author: Sapallo, J.

text:
    Harriet Keeler, Appellant, v. Burr Keeler, 2d, et al., Respondents.
    The complaint herein contained simply the ordinary averments .for the foreclosure of a mortgage upon land in fee. The answer of defendants C. & Y. alleged in substance that the mortgagors held as tenants under a perpetual lease, and the title of the lessor having become vested in said defendants, they brought ejectment for non-payment of rent, recovered judgments, and under writs of possession issued thereon, the mortgagors were dispossessed and possession was delivered to them, whereby plaintiff’s mortgage was cut off. The averments as to title and recovery of judgments in the ejectment suits were proved on the trial, but the evidence showed that the execution of the writs of possession were merely formal, no actual change of possession taking place. It appeared, however, that before the pretended execution, K. and his wife, the mortgagors, without the knowledge of the mortgagee or her attorney, gave a written contract to defendant Y., who at that time had also acquired C.’s title, authorizing him to proceed in the ejectment suits and dispossess them under the judgments therein, they waiving all appeals and stays of proceedings theretofore obtained. The day after the pretended dispossession, Y. conveyed the premises to K.’s wife, taking back a mortgage for the rents in arrear and the costs as taxed in the ejectment suits. Plaintiff claimed that the pretended execution of the writs of possession was collusive and fraudulent, being designed to wrongfully deprive plaintiff of the lien of her mortgage. The trial court decided that this question could not be considered as there was no averment of collusion or fraud in the complaint. Held error; that the plaintiff had the right to give the evidence and raise the question to avoid the new matter set up as a defense.
    By the judgment the mortgaged premises were directed to be sold under plaintiff’s mortgage, subject to the mortgage so given to Y. By re-taxatian of costs in a number of similar ejectment suits, it appeared that the costs as taxed were largely in excess of what Y. was legally entitled to. An order was obtained for re-taxation in the case against K., hut subsequently proceedings for re-taxation were stayed until leave of the court was first obtained, on the ground that the suits had been settled, but authorizing other persons interested as mortgagees or incumbrancers to move for a readj ustment of costs, and by a stipulation of the parties to the ejectment suit, it was provided that the settlement should be without prejudice to the right of any person interested in the premises to have said costs readjusted. Seld, that plaintiff was not concluded as to ejectment costs by the settlement between the parties; and that the judgment was erroneous; hut that the costs could not he readjusted in'this action; that the judgment should be for foreclosure and sale, subject only to the payment of back rents and legal costs, leaving plaintiff to avail herself of the right to have the costs re-taxed on motion.

      It seems that had no such stipulation been made, the interest of the mortgagee would not have been affected by the consents and waivers on the part of the' mortgagors; that she had the right to redeem on payment of. back rent and legal costs.
    (Argued November 30, 1885
    decided March 26, 1886.)
    Appeal from judgment of the General Term of the Supreme Court, in the third j’udicial department, entered upon an order made November 21, 1882, which affirmed a j'udgment entered upon a decision of the court on trial at Special Term.
    The nature of the action and the material facts are stated in the opinion.

      Isaac H. Maynard for appellant.
    This statute is in derogation of the common-law right of the lessee and must be strictly construed. (Doe, ex dem. Hitchens, v. Lewis, 1 Burr. 614, 619; Hill v. Barclay, 18 Ves. 60; Woodfall’s Landl. and Ten. [7th ed.] 655, 656; Elliot v. Cronk's Admrs, 13 Wend. 39; Hasbrouck v. Paddock, 1 Barb. 635.) Until these judgments were entered in the “judgment book ” there was no valid judgment. (Schenectady and Saratoga Plankroad Co. v. Thatcher, 6 How. 226, 227; Stimsen v. Huggins, 16 Barb. 658, 659; Livingston v. Randal, 59 id. 496; Cotes v. Smith, 29 How. 326; Leavy v. Roberts, 8 Abb. 310; Mehl v. Vonderwulbeke, 46 N. Y. 539; Sheridan v. Leuden, 81 id. 182 ; 3 R. S. [6th ed.] 619, §§ 11, 12.) The executions were a nullity as to the plaintiff, because they demanded the sheriff to return them to the court instead of to the clerk, and within nine days after they were issued instead of sixty as required by statute. (Old Code, § 290.) The issuing of the writ of possession upon the judgment of Cruger v. Keeler was entirely unauthorized. (Herman on Executions, 44; Pemberton v. Searce, Hardin, 3; Old Code, § 289, subd. 4.) The proof shows that the writ of possession was never actually executed. (Herman on Executions, 530, 531, 532, 533; Whitbeck v. Van Rensselaer, 64 N. Y. 27; Browning v. Hanford, 5 Denio, 586; Baker v. McDuffie, 23 Wend. 289; Fitch v. Devlin, 15 Barb. 47.) The plaintiff’s time to redeem did not begin to run, because the costs in the ejectment suits were never finally adjusted. (Old Code, § 311; Sherman v. Wells, 14 How. 522, 526, 527; Chapman v. Plymouth, 42 Barb. 441; Sherman v. Portley, 45 id. 348; Thurber v. Chambers, 60 N. Y. 29.) Defendants are estopped from now insisting that there was a forfeiture of the lease under the judgments in ejectment against Iveeler, by the order which Mr. Youmans procured to be entered September 26, 1873, in which cases of Cruger and Youmans v. Keeler were declared to be settled and the clerk prohibited from taxing costs in those cases. (Dwight v. St. John, 25 N. Y. 203; Riggs v. Pursell, 74 id. 370; Bennett v. Couchman, 48 Barb. 73.) Mr. Youmans, by his stipulation dated October 30,1873, waived the forfeiture, if any had been incurred by his previous attempt at re-entry. (Collins v. Hasbrouck, 56 N. Y. 157; Shearman v. Niagara Ins. Co., 46 id, 526; Gallagher v. Nichols, 60 id. 438; Harris v. Troup, 8 Paige, 422 ; Story’s Eq. Jur. [5th ed.], §§ 1314-1321; Skinner v. Dayton, 2 Johns. Ch. 526; Livingston v. Tompkins, 4 id. 431; Spaulding v. Hollenbeck, 39 Barb. 79; Giles v. Austin, 62 N. Y. 486 ; S. C., 46 How. 269 ; 38 N. Y. Supr. [J. & S.] 215-235.) The issu ing and service of the writs of possession in the ejectment suits was a nullity as to this plaintiff, because at the time .they were so issued and served the proceedings on the part of Cruger and Youmans in those cases were stayed by order of the court. (White v. Klinken, 16 Abb. 109; Bagley v. Smith, 2 Sandf. 651; Starr v. Francis, 22 Wend. 633.) Plaintiff could prove that the alleged re-entry was fraudulent and collusive, or any other facts which-would avoid that defense. (Old Code, § 168; Mandeville v. Reynolds, 68 N. Y. 528; Myer v. Lathrop, 73 id. 315.) A fraudulent intent on the part of the Keelers in procuring the re-entry would be sufficient to avoid it, although Mr. Youmans was not privy to the fraud. (Salomon v. Moral, 53 How. 342; Smart v. Harring, 52 id. 505 ; Hooker v. Mather, 7 Cow. 301; Hildreth v. Sands, 2 Johns. Ch. 35; S. C., 14 Johns. 493; Pendleton v. Hughes, 65 Barb. 136.)

      William, Kenyon for respondents.
    An issuable fact not alleged, though proved, cannot form the basis of a decree, the judgment must be secundum allegata. (Field v. Mayor, etc., 6 N. Y. 179; Wright v. Delafield, 25 id. 266; Arnold v. Angeli, 62 id. 509.) Payment or tender of rent in arrear, the costs and charges incurred by the lessor in these actions of ejectment, is a condition precedent to the right of his lessee or mortgagee to have the lease or the estate of the lessee redeemed from the effects of the judgment in ejectment and restored to the lessee or Ms mortgagee. (2 R. S. 506, § 34; Whitbeck v. Van Rensselaer, 2 Hun, 55; S. C. affirmed, 64 N. Y. 27; 18 Q. B. 806; Herman on Executions, 534.) The costs in the two actions of ejectment against Keeler having been taxed and re-taxed, on notice, in the manner provided by the statute, become conclusive upon the defendant therein and those in privity with him, and cannot be attacked collaterally. (Pitman v. Mayor etc., 3 Hun, 370; Supervisors v. Briggs, 2 Hill, 135; S. C., 2 Denio, 26 ; White v. Coatsworth, 2 Seld. 137, 143 ; Van

      Schaick v. Winnie, 8 How. 5; Nellis v. Deforest, 6 id. 413; Hanna v. Dexter, 15 Abb. 135; Wait’s Ann. Code, 626, note e; Wait’s Sup. Ct. Pr. 558, 559; 11 How. 160 ; 1 id. 195.)
   Sapallo, J.

This action was brought in August, 1872, for the foreclosure of a mortgage. The complaint alleged that the defendant, Burr Keeler 2d, together with his wife, Jane Keeler, on the 1st of March, 1861, mortgaged to Patience Keeler a farm of fifty acres of land in Delaware county, to secure an indebtedness of $900, with interest. That Patience Keeler assigned this mortgage in December, 1861, to the plaintiff in this action; that default had been made in the payment of the principal and interest of the mortgage; and the plaintiff demanded as relief a foreclosure and sale of the mortgaged premises. The complaint contained Only the ordinary averments of a complaint for the foreclosure of a mortgage upon land in fee; it did not specify the title of the mortgagors, nor refer to any lease or any proceedings in ejectment, or contain any special matter whatever. The defendants Eliza Cruger and Wm. Youmans, Jr., were made parties on the allegation that they had or claimed some interest as judgment creditors of the mortgagor, which interest accrued subsequently to the mortgage.

The answer set out the title of the mortgagor, and averred, among other things, that he held under a perpetual lease from John Kortright, reserving rent, and that the title of the lessor to the rents having become vested in Eliza Cruger and Wm. Youmans, Jr., they proceeded by ejectment for non-payment of rent, and recovered judgments for possession and costs against the mortgagor (who was the tenant) in February and March, 1871; that on the 22d of August, 1872, they issued writs of possession on said judgments, and that on the same day the sheriff of Delaware county dispossessed the mortgagor and delivered possession of the mortgaged premises to the plaintiffs on the judgments, and claimed that the plaintiff’s mortgage was cut off by those proceedings.

