text:
    Gurdon S. Fanning, Respondent, v. D. M. Osborne et al., Appellants.
    The right to construct and operate a street railway is a franchise which must have its source in the sovereign power.
    The legislative power over the subject has this limitation ; the franchise must be granted for public not for private purposes, or at least the grant must be based upon public considerations.
    The construction and maintenance of a street railway, by any individual or association of individuals, without legislative authority, is a public nuisance and subjects those maintaining it to a private action in favor of any person sustaining special injury therefrom.
    The use of a franchise, granted for public purposes, as a mere cover for a private enterprise, is contrary to public policy.
    A street railroad corporation, after it had abandoned a portion of its road and ceased to use the same, entered into a contract with 0. by the terms of which it granted to him the right to run freight cars over the abandoned portion of its road, “but not so as to interfere with the running of necessary passenger cars ” by the corporation, 0. covenanting to pay the expenses of laying a new track and of keeping the same in repair. The assignees of 0. laid the new track and have since used it •exclusively for running freight cars over it, for the purposes of their private business, to the special injury of plaintiff, who owns a lot adjoining he street upon which the track is laid. In an action to restrain such use of the street, held, that the contract furnished no defense, as it was simply an attempt by the railroad company to transfer to an individual, for the purposes of his private business, its franchise as common carrier over a part of its route ; that such use of the street was a nuisance, and the‘special injury caused thereby to plaintiS authorized the interference ' of equity in his behalf, and this without regard to the question whether he had a title to or interest in the soil of the street.
    As to whether the legislature has power to authorize the construction of a railroad in a street or highway, the fee of which remains in the original owner, as against a purchaser from such owner of a lot abutting on, and by the terms of his deed bounded by the side of the street, without providing for compensation to him, qumre.

    0. was made a party to the action. The wrongful acts charged in the complaint and proved were of those who succeeded to his interests under the contract, and no proof was given of any act done, advised or approved by him. Meld, that a judgment against him was erroneous.

      Manning v. Osborne (34 Hun, 131), reversed as to the individual defendant. p
    (Argued April 36, 1886 ;
    decided June 1, 1886.)
    Appeal from judgment of the General Term of the Supreme Court, in the fifth judicial department, entered upon an order made October 31,1884, which affirmed a judgment in favor of plaintiff, entered upon a decision of the court on trial at Special Term. (Reported below, 84 Hun, 121.)
    This action was brought to restrain defendants from operating a railroad in Garden street, in the city of Auburn.
    A railroad track was originally laid iri said street by the East Genesee Street and Seward Avenue Railway Company, which was incorporated by chapter 527, Laws of 1871, and was authorized by the common council of said city to lay said track. The use of this portion of its road it however subsequently abandoned. Defendants justified under a contract between defendant, David M. Osborne, and said railroad company, executed May 26, 1873, some time after such abandonment, by which the company agreed to lay a new track, the materials, however, to be furnished and the expense of laying it to be paid by Osborne, who was also to pay all expenses of keeping it in repair. Then followed this clause in the .contract: ‘
    “ Second. Hpon •compliance by the party of the second part (Osborne) with the conditions hereinbefore specified, he and his personal representatives and assigns shall jhave the right at any and all times (but not so as to interfere with the running of the necessary passenger cars, and subject to the rules and regulations of the railroad company) to traverse and run upon and along said took with freight cars, loaded or unloaded, such as shall for the time being be used upon such railroad as shall be connected with or run adjacent to such track, and to carry therein such freight as he or they may desire, without payment of any trackage or other charges therefor, or for the right of so doing, other than as above expressed.”
    The further facts are stated in the opinion.

      Rollin Tracy, H. V. Howland and David Wright for appellants.
    The court erred in proceeding with the cause without first making the East Genesee Street and Seward Avenue Railway Company a party defendant. (Code, §§ 448, 452.) Plaintiff being merely an abutting owner on Garden street had no right to object to its use by defendants. (People v. Kerr, 27 N. Y. 188, 191, 204, 213; Kellinger v. Forty-second Street and Grand Street Ferry R. R. Co., 50 id. 206; Mahady v. Bushwick R. R. Co., 91 id. 148; Story v. Elevated R. R. Co., 90 id. 122, 160, 171; B. & O. R. R. Co. v. Fifth Baptist Church, 11 Am. and Eng. R. R. Cases, 15.) The contract made between the East Genesee Street and Seward Avenue Railway Company, of the first part, and David 3VL Osborne acting solely for and on behalf of the firm of D. M. Osborne & Co., of the second part, was a good and valid contract. (2 Bl. Com. 37; 2 Kent’s Com. 458; Rogers v. Aikin, 9 Am. and Eng. R. R. Cases, 201; Lansing v. Smith, 8 Cow. 146, 155.) To maintain an action on the case for a nuisance, the plaintiff must show injury to himself distinct from that which he suffers with the rest of the community. (2 Kent’s Com. 340, n. 4; Seeley v. Bishop, 19 Conn. 128; Smith v. Lockwood, 13 Barb. 209; Lansing v. Smith, 8 Cow. 146 ; affirmed 4 Wend. 9; Roosevelt v. Draper, 23 id. 318; 1 Sandf. 1.)

      S. E. Payne for respondent.
    Plaintiff had a right to the uninterrupted use of the street adjoining his premises for ingress and egress, which right could not be taken without compensation by the railroad company or the State. (Pratt v. Buffalo City R. Co., 19 Hun, 30; White's Bk. v. Nichols, 64 N. Y. 65 ; Story v. N. Y. El. R. R. Co., 90 id. 122; Mahady v. Bushwick R. R. Co., 91 id. 148, 153.) This right having never been taken away by constitutional means, the defendants were trespassers. (Mahady v. Bushwick R. R. Co., 91 N. Y. 153; Abbott v. Johnstown, R. R. Co., 80 id. 29, 30; Woodruff v. Erie R. Co., 23 Hun, 250.)
   Andrews, J.

The defendant, D. M. Osborne & Co., a manufacturing corporation, from 1875 to the commencement of this action, maintained and operated a street railroad in the city of Auburn, from a point near the Hew York Central railroad, and thence through Garden and other streets in said city to its manufacturing establishment on Mechanic street, exclusively for the transportation of machines manufactured by the corporation and for other freighting purposes connected with its business, by means of ordinary freight cars owned by the corporation, which from 1875 to 1879 were drawn by horses and afterward by a dummy engine also provided and owned by it. The D. M. Osborne & Co. corporation succeeded to the business of the firm of D. M. Osborne & Co. in 1875. The firm of D. M. Osborne & Co., under a contract entered into between the individual defendant, David M. Osborne, with the East Genesee Street and Seward Avenue railway, a street railway corporation organized in 1871, which contract is dated May 26, 1873, reconstructed the railroad track between the points mentioned and relaid it with T rails, and from 1873 to 1875 .the firm used the railroad for the same purposes for which it was subsequently used by the corporation defendant. It is, upon the evidence, indisputable that "the railroad as used from 1873, had no semblance of a public enterprise. It was the private road of D. M. Osborne & Co. and was not used by them as common carriers of freight or passengers.

The East Genesee Street and Seward Avenue railway in 1871, under its charter (Laws of 1871, chap. 527), having obtained the consent of the local authorities as required by the act, constructed its main line, about two miles in length, and also a branch road laid with strap or flat rail on the line now.operated by D. M. Osborne & Co. But after a few months it abandoned the use of the branch for the carriage of freight and passengers, and it remained unused until the firm of D. M. Osborne & Go. reconstructed it under the agreement of May 29, 1873. The plaintiff is the owner of premises on Garden street, by deed dated July 21, 1868, which bounds the granted premises on the north by the “ south line of Garden street.” The plaintiff’s title is derived through intermediate grantors from the original owners of great lot 47, which lot includes plaintiff’s premises and all of Garden street, with other lands. Garden street has been used as a public highway for more than fifty years. It is described in a deed from one Dill, the original owner of lot 47, dated September 23, 1811, as the “road leading to Jehuel Clark’s mill.” It is not claimed that the public or the city of Auburn owns the fee of the street. The presumption, in the absence of evidence, is, that the public has acquired an easement only for highway uses in tho land embraced in the street, and that the fee remains in the original owner. It is proved by the evidence, and it is found by the trial judge that the use of the railroad through Garden street has greatly obstructed the street, and rendered it unsafe and dangerous for teams and vehicles of the plaintiff and others using the same, and has impaired and injured plaintiff’s right and interest in and to the street, and' greatly injured his business and depreciated the value of his property. The facts found show a special injury sustained by the plaintiff from the operation of the rail road, which justifies the interference of equity, unless it is made to appear that the defendant corporation ñas a legal right to maintain a railroad on Garden street for its private convenience.

We deem it unnecessary in this case to determine whether the authority conferred on the East Genesee Street and Seward Avenue Bail way Company by its original charter, or by act chapter 444 of the Laws of 1879, amending its charter so as to permit the company to operate the branch road in question by steam power, could be exercised by the company itself, except upon the condition of making compensation to the owners of property abutting on the street for any injury thereto. The act does not require compensation to be made, and the determination of that question would require an examination of the power of the legislature to authorize the construction of a horse or steam surface street railroad in a street or highway, the fee of which remained in the original owner, as against a purchaser from such owner of a lot abutting on the street or highway, and whose premises by the terms of his deed are hounded thereon. The case of Williams v. N. Y. Cent. R. R. Co (16 N. Y. 97), established the principle that a dedication of land for street purposes does not authorize the legislature to permit the constmction of a steam railroad thereon, without making compensation to the owner of the fee, on the ground that such use imposes a burden upon the land, not contemplated by the original dedication. The plaintiff is not the owner of the fee of Garden street in front of his premises. But it is claimed that he acquired by his conveyance from Dill a private easement therein, superadded to his right in common with the public, to the use of the street, which private easement, it is insisted, is a property right which is invaded by the construction and maintenance of a railroad in the street, and that the franchise to maintain and operate a railroad thereon, could not be granted, except on the condition of making compensation. It may be true that the plaintiff acquired by his conveyance, as against his remote grantor, the owner of the fee, a right of way appurtenant to his lot, over the land embraced in Garden street, which would survive the discontinuance of Garden street as a public highway. Whether, assuming this to be so, the construction and operation of a street railroad in the street, would be a taking of the plaintiff’s property, for which, under the Constitution, he would be entitled to compensation, or whether he stands in the shoes of his grantor, Dill, and may insist that such a use of the street is not within the purpose of the original dedication, are questions winch it is unnecessary m this case to determine for reasons which will now be stated.

