text:
    The Broadway Savings Institution of the City of New York, Respondent, v. The Town of Pelham, of Westchester County, Appellant.

      Certificates of indebtedness issued by a municipality under chapter 193 of the Laws of 1877 — notice to a purchaser of statutory conditions — municipality estopped to deny certain facts — informalities in the fulfillment of a condition precedent.

    One who purchases certificates of indebtedness purporting to be issued by a town in accordance with the provisions of chapter 193 of the Laws of 1877, although he does so in good faith, must see to it that they are authorized by the statute under which they purport to have been issued.
    The facts which a municipal corporation issuing bonds is not permitted, as against a bona fide holder, to question, in the face of a recital in the bond of their existence, are those facts connected with or growing out of the discharge of the ordinary duties of such of its officers as are invested with authority to execute them, and which the statute conferring the power makes it their duty to ascertain and determine before the bonds are issued; but a municipal corporation is permitted to assert and prove against a bona fide holder of its bonds the fact that their issue was not authorized by any legislative authority.
    When an instrument refers on its face to a statutory power, every holder is made chargeable thereby with notice of the statute and its limitations. In such case a person dealing with the agent, knowing that he acts only by virtue of a . delegated power, must, at his peril, see that the paper on which he relies comes within the power under which the agent acts. And this applies to every person who takes the paper afterwards, for the protection which commercial usage throws around negotiable paper cannot be used to establish the authority by which it was originally issued.
    Whenever negotiable paper is found in the market, purporting to bind the government, it must necessarily be authenticated by the signature of an officer of the government, and the purchaser of such paper, whether the first holder or another, must, at his peril, see that the officer had authority to bind the government.
    Mere informalities or irregularities in the fulfillment of a condition precedent to a grant of power to an agent to issue bonds, or in the exercise of that power when granted, do not render the bonds of the principal, a municipal corporation, invalid in the hands of an innocent holder; but this rule is limited to instances in which the officer issuing the bonds is also permitted by the statute to determine whether a fact, made a condition precedent to the exercising of his power, exists. In such case his recital is a decision and binds the municipality.
    The authority of the town of Pelham to issue certificates of indebtedness under the provisions of chapter 193 of the Laws of 1877 depends upon a return having been made by the town collector of unpaid taxes to the supervisor, and a direction to the supervisor, from the board of town officers named in the statute, to borrow upon the credit of the town a sum not exceeding the amount of such unpaid taxes; these are conditions precedent to the power of the supervisor to act, and unless both conditions exist, the supervisor is without legal authority to borrow money upon the credit of the town and to issue its certificates of indebtedness; in case neither of such facts existed, certificates issued by the supervisor are void, and a recital in the certificates that such conditions existed does not bind the town, for the reason that neither the supervisor nor the town clerk was charged by the statute with the duty of determining such facts.
    Appeal by the defendant, The Town of Pelham, of Westchester county, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 12th day of April, 1894, upon the verdict of a jury rendered by direction of the court after a trial at the Westchester Circuit.
    This action was brought to recover the amount of eight certificates of indebtedness of the town of Pelham, purporting to have been issued in accordance with the provisions of chapter 193, Laws of 1877, entitled “ An act to amend chapter 610 of the Laws of 1874, entitled ‘ An act to authorize the sale of lands for the nonpayment of taxes and for the collection of unpaid taxes in the several towns of the county of Westchester.’ ” This statute required collectors of taxes of the towns of Westchester county, within ten days after the expiration of their warrants, to make and deliver to the supervisors of their respective towns a sworn statement of the amount of taxes remaining unpaid at the expiration of their warrants. Upon receiving from the collector such a statement, the supervisor was required, on or before the first day of May next after such return, and under the direction and authority of a board of town officers, consisting pf the supervisor, the justices of the peace and the town clerk, or a majority of them, to borrow, upon the credit of the town, a sum not exceeding the amount of the unpaid taxes so returned. For the sum so borrowed he was authorized to issue certificates of indebtedness of the town, signed by himself and ■countersigned by the town clerk. The town clerk was directed to keep a record of the certificates, and of their amounts and times of payment. Three of the certificates in suit bore date April 23, 1892, and were sold to the plaintiff on the twenty-eighth of the same month. The balance of them bore date of May 18, 1892, and were ■sold to the plaintiff on that day. Each certificate recited that it was issued in accordance with the provisions of the statute above referred to, and was signed by the supervisor of the town, and purported to have been countersigned by the town clerk. The answer of the town denied the allegation of the complaint in reference to the execution of said certificates and their delivery to the plaintiff, and alleged that no authority for issuing them was ever given by the proper town authorities as required by the statute; that the amount was largely in excess of the unpaid taxes for the year for which they purported to have been issued, and that certificates for the correct amount had theretofore been issued by defendant and sold and paid, and that the signatures upon the certificates purporting to be that of the town clerk were forgeries.
    Upon the trial the court excluded all testimony offered to prove the allegations of the answer, and directed a verdict for the plaintiff for the full amount claimed.

      From the judgment entered upon the verdict this appeal was taken.

      Martin J. Keogh, for the appellant.

