text:
    Wyman v. Smith.
    Where a debtor remits money to a third person, with directions to pay it to his creditor, and the latter, upon being informed of it, calls upon the remittee, who then positively promises to pay su.ch money to the creditor, it is a valid promise, and will support an action in favor of the creditor.
    Such a promise is not a promise to pay the debt of a third person, and is not therefore within the statute of frauds. It is a promise to pay money which the do, fendant ha.d received for the use of the plaintiff and is consequently binding.
    January 24;
    February 24, 1849.

      This was an action of assumpsit brought to recover of the defendant the amount of a bill of clothes, which had been sold by the plaintiff, a merchant tailor, to Clement Smith, a brother of the defendant, on the 37th day of July, 1844. The bill amounted to $44 75. The declaration contained the common counts. The plea was the general issue. The cause came on for trial before Sandford, J., and a jury, on the 13th of June, 1848.
    Upon the trial, the sale and delivery of the goods to Clement Smith was proved. Two clerks in the employ of the plaintiff testified to having called several times upon the defendant in reference to the bill, in the course of which interviews, the defendant admitted that he had received the money from his brother, (who resided in Alexandria,) with which to pay the bill, and that he promised to pay it. This was in the spring of 1846.
    Oil the part of the defence, it was shown by the clerk of the defendant, that he was present at one of the interviews between ■the defendant and one of the plaintiff’s clerks, when the defendant declined paying the bill, and said it was not his ; and that he also was present at an interview between defendant and the other clerk, but did not hear defendant promise to pay the bill. The witness also testified, that he kept all accounts between Clement Smith and the defendant in the year 1846; and that all funds received from the former were applied to the payment of drafts which the defendant had accepted for him ; that Clement Smith never forwarded money for the payment of this account, to the knowledge of the witness ; that the accounts between Clement Smith and his brother were generally about square, but that in May, 1846, and up to January, 1847, there was a balance due to the defendant from his brother. The balance due to him in May was $5000 or $6000. The defendant also read in evidence, a deposition of Clement Smith, taken under a commission, in which he testified that in the spring of 1846, he was indebted to the defendant, for advances made for him; that on the 20th of May, he remitted to the defendant $79 85, and on the 4th of June, $44 90, and on the 12th of June, $100 25, in payment of part of the balance due the defendant; that all the funds which he transmitted to the defends ant, were for specific purposes, and were appropriated by the defendant according to the instructions given him; and that there was at no time during the year 1846, funds in the hands of the defendant unappropriated ; that the witness never remitted to the defendant any funds to pay the bill of the plaintiff, or any bill of his whatever, nor did he ever direct the defendant to apply any funds of his to the payment of the bill, but on the contrary, positively forbid the payment of it. This witness also testified, that the defendant had drawn on him for the amount of the bill, but that he had not paid the draft.
    The judge charged the jury, that if they found that Clement Smith had remitted the money to the defendant for the purpose, and with instructions to pay this bill, which money the defend-.ant received, and that the defendant had thereupon promised the plaintiff to pay it, and had omitted to do so, then the plaintiff was entitled to a verdict. But that if the promise to pay the bill was made without any remittance of the money for the purpose from Clement Smith, or without having the funds for the purpose, then the plaintiff could not recover. The jury found a verdict for the plaintiff.

      L. R. Marsh, for the plaintiff.

      W. Curtis Noyes, and J. Brice Smith, for the defendant.
   By the Court. Vanderpoel, J.

The plaintiff claims that the facts which the jury were warranted in finding, and which they must have found to have attained the conclusion to which they came, were that Clement Smith, the brother of the defendant, was indebted to the plaintiff in the sum of $44 75, (amounting now, with interest, to over $50,) for a bill of clothes; that the defendant promised to pay it to the plaintiff after he received it; that he admitted that he had received the money from Clement Smith to pay this bill, and that he said he would pay it; and that he afterwards said, he should have paid it when he had the money.

The judge charged the jury, that if they found that Clement Smith had remitted the money to the defendant for the purpose and with instructions to pajr the bill, which the defendant received, and that the defendant had thereupon promised the plaintiff to pay it, and had omitted so to do, then the plaintiff was entitled to a verdict; but if the promise to pay the bill was made without any remittance of the money for the purpose from Clement Smith, or without having the funds for the purpose, the plaintiff could not recover.

It is contended that the finding of the jury is so decidedly against the weight of evidence, as to call for our interference on that ground. We think not. The testimony of Bennett and Joseph Wyman is strong enough in support of the verdict, to save it from being disturbed on the ground that it is against the weight of evidence. According to their testimony, the defendant admitted that he had received the money from Clement Smith to pay the bill; that it was not then convenient, but that he would pay it; that he should have paid the same when he had the money, but that he would pay. It is true that Clement Smith, in answer to the sixth interrogatory propounded to him, says, that he never remitted to the defendant any funds to pay the bill of the plaintiff, or any bill of his whatever. The jury, it seems, took the defendant at his admission, as stated in the evidence of Bennett and Wyman. And we cannot, consistently with well established rules on this subject, molest their finding, merely because we might possibly have come to a different conclusion, had we sat in their stead.

