source: Caselaw Access Project

author: By the Court. Woodruff, J.

license: Public Domain

text:
    Henry Young v. Esther Ann Catlett, Executrix of Henry Laverty, deceased.
    In an aetion against the indorser of a promissory note his denial in a verified answer, of a demand and refusal of payment, protest and notice, is not an affidavit within the meaning of the statute, so as to exclude the certificate of a notary from being read in evidence.
    Where a witness under examination in chief, suggests no want of recollection, and expresses no desire to refresh his memory, nor manifests by his answers any want of ability to answer readily and fully all relevant questions that may be put to him, the examining counsel cannot be allowed to place in his hands any paper or memorandum relative to facts concerning which he has been called to testify.
    To permit the examining counsel to place such a paper in the hands of the witness under the circumstance stated, and in anticipation of questions that he means to put, is to suggest to the witness the answers that are desired, and is open to the strongest objections that can be urged against the allowance of leading questions.
    The certificate of a notary, stating that he had demanded payment of a promissory note of an assignee of the makers, who were insolvent, “ at his and their place of business,” and that the assignee refused such payment, is sufficient, although it omits to state that the makers were not present when such demand was made.

      Semble, that an answer which specifying all the material allegations in the complaint denies them conjunctively, is not a genera] or specific denial within the meaning of the Code. A denial that all the allegations so connected as a whole are true, is not a denial of the truth of each separately considered, and is entirely consistent with an admission that some one or more of them is or may be true.
    Judgment for plaintiffs affirmed with costs.
    (Before Duer, Bosworth and Woodruff, J.J.)
    Dec. 9, 1856;
    Feb. 21, 1857.
    Appeal by defendants from a judgment for the plaintiff.
    The action was brought upon two promissory notes, each made by Caffee and Cutter, and indorsed by Daniel T. Young and Henry Laverty; the first note was for $1698.40, was dated the 4th of April, 1853, and payable six months after date; the second, for $1206, was dated the 9th of July, 1853, and payable four months after date; the suit was originally commenced against Laverty, and after his death, Mrs. Catlett, as his executrix, was, by an order of the court, substituted as the defendant. In her answer, which was verified, she, upon information and. belief, denied some of the material allegations in the complaint in this form: “that-whether or not upon the maturity of the notes mentioned in said complaint, the same were or either of them was duly presented to the makers thereof for payment, and payment thereof demanded and refused, and thereupon said notes duly protested for non-payment, and notice of such presentment, refusal, and protest, given to the said Henry Laverty, this defendant has no knowledge or information sufficient to form a belief.” The answer then set up usury in the negotiation of the notes as a separate defence.
    The cause was tried before Oakley, Chief-Justice, and a jury, in October, 1854.
    Upon the trial, the plaintiff offered to read in evidence the certificate of a notary, showing the presentment, and demand, and refusal of payment of one of the notes. The counsel for the defendant objected, that the" denial of these facts, in the sworn answer of the defendant, was equivalent to the affidavit required by the act of 1833, and which, when made, precludes the certificate of a notary from being received as evidence. The objection was overruled, and the counsel for the defendant duly excepted.
    The certificate was then read, and stated that the notary presented the promissory note in question to the assignee of the makers, at his and their place of business in said city, and demanded of him payment thereof, which he refused. The counsel for the defendant moved that the complaint be dismissed, as to the promissory note in question, on the ground that the certificate of the notary did not show that a sufficient presentment thereof had been made to the makers. The court overruled the motion, and the counsel excepted.
    M. Caffee, a witness on the part of the defendant, after having been examined for some time, by the counsel for the defendant, and having answered promptly the questions that were put to Mm, was asked to look, for the purpose of refreshing his memory, at a memorandum, copied by himself from entries, made in the books of Caffee & Cutter by others than himself. The plaintiff objected that the witness ought not to be allowed to look at the memorandum. The objection was sustained, and the defendant excepted.

      Exceptions were also taken, on the trial, to certain parts of the charge of the Judge, but as these exceptions, in the opinion of the court at General Term, all related to questions that had been decided in the prior case of Benedict v. Caffee, (5 Duer, 226,) it is deemed unnecessary to state them.
    The jury found a verdict for $2819.28, for which sum, with interest and costs, the judgment was entered, from which appeal was taken.

      W. Bliss, for the defendant, appellant,
    argued that not one of the exceptions taken on the trial ought to have been overruled, and that if any one of them was well taken he was entitled to demand a new trial. He cited, among other authorities, Douglas, 496; 8 East. 245; 11 East. 114, and 5 Espinasse, 175. He also insisted that the Chief-Justice erred in refusing permission to the witness Caffee to look, for the purpose of refreshing his memory, at his copy of the entries on the books of Caffee & Cutter, and cited on this point, 2 Selden, 337; 3 Term. R. 49 ; id. 754.

      J. Larocque, for the plaintiff, respondent,
    insisted that the certificate of the notary was properly admitted in evidence, as the denial, in the answer of the defendant, was not the affidavit that the statute requires; that the certificate was prima, facie sufficient evidence of the presentment of the note to the makers, and their refusal ; as a demand of payment of and the refusal of their assignee was enough, and that it was not necessary .for the notary to certify that the makers were absent when the presentment was made, the legal presumption being that such was the fact. He cited Bell v. Lent, (24 Wend. 230;) Cayuga Bank v. Hunt, (2 Hill, 635 ;) Burbank v. Read, (15 Barbour, 326;) De Wolf v. Murray, (2 Sand. S. C. R. 166,) and some other cases. All the other exceptions, stated in the case, he contended were plainly groundless.
   By the Court. Woodruff, J.

Upon an examination of the case before us, upon this appeal, we are able to find few questions presented for decision which have not been already disposed of in the case of Benedict v. Caffee, et al., heard at the General Term of January, 1856.