      William K. Robertson, for the respondent.
   Brown, P. J.:

In excluding the testimony offered by the appellant, the court decided that the facts pleaded in the answer were immaterial, to the controversy between the parties, and, if proved, would not have constituted a defense to the action. In substance, it held that the town was bound by the recital in the certificates issued by the supervisor, and by his representations as to the genuineness of the signature of the town clerk. We may, therefore, examine the case upon the assumption that, if the evidence offered by the appellant had been admitted, the jury would have determined the facts to be as set forth in the answer; and, for the purposes of this appeal, we shall presume that the several certificates sued upon were issued without authority or direction of the board of town officers named in the statute; that the signature of the town clerk thereto was forged; that the aggregate amount of the certificates sold to plaintiff was largely in excess of the unpaid taxes for the year 1891, and that for the actual amount of unpaid taxes for that year, genuine certificates had been issued and sold by the town. The proposition that the recitals in the certificates were conclusive upon the appellant as to the facts therein stated cannot be sustained under the decisions of this State. So much has been written in the judicial opinions on this subject that it is unnecessary to do more than to cite the authorities ; and, in our own State, it is settled that one who purchases instruments of the character of those in suit, although he does so in good faith, must see to it that they are authorized by the statute under which they purport to have been issued. (Starin v. Town of Genoa, 23 N. Y. 439; People ex rel. Fiedler v. Mead, 36 id. 221; Town of Venice v. Woodruff, 62 id. 463 ; Cagwin v. Town of Hancock, 81 id. 532; Craig v. Town of Andes, 93 id. 105.)

The facts are also insufficient to bring the case within the rule applied by the Supreme Court of the United States in the cases cited by the plaintiff. (Commissioners of Knox County v. Aspinwall, 21 How. [U. S.] 541; Town of Coloma v. Eaves, 92 U. S. 484; Northern Bank v. Porter Township, 110 id. 608.)

In those cases it was decided that the facts which a municipal corporation issuing bonds was not permitted against a tona fide holder to question, in face of a recital in the bond of their existence, were those connected with or growing out of the discharge of the ordinary duties of such of its officers as were invested with authority to execute them, and which the statute conferring the power made it their duty to ascertain and determine before the bonds were issued. (Northern Bank v. Porter Township, supra, 617.)

In Anthony v. County of Jasper (101 U. S. 693) it was said : Dealers in municipal bonds are charged with notice of the laws of the State granting power to make the bonds they find on the market. This we have always held. If the power exists in the municipality, the tona fide holder is protected against mere irregularities in the manner of its execution, but if there is a want of power no legal liability can be created.”

I know of no authority in that court to the effect that a municipal corporation is not permitted to assert and prove against a tona fide holder of its bonds the fact that they were not authorized by any legislative authority.

In Northern Bank v. Porter Township (supra) the authority of the township to make a subscription to a railroad was, by the statute, made dependent upon the fact that county commissioners had not been authorized to make a subscription. The bonds in suit recited that they had been issued in pursuance of the provisions of the several acts of the General Assembly of the State of Ohio, and of a vote of the qualified electors in said township,” and it was contended by the plaintiff that the town was estopped by that recital from asserting as a defense the fact that the condition upon which the authority of the town to make the bonds depended'did not exist. This contention was overruled and the bonds were declared invalid, the court saying, the question of legislative authority in a municipal corporation to issue bonds in aid of a railroad company cannot be concluded by mere recitals.”

"When an instrument refers on its face to a statutory power, every holder is made chargeable thereby with notice of the statute and its limitations. The rule of law governing cases of -this character is very clearly stated in the ca.se of Floyd?s Acceptances (7 Wall. 676) as follows: In each case a person dealing with tbe agent, knowing that he acts only by virtue of a delegated power, must, at his peril, see that the paper on which he relies comes within the power under which the agent acts. And this applies to every person who takes the paper afterwards, for it is to be kept in mind that the protection which commercial usage throws around negotiable paper cannot be used to establish the authority by which it was originally issued. * * * Whenever negotiable paper is found in thq market, purporting to bind the government, it must necessarily be by the signature of an officer of the government; and the purchaser of such paper, whether the first holder or. another, must, at his peril, see that the officer had authority to bind the government.”

In numerous cases the Supreme Court of the United States has held that mere informalities or irregularities in fulfillment of a condition precedent to a grant of power to an agent, or in the exercise of that power, when granted, would not render the bonds invalid in the hands of an innocent holder; but no ease has gone to the extent of upholding the bonds when there was a total want of power in the agent who issued them. The rule applied by that court is limited to instances in which the officer issuing the bonds is also permitted by the statute to determine whether a fact, made a condition precedent to the exercising of his power, exists. In such a case his recital is a decision and binds the municipality.

Authority to issue the certificates in suit depended (1) upon a return by the town collector of unpaid taxes to the supervisor; (2) a direction to the supervisor from the board of town officers named in the statute to borrow upon the credit of the town a sum not exceeding the amount of unpaid taxes.

These were conditions precedent to the power of the supervisor to act, and unless both existed the supervisor was without legal authority to borrow money upon the credit of the town and to issue its certificates of indebtedness. Neither fact existed in this case, and, consequently, the certificates were void.

