text:
    ELBERT STANNARD, Appellant, Impleaded with DANIEL BUHLER, v. CHARLES E. HUBBELL and GEORGE A. PORTER, Impleaded with DANIEL W. RICHARDS and MORTON B. SMITH, Respondents.
    Res adjudicata — questions within the scope of the pleadings which cm not passed upon.

    Although the pleadings in an action are broad enough to permit the litigation and decision of a question existing between the parties, yet where no litigation or decision involving such question takes place, and the judgment expressly provides that such question is left open, the rule of law that a judgment binds parties and privies, not only as to facts actually litigated, but also as to those facts which might have been litigated in the action, does not apply.
    Appeal by the plaintiff Albert Stanuard from an order confirming the report of a referee, entered in the office of the clerk of the county of Kings on or about the 12th day of April, 1889.
    The action was brought to obtain an adjudication that the hulls of certain vessels be sold at public auction in accordance with an alleged agreement made between certain parties to the action.

      The contract, which bore date October 13, 1883,'provided that certain ships bought from the government were to be stripped of all the material so far as practicable; that the hulls were to be advertised for sale ; that Messrs. Hubbell and Porter were to pajil,500 as a bonus to Captain Standard for taking charge of the breaking up of the ships'; it also contained other provisions relating to the allowance of five dollars a day to Captain Stannard, and fixed the interests of Messrs. Hubbell and Porter each at one-sixth in the purchase of the ships, and in the proceeds received from the sale thereof; and also contained other provisions.

      A. H. Dyett, for the appellant.

      William £r. Tracy, for the respondents.
   Barnard, P. J. :

The agreement between the parties contained this clause: “ Hubbell and Porter are to pay fifteen hundred dollars, as a bonus, to Captain Sherwood for taking charge of the breaking up of the ships:”

It was claimed by Hubbell and Porter that this clause was abrogated. The original judgment for distribution of fund and settling rights of parties in other respects left this question open, and it was referred by agreement to hear and determine. The referee found the clause abrogated, and the report was confirmed and final judgment entered thereon. It appears that Hubbell and Porter commenced an action in Onondaga county, against the present plaintiffs and others, in respect to the same property referred to in this agreement, and their complaint was dismissed on the merits. This clause was not actually litigated, and the judgment, as amended, provided that the question of the abrogation of this clause be left open and neither party be prejudiced by the judgment given. .The original judgment was rendered in September, 1885, and the modification made in June, 188J. Both the judgment in Kings county and the Onondaga judgment left open this question, and neither party appealed from the order of reference in Kings county. The question is not res adguMoata. The parties were not the same. The adjudication of the $1,500 clause was not actually litigated in either action. Neither party appealed from either judgment, as modified, by leaving open this clause for future debate and contest. No case, I think, holds that pleadings in an action broad enough to permit a litigation on a certain question which was not made, and when the judgment leaves the question open, is subject to the rule of law that a judgment binds parties and privies, not only as to facts actuating litigation, but also as to those facts which might have been litigated in the action. The case is not one where the Special Term arrested a judgment pending appeal, as was the case in Genet v. Delaware and Hudson Canal Company (113 N. Y., 472); nor like Bostwick v. Abbott (16 Abb. Pr., 419), where a judgment was a bar to a new action on the merits, but the court ordered that the judgment should not prejudice a new action. Here the judgments are so drawn as to leave out the very subject involved in the present proceeding. The judgment cannot be res adjudícala, as to those matters it refuses to decide, where neither party appeals from the determination. The evidence supports the finding as one of fact. The consideration for the abrogation of the clause was that Hubbell and Porter should induce one Clancy, who had a joint interest with the parties, to sell out the same to the plaintiff Sherwood. Hubbell so testifies they -were willing to abrogate or cancel the clause, * * * that we should go to work in good faith and help them out of their trouble with Clancy.” The witness, Porter, stated that “the $1,500 clause was most thoroughly understood to be abrogated.” A witness, Smith, testifies that he heard Buhler say to Sherwood that the $1,500 clause had heen abrogated. Another witness, one Richards, testifies that he heard Sherwood claim that the agreement, except the $1,500 clause, was still in force. There is direct proof going to sustain the clause, and a strong inference for the unreasonableness of the agreement, which was the consideration of the new agreement destroying the clause.

The case on appeal is subject to the rule as to findings of fact. The dispute, when the testimony is so conflicting as it is in this case, must be decreed settled by the finding of the trial court therein.

The order appealed from should, therefore, be affirmed, with costs.

Pratt, J., concurred.

Order affirmed, with costs.


source: Caselaw Access Project

author: Learned, P. J.:

license: Public Domain

text:
    CORNELIA BLAKE, Respondent, v. FANNIE EVERMAN, Otherwise Known as FANNIE BLAKE, Appellant.

      Alienating a husband’s affections■ — place of trial of an action brought to recover damages therefor.

    In an action brought by a married woman to recover damages for the alleged alienation of the affections of her husband, the defendant, if she be liable in the action, has been guilty of a crime, and unless there are strong reasons to the contrary, the trial of the action should take place in the county in which she would be tried under an indictment for the crime.
    Appeal by the defendant Fannie Everman from an order made at Special Term, and entered in the office of the clerk of "Warren county on the 9th day of October, 1888, denying the defendant’s motion to change the venue of this action from the county of Warren to the county of Livingston.
    The action was brought to recover damages for the alleged willful and malicious action on the part of the defendant, in alienating the affections of the plaintiff’s husband, which act was alleged in the complaint to have taken place at Dansville, in the county of Livingston, in this State. .

      Andrew Hamilton, for the appellant.

      D. 8. Potter, for the respondent.
   Learned, P. J.:

This is an appeal from an order denying a motion to change the place of trial. The action is brought by the wife of one Jonas J. Blake for the alleged alienation of his affections by the defendant. The defendant had gone through the marriage ceremony with plaintiff’s husband, and claims to have done so, believing him to be unmarried.

The defendant resides in Livingston county, and that ceremony was performed there. The plaintiff resides in Warren county. The defendant, to obtain the change of place of trial, stipulates to admit the plaintiff’s marriage and her receiving the affections of her husband and support from him, etc. The alleged cause of action arose in Livingston county, because it is there that the defendant is averred to have enticed the plaintiff’s husband and to have married him. Evidently the questions to be litigated are whether defendant knew Blake to be a married man, and whether with such knowledge she enticed said Blake and alienated his affections from plaintiff. The defendant admits that she had heard rumors that Blake was married, and that she wrote to him to inquire how this was. She avers that he told her he was divorced, on which she said that she could not marry him; that afterwards he told her his wife was dead, and thereupon she married him. It appears that a former action for the same cause was commenced in 1886, in which the complaint was dismissed. The place of trial was Livingston county.

If the defendant is liable in this action, then it would follow that she has been guilty of a crime under section 301, Penal Code. For. such a crime she would be tried, if anywhere, in Livingston county. It would seem fair, unless .there were strong reasons to the contrary, that she should be allowed to defend this action in the same county, In motions of this kind it is well known that the parties seldom need all the witnesses whose names are given in the affidavits. We must act upon this knowledge and upon our judgment both in regard to the convenience of the witnesses who will be called, and also in regard to the other matters mentioned'in Rule 48, and “the ends of justice.” (Code of Civil Procedure, sub. 3, § 981.) We are reluctant to interfere with the discretion exercised by the court below in cases of this kind. But in the present instance, on a careful examination of the papers and a consideration of the number of witnesses who will be called, we think that the defendant’s motion should be granted.

Order reversed, with ten dollars costs and printing disbursements, and motion granted, with ten dollars costs, all to abide the event.

Landon and Mayham, JJ., concurred

Order reversed with ten dollars costs and printing disbursements, and motion granted, with ten dollars costs, all to abide event.


author: Learned, P, J.:

text:
    SARAH OWEN, Respondent, v. EDWIN M. KELLOGG, as Receiver, etc., Appellant, Impleaded with THE HOMŒOPATHIC MUTUAL LIFE INSURANCE COMPANY.

      Receiver of a corporation — when not liable to a creditor (failing to presenthis claim), although he has a suit against the cmporation pending at thejime of the receiver's appointment — ■ Code of Givil Procedure, see. 756.
    Where a party, having a claim in suit against a corporation for which a receiver is appointed pending the action, has had notice of the time when claims were to be presented to the receiver, pursuant to the advertisement therefor, and has been served personally with notice to present the claim, and has presented no claim to the receiver, the court will not, after the receiver, in due course of distribution, has distributed the assets of the corporation, reserving only enough to meet his expenses, make the receiver a party to the action which was pending against the corporation at the time of his appointment.
    It cannot properly be said that there is “a devolution of liability,” under section 756 of the Code of Civil Procedure, when a receiver is appointed on the voluntary dissolution of a corporation; his duty is to distribute the assets of the corporation in the manner prescribed by law, but he does not become liable for its debts.
    Appeal by the defendant Edwin M. Kellogg, the receiver of the Homoeopathic Mutual Life Insurance Company, from an order made • at a Special Term held in Saratoga county on the 1st day of April, 1890, and eutered in the office of the clerk of that county on the 22d day of April, 1890, substituting him as defendant in the place and stead of the Homoeopathic Mutual Life Insurance Company of New York in the above-entitled action.
    The action was brought by the plaintiff against the Homoeopathic Mutual Life Insurance Company to obtain an adjudication restoring a policy of insurance which had been canceled; such .cancellation was claimed by the plaintiff to have been procured from her by means of false representations made to her on behalf of the company. After the joinder of issue in the action the insurance company instituted voluntary proceedings for its dissolution, in which proceedings it was dissolved and Edwin M. Kellogg, the appellant, was appointed the receiver thereof.

