source: Caselaw Access Project

author: Dwight, P. J.:

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. GEORGE D. EMERSON, Respondent, v. THE BOARD OF ALDERMEN OF THE CITY OF BUFFALO, Appellant.

      Mandamus — it will lie against the successors of a canvassing board — a special provision relative to inspectors of election in Buffalo — Laws 0/T89O, chap. 262; 1870, chap. 519; 1891, chap. 105, sees. 366, 375, 508, and chap. 7; 1892, chap. 680.
    The revised charter of Buffalo, which went into effect in March, 1891, provided for five inspectors of election in each election district, three tó be elected by the electors of the district and two to be appointed by “ the board of aldermen immediately upon canvassing the votes cast at the annual election;” also that no ballot should be counted which contained more than three names for the office of inspector, and, further, that all the provisions of the charter relating to such office should take effect immediately.
    At the annual election, in November, 1891, most of the ballots cast in one of the election districts of the city contained the names of three persons for inspectors of election; the remainder contained but two names.
    The votes were returned to a canvassing board, which was composed of aldermen, and was called the common council, which decided to canvass only the votes which were cast for only two candidates.
    George D. Emerson, who was the third man named on the majority ticket, applied to the court subsequently for a mandamus to compel the board of aldermen, which went into office on January 1,1892, to complete the canvass and certify his election.

      Held, that the duty of canvassing the returns, which, in 1891, rested with the common council, could be enforced by mandamus against their successors, the board of aldermen.
    That the provisions of the charter of Buffalo, passed in 1891, governed the number of inspectors required at the annual election in 1891, and also at the time of the application for the writ of mandamus in July, 1892; that city, in this respect, not being subject to the laws which controlled the other parts of the State.
    Conflicting provisions of the general laws relating to the whole State and the laws relating to the city of Buffalo, considered.
    Appeal by tlie defendant, the Board of Aldermen of the City of Buffalo, from an order of the Supreme Court, entered in the office of the clerk of the county of Erie on the 22d day of July, 1892, granting a peremptory writ of mandamus, directed to the above-named board of aldermen, requiring said board of aldermen to ■complete the canvass of the returns and votes for inspectors of election for the sixth district of the Twenty-first ward of the city of ■Buffalo, cast at the annual election in 1891, and to determine and certify one of the three nominees for said office who received the largest number of votes as duly elected to the offices of inspectors of election for the sixth district of the Twenty-first ward, and who have not yet been declared elected; and to appoint two persons additional inspectors of election for said districts who received the next highest number of votes to the three elected, and requiring said board of aldermen to assemble on the 25th day of July, 1892, at 2.30 o’clock p. m., for the purpose aforesaid.

      W. F. Mackey, for the appellant.

      F. O. Lcmglilin and A. Moot, for the respondent.
   Dwight, P. J.:

The questions presented to the Special Term by the application for the writ of mcmdamus in this case were (1) whether the provisions of the revised charter of the city of Buffalo (chap. 105 of the Laws of 1891), relating to the inspectors of election in that city, had the force of law; and (2) whether they were capable of enforcement by the means adopted in this proceeding. We think both these questions were correctly answered in the affirmative, and that the order was properly made from which this appeal was taken. The facts involved were not in dispute; the questions presented related mainly to the effect to be given to several statutory enactments.

Section 366 of the statute above cited provided for five inspectors of election in each district, three to be elected by the electors of the district and two to'be appointed by “the board of aldermen immediately upon canvassing the votes; ” and a further provision of the same section was to the effect that no ballot should be counted as a vote for inspectors which bore more than three names for that office. This act became a law March 27,1891, and by its last section (§ 508) all of its provisions relating to elections to office were to take effect immediately. Accordingly, at the annual election in November, 1891, the ballots cast by a majority of nearly three to one of the electors of District No. 6 of Ward Twenty-first contained the names of three persons for the office of inspectors of election, while those cast by the next highest number of voters contained pnly two names for that office. These votes were returned by the inspectors of the district to the canvassing board of the city, which at tliat time, under the existing charter, was known as the common council, though composed wholly of persons elected as aldermen of the several wards. That board refused to canvass the votes returned for more than two candidates for inspectors of election on each ticket, and accordingly certified the election of those two candidates only who received the highest number of votes. The relator, George D. Emerson, was the third candidate on the majority ticket, having himself received 149 votes to sixty votes for the highest candidate on the other ticket.

On the 1st day of January, 1892, all the remaining provisions of the revised charter took-effect, and the “common council” above mentioned was succeeded as a canvassing board by the “ board of aldermen,” consisting in part of the aldermen who had composed the former board and in part of aldermen elected to fill vacancies or to represent wards newly created. It was to the new board of aldermen that the relator presented his petition praying that such board complete the canvass of returns which its predecessor had refused to complete, and certify his election as one of the inspectors of the district; also that it appoint the two additional inspectors as required by the statute. The board of aldermen, by a tie vote, refused to grant the prayer of the petition, and on his application to the court at Special Term the order was obtained from which this appeal was taken.

In the absence of other facts, those embraced in the foregoing statement would, no doubt, entitle the relator to the relief demanded. Mandmnus will lie to compel the performance of an official duty clearly prescribed by law on the part of a public officer or board. The case of the People ex rel. Smith v. Schiellein et al. (95 N. Y., 125), is abundant authority for the application of this rule to the case of a board of canvassers, and the case of the People v. The Board of Supervisors of Chenango County (8 N. Y., 330), for the proposition that while the duty continues it may be enforced against the successors in office of those who have originally neglected its performance. In the former of those cases it was said by the court: “ It would be a reproach to the laws to hold that an election to office by the people could be defeated by the neglect or refusal of the canvassers to perform the official duty of canvassing votes cast at an election.” And further: “ It is one of the peculiar functions of the writ of mcmdamus to meet and remedy the evils which would result from such a neglect of official duty.” In this case the board -of aldermen created by the revised charter of 1891 is made, in all respects, the successor, as a board of canvassers, of the common council — a board composed of aldermen — existing under the former charter, and the mere change in the name of the collective body can have no effect to relieve the one from the duty enjoined upon the other. By the revised charter the duty of canvassing the returns of votes cast for three inspectors of election in each of the ■districts into which the twenty-five wards, created thereby, were to be divided and the appointment of the two additional inspectors in each was laid upon the board of aldermen, eo nomine. That this was a duty first to be performed in respect to the election of 1891 admits of no doubt under the provision before mentioned, that all such parts of the statute, as related to elections to office, should take effect immediately; and, since the new board of aldermen were not constituted until the 1st day of January, 1892, it must have been the intention of the statute that that duty should be performed in 1891 by the board of canvassers as it then existed, composed of aldermen, but officially denominated the common council.

Attention is called in the argument of counsel for the appellant to a provision of section 508 (supra), to the effect that the division of the city into twenty-five wards, instead of thirteen as formerly, should not take effect until the 1st day of January, 1892, except so far as was necessary to render the election of ward officers in 1891 regular and legal. But this must, clearly, be taken subject to the previous general exception of all provisions of the act relating to elections to office, and so it was evidently construed. Section 3,2 of the act provides that “ the common council shall, on or before the first day of September in each year, divide the wards into convenient election districts of not more than 300 electors, and on or before the first Monday of October of each year designate the place of holding the polls in each district and fill vacancies in the office of inspectors of election.” The case shows that this was done in the year 1891, and that the election for all offices in November of that year was held accordingly in the several election districts into which the twenty-five wards had been thus divided. The meaning of the limitation referred to was evidently to preserve the existing ward lines for all the purposes of administration, until the revised charter should take effect as a whole.

So much of our inquiry has been directed merely to the question secondly above propounded, viz., whether, if the provision for five inspectors of election in each of the election districts of the city was in force at the time of the election and canvass of votes in 1891, and also at the time of the application for the 'writ of mandmnus in July, 1892, it was capable of enforcement by means of that writ.

It remains to consider the grounds upon which it is argued that that provision was not so in force.

The facts which seem to be relied upon as the basis of that contention are, briefly, as follows: For many years before the ballot reform act of 1890 (chap. 262 of the laws of that year), the general election laws of the State provided for three inspectors of election in each election district, whether of cities or towns, two to be elected by ballot of the electors, no one of whom should vote for more than two, and the third to be appointed by the presiding officers of each election from the two next highest candidates.

By an act for the revision of the charter of Buffalo, passed in 1870 (chap. 519 of the laws of that year), practically the same provision was enacted for that city.

The ballot reform act of 1890 (su/pra), provided for five inspectors in each district, three to be elected by ballot of the electors, no one of whom should vote for more than three, and two to be appointed by the presiding officers of the election, and to be selected from the three next highest candidates.

