text:
    THE PEOPLE ex rel. JOHH A. STEMMLER and JOHH A. STEMMLER, Appellants and Respondents, v. JOSEPH McGUIRE, Respondent and Appellant.

      Motion f ‘or now trial on newly discovered evidence — affidavits used on—what must contain —how construed— Canvassers’ certificate of election—may be impeached by orad evidence.

    The affidavits used on a motion for a new trial, on the ground of newly discovered evidence, must show the existence of other evidence, not available by the-use of reasonable diligence on the trial already had, which, if then given, would probably have produced a more favorable result to the applicant. A failure in either respect will not only justify, but require, a denial of the application.
    Where, on a motion for a new trial, an affidavit was j>roduced, made by a person who had given material evidence in the plaintiff’s favor on the trial, which stated in substance that the witness had committed perjury in testifying as he did; held, that the court properly declined to set aside the verdict on account of it.
    The affidavit of such a person is not entitled to so much weight as to justify the conclusion that the evidence given by him, and which the jury may have-regarded as credible and truthful, was corruptly and willfully false.
    The canvassers’ certificate of election is not conclusive, but may be annulled and overthrown by the oral evidence of witnesses.
    In the examination of witnesses, parties have the right to show whatever may fortify their statements, by indicating the improbability of mistake in making them.
    Appeal by defendant from a judgment in favor of the plaintiff, and from an order denying a motion for a new trial, made upon the minutes of the court; and by plaintiff from an order setting aside a verdict, and directing a new trial on the ground of newly discovered evidence, and from an order denying a stay of proceedings during the pending of the appeal.

      Nelson J. Waterbury and John K. Porter, for the plaintiffs.

      A. J. Vanderpoel and William A. Beach, for the defendant.
   Daniels, J.:

The relator in the action claimed to have been regularly elected, in the year 1869, to the office of justice of the District Court, for the seventh judicial district of the city of Hew York, and that the defendant had unlawfully intruded himself into, and held that office. Upon an issue presenting both points for trial and determination, the plaintiffs recovered a verdict on which judgment was rendered, and from which one of the appeals now before this court was taken. During the pendency of that appeal, and also of the appeal from an order denying a motion for a new trial upon the minutes, a motion was made on behalf of the defendant at the Special Term, for a new trial on the ground of newly discovered evidence, which proved successful, and the verdict was set aside and a new trial ordered. From that order, the plaintiffs in due form appealed.

Upon the argument it was objected that this- order was not appealable. But that is very evidently untenable, because the Code allows appeals to the General Term from orders granting or refusing new trials, in general terms, and without qualification. The fact that they are in some sense discretionary, does not affect this right of review in the General Term, although it would be otherwise in the Court of Appeals. The new trial was applied, for, chiefly, upon three affidavits, besides that made by the defendant to supply the formal requisites of the motion, and which, for that reason, need not be particularly considered, as it seems to have been sufficient for that purpose. By one of the affidavits, a witness who gave material evidence in the plaintiff’s favor, concerning the number of votes polled in one of the contested election districts, stated in substance that he had committed perjury in testifying as he did, but the court declined to set aside the verdict on the faith of it. In that respect the decision was clearly right, because the affidavit of such a person is not entitled to so much weight as to justify the conclusion that the evidence given by him, and which the jury may have regarded as credible and reliable, was corruptly and willfully false. The conclusion of the jury would rather warrant the presumption that his testimony was truthful, and his affidavit false. His excuse for his alleged perjury, is, that he was promised fifty dollars for committing the crime, and the inference seems to be indicated that he made the affidavit because that had not been paid to him. His evidence was not rendered the subject of very grave suspicion when it was given upon the trial, although it differed in a material respect from that given by him upon a preceding examination. That may have risen from infirmity of recollection. But whether it did or not, it was the appropriate province of the jury to decide. When his affidavit was made, it was quite evident that no latitude of indulgence would prove sufficient to justify the belief that he then was truthful. He may have been so upon the trial, but when his affidavit was made, he certainly was not so. And for that reason it could not be properly accepted as evidence that the statements made by him upon the trial were false. Ho injustice would be done to him, in concluding him by his last statement in a criminal prosecution, which, before this time, ought to have been instituted against him, but his oath is now of too unreliable a character to render it the foundation for disturbing the rights which others may have acquired on the strength of his testimony, when that may have been candidly and honestly given. More especially is that the case, as his evidence was substantially the same as that given by another witness, who, at the time of the occurrences testified to, was similarly employed, and whose truthfulness no reason appears for doubting.

The affidavits upon which the motion was allowed to prevail, were made by Williams and Brown. That of the former was the most explicit and important, and upon the statements made in it, the order is dependent for its support. For while Brown swore that he was present in the polling booth in which the votes, cast at the twenty-seventh election district of the nineteenth ward, were canvassed, and heard the result of the vote proclaimed, he does not state that the proclamation was made either at the close of, or near the time of, the canvass, or by any person who could be presumed to possess knowledge on that subject. And for that reason, what he may have heard said, does not appear to be entitled to the least consideration, as evidence of the fact referred to by him.

The affidavit of Williams is more particular in its statements, but still radically defective. He says that he heard the vote proclaimed by one of the canvassers in the polling booth where it was canvassed. But he does not state that it was at the conclusion of the canvass, or so near the time of it as, in any form, to have been connected with that act. Neither does he state that it was the canvasser, who publicly announced that the vote was sixty-three for Stemmier, ten for Levinger, and two hundred and eleven for McGuire. It is perfectly consistent with his statement, that the canvasser proclaimed one result, and that the public announcement, afterward mentioned, was made by some other person, giving entirely different numbers. It is true, it may, by a very liberal construction, be inferred that the deponent intended to be understood as swearing both the proclamation of the canvasser and the public announcement, to have been one and the same act. But he lias not said so, and such inferences are not to be indulged in for the purpose of setting aside verdicts and judgments. The policy of the law, on the other hand, is to sustain them, unless the injustice of doing so is clearly made to appear. Parties are required to fully prepare their cases for trial, and if they fail to do so, the peace and good order of society require that they shall suffer the consequences of their own want of diligence. They cannot be relieved from an adverse result, unless the case made in support of the application is reasonably certain, credibly sustained, and fairly indicative of a different result upon another hearing ; and that cannot be held to be the case, unless the newly discovered evidence is shown to be properly admissible, and so far reliable as to render it worthy of belief. To render the announcement proper, as evidence, it should have been shown, if that could truthfully have been done, that it was made by the canvasser referred to, and so near the time of the canvass as to have indicated an official statement of the completion of that act. Then it would probably be admissible as part of the res gestee. But that, the affidavit of the proposed witness entirely fails to do. He had a bet upon the number of the votes cast for each of the candidates, and it was not essential for its determination that his information should have been derived in such a form as would render it evidence before a court of justice. What he required was, simply, knowledge of the fact, without looking so far as to ascertain whether its communication involved also the performance of an official duty. No hardship is required of a party, preparing ex Aparte affidavits in support of such an application, to require him to show, to a reasonable degree of certainty, at least, that what he relies upon as newly discovered evidence, would be received upon another trial, in case it should be ordered. That, the affidavits in this case have wholly failed to do. The inference is entirely consistent with the statements made, that the canvasser proclaimed the result after the board had ceased to act in the discharge of its duties, and that some other person publicly announced the vote which has been detailed. And that, certainly, is too loose to justify an order vacating a judgment and verdict, and directing another trial of the action.

Beyond that, the statements of Williams and Brown, even if they should be regarded as relating to what the canvasser said, are substantially discredited by the affidavits produced in opposition to the application. For McNally and Foster swear, that either one or both of the canvassers announced the vote to be precisely as it was given by the witnesses sworn upon the trial; and the truth of their statement is, to some extent, certainly, corroborated by the affidavits of Waterbury and Hamblin, and by the return of the vote given to the police department. It is not probable, therefore, that the evidence of Williams and Brown, even if it had been given upon the trial, would have changed the result. And for that, as well as the reason that it is not probable they could give legal evidence relating to the subject of the controversy, the verdict ought not to have been set aside. The rule upon this subject is quite well settled. And it requires the affidavits, used to support the application, to show the existence of other evidence, not available by the use of reasonable diligence on the trial already had, which, if then given, would probably have produced a more favorable result to the applicant. A failure in either respect will not only justify, but require a denial of the application.

In support of the defendant’s appeal from the order denying the motion, made upon the minutes of the court to set aside the verdict, it is claimed that the canvassers’ certificate should not be overthrown and annulled, simply by the oral evidence of other witnesses. But this position cannot be sustained, because it is in direct conflict with the rule prescribed by the cases of People v. Pease and that of the People v. Thatcher. That such a result might be produced by oral evidence, was held in both those cases. And if it could not be, a degree of impunity would he secured to frauds in elections, which the law never has permitted in any different transactions. Falsehood, deceit and fraud have been held to so far taint and impair the most solemn and formal instruments and records, as to justify the courts in annulling and declaring them void, even when the vice has been solely dependent on oral evidence for proof of its existence. No reason exists for excluding cases of this description from the operation and effect of this rule. It is even more important that those transactions, on which all the powers and functions of good government depend, should be free from fraud, misconduct and corruption, than it is to preserve the purity of the ordinary affairs of life and business. If the franchise is to be fraudulently perverted and defeated, without the abuse being liable to correction by the ordinary means of evidence,' it will be denied that security which constitutes the shield and protection of even trivial rights of property. And that would certainly offer a reward for artifice, trickery and deceit in the management of elections, which would soon result in rendering them the subject of universal contempt. It is difiicult to imagine a device, which would more surely end in an entire disregard of the wishes of the electors, as they might be expressed by the ballot. Iniquity of this nature is entitled to no snch immunity. And it is due to the institutions of the country, that all frauds tending to diminish the efficiency of popular elections, should be discovered and redressed by the same means that are resorted to foi the purpose of rendering them ineffectual in other cases. Neither can any different measure of evidence be required, to establish fraud or official misconduct, in cases concerning proceedings under the election laws, than has been found sufficient in cases involving other rights and interests. This may render official tenures somewhat uncertain, but it will not expose them to any unwarrantable danger, where the title of the officer is really well founded in fact. The real danger will be to fabricated and fraudulent official titles, and they are not so much entitled to support, as to require any new or uncommon rules to be invented for their protection. On the contrary the lasting, as well as the paramount, interests of every society, will be best promoted by extending all reasonable facilities to the discovery and suppression of frauds of this character.

