author: MeewxN, J.

text:
    DANIEL SCHMEER, as Administrator of DANIEL SCHMEER, Jr., Deceased, Respondent, v. THE GAS-LIGHT COMPANY OF SYRACUSE, Appellant, Impleaded with Another, Defendant.

      Negligence — liability of a gas-light company for cm explosion inside of a building — • negligence of cm employee of the owner of the building — rules of a gas compcmy to cover possible sou/rces of accident.

    It is provided, by sections 6 and 8 of chapter 811 of the Laws of 1859, that upon the application in writing of" the owner or occupant of a building within one hundred feet of a gas-main a gas company shall supply him such gas as may be required to light the premises, and that the company, by its duly authorized agent, may at all reasonable times go upon the premises to inspect and examine meters and pipes and to ascertain the quantity of gas consumed.
    A gas-light company, pursuant to such an application, led from its main in the street to the inside of the cellar wall of a new building a service pipe, which was left in proper condition with the gas shut off at its inner end. A shut-off cock was also placed at the curb, which worked by a key, gas-fitters being allowed to have keys to enable them, when necessary, to shut off gas from the house.
    The plan of the gas system in the house, put in for the owner by one Tiley, consisted of a long horizontal pipe in the basement, with risers, which were to be left properly capped, going independently to the different floors and apartments, the upper part of the house being designed for several families. After putting in the risers Tiley failed to cap one of them on the third floor. A few days-later, the tenants of the store on the ground floor having applied to the gas company for a meter, the company demanded first a plan of the gas system, which was furnished by Tiley, and thereupon a meter was sent, and a plumber, named Lealiey, employed by the tenants, connected this meter in the store with the horizontal pipe in the cellar by a new riser independent of those put in by Tiley. Leahey then turned on the gas at the curb.
    A.room on the third floor having become filled with gas from the riser left-uncapped by Tiley, Daniel Schmeer, Jr., went into it with a lighted candle, an explosion occurred and he was killed
    In an action brought against the gas company by his administrator to recover the damages resulting from its alleged neglige

      Held, that the action could not be supported.
    That the company had no control over the pipes in the building, except its service pipe, and was hot charged with any duty to protect the occupants against the negligence of the owner or his agents.
    That the statute did not impose any such duty.
    That it was error to charge the jury that they might say whether, in the discharge of the duty of the gas company to exercise reasonable care to prevent gas from injuring persons by explosion or by inhaling, the company should not have made a rule requiring that when a person turned on gas under such circumstances he should at the time examine outlets where meters were to be placed to see that the outlets were properly closed.
    Appeal by the defendant, tlie Gas-Light Company of Syracuse, from a judgment of the Supreme Court, entered in the office of the clerk of the county of Onondaga on the 29th day of October, 1890, upon a verdict for-the plaintiff for $2,000, after a trial at the Onondaga Circuit before the court and a jury; the defendant also appealed from an order of the Supreme Court, entered in the same clerk’s office on the same day, denying a motion for a new trial.

      Martin A. Knapp and Edwin Nottingham, for the appellant.'

      Louis Marshall, for the respondent.
   MeewxN, J.

On the 19th of April, 1889, Daniel Schmeer, Jr., the plaintiff’s intestate, was fatally injured by an explosion of illuminating gas in a building in Syracuse owned by George Young. The deceased lived with the plaintiff, his father, in apartments in the second story of the building, and in the evening of the day in question gas was discovered to be escaping in the third story. The attention of the deceased was called to it and he went partly up stairs and then returned and said : I will get a light and we will find the leak and fix it until morning.” Then, as Mrs. Ripple, a witness for plaintiff and one of the tenants in the third story, testifies: “ Mrs. Bordner says: Don?t take no light.’ I repeated: 1 Don’t take no lamp, you will set us afire.’ He said : £ I wont take a lamp, that will explode; I will take a candle; I have seen them test pipes with a candle; I have seen it done.’ ” He then got a candle and went up-stairs and the' accident happened. It was afterwards discovered that the end of a gas pipe, that had been carried to the hall in the third story for the purpose of there attaching a meter, was open.

The building was a. new three-story brick block. In the first story were a double store and a single one. In each of the other stories there were three apartments or sets of rooms adapted for separate use. The owner employed one Tiley, a gas-fitter ánd plumber of the city, to put in the gas pipes throughout the building-One of the provisions of his contract being: “ Put the joints together in red lead, all pipes to be capped, proven tight and caps left on.” The pipes were so arranged that there could be separate meters for each store and apartment. A horizontal pipe was placed in the cellar in connection with the pipe coming from the street, and from this horizontal pipe risers were carried up in the partitions and let into the halls in the second and third stories, and there the ends were capped or plugged or designed to be until meters should be attached for the use of the tenants.

On the 29th of March, 1889, Mr. Young applied to the defendant, the Gas Light Company, for a service pipe into the building, and soon after the application it was put in by the company and led from the main of the company in the street to the inside of the •cellar wall. It was conceded at the trial that this service pipe “ was of proper size, properly put in and left in proper condition, with the gas shut off.” A shut-off cock, by which the gas could be turned •on or off from the buildings, was placed in this pipe at the curbstone and access was had to this stop-cock by means of a kind of a key which was operated from the surface of the street through a round iron box, having a cover which was fastened. The pipes in the building were connected with this service pipe by Tiley a few days before the accident.

On the eighteenth of April, Yinney & Krause, the occupants of the double store, applied to the gas company for a meter. The company declined to furnish it until they had received from Mr. Tiley the plans of the gas system of the building. These plans were furnished by Tiley the fore part of April, nineteenth, and then a meter was sent by the company to Yinney & Krause. The defendant Leahey was a plumber apparently in the employ of Yinney & Krause, and lie, or his employees, attached the meter to the horizontal pipe in the cellar by means of a branch or riser entirely separate from the risers that wen.t to the stories above. This being done he, or his man, turned the gas on at the stop-cock in the street. This operated not only to send gas through the meter of Yinney & Krause, but also through the horizontal pipe in the cellar and up the risers that had been carried to the second and third stories for the accommodation of meters to be thereafter placed there. The escape followed •at the locality of the accident.

Tbe gas company, in tbe course of its business, allowed plumbers, wbo put in meters that were sent by it to a building for use, to turn on the gas at the completion of their work. The plumbers had keys or instruments of their own with which they did it. When meters were put in for the first time it was not the custom of the company to make the connections. That was done by plumbers in the employ of those who wanted to use the gas.

The evidence seems to be undisputed that when plans were furnished to the gas company by the plumbers who put into the building the gas-pipes, that was understood by both parties to be a representation that the piping had been properly tested and was ready for use.

Leahey, or his employees, when they put in the meter, did not examine to see whether the outlets in the other parts of the building were closed. They seemed to act upon the theory that, after plans were furnished by Tiley to the company, and the latter furnished a meter to the occupant, they had a right to assume that the pipes in the building were all right. • The verdict of the jury in favor of Leahey is to the effect that he or his agents were not guilty of any negligence. Upon the evidence there seems to be no question but that Leahey and Tiley were competent plumbers.

The court charged the jury, that neither Tiley or Leahey were agents of the gas company, and that the company was not responsible for the failure of either to perform any duty he owed plaintiff’s intestate; that, “ if the defendant, the gas company, allowed and permitted agents employed by consumers to let on gas without sufficiently securing the outlets of pipes put in or used by such consumers, the company is not liable for the acts of such agents, or the consequences resulting therefrom; ” that “ the mere fact that consumers or their agents were allowed and permitted to turn on gas at the curb-stone did not make the company liable for the consequences of so doing, when the company had nothing to do, in fact, with the act of turning on the gas; ” that the Gas Light Company owed no duty to plaintiff’s intestate which required it to inspect the gas-piping in buildings such as that in question, put in by a plumber employed by the owner or consumer, before allowing the gas to be let into the building, unless requested to make such inspection.”

The court, however, charged that it was the duty of the company to use reasonable care and diligence to prevent the gas from injuring persons by inhaling or explosion, and then left it to the jury to say whether, in the discharge of this duty, it ought not to have made and promulgated and insisted upon a compliance with a rule or regulation requiring that whoever turned on the gas upon an occasion like the one in controversy should, at the time, examine and see whether the outlets at the different places where meters were to be put on were properly closed. The verdict of the jury against the company in effect found that the company was negligent in the regard specified, and that such negligence produced the injury.

It seems, therefore, to have been held that the company were not bound to inspect, but that they were bound to make a rule for an inspection by the employees of the occupant or owner. There are cases where a corporation is required to make rules and regulations for the conduct of its business and the guidance and control of its servants. (Whittaker v. D. and H. C. Co., 126 N. Y., 549.) But the rule applied here seems to go beyond the scope of those cases.

By the statute (chap. 311 of 1859, § 6), it is provided that, “ Upon the application, in writing, of the owner or occupant of any building or premises within one hundred feet of any main laid down by any such gas-light company, and payment by him of all money due from him to the company, the company shall supply gas as may be required for lighting such building or premises.” By section 8 of the act, the company, by its duly authorized agent, might, at all reasonable times, “ enter any dwelling, store, building, room or place lighted with gas supplied by such company, for the purpose of inspecting and examining the meters, pipes, fittings and works for supplying or regulating the supply of gas, and of ascertaining the quantity of gas consumed or supplied.”

The defendant here was called on to supply gas to this building, and accordingly did so by laying its service-pipe from the main to the inside of the cellar wall, and leaving it in proper condition. The company had no control of the pipes in the building beyond its service-pipe ; it had nothing to say as to how the owner should put in or locate his pipes, or fix the places for the meters, or guard against the escape of gas in the building. They could inspect for the purpose of protecting their rights as to the quantity of gas con- • sumed or supplied. They were not charged by the statute with any •duty toward tbe protection of tbe occupants against tbe negligence of tbe agents of tbe owner or occupants.