Was the charge of the judge correct ? In Weston v. Barker, 12 John. 279,) Thompson, J., says, “ If A. deliver money to B., to be paid over to 0., the latter may recover it of B., in an action for money had and received.” That case was not as strong for the plaintiff as the present. There, the defendant received from Bowen & Robbins, on the 4th of March, 1811, two policies of insurance in trust, to pay certain specified debts, and the balance to be held subject to their order. The defendant on the same day accepted the trust. On the 15th of the same month, Bowen & Robbins, being indebted to the plaintiff, gave him an order on the defendant for such balance ; of which notice was, about the. sgme time, giyep to the defendant, The defendant after wards received the amount due on the policies) and after paying the demands specified in the declaration of trust, held in his hands a balance, for which the suit was brought; and it was held, that the plaintiff might maintain an action for money had and received to recover such balance. There was not, (as in this case,) an express promise to pay the money to the plaintiff; and this, with Spencer, J., who delivered a dissenting opinion, seemed a conclusive circumstance against the plaintiff.

The defendant contends, that this is a promise to pay the debt of a third person ; and that, not being in writing, it is void; We regard it, not as a promise to pay the debt of a third person, but as a promise to pay money which the defendant had received for the use of the plaintiff, and therefore binding. In Berly v. Taylor, (5 Hill, 577,) Go wen, J., asks, “ Was there ever a doubt contained in any case, that where money was handed to B. for the uso of C., the latter may have an action for it, especially when he consents to the trust?” Again, at page 585, he puts the following case : “ A man receives money from A., with directions to pay it over to B.; is impossible, that his converting the money to his own use before B. demands it, shall defeat the claim of the latter ?”

The case of Brind v. Hampshire, (1 Mees. & Wels. 365,) has been pressed upon us by the defendant’s counsel. That tvas an action of trover for a foreign bill of exchange, drawn at Honduras. A., a resident abroad, remitted the bill to B., his agent in England, drawn by A. and specially indorsed by him to the plaintiff, with whom his children were at school, in payment of the plaintiff’s account for their board and education. B., the defendant, got the bill accepted by the drawee, and sent a letter by post to the plaintiff, stating that he had received a commission from A. to pay her some money, on account of his Children, and desired to be informed when and how it should be delivered. While the bill was in the defendant’s hands, he received directions from A. to keep it, and the proceeds in his hands, and to have a fair investigation into the plaintiff’s accounts, and after such investigation, to pay her what might be due to her. No such investigation took place, and B. detained the bill. It was held, that the plaintiff could ndt recover in an action of trover. That case turned upon a principle which has no application to the present.- There, the remitter of the' bill, before it was handed over to the plaintiff, countermanded' the order to deliver it to her j and the court held, that the direction to hand over the bill to the plaintiff remained eountermandable ■ by the remitter, until it was executed,-, either by the actual delivery of the chattel or money to the remittee, or by some" binding engagement entered into between the agent and the remittee, which gave the. latter a fight of action against the former. The defendant then was regarded as- the agent of the remitter of the bill, and had done nothing except to write to the plaintiff on the receipt of the bill, that he had received i-t, stating the purpose for which it had been remitted to him-. If the defendant had collected the amount of the bill from the acceptor,- had never received any countermand from the. remitter, and, after the receipt of the money, had promised the plaintiff to pay to her the amount so received by him for her purposes; and if the plaintiff had then brought her action for money had and received, instead of trover, there would have been a most decided similitude between that case and the present ¡ and then, to use the language of Parke, Baron, in that case, “'There would have been a binding engagement between the agent and the remittee, which gives the latter a right of action against the former.” This indispensable engagement was there wanting.

In Williams v. Everett, (14 East, 582,) there was no assent on the part of the defendant to hold the money for the purposes mentioned in the letter accompanying the remittance, but, on the contrary,-an express-refusal to do so. A privity must be established between the plaintiff and defendant, as to the subject of the demand—-an assent to execute the trust which the remitter has confided to the remittee ; and- this assent must be an express or implied promise to the person to whom the money is to be paid; and if the remittee, after receiving the money, (it never having been recalled by the remitter,) promises the person for whose purpose he received it, that he will pay it over to him, we cannot but regard it as a valid promise, and one sanctioned by the best of considerations.

In Seaman v. Whitney, (24 Wend. 260,) there was no promise on the part of the defendant to pay the plaintiff the proceeds of the draft which he had received for that purpose, and therefore? as Justice Nelson says, “ It was, at most, an attempt by a creditor to seize upon a fund placed by his debtor in the hands of a third person, with directions to apply it to the payment of a debt, without any communication with the creditor or understanding between them to that effect.” Here, on the contrary, there was a communication between the defendant and the creditor, and an express promise from the former to the latter, and therefore it comes within the view of the same judge, when he says, “ That in all cases, the principle on which the action must be maintained, if at all, is that the fund had been appropriated by an understanding between the debtor and creditor, assented to by the defendant; or by an express undertaking of the defendant with the creditor, at the request of the debtor, or both.” But in Seaman v. Whitney, the debtor was the depositor of the fund, for which the suit was brought. He placed the funds in the hands of an agent, and subsequently withdrew them ; and in this essential particular, that case is also different from the present.

