the town hall, in the city of ■Ogdensburgh, on Saturday, November 2, 1889. The polls wil] be ■open at one o’clock p. m., and close at four o’clock p. m., of that day.
    Dated October 25. 1889.
    NATHANIEL WELLS,

      Town ■ Cleric of the Town of Oswegatchie.

      YII. That, at said special town meeting, the electors of said, town duly voted by printed ballots to raise and appropriate $10,000-to maintain the bridge across the Oswegatchie river at the Eel Weir-rapids, in said town, the whole number of ballots cast being 155, of which 152 were for appropriating and raising $10,000 for purpose aforesaid, and three ballots were against the same.
    YTTT. At about the time of the opening of said town meeting, at about one o’clock p. m. on said day, a resolution in writing was. offered, of which the following is a copy, except that said resolution contained the names of only three commissioners, some of which, said three were different from any of the names mentioned in said following copy of resolutions. Following is said copy:

      MesoVoed, That we hereby request the supervisor of the town, of Oswegatchie, and the several ward supervisors of the city of Ogdensburg, to secure the passage of an act at the next session, of the board of supervisors of St. Lawrence county, authorizing the-town to borrow money to build a new bridge across the Oswegatchie. river, at the Eel Weir rapids, on the site of the present bridge, and appointing William J. Averell, Daniel Magone, of Ogdensburg,. Fenton Devoy, Henry Lovejoy and Alexander Mayne, of Oswegatchie, commissioners to construct such bridge in such form and. manner as they shall deem for the best interests of the town; and that the order of such commissioners on the supervisor of the town shall be his warrant for disbursements to be made from time to time as may be necessary in payment on accounts of said bridge, not to-exceed the sum of $10,000.
    That said commissioners shall be entitled to three dollars per day for each day actually employed.
    Some discussion at that time occurred, and said resolution was. immediately, at about the time of the offering of the same, as aforesaid, by a vwa vooe vote of those present, laid upon the table.
    The voting by printed ballots, hereinbefore described, began at. about the same time, without reference to said written resolution,, and continued until about the time appointed .for the closing of the polls, as specified in the said notice for said meeting; when all persons desiring to vote by ballot having done so, at about the time of the closing of the polls, and after said voting by ballot had ceased, the resolution, the said copy of which is hereinbefore set out, was offered and voted for and concurred in witli substantial unanimity by viva vooe vote of those present, in number about twenty-five, and that no ballot was cast by any one upon said resolution. The foregoing constituted the proceedings of said special town meeting.
    IX. That, on or about November 21, 1889, at a regular session of the board of supervisors of St. Lawrence county, Samuel II. Palmer, supervisor of the town of Oswegatchie, presented said resolution to said board of supervisors, and the said board of supervisors thereupon proceeded to enact, on said November' twenty-first, an act or bill:
    This act authorized the supervisors of the town to borrow $10,000 and to issue town bonds therefor, and appointed five commissioners for said town to construct the bridge hereinbefore provided for.
    There ivas no other application by the town of Oswegatchie, or its •officers or any of them, to said board of supervisors, for any act or bill with relation to said Eel Weir bridge than said resolution presented by said Palmer, as aforesaid ; and there was no other act, bill or resolution passed by said board of supervisors at said regular .session with regard to said Eel Weir bridge.
    X. The said Eel Weir bridge, at the time of said town meeting, consisted of and has since that time consisted of an old wooden superstructure, worn out and incapable of economical repair, and of a substructure of stone piers and abutments, which at a comparatively small expense could be readily placed in good condition, and the building of new piers and abutments would be an unexcusable and extravagant expenditure of highway moneys.
    XI. That on or about the 29th day of November, 1889, the defendant entered into a written contract with the plaintiff by which the plaintiff, in substance, agreed to furnish and erect for the •defendant the superstructure of said Eel Weir bridge to consist of a wrought-iron, parabolic truss bridge, according to the plans and specifications attached to said contract, and as in said contract provided, for the sum of $9,200 tobe paid by the defendant, and which ■defendant agreed to pay, as follows: * * *
    XII. On the 18th day of February, 1890, at a special session of the board of supervisors of St. Lawrence county, the said board of supervisors passed the following bill, act or resolution : “ An act to repeal an act entitled an act to authorize the town of Oswegatchie to borrow money for the purpose of building a new bridge across the Eel Weir rapids in said town,” etc. * * *
    That after the passage of said last bill, act or resolution, herein-before set out, and on said February 18th, 1890, said board of supervisors at said special session passed the following act, bill or resolution : “ An act to authorize the town of Oswegatchie to borrow money for the purpose of building a new bridge across Eel Weir rapids in the said town on the site of the present bridge, and appointing commissioners to construct the same, pursuant to chapter 482, Laws of 1875, and the several acts supplemental thereto and amendatory thereof.” Passed by the board of supervisors of St. Lawrence county on the 18th day of February, 1890, two-thirds of all the members elected thereto voting in favor thereof.
    The board of supervisors of St. Lawrence county do enact as follows: (This law was substantially the same as the first law.) The said three supervisors’ bills, acts or resolutions of the board of supervisors of St. Lawrence county are all the acts, bills or resolutions passed by said board with regard to said Eel Weir bridge, and the only application made to said board for the passage of any of said acts, bills or resolutions was the presentation of said resolution by said Palmer to said board, as hereinbefore set out.
    XIII. No part of said installment due on said contract has been paid.
    XIY. The commissioners, Daniel Magone, William J. Averell, Henry Lovejoy, Fenton Devoy and Alexander Mayne, are acting, and claim the right under said bills of the board of supervisors to contract for the erection of a new bridge and to supervise the erection of the same across said Oswegatchie river at the Eel Weir rapids in behalf of said town of Oswegatchie.

      A. D. Wales, for the plaintiff.

      George B. Malby, for the defendant.
   Landon, J.:

The special town meeting for the town of Oswegatchie was called and held, and did vote to raise and appropriate $10,000 to maintain the highway bridge across the Oswegatchie river, at the Eel Weir rapids in the said town, in strict pursuance of section 7, article 1, title 2, chapter 11, part 1 of the Revised Statutes, as amended by chapter 259, Laws of 1886. The amended section provides that special town meetings “ shall also be held whenever twelve or more persons eligible to the office of supervisor of the town shall, by application in writing, signed by them, and addressed to the town clerk, require a special town meeting to be called * * * to vote on the question of raising and appropriating moneys for the construction and maintenance of any bridge or bridges which such town may be authorized hy law to erect or maintain.”

Section 8 (1 Revised Statues, m. p. 341), provides for giving the proper notice. The bridge was one which, by law, the town was bound to maintain. It was old and worn out, and had heen condemned by the commissioner of highways as unfit for travel, and the superstructure of a new bridge was necessary. The old piers and abutments were still serviceable. One hundred and fifty-two ballots were cast for raising and appropriating the money, and three against the same.

Assuming that no valid action was taken to place the erection of the bridge in the hands of other agents, then we think the sole commissioner of highways of the town was authorized by law to proceed with its erection upon the credit of the appropriation thus authorized, and in reliance upon the subsequent raising by tax of the amount of the appropriation, or so much thereof as should be necessary to meet the expenses of the erection; such expense to be audited according to law.

The Revised Statutes provide that, The commissioners of highways in the several towns in this State shall have the care and superintendence of the highways and bridges therein ; and it shall he their duty:

“ 1. To give directions for the repairing of the roads and bridges, within their respective towns;
“ 4. To cause the highways and the bridges which are, or may be, erected over streams intersecting highways, to be kept in repair.”

(1 R. S., m. p. 501, § 1.)

The ordinary highway labor due from inhabitants and taxpayers, and the fines and commutations which may he collected, furnish part of the resources which the commissioners of highways must employ as a means to the performance of these duties. It is obvious that these means must often prove inadequate.

