text:
    Sarah E. Nichols, Administratrix, etc., Respondent, v. Charles F. MacLean, Appellant.
    While the legislature may abolish an office, diminish the salary or change1 the mode of compensation during the term of an incumbent, subject only to constitutional restrictions, yet within these limits the right to an office carries with it the right to the emoluments, and an officer unlawfully dispossessed of his office may, upon his reinstatement therein, maintain an action against an intruder, to recover the damages resulting from the intrusion ; as a general rule, the salary or fees of the office received by the intruder are the measure of damages.

      Plaintiff was duly appointed police commissioner of the city of New York ; he duly qualified and entered upon .the performance of the duties of the office. Subsequently he was unlawfully removed by the mayor, and defendant appointed for the unexpired term. The latter, on presentation of his certificate of appointment, was recognized by the board of police commissioners, and assumed the duties of the office against the protests of plaintiff, who claimed the appointment was unauthorized. The proceedings of the mayor in removing plaintiff were reversed and annulled on certiora/ri, and thereupon he was again officially recognized by the board, and resumed the duties of his office ; during the time of his exclusion he was ready and willing to perform such duties. Defendant drew the salary of the office during the time he performed its duties. Held, that an action to recover the amount so received was maintainable ; and that the record in the certiorari proceedings was properly admitted ' in evidence against the defendant on the trial of the action.
    As to whether in such case the record, in the absence of collusion or fraud, is conclusive, quaere.

    The distinction between this case and one where the officer de jure has not been reinstated pointed out.

      It seems in the latter case the remedy of the officer is by action in the nature of a quo warranta ; but such an action will not lie when the intruder has voluntarily surrendered the office.
    An illegal exercise of the power of appointment to fill an assumed vacancy confers no additional protection upon the appointee because coupled with the fact of a prior summary removal of the rightful incumbent by the officer who made the appointment, in the exercise of a quasi judicial discretion.
    The doctrine which protects rights acquired on the faith of a judgment, notwithstanding its subsequent reversal, is not applicable to such a case.
    (Argued February 8, 1886;
    decided March 2, 1886.)
    Appeal from judgment of the General Term of the Supreme Court, in the first judicial department, entered upon an order made March 10, 1884, which affirmed a judgment in favor of plaintiff, entered upon a decision of the court on trial.
    This action was originally brought by Sydney P. Nichols to recover damages for the alleged unlawful usurpation by defendant, and receipt of the salary of the office of police commissioner of the city of New York, to which plaintiff claimed he was entitled.

      Pending the appeal to this court said plaintiff died, and the present plaintiff was substituted.
    Tho material facts are stated in the opinion.

      Samuel Hand & Malcolm Graham for appellant.
    The defendant not being a party to the certiorari proceedings, nor accepting a benefit thereby, is not bound by those proceedings. (People, ex rel. Gilchrist, v. Murray, 73 N. Y. 538; People, ex rel. Steinart, v. Anthony, 6 Hun, 142; Mayor v. Flagg, 6 Abb. 302; Rex v. Hebden, Andr. 388; Rex v. Grimes, 5 Burr. 2599; Rex v. Mayor of York, 5 D. & E. 66; People, ex rel. Corwin, v. Walter, 68 N. Y. 403; Dale v. Roosevelt, 1 Paige, 35; York v. Steele, 50 Barb. 397.) The court cannot here inquire whether the defendant was rightfully in office. (Mayor v. Flagg, 6 Abb. 303; Buffalo v. Mackay, 15 Hun, 204; People, ex rel. Steinart, v. Anthony, 6 id. 142; New Code, § 3349, subd. 11, § 3352; People, ex rel. Peabody, v. Att'y-Gen., 22 Barb. 114; People, ex rel. Demarest, v. Fairchild, 67 N. Y. 334; S. C. below, 8 Hun, 334; Mott v. Connelly, 50 Barb. 516; Hart v. Harvey, 5 Hill, 616; People, ex rel. Faile, v. Ferris, 76 N. Y. 326; Mickles v. Rochester City Bk., 11 Paige, 118; Demarest v. Wickham, 63 N. Y. 320; Buffalo v. Mackay, 15 Hun, 204; People v. A. & S. R. R. Co., 57 N. Y. 161; People, ex rel. Corwin, v. Walter, 68 id. 103; People v. Sup. Queens Co., 1 Hill, 195; Tappan v. Grey, 9 Paige, 507; Boyter v. Dodsworth, 6 T. R. 681; Howard v. Wood, 2 Lev. 245; 2 Show. 21; Tho. Jones, 196; Freem. 473, 478; Howard v. Queen’s Trustees and Att'y-Gen., 2 Mod. 173; Bradshaw v. Porter, not reported; Arris v. Stukely, 2 Mod. 260; Sergt. Rolle's Case, Clayt. 129; Lamini v. Dorrell, 2 Ld. Raym. 12, 17; Green v. Hewett, Peake’s N. P. 243; People v. Vail, 20 Wend. 12; Mott v. Connolly, 50 Barb. 516; Hart v. Harvey, 5 Hill, 616; Platt v. Stout, 14 Abb. 139; People v. Stout, 11 id. 17; Lawler v. Alton, 8 I. R. C. L. 162.) The certiorari proceedings do not excuse the want of judgment in yw Warranto. (Crosbie v. Hurley, 4 I. L. R. 225; People, ex rel. Gilchrist, v. Murray, 73 N. Y. 535.) Even judgment of ouster does not give an absolute right to the emoluments of the office. (People, ex rel. Burton, v. Vail, 20 Wend. 12; Dolan v. Mayor, etc., 68 N. Y. 274; McVeay v. Mayor, etc., 80 id. 185; Terhune v. Mayor, etc., 88 id. 247; Stuhr v. Curran, 44 N. J. L. 181.) Nichols did not own the office. (Smith v. Mayor, 5 N. Y. 285; Connor v. Mayor, 37 id. 518; Long v. Mayor, 81 id. 425.) Defendant was more than a de facto officer. (Foot v. Stiles, 57 N. Y. 403; People v. Van Slyke, 3 Cow. 237; People v. Pease, 27 N. Y. 45.) Rights acquired on the faith of a judgment are not affected by any irregularity of such judgment. (People v. Nichols, 79 N. Y. 582; People v. Cooper, 21 Hun, 517; People, ex rel. Gere, v. Whitlock, 92 N. Y. 191; People, ex rel. Keech, v. Thompson, 94 id. 451, 464; Hunt v. Hunt, 72 id. 217; Freem. on Judgm., §§ 104b, 135; Lange v. Benedict, 73 N. Y. 12; Marshalsea Case, 10 Co. 68, 78b; Tidd’s Pr. 1032; Olliett v. Bessey, Tho. Jones, 214; Groenvelt v. Beirwell, 1 Ld. Raym. 454; Saffrey v. Jones, 1 Barn. & Ad. 598; March v. Wooley, 5 M. & G. 675; Grey v. Cooksen, 16 East, 13; Andrews v. Mains, 1 Q. B. 3; Thomas v. Hudson, 14 M. & W. 353; Rex v. Leight, 10 A. & E. 398; Dawson v. Gregory, 7 Q. B. 756; Korn v. Mazuzan, 6 Hill, 44; Lamoine v. Caryl, 4 Den. 370; Roderigas v. E. R. Bank, 63 N. Y. 460; Lewis v. Dalton, 8 How. 99; Bumstead v. Read, 31 Barb. 661; Porter v. Purdy, 29 N. Y. 106; Barnes v. Harris, 4 id. 374; Van Steenburg v. Kurtz, 10 Wend. 167; Levison v. Burch, 4 Hun, 315; Von Rhade v. Von Rhade, 2 T. & C. 491; Cornell v. Lassells, 29 Wend. 77; Harmon v. Brotherson, 1 Den. 537; Easton v. Callender, 11 Wend. 90; Von Latham v. Libby, 38 Barb. 339; Pratt v. Bogardus, 49 id. 90; Savacool v. Boughton, 5 Wend. 170.) Rights acquired on the faith of a judgment are not affected by a reversal of such judgment, but do fully and entirely survive such reversal. (Dr. Drury's Case, 8 Co. 141b; Beverly v. Cornwall, Moore, 269; Appesly v. Ive, Cro. Jac. 645; Gold v. Strode, 3 Mod. 324; Phillips v. Biron, 1 Strange, 509; Turner v. Felgate, 2 Sid. 125; King v. Harrison, 15 East, 615;
      Case v. De Goes, 3 Caines, 261; Van Brunt v. Schenck, 11 Johns. 375; Dewey v. Osborn, 4 Cow. 329; Bank U. S. v. Bk. of Washington, 6 Pet. 18; Costar v. Peters, 7 Robt. 386; People, ex rel. Davis, v. Sturtevant, 9 N. Y. 263; Porter v. Purdy, 29 id. 106; Ebaugh v. Germ. Ref. Church, 3 E. D. Smith, 60; Woodcock v. Bennett, 1 Cow. 711; Place v. Reilly, 98 N. Y. 1; Blakely v. Calderer, 15 id. 97; Wood v. Jackson, 8 Wend. 9; Holden v. Sackett, 12 Abb. 473; Hennig v. Parnett, 4 Daly, 543; Clark v. Davenport, 1 Bosw. 95; McJilton v. Love, 13 Ill. 486; Loring v. Illsley, 1 Cal. 24; Bk. of Ky. v. Van Meter, 10 B. Monr. 66; Frost v. McLeod, 19 La. Ann. 69; Rogers v. Evans, 8 Ga. 143; Boggers v. Howard, 40 Tex. 153; McDonald v. Napier, 14 Ga. 89; Reno v. Pinder, 20 N. Y. 298; Bascom v. Smith, 31 id. 595; People v. Police Comm’rs, 98 id. 332.) Nichols by his acts acquiesced in MacLean’s occupation of the office. (Hadley v. Mayor, 33 N. Y. 603; People v. Murray, 73 id. 535; McVeany v. Mayor, 80 id. 185; Sadler v. Evans, 4 Burr. 1984.) If the plaintiff has any remedy, it is against the parties to the removal. (Terhune v. Mayor, 88 N. Y. 24; Hover v. Backhoof, 44 id. 113; Bennett v. Whitney, 94 id. 302.)
    John D. Townsend for respondent.
    The proceedings brought in the name of the people, to-wit, the certiorari to review the judicial action of the mayor, was a proceeding m rem. (2 Phill. on Ev. 262, 266; Freeman on Judgments, 504, § 606; People, ex rel. Steinart, v. Anthony, 6 Hun, 142; Rex v. Mayor of York, 5 Durnf. & East, 66; Mayor, etc., v. Flagg, 6 Abb. 296, 302; McVeany v. Mayor, etc., 80 N. Y. 189; Pitman v. Town of Albany, 34 N. H. 577-582.) No action of gw ic«rnwiio was necessary in this case. ° The proceedings upon which the mayor pretended to have removed the plaintiff and appointed the defendant to fill his place were pronounced void by this court, and such judgment was affirmed at General Term in an action brqught in the name of the people. (Hunter v. Chandler, 10 Am. L. R. 440; In re Harris, 6 A. & E. 475;
      People, ex rel. Taylor, v. Thompson, 16 Wend. 654; People, ex rel. Devlin, v. Peabody, 6 Abb. Pr. 234; Mayor v. Flagg, id. 296; Dorsey v. Smith, 28 Cal. 21; People v. Miller, 24 Mich. 460; Comstock v. City of Grand Rapids, 4 id. 397; People, ex rel. Morton, v. Tiernan, 8 Abb. Pr. 359.) There is nothing in the Code which prevents the plaintiff from bringing his action against defendant for money received. (§§ 1949-1953, Code; Crittenden v. Wilson, 5 Cow. 165; Stafford v. Ingersoll, 3 Hill, 39; Sedg. on Stat. and Const. Law, 402; Comyn’s Dig. 93.) In a common-law action for the recovery of fees of an office, the title to the office may be tried in a court of law. (Howard v. Wood, 2 Levinz, 245; Boyter v. Dodworth, 6 Tenn. 681; Astor v. Woodward, 2 Mod. 95, 96; 1 Vent. 269; 1 Freem. 429; Green v. Hewett, Peake’s Nisi Prius Cas. 243; Lightly v. Clinton, 1 Taunt. 112, 114, 115; Allen v. McKeen, 1 Sim. 277-317; Platt v. Stout, 14 Abb. Pr. 179; Mayfield v. Moore, 53 Ill. 429; Palmer v. Foley, 45 How. Pr. 110; Tappan v. Grey, 7 Hill, 259.) The legal title to the office of police commissioner, as between the plaintiff and defendant in this action, having been determined in favor of the plaintiff by the certiorari proceedings brought against the mayor, the plaintiff is justified in claiming that the services of the defendant to the city were rendered for him, and that the salary the defendant drew for such services belonged to the plaintiff. (Dolan v. Mayor, etc., 68 N. Y. 278, 279, 283; Harwood v. Wood, 2 Lev. 245; Glosbeck v. Lyons, 20 Ind. 1.)
   Andrews, J.