The substantial evidence in the defendant’s favor, was that supplied by the certificate and declaration of the canvassers, while the witnesses, whose evidence was given on behalf of the plaintiffs, showed quite satisfactorily that the vote was so much more favorable to the relator than the canvassers stated it, as in fact to result in his election to the office in contest. This evidence was derived from the poll-clerks, two in each of the contested districts; and even if that given by Fields should be assumed as unreliable, no well founded objection exists against adopting the statements of Hand as the truth, which was sufficient to justify the conclusion of the jury. If these witnesses testified to the truth, then the vote of the relator, in the two election districts concerning which the dispute existed, was sufficient to entitle him to the office, even though the canvassers, by their certificate and declaration, awarded it to the defendant. And whether it was true or not, was a question for the determination of the jury, which the court cannot interfere with by setting aside the verdict.

During the progress of the trial, quite a large number of exceptions were taken, mostly of an unimportant nature, which are relied upon in support of the appeals from both the order denying the motion for a new trial upon the minutes, and from the judgment. The first, in the order in which they have been presented, was taken to the proof of orders issued by the police superintendent. The witness simply proved that the papers shown him, were orders issued previous to the election held in December, 1869. That could do the defendant no harm, even if the orders themselves could not afterward be received as evidence. There certainly could be no objection to the relator proving them. The evidence offered to show actual irregularities in voting, was entirely proper under the complaint, which charged that to be the fact, as a portion of the plaintiffs’ case. Under these allegations, the court could not properly have deprived the plaintiff of an opportunity to make proof of the facts alleged. The .objection now taken, is, that the question was too general. But if it was, that should have been urged against it on the trial. It was there simply objected to, as leading, irrelevant and incompetent.

Upon the redirect examination of one of the poll-clerks, he was shown to have made an affidavit soon after the election, stating the vote given for civil justices in the district where he officiated. And, in that connection, he was asked and allowed to answer, whether there were any other matters then in dispute, relating to that election, except for police and civil justices. His answer was, that he believed there were some aldermen or assistant aldermen, but he was not applied to in regard to them. The object of this examination was simply to show that the witness’ attention had been directed to the facts, concerning which he was examined, near the time when they occurred. And it was proper to allow it for the purpose of showing that they had been specially impressed upon his mind, so as to preclude the probability of his being mistaken. For that reason, his answer was relevant, material and competent. But even if it were not, no possible injury could have resulted from it to tie defendant. In the examination of witnesses, parties have the right to show whatever may fortify their statements, by indicating the improbability of mistake in making them; and the circumstance proven, was one of that description. It showed the extent to which his attention had been directed to the fact in dispute, about the time of its occurrence, and when his recollection must have been entirely unobscured. If the election returns had been in existence, the plaintiffs would have been bound to produce them in the course of the trial. The law required them to be made out so that one of the returns could be filed with the alderman of the district, another with the clerk of the common council, and a third in the bureau of elections in the office of the clerk of the police force. Either one in existence, properly authenticated, would be evidence. But, as it turned out, neither seemed capable of being found, after the trial of the case of Murray v. Coulter. For that reason, and as part of the process of showing that neither could be produced on the trial of this cause, it was very proper to show what had been done toward searching for them for that trial; the effect of the search made; and the final disappearance of the returns. That was substantially what the court allowed, and no doubt can be entertained as to the legality of the course pursued. It was the means by which it was shown that the returns could not be produced in this case, and the evidence given was pertinent to that object. It was not too extended for that purpose, but, even if it had been needlessly so, it was equally apparent, that, in that respect, it was also harmless. For the purpose of directing the attention of the witness to the subject, it was not improper to show that he had been interrogated, concerning the requirement made of him to produce the return upon the preceding trial. His answers show that he understood the purpose of the examination. For he simply stated, as he very properly could, that he remembered being interrogated in regard to two districts, which, he stated, he could not find; that they were not on file in his office. He stated that he could not speak from recollection as to the districts, but if he could not produce them then, he could not on the trial of this case. The great object was, to excuse the plaintiffs from the obligation to introduce the returns as evidence in their case; and all the inquiries made, seemed appropriate to that purpose. The search at the police headquarters was for the same general end, and the court very properly declined to strike out the answer the witness gave, .that the returns were not found.

The poll-clerks were allowed to state the vote given for civil justices from recollection. Their answers were objected to, as secondary, irrelevant, immaterial and incompetent, and because they would contradict the returns made by the canvassers, by the mere recollection of witnesses. The returns themselves could not be found, and if the witnesses could answer as to the vote from recollection, there could not be any well founded objection to their doing so. No law confines the proof of the facts to either the returns or the tallies, and where a witness can give it from recollection, no reason exists for excluding the evidence. Neither witness was asked to do any more than give his actual recollection of the vote, inserted in the returns which could not be found, and therefore were incapable of being produced, and the number of the votes given at the election, as he professed to be able to recollect it. The objection that the answers contradicted other documentary evidence, was not taken upon the trial, and for that reason cannot be considered here.

So much of the canvassers’ return of the twenty-seventh district of the nineteenth ward, was offered in evidence by the plaintiffs, as related to aldermen, assistant aldermen and school trustees, and received under the defendant’s objection that the statement of the canvassers did not present anything requiring explanation, and that it was irrelevant and incompetent, the plaintiffs having already offered the original statement in evidence. Upon its face, this purported to be the district canvassers’ statement and return of votes, including those given for the justices. But that part of it, containing the justice’s votes, had disappeared, and it was shown could not be found. And there could be no substantial objection to the paper being received in proof of that fact. It was relevant for that purpose, and that justified the ruling of the court under which it became a portion of the plaintiffs’ case.

The memorandum made by the witness McLoughlin, was properly excluded, as it finally appeared from his examination, that it contained the statement only, of a man the witness did not know, the poll-clerk or the canvasser, given to a gentleman, of what the vote was. It was simply hearsay, and not admissable in evidence. The objection to it was entirely clear, and could not in its nature be obviated, and for that reason, objecting generally was sufficient.

A police sergeant was examined, concerning a. police blotter before him, and was asked whether he ever made any comparison by those returns at the foot of the page, which the defendant objected to, as irrelevant, immaterial and incompetent. The witness answered, “ I do not think I did on that head.” He was also asked, whether if he answered on the trial of the ease of Murray v. Coulter, that he compared the votes; it is correct. And that, he did not answer. But when the report of certain testimony was handed him, he then seems to have been able to state from recollection what he did do, and stated it. That was, that he went over the hook with two or. three other gentlemen, in relation to the estimate of the different candidates. That he compared these returns with two returns brought by police officers from the polling district, and that the returns from the twenty-seventh district of the nineteenth ward, of the vote for civil justice, agreed as there recorded. He compared the entries, he said, to see if they corresponded with the returns. This evidence was not objected to, and, like much of the other matter objected to which seemed to result in proving nothing specially pertinent to the case, could not be made the foundation of any valid exception, particularly as all such statements were excluded from the consideration of the jury, by the charge given to them by the court.

Upon the re-examination of one witness, he was asked by the plaintiffs’ counsel, whether he was not mistaken when he said that the vote for civil and police justices were on separate ballots. There could be no objection to the correction of the mistake, if one had been made. It was due to the witness, that he should have an opportunity afforded him for setting himself right, and the exception to the ruling allowing that to be done, has no shadow, even, of reason for its support.

The charge of the learned j udge, wherein he stated that “ it is for you [the jury] to determine from the evidence which has been produced before you, as to which of these persons is best entitled to the office, and who was really elected at that election,” was not designed to leave the jury at liberty to decide the case on their judgment of the qualifications of the candidates, and they could not have so understood him. The last clause of the sentence left no ground for misunderstanding his meaning. It simply propounded to them the inquiry, as to who was really elected at that election.” It was not error for the court to refuse to charge, that “ the presumption of law (under evidence given in this case of the result and declaration of the result of the canvass by the city canvassers) is, that the defendant is entitled to the office, and the relator is not entitled to the office.” For the learned judge had, but a few moments before, stated to the jury that he charged them, “ that McGuire, presenting himself before you with a certificate of election, is presumed to be justly entitled to his office; that it is the duty of the plaintiff, by satisfactory evidence, to overcome that presumption, and if he has not been able to satisfy you of the frauds which it is claimed have been committed, it is your duty to render a verdict for the defendant.” After so fully and clearly charging the proposition requested, there was no propriety in asking for its repetition. It was for that reason very properly refused.

