author: Pratt, J.:

text:
    The People of the State of New York ex rel. George Keller, Relator, v. William C. Many and Others, Aldermen of and Composing the Common Council of the City of Mt. Vernon, Respondents.

      City of Mount Vernon — when the jurisdiction of the board of aldm'inen thereof will Oe presumed — when am, assessment for municipal improvement will not be interfered with — estoppel.

    The subject-matter of grading and altering or changing the grade of streets in the city of Mount Yernon is within the jurisdiction of the board of aldermen of that city.

      Where the proceedings of a hoard of aldermen have been open, notorious and duly advertised, a person interested in such proceedings will be presumed to have known their purpose and the precise plan and specifications for work, ordered by them.
    In a proceeding by certiorari to review an assessment upon the relator’s land It appeared that long before the contract was entered into by the municipal corporation, the relator knew that his land was within the prescribed assessment district of the proposed municipal improvement; he also knew the theory of the whole procedure; that he did not object to the improvement when it was proposed, nor did he make any remonstrance on any ground at any time before the work was actually done, but acquiesced in the proposal and in the plans and specifications for the work, and that subsequently he presented a claim of some sort to the common council of the city for adjustment growing out of the performance of the work.

      Held, that under such circumstances it was fair to presume that he acquiesced in the theory that the improvement was within the jurisdiction of the board of aldermen of the city, which depended upon extrinsic facts, and that he could not, after receiving the benefit of the public improvement, escape payment of his share of the expense by alleging want of jurisdiction.
    Where the warrant for the collection of an assessment for a public improvement is issued and delivered to the collector long before a relator’s petition to review such assessment is presented, the court will not interfere.
    OebtioeaRi issued out of the Supreme Court, and attested on the 3d day of November, 1894, directed to William C. Many and others,, aldermen of and composing the common council of the city of Mt. Vernon, directing them to certify and return to the office of the clerk of the county of Westchester all and singular their decisions and actions in regard to the changing of the grade and paving of South Fourth avenue from Fourth to Sixth streets, in the city of Mt. Vernon, with the decisions thereof, and all resolutions adopted by them, and each and every of their proceedings therein, in relation thereto, with the rulings and decisions.

      Milo J. White, for the relator.

      David, Swits, for the respondents.
   Pratt, J.:

The subject-matter of grading and altering or changing the grade of streets in Mount Vernon was plainly within the jurisdiction of the respondents. The relator’s contention, that they proceeded without jurisdiction, depends upon the question whether or not this work was in fact an alteration or change of grade, within the meaning of the statute. The allegation of the petition, that South Fourth avenue had been for many years used as a public highway before the respondents began work to pave, is not definitely controverted by the return. There is, therefore, some ground for the relator’s contention, that the grade of the avenue had been established by long usage at the surface of the old road, and thus to make the case one of change or alteration of an established grade. So, too, it is obvious that the work authorized and done actually raised the former surface of the avenue three feet in some places. But it is equally plain that the respondents did not proceed upon the theory that by authorizing this work and causing it to be constructed they were changing or altering the grade of the avenue within the meaning of that term as used in the statute. Their proceedings seem to have been open, notorious and duly advertised. Presumably, therefore, the relator knew their purpose, and the precise plans and specifications for the work. In other words, he knew precisely what it was proposed to do. Long before -the contract was made he knew that his land was within the prescribed assessment district. He also knew the theory of the whole procedure. We cannot presume that the work done was a damage to the relator without some benefit, or that the damage was greater than the benefit. There is nothing in the papers before us to justify such a presumption. There is no pretense that the relator objected to the proposed improvement when it was proposed, or that he contended that it involved a change of grade, or that he made any remonstrance on any ground at any time before the work was actually done. On the contrary, he seems to have acquiesced in the proposal and in the plans and specifications for the work. His petition shows that he subsequently presented a claim of some sort to the common council for adjustment growing out of the performance of this work. Under these circumstances, it is fair to presume that he acquiesced in the known theory that the improvement was not an alteration or change of grade. Hence, since his attack upon the respondents’ jurisdiction depends upon proof of extrinsic facts, his allegation respecting those facts is met by inferences deduced from his conduct, which tend to show acquiescence in the theory of jurisdiction, that is to say that, with full knowledge of the respondents’ proposal, he lies by, waits, suffers an important public improvement to be made, without objection, on the assumption that- it did not involve an alteration or change of grade, until he obtains all the benefit, which can arise therefrom, maybe presents his claim for damages,, and then turns about and attempts to escape payment of his share of the expense by alleging that the work, after all, really did involve a change of grade. . There certainly is no equity in such a case, and if it succeeds at all it should be strietissimi juris. To interfere now would involve the rights of many othei's. Hence, upon principle and as matter of discretion, we are disinclined to interfere, on the theory of want of jurisdiction. Nor do we see that the respondents did any wrong in the letting. The contract seems to have been awarded to the lowest bidder. The fact that there was a lower bid than Murray’s for excavation is met by the fact that his aggregate was lower than any other aggregate which included excavation.

We cannot interfere with the amount of the assessment on relator’s land. That was a matter plainly within respondents’ jurisdiction. It depended upon the valuation of his land, and, perhaps, on special considerations which are not before us. There appeal’s to have been no departure from principle in the entire business.

Finally, the warrant for the collection of the assessment was issued and delivered to the collector long before the relator’s petition was. presented. W e ought not, therefore, to attempt to interfere.

The writ must be quashed, and the relator’s proceeding must be dismissed, with costs.

Dykman, J., concurred; Brown, P. J., not voting.

Determination confirmed, with costs.


source: Caselaw Access Project

license: Public Domain

text:
    Philadelphia Griffith, Respondent, v. Staten Island Rapid Transit Railroad Company, Appellant.

      Failure to mom to dismiss a complaint — ■ a concession that there is sufficient evidence to go to the jury.

    A failure to move to dismiss the complaint or for the direction of a verdict at the close of the testimony on both sides is a concession that there was then evidence sufficient to carry the case to the jury: in the face of such a concession an appellate tribunal cannot review the denial of a motion to set aside the verdict.

      Appeal bj tbe defendant, tbe Staten Island Rapid Transit Railroad Company, from a judgment of tbe Supreme Court in favor of tbe plaintiff, entered in tbe office of tbe cleric of tbe county of Kings on the 11th day of March, 1895, upon tbe verdict of a jury rendered after a trial at the Kings County Circuit, and also from an order entered in said clerk’s office on the 12th day of March, 1895, denying tbe defendant’s motion for a new trial made upon tbe minutes.

      Tracy, Boardmam, & Platt, for the appellant.
    Grout, De Fere & Mayer, for the respondent.
   Pratt, J.:

The only points made by appellant relate to tbe sufficiency of the evidence to prove freedom from negligence by plaintiff and the fact of negligence by itself. These points arise upon appellant’s motion to dismiss the complaint when plaintiff rested, and the motion .to set aside the verdict and for a new trial. There was no motion to dismiss at the close of the case nor was there any request for a direction. If plaintiff’s evidence was insufficient on the question of her own or defendant’s negligence, the point is not available, provided the case on all the evidence was for the jury. It - seems to have been so regarded by defendant. Its failure to move to dismiss or for the direction of a verdict at the close of the testimony on both sides has been held to be a concession that there was then evidence sufficient to carry the case to the jury. (Barrett v. Third Ave. R. R. Co., 45 N. Y. 632.) This rule seems to make out a waiver of the exception for denial of the motion to dismiss, that is to say, it is a concession that the case was so changed since that motion was made that the case had come to be one for the jury. (Id. See, also, Sternwald v. Siegel, 57 N. Y. St. Repr. 491; Eckensberger v. Amend, 1 Misc. Rep. 452; S. C., on appeal, 10 id. 145.) With this concession before us we cannot review the denial of the motion to set aside the verdict. Even if it were otherwise, we think that, although the case was a close one on the questions of negligence, it was properly, as it certainly was fairly and carefully, submitted to the jury by the learned trial judge.

The order and judgment should be affirmed, with costs.

Dykman, J., concurred; Brown, P. J., not sitting.

Judgment and order affirmed, with costs.


text:
    In the Matter of the Probate of the Last Will and Testament of Helene Degen, Deceased. Joachim Frederick Rothgart, Appellant; Hugh McNeile, Respondent

      Contested probate of will — use of a certificate made by physicians previous to the execution of the will — what will warrant the reversal of the decree.

    In a contest over tlie probate of a will it is not prejudicial to the contestant to permit doctors, who examined the testator long previous to the making of the will, to look at a certificate they had made, they having testified to their present recollection.
    To warrant a reversal upon an appeal from, a decree admitting a will to probate after a contest, the error alleged must appear to have prejudiced the appellant.
    Appeal by Joachim Frederick Rotligart, one of the heirs and next of kin of Helene Degen, deceased, from a decree of the Surrogate’s Court of the county of Kings, entered in said Surrogate’s Court on the 24th day of February, 1892, admitting the will of Helene Degen to probate.

