text:
    FREDERICK SIEBEL, Respondent, v. HENRY COHEN, Appellant.

      Seal Estate—Contract for the conveyance of—Damages for the breach thereof.

    The contract in the case at bar described the lot that was sold and to be conveyed, as “ the lot known as Forty-four Monroe street in the city of New York, said lot being twenty-four feet and eight and one half inches in width, front and rear, by ninety-seven feet and six inches in depth on both sides.” The premises or the lot were in fact only twenty-four feet and three inches in width instead of twenty-four feet eight and one half inches, as called for in the contract, and plaintiff refused to accept a deed, describing the lot as containing a smaller area than that stated in the agreement, and brought action for damages for a breach of the contract.

      Held, that the plaintiff was clearly entitled to a conveyance that would vest in him the title to all the lot described in the contract, and could not be compelled to accept and pay for a lot smaller than that described. The difference of a few inches more or less in the description lines of a city lot, may be most important and valuable, and might cause a difference in pecuniary value exceeding that of acres of farm land. This accurate and full measurement in feet and inches, is a proper description of a city lot, and that by which the parties to the contract must have intended to be bound, and should be held to in this case.
    Before Sedgwick, Ch. J., and O’Gorman, J.

      Decided May 2, 1887.
    Appeal from a judgment in favor of the plaintiff for two hundred and forty-two dollars and fifty cents, entered on a verdict by direction of the court.

      E. S. Arnold, for appellant.

      Otto Meyer, for respondent.
   By the Court.—O’Gorman, J.

The action was brought by plaintiff to recover damages sufficient to include $125, the deposit paid by him on the execution by defendant of a written contract to sell to the plaintiff the lot known as Forty-four Monroe street in the city of New York, “ said lot being twenty-four feet and eight and one half inches in front and rear by ninety-seven feet and six inches in depth on both sides ” and to give a warranty deed with full covenants for conveying the lot.

The premises were in fact only twenty-four feet and three inches in width instead of twenty-four feet and eight and a half inches, as called for in the agreement, and plaintiff refused to accept from defendant a deed describing the lot as containing a smaller space than that stated in the agreement. Plaintiff expended also one hundred dollars for examination of title. The defendant answered, setting up a counterclaim for $1,225,75 damages alleged to have been incurred by him by reason of plaintiff’s refusal to accept the deed tendered to him and pay the balance of purchase money.

The defendant’s contention cannot prevail. The plaintiff was clearly entitled to a conveyance sufficient to vest in him the title to all, not merely a portion, of the lot as described in the contract of sale, and to compel him to pay the whole purchase money for a lot smaller than that described in that contract, would be manifestly unjust.

The cases cited on behalf of the defense, do not seem to me to be in point or controlling. In the purchase of a city lot, the quantity of space can seldom be accurately described by visible metes and bounds, as may be done in the case of the purchase of a tract of farm land. The usual and only accurate and reliable mode of measurement of a city lot is by feet and inches and this measurement is the proper description, and that by which the parties to the contract must have intended to be bound, for the difference of a few inches more or less in the lines within which a city lot is bounded, might cause a difference in pecuniary value exceeding that of acres of farm land.

The direction of the learned trial judge and the verdict rendered thereon, were right.

The judgment must be affirmed, with costs.

Sedgwick, Ch. J., concurred.


source: Caselaw Access Project

author: By the Court.—O’Gorman, J.

license: Public Domain

text:
    CHARLES MAYER, et al., Appellants, v. PHILIP HEIDELBACH, et al., Respondents.

      Bills of Exchange and Negotiable paper—Consideration—Title thereto as against the vendors.

      Held, That under the facts in this case, the Harrisons who bought the bills of exchange from defendants, for the plaintiffs, did not acquire a good title thereto as against the defendants as vendors, but that the plaintiffs became purchasers of the bills from the Harrisons for a valuable consideration, such as would defeat any equitable claim in favor of defendants arising from their transactions with the Harrisons, in the sale of the bills.

      Held, in the case at bar, that the act of plaintiffs in giving checks on Harrison’s Bank in favor of the Harrisons, for the bills in question satisfied and cancelled plaintiff’s claim against the bank, for money due the plaintiffs by the Bank, to the amount covered by the checks, and thereby the bills, then sold and delivered by the Harrisons to plaintiffs, were paid for, and this result was not conditional but absolute, and the defendants became responsible to the plaintiffs for the payment of the bills in question.
    The legal proposition, that on the refusal of the drawee, to pay the bills, an action might accrue to plaintiffs against the Harrisons, to recover the money paid them for the drafts, does not alter the rights of plaintiffs against the defendants. The legal title to the bills was vested in the plaintiffs free from any equities of the defendants.
    Before Sedgwick, Ch. J., Freedman and O’Gorman, JJ.

      Decided May 2, 1887,

      Appeal from a judgment entered on findings of a judge of this court, a trial by jury being waived by consent.

      James G. Foley, for appellants.

      Sterne & Thompson, attorneys, and Simon Sterne and John K. Greevey, of counsel for respondents.
   By the Court.—O’Gorman, J.

The only questions to be now considered, are questions of law. The material facts as found, are as follows. The plaintiffs were, in June, 1884, wholesale merchants, carrying on business in Indianapolis under the firm name of “ Charles Mayer & Co.” They required in their business the frequent use of foreign exchange. They had their bank account and kept a large deposit with a private bank in Indianapolis, called Harrisons’ Bank, of which bank the firm of A. and J. C. S. Harrison were proprietors. The defendants were bankers and dealers in foreign exchange in New York city under the firm name of “Heidelbach, Ickelheimer & Company.” The plaintiffs had, for many years, been in the habit of procuring foreign exchange from the “ Harrisons,” and of paying them for the drafts, when received by them, by drawing checks for the price of the draft, on Harrisons’ bank, against their (plaintiffs’,) deposit in that bank. The Harrisons had been, for many years, dealing with the defendants for the purchase of such foreign exchange as was required by the plaintiffs, and of paying the defendants for their drafts on Europe when received by them (the Harrisons) at Indianapolis, by remitting immediately, and by next mail, their check on a bank in New York city in favor of defendants for the price of the drafts. In June, 1884, the plaintiffs applied to the Harrisons for drafts on Berlin, payable to the order of Charles Mayer .& Co., sending them a memorandum of what they required. The Harrisons thereupon wrote to defendants, indosing plaintiffs’ memorandum with a request in this— their usual form—“ as per inclosed memorandum, send to us your sight draft on Berlin to the order of Charles Mayer & Co. of B. M. $-with statement of cost, and we will remit as usual, etc.” The defendants sent to Harrisons the drafts on Berlin, as required by plaintiffs, and on delivery of them to plaintiffs in Indianapolis, the plaintiffs immediately paid the Harrisons for the drafts, by drawing a check for the amount, according to their custom, on the Harrisons’ bank in favor of Harrisons, against their deposit there, which was then ample in amount to meet the check.

The Harrisons did not pay the defendants according to their custom, by remitting to them by return of mail, check on a New York city bank for the amount of thé drafts sold them, but immediately after the delivery of the drafts to the plaintiffs and the payment for the same by them.to Harrisons, the Harrisons’ bank stopped payment and has been, and is now, insolvent. The drafts were presented to the drawee in Berlin for payment, and payment was refused—and the plaintiffs bring this action against the defendants to recover the amounts of the drafts and ten per cent., in lieu of interest and other expenses, pursuant to statute. On payment by the plaintiffs to the Harrisons for these drafts by check on the Harrisons’ bank, that bank, as was the custom, charged the check against the deposit account of the plaintiffs, and the check was entered in the plaintiffs’ bank book, and the check itself was afterwards returned to the plaintiffs with the bank’s cancelling mark upon it. The plaintiffs had no knowledge of the nature and condition of the dealings between Harrisons and defendants as the purchase of these drafts.

On these facts the questions now arise:

First:—Did the Harrisons acquire a good title to the drafts as against the defendants as vendors ?

Second:—If they did not acquire such title, did the plaintiffs become purchasers of the drafts from Harrisons for a valuable consideration so as to defeat any equitable claim in favor of defendants ?

The learned trial judge held in favor of the "defendants on both questions.

As to the first question there can be little doubt but that the ruling of the learned trial judge was right.

. The invariable custom of dealing between Harrisons and the defendants, was that they should pay defendants for the drafts by return of mail. The drafts in question were sold expressly in accordance with that custom. No credit was extended. The sale was made on expectation of immediate payment. The defendants have still a lien on their drafts and the right to rescind the sale; and their right to follow and reclaim the drafts upon the insolvency of the Harrisons, was an equitable and legal right. Muller v. Pondir, 55 N. Y. 325, 337.

On the second question, the trial judge found also against the plaintiffs, and it is strenuously contended on behalf of the plaintiffs, that the ruling on that point was incorrect. The relations between the plaintiffs and Harrisons’ bank as to the plaintiffs’ deposit, were those of debtor and creditor. The bank owed the whole amount of the deposit to the plaintiffs, and it was payable to their order in cash on demand. The result of their drawing their check on Harrisons’ bank in favor of Harrisons for the price of the draft, was to cancel their claim against the bank to that extent and reduce the amount of their deposit. The claim of Harrisons against the plaintiffs for the price of the drafts was also satisfied, and was thus, as it seems to me, equivalent to actual and bona fide payment in cash for the drafts.

Under the English authorities such a transaction would have given to the plaintiffs all rights of a purchaser for a valuable consideration. Daniels on Negotiable Instruments, §§ 827, 828, et seq.

The rule laid down in the leading cases in New York, is that to constitute the transferee of a negotiable instrument a purchaser “ for value,” so as to protect him against defenses available against his transferer, he must pay something in money or property—some subsisting debt must be satisfied or suspended, or new responsibility incurred ; and that the mere transfer of the paper as collateral security for an antecedent debt or liability does not, _per se, place the transferee on the superior footing of a holder for value. Daniels on Negotiable Instruments, where various leading New York decisions are collected. § 831, C. The question was further examined in Phœnix etc. Co. v. Church, 81 N. Y. 221 (1880). The court there, after an exhaustive review of the authorities in this state, thus expressed its opinion :—

“ In view of this long line of authorities, it must be regarded as the settled doctrine in this state, that the surrender by a creditor of the past due notes of a debt- or, upon receiving from him, in good faith, before maturity, the note of a third pérson, in place óf the note surrendered, constitutes the creditor a holder for value of the note thus taken, and protects him against the defenses and equities of the antecedent parties, and that it is immaterial whether the note surrendered was given to the creditor for goods sold, or money loaned, or under circumstances, which would leave the original debt represented-by the note in existence, enforceable against the debtor, or whether by surrendering the note the creditor parted with his entire right of action.”