On the whole, we conclude that where a debtor remits money to a third person, with a direction to pay it to his creditor, and the latter, upon being informed of it, calls upon the remittee, who then positively promises to pay such money to the creditor, it is a valid promise. From and after such promise, the relations of the parties are changed. The remittee ceases to be the mere agent of- the remitter, liable to have the fund withdrawn from his hands by the countermand of the latter. Thenceforth, he is the depositary of,the creditor’s money, holding it for. his use, and liable to him for it.

The motion for a new trial must be denied.

       In The Delaware and Hudson Canal Co. v. The Westchester County Bank, (4 Denio, 97,) it was decided, that an action might be maintained on a promise made upon a valid consideration by the defendant to a third person, for the benefit of the plaintiff, though the plaintiff himself was not privy to the consideration. Thus, where G. & S., being indebted to the plaintiffs, placed a bill of exchange in the hands of the defendants for collection, who, upon consideration thereof, under-tool? to collect it, to pay the amount when collected to the plaintiffs in satisfaction of their debt against ,G. & S., and the defendants had collected the bill; it was held, that the plaintiffs could maintain an action against them on that promise,


source: Caselaw Access Project

author: By the Court. Sandford, J.

license: Public Domain

text:
    Lay Grae v. Peterson and Wife.
    The declarations or admissions of the wife, are not competent testimony to sustain a suit against husband and wife, for the debt of the wife while sole.
    Though the cause of action spring from the wife’s act or right, her statements respecting it are inadmissible in a suit against the husband or affecting his rights, except where she acts as his agent, and then they are governed by the principles applicable to agents.
    Feb. 9th;
    Feb. 24th, 1849.
    Appeal from an assistant justice’s court. Lay Grae sued Peterson and wife for money lent to the latter while sole. The only evidence in support of his claim, was the admission of the fact by the wife, after her marriage. The defendants objected to the evidence, but it was received by the court, and a judgment thereupon rendered in favor of' the plaintiff. The defendants appealed.

      J A. Ruthven, for the appellants,
    cited 1 Halsted’s R. 366; 6 T. R. 680 ; 3 Ves. & B. 165 ; 7 T. R. 112; 2 Nott & M'Cord, 374 ; 2 Dana, 303; 2 Alabama, 339; 8 Porter, 351; 3 Iredell, 27; 16 Vermont, 560.

      E. C. Delavan and A. Thompson, for the respondent,
    cited 10 John. 47 ; 7 T. R. 350 ; 1 Campb. 189 ; 9 Wend. 238 ; 13 Wend. 273 ; 9 John. 112; 1 Cowen & Hill’s Notes to Phill. Ev. 86, and cases cited.
   By the Court. Sandford, J.

This point does not appear to have been decided in this state, but there is no doubt about it in principle. The action is really against the husband, and the wife’s statements are no more evidence against him than are those of a stranger. Where a wife acts as agent of her husband, her declarations are admissible in the same instances, and on the same grounds, that the declarations of other agents would be received. In her relation as wife merely, her declarations are inadmissible. The authorities, both direct and analogous, are abundant in support of this conclusion. We will refer to a few of them.

In Ross and Wife v. Winners, (1 Halsted’s R. 366,) the action was on a contract made by the wife before marriage, and proof of her acknowledgment after the marriage was received by the court below; and on that ground the judgment was reversed. The same point was ruled in Allan v. Pritchell, 6 T. R. 680 ; and the treatises are to the same effect, (2 Stark. Ev. 46 ; 1 Phill. Ev. 81.)

In Burgen v. Tribble and Wife, (2 Dana, 383,) it was decided by the Court of Appeals of Kentucky, that in an action of trespass for a tort of the wife, evidence that she acknowledged her guilt was inadmissible. The court say, “ though the cause of action spring from the right or the act of the wife, her declaration or acknowledgment, which would be competent evidence against her alone, is not admissible against her husband, or in a suit in which he is a party, or in which his rights, personal or marital, may be affected.” To the same effect was Hawkins v. Hatton, 2 Nott & M‘Cord, 374,

The same principle was decided in Churchill v. Smith, 16 Vermont R. 560, in an action by the landlord for money had and received to the use of the wife while sole; and in Hussey and Wife v. Elrod and Wife, 2 Alabama R. 339, in an action for an assault and battery committed by wife of the defendant on the wife of the plaintiff.

Judgment reversed.


author: By the Court. Oakley, Ch. J.

text:
    Erwin v. Smaller.
    A wife cannot be compelled to appear and be examined as a witness in a suit against her husband.
    The code of procedure allowing a party to call the adverse party as a witness, has not affected this principle, which proceeds not on the ground of interest in the suit, but on the ground of its leading to the interruption of domestic harmony and confidence.
    Feb. 17;
    Feb. 24, 1849.
    Appeal from an assistant justice’s court, where Erwin sued Smaller for money lent to his wife. At the trial, Erwin called the wife of Smaller as a witness, who was objected to by S. as incompetent, and she refused to be sworn. • Erwin then moved to strike out S.’s defence. The justice decided that she could not be compelled to testify against her husband; denied the motion to strike out, and gave judgment in favor of Smaller.

