author: By the Court.—Freedman, J. Ingraham, J.—(concurring).

text:
    JAMES CLINTON BOLTON, et al., Plaintiffs v. WILLIAM SCHRIEVER, et al., Defendants.

      Ejectment—Title—Probate of will—Surrogate has full jurisdiction over the issue of letters of administration and to determine the facts upon which their action must rest.

    The ease at bar is an action of ejectment, and decision upon the same rests upon the validity of the probate of a will. The plaintiffs contend that said probate Can be assailed in this action and that it is invalid by reason of the fact assumed to have been proven, that the testator, at the time of his death, was an inhabitant of the state of New York, but not an inhabitant of the county of New York, where the will was admitted to probate, and their contention rests upon the doctrine and decision of Bolton ». Jacks, 6 Robt. 166.

      Held, That the general doctrine of that case in regard to the want of jurisdiction, rendering void the judgment of any court, has stood the test of criticism, and is now good law in this state; but the decision of the case itself has not been so fortunate, and in respect to certain judicial determinations made by surrogates’ courts it has been in part overruled and disapproved by the Court of Appeals. That in Boderigas v. East Biver Savings Institution, 63 N. Y. 460, the Court of Appeals held that the statutes of this state furnish a complete system, regulating the jurisdiction and proceedings of surrogates’ courts, and the legislature intended to confer upon them sole and exclusive jurisdiction over the subject of granting letters of administration, and, as part of that jurisdiction, to determine upon evidence the facts upon which their action rest, and if the case be a proper one, the surrogate must act and issue letters, and that the letters so issued are conclusive evidence of 'the authority of the administrator until reversed on appeal or revoked. That in deference to the views of the learned judges on that occasion, this court is constrained to hold that the decision of Bolton®. Jacks is not to be followed in this case, and that if there is a distinction to be made between a judicial determination upon the question of death, as raised in the Boderigas ease, and a judicial determination of inhabitancy, as in the case at bar, which this court does not recognize, the plaintiffs should be left to urge that question upon the Court of Appeals. That inasmuch as letters testamentary stand upon 'the same legal footing as letters of administration, the conclusion reached is that it was error to direct a verdict for the plaintiffs, and it should be set aside.
    Before Freedman and Ingraham, JJ.

      Decided January 5, 1891.
    Verdict directed for plaintiffs and exceptions ordered to be heard in the first instance at general term.

      Johnston & Johnston, attorneys, and Leíais Johnston of counsel, for defendants, argued :•—■
    As to the validity and unassailability of the decree of the surrogate admitting the will of Theodore B. Tallmadge to probate. (1.) The decree of the surrogate admitting this will to probate cannot be attacked collaterally in this proceeding. The contention of the plaintiffs that it can be attacked collaterally rests solely upon the case of Bolton v. Jacks, 6 Robt. 166; the statement of law in that case, that want of jurisdiction in the court giving a judgment may always be shown in any collateral proceeding to render such judgment void is uncontrovertible, and has been approved in many subsequent cases, but as to the further rule laid down therein, that the finding of the surrogate on the facts presented to him of the residence of the said testator is not judicial, and that the judgment founded upon such finding can be attacked collaterally; that case has been overruled expressly by the Court of Appeals in the case of Roderigas v. East River Savings Institution, 63 N. Y. 460, in which case the Court of Appeals, Earl and Miller, JJ., writing the opinions, holds that that decision that the proceedings of the surrogate were void, and could be attacked collaterally, “ was unsound,” and further holds that a surrogate’s decision on the existence of facts conferring jurisdiction is judicial (so stated by Sandford, J., in Boller v. The Mayor, 40 N. Y. Super. Ct. R. at pp. 533, 534, 535 and 536). If inquiry into the death of a person on whose estate administration is applied for is judicial, why is not inquiry as to the inhabitancy of the deceased (Roderigas v. East R. S. I., 63 N. Y. at p. 467)? The surrogate in this case had presented to him a verified petition showing that the decedent was an inhabitant of the city and county of New York. The surrogate in passing upon the questions involved in this verified petition as to his jurisdiction in the premises acted in a judicial manner, and his decision cannot be attacked collaterally. (2.) The Supreme Court in two cases, one being Morrell v. Dennison, 8 Abb. Pr. R. 401, decided in 1859, and passing upon the law of 1837, and upon the identical facts in issue here, holds that where the jurisdiction of the subordinate tribunal having cognizance of the general subject has attached by the presentation of a verified prima facie case, and by the appearance of the parties, e. g. in the case of proceedings before the surrogate’s court for the probate of a will, even on the quasi jurisdictional fact, such as that of inhabitancy, its decision is conclusive unless reversed on appeal. It further holds that where after a great lapse of time it is sought to avoid collaterally the proceedings of the surrogate in admitting to probate a will on the ground that by reason of the testator’s non-residence the surrogate had no jurisdiction, the question is not, was the inhabitancy of the testator such that the surrogate has no jurisdiction, but was the surrogate necessarily wrong in deciding on the evidence before him that the intestate was an inhabitant of his county. (3.) And the other case, being Bolton v. Brewster, 32 Barb. 389 (cited with approval in the Roderigas case and also passing upon the identical facts in issue herein), where the court holds that general jurisdiction being given to the surrogate’s court (see Laws of 1837, chap. 460, § 1, pp. 1 and 5), and as that jurisdiction depends upon facts which must be brought before the court for its determination upon evidence and it is required to act upon such evidence (Laws 1837, chap. 460, § 5), its decision upon the question of its jurisdiction is .conclusive until reversed, revoked or vacated so far as to protect its officers and all innocent persons who act upon the faith of it, which is practically the decision in the Roderigas case (see 63 N. Y. at p. 464). See also Bumstead v. Read, 31 Barb. 661, also passing upon the same facts as in the case at bar; as also Bolton v. Brush, 8 Abb. 389. The surrogate’s court had exclusive jurisdiction of all other courts to admit this will to probate (Laws of 1837, chap. 460, § 1, §§ 16 and 17). (4.) If the surrogate had refused upon the petition before him to admit the will to probate, the executor so applying could have secured a peremptory writ of mandamus from the Supreme Court to compel the surrogate to admit the will to probate (People v. Judges of Dutchess C. P., 20 Wend. 656; Anderson v. Anderson, 112 N. Y. 104; Roderigas v. East R. S. I. 63 lb. at p. 466; Estate of Hammersley 9 Civ. Proc. R. 293). And the surrogate having made a finding of fact, as will be found in the letters testamentary, that the testator was an inhabitant of the county of New York, this degree cannot be attacked in a collateral proceeding of this kind, the remedies for the parties being solely in the surrogates court, and until that decree is reversed or vacated or revoked it is conclusive here. The court is also respectfully requested to examine the cases of Kelly v. West, 80 N. Y. 144, 145, and Harsen, Admr. v. Clark, 14 Week Dig. 136. If the surrogate had admitted the will to probate upon a petition which did not set forth that the testator was an inhabitant of the county of New York, but if said . petition had set forth that he was an inhabitant of Columbia county, then the decree would be absolately void ; but being required to act by the presentation of the petition which, if true, gave him jurisdiction and compelled him to act (Laws of 1837, chap. 460, § 16), all innocent parties who had acquired any rights under that decree are protected thereby, and the remedy of the party is solely in the court which admitted the will to probate (Matter of Harvey, 3 Redf. 216). Evidence of the inhabitancy of the testator was before the surrogate ; if such evidence had not been before him and he had made a finding as to the residence without evidence, then the decree would have been void and the recitals therein would have amounted to nothing. The distinction between the cases is very clear. Such is the decision of this court at general term on December 5, 1889, in the case or Gilman v. Tucker, 28 N. Y. St. Rep. 587, where it was held that the judgment was not void and was regular when entered, and the appropriate remedy was by an appearance and motion in the court wherein the judgment was entered. Section 2627 of the Code of Civil Procedure states that the decree is only presumptive evidence that the matters therein recited are true, but this presumption is raised only to meet the exigencies required in the further provisions of the Code that probate can be attacked or a will re-proved within a certain time (§§ 2647 and 2648), but this does not apply to actions in the other courts or in collateral proceedings. (5.) A careful examination of all the reported cases- will convince the court that the cases as to the right to attack a judgment in a collateral proceeding resolve themselves into two classes : First, cases where the evidence offered to attack a judgment shows that the evidence or facts upon which such judgment was rendered could not, by any possibility, have existed, then such judgment is void ; and, second, where the evidence offered goes merely to contradict the evidence upon which the judgment was rendered ; in which cases the judgment cannot be attacked collaterally, the remedy being by appeal or by motion in the court where the judgment was entered to vacate the same. In the case at bar, the evidence offered goes merely to contradict the evidence submitted in the verified petition before the surrogate. (6.) An examination of the following cases will show the truth of the foregoing rule. McCarthy v. Marsh, 5 N. Y. 263 ; Bumstead v. Read, 31 Barb. 661; Porter v. Purdy, 29 N. Y. 106 ; People v. Waldron, 51 How. 221 ; Lewis v. Dutton, 8 lb. 103 ; Skinnion v. Kelly, 18 N. Y. 356; Sheldon v. Wright, 5 lb. 497; Rusher v. Sherman, 28 Barb. 416; Kinnier v. Kinnier, 45 N. Y. 535; Staples v. Fairchild, 3 lb. 41. The case cited by the plaintiff’s counsel to the court below, Chatman v. The Phenix Nat. Bank, 44 N. Y. Super. Ct. Rep. 340, supports the contention of the defendants, and we fail to see how it has any bearing favorable to the plaintiff, and trust that the court will examine the record of this case, as it will surely convince the court that such contention is right. In that case Judge Fkeedman says (p. 360): “ Where a statute prescribes that some facts must exist before jurisdiction can attach in any court, such fact must exist before there can be jurisdiction, and the court cannot acqixire jurisdiction by erroneously deciding that the fact exists and that it has jurisdiction, but where general jurisdiction is given to the court over any subject, and that jurisdiction depends in a particular case upon facts which must be brought before the court for its determination upon evidence, and where it is required to act upon such evidence, its decision upon the question of its jurisdiction is conclusive until reversed, revoked or vacated so far as to protect its officers and all innocent persons who act upon the faith of it.” Thus it will be seen that the weight of decisions is in favor of the defendants’ position in relying upon the efficacy of this decree. The case of Bolton v. Jacks stands alone opposed to the defendants’ position. That case has been expressly disapproved twice in the Court of Appeals. Roderigas v. East Riv. Savs. Inst. 63 N. Y. at p. 469, holds that in this respect, the decision in Bolton v. Jacks is unsound, and that the finding of a surrogate upon the affidavits presented to him regarding the death of a person is judicial and cannot be attacked in a collateral proceeding. In the second appeal of the same case (76 N. Y. at p. 321) the court says: “ If the surrogate has jurisdiction of the general subject matter, he may exercise that jurisdiction in a variety of cases depending upon residence and the like, and his decision after a hearing of the parties, upon the question whether the case calling for the exercise of jurisdiction exists or not, is protected from- collateral attack. In other words, it is enough if he has general jurisdiction of the subject matter.” * * * “ But if a person be actually dead, then the surrogate is vested with power over the general subject matter. In the latter case he has a right to act, and although he acts erroneously his action cannot be impeached collaterally. He may commit an error as to inhabitancy, which would be sufficient to reverse his decision, but not sufficient to render it void from the beginning, for the reason that he had power to act upon the subject.” The Court of Appeals in the case of Ferguson v. Crawford, 70 N. Y. 253, cited the Bolton u. Jacks case with approval, in so far as that case decided that a judgment can always be proved to be void in a collateral proceeding by showing that the court granting it had no jurisdiction of the subject matter or acquired jurisdiction of the parties, but did not comment at all upon the bearing of that case in respect to which it was disapproved in the Roderigas case. See same statement of the law by Sandford, J. in Boller v.
      Mayor, supra. Thus will be seen a clear distinction between the two principles of law involved.

