text:
    Ten Cases. THE PEOPLE ex rel. GEORGE H. PURSER, Appellant, v. ANDREW H. GREEN, Comptroller, etc., Respondent.

      Mandamus—street openings—remedy of employes of the commissioners.

    Persons employed by the commissioners, appointed to lay out and open streets in the city of New York, to act as clerks, prepare maps, etc., have no right of action against the city; their only remedy is against the commissioners employing them.
    Appeals from orders of the Special Term, denying motions for writs of mandamus.

      T. O. T. Buckley, A. J. Vanderpoel and Allison c& Shaw, for the appellant.

      Dexter A. Uaiokins, for the respondent.
   Davis, P. J.:

The relator moved, at Special Term, in ten cases (all having the same title), for peremptory writs of mandamus, commanding the respondent, as comptroller, etc., to pay to him divers sums, amounting in the aggregate to $113,550.24, besides interest, for his services as clerk, in divers street openings in said city, and in laying out Riverside Park, and for alleged room rent, and for services in copying reports in said matters.

The affidavits on the part of the respondent, read in opposition to the motion, deny in substance that the respondent has in his hands, or under his control, money collected in said several matters, sufficient to pay said demands, respectively, or any part of them, and that he has any special fund for that purpose.

And they alleged also, in substance, that the relator has been paid, within the last five years, upon similar claims, in the matter of other street openings, the sum of $132,058.50, which was more than an adequate compensation, and more than he was equitably entitled to receive for all the services he has rendered, and room rent furnished in said proceedings; and that the city is entitled to set up the said excessive payment, as an offset or counter-claim, in an action for his present demands. The respondent also insists that the relator has an adequate remedy by action, if he is entitled to any remedy. The court, at Special Term, denied the several motions, on the ground, as stated in the orders, that the relator has a remedy by action.

If the relator have any claim against the city, which can be enforced either by action or mandamus, for the several demands specified in his affidavits, it must arise under, and depend upon the provisions of the statutes, relative to street openings and the laying out of said Riverside Park, to which such proceedings in street openings, so far as they affect the questions arising here, are applied. Section 189, of chapter 87, of the Laws of 1813, provides that the commissioners appointed under and by virtue of this act, for any of the purposes aforesaid, who shall enter upon the duties of their appointment, shall each be entitled to receive not more than four dollars, besides all reasonable expenses for maps, surveys and plans, clerk hire and other necessary expenses and disbursements, for each day they shall respectively be actually employed in the duties of their appointment, the same to be paid by the mayor, aldermen and commonalty of the city of New York, and included in the before-mentioned assessment upon the persons and parties, deemed to be benefited by the operation and improvement, which shall have occasioned the appointment of said commissioners. Section 12, of the act of April 20, 1839 made provision, for the taxation of the costs, charges and disbursements, provided for in the above section of the act of 1813. The act entitled, “An act to prevent fraud in the opening and laying out of streets and avenues in the city of New York,” passed April 24, 1862, provides that the compensation to the commissioners, in any proceeding thereafter to be commenced for the opening or altering of any street in the city of New York, north of Fourteenth street, shall not exceed, in the aggregate, exclusive of necessary disbursements thereinafter mentioned, the sum of thirty cents a foot for the lineal extent of the street or avenue, or the portion thereof to be opened or altered; and the fifth section of that act declares, “ that no costs, charges or expenses, of any description, shall be allowed in such proceeding, or charged on any lands affected thereby, except the compensation of the commissioners, as above limited, and their necessary disbursements for clerical services in copying, comparing or correcting said maps or profiles, extracting boundary lines from title papers, preparing the said diagrams and abstracts, and keeping proper minutes of said proceeding; and also for surveys and maps thereof, when specially directed by said court; and also for room rent actually paid, but in no case to exceed one dollar per day; for advertising, printing' or posting any notices required by law, and for any other necessary incidental expense, not exceeding $100.”

The sixth section of the same act, provides for the taxation of the bill of costs, charges and expenses, and for the notice to be given thereof.

The relator, in his several affidavits, states that he was appointed by the commissioners, their clerk, and employed by them to draft and copy their reports, “ which rendered it necessary to employ a large number of clerks and others, and to hire certain rooms, used by said commissioners and clerks.”

It was understood to be conceded on the argument, by the respective counsel, that the authority of the commissioners to appoint or employ the relator as clerk, is to be found altogether in the section of the act of 1813, above quoted, and if it were not so conceded, it is apparent that the whole of such power is derived from the language of that section and the subsequent modifications thereof, above referred to.

• It will be seen, therefore, that section 189, of the act of 1813, is simply declaratory of what the commissioners are entitled to receive from the mayor, aldermen and commonalty of the city of New York. To them is allowed a per diem for each commissioner, not exceeding four dollars per day, and their reasonable expenses for maps, surveys and plans, clerk-hire and other necessary expenses and disbursements.” The act of 1862 modifies the compensation of the commissioners, so far as to declare, that it “ shall not exceed in the aggregate, exclusive of the necessary disbursements hereinafter mentioned, the sum of thirty cents per foot for the lineal extent of the street or avenue opened;” and it defines, in the sixth section, with more precision, the “ necessary disbursements ” that may be allowed, by pointing out to what the clerical services shall be limited, and when surveys and maps thereof may be included; what sum per day, of room rent actually paid, may be allowed, and what advertising, printing and posting, and then closes the door on all other incidental expenses, beyond the limitation “ not exceeding one hundred dollars.” All these acts provide for nothing more or less than compensation to the commissioners for their own services and expenses and disbursements, all of which are to be ascertained and taxed, and paid to said commissioners, according to the provisions and restrictions of clearly expressed statutes.

Undoubtedly, the commissioners had power to employ the relator, or any one else, to perform clerical services. That power is necessarily implied in the words, “reasonable expenses ” for “ clerk-hire,” as it is stated in section 189, of the act of 1813, and in the words, “ necessary disbursements for clerical services,”- as it is expressed in the act of 1862; nor is there any doubt that such reasonable expenses and necessary disbursements, when properly and lawfully ascertained, are to be paid to the commissioners.

But it is quite another question whether power is conferred to appoint a clerk who thereby takes an official or other relation towards the city, entitling him, as an independent officer or agent, to perform duties or services for which the corporation is bound, ex ooni/ractu, or otherwise, to pay him or be subject to mandamus or action.

The phrase, “expenses of clerk-hire,” has no greater force to ‘create such relation, between the person who performs clerical service and the city, than the words horse-hire, in like connection, would have had to establish like relations between the city and the owner of a horse that might be temporarily hired. In short, the expenses of clerical services given by the law, fall, like all other necessary disbursements paid or incurred by the commissioners, into the sum to be paid to the commissioners themselves, under the general terms of “ compensation and reasonable expenses,” used in the statute.

Ho privity of contract springs up between the corporation and a person employed as clerk, or to perform any other labor, by the com ■ missioners, for the expense of whose services they are to be allowed as disbursements under the statute; nor does any other relation of privity, for such persons are bound to take notice of the law, and to see that the statute provides for payment of the expenses, incurred in their employment, to the commissioners as taxable disbursements, and that no other mode of compensation is created; and they are bound, therefore, to know that their principal is the commissioners, in whose service they are, and through whom, alone, their compensation is to be paid. If this were not so, every laborer employed by the commissioners, of whatsoever grade, and every person who furnishes any article, coming within the term, necessary disbursements,” is at liberty to sue the corporation, or mandamus its officers. It is no answer to this view, to say that it imposes too great a responsibility upon the commissioners. They take their position, cum onere, under the statute, and, besides, there is no difficulty on their part, as they may always arrange that payment of such disbursements as may be deemed burdensome, shall be made to their employes, when payment thereof shall be made to them by the corporation, in accordance with the statute.

Such disbursements are to be taxed under the statute, as a part of the bill of costs, charges and expenses allowed to the commissioners, and to be paid to them by the mayor, aldermen and commonalty of the city; and there is no provision for taxation of the items of disbursements in such bills, in favor of other officers or persons.

Ro higher right to prosecute the writ of mandamus, is given to the relator, by the fact that taxation has been made of his charges. If the taxation has been separate, in his favor, as an individual claim against the city, it is probably irregular or without effect; if as part of the reasonable expenses of the opening of the streets, in favor of the commissioners, the claim is for them to enforce, if it can be enforced at all, by suitable legal proceedings in their own names.

The fact, that, under the proceedings in the last five years for the opening' of streets, the position of clerk to the commissioners, has assumed the magnitude of a department calling for compensation equal to $50,000 a year, has no just legal effect upon the question involved in these cases. It is enough that the relator and the claim he attempts to assert, occupy no position entitling him to demand the writ of mandamus against any officer of the city.

The court below did not consider this question, as it appears not to have been presented; but if the relator has, by any possibility, a personal right of recovery against the city, it must exist in some implied assumpsit, springing out of his employment by the commissioners, for certainly there is no provision of statute for any payment to be made to him. And in this view, his remedy could be pursued by action against the corporation. Justice Fanoher, whose opinion in the court below, dissenting from the conclusion of Barrett, J., has been furnished us, recognizes the absence of privity between the relator and the corporation. He says, as his first reason why a mandamus should be issued : There is no privity of contract between the relators and the corporation; the work performed by them was performed for the commissioners, and is for the benefit of the general public, and not alone for the corporation. Nor are they employes of the corporation.”