      William 3. Arnoux, for the appellant.

      William 3. McCall, for the respondent.
   Learned, P, J.:

It cannot be properly said that there is a “ devolution of liability ” when a receiver is appointed on the voluntary dissolution of a corporation. He does not become liable for the debts. His duty is to distribute the assets in the manner prescribed by law.

Possibly there may be cases where, for the purpose of determining the existence or the amount of a debt, he could be made a party to an action previously pending against the corporation. Though we do not see why, in most instances, those matters could .not be determined in the proceeding under the statute in which the receiver was appointed. But however that may be, in the present case the receiver had advertised for claims under the statute; he had even served the plaintiff and her attorney personally with notice to present their claim; the plaintiff had presented no claim, and the receiver, under the statute, had distributed the assets, reserving only enough to meet his expenses. After all this the present motion was made. Nnder these circumstances it would be unjust, by making him a party to this action, to throw on him the expense of litigation, especially when there are no assets from which to pay the claim, should the plaintiff be successful.

The plaintiff urges that the question, how the debt is to be paid, if proved, is not before us; that that need not be determined until the plaintiff shall have succeeded in the action. But clearly the only hope of the plaintiff must be, under the circumstances, to compel the receiver to pay from his own funds. On what ground that could be urged we do not know. And at any rate we ought .not to expose the receiver, who has followed the directions of the statute and has thus discharged his duty properly, to the expense of defending the action and to the risk of some attempt to make him personally liable.

The. plaintiff had full notice of the time when claims were to be presented. If she had presented this claim, and any question had arisen whether it could be passed upon otherwise than in a formal action, she might, at that time, have made this motion. Then the receiver was in possession of funds and had not made his distribution. But whatever might have been done at that time, the plaintiff is now too late.

The order is reversed, with ten dollars costs and printing disbursements.

Landon and Mayham, JJ., concurred.

Order reversed, with ten dollars costs and printing disbursements, and motion denied, with ten dollars costs.


text:
    A. PAUL DUNN, Appellant, v. FREDERICK C. HERBS and MAGNUS D. HERBS, Respondents, Impleaded with AUGUSTUS GIGON and Others.

      Judicial sale —purchase made under a misapprehension, not enforced.

    In judicial sales the utmost fairness will be observed, and the purchaser will not be compelled to complete his purchase when he has bid at the sale under an honest misapprehension, and has subsequently discovered that he has not bought the property for which he supposed he was bidding, and at once applies for relief.
    Appeal by A Paul Dunn, the plaintiff, from an order made at Special Term, and entered in the office of the clerk of the county of Ulster on the 1st day of February, 1890, which, on motion of the defendants, Frederick O. Herbs and Magnus D. Herbs, vacated and set aside a sale made by a referee in the above-entitled action.
    The action was brought for the foreclosure of a mortgage, and a sale was had under a judgment entered therein, at which the mortgaged premises were purchased by Frederick O. Herbs and Magnus D. Herbs. It was claimed by the purchasers, on the application to vacate the sale, that it was supposed by them that they were purchasing land adjacent to and used in connection with the mortgaged premises, and which, as they believed at the time of the purchase, was part thereof.

      WilUann loimsbery, for the appellant.

      Chancellor Hawver, for the respondents..
   Learned, P. J.:

This order should be affirmed.

The purchasers bid off two pieces of property, sold together, one of a little less than three acres, the other described to be eighty-nine acres. By an honest misapprehension they supposed the piece of eighty-nine acres to be one which belongs to the plaintiff, but which was, in fact, not sold. The piece which the purchasers, in fact, bought is of much less value than that which they supposed they were buying, and contains, as would seem, eight or nine acres, not-eighty-nine.

The utmost fairness must be observed in judicial sales; and a purchaser will not be compelled to complete his sale when he has bid under an honest misapprehension, and discovers that he has not bought the property for which he thought he was bidding, and at once applies for relief.

"We do not say that the plaintiff intended to deceive. But probably the selling of the two pieces together tended to lead the purchasers into the mistake which they made.

Order affirmed, with ten dollars costs and printing disbursements.

Landon and Mayham, JJ\, concurred.

Order affirmed, with ten dollars costs and printing disbursements.


text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. JOEL B. MORRISON, Appellant, v. THE BOARD OF SUPERVISORS OF THE COUNTY OF HAMILTON, Respondent.

      Board of supervisors — acts quasi judicially, and also as the debtor, in the audit of county claims — it may be compelled by mandamus to pay a claim in full — a pcw'ty accepting the amount to which his claim has been reduced, when not estopped from enforcing payment of the balance.

    Although, in auditing claims against the county a board of supervisors acts judicially, yet where no question of fact exists, where the amount of services_rendered is undisputed, and where the rate of compensation is established by law or by an undisputed contract, so that on the facts a clear, unquestionable duty exists that the board should pay the claim, the board cannot reduce the amount of such claim upon the ground that it is a quasi-judicial tribunal.
    The action of the board of supervisors in refusing to allow a claim under such circumstances is not reviewable alone by certiorari ; but as the board is the party, or the representative of the party, which owes the debt, a mandamus will issue in favor of the plaintiff to compel performance by the board of its duty in respect to the payment of such claim.
    Where a party, having several claims against a county, receives a check from the county treasurer covering the audit by the board of supervisors of such claims, he is-not precluded thereby from applying for a mcmdamus to compel the payment of one of the claims which has been unlawfully reduced by the board, although such amount to which the claim has been reduced is included in the check accepted by him.
    Appeal by the relator, Joel B. Morrison, from an order made at Special Term, and entered in the office of the clerk of the county of Fulton on the 19tli day of December, 1889, witb notice that the appellant intended to bring up for review upon sucb appeal the proceedings, rulings and decision bad and made at the Special Term of tbis court by which said order was granted.
    The order appealed from denied an application for a peremptory writ of mcmdamus to. require the Board of Supervisors of the County of Hamilton to audit and allow, and provide for the payment of, the claim of Joel B. Morrison, the petitioner and relator, to the amount of $360, witb interest thereon. The claim was alleged to have arisen in pursuance of a contract made by the relator witb the Board of Supervisors of the County of Hamilton, whereby the newspaper, “ Adirondack Herald,” printed and published in the county of Hamilton, of which the relator was owner and editor, was designated as one of the official newspapers of the county.

      Clarence W. Smith, for the appellant.

      John M. Carroll, for the respondent.
   Learned, P. J.:

A board of supervisors has a two-fold position. It is a tribunal for passing upon claims against the county, and it is also the representative of the county against which the claims are presented. And because it is such representative the court may properly compel the board to pay claims when there is no question of fact to be decided, and where such payment is a plain matter of duty and not of discretion.

There is no dispute about the facts in this case. The board designated two papers, one of which is the relator’s, to do the public printing, and it established the price to be paid. The comptroller sent to the relator’s paper the redemption list (so-called) of lands sold, to be published as required by law. The relator published the list, as was his duty. He rendered a bill to the board for printing, which included an item of $420 for the jniblishing of this list. The board allowed the bill, except that for the jniblishing of this list they allowed only sixty dollars. The total amount allowed was $686.50, for which the clerk gave him a check, which was jiaid. He now seeks by mamda/mus to comjiel the payment of the balance, $360.

The first jioint made by the defendant is that under chapter 515, Laws of 1886, the relator’s jiajier was not jirojierly designated. No such allegation is made in the ojijiosing affidavits. And it will be seen by that law that in a certain case the board may designate the jiapers by resolution. "We ought not to assume, with no proof as to the subject, that this case did not exist.

In the case of People ex rel. Thompson v. Supervisors of Hamilton County (73 N. Y., 604), the question was whether, under chapter 662, Laws of 1870, the supervisors had jiower to determine whether there should be one or more newsjiapers designated. The court held that the board had this power, and that, as it had designated one only, the comptroller was not authorized to jmblish in another also. But in this case two papers were designated; no question was made as to tlie manner of designation ; the relator has acted thereon, and the defendant does not now set up any facts showing that a designation by resolution was not proper. It is true that the language of the resolution is: “ To do the • public printing,” while the language of the act of 1886 is : “ To publish the laws.” But it is plain that the publication of the Session Laws was intended. Such publication was included in the relator’s bill and was paid by the defendant; and in its opposing affidavits it makes no claim that the resolution did not include the publication of the Session Laws. It was its duty to make a designation, and it made no other than this. The words “ public printing ” are broad enough to include the publication of the Session Laws.

The next point of the defendant is' that in auditing and allowing the relator’s bill at sixty dollars it acted judicially and its determination is conclusive. It must be conceded that where a question of fact is to be determined by the board, such as the amount of work done for which a claim is made or the value of such work and the like, there the board has a right to decide, and mandamus will not lie. But, on the other hand, where no question of fact exists, where the amount of services rendered is undisputed, and where the rate of compensation is established by law or by undisputed contract, so that on the facts a clear, positive, unquestionable duty exists that the board should pay the claim, then the board cannot evade this duty by saying that the board is a quasi-judicial tribunal. It may not always be easy to draw the line, but such we understand to be the settled distinction. The latest case in which this matter was discussed is People ex rel. Myers v. Barnes (114 N. Y., 317), which case was heard a second time on a motion for a reargument. While the court held that, in that case, mandamus would not lie, the decision was on the ground that there was a disputed state of facts. And it was admitted that if .the claims were made by statute, or by some séttled rule of law, legal charges, the case would have come within the cases of People ex rel. Johnson v. Supervisors of Delaware County (45 N. Y., 196) and People ex rel. Thurston v. Town Auditors of Elmira (82 id., 80). The same doctrine is found in People ex rel. Kinney v. Supervisors of Cortland County (58 Barb., 139).

