author: Mayham, J.

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. AUGUSTUS BOCKES, Appellant, v. EDWARD WEMPLE, Comptroller of the State of New York, Respondent.

      Judge of the Supreme Court — retired under section 13 of article 6 of the Constitution of New York — amount of his compensation.

    The object of the provision of section 9 of chapter 408 of the Laws of 1870, in giving & peí' diem allowance of five dollars to judges of the Supreme Court, while officially engaged away from their homes, was to pay or provide for their expenses, and was in addition to their salary or compensation for services as judges; and the provisions upon this subject of the subsequent act (chap. 541 of 1872), giving a gross sum of $1,200, to be paid to the judges annually, in lieu of, and in full of all expenses allowed by law, did not make this sum of $1,200 a part of the compensation of the judges, within the meaning of that word as used in section 13 of article 6 of the Constitution of the State of New York, in such wise that such sum of $1,200 given to a judge of the Supreme Court retired under section 13 of article 6 of the Constitution, mjist “be continued during the remainder of the term for which he was elected.”
    The provision of chapter 270 of the Laws of 1888, “for compensation of justices of the Supreme Court, whose terms of office are abridged under the provisions of section 13 of article 6 of the Constitution, and who shall have served as such justices for ten years, twelve thousand dollars,” does not authorize the payment of the sum of $1,200 in addition to the compensation of $6,000 to such justices.
    Appeal by the relator from an order of the Supreme Court, made at the Albany Special Term and entered in the clerk’s office in the county of Albany on the 18th day of March, 1889, which denied a motion, made by the relator for an order for a peremptory writ of mcmdmius to be issued to the comptroller of the State of New York, directing him to draw his warrant -upon the treasurer of the State for the sum of $300, which became due to the above-named relator, Augustus Bockes, on tbe 1st day of April, 1888; and for the further sum of $300, which became due to said Bockes on the 1st day of July, 1888; and for the further sum of $300, which became due to said Bockes on the 1st day of October, 1888, under the Constitution and laws of the State of New York, as compensation in lieu of expenses under chapter 541 of the Laws of 1872.
   The following opinion was written at Special Term:

Mayham, J.

The relator who, for more than ten years prior to January 1, 1888, had served as justice of the Supreme Court in the fourth judicial district, having been last elected to said office at a general election in 1875, and entered upon the term of fourteen years from that date, was by reason of his age abridged in his term of service on the first day of January 1888, under the provisions of section 13 of article 6 of the State Constitution, which provides as follows : “ The official terms of the said justices and judges, who shall be elected after the adoption of this article, shall be fourteen (14) years from and including the first day of January next after their election. But no person shall hold the office of justice or judge of any court longer than until and including the last day of December next after he shall be (70) seventy years of age. The compensation of every judge of the Court of Appeals and of every justice of the Supreme Court, whose term of office shall be abridged, pursuant to this provision, and who shall have served as such judge or justice ten (10) years or more, shall be continued during the remainder of the term for which he was elected.” Since January 1,1888, the relator has been paid compensation quarterly at the rate of $6,000 per annum, 1,500 per quarter, whereas prior to that time he has been paid at the rate of $7,200 per annum, or $1,800 per quarter.

Before commencing these proceedings the relator duly demanded of the defendant, as comptroller, the auditing and allowing to him, and a warrant for the payment to him, of the additional $300 quarterly, for the quarters ending April, July and September, as to which he had been paid $1,500 instead of $1,800, as claimed by him. With this demand the comptroller refused to comply, on the ground that the relator was not lawfully entitled to receive the same. The relator now. asks 'for a peremptory mandamus to compel the comptroller to certify and pay such claim. Section 14 of article 6 of the Constitution provides as follows: “ The judges and justices hereinbefore mentioned shall receive for their services a compensation to be established by law, which shall not be diminished during their official terms.”

Under these constitutional provisions the legislature has, by various enactments, established by law the rate of compensation which judges are entitled to receive, and it is by the interpretation of these statutes that the right of the parties to this controversy must be determined. Section 9, chapter 408 of the Laws of 1870, provides that “the justices of the Supreme Court shall receive an annual compensation of six thousand dollars each, payable quarterly, in lieu of all other compensation, except that they shall receive, in addition to such stated salaries, a per diem allowance of five dollars per day for their reasonable expenses, when absent from their homes and engaged in holding any General or Special Term, Circuit Court or Court' of Oyer and Terminer, or in attending any convention, as hereinafter provided, to revise the rules of said court.”

In the general appropriation bill of 1872 (chap. 541, Laws of 1872) the legislature, after making the appropriation to meet the requirements of chapter 408, Laws of 1870, for salary and expenses of judges, adds this general provision: “The said justices of the Supreme Court, except in the first judicial district, shall receive the sum of twelve hundred dollars, annually, from the first day of January, eighteen hundred and seventy-two, in lieu of and in full of all expenses now allowed by law. This subdivision shall not increase the pay of any judge except the justices of the Supreme Court.” In chapter 643, Laws of 1873, and also chapter 373, Laws of 1875, which are the general appropriation bills of these years, the legislature, in speaking of funds raised for paying the judges of the Court of Appeals and justices of the Supreme Court, make use of this language, “ for salaries and expenses.” In the supply bill for 1888 (chap. 270) the provision is, “for compensation of justices of the Supreme Court, whose terms of office are abridged under the provisions of section thirteen, article six of the Constitution, and who shall have served as such justice for ten (10) years, twelve thousand dollars.”

We have above quoted all the statutes and constitutional provisions bearing upon the subject, and from them we must, by the application of the ordinary rules of construction, gather .the intention of the law-makers. Much depends upon the meaning that is to be given in these various acts to the word “compensation,” for if this $1,200 per annum, which the relator had always received until the abridgment of his services, was a part of his compensation within the meaning of the word as used in the Constitution (§13, art. 6), then it must “be continued during the remainder of the term for which he was elected.”

In determining this question the intent of the legislature in enacting the various provisions of the statute upon- the subject should first be ascertained and effect be given to the same in harmony with that intent, as the duty of fixing the compensation of the judges was by the Constitution confided to the legislature'. The well-settled rules of construing statutes requires them to be read and interpreted according to the natural and most obvious import of the language, without resorting to subtle and forced construction for the purpose of either limiting or extending their operation. (Waller v. Harris, 20 Wend., 561.) The rule of construing statutes was very fully, and I think correctly, stated in People ex rel. Ward v. Asten (49 How. Pr., 417), which was approved and opinion adopted by the Court of Appeals in 62 New York, 623, and while the methods of construction referred to in that decision may not all be applicable to the ease, I think, so far as applicable, may, with propriety, be used to aid in ascertaining the legislative intent in enacting the statutes relied upon in this controversy.

The learned judge in that case enumerates the following maxims, which seem elementary in the construction of statutes:

First. That statutes are to be interpreted according to the intent, and not necessarily according to the letters.
Second. That when the words are obscure, so that the intent does not clearly appear, it may be inferred from the cause or necessity of the statute.
Third. That it is the duty of the courts to construe a statute so as to meet the mischief and advance the remedy.
Fourth. That when the provision of a statute is general, everything which is necessary to make the provision effectual is supplied by the common law.
“Fifth. That all statutes linpa/ri materia ’ are to be read and construed together as if they formed parts of the same statute and were enacted at the same time.
Sixth. That when the intent or the mischief intended to be remedied is plain, but the remedy from the words used is somewhat obscure, that construction is to be given, if it be possible, which will give full effect to the intent, and not that which will render it void and inoperative.”

Within these rules of interpretation, it is proper to inquire what the intent of the legislature was in providing for a per diem allowance of five dollars per day, as that provision is contained in section 9 of chapter 108 of Laws of 1810. The first part of that section provides that the justices of the Supreme. Court shall receive an annual compensation of $6,000, payable quarterly, in lieu of all other compensation. Then in the same sentence is the following: “ Except that they shall receive, in addition to such stated salaries, a per diem allowance of five dollars per day for their reasonable expenses when absent from their homes and engaged in holding any General or Special Term, Circuit Court or Court of Oyer and Terminer, or in attending any convention as hereinafter provided, to revise the rules of said court.”

It is contended by the learned counsel for the relator that the word “except,” after “compensation” in this section, is a limitation on the preceding phrase, “ in lieu of ah other compensation,” and that what follows the word “ except ” constitutes a part of the compensation of such justices. It must be conceded that there is great force in this argument; and if the interpretation was to be confined solely to the words used, without regard to the object of the legislation, it might be controlling. But in determining this question, we must, as we have seen, take into account and consider the words used in the light of the object which the legislature had in view, and the end the legislation was intended to accomplish. By the first part of the section they had determined to fix the compensation, which in the same section they call salary, at six (6) thousand dollars. They then provided a fund to meet the expenses of the judges when from home, in the discharge of certain specified official duties, and make that depend entirely upon the contingency of their being from home in the discharge of these duties.

It seems quite clear, therefore, that at the time of enacting chapter 408 of the Laws of 1870, the compensation or salary of the judges of the Supreme Court was limited to $6,000, and that the judges were entitled to receive, in addition thereto, such expenses as they might incur by reason of absence from home on special official business, at the rate of five dollars per day. No one would contend that under that act the judges had a right to a fixed or certain compensation beyond the $6,000. Theper diem was in no sense compensation for services or a part of the judge’s salary. Salary is defined by Webster as “a recompense or consideration stipulated to be paid to a person for services.” If I am right in the above conclusion, it follows that the relator would not be entitled to the amount claimed, unless the same can be paid under the provision of chapter 541 of the Laws of 1872. That act after providing the means for paying the salaries and expenses of justices of the Supreme Court, contains the following enactment: “ The said justices of the Supreme Court, except in the first judicial district, shall receive the sum of twelve hundred dollars, annually, from the first day of January, eighteen hundred and seventy-two, in lieu of, and in full of all expenses now allowed by law. This subdivision shall not increase the pay of any judge except the justices of the Supreme Court.”