Assenting, substantially, to the premises of the learned judge, we are unable to yield to the conclusion, that, for this reason, a mandamus will lie. No creditor has a right of action for his debt, against a debtor of his debtor, but that fact goes no distance toward establishing that such creditor may have the writ of mandamus to reach moneys owing his debtor.

They are strangers in law, and no form of proceeding is, in this State, availing to make the one directly responsible to the other. The order appealed from should be affirmed.

Order affirmed, with costs.

       See chap. 697, Laws of 1867, p. 1752, § 6.

       Valentines’ Laws, p. 1207.

         Laws of 1839, chap. 209.

       Chapter 483, Session Laws of 1862, p. 966.

       Section 1.


source: Caselaw Access Project

author: Daniels, J.:

license: Public Domain

text:
    WILLIAM O’TOOLE, Plaintiff, v. P. GARVIN and others, Defendants.

      New matter constituting a defense must be set up in the answer—chapter 381, Laws of 1833.
    Where a defendant wishes to defeat a recovery by the plaintiff, on the ground that the contract, upon which he is sued,is illegal, being- in violation of the act requiring that the designation, “& Co.” shall represent an actual partner, the necessary facts must be alleged in .the answer, as well as proved upon the trial.
    Motion for a new trial on exceptions taken at the trial of the canse at the circuit, and ordered to be heard, in the first instance, at the General Term.
    This action was brought to recover $1,140.42, for goods sold and delivered to the defendants. The defendants claimed that they bought the goods from William O’Toole & Go.; that the plaintiff was a member of such firm, and that such firm agreed to receive and had received other goods in payment. It appeared on the trial, that the plaintiff .had no partner, though he had done business under the name of O’Toole & Co. The court dismissed the complaint, on the ground that it was a violation of the law, for the plaintiff to carry on business in the name of William O’Toole & Co., when, in fact, the word “ Co.” did not represent an actual partner.

      D. M. Porter and John, L. lindsay, for the plaintiff,
    claimed the-defense that the word “ Co.” did not represent an actual partner, was new matter and should have been pleaded. ( Weaver v. Barden, 49 N. Y., 286; Code, § 149, pub. 2; Wright v. Delafield, 25 N. Y., 270; McKyring v. Bull, 16 id., 297; Kelsey v. Western, 2 Coms., 501; Field v. The Mayor, etc., 2 Seld., 179; N. Y. Cent. Ins. Co. v. Nat. Pro. Ins. Co., 20 Barb., 468 ; Button v. McCauley, 38 id., 413; Moran v. Morrissey, 18 Abb., 131; Tell v. Beyer, 38 N. Y., 161; Treadwell v. Bruder, 3 E. D. Smith, 596.) That the act bringing the case within the statute, should be explicitly averred. (Miller v. Roessler, 4 E. D. Smith, 234; Bogardus v. Trinity Church, 4 Paige, 178, 15 Wend., 11; Goelet v. Cowdrey, 1 Duer, 132; Yertore v. Wiswall, 16 How., 8; Cassard v. Hinman, 1 Bosw., 207; Nat. Bank v. Orcutt, 48 Barb., 256; N. H. & N. H. Co. v. Quintard, 6 Abb. [N. S.], 128; Philipe v. James, 3 Robt., 720.) The exceptions to the statute should have been negatived. (Williams v. The East India Co., 3 East, 192 ; Hartwell v. Root, 19 Johns., 345; The King v. Hawkins, 10 East, 216; 1 Greenleaf on Evidence, § 80; The People v. Pease, 27 N. Y., 45; Farmers' L. & T. Co. v. Curtis, 3 Seld., 470; Chautauqua Co. Bank v. Risley, 19 N. Y., 369, 381; Langworthy v. Broomley, 29 How., 92.)

      Edward D. McQa/rihy, for the defendants,
    claimed that the contract was void. (Swords v. Owen, 43 How., 184; Halett v. Novion, 14 Johns., 290; Pennington v. Townsend, 7 Wend., 276; U. S. Bank v. Owens, 2 Peters, 527.)
   Daniels, J.:

At the close of the evidence, the court directed the complaint of the plaintiff to be dismissed, because it appeared during the trial that the goods sued for, were sold and delivered by the plaintiffs, in the firm name of William O’Toole & Co., when, in fact, he carried on business individually, having no person interested or concerned with him, represented by the addition to his name, of the term, & Co. This was a violation of the provision of the statute, prohibiting persons from carrying on business under that term, when it shall represent no actual partner or partners. And for such violation the plaintiff was guilty of a misdemeanor, liable to be punished by a fine not exceeding $1,000. As the sale and delivery of the goods, were transactions within the prohibition of the statute, good reason existed for holding that no recovery for their price or value, could be had. And such was held to be the effect of a violation of these provisions, in Swords v. Owen.

But that case is distinguishable in principle from the present one, in the circumstance that there, the defense was distinctly set forth in the answer, while in the present one, the answer sets forth nothing of that kind. The complaint upon this subject, alleges the goods to have been sold and delivered by the plaintiff individually, and the answer avers that, in all the transactions alleged in the complaint, he represented himself to be one of the firm of William O’Toole & Co., and acting for such firm in those transactions. It also alleges that the defendant then believed those representations to be true, and continued to believe them, and that the firm was composed of the plaintiff and some other person or persons unknown to the defendant who ought to he joined with him as plaintiffs in the action.

This answer not only failed to set forth the defense arising out of the violation of the statute, but beyond that, it distinctly alleged in substance that no such defense existed, for it averred that the term, & Co., used by the plaintiff in his business, did represent some person or persons who were interested with the plaintiff as partners, in the transactions referred to by the complaint.

If the plaintiff transacted business, under a name and style indicating the existence of a firm, when, in fact, he carried it on individually, and in that manner, sold and delivered the goods for the price and value of which he claimed to recover in this action, that was new matter constituting an affirmative defense, which, by the provisions of the Code, should have been set forth in the answer, in order to render it available upon the trial. For, in effect, every such defense admits the sale and delivery to have taken place, substantially as alleged by the plaintiff, but avers, that, in the transactions, the plaintiff acted under a prohibited style and name. The consideration, in cases of this description, is an unlawful one, and hence, the promise is not obligatory. When that fact exists, it must be pleaded in order to render it available by way of defense.

But in the present instance, although it appeared by the proof given upon the trial, it was neither disclosed by the complaint nor the answer. The former stated the goods to have been- sold and delivered by the plaintiff individually; while the latter denied that, and averred it to have been by him, as a member of a copartnership firm. In this state of the pleadings, proof of the fact that the plaintiff, in the sale, was guilty of violating the provisions of the statute referred to, did not justify a dismissal of the complaint. That a defense, not made by the answer, appears in the proof, is not sufficient to defeat a recovery by the plaintiff, when it arises out of new matter constituting it. To have that effect, it must be alleged as well as proven. In the last case, the fact constituting the defense, by way of new matter, was proved during the trial by the plaintiff, and yet it was not allowed to defeat a recovery, because the defendant had not alleged it in his answer.

Under the system of practice prevailing before the Code, the defense considered in the last case, as well as in the present one, may have been admissible under the general issue, without having the same effect follow a general denial, as that has been provided for, by the Code. For anything was admissible, under the general issue in assumpsit, which would show that the plaintiff never had a cause of action, while under the system devised by the .Code, all new matter, constituting a defense, is required to be pleaded by the defendant.

The disposition which was made of this case at the circuit, was erroneous, because the defense which was allowed to prevail, was not alleged in the answer of the defendant. For that reason, the order directing the complaint to be dismissed, should be- set aside and a new trial ordered, with costs to abide the event.

Davis, P. J., and Daniels, J., concurred

New trial granted, costs to abide event.

       3 R. S., 5th ed., 978, §§ 42, 43.

       43 How., 176.

       Code, § 149.

       McKyring v. Bull, 16 N Y., 297, 309.

       Button v. McCauley, 38 Barb., 413; Wright v. Delafield, 25 N. Y., 266; Brazill v. Isham, 3 Kernan, 9.

       16 N. Y., 309.


author: Davis, P. J.:

text:
    THE PEOPLE ex rel. WILLIAM WADE, and said William Wade, v. JOSEPH P. STRACK.

      Term, of office—power of authority making appointment to prescribe—statutes— when, retrospective.

    By section 9, of article 2, of chapter 137, of the Laws of 1870, the board of assistant aldermen of the city of Hew York, was authorized to “ choose a president from its own members.” Held, that as the duration of the office was not declared by the law, the board had power to prescribe the term for which it should be held.
    In January, 1873, the relator was elected president of the board, by a resolution declaring him to be so elected for the year 1873. Section 6, of article 11, of chapter 335, of the Laws of 1873, after declaring that the board of aldermen and assistant aldermen, shall each elect a president from its own members, in a manner therein prescribed, provides, “and when once chosen, he can be removed, before the expiration of his term as alderman or assistant alderman, only by a vote taken on a call of the ayes and noes of four-fifths of all the members of the board.” Held, that the relator was not thereby legislated into a term of office, beyond that for which the board had chosen him, and that, upon the expiration of such term, the board was authorized to elect a president as his successor.
    Case submitted upon an agreed state of facts, under section' 372 of the Code.
    The facts are stated in the opinion.

      Henry E: Da/oies, for the relator.
    The board of assistant aider-men had no power to fix the duration of the office of their president. (Dillon on Mun. Corp., § 146, p. 269; Scudder v. City of Detroit, 13 Mich., 346; Vasen v. City of Augusta, 38 Georgia, 542.) Where no provision is made for the government of municipal bodies by law, they are governed by the ordinary rules of legislative bodies. (Barker v. City of Pittsburgh, 4 Barr., 49; Commonwealth v. Bacon, 6 S. & R., 322; Wetmore v. Story, 22 Barb., 414.)