On the trial the defendants proved the title of the mortgagor to be that of a lessee in fee, the recoveries by Cruger and You-mans against him in ejectment for non-payment of rent, and the issuing of writs of possession to the sheriff. The proceedings claimed to be an execution of the writ were substantially similar to those in Newell v. Whigham et al., just decided, with the additional circumstance that on the 10th of August,. 1871, before the pretended execution of the writ of possession, Burr Keeler and his wife, the mortgagors, without the knowledge of the mortgagee or her attorney, gave a written consent to the defendant Youmans, authorizing him to proceed in the ejectment suits, and dispossess them under the judgments therein, they waiving all appeals and stays of proceedings theretofore obtained by Gilbert & Maynard, as never authorized. Wm. Youmans, Jr., had at that time acquired the title of Eliza Cruger, and on the 23d of February, 1872, the day after the pretended dispossession of the mortgagors, he conveyed the premises in question to Jane Keeler, one of the mortgagors, and took back a mortgage for $1,422 for the purchase-money, which mortgage he now claims, and the court below has adjudged to be a lien on the premises, prior to the plaintiff’s mortgage.

The plaintiff insisted, on the trial, that the writ of possession was never executed so as to cut off the plaintiff’s right to redeem, under her mortgage; that she still had the right to redeem, and further that the pretended execution of the writ of possession was fraudulent and collusive and designed to wrongfully deprive the plaintiff of the lien of her mortgage.

The finding of the judge in respect to the execution of the writ of possession was similar to that in the Newell Case, and the reasons given for the reversal of the judgment in that case are also applicable to this. The further point is here presented, more clearly than in either of the other cases, that the trial judge erred in his ruling that the question whether the execution of the' writs of possession was fraudulent and collusive and done for the purpose of cutting off the title of the plaintiff, could not be considered, for the reason that there was no allegation in the complaint to that effect. This we think was error. The complaint was purely and simply for the foreclosure of the mortgage. All the allegations with respect to the proceedings in ejectment came from the defendants, and the plaintiff had the right to give evidence on the trial, for the purpose of avoiding the new matter set up- as a defense, of any • facts which might have been pleaded by way of reply when that pleading was in use. (Mandeville v. Reynolds, 68 N. Y. 528; Meyer v. Lathrop, 73 id. 315.)

By the judgment appealed from the mortgaged premises were directed to be sold under the plaintiff’s mortgage, subject to the mortgage given by Jane Keeler to the defendant Youmans for $1,422, on the 23d of February, 1872. The amount secured by this mortgage included the costs for which judgment was entered in the ejectment suits, amounting to $1,084.94, besides interest from 1871. By the re-taxatian of the costs in the large number of the Kortright suits of the class to which the cases against Burr Keeler belonged, it was ascertained that the costs legally incurred in these actions amounted only to about $220.49. Whatever costs Mr. Youmans is entitled to in those actions would have to be paid by the plaintiff in this action, to redeem her interest as mortgagee of the leasehold estate, and the amount thus payable is consequently a matter of much importance to the parties in this controversy and was strenuously litigated in this action. It appears from the findings that an order ivas obtained for the re-taxation of the costs in the numerous ejectment suits, and that in the mass of them they were reduced as above stated, but that afterward on the 12th of September, 1873, an order waé obtained in the case against Keeler, and some others of the cases known as the Kortright cases, staying the proceedings for re-taxatiori on the ground that the cases had been settled, and directing that the clerk should not readjust the costs in those cases without leave of the court being first obtained, and, it appearing to the court that in some of the cases which had been settled, the defendants on the record, with whom the settlements had been made, were not the real or the sole parties in interest, but that other parties were interested as mortgagees or incumbrancers, the order further provided that in such eases motions might be made, on notice, for a readjustment of the costs by the clerk.

At the time that order was made the present action was pending. A stipulation was afterward entered into on the part of the plaintiffs and defendants in the ejectment suits, called the Kortright cases, including the action against Keeler, which was signed by Mr. Youmans and by Gilbert and Maynard, then the attorneys for the plaintiff in this action, for the re-taxation of the costs in the Kortright cases in conformity with the opinion of Balcom, J., excepting those cases actually settled and ended. But that stipulation contained a provision that it should not prejudice or affect the right of any person interested in the premises in controversy in any of the cases that were settled and ended, to make a motion or institute any other proceeding or action as they might be advised, to have said costs re-taxed and readjusted.

The right of Harriet Keeler, the plaintiff, as mortgagee of the premises in question, to move for a re-taxation of the costs, notwithstanding the settlement made between the landlord and the mortgagor, was thus preserved by the stipulation of the parties. But even in the absence of such a stipulation it is difficult to see on what principle the interest of the mortgagee should be bound by the consents and waivers given by the mortgagor, and why it Avould not be a fraud upon the rights of the mortgagee to enforce them against her. She had the legal right to redeem on payment of the back rent and the costs legally incurred. It was demonstrated by a re-taxation that the judgments had been entered for an amount largely in excess of the costs legally incurred, in fact nearly five times the legal amount, and although it was competent for Burr Keeler, the mortgagor, to waive objection to these costs on making his settlement Avith Youmans, Avhercby he Avas to acquire the fee, the dealings betAveen those parties should not be alloAved to affect the rights of the mortgagee, Avhose mortgage Avas duly recorded, and who has done no act in affirmance of the judgmerits for costs. The amount of those costs cannot, however, be adjusted in this action. It is brought simply for the foreclosure of the mortgage. No writ of possession having been executed, the purchaser under the mortgage will acquire the leasehold title, subject only to the payment of the amount due for back rents and the legal costs. If the plaintiff desires to avail herself of the right to have the costs re-taxed, she should make her motion for that purpose, to which motion we see no answer other than the delay which has intervened. That delay may well be attributed to the pendency of this action, and to the fact that after the judgment was rendered herein, which sustained the validity of the execution of the writ of possession, a re-taxation would have been of no avail to the plaintiff so long as that judgment remained in force. These matters will doubtless be taken into consideration by the court to whom the application for a re-taxation may be made in pursuance of the stipulation, and we will not anticipate its decision.

On a new trial a proper judgment can be rendered for the foreclosure of the plaintiff’s mortgage and a sale of the mortgaged premises, subject only to the prior lien to the extent of the back rent due on the lease, and the costs legally incurred in the ejectment suits, and against these the claim of the plaintiff to allowances for use and occupation may be determined upon the facts which may be established on such new trial.

The judgment should be reversed and a new trial ordered, with costs to abide the event.

All concur.

Judgment reversed.

        Ante, p. 20.


source: Caselaw Access Project

author: Rapallo, J.

license: Public Domain

text:
    Barbara Popfinger, Respondent, v. Henry Yutte et al., Appellants.
    The provision of the State Constitution of 1846 (Art. 14, § 12), continuing the local city courts with their then powers and jurisdiction “until otherwise directed by the legislature,” was superseded by the provision of the judiciary article of the Constitution, as amended in 1869 (Art. 6, § 12) in reference to said courts; and as, by the latter provision,the then existing powers and jurisdiction of said courts are permanently continued, and no authority is given to the legislature to take away any of their powers or jurisdiction, a statute attempting so to do is unconstitutional.
    Accordingly held, that, as, at the time of the adoption of said amended j udiciary article the Superior Court of the city of New York had, within its territorial limits, general j urisdiction in equity co-equal with that of the Supreme Court, the provision of the Code of Civil Procedure (§ 268, subd. 5), which purports to confine that jurisdiction, in actions by judgment creditors, to actions on its own j udgments, is inoperative and void.
    An objection to the jurisdiction of said Superior Court is, under the Code of Civil Procedure (§ 266), matter of defense, and is waived by defendant’s appearance, unless pleaded.
    In an action by plaintiff, as judgment creditor of defendant H., to reach certain real" estate in the hands of defendant C., the wife of H., it appeared that, after the indebtedness to plaintiff was incurred, H. conveyed certain premises to R., subject to mortgages thereon, to secure certain claims held by R. against him. This conveyance was not found to be fraudulent in any respect. R. sold the premises, receiving in exchange a mortgage thereon for himself and certain other premises, which, at the request of H., were conveyed to C. The mortgage was accepted by R. in full satisfaction of his claims against H. On foreclosure the mortgaged real estate did not sell for sufficient to pay the prior- mortgages, and R. received nothing on his mortgage; 0. realized about $155 out of the premises so conveyed to her, and with this sum and other moneys of her own, in all $1,300, she purchased other premises, which she subsequently sold, realizing therefrom $6,500, and with $5,500 of the avails she purchased the premises in question. Held, the evidence did not justify a finding that the conveyance to C., so made with the consent of R., was in fraud of the rights of the creditors of IT-; that R. had a perfect right to retain and apply the proceeds of the property conveyed to him by H. up to the amount of his claims, and in consenting to allow 0. to take title to the property received in exchange, as its value, with what he himself received, was less than said claims, the creditors of H. could in no way have been defrauded; and that, therefore, O. was not bound to account to the creditors of her husband for any benefits derived from its proceeds; and as no money belonging to him was traced into the premises in question, said creditors could not set up any resulting trust therein.

      Popfinger v. Yutte (17 J. & S. 312) reversed.
    (Argued January 20, 1886;
    decided March 26, 1886.)
    Appeal from judgment of the General Term of the Superior Court of the city of New York, entered upon a.n order made at the Hovember term, modifying, and affirming as modified, a judgment in favor of plaintiff, entered upon a decision of the court on trial at Special Term. (Reported below, 17 J. & S. 312.)
    This action was brought by plaintiff as judgment creditor of defendant Henry Yutte to have her judgment adjudged to be a lien upon certain premises known, as Ho. 189 Christie street in the city of Hew York, the title to which is in defendant Christine, wife of said Henry Yutte, on the ground that the said title was acquired by Mrs. Yutte in fraud of the rights of the creditors of her husband.
    The material facts are stated in the opinion.