Section 4 provided that $250 additional might be raised by tax if the commissioners should require it. The commissioners might apply in open town meeting for $250 more (chap. 274, Laws of 1332); also for $750 more (chap. 615, Laws of 1857); both of these extra sums, if voted, to be for the improvement of roads and bridges.” Chapter 103, Laws of 1858, amended by chapter 442, Laws of 1865, authorized the commissioners of highways, by and with the consent of the board of town auditors, to cause roads and bridges destroyed by the elements or otherwise, after the annual town meeting, to be immediately repaired or rebuilt, although the expense might exceed the sum already authorized by law, the same to be audited and raised by tax. Chapter 377, Laws of 1878, amended by chapter 67, Laws of 1879, requires that “ all moneys raised and collected upon the taxable property of any of the towns of this State for highway and bridge purposes, shall be paid over by town collectors of taxes to, the commissioners of highways of the towns in which the moneys are so raised and collected, and to no other officer or person whatsoever,” permitting, however, the boards of supervisors to make the disposition provided for in chapter 855, Laws of 1869, a statute, as it will be seen hereafter, under which the board of supervisors have not acted in this case.

The act of 1878 makes it the duty of the commissioners of highways to expend all such moneys upon the highways and bridges. The appropriation voted at the special town meeting became a town charge. (1 R. S., 358, m. p., § 2.) The commissioners of highways must render an account in writing to the board of town auditors of all the moneys paid out by them, with the vouchers thereof, and also an account of the improvements made upon the roads and bridges. (1 R. S., m. p. 502, § 3, amended by chap. 396, Laws of 1884.) It will thus be seen that the commissioners of highways are charged with the care, superintendence, repairs and improvements of highways and bridges within their respective towns, and with the custody and disbursement, for the purpose, of whatever money is provided for the same. No other officers are, by State enactment, in like manner charged with-respect to bridges within the town. It seems irresistibly to follow that, in the absence of any other valid provision for the erection of this bridge, the commissioner of highways was charged with the power and duty to erect it.

Oases are cited by the commissioner tending to show various limitations of Ms power. Of course, he has no power except that conferred by statute, either expressly or by fair implication. And his power is strictly limited within his means. He can only obtain the means permitted by the several statutes. His power, duty and liability are all measured by what he- may do, and ought to do, within the means at his disposal. Given the means he could build this bridge and ought to build it. (Mather v. Crawford, 36 Barb., 564; Huggans v. Riley, 21 State Rep., 706; People v. Meach, 14 Abb. [N. S.] 429.)

He would, therefore, have the power to employ agents or servants to prosecute the work and to procure the necessary materials. This involved the power to make appropriate contracts for the same. (Boots v. Washburn, 79 N. Y., 207.) His contract with the plaintiff was within his powers, unless the facts next to be noticed took the power from the commissioner and lodged it elsewhere.

At the opening of the special town meeting above mentioned a resolution was offered to the effect that application be made to the board of supervisors of the county of St. Lawrence, at the next session, to authorize the town of Oswegatchie to borrow money to build tne bridge, and for the appointment of commissioners to build it. The resolution, after some discussion, was laid upon the table by a viva voce vote of the electors present, and the voting by ballot upon the resolution to raise and appropriate money proceeded until about the time appointed for closing the polls, and until such voting by ballot ceased, when the resolution for the aforesaid application to the board of supervisors was again offered and concurred in with substantial unanimity by a viva voce vote of those present, about twenty-five in number.

At the next session of the board of supervisors an application was made in pursuance of such resolution, and the board of supervisors, in compliance therewith, on the 21st day of November, 1889, passed a law authorizing the town to borrow $10,000 upon its bonds, and appointing five commissioners to construct the bridge, prescribing details. On the 18th day of February, 1890, the board of supervisors repealed the said law and passed another in place thereof. The second law was, in intent and scope, like the first, and was passed to obviate or cure supposed defects or illegalities in the first. The details of this law need not be given. ¥e assume that in every respect it is valid and transfers the power to erect the bridge from the commissioner of highways to the commissioners named in the law, provided the board of supervisors had jurisdiction to enact it. Between the passage of the first and second law the plaintiff and defendant entered into a contract, whereby the plaintiff agreed to erect the bridge for the price of $9,200, one-half of which was to be paid upon delivery of the iron joist material of the bridge at the place of its erection. This the plaintiff has done, and if the contract is valid, $4,600 are now due to it.

The supervisors’ bill was passed in supposed pursuance of chapter 482, Laws of 1875, and amendatory acts. The title of the bill so recites, and such recital is required by the second section of the act of 1875. The sixth subdivision of section 1, as amended by chapter 451, Laws of 1885, forbids the board of supervisors to pass the law in question, except as follows: “ But no authority shall be exercised under this subdivision except upon the application of a town liable to be taxed for snch purpose, to be made by vote of a majority of the electors thereof voting at a regular town meeting, or at a special town meeting called for the purpose, or upon the application of the supervisor, by and with the consent of the commissioner of highways, town clerk and justices of the peace of such town.”

The special town meeting in this case was not called for the purpose of making any application to the board of supervisors. It was called in pursuance of the section of the Revised Statutes first cited in this opinion. That section does not embrace any provision for such an application. It specifies various other objects and concludes as follows: “And no special town meeting shall have power to act on any subjects other than such as are specified in this section.”

As there was no power to make the application at the special town meeting, as no other valid application was made, and as power to the board of supervisors to pass the law depends upon an authorized application, it necessarily follows that the power did not exist.

"We are cited to Town of Kirkwood v. Newburgh (45 Hun, 323). In that case the authority of the special town meeting to pass a somewhat similar resolution was not challenged, and, therefore, was assumed. The meeting probably was held in pursuance of a law or resolution which boards of supervisors are authorized to make by subdivision 19 of section 1 of chapter 482, Laws of 1875, as follows: “ To provide for the calling and holding of special town meetings to consider and decide any question upon which the electors of the town may be called to take action in accordance with the provisions, of this act.”

The special town meeting in Bergen v. Gubna (10 Hun, 11) was held under authority conferred by the board of supervisors.

The case of Barker v. Commissioners, decided by the Special Term, arose under the facts in this case. It was an action by a taxpayer to restrain the commissioners from building the bridge. The learned judge assumed that the board of supervisors had the proper application before them.

It needs no authority for the proposition that when the performance of a condition precedent lies at the foundation of the existence of a power, its non-performance leaves the assumption of the power without foundation.

The learned counsel for the plaintiff argues with force that,, assuming the existence of the proj>er application, boards of supervisors have no power to appoint commissioners in such cases. We incline to the opinion that the weight of authority is the other way. Chapter 482, Laws of 1815, is an enactment in pursuance of the constitutional authority to confer on boards of supervisors “ furtlieipowers of local legislation and administration.” The legislature has legislative power, and hence may confer administrative power; and boards of supervisors may, under the Constitution, if conferred, receive both legislative and administrative power. The power conferred upon boards of supervisors is a conferrence of the power appropriate to its execution, except as statutory or constitutional provisions limit or conflict. (Same chapter, § 6.)

The appointment of commissioners to build bridges has long been regarded by the legislature and the courts as an appropriate means to their erection.

Upon the case as submitted, as between the parties to the record, the plaintiff is entitled to judgment for $4,600, and such judgment is ordered against the defendant.

Learned, P. J., and Mayham, J\, concurred.

Learned, P. J.:

If the vote of the town meeting authorizing an application to the board of supervisors was not a vote “ on the question of raising and appropriating moneys for the construction and maintenance ” of this bridge, then under chapter 259, Laws of 1886, amending .section 7, article 1, title 2, chapter 11, part 1, Revised Statutes, the special town meeting could not vote upon it legally.

If it was a vote on the question of raising money or incurring any town liability, then it should have been by ballot. (Chap. 122, Laws of 1883.)

Landon and Mayham, JJ., concurred.

Judginent ordered for plaintiff on submission.


author: Mayham, J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. THE WESTERN UNION TELEGRAPH COMPANY, Appellant, v. MICHAEL A. TIERNEY and Others, Assessors of the City of Troy, Respondents.

      Interstate commerce— a tax imposed by a State upon the property of a telegraph company is not an interference with interstate commerce — judicial notice that the company is employed by the United States government — that its business extends beyond the limits of the State— affidavits to assessment-rolls, before whom they may be talcen — waiver.
    In proceedings to review an assessment upon the property of a telegraph company, incorporated under the laws of the State of New York, it was claimed that section 2 of chapter 659 of the Laws of 1886, imposing the tax, was in violation of article 1 of section 8 of the Constitution of the United States, as said act of 1886 affected interstate commerce, which was a subject of federal jurisdiction.