      Charles W. Broohe, for the respondent.
   Davis, P. J.:

It appears, by the agreed statement of facts in this case, that the members of the board of assistant aldermen of the city of New York, were elected, in the fall of 1872, for the term, of two years, commencing on the first day of January following; that on the first Monday of January, 1873, the board organized by the election of the officers authorized and required by law; that at such election, the relator, William Wade, was elected president of said board by resolution, declaring him to be so elected for the year 1873; that the board thereupon proceeded to and continued to transact its business, under such organization, until and after the passage of the act, entitled An act to reorganize the local government of the city of New York,” passed April 30th, 1873.

Section 2, of article 2, of the above named act, declares that the legislative power of the corporation, shall continue to be vested in a board of aldermen and a board of assistant aldermen, who, together, shall form the common council of said city, and that from and after the 1st day of January, 1875, the board of assistant aldermen shall be abolished, and thereafter the board of aldermen shall constitute the common council.

The sixth section of the act declares that each board shall choose a president from its own members, by a call of the names of the members of the board, upon which call, each member shall announce his choice, and, when once chosen, the president can only be removed, before the expiration of his term as alderman or assistant alderman, by a vote, taken by a call of ayes -and noes, of four-fifths of all the members of the board, of which he shall have been chosen president; and the last clause of the section provides, that it “ shall not be construed to require or authorize a reorganization of the existing board of aldermen or board of assistant aldermen.”

On the 5th of January, 1874, the board of assistant aldermen adopted a resolution, that, “ at the hour of twelve of that day, the board proceed to reorganize, and that the same be made a special order for that hour;” and at the time specified, the board proceeded to elect the respondent to the office of president of the board.

The relator was not removed by a vote, taken by ayes and noes, of four-fifths of the members of the board, but the election was had upon the claim that the relator’s term of office had expired. The case states that the respondent, upon this election, claims the office of president of the board, and the right to exercise its powers and duties and emoluments. The relator claims that he is still the lawful president of the board. The relator was elected president under the provisions of the charter of 1870. The ninth section of that'charter provides that “ each board shall choose a president from its own members.” It contains no provision touching the term of office of the president; nor as to the mode of choosing, nor as to the manner of removal.

At the time of its passage, the term of office of assistant aider-men was limited to one year, but, by a subsequent amendment, the term was extended to two years, and the relator and the members of the board of which he was chosen president, were elected subsequently to the amendment. The act of 1873 introduces several new features. First, by designating how the choice of president shall be made, to wit, “by a call of the names of the members of the board, upon which call each member shall announce his choice.” Second, by making the term of office of the president, when chosen, concurrent with his term as alderman or assistant alderman. Third, by declaring how, only, he may be removed, to wit, by a vote taken by a call of the ayes and noes, of four-fifths of all the members of the board.

The section containing these provisions, superseded section 9, of the charter of 1870, and is clearly applicable to the boards existing at the time of its passage, except wherein restricted by its own, or some subsequent provision of law. The imperative language of section 6, of the charter of 1873, might perhaps have been construed to require a complete reorganization of the respective boards, by a new election of officers; and to guard against such an effect, the legislature declared that this section “ shall not be construed to require or authorize a reorganization of the existing board of aldermen or assistant aldermen.” The effect of the charter of 1873, was to leave the existing organizations of the boards precisely where it found them. It neither required nor gave authority for reorganization, nor did it diminish or enlarge any existing terms of office. Doubtless it subjected all future elections of president of the boards to its prescribed manner of choosing, its mode of removal, and its term of the office, as indicated in the section ; withholding authority for reorganization, in the manner in which that is done in the act, was equivalent to declaring such reorganization to be unlawful, and, therefore, if the board, after the passage of the act of 1873, had proceeded to reorganize by the election of a new president, during the existing term of the relator, its proceedings, however formal, would have been in violation of law, and therefore void. But there can be no doubt that the provisions of the charter of 1873, relative to the election of a president of the board, are quite as applicable to any exigency' that may arise requiring a new election, as to the original-organization of a new board. That is to say, if a vacancy in the office of president of the board occur, by death or resignation, or removal of the incumbent from the city, or any other event, the board is clothed with ample power “to choose a president from its own members,” under section 6 of the new charter. The act of making such choice would not be “ reorganizingwithin the sense in which that word is used in the act. The intent of the restriction, was to prevent the substitution of a new organization for the existing one, while the latter was in full force and operation, and not to prevent that kind of reorganization which springs from the happening of vacancies, or the ending of fixed terms of office.

It is claimed by the respondent, that his election was not made to supplant an existing officer, by removing him from a continuing term, but to fill a vacancy which had occurred from the expiration of an official term. The disposition of this case depends altogether upon the correctness of this position, and that, in turn, depends upon the question whether the resolution of the board, passed at the election of the relator, declaring him to be elected president for the yea/r 1873, was a lawful designation or limitation of his term of office. There seems to be no room for doubt, that the intention of the board was to make the relator president for one year, leaving the succession for the second year open to a further choice. Had the boaril the power to do this, or was it bound to elect once for all, and for the full period of the term of assistant alderman? If we refer to the charter of 1870, under which the board acted in electing the relator for the year 1873, we find the power of choosing the president given in the most general terms: “ Each board shall, 1st, choose a president from its. members.”

Here is no prescribed manner of choice, and no declared term of office. The choice may be by resolution, by viva voce vote, or by ballot, and there seems to be no reason to doubt that the board, under such general grant of power, may determine for itself the form of its exercise. Hay it not by the resolution, the passage of which elects the officer, prescribe the term for which he is chosen ? Where the Constitution or a statute fixes the term of an officer, there is no power in the appointing or electing body to prescribe any other term. The power must be exercised in conformity to the law, and the attempt to impose a limitation, short of the term fixed by statute, is as nugatory as would be an attempt to enlarge the term. But in this case there was no existing statute declaring a term. The sole and whole power to choose, was handed over by statute to the board, without limitation as to term, or restriction as to mode. In this state of facts, we are not at liberty to seek for analogies in the rules and practices of parliamentary or other legislative bodies, if we have general statutes applicable to the case. It will probably be found that the usage of such bodies is to choose a presiding officer for the full official term of the body itself; but such a rule, if otherwise obligatory, cannot prevail in cases where the legislature has established another and a different one. Section 8, of the general provisions of the Revised Statutes, “ respecting the appointment of officers, their qualifications, the commencement and duration of their offices,” is in these words: “Every office of which the duration is not prescribed by the Constitution, or is not or shall not be declared by law, shall be held during the pleasure of the authority making the appointment.”

The president of the board of assistant aldermen is a civil officer, chosen under authority conferred by law, and amenable, as such, to the laws of the State. At the time of the election of the relator, the office was one, of which the duration was neither prescribed by the Constitution, nor declared by law. The statute, therefore, provided that it should “ be held during the pleasure of the authority making the appointment.”

That pleasure was declared, by the resolution electing the relator, to be, that he was chosen for the year 1873. A question might have arisen whether, if there had been an attempt to remove the relator during the year 1873, the resolution could operate so to fix a term as to prevent a removal at pleasure, but that question does not arise where the period expressed has elapsed, and the appointing authority is proceeding to fill the office after the lapse of the time named.

Unless there is something to be found in the charter of 1873, which operates to extend the duration of the relator’s office, as president of the board, beyond the time prescribed in the resolution electing him, a vacancy in the office occurred on the expiration of the year 1873, which the board was at liberty to fill by an election conducted in conformity to the provisions of the new charter. It is the opinion of the learned counsel to the corporation, that this is found in the words, “ and when once chosen he can be removed before the expiration of his term as alderman or assistant alderman only by a vote taken on a call of the ayes and noes of four-fifths of all the members of the board.” This language is not retroactive. It was not designed to legislate the relator into office beyond his existing term. Its primary subject was the regulation of amotion from office, and it only follows as an incident to that subject, that it fixes the duration of future terms. It is, therefore, to carry it out of its intended channel, to hold that its effect is to enlarge the duration of an office, beyond the limitation lawfully fixed before the passage of the statute. Even if it might properly be held to prescribe the mode in which the relator could only be removed from the office, yet it would not follow that it would also prevent the expiration of his term by its own limitation, which event would render a removal both unnecessary and impossible. Statutes are not applied retrospectively by mere construction. The rule is, that they cannot have such a construction, unless so declared by express words or positive enactment, or unless a clear intent of the legislature to give them such retroactive effect, is shown by the language used. Our conclusion is that the relator was not legislated into a term of office, beyond that for which the board had chosen him ; that on the expiration of that term, his office was vacant by lapse of time, and that, until his successor was chosen, he was discharging its duty by force of the general statute, which provides for such discharge until his successor should be duly qualified;" and that the board, after such expiration of the term, was, in choosing his successor, acting upon an exigency which required no removal, and was exercising its original and lawful authority. Judgment must therefore be given for the respondent.

Daniels and Donohue, JJ., concurred.

Judgment for defendant, with costs.

       Laws of 1870, chap. 137, p. 366.

