author: Lewis, J.:

text:
    Thomas Larkin, Plaintiff, v. The Village of Brockport, Defendant.

      State employee — when a village is a necessa/ry party to an agreement fixing his compensation — chapter 380 of the Laws of 1889, inapplicable to am, existing contract— right of one employee to employ another.

    When it is the province of the State to employ a person and the duty of a village therein to pay him for his services, the village is a proper and necessary party to an agreement with such person fixing the rate of his compensation, which may be fixed either by an express or an implied agreement.
    Chapter 380 of the Laws of 1889 has no application to a person who was at the time of its passage in the employ of a city under an implied contract that he should receive forty-five dollars per month for his services.
    Where an employee assumed to have his minor son assist him, without the knowledge and without the request of his employer, in doing work which he had himself agreed to do, he is not entitled to recover for the labor of his son.
    Cross-motions by tbe plaintiff, Tbomas Larkin, and by tbe defendant, Tbe Village of Brockport, for a new trial on a case containing exceptions, ordered to be beard at the General Term in tbe first instance, upon the verdict of a jury in favor of the plaintiff,, and upon the decision of the court dismissing the plaintiff’s second cause of action, rendered after a trial at the Monroe Circuit on the 15th day of May, 1891.

      George P. Decker, for the plaintiff.

      William F. Cogswell, for the defendant.
   Lewis, J.:

The bridge was constructed, and the Superintendent of Public Works, in the spring of 1888, appointed the plaintiff as-one of two men to operate it, they to alternate in the operation of the bridge and work twelve hours a day each. The village trustees, by resolution passed at a meeting of the board June 5, 1888, fixed the plaintiff’s compensation at forty-five dollars per month. He was informed of the adoption of the resolution, worked through the season, and accepted payment for his services from the village from month to month during that season at that rate.

In the spring of 1889, a few days before the opening of navigation, upon the canal (which that year was on the first of May), the Superintendent again appointed the plaintiff to attend the bridge.

The Superintendent testified: “ In the spring of that year I recollect the appointment of Thomas Larkin as bridge tender at Brock-port. He was appointed about the first of May. I couldn’t say just, the day. His appointment was to commence or take effect at the opening of navigation.

“ The canal opened that year the first of May, as I remember. * * * No arrangement was made between Larkin and me as te how much he was to receive per day, or what he should be paid for his services. Nothing was said about it, nor as to how long he should continue as bridge tender.”

On the 30th day of April, 1889, the board of trustees of the village passed a resolution fixing the plaintiffs compensation for the year 1889 at the same rate as for the previous year.

The plaintiff testified that: “Notwithstanding the fact that this was a hard-working bridge, and that I knew all about it, and that I knew that the village was paying $1.50 per day for the twelve hours’ work, I applied to the Superintendent for reappointment in the .spring of 1889. I was desirous of obtaining the job.”

The plaintiff presented to the defendant, during the time he was ■employed in the year 1889, monthly bills for his services in conformity to the requirements of the village ordinances, and received his pay monthly. There was stated in the bills the'number of days he had worked the preceding month, and the amoúnt of his compensation was computed at one dollar and fifty cents per day. He duly verified each bill by affidavit to the effect that the items of the account were correct as to the services ; that they were rendered for ■the village of Brockport.

On the 6th of June, 1889, an act of the- Legislature was passed, •the first section, of which is as follows: “ From and after the passage of this act the wages of day laborers employed by the State, or any -officer thereof, shall not be less than $2 per day; and for all of such .employed otherwise than day laborers, at a rate of not less than 25 .cents per hour.”

This act was pending in the Legislature at the time of plaintiff’s ■employment in 1889, of which fact he was then aware. Prior to ■the passage of the act, he had no communication personally with the board of trustees, nor with' any of its members individually, about the rate of wages he was to receive. He testified that after the passage of the act he talked with individual members of the trustees .about his wages; the particulars of the conversations are not stated in the record.

He made no demand upon the board, as such, for the increased wages mentioned in the act, but received his monthly payments as heretofore stated, at the rate of forty-five dollars per month. After fhe termination of his employment in the year 1889, he presented to the State Board of Claims a bill against the State for the difference between the amount he had received from the defendant and the wages fixed by the act of 1889. His claim was rejected by said board as not being a legitimate charge against the State; and he thereafter, in the year 1893, commenced this action against the ■defendant, claiming to recover at the rate of twenty-five cents per hour for twelve hours’ services per day, less the amount paid him by the defendant; and, in addition thereto, he claimed to recover, as a second cause of action, compensation for the services of his minor son as his assistant in operating the bridge during a part of the year 1889.

At the close of the evidence the defendant’s counsel asked for a nonsuit, upon the ground, among others, “ that plaintiff’s services were rendered under an implied contract to work for $45 per month, which could not be increased by chapter 380 of the Laws of 1889.”

The court denied defendant’s motion as to the first cause of action, and granted a nonsuit as to the second cause of action. The defendant duly excepted to the court’s refusal to grant a nonsuit as to the first cause of action, and requested the court to direct a verdict for the defendant on the first cause of action, which was denied, and an exception duly taken.

Plaintiff’s counsel thereupon asked the court to direct a verdict for the plaintiff for the sum of $279.30, which motion was denied, and the defendant’s counsel thereupon asked to go to the jury upon the question of waiver. The plaintiff’s counsel objected to the court entertaining the motion, on the ground that the defendant had waived its right to go to the jury by asking for a direction of a verdict in its favor. The objection was overruled. The court thereupon charged the jury. At the close of the charge the defendant’s counsel “ asked the court to charge the jury that if they find that the plaintiff performed the services under and in pursuance of a resolution of the board of trustees fixing the amount of wages of bridge-tenders at $45 per month, and presented his bills therefor to the trustees for payment, stating the amount due him at the rate fixed by said resolution, and said bills were paid in full for the time he worked, it constituted an ‘implied contract on his part which could not be affected by the subsequent act of the Legislature.

“By the court: I decline to vary my charge upon that'point. The defendant duly excepted.” Nothing had, in fact, been said in the charge upon the question of an implied contract. Defendant’s counsel again requested the court to charge the jury, that if they find the facts as stated in the foregoing request to find, “ it is for them to say whether the plaintiff did not work under an implied contract, and that if they find that he did, he cannot recover.” The court: “ If you find from the evidence that he worked and agreed to work for $45 per month, and that was all he was to receive, then he cannot recover any sum beyond that amount.” The defendant excepted to the refusal to charge as requested.

It being the province of the State to employ the plaintiff, and the duty of the defendant to pay him for his services, the defendant was a proper and necessary party to an agreement with the plaintiff fixing the rate of his compensation. It might be either an express or an implied agreement. There was evidence tending to show that there was an implied contract that plaintiff’s compensation for the year 1889 was to be at the rate of forty-five dollars a month. The question of an implied contract should have been submitted to the jury, unless the defendant waived the right to go to the jury by the request made by its counsel to go to the jury upon the question of waiver, which request was made previous to the charge to the juiy, and after his ineffectual effort to secure a direction of a verdict for the defendant upon the first cause of action stated in the complaint.

The request to go to the jury upon the question of waiver was objected to by the plaintiff’s counsel as stated, and the objection was overruled. It does not appear from the record that the defendant’s counsel asked to have any other question submitted to the jury previous to the charge; but after the conclusion of the charge he made the requests to chárge heretofore stated, the question of waiver and the requests to charge probably covered the same ground, but, if not, the refusal to charge as requested was not placed upon the ground that the defendant was estopped by the former request from having any other question submitted.

Whether there was an implied contract was an important and controlling question, and it should, we think, have been submitted to the jury.

If the work performed was under an implied contract that he should receive forty-five dollars a month, the law of 1889 had no application to the case. (Clark v. State, 142 N. Y. 101.)

The verdict for the plaintiff was for the sum of $278.30, being the difference between the amount of the services at twenty-five cents per hour and the amount received by the plaintiff from the defendant.