But the defendant insists that where on undisputed facts it is the duty of the board to allow a claim at an amount determined by statute or contract, yet that if they refuse to do this, such refusal is an error of law, which must be reviewed only by certiorari. Here, however, it overlooks what was pointed out above, viz.: That the board of supervisors is not solely a judicial tribunal, but it is also the person, or the representative of the person, which owes the debt. If the hoard were merely a judicial tribunal, the court would not by mandamus control its action. But it is the official body charged with the duty of causing the debts of the county to be paid. And when there is no question as to the facts on which the debt arises, and as to the amount of the debt, then the board may be properly commanded to pay. To refuse to pay is not a mere error of law, it is a breach of duty.

A further point of the defendant is that the relator has lost his rights by accepting the check which included part of his claim. We think not. Most of that check was for the rest of his bill. He could not divide the check; and was not bound to lose what was paid him. There was no compromise of a disputed claim. There was only a payment of a part of what was legally due. In People ex rel. McDonough v. Board of Supervisors of Queens (33 Hun, 305), there was a dispute as to the facts, and the amount allowed and accepted was stated to be in full. Such is not the case here. (See, on this point, People ex rel. Kinney v. Supervisors of Cortland County ut supra.) If, as we have shown, the board had no judicial discretion to exercise, a part payment does not satisfy the claim.

It was further urged by the defendant that the words “redemption list ” in relator’s bill did not necessarily mean the notice to redeem lands sold for taxes issued by the comptroller. If the board had desired further evidence when the bill was presented, it might have so stated. But it does not appear that any doubt existed as to what the bill meant. In the affidavits used on this motion the matter is explained fully; and the defendant’s affidavits make no denial. It is evident that the matter was perfectly understood.

Order reversed and peremptory mandanws granted, with fifty dollars costs and disbursements.

Landon and Matham, JJ., concurred.

Order reversed; mandamms granted, with fifty dollars costs and disbursements.


author: Learned, P. J.: Mayham, J.:

text:
    JOHN HANSEE, Respondent, v. RACHEL C. FIERO, Appellant, Impleaded, etc.

      Order opening default allowing judgment to stand as security —■ extension of the time of the lien of the judgment — issuing execution nunc pro tunc — pleading coverture — judgment, extinguishment or merger of, in a second judgment.

    Tlie customary order made on opening a default, that tlie judgment shall stand as security, simply retains the judgment as a lien upon any land of the party against whom the judgment has been entered.
    If such an order extends the time of the lien of the judgment, under section 1255 of the Code of Civil Procedure, it does not, under the provisions of that section, extend it as against purchasers, creditors and mortgagees in good faith.
    Where an original judgment has been directed to stand as security, the party in whose favor it has been rendered is not entitled, on an application for leave to issue execution thereon, to an order directing that the execution be issued nunc pyro tune. If the party in whose favor the judgment has been rendered desires to levy upon the land which the debtor has when the execution is issued, the mode is described in section 1252 of the Code of Civil Procedure, but he has no right to revive the lien, as against purchasers of land from the judgment-debtor, by inserting a clause in the order directing the issuing of the execution, that it be issued nunc pya'o tunc.

    In an action upon contract against a married woman her coverture need not be alleged in the complaint, but is matter of defense. (Per Mayham, J.)
    The recovery of a second judgment for the same cause of action does not operate to extinguish the former judgment. (Per Mayham, J.)
    Appeal by the defendant Rachel' O. Fiero from an order, entered in the Ulster county clerk’s office on the 1st day of July, 1889, granting leave to the plaintiff to issue an execution as of September 13, 1884.

      John E. Van Etten, for the appellant.

      William J. Groo, for the respondent.
   Learned, P. J.:

The plaintiff recovered a-judgment against all the defendants August 11, 1875. On a subsequent motion for leave to issue execution, an order was made August 10, 1885, granting such leave unless said defendant Fiero should serve an answer in ten days, in which case the judgment was to stand as security. This order gave leave to issue such execution (in case no answer was served) “ as of the date of September 13, 1884,” which was the day for which the motion had been noticed. The defendant Fiero thereupon answered. Therefore, the leave to issue execution was practically refused, because it was not granted if the defendant Fiero should answer.

The cause went to trial in June, 1888, and on the trial the plaintiff amended Ms complaint by adding certain allegations showing that the defendant Fiero, a married woman, had, in writing, charged her separate property. The plaintiff recovered and entered judgment September 25, 1888. On this judgment execution was issued and returned unsatisfied. The plaintiff then moved, June 8, 1889, for-leave to issue execution on the judgment of August 11,1875, which motion was opposed. The court granted leave to issue execution mono pro tame as of September 13, 1884. From this order the defendant Fiero appeals.

The customary order that, on opening a default, the judgment shall stand as security, simply retains the judgment as a lien upon any land- of the defendant. If it extends the time of the lien under section 1255, Code of Civil Procedure, it does not extend it against purchasers, creditors and mortgagees in good faith. And in this case it could be (in any event) an extension only from August 10, 1885, to September 25,1888, a period of three years and one month and a half, as the lien of the judgment of August 11, 1875, had nearly expired when the order was made; the lien of that judgment, even if extended by the order, expired during September, 1888. It had ceased to be a lien long before the order of June 8, 1889. Although, therefore, the order made August 10,1885, directed that the judgment should stand as security, it could not have the effect to extend the lien beyond the ten years provided for by the Code, section 1251, or the additional time under section 1255, above cited. And the provision in that order that execution might issue as of September 13, 1884, was, as we have seen, entirely nugatory. Since the defendant answered, as she was allowed to do, and, therefore, no privilege of issuing any execution was granted by the order of August 10, 1885, all that plaintiff obtained was, that the original judgment should stand as security.

Supposing, then, the original judgment does stand as security. The plaintiff may then ask leave to issue execution (§ 1377), and .this may properly be granted. But there is no propriety in issuing the execution nuno fro tuno. If the plaintiff desires to levy on land which the debtor has when the execution is issued, the mode is prescribed in section 1252. If he desires to revive the lien as against purchasers, etc., that he has no right to do. To insert a clause of nuno fro tuno is only to expose persons not before the court to the risk of litigation. The plaintiff’s lien on his original judgment has expired long ago, and very possibly rights of purchasers or creditors have arisen. "We ought to do nothing which will indicate danger to them where no danger really exists. And, as has been shown above, there is no more reason for a nuno fro tuno clause taking the execution back to August 10, 1885, than for one taking it back to August 11,1875, for the order of August 10, 1885, in regard to the execution, had no effect in case the defendant answered, as she did in fact,

Yery possibly this nuno fro tu.no clause will not, in fact, harm ionco fide purchasers and creditors. But it may alarm them, and perhaps induce them to buy their peace, when there is no valid claim against them. It ought not to be allowed to serve any such purpose. The execution without that clause will give the plaintiff all he is entitled to.

Order amended by striking out the nuno fro tumo clause; no costs to either party.

Landon, J., concurred.

Mayham, J.:

On the 11th day of August, 1875, the plaintiff recovered a judgment in the Supreme Court by default against Rachel C. Fiero, Bingam F. Decker and Adaline Decker on a note purporting to have been made by said Decker and indorsed by the defendant Fiero. At the time of the making and indorsement of the note, and the entry of the judgment thereon, the defendant Rachel O. Fiero was a married woman, which fact was not alleged in the complaint. No execution was issued on the judgment within five (5) years after the entry thereof. A motion for leave to issue execution was noticed for a Special Term to be held September 13, 1884, which motion was adjourned from time to time until August 10, 1885, when an order was made granting leave to issue execution on the judgment, as of the date of September 13, 1884, unless the defendant Fiero should within ten (10) days from the service of the order serve a verified answer.

On the 15th day of August, 1885, this defendant served an answer as required by the order, after which no proceedings were taken in the action until the trial thereof June 21, 1888, when the defendant Fiero moved to dismiss the complaint as to her, on the ground that it did not state a cause of action against her as a married woman, whereupon the court gave the plaintiff his election to submit to a dismissal of the complaint or amend the same so as to state a cause of action. The plaintiff elected to amend, and the trial proceeded, resulting in a verdict and judgment for plaintiff for the amount of the note, interest and costs, which judgment was entered September 25, 1888. On this judgment an execution was issued against all the defendants and returned wholly unsatisfied, On the 8th day of June, 1889, thereafter plaintiff made another motion for leave to issue execution on the judgment of August 11,1875, upon the above facts, which was opposed by the defendant Fiero, on which an order was made granting leave to issue an execution nuno pro lamo as of the date of September 13, 1884. From this order the defendant Fiero appeals to this court.

The appellant insists that the election of the plaintiff to amend his complaint on the trial was, in legal effect, a concession that the original judgment was unauthorized and invalid as against the defendant Fiero. That the making of such election was a concession, on his part in open court, that the original complaint did not state a cause of action against the defendant Fiero, and that the judgment was, therefore, as to her, unauthorized; and that both parties, having acted upon that concession, followed by the recovery of a new and different judgment, and an attempted enforcement of the same by the plaintiff by execution, are concluded.

We cannot agree with the appellant in her contention that the first judgment, for want of an allegation in the complaint that she expressly charged her separate estate, was unauthorized and invalid. It was never necessary, in order to recover against a married woman, to allege in the complaint the facts which, if controverted, would have to be proved to charge her.