In the case at bar, the act of giving plaintiffs checks on Harrisons’ bank in favor of Harrisons, satisfied and cancelled plaintiffs’ claim against the bank for money due the plaintiffs by the bank, to the amount covered by the checks; and by that act also, the drafts then sold and delivered by Harrisons to the plaintiffs, were paid for and this result was not conditional but absolute.

That on the refusal of the drawee of the drafts to pay them, an action might accrue to plaintiffs against Harrisons to recover the money paid them by the plaintiffs on the purchase of drafts which turned out worthless, does not alter the rights of plaintiffs against the defendants.

In the extract from the opinion of the court given above, this contingency seems to have been considered and dismissed as unimportant. See also Pratt v. Coman, 37 N. Y. 442.

There can be no question as to the bona tides of the plaintiffs in the case at bar or of the intention of them and Harrisons that full title in the drafts should be conveyed' to the plaintiffs in consideration of the payments made them in the usual way—that is, by checks against their deposit in the Harrisons’ bank. That was the method of payment invariably adopted by them. It was not a nominal payment only, but actual, sufficient, final, and conclusive; and Harrisons’ bank have now in their hands the money of plaintiffs which the checks represented. Before receipt of these checks, they owed that money to the plaintiffs. On delivery to plaintiffs of the drafts, that money ceased to be due by them to the plaintiffs, but became the money of the Harrisons by means of the plaintiffs’ check given to the Harrisons.

The antecedent debt of the bank to plaintiffs was so far absolutely satisfied, and that constitutes a valuable consideration. Rome Bank v. Craig, 102 N. Y. 336.

This is a case where one of two innocent parties must suffer. Both acted in equal good faith. The plaintiffs acquired the actual possession of the drafts by the act of the defendants. The plaintiffs paid for the drafts to the person who had the apparent ownership of the drafts and apparently full title to transfer them. The transfer by him x to them, was, as such transfers had always been made. The plaintiffs’ payments for the drafts to their transferer was exactly as such payments had invariably been made theretofore. In my opinion, the plaintiffs claim is superior to that of defendants, and the legal title to the drafts was vested in them free from any equities in the defendants.

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

Sedgwick, Ch. J., and Freedman, J. concurred.


text:
    THE NATIONAL OLEO METER COMPANY, Respondent, v. WALTER M. JACKSON, Appellant.

      Practice—Examination of papers before trial, agreeably to section 803 of the Code.

    Where on a motion for the examination of papers before the trial, under section 803 of the Code, the plaintiff avers under oath that he is advised and verily believes that the papers are in the possession or under the control of defendant, and the defendant does not deny the fact, the court is justified in believing that he has it in his power to produce them, and will order accordingly if the case is otherwise complete, and in eompli- - anee with said section 805.
    Before Sedgwick, Ch. J., Freedman and O’Gorman, JJ.

      Decided May 2, 1887.
    Appeal from an order of the special term granting plaintiff’s motion for an inspection of certain written •agreements in the possession or under the control of the defendant.

      Isaac Angel, attorney, and William Stone, of counsel, for appellant.

      Edmund Coffin, Jr., attorney, and George C. Holt, of counsel, for respondent.
   By the Court.—O’Gorman, J.

This is an appeal from an order granting plaintiff’s motion for' an inspection of certain written agreements, which plaintiff is advised and verily believes are in the possession or under the control of the defendant, and are material and necessary to the plaintiff’s cause of action and defence against defendant’s counterclaim upon the trial. Plaintiff also avers that it cannot safely proceed to trial without them or a sworn copy of them. Defendant, in his answer to the plaintiff’s petition, avers that the agreements, examination of which the plaintiff desires, if ever executed, were in duplicate, and that a duplicate original should be in the hands of a corporation known as the “ Ehode Island Companyand that the officer of that company can be examined outside the state by commission. On these statements the defendant objected to the granting of the order, because:—

First: The petitioner did not swear absolutely, but only on his belief, that the agreements were in the possession or under the control of the defendant. This objection is not well taken. The defendant does not deny that the agreements were under his control, and the court is justified in believing that he has it in his power to produce the agreements under the order. The plaintiff has given satisfactory proof by affidavit in compliance with Code, § 805. The fact that a duplicate original shpuld be in the hands of a corporation in Ehode Island should not absolve the defendant from producing the copy in his possession, or certainly under his control.

The objection that the agreements are not material to the issues to be tried in the action and would not, if produced, contain evidence relevant or admissible is equally without merit. The action is brought to compel specific performance of a contract, the existence of which is admitted by the defendant, that he would assign to a corporation called “ The Standard Hydro Carbon Machine Co.” all such patents as he should obtain for improvements in the manufacture and use of gas. The plaintiff company claims to have succeeded, by assignment, to all the rights of the “ Standard &c. Co.” ' The defence is that the “ Standard &c. Co.” had failed to pay the expenses incurred by defendant in making experiments, &c. To-this, plaintiff replies that, by agreements in writing between the defendant and the said “Rhode Island Company” and others, and the defendant, 2,800 shares of stock in the “ Standard &c. Co.” were placed in the hands of the defendant for the purpose of selling the same at a fixed price, and holding the proceeds for the benefit of the “Standard &c. Co.”; that he did sell these shares, and that the sale thereof ought to have produced $13,000, all of which sum he should have held in trust for the “ Standard &c. Co.,” of which he was at the time a trustee and the president; and that out of these moneys in his hands belonging to the company, he 'should have defrayed the expenses of his experiments and taking out patents.

The purport and effect of these agreements, entered into with defendant for. the benefit of the “ Standard &c. Co.,” would be material and relevant to the issue whether or no the “Standard &c. Co.” had failed to pay defendant’s expenses, or whether he had not moneys belonging to that company placed in his hands in trust, and which he could have legitimately applied to the payment of the expenses, for which he avers he received no payment from that company.

The plaintiff’s petition seems to have been presented in good faith, and the order, granting its prayer should be sustained.

The order is affirmed with ten dollars costs.

Sedgwick,. Ch. J., and Freedman, J., concurred.


author: By the Covet.—U’Gorman, J.

text:
    LOUIS H. ALLEN, et. al., Plaintiffs, v. AUGUSTUS BAUS & COMPANY, Defendant.

      Contract—Construction of a clause thereof in regard to certain acts establishing prima facie evidence of the genuineness of other contracts named therein.

    The plaintiffs contracted in writing with defendants to procure contracts with publishers of weekly newspapers for the publication'of copies of defendants’ business cards, and to assign such contracts to defendants. This contract also provided, that if requested by defendants, the plaintiffs should furnish the defendants with an affidavit to the effect that each of the proposed contracts was in all respects genuine, but if no such request was made within ten days after the delivery of any such contract the affidavit should be considered as waived, and “ any such publisher’s contract shall, in either event, be accepted as prima facie evidence that it is in all respects genuine.”

      Held, that this provision in regard to the acceptance of the contracts, as “prima facie evidence” of its genuineness, did not relieve the plaintiffs from due proof, that each of the papers presented was a publisher's contract and duly executed, as is required in every other case where a paper purporting to be a contract is offered in evidence, and objected to, or not admitted by the opposing party.
    The laws of evidence are rigid, and the courts will not allow them to be superseded or relaxed by the terms of a contract, unless the contract . is positive and free from ambiguity and not against public policy. In the case at bar the proper construction of the contract is, that it does 0 not provide that any paper presented shall be of itself prima facie evidence that it is genuine, but only such a paper as shall be a publisher's contract, and that fact should be proved in the case.
    Before Freedman, and O’Gorman, JJ.

      Decided May 2, 1887.
    Motion on the part of the plaintiffs for a new trial on exceptions ordered to be heard in the first instance at general term.

      Arthur G. Palmer and Daniel G. Briggs, of counsel for plaintiffs.

      Ashbel P. Fitch, for defendant.
   By the Covet.—U’Gorman, J.

The plaintiffs are partners doing business as advertising agents in the city of New York. The defendants are a corporation engaged in the manufacture of pianos in that city. In November, 1885, the plaintiffs entered into a contract in writing with the defendants to procure for defendants contracts with publishers of weekly newspapers in the United States, not to exceed in number one thousand, for the publication in their newspapers of copies of defendants’ business card for a period of six months. For procuring these contracts, plaintiffs were to receive, in each instance, five dollars from the defendants. In each instance, the contract was to be made between the publisher and the plaintiffs, in a specified form agreed on between plaintiffs and defendants, and in each instance, that contract was to be assigned to defendants by the plaintiffs, by indorsement on the contract. The contract between the plaintiffs and defendants also provided that, if requested by “ Baus & Co.” (the defendants), a member of the firm of Allen Bros.,” shall furnish the assignee (the defendants) with an affidavit stating that he verily believes said contract to be in all respects genuine ; but if such request he not made within ten days after delivery of any such contract, the affidavit shall be held to be waived, and any such publisher’s contract shall in either event, be accepted as prima facie evidence that it is, in all respects, genuine.

The plaintiffs did procure certain contracts with publishers and delivered them duly assigned to the defendants, and were paid for the same at the rate provided for in the contract.

Subsequently, however, in May, 1886, plaintiffs tendered to the defendants papers purporting to be four hundred and twenty of such contracts, duly assigned to them, with copies of newspapers containing defendants’ advertisement, but the defendants refused to accept said papers, or any of them. No request was made by defendants for any affidavit of a member of plaintiffs’ firm. The plaintiffs have brought this action against the defendants for this alleged breach of contract.

At the trial, the plaintiffs’ counsel offered, as evidence, 420 papers which he claimed to be 420 contracts with publishers, and 420 newspapers, said to contain the advertisements of defendants’ business, as called for by the contracts. Objection was made by defendants’ counsel to the admission of these papers in evidence, without the usual proof of the due execution thereof as required by law.