The facts, upon which this controversy depends, are few and substantially undisputed. The plaintiff was duly appointed police commissioner of the city of New York, for a term of six years from May 1, 1876, and duly qualified and entered upon and discharged the duties of the office until April 18, 1879. On that day the mayor of the city appointed the defendant, MacLean police commissioner for the unexpired term of the plaintiff Nichols, the certificate of appointment reciting that the appointment was made by the mayor in pursuance of chapter 300 of the Laws of 1874, in place of Sidney P. Nichols, removed. Prior to the appointment of the defendant MacLean, the mayor had preferred charges against Nichols of official delinquency, upon which such proceedings were had that on the 5th day of April, 1879, the mayor made a certificate in writing removing the plaintiff from his office of police commissioner, which certificate with the reasons therefor he transmitted to the governor, who on the 17th day of April, 1879, approved in writing of such removal. The plaintiff in June, 1879, applied for a writ of certiorari, to review the proceedings removing him, which was issued August 12,1879, addressed to the mayor who made return thereto, and on February 11,1880, judgment was rendered in the proceeding declaring that the proceedings of the mayor for the removal of Nichols and his judgment of removal “ be and are hereby reversed, and in all things held for naught.” The judgment, as appears from the opinion delivered by the court, proceeded upon the ground that no evidence was given before the mayor to sustain the charges made against Nichols, and that he was denied the right to be heal’d by counsel. The defendant, MacLean, on the 18th day of April, 1879, on presenting his certificate of appointment was recognized by the board of police commissioners as commissioner in place of Nichols, and thereupon assumed the duties of the office and continued to act as police commissioner until February 7, 1880, on which day the decision of the court in the certiorari proceeding having been called to the attention of the board, Nichols was officially recognized as commissioner, and on that day resumed, and thereafter continued to discharge the duties of the office. During the period between the 17th of April, 1879, and the 7th of April, 1880, the defendant drew and received from the city of New York, $4,700, the salary for that time of the office of police commissioner. It is found that the plaintiff during the time he was excluded from office was' ready and willing to perform the duties thereof, and it was proved that the plaintiff on the 18th day of April, 1879, upon presentation by the defendant of his certificate of appointment protested to the defendant that his removal was unauthorized and that there was no vacancy to be filled by the mayor. This action is brought to recover the salary received by the defendant during the time he served as police commissioner under the appointment of the mayor, and the sole question is whether, upon the facts found, the action lies.

