text:
    SARAH HILL, Respondent, v. THE BOARD OF SUPERVISORS OF RENSSELAER COUNTY, Appellant.

      Biot act— the gvdng of liquor to the rioters precludes a recovery — statute of limitations — application of, to an action brought under chapter 428 of 1855.
    In an action, brought to recover damages under chapter 428 of the Laws of 1855, entitled "An act to provide for compensating parties whose property may be destroyed in consequence of mobs or riots,” it appeared that three men, characterized in the evidence as “roughs,” came to a hotel kept by the plaintiff in the village of Lansingburgh, which was at the time in the charge of two female servants; they inquired for the plaintiff and said they came to kill her. When told that she was not home they asked for lager beer, which was furnished them, the two female servants drinking with them two or three times and the' ‘ roughs ” drinking six or seven times. The roughs then began to dance and sing and to assault the women, who, in their fright, ran out of the house, whereupon the men broke and destroyed furniture, glassware, pictures and other articles belonging to the plaintiff.

      Jlekl, that the plaintiff was not entitled to recover the damages thus sustained, by reason of the provision of the act, to the effect that no person shall recover thereunder, if it shall appear that such destruction or injury “was occasioned, or in any manner aided, sanctioned or permitted by the carelessness or negligence of such person,” as it appeared that the rioters became riotous only after they had been supplied freely with intoxicating liquors by the servants of the plaintiff.
    That, presumably if they came there with evil intent, such intention was increased by reason of the liquor that was furnished to them.

      Paladino v. The Board of Supervisors of Westchester County (47 Hun, 337) followed; Ely v. The Supervisors of Niagara County (36 N. Y., 297) distinguished.
    That a claim that the plaintiff’s servants were induced to sell the rioters liquor through fear was not sustained by. the evidence, which tended to show that the rioters came to the house for the purpose of killing the plaintiff only.
    The plaintiff, previous to the commencement of the action in which this appeal was taken, had brought an action in the County Court, upon the same cause of action, within three months after the injury was done, which action was dismissed by that court for want of jurisdiction, and thereafter, aDd about nine months after the injury was done, this action was commenced.

      Held, that this action was barred by the provision of the statute that “no action shall be maintained, under the provisions of this act, unless the same shall be brought within three months after the loss or injury.”
    That this action did not come within the provision of section 405 of the Code of Civil Procedure, as section 414 in the same chapter excepts from the provisions of that chapter ‘ ‘ a case where a different limitation is specially prescribed by law.”
    Appeal by the defendant from a judgment of tbe Supreme Court, in favor of tlie plaintiff, entered, upon the report of a referee, in the office of the clerk of the county of Rensselaer on the 10th day of July, 1888.
    The action was brought under chapter 428 of the Laws of 1855, entitled “ An act to provide for compensating parties whose property may be destroyed in consequence of mobs or riots.”
    The complaint averred that on the 19th day of July, 1886, the plaintiff was keeping the “ Grove Hotel” in the village of Lansingburgh; and on that day “ a mob or riot of men ” struck and intimidated her servants in charge and thereupon destroyed a large amount of her personal property in the house.
    The testimony was to the effect that on the day in question the plaintiff left her hotel in charge of two female servants; that in the afternoon three men known to the servants, and characterized by them in their testimony as “ roughs,” came into the hotel carrying clubs; they first inquired for the plaintiff, and said they came to kill her ; they were told she was not at home and were requested not to make any disturbance ; they then asked for lager beer, which was furnished them; they asked the two females to drink with them, which they did; they soon asked for and obtained another drink; drank six or seven times, the females drinking with them two or three times; they then began to dance and sing, and to assault the females, who in their fright ran out of the house; then the men broke and destroyed furniture, glassware, pictures and frames, and other articles to the plaintiff’s damage, as found by the referee, in the sum of $1,158.10. The plaintiff commenced a like action in the County Court for the same cause of action, within three months after the injury was done. That action was dismissed for want of jurisdiction. Afterwards, and about nine months after the injury was done, this action was commenced. The answer alleges that this action was not commenced within three months, and contains a general denial.

      F. L. Fursman, for the appellant.

      James Lansing, for the respondent.
   Landon, J.:

Chapter 428, Laws of 1855, under which this action is brought, provides for a recovery • when property “ shall be destroyed or injured in consequence of any mob or riot.” It also provides that no person sliall recover if it shall appear that such destruction or injury “ was occasioned, or in any manner aided, sanctioned or permitted by the carelessness or negligence of such person.”

The three persons who developed' into rioters did so in the plaintiff’s hotel, and after her servants (she being a licensed vendor) had freely supplied them with intoxicating drinks. Possibly they assembled there with evil intent; if they did, the liquor they received at the plaintiff’s bar presumably fortified that intent; if they assembled there for purely social enjoyment, the liquor presumably developed their destructive propensities. In either case the plaintiff, by her servants in charge, was, to some extent, blamable. The case of Paladino v. Board of Supervisors of Westchester County (41 Hun, 331), seems to us to have been correctly decided, and is decisive against the plaintiff’s recovery.

The suggestion is made that the plaintiff’s servants were induced to sell the rioters liquor through fear. The plaintiff retailed liquor for profit, and her servants accepted these persons as customers, and drank with them. The remark that they came to kill the plaintiff does not apj^ear to have excited alarm.

The plaintiff cites Ely v. Supervisors of Niagara County (36 N. Y., 297). There certain good people, becoming indignant over the disorderly, licentious and criminal conduct of people who made a bawdy-house their rendezvous, tore it down. , The court held that the bad reputation of the house, and the bad conduct of its frequenters, were not the proximate cause of its destruction. The good people were misdirected, not through the agency of' the proprietor of the hoúse ; he had nothing in common with them; his bad conduct, could only lawfully lead them to seek lawful redress, and in no sense could he be held to have invited lawless violence. The case would have more resemblance to this if the patrons of the house had, in their orgies, torn it down. He who fmmishes liquor to him whom the (Liquor infuriates is, in the cases mentioned in the civil damage act, liable for the consequences ; in the case at bar it is only necessary to hold that to him the county is not an indemnitor against the consequences.

Besides, we think, this action is barred by the fifth section of the act. It provides that no action shall be maintained under the jirovisions of this act, unless the same shall be brought within three months after the loss or injury.” This action was not brought within three months. An action was brought within three months in the County Court, but was dismissed because the court had no jurisdiction. The plaintiff contends that section 405 Code Civil Procedure, gives the plaintiff one year after the termination of the action in the County Court in which to bring this action. But the statute of 1855 fixes the limitation of three months. Section 405 of the Code of Civil Procedure is in chapter 4 thereof, entitled “ Limitation of the time of enforcing a civil remedy,” and sectioa 414 excepts from the provisions of the chapter “a case where n different limitation is specially prescribed by law.” (Hammond v. Shephard, 50 Hun, 322, 323.)

The judgment must be reversen, a new trial granted, costs to abide the event.

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

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


source: Caselaw Access Project

author: Landon, J.:

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. GEORGE BARNARD, Assignee of GEORGE CLARKE, v. EDWARD WEMPLE, Comptroller of the State of New York.

      Relevy of a tax by the comptroller ■ — - what irregulcm'ity in the assessment of the property cannot be thus cured• — chap. 453 «y1885 — the cancellation of a tax sale does not ca/nael the tax.

    Chapter 453 of the Laws of 1885, which authorizes the comptroller of the State of New York to relevy the correct amount of certain taxes which have been returned to him, and are illegal by reason of any irregularity or defect therein, or omission of statutory requirements, does not cover the case where the original assessment was invalid by reason of its having been made against a nonresident owner instead of against the resident occupants of the lands in question.
    Tlie cancellation of an invalid tax sale by the comptroller does not cancel the taxes, for the non-payment of which such sale was had. Such taxes remain as originally levied, and being unpaid it is the duty of the comptroller to carry them forward upon his hooks for future action.

      Certiorari to review the action, and determination of the comptroller in relevying certain taxes upon lands of George Clarke, the relator’s assignor, after the cancellation by the comptroller of the sale of such lands for non-payment of taxes. Also in “ carrying forward ” upon the comptroller’s books, to be made the basis for future sale, a portion of the taxes as to which the sale was made and canceled. The order under which such writ was issued was made at a Special Term of the Supreme Court held at Albany March 27, 1888.
    The facts are as follows: George Clarke, a resident of the county of Otsego, was the owner of several parcels of land in the town and village of Catskill, Greene county. The taxes thereon for the years 1877 to 1882, inclusive, were not paid and were returned to the comptroller for non-payment and were by him admitted and entered upon his books. In December, 1885, all of said lots were sold by the comptroller at the State tax sale for all of the unpaid taxes and were bought in by the State. George Clarke having made a general assignment for the benefit of creditors to the relator, the latter applied to the comptroller to cancel said sale because of certain irregularities. The comptroller upon examination did cancel it in December, 1887, as to all the lots. Some of the taxes were considered by the comptroller to be valid and some invalid, but there was no lot as to which there was not at least one invalid tax, and, therefore, the comptroller set aside the entire sale in pursuance of section 83, chapter 427, Laws of 1855. (1.) Certain of the lots were imperfectly described, and because of this error the comptroller charged back to the county of Greene the amount of the taxes upon them in pursuance of section 84 of the chapter cited. (2.) Certain of th¿ taxes upon some of the lots appeared to be regularly laid and valid, and the comptroller carried them forward in his books as valid taxes remaining unpaid. (3.) Certain other of the taxes were upon lots occupied by the tenants of George Clarke; these lots were not assessed to the occupants, but were assessed as non-resident land, except that in some cases the name George Clarke was placed at the head of the column in which the lots were described, and in other cases the name George Clarke was placed in said column preceding the description of each lot. (4.) In some cases the assessment was valid except that the oath of the assessors was defective in some years, and was wholly omitted in the year 1880. The comptroller with respect to the taxes in cases 3 and 4, acting under the assumed authority of chapter 453 Laws of 1885, relevied the same at the original amount and added thereto five per cent. To review his action in this respect this oerUorcvri was issued.

