author: Van Brunt, P. J.: Ingraham, J. :

text:
    BUTLER H. BIXBY, Plaintiff, v. THE MAYOR, ALDERMEN AND COMMONALTY OF THE CITY OF NEW YORK, Defendant.

      Increase of salary of New York police justices — payment of, legalized by chapter 412, Laws of 1888— that act did not give a right of action to recover such increase by one to whom it had not been paid — a claim must be presented under chapter 410, Laws of 1882, section 1104, after the right of action arises.

    A board of aldermen of the city of New York, on the 24th day of December, 1869, passed a resolution making the salary of a police justice of said city, then $5,000 per annum, the same as that of the city judge, which was $10,000 per annum. The mayor did not approve the resolution, which was returned to said board on December thirty-first, and no further action was taken upon it.
    Between January 1, 1870, and September 1, 1871, such increased -salary was, notwithstanding, paid to the police justices. By chapter 412, Laws of 1888, these increased payments during said period were declared to be lawful, and the above-mentioned resolution was, by that act, legalized, ratified and confirmed.
    In an action brought by a former police justice of said city, who, during a portion of said period, was paid at the rate of $5,000 per annum, to recover such increased salary for the remainder of that period:

      Held, that he could not recover.
    That the ratification of said resolution contained in said act was only for the purpose of protecting the city officials who had made such unauthorized payments from being sued therefor; that it only validated said resolution to that extent, and afforded no ground of action to one who had never been paid the increase-of salary.
    That this was more evident from the fact that prior to the passage of the act of 1888 the Court of Appeals had held that the city could not recover from said justices the amounts paid for such increase of salary.
    That if it should be assumed that the act of 1888 had the effect claimed by the-plaintiff, then his cause of action first arose when said act of 1888 was passed, and that, as his action was commenced before the passage of said act, his claim had not been duly presented, before action, to the comptroller of said city, and that he could not recover.

      Exceptions of the defendant, the Mayor, Aldermen and Commonalty of the City of New York, ordered to be heard in the first instance at General Term (the entry of judgment being in the meantime suspended), after a verdict for the plaintiff for $22,209.94 had been directed by the court upon a trial had before the court and a jury at the New York Circuit.

      Grate Nathan, for the plaintiff.

      D. J. Dean, for the defendant.
   Van Brunt, P. J.:

This action was brought to recover an alleged balance of salary, from January 1, 1870, to November 1, 1873, due to the plaintiff asoné of the police justices of the city of New York. Upon the trial the plaintiff alleged that the salary of the office was $L 0,000 per annum, payable in monthly installments; and that he was paid the salary named until the 31st of July, 1871, from which date to the 1st of November, 1873, he was paid at the rate of $5,000 per annum. The defendant denied that the salary was $10,000 per annum, and alleged that such salary was $5,000, all of which had been paid.

To support the allegation that the salary was $10,000 the plaintiff proved that on the 31st of December, 1870, the salary of the city judge was $10,000 per annum, and that on the 20th of December, 1869, a resolution was passed by the board of aldermen to fix the salary of the police justices at the same rate as was then paid to the city judge.

The resolution was adopted by the board of assistant aldermen on the 24th of December, 1869, and sem to the mayor. The resolution was returned by the mayor to the board of aldermen on the 31st of December, 1869, without his approval or objections thereto, and no further action was taken thereon.

The defendant objected to the admission of the resolution upon the ground that it never became a law, because it had never been approved by the mayor, or had not remained in his office ten days without action ; neither had it been passed by a two-thirds vote, or otherwise, after being sent back to .the common council.

The court held that the resolution had become validated by an act of the legislature passed in 1888, and known as chapter 412 of the laws of that year, and overruled the objection, to which ruling the defendant excepted.

The plaintiff then proved that demand was made by the claimant at the end of each month during the period covered by the claim. The defendant objected that at the time such demands were made the plaintiff had no valid claim, which objection was overruled, and defendant excepted.

At the close of the plaintiff’s case the defendant’s counsel moved to dismiss the complaint; the motion was denied and exception taken. A verdict was directed for the plaintiff for the principal and interest of the claim, and defendant excepted. The court made an order that the exceptions should be heard in the first instance at the General Term, the judgment in the meantime to be suspended. There are questions presented by this appeal as to the constitutionality of the act which will hereinafter be discussed, and also questions as to the right to maintain this action, no demand having been made after the passage of the act, which it will not fie necessary for us to consider in view of the conclusion we have reached in construing the act in question.

In Cox v. Mayor (103 N. Y., 519), it was held that the common •council had no power to increase the salary of the police justices, as they attempted to do by the so-called resolution of December, 1869,. above referred to. And it was further held that the payment of the increase to the police justices, which had been continued for some time, could not be recovered back by the city because the money was received in good faith; there was no mistake of facts, and the payments were made voluntarily by the city officials out of moneys lawfully placed in the city treasury for that purpose. Subsequently, in May, 1888, the legislature passed an act (chap. 412), which provided that all payments made by the mayor, etc., from January 1, 1870, to September 1, 1871 (those being the dates between which the increase had been paid by the city), to the persons then police justices at the rate of salary fixed by resolution of the common council, dated December 31,1869, were declared to be lawfully paid, and said resolution was thereby legalized, ratified and 'confirmed. It is claimed that, by this legislative action, life was breathed into .this resolution as of the time when it was originally passed, and that the plaintiff and others who were then aetingas police justices might recover the salary remaining unpaid at the rate of $10,000 per annum.

We think upon an examination of the act, in view of the circumstances under which it was passed, that no such construction can be put upon it. In the construing of statutes the principle is well settled that the legislative intent must govern even where such construction seems to run counter to the letter of the law. (People ex rel. Wood v. Lacombe, 99 N. Y., 45, and cases cited.) It is not to be presumed in the construction of this act that the legislature intended to make a gift to the persons who occupied the office of police justice between the 1st of January, 1870, and the 1st of November, 1873, and if any reasonable construction can be placed upon the act without giving it this interpretation, it certainly should be done.

It appears that the city officials had, without authority, been paying the alleged salary to these police justices; they, perhaps, were amenable to the city to the extent of the excess in payment, and it would appear that this legislation was intended to protect them against such liability, and for no other purpose, because the reference to payment in that act could have no other effect, as it had already been decided by the Court of Appeals that the city could not recover back from the justices the excessive salary paid to them. The latter, therefore, needed no protection.

Having this in view, the legislation becomes entirely intelligible' and consistent. The provision was for the purpose of protecting the city officials in the payments which had been made, and it> therefore, declared that all these payments had been lawfully made, and said resolution legalized, ratified and confirmed, so far as these payments were concerned.

There was evidently no intention, as has already been stated, to make a donation in excess of that which they had already wrongfully received, to the persons who happened to be occupying the office of police justices during this period. Unless the intention of the legislature was as has been hereinbefore indicated, then all reference to this question of payment in the act was absolutely senseless, and the legislature is not to be presumed to have legislated upon a subject without some meaning or object.

We think that the true construction of the act limits the ratifica■tion of the resolution to the legalization of the payments which had been made, and forms no basis for the claim presented by the plaintiff.

The exceptions should be sustained and new trial granted,, with -costs to defendant to abide the final event.

Daniels, J., concurred.

Ingraham, J. :

I concur with the^presiding justice in his construction of the act •of 1888, and I think it clear that the plaintiff-is not entitled to recover.

The act of the common council in attempting to pass the resolution, known as the resolution of December, 1869, was without authority. Their act was, therefore, void, and there was no resolution passed.

The legal salary of plaintiff was $5,000 per year; for that he was to perform the services required of him by law as police justice, and he received such compensation for such services.

In 1888, when the act in question was passed, there was no resolution in existence, but for a certain period plaintiff had been paid upon the assumption that the resolution fixing such salary at $10,000 per year was legal.

The act proceeds to legalize such payment, and declared that the plaintiff was lawfully paid the amount that he was paid under the authority of the void resolution. The act then provides that said resolution is hereby legalized, ratified and confirmed.

Now, for the first time, there is a legal resolution ; for the first time there is anything that is binding upon the municipal corporation. ■There is no intention expressed that the act should have retroactive effect except so far as to legalize the payments that had been actually made, so that the position is, that on May 26, 1888, a resolution is adopted whereby it is resolved that the salary of each of the police justices be and is hereby fixed at the same rate as now paid to the city judge.”