By chapter 7 of the Laws of 1891, passed February seventh of that year, a return was had by general law to the system of three inspectors as it existed previous to the act of 1890. This was followed in the same year by the special act for the city of Buffalo, the provisions of which have been heretofore quoted, and which became a law March 27, 1891.

By section 375 of that Act (chap. 105), it is provided that elections held thereunder shall be governed by the general election laws of the State where they are not inconsistent with the provisions of this act.”

Finally, by chapter 680 of the laws of the present year, the legislature has made general provision for the appointment of all inspectors of election in cities by the common council of each city; but tliis particular provision is, by section 11 of tbe act, made subject to the saving clause, unless otherwise provided by law,” and the repealing section makes no mention of any provision of the special act for the city of Buffalo.

We find in this statement of the course and présent status of legislation on the subject in question, nothing which militates against the legal force and validity of the provision of the revised charter of Buffalo, relating to the number and mode of designation of inspectors of election. It was enacted subsequently to the general law of 1891, and was, therefore, not affected by its provisions, and it was saved by the express terms of the act of 1892.

It is true that the discrepancy between the special statute for Buffalo and the successive general enactments applicable to the rest of the State, may well excite surprise and give rise to inquiry as to its cause; but such an inquiry would be merely curious and without practical result. If conjecture were to be indulged, it might easily be surmised that the provision in question in the charter of Buffalo, was framed to conform to the general act of 1890, which was in force when that charter was originally drafted, and that in the haste and inattention which sometimes accompany legislative action the fact was over-looked, when the special statute was enacted, that the general statute had only shortly before bee,n amended in the particular in question ; and that, from a similar cause, the existence of the special provision for the city of Buffalo was over-looked when the saving clause above mentioned was inserted in the general act of 1892. But such conjecture furnishes no ground for judicial action; the legislature must be presumed to have understood and intended the plain and necessary effect of the language employed in its several enactments; and the power to remedy hasty or ill-considered legislation, by repeal or amendment, rests with the legislature, and not with the courts.

Counsel for the appellant urge upon. our attention an apparent incompatibility between the provision in question in the charter of Buffalo, and the provision of the act of 1892 in respect to the appointment of the poll and ballot clerks, who constitute an important part of the machinery of elections under the latter statute. The provision referred to is found in section 12 of the last-mentioned statute, which, after prescribing the number and qualifications of clerks to be appointed, provides that “ at the first meeting of the inspectors of election in every district in which the law provides for the election of inspectors, the inspectors elected shall appoint one of the poll clerks and one of the ballot clerks, and the inspector appointed shall appoint the other poll clerk and ballot clerk.” Whereas the provision of the charter of Buffalo is for the election of three and the appointment of two inspectors; so that, as it is said, the language of the general law, “and the inspector appointed shall appoint,” etc., is inappropriate to the case of the city of Buffalo.

It is clear that, as a mere argument db inconvenienti, this suggestion, even if the incompatibility were absolute, would not be conclusive upon any question arising on this appeal; but we do not think the case in this respect presents any practical difficulty. Undoubtedly, in order to give effect to this provision of the general law in its application to the exceptional case of the city of Buffalo, the word “ inspector,” as used therein, may be read “ inspectors.” The actual use of the word in the singular, without adding the words “or inspectors,” only indicates the probability that the existence of the special provision for inspectors in the charter of Buffalo was over-looked in the framing and enactment of the provision for clerks in the act of 1892; but no such mere omission of the plural form of the word employed can have the effect of defeating the evident intention of the legislature to provide for the appointment of poll and ballot clerks in all the election districts of the State.

Upon the whole, we find nothing in legislation, subsequent to the enactment of the revised charter of the city of Buffalo, which has the effect to repeal, annul or impair the legal force and validity of the special provisions of that statute in respect to the number and mode of selection of inspectors of election in each of the election districts of that city; and that provision being in force, the relator was duly elected to the office in question, and was entitled to a canvass of his vote and a certificate of his.election.

The order for a peremptory mandamus should be affirmed.

Maoomber and Lewis, JJ., concurred.

Order appealed from affirmed, with costs.


author: Merwin, J.:

text:
    FRED C. EDDY, as Receiver of the SYRACUSE SCREW COMPANY, Plaintiff, v. LONDON ASSURANCE CORPORATION, Appellant, and GILES EVERSON, Respondent. And Seven Other Cases.

      Jñreinsurance — a policy void between the assured and the company — rights of a mortgagee under various clauses of the New York standcm'd insurance policy — effect of a foreclosure — effect of obtaining additional insurance — subrogation— additional insurance — apportionment of the loss — after one complete appraisal the power of appraisers is exhausted.

    Giles Everson held three mortgages, amounting to about thirty thousand dollars, on property of the Syracuse Screw Company, of which Fred C. Eddy subsequently became receiver. The property consisted of two lots and buildings, one on Pearl street and the other on Lock street, in Syracuse. Certain fire insurance companies issued five policies, each insuring against loss on the Pearl street property in the amount of $2,000, each policy limiting the total risk of all the companies to $10,000, and forbidding further insurance unless consented to.
    These policies were continued in force for the benefit of the receiver, who also procured insurance for $8,000 on the Lock street property from four other companies, whose policies permitted “other insurance.”
    Subsequently, and in July, 1888, the receiver procured of certain other companies additional insurance on the Pearl street property without having obtained the consent of any of the companies which had previously issued policies upon this property. He also obtained additional insurance on the Lock street property. All this additional insurance was effected without the knowledge of Everson. Tlie nine policies first mentioned were in the form known as the standard insurance policy of the State of New York, and in them the loss was made payable to. Everson as mortgagee.
    In June, 1888, Everson began to foreclose his three mortgages, and thereafter, and on December fourth of that year, a fire occurred which damaged both pieces of property. On December 17, 1888, Everson obtained judgment upon two of the mortgages, and thereafter sold all tlie property to another person, on which sale a large deficiency resulted.
    In February, 1890, he recovered judgment on the remaining mortgage for $12,474. None of the insurance companies consented to these foreclosures, although all the policies contained a clause making them void if, with the knowledge of the insured, foreclosure proceedings were commenced by virtue of any mortgage thereon.
    In actions brought by the receiver upon the nine policies, to which Everson was. made a party defendant:

      Held, that the foreclosure proceedings, brought without the consent of the companies, rendered the policies void as between the companies and the receiver.
    That the policies upon the Pearl street property were void, as between the receiver and the companies, by reason of the additional insurance which he procured.
    A mortgagee clause contained in all the nine policies provided that the insurance, as to the interest of the mortgagee, should not be invalidated by any act or neglect of the mortgagor or owner, nor by any foreclosure, provided that the mortgagee paid the premiums on demand in a case where the mortgagor had failed to pay it. It further provided that whenever the company paid the mortgagee for a loss, while claiming that it was not liable to the mortgagor, it should be subrogated to the rights of the mortgagee, as to all securities held as collateral to the mortgage debt, or that the company, at its option, might pay the mortgage to the mortgagee, and thereupon should become entitled to an assignment of the mortgage and any collaterals, “but no subrogation shall impair tlie rights of the mortgagee to recover the full amount of his claim.”

      Held, that, as between Everson and the companies, the policies were valid.
    That his rights were not affected by the additional insurance nor by the foreclosure proceedings.
    That, although Everson had, by proceeding to a sale in his foreclosure, made it impossible that the companies should be' subrogated to his rights under the mortgages, yet his sale was proper, it being the only method by which he could enforce his right under the policy “to recover the full amount of his claim.”
    That the companies had the option to pay the mortgage debt to Everson and take an assignment from him, but had not done so.
    That this right of subrogation could not impair his right to recover the full amount of his claim.
    The policies contained a clause that the insurer should not be liable for a greater proportion of any loss on the property than the amount thereby insured bore to the whole insurance, whether valid or not, and two of the policies contained such a provision in the mortgagee clause.

      Held, that, in apportioning the loss, the additional insurance could not be considered in aid of the companies insuring.

