text:
    The People v. Downing and others.
    A decree or judgment of a court of competent jurisdiction cannot be impeached for fraud in a collateral proceeding. There must be a direct application to set it aside for that cause.
    In an action upon an administration bond, which by a decree of the surrogate was directed to be prosecuted, evidence tending to show that the decree was obtained by fraud or collusion is inadmissible.
    It is no answer to an action on such a bond, that the parties interested in the decree had agreed that the administrator in whose hands the funds were, might retain the same by paying interest therefor. Such a defence cannot be received without opening the decree.
    Although the condition of an administration bond is joint, the obligation of the administrators to account is in its nature several. Henee a decree upon such accounting is properly, if not necessarily several. • An action upon the bond is therefore proper, founded upon such several accounting.
    It is no defence to an action upon an administration bond that one of the defendants, who was a co-administrator with the one who made the default, is entitled to a share in the decree. The action being in the name of the people, who are the obligees of the bond, the recovery must be for the entire amount according to the decree, without reference to the interests of the parties entitled to share in it. If there be any question as to the distribution of the fund, it is to be determined in the surrogate’s court.
    (Before Oakley, Oh. J., and Campbell and Paine, J. J.)
    Sept. 21;
    Sept. 28, 1850.
    This was an action of debt against James Raymond and William H. Sackett, administrators of Henry Raymond, deceased, and against Downing and Falconer, tbeir sureties, in tbe bond given upon granting tbe letters of administration.
    Tbe declaration is fully stated in tbe report of tbe case on tbe demurrer thereto. (Ante, vol. ii. p. 81.)
    Tbe defendants, Sackett and Raymond, did not appear. Downing and Falconer pleaded non est factum,-and by stipulation were allowed under it to give evidence of special matter. Upon the trial before Yanderpoel, J., in June, 1819, the plaintiff’s counsel read in evidence the administration bond, the petition and order for accounting, and the decree of the surrogate upon such accounting, dated September 16, 1816, finding that the defendant Sackett had remaining in his hand, as administrator, the sum of $1986.10, and directing him to pay the one-third part to the widow of the intestate, and the remainder to his son James, the before-named administrator. Also the petition of the widow, showing that the defendant Sackett had not complied with the order to pay over the fund remaining in his hands, and the decree of the surrogate upon such petition, directing the bond to be prosecuted. The plaintiff then rested.
    The defendant’s counsel offered to prove that Fanny Baymond, the widow, and James Baymond, the son, had released the administrators from paying over fhe money to them, and agreed that the defendant Sackett might retain it for his own use, he paying interest therefor; which evidence was objected to, and excluded, on the ground that such arrangement, if ever made, was prior to the surrogate’s order of 16 Sept., 1816.
    The defendant’s counsel further offered to prove that by collusion between the parties, viz., Sackett, and Fanny and James Baymond, the surrogate was induced, on a false and fraudulent accounting, to make his decree for the payment of more money than was due from the administrators, or either of them, with an understanding between the parties that Sackett was to refute to pay, and a suit was then to be brought against the sureties, both Sackett and Baymond being insolvent, and Fanny Baymond dead; which testimony was objecte'd to, and excluded by the court.
    The defendant’s counsel then moved for a nonsuit, on the grounds: That the condition of the bond was joint, and the order to pay was several, viz., on Sackett alone, and- not on Sackett and Baymond; That if the defendants, the sureties, were to be held liable for the act of. one, as for the acts of "both administrators,- and thus made responsible on the bond, the plaintiffs were not entitled to recover, tbe administrator, James Raymond, being tbe only party in interest, and seeking thus to take advantage of bis own wrong; — and, 3. That the defendants were not liable, except for tbe joint acts of tbe administrators.
    Tbe motion for a nonsuit was denied. Tbe defendant’s counsel further insisted, and requested tbe court to charge, that tbe verdict for tbe plaintiff should be only for tbe one-tbird ordered to be paid to Fanny Raymond, the order having been made on her sole petition. Tbe court declined so to charge tbe jury, and tbe defendant’s counsel excepted to tbe decisions adverse to them.
    Tbe jury, under tbe charge of tbe court, found a verdict for tbe plaintiff for $2303.11. The defendants moved for a new trial.

      Jcrna. Miller, for tbe plaintiff.

      F. Tillou, for tbe defendant.
   By the Court.

Oakley, Ch. J.

This was an action brought in the name of tbe people, on an administration bond, against tbe defendants, who were sureties. Administration was granted on tbe estate of Henry Raymond to James Raymond and W. H. Sackett. They proceeded in the administration of tbe estate, and not managing it satisfactorily to tbe widow, she presented her petition to tbe surrogate to have them account. The accounting took place, and it resulted in a decree that Sackett had in his possession property of the estate of Henry Raymond, to a large amount; and be was ordered to pay over to tbe widow one-tbird, and the balance to James Raymond bis co-administrator. A demand was made upon Sackett to comply with tbe terms of tbe decree, which be refused, and this suit was instituted. Tbe declaration sets out all tbe proceedings before the surrogate. Tbe defendants allege in their defence that the decree in tbe surrogate’s court grew out of a fraudulent conspiracy between ‘the widow and the two administrators; and that Sackett, being utterly insolvent and irresponsible, suffered judgment to go against him, by default, to a larger amount than was due.

The question to be determined is, whether such a defence can be interposed. We think not. The decree against Sackett was obtained in a competent court, and cannot be impeached in a collateral proceeding. There is a way in which the decree, if it has been obtained through fraud, may be vacated; but that must be by a direct application for the purpose. No judgment rendered in a court of competent jurisdiction can be impeached in a collateral matter for fraud.

Several cases were cited by counsel from the courts of other states, which are said to sustain such a defence. But however the rule may be elsewhere, in reference to this question, it clearly is not the law here.

There were several other questions presented in the case. An offer was made by the'defendant to prove that Fanny Rajunond and James Raymond had, before the decree of the surrogate, agreed with Sackett, the administrator, that he might retain the money in his hands, he paying them interest for it. If such an agreement had any operation, it might have been a reason why the decree should not have been made; but it is clearly no answer to the action on the bond, for the non-performance of it. Such a defence cannot be received without opening the decree.

It was objected, secondly, that the condition of the bond being joint, a separate action against Sackett does not come within it. Although the condition is joint, the obligation of the administrators to account is, in its nature, several, and the decree, therefore, is properly, if not necessarily several.

Thirdly, It was contended that there could be no recovery for the share of the estate belonging to James Raymond, he being one of the defendants, and the action in part being for his benefit. The action is on the bond, in the name of the people, the obligees. And the recovery must be for the amount of the money in the hands of the defaulting administrator, according ■to the decree, without reference to the rights of tiie parties ultimately claiming it. When the money comes into the surrogate’s court, questions may arise as to the disposition of it, which cannot properly be considered here.

The motion for a new trial must be denied.


source: Caselaw Access Project

author: Mason, J.

license: Public Domain

text:
    Sniffen v. The Mayor, Aldermen, and Commonalty of the City of New York.
    The term “ salary,” of itself, imports a compensation for personal services, and not the repayment of moneys expended in the discharge of the duties of an office. Therefore, where one is appointed to a municipal office to which is attached a fixed salary, and its duties necessarily require, besides his personal service^, the services of a clerk or assistant, he is entitled to receive from the municipal authorities the necessary and reasonable expenses of the hire of such clerk.
    If a previous ordinance or usage have existed, fixing a rate of compensation for such assistant, the officer is not warranted in exceeding that rate without the express sanction of the corporation.
    Under the revised ordinances of 1845, the corporation attorney is entitled to receive from the corporation, besides his salary, the necessary expenses of clerk hire, not exceeding the rate fixed in the ordinance of 1838-1839.
    He is not entitled to recover against the corporation any of the costs of suits, other than his disbursements ; nor to retain the sums paid to him under the ordinance, on the settlement, without suit, of complaints made to him for violations of the by-laws and ordinances of the city. He must account for such sums to the corporation.
    (Before Duer, Mason, and Campbell, J. J.)
    June 6;
    Sept. 28, 1850.
    This was a suit commenced in the supreme court, .to recover for services as attorney and counsel, and for moneys paid. The defendants pleaded the general issue with’a notice of set off. The suit was tried before referees, who reported in favor of the plaintiff for a part of his claim. A motion was made in this court, after the transfer of the cause from the supreme court, to set aside the report. There were several disputed claims, but the report of the case, and of the opinion at large, is confined to that respecting clerk hire, and the facts connected with it, which were as follows:

      The plaintiff-was>, appointed-by the- common; council of the city of New York to-the office of corporation attorney:on the. 13th of May,. 1845, and continued to .-discharge- its duties till: December 12th, 18461' On his appointment, -he employed and paid a person to assist him as clerk or assistant in that office, at $750 a year, and he also had other clerks, who assisted him from time to time in the discharge of his duties, to whom he paid from six to seven dollars per week. It was proved that these-clerks-were all necessary in order, to perform the duties of the office.
    It was admitted by the parties, that during the time the plaintiff held the office of corporation attorney, the defendants provided for him an office in the Old Alms House building, and which was known and designated as the corporation attorney’s office; that they had furnished and provided fuel for such office, and paid for the stationery used-therein, and for the printing done for the office during that time. The plaintiff's counsel admitted, at the request of the defendants’ counsel, that the plaintiff had .received-his salary, at the'rate of $2000 per annum, ■ from the 13th • May, 1845, the time of his appointment, to 1st of November, 1846, $2923.91, in full of $2000 a year, to that time. The-salary from Nov. 1st to Dec. 12th, 1846, had not been paid.
    The following ordinances of the-common council- of the city of New York were produced in evidence:
    Revised ordinances of 1838-1839, from chap. 4th, title 2d.
    ' “ Of the attorney to the corporation, cfrc. — § 1. A suitable person, of the degree of attorney at-law in the supreme court, shall be appointed as ■ attorney to the corporation. - It shall be his duty to commence and prosecute all suits for breaches of the laws and ordinances of:-the corporation; all suits-arising under the charter-of this city; and all- actions -upon-the laws of this state, in cases'where the penalty is given to this corporation or to the overseers of the poor of this city. ■
    - “ §'2. The attorney of th'e-corporation shall hereafter receive a salary of two thousand two hundred and-fifty- dollars per annum, payable quarterly; and the further sum, in lieu of clerk hire, of seven hundred and- fifty dollars- per annum, payable quarterly, in lieu of all fees or other charges against the corporation, or against any other person or persons, on any complaint for a violation of any ordinance of the common council,” &c. (The residue of the section is not material to the point reported.)
    By an ordinance adopted May 29, 1844, the salary was reduced to two thousand dollars per annum, and the provision relative to clerk hire was abolished.
    Revised ordinances of 1845, from cjiap. 4th, title 2d.
    Section 1, precisely the same as the first section of the ordinance of 1838-1839, above inserted.
    “ § 2. The attorney of the corporation shall hereafter receive a salary of two thousand dollars per annum, payable quarterly; in lieu of all fees or other charges against the corporation, or against any other person, or persons, on any complaint for a violation of any ordinance of the common council.”

      A. J. Willard, for the defendants.

      U. H. Burloch, for the plaintiff.
   By the Court.

Mason, J.

The first question we shall consider is as to the right of the plaintiff to charge the defendants with the sums paid for clerk hire.

It was not contended by the counsel for the defendants that the business of the office could have been performed without the aid of clerks, or that the sums paid them exceeded the value of their services, but it was insisted that by the true construction of the corporation ordinances on this subject, the plaintiff was bound to defray the expense out of his own pocket.

The ordinance of 1839, which first rendered the office of attorney to the corporation a salaried office, ordained as follows: “ The attorney of the corporation shall hereafter receive a salary of $2250 per annum, payable quarterly, [and the further sum, in lieu of clerk hire, of $750, payable quarterly,] in lieu of all fees or other charges against the corporation, or against any other person or persons, on any complaint, for a violation of any ordinance of the common council.” (By-laws & Ord. Corp. 1839, revised, 1838-9, tit. 2, ch. 4.) In the month of May, 1844, the salary was reduced to $2000, and the allowance for clerk hire was by resolution of. the common council abolished. And in the revision of the corporation ordinances of 1845, this section reads as follows: “ The attorney of the corporation shall hereafter receive a salary of $2000 per annum in lieu of all fees or other charges, &c., &c.” And the argument of the counsel for the defendants was, that the allowance for clerk hire being stricken out of the ordinance, the plaintiff must pay the expense himself.

But the term “salary” of itself imports a compensation for personal services, and not the repayment of moneys expended in the discharge of the duties of the office; and had the ordinance simply said, the attorney shall receive a salary of $2000, he would in our judgment have been entitled to have received that amount free and discharged of all expenses necessarily incurred in conducting, the business. Such is certainly tbe general understanding and practice with regard to salaried officers. We are not aware of any salaried officer of the general, state, or city government, or even of our incorporated monied institututions, who- is .required to defray such expenses out of his salary. The corporation themselves have given a practical construction to the act. They made an allowance for clerk hire in the act of 1839, and it is in evidence in this case that they provided the plaintiff with an office, and fuel, and stationery, as long as he, held the situation.

The ordinance, however, does not merely give a salary, but states specifically the services in consideration of which it is given; it is in lieu of all fees or other charges against the corporation, or against any other person or persons, on any complaint for a violation of any ordinance of the common council. Instead of receiving the fees and charges to which he might be entitled for each particular service, the corporation retain the benefit of these fees to themselves, and in consideration thereof stipulate to pay him a stipulated sum per annum. He was bound, for the salary, to perform all the services mentioned in the ordinance, whatever the fees according to the established rates might have amounted to. And, on the, other hand, the corporation were bound to pay him the full sum without any deduction, and their obligation to do this was not at all affected by their omission to make an appropriation for the necessary expenses of the office. This they were bound to do at any rate in order to fulfil their contract with the attorney, and they cannot make their omission to perform their duty in one respect^the justification of a breach of contract in another. The argument of the defendant’s counsel would be sound, if the obligation to pay the clerk hire depended on the fact of their making an appropriation for that object; but they were bound in good faith to do so, and the appropriation is nothing more than the recognition and performance of a previous duty.

We think, therefore, that the defendants are chargeable with this clerk hire. The only question is as to the amount. The allowance which the corporation had formerly made was $750. ' They had themselves for a number of years recognized this as a reasonable and necessary sum for that object, and the plaintiff, on, his entering upon the duties of the office, was justified, we think, in the absence of any express provision, to go to that extent. Their consent might fairly have been presumed to such an amount. Although it would have been more prudent for him to have applied to them on the subject, still his omission to do so did not, we think, free them from the obligation to pay a reasonable sum. If he was imprudent in not asking for an appropriation, they were guilty of a breach of duty in not making it without an application.

But we do not think he was justified in exceeding the amount which had been formerly allowed, without the express permission of the defendants. They were on the spot, and could have been applied to. If from the increase of business a larger number of clerks was necessary, it was for them and not the plaintiff to determine what additional expense should be incurred. Beyond the amount previously allowed, no consent could be inferred. Our opinion therefore is, that the plaintiff is entitled to be allowed for clerk hire at tbe rate of $750 per annum, and no more.

(The judge then proceeded to examine the other points in dispute, as to which it is deemed necessary to state merely the decision of the court, which was, first, that the plaintiff was not entitled to recover the taxable costs in suits prosecuted by him as corporation attorney in' courts of record; but w^s to be allowed his disbursements expended in such suits, where the same had not been collected of the adverse party. Second, that the plaintiff was not entitled' to retain to his own use the sums received by him on the settlement, without suit, of complaints made to him of breaches of the laws and ordinances of the corporation, and for other penalties falling within his province as corporation attorney. That the sums so received belonged to the corporation, and he must account for the same.)

Report of the referees modified accordingly.


text:
    Haggart and Dunn v. E. D. and G. D. Morgan.

    A stipulation in a sealed contract for the erection of a building, providing that all disputes which shall arise respecting the work or the finish of the building, should be settled by arbitration, cannot oiist the jurisdiction of the courts as to such disputes.
    In a suit upon a bond given to obtain the discharge of property seized upon the warrant of’ attachment against a debtor as non-resident, the defendants cannot show that the debtor was a resident of the state at the time the attachment. was issued.
    Where a debtor goes to a foreign state and remains absent three years, he is a non-resident within the meaning of the act relative to absent and absconding debtors, although he has all the time intended to return to this country. Per Curiam.