      J. H. Ehle, for the appellant,
    cited the Code of Procedure, § 344, 347, 351.

      G. Defandorf, for the respondent.
   By the Court. Oakley, Ch. J.

The only point in the case is, whether a wife can be compelled to appear and be examined as a witness against her husband. We are clear that husband and wife cannot be witnesses either for or against each other, on grounds of public policy appertaining to the domestic relations. The objection does not arise from interest in the event of the suit; but from the interruption which the allowance of such a practice would produce in the domestic harmony of the parties, and in that confidence which ought to exist in the marriage relation. The justice was clearly right, and the judgment must be affirmed.

       See Burrell v. Bull, 3 Sand. Ch. R. 15.


text:
    Wetmore v. Campbell.
    The corporation of the city of New York, under the statutes regulating the making of sewers, paving the streets, &c., may execute the work at its own expense, and then make an assessment of the expense upon the property benefited, for the first time after the work is completed.
    The circumstance, that the street commissioner in contracting for the making of a sewer, stipulates with the contractor that he shall not receive payment until the assessment laid for the purpose shall be collected, does not affect the power of the corporation to make the assessment after the sewer is completed.
    The election of the corporation as to making an estimate and assessment first, and making the sewer afterwards, or first making the sewer, and then laying the assessment, is determined by actually proceeding to execute the work before making an assessment.
    The corporate liability to pay the contract price, is, in such case, incurred to the contractor.
    The statutes do not authorize the collection of such an assessment from an occupant of premises benefited, who has not been assessed as such occupant by name.
    The authority to the corporation to appoint a person to receive the assessments, and if not paid, to levy the same by a distress warrant, is a plain authority to issue the warrant to the collector appointed to receive them.
    Where a collector, by virtue of an assessment warrant, levied upon the goods of a person not named in the warrant nor liable to pay the assessment, threatened to remove the goods, and gave him notice he would sell on a day specified, if he did not previously pay; it was held, that payment made when the collector was about to remove the goods for sale, was not voluntarily made, and that the collector was liable in trespass.
    Feb. 12th;
    Feb. 24th, 1849.
    This was an action of trover, for an iron safe and other articles of office furniture. At the trial on the 4th of January, 1849, the following facts appeared.
    The defendant on the 22d of May, 1848, levied on the goods in question in possession of the plaintiff, at his office, in the building No. 4, South William-street, in the city of New York. He gave written notice that he had levied, and would sell on the 1st of June, unless the amount demanded was previously paid with costs. On the 31st May, he went to remove the property, and as he was about to remove it, the plaintiff paid him the amount claimed and costs, to prevent the sale of the property. The levy was made by virtue of a warrant issued to the defendant, dated April 19th, 1848, under the hands and seals of the mayor and four aldermen of the city of New York, commanding him to demand and receive from the several persons named in the annexed list, or return, or who may occupy the premises, the sums of money set opposite their names; being the money assessed to them, for building a sewer in South William-street, to the sewer in Broad-street, which sum they have neglected or refused to pay, together with the interest and expenses thereon. And upon neglect or refusal of payment, the warrant authorized and required him to levy these sums of money with interest and expenses, by distress and sale, of the goods and chattels of the persons so assessed, and named in the annexed list: or those who may occupy the premises, and neglecting or refusing to pay the same; returning the overplus money (if any there should be) after deducting the sum or sums so assessed, with such interest and expenses, and the charges of distress and sale to the person, so assessed, or to his or their legal representatives.
    It further appeared that an ordinance of the corporation of the city of New York, was enacted August 5th, 1847, that a sewer be constructed in South William-street, from the sewer in Broad-street to William-street, under such directions as shall be given to the street commissioner, and one of the city surveyors. And that three persons named be, and they were thereby appointed to make an estimate of the expense of conforming to the provisions of the ordinance, to make a just and equitable assessment thereof among the owners or occupants of all the houses and lots intended to be benefited thereby, in proportion as nearly as might be, to the advantage which each might be deemed to acquire.
    The street commissioner thereupon entered into a contract on behalf of the corporation, for the construction of the sewer, dated October 7, 1847, by which it was to be completed by the 7th day of November ensuing ; and it was stipulated that the contractor should not be entitled to demand or receive payment for any portion of the work or materials for the sewer, until the money should be collected on the assessment to be laid for that purpose.
    The assessors took their oath as such on the 17th of December, 1847. Their estimate .and assessment were made subsequently, and was confirmed by the two boards of the common council, Feb. 1, and approved by the mayor, Feb. 2, 1848. It was in the form of an estimate of the expense, specifying contract, surveying, inspecting, collecting and advertising, with, a gross sum inserted against each head, and thereupon assessing the same on the property benefited. The store and lot No. 4 South William-street, were assessed in these words: —“ Description of property, store and lot; Map No., 13 ; Ward No., 1614 ; Owner, J. Brown ; Occupant, E. L. Bolles; Feet front, 18 f. 6 in.; Area square, 966—$77 88.”
    From the inspector’s certificate, it appeared the work was completed on or before the 24th Dec, 1847.
    The estimate and assessment were made by taking the contract price and the expenses incurred. The course of the street commissioner, under such an ordinance is, first, to advertise for proposals to build the sewer. These are examined by him with the committee of the common council on roads, &c., and the contract given to the lowest responsible bidder. Then the contract is made out, and signed by the street commissioner and the contractor, in conformity to the proposal. The assessment on lot No. 4, South William-street was regularly demanded of the agent of the owner before the warrant issued, and from the plaintiff before the levy.
    A verdict was taken for the plaintiff, subject to the opinion of the court.