      Edward C. Perkins and James Clinton Bolton, attorneys and of counsel, for plaintiffs, on the questions considered, argued :—
    The probate of the supposed will of Dr. Tallmadge was void, and as there is no other evidence of the existence of a will, the legal title is in the plaintiffs as his heirs. The evidence shows conclusively that Dr. Tallmadge was an inhabitant of the state of New York, and was not an inhabitant of the county of New York, at the time of his death. Under this state of facts, the proposition stated as our first point depends mainly on our showing : (1.) That the surrogate of New York county did not have jurisdiction to admit the will to probate. (2.) That plaintiffs are not concluded by the probate from showing that the surrogate acted without jurisdiction. Both these propositions were established as the law by the general term of this court in the case of Bolton v. Jacks, 6 Robt. 192. That case was decided with great deliberation, and the opinion of Jones, J., contains a most elaborate and learned discussion of the questions involved, and a complete review of* the cases in point. We consider it unnecessary, therefore, to do much more than show that the law has not been changed since that decision.
    First Dr. Tallmadge being a resident of another county, the surrogate of New York county had no jurisdiction to admit his will to probate. Bolton v. Jacks, 6 Robt. at pp. 192-198. As to this branch of the case, the decision in the Jacks case has never been questioned. We therefore assume that this court will hold itself bound by it, and content ourselves with citing that portion of Judge Jones’ opinion which discusses it.

      Second :—The decree of the surrogate admitting the will to probate can be questioned for want of such jurisdiction. Bolton v. Jacks, supra, pp. 198-227. On this point also we might rest our case upon that just cited, were it not so strenuously urged, that the authority of the Jacks case has been so weakened by what was said of it in the famous, or rather notorious, case of Roderigas v. The East River Savings Bank, 63 N. Y. 460, that this court should disregard it. There is no difficulty, however, in showing that the criticisms of the Jacks case by Miller and Earl, JJ., in the Roderigas case, were not merely dicta, but dicta founded on a misapprehension of the law applicable to the Jacks case ; and an assumption that it was the same as that applicable to the Roderigas case ; and we shall also show that in later cases the Court of Appeals, and this court also, have recognized and approved the law laid down in the Jacks case. We will first compare the Roderigas and the Jacks cases. The Roderigas case was an attempt to impeach letters of administration issued by the surrogate of New York county, on the ground that the' supposed decedent was alive when they are granted. The Jacks case was, and this case is, an attempt to impeach the probate of a will by the same surrogate, on the ground that the supposed testator was not an inhabitant of the county where the will was proved. In the Roderigas case it was admitted that the surrogate was not given jurisdiction to issue letters on the estate of a living person, and the question before the court was whether he was given jurisdiction to decide that a living person was dead. Miller, J., says (p. .471) : “It is no doubt true that the surrogate has no jurisdiction to grant letters of administration on the estate of a living person ” ; and Earl, J. (p. 466), says : “ While the statute gives him no jurisdiction to administer upon the estate of a living person it imposes upon him the duty of inquiry,” etc. So it was decided in the Jacks case (and must, as we have undertaken to show, be assumed in this case), that the surrogate had no jurisdiction to admit to probate the will of Dr. Tallmadge.he not being an inhabitant of the county ; and the question is whether the surrogate had jurisdiction to decide that he was an inhabitant. Now does it follow that, because the letters in the Roderigas case were held unassailable by proof that the decedent was living, this probate is unassailable by proof that the decedent was not an inhabitant ? Because if it does not follow, then the remark as to the Jacks case was a mere dictum. The answer to this question depends on whether the grounds of the conclusion so reached in the Roderigas case apply to the Jacks case. Now the ground of the Roderigas decision is, that the surrogate did have jurisdiction to decide that the supposed intestate was dead, because, and simply and solely because, the statute imposed on the surrogate the duty of determining whether he was dead or not. Consequently it does not follow from that decision that the surrogate had jurisdiction to decide whether Dr. Tallmadge was an inhabitant of New York-county, unless the statute imposed on him the duty of determining that fact, which it does not. It remains only to show : (1.) That the decision in the Roderigas case went on the statute alone. (2.) That the statutes governing the two cases are essentially different in these regards. For convenience, we will first compare the statutes, and then demonstrate the first of these propositions. “ Letters op Administration,” 2 R. S. 74, § 23. “ The surrogate of each county shall have sole and exclusive power, within the county for which he may be appointed, to grant letters of administration, etc. * * * of persons dying intestate in the following cases : " Id. § 26. “Before any letters of administration shall be granted on the estate of any person who shall have died intestate, the fact of such person’s dying intestate shall be proved to the satisfaction of the surrogate, who shall examine the persons applying for such letters, on oath, touching the time, place, and manner of the death, and whether or not the party dying left any will ; and he may also, in like manner, examine any other person and may compel such person to attend as a witness for that purpose.” The provisions requiring proof of death to the satisfaction of the surrogate are stated by Earl, J. (63 N. Y. 467, 468), to be taken from an act of 1792 (2 Greenl. 420), which recited that “ administrations had been frequently granted in this state, upon the mere suggestion of the party applying for the same, without the proof of the death of the person upon whose estate they were granted ; and it has happened that administration had been granted upon estates of persons who were then living and residing within this state ” ; and by which it was enacted “ that no letters should be granted until due proof be made before the said judge or surrogate to his satisfaction that such person was dead.” “ Wills,” Laws 1837, ch. 350, § 1. “ The surrogate of each county shall have jurisdiction, exclusive of every other surrogate, within the county for which he may be appointed, to take proof of last wills and testaments of all deceased persons, in the following cases : ” Id. § 4. “ The executor, devisee or legatee named in any last will, or any person interested in the estate, may have such will proved before the proper surrogate.” “ § 5. On application to the surrogate, he shall ascertain by satisfactory evidence the following facts : * * * 3. If the will relate to both real and personal estate, the names of residence of the heirs, widow, and next of kin of the testator, or that, upon diligent inquiry the same cannot be ascertained.” “ § 6. The surrogate shall also ascertain whether any and which of the persons mentioned in the preceding section are minors,” etc. It is thus apparent that while the statute not only authorizes, but requires the surrogate to pass on the question of death before granting letters of administration, it neither requires nor authorizes him to pass on the question of residence before proving a will. We will now show that it is upon the statute as to letters that the Roderigas caséis based. Two opinions were written in this case. That of Judge Miller begins by quoting § 23 of the statute as we have cited it, underlining the words “ shall be proved to the satisfaction ” and others by which the surrogate is required to make the adjudication. He then says (p. 470): “ The first part of the section cited makes provision for proof of death and intestacy in all cases to the satisfaction of the surrogate, and the latter portion for an examination as to the death, the circumstances connected therewith, and as to the fact whether the party dying left a will. The foundation upon which the proceedings rest are death and intestacy, and both of these must be satisfactorily established. * *.* Such an application is a trial by the officer named of the fact of the death and intestacy of the person whose estate is sought to be administered upon.* * * The power and duty of the surrogate to issue the letters upon satisfactory proof being furnished, is very clear, and the point to be determined is, whether he had no jurisdiction because it subsequently turned out that the alleged intestate was living. It is no doubt true that the surrogate has no. jurisdiction to grant letters upon the estate of a living person ; but a mode has been provided by law to test the fact whether a person is deceased, and as the legislature has enacted how this shall he done, and as the adjudication of a competent tribunal must stand when jurisdiction is acquired until reversed or superseded, as the law requires, it is not apparent that such a determination is invalid and without jurisdiction ” (p. 471). “ If the statute (§ 24, supra) had provided only for the issuing of letters and not ¡proceeded to state what proof was required, it might well be argued that no jurisdiction was acquired. So, if the surrogate had issued the letters without adequate proof, the same result would follow ” (p. 472). * * * * “ The power of the legislature to pass laws in reference to the administration of the estates of deceased persons cannot be doubted. And, as incident to that power, it is entirely competent to authorise the tribunal constituted for such a purpose to pass upon the question of fact. * * * If the doctrine can be upheld that in such cases there is no power to confer jurisdiction to decide the question,” etc., etc. (p. 472). Finally, in speaking of the case of Jochumsen v. Suffolk Savings Bank, 3 Allen, 87, which arose upon precisely similar facts, he says (p. 475): “ There was no statute in the state of Massachusetts making special provisions in regard to the subject as there is here ; and, therefore, it has no application. In reference to this case, as well as other cases which uphold the same doctrine, it may also be remarked that they were disposed of without regard to any statutory regulations which conferred upon a tribunal organized for that purpose, within the jurisdiction where they were decided, authority to investigate, pass upon and decide the question, whether a person "whose estate was sought tobe administered upon was deceased. Such was the object and purpose of the statute cited ; and independent of any rule which may have otherwise prevailed where no tribunal was vested with power to determine the question, they must be regarded as conclusive.” So Earl, J., in his concurring opinion cites at length the same statute, as well as that of 1792 quoted above. He says (p.467): “I am of opinion, taking into consideration the various provisions of the statutes that it was the intention of the legislature to confer upon surrogates’ courts sole and exclusive jurisdiction over the subject of granting letters of admistration, and as a part of that jurisdiction to determine the facts, upon sufficient evidence, upon which their action must rest.” We will not extend our quotations. It must already be evident that the Boderigas case was decided on grounds absolutely irrelevant to the Jacks case or this case. The question in the Boderigas case was simply whether, the surrogate having jurisdiction to inquire into the fact of death, his decision on that question of fact could be attacked collaterally, not for lack of jurisdiction, but for a mistake of fact. The question in this and the Jacks case is whether, the surrogate having no jurisdiction to inquire into the fact of inhabitancy, his jurisdiction to prove the will can be attacked collaterally. One is a question, whether there is jurisdiction or not; the other is a question whether, there being no jurisdiction, the decree can be attacked. The remark about the Jacks case was, therefore, a dictum, and, moreover, it was a dictum evidently resting on the assumption that the law as to wills was the same as that as to administration. It should be noted, too, that the two opinions in the Boderigas case are not concurred in even by the two other judges who voted for reversal. Anything unnecessary to the decision, therefore, is to be treated as the mere personal opinion of the judges delivering the opinions.
    Probably no case in the New York Beports has been so severely criticised as the Boderigas case. Much of this criticism is due, we think, to overlooking the fact that the decision turned on the peculiar language of the statute. It shows, however, that so far as a case is concerned to which, like that at bar, no such statute applies, the universal consensus of opinion is, that the jurisdiction can be questioned collaterally. To this effect see Thomas v. The People, 107 Ill. 517 ; Devlin v. The Commonwealth, 101 Pa. St. 273 ; Lavin v. Emigrant Bank, 18 Blatchf. atp. 5. (per Choate, J.) ; 21 Alb. L. J. 65 ; 22 lb. 231; 10 Am. Law Reg. 787 ; Melia v. Simmons, 45 Wis. 334 ; Redfield on Surrogates, 48, 49 n. (1.) ; Jochumsen v. Suffolk Bank, 3 All. 87 ; Holyoke v. Haskins, 5 Pick. 20 ; Same n. Same, 9 lb. 259 ; Duncan v. Stewart, 25 Ala. (N. S.) 408 ; Morgan v. Dodge, 44 N. H: 259 Cutts v. Haskins, 9 Mass. 547 ; Griffin v. Frazier, 8 Cr. 9. Not only has Bolton v. Jacks not been overruled, but the principle upon which it depends has been repeatedly approved, and its concise statement by Jones, J., has been constantly quoted as the best exposition of the law. That statement is as follows : “ It is now conceded, at least in this state, that want of jurisdiction will render void the judgment of any court, whether it be of superior or inferior, of general, limited or local jurisdiction, or of record or not, and that the bare recital of jurisdictional facts in the record of a judgment * * is not conclusive, but only prima facie evidence of the truth of the fact recited, and the party against whom a judgment is offered is not by the bare fact of such recitals estopped from showing, by affirmative proof, that they were untrue, and thus render the judgment void for want of jurisdiction.” Quoted and approved in Ferguson v. Crawford, 70 N. Y. 255.
   By the Court.—Freedman, J.

