author: Putnam, J.:

text:
    Albany County Savings Bank, Respondent, v. Mary E. McCarty and Others, Appellants, Impleaded with Thomas McCarty and Others.

      Mortgage — certificate of acknowledgment — presumptive evidence — signature of the mortgagor — impeachment of the certificate of acknowledgment — foreclosure —sufficiency of a refereds direction of judgment.

      A. regular certificate of acknowledgment on a mortgage is presumptive, but not conclusive, evidence of the due execution of the instrument.
    When, on the trial of an action of foreclosure, the plaintiff has put in evidence the bond and mortgage in suit, duly acknowledged, he may rest on the presumptive evidence of the due execution of the instruments arising from the apparent proper acknowledgment thereof, and the burden of answering such testimony will fall on the defendant.
    The evidence to impeach the certificate of acknowledgment of a deed or mortgage must be so full and satisfactory as to convince the mind that the certificate is false or forged ; a mere suspicion or even preponderance of evidence less than sufficient to establish a moral certainty to that effect is insufficient.
    It is not essential to the due execution of a bond and mortgage that the signature thereto should be in the handwriting of the mortgagor; if the mortgagor directs another to sign his name to the papers or assents to such signing, and afterwards acknowledges the execution thereof, it is a legal execution.
    In an action upon a bond and mortgage, purporting to have been duly executed and acknowledged by a person since deceased, the officer by whom the certificate of acknowledgment was made testified, but not positively, that the acknowledgment was made at his office, whereas it appeared that the deceased was not, at the date of the acknowledgment, in a state of health permitting her to appear at said office, and if the acknowledgment was made there it must have been by some person simulating the mortgagor.

      Held, that tlie referee hy whom the action was tried could properly disregard the testimony of the witness, as not of sufficient weight to impeach his official certificate of acknowledgment.
    The statement, at the conclusion of a referee’s report - on foreclosure, that the plaintiff “ is entitled” to judgment as specified in the report, is a sufficient direction for the entry of judgment to entitle the plaintiff to judgment accordingly.
    Appeal by the defendants, Mary E. McCarty and others, from a final judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of Albany county on the 24th day of December, 1892, in an action brought for the foreclosure of a mortgage, tried before a referee.

      JP. O. Dugcm, for the appellants.

      Lcmsimg Jlotalimg and E. Goimt/rymcm, for the respondent.
   Putnam, J.:

This action was brought upon a bond and mortgage claimed to have been executed by defendant Thomas McCarty, and by Ellen McCarty, deceased, his -wife, on April 25, 1887, upon premises of the latter, to secure the payment of $8,000 one year from date. The relief demanded in the complaint was the foreclosure of said mortgage and judgment for the deficiency, if any, against said Thomas McCarty individually and as administrator of Ellen McCarty, deceased.

The defendants, Mary E. McCarty (of full age) and John J., Thomas, Jr., Frank, Augustine and Agnes McCarty (infants), by their guardian ad litem, as heirs at law of Ellen McCarty, deceased, interposed answers denying the execution of said bond and mortgage by deceased. The issues were referred, and the referee found in favor of the plaintiff. The only question litigated before him was as to the execution of the papers in question by the deceased.

. On the trial plaintiff, having read in evidence the bond and mortgage on which the action was brought, and, which being duly acknowledged, proved themselves, rested. The acknowledgments on said papers were presumptive, but not conclusive, evidence of the due execution thereof. (Sudlow et al. v. Warshing et al., 108 N. Y. 520-522.)

On such acknowledgments, unless impeached by competent evidence, the referee could properly determine that the mortgagors duly executed- said papers. It is well settled that there is a strong presumption that a deed properly acknowledged and recorded was in fact duly executed. As said in Pierce et al. v. Feagans (39 Fed. Rep. 587-592): “ The record is in due form of law, and it is aided by the presumption that always attends the acts of public officers, that the duty devolved on the officer was properly performed in the maimer stated.”

Plaintiff having rested on the strong and satisfactory evidence of the due execution of the said bond and mortgage, arising from the proper acknowledgment thereof, it was for the defendants to answer that testimony. The principles applicable when such a state of facts appear, are considered in many reported cases, some of which are referred to by counsel for respondent. These authorities hold that “ the evidence to impeach the certificate of the acknowledgment of a deed must be so full and satisfactory as to convince the mind that the certificate is false or forged. A mere suspicion or even preponderance of evidence less than sufficient to establish a moral certainty to that effect is insufficient.” (Griffin v. Griffin, 125 Ill. 430; Young v. Duvall, 109 U. S. 573.)

Bemembering this well-settled doctrine, and after a careful examination and consideration of the evidence in the case, we are of the opinion that we cannot properly reverse the findings of the learned referee on the questions of fact submitted to him, as contrary to the evidence.

Defendants on the trial sought to impeach the certificate of acknowledgments on the bond and mortgage, by the testimony of Commissioner Krank, the officer who took such acknowledgments, to the effect that they were taken at his office in the city of Albany, and showing by other witnesses that at that time Ellen McCarty was confined to her bed by sickness, and unable to be in Albany. The testimony of the witness Krank also tends to show that he was not certain that the person who made such acknowledgments as Ellen McCarty was the deceased mortgagor, and tlie woman who in fact made the acknowledgment may have been some other person. He thought he was never at the residence of Ellen McCarty at' or about the time the acknowledgments in question were taken. Defendants also show that the signatures to said bond and mortgage were not in the handwriting of deceased, and produce some testimony tending to show that at that time deceased was unable to execute said paper at her own house.

It will be seen that the defense rests principally upon the testimony of the witness Krank. The evidence was such that the referee could properly find that at the time the papers in question were executed, deceased, although sick and confined to her bed, was yet able to execute them at her own home. There was evidence that on April 25, 1887, the day of the date of said bond and mortgage, she, with her husband, executed a chattel mortgage to one Shubal Kelly, which was acknowledged before said Krank. There was also testimony given by her physicians indicating that at the time mentioned she was in a condition to execute a bond and mortgage.

It was not essential to the due execution of the bond and mortgage that the signature thereto should be in the handwriting of deceased. If she directed another to sign her name to the papers, or assented to such signing, and afterwards acknowledged the execution thereof, this would be a legal execution. (Frost v. Deering, 21 Me. 156 ; Bartlett v. Drake, 100 Mass. 174 ; Mackay v. Bloodgood, 9 Johns. 285; Greenfield Bank v. Crafts et al., 4 Allen, 447.)

But the evidence renders it almost certain that deceased, on April 25, 1887, was unable to be at the office of Commissioner Krank in Albany. Assuming that the person who made the acknowledgment to the bond and mortgage as Ellen McCarty did so at said office as Krank testifies, it would follow that some person on that occasion simulated her.

It was for the referee to determine what credit, if any, should be given to the testimony of the witness Krank, thus produced by defendants to impeach his official certificate. The referee heard and saw him, and witnessed his manner of testifying. The witness was not certaAn that the papers in question were acknowledged at his office, and his testimony was somewhat contradictory and unsatisfactory. The referee could properly, under the circumstances, disbelieve and disregard such testimony, especially where it tends to impeach and contradict the official certificate of the witness. The referee was not compelled to hold, on the evidence of said witness, that the bond and mortgage were acknowledged at his office in Albany, it appearing that deceased was not then in a condition to appear at said office. He could properly determine that the recollection of such a witness as to a transaction occurring several years before, was not of sufficient weight to impeach his official certificate.

We do not deem it necessary to further discuss the evidence. A question of fact was submitted to the referee as to whether Ellen McCarty did, or did not, execute the bond and mortgage in question. On the one hand the official certificates of the officer attached at the time, and on the faith of which the papers were accepted and recorded, were read in evidence.. On the other side was the unsatisfactory testimony of the officer who took the acknowledgment, offered with a view of impeaching his' own official certificate. We think the conclusion of the referee was justified by the evidence.