It is enough to complain generally upon the contract or obligation. She may be sued and declared against as a feme sole, and her coverture is a matter of defense only. In Smith v. Dunning, which was an action upon a note of a married woman, the defense of coverture was set up. In discussing that question the court says : “ She was bound by the note, and could be sued upon it as if she were unmarried.”

It was wholly unnecessary to allude in the complaint in any way to her coverture or her separate estate. Her coverture was matter of defense to be set up if available. (Smith et al. v. Dunning, 61 N. Y., 251; to the same effect is Hier v. Staples, 51 id., 136; also Frecking v. Rolland, 53 id., 422.)

The first judgment, therefore, not having been paid or reversed must, for the purposes of this motion, be regarded as valid, unless the same was, by the acts of the defendant in the prosecution of the action and the recovery of the second judgment, exjrressly waived or merged in the second recovery.

The defendant insists that such was the effect of the election of the plaintiff to amend his answer, and that he cannot now for that reason enforce the old judgment by execution; and several cases are cited to show that a party by his own act may waive a right, and after his adversary has acted upon such waiver he cannot disregard the same, and assume and enforce for his own benefit the right which he has thus waived- But none of the cases cited hold that a judgment can be thus waived, or that the recovery of a second judgment for the same cause of action is a merger or extinguishment of the first.

In Lansing v. Caswell (4 Paige, 519) it was held that when a party had appealed from the, decision of the commissioners of highways in laying out a highway, if he afterward participated in the assessment of damages, he thereby waived his appeal.

In Brady v. Donnelly (1 N. Y., 126) the defendant demurred to a bill in equity and the demurrer was overruled by the vice-chancellor, whereupon the defendant appealed to the Court of Appeals, but pending such appeal, answered the bill upon its merits; it was held that by answering he had waived his appeal. In Bennett v. Van Syckel (18 N. Y., 481), the party, by a judgment, was decreed to receive certain advancement and be indemnified against certain covenants, and was then to assign certain leases, held that he could not, after adopting the beneficial part, repudiate that which was of benefit to the other party, but that he had waived his right to object to the performance of the part which operated to his prejudice.

In Smith v. Rathbun (75 N. Y., 122) the plaintiff applied to the referee for leave to amend his complaint, which was granted upon condition that the defendant might demur to the amended complaint; after amending his complaint, the plaintiff objected that defendant had no right to demur to an amendment made on the trial, held, that having availed himself of the conditional order, he was bound by the condition, and had waived his right to object. But it will be seen that in none of these cases has a valid judgment been extinguished by waiver, nor have we been able to find a case which goes to that length. Nor do we see how, on this motion, the judgment of August 11, 1815, can be held invalid or extinguished. Ordinarily, a judgment of a court of record can only be extinguished by payment, release, satisfaction of record or lapse of twenty (20) years, none of these facts exist as to this judgment, and the court cannot, on this appeal, hold that it has been extinguished, superseded by the latter judgment or merged in it. It is true that at the time of the making of the order by Judge Westbrook, to which effect is given by the order from which this appeal is taken, more than ten (10) years had lapsed after the entry of the judgment, and the same had, at the time the order was made, ceased to be a lien on the real estate, and an order for the issuing of an execution could not revive the lien.

In cases where defaults are opened, it is a common practice to allow the judgment already entered to stand as security; and the learned judge, who granted the order appealed from, held that effect should be given to the order of Judge W estbrook. It is insisted by the defendant that the order made by the Sjrecial Term, after the lapse of ten years, although by its terms nune pro i/uno as of a date prior to that time, is unjust, as its object was to revive' a lien already extinct. It is by no means certain that the order could have any such effect, or that the court could, by its order actually made after a judgment had ceased to be a lien, revive the same; that, in effect, would be reviving and creating a lien barred by a statute.

There does not seem to be any limit of time during the life of a judgment within which an' execution may issue under subdivision 2 of section 1377 of the Code; and without determining what property of the judgment-debtor under it could be taken upon execution, we think the order, granting leave to issue execution, should be so far modified as to allow an execution to issue on the original judgment as of this date, but not nunc pro tunc.

Order modified by striking out clause authorizing execution to be nunc pro tmnc.


author: Landon, J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. JOHN H. CAMPBELL v. EDWARD HANNAN and Others, Members of and Constituting the Board of Police Commissioners of the City of Troy, and JOHN L. DUNN, Clerk of Said Board.

      Removal for misfeasance, of a member of a city police force — his right to appem' and defend before the police bow'd by counsel — return by said board to a certiorari, setting up that the member removed was not properly appointed.

    Under the provisions of the Constitution of the State of New York, to the effect that on any trial, and in any court whatever, the party accused shall be allowed to appear and defend in person and with counsel, a city police board, before whom a member is brought charged with misfeasance in office, although the statute relating to such police force does not, in express terms, provide that the accused shall be allowed to appear and defend with counsel, must, nevertheless, allow him to so appear and defend himself in the proceeding.
    In the return by a city police board, to which a certiorari has been issued to review its proceedings and decision in regard to the removal of a member of the police force from duty for misfeasance in office, it is not proper to insert matter showing that the relator, who had been a member of such police force for some four years, was 'not eligible to appointment in the first instance because he had not passed an examination before the board of civil service commissioners of the city.
    Certiorari issued under an order made at a Special Term held in the city of Albany on the 30th day of July, 1889, and directed to the board of police commissioners of Troy, and to every member thereof constituting said board, and to John L. Dunn, clerk of said board, requiring them to certify and return their proceedings, decisions and actions taken or had with reference to the removal of one John Ii. Campbell, the relator, from the police forcé of the city of Troy, and from his office as chief detective thereof.

      Orin Gambell, for the relator.

      P. A. Parmenter, for the defendants.
   Landon, J.:

On the 22d day of July, 1889, one of the board of police commissioners of the city of Troy preferred a charge in writing against the relator of neglect of official duty, in that the relator did, on the night of the 7th of May, 1889, go to New York with a warrant for the arrest of one Lace and another Stebustro for the crime of grand larceny, preferred by Mary A. Carlo, and did return on the following night without having made any proper effort to apprehend said persons; and did state to the board that he would not have arrested them had he met them on the street in the city of New York; and also that the relator makes no personal effort as chief detective to suppress crime or bring criminals to justice.

A copy of said charges was served upon the relator upon the afternoon of the same day requiring him to answer the same and appear for trial before the board on the next day at 7.30 o’clock p. m.

The relator appeared before the board at the time appointed and requested that he might appear and defend with counsel; this request was denied. He then denied the charges, and stated to the board that he did not go to New York to arrest the persons named in the warrant, but to bring them to Troy, they having already been arrested, but that when he arrived in New York he ascertained that they had been arraigned before the police magistrate, and that the complainant, Mary A. Carlo, had appeared before the magistrate, but could not identify them, as the persons accused, and the magistrate thereupon discharged them; that the relator did' not know them, and that he did say to the police board that, under the circumstances. he would not have arrested them if he had met them in the street. The relator then asked that his trial be postponed to enable him to procure the witnesses from the city of New York to prove the facts and circumstances of the discharge of the accused. This was refused, the board, or some one of its members, remarking that they would take his statement as true. The board return that they also accepted as proven that the relator, in his previous statement to the board, did add the words “ under the circumstances ” to his statement that he would not have arrested the accused had he met them in the street. No other charge against the relator was inquired into upon the trial. The board thereupon found the charges to be true and dismissed him from office.

The charter of the city provides that “ no member of .said police force shall be removed from his office without having written charges preferred against him, and the same having been publicly heard and examined by said board after due notice thereof to him by the said board.” (Chap. 328 of 1880, § 18.) The statute does not in express terms provide that the accused shall be allowed to appear and defend with counsel, but the Constitution provides that “ in any trial in any court whatever the party accused shall be allowed to appear and defend in person and with counsel.” (Const., art. 1, § 6.) The board of police commissioners was a court for the trial of the relator. (People ex rel. Nichols v. The Mayor, etc., 19 Hun, 449; People ex rel. Garling v. Van Allen, 55 N. Y., 31; People ex rel. Munday v. Fire Commissioners, 72 id., 445; Murdock v. Phillips Academy, 7 Pick., 303; S. C., 12 id., 244; Dill, on Mun. Corp., § 193.) The statute could not deprive the relator of this right. The charter authorizes the board of police commissioners of the city of Troy to make rules in furtherance of the police government of the city, including the removal from office of members of the police force. (Chap. 328, Laws 1880, § 25.) Rules had been made, one of which provided that no officer should be removed “ except upon the substantiation of written charges preferred against him to the board of police after a fair trial, in which full opportunity shall be given him for his own defense, as prescribed by law.” Another rule provides “no counsel are needed on the investigation of any charges, but may be allowed.” The rule first quoted implies that counsel will be allowed if desired; the second rule is advisory, with no injunction to accept the advice. Neither attempts to deprive the accused officer of this right, and it was error to deprive him of it.

It is not clear that the accused had a fair trial. He gave an explanation of his conduct which was accepted as true, and which, if true, would be a defense to the charge of neglect of duty, however it might be as to mistaken judgment or insufficiency in performing it. The defendants make return of several allegations of misconduct on the part of the relator with respect to his official action. It is a sufficient answer to these to say that he has not been put upon trial with respect to any of them. The fact that such matters are returned suggests that possibly the relator was tried upon one charge, and dismissed because of others of which he had no notice. The determination of the board must be revérsed.