    (Before Duek and Mason, J. J.)
    Sept. ;
    Oct. 19, 1850.

      This was a suit brought in the supreme court, on a. bond executed by Jacob Brandegee as principal and the above defendants as sureties, the suit being continued against the latter as survivors of Brandegee. The bond, dated November 18th, 1847, -recited that -the. -plaintiffs, on the 15th November, 1847, procured, an attachment to -be issued against-the-real and personal estate- of Brandegee as a non-resident' debtor, under which the sheriff had attached all B.’s estate, and its condition was that the obligors should pay to the attaching creditors -the amount -justly due and owing to them by B. at the issuing of the attachment. The declaration set forth that B. was then indebted.to the plaintiffs $800, -with"interest from November 1st,. 1844, on a sealed contract, for work, -labor, and materials. - The defendants pleaded non est. factum, and attached a notice, that they would prove various matters of defence.
    The cause was tried in October,-.1848, before -Mr. -Justice Strong, of the supreme court. The plaintiffs proved a sealed agreement between them and Brandegee, dated' August 12th, 1844, for erecting a rear building to the house No.-3 Le Roy Place, for- which he was to pay .them $200Q,. in instalments, the last $800 when the' work was completed. The agreement .con-, tained the following clause: “ And it is further agreed, that in case any dispute should arise .respecting the work or finish of the building, the same shall be settled forthwith by arbitrators in the usual way.”
    The plaintiffs proved that they built the rear-addition, and it appeared the defendant claimed a deduction from the contract price, .for defective work and materials, &c.' ■ • ■
    The defendant moved for a nonsuit, on -the - ground that the plaintiffs, by the contract, were bound to arbitrate, and Brandegee had not refused,. but had endeavored-to-carry out the stipulation. The motion was overruled. The defendants then offered to prove, that at the time of taking out the attachment, and at .the time of giving the bond in this suit, Brandegee was. not a non-resident, b,ut a resident of the oity of.-New York,-that his house was at No.: 3 Le Roy Place; and that he'was at housekeeping there at the time, and had been for many years, that his absence was temporary at New Orleans, and that he was there detained by necessary attendance to a law-suit, and that he had been so detained during his whole absence of about three years, that he left here in November, 1844, and returned in the spring of 1848. The court overruled this offer, and refused to permit the evidence, on the ground; — 1st. That the offer itself showed the defendant Brandegee to be a non-resident at the time the attachment issued, within the spirit of the act. 2d. That the giving the bond to discharge the attachment prevented him from showing such fact. To which ruling the defendant’s counsel excepted. .
    It appeared that the parties had joined in an attempt to arbitrate in November, 1844, but the arbitration proved abortive; and proof was given by each party to show that it was the fault of the other.
    .The judge charged the jury that if the plaintiffs had made no attempt to arbitrate, or if the arbitration fell through by reason of their fault, they could not recover. ■ If they had made a fair attempt to arbitrate, and it fell through by Brandegee’s fault, they were entitled to recover what was' actually due to them on the contract. The defendant excepted to the charge. The jury found a verdict for the plaintiffs, and the defendants moved in this court for a new trial on the case.

      J. H. Patten, for the defendants.

      N. B. Blunt, for the plaintiffs.

         This judgment was affirmed in the court of appeals.

   By the Court.

Mason, J.

We think that the motion for a nonsuit in this case was properly denied. It is well-settled law that an agreement, like the one contained in the article between the plaintiffs and Brandegee, to refer all disputes that might arise in the progress of the work to arbitration, cannot oust the jurisdiction of the courts, and that it is no defence to a suit. (Chitty on Contracts, 792, and cases there cited.) But the objection comes with a very ill grace from the defendants, since the plaintiffs did all in their power to comply with the agreement to refer, and the settlement of the dispute in that way was defeated only by a refusal on tbe part of Brandegee to extend for a few days the time of making the award.

The evidence offered to show that Brandegee was a resident, was also properly excluded. The bond in suit was conditioned to pay the sum justly due on account of the debt sworn to by the plaintiffs in their application for the attachment; and the only question under the pleadings, after proof of the due execution of the bond, was, whether any, and if any, what amount was due. In the case of Franklin and others v. Pendleton, we lately held that a party who had given a bond to relieve a vessel from an attachment, was estopped from contesting, in a suit on the bond, the regularity of the proceedings on which the attachment was issued. The provisions of the statute under the act authorizing the attachment of vessels, and the act respecting attachments against absconding, concealed, and non-resident debtors, are similar in the matter of giving bonds to discharge the attachment, and the same principles govern in each. Besides, if Brandegee had wished to contest the fact of his non-residence, the statute pointed out a mode of doing so. Sections 44 to 49, both inclusive, contain minute provisions as to the course to be pursued in such cases. But instead of contesting the fact of non-residence in the manner prescribed in the statute, the defendants executed a bond which virtually admitted that the attachment was properly issued. To allow him to dispute that fact in a suit on the bond itself would, we think, be a violation of the letter and spirit of the act.

It was well observed by the judge on the trial, that th.e facts which the defendants offered to prove showed that Brandegee was a non-resident debtor within the meaning of the statute. He had left the state without paying this demand, or making provision for payment, and he had remained abroad for upwards of three years. During all this time the plaintiffs had been deprived of their just dues; and it would be strange indeed if they could not, after such a prolonged absence, make their debtor’s property to respond for this debt, because he had all this time the purpose of returning- to the state when it might , suit his convenience.

The charge of the judge was, we think,- erroneous. He. ruled, in effect, that the agreement to refer was a bar. to the. action, •unless the arbitration had fallen through by the fault of-Bran■degee; and if the jury, upon this ruling,' had found for the defendants, we should have been obliged, on exceptions properly taken by the plaintiffs, t.o have set .the verdict aside. But, clearly, the defendants cannot avail themselves of the error of the judge, which was in their favor.

Motion for a new trial denied.

         Reported, ante, yol. iii. p. 5'72.


text:
    O’Donnell and Clark v. Kelsey.
    A grant by the legislature to numerous individuals, authorizing them to fill up in front of their lands the land under the water of a river or bay to a fixed exterior line, is a grant to each of the shore proprietors in severalty, of such right to the extent of the land under water in front of his own shore.
    In order to ascertain the boundary line between such coterminous proprietors in the made land, the whole of the old' and the whole of the new line are to be taken into consideration, so that each may have his due proportion of water front.
    The rule, that in determining the right to land made from the bed of a river or bay, the boundary line between coterminous proprietors on a curved shore shall equally divide the angle of indentation, is incapable of application where the shore is curved diagonally, and the outer or permanent line is straight: ■
    The law gives no fixed and certain -mode of drawing the boundary line in such a case. It only lays down a general principle, which shall govern in cases of that nature; which is, that each riparian proprietor shall receive his ratable share of front on the outer or new water line, and that the boundary lines between coterminous proprietors are to be drawn at right angles, or diver- ■ gent or convergent to the shore, according to whether the new exterior. line equals, exceeds, or falls short of the old shore line.
    ,The settlement of the actual boundaries between coterminous proprietors of water lots, to whom a grant of the land under water in front of such lots is sub- ’ seqiienlly made, is a question of much difiiculty; and a mode of division,- which •under some circumstances would be perfectly fair. and. equitable, would under others be directly the reverse.:. ; . • . ,