The services that the plaintiff had rendered, and for which he seeks to recover in this action, had been rendered and his term of office had expired long prior to the passage of the act. This act, if it was to take effect as of the date of its passage, could not affect his right to compensation rendered before it was passed.

Had it been the intention of tlie legislature to give, by the mere legalization of the void resolution, the retroactive effect claimed by plaintiff, the legalization of the payments by the city officers would have been unnecessary; all that would have been necessary would have been to legalize the passage of the resolution as of the date at which it was attempted to be passed, and when the legislature provided that the payments made on tlie assumption that the resolution was valid should be legalized and then proceeded to legalize the resolution, I think that the act, so far as it was to have any effect prior to its passage, must be confined to the express provision of the statute legalizing the payments.

The act of the legislature in legalizing the resolutions is not the act of the principal ratifying an act of an agent whereby the agent had assumed to act for his principal without authority. When the common council attempted to pass the resolution they assumed to act under power delegated to them by the people of the State. Such power had not been delegated, consequently their act was void.

Subsequently the legislature, notwithstanding the common council had no power to do what they attempted to do, in 1888 legalized the resolution, then making it a legal resolution, and it could only be effectual from the time it was legalized.

But, assuming that the act had the effect claimed by plaintiff, the cause of action for the salary unpaid arose only when the act legalizing the resolution was passed, and this action was commenced prior to that time, and without presentation of the claim to the comptroller when it was a legal claim and the city was bound to honor it.

When the action was commenced, therefore, there was no liability of the city, and no cause of action against the city existed. I concur, therefore, with the presiding justice that a new trial should be ordered.

Daniels, J., concurred.

Exceptions sustained and new trial granted, with costs to the defendant to abide the final event.


source: Caselaw Access Project

author: Ingraham, J.:

license: Public Domain

text:
    JULIUS J. FRANK, Respondent, v. EDWARD A. DAVIS, Appellant.

      Fm'edosure — a deficiency judgment cannot be granted until a sale has been had in the action in which the judgment is sought firr.

    The holder of a second mortgage upon the property of one Davis brought an action to foreclose the same, and obtained a judgment of foreclosure and sale therein. Pending appeals from such judgment of foreclosure the holder of a first mortgage upon the same property foreclosed it and sold the premises, from which sale there resulted a surplus, which was paid to the holder of the second mortgage, leaving a balance still due to him under his mortgage.
    Upon an application made by him for an order directing the entry of a deficiency judgment for such balance:

      Held, that section 1627 of the Code of Civil Procedure was the only provision of law authorizing a money judgment against a defendant in a foreclosure suit. That that section required that a sale of the premises be first made.
    That the court had no power to award such a judgment where a sale had been directed but had not taken place.
    That the fact that after the entry of judgment the court had, in another action, directed the sale of the same premises, did not enlarge the jurisdiction of a court of equity in the premises, or authorize it to grant a remedy which, in effect, was granting a money judgment in an action at law upon the bond.

      Loeb v, Willis (22 Hun, 508) followed; Siewert v. Hemnel (33 id., 41) disapproved.
    Appeal by the defendant Edward A. Davis from an order made at the New York Special Term, and entered in the office of the clerk of the city and county of New York on the 27th day of July, 1891, granting a motion made by plaintiff directing the clerk to enter a judgment for deficiency against the defendant for the amount due to plaintiff upon a bond given by the defendant (as collateral to which a mortgage had been given to the plaintiff upon certain real estate), less the amount of the surplus moneys arising in another action brought to foreclose a prior mortgage upon the same premises.

      B. N. Ca/rdozo, for the appellant.

      Samuel W. Wise, for the respondent.
   Ingraham, J.:

This action was brought to foreclose a mortgage upon real property, and the judgment demanded in the complaint was for the usual relief granted in such action, viz.: That the property be sold and the proceeds applied to the payment of the amount due to plaintiff, and that the defendant pay any deficiency. The case was-tried and the plaintiff recovered a judgment as prayed for, which was affirmed by this court and subsequently by the Court of Appeals.

It appears that there was also a mortgage upon the same premises which was a lien prior to the mortgage foreclosed in this action, and that, pending the appeals from the judgment in this action, such prior mortgage was foreclosed and the property sold under a judgment in the action brought for that purpose; and that there was a surplus over the amount required to pay the amount due on such prior mortgage, which was paid to the plaintiff, leaving a balance due to the plaintiff of $3,081.28, for which sum this court at Special Term directed a deficiency judgment to be entered against the defendant.

In determining this question, it is important to bear in mind the distinction between this action and an action upon the defendant’s bond, to secure which the mortgage was given.

An action upon the bond would be an action at law in which the plaintiff would be entitled to a trial by jury. This action is in equity, and a court of equity obtains jurisdiction because the aid of that court is necessary to direct a sale of the mortgaged property so that the lien of the mortgage can be enforced, and, having acquired such jurisdiction, the court then gives to plaintiff all the relief to which he is entitled, including a judgment for any deficiency which would arise because of the insufficiency of the proceeds of such sale to pay the amount due to the plaintiff.

An action to foreclose such a mortgage, and the power of the court to order a personal judgment for such deficiency, is regulated by sections 1626 to 1637 of the Code.

By section .1626 it is provided that, in an action to foreclose a mortgage upon real property, if plaintiff becomes entitled to final judgment, it must direct the sale of the property mortgaged. And by section 1627, that any person who is liable to the plaintiff forth© payment of a debt secured by a mortgage may be made a defendant in the action, and if he has appeared, or has been personally served with the summons, the final judgment may award payment by him of the residue of the debt remaining unsatisfied after the sale of the mortgaged property and the application of the proceeds, pursuant to the directions contained therein. This section contains the only provision by which - the court is authorized to award judgment in an action of foreclosure for the recovery of the money against any defendant.

It seems to me clear that, in an action to foreclose a mortgage, no judgment could be entered, except one directing the sale of the property. If, before the entry of final judgment, the property had been sold under the foreclosure of the prior lien, so that the lien of the mortgage sought to be foreclosed had been destroyed, no judgment could be entered in favor of the plaintiff for the amount due upon the bond, because the lien sought to be foreclosed having been destroyed by virtue of the foreclosure of the prior lien, there could be no sale of the property mortgaged, as provided in section 1620.

The jurisdiction of a court of equity, which was acquired in order to sell the property and apply the proceeds to the payment of the mortgage, ended when such a sale was impossible, and there could be no judgment against the defendant for the residue of the debt remaining unsatisfied after a sale of the mortgaged premises and the •application of the ¡proceeds, as there could be no sale and no proceeds to apply.

Nor does the fact that, prior to the destruction of the lien of the mortgage, to foreclose which the action was brought, a judgment had been entered directing the sale of such property give the court power to direct by a subsequent order a personal judgment against a defendant for the whole or any part of the amount due on the bond, to secure which the mortgage was given. This would be turning an equity action into a common-law action, when the facts, -which alone gave the court of equity jurisdiction, had ceased to -exist, and would be contrary to the provisions of the only judgment that the court has authority to enter in such an action.

The judgment, as actually entered in the action, provides that, if .the proceeds of the sale thereby directed be insufficient to pay the ¡amount and interest, that the defendant pay to plaintiff the amount of such deficiency.

It is only in the event of the sale, and a failure of the proceeds realized therefrom to pay the amount due, that the defendant was ■ordered to pay anything to plaintiff; and there having been no sale •of the premises in this action, according to the terms of the judgment, there was nothing that the defendant was required to pay-plaintiff, and, as before stated, the court had no power in this action to grant any other personal judgment against the defendant, except -the one contained in tlie judgment, and which does not, in terms, make the defendant liable for the amount of the bond until there has been a sale of the mortgaged premises under the judgment and the application of the proceeds realized upon such sale to the amount due on plaintiff’s mortgage.

It is evident that Mr. Justice Barrett, who granted this order, did so only because he considered himself bound by the case of Siewert v. Hamel (33 Hun, 44), and it would seem that that case was an authority for the order.

The contrary view, however, has been taken by this court in the case of Loeb v. Willis (22 Hun, 508).

In the opinion in the the case of Siewert v. Hamel (supra) no reference is made to the sections of the Code under which the judgment in this action was granted; and as it is clear that the court had no power to grant the order, I think we should follow the eai’lier case of Loeb v. Willis.

It follows, therefore, that the order appealed from -should be reversed and the motion below denied. As, however, the application was justified by the case above cited, it should be without costs.

Van Brunt, P. J., and-Daniels, J., concurred.