      R. Mott and J. E. Cary for the plaintiff.

      Willis Hall, (Corporation Counsel,) for the defendant.
   By the Court. Sandford, J.

The principal point involved in the decision of this case, is the validity of an assessment for building a sewer, made for the first time, after the completion of the work. It is contended by the plaintiff, that the assessment, for the payment of which his property was seized by the collector, was invalid, because it was not made before the sewer in question was constructed, and before any contract was made for its execution.

The general principles on which the plaintiff relies, are well settled and indisputable. The authority for making and collecting the assessment, is to be proved, and cannot be presumed or intended ; and each step in the process, must be shown to have been regular, and conformable to the statute conferring the power. The grant of power under which sewers are made, streets are regulated and paved, and many other improvements are effected, which are indispensable to the comfort and health of a great city, is to be found in the act of 1813, entitled, “ An Act to reduce several laws relating particularly to the city of New York, into one act,” (2 Rev. Laws, 342, 407.) The one hundred and seventy-fifth section, in substance enacts, that the corporation of the city may cause common sewers, &c., to be made in any part of the city, and may cause estimates of the expense of conforming to their regulation for making such sewers, to be made and a just and equitable assessment thereof among the owners or occupants of all the houses and lots intended to be benefited thereby, in proportion to the advantage which each shall be deemed to acquire.

The corporation is to appoint suitable persons to make every such estimate and assessment, who are to make the same after . being duly sworn, and certify the same to the common council, and being ratified, the assessment becomes conclusive upon the owners and occupants, and a lien on the lots assessed. The common council is further authorized to appoint a person to receive the same, and the owners or occupants are declared liable to pay their respective assessments to him; and in default of payment, a warrant issues, to levy the same by distress and sale-of the goods of such owners or occupants. The section provides, that the money when paid or recovered, shall be applied towards making such sewers, &c.”

The next section of the act, (§ 176,) authorizes the corporation if it appear on the completion of the sewer or other work directed to be made, that a greater sum of money had been expended in making the work than the sum estimated and collected, as before provided ; to cause a further assessment equal to the excess, to be made and collected in the same manner. And if the sum actually expended, prove to be less than the sum estimated.and collected.; the surplus is to be returned to £-he persons from whom it was collected.

The defendant relies upon the inference derived .from these two sections, together with the first section of the act of May 14th, 1841, amending the act of 1840, relative to the collection of assessments,&c., in this city. (Laws of 1841, ch. 171, page 143.) As to the latter, it does not appear to us to throw any light on the question, whether the assessment ought to he made before or after the completion of the work.

Its scope and object are, to enable persons assessed to induce the assessors to mitigate or take off their assessment, not to oppose and defeat the construction of the work for which the burthen is imposed. This is -shown by what ensues after the objections are presented. The assessors either alter their assessment, and then all the effect and end of the .-statute directing notice is accomplished, or they decline to alter it, in which event they are to present the objections with 'their assessment to the common council, for their .action. If the common council confirm it? that is the end of .the matter. If the assessors alter the assessment so as to meet the views of the persons.objecting, the altered assessment is prssented to the common council without the objections, and is confirmed as a matter of course., _

Again, the ordinance directing these improvements, is enacted and becomes a law, before any step can be .taken under the 175th section towards making the estimate and assessment. Whatever may be the result of the assessment, the work itself is to be executed, unless the ordinance be repealed, or the municipal authorities take it upon themselves to nullify it If one assessment, on being presented for confirmation, be returned to the assessors for correction by the common council, it is their duty to make another; and to proceeduntil'one be made, which the common council will confirm.

The notice under the act of 1841, it is therefore quite obvious, was not intended to elicit objections to a proposed improvement or public work. We understand, that in addition to the officia publication of the proceedings of each board of the common council, a very reasonable opportunity is in practice presented for interposing such objections, by the notices published by the street commissioner, giving information of the application to the common council for the construction of all public works of this description, pursuant to the seventeenth section of the city ordinance regulating his department.