There was no material error in the order sending the report back to the referee for correction or in the subsequent order modifying the first order. The report at the end thereof contains the following language: That the plaintiff is entitled to the usual judgment for the foreclosure of the said mortgage and a sale of said mortgaged premises with judgment for deficiency, if any there should be, against the defendant Thomas McCarty, individually, and as administrator of the goods, chattels and credits of Ellen McCarty, deceased, together with the costs of this action.”

This is a sufficient direction for judgment. In saying that the plaintiff was entitled ” to the judgment, as specified in his report, the referee sufficiently directed the entry thereof. (Gold v. Serrell, 21 N. Y. Supp. 1078; Hinds v. Kellogg, 13 id. 922.)

On this direction, contained in the referee’s report, plaintiff was entitled to judgment, foreclosure and sale. Hence the order objected to by the defendants, as to them, was unnecessary and unimportant, as on the report itself plaintiff was entitled to the judgment in fact entered. Of course, as to those defendants who did not answer it was neeesssary to apply to the court for the usual judgment of - foreclosure and sale.'

The judgment should be affirmed, with costs.

Mayham, P. J., and Parker, J., concurred.

Judgment affirmed, with costs.


source: Caselaw Access Project

license: Public Domain

text:
    Simon Schriver, Respondent, v. The Village of Johnstown, Appellant.

      Pollution of a private pond by a municipality — sewage — injunction — measure of damages — damages inca/pable of pi’eaise ascertainment.

    The maintenance, by a municipality, of a permanent system of sewers, through which the sewage is collected and emptied into a private owner’s pond, upon a natural stream, not only polluting the water but causing a large deposit of offensive matter in the pond, continued ever since the completion of the sewers, presents a case for a perpetual injunction, with at least nominal damages.
    The measure of damages in such a case is the depreciation in rental value.
    In an action brought to recover damages for a pollution of the plaintiff’s waters, where it appears that the pollution and consequent depreciation in rental value are produced in part by other causes than the act of the defendant, and the damages are incapable of precise ascertainment, but all the evidence bearing-on the question of damages which in the nature of the case is fairly possible has been given, it is no defense to the defendant, the wrongdoer, that the judgment against him must involve more or less of estimate and opinion.
    Appeal by the defendant, the Village of Johnstown, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of Fulton county on the 28th day of September, 1892, upon the report of a referee.
    The action ivas brought to recover damages alleged to have been sustained by the plaintiff by reason of the construction and maintenance of certain sewers by the defendant, the Village of Johnstown, whereby the waters of a natural non-navigable stoream in plaintiff’s land, and of a mill pond formed by a dam in the stream, upon which the plaintiff maintained a leather manufactory, were polluted and rendered unfit for use, and to perpetually restrain the defendant from emptying sewage and other offensive matter, and from draining any portion of the village of Johnstown, into the stream at any point upon or above the plaintiff’s land.
    The judgment imposed the perpetual injunction prayed for, and awarded the plaintiff $2,000 damages.
    The method pursued by the referee, in arriving at the amount of damages, is set forth as follows in his opinion:
    “We think the only measure of damages which can be used is depreciation of rental value. And as to this, it is very difficult to determine to what extent it is attributable to the defendant. The defendant can be charged only with that part of the injury occasioned by its own wrong. (Ghvpman v. Palmer, 77 N. Y. 51.)
    “And here are several sources of this depreciation. The filling up of the pond is contributed to- by much sand and other substances brought down by the current, by surface drainage, by bran and other refuse from the mills, etc. . The filthy contents of the water interfering with plaintiff’s business do not come wholly from sewers, but in part from privies, mills, surface drainage, etc., without connection with those sewers. A part of the depreciation in rental value is due to the pollution of the water, rendering it and the ice formed upon it unfit for domestic use, as we have seen, and under circumstances which eliminate it from the case on the question of damages.
    - “ Still, when it is reasonably certain that the defendant has caused injury to the plaintiff, it is the duty of the court to arrive at the amount of damages, although its judgment is an estimate and certainty is impossible. (Drueker v. Manhattan PoÁl/wa/y Go., 106 N. Y. 157.)
    “ The result of our examination of the question is that the total depreciation in rental value since the introduction of the sewers in 1882, may be fairly estimated at $600 per annum. From this should be deducted for domestic purposes, ice, etc., $300, leaving $300 per annum. One-third of this may be regarded as due to causes for which the defendant is not responsible. Upon this basis we find the damages to be at the rate of $200 per annum, which; for the years elapsed since defendant introduced its sewers, gives a total of $2,000 damages against the defendant.”

      J. Keek and Matthew Kale, for the appellant.

      Andrew J. Kellis, for the respondent.
   Putnam, J.:

The learned referee has written a very satisfactory and exhaustive opinion, on which I think the judgment should be affirmed. On competent and sufficient evidence he has found that the defendant, in June, 1882, completed a permanent system of sewers and gutters in the streets of the village of Johnstown, through which the sewage of said village was collected and emptied into plaintiff’s pond, not only polluting the water, but causing a large deposit of offensive matter therein. That ever since said period the flow of said sewage onto plaintiff’s premises has continued.

Such being the facts of the case, 1 think the plaintiff was entitled to the judgment awarded of a perpetual injunction, and to at least nominal damages. (Noonan v. City of Albany, 79 N. Y. 477; Stoddard v. Village of Saratoga Springs, 127 id. 261.)

The only damages allowed by the referee are for the diminution of the storage capacity of plaintiff’s pond, caused by the deposit therein of the contents of defendant’s sewers, and the destruction of his machinery, and the consequent injury to his business. The referee determined that such deposit depreciated the rental value of plaintiff’s premises $200 a year.

The depreciation in the rental value of plaintiff’s premises, however, was shown on the trial to be attributable to several causes. The pollution of the water, for which no damages were allowed by the referee; the natural surface drainage of the village of Johns-town ; the drainage of other mills ; the contents of private sewers, privies, etc., together with defendant’s sewage, produced such depreciation. There is no evidence showing, with any degree of certainty, the amount of the deposit in plaintiff’s pond, caused by defendant’s sewers, and the amount produced by other causes, or to Avhat extent the rental value of plaintiff’s premises is diminished by acts of defendant.

As the referee very properly suggests : “ His (plaintiff’s) damages, occasioned by the defendant, are difficult of measurement, and, indeed, the evidence does not furnish means of ascertaining them Avith precision.”

The serious question of the case, and one on which I entertain considerable doubt, is whether the evidence was sufficient to justify the fin ding of the referee as to the amount of plaintiff’s damages. It is urged that, Avithout any evidence showing the amount of deposit in the pond caused by defendant, and the quantity left there by other sewers, the conclusion of the referee as to the amount of the diminution of the rental value produced by defendant is founded on mere conjecture. It must be admitted that there is some plausibility in this position. But there are well-considered authorities which seem to sustain the view of the learned referee.

Drucker v. Manhattan Ry. Co. (106 N. Y. 156) was an action brought against the defendant for damages for interfering with plaintiff's easement in a street. The damages allowed were the diminution of rental value of plaintiff’s property. The evidence tended to show that such diminution was caused by defendant’s road, and also by a tendency of the business to move up-town.” In the opinion, the following language is used : “ It is often the case that damages cannot be estimated with precision and the basis of accurate calculation is wanting and inadequate. That is notably true in many cases of personal injuries. Such evidence as can be given should be given, and facts naturally tending to elucidate the extent of loss should not be withheld. But when all the proof which, in the nature of the case, is fairly possible has been given, the good sense of a jury must provide the answer, and it is no defense that such judgment involves more or less of estimate and opinion, having very little to guide it. That criticism has no force in the mouth of the wrongdoer when all reasonable data have been furnished for consideration.”