It is urged, however, by the defendants, and they have made return of facts which they allege show, that the relator was not eligible to appointment in the first instance, because he had not passed an examination before the board of civil service commissioners for the city of Troy. It appears that the latter board was not organized until two days before the relator’s appointment, and that it did not give the board of police commissioners notice that it was ready to proceed to the discharge of its duties, until an hour and a half after the relator had been appointed. The defendants ui’ge that if the relator was only an officer de facto, no matter how he was excluded from office, he cannot be restored.

The relator had been in office more 'than four years and was charged and tried as an officer de jwe, and was dismissed. As the proceedings and determination of the defendants were erroneous, and injuriously affected the 'relator, we think he is entitled to an adjudication reversing them. The question here is whether the proceedings and determination of the board of police commissioners wére right ? The question sought to be presented is, whether they ought not to be sustained because of matters not presented upon the trial, and of which the board had no jurisdiction and as to which the relator had no day in court. Regard being had to the fact that the defendants were required to make return to the writ, their return of other and further matters, as to which the relator was not tried, must be regarded as irrelevant and as not presenting any issue for our determination. ¥e relegate such questions to the proper action and forum.

Proceedings and determination reversed, with fifty dollars costs and disbursements.

Learned, P. L, and Mayham, J\, concurred.

Proceedings and determination reversed, with fifty dollars costs and disbursements.


author: Landon, J. :

text:
    PHILIP W. SMITH, Respondent, v. HARRY FITCHETT, Appellant.

      Partnership — action by one partner against pie other for an accounting and division of the firm, assets — defense setting up the recovery of j udgments against the firm.

      A. partnership having been dissolved, an action was brought by one partner against the other for such judgment in his favor as an accounting should authorize. The issues were referred, upon the trial of which it appeared that there were partnership property and assets not disposed of, and upon the preliminary report of the referee to that effect the Special Term made an order directing the entry of an interlocutory judgment appointing a receiver of the partnership property and assets, and directing the receiver to make disposition thereof and to report thereon, and that, after the passage of the receiver’s final account, the trial be resumed and completed before the same referee.

      PLeld, that the practice adopted in this case was proper.
    It is no defense to an action in equity brought by one partner against the other to dissolve the partnership, dispose of the assets, pay the debts, state the account and ascertain and divide the net surplus, that there are outstanding judgments against the firm. The partner sued owes two duties, one to the firm creditors to pay them and the other to the plaintiff to pay him, and he cannot by alleging his own breach of duty in the former case discharge himself from liability in the latter.
    Appeal by Harry Fitcbett, the defendant, from a judgment, entered in the office of the clerk of the county of Albany on the 19th day of April, 1887, in favor of the plaintiff, upon the decision of a referee, to whom the issues in the action were referred, to hear and determine the same.

      Levi Smith, for the appellant.

      Norton Ohase, for the respondent.
   Landon, J. :

The parties were copartners. The partnership was dissolved and the plaintiff brings this action for an accounting, and for such judgment in his favor as the accounting should show. The issues were referred, and upon the trial before the referee it appeared that there were partnership property and assets not disposed of. Hpon a preliminary report of the referee to that effect the Special Term made an order directing an interlocutory judgment appointing a receiver of the partnership property and assets, and directing the receiver to piake disposition thereof and report thereon, and that after passing the receiver’s final accounts the trial of the action be resumed -and completed before the same referee. Proceedings were had and completed in pursuance of the interlocutory judgment, and thereafter, upon the referee’s final report, the judgment was entered from which this appeal was taken. We think the practice proper. This is an equity action in which the court, having full jurisdiction of the parties and the subject-matter, should take such action, by interlocutory judgment or otherwise, as is needful, in order that the proper final judgment be rendered.

It appeared by the receiver’s report that there were, outstanding and unpaid, a number of judgments against the firm. But it also appeared, upon the evidence, that the defendant had received the greater part of the moneys of the firm, and that there were no moneys or assets wherewith to pay these judgments, except such as the defendant had received. "We assume that the receiver made a proper disposition of all the partnership assets except the moneys which came to the hands of the defendant. The objection of the defendant that the outstanding judgments against the firm defeat the plaintiff’s right to any recovery for his half of the net surplus of partnership assets in the defendant’s hands, over and above all partnership liabilities, is not valid. The defendant owes two duties, one to the firm creditors to pay them and the other to the plaintiff to pay him. lie cannot allege his own breach of duty to protect himself from liability for such breach.

The objection is based upon the rule obtaining in actions by one partner to recover at law against the other upon some breach of partnership obligation. Actions at law, it is said, cannot be maintained even after dissolution of the partnership by one partner against the other, except after a full accounting, balance struck and express promise to pay. (Arnold v. Arnold, 90 N. Y., 580; see cases cited in Belanger v. Dana, 52 Hun, 39.) But an action in equity lies between the partners, in order, if necessary, to dissolve the partnership, dispose of the assets, pay the debts, state the account, and ascertain and divide the net surplus, and render judgment accordingly. The obstacles to a recovery at law, equity removes.

The defendant is not prejudiced by retaining in his own hands partnership assets sufficient to pay outstanding judgments against the firm. It is the plaintiff who may be injured by the judgment-creditors. But he is clearly entitled to his share of the net surplus.

The defendant alleges that the referee did not give him all the credits to which he was entitled. The plaintiff alleges that the referee did not charge the defendant with all the debits he ought. As the case is presented, we cannot discover that the net balance is not right. There were no formal requests for findings as to disputed items. The testimony is voluminous, and the partnership books are referred to as forming part of the case, but are not handed up. The transactions covering four years are grouped in the results stated by the expert witnesses.

It is practically impossible for us to examine this mass of accounts without great danger of making more mistakes than .we should correct. The presumption is that the referee is right, and we affirm his findings, because we cannot see that they are wrong.

The judgment should be affirmed, with costs.'

Learned, P. J., concux-red; Maybtam, J., taking no pax’t.

Judgxnexxt affirmed, with costs.


text:
    HENRY STERN and CHARLES EICHOLD, Respondents, v. JOHN MEIKLEHAM, Appellant.

      Contract for the purchase of a stock in trade by an infant — right of the vendor to sue, alleging fraud, and attach the goods — -right of the infant to affirm or disaffirm the contract on his anrival at his majority.

    An infant carrying on business purchased some hats and caps in the course thereof, and about six months after such purchase made a general assignment of his stock in trade, including a considerable portion of such hats and caps, for the benefit of his creditors. Thereupon the seller of the hats commenced an action, alleging fraud on the part of the infant, and procured an attachment and levied upon the stock in trade.

      Held, as the contract of purchase was not for necessaries and, therefore, was not obligatory, that the action was premature in being brought prior to the majoi'ity of the infant.
    That as the purchase was not clearly to the disadvantage of the infant the contract therefor was not void, but was voidable, and during his infancy the purchaser was incapable of either affirming or disaffirming it.
    Appeal by the defendant John Meikleham from an order of the Albany County Court, entered irx the office of the elex-k of the county of Albany on the 23d day of January, 1888, affirming a judgment, rendered in the above-entitled action by a justice of the peace of the city of Cohoes, in favor of the plaintiffs and against the defendant; also from the judgment, entered, on the 23d day of January, 1888, in the office of the said clerk, in favor of said plaintiff and against said defendant.
    The defendant, an infant, carried on for three years a store in Cohoes for the sale of bats and caps. In June, 1883, be purchased bats and caps of the plaintiffs amounting at the agreed price to $194.25, and placed them with his stock in bis store. He did not pay the plaintiffs therefor, and, in December, 1883, be made a general assignment for the benefit of creditors of his stock in trade, including a considerable portion of the bats and caps bought of the plaintiffs. The plaintiffs commenced this action before a justice of the peace, and, alleging fraud, procured an attachment and levied upon the stock. The defendant appeared by guardian upon the trial and alleged and proved bis infancy; the plaintiffs recovered, and this appeal is from an affirmance of the judgment by the County Court.

      Henry A. Strong, for the appellant.

      Hoyle & Fitts, for the respondents.
   Landon, J.:

This action was prematurely brought. The contract was not for necessaries, and, therefore, was not obligatory; it was not clearly to the disadvantage of the infant, and, therefore, was not void; it was of an uncertain nature as to benefit or prejudice, and, therefore, was voidable. (2 Kent’s Com., 236; Chapin v. Shafer, 49 N. Y., 407; Henry v. Root, 33 id., 526; Sparman v. Keim, 83 id., 245.) But while the defendant’s infancy continued be was incalmable of affirming or disaffirming it. He has his election after becoming of age. (Beardsley v. Hotchkiss, 96 N. Y., 201, 211; Walsh v. Powers, 43 id., 23 and cases suprai) The defendant was still an infant when this action was tried.

The judgment should be reversed, with costs.

Learned, P. J., and Mayham, J., concurred;

Judgment reversed, with costs.


text:
    In the Matter of the Petition of WILLIAM T. VAN TASSELL, a Taxpayer of the Town of Rosendale, Respondent, v. JOHN DERRENBACHER, as County Treasurer of Ulster County, Appellant.

      Town bonds issued in aid of a railroad — application of the tax collected from the railroad company in extinguishment of renewals of such bonds — change of ownership of railroad — special act providing for the payment of the bonds — effect of, upon the general act.

    The provisions of section 4 of chapter 907 of the Laws of 1869, as amended by chapter 283 of the Laws of 1871, to the effect that all taxes, except school and road taxes, collected for the next thirty years in any town, village or city, on the assessed valuation of any railroad for which said town, village or city, has issued bonds to aid in its construction, shall be applied to the redemption of such bonds, are applicable to bonds which have been issued for the purpose of providing the means to refund the original bonds issued for „tlie construction of a railroad, where such original bonds have fallen due.
    The fact that the original railroad company having defaulted upon its mortgage, its property was sold under a foreclosure thereof, and became the property of a new corporation, has no effect upon the manner in which the proceeds of taxes upon such property are to be applied.
    The fact that a special act has been passed relating to a particular town, which requires a sinking fund to be provided by taxation for the payment of such bonds sufficient to provide therefor at their maturity, does not supersede the provisions of the general act in regard to tlioir payment; but the general and special acts being consistent with each other, the creditor holding the bonds is given two different securities for their payment.