No employment of the infant son of the plaintiff for the year 1889 by the Superintendent was proven. That official seems to have insisted that the work of operating the bridge should be performed without an assistant, and when the plaintiff declined to do the work without the aid of an assistant he was discharged.

The Superintendent testified that he only appointed two men to operate the bridge. The plaintiff having assumed to have his son assist him in doing the work he had himself agreed to do, and that, so far as appears, without the knowledge and, as stated, without the request, of the canal officials, who were the -only persons having authority to employ laborers on the canal, the trial court, we think,, correctly held that he was not entitled to recover for his son’s labor.

The defendant did not employ the boy. The plaintiff testified that he talked with the president of the village about the necessity for a helper, but he does not say that the president authorized him to employ the boy; it does not appear that that officer had any authority to make such a contract. Defendant’s motion for a new trial should be granted, with costs to abide the event, and plaintiff’s motion for a new trial denied.

Dwight, P. J., Haight and Bradley, JJ., concurred.

Defendant’s motion for new trial granted, with costs to abide the event, and plaintiff’s motion denied.


source: Caselaw Access Project

license: Public Domain

text:
    James M. Earley, Appellant, v. St. Patrick’s Church Society of the City of Rochester, Respondent.

      Witness, who sees the execution of a m'iting hut does not sign it, iTicompetent to prove it — delivery of a satisfaction piece after death.

    ' The fact that a person was present and saw another sign his name to a satisfaction of judgment, if the person executing the instrument did not request him to become a subscribing witness thereto, and if he did not sign the instrument as a subscribing witness at that time, is not sufficient to qualify such person to prove the execution of such instrument as a subscribing witness.
    A satisfaction piece of a judgment is ineffectual if it is not delivered prior to the death of the person executing the same.

      Appeal by James M. "Welch, temporary administrator of the estate of James M. Earley, deceased, from an order of the Supreme Court, made at the Monroe Special Term and entered in the office of the clerk of the county of Monroe on the 4th day of August, 1891, denying his motion, for an order canceling the record of the satisfaction of a judgment.

      John Gh'iffin, for the appellant.

      George F. Dcmforth, for the respondent.
   Lewis, J.:

James M. Earley recovered a judgment in the Supreme Court on the 24th day of August, 1876, against the defendant for the sum of $15,068.49. On the 16th day of February, 1890, the said James M. Earley died, leaving a last will and testament, which was executed on the 7th day of December, 1889; executors were appointed by the will, proceedings for the probate of which were pending at the time of the making of the motion. During the pendency of said proceeding, and on or about the 29th day of May, 1891, the appellant was appointed temporary administrator of said estate.

During his last sickness, in anticipation of death, said James M. Earley, in the presence of his sister, Catharine Monaghan, wrote and signed a paper of which the following is a copy :

“ Hornellsville, N. Y., Feb. 10, 1890.
“ J. M. Earley, Rector:
“ I, the undersigned, do hereby discharge the judgment I hold against St. Patrick’s Church Society of Rochester, N. Y., and leave it entirely to the will and honesty of the officials of said church society to pay to the institutions named in my will and testament the sums named.
“(Signed) JAS. M. EARLEY.”

' The deceased, after signing said instrument, placed it in a sealed envelope and wrote thereon, “ To Sister Catharine, to be opened after my death, J. M. Earley,” and placed the instrument in a drawer in his secretary. Two days before his death he pointed to the secretary and stated to Sister Catharine Monaghan : “ There is a letter in that drawer addressed to you; after my death see to it, or attend to it.” .After his death, and before the funeral, Sister Catharine informed the Rev. M. J. Keene, one of the persons named as executor, that there was a letter in the drawer for her and she wished it. He, therefore, delivered the envelope unopened to her, and thereafter, and on the day of the funeral of said Early, she delivered the same to the Rev. M. Y. Gleason. She did not seethe envelope or paper again until the 31st day of January, 1891, on which day she signed her name to the instrument as a subscribing witness, and on the same day appeared before a notary public, and, after being duly sworn, deposed that she was present and saw the said James M. Earley sign and deliver the same as and for his act and deed and acknowledge the execution thereof, and that thereupon she became a subscribing witness thereto.

By the will the judgment in question was bequeathed to James Mooney of Buffalo, as trustee, with directions to him to pay out of the proceeds thereof to the defendant in said judgment $5,000 and the balance to other religious institutions.

It appears from the affidavit of Sister Catharine Monaghan that she was present and saw the deceased sign the discharge, but that he never requested her to become a subscribing witness to it, and that he never acknowledged it, and that she did not sign it as a witness until some eleven months after his death; that the envelope containing the discharge was placed by the deceased in his private drawer and remained there unopened until after his decease. Sister Catharine Monaghan was not, therefore, according to her own testimony, a subscribing witness within the meaning of the statute. Both of her affidavits used upon the motion negative any such claim. While she testifies that she was present and saw the deceased sign his name to the instrument he never requested her to become a subscribing witness to it. Such being the undisputed facts she was not qualified to prove its execution as a subscribing witness. Subdivision 3 of section 1260 of the Code of Civil Procedure provides that “the execution of each satisfaction piece or power of attorney must be acknowledged before the clerk, or his deputy, and certified by him thereupon; or it must' be acknowledged or proved, and certified, in like manner as a deed to be recorded in the county where it is filed.” To entitle a deed to be recorded it must be either acknowledged by the person executing it or proved by a subscribing witness thereto.

It was held in Hollenback v. Flemimg (6 Hill, 305) that a person who was present at the execution of an instrument, but who did not subscribe it at that time, but did so afterwards without the request of the person executing the instrument, was not an attesting witness.

Had the satisfaction piece been formally acknowledged or proven, it was still ineffectual for the discharge of the judgment, for there was a failure to prove its delivery to the defendant, the St. Patrick’s Church Society. As stated, the deceased executed the paper and retained possession of it during his lifetime. No one but himself knew of its contents until after his decease.

The affidavit of Sister Catharine Monaghan, made on the 30th day of June, 1891, gives a very natural and probable account of what occurred concerning the instrument two days before the death of Father Earley. She testified that he said to her: “ There is a letter in that drawer (pointing to the secretary) addressed to you; after my death see to it,” or attend to it; ” and that she did not have possession of it until after the death of Father Earley, and that then it was handed to her at her request by the Rev. M. J. Keene, one of the executors named in the will. It was, at the time, in the envelope unopened. This, manifestly, fell far short of showing a delivery of the discharge. 'Whether the account of the transaction, as stated by Sister Monaghan in her affidavit made on the twenty-first day of July thereafter, would tend to show a delivery of the instrument may be doubted, but we do not care to consider the question, for the reason that we are of the opinion that her recollection of the transaction, as stated in the first affidavit, is much more likely to be a correct statement of' the facts than that given in the second affidavit. It is quite improbable, as stated in her second affidavit, that she went through the form of taking the envelope containing the discharge out of the drawer and into her actual possession during the lifetime of the deceased. • There was no reason apparent to her why she should do so. She plainly stated in her first affidavit that she did not have it in her possession until after the death of Early.

It is suggested by respondent’s counsel that it was very proper for the court to deny the motion and leave the parties to litigate the questions in an action to be brought for the purpose of enforcing the judgment. We do not think the plaintiff should be embarrassed in tbe prosecution of such an action by tlie order of tbe Special Term under review.

The order appealed from should be reversed and the motion to set aside the satisfaction of judgment and cancel the record of the satisfaction thereof should be granted, with ten dollars costs and disbursements.

Dwight, P. J., concurred; Bradley, J., concurred in result; Haight, J., absent.

Order appealed from reversed and motion granted, with ten dollars costs and disbursements.


author: Bradley, J.:

text:
    William Kiernan, Individually and as Executor, etc., of James Kiernan, Deceased, and Another, Appellants, v. The Agricultural Insurance Company of Watertown, N. Y., and Another, Repondents.

      Insurance policy &emdash; condition therein forbidding the incumbrance of the insured of the condition as to part of the insured property &emdash; the policy is, not void as to the remainder.