It is convenient to consider in the outset what right the plaintiff acquired by virtue of his appointment as police commis sioner in May, 1876. The term and salary of the office were fixed by statute. The plaintiff was entitled by virtue of his appointment, to a term of six years, and to an annual salary of $6,000, subject, however, to removal from office by the mayor for cause, after an opportunity tó be heard. (Laws 1873, chap. 335, § 25.) The plaintiff could not be deprived of his office or his salary, except under authority of law. His right to the possession and emoluments of the office unless forfeited by his misconduct or his office was voluntarily abandoned or taken away by law, was as perfect a right as the title of any individual to his property, real or personal.” (Sanford, J., Conner v. The City, 2 Sandf. 370.) It is true that in this country offices are not hereditaments, nor are they held by grant. The right to hold an office and to receive the emoluments belonging to it does not grow out of any contract with the State, nor is an office property in the same sense that cattle or land are the property of the owner. It is, therefore, the settled doctrine that an officer acquires no vested right to have an office continued during the time for which he was elected or appointed, nor to have the compensation remain unchanged. The legislature may abolish an office during the term of an incumbent, or diminish the salary, or change the mode of compensation, subject only to constitutional restrictions. (Conner v. Mayor, etc., 5 N. Y. 285.) But within these acknowledged limits, the right to an office carries with it the right to the emoluments of the office. An office has a pecuniary value, although primarily it is an agency for public purposes. The doctrine that the right to the emoluments of an office follows the true title, has been repeatedly declared in this State. (Allen, J., People v. Tieman, 30 Barb. 193; Dolan v. The Mayor, 68 N. Y. 274; McVeany v. The Mayor, 80 id. 185.) And these decisions are enforced by the cases which hold that in an action by an officer to recover fees, his title may be put in issue, and that an action therefor cannot be maintained by an officer de facto only. (Bronson, J., 1 Denio, 579, and cases cited; People v. The Co. of Bedford, 7 S. & R. 392.) The plaintiff, therefore, by his appointment acquired a right to hold the office of police commissioner for six years, and to receive the salary, subject to removal upon a hearing, for cause, which right, although not technically property, was valuable and is under the protection of the law. From a very early period of the law, the invasion of a right to hold and exercise the duties of a public office has been recognized as a legal wrong for which the law affords a remedy. The writ of quo warranta was an ancient writ to try the right of one holding a public office (2 Bl. Com. 263), and in England from an early day, an action for money had and received would lie in behalf of one entitled to an office, to recover the accustomed fees of the office received by an intruder. (Harwood v. Wood, 2 Lev. 245; Greene v. Hewitt, Peake’s N. P. 243; Boyter v. Dodsworth, 6 Term R. 681; 1 Selw. N. P. 81.) That the action of the mayor in removing the plaintiff was wrongful, was adjudicated in the certiorari proceedings, and from the judgment therein, no appeal was taken. This court also decided in People, ex rel. Mayor, v. Nichols (79 N. Y. 582), which was a proceeding for prohibition, that a certiorari was a proper remedy to review the action of the mayor. The effect of the judgment in the certiorari was to annul the mayor’s proceedings, and was followed by a reinstatement of the plaintiff in the office from which he had been unlawfully removed. Whether the judgment ipso facto worked a reinstatement of the plaintiff, we need not consider. The defendant voluntarily surrendered the office to the plaintiff, or. at least he acquiesced in his resuming possession. The record in the certiorari proceedings was admitted in evidence on the trial in this case against the objection of the defendant and it is claimed that the ruling is erroneous for the reason that the defendant was not a party to the proceedings and that as to him the judgment therein did not establish that the removal was wrongful. The general rule that the estoppel of a judgment extends only to parties and privies is well settled. It is not always easy to determine who are privies within the rule. The certiorari as this court held was a proper proceeding. The mayor under the statute was vested with the power of removal to be exercised in a particular manner and under certain limitations affecting the right of the person whose removal was contemplated. These limitations were not observed, and the removal was, therefore, held to be unauthorized. The defendant held the office under an appointment by the mayor which on its face declared that he was appointed to fill a vacancy caused by the removal of Nichols. The defendant derived his title from the mayor, and the mayor, as was adjudged in the certiorari proceedings had at the time no power to make an appointment, because there was no vacancy. It has been held that where the title to a corporate office has been determined in a litigation between conflicting claimants in a proceeding by quo warranta, the adjudication is competent evidence against the corporation in an action for salary, or to compel the corporation to certify an election, and also that where the title "to office of a person exercising the power of appointment has been adjudged against him, the judgment is admissible against his appointee on the ground that his title must abide by that of the person from whom he derives title. (McVeaney v. The Mayor, supra; Rex v. Hibden, And. 388; Rex v. Grimes, 5 Burr. 2598; Lord Kenton in Rex v. The Mayor of York, 5 Term R. 66.) These cases, although not precisely in point are analogous to the one before us. The defendant derives title under an appointment by the mayor; it has been adjudged in a proper proceeding against the mayor that he had no authority to make the appointment and that the plaintiff was improperly removed; the proceeding had some of the characteristics of a proceeding m rem j it was an investigation made under competent authority, in the name of the people, concerning matters of public as well as private interest, and to ascertain the status of the plaintiff. We think the record was competent evidence against the defendant. Whether it was conclusive in the absence of collusion or fraud need not be determined, as no affirmative evidence was offered by the defendant in support of his title outside of the formal papers. It is further insisted that in this State, the title to an office cannot be tried in an action against an intruder for the salary, and that it can be determined only in a proceeding by quo warranto or since the Code by a direct action in the nature of a quo warranta instituted by the attorney-general. The remedy by information in the nature of a quo warrcmto, under the Revised Statutes, authorized a judgment not only upon the right of the defendant, but also upon the right of the party averred to be entitled (2 Rev. Stat. 582, § 31), and in case the right of the claimant was established by the judgment he was authorized upon filing a suggestion to recover the damages sustained by reason of the usurpation of the defendant (§ 34). The courts held that they would not at the instance of a person out of possession of an office try the title to the office by mandamus or other proceeding, but would leave him to his remedy by information, and it has been said in several cases that the title could only he tried in that proceeding. (People v. Stevens, 5 Hill, 616; People v. Vail, 20 Wend. 12; People v. Ferris, 76 N. Y. 326; People v. Lane, 55 id. 217.) These cases proceed upon an intelligible principle. It would be productive of great inconvenience if a person out of possession should be permitted before ousting the person in possession and establishing his own title by a direct proceeding, to maintain añ action against the intruder for the salary the result of which would neither put the intruder out of, nor the plaintiff into the office, and to have the title to an office decided in a collateral proceeding in which the people were not represented. But in this case the de jure officer has been restored to the possession from which he was wrongfully ejected. It has been judicially determined in a proceeding in behalf of the people that his right to the office was never legally interrupted. The defendant was.not in possession when the action was commenced, and an action under the Code to eject him from the office could not be maintained. Where the further prosecution of the proceeding by quo warromto is necessary to accomplish a purpose beyond the ouster of the defendant, the proceeding does not necessarily abate by the voluntary surrender of the office by the defendant after the proceeding is instituted. (Queen v. Blizard, L. R., 2 Q. B. 55.) It is however the general rule that quo warranto will not lie where the office is vacant. (Rex v. Whitwell, 5 Term R. 85.) But it is insisted that, conceding the unlawful expulsion, and the intrusion by the defendant, it is not res adjudieata in this State that an action can be maintained by the party dispossessed, against the intruder, to recover the emoluments of the office received by him. In the case of Dolan v. Mayor, etc. (supra), it was assumed that such an action could be maintained, and authorities were cited to maintain the proposition. The determination of this question was not, perhaps, essential to sustain the judgment in that case. But we think the doctrine is well founded in reason and authority. The plaintiff being the officer de jure, was entitled to earn the salary. It is true that he did not render the service fqr which the salary is the compensation. But he was ready and willing to render it, and was prevented by the conjoint acts of the mayor and the defendant. The case of McVeany v. The Mayor (supra) shows that the right to the salary of an office is not necessarily dependent upon the actual rendition of service by the claimant. In that case the plaintiff was allowed to recover from the city, salary from the time judgment of ouster against the incumbent was pronounced, although the plaintiff rendered no personal service and the salary had been’ paid to the intruder. In the Dolan Case (supra), the claimant recovered the salary unpaid during the time Keating discharged the duties of the office. The provisions of the Eevised Statutes to which reference has been made, allowing the recovery of damages by the officer de ju,re against an intruder, proceed upon the assumption that the former may recover of the latter what he has lost by the usurpation. The revisers in their note upon this subject (5 Edm. St., p. 774), say that it was intended to enlarge the scope of the remedy by information, so as “ to provide for the recovery of the fees received by the defendant.” The exclusion of a de jure officer from his office is a legal wrong committed by the intruder. In a legal view it is immaterial that the defendant may have acted in good faith, or .that he supposed he had the better title. A good motive is not an adequate answer to a claim for indemnity for a violated right. There is a great preponderance of authority in support of the doctrine that the de jure officer can recover against an intruder, the damages resulting from the intrusion, and that as a general rule, the salary annexed to the office and received by the defendant measures the loss. (Dolan v. Mayor, etc., supra; Lawlor v. Alton, L. R., 8 Ir. 160; Glascock v. Lyons, 20 Ind. 1; Douglass v. State, 31 id. 429; People v. Miller, 24 Mich. 458; Dorsey v. Smith, 28 Cal. 21; Segan v. Crenshaw, 10 La. Ann. 239; U. S. v. Addison, 6 Wall. 291.) But as a final point the defendant invokes for his protection, the doctrine which protects rights acquired on- the faith of a judgment, notwithstanding its subsequent reversal. We think this doctrine is inapplicable to#the case. The appointment of the mayor and the defendant’s assumption of office thereunder, made him an officer de facto rqerely. “An officer de facto? says Chancellor Walworth, “is one who comes into a legal and constitutional office, by color of a legal appointment or election to that office.” (People v. White, 24 Wend. 518, 539.) The proceeding of the mayor in removing Nichols, was so far judicial as to authorize it to be reviewed on certiorari. It was not a proceeding in a court of justice under the forms and solemnities of judicial proceedings in courts, to establish the rights of litigants. The defendant did not acquire his title to the office under the so-called judgment rendered by the mayor, but under a separate and distinct proceeding subsequent thereto, by which the defendant became invested with the character of an officer de facto. It is abundantly settled by authority that an officer de facto can as a general rule assert no right of property, and that his acts are void as to himself, unless he is also an officer de jure. (Greene v. Burke, 23 Wend. 490; People v. Nostrand, 46 N. Y. 375; Bronson, J., in People v. Hopson, supra.) In Cro. Eliz. 699, the doctrine is tersely stated : “ The act of an officer de facto, when it is for his own benefit, is void; because he shall not take advantage of his own want of title, which he must be conusant of; but where it is for the benefit of strangers, or the public, who are presumed to be ignorant of such defect of title, it is good.” I have been unable, after a diligent examination, to find any case which sustains the claim that an illegal exercise of the power of appointment to office, by an executive officer, to fill an assumed vacancy, confers additional protection upon the appointee, because coupled with the fact of a prior summary removal of the rightful incumbent by the same officer, in the exercise of a quasi judicial discretion. In the Dolan Case (supra), the appointment of Keating was made under an ambiguous statute, under a claim of right, and was regular in form, but the court were of opinion that this would not protect him against a suit by the officer de jure to recover the salary received by him. We think there is no solid distinction between the cases. The defendant took the risk of the validity of his title, and the loss should fall upon him rather than upon the plaintiff.

Upon the whole case we are of opinion that the judgment should be affirmed.

All concur, except Rafaelo and Miller, JJ., not voting.