The gas escaped from a portion of the pipe owned by the owner of the building, and where, in accordance with the system of pipes •which he adopted, the gas was received, preparatory to use from a meter. It was in a receptacle furnished by the owner of'tbe building, and the company bad no reason to believe it was defective. On the contrary, it was assured by a competent expert, so far as the case shows, that the pipe was safe and ready for use.

If the company, in the ordinary course of its business, allow a party 'to take its gas into a receptacle furnished and owned by tbe party himself, and preparatory to its use in his building, and the ■company have no knowledge or any reasonable ground for believing that such receptacle is defective. I fail to see any basis for negligence.

In Flint v. Gloucester Gas-Light Company (3 Allen, 343), it was held that a gasJight company which had no charge of the pipes or fixtures inside of the meters in the buildings to which it furnishes gas, is not made responsible in damages for an injury caused by an explosion of gas in a room into which it had escaped by reason of negligence in letting it on before the end of a gas-pipe leading into the room was closed, merely by having uniformly permitted, without objection, the person, employed by gas consumers to put in such pipe and fixtures, to let on the gas after so doing.

In 2 Shearman & Redfield on Negligence (4th ed., § 697), it is said: “ The mere fact of the escape of gas, washings or refuse from a place under the control of the company is sufficient evidence to raise a presumption of its negligence; but.the fact of such an escape from apparatus connecting with the property of the company, but not under its control, is not sufficient, especially if the apparatus is the property of the plaintiff. Nor will it alter the case to show that the company had access to the place where the escape occurred.”

'We are of the opinion that the theory upon which the jury were allowed to find the gas company negligent is not tenable, and, therefore, there must be a new trial.

. Hardin, P. J., and Martin, J., concurred.

Judgment and order reversed and new trial granted, with costs to abide tbe event.


source: Caselaw Access Project

author: Martin, J.:

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF NEW YORK, Plaintiff, v. THE BINGHAMTON TRUST COMPANY, Defendant.

      Savings banks — a trust company, in paying interest on deposits and issuing pass-books, does not violate the savings bank act — an injunction cannot be granted on a submission without action.

    The Binghamton Trust Company, incorporated under chapter 546 of the Laws of 1887, advertised that it would receive deposits and pay interest thereon, and that it would issue pass-books to depositors, the rules relative thereto being quite similar to those which prevail in savings banks. It did not advertise or put forth a sign that it would receive deposits as a savings bank, but specifically that it would take them as a trust company.
    Section 288 of chapter 409 of the Laws of 1882 provides “ that it shall not be lawful for any bank, banking association, or individual banker, firm, association, corporation, person or persons, to advertise or put forth a sign as a savings bank, or in any way to solicit or receive deposits as a savings bank,” and for a violation of the act a penalty is imposed.
    The superintendent of the banking department, having reported to the attorney-general that the corporation was violating the statute, agreed upon a statement of facts, which was submitted at General Term without action, in which the people asked for an injunction restraining the corporation from further exercising its alleged illegal privileges, and also demanded payment of the penalty: Held, that where a matter is submitted, under sections 1279 and 1281 of the Code of Civil Procedure, no injunction can be granted.
    That the object of the statute in question was not to confer upon savings banks a monopoly of that class of business, but was only to prevent the public from being imposed upon by persons or corporations pretending to be savings banks. That as there was no evidence to show that the corporation held itself out otherwise than as a trust company, this action could not be maintained.
    Submission of a controversy between tbe People of tbe State of New York, as plaintiff, and tbe Binghamton Trust Company, as. defendant, upon an agreed statement of facts, under section 1279 et seq. of tbe Code of Civil Procedure.
    Tbe admitted facts were substantially as follows:

      First. That tbe defendant was incorporated in 1890 under tbe provisions of chapter 546 of tbe Laws of 1887; is located at Binghamton, N. Y., and commenced business on the 8th day of September, 1890.

      Second. That in connection with its other.business tbe defendant receives from its customers loans or deposits in large or small amounts and issues a pass-book which contains the following printed matter:
    “ The Binghamton Trust Company. Interest Department.
    Rules Governing Deposits.
    “No. 1. This company will be open for the reception of deposits every legal business day from 9 a. m. to 3 p. m., except Saturdays, when the hours will be from 9 A. m. to 12 m., and from 7 p. m. to 9 P. M.
    “ No. 2. All deposits will be entered in the books of the company and a pass-book given to each depositor, in which the sum deposited and withdrawn will be entered by an officer of the company, and which shall be the evidence of the amount of money deposited and withdrawn.
    “No. 3. In order to draw money the pass-book must be presented, accompanied by a written order or check of the depositor. If the signature of the depositor be not on the signature-book, it must then be properly authenticated. No depositor shall have the right to demand any part of his or her principal or interest without first giving to the company, in writing, ten days’ notice for all sums of one hundred dollars or under ; twenty days’ notice on sums between one hundred and five hundred dollars, and thirty days’ notice on sums of five hundred dollars and upwards; but money may be voluntarily paid by the company at any time -without such notice, and without thereby waiving the right of the Trust Company to exact such notice thereafter. In all cases, when the whole deposit is withdrawn, the pass-book must be surrendered to the Trust Company.
    “No. 4. Interest will be paid at the rate of 4% per annum on all deposits left three months or longer. Interest will be compounded semi-annually and entered upon the book of the depositor when presented. No deposit of a less sum than of one dollar will be received, and interest will not be computed on the fractional part of a dollar; and no less sum than one dollar shall be withdrawn at any time, except to close an account.
    “ No. 5. The Trust Company shall be at liberty to return the whole or any part of the deposits of any depositor, with accrued interest, whenever it may deem it advisable to do so, and to refuse to receive the deposits of any individual whenever it may deem it proper.

      “ No. 6. Money may be deposited for the benefit of minors or others, with such directions as may be given in writing at the time of making the deposit.
    “ No. 7. Should any pass-book be lost, the owner is required to give immediate notice thereof to the trust company, and the company may require such testimony and security as it may deem expedient before making any payment to such depositor, or to his order, or before issuing duplicate pass-book.
    “ No. 8. The acceptance of this book, and the entries therein, shall be conclusive evidence that the rules governing deposits printed herein are agreed to by the trust company and the depositor.”

      Third. That the defendant issues and distributes a circular, of which the following is a copy:
    “ The Binghamton Trust Company announces to the public that it is ready to receive deposits of money, and to transact such other business as its charter permits, at its office, corner of State and Henry streets, Binghamton, N. Y. While a trust company may be something unique among the banking institutions of the ‘ southern tier ’ of counties, its organization is intended to supply a need that has long existed. East of Binghamton there is none nearer than New York; north, none nearer than Syracuse; west, none nearer than Buffalo ; while, south, a large section of Pennsylvania is unsupplied with a similar institution. In this extensive territory there is a large amount of capital held by its owners without earning any return,- which, through the medium of a trust company, can be made to realize a definite income. The large* capital employed, and the restrictions to which the trust companies are subjected by the laws of the State, render them the safest kind of depositories; and, as the name implies, are institutions that the people may trust with their savings. The Binghamton Trust Company has a paid-in capital stock of $400,000, and its list of stockholders is a directory of the wealth of Binghamton. Each stockholder being liable to the amount of his stock, and every stockholder being abundantly responsible, the actual security afforded the depositor in the Binghamton Trust Company is $800,000, in addition to the assets in which the deposits are invested. The capital of the company is required by law to be invested in bonds and mortgages on unincumbered real estate in the State of New York, worth at least double the amount loaned thereon; on stocks of New Y ork State, or in stocks and bonds of incorporated cities or counties of the State, duly authorized to be issued, thus placing the capital in securities of undoubted safety, of fixed value, and of a kind unaffected by stock manipulations. By its charter the Binghamton Trust Company has authority, and is prepared, to loan money on real or personal security; to act as fiscal or transfer agent, as trustee, guardian or receiver, as executor or administrator, as committee of the estate of persons of unsound mind; to act as agent in the collection of income or rents; to accept and execute trusts of married women in respect to their separate property ; to take, accept and execute any and all trusts that may be. committed to it; to receive deposits in trust; to receive ■deposits of money, in active account, subject to check at sight without notice; to receive deposits and issue therefor certificates transferable and payable on demand, with interest at the rate of four per cent per annum, if left three months', and special rates for other ■definite periods.
    “An interest department lias been organized and deposits therein will be governed by the following rules (which were the same as set forth in the second statement of fact). This trust company differs from a savings bank in that it has a large capital, safely invested, that is pledged as security to its depositors. This pledge, with the liability of the stockholders, amounts to $800,000. Eight hundred thousand dollars, therefore, stand between a depositor in this company and any possible loss. Interest is paid at a fixed rate, and is not dependent upon earnings. There being no stated dividend period, deposits can be withdrawn at any time after three months, and full interest will be paid to date of withdrawal. The trustees are well-known business men. Successful in their personal affairs, they bring to the management of the trust company experience and sound judgment that are sufficient guarantees that any trust committed to the company will be faithfully and honestly executed. The trust company is free from the contingency of death, which is so often a disastrous feature in the selection and appointment of an individual as trustee. When a person selects it to act as his trustee he has the assurance that it will be in continuance as long as the trust lasts. Securities will be cared for and receipts given. A special room will be assigned to the patrons of the company desiring to look over their securities, or for the transaction of private business. A suitable room, when desired, will be assigned corporations for holding meetings. To the ladies in particular the trust company is exjzected to be a benefit and convenience. Their patronage is es2iecially solicited, and they will receive every attention and consideration. A room is provided for their exclusive use, and also a sepai’ate pay window Any assistance or advice they may wish in regard to the transaction of their business will be gladly given by the officers of the company. Competent and courteous clerks in charge will give information and render all assistance desired for the prompt and satisfactory transaction of business. By courteous treatment and honorable dealing, the company hope to merit and receive your confidence and patronage.”