It is insisted by the relator that this provision manifestly intended this $1,200 as compensation to the judges, absolutely, as increased pay; and this contention is based mainly upon the language of the concluding sentence of the section; and that as the pay of any judge, except the justices of the Supreme Court, are not increased by this provision, the inference is that the pay of judges, excepted from the prohibition, is increased, and that the word “ pay,” as used in this act, is synonymous with “ compensation,” as used iff the constitutional provision above quoted. But for the jneceding part of this amendment this contention would seem sound, and the deduction made by the relator from the same would be quite controlling. But this provision, like the other to which we have referred, must be construed as a whole; and in construing it the court may look out of the act itself to other statutes “ in pa/ri material (Turnpike Co. v. People, 9 Barb., 161; U. S. v. Collier, 3 Blatchf., 325.) And while it is true that the legislature is not vested with judicial functions which, will enable it to put judicial construction upon statutes, the subsequent acts of the legislature upon the same subject sometimes afford complete demonstration of the legislative sense of its own language, and affords a safe guide for the court in expounding a statute. (Alexander v. Mayor, etc., 5 Cranch, 1.) In interpreting the law judges are to explore the intentions of the legislature, yet the construction to be put upon a statute must be such as is warranted by, or at least not repugnant to, the words of the act.” (McClusky v. Cromwell, 11 N. Y., 604.) It is equally well settled that words, absolute of themselves, and language the most broad and comprehensive, may be qualified and restricted by reference to other parts of the same statute in which they are used, and to the circumstances and facts existing at the time to which they relate or are applied.” (Smith v. The People, 47 N. Y., 837.) In this case the court also used this language: “ In case of doubt or uncertainty, acts in pa/ri materia, passed before or after, and, whether repealed or unrepealed, may be referred to in order to discover the intent of the legislature, in the use of particular terms.”

As we have seen, the object of the provision of section 9 of chapter 408 of the Laws of 1870, in allowing a per /Mem of five dollars to judges while officially engaged away from their homes, was to pay or provide for their expenses, and was in addition to their salary or compensation for services as judges. Chapter 541 of the Laws of 1872, provides a gross sum of $1,200 to be paid the judges annually in lieu of and in full for all expenses now allowed by law, in other words, in lieix of and in full for the expenses of five dollars per day while engaged in holding General Term, Special Term, Circuit, Oyer and Terminer, or attending conventions. By section 13 of article 6 of the Constitution, the relator is relieved and prevented from performing any of the above enumerated duties, and cannot, therefore, incur any of the contemplated expenses. As these expenses are nowhere in the statute, in express terms, denominated a jiart of the compensation or salary for services, I am inclined to the opinion that they were not intended by the legislature, and are not within the statute a part of the compensation of the judges, and do not, therefore, come within the prohibition of that constitutional provision.

This view seems to be strengthened by chapter 643, Laws of 1873, and chapter 373, Laws of 1875, in both of which acts, in making appropriation for judicial expenses of the State, the legislature use the terms “ salaries and expenses,” thereby seeming to keep up the distinction after the enactment of chapter 541 of the Laws of 1872 ; and again, in chapter 270 of the Laws of 1888, the legislature appropriate a compensation of justices of the Supreme Court, whose terms of office are abridged under the provisions of section 13, article 6 of the Constitution, who shall have served as such justices ten (10) years, $12,000. It appearing from the affidavit of the defendant that but two (2) such cases exist in the State, the legislature provided for them compensation at the rate of $6,000 each a year.

Matthew Hale, for the relator.

Z. 8. Westbrook, for the defendant.

I am, therefore, of the" opinion that the relator is entitled to receive of the State, as compensation, but $6,000 per year from and after the date of the abridgement of his term of service as justice of the Supreme Court, and that his application for a peremptory mcmdamus must be denied, with costs.

The decision at Special Term was affirmed pro forma by the General Term.

Present — Landon and Edwards, JJ.

Order affirmed, with costs.


source: Caselaw Access Project

author: Learned, P. J.: Ingalls, J.:

license: Public Domain

text:
    JOHN DEAN, Respondent, v. WILLIAM WOODWARD, Jr., and JAMES STILLMAN, Appellants.

      Broker employed to sell merchandise — presumption as to the period of his employment

    Where a broker, engaged in procuring sales of merchandise, enters upon such employment without any definite term thereof being fixed, and continues such service through a series of years upon substantially the same terms of compensation as are first agreed upon, the parties, at the end of each year, settling their accounts in regard to such services, and the employer paying at such time the compensation found to be due therefor, ’and at the beginning of each year furnishing samples of the merchandise to he sold, and the broker procuring purchasers thereof, a decision of the trial court that the original contract of hiring was for -one year, and was thereafter renewed from year to year upon the same terms by mutual consent, will not be disturbed on appeal.
    Under such circumstances there exists no right on the part of the employer, should the trial court hold that there was an employment from year to year, to terminate the same by notice in the middle of the season of :such employment; the ■same oan only be terminated at the end of the year.
    Appeal by the defendants from a judgment of the Supreme Court, entered, upon, the report of a referee, in the office of the clerk of the county of Rensselaer on the 4th day of September, 1888, in favor of the plaintiff for $464.65.

      Henry A. Kmg, for the appellants.

      James Lansmg, for the respondent.
   Learned, P. J.:

About September 1, 1883, the plaintiff agreed to sell cotton for defendants as a broker. His compensation was to be fifty cents per bale for all sales he should make, and twenty-five cents for all trade that he introduced where manufacturers should send orders direct to defendants. It does not appear that his employment was for any specified time; nor is it expressly stated for how long a time he was to have the benefit of the twenty-five cents per bale for the trade introduced by him. But he says that he settled “ for that year ” on that agreement; and he does not seem to claim that, on that agreement solely, his right to the twenty-five cents per bale lasted beyond the year.. . ,

On August 22, 1884, the defendants wrote the plaintiff a letter in which the terms of brokerage to be done by plaintiff are stated in substantially the way above set forth. The plaintiff states that on these terms he sold for defendants during what he calls the cotton year of 1884 and of 1885, and that he settled on these terms for the sales of that year. He alleges in his complaint that about September 1, 1886, he and they renewed the agreement for another year, and that he entered upon its performance. On January 15, 1887, defendants wrote him that they must end their arrangement and that thereafter they would allow him brokerage only on such sales as he should make for them. In April, July and August, 1887, defendants sold to certain customers, cotton amounting to 1,140 bales.' On these sales the plaintiff claims twenty-five cents per bale; and the referee has allowed this claim on the ground that sales had been previously made to those customers through the efforts of plaintiff. These customers were the Shenandoah Mill, Warner, De Forest & Co., The Mount Ida Company, The Yermont Mill and Robert Amblett.

If we look at plaintiff’s own testimony,'we shall find that of these customers he made direct sales after August 1, 1886, and before January 15, 1887, to the Yermont Mills and the Mount Ida Company. He does not remember any others and he does not claim to have sold to any others of these customers, between August 1,1886, and January 15, 1887. The referee therefore, in respect to the others of these customers, must have allowed the plaintiff to recover on the ground that, in years prior to August 1,1886, the plaintiff had sold to them.

The basis of plaintiff’s claim is that his employment in each instance was for the year, for what he calls the cotton year; and he states that he settled with defendants on the terms aforesaid for the services of the respective years. The referee finds that, about September 1, 1886, the contract was renewed for the year. Now there is nothing express in the contract showing for how long a time the plaintiff was to continue to receive twenty-five cents per bale for cotton sold by defendants directly to customers. It is hardly possible that the agreement made, for instance, in September, 1883, was that for all time to come the defendants should pay the plaintiff twenty-five cents on every bale which they should sell to a customer introduced by him. This would be, as said in their letter, a royalty for all time. And the plaintiff places no such construction on the agreement, otherwise he could not have settled .at or about the end of the respective years for his services.

The plaintiff then must have claimed that for any sales made by defendants directly during the year, for which he was employed by them, to persons whom he had, during that year, obtained as customers, he should have his twenty-five cents ber bale. When, then, about the 1st of September, 1886, plaintiff applied for employment again, he had, as he says, settled for the sales of the year then past. The contract then made was a new agreement, and the plaintiff’s rights depend on that new agreement.

The plaintiff’s claim is that, under that agreement then made, he is entitled to more compensation than he has received for the work which, he has done. He does not seek to recover for work which he might have done if he had not been discharged. ’ But his claim is that, for the work which, he did, he is entitled to further compensation, that is to say, for the twenty-five cents a bale for sales made directly by the defendants to customers whom he had procured. Plainly, this claim must be limited to those customers whom he had procured during that year, because the agreement was, as he says, renewed about September 1,1886. The renewal did not imply that he was to be further compensated for customers whom he had previously obtained. It implied only that for work done after September 1, 1886, he should be compensated on the old terms, viz., fifty cents per bale for sales made though him; twenty-five cents for sales made directly to customers whom he should procure, not to those whom he had previously procured. If the latter construction were correct, he would be entitled to the twenty-five cents, even though there had been no renewal of the agreement about September 1, 1886. In this view he. can recover only on the bales sold to the Vermont Mill and’ the Mount Ida Company, 200 in all.

Judgment reversed, new trial granted, referee discharged, with costs in this court to the defendant, unless the plaintiff shall elect, within twenty days after service of copy of this order, to reduce his recovery to fifty dollars, and interest from the commencement of this action, and the costs below, in which ease the judgment, so reduced, is affirmed, without costs in this court.

Landon, J., concurred.

