text:
    The Farmers' Loan and Trust Company, Plaintiffs and Respondents, v. The Mayor, &c., of New York, Appellants.
    1. The hiring of a pier by the Mayor, Aldermen and Commonalty of the City of New York, for the purpose of removing oifal from the city, is a transaction not affected by the provisions of §. 12, of chap. 217, of the Laws of 1853. (P. 412.) The use of the pier hired for such a purpose, and used accordingly, is not work done, nor a supply furnished within the meaning of that section.

      2. Neither the Mayor nor the Comptroller of said city, has the power, as such officer,' to hire property for such a purpose, so as to render the city corporation liable to pay for such use.
    3. Where it appeared that a pier belonging to a third person (the plaintiffs) had been taken and used for such a purpose, from the 8th of July, 1851, to the 29th of May, 1854, by the direction of the Mayor and City Inspector of said city; and that the owners of the pier remonstrated with the Mayor, and he replied “that he had ordered the boats to go there, and he would keep a police force to prevent her being driven away; and furthermore, that we,” (the plaintiffs,) “ should be paid for the use of our property;” and that the Comptroller had paid to the plaintiffs at one time, by a warrant drawn on the Chamberlain of the city, for such use of the pier up to July 8, 1853, at the rate of $1,200 a year; and that in April, 1852, the city, by its City Inspector, (lie being thereto authorized by an ordinance or resolution adopted April 17, 1852,) made a valid contract with one Reynolds for the removal by him of offal from the city, and therein agreed “to set apart two of the docks and slips of the city of New York, one on the East river and one on the North river, to be used by Reynolds, under the direction of the City Inspector, as a place of landing for the boats required by him for removal of substances mentioned in said contract;” and that Reynolds used such pier as a place of landing for such boats until May 29,1854, with the knowledge of the said Mayor and City Inspector; and that such use •was made in removing offensive substances from the city, under the direction of the City Inspector, under the said ordinance authorizing him to bo contract with said Reynolds, and that such use existed before and at the time such ordinance was passed and contract made; it was held, in an action against the defendants to recover for the use of such pier from July 8, 1853, to May 29th, 1854;
    4. First, That such facts did not constitute prima facie evidence that the corporation had hired such pier, by a contract to that effect, made by any of its officers authorized to contract for it in that behalf.
    5. Second, That they did not furnish prima facie evidence of a ratification by defendants, of any unauthorized contract of hiring made by its agents in its behalf.
    6. Third, That the City Inspector had no power to designate the piers which Reynolds was to use under his contract. The corporation, by their contract, only contracted to designate two of the piers actually owned by the city.
    7. Fourth, That the defendants were not hable for the use made by Reynolds of the plaintiffs’ pier.
    (Before Bosworth, Ch. J., and Hoffman, J.)
    Heard, November 8, 1858;
    decided, January 29th, 1859.
    This is an appeal by the defendants from a judgment entered against them, upon the report of Henry Nicoll, Esq., as referee.

      The complaint is as follows: (Title.)
    “ The complaint of the above named plaintiffs respectfully shows unto this court, that the above named defendants are now justly indebted unto the said plaintiffs in the sum of one thousand and seventy dollars, with interest, for the use and occupation by the said defendants of a certain pier or wharf of the said plaintiff’s, situate on the East river, between Thirty-Fourth and Thirty-Fifth streets, in the city of New York, which said pier was occupied, possessed, and enjoyed by the sufferance and permission of the said plaintiffs, for a long space of time since elapsed, that is to say, from the eighth day of July, 1853, until the twenty-ninth day of May, 1854, and for which said use and occupation, they, the said defendants, undertook and faithfully promised the said plaintiffs to pay them so much money therefor, as they therefor reasonably deserved to have of the said defendants, when the said defendants should thereunto be requested ; and the said plaintiffs say, that they therefor reasonably deserved to have of the said defendants the sum of one thousand and seventy dollars, of which the said defendants'had notice; and although often requested, they have hitherto refused, and still do neglect and refuse to pay the said sum of money to the said plaintiffs.
    “ Wherefore the said plaintiffs demand judgment in this action against the said defendants for the said sum of one thousand and seventy dollars, with interest from the twenty-ninth day of May, 1854, besides costs.”
    The answer is merely a general denial of each and every allegation contained in the complaint.
    The finding of the referee is as follows:
    I. That on the 30th day of May, 1849, an ordinance, entitled, “An Ordinance organizing the Departments of the Municipal Government of the City of New York, and prescribing their powers and duties,” was passed by the defendants in Common Council convened, and approved by the Mayor.
    II. That said ordinance was in existence and'in force on the 8th day of July, 1851.
    III. That by said ordinance there is established a City Inspector’s Department as one of the Departments of the said Municipal Government, the chief officer of which department is denominated the City Inspector, who is required by said ordinance to take all necessary measures to ascertain every nuisance and cause it to be removed, and also to cause all putrid beef, dead animals, and every other putrid and offensive substance found in any street or other place in the city, to be forthwith removed and cast into the river from the nearest wharf, or otherwise disposed of so as most effectually to secure the public health.
    IY. That in the month of July, 1851, one William B. Reynolds was engaged in the business of removing offensive substances in the city of New York, under the direction of the City-In speetor of the defendants.
    Y. That said Reynolds for that purpose had certain boats required and used in cariying off the said substances from said city.
    YI. That the said Reynolds on or about the 8th day of July, 1851, by the direction of the Mayor of the City of New York, and of the said City Inspector, and against the wishes of plaintiffs, took forcible possession of the pier or wharf belonging to the plaintiffs in the complaint mentioned.
    YII. That the said Reynolds used the same as a place of landing for said boats, and continued so to use the same for such purpose, under the direction of the City Inspector, and against the remonstrances of the plaintiffs, from the 8th day of July, 1851, to and including the time of making the contract hereafter mentioned.
    YIII. That the said defendants, in May, 1852, in Common Council convened, passed a resolution, approved by the Mayor of said city, on the 17th day of April, 1852, empowering the said City Inspector to contract with said Reynolds, for the removal of dead animals and other offensive substances beyond the limits of the city of New York, under the immediate direction of the City Inspector for a term of five years.
    IX. That in conformity with said resolution, said defendants, by A. W. White, then the City Inspector of the defendants, on the 24th of April, 1852, made a contract with Reynolds, which is the contract set forth in the case herein.
    X. That said defendants agreed by said contract to set apart two of the docks and slips of the city of New York, one on the East river and the other on the Eorth river, to be used by Reynolds, under the direction of the City Inspector, as a place of landing for the boats required by him for removal of substances mentioned in said contract.
    XI. That said Reynolds used and occupied the wharf or pier of the plaintiffs as a place of landing for the boats required for the purposes aforesaid, and, after the making of the said contract, continued to use and occupy the same until May 29th, 1854.
    XTT That such use and occupation by the said Reynolds were with the knowledge of the Mayor and City Inspector of the defendants, and such use and occupation having been also in the business of removing offensive substances in the city of Eew York, under the direction of the said City Inspector under the ordinance aforesaid, and for no other purpose, and said use and occupation continuing and existing at the time of the making of the aforesaid resolution by the defendants in Common Council convened, in May, 1852, as well as at the time of making the aforesaid contract with said Reynolds, in pursuance of said resolution, and thenceforth up to the 29 th day of May, 1854, such facts are sufficient evidence that said use and occupation was with the knowledge of the defendants, and the referee therefore finds the facts so to be.
    XIII. That for the use and occupation of said pier from the 8th day of July, 1853, until the 29th day of May, 1854, the plaintiffs reasonably deserve to have $1,070, of which the defendants, on said last mentioned day, had notice.
    XIV. That the defendants, although requested to pay the same, have refused to pay said sum to plaintiffs.
    The referee found the following conclusions of law:
    I. That the evidence aforesaid was and is sufficient to sustain the finding of fact, that the use and occupation aforesaid was with the knowledge of the defendants.
    To which said conclusion of law and decision of the said referee the defendants duly excepted. '
    II. That the defendants are indebted to the plaintiff for the use and occupation of the pier aforesaid, from the 8th day of July, 1853, to the 29th day of May, 1854, in the sum of $1,070, with interest from the 29th of May, 1854.

      To which said conclusion of law and decision of said referee the defendants duly excepted.
    TIT. That the plaintiffs are entitled to judgment for the aggregate of said amount of $1,070 and interest as aforesaid, being $1,356.50.
    To which said conclusion of law and decision of said referee the defendants duly excepted.
    It appeared, also, in evidence, that the boats employed to remove the offal, termed by a witness, (the President of the plaintiffs,) “ nuisance boats,” were at the pier from July 8, 1851, until May, 1854; and that he, the witness, collected from the Comptroller of the City two years’ rent, viz.: From July, 1851, to July 8, 1853. The amounts paid were at the rate of $1,200 a year. The President was informed by the Mayor of the City, (on remonstrating with him for taking possession of the pier,) that he would keep a police force., to prevent the boats being driven away, and that the plaintiffs should be paid for the use of the property.
    The ordinance of the 17th of April, 1852, was, by consent, read in evidence, and the first, second, and fifth sections, all that are deemed material, are as follows:
    “ § 1. There shall be designated and set apart, for the use of the City Inspector, two of the docks and slips of the city of New York, one on the Eastriver, and the other on the North river; said docks and slips shall be under the sole authorized direction of the City Inspector; and shall be used by him as a place of landing for such boats as may be required for the removal of the butcher’s blood,” offals, &c., from the city.
    § 2. No ship or vessel shall come in or lie at any of said docks or slips, designated as aforesaid,, without permission of the City Inspector. By section four, the City Inspector was to give licenses to carts, (to be furnished by contractors for removing offal,) to remove the offal.
    § 5. No dead animal shall be cast or thrown into the East or North rivers, or any waters within the limits of the city; but shall be removed by the persons licensed, as aforesaid, for that purpose, to the docks and slips of the City Inspector.
    Judgment was entered on the report, on the 13th of March, 1858, in favor of the plaintiffs, against the defendants, for the sum of $1,541.31, from which judgment, the present appeal was taken.