The request to charge, that the parol statements of witnesses present at the several polling places in the contested districts, as to the announcement of the number of votes cast, were not entitled to the same weight as the official declarations of the city canvassers, could not have been properly complied with, under the evidence given. Those were matters strictly within the province of the jury. And which might properly prove most convincing in their judgment, was a matter which the court could not decide, nor control them in deciding. Both were pertinent for them to consider, and the court did right in leaving them at liberty to determine for themselves, how much credit, under the circumstances, could be given to either, subject to the restriction that the plaintiffs were bound to overcome the returns, before a verdict could be rendered in their favor. Besides, it is not within the province of the court to decide precisely how much weight the jury shall give to any of the evidence, in arriving at their verdict.

The substance of the request to charge that there was no evidence of fraud or perjury having been perpetrated in any of the districts' in the ward in question, and the jury have no right to presume any, has been already considered, under the objection presented that the verdict was against evidence. It was justly refused, for the reason that there was sufficient evidence given, tending to show fraud, to render the question, whether it existed or not, a very proper one for the decision of the jury. In fact it is not easy to see how the jury could well have avoided the conclusion expressed by their verdict.

As no other grounds have been taken in support of the appeals from the order denying a new trial on the minutes, and from the judgment recovered, it follows that they should each be affirmed, with costs. And for the reasons already given, the order setting aside the verdict and directing a new trial for newly discovered evidence, should be reversed, and the motion denied, with costs.

The other appeal, taken from the order denying a stay of all proceedings, as distinguished from the proceedings to retry the cause, it is not necessary now to consider. The disposition of the other appeals, renders that entirely unimportant. For that reason, it may as well be dismissed without costs, since the order applied for related to a simple matter of practice.

Davis, J., concurred.

Ordered accordingly.

       Code, § 349, sub. 3.

       Matter of Duff, 41 How., 350.

      De Fonclear v. Shottenkirk, 3 John., 170, 175 ; Bunn v. Hoyt, id., 255; Harrington v. Bigelow, 2 Denio, 109 ; Powell v. Jones, 42 Barb., 24.

      27 N. Y., 45.

       55 N. Y., 525.

       Dobson v. Pearce, 2 Kern., 156; Warner v. Blakeman, 4 Keyes, 487.

       Merritt v. Seaman, 2 Seld., 168.


source: Caselaw Access Project

author: Davis, P. J.:

license: Public Domain

text:
    In the Matter of the Petition of EDWARD BURKE, to Vacate an Assessment for Crosswalks, South-east corner of West and Morris streets.

      New York city—Assessment—§ 7, chap. 580,1872.
    An application to vacate an assessment, cannot be successfully made by a former lessee of the premises, who simply alleges that fact, and that he was, and still is, liable for the payment of the assessment.
    In order to prove the employment of a newspaper, designated to publish official proceedings, its acceptance must be shown.
    Section 7, chapter 580, of the Laws of 1872, relative to assessments in the city of New York, cures all irregularities, therein mentioned, in local assessments. (Daniels, J., not deciding this question).
    Appeal, by the Mayor, etc., of Hew York, from an order of the Special Term vacating an assessment. This case is in many respects similar in its facts to PhilVups v. The Mayor, ete., cunte, page 212.

      E. Delafield Smith, for the appellants.

      Neville & Andrews, for the respondents.

       See Lennon v. The Mayor, 55 N. Y., 361.

       For points of counsel, see Phillips v. The Mayor, page 214

   Davis, P. J.:

The assessment in this case was confirmed on the 13th of April, 1868. The petition to vacate the same was verified the 17th of February, 1874. The petition, which is subscribed by the attorneys only, alleges that the petitioner was at the time of confirmation, and still is the owner of the lots mentioned, and known and distinguished by ward numbers fifteen, sixteen, seventeen and eighteen. The proof does not sustain this averment. The only evidence on the subject, is found in the verification of the petition by Edward J. Burke, who testifies “ that he is the son of the lessee named in the petition that at the time of the confirmation of the above named assessment, on the 13th day of April, 1868, the petitioner was the lessee of, and, as such, liable to pay, and still is held liable for the payment of, the assessment imposed on the lots mentioned and described in said petition by ward numbers fifteen, sixteen, seventeen and eighteen.” According to the views expressed . in the opinion, in The Matter of the Petition of Samuel Phillips, this evidence was altogether insufficient to show such an interest in the petitioner, in the lands affected by the assessment, as entitles him to institute and maintain this proceeding. It shows only, that he was a lessee of the lots, at the time of the confirmation, but the fair inference from the statement is, that he ceased to be such lessee before the filing of the petition. All that is shown beyond this, is the legal conclusion of the witness, that as such lessee, the petitioner was “ liable to pay and still is held liable for the payment of the assessment.” Liable to whom, or in what manner, or under what circumstances and conditions, is not stated. If we are to assume that his liability is upon the covenants of the lease, the instrument should have been produced, to show under what circumstances the liability would arise. It is not at all probable that he is liable to pay void assessments, and if not, then if this assessment be void as he alleges, there is no liability either in law or fact on his part, unless he covenanted to pay assessments of that character. If it be valid, and his liability to pay is a part of the consideration on which he holds the term, he is not at liberty to dispute its payment, because to pay the assessment is to discharge an obligation which forms part of the consideration of his lease. The lease having already terminated, as would appear from his proof, the existence of the assessment is no threat prejudicial to the quiet of his enjoyment of possession under the lease. Hence, there is no apparent ground on which he can maintain proceedings of this character. The landlord may be quite willing, voluntarily to pay the assessment. In that case, if it be invalid, no obligation against the petitioner will arise, unless he covenanted to pay void assessments; in which latter case, the question of validity will also be immaterial, because he will only be called upon to perform the covenant by paying a part of the consideration of the lease; and it would not then lie in his mouth to assert any defense growing out of the alleged irregularities of the assessment. There is a complete failure, we think, in the case, to show any right on the part of the petitioner, to maintain this application. There was also a failure of proof to establish the alleged irregularity in respect of publication. The petitioner produced a certificate, signed by the comptroller under chapter 586 of the Laws of 1867, selecting and designating three daily and three weekly newspapers, “ wherein the proceedings of the common coumcU or either branch thereof \ and the notices of its committees shall be published dwri/ng the ■yean 1867.” The Hew York Leader is one of the weeklies named. There are several reasons why this proof was insufficient. First: The designation is, by its express terms, limited to the year 1867. All the proceedings in relation to the assessment in question, took place in 1868. There is no proof of a renewal of the appointment, nor of any fact indicating that the papers designated continued under any arrangement to make such publication in 1868. A search of files in the latter year, therefore, proved nothing. Second: There is no proof, whatever, that the ISTew York Leader accepted the appointment, and assumed or entered upon the employment which the designation offered. What is said on this subject in the Phillip's case, is directly applicable to the present case. To fail, therefore, in finding the proceedings of the common council in the columns of the Leader, between the 3d February, 1868, and the 15th of February, 1868, fell wholly short of proving that the proceedings were not published in all the papers, actuall/y employed by the city for such purposes. This conclusion is altogether in accordance with the ruling of the Court of Appeals, in The Matter of Douglass which clearly recognizes that the papers in which publications are required to be made by the seventh section of the act of 1857, are only those employed by the corporation.

These reasons are adequate for a reversal of the order of the Special Term, but it seems to me very clear, that the case is within the provisions of section 7, of chapter 580, of the Laws of 1872 ; and that all irregularities complained of, are cured by the remedial provisions of that section. The order appealed from should be reversed with ten dollars costs of the appeal, besides disbursements, and the petition denied, with ten dollars costs of the court below.

Brady, J., concurred; Daniels, J., concurred, without deciding what effect the act of 1872 should have in the case.

Order reversed and petition denied.

      46 N. Y.,42.

      Page 1412, vol. 2.


author: Davis, P. J.: Brady, J.

text:
    CHRISTIAN F. A. DAMBMANN, Respondent, v. FREDERICK BUTTERFIELD and others, Appellants.

      Fraudulent assignment for payment of debts — Fictitious debts —preference of— Evidence.

    In an action brought to set aside an assignment on the ground that it contained fraudulent preferences of debts which never existed, and that notes given to defendant were not collateral security for the repayment of amounts paid by him to the assignors, but were in fact purchased at such amounts, held,, that the defendant was properly examined as to the disposition made by him after the assignment of the notes alleged to be collateral security for the sums due him.
    Appeal from an order of the Special Term, directing defendant to answer certain questions propounded, to him on his examination as a witness before trial, under section 390 of the Code.
    This action was brought to set aside as fraudulent an assignment for the benefit of creditors made to the defendant Butterfield by De Forest, Armstrong & Co. The plaintiff charges, on the ground of fraud, that the assignment sought to be avoided, preferred Butter-field for $298,000, while in fact no sum whatever was due to him; that in fact the alleged loans were purchases of notes from the assignors, and that the object of the assignment was to cover that amount not due him.
    Butterfield was ordered to appear and submit to an examination as a witness before trial. He refused on the examination to answer certain questions which were put to him, as to the disposition of the notes after the assignment and on the parties applying to the court to have the objections passed upon Hr. Justice Donohue overruled the objections and ordered that the defendant answer them. On the examination being resumed, the defendant refused to answer certain questions, similar in their scope to those put to him on the first examina1 ion, and the plaintiff’s counsel thereupon obtained an order to show cause why defendants’ answer should not be stricken out for refusal to testify as directed by the court, and for such other order and relief as the court might see fit to grant. The court ordered Butterfield to answer the questions and to pay costs of the motion. From such order the defendant Butterfield appealed.