      Held, that the court would not take judicial notice of the fact that the relator conducted an interstate business and operated its telegraph lines outside of the territorial jurisdiction of the State of New York, nor of the fact that, as the agent . of the federal government for certain purposes, under the act of July 24, 1886 {U. S. Rev. Stat., §§ 5263-5269), its business extended beyond the limits of the State of New York, nor of the fact that it had assumed such relations thereunder with the United States as to deprive the State, by which it was created, and within which it was proved to have property liable to taxation, from exercising its powers of taxation.
    That where the tax is one upon the corporate property, and not upon the right of the corporation to do business, even though the corporate business extends beyond the limits of the State in which the tax is imposed, the tax is not a tax upon interstate commerce prohibited by the Federal Constitution.

      Semble, that a commissioner of deeds of the city of Troy, and the justice of the Justice's Court of Troy, if not county officers of the county of Rensselaer authorized by law to administer oaths to assessors, are officers in the county of Rensselaer authorized by law to administer such oaths.

      That if the assessment-roll was improperly verified, such defect was waived hy the relator’s failure to make it one of the grounds for the issuing of the certiorari to review such assessment, as required hy section 1 of chapter 269 of the Laws of 1880.
    Appeal from a judgment and determination, made at a Special Term of the Supreme Court and entered, on the 23d day of August, 1888, in the office of the clerk of Rensselaer county, adjudging that the writ of cerüorari allowed herein be quashed, and that the defendants, as general assessors, recover the costs of this proceeding.
    The cause was brought on to trial at a Special Term of the Supreme Court, held at the city of Troy, Rensselaer county, on July 2, 1888.

      King <& King, Wager Stoayne, Brown c& Wells, for the appellant.

      R. A. Parmenter, for the respondents.
   Mayham, J.:

We have examined the questions of fact relied upon by the relator to establish the over-valuation or inequality in the assessment complained of on certiorari from assessments in Troy for the year 1885, which is substantially like the evidence in this case, and reached the conclusion that the evidence did not justify a reversal of the judgment upon the facts, and we discover no reason for reaching a different conclusion in this case upon the facts on this appeal. (People ex rel. Wallkill Valley R. R. Co. v. Keator, 36 Hun, 592.)

The question raised by the appeal in this case differs from those arising on the certiorari for 1885 in two particulars, which require consideration.

First. In this case the relator appeared before the assessors on “grievance day” and objected to the assessment, which was not done, as we held, in that case; and,

Second. Chapter 659 of the Laws of 1886 modified or changed in some degree the law relating to the assessment of telegraph lines as it had theretofore existed.

On the day fixed by the public notice for hearing complaints by persons and corporations claiming to be aggrieved by the assessment of 1886, the relator appeared before them and presented an affidavit, in substance, that relator’s real property in Troy was worth not to exceed $4,000, and, by their attorney, requested the assessors to modify such assessment so as to conform to that amount, which they declined to do, and also called attention to the judgment setting aside the assessment of 1883, and ordering a re-assessment, but it does not appear that any additional facts were submitted to such assessors. ■ On the trial of this case at Special Term the same facts were relied upon as in the trial of, the certiorari of 1885 upon the question of value and all the other questions, except the additional fact of appearance on “ grievance day.”

It appears that the assessment for 1886 was at $12,000, or for $300 more than for the year 1885, but, as we have held in that case, we see no sufficient reason for reversal for over-valuation. It is true that the assessment was slightly increased, but by section 2 of chapter 659 of the Laws of 1886, in force at the time of the completion of the assessment for that year, the apparatus, instruments or other thing connected with, or used as part of such line in such town or ward,” were made liable to assessment as lands, and the proof shows that the relators had in Troy as apparatus, instruments consisting of relays, sounders, switch-boards, keys, batteries, electric-light protectors, and other apparatus connected with their lines not estimated in the estimate of value of material and cost of construction, which the evidence shows were in use, and which the trial court might well have regarded as sufficient to justify the small increase in value over the previous year. Nor were the respondents bound to adopt the statement filed by Brewer with the county treasurer. It was substantially in the same form as the one filed by Peck in 1883, which was held by Peokham, J., not to be in conformity with chapter 597 of the Laws of 1881, under which it purports to have been filed, and that it' is, therefore, null and void and of no effect in law.

That certificate, therefore, furnished no evidence upon which the assessors could legally act. But it is insisted by the relator that section 2 of chapter 659 of the Laws of 1886, so far as the assessors acted under or by authority of the same, is in violation of article 1, section 8 of the Constitution of the United States, and, therefore, illegal and void, as it affects interstate commerce, and is, therefore, subject to the federal jurisdiction.

It is conceded that the relator is a corporation created under the laws of New York, and there is no proof in this case that its lines extend beyond the limits of the State of New York. But it is insisted that this court should take judicial notice of the fact that the relator conducts an interstate business and is the agent of the federal government for certain purposes under the act of July 24, 1866. (U. S. R. S., 5263-5269.)

"We have not been cited to any authority holding that the court, on appeal, can take judicial notice' of the existence or operation of the telegraph lines of the relator outside of its territorial jurisdiction without proof of their existence.

While there are certain facts of a public nature of which the court may take judicial notice, still we understand the rule to be that they must be of a public nature, such as the political divisions of the country, public statutes, the tie facto existence of independent nations, and the existence of a state of war between such nations ; but the fact that an act of congress has made it possible for a telegraph company, which is purely a private corporation, created under general laws, by which certain restrictions and limitations are imposed, to, under certain restrictions, establish business relations with the federal government, does not, we think, without ■proof that such relations have been formed, justify the court in assuming that it extends beyond the limits of the State, and has assumed such relations with the United States as to deprive the State by which it was created, and within which it is proved to have property liable to taxation, from exercising its taxing powers.

It cannot, therefore, be claimed, under the evidence in this case, that the exercise of the taxing power upon the relator’s property in the city of Troy is an interference with the constitutional rights of the federal government to regulate commerce * * * among the several States” within article 1, section 8, subdivision 3 of the Federal Constitution, especially as there was no finding by the coui’t or request by the relator of the court to find that the telegraph extended into other States, and no evidence to establish that proposition.

The case of Leloup v. Port of Mobile (121 U. S. R., 645), does not seem to be in point on this question. In that case the proof showed that a large part of the relator’s business was interstate and international, and the tax imposed seems to be a license tax, and the question propounded by the court was: “ Can a State prohibit such a company from doing such a business within its jurisdiction, unless it will pay a tax and procure a license for the privilege ? ” and the court answers: “ If it can, it can exclude such companies and prohibit the transaction of such business altogether. We are not prepared to say that can be done.”- That is not this case, no license tax is sought to-be imposed. The tax purports to be a tax upon the relator’s property, and not upon its right to do business; and to hold that a tax upon the property of a corporation within the State, even if we assume that it is connected with lines in other States, was a tax upon interstate commerce and prohibited by the Federal Constitution, would, it seems to us, exempt from State taxation many ■of the great railroads and other corporations within this State, and thus practically exonerate and relieve them from all taxation.

It was entirely competent for the legislature to authorize the taxation of “ Telegraph Lines.” “ Lines shall include the interest in the land on which the poles stand, the right or license to erect such poles on land, and all poles, arms, insulators, wires and apparatus, .instruments or other thing connected with or used as a part of such line in such town or ward.” (Chap. 659, Laws of 1886.)

Nor do we think this assessment should be set aside or this judgment be reversed because of the official character of the officers before whom the assessors swore to the assessment-rolls either in 1885 or 1886 or 1887.

It is objected that the commissioner of deeds of the city of Troy ■and the justice of the Justice’s Court of Troy are not officers of ■the county of Rensselaer authorized by law to administer oaths. 'They were officers in the county of Rensselaer, authorized by law to administer oaths. If this was not a technical compliance with the statute, we think the defect was cured in both instances by the .relator failing to make the same one of the grounds of the certiorari, as section 1 of chapter 269 of'the Laws of 1880 requires the relator in his petition to specify the grounds of the illegality. No such ground having been specified in the petition, we think the point ■cannot be made on this- appeal.

On the whole case, we see no error for which the judgment should he reversed.

Learned, P. J., and Landon, J., concurred in the result.

Judgment affirmed, with ten dollars costs and disbursements.


author: Landon, J. :

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. CYRUS N. BALLOU, Appellant, v. JOHN D. WENDELL, County Judge of Montgomery County, Respondent.

      Veteran — appointment of, to office — mandamus denied — the alleged improper appointee is a proper pan'ty to any proceeding for his removal.