The right to construct and operate a street railway is a franchise which must have its source in the sovereign power. The legislative pow.er over the subject is also subject to the limitation that the franchise must be granted for public, and not for private purposes, or at least public considerations must enter into every valid grant of a right to appropriate a public street for railroad uses. The construction and maintenance of a street railway by any individual, or association of individuals, without legislative authority, would constitute a public nuisance, and subject the persons maintaining it, not only to indictment, but also to a private action in favor of any person sustaining special injury. It is not pretended that D. M. Osborne & Co. is a railroad corporation, or that it is operating the railroad in question under any specific legislative authority. It bases its right solely on the contract of May 26, 1873, between D. M. Osborne and the East Qenesee Street and Seward Avenue Railway Company, and upon the claim that it has succeeded to the rights of D. M. Osborne thereunder. We are of opinion that the contract furnishes no defense to this action. It was a scarcely undisguised attempt by the railroad company to transfer to an individual, or to the firm for which he was acting, its franchise as common carrier, over the part of its route specified in the contract, with a view and for the purpose of enabling the grantee to operate the road thereon, as private property, and exclusively for the purposes of his private business. It is true that the contract does not purport in terms to vest in D. M. Osborne an exclusive right to use the branch. It provides that the right granted shall be exercised so as not to interferp with the running of necessary passenger cars, and in one of its clauses, recognizes a continuing right in the company to run freight cars on the track. But in fact, the company, before the contract was made, had abandoned the use of this part of its road, and has never since used it, but it has been exclusively used and appropriated for the business of D. M. Osborne & Go. By the terms of the contract the grantee was exempted from the payment to the railroad company of any charge for trackage or other compensation for the use of the road. The firm of D. M. Osborne & Co. reconstructed the road, and relaid the track with heavy rail, and since the date of the contract up to 1875, it paid the whole expense of maintenance, and since that year the expense has been borne by the corporation defendant. The facts show that the railroad company prior to May 26, ,1873, ceased to operate the branch, and that since that time, it has.been operated as the private road, first, of the firm of D. M. Osborne & Co., and afterward, of the corporation of D. M. Osborne & Co., under color of a contract with the railroad company. We think the contract was aroid as against public policy, and assuming that the corporation defendant has succeeded to all the rights of D. M. Osborne, or the firm of D. M. Osborne & Co., nevertheless the contract constitutes no defense to the action. It is plainly contrary to public policy that a franchise granted for public purposes should be used as a mere cover for a private enterprise. The defendant corporation is in the situation of assuming to maintain and operate0 a street railroad without legal authority, to the injury of the plaintiff, and the judgment below, enjoining and restraining such use, was proper.

The point that the East Genesee Street and Seward Avenue Railway Company is a necessary party is not well founded. That company has no interest in this litigation. Its rights, if any, are not affected by the judgment. It was divested of its franchise and property, except as to the branch in question, by a sale under foreclosure in 1880, on its insolvency, and as to its naked franchise to operate the branch, which seems not to have been embraced in the purchase, its use was abandoned prior to 1873.

The exception taken by the individual defendant, David M. Osborne, to the judgment against him seems unanswerable. The wrong charged in the complaint is confined to the acts of the defendants" since April 29, 1875, the date of the incorporation of D. M. Osborne & Co. It is averred in general terms that the defendants wrongfully maintained the road, etc. There is no proof showing any act done by the individual defendant since that time. It appears that he was president of the corporation of D. M. Osborne & Co., bnt it is not shown that he advised or approved, either in his individual capacity or as trustee, of the acts of the corporation. The point that he was not shown to have personally intermeddled in the matter, was specifically taken, and, upon the case as presented, we think the j udgment against him individually is erroneous.

The judgment should, therefore, be reversed as to him and affirmed as to the corporation.

All concur.

Judgment accordingly.


source: Caselaw Access Project

author: Miller, J.

license: Public Domain

text:
    Augustus R. Griffin, as Receiver, etc., Respondent, v. The Long Island Railroad Company, Appellant.
    In an action brought by plaintiff, as receiver of an insolvent railroad corporation, to recover for the use of certain of its rolling stock, the complaint alleged the appointment of plaintiff as receiver in sequestration proceedings by petition and motion under the Revised Statutes, also, his appointment in an action of foreclosure. The defendant claimed the general appointment to be invalid, as such an appointment could only be made in an action (Code of Civ. Pro., §§ 1784,1810), and that as receiver in the foreclosure suit plaintiff acquired no right to the cause of action, which accrued prior to his appointment. It appeared that a prior action was brought by plaintiff for trespass committed by defendant, upon the property of the corporation, before either of plaintiff's appointments, the complaint in which action contained the same averments as to plaintiff’s appointments, and wherein it was decided that both were valid. Held, that the former judgment was a bar to the defense; also, that the effect of such judgment as a bar was not changed by the fact that its amount was too small to entitle defendant to appeal to this court from a judgment of the General Term affirming the same.
    (Argued April 33, 1886 ;
    decided June 1, 1886.)
    Appeal from judgment of the General Term of the Supreme Court, in the second judicial department, entered upon an order made December 9,1886, which affirmed a judgment in favor of plaintiff entered upon a verdict and affirmed an order denying a motion for a new trial.
    This action was brought by plaintiff, as receiver of the Southern Hempstead Branch Bailroad Company, to recover the value of the use by defendant of certain property of said railroad corporation.
    The complaint alleged plaintiff’s appointment as general receiver in sequestration proceedings by petition and motion under the Revised Statutes, also his appointment as receiver in an action for foreclosure of a mortgage executed by said company. Plaintiff proved the use, prior to his appointment by defendant, with the consent of said company, of certain passenger cars belonging to it. The defense claimed plaintiff’s appointment in the sequestration proceedings to be. invalid, as such an appointment could only be made in and by action under the Code of Civil Procedure, and that plaintiff as receiver appointed in the foreclosure suit had no title to the cause. of action and no right to bring the action. It appeared upon the trial that plaintiff also brought another action in the Supreme Court against defendant for trespasses alleged to have been committed by it upon the property of the insolvent corporation prior to either of his appointments. The complaint in that action set forth said appointments precisely as in the complaint in this action. These averments were put in issue by the answer, and the court found that plaintiff “ was duly appointed general receiver,” and also duly appointed receiver in the foreclosure suit, and that as receiver he was entitled to recover. The amount of the recovery was $188.30. That judgment, was on appeal affirmed by the General Term.
    Further facts appear in the opinion.

      Fdvxwd F. Sprague for appellant.
    The plaintiff cannot recover as receiver in foreclosure, except for the period subsequent to his appointment. (Dean v. Biggs, 25 Hun, 122 ; affirmed, 93 N. Y. 622.) The objection to the validity of the order of sequestration could not have been raised by pleading. (Zabriskie v. Smith, 13 N. Y. 322; Straus v. Tradesmen's Bank, 36 Hun, 453.) The defendant is not estopped from disputing the validity of the order in sequestration by the prior judgment. (Zoeller v. Riley, 100 N. Y. 102, Remington Paper Co. v. O'Dougherty, 81 id. 474; Woodgate v. Fleet, 44 id. 11; People v. Johnson, 38 id. 63 ; Campbell v. Consalus, 25 id. 613 ; Sweet v. Tuttle, 14 id. 465; Palmer v. Hussey, 87 id. 303; Manning v. Monaghan, 23 id. 539 ; Van Pelt v. McGraw, 4 id. 110; In re Flushing Avenue, 98 id. 445.) The order appointing plaintiff receiver in sequestration was void. (Code of Civ. Pro., §§ 1784, 1810; Clinch v. S. S. R. R. Co., 1 Hun, 636; McKinney v. Collins, 88 N. Y. 216; McCulloch v. Norwood, 58 id. 562.) The order of sequestration being void, is subject to collateral attack. (Chemung v. Judson, 8 N. Y. 254; Risley v. Phœnix Bk., 83 id. 318; Wright v. Nostrand, 94 id. 31.)

      H. F. Sickels for respondent.
    Defendant is estopped in this action from, questioning the legality of plaintiff’s appointment as general receiver; the whole subject is res adjudicata between these parties by reason of the judgment in action number 2. (Clemens v. Clemens, 37 N. Y. 74; 85 id. 436; 79 id. 634; 58 id. 76; 60 id. 276; 3 Comst. 522; Sheldon v. Edwards, 55 N. Y. 237; 51 How. 241; 22 Wall. 46 ; 3 Denio, 244; 91 U. S. 533 ; Pray v. Hegaman, 98 N. Y. 351; 46 id. 496 ; 9 Wend. 287; 77 N. Y. 76.) As general receiver under the sequestration order plaintiff can recover, because the Hemp-stead Branch road has never appealed from it, but has acquiesced In it, and its regularity cannot be attacked collaterally, the order having been granted by a court of competent jurisdiction. (Bangs v. Duckenfield, 18 N. Y. 592; 74 id. 46; 48 id. 41; Potter v. Merch. Bk. of Albany, 28 id. 641; 1 Hill, 154; 17 Wend. 483.) The stipulation that defendant and its receiver Used the property of the Southern Hempstead Branch railroad by and with the consent and agreement of that company, establishes the relation of landlord and tenant between them, and creates an implied contract or agreement on the part of defendant to pay a reasonable sum for such use and occupation. (59 N. Y. 647; 69 id. 118; Rider v. Union Rub. Co., 28 id. 379; Turner v. Jones, 1 Lans. 147 ; Hill, on Torts, 44; Gilchrist v. Comfort, 26 How. 394.) The court was right in allowing plaintiff to recover in this action the value of the use and occupation of the cars up to the time he demanded their possession. (Johnson v. Meeks, 96 N. Y 93.)
   Miller, J.

It is very clear, we think, that the defendant is estopped from, raising the question in this action' as to the legality of the appointment of the plaintiff as general receiver. The whole subject was presented in a previous action between the same parties and is res adjudieata. In the action referred to the appointment of plaintiff as general receiver was alleged in the complaint and denied by defendant’s answer in precisely the same language as in this action, and the same issue was framed and tried in that case as in the one now presented. It was found by the court in that case that the plaintiff was legally appointed receiver. The judgment based upon the findings in that case was a complete determination of the question now raised, and it is not the subject of review upon this appeal.