We think that all of the questions arising on the charge of the Chief-Justice, and the requests of the defendant for other specific instructions, and most of the questions raised by objections to evidence, were either expressly decided in that case or fall within the principles there affirmed, so clearly as to require no extended discussion in this court. The opinion there given may, therefore, be taken as our opinion upon those questions, in support of the rulings of the Chief-Justice herein.

Some two or three questions are, however, suggested, which were not raised upon the other trial. The first arises as follows:

The action is. brought against the defendant as the legal representative of an indorser of two promissory notes, and the complaint avers demand of payment, protest, and notice to the indorser.

The answer, adopting a form of denial authorized by the Code of procedure, says that the defendant has no knowledge or information sufficient to form a belief whether such demand was made and the notes thereupon protested, and notice given to the indorser (the defendant’s testator). The answer is verified in the usual form.

On the trial the certificate of the notary of the presentment, demand, and protest of the notes was offered in evidence by the plaintiff, and it was objected that the denial contained in the verified answer of the defendant was a sufficient affidavit, under the act of 1833, (chap. 271, page 395, § 8,) to preclude the evidence.

That statute, after declaring that the certificate of the notary shall be presumptive evidence of the facts therein contained, adds this proviso: “but this section shall not apply to any case in which the defendant shall annex to his plea an affidavit denying the fact of having received notice of non-acceptance, or of nonpayment of such note or bill.”

When this statute was passed pleadings were not required to be verified, and the act clearly contemplates the annexation to the plea of a separate affidavit, having no connection with the pleadings, as such, specifically denying the receipt of the notice.

If the question raised by the defendant’s objection and exception was an open question in this court, we should feel no hesitation in saying that the ruling on the trial was correct.

The verification of the answer is made for a distinct and different purpose. It applies to modes of expression and forms of denial sufficient for the purposes of the pleading, but in no sense satisfying the terms of the statute; and other reasons might be suggested in support of the ruling. But it is unnecessary to pursue the subject, since the point has been already decided in Arnold v. Rock River Railroad Company, et al, (5 Duer’s R., 207), at the General Term of this court, in which it is held that the verification of the answer is not sufficient to satisfy the statute and preclude the giving of the notary’s certificate in evidence.

In the progress of the trial, the defendant, while examining one of his witnesses, (after numerous questions, all of which were answered with great particularity, and without any suggestion or pretehce of want of recollection of any detail or particular called for,) required the witness to look, for the purpose of refreshing his memory, at a memorandum copied by himself, from entries made in certain books of account, at or about the time of the transactions in question, by other persons. The objection of the plaintiff’s counsel to his referring to any such paper, for any such purpose, was sustained, and the defendant excepted. The examination of the witness was continued, and completed, and, though examined at great length, there was no intimation of any failure of memory, to recall each and all of the circumstances inquired of by the defendant’s counsel, and his answers were explicit and positive; nor does it appear that there was any intention to examine him as to any other facts than to those to which he testified. If it were conceded that a copy from entries made by others was no more liable to objection than the original books, and that the fact that the entries were not made by himself did not affect the question, (Huff v. Bennett, 2 Seld. 337,) still we do not perceive the propriety of putting into the hands of a witness a paper, for the purpose of refreshing his recollection, when his memory is already fresh, and his recollection full, on the subject of inquiry. On the contrary, if the witness assumes to know and to remember, and does answer the inquiries proposed, we not only think it unnecessary to refresh his recollection, but that it would be unjust to the adverse party to permit it. An important ground for questioning the credibility of a witness, whether as untruthful or biassed, is often found in his assuming to know and state what he does not know, or to recollect what, from lapse of time or other circumstances, it is in a high degree improbable that he can remember; and so long as the witness assumes to answer from memory, we think he should be permitted to do so.

If it might be permitted to the examining party, by anticipation, to guard against falsehood, misstatements, or indications of partiality, by showing the paper to the witness on the stand, when he gave no intimation of any want of memory, it would be liable to great abuse, and deprive the adverse party of important means of affecting his credibility.

And though it may be very proper to show such a paper to a witness, for the purpose of enabling him to supply deficiencies in his testimony, or, perhaps, even to correct inaccuracies into which he has fallen, yet where there was (as in this case) no pretence of either, in respect to any matter to which the memorandum related, we think the ruling does not call for any interference with the judgment.

To permit the examining party to place a paper in the hands of. a witness, under the circumstances stated, in anticipation of the contemplated questions, is to suggest to him the answers that are desired, and is open to the strongest objections that can be urged against the allowance of leading questions.

When the witness does not suggest any want of recollection, nor express any desire to refresh his memory, nor manifest by the answers he gives any lack of ability to answer fully and specifically, we cannot think it is error not to permit him to look at a paper, at the solicitation of the counsel.

The remaining question, not covered in terms, nor by obvious inference, by the decision of this court before referred to, is, whether the certificate of the notary, in connection-with the other proofs in the cause, showed a sufficient demand of payment at the maturity of one of the notes ?

As to one of the notes, he certifies that he “ did present the original promissory note hereto annexed, to the assignee of the makers, at his and their place of business in said city, and demanded of him payment thereof, which he refused.”

Although the language of the certificate describes the person of whom the demand was made as the assignee of the makers, which does not very properly define his character or entire relation to them, yet the subsequent proof showed the previous failure of the makers, and the tenor of the objection on the trial, and the argumeat of the appeal, proceed upon the evident admission that the person so referred to was the assignee of the property of the insolvent firm. The points and argument of the defendant’s counsel treat him as an assignee for the payment of the debts of the insolvent firm, and, in the words of the points furnished by the defendant’s counsel, as “ standing in the same position as an assignee in bankruptcy.”

If we felt at liberty to. meet the- objection'of the defendant’s counsel in a mode not suggested on the trial, nor urged on the argument of the appeal, we might, perhaps, say that it is very doubtful whether any proof of demand of payment was necessary, by reason of the failure of the defendant to deny the allegation that the notes were duly presented to the makers, and payment demanded and refused.