       1 R. S., 117, § 8.

       Jarvis v. Jarvis, 3 Edw., 462; Butler v. Palmer, 1 Hill, 324; Wadsworth v. Thomas, 7 Barb., 445; Johnson v. Burrill, 2 Hill, 238; Berley v. Rampacher, 5 Duer, 188; Ely v. Holton, 15 N. Y., 595; Wood v. Oakley, 11 Paige, 400; McCluskey v. Cromwell, 11 N. Y., 593.

       1 R. S., p. 117, § 9.


author: Lawrence, J.:

text:
    THE PEOPLE ex rel. GOTTLIEB GRISSLER and another v. NICHOLAS W. STUYVESANT, a Lunatic, by Henry Dudley, his Committee, and NICHOLAS W. S. CATLIN, Executor, etc., of Joseph R. Stuyvesant, Deceased.

      Bumma/ry proceedings—covenants in tease—rent.

    Certain premises were leased by S. to B. & M., who subsequently executed to S. a mortgage on the leased and other property; the rent being unpaid, S. entered into possession of the premises under a warrant of dispossession; subsequently he foreclosed the mortgage, and at the sale the premises were purchased by the relators; the deed conveying the premises, on which were the unexpired leases of B. & M., “ to have and to hold the same for the unexpired term of the said leases ”; held, that they thereby’became, in effect, the assignees of the lease of B, & M., unaffected by the previous entry of S.; that the covenant to pay rent was not extinguished; and that the relation of landlord and tenant existed between S. and the relators. S., upon his death, devised certain of the premises, in which he had a fee subject to these leases, to his son; and the others, in which he had only a leasehold interest subject to the leases, passed to his executor; held, that the rent was not thereby apportioned, but remained an entirety so far as the tenants were concerned.
    In summary proceedings, it is proper to demand interest upon the rent.
    Cbbtiobabi to review the decision of Justice J. W. Fowleb, in summary proceedings had before him, to recover the possession of land for non-payment of rent.
    Joseph R. Stuyvesant was,‘in 1867, the owner of two lots on Third avenue, New York, known as lots Nos. 158 and 160, and the lessee of two other lots on the said avenue known as lo<ts Nos. 152 and 154, and on the thirtieth of J uly of that year he leased the four lots to Browning and Moore for ten years from May 1st, 1868, at the yearly rent of $6,000, payable quarterly. On the 4th of August, 1868, the lessees made a mortgage for $20,000, on this lease and a lease of other property held by them, to Stuyvesant.
    On the 2d of April, 1869, the rent being unpaid, Stuyvesant. entered into possession of the premises under a warrant of dispossession. • On the third of April, an action was commenced to foreclose the mortgage for non-payment of interest, and, under a decree in that action, the sheriff, on the 11th of October, 1869, sold and conveyed to the relators the unexpired term of Browning and Moore, in the premises. They refused to pay rent to Stuyvesant, and on the 6th of March, 1872, proceedings to dispossess them were commenced by him, and a judgment rendered against them. A certiorari was brought by them to this court, and at a General Term, held January, 1873, the judgment was affirmed, and at the General Term, held December, 1873, the court refused leave to the relators to appeal to the Court of Appeals on the merits.
    J. R. Stuyvesant died in March, 1873, leaving a last will and testament, by which he devised all his real estate to his son, Nicholas W. Stuyvesant, and appointed Nicholas W. S. Gatlin one of his executors, who alone qualified as such.
    Nicholas W. Stuyvesant became insane before the death of the testator, and on the 24th of April, 1873, the care and custody of his person and the management of his estate, were committed to the respondent, Henry Dudley. The executor authorized Dudley to demand such portion of the rent, accruing under the terms of the lease, as might be due him, either separately or in conjunction with Dudley, wTho, thereupon, demanded the-whole of the rent due for the quarters ending May 1, August 1 and November 1,1873, with interest from the respective quarter days, and, upon the refusal of the relators to pay, proceedings for dispossession were commenced. Judgment was given in favor of the respondents.

      John J. Townsend, for the relators.

      George V. JT. Baldwin, for the respondents.
   Lawrence, J.:

In the case of these relators against Joseph R. Stuyvesant, which involved the same lease now under consideration, it was held by this court, Justice Learned delivering the opinion, that when Joseph R. Stuyvesant secured in his judgment of foreclosure, the payment of the rents, for the non-payment of which he had entered, and when he sold, as being still in force, the lease granted by him to Browning and Moore, he (Stuyvesant) waived any forfeiture which had taken place under the lease; also, that the relators, purchasing under such circumstances, became in effect the assignees of the lease, unaffected by the previous entry of Stuyvesant.

We see no reason to doubt that this view of the relation between Stuyvesant and the relators, is correct, and therefore concur in the opinion delivered in that case.

The relators then being in possession of the demised premises, as assignees of the lease, the position that they are not liable by force of the covenant to pay rent contained in the lease, and that the conventional relation of landlord and tenant did not exist between them and Joseph R. Stuyvesant, is not tenable. Nor can it be maintained that Joseph R. Stuyvesant, by the terms of his will, apportioned the rent, in the sense claimed by the relators’ counsel, between his son and his executor, by devising to the former the lots Nos. 158 and 160 Third avenue, and bequeathing to the latter the leasehold interest in the lots Nos. 152 and 154 Third avenue.

The rent remained an entirety and unapportioned, so far as the tenants were concerned. The fact that it was to be divided or distributed, after payment, between the heir-at-law and executor of Stuyvesant, was a matter which in no way affected or interfered with the rights of the relators. The whole of the rent was due from the tenants, and the whole of the rent was due to the respondents, as joint owners thereof. The tenants have no interest in the apportionment to be made between the owners of the lots in which Stuyvesant held a leasehold interest, and those which he owneu in fee. Their duty was to pay the rent when it fell due, and not to concern themselves with its distribution after payment. We see no impropriety in Mr. Dudley’s 'making a demand of the rent for the whole of the demised premises. He was authorized by the executor, Mr. Catlin, to act for him, and to take all necessary measures to collect the rent. He was authorized, as the committee of Nicholas W. Stuyvesant, to act for Stuyvesant.

The statute relating to “ Summary Proceedings,”- does not require that the demand should be made by the actual owner of the rent. It may be made by an agent duly authorized, as Dudley was in this case. Again, all that the statute requires, to give the justice before whom the proceedings are brought, jurisdiction, is that the landlord or lessor, or his legal representatives, agents or assignees, should make oath, in writing, of the facts which, under the provisions of the statute, authorize the removal of the tenant. In this case, Dudley was .the legal representative of the deceased landlord, as respected the two lots owned in fee, by the terms of the will devising those lots to N. W. Stuyvesant, for whom Dudley was the committee; and, as respected the two lots in which the landlord held a leasehold interest, he stood as the agent of the legal representative, Catlin, by virtue of the authority delegated to, or conferred upon him by Catlin. We are also of the opinion that the demand for interest on the rent was proper.

On the whole case, we are satisfied that there was no error in the proceedings before the justice, and the decision below is, therefore, affirmed, with costs.

Davis, P. J., and Daniels, J., concurred.

Decision affirmed.

       The case of The People ex rel. Gottlieb Grissler and another v. James W. Fowler, Justice, referred to above, was decided at the January term, 1873.

        John J. Townsend, for the relators.