Ingalls, J.:

In August, 1883, a verbal agreement was entered into by the parties hereto, by which the plaintiff was employed by the defendants to sell cotton upon the following terms: The plaintiff was to receive as his compensation fifty cents for every bale of cotton the sale of which should be directly negotiated by him, and twenty-five cents for every bale in the sale of which he obtained the customer, and the defendants perfected the sale either by direct interview or through correspondence with the customer. The agreement did not, in express terms, prescribe the length of time the plaintiff’s employment should continue; nor does it appear that the parties subseqently, by express agreement, created any limitation to the time of service. The plaintiff entered upon such employment on the 1st of September, 1883, and was provided with samples of cotton, by the defendants, to enable him to make sales. The plaintiff continued in such service during the year, receiving, from time to time, money from the defendants as payments for his services, and at the expiration of such year the parties settled their accounts, and the plaintiff received whatever was his due for the service rendered by him. The relation between the parties in regard to such employment by the plaintiff, continued from year to year, without any material change either in the terms of their agreement or in regard to the manner the business was transacted between them, until September 1, 1886, when the plaintiff visited the defendants at their place of business and inquired of them in relation to his continuance in their service, and as the result of the interview he was furnished by the defendants with samples, and resumed his work. The plaintiff states the interview as follows:

I reside in the city of Cohoes at present; my business is cotton and wool broker; have been engaged in that business about fifteen years and know defendants Woodward & Stillman; they do business in the city of New York; they are cotton merchants; I made their acquaintance on or before 1883; I visited their place of business about September 1, 1883; I met there Mr. Woodward; I had some conversation with him; at my interview with Mr. Woodward I tallied with him in relation to selling cotton to manufacturers for their account; I said I had an outlet where I thought I could place considerable cotton for them, and 1 told him my terms would be fifty cents per bale for all sales of cotton I should make for their account; and that all trade that I introduced, when such manufacturers should send orders direct to- the house, I was to receive twenty-five cents per bale; and, also, such trade as was made by Woodward and Stillman, where I had introduced customers to the defendants or where Mr. Woodward corresponded with customers afterwards; they gave me samples, and I sold through that year; I do not recollect the number of bales I sold; we settled for that year by that agreement; I visited them at the commencement of' the cotton year of 1884, and several times during the year, and I got samples during 1884 to 1885; at the commencement of cotton year of 1885 I received samples to sell by the same terms for th<esales of that year; I went- there again at the commencement of the cotton season of 1886, first of September; I had an interview with Mr. Woodward, and I inquired if he had any samples ready ; he hesitated for a little while; he inquired from one of his clerks, a bookkeeper; he inquired what amount of cotton I sold the year prior, and on Mr. Woodward reading the amount he came back and in my presence told the parties to forward samples to me; and I received the samples and continued the business of 1886 to 1887 upon the same terms. Q. Were any or different terms made? A. No, sir; the Shenandoah Cotton Company were customers whom I had introduced to them; the Mount Ida Manufacturing Company were customers that I had introduced to them, and the Vermont Mills also, and Robert Amblett and Warner, De Forest & Co. also, all prior to January 15, 1887.

It is admitted that the defendants were copartners and sold to the Shenandoah Cotton Company 500 bales of cotton August 23, 1887, and 300 bales of cotton to Warner, De Forest & Co., of Amsterdam, N. Y., February 7 and 8, 1887, and 120 bales to Warner, De Forest & Co., August 24, 1887, and 180 bales to the Mount Ida Company, Troy, on the 3d and 4th days of April, 1887, and twenty bales to the Vermont Mills on the 26th day of July, 1887, and twenty bales to Robert Amblett, of Little Falls, on the 5th and 27th days of July, 1887. The witness further stated: I never received any pay for the sale to either of those parties; none of these sales were made direct by me. On the 15th day of January, 1887, the defendants addressed to the plaintiff the following letter:

“New York, Jo/rwa/ry 15, 1887.
“ Mr. John Dean, Troy, N. Y. :
“ Dear Sir. — The season is passing and our sales through you amount to little or nothing comparatively. The country which we have allowed you is large, and there is a large consumption of cotton therein, and we cannot afford to be longer excluded from the trade, and we must end our arrangement and make some other. We will only hereafter allow you brokerage on such sales as you may make £°r us- “Yours, very truly,
“WOODWARD &• STILLMAN,
“Per B”

The plaintiff made no reply in writing to such, letter, but subsequently an interview occurred between the parties, as to the purport of which they disagreed in their evidence upon the trial; and it was the province of the referee to determine whose version of that conversation was most reliable. The statement of the plaintiff in relation thereto seems consistent with the claim which he makes that his term of service extended to the close of the year, September 1, 1887. It will be perceived that the letter did not purport to wholly terminate the relation between the parties, but merely to modify the agreement, restricting the plaintiff to compensation for direct sales which he should subsequently make. At the trial the plaintiff disclaimed any intention of seeking compensation for direct sales. And so the referee has found. The plaintiff only claimed to recover twenty-five cents per bale upon the 1,140 bales which the defendants admitted at the trial, as above stated, that they had sold as follows: Five hundred bales to the Shenandoah Cotton Company, August 23, 1887; 300 bales to Warner, De Forest & Co., February 7 and 8, 1887; 120 bales to the same firm August 24, 1887; 180 bales to Mount Ida Manufacturing Company on the 3d and 4th days of April, 1887; twenty bales to the Yermont Mills on the 26th day of July, 1887; twenty bales to Robert Amblett, on the 5th and 27th days of July, 1887. According to the evidence on the part of the plaintiff, all such sales were made by the defendants to parties who had been introduced as customers by the plaintiff’ to the defendants, and he states that he has received no compensation from the defendants, based upon such sales, which were made to customers whom he had introduced to defendants. The referee, as appears by his report, has allowed the plaintiff twenty-five cents for each bale of cotton embraced in such sales, and for nothing else. The following facts found by the referee:

IY. That the cotton season or year in defendants’ business begins about the first of September in one year and ends about the same time in the next.
“Y. That about the month of August, 1883, the defendants entered into an agreement with the plaintiff, whereby it was provided that the plaintiff should travel and sell cotton for defendants to manufacturers from samples to be furnished him .by defendants, and that said defendants should pay him for such services the sum of-fifty cents for each bale of cotton, the sale of which should be directly negotiated by the plaintiff, and that in all cases where the plaintiff should obtain a customer or customers, and subsequent sales should be made by defendants to plaintiff’s said customers, either by direct interview or by correspondence with them, the plaintiff should receive twenty-five cents per bale for each bale so sold by defendants to said customers.

YI. That said plaintiff entered upon said employment, having accepted said terms and sold cotton for the defendants through that year, and the defendants settled with and paid plaintiff for his services rendered during that year in accordance with said agreement.

VII. That the'plaintiff thereafter continued in the, employment of defendants from year to year, under said agreements, defendants furnishing samples and plaintiff receiving the stipulated compensation for sales made directly and indirectly by him. That at the commencement of the cotton season for the years 1886, 1887, and about September 1, 1886, the plaintiff and defendants had cm interview at which said contract was renewed for the ensuing cotton season or year, and the plaintiff entered upon his employment thereunder. That said employment was for and during the year commencing about September 1, 1886, and ending September 1, 1887.

VIII. That during the cotton year or season commencing about September 1, 1886, and ending September 1, 1887, the defendants sold, either through correspondence or personal interview with the parties, cotton, as follows : Shenandoah Cotton Company, 500 bales; Warner, De Forest & Co., 2 lots, one of 300 bales, and one of 120 bales; to the Mount Ida Manufacturing Company, 180 bales; to the Vermont Mills, 20 bales; aud to Robert Amblett, 20 bales; aggregating 1,140 bales. That each and every of said bales of cotton were sold to parties to whom sales of cotton had previously been made by, and through the efforts and negotiations of plcmvtiff, and each of said purchasers were customers furnished or introduced to the defendants by the plaintiff. That, under and pursuant to the terms and conditions of said contract and agreement between plaintiff and defendants, the plaintiff thereupon became entitled to demand and receive of the defendants the sum of twenty-five cents for each and every bale so sold to said parties as aforesaid, the same amounting in the aggregate to $285. That no part of said sum has been paid.

Assuming, therefore, that the facts and the conclusion therefrom are correctly found by the referee, it remains to be determined whether his conclusion in regard to the law applicable thereto is defensible. The referee has found, as conclusions of law, the following:

I. That there was a valid and subsisting agreement between the defendants and the plaintiff for the employment of the plaintiff during the year commencing September 1, 1886, and ending September 1, 1881; that said employment was entered upon and was in all respects performed by the plaintiff upon his part.

II. That, under and by virtue of said contract, the defendants became bound to pay the plaintiff twenty-five cents for each bale of cotton which they might sell through their own correspondence or by personal interview during that year to persons who were, or theretofore had been, introduced to them as customers by the efforts of plaintiff.

III. That the plaintiff should have judgment against the defendants for the sale of said 1,140 bales of cotton, at twenty-five cents per bale, amounting to the sum of $285, together with interest thereon from September 1, 1881, amounting, at the date of this report, to seventeen dollars and ten cents, making a total of $302.10, besides the cost of this action.