At the trial a verdict was directed in favor of the plaintiffs, and the trial judge directed that the exceptions taken by the defendants be heard at general term in the first instance, and that the entry of judgment be suspended in the meantime.

. The action is in ejectment to recover possession of a lot of land known as No. 398 Tenth avenue, between 32d and 33d streets, in the city of New York.

On January 17, 1841, Theodore B. Tallmadge died seized of the premises in question, leaving him surviving two daughters, his only heirs at law, one of whom is the plaintiff Angelina T. Arthur, and the other of whom, Laura E. Bolton, was the wife of the plaintiff James Clinton Bolton. Laura E. Bolton after-wards died leaving a will devising all her real estate to the plaintiff James Clinton Bolton.

The common source of title of both the plaintiffs and the defendants is the said Theodore B. Tallmadge, the plaintiffs claiming by descent, and the defendants adversely under his will and subsequent conveyances beginning with a deed from Philip Burrows, executor of Theodore B. Tallmadge deceased. Probate of the said will was made apparently in due form of law in the surrogate’s office in the county of New York in 1841, and if the said probate cannot be assailed in this action, the defendants showed a sufficient title.

The plaintiffs contend that the said probate can be assailed in this action and that it is invalid by reason of the fact which may be assumed to have been proven at the trial, that Tallmadge, at the time of his death, was an inhabitant of the state of New York, but not an inhabitant of the county of New York, and their contention rests upon the doctrine and decision of Bolton v. Jacks, 6 Robt. 166.

The general doctrine of the case cited, namely, that want of jurisdiction renders void the judgment of any court, whether of superior or inferior, general or limited, or local jurisdiction ; that the recital of jurisdictional facts in the record of such judgment is not conclusive (unless made so by statute), but only prima facie evidence of the existence or occurrence of such facts ; and that the party against whom the record of such judgment is offered in evidence, is not estopped by such recitals from showing affirmatively by proof dehors the record that they are untrue, and from thus avoiding the judgment, has stood the test of criticism and is now undoubted good law in this state. It was expressly approved by the Court of Appeals in Ferguson v. Crawford, 70 N. Y. 253 (267.) The decision of the case has not been so fortunate and in respect to certain judicial determinations made by surrogates’ courts it has been in part overruled and in part disapproved by the Court of Appeals. ■

In Roderigas v. East River Savings Institution, 63 N. Y. 460, it was held that the surrogate, in granting letters upon the estate of the plaintiff, who was not then dead, acted judicially ; that, under the statutes of this state, he had jurisdiction to issue the letters upon a judicial inquiry and determination by him, that death had occurred ; and hence, that the letters1 so granted protected the defendant as an innocent third party as to the amount paid to the administratrix on the faith of the letters, though they were' in fact granted on false evidence. This determination was made upon the construction of the statutes of this state regulating the jurisdiction and proceedings of surrogates’ courts, and it was held that the said statutes furnish a complete system ; that, in enacting the same, the legislature intended to confer upon surrogates’ courts sole and exclusive jurisdiction over the subject of granting letters of administration, and as part of that jurisdiction to determine, upon sufficient evidence, the facts upon which their action must rest ; that, if the case be a proper one, the surrogate must act and issue letters ; and that thereupon the letters so issued are conclusive evidence of the authority, of the administrator, until reversed on appeal or revoked.

The decision of the Court of Appeals in the case last referred to related to a judicial determination made by a surrogate upon the question of death. But as to a like determination of the question of inhabitancy equally strong views were expressed and the decision of Bolton v. Jacks in that respect was expressly disapproved by Earl, J. (p. 469) and questioned by Miller, J. (p. 475) by a reference to two other reported cases which are in conflict with Bolton v. Jacks.

In deference to the views expressed by these learned judges on that occasion, I feel constrained to hold that the decision of Bolton v. Jacks is to be followed no longer, and that, if there is a distinction to be made between a judicial determination upon the question of death and a judicial determination upon the question of inhabitancy, it is one which the plaintiffs should be left to urge upon the Court of Appeals. And inasmuch as letters testamentary stand upon precisely the same legal footing as letters of administration, and it not having been shown in this case, as was shown upon a re-trial of the Roderigas case, that the surrogate did not act judicially, the conclusion to be reached is that it was error to direct a verdict for the plaintiffs. Under the circumstances it is unnecessary to consider the other questions presented by the exceptions.

The exceptions of the defendants should be sustained, the verdict set aside and a new trial ordered with costs to the defendants to abide the event.

Ingraham, J.—(concurring).

I concur with Judge Freedman in his opinion. ' Upon the death of a resident of this state, jurisdiction to administer upon the estate of the deceased vests in the surrogate courts established in the several counties of the state, and this duty devolves upon the surrogate of the county in which the deceased resided at the time of his death.

The question of the inhabitancy of the deceased becomes a question that must be determined by the surrogate to whom an application is made for administration, and I think it is clear that the determination of that question is conclusive except in a proceeding to review such determination and cannot be attacked collaterally. This principle is recognized by the Court of Appeals on the second appeal in Roderigas v. East R. S. I., 76 N. Y. 321, where Church, Ch. J., delivering the opinion of the court says : “ But if a person be actually dead then the surrogate is vested with power over the general subject matter. In the latter case he has the right to act, and although he acts erroneously his action cannot be impeached collaterally. He may commit an error as to inhabitancy which would be sufficient to reverse his decision, but not sufficient to render it void from the beginning, for the reason that he has power to act upon the subject.”

This was the position of the surrogate when the application was made to admit the will of Tallmadge to probate and grant letters testamentary to his executor. He had jurisdiction of the subject matter because Tallmadge was dead. Whether the surrogate of New York county or the surrogate of Columbia county should admit the will to probate depended upon the question of the residence of Tallmadge at the time of his death, and that question the surrogate of New York was required to determine. The petition for the probate of the will alleged that Tallmadge resided in the city of New York, and he determined that he did so reside by the decree admitting the will to probate.