        Douglas Campbell and Henry Hilton, for the respondents.
      Learned, J.:
      The important question in this case is as to the position which the relators hold to the defendant.
      In 1867, Stuyvesant leased for ten years, to Browning and Moore, certain premises in Hew York, for the rent of $6,000 per annum. In 1868, Browning and Moore executed to Stuyvesant, a mortgage on this leased property and other property, for $30,000 and interest to April, 1869. Stuyvesant went into possession Under a dispossession warrant. The effect of this, under some circumstances, would be to terminate the lease, but the statute provides (Laws 1843, chap. 240, § 1) that, if the unexpired term exceeds five years, the lessee may redeem within one year.
      There remained, therefore, in Browning and Moore, a right to redeem their lease by paying the rent in arrear and costs and charges. Thereupon the mortgagee, Stuyvesant, proceeded to foreclose the mortgage. This course seems to have been proper, in order to collect the amount due on the mortgage, and there was something to be foreclosed, because the mortgagors, being the lessees, held this statutory right of redemption. This foreclosure was, in some respects, unwisely conducted. The description of the property in the complaint and other proceedings, might lead one to think that the mortgage had conveyed a fee; but the relators were parties to the foreclosure, and set up in their answer, the fact of tire lease by Stuyvesant to Browning and Moore. They knew, therefore, what the interests were which Browning and Moore had mortgaged, and which Stuyvesant was foreclosing. The foreclosure proceeded to a j udgment and sale, and on that sale the relators, Grissler & Fausel, purchased and accepted the deed executed under the judgment October 11,1869; under that deed they went into possession. That deed, in form, conveys the premises, with the leases, unexpired, of Browning and Moore,‘1 to have and to hold for the unexpired term of said leases.” It is plain, therefore, that this deed conveyed to the purchasers the leases, unexpired, executed by Stuyvesant to Browning and Moore; or, since we have seen that there probably remained of the lease, prior to the foreclosure, only the statutory right of redemption, this deed conveyed that right. The judgment, however, under which the deed was executed, provided that out of the avails of the sale there should be first deducted, the rents due by Browning and Moore on the lease, before the payment to the plaintiff of the amount due on his mortgage.' By this, Stuyvesant, in effect, provided that the statutory right of redemption should be exercised, so that any purchaser at the foreclosure sale should obtain the benefit of the lease executed by Stuyvesant to Browning and Moore, free from any previous forfeiture. The amount paid on the sale under foreclosure, was $30,000, and as the lease, at the time of the aforesaid re-entry, had run only two years, the money received on the sale, must have been enough to pay the rent then in arrear, as Stuyvesant was both mortgagee and also landlord. This foreclosure sale, describing the lease as existing with the provision in the judgment for redemption from any previous forfeiture, must be held to have conveyed to G-rissler & Fausel, the lease for the unexpired term. By accepting the deed, they became practically the assignees of Browning and Moore, and tenants of Stuyvesant under his lease. This was the view taken in another litigation between these same parties. (Stuyvesant v. Grissler, 12 Abb. [N. S.], 6.) No question would probably have arisen on this point, if it had not been stated that Stuyvesant, previous to the foreclosure, had taken possession under a dispossession warrant. But when he subsequently received, in his judgment of foreclosure, the payment of the rent, for non-payment of which he had entered, and when he sold, as being still in force, the lease executed by him to Browning and Moore, he waived any forfeiture which had taken place, and the relators, purchasing under these circumstances, became, in effect, the assignees of the lease, unaffected by the previous entry. This, then, disposes of the principal question in the case. It is objected that the provisions in chapter 741, Laws of 1870, by which proceedings for dispossession may be had before any justice of the district, is “ local," and therefore unconstitutional, tinder section 16, article 3. The decision in Huber v. People (49 N. Y., 132), on which this objection mainly rests, held that the tax levy bill was a local act. It cannot, however, be claimed that chapter 741 of the Laws of 1870, being an act amendatory of the Code of Procedure, is itself a local act. The objection is that the particular provision in that act is local. But taking the definition of that word from People v. Supervisors of Chautauqua (43 N. Y., 21), a “local” act is one “which in its subjects relates but to a portion of the people of the State or to their property.” How, this provision is not limited to any portion of the people. Any one who has occasion to do so, may avail himself of the jurisdiction conferred. The Code, and the several amendments thereto, in many places contain clauses relative to tribunals, whose jurisdiction does not extend throughout the State. Title V is one instance. These clauses are not, for that reason, unconstitutional. A further objection is taken, that the affidavit, on which the proceedings were commenced, is insufficient. But it alleges the making of the lease, the length of the term, the rent, the assignment of the lease to the relators, their occupation, the non-payment of rent, the demand and notice. These allegations seem to be all that is necessary. Another question is as to .the regularity of the jury. The justice, under the statute, nominated twelve. It appeared that they had not been properly summoned. He then nominated twelve others. Only eight attended; six of those were drawn to compose the jury. It appears by Roach v. Cosine (9 Wend., 231) that it. was proper to issue a new venire, and there is nothing in the statute which affirmatively requires that the names of all who were summoned, shall be placed in the box. It would be useless to place names in the box, of persons who had, from any cause, failed to attend.
      The notice requiring the payment of the rent, was not irregular for stating the amount of interest owing upon the rent. The payment required was expressly of the “rent,” and the case of Griffin v. Clark (33 Barb., 46) is conclusive upon this point. The relators in this case, being, as we hold, the tenants of Stuyvesant, and owing him, as rent for the premises, the amount claimed, have suffered no injury. They have not been removed from the premises, but have prevented such removal by the payment of the rent which they owed. If there had been any irregularity, therefore, in the proceedings, the only injury occasioned to the relators by these proceedings would be the costs, which they have paid; as to the rent, that they ought to have paid without compulsory proceedings. The proceedings before the justice should be affirmed, with costs.
      Brady, J., concurred..
      Proceedings and judgment affirmed.

       People v. Stuyvesant, opinion of Learned, J.; see also Stuyvesant v. Grissler, 12 Abbott, N. S.

       Griffin v. Clark, 33 Barb., 46.

       At the May General Term, an application made by the relators for leave to appeal to the Court of Appeals, was granted.


text:
    JOHN J. KIERNAN, Respondent, v. FRANCIS A. ABBOTT, Impleaded with Manhattan Quotation Telegraph Company, Appellant.

      Emmination befoi'e trial—contempt—evidence.

    In this action, brought by the plaintiff to obtain an injunction against the defendants. the issue between the parties, was, in substance, whether the appellant, Abbott, surreptitiously obtained the foreign news dispatches of plaintiff, and furnished them to his co-defendant, a rival of plaintiff in business. Plaintiff procured an order for the examination of Abbott before trial. Abbott, having testified that the news he furnished to his co-defendant, was obtained by him several times each day, directly by cable from London, and that the dispatches came to a banking house in New York, was asked: “What banking house was that ? ” He refused to answer. Held, that the question was a proper one; that the plaintiff was entitled to know through what banking house the dispatches were received, in order that he might have an opportunity to call the members and clerks of the house and examine them; and that the order, adjudging the defendant guilty of a contempt, and imposing a fine and imprisonment for refusing to answer it, was proper.
    Appeal from an order at Special Term, in proceedings to examine the defendant, Abbott, before trial, adjudging him guilty of contempt, and imposing a fine and imprisonment for refusing to answer, on his examination before the referee, a question proposed by plaintiff’s counsel.

      E. P. Cowles, for the appellant.
    --, for the respondent.
   Opinion per Curiam.

Present, Davis, P. J., and Daniels and Lawrence, JJ.

Order affirmed, with costs.


text:
    CHARLES E. HILL and another v. JOHN D. McKENZIE and another.

      Conditional sale—delinery.

    Plaintiffs sold to Webb & Co., May 21st, 1867, a quantity of teas, for cash on delivery. The teas, when sent for on the twenty-fourth, were found to be in a condition requiring cooperage; and, the cartman refusing to receive them, it was arranged that he should take them to Webb & Co.’s store, and that the plaintiffs should send their cooper to do the necessary work. The bill was sent to Webb & Co. the same day, but they refused to pay it until the cooperage should be done. The next morning the cooper went to the store, but was not allowed to do the work at that time; on the same day, the plaintiffs, supposing the coopering to have been done, again sent the bill, and payment was again refused, for the same reason; about noon of that day, the defendants purchased the teas of Webb & Co., who had become insolvent. Held, that the sale was conditional; that a delivery upon such sale, vests no title in the purchaser until the cash be paid, unless the condition be waived; and that in this case there was no waiver, or intention to waive the condition of payment.
    This was an action of replevin, tried before Mr, Justice Van Brunt and a jury. The judge directed a verdict for the plaintiffs for the full amount claimed, and ordered 'the exceptions to be heard, in the first instance, at the General Term.

      Charles D. Adams, for the plaintiffs.

      Al/om C. Bradley, for the defendants.
   Opinion by Davis, P. J.

Daniels and Donohue, JJ., concurred.

Judgment ordered for the plaintiffs on the verdict.


text:
    THE TENTH NATIONAL BANK OF THE CITY OF NEW YORK v. ROBERT L. DARRAGH and ALBERT MARSH.

      Surety—admissions of principal, when admissible against—complaint dismissed— when.

    Action upon a bond given by Marsh, as principal, and Darragh, as surety, to secure to plaintiff the faithful performance of the duties of Marsh, as an officer of the bank. Marsh was guilty of a defalcation to an amount in excess of the penalty of the bond. The summons and complaint were served on both defendants, but Darragh alone appeared and answered. The court directed a verdict for the plaintiff for the penalty of the bond, with interest. The court admitted, against defendants’ objection and exception, the admissions of Marsh, showing his defalcation, made long after the transaction, and after he had ceased to be an officer of the bank; held, that this was error.

    The evidence n dt having been submitted to the jury, the judgment would be affirmed if there was sufficient legal evidence in the case to establish the liability of Darragh and justify the direction given by the court, independently of the unlawful evidence, as the court would be presumed to have acted on the legal evidence only; but as sufficient evidence did not appear in this case, to authorize the court to direct a verdict, the judgment was reversed.
    Appeal from a judgment, in favor of the plaintiff, entered upon a verdict.

      Joseph M. Dixon, for the appellant.

      E. E Faneher, for the respondents.

       Greenleaf on Evidence, § 187; 1 Phillips Ev., 194, 195, 201, 525, and cases there cited; Smith v. Whittingham, 6 Car. & P., 78; Moore v. Meacham, 10 N. Y., 207.

   Opinion by Davis, P. J.

Daniels and Donohue, JJ., concurred.

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


text:
    EUGENE KELLY and another, Respondents, v. EMANUEL BERNHEIMER and another, Appellants.

      Fraud—power of court to compel defendant to elect between inconsistent defenses.

    This action was brought to recover the price of barley, sold and delivered by the plaintiffs to the defendants. The defendants set up a warranty and a breach thereof, and that they were induced to purchase the barley by means of fraudulent representations, made by a person having charge of its sale for the plaintiffs, by which they had sustained damages, and for which they claimed an allowance. After the defendants rested, the court, upon the application of the plaintiffs’ counsel, compelled them to elect upon which of their two defenses they would proceed. Held, that this was error. The court has no power to require defendants to elect upon which of their defenses they will rely, where more than one is set forth in the answer, and evidence is given to prove their truth, unless they are so far inconsistent that they cannot properly coexist in the same transaction.
    Defendants, in support of their allegations as to fraud, offered to prove statements of Tilden, who acted as plaintiffs’ agent in selling the barley, made just before the sale, while the barley was being changed from the vessel in which it was loaded to the lighter, as to its quality, and that these statements were afterward communicated to the defendants, and acted upon by themq the court excluded the evidence. Held, that this was error.
    Appeal from a judgment in favor of the plaintiffs, entered upon the verdict of a jury, and from an order denying a motion for a new trial made on the judge's minutes.