      A. J. Vanderpoel and A. Boardman, for the appellants.
    The acts of defendant subsequent to the assignment are not competent evidence. (Franklin v. Pinkney, 18 Abb., 188, 190; Gibson v. Pearsall, 1 E. D. Smith, 90; Greene v. Herder, 7 Robt., 455; Kerr on Fraud, 365; James v. McKernon, 6 John., 543, 565.) The assignee’s fraud in managing an assignment does not affect its validity. (Wilson v. Forsyth, 24 Barb., 105 ; Hardmann v. Bowen, 39 N. Y., 200; Casey v. Janes, 37 id., 608; Cuyler v. McCartney, 40 id., 221; Browning v. Hart, 6 Barb., 91; Cox v. Platt, 32 id., 126; Matthews v. Poultney, 33 id., 127; Pac. Mut. Ins. Co. v. Machado, 16 Abb. Pr., 451; Am. Ex. Bk. v. Webb, 15 How. Pr., 193.)

      W. Watson, for the respondent.
    Any evidence tending to show that the debt was fictitious was competent. (Webb v. Daggett, 2 Barb., 9; Fiedler v. Day, 2 Sand., 594; Mead v. Phillips, 1 Sand. Ch., 83; Bank Orange v. Fink, 7 Paige, 87; Jackson v. Cornell, 1 Sand. Ch., 348; Hart v. Crane, 7 Paige, 37; Adams v. Davidson, 10 N. Y., 309; Pine v. Rikert, 21 Barb., 469 ; Butler v. Stoddard, 7 Paige, 163.)
   Davis, P. J.:

The motion before the court was, that the answer of defendant be stricken out for refusal to testify as directed by the court, or for such other or further relief as the court may see fit to grant. ■ The costs of this motion, like all others, were in the discretion of the court, and although the court saw fit to make an order more favorable to the defendant than the one sought, it did not thereby lose its power to impose on him the costs of the motion. The questions propounded on the second examination were, at' least, in one respect, identical with those ruled upon by Justice Dónohue, and were all substantially in the line of propriety as marked out by his opinion. They would have been proper on a trial of the action at Special Term before the court sitting in equity, and therefore were competent on the examination under section 190 of the Code. It may be true that a valid assignment is not avoidable by the subsequent fraud or misconduct of the assignee; but where the issue is upon the validity of the instrument itself, for fraud, it is competent to show the disposition of the assigned property by the assignee, as tending to throw light upon the alleged' invalidity of the assignment. Especially is this so, where the fraud alleged is that the preferences to the assignee are of fictitious debts, or of debts that had already been wholly or in part paid. We think the questions were competent, and that the order of the court below was proper and should be affirmed, with costs.

Brady, J.

(dissenting):

The object of this action is to destroy the assignment made to the defendant, Butterfield, by De Forest, Armstrong & Go., and his examination should be confined to the issues created by the pleadings. The only question allowable, of those objected tó, in my understanding of these issues, is as follows: What is the entire amount you had realized from the notes assigned you as collateral security for money borrowed at the time of the assignment ? ” It is alleged that the assignors, were not indebted to the defendant Butterfield, and it is admitted by the latter that he received col-laterals for the loans made by him, which formed the indebtedness of the assignors. If he had received any sums from them at the time of the assignment, they should have been deducted from the amount of his claim, and the omission to do it, if such omission were made, would be a circumstance to be considered in reference to the good faith of the instrument. This question seems to have been answered substantially, however, by his statement: “ I did not collect anything from bills receivable I took from De Forest, Armstrong & Co., until after their assignment; ” and, having received nothing until the time named, the fund to which they belonged, was of the assigned estate, and subject to an investigation in a proceeding against him to account. The other questions are properly connected with such a proceeding, and have no legitimate bearing upon the issues, which must necessarily refer to the existing relations and objects in view at the time of, and prior to, the execution of the assignment. There can be no doubt that if the assignment was valid in its creation, no subsequent acts could invalidate it, although they might furnish a reason for the removal of the assignee. The order made by Mr. Justice Donohue is not appealed from, and it is conclusive upon the defendant Butterfield, so far as it applies ; but the appeal from the order of Mr. Justice Lawkenoe, which we are considering, is that the defendant Butter-field answer the questions propounded to him, and is, in its nature, an original order on the subject embraced within it, and therefore presents for review the propriety of the questions asked. I think the order appealed from should be reversed.

Daniels, J., concurred in affirmance of the order.

Order affirmed.


author: Daniels, J.:

text:
    THE SECURITY BANK OF THE CITY OF NEW YORK, Respondent, v. THE NATIONAL BANK OF THE COMMONWEALTH, Appellant.

      Appeal from order — when may he taken to the General Terrm—Judgment hy default — when opened—National hank — effect of appointment of receiver of— Affidavit of merits — when may he controverted.

    An appeal may be taken to the General Term, from an order aflecting a substantial right, even though it may be of a discretionary character. The term substantial includes all positive, material and absolute rights, as distinguished from those of a merely formal or unessential nature.
    A party will he relieved from.an excusable default, where he appears to have merits in his favor, and the application is made promptly after the discovery of the default. A probable defense to the claim made, alleged by the party in good faith, is sufficient; and the usual evidence required of its existence, is an affidavit of merits, which, under ordinary circumstances, cannot be controverted. But in cases where the good faith of the party may well be doubted, affidavits may be received to confirm the propriety of the doubt; and the court may require a disclosure of the case, in order to determine whether the application be made in good faith, and not for the simple purpose of delay.
    Where a receiver of a bank has been appointed under the national currency act, the bank still continues to exist, and a suit is properly instituted against it, and the defense should be made by it.

      Bank of Bethel v. Pahquioque Bank (14 Wall., 383) followed.
    A receiver was appointed, under the national currency act, of the books, etc., of the defendant, in September, 1878, who entered upon the discharge of his duties. On March 4, 1874, the summons in this action was served on the president of the defendant, who took no steps to defend the action, nor did he inform the’ receiver, or other officers of the bank, of such service. On the seventeenth of April, judgment was entered against the defendant. On the eleventh of May, an application was made by the receiver and some of the defendant’s directors, to. set aside the j udgment, and for leave to answer. Held, that, as the application was made with reasonable diligence after the discovery by the receiver of the default, and as such default was excused by showing the intentional concealment of the service of the summons, and the probability that the judgment had been recovered by the connivance of the officer on whom the summons was served, it should have been granted.
    Appeal from an order, denying a motion to set aside a judgment recovered by default, and for leave to answer.

      H. E. Tremain, for the appellant.

      W. H. Arnoux, for the respondent.
   Daniels, J.:

A receiver was appointed, nnder the national currency act, of the books, assets and records of the defendant, as an insolvent national banking association, in September, 1873, and he entered upon the discharge of his duties in that capacity. After that, and on the fourth of March, 1874, the summons in this action was served upon George Ellis, the defendant’s president, and he, to use Ms own language concerning his singular and extraordinary conduct following the service, supposing that his connection with the' bank ceased by the appointment of the receiver, “ took no notice of any papers that were served upon him, as an officer thereof, and did not do so in regard to the summons herein, nor did he inform said receiver of said service.” This is the sworn statement of the defendant’s president; and it so completely describes his utter want of moral, as well as official, sense of accountability, as to dispense with all further attempts at characterizing his conduct. The consequence of this inexcusable neglect to inform the receiver of the service of the summons, was, that on the 17th of April, 1874, a judgment was entered in favor of the plaintiff, and against the defendant, for nearly $57,000, and the receiver swears that his first knowledge of its recovery, or of the commencement of the suit, was on or about the 21st day of April, 1874, when a transcript of the judgment was presented to him by the plaintiff’s attorney. On the 11th of May, 1874, an order was procured, at the instance of the receiver and some of the defendant’s directors, who were actuated by a different sense of duty from that which impressed its delinquent president, for the plaintiff to show cause why the judgment should not be set aside, and the defendant have leave to answer the complaint; and on the twenty-sixth of that month, the motion was heard, and denied with liberty to renew it on further affidavits. It was renewed again, on additional affidavits, on the 16th of June, 1874, and then finally denied. The present appeal is from the order then made; and it is resisted strenuously, on the ground, among other reasons, that the order is not appealable. The particular reason assigned in support of that objection, is, that the order was one of a discretionary nature; and that, it most certainly was. But it does not follow from that circumstance, that the order is not appealable. For the Code renders all orders appeal-able to the General Term, which either affect a substantial right, or are made in summary applications after judgment, and affect a substantial right. This right is not qualified by the fact that the order shall not be one of a discretionary character. No such qualification has been attached to the right of appeal, taken to the General Term. In this respect, the appeal differs from that which may be taken to the Court of Appeals. For, when an appeal is taken from an order affecting a substantial right to that court, the order, to be appealable there, must be one which does not involve any question of discretion. The distinction existing between the two courts, in this respect, is clear and decided, and the law making it, provides for an appeal to the General Term, from an order affecting a substantial right, even though it may be of a discretionary character. This term, substantial, had no special legal signification when it was incorporated by the legislature into the Code, for the purpose of describing the cases in which appeals from orders could be taken to the General Term. For that reason, it must be construed according to its popular and usual signification; and, understood in that manner, it includes all positive, material and absolute rights, as distinguishable from those of a merely formal or unessential nature.