The authority of the surrogate to grant letters testamentary depended upon the probate of the will. It was the appointment of the executors by the will that gave the surrogate jurisdiction' to grant the letters, and if the surrogate had no jurisdiction to probate the will he had no jurisdiction to grant the letters ; yet, I hardly think it would be claimed that the letters issued were void so that a payment of a debt owing to the deceased to such executors would not have discharged the debt.

I think, therefore, that the plaintiffs had no title to the property, and that the complaint should have been dismissed.


source: Caselaw Access Project

author: By the Court.—Ingraham, J.

license: Public Domain

text:
    GEORGE A. WILBUR, Respondent, v. THE NEW YORK ELECTRIC CONSTRUCTION COMPANY, Appellant.

      Contract, when void as being against public policy.

    Plaintiff claims to recover on a contract made with defendant for his work, labor and services in soliciting, advocating and procuring for defendant from the municipal corporate authorities of the city of Utica, a three years contract for the lighting of said city with electricity, and for a franchise granting defendant the right to erect and use wires, poles and other necessary appurtenances, and thoroughfares of said city, etc., etc.,

      Held, That the evidence in the case establishes a contract that is void as against public policy, it being a contract to exert personal influence to induce public officers and members of a legislative body to do official acts and tending towards secret and improper influence over official action. It is not necessary to adjudge that the parties stipulated for corrupt action, or that they intended that secret and improper action and influence should be exerted and used. It is enough that the contract tends directly to those results, and furnishes temptation to plaintiff to resort to secret or corrupt means, or improper devices, to influence legislative action, and tends to subject the legislature to influence, destructive of its character and fatal to public confidence in its action. In Tool v. Norris, 2 Wallace, 255, an agreement for compensation to procure a contract from the government to furnish it supplies, was held against public policy and void, the court saying: “There is no real difference in principle between an agreement to procure favors from legislative bodies and an agreement to procure favors in the shape of contracts from the heads of departments. The introduction of improper elements to control the action of both is the direct and inevitable results of all such arrangements.” In this case the express object of the contract was to influence the municipal corporate authorities of the city of Utica to grant a contract, and the conduct of the plaintiff in his interviews with the aldermen and councilman, and the influence he endeavored to exercise over them, is a practical construction of what was intended by the parties and the object of his employment.

      Held also, That the evidence failed to establish a contract between the plaintiff and defendant, and the plaintiff failed to establish a cause of action against the defendant, and the complaint should have been dismissed.
    Before Sedgwick, Ch. J., Freedman and Ingraham, JJ.
    Decided January 5, 1891.
    On verdict for plaintiff, the exceptions taken by the defendant were ordered to be heard in the first instance at general term.

      A. J. Dittenhoefer and I, M. Dittenhoefer, attorneys and of counsel, for appellant, argued :—
    ' I. The agreement set forth in the complaint being void as against public policy, the action should have been dismissed, (a.) As alleged in the complaint, the claim is principally for work, labor and services rendered by the plaintiff for the defendant “ in soliciting, advocating and procuring for and in the name of the defendant from the municipal authorities of the city of Utica, state of New York, a three years’ contract for the lighting of said city by electricity * * * and in arguments before the said municipal corporate authorities.” (b.) To establish the claims, plaintiff testified : “I first went to the city clerk of Utica, found out what the city was paying for lighting the streets, and other necessary information for me to do my work ; I also learned who were the aldermen and chairman of the committee of the board for lighting the city. After a talk with him, I found out how he was disposed to the plan of lighting the city by electricity. I made frequent visits to the city and got acquainted with nearly all the aldermen. I got many of the councilmen on my side. As time progressed I made frequent visits to them and canvassed the city. * * * I made a full and complete argument before the council, and on. the strength of that and a bid I put in, a vote was taken and we were awarded the contract.” On cross-examination he further testified : “ My first business when I got there was to try and get the contract. For that purpose I went to see all the aldermen and the mayor. I guess I saw all the twelve aldermen except two. I saw them individually, talked the matter over with them, met any objections they might raise and made any explanations they asked relating to the .system and the manner in which we were to do the lighting. I saw them separately and collectively ; also the mayor and city clerk and city attorney, city engineer, city officials and board of aldermen ; and after seeing them separately went before the committee on lighting, made an argument there, and before the mayor talked the matter over extensively with him, went before the board of aldermen wdien in session.; made an argument-Q. But you already captured the aldermen before that ? A. I had tried and I hoped I had. Q. You thought you had? A. Yes, sir, I thought I had. After they had met and heard my argument they passed a resolution in favor of my bid. Q. What prior experience had you had before lobbying in Utica ? A. I have been at it more or less since I have been in business ; all my business life. Q. That did not require any scientific knowledge ? A. It required some experience. Q. A good address and glib tongue. A. Yes, and a general acquaintance with the electrical business. * * * There is no other testimony as to plaintiff’s service in this branch of the work and it stands uncontradicted, (c.) It has been uniformly held that no recovery can be had for services of that character, on the ground that they are detrimental to the public good. Carey v. W. U. Tel. Co., 20 Abb. N. C. ; Tool v. Norris, 2 Wallace, 45 ; Oscanyon v. Arms Co., 103 U. S. 61 ; Frost v. Child, 22 Wallace, 441 ; 16 Howard, U. S. 314 ; Mills v. Mills, 40 N. Y. 553 ; Harris v. Simonson, 28 Hun. 318 ; Millbank v. Jones, 57 Superior, 135 ; Sedgwick v. Stanton, 14 N. Y. 289 ; 5 Watts & Sergt. 315.
    II. The defendant was not bound, by the agreement made between Hapgood and the plaintiff, “ to divide the commissions on the sale of the plant.” There is no evidence—not the slightest—to connect the defendant with Hapgood’s acts, or that it has subsequently ratified the agreement. The contract— whether the one set up in the complaint, as it stood at the trial or as subsequently amended, be conr sidered—was made with Hapgood on the 22d of October, 1887. That was before the defendant corporation was formed, the certificate of incorporation having been filed only in the following November, and there is no evidence that the defendant after its incorporation took any action whatever in the premises. The only evidence that can be said to have any bearing on the question is that Hapgood became an officer of the corporation, and that plaintiff, after the Utica franchise was obtained, was introduced by Hapgood to Soulard, its president, without, however, having any conversation with him about his services in Utica. That is clearly insufficient to establish ratification ; but if any presumption could arise from these facts, it is completely and absolutely rebutted by the evidence of the officers of the defendant, that they neither individually, nor the corporation as a body, ever ratified any agreement between Wilbur and Hapgood. Certainly not the one “ to divide the commissions on the sale of the plant,” on which recovery was finally had.

      III. As the defendant did not sell the plant, or earn or receive any commissions on its sale, plaintiff was not entitled to recover against the defendant on the agreement “ to divide the commissions.” To entitle the plaintiff to recover, he was bound to show affirmatively that the defendant either made a sale of the plant, or received or was entitled to the commissions. The franchise was not included in the plant; only the dynamos, lamps, towers, mast-arms, buildings, and generally the apparatus for generating and working the electricity were included. The word “ plant ” implies that, and it was proven by the plaintiff, by Cartwright, by McDonald, by Grimwood and by Hapgood. That the plant was never owned by the defendant was not disputed. It was the individual property of Hapgood, who bought and paid for it with his own money and was never assigned or sold by him to the defendant. The defendant owned the franchise, but, as already stated, it was not included in the sale of the plant. It may be contended that the statement of Hapgood to Wilbur that the commissions on the sale of the plant amounted to $10,000, is sufficient to sustain the verdict, but surely the defendant cannot be bound by Hapgood’s statement of the profit he made, assuming that he ever made it, which he denied. As the plant was not owned by the defendant but by Hapgood he, of course, could not represent the defendant in the sale, and what he said as to the profit realized could not therefore be evidence against defendant. But even if it were otherwise, if the plant had been the company’s, Hapgood could not bind the company by such representations, for that was not within the scope of his duties as an officer.