      J. B. Olney, for the relator.

      Z. S. Westbrook, for the comptroller.
   Landon, J.:

The comptroller made the relevy of taxes under chapter 453, Laws of 1885, the second section of which amends section 22 of chapter 427, Laws of 1855, entitled “ An act in relation to the collection of taxes on lands of non-residents, and to provide for the sale of such lands for unpaid taxes.”

Section 22, as thus amended, provides that: “ Whenever any unpaid tax, levied upon an assessment of land by a town or ward having a legal right to assess the same, which may have been returned to and admitted by the comptroller, shall be ascertained, either before or after sale thereof, to be illegal or void by reason of any irregularity or defect in, or omission of, statutory requirements for creating or collecting such tax, the comptroller is hereby empowered and directed, whenever deemed practicable by him, to relevy the correct amount of such tax, and add thereto the five per cent allowed by law to be added by the collector, which aggregate amount of tax and charge with interest thereon, at ten per cent per annum, from the first day of August following the admission of such illegal or void tax, shall thereupon be due and payable and shall be subject to existing provisions of law governing the collection of and sale for unpaid taxes by the comptroller; but no tax arising from a double assessment, the taxes levied on one of which shall be satisfactorily proven to the comptroller to have been duly paid, shall be subject to such relevy. Such relevy of any invalid or defective tax shall be conclusive evidence of its regularity and legality, and any such tax so levied shall be treated and subject to payment as though such sale had not been made, and if allowed to remain unpaid, the land shall be sold therefor.”

If the town by its assessors made a valid assessment of these lands, and the taxes thereafter levied thereupon are ascertained to be void because of some omission to observe the statutory requirements, subsequent to the assessment, then we have a valid assessment and an invalid tax. The tax being void it would be competent for the legislature by subsequent enactment to provide that a valid tax be laid upon this valid assessment, and it could direct it to be done by the comptroller instead of the local officers. If the original assessment was void, then any tax relevied thereupon by the comptroller would be void. This, for the reason that in making the assessment due process of law, as the statute provides it, must not be denied to the taxpayer. (Stuart v. Palmer, 74 N. Y., 183; Matter of McPherson, 104 id., 321; Remsen v. Wheeler, 105 id., 579.) The legislature may by retroactive enactment cure the omission of any act which it might have originally dispensed with. (Ensign v. Barse, 107 N. Y., 329; People v. Turner, 49 Hun, 466.) But, as the assessment is the 'basis upon which the State deprives a man of his property, an opportunity to redress his grievance in respect to it must be in some way bylaw accorded him, otherwise he would be deprived of his property without due process of law.

It follows, therefore, that, with respect to the taxes which were ascertained by the comptroller to be invalid because the assessor’s oath was defective or altogether omitted, but with respect to which no error is alleged until after the “ grievance days ” had elapsed, that the relevy by the comptroller was proper, and in that respect his determination is affirmed.

It appeal’s that several of the parcels of land were occupied by resident tenants of the non-resident owner. These parcels ought to have been assessed to the resident occupants, not as lands of the non-resident owner, nor as lands of a non-resident. (Hilton v. Fonda, 86 N. Y., 339 ; Stewart v. Crysler, 100 id., 378.) They were, in fact, assessed to George Clarke, the non-resident owner, as lands of a non-resident. That is, they were entered in the assessment-roll in a part thereof separate from other assessments; in the first column of which was entered the name of George Clarke, together with a designation or description of the lands; in the second column was entered the quantity, and in the third the value; thus following the statute with respect to the assessment of lands of non-residents, except that the name of the owner was added. The cases last cited are to the effect that this assessment was improperly made. If any act which was required by law to be performed by the assessors, and which is thereby made the condition of a valid assessment was omitted by them, it renders the assessment void. (Matter of McMahon v. Palmer, 102 N. Y., 116, 182.)

Referring to the statute of 1885 above quoted, we find that these unpaid taxes were levied upon an assessment of land by a town having a legal right to assess the land. That is, the assessors of the town of Catskill had jurisdiction to make an assessment upon these lands and the legal right to assess them at some valuation. We find that the taxes levied upon these assessments have been returned to and admitted by the comptroller, and that after the tax sale he ascertained the taxes were illegal and void by reason of an irregularity or defect in, or omission of statutory requirements for creating such taxes. The conditions which the statute enumerates seem to be present. But the assessors did not make and enter the assessment upon the assessment-roll in conformity with the statute. It is undoubtedly competent for the legislature to provide that such land should be assessed in the manner hére adopted by the assessors. But any method of assessment must provide for some sort of opportunity for the parties interested to be heard with respect to it, and no opportunity is accorded with respect to assessments made in the manner here attempted. The act of 1885 does not make or provide for making a reassessment.

The statute (1 R. S., m. p. 393, §§ 19, 20), provides that the assessors shall complete and copy the assessment-roll before the first of August, and then give notice of the time and place where the same may be seen and examined by any person interested until the third Tuesday of August, and that they will then meet at a specified time and place to review their assessment. Then and there any person conceiving himself aggrieved may be heard and his alleged grievance will be adjudicated upon, and if well founded, will presumably be redressed. He then and there has his day in court. Suppose the occupants of these lands had examined the copy of the assessment-roll before the third Tuesday of August, they would have found no assessment against them, and, therefore, would not have been interested further. If George Clarke, the non-resident owner, had examined it he would not have found any valid assessment against him or his lands, and, therefore, would not have been legally interested to complain. To validate the assessment by retroactive legislation would be to establish its amount against the lands without statutory notice to the persons interested in its amount. We think that cannot be done. The relevy upon the occupied lands assessed as lands of a non-resident, or of George Clarke, cannot be upheld.

As to the taxes which had been properly assessed and were carried forward by the comptroller in his books as taxes to be collected upon future tax sales, no valid objection exists. The cancellation of the invalid sale for their collection with other taxes does not cancel these taxes. They remain as originally levied, and since they are unpaid, the comptroller properly carried them forward upon his books for his future action. The determination and action of the comptroller is affirmed except as to the taxes relevied by him upon the assessments upon the occupied lands in the cases where such lands were not assessed to the occupants, and reversed as to such cases.

An order in accordance with these views, specifying the particulars affected, maybe presented for settlement. No costs to either party.

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

Order affirmed, except as to taxes relevied upon lands where lands were not assessed to occupant, and as to those reversed. No costs.


text:
    MARGARET McNALLY, Appellant, v. THE CITY OF COHOES, Respondent.

      Gity of Oohoes —notice to the city required, under chapter 183 of 1881, as essential to a recovery for injuries earned hy a defective street — constitutional law.

    The provision of chapter 183 of the Laws of 1881, that “the city of Cohoes shall not he liable for the damage or injury sustained by any person in consequence of any street, highway, bridge, culvert, sidewalk or cross-walk in said city being out of repair, unsafe, dangerous or obstructed hy snow, ice or otherwise, or in any way or manner, unless actual notice of the defective, unsafe, dangerous or obstructed condition of said street, highway, bridge, culvert, sidewalk or crosswalk shall have been given to the common council of said city, or the superin tendent of streets and public grounds of said city, at least twenty-four hours previous to such damages or injury,” requires, as a prerequisite to a recovery of damages for any injury mentioned therein, that proof be given of actual notice to the city of the condition of the place where the accident happened.
    Evidence which, under other circumstances, w.ould be sufficient to justify a court or jury in imputing notice of the defect to the city is not sufficient.
    Said statute is not unconstitutional, as depriving a party injured of her remedy against a party who has injured her, and not affording her any other remedy.
    The legislature has the power to impose upon a citizen, as a condition of liability upon the part of the city to him, that he, or some one of his fellow citizens, shall have given notice of the danger which exists, and which has caused the damage to him.
    Appeal by the plaintiff from a judgment of nonsuit, rendered upon a trial at the Albany Circuit before the court and a jury, and entered in the office of the clerk of that county on the 30th day of January, 1889.
    The action was brought to recover damages sustained by the plaintiff by falling on an icy sidewalk on February 1, 1885, on Factory street in the city of Cohoes. The plaintiff, in the opinion of the trial court, was entitled to go to the jury upon the testimony in the case, except that there was not sufficient evidence tending to show that “ the actual notice ” required by the statute of “ the defective, unsafe, dangerous or obstructed condition ” of the sidewalk had been given to the superintendent of the streets.

      Matthew Hale, for the'appellant.

      N. C. Moak, for the respondent.
   Landon, J.:

The statute under which the nonsuit was granted is as follows: “ The city of Cohoes shall not be liable for the damage or injury sustained by any person in consequence of any street, highway, bridge, culvert, sidewalk or cross-walk in said city being out of repair, unsafe, dangerous or obstructed by snow, ice or otherwise, or in any way or manner, unless actual notice of the defective, unsafe, dangerous or obstructed condition of said street, highway, bridge, culvert, sidewalk or cross-walk shall have been given to the common council of said city, or the superintendent of streets and public grounds of said city, at least twenty-four hours previous to such damage or injury.” (Laws 1881, chap. 183, p. 227, adding a new section to title 3, chap. 912, Laws 1869.) We assume that there was evidence sufficient to be submitted to the jury upon the question, whether the superintendent of the streets, by his own presence'at and observation of the place in question, at different times more than twenty-four hours previous to the injury, had ample opportunity to acquire actual notice of the condition of the sidewalk, and whether he did thus acquire it. No actual notice of the condition of the sidewalk was otherwise given him.