      William G. McCrea for appellants.
    The judgment is appealable to this court. (Chautauque Bk. v. Risley, 19 N. Y. 369.) The Superior Court had no jurisdiction whatever of this action. (Code of Civ. Pro., §263, subd. 5.) To justify the courts in declaring a statute unconstitutional, there must be a clear case of conflict with the Constitution. (Roosevelt v. Goddard, 52 Barb. 533; People v. Bennett, 54 id. 480; Macomber v. New York, 17 Abb. 35; Ex parte McCullum, l Cow. 550; Kerrigan v. Force, 68 N. Y. 381; In re N. Y. El. R. R. Co., 70 id. 327—361; In re Gilbert El. R. R., id. 361.) If the court has no jurisdiction of the subject-matter of this action, no act of the parties could confer the same, and the objection thereto can be taken at any stage. (Dakin v. Demining, 6 Paige, 95; McMahon v. Rauhr, 47 N. Y. 67; Harriott v. N. J. R. & Mans. Co.,2 Hill,262; Peoples. Hartwell,2Park. 32; People v. Campbell, 4 id. 386; Smith v. Shaw, 12 Johns. 257; Gallahan v. Mayor, etc., N. Y., 66 N.Y. 656.) A creditor of the vendor seeking to set aside a sale on the ground of fraud must give affirmative evidence to establish the fraudulent intent; mere suspicion is not enough. (Jaeger v. Kelley, 52 N. Y. 274; Bk. of Silver Creek v. Kelly, 22 Barb. 550; Holding v. Burnham, 53 N.Y. 73; Genesee Bk. v. Mead, 92 id. 637; Digert v. Remerschnider, 32 id. 636.) If a finding of fact be wholly unsupported by evidence it is reviewable here, (Putnam v. Hubbell, 42 N. Y. 106; Beck v.
      Sheldon, 48 id. 365; Meacham v. Burke, 54 id. 217; Terry v. Wait, 56 id. 91.) A trustee who mingles the trust moneys with his own and uses it must pay interest. (Mumforrd v. Murray, 6 Johns. Ch. 1; Duffy v. Duncam,, 32 Barb. 587; Cowing v. Howard, 46 id. 579 ; Rapalje v. Hall, 1 Sandf. Ch. 399.) The rule that a man may lose his own property by mixing it with that of another only applies where it cannot be distinguished after the admixture. (Frost v. Willard, 9 Barb. 440; Morgan v. Gregg, 46 id. 183; Seymour v. Wycoff, 10 N. Y. 213.)

      Henry WeJde for respondent.
    The burden of proving that the transaction was not fraudulent rested with the defendants. (Dunlap v. Hawkins, 59 N. Y. 342; Newman v. Cordele, 43 Barb. 448.) The defendant Christine Yutte is liable as trustee to plaintiffs for the property now held by her. (R. S., part 3, chap. 1, tit. 2, § 52; McCartney v. Bostwick, 32 N. Y. 53; Kamp v. Kamp, 46 How. 143; Garfield v. Hatmaker, 15 N. Y. 475.) The trust estate or any of its proceeds may be followed by a cestui gue trust through the several transmutations, so long as any part of it is distinguishable. (Stephens v. Sinclair, 1 Hill, 143.) The plaintiff is entitled to the satisfaction of her entire judgment out of the property now in the hands of the defendant Christine Yutte, upon the further ground that Christine Yqtte, as trustee, is hound to account for the gains'which she secured with the judgment debtor’s property. (Story’s Eq. Jur., §§ 1210, 1212; Penman v. Slocum, 41 N. Y. 59.) A trustee who intermingles trust property with Kis own must distinctly point out his own or lose all, and if he deals with the trust estate the cestui gue trust may claim the gains. (Tiffany on Trusts, 34 ; Seaman v. Cook, 14 Ill. 501; Russell v. Jackson, 10 Hare, 204, 209.) The defendant Christine Yutte was a party to the fraud upon her husband’s creditors, and the transfer to her is absolutely void. It cannot serve as security for moneys expended by her. (Davis v. Leopold, 87 N. Y. 620.)
   Rapallo, J.

We think that the Superior Court of the city of New York had jurisdiction of this case. By the Constitution of 1846, art. 14, § 12, the Superior Court was continued, until otherwise directed by the legislature, with its then present powers and jurisdiction.

Under the Code of Procedure the Superior Court of the city of New York had, within its territorial limits, general jurisdiction in equity co-equal with that of the Supreme Court. (Bowen v. Trustees, etc., Irish Presb. Congregation, 6 Bosw. 245 ; Porter v. Lord, 4 Duer, 682.)

This jurisdiction existed at the time of the adoption of article 6, which was on the 6th of December, 1869. By that article (Art. 6, § 12) it was declared that the Superior Court of the city of New'York, with other local courts, was continued with the powers and jurisdiction it then possessed and such further civil and criminal jurisdiction as might be conferred by law. The words “ until otherwise directed by the legislature,” which were contained in section 12 of article 14 of the Constitution of 1846, were omitted in the amendment of 1869. Although there was no express repeal or amendment of article 14, section 12 of the Constitution of 1846, yet we are of opinion that as the amended article 6, section 12, covers the same subject as section 12 of article 14, it must be regarded as a substitute therefor and as superseding it and permanently continuing the then existing jurisdiction of the Superior Court, with such further jurisdiction as might be conferred, and depriving the legislature of the power of taking away from that court any of the jurisdiction or powers which it possessed at the time of ,the adoption of article 6. (Ross v. City of Brooklyn, 69 N. Y. 605.)

For this reason .we think that subdivision 5 of section 263 of the Code of Civil Procedure, which purports to confine the jurisdiction of the Superior Court in actions by judgment creditors to actions on its own judgments, is inoperative. The objection is unavailable in this action for the further reason that it was not taken in the answer ; as the Code of Civil Procedure (§ 266) provides that want of jurisdiction by reason of tire non-existence of any of the jurisdictional facts specified in section 263, is matter of defense and is waived by appearance unless pleaded.

The grounds of the plaintiff’s present action are that on the 10th of June, 1882, she recovered a judgment in the Marine Court of the city of New York against Henry Yutte for $494.-76, upon which execution was issued and returned unsatisfied. The trial judge found that the indebtedness upon which that judgment was recovered arose prior to the year 1877; that on and prior to July 16, 1877, Henry Yutte was the owner of a piece of land situated at Hempstead, New York, which was subject to two mortgages amounting together to $7,500, and was indebted to Carl Iteinig in $500 for money loaned, and in the further sum of $168.01 for a liability which said Heinig had incurred as his surety on an undertaking on appeal; that on the 16th of June, 1877, said Henry Yutte conveyed said land at Hempstead to Heinig as security for .his indebtedness, and Heinig held the equity of redemption in said land, over and above his claims, in trust for Yutte until June 10, 1875 ; that in November, 1878, said land was sold under the foreclosure of the first of said two mortgages and did not bring at such sale enough to pay said mortgages ; that Heinig, while he held the title to said land, had paid an installment of interest on said mortgages (thus increasing his claim to 8880 besides interest), and on the 10th of June, 1878, he sold said premises to Eliza Gricke, receiving therefor a third mortgage thereon for 8500, for himself, and a deed of a house in Jackson street which he allowed to go to the defendant Christine Yutte; that Heinig made the conveyance of the Hempstead property to Eliza Gricke at the request of Henry Yutte and accepted the third mortgage of 8500 in full satisfaction of the debts owing to him by Yutte, and Eliza Gricke, at the request of Yutte, immediately on the conveyance to her of the Hempstead property, conveyed the Jackson street house to Christine Yutte, who paid no consideration therefor, and held the same for the benefit of Henry Yutte ; that this conveyance was made to and accepted by her for the purpose of placing the house in Jackson street beyond the.reach of the creditors of Henry Yutte, and was fraudulent as against his creditors; that in July, 1878, an action for the foreclosure of a mortgage on the Jackson street property was commenced, and that about August 1, 1878, and while said foreclosure was pending, Christine Yutte exchanged the Jackson street property with ¥m. H. Palmer for a house in Avenue C, and took the deed thereof for the benefit of Henry Yutte, so far as his creditors were concerned; that she sold said house in Avenue C, on the 13th of January, 1881, and realized from said sale the sum of $155, over and above the incumbrances thereon, and ten lots of land in New Jersey subject to a mortgage, the value of which lots was unknown ; that she still held said lots at the time of the trial of this action and offered to convey them to the plaintiff; that thereafter Christine Yutte with the $155 realized from'the sale of the house in Avenue C, together with other money derived by her from other sources, amounting in all to $1,300, purchased a lot in Sixth street, New York, from the resale of which she afterward realized $6,500, in August, 1882, yielding to her a profit of $5,000 over and above the sum invested by her in the purchase of the property, and that with $5,500 of the proceeds of the Sixth street property she purchased a house and lot in Christie street”, New York, and still holds the title to the same, and that the said several conveyances to and by her, and the several investments made by the defendants were made with the intent on their part to defraud the creditors of Henry Y ntte.

The court found that only $155 of the money derived by Christine Yutte from the sale of the Avenue C property was invested in the purchase of the Christie street property, and that all the rest of the purchase-money of that property was derived from other sources which do not appear to be connected with Henry Yutte.'

There is no finding that the conveyance from Henry Yutte to Carl Reinig of the Hempstead property was fraudulent in any respect. A finding to that effect was requested by the plaintiff, but was refused by the trial judge. The conclusions of law of the learned judge were that the several conveyances to and by Christine Yutte were void as to the creditors of Henry Yutte ; that in dealing with said premises, and in the "several transfers mentioned, she acted as such trustee to the extent of the interest of Henry Yutte therein; that the plaintiff liad a lien upon the land in Hew Jersey to the extent of his judgment, and was entitled to an accounting for the rents and profits of the several pieces of land held by Christine Yutte in trust for the plaintiff, and to a judgment appointing a receiver, and directing a conveyance to him of the Christie street property, and a sale thereof by him, and the payment to the plaintiff, out of the proceeds of such sale, of the sum of $155, with interest from June 13, 1881, on the plaintiff’s judgment, with the costs of this action.

On appeal by both parties to the General Term from the judgment entered on this decision, the court modified the judgment so as to direct the execution by Christine Yutte to a receiver, of a full and valid warranty deed with the ordinary covenants, of the Christie street property, and a sale thereof by such receiver, and the payment to the plaintiff, out of the proceeds of such sale, of the sum of $494.76, with interest from June 19, 1882, besides costs, etc., and that the judgment, as modified, be affirmed, with costs. From the whole of this judgment the defendant Christine Yutte appeals to this court.

There is very little equity in the case made on the part of the plaintiff. The whole claim on her part is based on the receipt by the defendant Mrs. Yutte. of a conveyance of the Jackson street property, which was part of the proceeds of the sale made by Reinig to Gricke of the land at Hempstead, which had formerly belonged to Henry Yutte. It is very clearly shown by the findings that Yutte’s interest in the property proved to be of no value. That by the consent of Mr. Reinig Mrs. Yutte was allowed to receive the deed of the Jackson street property, which was afterward exchanged for the Avenue 0 property, and thus ultimately yielded the sum of $155, yet that sum was much less than the amount found to be due to Reinig from Henry Yutte, and for which he held the Hempstead property as security, under a conveyance which is in no way impeached. He would have had a perfect right to apply that Jackson street property, or its proceeds, to the payment of his claim against Henry Yutte. The proceeds, up to the amount due Eeinig, did not belong to Yutte, and in consenting to allow Mrs. Yutte to take the Jackson street property neither he nor Mrs. Yutte could in any way defraud the creditors of her husband. The finding of fraud in that respect is wholly fanciful and unsupported. The creditors of Yutte could not have obtained any benefit from the Jackson street property, or its proceeds, unless they exceeded the amount of Eeinig’s claim, had he insisted, as he had a right to do, upon retaining them for himself, and fraud could not be predicated of his consenting, with or without the procurement of Yutte, to Mrs. Yutte receiving the benefits derived from that property. There is nothing in the case to show that Eeinig consented to this arrangement for the benefit of Henry Yutte, or that the latter ever had any title, legal or equitable, to the Jackson street property. All that appears is that Eeinig held the Hempstead property under a valid conveyance,, as security for a debt actually due him from Yutte; that the security was worthless, and that he consented to take for his debt a worthless mortgage for $500, and to give to Mrs. Yutte the benefit of the Jackson street house, by means of which she indirectly realized $155, which was much less than the amount due Eeinig.