    A policy of insurance, covering a house and the furniture therein respectively in specified amounts, contained a condition that the entire policy should be void "if the subject of insurance be personal property, and be or become incumbered by a chattel mortgage,” and, also, that “if the property, real or personal* covered by this policy be or become incumbered by a mortgage, trust deed, judgment or otherwise, this entire poliejr shall be void, unless otherwise provided.”

      Held, that by the incumbrance of a portion of the insured property the policy was only vitiated as to the incumbered property; that is to say, if the real property was incumbered, the policy as to that only was void, and -the same as to the personal property, or so much of it as was incumbered in the manner therein mentioned in violation of the condition in such policy contained.
    Reargument of an appeal by the plaintiffs, William Kiernan, individually, and as executor, etc., of James Kiernan, deceased, and ' ■ another, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Cattaraugus on the 29th day of September, 1892, upon the decision of the court, rendered after a trial at the Cattaraugus Special Term, dismissing the plaintiffs’ complaint.

      E. D. Eorthrwp, for the appellants.

      A. II. Sawyer, for the respondents.
   Bradley, J.:

By the policy in question the defendant corporation insured the plaintiffs against loss by fire on a dwelling house $2,000, and on certain personal property therein $300 ; also on other personal property specified amounts. The house and its contents were destroyed by fire.

The trial court determined that the insurance on the property covered by it was indivisible for the purposes of relief, and that the incumbrance placed upon such other personal property and the lien by judgment created upon the real property subsequent to the inception of the policy rendered it entirely void.

The judgment for the defendants was affirmed. (72 Hun, 519.)

Since then the affirmance by the Court of Appeals of the decision in Knowles v. American Ins. Co. (66 Hun, 220; 142 N. Y. 641) has furnished a reason for the reconsideration of this case.

There the divisibility of the insurance was held available to render it effectual as to a part of the property, although it was void as to the other portion of the property covered by it. By the policy in that case the insurance on a crop of hops of 1889 was $1,200 and on that of 1890 $800. It provided that the entire policy should be void “ if the subject of the insurance be personal property, and be or become incumbered by a chattel mortgage.” There'was such a mortgage upon the crop of 1889. Both crops were in the same hop house, and were destroyed by fire. It was held that the policy was void as to the crop of 1889, and valid as to the other. The question here is, whether in view of the doctrine of the Knowles case the trial court erred in dismissing the complaint. The contract of insurance contains the condition that the entire policy shall be void unless otherwise provided “ if the subject of insurance be personal property, and be or become incumbered by a chattel mortgage.” Also, that “ If the property, real or personal, covered by this policy be or become incumbered by a mortgage, trust deed, judgment or otherwise, this entire policy shall be void unless otherwise provided,” etc. Tbe former of these two provisions corresponds with that in question in the Knowles case. It was there construed to mean that the entire policy should be void as to the property so incumbered. The application of that rule of interpretation to the policy in the present case would seem to lead to the conclusion that it remained valid as to the insurance of $300 on the personal property in the dwelling house. It is true that the condition last before mentioned is somewhat broader than the other, as it relates to both real and personal property, and is applied to the policy in question. And while it may be so interpreted as to import that an incumbrance upon the real property would render the policy as a whole void, it is not, in view of the construction given to the other provision in the Knowles ease, necessarily entitled to such effect. But by it as well as by the other, the policy may be deemed vitiated only as to the incumbered property covered by it; that is to say, if the real property is incumbered the policy as to that is void, and the same as to the personal property, or so much of it as is incumbered in the manner therein mentioned, in violation of the condition. And thus the language employed does not take the contract out of the rule of construction applied to the policy in Merrill v. Agricultural Ins. Co. (73 N. Y. 452).

This meaning given to the term “ entire policy” was obviated in Smith v. Ins. Co. (118 N. Y. 518) by the more definite provision of the policy that “ If the property, either real or personal, or any part thereof, shall be incumbered * * * this entire policy and every part thereof shall be void.”

Upon the authority of the Knowles case the judgment should be reversed and a new trial granted, costs to abide the event.

Dwight, P. J., Lewis and Haight, JJ., concurred.

Judgment appealed from reversed and new trial granted, costs to abide the event.


text:
    Frank Skinner and Another, Appellants, v. John W. Hannan, Sheriff of Monroe County, and Frederick Odenbach, Respondents.

      ISjectment by the owner of an undivided interest — execution, how executed — when the court may direct a restoration to possession — rules of practice — power of the Supreme Com't as to the practice — Code of Civil Procedure, § 1311 — writ of restitution — supervisory power of courts of general jurisdiction — an order granted at a Special Term held with a Circuit.

    The execution issued upon a judgment in favor of the plaintiff, rendered in an action of ejectment brought to recover the possession of an undivided two-fifths part of real estate, is irregular if it directs the sheriff to put the plaintiff in possession of the entire property. As a joint owner he has the right to enter upon the possession of the property by virtue of such judgment, but his co-owner has an equal right to the possession thereof.
    Where a person was unlawfully deprived of the possession of real estate by an officer of the court, assuming to act under process of the court which was thereafter set aside, it is proper for such court, if it has jurisdiction of the parties, to direct such officer to reinstate such person in the possession of the
    • property in question.
    All the rules of practice are not contained in the Code of Civil Procedure and rules of the court. The Supreme Court possesses inherent power to adopt a practice or grant a remedy to meet the exigencies of a particular case, and to give effect to the provisions of the Code of Civil Procedure.
    The common-law and Chancery practice is not abolished, and the Supreme Court now possesses all the powers formerly exercised by the' old Supreme Court and the Court of Chancery, and section 1311 of the Code of Civil Procedure does not confer any new powers upon the court considered a$ a court of equity, nor does it impliedly prohibit the court from exercising a power in respect to real estate similar to that granted therein in regard to personalty.
    Courts of equity in exercising their equity jurisdiction over the execution of writs of possession sometimes award a writ of restitution where a defendant or even a stranger has been wrongfully eyicted under a writ.
    The courts of general jurisdiction have an inherent supervisory power over their process, and may quash, stay or set aside an execution whenever it is necessary to prevent or correct abuse thereof, according to the justice or equity of each particular case, and when the process of the court has been abused, and no innocent party has obtained rights under it, the court in setting it aside may restore what has been wrongfully seized thereundei'.
    Entertaining a motion and granting an order at a Special Term held in connection with a Circuit is a matter resting in the discretion of the court.
    Appeal by the plaintiffs, Frank Skinner and another, from an order of the Supreme Court, made at the Monroe Special Term and entered in the office of the clerk of the county of Monroe on the 17th day of May, 1894, vacating the injunction granted in the action, and directing that the defendant Odenbach be put into the possession of certain real estate.
    The complaint in this action alleged : That the plaintiffs were the owners in fee simple absolute, each of an undivided one-fifth of certain described premises.
    That on said premises was a hotel building called the Odenbach Hotel and some other buildings appurtenant thereto.
    That these plaintiffs were in actual possession of said premises and said hotel, and had been ever since the 3d day of May, 1894, having entered peaceably.
    That the defendant Frederick Odenbach and the defendant John ~W- Hannan, as sheriff of Monroe county, threatened to expel these plaintiffs from their possession of the said premises and from said premises by force and arms.
    The plaintiffs further alleged that they were not and neither of them was a party to any suit, process or proceeding in any court of the State of New York, in which, any order or process had been issued against them, and they were not privy to any person who was a party to any such suit. That these plaintiffs were in possession in their own rights as tenants in common. That the other tenants in common were Falding "W. Skinner and Louis Skinner, neither of whom were in possession of said premises. That the said Falding W. Skinner and Louis Skinner own the other three-fifths interest in said premises.
    The plaintiffs further alleged that the pretext for the threatened movement on the part of the defendants as above stated, was that some order has been made in an action in which Falding "W". Skinner was plaintiff and the defendant Frederick Odenbach was defendant. That they had no notice of the granting of any such order; that no such order liad been served upon them or either of them, and the court had no jurisdiction to make any such order, and if there was such an ordór it was absolutely void as to these plaintiffs and could not affect their rights, or afford any justification for the acts threatened by the defendants.
    That the defendants threatened to attack the house occupied by the plaintiffs, known as the Odenbach Hotel, and with a large body of people, the number of whom were unknown to the plaintiffs, and threatened to break into said house and drive the plaintiffs out therefrom, and to commit irreparable injury to the plaintiffs’ said premises and the plaintiffs’ rights, etc.
    Wherefore, the plaintiffs asked that the defendants and each of their agents, counselors, attorneys and servants be perpetually restrained from attacking the house aforesaid and driving the plaintiffs therefrom and doing the acts threatened as hereinabove mentioned, and that ¡lending this action they be temporarily restrained by an order of this court from interfering with plaintiffs’ possession of said premises, and that the plaintiffs have such other relief as may be agreeable to equity, besides the costs of the action.