      In this point of view, the practical location, by the proprietors themselves, of their respective boundaries, is entitled to great weight;, and where a mode of division has been generally adopted, no single individual of them ought to be allowed causelessly to disturb it.
    Therefore, where the proprietors generally have settled their boundaries so as to make them conform to the direction of the streets of a city, and have filed a map of their lots, with the boundaries conforming to the streets, in the clerk’s office, no one of such proprietors will afterwards be permitted to insist upon a different mode of adjusting the boundary between him and his co-proprietors.
    (Before Duer and Mason, J. J.)
    July 8, 9, 12;
    Nov. 23, 1850.
    This suit was originally commenced in tbe court of chancery, and was transferred to this court from the supreme court, pursuant to the act of 1849.
    The bill was filed to settle the right of boundary between the complainants, owners of the land at the northwest corner of Columbia and Harrison streets, in the city of Brooklyn, and the defendant, owner of the land at the southwest corner of the same streets. The centre of Harrison, formerly Butler-street, was the division line between the predecessors, in title, of the parties. Harrison-street runs from east to west very nearly, and intersects Oolumbia-street at right angles. The high-water line of the shore of the East river, where Harrison-street intersects it, is east of Columbia-street. The shore at this point is in a deep cove of the river, and the high-wat.er line, as well as the shore, stretches diagonally towards the southwest. A line running into the river at right angles from the line of the shore at its intersection with the centre of Butler-street, would stretch northwardly over the lands of the complainants. The controversy was as to the lands to be gained from the river, on each side of Harrison-street. The complainants insisted that a continuation of the centre of Harrison-street was the true boundary; the defendant, that the line must run at right angles to the line of the shore, or so as to bisect the river shore or the angle of the shore at high-water mark.
    Both parties claimed title under deeds in 1833, from Sarah Cornell, made before any right was obtained from the state to fill up the river at this place, namely: The complainánts claimed, under a deed from Sarah Cornell to Jeremiah H. Taylor, dated April 3d, 1833, of the upland, bounded west by the river, and running southeast along Butler-street. And under a conveyance by Taylor to O’Donnell, dated January 6th, 1843, and under a conveyance by O’Donnell of a moiety to Clark, dated Feb. 17th, 1845. The defendant Kelsey claimed, under a deed from Sarah Cornell to Anson Blake and himself, in behalf of themselves and others, dated November 21st, 1833. In May, 1836, an act of the legislature authorized the owners of these and the adjoining lands on this shore to fill up and dock out in front of their lands to a designated exterior line; (Laws of 1836, p. 739;) and the extent of depth into the river, to which they might dock out, was increased by an act of February, 1841. (Laws of 1841, p. 253.) Under these acts the lands are to be made, the boundary betwéen which is in question. In April, 1835, an act was passed creating a commission to lay out streets in the city of Brooklyn, (Laws of 1835, p. 136,) but it did not appear at what time this duty was performed, or that any streets-were laid out under this commission prior to the passage of the act of May 25th, 1836. Butler-street was known as early ás the deeds from Sarah Cornell, in 1833.
    In January, 1838, after the commissioner’s map had been completed, Kelsey & Blake had a survey made, laying out their lands into lots, for the purpose of partition among themselves. November 1st, 1838, the lots thus laid out were conveyed, in severalty, to the various associates in the purchase of Kelsey & Blake. The conveyance to Kelsey conveyed to him the lots which will lie on the south side of Butler-street, at the place in question. The lots on the southeast corner of Columbia and Butler streets were conveyed to one Johnson, and by Johnson to O’Donnell, in January, 1843. Other lots were conveyed under this partition, south of the lots of Kelsey, which were also purchased by O’Donnell. Johnson, one of the grantees under the same title with the complainants, built a store in 1843, on 'land made in the river, which would have been touched by the boundary as claimed by Kelsey. But this boundary was then known to be unsettléd, and in dispute in 1843. No question was made as to the title of Kelsey to the land to be embraced in the disputed boundary; but by the filing of the bill against him, it was admitted that he was to be taken to be the coterminous proprietor, whose boundary was in question, and who was entitled to the land gained from the river, if the complainants' were not, and a decree against whom would settle the boundary.
    In April, 1847, after the suit was at issue, an order was made by the vice-chancellor, by the consent of the parties, appointing a commissioner, in these words:
    “At a court of chancery held for the state of New York, at the city of New York, on the 29th day of April, in the year of our Lord one thousand eight hundred and forty-seven.
    “ Present — Lewis H. Sandford, vice-chancellor.
    “ Jeremiah O’Dbnnell and Gerardus Clark v. Charles Kelsey.
    “ This cause coming on to be heard upon bill and answer, and a replication filed thereto,, and it appearing that there is great uncertainty in the claims of the respective parties hereto as to the rights of the parties complainant and defendant in and to the water-right and soil under water in front of the several lots and parcels of land owned by them as set out in the pleadings ; thereupon on motion of M. Hoffman, of counsel for complainants, and by consent of Mr. Mann, for defendant, it is ordered and decreed, and this court doth order and decree that William T. McOoun be and he is hereby appointed sole commissioner to ascertain, set out and distinguish the boundary line under the waters of the Cove or East River between the parties in this suit and their water front respectively, and to set out the same by proper metes and bounds; and for that purpose both sides are to produce before such commissioner all deeds, papers and writings, plans and surveys in their custody or power relating thereto; and such commissioner shall be at liberty to examine witnesses on oath touching the matters in question, on notice to the parties by their solicitors, and to make or cause to be made all necessary maps or surveys as he shall deem proper. And such commissioner is to report to this court with all convenient speed, and this- court doth reserve the consideration of all further directions and of the costs of this suit until after the filing of such report, and either party is to be at liberty to take exceptions to such report as he may be advised.”
    In July, 1847, the commissioner made his report, by which he certified that the central line of Harrison-street continued, was the true boundary line of the lands of the complainants, and the contiguous- lands of the defendant under the water of the East River at the place in question, and the commissioner reported that he set out and distinguished the boundary line between the parties accordingly.
    ' The defendant excepted to the commissioner's report, and the same having been confirmed, moved for a re-hearing.

      D. Lord, for the defendant.

      Geo. Wood and Murray Hoffman, for the complainants.
   By the Court.

Mason, J.

The controversy in this suit has arisen under the act of the legislature passed May 25th, 1836, (Laws 1836, ch. 484, p. 739,) which authorized the persons therein named, their heirs and assessors, to erect wharves, docks, &c., in front of their lands in the city of Brooklyn,.not, however, beyond a permanent lin¿ established by the act. And the question presented for our decision -is, in what direction the boundary line between the plaintiffs on the one side, and the defendant on the other, is to be drawn from the shore to the exterior or permanent line. If the line of the shore, at high-water mark, were straight, and the lands contemplated in the act were of the same length with, and parallel -to, the permanent line, it -would 'be a very simple matter'; each owner would draw aline from the extreme ends of his upland, and at right angles to the same, to the penmanent line,- and the intermediate space- -would clearly be the portion in front of his land to which he would be entitled. But as the shore is-crooked, and has -numerous projections and indentations, while the exterior or permanent line is straight, the settlement of the boundaries of the yvater lots,'and the designation of the- front, on the exterior line belonging to each, are attended with.noÉ little difficulty. ' The principle; however, which should govern is very apparent, and that is, to draw the lines in such a manner as to give to each riparian proprietor a water front proportioned in extent to his shore line. ■ And the' rule adopted by the supreme court of Massachussets, in Deerfield v. Arms, (17 Pick. 45,) is at once simple and just. It is as follows ; l.5 “ To measure the whole extent of the bank or line of the river, (or such part as is opposite to the newly formed line,) and compute how many rods, yards, or feet, each riparian proprietor owns on the river line.” In applying this rule, however, the general line ought to be taken, and not the actual length of the line, if it happens-to be elongated by deep indentations or sharp projections; but the actual line should be reduced, by an. equitable and judicious estimate, to the general available line of the land upon the river. 2. “ Next, supposing the former line, for instance, .to amount to 200 rods, to divide the newly formed, bank or line into 200 equal parts, and appropriate to each proprietor as many portions of this newly formed bank as he owned rods on the old. Then, to complete the division, lines are to be drawn from the points at which; the proprietors respectively bounded on the old, to-the points thus determined as the points of division on the newly formed shore. The division lines thus drawn, it is obvious, will be either parallel or divergent or convergent, as the new shore line of the river equals or exceeds or falls short of the old.” In other words, the number of feet or. rods on the newly formed line .to which each proprietor will be entitled, will bear the same proportion to the number of feet he owns on the old.line, that the whole-length of the new linehears to the whole length of the old.