    Upon an application for a mandamus to compel the county judge of Montgomery county to appoint as crier of the courts of record of said county an honorably discharged soldier, it appeared that the county judge had appointed a civilian to the office for which the relator, who claimed that he possessed qualifications sufficient to perform its duties, was an applicant.

      Held, that, conceding the relator to have such qualifications, he was not entitled to a writ of mandamus requiring the county judge to appoint him to the office.
    That the statute did not give him the office, nor require that he alone, of all honorably discharged Union soldiers, should be appointed'thereto.
    That, even if the appointment made by the county judge should be vacated, and the county judge were peremptorily commanded to appoint a soldier, he would not be limited in his selection to the relator.
    That, inasmuch as the county judge had selected a crier, and had executed the-power of appointment, he had no further duty to perform and the mandamus-could not, therefore, issue against him to compel him to give a preference to-Union soldiers, where he had already made the appointment in regard to which-the preference was claimed.
    That the relator’s grievance did not rest in the fact that the county judge had refused to act, but that he had erred in his action and appointed a civilian instead of a soldier, to remedy which a mandamus was not an appropriate-measure.
    That as the civilian appointed by the county judge was in possession of the office- and was not a party to this proceeding, he could not be removed from office and the relator inducted into it until he had had his day in court.
    Appeal by the relator from an order of the Supreme Court dismissing the above-entitled proceedings and denying an application to submit the issues therein to the jury, which order was-entered in the office of the clerk of the county of Montgomery on the 27th day of November, 1889, with notice of an intention to bring up for review the exceptions taken upon the trial, and the order dated November 20, 1889, and the proceedings and the evidence upon which the same were made and relating thereto.
    The proceedings were instituted upon the petition oí Cyrus N. Ballou, the relator, presented at a Special Term of the Supreme Court, held in the county of Montgomery, at which an alternative writ of mandamus was issued. To this writ the defendant made answer, and the issues having been joined were brought to a hearing before the court and a jury. At the trial evidence was received by the coui’t, and upon the close thereof the defendant moved to dismiss the proceedings upon the ground that, upon the facts- presented, the relator was not entitled to a writ of ma/ndmnus, and was not entitled to the relief claimed in Ms petition.
    The relator requested that the evidence be submitted to the jury,, and that all the issues presented by the pleadings, and the alternative-writ of m,<mdamu,s and the petition and the answer of defendant, be submitted to the jury.
    The court refused to submit the evidence to the jury, and ordered that the proceedings be dismissed.
    The relator, an honorably discharged soldier of the Union army,, and otherwise eligible to appointment, in January, 1889, applied to-the defendant, as coimty judge of Montgomery, county, to be-appointed crier of the courts of record for said county. The judge-appointed one Folmsbee, a civilian, to the office. Whereupon the-relator obtained a writ of alternative ma/ndamus. The defendant made return to the writ, denying the capacity of the relator to discharge the duties of the office, and alleging that Folmsbee had the-better qualifications, and, therefore, the defendant appointed him, and taking issue upon other allegations of the writ. These issues-were brought to trial before the Circuit Court and a jury. At the close of the testimony, upon motion of the defendant, the court dismissed the proceedings, with costs, refusing-to submit the case to the: jury. From the order reciting this disposition of the case the-relator appeals.

      Sayles, Searl <& Sa/yles, for the appellant.

      W. B. Dunlarp, for the respondent.
   Landon, J. :

Since the trial court refused to submit the case to the jury and dismissed the proceeding, we may assume upon this appeal that every controverted question of fact might have been found in the-relator’s favor by the jury if the case had been submitted to them. The case, then, is, that there was a vacancy in the office of crier of the courts of record for Montgomery county; that the relator was an elector of the county and an honorably discharged soldier of the Union army, and was the only soldier who was an applicant for the office, and that he possessed qualifications sufficient to perform the duties of the office. That one Folmsbee was also an applicant for the office, and that the county judge, after a consideration of the matter, appointed Folmsbee instead of the relator. That the county judge, in making the appointment, considered that Folmsbee would make the better officer.

The question, then, is, would the relator, assuming these facts to be found in his favor, be entitled to a writ of peremptory mandamus requiring the county judge to appoint him? We think not. The ■statute does not give him the office nor command that he alone of ■all the honorably discharged Union soldiers shall be appointed. .It says that such soldiers shall be preferred, other necessary qualifi■cations existing. It points out no methods by which one soldier .shall have a preference to the appointment over all other soldiers; it simply prefers soldiers to civilians. Even if the appointment of Folmsbee should be vacated, and the county judge were peremptorily ■commanded to appoint a soldier, he would have the whole body of •eligible soldiers from whom to select. It follows that the relator has no clear legal right to the appointment to the exclusion of all ■other soldiers, and hence lacks the clear right essential to a 'mandamus.

Again, mcmdamus issues to compel inferior tribunals and officers •to act. Assuming that it was the duty of the county judge to ■appoint a crier, he could make that appointment from the whole body of eligible electors. All that mandamus could do would be to compel him to act and make the appointment. In so far as he had discretion in exercising the right of selection, mandamus could in no wise control that discretion.

The county judge had the duty to select, the power and duty to ■appoint. He has discharged that duty, and has no further duty now to perform. Whatever may have been his obligation to give the soldiers a preference, his power to discharge that obligation ended when he made the appointment. (People ex rel. Lockwood v. Saratoga Springs, 54 Hun, 16; People ex rel. Hall v. Village of Little Falls, 29 N. Y. St. Rep., 723; People ex rel. Stephens v. Barden, 30 id., 52; People ex rel. Snyder v. Summers, Id., 614.)

The relator’s grievance is not that the county judge refused to act, but that he erred in his action and appointed a civilian instead of a, soldier. Whether there is any method to review his decision and action we are not called upon to decide, it is enough now to say that mandamus is not an appropriate method to review it. Besides, Folmsbee was appointed to the office, and presumably is in possession of it. He is not a party to this proceeding and cannot be turned, out without his day in court in the proper action. The relator cannot be inducted into office unless a vacancy can be legally made for him to fill. It cannot be made in this proceeding.

The learned counsel for the relator cites Matter of Wortman, (22 Abb. N. C., 137) as an authority for mandamus. Mandamus was refused in that case. In the Matter of Sullivan (28 N. Y. St. Rep., 566) the soldier had procured his preferment to employment, and then was arbitrarily deprived of it. Mandamus was issued to-compel his restoration to his rightful place.

The difference between depriving a person of what is already rightfully his own, and compelling the bestowment upon him of' what he never had, is suggested in the case and is very plain. That, difference exists between that case and this.

It is manifestly difficult to enforce, in cases like the one before* us, the compulsory preference which the act seems to prescribe. Practically, the act embodies an inconsistency in principle. It seeks to give a preference to one class of citizens as a class without impairing that equality of civil rights which the soldier struggled to establish, and, also, without changing the wise maxims of government by which justice is administered. We cannot put the relator in without turning Folmsbee out, and, so far as we know, Folmsbee has a right to stay in. We cannot put the relator in without changing the rules governing mandamius, and the legislature has not authorized any change. There are many soldiers, and the relator is only one, and the act does not provide for merging in him the rights of every other soldier and of every other person eligible to appointment.

The order and judgment thereon should be affirmed, with costs.

Learned, P. J., and Mayham, J., concurred.

Judgment affirmed, with costs.


author: Landon, J.:

text:
    JOSEPH LAROCQUE, Respondent, v. WILLIS C. HARVEY, Appellant.

      .Appealfromajudgmentof a justice of fhe peace — wantof jurisdiction of the defendant, by the justice, may be shown on appeal by affidavit.

    At tlie time of the service of a notice of appeal from a judgment of a justice of the peace, the defendant in the action, who did not appear before the justice upon the return day of the summons, served, in connection with his notice of appeal, an affidavit alleging that the justice resided in one town, and that the plaintiff and the defendant were residents of another town which did not adjoin the town in which the justice resided; the facts alleged in this affidavit were not denied. .Held, that, upon such an appeal, errors in fact not affecting the merits, and not within the knowledge of the justice, might be determined upon affidavits, and that the affidavit used in this case was competent to show that the justice had no jurisdiction of the person of- the defendant.
    That the fact that the defendant did not appear in response to a summons which the justice had no jurisdiction to issue was not a waiver of his right to subsequently object to the entry of the unauthorized judgment.
    Appeal by the defendant from a judgment of tbe County Court of the county of Franklin, entered in the office of the clerk of said county on the 1st day of November, 1889, confirming the judgment of a Justice’s Court in said action for damages and costs.
    The action was originally brought in a Justice’s Court, and it was claimed by the defendant that the justice had no jurisdiction of his person.
    The justice of the peace resided and had his office in the town of Malone, and the summons was returnable there. Both the plaintiff and the defendants were at the time residents of the town of Waverly, in Franklin county. The town of Waverly does not ■adjoin the town of Malone. These facts appeared in the affidavit of the defendant, served in connection with his notice of appeal, and were not disputed.