The circumstance that by adding to the petty sum thus obtained through the voluntary concession of Eeinig, other money obtained by her from other sources, and which does not appear to have been derived in any way from her husband, she was enabled to make a lucky speculation in the purchase of the Sixth street property, by which she made a profit of $5,000, confers no equity on the plaintiff. The creditors of Henry Yutte were in no way prejudiced by any of the dealings, nor deprived of anything which they could have obtained. Ho funds of theirs or of their debtor were employed in the transaction, but only the sum of $155, which equitably belonged to Eeinig, and which he could have obtained had he not consented to Mrs. Yutte taking the Jackson street property.

The modification made by the General Term is still more inequitable. The whole reasoning of the General Term is based upon an erroneous assumption, viz.: that the trial court found that the transfer of the Hempstead property made by Henry Yutte to Reinig was made for the benefit of and in trust for Henry Yutte. On that assumption is built the theory that as to Yutte’s creditors the Hempstead property still belonged to Yutte, and that the Jackson street property having been given in exchange for that, the consideration for the Jackson street property was furnished by Yutte ; that, consequently, Mrs. Y utte took the title to the Jackson street property subject to a resulting trust in favor of the creditors of her husband, and is bound to account to them for all benefits derived from its proceeds through their subsequent mutations.

A fundamental difficulty with this view of the case is that the trial court made no such finding as is attributed to it; but, although requested by the plaintiff, declined to find that there was any fraud in the transfer by Yutte to Reinig. On the contrary, the court found as facts that Yutte was actually indebted to Reinig for borrowed money, and that Reinig had other claims against him, and that the transfer of the Hemp-stead property was made to Reinig as security for that indebtedness, and that Reinig afterward paid one installment of the interest on the $7,500 of mortgages to which the property was subject. The only reference to a trust for the benefit of Yutte contained in the findings is in the finding that Reinig held the equity of redemption in said land, over and above the amount of his claims against Yutte, for the benefit of and in trust for the defendant Yutte, up to the 10th of June, 1878, when he conveyed to Eliza Gricke. Ho fraud or invalidity in the transfer is shown by such a finding. All that it discloses is that Yutte was entitled to any surplus over the amount of the claims of Reinig; and it is clear that there was no surplus, as all that was realized on the sale of the property was a third mortgage for $500, which was wiped out by the foreclosure of the first mortgage, and the Jackson street property which was exchanged for the avenue C lot, from which was realized ultimately $155 —not enough to reimburse Reinig for the interest he had paid on the prior mortgages on the Hempstead property, to say nothing of his claims thereon, for which he held it as security. Reinig had a perfect right to allow Mrs. Yutte to have the benefit of the Jackson street property and to place it beyond the reach of the creditors of Yutte ; and even if this were done" at the request of Yutte, it would not invalidate the transaction nor make the property his. No money belonging to Yutte was, therefore, traced into the Sixth street property, and the creditors of Yutte could not, therefore, set up any resulting trust therein, nor in the Christie street property, which was purchased with the proceeds of the Sixth street property.

It is needless to discuss the question whether, if $155 of Yutte’s money had been employed in the purchase of the Sixth street property, his creditors would be entitled to follow the entire profit of $5,000 realized therefrom into the Christie street property.

The judgments of the General and Special Terms should be reversed and a new trial ordered, costs to abide the event.

All concur.

Judgments re versed.


author: Eapallo, J.

text:
    Chester S. Cole, Respondent, v. The State of New York, Appellant.
    The act of 1885 (Chap. 238, Laws of 1885), providing for the hearing and determination before the board of claims, of the claims of certain persons while acting as captain and harbor-masters of the port of New York, and ratifying and legalizing their acts, is not in contravention of the provision of the State Constitution (Art. 3, § 19), declaring that “ the legislature shall neither audit nor allow any private claim or account against the State,” etc. While the said provision prohibits the legislature itself from auditing or allowing such claims, it recognizes its power to provide by law for the audit and allowance thereof by some appropriate tribunal.
    The power of the legislature in this respect is not restricted to claims founded on a legal liability enforceable as against an individual by action, but in special cases, where in its judgment justice requires, it may give "power to the board of claims or other tribunals, to disregard defenses strictly legal, and to hear and determine claims against the State, founded in right and j ustice.

      It seems, however, as a general rule, and in the absence of express provision, the authority of said board is confined to the allowance of legal claims.
    The said act is not violative of the constitutional provision (Art. 3, § 16), declaring that a private or local bill shall embrace but one subject, and that shall be expressed in its title.
    Nor does said act contravene the constitutional prohibitions (Art. 3, §§ 18, 24), against the passage of private bills, creating, increasing or decreasing fees, percentages or allowances of public officers during the term for which they were appointed, or granting extra - compensation to public officers.
    The said act is not in contravention of the Constitution of the United States.'
    (Argued January 21, 1886;
    decided March 26, 1886.)
    Appeal from an award of the board of claims made July 31, 1885, in favor of plaintiff, upon a claim presented under the act, chapter 238, Laws of 1885.
    The facts, so far as material, are stated in the opinion.

      Denis O'Brian for appellant.
    This act of 1885 (Chap. 238) violates section 16, article 3 of the Constitution. (In re Paul, 94 N. Y. 507; City of Watertown v. Fairbanks, 65 id. 588; In re Blodgett, 89 id. 395; In re Lands in Town of Flatbush, 60 id. 398, 407; Peoples. Sup'rs of Chautauqua Co., 43 id. 21; 1 Dwarris on Statutes, 354; People v. Allen, 42 N. Y. 378 ; Huber v. People, 49 id. 135; Gaskin v. Meek, 42 id. 186 ; Baldwin v. Mayor, etc., 2 Keyes, 392; In re Estate of Goddard, 94 N. Y. 548.) If it be claimed that these claimants are in office under any law not repealed by the act of 1883, then the act of 1885 is in violation of sections 18 and 24, article 3 of the Constitution. (People v. Albertson, 55 N. Y. 50.) The act of 1885 violates section 19, article 3 of the Constitution. (In re Murphy, 24 Hun, 594; Morris v. People, 3 Denio, 381; Baldwin v. Mayor, etc., 2 Keyes, 399; Cooley on Const. Lim. 88, 174; People v. Otis, 24 Hun, 522 ; affirmed, 90 N. Y. 48; Commonwealth v. Maxwell, 27 Penn. St. 444, 456; Burch v.
      Newbury, 10 N. Y. 371; Bagg's Appeal, 43 Penn. St. 512 ; People v. Sup'rs of Kings, 52 N. Y. 563.) The Constitution furnishes no authority for gratuities, or for raising money by taxation for giving away, or creating by “ legislative judgments an indebtedness or obligation against the State where otherwise there could be none, either legal, equitable or moral. (Perkins v. Inhabitants of Milford, 59 Me. 315, 318 ; Baldwin v. Mayor, etc., 2 Keyes, 399; 60 N. Y. 398, 406 ; Weismer v. Village of Douglas, 64 id. 91; Guilford v. Supervisors, 13 id. 143.)

      J. Rider Cady for respondent.
    The State assumes liability for the result of the negligence of its officer’s or mere employes, where without such statute its sovereignty would prevent recovery. (Sipple v. State, 99 N. Y. 284 ; Lewis v. State, 96 id. 71.) The whole law-making power of the State is vested in the legislature which is omnipotent, unless restricted by the express or implied provisions of the State or National Constitution. (N. Y. Const., art. 3, § 1; Potter’s Dwarris on Statutes, 62 ; Cooley’s Const. Lim. [5th ed.], rule 4, p. 199 ; rule 5, p. 202; rule 6, pp. 205, 207; In re Sackett St., 74 N. Y. 95 ; People v. Bradley, 64 Barb. 228 ; Tifft v. City of Buffalo, 82 N. Y. 204.) The practical construction by the legislature in- many successive sessions, as shown by its statutory enactments, is entitled to great weight in the interpretation of the Constitution. (People, ex rel. Williams, v. Dayton, 55 N. Y. 367; Dermott v. The State, 99 id. 111.) The act of 1885 (Chap. 238) is not unconstitutional, because it legalizes past acts and is in that sense retrospective. (3 Story’s Com. on Const., § 1339 ; Cooley’s Const. Lim. [5th ed.] 321; Burch v. Newbury, 10 N. Y. 520; Southwick v. Southwick, 49 id. 520; Bay v. Gage, 36 Barb. 447.) The-right of the State of New York to provide police regulations for the waters of the port of New York, provided the State sees fit to pay for their enforcement by a salary and not by a tax upon tonnage or by any other burden upon commerce forbidden by the Federal Constitution, has been judicially sustained as a proper exercise of the police power of the State. (Cooley’s Const. Lim. [5th ed.] 722; Vanderbilt v. Adams, 7 Cow. 349 ; Benedict v. Vanderbilt, 1 Robt. 194; Mobile v. Kimball, 102 U. S. 691.) All presumptions are in favor of the constitutionality of the statute; an adverse doubtful construction is not sufficient. (In re N. Y. El. R. R. Co., 70 N. Y. 327; People v. Sup’rs of Orange, 17 id. 235 ; People, ex rel. Bolton, v. Albertson, 55 id. 50 ; People, ex rel. Hatfield, v. Comstock, 78 id. 356; Sage v. City of Brooklyn, 89 id. 196.)
   Eapallo, J.

This appeal must be determined on the facts found by the board of claims, and the conclusions of law stated by them in their decision, and excepted to by the State. Even if there should be found in the opinions of the members of the board any views in which we do not concur, that would not be ground of reversal, provided we concur in their conclusions of law.

Various points were argued by the learned attorney-general in support of the appeal, to which we will refer, but the main ground upon which he claimed, upon the argument, that the decision of the board of claims should be reversed, was that the act of 1885 (Chap. 238) contravened section 19 of article 3 of the Constitution of this State, which provides that “ the legislature shall neither audit nor allow any private claim or account against the State, but may appropriate money to pay such claims as shall have been audited and allowed according to law.’ ’

This being the principal point urged, we will first give it our attention.