The objection was sustained and exception taken on behalf of the plaintiffs.

The learned trial judge held that the contracts should be proved to be publishers’ contracts. The question to be considered on this appeal is, whether by the special terms of the agreement between plaintiffs and defendants that “any such publisher’s contract shall be accepted as prima facie evidence that it is in all respects genuine”; the law and rules of evidence are in this case to be superseded by a rule made by the parties and specially applicable to this case.

Before deciding that question in the affirmative, this court should be well satisfied that such was the actual intention of the parties, as ascertained by a careful and strict construction of the language and purpose of the contract itself.

The result of this interpretation of the contract would be, that on presentation to the defendants of each paper purporting to be a publisher’s contract with the affidavit of one of the plaintiffs’ firm (if requested) that he verily believed the contract to be, in all respects, genuine, the defendants would be bound to accept the contract as prima fade genuine, and pay plaintiffs for each contract five dollars. The defendants would also be bound, as provided in the contract between them and the plaintiffs, to provide each publisher with a piano of defendants’ make, of which the regular price was $900 cash, for $250 cash. If that, however, were the actual agreement, the defendants were, of course, bound by it.

The question here is what are the proper construction and interpretation of these words in the contract:— “Any such publisher’s contract shall be accepted as prima facie evidence that it is, in all respects, genuine.”

The first essential quality of the paper presented was clearly that it should be a publisher’s contract, and unless that fact were admitted or proved, the paper was not admissible as prima facie evidence of anything, even as between the parties; and it could not be admitted as evidence at a trial, in a court of law, without due proof according to law, that it had been duly executed by a publisher.

The learned trial judge so held, and his ruling was right.

The laws of evidence in courts of justice are rigid, and their wisdom and efficacy have been tested and proved by long use. To allow them to be superseded or relaxed to meet a special case, would be to unsettle established rules, and therefore the courts will not permit it to be done by contract, except where the contract is positive and free from ambiguity and not against public policy.

In the case at bar, however, the proper construction of the contract renders all such antagonism unnecessary. The contract does not provide that any paper presented to defendant by plaintiffs shall be, of itself prima facie evidence that it is genuine, but only such paper as shall be a publisher’s contract; and that fact should have been proved in the case at bar, as is required in every other case, where a paper purporting to be a contract is put in evidence.

Plaintiffs’ exceptions should be overruled and judgment absolute ordered for defendants, dismissing plaintiffs’ complaint with costs.

The appeal from the order dismissing the complaint and directing plaintiffs’ exceptions to be heard in the first instance at the General Term, should be dismissed as wholly unauthorized.

Freedman, J., concurred.


author: Per Curiam.

text:
    In the Matter of the Application of JOHN E. PARSONS to require JAMES J. SLEVIN, as Register of New York, etc., to tax certain fees.

      Taxation of the fees of the Register of the city and county of New York upon his return to a requisition for a search.

    The fees .of the Register may be taxed by a judge of the Superior Court of New York. (Section 3287 of the Code of Civil Procedure.)
    The Register claimed fees for searches made upon sixteen distinct parcels included in one requisition at $57.30 each, total fees $917.05.
    Held, that the statute permits multiplication for each year, each name and each kind of conveyance or lien searched for. It is silent as to the number of lots or parcels which may be affected by the same name, or the same conveyance or lien. Consequently, under the operation of the rule, “Expressio unius est exclusio alteriusf no authority can be implied for a multiplication by the number of lots or parcels, no matter how distinct, embraced by the same requisition.
    Held, that the only fees that could be charged were those arising from the search for one parcel, $57.55.
    Before Sedgwick, Ch. J., and O’Gorman, J.

      Decided May 2, 1887.

      Appeal by Register from order taxing his fees as Register, etc.
    The facts appear in the following opinion of the Special Term:
    Freedman, J.—This is a proceeding to tax the fees of the Register of the city and county of New York upon his return to a requisition of search in the records of his office, put in by Mr. Parsons, as attorney for the estate of Walter Bowne, deceased. The right to have the Register’s fees taxed by a justice of the Supreme Court, or a judge of a Superior City Court, is given by section 3287 of the Code of Civil Procedure.
    The requisition required a search to be made for mortgages, conveyances, and all other instruments in writing and incumbrances upon, or affecting the title of sixteen distinct parcels of property situated in different portions óf the city, and the search was to be made against certain names and for certain periods specified.
    The Register’s contention is that the fees amount to $917.05, and this result is arrived at by the following computation, viz.:
    Search against 1 name for 91 years ... 91 years.
    “ “ 1 name for 1 year .... 1 year.

      “ “ 29 names for 10 years each . 290 years.
    Total number of years . . . 382
    382 years for mortgages at 5 cents each . . $19 10
    382 “ for conveyances at 5 cents each . . 19 10
    382 “ for all other instruments at 5 cents
    each...........19 10
    $57 30
    16 distinct parcels at $57.30 each .... $916 80
    For certificate........... 25
    Total
    . $917 05

      The duty to make the search was imposed upon the Register of the city and county of New York by the provisions of chapter 531 of the Laws of 1884, and that statute is now the only law under which the Register is entitled to collect any fees. By that statute the successor of the Register then in office was made a salaried officer, and his compensation was fixed at and after the rate of $12,000 per year in lieu of fees. It was also enacted that all fees which may be collected by the Register under the new system shall belong to and be for the benefit of the city and county of New York, and that they shall be collected by the Register and by him accounted for and paid over monthly into the treasury of the said city and county. The statute then prescribes certain fees to be thus collected for certain services to be performed by the Register. The only provisions material to the present inquiry are contained in the 4th section, as follows:
    “For searching and certifying the title to and encumbrances upon real property, for each year for which the search is made, for each name and for each kind of conveyance or lien, five cents.”
    “Every certificate other than to a paper, for the, copying of which he is entitled to a fee, twenty-five cents.”
    These provisions are re-enactments of provisions contained in section 3304 of the Code of Civil Procedure, and the last-named provisions were re-enactments of similar provisions contained in 2 Revised Statutes, part 3, chapter 10, title 3. One of the said provisions of the Revised Statutes which applied to the Register of the city and county of New York (§30) was as follows:
    “ To a county clerk, for searching the records in his office, or the records of mortgages deposited in his office by loan officers and commissioners of loans or the dockets of judgments, for each year, five cents.” This provision was construed by the Court of Appeals and held to contemplate compensation for four distinct lines of searches, viz.:
    1. For mortgages.
    2. For conveyances.
    3. For mortgages deposited by loan officers and commissioners 'of loans, and
    4. For judgments. (Curtis v. McNair, 68 IV". Y. 198.)
    If, under the section of the Revised Statutes thus construed, the Register was entitled to charge five cents for mortgages, five cents for deeds, etc., he is, under the law as it now stands, clearly entitled to charge five cents for deeds, five cents for mortgages, and five cents for all other instruments on record which are not embraced under the general head of mortgages or conveyances. The law expressly says “ each kind of conveyance or lien.”
    But I cannot find any authority in the statute for a multiplication of the fee expressly given by the number of lots or parcels covered by the same requisition. The statute permits multiplication for each year, for each name, and each kind of conveyance or lien, searched for. It is silent as to the number of lots or parcels which may be affected by the same name or the same conveyance or lien. Consequently, under the operation of the familiar rule, “ expressio unius est ex-clusio alterius,” no authority can be implied for a multiplication by the number of lots or parcels, no matter how distinct, embraced by the same requisition. This-seems to be so free from doubt as to justify a refusal to pursue the investigation any farther.
    But the learned counsel to the corporation who appeared to protect the interests of the city and county, because the Register has no personal interest in this matter, showed that, for a long time past, it has been the established custom of the Register’s office to charge a separate fee for each distinct parcel of land covered by the same requisition; that a disturbance of that custom by a different interpretation or construction of the statute would, in a case like the present, yield to the •public treasury a wholly inadequate compensation for the services to be rendered; and that, even as it is, the returns of the Register’s office for the months of January and February, 1887, indicate that the receipts .of the Register’s office for the year will probably be less than the entire expense incurred by the city and county of New York for maintaining the said office.
    I have given to this contention a good deal of thought, but cannot find that it would justify a different interpretation or construction of the statute than above indicated. There are, it is true, various rules of construction and of interpretation, which, briefly summed up, are to the effect that the rights of the government are not to be taken away by ambiguous words, but only by clear and unequivocal language. But these rights, properly understood, do not include the right of an officer, either in his own behalf or in behalf of a municipal corporation, to collect fees for certain services. Every such fee, and the amount thereof, depends upon an express enactment. True, it is not necessary that the legislature should directly authorize a fee or the amount thereof. It may empower a municipal corporation or an officer in general terms to collect certain fees and to fix the amount thereof. But in every such case the general grant of power must be broad enough .for the purpose. Beyond that the right to collect a certain amount as a fee cannot, in the nature of things, rest upon a mere implication or a strained construction of a statute. In the case at bar, there is no such general grant of power. The legislature undertook to regulate the subject directly, and in doing so no right was conferred to multiply the fee by the number of distinct parcels covered by the same requisition. Moreover, the Code of Civil Procedure not only gives to a person feeling aggrieved the right to apply for a taxation of every fee charged by the Register, but it further provides that each public officer, upon whom á duty is expressly imposed by law, must execute the same without fee or reward, except where a fee or other compensation therefor is expressly allowed by law, and that an officer or person to whom a fee or other compensation is allowed by law, for any service, shall not charge or receive a greater fee or reward for that service than is so allowed (§ 3280).'
    A careful examination of chapter 531 of the Laws of 1884, as a whole, also fails to disclose any reason leading to a different result. There is nothing in the statute, as a whole, or the intent or policy thereof, which sanctions any custom theretofore existing in the Register’s office, or which permits me to disregard the ordinary rules of statutory and grammatical construction. Probably the legislature was of the opinion that cases like the present, or cases involving a considerable number of distinct parcels, were not likely to occur in great numbers, and that, therefore, it was not worth while to make specific provision for them. If, in fact, such cases are of frequent occurrence, and the interpretation and construction given by me to the statute should lead to abuses, the attention of the legislature should be directed to these matters. At all events, the remedy, if any should be had, must come through legislation.
    For the reasons stated, the Register, upon the requisition in question, is entitled to $57.30 for the searches made, and to 25 cents for the certificate annexed, making a total of $57.55, and his fees are hereby taxed accordingly.
    E. Henry Lacombe, counsel to the corporation, attorney, and Wm. L. Turner, of counsel for appellant.