      John Vcm VoorMs, for the appellants.

      Edward Harris, for the respondents.

       See page 315.

   Lewis, J.:

An action was brought in this court by one Falding W. Skinner against the defendant Odenbach to recover the possession of the undivided two-fifths of a parcel of land in the county of Monroe, upon which the defendant had constructed a hotel. The action was duly referred and the referee made his report in favor of the plaintiff. Immediately upon the receipt of the report, and without notice to the defendant, the plaintiff caused to be entered a judgment in said action adjudging that he was entitled to the possession of an undivided two-fifths of said premises, and he at once caused to be issued and delivered to the sheriff of Monroe county an execution directing him to put the plaintiff into possession of the whole of said premises. The judgment was entered and the execution issued on the 3d day of May, 1894. The sheriff, armed with the process, assumed to, and did, remove the defendant from the premises and placed the plaintiff in said execution in possession thereof, leaving, however, the furniture of the defendant in the hotel. The plaintiff in this action, claiming to be the owner of an undivided two-fifths of the said property, accompanied the sheriff and 'the plaintiff Falding W. Skinner to the premises and entered thereon in company with the sheriff, and thereupon asserted and claimed that they were in lawful possession to the exclusion of the defendant. As soon as Odenbach learned of the entry of the judgment he caused an appeal to be taken therefrom, and gave the undertaking required in such cases with sufficient sureties, and upon due notice obtained an order of the Special Term vacating and setting aside said execution and directing that the plaintiff, his agents and servants, and each and every person other than the defendant, who may have taken, or who may be in possession of said premises, or any part thereof, immediately vacate the same and permit the defendant to occupy them unmolested pending the appeal taken to the General Term, and restraining the sheriff from taking further proceedings under the execution pending such appeal, and directing him forthwith to reinstate the defendant in possession of the premises and remove therefrom each and every person, other than the defendant, who might be in possession of the same, or any part thereof. An appeal was taken by the plaintiff from said order, but in no manner was the execution thereof stayed. The defendant sought to regain possession of the property under this order.

The plaintiffs in this action still remained in the hotel and refused to surrender possession thereof, and thereupon they commenced this action to restrain the defendants from in any manner attempting to regain possession of the property, and obtained from the special county judge of Monroe county an order in said action restraining the defendants or their agents from in any manner interfering with the plaintiffs’ possession of the premises. At a Special Term of this court held in connection with a Circuit in the county of Monroe, an order was granted upon due notice vacating and setting aside said order made by said special county judge, and from the order thus made this appeal was taken. The order further directed the sheriff to fully execute an order theretofore granted in the ejectment action, and restrained the plaintiffs and their attorneys from in any manner interfering with the execution of that order.

The principal question presented by this appeal is whether the court had the power to include the provision in said order relating to the dispossessing of the plaintiffs in this action. The order was granted upon the return of an order to show cause, which recited that it was granted upon the affidavits of the defendant and his counsel, Edward Harris, and all the papers and proceedings referred to in the affidavits, both in this action and those used ujion the motion in the ejectment action. It was stated in the affidavit of the defendant that the only possession the plaintiffs obtained of the premises they got by means of the execution aforesaid and by the acts of the sheriff thereunder. This was not denied by the plaintiffs’ affidavits. The court had the right to assume from these facts that the plaintiffs’ possession was obtained by their accompanying the sheriff when he went with the execution to place the plaintiff therein in possession of the premises, and they entered the premises by the consent of the sheriff and under his protection. The defendant being in possession of the property, claiming to be the owner thereof, was entitled to remain, notwithstanding the judgment, for that, as we have seen, was for but the undivided two-fifths of the premises.

The execution was irregular in so far as it directed the sheriff to put the plaintiff in possession of the entire property. While, as joint owner with the defendant, he had the right to enter upon the possession of the property by virtue of his judgment, the defendant had an equal right to the possession. The defendant having been unlawfully deprived of the possession of the premises by an officer of the court, who had assumed to act under a process of the court which was thereafter set aside, so much of the order as directed the sheriff to reinstate the defendant in the possession of the property was unquestionably proper. It would be strange indeed if a court was powerless to restore to the defendant that which he had been deprived of in such manner. Had his undertaking been given before the sheriff had placed the plaintiff in possession of the property, he would have been entitled to retain possession during the pendency of the appeal. (§ 1331, Code Civ. Proc.) It maybe true that there is no provision of the Code of Civil Procedure, nor rule of the court, expressly providing for the granting of the order for restoring possession to the defendant, but it does not follow that the court had no power or jurisdiction to grant 'the order. All the practice is not contained in the Code and rules. The court possesses inherent power to adopt a practice or grant a remedy to meet the exigencies of a particular case, and thus give effect to the provisions of the Code. (Stricker v. Wakeman, 13 Abb. Pr. 85.) The common-law and Chancery practice is not abolished. (Mut. Life Ins. Co. v. Bigler, 79 N. Y. 571; Granger v. Craig, 85 id. 619; Hastings v. McKinley, 8 How. Pr. 175.) Section 1311 of the Code provides for the discharge of a levy on personal property. Where a judgment is set aside for any reason, the court will award restitution under the common-law practice. (Adams on Ejectment, § 225 and notes.) The Court of Chancery assumed the power to supersede executions, and discharge levies and restore property to the appellant. (Clark v. Clark, 7 Paige, 607.)

In the latter case the defendant had appealed and given an undertaking, but on account of an informality it did not stay the execution, and the plaintiff issued an execution and levied, and upon the bond being perfected, the Court of Chancery superseded the levy and directed the sheriff to restore the property to the defendant, and this was done in the absence of any express provision of the statute or rules authorizing it, the court assuming the right under its equitable power over its own process. The Supreme Court how possesses all the powers formerly exercised by the old Supreme Court and the Court of Chancery. Section 1311 of the Code does not confer any new powers upon the court, considered as a court of equity; hence, no argument can be derived from it that it impliedly prohibits the court from exercising a similar power in respect to land. Instances are numerous where the courts have applied equitable principles and rules to purely legal actions; and the fact that the common-law courts disclaim the power to act in such cases is no reason why the court is prevented from exercising its equity powers.

The plaintiffs in this action having obtained possession in the manner they did, and, in effect, forcibly ejecting the defendant from the possession of the property, illegally assuming to avail themselves of the authority of a process which gave no such authority, the Special Term having jurisdiction of the parties did not, we think, exceed its equitable powers when it directed the sheriff to reinstate the defendant in the possession of the property and remove the plaintiffs therefrom.

Courts of equity, in-exercising their equity jurisdiction over the executions of writs of possession, sometimes award a writ of restitution where a defendant, or even a stranger, has been wrongfully evicted under a writ. (Sedgwick & Wait on Trial of Title, § 60.) The writ of assistance is the equitable equivalent of the common-law writ of ejectment. (Id. 548.) The courts of general jurisdiction have an inherent supervisory power over their process and may quash, stay or set aside an execution whenever it is necessary to prevent or correct abuse thereof, according to the justice or equity of each particular case. (7 Am. & Eng. Ency. of Law, 148.) When the process of the court has been abused, and no innocent party has attained rights. under it, the court, in setting it aside, may restore what has been wrongfully seized thereunder. (Compau v. Coates, 17 Mich. 235.) In this case, however, judgment was set aside. The same doctrine was held in Keith v. Wilson (3 Metc. [Ky.] 204).