The counsel for the plaintiff contends that, although the original agreement omitted to specify the length of time the plaintiff’s employment was to continue, yet, considering the nature of the business and the manner it was conducted, and the situation of the parties, that the term of service should be considered in legal effect one year, and that the continuance from year to year, for a series of years, without any material change in the terms of the agreement, should be regarded as a contract of hiring and service from year to year; and that the relation thus created could only be terminated by either party by a notice, taking effect at the close of the current year. That as such year commenced on the 1st day of September, 1886, it could not be terminated by the letter addressed to the plaintiff January 15, 1881, so as to deprive the plaintiff of compensation, based upon the sales made by the defendants previous to September 1, 1881, to customers who had been introduced by plaintiff. Whether an agreement, like the one in question, which contains no express limit as to the duration of the term of employment, ■ can be regarded in law as a hiring for a year, presents a question of no little difficulty, owing to the want of uniformity in the decisions upon the subject by the courts in this country and in England, and in the views exjnessed by elementary writers. In Smith’s Mercantile Law (Am. ed.), at page 426, the author states: “ If there be no specified agreement, but the hiring is a general one, without mentioning tíme, it is considered to be for a year certain. If the servant continue in employment beyond that year, a contract for a second year is implied, and so on.” At page 427 he says: “ It follows, from what is above stated, that if the master dismiss his servant, hired generally, without cause, the latter will have a right to wages up to the expiration of the year.” In Smith’s Law of Master and Servant (Am. ed.), page 75, the rule is thus stated: “ Where no time is limited, either expressly or by implication, for the duration of the contract of hiring and service, the hiring is considered as a general hiring, and in point of law a hiring for a year. This rule was applicable to all contracts of hiring and service, whether written or unwritten, whether express or implied, and whatever be the nature of the service.” In Beeston v. Collyer (4 Bing., 309; 13 Eng. Com. Law, 518), Best, Ch. L, says : “If a master hire a servant without mention of time, that is a general hiring for a year, and if the parties go on four, five or six years, a jury would be warranted in presuming a contract for a year in the first instance, and so on for each succeeding yea/r as long as it should please the parties; such a contract being implied from the circumstances, and not expressed, a writing is not necessary to authenticate it.” In Williams v. Byrne (7 Adol. & Ell, 177; 34 Eng. Com. Law, 115) Littledale, J., remarks: “ It appears not to be disputed that the parties were, at any rate, bound to the end of the first year. I think their position was the same in all the subsequent years Therefore, when any year had commenced, the service was to mm on to the end. And this why to continue as long as the parties pleased, that is, till one of them determined the engagement by reasonable notice expiring at the end of the current year.” In Faucett v. Cash (5 Barn & Adol., 908; 27 Eng. Com. Law, 382) Denman Ob'. L, says: “ The general rule is that if a master hire a servant without mentioning the time, that is a general hiring, and in point of law a hiring for a year.” In Chitty on Contracts (9th Am ed.), 589, the author says: “With regard, however, to eases other than domestic or menial servants, there is no inflexible rule of law that a general or indefinite hiring is a hiring for one year, and the question must, therefore, he considered in connection with the circumstances of eachparticula/r case. But it appears that if there be no evidence to the contrary, the general engagement of a clerk will be deemed to he a yea/rl/y hiring.” In Baxter v. Nurse (46 Eng. Com. Law, 934) Tindall, Ch. J., remarks: “ Upon the first ground on which the present motion was made, namely, that the jury ought to have been directed, as upon a general rule of law, that the hiring in this case must be taken to have been by the year, it appears to me that the principle on which contracts of this nature, which have ' been entered into without any definite arrangement as to time, are held to be contracts for a year, is by no means an inflexible rule, but that is a presumption to be raised from contracts of the same kind; and that the judge at a trial is not authorized to lay down any general rule upon the subject.” In Wood’s Law of Master and Servant (page 283) the author says: “ With us, the rule is inflexible that a general or indefinite hiring is, prima facie, a hiring at will; and if the servant seeks to make it out a yearly hiring, the burden is upon him to establish it by proof.” Story on Contracts (vol. 2, § 962) contains the following : The author, after stating the rule as to domestic and menial servants in regard to terminating their employment, pursuant to custom by notice of thirty days, remarks: “ But this condition is only applicable in cases of menial or domestic services, and, does not apply to trade servants, servants in husbandly, clerks, overseers or governesses, and servants in similar stations. In such cases the contract cannot be determined until the end of the year.” (Sec. 963.) “ But contracts with other than domestic and menial servants, when the service is from year to year, notice must be given so as to expire with the end of the year, the contract not being determinable during the year.” In Greer v. The People's Telegraph and Telephone Company (50 Superior Ct., 517), which was a hiring for one yecvr, from September 1, 1881, and the servant remained in service until the close of the year, and continued on until October 31, 1882, when he was discharged without his consent, Sedgwick, Ch. J., remarks: “ On these facts the law is, that the remaining in the service for any time by the consent of

the employer, renews the first contract for one year, or, if there had been no hiring m the first place expressly for one yean', the law implies a contract for service for that time; and, also, if there be a continuance of services after that time, a renewal for one year.” It seems to be established, by the decisions of the courts of this State, that when, by the contract of hiring, the time is expressly stated to be for one year, that a holding over will be regarded in law as hiring for another year, and so on from year to year; and in such case the employment can only be determined by a proper notice to take effect at the end of the current year. In Wallace v. Devlin (36 Hun, 275); Vail v. Jersey L. F. Manufacturing Company (32 Barb., 564) Allen, J., says: “A continuance in the employment with the consent of the defendants, after the expiration of the current year, was equivalent to a new hiring upon the same terms.” Extracting from the foregoing decisions the legal doctrine applicable to this case, we conclude that it may be safely and properly held that, regarding the nature of the service which the plaintiff undertook to render, and the terms of his employment, and the fact that such service was continued through a series of years upon substantially the same terms, and that at the end of each year the parties settled their accounts in regard to such hiring and service, and payment was made to the plaintiff of any balance which was then due him, and that the plaintiff was furnished samples of cotton and allowed each year to resume the work; and particularly that, on the 1st of September, 1886, the plaintiff visited the defendants, and an interview occurred between them at the defendants’ jilace of business in regard to the continuance of the plaintiff in defendants’ service, and that the plaintiff was again provided with samples of cotton by the defendants and allowed to enter upon the same service, we conclude that it became, at least, a question of fact for the referee to determine whether the parties did not understand and intend that the original contract of hiring was for one year, and that thereafter the same was renewed from year to year upon the same terms by mutual consent; and especially whether what occurred between them on the 1st of September, 1886, did not amount to a recognition of such a relation, and to a renewal of the contract of hiring and service upon the same terms for another year ending on the 1st of September, 1887. In Tatterson v. Suffolk Manufacturing Company (106 Mass., 56) Wells, J., at page 60, remarks: “They did enter into some agreement by the mere fact of continuing their relations of employment and service. It was a relation of contract. The terms of the contract, in the absence of express words, are to be ascertained, not alone by what occurred within the year, but also from all that had transpired previously. From all the evidence the jury must determine, as an inference of fact, what was the understanding with which the parties entered upon the second year of employment and service; that, when found, constitutes their contract,” (See, also, Beeston v. Collyer, supra.) In this case the referee has found, as a fact, the following: “ That at the commencement of the cotton season for the years 1886, 1887, and about September 1, 1886, the plaintiff and defendants had an interview at which said contract was renewed for the ensuing cotton season or year, and that the plaintiff entered upon his employment thereunder ; that said employment was for and during the year commencing about September 1, 1886, and ending September 1, 1887. We think the evidence sustains such finding of fact. Upon such finding the referee based a legal conclusion that the letter of January 15, 1887, did not have the effect to cancel the contract or to terminate the plaintiff’s employment. In such determination we think he committed no error. In regard to the amount which the plaintiff should recover, the evidence does not furnish a very satisfactory basis upon which to estimate the same. The counsel for the plaintiff insists that the action was tried upon á conceded theory, that in the event that the plaintiff established a legal cause of action, he should be entitled to recover twenty-five cents upon 1,140 bales of cotton which the defendants admitted that they sold to certain customers named, and who, as the plaintiff testified, he introduced to' the defendants, and upon which sale he had received no compensation. It is quite possible that the referee may have adopted and acted upon such theory in determining the amount which the plaintiff was entitled to recover. It is unfortunate that the facts were not more fully developed at the trial" upon that branch of the case instead of being left to be inferred, so that this court could discover from the evidence a satisfactory basis upon which to sustain the conclusion of the referee in regard to the amount which he awarded to the plaintiff as his damages. From all the facts disclosed and the legal principles which we deem applicable to them, we conclude that the plaintiff’s recovery must be restricted to the two sales of cotton, amounting to 200 bales, which were made by the defendants to customers who the plaintiff testified he had introduced to the defendants subsequent to the letter of January 15,1887. A computation at twenty-five cents per bale, made upon the 200 bales; amounts to fifty dollars, which sum the plaintiff is entitled to recover, with the interest thereon, from the time of the commencement of the action. The plaintiff should be allowed to stipulate to accept such amounts, with costs of the action, except in this court, and avoid the delay and expense of another trial. But in case the plaintiff declines so to stipulate, a new trial should be directed before another referee, with costs to abide the event of the action.

Judgment reversed, new trial granted, referee discharged, with costs in this court to the defendants, unless plaintiff shall elect, within twenty days after service of a copy of this order, to reduce his recovery to fifty dollars, and interest from the commencement of the action and the costs below, in which case the judgment so reduced is affirmed, without costs in this court.


author: Learned, P. J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. THOMAS C. PLATT, as President of the United States Express Company, v. EDWARD WEMPLE, Comptroller of the State of New York.

      Taxe on joint-stock eompomy wider chapter 542 of 1880, as amended, hy chapter 361 of 1881 — powers of joint-stock companies — statutes relative to, presumption that a company is organized, thereunder — fact of incorporation, how determined.