      J. W. Wébb, for the appellant.

      Kellas <& Munsill, for the respondent.
   Landon, J.:

The justice of the peace had no jurisdiction of the person of the defendant. (Houghtaling v. Groesbeck (51 N. Y., 673). Section 2869 of the Code of Civil Procedure provides : “ An action must he brought before a justice of a town or city wherein one of the parties resides, or a justice of an adjoining town or city in the same county.” There are certain exceptions not material here. A justice of the peace has the civil jurisdiction, given him by statute, and no other. (Sec. 2861). Upon appeal, errors in fact not affecting the merits, and not within the knowledge of the justice, may he determined upon affidavits (Sec. 3057). The affidavit of defendant showing the residence of the parties was, therefore, competent and properly received. (Griffin v. Norton, 5 N. Y. State Rep., 812; Vallen v. McGuire, 18 id., 410.)

The plaintiff cites section 3064. That section is applicable to a defendant in default who seeks to open it. In such case he appeals to the discretion and favor of the court. Here the defendant asks no favor; he denies the jurisdiction of the justice. If the facts deprived the justice of jurisdiction, it was the defendant’s right to show them. In Hoffman v. Barton (14 N. Y. State Rep., 506), cited by plaintiff, it does not appear that such facts were shown.

The fact that the defendant did not appear in response to a summons which the justice had no jurisdiction to issue was no waiver of his right to his subsequent objection to an unauthorized judgment.

The judgment should be reversed, with costs.

Learned, P. J., and Mayham, J., concurred.

Judgment of County Court and of justice of the peace reversed, with costs.


text:
    THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. DANIEL MAXON, Appellant.

      Scope — the aet must be committed against the will and without the consent of the female.

    An indictment charged the crime of rape in two counts : First. Sexual intercourse upon one Augusta Brandes, a female under the age of sixteen years, and not the wife of the accused, violently, forcibly and without her consent and against her will. Second. Sexual intercourse upon one Augusta Brandes, a female under the age of sixteen years, and not the wife of the accused, in that he (the prisoner) did willfully and feloniously have sexual intercourse with, ravish and carnally know her.

      The testimony did not tend to establish the acts charged in the first count, but the acts charged in the second count were proved.
    Upon the trial it was objected that the facts as proved did not constitute the crime of rape, and the court was requested to hold that, under the second count, the accused could not be convicted of that crime, which the court declined to do.

      Held, that the request was a proper one; that, in order to constitute the crime of rape, the acts must be committed against the will and without the consent of the female.
    Appeal by the defendant Daniel Maxon from a judgment, rendered at the Ulster General Sessions, convicting the defendant of the crime of rape on March 1, 1890.
    The indictment was as follows:
    “ The grand jury of the county of Ulster, in the State of New York, by this indictment accuse Daniel Maxon, late of the city of Kingston, in the county of Ulster and State of New York, of the crime of rape, committed as follows:
    “ The said Daniel Maxon, on the twenty-fifth day of December, in the year of our Lord one thousand eight hundred and eighty-eight, with force and arms at the city of Kingston, in the county of Ulster and State of New York, in and upon one Augusta Brandes, a female under the age of sixteen years, to wit: Of the age of fifteen years and not the wife of him, the said Daniel Maxon, violently, forcibly and feloniously did make an assault, and her, the said Augusta Brandes, then and there violently, forcibly, without her consent and against her will, willfully and feloniously did have sexual intercourse with, ravish and carnally know against the form of the statute in such case made and provided and against the peace of the People of the State of New York and their dignity.
    “ Second Count. And the grand jury aforesaid, by this indictment further accuse the said Daniel Maxon, late of the city of Kingston, in the county of Ulster and State of New York, of the crime of rape committed as follows:
    “ The said Daniel Maxon afterwards, to wit: On the twenty-fifth day of December, in the year of our Lord one thousand eight hundred and eighty-eight, at the city of Kingston, in the county of Ulster and State of New York, with force and arms, in and upon one Augusta Brandes, a female under the age of sixteen years, to wit: Of the age of fifteen years, and not the wife of him, the said Daniel Maxon, feloniously did make an assault, and her, the said Augusta Brandes, then and there willfully and feloniously did have sexual -intercourse with, ravish and carnally know against the form of the statute in such case made and provided and against the peace of the People of the State of New York and their dignity.

      D. M. De Witt, for the appellant.

      J. N. Vandertyn, district attorney, for the People.
   Landon, J.:

The defendant was found guilty upon an indictment containing two counts. In each count it is alleged that the “ grand jury of, etc., accuse Daniel Maxon, late of, etc., of the crime of rape, committed as follows.” In the first count the acts charged as constituting the crime charge a rape as defined in section 218 of the Penal Code, namely, “ An act of sexual intercourse with a female, not the wife of the perpetrator, committed against her will or without her consent.” In the second count the acts charged as constituting the crime, charge an act of sexual intercourse with a female, not the wife of the defendant, under the age of sixteen years.

The testimony given did not tend to establish the acts charged in the first count, but did tend to establish the acts charged in the second count.

The point was distinctly presented upon the trial that the crime charged in the second count was rape, and the facts charged did not constitute the crime of rape, but did constitute the crime of the act of sexual intercourse with a female, not the wife of the defendant, under the age of sixteen years.

The court was thereupon requested to hold that, under this count, the defendant could not be convicted. The court refused so to hold. We think the request was a proper one, and that its refusal was error. Section 218 of the Penal Code defines rape as follows : “ Bape is an act of sexual intercourse with a female, not the wife of the perpetrator, committed against her will or without her consent.” No other definition of rape is given. The section continues: “ A person perpetrating such an act (i. e., rape), or an act of sexual intercourse with a female not his wife, (1.) When the female is under the age of sixteen years; ” then follow several other conditions not material here, the section concluding, “ is punishable by imprisonment for not less than five nor more than twenty years.”

Since the statute makes it an essential of the crime of rape that the act of sexual intercourse must be committed against the will or without the consent ” of the female, any other criminal sexual intercourse which does not embrace that essential must be other than rape. The section in question makes the acts of criminal sexual intercourse other than rape equally punishable with rape, but it does not make them rape, and it distinguishes them from rape, not only by the difference in definition, but also by separating them from each other by the disjunctive or in the sentence, “A person perpetrating such an act (i, e., rape), or an act of sexual intercourse,” etc.

The defendant was, therefore, accused in the second count of the indictment of rape, and was charged with acts as constituting it, which did not, in fact, constitute it. The accusation of crime was not supported by a charge of acts constituting that crime. The crime charged was not supported by. the acts proved. The defendant was found .guilty of rape without having been proved guilty of rape. II.e may have been proved guilty of the “ carnal abuse of a child,” if we may adopt the language of the title of the chapter in which section 278 of the Penal Code is placed, or of “ an act of sexual intercourse with a female, not his wife, under the age of sixteen years,” if we use, as we think is preferable, the language of the section itself, but he was not accused in the indictment of this crime. Section 276 of the Code of Criminal Procedure requires that the indictment shall state both the accusation of the crime and the facts whereby it was committed. A substantial variance between the crime charged and the facts charged is fatal. (People v. Dumar, 106 N. Y., 502.)

The judgment of conviction and sentence must be reversed and the case be remitted to the Sessions of the county of Ulster for such proceedings as may be proper.

Learned, P. J., and Mayham, J., concurred.

Judgment and conviction reversed; cause remitted to Sessions for further action.


author: Learned, P. J.:

text:
    HERBERT M. TAYLOR, Appellant, v. THE TOWN OF CONSTABLE, Respondent.

      Overseer of highways — duty of, to repair a bridge — contributory negligence— reliance upon the judgment of the commissioner of highways.