      That the provisions of the mortgagee clause wore in the nature of an independent insurance of the mortgagee’s interest, which was not subject to the restrictions of the policy binding upon the mortgagor.
    That the two policies, containing in the mortgagee clause the limitation of liability to the proportionate part only of the loss, wore to receive the same construction, as any other construction would be inconsistent with the provision that the mortgagee should not be injured by any act of the mortgagor.
    That, in the absence of proof of a further agreement between the parties, appraisers of a loss under a policy, who had made a complete appraisal covering the whole subject submitted to them, had no power to make a further appraisal.
    Appeals by the defendant, the London Assurance Corporation, from a judgment of the Supreme Court, entered in the office of the •clerk of Onondaga county on the 8th day of July, 1891, in favor of the defendant Giles Everson and against the defendant, the London
    Assurance Corporation, for $1,281.62, damages and costs.
    By the defendant, the Liberty Insurance Company of New York, from a judgment of the Supreme Court, entered in the same office •on the same day, in favor of the same defendant, against the Liberty Insurance Company of New York, for the same amount and costs.
    By the defendant, the Fire Association of Philadelphia, Pennsylvania, from a judgment of the Supreme Court, entered in the same office on the same day, in favor of the same defendant, against the defendant, the File Association of Philadelphia, for the same .amount and costs.
    By the defendant, the Phoenix Insurance Company of Hartford, 'Connecticut, from a judgment of the Supreme Court, entered in the ■same office on the same day, in favor of the same defendant, and .against theJPhcenix Insurance Company of Hartford, Connecticut, for $2,193.26, damages and costs.
    By the defendant, the "Westchester Fire Insurance Company of New York, from a judgment of the Supreme Court, entered in the same office on the same day, in favor of the same defendant, ■against the Westchester Fire Insurance Company of New York, for $1,606.11, damages and costs.
    By the defendant, the New York Bowery Fire Insurance Company, from a judgment of the Supreme Court, entered in the same -office on the same day, in favor of the same defendant, against the New York Bowery Fire Insurance Company, for $1,606.11, damages and costs.

      By the defendant, the Williamsburgh City Fire Insurance Company, from a judgment of the Supreme Court, entered in the same office on the same day, in favor of the same defendant, against the defendant, the Williamsburgh City Fire Insurance Company, for-$1,606.11, damages and costs.
    By the defendant, the Fire Insurance Association of London, England, from a judgment, entered in the same office on the same-day, in favor of the same defendant, against the defendant the Fire-Insurance Association of London, for $1,281,62, damages and costs..
    All the actions were tried together before the same referee.
    All of the actions are upon policies of insurance, obtained by the-plaintiff or his predecessor in title, and having the loss payable to Everson as mortgagee. The actions were tried together, the evidence given being deemed to be given in all the cases. There were-separate reports and judgments. Everson was made a party defendant, because he declined to be plaintiff, and he put in an answer in. each case and served it on his co-defendant.
    In and prior to December, 1887, the Syracuse Screw Company, a manufacturing 'corporation, was the owner of certain property in the city of Syracuse, having thereon two buildings, one on Pearl and the other on Lock street. Everson had three mortgages given by the company upon the entire property, to the amount, altogether,, of about thirty thousand dollars. On the 17th of December, 1887, the London Assurance Corporation, the Fire Association of Philadelphia, Pennsylvania, the Phoenix Insurance Company of Hartford, Connecticut, and the Fire Insurance Association of London, England, each issued a policy insuring the company for the term of' one year against loss or damage by fire to an amount not exceeding-two thousand dollars upon the Pearl street property. On December 29, 1887, a similar policy for same amount was issued by the-Liberty Insurance Company of New York city. Each of these five’ policies had the clause, “privilege for ten thousand dollars concurrent insurance, including this policy.” On the 16th of Flay, 1888, the plaintiff was duly appointed receiver of the Syracuse Screw Company, and the policies, by proper indorsement, were continued in force for the benefit of the receiver, loss payable as before. On the 19th of November, 1888, the New York Bowery Fire Insurance-Company and the Williamsburgh City Fire Insurance Company each issued a policy’insuring the plaintiff, as receiver, for the term of one year against loss or damage by fire to an amount not exceeding two thousand dollars upon the Lock street property. On November 20, 1888, the Phoenix Insurance Company of Hartford, Connecticut, and the Westchester Fire Insurance Company of New York, each issued a similar policy for same amount. Each of these four policies had the clause, “ other insurance^permitted.”
    ■ The nine policies above described are the policies upon which these actions are brought, and each is in the form known as the standard fire insurance policy of the State of New York, and contains, among other things, the following conditions:
    “This entire policy, unless otherwise provided by agreement indorsed hereon or added hereto, shall be void if, with the knowledge of the insured, foreclosure proceedings be commenced or notice given of sale of any property covered by this policy by virtue of any mortgage or trust deed.”
    “This entire policy, unless otherwise provided by agreement indorsed hereon or added hereto, shall be void if the insured now has or shall hereafter make or procure any other contract of insurance, whether valid or not, on property covered in whole or in part by this policy.”
    “ This company shall not be liable under, this policy for a greater proportion of any loss on the described property, or for loss by and expense of removal from premises endangered by fire, than the amount hereby insured shall bear to the whole insurance, whether valid or not, or by solvent or insolvent insurers, covering such property, and the extent of the application of the insurance under this policy or of the contribution to be made by this company in case of loss, may be provided for by agreement or condition written hereon or attached or appended hereto.”
    To each policy there is attached a “ mortgagee clause,” so called. This clause in the policies of the London Assurance Corporation, the Fire Association of Philadelphia, Pennsylvania, and the Phoenix Insurance Company, of date December 1Y, 188Y, has, among others, the following paragraphs:
    “ Loss or damage, if any, under this policy, shall be payable to G-iles Everson, as first mortgagee (or trustee), as interest may appear, and this insurance, as to the interest of the mortgagee (or trustee) only therein, shall not be invalidated by any act or neglect of the mortgagor or owner of the within described property, nor by any foreclosure or other proceedings or notice of sale relating to the property, nor by any change in the title or ownership of the property, nor by the occupation of the premises for purposes more hazardous than are permitted by this policy; provided, that in case the mortgagor or owner shall neglect to pay any premium due under this policy, the mortgagee (or trustee) shall, on demand, pay the same.”
    “ In case of any other insurance upon the within described property, this company shall not be liable under this policy for a greater proportion of any loss or damage sustained than the sum hereby insured bears to the whole amount of insurance on said property, issued to or held by any party or parties having an insurable interest therein, whether as owner, mortgagee or otherwise.”
    “ Whenever this company shall pay the mortgagee (or trusted) any sum for loss or damage under this policy, and shall claim that, as to the mortgagor or owner, no liability therefor existed, this company shall, to the extent of such payment, be thereupon legally subrogated to all the rights of the party to whom such payment shall be made under all securities held as collateral to the mortgage debt, or may, at its option, pay to the mortgagee (or trustee) the whole principal due to or to grow due on the mortgage, with interest, and shall thereupon receive a full assignment and transfer of the mortgage and of all such other securities; but no subrogation shall impair the right of the mortgagee (or trustee) to recover the full amount of his claim.”
    The mortgagee clause in the other policies in controversy was the same, except that the second paragraph above quoted was omitted.
    On the 4th of December, 1888, the property insured was partially destroyed by fire. Thereafter, under the provisions of the policies, an appraisal was made of the loss. Upon the Pearl street property the loss was found to be $5,225.15. Upon the Lock street property the loss, as the referee finds, was appraised at $5,322.68. The appellants claim that in this the referee erred, and that the appraisal should be found at $4,877.76.
    On the 9th of June, 1888, the defendant Everson commenced, in the Supreme Court, an action for the foreclosure of the three mortgages held by him. To the last one of the mortgages the receiver put in .a defense. The action as to the other two was severed, and judgment of foreclosure upon them was entered on the 17th of December, 1888. A sale thereon was had on January 9, 1889, and the entire property sold for $15,100, leaving a deficiency unpaid of $1,921.86. Such proceedings were thereafter taken in the action that Everson, on the 19th of February, 1890, recovered judgment upon his other mortgage, it being adjudged that there was due him thereon the sum of $12,171, aside from the deficiency above stated. No consent for or agreement in relation to the foreclosure proceedings was ■ever obtained from any of the insurance companies.
    On the 2d and 25th of July, 1888, the plaintiff obtained from other ■companies other insurance upon the Pearl street property to the amount of $2,750, running one year. No consent to this additional insurance was given by any of the insurance companies in the present ^controversy.
    The plaintiff also, at the same dates, obtained additional insurance upon the Lock street property to the amount of $1,750, running •one year. This additional insurance in both cases was without the knowledge or consent of Everson.
    The referee decided that the foreclosure proceedings, without the ■consent of the insurance companies, rendered the contracts of insurance void as between the plaintiff and the defendant companies, and that the insurance upon the Pearl street property was also void as between the plaintiff and the companies by reason of the additional insurance beyond the $ 10,000. He, however, held that, as between the companies and Everson, the insurance was good, and that the nights of Everson were not affected by the additional insurance, or by the foreclosure proceedings, and that he was entitled to have the loss upon the Pearl street property apportioned among the companies upon the basis of $10,000 of insurance, and the loss upon the Lock .street property upon the basis of $8,000 insurance. This resulted in a judgment in favor of Everson against each of the companies, who issued a policy on the Pearl street property for the sum of $1,015.03, and against each of the companies who issued a policy on the Lock street property for $1,330.67, with interest from March 29, 1889, besides costs. The referee also adjiidged in each case that the insurance company, “ upon making payment to said Everson of said loss, is entitled to be subrogated to all the rights of said Everson under any and all securities he may hold as collateral to the said mortgage debt, to the extent of such payment, or to pay the said debt and receive an assignment in full thereof, together with all such securities; but such subrogation cannot impair defendant Everson’s right to enforce the collection of his claim in full against the principal debtor, or by means of any collateral security he may hold.”
    The plaintiff did not appeal.