■Order reversed and motion denied, without costs.


author: Ingraham, «T.:

text:
    In the Matter of the PEOPLE OF THE STATE OF NEW YORK ex rel. LOUIS W. SCHULTZE, one of the Coroners of the City and County of New York, v. THEODORE W. MYERS, Comptroller of the City of New York.

      The New York city consolidation act — chap. 410, Laws of 1882, sec. 56 ~ a coroner of said city must pay to the city any fees received by him while acting as sheriff.

    The consolidation act, relative to tlie city of New York (chap. 410, Laws of 1882), provides, in section 56 thereof, that no officer or person who is paid a salary from the city treasury shall receive any fees, costs, or anything of that nature, but that the same shall be the property of the city; that a person so receiving the same shall make a return thereof before he shall be paid his salary, and that the comptroller of said city may require such a return.
    A coroner of said city received certain fees while acting as sheriff in replevin proceedings, and claimed such fees as his personal property. The comptroller thereupon refused to pay his salary.
    Upon a proceeding by mandamus to compel such payment:

      Beld, that the coroner was a city officer, and was not entitled, under said section 56, to retain such fees, nor to be paid his salary until he had complied with the provisions of the said act.
    The history of legislation upon this subject reviewed.
    Appeal by tlie relator, Louis W. Scliultze, one of the coroners of the city and county of New York, from an order, entered in the office of the clerk of the city and county of New York on the 15th day of August, 1891, denying his motion that a writ of peremptory mandamus be issued, directed to the comptroller of said city, ordering him to pay the relator’s salary as such coroner.
    The comptroller refused to pay the salary to the relator because of the refusal of the latter to pay into the city treasury certain fees received by the coroner for services rendered by him while acting for the sheriff.

      I). P. Hays, for the relator, appellant.

      Theodore Connolly, for the City of New York, respondent.
   Ingraham, «T.:

Prior to the year 1878, the coroners of the city and county of New York were paid for their services by fees regulated by statute. For certain of the services rendered, the fees were paid by the county of New York, and when called upon to perform the duties of sheriff they were entitled to receive the same fees as paid for such services to the sheriff, and to be paid in like manner.

By chapter 304 of the Laws of 1874, the county of New York, and the corporation known by the name of the mayor, aldermen and commonalty of the city of New York, were consolidated into one body corporate and politic, and by the second section of that chapter it was provided that, “ for all purposes, the local administration and government of the city and county of New York shall be in and be performed by the one corporation aforesaid. All charges and liabilities now existing against said county, or which may hereafter arise or accrue in said city and county of New York, and which, but for this act, would be charges against or liabilities of said county, shall be henceforth deemed and taken to be charges against or liabilities of said corporation, and shall be defrayed or answered unto by it.” And after the passage of this act the liability for the fees of the coroners became a charge against the city and county of New York.

By chapter 256 of the Laws of 1878, it was provided that each of the coroners of the city and county of New York after his election should be paid, in full satisfaction for his services, a yearly salary of $5,000, and that salary and certain allowance should be in lieu of all his fees or compensation theretofore a charge upon the county of New York, or the mayor, aldermen and commonalty of the city of New York.

The effect of this legislation substituted a fixed salary of $5,000 in lieu of the obligation of the city and county of New York to pay to the coroner the fees which prior to that time he was entitled to receive from the county of New York or the municipal corporation, but he was still entitled to receive for his own use the fees paid to him for services rendered, which theretofore had not been a charge against either the county of New York or the municipal corporation. In 1880 an act was passed, which was entitled “An act to amend chapter 335 of the Laws of 1873 ” (the city chai’ter), “ and to reduce the burden of taxes to be levied in said city,” known as chapter 521 of the laws of that year.' By that act the salaries of certain officers were regulated, and by section 3 of that act it provided as follows:

“No officer or person, who is paid a salary for his services from the city treasury shall receive to or for his own use, any fees, costs,, allowances, perquisites of office, commissions, percentage or moneys paid to him in his official capacity; but all fees, costs, allowances,, perquisites, commissions, percentages and money so paid or received by any such officer or person shall be the property of the city and-shall be paid by him into the city treasury; and every such officer or person who shall receive any fees, perquisites, commissions, percentages or other moneys which belong to the city and should be so-paid into the treasury, shall, before he shall be entitled to receive- or be paid his salary, make, under oath, a detailed statement and return to the comptroller, in such form as he may prescribe, showing-the amount of all such moneys received by him since the last preceding statement and returns, and shall produce a receipt showing the payment of such sum into the treasury.”

It is clear that the relator was within the provisions of this section. He was an officer, was paid a salary for his services from the city treasury, and the fees paid to him, for services rendered by him as coroner, were fees paid to him in his official capacity.

The provisions of this section cannot be restricted to officers that before the consolidation had been officers of the municipal corporation, because the act itself provided for the compensation to be paid to the clerks of the Superior Court, and the Court of Common Pleas- and to the district attorney of the city of New York. Neither of those officers were ever officers of the municipal corporation, and, by the consolidation of the city and county, all officer’s whose duties were administrative or governmental, within the political division known as the city and county of New York, were officers of the one municipal corporation, and the salaries paid to them were paid from the city treasury, and all such officers elected subsequent to the passage of the act of 1880, were subject to its provisions, and were entitled to receive the compensation paid to them by the city only upon compliance with its provisions.

This provision of section 3 of chapter 521 of the Laws of 1880 was re-enacted in section 56 of the consolidation act. There can be no doubt but that by this legislation it was the intention of the legislature to restrict all public officers in the city of New York, to whom a salary was paid by the city, to such salary as their compensation for 'the services rendered by them, and that.all provisions of law then existing, by which any such officer was allowed to retain, for his own use, any fees by whomsoever paid, were repealed, and. after the passage of the act of 1880 there was no provision of law by which a coroner of the city of New York could legally receive, for his own use, any fee for services rendered in his official capacity from any person; but all fees paid to him for his services as such coroner, or in an official capacity, belonged to the city of New York.

The re-enactment of section 1 of chapter 256 of the Laws of 1878, as section 1767 of the consolidation act, whereby it was provided that the salary and allowance paid to the coroner should be in lieu of all his fees or compensation theretofore a charge upon the city and county of New York, must be read in connection with the re-enactment of section 3 of the act of 1880, in section 56 of the consolidation act, and. reading the two sections together, they are not at all inconsistent.

The salary paid to him is in lieu of his fees or compensation theretofore a charge upon the city and county of New York, but he shall not receive, for his own use, any fees paid to him in his official capacity, but receive the same for and pay the same to the corporation.

This construction gives full effect to both of the sections of the consolidation act, and continues the policy that was adopted by the legislature on the passage of the act of 1880, in relation to the official» of the city and county of New York.

We think, therefore, that the relator was not entitled to receive his salary from the city until he had complied with the provisions of section 56 of the consolidation act, and that the order appealed from should be affirmed, with ten dollars costs and disbursements.

Van Brunt, P. J., and Daniels, J., concurred.

Order affirmed, with ten dollars costs and disbursements.


author: Daniels, J,:

text:
    In the Matter of the Judicial Settlement of the Account of JOHN L. HOBSON, as Administrator, with the Will Annexed, of SARAH M. HOBSON, Deceased.

      Executors and administrators — when liable for assets not properly a part of the estate — credit for a payment made to the mother of an infant cestui que trust — an administrator allowed his expenses but denied commissions.

    Upon the final accounting of an administrator, with the will annexed, of Sarah M. Hobson, a question arose as to his liability to account for the proceeds of a certain bond and mortgage, in regard to which it was shown that the administrator’s father had created a trust for the benefit of his mother, the testatrix, the trust fund being represented in part by the bond and mortgage in question, given by third persons and made payable to the testatrix; that the testatrix died leaving a will and naming the father as executor; that the father did not prove the will, but subsequently brought an action to establish the trust, to which the son (the administrator) was, in his individual capacity, made a party; that, in the judgment in that action, the bond and mortgage were mentioned as constituting an item of the trust estate; that thereafter the father died, and subsequently the son proved his mother’s will; letters of administration thereon were issued to him, and he gave security for the due administration of the estate in an amount in which the said bond and mortgage was included, that he, as administrator, received the bond and mortgage, and was subsequently paid the amount secured to be paid thereby and satisfied the mortgage; that thereafter he begun a proceeding for an accounting, and in his account charged himself with the amount of said bond and mortgage.
    The surety upon the bond of the administrator objected to his being charged with the said bond and mortgage.