An obligation imposed upon a party, by an order subjecting him to the payment of a sum of money, great or small, has been held to fall within this designation of an order affecting a substantial right, and therefore appealable to the General Term, even though discretion ary That was the nature of the judgment recovered in the present action; for the order appealed from, by the denial of a defense, imposed upon the defendant an actual, positive obligation for its payment. As long as that order remains in force, the obligation to pay is unqualified and irrevocable. Besides that, the right to defend against a demand made in a court of justice by way of action, is of a positive and substantial nature. It is one which has been secured with care and consideration in the administration of the law, so much so that judgments recovered without affording an opportunity for defense, have, with great uniformity, been held ineffectual and void wherever the principles of the common law have prevailed. And the general course of practice has been maintained, so as to secure the observance of that right in' favor of parties who have not forfeited it by laches, or some other course of conduct rendering it inequitable, under the circumstances, to afford relief. This power has been conferred upon the court in which the action may be pending, and not upon any exclusive term ' or branch of the tribunal. It is true that the right of appeal from orders involving its exercise, has often been denied on the mere ground that they were discretionary in their character. But, as that reason is very clearly untenable, and has been so declared by authorities controlling the action of this court, it is not necessary to refer more particularly to the cases in which that denial has beeen sustained. It is sufficient to say, that, under the exposition now given to the statute, and which is sustained by its terms, and the authorities already cited, all orders affecting a substantial right are appealable to the General Term, and the order appealed from in this case is one of that character.

The power, as already mentioned, has been conferred upon the court in which an action may be pending,- upon such terms as may be just, at any time within one year after notice thereof, to relieve a party from a judgment, order, or other proceeding taken against him through his mistake, inadvertence, surprise, or excusable neglect. The power, it will be seen from this reference, has been supplied in very general terms, but the circumstances rendering its exercise discreet and proper, are not mentioned. They are, therefore, by another provision left, to be ascertained according to the preceding course and rules of practice, And, by them, a party was always relieved from an excusable default, where he appeared to have merits in his favor, and the application was made promptly after the discovery of the default. For the purpose of showing merits, a sure and certain defense was never required. What was necessary for that purpose, was, a probable defense to the claim made, alleged by the party in good faith. And the usual evidence required of its existence, was an affidavit of merits, which, under ordinary circumstances, was not allowed to be controverted, because of the danger of injustice resulting from such a mode of trial. In Hanford v. McNair affidavits were produced, denying that the defendant had a defense; and by way of answer to them, Savag-e, O. J., replied that, “ The court do not hear affidavits in opposition to an affidavit of merits.” That, as a general proposition, still continues to be the law. But in cases where the good faith of the party may well be doubted, they may be received for the purpose of confirming the propriety of that doubt; and, in such cases, the court may go further, and require a disclosure of the case, so far as to enable it to determine whether the application be made in good faith, and not for the simple purpose of delay. That is the common practice, and it is sanctioned by a moderate exercise of the discretion conferred upon the court. But still, where the application for relief from the default is promptly made, and no reason exists for suspecting the good faith of the applicant, it should uniformly be allowed to prevail. This was the course pursued, when the rules of practice were applied with greater strictness than has been observed since the enactment of the Code of Procedure. In Davenport v. Ferris, the motion to open the default was made before the court in bcmoo, and Thompson, J., declared himself in favor of setting aside a default, whenever the party swears to a defense on the merits, and no opportunity for a trial has been lost. Van Ness, J., concurred for the same reason, and Kent, C. J., assented without giving any reason. A similar motion was made in term time, in Tallmadge v. Stockholm, where it was held that the court had adopted the general rule, “ that a default for want of a plea, though regularly entered, will be set aside in every case, on the payment of costs, where there is an affidavit of merits, and no trial has been lost.” And the same rule was again declared by the court, in Packard v. Hill. Under this rule, the defendant was entitled to be relieved from the judgment recovered through the intentional misconduct of its presiding officer, and allowed to answer. For the application was made with reasonable diligence after the discovery by the receiver of the default, to whose protection the law had confided the interests of the defendant and its creditors. The default was excused by showing the intentional concealment of the service ot the summons, and the probability that the judgment had been recovered by the connivance and desire of the officer, on whom the service was made. The application was also supported by a proper affidavit of merits, an affidavit of the bookkeeper, that $50,000 of the plaintiff’s demand was not credited upon the defendant’s books, and the affidavits of ten of the defendant’s directors, that they liad no knowledge or information of the existence of such a loan, and some evidence that it consisted of money borrowed for his own personal uses, by the person on whom the summons in the action was served. Although the affidavits and proofs of the plaintiff, used on the motion, tended to show that the loan was made to its president for the defendant, the case still indicated that the liability was contested in good faith, and with a probability at least, that the receiver, and the directors, co-operating with him, might, in the end, prove to be successful in the defense of the action; and that probability was in no slight degree sustained by the misconduct of the defendant’s president. For it afforded good ground to suspect that he concealed the service of the summons from the other officers of the defendant, and from the receiver then in charge of its books, records and assets, for the purpose of charging such assets with the payment of a debt owed solely by himself.

The bank continued to exist, notwithstanding the appointment of the receiver. The suit was therefore properly instituted against it, and the defense should accordingly be made by it.

The order appealed from should be reversed, with ten dollars costs and disbursements on the appeal to the defendant and appellant, and an order should be entered setting aside the judgment, allowing the defendant, within ten days after notice of the order, to serve an answer to the complaint, on payment, within that time, of ten dollars costs of opposing the motion, and the disbursements made on the entry of the judgment.

Davis, P. J., and Lawrence, J., concurred.

Ordered accordingly.

       Vol. 13, U. S. Statutes at Large, 115.

       Code, § 849, subs. 3, 5.

       Code, 111, sub. 4.

       People v. N. Y. Central R. R. Co., 29 N. Y., 418 ; Matter of Duff, 41 Howard, 350; Livermore v. Bainbridge, 47 id. 354.

         People v. N. Y. Central R. R., 29 N. Y., 421, 422.

       Code, §174.

       Code, § 469.

         2 Wend., 286.

      6 John., 131.

       14 John., 342.

      4 Cow., 55.

      Bank of Bethel v. Pahquioque Bank, 14 Wallace, 383.


author: Brady, J.:

text:
    JOSEPH DURYEA, Plaintiff, v. THE MAYOR, Etc., OF THE CITY OF NEW YORK, Defendants.

      Grant of lots under water—covenants contained in—construction of— Conditions— when void as rejmgnant to grant—Street commissioner —powers of.

    This action was brought to recover damages for injuries to lands oí plaintiff, occasioned by the discharge of water upon them, from sewers constructed by the defendant. The lands were originally under water, and had been filled in by the plaintiff. By the deed from the defendant, under which the plaintiff claimed, the grantee was obliged, when required thereto, hut not till then, to erect according to any resolution or ordinance oí the corporation, good and. sufficient, firm avenues, wharves, etc., in the directions mentioned, and according to maps referred to; and by said deed it was further agreed, that the grantee was not to build the wharves and hulk-heads, avenues or streets, or any part thereof, or make land in conformity to the covenants mentioned, until permission for that purpose should be first obtained from the defendant. Held, that although the filling in, to make land of the intermediate spaces between the shore line and the line of the streets, etc., was not expressely prohibited by the deed, yet, from the covenants contained therein, it was to be" inferred that such filling was not to take place until the permission of the defendant had first been given.
    In 1856, an ordinance was passed, extending Bast street, and authorizing and directing the adjoining proprietors to make and complete that street, and to fill in and level the spaces between their property and the street. Held, that the direction contained in the ordinance was not to make land of water lots, hut only to the proprietors of land adjoining or nearest, or opposite to Bast street, to fill in between their property and that street.
    In 1867, the plaintiff obtained from the street commissioner permission to build a bulk-head in front of the lots in question, under the direction of the superintendent of wharves, “ the same not to be filled in behind until directed by said superintendent.” The plaintiff relied upon this as a permit from the defendant to fill in the land. Held (1), that the commissioner of streets had no authority to direct or permit the construction of bulk-heads; (3), that, from the very terms of the permit, the land was not to he filled in, until directed by the superintendent of wharves, and that no such direction was proved in this case.
    The plaintiff insisted that the conditions in the deed to his grantor, were repugnant to the grant, and void. Held, that the defendant, being a municipal corporation with legislative powers in reference to streets, avenues and wharves, could make no contract limiting them, and could therefore impose a condition on any grant embracing such subjects, with reference thereto, not inconsistent with the law of the land.
    Motion for a new trial, on exceptions ordered to be heard in the first instance at the General Term. The facts are stated in the opinion.