Judgment affirmed.


source: Caselaw Access Project

author: Danforth, J.

license: Public Domain

text:
    The People, ex rel. John Swinburne, Respondent, v. Michael N. Nolan, Appellant.
    In an action under the Code of Civil Procedure, in the nature of S quo warranta (§§ 1988, 1948), in which the person alleged to be rightfully entitled to the office was joined with the people as relator, after final judgment against defendant and in favor of the claimant, the court, in June, 1883, upon motion allowed a supplemental complaint claiming damages in consequence of defendant’s intrusion into the office, with leave to answer, and directing the action to stand over until a day named. Meld no error; that under the provision of said Code (§ 1953, prior to its amendment by chap. 399, Laws of 1884), as it then stood, which authorized a recovery “ in the same action against the defendant,” of the damages sustained by the person entitled to the office, and under the provision of the Code allowing supplemental pleadings (§ 544), the order was justified.
    The relator in such an action is entitled rto recover as damages the salary or emoluments received by defendant while he unlawfully held the office.
    As to whether, under any circumstances, these damages may be diminished, qumre.

    Taking the oath and a demand of possession of the office are not conditions precedent to the relator’s right of recovery ; it is not part of the plaintiffs’ case to show that the relator was prepared to enter upon the duties of the office, nor is it any defense that conditions precedent to their performance have not been observed by him.

      Merrill v. Village of P. (71 N. T. 309), People, ex rel. Williamson v. McKinney (52 id. 374), distinguished.
    (Argued February 9, 1886;
    decided March 2, 1886.)
    Appeal from judgment of the General Term of the Supreme Court, in the third judicial department, entered upon an order made May 6,1884, which affirmed a judgment in favor of plaintiff.
    This was an action in the nature of a quo warranta, to try the title to the office of mayor of the city of Albany.
    The complaint alleged that the relator was duly elected to the office, and that defendant had illegally intruded into and usurped the same. The relief asked was that the relator be adjudged entitled to' the office, and that a fine of $2,000 be imposed upon the defendant. There was no allegation in the complaint averring or claiming damages. The issues joined were tried, and resulted in a verdict for the relator. Judgment was entered thereon. Afterward, and on June 29, 1883, upon notice and hearing of both parties, an order was granted, granting the plaintiffs leave to file and serve a supplemental complaint, claiming damages, with leave to the defendant to file an answer thereto, and that the action stand over to a day named.

      E. Cowntrymam, for appellant.
    At common law, the writ and information in the nature of quo warranta were merely proceedings in behalf of the public to compel officers to produce and prove their official titles. There could be no judgment except of ouster or seizure, not even for costs. (Rex v. Williams, Mich. 31 G. 2; Bull. N. P. 211; 9 Anne, chap. 20, §§ 4, 5; 1 R. Laws, 108, 109, §§ 4, 5; 2 R. S. 582, 583, §§ 34-38; Code of Pro., §§ 428, 432, 434, 436, 439; Code of Civ. Pro., §§ 1983, 1948, 1953.) The Code of Civil Procedure has prescribed the exclusive rules of pleading and practice for all civil actions. (Code of Civ. Pro., §§ 478, 481, 484, 518, 1984.) The action to recover an office being an ordinary civil action, the same rules of pleading and practice prevail as in other actions. (People v. Rider, 12 N. Y. 433; People v. Ransom, 2 id. 490; Moak’s Van Santv. Pl 562; 787, 788; Field v. Mayor of N. Y., 6 N. Y. 179, 189; Bailey v. Rider, 10 id. 363; People v. Nolan, 30 Hun, 484, 487; Code of Pro., § 428; Code of Civ. Pro., § 1983.) As there was no fraudulent usurpation of the office by the defendant, but as he held it in good faith, having reason to believe that he was elected, and under color of right, and actually discharged its duties while he drew the salary, etc.; and as there was no allegation or proof that the relator had ever qualified by taking the requisite oath of office, nor that he had ever demanded possession from the defendant, the defendant was entitled to retain the salary as against the relator. (Stuhr v. Connor, 44 N. J. L. 181; Smith v. Mayor, etc., 37 N. Y. 518; Wayne Co. v. Benoit, 20 Mich. 176, 185; Connor v. Mayor, etc., 5 N. Y. 285; Queen v. Mayor, etc., 12 Ad. & El. 702; Wilcox v. Smith, 5 Wend. 231; Plymouth v. Painter, 17 Conn. 585.) It being found as a fact by the trial court that the defendant immediately after the charter election was duly declared to be elected to the said office of mayor by the common council, in whom such power was vested by law, and that he had duly qualified and discharged the duties of the office during the period for which he received the salary, he was clearly the de facto mayor, etc. (Merritt v. Village of Port Chester, 71 N. Y. 309, 312; People, ex rel. Williams, v. McKinney, 52 id. 374, 380; Mc-

      Veany v. Mayor, etc., 80 id. 195; People, ex rel. Zeiser, v. Kessel, 10 Weekly Dig. 209; Platt v. Stout, 14 Abb. 178; McVeany v. Mayor, etc., 80 N. Y. 185, 195.) The officer de jure may recover his damages for the wrong against the fixed usurper; and the amount of salary, if not the.fixed measure, may be considered in assessing the damages. (Dolan v. Mayor, etc., 68 N. Y. 282.)

      Henry W. Johnson for respondent.
    At the time this action was commenced, and at the time it was tried, the law expressly provided that the damages of the relator might be recovered in the same action in which the title to the office is tried. (Code of Civ. Pro., § 1953.) Under the former Code a separate action was required. (People, ex rel. Henderson, v. Snedecker, 3 Abb. Pr. 233.) The proceedings in presenting to the court the question of the damages sustained by the relator were not only appropriate but were directly sanctioned by law, and they preserved every right of the defendant. (People v. Hall, 80 N. Y. 117; People v. Thatcher, 55 id. 529; People, ex rel. Smith, v. Pease, 30 Barb. 591; 1 R. L. 108, § 5; Revisers’ notes to art. 2, tit. 2, chap. 9 of part 3, R. S.; Code of Pro., §§432, 435, 436, 437, 439; Code of Civ. Pro., §§ 1948, 1949, 1951, 1952, 1953, 1956 ; 2 R. S., marg. 583, § 36 ; 1 Tidd’s Pr. 635 ; Gould’s Plead. 37; DeLisle v. Hunt, 36 Hun, 620; 2 Wait’s Pr. 468 and cases there cited.) There was no error in ordering judgment in favor of the relator for the amount of salary admitted in the defendant’s answer to have been received by him after suit brought. (Code of Civ. Pro., § 1949; State v. Porter, 58 Iowa, 19; Terhune v. Mayor, etc., 88 N. Y. 251; Dolan v. Mayor, etc., id. 282; U. S. v. Addison, 22 How. [U. S.] 174; Columbian Ins. Co. v. Wheelwright, 7 Wheat. 534; U. S. v. Addison, 6 Wall. 292; People v. Miller, 2 Mich. 459; Glasbeck v. Lyons, 20 Ind. 1; McVeany v. Mayor etc., 80 N. Y. 185.)
   Danforth, J.

The questions presented on this appeal were decided after much consideration by the judges of the Supreme Court, and in the conclusion reached we concur. They relate first, to the form of procedure; second, to the measure of damages. The first is regulated by the Code, which in terms declares the writ of quo warranta and proceedings of like nature to have been abolished,” but provides that the relief formerly obtained thereby may he had by action where an appropriate action therefor is prescribed in that act (Code of Civ. Pro., tit. 1, chap. 16, art. 6, § 1983,) and, under its provisions, where, as in the present case, the relator is a claimant of the office, and a party to the action, the trial involves his right as well as that of the defendant, and judgment may be rendered upon the rights of both, or only upon the right of the defendant, as justice requires. (§ 1949.) If the former, and final judgment was in favor of the claimant, then as the law stood when these proceedings were pending, he might recover in the same action against the defendant^ the damages which he had sustained in consequence of the defendant’s usurpation or intrusion into and unlawful holding or exercise of the office. (§ 1953.) Prior to this enactment, the damages were recoverable by action ” (Code of Pro., § 439), and afterward by amendment in 1884, the section referred to (§ 1953) was changed so as to restore the reading of the former act, and the remedy under it would no doubt be by a new and original action. The difficulty in the present case grows out of the peculiar reading of the statute in force when the question arose. But its language was plain, and permissive, if not imperative. It was no doubt intended to assimilate the new practice to the remedy given by the Revised Statutes, through which the successful relator could, by a suggestion made and filed within one year after judgment in the quo warranta proceedings and trial, upon issue joined therein, recover the damages which he might have sustained by reason of such usurpation. (1 R. S., tit. 2, pt. 3, chap. 9, §§ 34-38.) That mode of practice, however, was abolished not only by the general language of the Code above cited, but by the express repeal of the statute which formulated it (Laws of 1877, chap. 417; Laws of 1880, chap. 245), and section 1953 of the Code {supra), as originally enacted, appears to have been framed to take its place. If there be an omission to fully carry out that intention by new legislation, it was still the duty of the court, if possible, to apply the general rules of pleading in such manner as to make effectual the privilege given by the section in question, and prevent a failure of justice. It was so declared by the Code of Procedure (§ 468), which, in cases not provided for, permitted a resort to the practice theretofore in use. That section is not to be found in the present Code, and it might,' therefore, be expected that under the general provisions of the act, every statutory right may be completely protected and enforced. To that end, after verdict and judgment establishing the relator’s right to the office of mayor, the court below, upon motion, allowed a supplemental complaint claiming damages in consequence of the defendant’s intrusion into that office, with leave to answer, and directing the action to stand over until a day named. These things were done, and upon the issue so found, a tidal was had and damages assessed. The appellant’s objection is that the claim for damages should have been made in the original complaint, but concedes that if it had been, “that issue could not be tried until after judgment rendered in favor of his title to the office.”