      Fourth. That the defendant inserts in the papers published in the city of Binghamton and surrounding country, the following advertisement:
    “ The Binghamton Trust Company, corner State and Henry streets, Binghamton. Paid in capital, $400,000. Stockholders personally liable for $400,000 more. Eight hundred thousand dollars stand between a depositor in this company and possible loss. It will receive active deposit accounts subject to check at sight. This company is a legal depository for moneys paid into court, and is authorized to act as guardian, trustee, executor and administrator; also as registrar, trustee, transfer agent and fiscal agent for States, cities, towns, railroads and other corporations. Collects rents, colons and dividends. Ladies unaccustomed to the transaction of business will find this company of great assistance. The company will loan money on real or personal security, and issue drafts and bills of exchange. Approved mortgages purchased. An interest department has been organized, and de2rosits therein will draw interest, until further notice, at the rate of four per cent per annum, if left three months or longer, subject to usual rules. Interest begins at date of deposit, and draws interest till withdrawn. Send for pamphlet giving full particulars.”

      Fifth. The defendant receives deposits and loans from its customers upon the terms and under the regulations set forth in the pass-books delivered to depositors, and in the advertisements set forth herein.

      Sixth. The plaintiffs claim and allege that the defendant, in carrying on the class of business of receiving deposits of money, paying interest thereon, issuing the pass-book as referred to, and under the rules, regulations and advertisement herein set forth, is exercising privileges not conferred upon said corporation by law, and violates the provisions of law under which it was incorporated, and other laws binding upon it, and particularly violates section 283 of chapter 409 of the Laws of 1882, known as the banking law, and the .superintendent of the banking department of the State of New York has reported such violation to the Attorney-General.

      Seventh. The defendant claims that, in carrying on the business in the manner stated,' it is exercising powers conferred upon it by law, and not in violation of chapter 409 of the Laws of 1882, section 283.

      Eighth. The plaintiffs demand that judgment shall be entered upon this submission in favor of plaintiffs restraining the defendant, “ the Binghamton Trust Company,” from carrying on business in the manner referred to, so far as said business is in violation of the provisions of the banking law of this State; that it may be decreed that the defendant is exercising franchises not conferred upon it by law; that the plaintiffs may recover a money judgment against the ■defendant for a penalty of $100 for carrying on said business, as ■alleged, in violation of law, and particularly section 283 of chapter 409, Laws of 1882, known as the banking law; and that the plaintiffs may have such other and further relief as to the court it may seem just and proper to grant.

      Ninth. The defendant demands that judgment shall be entered upon this submission, declaring that it has not violated any provision of law of this State, and especially section 283 of chapter 409 of the Laws of 1882, and that it is authorized to' carry on business in the manner herein referred to, and under the rules, regulations and advertisements set out in this submission; but if not, then that the relief prayed for by the plaintiffs may be granted.”
    The district attorney of Broome county joined in this submission and demanded the enforcement of the penalty therein asked for.

      S. W. liosendale, Attorney-General, for the plaintiff.

      W. J. Welsh, for the defendant.
   Martin, J.:

The submission in this case discloses that the judgment sought by the plaintiffs is to restrain the defendant from carrying on business in the manner described in the submission, so far as it is in violation of the provisions of the banking law of this State; toad judge that the defendant is exercising franchises not conferred upon it by law; and for a penalty of $100 for carrying on business-in violation of the provisions of section 283 of chapter 409 of the Laws of 1882. The only actual relief which the plaintiffs ask is: 1. To restrain the defendant from continuing business in the manner' mentioned. 2. To recover the penalty provided for by section 283. The former cannot be awarded. No relief by injunction can be granted in a proceeding like this. Therefore, so far as this proceeding is for an injunction, it should be dismissed. (Cunard Steamship Co. v. Voorhis, 104 N. Y., 525; Paterson v. Mut. Life Assn. of America, 19 Civ. Pro. Rep., 262.)

This leaves for consideration the question whether the plaintiffs-are entitled to recover a penalty under the statute, which provides: “ It shall not be lawful for any bank, banking association or individual banker, firm, association, corporation, person or persons, to-advertise or put forth a sign as a savings bank, or in any way to solicit or receive deposits as a savings bank; and any bank, banking association or individual banker, firm, association, corporation, person or persons, which shall offend against these provisions, shall forfeit, and pay for every such offense the sum of one hundred dollars for every day such offense shall be continued, to be sued for and recovered in the name of the people of this State, by the district attorneys, of the several counties, in any court having cognizance thereof, for the use of the poor, chargeable to said county in which such offense shall be committed.” (Laws 1882, chap. 409, § 283.) Whether or not such recovery can be had depends upon the construction to be¡ given to this statute.

If the purpose of the statute was to prohibit any person, firm, corporation or association from either soliciting or receiving deposits, in the manner in which they are usually solicited and received by savings banks, it would seem that the plaintiffs would be entitled to a judgment for the penalty demanded, for, when we consider the facts stipulated as to the nature of the'business transacted by the-defendant, the manner in which it was performed, the circulars the defendant distributed and the advertisements it published, it is quite manifest that the defendant solicited and received deposits in substantially the same manner as they are solicited and received by savings banks.

Thus the question is presented whether the legislature intended to confer upon savings banks a monopoly of the class of business usually transacted by them, or whether the intent and purpose of the statute was to protect the public against deception or imposition by prohibiting the receiving and soliciting deposits by any person, firm, corporation or association under the claim or pretense of being a savings bank. We think the latter was the purpose of the statute. This becomes quite obvious when we read all the provisions of that section. The manifest purpose of the section was to render it unlawful to advertise, put forth a sign, solicit or receive deposits claiming or pretending to be a savings bank. If such is the proper construction of the statute under consideration, and we think it is, it follows that the plaintiffs are not entitled to recover the penalty sought to he recovered in this action, as the statement of facts is insufficient to justify us in holding that the defendant, in any manner, held itself out as a savings bank or solicited or received deposits 'claiming or pretending to be such.

These considerations lead us to the conclusion that this action, so far as it is for an injunction to restrain the defendant from carrying on its business in the manner mentioned, should be dismissed; and so far as it seeks to recover a penalty, judgment should be entered in favor of the defendant upon the merits, with costs.

Hardin, P. J., and Mbrwin, J., concurred.

Action dismissed, so far as it is for an injunction, and judgment directed for the defendant on the merits, with costs, in accordance with the opinion of Martin, J., and form of judgment to be settled before Martin J.


author: Merwin, J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. JOHN CONNOR, Appellant.

      'Crimes — relationship of the court to the prisoner — void judgment, a mis-trial —trial of the plea of former conviction and of not guilty before the same jury.

    •John Connor was convicted of larceny in the second degree at a term of the Court of Sessions held in November, 1890, at which both justices of the sessions, -who had been designated to attend the term, failed to appear, and 8. Forman Adee, a justice of the peace, was, by the county judge, designated to serve as one of the justices. After a verdict had been rendered against the defendant, and at the time fixed for pronouncing judgment, the defendant, moved in arrest of judgment upon the ground that Adee was related to Connor within the sixth degree, and also because the statements of the court, made in the presence of the jury relative to the misconduct of a juryman, prejudiced the defendant. The court denied the motion, but set aside the verdict because it was satisfied that Adee was incapacitated by relationship.
    Another justice was substituted, by order, in place of Adee and the case was sent to the next Court of Sessions. Upon a second trial, in March, 1891, the defendant interposed a plea of former conviction, but the plea of not guilty formerly pleaded was not withdrawn. A jury was drawn, and the plea of former conviction was tried. Upon this question the court charged that such a plea was only supported by proof of a lawful trial and verdict, that if Adee was related to the prisoner, as alleged, this had been only a mistrial. The jury found for the people upon the issue of a former conviction. The court then directed that the plea of not guilty be tried before the same jury, which resulted in a conviction.
    Upon an appeal by the defendant from this judgment of conviction:

      Held, that it was proper to try before the same jury the issue of former conviction and the issue of not guilty.
    That both stood on the record together, formed the defense, and could not be tried separately.
    That the defendant was not entitled to a separate judgment upon the trial of the issue of a former conviction.
    That the defendant was not, after the jury had rendered a verdict upon the issue of a former conviction, entitled to re-examine the jury as to their bias, etc., before proceeding to the trial of the plea of not guilty.
    That as Adee was related to Connor within the sixth degree the judgment rendered by the court, of which Adee was a member, was absolutely void.
    That as that court had not jurisdiction to try Connor he had never been put in jeopardy and that the plea of former conviction was bad and there had been a mis-trial.
    Appeal by the defendant John Connor from a judgment of the Court of Sessions of Delaware county, rendered on the 25th day of March, 1891, convicting him of the crime of grand larceny in the second degree, with notice of an intention to bring up for review, upon the appeal, the following orders made and proceedings had upon the trial :

      First. The order of said court allowing the people to file a reply or answer to the plea of “ former conviction ” interposed by said defendant.

      Second. The order of said court directing that a jury be drawn to try said indictment before the issue formed by the plea of “ former ■conviction ” was heard and finally determined.

      Third. The order of the court directing the trial of the issue formed by the plea of “not guilty” before the same jury that had heard the trial upon the plea of “ former conviction.”

      Fourth. The order of the court denying the motion of the defendant that he be discharged.

      Fifth. The order of the court refusing the defendant’s request that sentence be suspended until judgment was entered upon the verdict of the jury rendered upon the issue of “ former conviction.”

      Sixth. The order of the court refusing to direct the clerk to enter .a separate judgment upon the verdict rendered upon the plea of '“ former conviction.”

      Seventh. The order of the court denying the motion made by the defendant in arrest of the judgment upon the verdict of “ guilty ’ rendered by the jury.