      Charles J. Patterson, for the contestant, appellant.

      Bernard J. Bouras and Henry Thompson, for the proponent, respondent.
   Pratt, J.:

This is an appeal from a decree of the surrogate of Kings county admitting to probate the will of Helene Degen, deceased, etc.

An examination of the evidence satisfies us that the conclusions o£ fact found by the surrogate are fully sustained by the evidence, and that the will was properly admitted to probate.

It is true there was some conflict in the testimony, yet a clear preponderance seems to be in favor of the proponent; besides, the surrogate had the advantage of seeing the witnesses and hearing them testify, and was thus better able to judge of the credibility of witnesses than an appellate court. Neither do we discover any error in the rulings of the surrogate upon the trial. There was no merit in the point that the witnesses did not subscribe the will in the presence of the testatrix. (Matter of Will of Phillips, 98 N. Y. 267.)

It was not prejudicial to the contestant to permit the doctors, who examined the testatrix long previous to the making of the will, to wit, August 20, 1890, to look at the certificate they had made, as they testified to their present recollection. The rule is that in appeals of this kind the error must appear to have prejudiced the appellant to warrant a reversal. (Code Civ. Proc. § 2545; Matter of Smith, 95 N. Y. 516.)

I do not think this case can be properly classed as doubtful.

The judgment must be affirmed.

Brown, P. J., and Dykman, J., concurred.

Decree of surrogate affirmed, with costs.


text:
    John Gray, Appellant, v. The Kaufman Dairy and Ice Cream Company, Respondent.

      Landlord and tenant — surrender of pi'émises — when a question for the jury.

    In an. action brought to recover rent, under a written lease of real property, the testimony tended to show that the defendant sent plaintiff the keys of the premises about October 31, 1893, and that they were received by the plaintiff November 2, 1893. On November 3, 1893, plaintiff wrote defendant that he did not accept the surrender, that he intended to hold defendant for the rent and that he would rent the premises for defendant’s account, and hold him for the damages that might he sustained. Plaintiff requested that the case be sent to the jury on the question whether there was a surrender, as matter of fact, which was denied and a verdict was directed for the defendant.

      Held, that, as the jury would have been j ustified in finding from defendant’s silence that it assented to the terms thus prescribed, in which case there would have been an implied agreement between the parties that plaintiff might relet the premises for defendant’s account, which would have been sufficient to justify a finding that there was no surrender, a denial of the request of the plaintiff to go to the jury, on the question whether there was a surrender, as a matter of fact, necessitated the ordering of a new trial.
    Appeal by the plaintiff, John Gray, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 28th day of January, 1895, upon the verdict of a jury, rendered by direction of the court after a trial at the Kings County Circuit, and also from an order entered in said clerk’s office on tlie 18tli day of January, 1895, denying the plaintiff’s motion for a new trial made upon the minutes.
    This action was brought to recover the rent of real property under the terms of a written lease. The defense interposed was that the defendant surrendered to the plaintiff the demised premises, and that the plaintiff, in violation of the terms and covenants in said lease contained, entered upon said premises, took full possession thereof, evicted the defendant therefrom and nailed up the doors and barred the entrance thereto and refused the defendant access to the premises, and that such acts constituted an acceptance of said surrender and a waiver of the lease.

      Jacob F. Miller, for the appellant.

      M. Linn Bruce, for the respondent.
   Pratt, J.:

The only doubt in my mind about the disposition of this case by the learned trial judge arises on plaintiff’s request “to go to the jury on the question whether there was a surrender as matter of fact.” The testimony tended to show that defendant sent plaintiff the keys of the premises about October 31, 1893, and that they were received by plaintiff November 2, 1893. On the next day, November 3, 1893, plaintiff wrote defendant that he did not accept the surrender; that he intended to hold defendant for the rent, and that lie should rent the premises for defendant’s account and hold him for the damages that might be sustained. With this testimony before us I- do not see why the jury would not have been justified in finding from defendant’s silence that it assented to the terms thus prescribed, which were that plaintiff should let the premises for its account. Such a finding would have been warranted by the authority of Underhill v. Collins (132 N. Y. 272).

If the jury had so found, then by the same authority there would have been an implied agreement between the parties that plaintiff might relet the premises for defendant’s account, and that would have been sufficient to justify a finding that there ivas no acceptance of the surrender; in other words, that there was no surrender. I have, therefore, though with much hesitation, reached the conclusion tliat a new trial should be ordered, with costs of this appeal to the plaintiff if it shall be found that there was no surrender, and to the defendant, if it shall be found that there was a surrender.

Brown, P. J., and Dykman, J., concurred.

Judgment reversed and new trial granted, with costs of appeal to the plaintiff, if it shall be found by the jury that there was no surrender of the lease, and to the defendant, if it is found there was a surrender.


text:
    Simeon B. Fanning, Appellant, v. International Seed Company Respondent.

      Pleading — construction thereof on demur rer — insufficient allegations.

    'Upon demurrer a pleading must be construed according to the allegations therein contained and not according to an intention gathered outside the language used.
    The complaint in an action upon contract alleged that the defendant sold to the plaintiff potatoes, .representing that they were a new variety, enormous bearers, etc.

      Held, that this allegation did not amount to a warranty that the potatoes were to be a new variety, nor that defendant agreed that they should be a new variety, or contracted to deliver potatoes of a new variety.
    The complaint also alleged that the plaintiff purchased one-half the crop for $120, but it did not allege that he paid the money therefor under a mistake of fact or at all, nor that he had demanded its return.
    Held, upon demurrer, that a cause of action was not stated.
    Appeal by the plaintiff, Simeon B. Fanning, from an interlocutory judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Suffolk on the 22d day of October, 1894, upon the decision of the court rendered after a trial at the Dutchess Special Term sustaining the defendant’s demurrer to the complaint.
    The complaint in this action alleged that “ defendant agreed to furnish plaintiff with two barrels of a new variety of potatoes for seed, representing them to be superior in quality, enormous yielders" and unmixed, and that by reason thereof would be in great demand for seed in the spring of 1893, for one-half of the crop at digging time, and plaintiff agreed to plant said potatoes and cultivate the same, and at gathering time give defendant one-half of the crop.

      “ That about June 1,1892, plaintiff, relying on defendant’s representations of said potatoes, purchased defendant’s half of the growing crop for $120.
    “ That plaintiff performed and fulfilled all the conditions of said agreement on his part, but defendant did not furnish such potatoes as he agreed to, but furnished potatoes that were infei-ior in quality, very poor to yield, and not pure seed, but mixed with two or three other kinds of seed, and by reason thereof they were in no demand for seed in the spring of 1893.”
    The complaint demanded judgment for $250 damages.

      Daniel W. Reeve, for the appellant.

      J. B. M. Stephens, for the respondent.
   Pratt, J.:

The defendant’s points state that plaintiff in his complaint attempted to set out a cause of action upon a contract wherein the defendant agreed to furnish to the plaintiff a new variety of potatoes for seed that should be superior in quality, enormous yielders, unmixed, and that would be in great demand for seed in the year 1893, which contract defendant failed to perform.

The clear comprehension of plaintiff’s purpose in pleading would make it the duty of a judge at Circuit to admit proof of the cause of action attempted to be set out, and to make such amendment in the pleadings as might be necessary to conform them to the proofs. Biff upon demurrer a pleading must-be construed according to the allegations and not according to an intention gathered outside the language used.

In the present case the complaint alleges that defendant sold potatoes, representing that they -were a new variety, enormous bearers, etc. That is not an allegation that the potatoes were warranted to be a new variety, etc., nor that defendant agreed that they should be of a new variety, etc., or contracted to deliver potatoes of a new variety.

Suppose plaintiff had known the potatoes were not in fact a new variety, and were not enormous bearers, etc., and yet had made the purchase, the allegation in the complaint might be true, but plaintiff would not have been deceived.

It is true that proof upon a trial that a vendor represented goods' to be of a particular kind or quality, may oftentimes enable a jury to see that the transaction was understood by the parties to be a. warranty or a contract to deliver goods of a specified kind or quality, and render a verdict accordingly. But a representation is not necessarily, perhaps not usually, a warranty. Caveat erruptor is the general rule.

The allegations in the other branch of the complaint are equally loose.

The plaintiff avers that he “purchased defendant’s half of the growing crop for one hundred and twenty dollars,” but he does not allege that he paid the money under a mistake of fact, nor at all, nor that he has demanded its return.

. The judgment appealed from must be affirmed, but without costs, with leave to plaintiff 'to serve amended complaint on payment of costs of the Special Term.

Dykman, J., concurred; Brown, P. J., not sitting.

Judgment affirmed, without costs, with leave to plaintiff to serve-an amended complaint within twenty days, on payment of costs of Special Term.


author: Dykman, J.:

text:
    Michael J. Ahern, Appellant, v. The County of Kings and The County of Queens, Respondents.