The rule is well settled that a former judgment of a court of competent jurisdiction is final and conclusive between the parties, not only as to the matter actually determined, but as to every other matter which the parties might have litigated and have decided as incident to or essentially connected with the subject-matter of the litigation within the purview of the original action, either as matter of claim or of defense. (Pray v. Hegeman, 98 N. Y. 351; Jordan v. Van Epps, 85 id. 427, 436; Smith v. Smith, 79 id. 634; Clemens v. Clemens, 37 id. 59, 74.)

To ascertain what might have been determined in the former action, it is proper to look, beyond what appears on the face of the judgment, to every allegation, which, having been made on one side and denied on the other, was at issue .and determined in the course of the proceedings. (Clemens v. Clemens, supra.) The findings and the judgment must generally show what was determined and they are conclusive on the subject.

In regard to the case now considered the legality of the plaintiff’s appointment was expressly raised by the pleadings, litigated on the trial and determined by the court in a former action. Whether it was rightly or wrongly determined is a question that cannot be raised in this action. Even if the decision was wrong it does not impair the effect of the former judgment as a bar to the right to raise the same question, nor does it change the effect of the judgment because the amount recovered was not sufficient to entitle the plaintiff to appeal, as a matter of right, from the General Term to this court. It might as well be urged that the opposite party would not be bound when the right of appeal existed and the party failed to make the appeal. This rule would be more especially applicable here, as it does not appear that any application was made to the General Term to allow the defendant to appeal, and it, therefore, cannot be said that the defendant might not have obtained the permission to do so had he made an application for that purpose in due season.

Nor can it be said in this case that the question decided in the former action was immaterial to the issue, as it is apparent that the right of the plaintiff to maintain the action depended upon the legality of his appointment as receiver. The claim of the appellant’s counsel, that the determination of the validity of plaintiff’s appointment in sequestration was not necessarily involved in the former action, is not well founded. Although the justice found that the plaintiff was duly appointed receiver in the foreclosure case, he had previously found that prior to the commencement of that action he was appointed receiver in the sequestration proceedings ; that the former action was for trespass upon property of the insolvent corporation committed prior to either of plaintiff’s appointments as receiver. It was not a cause of action that accrued to him as receiver in the foreclosure proceedings, and he could only maintain the action by virtue of his general appointment. That action, therefore, depended in part at least upon the finding as to the validity of the general appointment, and it cannot be rejected as not necessary to sustain the judgment. There is, therefore, no ground for claiming that it rested entirely on the finding of the appointment of a receiver in the foreclosure proceedings.

The judgment was right and shoidd be affirmed.

All concur.

Judgment affirmed.


author: Daftforth, J.

text:
    Teresa H. Hickey, Appellant, v. John H. Morrell, Respondent.
    In an action to recover damages for alleged false representations, by which plaintiff was induced to deliver to defendant certain property, to be stored in the warehouse of the latter, in the city of New York, it appeared that the representations complained of were contained in a circular issued by defendant recommending his warehouse for storage purposes. The circular stated that in the erection of the warehouse “ no expense has been spared in supplying * * * protection against the spread of fire, the exterior being fire-proof, and the interior being divided by heavy brick walls, iron doors and railngs.” By the act of 1874 (§ 5, chap. 547, Laws of 1874) relating to buildings in said city, it is provided that buildings like the defendant’s warehouse “ shall have doors, blinds and shutters made of fire-proof metal, on every window and opening above the first story.” It appeared on the trial that the window frames of the warehouse were of wood, and there were no outside shutters to the windows. The wooden window frames caught fire from a fire which originated in another building, by which the warehouse and plaintiff's property t herein were destroyed. Expert testimony was given to the effect that a building so constructed could not be considered fire-proof, and that it was practicable to construct a storage warehouse which would be fire-proof. Plaintiff was nonsuited, on the ground that the statement as to the character of the exterior of the building was a mere statement of opinion. Held error; that the statement was of a fact, not an opinion; that it necessarily referred to the quality of the material of which the exterior was constructed or which formed its exposed surface, and excluded the idea that it was of wood.

      Walker v. 'Milner (4E. & E. 745), Prideaux v. Bunnett (1 O. B. [N. S.l 613), Jendwine v. Slade (2 Esp. 572), Q-ordon v. Butler (105 U. S. 553), distinguished.

      It seems the rule that no man is liable for the expression of his opinion is true only when the opinion stands by itself, and is intended to be taken as distinct from any thing else.
    (Argued April 26, 1886;
    decided June 1, 1886.)
    Appeal from judgment of the General Term of the Court of Common Pleas in and for the city and county of Hew York, entered upon an order made June 30, 1884, which affirmed a judgment in favor of defendant, entered upon an order dismissing the complaint on trial. (Reported below, 12 Daly, 482.)
    The nature of the action and the material facts are stated in the opinion.

      Matthew Hale for appellant.
    When, from the circumstances shown, inferences are to he drawn which are not certain and incontrovertible, and may be differently made by different minds, it is for the jury to make them. In such case it is error to withdraw the case from the jury. (Powell v. Powell, 71 N. Y. 71; Hart v. H. R. Bridge Co., 80 id. 622; Ochsenbein v. Shapley, 85 id. 215, 224 ; Cook v. N. Y. C. R. R. Co., 1 Abb. Dec. 432; Morrell v. Morrell, 17 Hun, 324; Fire Dept. v. Harrison, 2 Hilt. 455.) A case of deceit was fully proved. The representations were of fact. (Simar v. Canaday, 53 N. Y. 289, 306; Chrysler v. Canaday, 90 id. 272; Hubbard v. Briggs, 31 id. 578; Cole v. Cassidy, 138 Mass. 437; Taylor v. Guest, 58 N. Y. 262; Indianapolis R. Co. v. Tyng, 63 id. 653; Drake v. Grant, 36 Hun, 464; Yates v. Alden, 31 Barb. 172.) Defendant must be presumed to know the condition of his own building, of which he had charge himself. He is also presumed to know the law which required the windows above the first story to be protected by doors, blinds or shutters of some fire-proof metal. (1 Kent’s Com. 460; Bennett v. Judson, 21 N. Y. 238; Ind., etc., R. R. Co. v. Tyng, 2 Hun, 318, 321, 322 ; affirmed, 63 N. Y. 653, 655; Bennett v. Judson, id. 655; 2 Hun, 320; Meyer v. Amidon, 23 id. 553; Yates v. Alden, 41 Barb. 172, 180, 181; Litchfield v. Hutchinson, 117 Mass. 195, 197-8.) The representations were made with intent to deceive. (Rohrschneider v. Knickerbocker L. I. Co., 76 N. Y. 216.) The nonsuit can- ' not be sustained upon the ground that the plaintiff did not avail herself of the means of knowledge which were at hand and equally available to both parties. (Cooley on Torts, 490 ; Mead v. Bunn, 32 N. Y. 275; Albany City Sav'g Inst. v. Burdick, 87 id. 40, 49.) Every person violating an express statute is a wrong-doer, and every person injured by the act or omission which constitutes the violation is entitled to a civil remedy. (Laws of 1871, chap. 742, § 8 ; Juter v. N. Y. and H. R. R. Co., 2 Abb. Dec. 458, 464; Beisegel v. N. Y. C. R. R. Co., 14 Abb. [N. S.] 29 ; Marrotte v D. & H. C. Co., 64 N. Y. 524, 532.) The court is bound to take judicial notice of public statutes. (Burnham v. Acton, 7 Rob. 395, 398.) It was the duty of the court below to give tlie plaintiff the benefit of any cause of action established by the evidence, and this court on appeal will consider the case upon the cause of action disclosed by the evidence, and disregard any objection to the sufficiency of the pleadings not made below. (Knapp v. Simon, 96 N. Y. 284, 392.) The court erred in sustaining the objection to the question whether the plaintiff would have stored her property with defendant if she had not believed the statement in the circular. (Bruce v. Burr, 67 N. Y. 237, 241; Hardt v. Shulting, 13 Hun, 537; Thurston v. Cornell, 38 N. Y. 281; McKown v. Hunter, 80 id. 625.)

      John M. Bowers for respondent.
    17o man is liable for the expression of his opinion or judgment. (Kerr on Frauds, 83 ; Smith v. Countryman, 30 N. Y. 681 ; Kent’s Com. 486 ; Walker v. Milner, 4 F. & F. 745; Prideaux v. Bennett, 1 C. B. [N. S.] 613 ; Jendwine v. Slade, 2 Esp. N. P. 572; Power v. Burnham, 4 Ad. &El. 476, 477; Taylor v. Bullin, 5 Exch. 779; Gordon v. Butler, 105 U. S. 553; Holbrook v. Connor, 60 Me. 578; Kernodle v. Hunt, 4 Black, 57; Miller v. Moung, 33 Ill. 354.) To maintain this action plaintiff had to show: A false statement as to a fact; that it was made with knowledge as to its falseness; that the statement was made with intent to deceive; that the plaintiff acted in reliance upon such statement; that the representation was made concerning a fact not open to the perception. of a person of ordinary intelligence, or concerning a fact as to which the two parties had not equal knowledge or equal means of acquiring information. (Marsh v. Falker, 40 N. Y. 562, 567, 574; Haycraft v. Creasy, 2 East, 92.) The plaintiff must have stored her goods upon the reliance of the statement made, in order to be allowed any standing in court. (Taylor v. Guest, 58 N. Y. 262.) Where a matter is equally open to the inspection of both parties, the defendant is not to be held liable for any representations he makes as to matters open to the perception of an ordinary individual. (Long v. Warren, 68 N. Y. 426, 481 ; Slaughters
      v. Gerson, 13 Wall. 379, 383; Vanderwalker v. Osmer, 65 Barb. 556; Port v. Williams, § Ind. 219; Van Epps v. Harrison, 5 Hill, 63; Rockefellow v. Baker, 5 Wright, 41; 1 Penn. St. 319 ; Hecker's Warrantee Cases, 236; Knowlton v. Atl. & R. R. Co.,, 38 Me. 55.) The defendant was a warehouseman, and in receiving the goods he received them on a contract for mutual benefit, and was liable only to ordinary diligence. He was bound only for ordinary care, was not liable for loss arising from accident when he was not in default, and he is not in default when he exercises common diligence. (2 Pars, on Gont. 617; 2 Kent’s Corn. 566; Jones on Bailm., § 7; Angelí on Car., § 45 ; Edw. on Bailm., § 284; Platt v. Hibbard, 7 Cow. 497; Knapp v. Curtis, 9 Wend. 60.) Before the evidence is left to the jury, the court is to decide not whether there is literally no evidence, but whether there is any upon which a jury can properly proceed to find a verdict for the party producing it upon whom the burden of proof is imposed. (Commissioner v. Clark, 94 U. S. 278-284, Pleasants v. Fauts, 22 Wall. 116,120; Lomer v. Meeker, 25 N. Y. 361; Robinson v. McManus, 4 Lans. 380, 386 ; Fish v. Davis, 62 Barb. 122 ; Appleby v. Astor F. Ins. Co., 54 N. Y. 253, 261.)
   Daftforth, J.