      D. E. Sickles, for defendants, the appellants.

      M. S. Bidwell, for the respondents.
    I. It was proved, by competent and sufficient evidence, that the pier was taken possession of and occupied from the beginning under the authority and for the benefit of the defendants.
    1. Reynolds was employed by them, under a contract which has been adjudged to be valid, (People ex rel. v. Flagg, 16 Barb. R., 503,) to remove offal ■ from the city; and the defendants engaged by that contract to furnish him with the use of a pier for that purpose; the pier to be so used was to be set apart and designated “ under the direction of the City Inspector.”
    2. The pier was used by Reynolds, in the execution of the contract, for that purpose.
    3. There was evidence to show it was so occupied with the knowledge and consent, and by the direction and designation, not only of the Mayor, but also of the City Inspector, who was the proper officer and agent of the defendants for that purpose, (Laws of 1849, p. 282, § 16; City Ordinances of May 30, 1849,) and who was'the officer authorized and appointed by the defendants to do this very act.
    4. The defendants did not provide or designate any other pier for the purpose. This fact, in connection with the actual use and occupation of the plaintiffs’ pier by Reynolds, under the direction of the Mayor and City Inspector, furnished at least strong presumptive evidence that the defendants authorized this pier to be taken under their contract with Reynolds.
    5. Eo separate resolution or appropriation was necessary.
    II. Even supposing the taking occupation of the plaintiffs’ pier was originally unauthorized by the defendants, yet the payment of rent by the Comptroller, (the proper disbursing officer of the corporation,) for two years, is evidence of a ratification of the contract by them, and of a hiring on their part from year to year at the rate of $1,200 per annum. (Hayward v. The Pilgrim Soc., 21 Pick. R., 275; Wood v. State, 5 Bos. and Pull., 246, 248; Doe & Carlisle v. Woodman, 8 East., 228.)

      It is to be presumed that this payment was stated m his accounts and report, and was known to the Mayor and Common Council. (1 Cow. and Hill, 296, 297; Best on Presumptions, 68, 31 Law Lib.)
    III. Even supposing the payment of rent by the Comptroller insufficient to bind the defendants, so far as to raise the presumption of a letting from year to year, the plaintiffs are still entitled to recover on a quantum, meruit; no express promise need be shown, and one may bring assumpsit for the use and occupation of his property, though originally taken without his consent. (1 Hill, 240, note A.)
    IV. As to the objection that all work to be done or supplies to be furnished for the corporation, involving an expenditure of - more than two hundred and fifty dollars, must be by contract, &c., (Laws of 1853, chap. 217, p. 412, § 12,) there are several answers.
    1. There was a contract; the defendants contracted to provide
    a dock, &c., and this pier was taken and set apart under that contract. The case is, therefore, within the very letter of the law, and it is clearly within its spirit; the abuse which this law was designed to prevent was guarded against as effectually by this contract, as if a contract had been made with the plaintiffs themselves for this pier. . ,

    2. The law has no application to this case, because,
    1. The action is not brought for “ work done or supplies furnished ” for the corporation, the use and occupation of the plaintiffs’ property not being the one or the other; and as the statute is interposed in support of an objection that is most inequitable, and in derogation of common law and common right, it should be construed literally and strictly, and not extended to a case not within its very words; especially, as in this case, such a construction will not be inconsistent with the great object of it, or countenance the mischief which it was intended to prevent.
    2. The statute has no application to executed contracts; at least it does not apply so far as to defeat a recovery to the extent of the benefit which the defendants have actually received.
    V. By the express contract between the defendants and Reynolds, they were to provide a pier for him.
    If they had not done it, he would have had a right to provide it at the defendants’ expense, and to recover the value of such accommodation from the defendants. If he obtained such accommodation from the plaintiffs, they are entitled either to sue the defendants, on the ground that Reynolds was their agent in using the pier, or upon the principles of equity jurisprudence, to be substituted in his place, and subrogated to his rights, in which case the provisions of his contract will enure to their benefit.
    If, upon the other hand, the defendants did provide a pier for Reynolds, pursuant to their contract, then, as it was no other than the plaintiffs’ pier which they used for that purpose, they cannot deny having used and occupied it; and upon that ground the plaintiffs are entitled to compensation from the defendants.
    So that, quacwnque via data, we come to the conclusion that the plaintiffs were entitled to recover from the defendants a just compensation for the use of their property.
    The judgment should be affirmed with costs.
   By the Court—Hoffman, J.

The first and an important question is, whether the twelfth section of the charter of 185B applies to the case. The question is one of great practical moment beyond the decision of the present action. The counsel of the defendants insists that it controls. The counsel of the plaintiffs has made several points to show that it is inapplicable.

That section provides “ that all work to be done, and all supplies to be furnished for the corporation, involving an expenditure of more than $250 must be by contract founded on sealed bids, or on proposals made in compliance with public notice for the full period of ten days; and all such contracts, when given, shall be given to the lowest bidder, with security.”

In the case of Brady v. The Mayor, &c., of New York, in this court, (2 Bosw., 173, and 7 Abb., 238,) it was held, that where a contract under which work had been done was void, because entered into in violation of this provision of the charter, the contractor could not recover for the work in any form; neither under the contract, nor as upon a quantum meruit. A subsequent ratification was of no more validity than the original contract. If this were allowed, this restriction in the charter would become practically null, and the officers and agents through whom alone the corporation can act, might disregard the statute, and in practice repeal it. The difficulty lies, not merely in the want of original power in the agents to make the contract, but in the want of power in the corporation itself to make the contract, otherwise than in the mode prescribed by the charter.

If then the present case is within the provision, nothing short of an express contract entered into after full.compliance with its directions, could be binding upon the corporation.

It may be, as the learned counsel of the plaintiffs contends, that in the ordinary acceptation of the terms, the hiring of a pier for public purposes was neither “ work done,” nor “ supplies furnished.” Yet an enlarged etymological sense of the word “supply” comprises anything yielded or afforded, to meet a want.

It is clear however, that there must be a class of cases, in which the very object of the exercise of a municipal power, would indicate the inapplicability of the provision. The establishment of a market within a particular district of the city calls for the exercise of a discretion in choosing the locality, so as to meet the convenience of the greater number and facilitate the means of cleansing, which might be wholly defeated or impaired if the corporation was compelled to advertise and take the plot of ground offered by the lowest bidder. The selection of piers for the purpose of casting away the offal of the city, falls within the same principle. It would be a misuse of power, to take for this purpose a pier daily thronged with carts and laborers, for loading or unloading the cargoes of vessels. The particular force and direction of the tide may render one spot far more eligible than another. The distance from dwelling houses would be another element of consideration.

In the case of The People v. Flagg (17 N. Y. R., 584), it was strongly urged by Judge Comstock that the construction of the phrase “ work to be done ” used in this provision, did not extend it to the making of a survey and maps by a surveyor requiring skill and professional knowledge for its performance. “This would be an unreasonable and mischievous construction of the statute.” Justice Roosevelt was of a different opinion on the facts of that case; and the Court abstained from expressing an opinion upon the point.

It appears to me that the principle contained in the opinion of Judge Comstooic applies with even greater force to the cases I have suggested, than to the one before him.

It may perhaps be found upon a more extended investigation of the extent and meaning of the provision, that it does nob apply to cases of the acquisition of real property by purchase or hiring for the purposes of municipal government, within acknowledged powers of the corporation. It may be that the phrase is used in-the sense in which it is employed in the commercial law, and in various statutes, as relating merely to personal property, going into or forming part of something else or contributed for the use of something else, or towards its efficiency. The maritime doctrine as to supplies for ships, the State Statutes in aid of material-men are instances of this nature. (4 Wheat., 438; Kent’s Com., vol. 3, p. 169; 1 Blatch. & Howl., 177; 2 R. S., of 1830, 493; The Calisto, Daveis R., 31.)

It is in this sense that the phrase is used in various enactments connected with the government of Hew York. Thus, in section 13 of the charter as amended in 1849, there is constituted an Executive Department called The Department of “ Repairs and Supplies,” having cognizance of all repairs and supplies of and for roads and avenues, pavements, fire engines, &c.

So in section 14, the department of streets and lamps shall have cognizance of procuring the necessary supplies for, and of lighting the public streets, &o

And section 23 of the same chapter provides, that “ all contracts to be made or let by authority of the Common Council for work to he done or supplies to be furnished," and all sales of personal property shall be made by the appropriate heads of departments, under such regulations as shall be established by ordinances.

