text:
    CHARLES KIBLER, Administrator, etc., and Another, Appellants, v. LEVI L. MILLER and Others, Respondents.

      Will — when its provisions will be held to execute a power of appointment given to the testatrix by the will of another person.

    A testatrix provided in lier will as follows: “I give, devise and bequeath my property as follows: ” and then directed to what persons and in what shares her estate should be given.

      Meld, that she thereby transferred not only her own individual estate, but a property and estate in which, by the will of another, she enjoyed a life estate with a power of disposing of the same.
    Appeal by the plaintiffs from a judgment, entered in the office •of the clerk of the county of Erie on the 12th day of October, 1889, in favor of the defendants, dismissing the plaintiffs’ complaint.
    The action was brought for the purpose of recovering certain property particularly specified in the complaint, and for determining :as to the amount thereof, and was tried at a Special Term of the .Supreme Court held in Erie county.

      Humphrey & Lockwood, for the appellants.

      B. S. Farrington, for the respondents.
   Macomber, J.:

The plaintiff is the administrator, with the will annexed, of Jacob Grathwohl, and is also one of the legatees under such will and'one of the heirs-at-law of the testator. The defendant Huver is the executor of the last will and testament of Margaret Grathwohl, deceased, the wife of Jacob Grathwohl, and the other defendants are the legatees under this last-named will. Jacob Grathwohl and Margaret Grathwohl, husband and wife, had. resided in the town of Amherst, Erie county, for upwards of fifty years upon a farm which they tilled until unable to do so by reason of old age, and thereafter lived in a house owned by Jacob in the village of Williamsville. Jacob’s property, at the time of the making of his will and at the time of his death, consisted of money, notes, bonds, mortgages and other securities, together with this house and lot where he and his wife resided, amounting in all to about $14,000 in value. His wife Margaret, at the time of making her will and at her death, owned a separate estate consisting of money, notes, bonds and mortgages amounting to about $3,000, which had been under her management and control since her marriage. They both belonged to the same religious order called Mennonites. The persons named in the will of Jacob, and to whom he bequeathed and devised all of his estate remaining at the death of Margaret, were his own blood relations and heirs-at-law; while the persons named in the will of Margaret were her blood relations, and none of them were the same persons named as devisees or legatees in the will of Jacob.

That part of the will of Jacob Grathwohl, material to this appeal, is as follows : First, after all my lawful debts and funeral expenses are paid and discharged, the residue of my estate, both real and personal, which I own or possess at the time of my decease, I give and .bequeath to my beloved wife Margaret for her sole use and benefit during her natural life, and I do hereby authorize and empower her to lease, sell, give and devise the whole or any part thereof, as also to convey title to real estate as may seem proper to her, and after her decease the residue or remainder, if any there should be, shall be distributed by my hereinafter named executor as follows, to wit.”

The material part of the will of Margaret Grathwohl is as follows “ After the payment of my funeral charges, the expenses of administering my estate and my lawful debts, I give, devise and bequeath my property as follows; ” thence follow gifts to each of her live brothers and sisters in equal shares.

The case discloses the fact that Margaret had kept a bank account, in the Erie County Savings Bank which was opened in the year 1855, against which, by her direction, her husband drew as well as herself, and he also made deposits therein to her account. The only bank account of these two persons was kept in Margaret’s name. After Jacob’s death Margaret opened an account with this hank as executrix, drawing from her individual account the sum of $1,218- and putting it into the account of the estate. This last named account was opened in February, 1874, and was closed in 1882 by transferring the balance thereof back into Margaret’s individual account. Margaret also collected all of the moneys due the estate of Jacob, the greater portion of which was transferred to her own name, though a few notes and mortgages were renewed by her and remained in Jacob’s name at her death. She died in the month of April, 1883. She owned no real estate aside from the house and lot above mentioned, which stood in the name of her husband at the time of his death.

The right of the plaintiff to recover depends primarily upon the construction to be placed upon the will of Jacob Grathwohl. There seems not to have been given to Margaret, by the terms of Jacob’s will, an absolute power of disposal; but, on the contrary, there appear qualifying words, such as “ for her sole use and benefit during her natural life.” There is, besides, a complete bequest and devise over to certain persons named, of all the property, both real and personal, which should remain undisposed of at the time of the death of Margaret. These qualifying words and the clear devise and bequest of the remainder which should be left at the death of Margaret, indicate with reasonable certainty that the intention of the testator was to give his wife a life estate only in the property, unless she disposed of the same during her lifetime, or provided for such disposition by the terms of a last will and testament. The language of the will is significant: “And, after her decease, the residue or remainder, if any there should be, shall be distributed,” etc. It is true that the word “devise ” here used commonly applies to the gift of real estate, but not always. It is frequently used in the same sense as “bequeath,” and, among unprofessional persons, applies to all kinds of property, real, personal and mixed.

Having been given the power to dispose of her husband’s estate by will, the next question is, whether or not, by the instrument already mentioned, she has succeeded in so disposing of it as to deprive the plaintiff of any rights as a remainderman, or otherwise, under the will of Jacob. The provision of the Revised Statutes applicable to this case is as follows: “ Lands embraced in a power to devise, shall pass by a will purporting to convey all the real property of the testator, unless the intent that the will shall not operate as an execution of the power shall appear expressly or by necessary implication.” (1 R. S., 737, § 126.) Hnder this statute it required no special mention of the property which she had received under her husband’s will in contradistinction to the property which she held as a separate estate at the time of her husband’s death. In the cases of Bolton v. De Peyster (25 Barb., 539) and White v. Hicks (43 id., 64) the language of the wills was of a most general character, as in this case, and it was held that such wills were effective as an execution of a power to pass property by will. There is not observable in the case any evidence from which an intent on the part of Margaret is disclosed not to devise and bequeath all of the property which she could so devise or bequeath. By her will she had directed the payment of the expenses of her funeral and of the administration of her estate, and of all her lawful debts, and then devised and bequeathed all of her property. The case in this respect strongly resembles that of Mott v. Ackerman (92 N. Y., 549), where general words of gift in a will were held sufficient to convey all the property and rights capable of being disposed of by will.

The judgment appealed from should be affirmed.

Dwight, P. J., concurred; Coblett, J., not voting.

Judgment affirmed, with costs.


source: Caselaw Access Project

author: Macomber, J.:

license: Public Domain

text:
    LOUISE CARR, Appellant, v. DAVID C. HUFF and Others, Respondents.

      Infant — action to protect or recover an infant’s property, in whose name to he brought.

    The better practice in bringing an action, designed for the protection of the property of an infant, or for its recovery, is to bring the action in the name of the infant, represented by a guardian appointed for the purposes of the particular action.
    A judgment in an action brought by a general testamentary guardian for the purpose of charging certain lands with the payment of a legacy given to an infant, where, from the title of the action and the averments of the complaint, it is evident that the action is brought solely in behalf of the infant, and where the recovery is for his benefit, in the absence of fraud or collusion, is binding upon the infant.
    Appeal by the plaintiff from a judgment, entered in the office of the clerk of the county of Monroe on the' éth day of December, 1889, in favor of the defendant, after a trial had at an equity term of the Supreme Court, held in the county of Monroe on the 2d day of December, 1889, at which it was adjudged that an action theretofore instituted in the Supreme Court by David O. Hull and David C. Hull, as executor of the last will and testament of William G. Hull, deceased, and as testamentary guardian of the plaintiff in the present action, then a minor, was duly, properly and legally instituted, and that the judgment therein was in all respects a valid judgment, and that the same, and all proceedings by virtue thereof, were binding and conclusive on the plaintiff in the present action, who was the minor of whom the said David C. Hull was testamentary guardian in the action theretofore brought by said Hull as plaintiff.

      George B. Forsyth, for the appellant.

      D. B. Beach and Arthur F. Sutherland, for the respondents.
   Macomber, J.:

The plaintiff having attained her majority on the 23d day of April, 1889, brought this action to charge certain lands, particularly described in the complaint, with the payment of a legacy of $2,000 bequeathed to her by the will of her father, William G. Huff, who died in the town of Gates, Monroe county, N. Y., January 14, 1879, leaving a last will and testament bearing date three days before his death, and which was subsequently duly probated in the Surrogate’s Court of Monroe county.

By this will the plaintiff was bequeathed the sum of $2,000, and the defendant David C. Huff was appointed not only the executor thereof, but also the testamentary guardian of the plaintiff. The testator died seized in -fee of three acres of land in Gates ; an undivided ninth part of fifty-four acres; an undivided one half of three and one-half acres, and an undivided one-half of a six-acre parcel in the town of Chili.

In the month of January, 1880, the defendant David C. Huff brought an action in this court, individually and as executor, and also as testamentary guardian of this plaintiff, for the purpose, among other things, of charging the lien of the plaintiff’s legacy upon the real estate of the testator and procuring a sale of the lands owned by him.at the time .of his death. This resulted in a judgment in December of that year, adjudging that this plaintiff had a lien upon the real estate for the payment of such legacy, and directing a sale thereof, upon which sale, which was thereafter had, the net sum of $1,023.51 was realized, applicable to the payment of such legacy, and was put into a mortgage of the purchaser of a portion of the premises, with directions by the court that it be deposited with the surrogate of Monroe county to await the coming of age of this plaintiff.