The act of 1885 (Chap. 238, § 1) enacts that the acts and services of Chester S. Cole while acting, as captain of the port of the city of ¡New York, and of eleven other persons named in the act, while acting as harbor-masters of the same port, “ actually performed by them from and including May 24,1883, to and including May 24, 1884, are hereby respectively ratified, legalized and confirmed.”

Section 2 enacts that “jurisdiction is hereby conferred upon the board of claims to hear, audit and determine the claims of the persons named in section 1 hereof, or of tlieir legal representatives, for a reasonable compensation for such services rendered, and for expenditures incurred by said individuals respectively as acting captain of the port of New York and harbor-masters of the port of New York from and including the 24th day of May, 18S3, to and including the 24th day of May, 1884.”

It is apparent that the act does not come within the prohibition against the auditing by the legislature of any private claim. The act does not purport to audit the claims. .This the legislature could not do, however just the claim, or however legal it might be if preferred against an individual. The Constitution prohibits the legislature from exercising the power of itself auditing claims, which is in its nature judicial, but provides for the payment of claims which shall have been audited or allowed according to law ; thus recognizing the power of the legislature to provide by law for the auditing and allowing by some appropriate tribunal of claims against the State.

It is contended, however, that the act does come within the prohibition against allowing claims against the State.

It must be observed that the act of 1885 does not even assume to allow these claims. It simply submits them to the arbitrament of the board of claims, a judicial body established for the purpose of passing upon claims against the State. It gives jurisdiction to that tribunal to hear and determine those claims, but does not dictate how it shall decide upon them. The only limitation upon the power of the board to decide is, that it shall confine itself to a reasonable compensation for services performed and expenses incurred during the year specified. Under the authority conferred by the act, that tribunal, if it deemed the claims unjust, might have rejected them in toto. The power to hear and determine includes power to reject as well as to allow. Construing the constitutional restriction literally, it was not violated by giving to the board jurisdiction to hear and determine. The enactment was consequently purely legislative an.d in no sense an exercise of judicial power.

It is contended, however, that the enactment -was violative' of the spirit and intent of the constitutional prohibition, if not of its letter. That it was intended not merely to prevent the legislature from itself acting judicially in passing upon private claims, but from passing any law under which a private claim could be recognized by or established against the State, however just and equitable it might be, unless it was founded on a legal liability which could be enforced by the courts of j ustice against an individual or a corporation. We find no such restriction upon the legislative power in the State Constitution. The act establishing the board of claims (Laws of 1883, chap. 205, amended by Laws of 1884, chap. 60) confers upon the board jurisdiction to hear, audit and determine all private claims which shall have accrued within two years, except such as are barred by existing statutes. But that restriction was imposed by the legislature and is subject to modification by it.

The statute of limitations and other legal defenses are, under the general law, available to the State as against a private claim preferred to the board of claims, and as a general rule it has been considered that the authority of the board is confined to the allowance of legal claims. But can it be maintained that it would be beyond the power of the legislature, in special cases, where in its judgment justice and right demanded it, to give power to the board of claims to disregard defenses strictly legal? We are unable to find in the Constitution anything which deprives the legislature of the power of giving to the board of claims, or any other proper tribunal, jurisdiction to hear and determine claims against the State which are founded in right and justice, solely for the reason that they could not be enforced against an individual in the courts. Power to disregard the limitation as to time was exercised in chapter 204 of the Laws of 1884, which enacted that the claim of James Galloway before the board of claims should be exempted from the limitation contained in the act of 1883 (Chap. 205). And by chapter 418 of the Laws of 1884, exclusive jurisdiction was conferred upon the board of claims to audit and allow the claims of owners of diseased cattle slaughtered to prevent the spread of contagious diseases, though it is by no means clear that for the public safety the legislature might not require the destruction of such cattle without making compensation.

Where the creation of a particular class of liabilities is prohibited by the Constitution, it would of course be an infraction of that instrument to pass any law authorizing their enforcement, but in the absence of any such prohibition there is no good reason why the State should he powerless to do justice, or to recognize obligations which are meritorious and honorary and to provide tribunals to' pass upon them. The legislative power is sufficient, even as between individuals, to afford new remedies and to create liabilities not before existing, where they are based upon general principles of justice.

As a general rule money expended or services rendered by one individual for the benefit of another, but without his request or authority, do not create a legal liability on the part of the person benefited to make compensation. But a law which should provide that in every such case, if the party benefited ratifies the acts of the other, and accepts the benefits, he should be liablg, would he free from objection, so far, at all events, as it should apply to future transactions. Where the legislature is dealing with the imperfect obligation arising from such a state of facts, it seems to us that it does not transcend its powers by passing a law affording a remedy even in respect to past transactions, where the State adopts the acts and is the party to make the compensation, and no rights of individuals, which are protected by the Constitution, are invaded.

In this point of view, it is material to consider the nature of the claim which the board of claims was empowered by the act of 1855 to hear and determine, and the determination which it made.

The office of captain of the port was created by chapter 436 of the Laws of 1860. Section 1 of that act authorized the appointment of a captain of the port, to hold office for three years, and section 2 prescribed his duties, which were, to prosecute for all violations of law in respect to the harbor of Hew York; to provide suitable accommodations at the piers, slips and basins in said harbor, for the lading and discharging of vessels, and to designate anchoring grounds for vessels in said harbor. Section 3 authorized the appointment of eleven harbor-masters to assist the captain in the discharge of his duties. Section 0 provided that all fines and penalties recovered and fees collectible should constitute a fund to be kept by the captain of the port, and section 7 directed that this fund, after deducting office and legal expenses, be divided by the captain of the port between himself and the harbor-masters. ¡¿’The act of 1862 (Chap. 407), entitled “ An act defining and regulating the powers, duties and compensation of the captain of the port and harbor-masters of the port of New York,” was a revision of the former acts relating • to those subjects. Section 1 provided for the appointment of a captain of the port and eleven harbor-masters. The captain was to hold office for three years and until another should be appointed, unless sooner removed for cause. Section 5 directed that he should collect all the fees, etc., and divide them equally, after deducting expenses, between himself and the harbor-masters. Section 6 prescribed the fees, which were, on all domestic and foreign vessels registering over one hundred and fifty tons, one and one-half cents per ton, and on all other foreign vessels three cents per ton, to be computed upon the tonnage expressed in their registers. Section 14 provided, “ the term of office of the present captain of the port and harbor-masters of the port of New York shall continue during the terms for which they were appointed, unless they shall be removed for cause according to the provisions of this act, and the present captain of the port and harbor-masters shall be governed by, and be subject to this act.”

It is very clear that the office of captain of the port was not created by the act of 1862, but was recognized by that act as a then existing office. The claimant was appointed under that act, and it was admitted by the State, on the trial before the board of claims, that on the 5th of January, 1880, the claimant was duly appointed by the governor, by and with the consent and advice of the senate, to the office of captain of the port of New York for the term of three years, and until another should be appointed; that he duly qualified and received his commission, and entered upon the discharge of the duties of his office, and that no successor had been appointed in his place.

In 1876 the Supreme Court of the United States decided, in the case of Inman Steamship Co. v. Tinker (94 U. S. 238), that so much of the act of 1862 (Chap. 457) as required vessels entering the port to pay a percentage per ton, to be computed on the tonnage expressed in their registers, was a violation of the provisions of the Constitution of the United States, which prohibit the States from laying duties on tonnage. The court at the same time impliedly acknowledge the propriety, and even the necessity of the other provisions -of the act of 1862. The means of compensation attempted to be provided for the captain of the port and harbor-masters, by the act of 1862, being thus cut off, the legislature of this State, on the 4th of May, 1883, and while the claimant was still in office, passed, the act (Laws of 1883, chap. 357) entitled “An act to provide for the appointment of a captain of the port of New York, and defining and regulating the powers, duties and compensation of said officer, and repealing chapter 487 of the Laws of 1862.” By section 1 the governor, by and with the advice and consent of the senate, was authorized to appoint an officer, to be called captain of the port of New York, and to assist him, eleven harbor-masters.

By section 13 the captain was to receive an annual salary of $3,500, and in addition thereto such moneys as should have been necessarily expended for office and legal expenses, not to exceed in any month $200. By section 16 ’chapter 467 of the Laws of 1862 was repealed, and the offices created hy that act were abolished. No appointment of captain of the port or harbor-masters appears to have been made under that act of 1883, nor does it appear in the .case that any person other than the plaintiff and the harbor-masters then in office was authorized to discharge the duties of those offices. The act contained no provision such as is contained in the act of 1885 (Chap. 238, § 1) declaring these offices vacant. The office of captain of the port was not, as has been shown, created by the act of 1862 (Chap. 467), and as the act of 1883 purported to abolish only the offices created by the act of 1862, the claimant did not regard his office as abolished, and accordingly held over from. 1883 to 1884 without interference, so far as appears.

On the trial before the board of claims the board took proofs concerning the services rendered, their necessity and value, and the expenses incurred by the claimant, and found as facts that the claimant, from and including May 24, 1883, to and including May 24, 1884, performed and rendered acts and services as captain of the port of New York, and that a reasonable compensation for such acts and services was the sum of $3,150; that during the same period the claimant necessarily incurred and paid as incident to said acts and services as captain of the port for rent of office, janitor’s fees, coal, stationery, and other miscellaneous office expenses, the sum of $410, amounting together to $3,560, no part of which had ever been paid; that by the act of 1885 said acts and services were ratified and confirmed and jurisdiction was conferred upon the board to hear, audit and determine the claim, and on those facts the board .found, decided and determined that the claimant was entitled to an award for the sum of $3,560.

The board appear, from these findings and conclusions, to have passed upon the merits, as well as the amount, of the claimants claim, and whatever may have been said in the opim ions of the different members of the board, its conclusion and decision cannot be disturbed, if the board had the power to decide as it did, and the findings disclose no legal error in the decision. One of the commissioners composing the board was of opinion that the offices of captain of the port and harbormasters were not abolished by the act of 1883, and there was at least plausible ground for that view. The claimant was appointed to hold office until a successor should be appointed, and continued to perform his important official duties, and incur expenses therein after May, 1883, until May, 1884, without, so far as appears, any question having been raised as to his right so to act, and no person being appointed in the interim to perform those duties. The means which the legislature had attempted" to provide by the acts of 1860 and 1862 for his compensation failed, by reason of being found to be violative of tlie Constitution of tlie United States, and the legislature, having these facts before it, in 1885 ratified and adopted the official acts of the claimant, and gave jurisdiction to the board of claims to pass upon his claim for a reasonable compensation and the amount thereof. Even if it should be conceded that the claim was not one which would have been enforced in an action in the courts, if the services had been rendered to an individual, yet it had a basis in justice and equity, and, in our judgment, it was within the constitutional power of the legislature to confer jurisdiction on the board of claims to take cognizance of and determine it.