While we have no hesitation in holding that the order, so far as it set aside the injunction order, and directed the sheriff to reinstate the defendant in possession of the property, was properly granted, it is not so clear that the court had power to direct the removal from the premises of the plaintiffs.

Entertaining the motion and granting the order at a Special Term held in connection with a Circuit was a matter in the discretion of the court.

Falding W. Skinner, not being a party to the action in which the order appealed from was granted, the court did not have jurisdiction to direct his removal.

The order appealed from should be so modified as to limit its operation to the vacation of the injunction and the restitution of the defendant to the possession of the undivided three-fifths of the premises, and, as so modified, it should be affirmed, without costs of this appeal to either party.

Dwight, P. J., Haight and Bradley, LL, concurred.

Order appealed from modified so as to limit its operation to the vacation of the injunction and the restitution to the defendant Odenbach of an undivided three-fifths of the premises in question, and, as so modified, affirmed, without costs of this appeal to either party.


author: Brown, P. J.:

text:
    The People of the State of New York ex rel. The Oppenheimer Publishing and Printing Company, v. George Pople, as Supervisor of the Town of Flushing, and Others, Composing the Board of Town Auditors of the said Town of Flushing, Queens County.

      Auditing of a claim by a town hom'd of auditors — the hom'd is not confined to the claimants estimate — presumption as to its knowledge — review of an award.

    In the examination and auditing of the items of a claim presented to a town hoard of auditors, and in fixing and allowing a sum therefor, the hoard is not necessarily confined to the claimant's estimate of the value of the work, and it may he presumed that a town hoard of auditors has some knowledge as to the prices ordinarily charged and paid for printing ballots and election supplies.
    A town hoard of auditors, in auditing a claim presented to it, acts judicially, and while the court has the power to review its decision upon the facts, its judgment should not he overruled unless it is clear that it has erred.
    Certiorari issued out of the Supreme Court and attested on the 19th day of June, 1894, directed to George Pople, as supervisor of the town of Flushing, and others, composing the board of town auditors of the said town of Flushing, Queens county, commanding them to certify and return to the office of the clerk of the county of Queens their proceedings, decisions and actions relative to the auditing of the claim of the relator, The Oppenheimer Publishing and Printing Company, against the town of Flushing, showing why they unjustly audited and reduced the claims presented by the relator, and why they disallowed and refused to audit certain claims presented by the said relator to such town for payment.

      John J. Gleason, for the relator, appellant.

      A. IV. Weller, for the respondents.
   Brown, P. J.:

This proceeding, is a certiorari to review the action of the board of town auditors in auditing and allowing the claim of the relator.

The claim was for printing ballots and other necessary supplies-for the town election held in April, 1893.

The ballots were printed under a special contract for three dollars and forty cents per thousand, and the total amount charged for that work was not in dispute, and was allowed as it was stated in the bill.

The other supplies were grouped under thirteen different heads, and the amounts charged were in each instance materially reduced by the board of audit. The only question before us is whether the board should have allowed the claim at the sums charged for the work.

It does not appear from the papers before us that there was any oral testimony before the auditors as to the reasonable value of the service, or the prices generally paid for such work.

The bill when presented was verified by the treasurer of the relator. His affidavit stated that the account was correct; that the services had been rendered, and that no part thereof had been paid. The return states that, upon presentation of the bill, the relator was informed by the board of audit that it regarded the charges as excessive, and that it would hear the claimant upon the items of the bill; that the claimant’s president appeared before the board and produced samples of the work, and argued in support of the charges. He was not sworn, nor did he produce any witness as to the value of the work, and the claim was, therefore, submitted to the board.

"We are of the opinion that the action of the board must be sustained. They examined and audited each item of the account, and, in fixing the sum allowed, they were not necessarily confined to the claimant’s estimate of the value of the work.

It was said in People ex rel. Cochran v. Town Auditors of Pel ham (74 Hun, 83) that “it is thé habit of such bodies to seek information from any quarter where it is obtainable, and we presume the practice is legitimate. * * * They may act upon their own knowledge acquired by observation.” And it is a fair presumption that the respondents had some knowledge as to the prices ordinarily charged and paid for printing ballots and election supplies.

And there was in the facts before the board evidence which sustains the conclusion that some of the charges were excessive. The contract price for printing the ballots was three dollars and forty cents per thousand, but for printing sample ballots the relator had charged nearly four times that amount.

No explanation appears in the appeal papers for this very material increase in the cha2-ges, although the learned counsel for the relator made one upon the argument; but the facts wei’e for the consideration of the auditors, and we cannot intei'fere with their judgment.

Samples of the work are contained in the appeal book, and in many instances the charges appear to us to be excessive.

The respondents, in auditing the claim, acted judicially; and while we have the power to review their decision upon the facts, their judgment should not be overruled unless it is clear that they have erred.

"We are satisfied in this case with their conclusion, and their award should be sustained.

Dykman and Cullen, JJ., concurred.

Award affirmed, with costs.


text:
    William W. Kirby, Appellant, v. Charles R. Colwell and Another, Respondents.

      Warrant of attachment — vacation of — the existence of a cause of action should not bexlecided on affidavits.

    When, upon a motion to vacate a warrant of attachment granted in an action, the only question presented relates to the existence of the plaintiff’s alleged cause of action, and such question is one of fact and not of law, it should not he decided upon affidavits, hut he left to he determined at the trial, and the attachment should not he vacated.

      Appeal by tbe plaintiff, William W. Kirby, from an order of tbe Supreme Court, made at tbe Kings County Special Term and entered in tbe office of tbe clerk of tbe county of Kings on tbe 4th day of June, 1894, granting tbe defendants’ motion to vacate and set aside a warrant of attachment granted against tbe property of tbe defendants.

      John Sabine Smith, for tbe appellant.

      Philo P. Safford, for tbe respondents.
   Brown, P. J.:

Tbis action was brought to recover for alleged services rendered by tbe plaintiff for tbe defendants.

Tbe defendants were residents of the.State of New Jersey, and, upon that ground, an attachment was granted.

Tbe motion to vacate the attachment was based solely upon the ground that the plaintiff bad no cause of action against tbe defendants, and tbe affidavits presented to tbe court in support of that motion denied tbe making of tbe contract or tbe rendition of tbe services which were tbe basis of the plaintiff’s claim.

Tbe plaintiff read affidavits in support of bis claim, and upon all tbe papers tbe merits of tbe plaintiff’s claim was seriously in dispute.

The learned judge presiding at the Special Term decided the matter in issue in favor of tbe defendants and vacated tbe attachments.

We are of opinion that when, upon a motion of tbis character, tbe only question presented relates to tbe existence of a plaintiff’s alleged cause of action, and is one of fact and not of law, it should be left for determination at tbe trial, and should not be decided upon affidavits.

Such is tbe rule stated in Lowenstein v. Salinger (42 N. Y. St. Repr. 414); Brown v. Wigton (18 N. Y. Supp. 490); Johnson v. Hardwood Door, etc., Co. (79 Hun, 407).

In this case there is no dispute as to tbe non-residence of tbe defendants, and they have appeared in the action solely for tbe purpose of moving to vacate the attachment.

If that is set aside the plaintiff will be denied tbe right of a trial in tbe courts of bis own State, and will be compelled to abandon his suit or renew it in a foreign jurisdiction. The cause of action set out in his complaint is 'Supported by his own oath and by other competent evidence. Under the laws of the State he is entitled to a trial by jury, and he should not be deprived of that right unless the facts presented to the court in relation to his claim are undisputed and the legal conclusion to be drawn therefrom certain.