The case of Deerfield v. Arms was one of land newly formed by alluvial deposits, on the margin and bed of Deerfield- river. But the .principle, is .capable of application to a-case like the one before us. Thus, if we assume the whole length of the shore line, opposite to the exterior or permanent line created by the legislature, to be, as indicated by Exhibit No. 14,13,650 feet, and the whole length of the permanent line to be 11,645 feet, and the length of the shore line belonging to the plaintiffs, from its northern extremity to the middle of Harrison-street, to be 133 feet, then 13,650 : 11,645 :: 133:113', or the number of feet on the permanent line to which the plaintiffs would, on these data, be entitled.

This calculation would not give to the plaintiffs the length on the permanent line claimed in their bill; but, as in the given length of the shore line all the indentations and projections are included, it comprises a greater number of feet than it ought, according to the rule laid down by the court in Deerfield v. Arms. And were this shore line reduced to the general line or course of the shore, rejecting the indentations and projections, the result of a calculation on that basis would not vary much from the number of feet actually claimed by the plaintiffs.

The rule laid down in Deerfield v. Arms, however,* cannot be applied in this suit, because we are not called upon to settle boundaries between the proprietors on the whole line, but only the boundary between two coterminous proprietors, and the course and direction of their boundary cannot be determined by the rule there adopted, without disturbing boundary lines already settled, unless they have all been fixed on the same principle, (as to which no evidence has been given in this cause.) Besides, we have not sufficient facts before us to enable us to say, whether, on the principles of that case, , the boundary sought to be settled should be drawn from the termini of the plaintiffs’ shore line, at right angles to the shore, or how otherwise.

Another mode was adopted by the supreme court of Maine, in Emerson v. Taylor. (9 Greenleaf, 44.) That was a case of settling the boundaries among coterminous proprietors, of the lands between high and low-water mark. The rule there laid down was as follows: ,

Draw a base line from the two corners of each lot where they strike the shore, and from those two corners extend parallel lines to low-water mark at right angles to the base line; if the line of the shore be straight, there will be no interference in running the parallel lines. If the flats (or lands between high and low-water mark) lie in a cove of a regular or irregular curvature, there will be an interference in running such lines, and the loss occasioned by it must be equally borne, or gain enjoyed equally by the contiguous owners. The lines drawn according to this are, we apprehend, the lines described by the defendant, evinced as dividing the angle of indentation, and which, he contended, were the only proper boundary lines between coterminous proprietors in cases of this sort. It is to be observed that, in the case of Emerson v. Taylor, the question was as to the division of the land between high and low-water mark. So that the proprietors, each of them, have very nearly the same quantity of land, and in, the same curved shape, at low-water which they had on the shore. But the division, according to this rule, is not precisely accurate, since some of the division lines converge, and others diverge, though perhaps it would be fair enough in the great majority of such cases. Here, however, the course of the shore is crooked, and the outer line is straight, so that the boundary lines formed by dividing the angle of indentation would, if drawn out to the straight exterior line, have a ■very unequal operation; some of the riparian proprietors would have a greater length on the exterior than they have on the shore, and some would be shut out from it altogether. The effect of this may be clearly seen by a diagram.

Take, for example, diagram No. 2, as found in Emerson v. Taylor, [see , following page,] and draw, at some distance beyond low-water mark, a straight line, like the exterior line in the present case, and then extfend the lines which divide the angle of indentation to this exterior line, and it leads to inextricable confusion. Clearly, then, this rule cannot be a correct one.

There is still another mode, which appears better suited to the present case. The exterior or permanent line, as fixed by the legislature, is a straight line, and runs parallel to the general course of the shore. If, then, a base line be drawn parallel to this exterior line, and lines be drawn from the ends of the land of each proprietor, where it touches the shore, to the exterior line, and at right angles to the base line, the land included between these spaces, and that portion of the exterior line embraced by them, would designate.the portion of each proprietor. And if such line should also be in accordance with the general plan’ of the city, so much the better. ■ Upon this plan, a proprietor on whose land there should happen to be sharp projections and deep indentations, would not have an exterior front in proportion to the whole length of his portion of the shore line; but he and all his co-proprietors would have a front in proportion to the average length of the shore. And such a settlement of the boundaries would be, in an eminent degree,’ fair and liberal.

The question then recursWhat rule is to be adopted in the settlement of the boundary line between these parties ? or is that settlement to be governed in this case by any abstract rule ?

We agree entirely with the counsel for the defendant, that the grant by the legislature was not a grant to all of the shore proprietors jointly, but to each of them in severalty of the land under water in front of their own shore. But we cannot admit that the boundary between coterminous owners is so fixed by law, in this case, that the court is compelled to declare it as to each individual proprietor without reference to any other proprietor. On the contrary, it appears to us, that in order to determine where the law would fix the boundaries between any two coterminous proprietors, we must take into consideration the whole of the old shore line and the whole of the new line, and that the boundaries are to be so adjusted as to give to each his due proportion of water front. But We cannot so adjust the boundaries in the present case, because all the parties are not before us, and perhaps we ought not to attempt it if they were, because the proprietors have themselves adjusted their boundary lines for almost the whole distance. But as the case is now presented, it would be manifestly improper for us to disregard these adjustments, and to adopt a boundary between the parties to this suit which would disturb these adjustments, if their rights can be protected without it. If the other proprietors have adjusted their boundaries so as to suit their own interest without regard to the rights of the defendant and his associates, and have shut them out from their due proportion of land on the permanent line, such settlement and location cannot stand, and would be set aside in favor of the defendant on a proper bill or complaint to which all such proprietors would be parties. But if the defendant and his associates have the full quantity of front to which they are entitled, they cannot on the other hand be allowed wantonly to disturb those settlements, .for the sake of establishing a boundary based upon some abstract rule.

It must be borne in mind that the claim set up by'the defendant is not on his individual account, but on behalf of all his associates in the purchase from the heirs of Cornell. He has not, individually, any claim as a riparian proprietor, and the whole land purchased by him and his associates must be considered, for the purposes of this question, as forming one property. Now it is in evidence in this case that the owners of the land south of that which belonged to the defendant and his associates, seven in number, agreed to take on the exterior or permanent line according to the number of feet which they owned respectively, along the original high-water mark, in doing which they acted on the principle .laid down in D.eerfidd v. Arms;, and that the deeds which they executed were drawn so as to conform to this arrangement. It is also in evidence that Messrs. "Wood and Havemeyer and Johnson, and with one, exception all the other owners on the north of the defendant’s purchase, have settled their boundaries in like manner, so as to conform to the streets. It further appears that the defendant and his associates caused their property, including .the water lots up to the permanent line, to be surveyed and laid out into lots .on a map, which they filed in the clerk’s office, and on such map ran their northern boundary line through the centre of Harrison-street to the exterior line. And it is moreover worthy of remark, that they distinctly note on the map itself, with regard to. the southern boundary of their water lots, that that line was not established below high-water mark, but record no such observation with respect to the northern boundary; .thus leaving.it to be inferred, by every one who saw.the jnap, that as. far as they were concerned they considered the northern boundary as fixed.. This map bears date in 1838, and since that time, and as late as 1846, the defendant Kelsey filled up his land to the centre of Harrison-street, but not beyond that line.