Previous to this statute constructive notice would have sufficed. Constructive notice signifies that the party to be affected might reasonably have acquired or obtained actual notice, and that if he had not it was his fault; and since he could not interpose his fault to protect himself, he was without protection against the charge of notice imputed by the circumstances. Constructive notice in case of defective streets is an inference of notice, drawn from official opportunity to obtain it and from official obligation to be reasonably vigilant in keeping the public streets safe for travel.

The many cases, somewhat similar to the one now before us, which have been before the courts, in which notice has been imputed to municipal corporations by juries, have not infrequently excited the suspicion that municipal corporations are too liable to be unjustly convicted of negligence, and that the doctrine of constructive notice affords too dangerous a temptation to juries to make such corporations the imdemnitors of the injured, under the unjust pretext that their negligence caused the injury. It is not improbable that such considerations, whether just or unjust, were in the mind of the framers of this statute. Its object is to exempt the city from liability unless it has actual notice as distinguished from constructive or possible or imputed notice, which may, in fact, be no real notice. It requires that such actual notice must be given, not imputed, not derived, or obtained, or acquired. Notice given implies a giver, some person who can state when and where and how it was given. The contention of the plaintiff, in effect, is, that the jury might find, upon all the circumstances, that the superintendent of the streets must or ought to have obtained actual notice, and that he must be presumed to have obtained what he ought to have obtained, and, therefore, did obtain it, and that actual notice obtained is equivalent to actual notice given, and thus the statute is satisfied. But thus the statute might be overthown. ¥e think we should uphold it.

The counsel for the plaintiff urges that the statute, if construed as announced by us, is unconstitutional, because it deprives the plaintiff of her remedy against the party who has injured her, and does not afford her any other remedy. Assuming her constitutional right to a remedy against the party who has negligently injured her, this statute does not take it away. Its object is to demand such certain proofs of the city’s liability as shall tend to the more certain administration of justice. Possibly the statute goes to an unwise extreme against the citizen and in favor of the city. Absolute remedial justice cannot be guaranteed; the legislature may make such rules to secure it as its wisdom approves, subject only to the restraints of the Constitution. Here there are difficulties on both sides. The citizen usually reposes upon official performance of duty, and is not awake to its neglect until 'he is injured. Perhaps the injury comes from such neglect, possibly from mere misfortune. His interest prompts him to charge neglect, and in his contest with the city justice may be imperiled by the sympathy of the jury with the citizen. The courts cannot say that it is wrong for the legislature to impose upon the citizen, as a condition of the liability of the city to him, that he, or some one of his fellows, shall give some notice of the danger which exists. It may be wise to enact that the government will protect the people if only some one of the people will give notice that protection is needed. The people are many compared with the few officials, and it may not be unreasonable that the people should be accorded the privilege to summon the officials to duty. ^

The judgment is affirmed, with costs.

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

Judgment affirmed, with costs.


author: Landon, J. : Learned, P . J.

text:
    MARTIN KRAMRATH, Respondent, v. THE CITY OF ALBANY, Appellant.

      City of Albany — power of a committee of its common council to create obligations binding the city.

    Tlie provision of tlie charter of the city of Albany (Laws of 1876, chap. 172, § 2,) to the effect that “it shall not be lawful for any member or members of the common council, whether a committee or otherwise, to make any disbursements of corporate moneys, or incur any expense in behalf of the city of Albany for repairs or supplies, orto audit accounts therefor, unless previously ordered by the common council,” does not forbid a committee, ordered by a resolution of the common council to “fit up a common council chamber in said building for the meetings of the board of aldermen,” to incur, without further direction or approval of the common council, obligations for carpets, oil-cloths, etc., used in fitting up such common council chamber; and such obligations so incurred by it are legally enforceable against the city, although no limitation has been imposed by the common council upon the' amount which the committee may expend in the execution of the work which it is contemplated by such resolution shall be done.
    Appeal by the defendant, the City of Albany, from a judgment of the Albany County Court, in favor of the plaintiff, entered in the clerk’s office of the county of Albany on the 3d day of September, 1881.
    The action was brought to recover for merchandise, consisting of carpets, oil-cloths, rugs, etc., furnished by the plaintiff to fit up rooms in the City Building for certain officers.
    On the 10th day of February, 1880, the City Hall, in the city of Albany, was destroyed by fire. The common council of the city on the 12th day of February 1880, duly adopted the following resolution: “ Resdl/oed, That,the name of the City Building be and the same hereby is changed to (City Hall and City Building; ’ that the committee on public buildings and parks be and is hereby authorized and directed to set apart and fit up rooms for the use of the city officers who have been left without any office room by reason of the destruction of the City Hall by fire; that said committee also fit up a common council chamber in said building for the meetings of the board of aldermen.” This resolution was, on the 13th day of February, 1880, duly approved by the then mayor of the defendant.

      The members of the committee on public buildings and parks, referred to in the aforesaid resolution, were: President Thomas Cavanaugh, Aldermen John T. Gorman, William Dey Ermand, William Manson and John Zimmerman.
    The city officers who had been left without any office room by reason of the destruction of the City Hall by fire were the chamberlain, board of health officers, receiver of taxes, mayor and city surveyor and engineer.
    The said committee on public buildings and parks set apart and ordered to be fitted up in the City Building rooms for the use of said officers. In the necessary fitting up of rooms in the City Building for the city officers who had been left without office room by reason of the destruction of the City Hall by fire, the plaintiff sold and delivered the said goods and performed labor to the amount of $242.98.
    The plaintiff duly verified his account and presented it for audit and payment, but the common council wholly rejected it and payment was refused.
    The goods were first ordered by the janitor of the City Building; the articles were selected by the officers for their various rooms, and before they were furnished Mr. Zimmerman, of the committee, informed the plaintiff that it was all right and that he should furnish the goods. Mr. Gorman, of the committee, told Mr. Zimmerman to order them. There was no formal meeting of the committee on public parks and buildings at which the order for the goods was authorized.
    No objection was made on the trial that the goods were not necessary and suitable and of the value claimed. In April following a new committee was appointed which reported against allowing the bill.

      D. C. Herrick, for the appellant.

      Edward J. Meegan, for the respondent.
   Landon, J. :

The common council directed its committee to “ fit up ” the rooms in question. Under the circumstances it was necessary and proper to fit them up; it was proper to employ a tradesman to do it; tlie plaintiff did it, and, so far as the case shows, did it well and rendered a reasonable bill. He received his order from a member of the committee. It does not appear that the committee at a regular meeting gave this member direction to give the order. It does appear that one other member requested him to give the order and it also appears that the committee acted informally in various like labors in placing the city officers in working quarters after the destruction of the City Hall by fire. Before this committee had an opportunity to pass upon the plaintiff’s bill an election occurred and a new committee was appointed, which rejected the bill.

Assuming that the committee had the authority which the resolution of the common council purported to confer, we do not think, under the circumstances and for the reasons pointed out by us in Clute v. Robison (38 Hun, 283), that the irregularity of its action can be urged to defeat the just claim of the plaintiff. (McCloskey v. The City of Albany, 7 Hun, 472; Nelson v. Mayor, 63 N. Y. 535.) Did the charter forbid the common council to confer authority upon the committee ? Section 2 of chapter 173, Laws of 1876, provides : “ It shall not be lawful for any member or members of the common council, whether a committee or otherwise, to make any disbursements of corporate moneys or incur any expense in behalf of the city (of Albany) for repairs or supplies, or to audit accounts therefor, unless previously ordered by the common council, except for the support of the alms-house, and for the support of the lamp and gas department.”

This means that no committee shall incur any expense for supplies unless authorized by the common council to do so, and the implication is, that if so ordered, then the committee can incur such expense. As the statute did not forbid’, the common council could authorize its committee to fit up the rooms. (Edwards v. City of Watertown, 24 Hun, 426.) The common council cannot delegate its governmental acts to a committee, but can its merely business acts, such as pertain to the care of and supplies for its buildings. The one requires the wisdom and judgment of the entire body, the other is the performance of service ministerial and administrative in its character. This distinction is pointed out in Birdsall v. Clark (73 N. Y., 73). The present case illustrates it. The City Hall was destroyed and the city officers had no offices. Should another building belonging to tbe city be appropriated as a city hall ? Tbis was a governmental act and it received, as it ought, tbe action of tbe entire common council. Should tbe rooms be fitted up ” for offices? Tbis was another governmental act, requiring tbe like action of tbe common council. Who should do tbe administrative labor of executing tbe order of tbe common council to fit up ” tbe rooms ? Clearly tbe whole body could not leave its chamber and go among tbe artisans and tradesmen. Its members are not the common council, except when duly assembled. It must ex necessitate rei delegate some body, and it is plain that it can delegate a committee either to buy tbe necessary carpets and chairs, etc., or to examine them and report for further directions. Here tbe language of its authorization was to fit up,” that is, to buy outright. We are clearly of tbe opinion that tbe committee was empowered to order these supplies from tbe plaintiff. If tbe authority bad been exceeded, a different question would arise.

Evidence was given tending to show that in other cases, somewhat similar, tbe common council bad audited and allowed tbe claims of other tradesmen. No barm was done by tbis evidence. Tbe plaintiff established bis claim independently of it; and since it is admitted that, if tbe defendant is liable, an action is tbe proper remedy, the plaintiff was entitled to judgment.

Judgment should be affirmed, with costs.