      H. B. Closson, for respondent.
   Per Curiam.

Order appealed from, affirmed with costs, upon the opinion of Judge Freedman at Special Term.


author: By the Court.—Sedgwick, Ch. J.

text:
    JOHN BRADY, Appellant, v. THE MAYOR, ETC., OF NEW YORK, Respondents. BERNARD BRADY, Appellant, v. THE MAYOR, ETC., OF NEW YORK, Respondents.

      Newly discovered evidence—As to granting a new trial on ground of.

    After verdict against defendants and judgment thereon, the court on defendants’ motion made an order vacating the judgment with leave to defendants to serve an amended answer as proposed (with certain exceptions) and with leave to plaintiff to demur or reply. The amended answer (leaving out the parts excerpted by the order) set up a new defence. Affidavits were read on the motion which defendants claimed showed that, since the trial, testimony had been discovered which sustained the new defence. The effect of the order was simply to grant a new trial on the issues raised by the new defence.

      Held, that it did not appear from the affidavits that anew trial would have a result different from that which had been had, and therefore the order should be reversed.
    Before Sedgwick, Ch. J., Tritax and Dttgro, JJ.

      Decided May 18, 1887.
    Appeals by plaintiffs from order granting motions for new trials.
    The facts sufficiently appear in the opinion.

      L. Laflin Kellogg, attorney, and of counsel for appellants on the questions considered in the opinion, argued:
    I. A new trial cannot be granted in this case, because it is shown that the evidence adduced cannot change the result. Schultz v. Third Ave. R. R. Co., 47 Super. Ct. 285 ; Starin v. Kelly, 47 Ib. 288 ; affirmed 88 N. Y. 418 ; Chapman v. O’Brien, 39 Super. Ct. 244 ; Fowler v. Kelly, 43 Ib. 380.

      E. Henry Lacombe, counsel to the corporation, and Roscoe Conkling and Arthur H Masten, of counsel for respondents, argued:
    I. The granting of the motions rested in the sound discretion of the judge at Special Term, and with the exercise of that discretion the General Term will not interfere. Kepner v. Betz, 51 Superior Court Reports, 18; Martin v. Gould, 41 Ib. 544 ; Tallman v. Hinman, 10 How. 89; Field v. Stewart, 8 Abbott, New Series, 199; DeLlamosas v. The Same, 62 N. Y. 619; Henderson v. Savage, 40 Superior Court Reports, 221.
    H. The affidavits on which the motions were granted show that all the requirements were fulfilled which this court has declared necessary on motions for a new trial on the ground of newly discovered evidence.
    Those requirements are stated in Raphaelsky v. Lynch, 34 Superior Court Reports, 31; Seaver v. The Mayor, 7 Hun, 331; Lunney v. The Mayor, 14 Weekly Digest, 140; Brooks v. The Mayor, 12 Abbott’s New Cases, 350 ; Greer v. The Mayor, 1 Abbott, New Series, 206.
    III. The facts of these cases are such as to render it eminently proper that the discretion of the court should be exercised in favor of the defendants.
   By the Court.—Sedgwick, Ch. J.

These two actions involve the rights of the parties, under one contract made by the plaintiff in the first action and the Mayor, etc., of New York.

The contract was for regulating and grading 95th street from 10th avenue to Riverside drive. It provided for the. excavation of rock at one fourth of a cent for each yard and of earth at $ 8 for each yard.

By the contract the contractor was entitled to demand from the city 70 per cent, of the. contract value of work that should be certified by the city surveyor to have been done from time to time. The first action was brought by the contractor for this 70 per cent, under a certificate made by the city surveyor on March 12, 1884. The original answer admitted that the work had been done as averred in the complaint, but it averred the existence of certain facts, upon which it claimed that the plaintiff was not the lowest bidder for the work and also that the contract was fraudulent and void. The issue was brought to trial. The plaintiff had a verdict for the amount claimed by him and judgment was en-. tered in February, 1885.

In September, 1886, the motion below was made. It resulted in an order that the judgment be vacated, with leave to the defendants to serve the answer proposed by the motion, “ except that it shall not contain these portions thereof, setting up the defence of fraud, either actual or constructive, in the making or inception of the contract sued on.” This exception undoubtedly includes the defence in the proposed answer, of the plaintiff not having been the lowest bidder. It was the intention of the order not to allow any defence to be set up anew which had been tried in the action with knowledge of the relevant facts. The new defence allowed, is contained in the following averments: “ The defendants admit that a certain certificate was made and signed by the city surveyor employed in the work, which purported to state the respective quantities of earth and rock excavated by the plaintiff, but they allege upon information and belief that the quantities therein stated were false and inaccurate by reason of the fact that the ■ plaintiff had performed the work of excavation in an improper and fraudulent manner in violation of the provisions of the contract, whereby material that should have been classified and measured as rock was in fact classified and measured as earth to the pecuniary advantage of the plaintiff.”

The defendants claim that under this proposed defence, “the issue is whether or not there have been removed, in accordance with the terms of the contract, the relative quantities of earth and rock set forth in the surveyor’s certificate in question in the action.”

It is further claimed for the defendants that the affidavits show that since the trial, testimony has been discovered which sustains the defence.

Leaving aside questions as to laches and as to the proposed answer as a pleading, the test most favorable to the defendants would be to ascertain if the affidavits set out facts, which if testified to by credible witnesses, would uphold a verdict against the plaintiff, rendered on the ground that these facts showed that the numbers of yards of rock and of earth, actually excavated, were in the case of rock greater, and in the case of earth less, than those stated by the certificate.

The affidavits have been examined with particularity. After giving to the Affidavits for defendants all the weight that can in reason be claimed for them, my judgment is, that they do not show what quantities, respectively, of earth and of rock had been excavated before the certificate of the surveyor was made. The certificate was, under the contract, prima facie proof, that the plaintiff had excavated as the certificate declared. The affidavits do not falsify the certificate. It therefore does not appear that a new trial would have a result different from the result of the trial had.

Under ordinary circumstances it would be proper to sustain the correctness of this result by making a résumé of the affidavits. This is not done now for the reason that the claim for final payment is to be tried. It is right to each side that the new trial should not be embarrassed by the declarations of this court as to testimony in its present setting, which should have perhaps another construction due to the absence of some fact that now appears, or to the presence of some fact that is not shown now.

It may be granted that the affidavits disclosed some preparation for a fraudulent classification. The result of this preparation does not now appear. It does not appear that the city surveyor was deceived by it and did not make a correct certificate in spite of it.

In my opinion a new trial should not be granted for the purpose of experiment, or excepting upon a case, which justifies a conclusion that, when presented upon a new trial another result will be produced, unless countervailing facts shall appear.

The order in the first case should he reversed with $10 costs. The merits of the second case are the same as of the first, and in it there should be a reversal of the order with $10 costs.

Truax and Dug-ro, JJ., concurred.


text:
    HORACE SECOR, Jr., et al., Respondents, v. MARY J. CLARK, as Executrix, &c., Appellant.

      Death of sole defendant after interlocutory judgment—Effect on 'entry of final judgment, and on the time to appeal, and on an appeal from the final judgment by the person substituted for the deceased.

    Where an interlocutory judgment against a sole defendant gives him a certain number of days to answer the complaint, and he, during the running of those days, dies, final judgment cannot be entered until after the revivor of the action, and the neglect of the person against whom the revivor is had to answer within a period subsequent to such revivor equivalent to the number of days remaining unexpired at the time of the death.
    Although final judgment is prematurely entered, and is entered against the deceased defendant, the persons against whom the action is subsequently revived may appeal from it within thirty days after its service on him, and the effect of such appeal is to bring the merits before the court.
    Before Sedgwick, Ch. J., Freedman and O’Gobman, JJ.

      Decided May 18, 1887.
    Motion to dismiss appeal.

      This action was originally brought against Samuel B. Clark. He demurred to the complaint. The demurrer was overruled with leave to answer in twenty days. An interlocutory judgment to this effect was entered and served. Within the twenty days Clark died without having answered. After the expiration of the twenty days no answer having been interposed, plaintiff entered final judgment against Clark. Thereafter on the motion of Mary J. Clark the executrix of the will of said Clark, she was substituted for said Clark, and the action was ordered to be continued against her as such executrix. Subsequently thereto and on the 4th day of March, 1887, a copy of said final judgment with notice of its entry was served on her attorney. On the 9th day of March she duly appealed to the General Term from such final judgment.
    A motion is now made to dismiss the appeal.

      John T. Cornell attorney, and of counsel for respondents, and for the motion.'

      G-. W. Cotterill, attorney, and of counsel for appellant, opposed.
   By the Court.—Sedgwick, Ch. J.

An order or interlocutory judgment was entered, that directed that final judgment in favor of plaintiff be entered unless the defendant answer within twenty days. Before the twenty days had past, the defendant died. As there was time to elapse in which'the defendant or bis representative had, according to the nature of the adjudication, an opportunity to defend, the order or interlocutory judgment did not become absolute by the expiry of the twenty days, and would not become absolute, until there was a party to the action who might competently interpose a defense within the remainder of the twenty days after the death, or such further time as the court should give in its discretion. In reality the action abated at the death, until it should be revived, and the condition of the order being interrupted by death and therefore there being no absolute order or interlocutory judgment, final judgment could not properly be entered until after revivor and substitution, with proper directions due to the particular circumstances made in the order of revivor.

This opinion that final judgment was prematurely entered, does not affect the merits of the appeal taken from it. There has been a substitution of the executrix and service of copy of final judgment upon her with notice and an appeal by her from the judgment. This brings before the court the merits. But the time within which to appeal did not begin, until service of the copy of the judgment.

Motion denied with $10 costs.