      Meld, that as the son had at all times treated the bond and mortgage as assets of his mother’s estate, and never as a part of said trust estate to which they properly belonged, he was liable to account for them in his capacity as administrator.
    The cases upon this point reviewed.
    ■Certain infants were entitled to share in the trust estate, and the administrator made a payment to their mother for them of a part of the sum realized upon said bond and mortgage, but it did not appear to what extent, if any, the mother had applied this sum towards their support.

      Meld, that the administrator was not entitled to credit for the amount so paid by him to the mother.
    That the administrator was entitled to credit for the necessary expenses of the accounting, but should be denied commissions.
    Appeal by Jolin L. Hobson, as administrator, with the will annexed, of Sarah M. Hobson, deceased, from so much of a decree, entered in the Surrogate’s Court of the county of New York on the 13th day of March, 1889, as found that he had converted the fund therein described to his own use, and had fraudulently wasted and .disposed of the same, and which denied him commissions and charged him personally with the costs and expenses of his accounting, settled his account as stated in the decree and directed him to pay to James E. Heath, substituted trustee, $7,587.37, with interest, and which denied his application to amend his account and proceedings.
    The referee, to whom the matter was referred by the surrogate of the county of New York, made certain findings substantially as follows:
    That prior to the 19th day of May, 1866, the decedent, who was then the wife of George G. Hobson, was possessed of certain bonds, mortgages and stock, which had, before that time, been given to her by her husband, and that a portion of the said funds was invested in a bond for $15,000, secured by mortgage upon property upon the north-east corner of Broadway and White street, in the city of New York, said mortgage being executed by Lewis C. Austin, George W. Thorp and Charles V. Riley, then members of a firm doing business under the firm name of Austin, Thorp & Company.
    That on the said 19th day of May, 1866, the said George G. Hobson settled in trust upon the decedent certain other bonds, making, in the aggregate, an estimated value of $100,000, and at the same time executed and delivered to the said Sarah M. Hobson an instrument which particularly set forth and described all the first mentioned bonds, mortgages and stock, including said mortgage for $15,000; and in said instrument the said George G. Hobson declared that all of the said funds were settled upon the said Sarah in trust, to be held for her own use, as to the income thereof, during her life, and for the use of the said George G. Hobson, as to the income thereof, during his life, if he should survive said Sarah M. Hobson, and after the death of both George and Sarah M. Hobson to be apportioned among their children in the manner designated.
    That said Sarah M. Hobson thereafter received said property, and on the 31st day of May, 1866, duly executed and delivered to said George G. Hobson an instrument acknowledging that she had received the same for the purpose and upon the trusts herein-before set forth.
    That thereafter, and on or about the 1st day of May, 1867, the said Lewis C. Austin, George W, Thorp and Charles Y. Riley, and their respective wives, executed a new mortgage in the same amount and upon the same premises to the said Sarah Magruder Hobson, and the mortgage first above mentioned was satisfied of record by the said Sarah M. Hobson.
    That on or about the 18th day of November, 1874, the said George W. Thorp retired from the said firm of Austin, Thorp & Company, whereupon a new mortgage upon the same premises and in the same amount was executed to the said Sarah M. Hobson by Lewis 0. Austin and Charles Y. Riley and Elizabeth Riley, his wife, and the said Sarah M. Iiobson discharged of record the said mortgage secondly above mentioned.
    That the said Sarah M. Hobson died on the 28th day of July, 1875, leaving her said husband, George G. Hobson, her surviving.
    That during the life of said Sarah M. Hobson, and after her death, and until on or about the 14th day of June, 1879, the said George G. Hobson had the practical charge and care of said trust fund, and collected the income thereof for the said Sarah during-her life, and for his own use thereafter.
    That on the said 14th day of June, 1879, a judgment was entered in the Supreme Court in an action in which the said George G. Hobson was plaintiff, and all the children and grandchildren of the said George G. Hobson and Sarah M. Hobson, who were interested in said trust fund, were defendants, by which judgment it was declared that said mortgage, together with said United States and certain railroad bonds therein set forth, constituted a portion of said trust fund, and that said George G. Hobson, from the death of Sarah M. Hobson, became sole trustee of said trust fund, and one Joseph Hobson, a brother of said George G. Hobson, was thereupon-appointed by the said Supreme Court a trustee to be associated with the said George G. Hobson in the further execution of said trust.
    That the said Joseph Hobson died in the year 1880, and the said George G. Hobson died on the 15th day of February, 1882.
    That said Sarah M. Hobson left a last will and testament, in which she named her husband, George G. Hobson, as executor, and directed the distribution of her estate, after the death of her said husband, to the same persons and in the same proportions as directed by said instrument of trust. '
    That no steps were taken during the lite of said George G. Hob-son for the probate of said will, but after his death the same was offered and admitted to probate, and letters of administration were thereupon granted on the 15th day of July, 1882, issued to the administrator now accounting.
    That for several years before the death of said George G. Hobson the securities representing said trust fund were kept on deposit in a vault in the Bank of New York, and on the 26th day of July, 1882, the same were delivered to the administrator now accounting by the president of said bank, the administrator signing a receipt therefor as administrator of the estate of S. M. Hobson, deceased.
    That at that time said $15,000 mortgage remained of record, payable to Sarah M. Hobson, individually.
    That among the securities delivered to the accounting administrator by the president of the Bank of New York were United States bonds, registered in the name of George G. Hobson, trustee, of the par value of $10,000, and certain railroad bonds exceeding $40,000 in par value.
    That on the 3d day of November, 1882, the said John L. Hobson presented a petition to the Supreme Court praying that he be appointed trustee, as successor to his father, George G. Hobson, and set forth that the United States secretary of the treasury refused to transfer said United States registered. bonds until a new trustee should be appointed; and the said John L. Hobson was thereupon, appointed by the Supreme Court trustee, as successor to 'George G.. Hobson, deceased, on filing a bond in the sum of $5,000.
    That on or about the 9th day of March, 1883, the said mortgage for $15,000, together with interest ther§on then due, amounting to-$1,172.80, was paid off by the mortgagors, the said John L. Hobson receiving the amount thereof, and executing a satisfaction as administrator C. T. A. of Sarah M. Hobson, deceased.
    That on the 10th day of March, 1883, the said John L. Hobson deposited $15,272.50 of the amount received from said mortgage with the Union Trust Company to his credit as administrator of the-estate of S. M. Hobson, deceased.

      That, at divers times, the said John L. Hobson converted into cash all the other securities received by him from the Bank of New York, but the amount of money received therefor has not been shown before me.
    That out of the moneys collected by said administrator from said mortgage, and deposited in the Union Trust Company, the administrator paid in various sums, from May 15, 1883, to June 11,1881, the sum of $1,208 to Florence Hobson, the widow of George Hobson, deceased, and the mother of Florence and Georgina Hobson, infants, who were, together, entitled to one-sixth share of the trust fund, and to one-sixth share of the residuary estate of Sarah M. Hobson.
    That, at the time the said payments were made by said administrator, said Florence Hobson had not been appointed guardian of said infants, and no evidence was adduced tending to show, that the said moneys were necessary for the support of said infants, or that they were, in fact, expended for this purpose.

      Frank \V. Arnold and Thomas Moore, for the Public Administrator (substituted for John L. Hobson, who died pending the appeal), and the Fidelity and Casualty Company, appellants.