      James Edward Graybill, attorney and of counsel, for respondent, argued :—

      I. The defendant is bound by the agreement that Hapgood made with the plaintiff. It is in evidence that the defendant transacted business under its corporate name long prior to its actual incorporation and to the time the agreement was entered into between the plaintiff and Hapgood ; that Hap-good was a promoter of, and subsequently the vice-president and treasurer of, the defendant corporation ; that he “ was the general business man of the defendant corporation,” that he “ was in fact the New York Electric Construction, Company,” that he usually transacted and performed all the business and attended to all the affairs of the defendant at the offices of the defendant, and had charge of this Utica matter ; that he was allowed habitually to assume and had openly exercised these powers without objection on the part of the defendant. That plaintiff was engaged and his services were rendered, for and on behalf of and with the knowledge and approval of the defendant’s officers and that the defendant received the benefit of his services at Utica and subsequently ratified and conformed his acts by accepting the contract with the city of Utica which he had procured, and then disposed of the same at a great advance over its cost. “ A corporation which takes and retains the benefit of a contract, made for it by its promoters, although made prior to its corporate existence, is estopped from denying that the contract is its contract.” McLaughlin v. Concordia College (Mo. App.), 2 West. 426, and cases cited. “ A corporation having availed itself of the benefits of purchase made on its behalf by using the articles bought, is estopped from setting up the fact that the agent exceeded his powers in making the purchase.” Ten Broek v. Winn Boiler C. Co. (Mo. App.), 2 West. 442. “It is a general principle, that where a company, by taking the proper steps, can become a corporation, and holds itself out as such, and contracts obligations with persons dealing with it in good faith, it cannot avoid corporate liabilities by setting up "that it has not taken all the steps prescribed as conditions precedent to its legal existence ; and upon the same ground where it has dealt in excess of its powers and retains the fruits of its dealings, it cannot, nor can any one in its place, refuse to pay the consideration to one who has acted in good faith.” Abb. Tr. Ev. 28, 29, and cases cited. “ To sustain an action for services, it is enough to show that the officer or agent who made the engagement did so' within the scope of his duty or authority, or that the engagement was performed with the knowledge of the directors and they received its benefit without objection, and in such a case, the corporation having enjoyed the performance, will be presumed to have ratified the contract and will not be permitted to deny the authority of the agent.” Abb. Tr. Ev. page 42.
    II. The services rendered by plaintiff are not void as against public policy. It is not contended that they influenced legislation, nor is there any proof of any improper conduct or the use or attempt to use any improper or undue influence of any kind on any one. There was no element of lobbying in the case until the astute counsel for the appellant introduced his lobbying questions for the purpose of establishing some shadow" of excuse for an appeal from a verdict which he was convinced would be against his client. The services consisted, according to the evidence, in going to "Utica on behalf of the defendant in answer to a public invitation to compete for lighting the city, visiting the clerk to ascertain what was required, i. e., “to find out what the city was paying for lighting its streets, and get other information necessary for him to do his work ; ” and the committee on lighting to ascertain if they were disposed to the plan of lighting the entire city by electricity, and then “ to see if it could not be lighted by electricity, at the same sum paid for a poorer light, and. to locate the necessary lights, etc,, and see if defendant could afford to put in a bid, and making his estimate upon which to base his bid ” preparing the bid and submitting it in accordance with the city’s advertisement appearing before the mayor and committee on lighting “ to tell them what he proposed to do and how, and just what his bid would be, and to explain the advantages of the 1 Jenny ’ system and to meet any objection they might raise, or make any explanation they might ask, in relation to the system and the manner the defendant was to do the lighting and to advocate the acceptance of the defendant’s bid,” attending before the board of aldermen, with other competitors, “ to make an argument for the adoption of his plan and the acceptance of his bid.” The services subsequent to November 3, 1887, are not claimed to be illegal. On cross-examination the plaintiff did not change his statement as to what he had done, although the able and learned counsel for the defendant deftly sought to bring out evidence to skow wrongful acts, and by shrewd questions to entrap the witness into an admission that, in his honest and zealous efforts to serve the defendant, he had so far transgressed the moral law as to enable it to sneak out of its legal obligation to compensate him for services that netted it a clean $32,000, in cash or $172,000 in stock and bonds. There is nothing illegal, immoral or improper in such action. It was a lawful effort to get a lawful contract for a lawful purpose. The plaintiff was simply acting as the agent of one corporation, whose business it was to sell electric apparatus, and negotiating a sale with the agent of another corporation that desired to purchase such apparatus. It was a commercial trans - action—a bargain and sale; the city of Utica wanted its streets lighted, and the New York Electric Construction Company was ready and willing to do it, cheaper and better than any one else, if the agents of the city of Utica, who had the matter in charge, could be informed of that fact, and it was a proper thing for Mr. Wilbur to confer with them and explain to them the merits of his principal’s wares and the advantage to be derived from their purchase. It did not in any way concern or affect legislation— it did not result in any legislation, but merely in the execution ®f a written contract between two contracting parties. It was necessary to see the clerk and the committee, and the other officers of thé city, for the reasons above given. There is no evidence of any improper motives or of any attempt by political, personal or any other undue influence, to induce them or any of the city officers to adopt his plan and accept his bid—on the contrary, the evidence shows that his success was due to his careful and elaborate preparation of facts and figures, and to his thorough knowledge and experience in the business, which enabled him to prepare and present his case to them in so masterly a way as to convince them that it was to the interest of the city to accept his bid. Lyon v. Mitchell, 36 N. Y. 239 ; Mills v. Mills, 40 lb. 543 ; Southard v. Boyd, 51 lb. 179 ; Denison v. Crawford Co., 48 Iowa, 211. In the case of Lyon v. Mitchell, supra, the court held—opinion of Mr. Justice Hunt : “ As a general rule contracts for contingent compensation for obtaining legislation or to use personal, secret or sinister influence on legislators, are void ; but a different principle prevails when property is offered for sale to the government and where a bargain is sought to be made with them, and where there is no concealment of the agency—it then becomes a matter of traffic. The present case was one of bargain and sale simply ; no fraud upon the government is imputed ; no suggestion is made of pecuniary influence to be used ; no intended corruption is suggested. The case is free from the existence of any of these elements, * * * A contract for an honest purpose, avowed to the body before which the appearance is made, and for the use of just arguments and sound reasoning, is not unlawful. * * * The decision in Norris v. The Tool Co., 2 Wall. 45, confounds a sale or traffic, openly made by an avowed agent to a party wishing to purchase, with the forbidden case of an interference with legislative action or executive clemency ¿ where the party does not profess to act upon commercial principles. There is a manifest difference in the principle governing the cases. I think that case was not well considered and cannot adopt it as an authority for the present. Mr. Justice Grover, in a dissenting opinion (16. 686), also draws the distinction between skilled services and services of a political or lobbying nature. He says : “ The inquiry upon this state of facts arises whether this extravagant commission ($30,000) was agreed to be given for the extraordinary skill of the plaintiff in such negotiations, or whether it was to compensate him for bringing to bear upon the administration political influence to induce a purchase it would not otherwise make, or- upon terms more favorable than it would otherwise accept. If to compensate for the former, the contract is lawful, but if for the latter, it is corrupt and against public policy. In the case of Mills v. Mills, supra, where the agreement in question was founded upon an undertaking on the part of the plaintiff reciting that a bill was pending in the senate which granted to the plaintiff certain railroad franchises in the city of Brooklyn, and promising to give all the aid, time, influence and exertion in his power to procure the passage of the bill referred to, it was held : “ That such a contract was void as against public policy, as leading to secret, improper and corrupt tampering with legislative action, and furnishing a temptation to the plaintiff to resort to corrupt means or improper devices to influence legislative action and tending to subject the legislature to influences destructive of its character and fatal to public confidence in its action.” In this leading case bn “ illegal contracts ” the opinion was written by Mr. Justice Hunt, who wrote the opinion in Lyon v. Mitchell, supra, and refers to and approves the latter case on the point in question. In the case of Southard v. Boyd, supra, in which it was claimed that plaintiff’s services were illegal, the court there held—citing Lyon v. Mitchell : “ That although one of the plaintiffs was a son and another a son-in-law of the government agent, whose business it was to select the vessels for the government, and that plaintiffs had facilities for chartering vessels which others had not, yet they did not contract to do any illegal services, nor agree to use any corrupt means to procure the charter. The fact that they had intimate relations with the government agents did not forbid their employment, and the order of the general term was reversed and judgment upon the verdict affirmed with costs in favor of plaintiff.” In the case of Denison v. Crawford Co., supra, in which the plaintiff was authorized by defendant to make the proper application to the general government for swamp lands or indemnity therefor, and was to receive for his services one-half of what he might procure, held, “ That the contract was not void as against public policy, although to affect the object of the contract certain congressional action became necessary, which plaintiff aided in procuring by legitimate means—that a county may lawfully employ agents for such purpose, and an agreement to pay them is valid.”
    III. The defendant, not having pleaded the defence of illegality, cannot avail itself of it in the action. Milbank v. Jones, 57 N. Y. Sup. 135, opinion of Mr. Justice Freedman, and cases cited by him ; Dingeldein v. Third Ave. R. R. Co., 9 Bosw. 79 ; Honegger v. Wettstein, 13 Abb. N. C. 393 ; s. c. 94 N. Y. 252; Tathill v. Roberts, 11 Weekly Dig. 35; Valton v. Natl. L. &c. Co., 20 N. Y. 32; Boswell v. Welshœffer, 9 Daly, 196; O’Toole v. Garvin, 1 Hun, 92; Codd v. Rathbone, 19 N. Y. 37.
   By the Court.—Ingraham, J.

The contract sued on is alleged in the complaint as follows : “At the special instance and request of the defendant herein, the plaintiff rendered to and for said defendant certain work, labor and services in soliciting, advocating and procuring for and in the name of the said defendant from the municipal corporate authorities of the city of Utica in the state of New York, a three years contract for the lighting of said city by electricity, and for a franchise granting to said defendant the right to erect and use wires, poles and other necessary appurtenances in the streets and thoroughfares of said city, and to transact its business in and throughout said city ; and in the making of drafts, surveys, examinations, calculations, illustrations and drawings to be used in the preparation of the bid for the contract aforesaid, and in the arguments before the said municipal corporate authorities; and after the awarding of said contracts to said defend-1 ant by said municipal corporate authorities, in making examinations and surveys for the location of, and in locating and superintending the erection of the electric lights in said city pursuant to the said contract.”

To prove this allegation in the complaint, plaintiff testified to a conversation between himself and one Hapgood at which time Hapgood told the plaintiff “to go to Utica and, if possible, secure a contract for lighting all of the city or as much of it as he could get. He told me he wanted me to secure a contract and wanted me to use my own discretion in the matter of putting the bid and doing the preliminary work.”'

Plaintiff went to Utica, and as portion of the work that he said, he did, “I made frequent canvasses of the city and got acquainted with nearly all the aldermen. I explained how much more advantageous it would be lighting the city by our system of electric light than by their combined system. I got many of. the conn oilmen on my side as time progressed. I made frequent canvasses to them, and canvasses of the city. On Friday evening I had a. meeting with the • committee of the council in the chairman’s office, at which the mayor was present. I told them at that time what I proposed to do and how, and just what my bid would be, and asked them if they thought it was for the best interest of the city to advocate my bid, and they promised to do so. That evening the bids were all opened; it was a very hotly contested fight, and there were many bids by different companies.”

Plaintiff was not a lawyer but described himself as in the electric light business and as representing other electric light companies in procuring contracts for the sale of their apparatus. He said in answer to a question “What prior experience have you had before lobbying in Utica,” that he had been at it more or less since he had been in business; all his business life.

I think this contract is void as against public policy. It has long been settled that a contract to exert personal influence to induce a public officer or member of a legislative body to do any official act is illegal and void, and this principle has been applied to all the departments of government, judicial, executive or legislative, and is placed upon the broad principle that all contracts leading to secret, improper and corrupt tampering with official action are void.