. Now it is undoubtedly true, that if tbe law clearly gives to him and bis associates tbe boundary wbicb is claimed for them, they have not done any thing wbicb estops them from claiming it. We entirely assent to tbe doctrine advanced by tbe late chancellor in Adams v. Rockwell, (16 Wend. 302,) that where there can be no real doubt as to bow tbe premises should be located according to certain and known boundaries described in tbe deed, to establish a practical location different therefrom wbicb shall deprive tbe party of bis legal rights, there must be either a location wbicb has been acquiesced in for a sufficient length of time to bar a right of entry under the statute of limitations, or tbe erroneous line must have been agreed on between tbe parties claiming tbe land on both sides, or the party whose right is to be thus barred must have silently looked on and seen tbe other party subjecting himself to expenses wbicb be would not have done if the line bad not been so located. And we are also ready to admit that this doctrine would be applicable to tbe present case, if there' were one invariable mode of drawing tbe line between coterminous proprietors of water lots, rendering, upon a grant of tbe land under water in front of their upland, tbe boundaries between them as fixed and certain as if they bad been given by metes and distances in tbe grant itself. But such is not tbe fact. Tbe settlement of tbe actual boundary between coterminous proprietors in such cases is, as we have seen, a question of much difficulty ; and a mode of division, wbicb under some circumstances would be perfectly fair and equitable, would, under other circumstances, be directly tbe reverse. In this point of view, the practical location by tbe proprietors themselves of their respective boundaries is entitled to great weight, for it cannot be supposed that they will generally agree upon a principle of division wbicb would be unfair or unjust to any of them; and a mode of division generally adopted, no single individual of them ought to be allowed causelessly to distrust. Now here the proprietors generally have settled their boundaries so as to make them conform to tbe directions of tbe streets — a mode wbicb manifestly has in this present instance very great advantages over - any other. The defendant, however, insists on a different mode of adjusting the boundary between him-and the plaintiffs — one which is entirely regardless of the lines of the streets, and which would produce great inconvenience and confusion. And what reason is adduced for claiming this new line ? It was not pretended that he and his associates had not received the whole water front to which they are justly entitled, nor has any evidence been given on that head. But the sole ground on which their claim to disturb even their own location is founded is, that by the established principles of law the boundary line between coterminous proprietors on a curved shore should equally divide the angle of indentation. We do not so understand it. On the contrary, we think we have shown that such a rule is incapable of application, where the shore is curved and the outer line is straight, as in the case before us. We apprehend the law gives no fixed and certain mode of drawing the boundary line, but only lays down a general principle which shall govern in such cases, which is, that each riparian proprietor shall receive his ratable share of front on the outer or water line, and that the boundary lines between coterminous proprietors are to be drawn at right angles, or divergent or convergent to the shore, according to circumstances. We are bound to presume, in the absence of all proof to the contrary, that the defendant and his associates took their full share of front when they made their map and bounded themselves by the centre of Harrison-street; and as this is a convenient, and on many accounts a desirable boundary, and the defendants have given no sufficient reason for going beyond it, we think it neither wise nor expedient to alter it. The necessary effect of this would be to throw these plaintiffs further north, break up the adjustment between Wood and Havemeyer and Johnson, and involve all these parties in a new litigation. .The defendant has not made out a case which would justify us in doing this, or in allowing him to go beyond the line, which he and his associates, years ago, fixed as the northern boundary of their water lots.

For these reasons, the report of the commissioner was right, and the exceptions to it are overruled with costs. There must be a decree for tbe plaintiffs, pursuant to tbe prayer of tbeir bill, except as to tbe claim for damages.

       Diagram,—showing the operation of the rule in 9 Greenleaf, Emerson v. Taylor, referred to on the previous page.

      The dotted lines are drawn at right angles to the base lines.
      The lines between the dotted lines are intended to divide the angles formed by the base lines equally, and are the lines of division.
      The line ab is the exterior line.


text:
    Waterbury v. Graham. The Same v. The Same.
    A letter written by the defendant to G., stating that if the owner of a specified house will let it to G. at a rent named, he will become security for G., and directing G. to state the same and to send the papers to the writer for execution, enures to the benefit of the owner on his demising the house to G. on the faith of the letter, at the terms specified; and he can maintain an action upon the promise, on the defendant’s refusing to execute the proper security.
    The letter expresses on its face, a sufficient consideration to sustain the promise within the statute of frauds.
    The fact that the owner, after he has leased the house to G. on the credit of tlie letter, required of the defendant to execute a covenant containing more than the security for the rent, does not discharge the latter from his liability. The defendant’s contract made by the letter is entire. It is not to pay the rent quarterly, as it falls due, but to execute an obligation to that effect.
    Hence one suit and recovery on the contract is a bar to any subsequent suit thereon.

      Held, accordingly, on the trial of the first suit brought, the second suit founded on a subsequent default of the tenant in paying rent having been first tried and a judgment entered therein; and this, although the claim and judgment in the second suit were not for the same rent claimed in the first.
    (Before Duer and Mason, J. J.)
    Nov. 23, 1850.
    On tbe 16tb of January, 1847, Waterbury commenced a suit in tbe supreme court against Grabam, to recover $250, being one quarter’s rent due November 1st, 1846, for tbe bouse No. 258 Broadway, in tbe city of New York, on tbe ground that Waterbury bad let tbe same to James D. Gardner on Graham’s agreement to become security for tbe rent. The declaration contained several counts like those next mentioned, except that they were for tbe rent of a different quarter of tbe year. Tbe defendant pleaded tbe general issue.

      On the 16th of June, 1847, Waterbury commenced another suit against Graham in the same court. The first count of the declaration set forth that Graham, in consideration that the plaintiff would demise to J. D. Gardner the house 258 Broadway for such reasonable time as' Gardner- wanted to hire it, promised that upon such demise being made, he would become security for the payment .of the rent by Gardner to the plaintiff during the term, to the extent of the rent of $1000 per annum, and would execute any necessary contract of security for such payment. That the plaintiff demised the house to Gardner on the faith of the promise, for the term from February 23d, 1846, to May 1st, 1847, at the yearly rent of $1000, payable quarterly, and Gardner entered and was possessed, &c. That notice of the demise was given to the defendant, and a contract of security was presented to him for his signature, which he refused to execute. That Gardner continued in possession till May 1st, 1847, and that $500 for the rent during the preceding six months was still due from him. The second count was on a promise to pay the rent, and a like breach. A third count was similar to the first. The fourth and fifth counts were for use and occupation by the defendant. The defendant pleaded the general issue. The second suit was tried first, in September, 1847, before Edwards, J. On the trial, the plaintiff proved, that on the faith of the following letter, written by the defendant, and presented to him by Gardner and his wife soon after its date, he demised to Gardner, by a lease under seal, executed February 18th, 1846, the premises, for the term and at the rent described in the declaration. The letter was in these words:
    “Catskill, February 6, 1846.

      “ Dear Sister, — Your letter, dated the 4th, was this morning received. You say you can have a house, corner of Broadway and Warren streets, for one thousand dollars a year, &c., if you can get security. I think you will do well to take it, and I assure you I will become security with pleasure, or do any thing I can for you, when there is a prospect of your getting along with it.

      “You can therefore say, that I will become security for Mr. Gardner, and can either send up the papers for me to sign, or he can retain this letter, until I go to New York, as I shall probably, as soon as the river opens, as security for the house.
    “ Yours affectionately,
    ■ “JAMES H. A. GRAHAM.”
    (Indorsed,)
    “Mr. Jas.'D. Gardner,
    “ No. 9 State-street,
    “New York.”
    (Postmark,)
    “ Catskill, N. Y., Eeb. 6.”
    Gardner went into possession February 23d, 1846, and occupied till the end of the lease. It was proved that in April, 1846, the plaintiff requested the defendant to execute a covenant indorsed on the lease, to the effect that he would pay the rent on Gardner’s default, and all damages that might arise from non-performance of Gardner’s covenants in the lease. The latter extended to various matters besides the rent, such as replacing furniture and the like. The defendant refused to execute the covenant. In November, 1846, the request was renewed, and ‘on defendant’s refusing, the plaintiff asked him if he would sign it provided the clause as to the furniture, &c., were stricken out. The defendant replied that he would not. He admitted he wrote the letter in reference to the house 258 Broadway. It was proved this house was one door below Warren-street, but the entrance to it was from Warren-street, across the lot at the corner.
    The jury found a verdict for thé plaintiff in the second suit for $257.80. Various exceptions were taken by the defendant at the trial, and he moved for a new trial on a case. Some other matters were litigated before the jury, which are unimportant here.
    The suit first commenced was brought to trial before H. Gray, J., in December, 1847. The evidence for the plaintiff was like that on the trial of the second suit, and the record of the judgment in that suit was produced and read in evidence by the plaintiff. After the plaintiff rested, the defendant’s counsel moved for a nonsuit, for the reason, among others, that the contract of the defendant was entire, and the plaintiff having recov. ered for a breach of it, was not entitled to maintain this action. The judge nonsuited the plaintiff, who made a bill of exceptions and moved for a new trial.
    Both causes having been transferred to this court, were argued at the same time.
    A B. Blunt, for the'plaintiff.

      S. Sherwood, for the defendant.
   By the Court.

Mason, J.