The order should be reversed, with ten dollars costs and disbursements, and the motion denied, with costs.

Oykman and Cullen, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied, with costs.


text:
    In the Matter of the Petition of William C. Camp for an Accounting by Calvin B. Camp, as his Guardian, etc. In the Matter of the Petition of Mary Ella Camp for an Accounting by Calvin B. Camp, as her Guardian, etc. In the Matter of the Petition of Julia Adelaide Camp for an Accounting by Calvin B. Camp, as her Guardian, etc.

      Special proceedings — revival thereof by or against an executor of a deceased party — in a Surrogate’s Court — • Code of Civil Procedure, §§ 755, 757, 3347.
    The right to revive and continue pending undetermined special proceedings, in the name of or against the executors or administrators of deceased parties, depends entirely upon statutory authority.
    The application of sections 755 and 757 of the Code of Civil Procedure is limited by subdivisions 6 and 4 of section 3347 thereof, and they do not relate to proceedings in Surrogates’ Courts; notwithstanding the amendment of such sections in 1891, they are still subject to the limitation of section 3347.
    Appeal by Nelson Cross, an executor, etc., of Calvin B. Camp, deceased, from an order of the Surrogate’s Court of Kings county, entered in the office of the clerk of the Kings County Surrogate’s Court on the 13th day of November, 1893, continuing the first-above-entitled proceeding against the appellant.
    Like appeals were taken by the petitioners Mary Ella Camp and Julia Adelaide Camp.

      W. O. Beecher, for the executor, appellant.

      F. B. Jennm.gs, for the petitioners, respondents.
   Brown, P. J.:

During the pendency of the above-entitled proceeding, and after. his accounts had been filed, the guardian died.

The proceeding was revived against the guardian’s executor, and the order of the surrogate is sought to be sustained under sections 755 and 757 of the Code of Civil Procedure. Prior to 1891 there was no authority for continuing a pending undetermined special proceeding in the name of an administrator or executor. (In re Palmer, 115 N. Y. 493.)

The right to revive and continue sirch proceedings in the name of or against executors or administrators of deceased parties depends entirely upon statutory authority.

The sections of the Code referred to do not relate to proceedings in Surrogates’ Courts. Their application is limited by subdivisions 6 and 4 of section 3347 of the Code, which provides that chapter 8, which includes sections 755 and 757, applies, with certain exceptions not material on this appeal, to actions and special proceedings commenced in the Supreme Court, a Superior City Court, the Marine Court of the City of New York, or a County Court.

The fact that the sections relied upon to support the order were amended in 1891 does not make them applicable to all special proceedings. In their amended form they are still subject to the limi tation of section 3347.

The order of the surrogate is not, therefore, supported by any statutory authority, and must be reversed, with costs.

Dykman and Cullen, JJ., concurred.

Orders reversed, with ten dollars costs and disbursements.


author: Dykman, J.:

text:
    In the Matter of the Petition of James Moore, Appellant, for Leave to Sue The Anglo-American Dry Dock and Warehouse Company, Respondent. Samuel K. Probasco, Plaintiff, v. The Anglo-American Dry Dock and Warehouse Company, Defendant. Thomas Cochran and Another, Plaintiffs, v. The Anglo-American Dry Dock and Warehouse Company and Others, Defendants.

      Action on the bond, pending a mortgage foi'eclomre — Oode of Qivil Procedure, § 1628 —- application for an order thereunder — when it should, be denied.

    Section 1628 of the Code of Civil Procedure shows an intention on the part of the Legislature to place a restriction upon the holders of bonds secured by a mortgage which is in process of foreclosure, and unless cogent reason is presented for the granting of an order of the court under such section, granting leave to a bondholder to commence an action on his bonds during the pendency of an action brought to foreclose the mortgage securing the same, an application for such an order should be denied.
    Appeal by the petitioner, James Moore, from an order of the Supreme Court, made by a justice of the Supreme Court at Chambers and entered in the office of the clerk of the county of Kings on the 30th day of August, 1894, denying the petitioner’s motion for leave to sue The Anglo-American Dry Dock and Warehouse Company upon two of its second mortgage bonds.

      Everett P. Wheeler, for the appellant.

      Luoien Birdseye, for the respondent.
   Dykman, J.:

This is an appeal from an order made at the Special Term denying the petition of James Moore for leave to sue The Anglo-American Dry Dock and Warehouse Company.

The petitioner is the owner of two bonds for $1,000 each, issued by the company. They are part of an issue of 500 bonds of $1,000 each; all of the valid bonds of this issue are secured by second mortgage of Thomas Cochran and William W. Flannagan. In 1891 an action was commenced to foreclose this mortgage, and that action is still pending. A protracted litigation ensued respecting the validity and consideration of many of the bonds. The judgment entered was reversed in part by the General Term, and a new trial was ordered before the referee.

The motion is based upon section 1628 of the Code of Civil Procedure, which is as follows: "While an action to foreclose a mortgage upon real property is pending, or after final judgment for the plaintiff therein, no other action shall be commenced or maintained' to recover any part of the mortgage debt without leave of the court in which the former action was brought.” This statute manifests the intention of the Legislature to place a restriction upon holders of bonds secured by a mortgage which is in process of foreclosure, and unless a cogent reason is presented for the action of the court under that section it should be denied.

In this particular case our conclusion is that all the bondholders should abide the result of the foreclosure suit, and that the order appealed from should be affirmed.

Brown, P. J., and Cullen, J., concurred.

Order affirmed, with ten dollars costs and disbursements.


text:
    The People of the State of New York, Respondent, v. Stephen C. Duryea, Appellant.

      Seduction — a promise conditional upon pregnancy is not sufficient to bring a case within section 284 of the Penal Code.

    To tiring a case within tlie provisions of section 284 of the Penal Code the promise of marriage must he the inducement to and must exist at the time of the act of sexual intercourse, and it is not sufficient if the promise is conditional upon pregnancy.
    Appeal by the defendant, Stephen O. Duryea, from a judgment of the Court of Sessions, held in and for the county of Suffolk, rendered on the 9th day of December, 1893, convicting him of the crime of seduction under promise of marriage.

      John R. Reed, for the appellant.

      Walter JJ. Jay cox, District Attorney, and E. N. Ca/rpenter, for the People.
   Brown, P. J.:

The appellant was convicted at the Court of Sessions of Suffolk county of the crime of seduction under promise of marriage. The indictment charged that the crime was committed in February, 1890, upon one Addie Oakley. .

Upon the trial the complainant’s testimony as to the promise of marriage was as follows: “ He asked me to have connection with him. I told him no; I would not let him. I never let any man and I would not let him. He said, ‘Addie, I promise you faithfully that I will marry you.’ I never answered him. He asked me again. He said again, ‘ Addie, I promise you faithfully I will marry you if I get you in trouble. After that I gave in.” ,

The testimony of the complainant given before the convicting magistrate was read in evidence by the defendant to the effect that the promise of the defendant was that if she should become pregnant he would marry her, and that she did not remember of him making any other promise. It appeared also that she told her father that the defendant had promised to marry her- “ if he got her into trouble.” The court refused the defendant’s request to charge the jury that, if they found that the promise to marry was conditional upon the complainant’s becoming pregnant they must acquit, and the exception to this refusal presents the only question necessary to be considered upon this appeal.

Under the charge of the court we must assume that the jury may have found that the promise to marry was conditional upon the complainant becoming pregnant. It is very questionable, I think, whether the testimony permitted them to find any other promise, but assuming, as 'it is claimed by the prosecution, that it did, the question is presented whether such a conditional promise is sufficient to bring the case within the statute.

The crime is defined as follows: “ A person who, under promise of marriage, seduces and has sexual intercourse with an unmarried female of previous chaste character is punishable,” etc. (Penal Code, § 284.)