    The provisions of section 3 of chapter 543 of the Laws of 1880, as amended hy section 3 of chapter 361 of the Laws of 1881, declaring that “every corporation, joint-stock company or association whatever, now or hereafter incorporated or organized under any law of this State, * * * shall be subject to and pay a tax as a tax upon its corporate franchise or business,” includes an association organized as an express company by articles of agreement, signed by five or more persons, which provide for the issuing of stock, and for the assignment thereof, and for the assignee thereof becoming a member of the company, for the making of assessments on such stock by a board of directors designated therein; for a forfeiture of the stock, in case of their non-payment; for the election of directors by ballot by the stockholders entitled to a number of votes equal to the number of shares held by them, respectively; placing the power of management in the board of directors; providing that its real estate, bonds 'and mortgages are to be executed by the president and his successors, and that suits are to be brought in his name; that the death or legal incapacity of any associate shall not operate as a dissolution of the company; that the survivors may continue to prosecute tko business of the company, and that on the death of a shareholder the survivors may purchase his shares, unless his heirs, being legally competent, elect to retain them.
    The insertion of the words “ or organized” by the amendment (chap. 361 of 1881) indicates that the legislature did not intend to confine the third section of the act to bodies which were in strictness incorporated, but intended to include also bodies which were organized under the laws of the State.
    It would seem, in view of the provisions contained in section 3 of article 8 of the Constitution of the State of New York, that the word “corporation” may sometimes be used to include joint-stock companies.
    The statutes of the State of New York, relating to joint-stock companies, conferring upon them the privileges,

      First. To sue and be sued in the name of the president.

      Second. Not to be dissolved by the death of a stockholder or by his assignment of his stock.

      Third. To purchase, hold and convey property in the name of the president.

      Fourth. To extend the term of their existence by the consent of two-thirds of their stockholders against the wish of the other third.

      Fifth. That three-fourths of the directors may reduce the capital stock.

      Sixth. That the stockholders are not liable for debts of the association, except after judgment and executions returned unsatisfied against it — distingush such joint-stock compames from mere partnerships.
    Where an association is formed under articles of agreement which provide for the exercise of these privileges mentioned in the statute, although no reference is made in such articles to the statute conferring them, the association will be presumed to have been organized under such statutory provisions.
    The decision of the question as to whether an association of individuals constitutes a corporation is not to be determined' by the fact that the term, “corporation,” is or is not used in its creation, but upon the question whether the body so created possesses the powers and faculties usually enjoyed by corporations; nor is the question one whether the business which is carried on might not be carried on by private persons, but whether the body, in the conduct of such business, exercises the privilege of corporate action.
    Certiorari issued) directed to tbe comptroller of tbe State of New York, commanding bim to certify and return to tbe Supreme Court all proceedings taken by Mm in reference to tbe assessment of a tax, under chapter 542 of tbe Laws of 1880, as amended by chapter 361 of the Laws of 1881, upon the United States Express Company.
    Edward Wemple, comptroller of the State of New York, in return to such writ, certified that prior to the 9th day of April, 1888, the United States Express Company was, on several occasions, called upon by the comptroller of the State of New York to present reports to him as to the amount of its capital stock employed within this State, for the purpose of enabling said comptroller to settle and adjust the taxes and penalties due from said United States Express Company to the State of New York, under the provisions of chapter 512 of the Laws of 1880, as amended by chapter 361 of the Laws of 1881, and chapter 501 of the Laws of 1885; that the United States Express Company refused to make such reports, and thereupon the comptroller proceeded to settle, fix and determine the amount of taxes and penalties due and unpaid from said company to the State of New York, the return setting forth the assessment so made for the years ending November first, from the year 1880 to the year 1887, both inclusive.
    The question presented by the certiorari was whether the relator, the United States Express Company, was taxable under the third section of chapter 512 of the Laws of 1880, as amended by chapter 361 of the Laws of 1881.
    Chapter 512, Laws of 1880, section 3, declares that “ every corporation, joint-stock company or association whatever, now or hereafter incorporated under any law of this State,” except, etc., shall be subject to and pay a certain tax, which is estimated by a certain percentage on dividends; and if there are no dividends, by a certain percentage on the valuation of the capital stock made according to the provisions of section 1. Section 6 of the same act imposes, “ in addition to the taxes above provided, that every corporation formed for railroad, * * * purposes, and every elevated railway company, and every other corporation, joint-stock company or association, * * * engaged in the business of transporting freight or passengers ” shall pay a tax to the State. This is a tax on gross earnings for business transacted in this State. The said section 3 was amended by chapter 361 Laws of 1881, so as to read in the clause above quoted “ incorporated or organized.” It was again amended by chapter 359, Laws of 1885, but not so as to change this clause.

      Tbe United States Express Company is an association formed by articles of agreement dated April 22, 1854, signed by five or more persons. The agreement adopts the aforesaid name; provides that its capital stock shall be 5,000 shares of $100 each, which number may be increased or diminished by the board of directors ; provides for certificates of stock and for the assignment thereof, and for the assignee being a member of the company; and that the assignor shall not be hable for subsequent liabilities of the company. The agreement further provides for the making of assessments by the directors to pay losses, and authorizes the directors to forfeit and sell stock when the holder does not pay his assessment; for the election of directors by ballot, each shareholder being entitled to votes equal to the number of his shares, and that the board of directors may fill vacancies. A meeting of shareholders for the election of directors is to be called at the request of two-thirds in amount The full power of management in every respect is placed in the board of directors. Deeds of real estate, bonds and mortgages are to be made to the president and his successors. Suits to be brought in his name. The death or legal incapacity of an associate is not to operate as a dissolution. The survivors may prosecute the business, and on the death of. a shareholder the survivors may purchase his shares, unless his “ heirs,” being legally competent, elect to retain them. Said company was extended to a further term of twenty years from May 1, 1864, and by a vote of the directors was extended twenty years from May 1, 1884.
    On the 9th of April, 1888, the comptroller assessed on the company a tax, under the aforesaid third section, for the years 1880 to 1887, and also assessed the penalties prescribed. On its refusal to pay the comptroller issued his warrant. This action is brought to review his proceedings and restrain the collection. It is agreed that the only question is whether, under the laws and the Constitution, the company is liable for those taxes, or any of them.

      IVilUcim IF. Mao Farlamd and Clarence A. Sewa/rd, for the relator.

      William A. Poste, deputy attorney general, for the respondent.
   Learned, P. J.:

The insertion of the words “ or organized,” by the amendment of 1881, indicates that the legislature did not intend to confine the third section to bodies which were, in strictness, incorporated, but intended to include also bodies which were organized under the laws of the State ; so that the question is whether this company is a joint-stock company or association, organized under the laws of the State, and, perhaps, as to the tax of 1880, whether it is a corporation, though it would seem, by section 3 of article 8 of the Constitution. That the word “ corporation ” may sometimes be used to include joint-stock companies, so that it may not be inconsistent to speak of a joint-stock company as being also a corporation.

We may notice here that a peculiar rule exists as to what are called mining partnerships, which are formed when several tenants in common of a mine unite in working it. In these cases, partly because there are several interests in the land which any owner may transfer, and partly from the necessity of. the case, one person may convey his interest without dissolving the partnership. (Kahn v. Smelting Co., 102 U. S., 641.) It is desirable to observe this, and not to reason in regard to other partnerships from tne peculiarity of that class.

The counsel for the relator insists that the Court of Appeals has decided that this third section embraces only corporations. The decisions supposed to establish this are: People v. Home Insurance Company (92 N. Y., 329); People v. Equitable Trust Company (96 id., 393); People v. Gold and Stock Tel. Oompcmy (98 id., 67). Now, the question in the first case (aside from that of constitutionality) was whether the fact that the dividends were derived in part from exempt securities invalidated the law. The court held that it did not, because the tax was not on property but on franchise or business. No question was made as to whether joint-stock associations were included or whether they were not corporations.

The court was only defining the nature of the tax as distinguished from one on property. The very section in question used the words “ corporate franchise or business,” after naming ^the bodies subject to the tax; and if anything is to be drawn from that opinion it is that these joint-stock associations are corporations, for the court says, at page 340, that the aforesaid act of 1881, after describing the corporations subject to its provisions, continues as follows: ” thus, including joint-stock companies and associations under that name of corporation. But, as we have had occasion to remark before, decisions of courts are authoritative on the matters necessarily decided, not upon every expression in an opinion.

The next case held that, as to foreign corporations, the tax was upon business. In the third case the counsel for the relator insist that the court declared that the act “ deals, as its title declares, with the subject of taxation of corporations, and no other matter.” The court immediately after these words cited the title itself, which mentions joint-stock companies and associations, thus implying that the title declared that such associations were corporations. But there was really no question presented as to joint-stock associations; and no decision made. It may be noticed, also, that in the cases in the Supreme Court of the United States, viz.: Society for Savings v. Coite (73 U. S. [6 Wall,], 594) and Provident Institution v. Massachusetts (Id., 611), no distinction is suggested between corporations strictly so-called and joint-stock associations. Thus it is said in the last case That private corporations and all trades and avocations by which the citizens acquire a livelihood may be taxed.”

The counsel for the relator. insist that this express company is simply a partnership, with no privileges of corporate action under the laws of this State. The decisions of other States that, in those States, such associations are partnerships, or even that they are partnerships in New T ork, have no binding force here. (Taft v. Ward, 106 Mass., 518; Boston cmd Albany R. R. Co. v. Pearson, 128 id., 445.) We must determine the question under our own laws and decisions. Chapter 258, Laws of 1849, provides that any joint-stock company or association, consisting of seven or more shareholders, may sue or be sued in the name of the president. Chapter 153 of the Laws of 1853, provided that, after judgment thus recovered and execution returned unsatisfied, suits might be brought against shareholders or associates with some further provisions in this respect. This statute seems to be substantially re-enacted in the Code of Civil Procedure, sections 1919 and 1923, inclusive. Chapter 245 of the Laws of 1854, authorizes these associations to provide that the death of a stockholder or the assignment of his stock shall not work a dissolution; also, that they may devolve on three or more of the partners the sole management of the business. Chapter 289 of the Laws of 1867 authorizes these associations to purchase, hold and convey real estate, and provides that conveyances shall be made to and by the president. Chapter 937 of the Laws of 1867 authorizes these associations, by consent of stockholders owning two-thirds in amount of the capital stock, to extend the time of existence. Chapter 290 of the Laws of 1868 authorizes the directors, by consent of three-fourths of their number, to reduce the capital stock. Chapter 599 of the Laws of 1881, authorizes a majority of the stockholders at a meeting to reduce the number of trustees. Chapter 505 of the Laws of 1885, requires every such association to file a statement annually of its name, date of organization, law under which it is organized, etc.