I. As to the defendant’s motion for a new trial, it is unnecessary to decide whether the defendant’s letter of the 6th February, 1816, had been sufficiently proved, when the motion for a nonsuit was made, as all doubt on that subject was afterwards removed by the testimony of Mrs. Gardner.

The object of the defendant in writing the letter was to enable Mr. Gardner to hire the house on the faith of his promise to become security for tbe rent. Although, therefore, it was not directed to the plaintiff, but to Mrs. Gardner, yet its object could not be accomplished, unless it was shown to him. She was justified, then, in showing the letter to the plaintiff, and when in reliance upon it be let tbe bouse, the promise contained in it enured to his benefit.

There was.also a sufficient consideration expressed on its face. After adverting in it to what Mrs. Gardner had previously written, to wit, that she could have the house for $1000 a year, if she could get security, the defendant says, “You can, therefore, say that I will become security for Mr. Gardner,” &c. It was a promise to become security, on condition that the plaintiff would let the house for that rent. The letting was in terms the consideration for the promise, which became binding on the defendant as soon as the plaintiff, in reliance upon it, let the house.

Whether the plaintiff did in fact let the house on the faith of the defendant’s promise, and whether the house answered the description in the letter, were points on which there was sufficient evidence to go to the jury.

The principal question in the cause is, whether the defendant was subsequently discharged from his promise by the plaintiff insisting upon the defendant’s guaranteeing him against damage to the furniture as well as for the rent. The defendant clearly was not bound to enter into any such covenant with regard to the furniture. He had agreed to be responsible for the rent to the extent of $1000 per year, and nothing more. The plaintiff had acted on that agreement, and on the faith of it, as the jury ha've found, delivered possession of the premises to Gardner, and we are not aware of any principle of law by which the defendant could be absolved from an agreement thus made by him, and acted upon by the plaintiff, merely because the plaintiff wished him to add to his responsibility. The contract which he actually made was not, and in our judgment, could not be annulled or discharged, solely on the ground that the plaintiff asked for something more. If the defendant’s letter had not’ been acted upon by the plaintiff, and he had insisted on the indemnity respecting the furniture previous to delivering possession of the house, the defendant probably would not have been bound. The plaintiff’s conduct, in that case, might have been evidence that the minds of the parties had not met as to the terms of the security, and that there was no valid agreement between them. Or if it had appeared that the plaintiff had not agreed to strike out the clause respecting the furniture until after Gardner had made default in payment of the rent, his delay and neglect might have been evidence to show, that on the defendant’s refusal to sign the paper as presented, the plaintiff had concluded to waive his security for the rent, and the defendant would in such case have been discharged. But the facts are otherwise. The plaintiff let the house on the faith of the defendant’s engagement to become security for the rent, and he agreed to strike out the objectionable clause, before any default had occurred on the part of Gardner. We think that the defendant, under these circumstances, was bound to sign the covenant of suretyship if drawn in conformity with the promise contained in the letter, and that upon his refusal to sign, when the plaintiff offered to make it so conform, he was liable in this action for all damages which the plaintiff had sustained by reason of such refusal.

The jury have found that the house answered the description contained in the defendant’s letter, and that it was let to Gardner and possession delivered, on the faith of that letter, •and we see no reason to disturb the finding.

The defendant’s motion for a new trial must therefore be denied.

II. Next, as to the plaintiff’s bill of exceptions, in the suit first commenced, and which was the last tried.

We have just decided’in the other suit between these parties, brought on the same letter which is the foundation of the present suit, that the offer contained in the letter to become security for the rent, having been accepted and acted upon by the plaintiff, was obligatory on the defendant, and that the plaintiff was entitled to recover all such damages as he had sustained by reason of the defendant’s refusal to comply with his agreement. The contract was in its nature entire. It was not a contract to pay the rent, as from time to time it should become due, but to execute an obligation to that effect,’ and the suit just decided was maintainable only on the ground of the defendant’s refusal to execute such an obligation, and not on the ground of non-payment of the rent. The two causes of action are entirely distinct, and they were so treated by the pleader in the former suit as well as in this, the declaration in both containing counts suited to each aspect of the case. The contract being entire, the remedy for its breach is also entire, and the recovery therefore in the former suit, is a bar to a recovery in this. Eor this reason, without entering into a discussion of the other grounds taken by the judge, we think the nonsuit was properly granted, and the motion to set it aside must therefore be denied.


author: Oakley, Ch. J.

text:
    Smith v. The Mayor, Aldermen, and Commonalty of the City of New York.
    The amended charter of the city of New York, (1849,) devolves upon the street department of the city government, the cognizance of opening, regulating, and paving the streets of the city, and provides that the several executive departments and the officers thereof shall be subject to the legislative directions and regulations of the common council. Also that all contracts to be made or let by the common council for work to be done, shall be made by the appropriate heads of departments, under such regulations as shall be established by the ordinances of the common council. By the ordinances subsequently enacted under this charter, the street-commissioner, as the head of the street department, shall have power to make contracts for the regulating, paving, and repairing streets under the ordinances of the common council, and the power to advertise for estimates and contracts for such work. All contracts are to be authorized'by the common council, and no contract shall be made unless proposals therefor have been advertised and estimates received and decided upon by them; and the proposals must state the amount in which security will be required for the performance of the contract, and the estimate must contain the written consent of two householders or freeholders to become sureties. Under an ordinance directing the work, the street-commissioner advertised proposals for regulating and paving a street,- but neglected to specify the amount in which security would be required. Held, that such omission, in violation of the ordinance, vitiated the transaction, and the corporation was not bound to execute a contract to the lowest bidder upon such proposals, although another ordinance directed the street-commissioner in such cases to award the contract to the lowest bidder, and he had declared the plaintiff to be such bidder.
    The ordinances under the amended charter also provide, “ that no contract for a sum exceeding five hundred dollars 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. Held, that the terms “ signing and executing” referred not to the formal execution of the contract only, but to the contract being made or concluded; and that the effect of the section was to reserve to the common council the liberty to make the appropriation or qot, as the interests of the city might require.
    Under the advertised proposal for estimates made by the street-commissioner, the plaintiff submitted an estimate for the work, which the commissioner declared to be the lowest bid offered, but the common council refusing to make the necessary appropriation, no contract was executed to the plaintiff by the commissioner. In an action to recover damages for the refusal of the commis‘siqner to execute the contract, and of the common council to make the necessary appropriations for the same; held, that it was .competent, after the submission of proposals and estimates, for the common council to abandon the proposed work, and to decline entering into a contract for its execution.
    The street-commissioner of the city of New-York is an independent public officer, acting under certain laws, and having no power except as he acts in conformity with them.
    If an agent of the corporation in any sense, he is not an agent having power to bind his principal generally, but is one acting under special instructions, from which he cannot depart, and of which those dealing with him are bound to take notice.
    (Before Oaklet, Ch. J., and Sandford and Paine, J. J.)
    Nov. 14;
    Dec. 14, 1850.
    Motion to set aside the report of a referee.
    Tbe action was brought against tbe corporation of the city of New York, to recover damages for a refusal, on the part of tbe street-commissioner, to execute a contract alleged to have been made with tbe plaintiff, for tbe regulating. and paving of Twenty-second-street in that city, and also for the refusal of tbe common council to make the necessary appropriations therefor. Tbe cause was referred, by consent of the parties, to tbe Hon. Samuel Jones, as sole referee, to hear and decide the same, and came on for trial before him on tbe 15th day of January, 1850. The facts of the case, as they appear in the pleadings and evidence, are sufficiently set forth in tbe opinion of tbe court. Tbe referee reported in favor of the plaintiff, for tbe sum of $6472.41; and the defendants, upon a case, appealed to the general term, and moved to set aside tbe report.

      3. 3. Davies, for the defendants.

      J. T. Brody, for the plaintiff.
   By the Court.

Oakley, Ch. J.