Thus in Sedgwick v. Stanton. 14 N. Y. 294, the court say : “ Persons may no doubt be employed to conduct an application to the legislature as well as to conduct a suit at law, and may contract for and receive pay for their services in preparing documents, collecting evidence, making statements of facts or preparing and making oral and written arguments, provided all these are used or designed to be used for the legislature itself or some committee thereof as a body, but they cannot with propriety be employed to exert their individual influence with individual members or to labor in any form privately with such members out of the legislative halls. The point of the objection in this class of cases then is the personal and private nature of the services to be rendered.”

And in Mills v. Mills, 40 N. Y. 546, it was stated : “ To procure the passage of such a law for the benefit of the defendant, he undertook to use his utmost influence and exertion. This contract is void as against public policy. It is a contract leading to secret, improper and corrupt tampering with legislative action. It is not necessary to adjudge that the parties stipulated for corrupt action or that they intended that secret and improper resources should be had. It is enough that the contract tends directly to those results ; it furnishes a temptation to the plaintiff to resort to corrupt means or improper devices to influence legislative action. It tends to subject the legislature to influence destructive of its character and fatal to public confidence in its action.”

And in Tool v. Norris, 2 Wallace's Repts. 255, an agreement for compensation to procure a contract from the government to furnish it supplies was held against public policy and void, the court saying : “ There is no real difference in principle between an agreement to procure favors from legislative bodies and an agreement to procure favors in the shape of contracts from the heads of departments. The introduction of improper elements to control the action of both is the direct and inevitable result of all such arrangements.”

It is sometimes difficult to draw the line between contracts that fall within the prohibition above stated and those which provide for legitimate services, for it may be said to be settled that when a person has something to sell which the government wishes to buy, or is able to make a contract to do an act which the government wishes done, he has a perfect right to appoint an agent to act for him in making the sale or the contract, and that such an agent is entitled to recover compensation for his services. And it is also clear that an employment to appear before a legislative committee and publicly favor the passage of a law is valid, but it seems to me equally clear that a contract which contemplates the use of personal influence or solicitation with public officers to procure a contract is as much opposed to public policy as a contract to use personal influence or solicitation with members of the legislature to procure the passage of a law; in either case the object to be attained is to induce a public officer or a legislator to act from personal motives and not for the benefit of the public; in other words to violate his duty, and public policy requires that no contract which recognizes such influences shall be upheld.

The case of Lyon v. Mitchell, 36 N. Y. 235, is an illustration of a contract which has been held valid, as that was the mere appointment of an attorney to sell property to the government with an agreement for compensation for services to be rendered under the employment. Nothing appeared in the contract that would indicate that anything was to be done by the agent except the ordinary act of offering to the government officials the property to be sold.

In this case, however, the services to be performed were “ soliciting, advocating and procuring ” a contract and a right to use the street from the common council of the municipal corporation.

The express object was to influence the municipal corporate authorities of the city to grant a.contract, and the conduct of the plaintiff in his interviews with the aldermen and conn oilmen, and the influence he endeavored to exercise over them, is a practical construction of what was intended by the parties and the object of the employment.

I also think the proof failed to establish that any contract was made with the defendant at the time of the alleged conversation with Hapgood. The defendant was not incorporated. Hapgood spoke in the first person. What he said was, “I will'pay you for your time and services and all expenses, and if you get the contract we will divide the commissions on the sale of the plant ; ” and again he said, “ Get the contract and I will do what is right by you : we will divide the commission or sell the plant.” There was thus no agreement on behalf of a company to be formed whereby the company on accepting the benefits of the contracts would be ■held liable for its obligations, and the form in which the compensation is to be made would indicate that it was one half of the commissions that Hapgood, was to make or receive that was to be divided with plaintiff. The corporation, after it was formed, was the contracting party, sold the plant to the city of Utica and received a certain consideration therefor. It received and could receive no commissions as it was the principal and made the sale; it was the broker or agent for the company who would receive the commission, and it is clear that the agreement that was made was to divide not what the company should receive but what Hapgood individually should receive.

Plaintiff on cross-examination was asked, “ Who got the commissions ? ” and answered, “ Nobody got the commissions, but there was $10,000 commission on the plant.”

If nobody got the commissions under the contract as alleged in the complaint as amended, there was nothing to divide, and consequently plaintiff failed to show that he was entitled to recover from any one, and in no aspect of the case can it be held that the corporation, that was not in existence at the time of the employment, could be held liable on an agreement made between third parties to divide commissions for services to be rendered on a sale to be made by the corporation.

I think, therefore, the plaintiff failed to show a cause of action, and the complaint should have been dismissed. Exceptions sustained and new trial ordered with costs to abide the event.

Sedg-wick, Oh. J., and Freedman, J., concurred.


text:
    JOSEPH LEVI, et al., Respondents v. EDWARD S. NEWHALL, et al., Appellants.

      Appeal from ajudgment entered on a referee’s report, practice on, exceptions when unnecessary.—The general ¿erro will consider without an exception the question whether the findings of fact are against the weight of the ■ evidence, but to present that question there must be a certificate of the referee that all of the evidence is in the case.

    Before Trtjax and Dugro, JJ.

      Decided March 4, 1890.
    Appeal from a judgment entered on the report of a referee.

      George P. Webster and Allen McDonald, for appellants.

      Simpson & Werner, for respondents.
   The court affirmed the judgment below, holding, among other things (Truax, J., writing and Dugro, J., concurring), as stated in the head note.


text:
    ROBERT C. DAVIDGE, Appellant v. RUSSEL COE, Respondent.

      Appeal, dismissal of—A motion to dismiss an appeal is authorized only on the failure of the appellant on non-enumerated motions to serve printed copies of the papers as required by the general rules of practice.

    Before Truax and Dugro, JJ.

      Decided March 4, 1890.
    ? Motion to dismiss an appeal from a judgment entered on a referee’s report.

      F. C. Cantine, for appellant.

      Henry Sanger Snow, for respondent.
   The court denied- the motion, holding (Truax, J., writing, Dugro, J., concurring) as stated in the head note.


text:
    HENRY BOHLEN, Respondent v. THE METROPOLITAN ELEVATED RAILWAY COMPANY, et al., Appellants.

      Findings of fact, irreconcilable of, cannot after judgment rendered be remedied by the judge icho made them on a motion made before him sitting at a term other than that at which the judgment was rendered.

    Before Sedgwick, Ch. J., and Dugro, J.

      Decided March 4, 1890.

      Appeal from an order made on the 9th day of December, 1889, at a special term held at chambers, opening a judgment rendered on June 6, 1889, at speciál equity term upon findings made on the said June 6th by the judge upon a trial before the court without a jury, and amending the findings nunc pro tunc. The order was made on the respondent’s motion and was granted by the judge who made the findings.

      Sackett & Bennett, for respondent.

      Davies & Bapallo, for appellants.

       Note.—The Court of Appeals on the 17th day of June, A. D. 1890, reversed the above decision. Thereafter, upon the authority of that decision of the Court of Appeals, the general term, on the 27th of June, 1890, affirmed a similar order made in the case of Charles Lippe, respondent v. The Metropolitan Elevated Railway Company, appellant, in which the same counsel were engaged.

   The court reversed the orders (Dugro, J., writing, and citing Rockwell v. Carpenter, 25 Hun, 529; McLean v. Stewart, 14 lb. 472 ; Gardiner v. Schwab, 34 lb. 583 ; Freeman on Judgments, §§ 70-101, Sedgwick, Ch. J., concurring), holding as stated in the head note.


author: Per Curiam.

text:
    CHARLES B. GUMB, Respondent v. THE TWENTY-THIRD STREET RAILWAY COMPANY, Appellant.

      Remission of portion of verdict, court at special term at chambers has power to permit it under § 1189 Code Civil Procedure.

    Before Sedgwick, Ch. J., and Dugro, J.

      Decided March 4, 1890.
    In this case the jury rendered a verdict for the plaintiff for $500. Before entry of judgment plaintiff’s attorney filed a stipulation to remit one dollar of the verdict. Judgment was entered for the reduced amount and costs.

      Thereafter defendant’s counsel moved to vacate the judgment for irregularity, on the ground that it was not in conformity with the verdict ; and plaintiff’s counsel moved for leave to remit one dollar of the verdict and that such leave be granted nunc pro tunc.

    The motions were heard together. That of defendant was denied and that of plaintiff was granted. From the order entered on the decision defendant appealed.

      Leslie W. Russell, attorney and of counsel, and Welton C. Percy of counsel, for appellant.

      H. B. Closson, attorney and of counsel, and C. M. Hough of counsel, for respondent.'
   Per Curiam.

The court at special term had discretionary power to make the order appealed from. The court last referred to in § 1189 of the Code of Civil Procedure is the trial court and the court at special term.

No such inference as is claimed by the appellant can fairly be drawn from the fact of the appearance in the Code of sections 3016 and 3176. These provisions were incorporated in the Code in order to make it matter of absolute right for a prevailing party to remit part of a verdict, and to render an application to the court unnecessary. In other proper cases the application is addressed to the discretion, of the court. It does not appear that there was an improper exercise of discretion in granting the order. It should, therefore, be affirmed.


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    JOHN MIDDLETON, Appellant v. HORATIO N. TWOMBLY, and Another, as Executor, etc., Respondents.

      Statute of limitations—Constructive trustee, where one is justified ex necessitate in receiving money, knowing it to be money of another, he on receiving it constitutes himself the trustee of the other for the purpose of its transmission to the rightful owner with all reasonable speed. The cause of action for the money arises the moment it is received.

    Before Truax and Dugro, JJ.

      Decided March, 4, 1890.
    Appeal from order setting aside a verdict which had been directed in favor of the plaintiff and granting a new trial.

      Norwood & Coggeshall, attorneys, and Carlisle Nor-wood of counsel, for appellant.