From these statutes it may be seen that these associations have these privileges: 1. To sue and be sued in the name of their president. ■ 2. Not to be dissolved by the death of a stockholder or by his assignment of stock, which is really to have perpetual succession during their term. 3. To purchase, hold and convey property in the name of the president, thus making an exception to 1 Revised Statutes (m. p. 728, § 49). 4. To extend the term of existence by consent of two-thirds against the wish of the other third. 5. That three-fourths of the directors may reduce the capital stock. 6. That the stockholders, under the act of 1853, should not be liable for debts of the association, except after judgment and execution unsatisfied against the association. This may be modified by the first sentence of section 1923 of the Code.

This express company has, in its.articles of agreement, accepted these privileges by assuming nearly all of them specifically. The right to sue by its president is assumed by this present litigation. Now, these are not privileges which a simple partnership, as such, possesses. It is true that by the Code (§1919) the right to bring an action in the name of the president is extended to some partnerships. Still, that is a special statutory right, and its extension to partnerships is no indication that this express company obtains such right by its own agi-eement and not by statutory law. If an association, by the language of its articles of agreement, assumes the privileges which are given by the statutes of the State,' it certainly cannot say that, because the ardides make no reference to these statutes, therefore the association is not organized under them. The counsel for the relator insists that the capital stock has none of the legal characteristics of the capital stock of a corporation. In fact, it has all those characteristics. The articles of agreement speak of the capital stock, of its shares, of certificates or scrip, of the absolute right of assignment thereof, “ in the usual form,” and of the record of the same. In short, there is no difference- whatever.

The counsel for the relator also drew an argument from section 5 of the above-cited act of 1849, which act is not superseded by the Code. That section was to the effect that nothing in the act contained should be construed to confer on such associations “ any of the rights and privileges of corporation, except as herein specially provided.” But if that section had any meaning, it implied that some rights and privileges of corporation were conferred by the act; as they certainly were.

It cannot be justly said by the relator that all these privileges arise from its own agreement, and are such as any partnership might acquire at common law. Two, especially, are of great value, and do not spring from its agreement merely: The right to hold property in the name of its president, and the right to sue and be sued in his name, even against and by its own members. At common law, as held in the above cited Massachusetts cases, such suits could not be maintained. We think, then, for the reasons above given, that this company is a joint-stock association organized under a law of this State.

We must further consider whether, within the meaning of this statute, it is a corporation. We have already noticed that, under the Constitution, the word corporation may embrace what is usually known as a joint-stock association, and, therefore, our conclusion that this company is a joint-stock association is not necessarily conclusive on the question whether it is a corporation under the statute in question. In Thomas v. Dakin (22 Wend., 9, at page 70) it was said that “ a corporate body is known to the law by the powers and faculties bestowed upon it.” “ The use of the term corporation in its- creation is of itself unimportant, except as it will ifnply the possession of these.” The court proceeded in that case to mention the powers and faculties. They are such as have been above mentioned, with the exception of the right to have a common seal, which the court say may be dispensed with altogether. For it had long since been held that corporations may contract without seal, and as conveyances were to be made by the president, his seal was sufficient to a deed. The court was of the opinion that associations having these powers were corporations. It is only necessary to refer to the very full and exhaustive opinions then delivered. Nor need we refer to all of the subsequent decisions. The correctness of that decision on this point is settled. (Supervisors of Niagara v. People, 7 Hill, 504.) It rested, as will be seen, on this principle, that a body which possesses the powers and faculties of a corporation is a corporation.

A similar question arose in Liverpool Insurance Company v. Massachusetts (77 U. S. [10 Wall.], 566). The plaintiff was a joint-stock association organized in England. Acts of parliament had expressly provided that the company should not be a corporation. A law of Massachusetts imposed a tax. The Supreme Court examined the question whether the plaintiff was a foreign corporation, and the court held that it was, because it possessed the attributes deemed essential to corporate character. These were: 1. An artificial name. 2. The right to süe and be sued in the name of an officer. 3. .Perpetual succession by transfer of stock. 4. Existence apart from the stockholders, which enabled it to sue and be sued by them. All these, and more, this express company has.

In Fargo v. McVicker (55 Barb., 437) it was held, on the question of removal to a Federal court, that an express company like the present was a corporation. To the same effect, Fargo v. Lowville and C. R. W. Co. (6 Fed. Rep., 787). Neither the case of National Bank v. Vanderwerker (74 N. Y., 234), nor that of Bray, President v. Farwell (81 id., 608) decide anything upon this point.

An unreported case of Bell v. Streeler is cited by counsel for relator where it was held that a certain company was not taxable as a corporation. The opinion says that none of the privileges of the company were of the essence of a corporation. See, on the other hand, Bank of Watertown v. Assessors (25 Wend. 686) and Sandford, President, v. Supervisors (15 Hun, 172), where the court held such an express company to be a corporation, and as such liable to taxation. See, also, People v. Assessors (1 Hill, 622), where the court held again that ■ associations under the general banking law were corporations, and taxable as such, and remarked: It may be true, as has been argued, that the legislature intended to make a legal being and give it all the essentials of a corporate body, and yet that it should not be a corporation. That the legislature could not do. * * * Human powers are not equal to the task of changing a thing by merely changing its name.” It seems to us that such is the task the relator undertakes. Having ail the essentials of a corporation, it claims that it is not a corporation, because it has not been so named, and because of the negative effect of section 3 of the act of 1854, to which the above-quoted remarks of the court are forcibly applicable.

It must be observed that the question is not as to the privilege of conducting the business of a common carrier. The relator has urged that because it is the common-law right of any person to be a common carrier, therefore, the relator has derived no privilege from the State. But this is not sound. We have in this State a multitude of corporations which carry on business of a kind which any private person might carry on. Bor instance, manufacturing companies. What they derive from the State is only the privilege of corporate action, not the privilege of manufacturing. Any individual may manufacture; but if several individuals, desirous of manufacturing, wish to do this with the convenience of action possessed by a corporation, then they must obtain from the State that privilege. On the other hand, there are certain things which neither individuals nor corporations may do without authority from. the State: Bor instance, issue notes as a circulating medium. 'But the privilege which this relator has obtained from the State is that of a corporate action, not that of exercising that action in any special business. The individual members might carry express packages all their lives, or they might form a partnership and do the same thing till a partner died; and in each ease they would be exercising commondaw rights simply. But when, by virtue of statute law, they assume perpetual succession, the right to hold real estate in the name of their president, and the other privileges which have been above noticed, they then have organized themselves into a corporate body, a corporation. The constitutionality of the act under the State Constitution we supposed to be settled. As to the Hnited States Constitution, it is to be observed that by stipulation the only question to be argued is whether the relator is taxable for the tax. Tlie mode of computation, therefore, is not in question. (See, also, Western Union Telegraph Company v. Massachusetts, 125 U. S., 530.) The case of the Home Insurance Company v. New York (119 U. S., 129) affirmed the same case in this State, holding this tax to be on franchise. (See, also, Hamilton Company v. Massachusetts, 13 U. S., 633.) The question is suggested whether this tax interferes with inter-state commerce. This subject has been so fully discussed in the Supreme Court of the United States that it cannot be profitable for us to do more than to state the conclusion that we think this tax does not so interfere with commerce between the States as to he unconstitutional. (Delaware Railroad Tax, 85 U. S. [18 Wall.], 206.)

The application of the relator to set aside the proceedings of the comptroller is denied, and his proceedings and determination affirmed, with fifty dollars costs and disbursements.

Landon, J., concurred; Ingalls, J., dissented.

Application to set aside proceedings of comptroller denied and proceedings and determination affirmed, with fifty dollars costs and disbursements.


author: By the Court .

text:
    WILLIAM H. MAGILTON and WILLIAM H. HOLLISTER, Executors of the Will of OSMER HOLLISTER, Deceased, Appellants, v. MARY A HOLBERT and Others, Respondents.

      Mortgage — right of the holder of a second mortgage to collect, on a foreclosure thereof, interest paid, by him upon the jm'st mortgage — he is not entitled to an assignment of any sha/re of the jw'st mortgage.

    Where the holder of a second mortgage, in order to protect his own security, pays the interest due upon the first mortgage, he is not entitled, under such circumstances, to an assignment of any share of the first mortgage.