As to the character of this action the parties are agreed. It is for “ falsely and fraudulently ” and with intent to deceive and defraud the plaintiff,” representing, among other things that the defendant’s warehouse was fire-proof on the exterior,” whereby the plaintiff was’ induced to deliver to him to be stored therein, certain property of value, which while there was destroyed by fire communicated from the outside to the wooden cornice and wooden window frames ” of the warehouse and thence to the property in question.

The answer admitted that defendant was proprietor of the warehouse; that it and the articles described in the complaint were destroyed by fire, but denied the other matters above referred to as making out a cause of action, and set up that “ the property was received and stored by him as a warehouseman, and in no other capacity, and under the special contract that the goods were stored at the owner’s risk of fire.” There was no controversy as to the evidence. The question was determined upon that introduced by the plaintiff and in view of the law as it stood at the time of the bailment. The appellant refers to the statute (Laws of 1871, chap. 742, § 8), “in relation to storage and other purposes”; imposing liabilities upon persons for any fire resulting from their willful and culpable negligence, and which among other things requires “the closing of iron shutters ” at the completion of the business of each day, by the occupant of the building having use or control of the same. But the complaint contains no allegation of negligence, and so the action could not stand on that ground either at common law or by statute. Another statute also referred to, relating to buildings in the city of Hew York (Laws of 1874, chap. 547, § 5), is of some importance in its bearing upon the point chiefly pressed upon us, and as likely to have been in contemplation of both parties. It is there provided that buildings of a certain description—-within which the storehouse in question comes — shall have doors and blinds and shutters made of fire-proof metal on every window and opening above the first story.” The plaintiff’s testimony went to show that she was induced to store her goods with the defendant by representations contained in a circular issued by him, the object of which, as therein stated, was to call “ the special attention of persons having valuable articles, merchandise, or other property for storage, to his new first-class storage warehouse, in the erection of which,” it said, among other things, “ no expense has been spared in supplying light, ventilation and protection against the spread of fire, the exterior being fire-proof, and the interior being divided off by heavy brick walls, iron doors, and railings appropriate and convenient in every way for the various kinds of articles to be stored.” The learned counsel for the respondent argues that the only statements of fact in the paragraph quoted, are those which relate to the interior as divided by heavy brick walls, iron doors and railings; that as to those, the defendant had knowledge, and concedes that their non-existence would make him guilty of a misrepresentation. This is a very narrow view of the subject, and could prevail, if at all, only by conceding that the defendant purposely avoided mention of those things which if stated would make his solicitations less attractive, and display him as the owner of a building combustible on the outside, and so of little security to its contents, if they happened to be of the same character.

We think the appellant’s ground of complaint a just one. It was proven that in fact the window frames in the warehouse were of wood ; that at the outside of the windows there were no shutters; that the cornices were of wood covered with tin. The fire occurred in the evening. It originated in other buildings across the street, and from them communicated to the wooden window frames on the defendant’s building. An architect and a builder, examined as experts, testified that a building constructed as was the' one in question, “ with wooden window frames and sashes, and no outside shutters,” could not be deemed fire-proof, and that in October, 1881, it was practical to erect a storage warehouse which would be fire-proof on the exterior. At the close of the plaintiff’s evidence she was non-suited upon the ground that the statement in the circular as to the character of the exterior of the building, was a mere expression of an opinion, and not the statement of a fact. Upon the same ground the judgment was affirmed at the General Term. In such a circular, obviously intended as an advertisement, high coloring and exaggeration as to the advantages offered, must be expected and allowed for, but when the author descends to matters of description and affirmation, no misstatement of any material fact can be permitted, except at the risk of making compensation to whomever, in reliance upon it, suffers injury. Here the allegation is that the exterior of the building is fire-proof. It necessarily refers to the quality of the material out of which it is constructed, or which forms its exposed surface. To say of any article it is fire-proof conveys no other idea than that the material out of which it is formed is incombustible. That statement, as regards certain well-known substances usually employed in the construction of buildings, while it might in some final sense be deemed the expression of an opinion, could in practical affairs be properly regarded only as a representation of a fact. To say of a building that it is fire-proof excludes the idea that it is of wood, and necessarily implies that it is of some substance fitted for the erection of fire-proof buildings. To say of a certain portion of a building it is fire-proof suggests a comparison between that portion and other parts of the building, not so characterized, and warrants the conclusion that it is of a different material. In regard to such a matter of common knowledge, the statement is more than the expression of opinion ; no one would have any reason to suspect that any two persons could differ in regard to it. But when we look at the words accompanying this statement, viz.: “Ho expense has been spared in supplying protection against the spread of fire,” all possibility of doubt seems removed. This danger is pointed out as the one thing which, more 'than another, the owner had in view, and guarded against, and the rest of the sentence shows with what result, viz., “the exterior being fire-proof,” and the interior divided off by heavy brick walls, iron doors and railings. Thus the expenditure of money is said to have been limited only by the accomplishment of the desired object, and the statement of the material used is in connection with the representation as to the quality of the exterior. Ho one reading of inside walls and railings of incombustible material, and of an exterior fire-proof, could suppose that a precaution against fire, made necessary by statute, had been omitted, or that a builder who called attention to such matters as an inducement to patronage, could have' regarded wooden window frames as in any sense fire-proof. The language of the circular is very emphatic. In effect it says the buildings, as a whole, have been erected at an immense cost, from which assertion alone, in view of the business to which they were devoted, one would expect strength and adaptation of materials and skill in construction, affording security at least against all the ordinary dangers to which property might be exposed when put in store; but this general statement is followed by the declaration that no expense has been spared in supplying “ protection against the spread of fire,” and this assurance is made prominent by the display of capital letters, and justified by the explanation which relates to an existing state of things, viz., “the exterior being fire-proof,” and still further emphasized by the more moderate and qualified statement as to the interior; that is not said to be fire-proof, but only “'divided off by heavy brick walls and iron doors and railings,” describing at the same time its arrangement and the substance of its walls and partitions. As to this, therefore, the statement would be true, although the floors, lintels, stairs, landings, ties, joists, ceilings and other parts were of wood, but no such discrimination is suggested as to the exterior. The strength of the walls might indeed be impaired by the necessary openings for doors and windows, but for the purpose of preventing mischief by fire, or as the defendant put it, “ the spread of fire,” the exterior is pronounced fire-proof. Had he only said of the exterior as he did of the interior — the wall is of brick — the intending customer would have been put to an inquiry as to the window frames and doors. He said much more. We think, therefore, that the defendant must be regarded as stating a fact and not as expressing a mere opinion, when he described the exterior — that is the whole exterior — of his buildings as fire-proof. Such statement is not to be classed with those relating to value, or prospective profits, or prospects of business, or assertions in regard to a speculative matter, concerning any of which men may differ. It relates to something accomplished, to an existing fact as distinguished from one yet to come into existence, it was made after calling to mind the use to which the buildings were to be put, the fact that the attention of the builder had been especially directed to “ protection against the spread of fire,” which could be effected only by the use of proper materials, and the statement was made with knowledge that such materials had not been used.

Nor is it like the safe casé cited by the respondent. ( Walker v. Milner, 4 Fost. & F. 745.) There the action was upon a warranty that “ the safe in question was thief proof,” “ that nothing can break into it.” It was broken into. There was no suggestion of fraud or deceit, and the jury were required to discriminate between what was represented and what was warranted, and unless satisfied there was a warranty, to find for the defendant. The safe-maker’s prospectus was put in evidence; it stated that the safes would insure the safety of valuable property contained in them. The court said : “ The words cited from the circular could hardly be understood in the sense of a warranty or assurance of perfect safety, but only as importing a representation of a high degree of strength.” They were promissory merely. Then plaintiff’s counsel referred to a later prospectus in which the safes in question were only spoken of as of the strongest security,” and relied on this as implying a withdrawal of the previous warranty.

But Oookbubh, J., observed that, “ Assuming later prospectuses to have been issued after the burglary, it was only dictated by common honesty. For, after it had been found by actual experience that the safe was not absolutely secure against all possible attempts, it would have been fraudulent to continue previous description.”

In the case at bar the plaintiff alleges fraud. A jury might find that an exterior of a city building, partly of wood, although to no greater extent than the one in question, was not fire-proof within the meaning and intent of the circular ; they might also find that when the circular was issued, this fact was known to the defendant, and then the doctrine, suggested by Cockbubn, J., in the case cited, would have some application. Hor do the other cases referred to seem to support respondent’s contention. They exclude the idea of fraud, and relate to matters of mere opinion. As, whether a certain valve will consume smoke and save fuel ? (Prideaux v. Bunnett, 1 C. B. [N. S.] 613.) Whether certain pictures were the work of the old masters, or copies? (Jendwine v. Slade, 2 Esp. 572.) Whether land was of the value certified to? (Gordon v. Butler, 105 U. S. 553.) But'in none of them is it denied that if the person mating the statement or expressing the opinion had at the time knowledge of its falsity, the action would lie.

It is certainly well settled upon principles of natural justice that for every fraud or deceit which results in consequential damage to a party, he may have an action. Here the complaint states not only a false representation with a fraudulent intent, but that the falsehood was conscious and willful; that by it the plaintiff was induced to deliver her property to be stored in the building and thereby incurred loss. The evidence may be so viewed as to sustain these allegations.