      A. H. Sawyer, for the appellants.

      Waters, McLennan & Waters, for the respondent.
   Merwin, J.:

The questions upon these appeals relate to the rights of the mortgagee against the insurers. The appellants claim that their right of subrogation has been impaired bv the foreclosure and sale ; that the-mortgagee by such sale has put it out of his power to subrogate the insurers to the rights which he had under his securities at the time of the fire, and that, therefore, he cannot recover for the loss.

By the mortgagee clause it was provided that, whenever the insurer should pay the mortgagee any sum for loss, and should claim that, as to the mortgagor, no liability therefor existed, the insurer should, to the extent of such payment, be thereupon legally subrogated to all the rights of the mortgagee, under all securities held as collateral to the mortgage debt, or at its option might pay to the mortgagee the whole of the mortgage debt and thereupon receive a full assignment of the mortgage and all such other securities. It was also provided that no subrogation should impair the right of the mortgagee to recover the full amount of his claim. This permitted the mortgagee to continue the foreclosure proceedings, which were-commenced long before the fire, and to apply the proceeds of the sale upon the mortgage debt. In no other way would the right of the mortgagee to recover the full amount of his debt be preserved in accordance with the express stipulation. After the application of such proceeds there still remained a large deficiency, much more than the entire claim against the insurers. The latter did not offer to pay the mortgage debt, as they might have done and taken an assignment.

The appellants, in substance, claim that, upon payment of the loss, they became owners of an equivalent proportion of the mortgage debt and would be entitled .to the benefit of the same proportion of the proceeds of the securities.. This, however, would be inconsistent with the right reserved to the mortgagee to collect the full amount of his claim, and that the subrogation should not impair it.

In Foster v. Van Reed (70 N. Y., 19), there was a provision in the policy that in case of loss the assured should assign to the insurer an interest in the mortgage equal to the amount of loss paid. The insurer, however, paid the full amount of the mortgage, and, therefore, no question of importance here was considered. In Lett v. Guardian Fire Insurance Company (52 Hun, 570; 125 N. Y., 82), the plaintiff was assignee of the policy, but not of the mortgage. He represented the owner of the property, but as to the owner the policy was void. The mortgaged property after the loss was fully sufficient to pay the entire mortgage debt. It was held that plaintiff could not recover as he could not give effect to the right of subrogation which the insurer had upon payment of the loss. Many other cases are cited by the counsel for the appellants, but I find none that sustains the position that under a mortgagee clause like the present one the mortgagee could not enforce his securities to the full amount of his debt. His right to do this was superior to-the right of subrogation, and so made in express terms.

The appellants further claim that the referee erred in excluding from the basis of apportionment the additional insurance that the plaintiff- had obtained, and in which the mortgagee had no interest.

In the policies upon the Pearl street property the limit of insurance was placed at $10,000. The additional insurance was in violation of this provision, and this, as against the plaintiff, made the policies in suit on that property -void. In the policies on the Lock street property there was no such limit. All the additional insurance was without the knowledge or consent of the mortgagee. By the mortgagee clause it was provided that the insurance, as to the interest of the mortgagee, “ shall not be invalidated by any act or neglect of the mortgagor or owner.” Does this prevent the insurer from having, in the apportionment of the loss, the benefit of the additional insurance ?

In the body of each of the policies in suit there is a provision that the insurer shall not be liable for a greater proportion of any loss on the described property than the amount thereby insured shall bear to the whole insurance, whether valid or not. The claim of the appellant is that there is nothing in the mortgagee clause that will prevent giving effect to this provision, and, therefore, including in the apportionment the additional insurance. It was, however, decided in Hastings v. Westchester Fire Insurance Company (73 N. Y., 141), in regard to the effect of a similar provision in a policy and a mortgagee clause -in this respect like the one here, that the insurer was not entitled in the apportionment to the benefit of additional insurance obtained by the mortgagor, without the knowledge of the mortgagee, although, by the policy, other insurance was permitted as it was here in the four policies on the Lock street property. It was there held that the mortgagee clause operated as an independent insurance of the mortgagee’s interest and gave him the same benefit as if he had taken out a separate policy free from the conditions imposed upon the owner and making him responsible only for 1ns own acts. (See, also, Hartford Fire Insurance Company v. Olcott, 97 Ill., 455.)

The Hastings case, it seems to me, disposes, adversely to the appellants, of all question as to the apportionment, except, perhaps, in the •cases of the London Assurance Corporation, the Fire Association of Philadelphia, and the case of the Phoenix Insurance Company under its first policy. The mortgagee clause in those three cases had an additional paragraph, that in case of any other insurance upon the described property the company shall not be liable for a greater proportion of any loss than the sum thereby insured bears to the whole amount of insurance on the property, issued to or held by any party or parties having an insurable interest therein, whether as owner, mortgagee or otherwise. In each of those three policies the insurance was limited to $10,000, and the obtaining of the additional insurance was in violation of this provision and, as against the mortgagor, made the policies void. Here, according to the decision in the Hastings case, there was an independent contract between the mortgagee and the insurers, by one provision of which it was agreed that the mortgagee should not be injured by the act of the mortgagor in obtaining additional insurance. Can it be held that, by another provision, it was understood that he should be injured by such act? "Was it the intent of the parties that insurance, obtained by the owner in violation of the limit provided for, and by reason of ■ which the insurance would be void as against the owner, and the insurer, if it paid a loss to the mortgagee, would have the right of subrogation, should be included in the apportionment of the loss ? Effect must be given, if possible, to all the provisions of the contract. The main object of the whole was to give the mortgagee a security upon which he could rely. Any act or neglect of the mortgagor or owner is to be' thrown out of view as impairing the security of the mortgagee. This would throw out of consideration the question of additional insurance, as that was the unauthorized act of the owner, and would leave the apportioning paragraphs to apply only to the insurance obtained within the authorized limit, or to any insurance obtained upon the interest of the mortgagee himself. The general rule is that, before different policies of fire insurance can be held to contribute to the same loss, the insurance must have been upon the same interest in the same property, or some part thereof. (Lowell Manufacturing Co. v. Safeguard Fire Ins. Co., 88 N. Y., 591.) In Acer v. Merchants’ Insurance Company, (57 Barb., 68), the policy issued to plaintiff contained the condition that “if the assured, or any other person or parties interested, shall have existing, during the continuance of this policy, any other contract or agreement for insurance (whether valid or not) against loss or damage by fire on the property hereby insured, not consented to by this company, * * * then this insurance shall be void and of no effect.” It was held that the expression, “ other persons or parties interested,” referred merely to the parties interested in the plaintiff’s insurance, and that if other parties who had a different interest obtained insurance upon their interest, the plaintiff’s policy would not be invalidated.

Ve think that the additional insurance should not be considered in making the apportionment of the loss.

The only other question that need be considered relates to the amount of damages recoverable upon the policies upon the Lock street property. It is claimed by the appellants that the referee erred in finding that the award of loss on that property was the sum of $5,322.68, and that it should have been the sum of $4,877.76. Tlie difference, being the sum of $444.92, was made up from two supplemental statements, one of $284.05, and the other of $160 90.

In pursuance of the provisions of the policies, an agreement for the appraisal of the amount of the loss was entered into by the parties, a separate agreement being made as to each property. In each agreement E. M. Allen and D. I. Langworthy were named as appraisers, and they in each case named Henry Russell as umpire. The agreement is dated December 7,1888. Thereafter the appraisers made an award as to the Pearl street property, which is dated December 21, 1888, and about which there is no dispute. An award was made by the appraisers and the umpire as to the Lock street property, which is dated December 28, 1888, and fixes the damage at $4,877:76. At the end of this there is a written approval signed by Everson. This appraisal, in form, is complete and covers the whole subject that was submitted by the agreement, and no reference is made to other or further papers or statements. After the admission in evidence of the appraisals above referred to, Mr.Wilson, the attorney for plaintiff, testified: I knew about the time when the appraisal was being made; after the appraisal I looked at the papers which they made; I found them at the insurance office of Pickard & Jones, the insurance agents who issued the policies, or some of them; I found the awards which have been introduced in evidence here; I found two additional papers with them — two papers in addition to the two that have been introduced in evidence; I have inquired of Mr. Jones for those papers; Mr. Jones is in court; he states that he has looked for the papers among his papers and is unable to find them.” The witness further testified that he made and had correct copies of the two papers and that they were signed by the appraisers, Allen and Langworthy. Upon cross-examination he testified that there were two separate papers ; that Henry Boggs, whose name appeared attached to one of the papers, was a machinist, and that he knew nothing about what he had to do with the case, except what the appraisers said ; that the appraisers lived in Syracuse; that the two papers were with the two awards in a package, folded in together, and in Mr. Jones’ possession; that they were not physically attached to the awards. The copies were then received in evidence over the defendant’s objections, which stated, amóng other grounds, that no sufficient foundation was laid for the admission of the copies, and that they were incompetent and immaterial. It appeared that potice to produce had been served upon defendant’s attorneys.