All the previous sections establishing departments contemplate expenditures distinct from any acquisition of real estate. Ho such power is any where granted to or is to be inferred as possessed by either of them.

But without pursuing this subject further, or attempting to define either what is comprehended in or what is excluded from the purview of the provision in question, it is sufficient to say, that in our opinion the hiring of a pier by the corporation for the purpose of removing offal from the city, is not within it.

We must, therefore, proceed to the other questions in the cause.

2. The right to hire a pier for the purpose of fulfilling the duty of the corporation in the removal of nuisances, is a power inherent in the Common Council, because necessary or important for the exercise of an admitted and vested • power. The charters gave the corporation power to hold land in fee simple to them and their successors forever; but a restriction was imposed in the Montgomery Charter, that the annual income should not exceed £3,000 sterling. (See upon the subject of this restriction, Kent’s Notes, note 48; 2 Coke’s Inst., 722, and Flagg v. Lowber, 7 Abb. R., 176.)

Whatever may be the legal operation of this restriction at the present day, it was a restriction upon the right to hold lands in perpetuity, which right, upon common law principles belongs to a corporation. (2 Kent’s Com., 281.) It does not affect the present question, which relates to a power to hire lands for a particular period, in order to fulfill a duty, and in the exercise of a power necessary, for municipal purposes. That authority which is material in order to execute the purposes for which a corporation is created, is possessed by implication. (1 R. S., 1830, 600, § 3; 4 Hill, p. 39, 13 Mass. R., 199.)

The late case of The People and Flagg v. Lowber (7 Abb. R., 176), illustrates this view. The power to purchase land for a market site was held to attend and result from a power to establish markets, and the restriction as to income before referred to, was held inapplicable.

3. Whether the Common Council have lawfully done anything out of which its liability for the rent can arise is in the next place to be examined.

As I understand the claim, it is rested upon these several propositions : First. That the Comptroller could create this liability, and has done so; next, that the Mayor could do it, and his engagement is proven; again, that there was an implied ratification of the payment by the Comptroller, from the assumed knowledge of his disbursements, and therefore a hiring by the Common Council; and lastly, that the resolution of April 17th, 1852, and the contract with Reynolds, establish the responsibility.

The two first propositions may easily be disposed of. There is not the semblance of power in the Comptroller or Mayor, to hire property for the purposes in question, and bind the corporation to pay for it.

The next ground, of an implied ratification, is also unsatisfactory. It could not, I think, extend further than to prevent the corporation from recovering back the money paid over, admitting that this would be its effect.

The ordinance of May, 1849, gave to the City Inspector power to remove dead animals, &c., and to cast them into the river, three hundred feet from the nearest wharf, or otherwise to dispose of them as most effectually to secure the public health. The first clause of the ordinance may, perhaps, be so reasonable as that the Inspector would be warranted in going upon a private pier, merely to cast the carcasses into the river. But there is nothing in it to warrant the hiring of any pier or wharf for any of his official purposes.

The possession of the pier taken by Reynolds, under the direction of the City Inspector and Mayor, in July, 1851, was forcible. It did not profess to be in the exercise of a power to contract; and there was no such power in either of them.

The contract with Reynolds, of the 24th of April, 1852, was valid, and has been decided to be so. (16 Barb., 503.) By that contract, the corporation, by A. W. White, City Inspector, agreed, “in pursuance of the first section of an ordinance of the 17th of April, 1852, to designate and set apart for the use of the City Inspector, two of the docks and slips of the city of New York, one on the East river, and the other on the North river, to be used by Reynolds, under the direction of the City Inspector, as a place of landing of the boats lo be employed for the removal of the offal, dead animals, &c., the free access to and use thereof, to be secured to said Reynolds.

The first section of the ordinance does not contain any power for any officer to hire a pier. It provides that there shall be designated two docks or slips of the city, for the use of the City Inspector, to be under his control, and to be used by him as a place of landing for the boats required.

I have concluded that the corporation, in this ordinance, did nothing more than to agree to designate two of the piers actually owned by the city, to be used for these purposes; and that the liberal construction insisted upon, that they covenanted to designate one of their own piers, or to procure a pier of another party, is inadmissible.

Thus it stands, under all these documents, that the corporation was itself to designate a public pier, and. did not even give the City Inspector power to do so; and what is of more importance, a construction cannot be sustained which implies the hiring of a private pier, or the delegation of any power to any one to do so.

Now, it is true, and sustained by eases, some of which were cited, that it is a sound rule of law, that whenever a corporation is acting within the scope of its legitimate purposes, all parol contracts made with its authorized agents are express promises by the corporation; and all duties imposed upon them by law, and all benefits conferred at their request, raise implied promises for which an action may well lie. (Story, Justice, 7 Cranch., 306; Fister v. La Rue, 15 Barb., 323; Randell v. Van Vechten, 19 Johns. R., 60; Clarke v. Guardians of Cuckfield Union, 11 Eng. L. & Eq. R., 442.)

But in all such cases, either a duly authorized agent fixed the liability of the body, or it recognized the obligation to pay, by accepting the work or services or supplies. Where it possesses original power to make the contract, it may recognize a duty to pay for what has been done without contract, although if destitute of such original power the case is different. (The People v. Flagg, 17 N. Y. R., 586.)

In the present case, there was no act which could be treated in any way as tending to a ratification, except the unauthorized payment of rent, by the Comptroller, on some occasions. This is wholly insufficient.

It is impossible, also, to support the proposition, that the mere fact of rendering services to the corporation, and of that body reaping a benefit from them affords a ground of action. (17 N. Y. R., 591.)

These conclusions render it unnecessary to discuss the question, whether as the origin of the possession was the forcible entry upon the plaintiffs’ land, a suit for the value of the occupation, as for rent, can be maintained. The City Inspector and Reynolds, perhaps the Mayor, were, on the facts found, trespassers; could have been turned out, and been made responsible for mesne profits. (1 Wend., 134; 1 R. L., 1813, p. 444, § 31; Smith v. Stewart, 6 Johns., 46; Osgood v. Dewey, 13 id., 240.)

A new trial must be granted, with costs to abide the event.

Ordered accordingly.


source: Caselaw Access Project

author: By the Goübt—Boswobth, Ch. J.

license: Public Domain

text:
    Luigi Gallarati v. John Orser, Sheriff.
    1. When an order is duly made for the arrest of a defendant, in the case prescribed by subdivision three of section 179, of the Code; (a replevin suit) and the Sheriff arrests him under such order, and allows him to go at large, on executing the proper bond, with sureties who fail to justify on being excepted to; and the plaintiff, in such action, recovers judgment for the value of the property, and damages for the detention thereof, with costs; he may maintain an action against such Sheriff, to recover the amount of said judgment, after an execution against the property of such defendant has been issued on said judgment and returned unsatisfied.
    2. It is not essential to the right to maintain such an action, that an execution against the body of such defendant has been issued and returned unsatisfied, nor that a w;rit de retorno habendo has been issued and returned unsatisfied.
    3. Such judgment, although it is not in the alternative form prescribed by section 277 of the Code, is not void, but is valid until reversed or amended.
    4. The statute (Code, § 201,) which provides that, “if, after being arrested, the defendant escape or be rescued, or bail be not given or justified, or a deposit be not made instead thereof, the Sheriff shall himself be liable as bail;” means that the liability of a Sheriff arresting a defendant, where bail does not justify, is the same as that of the bail in that particular case would have been, if they had justified on being excepted to.
    5. When such bail, by the terms of their undertaking, become guarantors of the payment of any judgment that may be recovered, the Sheriff is made guarantor if he discharges the defendant on taking bail, who fail to justify.
    (Before Bosworth, Ch. J., and Hoffman, J.)
    Heard, January 10;
    decided, January 29, 1859.
    This is a motion by the .plaintiff for judgment on a verdict in his favor, taken subject to the opinion of the Court at General Term, on the questions of law arising at the trial.
    In July, 1855, Delachwpelh commenced an action in this Court against Amos B. Thompson, to recover the possession of personal property. The necessary papers, to entitle him to have the property taken and delivered to him, were placed in the hands of he defendant, to be executed, he being then Sheriff of the city and county of New York.
    Not being able to find the property, an order was obtained in that action, on the 28th óf July, 1855, under subdivision three, of section 179, of the Code, requiring Thompson to be arrested, and held to bail in the sum of $800. The defendant, as such Sheriff, arrested Thompson by virtue of said order, and discharged him from custody, on his executing', with two sureties, an'undertaking in the terms prescribed by section 211, of the Code. Such sureties were excepted to, but never justified. Thompson appeared by attorney in that action, but did not put in an answer.
    Delachapelle recovered judgment in that action on the 24th of January, 1856, which judgment recites, that a Sheriff’s jury had assessed the plaintiff’s damages “ at the sum of four hundred dollars, for the value of the property claimed by the plaintiff, and one hundred and fifty dollars for the detention thereof,” and adjudges, “ that Alfred Delachapelle, the plaintiff, recover of Amos R. Thompson, the defendant, the sum of $550, the amount claimed, with $33.87 costs and disbursements, amounting, in the whole, to $583.87."
    An execution, against the property of Thompson, and conforming, in form, to the judgment, was issued on the judgment to the Sheriff, (James C. Willett being then Sheriff of the city and county of New York,) who returned it, and upon it, “ no personal or real property.”
    Delachapelle, on the 26th of January, 1856, assigned to the present plaintiff “the said judgment, and all sum and sums of money that may be had or obtained by means thereof, or on any proceedings to be had thereupon.”
    This action is brought, to recover of the defendant, as such Sheriff, by reason of the premises, the amount of such judgment. It was tried on the 15th of March, 1858, before Mr. Justice Boswoeth, and a jury.
    On the trial, the facts above were proved, and when the plaintiff rested, the defendant moved for a dismissal of the complaint, on the grounds: “ 1st. That the plaintiff had failed to show any right to recover any judgment against the defendant upon his alleged liability as bail. 2d. That no judgment, authorized by law, had been recovered in the case of Delachapelle v. Thompson. 3d. That there had been no judgment for a delivery of the property or any part thereof. 4th. That no execution, in the form prescribed by law, for a delivery of the property, had been issued or returned. The Court denied the motion. The defendant, then and there, duly excepted to the said ruling and decision- of the Court.” The defendant then gave in - evidence an order made by Chief Justice Oaklet, dated October 2, 1855, (in the suit of Delachapelle v. Thompson,) obtained by Thompson, requiring Delachapelle to show cause on the 6th, why Thompson should not be allowed to serve an answer in that action, and also to give notice of the justification of sureties therein, and for other relief, and staying the proceedings on the part of the plaintiff and of the Sheriff, in the meantime, and until the decision of the Court thereon. He, also, proved that the hearing on said order, to show cause, was adjourned, by “consent,” to the -10th, and then until the' 17th, and then until the 23d, and then until the 24th, on which day an order was made by a Judge of the Court, allowing “ Thompson five days to serve his-answer and notice of justification, on payment- of five dollars costs of motion.”
    The Court, against the objection, and an exception thereto by the defendant, allowed the plaintiff to give evidence tending to prove that Bensil, the Deputy Sheriff who arrested Thompson, by virtue of the order holding him to bail, consented to such adjournments before they were made, and that after the expiration of the five days named in the order of the 24th of October, 1855, Bensil was 'requested to re-arrest Thompson, because his bail had not justified. Bensil was examined, and denied that he was requested to re-arrest Thompson, or that he consented to such adjournments.
    When the evidence was closed, the jury, under the direction of the Court, (as the case states,) found a verdict for the plaintiff for the sum of $666.47, “ the amount of the judgment, being for $583.87; interest $80.60, subject to the opinion of the Court at' General Term, -with power to dismiss the complaint, or the Court at General Term to give such judgment, and- for such amount as-the Court may be advised. Case to be then made up as if such decision had been made' at ■ the trial term, and such exceptions then taken 'thereto, as either party may be advised to take, and shall within ten days after notice of decision, be served on the opposite party—both parties agreeing to this disposition of the case." •
    Some further facts, which need not be here repeated, are stated in the opinion- of the Court.