The further objection is taken that the act of 1885 violates section 16 of article 3 in embracing two subjects, viz., the legalizing of the acts of the captain of the port and harbormasters, and the subject of conferring jurisdiction on the board of claims to hear and determine their claims, and the provision declaring from what date their offices should be deemed vacant.

W e think that even if the act is regarded as local or private, all these subjects are sufficiently connected to authorize their being embraced in one act. They all relate to the captain of the port and harbor-masters of the port of New York, and if the act had borne that title it would be unobjectionable under the decision of this court in Board of Water Commissioners v. Dwight, decided .December 8,1885. It legalizes the acts of those officers during a specified pei’iod, authorizes the submis-, sion of their claims for compensation during the same period to the board of claims, and declares from what date their offices shall be deemed vacant. It was not necessary to pass a separate act for each of these provisions.

The objection that the act of 1885 is a private or local bill creating, increasing or decreasing fees, percentages or allowances of public officers during the term for which they were appointed, or that it grants extra compensation to public officers, and therefore void under sections 18 and 24 of article 3, is in our opinion untenable. The act does not do either of the prohibited things. It does not grant any extra compensation or increase fees, percentages or allowances to officers during the term of office for which they were appointed. The whole theory of the counsel for the State is that during the time the services were rendered the claimant was out of office and his office abolished. It grants no extra compensation. It merely gives jurisdiction to hear and determine a claim for reasonable compensation for services rendered in a case where the compensation attempted to be provided by law failed by reason of the invalidity, under the Constitution of the United States, of the provision for such compensation, and the claimants had consequently rendered beneficial services, accepted and ratified by the legislature, without any valid provision for their compensation. It'does not come within the evils at wl^ieh the constitutional prohibition was aimed.

The point taken before the board of claims, that the act of 1885 was in contravention of the Constitution of the United States, was not insisted upon on the argument in this court and has no foundation. The only provision of the act of 1862, which was subject to that objection, was that which required vessels loading or unloading in the port of Hew York to pay a certain percentage per ton, to be computed on the tonnage expressed in their register or certificate of enrollment. (Inman S. S. Co. v. Tinker, 94 U. S. 238.)

The award of the board of claims should be affirmed, with costs.

All concur, except Danfoeth, J., dissenting.

Award affirmed.

      101 N. Y. 9.


author: Eabl, J.

text:
    Jacob Lorillard, Respondent, v. William P. Clyde et al., Appellants.
    Defendant, for a valuable consideration, guaranteed to plaintiff annual dividends of not less than seven per cent upon stock held by the latter in a corporation. In an action upon the guaranty to recover dividends for the years 1877 and 1878, defendants pleaded in bar a judgment in plaintiff’s favor in an action brought by him-in 1881, to recover dividends for the years 1875 and 1876, in which action defendants pleaded as a bar the pend-ency of a former action to recover the dividends for 1877 and 1878, the complaint in which action was dismissed subsequent to the trial of the second action. Held, that the question as to the validity of the plea in bar was res adjudioata, as between the parties, and defendants were estopped by the decision in the second action; also held, that it was not essential to raise the objection by pleading, as it appeared in the record of the judgment introduced by defendants, for the purpose of establishing their defense; and that it was not necessary that the record on appeal should show it was raised in the court below; also, that if there was no adjudication in the second action, constituting the estoppel, defendants should have made it appear on the trial of this action and have had some finding in reference thereto.
    (Argued March 4, 1886 ;
    decided March 26, 1886.)
    Appeal from judgment of the General Term of the City Court of Brooklyn, entered upon an order made August 11, 1884, which affirmed a judgment in favor of plaintiff, entered upon a decision of the court on trial without a jury.
    This action was brought upon a guaranty executed by defendants, which, wherein also the material facts are stated, is set forth in the opinion.

      B. F. Tracy for appellants.
    The true distinction between demands or rights of action which are single and those which are several and distinct is that the former immediately arise out of one and the same contract and the latter out of different acts or contracts. (Secor v. Sturgis, 16 N. Y. 548; Ref. Prot. Church v. Brown, 54 Barb. 191; O’Beirne v. Lloyd, 43 N. Y. 248 ; Jex v. Jacob, 19 Hun, 105; Nathan v. Hope, 77 N. Y. 422.) By the submission to arbitration the actions then pending were discontinued. (McNulty v. Solley, 95 N. Y. 242.) The plaintiff can have but one recovery upon a single and indivisible cause of action, and whenever a recovery has been had it may be pleaded in bar of any other action pending for the same cause. (Nicoll v. Mason, 21 Wend. 339 ; Duffy v. Lyttle, 5 Watts, 120; Casebeer v. Mowry, 55 Penn. 419.) The court below erred in holding that the submission to arbitration amounted to nothing more than an agreement to discontinue, and did not amount to an actual discontinuance of the actions then pending. (McNulty v. Solley, 95 N. Y. 242, 245; Wells v. Lain, 15 Wend. 101.) It was plaintiff’s duty to enter an order to discontinue if he ■ wished to go into court again. (Beals v. Cameron, 3 How. 414; Marston v. Lawrence, 1 Johns. Cas. 397; Averill v. Patterson, 10 N. Y. 500, 501.) It is now too late to raise the point of res adjudícala, it not having been raised upon the trial or upon appeal in the court below. (Draper v. Stouvenel, 38 N. Y. 219; Hoffheimer v. Campbell, 59 id. 269; Thayer v. Marsh, 75 id. 340 ; Wellington v. Morey, 90 id. 656.) On a point of res adjudícala it is always competent to show what was in fact submitted to and determined by the court, and this may be shown by paroi. ( Wilcox v. Lee, 1 Abb. Pr. [N. S.] 250.) The defendants were not bound to plead the former suit pending. They were at liberty to allow the second action to proceed to trial upon the merits, and in case of a recovery by the plaintiff, to plead that recovery in bar to the action first brought. (Jex v. Jacob, 19 Hun, 105; Nichol v. Mason, 21 Wend. 339 ; Code of Civ. Pro., § 1209.)

      Horace Barnard for respondent.
    The doctrine of res adjudícala extends to every matter which, under the issues, might have been litigated and decided in the suit. (Barth v. Burt, 43 Barb. 628, 632; Burdeck v. Post, 12 id. 168; La Guen v. Gouverneur, 1 Johns. Cas. 436, 492; Embury v. Connor, 3 N. Y. 511; Smith v. Smith, 79 id. 634; Herman’s Law of Estoppel, 83, § 81.) All rules of practice give way to the necessities of the case and the demands of justice, and their application is left to the judgment and discretion of the court. (Secor v. Sturgis, 16 N. Y. 560; Risley v. Squire, 52 Barb. 280.) The plaintiff could not amend his complaint in this action so as to include the cause of action in the Supreme Court, and was not bound to do so if he could. (Porter v. Kingsbury, 77 N. Y. 167.) Ho action can be discontinued without an order, otherwise the court would have no jurisdiction to entertain the motion to discontinue or make any order in the action. (Carlton v. Darcy, 75 N. Y. 376; Averill v. Patterson, 10 id. 500; Coleman v. Wade, 6 id. 49 ; Grosvenor
      v. Hunt, 11 How. 355; Fanshawe v. Heard, 1 M. & P. 191; Graham’s Pr. 393; Buel v. Dewey, 22 How. 342-344 ; Wells v. Lain, 15 Wend. 101; People v. Onondaga Com. P., 1 id. 314.) A partner has no power to submit to arbitration on behalf of his firm. (Stead v. Salt, Bing. 101, 103; Karthaus v. Ferrer, 1 Pet. 222, 228 ; Warrington v. Highham, 13 Barb. 612.) The causes of action are not identical. (Dawley v. Brown, 79 N. Y. 397; Stowell v. Chamberlain, 60 id. 272 ; Perry v. Dickinson, 95 id. 345; Field on Priv. Corp., § 107 ; Butler v. Gl. Co. St. Co., 18 Hun, 47; In re Le Blanc, 4 Abb. N. C. 221; Thompson on Stockholders, § 19 ; Kelsey v. Ward, 16 Abb. Pr. 98-103 ; affirmed, 38 N. Y. 83; approved, 79 id. 398; Nathan v. Hope, 77 id. 422; Perry v. Dickerson, 85 id. 350 ; Zimmerman v. Erhard, 83 id. 74; Davies v. Mayor, etc., 93 id. 250-254.)
   Eabl, J.

In May, 1874, the plaintiff and the defendants were the owners of certain vessels used in the transportation business between the cities of New York and Philadephia, and they entered into a mutual agreement for the consolidation of their respective interests and for the formation of a corporation under .the laws of this State, with a capital of $300,000, to be divided between them. It was part of the agreement that the defendants should have the management of the corporation and its business, and in consideration thereof they guaranteed to the plaintiff dividends on his stock in the corporation at the rate of not less than seven per cent per annum for seven years.' In pursuance of that agreement the interests of the parties were consolidated, the corporation was formed, stock was issued and the business of the corporation entered upon. Dividends were due July 1, 1876, but had not been declared or paid, and in September thereafter the plaintiff brought an action in the Supreme Court in the city of New York to recover the dividends for the two years preceding that date. In September, 1878, the plaintiff commenced another action in the City Court of Brooklyn to recover the dividends for the years 1877 and 1878. Thereafter, on the 15th day of October, 1878, the parties made and executed an arbitration agreement, which recited the litigations then pending, declared it to be for the interests of both parties that the litigations should be terminated, and for the purpose of accomplishing that object they agreed to, and did refer all matters in dispute to an arbitrator named. Soon thereafter the plaintiff revoked and withdrew from the arbitration, and no award was ever made on the submission. The two actions were left pending in the courts, and on the motion of the defendants, which was opposed by the plaintiff, an order was entered in the Brooklyn City Court on the 24th day of October, 1878, dismissing the action commenced therein ; and on the twenty-sixth of the same month, the plaintiff commenced this action in the same court for the same cause, to-wit: to recover the dividends for the years 1877 and* 1878. The 'defendants demurred to the complaint in that action, and the proceedings therein came to this court, and the opinion overruling the demurrer is reported in 86 N. Y. 384. On the 16th day of December, 1878, upon the motion of the defendants, also opposed by the plaintiff, an order was entered in the Supreme Court discontinuing the action commenced therein, as above mentioned ; and on the 18th of November, 1881, the plaintiff commenced an action against the defendants in the Superior Court of the city of New York for the same cause, to-wit: to recover the dividends due for the two years preceding the 1st day of July, 1876. Judgment was recovered in that action against the defendants in April, 1882, for upwards of $15,000. Among other defenses to the present action, that recovery and judgment by a supplemental answer are pleaded in bar. This action was thereafter brought to trial, and a recovery therein had for upwards of $30,000, which has been affirmed in the court below.