Both of these papers bear date January 15, 1889. One purports to be signed by Henry Boggs, E. M. Allen and D. I. Langworthv, and is headed “ estimate of damages on the following items in building of screw works.” The items named are “leather belting,” “ shafting, pulleys, hangers, etc.” “ Worthington steam pump ” and “ small steam pump,” and the aggregate of the damages carried out is $284.05. At the bottom is entered “Pearl street.” The other paper purports to be signed by Allen and Langworthy, and is as follows: “¥e, the undersigned, find items to be added to award of fir.e damages upon Lock street building as follows: Benches and ceilings (shelving), $83.90; counters, $40; stairs, $20; water tank, $7; doors and fz’ames, $10; total, $160.90.” Thez’e is evidence tending to show that the items in both paper’s were in or a part of the Lock street building. The refez'ee in his special findings found “that an additional award was also made of $444.95.” This was a finding, in effect, that the two papers together constituted an additional award, and was valid as such.

Assuming that a case was made for introducing in evidence copies instead of the originals, the question is whether they amount to a valid additional award. In the first paper there is nothing indicating a design to add to the award bn the Lock street property, or to indicate that the damages to the items there specified, so far as they were covered by the policies, were not fully included in the awards already made. In the second paper thez’e appears an intention to add to an award already made of damages “upon Lock street building.” This subject was specifically passed upon in the original award. That was dated December 28, 1888, and upon the evidence as it stands we must presume that it was then delivered. The appraisers had no right after that to make an additional award, there being no evidence to show that there was any further agreement upon the subject. (Doke v. James, 4 N. Y., 568; Fallon v. Kelehar, 16 Hun, 266; Flannery v. Sahagian, 45 N. Y. St. Rep., 598.) The second award would be void. (Bayne v. Morris, 1 Wall, 97.) The first or original award was approved by Everson. Theré is no explanation as to the making of the subsequent papers. In the proofs of loss on the Lock street property the amount claimed was $4,914.76. The original award was $4,877.76.

It must, I think, be held that neither of the two additional papers-constituted a valid additional award, and that the evidence is not sufficient to justify the finding that they, or either of them, can be^ deemed a part of the original award. It follows that the recoveries upon the policies on the Lock street property must be based on the loss at $4,877.76. This involves a reduction of the recovery on each of those four policies from the sum of $1,330.67, and interest from March 29, 1889, to the sum of $1,219.44, with interest from the same date.

No sufficient reason is apparent for any other interference with the judgments appealed from.

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

The judgments in the cases against the London Assurance Corporation, the Liberty Insurance Company of New York city, the Fire Association of Philadelphia, Pennsylvania, and the Fire Insurance Association of London, England, are affirmed, with costs. The judgments in the cases against the 'Westchester Fire Insurance Company, the New York Bowery Fire Insurance Company, and the Williamsburgh City Fire ■ Insurance Company, are modified by reducing the recovery in each case to the sum of $1,219.44, with interest from March 29, 1889, and as modified affirmed, without costs of the appeal to either party. The judgment in the case against the Phoenix Insurance Company is modified by reducing the recovery on the policy, dated November 20, 1888, to the sum of $1,219.44, with interest from March 29, 1889, and as modified affirmed, without costs of the appeal to either party.


author: Hardin, P. J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. PATRICK READY, Appellant, v. THE MAYOR AND COMMON COUNCIL OF THE CITY OF SYRACUSE and Others, Respondents.

      Municipal corporations — rights of a contractor enforceable by mandamus against a city — final certificate of a city engineer, in the absence of fraud the city cannot attach it.

    In a proceeding by a contractor to enforce, by mandamus, payment by a city for the construction of a sewer, it appeared that the contract was completed; that the city engineer had certified thereto, and to a final estimate of the work; that thereupon the common council had adopted a resolution declaring its intention to issue bonds to pay for the work; that an assessment-roll, based upon an apportionment of the expense of the work, had been left with the city treasurer, and that about one-fourth in amount of the lot owners had paid to him their assessments.
    The defense of the city was that the work was improperly done, and practically useless to the owners of adjacent property, and that the certificate of the engineer had been given under a mistake as to the fact of performance. It further appeared that the contractor could not sue at law, because by the contract he was not to be paid by the city until the taxpayers had paid their assessments.

      Held, that the contractor could maintain the proceeding by mandamus.

    That as it was agreed that the engineer should supervise the woik, and that his certificate should be conclusive upon the question of payment, and as no fraud was alleged or shown, the final certificate of the engineer was binding on the city and could not be attacked by it.
    That as the facts showed an opportunity to the city to inspect and direct the work, and that such direction had been given by it; its acceptance of the work on the approval, in effect, by the common council of the return of the engineer, and the voluntary payment by parties assessed of a considerable sum of money, it was the duty of the city to pay to the contractor the sum collected and to issue the contemplated bonds.
    Appeal by tbe relator, Patrick Ready, from a judgment and final order of the Supreme Court, entered in the clerk’s office of Onondaga county on the 18th day of April, 1892, denying his application for a writ of peremptory mandamus, with notice of an intention to bring up for review upon such appeal said judgment and final order, and an order of said court, entered in said clerk’s office on the 18th day of April, 1892, which denied the relator’s application for judgment upon an alternative writ of mcmdamus, and directed that the issues be tried before the court at the January Circuit, 1891.

      The case was tried at the Onondaga Circuit by the court.
    August 8, 1890, an alternative writ was allowed at the Special Term and a return was filed to the writ September 5, 1890. In behalf of the relator it was alleged that he was a contractor with the city for the construction of a thirty-six-in eh brick sewer in Spruce street, from "Washington to East Eayette street, and in East Eayette street, from Spruce to Beech street; that he had completed the contract; that the city engineer had certified to such completion and to a final estimate therefor; that the common council, upon the receipt of such certificate, had adopted a resolution declaring its intention to issue local-improvement bonds to pay for such improvement under the provisions of the city charter; that an assessment-roll for such improvement was left with the city treasurer after the appointment of appraisers and the apportionment of the expenses upon the several lot owners; that the treasurer had received and collected $1,371.19 on account of said improvement; that no further proceedings have been taken by the defendants to collect the balance, and that the relator had not received the $1,371.19, nor any part of it; that the relator asked to have the writ command the payment of the $1,371.19, the issuing of the bonds specified in the resolution and the application of the proceeds to the payment of the costs of the improvement, and that the collection of the taxes upon the said assessment-roll remaining unpaid be enforced.
    There was a return to the writ which admitted the execution of the contract, and averred that the relator undertook to perform the work and furnish the materials referred to in the contract, but that he had failed and neglected so to do, and had so performed the work and built the sewer as to make it practically useless and of no benefit whatever to any of the owners along the line of the improvement. The return also alleged that the certificate given by the city engineer was given under a mistaken idea of the facts, and was erroneously and incorrectly made. It alleged that upon the receipt of said certificate the common council directed the costs of the improvement to be assessed upon the property along the line of the sewer, and passed a resolution to that effect on the •31st of March, 1890. A peremptory writ was refused on motion and a trial ordered at the circuit in January, 1891; and a trial was had, a jury having been waived, before the court. After hearing the evidence offered by the relator, and the evidence offered by the defendants, the court made and filed a decision denying the writ, with costs. Prom the judgment entered upon such decision this appeal was taken.
    As matter of fact the court found: “ That on or about December 23, 1889, said City Engineer made a certificate in writing to the common council of the City of Syracuse, to the effect that said work had been performed, and said sewer constructed in accordance with the terms of said contract.” It also found: “ That said certificate of said engineer so given was erroneous, incorrect, false and untrue.” Also: “ That, as appears by the said certificate and final account of said Engineer, the costs of the construction of said sewer amounts to the sum of five thousand two hundred and forty-one dollars and twenty-five cents ($5,211.25).” Also: “ That, upon the coming-in of said certificate and final account, and relying upon the truth of the matters therein contained, and in the belief that said contract had been fully performed by the relator, the Common Council of the City of Syracuse passed the following resolution on the 31st day of March, 1890 :
    ‘Besol/oed, That this counsel hereby declares its intention to issue local improvement bonds to such portion of the cost of constructing a brick sewer in East Eayette street from Beach to Spruce streets, and in Spruce street from East Eayette street to East "Washington street as shall be proper under the provisions of section 112 of the city charter, as amended by the Laws of 1888; and the city treasurer is hereby authorized and directed to issue tax notices therefor in accordance with this resolution.’