If any person interested wish to oppose the making of the improvement, his course is to satisfy the board before which it is pending, or the committee to which it is referred, that the expense of the undertaking will exceed its benefit; or present such other reason as he may have for his objection. The board or the committee, if there be any doubt, may direct an estimate to be made, or resort to any other measure for their information ; but all this, to be effectual, should precede the ordinance.

To return to the act of 1813, it is a direct inference from the provisions stated, that the estimate and assessment for a sewer should be made before entering upon its construction, although the advantage of such a proceeding may not be quite so apparent ; and if there was no other enactment on the subject, it would remain to inquire how the omission affects the validity of the assessment.

We are referred by the defendant’s counsel to the two hundred and seventieth section of the same act, which authorizes the Corporation, in all cases where they may deem it necessary for the more speedy execution of the said by-laws or ordinances, or any of them, to cause all such works as may be necessary for any of the purposes aforesaid, to be executed and done at their own expense, on account of the persons respectively upon whom the same may be assessed and to levy the same by distress and sale of the goods of the owners or occupants of the property assessed, or to recover the assessment by action. The next section makes the amount so expended by the Corporation, an incumbrance ón the houses and lots assessed.

These sections are found under the head of “ Additional powers granted to the Corporation,” commencing with section 266 of the act of 1813. Section 267 gives to the Corporation power to make by-laws and ordinances for filing, draining and regulating sunken, damp or unwholesome grounds, yards or cellars ; for filling water lots on the river fronts, and for making bulkheads and filling slips, and the like. The 269th section authorizes the Corporation to cause the expense of such works- to be estimated and assessed in the same manner as is directed in that act with respect to regulating the public streets.

It is argued on the part of the plaintiffs, that sections 270 and 271, are confined to the cases of sanatory regulation, authorized by the previous sections, where the public health requires speedy action, and do not extend to aiiy other public works or improvements.

As to this argument, the authority is not in terms so restricted, and we are not at liberty to assume that such was the intention of the legislature. The discretion to cause the work to be executed at the corporate expense is unlimited, unless it is confined by its immediate- connection with the 267th section, to the class of works authorized by that section. We need not consider the point, because the act of February 21st, 1824, (Laws of 1824, ch. 49, page 39,j was passed for the express purpose of removing all doubt on the subject. By the first section of that act, it is enacted, that the two hundred and seventieth section shall apply to all and every law, ordinance, order and direction, which the corporation is authorized to make, under and by virtue of the general act of 1813, or of any other act of the legislature. That section 271 shall in like manner apply thereto, and the assessments for the expense of the work ordered to be executed, may be made as directed in the 175th section of the same act, and may be enforced as is mentioned in the act of 1824.

The effect of these several statutory provisions, is to authorize the corporation, whenever an ordinance has been adopted for the construction of a sewer, or similar public work, to pursue either of two courses.

First, they may have an estimate andjfassessment of the probable expense made,! confirmed and collected; and then proceed to the -execution of the work. Or, second, they may execute-the work at their own expense, and after its completion and the actual cost is ascertained, they may assess the same with «he charges, upon the' houses and lots benefited, and collect such assessments as before.

In> reference to the first mode, as no preliminary estimate made in good faith, will, in one instance out of twenty, correspond precisely with' the result1 of the actual expenditure, in nineteen eases out of twenty, there will have to be either' a second assessment made and collected to-supply the deficiency or a surplus will' have to be returned’ to the parties assessed. The corporation would never undertake" the burthen of seeking out such parties- to refund their proportions; many of them would never hear of the surplus; the rights of others would he transmitted by death, insolvency or assignment, so as to make the collection of their proportions difficult or embarrassing; and the practical effect of the system would be, that all the original estimates would he with a wide margin to cover contingencies, and in order to avoid a second assessment, a surplus would be collected almost invariably, and a large portion of it would remain in the city treasury,- either uncalled for, or the occasion of perplexing claims.

Such, it appears to-us, will be the legitimate consequence of pursuing the mode derived by inference from sections 175 and 176 of the act of 1813; The other mode; in terms, requires the corporation to execute the work at their own expense in the first instance. No greater liability is incurred in the one mode than in the other. In both, the corporation is to be fully indemnified by the assessment. The difference is, that in theory, the money in the one case is collected and in hand, before the occasion for disbursing it arises ; while in the other case, the corporation advances the entire expenditure, and is subsequently reimbursed.

in its actual working, the former mode would be difficult, if not impracticable; giving to the plaintiff 7s argument its full Weight, and assuming that all the assessment must be “paid or recovered,” before the work can even be contracted. In most of the city improvements falling within the 175th section, the assessments are in part imposed on vacant lots. These, in many instances, (w'e might safely say, in most instances,) cannot he collected of the owner personally. The only remedy is to collect them by the slow process of a sale of the lands assessed under the statute; and in the meantime the improvement, which has been ordered because of its present necessity, is deferred for an indefinite period.

We have traced these consequences of the two different modes of procedure permitted to the corporation, not because the inconveniences of the one, or the advantages of the other, can bend or control the statute, or authorize us to infer a power not definitely granted; but because they exhibit the object of the legislature in the passage of the act of 1824, and warrant us in giving a fair and liberal construction to its provisions.