The case is silent as to what has been done with the income of this security from 1880 until the beginning of this action. There is nothing, however, to show that the plaintiff has, since she attained her majority, estopped herself from making the claim now set up by her in this action by having received the proceeds of such sale so procured in the action of David O. Huff. Unless, therefore, she is bound by the judgment procured in the suit of David C. Huff, instituted in her behalf by him as testamentary guardian, her right to recover, in whole or in part, in this action is indisputable.

Yery little need be said touching the three acres of land in the town of Gates above-mentioned, because whatever claim the plaintiff may have had therein was entirely extinguished by the foreclosure of the Crittenden mortgage, in which action this plaintiff was made a party and was properly represented therein by a guardian ad litem duly appointed.

In respect to the other lands mentioned in the complaint the. plaintiff’s rights have not been foreclosed, except as above-mentioned by the action 'of David C. Huff.

The argument of counsel for the appellant is that the action of David C. Huff, although he was the testamentary guardian of this, plaintiff, was not a bar to the maintenance of this action, for the reason that the plaintiff herein was not represented in such action by a guardian ad litem or otherwise than by David O. Huff, the testamentary guardian.

Inasmuch as the action of David C. Huff, which resulted in the above-mentioned judgment, was, in 1-eality, for the benefit of this-plaintiff, the objection so made by the counsel for the appellant is. technical, and, therefore, unavailing unless there is some positive-statute which renders the judgment so taken in the year 1880 nugatory. The title of that action was as follows: “ David C. Huff’ and David O. Huff, as executor of the last will and testament of 'William G-. Huff, deceased, and as testamentary guardian of Louisa. Huff, a minor, plaintiff, against Ferdinand Huff and others.” The recovery therein was solely for the benefit of this plaintiff.

The general rule now is, undoubtedly, that where an infant has a right of action he is entitled to maintain suit thereon immediately without delay on account of infancy, and that before such action is. brought a competent and responsible person must be appointed and appear as guardian for the purposes of the action of such infant.. (§§ 468, 469 and 1686 of the Code of Civil Procedure.)

In the case of Perkins v. Stimmel (114 N. Y., 359), while it is-stated that the theory of the Code is that all actions for an infant, should be brought in his own name by a guardian ad litem, yet. such had not been a fixed and unalterable rule, so as to render null actions brought by a testamentary guardian designed solely for the-benefit of the infant, and where it was apparent that the same was. brought directly in the interest of such infant. In the same case, at General Term (42 Hun, 520), it was held that the action was properly brought, but permission was given to change the same so-as to make it distinctly in the name of the infant. In the case of Coakley v. Mahar (36 Hun, 157), it was held that an action brought by the plaintiff, as general guardian of one Sarah Mahar, to recover one-half of the rent of the premises owned by the infant and the defendant in that action, as tenants in common, was authorized and properly brought in the name of the general guardian of the infant. The same principle is, in a negative way, recognized by the cases of Segelken v. Meyer (14 Hun, 593), and in the'same case on appeal (94 N. Y., 473), where it was held that an action to recover money or personal property belonging to an infant may be brought in the name of the infant by his guardian ad litem although he has a general guardian.

On the whole, while we agree that the better practice is at present to bring an action designed for the protection or the recovery of an infant’s property in the name of the infant, represented by a guardian appointed for the purposes of the action in hand, yet an action brought by the general guardian where, by the title and the averments in the complaint, it is plain to see that the same is solely in behalf of the infant, and where the recovery is for his benefit, is, in the absence of fraud or collusion, binding upon the infant. By the statute (2 R. S., 150, § 3), the guardian is required to take the custody and management of the personal estate of the minor, together with the profits of his real estate, and is authorized to bring such action in relation thereto, as guardian in socage might by law. We perceive in the provisions of the Code no language which works a repeal of this statute, and, consequently, the same must be deemed in force, although, as above stated, under the general scope and purpose of the Code of Civil Procedure, an infant should be represented by a person specially designated by the court or judge to take care of his interests in each particular action.

The judgment appealed from should be affirmed, with costs.

Dwight, P. J., and Corlett, J., concurred.

Judgment appealed from affirmed, with costs.


text:
    CHARLES H. ARTHUR and Others, Plaintiffs, v. ALFRED P. WRIGHT and Another, Defendants.

      Sales of wheat, to he delivered “as soon as possible” — what delay in delivery discharges the purchaser.

    Under a contract made May-25,1887, by which certain dealers in wheat, in Duluth, Minnesota, agreed to deliver the same in Buffalo harbor as soon as possible, a tender of the wheat at Buffalo on the 18th day of June, 1887, the same not having been shipped until the thirteenth day of that month, is not sufficient and the purchasers may properly refuse to receive the same.
    The known difficulty of procuring transportation for the wheat furnishes no excuse to the vendors for such a delay.
    Exceptions ordered to be heard at the General Term in the first instance, after a trial at the Erie Comity Circuit on April 15, 1889, before the court and a jury, at which the court directed a dismissal of the plaintiffs’ complaint, and that the plaintiffs’ exceptions be heard at the General Term in the first instance, and that the entry of judgment be stayed until after the decision of the General Term.
    The action was brought to recover damages alleged to have been sustained by the plaintiffs because of the defendants’ refusal to complete their purchase of 50,000 bushels of wheat at the price agreed, upon delivery at the harbor of Buffalo.

      II. O. Pen/., for the plaintiffs.

      Frank Brunclage, for the defendants.
   Macomber, J.:

Counsel for the respective parties, at the close of the evidence, asked the court to withdraw the case from the consideration of the jury and to direct a verdict. The only question, therefore, is, whether, upon any reasonable view which may be taken of the facts of the case, the judgment can be sustained. If there be contradictory evidence, or if contrary inferences can be drawn reasonably from the uncontradicted facts, we must assume that the version thereof which leads to an affirmance of the judgment is correct. (Fargo v. Milburn, 100 N. Y., 96; Kirtz v. Peck, 113 id., 226.)

This action is to recover upon a contract made May 25, 1881,. between the plaintiffs, who are dealers in wheat in Duluth, Minnesota, and the defendants, who are forwarders, and at times purchasers, of wheat at Buffalo, N. Y. The agreement which was evidenced by telegrams from the respective parties, and subsequently embodied in a letter from the defendants to the plaintiffs, was, that the plaintiffs should sell to the defendants 50,000 bushels of No. 1 hard wheat, at ninety-one cents per bushel, delivered in Buffalo, as soon as possible (as stated in the complaint) by lake transportation. The wheat was to be shipped from Duluth to Buffalo by lake. The usual time for transportation of freight between these two ports is six days. It required but a few hours to load into vessels this amount of wheat. Had the same been shipped from Duluth on the 26th of May, 1887, the day after the contract, it would have been delivered in due course of transportation to the defendants on the first day of June of that year. But the plaintiffs did not ship any part of the cargo until the thirteenth of June, and the wheat did not arrive in Buffalo until the eighteenth day of that month. The defendants refused to receive the cargo and the same was subsequently sold in the interest of the plaintiffs, and this action is brought to recover the sum of $4,500, the difference between the contract-price and the amount realized at such sale.

The contract, as stated in the complaint, was, that this wheat should be delivered in Buffalo harbor as soon as possible. There was no time mentioned for its delivery in the correspondence constituting the contract, and hence the plaintiffs had a reasonable time in which to fulfill their part of the agreement. (Wright v. Bank of the Metropolis, 110 N. Y., 237; Colt v. Owens, 90 id., 368.)

By the evidence of one of the plaintiffs it is established, without contradiction, that vessels for the transportation of freight from Duluth eastward were, at this time, in great demand, and were consequently difficult to obtain. It was also shown by the same witness that the plaintiffs actually procured vessels for the transportation of like freight between these two ports in pursuance of contracts made prior to the twenty-fifth day of May, but which were executed after the agreement with the defendants. Between the twenty-fifth day of May and the thirteenth day of June, inclusive, the plaintiffs actually shipped from Duluth 250,000 bushels of wheat, of which shipments 200,000 bushels were to fill contracts made prior to May twenty-fifth with parties other than the defendants. Such shipments were made May twenty-sixth, May twenty-seventh, June second, June third and June eleventh. When the contract was made with these defendants the plaintiffs knew that vessel-room upon the upper lakes was difficult to obtain.

Such delay of the plaintiffs in delivering the wheat at Buffalo was, under these facts, inexcusable. The delivery was not made within a reasonable time. It was the duty of the plaintiffs under this contract to obtain the wheat and ship the same from Duluth with all reasonable dispatch, and to deliver the same in Buffalo in the usual course of lake navigation. So long as they omitted either to obtain transportation or to load the vessel they failed of their duty to the defendants under the contract. The known difficulty of procuring transportation could furnish no excuse for delay. The defendants were entitled to an exact performance by the plaintiffs of their contract to ship promptly and to deliver within a reasonable time. Failing in this, they have no ground of complaint against the defendants for refusal to accept the wheat on the eighteenth day of June. (Tobias v. Lissberger, 105 N. Y., 404.)

The excejitions taken to the exclusion of the testimony of the witness Arthur, upon his direct-examination, touching the contracts which the plaintiffs had on hand on the 25th day of May, 1887, for the delivery of wheat, is not available on this appeal, for the reason that the witness, on cross-examination, gave all the facts called for on his direct-examination.

The motion of the plaintiffs for a new trial should be denied, and judgment should be ordered for the defendants upon the order of the circuit dismissing the complaint of the plaintiffs.

Dwight, P. J., concurred; Oorlett, J., not voting.