The Code authorizes an answer containing a general or specific denial of each material allegation. (§ 149.) Under the form of a general denial the answer may deny all the allegations in the complaint in such terms that if any one is true the denial is false; or it may deny specifically such allegations as the defendant intends to controvert on the trial. But it is not clear that any thing in the Code warrants the grouping of several material allegations and denying them as an aggregate in terms which are not inconsistent with the truth of any one of them.

That part of the answer which relates to demand of payment may be stated with an abbreviation not affecting its import, thus: “ That whether or not, at maturity, the said notes were, or either of them was, duly presented to the makers for payment, and payment thereof demanded and refused, and thereupon duly protested, and notice of such presentment, refusal, and protest given to the said Henry Laverty, this defendant has no knowledge or information sufficient to form a belief.” This is only a denial of knowledge sufficient to form a belief whether these facts or allegations in the complaint, taken conjunctively, are true. Had the defendant been answering of his own knowledge and had,'even in absolute terms, denied that the note was presented, and payment demanded and refused, and thereupon was duly protested, and notice of such presentment, refusal and protest given, ect., it might still be true, consistently with such conjunctive denial, that payment of the note was demanded of the makers. A denial that A. and B. and C. and D. were present on a certain occasion, is no denial that B. was present, or that A. and B. were present, and so as to either. A denial that A. went to Rome, and to Egypt, and to Jerusalem, and returned from Jerusalem to New York, is not a denial that A. went to Egypt.

The denial in this answer resembles what was known as a negative payment under our former system of pleading, and it is not easy to perceive any reason for- saying, that a form of expression which is not inconsistent with the truth of a specific allegation in the complaint, nor inconsistent with knowledge and belief of such truth in the defendant, may be sustained as a sufficient answer under the section of the Code which prescribes the requisites of an answer. (§ 149.)

If, then, the denial of the conjoined facts be consistent wth the existence and truth of any one of the separate facts, why may not the adverse party say that as to such one fact there is no denial, and it is, therefore, to be deemed admitted under that section of the Code which provides that every material allegation in the complaint, not controverted by the answer as prescribed in § 149, shall be taken as true ?

As this inquiry was not made on the trial, nor on the argument, we might overlook some considerations bearing upon the subject, if we were to answer it in the plaintiff’s favor. We, therefore, recur to the inquiry, whether there was sufficient evidence of a due demand of payment of the note to which this objection relates. Confessedly the demand of payment is certified to have been made at the proper time and at the proper place, the place of business of the makers.

Was it made of the proper person ? In Benedict v. Caffee, above referred to, the court held that a presentment for payment at the place of business of the assignee was not sufficient, it not appearing that it was the place of business of the makers, but, on the contrary, the evidence showing that the makers had ceased to resort to that place.

Now although the makers had failed, and their assignee made their place of business his place of business also, still it was their place of business, and, therefore, the proper place to make presentment. In the case referred to, the opinion of the court in relation to the assignee, holds that he was not as the fesult of tho assignment, the general agent of the makers, to transact their business. He had no right to use the proceeds of the assigned property to pay the debts of the makers, except such as were provided for in the assignment, in such order of priority as the assignment prescribed. In virtue of the assignment, then, he had no authority to answer for the makers, or pay the note on their behalf.

If the presentment to him was sufficient, it was because his place of business was the same as that of the makers, and the notary found him there; and, it may be added, that notwithstanding the insolvency of the makers, a demand was not only necessary, but it should be made upon the insolvents personally, (Davy, 515; 8 East. 244; 11 East. 114; Story on Bills, § 346, and cases cited,) of at their residence or place of business, in the same way and manner as if they were not insolvent.

The case, then, is simply this: the notary goes to the place of business of the makers; he finds there a person whose place of business is also there, who assumes to answer, and does answer, by refusing to pay the bill.

It cannot be denied that if the makers were at the time absent from the place of business, the presentment and demand would have been sufficient. The makers were bound to have some person there with funds to pay the note, and the question is thus reduced to the narrow inquiry, will it be presumed in favor of the regularity of the official act of the notary that the makers were absent, or that the assignee was in charge of the place of business ?

In Garnett v. Wandell (1 Starkie, 475) a bill, payable at a banker’s, was presented for payment after banking hours, between seven and eight in the evening, and a boy returned for answer, “No orders.” Lord Ellenborough held the presentment good, though after banking hours; and although there was no other evidence of the boy’s authority, his presence at the office, assuming to answer, was held prima facie sufficient. Lord Ellenborough says, “ The banker returned an answer by the mouth of his servant and non constat, but that he was stationed there for the express purpose.”

In The Cayuga Bank v. Hunt (2 Hill, 635) where the certificate of the notary was silent in respect to the hour of presentment, it was nevertheless presumed in favor of the due performance of official duty that the presentment was during the proper hours of business. The like presumption was held to exist in De Wolf v. Murray, in this court, (2 Sand. 166,) although the certificate stated that the office or place to which the bill was addressed, was closed and no person there to give answer-. To a like effect is Burbank v. Beach, (15 Barb. 326,) where the certificate not only did not state the time of day, but simply and only that the bill was presented at the office of the acceptors, and payment demanded which was refused.

The certificate of the notary in this case may, when read with the intendment reasonably presumable in favor of the official acts of the notary, be deemed naturally and fairly to import: that he went to the place of business of the makers; that he found there only their assignee; that he made the presentment to him and demanded payment, which was refused. We feel warranted in saying, that the proofs should be deemed to show prima facie a sufficient presentment, and to put the defendant upon proof of facts, if any exist, impeaching its sufficiency.