Ingalls, J., concurred.

Learned, P . J.

(dissenting):

I am of tbe opinion that tbe section of tbe statute restricting tbe power of the members of tbe common council and of committees cannot be so liberally construed. To wliat do tbe words “ unless previously ordered” refer? Not, I think, to the committee. Tbe statute does not mean simply that no member or committee shall make disbursements, etc., unless previously ordered so to do by tbe common council. It goes further and is intended to take from tbe common council tbe power to authorize a committee to make disbursements etc., at its discretion. Tbe words “ unless previously ordered ” refer to tbe “ disbursements ” and “ expense.” These must be ordered by the common council. I do not mean that tbe common council must themselves act in every trifling purchase. They may order disbursements of such a kind and of such an amount, and then the committee may carry out this order. In the present case the authority of the resolution was unlimited, except as to the building to be occupied. The committee was to “ set apart and fit uj) rooms.” No limitation was imposed as to expense or as to the quality of fittings. Whether expense should be $500 or $50,000 was left in the power of the committee.

The very evil at which the section is aimed is that of putting an unlimited power to make disbursements and create expense in the hands of a committee. If the resolution had ordered the committee to expend not to exceed a certain sum in the purchase of carpets for these rooms, it would, I think, have been proper. As it is, I cannot think it so.

Judgment affirmed, with costs.


text:
    FRANKLIN A. ROWE and Another, as Executors, etc. and ABRAM W. LANSING, as Residuary Legatee and Devisee Under the Will of WENDELL LANSING, Plaintiffs, v. HANNAH M. LANSING and MARY TUTTLE, Defendants.

      Legacy of an annual payment —payable from principal in default of sufficient income.

    A te,stator, having given to liis widow the use and income of a house and lot and farm during her natural life, by his will further provided: “Ialso direct my said executors to pay to my said wife, Hannah M. Lansing, annually, during her natural life, the sum of one hundred dollars; the said sum of one hundred dollars to be paid to my said wife, in each and every year after my decease, so long as she shall live.” The will further directed that the provisions of the will for the widow were to be in lieu of dower and other statutory claims. The residue of the testator’s estate, upon the death of his wife, was given over to other parties named in the will. The personal property was insufficient to pay the annuity of $100 a year, unless the same should be paid from principal. There was no change in the testator’s pecuniary circumstances between the date of the will and his death.

      Held, that, under such will, the legacy of the $100 payable annually to the widow did not abate, but in default of income that the principal should be applied in the payment thereof.

      Delaney v. Van Aulen (84 N. Y., 16) distinguished.

      Submission of a controversy without action upon an agreed statement of facts under section 1279 of the Code of Civil Procedure.
    The facts agreed upon were, that Wendell Lansing died May 15, 1887, at liis residence in Keeseville, Essex county, having previously made and published his last will and testament, whereby, after provision for debts and expenses and for a monument not to cost more than $700, he provided as follows:
    “ I give and devise to my wife Hannah M. Lansing, the use and income of the house and lot I now own and occupy situate on River street in the village of Keeseville, Essex county, N. Y., and also the use and income of my farm, known as the ‘ Brewer place,’ situate in Chesterfield in said county, to have and to hold the same to her during her natural life.” He then provided that upon and from the death of his said wife, her mother, Mary Tuttle, should have the use and income of the same house and lot and farm during her natural life. He authorized his executors, in their discretion, to sell the said farm and invest the proceeds, and pay the income from the proceeds to his widow during her life, and upon and from her death to her mother, Mary Tuttle, during her life. “ The provisions of this will ” for his widow were declared to be in lieu of dower and other statutory claims. He then gave legacies to his children aggregating $4,400, directing them to have preference and priority over any other gift or legacy. He then gave to his widow', Hannah M. Lansing, the use, during her natural life, of the farming implements, tools, team, cattle and stock on his said farm to an amount not to exceed $1,000. Then he made this provision: “Ninth. .I also direct my said executors to pay to my said wife, Hannah M. Lansing, annually, during her natural life, the sum of $100, the said sum of $100 to be paid to my said wife in each and every year after my decease so long as she shall live.” He then gave all the residue of his estate to his son, Abram W. Lansing, and appointed the plaintiffs his executors. All the legatees and devisees named in the will survived the testator.
    The will was duly admitted to probate, and the plaintiffs, as executors, entered upon their duties. Out of his personal estate, consisting of $6,250, they paid testator’s debts in full except a mortgage of $1,100 on said farm, and also paid the $4,400 legacies to his children and erected a monument at a cost of $275. They sold the said Chesterfield farm for $2,213, net proceeds, and invested that sum, sold the farming implements etc., for $705.80, net proceeds, and invested that sum and paid the widow $100, being one year’s annuity; then, on January 21, 1889, had their accounts judicially settled by the surrogate ; and thereupon it was determined that, over and above the two sums invested, namely, $2,243 and $705.80, there remained only twenty-nine dollars and eighty-three cents applicable to raise the annuity of $100 per year unless the sums should be paid from the principal sums invested as aforesaid, or by incumbering the house and lot in Keeseville, worth $600, occupied by the widow under the will. There was no change in the testator’s circumstances between the date of the will and his death. The $475 saved in the cost of the monument probably equaled all shrinkage. The question submitted to the court is whether the $100 directed by the ninth clause of the will to be paid the widow annually during her life shall abate or be paid out of the corpus of the estate invested, or out of the house and lot, or both.

      F. A. Rowe, for widow.

      R. L. Hand, for residuary legatee and devisee.
   Landon, J.:

I incline to the opinion that the testator intended that the payment to his widow of the $100 annually during her life should be made as directed out of his personal estate, the principal to be applied to that purpose if the income should fail. The testator did not say it should be paid out of the income; he pointed out no principal from which to raise it.. He suggested no contingency. He declared “ the provisions of this will to be in lieu of dower and other statutory claims of the widow.” All the provisions of the will in favor of his widow are made upon consideration of her electing to accept them in 2fiace of the provision made for her by law.

These provisions are the purchase-price or value which the testator put upon her legal claims. (Isenhart v. Brown, 1 Edw. Ch., 411; Cole v. Niles, 3 Hun, 326; Williamson v. Williamson, 6 Paige, 298 ; Flynn v. Croniken, 9 How., 214.) Such a legacy does not abate. (Id.) The payment of this annuity will be at the exjjense of the residuary estate. That is devised to his son Abram. There is no suggestion that it is to be preferred to the annuity; and if we compare this residuary devise and bequest with the pecuniary bequests to the testator’s five children, of whom Abram was one, we obtain a suggestion beyond what the terms “rest and residue” imply, that the residuary devise and bequest must abate to any extent necessary to protect the others. The testator says the pecuniary legacies to his five children “ shall be paid * * * in preference and priority to any other gift or legacy.” Thus it is seen the testator contemplated the possibility of some failure in his estimates, and, with that in mind, he guaranteed some of his legacies, then provided for his wife, and bestowed the possible residue.

The case of Delaney v. Van Auden (84 N. Y., 16) is cited in opposition to the views above expressed. In that case the annuitant was not the widow; the clear purpose of the will was that the annuity should be paid from rents and income; they were ample at first, but in “ the mutations of affairs ” they failed to be sufficient. There, as here, it was the question of the testator’s intention, and the court held that the will made no other provision to pay the annuity than from rents and income. The condition of the estate at the time of the testator’s death repelled the presumption that he had any intention otherwise to provide for it. In Pierrepont v. Edwards (25 N. Y., 128) the annuitant was the widow; her annuity was expressly charged upon the income, but that, failing payment, was directed out of the corpus of the estate.

Respecting the fund from which the annuity must be paid, it is plain, however, that it must be confined to the $705.80 realized from the sale of the farm implements. The testator devises and bequeaths, upon the death of Mrs. Lansing, the use and income of the house and lot and farm to her mother, Mrs. Tuttle, during her life. Tins is a clear intimation that the corpus of the house and lot must not be impaired to pay the annuity, and Mrs. Lansing must be understood to accept the provisions of the will with this restriction.

Judgment is directed in accordance, with these views, with costs to the parties out of the fund of personal estate.

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

Judgment directing annuity to be paid from the corpus of avails of personal property, not from real estate.


text:
    NELSON E. WHITNEY, Respondent, v. THE TOWN OF TICONDEROGA, Appellant.
    “ Defective highway,” within chapter 700 of 1881 — what obstruction left upon the road makes it “defective” — distinction in the ma/nner of construing allegations, when considered as constituting pa/rt of a pleading wnd when the pleading is read in evidence as am, admission.

    In an action, brought against a town to recover the damages sustained by the plaintiff by reason of a collision between the plaintiff’s carriage and a road scraper, which occurred while the plaintiff was driving through a public highway therein, it appeared that a road scraper belonging to the town had been left standing for the night in the roadway, near the side thereof.

      Held, that the foregoing facts established, within the meaning of chapter 700 of the Laws of 1881, the existence of a “defective highway,” rendering the town liable for the damages sustained.
    The allegations of the answer that neither the town nor road district owned or had provided any place for storing the road scraper, except within the lines of the highway, and that the said road scraper was placed, at the time in question, close to the west line of the highway, outside of the portion thereof traveled by teams, leaving ample room for teams to pass each other without danger from it, and that “defendant’s said commissioner of highways used due and proper diligence and care, in the placing and leaving of said scraper, to prevent accidents,” when pleaded in defense of an action, must, as a pleading, be considered as a whole, and the confession therein cannot be separated from the matter in avoidance, but when the pleading is read in evidence as the declaration of the party it takes its place as any other testimony to be considered by the jury in connection with the other proofs in the case, and the jury, is at liberty, upon the consideration of the whole case, to reach the conclusion that the confession of the party is true and the avoidance false.
    Appeal by the defendant from a judgment in favor of the plaintiff, rendered at the Essex Circuit, on a trial before the court and a jury, upon a verdict of the jury for $2,200, which judgment was entered in the office of the clerk of the county of Essex on the 14th day of December, 1888.
    The action was brought to recover for injuries sustained by the plaintiff “by reason of a defective highway.” The evidence tended to show that on May 4, 1888, after dark, the plaintiff while riding in a “ Frazer road cart,” and driving the horse attached to it, along Main street in the village of Ticonderoga, came in collision, in the dark, with a road scraper belonging to the defendant, which bad been left in tbe roadway near tbe sidewalk, and was thrown from his cart and seriously injured.