Plaintiffs’ motion for a new trial denied, with costs, and judgment ordered for defendants on the order dismissing plaintiffs’ complaint.


author: Coelett, J.: Macomber, J.

text:
    MARY CURRY, Plaintiff, v. THE CITY OF BUFFALO, Defendant.

      Notice to a municipal corporation of a claim for an injury — chapter 572 of 1886 is applicable to all municipal corporations of a population of 50,000, notwithstanding special provisions in their charters on the same subject — notice of an intention to sue is neaessa/i'y.

    In an action brought to recover for an injury to the plaintiff, sustained in falling upon the sidewalk in the city of Buffalo, and claimed to have resulted from the negligence of the city, it appeared, upon the trial thereof, that the plaintiff, on the 9th day of May, 1888, had presented to the common council of the city of Buffalo a petition directed to that body, which described the injury received, alleged negligence on the part of the city, claimed damages to the amount of $5,000, and closed as follows: “ Wherefore your petitioner prays that an order be drawn upon the proper fund for the sum of $5,000, in favor of your petitioner, to compensate her for her injuries and damages sustained in the premises.” This petition was signed by the plaintiff and verified, and was presented as a ■compliance with the provisions of the charter of the city of Buffalo, providing .that no unliquidated claim for damages for wrong or injury should be received for audit, unless the claim was presented, stating how and where, the wrong ■or injury had happened, and that no payments had been made, and further providing that no action to enforce such claim should be brought until the expiration of forty days after it should have been presented to the common council for audit.
    ■On the 4th day of June, 1886, chapter 572 of the laws of that year took effect, which provided as follows: “No action against the mayor, aldermen and commonalty of any city in this State, having fifty thousand inhabitants or over, for ■damages for personal injuries alleged to have been sustained by reason of the negligence of such mayor, aldermen and commonalty, or of any department, .board, officer, agent or employee of such corporation, shall be maintained, unless the same shall be commenced within one year after the cause of action therefor ■•shall have accrued; nor unless notice of the intention to commence such action, and of the time and place at which the injuries were received, shall have been filed with the counsel to the corporation, or other proper law officer thereof, within six months after such cause of action shall have accrued.”

      Held, that the provisions of chapter 572 of the Laws of 1886 were intended to apply to all municipal corporations in the State having a population of fifty thousand or over, although the words “the mayor, aldermen and commonalty” did not constitute a part of the corporate title or designation of the city.
    That the notice served in this case was not a compliance with the provisions of this act, as it expressed no determination on the part of the claimant of an intention to commence an action against the city. (Macomber, J., dissenting.)

      Exceptions ordered to be heard in the first instance at the General Term after a trial before the court and a jury at the Erie-County Circuit February 24, 1890, at which the court directed that-the plaintiff be nonsuited, with a further direction that all proceedings, be stayed until the hearing and determination of plaintiff’s motion, for a new trial, based upon her exceptions taken upon the trial.

      Adeibert Moot, for the plaintiff.

      Frank O. Lauglilin, for the defendant.
   Coelett, J.:

About the 18th day of December, 1887, the plaintiff received an injury by falling upon the defendant’s sidewalk. The plaintiff claims-that the city was negligent, and that she was free from negligence.. The city put in issue the material allegations in the complaint.

The action was tried before a justice of this court and a jury on the 24th day of February, 1890. At the close of the evidence which tended to prove the plaintiff’s position, the defendant moved for a. nonsuit upon the ground that the plaintiff had failed to comply with chapter 572 of the Laws of 1886. The plaintiff objected to the non-suit which was granted by the court; the plaintiff excepted, and the court ordered the exceptions to be heard here.

Section 7 of title 3 of the charter of the city of Buffalo provides, among other things, that no unliquidated claim for damages-for wrong or injury should be received for audit unless the claim is presented stating hów and where it happened, and that no payments, had been made. It further provides that no action to enforce any such claim shall be brought until the expiration of forty days after it shall have been presented to the common council for audit in the manner ¡irovided in that act.

On the 9th day of May, 1888, the plaintiff presented to the common council a petition directed to that body, which describes the injury received, alleges negligence on the part of the city, claimed damages to the amount of $5,000, and closes as follows : “"Wherefore your petitioner prays that an order be drawn upon the proper-fund for the sum of five thousand dollars in favor of your petitioner to compensate her for her injuries and damages sustained in the-premises.” This petition was signed by the plaintiff and verified.. On the éth day of June, 18S6 chapter 572 of the Session Laws of that year went into effect. It provides as follows :

Section 1. “No action against the mayor, aldermen and commonalty of any city in this state having fifty thousand inhabitants or over, for damages for personal injuries alleged to have been sustained by reason of the negligence of such mayor, aldermen and commonalty, or 'of any department, board, officer, agent, or employee of said corporation shall be maintained unless the same, shall be commenced within one year after the cause of action therefor shall have accrued, nor unless notice of the intention to commence-such action and of the time and place at which the injuries were, received shall have been filed with the counsel to the corporation or other proper law officer thereof within six months after such cause-of action shall have accrued.”

Section 2. “ Nothing in this statute contained shall be construed or held to give or confer any right of action against said corporation for any cause for which such right of action would not have existed, had this act not been passed, nor to affect any right of action which may exist against such corporation.”

Section 3. “ This act shall take effect immediately.”

The plaintiff’s contention is that this act has no application to the-city of Buffalo, mainly because the defendant was always known and designated by that name; and that the act was only intended to-apply to a city designated by the terms, the mayor, aldermen and commonalty. The title of chapter 572 -is “An act in relation to-certain actipns against municipal corporations.” It is a familiar-rule that the title of an act is often resorted to to ascertain its scope- and meaning. (Brick v. Gannar, 36 Hun, 52; People ex rel. Mason v. McClave, 99 N. Y., 83-89.)

There is nothing inconsistent between this act and the provisions-of the defendant’s charter. The object of the charter was to enable the city, through its common council, to have forty days to examine- and determine' whether a claim should be audited before an action could be brought. (Reining v. City of Buffalo, Impleaded, etc., 102 N. Y., 308.)

But the act of 1886 required thp notice specified in it to be delivered to the corporation counsel, or the law officer of the city. The provisions of the charter in no way conflict with the act of 1886. It appears by the case that the application to the common council was denied on the recommendation of the corporation counsel. It requires no argument to prove that chapiter 572, above quoted, was intended to apply to all municipal corporations in the State having .a population of fifty thousand or over. (Dawson v. City of Troy, 49 Hun, 322; Enair v. Brooklyn, 25 N. Y. St. Rep. 1014; Denair v. Brooklyn, 5 N. Y. Supp., 839.)

In the Dawson case the prevailing and dissenting opinions agree that the act of 1886 applies, although the charter of the city of 'Troy requires a verified claim the same as that of the city of Buffalo.

The learned counsel for the appellant contends that the act of 1886 was made general to avoid a constitutional objection ; in other words that it was a successful device to defeat a constitutional provision by indirection. He also claims that many of the cities were originally •designated by the terms : “ The Mayor, Aldermen and Commonalty.” That fact has no significance. Whatever terms were used X’efer•ence was had to the coxporation. All reduxxdant words have been •eliminated in defining municipxal coxporations, excepxt in the case of the city of New York.

The oxxly question to be determined lxex’e is whether the service of the notice on the common council of the city of Buffalo was a substantial compliance with the provisions of the act of 1886. It is not believed there is any difficulty or confusion attending the solution •of this question. The pxetition served on the common council manifestly had reference to the charter. Not only does the pxetition on its face so show, but the argument of the learned counsel for the appxellant is to the effect that the charter alone affects Buffalo, and that the act of 1886 has no application. He does not argue that that act has been complied with or attempted to be, but assumes that if the act includes Buffalo, a nonsuit was properly directed. The purport and scopxe of the pxetition embodied a request to the common council to audit and pay his claim.

The provision of the charter was to prevent the bringing of an action xxntil the common council had forty days time to examine it. The act of 1886 makes it a condition precedent that notice that an action will be brought must be served on tlxe corpxoration coxxnsel within six months, and the action must be brought within a year •after the accident. After notice to the common council that body may neglect or delay action. . The notice of a determination to. bring suit may induce promptness, if otherwise, the city is in no condition to complain, for its common council has been served with the. notice required by the charter, and the city attorney with that, required by the act of 1886. Both of these requisites must be complied with to enable the injured party to maintain the action. But when both are complied with the case can be tried on the-merits. There is no room for the claim that the act of 1886 has-been substantially complied with; as already shown, the learned counsel for the appellant does not so argue.

The trial justice made a proper disposition of the case and a new-trial should be denied.

Dwight, P. J., concurred.

Macomber, J.

(dissenting):

This action was brought to recover damages for personal injuries, sustained by the plaintiff, by reason of falling upon a sidewalk in the city of Buffalo, in consequence of the negligence of the defendant, its agents and servants, in allowing the sidewalk to become* defective and to remain in a dangerous and unsafe condition. The-evidence in behalf of the plaintiff tended to establish the allegations, of her complaint. At the close of the plaintiff’s case, the defendant moved for a nonsuit upon the ground that the plaintiff had failed to show that she had complied with chapter 572 of the Laws of 1886, and that, consequently, she could not maintain this action.