      D. M. Porter, for the appellants.

      Aug. F. Smith, for the respondents.
   Opinion by Daniels, J.

Davis, P. J., and Donohue, J., concurred.

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


text:
    JOHN GRIERSON, Appellant, v. THOMAS F. MASON, Respondent.

      Written instrument—its object may be slwwn by farol evidence.

    This action was brought to recover moneys received by the defendant, as agent, from the sale of goods delivered to him to be sold on commission by the firm of J. S. Groper & Go. and the plaintiff, the successor in business of said firm. The defendant alleged, by way of counter-claim, his employment by the firm, for the sale of their goods, as agent, for one year, at a yearly compensation of not less than $1,500, and a failure by them, and the plaintiff as their successor, to perform the contract. The referee reported in favor of the defendant for an amount sufficient, in addition to the proceeds of sales in his hands, to pay the salary of $1,500.
    After he entered the employment of the firm, he drew up an instrument, which was, at his request, signed by the firm and delivered to him, by which it was agreed that he should have the sole and exclusive right to sell all the goods manufactured by the firm, at prices and terms to be determined by the firm, for a commission of five per c.ent, and to make return of all sales on the first of each month. The referee received evidence, against plaintiff’s objection, to show that the instrument was not intended to operate as a contract between the firm and the defendant, but was given to enable the defendant to procure advances upon the goods manufactured by the firm; held, that the evidence was properly admitted. That the design and object of an instrument in writing, even when apparently perfect as an obligation in and of itself, may be shown by parol evidence, and thus a different effect be given to it from what its contents alone would entitle it to receive.

    Appeal from a judgment in favor of the defendant, entered upon the report of a referee.

      A. O. <& JMJ. H. Ellis, for the appellant.

      JR. G. Elliott, for the respondent.

       Blossom v. Griffin, 3 Kernan, 569; Hutchins v. Hebbard, 34 N. Y., 24-26 ; Seymour v. Cowing, 1 Keyes, 532; Barker v. Bradley, 42 N. Y., 316-319; Bostwick v. Baltimore & Ohio R. R. Co., 45 id., 712.

   Opinion by Daniels, J.

Davis, P. J., and Donohue, J., concurred.

Judgment affirmed, with costs.


text:
    SEMANTHE S. ISHAM, Executrix of the Last Will and Testament of PIERREPONT ISHAM, Deceased, v. SARAH A. DAVISON and others.

      Promissory note—false representations —when a defense.

    Action upon two promissory notes, made by defendants to the order of plaintiff’s testator. Defendant set up as a defense, that the notes were given in part payment of a farm, purchased of the plaintiff’s testator; that the party selling the land for him, represented the land sold to cover a certain cedar knoll, which the defendant asserts it did not, and that damages to a much larger extent than the notes had resulted. The proof showed that the notes were given after a full knowledge of the fact of the real extent of the land, and after efforts had been made by those acting with defendants to purchase the knoll, and that after the notes came due, promises were made to pay on a note given, as those were, with full knowledge or means of knowledge of the extent of the purchase. Held,, that the law will not sustain such a defense.

      Appeal from a judgment entered in favor of the plaintiff on the verdict of a jury. This case has already been before the Court of Appeals, where it was decided that the answer interposed in the case, set up matter constituting a counter-claim and required a.reply.

      S. O. Oonable, for the appellant.

      W. P. Prentice, for the respondent.

       Weeks v. Burton, 7 Verm., 6, 7; 2 Bell, 602; 23 Wend., 200.

       52 N. Y., 237.

   Opinion by Donohue, J.

Davis, P. J., and Daniels, J., concurred.

Judgment affirmed.


text:
    JOHN STEWART OXLEY, Appellant, v. OLIVER K. KING and others, Respondents.

      Consignee — advances by.

    Tobacco was consigned to the plaintiff by S. & E., on which he made advances, the business being transacted through the defendants, who were also in advance to S. & E. To secure the defendants, S. & E. authorized them to draw on plaintiff for any balance on the shipment in his hands. Defendants drew on plaintiff for $1,000, and the draft was accepted by him for, and charged to the account of S. & E. The amount realized upon the sale of the tobacco, was not sufficient to repay the advances made by the plaintiff. Held, that the defendants were not liable for the deficiency arising upon the sale; the evidence showing that the advances were made, not to them, but to S. & E.
    Appeal from a judgment in favor of the defendants, entered upon the report of a referee.
    Tracy, Olmstead & Tracy, for the appellant.

      Beardslee dk Odie, for the respondents.
   Opinion of Donohue, J.

Davis, P. J., and Daniels, J., concurred.

Judgment affirmed.


text:
    ROBERT P. GETTY et al., Respondents, v. HENRY F. SPAULDING et al., Appellants.

      Amendments of pleading after new trial m'dered—power to aUow.

    The court has power, on special motion made on notice, to allow a supplemental and amended complaint to be served after a new trial ordered by the Court of Appeals; the facts still remaining essentially the same as alleged in the original complaint, though more minutely and particularly stated; the parties plaintiff being changed in conformity with a transfer of the interests of the original parties. That the demand.for judgment differs very materially, in the amended complaint, from that in the original, is not important, as any relief consistent with the facts may be given under section 275 of the Code.

      An appeal from an order allowing plaintiff to serve a supplemental and amended complaint, after a judgment of the Commission of Appeals, reversing a judgment of the General Term, affirming a judgment ordered for defendant at Special Term and ordering a new trial. In this case, the order allowing the amendments was twice before the General Term, and two opinions were written by Daniels, J.

      John E. Develin, for the appellants.

      F. N. Bangs, for the respondents.
   Opinions by Daniels; J.

Order affirmed.


text:
    GOTTLIEB GRISSLER and another v. JOSEPH R. STUYVESANT.

      Motion to revive action — reference—action.

    This action was brought to restrain defendant from continuing proceedings, commenced by him to recover possession of certain premises occupied by the plaintiffs. The plaintiffs obtained an injunction, giving an undertaking in the sum of $5,000. The injunction was subsequently dissolved, and defendant’s demurrer to the complaint sustained, and judgment given for costs. Defendant having died, his executor made a motion to revive the action, in order to have a reference to compute the damages under the injunction. The motion was denied, and, upon appeal, this order was affirmed, the court holding that the appellant’s representatives could obtain all them rights by bringing an action upon the •undertaking. .
    Appeal from an order, denying a motion made by the executor of defendant to revive the action.

      Douglass Campbell, for the appellant.

      John J. Townsend, for the respondents.
   Opinion by Lawrence, J.

Davis, P. J., and Daniels, J., concurred.

Order affirmed, with costs.


text:
    LAZARUS HALLGARTEN and others, Respondents, v. WILLIAM ECKERT and others, Appellants.

      Order—power of justice at Special Term to vacate.

    This action was tried before a jury, and a verdict rendered for plaintiffs; defendants appealed to the General Term, and a case was settled and served; the General Term reversed the judgment and ordered a new trial upon a specific objection; after the entry and service of the order of reversal, plaintiffs obtained an order from Mr. Justice Daniels, allowing them to apply for a resettlement of the case by striking out this exception, and an order striking it out was subsequently made by Mr. Justice Van Brunt, from which order an appeal was taken to the General Term, where it was affirmed by default; subsequently a motion was made to have the orders of Justices Daniels and Van Brunt vacated, which was denied. Held, that this was proper; that to grant the motion would be to allow one justice at Special Term to reverse and vacate the order of another justice at Special Term; that no such practice exists, nor is there any provision of the Code which permits it.
    Appeal from an order made at Special Term, denying a motion to vacate and set aside certain orders made in the case.

      Abel Crook, for the appellant.

      Lewis Sanders, for the respondent.
   Opinion by Lawrence, J.

Davis, P. J., and Daniels, J., concurred.

Order affirmed, with costs.


text:
    JOHN JAY, Receiver, etc., Respondent, v. WILLIAM H. DE GROOT and others, Appellants.
    Practice— death of pa/riy pending appeal— substitution.

    An order of the General Term, determining an appeal from an order, made when the representatives of a party, dying pending the appeal, were not properly before .the court, is irregular, and may he set aside on motion at Special Term.
    Appeal from an order of the Special Term denying a motion. The death of a party respondent, during appeal in this case, appeared only by suggestion in the points of counsel. The hearing was directed to stand over,.to enable the appellant to bring before the court the proceedings in revivor, or to bring the representatives of the deceased before the court.

      Joshua M. Van Cott, for the appellants.

      Mr. Ohatfield, for the respondent.
   Opinion by Davis, P. J.

Daniels and Donohue, JJ., concurred.


text:
    THE CONTINENTAL BANK NOTE COMPANY, Respondent, v. THE INDUSTRIAL EXHIBITION COMPANY, Appellant.

      Order of reference — long account.

    The complaint contained two counts, each for work, labor and materials. The services were performed, and materials furnished, in engraving and printing a large number of bonds, coupons and certificates. From the schedule appended to the complaint, it could not certainly be determined whether the cause was referable. Plaintiff’s agent made an_ affidavit, which was used on the motion, which stated positively that the trial of the action would require the examination of a long account. The answer was a general denial, and the affidavit of plaintiff’s agent was in-no way controverted; held, that the court had sufficient before it, to justify the making of an order referring the cause.

      Appeal from an order, made by Mr. Justice Lawrence, referring this action to a referee to hear and determine the whole issues therein.

