author: Miller, P. J.:

text:
    JOSEPH T. BATES and another, Respondents, v. CHARLES A. MERRICK, Appellant.

      Undertaking on appeal— action by sureties on, against principal—allegations of the complaint—when sufficient.

    This action was brought to recover the amount paid by the plaintiffs on an undertaking which they were induced to sign by the fraudulent representations of the defendant. The complaint alleged a signing and delivery of an undertaking on an appeal from a judgment of the Supreme Court of the State of New York, stating the parties, the amount and other necessary particulars which show a judgment, and referred to the undertaking as annexed, which recited a judgment recovered at the General Term of the Supreme Court, and that the appellant intended to appeal to the Court of Appeals. Held, on- demurrer, that these statements showed a judgment in the Supreme Court of the State of New York, in an action which had originated in or been appealed to tha court.
    The complaint alleged that the undertaking was duly filed and accepted, and was used as a sufficient undertaking on said appeal, and stayed all proceedings upon the judgment appealed from, and that said judgment appealed from was duly affirmed in all things. Held, that these facts showed that the appeal was perfected, and everything done which the law required to make it valid and effectual
    The complaint alleged that said judgment, so appealed from, was, by an order of the Court of Appeals of the State of New York, duly affirmed, and that thereupon, upon a remittitur therefrom, a judgment of affirmance was duly entered in the Onondaga county clerk’s office. Held, that it did not appear that the judgment so entered was not the judgment of the Supreme Court, nor that it was not entered in the county where the judgment appealed from was entered. Even if it was entered in the wrong county, it was a mere irregularity, and not a ground of objection on demurrer.
    Whore an insufficient undertaking, given upon an appeal, has been accepted and received as proper and lawful, and the proceedings stayed by virtue of it, the principal is estopped from questioning its validity in an action brought against him by the sureties thereon.
    The undertaking ivas joint, and the complaint alleged that the amount was paid jointly. Held, that the plaintiffs were acting jointly in the execution of the undertaking; that they were jointly defrauded by the defendant, and were entitled to maintain a joint action.
    Appeal from an order of the Special Term, overruling a demurrer to the complaint in this action.
    The action was brought to recover for a fraud perpetrated by the defendant upon these plaintiffs by inducing them to become sureties to an undertaking given upon an appeal to the Court of Appeals. The facts are stated in the opinión.

      M. M. Waters, for the appellant.

      Bouton & Champlin, for the respondents.
   Miller, P. J.:

This case arises upon an appeal from an order of the Special Term, overruling a demurrer to the plaintiff’s complaint. Various objections are urged to the complaint, which it is essential to examine. It is said that the complaint does not state that any judgment was in fact recovered in any court of the State of Hew York. I think that the complaint contains averments from which such fact is a legitimate inference. It avers an intent to cheat, deceive and defraud the plaintiffs, by inducing them to sign and deliver an undertaking, on an appeal from a judgment of the Supreme Court of the State of Hew York, stating the parties, the amount and other necessary particulars which show a judgment, and refers to the undertaking as annexed. The undertaking recites a judgment recovered at the General Term of the Supreme Court, and that the appellant intends to appeal to the Court of Appeals. These statements mean, and I think show quite clearly, a judgment in the Supreme Court of the State of ¡New York, and are amply sufficient for that purpose. The recital of a judgment of the General Term, in the Supreme Court, also shows that it was an action which had originated in, or been appealed to, that court, as no judgment could be entered or obtained without an action being brought for that purpose. The objection that the complaint does not state that any appeal from the judgment was ever perfected to the Court of Appeals, or attempted, is also without foundation. The complaint, after alleging the making of the undertaking, avers that it was duly filed and accepted, and was used as a sufficient undertaking on said appeal, and stayed all proceedings upon the judgment appealed from, and that said judgment appealed from was duly affirmed in all things. These facts show quite clearly that the appeal was perfected, and everything done which the law required, to make it valid and effectual. The allegation that it was duly affirmed, I think, covers every essential element necessary to establish that the proceedings were conducted as required by law. As already shown, it sufficiently appears that the judgment is in a court of the State of ¡New York; nor is it apparent that a notice of the appeal and of the undertaking was not served. The presumption is the other way, as the appeal was decided, and. it may well be, if such was the fact, that these irregularities, if they existed, were waived. It cannot be said that the appeal was a nullity when the court affirmed the judgment, and it is sufficient to aver that such affirmance of the judgment was had by order of the court, which means a judgment of affirmance granted by the court. ¡Nor does it follow that there was no liability upon the undertaking, because it is alleged that the judgment below was affirmed by the order of the court. The fact showing the affirmance was not required to be stated, and it was sufficient, I think, to allege that the judgment was duly affirmed. The averment is not, as is supposed, that upon a remittitur from an order, a judgment was rendered, but that judgment was affirmed by an order; that is, that a judgment of affirmance was granted by the order of the Court of Appeals. It must be assumed, I think, that the remittitur contained a copy of the judgment, and all that was essential to authorize the entry of a judgment in the Supreme Court. There is not sufficient ground for claiming that the judgment, entered in the Onondaga county clerk’s office, is a nullity, and it does not appear that it was not the judgment of the Supreme Court, nor that it was not entered in the county where the judgment appealed from was entered. Even if it did appear that it was entered in the wrong county, it would be a mere irregularity, which is not a ground of objection on demurrer, but could only be taken advantage of, on a motion to set it aside for the irregularity alleged. As already stated, it cannot be said that the judgment was a nullity, or upon a bond which was void, for the judgment was in force, and not vacated or set aside. The complaint sufficiently sets forth all that was essential to make the plaintiffs liable. It is quite apparent that they were liable to pay, and it being averred that they did thus pay, makes out a case of liability of the defendants in the judgment, in connection with other averments made. It is urged that the basis of the action is not the procuring of the signatures to the undertaking, nor its delivery to the defendant, because it was a nullity in his hands. It cannot, I think, be claimed that it was a nullity, for, while it might be objected to and returned as insufficient, I am inclined to think that, having been accepted and received as a proper and lawful undertaking, and the proceedings stayed by virtue of the same, the defendant is estopped from questioning its validity in this action. It is not absolutely essential that an undertaking upon an appeal to the Court of Appeals, should be in strict conformity to the letter of the law. It is sufficient if it is substantially so. I think that the diversion of the undertaking from its original purpose, could not have been a good defense to an action brought to recover upon it, and therefore is not a valid ground of demurrer in this case. ¡Nor was it, in my opinion, essential to state, in so many words, that the defendant wrongfully used, or wrongfully interposed, the undertaking, or did the same without the plaintiffs’ consent. The averment that the defendant, with the intent to cheat and defraud the plaintiffs, induced them to sign the undertaking, and, by false representations, obtained. their signatures, in connection with the subsequent allegation that it was accepted and used hy the defendant as a g-ood and sufficient undertaking on said appeal, sufficiently shows that the use of it by the defendant was wrongful, without any special averment to that effect. It is said that there is no fact stated, showing that the plaintiffs, hy reason of the defendant’s fraud, have been compelled to pay, and have paid jointly, any sum of money. The complaint alleges a cause of action which is joint, and not several. The undertaking was a joint one, and the amount as stated was paid jointly. It is therefore apparent that this is not a case where it is clear that the action is not a joint cause of action, as in Mann v. Marsh and Dunderdale v. Grymes. On the contrary, it is manifest, I think, that the plaintiffs were acting jointly in the execution of the undertaking, and were defrauded jointly by reason of the wrongful acts of the defendant, and are therefore entitled to maintain this action. The decision of the Special Term was right, in overruling the demurrer, and the order must be affirmed, with ten dollars costs.

Present—Miller, P. J., Bockes and Boardman, JJ.

Order affirmed, with ten dollars costs.

      Forrest v. Havens, 38 N. Y., 471.

       35 Barbour, 68.

      16 Howard, 195.


source: Caselaw Access Project

license: Public Domain

text:
    MANUFACTURERS’ NATIONAL BANK OF TROY and others, Appellants, v. MARY E. COX, Administratrix, etc., Respondent.

      Partnership — duties of partners towai'deach other—when may not engage in other business.

    One partner cannot enter into a secret arrangement with a third person, by means of which he might be enabled to reap an advantage or profit out of the transactions of such person with the firm.
    While Oox, the defendant’s intestate, and plaintiffs assignors were engaged, as partners, in the stove business in Troy, Cox purchased, for the benefit of the firm, from one Brown, the right to use in the manufacture of stoves, an improvement patented by him, upon the payment of one dollar for each stove manufactured; and the firm were also authorized to sell the right to any stove manufacturers having their head-quarters at Troy. In pursuance of this agreement, the firm paid to Brown some $11,000. At the same time, Cox, without the knowledge of his copartners, agreed to use Ms influence to introduce and bring into general use the improvement, not only at Troy but elsewhere, for wMch services he was to receive one-half of the moneys paid to Brown. In pursuance of this last agreement, he received one-half of the money paid by the firm to Brown. After the dissolution of the firm, the surviving partners learned of this secret agreement, and this action was brought to compel an accounting for the moneys so received. Held, that Cox, by entering into this agreement with Brown, engaged in a business which necessarily conflicted with the interests which he had in common with his associates; that such business thereby became part of the business of the firm; and that he was liable to account to Ms copartners for their proportionate share of the profits he realized.
    Appeal from, a judgment in favor of the defendant, entered upon the report of a referee upon a disputed claim against the estate of David B. Cox, deceased, which was referred under the statute. For some years prior to March 4, 1871, the plaintiff’s assignors and the deceased were copartners, doing, business in the city of Troy, under the firm name of Cox, Church & Co. The facts are stated in the opinion.

      Irving Browne, for the appellants.