Freedman and O’Gorman, JJ., concurred.


author: By the Court.—Dugro, J. Sedgwick, Ch. J. Teuax, J. (dissenting.)

text:
    WILLIAM J. REILLY, Respondent, v. THE MAYOR, ETC., OF NEW YORK, Appellants.

      Lowest bidder under chapter 410, Laws 1882, relative to work done for, and material furnished to, the city of New York.

    To constitute the lowest bidder to whom under chapter 410 of the Laws of 1882, a contract for the doing of work for the city of New York is authorized to he awarded, it must at least appear, where the biddings are under an advertisement by the city stating an estimate by its surveyor of the nature and extent of the work to be done and inviting proposals therefor, that such estimates were made by the use of the best means of making certainty as great and uncertainty a# slight as practicably possible, so that they shall be an approximate description of the work actually done and so that a calculation of the cost of the work based on them, will be more or less (disregarding inevitable and relatively unimportant inaccuracies) the same as if the calculation were made as to the work when done, and that the cost of the work under his • bid calculated on the basis of such estimate was lower than its cost would be under any other bid calculated on the same basis.
    Estimates founded merely upon guess as to the facts on which they are based do not constitute either a proper or legal means or element by which to determine the facts as to the lowest bidder for the work to be done.
    As in the case at bar, there was evidence to the effect that the official who made the estimate on which the calculations were made, based on the bidding, and under which the contract was awarded to the plaintiff as the lowest bidder, was in ignorance of the quantity of the work to be done and the proportion of rock and earth, and merely guessed at these matters; and as the defendant was not allowed to give evidence that would have helped to determine the character of the estimate as a description of the work to be done, and would have tended to show that proper means were not used to make the estimate certain to any extent —the judgment was reversed and a new trial ordered.
    Before Sedgwick, Ch. J., Trtiax and Dugro, JJ.

      Decided May 8, 1887.
    Appeal by defendants from judgment at Trial Term entered in favor of plaintiff against the defendants.
    The action was brought to recover the contract price for work done by plaintiff under a contract awarded to him as the lowest bidder for the regulating and grading 185th street from Tenth avenue to the Kingsbridge road, and setting curb-stones and flagging sidewalks therein.
    The trial court directed a verdict for the full amount claimed.

      E. Henry Lacombe, counsel to the corporation, and D. J. Dean, of counsel for appellants on the questions considered in the opinions, argued.
    I. The contract in question, not having been given to the lowest bidder, is void and no ^recovery ca,n be had for work done thereunder. Section 64 of the Consolidation Act requires that such contracts shall be made with the lowest bidder therefor, founded upon sealed proposals, received in compliance with public notice, duly advertised.

      The statute requires that the work which is to be done shall be publicly advertised.
    An advertisement, which fails to state correctly the work which is to be done, does not comply with the intention of the statute, but evades its requirements and defeats the intent thereof.
    Therefore, the courts have uniformly condemned contracts, which have been founded upon proposals and advertisements, which state the work to be done, partially or incorrectly, and invite bids upon a false basis ; which exclude bona fide competition for the actual value of the work to be performed. Brady v. The Mayor, 20 N. Y. Rep. 312; Appleby v. The Mayor, 15 Howard, 428; McSpeddon v. Stout, 4 Abbot, 23 ; Matter of Mahan, 20 Hun, 301; Affirmed by the Court of Appeals in 81 N. Y. 621; In the Matter of Merriam, 84 N. Y. Rep. 596 ; Starin v. The Mayor, decided at General Term of the Supreme Court, October, 1886 ; Bigler v. The Mayor, 5 Abbott's New Cases, p. 51; Smith v. The Mayor, 10 N. Y. Rep. 504.

      Miller & MacFarlane, attorneys, and Wallace MacFarlane, of counsel for respondent, on the questions considered in the opinions, argued.
    I. The claim made by the defendants in this case, that while the plaintiff’s prices, as stated in his bid, for the several classes of work to be done multiplied by the estimated quantities, made him the lowest bidder, those estimated quantities were so erroneous that if plaintiff’s prices are multiplied by the quantities of work actually done, as shown by actual performance, he will not be the lowest bidder, is not sustainable.
    This claim leads necessarily to the position that the lowest bidder should be determined after the quantities of work to be done have been shown by actual performance—that is, after the contract has been awarded and performed.
    The law required this contract to be awarded to the lowest bidder whose bid complied with certain statutory-requirements, about which there is no question in this case. Consolidated Act, chap. 410, Laws 1882, § 64.
    A contract to do work and furnish materials must be awarded before the work is done or the materials furnished. Therefore, to award the contract to the lowest bidder, as the law commands, the defendants were constrained to devise and follow some method of determining the lowest bidder before awarding the contract. The method of determining the lowest bidder followed in this case, and which it was conceded on the argument at trial term had been followed for a generation in New York city, was as follows : The defendants, acting through their department of public works, had the site of the proposed work surveyed, and estimated the quantities, of work to be done, to wit: 7000 cubic yards of earth excavation ; 9000 cubic yards of rock excavation; 3124 lineal feet of curbing excavation; 11,540 square feet of flagging excavation. These estimated quantities were published in the proposals to bidders Avho were required to bid a price per yard or foot for each class of work. When the bids were opened the prices bid were multiplied by the estimated quantities, and the lowest aggregate bid determined the lowest bidder. The plaintiff was determined by this method to be the loAvest bidder, and the contract was aAvarded to- him.
    It is clear that this method determined with certainty the loAvest bidder for the estimated quantities of work to be done, Avhich is all that is .possible as a compliance with the law. The nature of the case did not admit of certain estimates. Nobody could tell Avith certainty hoAV much earth or rock avouM be found in excavating the piece of land in which the street «was to be made.
    The defendants support their claim, that plaintiff, tested by the actual result of the work, is not the lowest bidder, by a curious argument drawn from the case of Brady v. The Mayor, etc., 20 N. Y. 312. It appeared in that case that the street commissioner in his proposals to- bidders, stated estimated quantities of all classes of work, except rock excavation; he called on bidders to state the price per cubic yard for removing rock, should any be found. Of course, in determining the lowest bidder the prices bid for rock did not enter into the aggregate of the bids, because there was no estimated quantity of rock by which to multiply the prices bid on that item. The plaintiff bid $25.00 per yard for removing rock, and was declared the lowest bidder. This result was reached by a comparison of the bid on the other items of the contract. This contract was declared illegal because the law called for competitive bidding, and there was no competition as to a substantial part of the work, viz., rock excavation. The principle of this decision is that the contract was awarded on non-competitive bids. See in re Merriam, 84 N. Y., page 604.
    The defendants now argue that though an estimated quantity of each item was stated in the prop.osal in this case, yet the actual result shows that the estimate of earth was much less than the actual quantity; that, therefore, the estimate did not contain a portion of the work to be done, viz., the amount of earth excavated above the estimated quantity; and so like the Brady case left out a substantial portion of the work to be done.
    This argument leads the defendants again to the untenable conclusion that the lowest bidder is to be determined after the contract has been awarded and performed, but a complete answer to puch argument is found in the case of Brady v. The Mayor, etc., itself.
    The opinion shows that the court clearly understood that the estimated quantities could be approximate only. At page 318, Judge Dentó says:.....“ I cannot persuade myself that this was a case in which it was impossible, or really difficult, to ascertain and state in the invitation for bids that the work in question would require the blasting and removal of a quantity of fixed rock, and to give an estimate of the number of yards sufficiently exact to enable persons desirous of competing to propose with prudence and safety for each item of the work. If this had been done, and if the result of all the offers had been taken into account in selecting the lowest bidder, a contract given to that person would have been awarded according to the statute.” See also Bonesteel v. Mayor, etc., 22 N. Y., p. 169.
    According to the defendants’ argument, every contractor to whom a contract is awarded as the lowest bidder, tested by the data in the proposal, takes his contract subject to a condition subsequent, which releases the defendants from any obligation to pay him, if on actual performance by him it appears that had the quantities of work actually done been in the proposal, instead of the estimated quantities, he would not have been the lowest bidder. This should be a sufficient reductio ad absurdum, especially when the law vesting the contract in the lowest bidder at the opening of the bids had been repealed at the time this contract was made, and the defendants given full power, if they distrusted the estimates, to order a re-examination and re-let the work.
   By the Court.—Dugro, J.

Section 64 of chapter 410 of Laws of 1882 provides that all contracts shall be awarded to the lowest bidder. The lowest bidder for the work actually to be done is intended, and not the lowest bidder for an estimate of the work to be done.

The contractor Reilly was certainly not the lowest bidder for the work provided for by the contract in the matter before us; for in this case, only an estimate of the quantities of material to be removed was obtained, and these estimated quantities were relied upon as factors in determining the lowest bidder; the actual work to be done was no factor whatever in the dótermination.

Some of the bids for the estimated quantities of rock and earth, etc., were as follows :—

Cubic y’d Cubic y’d

earth. rock. Curb. Flag. Total.

W. E. Dean,.............$0.25 $1.45 $0.78 $0.26 $20,672.12

M. H. Foley,............. 1.78 1.20 1.20 1.2Ó 12,848.32

John B. Devlin......... 70 1.25 55 22 20,782.00

R. J. Mills,............... 65 1.35 75 30 22,955.00

Wm. Phelan,____________ 40 1.60 65 26 23,131.00

John Slattery,..-_________ 68 1.75 65 26 26,891.00

Thomas E. Crimmins,.. 50 1.75 60 25 24,909.40

Wm. J. Reilly,.......... 1.69 .01 01 01 12,336.64

The amount of these bids attested by the actual quantities of rock, earth, etc., were :

W. E. Dean, $15,309.50 ; M. H. Foley, $27,121.47 ; John B. Devlin, $19,681.24; R. J. Mills, $21,311.85; Wm. Phelan, $18,220.37; John Slattery, $23,472.06 ; Thomas E. Crimmins, $20,045.85; Wm. J. Reilly, $25,255.23.

The lowest bidder, therefore, for the actual work to be done, was W. E. Dean. •'

There is no warrant in law for making estimated quantities of the respective classes of work to be done, factors in the determination of the question as to who the lowest bidder is for public work, the lowest bidder for the contract (not the presumed lowest bidder) is the bidder intended by the statute. Sec. 65 of chap. 410, Laws of 1882.