      John L. Cadwalader, for the appellant.

      Jos. J. Marrin, for the respondent.
   Opinion by Daniels, J.

Order affirmed, with costs.


text:
    T. HASKINS DUPUY, Respondent, v. CHARLES P. WURTS, Executor of the Last Will and Testament of MARTHA P. WURTS, Deceased, Appellant.

      Metra allowance—power of court to grant.

    The Supreme Court has power, under section 318 of the Code, to grant an allowance in appeals from the Surrogate’s Court, nor is this power affected by the fact that an allowance has already been granted in the case by the surrogate.
    The case of Seguine v. Seguirte
       followed, and distinguished from the cases of Wolfe v. Van Nosirand

       and The People v. The N. T. Central B. B. Co.

       The latter cases hold that appellate courts cannot grant the allowance, because the statute gives the same, by way of indemnity, for the expense of the trial in the courts of original jurisdiction. But, by section 318 of the Code, the annellate court is, pro hoc rice, made the court of original jurisdiction.
    Appeal from an order made by Mr. Justice Brady, on the 29th of December, 1873, granting a motion for an allowance to the respondent’s attorneys, and fixing such allowance at §1,000

      8. P. Nash, for the appellant.

      F. P. Coudert, for the respondent.

       3 Abb. [N. S.], 443.

       2 N. Y., 570.

         29 id., 428.

   Opinion by Davis, P. J..

Daniels and Lawrence, JJ., concurred.

Ordered affirmed, with costs.


text:
    ROBERT HUSTON, Appellant, v. JOHN H. WEBER and others, Respondents.
    Appeal from a judgment in favor of the defendant, recovered upon a trial at circuit, without a jury. The principal point in the case, and the only one considered in the opinion delivered at the General Term, was, whether or not the plaintiff was the owner of the draft, for negligence in the collection of which, this suit was brought. The judge at the circuit held that he was not, and the General Term affirmed this decision.

      Simon Sterne, for the appellant.

      A. R. Dyett and R. W. Townsend, for the respondents.
   Opinion by Daniels, J.

Davis, P. J., and Donohue, J., concurred.

Judgment affirmed, with costs.


text:
    PHŒBE DEAS, Appellant, v. TOWNSEND WANDELL and others, Respondents.
    Appeal from a decree of the surrogate of the city and county of New York, admitting to probate the last will and testament of Jane Ann Fowler, deceased.
    Probate of the will was contested on the ground that the testatrix was of unsound mind, and that she was induced to execute the will by fraud, imposition and undue influence. The surrogate admitted the will to probate, and the General Term, after reviewing the evidence in the case, affirmed his decision.

      Ghmles Matthews, for the appellant.

      Homer A. Nelson, for the respondents.
   Opinion by Donohue, J.

Davis, P. J., and Daniels, J., concurred.

Decree affirmed.


text:
    ANSON WILLIS, Respondent, v. JAMES WEAVER, Appellant.

      Verdict—excessive damages.

    Appeal from a judgment, entered on a verdict in favor of the plaintiff, and from an order denying a motion for a new trial.
    The judgment in this case was reversed, on the ground that the verdict of the jury was excessive, aud contrary to the evidence in the case.

      E. More, for the appellant.

      William P. Chambers, for the respondent.
   Opinion by Davis, P. J.

Daniels and Donohue, JJ., concurred.

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


text:
    GILBERT T. REEDER, Appellant, v. CHARLES G. SCHNEIDER and another, Respondents.

      Specific performance—liens, discharge of, before tender

    An action for specific performance, cannot be maintained, when, at the time the contract is to be performed, there are existing liens on the premises to be conveyed, which are not provided for in the contract, although the holders agree to discharge them on receiving an assignment from the seller, of the obligation to be executed by the purchaser under the provisions of the contract to him.

      Hinckley v. Smith (51 N. Y., 21) followed.
    Appeal from a judgment of the Special Term, dismissing the plaintiff’s complaint.

      Edwa/rd T. Bartlett, for the appellant.

      Darnel T. Walden, for the respondents.
   Opinion by Lawrence, J.

Davis, P. J., and Daniels, J., concurring.

Judgment affirmed, with costs.


text:
    THE NEW YORK FLOATING DRY DOCK COMPANY, Respondent, v. EDWARD B. SEAMAN, Captain of the Port, and JAMES M. THOMPSON, one of the Harbor Masters, Appellants.
    This action is brought to restrain the defendants from removing a floating dry dock, belonging to the plaintiff, from the slip adjoining pier No. 49. The plaintiff procured a temporary injunction, and, upon appeal to the General Term, the court decided to continue the injunction until the cause could be tried. No reasons were assigned.

      William Allen Butler, for the appellants.

      jK O'. Benedict, for the respondent.
   Opinion by Lawbence, J.

Daniels, J., concurred.


text:
    HENRY V. POOR, Respondent, v. HENRY C. BOWEN, Appellant.
    Appeal from a judgment in the Supreme Court, entered on the report of a referee in favor of the plaintiff.
    “The case is so purely one of fact, on which the referee has found, that it cannot be disturbed.”

      George O. Holt, for the appellant.

      Isaac V. French, for the respondent.
   Opinion by Donohue, J.

Davis, P. J., and Daniels, J., concurred.

Judgment affirmed.


text:
    THE PEOPLE ex rel. JOHN T. BAKER, v. THE BOARD OF APPORTIONMENT.

      Appeal papers—correction of—when not allowed, after argument.

    A motion for leave to amend appeal papers after argument and decision at General Term, on the ground that the correction of a mistake therein, would show that a point decided against the applicant, had been waived, will be denied when it appears that the point was argued, and the applicant supposed it not well taken, and, on the decision, finding himself mistaken, made the application for the correction.
    Motion for leave to amend appeal papers.
   Opinion by Donohue, J.

Motion denied.


text:
    JULIUS A. CANDEE, Assignee, etc., of De Witt C. Weeks, Respondent, v. WALTER KEELER, Appellant.
    In this case, the clerk of the court states that the opinion of Donohue, J., has been lost.

      Alfred Melnbvre, for the appellant.

      Luther R. Marsh, for the respondent.
   Judgment affirmed.


text:
    THE QUASSAIC NATIONAL BANK OF NEWBURGH, Appellant, v. CHARLOTTE A. WADDELL, Respondent.

      Maoried women—separate estate, when hound—ca/rrying on business.

    Where the consideration of a debt contracted by a married woman is one going to the direct benefit of her'estate, or for the benefit of herself on the credit of her estate, the intention to charge the separate estate need not be stated in the contract or instrument evidencing the indebtedness.
    Defendant, a married woman, having a separate estate, opened a bank, account with plaintiff in 1860, receiving a pass-book, and depositing money to her credit either by separate deposits made by her or the proceeds of her own notes discounted for her by the bank, which money she drew out from time to time by check. The account was continued until 1863, when the note in suit was given for the balance due to the plaintiff upon the account. The referee found that the notes, for which the note in suit was given, were discounted on the credit of her separate estate and for her benefit

      Held, that she was liable upon the note.
    A part of the money borrowed by defendant was so borrowed to pay interest on mortgages on real estate belonging to her. Held., that this was a debt created for the benefit of her separate estate.
    Defendant owned, as her separate property, a place near Newburgh, of twenty acres, which she managed herself, buying what was necessary for it, paying for such purchases sometimes in money, sometimes by check and sometimes by note, and hiring persons to work on the place.
    Whether or not this was a business within the act of 1862, queret

      Appeal from a judgment in favor of the defendant entered upon the report of a referee. The facts are stated in the opinion.

      EL. R. Anderson and R. E. Deyo, for the appellants,
    claimed that the defendant was liable, because the debts were contracted on the credit of her separate estate and for her own benefit .(Gardner v. Gardner, 7 Paige, 112; S. C., 22 Wend., 526; Jaques v. Methodist Episcopal Church, 17 Johns., 548; S. C., 3 John. Ch., 77; Yale v. Dederer, 18 N. Y., 265; Colvin v. Currier, 22 Barb., 371; Fireman's Ins. Co. v. Bay, 4 id., 414; Albany Fire Ins. Co. v. Ray, 4 N. Y., 9; Owen v. Qawley, 42 Barb., 105-118; S. C., 36 N. Y., 600), and that, where such was the case, the intention to charge the separate estate need not be stated in the contract. (North American Goal Co. v. Dyett, 7 Paige, 9; S. C., 20 Wend., 570; Gwrtis v. Engel, 2 Sandf: Ch., 287; BalUn v. Dillaye, 37 N. Y., 35-37, 38.)

      James M. Smith, for the respondent,
    insisted that the intention to charge her separate estate should appear in the note, and that it could not be proved by parol. (Yale v. Dederer, 22 N. Y., 456; White v. McNett, 33 id., 371; Second National Bcmlc of Wathins v. Miller, 2 N. Y. Sup. Ct. Rep., 104; Shorter v. Wilson, 4 Bans., 114.)
   Davis, P. J.:

This action was brought on a promissory note, made by the defendant, for a balance due on her general bank account with plaintiff.