The judgment must therefore be affirmed, with costs.


author: By the Court. Duer, J.

text:
    Francis S. Altemus, and another v. The Mayor, Aldermen, etc., of the City of New York.
    The provisions in the ordinance of the corporation, organizing the street commissioner’s department are entirely consistent with those of the act of the legislature, entitled “An act to amend the charter of the city of Hew York, passed April 2d, 1849.”
    Hor are any of those provisions repealed by the act further to amend the charter of the city, passed April 12th, 1853.
    Ho contract for a sum exceeding $500 can be made by the street commissioner for' the performance of work in his department, although such contract may have been previously awarded by him to the lowest bidder, until a specific appropriation of a definite sum for the performance of the work shall havebeen made by the common council.
    Whether such appropriation shall or shall not be made, rests entirely in the discretion of the common council; and until it is made, there is no contract which) a court, either of law or equity, can enforce.
    It seems that the street commissioner is not in such a sense an officer or agent of the corporation as to render the corporation liable to an action for his neglect, or refusal to perform a duty imposed on him by an act of the legislature,
    (Before Duer, Bosworth and Woodruff, J.J.)
    Dec. 10th, 1856;
    Feb. 21st, 1857.

      Appeal by plaintiffs from, a judgment at Special Term, sustaining a demurrer to the complaint.
    The action was brought to recover damages against the corporation for their refusal by their officer, the street commissioner, to execute and deliver to Smith, Seekel & Co. certain contracts for the performance of work in cleaning the streets of the city, which had been awarded to said Smith, Seekel & Co., as the lowest bidders, under the proposals authorized by the street commissioner. The plaintiffs claimed, as assignees of Smith, Seekel & Co. The complaint averred, that when the proposals for these contracts were advertised; and at the time of opening such proposals, an appropriation had been duly made by the common council of the city for cleaning the streets of the city, and that such appropriation then remained unexpended.
    The demurrer assigned the following causes:—
    1st. Because it does not appeai in and by such complaint, that the appropriation alleged in the said complaint was sufficient in amount to defray or cover the expenses of the bids, or of the contract alleged in said complaint; and
    2d. Because the said complaint does not state facts sufficient to constitute a cause of action against the defendants, in favor of the s„aid plaintiffs.
    The complaint, amongst other allegations, contained the followipg:-^-“And the said plaintiffs further show, that in and by an act of the legislature of the state of New York, entitled “An act to amend the charter of the city of ¡New York, passed April 2d, 1849,” it was, among other things, enacted as follows:—
    “ Sec. 9, The executive power of the corporation shall b.e vested ip the mayor, the heads of departments, and such other executive officers as shall be, from time to time, created by law; and neither the common council nor any member or committee thereof, shall perform any executive business whatever, except such as is or shall be especially imposed on them by the laws of the state, and except that the board of alderman may approve or reject the nominations of the mayor, as hereinafter provided.
    “ Sec. 14. There shall be an executive department, to be denominated the ‘department of streets and lamps,’ which shall have .cognizance of procuring the necessary supplies for, and of, lighting the public streets and places lighted at the expense of the corporation, and of cleaning the public streets, and collecting the revenue arising from the sale of manure, and also of the transferring of butchers’ stalls in the public markets. The chief officer thereof shall be denominated the ‘commissioner of streets and lamps.’ There shall be three bureaus in this department, and the chief officers thereof shall be called the 1 superintendent of lamps and gas,’ ‘ superintendent of streets,’ and 1 superintendent of markets.’
    “Seo. 23. All contracts to be made or let by authority of the common council for work to be done or supplies to be furnished, and all sales of personal property, in the custody of the several departments or bureaus, shall be made by the appropriate heads of departments, under such regulations as shall be established by order of the common council. Every person elected or appointed to any office under the city government shall take or subscribe an oath or affirmation, before the Uiayor, faithfully to perform the duties of his office, which oath or affirmation shall be filed in the mayor’s office.”
    And the said plaintiffs further show, that in and by an act of the legislature of the state of Few York, entitled “ An act further to amend the charter of the city of Few York, passed April 12th, 1853,” it was, among other things, enacted as follows:
    “ Seo. 12. All work to be done, and all supplies to be furnished for the corporation, involving an expenditure of more than two hundred and fifty dollars, shall be by contract, founded on sealed bids, or on proposals made in compliance with public notice for the full period of ten days; and all such contracts, when given, shall be given to the lowest bidder, with adequate security. All such bids or proposals shall be opened by the heads of departments advertising for them, in the presence of the comptroller and such of the parties making them as may desire to be present."
    3d. And the said plaintiffs further show, that by certain by^ laws or ordinances, duly made, ordained, and passed by the common council of the city of Few York prior to the first day of January, in the year one thousand eight hundred and fifty-three, and prior to the passage of said act, it was, among other things, ordained as follows:
    “ Seo. 492. All supplies to be furnished, or work to be done for the corporation, when payable by assessments to be made and collected under the control of, or to be assessed or collected by the corporation, shall be furnished or performed by contract; and all supplies to be furnished, or work to be done for the corporation, when payable directly from the city treasury, shall also be done and supplied by contract, and except, also, for printing, and where provision is otherwise made by this ordinance.
    “Sec. 493. And it shall be the duty of each department to report, at the commencement of each stated session of the common council, the particulars of each contract made by such department since the preceding report, with all estimates made or received therefor, and the reasons for doing any work or furnishing any supplies, where the same is done or furnished without making a contract therefor.
    “ Sec. 494. All contracts to be entered into on the part of the corporation, for the purposes mentioned in the last section, must be authorized by the common council, (either by an appropriation previously made therefor, or by ordinance or resolution,) and, when so authorized, shall be made by the department under whose direction the supplies are to be furnished or the work performed, except that contracts for stationery for the common council, the board of supervisors, the board of health, and the departments, bureaus and officers of the corporation, and for fuel for the public buildings and offices, other than those attached to the almshouse department, shall be made by the comptroller
    “ Sec. 495. No contract shall be made until proposals therefor have been advertised, and estimates received and decided upon, as provided by this ordinance, except when otherwise provided by law; and no contract, for the payment of which an appropriation has not previously been made, shall be signed or executed until such contract, and all the estimates relating thereto, shall have been laid before the common council, and an appropriation made therefor, work and supplies to be done or furnished, where the same is to be paid by an assessment to be made and collected by the corporation, excepted.
    “ Sec. 495. The several departments who are empowered by section 493 to make contracts on the part of the corporation shall issue proposals for estimates therefor, and advertise the same in the corporation papers, for at least ten days before the day on which the estimates are to be opened.