      R. A. Parmenter, for the respondent.
   Miller, P. J.:

The claim of the plaintiff is founded upon an alleged failure of the defendant’s intestate to pay over and account for certain moneys received by him, which, it is insisted, belonged to the copartnership of which the deceased was a member. The moneys were received by the intestate from one Brown, who had made an arrangement with the firm by which they were to have the exclusive use of an invention of Brown, which obviated certain difficulties in the manufacture of stoves. The firm, by this arrangement, had the use of the invention to themselves, in Troy and its vicinity, and were authorized to sell the right to its use to stove manufacturers, having their head-quarters in Troy, by paying Brown one dollar royalty upon each stove manufactured. The arrangement was made by the intestate on behalf of the firm; and at the same interview, at a later period of the conversation, and after the contract had been agreed upon, a further agreement was made between the intestate and Brown, hy which, in consideration that the intestate should use his influence for Brown, to introduce the invention to the stove trade generally, outside of the district over which the firm had control, he was to receive fifty per cent of the net proceeds for the use of said improvement and patent, including the royalties to he paid by the said firm. The copartnership afterward paid large sums of money under the agreement first entered into, one-half of which was paid over by Brown to the intestate. The firm had no knowledge of the last arrangement at the time it was made, and until after they had ceased to pay royalties, at the end of 1870, but Mr. Church, one of its members, had some suspicion of it, and he did not know of it on the 4th of March, 1871, when the copartnership affairs were settled finally without any notice being taken of the claim now made.

There was no evidence that the intestate used his influence for Brown, or rendered him any service whatever under the agreement made with him.

The question arises upon the facts presented in this case, whether a partner can enter into a secret arrangement with a third person, by means of which he might be enabled to reap an advantage or profit, arising out of the transactions of such persons with the firm.

It is contended by the plaintiff’s counsel, that the secret agreement between the intestate and Brown, was hostile to the interests of the copartnership, and that the intestate could not lawfully enter into an arrangement for his own private advantage, which would operate in any such manner. By the copartnership agreement the intestate had a right to enter into any business outside of the firm, which did not interfere with the business of the firm; and, as the evidence stands, it is not manifest that this arrangement, in any way interfered with, or affected the interests of, the copartnership. It does not appear that they lost any profit, or failed to realize all which they otherwise might have done. If it be true, as the evidence shows, that the agreement with the intestate for his own individual benefit, was made after the arrangement had been completed as to the amount to be paid for the use of the improvement invented by Brown, then the copartnership paid no more than they otherwise would have done. Nor were they in any way injured by the provision made for the introduction of the patent outside of the district over which the firm had control, as no sales were made except to the copartnership. Although it appeal's that no actual injury resulted to the firm, yet, I think the arrangement entered into between the intestate and Brown, if it had been carried into effect, may well have tended to deprive the partnership of profits which otherwise might have been realized. The success of the business depended upon the extent of territory over which it might be carried, and would not be confined to the immediate locality where the firm was, and the business conducted. Hence, the effect of introducing the invention, generally, outside of the Troy district, might be to restrict the sales of the copartnership stoves, and to confer advantages on other manufacturers of the same article. It might have a tendency to drive them out of the market to some extent, and thus operate injuriously to the business of the firm. If such was the fact, then it remains to be considered whether there was not a violation of the obligations due from one partner to his associates, which made the intestate liable for the profits to his copartners. The principles upon which the relationship of copartners is founded, are strict and exacting, demanding entire good faith toward each other, and the highest standard of morality, integrity and fair dealing. They occupy a position of trust and confidence, far above the ordinary standard of trade morality, in their dealings with each other. They are both trustees and agents, and have no right to deprive the partnership of the benefit of any portion of their capital, diligence, skill and industry, by engaging in any other kind of business. These principles are familiar and well settled. But above all, they are not allowed to engage in any other business, which gives them an interest adverse to that of the firm. Nor can one of them make a profit privately, by dealing with himself, or clandestinely carry on another trade or business, which may prove injurious to the interests of the copartnership,

It cannot be doubted, I think, that the intestate, by his secret arrangment with Brown, by which he was to reap an advantage, was engaged in a business which necessarily conflicted with the interests which .he held in common with his associates, and which, if the agreement had been fulfilled, might have seriously affected their profits; and although he did no act which produced any such results, as he had violated his obligation and duty, the business upon which he had thus entered became a part and parcel of the business of the firm, and that he was liable to account to his copartners for their proportionate share of the profits he realized. It is sufficient, I think, that he violated the principles which should have controlled his action, thus to render him liable, even although the proof fails to show any direct loss to the firm by means thereof. The settlement of the affairs of the partnership for a portion of the royalties due to Brown, does not, I think, preclude the right to maintain the plaintiff’s case, even although one of the partners entertained a suspicion, in regard to the agreement between Brown and the intestate.

The objection that the action should have been in equity, is not, I think, well taken, nor does it appear to have been made upon the trial. For the reasons stated, I am of the opinion that the referee erred. The judgment should be reversed and a new trial be granted, with costs to abide the event.

Present—Miller, P. J., Bockes and Boardman, JJ.

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

       Story on Part., § 177; Col. on Part., § 184; Parsons on Part., § 227.

       Glassington v. Thwaites, 1 S. & S., 133.

       Story on P., § 178 ; Parsons, 224, 227, 228; Burton v. Wookey, 6 Mad., 367 . Coll., 186 Bentley v. Craven, 18 Beavan, 75; Struthers v. Pearce, 51 N. Y., 361.


text:
    RILEY BUSH, Plaintiff, v. CHARLES H. KNOX, Defendant.

      Judgment — estoppel by— Who bound by.

    The defendant gave to the plaintiff a bill of sale of a gold watch and chain, five colts and a note. Subsequently defendant sold the colts to one Johnson, who, at the request of defendant, brought an action against the plaintiff herein to obtain possession of the colts, claiming that the bill of sale was given as collateral security to a note which had been paid, and recovered judgment therein. This action was brought to recover the watch and chain, plaintiff claiming under the said bill of sale. Held, that the judgment in the action brought by Johnson, operated as an estoppel, and barred a recovery by the plaintiff in this action.
    Motion for a new trial, on exceptions ordered to be heard at General Term in the first instance.
    The action was replevin, and brought to recover a gold watch and chain. The defendant plead general denial, and, in addition, that the question sought to be litigated in this action, had been once litigated and decided adversely to plaintiff, and that plaintiff' was estopped thereby. On the trial, June, 1872, plaintiff proved a bill of sale, executed by defendant, November 3, 1868, whereby the watch and chain in suit, and five colts, with a note, were sold by defendant to plaintiff.
    On plaintiff’s cross-examination, it appeared that in a former suit between one Henry Johnson and this plaintiff, the questions were, whether this identical bill of sale had been given as collateral security for a note, and whether this note had been paid by defendant.
    Defendant proved that on May 24, 1869, he sold the colts mentioned in the bill of sale, to Johnson (plaintiff in the former suit), and that Johnson brought the former action by his (Knox’s) direction, Knox agreeing to make him good if he did not succeed in that suit. Defendant also swore that the bill of sale was given by him as security for the payment of a note he had given Bush, and which was subsequently paid. Defendant then offered in evidence the judgment roll in case of Johnson v. Bush. From this judgment roll, it appears that one question litigated in that suit, was, whether this bill of sale was absolute, or given as security for a note; and the other question therein litigated, was (in case the jury found that this bill of sale was given as such security), whether the note had been paid, thus canceling the bill of sale.
    The jury in that suit found against the defendant (now plaintiff) Bush, on both of those questions. Bush appealed to the General Term, which affirmed the decision. Bush then appealed to the Court of Appeals, which has since affirmed the decision of the General Term. The court held that this judgment roll, in connection with the other evidence given, operated as an estoppel on plaintiff, and was a bar to plaintiff’s recovery, and thereupon granted defendant’s motion for a nonsuit, and the plaintiff excepted. The court decided that the exceptions taken by the plaintiff be first heard at General Term.

      G. W. Hotchkiss, for the plaintiff.

      Chapman & Martin, for the defendant.
   Miller, P. J.:

This action was brought to recover a gold watch and chain, which the plaintiff cMmed he owned, and that the defendant wrongfully detained. The plaintiff was nonsuited upon the trial, upon the ground that he was estopped by reason of a judgment previously rendered in favor of one Johnson against the plaintiff, in a certain action brought to recover the possession of certain colts, in which the same identical question was litigated as in the case at bar. The question to be determined is, whether the defendant here was in privity with Johnson, so as to be entitled to avail himself of the benefit of the judgment in the action brought by Johnson against the plaintiff. So far as parties are concerned, the right to the benefit of estoppel by judgment, includes all who are interested in the subject-matter, who have a right to appear, to make a defense, to control the proceedings, and to appeal from the judgment, although not a party to the record. The last authority lays down the rule, in addition to the principle above stated, that all persons who are represented by the parties and claim under them, or in privity with them, are equally concluded by the same proceedings. * * * Hence all privies, whether in estate, in blood or in law, are estopped from litigating that which is conclusive upon him with whom they are in privity.” It would appear that the rule extended beyond those who are interested and who have a right to appear, and includes such as claim under, or in privity with, those who are affected by the litigation. It cannot be doubted, that the defendant in this action claimed in privity with Johnson, who claimed title under the defendant here. If Knox’s title, was valid, then Johnson’s was equally so, and the two were really in privity with each other. Although a vendor and vendee are not mentioned as privies, I see no good and sufficient reason why the same principle is not applicable to these, as well as to other relations between parties which are particularly stated in the books. The rule as to privies, was applied to the case of master and servant, in Castle v. Noyes, and in a later case, in an action brought upon an agreement made by the defendant upon a settlement with the plaintiff’s assignor—the validity of which agreement had been previously contested by defendant in a proceeding with the assignor of the plaintiff — and it was held that the former proceeding was conclusive in all subsequent controversies as to the same matter. The defendant here, and Johnson, occupied the same relative position as the parties in the cases last cited, and the same rule is applicable. hTo cases are cited, of a recent date, which conflict with the principle laid down in those last referred to. Mesereau v. Pearsall, which is relied upon, is distinguishable from the case at bar, because, in the judgment in the second suit, there was an additional party plaintiff from that in the first and third cases; and it was said the decision may have been made upon the testimony of the new plaintiff in the second suit; and on that ground alone it would necessarily have been excluded if offered. It was also stated in the opinion, that the adjudication was not on the precise point in controversy in the case cited—-which, alone, would have been sufficient to exclude the record of the judgment. In Bissick v. McKenzie, an action was brought for a balance of indebtedness on an account. Previously, an action had been brought by one Pinner, against the defendant, upon two vendue notes, which was defended on the ground that the notes, with the balance of the book account, had been paid in full by a bond and mortgage; and a judgment was rendered in favor of the plaintiff there, who was the assignor of the plaintiff in the case cited. It was held that the judgment in the first action was a bar to the defendant’s plea of payment by the bond and mortgage, and conclusive. The court say: “ Pinner and the plaintiff were identified in interest, and being in privity with him, would be bound under the general rule, and estopped from litigating the same matter with the defendants in another action. The essence of an estoppel being mutuality, it follows that the defendants were bound toward the plaintiff by the j udgment against them in the action of Pinner. They have had their day in court.” The case at bar and the one cited are analogous; and the defendant here occupied very much the same position as Pinner’s assignee, who was the plaintiff in the case cited. Some stress is laid in the opinion upon the fact that the plaintiff was liable to Pinner as a warrantor, if the defendants succeeded in their defense. The same rule may be applicable here ; and I am inclined to think there was an implied warranty of title by the defendant. Nor is this all; for there are the additional facts, that the defendant directed Johnson to bring the suit; agreed to make him good if he failed; was present at the trial and a witness. Under these circumstances, it would appear to be a rational inference, that the defendant was in a condition where he had a right to control the proceedings of Johnson. As the ease stands, the judge was right in his decision; and the motion for a new trial must be denied, and judgment ordered for the defendant on the verdict, with costs.