      Eighth. Each and every other order and decision of said court made upon said trial or proceeding had therein, objected to by said defendant.

      Abram O. Crosby, for the appellant.

      J. P. Grant, district attorney, for the respondent.
   Merwin, J.:

The defendant was indicted at the Delaware Oyer and Terminer September, 1889, and was there arraigned and pleaded not guilty, and the indictment was thereupon sent to the Court of Sessions for trial. At a term of the latter court commencing November 17, 1890, both of the justices of the sessions, who had been designated according to statute, failed to appear, one being dead and the other absent. The comity judge thereupon, by order duly entered, designated S. Forman Adee, a justice of the peace of the county, to serve as justice of sessions during the term, and also designated Charles McPhail, a justice of the peace of the county, to serve as justice of sessions until the absent justice attended. The court being so constituted, the trial of the defendant was moved and had before the court and a jury and a verdict of guilty rendered, which was received by the court and recorded by the clerk upon its minutes, and the jury discharged from the case. The defendant then moved to set, aside the verdict on the ground of alleged misconduct of one of the jurymen, but this motion was denied. On the 26th of November,. 1890, at the time fixed for pronouncing judgment on the verdict, the defendant, upon affidavits, made a motion in arrest of judgment upon the following grounds:

“First. That the Court of Sessions, at which the trial of the defendant had been had, and in the minutes of which the verdict of guilty has been entered, was and is illegally constituted in this, to wit: That S. Forman Adee, one of the members of said court is related to said defendant within the sixth degree, and that by reason of such relationship he was and is incapacitated from sitting as a, justice of sessions and member of said court during said trial, and from pronouncing the sentence of the court upon the defendant,, pursuant to the verdict of guilty.

“Second. Upon the further ground that the proceedings had and statements made in the presence of the jm-y during said trial, regarding the misconduct of a juryman, were unauthorized, irregular,, illegal and prejudicial to the rights and interests of said defendant.”

This motion was denied, the following being the order as entered upon the minutes of the court: “ Motion denied, as it is not founded on any of the defects of the indictment mentioned in section 331 of the Code of Criminal Procedure, and is not founded upon any facts appearing on the face of the record. But it appearing to the satisfaction of this court that the defendant is related to one of the members thereof within the sixth degree, ordered that the verdict of the jury herein be and the same hereby is set aside.” The defendant duly excepted to each branch of the order, and also moved that the defendant be discharged from custody upon each of the grounds stated in the motion in arrest of judgment. This motion was denied and defendant excepted. After the verdict was set aside another justice was substituted in place of Adee, and an order was made sending and continuing all criminal business, not otherwise disposed of,'to the next Court of Sessions.

The indictment' was again moved for trial at a Court of Sessions commencing 16th of March, 1891. The defendant then interposed a plea of former conviction, setting out the proceedings on the former trial. To this the people replied. Then, on motion of the district attorney, the court ordered that a jury be drawn to try the indictment. The defendant objected to the trial of the issues together, and to the drawing of a jury generally in the action. The objection was overruled and defendant excepted. The jury was impanneled and the court announced that the special plea would be disposed of before entering upon the plea of not guilty, and ruled that the defendant had the affirmative. The trial then proceeded, the evidence consisting mainly of the record of the proceedings on the former trial, and proof that Adee, one of the justices of the sessions, was related by consanguinity to the defendant within the sixth degree. The court charged the jury that the plea of former conviction is only supported by proof of lawful trial and verdict; that the only question for the jury to determine on this issue was, whether the court before whom the defendant was tried was improperly constituted and without jurisdiction; that, if not so constituted, the former trial was no bar to another trial; that if the jury found that Justice Adee was related to the defendant within the sixth degree, the court was improperly constituted, there would be a mis-trial, and that this would be no bar to another trial, and the verdict on this issue should be for the people. The defendant duly excepted. The jury found for the people, and the verdict was received and recorded. The court then directed the parties to proceed to the trial of the issue formed by the plea of not guilty. The defendant objected to the trial-before the same jury, and asked that all further proceedings upon the indictment be suspended until the questions already tried might be reviewed by appeal. The objection was overruled and request denied. The defendant then asked “ to be permitted to examine each individual member of the jury as to his present opinions and qualifications to sit asa juror, in order to determine whether or not, from what has transpired on the trial, which he has heard,. he has at present any bias that disqualifies him from sitting as a juror.” This application was denied. The district attorney then opened the case and gave the evidence on the part of the people. The defendant gave no evidence. A verdict of guilty was rendered and sentence was afterwards pronounced.

The main questions upon this appeal are: 1. 'Whether it was proper to try before the same jury the issue of former conviction, and the issue upon the merits. 2. Whether the proceedings on the first trial, assuming the relationship of the justice, Adee, to be as shown, furnished a sufficient basis for the defense of former conviction.

1. By section 332 of the Code of Criminal Procedure it is provided that a plea of a former judgment of conviction or acquittal may be pleaded either with or without the plea of not guilty. In the present case, when the plea of former conviction was put in, the plea of not guilty was not withdrawn. Both pleas stood upon the record together, as they properly might under section 332. Upon each an issue of fact existed. (Code of Crim. Pro., § 354.) Both together constituted the defense interposed by the defendant. When the trial upon the indictment was moved and ordered, it brought up for the consideration of the court both pleas. No provision is made by the -Code for a separate trial in case there is more than one issue. A complete trial involved the disposition of both, so far as it was necessary in order to arrive at a final judgment. By section 388, Code of Criminal Procedure, which regulates the course of the trial, it is provided that the evidence in support of the indictment must be first given, and then the defendant must give his evidence in support of his defense.” This section seems to apply to all trials without reference to what kind of defense the defendant has put in. In the present case the court, for the benefit of defendant, permitted him to give first his evidence upon the plea of former conviction. Of this the defendant does not complain. If it was irregular, the defendant is not in a position to raise the question. No claim was made that the whole case should be presented to the jury at once. In this respect the practice before the Code was followed. (See 1 Colby Crim. Law, 277.)

In 1 Bishop on Criminal Procedure, section 812, it is said: When the special plea and not guilty are pleaded together, the better practice is not to try them together, but to submit the former to the jury first. Still, some American courts appear to allow it, when accompanied by the instruction to the jury to pass on the former first and disregard the latter if they find on the former for the defendant.” In 1 Wharton on Criminal Law, section 572, it is said that in cases where the defendant pleads over to the felony at the same time, with the issue in the plea of autrefois acquit, the jury are charged again to inquire of the second issue, and the trial proceeds as if no plea in bar had been pleaded.” In Roche’s case (1 Leach Crown Cases, 134), it is said, in such a case, that the issues are always tried upon separate charges to the jury.. The reason was that if the jury found for «the defendant on the plea in abatement, there would be no occasion to proceed to the other issue. There is, however, in thesd authorities, no suggestion that, if it became necessary to have the main issue passed upon, another jury should be impanneled. The inference is to the contrary.

In People v. Trimble (60 Hun, 364), the defendant pleaded only a former conviction. This issue was tried before a jury and verdict rendered for the people. The defendant was then allowed to plead anew, and his plea of not guilty was received and the new issue subsequently tried before another jury. Upon the appeal the claim was made by the defendant that both issues should have been tried by the same jury, and the court said: It is evident that such is not the intention of the statute in case the two pleas are separately interposed.”

We think the court did not err in declining to call another jury. The proceedings on both issues constituted but one continuous trial. The Code permitted them to be put in together, and, as no provision was made for trial before different juries, it is to be inferred that no such trial was contemplated.

2. If the first trial was void by reason of the relationship of one member of the court, it would follow that there would be no basis for the defense of former conviction. (Canter v. People, 1 Abb. Dec., 308.) It would be a case of mis-trial (Shepherd v. People, 25 N. Y., 420; citing 2 Hawkin’s Pleas of the Crown, chap. 36, § 15), and that would be no trial.' If the court, as constituted, was without authority in the premises, the defendant was not in jeopardy. (1 Bishop on Crim. Law, § 1028.) Want of jurisdiction may be shown collaterally. (Ferguson v. Crawford, 70 N. Y., 265.)

In Baldwin v. McArthur (17 Barb., 414), it was held that where one of the'members of a Court of Sessions granting an order of maintenance is one of the persons who, as superintendents of the poor, apply for the order, the court has no jurisdiction and the proceedings and order are void. The action was to recover the amount allowed by the order. The same principle was held in Rivenburgh v. Henness (4 Lans., 208), in regard to an order of affiliation made by a Court of Special Sessions composed of two justices, one of whom was related to the complainant within the prohibited degree. The action was for false imprisonment. The same thing seems to have been held in Oakley v. Aspinwall (3 Comst., 547.) It was there held that when one of the judges of the Court of Appeals was disqualified to sit in a case by reason of consanguinity to one of the parties, he cannot sit even by consent of both the parties, and if he do, the judgment will be vacated. If the judgment was only voidable, it would seem that the consent would cover the irregularity. (See, also, Schoonmaker v. Clearwater, 41 Barb., 204; affirmed in Court of Appeals, Chambers v. Clearwater, 1 Abb. Dec., 341.) In this case in the Court of Appeals, at page 345, Judge Denio says that the decision of the Court of Appeals in the Oakley case was that such a judgment was not simply erroneous, but utterly void. These decisions were under a provision of the statute similar to section 46 of the Code of Civil Procedure, which provides that a judge shall not sit as such in a cause or matter if he is related by consanguinity or affinity to any party to the controversy within the sixth degree.

With regard to statutes of this kind it is said, in Freeman on Judgments (2d ed., § 146), that “the general effect of the statutory prohibitions in the several States is undoubtedly to change the rule of the common law so far as to render those acts of a judge involving the exercise of judicial discretion, in a case wherein he is disqualified from acting, not voidable merely, but void.” (See, also, 12 Am. and Eng. Encyc. of Law, 43.) The adjudications of the different States are not entirely in harmony on this subject. (See 1 Black on Judgments, § 174.) Following the adjudications in this State, it must, I think, be held that the trial in question was void.