At the time of the commencement of this action, and also at the time of the commencement of the action in the Superior Court, all the dividends claimed in both actions were due and payable under the agreement. The claim of the defendant is that all these dividends being due constituted but one cause of action under the agreement of May 15, 1874, and, therefore, that the plaintiff was bound to include them all in one action, and that his recovery in the Superior Court was a bar to this action; and whether it was or not is the sole question for our determination.

To the action commenced m the Superior Court in which the plaintiff had his first recovery, the defendants interposed this defense, to-wit: That at the time of the commencement of this action there was and now is another action pending in the City Court of Brooklyn between the same parties as this action, and for the same cause of action as that set forth in the complaint herein.” If the defendants are right in their present contention that the plaintiff was entitled to maintain but one action to recover for all of these dividends, and that he had but one cause of action against them, then that was a good defense to that action. But the plaintiff recovered, and thus it was adjudged that that was not a good defense; that this action was not for the same cause of action as that; that both actions could proceed, and that the pendency of one could be no* defense to the other. That adjudication estops .and binds these defendants, and they cannot now be heard to say that the two actions 'were commenced for the same cause of action or any portion of the same cause.

But it is contended on behalf of the defendants that this claim of res adgudicata was not made by the plaintiff in the court below, either at the trial or at the General Term. But how are we to know this ? This record does not show that it was not made, and if it was made, the record would probably not show it. This claim would not appear in the pleadings. It was not necessary for the plaintiff to make it when the defendants introduced the record of the Superior Court judgment for the purpose of establishing their defense. They had the right to put in that record, and its force and effect, upon such evidence as either party chose to give, were then to be determined by the court. The trial judge, in his general findings, makes no allusion whatever to the action and judgment in the Superior Court, except that he finds that that action was for the identical cause which was the subject of the prior action in the Supreme Court, and he refused to find, as requested by the defendants, that the Superior Court judgment was a bar to this action. We do not see any place in this record where the point, if made, that the Superior Court judgment had estopped the defendants would necessarily or appropriately appear. If for any reason there was no adjudication constituting the estoppel in the Superior Court, as now claimed by the defendants, they were bound to make that appear upon the trial of this action, and they should have had some finding in reference thereto. The only fact placed before us to show that there was no such adjudication in the Superior Court is a quotation from the points used by the counsel for the plaintiff upon the argument of the appeal in this action at the General Term as follows: The defendants having pleaded the same defense in the Mew York Superior Court, and waived it upon the trial of that action which occurred prior to this, cannot now present the same defense, such waiver amounting to a consent that the actions be tried as brought.” But this is not the proper way to show what took place at the trial of the action. That must be determined by the record, and there we must look to find what was adjudicated, and what rulings, objections and claims were made. At the trial of this action both parties probably had a right to give evidence for the purpose of showing what was adjudicated in the Superior Court action. The defendants could have given evidence, if they had any, to show that the plea in abatement in that action was withdrawn from the consideration of the court, and that there was no adjudication thereon. The plaintiff could have controverted such evidence, and might have shown that the withdrawal or waiver was under such circumstances as to estop the defendants from denying that there were two causes of action, and that they consented that they should be treated as such.

We, therefore, see no answer to the claim made by the plaintiff as to the effect of the adjudication in the Superior Court action, and on that ground the judgment should be affirmed, with costs.

All concur, Andrews, J., in result.

Judgment affirmed.


author: Earl, J.

text:
    Mary Coddington, Respondent, v. The Brooklyn Crosstown Railroad Company, Appellant.
    Defendant’s street railroad was'crossed by the track of a steam railroad. A car on defendant’s road in which plaintiff was a passenger was struck at the crossing by an engine passing on the other road and plaintiff was injured. In an action to recover damages for the injury, held, that under the circumstances the defendant was bound to exercise the highest degree of care and prudence, the utmost.human skill and foresight; and that a charge to that effect was proper.
    (Argued March 10, 1886;
    decided March 26, 1886.)
    Appeal from judgment of the General Term of the Supreme Court, in the second judicial department, entered upon an order made May 13, 1884, which.affirmed a judgment in favor of plaintiff, entered upon a verdict.
    This action was brought to recover damages for injuries alleged to have been caused by defendant’s negligence.
    Plaintiff was a passenger on one of defendant’s street cars; the track of its road is crossed by the track of a steam railroad. In passing the crossing the car was struck by an engine passing on the other road, and plaintiff was injured.. The other material facts are stated in the opinion.

      William, C. De Witt for appellant.
    The circuit judge erred as to the rule of law defining the extent of care and prudence required of the defendant to avoid liability. (Weber v. N. Y. C. c& H. R. R. R. Co., 58 N. Y. 451, 460 ; Cleveland v. N. J. Steamboat Co., 68 id. 306 ; Loftus v. Un. Ferry Co., 22 Hun, 33-36; affirmed, 84 N. Y. 455; Kelsey v. Barney, 12 id. 425; Taber v. D., L. & W. R. R. Co., 71 id. 489; Camden Co. v. Burke, 13 Wend. 611, 628, 629; Beiseigel v. N. Y. C. R. R. Co., 40 N. Y. 9, 12, 13; Bowen v. N. Y. C. R. R. Co., 18 id. 410; Dugan v. Champlain Transportation Co., 56 id. 1; Pakalinsky v. N. Y. C. & H. R. R. R. Co., 82 id. 424; Story on Bailments, §11.)

      P. Mitchell for respondent.
    Carriers of passengers bind themselves to carry safely “ as far as human care and fore

      sight will go.” (Maverick v. Eighth Ave. R. R. Co., 36 N. Y. 378; Deyo v. N. Y. C. R. R. Co., 34 id. 9; Bowen v. N. Y. C. R. R. Co., 18 id. 408; Caldwell v. N. J. Steamboat Co., 47 id. 282, 288.)
   Earl, J.

The sole question for our determination is, whether that portion of the judge’s charge which defines the degree of care and skill which the defendant was bound to exercise in the carriage of passengers, to which exception was taken by the defendant’s counsel, was erroneous. In several portions of his charge the judge charged as follows: “Now if this plaintiff, can recover at all, she can recover only by reason of the negligence upon the part of the defendant which ordinary prudence and care on its part, or the part of its employes, would have prevented; that is to say, that if this accident which occurred from the overturning of the car was produced by the negligence of this company, and prudence and care on the part of its servants would have prevented it, then the defendant is liable, and if you cannot point out such negligence then you cannot give .the plaintiff a verdict.” “If the driver of the car negligently did any thing which he ought not to have done, or if he omitted to do any thing which he ought to have done, or if he omitted to take some precautions which he ought to have taken, which act, or which omission, brought about the accident, then the plaintiff is entitled to recover; hence the question for you to determine is, did this driver in attempting to cross this railroad exercise that degree of care and prudence which the law required of him and which the safety of his passengers demanded ? If he did, then the plaintiff has not made out hér case; if he failed in that, then she has made out her case and she is entitled to a verdict. In the carrying of passengers, a common carrier is bound to exercise the highest degree of care and prudence; and you are to say whether this driver, in approaching this crossing, did exercise that degree^ of care which the law required ; that is, whether in your judgment there was any thing which he might have done upon that occasion, the doing of which would have prevented the accident. If you shall' say that there was, then there was negligence on the part of this driver, for which the company is responsible, and the plaintiff would be entitled to a verdict.” “ This plaintiff cannot recover against this defendant unless you say that this company or this driver was negligent within the rules of law laid down by the court.” “ In this case the law required this company to exercise the highest degree of care and prudence, and this driver was the company, and for the purposes of this case he was the defendant ; he was charged with the safety of the passengers ; he was approaching what the law regarded as a dangerous place, and he was bound to use the highest degree of care and prudence; the question for your determination is, did he exercise it ? If you find that he did everything that a prudent man ought to have done under the circumstances, then this defendant is not liable, and the plaintiff cannot recover in this action.” “If the driver did all that the law required him to do, then she cannot recover; if he failed, then you will give her a verdict in such amount as will fully compensate her for the injury complained of.” At the close of the charge, counsel for the plaintiff asked the judge to charge this : “ That this driver or this company is not relieved from liability unless they have satisfied the minds of the jury that this accident could not have been avoided by human foresight —: by the utmost human skill and foresight.” The judge so charged, with the modification that the burden of proof was upon the plaintiff. Defendant’s counsel excepted to the charge so made, and also excepted to that part of the charge which instructed the jury that the defendant must show that it exercised the highest degree of care and skill.

It may be that some portions of the charge carried the rule of responsibility too far and were erroneous; but the defendant is confined to the particular portions which were excepted to. If there were any other portions of the charge of which it complained, it should have called the attention of the court and the opposite party to them, so that the court might have an opportunity to correct them- This accident happened at a place where the defendant’s road crossed the tracks of a steam railroad, by the steam engine coming in contact with its car containing the plaintiff and other passengers. The portions of the charge excepted to when applied to a carrier of passengers at such a place were strictly accurate and are fully justified by ample authority. That, under such circumstances, the defendant was bound to use the highest degree of care and prudence, the utmost human skill and foresight, is the settled law. (Ingalls v. Bills, 9 Metc. 1; Hegeman v. Western R. R. Co., 13 N. Y. 9 ; Bowen v. N. Y. C. R. R. Co., 18 id. 410; Deyo v. N. Y. C. R. R. Co., 34 id. 9; Maverick v. Eighth Ave. R. R. Co., 36 id. 378; Caldwell v. N. J. Steamboat Co., 47 id. 282.)

The judgment should be affirmed.

All concur.