      Semble, that he may “tack” the amount thus paid to the amount secured by said second mortgage, and if there be no intervening equity, may recover such amount upon a foreclosure thereof, and may do the same as to any costs paid by him under the foreclosure of the first mortgage.
    Appeal by the plaintiffs from an order made at a Special Term of the Supreme Court, held at chambers, in Oatskill, on the 22d day of February, 1889, and entered in the office of the clerk of Greene county, denying aanotion, made by the defendants —that the plaintiffs he directed to execute an assignment of a mortgage, to foreclose which the action was brought, and the accompanying bond to the defendants Lampman and Werner, and that the plaintiffs, or their attorney, sign a consent, substituting said Lampman and Werner as plaintiffs in this action ■— so far as said motion sought an assignment of the principal of the mortgage not yet due and payable, but granting said motion so far as the same related to the assignment to and substitution of Lampman and Werner to the rights of the plaintiffs, sought by this action of foreclosure to be enforced in respect to the amount of interest then past due on said mortgage.
    The action was brought for the foreclosure of a mortgage given by Mary A. Hollister, in April, 1886, upon property in which her mother, Margaret Brown, one of the defendants, had a dower interest. In May, 1888, Margaret Brown became the owner in fee of the mortgaged property, and thereafter she executed two mortgages thereon to the defendants Lampman and Werner, respectively. The amount claimed by the plaintiffs to be due and payable upon the bond and mortgage, to foreclose which this action was brought, was the interest thereon from April 1, 1888, to October 1, 1888, amounting to the sum of $125.
    The defendants Lampman and Werner, desiring to protect their respective interests as subsequent incumbrancers, offered to pay to the plaintiff, and tendered the amount due, and to become due, for principal, interest and costs m this action, upon the mortgage referred to m the complaint herein, and requested an assignment of such mortgage, and the bond accompanying it, and that they be subrogated to the rights of the plaintiffs in this action.

      John A. Griswold, for the appellants.

      Jacob 1. Warner, for the respondents.
   By the Court .

When a second mortagee pays the interest of the first mortgage, in order to protect Ins own security, we suppose he may “tack” the amount thus paid to his own mortgage, whenever he forecloses, if there be no intervening equity. So, probably, he may do as to any costs of tbe foreclosure of tbe first mortgage necessarily paid by him. But be is not entitled to bave an assignment of any share of the first mortgage. Because if be were thus to become an owner in common with tbe first mortgagee, tbe security of tbe first mortgagee would be diminished. Tbe rights of the second mortgagee will be sufficiently protected whenever he shall be compelled to foreclose bis own mortgage, by proof that be has necessarily paid these moneys to protect his security.

Tbe part of tbe order appealed from should be reversed, with ten dollars costs and printing disbursements.

Landon and Ingalls, JJ., concurred.

Tbe part of tbe order appealed from reversed, with ten dollars costs and printing disbursements.


author: Landon, J.:

text:
    THE PEOPLE ex rel. PATRICK VAUGHN and Another, Appellants, v. THE BOARD OF SUPERVISORS OF RENSSELAER COUNTY, Respondents.

      Oommittee of board of supervisors — authority to make contracts for county work.

    In proceedings to compel by mandamus the audit of the amount due under an alleged contract, signed by the chairman of a committee of the board of supervisors of Rensselaer county, in which the bo'ard of supervisors was recited to be the contracting party, it appeared that the committee was authorized by the board to advertise for sealed proposals for certain work, including the work in question, to be let to the lowest responsible bidder; that the committee advertised for proposals, and the relators were the lowest bidders thereunder, and the contract for the work, the grading and building fences on the court-house grounds, was thereupon made with them by the chairman of the committee. After the contract was let a resolution was offered in the board of supervisors reciting that such advertisement for proposals had been made and contracts had been awarded thereunder, but it did not appear what action had been taken by the board upon the resolution.
    The contract was repudiated by the next board of supervisors, which audited the claim of the relators at about one-half the price fixed by the contract for the services rendered.

      Held, that as the resolution appointing the committee did not authorize the making of the contract, and as it did not appear what action had been taken by the board upon the subsequent resolution reciting that the contract was made, that the contract was invalid and tlie relators were not entitled to a mandamus to compel payment thereunder.

      Semble, that, in so far as a board of supervisors exercises governmental functions, such as the imposition of a tax or the adoption or the ordering of any act in the nature of a governmental or administrative regulation, the whole body must act; but, in so far as it acts as a mere business corporation, it may delegate the execution of its mechanical and physical work to agents in the same manner as any other corporation.
    Appeal from a judgment in favor of the defendants, entered in the Rensselaer county clerk’s office June 22, 1888, upon the trial at the Rensselaer Circuit before the court and jury, of the issue joined by the return of the defendants to an alternative writ of mandamus.

    At the close of the relator’s evidence the court dismissed the writ. The relators had presented a bill to the defendants for audit for - building 1,116 feet of fence, at two dollars and ninety-five cents per foot, claiming to have built it under a contract with the defendants at that price. The defendants audited the claim, at one dollar and fifty cents per foot.

      James Lansing, for the appellants.

      E. L. Fursmcm, for the respondents.
   Landon, J.:

The trial court found, in substance, that the relators had no valid contract with the board of supervisors under which they sought an audit at the alleged contract-price, and now seek by mandamus to compel such an audit. The relators did have a contract signed by the chairman of the committee of the board of supervisors on lands and buildings, in which the board is recited as the contracting party. An examination of the authority vested by the board in this committee shows that it was limited to authority “ to ^advertise for sealed proposals ” for certain work “ to be let to the lowest responsible bidder, the building committee, together with the architect, to furnish the necessary plans and specifications.” The building committee was also instructed “ to include in their proposals for work at the county-house the building of necessary fences.” The architect made plans and specifications for these fences and left them with the committee. The committee advertised for proposals. The relators submitted to the committee proposals for building the fences at the county-house. The committee received other proposals. They compared them and found the relators to be the lowest bidders, and, thereupon, the chairman made the contract with them, under which they performed the work and furnished the materials. After the contract was let a supervisor offered a resolution in the board, preceded by a preamble, reciting that “the building committee of this board have, by direction of the board, gone on, advertised for proposals and awarded contracts for certain work of grading, building fences, etc., on the county farm, to certain contractors, and such contractors have commenced such work and nearly completed the same,” the resolution directing the borrowing of money to pay for the work. The preamble and resolution were offered to show notice to the board. What action was taken by the board upon the resolution was not offered to be shown. The contract-price was two dollars and ninty-five cents per lineal foot. A subsequent board of supervisors repudiated the contract as unauthorized and excessive, and audited the claim of the relators at one dollar and fifty cents per lineal foot. The building committee consisted of three persons. Mr. Burke was the chairman. Mr. De Freest, one of the committee, said he would sign it, but fdid not do so. The other members did not attend any meeting of the committee in connection with the award of the contract to the relators.

It is contended by the defendant that the board of supervisors could not delegate to a committee the power to approve the plans, details and price of the work, including the making of the contract for building the fence. It is not easy to draw the exact line between those duties which are, by the statute, committed to the judgment and discretion of the entire board, and whose performance, therefore, cannot be delegated to a committee or agent, and those purely ministerial and executive duties which the board may delegate to a committee, or even to an employee or servant. Thompson v. Schermerhorn (6 N. Y., 92), and Birdsall v. Clark (73 id., 73), show that acts which embrace the plan of a local improvement, to result in a tax paid by the owners of property along the line of the improvement, cannot be delegated. Edwards v. City of Watertown (24 Hun, 428) is to the effect that a common council may authorize a committee to buy the necessary furniture for its chamber.

I incline to the opinion that, in so far as such a body exercises governmental functions, such as the imposition of a tax or the adoption or ordering of any act in the nature of a governmental or administrative regulation, the whole body must act; but, in so far as it is a mere business corporation, it may delegate the execution of its mechanical and physical work to agents, like any other corporation. I should think the building of a board fence around a farm lot such a piece of business. But it is not necessary to decide this question, for the reason that in this case the committee on lands and buildings were not authorized to enter into any contract. They were authorized to take all the steps preliminary to the execution of the contract, and no more. The preamble accompanying a resolution, which was subsequently offered in the board, falls short of a ratification of the action of the committee, because no action upon the resolution is shown, and hence no ratification is shown. Failure to show what was done with the resolution is a failure to show ratification. The board did something or nothing, and we are not advised which.

The relators, not having a valid contract, are not entitled to a mandamus to compel an audit upon the basis of a contract-price. All they could ask was that the board should audit their bill at what their work was reasonably worth. This the board did, and that audit is a final judgment between the relators and the board, and conclusive because rendered upon the only right the relators could establish. (Osterhoudt v. Rigney, 98 N. Y., 222, 232.)

The judgment is affirmed, with costs.

Learned, P. J., and Ingalls, J., concurred.

Judgment affirmed, with costs.


author: Landon, J.: •

text:
    HENRY FARMILO and MARTIN SMITH, Appellants, v. MATILDA M. STILES, Respondent.

      Mechanic's lien — for work done on a wife’s property by direction of her husband— submission to the jury of the question whether the husband acted as her agent or under a contract with her.

    In an action, brought to foreclose a mechanic’s lien, the defendant, the owner of the premises, testified that she entered into an oral contract with her husband by which she was to pay him $8,000 for constructing the house in question; that she paid him, prior to the filing of the notice of lien, the whole of such amount, except the sum of $290, which she applied upon an indebtedness owing by him to her. She further testified that she had several lots and buildings; that her husband had none; that she never had occasion to employ anybody, except her husband, to do any work on any of her buildings; that she left that to her husband to look after.

      Meld, that, under the circumstances of this case, the court should have allowed the case to go to the jury upon the question whether the husband did not act as the agent of his wife.
    Appeal by tbe plaintiffs from a judgment of nonsuit, rendered at tbe Albany Circuit, after a trial before tbe court and a jury, wliicb judgment was entered in tbe office of tbe clerk of Albany county on tbe 'Ttli day of February, 1889.
    Tbe action was brought to foreclose a mechanic's lien. Tbe plaintiffs were nonsuited at tbe close of tbe evidence. William Y. Stiles, husband of tbe defendant, made a contract with tbe plaintiffs to do tbe mason work upon a bouse wliicb be stated that be was about to build upon a lot in Cohoes, which be represented belonged to himself. Tbe plaintiffs did tbe work, and upon its completion a balance of $218 remaining unpaid, they filed a notice of ben for the amount against tbe defendant, who was tbe owner of tbe bouse. Tbe defendant testified that she made an oral contract with lier husband, William Y. Stiles, to build tbe bouse for $3,000, wliicb she paid him in-full before tbe plaintiffs filed their notice of lien. Tbe trial court nonsuited tbe plaintiffs upon the ground that their contract was with tbe husband and tbe notice of lien was against tbe wife; also, because the wife bad fully paid her husband before notice of tbe ben. Tbe plaintiffs asked to go to tbe jury upon tbe question whether tbe husband at the time be made the contract was not acting as tbe agent of his wife. This was refused.