      F. H. B. Bryan, for plaintiff, in moving for judgment on the verdict, made and argued the following points:
    1. The undertaking prescribed by section 211 must be strictly complied with. The execution of the undertaking fixes the character of the parties as bail. (7 How. Pr. R., 214.) The sureties on such undertaking cannot exonerate themselves by surrendering the defendant. (Vide § 188, subd. 2.)
    § 201. Fixes the liability of the Sheriff, if among other things bail be not justified. He can only exonerate himself by the giving and justification of bail as provided by sections 193, 194, 195, and 196.
    The undertaking exacted by section 211, renders the sureties responsible for the return of the property, if the return be adjudged, and for the payment of such sums of money as may for any cause whatever, be recovered against the defendant.
    The condition is broad. The Sheriff became liable to perform the condition, and to satisfy the judgment recovered against the defendant Thompson.
    H. Judgment was recovered against Thompson, January 24, 1856, for the sum of $583.87.
    § 261 of the Code, enacts that when the property has not been delivered to the plaintiff, the jury shall assess the value of the property, &c., and the damages, if claimed in the complaint. *
    The verdict of the jury in this case is proper. It is a general verdict. It assesses the value of the property at $400. The damages of detention at $150. (Archer v. Boudinot, 1 Code R., N. S., 372; Commercial Bank v. White, 3 How., 292.)
    It was unnecessary for the verdict to find that the plaintiff was entitled to a return of the property. There was no answer. The facts alleged in the sworn complaint are admitted.
    The omission to find the plaintiff entitled to a return of the property, is, at best, a mere irregularity, of which the defendant in the action could alone avail himself. It is strictly a question between the plaintiff and the defendant in the action.
    It is not availing to the defendant here who is not a party in interest. (7 How., 449, 457; 1 Cow., R., 309; 4 id., 158; 8 id., 192.)
    As between the plaintiff and defendant, this was an amendable defect. (7 Cow., 29.)

      It is an error or defect not affecting the substantial rights of parties. It will not affect the judgment. (§ 176, Code.)
    It is strictly technical. (4 Comst., 276.)
    III. The execution followed the judgment. The form of the execution prescribed by subdivision 4, section 289 is merely directory.
    The omission of a direction in the execution to take the property could not injure the Sheriff. He had already returned that the property could not be found.-
    In any event, this is a mere irregularity of which the Sheriff cannot avail himself. The execution would be good' until set aside. The Sheriff is neither party nor privy to it, and cannot make the objection. It cannot be examined in a collateral action. (Jones v. Cook, 1 Cow., 309; Bissel v. Kipp, 5 Johns., 100.)
    But it is contended that the prevailing party has a right to elect whether he will take the property or the value as assessed. In the majority of cases, to force the party to take back the property, which might be materially deteriorated, would be a grievance.
    IV. The adjournments of the order to show cause could not in anywise increase the liability of the Sheriff, or change his position on an undertaking given under section 211 of the Code.
    The complaint avers, that notice to the Sheriff of refusal to accept the sureties was served August 8, 1856. This fact is not denied in the answer.
    The order to show cause on which the adjournments were made, is dated October 2, 1856. The Sheriff, before the order was granted, was fixed as bail. Neither the order nor the adjournments could increase his liability.
    The Sheriff could only have exonerated himself by putting in and justifying bail, on the undertaking prescribed by section 211 of the Code. Section 201 provides for his discharge from liability pursuant to sections 193, 194, 195 and 196.
    The current of authorities as to the discharge of bail by indulgence of the principal, only extends to cases where the situation of the bail is materially changed, or his risk increased. (10 Johns. 505; id., 587; 6 Wend., 244, 245. Gr. Pr., 2d. ed., 443.)
    If the judgment or the execution were in any wise irregular, the Sheriff could alone have availed' himself of such irregularity, by applying to set aside the judgment against the principal, as well as the proceedings against himself. (4 East R., 308.)
    He cannot in this action set up the irregularity as a defense.

      A. J. Vanderpoel for the defendants.
    I. The complaint does not contain facts entitling the plaintiff to maintain an action on the Sheriff’s liability as bail.
    1. It is not alleged that an execution had been issued against the person of Thompson.
    This defect is not supplied by the evidence. Thompson has always been within the bailiwick of the Sheriff, and could have been arrested, at any time, under a proper execution.
    As to the sufficiency of the pleadings under the Code. (McKyring v. Bull, 2 Smith, 297.)
    2. The liability of the Sheriff is not fixed, and an action cannot be maintained against him until he is unable to, and fails to, secure the person of the debtor on a proper execution. (Pearsall v. Lawrence, 2 Johns., 514; Shiland v. Cory, 2 Wend., 246.)
    3. The order, in all cases, commands the Sheriff to arrest the defendant, and hold him to bail in the specified sum. The undertaking of the bail varies according to the nature of the action; but if the defendant does not give the bail, then the Sheriff must produce the body when execution issues. To this end, the law has furnished to the Sheriff the means of control of the person.

    4. The two hundred and first section of the Code, declaring the Sheriff’s liability as bail, was not intended to render him liable according to the condition prescribed in section two hundred and eleven, so long as he can produce the body when required. It provides that he shall be liable, in the same manner where “ bail be not given ” as where bail fail to justify. The plaintiff, to recover, must establish the proposition, that when the Sheriff obeys the order, by arresting the party, and retains him in custody pending the action, the plaintiff can, while the defendant is thus imprisoned, sue the Sheriff, and recover fi'om him the delivery of the property, or its value, and all such sums as may be recovered against the defendant.
    5. The last clause of section two hundred and one declares that the Sheriff may relieve himself from liability, by giving and justifying bail, for the custody of the person of the defendant, at any time before process against the person is issued to enforce the judgment, establishing most conclusively (if this section is at all applicable to the action for claim and delivery) that the Sheriff’s liability depends upon his being able to produce the person of the defendant on execution.
    II. The action cannot be maintained against the defendant, on his alleged liability as bail, until a judgment for a return of the property has been recovered in the suit of Delachapelle v. Thompson, The bail are only liable in the case of a judgment for return; this is their undertaking; they are sureties ; nothing else can, so to speak, liquidate their liability. (Code, § 211.) The judgment for the value of the property was wholly unauthorized by the Code. The plaintiff can only take judgment for a return of the property, ■and damages for detention, where a return is awarded. (Code, § 277; Dwight v. Enos, 5 Seld., 475; Fitzhugh v. Wiman, id., 659; vide, Slack v. Heath, 1 Abb., 331.)
    IH. But if there was a judgment for return, the plaintiff must go further, and show that he has issued an execution in conformity" with such judgment, before he can charge bail. It was óf no avail that the plaintiff issued an execution against the property of the defendant; under the first subdivision of section two hundred and eighty-nine, such an execution was void. The kind and form of execution, in the action for claim and delivery, is prescribed in section two hundred and eighty-six, and subdivision four of section two hundred and eighty-nine. The liability of the bail could not be fixed until the issuing and return of the proper execution; as in similar cases before the Code, the condition of the undertaking was not broken until the return of the 'execution.
    1. In most cases the property will be obtained whenever judgment therefor is recovered, and an execution issued which will •authorize the Sheriff to take it.
    2. Under the former practice, it was necessary that a ca. sa. be ■sued out against the principal, and actually returned non est inventus, and filed, before - the plaintiff could proceed to charge the bail. (Pearsall v. Lawrence, 3 Johns., 514; Shiland v. Cory, 2 Wend., 246; Rathbone v. Blatchford, 1 Caines, 588, 592; Cowden v. Pease, 10 Wend., 333, 335.)