The learned referee has found that, at the time of the several 7 transactions between the bank and the defendant, the defendant was a married woman and wife of one William O. H. Waddell, and owned a house and about twenty acres of land at Newburgh; that prior to 1860, she had been in the habit of occasionally getting a note discounted at plaintiff’s bank for her own benefit; that in the year I860,, she opened a bank account, receiving a pass-book, and depositing money to her credit either by separate deposits made by her, or the proceeds of her own notes discounted for her by the bank, which money she drew out from time to time by check; that she managed her place, at Newburgh, herself, buying what was necessary for it and paying for such purchases sometimes in money, sometimes by check upon the plaintiff, and sometimes by her own note; that she hired persons to work upon the said place, repairing her house and ground, and paid the persons so employed herself, by check or her note, or in money; that she was living with her husband; that he was away during the week, returning on Saturday and remaining till Monday or Tuesday; and that he did something for the support of the family; that at the time of obtaining the loan at plaintiff’s bank, the defendant stated that said place was hers, and she was carrying it on and wanted to open an account with plaintiff; that she obtained money of plaintiff by discount of her own note, which moneys she stated were to be used for the business purposes of her place, and on one occasion to pay interest upon mortgages then upon the said place, and the notes thus discounted for the defendant by the plaintiff were discounted on the credit of her said separate estate and for her benefit; that the account so opened at the bank was continued from 1860 to the time the note in suit was given, a period of about three years; that subsequently to opening the account she gave a chattel mortgage on the furniture in her house, which was her separate estate, to secure the moneys then or thereafter to be advanced, but nothing was realized on that mortgage; that she also gave a mortgage on her real estate, on which was realized a small surplus on the sale of the property on a prior mortgage; that defendant’s place was wholly managed by herself, and that such management consisted in the usual superintendence and direction of a household and of outdoor farm laborers and servants; that defendant did not carry on any trade or business during the period of her dealings with plaintiff ; that she had sources of income irrespective of her said property at "Newburgh, and that there was no evidence satisfactorily showing that any of the specific sums of money obtained by defendant of plaintiff were ever used for the benefit of the defendant’s separate estate.”

And upon these facts the referee reported, as a conclusion of law, that plaintiff was not entitled to any relief, and that defendant was entitled to judgment, with costs.

It is very apparent, from the facts found in this case, that the debt of the defendant to plaintiff was contracted on the credit of her separate estate and for her own benefit. She did not, in respect to it, occupy in any sense the relation of surety, but was in all respects the principal debtor. The question is not, therefore, the one involved in Yale v. Dederer, where it was sought to charge the separate estate of a married woman for a debt created in no way for the benefit of such estate, but as surety merely for her husband.” That case adjudged that, to charge the separate estate under such circumstances, the intention so to charge must be expressed in the note or instrument, or indicated in such form as to create a specific charge. The judges who pronounced the several opinions of the court, recognize a different rule where the debt is created by the wife herself for the benefit of her separate estate or on its credit. Judge Harris says: “I think the equitable rule is that which has been invariably adopted in this State, which is, that where the intention to create the charge has not been expressed, and can only be implied from the fact that she has become indebted either individually or jointly with her husband, it must appear that the debt was contracted for the benefit of her separate estate, or for her own benefit, upon the credit of her separate estate, before the estate can be charged with its paymentand when the case came a second time before the court, Judge Selden said: “ It is plain that no debt can be a charge which is not connected by agreement, either express or implied, with the estate. If contracted for. the direct benefit of the estate itself, it would of course become a lien upon a well-founded principle that the parties so intended, and in analogy to the doctrine of equitable mortgage for purchase money.”

Before our “ married woman ” statutes, it. was the settled doctrine of courts of equity that where the consideration of a debt contracted by a married woman is one going to the direct benefit of her estate or for the benefit of herself on the credit of her estate, the intention to charge the separate estate need not be stated in the contract or instrument evidencing the indebtedness.

In the North American Coal Co. v Dyett, the Chancellor held that a feme covert as to her separate estate is to be considered as a feme sole, and may bind such separate estate for the payment of debts contracted for its benefit or for her own benefit, upon the credit of her separate estate. The ease was affirmed in the Court of Errors.

The same rule was repeated by the Chancellor in Gardner v. Gardner ; and in the same case, when reversed on other points in the Court of Errors, Cowen, J., says: The better opinion is, that separate debts, contracted by her expressly on her own account, shall in all cases be considered an appointment or appropriation for the benefit of the creditor as to so much of her separate estate as is sufficient to pay the debt.”

Vice-Chancellor Sandfokd reiterates this rule in Curtís v. Engel, saying that “ it must be shown that the debt was contracted for the benefit of her separate estate, or for her own benefit upon the credit of the separate estate.” Yale v. Dederer does not conflict with these cases, but distinguishes and approves them, and they are recognized as correct expositions of the law in the later cases.

In the last of these cases, Hunt, Commissioner, says: “ Under our decision the liability arises ipso faeto where the debt is for the benefit of her estate. Where she incurs the liability for another, there is required then the further condition that the intent to make the charge must be declared in the contract creating the indebtedness.”

In the case before us, Mrs. Waddell undisputedly contracted the debt for herself. She received the moneys, or checked against them, for her own use. She availed herself of the credit which the ownership and posséssion of a separate estate conferred upon her and incurred the indebtedness with knowledge that the bank was giving credit to herself alone, relying upon her separate estate as the source of payment. And so the learned referee has found, upon abundant evidence, that the notes (for which the note in suit was given) were discounted on the credit of her separate estate and for her benefit.

This brings the case directly within one of the alternatives of the rule in equity, as settled by the authorities above cited.

The complaint in the case contains averments sufficient to uphold a judgment in the nature of the equitable decree rendered in the several suits in chancery above referred to; and it is settled that, under our present system, the party is not to be turned out of court because his prayer for judgment indicates a conception on his part that his remedy is a legal rather than an equitable one.

It may be added that the evidence in this case showed, and the referee has found, that a part of the money borrowed by defendant was so borrowed to pay interest on mortgages of her real estate. This having been done on her separate credit cannot well be otherwise held than to have been a debt created for the benefit of her separate estate.

The finding of the referee, that “ there is no evidence satisfactorily showing that any of the specific sums of money obtained by the defendant of the plaintiff was ever used for the benefit of the defendant’s separate estate ” seems to have led him to the conclusion that this action could not be maintained. The finding is not that in fact the money was not so used, but that there is an absence of satisfactory evidence of such fact. The presumption upon the other facts found by the referee, and from the testimony as to what transpired at the time the bank account was opened, is very strong that the money was used for her separate estate, and if the fact itself was very material, it devolved upon the defendant to rebut the presumption. But we think the fact not material where it clearly appears that the debt was created by the married woman as her individual debt, for her own benefit, on the credit of her separate estate.

We think, also, that there was sufficient evidence to render the defendant liable in this case at lam), as a feme sole, under the existing statutes.

The statutes provide that a married woman may carry on any trade or business on her sole, separate account; and the third section of the act of 1862: gives to any married woman, possessed of real estate as her separate property, the right to do any act, with reference to the same, with like effect as if she were unmarried; and the seventh section of the same act declares that any married woman, while married, may sue and be sued, in all matters having relation to her sole and separate property, in the same manner as if she were sole.

The defendant owned, as her separate property, a place at or near Newburgh, of twenty acres. The referee has found that she managed her said place herself, buying what was necessary for it, paying for such purchases sometimes in money, sometimes by check on plaintiff, and sometimes by her note; ” that she hired persons to work on her said place, repairing her house and grounds, paying them in like manner; and again, in the eleventh finding, that the said place was wholly managed by the defendant, and that such management consisted in the usual superintendence and direction of a household, and of the out-door farm laborers and servants.”

But he finds also that she “ did not carry on any trade or business during the period of her dealings with plaintiff.” This last finding should be construed as intending to find that what she did, on and about her place, was not a trade or business within the meaning of the statute.

We think the carrying on of such a place, if managed as a farm, involving the necessity of employing and paying farm laborers, may be a business within the meaning of the statute. Farming is not only a business, but as important a one as any other occupation, a-nd we should have no difficulty in holding that a married woman who carries on farming is within the protection of the statute, and subject to its liabilities.

But, under the third and seventh sections of the act of 1862, a married woman owning real estate as her separate property is empowered to do any act in reference to it as if she were unmarried, and she “ may sue and be sued, in all matters having relation to her sole and separate property,” in the same manner as if she were sole. If, therefore, she can carry on a place like that of Mrs. Waddell, employing labor, improving and cultivating as a farm or otherwise her separate property, it is not easy to see why she may not be sued upon a note given to borrow money, which she avows is to be used for such purposes, and, a fortiori, why she is not liable for moneys borrowed to pay off incumbrances on her property.

The law takes off for her protection all the embarrassment of the married relation in respect of separate real estate, and makes her in regard to it a feme sole, pro hae vice, and it continues that peculiar condition in all matters having relation to such separate property as well when she is sued as when she sues.

The judgment should he reversed and a new trial granted, with costs to abide event.

Daniels and Westbrook, JJ., concurred.

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

       18 N. Y., 265; Id., 22 id., 450.

      18 N. Y., p. 284.

         22 N. Y., 460.

       7 Paige, 9.

       20 Wend., 570.

       7 Page, 112.

         3 Sandford Ch., 287.

       Ballin v. Dillaye, 37 N. Y., 35 ; Corn Exchange Insurance Co. v. Babcock, 43 id., 613.

       Phillips v. Gorham, 17 N. Y., 270 ; 23 id., 357; Corn Ex. Ins. Co. v Babcock, 42 id., 646; 20 id., 62; 24 id., 45.

       Gardner v. Gardner, 7 Paige, 112; 1 White & Tudor’s Leading Cases in Equity 324.

         Chapter 172, p. 343.

       Frecking v. Roland, 53 N. Y., 422.