      Howard R. Bayne and Anson Maltby, for the administrators of Sarah "Whipple, James E. Heath, substituted trustee, Ellen L. Norris, Francis Hobson, and others, respondents.
   Daniels, J,:

The controversy, as it was presented to and decided by the surrogate, related to the liability of John L. Hobson, as administrator with the will annexed, of Sarah M. ITobson, deceased, to account for the amount of a bond and mortgage payable to her and collected by him after his appointment as administrator of her estate. The debt, as it was first created, seems to have been the property of George G. Hobson, the husband of Sarah M. Hobson, who were the parents of the administrator John L. Hobson. On the 19th of May, 1866, George G. Hobson created a trust for the benefit of his wife during her life, and for his own benefit during his life in case of his survivorship. And a bond and mortgage executed by Austin, Falk & Company on or about the 1st of May, 1866, to Sarah M. Hobson, was made a part of the capital of this trust. That mortgage was satisfied and another taken in its place payable m the same manner. And this second mortgage was also discharged upon the retirement of George W Falk from the firm whose members executed the mortgage, and another mortgage was taken in its place executed by the remaining members of the same firm. This last mortgage was dated on or about the 18th of November, 1874, and, together with the bond accompanying it, was in like manner payable to Sarah M. ITobson. She died, after enjoying the income of the trust, as she was entitled to do so by the instrument creating it, on the 28th of July, 1875, nominating her husband as the executor of her will. Bur he did not prove the will, but continued to receive the proceeds of the trust until he died on the 14th of February, 1882. During his lifetime, and in 1878, he brought an action to establish the trust, making his son John L. Hobson one of the parties. And a judgment was recovered in that action to that effect. And in that judgment the mortgage is mentioned as one of the items of the-trust. As a matter of fact, therefore, this mortgage belonged to the trust estate as a part of its capital. But after the decease of his father, and on the 14th of July, 1882, John L. Hobson applied to the surrogate for letters of administration, with the will annexed, on the estate of his mother Sarah M. Hobson, stating its value to be the amount of this mortgage. Letters in that form were issued to him, the will at that time having been probated, and his bond was fixed at the sum of $30,000. And the Fidelity and Casualty Company in the city of New Fork, one of the appellants from the surrogates’s decree, became the surety on this bond. After becoming in this manner qualified as the administrator of the estate, with the will annexed, he received a large number of securities, including this bond and mortgage for $15,000, aud gave a receipt for them, describing himself as the administrator of the estate of S. M. Hobson, deceased. An appraisement of the estate was also made at his instan ce, in which this bond and mortgage was the property appraised as the estate of the deceased testatrix. And this administrator, with the will annexed, has in that capacity received the money secured by the mortgage and discharged it as satisfied. And in October, 1884, he applied to the surrogate for the settlement of his accounts, charging himself in his application with the amount of this mortgage and the interest he had received upon it, and then crediting himself with certain payments made by him, leaving a balance, as he stated it, of .$6,104.95, in his hands yet to be distributed, His petition and accounts were verified in the usual manner, affirming the accuracy of the statements contained in them. It appeared upon the hearing before the referee appointed by the surrogate, and whose conclusions were substantially confirmed by the surrogate, that he had made certain disbursements in his capacity of administrator, and also paid to two of the legatees entitled to share in the distribution of the estate after the expiration of the trust under the terms of the wills to which it was subjected, further sums of money, leaving a balance in his hands of the sum of $7,587.37. And'that balance he was ordered by the decree within thirty days to pay over, with interest, to a substituted trustee who had been appointed to take charge of the trust estate in that capacity.

In November, 1882, John L. Hobsonj the administrator, applied for his own appointment as trustee of the trust estate, and an order was made, with the consent of parties interested in the trust, appointing him such trustee on giving a bond in the sum of $10,000. But in point of fact the bond given by him upon that appointment was in the sum only of $5,000; and from the evidence in the case, as well as the conclusion of the referee before whom it was taken, which was adopted by the surrogate, it did not appear that John L. Hobson, as administratoi’, had ever made any transfer, either directly or indirectly, of this bond and mortgage, or of the moneys received upon it, to himself, as trustee under this appointment; and 'in the absence of that proof, and his continued action as administrator, the presumption was warranted that he still continued to hold the proceeds of the mortgage in the capacity in which he had received the security itself, which was that of administrator with the will annexed. (Matter of Hood, 104 N. Y., 103.)

The administrator appealed from the decree, and afterwards died, and the public administrator was substituted as a party to the appeal in his place. In behalf of the administrator, exceptions were ffiken to the decree of the surrogate, so far as it held him liable as administrator with the will annexed, liable to account for this bond and mortgage and the disposition of its proceeds, and to the direction contained in the decree to pay over. the residue to the substituted -.trustee of the trust estate; and in support of these objections it has been contended, as the bond and mortgage formed a part of the trust estate, it could not be collected and administered upon by the administrator of Mrs. Hobson, with the will annexed. But it is quite clear from the form in which the bond and mortgage were taken that he, as the administrator of the estate, with the will annexed, was entitled to collect this indebtedness. The contract authorized him, as the administrator of the estate, to receive the money and discharge the security. (Caulkins v. Bolton, 31 Hun, 458; 98 N. Y., 511; Schluter v. Bowery, etc., Bank, 117 id., 125.)

He not only received the security by virtue of his appointment as the administrator of the estate, but he also collected the moneys upon it, and disbursed them, so far as they were paid out, in that capacity, and throughout his entire management of the estate acted in that manner, and not in any sense as a trustee of this trust. .And after having received the security and collected and retained the money upon it in that capacity, he was liable to account for it under his obligations of administrator of this estate. A similar question of liability was considered in De Valengin's Administrators v. Duffy (14 Peters, 282), where moneys had been collected by the administrator of an estate which belonged to another party, and, in point of fact, formed no part of the assets of the estate. And it was there objected that the party accountable could not be called to account for such money in the capacity or under the liability of an administrator But it was said in the opinion of the chief justice that, Upon a full consideration of the nature and of the various decisions on the subject, we are of opinion that whatever property or money is lawfully recovered or received by the executor or administrator, after the death of his testator or intestate, in virtue of his representative character, he holds as assets of the estate, and he is liable therefor in such representative character to the party who has a good title thereto. In our judgment this, upon principle, must be the true doctrine.” (Id., 290.) And it was further added: “ We do not mean to say that the principal may not, in such cases, resort to the administrator in his personal character, and charge him ■de bonis propriis with the amount thus received. We think he may take either course at his election. But that whenever an executor or administrator, in his representative character, lawfully received money or property, he may be compelled to respond to the party entitled, in that character, and shall not be permitted to throw it oft after he has received the ’money in order to defeat the plaintiff’s action.” (Id., 291.) This is a direct authority supporting not only the jurisdiction, but the correctness of the surrogate’s decree, so far as it depended uj>on the liability of this administrator to account for these moneys in that capacity. And the cases of Graham v. Van Duzer (2 Redf., 322); Calyer v Calyer (4 id., 305) and Perkins v. Perkins (46 N. H., 110), support the conclusions in this manner declared by the court. And so, also, but not so fully, do the cases of Wells v. Wallace (2 Redf., 58); Matter of Collyer (4 Dem., 24), and Du Bois v. Brown (1 id., 317).

Other authorities have been relied upon and brought to the attention of the court in support of the appeal, which have been cited as in conflict with the surrogate’s decree. But they do not appear to be so upon an examination of them. For in Shumway v. Cooper (16 Barb , 556), where the jurisdiction of the surrogate was considered as to the disposition of the proceeds of the sale of infant’s lands, it did not appear that the personal representative had received those proceeds in his character as such, and they consequently became no part of the assets of the estate in his hands. The same is true of the case of Vulte v. Martin (44 How., 18), where the proceeds were received by the party as a trustee, which, of course, excluded the jurisdiction of the surrogate over their disposition. In Anderson v. Thompson (38 Hun, 394) the funds collected were held in trust, and the personal representative was in no sense entitled to receive and mingle them as assets with the estate. The same thing is also true of Levy’s Estate (1 Tucker, 148), where the disposition of the rents of real estate came up for consideration. And, as they were disposed of by the statute relating to the descent of real estate, it was rightly held that the administratrix had no legal right to receive them. The Matter of Calyer v. Calyer (4 Redf., 305) is similar m its effect. For the moneys there in controversy neither formed any part of the assets of the estate, nor were they collected or received under any obligation entitling the personal representative to interfere with them. Matter of Collyer (4 Dem., 24) was a proposal to bring the personal representative to an account for trust funds on deposit in a savings bank. There was clearly no such liability on his part, and no jurisdiction over the subject-matter vested in the surrogate. And no case has been cited or discovered where th& administrator of the estate was entitled, by the contract passing; into his possession by virtue of his appointment, to collect a sum of money, which was afterwards received by him in his representative, capacity, and so managed and accounted for, in which it has been held that he should be relieved from such accounting, or exonerated; from liability, for the moneys acquired by him in that manner.. But where the administrator is authorized by the contract itself, as he was by the form of these securities, to take possession of them and collect the money as administrator, there he has been held accountable, after receiving it in that capacity, under the decree of the surrogate having jurisdiction over the administration of the estates of deceased persons; and there seems to be no valid reason for making this case an exception to the operation and effect of that principle. The Code of Civil Procedure, by subdivision 3 of section 2472, has vested in the surrogate jurisdiction to direct and control the conduct and settle the accounts of executors, administrators and testamentary trustees. And that seems literally to include the case of this administrator, for he not only became the administrator of this estate, but his appointment was apparently upon the basis that this bond and mortgage was an asset of the estate. It was received by him as such, and he collected it in that capacity and made a deposit of the amount collected to his credit, as administrator, and distributed the moneys disbursed by him as the administrator of this estate; and when that had been accomplished he applied for the settlement of the accounts, including this'as the asset of the estate in the same capacity. There seems to be no substantial reason, therefore, for doubting his liability, as administrator, created in this manner, or for doubting the jurisdiction of the surrogate over the case as it was presented to him for his decision.