If the first trial was not void but only voidable, the question might arise whether the order setting aside the verdict, which was made by the same court upon the fact of relationship appearing, would not conclude tbe defendant until Reversed. That order was not appealed from. It was held in Gay v. Monroe General Sessions (12 Wend., 272), that a Court of General Sessions had power to set aside a verdict for irregularity. It is not, however, necessary to decide upon the validity of that order.

There areno other questions that call for special consideration. The defendant claims that the order continuing the unfinished business made at the close of the first term to the following term was invalid. It was, however, not necessary that any order should have been made for that purpose. The defendant claims that he was entitled to a separate judgment, on the verdict upon the issue of former conviction. We think not. The Code does not seem to provide for this particular contingency. The former practice may, therefore, be followed. (See People v. Trimble, 42 N. Y. St. Rep., 718.) Section 442, Code of Criminal Procedure, to which the counsel refers, applies only to judgment in case of special verdict. Nor was the defendant entitled to re-examine the jurors after they had passed upon the question first submitted to them. The jury was impanneled to try the indictment. Before it was sworn the defendant had and exercised the right of examination, and there is no claim that he did not .then fully exhaust the subject.

The foregoing considerations lead to the affirmance of the judgment.

Hardin, P. J., and Martin, J., concurred.

Judgment of the Court of Sessions of Delaware county affirmed, and proceedings remitted to that court for the execution of the judgment.


text:
    DARWIN M. BEARDSLEE, Respondent, v. VINCENT W. HEMINGWAY and Another, as Administrators of HARRY HEMINGWAY, Deceased, Appellants.

      Partnership —death of one partner — his estate is not discharged by the sw'vivor’s agreement to pay a higher rate of interest on the continuance of afvrm obligation— insolvency of the survivor — evidence that the estate of the deceased partner is of no value.

    A banking firm, composed of Eugene B. and Harry Hemingway, issued certificates of deposit to P. P. Beardslee, bearing interest at the rate of three per cent per annum. Subsequently Harry Hemingway died and the business was continued by Eugene B., who, in view of Beardslee having threatened to withdraw his money, agreed to pay, and did pay, him four per cent interest on his deposit, but there was no agreement on Beardslee’s part to leave the money on deposit for any definite time, nor were the old certificates of deposit surrendered or new ones issued.
    Eugene B. having become insolvent an action was brought by an assignee of P. P. Beardslee against the legal representatives of Harry Hemingway to recover' the amount of such certificates.

      Held, that there was no extension of the time of payment of the certificates which would release the estate of the deceased partner.
    That the agreement .to pay four per cent interest did not discharge the estate of the deceased partner, nor did the payment of interest at that rate.
    That, in order that a transaction should have such an effect it must appear that the-creditor accepted the liability of the survivor in discharge of the liability of the partnership. That whether this has been done is a question of fact.
    That as Eugene B. Hemingway was insolvent an action would lie to enforce payment from the legal representatives of the deceased partner.
    That it was not error to exclude evidence to show that the estate of Harry Hemingway had no assets.
    Appeal by the defendants Yin cent W. Hemingway and Lavinia B. Hemingway, as administrators of Harry Hemingway, deceased, from a judgment of the Supreme Court, entered, upon a decision of the court, the jury having been discharged from the further consideration of the case, in favor of the plaintiff for $1,208, and interest at three per cent, after a trial at the Broome Circuit, with notice of an intention to bring up for review on the appeal the findings of the court, its refusals to find as requested, and its rulings as made.
    ■ The plaintiff was an assignee of P. P. Beardslee.

      Alexander <& A. W. Cummings, for the appellants.

      Carver, Deyo & Jenkins, for the respondent.
   Merwin, J.:

This action is brought to recover the amount of four certificates, of deposit, amounting in the aggregate to $1,208, given by the banking firm of H. Hemingway & Son to P. P. Beardslee, prior to May 14, 1886. The certificates were in the usual form, and each had the clause, “ interest at 3 per cent if left 6 months.” The firm was composed of Harry Hemingway and Eugene B. Hemingway, The former died on May 14, 1886, and the certificates in question were then outstanding. Eugene B. continued and individually carried on the business at the same place, and also adjusted unsettled copartnership business.

On'or about June 15, 1886, there was a conversation between P. P. Beardslee and Eugene B. Hemingway with reference to an increased rate of interest upon the certificates. Beardslee said to-Hemingway that he could, at some other bank, get four per cent,, and Hemingway replied that he would allow him four per cent on the certificates if he would leave them. At the close of Hemingway’s evidence, in reply to the question, When you agreed to pay the four per cent what was the conversation hetween you and Mr. Beardslee,” the witness testified: He said he could get four-per cent here in Binghamton at the savings bank, and that if I could not pay it he would probably make the change; he did not say he-really would, but carried that idea, and I told him I would give him the increased rate of interest, four per cent, on the condition that he left it; that is all the conversation in regard to it.” In substance, Hemingway verbally agreed to pay Beardslee four per cent interest if he would leave the money. The money was not drawn out, and thereafter and up to December 1, 1889, interest was paid at the rate of four per cent. There was, as the court below found on sufficient evidence, no agreement to leave the money any time, or till the happening of any event, and no agreement which would have prevented the holder from demanding the same at any time. The defendants-had no knowledge of, and did not consent to the change! of interest. They were appointed administrators on the 23d of September, 1886.

Shortly after December 1, 1889, Eugene B. Hemingway failed! The present action was commenced on the 20th of August, 1891, and the plaintiff:, to whom the certificates had been transferred,- recovered their amount, with interest at three per cent from December 1, 1889.

The defense is mainly based on the transaction between plaintiff’s assignor and the surviving partner with reference to the increased rate of interest.

There was nothing to prevent the creditor from demanding his pay at any time upon the certificates. There was, therefore, no extension of time of payment that would release the estate of the deceased partner, assuming it occupies the position of a surety. Indeed, the claim of the defendant does not seem to be placed on this basis, but upon the theory that there was, in effect, a new contract between the creditor and the surviving partner that operated to release the estate.

In Hamersley v. Lambert (2 Johns. Ch., 508) it is said by Chancellor Kent to be the established doctrine that neither delay, nor lapse of time, nor dealing with the survivor, nor calling for and receiving part of the debt from the survivor, amounts to a waiver or bar of the claim upon the assets of the deceased. In Parsons on Partnership (438 [2d ed.]) it is said, with reference to the liability of a retiring partner, that “ if a creditor of a firm contracts or agrees with a new firm to take their security in discharge of that of the old, the retiring partner is discharged from any liability to pay the debt, and whether such an agreement has taken' place is a question of fact for the jury. To discharge the retiring partner, however, it is not sufficient to take a new security, but there must be an agreement to discharge him from the liabilitiy of the old firm.” The mere receiving of interest from the new firm will not discharge the old. (Id., 441; Daniel v. Cross, 3 Ves., 277.) In Heath v. Percival (1 P. Wms., 682; S. C., 1 Str., 403, and referred to in 2 Coll. on Part. [6th ed.], 914) there was an agreement by the continuing partner to pay an increased rate of interest, and a receipt of the same by the creditor. It was held that the estate of the retiring partner was not released. The question in such cases seems to be, whether the transactions show that the creditor has accepted the liability of the survivor in discharge of the liability of the partnership (Winter v. Lnnes (4 Myl. & C., 101); 16 Am. and Eng. Encyc. of Law, 906, 908, and cases cited; Fogarty v. Cullen (49 Supr. Ct., 397), and this is a question of fact. (Harris v. Farwell, 15 Beav., 33.)

In the present case the certificates of the firm were not surrendered, nor was there any further obligation in writing taken from the survivor. The creditor was given the option of allowing his money to remain and receiving an increased rate of interest. This option the creditor availed himself of for several years. The debt was not changed. There is no finding, or request to find, that the creditor intended to release the estate, or that the survivor intended ■or agreed to become solely liable. We cannot say, as matter of law, upon the facts as here presented, that such intent existed on the part of either party, or that exclusive credit for the debt was given to the survivor. It, follows that the defense in this regard is not made out.

In the course of the trial the plaintiff showed that on the 2d of July, 1890, he recovered a judgment in the Supreme Court against Eugene B. Hemingway upon the claim in controversy, upon which execution was thereafter issued and returned wholly unsatisfied. The defendants claim that this judgment is invalid by reason of •certain defects in the affidavits upon which an order for the service of the summons by publication was based. This question it is not important here to consider, as it is found upon sufficient evidence that Eugene B. Hemingway at the time of the commencement of this action, and for some time prior thereto, was insolvent. This authorized an action to enforce payment against the estate of the deceased partner. (Pope v. Cole, 55 N. Y., 124.)

It was not error for the court to decline to receive evidence that defendants had no assets. (Code, § 1824.) Nor does it appear that the ruling of the court as to certain declarations of plaintiff’s assignor was erroneous. (Clews v. Kehr, 90 N. Y., 633.)

The judgment should be affirmed.

Hardin, P. J., and Martin, J., concurred.

Judgment affirmed, with costs.


text:
    JOHN G. MORE, as Administrator of URIAH MULLENIX, Deceased, Respondent, v. ELMER FINCH and Another, Appellants.

      Executors and administrators — appointment of an administrator while a prior appointment of an infant as administratrix! stands unrewhed — the appointment cannot be questioned collaterally — declarations of an administrator as to past transactions.

    Daisy Mulienix, in 1887, while an infant, was appointed administratrix of her husband’s estate. In 1890, and while her appointment stood unrevoked, John G. More, who was appointed her general guardian, and subsequently, at her request and in her right, was appointed administrator of the same estate, brought, after a proper demand therefor, an action of trover for a horse which had belonged to the decedent. In this action brought by More, at the time of the trial of whieli Daisy was still under age, the answer set up the defense that the appointment of More was void, but did not allege the prior appointment of Daisy Mulienix.