One of the questions before us is, whether this act, entitled “ An act in relation to certain actions against municipal corporations,” is. applicable to the city of Buffalo. The first section of that statute* is as follows:

“ No action against the mayor, aldermen and commonalty of any city in this State having fifty thousand inhabitants or over, for damages for personal injuries alleged to have been sustained by reason of the negligence of such mayor, aldermen and commonalty, or of any department, board, officer, agent or employee of said corporation, shall be maintained unless the same shall be commenced within one year after the cause of action therefor shall have accrued, nor unless notice of the intention to commence such action and of' the time and place at which the injuries were received shall have* •been, filed with the counsel to the corporation, or other proper law •officer thereof within six months after such cause of action shall have accrued.”

The injuries to the plaintiff were inflicted on the 18th day of December, 1887. This action was begun in July, 1888. On the 29th day of May, 1888, she caused to be delivered to the city clerk .and comptroller, to be acted upon by the common council, a petition to the effect that she had so sustained personal injuries while lawfully passing over the sidewalk without negligence on her part. After describing her injuries, and stating the fact that the sidewalk had been out of repair for more than a month before the accident, ■the plaintiff asked “that an order be drawn upon the proper fund for the sum of five thousand dollars, in favor of your petitioner, to ■compensate her for her injuries and damages sustained in the premises.”

No other notice than the above was given to the authorities of the city of Buffalo. This paper, when put in evidence, bore the following indorsement: “Denied on recommendation of corporation counsel. Signed, William Adams, Chairman.” The case shows that the petition was examined by the corporation counsel, who ■advised the committee on claims to decline to pay the demand, but it does not appear when the petition was so examined by him and .his advice so given.

Assuming, for the moment, that chapter 572 of the Laws of ¡886 is applicable to the city of Buffalo, and that the provisions therein ■contained are conditions precedent to the maintenance of this action, it is proper first to inquire whether or not there has not been a substantial compliance therewith by the plaintiff. That statute requires that the action be brought within a year after the injuries have been sustained. This action was brought within the time specified. A further provision thereof is, that notice of the time and place at. which the injuries were received shall be filed with the counsel to the ■corporation, or other proper law officer thereof, within six months .after such cause of action shall have accrued. The application for tlie payment of the demand of the plaintiff, containing a statement of the time and place at which the injuries were received, came to the knowledge of the corporation counsel through the clerk and comptroller, and it was officially acted upon by him and the claim rejected.

There is, therefore, no ground for contending that the plaintiff has not brought herself within the statute, except in regard to the ■following provisions: “Nor unless notice of the intention to commence such action * * * shall have been filed with the counsel to the corporation,” etc.

The petition of the plaintiff to the common council did not, in form, give notice of her intention to begin the action in case her ■demand was not paid; yet,, on the whole, I am inclined to think that an expression of such intention may be necessarily implied in the language of the petition. This statute, being restrictive of the rights of a citizen, should not be extended beyond the purview of the legislature, and a literal reading thereof ought to give way when its substance and the general intent of the legislature, as expressed in the act, have been observed. It is, at most, a statute regulation of the mode of procedure only, and, like all rules of practice, it should be construed in furtherance of justice. The mandatory part thereof has been complied with. The part relating to an intention to begin an action is directory only, and it ought not to be permitted to be interposed to defeat a just demand, particularly as the law officers of the defendant treated the notice served as a literal compliance with the statute.

But was this act intended to apply to all cities of the State of New York having 50,000 inhabitants where such city already had special provisions in its charter regulating and restricting the right of actions in such cases as this ? Section Y, title 3, chapter 519 of the Laws of 18Y0, as amended by chapter 439 of the Laws of 1886, being a part of the charter of the city of Buffalo, declares that “no action or proceeding to recover or enforce any such claim against the city shall be brought until the expiration of forty days after the claim shall have been presented to the common council.” Whatever may have been in the mind of the draftsman of chapter 5Y2 of the Laws of 1886, that act, both in its title and in its provisions, is clearly applicable to all cities of the State having 50,000 inhabitants or upwards, though New York is the only city in the State the legal name of which is the mayor, aldermen and commonalty. We do not assume that this statute was made in form a general law instead of a local act applicable to the city of New York only, in order to avoid the obstacle in section 18, article 3 of the Constitution. If it had been the purpose of the legislature to-make the act applicable only to the city of New York, a direct and legal course would have been to amend the consolidation act relating to that city, for there is nothing in the Constitution prohibiting the amendment to the city charter without making the same applicable to all the cities of the State. In the case of Dawson v. City of Troy (49 Hun, 322) it was held that this law applies to the city of Troy. The report of the case, however, does not show that the city of Troy had any local provision upon this subject, though the same, in fact, existed. In the case of Denair v. The City of Brooklyn (5 N. Y. Supp., 835]; Enair v. Same (25 State Rep., 1014), it was-held that the act was applicable to the city of Brooklyn. At the time of the decision above-mentioned (Denair v. City of Brooklyn), the charter of that city contained no provision requiring the presentation of a claim before the bringing of an action, as is contained in the defendant’s charter, though the city of Troy had such a provision as well as the city of New York. It is to be observed that there is no repealing provision in the act in question. It does not purport to amend or repeal any local act, and it cannot be held to repeal such local acts inferentially or constructively, unless such intent is manifest by the act itself. (Weiler v. Nembach, 114 N. Y., 39; Matter of the Evergreens, 47 id., 216.) A strong circumstance fortifying this position is the passage by the legislature in the year 1889 of an act amending the charter of the city of Buffalo in this particular by incorporating the provisions of the charter and of certain ordinances into a homogeneous statute, wherein it is assumed by the legislature, necessarily, that the act of 1886 had no application. (Chap. 318 of the Laws of 1889; see Potter’s Dwarris on Statutes, 143-147.)

The motion for a new trial should be granted, with costs to abide the event.

Motion for a new trial denied, with costs and judgment ordered for the defendant.


author: Dwight, P. J.:

text:
    SARAH SWARTWOOD, Respondent, v. PHILO WALBRIDGE, Appellant.

      Power of the trustee of a school district to dismiss a teacher — remedy of the teacher.

    The trustee of a school district has the power to discharge a teacher, either with or without cause, to the extent of terminating the employment of the teacher and depriving him of his authority to continue in charge of the school.
    The position of the teacher in such case is not that of a public officer, but of a mere employee of the trustee of the school district in whose service the teacher is employed.
    The remedy of the teacher, if discharged without cause, is not by forcible entry into the school-house, in order to resume his duties as teacher, but to tender a continuance of his services and to bring an action for the recovery of his compensation as if such services had actually been rendered.
    Appeal by the defendant Philo Walbridge from a final judgment, entered in the office of the clerk of Steuben county on the 4th day of December, 1S88, in favor of the plaintiff for the sum of $301.89 ; and also from an order made at a Special Term, and entered in said clerk’s office on the 28th day of January, 1889, denying a motion for a new trial.
    The action was brought to trial at the Steuben Circuit on the 16th day of November, 1888, at which a verdict was rendered by the jury in favor of the plaintiff for $200.

      J. TP". JDinniny, for the appellant.

      A. JMJ. Burrell, for the respondent.
   Dwight, P. J.:

This was an action of assault and battery. The defendant was the trustee of a school district in which the plaintiff had been for some time employed as the teacher of the school. The alleged assault was committed by the defendant in resisting an attempt by the plaintiff to force an entrance into the school-house for the purpose, as she declared, of taking charge of the school, after she had been notified by the defendant that she was discharged from her employment as teacher; and the question is distinctly presented by several exceptions in the record, whether the ■ trustee of a public school has the power to discharge a teacher either with or without cause, to the effect of terminating the employment of the teacher and depriving him of his authority to continue in charge of the school. Of course the trustee cannot by any act of his own, and without the consent of the teacher, abrogate an existing contract which the latter has not violated and stands ready to perform, so as to deprive the teacher of his remedy for a breach of the contract. (Finch v. Cleveland, 10 Barb., 290.) But the question here is not whether the trustee may terminate the contract, but whether he may terminate the employment of the teacher at his pleasure.

The answer to the question manifestly depends upon the relation in which the two stand to each other. If the position of the teacher were a public office, and the trustee the appointing power, we should •expect to find the tenure of the office defined by the statute by which it was created. But there is no such office created or recognized by statute. The teachers of the public schools are not public officers, but simply the employees of the trustees of the schools in whose service they are engaged. (People v. Board of Education, 3 Hun, 177.) They are not appointed, but hired; and the tenure of their employment must be governed by the same rule as that which applies to the case of every person employed in the service of another under a contract of hiring. That contract is one of which neither party can enforce specific performance. No employer can be compelled to retain in his employment a servant of whatever grade, or whatever the term of his employment, beyond the time when it suits his pleasure to dispense with his services; nor, equally, can the person employed be compelled to continue in the employment beyond the limit of his pleasure and convenience. Either is, of course, liable to an action for a breach of the contract, but neither can employ restraint or force to compel performance on the part of the other. This rule, it is apparent, does not impair the obligation of the contract, but merely excludes one mode of enforcing its obligation.

The housekeeper may discharge her cook; the keeper of horses may discharge his groom; the merchant his clerk or bookkeeper; the manufacturer his overseer or superintendent, notwithstanding an unexpired contract of employment, and the remedy of the person discharged is by his action for damages; he can neither compel specific performance of the contract by process of law, nor maintain himself in his position by force. Of course, the rule is reciprocal in its operation; no servant or employee can be compelled, either by legal or personal constraint, to continue to render the services contracted for; he may leave his employment whenever he sees fit, and the remedy of his employer is by action for breach of contract.