    An overseer was directed by a commissioner of highways to make some repairs to a bridge which was found to have, among other things, a rotten brace in it. Timber was gotten out for the purpose of repairing the brace and a time was appointed for the doing of the work. The execution of this work was, however, postponed, and in the interval the overseer, in driving over the bridge with a loaded wagon, was injured by the falling of. the bridge. This fall of the bridge, however, was occasioned by a stringer breaking before the rotten brace gave way, which was apparently the cause of such brace giving way.
    A certain amount of repairs had been made to this bridge before the accident and the commissioner had stated to the overseer, who worked by the day for the highway commissioner, that he thought it was safe to draw potatoes across and to travel across. It also appeared that a number of loaded wagons had crossed the bridge without any accident happening.

      Held, that it was not the duty of the plaintiff, as overseer, to keep this bridge in repair.
    That as he was not a contractor with the commissioner to make repairs, but only an employee working by the day and paid by the day, the plaintiff had assumed no duty in respect to the repairs.
    That as the first cause of the accident was the breaking of the stringer, and it was not shown that the plaintiff had knowledge of its rotten condition, although he knew of the condition of the brace, and as the commissioner had stated that he thought it was safe to pass over the bridge, and loaded wagons had crossed it, that a question was presented for the jury whether, under these circumstances, the plaintiff was negligent.
    That when the commissioner of highways exercised his judgment in regard to the safety of the bridge under his charge and left it open for public travel, he practically asserted to the public that the bridge was safe and a traveler had a right, in passing over it, to largely rely on this -opinion-of the officer entrusted with the duty of its repair.
    Appeal by tbe plaintiff Herbert M. Taylor from a judgment of tlie Supreme Court, entered in the office of the clerk of the county of Eranklin, on the 18th day of March, 1890, in favor of the defendant, dismissing the plaintiff’s complaint, with costs, and from an order of said court entered in said office on the same day non-suiting the plaintiff and dismissing his complaint, and refusing to submit to the jury upon the trial of the action the several questions requested by tbe plaintiff to be submitted by tbe court to tbe jury for its determination.

      John P. Kellas, for the appellant.

      John P. Badger, for the respondent.
   Learned, P. J.:

This is an appeal from a judgment on a nonsuit at circuit. The action was brought to recover damages for injuries caused to plaintiff by reason of the fall of one of defendant’s bridges, by means of which he was thrown into the water. There was no doubt, on the proof given at the trial, of the defective condition of the bridge; of its fall and of plaintiff’s injury. The defendant insisted that the plaintiff was guilty of contributory negligence; and upon that ground the nonsuit was granted.

The plaintiff was overseer of the highways of the district in which the bridge was. There were two spans to the bridge ; one only, the east, is over the river and is the one in question. It was built with five stringers, each fifty-four feet long, extending over the river, on which rest the planks. The stringers were a little less than three feet apart, from outside to outside; the planks twelve feet long. On each of the outside stringers was a brace made of three sticks; two slanting and the top stick horizontal, thus forming a truss; a rod running down where the slanting stick joined the horizontal.

About a month before the accident plaintiff and Mr. Callahan, commissioner of highways, and one Badore, met at the bridge and examined it. Two or three weeks before the accident they straightened up the brace on the south side of this east span, which had leaned over for a year; and decided that the north brace was so rotten that there must be a new one. Timber was gotten for that purpose for the horizontal beam and one of the slanting pieces. They made an appointment for the next Tuesday to put in the north brace. The commissioner told them if he was not there to go to work. Tuesday it snowed and stormed so no one could work. This was two weeks before the accident. Plaintiff did nothing to the bridge up to the time of the accident.

Before they repaired it plaintiff had frequently said that the bridge was rotten and in danger of falling. Plaintiff’s wife, four or five weeks before the accident, had cautioned him about going across.

After they had repaired it, as above stated, Mr. Callahan said he thought they had fixed it so that it was safe to draw potatoes across and to travel across. He examined the stringers and said it was safe to cross. Plaintiff worked by the day for Callahan.

Mr. Spencer drew potatoes over the bridge nearly every day after the bridge was thus repaired. He drew with a double wagon and a team. The potatoes weighed about 3,500 pounds.

The plaintiff drove across the morning of the accident, and then loaded a thrashing separator on his wagon, weighing about 1,300 pounds. On returning with this load the bridge broke.

Mr. Preño was riding with plaintiff. He had previously driven over with a wagon and double team and thirty-five bushels of potatoes. At the time of the accident he says the north stringer broke first; when that went down about nine inches the brace on the north side broke in the middle. He says people crossed on the bridge every day.

We do not see that, as overseer, the plaintiff was bound to keep this bridge in repair., (1 R. S., m. p. 503, § 6; Bartlett v. Crozier, 17 Johns., 447; Day v. Day, 94 N. Y., 153, 159.)

The defendant urges that, by the arrangement made with the commissioner of highways, the plaintiff had agreed to repair the bridge; hence, that he cannot recover for injuries occasioned by his neglect to do so. (Sterger v. Van Siclen, 28 N. Y. St. Rep., 627; Walker v. Globe Man. and Imp. Co, 21 id., 470.)

It appears from the evidence that plaintiff was not a contractor who had agreed with the commissioner to make these repairs. He was only an employee working by the day and paid by the day. The commissioner had agreed to meet plaintiff and Badore on Tuesday; and had told them to go on with the work if he were not there, and if the day were so that they could work. It proved to be too stormy and the commissioner did not come. The plaintiff had, therefore, assumed no duty. The whole duty to repair was with the commissioner.

Again, it is urged that plaintiff knew of the unsafe condition of the bridge and was, therefore, negligent. It is said his wife had cautioned him. That was some three months before the accident. And she says that her remark referred to the part of the bridge where there were no guards to keep a horse from going over if frightened; that after the bridge was repaired nothing was said about its being dangerous.

As to plaintiff’s own knowledge. There is evidence tending to show that the beginning of the accident was the breaking of the north stringer, and that then stringer after stringer followed. It is not shown that the plaintiff knew of the rotten condition of the stringers. He says that when he was working at the bridge with the commissioner he saw nothing to indicate that they were unsound. It was the north brace which was to have been repaired on the appointed Tuesday; and there is evidence that, when the accident happened, this brace did not break until after the stringer had broken and sunk down. So that it might have been found that the immediate cause of the accident was the breaking of the stringer.

Furthermore, there were circumstances tending to show to plaintiff that, for the present, it was safe to cross the bridge. After the repairing the commissioner said to him he “thought we had fixed it so it was safe to draw potatoes across and to travel across.” And teams drawing potatoes, fifty bushels or thereabouts, had crossed thereafter from day to day. These loads of potatoes weighed about 3,500 pounds- — -much more than the load which plaintiff had on his wagon. Whether, under all the circumstances, the plaintiff was negligent was a question for the jury. In Bullock v. Mayor, etc. (99 N. Y., 654), where a sidewalk was known to plaintiff to be unsafe, it was held that she had a right to use it and that the question of her negligence was for the jury. So in Link v. Brunswick (10 N. Y. State Rep., 642), the plaintiff’s property was injured by the fall of a bridge over which he was driving. A nonsuit for contributory negligence was held improper. The court remarked : “ To say that a bridge was dangerous would not necessarily imply that there was probability of its immediate fall.”

“Negligence is a relative term and depends on the degree of care necessary in a given case.” (McGuire v. Spence, 91 N Y., 305.) Negligence is the doing what a prudent man would not do. And when the question is one of the negligence of the plaintiff it is generally for the jury to decide. The argument of the defendant is, that if the defendant was negligent in not repairing, then that the plaintiff had the same knowledge with the commissioner and was, therefore, negligent in crossing. But we think that argument is not sound. The responsibility is with the commissioner. He must exercise his judgment and see that the bridge is safe. And when he leaves the bridge open for public travel, he practically asserts to the public that the bridge is safe. The traveler has a right largely to rely on this opinion of the officer entrusted with such an important duty. In the present case the plaintiff had not only this assertion of safety by the act of the commissioner, but he had also the express statement made to him at the time of the repairing.

The decay in such a structure is gradual. It continues to bear the ordinary weight of traffic till at last the decay reaches such a point that the structure falls. It is not the duty of the commissioner to see how near to that moment of breaking he can keep up the structure. On the other hand, the traveler who is almost under the necessity of crossing the bridge, though he may see that it is old and shows some marks of decay, may certainly suppose that the commissioner has done his duty.