      Joseph W. Howe, attorney and of counsel, for respondents.
   The general nature of the case was this. The plaintiff was a merchant, residing and carrying on business in China, and William H. Fogg was a merchant, residing and carrying on business in New York. They entered into an agreement, not in writing, whereby the plaintiff was to ship merchandise from China, consigned to Fogg in New York, and Fogg was to receive the merchandise in New York, pay freight, premiums on fire, maritime and war insurance, and all other necessary expenses, and sell the merchandise, and remit one-half of the net proceeds to plaintiff, after charging against the adventure all said expenses, including payment of said insurance, and retaining the other half of said net proceeds as his (Fogg’s) share. This mode of dealing, which had in it the elements of a partnership, was on some occasions varied by payment of fixed commissions to Fogg, instead of a half share of the net profits. Fogg from time to time rendered statements and accounts to plaintiff which were accepted by the plaintiff as correct. In January, 1865, these transactions wholly ceased, and, so far as appears, after that date the parties had no further dealings or correspondence with each other.

From time to time between February 2d, 1864, and February 8th, 1867, Fogg received various sums of money from said insurance companies as rebates of sums paid them by Fogg as premiums on said insurance on said merchandise consigned to Fogg by the plaintiff, of which receipt of said money Fogg never informed the plaintiff, and Fogg never remitted to plaintiff any part of said moneys so by him received, but retained the same in his possession. Fogg died in 1884. The latest of these receipts was February 8th, 1867. In 1887, the plaintiff for the first time became aware that such rebates had been made, and such moneys paid to Fogg on account of the same.

The plaintiff sues for his share of the moneys, so paid to Fogg, as being his money in the hands of Fogg, and which Fogg was, in equity and good conscience, bound to pay over to the plaintiff. The defence was the statute of limitations.

The Court below (O’G-okman, J.,) in considering this defence, wrote as follows : “ The defendant Fogg’s executors claim that the plaintiff’s action accrued at the time when these moneys on account of rebates were received by Fogg.

“ If they are right in that claim, the plaintiff’s action is barred under the statute of limitations, and the direction of the judge to the jury to find a verdict in favor of the plaintiff was error, and the complaints should have been dismissed.

“ The plaintiff contends that his cause of action did not accrue until the demand made on the executors in September, 1888, in which case the verdict should stand.

“ It is not easy to gather from the numerous judicial decisions any rule of law on the subject, of general application. Each case must stand by itself, and in each, the question must be considered according to its own special facts.

“ In the case at bar, the Insurance Companies were justified in paying these rebates into the hands of Fogg. He had transacted all the business of these shipments in New York, under his own business name of Fogg Brothers, and he alone was known in New York, in relation to said shipments, and had the possession and apparent ownership of the merchandise. Fogg was justified in receiving the payments of such rebates from the Insurance Companies. As to the payments made to him before January, 1865, and while the agreement between ■ him and plaintiff was still in force, Fogg had an undoubted right to receive them. As to the payments made on account of these rebates, after the cessation of all dealings between the plaintiff and Fogg, Fogg was justified' in receiving the money, ‘ ex necessitate,’ because no one but he had any apparent right to receive it in New York, but by receiving it, he assumed the responsibility of transmitting to the plaintiff, with all reasonable speed, such share of the moneys as he knew was the property of the plaintiff, and he constituted himself the trustee of the plaintiff for that purpose and to that extent.

“ I do not see why, in order to constitute a cause of action, a demand should have been made by the plaintiff on Fogg, for plaintiff’s share of that money. The object of such demand is to apprise the defendant of the duty he is required to perform, and give him an opportunity to perform it. But where a trustee is himself an actor in the transaction and has full knowledge of his duties, such notice and demand are not required. Abbott's Trial Evidence, 1883, page 234, 235 ; Brent v. Maryland, 18 Wall. 430, 434 ; Jessop v. Miller, 2 Abb. Ct. of App. Dec. 449 ; Stacy v. Graham, 14 N. Y. 497. The weight of authority seems to me to sustain that view of the question. Howard v. France, 43 N. Y. 593 ; Re Cole, 34 Hun, 320 ; Knapp v. Simon, 96 N. Y. 288, 294 ; Pierson v. McCurdy, 100 lb. 608 ; Price v. Mulford, 107 lb. 308. The provisions of the Code of Procedure in point in this case were the same as are found in the Code of Civil Procedure, §§ 380, 382. Section 410 of the ‘ Code of Civil Procedure ’ is new, and is not found in the ‘ Code of Procedure ’ which was in force at the time the moneys in rebate of premiums on insurance were paid into the hands of Fogg.

“ I have read and considered the authorities cited on behalf of the plaintiff on this subject.

“ In my opinion the weight of the argument is on the side of the defendant.

“ Looking at the question merely as one of mercantile ethics, it would seem unjust and improper that a merchant, receiving money, which he knew to belong to another, should be justified in retaining that money, in keeping secret the fact that he had received it, and had it in his possession—and that no legal obligation or responsibility on his part to the lawful owner of the money should accrue until formal demand has been made on him by the owner. In my opinion the obligation and cause of action accured at the moment the money was received. The result of these views is that the plaintiff’s cause of action against Fogg accrued in 1867, when the last of these rebates was paid into the hands of Fogg, and the action is long since barred by lapse of time.

“As to the instances in which the rebates were paid into the hands of Fogg, while he received a fixed commission on the sales, instead of a share of the net profits, the plaintiff claims that Fogg was acting as a foreign factor. I see no reason to think that any other or different rule would prevail, if Fogg had been a factor or other agent. He would have had, no doubt, a lien on the money for any sums justly due to him for commissions or otherwise, but the money in nowise belonged to him, but, except as to that lien, it belonged to the plaintiff absolutely. Baker v. Nat’l Ex. Bank, 100 N. Y. 33. No commissions were in fact due and unpaid, and the factor or agent held the moneys on an implied trust for his principal, to whom they all belonged. Boss v. Curtis, 30 Barb. 240. A factor does not receive the proceeds of sales of the property of his principal as his own money, but as the money of his principal. Edioards on Factors, § 92.

“ But in the casé at bar, the moneys received by Fogg from the insurance companies was not any part of the proceeds of the sales, which he had effected, and on which he had a lien. It was money which, although arising indirectly out of the transaction in which he may have acted as factor, was unexpected and fortuitous, and derived out of an extraordinary rebate of moneys paid after the factor had been completely paid for his services. As in other cases the money was paid into the hands of the factor, because there was no one else in New York who had an apparent right to receive it, and when paid it was in his hands the property of the plaintiff, and the factor was charged with the implied trust to remit it to the true owner with all reasonable dispatch.

“ In my opinion Fogg did not, as to the receipt of these moneys, act in the capacity of 6 foreign factor,’ bnt only as trustee for the plaintiff, and under the obligation of remitting the money to the plaintiff when received. No demand was necessary to constitute a cause of action against Fogg. The money was not his money, but the money of the plaintiff, and the plaintiff had a cause of action against Fogg without any demand.

“ It may be that these views of this action tend to work a hardship on the plaintiff and defeat a claim which is in itself meritorious. But that is the result of the inherent defect of legislation which fails to anticipate and provide for all the various new conditions which present themselves in the ever varying transactions of men.

“ There must be a new trial, with costs to abide the event of the action.”

Per Curiam.

Order affirmed on opinion of the court below.


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    THE EDISON MANUFACTURING COMPANY, Respondent v. ROWLAND N. HAZARD, Impleaded, Appellant.

      Examination before trial, when not set aside on the ground that it might, call for. testimony that could be used to subject the examined party to a statutory penalty.

    Before Sedgwick, Ch. J., and Dugro, J.

      Decided April 9, 1890.
    Appeal by defendant from an order denying his motion to set aside an order for his examination before trial.

      Moses R. Crow and Albertus Perry, for appellant.

      P. Q. Eckerson, for respondent.
   Per Curiam.

The objection taken to the order for defendant’s examination, was that the proposed examination might call for testimony that could be used to subject the defendant to a statutory penalty. The order confined the examination by such limits that it cannot now be said that the apprehended result must happen.

■ In this case, it is best that any question as to a privilege by defendant against inculpating himself be determined upon the examination, when his rights will be completely protected.

Order affirmed with ten dollars costs.


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    HANNIBAL G. CUTUGNO, Respondent v. THE MAYOR, etc., OF THE CITY OF NEW YORK, Appellant.

      Interpreters of General Sessions, the right to appoint is vested in the recorder, city judge and, judge in the Court of General Sessions—Civil service laws, rules and regulations do not govern or apply to such appointments.

    Before Sedgwick Ch. J., and O’Gorman, J.

      Decided May 5, 1890.
    The question arose on an appeal from an order sustaining a demurrer to an answer setting up as a defence to a complaint for services rendered by the plaintiff as interpreter to the Court of General 'Sessions of the Peace of the city and county of New York, that he had not been appointed as such interpreter in compliance with certain rules established for the regulation of the civil service of the state of New York.

      William H. Clark, counsel for the corporation, for appellant.

      Le Barbier & Brewster, for. respondent.
   . The court held (O’Gorman, J., writing, Sedgwick, Ch. J., concurring) as set forth in the head note, and affirmed the order, with costs.


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    THOMAS J. CLUTE, Appellant v. RICHARD MAHON, et al., Respondents.

      Opening default taken for non-appearance on call of calendar, insufficiency of affidavits.

    Before Sedgwick, Ch. J., Freedman and O’Gorman, JJ.

      Decided May 5, 1890.
    Appeal by plaintiff from an order denying his motion to open a default.

      T. J. Clute, for appellant.

      John Hardy, for respondents.
   Per Curiam.

It does not appear that the judge, in denying plaintiff’s motion below, did not exercise properly the discretion he was bound to use upon such a motion. The plaintiff, who was an attorney, left the court room a short time before the case was called, “ leaving some one in attendance at court to answer should the case be called during his, deponent’s, absence.” The plaintiff, was absent from court about fifteen minutes, and “ upon his'return he learned that his case was dismissed on motion of defendants’ attorney.” This does not show any excuse. It is vague. It does not assert even that the plaintiff was ready and intended to go to trial. It does not give the name of plaintiff’s representative in his absence and show what that representative did or the immediate circumstances of the dismissal .of the complaint.