Applying these principles to'the case in hand, it seems that the teacher cannot be compelled to remain in the school and teach, nor the trustee to permit her to do so; the obligation of the contract and the remedy for its violation is the same for both. The remedy of the plaintiff, if discharged without cause, was not to force an entrance into the school-house in order to resume her duties as teacher, but to tender a continuance of her services and recover her compensation as if those services had been actually rendered during the term of her employment. If she mistook her remedy, the defendant was justified in resisting force by force, and was liable in this action only for excess of force employed. The error of the trial court was in holding and instructing the jury, in effect, that the trustee had no power to discharge the teacher from her employment, except for good cause shown, and that the teacher, if discharged without such cause, had the right to continue in her employment without the consent of the trustee.

For this error the judgment and order should be reversed and a new trial granted.

Macomber and Corlett, JJ., concurred.

Judgment and order appealed from reversed and a new trial granted, with costs to abide the event.


text:
    THE CITY OF ROCHESTER, Respondent, v. BENJAMIN SIMPSON, Appellant.

      Municipal oi’dinance — limited in its scope, to cases affecting the public health, by reason of the provisions of the statute authorizing its adoption.

    An. ordinance of the city of Rochester required that every owner “ of any stone quarry or premises heretofore used for quarrying stone therefrom within the city of Rochester shall cause the same to be filled with earth even with the surface of the ground before any excavation was made, or shall cause the water therein to be drawn therefrom.”
    In an action brought to recover a penalty imposed thereby, it appeared that the ordinance was based upon a statute authorizing the common council to pass and enact such by-laws and ordinances as they shall from time to time deem necessary and proper for the filling up of any grounds within the said city which shall be sunken, damp, foul, incumbered with filth and rubbish or unwholesome.

      Held, that it was the intention of the statute to provide for the prevention and abatement of nuisances injurious to the public health, and that the ordinance-should be interpreted with reference thereto.
    That the proper construction of the ordinance was not that it required that every excavation or depression in the surface of the ground within the city, which might have been made at any time by the quarrying of stone, should be filled in even with the surface of the surrounding land, but it was limited in its scope to the cases in which such action would tend to promote the public health.
    That there being no evidence that the defendant’s pond, complained of in this case, contained water which was either stagnant or impux-e, or that the existence of the pond was in any manner detrimental to the public health, or to private comfort or convenience, that the ordinance in question had no application to-this case, and that the defendant was not liable to the penalty imposed thereby.
    Appeal by the defendant Benjamin Simpson from a judgment,, entered in the office of the clerk of the county of Monroe on the-15th day of March, 1889, in favor of the plaintiff, the City of Rochester, for fifty dollars damages and thirteen dollars and sixty-five cents costs.
    The action was originally brought in the Municipal Court of the city of Rochester, from the judgment rendered in which the defendant appealed to the County Court, where such judgment was-affirmed and judgment was rendered against the defendant for the amount of the penalty imposed for a violation of the city ordinance-relating to the filling of land situated in the city of Rochester,, which had been used for a stone quarry.

      JR. E. White, for the appellant.

      tG. D. Forsyth, for the respondent.
   Dwight, P. J.:

The action was to recover a penalty imposed by an ordinance of the •city of Rochester, passed October 25, 1887, in. the following terms: Sec. 4. “ Every owner, occupant or lessee of any stone quarry, or premises heretofore used for quarrying stone therefrom, within the city of Rochester, shall cause the same to be filled with earth, even with the surface of the ground, before any excavation was made, or shall cause the water therein to be drained therefrom, and said quarries or excavations kept dry and the water prevented from accumulating or standing therein, under a penalty of fifty dollars for each offense, to be sued for and recovered from the owner, •occupant or lessee thereof, severally and respectively.”

This ordinance was based upon the following .provisions of the statute which constitutes the charter of the city of Rochester.

Sec. 276. The common council shall have power to pass and enact such by-laws and ordinances as they shall, from time to time, deem necessary and proper, for the filling up, draining, cleansing, cleaning and regulating of any grounds, yards, basins, slips or cellars within the said city, that shall be sunken, damp, foul, encumbered with filth and rubbish, or unwholesome.”

It is manifest that both of these enactments must have reasonable interpretation and reasonable application, or they are liable to become the instruments of oppression and to violate the rights of citizens. The whole tenor of the provision of the charter shows that it was intended to provide for the prevention and abatement of nuisances, injurious to the public health, and, among other things, to prevent the accumulation of pools of stagnant and impure water in sunken places within the city. The ordinance .quoted, resting, as it does, wholly upon the authority of this provision of the charter, must be interpreted by reference thereto, and can have no force or application except within the lines and to the intent and purpose indicated by the statute.

Upon the principles thus briefly stated we are of opinion that' the case presented by this appeal does not fall within the scope of the ordinance upon which this action is brought. It is not a-reasonable interpretation of that ordinance that it requires every excavation or depression in the surface of lands within the city which may at any time, however remote, have been made by the quarrying of stone, whatever its present condition or use, to be filled up even with the surface of the surrounding lands; nor that it forbids that, any such excavation should be utilized for an ornamental pond, or for a fish or ice pond, fed and filled from a living source of pure water. Such an application of the ordinance would violate the natural and constitutional right of the citizen to use and enjoy his property in his own way so long as such use interferes with no other public or private right. (People v. Marx, 99 N. Y., 386; Matter of Jacobs, 98 id., 98, 110.)

The provision of the statute quoted was evidently made in the interest of the public health, and the ordinance has no sanction or authority except as it tends to promote the same general purpose. (Babcock v. Buffalo, 1 Sheld. Sup. Ct. Rep., 321; affirmed, 56 N. Y., 268; Matter of Jacobs, supra, 112; People ex rel. Cartmill v. Rochester, 44 Hun, 169.)

This action was apparently brought upon the theory of a literal construction of the ordinance in question. The complaint contains no allegation that the water in the defendant’s pond was either stagnant or impure, nor that the existence of the pond was in any manner detrimental to the public health, or to public or private comfort or convenience. The allegation was merely that the land had been formerly used as a stone quarry, and that it had been permitted to be and remain filled, or nearly filled with water for several months. So too, on the trial, the complainant rested his case on proving the above facts, but, after a motion for a nonsuit, obtained leave, without amending his complaint, to introduce further evidence for the purpose of showing that the pond was “ a nuisance and unwholesome.” Some evidence was thereupon received tending-to show that in the hot summer months an unpleasant odor sometimes arises from the pond ; that there is sometimes a “ green scum ” on a portion of its surface near its edge ; that the bodies of dead, animals, cats and dogs, have been taken from it, and that when raised to a certain height water leaches or soaks from the pond into, some neighboring cellars.

This evidence was objected to and might properly have been, excluded as not within the allegations of the complaint; but upon the whole evidence in the case we think it was not established that the pond was within the condemnation of the ordinance in question, reasonably construed.

In appeared from undisputed evidence that the pond had existed, as suchj for upwards of forty years; that it is of about two acres in extent and from eight to seventeen feet deep; that it is fed by a copious living spring.in one corner; that ice was cut from it at least thirty-four years ago; that the defendant has used it for an ice pond about nineteen years and has erected ice-houses on its bank for the storage of ice; that it is inhabited by fish of various kinds, bass of 'three pounds weight having been taken from it; that about seventeen years ago the defendant pumped out the water, as far as was. possible, by means of a large steam pump, and enlarged and deepened the pond by taking out stone; that he was obliged to run his steam pump three nights in the week to keep the water out sufficiently to-enable him to carry on the work, and that when so emptied the water could be seen pouring in large volume from the spring above mentioned. It also appears that the pond has an outlet into the. Genesee street sewer, which carries off the surplus water beyond that which escapes through fissures in the rock. There is no-evidence that the pond receives any considerable amount of surface water, nor any drainage of an objectionable character. The minute vegetable growth, often called green scum,” at the edge of the pond, and the occasional unpleasant odor from the water in mid-summer, are conditions to which all bodies of fresh water not aerated by rapid motion are subject; and the defendant’s pond is not to be condemned because mischievous or evil disposed persons have sometimes' thrown into it the dead bodies of animals. Should the pond become foul from these or other causes, so as to be injurious to the health or comfort of the neighborhood, a case would arise for the application of an ordinance, based upon the provisions of the statute, requiring it to be cleansed; and it is probable that the board of health of Rochester have already ordinances in force adequate for that purpose.

It seems to us clear that, upon the evidence before us, the ordinance under which this action was brought can have no application to the case of the defendant’s pond except upon a literal construction of its terms, not warranted by the statute under which it was framed, and which in this case would be unreasonable, oppressive and subversive of the rights of the defendant.

We think the judgments of the County Court and of the Municipal Court must be reversed.

Corlett, J., concurred; Macomber, J., not voting.

Judgment of the County Court and of the Municipal Court of Rochester reversed, with costs of this appeal and in the County Court.


text:
    THEODORE TOWNSEND, Respondent, v. THOMAS TOLHURST, Appellant.

      limitation of the time, for the issuing of an execution on the judgment of a Justice’s Court, docketed in the coitnty clerk’s office — right to appeal to the Supreme Court from an order authorizing it.

    On an application made December 7,1889, to the County Court for leave to issue an execution on a judgment rendered by a justice of tlie peace, May 23, 1878, a transcript of which was filed and docketed in tlie county clerk’s office on the 23d day of November, 1878, it was contended that the judgment was barred after the lapse of six years from the time of its rendition.

      Held, that the issuing of an execution on such a judgment was not barred by the six years’ statute of limitations.