The learned counsel for the respondent has stated in the broadest and most unqualified terms, as a proposition not to be disputed, “that no man is liable for the expression of his opinion or judgment.” But this is true only when the opinion stands by itself and is intended to be taken as distinct from any thing else, and where the proposition is found in the books it is so restricted. Thus it is said : “ Matters of opinion, stated merely as such, will not in general form the ground to a legal charge of fraud ” (Leake on Contracts, 355), giving many instances and also exceptions to the rule. Statements of value have been held insufficient to sustain an action where, as is said, they were “ mere matters of opinion ” (Simar v. Canady, 53 N. Y. 298, 306), but at the same time it is shown that under certain circumstances they are to be regarded as affirmations of fact, and then if false an action can be maintained upon them. The same rule applies where A. desiring credit of B. for a certain amount, the latter asks C. as to the solvency of A. and he replies, “ he is good, as good as any man in the country for that sum.” Ho doubt this involves opinion, but it is held that if the recommendation was made in bad faith and with knowledge that A. was insolvent, C. would be liable (Upton v. Vail, 6 I. R. 181); and so as to every representation concerning a matter of fact by which one man is induced to change his position to his injury or the benefit of another. It may be so expressed as to bind the person making it to its truth whether it take the form of an opinion or not, or it may appear that it was not intended to be acted upon. In the latter case no obligation is incurred. ’

In the circular issued by the defendant there are many words of commendation, which, however strong, could not be relied upon as the basis of contract. The ones at first referred to are not of that character. They relate to the present and describe a portion of the building in its existing state as “ being fire-proof.” This is not a matter of opinion, for it defines a state or condition, and if part of that portion was of wood, may properly he regarded as a false statement of a fact.” Whether the defendant knew the component parts of his own buildings, and if so, whether the statement was made with intent to deceive, and whether it was an inducement to the contract, the learned counsel for the respondent has fully argued. At present it is unnecessary to discuss those questions, .for it seems to us they are, as the case stands, properly for the jury, and upon the only point which appears to have been considered .by the court below we are obliged to differ from them.

That the issues may be more fully tried, the judgment should be reversed and a new trial granted, with costs to abide the event.

All concur, except Andrews and Miller, JJ., not voting, and Earl, J., dissenting

Judgment reversed.


author: Earl, J.

text:
    The Market National Bank of New York, Appellant, v. The Pacific National Bank, Respondent.
    After the collection of a j udgment in an action in the Supreme Court, it was vacated by the General Term. The order of General Term was affirmed, on appeal to this court An order was entered at Special Term on the remittitur, making the order of this court that of the Supreme Court. Held, that a motion for restitution was properly made at General Term. (Code of Civ. Pro., § 1293.)
    It is in the discretion of the court to deny such a motion on account of delay, and where it does not appear that its discretion was abused in refusing to deny on that ground, its order is not reviewable here.
    It is not a ground of objection to an order of restitution that restitution is directed to be made to a receiver of the defendant.
    Prior to the granting of such an order the receiver had commenced an action against plaintiff to recover the moneys collected, and also an action against a corporation from whose possession plaintiff took the property-levied upon and sold to satisfy the judgment. The order of restitution was granted on condition that these actions should be discontinued and the taxable costs therein paid by the receiver. Held, that the pendency of the actions did not preclude the defendant from making the motion, and it was within the discretion of the court to determine whether, notwithstanding them, the motion should be entertained and granted, and as plaintiff’s rights were entirely protected, it had no cause for complaint.
    (Argued April 27, 1886 ;
    decided June 1, 1886.)
    Appeal from an order of the General Term «of the Supreme Court, in the first judicial department, made January 29,1886, the nature of which as well as the material facts are stated in the opinion.

      S. B. Qlarke for respondent.
    The Supreme Court had power summarily to restore to the Pacific Bank what had been taken from it under that court’s erroneous judgment and execution. (Clark v. Pinny, 6 Cow. 297; Safford v. Stevens, 2 Wend. 158, 164; Bank of U. S. v. Bank, 6 Pet. 17; Code, §§ 1323, 1292.) Application for restitution Was properly made in the first instance to the General Term. (Code, § 2; Murray v. Berdell, 98 N. Y. 480.) The order of restitution rested in discretion, and, therefore, was not appealable. (Holloway v. Stevens, 58 N. Y. 670 ; affirming, 1 Hun, 308; People v. Livingston, 80 N. Y. 70 ; Aden v. Lee, 1 Yeates, 160, 270; Marvin v. Mining Co., 56 N. Y. 671.)
    « Aram Wakeman for appellant.
    The receiver, not ha. ing been made a party to this action in any way, has no standing in court to make this motion. (Tracy v. First Nat. Bk. of Salina, 37 N. Y. 523-5 ; In re Griswold, 13 Barb. 412; Ketoham v. Ketoham, 1 Abb. [N. S.] 157; Isham v. Ketoham, 46 Barb. 43; Boss v. Wigg, 100 N. Y. 244.) Section 1292 of the Code extends only to judgments recovered against the parties to the action, and this motion, like any other motion, can only be made by a party to the same. (Tracy v. First Nat. Bk., supra; Murray v. Berdell, 98 N. Y. 480; Ogara v.
      Kearney, 77 id. 480-3.) “ The court ” named as the tribunal to exercise the powers conferred by section 1292 was not the General Term of the Supreme Court, but the Special Term. (Rule 38, Code, § 768 ; People v. Nichols, 18 Hun, 535.)
   Earl, J.

The plaintiff attached the property of the defendant. A motion was made at Special Term to set aside the attachment which was denied. Judgment having been entered against the defendant, execution thereon was issued, and the plaintiff collected and received thereon, out of the attached property, upwards of $26,000. The defendant appealed to the General Term from the order of the Special Term refusing to vacate the attachment, and there the order of the Special Term was reversed, and the attachment, judgment and the levy under the attachment were vacated and set aside. The plaintiff appealed from the order of the General Term to this court, and here that order was affirmed, and the' case was then remitted to the Supreme Court, and an order was entered at the Special Term on the 1st day of December, 1883, making the order of this court the order of the Supreme Court. In January, 1885, the defendant moved at the General Term of the Supreme Court for restitution of the money collected by the plaintiff of it, and the motion was granted, and the plaintiff then brought this appeal to this court.

Section 1292 of the Code provides: “When a judgment is set aside for any cause, upon motion, the court may direct and enforce restitution in like manner, with like effect and subject to the same conditions as when a judgment is reversed upon appeal.”

The court meant in this section is the court which set aside the judgment, and hence this motion for restitution was properly made at the General Term, and the . section is authority for the restitution ordered in this case.

There is no provision or rule of law which required this motion to be made sooner, or its denial on account of the delay. The court could, in the exercise of its discretion, have denied the motion on account of the delay, and left the defendant to its action to recover back the money. But we do not discover that the plaintiff suffered any harm by the delay, or that the court abused its 'discretion, and we have no power, therefore, to review it.

The objection that the receiver of the defendant could not make the motion .is misconceived. The motion was made by an attorney appearing for the defendant, and in the notice of motion he asked to have restitution made by payment to the receiver. So that the motion is really made on behalf of both the defendant and its receiver; and the order of the General Term awarded restitution to the defendant, but that the payment in restitution should be made to the receiver. This is-the form of order asked for by defendant’s attorney, and the-plaintiff has no. occasion to find fault with it in that respect.

It appears that the receiver of the defendant had commenced an action in the Circuit Court of the United States to recover the same money against the National Park Bank, from whose possession the plaintiff took it by the attachment and judgment in its favor, and also another action in the same court against the plaintiff to recover the same money. The pend-ency of those actions did not preclude the defendant from making this motion, and it was within the discretion of the court to determine whether, notwithstanding their pendency, this motion should be entertained and granted, and-when it granted it on condition that those actions should be discontinued and the taxable costs therein paid by the receiver, it sufficiently protected the rights of the plaintiff. We see nothing in the terms upon which the order was granted of which the plaintiff can justly complain.

We are, therefore, of opinion that the order should be affirmed, with costs.

All concur.

Order affirmed.


author: Danforth, J.

text:
    The People, ex rel. William Murray et al., Trustees, etc., Appellants, v. John McClave, Treasurer, etc., Respondent.
    The police relief fund, created by the act of 1885 (Chap. 486, Laws of 1885), was intended to be a voluntary fund, and contributions thereto may not be compelled by deductions from the pay of a member of the police force of a city affected by the act, against his will.
    (Argued April 27, 1886;
    decided June 1, 1886.)
    Appeal from order of the General Term of the Supreme Court, in the first judicial department, made( March 5, 1886, which reversed an order of Special Term, directing the issuing of a peremptory writ of mandamus requiring defendant, as treasurer of the board of police of the city of New York, to deduct $2 per month from the pay of each member of the police force of said city, and pay the same over to the treasurer of the police relief fund, created by the act (Chap. 486, Laws of 1885). (Reported below, 37 Hun, 511.)
    Defendant refused to make the deduction without the consent of the member.

      Edward M. Shepard and Charles W. Wetmore for appellants.
    In construing a statute insisted to be doubtful the first duty is to find whether the words themselves do not appear, upon attentive examination, to be plain in themselves. (Newell v. People, 7 N. Y. 97; Mangam v. Brooklyn, 98 id. 591.) The salary attached to a public office is not “ property ” and may, at the pleasure of the legislature, be increased or diminished by statute during the term of an incumbent. (Connor v. Mayor, etc., 1 Seld. 285, 295, 296 ; People v. Stevens, 51 How. Pr. 153 ; People v. Roper, 35 N. Y. 639 ; People v. Devlin, 33 id. 288 ; Smith v. Mayor, etc., 37 id. 518 ; In re N. Y. El. R. R. Co., 3 Abb. N. C. 423.) It was not necessary that the policemen from whose salaries the deductions are to be made should be made parties. (High on Extraordinary Legal Remedies, § 440 ; Wood on Mandamus, note in 2 Johns. Cas. 217, § 50.)

      David J. Dean for respondent.
    The compensation of a policeman is a salary in which he has property and of which he may not be deprived against his will. (People, ex rel. Ryan, v. French, 91 N. Y. 265; Const., art. 1, § 6.)
   Danforth, J.

Whether we look at the precise language of the statute in question (Laws of 1885, chap. 486), or the substance of the matter included in it, we are brought to the conclusion reached by the General Term, that the contribution to the fund created by that act must be voluntary; that the defendant cannot, against the will of any member of the police force, deduct for its purpose any portion of his pay ; that the relators cannot, without his consent, receive it.

First, its language. It is entitled an act to create a relief fund in the police department in all cities of this State having, according to the last census, a population exceeding one million. By section secohd the fund consists of a sum of money equal to $2 per month for each member of the police force of said department and also for each member or employe of the police department, other than the said police force “ who shall desire to avail himself of the privileges and provisions of this act, and also for members of the Police Mutual Aid Association of the said department, who, at the time of the passage of this act, are in good standing therein and who shall desire to contribute to the said fund, to be paid monthly by the treasurer of the board of police or commissioner of police .of said department to the treasurer of the board of trustees of the police relief fund created by this act, from moneys deducted from the pay of such members of said force or members or employes of said department, and the treasurer of the board of police or commissioner of police of said department is hereby authorized and directed to make such deduction from the pay of the members of said police force as herein provided.”