It is unnecessary to say that if the work were -all of one class, as the removal of earth, or of a mass as amass, no trouble would arise in determining the lowest bidder, but when it is proposed, as in the case at bar, to make one contract which shall provide for the removal of a mass made up of earth and rock, in unknown proportions, a difficulty arises. For then it is apparent that if the price fixed for the removal of earth be other than that fixed for the removal of rock, the only manner in which the question can be determined in the method adopted by ttie city officials in this case, is by a computation in which the respective prices for earth and rock removal, and the respective quantities of earth and rock will be the factors. And if it is not possible to determine the proportions of the earth and rock no determination of the question can be made.

The method adopted in the case at bar of estimating the respective proportions of earth and rock, and making the amounts of these estimated quantities factors in the determination of the question, is manifestly no solution, it is a mere conjecture dependent for its verity upon whether the estimates be correct or not.

The lowest bidder for the actual work to be done is intended, and not the lowest bidder on the estimated quantity of work to be done. Appleby v. The Mayor, 15 How. Pr. 428.

“ The party aggrieved was employed in contravention of the policy and terms of the statute. He could not contract with the city except through its authorized agents, and he is chargeable in law with notice of the limitations of official authority imposed by general laws.” Donovan v. The Mayor, etc., 33 N. Y. 293; McDonald v. The Mayor, etc., 68 Ib. 23.

To make a contract for removing a mass containing unknown proportions of rock and earth, it is not necessary to resort to such a system as was adopted in the case at bar.

Many lawful methods of contracting for the wqrk suggest themselves to our minds in which the lowest bidder for the work actually to be done can be ascertained with certainty.

The object of the statutes and the ordinances was to invite real competition for work and to secure its performance for the lowest price which fair and real competition would produce. Matter of Ralph Marsh, 83 N. Y. 434.

The system adopted in the present case is neither sanctioned by law, nor warranted by necessity; it is permissive of pernicious and dangerous results, and could never have been intended to be authorized by law.

We have now before this court a case wherein, under this system of accepting a lowest bidder for estimated quantities as the lowest bidder for a contract, one whose bid (by a computation based on estimated quantities of earth and rock and the bidders’ prices for their removal per cubic yard) was $15,526.28, and who by the application of his figures to the actual quantities, as they were ascertained on the completion of the work, received from the city $117,395.68, while the reasonable cost of doing the work was $26,541.79.

It will probably be claimed that, as the city stated its estimate of the respective quantities, and then called for estimates of price per cubic yard only for the various works to be done, with notice that it would not be bound as to quantities, no injustice could be done by an award—in other words, that all the bidders, knowing that the estimated quantities were to be factors only in ascertaining the lowest bidder, were aware that they must determine for themselves the actual qualities. Such reasoning is plausible but specious, «and cannot control this court. The estim«ated quantities were used as though they were the true quantities in the letting of the work, and the city was thereby made a party to a venturesome speculation far removed from the letter and the spirit of the Law. A bidder’s figures will of necessity be fixed by him with regard to the proportionate quantities of earth and rock, as he believes them to exist; and his selection of factors in the determination of the award will be such as will make his bid in amount as he desires, while the factors he selects may be such as will cause the city to pay the highest possible price for the variance between the quantities as estimated by the city and the quantities as they actually exist.

No authority was given by the act to the common council to adopt any ordinance or regulation which should in any way interfere with or prevent the ascertainment of the lowest bidder for the contract, that is, for the actual quantity of any public work to be done, or which would leave the determination of such a lowest bidder to chance or conjecture.

Any system of letting contracts for public work is illegal which necessitates the determination of the “ lowest bidder” by conjecture, when it is possible to let a contract for the same work to “ a lowest bidder ” in whose selection no element of chance enters. The disposition of this question makes it unnecessary to consider the others, raised by the appeal.

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

Sedgwick, Ch. J.

I agree with Judge Dugro in his opinion.

The statute provides that the head of the department shall award the contract to the lowest bidder. Of course, the bidding must refer to the work to be done. If the basis of ascertaining who is the lowest, bidder be an estimate of quantities or specifications, they are used on the assumption that they correctly describe, in an approximate way, the work to be done.

The necessary implication in the statute is, that means shall be used that are adequate to ascertain who is the lowest bidder. A bidder must abide the true construction of the statute as well as the city officials. He who claims to be the lowest bidder must justify his claim by the fact that he was lowest bidder, as ascertained according to the statutory intent.

The statute requiring, in substance, that it shall appear who is the lowest bidder, there can be no award of the contract if, after considering all the contingencies, it appears that one of several may be the lowest bidder, but that it is impossible to fix upon the one who is.

One of the implied conditions of the statute is that, if estimates and specifications be used, they are to be shaped so that a calculation upon them will be more or less—that is, disregarding inevitable and relatively unimportant inaccuracies, the same as if a calculation were made as to the work when done.

If it should appear, as in this case it does appear, that one of the bidders is lowest only on the assumption that the estimate properly describes the work and that another is the lowest, if the estimate does not properly describe the work, a decision would turn on the character of the estimate. Under the statute, it is not too late to prevent a contract being awarded illegally because the insufficiency of the estimate is discovered, or rather recognized, for the first after biddings are opened. The question would be: Does it appear that the estimate is an approximate description of the work, or does it appear that it cannot be affirmed that it is an approximate description, because it is no statement of things known to be facts, but is only a guess as to the facts ?

This must be determined by a comparison of the statements of the' estimate with the facts of the proposed improvement. An estimate does not import in itself any conclusively absolute verity. Its value as helping to ascertain who is the lowest bidder does not arise from its being made, but from its correspondence with the work to be done.

Testimony as to the proposed improvement might shoAv that it Avas possible to make a proper estimate, and that such Avas not made, or that it was not possible to make such, and that therefore the estimate as made afforded no means, of concluding whether a bidder upon its terms would be the loAvest bidder for the work in fact to be done.

The truth as to the estimate in the present case is, that it was very far from an approximately correct description of the work. The work done, of excavation, was of 18,973 cubic yards; the estimate called for the excavation of 16,000 yards. There were, in fact, 15,033 yards of earth excavated; the estimate named 7000 yards of earth. There were 3943 yards of rock excavated ; the estimate named 9000 yards.

The official who made the estimate was in ignorance df the quantity of work to be done and of the proportion of rock and earth. He and no one could say that the estimate was correct—he could not believe that it was. At the best it was a guess. These things appear in the facts and documents in testimony on the trial, and the defendant was not allowed to give testimony as to the facts of the proposed improvement that would have helped'to determine the character of the estimate as a description of the work to be done.

If, on all the facts, it should be inferred that the quantities of the estimate were only given which might or might not turn out to be true, then I am of opinion that, as matter of law, it was illegal and against the statute to find that the plaintiff, rather than others, was the lowest bidder. It was matter of chance at that time as to who was the lowest bidder.

It is argued that such a train of reasoning disregards the fact that, in estimates made before the awarding of the contract, there must be uncertainty. This is true; but that kind of uncertainty is not the result of an omission to use the best means of making certainty as great and uncertainty as slight as is practically possible. In the present case the facts may show that proper means were not used to make the estimate certain to any extent, but that as to rock and earth it was altogether uncertain.

It may, perhaps, be said that there were no means of making a reasonably certain or approximately correct estimate. If that were the case, and for that reason it could not be ascertained who was the lowest bidder,-it is not a justification of awarding a - contract under the statute,'as if there were a known lowest bidder.

Teuax, J. (dissenting.)

I do not agree with the conclusion of the majority of the court.

At the time the act of 1882 was passed (chapter 410), there was an ordinance of the common council of this city in force which provided the way in which it should be determined who was the lowest bidder. This ordinance the legislature continued in full force and effect by section 84 of chapter 410 aforesaid. When the legislature enacted this law they in effect made the ordinance of the common council which was then in force a part of the laiv of 1882, and pointed out the way in which it should be determined who was the lowest bidder.

The method of determining who was the lowest bidder, which was used in this case, is the method that has been in use in this city for a great many years—and particularly since the charter of 1873 was passed, in which charter there was a provision similar to section 64 of chap. 410 of the Laws of 1882.

The legislature knew the interpretation that was put upon the charter of 1873, and it is entirely fair to infer that, if the construction put upon that act by the public authorities of the city did not carry out the intent of the legislature, other language would have been adopted in the act of 1882, which would have carried' out such intent. The re-enactment of the provision of the charter of 1873, above referred to, by the legislature in 1882, should be deemed to be an adoption by the legislature of the construction put upon the act of 1873 by the city authorities. People ex rel. Outwater v. Green, 56 N. Y. 475. This construction has almost the force of a judicial exposition. People ex rel. Williams v. Dayton, 55 N. Y. 367.

In this connection it is to be noticed that section 64 of chap. 410 requires the counsel to the corporation to settle the terms of the contract “ as an act of preliminary specification to the bid or proposal,” and that the contract sued on here contained the very surveyor’s estimate of the nature and extent of the work to be done, which the majority of this court think did not furnish a basis on which to let the contract, and was settled by the law officer of the city.

That this method of determining who is the lowest bidder is not illegal, is supported, I think, by the Matter of Merriam, 84 N. Y. 601.

The principal contention urged against the validity of the assessment which was the subject of review in that case was that the work was not let to the lowest bidder, as required by the charter and the ordinances of the common council of the city of New York, because the items of rock excavation were not submitted to competition, but a price was arbitrarily fixed therefor by the Commissioner of Public Works. Judge Miller, in writing the opinion of the court in that case, called attention to the fact that the ordinance, chap. 8, article 2, requires that supplies and work shall be furnished by contract; that no contract shall be made until proposals are advertised for; and that they shall state the quantity and quality of the supplies or the nature and extent as near as possible of the work required.” Sections 15, 16, 17, title 2. The city claimed that it would be exceedingly difficult to ascertain beforehand the quantity of rock excavation, which constituted the largest item in the contract, so as to make an estimate sufficiently correct to carry out the purpose of letting the contract to the lowest bidder. These suggestions, continues Judge Miller, are not without force, and while there is strong ground for the claim that the price fixed for one or more items is fair and reasonable, and there no evidence of fraud or extravagance, and the quantity could not be ascertained without a considerable expenditure of money, and that this could be done in some instances consistently with the interests of the public in view, and with the statute and ordinances, we are, upon the whole, of the opinion that to carry out intention of the law to award contracts to the low-bidder, it is requisite that the quantity of rock excavation as near as possible should be stated in the proposals—and that fixing the price for the same was disregard of the law, and a violation of the statute and the ordinance of the city which is cited.” And again, he says that “the intention of the lawmakers was to enforce a submission of every important item for competition, naming the quantity so far as it could he reasonably ascertained.”