      “ That said common council, in like reliance upon said account of said engineer, directed the cost of said sewer to be assessed upon the property benefited by the construction thereof, and the same was so assessed by the city assessors, and the assessment-roll left with the city treasurer, and he has received the sum of one thousand three hundred and seventy-one dollars and nineteen cents ($1,311.19) ” from parties owning lands along the line of the sewer who were assessed therefor.
    The court found as conclusions of law as follows:
    “ First. That any change or alteration, made or consented to by relator, of the said city engineer in the construction of said sewer, or in the depth or grade of the same from that provided for by said contract, plans, specifications and profiles, was illegal and unauthorized by law, and not binding on the city of Syracuse or the common, council of that city.
    “ Second. That the certificate or final account submitted by said city engineer on the 23d day of December, 1889, was not conclusive or binding on the city of Syracuse, and that said city of Syracuse, or the common council of said city, was not estopped by said certificate or account from denying the performance of said contract.
    “ Third. That the work as performed, and the sewer as constructed by said relator, was not a substantial compliance with the terms of said contract.
    “ Fowrth. That the common council of said city was in no wayestopped from rescinding the intent and directions expressed in the said resolution of March 31, 1890.
    “ Fifth. That the city of Syracuse cannot be compelled to issue bonds for the purpose of raising money to pay the balance of said assessment, or any part thereof.
    “ Sixth. That the city of Syracuse cannot be compelled to issue a. warrant for the collection of the balance of said assessment remaining unpaid, or any part thereof.

      “ Seventh. That the city of Syracuse cannot be compelled to pay the relator any moneys received by it from the property owners, assessed for the construction of said sewer.” Exceptions were duly taken to such findings, of law.

      M. M. Waters, for the appellant.

      Chernies F. Ide and C. G. Baldwin, for the. respondents.
   Hardin, P. J.:

According to the notice calling for bids and specifications and the contract between the parties, payment for the work in question was not to be made £‘ until the same shall have been completed and the cost assessed and collected from the taxpayers owning property liable to taxation for the construction of said work.” In the contract between the parties it was agreed as follows : “ That no payment shall be made to the party of the first part (relator) under this contract until the cost of said work shall have been ascertained'and assessed upon and collected from the taxpayers liable to local taxation for the same.”

The contractor, under the provisions of his contract, therefore, was not in a situation to maintain an action at law for the recovery ■.of the contract-price. (Hunt v. The City of Utica, 18 N. Y., 442.) The contract provided in terms that the work should be carried forward in the view and under the direction of the city engineer. It •expressly provided that “ all plans, explanations or directions necessary to the carrying out and completing satisfactorily the different ■descriptions of work contemplated and provided for under this contract will be given by the said engineer, and such plans and directions shall in all cases be complied with. And it is hereby mutually .agreed between the parties hereto that the return of the said engineer shall be the account by which the amount of work done and the materials furnished under this contract shall be computed.” The contract contained also a further provision that “ when, in the opinion of the said engineer, the work shall have been fully ■completed in accordance with this agreement, the said engineer shall, as soon as practicable, make up the final account therefor, and upon his final acceptance of the work, shall return to the common ■council said account duly verified by him, whereupon said common ■council shall review, and, when satisfactory, shall approve the same, .and thereupon the moneys or property deposited with his proposal for the work herein described shall be returned to the party of the ■first part, and as soon thereafter as the cost of said work shall have Leen collected from the said taxpayers the party of the first part shall be entitled to receive the amount due on said final account retained in full settlement of his contract, less the amount herein-before specified.” By the evidence it appears that a final estimate .and a statement of the items relating to the work were prepared by the engineer showing the city of Syracuse indebted to the relator in the sum of $5,241.24 for the work, labor and materials furnished in the statement and performed and delivered under the ■contract; .subjoined to that statement was the following :

“ I certify the above amount to be correct, and that the work has been performed and completed according to contract and specifications. .< JOHN B. BORDEN,
Gity JEngmeer.
Syracuse, Dec. 23d, 1889.”'

It is to be observed that tbe return contains no allegation of fraud or fraudulent practice on the part of the contractor or the engineer j-nor is there any finding by the court of any fraud in obtaining the-certificate of the engineer. During the trial Leonard Durston, who was an assistant engineer during the construction of the sewer, testified as follows: I saw the work during its progress every time: Mr. Borden was there; most every day; I examined it as it proceeded, and knew the construction of it; we gave the contractor the grade of the sewer by driving a peg down into the soil every fifty feet; sometimes the pegs were driven flush with the ground, and sometimes a little above; * * * these pegs were driven: under the supervision of Mr. Borden, the City Engineer ; we sometimes drove the pegs twenty-five feet apart; the figures were marked on the peg and given to the inspector; with written instructions to the inspector; we gave the inspector the figxires in a book corresponding with the figures on the pegs; those pegs and grade are-made to control the contractor in laying the grade of the sewer that was done in this case; the sewer was laid as deep as was required by the figures on the pegs; I know it was, because we went there every day; I will say that it was within a quarter or an eighth of an inch; I will not say exactly; I know about the man-holes; they were constructed according to the plans and specifications.” He also testified: The sewer, when it was finished, had a regular, continuous grade, and it was all right.” Also : I went there every time Borden went there; and pegs were set along there, and the depth given to the contractor or inspector, and the figures marked on the top of the pegs; * * * Mr. Borden, the City Engineer, brought the profile with him every time he went up there ; I always noticed that he had the plan when he went along there; it was in his office and was for our use; whenever we gave levels we took it. with us ; the plan was there at the time the stakes were set; every time; he had the plan there and compared that with the stakes when he went there; 1 know he did every time.”

Stephen Putnam, a witness called by the relator, testified that he was an inspector “ appointed to inspect this sewer by the City of Syracuse, and acted as such inspector during its entire construction ; I directed the contractor in the construction of it, and gave him the grades; I gave Mr. Ready every grade from first to last; I gave-him the grade as established by the pegs driven by Mr. Borden, and according to the directions given to me by Mr. Borden; * * * it was built according to grade; * * * he built it just to the grade Borden gave him.” At no point was it built above the grade given to him by the witness. He also testified: “ All the pegs were set by the engineer, and he made the marks upon the pegs; * ' * * the grade was given by Mr. Borden upon each one of the pegs; the sewer was built, excavated according to the figures given on the pegs; * * * whenever the contractor built the sewer above the grade, as given to me by the engineer, I made him take it up and rebuild it on the grade; * * * Beady always put the grade of the sewer where I told him to put it; he followed my directions at all times.”

Jerry Reilly was called as a witness for the relator, and gave evidence strongly tending to support the statements made by the inspector. The relator testified that the engineer “drove those pegs; he marked the depth I should go; told me to go and build it according to them pegs; * * * as the work progressed he continued to give me pegs; I constructed and built the sewer on the grade given on the pegs in every instance.”

By the Court — “ He may say he did it according to the measurements given by the engineer.”

Other evidence was given tending to show that the sewer was constructed, in respect t© its location and grade, by the relator under the supervision of and in accordance with tlfe directions of the city through its inspector and its engineer. And evidence was given tending to show that the city had knowledge of the location and grade of the sewer before it accepted the same and took possession of it and appropriated it to its use, and before it initiated the proceedings to assess the parties liable to pay for its construction. "While, on the other hand, there was some evidence given tending to show that the sewer was not in all respects in accordance with the contract and specifications; that there were some defects and imperfections found therein by actual measurements taken in August, 1890.