      Richard L. Hand, for the appellant.

      C. B. McLaughlin, for the respondent.
   Landon, J.:

The appeal is from the judgment. No appeal is taken from the order denying the motion made upon the minutes to set aside the verdict. We must in such case assume that, if the rulings of the court were correct, the evidence justified the verdict. The judgment, therefore, must be affirmed, unless the exceptions taken upon the trial disclose some ruling of the court to the prejudice of the defendant. At the close of the plaintiff’s ease the defendant moved for a new trial on the ground that “ there is no evidence of the existence of a defective highway in the town of Tieonderoga.” The evidence was to the effect that this highway was not defective otherwise than on account of this scraper. Tbe scraper bad been left standing for the night upon the roadway near the west sidewalk, unguarded and unlighted. The night was dark. The plaintiff did not see it. It was in the form of a four-wheeled wagon truck, with a scrapeiwlevice beneath the wagon frame, quite heavy, four feet two inches wide, seven feet two inches long, exclusive of the pole. It is obvious that it was a formidable and- dangerous obstacle for a horse and light vehicle to collide with in the dark. The statute, chapter 700, Laws 1881, imposes a liability upon towns for certain damages caused “ by reason of defective highways or bridges in such town, in cases in which the commissioner or commissioners of highways of said towns are now by law liable therefor.”

Refinement in discrimination may distinguish between a defect in the highway itself and an obstacle upon it; but why a liability should be imposed in one case and not in the other is not apparent. The legislature obviously meant by a defective highway one actually unsafe for public travel. A wooden awning over a sidewalk (Hume v. Mayor, 74 N. Y., 273); an advertising banner suspended over the street (Champlin v. Village of Penn Yan, 34 Hun, 33 ; 102 N. Y., 680); a pile of ashes in the street (Ring v. The City of Cohoes, 77 id., 83); a pile of stones upon the side of the roadway (Eggleston v. Columbia Turnpike Road, 18 Hun, 146; 82 N. Y., 281), have been held to be defects in the streets or highways. The .exception on this ground cannot be sustained.

Another ground urged for the nonsuit was that there is no evidence of negligence upon the part of the commissioner of highways. The defendant’s answer was read in evidence. It°denies everything in the complaint not admitted, and alleges the ownership of the scraper to be in the town or road district thereof in which Main street is situate; that neither the town nor road district had owned or provided any place for storing it; that the commissioner had no funds applicable to procuring a place, and there was no place to put it except within the lines of the highway, and that the scraper was placed at the time in question close upon the west line of the highway, outside the portion of the same traveled by teams, leaving ample room for teams to pass each other without danger from it; and that “ defendant’s said commissioner of highways used due and proper diligence and Care in the placing and leaving of said scraper to prevent accident.”

The defendant’s counsel urges that this answer must be taken as an entirety, and that the confession cannot be separated from the avoidance. This is true when regarded as a pleading. In such case every part of the pleading is adopted, nothing extrinsic is to be considered, and, therefore, nothing is presented to impair the full force of the result which the pleader sets forth. If the avoidance is ample as pleaded, there can be no confession in the pleading which can be separated from the ample avoidance. But when the pleading is read in evidence it is read as the declaration of the party, and takes its place as any other testimony to be considered by the jury in connection with the other testimony. The jury must determine the issues of fact upon a fair consideration of all the testimony. Their- convictions or inferences cannot be coerced by the court, and they may, upon all the evidence, reach the conclusion that the confession of the party is true and the avoidance false. (Mott v. Consumers' Ice Co., 78 N. Y., 543.) Within this rule there was evidence of the negligence of the defendant’s commissioner — evidence that he placed the scraper where it was left The declaration of the defendant that the commissioner used due diligence and care in so doing was only part of tbe whole testimony upon that issue, the circumstances were the other part; the jury could consider it all and adopt the inference deducible from the circumstances instead of that declared by the defendant.

The judgment should be affirmed, with costs.

Learned, P. J., and Injgalls, J., concurred.

Judgment affirmed, with costs.


text:
    THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. FRANKLIN V. BROWER, Appellant.

      Indictment for assisting in procuring a misca/rriage — conversation between the defendant and a physician, when privileged.

    Upon the trial of an indictment charging the defendant with aiding and assisting one Mary A. Brower in procuring a miscarriage, it appeared that the defendant, at the time of the alleged commission of the crime, called upon a person duly authorized to practice physic and surgery and employed him to attend Mary A. Brower. The physician was called on the trial as a witness for the prosecution and was allowed, against the objection and exception of the defendant, to testify that the following conversation took place on the night in question: The defendant said, “For God’s sake hurry up, my wife has a fit, or fainted or something; 1 don’t know what.” He said, “Probably you would like to know what the difficulty is before you leave the office?” I said, “Tes; it might be a help to me, because I might need something that I would not take with me.” He said, “This lady down to the house, I am living with, I am not married' to, but I expect to get a divorce from my other wife and get married. This lady is about three months gone in the family-way, and she introduced a catheter, with a wire, in her womb; and after she had introduced it far enough to hurt her I blew in it.” I said, “What did you blow in it for?” He said, “I done it before and it worked all right.”

      Held, that the communication to the physician was a confidential one, which, by the terms of the statute, he was forbidden to disclose and that its reception in evidence on the trial was error.
    Appeal by the defendant from a judgment of conviction of the crime of manslaughter in the first degree, rendered against him on a trial before the Court of Oyer and Terminer, held in the county of Rensselaer on the 26th day of November, 1888.

      The indictment was found tinder section 191 of tbe Penal Code, and charged the defendant with aiding and assisting one Mary A. Brower in performing, by means of an instrument, an operation upon her person with intent to procure a miscarriage, from the effects of which she died, such operation not being necessary to preserve her life.

      T. S. Eagan and J. K. Long, for the appellant.

      Lewis E. Griffith, district attorney, for the respondent.
   Landon, J.:

On the night of the 18th of June, 1888, the defendant called upon Dr. Crounse, a person duly authorized to practice physic and surgery, and employed him to attend Mary A. Brower, who was at the residence of her parents in Grant’s Hollow, Rensselaer county, about three-fourths of a mile from Dr. Crounse’s office. The defendant was urgent. The doctor testified that upon coming into his office the defendant said : “ For God’s sake hurry up, my wife has a fit, or fainted, or something; I don’t know what.” He said: “ Probably you would like to know what the difficulty is before you leave the office.” I said, “ Yes; it might be a help to me, because I might need something that I wouldn’t take with me.” He said: “ This lady down to the house, I am living with, I am not married to, but I expect to get a divorce from my other wife and get married. This lady is about three months gone in the family-way, and she introduced a catheter, with a wire, in her womb, and after she had introduced it far enough to hurt her, I blew in it.” I said, “ What did you blow in it for ? ” He said, “ I done it before and it worked all right.”

Dr. Crounse testified that, upon the defendant’s statement, he considered the case an emergency, that time was important; he had previously prescribed, as a physician, for the defendant, and for one of the children of Mrs. Brower; that on the present occasion he went immediately with the defendant to the house where Mrs. Brower was; he found her lying upon a bed, unconscious, and, as we judge from his testimony, in a dying condition, and she died in about half an hour. Two physicians, who made an autopsy, testified that, in* their opinion, the woman died from shock, caused by tlie injection of air into the uterus. Aside from the testimony of Dr. Orounse, there was no evidence tending to connect the defendant with any operation to procure a miscarriage. The testimony of Dr. Orounse, respecting the statement made to him by the defendant, was duly objected to by his counsel under section 834 of the Code of Civil Procedure. The objection was overruled by the court, obviously in deference to the case of Pierson v. The People (79 N. Y., 427).

Section 834, Code of Civil Procedure, is made applicable to criminal trials by section 392, Code of Criminal Procedure. Section 834 forbids the physician to disclose any information which he acquired in attending a patient in a professional capacity, and which was necessary to enable him to act in that capacity.” In civil cases the rule has been rigidly applied. The Pierson Oase was one of poisoning. The attending physician was permitted to testify to the symptoms and condition of the patient, as he found them from an examination openly .made in the presence of the patient’s wife and the prisoner, and as he also learned them from the patient, his wife and the prisoner. This testimony was admitted, as we understand the ruling, because although the facts presented brought the testimony within the letter of the act they did not bring it within the spirit. The court remarked, respecting the information acquired by the physician in attending his patient: “ There was nothing of a confidential nature in anything he learned or that was disclosed to him. The symptoms and condition were such as might be expected to be present in a case of arsenical poisoning.” Stress, also, was laid upon the fact that in no way was the confidence, feelings or character of the patient affected by the disclosure. The present case is widely different. The defendant employed the physician to try to save Mrs. Brower’s life. His alarm and anxiety were great. lie knew what had taken place, and suspected that it was the cause of her sudden prostration, and felt that the physician ought to know it, and to govern his treatment accordingly. The physician did want to know. In this critical moment, with the sole purpose of saving the woman’s life, he disclosed the secret to the physician to enable him to act rightly. To have withheld the disclosure would have made the defendant a consenting party to the woman’s death. We have no doubt that the statute, both in its letter and spirit, protects the confidence thus reposed in the physician and forbids him to betray it. With this testimony stricken ont there remains practically nothing to sustain the conviction.