It is evident that three classes of persons, all within the police department, were in the mind of. the legislature at the preparation of this act; first, members of the police force; second, other members or employes of the department; third, certain members of the Mutual Aid Association of the department j and all these were deemed possible beneficiaries. It is also evident and is conceded by the appellant that the second and third class contribute or not as they please. If they contribute they share in the privileges of the fund, but otherwise, not. They therefore have an election to make a present use of their money, or, by its surrender, secure a future advantage to their appointee or widow or representative. I am unable to find any reason for placing the first class in a less favorable or different position. The prescribed fee is the same. But it is said in behalf of the appellant, that while as to the second and third class the contribution is voluntary, the legislature has made that of the members of the force compulsory, by express direction to the defendant, through whom their pay must come, to make the deduction. But here is the very point of the controversy. Is he to make that deduction, unless the member of the police force, whose pay he holds, “ desires to avail himself of the privileges and provisions of the act ? ” I think not. Nothing can better express the meaning of the statute than the words quoted. In their natural order, among the clauses of the section where they stand, they qualify and limit the general words which precede them and leave each member of the police force, as well as the other classes there enumerated, to determine for himself whether he will accept the opportunity afforded by the statute and make provision against his death. That is the substance of the statute and its design. The fund created is not for pensions, nor its benefit confined even to the family of the policeman. No one can share in its advantages who has not contributed, and he who has may have the sum accruing upon his death paid' to such person as he in writing shall direct. (Act of 1885, supra, § 4.) The act'is beneficent, but the legislature has not sought to compel any one to accept its terms, and it is, therefore, unneeessaiy to determine whether they lawfully could or not.

The order appealed from should be affirmed, but without costs.

All concur, except Sapallo, J., dissenting, and Miller, J., not voting.

Order affirmed.


author: Finch, J.

text:
    The People, ex rel. Charles T. Harvey et al., Appellants, v. Edward V. Loew, Comptroller, etc., Respondent.
    The provision of the act of 1885 (Chap. 554, Laws of 1885), authorizing the construction of an “ illustrated, section” of elevated railroad on some i) “ duly authorized street/’ in the city of New York, is violative of the provision of the State Constitution (Art. 8, § 18), which prohibits the passing of a local or private bill, “ granting to any corporation, association or individual the right to lay down railroad tracks.”
    It is also unconstitutional in that no provision is made for compensation to abutting owners, or owners of the fee of the street.
    (Argued April 37, 1886;
    decided June 1, 1886.)
    Appeal from order of the G-eneral Term of the Supreme Court, in the first judicial department, made March 5, 1886, which aifirmed an order of Special Term denying a motion for a peremptory writ of mandamus, requiting defendant, as comptroller of the city of Hew York, to pay over to the relator one-third of the fund referred to in, and as required and directed by chapter 554, Laws of 1885. (Reported below, 39 Hun, 396.)

      Samuel Hand for appellants.
    The act of 1868 (Chap. 855) is valid as to the subject expressed in the title, although other sections may be void because not so expressed. (Patten v. N. Y. E. R. R. Co., 3 Abb. N. C. 318; People v. Briggs,, 50 N. Y. 553, 566, 567; In re Van Antwerp, 56 id. 261; In re Sackett Street, 74 id. 95.) The act is not in violation of the ninth section of article 1 of the Constitution, requiring the assent of two-thirds of the members elected to each house to every bill appropriating the public moneys or property for local purposes. This is not such a bill. That section is confined to property of the State. (In re Kingston, 40 How. 444.) It is not in violation of the constitutional prohibition against impairing the obligation of contracts. (People, ex rel. Hayden, v. Rochester, 50 N. Y. 525 ; Darlington v. Mayor, etc., 31 id. 164.)

      R. E. Deyo and D. J. Dean for respondent.
    The act of 1885 (Chap. 554) violates the provisions of section 6, article 1 of the Constitution, forbidding the taking of private property for public use without just compensation, and without' due process of law. (People v. Law, 34 Barb. 494; Laws of 1842, chap. 306, § 3; R. S. [7th ed.] 434; People v. Allen, 42 N. Y. 378; Gerard’s City Water Rights and Streets, 127-165; Brooklyn Park Comrs. v. Armstrong, 45 N. Y. 234-243; In re Albany Street, 11 Wend. 148; Embury v. Conner, 3 Comst. 511.) It violates section 16, art. 3, “ no private or local bill which may be passed by the legislature shall embrace more than one subject, and that shall be expressed in the title.” (In re N. Y. E. R. R. Co., 70 N. Y. 327-336, 350; Huber v. People, 49 id. 142; In re Blodgett, 89 id. 392.) The contemplated contract with Harvey is not for an exclusive public use, and the legislature cannot compel the city to enter into it without its consent. (People v. Batchellor, 53 N. Y. 128; Horton v. Town of Thompson, 71 id. 513; People v. Otis, 24 Hun, 519.) It is a violation of that portion of section 18, article 3, which provides that the legislature shall not pass a private or local bill, “granting to any corporation, association or individual the right to lay down railroad tracks.” (In re N. Y. Elevated R. R. Co., 70 N. Y. 344; In re Gilbert E. R. R., id. 361.) The property of a municipality is as much within the protection of the prohibition of the Constitution as is the property of an individual. (People v. Otis, 24 Hun, 519; Webb v. Mayor, etc., 64 How. Pr. 10; Corning v. Greene, 23 Barb. 33, 60; Benson v. Mayor, etc., 10 id. 223 ; People v. Supervisors Westchester, 4 id. 64.) A contract between the city and the railroad company for the benefit of third parties can be preserved and enforced by them. (Lawrence v. Fox, 20 N. Y. 268.)
   Finch, J.

The legislation upon which the claim of the relator is founded discloses very questionable and peculiar characteristics. He. is authorized to build an experimental section of elevated railway, not less than one-quarter of a mile in length, upon some duly authorized street of the city, with a view of inventing or discovering improvements in the system which, if adopted, will make the existing structures less offensive or inconvenient. The section is to be not a model, but an actual operating railway, and yet is to be such wholly for experimental purposes; not transporting passengers or open for public use, but subject to continuous changes and trials born of new ideas, and made to test their effectiveness and value. The length of this experimental section beyond one-quarter of a mile is in the discretion of the relator. He may, if he chooses, extend it to the exterior bounds of the city. Its size, character and mode of construction are in like manner largely in his discretion, and he may thus obstruct an avenue of travel, or take away the property rights of abutters without any provision for their compensation. Ho time is limited for its continuance. So long as the relator is alive to invent or experiment he may test his ideas upon the structure built, or remodel and change it, unless the legislature shall put an end to the enterprise, or the relator determine that his improvement is complete. The law does not say to whom the improvements shall belong, or even that they shall be introduced on any existing or future elevated railway, and the result of the whole enterprise as planned by the statute will only be that the city and the State will learn that some things in mechanical engineering can or cannot be successfully accomplished. Of course the relator did not propose to thus educate himself and the city — himself by experiments and the city by results — at his own expense or without compensation; and the mode of accomplishing that is as unusual and peculiar as the enterprise to be paid for. Under an act passed in 1867 (Chap. 489), the West Side and Yonkers Patent Bail way Company was authorized to build an elevated railway in Greenwich street and did so construct it, and was required to pay five per cent of its net income into the treasury of the city of Hew York as compensation for the use of the streets. By a supplemental act passed the next year (Chap. 865, Laws of 1868), this fund was required to. be kept separate from other city funds and to be applied by the commissioners appointed under the original act to the improvement of- the occupied streets “ by preserving or transplanting shade trees or by other embellishments or improvements of awnings or sidewalk structures,” and this payment was declared to be “ the legal compensation in full for the use and occupancy of the streets by said railway,” and to constitute an agreement in the nature of a contract between said city and constructing company.” But in 1885 this fund, thus belonging to the city under what was called a contract and devoted to the improvement of its streets, was diverted to Charles T. Harvey, engineer, for building his “illustrative section.” The whole sum then on depósit with the comptroller was about $168,000; and oil e-third of this was directed to be paid to Harvey “ forthwith,” ‘‘ for the purpose of defraying the expenses of experiments as to said motive power now in progress, and for making surveys and other preparations for building said section.” A “ like amount ” was to be paid “ as the work upon said section progresses,” — a stipulation quite significant —■ and then, when the section is complete, and certified by the governor, state engineer and mayor to have demonstrated or developed material improvements in the methods of constructing or operating elevated railroads,” all sums remaining in or accruing to said fund ” are to be paid over to Harvey, who, after having thus completed his section and its improvements, is nevertheless to continue experimenting with a view to ‘ ‘ attaining the highest possible perfection the annual five per cent to continue to be paid to him to aid his struggle toward that perfection “ until the legislature shall otherwise direct.” There is no provision in the act for an audit of the engineer’s accounts; nothing which determines what proportion shall be compensation and what expenses ;and he would be strangely disinterested if the latter did not dwindle to increase the former. It is true that he gave a bond, but that was conditioned only that he would faithfully perform his duties, or in other words, faithfully experiment.

That this arrangement was in fact an appropriation of the money of the city to the private benefit of the relator, at least so far as the portion now claimed to be. payable is concerned, and that the appearance of a public purpose thrown about it is colorable merely, is contended by the city and has much of probability to support it. The first one-third of the money is payable forthwith, cash down. Another third as the work progresses. The engineer is left at liberty to absorb the first third absolutely; to put it in his, purse and keep it as his own ; he may then begin experiments and pay for them, and take his own compensation out of the second third, “ as the work progresses,” for that is the provision of the law; and so there may be nothing which the city or the State has a legal right to demand of the engineer, as the consideration of the first payment. The engineer can begin no construction until upon some duly authorized street.” The city cannot give the authority in and of itself. (Laws of 1860, chap. 10.) The legislature has not done so and may never, apd the relator will not be in default, and may rest quietly with the $56,000 in his possession, content with the situation. It is true that the law speaks of experiments “ now in progress.” But these were Harvey’s experiments. Ho one directed him to make them. Heither the city nor the State, so far as the record shows, owed him any thing for that, or was under the slightest legal or equitable obligation to bear their expense or compensate him therefor. And, as to the “ surveys ” and preparation, he is left at liberty to treat them as part of the “ work, ” as they in fact are, and draw their expense from the second $56,000. The consideration for the first payment is not easily evolved from the terms of the law, and that a gift was intended in the nature of a reimbursement for losses sustained seems to be disclosed by the document handed up after the argument (Sen. Doc. 62), and it may very well be that the first payment of $56,000 was purposely placed in the power of the relator, upon a merely colorable consideration, in order to give him a gratuity to that extent. But since the possible facts, if we knew them all, might change the aspect of the case in this respect it is better to rest our conclusion upon a less debatable foundation.