      (¿mere, whether the legislature could, without impairing the obligation of the contract, deprive the holder of the -bonds of any security he already held, unless a new security were given and accepted upon condition of a release of the old one.
    Appeal by John Derrenbacher, as county treasurer of Ulster county, from an order, entered in the office of the clerk of the county of Ulster on the 19th day'of November, 1889, ordering said county treasurer to execute and comply with the provisions of section i of chapter 907 of the Laws of 1869, as amended by chapter 283 of the Laws of 1871, in that the moneys paid to him arising from taxes (except school and road taxes) levied and collected on the assessed valuation of the Wallkill Valley Railroad, in the town of Rosendale, for the year 1887, be used in the purchase of the bonds of said town of Rosendale, issued to aid in the construction of said Wallkill Valley Railroad, when the same can be purchased at or below par; or in case said bonds cannot be purchased at or below the par value thereof, he invest the said moneys, with the accumulated interest thereon, in bonds of this State, or of any city, town or village thereof, issued pursuant to the laws of this State, or in bonds of the United States, and that he hold the bonds so purchased, and the accumulated interest thereon, as a sinking fund for the redemption and payment of the aforesaid bonds issued by the said town of Rosendale to aid in the construction of said railroad.
    By chapter 880, Laws 1866, as amended by chapter 311, Laws 1868, certain towns, including the town of Rosendale, were authorized, upon complying with the provisions of said acts, to take stock and issue bonds therefor in aid of the construction of the Wallkill Valley Railway. The town of Rosendale did comply with such provisions, and such proceedings were had under said acts as resulted in a subscription in behalf of the town for the stock of the railway company, and the issue of the bonds of the town in the sum of $92,800, the bonds bearing date April 1, 1869. The railroad was built through the town and the proceeds of the bonds applied in aid of its construction.
    Section 4 of chapter 907, Laws of 1869, as amended by chapter 283, Laws of 1871, provides that “ all taxes, except school and road taxes, collected for the next thirty years, or so much thereof as may bo necessary in any town, village or city, on the assessed valuation of any railroad in said town, village or city, for which said town, village or city has issued, or shall issue, bonds to aid in the construction of said railroad, shall be paid over to the treasurer of the county,” the same to be applied by him in the manner prescribed in said section for the redemption of such bonds issued by the town. In case of the failure of the county treasurer to comply with the provisions of the act, any taxpayer of the town may apply, on petition, to the county judge, who may make an order directing compliance by the county treasurer.
    Of the original bonds issued by the town of Rosendale at the time of the commencement of this proceeding, $8,000 of the principal sum remained outstanding; new bonds to the amount of $8,400 have been issued to refund to that amount the original bonds as they fell due. The balance has been paid.
    The county treasurer refused, to apply to the sinking fund the taxes above mentioned for the year 1887, and now appeals from the order of the county judge directing this application thereof.

      A. T. Clearwater, for the appellant.

      Linson dé Van Burén, for the respondent.
   Landon, J.:

Nearly every question presented in this class of cases has been decided adversely to the county treasurer. (Clark v. Sheldon, 106 N. Y., 104; Strough v. Supervisors, 28 N. Y. St. Rep., 967; Bridges v. Supervisors, 92 N. Y., 570; Vinton v. Supervisors, 18 N. Y. St. Rep., 435; Hand v. Supervisors, 31 Hun, 531.)

The following only are now urged:

1. Hoes section 4 of chapter 907, Laws of 1869, include the renewal bonds % So long as there are outstanding sufficient of the original bonds to absorb the taxes, the question is not material. But, if material, the renewal bonds renew the original debt in effect, though probably not in form. For thirty years the taxes upon the railroad.are applicable to the payment of the debt. Such was the intention of the legislature. We should give it effect, and regard the substance rather than the letter, to the end that the intent of the legislature, may not be defeated.

2. The Walkill Valley Rail way Company defaulted upon its mortgage, the mortgage was foreclosed, the railroad sold and became the property of the Walkill Valley Railroad Company. But the railroad remains, and the taxes applicable to the sinking fund are those collected upon “ the assessed valuation of the railroad.” Change of title or of name, or of both, does not change the property from which the taxes are derived.

3. Chapter 880, Laws of 1866, under which the original railroad company was organized, contains provisions looking towards the liquidation of the bonds issued by the several towns in aid of the construction of the railroad.

Thus the dividends upon the stock, and the stock itself, were devoted to this purpose, and taxation was authorized after ten years to tlie amount of five per cent of the principal of the bonds, to tlie end that tlie bonds might be paid within thirty years from their date.

Section 7 of the act of 1866 was amended by chapter 762, Laws of 1870, so as to require a sinking fund to be provided by taxation every year within ten years from the date of the bonds, sufficient to provide for their payment at maturity. The act of 1866, thus amended in 1870, relates solely to the Wallkill Valley Railroad. It is urged that special provision being made by the act of 1866 for the bonds to be issued in aid of the construction of this railroad, the general provision made by the act of 1869 did not extend to these bonds; and that if the act of 1869 did apply before the act of 1870, amendatory of the seventh section of the act of 1866, the amendment was the latest special provision for the protection of the Wall-kill Valley Railroad town bonds, and must be deemed to have superseded the provision made by the general act of 1869. But the general and special acts are consistent with each other, and the general act, by its general terms, includes the bonds in question. The object of all the acts was to provide security and means for the payment of the bonds. The creditor was by the special act of 1866 and the general act of 1869 given different securities. If the amendment of 1870 increased the security under the special act of 1866 it could not, certainly in the absence of express language to that effect, take away any security the creditor already held under the general act of 1869. The creditor was at liberty to accept every security tendered him, and the legislature could not without impairing the obligation of the contract deprive him of any security he already held, unless the pledge of the new security was given and accepted upon condition of a release of the old. These acts providing securities for j>ayment are in the nature of contracts between debtor and creditor, and the legislature cannot, as in the case of ordinary legislation, supersede at will the earlier by the later act unless the later act provides a full equivalent. We discover no intention to supersede the security given by section 1 of the act of 1869, by the amendment in 1870 of the seventh section of the act of 1866.

Order affirmed, with costs.

Learned, P. J., and Mayham, J., concurred.

Order affirmed, with ten dollars and printing disbursements.


author: Mayham, J.:

text:
    JOHN D. GRANGE, Respondent, v. ALDEN L. PALMER, Appellant.

      Written contract — altered as to date of performance by an oral agreement — estoppel — ■ design to mislead.

    A contract for the sale of lumber contained the following provision: “Provided always, and this sale is upon this express condition that the said party of the second part shall cut and remove all of said timber on or before the first day of March, A. D. 1887, and any timber not removed hy that date shall revert to and become the,property of the first part, without abatement from the price herein agreed to be paid.” The timber was all cut, but a portion of it was not removed within the time specified in the contract.
    The plaintiff on the trial proved, under the defendant’s objection, that the time for the removal of the timber had been extended before March first, hy an oral agreement of the parties, until the 1st of April, 1887.

      Meld, that the rule that a written contract cannot he altered before breach, hy a parol executory contract, is subject to the exception that the time fixed for its performance may be enlarged hy parol, where, by reason of such parol extension of time the party claimed to be in default has been induced to forego a strict performance, on his part, of the contract.
    That, assuming that the time for the removal of the timber was extended by parol, and that the vendee relied upon such extension and failed to make the extra effort necessary to remove the timber before the time fixed in the written contract, "which but for such extension he would have donej that the vendor was estopped from taking advantage of the vendee’s failure to remove the timber.
    To establish an equitable estoppel it is not necessary to show a design to mislead.
    Appeal by the defendant Alden L. Palmer from a judgment, entered in the office of the clerk of the county of St. Lawrence on the Yth day of May, 1889.

      John O. Keeler, for the appellant.

      U. D. Ellsworth, for the respondent.
   Mayham, J.:

This is an appeal from a judgment entered upon the report of a referee. The action was for the recovery of a quantity of lumber or its value. The complaint alleges the wrongful taking and detention of one hundred thousand (100,000) feet of spruce and hemlock logs, and demands judgment for the recovery of the possession, or for the valhe of the same if the possession cannot be obtained. The answer denies the allegations of the complaint and sets up a special contract in writing, and under seal, under which the defendant claims that the title to the logs in question, before the alleged conversion, became the property of one James R. Smith, from whom he claims to have purchased the same and to have been the owner at the time of taking the same.

The referee reported in favor of the plaintiff for the value of the lumber, and judgment was entered upon his report. The two principal questions raised on this appeal are:

Fwst. Whether the time for the removal of the timber from the Fox tract, on which it grew, could be extended by parol; and,

Second. Whether it was error for the referee, on the trial, to admit parol evidence of an agreement or conversation between the parties, extending the time of the removal of the timber.

The case discloses that, on the 8th day of February, 1883, the plaintiff made a contract in writing with James R. Smith, whereby Smith sold to him all the timber then standing or being upon a tract of land owned by Smith, known as the Fox tract (except a certain small reservation specified in the contract). The contract, among other tilings, contained this provision: “Provided always, and this sale is upon this express condition, that the said party of the second part shall cut and remove all of said timber on or before the first day of March, A D. 1887; and any timber not removed by that date shall revert to and become the property of the first part without abatement from the price herein agreed to be paid.”