      3. The R S. required the plaintiff in replevin to give a bond at the commencement of the action, with a condition substantially like the undertaking of bail in claim and delivery under the Code. In an action upon such a bond, it was necessary to prove the issuing and return of a writ de retorno hábendo. (Cowden v. Pease, 10 Wend., 333; Cowden v. Stanton, 12 id., 120; Gibbs v. Bull, 18 Johns., 435, 440.)
    IY. If the Sheriff became liable as bail, he is entitled to all the rights and protection of a surety, and, therefore, was discharged by the delays which were consented to by the plaintiff. (Heck v. Heath, 1 Abb., 331.)
    Y. The alleged cause of action against the Sheriff did not pass to the plaintiff under the assignment of the judgment. (Commonwealth v. Furqua, 3 Litt., 41; Jones v. Commonwealth, 2 id., 357.)
    The defendant is entitled to judgment.
   By the Goübt—Boswobth, Ch. J.

The judgment in the action of Belachapelle v. Thompson, should have been in form; that the plaintiff recover the possession of the property; or the value thereof as assessed, in cuse a delivery cannot be had; and the damages assessed for the detention thereof' and the costs as adjusted. (Fitzhugh v. Wiman, 5 Seld., 559-562; Dwight v. Enos, id., 475.)

But though not entered in the alternative form, it is not void; it is erroneous merely.

It was entered on the 24th of January, 1856. This action was commenced on the 28th of April, 1856, and the complaint informed the defendant, in what form the judgment had been entered. His answer was verified on the 11th of August, 1856, and it alleges, that the judgment mentioned in said complaint, as having been recovered in said action, is wholly void and of no effect.”

The judgment could not be set aside on motion for irregularity, unless such motion was made within a year after judgment rendered. (2 R. S., 359, § 2; Code, §§ 174, 173.)

More than a year had elapsed between the entry of such judgment and the trial of the present action. The right of the defendant, Thompson, to appeal had elapsed, if notice of the judgment was served at or near the time it was rendered. Neither Thompson nor the Sheriff could have moved, at the time the trial of this action was commenced, (more than a year having elapsed since said judgment was rendered,) to set it aside, as irregular, on motion. It is clearly regular and valid, so far as it relates to the damages assessed for the detention of the property, and the costs of the action. It was erroneous in form, in not adjudging a return of the property, and a recovery of its value only in case a delivery of the property could not be had.

The execution issued, followed and conformed to the judgment. That, therefore, was regular, assuming the judgment to be valid, until reversed or modified. The Sheriff having discharged Thompson from custody, on taking bail, who failed to justify, the question is, what is the nature and extent of the Sheriff’s liability ?

The concluding sentences of section 187 prescribe the terms of the undertaking which it was the duty of the Sheriff to exact, and section 201, bis liability, in case he takes bail who do not justify.

By declaring that “ the Sheriff shall himself be liable as bail,” section 201 must mean, that if the order to arrest and hold to bail makes it his duty to take such bail as is prescribed, when the arrest is made under subdivision 3 of section 179, his liability will be the same as that of such bail would be. His liability is thesame as that of such hail would be (if they had justified), and if a judgment, in such form, had been subsequently entered, as has been actually entered in that cause. Such bail cannot exonerate themselves, by a surrender of their principal. (§ 188, and §§ 187 and 211.)

In cases of an arrest of a defendant, by a Sheriff, by virtue of an order granted under the other subdivisions of section 179 of the Code, the liability of the Sheriff, in case he allo.ws a defendant to go at large, on his giving an undertaking, with sureties, who fail to justify, is the same, as that of such sureties would have been had they justified.

The undertaking, which it was the duty of the Sheriff to take, in the case before us, and the one which he did in fact take, is to the effect, that the persons, executing it “ become bound to the plaintiff in the sum of $800, for the delivery of said property to the plaintiff if such delivery shall be adjudged, and for the payment to him of such sum or sums of money as may, for any cause, be recovered against the defendant in this action.”

The plaintiff in that action, recovered against the defendant therein, a judgment for the sum of $666.47, which is wholy unpaid.

Chapter 2 of title 7 of the Code does not declare when, or on what contingencies, an action may be brought on an undertaking, given under that chapter. (§§ 206-217, inclusive.)

Section 471 of the Code, declares that “the second part of this act” (the Code), “ shall not affect” “ any existing statutory provisions relating to actions, not inconsistent with this act, and in substance applicable to the actions hereby provided."

By 2 Revised Statutes, 523, section 7, subdivision 2, the Sheriff was required to take from a plaintiff in the action of replevin (for which a “ claim and delivery of personal property,” chap. 2, title 7, of the Code is a substitute,) a bond with a condition, in terms, substantially like that of the undertaking required, when a defendant is arrested and held to bail under subdivision 3 of section 179 of the Code. (See §§ 187 and 211 of the Code.)

Section 64, of 2 Revised Statutes, 533, (and Cowden v. Pease, 10 Wend., 333, and Cowdin v. Stanton, 12 Wend., 120, decided under it,) are cited, as establishing the proposition, that no action will lie against the sureties to a bond executed under subdivision 2 of section 7 of 2 Revised Statutes, 523, until a writ de retorno habendo, had been issued and returned unsatisfied.

Section 64 of 2 Revised Statutes, section 533, provides that, “ if any writ of return, or other execution, issued in favor of the defendant in the action, shall be returned unsatisfied, in whole or in part, such defendant, or his representatives, may have an action upon the bond executed by the plaintiff and his sureties to recover the value of the property replevied, and the moneys, damages and costs awarded to such defendants, as the case may be, and such bond may be assigned to such defendant, or his representatives, on their request.”

Cowden v. Pease, (10 Wend., 333,) came before the Court, on demurrer, and the Court held, that it was not necessary to aver in the declaration that an execution had been issued, but that such fact must be proved at the trial.

Cowdin v. Stanton, (12 Wend., 120,) came before the Court, on a motion by the defendant for a new trial. Savage, Ch. J., said: “ It has been held, in Cowdin v. Pease, (10 Wend., 333,) in an action on this same bond, that the suit cannot be commenced on the bond until the return of the execution unsatisfied, in whole or in part; but that is matter of proof, and need not be averred in the declaration. No proof of that kind was offered on the trial.” (Id., p. 122.) In that case, no execution, of any kind, had been issued. In that case, it is true, Chief Justice Savage states, that it was admitted by the pleadings, “that the goods and chattels had not been returned, but were converted and disposed of by the Steam Navigation Company,” (the plaintiff in the replevin suit;) “ but it does not necessarily follow that they would not have been surrendered up to the officer upon a writ of retorno habendo. By the decision last cited, and the Revised Statutes, no action lies until such writ shall have been returned unsatisfied, in whole or in part.” (12 Wend., 122.) These observations may be conceded to be accurate, when made of a judgment, which, by its terms, awards a return of the property, and should probably, be understood as having been spoken with reference to a judgment in that form. The declaration in each of those cases, (as reported in the 10th and 12th of Wend., supra,) states that such was the form of the judgment rendered.

But section 64 of 2 Revised Statutes, page 553, (above quoted,) declares that “ if any writ of return, or other execution, issued,” &c., “shall be returned unsatisfied, in whole or in part,” an action may be brought upon the bond. Under the Revised Statutes, a defendant in replevin might, in many cases, waive a return, and take judgment for the value of the property. (2 R. S., 531, §§ 53, 54, 55.) When judgment was taken for the value only, and for damages for the detention of the property, no retorno habendo would issue, but an execution against property would be issued. When that was returned unsatisfied, in whole or in part; by section 64, (2 R. S., 533,) the defendant might bring a suit on the replevin bond given by the plaintiff and his sureties.

In the case before us, the judgment rendered is for the recovery of money only. When a judgment merely requires the payment of money, an execution “against the property of the judgment debtor,” is the appropriate and prescribed form. (Code, §§ 285, 286, and sub. 1 of § 289.) When the judgment requires the delivery of personal property, the execution, among other things, must direct “the officer to deliver the possession of the same,” &c. (Id., §§ 285, 286, and sub. 4 of § 289.)