The case relied upon to support the conviction is that of People v. Hustis (32 Hun, 58). So far as I am informed this is the only authority that sustains this view of the statute. The decision was by a divided court, and the correctness of the conclusion therereached was questioned in People v. Van Alstyne (78 Hun, 509).

The prevailing opinion in People v. Hustis is based upon the assumption that the question had been decided by the Court of Appeals in Kenyon v. The People (26 N. Y. 203), and Boyce v. The People (55 id. 644). In those cases the promise testified to was that the accused would marry the, prosecutrix if she would consent to have connection with him, and neither case presented the question of a promise conditional upon pregnancy. The distinction between the two promises is apparent. In the case of a promise conditional upon immediate intercourse, the condition is performed at the moment of the sexual act, and the promise to marry becomes absolute at once. Seduction in such a case is clearly accomplished under a promise to marry. In the case of a promise conditional upon pregnacy, there is no absolute promise at the time of the seduction and the condition is such that there may never be any. It is impossible to have seduction under a promise to marry when the only promise at the time of the seduction is one depending upon an event that may never occur.

To bring a case within the statute the promise of marriage must be the inducement to and must exist at the time of the act of sexual intercourse. The case of People v. Hustis has no support in the ■authorities cited to sustain it and should be overruled.

The exception referred to was well taken and the judgment must be reversed, and there must be a new trial.

Dtkman and Cullen, JJ., concurred.

Judgment reversed and a new trial granted.


text:
    James M. Stilwell, Appellant, v. Benjamin W. Stilwell, Respondent.

      Offer to allow judgment to be taken — acceptance thereof — contract made thereby cannot be modified by the court — when the contract is executed.

    An offer served by the defendant in an action to allow the plaintiff therein to take judgment against Mm for a specified sum, together with the acceptance thereof; constitutes a contract which the court cannot set aside upon motion. The court is also powerless to order or frame an amendment of the judgment or offer, which would operate to change the contract, without the consent of both parties.

      The contract made, by the service on the plaintiff in an action of an offer to allow judgment to be taken against the defendant, and the acceptance thereof by the plaintiff, requires the agreement of both parties to make it effectual; it becomes executed when the judgment entered upon the offer and the acceptance is fully paid and satisfied.
    Appeal by the plaintiff, J ames M. Stilwell, from an order of the Supreme Court, made at the Dutchess Special Term and entered in the office of the clerk of the county of Westchester on the 20th day of January, 1894, directing that the judgment and offer of judgment in the action be amended so as to reduce the amount thereof $200.

      Ralph E. Prwie, for the appellant.

      John F. Bremiam,, for the defendant.
   Dykman, J.:

This is an appeal from an order amending the defendant’s offer •of judgment and the judgment entered on such offer, and the ■acceptance thereof.

The complaint in the action alleges that in June, 1875, the grandfather of the plaintiff deposited in the Yonkers Savings Bank '$1,500 in the name of Benjamin W. Stilwell, in trust for James M. Stilwell, the plaintiff, and delivered the bank book to the defendant in trust for the plaintiff, and the defendant agreed to hold the book, money, funds and accumulations for the plaintiff; and the understanding was that the money was to constitute a fund whereby the plaintiff would be enabled to build on lands which the grandfather would thereafter give to the plaintiff, and that the principal and accumulations of interest would be paid to the plaintiff when he should arrive at full age; that the plaintiff did arrive at full age on the 8th day of February, 1893, and that thereafter the plaintiff requested, and also demanded the money from the defendant,- and he refused to pay it over.

This suit was then commenced, and the defendant answered on May 24, 1893, and the next day served a written offer to allow judgment against him for $3,252.60, and interest at four per cent and ■costs, which offer was accepted the same day.

Judgment was entered on the offer and acceptance. The defendant, after the acceptance of the first offer, discovered what he ■claims was a mistake, and served a second offer for $100 less than the first, claiming a mistake in that amount, with notice of withdrawal of the first offer. Plaintiff’s attorney then served a notice that the first offer, having been accepted, could not be withdrawn, and calling upon the attorney for the defendant to move promptly for the relief to which he might deem himself entitled. _ The defendant did not move, and the plaintiff then made a motion at the Special Term, and after a hearing thereat, an order was made setting aside the service of the first offer unless the plaintiff should stipulate to reduce the judgment by $100, and granting costs of motion to the-plaintiff.

The stipulation to reduce the judgment was made and filed. The defendant paid the judgment June 3, 1893, and in J uly thereafter claims to have discovered this mistake in the offer, but made no motion to correct it or to obtain any relief until the middle of December, 1893, and then made a motion at the Special Term to-amend the offer and judgment so as to reduce the amount $200’ beside the $100 deducted by the stipulation already mentioned, and: such an order was made. The plaintiff has appealed from that order, and in our view it was erroneous.

The offer and acceptance constituted a contract which the court could not set aside on motion. It was equally powerless to order or frame an amendment that would operate to change the contract, without the consent of both parties. The contract made by the-offer and acceptance by the parties required the agreement of both: parties to make it effectual.

The contract became executed when, in the month of J une, 1893, the judgment upon the offer and acceptance was fully paid and satisfied.

It is unnecessary to decide here what course should have been-pursued on the part of the defendant in case an error had crept into his offer, but the order of the Special Term compelled the-defendant to deduct $200 besides the $100 deducted by the stipulation which the plaintiff made. That is plainly erroneous, and the-order should be reversed, with ten dollars costs and disbursements.

Brown, P. J., and Cullen, J., concurred.

Order reversed and motion denied, with ten dollars costs and: disbursements.


author: Willard Bartlett, J.:

text:
    Daniel Moynahan, Respondent, v. James W. Birkett, Appellant, Impleaded with Others.

      Public contract — prices specified, and no bids received, for extra wor7c — implied obligation to pay for vooric done for a county.

      A clause in a contract, let by tbe board of supervisors of a county to the lowest bidder under the provisions of chapter 230 of the Laws of 1884, declared that proposals and contracts must be' understood to include and cover in full all the several parts and appurtenances of the structure in question, so as to make a complete and finished work on the location established for the’same, and for its complete use and operation, precluding all claims for extra work. It also provides that additional payments may become due and payable for extra work done in obtaining stable foundation, or for materials required to form necessary artificial foundations, or on account of incidental or supplemental modification of the plans, locations and grades ordered by the proper authority, “ For such extra work the contractor will be paid the following prices.” Thereafter followed the enumeration of certain specified Muds of work at certain specified prices to be paid therefor.

      Held, that the effect of such provision was to do away with all competition whatever between bidders so far as the extra work was concerned;
    That the prices to be paid for extra work should have been arrived at as the result of competitive bidding, instead of being fixed in advance by the public authorities; , .
    That such clause was illegal, and in an action brought by a taxpayer the county treasurer of the county in which the work was done should be enjoined from paying the contractor the amount claimed by him, for extra work done pursuant to the provisions of such clause, at the rate therein specified.

      A contractor agreed to do all the work of regulating, grading, curbing, guttering and macadamizing the roads at a certain specified place, and the quantities mentioned in the contract were only the estimates of the public authorities.

      Meld, that, if the contractor was obliged in the execution of the work to furnish any material of the same kind, beyond the specified quantities, the obligation on his part implied a corresponding obligation on the part of the authorities to pay him for the material so furnished.
    Appeal by tlie defendant, James W. Birkett, from an order of tbe Supreme Court, made at tbe Kings County Special Term and entered in tbe office of tbe clerk of tbe county of Kings on the 10th day of August, 1894, enjoining and restraining the treasurer of Kings county from paying to said Birkett tbe amount of certain claims mentioned in said order.

      James Troy, for the appellant.

      Sa/nders Shcmks, for the respondent.
    Present — Brown, P. J., Dykman and Cullen, JJ.
    Order affirmed, with ten dollars costs on the opinion of Special Term.
   The following is the opinion of the Special Term:

Willard Bartlett, J.:

On February 1, 1893, the board of supervisors of Kings county entered into a contract with James W. Birkett, whereby Mr. Birkett agreed to furnish certain materials and' do certain work at the county farm, at Kings Park, L. I., at prices which were specified in the body of the contract.