It was proved by the evidence that the sum of $1,108, and, perhaps, more than that, was pai'd over by the administrator to Mrs. Florence-. Hobson, who is the mother of Florence and Georgiana Hobson. They were entitled, as the daughters of a deceased son of the testatrix, to participate in the distribution and division of the trust estate. Their father was deceased, and this money was paid over to their mother with whom they resided. And it would undoubtedly have been allowed, in whole or in part, by way of credit to the administrator in the settlement of his accounts, if it had been made to appear that the money was devoted to the support, maintenance and educar tion of these two infant children. But that, as a matter of fact, was not established upon the hearing before the referee or the surrogate. But the most that was made to appear was that the money was expended by Mrs. Hobson in the support of herself and these two infant children. What amount was expended for their benefit was not made to appear. And neither the referee nor the surrogate had any means of determining what proportion of the money had been devoted to the benefit of these two infant children. In the absence of that proof it may be assumed that it was mainly appropriated by Mrs. Hobson for her own support and maintenance, leaving but a small part of it devoted to the necessities of these children. And the surrogate, consequently, had no evidence before him by which it could be declared or held that any specific part of this money had been devoted to the benefit of the infants. Mrs. Hobson was not their guardian. And it was incumbent upon the administrator, after he had paid the money over to her, to prove the amount that had been used in the support and maintenance of the infants, to entitle him to credit for those payments. That he failed to do, and for that failure this credit was properly rejected by the surrogate.

It appeared, in the course of the proceeding, that the administrator had delivered the sum of $1,256.78 to his counsel for safe keeping, and that this had been reduced, by disbursements made in the payment of referee’s and stenographer’s fees, to the suni of :$642. So far as the balance still remains, the right to have' it applied as a credit to the administrator is not denied. But it has not been formally paid over, it seems, to the trustee. And whenever that payment shall be made, to that extent the amount will be deducted from the decree. And there seems to bo no good reason for denying the administrator the right to a credit for the balance of -this sum of money, inasmuch as the money has been used to defray -the necessary expenses of the accounting. To that extent the decree I ¡should be modified, as it does not appear, by the statement of the -credits contained in it, that these disbursements have been allowed to the administrator. But in no other respect does it appear that! the decree should be subjected to auy change or modification. For ■as the large balance still remaining has been illegally disposed of by the administrator — as he seems to have known, by reason of his being a party to the suit brought for the construction and establishment of the trust, that these moneys belonged to the trust estate in point of fact, and should have been paid over as such by him — he was rightly deprived of his commissions, and charged with the costs and allowances made by the decree.

The action of the surrogate in denying the motion to amend or change the account was entirely proper, for the administrator had deliberately presented it in the form in which it was verified by him. And all the facts touching his liability to account for these moneys as administrator were as fully and clearly before the court as they would have been if this amendment had been permitted. And no injustice, therefore, was caused to the administrator by the denial of the motion. The order of the surrogate disposing of that motion should be affirmed, with ten dollars costs and such disbursements as may have been expended on account of it in the appeal, and the decree of the surrogate should be so far modified as to include the deduction of this sum of $1,256.78, upon the payment to the trustee of the balance remaining of $642. And as so modified, the decree should be affirmed, without costs of the appeal.

Lambert, J., concurred.

Order affirmed, with ten dollars costs and such disbursements as may have been expended on account of it in the appeal, and the decree modified as directed in opinion, and as modified affirmed, without costs of the appeal.


author: Van Brunt, P. J.:

text:
    LEVI DECKER, Plaintiff, v. THE GUTTA PERCHA AND RUBBER MANUFACTURING COMPANY, Defendant.

      JMdence — when the cledcsi'ations of an officer of a corporation are competent against it — recognition of his authority to malee them.

    The superintendent of a manufacturing company, who had been in the habit of negotiating sales of its goods, and of talking with customers in regard to them, made certain representations to a purchaser with regard to the character, quality and durability of certain billiard cushions, and then referred him for the price to the president, who fixed the same.
    An action having been brought by the purchaser for an alleged breach of warranty Held, that such declarations of the superintendent, made in the course of business, and to induce a sale, were competent evidence against the corporation.
    That where it appeared that the president, when he fixed the price, knew that the purchaser had already talked with the superintendent, this amounted to a recognition by the president of the right of the superintendent to speak as to the quality of the goods.
    Exceptions of the plaintiff Levi Decker taken upon the trial of this action at the New York Circuit before the court and a jury, at which the complaint was dismissed, and said exceptions were directed to be heard in the first instance at the General Term.

      JE. P. Wheeler, for the plaintiff.

      W. PE. Arnovas, for the defendant.
   Van Brunt, P. J.:

The plaintiff in this action had been for many years a manufacturer of billiard tables, and had been accustomed to purchase billiard table cushions of the defendant; and in April, 1881, being desirous of obtaining rubber for the purpose of constructing the cushions of billiard tables, applied to the defendants therefor, and saw the general manager and superintendent of the business of the defendants at their factory, who made certain representations in reference to the character, quality and durability of these cushions. The superintendent referred the plaintiff to the president of the defendant to fix the price thereof.

The cushions having turned out to be of an inferior quality, the plaintiff brought this action to recover damages sustained because of the breach of an alleged warranty in reference to the quality and durability of these cushions.

Upon the trial he sought to prove what representations and statements had been made by the superintendent at the time of the purchase of these cushions ; and this evidence was excluded upon the ground of want of authority upon the part of the superintendent to bind the corporation by any such representations.

It is not necessary, in considering this proposition, to treat of the question of election as to the causes of action, no such question being-raised upon this appeal.

The ruling of the court is sought to be sustained by the cases of Mining Company v. Anglo-Californian Bank (104 U. S., 192) and Martin v. Webb (110 id., 7). But an examination of those cases shows that they have no relevancy to the question presented by the Tilling of the court below. In the case of Mining Company v. Anglo•CaUfornia/n Babble it was held that, as incident to the general powers ■of a mining company, its board of directors may borrow money for its purposes and invest certain of its officers with authority to negotiate loans, execute notes and sign checks drawn upon its bank •account, and that the fact that the board has invested them with such authority may be shown otherwise than by the official record ■of its proceedings; as by evidence that, without objection by the board, checks have for a long period been signed by the president •and secretary of the company. In the case of Martin v. Webb it was held that the cashier of a bank might be shown to have been clothed with power to transact business outside of his ordinary duties by parol, or that it might be implied from the conduct and acquiescence of its directors. The principles enunciated in those cases are in nowise in conflict with the ordinary rule which has been long established, that a salesman, in the conduct of a mercantile business, may make declarations and representations in regard to the quality, character and fitness of the merchandise intrusted to him for sale. And there is no difference in this respect between the agents of a corporation and the agents of an individual.

In the case of Ahern v. Goodspeed (72 N. Y., 108), the rule is expressly laid down that an agent for the sale of property, in the .absence of any express limitation of his power, has authority to do any act or make any declaration in regard to the property found necessary to make a sale, and usually incidental thereto.

In the case at bar it would aiDpear that the superintendent had been in the habit of negotiating sales and talking with customers,, and that all that the president did was to fix the price. There were no limitations upon the ordinary powers which a salesman possesses, except, perhaps, that the price of manufacture was to be fixed by the president.

It seems to us that, under these circumstances, the plaintiff' had a right to show what took place between the superintendent and himself, whereby he was induced to make the purchase. Whether it would turn out, when the evidence was received, that what was said by the superintendent was more than the expression of an opinion must be determined by the character of the evidence when introduced. But the plaintiff was precluded from giving evidence of this character, and, apparently, was even precluded from testifying to that which he repeated to the president of the corporation. And it is to be observed, in the consideration of' this question, that the president knew that the plaintiff had been talking to the superintendent in reference to this rubber, its character and suitability for the busines's, and that the only subject of conversation between the president and the plaintiff was the matter of price.

It would seem, also, that this was a distinct recognition of the right of the superintendent to make representations as to the quality of the goods which were to be delivered.