Judgment affirmed.


author: Ruger, Ch. J.

text:
    Hannah Strong, Respondent, v. Edward Strong, Appellant.
    Where a person has been induced to settle disputed claims against another by means of false representations on the part of the latter, he has the right to pursue one of two remedies, i. e., to restore what he has received under the settlement and claim restoration to his former position, or to keep what he has received and recover the damages sustained. He is not entitled to both remedies, and the selection of one precludes a resort to the other.
    The right, however, to rescind a contract for fraud must be exercised, immediately upon discovery thereof, and any delay in doing so, or the continued use and occupation of the property received under the contract, will be deemed an election to affirm it.
    Plaintiff was induced by false representations on the part of defendant to accept his note, payable at a future day, with other property, in settlement and release of several actions and proceedings then pending in court between them. Among other things defendant was permitted by the settlement to pass his accounts, as executor of an estate in which plaintiff had an interest, and to obtain his discharge from liability to the plaintiff, the interest claimed by her being much larger than the sum agreed to be paid in settlement. Held, that the releases and extension of time for the payment of the amount agreed upon constituted such an inj ury as entitled plaintiff, upon proof that they had heen fraudulently obtained, to maintain an action therefor.
    Some three and a half years after the settlement, during which period plaintiff remained in the occupation and enjoyment of the property conveyed, and after she had done other acts showing unmistakably an election to affirm the settlement, she moved, without offering to restore the property, to vacate the decree of the surrogate, passing defendant’s accounts, because of the fraud, and defendant, in answer thereto, set up the omission of plaintiff to restore the property received as a bar to the relief sought; the motion' was denied. It was claimed by defendant that the motion was an election to disaffirm the settlement and precluded her from maintaining the action. Held untenable, as plaintiff had lost the right of election at the time the motion was made ; also, that in the absence of an allegation, in the petition on which the motion was made, of an offer to return the property, or of some valid excuse for not doing so, it was demurrable and defendant was entitled to a dismissal thereof.

      Also held, that the decision of the surrogate did not constitute an adjudication upon the question of fraud, barring plaintiff’s claim in this action.

      Also held, that it was not essential to a recovery to show that the alleged fraudulent representations were the exclusive cause inducing plaintiff to assent to the settlement; that if she would not have made it except for" the representations, there was such a reliance thereon as entitled her to maintain the action.
    (Argued March 10, 1886
    decided March 26, 1886.)
    Appeal from judgment of the General Term of the Supreme Court, in the second judicial department, entered upon an order made September 9, 1884, which affirmed a judgment in favor of plaintiff, entered upon a verdict.
    This action was brought to recover damages for alleged fraudulent representations on the part of defendant, by which plaintiff was induced to settle certain actions and proceedings and accept, among other things, defendant’s note at twelve months in satisfaction and to release all claims.

      A. R. Dyett for appellant.
    This action not being necessary to protect or enforce any right of the plaintiff cannot be maintained lex nihil frustra agit. (Argall v. Jacobs, 87 N. Y. 110 ; Clarke v. Lewin, 82 id. 580; Nat. S. & L. Bk. v. M. N. Bk., etc., 89 id. 440, 441.) Assuming that the fraud alleged in the complaint was committed by the defendant, the plaintiff had her election of two remedies : First, to rescind the transaction and restore her to the position which she formerly occupied; or, secondly, to affirm the transaction and recover her damages for the fraud. But having once made an election of one remedy the other is gone forever. (Schiffer v. Dietz, 83 N. Y. 300, 308 ; Morris v. Rexford, 18 id. 552; Littlefield v. Brown, 1 Wend. 398; 11 id. 467; Butler v. Miller, 1 Comst. 496; Ex parte Warder, 3 Bro. 191; Ex parte Cater, id. 216.) The referee erred in holding that the decision of the surrogate of Westchester county, denying the plaintiff’s motion to set aside the decree of the same surrogate, entered upon the accounting of the defendant as executor, was not res judicata upon the question of fraud involved in this action. (Birckhead v. Brown, 5 Sandf. 134, 147, 151; People v. Fields, 1 Bans. 222, 230; Draper v. Stouvenel, 38 N. Y. 219; Fellows v. Northrup, 39 id. 117; Mason v. Lord, 40 id. 476; Sheldon v. Sheldon, 51 id. 354; .Petersine v. Thomas, 28 Ohio, 596; Bates v. Spooner, 45 Ind. 489; White v. Coatsworth, 2 Seld. 137; Peyser v. Mayor, etc., 70 N. Y. 501, 502; 43 id. 184-188 ; 37 id. 511; Brown v. Mayor, etc., 66 id. 385; Yonkers & N. Y. F. Ins. Co. v. Bishop, 1 Daly, 449, 451 ; Dwight v. St. John, 25 N. Y. 206 ; Demarest v. Darg, 32 id. 281, 283, 287; N. Y. El. R. R. Co. v. Harold, Daily Reg., Oct. 15, 1883.) Evidence improperly admitted is presumed to have done injury to the party objecting unless the other party can satisfy the court to the contrary. (69 N. Y. 260; 76 id. 279; 1 Comst. 519, 521; 3 Daly, 105-108; 1 E. D. Smith, 536, 537 ; 17 Wend. 85, 87; 17 Barb. 424, 427.) A false and fraudulent representation made by- one party to induce a contract entered into by the other is not actionable unless the party to whom it was made believed the representation to be true and acted upon the faith of it to his damage. (Scott v. Lara, Peake’s Cases, 226; Allen v. Addington, 7 Wend. 11; 11 id. 375; Meyer v. Amidon, 45 N. Y. 169 ; Oberlander v. Spiess, id. 175 ; Lefler v. Field, 2 id. 621; Wakeman v. Dally, 51 id. 27.)

      Brown da Dykman for respondent.
    As defendant sat still and heard his lawyer make the representations testified to by the plaintiff and her attorney, and her agent and the benefit thereof, enjoyed knowing all the while that he had long been utterly insolvent, the law holds him liable, and makes such false representations his own. (Bradner v. Strang, 23 Hun, 444-449 ; 89 N. Y.; Ahern v. Goodspeed, 72 id. 108 ; 26 Alb. Law Jour. 258, 259; 83 N. Y. 436.) Defendant having reaped the benefit of his agent’s statements, as principal is liable for them. (Ahern v. Goodspeed, 72 N. Y. 108 ; King v. Fitch, 2 Abb. Ct. of App. 508, 515; 1 Keyes, 442; Bennett v. Judson, 21 id. 238, 239 ; Sharp v. Mayor, etc., 46 Barb. 258, 269, 270; Carr v. Schemerhorn, 3 Lans. 189, 271, 272, 273; Lee v. Village of Sandy Hill, 40 N. Y. 447, 453 and note, 453, 454; Armour v. Ins. Co., 90 id. 450; 31 id. 611; 43 id. 288 ; Krumm v. Beach, 96 N. Y. 398.) It would not affect the reliance upon defendant’s representations, even if the person who transacted the business for plaintiff had relied upon Mr. Carl’s statement to a certain extent. (Bruce v. Burt, 67 N. Y. 237, 241.) Plaintiff is entitled to recover, as damages, principal of note, $5,000, and interest. (Krumm v. Beach, 96 N. Y. 398, 406 ; Gould v. Cayuga Nat. Bk., 99 id. 333.)
   Ruger, Ch. J.

There was evidence given on the trial, from which the referee was authorized to find that the defendant made fraudulent representations to the plaintiff as to his responsibility, which induced her to accept his note, payable at a future day, in settlement of several actions and proceedings then pending in court between them. Among other things, the defendant was permitted, by such settlement, to pass his accounts as executor of his father’s estate, and obtain his discharge from liability to the plaintiff as such executor for her share therein, amounting, as was claimed by plaintiff, to a much larger sum, than that agreed to be paid in settlement. The release of the defendant from such liability, and other liabilities upon obligations alleged to have been fraudulently incurred, and the extension of time of payment of the amount agreed to be accepted in settlement, as well as of the right to prosecute her original claim, constituted such an injury to plaintiff’s rights as entitled her, upon proof that they were fraudulently obtained, to maintain an action therefor, and recover such damages as she might show she had sustained. Upon a discovery of the fraud, the plaintiff had a right to pursue either one of two alternatives, viz., either to restore what she had received upon the settlement, and claim restoration to the position occupied before the agreement by her, or keep what she had received, and prosecute the defendant for the damages alleged to have been sustained by her thereby.

It is true that she could not prosecute both of these remedies as they are inconsistent with each other, and the election by her of either, precluded a resort to the other. It is a settled rule, however, that the right to rescind a contract for fraud must be exercised immediately upon its discovery, and that any delay in doing so, or the continued employment, use and occupation of the property received under the contract, will be deemed an election to affirm it. (Schiffer v. Dietz, 83 N. Y. 300.)

It is claimed by the appellant, that the conduct of the plaintiff in moving to vacate the decree of the surrogate passing the defendant’s accounts, upon the ground that the same was procured to be entered by the fraud, which is also alleged as the basis of this action, was such an election as precludes her from maintaining this action. We do not think that claim is well founded.

At the time this motion was made, over three and a half years had elapsed since the settlement had been made, and the plaintiff had during all of that time been in the occupation and enjoyment of the premises at Hew Rochelle, deeded to her in pursuance of the alleged fraudulent agreement, and had never offered to restore them to the defendant, either on making the motion, or previously thereto. It also appeared that she had in 1876, a year after the decree, joined in an application to the court to compel the defendant to pay to her sister the amount adjudged due to her, from her father’s estate by said decree, and that such application was successful, and the defendant ■ had paid the amount so adjudged to be due. These were unmistakable acts of election on the part of the plaintiff to affirm the agreement of settlement, and when she made her application to the surrogate, she did not then have the right of election. This constituted an absolute bar to the relief there sought, and we must assume, in the absence of any proof to the contrary, that the surrogate’s decision was based either upon loches or the absence of proof, of restoration, either of which .grounds, being in the nature of a condition, would naturally preclude any inquiry into the merits of the controversy.

The defendant’s answer to the petition to open and set aside the surrogate’s decree, while denying the allegations of. fraud therein contained, also set up the omission of the petitioner to make restoration of the property received on the settlement, as a bar to the relief sought. In the absence of an allegation in the petition of an offer to return the property received, or of some valid excuse for not doing so, it was demurrable and entitled the defendant to a dismissal thereof, for want of such allegation.

We are, therefore, of the opinion that such proceedings did not operate as an election precluding the plaintiff from prosecuting this action, and for the same reasons the decision of the surrogate thereon-did not constitute an adjudication upon the question of fraud, barring the plaintiff’s claim in this action. The allegations and proceedings show affirmatively that he had no authority to pass upon the merits of the application. The further point is made that the plaintiff could not have relied upon the alleged fraudulent representations, because she testified that she also relied upon certain representations made to her by defendant’s partner, Carl. We do not think the appellant’s claim in this respect can be maintained. This testimony does not necessarily overthrow the ‘abundant evidence in the case, that the plaintiff’s agents, to whom she intrusted the business of effecting the settlement, were influenced thereto, solely by the alleged fraudulent representations, or that she herself gave her assent to the settlement, relying upon such representations.

It is not essential to "a recovery in such an action that the , alleged representations should have been the exclusive cause inducing the plaintiff to assent to the settlement, hut if she would not have made the settlement except for such representations, there is- such a reliance thereon as entitles her to maintain the action.

We are, therefore, of the opinion that the judgment should be affirmed.

All concur.

Judgment affirmed.