      Counties — powers specific and limited — officers not agents — when counties are not liable for the negligence of their officers.

    In the State of New York the counties are organized for the exercise of a portion of. the powers of the State government. Their powers, duties and liabilities, are all conferred by the Constitution and the laws of the State, and they are all specific and limited.
    Counties possess no inherent power and are subject to no liability, except such as. is imposed by the statute. No liability is imposed upon the counties of the State of New York for the negligence of any of their officers if such liability is. claimed to rest upon the doctrine of respondeat superior. Such officers are not agents of the county.
    The complaint in an action brought to recover damages against the county of Kings and the county of Queens for injuries received, alleged that the injuries. sustained by the plaintiff were entirely due to the faulty and defective construction and maintenance of a bridge which was constructed and maintained by the boards of supervisors of the counties of Kings and Queens,

      jWeld, that the action could not be maintained against the counties for the recovery of the damages sustained by the plaintiff.
    Appeal by the plaintiff, Michael J. Ahern, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Kings • on the 25th day -of October, 1894, upon the dismissal of the complaint directed by .the court after a trial at the Kings County Circuit before the court wiilhout a jm7-

      Foley & Wray, for the appellant.

      George F. Elliott for the county of Kings, respondent.

      F. H. Van Vechten, for the county of Queens, respondent.
   Dykman, J.:

The complaint of the plaintiff in this action was dismissed at the trial on the motion of the defendants, because it failed to state facts sufficient to constitute a cause of action, and the plaintiff has appealed from the judgment of dismissal. It is stated in the complaint that the boards of supervisors of the counties of Kings and Queens conjointly built a bridge across Newtown creek, which flows between the counties of Kings and. Queens, and forms one of their boundaries. That such bridge -was used by the public by permission of the two counties, and while the plaintiff was lawfully upon the same it gave way, and the plaintiff was thrown into the stream below, and received the injuries complained of in this action. Then it is t averred that the injuries sustained by the plaintiff were entirely due to the faulty and defective construction and maintenance of the bridge and various other causes relating to the unsafe condition of the same.

The question is, can the action be maintained against the counties for the recovery of the damages sustained by the plaintiff ? In this State the counties are organized for the exercise of a portion of the State government. Their powers, duties and liabilities are all conferred by the Constitution and the laws of the State, and they are all specific and limited. They possess no inherent power, and they are subject to no liability except sucli as is imposed by the statute. Our Revised Statutes declare that the counties as bodies corporate have capacity to sue and be sued in the manner prescribed by law; to make such contracts and purchase and hold such personal property as may be necessary for the exercise of their corporate or administrative powers. That no county shall possess or exercise any corporate powers except such as are enumerated in the chapter which regulates tile subject, or shall be specifically given by law, or shall be necessary to the exercise of the powers enumerated or given. The powers of a county as a body politic, can only be exercised by the board of supervisors thereof, or in pursuance of a resolution by them.

In 1864, by chapters 8 and 1% of the Laws of that year, boards of supervisors were authorized to borrow money upon the credit of their counties for the payment of war bounties, and we have been referred to no statute, and we have discovered none, which imposes liability upon the counties for the negligence of any of their officers, if such liability results from the doctrine of respondeat superior, for the reason that such officers are not agents of the county. This court is fully committed to these views, for we have decided in another action which arose out of the same accident in which the plaintiff was injured, that the counties are not liable for the damages resulting therefrom. (Albrecht v. The Counties of Queens & Kings, 84 Hun, 399.)

The statute of 1892, which declares counties to be municipal corporations, lias imposed no new liabilities upon the counties.

The judgment, should be affirmed, with costs.

Brown, P. J., and Pratt, J., concurred.

Judgment affirmed, with costs.


text:
    Charles Beardsley, Respondent, v. George H. Cook, Appellant.

      Building contract —order by the contractor on the owner — when acceptance thereof constitutes cm assignment pro tanto.

    One George H. Cook entered into a contract with, the firm of Davis & Fay to build two bouses for him. Davis & Fay made a contract with one Beardsley to furnish them with certain materials, and gave to Beardsley an order on Cook for §1,175, which he accepted, payable out of the last .payment upon his contract with Davis & Fay, who, upon the faith of the order, ordered and received material from Beardsley aggregating $1,000.
    Davis & Fay failed to complete their contract in time and it was, under the terms of the contract, taken off their hands by Cook, who finished the houses himself at the expense of Davis & Fay. At this time the balance due Beardsley for material was $1,000.
    The contract provided that when the houses were all complete, the sum of $8,181 should be paid to Davis & Fay, which was to be the last payment. Cook made various advances upon the final payment, and at the time he took the contract off the hands of Davis & Fay there remained in his hands on account thereof §990.35, no portion of which bad then become due. His expenditures in completing the contract amounted to §677.17.
    Upon the close of the trial of an action brought by Beardsley against Cook to recover, on the accepted order, the balance due him for materials, the attorney for Cook asked the court to direct a verdict for Beardsley for tlie amount remaining in the hands of Cook, namely, $318.08. Beardsley moved that the damages be fixed at $1,000 and interest, which was done.

      Held, that the rule of damages adopted by the trial court was correct; that the accepted order was an assignment pro tanto of the final payment, and that the right of Beardsley to recover upon it could not be defeated by any act of Cook;
    That the right of Beardsley to recover for materials furnished on the faith of the order could not be defeated by payments made in anticipation of the last payment becoming due, and that if Cook made such payments it was upon his own risk.
    Appeal by the defendant, George II. Cook, from a judgment of tlie Supreme Court in favor of the plaintiff, entered in the office of tlie clerk of the county of Dutcliess on tlie 24th day of December, 1894, upon the verdict of a jury rendered by direction of the court after a trial at the Dutchess County Circuit, and also from an order hearing date December 24, 1894, and entered in the office of the clerk of the county of Dutchess, denying the defendant’s motion to reduce the verdict rendered herein.
    The contract sued upon herein provided that payments thereunder should be made in the- following manner: $200 when first beams are on; $500 when roof is complete and cornice up; $500 when stud partitions are set; $1,000 when standing trim is on; $1,000 when doors are hung, sash in, and plumbing inclosed ; $1,000 when stairs are finished and two coats of paint on; $2,181 when all complete.

      John H. Clapp, for the appellant.

      Safford A. Crummey and Henry Bacon, for the respondent.
   Pratt, J.:

This is an appeal from a judgment entered upon the verdict of the jury directed by the court at a Circuit held in Dutchess county, December, 1894, Mr. Justice G-aynob presiding.

At the close of the testimony counsel for the defendant moved that a verdict be directed for the plaintiff, and fixed the damages at $313.08; counsel for the plaintiff joined in the motion for a direction of a verdict for the plaintiff, but asked that the damages be fixed at $1,213. The verdict was directed for the plaintiff, and the damages were assessed at $1,213. Prom the judgment entered on this verdict the defendant appeals. From the fact that both parties moved that the court direct a verdict, the only question i’elates to the amount for which it ought to have been rendered. It is true that defendant made a motion to dismiss the complaint when plaintiff rested, but he took no exception to a denial of this motion, nor did he move for a new trial on the merits. It seems defendant made a contract with Davis & Fay to build a couple of houses. Davis & Fay made a contract with the plaintiff to furnish them with certain materials, and gave to plaintiff -an order on defendant for $1,175, which he accepted, payable out of the last payment upon his contract with Davis & Fay.

Davis & Fay, relying on the order, ordered and received the material from plaintiff, aggregating $1,000. They failed to complete the contract in time and it was taken off their hands by defendant, who finished the houses himself. This time the balance clue the plaintiff for materials was $1,000.

By the fourth provision of the original contract the owner was authorized to take the contract off the hands of Davis & Fay upon giving three days’ notice, and complete it at their expense. By the third provision of the supplemental contract of February 2, 1891, it was provided that in case of the failure of the contractors to finish the houses as agreed, the defendant might finish them himself at their expense.

The defendant paid Davis & Fay $5,390.75 in all. The payments made were in various amounts, none of them corresponding with the .amounts provided in the contract. On the 18th day of February, 1891, the defendant had completed the sixth payment and had paid fifty dollars more than the total amount of the six payments. Thereafter he made the following payments: February twenty-eighth, $100; March third, $138.75; March fourth, $200; March sixth, $150; March seventh, $200.; March thirteenth, $150; March fourteenth, $100.

This left in his hands $990.25 of the final payment, no portion of which had then become due. His expenditures in completing the contract amounted to $677.17, and left a balance in his hands amounting to the sum of $313.08.

"With the proofs establishing without dispute these facts, the plaintiff rested.