Present—Miller, P. J., and Bockes, J.

Motion for new trial denied, and judgment ordered for the defendant, with costs.

       Castle v. Noyes, 14 N. Y., 329 ; 1 Greenleaf, 523.

      14 N. Y., 329.

      Demarest v. Darg, 32 N. Y., 281, 287.

         See, also, Bates v. Stanton, 1 Duer, 80, 87.

       19 N. Y., 108.

       4 Daly, 265.


author: Landon, J.:

text:
    In the Matter of Widening HUDSON AVENUE.

      Charter of city of Albany—Street openings — costs of—retmation of—right of tax-payer to be heard upon.

    Title 7, section 1, of the charter of the city of Albany, relating to the opening of streets, provides that the costs, charges and expenses, incident to the proceedings, “ shall be taxed and certified as to the amount, by any judge of a court of record.” Held, that these words prescribed no rule of practice, and that the judge might proceed ex parte, or upon such notice to the tax-payers or others as he might deem proper.
    In pursuance of this provision, the costs and expenses attending the opening of Hudson avenue, were taxed by a justice of the Supreme Court, upon an expm'te application by the corporation counsel, and an order made requiring all persons interested to show cause, at a time and place therein specified, why the report of the commissioners should not be confirmed. At such time, Mr. Olcott, a tax-payer of the city, and largely affected by the order, appeared, and an order was made, denying confirmation of the report, and vacating the taxation of costs.

      Upon appeal by the corporation counsel and city surveyor from the order directing a retaxation of their costs; held (1), that the court, at a Special Term, had power to vacate the ex parte taxation of costs upon, convincing evidence that the bill, in some of its items, was illegal, and in others grossly excessive, and upon being satisfied that the officer, upon whose motion the taxation was made, represented himself instead of the city and its tax-payers; (2), that the court had the right, in its discretion, to hear the tax-payer when he asked for a retaxation of the costs, to the end that his undenied allegations of fraud and imposition might be considered.
    Appeal from an order denying a motion to confirm the report of commissioners, appointed to award, and assess damages for the widening of Hudson avenue, in the city of Albany, and vacating an m parte taxation of the bill of costs in the matter.
    In.pursuance of section 1 of title 7 of the charter of the city of Albany, as amended by chapter 302, Laws of 1872, commissioners were appointed to award and assess damages for the widening of Hudson avenue,.in the city of Albany. Upon the completion of their report, and on the application of the corporation counsel, an order was made, taxing the costs and expenses of the commissioners, corporation counsel, city surveyor and others, and requiring all persons interested, to show cause, at a Special Term therein specified, why the report should not be confirmed. At the time designated in the notice, Mr. Thomas W. Olcott, a tax-payer of the city, who was largely affected by the proceedings, appeared and opposed the confirmation of the report, and moved for a retaxation of the costs, in both of which he was successful. An appeal was taken by the city from the order denying the motion to confirm the report, and by the corporation counsel and city surveyor, from the order directing the retaxation of costs. The appeal on the part of the city was subsequently abandoned.

      Henry Smith, for the appellants.

      Charles M. Jenkins and Rufus W. Peckham, Jr., for the respondent.
   Landon, J.:

The city of Albany does not prosecute the appeal, taken in its name, from the order of the Special Term denying confirmation of the inquisition, awards and assessments, and vacating the exporte taxation of the bill of costs in this matter. The late corporation counsel and city surveyor, who united in said appeal, now ask to have reversed so much of the order appealed from as vacated the taxation of costs. Thomas W. Olcott was heard by counsel before the Special Term which granted the order appealed from, and now asks its affirmance. He is a property holder and tax-payer of the city of Albany, and largely affected by the order. He charges that the bill of costs, which was taxed at $18,324.04, whereof the greater part was paid to the individual appellants, is, in some of its items, illegal, and in others grossly excessive. This the appellants do not deny, but claim that Mr. Olcott had no standing in court, and had no right to be heard at Special Term, and has no such right here. They also urge that the costs having been paid, the payment was made under a mistake of law, and they cannot be recovered back. They cite authorities which, they claim, show that in a like case, upon the application of a tax-payer, an injunction to restrain the payment of the money would not be granted, and that an action to recover the money back cannot be maintained. These authorities are not considered pertinent to the question presented upon this appeal. That question is, had the court at a Special Term, the power to vacate the ex ypa/rte taxation of costs, upon convincing evidence that the bill, in some of its items, was illegal, and in others grossly excessive, and upon being satisfied that the officer, upon whose motion the taxation was made, represented himself instead of his clients, namely: the city and its taxpayers ? The question stated, the answer is obvious. A court or judge may be misled in regard to matters of fact; but the imposition does not foreclose correction. The power of the court to set aside an order or judgment for fraud, mistake, irregularity, or illegality, is unquestioned. The court remark, in the case last cited, that a vested interest in a judgment, is subject to this liability. Clearly, these appellants have no more than a vested interest in the costs they have secured.

The statute under which this taxation was made, says the costs, charges and expenses incident to the proceedings, “ shall be taxed and certified as to the amount, by any judge of a court of record.”

These few words prescribe no rule of practice, and, undoubtedly, leave the judge at liberty to proceed ex parte, or upon such notice to the tax- payers, or others, as he may deem proper. In most cases of the taxation of costs in actions, there is first a taxation ex parte, and afterward a retaxation upon notice. After a taxation under this statute, whether there shall be a retaxation, and objections considered, is, even in the absence of any suggestion of imposition, clearly a matter within the discretion of the court or judge. As in the first instance the judge had the right, in his discretion, to hear the interested tax-payer upon this taxation, just so clearly has he or the court the right to hear him when he asks for a retaxation, to the end that his undenied allegations of fraud and imposition may be considered. This is the extent of the standing accorded to Mr. Olcott; and, under the circumstances of this case, wisely accorded to him. Whether the appellants can retain the money they have obtained, is a question that may be safely reserved until it is directly presented. The order appealed from should be affirmed, with ten dollars costs against the individual appellants.

Present — Bockes, Landos and Countryman, JJ.

Order affirmed, with ten dollars costs against individual appellants.

       Baldwin v. Mayor, 2 Keyes, 387; People v. Mayor, 11 Abb., 66; Sharp v. Mayor, 9 id., 426; Outwater v. Mayor, 18 How., 572, 576; Matter of Mayor, 49 N. Y., 150.

       Amended Charter, title 7, § 1.


author:
Bockes, J.:
      Countryman, J.:

text:
    THE PEOPLE ex rel. CHAUNCEY P. WILLIAMS and others v. THE BOARD OF ASSESSORS OF THE CITY OF ALBANY.

      Bank stock—assessment of—value—llow determined—Writ of certiora/ri—when quashed.

    Under chapter 761, Laws of 1866, providing for the assessment of the stock of State and national banks, the shares should be assessed at their true value, and not at their par value.
    All bank stock in the city of Albany, provided the same is not below par, is assessed at its par value. The relator is a stockholder in the National Albany Exchange Bank, the stock of which is above par. A share of stock in the said bank is worth only about forty-one per cent of the actual value of a share of stock in the Mechanics and Farmers’ Bank, which is situated in the same city and ward. The shares of each bank are assessed at them par value. The relator applied to have the assessment corrected. Held,, that, though the relator’s assessment would be increased by assessing his stock at its actual value, yet he was injured by the rule adopted by the assessors, as it relieved from taxation a large amount of property owned by the Mechanics and Farmers’ Bank, and thereby increased the rate to be imposed upon all the taxable property included in the assessment roll.
    The relator asked to have his assessment reduced to correspond with the assessment of the shares of the Mechanics and Farmers’ Bank, or that a reassessment on the shares of both banks, based upon their actual value, be ordered. Held, (1), that [as it did not appear that all other bank stock in the ward was worth as much as that of the Mechanics and Farmers’ Bank, the relator was not entitled to have his assessment reduced to the same proportionate valuation. (3.)- That if a reassessment were ordered, it should include all the bank stock worth more than par, in the ward if not in the city, and as none of the assessments against shareholders could then be increased, such reassessment was impossible.
    The writ of certiorari issues only in the sound discretion of the court, upon special cause shown, and when issued will be superseded if the remedy sought be inconsistent with the interests of public justice and convenience.
    Certiorari to review the assessment of the relators, as stockholders in the National Albany Exchange Bank.
    This case comes before the court upon the return of the defendants to a writ of certiorari, issued pursuant to an order of the Special Term, and upon a motion of the defendants to quash or supersede the writ.
    The following facts appear from the return and the exhibits thereto annexed. The relators are stockholders of the National Albany Exchange Bank, a banking association organized under the national banking act, and located in the sixth ward of the city of Albany. The official report of its officers, dated July 7, 1874, shows its capital to be $300,000; surplus $100,000 ; other undivided profits $56,275.14; total, $456,275.14, with no deduction for July dividend. There is located in the same ward several other banks, including the Mechanics and Farmers’ Bank, which is organized under the laws of this State. The official report of the officers of the latter bank, dated July 1, 1874, shows its capital to be $350,000; surplus $650,000; profits, less July dividend, $106,839.15; profits, less real estate account, $77,000; total, $1,183,839.15. The board adopted as the standard of valuation in the assessment of all bank stock in the city, the par value thereof, whenever they were satisfied that it was worth par or any greater sum, and did not make any inquiries or investigation as to the actual value of the stock, farther than to ascertain that such value was more than the par value. The shares of the banks in question were accordingly assessed at their par value, deducting the assessed value of their real estate. The relator, Williams, appeared before the board at the proper time after the assessments were made, and demanded that the assessment of the shares of the Exchange Bank be reduced to forty-one per cent of the shares of the Mechanics and Farmers’ Bank, which reduction the board refused to make. The assessment roll is still in the hands of the board, and the relators ask to have their assessments reduced as claimed before the assessors.