      “ Seo. 496. The proposals for estimates shall be in such form as may be prescribed by the department making the same, and shall contain the following particulars :
    1. They shall require that the person making the estimates shall furnish the same, in a sealed envelope, to the head of the appropriate department, at his office, on or before a day and hour therein named, not less than ten days from the first publication thereof.
    2. They shall state the quantity and quality of the supplies, or the nature and extent, as near as possible, of the work required.
    3. They shall state that the estimates received will be publicly opened by the head of the department issuing the proposals, at his office, at a day and hour therein mentioned.
    4. They shall state the amount in which security is required for the performance of the contract.
    5. They shall state briefly the several matters required by the next four sections, to be contained in or to accompany the estimates.
    “ Seo. 501. At the time and place appointed for that purpose in the proposals, as prescribed by section 496, the head of the department issuing the proposals shall publicly open and read all estimates which he may have received for the contract mentioned in such proposals, and shall reject all estimates which are not furnished in conformity with sections 497, 498, and 499, and shall thereupon award the contract to the lowest bidder; or if he shall decline or shall not execute the contract, to the next lowest bidder, and so on until the same shall be executed; but no bid or estimate shall be rejected for any error of form, provided the person or persons making the estimate shall correct the same, and make it in conformity with the ordinance, within twenty-four hours after notice of any such defect.”
    The act of 1849 amending the charter, contains certain provisions which are not recited in the complaint, but which as they are referred to in the opinion of the. court, are necessary to be stated. Section 19, among other things, provides that “ no expense shall be incurred by any of the departments or officers thereof, whether the objects of expenditure shall have been ordered by the common council or not, unless an appropriation shall have been previously made concerning such.expense;" and section 21 pro-' vides that “the several executive departments, and the officers and clerks thereof shall be subject to the legislative regulations and directions of the common council, so far as the same shall not be inconsistent with this act, and the duties thereof shall be performed in accordance with the charter, and laws, and ordinances of this city.”

      J. Larocque,. for the plaintiffs, appellants.
    We contend that the provisions in the 9th section of the act of 1849, amending the charter of the city, “that the executive power of the corporation shall be vested in the mayor, the heads of departments, etc., and that neither the common council, nor any committee, nor any member thereof, shall perform any executive business whatever, except such as is or shall be imposed on them by the law of the state,” entirely preclude any power of consent or rejection by the common council, of the executive acts of the heads of departments, and no acts of the heads of departments are more certainly purely executive than contracts for cleaning the streets, especially as section 14 of the act of 1849, expressly vests in the department of streets and lamps the jurisdiction of cleaning the public streets, and the 23d section of the same act expressly provides that all contracts for work to be done or supplies to be furnished, shall be made by the appropriate heads of departments under such regulations as shall be established by ordinances of the common council, and we insist that this latter clause does not abridge or control the full powers vested in the heads of departments. It follows that the provision in section 494 of the city ordinance, that all contracts “ must be authorized by the common council, either by an appropriation previously made therefor, or by ordinance, or resolutionand the provision in section 495 that “no contract for the payment of which an appropriation has not previously been made, shall be signed or executed until such contract, and all estimates relating thereto, shall have been laid before the common council, and an appropriation made therefor,” are repugnant to the plain provisions of the act of 1849, and therefore wholly void, and we insist that if these provisions were not void under the act of 1849, they are inconsistent with, and therefore repealed by the 12th section of the act for the further amendment of the charter passed in 1853. Our next position is, that if the corporation had power to restrict the heads of departments from delivering contracts until an appropriation therefor'had been made, the allegation in the complaint that such an appropriation had been made, is sufficient under section 162 of the Code, prescribing the manner of alleging performance of a condition precedent. It is a mistake to suppose that the decision of this case ought to be governed by that in the case of Smith v. The Mayor. There is a wide difference between the cases, since in that now before the court, the street commissioner had given a written notice to Smith, Seckel & Co., of the acceptance of their bids, and Smith, Seckel & Co., in pursuance of that notice, had perfected the security required. The agreement thus made by the corporation, through its proper officer, with Smith, Seckel & Co., was an agreement for a contract, and on the refusal of the corporation to execute the contract formally, this action was properly brought to recover the damages sustained by-the .plaintiffs. For these reasons, the judgment of the Special Term was erroneous, and should be reversed.

      M. V. B. Wilcoxson, for the defendants, respondents.
    The complaint is fatally defective in not showing that an appropriation was at any time made by the common council for the payment of the expenses of the contracts set forth in the complaint, and at any rate, the complaint does not show that the appropriation alleged therein was sufficient to cover those expenses. Smith v. The Mayor, etc., of New York, (4 Sand. S. C. R. p. 221,) affirmed in Court of Appeals, Oct. 1853. It is also an objection to the complaint, that it does.not allege that the corporation had not contracted with any other person than Smith, Seckel & Co. to perform the work for which they contracted.
    But if it be admitted that it is sufficiently alleged that the common council had made a sufficient appropriation, they are not liable for the refusal of the street commissioner, Ebling, to execute the contracts in question. He was an independent public officer, and if his neglect or refusal was a tort, it was not a tort committed by the defendants, but by him alone; and the remedy of the plaintiffs was by a mandamus against him, to compel him to perform liis duty, or by an action on the case against him, for his neglect. (Tupping on Mandamus, p. 58; People ex rel. Morris v. Edmonds, 15 Barb. 529.) Finally, the mayor and corporation could not be bound until, by some act on their part, the bid of Smith, Seelcle & Co. had been accepted, and we insist' that this was so determined by the Court of Appeals, in the case to which we have before referred, of Smith v. The Mayor. The judgment appealed from ought, therefore, to be affirmed with costs.
   By the Court. Duer, J.