The same doctrine is held in Tallman v. Met. El. R. Co. (2 N. Y. Supp. 130, 131). In Van Steenburgh et al. v. Tobias (17 Wend. 562, 563), Judge Cowen holding that a joint action does not lie against the separate owner of dogs by whom the sheep of a-third person have been killed, says : “ The difficulty in accurately estimating the separate injury done by each dog, is not an argument of sufficient strength to warrant the injustice of punishing a man who is entirely innocent. The jury must in this, as in most cases of wrong, get at the real damages in the best way they can.”

In a similar action (Buddington v. Shearer, 20 Pick. 477-479), it was held: There may be some difficulty in ascertaining the quantum of damage done by the dog of each, but the difficulty cannot be great. If it could be proved what damage was done by one dog, and what by the other, there would be no difficulty; and on failure of such proof, each owner might be liable for an equal share of the damage, if it should appear that the dogs were of equal power to do mischief and there were no circumstances to render it probable that greater damage was done by one dog than by the other.”

The same doctrine is held in Auchmuty v. Ham (1 Den. 495), and in Partenheimer v. Van Order (20 Barb. 479).

It follows, that in actions like tbe one we are considering, as in those for personal injuries, where all the evidence bearing on the question of damages “ which in the nature of the case is fairly possible ” has been given, it is no defense to the wrongdoer that the judgment against him must involve more or less estimate or opinion. In this case the evidence given on the trial was voluminous, and all the facts bearing on the question of damages, asfcvr as possible, seem to have been brought out, and I think, under the authorities cited, the conclusion of the referee was warranted by the evidence, and, therefore, that the judgment should be affirmed.

Matiiam, P: J., and Herrick, J., concurred.

Judgment affirmed, with costs.


author: Herrick, J.: Putnam, J.

text:
    In the Matter of the Application for a Peremptory Mandamus to Issue to James H. Manning, Mayor of the City of Albany, Requiring him to Cause to be Published, as by Law Required, the List of Inspectors and Poll Clerks Selected and Appointed by the Board of Election Commissioners of the City of Albany.

      Special Terms at Ohmnhers — jurisdiction of, to issue a wit of peremptory mandamus— minority member of a hom'd of election commissioners.

    An order to sliow cause why a writ of peremptory mandamus should not issue was made returnable at a Special Term to be held at Chambers, and upon the return of such order objection was taken that a Special Term at Chambers had no jurisdiction to issue a writ of mandamus; the objection was overruled and tlie mandamus was granted.

      Held, that the writ of mandamus was improperly granted. (Pctnam, J., dissenting.)
    The statute relating to the appointment of inspectors of election in the city of Albany provided that one set of inspectors of election should be selected by the minority member of a board consisting of the mayor of the city, the president of its common council and one other member selected by those members of the common council of different political faith and opinions on State issues from those of the mayor; the mayor and the president of the common council were of the same political party, but upon all important questions before the commission the vote of the mayor was opposed to the votes of the two other members of the commission.

      Held, that such mayor was the minority member of the board, and as such was entitled to appoint one set of such inspectors of election.

      Appeal by James H. Manning, as mayor of tbe city of Albany, from an order made at a Special Term of tbe Supreme Court, entered in tbe office of tbe clerk of tbe county of Albany on tlio 7th day of March, 1893, directing that a peremptory mandamus issue, commanding tbe appellant to cause to be published certain lists of inspectors and poll clerks.

      John A. Delehanty, for tbe appellant.

      Edwin Gountryma/n and Andrew Hamilton, for tbe respondent.
   Herrick, J.:

In tbe city of Albany, election officers are appointed by a board of election commissioners, pursuant to section 15, chapter 171 of tbe Laws of 1892; that portion of it pertinent to this inquiry reads as follows: “ All inspectors of election, poll clerks and ballot clerks in tbe city of Albany shall hereafter be selected and appointed by a board of election commissioners, which shall be composed of three members, consisting of tbe mayor, tbe president of tbe common council and a third member to be selected by those members of the common council of different political faith and opinions on State issues from those of the said mayor, which shall also have power to fill all vacancies which may, from any cause, arise ; but if, from any cause whatever, the said board of election commissioners should fail to fill such vacancy, or if such vacancy should occur on the day of election, the chief of police of said city is hereby empowered and directed on his own motion to fill such vacancy. It shall be the ' duty of said board of election commissioners, at least thirty days before any election, for each election district in said city, to select to serve as inspectors of election three persons (two of whom on local issues, shall be of different political faith and opinions from their associates, and of the same political faith and opinions as the majority of the electors in said district, as determined by the official canvass of the votes cast by said electors for the different candidates for mayor at the previous charter election), who shall be citizens of the United States and of the State of New York, of good character and able to read and write the English language understandingly, • qualified voters in the city of Albany, residents of the election district for which they are appointed, and not Candidates for any office to be voted for by the electors of the district for which they shall be selected. The inspectors of election so selected for the city of Albany to represent the party of the same political faith as the minority member of said board, shall be selected solely by such minority .member. Immediately after and .within twenty-four hours from the time such persons are so selected, the mayor of said city shall cause the names of the persons so selected for inspectors and for poll clerks, as hereinafter provided, stating opposite to each name, the residence of such person, his occupation and the district in which he is to serve, to be jrablished three times consecutively in each of the official city newspapers, which official publication shall be deemed a good and sufficient notice.” Subsequent sections of the act provide for the appointment of poll clerks and ballot clerks in a similar manner.

In- the spring of 1892, James EL Manning was elected mayor of the city of Albany, upon the .Democratic ticket, Charles II. Arma-tage was elected president of the common council by the Democratic members thereof, and during the same year, Clifford D. Gregory was selected the third member of the board of election commissioners by the Republican members of the common council of said city. This board so constituted, with the mayor acting as chairman or president thereof, designated the election officers for the election held in the fall of 1892.

On the 3d day of March, 1893, Charles H. Armatage and Clifford D. Gregory, as commissioners of the board of elections, signed and issued a notice or call for a meeting*of such board to be held upon the 4th day of March, 1893, for the appointment of election officers to serve at the then coming spring election, which call or notice was served upon Mr. Manning.

The members of the board met pursuant to such notice, and upon motion of Mr. Gregory and by the vote of Mr. Gregory and Mr. Armatage, Mr. Armatage was elected chairman. The board then proceeded to designate election officers.

It appears that since the last mayoralty election and before election officers had last been selected by the board, the boundaries of nearly all the election districts in the city of Albany had been changed.

.From the minutes of the proceedings of said board, it appears that many motions and resolutions were offered, and carried or lost, and that upon all these motions except two, one that all votes taken upon questions be taken by ayes and noes, and another a motion by Mr. Manning that his designation of inspectors of election be spread upon the minutes, which two motions were adopted unanimously, Mr. Gregory and Mr. Armatage voted together, and Mr. Manning voted alone.

Mr. Manning offered a resolution that the persons whose names were on the list attached to such resolution be selected and appointed to seiwe as inspectors of election to represent the Democratic party. The resolution also recited that it had been already determined by this board, at its last regular meeting, that in each of said districts where two persons were named said persons so named were of the same political faith and opinions as the majority of the electors in said several districts respectively, to wit, members of the Democratic party.

This resolution, it will be observed, was substantially a determination by the board of the number of inspectors of election allotted to the different parties in the several election districts in the city, and also a designation of the persons to serve in those districts, on behalf of the Democratic party. This resolution -was beaten, Messrs. Arma-tage and Gregory voting against it, and Mr. Manning for it.

Mr. Armatage then offered a resolution designating as inspectors of election in the several election districts in the city, two in some and one in others, which he claimed to be the Democratic list; the resolution was adopted by the vote of Messrs. Armatage and Gregory, and Mr. Manning voting against it.

Mr. Manning raised a question that the allotment of the inspectors of election in the several districts was not in accordance with the law; that where two were designated they were not of the same political faith and opinions as the majority of the electors of the several districts for which they were named, as determined by the vote cast for mayor at the last preceding charter election. His objection was overruled, and upon appeal, the decision of the chair overruling, his objection was sustained by the vote of Messrs. Armatage and Gregory.