It seems to me that the way provided by the regulations and ordinances of the common council is the only reasonable way in which the city could submit proposals for work to be done, and that the city is protected by the power which is given to the head of the department to reject all bids and re-advertise the work anew.

The only other way in which work could be let would be by submitting the whole work in a lump to competition, the effect of which would be to restrict competition.


author: By the Court.—Freedman, J.

text:
    CHARLES H. NEILL, et al., v. JACOB VAN WAGENEN. CHARLES H. NEILL v. JACOB VAN WAGENEN.

      Attorneys prior to 1879—Discontinuance by party irregular as to attorney —Ratification of.

    Prior to the amendment in 1879, of § 66 of the Code of Civil Procedure, the lien of a plaintiff’s attorney before judgment extended only to the papers in Ms hands; but the court, on granting a discontinuance, could, on proof that the action had been collusively settled between the parties, with the design of defrauding the attorney, have imposed the condition of the £>ayment to Mm of a reasonable compensation.
    An order of discontinuance without the consent of, or notice to, the plaintiff’s attorney, is irregular as to him, and may be set aside on Ms motion.
    Such order, however, may be ratified by the attorney; and 1ns acquiescence therein for eight years and bringing an action based on such order of discontinuance will constitute a ratification.
    Whittaker v. N. Y. & Harlem It. E. Co., 54 Super. Gt. 8, has no application to cases arising prior to the amendment, in 1879, of § 66 of the Code of Civil Procedure.
    Before Freedman and O’Gorman, JJ.

      Decided May 18, 1887.

      Appeal by plaintiffs’ attorney from order denying his motion to set aside orders of discontinuance.
    The facts sufficiently appear in the opinion.

      Samuel H. Randall, attorney, and Hon. Hooper C. Van Vorst, of counsel for appellant, argued:
    I. The orders of discontinuance were illegal, as well as irregular, and the illegality was such they could not be validated by mere lapse of time against the attorney injured thereby. Code Civ.Proc., § 55; Keenan v. Campbell, 1 Law Bul. 18 ; Pilzer v. Gore, 12 Abb. 244 ; Chadwick v. Snedeker, 26 How. 260; Webb v. Dill, 18 Abb. 264; Halsey v. Carter, 6 Rob. 535; Miller v. Thall, 67 Barb. 446.
    II. The appellant, as assignee of the causes of action, as collateral to secure his agreed compensation and the indebtedness of the Neills to him of $2,100, for money loaned and other services, had the sole right to prosecute the actions and any interference therewith by the Neills and Van Wagenen, after the assignment, with notice to Van Wagenen, was necessarily and absolutély illegal, wrongful and fraudulent. Peck v. Yorks, 75 N. Y. 421; Coughlin v. R. R. Co., 71 Ib. 449; Wheeler v. Wheeler, 9 Cow. 34 ; Rooney v. R. R. Co., 18 N. Y. 368; Dietz v. McCullum, 44 How. Pr. 493 ; Crotty v. McKenzie, 42 Super. Ct. 199.
    III. The suppression of the attorneys of Van Wagenen from the court, of the knowledge, that the consents were not signed by plaintiffs’ attorney, was a fraud, on the court, amounting to something more than mere <•- irregularity.” There is no limitation of time upon the power of the court in such cases. Verplanck v. Van Bruen, 76 N. Y. 247; Hurlburt v. Coman, Daily Reg. March 28, 1887 ; Bowe v. Mangold, 50 How. 240 ; Dinsmore v. Adams, 48 Ib. 274; Bradford v. Drayton, 17 Abb. 36 ; Neeks v. Merrit, 5 Rob. 610; Hackley v. Draper, 60 N. Y. 92; Miller v. Carty, 6 Rob. 470; White v. Coulter, 59 N. Y. 629 ; Rutter v. Tullis, 5 Sandf. 612; Orphan Asylum v. McCartee, Hopk. 372; Wade v. De Leyer, 40 Super. Ct. 541. Neither sections 1282, 1283 nor 1290 apply in such cases.
    IY. “ Such an act as entering an order of discontinuance on the consent of the client, where he has an attorney, is something more than irregularity, it is a nullity.” Jackson v. Smith, 16 Abb. 201; Miller v. Thall, 67 Barb. 446; Kellogg v. Hill, 62 Ib. 280; Winnebrunner v. Edgerton, 8 Abb. 419; Nugent v. Mulvy, 90 How. 460; Bowe v. Mangold, 50 Ib. 248; 2 S. & T. Prac. pp. 1028 and 1029, and cases cited.
    Y. While actions for equitable relief are ordinarily barred after the lapse of ten years; on motion, no limit of time restrains the court, after the action is commenced, from granting relief therein. Code Civ. Proc., § 388; Van Allen v. Schermerhorn, 14 How. Pr. 287; Rutter v. Tullis, 5 Sandf. 612; Delaney v. Bloodgood, 7 Hun, 7; Evans v. Cleveland, 72 N. Y. 486; State of Indiana v. Woram, 15 Abb. 264; Cary v. Stebbins, 1 Barb. Ch. 589 ; Marvin v. Marvin, 1 Abb. N. C. 372 ; Wade v. De Leyer, 40 Super. Ct. 541.
    YI. Courts will always treat as sufficient a reasonable or satisfactory excuse for delay, which might otherwise be deemed laches, and will always exercise a tender and benevolent jurisdiction in seeking to protect their officers from loss of the fruits of their industry or skill, by fraud and collusion of adverse parties. Wade v. De Leyer, 40 Super. Ct. 541; Dietz v. McCullum, 44 How. Pr. 493.
    VII. The delay of the appellant to seek judicial relief, by motion, was not an answer to his application on the state of facts shown on the motion below. Matter of Lord, 78 N. Y. 114; Hackley v. Draper, 60 Ib. 92; McLean v. Tompkins, 18 Abb. 24; Hill v. Hemans, 59 N. Y. 396 ; Truman v. Leland, 6 Hill, 237; Booth v. Bank, 50 N. Y. 396.
    VIII. This court has recently held that the relief asked for by appellant (for the court to vacate the orders of discontinuance and allow appellant to prosecute the actions) is the appropriate relief to be granted in such cases, and whereby the rights of all parties would be protected, without any shadow or degree of injustice. This relief being granted, the attorney would not be driven to a new action, as assignee of the claims against respondent, which would be clearly barred at this time by the statute of limitations. Whittaker v. R. R. Co., 54 Super. Ct. 8.
    IX. “ Laches ” does not confer jurisdiction, nor validate that which is illegal, fraudulent, or a nullity. Buckley v. Buckley, 6 Abb. 312; Williams v. Van Valkenburg, 16 How. 150; Titus v. Relyea, 8 Abb. 179; Heard's 9th. ed. Steph. Pleading, Note Z., citing Broom's Maxims, 4th Lond. ed. 139; Dudley v. Mayhew, 3 Coms. 9.
    X. “ The order of the court should not shield a party who acts with knowledge of a fraud, by an officer of the court, and no wrong is done by restoring the parties to the same condition they occupied prior to the alleged sale and transfer of the judgment.” Hackley v. Draper, 60 N. Y. 92; see 78 N. Y. 114 supra.

      Charles M. Marsh, attorney, and of counsel for respondents, argued:
    I. The order of discontinuance was a judgment under the definition of the Code ; it was a final determination of the rights of the parties in that action. Code, § 1200 ; Crockett v. Smith, 14 Abb. 62.
    II. While the order of discontinuance was improperly granted it was an irregularity only, and this motion expressly states that it is to set aside the discontinuance as irregularly entered.
    III. The judgment or order of discontinuance is shown by the moving papers to have been entered and brought to the notice of the moving party on October 10, 1877, more than eight years ago.
    IV. The Code provides: A motion to set aside a final judgment for irregularity shall not he heard after the expiration of one year since the filing of the judgment roll, etc. § 1282.
    Y. The motion should not be granted upon the merits. 1. There has been gross laches, in delaying for nine years to make this motion. In ordinary cases the law lias fixed six years within which an action upon contract can be brought. If the allegations in the moving affidavit, that not only was there an agreement for compensation, but the whole cause of action was assigned, is true, Randall could upon the discontinuing have at once brought a new action in his own name. He has neglected this for nearly nine years, and is now asking the court to aid him in evading the statute. 2. Conceding, for the argument, that Neill’s consent to discontinue was unauthorized, yet by commencing his action Randall ratified or acknowledged the validity of the act. The foundation of that action was supposed to be a valid act by Neill in ending the suit. It is true that Randall, ignorant of his legal rights, supposed that he could by that election hold Yan Wagenen for damages he claimed to have sustained, but does not alter the fact that he elected to consider the discontinuance valid and binding.
   By the Court.—Freedman, J.