      Held, that this question could not be tried in the action of trover.
    That if the surrogate had jurisdiction the appointment of More gave ample authority to him to bring the action.

      Semble, that the defendants would not be precluded from defending the action by setting up acts of Daisy Mulienix within the scope of her apparent authority as administratrix.
    That declarations of Daisy Mulienix, as administratrix, relative to past transactions, were not competent against the estate.
    Appeal by the defendants Elmer Fincli and Yictor Finch from a judgment of the Supreme Court, entered in the office of the clerk of the county of Delaware on the 20th day of February, 1891, upon a verdict for the plaintiff for eighty dollars; and also from an order of said court, entered in said clerk’s office on the 13th day of February, 1892, denying a motion for a new trial, made upon a case and exceptions, after a trial at the Delaware Circuit before the court and a jury.

      Marvins & Hanford, for the appellants.

      II S. Sewell t& A. Heish, for the respondent.
   Merwin, J.:

The plaintiff in this case seeks to recover of the defendants the value of a horse which was owned by the plaintiff’s intestate at the time of his death on the 7th of July, 1889, and which, as plaintiff alleges, was on the 7th of April, 1890, converted by the defendants to their own use. The plaintiff, before bringing suit, made a demand of the defendants for the horse or its value, all which was refused. The plaintiff was' appointed administrator on the 8th of July, 1890, by the surrogate of Delaware county upon petition by the proper party showing all the facts necessary'to give the surrogate jurisdiction.

In defense the defendants show that, prior to plaintiff’s appointment, and on the 19th of September, 1889, Daisy Mullenix, the widow of said deceased, was, upon petition, in due form appointed .administratrix by the same surrogate, and that the records of his office do not show that any order has been made revoking such letters. The defendants, therefore, claim that the appointment of plaintiff wras void and that plaintiff showed no title to the subject of the controversy.

It appeared that the widow was a minor, being at the time of the trial about eighteen years old. The appointment of the plaintiff as -administrator was made at her request, she, for that purpose, asking for the appointment of plaintiff <\s her general guardian. He was -so appointed, and then, as such, upon proper papers, was appointed .administrator. The widow in her petition stated, among other things, that prior to that time no letters of administration had been applied for or granted so far as she knew. The defendants in their .answers deny the appointment of the plaintiff, but do not allege the prior appointment. They set up that all the property left by the intestate did not exceed four hundred dollars; that all of this became, -at the death, the property of the widow as such, and that she took possession claiming to be the owner; that afterward and prior to April 2, 1890, she, for valuable consideration, sold the horse to one A. L. Brown, who, on April' 2, 1890, executed to the defendant Victor Einch a chattel mortgage thereon, and that defendants hold under that mortgage.

The court held that the -plaintiff could maintain the action, and that the validity of the letters issued to plaintiff could not in this .action be contested by the defendants.

In Power v. Speckman (126 N. Y., 354, 357), it was said of a similar situation, that the order of the surrogate making a second appointment while the first stood unrevoked, was not void or without jurisdiction because of the previous appointment; that that fact simply made it erroneous or irregular and liable to be reversed on appeal or vacated on a proper application, and that in the latter case, if the second appointee could furnish some lawful reason for the revocation of the prior letters, they might have been revoked and his own authority permitted to stand. If the surrogate had jurisdiction, then, under section 2591 of the Code, the letters to plaintiff were conclusive evidence of his authority. He, in this action, sought to recover of the defendants a portion of the assets of the estate after himself making of them a proper demand. "We think that the court below did not err in holding that the plaintiff could maintain the action so far as his appointment was concerned.

It would not, however, follow from this, nor did the court below hold that the defendants would be precluded from justifying their action through some act of or transaction with, the first administrator within- the line of her apparent power.

Upon the evidence there is some question whether the horse was included in the mortgage under which the defendants claim. The description of the property in the mortgage would seem to exclude it. Be that as it may, the defendants failed to show that the widow ever sold the horse to the mortgagor. Upon this subject, however, the defendants offered to prove the declarations of the widow after her appointment as administratrix and before plaintiff’s appointment. These were objected to as incompetent and not binding upon plaintiff, and were excluded. In this ruling the defendants claim error.

The declarations offered had reference to a past transaction, and were, in substance, that she had, at some previous time, sold the horse to the mortgagor. These were not admissible against the plaintiff -within the rule laid down by the Court of Appeals in Davis v. Gallagher (124 N. Y., 487); see, also, 2 Wharton on Evidence (§ 1199); Pease v. Phelps (10 Conn., 62, 68). There is no basis in the case' for an estoppel.

The judgment is for the value of the horse as found by the jury. We find no good reason for disturbing it.

Hardin, P. J., and Martin, J., concurred.

Judgment and order affirmed, with costs.


text:
    HERMAN F. INDERLIED and Others, Appellants, v. NICHOLAS WHALEY, Respondent.
    Trees— contracted for — action for conversion maintainable by one homing an equitable title to the land and the right to possession — estoppel — an expression of an opinion is not enough.

    In March, 1881, Dwight F. Mores, the owner of a tract of wood-land, agreed with one Chace that th e latter should peel the hemlock 4>ark and manufacture certain of the lumber on the lot at certain prices. While this contract was in force, and in November, 1881, Morss contracted, in writing, with persons of the name of Inderlied to sell the lands, subject to Chace’s rights. The contract of sale, which went into effect January 13, 1883, reserved to Morss the timber, except the hard wood, and provided that Morss or Chace should have the period of four years in which to cut and remove the timber reserved, reserving to Chace the mill, the mill-yard and a suitable space for piling lumber; and also the right to remove, after the completion of the contract, such structures as he had erected on the lands, to which contract Chace consented.
    In October, 1884, Chace surrendered his contract with Morss, and also the possession of the land thereunder, to Nicholas Whaley, who occupied the premises with the consent of Morss, until April, 1886. On January 13,1886, there was a quantity of lumber manufactured in various forms on the mill-yard, and also a quantity outside of it. About sunset, on January twelfth, the Inderlieds forbade the removal of any more lumber by Whaley, who had intended to remove all of it before midnight of January thirteenth, claiming that he had all that day in which to do so. As a result of the Inderlieds’ prohibition Whaley did not remove the timber on January thirteenth, but after that date and before March 34, 1887, he removed most of it.
    On April 10, 1888, the Inderlieds received a deed from the executors of Morss, . who had previously died; but before this deed was given the Inderlieds brought an action against Whaley for the conversion of the timber.

      Held, that the action could be maintained.
    That the plaintiffs, by virtue of their contract with Morss, became the equitable owners of all timber not reserved.
    That this gave the plaintiffs a special property sufficient to maintain the action for ' conversion.
    That timber cut, but not removed within four years, was not excepted, and the equitable title, and the absolute right of .possession thereof, passed • to the plaintiffs.
    That the plaintiffs were not estopped from recovering the timber because, on January twelfth, they had forbidden further removals.
    That what they did amounted to-no more than an expression of their opinion, that Whaley had only until sundown on January twelfth to remove the timber.

      Appeal by the plaintiffs, Herman F. Inderlied, William K. Inderlied and Edward C. Inderlied, from a judgment of the Supreme Court, entered in the office of the clerk of the county of Delaware on the 12th day of July, 1890, dismissing the complaint, with costs, after a trial by the court at the Delaware Circuit.
    In March, 1881, Dwight F. Morss was the owner of about nine hundred acres of land situated in the town of Tompkins, Delaware county, N. Y. On the twenty-ninth of that month he entered into a contract in writing and uncler seal with one Chace, whereby Chace agreed to peel all the hemlock bark on said premises, and to deliver the same on the cars at Rock Rift station, for which Morss was to pay three dollars per ton. Chace also agreed to cut and manufacture all the hemlock, bass-wood and chestnut timber on the premises into lumber and deliver the same on the cars at the same station, for which he was to receive six dollars per thousand, and was to cut and manufacture into lumber and load on the cars at the station all the birch, ash and cherry timber thereon for seven dollars a thousand.
    On November 18, 1881, while the contract between Morss and Chace was still in force, the plaintiffs, one Sliufelt and Morss, entered into a written contract under seal, wherein it was recited that Morss was the owner of the premises mentioned; that he had entered into a contract with Chace for cutting the timber and peeling the bark thereon; that Chace had erected buildings on the land and was in •occupation of part of it in performance of his contract; and that Morss desired to sell, and the plaintiffs to purchase, the said lands, subject to the performance by said Chace of the contract first mentioned, and to the rights of Chace in and to his erections thereon.
    The contract then contained an agreement by Morss to sell, and by the plaintiffs and Sliufelt to purchase, the premises described, being the 900 acres above referred to, “ excepting and reserving unto the first party (Morss) all the hemlock, ash, bass-wood, cherry and chestnut timber now standing or being on the said land, and reserving also unto first party the right, either for himself or his agents, to go upon the said land and cut and peel the said timber and remove the said timber and bark therefrom, using such teams, men or machinery as may be necessary therefor, and reserving also unto said Chace the use of the buildings and erections now on said land, and of the mill-yard, and suitable space for piling logs and timber during the carrying out of this contract with said first party, and the right also unto said Chace, at the completion of his said contract, to remove from said land all of the erections that may be on said land for the ptirpose of carrying out his contract with first party, including dwelling-house, sheds, barns, saw-mill and mill fixtures.”
    It then provided that the contract with Chace should be modified by excepting therefrom so much “ as provides for the cutting and manufacture of the hard wood on said land, which said hard wood, except as above provided, it is intended to convey unto second parties (plaintiffs and Shufelt.) ” It also provided that the plaintiffs and Shufelt should pay therefor $4,000, $800 of which was to be paid ■on the delivery of the contract and the remainder in six equal annual payments from date, with interest annually on all sums unpaid, payable at the time of each annual payment. At the time of the last payment Morss was to execute to plaintiffs and Shufelt a deed, with covenants against all acts on his part. The contract provided, in ■express terms, that the plaintiffs and Shufelt were to have the immediate possession of the premises, the contract,, however, not to take effect or be operative unless Chace consented to modify his contract to conform to that contract and to continue his contract as modified. Then followed this provision : “ It is further agreed that said first party or said Chace shall have the period of four years in which to cut and remove the timber herein reserved, at the end of which time said reservation of timber shall cease to be operative. It is also agreed that said Chace shall have the right to continue all erections on said land made by him and to enjoy the use of the mill-yard, piling ground, and garden and yard adjoining said dwelling-house, so long as he shall use the mill for saw-mill purposes, and shall then have the right to remove said erections from said land, it being expressly understood that said erections are not and shall not become fixtures on said land.” Subsequently Chace agreed to modify his contract with Morss so as to make it correspond with the contract between him (Morss) and the plaintiffs and Shufelt, and agreed to carry out and continue the performance of the contract as modified.
    On January 13, 1882, Chace .having previously consented in writing to modify his contract with- Morss to conform with the contract between Morss and plaintiffs and Sbufelt, the plaintiffs paid Morss $800, whereupon the following paper was made and signed by Morss:

      “ Syracuse, January 13, 1882.
    “Received on contract between D. F. Morss and H. F. Inderlied & Co. the sum of eight hundred dollars, being first payment on said contract, the said Inderlieds and Shufelt, however, to pay whatever tax has been levied on the land mentioned in the contract since November 18, 1882, and the contract is this day delivered to and accepted by the parties thereto with the above understanding.” To this was added the following: “ The above receipt witnessed and agreed to at above date,” which was signed by the plaintiffs and Shufelt.
    On the trial the court, in substance, found that on January 13, 1882, when the agreement between the plaintiffs and Shufelt and Morss was finally executed and delivered, Chace was, and had for some time been, in possession of the mill, mill-yard and piling-ground reserved in that contract; that, in October, 1884, Chace surrendered his contract with Morss to the defendant, who w-as acting for Morss, and surrendered to him the possession of the mill, mill-yard and piling ground, consented that he might use and occupy the same as he (Chace) had previously; and defendant' used and occupied them to and after April 12,1886; that, on January 12, 1886, there w-as a quantity of hemlock lumber, telegraph poles, railroad ties and fence jDosts on the mill-yard that the defendant had caused to be cut on the premises and manufactured and stored there ; that at the same time there were 14,000 feet of bass-wood lumber, and 1,500 feet of hemlock logs on said premises outside of the mill-yard and piling ground; that at about four o’clock p. m., on January 12, 18S6, the plaintiffs forbade the defendant and persons in his employ from removing such logs or timber as wrere outside of the mill-yard, or to interfere with them in any manner whatever; that the plaintiffs’ forbidding the removal of the same deterred persons then employed by the defendant from continuing their work upon the premises, by reason of which the defendant was unable to remove such timber and logs to the mill-yard or piling ground, as he had intended and might have done before the end of January 13, 1886, if he had not been forbidden;, that the premises were fully paid for before April 10,1888 (the last payment was made January 24, 1888); and on that day (April tenth), a deed of the premises was duly executed and delivered to the plaintiffs by the executors of Morss, who had died previous to that date; and that the defendant, between January 12, 1880, and March 24, 1887, removed the most of the timber and lumber mentioned as on the mill-yard and piling ground, and the 14,000 feet of bass-wood and 1,500 feet of hemlock on the premises outside.
    As conclusions of law, the' court, in substance, held: 1. That the defendant had a right to occupy the mill-yard and piling ground for storage, and was not liable for removing timber or lumber therefrom. 2. That by reason of the plaintiffs having forbidden the defendant from moving the timber and logs outside of the mill-yard and piling ground, and thus prevented him from completing his .work within the time specified in the contract, they were estopped from recovering in this action for the removal of such logs after the time mentioned in the agreement. 3. That the plaintiffs had no title to the timber and lumber in question. 4. That the contract was executory, and the title to the premises and timber thereon and severed therefrom was in Morss, and after his decease in his executors, and such title did not become vested in the plaintiffs. 5. That' the action being for the conversion of the property in question, the plaintiffs could only recover by showing title in themselves, which they failed to do. 6. That the action could not be maintained, and the complaint should be dismissed, and judgment was directed accordingly.

      Marvins <& Hanford, for the appellants.
    IF. H. Johnson, for the respondent.
   Martin, J.:

This action was for trespass in removing and converting personal property consisting of lumber, telegraph poles, railroad ties and fence posts. No other cause of action was set forth in the complaint. The main controversy between the parties was whether the plaintiffs had sufficient interest in the property in question to enable them to maintain the action.

By virtue of their contract with Morss, the plaintiffs became the equitable owners of tlie land described therein, together with all the timber and trees growing thereon, except so far as the same was therein reserved and excepted. {Moore v. Burrows, 34 Barb., 173; Adams v. Green, Id., 176; Hathaway v. Payne, 34 N. Y., 103.)

The exception contained in the contract reserved to Morss, his agents or Ohace, only such timber as was cut and removed within four years. If any was not removed within that time, although cut, it did not fall within the exception, and the equitable title, with the absolute right of possession, passed to the plaintiffs, (McIntyre v. Barnard, 1 Sandf. Ch., 52; Boisaubin v. Reed, 2 Keyes, 323; Kellam v. McKinstry, 69 N. Y., 264; Lacustrine Fer. Co. v. L. G. and Fer. Co., 82 id., 476.)

If it be admitted that Morss had title to the lumber and timber which had been cut and removed to the mill-yard and piling ground, it by no means follows that he had the right to remove the portion left upon other parts of the premises of which the plaintiffs had •actual possession and to all of which they had an equitable title.

When Morss or those claiming or acting under him failed to remove the timber cut within the time provided, as we have seen, it passed under the contract to the plaintiffs, who thereupon acquired ■an equitable title to it, with a legal right to its possession, which was expressly given by the contract. Before the trial of this action the plaintiffs’ equitable title had ripened into a legal title. When the action was commenced the plaintiffs, by virtue of their equitable interest and legal right to the possession of it, had, we think, such :a special property in and right of possession of the lumber not removed as would enable them to maintain an action for its conversion against any person wrongfully taking the same, and even .against a person holding the naked legal title in trust as security for the payment of the unpaid purchase-price of the premises, especially where, as in this case, the whole purchase-price had been tendered. (4 Am. and Eng. Encyc. of Law, 117; Moak’s Underhill on Torts, 589; Edwards v. Frank, 40 Mich., 616; Hoyt v. Van Alstyne, 15 Barb., 568; Stowell v. Otis, 71 N. Y., 38; Wheeler v. Lawson, 103 id., 40, 45.) We, therefore, conclude that the court erred in holding that the plaintiffs had not sufficient title to maintain this action.

But it is contended that the plaintiffs were estopped from insisting upon their right to the timber not removed within the time mentioned in the contract, because the plaintiffs forbade the defendant from removing it on January 12, 1886, when the defendant had all of the thirteenth day of that month in which to remove it. While the defendant’s claim as to the time within which he might remove it may be correct (Cornell v. Moulton, 3 Denio, 12), still, if so, it is difficult to discover any ground’upon which the defendant’s claim of estoppel can be upheld.

As to what occurred between the parties, the defendant testified: “On the 12th day of January, 1886, I remember being forbidden by the plaintiff to go on and do anything further. I was on the track where we run lumber out of the mill; the mill was running at the time. Plaintiff wanted to know if I knew our time was out; I told him I did not; I supposed we had the 13th on which the contract was signed and delivered. He said: ‘No, your time expires to-day.’ ‘Well,’ I said, ‘you will give us the benefit of this evening.’ ‘No,’ he said, ‘your time expires with the setting sun to-day.’ I took out my watch and looked at the time; it was four o’clock, and as soon as he left I made a memorandum of the day and hour. I done some work that evening; cleaned the snow out of the chute. I did nothing on the 13th, as I could not get help. * * * Had I not been forbidden I think I could have got all this lumber into the mill-yard by the evening of the 13th of January; think I had or could have got force enough to put them all on.”

As to what occurred upon this occasion there is substantially no dispute. Prom the evidence it is manifest that the plaintiffs were of the opinion that the time in which the defendant could remove the timber, excepted or reserved in the contract, exjfired at sundown on January 12, 1886, and that they, in substance, so informed the defendant and refused to extend the time to remove it. In this we can find nothing sufficient to establish an estoppel against the plaintiffs. We are aware of no principle or authority which would sustain us in holding that the plaintiffs’ assertion of their supposed rights at that time and in the manner stated estopped them from afterwards claiming the timber which had been cut and not removed. We do not think the judgment can be sustained upon that ground.

We are of the opinion that the learned trial judge fell into an error in holding that the plaintiffs had not sufficient property in the lumber cut, but not removed, to enable them to maintain this action, and in holding that they were estopped from claiming such timber. For these errors we think the judgment should be reversed.

Hardin, P. J., and Merwin, J., concurred.

Judgment reversed and a new trial ordered, with costs to abide event.


author: Martin, J. :

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. ARVIN RICE, as Survivor of the Firm of HOWE & RICE, v. THE BOARD OF AUDITORS OF THE TOWN OF HANNIBAL, New York.

      Town auditors — final rejection of a claim — certiorari — it will not lie after the certificate of audited accounts has been delivered to the board of supervisors.