The effect of the adoption of this resolution was of course a determination of the districts in which the Democrats were to have two inspectors of election and the Republicans one, and vice versa.

Mr. Manning then, claiming to be the minority member of the board, presented a paper in wliicb he declared that he selected the persons named therein to serve ag the Democratic inspectors of election in the several election districts, which list appears to apportion the inspectors in the several election districts in the proportion determined by the last preceding resolution.

Mr. Gregory then offered a resolution that the persons whose names were subjoined to it be appointed and selected as Republican inspectors of election, which resolution was adopted by the .votes of Messrs. Armatage and Gregory, Mr. Manning declining to vote on the ground that as a minority member he had no right to vote for Republican election officers. The names on the lists presented by Messrs. Manning, and Armatage are with a very few exceptions dissimilar.

. The Manning list, as originally presented, gave the Democrats the majority in the same number of districts as were awarded to the Democrats at the last preceding selection of election officers by the board; the Armatage resolution gave them the majority in a lesser number of districts, and increased the number of Republican election officers to a corresponding extent.

It appears in the case that ever since election officers have been appointed in the city of Albany, it has been the custom of the Democratic general committee of the city of Albany to prepare and present to the appointing power a list of the names of persons to be appointed as the Democratic election officers, and that such persons have always been appointed, and it was so done by the ■present board when it designated election officers for the fall election of 1892.

That such a list was prepared and presented by said committee at this time, and that the list designated by Mr. Manning contains the names of the persons upon such list.

Messrs. Gregory and Armatage claimed that the respective lists for which they had voted, and only those, contained the names of the election officers designated by the board, and that the names so selected were the ones to be published, pursuant to the statute, and sworn in as such election officers.

It being the duty of the mayor to publish the list of names selected by the board, Mr. Manning proceeded to publish as the Republican list of inspectors of election, the names in the list contained in the resolution offered by Mr. Gregory, and voted for and declared carried by the votes of Messrs. Armatage and Gregory, and as the Democratic list the names contained in the list presented by himself, and claimed to have been designated by him as the minority member of such board, and omitted and refused to publish as Democratic election officers, the names of those contained in the resolution offered by Mr. Armatage, and declared carried by the votes of Messrs. Armatage and Gregory.

Mr. Armatage applied for a mandamus to compel Mr. Manning, as mayor of the city of Albany, to publish the list of election officers appointed by the board, contending that the names included in the two lists offered and voted for by Mr. Gregory and himself were the ones and the only ones legally selected by said board for that election.

An order to show cause why a writ of peremptory mandamus should not issue was made returnable at a Special Term to be held at Chambers, at four o’clock in the afternoon of the same day on which the order to show cause was granted. A peremptory writ of mandamus was granted at such Special Term held at Chambers, directing Mr. Manning, as mayor, to publish such list of election inspectors, poll clerks and ballot clerks as was presented by and upon motion of Mr. Charles II. Armatage; an appeal was taken from the order granting such writ to this court, and a stay of proceedings was granted pending the hearing and determination of such appeal. Upon the return of the order to show cause, objection was taken that a Special Term held at Chambers had no jurisdiction or authority to issue a writ of mandamus; this objection was overruled, and in this, we think, the learned justice erred.

The order to show cause was made returnable to a Special Term to be held at Chambers; the order that the peremptory writ issue is entitled as having been made at Chambers. A peremptory mandamus cannot be granted at Chambers. (The People ex rel. Lower v. Donovan, 135 N. Y. 82; Matter of Wadley, 29 Hun, 12.)

. "While this is sufficient perhaps to dispose of this appeal, yet, as the other questions presented are ones that are liable to arise • from time to time under the peculiar election law of the city of Albany, it is "perhaps well to consider also the merits of the case.

It will be seen that the real question involved is, who is the minority member of the board of election commissioners, and who, as such, has the right to designate the election officers to represent 'the party of the same political faith as himself ? This presents an interesting question, and one not altogether easy of solution.

The rule is well settled that statutes should receive a sensible construction, such as will carry into effect the Legislature’s intention, and avoid unjust and absurd conclusions. (Church of the Holy Trinity v. United States, 143 U. S. 457; People ex rel. Wood v. Lacombe, 99 N. Y. 43.)

The intention and spirit of the law must be sought, and must, if-possible, be given full force and effect. Prior, contemporaneous or even subsequent legislation upon the same subject, or in anywise relating thereto, may be resorted to as aids to the proper interpretation of a statute.

The substance of the law relating to the appointment of election officers in and for the city of Albany first appeared in chajher 298 of the Laws of 1883, title 21, which provided that such election officers should be selected and appointed by the board of police commissioners of said city, and further provided that The inspectors so selected for the city of Albany to represent the party of the same political faith as the members of the police ■ board in the minority, shall be selected solely by the minority members of said police board.” This provision, it will be seen, is almost identical with that contained in the act of 1892, as above cited.

At the time of the passage of the act of 1883, .and until the passage of chapter 99 of the Laws of 1892, the board of-police commissioners of the city of Albany was composed of the mayor of said city and four police commissioners elected as such; these commissioners were all elected at the same time; an elector could only vote for two of them, the intention being that each of the dominant parties should elect two members of such board. The mayor was elected to- serve for a term of two years; police commissioners were elected to serve for four years. The result of this might be, and sometimes was, that the police commissioners, who were the minority members during two years of their term of office, were a part of the majority during the other two years.

By chapter 99 of the Laws of 1892, the law providing for the election of police commissioners for the city of Albany was repealed, and it was provided that thereafter police commissioners should be appointed by the mayor in the manner designated in such statute. The act contained no restrictions upon the mayor as to the political faith of the persons appointed police commissioners.

It- was evident by this and other acts relating to the city of Albany, passed at the same session of the Legislature, that it was Intended to do away, as far as possible,' with so-called non-partisan boards of commissioners.

It is apparent that, under chapter 99, a police commission could, and probably would, be appointed, composed entirely of persons of the same political faith, and then we would have a commission of one party selecting election officers to represent all parties; to avoid so evident an abuse, chapter 99 was followed up by chapter 111 first referred to. It is then perfectly apparent that the intention of the Legislature was to have election officers in the several election districts of different political faith; to have men appointed who, politically, would have nothing in common except the desire to guard and protect the interests of the party they represented from invasion by the other; to have men selected who would not act in harmony with each other; but who would be in a condition of watchfulness and hostility to each other, so that the electors of the several parties would have guards, watchers and 'protectors, and each party being guarded and protected in its rights from invasion by the other, all would be protected and an honest election secured; and as the means of carrying this out, it was the evident intention that the representatives of one party should not select the election officers for the other party, but that such selection should be made by persons in political antagonism to each other.

Bearing in mind this intention and evident spirit of the law, let us see if it can be so interpreted as to carry into effect that spirit and intention.

The law provides for the selection of three inspectors of election, two of whom on local issues shall .be of different political faith and opinions from their associates.” It then provides that the inspectors of election of the same political faith as the minority member of said board shall be selected solely by him. It is obvious then, that when he has made his designation or selection of inspectors that their status is fixed, and it then becomes the duty of the majority members of the board to designate for the remaining inspectors of election persons of the opposite political faith to those designated by the minority member.

The wording of the last-cited provision of the act is peculiar. It is not a provision that the representatives of each party in the board shall designate the election officers for that party, neither is it a provision that the members of the board shall select the election officers who are of the same political faith as themselves. “ The inspectors of election so selected for the city of Albany to represent the party of the same political faith as the minority member of said board shall be selected solely by such minority member.” (Laws of*1892, chap. 171, § 15.) There may be other members of the board of the same faith as the minority member

It recognizes the fact also, that there may be divisions on local issues; divisions that we all know are sometimes more absorbing for the time being than those on State issues, and while in the selection of the third member of the board it requires such selection to be made by those of opposite political faith on State issues to that of the mayor, yet, when it comes to the selection of the inspectors of election, the requirement is that two of them shall be of different political faith and opinions from their associates, not on State but on local issues.