      Quaere, whether an order of the County Court granting leave to issue an execution is appealable to the General Term of the Supreme Court, where the judgment was originally recovered in a Justice’s Court and a transcript thereof was filed and judgment was docketed thereon in the clerk’s office of the county,
    Appeal by the defendant Thomas Tolhurst from an order made by the County Court of Niagara county, on the 7th day of December, 1889, granting leave to the plaintiff to issue an execution upon a judgment recovered in the above-entitled action.

      Charles Hickey, for the appellant.

      Henry M. Davis, for the respondent.
   Macomber, J.:

Tlie affidavit upon which the order of the county judge was .granted shows, without contradiction, that a money judgment was recovered by the plaintiff against the defendant in the court of a justice of the peace on the 23d day of May, 1878, and that on the twenty-third day of November of that year a transcript thereof was filed with the county clerk of Niagara county and the judgment •duly docketed ; that no execution had been issued upon such judgment and that no part of the judgment had been paid, and that more than five years had elapsed since the docketing of such judgment. These allegations clearly bring the moving party within the provisions of section 1377 of the Code of Civil Procedure which permits an execution to be issued upon application to the comt and upon due notice, provided that the judgment so docketed in the county clerk’s office had, at the time of the granting of the motion, .a valid existence.

It is contended by counsel for the appellant that the order was ■erroneous, inasmuch as an action upon a justice’s judgment is barred after the lapse of six years from the time of its rendition under .subdivision 7 of section 382 of the Code of Civil Procedure. This proposition, however, was distinctly repudiated in the case of Waltermire v. Westover (14 N. Y., 16) where it was held that the statute of limitations, as it existed under the Revised Statutes (2 R. S., 295, § 18), which is now embodied in the subdivision of section 382 already noted, did not extinguish or destroy the lien -created by the judgment as docketed in the county clerk’s office. The obligation of the defendant to pay a debt was not obliterated by lapse of time, for the statute acts only on the remedy and not upon the obligation to pay. (Johnson v. Albany cmd Susquehanna R. R. Co., 54 N. Y, 424.)

There is nothing in the case of Davidson v. Horn (47 Hun, 51) which controverts the foregoing proposition, for in the last-named case the statute of limitations had run against the justice’s judgment before the transcript thereof had been filed in the county clerk’s office, while in the case before us six months only had elapsed between the rendering of the judgment by the justice of the peace and the record of the same in the county clerk’s office.

Much reliance has been placed in this appeal upon the case of Dieffenbach v. Roch (112 N. Y., 621); but that decision is simply to the effect that a judgment of a justice of the peace, docketed in the county clerk’s office, is not a judgment “rendered” in the-County Court, but remains “ a judgment rendered in a court not of record ” within the meaning of the provision of subdivision 7 of section 382 of the Code of Civil Procedure, declaring that an actiom upon such a judgment must be commenced within six years after the final judgment was rendered. That case did not undertake to and did not, in fact, impair in the slightest degree the decision of th© same court in Waltermire v. Westover, already referred to.

Under these provisions of the Code and these authorities, th© order of the County Court was properly made.

This conclusion renders it unnecessary to consider the question, whether or not the order so made is appealable to this court. It. was held in Kincaid v. Richardson (25 Hun, 237), that no appeal, lies to the General Term from an order of the County Court granting leave to issue an execution upon a judgment recovered in a. Justice’s Court where a transcript thereof was filed and judgment, thereon docketed in the clerk’s office of the county. The conclusion of this court in that case finds corroboration in the decision in Dieffenbach v. Roch (supra). Section 1342 of the Code of Civil Procedure-seems to limit the review by this court of orders of the County Court, affecting a substantial right, to those cases where the-action is brought in or is taken by appeal to that court. This case does not come within that class. But we prefer to r.est our decision on the proposition first discussed above.

The order appealed from should be affirmed, with ten dollars-costs and disbursements.

Dwight, P. J., and Corlett, J., concurred.

Order of the County Court affirmed, with ten dollars costs and disbursements.


text:
    ANNA E. TALCOTT and Others, Respondents, v. THE CITY OF BUFFALO and JOSEPH E. BARNARD, as Comptroller of the City of Buffalo, WILLIAM SUMMERS and Others, Appellants.

      Municipal corporation — -substitution of electric light for gas light — petition of a majority of the property owners in opposition thereto —violation of the rules of the common council in passing the resolution therefor — right to prevent the waste of public funds.

    In an action brought to restrain the authorities of the city of Buffalo from substituting in Bouck avenue, in that city, electric street lighting for that of gas, it appeared that under the ordinances of the common council of that city, in the year 1875, the Buffalo Gas-Light l ¡ompany had placed gas lamps and mains and • service pipes in a portion of the avenue, which it was proposed to light by electricity, and that the expense thereof was paid by the city, but was received back by it from local assessments upon the property of persons benefited thereby; that a majority of the taxpayers along the street had presented a petition to the common council in opposition to such change of light, and it was alleged that the resolution providing for this change of light was passed in violation of the rules passed by the common council for its own guidance.

      Held, that, in the absence of a provision to that effect in the city charter, the common council was not required to act in the matter of street lighting in accordance with the request of a majority of the taxpayers.
    That there was no law which prohibited the common council from suspending its own rules, and that any such suspension of the rules could not form the basis of a complaint from outside parties unless it was done for the purpose of deceit.
    The complaint alleged that the construction of the poles for the electric lights would impair the value of the land along the avenue in question, including that owned by the plaintiffs; that the contract-price for lighting that avenue by eiectricity was “ unreasonable, excessive and exorbitant, and largely in excess of the price at which said electricity could profitably be furnished to said city ” for lighting said avenue; that the said price of $164.25 was fixed, pursuant to an agreement and combination of the persons and corporations, or alleged corporations, owning or having control of the different electric-light plants in said city of Buffalo, and was largely in excess of the value and of the cost of such light.
    The complaint also contained other allegations to the like effect.
    Upon the hearing of the issues raised by a demurrer interposed to this complaint:

      Held, that a case was presented which authorized the intervention of the court, under the provisions of chapter 531 of the Laws of 1881, as amended by chapter 673 of the Laws of 1887, the acts for the protection of taxpayers against the waste of public funds.
    Appeal by the defendants, other than the United States Electric-Light and Power Company, from an interlocutory judgment, entered in the office of the clerk of Erie county on the 22d day of November, 1889, upon a decision rendered at Special Term upon the trial •of the issues of law raised by demurrers interposed to the plaintiff’s complaint.
    The judgment appealed from overruled the demurrers interposed by these defendants, with costs, but with leave to answer within twenty days upon payment of said costs. The action was brought under the taxpayers’ acts to enjoin the substitution of electricity for gas in the lighting of Bouck avenue in the city of Buffalo.

      Frank G. LcmghUn, for the appellants.

      Norris Morey, for the respondents.
   Macomber, J.:

The appellants, other than the City of Buffalo and Barnard, the comptroller, are the aldermen constituting the common council of that city.

There seems to be no merit in that part of the demurrer alleging that the common council, by name, is a necessary party under chapter 519 of the Laws of 1870, which constitutes the charter of the city of Buffalo. We do not understand that the common council has any corporate existence, but is only a name to designate a body of aldermen of the city.

The grave question is, whether the facts alleged in the complaint constitute a cause of action against the defendants who have appealed.

The case is brought to restrain the authorities of the city of Buffalo from substituting electric street lighting for that of gas in Bouck avenue between Niagara street and Chapin Place. Under the ordinances of the common council of the city, the Buffalo Gas-Light Company, in the year 1875, placed in a portion of this avenue gas lamps and mains and service pipes, and the expenses thereof were borne by the city, but the same were received back by the city under local assessment upon the property of the persons benefited thereby. Extensions of these mains and increase of the lamps were made subsequently; so that, in 1885, this entire avenue between the points stated was sufficiently supplied with gas for the proper lighting of the street to the satisfaction of the city, and particularly of the residents along this avenue.

The complaint further shows, at some length, that an alleged majority petition of these inhabitants was presented to the common-council for the exchange of this gas lighting to electric lighting, and a resolution granting the prayer of the petition was passed by that body on May 7, 1888. Subsequently an opposing petition against the electric light, and in favor of gas lighting, was presented to the common council, which, it is said, contained a majority of the names-of the taxpayers, both in number of persons and in value of property ; .but that the same was disregarded by the aldermen.

There are other allegations in the complaint to the effect that the resolution, as originally passed, and as subsequently adhered to, notwithstanding the veto thereof by the mayor, was passed in violation of the rules established by the common council for its guidance. In the charter of the city of Buffalo, however, we do not find any provision which requires the common council to act in the matter of street lighting in accordance with the request of the majority of the-taxpayers; nor do we find therein any law which prohibits the council from suspending its own rules, which, like those of all other parliamentary bodies, are enacted for its own guidance, the suspension of which cannot form the basis of any complaint from outside parties, unless the same is resorted to for the purpose of deceit, of which there is no pretense in this case.

But there is a serious question presented by the complaint, going directly to the question of abuse or misuse of official authority by the common council, by which the corporate property and moneys are so improperly and improvidently expended as to constitute a waste of public funds, under chapter 531 of the Laws of 1881^ as amended by chapter 673 of -the Laws of 1887, entitled “An act for the protection of taxpayers.” The present statute is aimed to prevent any illegal official act on the part of municipal officers, and to prevent waste or injury to property, funds or estate-of a municipality, and to make good the loss if any such has happened. The most important addition to the original law is the last clause of the present statute, which is as follows: “ The provisions of this act shall apply as well to those cases in which the body, board, officer, agent, commissioner or other person above named has not, as to those in which it or he has jurisdiction over the subject-matter of its action.”