The plaintiff entered upon said agreement, cut and removed logs under it, and before the 1st of March, 1887, all the timber in the complaint mentioned was cut and skidded, but some of it was not at that time, drawn off from the Fox tract. Ou the trial the plaintiff proved, under the defendant’s objection, that Smith, defendant’s vendor, before he sold to defendant, extended the time for taking off the timber until the 1st of April, 1887, by a parol agreement made with McBane, whom the plaintiff had employed to cut and deliver the same, and also with the plaintiff; and that Smith about the 1st of February, 1887, informed the plaintiff of such extension, and told him he need not get teams for the purpose of completing such removal by the first of March. It is true that Smith denies these conversations, but tlie referee has found as a fact that such parol extension was made, and we think the evidence is abundant to sustain that finding. (Clark v. Dales, 20 Barb., 60; Van Steenburgh v. Hoffman, 15 id., 28.)

But it is insisted by the defendant that if it be assumed that such parol agreement were made, still it would be inoperative and void within the statute of frauds:

First. Because it would be a parol agreement, creating an interest in land.

Second. Because it is a parol agreement altering, modifying or changing the terms of a sealed instrument before breach, and, therefore, void.

The doctrine that a specialty cannot be varied before breach, by a parol executory contract, while of general and almost universal application, seems to be subject to the exception that the time fixed for its performance may be enlarged by parol, where, by the terms of such parol enlargement, the party claimed to be in default has been induced to forego a strict performance by reason of the agreement of the other party to the contract to extend the time.

In Burt v. Saxton (1 Hun, 553), the Supreme Court, Mullin, J., says: “ It is. well settled in this State, whatever the rule may be elsewhere, that the time of performance of a contract under seal may be extended by parol.” In that case the defendant purchased premises upon which the plaintiff had a mortgage then due upon the plaintiff’s parol agreement to extend the time of payment of the principal for twenty years. The defendant failing to pay thefinterest annually the plaintiff brought his action to foreclose for the whole amount of principal and interest, and the court held that the parol extension of time was valid as a waiver of the time fixed in the mortgage; citing Clark v. Dales (20 Barb., 42, and 14 Serg. & R., 241), the court add “that a new consideration is not necessary to give validity to an agreement to extend the time of performance; the waiver is enough for this purpose.”

In Clark v. Dales (20 Barb., 64), Bockes, J., in delivering the opinion of this court, says: “ It was competent for the parties by a subsequent contract to agree on such extension,” and, after citing authorities, adds: “ Even the time of performance of a sealed instrument may be enlarged by parol, but the enlargement of the time of performance of an agreement under seal should be regarded rather as a waiver of strict performance; that is, the parties consent to accept performance at a future day.”

In Stone v. Sprague (20 Barb., 509), which was an action of ejectment, to recover the possession of jiremises contracted to be sold, for failure of the defendant to pay the contract-price; two written extensions of the time of payment and delivery of deed were proved, and on the trial the defendant offered to jxrove that a short time before the expiration of the last extension the plaintiff agreed by parol with the defendant not to take any advantage of the expiration of the contract, and that he stated to defendant that the lapse of a few days would make no difference with him. This evidence was rejected, and its rejection ivas held error; and Allen, J., in discussing that question in pronouncing the opinion of the court, uses this language : I think the learned justice erred. It has repeatedly been decided that the time of performing a written contract under seal may be enlarged by parol * * * such an extension is, in effect, a waiver of strict performance of the conditions of the contract,” and cites with approbation the language of the court in Esmond v. Van Benschoten (12 Barb., 367).

The learned counsel for the appellant relies upon the authority of the case of Boisaubin v. Reed (2 Keyes, 324), as establishing that the plaintiff had no title to those logs. ^That case holds that- where the party had a right to enter upon land for a given time to cut and carry away timber, that he cannot after the expiration of that time cut or remove the same; and if he cuts timber during his time and fails to remove it, he can be enjoined after the expiration of the time from its removal. The soundness of that proposition cannot be questioned; but the case does not contain any element of waiver of a strict performance. The same is true of McIntyre v. Barnard (1 Sandf. Ch., 55), cited by the defendant. In Kellam v. McKenstry (6 Hun, 381) the contract provided for peeling all the bark on a certain piece of land, in these words: “They further agree to have said bark all peeled by the 1st day of September, 1864, piled and measured and settled for in full.” After the time limited in the contract the owner of the land caused the standing hemlock trees to be j>eeled and sold the bark to the defendant. The purchasers of the bark under the contract, which was limited to September 1, 1864; on the 19th day of July, 1867, sold all the bark peeled on the land, including as well the bark peeled by the defendant’s vendor as that peeled by themselves, to the plaintiff. The plaintiff sued for the bark, and the referee, after expressly finding that there was no extension of the time, dismissed the complaint, and the General Term sustained judgment entered upon his report.

It is clear from this case there was no extension of the time for peeling and piling the bark, and no pretense of a waiver of a strict performance. There was, as appears by the opinion of Justice Miller in the Court of Appeals (69 N. Y., 270), some negotiations about an extension of the time, but the minds of the parties never met on any extension, and no extension was given, and that case differs from the one at bar in that important particular. None pf the cases above referred to and cited by the defendant hold that the strict performance, as to time of completion, could not have been waived by parol.

The referee having found, from the evidence, that, “ in the fore part of February, 1887, plaintiff made application to said Smith for an extension beyond the first of March, in which to get logs off said tract, telling him at the time that if said Smith refused he (plaintiff) would send and get teams, in addition to those McBain had, to draw them off. That said Smith told plaintiff, “You need not send and get any more teams; you can have during the month of March to take your logs off the tract; they are your property, but do not cut any more after the first of March.” That Smith gave assurance similar in substance to McBain, and said to him, “ I will give you time; you shall not be injured; you can have what time you want,” and that plaintiff and his employee or sub-contractor McBain both relied upon such assurances, and by reason thereof did not procure teams and remove the logs from the tract before the first of March, as they would have done but for such extension of time by Smith; he was right in holding that Smith thereby had waived his right to a strict performance as to time, and was estopped by his own act and agreement from insisting on the first of March that plaintiff’s right to and interest in the logs left on this tract had ceased.

Assuming, as I think we must, that this finding is supported by the evidence, we have, then, the fact that, on February first, Smith admitted that the timber belonged to the plaintiff, and extended the time for its removal, and that the plaintiff, relying on that extension, relaxed the effort that he would otherwise have made, leaving some of the timber on the tract, which Smith on the first of March, notwithstanding his previous waiver, assumed to take possession of as his own, and sold to this defendant.

The general doctrine of the law of estoppel is that, “ admissions which have been acted upon by others are conclusive against the party making them in all cases, between him and the person whose conduct he has thus influenced, and it is of no importance whether they were made m express language to the person himself, or implied from the open and general conduct of the party.” (Herman’s Law of Estoppel, p. 336, § 322.) “ That no man shall take advantage of his own wrong, is fully recognized in all courts of law and equity, and is one of the most essential elements in an equitable estoppel, * * * and is founded on the strictest morality.” (Id., § 323.) “As a genera] rule, a party will be concluded from denying his own acts or admissions, which were expressly designed to influence the conduct of another, and did so influence it, and when such denial will operate to the injury of the latter.” (Id., § 323; Titus v. Morse, 40 Me., 348.) “ It makes no difference in the operation of this principle whether the thing admitted be true or false; it being the fact that ft has been acted upon that renders it conclusive.” (Herman on Estoppel, 338, § 323; Gillespie v. Carpenter, 25 How. Pr., 203; Calanan v. McClure, 47 Barb., 206.) In Dezell v. Odell (3 Hill, 215), Cowen, J., says: “ We then have a clear case of an admission by the defendant, intended to influence the conduct of the man with whom he was dealing, and actually leading him into a line of conduct which must be prejudicial to his interests, unless the defendant be cut off from the power of retraction.”

This I understand to be the-very definition of an estoppel in pais, and in the same case, page 222, Bronson, J., gives the element of an estoppel in these words:

First. That he has made an admission which is clearly inconsistent with the evidence he proposes to give; or the title, or claim which he proposes to set up.

Second. That the other party has acted upon the admission ; and,

Third. That he will be injured by allowing the truth of the admission to be disproved.”

In Ripley v. The Ætna, lnsurcmce Company (30 N. Y., 164) tlie court, in discussing the question of an equitable estoppel, uses this language by way of illustrating the rule : “ If my tenant agrees to pay me rent on a day named or his lease will be forfeited, and if, before the day, I agree, for a valuable consideration, to waive the condition, I am bound by the agreement. If, without consideration, I agree that he may pay after the day, and he, by reason, thereof, omits to' pay at the day, I am estopped from enforcing a forfeiture.” It is quite true that an estoppel cannot be created ordinarily by mere silence so as to take away a vested right, or to divest the title of the owner of real estate (N. Y. Rubber Co. v. Rothery et al.); but, in this case, Peckham, J., says: “ To constitute it (an estoppel), the person sought to be estopped must do some act, or make some admission with an intention of influencing the conduct of another, or that he had reason to believe would influence his conduct, and which act or admission is inconsistent with the claim he proposes now to make. The other party, too, must have acted upon the strength of such admission or conduct.” (107 N. Y., 316.)