    A firm of attorneys were employed by the supervisor of a town to recover against the-county taxes collected from a railroad corporation which, as alleged, were improperly applicable to the use of the county.
    For services rendered in this matter a bill was presented by the survivor of the firm to the town auditors and was allowed, but such allowance was rescinded upon the protest of certain taxpayers, -who urged .that the bill was not itemized, and also that the time spent in the rendition of the services did not appear. The bill was, thereafter itemized as to expenses, but not as to services; was again presented to the board of town auditors, and was rejected because it was not itemized as to services, contained no evidence of value except the statement of the applicant, and was excessive. The board, however, allowed evidence as to value to be given by another attorney, and about one-quarter of the claim, which was what it deemed a reasonable compensation, was allowed.
    Upon the hearing of a certiorari obtained by the survivor of the firm, after the certificate of audited accounts had been already delivered to the supervisors of the county, to review the determination of the town auditors:

      Held,, that, upon the facts, the action of the board amounted to a rejection of the claim, except as to the sum allowed, and that it constituted a final determination of the matter'upon its merits.
    That, after the certificate of accounts audited by the town auditors had been delivered by the board to the supervisors of the county, the jurisdiction of the town auditors was at an end, and a writ of certiorari then granted was ineffectual for any purpose.
    Certiorari issued upon tlie petition of Arvin Rice, survivor of the firm of .Howe & Rice, to review the determination of "William R. Wilson, Supervisor; Chauncey L. Fetterly, Town Clerk; Levi Brackett, Arthur' A. Clark, Robert Gifford and George A. Leonard, Justices of the Peace of the town of Hannibal, constituting the Board of Auditors of the Town of Hannibal, in the county of Oswego, N. Y., in auditing, at the sum of fifty-six dollars, a claim for legal services rendered by the firm of Howe & Rich to the said board.

      Piper c& Rice, for the relator.

      IJ. P. Metcalf, for the respondent.
   Martin, J. :

The relator was the survival- of the firm of Howe & Rice, who were attorneys of this court. They were employed by the supervisor of the town of Hannibal to commence an action in his name against the board of supervisors and county treasurer of Oswego county to recover certain taxes which had been collected of the Rome, -Watertown and Ogdensburg Railroad Company and improperly applied for the use and benefit of the county. The action was commenced, and was by them prosecuted to judgment, and the plaintiff had a recovery. Similar actions were -commenced and prosecuted to judgment by the relator for the towns of Oswego, Hastings and Sandy Creek.

Afterwards, and on the 5th day of November, 1891, the relator, as such survivor, presented to the town auditors of the town of Hannibal a bill of $200 for the services and expenses of the firm in conducting that action. Without examination of the relator’s bill, or discussion by the boarcj, a motion was adopted allowing him the full amount. On the same day several citizens of the town of Hannibal appeared before the board óf auditors and protested against the auditing and allowing of the relator’s claim on the grounds- 1. “The bill for services was not itemized. 2. That the bill for services and expenses were not separated or given in items, nor the kind of services or time spent in such services given.” The bill was then examined by the board and decided not-to be in accordance with the requirements of the statute. The resolution allowing the bill was thereupon rescinded, and the board adjourned until November 14,1891, for a rehearing of the relator on his claim. The chairman of the board was instructed by it to notify the relator of its action and to request him to itemize his bill. The chairman was also instructed to inquire into the employment of the relator and the facts and circumstances relating to his claim.

On the Tétli of November, 1891, the board met pursuant to such adjournment, and its chairman reported that he had notified the relator of the adjournment and requirements in relation to his bill, and that the relator informed him that he would itemize the bill for the expenses, but could not itemize it so far as it related to services. The relator did not appear before the board, but had a statement presented containing an itemized account of the expenses contained in his claim, but not as to the services. TIis claim for services was stated: “For services, $192.”

The chairman then stated that he had inquired of Eli P. Barrett, the then late supervisor of the town, as to the relator’s employment, or the employment of his firm, and that he was informed by Barrett that no amount of compensation was agreed upon, but that Barrett had been solicited by the relator and by other supervisors to place the matter in the relator’s hands, as the suits of the four different towns could be tried nearly as cheap as one, and it would make it less expensive for each town, and that the relator represented that the suits would not be expensive. The chairman also stated to the board that he had learned that there was no separate trial for the town of Hannibal, but that the suits by the towns of Hannibal, Oswego, Hastings and Sandy Creek were all tried and disposed of at one time, and the whole trial or hearing occupied less than one day.

At this time several of the citizens of the town of Hannibal again appeared before the board and objected to the auditing and allowing of the relator’s claim on the grounds: “ 1. The bill for services is not itemized according to law. 2. There is no length of time given in the bill in which service was performed for the town, nor the kind or items of such labor given; and, therefore, there is no evidence before the board of the value of the labor so performed, except .the statement in the affidavit of the relator. 3. That the bill is excessive and for a greater sum than the value of the labor-performed.” The board then inquired of N. B. Brower, a counselor of this court, as to the relator’s claim, and Brower informed it that he was familiar with the litigation and suit out of which the relator’s bill arose, and explained it to the board at length. He also stated that, aside from the expenses and what had been previously paid the relator or his firm, that $192 was a full and fair price and compensation for the preparation and trial of all four of the suits tried.

A motion was then made that the items of expenses contained in the relator’s bill be allowed at the full amount, which was eight, dollars, and that the claim for $192 dollars for services be rejected for the reason that it was not itemized and contained no evidence of’ value save the relator’s statement, and was, in the judgment of the board, excessive, but that forty-eight dollars be audited and allowed to the relator as that town’s share or part of the relator’s compensation for the preparation and trial aforesaid and for said claim. This motion was unanimously adopted, and the fifty-six dollars so audited and allowed was placed 'upon the town abstract of accounts allowed against the town, delivered to the supervisor of the town and presented'by him to the board of supervisors of Oswego county. The amount thereof was levied upon the town, collected and tendered to the relator, who refused to receive it.

On December 30, 1891, the relator obtained a writ of certiorari to review the action of the board, and asks this court to make a final order modifying the determination of the board by awarding to him-the sum of $200, with interest and costs, and directing the same to-be levied and collected from the taxable property of the town as-other towm charges are levied and collected.

The respondent contends that the determination of the board of audit upon the relator’s claim was, at most, a technical rejection of his claim, for the reason that it was not properly itemized, and, therefore, not such a final determination as would prevent a subsequent presentation of his claim for services, or would justify the issuing of a writ of certiorari. An examination of the determination made discloses that the board of audit allowed the portion of the relator’s bill or claim that related to the expenses at the full amount claimed, but rejected the portion of his claim for $192 for services, for the reason that it was not itemized and contained no-evidence of value except the relator’s statement, and was, in the judgment of the board, excessive. It also contained this further provision : But that $18 be audited and allowed to the relator as this town’s share or part of the relator’s compensation for the preparation and trial aforesaid, and for said claim.”

That the action of the board was final as to the expenses there can be no doubt; but of its' action in that respect no complaint is made. If the rejection of the relator’s claim for services had stood alone upon the ground of the insufficiency of the proof as to its nature, extent and value, the relator would doubtless have been in a position to have again presented his claim. The board, however, went farther, and while it rejected his claim for $192 upon that ground, it allowed him forty-eight dollars on his claim as the town’s share of the relator’s compensation. "When we consider the whole determination together, we are disposed to think that the action of the board of audit amounted to a rejection of the relator’s claim, except as to forty-eight dollars thereof allowed, and that it constituted a final determination of the matter on its merits.

Assuming that the determination of the auditors was final, the question is presented whether the relator can, by certiorari, obtain the relief sought, the certificate of audited accounts having been previously delivered to the supervisors. In Osterhoudt v. Rigney (98 N. Y., 222), Andrews, J., in discussing this question, said: But not only is the issuing of the writ discretionary, but to be effectual it must be prosecuted while the board of audit has jurisdiction of the proceedings. Its jurisdiction of accounts presented for audit terminates with the delivery to the supervisor of the schedule of audited accounts’, and after that has been done, a certiorari directed to the board would be fruitless. * * * The remedy by certiorari, therefore, must be taken, if at all, before the delivery of the certificate of audited accounts to the supervisor.” (See, also, People ex rel. Weekes v. Supervisors Queens Co., 82 N. Y., 275; People ex rel. Raplee v. Reddy, 43 Barb., 539; People ex rel. Gale v. Supervisors Rensselaer Co., 34 Hun, 266; People ex rel. Porter v. Tompkins, 40 id., 228.) As the certificate of audited accounts was delivered to the supervisor, and by him delivered to the board of supervisors of Oswego county before the writ in this case was issued, it would seem to follow that the proceedings herein should be dismissed, and the writ quashed.

Moreover, when we examine the merits of this controversy, it appears that the board of audit, when it examined the relator’s bill, found that his claim for services and expenses was not itemized, and contained nothing to show the Character of the labor performed, except that it was performed in the suit mentioned, nor to show the time spent either by his firm or the counsel in the case in the preparation and trial, or the value of the services of either the firm ■or the counsel. Under these circumstances the board rescinded its former action in allowing the claim, adjourned until November fourteenth for a rehearing of the relator on his bill, and instructed-its chairman to notify the relator fo its' action, and to request him to itemize his bill. Such notice was given. The relator itemized his bill as to the expenses, but not as to the services. He neither ■attended before the board, nor gave any evidence as to the value of the services rendered hy him. The board then made inquiries as to the services performed and their value, and thereupon allowed the relator the full value of the services according to the information received.

If the merits of this controversy were before us, it would be difficult to see how, upon the facts as shown by the appeal-book, the relator is entitled to the relief sought. The board of auditors seem to have acted in good faith, and diligently sought, as best they could, to inform themselves as to the value of the services rendered,

, while the relator neglected to furnish the board any evidence of the amount of services performed or their value.

"We are of the opinion that the writ should be quashed and the proceedings dismissed.

Hardin, P. J., and Merwin, J., concurred.

"Writ quashed and proceedings dismissed, with costs.