Thereupon, the counsel for the defendant moved for a dismissal of the complaint on the ground that the plaintiff had shown that there was no part of the last payment of the contract that ever became due to the contractors, and that it was incumbent on him to show that that last payment, or some part of it, became due before he can recover, “ but by their testimony they show that the only amount of money remaining in the hands of the defendant is $313.08.” This motion was denied. The defendant did not take any exceptions to this ruling, but moved the court to direct a verdict for the plaintiff for the amount remaining in the hands of the defendant, $313.08, and plaintiff moved damages be fixed at $1,000 and interest, which was done.

The rule of damages adopted by the court was the correct one. It restricted the plaintiff’s recovery to the value of the material furnished by him and put in the buildings of the defendant. The defendant took possession of the buildings, and elected to complete the contract himself, as he lawfully might. When they were completed, lie was entitled to charge as against tlie last payment tlie amount it cost him to complete the contract from the time he took it. This would hare left in his hands $1,503.38. Tlie accepted order was an assignment pro tanto of the final payment, and the right of the plaintiff to recover upon it cannot be defeated by any act of the defendant. This right of the plaintiff was paramount to the right of Davis & -Pay in,tlie final payment, and to any right which could be acquired by any materialman or creditor of Davis. & Pay.

It will be observed that all disputed payments made to Davis & Fay, sought to be charged to the last payment, were niade before any final payment- became due. Defendant cannot be permitted to defeat the right of the plaintiff to recover for materials furnished on the faith of this order, by payments made in anticipation of the last payment becoming due; if he made such payments, it was upon his own risk.

The order was an assignment pro tanto, and the defendant had no right to make payments in advance of their falling due, and before lie took the work out of the contractors’ hands, to the prejudice of the plaintiff. It seems to follow that the rule laid down by the Court of Appeals in this case, reported in 143 N. Y. 143, is not applicable. It also plainly appears that after deducting the cost to defendant of finishing the contract there was more than the amount of the order remaining of the contract juice, which should have been credited to the last payment.

While there is no conclusion of fraud charged or proved, I think, under the circumstances, the defendant had no right to make advances to Davis & Pay to the prejudice of the plaintiff, and charge the same to the last payment under the contract. I, therefore, feel constrained to affirm the judgment, with costs-.

It is also to be noted that the payments were made without any certificate of the architect.

Brown, P. J., and Dykman, J., concurred.

Judgment affirmed, with costs.


text:
    Arthur W. Sweezy, Appellant, v. Henry C. McBrair, Respondent.

      Injunction — proprietary medicine — when using it and advertising its use will not be enjoined.

    In an action "brought to restrain the defendant from using and advertising a certain preparation known as “ Hypodontine,” prepared by .the plaintiff as a local anaesthetic for the painless extraction of teeth, it appeared that the plaintiff sold a bottle of the mixture without placing any restrictions upon the purchaser, and it came into the possession of the defendant.

      Held, that the defendant, having purchased the genuine article which came from the plaintiff, he had a right to use it as he saw fit, and that there was no just ground for preventing him from either using the article for the purpose for which it was made and sold, or advertising it for that purpose.
    Appeal by the plaintiff, Arthur W. Sweezy, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Orange on the 12th day of February, 1895, upon the decision of the court rendered after a trial at the Orange Special Term dismissing the complaint.

      Gilbert O. Hulse, for the appellant.

      Vanamee, Watts & Vail, for the respondent.
   Pratt, J.:

This is an appeal from a judgment rendered at the Orange Special Term dismissing the complaint.

The action was brought to restrain the defendant from using and advertising a certain preparation known as “Hypodontine,” prepared by the plaintiff as “ a local anaesthetic for the painless extraction of teeth.”

The plaintiff sold a bottle of this mixture and it came into the possession of the defendant, who advertised that he used the same in the extraction of teeth. Undoubtedly the word may have been a valid trade mark, and if the defendant had made or advertised and exposed for sale a spurious article he might have been enjoined, but that is not this case. Here the defendant advertised that he used the genuine article and it was sold by the plaintiff. Having purchased the genuine article from the plaintiff he had a right to use it as lie saw fit. When the plaintiff sold the article he did so without placing any restriction upon the purchaser, and we cannot see any just ground for preventing the defendant from either using the article for the purpose for which it was made and sold, or advertising it for that purpose.

Again, it was an article that no one but a dentist could use, and the plaintiff must have inferred when he sold the article that it was wanted for and was to be used by a dentist.

The judgment should be affirmed,.with costs.

Dykman, J., concurred; Brown, P. J., not sitting.

Judgment affirmed, with costs.


text:
    The Leibinger & Oehm Brewing Company, Respondent, v. Frederickc H. Ernst, Appellant.

      Money had and received — direction to aqoply — when it may he disregarded.

    One Luhersen, who had verbally contracted to sell a saloon to one Shoeffel, and was paid twenty-five dollars on account of the purchase, subsequently executed a written conveyance of the saloon, for the consideration of 8100, subject to a mortgage of 81,000, held by the Leibinger & Oehm Brewing Company, and left it with the defendant, who was his attorney, to be delivered to Shoeffel Thereafter, Shoeffel and his attorney called on defendant to receive the conveyance, and stated to him that Luhersen had agreed that the unpaid balance . of the purchase money might be applied to reduce the mortgage. Defendant replied that he had not been notified of such agreement, but, on receiving the seventy-five dollars, delivered to Slioeffel’s attorney the following paper:
    “Received from Martin 1?. Luhersen the sum of §75, to be paid to Leibinger & Oehm Brewing Company, Brooklyn, N. Y., as part payment for goods sold and delivered by said Brewing Co. to said Luhersen. FREDERICK H. ERNST.”
    Luhersen denied that he had agreed to apply the seventy-five dollars to reduce the mortgage, and insisted thgt it was to be paid to him, which was done. The brewing company demanded of Ernst the seventy-five dollars, which he refused to pay.
    In an action brought by the' brewing company against Ernst to recover the seventy-five dollars, no proof was offered that Luhersen had, in fact, agreed to apply the seventy-five dollars upon the mortgage. Testimony offered by the defendant, to show that Luhersen never did so agree, was excluded, and the court, holding that the receipt was a contract that could not be modified by parol, directed a verdict for the plaintiff.

      Held, that, even had the money in fact been placed into Ernst’s hands, with instructions to pay it to the brewing company, Luhersen, who was Ernst’s principal, could have countermanded the order at any time before it was paid over;
    That the agreement to apply the seventy-five dollars on the mortgage was a naked promise without consideration to support it, and that the plaintiff had not established a cause of action.
    Appeal by the defendant, Frederick II. Ernst, from a judgment of tlie Supreme Court in favor of tbe plaintiff-, entered in tlie office of tlie clerk of tlie comity of Kings on tlie 18th day of January, 1895, upon tlie verdict of the jury rendered by direction of the court after a trial at the Kings County Circuit, and also from an order entered in the office of the clerk of tlie county of Kings on the 18th day of January, 1S95, denying the defendant’s motion for a new trial made upon the minutes.

      Hermon H. Shook, for the appellant.

      M. Hallheimer, for the respondent.
   Pratt, J.:

In the early part of J une, 1894, Luhersen verbally contracted to sell a saloon to Shoeffel, and was paid twenty-five dollars on account of the purchase. On June fourteenth Luhersen executed a written conveyance of tlie saloon for the expressed consideration of $ 100, subject to a mortgage of $1,000, and left it with the defendant, his attorney, to be delivered to the purchaser. On the sixteenth the purchaser and his attorney called on defendant to receive the conveyance, and stated to him that Luhersen had agreed that the seventy-five dollars unpaid balance of purchase money might be applied to reduce the mortgage. Defendant replied that lie had not been notified of such agreement, but, on receiving the seventy-five dollars, executed and delivered to the attorney of the purchaser a paper as follows:

“New YoRK, 'June 16th, 1893.
“Received from Martin F. Luhersen the sum of $15, to be paid to Leibinger & Oehm Brewing Company, Brooklyn, N. Y., as part payment for goods sold and delivered by said Brewing Co. to said Luhersen. FREDERICK H. ERNST.”

Later, when Luhersen saw defendant, he denied that he had agreed to apply the seventy-five dollars to reduce the mortgage, and demanded that it be paid to him, which was done.

When tbe seventy-five dollars was demanded by the brewing company defendant refused to pay, and this action was brought.

On the trial the principals and attorneys were all examined as-witnesses. No proof was offered that Luhersen had in fact agreed to apply the seventy-five dollars upon the mortgage.

The defendant sought to show that Luhersen never did so agree, and the testimony was excluded.

The defendant testified that at the time he gave the receipt he stated that he had no personal knowledge of the arrangement to apply the seventy-five dollars on the mortgage, and would not pay it over without the authority of Luhersen. But the court held that the receipt was a contract that could not be modified by parol, and directed a verdict for the plaintiff.