It is common knowledge that in municipal elections persons of opposite political faith on State and National issues have combined together on local issues, and bargained away the interests of their parties on State or National issues to subserve their local interests. Under this provision of the law, as we understand it, no such combination can be made. A careful reading and consideration of the provisions of the statute last cited make their purpose apparent.

As we have seen, the general spirit and intention of the law is to secure the appointment of inspectors of election antagonistic to each other, and that the representative of one party shall not select the inspectors for the other party; and so far as the division of the inspectors is concerned the test is their antagonism on local issues, and those portions of the statute last referred to are intended to insure the carrying of such intention into • effect by compelling the appointment of those of the same political faith as the minority member, giving him absolute protection against the majority members of tbe board in Ms selection of members of Ms own party faitli, and preventing any combination between two members of tlie board to select all tbe election officers; for wben such a combination is formed, tbe one who is combined against becomes tbe minority member, and thus entitled to designate a list of inspectors liimself, thereby defeating tbe object of tbe combination, all that is left for those who have combined together to do, being to appoint, as tbe remaining election officers, pejagfcs of an opposite political faith to those designated by the mindJP member, tlms forcing them to carry out the spirit and intention of the statute, which possibly they may have combined together to thwart and defeat.

Who is the minority member ?

It must be apparent, I think, by a very brief consideration of the matter, that the status of parties does not determine whether a member of this board is a majority or a minority member; the Republicans may elect the mayor and the Democrats may elect a majority of the common council, and the president of the common council would naturally be a Democrat, and the majority of the common council being of opposite political faith to that of the mayor the third member would be a Democrat.

The member selected by the common council is not necessarily the minority member; the statute does not speak of him as such ; he is designated by it as “ third member.” The members of the common council who select him may be in the majority or in the minority in the city, county, State or Nation; they may be the majority or the’ minority of the common council.

The party in the majority in the city, county, State or Nation, at the time that the members of the board are chosen, may be in the minority at the next election; nothing is to be determined by the political faith of the inspectors to be appointed; in one election district the majority may be of one party, and in the adjoining district of the opposite, and taking the city as a whole the majority cf the inspectors of election may belong to the party which is in the minority on the total vote. The third member may be in a political minority in the board so far as State issues are concerned, the issues which determined Ms selection, and yet be one of the majority of the board on local issues, which issues as we have seen determine the selection of inspectors of election.

It must be apparent, therefore, that the majority party does not determine who are the majority or minority members or member of such board. The only requirement of the statute as to the third member is, that he shall be chosen by the members of the common council of opposite political faith on State issues to that of the mayor, the intention, of course, being that the person so chosen shall also be of opposite political faith on State issues to that of the mayor. ,*

The statute does not contemplatlpSfchat he shall name the inspectors of his political faith; he may or may not be the minority member of the board: if he is, then he names or solely selects the inspectors of his political faith; if he is not, then as one of the majority of the board he joins in selecting inspectors of the opposite political faith to that of those named by the minority member.

The board of election commissioners is appointed to hold office for a term which covers a number of elections, and it is needless to observe that it is no new thing for men to change their political faith, so that what would be a political majority in the board at one period of its existence, might very well become a political minority at another period.

I hardly think that anyone would contend that where there had been such a change of faith, or where the composition of the board had been changed by the death, resignation or removal from office of any one of the original members of the board, and one of a different faith installed in his place, that the original members of the board still retained their position as majority and minority members of the board. The status then of the members of the board, does not become fixed as first organized and thereafter remain unchangeable ; to hold that, would be placing a construction upon the statute which seems to me would lead to a violation of its spirit and intention, and lead to unjust and absurd conclusions.

That the status is not so fixed at the time of their election, or the election of any one of them, I think is also indicated by the law from which this is taken, the one authorizing the appointment by the police commissioners of the city of Albany, and where as before stated the police commissioners that were elected as such, being elected for a term of four years, and the mayor being elected for two years, and the statute at that time prohibiting his re-election, it was possible for those who were the minority members during tbe first period of their term to be a part of the majority of the board during the other part of their term.

Neither, I think, can it be consistently contended that when by a mischievous or corrupt combination, or by a union of members on local issues who are of opposite political faith on State or National issues, the one who was theretofore a minority member becomes one of the majority, he can at the same time still retain and exercise the power that the statute gives to the minority member. Such a construction would leave one member of the board without any voice in the selection of election officers. • Such a construction would also lead to the very abuses and dangers to be apprehended, from permitting a board or commission, the members of which are all of the same political faith, to appoint the election officers, not only for their own, but for the opposing political party.

If by an honest change of political faith the minority of the board becomes the majority it should only seek to control, and, it seems to me, would only be permitted to control, the appointment of the inspectors for its own party, leaving the remaining member of the board to select those for his party, and not seeking or being permitted to control the appointment of officers for both parties. And I can see no reason for a different rule when the minority becomes a majority, not by an honest change of political belief, but by a mischievous or corrupt combination, or by a union upon local issues; to hold the latter, would be .to hold that within the intention and spirit of the law all the persons appointed election officers may be appointed by members of the same faith and opinions, upon the very issues the law says the inspectors shall be divided upon; this manifestly leads to an unjust conclusion, is contrary to the intention of the statute, and is, therefore, contrary to the canons of statutory construction.

Iiow, then, is the question of who is the minority member to be determined ? One way is by the actions of the different members of the board from time to time, which indicate who is, in truth, within the meaning of the statute, the minority, and who are the majority. ■ ■ . - ■

The objections that are made to this construction are that members of the board may secretly combine together, or that they may divide their votes on different questions that come up, and only vote together upon the appointment of inspectors, or that there may be a secret change of political faith, or that the majority members may honestly disagree upon the names of the persons to be appointed by them, and then that no appointment can be made unless the third member votes with one or the other of them, or that there may be a difference of opinion as to whether some of the persons named are fit persons to serve as election officers.

These objections do not in anywise affect the principle, but simply present difficulties in applying it, difficulties in discovering the fact whether in truth the minority has become a part of the majority of the board, whether the differences are over particular persons to be appointed, or whether there has been a change in the political complexion of the board, by honest change of political faith, by mischievous combination, or by a union upon local issues of those opposed to each other on other political issues. The facts here do not present any of these apprehended difficulties. It will be time enough to meet them when they arise. In this case the facts are undisputed; two of the members of the board acted together against the third, and the two so acting together claim to have appointed all the election officers. Do these two officers acting together constitute both the majority and the minority of the board ?

The language of the statute is plain and unambiguous. The words “ majority ” and “ minority ” are words in common use, and have ordinarily a well-understood meaning, and there is no occasion to give a definition of those words here. The words of a statute, if of common use, are to be taken in their natural, plain, obvious and ordinary signification.” (People ex rel. Bockes v. Wemple, 115 N. Y. 302-307.)

If we give the words used the same meaning that we would if they were used in any other statute, we will have no difficulty in determining who are majority members, and who is in the minority; it will be by seeing who are acting in concert, and who stands alone; it is only in attempting to solve that meaning by political considerations, and by the political beliefs of the members of the board, that causes any difficulty to arise in determining the meaning of the words used.

The members of the board may so conduct themselves as to make it difficult to discover who are acting together, and who is acting alone, but when that is discovered the way is clear.

The language used must be given its natural and obvious meaning. (Fifth Avenue Bank v. Colgate, 120 N. Y. 381-394.)

Let us endeavor then to determine the' question the same as we would if it was a statute relating to a private, instead of a political or municipal corporation, by seeing who are acting in concert with each other, and who stands aloné in the board. If there is a minority, then there must be a majority, and the ascertainment of the one determines the others.

It is apparent from the proceedings in this case that, whether from a change in political belief, or from a perverse or mischievous combination, or from a union on local issues, the majority of this board is differently composed than it was when last it met to perform its official duties; then Mr. Manning and Mr. Armatage were acting together.