"When a party to a contract, who is entitled to a forfeiture in case of non-performance by the other party of a condition therein, by his own act induces the other party to omit strict performance within the time limited, he cannot exact the forfeiture if the party in technical default with reasonable diligence thereafter performs, or offers to perform. (Kenyon v. Knights Templar, 48 Hun, 285; Leslie v. Life Ins. Co., 63 N. Y., 27; Ins. Co. v. Eggleston, 96 U. S., 577.) In the case last cited, Bradley, J., in delivering the opinion of the United States Supreme Court, says: “Any agreement, declaration or course of action on the part of the insurance company which leads a party insured honestly to believe by conforming thereto a forfeiture of his policy will not be incurred, followed by due conformity on his part, will, and ought to, estop the company from insisting upon a forfeiture, though it might be claimed under the express letter of the contract; ” and this doctrine seems to apply to any interest in real as well as in personal property. “ The fact that it is real estate that is concerned, the title to which, and the right in which, are generally to be affected by instruments in writing formally executed, does not prevent the operation of an estoppel.” (Ana Rivas De Herques v. Carlos Marti, as Executor, 85 N.Y., 611.)

Assuming in this case that the referee was right in finding that the time for the removal of the timber was extended by Smith until the first of April, and that the plaintiff relied upon such extension, and failed to make the extra effort necessary to remove the timber before the first of March, which, but for such extension, he would have done, we are of the opinion that Smith and his vendor are estopped from taking advantage of plaintiff’s failure to remove the timber. “ It is not necessary to an equitable estoppel that the party should design to mislead.” (Blair v. Wait, 69 N. Y., 113-116.) It is enough if, in reliance upon the act of another, the party has been led to omit what otherwise he would and might effectually .have done to protect himself. (Voorhis v. Olmstead, 66 N. Y., 113; Manhattan Beach Co. v. Harned, 27 Fed. Rep., 484; Leather Man. Bk. v. Morgan, 117 U. S., 96.)

It would seem to follow that the plaintiff, under the circumstances of this case, did not lose his title to the logs by reason of his failure to remove the same before the first of March, but that his right to the same and the privilege to remove them was extended until the first of April, and that any interference with them by the defendant and his vendor within that time was a violation of the plaintiff’s rights, for which he might maintain this action, unless, as is claimed by the defendant, it was error to receive parol evidence of waiver of strict performance and of the extension of the time for that purpose. We.think parol evidence was competent, and its receipt by the referee upon that point was not error.

In Mead v. Parker (111 N. Y., 259), where it was objected that parol evidence of acts and declarations of the guarantor had been received to extend a written guarantee for the payment of a mortgage, Peckham, J., in delivering the opinion of the Court of Appeals; uses this language: “ This quotation shows that evidence of that nature was admissible upon the question of waiver, and that no one supposed that it was rendered inadmissible for that purpose because of the assumed alteration, by parol, of the contract required to be in writing by the statute of frauds. The evidence in this case was not of such a nature as could be said to alter the contract. It was simply of such a nature as to show that the defendant waived the strict performance of its original requirements.” (111 N. Y., 264; S. C., 22 Abb. N. C., 129; Goodwin v. Massachusetts Mut. Life Ins. Co., 73 N. Y., 480.) We discover no sucb errors in the rulings of the referee, in the receipt or rejection of evidence or in his findings or refusal to find, as would justify a reversal of this judgment.

The judgment must for the reason stated be affirmed, with costs.

Learned, P. J., and Landon, J., concurred.

Judgment affirmed, with costs.


text:
    LUKE COX, Respondent, v. THE ALBANY BREWING COMPANY, Appellant.

      Principal ancl agent — general power's of an agent intrusted to do a pm'ticula/r hind of business — authority as to hiring employees — presumption as to the authority of one engaged in the office of a corporation.

    In an action brought to recover damages for the breach of an alleged contract made by the defendant’s agent with the plaintiff, it was claimed by the defendant that there was no evidence that the alleged agent was authorized to employ hands for more than one day at a time, and that, therefore, if, as was claimed, the agent employed the plaintiff for a year, he did so without authority from the defendant, and the defendant was not bound by such agreement.

      Held, that while a special agent, with limited powers, cannot bind the principal where he goes outside of the scope of his authority, yet where an agent is intrusted to do a particular kind of business, he becomes, as between the principal and parties dealing with him, the general agent for the transaction of that business, and his acts, as between his principal and strangers, in that particular line, will bind the principal, although the agent in so acting has violated private instructions given by his principal which were unknown to the public.
    An agent who has authority to hire parties to work, as between his principal and strangers dealing with him, will be deemed to possess general authority to employ unless the limitation or qualification of his authority has been made known to the persons whom he employs in the service of his principal.
    A party seeking employment has a right to presume that a person at the office of the corporation, who assumes to employ laborers, has authority to act in that capacity, and a jury may presume, from acts openly done in the usual course of business at the office of the company, that such authority exists, although there be no evidence of actual knowledge on the part of the company or of its directors, or of express ratification.

      Appeal by the defendant, the Albany Brewing Company, from a judgment of the Albany County Court, entered in the office of the clerk of the county of Albany on the 26th day of February, 1890, with notice of an intention to bring up for review upon such appeal all proceedings had upon the trial of such action, including an order denying a motion for a new trial on the judge’s minutes, made in the action after a verdict liad been rendered therein and before entry of judgment thereon.

      De Witt c& Spoor, for the appellant.

      Chase d? Delehanty, for the respondent.
   Mayham, J.:

This is an appeal from a judgment of the Albany County Court, rendered upon the verdict of a jury in favor of the plaintiff, and also from an order of the County Court denying a motion for a new trial upon the judge’s minutes.

The action is upon an alleged contract by the defendant for the labor of the plaintiff in the defendant’s brewery for one year at the rate of two dollars per day, which the plaintiff alleges the defendant broke by discharging him from its employment before the expiration of the term.

The defendant denies the making of the contract; and the principal contention is, was the plaintiff employed by the defendant to work by a contract or agreement binding upon the defendant ?

The jury found for the plaintiff and a judgment was entered upon their verdict, and from that judgment the defendant appeals.

The jury having found for the plaintiff upon the disputed questions of fact as to whether or not there was an agreement between the parties that the plaintiff was to work for a year, and also that there was a breach, and damages resulting therefrom, their finding should be upheld, unless there was some error committed on the trial upon questions of law.

It is insisted on the part of the appellant that, as matter of law, no binding contract upon the defendant was proved, as there was no affirmative proof on the part of the plaintiff that Gray, with whom the plaintiff claims to have contracted, was the duly authorized agent of the defendant to employ hands for more than one day at a time, and that, therefore, if, as is claimed in this case, he employed the plaintiff for a year, he did so without authority from the defendant, and it is not bound by that agreement.

It is a well settled and elementary rule of law, that a special agent with limited powers cannot bind the principal where he acts outside of the scope of his authority; but that rule is subject to this qualification, that where an agent is intrusted to do a particular kind of business he becomes, as between the principal and parties dealing with him, the general agent for the transaction of that business; and .his acts, as between his principal and strangers, in that particular line, will bind the principal, although he violates some private instructions given by his principal not known to the public.

If, therefore, it be conceded or established by the proof in the case, that Gray had authority to hire hands on this work, that authority as between the defendant and strangers dealing with him in that line would be general, unless the limitation or qualification of his authority was made known to persons whom he employed in the service of the defendant. In the language of this court, in Cox v. Brewing Company, on a former appeal, as between the parties, Gray was the ostensible agent of the defendant and clothed with all the power he assumed to exercise.”

The undisputed evidence in this case is that the plaintiff was invited by a written communication to come to the defendant’s brewery for service; that pursuant to that request he went there and found Gray in the office assuming to employ hands; that he was then and there set at work by Gray, and continued in that service for several weeks to the knowledge of the general superintendent, and was paid from time to time for 1ns services.

It fe true he was contradicted by Gray as to the terms of the employment, but that raised a question of fact which was disposed of by the jury ; and while his continuance in service for that term might not, and would not, amount to a ratification of the special contract by the defendant, unless its terms were disclosed to it, still it was evidence bearing strongly upon the authority of Gray, and such as might be relied upon by his employees, who had no notice of any limitation upon his authority. In Conover v. Ins. Co. (1 N. Y., 292) the court says: “ Incorporated companies whose business is necessarily conducted altogether by agents, should be required, at their peril, to see to it, that the officers and agents whom they employ, not only know what their powers and duties are, but that they do not * * * transcend those powers. How else are third persons to deal with them with any degree of safety ?

As was said in this case, “-they (the public) have no access to the by-laws and resolutions of the board, and no means of judging, in the particular instance, whether the officer is, or is not, within the prescribed limits.” (Leslie v. Knickerboker Ice Co., 63 N. Y., 34; Fister v. La Rue, 15 Barb., 323; Dilleber v. Knickerbocker Life Ins. Co., 76 N. Y., 572.)

The plaintiff had a right to assume that the person at the office who assumed to employ laborers had authority to act in that capacity. And it has been held that a jury may presume the authority in such a case from an act openly done in the usual course of business, at the office of the company, without the evidence of actual knowledge on the part of the company or its directors, or of express ratification. We discover no error in the charge of the judge, or in his refusal to charge, which will justify a reversal of this judgment.

As we have seen, any private instructions by the manager of the company to Gray prior to the making of the contract, that no laborer should be hired for a longer time than for one day, not known by or communicated to the plaintiff, would not relieve the defendant from liability so long as the defendant permitted Gray to act for it at the office in the capacity of an employer of labor. It was not, therefore, error for the judge to refuse to charge as requested upon that point.

The judgment and order are affirmed, with costs.

Learned, P. J., and Landon, J\, concurred.

Judgment affirmed, with costs.