Much stress was laid upon the necessity and importance of an estimate, as distinguished from the assessment. We have seen that the importance of the estimate, properly so called, precedes the passage of the law or ordinance. After the work is decreed to be made, the assessment making a just apportionment of the burthen, becomes the only material point of interest to the parties concerned.

There is no force in the plaintiff’s argument that section 270 of the act of 1813, merely changes the time of collecting the money, and does not refer to the time when the assessment shall be made. If we were to construe that section by itself, we could not hold that it required a conjectural assessment to be made before entering upon the work, which was not to be collected until the work was completed and the expenses all paid. The act of 1824 is, however, perfectly clear on this point. It is not the estimated cost, but the expense actually incurred with the interest, which is to be assessed on the owners or occupants.

Next, it is urged that in the case at bar, the corporation has manifested no intention to proceed under the 270th section, and the act of 1824. On the contrary, it is said, that instead of having the sewer constructed at their own expense, they expressly stipulated that the contractor should not receive any payment until the money should be collected on the assessment laid for that purpose.

1st. As to the intention manifested. The ordinance in question requires the construction of the sewer under the directions of the street commissioner and qne of the city surveyors, and appoints the street commissioner and two others to make the estimate and assessment. It is not questioned that it is the duty and the province of the street commissioner, to make all contracts for the construction of sewers ; and he made the contract in this case. Thus, he and the assessors were clothed with all the' discretion which could be exercised by the corporation, in adopting the one or the other of the modes for making the assessment which we have considered. They adopted the course of building the sewer first, and making the assessment after it was completed.

The common council confirmed the assessment, and thereby ratified what had been done. Hence, there is no doubt as to the intention of the corporation, to pursue the authority conferred by section 270 of the act of 1813, in connection with the act of 1824.

2d. But it is said, they have not constructed the sewer at their own expense; which means, they have so contracted as to avoid advancing the money; and it is alleged that the necessary effect has been to enhance the cost of the work. This ' may be, and probably is, the effect in some small degree, although we have no proof of it; and the enhanced expense we suppose, is not much greater than a second assessment would occasion. The same consequence would ensue from another and legal course, which we will presently mention; and the argument db inconvenienti, is neither very forcible, nor peculiar to the obnoxious proceeding. We ought also to observe that the work was advertised, and the proposals received, without the qualification which appears in the contract.

Our view of the matter is this. The jurisdiction of the corporation, is not to be determined by the circumstance of actual or constructive payment. The election to proceed in one mode or the other, is determined by actually proceeding, to execute the work before making an assessment. The corporate liability to pay the contract price was in this case incurred to the contractor. He had no claim or demand against any other person, natural or artificial. If the corporation should fail to make an assessment, and collect it in a reasonable time, or if from any cause, they should proceed irregularly, so as to fail in making a valid assessment, the contractor would be enabled to recover the value of his services, notwithstanding the restriction in the contract, upon his demanding payment.

Suppose the corporation had agreed to pay the contractor in one year after date, with interest from the time fixed for the completion of the work; would any one doubt that an assessment could be made and collected after the work was done 1 Yet there would be no actual advance of money, and in respect of enhanced cost, the operation would be more open to observation than the contract made in the case before us.

This shows that the time and manner of defraying the expenses, when the corporation proceed under the 270th section, is not a test of their power to make an assessment. The statute does not restrict the corporation to any particular mode or form of liability; it does not require payment in cash during the progress, or at the completion of the work ; and it does not preclude the use of the corporate credit, either in an absolute or a qualified liability.

If there be any undue or injurious latitude allowed by the act to our municipality, the legislature must correct it. We cannot find in its supposed existence, a warrant for the narrow construction put upon the 270th section by the plaintiff’s counsel. If the mode and terms of payment adopted, be calculated to increase the expense, it may furnish a reasonable ground for objecting before the assessors to the imposition of the whole amount upon the property benefited. But we are satisfied that the validity of the assessment, the power to make any assessment, cannot depend upon the fact of payment by the corporation to the contractor, so long as they have the right, either to assess and collect the probable expense first, and then execute the work, or to execute it first and assess and collect afterwards.

If in the former mode of proceeding, the corporation should, after collecting the money, execute the work upon a long credit, the parties who have paid the assessment would have no redress ; and if a further assessment became necessary, the improvident use of the fimds first collected, would not affect or impair its validity. And if the latter mode be adopted, it suffices for the parties interested, that an ordinance has directed the construction of the work, the work has been completed, and they are not responsible in any mode to the builders.

It is important to such parties, as well as to all who are interested as tax payers in the city expenditure, that sound discretion, good judgment, and rigid economy, be exercised in contracts for the public works and expenses of all kinds; but the disregard or omission of all these qualities, cannot affect the jurisdiction of the corporation to impose and collect the taxes and assessments authorized by law for defraying such expenditures.

Each party refers us to the adjudged cases, as sustaining his view of the law on this question. We do not find any reported cases in which it has been considered in connection with the act of 1824.