Now, Messrs. Armatage and Gregory are acting together; they unite in the issuing of the notice or call for a meeting of the board; Mr. Manning formerly presided over -its meetings; they unite in electing Mr. Armatage to preside in his place; they unite in awarding to the Democrats the majority in a lesser number of the election districts of the city than had been awarded to them at the last selection of election officers, although no election for a mayor for the city of Albany had intervened.

There is no disagreement over particular names of persons, nor any question raised as to the fitness of any person named to serve as an election officer. The disagreement and division is as -to the entire lists of names presented.

Ever since this -method of selecting election officers has been in vogue, it appears to have been the custom to appoint as Democratic election officers those persons whose names were presented by the Democratic general committee.

-Messrs. Armatage and Gregory unite .in rejecting that list, and appointing other persons in their place ; they finally unite in naming not only the Democratic inspectors but the Republican election officers; they unite in depriving Mr. Manning of any voice in the selection of these officers, and it seems to me that in short they acted in concert and combination all through the proceedings, and I can see no other reasonable construction of their acts, but to hold that they are the majority of the board; if they are the majority of the board, it necessarily follows that the remaining member is the minority member of the board.

This construction, I tliinlc, fully carries out the spirit and intention of the law, and it.necessarily results in having election inspectors appointed by those who are in hostility to each other, and who consequently will appoint inspectors of election who will be antagonistic to one another, which is what .the law intends and contemplates, and it gives to the words used in the statute their natural, plain, obvious and ordinary significance. (People ex rel. Bockes v. Wemple, supra.)

The opposite construction will allow members of the same political faith, or those who have entered into a combination with each other on local or other issues, to appoint the inspectors for both political parties, inspectors who will act in harmony with each other, and with a common purpose and understanding, and thus defeat the spirit of the law.

That this latter construction is a dangerous one, and one by means of which the intent and purpose of the law can be defeated, has an illustration in this case; not only was the list of officers presented by one of the party organizations ignored; which, although contrary to precedent, the board legally had a right to do, but it also appears that in some election districts of the city the election officers named as Democrats in the list presented by Mr. Armatage, were in truth and in fact Republicans, so that in such election districts all the election officers were of one political faith ; to what extent this was carried does not appear from the papers in this case, which are somewhat scanty, owing perhaps to the shortness of the time elapsing between the order to show cause and the time of its return, but whether few or many, they afford a demonstration of the evils of the construction contended for by the relator, and the propriety and necessity of the construction we have placed upon this statute, to carry into effect its spirit and intent.

It would follow from this that the list of inspectors designated by Mr. Manning was legally designated by him as the minority member of the board.

But it is said that the election officers shall be appointed by the board, and that tbe Manning list was never appointed by tbe board, bnt was simply designated by Mr. Manning. It is true that tbe. board is to make- tbe appointment, but tbe statute says that tbe inspectors of election selected to represent tbe party of tbe same political faitli as the minority member, shall be selected solely by him; and it follows, as a matter of course, that it is the duty of the-board to appoint as inspectors of election tbe persons so selected by tbe minority member, and that duty can be enforced by mandamus, and because they failed to perform that duty does not affect the-legality of tbe action of tbe minority member.

The persons designated by Mr. Manning to serve as inspectors of election having been legally selected by him as tbe minority member of tbe board, and it being tbe duty of tbe board to appoint them as inspectors of election, it follows that tbe relator was not entitled to tbe mandamus prayed for by him, and that tbe order granting it should be reversed.

Let tbe order of tbe Special Term be reversed, with ten dollars costs and printing and other disbursements.

Mayham, P. J., concurred in result.

Putnam, J.

(dissenting):

After a careful consideration of this case, I have reached tbe conclusion that the order directing a peremptory mandamus to issue was properly granted by the court below, for tbe reasons stated by-Justice FuRsmaN in bis opinion. His elaborate review of tbe questions involved renders it unnecessary to write any other opinion in tbe case.

Tbe order should be affirmed, with costs and disbursements.

Order reversed, with ten dollars costs and printing disbursements*


author: Mayham, P. J.:

text:
    David Bloom, Respondent, v. Aaron D. Huyck, Appellant.

      ■Smnma/ry proceedings — what issues can he raised by the answer — power of a Justices Court to strike out a pleading.

    In summary proceedings to recover possession of real property, the only questions that can he raised hy the answer are those which are directly put in issue hy a denial of the allegations of the petition; no other issue can he tried hy the judge or justice.
    A court of limited or qualified statutory jurisdiction has no inherent power to strike out the pleading oí a party upon his failure to file a hill of particulars, as ordered.
    Appeal by the defendant, Aaron D. Hnych, from a judgment of the County Court of Greene county in favor of the plaintiff, entered in the clerk’s office of the county of Greene on the 8th day •of February, 1893, affirming a judgment of a justice of the peace ■awarding to the plaintiff the possession of certain real estate.

      A. C. Griswold, for the appellant.

      E. Palmer, for the respondent.
   Mayham, P. J.:

On the 13th of April, 1892, the respondent filed his petition, duly verified, with Henry D. Shores, justice of the peace, alleging, •among other things, that he, the petitioner, as landlord, rented certain premises to Aaron D. Huyck, the appellant, who took possession •of the premises under a stipulated rent per month, about the 10th of April, 1891, and that the said Aaron D. Huyck was, at the date of said petition, indebted to the petitioner in the sum of nine dollars for rent; that he duly caused to be served on the defendant Huyck a notice in writing on the 6th day of April, 1892, requiring in the alternative the payment of the rent or the possession of the premises ; that the rent or any part of it had not been paid, and that the defendant Huyck was holding over and continuing in possession after a default in the payment of rent, without the consent of the petitioner. On presentation and proof of service, and demand for the rent alleged to he due, the justice issued his precept, requiring •defendant Huyck forthwith to remove from the premises, or show cause before the justice on tbe 16th day of April, 1892, why the possession of the premises should not be delivered to the petitioner.

At the time fixed in the notice or order to show cause the defendant Huyck appeared before the justice and filed his answer, duly verified, which answer is in the following form :

“Aaron D. Huyck, for an answer to the petition in the above-entitled proceedings, dated the 13th day of April, 1892, denies that he is. indebted to the said David Bloonr in the sum of $9.00 for the month of April, 1892, or any sum for rent, during the year ending May 1st, 1892.
“The said Aaron D. Huyck.had fully paid the rent of said premises for the term of the lease, and asks the judgment of this court that the proceedings be dismissed, with costs against the petitioner.”

To this answer the petitioner interposed a demurrer, which demurrer was overruled. The petitioner thereupon demanded, before a venire was issued, a bill of items or particulars of the amounts paid by defendant, as set forth in the answer; and the justice thereupon ordered the defendant to furnish such bill of particulars. To this rule and order this defendant excepted, and refused to furnish the bill of particulars asked for by the plaintiff.

The defendant thereupon asked for a jury, and tendered to the justice the amount fixed by the justice as the cost of a jury.

The court refused to draw a jury until a bill of particulars as ordered was furnished. No bill of particulars being furnished by .the defendant, the plaintiff immediately moved for a warrant to dispossess the defendant Huyck from the premises described in the petition. The defendant objected to any further proceedings until a jury was drawn and the matter tried.

The objection of the defendant was overruled, and the plaintiff’s motion was granted, and a judgment entered against the defendant . directing a warrant to be issued against him for the delivery to the plaintiff of the possession of the premises described in the petition, with two dollars and eighty-two cents costs against the defendant.

From this judgment the defendant appealed to the County Court, where the judgment of the justice was affirmed, with costs, from which judgment of affirmance, the appellant Huyck appeals to this court'.

Tbe question involved in tbis case is whether the justice could legally ignore the issue made by the defendant by his denial of the allegations of the petition, and could proceed summarily after a jury was demanded by the defendant, and the fees and expense tendered, and enter a judgment of eviction and issue his warrant against the defendant, under his objection.