We think, therefore, that error was committed in excluding the testimony as to what transpired between the pontiff and the superintendent, the effect of such testimony, however, not being-passed upon in the disposition of this appeal.

The exceptions should be sustained and the motion for a new trial should be granted, with costs to plaintiff to abide event.

Daniels and Ingraham, JJ., concurred.

Exceptions sustained and motion for new trial granted, with costs to plaintiff to abide event.


author: Yan Brunt, P. J.:

text:
    JAMES H. PARKER, Appellant, v. MANUEL MANCO, Respondent.

      Civil process — protection from service of process while attending the talcing of testimony out of court — the proceedings which protect him must he in court.

    An action was pending in tlie Circuit Court of the United States for the District of South Carolina, between one Parker, a citizen of the State of New York, as plaintiff, and one Manco, a citizen of the State of South Carolina, as defendant, in which it was agreed to take the testimony of Parker before a notary in New York city. Manco, who attended the taking of the testimony in New York, as he was leaving- that city upon the next day was served with a summons in an action brought in tlie Supreme Court of the State of New York between the same parties.

      Held, that the fact that Manco came to New York city to attend the taking of the testimony did not protect him from the service of civil process.
    That the rule which protects parties and witnesses from such service, while in attendance upon the trial of causes within this State, had no application to a citizen of a foreign State, having a litigation pending íd said foreign State, who attended in this State in order to take testimony out of court.
    That said rule is in furtherance of the administration of justice, and that- hence the proceedings which protect the party or witness must be in court.
    Appeal by tlie plaintiff James H. Parker from an order, entered in tlie office of the clerk of the city and county of New York on the 13th day of May, 1891, setting aside the serviee of the summons in the above-entitled action.

      T. II. Dewey, for tlie appellant.

      J. R. Abney, for the respondent.
   Yan Brunt, P. J.:

It appears that the plaintiff in this case resides in the city of New York, and the defendant in South Carolina. At the time of the service of the summons in this action, setting aside whicli the order appealed from was made, there was an action pending between the same parties in the Circuit Court of the United States for the. district of South Carolina, and it having been agreed that certain testimony should be taken in tlie city of New York before a notary public, tlie defendant came to tbe place where such testimony was to be taken on the sixth of April, in the afternoon, and on tlieseventh of April the summons in this action was served upon him. A motion was thereupon made to set aside the service upon the ground that the defendant was exempt from service, he being in the State for the sole purpose of taking testimony before a notary public in another action to which he was a party. In support of this proposition, our attention is called, by the counsel for the ^respondent, to several cases, among which are the cases of Matthews v. Tufts (87 N. Y., 568) and Person v. Grier (66 id., 124).

None of the cases cited, however, presents the question now before the court. Nor does the rule recognized in those cases have any application to the facts appearing in the case at bar. The reason why parties and witnesses who come from foreign States into this State for the purpose of attending a trial here are exempted from service of process is, that 'their presence is necessary for the due administration of justice, and that without such exemption their attendance might not be readily obtained.

In the case of Person v. Grier the court say: “ It is the policy of the law to protect suitors and witnesses from arrests upon civil process' while coming to and attending court and while returning home. * * * This immunity is one of the necessities of the administration of justice, and courts would often be embarrassed if suitors or witnesses while attending court could be molested with process. Witnesses might be deterred and parties prevented from attending, and delays might ensue and injustice be done.”

And in the case of Matthews v. Tufts the court say: This immunity does not depend upon statutory provisions, but is deemed necessary for the due administration of justice.” In that case the qiarty was attending as a creditor before a commissioner in bankruptcy in this State, and the court held that commissioners in bankruptcy are a court of justice sufficient for the purpose of having the witness protected by the Court of Chancery at least, if not by themselves. They sit in the nature of a court in the administration of justice in proceedings in bankruptcy, and the due administration of justice requires that all creditors should be free to attend without interference by service of process of any kind.

Thus it is seen that the object of the rule is to allow parties and witnesses to be present where their attendance is necessary upon the trial of causes within this State; and this rule has obtained because it was in furtherance of justice. It has no application to the case of a party living in a foreign State having a litigation pending in a foreign State, who attends in this State for the purpose of taking, testimony out of court. The proceedings must be in court, and it is for the protection of the administration of justice that the rule has obtained.

We think, therefore, that the coming into this State, for the purpose of being present upon the taking of testimony to be used in an action in another State, neither comes within the spirit nor the letter of the rule .to which attention has been called, and that the defendant was liable to service of process, and the service of the summons herein should not have been set aside.

The order appealed from should be reversed, with ten dollars costs and disbursements.

Daniels and Ingraham, JJ., concurred.

Judgment reversed, with ten dollars costs and disbursements.

        Bic in List of Decisions.


author: Yan Brunt, P. J.: Daniels, J. : Ingraham, J.

text:
    FRANK PHELPS, Respondent, v. THE MAYOR, ALDERMEN AND COMMONALTY OF THE CITY OF NEW YORK, Appellant.

      Lease — pier in the eity of New York — renewal lease — repairs by the lessee which the dock depa/rtment has decided to be necessary — equitable relief refused, a right to damages sustained — pi'ocedure upon the law side of the court.

    The city of New York, in 1883, leased a pier to one Phelps for five years, The lease contained a covenant on the part of the city that it would, prior to the commencement of the term, or as soon after as practicable, make such repairs to the property as the board of dock commissioners should deem necessary. The pier was then in bad repair. There was also a mutual covenant that the parties understood, that no claim that the property “is not” or was not, at the commencement of the term, in a suitable condition, should at any time be made; and a further covenant by the plaintiff to keep the property in good repair, with a provision that if he failed the city might do it at his expense. There was also a covenant of renewal for a further term of five year, and a statement that the renewal lease should contain the same covenants,- except that the rent was to be larger, and that there should be no further renewal.

      A renewal lease was afterwards executed containing the same covenants as to-repairs as the original lease. At that time and subsequently the lessee claimed that the pier was not fit for use. The lessee upon his part had performed his agreement to keep it in repair, but owing to its age mere repairs were not sufficient. The dock department determined that it was necessary to do certain work to put the pier in proper condition, but did not do it. The lessee thereupon did it and brought an action to recover the money expended in so doing.

      Held, that the action could be maintained.
    That the renewal lease was a new grant, and that its covenants must be read as though it was the first inception of the relation between the parties.
    That said covenants, read together, must be taken to mean that the dock department bound itself to make such repairs as it deemed necessary; and that having decided certain repairs to be necessary, and having failed to make them, the lessee was authorized by the lease to make them and charge the city with the cost thereof. (Ingraham, J., dissenting.)

      An action was brought to reform the lease and for damages, and the court denied relief as to reformation, but granted it as to damages, and subsequently the case was tried upon the latter branch at circuit wdtliout a jury.

      Held, that the defendant had sustained no injury, and that the court properly decided not to dismiss the complaint because reformation had been refused.
    Appeal by the defendant, the Mayor, etc., of the City of New York, from a judgment of the New York Special Term, entered in the office of the clerk of the city and county of New York on June 30, .1891, in favor of the plaintiff and against the defendant for the sum of $15,963.33, damages and costs.

      8. J. Oowen, for the appellant.

      T. E. Roohfort, for the respondent.
   Yan Brunt, P. J.:

This action was brought by the plaintiff to recover damages for an alleged breach of a covenant upon the part of the defendant to repair the pier which the defendant had leased to plaintiff, and to reform the lease by striking out the stipulation which seemed to-prevent the plaintiff from raising the question of its breach.

The action has been heretofore tried and judgment entered denying plaintiff’s prayer to reform the lease, but awarding damages for the defendant’s breach of the covenant to repair. Upon appeal to the General Term, the General Term reversed that part of the judgment awarding damages and ordered a new trial. The same issues were retried and the court below held that the additional evidence offered supplied the deficiency which the General Term liad declared to be fatal to the first judgment, and judgment was. again awarded to the plaintiff for the full amount of his claim.

It appeared that the plaintiff was a lessee of a pier of the defendant under a written lease running from May 1, 1882 to 1887. This lease contained a covenant upon the part of the city as follows:

“And the parties of the first part promise and agree that they will, prior to the commencement of the aforesaid term of years, or as soon after such commencement as shall be found practicable, make such repairs to the above described wharf property, as the said board of commissioners may consider necessary, to put such wharf property in a suitable condition for service during the aforesaid term. And the parties hereto promise, agree and understand that no claim that the said wharf property is not or was not, at the time of the commencement of said term, in a suitable condition for the uses and purposes hereinabove mentioned, shall or will, at any time, be made or allowed.”