This case derives some importance from the fact that the tax-payers of the city are more or less interested in its decision.

The only questions that we propose to consider and decide, are those which relate to the validity and construction of certain sections in the ordinance of the common council, which is referred to in the complaint, for it will be seem, hereafter, that if the views of the learned counsel for the plaintiffs, upon these questions, cannot be sustained, the judgment appealed from must, of necessity, be affirmed.

The contention, on the part of the plaintiffs, is,

First, That sections 494 and 495 of the ordinance of the common council, were void when enacted, as plainly repugnant to certain provisions in the act of 1849 amending the charter of the city; or,

Second, That these sections, if not void in their origin, were fully repealed by the 12th section of the act of April, 1853.

We do not think that either proposition can rightfully be made a ground of our decision; to neither can we give our assent. As to the first, in our judgment, the provisions of the ordinance of the common council and those of the act of 1849, are so far from being manifestly repugnant, that, when properly examined and compared, they will be found to be, in all respects, consistent and harmonious.

Section 494 of the ordinance provides that all contracts on the part of the corporation must be authorized by the common council, either by an appropriation previously made therefor, by ordinance, or resolution; and when so authorized, with certain exceptions, shall be made by the department under whose direction the supplies are to be furnished, or the work performed; and section 495 provides, among other things, that no contract, for the payment of which an appropriation has not previously been made, shall be signed or executed until such contract, and all the estimates relating thereto, shall have been laid before the common council.

We certainly think that the fair construction of the section is, that no contract for supplies or work can rightfully be made by any department of the city government, until it shall have been authorized by a previous appropriation, ordinance, or resolution, of the common council; and it will be seen hereafter that this construction is consistent with the provisions of the act of 1849 ; but we are not disposed to say, that a contract, although not previously authorized, is not valid, when all the estimates relating thereto had been laid before the common council, and a necessary appropriation then been made. Perhaps, to such a case, the maxim that a subsequent adoption is equivalent to a prior authority, would be held to apply. The argument, however, on the part of the plaintiffs, is, that whatever construction may be given to these sections, they are wholly void, so far as they give any power to the common council to direct any contract to be made, or to make any appropriation for its completion ; and if this allegation be well founded, it follows that the head of each department, and not merely the street commissioner, has an unlimited and absolute control over the expenditures of his' department; and it follows that, in the exercise of his own discretion, he may determine what contracts for service or work, belonging to his department, shall be entered into, and what sums appropriated to their completion, without being subject to the control or interference of the common council, however flagrant may be the abuse of his discretion, and mischievous the consequences to which it leads. It is possible that the legislature intended to vest in the heads of departments this unlimited and uncontrolled authority, but that such was its intention we deem to be highly improbable. We think the words must be clear and explicit, or the implication plain and necessary, to justify the conclusion that the plaintiffs require us to adopt.

The provisions in the act of 1849, which are relied on as evidence that the intention of the legislature was such as has been asserted, are to be found in sections 14 and 9 of that act. Section 14 merely declares that the department of streets and lamps shall have cognizance, among other things, of cleaning the public streets, but it is obvious that these words may be fully satisfied by giving to the department a supervisory power over the cleaning of streets, and making it its duty to see that all contracts for that purpose shall be faithfully executed. They do not expressly, or by any reasonable implication, prohibit the common council from authorizing, or ratifying, all contracts to be made by the department, by a suitable ordinance, resolution, or appropriation. They are, therefore, not at all inconsistent with those provisions of the ordinance in question, to which they are alleged to be repugnant. '

The question, therefore, whether this repugnance exists, turns entirely upon the construction to be given to the 9th section of the act of 1849, which declares “ that the executive power of the corporation shall be vested in the mayor, the heads of departments, and such other executive officers as shall be, from time to time, created by law, and that neither the common council, nor any member or committee thereof, shall perform any executive business whatever.” Executive business includes all acts which a public officer is directed, or authorized, to perform by some legislative authority that he is bound to obey. The section forbids any such act to be performed by the common council, and vests an executive authority to perform them in the mayor and heads of departments. Hence, if an ordinance of the common council, directing a particular contract to be made, relative to any work of which the street department has cognizance, or appropriating a definite sum for the payment of the contract when made, is an executive act, there would seem no escape from the conclusion that the ordinance, as inconsistent with the expressed will of the legislature, must be void.

But the conclusive reply is, that when the work to be contracted for is for the benefit of the public, and is to be paid for out of a public fund, the authority to make the contract and an appropriation for its payment are not executive acts, but are properly and purely acts of legislation, and have uniformly been considered and treated as such by the legislature of the state as well as by the common council of the city. They are not, in their own nature, executive acts, nor are they declared to be so by any express words in the act of 1849; hence the argument built upon the 9th section of the act falls to the ground.

Nor is that all. There are other sections in the act of 1849 which, to our minds, render it apparent that it was the intention of the legislature that the heads of departments, in making contracts for services or work in their respective departments, should be subject to the direction and control of the common council; in other words, that the common council should possess and exercise, in relation to such contracts, the very powers that, in order to sustain the argument for the plaintiffs, are now denied to it.

Thus § 23 declares, that “ all contracts to be made or let by the authority of the common council, for work to be done or supplies to be furnished, shall be made by the appropriate heads of departments, under such regulations as shall be established by ordinances of the common council.” These provisions, in our judgment, are alone sufficient to prove that the intentions of the legislature, as to the powers to be exercised by the common council, were exactly such as we have stated. They plainly give to the common council the power of determining what contracts shall be made in each department of the city government for work to be done or supplies to be furnished, and of prescribing by proper ordinances the course to be followed by the head of the department in making the contracts, that the common council has authorized and instructed him to make. It appears to us that sections 494 and 495, considering each section as an ordinance, were ordinances of this character, and the regulations which they contain a legitimate exercise of the powers that the provisions we have recited—if not in terms, yet by their necessary construction—were meant to confer.