Numerous objections are urged to this ruling. One apparently well taken is that the agreement to apply the seventy-five dollars on the mortgage seems to be a naked promise. No consideration moved to defendant, nor is any shown to have moved to his principal. It is not claimed that Luhersen ever authorized defendant to make the promise. And if it be, as was sought to be shown, that Lubersen never agreed to apply the seventy-five dollars on the mortgage, plainly the defendant would have had no ground to refuse to pay that sum to Luhersen on his demand.

The seventy-five dollars in defendant’s hands was received by him as attorney, which was known to all parties. Had the money in fact been placed in defendant’s hands as recited in the receipt, with instructions to pay it to plaintiff, Luhersen could have countermanded the order at any time before it was paid over. 'Nor is there any evidence that plaintiff ever changed its position in reliance upon the receipt.

Upon the whole ease we are of opinion that the plaintiff did not establish a cause of action, and that the judgment must be reversed and a new trial ordered, with costs to abide the event.

Brown, P. J., and Dykman, J., concurred.

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


author: Pratt, J.: Brown, P. J.:

text:
    Asa L. Rogers, as Assignee for the Benefit of Creditors of The Rogers Manufacturing Company, v. Charles E. Pell and Others.

      Gorporation — resolution authorizing the president to convey its property to “a proper person" — will not authorize a conveyance to himself.

    The board of directors of a corporation, by a resolution duly passed by it, authorized its president to nominate a proper person and to execute to him an assignment of all the property of the corporation. Thereafter the president executed in the name of tlie corporation an instrument which purported to convey to himself, as assignee, the property of the corporation.

      Held, that in the selection of an assignee the corporation had a right to the unbiased discretion of its president, which could not be had when he occupied the antagonistic positions of grantee and active agent of the grantor, and that the effort of the president to vest the title in himself failed.
    Brown, P. J., concurred in result.
    MotioN by tlie plaintiff, Asa L. Rogers, as assignee, etc., for a new trial upon a case containing excejitions, ordered to be beard at tlie General Term in the first instance.
    This case came on for trial at the Kings County Circuit, and after the tailing of testimony the court directed a verdict for the plaintiff, upon a stipulation by the plaintiff that upon a motion for a new trial the court might not only set aside the verdict but dismiss the complaint or direct a verdict for the defendant. A motion for a new trial having been made, the court set aside the verdict, dismissed the complaint and directed the exceptions of the plaintiff to be heard in the first instance at the General Term.
    This action was brought by the plaintiff, as assignee for the benefit of creditors of the Rogers Manufacturing Company, against the sheriff of Kings county, to recover the value of certain lumber, timber and wood-worldng materials and chattels alleged to have been wrongfully removed from plaintiff’s possession by said sheriff and sold at public auction. Tlie sheriff’s indemnitors were substituted in his stead, and their answer alleged that the assignment for the benefit of creditors was void in not being made in conformity with the statutes of the State of New York; that it was made with intent to hinder, delay and defraud creditors of the corporation, and that the property levied upon was taken by virtue of attachments granted, in actions brought against the corporation by certain creditors thereof, and that the property so taken was the property of the corporation aird not the property of the assignee.

      John Larkin, for the plaintiff.

      H. G. Atwater, for defendants Thomson, and others.

      Andrew Shiland, Jr., for defendants Pell, Dannat, Shultz, Ross and P. W. Scribner Lumber Co.

      Thaddeus D. Kenneson and Asa A. Alling, for the defendants Eppinger, Russell, Cyriax and Reeves.
   Pratt, J.:

The assignment under which plaintiff claims is sought to be sustained by virtue of a resolution of the directors of a corporation, by which they authorized their president to nominate and execute to a proper person an assignment of all the property of the corporation.

Thereafter he executed in the name of the corporation an instrument which purported to convey to himself, as assignee, the property which was afterwards attached by the defendants.

The validity of the instrument is attacked on various grounds, one of which is that, under the resolution, the president could not lawfully execute a conveyance to himself.

It is also suggested that the power to select an assignee was not one which the directors could delegate.

We think it clear that, in the selection of an assignee, the corporation had a right to the unbiased discretion of its officer. That could not be had when he occupied the antagonistic positions of grantee and the active agent of the grantor.

What would have been the result had the resolution left nothing to his discretion, and designated the president as the assignee, we need not discuss.

In that case it might be agreed that in substance the assignment was the work of the directors and the president but a ministerial agent. But in the present case the assignment was the work of the president. We think the effort to vest the title in himself failed.

It follows that the attachments were a valid levy on the property of the corporation, and the exceptions should not be sustained.

LvkmaN, J., eoncuiTed.

Brown, P. J.:

I do not concur in the conclusion of Judge Pbatt, that the assignment is void because made to the president of the corporation. The execution of the assignment was authorized by a resolution of the trustees, and the president empowered to select the assignee. Assuming that the selection of himself by the president as the assignee was not within the terms of the resolution, its execution of the assignment was not a void act. The president was not prohibited from being assignee by any rule of law or by-law of the corporation. If not authorized by the resolution, his selection was a thing the trustees could ratify, and as they do not question the validity of his selection, I do not think creditors can successfully assail the assignment on that ground. The deed may have been voidable at the option of the corporation, but it certainly was not void.

Neither do I agree with the contention that the assignment is void for the reason that the certificate of acknowledgment is defective. The testimony is uncontradicted that it was acknowledged in the State of New Jersey. The statute of this State does not require the certificate of acknowledgment to appear upon the assignment; all that is required is that it be acknowledged. Every fact, however, which is essential to a valid acknowledgment appears in the two certificates signed by the master in chancery. The two certificates should be read together in connection with the instrument itself, and so read, I think there is no difficulty in upholding the instrument as a valid deed. (Claflin v. Smith, 35 Hun, 372; Smith v. Boyd, 101 N. Y. 472.)

But there still remains the question whether the instrument was a New Jersey assignment, or made under the New York law. If it is to be treated as a New Jersey assignment, the plaintiff concedes it to be void as against the defendants. This question was, I think, one of fact. The testimony would support a conclusion either way. The defendants asked to have this question submitted to the jury, but tlie court refused. Tbe plaintiff treated the question as one for the decision of the court, and asked for a direction of a verdict in liis favor. The court granted the plaintiff’s motion, and the parties then stipulated that, upon the motion made by the defendants for a new trial, the court, instead of granting a new trial, might direct a verdict for defendants, or dismiss the complaint, and that plaintiff might have an exception thereto. Under this stipulation the court subsequently made an order dismissing the complaint. The plaintiff thereupon moved for a new trial upon his exception, and the motion was ordered to be heard in the first instance at the General Term. Under the stipulation of the parties, the question whether the assignment was intended as a New York or New Jersey deed, was clearly left to the decision of the court, and it was empowered to draw the proper inferences from the testimony and determine the fact.

The case does not show upon what precise ground the court placed its decision, but it may have decided that the assignment was under the New Jersey law. The assignor was a New Jersey corporation, and the assignment was authorized, executed, acknowledged and delivered in that State. The presumption, therefore, was that it was intended to be operative under the New Jersey law. The testimony to the contrary is not so conclusive that we can say that the court erred in so holding, and upon this appeal we must, therefore, assume the fact to be that the deed was a New Jersey instrument.

For these reasons, I concur in a denial of the motion.

Motion for new trial denied, with costs, and judgment ordered in accordance with the direction of the trial court.


author: Dykman, J.: Gaynor, J.*

text:
    The People of the State of New York, Appellant, v. Henry C. Fish, Respondent.

      Llame Law —protection of fish in Richmond county — the hoard of supervisors cannot impose a further restriction or override an act of the Legislature.

    By section 272 oí chapter 488 of the Laws of 1892 (known as the Game Law) all existing- laws and ordinances of boards of supervisors for the protection and preservation of fish, game, etc., with one exception, were repealed.
    Section 273 of said act empowers hoards of supervisors to pass such laws and ordinances as shall afford additional protection to and further restrictions for the protection of game.
    It is further provided by section 188 of said act that “no device except angling shall he placed, drawn or used for the capture of any fish except menhaden in the waters of Karitan bay, nor in any waters adjacent thereto in Richmond county.”
    The board of supervisors of Richmond county afterwards passed, filed and published a law prohibiting the fishing for or catching of menhaden by nets in any of the waters within said county, and making the violation thereof a misdemeanor, and subjecting the violator to a penalty of $100, to be recovered in a civil action brought in the name of the State.
    In an action brought to recover the penalty provided for by the law passed by the board of supervisors, the complaint alleged generally that the defendant caught menhaden with nets “in the waters within the jurisdiction of the county of Richmond.”