Beyond question, the common council of the city of Buffalo had, under its charter, full power and control over the lighting of the streets of that city. Under this amendment, however, the members of that body cannot prevent the interference of a court of equity upon the ground that, having jurisdiction of the subject-matter, their action has the protection accorded to legislative discretion, and, therefore, not reviewable by the courts. Some cases, not necessary now' to be referred to, had, with greater or less distinctness, intimated the existence of such a rule under the act as it originally .stood, and this amendment was doubtless supplied with a view of enabling the courts to interpose by injunction, -where the contemplated action by the common countil, though within its jurisdiction, was likely, through improvidence or carelessness, as well as through fraud and corruption, to result in the waste or injury to the funds of the municipality. It is no longer necessary for the taxpayer, in order to maintain his action, to allege and prove actual fraud or actual corruption on the part of the common council, or of any other municipal officer, as a basis of relief. The proof of such corruption and fraud, even where there exists a moral certainty of its existence, is a difficult matter to establish. This act, so passed for the protection of the taxpayer, should be liberally construed by the courts in order to make effective the effort of the legislature to check the evils of careless, improvident, reckless, fraudulent or corrupt action by the persons in charge of the administration of the affairs of municipal corporations. The language of Judge Allen, in the case of Ayers v. Lawrence (59 N. Y., 192), though given in a case arising under the Laws of 1872, is, in its generalization, applicable to the statute as it now stands, and it has frequently been made the .subject of judicial approval.

If these demurrers were interposed for the purpose of presenting to the court the question whether it was competent for the common ■council to dispense with the lighting of the public streets by gas and make a substitution therefor of electricity, even at a material increase of expense, they fail of their purpose. Had answers, instead of demurrers, been interposed, and the plaintiffs been put to their proofs, doubtless many of the allegations contained in the complaint would have failed of substantiation, while others might probably be easily disproved by the defendants ; but we can take no judicial notice of the likelihood of such a result at the trial. All •of the material allegations of fact are admitted by the demurrers. The sole question, therefore, is whether or not such facts are sufficient, when conclusively proved, to afford relief to the taxpayer.

The complaint alleges that the construction of the poles for electric lights would impair the value of the land along this street, including that owned by the plaintiffs; it further alleges that the contract-price, namely, $164.25 per light for lighting that avenue by •electricity “ is unreasonable, excessive and exorbitant, and largely in •excess of the price at which said electricity could profitably be furnished to said city for lighting said street; that the said price of $164.25 is fixed pursuant to an agreement and combination of the persons and corporations or alleged corporations owning or having control of the different electric-liglit plants in said city of Buffalo, and is largely in excess of the value and of the cost of such light and of the price paid for lighting streets by electricity by other municipalities in the vicinity of Buffalo and in other parts of the State of New York and in other places in the United States; and that the cost of lighting Bouck avenue by electricity, as proposed and determined by the common council of said city as aforesaid, will greatly exceed the cost of lighting said street as heretofore by gas; that such proposed lighting of Bouck avenue by electricity will displace forty-nine lamps now used for lighting said street by gas, and that thereby the said city of Buffalo will lose the use and will substantially lose the value of said forty-nine lamps, posts and connections; that the said forty-nine lamps, posts and connections cost the city of Buffalo about the sum of $1,950 ; that the cost of lighting said Bouck avenue by electricity with twelve electric lights as proposed by the said resolution and determination of the common council will be $1,971 per annum, and the cost of lighting the same portion of Bouck avenue by gas at the price proposed by the gaslight companies, and accepted by the city aforesaid, amounts to only the sum of $1,071.63 per year, making an increased annual expense for lighting the said portion of Bouck avenue by electricity with said twelve electric fights of $899.37.” There are other allegations to the effect that this avenue is now lighted by sixty lamps at an expense per year of twenty-seven dollars and eighty one cents per lamp; that such gas lighting is sufficient and economical and such as is desired by a large majority of the people of Buffalo and of taxpayers owning lands upon this avenue; “ that lighting by gas diffuses the light upon a street much more equally and uniformly than lighting by electricity and is better adapted to and furnishes a better and more satisfactory light for a residence street,” which Bouck avenue is shown to be exclusively.

If all these allegations in the complaint were established as matters of fact, as they must be deemed to be under the demurrers and for the purposes of this appeal, the judgment to be pronounced by the court would bé unmistakable. They present a case literally within the language of the act above referred to.

The interlocutory judgment appealed from should be affirmed,, with costs.

Dwight, P. J., and Corlett, J., concurred.

Interlocutory judgment affirmed, with costs.


text:
    ANTON WEISEMAIR, Appellant, v. THE CITY OF BUFFALO, Respondent.

      Municipal corporation — contract for public work — abandonment thereof by the contractor — right of a lienor to the percentage retained by the city under the terms-of the contract.

    One Winter, wlio had entered upon the execution of a contract to complete a local improvement in the city of Buffalo, which provided that the city should retain twenty per cent of the contract-price until three months after its completion, having done a certain amount of work abandoned the contract, leaving in the hands of the city, unpaid to him for the work done, the sum of $155, which was less than twenty per cent of the value of the work done.
    Thereafter a mechanic’s lien was filed, under chapter 815 of 1878, by one of the workmen of Winter, the lienor claiming that he was entitled to this balance of $155 for work done by Winter prior to his abandonment of the contract. Subsequently to Winter’^ abandonment of the work his sureties completed it under an agreement with the city that they should receive for the work required to-be done by them the balance of the contract-price not already paid to Winter. The value of this work done by the sureties exceeded the compensation so-agreed to be paid to them.

      Held, tliat tiie provision for the retention by the city of twenty per cent of the amount due on the contract was not made for the benefit of the contractor or his employees, but for the benefit of the city.
    That the lienor had no lien on any portion of the balance of the contract-price, because no part of it had ever become due to the contractor.
    That the contract with the sureties was a new contract and could not enure to the benefit of the original contractor, nor to that of his lienors.
    Appeal by the plaintiff Anton Weisemair from a j udgment, entered in the office of the clerk of the county of Erie on the 28th day of July, 1888, after a trial in the Erie County Court before the county judge and a jury, at which a verdict was directed by the court in favor of the defendant.
    The action was brought to enforce the payment of an amount claimed to be represented by mechanics’liens which had been filed by the plaintiff and one William Loehr, his assignor, who were employed by Frank Winter in the execution of certain city work which Winter had agreed with the defendant, the City of Buffalo, to perform.

      Giles F. Stillwell, for the appellant.

      Frank G. La/aghlin, for the respondent.
   Dwight, P. J.:

The plaintiff and his assignor of a portion of the claim sued upon, were workmen in the employ of one Winter on a contract of the latter to do the work of a local improvement in the city of Buffalo. By the terms of the 'contract the defendant was entitled to retain twenty per centum of the contract-price until three months after the completion of the work. On the 7th of June, 1887, the contractor having done work to the amount of $1,275, and having been paid thereon the sum of $1,120 abandoned the work, leaving in the hands of the defendant the sum of $155, or less than twenty per centum of the value of the work done. On the twenty-fifth day of June, the plaintiff and his assignor filed mechanics’ liens, under the provisions of chapter 315 of the Laws of 1878, for the amount of their claims for work done before' June seventh. Thereafter the defendant notified the sureties of the contractor to complete the work, and they did so under an agreement with the defendant that they should receive for the work required to be done by them the balance of the contract-price not already paid to Winter; and upon their completion of the work August 1, 1887, that balance was paid to them. The value of the work done by the sureties was more than the compensation so paid.

The contention on the part of the plaintiff is that the hens of himself and his assignor, though hied after the abandonment of the work by their employer, Winter, and after payment to him of more than the full amount, which he was entitled to receive up to that time, attached to the balance of $155 retained under the contract; that the payment of the entire balance of the fund on the first of August to the parties completing the work, while it defeated the hens excused the lienors from bringing an action to foreclose within the ninety days limited by the statute or at any time thereafter, and that the defendant is liable for its wrongful act in paying out the balance of the fund; and we understand counsel to contend that the act was wrongful for two reasons, first, because it defeated the provisions of the statute which give the lienors ninety days after filing their hens in which to commence an action to foreclose them; and, second, because it was in direct violation of the defendant’s contract to retain twenty per centum of the money earned for three months after the completion of the work.

Neither of these positions is at all tenable. The provision of the contract referred to was not for the benefit of the contractor, still less for that of his employees, but for the benefit of the city as security on the part of the contractor that the work done should remain or be kept in repair for the period named after its completion. It was a condition which the city might waive at its pleasure, and under which no other party could claim any rights.

The other ground of contention is equally unavailing. The lienors had no hen on any portion of the balance of the contract-price, because no part of it ever became due to the contractor. By abandoning the work before its completion the contractor forfeited all right to the balance retained by the city. That balance was not to become due to the contractor until three months after the completion of the work under the contract with him. The contract with his sureties was a new contract, and could not enure to his benefit nor to that of his lienors. (Haswell v. Goodchild, 12 Wend., 373; Hagan v. American Baptist Society, 6 N. Y. State Rep., 212, 217, and the cases cited.)

The question of fact whether Winter had agreed with his sureties to complete the work for $200, the balance of the contract-price over and above the amount retained by the city on the work done by the former was immaterial. There was no pretense that the city or its officers had any notice of such an agreement if it was made, and the evidence is undisputed that they contracted with the sureties in good faith, and that the price paid to them was not more than the actual value of the work done by them.