Section 2244 of the Code of Civil Procedure provides as follows:

*l At the time when a precept is returnable, without waiting, as prescribed in an action before a justice of the peace, or in a District Court in the city of New York, the person to whom it is directed, or his landlord, or any person in possession, or claiming possession -of the premises, or a part thereof, may file with the judge or justice who issued the precept, or with the clerk of the court, a written answer, verified in like manner as a verified answer in an action in the Supreme Court, denying generally the allegations, or specifically any material allegations of the petition.”

This is the only answer or pleading the statute authorizes the defendant to interpose in summary proceedings to recover possession of land. That portion of the answer, therefore, which sets up payment, was unnecessary and surplusage, and doubtless would, on demurrer to that part of the answer, have been adjudged bad.

The only questions which could possibly be raised by the answer are those which directly put in issue, by denial, the allegations of the petitioner. These summary proceedings before a judge or justice of the peace, for the recovery of the possession of lands, are unlike proceedings in ordinary actions, triable in Justices’ Courts. An issue by the service of an answer containing a denial of the allegations in the petition, presents the only question that can be tried before the judge or justice. The trial of that issue differs in some essential particulars from an issue ordinarily tried in Justices’ Courts.

Section 2247 of the Code of Civil Procedure authorizes the justice, where no jury is called, to hear and determine the issue thus presented; but the defendant, by that section, is authorized, on tendering or paying the proper amount of fees and costs of obtaining a jury, to demand a trial by jury.

In such case, the justice is required to issue his precept, directing that twelve persons, nominated by him and qualified to serve as jurors in courts of record, shall be summoned for the purpose of trying tbe matter in difference. This provision of law differs also from the ordinary method of securing a jury to try actions in Justices’ Courts.

The whole proceedings are purely statutory, and must, we think, be conducted strictly within the statutory provisions in order to be upheld. No power is conferred upon the justice to disregard a verified answer denying the allegations of the petitioner, and no authority is conferred upon him either to strike out that answer or to proceed and hear and determine the questions in issue by the answer, without a jury, where a jury has been demanded and the fee paid. The only answer that the court could recognize in this proceeding was a denial. (Barnum et al. v. Fitzpatrick, 42 N. Y. St. Repr. 184; Code Civ. Proc. § 2244.)

That denial ivas interposed in' this case, and was not waived or withdrawn, and upon the interposition of that denial, the defendant demanded a jury. No discretion is -vested in the magistrate to disregard or strike out that answer. The answer, therefore, stood, presenting an issue in this case, and w'as not waived, withdrawn or stricken out at the time the judgment or warrant of eviction was issued.

, It is insisted by the respondent, tliat although section 531 of the Code, which provides for furnishing a bill of particulars, in terms furnishes no other penalty for refusing to serve a bill of particulars where required, than that of depriving the party so refusing from giving evidence as to the subject upon which such bill of particulars is demanded, yet the court has inherent power to strike out the ■entire pleading as a punishment for such refusal.

And we are referred to the case of Gross v. Clark (87 N. Y. 272), in support of that contention. That was an ordinary action in the Supreme Court, and an order was made by the court requiring the plaintiff to serve a bill of particulars before answer. That order was disregarded by the plaintiff, and on a motion made by the defendant to compel obedience to that order, the court, as a penalty for that disobedience, struck out the plaintiff’s complaint, invoking the common-law powers which are vested in a court of general jurisdiction. No such extraordinary power is lodged in a court -of limited, qualified or statutory jurisdiction.

If a bill of particulars could properly be demanded in a case like tbe one at bar, and was refused, tlie only penalty that a magistrate of limited jurisdiction could inflict for such refusal would be the penalty expressly provided by statute, to wit, that of depriving-the defendant from giving evidence of the facts as to which such Ml of particulars was refused; but if it could be held that Gross v. Clark (supra) is an authority in this case, still the power of striking out the pleading was not to be exercised in this case, and the pleading remained upon the record, presenting a full and complete issue by denial of all the allegations of the petition.

There was, therefore, an issue upon the record which could not be properly disposed of except by trial, and that trial before a jury, such as is provided for in section 2244 of the Code.

If it be said that that trial would be unavailing to the defendant for the reason that he would be deprived of giving affirmative evidence of facts not specified in a bill of particulars, still, we think, it would require the plaintiff to prove his case before the jury and afford the defendant all the advantage of a trial in the examination of the plaintiff’s witnesses, and in having a jury pass upon the truth of the allegations of the plaintiff’s petition. Of such a right he could not, we think, be summarily deprived by the justice.

This conclusion is not in conflict with the case of Klock v. Brennan, (35 N. Y. St. Repr. 745). That was an action in the Supreme Court in which a bill of particulars might properly be demanded under section 531 of Code of Civil Procedure, and the principal question disposed of in that case was, whether the party demanding a bill of particulars had been guilty of such laehes as would render an order directing a bill of particulars improper, and it was held that a bill of particulars under the circumstances of that case was properly awarded and sustained within the discretion of the court, nor is it in conflict with the case of The Durant Land Improvement Co. v. The East River Electric Co. (17 N. Y. Civ. Proc. Rep. 224). None of the questions which we have discussed in this case arose in either of those cases.

The case of The People ex rel. White v. Loomis (27 Hun, 328), cited by the learned counsel for the respondent, holds that the summary proceedings instituted before a justice are governed, except as otherwise prescribed by statute, by the ordinary rules governing trials in Justices’ Courts.

As we have seen, the statute prescribes rules in summary proceedings inconsistent with the course pursued by the trial justice in this case, in that it directs the summoning of and trial by a jury, where the allegations of the petition are denied in the answer and a jury is demanded.

Goff v. Vedder (12 N. Y. Civ. Proc. Rep. 358), is not in conflict with this doctrine, but seems to be in harmony with this conclusion..

IVe are, therefore, of the opinion that the justice erred in disregarding the defendant’s answer denying his application for a trial by jury, and that the order or judgment rendered by him was for that reason erroneous, and that the judgment of the County Court affirming the judgment of the justice must for that reason be reversed.

The judgment must be reversed, with costs.

PutNam and HebRick, JJ., concurred.

Judgment of the County Court and that of the justice reversed, with costs.


text:
    Dennison I. Dodge, Respondent, v. Aaron Eckert, Appellant.

      Pleading — allegations of tort in a complaint on contract — recoveip on proof of the contract.

    Where a complaint contains an allegation oí a cause of action on contract not sounding in tort, although it may also charge, but not as the gravamen of the action, tortious acts on the part of the defendant, the plaintiff will he allowed to recover upon the allegations resting on contract, if sustained by the proof, and the allegations of wrong may be treated as surplusage, and need not be proved.
    A complaint alleged that the plaintiff sold and delivered to the defendant goods of the value of seventy dollars, for which the defendant had never paid, and that the defendant obtained credit for said goods by false and fraudulent representation as to his means and ability to pay therefor, which representation was made with intent to defraud the plaintiff, and demanded judgment for seventy dollars and costs.

      Held, that the complaint did not sound wholly in tort, and that, therefore, the plaintiff might recover thereunder upon the contract of purchase alleged therein, upon proof of the sale and value of the goods, without proving the allegation of false representations.

      Appeal by tbe defendant, Aaron Eckert, from a judgment of tbe County Court of Sullivan county, entered in tbe office of tbe clerk of that county on the 20th day of June, 1891, affirming a judgment of a Justice’s Court in favor of tbe plaintiff.

      Henry J. Williams, for tbe appellant.

      J. M. Mcmjbee, for tbe respondent.
   Mayham, P. J.:

This action was prosecuted in a Justice’s Court upon a complaint which alleged: “ That within two years last past, before tbe commencement of this action, be (plaintiff) sold and delivered to defendant goods, wares and merchandise of tbe value of $70, for which defendant has never paid; that tbe defendant obtained credit for said goods by false and fraudulent representation as to his means and ability to pay, which representation was made with intent to defraud the plaintiff. Wherefore plaintiff claims judgment in this action against defendant for $70 and costs.”