      Matthew Hale, for the relators.

      R. W. Peckham, for the defendants.
   Bockes, J.:

This case is before the court, on the return to a writ of certiorari, having for its object the correction of assessments, made by the board of assessors of the city of Albany, against the shareholders of stock of the National Exchange Bank of that city. The relators demand by way of relief, a reduction of the assessments against them on their shares of stock, either by the direct order of the court, or by a reversal of the proceedings of the board as to them, with directions which would secure that result. There is also a motion on the part of the defendants to quash the suit.

The case has given us great anxiety in its consideration, surrounded as it is with perplexing questions, affecting both public and private interests. It is, as we think, entirely plain that the basis of assessment against the owner of shares of stock of the banks, as certified to us by the board of assessors in answer to the writ in this case, is erroneous. The assessments have not been made against the shareholders “ on the value of their shares of stock,” as the law requires, but were made, as the fact is certified in the return, at par value, without regard to the true value, in excess of par. Such basis of assessment was in manifest disregard of the plain directions of the statute. This seemed so utterly indefensible, that, on our first consideration of the case, we con-eluded to reverse the proceedings of the board of assessors, and to direct a reassessment. But on further examination and reflection, we find that this disposition of the case would be attended with serious difficulties. Such revision of the roll, if ordered in this proceeding, could be but partial; nor would it at all correct the error we deem so palpable.

The only alteration which could be made on this proceeding, would be by way of reduction of the assessment of the shares held by the relatora, the shareholders in the Exchange Bank. This only they demand. They ask for a reduction of the assessed value of their shares of stock, which are already assessed too low; and, as has been already suggested, a reassessment of all the property on the roll, with a view to secure entire fairness and equality of taxation as regards all the tax-payers, is, at this late day impracticable. The complaint here is not that the relators are assessed too high, but that some other parties on the roll (the shareholders in the Mechanics and Farmers’ Bank) are assessed too low. Yet it is not claimed that the assessment against the latter can now be raised. To reduce the assessment against the relators, might produce equality as between them and the shareholders in the Mechanics and Farmers’ Bank; but it would also produce inequality, as between them and all others on the roll, who must be presumed to be représented fairly thereon. The rights of all the tax-payers on the roll should be considered, and no order or direction should be here given, which would work general inequality and injustice.

We are unwilling to give even apparent sanction to the action of the board of assessors, as certified to us in the return. The statute, under which such action was taken, was not duly observed. But to grant the relators the relief demanded by them, either by here reducing the assessments against them, or by directing a reduction by the board of assessors, would but give sanction to the error already perpetrated, and enhance its enormity. We are therefore led to the conclusion, contrary to our first impressions, that the true course to be adopted by us, is to quash the writ.

For a more careful and extended consideration of the case, recourse must be had to the accompanying opinion of Mr. Justice CorammiAN, wherein the subject is clearly and logically discussed in the light of former legislation, and the decisions bearing upon it.

Countryman, J.:

It is an undisputed fact appearing in the return, that the board of assessors, in the assessment of all bank stock in the city of Albany, adopted as their standard of valuation the par value of the shares whenever the actual or market value was equal to or exceeded the par value, and regardless of the actual value whenever it exceeded par. This was a palpable violation of the laws of this State, requiring and regulating the assessment of property for the purpose of taxation. The Revised Statutes require that “ all real and personal estate liable to taxation, shall be estimated and assessed by the assessors at its full cmd true vahee, as they would appraise the same in payment of a just debt due from a solvent debtor.” And to secure a strict performance of this duty, the assessors are also required by a subsequent enactment, for a willful violation of which they incur the penalties of perjury, to make oath that the “ assessment roll contains a true statement of * * * the taxable personal estate of each and every person * * * at thefull cmd t/rue value thereof, according to their best judgment and belief.” The rule had been uniform, for many years prior to the organization of national banking associations, under the acts of congress, : to assess the capital stock of all the banks against the corporations themselves, in the same manner and at the same valuation as other personal property against private individuals.

But after the enactment of the federal law, and the organization of national banks, it became necessary, to obviate the difficulties caused by the subsequent decisions of the Supreme Court of the United States, to make the assessment upon the stock of these associations against the individual shareholders, and to adopt a rule for the assessment of this species of property, which should be applicable alike to all the banks, whether organized under the laws of the State or of the United States. The act of 1866 was passed for this purpose, and rendered the shares of stock in the national banks equally “ liable to taxation ” with the shares in the State banks. The act provides that the shareholders in all of these corporations, State and national, “ shall be assessed and taxed on the value of their shares of stock,” which shall be included in the valuation of the personal property of such stockholder in the assessment of taxes * * * but not at a greater rate than is assessed upon other moneyed capital in the hands of individuals in this State.” The mode of ascertaining the value of the stock is not prescribed in the act, as this had been previously done in the Revised Statutes, accompanied with an express declaration that the same method “ shall be followed in all assesssments, except where the assessors shall be specially required by law to observe a different rule.” The purpose of the act was three-fold: 1. To make the stock in the national banks “ liable to taxation ” under the laws of the State. 2. To provide “ that the tax so imposed * * * shall not exceed the rate ” imposed upon the shares of the State banks, as required by the act of congress. 3. To prevent an assessment “ at a greater rate than is • assessed upon other moneyed capital in the hands of individual citizens,” in compliance also with the federal law. The adoption by the legislature of these additional limitations in the act of 1866, is therefore no indication of an intention to change the rule enjoined in the Revised Statutes for ascertaining the value of this kind of property, or of prescribing a different value, for any of the purposes of assessment and taxation. These provisions were necessary in compliance with the conditions imposed in the act of Congress, which only permitted the State authorities upon these terms, to levy a tax on the shares of stock in the national banks, The conclusion is inevitable, that it was the duty of the defendants to have assessed the shares of stock in all of the banks at their true value instead of their par value, and that all of the assessments are unauthorized and erroneous where the actual value of the stock is above par.

It is urged, however, that the relators cannot complain, because upon their own statements they have not been injured, as the shares of the National Albany Exchange Bank, in which they are stockholders, have only been assessed at their par value, whereas their real value, as claimed by the relators themselves, is fifty-two per 'cent more than par; so that their assessments would be increased, on a reassessment of their property pursuant to the statute. But this objection ignores another very important fact, to wit, that the shares of the relators are nevertheless worth only about forty-one per cent of the actual value of the shares of the Mechanics and Farmers’ Bank, which are also assessed only at their par value. It thus appears that as between the two banks, the shares of the former are assessed at the same valuation as the latter, whereas if the correct standard had been followed, the assessment of the former would have been fifty-nine per cent lower than the shares of the latter bank. It also appears from the reports of the officers of the Mechanics and Farmers’ Bank, annexed to the return, that the amount of surplus and undivided profits in the bank, which escapes taxation, under the method of valuation adopted by the board of assessors, is over $750,000. The result is apparent, that the amount of tax assessed against all the other taxable property included in the assessment roll must necesarily be increased. All of the tax-payers including the relators may therefore be injured by the erroneous assessment made against the shareholders in the Mechanics and Farmers’ Bank. In the language of Gbovbr, J., in the case of The People ex rel. Marsh v. Delaney, the grievance does not consist in a violation of law, in consequence of which the assessment of the relators’ property is larger than it should have been, but in a violation whereby the capital stock of the defendant’s corporation has been assessed at a sum less than it should have been, thereby increasing the ratio of taxation upon the property of the relators to some extent, and also upon the property of every tax-payer in the city.”

We have endeavored to find some practicable legal remedy to correct these serious irregularities. The relators ask to have their assessment reduced to forty-one per cent of the assessment upon a corresponding number of shares of the Mechanics and Farmers’ Bank, or if that be held inadmissible, a reassessment on the shares of both banks, based upon their actual value. Both of the remedies proposed are as bad as the disease, and the adoption of either would necessarily result in a violation of the statute. We cannot redress one wrong by the perpetration of another, under the forms of law, equally flagrant and indefensible. It does not follow because the shares of a particular bank severally representing a par value of $100, were actually worth in the market over $350; that all other bank stock in the ward except the relators’ was also of the same value; and that the relators are therefore entitled to have their assessments reduced to the same proportionate valuation. In all the cases cited on the argument, where the court, on a certiora/ri, made an order reducing the assessment of the relator to a definite amount, the facts fully appeared in the return, so that upon a comparison of his assessment with all the others on the roll, according to the true standard of valuation, the precise extent of the injury could be ascertained. But in this case the return does not contain these essential facts, and we have no means of determining, even from annexed exhibits, the real value of the stock of any of the banks except the relators’ and the one selected as the subject of their complaint. It is quite possible that the shares of stock thus selected and presented to the court, are of much higher value than those of any other bank in the city, and indeed that the shares of all the other banks are of far less value than those of the relators. However this may be, the relators should have procured a return, setting forth the real value of all the bank stock worth more than par in the city, or at least in the sixth ward, if they desired an order requiring the assessors to make a specific reduction of their assessment. The other alternative suggested by the relators, of directing a reassessment by the assessors upon the shares of both banks, on the basis of their actual value, is equally untenable. If any reassessment were ordered, it should include all the bank stock, ■ worth more than par, in the ward if not in the city, and this relief we would readily grant if it could be made effectual. But an insuperable difficulty is presented, from the fact that none of the assessments against shareholders in the banks, can now be increased, and a reassessment therefore upon the only feasible basis, according to the rate of valuation of the shares of the highest value appearing on the assessment roll, would require a readjustment of all the property on the roll, which at this late day is quite impracticable. Besides, it would involve the same violation of the statute under the sanction of the court, of which complaint is now made, as it would require a reassessment of all the taxable property at less than one-third of its real value. The writ of certiorari in cases of this character, does not issue ex debito justitice, but in the sound discretion of the court upon special cause shown, and when issued, will be superseded if the remedy sought be inconsistent with the interests of public justice and convenience. We are constrained, in view of all the difficulties suggested, and the public embarrassments which would ensue from an interference at this time with the assessments, to supersede the writ, and the motion to quash must therefore be granted without costs.