The enactment violates section 18 of article 3 of the Constitution, which prohibits the passing of a local or private bill “ granting to any corporation, association or individual the right to lay down railroad tracks.” The relator, or if he be treated as a mere agent, the municipality itself, is authorized by a bill which is certainly “local” if not “private ” to build an elevated railroad in some street of the city. It is not a sufficient answer to say that the track thus to be “ laid down ” is merely experimental and temporary, for the language of the fundamental law is purposely very broad and draws no such distinction. But this track, although experimental, is not temporary. As we have seen, it is permanent and durable, having no limitation except the future will of the legislature. It will bé a railroad not less than one-quarter of a mile long, and may be made much longer, and serve, under the guise of an experiment, to fasten in the end a new road upon the city. That this is not an idle supposition is indicated by the- appellants’ supplemental brief. After speaking of one possible interpretation of the law, he mentions another “ which may validly carry with it the process of duly authorizing certain streets to-be used for these railroad purposes through the medium of a constructing corporation, as intended by the legislature and the memorialist.” The relator perhaps intended to organize a new corporation to help build his “illustrative section,” and then own and run it, although the statute is innocent of any such expressed purpose. Wherever the road runs it must necessarily take either the fee of private owners or the' property of abutters, for in all respects it is to be an elevated road. The act of 1885 describes it as “ a new illustrative section of said form of railway,” and going back to- the act of 1867 to discover that form, we find it to be an elevated track on each side of the streets, supported by iron columns not less than fourteen feet above the level of the pavement. Ho provision is made for compensation to abutting-owners or owners of the fee. For these reasons, without considering others which have been suggested, we are of the opinion that the act under which the relator claims is invalid.

The judgment should be affirmed, with costs.

All concur.

Judgment affirmed.


author: Ruger, Ch. J.

text:
    The People, ex rel. The Port Chester Savings Bank, Respondent, v. David Cromwell, Treasurer, etc., Appellant.
    Where, upon motion for a mandamus, opposing affidavits are read, which conflict with the averments in the moving affidavits, and notwithstanding this the relator demands a peremptory writ, it is equivalent to a demurrer, and the question as to the right to the writ must be determined upon the assumption that the averments of the opposing affidavits are true.
    M. & Co. were the legal depositories of the moneys of the county of W., applicable to the payment of its bonded indebtedness, and had been put in funds by defendant, the county treasurer, to pay the coupons for interest on its bonds. The relator held and presented to M. & Co. certain of said coupons, and upon being asked as to the manner of payment desired, requested a draft for the amount. Thereupon M. & Co. delivered to it their sight draft on a New York bank for the amount, and the relator surrendered the coupons, which were immediately charged to the defendant’s account as paid and were afterward delivered up to him. At the time of the transaction M. & Co. were insolvent, but had on hand money sufficient, and would have paid the coupons in currency but for the election of the relator to take a draft. The draft was presented and protested for non-acceptance and non-payment, M. & Co. having failed meanwhile. Meld, that the relator was not entitled to a peremptory mandamus requiring defendant to pay the coupons ; that the authority of M. & Co. was limited to payment, and the relator having accepted the draft in lieu of money, he did so upon his own responsibility; the transaction was, as against the county, a payment and it was not chargeable with the loss.

      Indig v. Mat. City Bk. (80 N. Y. 100), Turner v. Bank of F. L. (3 Keyes, 435), and the cases arising directly between debtor and creditor, distinguished.

      People, ex rel. P. C. Savings Bk., v. Cromwell (38 Hun, 384), reversed.
    (Submitted April 37, 1886;
    decided June 1, 1886.)
    Appeal from order of the General Term oi the Supreme Court, in the second judicial department, made December 15, 1885, which reversed an order of Special Term denying an application for a peremptory writ of mandamus, and which directed the issuing of such a writ as prayed for by the relator commanding defendant, as treasurer of the county of Westchester, to pay to the relator the sum of $521.50, the amount of certain coupons for interest upon bonds issued by said county. (Reported below, 38 Hun, 384.)

      The material facts are stated in the opinion.

      Wilson Brown, Jr., for appellant.
    As the application was for a peremptory mandamus, the facts, so far as they are disputed, must be taken as disclosed by the affidavits on the part of the defendant. (People v. Richards, 21 Week. Dig. 365, 368 ; 73 N. Y. 173 ; 64 id. 600 ; 91 id. 385 ; 98 id. 620.) Unless defendant’s affidavits are treated as the facts, the court could only have issued an alternative writ. (Code, § 2070.) The legal effect of the acceptance of the draft was to accept Masterton & Co. as the debtor and release the defendant. (People v. Merch. Bk., 78 N. Y. 269.) The General Term had no power to grant or issue the mandamus. Such a writ can only be granted at Special Term. (Code, §§ 2068, 2069.)

      Isaac N. Mills for respondent.
    Coupons like these payable to bearer at a certain time and place are like promissory notes payable at a certain time and place. (Evertson v. Nat. Bk. of Newport, 66 N. Y. 14, 18 ; Butler v. Duprat, 51 N. Y. Sup. 86.) Neither presentation or demand for payment at the time and place specified, nor protest or notice of non-payment are necessary to bind the obligor upon the coupons. (Indig v. Nat. Bk., 80 N. Y. 107; Butler v. Duprat, 51 N. Y. Sup. 86; Daniel on Neg. Instr. [3d ed.] 517, § 1507; Burr, on Pub. Securities, 579, 580; 22 Alb. L. J. 478.) It is perfectly immaterial whether relator’s cashier took the check without any discussion between himself and Mr. Bissell, the cashier of Masterton & Co., as to whether the money or a check should be given, or whether Mr. Marshall suggested taking the check, and even asked for a check, and stated that he preferred it to money. (Syracuse R. R. Co. v. Collins, 1 Abb. N. C. 47, 49 ; S. C., 57 N. Y. 641; Bradford v. Fox, 38 id. 290.) A debtor’s own check, or note or bill, given to his creditor in payment of his debt, will not in this State of itself operate as payment unless it be paid; and if upon due presentation it be not paid, the debtor remains liable upon the original debt or obligation, and the creditor may maintain an action against the debtor thereon even if lie gave a receipt in full on receiving the check, note or bill. (Syracuse R. R. Co. v. Collins, 1 Abb. N. C. 47, 49, 50 ; 57 N. Y. 641; Feldman v. Beier, 78 id. 298 ; Hill v. Beebe, 13 id. 562; Bradford v. Fox, 38 id. 289, 291; Thomson v. Bk. of B. N. A., 82 id. 5, 8; Scott v. Meeker, 20 Hun, 164, 165 ; Sweet v. Titus, 4 id. 639.) The taking by a creditor from his debtor or the debtor’s agent of an obligation, i. e., note, check or bill of a third party, for the antecedent debt, does not, in the absence of an express agreement to take the same as payment, constitute payment of the debt; and if the third person’s obligation be dishonored, the creditor may hold his debtor liable upon the original debt, unless such obligation of the third person would have been honored had the creditor used due diligence to enforce it. (Turner v. Bk. of Fox Lake, 3 Keyes, 425; S. C., 4 Abb. Ct. App. Dec. 434; Burkhalter v. Second Nat. Bk., 42 N. Y. 538, 541, 542 ; Smith v. Miller, 43 id. 173; Indig v. Nat. City Bk., 80 id. 100, 107; Bd. of Education v. Fonda, 77 id. 351, 362; Noel v. Murray, 13 id. 167, 169, 170; Claflin v. Ostrom, 54 id. 582, 585; McQuade v. Irwin, 39 N. Y. Sup. 398, 399; Whitaker v. Whitaleer, 4 Hun, 810; Kelly v. Bk., 52 Barb. 535 ; Johnson v. Bk., 5 Rob. 589, 594; Roberts v. Fisher, 43 N. Y. 159.) Where the creditor takes his debtor’s paper, even an express agreement to take it in satisfaction of the debt will not extinguish the original debt. (Syracuse R. R. Co. v. Collins, 1 Abb. N. C. 49; Hill v. Beebe, 13 N. Y. 562.) Where the obligation of a third person is taken by the creditor, if it be so taken upon an express agreement as payment, it will be held to be payment unless in fact it were worthless when taken. (Noel v. Murray, 13 N. Y. 169, 172; Turner v. Bk. of Fox Lake, 3 Keyes, 426; Johnson v. Bk. of N. A., 5 Rob. 590.) There being no funds in the Rational Citizens’ Bank to meet the check, and the check, therefore, being worthless, the relator was under no duty to present it at all, and it was wholly immaterial what diligence, if any, the relator used in presenting the check at said bank. (Brush v. Barnett, 82 N. Y. 403; Smith v. Miller, 43 id. 75, 176; Johnson v. Bk. of N. A., 5 Rob. 594.) Hasterton & Co. are to be regarded as agents of the county treasurer.
      (Indig v. Nat. City Bk., 80 N.Y. 107; Burr. on. Pub. Securities, 580; Bd. of Education v. Fonda, 77 N. Y. 351, 361, 362; Turner v. Bk. of Fox Lake, 3 Keyes, 426; Burkhalter v. Second Nat. Bk., 42 N. Y. 538, 541-2; Smith v. Miller, 43 id. 171; Indig v. Nat. City Bk., 80 id. 100, 107.) The fact that a public officer has wrongfully parted with public money is no defense to a claim by the party rightfully entitled to the money to a mandamus against him. (People, ex rel. Martin, v. Brown, 55 N. Y. 188; People, ex rel. Dannat, v. Comptroller, 77 id. 50.) Failure of the relator to surrender the check is immaterial. • If necessary it can be surrendered now. (Bradford v. Fox, 38 N. Y. 292; Nichols v. Michael, 23 id. 267; Whitaker v. Whitaker, 4 Hun, 810.) Where money has been raised by taxation to pay certain public obligations, and has been placed, in the hands of a public officer for the purpose of his paying them with it, a mandamus to such officer is the appropriate remedy to compel him to do so. (People, ex rel. Fiedler, v. Mead, 24 N. Y. 114,, 119-123 ; S. C., 36 id. 224, 223, 229; People, ex rel. Martin, v. Brown, 55 id. 180, 187; People, ex rel. N. Y. C. & H. R. R. R. Co., v. Havemeyer, 3 Hun, 97, 102; Ross v. Curtis, 31 N. Y. 609-10.) Even a right of action in the relators against the appellant for his wrongful refusal to pay the coupons, or against the county upon the coupons, will not prevent mandamus. (People, ex rel. Fiedler, v. Mead, 24 N. Y. 120 ; People, ex rel. McKown, v. Green, 50 How. Pr. 504.) The General Term properly granted the motion for a mandamus, and after reversing the order of Special Term was not obliged to remit the motion to the Special Term to be granted there. (People v. N. Y. C. & H. R. R. R. Co., 28 Hun, 543, 560 ; Code of Civ. Pro., § 1317 ; Bennett v. Lake, 74 N. Y. 93; Howard v. Freeman, 7 Rob. 25; 3 Abb. [N. S.] 292, 309; Price v. Price, 33 Hun, 432, 435, 476, 481; Knaner v. Globe Mut. L. Ins. Co., 46 N. Y. Sup. 371, 373; 4 Wait’s Pr. 336, § 2; Griffin v. Hembold, 72 N. Y. 437, 441; Shaffer v. Hahn, 28 Hun, 264, 263; People, ex rel. McKenzie, v. Supervisors, 30 id. 148,150; People, ex rel. Humphrey, v. Supervisors, 30 id. 146,148; Code of Civ. Pro., § 208.)
   Ruger, Ch. J.