      Upon appeal from a j udgment sustaining a demurrer interposed to the complaint,

      Reid, that the Legislature having specially legislated upon the subject, the board of supervisors could not override such legislation;
    That the conclusion to be drawn from the complaint was that it was intended to embrace all of the said waters within the scope of the supervisors’ law, and that defendant was to be liable upon proof that he so caught menhaden in the particular waters mentioned in section 138 of chapter 488 of the Laws of 1892;
    That the demurrer should be sustained.
    Appeal by the plaintiff, The People of the State of' New .York, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Richmond on the 5th day of March, 1895, upon the decision of the court rendered after a trial at the Richmond Special Term sustaining the demurrer of the defendant to the complaint, with notice of an intention to bring up for review upon such appeal an order made at the Kings County Special Term, and entered in the office of the clerk of the county of Richmond on the 19th day of February, 1895, sustaining the demurrer and directing the entry of judgment thereon.

      Edward G. Whitaker, for the appellant.

      Kurzmam & Frankenheimer, for the respondent.
   Dykman, J.:

This is an appeal from a judgment entered upon the decision sustaining a demurrer to the complaint of the plaintiff. The action is-brought to recover from tlie defendant a penalty of $100, for having caught menhaden by means of a net in the waters within the jurisdiction of the county of Richmond, in the State of New York, on the 25th day of July, 1894, contrary to the ordinance passed by the supervisors of Richmond county, and contrary to and in violation of' chapter 488 of the Laws of 1892. The complaint sets forth an ordinance adopted by the board of supervisors of the county of Richmond at their annual session in 1892, by which it is provided that menhaden shall not be fished for, caught or captured in any of' the waters within the jurisdiction of the county of Richmond, by means of nets of any kind, and imposed the penalty of $100 for each offense. It is also alleged that the defendant, in violation of' the ordinance, and contrary to and in violation of chapter 488 of the Laws of 1892, fished for, caught and captured by means of nets, menhaden in the waters within the jurisdiction of the county of Richmond and State of New York, and that by reason of such violation of the statute, the defendant is indebted to the plaintiff in the sum of $100, being the amount of the penalty prescribed by said act or ordinance of the board of supervisors, and the statute cited.

By chapter 686 of the Laws of 1892, familiarly known as the County Law, power is conferred upon boards of supervisors to provide for the protection and preservation, subject to the laws of the State, of wild animals, birds, game and fish and shellfish within the county, and prescribe and enforce the collection of penalties for the violation thereof. Chapter 488 of the Laws of 1892, section 138, provides that no device except angling shall be placed, drawn or used for the capture of any fish excepting menhaden in the waters of Raritan bay, nor in any waters adjacent thereto in Richmond county.”

That section was amended by section 11 of chapter 627 of the Laws of 1894, by adding at the end thereof the following words, and re-enacting the section as originally adopted, by the following addition thereto: “ Except that shad may be taken by shad nets between the fifteenth day of March and the fifteenth day of June, but said nets shall not be allowed to remain in said waters from Saturday at sunset to the following Monday at sunrise.”

Upon the decision of the demurrer the judge at Special Term made a thorough examination of the case and wrote an opinion in which we concur and with which we are entirely satisfied, and we think the judgment should be affirmed, with costs, on the opinion of the judge who decided the demurrer.

Brown, P. J., and Pratt, J., concurred.

Judgment affirmed, with costs, on opinion of the Special Term.

The opinion of the Special Term was as follows:

Gaynor, J.*

I think the complaint does not state a cause of action. By section 272 of the Game Law, which was passed May 5, 1892, all existing laws and ordinances of boards of supervisors for the protection and preservation of fish, game, etc. (with one exception, which need not be specified), were repealed. The next section (273) empowered boards of supervisors to pass “such laws and ordinances as shall afford additional protection to and further restrictions for the protection of birds, fish, shellfish and wild animals, except wild deer, and to prohibit the taking and killing of the same; ” provides for the filing thereof in the office of the county clerk and Secretary of State, the publication thereof, and also that they shall in every case be printed in the volume of the Session Laws for the current year. Section 138 of the same law is a special enactment that “ no device except angling shall be placed, drawn or used for the capture of any fish, except menhaden, in the waters of Baritan bay, nor in any waters adjacent thereto in Bichmond county.” The particular thing to be noted is the exception of menhaden. This section was amended in 1894 (Chap. 627, § 11) by the addition thereto of an exception that shad might be taken by nets during a period of several months in the year. It is provided in the County Law (Chap. 686 of the Laws of 1892), which was passed twelve days after the Game Law, that boards of supervisors may provide for the protection and preservation, subject to the laws of the State, of wild animals, birds and game, and fish and shellfish, within the county, and prescribe and enforce the collection of penalties for the violation thereof” (§ 12, subd. 8). The board of supervisors of Richmond county afterwards passed, filed and published the law set out in the complaint, prohibiting the fishing for or catching of menhaden by nets, in any of the waters within the said county, and making the violation thereof a misdemeanor, and also subjecting the violator to a jaenalty of $100, to be recovered in a civil action in the name of the State; and it is printed in the Session Laws of 1893. The preserrt action is to recover a penalty thereunder. By the aforesaid provision of the Game Law, boards of supervisors are empowered to enact laws making additional restrictions ” for the protection of game and fish, and prohibiting the taking and killing of the same; that is to say, additional to those adopted by the State Legislature. The similar provision in the County Law (already cited) also empowers them to do the like, “ subject to the laws of the State; ” but this express restriction adds nothing, for it would exist without being'expressed; for such local boards get their power to legislate from the State Legislature, and such conferred power is subordinate to the power of the Legislature, for the Legislature may revoke it, or limit it, or override it at will. It follows that if the State Legislature legislate upon a local subject, the board of supervisors may not override such legislation; for otherwise the two bodies could alternately override each other indefinitely upon a given subject. The provisions of State law in question must, therefore, be interpreted as only conferring power on boards of supervisors to enact laws containing restrictions and prohibitions additional to such as are contained in general State laws, or in special or local State laws which it may be seen are not intended to and do not cover the whole subject, or take it exclusively unto themselves; and not laws conflicting with or overriding State legislation on the same subject. It seems to me that the Legislature has by section 138 of the Game Law, taken the subject unto itself in this instance. It prohibits the taking of fish in Raritan bay and the waters adjacent thereto in Richmond county by nets, but expressly excepts menhaden. As the complaint alleges generally that the defendant caught menhaden with nets in tbe waters within the jurisdiction of the county of Richmond ” which is the language of the supervisors’ law, I must conclude that its meaning is to embrace all of the waters within the scope of the supervisors’ law, and that defendant is to be liable herein upon proof that he so caught menhaden in the particular waters mentioned in section 138 of the Game Law (if the said section does not like the supervisors’ law embrace all waters within the jurisdiction of Richmond county). If this is not the intended scope of the complaint, it should have designated the particular locality of the alleged violation, so as to show in fact a violation of the supervisors’ law, and thus allege a cause of action, and not a legal conclusion. In 1894, the Legislature so amended the said section 138 as to also except shad during a part of each year. May the board of supervisors, nevertheless, altogether prohibit the taking of shad by nets ? The case as to menhaden is not different. Shad is excepted part of the year; menhaden ‘the whole year. If the Legislature were also to except shad the whole year, the board of supervisors would not thereby be enabled to prohibit the taking of shad by nets; and that is now the case in respect of menhaden.

The demurrer is sustained.


author: BrowN, J.:

text:
    Ezra A. Osborn, Respondent, v. The Montelac Park and Others, Defendants; Elnathan T. Field and Chester Huntington, as Receiver of The Greenwood Lake Improvement Company, Appellants.

      Dissolution of a corporation — decree void if jurisdictional facts be not alleged — a corporation may loan its credit to its %iresident.

    The court luis no general j urisdiction of an action brought for the dissolution of a corporation ; its power in that respect is derived solely from the statute, and unless the complaint in an action brought to dissolve the corporation shows the jurisdictional facts, the court has no power to act, its decree is void, and the corporation still exists.
    Where the jurisdictional facts are not alleged in the complaint in such an action, and judgment in such action is entered dissolving the corporation, the judgment may be treated as valid so far as it relates to the sequestration of the property of the corporation, but so far as it purports to dissolve the corporation it is a nullity.

      The cases in which an action to dissolve a corporation may he maintained arc set forth in section 1785 of the Code of Civil Procedure, and the persons who can maintain such an action are stated in section 1786 thereof.
    There is nothing malum in se or malum prohibitum in the act of a corporation in lending its credit to its president, or in mortgaging its property for his debt. The stockholders are the equitable owners of the corporate property, and if they do not object and no rights of creditors intervene, there can be no legal objection to the mortgage.
    Appeal by the defendants, Elnatlian T. Field and Chester Huntington, as receiver of The Greenwood Late Improvement Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Orange on the 23 d day of February, 1895, upon the decision of the court rendered after a trial at the Orange Special Term.
    This action was brought to foreclose a mortgage given to the plaintiff by one McDowell as part of the purchase money of premises conveyed to him by the plaintiff.

      Frcmois Lawton, for the appellants.

      Eldon JBisbee, for the respondent.
    Present — Dykman and Pratt, JJ.; Brown, P. J., not sitting.
   Judgment affirmed with costs, on opinion of trial judge.