Present — Bockes, Landon and Countryman, JJ.

Writ quashed, without costs.

       Laws of 1866, chap. 761.

       1 R. S., 393,§ 17.

       Laws of 1851, chap. 176, § 8; 3 Statutes at Large, 350, § 8.

         12 U. S. Statutes at Large, 665; 13 id., 99.

       Laws of 1853, 1241, § 10; Laws of 1857, chap. 456, § 3.

       Bank Tax Case, 2 Wall., 200; Van Allen v. The Assessors, 3 id., 573.

       Laws of 1866, chap. 761, p. 1647.

      1 R. S., 393, § 18.

       13 U. S. Statutes at Large, 104, § 16; 105, § 31; 112, § 41; Van Allen v. The Assessors, 3 Wall., 573.

       49 N. Y., 655; opinion not reported.

       People v. Supervisors of Allegany, 15 Wend., 198; People ex rel. Marsh v. Delaney, 49 N. Y., 655.


text:
    JOHN ARNOT, Jr., Respondent, v. THE PITTSTON AND ELMIRA COAL COMPANY, Appellant.

      Contract—containing valid and invalid provisions—when valid provisions enforced—■ made by agent— when may be disaffirmed.

    Although a contract contains some provisions or promises which are void by statute, yet if it also embraces other agreements which would be valid if standing alone, they may be enforced.

      Jarvis v. Peck (10 Paige, 119) followed; Saratoga Co. Bank v. King (44 N. Y., 87);

      Woodworth v. Bennett (43 id., 273) distinguished.
    The intention of the parties as it appears in the agreement is to be considered upon the question whether a particular provision in the agreement is dependent or independent.
    Distinction drawn between an action brought to enforce the performance of an illegal contract, and one prosecuted for the disaffirmance of such contract.
    The authority of an agent to enter into an illegal contract, is not to be presumed; nor is such contract obligatory upon the principal, and the latter has a right to disaffirm it.
    Appeal from a judgment entered in favor of the plaintiff upon a referee’s report.
    The action was brought by the plaintiff, as assignee of the claim, to recover on a quantum meruit the value of certain coal sold and delivered by the Butler Colliery Company to the defendant, and money advanced during the month of August, 1869.
    The Butler Colliery Company and the defendant were corporations engaged in the business of mining and selling coal.
    On August 3d, 1869, an agreement was entered into by and between the two corporations, by which the defendant agreed to take at a certain price and on certain conditions, in the contract specified, coal from the said Butler Colliery Coal Company. The ninth clause of this contract was as follows: “ Ninth. The said party of the first part hereby agrees not to sell coal to any other party than the said party of the second part, to come north of the State line during the continuance of this agreement.”
    The referee found that the object and purpose of the defendant in making the said contract, was so to control the shipment and supply of coal for the Elmira market as to maintain an unnaturally high price of coal in that market, and to prevent competition in the sale of coal therein, of which fact the plaintiff’s assignor at the time had notice. That, pursuant to said agreement, the Butler Colliery Company delivered to defendant a quantity of coal, and made advances of money to and for the use and benefit of the defendant; the value of which coal and advances together amounted to $9,966.24, for which sum he ordered judgment for the plaintiff. The referee further found that the Butler Colliery Company had refused to continue to carry out said contract, and had given notice to defendant that it would not deliver any more coal thereunder. The defendant in its answer set up, among other things, the failure of the Butler Colliery Company to carry out the contract ; and that it was illegal, being in hinderance of trade, etc.

      H. Boardman Smith, for the appellant.
    The Butler Colliery Company were particeps erimi/nis. (3 Seld., 328, 347; 3 Den., 107, 340; Chitty on Cont., 422, 424 [Am. ed., 1840] ; 20 Wend., 390; 14 N. Y., 162, 170, 175.) The rule is the same whether the illegality be malum prohibitmm or malwm in se. (5 Seld., 520 ; 7 Wend., 276; 26 Barb., 595.) An act against public policy is malum in se. (14 N. Y., 201, 202; 10 Barb., 642 ; 6 Seld., 241; 10 Barb., 565.) If any part of the consideration is illegal the whole consideration is void. (1 Pars, on Cont., 380; 5 Hill, 249 ; 37 Barb., 343 ; 5 Cow., 253 ; 34 Barb., 533; 2 Kent Com., marg. p„ 468.) The statute prohibits this kind of contract. (2 Edmond’s St., 714, § 8, sub. 6; see, also, 26 N. Y., 537; 37 id., 591.) The failure of a part of an indivisible consideration is the same in effect as a total failure. (Chanter v. Leese, 5 Mees. & Welb., 698; Oakley v. Morton, 1 Kern., 25; 17 N. Y., 173 ; 4 Com., 360.)

      John Murdoch, for the respondent.
    If defendants have suffered from rescission of contract, they must recoup their damages. (19 Barb., 313, 416, 423; 39 N. Y., 233 ; 2 Pars. Cont., 193; 14 Wend., 257; 5 Barb., 440.) The court will disregard the bad, and sustain the agreement upon the good consideration. (1 Pars. Cont., 380, 381, note y ; 3 Comst., 37; Chitty on Cont., 694; 18 Penn., 50 ; 2 Pars. Cont., 253. The contract is divisible and may be enforced as to the legal provisions. (3 N. Y., 37; 40 Barb., 440 ; 5 id., 10, 161; 20 id., 440; 21 id., 361; 15 N. Y., 12; 46 Barb., 618.) The good consideration would sustain the agreement. (1 Hoffman Ch., 479 ; 10 Paige Ch., 119; 18 Penn., 50; 5 Duer, 76; Evans v. Harris, 19 Barb., 423.) The company had a right to disaffirm the illegal agreement of its agent. (Condit v. Baldwin, 21 N. Y., 219; Bell v. Day, 32 id., 165; Algur v. Gardner, 54 id., 360.) In the absence of proof, an agent will not be presumed to have authority to make illegal contracts. (3 Duer, 241; 2 N. Y., 479 ; 5 Den., 575.)
   Miller, P. J.:

I shall assume, for the purposes of this case, that the ninth paragraph of the contract between the Butler Colliery Company and the Pittston and Elmira Coal Company, which is as follows:

Ninth. The said party of the first part hereby agrees not to sell coal to any other party than the said party of the second part, to come north of the State line during the continuance of this agreement,” was illegal and void. Taking this view of the subject, the question arises, whether the contract is divisible, and embracing some provisions which are valid, standing alone, and there being an adequate, independent consideration, the defendant’s agreement can be supported, and the court can disregard the bad, and sustain the agreement upon the good consideration. I am inclined to the opinion that this can be done. It is laid down by Parsons, in his work on contracts:

“ If one gives a good and valid consideration, and thereupon promises to do two things, one legal the other illegal, he shall be held to do that which is legal, unless the two are so mingled and bound together that they cannot be separated; in which case the whole promise is void.” See also note t, where the same principle is substantially maintained. On page 381 of the same work, it is further stated, in a note: “ Although a contract contain some provisions or promises which are void by statute, yet if it also embrace other agreements which would be valid if standing alone, they may be enforced; ” and numerous English cases are cited to uphold this principle. Although there are, perhaps, some cases seemingly in conflict with these general rules stated, I am not satisfied that they are of a character which overthrows the principle referred to in the authorities cited. In support of the position contended for by the plaintiff’s counsel, is the case of Jarvis v. Peck, which I do not understand has ever been distinctly overruled; Saratoga Co. Bank v. King does not so hold, and is not, I think, in conflict with the rules laid down; for, in that case, the action was brought to enforce an illegal agreement, while here it is in disaffirmance of it. The same remark applies to Woodworth v. Bennett. The elementary principle is sustained in numerous cases, that where the contract is divisible, and the illegal part may be separated from the legal, the contract may be enforced.

In Alcock v. Giberton, the rule was laid down by the assistant Vice-Chancellor Hoffman, “ that if a sufficient valuable consideration remained, after rejecting the illegal one, to support the contract, the court would enforce it.” It is very evident that such consideration does not exist in the case at bar, to support the plaintiff’s claim; and the action may therefore be maintained within this rule. The intention of the parties is also to be considered, as appears from the instrument itself, upon the question whether a particular .provision in the agreement is dependent or independent; and when a defendant has received a substantial part of the consideration of the covenant, which is being enforced against him, and the covenants and consideration, in their nature, cannot be apportioned, they are to be considered as independent. As to the question of intention, it will be seen that the vendors only obtained the market-price for their coal, and the vendees only paid such price. It is hardly to be presumed that either of the parties, under such circumstances, were influenced by any other provision except the price. We must construe the agreement as it reads, independent of the opinion of any of the parties or their agents, which was given in evidence on the trial, and which perhaps may have been an after thought, and therefore should have no weight. The construction stated, it seems to me, is supported by the instrument itself, and it is not the province of courts to strain a point so as to include an illegal consideration, and, by conjecture and speculation, defeat the actual designs of a party.

These views are sufficient to dispose of the case, but, independent of them, I am of the opinion that there is no principle of law, which interferes with the right of the plaintiff to maintain an. action for the value of the coal sold and delivered to the defendant. It appears, and the referee has found, that soon after the agreement was made, it was rescinded and disaffirmed by the plaintiff’s assignor. The action was not brought to enforce the agreement, but in disaffirmance of it, and the contract was executory, at least not fully executed. Although both parties had participated in it, they were not in “pari delicto,” where neither can recover from the other. The contract being executory, the plaintiff had a right to rescind and bring his action to recover the value of the coal delivered. There is a wide distinction between an action, brought for the affirmance of an illegal contract and to enforce its performance, and an action which is prosecuted in disaffirmance of a contract, on the ground that it is void,' and that the defendant is not entitled to the benefit to be derived from an unlawful act. There is no finding of the referee, that the plaintiff was in “pari delicto and, inasmuch as the plaintiff’s assignor sought to revoke and recede from the contract, I think they cannot be considered as liable to the charge of being equally in fault with the defendant. It may also be observed, that the contract in question was made by an agent of the plaintiff’s assignor and by the president of the defendant, and if they were both in “pari delicto,” the Butler Colliery Company, whom the agent represented, when it came to its knowledge, had a right to rescind and disaffirm it, and actually did so disaffirm the contract. As it did not ratify it, a right of action accrued to the Butler Colliery Company, which the plaintiff, as their assignor, is entitled to maintain. The authority of an agent to enter into a contract which is illegal, is not to be presumed ordinarily, nor is it obligatory upon the principal, and the latter has a right to disapprove of and disaffirm it. There is evi" deuce showing that the principal, the Butler Colliery Company, was not acquainted with the terms of the contract when made, and upon ascertaining what it was, repudiated and disaffirmed it. It could do no more, andrwas entitled by that act, to recover for the value of the coal delivered. These views dispose of all the questions which it is material to discuss, and dispose of the case. The judgment was right, and must be affirmed, with costs.