Section 23 is set forth in the complaint; but there are other sections in the act of 1849 not set forth in the complaint nor cited on the argument which, we think, are conclusive to show that the intentions of the legislature were exactly those which we have held that section 23 sufficiently expresses.

The sections to which we refer are sections 21 and 19.

Section 21 provides that “the several executive departments, and the officers and clerks thereof, shall be subject to the legislative regulations and directions of the common council, so far as the same shall not be inconsistent with this act.” We have already shown that the regulations alleged to be void in sections 494 and 495 are legislative in their scope and objects, and as such not inconsistent with any provisions in the act of 1849; they are, therefore, regulations that the common council had authority to make, =and the executive departments and their officers were bound to obey.

We pass to section 19, the terms of which, if we mistake not, put the question we are considering completely at rest. Among other things, this section provides that “ no expense shall be incurred by any of the departments or officers thereof, whether the object of the expenditure shall have been ordered by the common council or not, unless an appropriation shall have been previously made concerning such expense.”

We can see no reason whatever, for doubting that among the expenses that are here forbidden to be incurred without a previous appropriation are the necessary expenses of fulfilling a contract made by the head of a department, although the contract may have been awarded by him to the lowest bidder. Indeed, we are satisfied that contract expenses are those that were principally in the view of the legislature, and not those comparatively trifling ones for which no contract is required. Hence the provision in section 495 of the ordinance of the common council that “ no contract, for the payment of which an appropriation has not previously been made, shall be signed or executed until such contract and all the estimates relating thereto shall have been laid before the common council, and an apprppriation been made therefor,” so far from contradicting in any respect the act of 1849, carries out by expressing more fully some of its actual provisions. The law and the ordinance, although in different terms, equally forbid that the necessary expenses of a contract made by the head of a department shall be incurred until án appropriation to cover those expenses shall have been made, and we think they equally imply, that whether such an appropriation shall or shall not be made rests entirely in the discretion of the common council. Hence, had there been no ordinance on the subject, the necessity created by the law of a previous appropriation to warrant the completion of a contract, would still exist, and, unless the law has been repealed, the refusal or omission by the common council to make the appropriation would still be a bar to the maintenance of an action like the present, against the corporation or any of its officers.

It follows from the observations that have been made, that the provisions in sections 494 and 495, were not as is alleged, void in their origin, but on the contrary, were binding from the time of their enactment on the executive departments, their heads and officers; consequently, unless they were repealed by the act of 1853, they were in force when the contracts mentioned in the complaint were awarded to the lowest bidders; so that if it shall appear that the conditions they prescribe have not been complied with, it is certain that the present action cannot be maintained. The question of their repeal is therefore next to be considered.

The only section in the act of 1853, to which the counsel for the plaintiffs referred in support of his argument, is the 12th, and the only words in that section upon which he relied, are those which declare that “ all contracts for work to be done or supplies to. be furnished for the corporation when given, shall be given to the lowest bidder with adequate security.” If the words, “shall be given to the lowest bidder” must of necessity be understood as meaning that a contract for work or supplies must be delivered fully executed to the lowest bidder, and when so delivered be valid in his hand, although not made under any previous authority from the common council, and although no appropriations for its expenses shall have been made, it cannot be denied, that they effectually repeal, not only the provisions of the ordinances —as the sections in question may with propriety be termed—but equally those in the act of 1849, (§ 19,) with which those of this ordinance substantially correspond.

It is not easy to believe that this sweeping repeal was contemplated by the legislature. It is not easy to believe, that if intended, the intention would not have been expressed in positive terms; hence, if the words, “ shall be given to the lowest bidder,” may be understood in a sense not involving the repeal contended for, it is such an interpretation that we shall hold ourselves bound to give to them. It is an elementary rule that an existing statute can only be abrogated by express words, or by a necessary implication. Where there are no express words of repeal, a subsequent statute never operates as repeal of a prior, unless their provisions are manifestly inconsistent, and by no reasonable construction can be reconciled. When a consistent interpretation may be given to .provisions apparently conflicting, it is the duty of the court to adopt it as probably expressing the true intention of the legislature. We think that there is no difficulty in applying those rules to the case before us. We are satisfied that the words “shall be given,” etc., in the 12th section of the act of 1853, may and ought to be understood in a sense that will render them entirely consistent with the provisions in section 19 of the act of 1849, and consequently with the ordinances of the common council, nor do we doubt, that the interpretation that we shall follow is that which truly expresses the intention of the legislature.

Section 501 of the ordinance referred to in the complaint, provides that where contracts have been proposed for a particular work, in conformity to the'terms prescribed by previous sections of the ordinance, the head of the department in which the work is to be performed, “ shall award the contract to the lowest bidder,” and our conviction is, that these words in the ordinance and the words in the act of 1853, that “ the contract, when given, shall be given to the lowest bidder,” express, and were designed to express, exactly the same meaning, and it is plain, that the latter words thus construed are entirely consistent both with the act of 1849, and with the ordinances of the common council. The contract must be given to the lowest bidder, but it is not to be signed and executed until an appropriation for its expenses has been made, and in this, if the word “given,” as we hold, expresses no more than “ awarded,” there is certainly no contradiction.

The state of the law, as it now exists, appears to be this: When a contract is sanctioned by a previous appropriation for its expenses, the lowest bidder to whom it is awarded, and by whom the security required is given, has an immediate right to demand its formal execution and delivery; where there has been no such previous appropriation, his rights are suspended, and the contract remains incomplete, until the necessary appropriation has been made, and that when the common council refuses to make the necessary appropriation the contract is wholly defeated, and its formal execution and delivery by the head of the department by whom it has been made and awarded, as acts in plain violation of his duty, would be null and void.