      H. A. Strong, for the appellants.

      J. F. Crawford, for the respondent.
   Landon, J.: •

The contract was in the name of the husband, but as the wife was the undisclosed owner, if the husband was, in fact, acting as the agent of his wife, it was competent for the plaintiffs to file their notice of lien and proceed against her. "We think the request of the plaintiffs to go to the jury upon the question whether the husband did not act as the agent of his wife should have been granted. The testimony of the wife is to the effect that her husband procured this house to be built for her, and at her request, and that she furnished him from time to time with money to pay for it as the work progressed. The only difficulty with the case arises from her testimony that she made a contract with her husband that he should build it for the sum of $3,000, and that the money she paid him was upon the contract, except the sum of $290, which she had previously lent him, and she applied this indebtedness to complete the total payment. The contract, she says, was oral. She further testified that she had several lots and buildings in Cohoes; that her husband had none; that she never had occasion to employ anybody, except her husband, to do any work on any of her buildings, that she left that to her husband to look after.

Now, this secret contract between herself and her husband, by means of which she could collect the old debt her husband owed her and deprive the plaintiffs of their just pay, does not commend itself to judicial favor. Possibly it was an afterthought. The testimony upon which it rests ought to be subjected to that scrutiny which her interest and her advantage suggest, and if so, possibly the jury would make a finding upon it in accord with substantial justice.

The judgment is reversed, new trial granted, costs to abide event.

Learned, P. J., and Ingalls, J., concurred.

Judgment reversed,, new trial granted, costs to abide event.


text:
    GEORGE BARKLEY, Appellant, v. DUDLEY OLCOTT, J. HOWARD KING and ABRAHAM VAN VECHTEN, Respondents.

      Principal and agent — exclusive authority to sell real estate at a fixed sum — offer of the property by the principal at a less price — what must be shown to justify a recovery of commissions by the agent — estoppel.

    The plaintiff’s assignor on December 12, 1887, was given by the defendants, the owners of certain iron furnaces, the exclusive privilege for six months, unless previously revoked by a notice of thirty days, to sell such furnaces for $125,000, upon a commission of $5,000. He did not effect a sale, but brought an action to recover his commission, alleging that the defendants, by offering the property for sale for $100,000, had “broken the market” upon him and thus deprived him of the opportunity to earn his commission:

      Held, that it rested upon the plaintiff to show that there was a market for the property, and that it could have been sold, and that his ability to sell the property was affected by the alleged offer thereof by the defendants at a lower price.
    The plaintiff’s assignor wrote to the defendants, stating that his only offer at that date was one from Messrs. Weed, Clark & Weston, who would like to lease for six months with the privilege to buy, and saying, further, “So I leave this matter in your hands now. I have brought it to a focus and leave you to arrange with Mr. G. B. Clark, 52 Wall street, New York, and know, if it goes through, you will pay me what is right for commission, etc.; and if it does not go through, and you sell elsewhere, you will then send me a check for my time, trouble and expenses up to date.”

      Held, that the defendants were entitled to act upon this letter, and to assume that the transaction stated therein was the final one respecting the sale of the property by the plaintiff’s assignor, and that he left its further charge in their hands, and in case of its failure permitted them to sell the property elsewhere.
    Appeal by tbe plaintiff from a judgment dismissing tbe plaintiff’s complaint on tbe merits, entered upon tbe verdict of a jury at tbe Albany Circuit, rendered by direction of tbe court in favor of tbe defendants, wbicb judgment was entered in the office of tbe clerk of tbe county of Albany on tbe 28th day of December, 1888.
    Tbe action was brought to recover damages arising from tbe alleged breach by tbe defendants of an agreement in writing, under date of December 12, 1887, by wbicb Austin G. Gorliam, tbe assignor of tbe plaintiff, was given tbe exclusive authority to sell certain blast furnaces on tbe island south of tbe city of Albany, and was to receive $5,000 in case be effected a sale. Tbe instrument of authority provided as follows: “ You are hereby authorized by the undersigned, purchasers and owners of the works and plant * * * and are hereby given exclusive authority to sell the said works and plant (formerly of the Albany City Iron Company) for the sum of one hundred and twenty-five thousand dollars ($125,000). This authority is to continue in force for six months, unless previously revoked, and is only to be revoked before the expiration of said time by a notice of thirty days of an intention and desire to revoke and terminate this authority, to be personally served on you.”
    On April 3, 1888, a letter was written by Austin G. Gorham to the defendants, as follows:
    “ Gentlemen. — My only offer at this writing is one from Messrs. Weed, Clark & Weston, trustees for the Hudson Ore and Iron Company at Burden Station, N. Y, who would like to lease for six months, with privilege to buy. I believe that if you lease to them, as they suggest, they probably would buy. They say they will not buy without leasing first. They will probably pay fifty cents a ton lease on the output of furnaces during time of lease. I must go to Denver at 1.15 p. m. to-day to attend a stockholders’ meeting there on Saturday, so I leave this matter in your hands now. I have brought it to a focus, and leave you to arrange with Mr. G. B. Clark, 52 Wall street, New York, and know, if it goes through, you will pay me what is right for commissions, etc., and if it does not go through and you sell elsewhere, you will then send me check for my time, trouble and expenses up to date.”
    It was claimed by the plaintiff that the defendants, during the period of time for which he had the exclusive authority to sell the works and plant above mentioned,' offered the same for $100,000, and thus “ broke the market ” upon him.

      George JB. Wellington, for the appellant.

      Ma/rcus T. Hun, for the respondents.
   Landon, J.:

Gorham, the plaintiff’s assignor, had a contract with the defendants, whereby he was given the exclusive privilege for six months from December 12,1881, subject to be revoked by a notice of thirty days, to sell a certain iron-making establishment of the defendants for $125,000, upon a commission of $5,000. He did not effect any sale, but brings this action to recover his commission, alleging that the defendants by their action “ broke the market ” and thus deprived him of the opportunity to earn his commission. The trial court, at the close of the case, directed a verdict for the defendants.

The testimony, taken in the favorable light in which plaintiff’s counsel states it, is that about March 20, 1888, a committee of three persons proposed to Gorham to hire the property for six months, with a right to buy it at $125,000 at the end of that period. What the conversation between Gorham and this committee was, does not appeal, but Gorham testifies that he then went to the defendant King and stated to him, in the presence of the other defendants, that the committee had told him that they had been offered the property at $100,000, and that Mr. King admitted that he had told a gentleman in New York, a Mr. Mould, that the property was in Mr. Gorham’s hands for sale at $125,000, but that the defendants would accept $100,000 for it. Mr. King denied this conversation, but admitted he had said to Mould that he would be glad if a purchaser could be found at $100,000. Gorham testified that the offer to sell at $100,000 ruined the market at $125,000.

It does not otherwise appear that there was any market of the property at $125,000, or even at $100,000. The nearest approach to a market at $125,000, shown by the evidence, was the proposed option of the committee, to be determined after the experimental lease of six months. No one testified that the committee had said that the property had been offered to them at $100,000, or that if they made the statement they had any foundation for it, or that the remark of Mr. King had reached them. There is no evidence that the conversation between Mr. King and Mr. Mould ever reached the market or any intending purchaser. Before a jury would be justified in finding that such a remark prejudiced Mr. Gorham, there ought to be some evidence tending to show that he probably had or could have found a market at $125,000, and that . the remark reached it.

We may concede that such a remark, if not contradicted, would ruin the market at $125,000, but a jury ought not to find that there was a market thus ruined, in the absence of evidence tending to show it, and in the presence of evidence, which the case affords, tending strongly to show that there was no such market. The result of the conversation between Gorham and the defendants in March was, that on March 23, 1888, Gorham had solicited and obtained the right for ten days to sell the property for $100,000. On the 3d of April, 1888, he wrote the defendants, “ my only offer at this writing is one from Messrs. Weed, Clark & Weston” (the committee above mentioned), “ who would like to lease for six months, with privilege to buy, * * * they will not buy without leasing first.” The letter then stated that he was obliged to leave for Denver, and added : u. So I leave this matter in your hands now; I have brought it to a focus and leave you to arrange with Mr. B. G. Clark, 52 Wall street, N. .Y-, and know that if it goes through you will pay me what is right for commissions, etc., and if it does not go through, and you sell elsewhere, you will send me check for my time, trouble and expenses to date.” No arrangement was completed with this committee, and the defendants on April V, 1888, sent a formal notice to the plaintiff terminating his authority, and gave authority to Mr. Mould to sell the property at $100,000, subject to Mr. Gorham’s rights if he had any.

The defendants certainly had the right to act upon Mr. Gorham’s letter of April third, and to assume that the transaction he was negotiating was his final one respecting the sale of the property, and that he left its further charge in their hands, and in case of its failure permitted them to sell the property elsewhere. The net result is' that Mr. Gorham failed to market the property and has failed to show that he did so through the fault or misconduct of the defendants. It does not appear that the property has since been sold, and, therefore, no case is presented in which the defendants have, in any way, been benefited by Gorham’s efforts. We think that in no reasonable aspect of the case would the jury have been justified in finding for the plaintiff.

Ingalls, J., concurred; Learned, P. J., not acting.

Judgment affirmed, with costs.