And a covenant upon the part of the plaintiff as follows:

“And the said party of the second part does further covenant,, promise and agree that he will, at all times during said term, except as hereinbefore agreed, put, keep and maintain all the said wharf property, and every part thereof and the structures thereon, in good and sufficient repair and condition, and will well and sufficiently dredge, and keep dredged, the slip or slips adjacent thereto; and that all such repairs, rebuilding and dredging during said term, shall be made and done at the sole cost, charge and expense of the said party of the second part. And in case the said party of the second part shall make default herein, and shall neglect or refuse to make such repairs or do such dredging, for the space of ten days after notice so to do shall have been given by the said department of docks, or any proper officer, agent or employee thereof, or of said parties o'f the first part, then this grant, and everything herein contained, shall be forfeited, and the party of the second part will pay to the parties of the first part such damages as they may have sustained ; or at their or its option, the said parties of the first part, or the said department, may make such repairs or do such dredging, and the full cost and expense thereof shall and will be paid on demand by the said party of the second part, to the said parties o£ the first part.”

And the covenant for renewal, as follows:

“It is further understood and agreed that if, at any time not less than ninety days before the expiration of the above-mentioned term of five years, the party of the second part shall givé the parties of the first part, their 'proper department or officer, notice in writing of his desire to have the present grant renewed, then, and in that case, the said parties of the first part will again grant unto the said party of the second part, for a further term of five years, commencing at the expiration of the present term, all wharfage which may.become due for the use and occupation of said pier, such renewed grant to contain like covenants as this present one, except the covenant of renewal, and except that the rent or compensation shall be eleven thousand dollars per annum, and the said wharf property is to be used and occupied during said term only for the purposes of mooring thereto vessels engaged in commerce and loading and discharging the same.”

Prior to the expiration of the term contained in this lease,'in pursuance of the covenant for renewal, the' plaintiff gave the notice entitling him thereto, and subsequently- a renewal lease was executed and delivered, containing the same covenants in respect to repairs which wei’e contained in the original lease.

It was admitted upon the trial that, during the first term, the plaintiff put, kept and maintained the premises and every part thereof in good and sufficient repair and condition, but that, notwithstanding such repairs, the pier and bulk-head being old, were not, on the 1st of May, 1887, in suitable condition for service for the second term; and that such a claim was’made by the plaintiff at the time of the execution of the renewal lease, and has ever since been made. It was further admitted that the plaintiff had expended the amount recovered for repairs in and by which said wharf, was placed in a suitable condition for service during the second term, and that said sum was a fair and reasonable amount to be so expended.

Upon the hearing before the General Term upon the previous appeal, it was held that the defendant could not be made liable for the amount thus expended, because it did not appear what the board ■of dock commissioners considered necessary repairs to put such wharf property in suitable condition for service during the term ; and the question presented upon this appeal is, whether, upon the new trial, this objection was obviated.

Yarious other points are raised which it is necessary only briefly to consider, and they are as follows : That, because only monetary damages were given, the court should have dismissed the complaint, the action having been brought in equity for a reformation of the lease and for damages.

This point is clearly not well taken. The plaintiff having shown himself entitled to common law relief, the court sent him to the Circuit Court to have such right tried before a jury; and a jury trial being waived, the issues were tried before the court without a jury, and the defendant, therefore, sustained no injury thereby.

The next claim presented is, that there was but one lease, and that the first lease and the option, read together, constituted the whole agreement, and that the covenant in regard to repairs by the defendant related only to the commencement of the original lease. We think there is clear error in this proposition. It certainly was not so considered by the parties because a renewal lease was executed, and the option to be exercised in pursuance of the covenant contained in the original lease was an option to demand a new grant commencing at the expiration of the term of the first lease, and the provision for renewal contained a statement in detail as to what covenants the renewal lease should contain- It was clearly a new grant, and all the covenants are to be read as though it was the first inception of the relation between the parties.

The only question, therefore, remaining to be considered is whether the evidence showed that the dock commissioners determined that certain repairs were necessary to put the wharf property in suitable condition for service at the commencement of the term.

It appears from the stipulation entered into between the parties that on the-1st of May, 1887, said pier and bulk-head were not in a suitable condition for service for the second five years, notwithstanding the repairs put upon them by the plaintiff because of its old and infirm condition. It further appears from the evidence that a controversy sprang up prior to the 1st of May, 1887, the time of the commencement of the new lease between the dock commissioners and the plaintiff as to who should make the repairs necessary to put the wharf property in suitable condition for use, the dock '•commissioners claiming that such liability rested upon the plaintiff, .and the plaintiff claiming that it rested upon the dock department, .and in this correspondence the dock department expressly stated these repairs to be necessary and as recommended by the engineer in chief of their department.

These facts, taken in connection with the stipulation that these repairs were necessary to put the wharf in a suitable condition for service, would seem to show that the dock commissioners determined that these repairs were necessary, and .supplied the omission which • existed in the case when it was before the General Term on the previous occasion.

We are, therefore, of opinion that the judgment should be affirmed, with costs.

Daniels, J. :

It is clearly proved that the board of dock commissioners did •-consider the repairs to be necessary which were made by the plaintiff. It is agreed that he had made all the repairs which he became bound to make under the first lease. And it, therefore, follows that the repairs in controversy had become necessary to put the wharf property in a suitable condition for service during the term created by the second lease. These repairs the dock commis.sioners bound themselves to make, which they subsequently refused to do, and directed the plaintiff to make them. In making them after that, he did no more than to perform the obligation of the commissioners, for which he became entitled to compensation from the ■ defendant. He did only what the commissioners concluded should be done, and which, by the obligation created, the commissioners .should themselves have done. He performed their obligation under their direction. And that entitled him to the compensation for doing their work which has been secured by the verdict. I, therefore, conclude that the judgment should be affirmed.

Ingraham, J.

(dissenting):

The liability of the city for the amount expended by plaintiff, in repairs to the pier leased by him, depends upon the obligation binding the city contained in the lease.

It is settled that if there is no covenant in the lease imposing such disability, that the defendant is not liable for the repairs made by plaintiff. (See Hartford and N. Y. Steamboat Co. v. The Mayor, 78 N. Y., 1.)

By the lease the parties of the first part (the defendants), agreed that they would, prior to the commencement of the term demised, or as soon after such commencement as should be found practicable, make such repairs to the wharf property as the board of commissioners should consider necessary, to put such property in suitable condition for service during the term .demised.

If that covenant stood alone, undoubtedly the plaintiff would be entitled to recover for any damage sustained by reason of the failure of the city or the commissioners to make such repairs.

There is, however, added to this covenant a provision that the <( parties hereto promise, agree and understand that no claim that the said wharf property is not or was not at the time of the commencement of said term in a suitable condition for the use and purposes hereinabove mentioned, shall or will at any time be made or allowed.”

The only construction that can be given to this covenant is that the repairs to be made were to rest entirely within the discretion of the dock commissioners, and that the plaintiff was to make no claim against them or against the city for any failure on their part to observe the covenant that they had made.

The commissioners were public officers acting on behalf of the municipal corporation, and it is not improbable that the plaintiff was willing to depend upon them to have the repairs made without insisting upon a covenant on behalf of the city that he could enforce, and thus to agree that no claim should be made for a failure to make any repairs or to put the wharf property in a suitable condition for use during the term. This seems to be the only construction that will give any effect to the provision in question.

If the city was to be liable for the failure of the dock commissioners to make such repairs, this proviso is absolutely meaningless.

We should not consider whether or not such covenant was a provident one for the plaintiff to make. All that we have to do is to enforce the agreement that was actually made, and the defendant can only be liable for a breach of some express obligation made on its behalf by officers acting under authority to bind them. Here the commissioners agreed that they would put the wharf property in repair, but the plaintiff agreed that he would make no claim that said wharf property was not put in repair, and it seems to me that, having made such agreement, he is now precluded from suing the city because the wharf property was not put in such repair.

I do not understand that this question was passed on by this court on the former appeal.

There the judgment was reversed because it did not appear that the dock commissioners considered the repairs made by plaintiff as necessary, and the question of liability of the defendant under the covenant does not seem to have been discussed in the opinion.

I think, therefore, the judgment should be reversed and a new trial ordered, with costs to abide the event.

Judgment affirmed, with costs.