In Elmendorf v. The Mayor, &c., of New York, (25 Wend. 693,) the application was for the allowance of a certiorari, to review certain assessments for regulating and paving streets, and it was refused because of the lapse of time. The motion was made at the special term before Nelson, Ch. J., who, in noticing some of the points raised against the validity of the assessments, declared his opinion that an estimate should have been made before the work was commenced, but that an assessment could be made even at that day; that there was nothing in the act of 1813, making it expressly, or of necessity, a condition precedent.

In Doughty v. Hope, (3 Denio, 249,) it was decided at the circuit, that the assessment was void, because it was made after the improvement was completed, instead of its being made before the work was commenced. This decision was reversed by the late supreme court, which held, ¿hat although the estimate and assessment ought to precede the improvements, upon the construction of sections 175 and 176 of the act of 1813; yet the statute is in that respect directory to the corporation, and the omission to pursue it, did not invalidate the assessment. The case was finally decided in the court of appeals, on other grounds. (3 Denio, 594; 1 Comstock’s R. 79.) It stands as the direct adjudication of the late supreme court, to the effect that an assessment, like the one before us, is valid, independent of the act of 1824, and the 270th section of the act of 1813.

We are not aware that there has been any different ruling in the present supreme court, and if there had been, we should necessarily have conceded to the former court the meed of authority. We were induced to give the subject a full examination upon the construction of all the statutes, irrespective of the adjudications, because of its magnitude, and the variety of interests involved; and our conclusion is clear, both on principle and authority, that the assessment in question was legal and valid.

The next point of the plaintiff is, that he was not assessed, and there was no authority for collecting the assessment of him. It appears that in the assessment roll, J. Brown is described as the owner, and E. L. Bolles as the occupant of the store and lot, in respect of which the assessment or charge collected of the plaintiff was imposed. The warrant under which the defendant levied, directed him to collect from the several persons named in the assessment list, “ or who may occupy the premises.” The plaintiff was an occupant of the lot assessed.

Does the statute authorize the collection from an occupant, - who has not been assessed as such by name ? The expense of the improvement is to be assessed among the owners or occupants of the houses and lots benefited. As we understand it, this can only be done, as to occupants at least, by describing them as such in the assessment list, and designating them by name. So the assessors, in this instance, appear to have understood the law, and they assessed Brown as owner, and Bolles as an occupant. When confirmed, the assessment becomes binding and conclusive on the owners and occupants of the lots charged ; of course, upon the owners and occupants designated in the rate or list so confirmed.

"It would be absurd to say, that it becomes binding and conclusive upon a tenant who first comes into the occupation after the assessment has been confirmed.. The law might be so framed as to include all future occupants, but so far as we have now traced its provisions, it clearly does not embrace them.

Then, as to the subsequent proceedings, “ such owners and occupants,” are declared liable to pay upon demand, and in default of payment, the warrant issues to levy the assessment by distress of the goods “of such owner or occupant.” We think this clearly means, the occupant assessed 6as such in the list by name, and not any person not named, who may chance to be occupying the premises when the collector visits them.

The authority to issue such a roving distress warrant, may be granted, if the legislature deem it necessary; but it cannot be established by remote inference, still less from its expediency in a given case. Under the statute in question, it is incumbent on the assessors to ascertain the names of occupants, if it be intended to resort to them for payment. If they are not inserted in the list, the assessment must be collected from the owner, or from the land. In Doughty v. Hope, before cited, it was held at the circuit, that a warrant like this could not issue against an occupant not named ; and the supreme court acquiesced in that opinion, although the point was not decided. The inconvenience to an outgoing tenant, assessed as occupant, which has been suggested, is no greater than the incovenience which may occur, on the defendant’s construction, to one who comes in long after the assessment has been confirmed, and who never hears of it till his goods are seized by the collector. The former, in theory at least, has notice of the making of the assessment, and can protect himself under the 175th section of the act of 1813.

The warrant, in our judgment, went too far in directing the collector to distrain upon occupants who were not named in the list; and as this defect appeared on its face, it constitutes no defence to the collector for levying upon the plaintiff’s goods, within the principle of the authorities cited in behalf of the defendant.

It is said, that the defendant was not a public officer, authorized to execute the warrant. We think this criticism is too refined. The statute authorizes the corporation to appoint a person to receive the assessments ; and if not paid, to levy the same by a distress warrant. The intention is plain, that the warrant should issue to the collector. If otherwise, it must issue to some person, and the collector is eligible to perform the duty.

The defendant contends that the action cannot be sustained because^ the payment was justly due from the plaintiff, it was voluntarily made, and no tresspass was committed. The facts are, that the collector levied on his goods by virtue of a warrant against other persons, issued for a debt, which he was under no obligation to pay; threatened to remove the property, and gave him written notice that he would sell it on a specified day, if he did not previously pay the demand. The plaintiff paid it when the collector was about to remove his property for sale. We have no doubt that the defendant is liable in trespass.

The plaintiff is entitled to judgment on the verdict, on the ground that he was not named in the assessment list as occupant of the store and lot assessed.

Judgment accordingly.