On the whole, we are of opinion that it was for the jury to decide whether, under all the circumstances, the plaintiff was negligent.

The judgment must be reversed, new trial granted, costs to abide event.

Landon and Mayham, JJ., concurred.

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


author: Barnard, P. J.:

text:
    THE FARMERS’ LOAN AND TRUST COMPANY, Plaintiff and Respondent, v. THE NEW ROCHELLE AND PELHAM RAILWAY COMPANY, Defendant. THE VILLAGE OF NEW ROCHELLE, Appellant.

      Mortgage foreclosure against a street railroad company — right of a village holding a bond, of indemnity given by the railroad, upon which action has been brought, to be made aparrty.

    In an action brought to foreclose a mortgage upon a street railroad in New Rochelle the village applied to be made a party. Upon such application it appeared that the railroad was authorized to lay its tracks, by permission of the village, on condition that it should give a bond to pay all damages which might result from the building of the road or the grading of the streets; that such bond was given; that an action had been brought thereon by the village to recover damages, and was still pending, the railroad having interposed an answer denying all liability in the action.

      Held, that the motion by the village to be made a party defendant in the foreclosure case was properly denied, as it had not a lien upon the railroad and was only a general creditor.
    Appeal by the Tillage of New Rochelle, the moving party herein, from an order made at a Special Term of the Supreme Court, held in Westchester county on February 1, 1890, and entered, on the same day, in the office of the clerk of said county, denying the motion of said village to be brought in and made a party to this action, and from each and every part of said order.

      Martin J. Keogh, for the Tillage of New Rochelle, appellant.

      Henry B. Turner, for the respondent.
   Barnard, P. J.:

The defendant is a domestic corporation formed to construct a street railroad in New Rochelle, with a branch to Pelham. On the 2d day of November, 1885, the board of trustees of the Tillage of New Rochelle granted, by resolution, permission for the defendant to construct, maintain and operate its road on the streets and highways of the village as expressed in the resolution.

Certain conditions were contained in the resolution in respect to the method to be observed in building and keeping in repair the railroad and in grading the streets between the track and on each side of the same. In 1888 the defendant executed a mortgage to the plaintiff on its road and franchises, privileges and equipments to secure a loan. This action is brought to foreclose that mortgage. Among the conditions specified in the resolution, giving the privilege to lay the tracks in the village, was one to the effect that the railroad company should indemnify the village from all damages which might result from the building of the road or the grading the streets, and that a bond in the penal sum of $10,000 should be given to that effect. The bond was given and the village claimed that damages were sustained by the village, by reason of the acts and omission of the railroad, and commenced an action in October, 1889, upon the bond to recover the amount thereof, which is still pending. The railroad denies all liability in its answer.

In November, 1889, the Farmers’ Loan and Trust Company commenced an action to foreclose its mortgage and the village applied to be made a party defendant. The motion was properly denied. There is nothing in the resolution which gives or purports to give a lien on the railroad. Oonditions are imposed as to construction and grading, and a bond demanded to secure the observance of these conditions, but no lien is called for. The franchise to the defendant was not given by the village, but by the people upon the consent of the village. This consent is irrevocable as against the Loan Company and railroad after its construction, and the purchaser will take subject to the conditions contained in the consent.

The village is, therefore, only a general creditor as against the railroad, and under the case of Herring v. New York and Erie Railroad (105 N. Y., 340), cannot be made a party defendant. If the village has the first lien on the railroad, it .will remain after the-Farmers’ Loan and Trust Company foreclose their subsequent one. As a first lienor the village would not be a proper party. (Goebel v. Iffla, 111 N. Y., 170.)

The order should be affirmed, with costs and disbursements.

Peatt, J., concurred; Dykman, J., not sitting.

Order affirmed, with costs and disbursements.


text:
    THE PEOPLE OF THE STATE OF NEW YORK, Appellant, v. THE ATLANTIC AVENUE RAILROAD COMPANY, Respondent.

      Action to dissolve a corporation — neither six days discontinua/nce of business, nor an exaction from its employees of more than ten hours labor a day, a ground therefor.

    An action by the attorney-general to dissolve a railroad corporation because of a. failure to exercise its corporate powers cannot be sustained under an averment and proof that the railroad company has discontinued its business for six days.
    It is not a legal ground of forfeiture of a corporate charter that the corporation has exacted, in violation of chapter 529 of the Laws of 1887, more than ten hours, labor a day from its employees.
    Appeal by the plaintiff from a judgment of the Supreme Court, entered in the office of the clerk of the county of Kings on the. 24th day of February, 1889, with notice of an intention to bring up. for review the decision or intermediate order made at a Special Term in the county of Kings on the 17th day of February, 1890.
    Ey the judgment the defendant’s demurrer to the complaint was. sustained and the complaint was dismissed, with costs.
    The action was brought by the attorney-general of the State of New York for the dissolution of the defendant, a corporation.

      John T. McDonough,, for the appellant.

      W. W. MacFwrland, for the respondent.
   Barnard, P. J.:

By section 1785 of the Code it is provided that an action may b& maintained to dissolve a corporation “ where it has suspended its-ordinary and lawful business for at least one year.” This is the= only provision of law which authorizes a dissolution for a suspension of the business of the corporation. Section 1798 of the Code is not in conflict with section 1785. Section 1798 permits the attorney-general to bring an action against a corporation created under the laws of this State, and among the causes specified for vacating a. charter of a corporation is when a corporation has forfeited its-privileges and franchises by a failure to exercise its powers. This-makes no different rule from the one established in section 1785, and it is to that section the attorney-general must look for a declaration as to what constitutes a forfeiture of a franchise by a failure to-exercise its powers.

It may,- therefore, safely be conceded that an action will lie for an. omission of duty amounting to a breach of- trust by a corporation, but the legislature have plainly given a period of one year, during-which an omission to transact its business shall not be sufficient to-annul the charter. There is, therefore, no cause of action stated in the complaint under that breach of it which avers a discontinuance-of business for six days, and there is no averment that the company had not the power and wish to continue the business. (Bradt v. Benedict, 17 N. Y., 93.)

By chapter 529, Laws of 1887, ten hours labor to be performed, within twelve hours was the standard day’s work to be exacted by the defendant of its employees, and the act made a violation of the same a misdemeanor as to all officers and agents of the corporation who exacted more than ten hours a day. The complaint avers a failure to observe that law as a reason for annulling the charter of the defendant. It is not a legal cause for a forfeiture of the charter. The act does not so provide, but it does provide a criminal pimishment for its violation as to its officers and agents who offend against its provision. The act is not in terms an amendment to the railroad act, and it is not an amendment by implication. A corporation must act by agents, and these agents cannot destroy the corporation by a criminal act, in the absence of the expression of a legislative intent to that effect in the legislative act which creates the crime.

The judgment should, therefore, be affirmed, with costs.

Pbatt, J., concurred; Dykman, J., not sitting.

Order sustaining demurrer to complaint and judgment thereon affirmed, with costs.


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    MARY HOSKINS, as Administratrix, etc., of REUBEN HOSKINS, Respondent, v. JAMES STEWART and GEORGE STEWART, Appellants.

      Negligence by the contractor in building a city sewer — injury to an employee by the bursting of an adjacent water-pipe.

    In an action brought against contractors engaged in building a sewer in a city-street, it appeared that the plaintiff’s intestate was engaged in the work as an employee of the defendants ; that the excavation for the sewer was about sixteen feet in depth and five feet wide at the top, and was protected by planks placed upright against the side, with cross pieces four feet apart between them; the upright planks being placed at a distance of eight feet from each other.
    After half a mile of the sewer had been safely constructed in this way, a water-pipe, parallel with the sewer and about two feet from the edge of the trench, burst, filled the trench with water and caused a caving in of the banks, by which the plaintiff’s intestate was killed.

      Held, that the circumstances shown did not establish any negligence on the part of the contractors.
    Appeal by the defendants, James Stewart and George Stewart, from a judgment of the Supreme Court, entered in the office of the clerk of the county of Westchester on the 29th day of October, 1889, in favor of the plaintiff, and also from an order denying a motion made by the defendants for a new trial upon the minutes of the court, entered in said clerk’s office on the 21st day of November, 1889.
    The action was tried before the court and a jury at the Westchester Circuit, at which a verdict was rendered in favor of the plaintiff for the sum of $5,000.