When Dillon v. The City of Syracuse (29 N. Y. St. Rep., 912) was before us a similar contract was under consideration. In the course of the opinion in that case we had occasion to say: “ The parties had a right to agree to be bound by the return of the engineer. -Such a provision is obligatory. (President, etc., D. and H. Canal Co. v. Pa. Coal Co., 50 N. Y., 264, and cases cited.) By the fair construction of the contract in question, it must, I think, be held that the return of the engineer was conclusive on the contractors as to the material furnished or work done. * * * It is quite apparent that nothing was to be left open for litigation under the contract, and that the return or final account of the engineer was to include and represent and adjust all the claims of the contractors. This was to be verified and presented to the common council. They were to review, and, if satisfactory, approve; and thereupon the contractors shall be entitled to receive the amount due on said final account in full settlement of this contract.’ ” Since our decision the Court of Appeals have decided Brady v. The Mayor (44 N. Y. St. Rep., 613; S. C., 30 N. E. Rep., 757), which approves of the principles contained in our decision in the Dillon case. In the Brady case “ the contract required the entire work to be completed ‘ to the satisfaction of the commissioner of public works, and in substantial accordance with the specifications here annexed, and the plan therein referred to.’ No fraud was charged, (and it was) held the contractor was entitled to recover the sum certified, with interest; ” and it was further held: "Where the grades were given by the surveyor or his assistant; examination made after the excavation was completed 'and before filling in was done; the filling subsequently made to grade, and the work accepted, if the grade was mistakenly given to the contractor by the surveyor and the work done in conformity therewith, and certificates of completion afterwards given, the defendant cannot thereafter refuse to pay because as the result of a misdirection by its officers, the specifications had not been literally complied with.” In the course of the opinion delivered in the Brady case it was said : “ The defendant distinctly provided in its contract that its surveyor should be one of the officers to represent its interest in the execution of the contract, and that his certificate that the work had been completed should be essential to the right of the contractor to demand compensation for his work. Not only does it appear that the grades were furnished by the surveyor or his assistant, but it also appeal’s that he subsequently certified to the completion of the work as provided by the contract. That the contractor was at liberty to follow the directions of the officers whom the defendant had stipulated to represent it and speak for it in the execution of the contract is manifest not only from the provisions of the contract already referred to, but also from two others, to which-allusion may be briefly made. * * * So, if the grade should be mistakenly given to the contractor by the surveyor and the work should be done in conformity therewith, and certificates of completion afterwards given, the defendant could not thereafter object that the plaintiff should not be compensated because of the result of a misdirection by its officers, the specifications had not been literally complied with.” (See, also, Mulholland v. The Mayor, 113 N. Y., 631.)

"When the Brady case was before the General Term of the Superior Court (32 N. Y. St. Rep., 102), it was said, in the opinion delivered, “ The various officers of the city who had signed certificates testifying to the sufficient completion of the work by the contractor, Brady, must be regarded as representing the city, and in the absence of any evidence of fraud their deliberate certificate must be regarded as binding on the city. (Mulholland v. The Mayor, 113 N. Y., 632; People v. Stephens, 71 id., 550.) The acceptance of the work of itself by the city without objection, and the application of the work when accepted to public use, are strong evidence that the contract has been practically and sufficiently carried out. (Kingsley v. The City of Brooklyn, 78 N. Y., 200; Smith v. Alker, 102 id., 87.)” In the course of the opinion delivered by the trial judge, reference is made to the case of Bond et al. v. Mayor of the City of Newark (19 N. J. Eq., 376); that was a bill in equity to restrain the defendants from collecting an assessment, and after a statement by the Chancellor of the facts in respect to the case, he intimated that there was a legal fraud in the case; however, in that case he did not sét the assessment aside, or deny the-contractor any remedy; on the contrary, he said: “The only remedy is to make such deduction from the price as justice requires,” and he concluded his opinion by declaring that a reference should be had to a master to repork “ what would have been the additional cost to O’Connor (the contractor), if, at the time this work was done, he had substantially, and fully, complied with every express requisition of his contract.” We think that case is not an authority warranting entire disregard of the certificate, and the acts of the city adopting the improvements. (Peterson v. The Mayor, 17 N. Y., 153.) It seems that some $1,500 of money has come to the hands of the treasurer by the voluntary payment to him by some of the parties assessed for the improvement. It is not apparent that the treasurer or the city can withhold the money thus paid for the purpose of satisfying the demands of the relator. The common council, in effect, approved of the return of the engineer, and it has never rescinded that action. (The People ex rel. Fiedler v. Mead, 21 N. Y., 114; Ross v. Curtiss, 31 id., 606.) In delivering the opinion in First National Bank v. Wheeler (72 N. Y., 206), Andrews, J., said i But so far as the fund in the hand of the defendant is concerned, it has been raised through the machinery provided by the act; the. commissioners reported to the supervisors; the supervisors levied the tax; the collector collected it and paid it to the defendants, and this has all been done with the purpose, from the outset, of paying-the interest on the bonds. The town, at this stage of the proceeding, cannot intervene to arrest the disposition of the fund, and divert, it from the purpose intended. The town does not own it; it has no-right to its custody, and could not apply it to any town purpose if it had possession of it.”

The relator asts to have the defendants continue to discharge their ministerial duties so that the relator may receive the moneys-due to him in virtue of his contract with the city under the statute relating thereto.

The foregoing views, if adopted, lead to a new trial.

Martin and Merwin, JJ., concurred.

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


author: Hardin, P. J,:

text:
    THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. SARAH E. DRAKE, Appellant.

      Crimes — when evidence of other like crimes of the accused is inadmissible — specific acts are not competent to impeach character.

    Sarah E. Drake was convicted of the crime of assault in the third degree, the complainant, O. jVL Dickinson, alleging that Drake pointed a loaded revolver at him, which she denied. In the Court of Sessions evidence was admitted tending to show that at various times, extending over several years, Drake had had a revolver, and had shot at, or had threatened to shoot, different persons. None of these alleged assaults were, however, in any manner connected with the crime in question.