This case comes before us upon an appeal from the judgment entered at special term, upon the report of the referee, to whom the same was referred. The action was instituted by the respondent against the appellants, to recover- damages for a refusal of the street-commissioner to execute a contract with the respondent, to which he claims to be entitled; and also for a refusal by tbe appellants, to make the necessary appropriations therefor. It seems that an ordinance was adopted by the common council, on the 15th of January, 1819, for the regulating and paving of Twenty-second-street, between .the Sixth and Seventh avenues. The street-commissioner, acting under this ordinance,, advertised for proposals and estimates for the performance of the work. Proposals and estimates were put in by the respondent,’and by, several others. The street-commissioner, upon opening the proposals, rejected all of them, with the exception of the respondent’s, on the ground of their informality. The proposals of the respondent, therefore, stood alone; and although higher than some of those which were rejected, he claims that the contract should have been awarded to him as the lowest bidder, and that he is entitled to recover from the appellants the profits which he would have been enabled to realize from a performance of the contract. The referee accorded to. him damages to the amount of $6172.11. Accompanying his report, he has given an opinion, reviewing the grounds of the controversy, and giving at length the reasons of the conclusion to which he arrived.

It is necessary to an understanding of the several points which were raised in the course of the argument, to refer to several sections of the statute amending the charter of the city. In consequence of numerous abuses which were supposed to have arisen under the former charter, an act was passed by the legislature, on the 2d of April, 1819, making various alterations in it. The first section of this act provides that the legislative power of the corporation shall be vested in the board of aldermen and assistants, and by the ninth section, the executive power is given exclusively to the mayor and heads of departments. The twelfth section provides that there shall be an executive department, under the denomination of the street department, which shall have cognizance, among other things, of opening, regulating, and paving streets. Section twenty-one provides that the several executive departments, and the officers thereof, shall be subject to the legislative regulations and directions of the common council. By section twenty-third, it is provided, that all contracts to be made or let by the common council for work to be done, shall be made by the appropriate heads of department, under such regulations as shall be established by the ordinances of the common council. These are all the provisions of the act amendatory of the charter, which it is necessary to consider in this case. Under this law, the corporation established a body of ordinances, to some of which it is necessary for us to refer.

The one hundred and fifty-eighth section of the ordinances provides, that the street-commissioner shall have power to make contracts for the regulating, paving, and repairing of streets, under ordinances of the common council; and the one hundred and sixty-second section gives him the power to advertise for estimates and contracts for such work. The last title in this book of ordinances prescribes the regulations under which this power shall be exercised. It is there provided, that all work to be done for the corporation shall be performed by contract, and that all contracts must be authorized by the common council; and when so authorized, shall be made by the head of the department under whose direction the work is to be performed. The four hundred and ninety-fourth section provides that “ no such 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 that no contract for a sum exceeding five hundred dollars 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.”

This section is very material in the consideration of this case, and upon it one of the principal points upon the part of the appellants turns.

Section four hundred and ninety-six prescribes the regulations under which the proposals shall be offered; among other requisites, the proposal must state the amount in which security will be required for the performance of the contract. Section four hundred and ninety-nine provides, that each estimate shall be accompanied by tbe consent, in writing, of two householders or freeholders, to become sureties. The title next provides for the opening,of the proposals by the street-commissioner; and then follows that part of the section on which the respondent relies, i. e., that the street-commissioner shall reject all estimates which are not furnished in conformity with the requirements of the ordinance ; and shall thereupon award the contract to the lowest bidder.

The facts in this case, some of which have been alluded to, are briefly, that the street-commissioner, acting under an ordinance of the common council directing the work to be done, advertised for proposals and estimates for the regulating and paving of a portion of Twenty-second-street. The respondent put in his estimates and proposals, which were found regular. The others which were offered, being rejected for their irregularity, that of the respondent’s stood alone. A clerk in the office of the street-commissioner, called the contract clerk, proceeded to draw up the contract in the usual manner, in conformity with the proposals of the respondent. The respondent offered to execute it; but by the directions of the street-commissioner, it was not executed.

There appears to be some uncertainty whether the contract, as prepared, was laid before the common council. It is admitted that the estimates and proposals were, and we assume that the contract was in like manner submitted. The common council refused to make the necessary appropriations, and the contract was not executed; and the work was permitted to be done by others; but whether under a contract with any other person, does not appear.

The action of the respondent is founded upon this state of things; and it is contended by him, that when he put in his proposals and estimates, and all the others were rejected, he was entitled to the contract; and that there was no power in the common council to withhold it from him; and that they having refused to let him perform the work, he has a right to recover, as damages, the profits which he would have made, ■ had the oontract been awarded to him.

There are two grounds of defence to his action, either of which, if held to be valid, is a bar to the respondent’s right of recovery.

1st. That the street-commissioner did not act in compliance with the ordinances of the common council, in advertising for proposals and estimates, by reason of his neglecting to name the amount which would be required as security for the performance of the contract.

2d. That it was competent for the common council, when the proposals and estimates were submitted to them, to decline making the necessary appropriations for carrying the proposed contracts into execution.

We think that both of these grounds of defence are valid.

As to the first, the omission on the part of the street-commissioner to state the amount in which security would be required for the performance of the contract, was a violation on his part, of the corporation ordinances. It is clear, we think, that he had no power to dispense with any of the regulations provided by the legislative power of the common council, or to bind the city by a contract not made in accordance with them. We cannot regard the street-commissioner as acting in the capaoity of an agent of the corporation. He is an independent public officer, acting under certain laws, and having no power, except as he acts in conformity with them.

We think that, by his omission to state the amount it would be necessary for the contractor to give as security, he neglected his duty, and could not bind the city, even if the contract had' been signed. Other and lower proposals were rejected for not being in conformity with the regulations prescribed; and we cannot see on what ground the street-commissioner could retain that of the respondent, which was also defective. The certificate of the mayor, which is required to be given as to the sufficiency of the sureties, and which was given in this case, and offered by the respondent to the street-commissioner, relates not to the amount which the street-commissioner had determined to be necessary for the security of the city, for none had been fixed by him, but to a specific sum named in the certificate, which might or might not be sufficient for that purpose.

It is said that the street-commissioner, acting as the agent of the corporation, dispensed with the regulation alluded to, and that the respondent was thereby released from a strict compliance with its terms. This view of the matter is not sound. If he could disregard the ordinance as to the amount of the security to be required, he might as rightfully dispense with security altogether. The fallacy of the respondent’s argument consists in considering the street-commissioner as an agent having power to bind his principal generally. Whereas, if an agent in any sense, he is one acting under special instructions; from which he could not depart, and of which the plaintiff was bound to take notice.

Apart from any further consideration of this point, the more important question is, whether under a true construction of the statute and the ordinances, where proposals are regularly made, and the street-commissioner has decided that a person is entitled to the contract, the common council have the power to say that they will not go on with the work and carry out the contract. It is very clear they would have no power to take the contract from the person to whom it had been awarded, and give it, to another. But the question is, whether they have a right to say they will not go on with the work at all, or at the expense involved in the contract proposed. It is provided by one of the sections of the book of ordinances before referred to, that no contract for a greater amount than five hundred dollars (and the contract in this case is of that character) shall be signed or executed (that is, as we understand it, no contract shall be formally made) until such contract, and all the estimates relating thereto, shall be laid before the common council and an appropriation made therefor. We think there can be no reasonable doubt of the effect of this section. It is to reserve to the common council the liberty to make the appropriation or not, as the interests of the city may require. An improvement may be often ordered to be made, without any accurate information as to the extent of the expenditure involved in it. When that becomes known by a proposed contract, it may well be that the charge, either upon the city or upon individuals whose property may, be liable to be assessed to carry it out, will be so onerous as to render it expedient to abandon the work. It is essential that the city government should have the right to do so, under such circumstances.

It is suggested that there is a distinction in this case between the making of a contract and the signing and executing of it, and that the signing and executing of the contract refers to its formal execution only. We cannot think so, but must hold that where the ordinance declares that no contract shall be signed and'executed until an appropriation is made, it means (according to its plain letter) that no such contract shall be made or concluded. And this construction is, we think, corroborated by the nineteenth section of the act of the legislature amending the city charter, .before referred to. By that section it is provided 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. If the street-commissioner can, without an appropriation, bind the common council by a contract necessarily involving a large expenditure, it would seem that the spirit, at least, of this provision would be violated.

On the whole, we are of opinion that the judgment entered on the report of the referee be reversed, and the rule of reference be discharged.