Present — Miller, P. J., Bockes and Boardman, JJ.

Judgment affirmed, with'costs.

       Vol. 1, p. 380.

       Leavitt v. Palmer, 3 Coms., 19, and the authorities cited.

       10 Paige, 119.

       44 N. Y., 87.

       43 N. Y., 273.

       Leavitt v. Palmer, 3 N. Y., 37; Leavitt v. Blatchford, 5 Barb., 10; Grant v. Johnson, id., 161; Pepper v. Haight, 20 id., 440; Rose v. Truax, 21 id., 361; Sanderson v. Goodrich, 46 id., 618; 15 N. Y., 12.

      5 Duer, 76.

       Evans v. Harris, 19 Barb., 423.

       Morgan v. Groff, 4 Barb., 524, 527; Schermerhorn v. Talman, 14 N. Y., 123; Curtis v. Leavitt, 15 id., 12.

       Condit v. Baldwin, 21 N. Y., 219; Bell v. Day, 32 id., 165; 54 id., 360; Clark v. Metropolitan Bank, 3 Duer, 241.


text:
    RICHARD R. RAY, Appellant, v. JOHN C. SMITH, Respondent.

      Inmaterial evidence—when new trial granted, for admission of.

    This action was brought to recover the value of one-half of a quantity of hay, which the plaintiff had purchased at an auction sale, and delivered to the defendant in pursuance of a prior agreement. The plaintiff gave his note for the whole of the hay; and upon the trial proof was given, under objection, to show that the plaintiff was sued upon this note, and was subsequently compelled to pay it, and that defendant had notice of the suit. Held, that the evidence was immaterial, and its admission was error; and that, as it was by no means clear that the testimony did not have an effect upon the jury, the judgment must be reversed, and a new trial ordered.
    Appeal from a judgment of the County Court, reversing a justice’s judgment.

      Benj. Reynolds, for the appellant.

      T. F. Bush, for the respondent.
   Opinion by Miller, P. J.

Present — Miller, P. J., Bockes and Boardman, JJ.

Judgment affirmed, with costs.


text:
    ABNER C. SKINNER, Respondent, v. WALLACE W. WHEELER, Appellant.

      Trespasser — liability of.

    This action was brought to recover damages for certain timber and bark, cut and removed by defendant from land of the plaintiff. After the timber and bark had been cut and piled, a portion of it was removed by the defendant, and the remainder was accidentally destroyed by fire. The court charged that the plaintiff was entitled to recover the value of the timber and bark that had been cut down, except the portion destroyed by fire. Held, that the charge was correct. A trespasser from carelessness, and not from malice, is a wrong doer, and he is liable for the value of trees cut and destroyed by him.

      Qumre whether the defendant was not also liable for timber and bark which was burned.
    Appeal from an order denying a motion for a new trial.

      T. F. Bush, for the appellant.

      W. J. Groo, for the respondent.

       Whitbeck v. N. Y. C. R. R. Co., 36 Barb., 644; Sedg. on Dam., 630..

   Opinion by Boardman, J.

Present—Miller, P. J., Boardman and Bockes, JJ.

Order affirmed, with costs.


text:
    NATHAN RIGHTMIRE, Respondent, v. ANSON M. KIMBALL, Appellant.

      Appeal from judgment in Justice's Gou/rt—fees of justice—payment of by third

    A judgment was recovered against one James L. Bightmire, before the defendant as a justice of the peace, for $11.40 damages and $5.ái costs. Plaintiff in this action, on behalf James L. Bightmire, served upon the defendant’s wife a notice of appeal, and left with her seven dollars, supposed to be enough to pay the costs and the justice’s return fee, to be applied to those purposes. As it was insufficient, the defendant, upon the expiration of the time to appeal, applied the money to the payment of the judgment.
    This action was brought to recover back the money so paid. Held, that the money, when paid to the justice, became the property of James L. Rightmire, and was no longer the property of the plaintiff, and that he could not maintain this action.
    Appeal from a judgment of the County Court, reversing a judgment in favor of the defendant recovered in Justice’s Court.

      A. McDowell, for the appellant.

      Chas. D. Nixon, for the respondent.
   Opinion by Boardman, J.

Present — Miller, P. J., Boardman and Bockes, JJ.

Judgment of the County Court, reversed, and that of the justice affirmed, with costs.


text:
    PHEBE A. H. DARBEE, Respondent, v. ALEXANDER ELWOOD and others, Appellants.

      Newly discovered evidence—who trial—when granted on account of.

    In this case a motion for a new trial, on the ground of newly discovered evidence, was denied, for the reason that the evidence, so discovered, did not fulfill the ' requirements of the rule applicable in such cases, viz.: that it should be so decisive in character, as that, to a reasonable certainty, it would be productive on another trial of an opposite result.

    Appeal from an order denying a motion for a new trial on the ground of newly discovered evidence.

      Wm. Youmans, Jr., for the appellants.

      Wm. Gleason, for the respondent.

       Hilliard on New Trials, 491 (2d ed.); Powell v. Jones, 42 Barb., 24; U. S. v. Cornell, 2 Mason, 91; Bronson v. Hickman, 10 Ind., 3; Simpson v. Wilson, 6 id., 474; Hull v. Kirkpatrick, 4 id., 638; Burr v. Palmer, 23 Vt., 244; Snowman v. Wardwell, 32 Me., 275.

   Opinion per Curiam.

Present—Miller, P. J., Bockes and Boardman, JJ.

Order affirmed, with costs.


text:
    THE TRUSTEES OF THE VILLAGE OF HAVANA, Appellants, v. THE BOARD OF SUPERVISORS OF SCHUYLER COUNTY, Respondent.
    Appeal from a judgment in favor of the defendant, entered upon the trial of this action by the court without a jury.
    The action was brought to have cnapter 768, Laws of 1867, authorizing the county seat, buildings and courts of Schuyler county to be changed from the village of Havana to the village of Watkins, declared unconstitutional, and to restrain the defendant from disposing of the site or building in Havana. The General Term affirmed the judgment, holding, first, that the plaintiff's, as trustees, had no such right as entitled them to maintain the action; and, second, that no contract was made by the legislature in any act which had been passed, even if it had the power to make such contract, which conferred any vested right, or deprived that body of the power to provide for the holding of public courts, and changing the locality of the court house in the county of Schuyler.

      Erastus P. Hart and S. C. Keeler, for the appellants.

      H. Boardman Smith and S. L. Rood, for the respondent.
   Opinion per Curiam.

Present — Miller, P. J., Bockes and Boardman, JJ.

Judgment affirmed, with costs.


text:
    JESSE FIERO, Administrator, etc., Respondent, v. ELIZA JANE FIERO, Appellant.
    Appeal from a judgment in favor of the plaintiff", entered upon the trial of this action before the court, without a jury.
    The only question in the case, was, whether or not a savings bank-book had been given to the defendant by the plaintiff’s intestate, as a donatio mortís causa. The justice, before whom the case was tried, held that there was not sufficient evidence to establish the gift, and the General Term concurred in his opinion, and affirmed the judgment.

      Wm. P. Fiero, for the appellant.

      J. N. Fiero, for the respondent.
   Opinion by Miller, P. J.

Present — Miller, P. J., Bockes and Boardman, JJ.

Judgment affirmed, with costs.


text:
    THE PEOPLE ex rel. CHAUNCEY KILMER and others v. Patrick McDonald, Andrew J. CHERITREE and others.
    The writ of certiorari granted in this case was quashed at the September term (see 2 Hun, JO) for the mistaken reason that the writ was not issued by the court at Special Term, but by a judge at chambers.
    A motion was made at this term for a reargument, upon the ground that the writ was, in fact, granted at Special Term. The court was of opinion that a reargument should be had.

      A. Pond, for the relators.

      P. H. Cowen, for the respondents.
   Opinion by Landon, J.

Countryman, J., concurred.

Reargument ordered, costs to abide the event.


text:
    HIRAM COOK, Respondent, v. DEMON S. DECKER, Appellant.
    Appeal from an order of the County Court.
    The principal point involved in this appeal was, whether or not the fourth count in the answer constituted a counter-claim. The General Term held that it did not, hut was merely a plea of accord and payment joro tanto of the claim set forth in the complaint.
   Opinion per Curiam.

Present — Bockes, Landon and Countryman, JJ.

Order reversed and motion denied, with ten dollars costs.


text:
    GEORGE CHAFFEE, Respondent, v. MEDAD T. MORSS, Appellant.
    Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury.
    The General Term held that the evidence given upon the trial was conflicting, and that the verdict of the jury could not be disturbed.

      J. L. Stewart, for the appellant.

      T. F. Bush, for the respondent.
   Opinion by Bockes, J.

Present — Miller, P. J., Bockes and Boardman, JJ.

Judgment affirmed.


author: Tappen, J.:

text:
    December, 1874.
    J. FRANK PHILLIPS, Appellant, v. HENRY W. WHEELER and others, Respondents.

      Judgment against partner ship—opening of, as to one partner—effect of—Gods, § 401, sub. 4—■ Smite 97.
    Where a judgment, recovered by default against several defendants as partners, is opened by one only, and set aside and the complaint dismissed as to him, money collected under an execution issued on such judgment by sale of partnership property, should not be paid to the plaintiff in such action; and a subsequent attaching creditor of the partnership is entitled to receive it.
    The Code, section 401, subdivision 4, providing that motions upon notice must be made within the district within which the action is triable, etc., does not apply to a case where one motion is necessarily made and entitled in several actions pending in different counties and judicial districts. The practice in such cases must be determined under Rule 97.
    Appeal from an order directing the payment of certain money, held hy the sheriff of Dutchess county, to the owners of a judgment and execution in favor of Charles Cornwell.
    Fourteen different cases were decided on this appeal.
    The facts are stated in the opinion.