The judgment of conviction and sentence must be reversed and a new trial granted.

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

Judgment and conviction reversed, new trial granted.


author: Learned, P. J. :

text:
    CROWN POINT IRON COMPANY, Respondent, v. ÆTNA INSURANCE COMPANY, Appellant.

      Insurance policy — cancellation of, what is essential to — conditions of delivery for cancellation.

    The owner of personal property, upon which a number of policies of insurance v had been issued, notified Page, the agent of one of the companies, that he desired to cancel the policies if the companies would return the pro rata premium for the unexpired term, and wrote a letter to such agent, inclosing the policy of liis company, together with other policies, stating: “I send you insurance policies on charcoal for cancellation. Our stock is nearly used up; we should he allowed for the unexpired term pro rata on amount paid.” The agent, Page, who received the policies, retained that of his own company, making no reply to the letter in which it was inclosed, and sent by mail to one Little, the agent of the other companies, the policies issued by them with a letter stating: “I inclose the following policies for cancellation as the stock of charcoal is used up. * * * Make the rebate as high as you can. * * * Please make out a bill stating the amount that you can allow on each policy for me to show to Mr. Reed, the agent of the Crown Point Company.” ,

    The property having been destroyed by fire on the same evening that the last-mentioned policies were sent to Little, the owner of the property requested Page, to whom he had sent them, to telegraph for their return, which Page did, knowing of the fact of the fire, and the policies were accordingly returned by Little to the insured. Page also, after entering the word “ canceled ” on his registry, opposite the entry of the iEtna policy, returned that policy to the insured. The agents, to whom these policies were respectively sent, had authority from their respective companies to cancel policies.

      Held, that the statements in the letters, in relation to the rebate, were not conditions attached to the surrender of the policies.
    That as the policies contained provisions authorizing the insured to terminate them, the company retaining short rates for the time the policies had been in force, that such. cancellation could be made by tlie assured without any assent thereto on the part of the companies.
    That such authority was also given to the assured by the provisions of section 8, chapter 110 of the Laws of 1880.
    That, upon a surrender of the policies with a request for their cancellation, the insured, if payment of the rebate was refused, would have a right of action for the premium paid, less the short rate for the time which had expired.

      Griffey v. New York Central Insurance Company (100 N. Y., 417) distinguished.
    That, upon the receipt by Page of the policy in his company, an effectual surrender thereof took place, and that the subsequent redelivery by Page after the Are, and with knowledge of the fire, did not make the policy valid again.
    Appeal by the defendant from a judgment in favor of the plaintiff, entered upon the report of a referee, in and by which he found that a policy of insurance issued by the defendant was in full force up to and at the time of a fire which took place on the 29th day of July, 1886, destroying the property insured; and that said policy had not been terminated upon surrender or canceled, and that the plaintiff was entitled to recover judgment upon the same.
    The action was brought to recover upon a policy of fire insurance. The sole question was whether, before the fire, the plaintiff, the insured, had, by its own voluntary and intentional act, surrendered up to defendant, and had thus canceled, the policy.
    This policy, with eleven other policies in other companies (five of which are involved in litigations similar to the present) was upon charcoal of the plaintiff. One Page, at Grown Point, was defendant’s agent. As such he had issued the policy in question. He had authority to accept policies of insurance for cancellation and to terminate insurance at the request of the insured, in accordance with the terms of their policies. Plaintiff’s policy contained this clause: “ This insurance may be terminated at any time at the request of the assured, in which case the company shall retain only the customary shorturates for the time the policy has been in force.”
    Mr. Inman was the general manager of plaintiff and of another company, and lived at Plattsburgh. Mr. Reed had for three or four years been assistant general manager and had charge of certain matters at Crown Point. Mr. Inman looked after the matter of insurance.
    Inman and Reed having previously visited the mines, had learned that the stock of charcoal, was greatly reduced. About tbe 25th or 26th of July, 1886, Reed informed Inman that they had more insurance than they had coal. Inman then told bim that if the companies would cancel them pro rata, he would cancel them all; if not, that they felt obligated to cancel some; Reed telling him that they had $12,000 to $15,000 insurance, and there was not half that amount of charcoal. According to the testimony of one witness, Inman directed Reed to return for cancellation all the policies on charcoal. The referee found that Inman directed Reed to cancel some of them.
    In pursuance of that direction, and under such authority as he possessed, Reed, on the twenty-eighth day of July, wrote a letter to Page. The letter was written on paper bearing the name of the pla.int.ifF and of its several officers, among them Reed himself as assistant general manager. The letter is as follows, omitting the caption just mentioned:
    “ CeowN PoiNT, July 28, 1886.
    “ Geoege Page, Agent:

      “ Dear Sib. — Herewith I send you insurance policies on charcoal for cancellation. Our stock is nearly nsed up. We should be allowed for the unexpired time pro rata on amount paid. The following are the policies. (Here - follow the names and amounts, etc., of the nine policies, including the HStna.) Please attend to it at once.
    “ Tours,
    “H. L. REED,
    “ Assistant General Manager.”
    Reed inclosed the policies in the envelope with the letter and sent the package to Page at Crown Point. Although Page was not the agent of the companies other than the .¿Etna, yet the policies had been received through him from Little, -the agent at Glens Falls of those companies, and Page had, as insurance broker and agent of plaintiff, procured the other eight policies.
    On returning these nine policies there still remained three policies on the charcoal, viz. : In the American Central Company, the Orient Company and the Star Company, to the total amount of $2,833.34 The total amount before returning the policies was $14,000.

      Page received the letter and the nine policies July twenty-ninth at 1.30 p. m. and took out and retained the ¿Etna policy, making at that time, so far as appears, no reply to the plaintiff. Page had authority from the ¿Etna to cancel policies.
    On the evening of July twenty-ninth at 10.30 the charcoal was destroyed by fire. The next morning, the thirtieth, between eight and nine o’clock, Reed called on Page, both of them having knowledge of the fire, to obtain a return of the policies. On the thirty-first day of July, Page returned the ¿Etna policy to Reed.
    On the next day, or the second thereafter, Page saw Reed at plaintiff’s office and requested him to return the ¿Etna policy. Reed did so. Page thereupon entered on his registry the word “ canceled ” opposite the entry of this policy and returned the policy to the defendant company with his next monthly report.
    On. the 2d of September, 1886, Page gave his check of twenty-four dollars to Reed for the annual premium, payable on return of the policy. Reed kept the check till October fifth, when he returned it to Page with a letter declining to accept it.
    These are the material facts as to the ¿Etna policy. The additional facts affecting the other five policies were that on receiving the nine policies Page wrote to Little a letter July twenty-ninth, as follows:
    “ Crown Point, N. Y., July 29, 1886.
    “ M. B: Little, Esq.:
    “ Dear Sir. — I inclose the following policies for cancellation as the stock of charcoal is used np. (Here follow the names and amounts of the eight policies.) Make the rebate as high as you can. * * * Please make out a bill stating the amount that you can allow on each policy, for me to show Mr. Reed as agent of the Crown Point Company.
    “Yours, etc.,
    “ GEORGE PAGE.”
    This letter, containing the eight policies, was mailed by Page to Little that afternoon.
    On the next morning, the thirtieth, between eight and nine o’clock, Page, having then been notified by Reed of the fire, at his request, telegraphed to Little to return all policies sent him the night before. It was Little’s impression that, about nine o’clock in the evening of the twenty-ninth, he went to the post-office at Glens Falls, opened his drawer there, saw the package sent by Page, opened it and saw the policies, replaced it in the drawer and went home. About nine o’clock on the morning of the thirtieth, he took the package from the post-office to his own office, read the letter of Page and laid it with other letters to be answered. About an hour or two after that he received Page’s telegram. lie then took the eight policies, inclosed them with the telegram (to save the trouble of writing a letter) and sent them by mail to Page, who received them July thirty-first, and delivered them with the .¿Etna policy to Reed. Little had authority to cancel policies of these companies. At the time when he received the telegram and sent the policies back to Page, Little had no knowledge of the fire. The 'other five policies have clauses relative to cancellation similar to that of the .¿Etna above-stated. The loss by fire on the charcoal proved to be over $4,600. After the fire Page notified the .¿Etna of the loss and in the proofs stated that the loss was $2,000. This action and the actions against five other companies whose policies were among the eight sent by Page to Little, as above-stated, were referred • to a referee, who reported in favor of the plaintiff. From his report the several defendants appealed.

      A. H. Sawyer, for the appellants.

      R. L. Hand and Waldo & McLaughlin, for the respondent.
   Learned, P. J. :

It is evident that the examination by Inman and Reed satisfied them that the plaintiff had more insurance than was needed on the charcoal, and made Inman decide to reduce it largely or to give it up all together. The total amount was $14,000, and there is some indication that about $3,000 was considered to be sufficient. Certainly, Inman testifies that they had to cancel some, and would cancel all if they could do so on a full pro rata return. We cannot see, then, why Reed’s act was not fully authorized, even without reference to such authority as he may have had to act himself. He did not return all the policies. There were twelve and he returned nine. Inman does not state that he gave any direction how many should be canceled. It must, therefore, have been left to Reed’s judgment, who, with Inman, had examined the amount of charcoal remaining. And there is nothing in Inman’s testimony which indicates that if a part only of the policies were to be canceled, this must be done on a full pro rata return. In saying this we do not mean to imply that Reed’s act would not have been binding on the plaintiff, even if he had returned all the policies in his letter to Page. He • had been held out to the world as assistant general manager. He had procured policies for the plaintiff. He had general charge of business in the absence of Inman. And though it may have been in the power of Inman to direct Reed as to what insurance to procure, yet the evidence shows that the business as to the insurance companies was done by Reed.