The opinion of the trial judge was as follows :

BrowN, J.:

The mortgage in suit was executed and delivered to plaintiff; on September 8, 1881, by William 0. McDowell, who at that date held the title to the mortgaged premises.

The amount due thereon is agreed upon between McDowell and the plaintiff at $11,000, with interest from July 1, 1894, amounting at this date to $11,615.42.

The title to the land at the commencement of this action was in the Montelac Park.

None of the defendants have answered except the defendants Field and Huntington. The latter defendant, as receiver of the Greenwood Lake Improvement Company, attacks the mortgage on the ground that the mortgaged premises were, at the date of the mortgage, owned by the corporation, and that the mortgage was executed by McDowell as president thereof, without authority, and to secure his individual debt.

It appears that prior to 1884 the Greenwood Lake -Improvement Company had the title to the land. McDowell was its president and the plaintiff was its treasurer. McDowell individually was indebted to the plaintiff, and by three separate deeds the land was conveyed to the plaintiff as security for the debt due to him from McDowell. '

On September 8, 1887, the property was conveyed to McDowell, and he thereupon executed the mortgage in suit.

In February, 1888, McDowell conveyed the land to the improvement company. This deed was made “subject to two certain mortgages.”

In November, 1888, the property was conveyed by the improvement company to Frank Osborn, subject to the mortgage in suit.

Subsequently, the company was reinvested with the title, and, on December nineteenth, it was conveyed to Sherman "W. Knevals, who thereafter conveyed it to the Montelac Park, subject to the mortgage.

Neither the Montelac Park nor the improvement company, nor any stockholder or creditor of the latter corporation, questions the validity of the mortgage, and the sole question before the court is whether the defendant Huntington, as receiver, may assail the validity of the mortgage, upon the ground that it was given to secure an individual debt of the president of the improvement company.

I am of the opinion that the court had no jurisdiction to decree the dissolution of the improvement company in the suit in which Huntington was appointed receiver, the judgment roll in which was introduced in evidence.

The power of the court to dissolve a corporation depends entirely upon statute.

The cases in which such an action can be maintained are set forth in section 1785 of the Code of Civil Procedure, and the persons who can maintain such an action are stated in section 1786.

The complaint in Field’s suit, so far as it applied to an action to dissolve the corporation, was defective in every particular required by the statute. Field himself could not maintain a suit to dissolve tlie corporation, and tliere were no allegations of facts in tlie complaint such as are required by section 1785, and no relief of that kind was prayed for.

Tlie court bad no general jurisdiction on the dissolution of tlie corporation. Its power in tliat respect was derived solely from tlie statute, and unless the complaint showed the jurisdictional facts, it had no power to act, and its decree was void. I must assume, therefore, that the corporation still exists.

The judgment in Field’s action may be treated as valid to sequestrate the property of the corporation, but so far as it purports to dissolve the corporation, it is a nullity.

There was nothing malum in se or malumprohibitxom in the act of the corporation in loaning its credit to McDowell or in mortgaging its property for .his debt. The stockholders are the equitable owners of the corporate property, and if they do not object and no rights of creditors intervene, there can be no legal objection to the mortgage. In this case, neither corporation nor stockholders question the mortgage. .The defendant Huntington does not represent stockholders, but creditors only. He is a receiver to sequestrate the corporate property and apply it to the payment of the corporate debts. But it is not shown that there is any present creditor who was such at the time the mortgage was given. There is no proof as to the origin of Field’s debt.

It appears from the judgment roll in the sequestration suit that he recovered a judgment against the company in December, 1892, but, beyond the fact of Ms being a creditor at that time, the court has no information before it.

My conclusion, therefore, is, that the validity of tlie mortgage lias not been impeached and the plaintiff must have judgment of foreclosure in the usual form.


author: Brown, P. J.:

text:
    The Trustees of Union College in the Town of Schenectady in the State of New York, Respondents, v. Dennis Coughlin and Others, as the School Trustees of the First Ward of Long Island City, Appellants.

      Long Island Gity — when the hoard of education is liable on a contract entered into by the school trustees of a ward.

    In an action brought against the school trustees of the first ward of Long Island City to recover for unpaid rent under a lease of certain land and buildings and for the use and occupation of said premises for one year following the termination of the lease, and for damages resulting from the breach of a covenant in said lease whereby the lessees agreed to surrender the premises at the expiration of the term in as good condition as reasonable use and wear thereof would permit; it appeared that the lease was under seal and was executed by the plaintiffs and the defendants’ predecessors in office and that the board of education of Long Island City consented to the execution of the lease.

      Held, that while the contract sued upon was, with the assent of the board of education, properly made in the name of the ward school trustees, still it was, in law, the contract of the board of education, such board being by the charter of Long Island City (Chap. 461 of the Laws of 1871) responsible for all expenses of public instruction within said city, and that the action should have been brought against the board of education, and could not be maintained against the school trustees of the ward.
    Appeal by the defendants, Dennis Coughlin and others, as the school trustees of the first ward of Long Island City, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Queens on the 19th day of November, 1894, upon the report of a referee.

      William P. Stewart, for the appellants.
    Chanler, Maxwell & Philip, for the respondents.
   Brown, P. J.:

The plaintiffs have recovered a judgment against the defendants upon three separate causes of action.

Pirst. For unpaid rent upon a lease for a lot of land and buildings thereon used for school purposes.

Second. For the use and occupation of said premises for one year following the termination of said lease, and

Thvrd. For damages for breach of a covenant in said lease, whereby the lessees agreed to surrender the demised premises at the expiration of the term in as good condition as reasonable use and wear thereof would permit, damages by the elements excepted.

The lease was under seal and ivas executed by and between the plaintiffs and the defendants’ predecessors in office (the board of education of Long Island City consenting to the same), and bears date November 1, 1876, and was for the term of fifteen years at an annual rent of $2,347, the lessees agreeing to pay taxes and water rates as they became due.

On May 1, 1877, by a further agreement, the lessees, in consideration of the lessor making certain alterations in the building, agreed to pay sixty-six dollars additional rent for each year of the unexpired term.

The provisions of the charter of the city (Chap. 461, Laws of 1871), relating to public instruction therein, are not very intelligible, and it is difficult to determine with entire satisfaction the powers of the several officers. It provides that each ward of the city shall be a school district, and that there shall be elected therein three trustees, who hold office for three years, one of whom shall be elected each year. The mayor of the city is authorized to appoint a commissioner of public instruction in each ward, who serve as school commissioners for their respective wards. These commissioners constitute the board of education for the city. The statute enumerates the powers of the board of education and of the school trustees.

The board of education is declared to be a corporation for the purposes of the act, with power to sue and be sued, but the title to all property of the schools, real and personal, is declared to be vested in the corporation of Long Island City.

It is made the duty of the school trustees to manage and conduct the schools of their respective wards, and to make repairs, alterations and additions in and to the school premises, but they are forbidden, without the written authorization of the board of education, to expend more than twenty-five dollars a month.

Sections 13 and 14 of chapter 2 of title 9 of the charter are as follows:

Seo. 13. The board of education may authorize the erection of a new public school house, upon the written application of a majority of tbe trustees for tbe ward. It shall be tbe duty of the-board of education to decide finally upon every such application within thirty days after the same shall be presented to it.”
“ Seo. 14. Upon a decision favorable to the establishment of a school or schools in any of the wards of said city, it shall be lawful for the school officers of said ward to proceed to organize one or more schools, such as may be authorized by the board of education, and procure a school house by purchasing or hiring the same; * * * and the expense of establishing and organizing any school, as above mentioned, shall be paid out of the revenues levied, and raised pursuant to the provisions of this act.”

The testimony is that the demised premises had been used as a school by the city for many years prior to the date of the lease, and in April, 1876, the board of education appointed a committee to act with the trustees of the ward in reference to improved school accommodations for the ward, and on May twenty-third the board adopted a resolution that the total annual rent for that ward should not exceed $3,000. Negotiations appear to have been had with the plaintiffs in reference to improving the school building, with the result that a resolution was finally unanimously adopted that the commissioner and trustees of the ward were empowered to complete the negotiations on the basis of ten per cent upon the outlay to be made by plaintiffs in addition to $1,400 annual rent then being paid for the buildings, and thereafter the lease in suit was executed.