In the case before us, the judgment requires the payment of money, and nothing else. An execution, in the form prescribed for such a judgment, has been issued and returned wholly unsatisfied. By section 64, (2 R. S., 533,) if that statute is applicable to these proceedings, an action might, thereupon, be brought against the parties executing the undertaking received by the Sheriff, if they had justified. By the terms of that undertaking, they agreed to be liable “ for the payment,” (to Delachapelle,) “ of such sum or sums of money as may, for any cause, be recovered against the defendant in” (that) “action.” In that action, by the judgment rendered in it, he recovered against the defendant therein the sum of $666.47. If that judgment is valid, and if its regularity cannot be impeached or inquired into collaterally, it is evident that such sureties, had they justified, would be liable, in an action against them, for that sum.

The Sheriff being liable as bail, and in the case before us being liable as such bail, the plaintiff, as the assignee of Delachapelle, is entitled to judgment on his verdict, if the judgment rendered is valid, until amended or reversed.

I think it needs no citation of authorities to show that it is not void, and that its regularity cannot be called in question collaterally. (Croghan v. Livingston, 17 N. Y. R., 218, 221-223.)

It was not necessary that an execution against the person of Thompson should have been issued and returned, before the right to bring this action would accrue. That is necessary only when an arrest has been ordered and made under the subdivisions of section 179, other than subdivision 3. In all cases except the one last named, the bail are discharged if the defendant is found and arrested on an execution against his body. He may surrender himself to the Sheriff of the county in which he was arrested, or be surrendered by his bail, in exoneration of their liability. (Code, §§ 188,191.)

But bail for a party arrested under subdivision 3 of section 179, are precluded from discharging their liability, by a surrender of their principal. (§ 188, sub. 2.) They become, by the terms of their undertaking, sureties for the actual payment of any sum that may be recovered against their principal. (§§ 187, 211.) In arrests for other causes, their undertaking is, simply, that their principal shall, at all times, render himself amenable to the process of the Court, during the pendency of the action, and to such as may be issued to enforce the judgment therein.” (§ 287.)

The consents given by the attorney of Delachapelle, that the hearing of the order to show cause, made on the 2d of October, 1855, be adjourned from time to time, from the 6th to the 24th of October, do not affect the Sheriff’s liability. They neither increased nor affected his risk. Had the order made on the 24th of October, 1855, been complied with, and sureties been given,, who justified, the Sheriff would have been relieved from liability.

Whether the deputy did or did not consent to such adjournments, was wholly immaterial. And whether the Sheriff or his deputy could or could not have subsequently arrested Thompson, and omitted to do so, is of no consequence, if the views already expressed are correct.

The assignment executed by Delachepelle to the plaintiff, transferred the cause of action for which this suit is brought. (Bowdoin v. Calman, 6 Duer, 182.)

The plaintiff must have judgment on the verdict. On making up the case, under the stipulation made at the trial, the evidence as to the consent of Bensel to the adjournments of the hearing upon the order to show causé, and as to his having been requested to rearrest Thompson, after the 29th of October, 1855, should be omitted, as it is disregarded by the Court, at General Term, in forming the conclusions above expressed.

Judgment for plaintiff on the verdict.


author: Hoffmaft, J.

text:
    Renard and Co., Plaintiffs and Appellants, v. Tuller, Hart and McCorkle, Respondents.
    Where a written agreement, dated January 6, 1857, was signed by some, but not by all the creditors of the firm of T., H. & McO., which declared that “ we, the undersigned creditors of the firm of T., H. & McO., in consideration of one dollar to each of us paid, agree to accept the sum of sixty cents on the dollar, in their notes at six, nine and twelve months, from the 1st of February, 1857, without interest, in full settlement of our respective claims against said T., H. & McO.; all claims to be put on the same basis and considered as due 1st February, 1857, by allowing or deducting interest; and the original notes are to be held as collateral until the notes given in compromise are paid,” it was held:

    1. That such agreement was, in effect, a contract of the creditors signing it with each other, as well as between them severally and their common debtor.
    2. That it was obligatory on those signing it, though not signed by all the creditors, and although some who did not sign it, had been paid sixty per cent cash; and others whose claims were very small in amount, had been paid a larger per centage.
    3. That the agreement of the several signing creditors to relinquish a part of their demands, was a sufficient consideration for the promise of each, to accept a part in satisfaction of his whole debt.

      4. That a tender of notes of such firm, dated January 1, 1857, for proper amounts, at seven, ten, and thirteen months, from that date, was a performance by such firm of the agreement, on their part, to give notes at six, nine, and twelve months, from the 1st of February, 1857.
    5. That the fact, that one of such firm expected that the firm would make $10,000 by the compromise, and so declared, was immaterial, and did not affect its validity; there having been no misrepresentation or concealment by the firm of any material fact, to induce the signing of such agreement
    (Before Bosworth, Ch. J., and Hoffman and Moncrief, J. J.)
    Heard, January 11;
    decided, January 29, 1859.
    This is an appeal by the plaintiffs, from an order of the 1st of June, 1858, denying a motion made by them for a new trial; and also from a judgment entered on the 2d of June, 1858, in favor of the defendants, Hart & McCorkle, for the sum of $111.31, their costs of the action; and from a judgment, entered the same day, in favor of the defendant Tuller, for the sum of $108.05— his costs of the action.
    The action was to recover the amount of several promissory notes, made by the defendants, and delivered to the plaintiffs. The defendant Tuller, appeared by P. G\ Clark, and put in a separate answer; and the defendants Hart and McOorkle, appeared by D. D. Lord, and put in an answer.' The defendants, in their answers, admitted the making of the notes, and their delivery, and set up by of way defense; a composition agreement, and performance of it, on their part. The composition agreement is as follows, viz.:
    “We, the undersigned creditors of the firm of Tuller, Hart & McOorkle, m consideration of the sum of one dollar, to each of us paid, agree to accept the sum of sixty cents on the dollar, in their notes at six¡ nine, and twelve months, from the 1st of February, 1857, without interest, in full settlement of our respective claims, against said Tuller, Hart & McOorkle.”
    “ All claims to be put on the same basis, and considered as due February 1, 1857, by allowing or deducting interest; and the original notes are to be held as collateral, until the notes given in compromise are paid.
    “New York, 6th January, 1857.”
    It was proved, at the trial, that creditors to the amount of about $87,000, signed this, and a duplicate instrument in the same terms. Creditors to about $29,000 signed that which the plaintiffs signed, prior to their signature. Their demand was $16,335.07. And creditors to about $24,000, in amount, signed the same paper subsequently. The liabilities of the firm- were about $225,000. Their assets were valued at about $189,000, by themselves; and at about $164,000, by the creditors.
    A number of creditors, who did not sign the agreement, were subsequently settled with; some at under sixty cents on the dollar, for cash; some for sixty cents cash, less interest; some small amounts, not exceeding $300, were paid in full. Some other creditors remain, who have neither signed, nor been settled with in any way, especially E. D. Morgan, to the amount of $28,000, and Earle, Porter & Co., to the amount of about $5,000.
    On the 29th of January, 1857, the defendants tendered, as performance, on their'part, of the composition agreement, three notes to the plaintiffs, all dated January 1, 1857; one at thirteen months, for $3,226.14; one at ten months, for $3,226; and one at seven months, for $3,225. The plaintiffs refused to accept of the notes. Some evidence was given, tending to prove that, if all the creditors of the defendants (except those whose demands were regarded as confidential) had accepted sixty per cent in compromise, there might have remained, to the defendants, a surplus estimated at not exceeding $10,000. And, also, that one of the defendants believed his interest in the assets of the firm to be worth $10,000.
    The cause was tried before Mr. Justice Woodruff, and a jury, in May, 1858. When the parties had rested, the Judge stated that he did not perceive that there was any disputed question of fact to be submitted to the jury. The counsel of the plaintiffs requested the Court to submit to the jury, as a question of fact, whether the defendant William G. Tuller, did or did not intend to make $10,000 by the compromise with his creditors; and if so, that that was a fraud upon the plaintiffs.
    The Court refused to submit this question to the jury, and the plaintiffs duly excepted.
    The Judge charged the jury that the compromise agreement constituted a defense; to which the plaintiffs excepted.
    The Court directed the jury to find a verdict for the defendants, which was done accordingly.
    A motion was made at Special Term for a new trial upon a case and exceptions, and denied by order of the 1st of June, 1858.
    Judgments for the costs were entered on the 2d of June, 1858, as before stated. From such judgments, and from the order, denying a new trial, the plaintiffs appealed to the General Term.'