Taking, then, Reed’s acts as the acts of the plaintiff in this respect, we come to his letter to Page: I send you insurance policies on charcoal for cancellation. Our stock is nearly used up.” Here we have a direct request that the policies be canceled, with the reason therefor, viz., that the plaintiff had not as much property as the insurance. They, therefore, wished to save something of the premium which they had paid. This was, then, a request for something which would benefit plaintiff. The next sentence is not a condition of the surrender, but is an asking for good terms. “We should be allowed for the unexpired time pro rata on amount paid.” That is, the plaintiff thinks it should be allowed pro rata. It appears that on canceling policies there is sometimes allowed a “ short rate ” and sometimes a “ ratable proportion.” By the condition in defendant’s policy, when the insurance is terminated at the request of the insured the company retains short rates for the time the policy has been in force. When by the company, it refunds ratably. The meaning seems to be that if the insured terminates the policy he pays for the time he has been insured at the rate usual for that short time. The plaintiff desired to pay only pro rata. Still that was not made a condition of the surrender. That had been decided upon by plaintiff, and the decision had been acted upon by Reed sending the policies.

Aside from the condition in these policies, it is provided by section 3, chapter 110, Laws of 1880, that any insurance company shall, at the request of the insured, cancel any policy, “ and shall return to said party or bis representatives, as aforesaid, tbe amount of premium paid, less tbe customary short-rate premium for tbe expired time.” Therefore, on thus surrendering tbe policies with tbe request for cancellation, tbe plaintiff, if payment was refused, would bave a right of action for tbe premium paid, less tbe short rate for expired time. Tbe plaintiff hoped that the defendant would do better than this. But the surrender of tbe .Etna policy was complete. Nothing remained to be done by plaintiff. Tbe defendant owed the plaintiff tbe amount provided by statute and might voluntarily pay more. But whether tbe defendant paid that or not, tbe plaintiff bad done in respect to tbe .¿Etna Company all that was needed. It bad given up its policy to a person authorized to cancel and bad requested cancellation. Tbe policy was no longer in plaintiff’s possession. (Train v. Holland Purchase Ins. Co., 62 N. Y., 598.)

Tbe plaintiff urges that in order to effect a cancellation tbe insurance company must accept tbe policy, and perhaps must repay tbe premium. But this cannot be so. Tbe plaintiff bad paid tbe premium. In consideration of that payment tbe defendant had agreed to insure plaintiff for a certain time, Can it be that plaintiff could not, by some means or other, give up and surrender tbe benefit it bad thus paid for ? Suppose, after a person bad obtained bis ]3olicy, be should be satisfied that tbe company was insolvent, could be not give up or release this policy, so as to be able to procure one from a, solvent company ? Or could tbe company, byrefusing to accept bis surrender, prevent bis obtaining better insurance ? Certainly not. Whether tbe company, without some condition in tbe policy or some statute, would be obliged to return anything is a different question. Tbe plaintiff cites cases in which it has been held that, if an insurance company would cancel a policy, they must not only give notice but must return tbe premium or some proper part. (Griffey v. N. Y. Cent. Ins. Co., 100 N. Y., 417.) But tbe position of tbe company is very different. It had bound itself to do certain acts for tbe insured, and bad received tbe consideration. It could relieve itself from tbe liability only by actually refunding tbe amount provided for, and not by promising to do so. If it desired to take away something from tbe insured, it must perform tbe condition. But tbe insured may give up what be possesses, even if the insurance company never pays back what it owes him therefor. We think, then, that tbe plaintifE bad effectually surrendered tbe LEtna policy on its receipt by Page, wbo bad authority to cancel. Hence no subsequent redelivery by Page to Reed after tbe fire, and witb knowledge of tbe fire, could make tbe policy valid. Sucb a redelivery was a wrongful and fraudulent act towards tbe defendant. Tbey could bardly bave thought it would change tbe rights of tbe plaintiff and tbe defendant, unless by its canceling what bad been actually done. There was no liability of tbe defendant on tbe policy at tbe time of the fire, except to return tbe proper part of the premium; and there can be no recovery in this action against tbe HCtna Company.

Tbe facts as to tbe other companies are similar. Whether we regard Page as tbe agent of plaintiff to send tbe policies to Little, or as Little’s agent to receive them, does not seem to be very material. Tbey were on their way in regular course of transmission by plaintiff’s order. Tbe referee does not find whether tbey reached Little at nine o’clock in tbe evening of tbe twenty-ninth, or in tbe morning of tbe thirtieth. At any rate, between 9 and 10 a. m. of #the thirtieth, Little received, tbe package and read tbe letter and laid it aside to be answered. We think that tbe language of Page’s letter, requesting a high rebate, is not a condition of tbe surrender. Tbe surrender was absolute. Page, considered as plaintiff’s agent (tbe most favorable view for plaintiff), mailed, by plaintiff’s request, tbe package tbe afternoon of July twenty-ninth, and before tbe fire. By that act plaintiff parted witb control of tbe policies, and did so for tbe purpose of obtaining their cancellation. That act was plaintiff’s surrender of tbe policies, because it was tbe decisive act which put tbe policies intentionally out of plaintiff’s possession, and even though tbey did not reach Little until after tbe fire, tbe surrender bad taken effect before. (Atlantic Insurance Company v. Goodall, 35 N. H., 328.) Tbe plaintiff bad decided that it wished these policies canceled, and it at once did all it reasonably could to effect that result. It had tbe right to treat its acts as a surrender of the policies, and so bad tbe insurance companies. If this be so, then clearly tbe return of these policies by Little to Page could not give them vitality. A fraud was practiced upon Little, and on tbe companies through him, by asking tbe return of tbe policies and concealing tbe fact of tbe fire. Tbe property which tbey were intended to insure had already been destroyed, or partially destroyed. Even a new policy, issued in ignorance of that fact, would have been invalid, and in any case could have created no liability for such previous loss.

The judgment in favor of the plaintiff in the above-entitled action, and the similar judgments in the five other actions against other companies, are reversed, new trials granted, referee discharged, costs to abide event.

Landon and Ingalls, JJ., concurred

Judgment reversed, new trial granted, referee discharged, costs to abide event in each action.'


author: Learned, P. J.:

text:
    BRIDGET CORBETT, Respondent, v. THE CITY OF TROY, Appellant.

      City of Troy — streets, in use for five yea/rs, become public streets without any afp/rmative municipal action — accident from ice formed, fr'om water leaking from a hydrant — * notice to the city.

    The provision of the charter of the city of Troy that “all streets and avenues in said city which are now opened, or shall hereafter be opened to public use, and shall be used as such for five years continuously, shall be deemed and taken to be public streets and avenues,” does not contemplate any official action on the part of the city as being necessary to confer upon the streets and avenues, referred to therein, the character of public streets and avenues.
    In an action, brought to recover damages sustained by the plaintiff from falling upon an icy sidewalk in the city of Troy, it appeared that a hydrant upon one side of the street had been leaking during the winter, and that the water escap. ing therefrom worked its way across the street and caused ice to form upon the place at which the accident occurred.

      Held, that, although the evidence did not show that the ice had existed at the place of the accident for such a length of time as to create constructive notice to the city of its existence, yet the jury were justified in finding negligence on the part of the city, in that it had permitted an escape of the water from the hydrant upon the sidewalk, which would inevitably cause ice to form as soon as the weather became cold, and, in that view of the case, in finding a verdict in favor of the plaintiff.
    Appeal by the defendant from a judgment in favor of the plaintiff, rendered at the Rensselaer Circuit, after a trial before the court and a jury, at which, a verdict was rendered by the jury in favor of the plaintiff for $350 damages, which judgment was entered in the office of the clerk of the county of Rensselaer on the 1st day of October, 1888.
    The action was brought to recover damages for personal injuries sustained by the plaintiff, as alleged in the complaint, from a fall upon ice which had formed on the sidewalk on Tyler street, in the city of Troy, on the morning of February 22, 1886.

      R. A. Parmenter, for the appellant.

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

It appears by the case that it contains substantially the whole of the evidence. (Porter v. Smith, 101 N. Y., 531.) One person was excused by the court on its own motion from sitting as a juror, he having stated that his opinion was that all these suits against the city for slipping on icy sidewalks should be stopped once and forever.” The defendant excepted. The court proceeded by consent with ten jurors. If the court proceeded with ten jurors by consent,- this must have been a waiver by defendant of his objection to the exclusion of the juror above mentioned. He may have been the eleventh. And certainly a juror who had expressed that opinion in court was not indifferent between the parties.

The question to plaintiff as to the condition of her health is competent. One can know that he is in poor health without being a doctor. The statement by plaintiff’s sister that “ she looked to be sick ” was not improper. Several similiar answers seem to have been excluded or stricken out. In the case, after the plaintiff had offered in evidence the charter of Troy relating to the water department, it is said “ charter may be read by either party.” Subsequently comes an objection by the defendant to proving any of the statutes referring to the water-works. "We see nothing objectionable in reading any part of the charter, especially after the consent above quoted.