The question then is reduced to this: Whether the court had power to allow that to be done after judgment, which might without leave have been done before, but which at whatever time done could only be made available after a prior issue had been disposed of. We think it had. The allegations essential to the claim for damages were not material upon the former issue, and if inserted in the original complaint, would not have affected it. By the Code (§ 544), a supplemental pleading in any action can be allowed in addition to the former pleading, setting up facts occurring, and a judgment rendered subsequent thereto, determining the matters in controversy, or a part thereof. It may well be that these general provisions were deemed sufficient to include the authority conferred by the Revised Statutes in the special case of a quo warranta. But whether they were or not, we think they justify the order of the court in this case. The Code required the damages, if any, to be assessed in the “same action,” but did not limit the power of the court to allow allegations in regard thereto, at such time as a just regard to the rights of the parties seemed to require, or even to devise a new form of proceeding, if necessary, to carry into effect its power and jurisdiction.

As to the second question : The charter of the city of Albany provided for the election of mayor, the duration of his office for the term of two years, commencing on the first Tuesday of May next after his election, and declared that he should “ receive an annual salary of $3,500, to be paid monthly by the chamberlain.” (Laws of 1870, chap. 77, tit. 4, § 1.) The judgment in this case determines that the office of mayor legally vested in the relator by virtue of an election held on the 11th of April, 1882 ; that the defendant was not then elected, but at the commencement of the action (May 2, 1882), was and since has been wrongfully holding that office. By his answer the defendant admits the receipt from the chamberlain of the salary pertaining to the office of mayor, to the amount of $4,005.43, from May 2, 1882, to the 22d of June, 1883, three days before the judgment of ouster went against him. This sum has been adjudged to the relator. We think properly. By section 1949 of the Code of Civil Procedure, the defendant, upon the receipt of the emoluments of office, and proof of the existence of such facts as have now been conclusively established, was liable to arrest on the application of the plaintiff, and the damages sustained by the relator, for which a recovery is permitted in the same action by section 1953, must be those of like character. Indeed it is difficult to see what other damages could be allowed in such a case.

The learned counsel for the appellant argues that taking the oath of office and demand of possession of the office were conditions precedent to the relator’s right of recovery. The statute is otherwise. By the election he was rightfully entitled to the office, and for that reason properly joined with the people in the action against the intruder. , (§ 1949, Code of Civ. Pro.) It was not part of the plaintiff's case to show that he was prepared to enter upon its duties, nor is it any defense that conditions precedent to their performance had not been observed. If the action were against the city for salary, the question would be different, and the cases of Merritt v. Village of Port Chester (71 N. Y. 309), and People, ex rel. Williamson, v. McKinney (52 id. 374), referred to by the appellant, might be pertinent. Here they have no application, while that of McVeany (80 N. Y. 195) aids the respondent. It must, in view of that and other cases, be conceded that payment by the city to Holán, while holding the office and discharging its duties, would be a defense to an action brought against it by the rightful officer to recover the same salary, but as between that officer and Holán, the salary has been .properly deemed to have been wrongfully received by the latter, and that for it he should make restitution. In Dolan v. Mayor, etc. (68 N. Y. 274), it was said that the amount of salary, if not the fixed measure, might he considered by the jury in assessing the damages. In Terhune v. Mayor, etc. (88 N. Y. 247), the remedy suggested was an action against the intruder “ to recover the salary.” To the same effect is the Mg Veany Case {supra), and while all three treat the services rendered as the consideration of a right to the salary, they regard those services when rendered by an intruder, as voluntarily performed and to be “ counted for the good ” of the rightful claimant, and in the Dolan Case {supra) it is also said that if an officer merely de facto, obtains compensation for that service he is liable in an action for money had and received by the officer de jure to recover it. So in the case of The United States for the use of Crawford v. Addison (6 Wall. 291), where the facts were quite like those before us, it was held that the measure of damages in such an action was the salary received by the intruding party. Such also is our decision in Nichols v. McLean, just (February 27, 1886) decided. If, under any circumstances, they may be .diminished, no foundation was laid for such inquiry in the court below, nor do facts warranting it appear here.

We think the appeal should fail and the judgment of the court below be affirmed, with costs.

All concur.

Judgment affirmed.

        Ante, p. 526.


author: Ruger, Ch. J.

text:
    Frederick Benzing, Appellant, v. Steinway and Sons. Respondents.
    A master may not exempt himself from liability for an omission of the duty resting upon him to furnish, for the use of his servants, safe, sound and suitable tools, implements, appliances and machinery, by delegating its performance to another ; the latter stands in the place of the master in discharging the duty, and for his neglect therein the master is responsible.
    Plaintiff, an employe in defendant’s factory, was called from his work to assist in putting up girders to support a roof in another part of the factory. This was not in the line of his general employment, and he had no previous knowledge of the appliances used in the prosecution of the work. He was ordered by the foreman to get upon a platform; he asked the foreman if it was safe, and was assured by him that »it was. Plaintiff went upon the platform; one of the boards composing it, which was defective, broke, and he fell and was injured; he had no opportunity to examine tlie platform, and the evidence left it in doubt whether, upon an examination, the defect could have been discovered. In an action to recover damages for the injury, the complaint was dismissed on the ground that the neglect, if any, was that of a co-servant, for which the master was not liable. Meld error.
    (Argued February 10, 1886;
    decided March 2, 1886.)
    Appeal from judgment of the General Term of the Court of Common Pleas in and for the city and county of New York, entered upon an order made November 9,1883, which affirmed a judgment in favor of defendants, entered upon an order dismissing plaintiffs complaint on trial.
    This action was brought to recover damages for injuries alleged to have been caused by defendants’ negligence.
    The material facts are stated in the opinion.

      Wm. H. Arnoux for appellant.
    The court erred in dismissing the complaint; the case should have been submitted to the jury. (Plank v. N. Y. C., etc., R. R., 60 N. Y. 607; Mehan v. Syracuse, etc., R. R. Co., 73 id. 585; DeForest v. Jewett, 88 id. 269; Ellis v. N. Y., etc., R. R. Co., 95 id. 546, 553; Salters v. D. & H. C. Co., 3 Hun, 338.) The maxim qxui facit per alium, facit per se, applies to a master in providing machinery and appliances for the use of his servants, and he is estopped from denying liability in case of injury resulting from defects therein while used in his service. (Cone v. D., L. & W. R. R. Co., 86 N. Y. 206, 210; Fuller v. Jewett, 80 id. 46; Mann v. President, etc., 91 id. 501; Murphy v. B. & A. R. R. Co., 88 id. 146, 151; Slater v. Jewett, 85 id. 61, 70, 71; Laning v. N. Y. C. R. R. Co., 49 id. 521; Holmes v. Clark, 10 Wend. 405; Kain v. Smith, 80 N. Y. 458; 25 Hun, 148; Corcoran v. Holbrook, 59 N. Y. 517, 520; Dobiecki v. Sharp, 88 id. 208; Hoffnagle v. N. Y. C. R. R. Co., 55 id. 610; Flike v. B. & A. R. R. Co., 53 id. 553; DeGraff v. N. Y. C, etc., R. R. Co., 76 id. 125; Gunter v. Graniteville Mfg. Co., 18 S. C. 182; 44 Am. Rep. 573; Hough v. Texas & P. R. R. Co., 100 U. S. 213; 9 Am. Rep. 93; 11 Fed. Rep. 621; Hough v. Ry. Co., 100 U. S. 213; Wabash Ry. v. McDaniel, 107 id. 454.) The implied contract to have the machinery in such safe and proper condition as not to expose the servant to unnecessary risk is the foundation of the master’s liability. (Coombs v. New Bedford Cordage Co., 102 Mass. 572; 3 Am. Rep. 506, 511; Chicago & Alton R. R. Co. v. Shannon, 43 Ill. 338; C. & N. W. R. R. Co. v. Sweet, 45 id. 197; Schooner Norway v. Jursen, 52 id. 373; Ill. C. R. R. Co. v. Welch, id. 183; C. & N. W. R. R.Co. v. Sweet, 45 id. 197; C., B. & Q. R. R. Co. v. Gregory, 58 id. 272; Ryan v. C. & N. W R. R. Co., 60 id. 171; Miller v. U. P. R. R. Co., 12 Fed. Rep. 600; Toledo, W. & P. R. R. Co. v. Conroy, 61 Ill. 162; C. & N. W. R. R. Co. v. Taylor, 69 id. 461; 8 Me. 641; Wabash & West. R. R. Co. v. Fredericks, 71 Ill. 294; Toledo, W. & W. Ry. Co. v. O'Connor, 77 id. 391; Baker v. Alleghany Valley R. R. Co., 95 Penn. St. 211; Howard Oil Co. v. Farmer, 56 Tex. 452; Paulmeier
      v. Erie R. Co., 34 N. J. L. 151; C. & N. W. R. R. Co. v. Miranda, 93 Ill. 302; 34 Am. Rep. 168; Priestly v. Fowler, 3 M. & W. 1; Hayden v. Smithfield Mfg. Co., 29 Conn. 548; Griffin v. Godwin, 3 Hen. & Munf. 648; William v. Clough, id. 257; Patterson v. Wallace, 28 L. & E. 48; Skip v. E. Counties Ry. Co., 24 id. 396; 9 Exch. 228; Albro v. Agawam C. Co., 6 Cush. 75; Snow v. Housatonic R. R. Co., 8 Allen,441; Feltham v. England, L. R., 2 Q. B. 33; Murphy v. Smith, 19 C. B. [N. S.] 361; Galagher v. Piper, 16 C. B. 669, 672; Pantzar v. Tilly Foster Mining Co., 99 N. Y. 368.) The duty of the master to the servant, or his implied contract with his servant, leads to the result that the servant shall be under no risks from imperfect or inadequate machinery. (Priestly v. Fowler, 3 M. & W. 1; Comyn’s Dig., “ Master and Servant,” K.; 2 Term R. 154; Viner’s Abr. “ Master and Servant,” B 9; Tuberville v. Stamp, Comb. Rep. 459; 1 Blackst. Com. 431; Paley on Agency, 294, 295; C. & N. W. R. R. Co. v. Miranda, 93 Ill. 302; 34 Am. Rep. 168; Story on Agency, § 452.) The superintendent whose orders the plaintiff obeyed was not a fellow servant. (Brick v. Rochester, etc., R. R. Co., 98 N. Y. 211, 212, 216; Crispin v. Babbitt, 81 id. 516; McCosker v. L. I. R. R. Co., 84 id. 77; Gunter v. Graniteville Mfg. Co., 18 S. C. 262; 44 Am. Rep. 573.) Where the superior directs the doing of an act the servant does not contribute, in a legal sense, to the injury resulting from obedience. (Gibson v. Erie R. Co., 63 N. Y. 449; Kain v. Smith, 25 Hun, 148; Miller v. Union P. R. R. Co., 12 Fed. Rep. 600; Lalor v. R. R. Co., 52 Ill. 401; O’Neil v. R. R. Co., 9 Fed. Rep. 337, § 432; Mich. C. R. R. Co. v. Smithers, 7 N. W. Rep. 991; Porter v. Han. & St. J. R. R. Co., 71 Mo. 68; Bucher v. N. Y. C., etc., R. R. Co., 98 N. Y. 128; Salter v. Utica, etc., R. R. Co., 88 id. 49; Morrison v. Erie R. Co., 56 id. 302; Filer v. N. Y. C. R. R. Co., 49 id. 52; Morris v. I. & St. L. R. R. Co., 10 Bradw. [Ill.] 396.)