      C. Bainbridge Smith, for appellants (the plaintiffs).
    I. The agreement on the part of the plaintiffs to accept, without accepting sixty per cent of their claim in notes of the defendants, at nine, twelve and fifteen months, is without consideration, and not binding upon the plaintiffs. (Heathcote v. Crookshanks, 2 T. R., 24; Greenwood v. Lidbetter, 12 Price R., 183; Lynn v. Bruce, 2 H. Bl., 317; Lowe v. Eginton, 7 Price, 604; Fitch v. Sutton, 5 East. R., 228; Thomas v. Courtnay, 1 Barn. & Ald., 1; Fellows v. Stevens, 24 Wend. R., 294, 302; Acker v.
      Phœnix, 4 Paige R., 305; Breck v. Cole, 4 Sandf. S. C. R., 79, Dolsen v. Arnold, 10 How. Pr. R., 530.)
    1. The agreement is not under seal. (Acker v. Phœnix, 4 Paige R., 305.)
    2. All the creditors did not execute it. (Boothbey v. Sowden, 3 Camp., 175.)
    In this case there was an agreement for an extension of payment merely, and the Court held there was sufficient consideration for each of the creditors that it was subscribed by all the others.
    (1.) Such agreements stand upon a different footing than composition deeds, and are looked upon with more favor. (3 Chitty’s Com. Law.)
    (2.) In Norman v. Thompson, 4 Exchequer, 755, (Welsby, Hurlstone & Gordon,) the Court said : “The only question here is whether there is a variance between the agreement as stated in the special verdict, and the averment of it in the plea.” The plea stated that the defendant agreed with the plaintiff and divers other creditors, and the plaintiff and the said last mentioned creditors then mutually agreed with each other to accept ten shillings in the pound as a composition upon and in full satisfaction and discharge of their demands, and it was found by the special verdict that such agreement was made, and that all the creditors, except three, then agreed with each other to accept said compromise. The Court held that there was no variance between the plea and the facts found by the special verdict, and an agreement by each individual to give up part of his claim is a sufficient consideration.
    (3.) The case at bar is distinguishable from that of Norman v. Thompson in this respect: (1.) It involves the validity of the composition agreement, and not the construction of the plea; and (2) the creditors in this case did not agree with each other to give up part of their claim, and, consequently, lacks the essential ingredient of that case. (See Brown v. Dakeyne, 11 Jur., 39; Reay v. Richardson, 2 Cr. M. & R., 422.)
    (4.) No case in the books can be produced (except Norman v." Thompson, if it decide otherwise) where an executory agreement such as the one in question has been held to bind the creditors who signed it. It is mere nudum pactum. And those cases in which it has been held that it was not essential to the validity of the agreement, that all should enter into it to render it binding on those who executed it, are cases where the agreement was under seal, or where a higher security was given, and which agreement of itself, independent of its being a composition, was a sufficient accord and satisfaction. Such were

      Bradley v. Gregory, (2 Camp., 383,) which is said by the Court in 24 Wend., 302, to be the strangest case, and there a higher security was given.

      Wood v. Roberts, (2 Starkie R., 417,) which Lord Abutger said, (in Reay v. Richardson, 2 Cr. M. & R., 428,) “ must have been decided on the particular facts of the case,” and there also a higher security was given.

      ■ Good v. Gheeseman, (2 Barn, and Adol., 328; id., 22 E. O. L. R., 89,) was an extension agreement, signed by some of the defendant’s creditors. The debtor covenanted to pay two-thirds of his annual income to a trustee of their nomination, and give a warrant of attorney as collateral security. Held a defense to the action.

    (5.) On the other hand, all the authorities concur in the proposition that the agreement in question is not binding. (The counsel commented on Acker v. Phœnix, 4 Paige, 305; Heathcote v. Crookshanks, 2 J. R., 24; Greenwood v. Lidbetter, 12 Price, 183; Lynn v. Bruce, 2d H. Black., 317; Lowe v. Eginton, 7 Price, 604; Fitch v. Sutton, 5 East. R., 230; Thomas v. Courtnay, 1 B. and Ad., 1.)
    3. There is no pretense that any creditor was lured to accept the composition by any act of the plaintiffs; if such had been the case, it should have been pleaded; such an act would have been a fraud, and fraud cannot be presumed; and where it is stated that if any creditor has induced any other creditor to compound with the debtor, the creditor luring the other will be bound by the compromise, applies only to those cases where the creditor has parted with his debt, so that he could have no recourse upon his original demand. Such is not the case at bar, even if the plaintiffs induced all the other creditors to sign it. The authorities from which this principle is cited in the elementary works, and referred to in the books, in which it was not necessary to the decision of the cases, do not carry out that principle to the extent in which it is generally stated. (Greenwood v. Lidbetter, 12 Price, 183; Bradley v. Gregory, 2 Camp., 383; Wood v. Robert, 2 Stark, 416; Hawley v. Foote, 19 Wend., 516.)
    II. The defendants failed to perform the agreement on their part. The compromise notes, according to the agreement, were to bear date on the first of February, 1857; those tendered, bore date on the first of January, and had seven, ten, and thirteen months to run, instead of six, nine, and twelve, as called for by the composition agreement. It also appears that the plaintiffs’ claim amounts to but the sum of $7,236.56, while the compromise notes that were tendered amounted to the sum of $9,677.14.
    1. All the cases hold that if the terms of' the composition agreement be not exactly followed by the debtor, the creditor is remitted to his original rights; and the onus is with the debtor to prove -such - performance. (Fellows v. Stevens, 24 Wend. R., 302; Dolsen v. Arnold, 10 How. Pr. 530; Oughton v. Trotter, 2 Nev. & M., 71; Cranley V. Hillary, 2 M. & S., 120; Rosling v. Muggeridge, 16 M. & W., 181.)
    2. Where it is necessary for a party to plead, or aver performance or a tender thereof, an exact performance must be stated. (1 Chitty on Pleading, 325; Spencer v. Tilden, 5 Cow. R., 144; Oakey v. Morton, 1 Kern,, 25.) '
    3. The compromise notes, if accepted by the plaintiffs, according to the testimony in the case, would have been fraudulent and void.' (Breck v. Cole, 4 Sandf. S. C. R., 79).
    III. The agreement, if otherwise valid, has become inoperative upon the plaintiffs by reason of the defendants’ having paid some of their creditors in cash as much as the defendants were to receive in notes.

    1. It was necessary that all the creditors should sign the agreement.- It is* headed) “ We, the undersigned,- creditors,” which means ALL, and not "a PORTION of them; and only $69,000 out of $225,000 would execute the agreement. It also provides that all claims shall be put upon the same basis. -
    2. The payment by the defendants to some of their creditors in cash, although those creditors never acceded to the arrangement, or executed the agreement, was a fraud upon the plaintiffs - and the other creditors who did sign; a composition' agreement is, in its spirit, if not' in its terms, an agreement that all the creditors shall stand in the same situation; and-where - the debtor allows any creditor to obtain an advantage over the others, or pays one in preference to another, such an act is a fraud upon .the other creditors, and renders the whole agreement inoperative and void. (Spooner v. Whiston, 8 J. B. Moore, 580; Id., 17 E. C. L. R., 112; Leicester v. Rose, 4 East. R., 372; Breck v. Cole, 4 Sand. S. C. R., 79—and cases cited.) The judgment should be reversed, and a new trial granted.

      Daniel D. Lord for the respondents, Hart & McCorkle.
    I. There was no error in refusing, to submit to the jury whether William Gr. Tuller did or did not intend to make $10,000 by the compromise, and to charge that it was a fraud upon the plaintiffs.
    1. There was not evidence enough to sustain this fact if the jury had so found it.
    The only evidence to the point, is in Tuller’s deposition. He states that at the time of the settlement he believed his interest to be worth $10,000; but this is on the supposition that all the creditors not confidential, would accept the terms.
    2. Even if the evidence proved it, an intention, much less a mere expectation of saving $10,000, is not necessarily or legally a fraud.
    (a.) It does not appear that any misrepresentation or concealment existed, as to assets or liabilities.

      (b.) The expectation may have arisen, and in fact, as appears by the testimony, did arise from an expectation of realizing by good management, more than the balance of the assets.
    H. There was no error in charging that the compromise agreement constituted a good defense.
    I. It was an agreement signed by plaintiffs and several others, creditors of defendants, releasing them on receiving sixty per cent in notes. It must be held a valid release, unless the plaintiffs show some fatal defect in it. The plaintiffs claim that it is invalid for want of consideration, want of seal, omission of some creditors; none of these objections are sufficient.
    2. There was a valid consideration; the agreement by each creditor being consideration enough to support the agreement by the others. (Norman v. Tompson, 4 Exch., 759.) Held that an agreement to release, made by a portion of the creditors, is binding.
    Pollock, C. B. “ It is a good consideration for one to give np part of his claim that another should do so, this appears not to need an authority.” (Boothbey v. Sowden, 3 Camp., 174; Bradley v. Gregory, 2 id., 383.) Oral promise to accept a compromise held valid. (Steinman v. Magnus, 2 Camp., 124.) Composition not under seal, held valid. (Cranley v Hillary, 2 M. & S., 120.)
    Composition not under seal, admitted to be valid, but creditor allowed judgment, because defendant did not tender the compromise notes.
    These cases are approved in Fellows v. Stevens, (24 Wend., 298, 296.)
    ' The following cases which may perhaps be cited against the principle of the above decisions, will be found on examination not to contradict it.
    ' Heathcote v. Groolcshanh (2 T. R., 24.) Demurrer to a plea setting up a composition by way of defense. The judges decided against the composition on the ground, that it was an accord without satisfaction. It was not expressly pleaded that plaintiff’s agreement to accept it was in consideration of all the creditors coming in. Duller, J., admitted, that if the latter had been averred, the accord and tender might have been a bar, (see Fellows v. Stevens, 24 Wend., 299,) but this decision is overruled by the subsequent decision of Norman v. Thompson, above cited.

      Fitch v. Sutton (5 East. R., 228.) The composition in this case was a mere accord not supported by the mutual consideration arising from agreements by several creditors.