In my judgment this action cannot be maintained against the defendants. The case in this respect is not analogous to an action against school trustees under the general law. Such trustees are quasi corporations, and hold the title to all property of the district, and there is no other body that represents officially the school district which could be sued upon a claim against it. Moreover, the statute authorizes the school district meeting to vote a tax to pay judgments recovered against the trustees, and in case the inhabitants neglect or refuse to vote such tax, provision is made whereby the trustees are empowered to levy it upon the district. Thus, plain provisions of law are made whereby payment of a judgment against school trustees can be enforced. But this is not so in the case before us. The city charter does not contemplate a meeting of the inhabitants of the ward for school purposes at all, and the residents of tlie ward have no duties or powers sucli as exist in tlie ordinary school district. No separate tax can be levied upon tlie wards and there is no separate fund out of which the expenses of the ward schools are to be paid. The ward trustees have no power given them to raise any money whatever, and there is no provision of law whereby, by proceedings against them, payment of a judgment against them can be enforced. They are not declared to be a corporation and are not vested with the title to any of the school property. The board of education is, by the charter, made the responsible body for all expenses of public instruction within the city. For educational purjiosesit is declared tobe a corporation and is charged with the management and control of the schools. Its members are not servants or agents of the city, but public officers exercising such powers as are prescribed by statute, and the city is not liable for its acts. (Ham v. The Mayor, 70 N. Y. 459.)

To it the ward trustees must annually report. It may remove the trustees from office, establish new schools, employ and discharge teachers, designate their duties and fix their salaries, furnish supplies for the schools and school buildings, and no expense in excess of twenty-five dollars per month can be paid by the trustees without its written authorization. The money necessary to meet the expenses of public instruction in the city must be raised by the common council upon the certificate of the board by a tax on the property within the city. The amount necessary for each school is apportioned to it by the board, and no expenses can be paid by the ward trustees except upon the audit of the commissioner for sxrclr ward, and the money can be drawn from the treasury only upon drafts of the board signed by its president and countersigned by the clerk and the commissioner for the ward for which the money is to be paid. These provisions show the controlling character of the board of education over all matters relating to the public instruction within the city, and while I am inclined to the opinion that the contract sued upon was, with the assent of the board of education, properly made in the name of the ward trustees, I think it was in law, and must be treated as, the contract of the board of education. Certainly that body was the only one against whom it could be enforced, and in an action upon the contract the board has a clear right to be heard. The whole responsibility from the inception of the contract to the final payment of tbe rent rests upon that body. Ent if an action can be sustained against the ward trustees, the right to a hearing would be denied to the board; and, as the judgment recovered against the trustees would be conclusive as to the plaintiffs’ right to recover, its payment might be enforced by mandamus against the board, and it would be denied a hearing upon all questions involved in the judgment.

We are of the opinion that the ward trustees are ofiicers charged solely witli the duty of supervising the ward schools. They are a sort of an adjunct to the board of education. They have no independent power to contract except as to small amounts, and are not liable to be sued for the expenses of the schools. All contracts in reference to the public instruction within the city lawfully made, and debts and liabilities lawfully incurred, are the contracts, debts and liabilities of the board of education, which body, in its corporate capacity, is liable therefor.

Our conclusion is that this action should have been brought against the board of education, and that it cannot be maintained against the defendants. We, therefore, refrain from expressing any opinion upon the merits of the controversy.

The judgment must be reversed and the complaint dismissed.

Pratt, J., concurred; Dykman, J., not voting.

Judgment reversed and complaint dismissed, without costs.


text:
    Bessie Moore, Appellant, v. John H. Murphy and Hannah J. Murphy, Respondents.

      Covenant in a deed restricting the me of real property — it cannot he enforced by one who has acquiesced in its violation.

    In an action brought to restrain the erection of a dwelling house which it was alleged the defendants were constructing in violation of a covenant contained in their deed, it appeared that the title of both parties came from a common source; that the deeds conveying the property of both the plaintiff and the defendants contained a covenant that “neither the parties of the second part nor their heirs or assigns, shall or will at any time hereafter * * * erect any dwelling, or other building, within thirty feet of a front line;” that five houses in all had been built upon the restricted property ; that all the piazzas and all of the steps of the said houses were built within the thirty-foot line of the lots, and that three of the houses had bay windows which were within said line.
    The plaintiff’s house was the first one erected. The front wall was placed twenty-nine feet seven inches from the front line of the lot, and the piazza and steps were wholly within the thirty-foot line. The front wall of defendants’ house was thirty feet from the front line of the lot, but there was a bay window which projected three and one-half feet within the thirty-foot line.

      Held, that the plaintiff was precluded from enforcing the covenant against the defendants; that she must either be deemed to have acquiesced in the construction of the covenant that it applied only to the front wall of the main building, and did not restrict the construction of piazzas and bay windows within the thirty-foot space, or else to have acquiesced in repeated violations of the covenant, and in consequence thereof she was not entitled to enjoin a person who had acted upon the assumption that the restrictions were no longer to be observed.
    A person who seeks to enforce such a covenant must suffer no such breach thereof as would frustrate all the benefits that would otherwise accrue to the other parties to the agreement.
    Appeal by tlie plaintiff, Bessie Moore, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Westchester on the 23d day of March, 1895, upon the decision of the court, rendered after a trial at the West-chester Special Term, dismissing the complaint upon the merits.

      Roger M. Sherman, for the appellant.

      Frederick P. Forster, for the respondents.
   Brown, P. J.:

This action was brought to restrain the erection of a dwelling house which, it was alleged, defendant John H. Murphy was constructing in violation of a covenant contained in his deed.

The common source of title of both parties is J. Henry Ilentz, who, in September, 1888, conveyed a tract of land, including the property in question, to the defendant John II. Murphy, and to-Richard M. Winfield and Edward J. Lucas. The deed from Ilentz contained a covenant that “ neither the parties of the second part, nor their heirs or assigns, shall or will, at any time hereafter, * * * erect any dwelling or other building within thirty feet of a front line.”

Thereafter Winfield and Lucas, by quit-claim deed, conveyed the property to Murphy, who, on December 5, 1890, conveyed to plaintiff lots described on a map of said tract as Nos. 86 and 87, and said deed contained a covenant on the part of the plaintiff similar to tbat contained in the Hentz deed.

The map referred to in plaintiff’s deed was made after the deed from Hentz, and it design ated thereon Summit avenue as a street.

Summit avenue was subsequently opened, and plaintiff’s and defendants’ lots fronted thereon. ' The plaintiff’s was the first house erected on the street; the front wall of her house was placed twenty-nine feet seven inches from the front line of the lot, and the piazza and steps were wholly within the thirty-foot. line. The front wall of the defendants’ house is thirty feet from the front line of the lot, but there is a bay window which projects three and one-half feet within the thirty-foot line and the piazzas and steps project further from the house than the piazza and steps on plaintiff’s house.

Pour other houses have been built on the same side of Summit avenue as the plaintiff’s house, all upon the lots included within the property conveyed by the Hentz deed, and it was conceded hy the plaintiff that all of the piazzas and all of the steps on the said houses were built within the thirty-foot line of the lots.

It is the claim of the appellant that the construction of the bay window on defendants’ house was a violation of the covenant contained in the Hentz deed.

If the decision of this appeal depended upon the determination of the question whether the bay window was a part of the building, and, therefore, within the restriction of the deed, I should be inclined to answer it in the affirmative. But the case does not call for a decision of that question.

The parties have given a practical construction to the covenant in the erection of their several dwellings. All piazzas and steps have been placed within the thirty-foot line, and, as I understand the-testimony, at least three houses, besides the defendants’, have bay windows which are within said line. "While that fact is not expressly stated by any witness, it appears to have been assumed throughout the trial. It is so alleged in the answer as to the houses of Low, Lucas and Mulle, and the distance from the front line of the lot. stated as to each.

The defendant Murphy testified as follows: I have measured’ the bay windows of the various houses on that block. They are: all built within the thirty front feet of the lots in every instance, -x- * «- You can sit in the bay window of Mr. Low’s house and see the front windows of the plaintiff’s house.” On cross-examination he was ashed by the plaintiff’s counsel to state how many feet and inches the bay windows of Low’s and Lucas’ houses extended into the thirty-foot space.

The witness Edwin J. Lucas testified: “ The piazza of every house on that block to a certain extent interferes with the view of the other houses. * * * The same thing applies to each and every bay window to a certain extent.” To the same effect is the testimony of the witness Tier.

The plaintiff introduced no evidence to show that there were not bay windows on the other houses on the block, or that they were not constructed within the thirty-foot space, and the testimony I have quoted stands uncontradicted.

These facts, we think, preclude the plaintiff from enforcing the covenant against the defendants. Sire must either be deemed to have acquiesced in the construction of the covenant, that it applied only to the front wall of the main building, and did not restrict the construction of piazzas and bay windows within the thirty-foot space, or else, having acquiesced in repeated violations of the covenant, she is not now entitled to enjoin a person who acts upon the assumption that the restrictions are no longer to be observed. The rule is well settled that a person who seeks to enforce a covenant of this character must suffer no such breach of the stipulation as will frustrate all the benefit that would otherwise accrue to the other parties to the agreement.

It is unnecessary to consider the other questions discussed by the counsel, as, for the reasons above stated, we are of the opinion that the judgment must be affirmed.

Pratt, J., concurred; Dykman, J., not sitting.

Judgment affirmed/with costs.