      A. J. Vanderpoel and F. J. Fithian, for the plaintiff.

      E. Delafield Smith and D. C. Calvin, for the defendants.
   Brady, J.:

The plaintiff’s claim to compensation in damages, rests upon his title, derived through a grant made by the defendants, The Mayor, Aldermen and Commonalty of the city of ISTew York, to the Farmers’ Loan and Trust Company, bearing date the 29th January, 1847, conveying to them divers water lots and soil under water, to be made land, and gained out of the East river or harbor of Yew York, and which included the premises subsequently, and on or about the 1st February, 1866, aliened to him. The cause of the injury is the alleged building and construction of sewers near the premises of the plaintiff, “ in so careless and improper a manner,” that large quantities of water and filth ran from them, upon such premises, washing away large quantities of earth, and carrying away and destroying a large portion of the bulk-head erected by him. Upon the trial, the plaintiff proved his purchase of the loous in quo, the erection of a bulk-head across the east end of his premises by permission of the street commissioner, and attempted to show that, after the completion of the bulk-head, he proceeded to fill in and make land between the shore and the bulk-head. It was also proved that the sewers, one or both of which occasioned the injury complained of, were in existence at the time he commenced to build the bulk-head, and to fill in to make land. Yo evidence was offered, however, to show that the sewers were improperly or carelessly constructed, as averred in the complaint. The covenants and conditions, in the grant to the Farmers’ Loan and Trust Company, under which the plaintiff necessarily claimed, must be resorted to and interpreted, in order to ascertain whether he was in such relation to the defendants, as enabled him to call upon them to respond, assuming his alleged injuries to have been sustained. The deed to them, and under which the plaintiff claims, as already suggested, was not an absolute, unconditional grant of the lots described. It contained covenants and conditions to which the transfer was subservient. The grantee was obliged, when required thereto, but not till then, to erect, according to any resolution or ordinance of the corporation, good and sufficient firm avenues, wharves or stretets in the direction mentioned, and according to maps referred to, and, in addition, firm bulk-heads, wharves, avenues, or streets in front of these streets, avenues or wharves, thus particularly mentioned and referred to. It is further covenanted, that the true intent and meaning of the grant is, that the grantees will not build the wharves and bulk-heads, avenues or streets, or any part thereof, or make land in conformity to the covenants mentioned, until permission for that purpose should be first had and obtained from the grantors, the defendants.

The" deed also contained a condition in reference to the grantees, their heirs or assigns, that if they should make default in the performance of any or either of the covenants, on their part to be observed, performed, fulfilled and kept, then, and in such case, every article, clause or thing therein contained, should become absolutely void, and the grantors thereafter seized of the premises, discharged of any claim, right or pretense of such grantees. The prohibition against filling in, to make land of the intermediate spaces between the shore line and the line of the streets, avenues, wharves or bulk-heads, was not expressly stated, but neither the streets, nor any part of them, were to be made without the requirement contemplated, or the permission given, for which provision was made. The lots were to be made land, and gained out of the East river or harbor of blew York, and it is evident that this could not be done, without the barriers which the wharves, streets, avenues and bulk-heads would accomplish, against the influence of the tide-waters upon the soil deposited. This may be explanatory of the absence of any express provision in regard to the filling in of the space referred to, and affords a reasonable presumption that this was understood by, and in contemplation of, the parties when the deed was made. The filling in to make lands, was, in other words, so necessarily connected with the construction of the streets, avenues, wharves and bulk-heads, that it could not be accomplished without uniting them. The course of procedure by the plaintiff illustrates this. He did not begin to fill in, until he had completed the bulk-head. This fact is shown by the question asked him and rejected. There are other reasons, however, which may be called into view. The rights of the owners of adjoining lands — the location of sewers and riparian rights—might require consideration by the defendants, and such directions given, as would avoid a clashing of these interests. The defendants were to be consulted, that, all things considered, the permission might be given with due regard to the rights and interests of the people, and of the corporation. The whole scope of the deed seems to be, therefore, that the water lots should not be made land, until the grantees were required to make them so, or the defendants gave permission to have it done, which, in reference to the time and manner in which it should be accomplished, would in effect be the same. The permission could embody the requirements on the subject. It is not pretended that the plaintiff was required to till in, to make the land, or that he had permission to do so. It is insisted, however, upon his part, that the ordinance extending East street, and authorizing and directing the adjoining proprietors to make and complete that street, and to fill in and level the spaces between their property and that street, together with the permit, obtained from the street commissioner, to build a bulk-head, constitute a general consent to all owners, and a particular consent to him, to fill in and make his lots. The resolution referred to, was passed in December, 1856, and declared that the street should be made, and the filling in completed, before the 1st January, 1860. The plaintiff acquired his title in 1866. The direction contained in the resolution, was not to make land of water lots, but to the proprietors of land adjoining, or nearest, or opposite to East street, to fill in between their property and that street. It was not therefore a permission given to the plaintiff or his grantors, unless he or they were such proprietors, assuming that East street in its locality embraced the lots of the plaintiff, of which there is no evidence. The requisition was to fill in and level the space between the property of the proprietors named, and East street, and not upon owners of water lots, only to make land of them. If this construction of that resolution be erroneous, it avails the plaintiff nothing, because he has failed to bring himself within its purview. He has not shown that East street embraced the locality of his lots - He was bound to do so, in order to reap the advantages which the resolution furnished. He sought to make the defendants liable for negligence in the discharge of their duties, and he was obliged to establish his charge by proof. The permission to fill in the lots, was not given, therefore, either directly or indirectly, and the filling in was done without authority. The plaintiff is not aided in his difficulties, by the permit of the street commissioner. That officer was not authorized to give the permission contemplated. The covenant in the grant declares that the bulk-head must be built on the requirement or permission of the defendants. We have not been referred to any statute or ordinance, delegating to the commissioner authority to grant the permission. His powers are defined by section 23, chapter 446, of the Laws of 1857, which creates an executive department, denominated the street department, and which, it is declared, shall have cognizance of building, and repairing, and lighting wharves and piers, under the ordinances of the common council. This confers no authority, other than a supervisory one. It relates to the building of wharves, in accordance with the ordinances of the common council. It does not, in letter or spirit, delegate to him the power, either to direct the building of bulk-heads or wharves by another, or to give permission to another to do it, in accordance with a grant made by the common council to whom he was subordinate. The common council, in 1859, by ordinance approved June twentieth, declared that the street department should have cognizance, among other things, of building, repairing and lighting wharves and piers, but, at the same time, provided that no expenditure should be made for any work or supplies, relating to any matters within the cognizance of the street department, unless authorized by the common council; except when necessary, and then, only, to the extent of $250. These powers relate to expenditures by the corporation —■ to buildings by them at their expense, and to them only; and, even in such cases, their authority must be sought and exercised, and their sanction given. The building of a bulk-head by some other person, under contract with them for that purpose, and as they shall direct or allow, is not within the cognizance of the street commissioner, until recognized by them as an act to be done. He cannot determine the time when, or manner in which, that covenant shall be performed. He cannot, in other words, build a bulkhead on his own authority, or allow one to be built. It thus appears that the authority to grant permission, was neither conferred by ordinance or by statute. The plaintiff was dealing with a municipal corporation possessing extensive powers, many of which it could not barter away by contract. The conditional character of the grant, itself gave him notice of their continued dominion over the aliened area. His rights were subordinate to the legislative control of the defendants, acting within the powers conferred upon them in that respect. It was obligatory upon him, therefore, when he sought privileges, to see to it, that he obtained them from the proper source — the ruling authority. He did not do so, and his acts were unlawful. If, however, we resort to the permission, itself, given by the street commissioner, as a justification for the plaintiff’s proceedings, we find that it was limited in terms. It gave the plaintiff authority to build a bulk-head, but expressly declared that the same was “not to be filled in behind, until directed by the superintendent;” and thus the defendants, even through their officer, maintained the right to determine the time for filling in. There is no force in the further suggestion on this subject, that the conditions in the deed to the Farmers’ Loan and Trust Company, are repugnant to the grant, void, and therefore of no binding validity. The answer to that proposition has been already stated, and it is, that the defendants, being a municipal corporation, with legislative powers in reference to streets and avenues and wharves, could make no contract limiting them, and could therefore impose a condition on any grant embracing such subjects, with reference thereto, not inconsistent with the law of the land. There is, however, a further answer, and that is, that the defendants are not seeking to enforce a condition against the plaintiff. He is the actor, not they. He seeks to compel them to pay him for injuries, which occurred to him by reason of his own unauthorized acts, and he must fail. Whether a court of equity would relieve him, if the defendants were endeavoring to destroy his grant, is another question, and one we are not called upon to discuss.

It may be said in addition, and in conclusion, that the case is also deficient on the question of negligence, in regard to the construction of the sewers. The duty of determining the location and dimensions of sewers,-is in its nature judicial; and the omission to construct one, or the failure to make it of sufficient size, creates no liability, although the obligation to construct it properly, and keep it in repair, being ministerial, negligence in its performance, renders the city liable for damages which may result therefrom.

The judgment should be affirmed.

Davis, P. J., and Daniels, J., concurred.

Judgment affirmed.

       Furman v. The City of New York, 5 Sandf., 40.

       Mills v. City of Brooklyn, 32 N. Y., 489 ; McCarthy v. The City of Syracuse, 46 id., 194,

       Id.


text:
    OSCAR ZOLLIKOFFER, Appellant, v. WILLIAM F. HAVEMEYER, Mayor, and others, Respondents.

      Ohap. 161, Laws of 1872 — Advertisements for proposals—Bids—when to he rtfeeted.