The answer is, first, a denial, and, second, a set-off and counterclaim.

Upon the trial the plaintiff proved the sale of the goods to the value of sixty-eight dollars and ten cents, and at the time of the purchase of the goods by the defendant, he represented that one Williams was owing him for work, and that he expected his pay from Williams on a given day, and he would then pay plaintiff for the goods. The plaintiff failed to prove that the representation that Williams owed defendant was untrue, and it appeared on the cross-examination of plaintiff’s witnesses that Williams did in fact owe defendant.

The defendant failed to prove any offset or counterclaim.

At the conclusion of the trial the defendant moved to nonsuit the plaintiff on the ground that the plaintiff’s complaint sounded in tort; that there was no evidence of fraud on the part of the defendant, and no proof that the statements and representations made by the defendant at the time of the purchase of the goods, were not true

The justice refused to nonsuit, and rendered judgment for the value of the goods, and from that judgment the appeal was taken.

The only question in this case important to consider is, whether the complaint sounded solely in tort, and the action was prosecuted under tbe complaint for tbe tort, and not upon tbe contract or purchase ?

If this action bad been prosecuted solely for the tort, without any allegation of a contract from which an obligation on the part of the defendant to pay could be legally inferred, then it would be necessary for the plaintiff, before he could recover, to prove the wrong, as the wrong in that event would be the gravamen of the action; but where the complaint contains an allegation of a cause of action on contract, not sounding in tort, although it may also charge tor-tious acts on the part of the defendant, the plaintiff will be allowed to recover, upon the allegation of his complaint resting on contract, and the allegations of wrong in the complaint may be treated as surplusage. Under the liberal practice of pleading adopted by the Code, especially in Courts of Justices of the Peace, pleadings are construed liberally, -with a view to the promotion of substantial justice between the parties. In pleading under the Code, it is sufficient to state facts from which the law infers a liability or implies a promise. (Zabriskie v. Smith, 13 N. Y. 330.)

Although facts are stated in a pleading which are unnecessary to be proved to constitute a cause of action or defense, they may be disregarded upon the trial. (Bedell v. Carll, 33 N. Y. 581.)

A complaint containing a statement of facts constituting a cause of action on contract, sustained by proof of such facts upon the trial, authorizes a recovery, although the complaint is in form for a conversion. (Conaughty v. Nichols, 42 N. Y. 83.)

We are, therefore, of the opinion that the justice was right in refusing to nonsuit the plaintiff in this case; that the, complaint stated a cause of action on contract, and that that portion of the complaint which charged fraud might properly be rejected by the court as surplusage, and that the judgment rendered in such a ease is a judgment on contract, upon which the party could not be arrested on final process.

The judgment of the County Court and that of the Justice’s Court must be affirmed, with costs.

PutNAm and HeReiok, JJ., concurred.

Judgment of Justice’s and County Court affirmed, with costs.


author: Mayhan, P. J.:

text:
    John C. Durr, Appellant, v. The Village of Green Island, Respondent.

      Municipal corporation — neglect to remove snow and ice from its streets — injury resulting from, one of two causes, for only one of which defendant is liable.

    Snow and ice having accumulated to the depth of six inches on the sidewalk of a village street, and not having been removed by the village authorities, and having, by reason of pedestrians passing over it when the temperature was high, become soft and marked by foot prints, a person passing over such sidewalk stumbled or slipped upon the icy portion thereof, fell and was seriously injured. Two or three days prior to the time of such injury, there was a precipitation of snow and sleet covering the entire surface of the sidewalk, rendering the same slippery, from which time until the time of the injury, the temperature was constantly below the freezing point and ranged from nineteen to eight degrees above zero.
    Upon the trial of an action brought by the person so injured against the village in which such street was, to recover the damages resulting from the injury, the plaintiff was nonsuited.

      Held, that such judgment was proper;
    That, although the corporation defendant was negligent in allowing the snow and ice to accumulate upon the sidewalk prior to the storm of sleet and snow, it was not negligent for failing to remove the sleet and snow that fell two or three days prior to the injury to the plaintiff, and that the evidence failed to show whether or not the injury resulted from the only cause for which the defendant was liable.
    Appeal by the plaintiff, John 0. Durr, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Albany on the 21st day of December, 1892, dismissing the complaint of the plaintiff upon the merits, and from an order denying the plaintiff’s motion to set aside the direction dismissing the complaint, and for a new trial upon the judge’s minutes, and from an order made by the Circuit Court dismissing the plaintiff’s complaint upon its merits.

      Charles F. Doyle, for the appellant.

      George B. Wellington, for the respondent.
   Mayhan, P. J.:

The plaintiff brought this action for an alleged injury resulting to him from a fall on the sidewalk in the village of defendant, wbicli fall plaintiff alleged lie suffered by reason of the defendant’s negligence in suffering ice to.accumulate thereon.

The evidence show's that during a portion of the month of November and dowm to the last of that month, snow and ice had accumulated on the sidewalk on Pine street in that village, and had not been removed by the village authorities, and that the same was about six inches in depth at that time, and that, by reason of pedestrians passing over it, it had, at times when the temperature was high, become soft and marked by foot prints so as to present a rough and uneven surface, and in that condition had frozen.

Upon the first or second of December following there was a precipitation of snow and sleet covering the entire surface of the sidewalk, and rendering the sidewalks in the village of Green Island generally slippery. From that time until the fourth of December the temperature had been constantly below freezing point, ranging from nineteen degrees down to eight degrees above zero.

On the night of the fourth of December the plaintiff, while passing along and over the sidewalk on Pine street, stumbled or slipped on the icy portion of the sidewalk and fell, and was seriously injured. For this injury he brings this action.

On the trial the plaintiff was nonsuited on the ground that it was apparent from the evidence that the injury resulted from one of two causes, for one of which the defendant would be liable, and for the other the defendant would be exempt from liability.

We think the learned judge was right in his determination, and that his decision must be upheld upon the evidence; it is, we should think, clear that the village of Green Island was negligent in allowing snow and ice to accumulate upon the sidewalk, as the evidence showed it to have done, without any effort on the part of the defendant to remove it during the month of November.

The testimony discloses that the temperature was sufficiently mild to soften the ice and snow on the sidewalk during that month, and thus rendering it reasonably possible for the village to have removed the accumulation, and if this action had been prosecuted for injuries occurring before the precipitation of snow and sleet on the second of December, it is quite probable that legal negligence might have been established against the defendant which would authorize a recovery, but the precipitation of sleet an d snow on the first and second of December, followed by a severe freezing condition of temperature, and producing a general icy and slippery condition of the sidewalks of the entire village, makes it uncertain whether the injury resulted from this latter condition, or from the condition existing on the last of November.

If the icy condition produced by the sleet and snow on the iirst and second of December produced the injury, then clearly, within the decision of Taylor v. City of Yonkers (105 N. Y. 208, 209), there would have existed two causes, for one of which the defendant would be liable, and for the other of which it would not be liable, and the jury could not properly be permitted to speculate as to which of the two causes produced the injury.

In such a case “the plaintiff must fail if his evidence does not show that the damage was produced by the former cause.” (Searles v. Manhattan, Ry. Co., 101 N. Y. 661.)

This the plaintiff did not show by his evidence.

The judge was, therefore, right in refusing to allow the jury to .speculate as to which of the two alleged causes produced the injury. (Taylor v. The City of Yonkers, supra ; Kaveny v. The City of Troy, 108 N. Y. 576, 577; Tobey v. The City of Hudson, 17 N. Y. St. Repr. 454.)

We think within these authorities the plaintiff failed to establish negligence on the part of the defendant for which it can be held liable, and that the judgment should be affirmed.

PutNAm and Hekkick, JJ., concurred.

Judgment affirmed, with costs.