Ixx the consideration of this appeal, the defendant is entitled'to have the facts determined, in accordance witli the relation thereof, contained in his opposing affidavits. The statements of the affidavits are conflicting, and as the relator, notwithstanding that fact, still demanded a peremptory mandamus, it could only be granted upon the assumption that there were no disputed facts. Its action was1 equivalent to a demurrer to the case presented by the opposing affidavits, and the question thus presented must be determined upon the assumption of their truth. (People v. Richards, 99 N. Y. 620 ; People v. Supervisors, 73 id. 173, 175 ; People v. Supervisors, 64 id. 600.) The facts thus presented are that Masterton & Go. wei'ethe legal depositories of the moneys of the county of Westchester applicable to the redemption of its bonded indebtedness, and before November 1,1884, had been put in funds by the defendant, its county treasurer, to redeem the coupons for interest, on its debt maturing on that day. The relator held such coupons to the amount of upward of $500, and on November 6, 1884, presented them to Masterton & Go. for payment, and upon being interrogated as to the manner of payment, stated that it wished a draft for the amount. Thereupon Masterton & Co. delivered to the relator their sight draft upon the National City Bank of New Yoi’k for the amount thereof, and it surrendered to Masterton & Co. its coupons, which were immediately charged to the defendant’s account as paid, and the coupons were afterward delivei’ed to the county treasurer. At the time of this tx-ansaction, Masterton & Go. had on hand cash sufficient to pay the amount of such coupons, and would have paid them in currency, but for the’ election of the relator to take the amount in a di’aft. The di'aft was px-esented by the x-elator to the National City Bank some time in November thereafter, and was protested for non-acceptance and non-paymexxt, Masterton & Co. having failed in the meantime. That fact was made public on the eighth, although Masterton & Go. were insolvent on the sixth, and remained so until after the draft was presented,

Upon these facts the relator applied for a peremptory man-, damns against the county treasiyer, requiring him to pay the coupons. The defendant alleges that he had no money in his hands with which to pay them, and no means for raising the amount from the tax payers of the county, by virtue of any statutory authority.

The remedy sought is of doubtful propriety in its application to the circumstances related, and it might well be said that payment of the general indebtedness of a county, cannot be enforced by the punishment of its financial officers; but as we are of the opinion that the relator has not shown a case entitling it to recover upon the merits, we prefer to dispose of the appeal upon that ground.

The claim of the relator is that the loss occasioned by the insolvency of Masterton & Co. shall be imposed upon the defendant and enforced by the compulsory process of the court. It is evident that this loss resulted from the voluntary action of the relator in accepting a draft, instead of money, for the obligations of the county then surrendered, and that it thereby intended to discharge its claim upon the county, and accept in lieu thereof the responsibility of Masterton & Co. This is the plain meaning of the transaction as evidenced by the unequivocal acts of the parties, and it cannot be obscured by supposed analogies to other situations. Masterton & Co. were the special agents of the county to pay their coupons, as a bank is the agent of its depositor to pay his check. If upon presentation of a check or order such agent or bank should refuse payment, the debt remains unpaid, but if the creditor accepts any thing other than legal currency in payment, the debt is discharged. (Crawford v. West Side Bank, 100 N. Y. 50.) The authority of the depositary is simple, and limited to the act of making payment, and if the creditor goes further and deals with it for any other transaction than that of receiving payment, he does so upon his own responsibility, and must bear the consequent loss, if any, of such a transaction.

The surrender of the possession of the coupons, by the relator was inconsistent with the expectation of any continuance of liability on the part of the county thereon, as it was beyond the power of Masterton & Co.'to authorize such an expectation. The county had provided the funds for the payment of its indebtedness, and if the creditor accepted any thing else than cash for its obligations, he was at liberty to do it, but acted on his own responsibility in so doing. The entire scope of the.agency of Masterton & Co. was to pay out the moneys of the county to its creditors in the amounts, to the persons and at the time specified in its obligations, and outside of the performance of this duty they had no power to bind or affect the county. The limitations upon their authority arose from the nature of the business they were authorized by statute to transact, and were obvious to all who had financial .dealings with the county.

By the acceptance of the draft, the relator authorized Master-ton & Co. to immediately appropriate to their own use so much of the funds as had been provided by the county to pay the coupons in question, and when such coupons were afterward delivered to the county, Masterton & Co. became entitled to credit therefor. It was thus placed beyond the power of the county to reclaim those funds, or hold the bondsmen of Master-ton & Co. liable for default of their principal. Masterton & Co. were not parties to the obligations presented and were under no liability thereon, and their draft was the obligation of a third person accepted in exchange for the coupons surrendered. The defendant had no authority over this transaction, and it was beyond his power to influence or prevent it.

There is little analogy between this case and that of Indig v. Nat. City Bank (80 N. Y. 100), cited by the relator and apparently much relied on. There the defendant was an agent of the plaintiff, employed to make collection of a note at a distant point, and was sued for alleged negligence in accepting the draft of its own agent in payment of the collection. The liability depended solely upon the question of negligence. It was held that the collection was made according to the known and customary usages of business, and in accordance with the implied authority, conferred upon the agent in transacting such business for its principal. It was further intimated in the case that the plaintiff therein had suffered no logs, as it did not appear that the note had beep paid, the maker not • having sufficient funds on deposit at the place of payment at its maturity to pay it. The implication from this case is quite strong that if the maker had provided funds, as the defendant did here, to pay the obligation, that the transaction would have operated as payment of the note. This case is similar in some respects to that of Smith v. Miller (43 N. Y. 171), where it was said that “ a creditor may so deal with negotiable securities received from his debtor for collection, and to be placed to his credit when paid, as to discharge the debtor from all liability whether the securities are in fact paid or not. He may make them his own so as to substitute the parties to the securities as his debtors, in place of his original debtor by his dealings with those parties, or by giving time for payment; or by any other act prejudicial to the interests of the debtor.” (Southwick v. Sax, 9 Wend. 22; Vernon v. Brown, 2 Shaw, 296.) The same result will follow any neglect or loches of the creditor, in obtaining payment of negotiable instruments transferred, from which loss and injury ensues. In Smith v. Miller the defendants, who resided at Buffalo, were indebted to plaintiffs, living at New York, and in payment of such indebtedness remitted to them a sight draft on an apparently solvent firm, residing in .the same city, with -whom the drawers had funds. The plaintiff presented the draft and accepted a check upon a bank in Hew York from the drawees in payment thereof. This check would have been paid if presented on the day of its receipt, but the plaintiff omitted to present it until the next day, when payment was refused. The maker having in the meanwhile become insolvent, it was held that the plaintiff had by Ms loches released the drawers of the draft from liability, and constituted the makers of the check his debtors for the amount. The transaction there was directly between the debtor and creditor, and although in that regard much more favorable to the claims of the creditor than here, yet it was held that the creditor had lost his remedy against the debtor, although he had received the check of one of the parties to the draft in payment thereof.

The case here presented is also clearly distinguishable from those arising directly between the debtor and creditor. In those cases there is no question as to the power of the debtor to authorize the continuance of his original liability, and in any transaction having in view the payment of his obligation, it is required that it shall be actually paid in order to discharge it, or that something shall be received by the creditor from the debtor under an express agreement that it shall operate as payment. The case of Turner v. Bank of Fox Lake (3 Keyes, 425), also cited by the relator, is not an authority in its favor. There the creditor sued upon a bill of exchange of which he had possession, but which had been reclaimed by him, after having been once surrendered in exchange for the check of the drawee. After payment of the check had been refused, the holder returned it to the drawee and recovered possession of the bill, and caused it to be duly protested for non-payment. It was held that the bill sued upon was given upon a sufficient consideration. In that case the check of a person liable as a party to the draft had been received in payment, and it was received by an agent for collection; and the question was, whether the agent had discharged his duty in making the collection with diligence and fidelity.

But little aid in the solution of the questions here presented can be derived from cases, arising between principals and collecting agents, as in such cases the question is usually one of negligence alone, and is governed largely by the usages of trade. Here no custom has been proved or can be proved, and but little evidence given as to the facts, upon which the situation of the parties would be affected, by the omission of the relator to present the check promptly. It certainly seems probable that having received the check on the sixth, it might have caused it to be presented in Hew York on the seventh, when it probably would have been paid ; but whether so or not, the evidence is not before us to enable us to determine that question. Clearly the relator has not made a ease which exempts it in law from the imputation of loches. In this case the relator accepted the obligation of a third person, in payment of its claim against the county, and having failed to realize the amount of the security taken, without recovering possession of its coupons, seeks to re-establish a debt against the county. We think it is precluded from doing so by the defense of payment.

The order of the General Term should be reversed and that of the Special Term affirmed, with costs.

All concur.

Ordered accordingly.