    The defendants, under the provisions of section 73, chapter 335, Laws of 1873, advertised for proposals for lighting the city with gas. All the gas companies, except the New York Mutual Gas-Light Company, were bound by agreement among themselves, not to lay pipes or furnish gas in any part of the city, except that allotted to it under the terms of such agreement. The Mutual Company offered to light the lamps in streets in which its mains had been laid, which streets constituted a portion of the area allotted to the Metropolitan Gas Company by the said agreement, at thirty-five dollars per lamp, per annum, and was awarded a contract to do so. Proposals were made by the Metropolitan Company, which were rejected for irregularities in the bids. Their proposal was thirty-seven dollars, per lamp, per annum, if the contract was awarded for all the public lamps in their district, and thirty-nine dollars if it was for a portion only. On a readvertisement for proposals for that portion of the district not awarded to the Mutual, the contract was given to the Metropolitan for thirty-three dollars, per lamp, per annum.
    By the terms of the advertisement, the proposals were to be opened at noon, and the performance of the contract to commence on the same night. The proposals of the Mutual were accompanied by a letter, asking the contract tobe modified, by adding thereto, “Provided sufficient time is given this company to make the necessary connection,” as they had not then connected their mains with the lamps. In an action brought to restrain the defendants from executing the contract with the Mutual, held, that the proposal was not irregular, because of the proviso added to it, and that the contract was properly awarded to this company. That the subsequent bid of the Metropolitan Company, of thirty-three dollars per lamp, was not to be employed to the prejudice of the defendants, or either of them. It was a subsequent transaction, and one which they were not bound to anticipate.
    Appeal from an order made at Special Term, denying a motion for an injunction to restrain the mayor, comptroller, and commissioners of public works, from executing a contract with the Mutual Gas-Light Company, to light some of the street lamps in Hew York.

      Aug. F. Smith, for the appellant.

      Geo. P. Andrews, for the respondents.
   Brady, J.:

The plaintiff, as a tax-payer, commenced this action under and by virtue of the act of 1872, which provides that all officers, agents, commissioners and other persons acting for and on behalf of any county, town or municipal corporation in this State, and each and every of them, may be prosecuted, and an action maintained against them, to prevent waste or injury to any property, funds or estate of such county, town or municipal corporation, by any person residing in such county, town or municipal corporation, assessed for, and liable to pay taxes therein, or who has paid taxes therein within one year previous to the commencement of any such action or actions. The facts and circumstances which prompted it are as follows: The defendants Havemeyer, Green and Yan Wort, under the provisions of section 73, chapter 335, of the Laws of 1873, advertised for proposals for lighting the city with gas. That section authorizes the commissioner of public works, in conjunction with the mayor and comptroller, to contract for lighting the streets, avenues and places with gas, containing a prohibition, however, against any arrangement or agreement with any company or companies for such purpose, for a period longer than a year at any one time, or for an amount in excess of the sum appropriated therefor. In answer to a proper advertisement, proposals were received from the several gas companies of the city, which, with the exception of the Hew York Mutual GasLight Company, by agreement among themselves, were bound not to lay pipes or furnish gas in any part of the city, except that allotted to it under the terms of such agreement. The Mew York Mutual Gas-Light Company was awarded a contract for lighting the lamps in streets which were within the area allotted to the Metropolitan Gas Company, of which the plaintiff is, and for several years has been, the president. Proposals were made by that company for the streets covered by the contract mentioned, but were rejected for irregularities in the bids. Their proposal was thirty-seven dollars per lamp, per annum, provided the contract was awarded for all the public lamps in their district, and thirty-nine dollars per annum for each lamp, if the contract was only for a portion of the public lamps in that district. It must be borne in mind, that, by the operation and effect of the mutual agreement and consequent allotment of districts, the companies concerned could not compete with each other, and that the only competitor, as a result of that arrangement, was the New York Mutual Company who were not confined to any district, or bound by any allotment. The proposal of the Mutual Company was thirty-five dollars per lamp, per annum, where its mains had been laid, but, inasmuch as they were not laid entirely in districts covered by the Harlem and Metropolitan Companies, it became necessary to readvertise for proposals as to that part of the city, and within the districts of the Harlem and Metropolitan, respectively, for which a contract could not be awarded to the Mutual, its mains not having been laid therein. The subsequent hid of the Metropolitan was thirty-three dollars per lamp, per annum, but that of the Harlem, the same as before, namely, thirty-nine dollars per lamp, per annum; and there being no competition — no lower bidders — the proposals were necessarily accepted, being regular in form.

The Mutual Company had not, however, up to the first of January, 1874, and consequently not at the time of its bid, made the necessary connections between its main pipe and the city lamps, and therefore their proposals were accompanied by a letter from its president, saying on behalf of his company, that, under a strict construction of the first clause of the proposal, it was physically impossible (as the proposals were to be opened at noon, and the performance of the contract to commence on the same night) for any company, other than those who were then furnishing the gas, to bid successfully, and asking therefore, the interpolation of the following sentence: “ provided sufficient time is given his company to make the necessary connection; ” the object being to enable them to establish the necessary connection between the main pipes and the lamps, which they had not then accomplished, as already stated. This statement of facts and circumstances, is sufficient to make the objections urged intelligible. These objections are,

1st. That the proposal was irregular, because of the proviso recited, and

2d. That the subsequent bid for thirty-three dollars per lamp, per annum, made by the Metropolitan upon the readvertisement, demonstrates that the whole district could have been lighted for thirty-three dollars per lamp, per annum, involving a saving to the city, of the difference between that sum and the amount per lamp which was to be paid to the Mutual Company for the light to be furnished by them.

The question presented is the value of the objections, either or both. The ordinances of the common council, in reference to the manner in which contracts shall be made by the persons to whom the duty -is assigned, contain many provisions, some of which are matters of form, and not of substance. They relate to the box called the estimate box, in which the bids are to be placed, and provide for an opening in the top of the box; keeping the box locked, except at such times as it may be necessary to open it for the purpose of examining the bids; and that the key must be retained by the head of the department, etc. It is also declared by them, that all bids which are not made in conformity to the ordinances, shall be rejected, etc. The object of these ordinances, so far as they relate to the box and its privacy, is to prevent the bidder from ascertaining what his competitor, if any, has done, and thus compel him to make his proposals independently of all others. The object of the declaration, that all bids which do not conform to the demands, shall be rejected, does not mean a literal, .but substantial, compliance with the requirements. It does not mean mere matters of form, but of substance, unless the matters of form are so blended with those of substance that they cannot be separated. It will be perceived that the proviso objected to, is not a defect in form or substance, in regard to the ordinances. It is the addition of something which in no way affects the service to be rendered, but the time only when such service was to begin. It was not founded upon any fancied advantage to be derived from its interpolation, but for the purpose of enabling the contracting parties to do what was indispensably necessary, to enable them to perform the contract which they were willing to make. If it was a departure from the strict, literal terms of the advertisement and the ordinances, which is doubtful, it was not from the spirit of either; the sole purpose and object of which was to obtain for the city, from responsible persons, a contract upon the best possible terms. It did not limit the obligations of the company, other than to give them a reasonable time to' prepare, and that reasonable time was afterward shown to be fourteen days, in which period they could accomplish all that was necessary. The statute authorizes an action to prevent waste or injury to any property, funds or estate of the corporation. In what respect does the interpolation of the proviso bring this case within its provisions ? What waste or injury, in any respect, would result from it ? In order to consider these questions, it is necessary to understand the circumstances existing when the proposals were opbned. The Metropolitan Company had bid thirty-seven dollars, conditionally, per lamp, as their lowest price, and the Mutual Company thirty-five dollars per lamp. There were no other competitors, and could not be, for the other companies were bound to abstain from bidding. The object of such an understanding is readily understood. The defendants intrusted with the power of awarding the contract, saw at once, that there would be a saving of from two to four dollars per lamp, for each lamp embraced in the contract given to the Mutual Company, and, as to the balance of the lamps in the district, they would be compelled to accept from the Metropolitan Company the bid they might make on a readvertisement. The compulsion would arise from the combination for allotment, which had been carried out by agreement between the companies other than the Mutual, as already stated. The defendants named were not required to speculate upon the probability of a bid from the Metropolitan Company, more favorable than that which they had already made. The Metropolitan Company had declared, that if any part of their district was given to another company, their price would be thirty-nine dollars per lamp, and thirty-seven dollars per lamp if their contract embraced it all. The obstacle in the way of making the better contract at the time, was the proviso by which sufficient time was to be given the Mutual Company to make the necessary connection. Its adoption could, in no way, operate injuriously to the city or its interests. The-Mutual Company could make no charge until the gas was furnished, and the delay would have been only fourteen days. It would be a very erroneous construction of the ordinances, or of the effect of the proviso in the proposals, to hold that the facts and. circumstances considered, established a case within the statute of 1872. There is no pretense of collusion, fraud or bad faith. There is no pretense of evil design or willful departure from prescribed duties, and there is no evidence, from which the conclusion should be drawn, that any other than a proper consideration of the public interests, influenced the defendants mentioned, in awarding the contract to the Mutual Company. There is no pretense that that company had any sinister designs, or that they were influenced in making the bid with its proviso, from any other than a fair spirit, of competion, alike of advantage to them and the corporation. What they asked, was a necessity, but it was not to the prejudice of the people, but, with the then existing facts of which mention has been made, was for the benefit of the city. It may, indeed, be claimed, that to have rejected the proposal, would have been to place the whole subject under the control of the Metropolitan Company, by rejecting all competition. It must also be said, that the difference between the proposals to be made, in their literal sense, and those in fact made, is too unimportant to warrant the restraint sought to be imposed. The abuse should be substantial, if not designed. It is neither. The objection to the proviso is technical, perhaps. It may be so regarded, in the absence of all suggestions of evil intended, or resulting from its acceptance. It is clear, however, that its adoption was justified by existing facts and circumstances, in the consideration of which, it is important to bear in mind the competitors and the covenants that bound them to assist, and not to interfere with each other.