The appeal is from two orders made at special term denying the motion of the attorney of the plaintiffs in these actions to set aside the orders of discontinuance entered on consent of the plaintiffs. The orders of discontinuance were entered October 8, 1877. The amendment of section 66 of the Code of Civil Procedure, which gives to an attorney, from the commencement of the action, or the service of an answer;, containing a counterclaim, a lien upon his client’s cause of action or counterclaim, was not passed until 1879. For this reason Whittaker v. N. Y. & Harlem R. R. Co. (54 Super. Ct. 8) does not help the appellant. As the law stood in 1877, the lien of the appellant as attorney for his compensation extended only to the papers in his hands, and upon proof of a settlement privately effected between the parties with the design of defrauding the attorney, the court could have insisted upon the payment to him of a reasonable compensation before granting a discontinuance. The actions were settled and discontinued by and between the parties and the orders of discontinuance entered, without notice to the appellant. This was clearly irregular so far as he wa's concerned, and upon his motion the orders of discontinuance might have been set aside. But the orders were not a nullity. They were good as between the parties, and the appellant could ratify them by acquiescence. Copies of the orders of discontinuance were served on the appellant on October 10, 1877, and for about eight years he did acquiesce. Moreover he elected to pursue another remedy. He brought an action in this court against Van Wagenen and the two Neills, in which he alleged that by a parol assignment the Neills had assigned to him all their right, title and interest in and to the causes of action upon which the above entitled actions had been brought; that notice of this assignment had been given to Van Wagenen ; and that Van Wagenen and the Neills had conspired together to defraud him and fraudulently had settled the said actions and procured them to be discontinued. He also averred that in consequence of said conspiracy and fraud he had sustained damages to the amount of ten thousand dollars, and he prayed judgment for that amount. The orders of discontinuance were thus made' the basis of the action brought by the appellant, and consequently the bringing of the action was in affirmance of the orders.

Upon this state of facts the motion made by the appellant after the lapse of eight years to have the orders of discontinuance set aside, was properly denied. Moreover he was not injured by the said orders so far as his interest related to the indebtedness due to him by the Neills or to the causes of action which had been assigned to him. He could have enforced his rights in these respects in proper actions notwithstanding the discontinuance.

The order appealed from should be affirmed, with $10 costs and disbursements.

O’Gorman, J., concurred.

       See following case in this volume.


text:
    SAMUEL H. RANDALL, Appellant, v. JACOB VAN WAGENEN, Impleaded, &c., Respondent.

      Attorney, action by for damages for the collusive settlement of action in which he was plaintiff's attorney when not maintained.

    The complaint in the action, brought by an attorney against the plaintiffs and defendant in an action wherein he was attorney for the plaintiffs, for damages on account of the settlement and discontinuance of that action by agreement between them, alleged that the claim sued on in that action had been assigned to the attorney; that notice of such assignment had been given to the defendant to that action, and that after such notice the plaintiffs and defendant in that action fraudulently conspired together to defraud plaintiff by settling the action, and in pursuance of that conspiracy did settle the action and caused an order to be entered discontinuing it in fraud of plaintiff’s right, and thereby the plaintiff lost the amount of his interest in the claim and the benefit of his collateral security.

      Held, that the allegations in the complaint were insufficient to constitute a cause of action, and that the complaint was properly dismissed at the trial.
    Before Freedman and O’Gorman, JJ.

      Decided May 18, 1887.
    Appeal from judgment entered on a dismissal of the complaint at the trial.

      The facts sufficiently appear in the opinion.

      Samuel H. Randall, attorney, and Hon. Hooper C. Van Vorst, of counsel for appellant, argued:
    I. The complaint set forth facts sufficient to constitute a cause of action. It was an action on the case for conspiracy, or for acts in the nature of a conspiracy, or for fraud, for a concert of action by the defendants to cheat and defraud the plaintiff, which actually resulted in damage and an intent by defendants to cheat and damage the plaintiff. There was a wrongful and unlawful combination by defendants to do what the law forbade their doing, and which was a fraud upon the plaintiff’s rights. By his demurrer, the defendant admitted all the allegations of the complaint, as to the acts constituting the alleged fraud, or which were done in pursuance of such combination to cheat and defraud plaintiff. There was matter to go to the jury for them to find the facts for or against the defendants, of a fraudulent purpose, carried out by combination, by concealment of the false character of the consent upon which the order of discontinuance of the action was made from the court; which consent the defendants were prohibited by law and the rules and practice of the court from signing or using, and which could have been used only by omission to call the court’s attention to its true character, and was a deceit and fraud upon the court, as well as fraud upon the plaintiff, as assignee, or holder of the claim in suit as collateral security as alleged. Defendants made use of legal proceedings by using said illegal consent to procure a fraudulent and irregular discontinuance of the action, and damage resulted to plaintiff by such use, being “ hindered, delayed and defeated in the recovery of the claim ” in the action then pending of the Neills against Van Wagenen, and sustained damage to the amount of about $10,000. “ Such fraudulent practices are actionable as the cases cited show.” “In such action the evidence of a technical conspiracy is not essential. The damage is the cause of action and the conspiracy mere matter of aggravation.” “ It is enough to sustain such an action that the unlawful acts of defendants occasion trouble, inconvenience or expense to the plaintiff.” Verplanck v. Van Buren, 76 N. Y. 247 ; Quimby v. Strauss, 90 Ib. 664; Swan v. Saddlemaire, 8 Wend. 676; Place v. Minster, 65 N. Y. 89; Tappan v. Powers, 2 Hall, 287-298 ; Goldberg v. Dougherty, 7 J. & S. 189; People v. Tweed, 5 Hun, 382.
    II. The conspiracy or combination alleged was to accomplish the doing of an illegal act, which deprived plaintiff of legal rights and whereby plaintiff sustained legal damage. Code, § 55 ; Keenan v. Campbell, 1 Law Bul. 18 ; Pilger v. Gore, 12 Abb. 244; Chadwick v. Snedeker, 26 How. 360 ; Nebb v. Dill, 18 Abb. 264; Halsey v. Carter, 6 Rob. 535; Peck v. York, 75 N. Y. 421; Coughlin v. R. R. Co., 7 Ib. 449; Wheeler v. Wheeler, 9 Cow. 34; Crockett v. Smith, 14 Abb. 62.
    III. Plaintiff had a legal right to bring such an action as was brought by him, and was not limited to relief by motion. Hackley v. Draper, 60 N. Y. 88; Hill v Hiemans, 59 Ib. 396 ; Truman v. Leland, 6 Hill, 237; Booth v. Bank, 50 N. Y. 396 ; McLean v. Tompkins, 18 Abb. 24.

      Charles M. Marsh, attorney and of counsel for respondent, argued :
    I. In order to lay the foundation of any civil action of damage for a conspiracy the acts complained of must have been illegal. In Buff. Lubricating Oil Co. v. Everest, 30 Hun, 588, it was held that an allegation that the defendants entered into a conspiracy to rain plaintiff’s business, by beginning and causing causeless suits to be begun, gave no cause of action, even if true. If it be no ground of action to begin a causeless suit, it certainly is none to discontinue a well founded one. The plaintiff Neill had a perfect right to settle his claim and discontinue the action, so far as he was concerned. Compton v. Whitehouse, 48 Super. Ct. 207; Pulver v. Harris, 52 N. Y. 76 ; Coughlin v. N. Y. C. & H. R. R. R., 71 Ib. 448.
    n. While under the authorities this settlement was a valid and legal exercise by the plaintiff of his rights as master of the suit, its own validity was between the parties. The attorney had the right to continue the litigation, for the purpose of enforcing his lien. This settlement was no injury to it. Coughlin v. N. Y. C. & H. R. R. Co. 71 N. Y., 448. The proper course would have been for the plaintiff to have applied in the original action to continue the suit, to enforce the lien. This suit cannot be brought. Tullis v. Bushnell, 65 How. 465; McCabe v. Fogg, 2 Mon. L. B. 7; Foreman v. Edwards, 14 Week. Dig. 408.
    HI. But in this case the plaintiff was not even compelled to make this motion. He alleges that the Neills had made an assignment of all their claims to him. The moment the order of discontinuance was entered, he could have commenced a new suit against Van Wagenen, in his own name, and Van Wagenen would have had no defense, except such as he had to the original cause of action.
   By the Court.—Freedman, J.

At the trial, the complaint of the plaintiff was dismissed on the ground that it did not state facts sufficient to constitute a cause of action. The action was brought against thrée defendants who theretofore constituted the parties to an action which the plaintiff, as the attorney for. Charles H. Neill and Henry C. Neill, had brought against Van Wagenen in 1875.

The complaint in the case at bar in substance is as follows, viz.:

1. That the defendants, Neill, had a cause of action on contract against the defendant, Van Wagenen, for $10,000. 2. That the action on this claim was in suit, and plaintiff was the Neills’, attorney in that action. 3. That by parol agreement the Neills agreed to pay or give Eandall one half of their claim or of the money therein, for his services, and also to give him a lien for other services, and for advances made and to be made, amounting in all to about $2,500,. and that they made a parol assignment of their claim to plaintiff. 4. That notice of this claim and this assignment was given to defendant, Van Wagenen. 5. That after this notice, the defendants, Van Wagenen and Neill, fraudulently conspired together to defraud the plaintiff by settling the claim; and that in September, 1877, in consideration of $800 paid by Van Wagenen, said Neills gave a writing acknowledging the settlement of the claim, and a consent that the action be discontinued without costs, and that thereafter an order of discontinuance was entered, and the action thereby discontinued in fraud of plaintiff’s rights. 6. That thereby he lost the amount of his one half interest in the claim, and the benefit of his collateral security.

Upon these allegations, the plaintiff claims damages in the sum of $10,000.

The difficulty with this complaint is that the damages claimed did not flow from the facts alleged. The settlement and discontinuance were good between the parties only. As against the plaintiff, they were irregular, and he might have applied to have them set aside. True, under the law as it stood in 1877, he had no lien upon the cause of action by virtue of his relation as attorney. Nevertheless, if he had moved promptly, the court would have set aside the order of discontinuance, and permitted him to go on with the action on the ground that the settlement and the discontinuance were fraudulent as against him as attorney of record.

Moreover, the plaintiff held an absolute assignment of the cause of action, and Van Wagenen had notice of it. As such assignee, the plaintiff might have brought a new action against Van Wagenen in his own name, and Van Wagenen would have had no defense to it except such as he had to the original action. The discontinuance determined nothing against the plaintiff.

For the considerations stated, the damages alleged cannot be deemed to have resulted from the settlement and the discontinuance, and there is no allegation that they resulted from any other cause. There is not even an allegation of damage resulting from the delay caused by the discontinuance. The complaint is therefore clearly insufficient.

The views so far expressed render it unnecessary to determine the further question whether the action as brought is maintainable as one for conspiracy and fraud.

The complaint was properly dismissed, and the judgment should be affirmed with costs.

O’Gobman, J., concurred.