The law providing for the establishment of the'county farm ‘requires the board of supervisors to advertise for proposals for the erection of the buildings and for the other improvements there, and to award the contract to the lowest responsible bidder or bidders. (Laws of 1884, chap. 230, § 3.)

This provision was obeyed in reference to Mr. Birkett’s contract, so far as the work was concerned which was mentioned in the contract itself, as distinguished from the specifications.

The contract, however, refers to two sets of specifications. One set is known as general specifications B, and is expressly made a part of the agreement.

Clause 37 of specifications B relates to extra work. It declares in the first place that proposals and contracts must be understood to include and cover in full all the several parts and appurtenances of such structure so as to make a complete and finished work on the location established for the same, and for its complete use and operation, precluding all claims for extra work; but it goes on to provide that additional payments may become due and payable for extra work done in obtaining stable foundation, or for materials required to form necessary artificial foundations, or on account of incidental or supplemental modification of the plans, locations and grades ordered by the proper authority. “ For such extra work,” says this clause, “ the contractor will be paid the following prices: For earth excavation, 25 cents per cubic yard. For excavation of foundations, including all necessary draining and bailing, 45 cents per cubic yard. Eor spruce or hemlock sheathing and shoring which may be ordered left in the ground, thirty-five dollars per thousand feet, board measure. For each cubic yard of rubble masonry, eight dollars. For each cubic yard of concrete, five dollars. For each cubic yard of brick masonry, twelve dollars.”

The effect of this provision is to do away with all competition whatever between bidders, so far as extra work in concerned. The board of supervisors practically say to contractors who contemplate bidding in response to their invitation for proposals: “We will award the contract to the lowest responsible bidder for the work to be mentioned in the body of the contract; but if any extra work proves necessary, we will pay for it at the rates fixed in clause 37 of specifications B.” In other words, they construe the statute as requiring a letting of the work to the lowest bidder only with reference to the main portion of a contract and not at all with reference to the extra work.

I think this is an erroneous construction. In order to carry out the true purpose and intent of the statute, it is the duty of the board to endeavor to get all the work under a contract, whether it be the principal part of the undertaking or additional labor which may be requisite, done at the lowest price at which a responsible person will agree to do it. If extra work is contemplated as likely to be needed,, then the competing contractors should be invited to bid for that, as-well as for the main work. The figures placed in clause 37 of specifications B, as the prices to be paid for extra work, should have been arrived at as the result of competitive bidding as were the figures in the body of the contract, instead of being fixed in advance by the public authorities.

The present action is a taxpayer’s suit brought to prevent the payment to Mr. Birkett of three items which he claims under the contract in question. These items are, $17,100 for 38,000 cubic yards of sewer trenching, $32,725 for 935,000 feet of sheathing, and $25,401.42 for 12,829 square yards of granite pavement.

Mr. Birkett asserts that sewer trenching is the same thing as the excavation of foundations mentioned in clause 37 of specifications B, and that the sheathing is covered by the same clause. Assuming that he is right, the objection still remains that the board of supervisors undertook to make this part of the contract without reference to the statutory requirement that the work should go to the lowest responsible bidder. Their action in so doing was in disregard of the law, as it seems to me, and hence he cannot be entitled to payment for the additional work mentioned in these two items at the rates fixed in clause 37.

In reference to the item of granite pavement, the case is different; gutters were mentioned in the main body of the contract, and Mr. Birkett’s affidavit shows that the granite pavement was merely •additional guttering which proved necessary and for which he •charges at the same rate as he bid. The specifications declared that ithe schedules of quantities upon which the bids were based were ■approximate, as near as could be determined in advance. The ■agreement of the contractor was to do the whole work of regulating, grading, curbing, guttering and macadamizing the roads at the county farm. As in the case of Sullivan v. President of Sing Sing (122 N. Y. 389), the quantities mentioned in the contract were ■only the estimates of the municipal authorities, and if more material .of the same sort was needed in any instance, the contractor was bound to furnish it. This obligation on his part implies the corresponding obligation on the part of the authorities to pay iiim for the material so furnished.

My conclusion is, that the clause in the contract fixing the prices for extra work without having invited bids on that subject is illegal, and that the payment of Mr. Birkett’s claims for sewer trenching and sheathing at the rates specified in tliat clause must be enjoined, but that no sufficient cause has been shown for interfering with the payment of the claim for granite pavement.

The plaintiff, upon giving an undertaking in the usual form in the sum of $1,000, may have an injunction during the pendency of the action restraining the county treasurer from paying the claims •of the defendant Birkett for the two items of extra work described in the pleading as sewer trenching and sheathing. The costs of this motion will abide the event of the action.


author: DykmaN, J.:

text:
    Mary A. Peckham and Others, Respondents, v. The Dutchess County Railroad Company, Defendant. James K. O. Sherwood, Receiver of Philadelphia, Reading and New England Railroad Company, Appellant.

      Judgment compelling the construction of farm crossings — a receiver of the lessee of a railroad company must comply with such judgment or abandon the leased property.

    The right of a railroad corporation to maintain its railway rests entirely upon the statutory provisions, and a judgment recovered against a railroad corporation, which adjudges that certain work must be done by the railroad company in order to comply with the statutory provisions compelling it to furnish suitable farm crossings, is in the nature of a judgment in rem. It binds any person or corporation who acquires an interest in the railroad against which such judgment is recovered subsequent to the date of its recovery.
    The receiver of a lessee of a railroad company, against which a judgment has been recovered directing the construction by the company of a certain farm crossing, must either comply with the judgment or abandon the leased railroad.
    The receiver of a lessee of a railroad can only hold the railroad subject to the same liabilities as any other tenant, and upon his failure to comply with the terms of the lease the owner of the leased railroad can compel him to either pay the rent or abandon his lease;
    Appeal by James K. O. Sberwood, receiver of tbe Philadelphia, Reading and New England Railroad Company, from an order of the Supreme Court, made at the Dutchess Special Term and entered in the office of the clerk of the county of Dutchess on the 9th day of May, 1894, directing him to comply with the requirements of the judgments in the above-entitled action, and to make a crossing for the plaintiffs under the line of said railroad in the manner therein directed.

      Milton A. Fowler and James Armstrong, for the receiver, appellant.

      Ilerrick & Losey, for the respondents.
   DykmaN, J.:

We deem it unnecessary in this action to do more than to state our conclusions, which are these:

Tbe judgment in the action against the Dutchess County Railroad Company, recited in the papers, was in the nature of a judgment vn, rem. The only right of that company to maintain a railroad is to maintain it in compliance with the statutory provisions, which compel the company to furnish suitable farm crossings.

■ The judgment in the case was that the particular work intended to be done was necessary to comply with the statute which gives such farm crossings. The judgment was recovered before the lease of the Reading Railroad Company, and bound the latter or any other person or corporation who acquired an interest in the Dutchess County railroad subsequently to the date of its recovery. The receiver, Sherwood, has simply acquired the rights of the Reading Railroad Company, and as against the plaintiffs cannot claim any greater immunity from compliance with the judgment of the court than any other party or company that might succeed to its rights.

It is true that the order is broad enough in its terms to compel the receiver to pay out of any fund of the Reading road the expense of constructing the farm crossings, but the receiver must do one of two things — either comply with the judgment of the court as to the manner in which the Dutchess railroad shall be constructed or abandon the property. In case of such abandonment, the plaintiff can then proceed against the Dutchess and Columbia Railroad Company, but the receiver can only hold that railroad subject to the same liabilities as any other tenant. If he has failed to comply with the terms of the lease, the Dutchess and Columbia Railroad Company can compel him, receiver though he is, to either pay the rent or quit, and he must do the same according to this judgment.

The order should be affirmed, with ten dollars costs and disbursements.

Cullen, J., concurred; Brown, P. J., not sitting.

Order affirmed, with ten dollars, costs and disbursements.