The judgment of the County Court was right and must be affirmed.

Macombeb and Corlett, JJ., concurred.

Judgment of County Court of Erie county appealed from affirmed, with costs.


text:
    EMMETT STEPHENS, Respondent, v. MARSHALL J. AYERS, Administrator, etc., Appellant.

      Account stated — what evidence is required to establish it.

    It is essential to tlie establishment of an account stated, that the party to be charged should either expressly or by implication admit the correctness of the account as a valid claim against him.
    Evidence that a party against whom an account was presented began by expressing surprise at the amount of a bill, then declared that it belonged to another person to pay it, then suggested a possible defense or counter-claim, and ended by a naked promise to pay it and avoid trouble, does not establish, as against him, an account stated. An account stated consists not of a promise to pay, but of an admission that an account is just and true.
    Appeal by the defendant from an order, entered in the clerk’s office of Steuben county on the 30th day of November, 1889, denying defendant’s motion to confirm the report of a referee and granting the claimant’s motion for a new trial.
    The order was made at a Special Term, held in the county of Monroe on the 25th day of November, 1889, in the case of a reference, under the statute of a disputed claim against the estate of Thomas Hallett, deceased.

      Eli Sozde, for tlie appellant.

      De M. Page, for the respondent.
   Dwight, P. J.:

The claim referred was against the estate of Thomas Hallett,, deceased, as upon an account stated in his lifetime. The evidence in support of it was the testimony of an attorney who presented a statement of the account to Mr. Hallett a month before his death,, and who gave the following version of what took place : “ I think he took it and looked at it, and said that the account was larger than he thought it was, and said that Perry ought to have paid it. I said that I did not know anything about that, but that it was left with me to sue if not paid at once. He said Emmett better not sue it as he was carrying a watch that was his (Hallett’s). I said that had nothing to do with it as my instructions were to sue it. He then says, I will see Emmett and pay it, I will have no trouble about it.” This narrative, substantially repeated on cross-examination, is all the-evidence in the case in support of the plaintiff’s claim. We think it falls short of establishing an account stated between the plaintiff and the deceased.

It is essential to an account stated that the party to be charged should, either expressly or by implication, admit the correctness of' the account as a claim against him. In this case the deceased began by expressing surprise at the amount of the bill; then declared that it belonged to another person to pay it; then suggested a possible defense or counter-claim, and ended by a naked promise to pay it to avoid trouble. All this, it is true, he might have done if the indebtedness had been his own and the amount undoubtedly correct; but. what he said was no admission of either of those facts, while his ¡iromise to pay rather than have trouble indicated an unwillingness, to concede that the account represented a just debt which he was. bound to pay. Moreover, the account, as presented to the administrator, showed on its face that the principal item originated in transactions between the plaintiff and Perry Hallett, the person mentioned by the deceased as the one who ought to have paid the account. The item referred to is as follows:

“Sept. 1, 1882. To amount due on dissolution of partnership, between Perry J. Hallett and Emmett Stevens, $112.00.”

The item is entirely -unexplained by the evidence; there is nothing to suggest a reason why Thomas Hallett should have been asked to pay it. In order to charge his estate with its payment after his death, on the principle of an account stated, the evidence of his admission of its correctness, as a charge against him, should be clear and unequivocal.

Of course, there could be no recovery upon the promise of the deceased as such. An account stated consists not in a promise to pay, but in an admission that the account is just and true. The promise is of no effect except by way of admission that the debt is that of the promissor. If it is that of another, such a promise is without consideration and void by the statute of frauds.

The evidence being undisputed, it was a question of law whether the facts constituted an account stated. (Lockwood v. Thorne, 18 N. Y., 285, 288.) We think the referee was justified in this case in holding that an account stated was not established, and that his report dismissing the claim should have been confirmed.

The order of the Special Term should be reversed and the report of the referee confirmed.

Macomber and Corlett, JJ., concurred.

Order of Special Term reversed and the report of the referee confirmed, with costs of this appeal and of .the Special Term.


text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. NIAGARA FALLS HYDRAULIC POWER AND MANUFACTURING COMPANY, Respondent, v. EDWARD E. RUSSELL, RODERICK D. PORTER and ROBERT JOYCE, Assessors, and BYRON B. YOUNG, as Clerk of the Village of Niagara Falls, Appellants.

      •Costs in proceedings to review an assessment under chapter 269 of 1880 — cannot he collected, by tax where they are not chargeable to the assessors.

    In proceedings under chapter 269 of the Laws of 1880 to review an assessment made for the purposes of taxation, where it does not appear that the assessors acted with gross negligence, in bad faith, or with malice, the court cannot .award costs to the relator, although the assessment is ordered in such proceedings to tie reduced; nor can the court, under such circumstance, direct that such costs of such proceedings he levied in the same or the next tax levy, and •when thus raised he paid to the relator.
    Appeal by the defendants from so much of an order entered in the office of the clerk of the county of Niagara in the above-entitled matter on the 30th day of January, 1889, as directed that there shall be audited and allowed to the relator therein and included in the next annual tax levy of the village of Niagara Falls, N. Y.r the sum of $180.14 as relator’s costs and disbursements in such proceedings, and that the same be paid to the relator.
    The proceeding was instituted under the provisions of chapter 269 of the Laws of 1880, to review an assessment made upon the relator as the owner in fee of certain lands in the village of Niagara Falls, N. Y. The assessment complained of was by an order made at a Special Term of the Supreme Court held in the county of Erie on the 19th day of July, 1888, in the above-entitled matter reduced by the sum of $4,640, that is to say, from the sum of $23,200 to the sum of $18,560.
    IF. Garyl Ely, for the appellants.

      Charles II. Piper, Sr., for the respondent.
   Macomber, J.:

The defendants are the assessors of the village of Niagara Falls. In making up the assessment-roll in the year 1887 they placed certain lands owned by the relator upon the roll at the valuation of $23,200. The relator claimed such valuation to be excessive, unequal and not proportionate to the value of other real estate in that village. Upon the day set for hearing grievances the relator duly appeared and was heard, and a slight reduction was made, but not enough to satisfy its demands, A writ of certiorari, under the statute, was duly issued, and upon the return thereto, and upon the evidence subsequently taken, it was decided by the Special Term that the assessment should be reduced to the sum of $18,560, making a reduction of $4,640.

The tax upon this excessive valuation, namely, fourteen dollars- and thirty-seven cents, haying been paid by the relator, was properly directed by the court to be audited and allowed by the assessors in the next annual tax lexy of the village of Niagara Palls. (Sec. 8, chap. 269 of the Laws of 1880, as amended by chap. 342 of the Laws of 1887.) Without such direction by the court, it would have been the duty of the assessors so to enter the same in order to reimburse the plaintiff for an unlawful payment exacted of him.

The provisions for the allowance or withholding of costs in this proceeding is found in section 6 of chapter 269 of the Laws of 1880, which is as follows: Costs shall not be awarded against assessors or other officers whose proceedings may be reviewed under this act, unless it shall appear to the court that they acted with gross negligence, in bad faith or with malice. If the writ shall be quashed or the prayer of the petitioner denied, costs shall be awarded against the petitioner, but the costs shall not in any case exceed the costs and disbursements taxable in an action upon the trial of an issue of fact in the Supreme Court.” The rule governing costs in certiorari proceedings generally (Code of Civil Pro., § 2143), has no application to this proceeding. (People ex rel. Fairfield, etc., Co. v. Coleman, 18 Abb. N. C., 246.) In the absence of a holding by the Special Term or by this court, that the action of the assessors was grossly negligent or in bad faith, or with malice, no costs under this statute can be permitted against them. (People ex rel. Mann v. Peterson, 31 Hun, 421; People ex rel. Ogdensburg, etc., Co. v. Pond, 13 Abb. N. C., 1.)

The learned justice presiding at Special Term has, in his opinion, fully and completely exculpated these assessors from any negligence, bad faith or malice. He has written an opinion to the effect that they acted honestly and intelligently, and committed only an error of judgment, such as any honest person is liable to fall into. The costs of the relator have, as it has been stated above, under these circumstances, been permitted to be saved to it, although clearly enough under the statute, and under the decisions cited, they could not be recovered from these defendants. This has been done by a direction in this proceeding to the assessors to levy the same in the next tax levy and to pay the same over to the relator. We are unable to find any statutory or other authority for this part of the order appealed from.

The costs amount to $180.14, while the reduction of the tax is only fourteen dollars and twenty-seven cents. Yet there is no provision of tbe law by which the relator can be permitted to recover such costs, except in the cases where it is shown that the assessors have acted with gross negligence, or bad faith, or maliciously. The persons upon whom these costs are directed to be levied were not parties to this proceeding, nor was the village of Niagara Falls a party thereto Under the statute the controversy is solely between the aggrieved taxpayer and the assessors. In the absence of a statutory provision by which these costs may be collected in the way prescribed in this ■ order, the direction to the assessors contained therein must be deemed to be erroneous.

The examination of the evidence leads us to the same conclusion reached by the Special Term, that the assessors acted fairly and honestly. Otherwise, upon their appeal, we might probably modify the order and charge the costs directly upon them personally.

That portion of the order which is appealed from should be reversed, but, under the circumstances, without costs.

Dwight, P. J., and Corlett, J., concurred.

That portion of the order which is appealed from reversed, but without costs.