      Joseph F. Dah/, for the appellants.

      Martin J. Keogh, for the respondent.
   Barnard, P. J.:

The ease does not show that the defendants were guilty of actionable negligence. They were contractors for the building of a sewer in Yonkers. The plaintiff’s intestate was an employee of the defendants-in the construction of the work. The sewer excavation at the places of the accident, which caused the intestate’s death, was a little short of sixteen feet in depth and five feet wide at the top. The excavation was protected by planks placed upright against the side; there-were placed cross pieces four feet apart between the planks. The upright planks were placed at a distance of eight feet from each other; along the top of the cut there were placed from three to six planks, horizontally, inside the uprights. Under this method of protection over half a mile of the sewer had been safely constructed. When within thirty-five feet of the end a water pipe which had been placed in the street, parallel with the sewer and within two feet 01-thereabout from the edge of the trench, bursted. There was under the public water main a small private main, placed there before the public one was put in. The accident was caused by one of these pipes suddenly bursting and filling the trench with water and thereby causing a caving in of the banks. It was a question as to which of these pipes caused the accident. The defendants had laid the public water pipe, but the case does not show that they knew of the existence of the smaller one. The public pipe could be laid without disclosing the smaller one under it. The bursting of either pipe was not one of the calamities which the contractor was bound to anticipate and guard against. There was nothing in the fact that a water pipe was within two feet of the sewer, which called for an additional safeguard against caving in. The bracing used was similar to that commonly used in constructing sewers with conditions similar to this. It was approved by the city engineer and it did not give way until an unforeseen and unexpected bursting of the water pipe occurred, in no way connected with the defendants’ employment. This pipe was along the whole excavation, and sometimes as near as it was when it broke and filled the trench with water. It appeared that the city water-pipe at the place of fracture was defective. This fact was unknown to any one before the accident. The case seems, therefore, to be controlled by Burke v. Witherbee (98 N. Y., 562). The protection was safe, judging by a safe use, until the accident happened, and then the cause was outside of the danger which could be reasonably expected by the most careful of masters. It is not necessary, therefore, to examine the question whether the accident was within the risks of the employment or the exception taken on the trial. We think the action failed upon the question of the negligence of the master.

There should, therefore, be a new trial granted, with costs to .abide event.

Dykman, J., concurred.

Judgment and order denying new trial reversed and new trial granted, costs to abide event.


text:
    ANNIE C. WILSEY, Respondent, v. FREDERICK W. FRANKLIN, Jr., and Others, as Executors, etc., Appellants.

      Recovery for household services rendered by a demghter to her mother.

    Where a daughter has, for many years after becoming of age, ceased to be a member of her mother’s family, and goes back to live with her mother, at her mother's solicitation, to do the work of nurse, housekeeper and servant, the law will infer a promise to pay for her services, the value of which is recoverable under such circumstances.
    Appeal by the defendants, upon questions of law and upon the facts, from a final judgment of the Supreme Court, entered in the office of the clerk of the county of Kings on April 19, 1888, confirming the report of a referee, in favor of the plaintiff, for the sum of $105.39, with interest, together with disbursements.

      Henderson Benedict, for the appellants.

      H G. M. Ingraham, for the respondent.
   Barnard, P. J.:

The claimant is a daughter of deceased, and her claim is for personal services rendered to her mother. The question is, whether the parties lived together and the services were rendered by one member of tbe family to another, or whether the services were to be paid for.

Deceased was a widow, over eighty years of age, and quite helpless. Tbe claimant had left her father’s family upon her marriage in 1872. Her husband died in 1879, and after his death she lived in different places; and in March, 1881, she was living in Boston. Upon the death of the husband of deceased she was left alone, and she requested her son, Stephen Mixon, to request her daughter, the claimant, to come on from Boston and take care of her. Upon this request she came on from Boston and took care of her mother for fifty weeks, when she left the family of deceased and never after-wards lived with her mother.

The referee, under the evidence, was justified in finding that the services were to be paid for. The mother was helpless and, from her age, would probably continue to be so. Her husband was dead and she was left alone. She was exacting and hard to please; “ it was a thankless task to serve her,” says one of her children. She had quarreled with the claimant upon her marriage, and this estrangement had continued until after her husband’s death. Under this state of facts she directs her son to write to the plaintiff and convey to her the request of her mother that she should come on and aid in the housekeeping.

The case is not one where a child continues with her mother after becoming of age. The claimant had for years ceased to be a member of the family, and she only went back to five, uj>on her mother’s solicitation, and then to do the work of nurse, housekeeper and servant. The plaintiff went upon the understanding of the mother, “ that she should come there with her and stay for a while.” The employment was fully proven, and the usual inference of a promise to pay should apply to it.

Neither party could have expected such services as were rendered by the claimant to her mother would be gratuitously rendered. Assuming a right of recovery, the amount of the claim is not complained of.

The judgment should, therefore, be affirmed, with costs.

Pratt, J., concurred.

Judgment affirmed, with costs.


author: Dykman, J.:

text:
    HENRY M. EMBLER, Respondent, v. THE TOWN OF WALLKILL, Appellant.

      Negligence — injury occasioned to one passing over a highway by his being struck by an over-hanging branch of a tree.

    In an action brought to recover damages alleged to have been sustained by the plaintiff while riding on the top of a load of hay along one of the public highways of the town of Wallkill, it appeared that a tree stood upon the side of the highway, and that its branches hung over the traveled portion of the road so low as to leave an insufficient space under it for the passage of a load of hay, and that this condition of affairs had existed for more than ten years; that the plaintiff, by coming in contact with such branch of the tree, was pushed off of the load of hay and precipitated to the ground and severely injured.
    Held, that these facts presented a case of inexcusable negligence on the part of the town of Wallkill, which was liable to the plaintiff for the injury resulting to him therefrom.
    Appeal by the defendant, the Town of Wallkill, from a judgment of the Supreme Court, entered in the office of the clerk of the county of Orange on the 10th day of February, 1890, with notice of an intention to bring up for review upon such appeal an order denying a motion to set aside the verdict and an order denying a motion for a new trial upon the minutes.
    The action was tried at the Orange County Circuit before the court and a jury, and a verdict was rendered in favor of the plaintiff for $6,000.

      'William Vanamee, for the appellant.

      W. F. O'Neill, for the respondent.
   Dykman, J.:

While the plaintiff was riding on the top of a load of hay along one of the public highways of the town of Wallkill, he was struck in the face by the stub of an overhanging branch of a tree and scraped off of the load and precipitated to the ground and severely injured.

This action was brought against the town for the recovery of the damages sustained by the plaintiff by reason of such injuries, and the basis of the action is the negligence of the highway commissioners in failing to maintain the road in question in a condition of safety for travelers.

The cause was tried at the circuit and the plaintiff recovered a verdict of $6,000, and the defendant has appealed from the judgment and also from the order denying the motion for a new trial on the minutes.

Commissioners of highways are charged with the duty of active vigilance and watchfulness in ascertaining the condition of the highways, and they must exercise proper care in their maintenance in a reasonably safe condition for all ordinary travel. Such are the duties imposed upon those officers by the law, and when they are not discharged and injury results to a traveler from a failure in their performance, without his fault, he has a cause of action for the damages sustained by reason of such negligence.

At the common law the towns were not liable for the negligence of such commissioners, because they are neither the agents nor servants of the town, and the commissioners were personally liable for the consequences of their own negligence, but now in this State the legislature has intervened by statutory enactment and imposed a liability upon the towns in all cases where the commissioners would be personally liable.

The statute is wise and salutary and furnishes a more certain and adequate remedy and satisfaction for injuries resulting from the negligence of public officials.

TJpon the facts and the law this is a plain case for the plaintiff. The tree in question stood upon the side of the highway and its branches hung over the traveled portion of the road so low as to leave a space insufficient for the passage of a load of hay, and that condition had existed for more than ten years. Those facts presented a case of inexcusable negligence, and there is no princijffe which will exonerate the town from the liability resulting therefrom.

The case was submitted to the jury by the trial judge in a charge which fully explained and laid down the legal principles which controlled the case, and there was no error committed upon the trial. The point respecting the liability of the city of Middletown is untenable.

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

Pratt, J., concurred; Barnard, P. J., not sitting.

Judgment and order denying new trial affirmed, with costs..