      E. J. Sherman, for the appellant.

      Anthony & Losey, for the respondents.
   Tappen, J.:

The sheriff of Dutchess made a motion at the Dutchess Special Term, upon notice to all the judgment or attachment creditors in these actions, for directions by the court, as to the disposition of moneys in his hands, arising from the sale of the partnership property of the judgment debtors.

The plaintiff Phillips obtained a judgment by default against all three defendants as partners, and filed transcript, and issued execution to the sheriff of Dutchess; pending which, the defendant Wheeler, by order of the court, had the judgment set aside as to him, and was allowed to come in and defend on the merits. Judgment was subsequently rendered at the trial in his favor, the referee finding “ that the defendants were partners; that the sums of money alleged by the plaintiff to have been loaned to the defendants, were not so loaned; and that the defendants were not indebted to the plaintiffs.” The defendant Wheeler, being the only party defending, took judgment against the plaintiff, dismissing the complaint, and for costs; and the judgment stands unreversed. The plaintiff asks to have the money in the sheriff’s hands applied to the execution which he issued on the judgment before it was opened by the defendant Wheeler, upon the ground that it was not opened as to the other defendants, although it was upon a claim against all the defendants as partners. The plaintiff’s priority is contested by Charles Cornwell, a creditor who is next in order of time, by reason of an attachment, which the sheriff of Dutchess received and levied on the partnership property. The sum of money in the sheriff’s hands is about $1,700, and either of these claims will more than exhaust the fund; and the claims of the twelve subsequent execution creditors do not need to be considered at present. The plaintiff’s judgment stands impeached by the decision against him on a trial of the action on its merits. The fact that the other two defendants did not seek to defend, and that, on a trial demanded by the remaining partner (the defendant Wheeler), the plaintiff was defeated on the merits, shows collusion, and goes to the right to demand the money now in dispute. The judgment obtained by the attaching creditor Cornwell, is next in order, and is now entitled to be first paid.

The plaintiff' Phillips objects, that the sheriff could not make the motion in Dutchess, for the reason that the plaintiff ’s judgment was recovered in Hew York, and the Cornwell judgment in Greene.

The Code provides, that “ motions upon notice must be made within the district in which the action is triable, or in a county adjoining that in which it is triable * * * and no motion upon notice can be made in the first judicial district in an action triable elsewhere.” A literal construction of this language, would leave the sheriff without any place to make the motion. It is conceded on the part of the sheriff, that neither of these actions is in the second judicial district, nor in a county adjoining the county of Dutchess. But the sheriff could not be heard, if he did not bring all the claimants to the fund before the court. The plaintiff Corn-well, whose action was triable in Greene, could object to any motion in the first district; and the plaintiff Phillips, whose action was triable in Hew York, could object as well to a motion in Greene as he did to a motion in Dutchess, if the construction claimed by the plaintiff Phillips for this section, is held to govern this proceeding. Such a rule would leave the public officer without remedy in cases where the conflicting parties, who claim the fund in hand, have their judgments in several counties, not being in the same judicial district, and not being adjoining counties; in such cases this provision of the Code cannot be held applicable. The proceeding is one not embraced in that section, but Rule 97, applying to cases not regulated by statute, must apply. In other words, where one motion is necessarily made and entitled in several actions, pending in different counties and judicial districts, the practice under section 401 of the Code does not apply, from the very circumstances of the case.

On the question of jurisdiction, and on the merits, the order of the Special Term should be affirmed, with costs.

Present — Tappen and Talcott, JJ.

Order affirmed, with costs.

       Section 401, subdivision 4.


text:
    WILLIAM ARTHUR, Appellant, v. ELIZABETH H. GRISWOLD and others, Executrix and Executors, etc., Impleaded, etc., Respondents.

      Personal representatives — effect of their improper substitution in action—Causes of action—severance as to parties.

    After a judgment in favor of plaintiff in an action which survives as against the representatives of a deceased defendant, though such representatives could not be properly joined as co-defendants with the other parties defendant, the proper practice is to move for a severance of the action.
    In such case if the representatives come voluntarily into court and ask to be made parties defendant, and obtain judgment in their favor directing a new trial, the court will not, on their application, vacate the order of substitution which they obtained.
    An appeal from an order made by Mr. Justice Barnard at Special Term, setting aside and vacating an order made by Mr. Justice Gilbert, upon the application of the respondents, dated the 19th day of December, 1872, in and by which last mentioned order the cause was revived and continued in the names of the said Elizabeth H. Griswold, as executrix, and Chester Griswold and John Wool Griswold, as executors of the last will and testament of John A. Griswold, deceased, who, in his lifetime, was one of the original defendants therein, and, so continuing, departed this life after the rendition of a verdict against him and his co-defendants, and pending an appeal to the General Term of this court from the judgment entered thereon, and from an order denying a motion for a new trial made by the said John A. Griswold; in his lifetime, jointly with his said co-defendants, immediately, ensuing the rendition of such verdict.

      C. A. Hand, for the appellant.
    Having voluntarily placed themselves in this position, the respondents should not be heard to complain or allowed to urge that the order or its effects are improper, illegal, or unnecessary. (Greenfield v. Mass. Mut. Life Ins. Co., 47 N. Y., 430, 435.) The order which is vacated by the order appealed from, even upon the theory of the respondents, was properly granted, and no reason for vacating it exists or is alleged. If no cause of action survived the death of their testator, they should move to dismiss the complaint. They have mistaken the remedy. (Fisher v. Hepburn, 48 N. Y., 41.) These respondents are proper and necessary parties. This is a cause of action sounding in tort, and the liability is joint and several. (Merchants’ Bank v. Bliss, 35 N. Y., 412; Chaffee & Co. v. United States, 18 Wall., 516; Creed v. Hartmann, 29 N. Y., 591; Boynton v. Hatch, 47 id., 225; Brom. on Parties, 248 ; 56 Law Library, 181.) Even at common law, case would lie for a penalty, and in debt brought, not guilty could be pleaded. (Handyman v. Whitaker, 2 East, 573, note) The cause of action survived and continued. (2 R. S., 448, § 1; Haight v. Hayt, 19 N. Y., 464; Union Bank v. Mott, 27 id., 633; see Yertore v. Wiswall, 16 How., 8 ; Doedt v. Wiswall, 15 id., 128; Code, § 121; Livermore v. Bainbridge, 49 N. Y., 125.)

      Wm. C. Holbrook, for executrix and executors, respondents.
    A defendant is entitled to revive in all cases after a decree, when he can have a benefit from the further proceeding in the suit. (Anderson v. White, 10 Paige Ch., 579; Anderson v. Anderson, 20 Wend., 585 ; Miller v. Gunn, 7 How. Pr., 159; Beach v. Gregory, 2 Abb. Pr., 203; Hastings v. McKinley, 8 How. Pr., 175.) The practice, where the Code makes no provision in regard to the course to be pursued, is regulated by the former practice. (Schuchardt v. Remiers, 28 How. Pr., 514; Livermore v. Bainbridge, 49 N. Y., 125.) The reversal of a judgment operates to nullify all that has been done, and in other respects the parties are generally left in the same situation, as to their rights and remedies touching the matter in controversy, as if no judgment had ever existed. (Cowen & Hill’s Notes to Phillips on Evidence, part 2, page 9; Woodcock v. Bennet, 1 Cow., 735; Close v. Stuart, 4 Wend., 98; Wood v. Jackson, 8 id., 36 ; Hunt v. Hoboken L. & I. Co., 1 Hilt., 161.) So in actions ex delicto the action at common law would, at most, only survive against the surviving defendants. (Chitty on Pleadings, pp. 67, 68; Gardner v. Walker, 22 How. Pr., 405; Voorhis v. Childs’ Executor, 17 N. Y., 354; Union Bank v. Mott, 27 id., 633.) A waiver is not presumed or allowed. (Avery v. Slack, 17 Wend., 87; Bennett v. Ingersoll, 24 id., 114; Broadhead

      v. McConnell, 3 Barb., 189, 190; In re James De Vaucene, 31 How. Pr., 336, note.) The order of revivor did not operate as an estoppel. (Wood v. Phillips 11 Abb. [N. S.], 3; Wood v. Jackson, 8 Wend., 36.) The plaintiff has not been misled by the order, nor has he been thereby deprived of any of the rights which the law gives him. (Jewett v. Miller, 10 N. Y., 406; Clute v. Jones, 28 id., 284.)
   Tappen, J.:

After a trial and judgment in favor of the plaintiff, the defendant, John A. Griswold, died pending appeal, and his executors obtained an order substituting them as defendants. The appeal was further prosecuted by them, and judgment had in their favor directing a new trial. Thereafter, the executors, on motion, obtained an order at Special Term, vacating the order which substituted them as defendants in the action; and from this order the plaintiff appeals.

The action did not abate as to Griswold, and, sounding in tort, it survives against his representatives. Inasmuch as the surviving defendants, who are principals, may not be joined in an action of this nature with the representatives of the deceased Griswold, the proper practice seems to be to move for a severance of the action, At all events these representatives having voluntarily come into the action, and having obtained judgment in their favor directing a new trial, the court will not now, on their application, vacate the order of substitution which they obtained. The order of Special Term, vacating the order of substitution, should be reversed, with ten dollars costs.

Present — Tappen and Talcott, JJ.

Order reversed with ten dollars costs.

      2R. S., 448; Haight v. Hayt, 19 N. Y., 464.

       The Union Bank v. Mott, 27 N. Y., 633.


text:
    MARGARET CARROLL, Respondent, v. ELIZABETH CARROLL and others, Appellants.

      Death—evidence of— record of proof of will.

    The record oí the proofs and proceedings had in the Surrogate’s Court on the proof of the will of an alleged deceased person, is sufficient evidence of his decease as to parties who were all before the surrogate when such proceedings were had.
    Appeal from a judgment entered in this action, and from an order refusing a new trial herein, and from an order directing a sale and reference. The facts are stated in the opinion.