In the view thus expressed, of this controversy, it is apparent that the second proposal of the Metropolitan Company, of thirty-three dollars per lamp, is not to be employed to the prejudice of the defendants, or either of them. It was a subsequent transaction, and one which they were not, nor was either of them, bound to anticipate. Whatever rights were enjoyed, or obligations imposed, at the time the proposal of the Mutual Company was accepted, are to be invoked, and no other, in determining the propriety of sustaining this action. ¡None of these warrant our interference, and we think the order appealed from should be affirmed.

Davis, P. J., and Daniels, J., concurred.

Order affirmed.

       Chap. 161, vol. 1, p. 467.

       Rev. Ord., pp. 187 to 201.


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    BERNHARD MAYER, Appellant, v. THE MAYOR, Etc., OF THE CITY OF NEW YORK, Respondent.

      Assessment—payment of, by mistake—when may be recovered back.

    The plaintiff was the owner of premises designated by ward number twenty-eight, in block ninety-eight, adjoining lot number twenty-seven in the same block. The plaintiff, intending to pay an assessment which had been imposed upon his lot, by mistake paid the assessment on lot twenty-seven, which latter assessment was subsequently declared void. In an action brought by the plaintiff to recover back the money so paid, held, that he was entitled to recover ; and that his right so to do was not affected by the fact that the mistake arose from a want of care on his part, or that the defendant could not be restored to its original position by paying the money back.

      Allen v. The Mayor (4 E. D. Smith, 404) followed.
    Appeal from an order sustaining a demurrer to the complaint herein, on the ground that it did not state facts sufficient to constitute a cause of action. This action is brought to recover money which the plaintiff, by mistake, paid to the defendant for a local improvement. The plaintiff intended to pay the assessment on his own land, but by mistake paid that on the adjoining lot.

      Neville & Andrews, for the appellant.

      E. Delafield Smith, for the respondents.
   Brady, J.:

The plaintiff was the owner of premises, designated by ward number twenty-eight, in block ninety-eight, adjoining lot designated as twenty-seven in same block. An assessment had been imposed upon his lot, and he proceeded to pay it, but, by mistake, paid the assessment which had been laid upon lot twenty-seven, and which was subsequently declared to be void. These facts are admitted by the demurrer. The case of Allen v. The Mayor is an authority in favor of the plaintiff’s right of action. It is not distinguishable in principle from this case. The plaintiff there, was notified that his lands were assessed, and he paid the amount indicated. He subsequently discovered that no ass'essment had been imposed upon his lots, but upon other lots in the same street in which his were situate, and which were supposed to belong to his grantor, to whom the notice of assessment was directed. The defendants claimed, that by the payment, their lien upon the lots actually assessed, was extinguished, and urged against the plaintiff’s recovery, that he was guilty of laches, in not advising himself of the facts. The plaintiff’s right of action was maintained. Justice Woodruff, who expressed the opinion of the court, said, that the cases cited by him showed that a plain and palpable ignorance of facts, at the time of the payment, would enable the mistaken party to recover it back, and further, that there was nothing to show that on the ratification of the mistake, the defendants might not proceed, by all available means, to collect the assessment from the proper source. It has since been held by the court of last resort, not only that it does not affect the right of the payer to recover, that the mistake arose from a want of care on his part, but that it is equally unavailable to show that the defendant cannot be restored to his original position upon paying the money back. The party having the legal right must prevail. The recovery in cases of this character, rests on the principle, that, in equity and good conscience, the money should be restored. It does not comport with the dignity and power of the defendants as a corporation, that it should retain money thus received, unless its payment was productive of loss. We are not advised of this. There is nothing to show such a result. In the legal aspect of this case as presented, the conclusion is otherwise, the land being liable for the assessment which was laid upon it. It may be said with propriety, that the person to whom the plaintiff paid the money, supposed, nay believed, that the payment was made by the owner of the lot to which the payment related, or his representative. If he had known or supposed him to be otherwise, it would not have been good faith to have received it without inquiry. Although the case in 40 New York, seems to set at rest the proposition that the receiver cannot be called on to refund when the discharge of that duty will damnify him, it may yet perhaps be regarded as an open question.

The cases cited discuss the doctrine of estoppel in pais, and although there seems to be no place in this controversy for the application of such principle, nevertheless the defendants should have the opportunity of assailing the validity or good faith of the plaintiff’s claim, if they can do so by answer to be interposed. The recovery of the plaintiff, assuming the facts to be as stated and admitted, must commend itself to every tribunal, for the assessment paid, was subsequently declared void, and it had no merit as a claim. Indeed, it is as if no assessment had been imposed at' all, and thus, in effect, becomes, in all respects, like the case of Allen v. Mayor (supra). The plaintiff having paid money under a plain, palpable mistake, the judgment rendered in the court below, was wrong, and should be reversed, but with liberty to the defendants to answer, on payment of costs. Ordered accordingly.

Davis, P. J., and Daniels, J., concurred.

Judgment reversed, with liberty to defendants to answer on payment of costs.

       4 E. D. Smith, 404.

       The Kingston Bank v. Eltinge, 40 N. Y., 391; Union National Bank of Troy v. Sixth National Bank of New York, 43 id., 452; Duncan v. Berlin, 46 id., 685; Lawrence v. American National Bank, 54 id., 432; Bank of Commerce v. Mechanics’ Banking Association, 55 id., 211.

        Supra.


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    CAROLINE M. CAMPBELL, Administratrix, etc., Respondent, v. WILLIAM HOGE, Impleaded with JAMES ROBB, Appellant.

      Discovery of papers — when allowed, — what must Tie shown to entitle pa/rty to.

    A party cannot compel the production of hooks, papers and accounts unless it appears that such production is indispensably necessary and not simply a precautionary measure. Such necessity does not exist when the party applying may have in his possession, or under his control the means of acquiring all the information which he seeks to obtain.
    Appeal by the defendant Hoge from an order denying an application for an inspection and production of papers.
    This action was brought to recover moneys deposited by the plaintiff’s intestate with the defendants, his bankers. The firm of William Hoge & Co., composed of the defendants, were bankers in the city of New York and received large deposits from the deceased between 1852 and 1856. On December 31, 1856, the defendant Eobb withdrew from the firm, Hoge continuing the business, and agreeing to pay all outstanding liability. The defendant, Hoge, moved for a discovery of the “ accounts, from time to time furnished by Hoge & Co. to Campbell, and all letters relating to the transactions.” His petition sets forth that the plaintiff had accounts rendered, and letters written by the defendant to her husband. “ That he has not in his possession, or under his control, any of the said accounts or letters or any copies of the same. That during the great length of time which has elapsed since the transactions in question, the papers and books of the firm of William Hoge & Co., which was dissolved over sixteen years ago, have become scattered and mislaid, and your petitioner does not know where to lay his hands on them, or to find them, and that even if they could be found, the contrary of which he believes, it will require time and trouble.”

      John E. Burrill, for the appellant.

      R. W. De Forest, for the respondent.
   Brady, J.:

The papers and letters, of which discovery is sought, are accounts rendered by the defendants as a firm, and letters written by them or the defendant Hoge, in reference to the subject-matter of the accounts. It is not alleged that the books from which the accounts were made, are lost or destroyed, or that there are no copies of the letters extant. It appears on the part of the petitioner, that the firm was dissolved many years since, and that there may be some trouble in getting its books and papers together, which, in consequence of the long time that has elapsed since the dissolution mentioned, have become scattered and mislaid — the petitioner not knowing “where to lay his hands on them, or to find them.” Assuming this to be true, it does not bring his application within the rules which govern such a procedure. These rules are admirably stated, and the cases collated, in Wait’s Practice. It is a fundamental requisite, that the remedy thus sought, should be indispensably necessary, and not simply a precautionary measure,

The nineteenth rule of this court, relating to the subject, provides that the party applying, shall show to the satisfaction of the court or judge, the materiality and necessity of the discovery sought, and is in accordance with the practice as settled by the adjudged cases. The necessity does not exist when the party applying may have in his possession, or under his control, the means of acquiring all the information which he seeks to obtain. The petitioner does not show that he is not thus situate. The accounts and letters emanated from him, and the former were predicate of books used in transacting the business of his firm, and he succeeded to them individually on its dissolution. Whether he would be able to find them upon diligent search, does not appear, nor does it appear that he has made the proper effort to find them. His application, therefore, assuming the materiality of the papers, which, it may be said, perhaps, has not been shown, is deficient in one essential element, and it was, for that reason, properly denied. If we look beyond his own statements, however, we find that his former bookkeeper saw the books containing the accounts and letters in his possession, in 1868, and that fact destroys much of the force of the allegation that the firm was dissolved many years since, and that the books and papers in consequence have become scattered. Where accounts have been rendered, and a litigation involving them springs up after the lapse of many years, it might be a just exercise of power to order their discovery in the due administration of justice, but, until the account is closed, it is the duty of the debtor to preserve, for ready use, his books and papers affecting it, that his defense may be made, and his obligations shown to have been discharged in whole or in part. The discovery is limited, however, by rules well established, and it would not be wise to depart from them, except, if at all, in a case of peculiar hardship, demanding the infraction of recognized principles.

It has not been deemed necessary to consider any other point than the one stated, namely, the insufficiency of the petitioner’s papers, for the reasons assigned. The order at Special Term was, for these reasons, right, and should be affirmed.

Davis, P. J., and Daniels, J., concurred.

Order affirmed.

      Vol. 2, p. 521, et passim.

      See Wait, supra, p. 532.