      G. W. Coiterill for respondents.
    The liability of the master, even to a stranger, except for his own torts, can only be justifled as an exception on the ground of public necessity. But when that exception is extended to embrace cases where the person injured, instead of being a stranger to the agency, is himself a part of it, it fails almost entirely. (Story on Agency [9th ed.], §§ 453, 535; Sherman v. Rochester & Syr. R. R. Co., 17 N. Y. 157.) A master is not responsible to those in his employ for injuries resulting from the negligence or misconduct of a fellow servant - engaged in the same general business. (Wright v. N. Y. C. R. R. Co., 25 N. Y. 564.) The rule exempting the master is the same, although the grades of the servants or employes are different. (25 N. Y. 564; Story on Agency [9th ed.], 536; Malone v. Hathaway, 64 N. Y. 9.) It is not necessary, in order to bring the case within the exemption, that the servants should be engaged in the same work. It is enough if they are engaged in a common enterprise tending to accomplish the same general purposes, as operating a factory or railroad. (Wright v. N. Y. C. R. R. Co., supra.) The master is only liable to his servant for his own misconduct or personal negligence. (Wright v. N. Y. C. R. R. Co.; Wood on Mast. & Serv., §§ 744, 755, 756, 791.) If the servant sustaining an injury through the unskillfulness of his fellow servant has the same knowledge of the unskillfulness or deficiency of the materials as his employer, he cannot sustain his action. (Wright v. N. Y. C. R. R. Co., 25 N. Y. 564; Wood on Mast. & Serv., § 744.) It cannot be claimed that the engineer was the alter ego of the defendants. (Malone v. Hathaway, 64 N. Y. 12.)
   Ruger, Ch. J.

The evidence of the circumstances surrounding the accident, and the prior use of the platform occasioning the same, is quite meagre and unsatisfactory ; but standing unexplained was quite sufficient to carry the question of plaintiff’s ' contributory negligence to the jury. He was unexpectedly called from his work in another part of the factory, to assist in putting up girders to support a roof in course of erection over the boiler-room. This duty Was not in the line of his general employment, and his evidence shows that" he had no previous knowledge of the status of the work, or of the appliances used in its prosecution. A platform, consisting of five pine boards painted red, and being one inch thick, fastened together by two hard-wood- cleets attached to the boards with screws, and forming a flooring, about four feet six inches wide (the length is not shown), was placed in such a position as to be supported by the wall on one side, and an iron beam three feet therefrom on the other, and extending over a vault about eleven feet deep. It was raining on the day of the accident, and when the plaintiff appeared in the yard, about on a level with the platform, he was ordered by the foreman to get upon it for the purpose of aiding other servants of the defendant, who were then present and ready to proceed in the work of placing the girders in position. The plaintiff asked the foreman if it was safe, and was informed, that it was.

It is quite evident that the plaintiff, had no opportunity to inspect the platform, for the purpose of discovering defects in its material or structure before going upon it, and even if he had made such examination, it is quite doubtful whether he could have discovered them, on account of the painted surface, and the difficulty of inspecting its lower side as it was then situated. He advanced upon it to the place where his services were needed, when the board broke and precipitated him into the vault below, and a serious injury resulted.

This statement of the case does not show as matter of law, that the plaintiff was chargeable with negligence in going upon the platform. The complaint was not, however, dismissed at the circuit for that reason, but upon the ground that the evidence did not show the platform, to have been furnished by the defendants for the use to which it was put, and that it appeared to be an instrumentality adopted by a fellow servant without the knowledge or consent of the employer. The neglect, if any, was said to be that of a co-servant, for which the master was held not to be liable. The General Term seems to have taken a similar view of the case, and, therefore, affirmed the judgment. In this we think those courts erred, and that a new trial should be granted.

It has been repeatedly held that the .risks of the service which a servant assumes, in entering the employment of a master are those only which occur, after the due performance by the employer, of those duties which the law enjoins upon him, and that the negligence of the master co-operating, with that of a servant in producing injury to a co-servant, renders the master liable. (Stringham v. Stewart, 100 N. Y. 516 and cases cited.) It was said by Chief Judge Church, in Flike v. B. (& A. R. R. Co, (53 N. Y. 549), that the true rule “is to hold the corporation liable for negligence in respect to such acts and duties as it is required to perform as master without regard to the rank or title of the agent intrusted with their performance. As to such acts the agent occupies the place of the corporation, and the latter 'is liable for the manner in which they are performed.” Judge Kapallo states the rule in Crispin v. Babbitt (81 JY Y. 521), to be that it depends “ upon the character of the act in the performance of which the injury arises without regard to the rank of the employe performing -it. If it is one pertaining to the duty the master owes to his •servants he is responsible to them for the manner of its performance.” The rule is unqualified that a master is bound to use all reasonable care, diligence and caution in providing for the safety of those in his employ, and furnishing for their use in his work safe, sound and suitable tools, implements, appliances, and machinery in the prosecution thereof, and keeping the same in repair. This is the master’s duty and he cannot exempt himself from liability for its omission, by delegating its performance to another, or having required work to be done, by omitting precautions and inquiries, as to the time and manner of its performance. (Laning v. N. Y. C. R. R. Co., 49 N. Y. 521; Corcoran v. Holbrook, 59 id. 517; Slater v. Jewett, 85 id. 61; Pantzar v. Tilly Foster Mining Co., 99 id. 368.)

The master is chargeable ordinarily, with knowledge of the means necessary to be employed in performing his work, and when their procurement and selection, is delegated to a servant he stands in the place of the master in discharging those duties; and the servant’s neglect in that office, is chargeable to the employer, as an omission of duty enjoined upon him. (Ellis v. N. Y. Cent. R. R. Co., 95 N. Y. 546; Slater v. Jewett, 85 id. 61.)

Ignorance by the master of defects in the instrumentalities used by his servants, in performing his work, is no defense to an action by the employe who has been injured by them, when by the exercise of proper care and inspection, the master could have discovered and remedied the defects, or avoided the danger incident therefrom.

The evidence in the case, fails to disclose the previous history of the structure used as a platform, but it appears that it was already manufactured and had lain for some time previous to the accident over the boiler in the boiler-room. It was apparently made of sound lumber, and upon a casual examination would seem to have been safe, for the purpose for which it was used. An examination of it, however, after the accident disclosed, that the broken board had a knot of about two inches in diameter near its center, which must have impaired its safety for use as a platform. The under part of the board was unpainted, and the existence of the knot was presumably open to discovery upon a casual inspection of the platform, before it was placed in position.