      Fellows v. Stevens (24 Wend., 294.) Decides only that an accord without satisfaction is invalid, it admits that an oral composition would be valid. (297.)
    • In this case plaintiffs recovered because defendant had expressly released him from the composition.

      Acker v. Phenix (4 Paige 305.) The composition was by deed, but contained a proviso that it should not be binding, unless each and every creditor united in it.
    Some creditors did not unite in it, and the debtor endeavored to show a parol agreement that some_ might be left out. Held that the written agreement could not be varied by parol. What was said by the Chancellor about the necessity .of a seal, did not arise in the case, no objection of that sort being made to the composition.

      Greenwood v. Lidbetter (12 Price, 183.) In this case the plaintiff had not signed any composition agreement.

      Thomas v. Courtnay (1 B. & A., 1.) Only question was upon the construction of the agreement which was held valid though not under seal.

      Lowe v. Eginton (7 Price 604.) Seal required to this composition because deed to be released was a specialty.

      Cockshott v. Bennett (2 T. R. 763.) Does not decide a composition not under seal to be invalid.

      Dolsen v. Arnold (10 How. Pr. R., 528.) Not a question of composition but of accord and satisfaction.

      Brown v. Dakeyne (11 Jurist., 39.) The bearing of this case is defined in Norman v. Thompson (4 Exch., 759,) viz., that when it is averred, in a plea that all the creditors united in a composition, it is not enough to prove that only some did so, that if the averment had been that some other creditors united, it would have been a valid composition, and the proof would have supported it.

      Reay v. Richardson (2 Cr. M. & R.) Case of accord not composition.
    3. The consideration being sufficient there was no need of a seal, nor for the execution by all the creditors, unless such provision was expressed. (Constantine v. Blache, 1 Cox., 287.) .
    IY. The subscription by the plaintiffs was an inducement to others to subscribe.
    The French and Swiss firms signed the same paper, but not until after plaintiff’s signature.
    Y. The notes tendered were a sufficient compliance with the ' agreement.
    The notes matured on the day specified in the agreement, if there were any objection to the form of the notes, it should have been mentioned at the time when they were tendered.
    YI. There has been no infringement by defendants of any of the provisions of the composition.
    “ All claims to be on same basis,” relates only to the time of maturity of claims of those signing the agreement as shown by the words “ And considered as due 1st February, 1857, by allowing or deducting interest.”

      "VIL It is not shown as a fact that any claims were settled at more than sixty per cent, except one claim collected by attachment which defendants could not prevent.

      P. G. Clark, for respondent; Tuller.
   Hoffmaft, J.

I do not think that there is anything in the composition agreement to warrant the position of the plaintiffs’ counsel, that the agreement was to be inoperative unless all the creditors signed it. Such a condition ought to be expressly declared, or clearly deducible from unambiguous language. Compositions could rarely be carried into effect if such stipulation is, in every case, or in every doubtful case to be implied, when the contrary is not declared.

The phrase is neither all the creditors, nor even the creditors, but merely “ creditors.” The clause, “ all claims to be put on the ■same basis,” is as applicable to the claims of all who shall sign, .as to the claims of all who may be creditors.

Late English authorities have fully settled that a composition agreement, made between a debtor and a portion of his creditors, is ■valid and binding. The consideration of the relinquishment of a part of their claim by the others, is sufficient to make the promise and discharge of each obligatory. (Norman v. Thompson, 4 Exch. R., 755 [1850]; Good v. Cheeseman, 2 Barn. & Adol., 328 [1831]; Boyd v. Hind, 40 Eng. L. and Eq. R., 428 [1857].)

Williams, J., in delivering the opinion of the Court in Boyd v. Hind, says: “ The law with respect to defenses founded on ■compositions between a debtor and his creditors, appears not to have been distinctly defined until the case of Good v. Gheeseman. It used to be sometimes laid down that a right of action once vested, could only be divested by a release or by accord and .satisfaction-; but since the decision of that case, the law has been considered as settled, that a composition agreement by several -creditors, although by parol, so as to be incapable of operating as a release, and although unexecuted, so as not to amount in strictness to a satisfaction, would be a good answer to an action ■by the creditor for the original debt, if he accepted the new agreement in satisfaction thereof; and that for such an agreement there is a good consideration to each creditor, namely, the undertaking by the other compromising creditors to give up a part of their claim. But no such agreement can operate as a defense if made merely between the debtor and a single creditor. The other creditors, or some of them,' must also join in the agreement with the debtor and with each other; for otherwise it would be a bare contract to accept a less sum in satisfaction of á greater, which would be invalid, by reason of want of consideration for relinquishing the residue.” (See the correction of the report of Norman v. Thompson, by Willes, J., at p. 429.)

In Norman v. Thompson, Parke, Baron, said “ an agreement by two or more of the creditors to enter into a composition is perfectly good and binding as to those parties, whether the others do so or not. The agreement by each individual to give up part of his claim is a sufficient consideration.”

Although in Boyd v. Hind and Norman v. Thompson, the instrument recited that “ each of the undersigned creditors in consideration of the agreement therein contained on the part of the others,” agreed with the others, and also with the debtor, yet I apprehend such a clause is not essential. I think an agreement between themselves will be legally inferred from an instrument in which several relinquish part of their demands.

In Good v. Cheseman, four creditors, including the plaintiff, signed a paper reciting, that the defendant was indebted to them for goods sold and delivered; that he was unable to make immediate payment of the same, and they agreed to receive payment of the same by his covenanting to pay to a trustee one-third of his annual income, and to execute a warrant of Attorney as collateral security therefor.

And in Boothbey v. Sowden, (3 Camp. 174,) the agreement was with the debtor only.

The cases, also, in which, any agreement to pay a particular creditor something beyond the composition amount has been held void, bear upon this point. The agreement in Breck v. Cole, (4 Sandf. S. C. R., 80,) had no stipulation as between the creditors themselves, and Justice Duer says, “ every composition deed is, in its spirit, if not in its terms, an agreement between the creditors themselves, as well as between them and the debtor.”

There was no such clause in the cases of Knight v. Hunt, (5 Bingham, 432,) Constantine v. Blache, (1 Cox, 287,) or Cullingworth v. Loyd, (2 Beavan, 385,) an important case.

The basis of the doctrine is, the relinquishment to the debtor by the others who sign, of a part of their claims, or the concession of some modification of the right to enforce them; this constitutes the consideration, and as this'exists without any such clause as is referred to the implication of an agreement among themselves is raised, and is equivalent to its expression in the instrument.

Is this rule recognized, disavowed, or modified by any binding decision in our own Courts ?

The general principle that such deeds are agreements between the creditors themselves, as well as between them and the debtor is stated in Breck v. Cole (4 Sandf. S. C. R., 80,) and Hughes v. Alexander (5 Duer, 488-493).

The decision in Fellows, v. Stevens (24 Wend., 294,) was that the creditor might, under the circumstances of the case, withdraw his assent to a composition deed; and then the debtor was there estopped from setting it up.

Acker v. Phœnix (4 Paige, 305,) was ther case of an explicit condition in the instrument, that the signature should be void unless all the creditors assented to the agreement. An attempt was made to prove a change in this condition by parol, and was rejected.

My conclusion is, that the agreement in question was operative and binding upon the plaintiffs.

2d. The variation in the date of the notes from the 1st of February to the 1st of January, seems to me immaterial. It is not expressly stipulated that the notes should bear date the 1st, of February. They are to be at six, nine and twelve months from the 1st of February. The period of maturity is the principal matter provided for, and the notes at seven, ten and thirteen months from the 1st of January matured at the same time as the others would have done.

It is said that the plaintiffs’ claim is only $7,236.56, as demanded in the complaint; while the notes tendered amount to $9,677.-14; and if accepted would have been a fraud upon others. But the debt to the plaintiff is set down at $16,335.67. Sixty oents on the dollar would be $9,801.40. The statement at the bar was, that other notes had been sued upon in another Court. At any rate, there is nothing, upon the case before us, in this point.

The discrepancy between the $9,801.40 (sixty per cent of $16,335.67,) and the amount of the notes tendered, $9,677.14, is readily accounted for. The $16,335.67 was not all of it payable until after February 1st, 1857. By the agreement, there was to be a rebate of interest, so as to determine the amount of the compromise notes by “considering the debts as due” on that day.

3d. It is insisted that the payment to some of the creditors in cash was a fraud, and avoids the composition. The evidence is of various settlements of claims" for cash; two other small ones at sixty cents; many at a rate varying from fifty to sixty cents, less the interest. The amount over sixty cents actually paid does not exceed $250, as far as can be gathered from the evidence. We are satisfied that the inference of fraud from these facts is unwarranted ; but at any rate, such a question ought to have gone to the jury, and the plaintiffs ought to have requested it to be put to them, if they deemed it possible to support the allegation.

4th. Some exceptions were taken to the rulings of the Judge in respect to the evidence. No point connected with them is now made by the plaintiffs’ counsel. We have, however, examined them, and think they are all untenable.

5th. In regard to the exception on account of the refusal of the Judge to submit to the jury whether the defendant Tuller did not intend to make $10,000 by the compromise, and if so, that it was a fraud; no point is now made by the appellants’ counsel. It was slightly adverted to on the argument. We think, that such a point would have been plainly untenable.

The judgment must be affirmed, with costs.

The other Judges who heard the argument concurred in affirming the judgment.

Judgment affirmed.