The charter of Troy provides: “ All streets and avenues in said city which are now opened, cr shall hereafter be opened to public use, and shall be xxsed as such for five years continuously, shall be deemed and taken to be public streets and avenues.” (Chap. 598, Laws of 1870, title 6, § 4; chap. 129, Laws of 1872, title 6, § 3.) Under the decisions in Strong v. Brooklyn (68 N. Y., 1); Requa v. Rochester (45 id., 129); Morse v. Troy (38 Hun, 301), we think the court was justified in submitting to the jury in the manner it did the questions whether the place in question was in a public street. The evidence of an engineer that he had laid out the streets, and the evidence of use, seem to bring the case within those decisions. The defendant urges that these words in that section of the charter, “ opened or to be opened,” apply only to some official action on the part of the city. We think that the decisions above cited show that such is not the true construction. It is suggested by the defendant that it is not right that a private citizen should thus compel the city to accept streets. But that is a consideration for the legislature.

The remaining question is that of negligence of the city in not removing the ice. The testimony is not very satisfactory. The accident happened Monday morning, February twenty-second, on the north side of Tyler street. Tyler street, as laid out by the city, ran from Hudson street west to the river. From Hudson street it had been continued eastward by the owner of the property, on a map made for him some twenty-five years before the accident. Some houses had been built upon it and on other connecting streets on the same map. One Gleason, whose house was on the south side of the street, about opposite .the place where plaintiff: fell, had a hydrant of his own on his lot by his house. It is claimed by plaintiff that the water therefrom ran across the street and froze on the south sidewalk (so-called) and formed a layer of ice. Some two inches of snow had fallen Sunday night and was on the ice. The plaintiff did not see the ice because it was covered with snow, and thus fell. The plaintiff’s family used to get water at this hydrant. The testimony is that the water burst out across the road and worked its way and struck the sidewalk. There is testimony also showing that this ice had existed for several weeks. The north side of the road was lower than the south, and the street descended steeply towards the west.

In opposition to this the defendant proves, by the record of one who had observed the weather and temperature, that on the thirteenth there was a heavy rain; that from that day to the sixteenth the thermometer was considerably above freezing; that the sixteenth and seventeenth was freezing weather, but not below nineteen degrees; the eighteenth and nineteenth were generally above freezing, and there was steady rain on the nineteenth; during the twentieth it grew cold and snowed on the twenty-first. Now, in order to make the city liable, there must be constructive notice. It seems impossible, with the heavy rain on the thirteenth producing even a freshet, and with the changeable weather afteiwards and a steady rain on the nineteenth, that the ice on which plaintiff fell could have been on the sidewalk prior to the twentieth. But, on the other hand, the hydrant is shown to have been leaking during the winter; and, therefore, although this ice may have existed but a few days, yet the jury might have been justified in finding negligence in the city in permitting an escape of water upon the sidewalk which would inevitably cause ice as soon as the weather became cold. This is not a case where the ice came from what are called natural causes, such as the freezing of rain or sleet. Here an escape of water was permitted through the winter. It might be harmless during warm winter weather, but it would certainly cause a dangerous place when the temperature should be below thirty-two degrees. There was constructive notice of the escape of this water and of its flowing on the sidewalk. And knowing that a cold night might make this a cause of peril, the city might justly be found guilty of negligence by the jury.

For these reasons we think the judgment and order should be affirmed, with costs.

Landon and Ingalls, JJ., concurred.-

Judgment and order affirmed, with costs.


text:
    HENRY M. CRIPPEN, Appellant, v. SARAH A. CRIPPEN, as Executrix, and JAMES FEENEY, as Executor of RILEY CRIPPEN, Deceased, Respondents.

      Promise to pay money out of property, to be received from a decedent s estate, in execution of the decedents wishes — burden of proving that the promisor received the property.

    In order to recover upon a promise to pay money, made by a person who, by descent, or devise or bequest, has, it is claimed, received from a decedent, property, out of which the decedent wished that the amount so promised should be paid, it must affirmatively appear that such person has received property from the decedent; and mere proof that the promise to pay has been made by him is not sufficient to justify a recovery.
    Appeal by tbe plaintiff from a judgment in favor of the defendants, entered upon an order setting aside the report of a referee allowing a elaim presented by the plaintiff against the estate of Riley Crippen, deceased, which had been referred, under the statute, to a referee to hear and determine.

      N. C. Moak, for the appellant.

      T. F. Hamilton, for the respondents.
   Learned, P. J.:

Riley Crippen died December 30, 1885, leaving a will which was duly proved, and defendants were appointed executrix and executor. The plaintiff, a son of deceased, presented a claim which was duly referred under the statute. The referee reported in favor of the claim. The defendants, on case and exceptions, moved to set the report aside. The motion was granted and plaintiff appeals. The claim is on an alleged oral promise made by Riley Crippen to his wife, Eanny, about July, 1853. The facts out of which the alleged promise arose are as follows: Ephraim "Wheeler died in 1840, and left surviving children, among them Fanny. There is some testimony that each daughter received about $4,000 from his estate. This is only given on recollection of witnesses, and a statement of Riley Crippen said to have been made about 1854. Eanny "Wheeler, in 1845, married Riley Crippen. She died in July, 1853. There is the testimony of two or three witnesses as to statements made by him at or before her death; being about thirty years ago. These statements are, in substance, that when she was ill and near death she proposed to make a will, and that he told her there was no need of a written will as everything could be carried out as she wished, and the wish was that he should have the use during his lifetime, and then this money, said to be $3,900, should go to her children. The plaintiff is one of the three children of Fanny. One other child is living, who is the plaintiff in another action, and the third child is dead, leaving children. The learned justice who decided the motion thought that the evidence was insufficient to show that Fanny Crippen had money which came from her father; that the money came to the hands of her husband, or that he made the alleged promise. He pointed out very justly that the only evidence consisted of testimony to verbal admissions made about thirty-three years before the death of the testator. And we think that his remarks are just. It is not shown what property was received from Ephraim Wheeler’s estate, nor what were the terms of his will, if, as defendant’s brief states, he left a will. If he died in 1840, then Fanny, so far as appears, became entitled to the property. When she married Riley Crippen, in 1845, her personal property became his. There is no evidence that it had not been reduced into possession or that he was holding it in trust for her. Therefore, when she died, in 1853, she had no personal property to dispose of. At least none is shown.

As was stated by this court in Bull v. Bull (31 Hun, 69), “the promise which has been enforced has been made by a person who, by descent or devise or bequest, has received from the decedent property out of which the proposed devise or legacy would have come; which proposed devise or legacy was prevented by the promise of the person thus held liable.” This is the principle which has controlled the case. (Matter of Will of O'Hara, 95 N. Y., 403.) Certainly a promise where the promisor owns the property, and the promisee does not, can create no legal obligation. It is the wrong done to the promisee by preventing him from doing what he would otherwise have done with his own property which makes this kind of promise binding.

To sustain this report of the referee, then, it must be shown that Riley Crippen, by virtue of the alleged promise, obtained from his wife’s estate, after her death, the title of this money, which would otherwise have been given by her to her children. Unless this be shown, then her will, if executed, would have been of no avail to them.

We agree with the learned justice that this has not been shown, and we think the order should be affirmed, with .costs.

The same disposition made of the case of Emily Wood against the same defendants.

Landon and Ingalls, JJ., concurred.

Order affirmed, with costs in each case.


text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. SAMUEL C. DOWNS, as Overseer of the Poor of the Town of Hartford, Complainant and Appellant, v. JOSEPH LINDSAY, Respondent.

      Appeal from an order of affiliation — will be dismissed if the bond does not comply with section 851 of the Code of Criminal Procedure.

    Where a bond, executed under the statute with a view to an appeal from an order of affiliation, does not conform to the provisions of section 851 of the Code of Criminal Procedure, it is inoperative, and the Court of Sessions should dismiss the appeal.
    Appeal by the People of the State of New York from the judgment or final determination of the Court of Sessions of Washington county, vacating and setting aside an order of affiliation made by two justices of the peace of the town of Hartford.

      J. Sanford Potter, for the appellant.

      M. H. O'Brien, for the respondent.
   Learned, P. J.:

The defendants move to dismiss this appeal on the ground that no such appeal lies from the order of the Court of Sessions. The contrary was decided in Tillotson et al v. Smith (12 N. Y., State Rep, 331) by the General Term of the fourth department; and we agree with that decision. An order of filiation was made by two justices November 17, 1887. The defendant desiring to appeal executed a bond; but the bond did not conform to the provisions of section 851, Code of Criminal Procedure. At the Court of Sessions the plaintiff moved to dismiss the appeal on the ground above mentioned. The motion was denied. When the case was called the plaintiff made the same objection and the motion was again denied. Thereupon the plaintiff declined to appear further; and, on motion of defendant, the order of filiation was set aside and annulled, with costs to defendant. Prom this the plaintiff brought the present appeal. The defendant does not deny that' the bond was not in accordance with the statute. (Sec. 851, sub. 2.) It is not conditioned to obey the order of the Court of Sessions; nor does it provide for supporting the mother. The bond, if made according to the statute, is an appeal. (Sec. 862, Code of Crim. Pro.) But if it does not comply with material provisions of the statute, then it cannot so operate. Whether it might be amended we need not inquire.

We think, therefore, that the Court of Sessions should have dismissed the appeal, and that the order of the Court .of Sessions, annulling the order of filiation and granting costs and disbursements to the defendant, must be reversed, with costs of this court, and that the appeal to said Court of Sessions mast be dismissed.

Landon and In&alls, JJ., concurred.

Order of Court of Sessions, annulling order of filiation and granting costs and disbursements, reversed, with costs of this court, and appeal to Court of Sessions dismissed.