We think that it was within the province of the jury, upon the evidence appearing in the record, to pass upon the question of the defendant’s negligence, in using the structure described for a platform, and that it was error to dismiss the complaint. (Feltham v. England, L. R., 2 Q. B. 46; Coughtry v. Globe Woolen Co., 56 N. Y. 124; Manning v. Hagan, 78 id. 615.)

The judgment of the court below should be reversed and a new trial ordered, with costs to abide the event.

All concur.

Judgment reversed.


text:
    Mary Schmittler, Appellant, v. Adam Simon, Respondent.
    administrator 0r executor who makes, indorses or accepts negotiable paper is personally liable thereon, although he adds to his signature the name of his office ; he cannot bind the assets of the deceased by his contracts.
    The mere mention of a fund in a draft does not necessarily deprive it of the character of negotiable paper; it is only where there is a direction, express or implied, to pay it from the fund, and not otherwise, that it will have that effect.
    A draft drawn upon an executor of the estate of the mother of the drawer contained an absolute direction to pay a fixed sum at a specified date, with interest to the payee or order ; then followed these words, “ and charge the amount against me, and of my mother’s estate.” The draft was accepted by the executor, the word “executor” being added to his signature. In an action upon the acceptance, held, that the reference in the draft to the estate was not a direction to pay out of it, but it was simply referred to as a means of reimbursement; that the instrument was valid as a bill of exchange, and that the defendant was liable absolutely and individually.

      Tooker v, Arnoux (76 N. Y, 397), distinguished.
    (Argued January 22, 1886;
    decided March 2, 1886.)
    Appeal from judgment of the General Term of the Supreme Court in the first judicial department, made March 21,1883, which affirmed a judgment in favor of defendant, entered upon an order dismissing plaintiff’s complaint on trial.
    The nature of the action and the material facts are stated in the opinion.

      Wm. W. Jenks for appellant.
    The instrument sued upon is a bill of éxchange. (Pothier, Blackstone, Kent, Edwards and Story; Luff v. Pope, 5 Hill, 416; 1 Pars, on Notes and Bills, 323; Convren v. Luddy, 31 Penn. St. 509; 6 B. Monr. 179; 4 Den. 358; 2 Wheat. 385; 3 Shepl. 131; 9 Watts, 359; Byles on Bills, 245; Mich. Bk. v. Stratton, 3 Abb. Ct. App.. Dec. 270; Story on Bills, chap. 5, p. 184; Laing v. Barclay, 1 Barn. & Cress. 398.) The word “ executor,” both in the body of the instrument and after the signature of the acceptor, is simply descriptio personae, and as the addition did not bind a principal, the acceptor is individually bound. (Connor v. Clark, 12 Cal. 168; Hill v. Bannister, 8 Cow. 31; Foster v. Fuller, 6 Mass. 758; Thatcher v. Dinsmore, 5 id. 299; Robertson v. Banks, 1 S. & M. 666; Cornthwaite v. First Nat. Bk., 57 Ind. 265; Mills v. Kuykendall, 2 Blackf. 47; Carter v. Thomas, 3 id. 213; Ranney v. Adm. of Johnson, 8 Wend. 500; Ferrin v. Myrick, 41 N. Y. 316; McEldery & Chapman v. McKenzie, 2 Port. [Ala.] 33; Windom v. Bleecker, 52 Ill. 342; Davis v. French, 20 Me. 21; Tryon v. Oxley, 3 Iowa, 289; Austin v. Monroe, 47 N. Y. 360; Pars, on Notes and Bills, 161; Story on Bills, § 47; Story on Prom. Notes, § 63; Tasso v. Church, 4 W. & S. 346.) Admitting that the consideration of the instrument sued upon is a debt of a testator represented by the defendant, and a legacy or a portion to be due an heir in either case, its acceptance is an admission of assets, and the forbearance to sue would make it a valid individual obligation. (Johnson v. Gardiner, 10 Mod. 254; Bradley v. Heath, 3 Sim. 543; Davis v. Reyners, 2 Lev. 3; Childs v. Morrison, 2 Brod. & Bing. 462; Liverpool Borough Bk. v. Walker, Zex & Jones, 29; Liskman v. Allen, 3 E. D. Smith, 564.) The promise to pay interest upon the draft sued upon made it, under any contingency, a personal obligation of defendant. (Sims v. Stillwel, 3 How. [Miss.] 176; Powell v. Graham, 7 Taunt. 581; Childs v. Morris, 6 Eng. C. L. 200; Chitty on Cont. 84; Davis v. Reyners, 2 Lev. 3.) The direction at the close of the instrument “ and charge the amount against me, and of my mother’s estate,” is directory between drawer and drawee as to where amount paid is to be charged. (Chitty on Bills, 162; Bouv. L. D., tit. Bills of Exch.; Byles on Bills, 86; McLeod v. Snee, 2 Strange, 762; Coursen v. Ledder, 31 Penn. St. 506; Kelly v. Mayor of Brooklyn, 4 Hill, 263; 1 Daniels on Neg. Instr., § 51; Hollister v. Hopkins, 13 Hun, 210; Munger v. Shannon, 61 N. Y. 251; Ridman v. Adams, 51 Me. 429; 1 Edw. on Notes and Bills, § 158.)

      Joseph B. Reilly for respondent.
    Defendant’s acceptance of the draft in the capacity of executor of the estate does not bind him individually. (Bk. of Troy v. Topping, 9 Wend. 273; Story on Notes, § 63; Story on Bills, § 74; Edwards on Bills, 79; 1 Daniels on Neg. Inst., §§ 255, 263; Lake v. Trustees, etc., 4 Den. 520; Kingsberry v. Pettis Co., 48 Mo. 207; Tooker v. Arnoux, 76 N. Y. 397.) The draft in suit was nonnegotiable, as appears upon its face, it was chargeable against a certain fund, that is, the interest of the drawer in his mother’s estate; hence, the plaintiff is in no better condition than the payee named therein. (Cook v. Satterlee, 6 Cow. 108; Skilen v. Richmond, 48 Barb. 428; 1 Daniels on Neg. Inst., § 263; Story on Prom. Notes, § 63; 1 Pars. B. & N. 161.) It can be only construed as an equitable assignment of sufficient of that interest to pay the amount set forth in the instrument. (Wells v. Williams, 39 Barb. 567; Richardson v. Rust, 9 Paige, 243; Vreeland v. Blunt, 6 Barb. 182.) When a party accepts a draft of this character in a representative capacity, and such fact be known, then he is only liable in such representative capacity. (44 N. Y. 395; 15 Johns. 1; 6 How. Pr. 1; 17 Johns. 301; 1 Cow. 514; Brockway v. Allen, 17 Wend. 40;. Seaber v. Hawkes, 5 Moore & Payne, 549.) The only construction that can be given to the words in the draft “ and of my mother’s estate,” is that the drawer directed the executor to pay $900 of the estate of his mother. (Gallery v. Cushman, 14 Barb. 186; Tooker v. Arnoux, 76 N. Y. 397; Schoonmaker v. Roosa, 17 Johns. 300.) It is not a positive promise to pay; at the most it is a conditional promise, dependent upon the extent of William J. Scharen’s interest in his mother’s estate. (1 Pars. on B. & N. 161; Story on Bills, § 47; Story on Notes, §63.)
   Ruger, Ch. J.

The plaintiff claimed to recover as the holder of a draft, drawn upon and accepted by the defendant, reading as follows:

“New York, February 26, 1877.
“Mr. Adam Simon, executor, will please pay to Johannes Schmittler or his order, on the first day of July, which will be in the year 1879, the sum of $900, with seven per cent interest, to be paid besides this amount yearly, July month, and charge the amount against me and of my mother’s estate.
‘1 WILLIAM J. SCHARER”
Written upon the face: Accept, Adam Simon, executor,” and indorsed, Pay to the order of Mary Schmittler, the amount of note. Johannes Schmittler.”

Upon the trial, after proving the execution of the draft, its acceptance and transfer, and offering to prove the payment of a consideration by the plaintiff to the payee, which was objected to by defendant, and excluded by the court, the plaintiff rested. The defendant thereupon moved to nonsuit upon the ground that the obligation was not binding upon the defendant personally, but he was liable thereon, if at all, in his representative character alone, and that it was payable out of a specific fund, and a recovery thereon, could not be had without proving the existence and extent of such fund. The court thereupon nonsuited the plaintiff, to which decision she excepted. The General Term having affirmed the determination of the trial court, the plaintiff took this appeal.

We think the court below erred as to both of the grounds upon which their judgment proceeded. That the defendant was liable upon the draft, if liable at all, in his individual capacity alone, seems under the authorities to admit of no,doubt.

Neither executors nor administrators have power to bind the estate represented by them through an executory contract, having for its object the creation of a new liability, not founded upon the contract or obligation of the testator or intestate. They take the personal property as owners and have no principal behind them for whom they can contract. The title vests in them for the purposes of administration, and they must account as owners to the persons ultimately entitled to distribution. In actions upon contracts made by them, however they may describe themselves therein, they are personally liable, and in actions thereon the judgment must be de bonis propriis. Not so, however, upon contracts made by their testator or intestate ; in such case the judgment is always de bonis testatoris. (Gillet v. Hutchinson’s Adm., 24 Wend. 184; Ferrin v. Myrick, 41 N. Y. 315; Austin v. Monroe, 47 id. 360, 366.)