The next allegation on the part of the plaintiffs is, that even upon the supposition that an appropriation by the common council for the expenses of a contract is a condition precedent to its final execution and delivery, the complaint, as framed, contains a sufficient averment that such an appropriation was in fact made, and consequently, that if the right of the plaintiffs to maintain this action depends upon the truth of this averment, the demurrer to the complaint ought to have been overruled, and an answer have been required.

The averment in the complaint which is relied on as sufficient, is, that before the several contracts mentioned in the complaint were awarded to the lowest bidders, “ an appropriation had been duly made by the common council of the city for cleaning the streets of the city, and that such appropriation then remained unexpended.” We have no-right to say, although such is undoubtedly the fact, that no appropriation for cleaning the streets of the city was, or could have been made by the common council since the truth of the averment, as made, is admitted by the demurrer, but it is quite certain, that a general appropriation for cleaning the streets is not such an appropriation as section 19 in the act of 1849, and section 495 in the ordinance of the common council,require to be made as a condition precedent to the final signing and execution of a contract. The appropriation that they require is not general but specific, and is necessarily limited in its amount by the nature and objects of the particular contract to which alone it refers.

We have already shown that the general words, in section 19 of the act, embrace expenditures under a contract, and they in effect forbid any such expenditure to be made even when its objects have been ordered by the common council, “ unless an appropriation shall have been previously made concerning such expense,” and these last words, we do not doubt, are equivalent in meaning to providing for such expense.

The appropriation which section 495 of the ordinance required to be made as a condition precedent to the signing or execution of a contract is, by express words, limited to “ the payment of the contract; that is limited to a sum sufficient to cover the necessary expenses of the contract.”

It seems to us, therefore, quite evident, that the appropriation which the act of 1849, and the ordinance of the common council require to be made is in all cases limited to the expenses of the contract to which alone the appropriation relates. In other words, that the appropriation meant is, in all cases, of such a definite sum as, in the judgment of the common council, will be adequate to defray the necessary or probable expenses of the contract. Indeed it is for the purpose of enabling the common council to determine whether, from the terms of a contract, a larger expenditure will be necessary than in prudence or justice ought to be made, that the contract itself, and the estimates upon which it was founded, are required to be laid before it.

We hold it, therefore, to be certain that it is a specific appropriation, limited to the expenses of a contract, that is made a condition precedent to the signing or execution of any separate contract made by a street commissioner or any other head of a department. Hence it is such an appropriation that, if this action could be suffered to proceed, the plaintiffs would be bound to prove upon the trial, and it is such an appropriation that, as a material and issuable fact, constituting in part the cause of action, they were bound to aver in their complaint. The complaint contains no such averment and was, therefore, justly liable to a demurrer upon the ground that the facts which it sets forth are not sufficient to constitute a cause of action.

We have now considered and decided all the questions that were raised and argued by the able counsel for the plaintiffs, relative to the validity and construction of the ordinances (sections 494 and 495) of the common council, and relative to the powers and duties of the common council and of the street commissioner, under these ordinances and under the laws of the state, the acts of 1849 and 1853, and the necessary result from our decision of these questions is, that the judgment at Special Term, sustaining the demurrer to the complaint, must be affirmed, with costs.

It was earnestly insisted by the counsel for the plaintiffs that there was such wide difference between this case and that of Smith v. The Mayor, etc., (4 Sand. S. C. Rep. p. 220,) in which the judgment of this court was affirmed in the Court of Appeals, that they deprived the judgment so affirmed of any force or application as an authority; that the differences exist, which the counsel pointed out, cannot be denied; that they produced the effect for which he contended, we cannot admit. There are several questions that were virtually decided in Smith v. The Mayor, etc., exactly as the same questions have now been decided by ourselves and there are two questions, directly bearing upon the merits of the controversy, that in the Court of Appeals were expressly decided, namely, that whether an appropriation for a contract shall or shall not be made in any given case, rests entirely in the discretion of the common council, and that, when the appropriation is withheld, no action is maintainable against the corporation. Mr. Justice Willard, in delivering the unanimous judgment of the court, said, that the 494th section of the corporation ordinances, which provides that no contract shall be signed or executed until the contract, and all the estimates relating thereto, shall have been laid before the common council, and appropriation made therefor, would be entirely senseless, “ unless the corporation have the right to refuse to enter into the contract, and to refuse the appropriation to carry it out,” and that, until the final action of the corporation, the proceeding is incomplete, and liable to be defeated by the refusal of that body to proceed further.”

Holding, as we have done, that the complaint in this case contains no averment that any appropriation was made by the common council for the contracts awarded by the street commissioner, we are satisfied that this decision of the Court of Appeals ought to control our own, even had we entertained opposite views upon the questions it embraces. The contracts, therefore, that were awarded to Smith, Seckel & Co., as the lowest bidders, as there was no previous appropriation for their expenses, were inchoate and incomplete, and by the refusal of the common council to make the necessary appropriation, were rendered and became wholly void. From that time there was no contract for which, or the breach of which, an action at law could be maintained against the corporation, or the specific performance of which could be decreed in equity.

Whether, upon the supposition that the complaint contains a sufficient averment that a previous appropriation had been made for the contracts in question, the corporation would be liable for the refusal of the street commissioner to sign or execute the contracts, is a question that we deem it needless to determine. If the contracts were made under a previous appropriation, the act of 1849 made it the duty of the commissioner to execute and deliver them; but upon what principle the corporation could be made liable for his violation of a personal duty imposed upon him by the legislature, it is not easy to understand; as the question, however, in our opinion, is not presented by the case, we leave it undecided, we do not sit here to determine questions that we regard as hypothetical.

Judgment at Special Term affirmed with costs.