      Philip S. Crooke, for the appellant.
    Carroll being alive October 22, 1872, the presumption is that he was alive in May, 1873. (O'Gara v. Eisenlohr, 38 N. Y., 296.) Hearsay evidence of death only allowed when no living witness can testify to the fact. (Fosgate v. Herkimer, 12 Barb., 352.) The probate proceedings were not evidence of the death of Carroll. (2 Rev. Stat., 74, § 26; Farley v. McConnell, 52 N. Y., 630; Belden v. Meeker, 47 id., 307; 2 Phillips Ev., 93; 2 Greenleaf on Ev., § 278 a.) Letters of administration not sufficient to prove death. (Doe ex Ash v. Calvert, 2 Campbell, 389; Doe ex Hall v. Penfold, 8 C. & P., 536.)

      Morris & Pearsall, for the respondent.
    The' prohibition of section 399 of the Code does not prevent a party from testifying, in an action in which the legal representatives of a deceased party are adverse parties, to a conversation between the deceased and a third person, which was' overheard by the witness. (Hildebrant v. Crawford, 6 Lansing, 502; Lobdell v. Lobdell, 36 N. Y., 327; Simmons v. Sisson, 26 id., 277; Card v. Card, 39 id., 318.) “ The probate of will or the letters of administration are sufficient evidence for the plaintiff of the death of the testator or intestate.” (2 Greenl. Ev., 325, § 339; French v. French, 1 Dick., 268 ; Succession of Hamblin, 3 Rob. [Louis. R.], 130; Newman v. Jenkins, 10 Pick., 515; Belden v. Meeker, 2 Lansing, 470; Russell v. Schuyler, 22 Wend., 280; Belden v. Meeker, 47 N. Y., 307.)
   Tappen, J.:

The plaintiff brought this action for an admeasurement of dower, which she claimed as widow of John Carroll. The only-point discussed on the appeal, is, the sufficiency of proof of the death of John Carroll. On previous-proceedings before the surrogate of Kings, the will of John Carroll had been admitted to probate. The plaintiff, at the trial of this action, offered the proofs and proceedings in the Surrogate’s Court to establish Carroll’s death. The parties to this action were all before the surrogate in that matter. Held, that the death of Carroll was thereby presumptively established. The same rule is laid down in Munro v. Merchant although the exception in that case is, that the will and letters were receivable as ancient records, establishing death. All the parties to this action have acted throughout on the presumption of John Carroll’s death; and the defendants in possession hold as his devisees. In their interest the will was proven before the surrogate; and no reason exists why the presumption of death, thus raised in their behalf, should not be held conclusive, in the absence of any counter-proof. The defendants are all in possession as devisees under John Carroll’s will. The adult defendants have answered, admitting his death; the infant defendants have put in the usual answer, by guardian ad litem. If the court should hold John Carroll living, the devisees have no estate; but, John Carroll dead, they become seized under his"will.

The proof of death is quite sufficient to uphold the judgment, which should be affirmed with costs.

Present — Tappen and Talcott, JJ.

Judgment and order, denying new trial, affirmed with costs.

      Greenleaf on Evidence, vol. 3, p, 835; Belden v. Meeker, 3 Lans., 470; affirmed id 47 N. Y., 307. '

       26 Barb., 384,


author: Donohue, J.:

text:
    CONSTANCE B. PRICE, Respondent, v. WALTER W. PRICE, Appellant.

      Complaint — when contains hut one Cause of action.

    A complaint, containing allegations showing a series of fraudulent acts, necessary either to the statement of the cause of action or in aggravation of damages, by whicn the plaintiff has been induced to marry the defendant, contains but one cause of action.
    Appeal from an order made at the Kings County Special Term, denying the defendant’s motion to require the alleged several causes of action in the complaint to be separately stated and numbered, and also, to strike out parts of the complaint. The complaint alleged:
    1. That defendant married Susannah Butler, April 23d, 1839.
    2. His separation from her May 31st, 1843, and emigration to thé United States.
    3. His marriage with Caroline Barton at New York, October 21, 1843, and their living together.
    4. A suit by him (October, 1863) to annul this second marriage, on tbe ground that the first wife was alive.
    5. A sentence of nullity (March, 1864), on that ground, adjudging the existence of the first wife as late as that time.
    6. A clause in this decree to the effect “ that he had the right to marry again.” That this clause was so inserted by the procurement of defendant, with the intention of inducing her to believe that he had the right to marry again.

      7. Plaintiff’s information of the first marriage, and her belief that the first wife was dead; her knowledge of the second marriage.
    8. His proposition of marriage to plaintiff in 1864, while she was under such belief, he well knowing that fact.
    9. His representation to her at that time that the first wife was dead, that the second had become a bad woman, and that he had obtained a decree of divorce from her on that ground, which gave him the right to marry again; exhibiting the paper and reading to her the clause aforesaid. His assurances that he had the right to marry.

      10. Her reliance upon his representations; her acceptance of and marriage with him July 1st, 1865.
    11. Their cohabitation until October, 1871, and issue of said marriage.
    12. The falsity of such representations, and his abandonment of the plaintiff.
    13. Plaintiff’s injury and damage resulting therefrom.
    14. The defendant’s pecuniary condition.
    15. His application, in April, 1873, to declare her marriage invalid, on the ground that the first wife was alive; a decree establishing that fact as late as April, 1874, and adjudging said marriage void from that date.
    16. An actual intent to cheat.

      Brown & Sheldon, for the appellant.

      John L. Hill, for the respondent.
   Donohue, J.:

In this case the defendant moves to compel plaintiff to state causes of action separately; he assuming the complaint to contain different causes of action. He also asks other relief on his motion, all founded on the same theory. We think the motion must be denied. The complaint, from commencement to the end, contains but one cause of action, and that, for the wrong done the plaintiff by the deliberate fraud of the defendant, in obtaining a decree of divorce, such as he did against his second wife. The statement of the complaint must, for the purpose of the motion, be taken as true; and all the matters set up and needed, either to the statement of the cause, or in aggravation of the damages — all the matters of the covenant and contract on which the defendant lays stress — are so set out. There is but one cause of action in the complaint. The order should be affirmed.

Present:—Tappen and Donohue, JJ.

Order affirmed, with costs.


text:
    HENRY S. CHANDLER, Appellant, v. JOHN T. HOAG, Respondent.

      Trustee of corporation—personal liability of—resignation of—action on by corporation.

    To make a trustee personally liable for debts of the corporation, three things must concur: the trusteeship, the neglect to publish the annual report, and the debt.

      Skater Quarry Co. v. Bliss (27 N. Y., 297) followed.
    A trustee has power to resign, and its acceptance and entry in the minutes of the corporation are not necessary to make the resignation complete.
    A person, becoming a trustee after twenty days from January first, is bound to publish annual report. 0
    Appeal from a judgment in favor of the defendant, entered on the report of a referee.
    The referee found that the defendant was, from the 27th day of January, 1872, until the 20th day of August, 1872, a trustee of the Star Publishing Company, a corporation organized pursuant to an act of the legislature, entitled “An act to authorize the formation of corporations for manufacturing, mining, mechanical and chemical purposes,” passed February 17, 1848, and the acts amending and extending the same. That between July 6th and October 26th, 1872, the corporation became indebted to ■the plaintiff's assignor for printing done at the agreed price of $230 per week. That the Star Publishing Company did not, within twenty days from January 1, 1872, nor at any time thereafter, before or on October 26, 1872, make, publish or file an annual report. That August 20, 1872, the defendant served on each trustee, the president and secretary of said corporation, a notice in writing, resigning his position as trustee, and never afterward acted as trustee.
    The referee found as conclusions of law, that Hoag ceased to be trustee, August 20, 1872, and was chargeable with no default as trustee.

      George C. Holt, for the appellant.
    Hoag should have filed report. (Boughton v. Otis, 21 N. Y., 261; Vincent v. Sands, 11 Abb. [N. S.], 366; Shaler and Hall Quarry Company v. Bliss, 27 N. Y., 297.) The resignation must be accepted by the corporation. (Russell & Ames on Corp., § 433, and cases cited; The People v. Metropolitan Board, etc., 26 N. Y., 328.)

      John L. Hill, for the respondent.
    Hoag was not bound to file report. (Boughton v. Otis, 21 N. Y., 266; Nimmons v. Hennion, 2 Sweeney, 663; Garrison v. Howe, 17 N.Y., 458; Shaler and Hall Quarry Company v. Bliss, 27 id., 297; McHarg v. Eastman, 7. Robt., 137.)
   Tappen, J.:

On the 27th January, 1872, the defendant became a trustee of the Star Publishing Company, a manufacturing corporation organized under the general law. On the 20th of August, 1872, he sent in a written resignation, and ceased thereafter to act as trustee. The resignation was not acted on, or entered upon the minutes of the company, until November following. Held, that his trusteeship lasted from January 27th to August 20th, 1872, and not longer.

When defendant took the office of trustee, the annual report of ' the company, required by law to be published within twenty days after the first of January in each year, had not been published. The omission to publish it centinned during the trusteeship. A debt was contracted by the company to the plaintiffs assignor ; it passed into judgment, and, after the regular proceedings thereon, this action is brought to charge the defendant with personal liab'il- " ity therefor. It will be observed that three things concur here, as required by Shaler and Hall Quarry Co. v. Bliss, to wit: The trusteeship, the default to publish, and the debt. The debt was for printing, at the rate of $230 per week; and, while the defendant will not be held liable for so much of the debt as was contracted after he ceased to be trustee, he will be held for that part" of it contracted between July 6th and August 20th, 1872, during which time he was a trustee. If he desired to avoid personal liability, it was his duty, as it was in his power, to have the annual report published immediately after he became trustee,

The fourth section of the general law in question, contemplates the resignation of a trustee. It does not say his resignation shall be accepted, nor does it require an entry in the minutes to make the resignation complete; and his right to resign does not seem to be in any doubt. The plaintiff having been nonsuited at the reference, a new trial is ordered at circuit, costs to abide event.

Present—Barnard, P. J., Tappen and Talcott, JJ.

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

      27 N. Y., 297.

       R. S. (Edmunds’ ed.), vol. 3, 735; Vincent v. Sands, 11 Abb. (N. S.), 366; Shaler and Hall Quarry Co. v. Bliss, 27 N. Y., 297.

       Squires v. Brown, 22 How., 45.