The action here is exclusively upon the undertaking of the defendant, importing a promise to pay the sum of $900 on the 1st day of July, 1879, to the payee of the draft or his order for a consideration received by the promisor. No facts are alleged or proved, showing any liability on the part of the defendant’s testator to the drawee of the draft, or any legal demand existing in his favor, against the estate represented by the defendant.

It follows that the obligation must be held to be the individual contract of the defendant, and enforceable as such by a j ndgment against him, and execution to be levied de bonis propriis, or it is nudum paetum creating no liability whatever.

The cases are very numerous to the effect that the addition of an official character, to the signatures of executors and administrators, in executing written contracts and obligations has no significance, and operates merely to identify the person and not to limit or qualify the liability. Thus it was held in Pinney v. Administrators of Johnson (8 Wend. 500), that a bond given by administrators in their representative capacity to a creditor for a debt of their intestate, was the individual obligation of the administrators and enforceable against them de bonis propriis only; that the description of the obligors in the bond as administrators, and their promise in that character was siirplusage, and they were chargeable upon such a bond only in their personal capacity. (See, also, Gould v. Ray, 13 Wend. 633.) Parsons on Bills and Notes, vol. 1, page 161, lays down the rule that an administrator or executor can only bind himself by his contracts; he cannot bind the assets of the deceaséd. Therefore, if he nfake, indorse or accept negotiable paper, he will be held personally liable, even if he adds to his own name the name of his office. Signing a note for example, A. as executor of B,’ for this will be deemed only a part of his description or will be rejected as surplusage.” To similar effect are Pum pelly v. Phelps (40 N. Y. 59), Taft v. Brewster (9 Johns. 334), Forster v. Fuller (6 Mass. 58), Hill v. Banister (8 Cow. 31), Thatcher v. Dismore (5 Mass. 299), Cornthwaite v. First Nat. Bank (57 Ind. 268).

Being of the opinion, therefore, that the defendant is liable upon the draft in question in his individual capacity alone, the question still remains as to the extent of such liability. He was undoubtedly competent to enter into a personal contract in reference to the funds in his possession, and in such case would be bound to perform according to the tenor and legal effect of the obligation assumed by him, and entitled to be allowed the amount paid upon an accounting, as executor. Such instruments are subject to the rules of construction applicable to other contracts, and must be interpreted upon consideration of the language used by the parties, with a view of arriving at their intention in executing them. The court below held that the draft in question was payable only from a particular fund, and was, therefore, non-negotiable, and enforceable only to the extent of the fund referred to.

Considering the question as we are compelled to do from the language of the instrument alone, we are unable to agree to the interpretation thus put upon it. It is not claimed that there is any distinction between the instrument in > question and an ordinary bill of exchange except that made by the clause referring to the mother’s estate. Unless that clause deprives the paper of its commercial character, the rights and liabilities of the parties thereto must be governed by the rules pertaining to negotiable securities, which would render the defendant liable for the amount named in the draft, upon the theory that his acceptance was an admission by him of assets applicable to its payment.

The distinction between a fund from which a draft or order is directed to be paid, and one referred to as the means of reimbursment to its drawee, is a material one and cannot be disregarded in the construction of such instruments. Thus it is said: When a reference is made to a special fund merely as a direction to the drawee how to reimburse himself, and the payment is not made to depend upon the adequacy of the fund, it will not vitiate the bill.” (Edw. on Bills and Notes, § 158.) See, also, Parsons on Merc. Law, 87; Ohitty on Bills, 158. Dwight, Com., in Munger v. Shannon (61 N. Y. 255), says: “ A bill is an order drawn by one person on another to pay a third a certain sum of money absolutely and at all events. Under this definition the order cannot be paid out of a particular fund, but must be drawn on the general credit of the drawer, though it is no objection, when so drawn, that a particular fund is specified from which the drawee may reimburse himself.” Judge Rapallo, in Brill v. Tuttle (81 N. Y. 457), says: “If a draft be drawn generally upon the drawee, to be paid by him in the first instance, on the credit of the drawer and without regard to the source from which the money used for its payment is obtained, the designation by the drawer of a particular fund, out of which the drawee is to subsequently reimburse himself for such payment, or a particular account to which it is to be charged, will not convert the draft into an assignment of the'fund, and the payee of the draft can have no. action thereon against the drawee unless he duly accepts.” In that case the drawee refused to accept and the action was sought to be maintained upon the theory of an equitable assignment. It was held under the peculiar circumstances of the case, and the form of the instrument, that it did transfer the fund.

It is thus seen that the mere mention of a fund in a draft, does not necessarily deprive it of the character of commercial paper, but it must further appear in order to have that effect, that it contains either an express or implied direction to pay it therefrom, and not otherwise.

The question, therefore, to be determined here is, whether the fund in question is referred to as the measure of liability or the means of reimbursement. While the point is not free from doubt, we think a reasonable construction of the draft favors the conclusion that it is mentioned only as the source of reimbursement. No express language in it can be pointed out as requiring_ its payment from the fund mentioned, and none from which that requirement can be implied, except such as exists, in all drafts where a fund is referred to. Its language is to charge the amount against me and of my mother’s estate ” and contains no provision for delay until the amount is realized from the estate, or for payment pro tanto in case the estate should prove insufficient to pay the whole amount. There is no language importing a transfer of the fund to the payee, and nothing from which such an intention can he inferred. The draft contains an absolute direction to pay a fixed sum, ata specified date, with interest. It imports a present indebtedness of a sum named, from the drawee to the payee, and an absolute direction to pay that sum at a fixed date, subject to no contingency either as to time or amount. In express language .he directs the amount when paid to be charged against him individually, and adds the words, plainly implying, as we think, that the fund for the acceptor’s reimbursement would be found in an amount eventually, or immediately payable to the drawer from his mother’s estate. '

We think, also, that the insertion of words expressly making the paper negotiable, was quite significant and indicated an intention on the part of all parties, that it should be transferable, and partake of the character of commercial paper. Any contingency inferable •from the language of the draft, making the amount payable thereon indefinite and uncertain, would tend, largely to depreciate its value for such purpose, and defeat the intention with which it was apparently made.

If the language of the paper could be considered at all ambiguous, it was the duty of the defendant-to limit his liability by apt words of acceptance when it was presented to him, but as it is, he has unqualifiedly promised to pay a fixed and definite sum at a specified time, and we think, should be held to the contract which other parties were authorized by his acceptance to infer he intended to make. The case of Tassey v. Church (4 Watts & Sergeant, 346) seems quite in point. The instrument there read:

“ $555.48. Allegheny, 1st July, 1840.
“Please pay Church, McVay & Gordon $555.48 and charge the estate of Thomas C. Patterson.
“ ADAM FLEMMING, Tnistee.”
“To John Tasset, Administrator.
Indorsed: “ Accepted, John Tasset, Administrator.”

Fleming was the trustee of Mrs. Patterson, who was the heir at law of Thomas C. Patterson; Tassey was the administrator of Patterson’s estate. It was held that the promise of the acceptor was unconditional and bound him absolutely. In Childs v. Monins (6 Eng. C. L. 228), the defendants, as executors of the estate of Thomas Taylor, promised to pay £200 on demand with interest, signing as executors. It was held that they became personally liable, and that the plea of plene administravit was no defense. It was further held that the promise to pay interest made the debt that of the administrators personally. In Kelly v. Brooklyn (4 Hill, 263), the action was upon an order drawn by the mayor upon the treasurer of defendant in the following words: “Pay Alexander Lyon or order $1,500 for award No. 7, and charge to Bedford Road Assessment.” It was held that it was a bill of exchange' and not payable from a particular fund. For further illustration of the point under discussion we wquld refer to Hollister v. Hopkins (13 Hun, 210); Redmond v. Adams (51 Me. 429); Luff v. Pope (5 Hill, 413). The case of Tooker v. Arnoux (76 N. Y. 397) is referred to by the respondent as sustaining the views of the court below; but we are of the opinion that it cannot be so regarded. The order there directed the drawee to pay a certain sum out “ of the money to be realized from the sale ” of certain houses. This order was accepted, and it was held that a sale of the houses was a condition precedent, to any liability on the part of the acceptor. This was the plain language of the contract.

In all the cases examined by us where an order has been held to operate as an equitable assignment of a fund, there were either special phrases contained in the instrument, indicating an intent to have it so operate, or ambiguous language used, which, construed in the light of surrounding circumstances, justified the inference of a limitation of liability. (Parker v. Syracuse, 31 N. Y. 376; Alger v. Scott, 54 id. 14; Munger v. Shannon, 61 id. 251; Ehrichs v. DeMill, 75 id. 370; Brill v. Tuttle, supra.) Here, however, there is no such language, and this contract is to pay a fixed amount at a specified date, absolutely and unconditionally.

We are, therefore, of the opinion that the instrument in question is a bill of exchange and rendered the parties executing it liable absolutely for the amount stated therein.

The .judgment of the courts below should be reversed and a new trial ordered, with costs to abide the event.

All concur.

j udgment reversed.