      Held, that the admission of this evidence was improper.
    That the effect of the evidence was to present for the consideration of the jury other crimes of the accused, as to the commission of which she was not on trial.
    That the evidence was not admissible to impeach the character of the accused, since independent and specific acts are not competent for such a purpose.
    That as the question of the guilt of the accused was a close one, the admission of this testimony could not have been otherwise than prejudicial to her.
    Appeal by the defendant Sarah E. Drake from a judgment of the Court of Sessions of Broome county, rendered on the 17th day of October, 1891, convicting her of the crime of assault in the third degree; and also from an order, entered in the office of the clerk of the county of Broome on the 19th day of October, 1891, denying a. motion for a new trial.
    The people gave evidence upon the trial tending to establish the crime alleged in the indictment. Charles M. Dickinson testified that Sarah E. Drake threatened him and pointed a loaded revolver at him. Thereupon the defendant was sworn as a witness and denied the essential parts of the testimony given by the complainant, and denied the threats testified to by the complainant, and testified r “ I never uttered such a word in my life, ‘that if you don’t give me the farm I intend to have your heart’s blood; ’ and I never used anything like it; there was nothing of the kind occurred between us; he has told a falsehood when he tells any such thing as that; at that interview I didn’t use any such language as that; I never used it in my life to anyone; to him or anyone else j * * * I never' had a pistol when X was up in the woods in my pocket; I never had a pistol in my pocket; I don’t carry any at all for nothing; I have not had in my possession within the last year or eighteen months a revolver; Mr. Dickinson is mistaken when he says I had a pistol in my pocket in the woods; I did not have such a revolver, jfistol or firearm; I never went armed in my life; * * * I did not have in my possession a firearm, revolver or pistol; I had my fan; * * * that day that I met Mr. Dickinson on the • walk I had that fan with me; I did not have my shawl on my arm that day; I did not take out a revolver and point at him; I did not point a loaded revolver; I didn’t have any shawl and no revolver that day; I did not take a revolver from under my shawl and point it at him; what I had in my hand was that rubber cloak and that fan; I did not say to him ‘Now I am going to kill you;’ I did not use that language to Mr. Dickinson, or anything like it; I made no threats on his life that day or at any other time.”
    She was asked on her cross-examination if she ever carried a pistol and her answer was “No.” She was asked if, about the month of J une, she “ threatened to shoot Johnny Fee with a pistol or revolver ? ” and upon that questión being objected to, the court allowed, over an objection and exception, the witness to answer the following question: “ Q. Did you not in about the month of J une or July this past summer, 1891, have in your possession a revolver or pistol ? ” She answered: “ I did not.” She was also asked : “ Q. Did you not draw a pistol and threaten to shoot James Murphy sometime during the past year?” The question was objected to; an exception was taken, and the witness answered: “ I did not.” She was also asked : “ Q. Did you draw a pistol and threaten to shoot this man Hanyon sometime during this present year?” The question was objected to; an exception was taken, and the witness answered: “ I did not.” She was asked: “'Didn’t you draw a pistol and threaten to shoot Stephen Pettis ? ” Objection and exception taken, and she answered: “I didn’t.” She was asked: “Did you go to-Caleb Gage’s blacksmith shop, in Havrteyton, with a loaded revolver in your hand and threaten to shoot his dog ? ” Hpon objections being taken to the question the court observed: “ I will admit this question as bearing simply upon the fact as to whether she had a pistol in her hand and .possession.” Defendant took an exception to the ruling, and the -witness answered: “I did not.” Then a question was put: “Q. Did you draw a revolver or pistol to shoot A. B. Hayden on your premises or in your barn within three years?” Upon the objections being stated to the question, the court observed: “ I will admit that only as I have before — as merely upon the question as to whether she had a revolver in her possession — simply bearing upon that question.” An exception was taken, and the witness answered: “ I did not.” She was also asked : “ Q. Did you not about three years ago meet John Giblin and his hired man Murphy in Hawleyton and draw a pistol and threaten to shoot him, John Giblin?” Upon objections being stated to the question, the court observed : “Admitted upon the question as to whether she had a pistol in her possession at that time only.” An exception was taken by the defendant, and she answered: “ I did not.”
    By way of reply to the defendant’s evidence, the People called Caleb Gage and put to him the following question: “ Q. Did you remember an occasion of her going past' your shop and having a revolver in her hand ? ” The witness answered: “ I do.” “ Q. Threatening to shoot your dog ? ” “A. Yes, sir.” “ Q. State, if you can, what it was, and when it was?” This was objected to, and the court observed : “ You may ask the witness the question that you put to Mrs. Drake.” Defendant took an exception. “A. That was some five or six years ago ; I could give the exact time.” It was again objected to and overruled, and an exception taken by the defendant, and the court observed: “ It is distinctly understood that this evidence is admitted only upon the question as to whether this defendant ever had a pistol in her possession.” “ Q. At that .time did she have a pistol in her hand and threaten to shoot your dog ? ” Objections were again stated, and the court observed: “The objection is overruled within the ruling already laid down by the court.” An exception was taken, and the witness answered: “ She did.”
    Peter Yosburgh was called as a witness for the people, and he was asked: “ Q. State whether on that occasion Mrs. Drake had a pistol and threatened to shoot his dog ? ” Objections were taken, and an exception, and the witness answered : “Yes, sir; she did.” John Giblin was called for the People and testified: “ Q. Did Mm. Drake about three years ago meet you and your hired man Murphy in Hawleyton and draw a pistol and threaten to shoot you ? ” Objections were stated, and exception taken, and the witness allowed to answer : “ It is a mistake ; there is no such talk.” “ Q. I refer to a conversation at lier house, not in the streets of Hawleyton, but in her house at Hawleyton ? A. That was in the summer of 1885 or 1886.” This was objected to by the defendant on the further ground “ that her attention was not called to the time and place.”
    Julia Stewart was called as a witness for the people and ashed: “ Q. I will repeat the question — Did you in May last see Mrs. Drake and John Fee on Pennsylvania avenue in this city, and at that time did you see Mrs. Drake draw a revolver and threaten to shoot John Fee ? ” Objections were stated and overruled, and the defendant took an exception, and the witness answered: “ I saw her draw a revolver. Q. Threaten to shoot him? A. Whether she said she would shoot him or not I couldn’t say, but she said she would fix him. Q. You saw her draw a revolver and make that remark ? A. Yes, sir.”
    Laura Thiele was called by the people, and the following question was put to her: “ Q. At this time in May, did you see Mrs. Drake, on Pennsylvania avenue, in this city, draw a revolver or pistol and threaten to shoot John Fee?” Objected to. Objection overruled and the defendant answered: “ I saw her draw a revolver and say she would fix him; I wouldn’t say positively she said she would shoot him; it is so long ago I have forgotten, but she said she would fix him.”
    William Hayden testified in behalf of the people; he was asked: “ Q. Did Mrs. Drake, at that time, draw a revolver and threaten to shoot you ? ” Objections were stated. Overruled. An exception was taken, and the witness answered, “ Yes, sir.” “ Q.. How did she have the revolver ? ” “A. She had it right in her hand; j>ointed it towards me.”
    A. B. Hayden was sworn for the people, and testified to having a conversation with the defendant in 1887, and the following question was asked: “ Q. In that conversation, did Mrs. Drake draw a revolver or pistol and threaten to put a hole through you if you did certain things ? ” This question was objected to on the grounds before stated, and on “ the ground that her attention was not called to any such time.” The objection was overruled. The defendant took an exception, and the witness answered, “Yes, sir. Q. Was the pistol fired on that occasion ? A. Shot off as I went out of the barn.”

      James II. Dunn was called as a witness for the people, and proved by him that he called on Mrs. Drake about six years before, to settle an account; and then put to him the question: “ Q. Did Mrs. Drake, in that conversation, take a pistol or revolver from a drawer ? ” Objections were stated. An exception taken, and the court observed : “ It is only received on the question as to whether she had a pistol in her possession.” The witness answered: “ That is what she called it. Q. Did she take this pistol in her hands and say to you that is the way she pays her debts ? A. She said that is the way she would pay me; I don’t know whether she paid others that way or not.”

      A. A. White, for the appellant.

      W. D. Painter, district attorney, for the respondent.
   Hardin, P. J,:

In the People v. Gibbs (93 N. Y., 470), it was held, viz.: “ Upon trial of an indictment for assault, with intent to kill, evidence showing the commission by the prisoner of another similar assault, at a different time and place and upon a different person, is not competent.” In the course of the opinion delivered in that case, it was said: ‘‘ The effect of the evidence was to present to the jury testimony relating to another assault and to an entirely different transaction, which might well tend to prejudice their minds against the defendant in reference to the charge for which he was on trial.”

In People v. Sharp (107 N. Y., 467), Peckham, J., said: “ The general rule is that when a man is put upon trial for one offense, he is to be convicted, if at all, by evidence which shows that he is guilty of that offense alone, and that, under ordinary circumstances, proof of his guilt of one or of a score of other offenses in his lifetime is wholly excluded.”

In Commonwealth v. Jackson (132 Mass., 16), in the course of the opinion it was said: -‘Evidence of the commission of other crimes by a defendant may deeply prejudice him with the jury, while it does not legally bear upon his case. It certainly would not be competent, in order to show the intent with which one entered a house or took an article of personal property, to prove that he had committed a burglary or larceny at another time. * * * Such evidence compels the defendant to meet charges of which the indictment gives him no information, confuses him in his defense, raises a variety of issues, and thus diverts the attention of the jury from the one immediately before it, and by showing the defendant to have been a knave on other occasions creates a prejudice which may cause injustice to be done him.”

In People v. Wood (3 Parker’s Crim. Rep., 684) it was said: “ It is quite true that the prosecution cannot prove the commission of another and distinct felony by the prisoner for the purpose of establishing the fact directly that he committed the one for which he is then on trial, or for the purpose of raising any direct inference in the affirmative of the principal issue. The civil law allows such evidence. * * * But the common law, with more humanity and better logic, forbids such evidence in support of the principal issue, and limits its admission to minor issues, such as motive and scienter, and even then confines it to cases where there is some apparent connection or relation between the imputed motive or guilty knowledge and the felony proposed to be proved.”

In People v. Greenwall (108 N. Y., 296) the defendant was called as a witness in his own behalf, and upon being cross-examined as to his connection with another burglary at the house-of one Mohring, and in the cross-examination as well as in the re-examination, he denied that he had ever entered any man’s house in the nighttime with intent to steal. Subsequently Mohring was called to the stand by the prosecution and permitted to testify, under objection, to evidence showing that the defendant did burglariously enter his house in the night-time. The ruling admitting such evidence was held to be erroneous; and it was also held in that case that the incompetent evidence was damaging in its nature and could not be said to have been harmless, and, therefore, its reception required a reversal. In the course of the opinion in that case it was said: It is never competent upon a criminal trial to show that the defendant was guilty of an independent crime not connected with or leading up to the crime for which he is on trial, except for the purpose of showing motive, interest or guilty knowledge, and this evidence was not proper or competent for that purpose. * * * It is never proper for the purpose of impeaching the character, of a party or a witness, to call witnesses to prove specific acts of dishonesty, immorality or crime.” Under the rulings made by the court, threats made by the defendant upon other occasions to other parties had no such connection with the crime alleged in the indictment as to render them admissible upon the issues before the court; nor can their reception be justified upon the assumption that they tended to impeach the character or standing of the defendant as a witness. Independent and specific acts and deeds of a party are not admissible for the purpose of impeaching a witness. The testimony thus improperly received may have had a potential influence upon the jury. While the testimony offered for the prosecution tended quite strongly to support the allegations in the indictment, the testimony in behalf of the defendant contradicted the evidence of the prosecution and left a close question of fact to be considered by the jury. Under such circumstances we may not say that improper evidence was not prejudicial to the rights of the defendant. (People v. Loftus, decided by this court in November, 1890, as appears in 58 Hun, 606.)

The foregoing views lead to a reversal.

Martin and Merwin, JJ., concurred.

Conviction, order and judgment of the Court of Sessions of Broome county reversed and the clerk directed to enter judgment and remit certified copy thereof with the return and decision of this, court to the Court of Sessions of Broome county, pursuant to sections 547 and 548 of the Code of Criminal Procedure.