The order should be affirmed, with costs.


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    BYAM K. STEVENS, Respondent v. THE NEW YORK ELEVATED RAILROAD COMPANY, et al., Appellants.

      Stenographer's minutes, expense of procuring a copy of when taxable. Ffaudler Co. v. Sargent, 43 Hun, 154, distinguished.

    Before Sedgwick Ch. J. Freedman and O’Gorman, JJ.

      Decided May 5, 1890.
    Appeal from an order of the special term denying defendants’ motion for a retaxation of costs.

      Davies & Rapallo, for appellants.
    6r. W. Van Nest, for respondent.
   Per Curiam.

The expense incurred for procuring a copy of the stenographer’s minutes was allowed by the clerk as a reasonable and necessary disbursement on appeal upon proof by affidavit that such copy was necessary to enable the respondent to propose amendments to appellants’ proposed case and to make at the end of each amendment the proper reference to the stenographer’s minutes as required by rule 9 of this court. To such a state of facts the opinion expressed in Pfaudler Co. v. Sargent, 43 Sun, 154, to the effect that the fees of a stenographer for a copy of his minutes are not taxable even when procured for the purpose of enabling a party to propose amendments to a case, does not strictly apply. Moreover, the cases cited in support of said opinion are all cases where the fees were sought to be taxed on the entry of the original judgment, and not on appeal. In addition it was shown in the case at bar in opposition to the motion for a retaxation that the defendants had appealed to the court of appeals. This constituted, even under the decision of Pfaudler Co. v. Sargent, a waiver of the right to move for a retaxation.

Under all the circumstances the learned judge below was right in denying defendants’ motion for a retaxation, and the order appéaled from should be affirmed, with ten dollars costs and disbursements.


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    OSCAR SCHMIDT, Respondent v. CHARLES H. REED, et al., Appellants.

      Time, may be made of the essence of the contract, although not, expressly stated so to be in the contract itself. Contract for sale of real estate calling for payment by the vendee of a part of the purchase money by the assumption of a mortgage having a certain time to run, effect of vendoi's being unable to convey subject to such a mortgage on the law day, although he shortly after became able to do so—Specific performance, action or counter-claim for by vendor when relief not granted in above put case— Vendee, when he may recover his deposit and expenses of examination of title in a case as above put.

    Before Sedgwick, Ch. J., and Freedman, J.

      Decided May 5, 1890.
    Plaintiff as vendee and defendants as vendors entered into a contract for the sale and purchase of certain lands on October 18, 1888. Plaintiff was to pay the purchase money partly in cash and partly by taking the premises subject to a mortgage for $22,500, bearing interest at five per cent and having five years to run from November 1,1886. The deed was to be delivered on November 15, 1888. On November 12th plaintiff discovered that the mortgage was due November 1, 1889. He immediately on that day (November 12th) gave notice thereof to defendants ; and also that he would insist on the production, on the day fixed for the closing of the title, of an extension of the mortgage to the period mentioned in the contract. On the 14th of November defendants’ attorney (having in the meantime ascertained that there would be some delay in procuring an extension of the mortgage communicated that fact to plaintiff’s attorney who then still insisted that the extension should be ready at the time fixed for the closing of the title) called on plaintiff’s attorney and offered to give ample security that the plaintiff would not be called on to pay the mortgage until the time mentioned in the contract, and asked for an extension of the time of closing, which request was refused by plaintiff’s attorney.
    On November 15th, the plaintiff and his attorney, appeared at the place specified in the contract for the closing of the title and tendered the money called for by the contract. The defendants stated that they had not yet obtained an extension of the mortgage ; that they expected to procure it, and tendered a deed of the premises, containing a provision providing for the assumption of the mortgage maturing November 1, 1889, and a covenant on the part of the defendants that they would procure an extension or hold plaintiff harmless, in case the payment of the mortgage was called for pursuant to its terms. The plain tiff ref used this deed and demanded return of the money paid by him on signing the contract, and refused to extend the time for performance of the contract.

      On November 23d, a deed, executed by the mortgagee extending the time for payment to November 1, 1891, was by the defendants’ attorney tendered to the plaintiff, which he refused, and on the same day this action was commenced by plaintiff to recover back his deposit, a reasonable counsel fee for searching the title and the disbursements incurred in and about the same. The defendants by their answer claimed a specific performance by the plaintiff.
    The action was tried as an equity action at an equity special term before the court without a jury.
    . The learned judge before whom the cause was tried, held that by the demands made by plaintiff on the 12th and 14th days of November, time became of the essence of the contract; also held that defendants had not shown themselves entitled to equitable relief and that to grant it would not be in accordance with public policy, and found in favor of plaintiff for his claim for his deposit and the expenses of examining the title, and against defendants on their claim for a specific performance. From this judgment entered on the findings the defendants appealed.

      William C. Reddy, for appellants.

      Henry C. Botty, for-respondent.
   Per Curiam.

The judgment should be affirmed, with costs, upon the opinion of the learned judge at special term.

       Note.—If the opinion of the judge at special term had been received by the reporters in season the case would have been reported in full. As the questions involved are of general interest it has been deemed proper to report the opinion of the Court below here. A perusal of the opinion will, it is hoped, confirm the views of the reporters. The opinion, after reciting the facts, as set forth in the head note, was as follows:—
      “ O’ Cobmak, J.—The defendants rely in their defence chiefly on the allegation that they were not guilty of any fraud or misrepresentation, as to the date on which payment of the mortgage became due, and that they did not in terms assert that it became due on the day mentioned in the contract, and they also aver that, on being informed that the mortgage in fact was payable in 1889, two years before the date set forth in the agreement, they used reasonable diligence in procuring a deed from the mortgagee extending the time of payment, and that they did actually procure such deed, and tendered it to the plaintiff on November 23d, eight days after the date specified in the agreement of sale for closing the contract.
      “ The evidence does not, in my opinion, sustain a charge of laches on the part of the plaintiff, or of any delay in acquainting himself as to the contents of the mortgage in question. He was justified in assuming for the time that the defendants, in executing their contract, did not err in the statement made therein as to the time of the maturity of a mortgage on their own property. On ascertaining the error, the attorney for the plaintiff lost no time in informing the attorney for the defendants of the condition of affairs.
      “ Neither am I satisfied that a charge of laches can well be sustained against the defendants for delay in securing the extension of time from the mortgagee, for payment of the mortgage, after they had received such information.
      “ The main question seems to be whether the plaintiff, having given notice to the defendants that he would require formal, exact, and final execution of the contract, and the production of the deed extending the time for payment of the mortgage, to the date set forth in the contract, and that he would accept of no substitute for that deed, and also that he would require the transaction to be closed on the day mentioned in the contract, and would not consent or submit to any further delay, was justified in law and equity in taking that position. If so, the plaintiff must succeed in this action. If, on the other hand, a court of equity, on the facts of this case, has power, and, in the exercise of its discretion, ought to relieve the defendants, then the question will be whether they have shown themselves to be deserving of equitable relief, and whether it would be in accordance with public policy to grant it.
      “ There are no authoritative decisions of the courts of this state, laying down a hard and fast rule of law for cases of this nature. Each case must, in great degree, be decided according to its own peculiar features, and on its own facts.
      “ The time for closing contracts for the sale of land, when clearly and distinctly expressed in the contract itself, although not expressly stated as being of the essence of the contract, cannot be treated as mere surplusage, without any force or intent or meaning. It can, in my opinion, be made essential to the contract by the distinct demand of either party that the express terms of the contract in that respect be carried out. The plaintiff had the right to demand that the contract should, in that and in all other respects, be carried out according to its terms, and on such demand being made, it becomes of the essence of the contract. If the defendants were in doubt before, or at the time when the contract was executed, as to the time when the mortgage fell due, it was their duty to make speedy inquiry on the subject, so as to correct their error if any, in time. In failing to do so, and leaving a question of such manifest importance in doubt, up to a few days before the time fixed for closing the transaction, I think the defendants failed in their duty, and in the vigilance which should be require of them even if it were only for their own protection.
      “ In the various transactions which take place in this city, asto the sale and transfer of real estate, cases of this nature frequently arise, and it is important that the law on these subjects should be, as far as possible, clear uniform, and capable of practicable application. To hold that no importance should be attached to the time specifically fixed in the contract of sale, for the closing of the transaction, by exchange of deeds, etc., would be, in my opinion, dangerous, and tending to the growth of habits of looseness and uncertainty. In the transaction of such business, mutual courtesy is often needed, and often freely given. But such courtesy may be withheld without violation of law, and the injurious consequences that may ensue do not constitute a cause of action at law, or sustain a claim for equitable relief. .
      “ Applying the rules of law and equity to the special facts in the case at bar, I hold that the defendants are chiefly responsible for the delay in closing the contract at the time specified therein. That the plaintiff had a right to demand a deed from the mortgagee, extending the time for the payment of the principal of the mortgage to the date mentioned in the contract. That the defendants were primarily responsible for the correctness of the date set forth in the contract. That, under all the circumstances, the plaintiff had the lawful right to require the closing of the sale at the time specified in the contract, and was under no legal obligation to extend the time.
      “ In the case at bar, the'plaintiff distinctly refused to agree to any further extension, and announced that he would rest on his strict rights'under the contract.
      “ That the defendants were unable to carry out their part of the contract on the day required by the contract, was their misfortune, and to some extent their fault. They ought to have had more accurate knowledge of the material condition of their own title, and they ought not to have made themselves responsible by contract, for the accuracy of a statement of fact, in the contract, which would naturally be an important element, inducing the plaintiff to the purchase.
      “• Judgment should be for the plaintiff and against the defendants, denying the equitable relief claimed by them.
      “ The plaintiff should have his costs in the action.”