The recital in the certificates that these conditions existed could not bind the town under the rule applied in the Supreme Court of the United States, for the reason that neither the supervisor nor town clerk was charged by the statute with the duty of determining those facts. If the condition did not exist, then the power granted by 'the statute did not become operative, and it could not be said that there was legislative authority for the borrowing of the money.

On this precise point the distinction exists between the case at bar and Gifford v. Town of White Plains (25 Hun, 606), upon which plaintiff relies. In Gifford’s case the condition required by the statute existed. There was a return by the collector and a direction by the town board to the supervisor to borrow the money. But the amount named in the resolution of the town board was subject to reduction by the supervisor to the extent of the amount of money in his hands applicable to the payment of the unpaid taxes. What that amount was no one knew but the supervisor, and he necessarily by the resolution of the town board was made the person to determine it. Issuing a certificate in proper form was held to be equivalent to a declaration by the supervisor that he had not exceeded his authority. It was a decision which bound the town, and so long, therefore, as the total amount of the certificate did not exceed the amount authorized by the town board, or the amount stated in the collector’s return, a bona, fide purchaser of the certificate was protected. And the plain distinction between the two cases is, that in that case there was legislative authority and in the case before us there is none.

The statute further made it the duty of the town clerk to keep a record of the certificates and the amount and time of their payment. This record was open to inspection, and an examination of it would have disclosed to the plaintiff the fact not only that the particular certificates in suit were unauthorized, but also that the power of the town officer had been exhausted by borrowing the actual amount of the unpaid taxes upon other genuine certificates. We think the plaintiff is chargeable with notice of this provision of the statute, and its failure to make an examination of the record deprives it of the standing of an innocent holder of the securities. (Thompson v. Town of Mamakating, 37 Hun, 400; 106 N. Y. 674.)

In respect to the amount of the certificates, no distinction can be drawn between the case at bar and that last cited. In that case it appeared that the town was authorized by statute to issue bonds to the amount of $1Y5,000. The bond sued upon was in excess of that amount and had been issued by mistake. Although the plaintiff was a purchaser for value without notice of the defect, the right to recover was denied upon the ground that he was chargeable with notice of the limitation put by the statute upon the power of the town commissioners, and was bound to ascertain, at his peril, that all the conditions requisite to the execution of their power had been observed and performed. In this case if it had appeared, as defendant offered to show, that the total amount of unpaid taxes for the year 1891 was less than $3,000, the plaintiff, under the authority of the case cited, was chargeable with notice that the certificates amounting to $4,600, purchased on the eighteenth of May, were unauthorized by statute, and were for that reason void.

We are of the opinion that the evidence offered by the appellant to sustain the allegation of the answer was admissible, and if the facts therein alleged, and which we have assumed in this opinion to be true, had fieen established, the conclusion would necessarily have followed that the certificates were void. The conclusion we have reached renders it unnecessary to consider the question as to the forgery of the town clerk’s signature. If the condition did not exist under which the Legislature had alone authorized the town to borrow' money and issue certificates, the genuine signature of the town clerk, if signed to them, could not give to them validity.

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

CulleN, J., concurred ; DyxmaN, J., not sitting.

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


source: Caselaw Access Project

author: Beoavu, P. J.:

license: Public Domain

text:
    John W. Brown, Appellant, v. Jonas Fishel, Respondent, Impleaded with Others.
    . Intention of the parties to a conveyance, determined by the jury —judgment not reversed on the facts, unless the case contains all the evidence.

    It is for the jury, upon the trial of an action in which the question as to the boundary line of a-lot of land is in dispute, to determine whether the parties to a deed, in which the premises conveyed were described as bounded by the line of a street, intended to refer to the visible and apparent line of the street, or to the line of the laid out and recorded highway.

      A judgment will not be reversed upon tire facts by the General Term of the Supreme Court, if there is no certificate in the case that it contains all the evidence.
    Appeal by tbe plaintiff, Jobn ~W. Brown, from a judgment of tbe Supreme Court in favor of the defendants, entered in tbe office of tbe clerk of tbe county of Suffolk on tbe 1st day of November, 1892, upon the verdict of a jury rendered after a trial at the Suffolk Circuit dismissing tbe plaintiff’s complaint upon tbe merits, and also from an order made at tbe Suffolk Circuit on tbe 28th day of October, 1892, denying the plaintiff’s motion for a new trial made upon tbe minutes.

      H. H. Benjamvn, for tbe appellant.

      George F. Staolopole and Wibnot M. Smith, for tbe respondent.
   Beoavu, P. J.:

This action was brought to recover possession of a small plot of ground in tbe village of Biverhead, Suffolk county. Tbe plaintiff, concededly, has title to a lot upon tbe north side of Main street and extending north seventy-five feet from tbe north line of that street.

.' The defendant Fishel has title to a lot immediately north of plaintiff’s land and bounded on tbe south by tbe plaintiff’s north line.

The question in dispute is the proper location of tbe north line of plaintiff’s lot.

Both parties derive title from John Benjamin. In'1857 Benjamin conveyed to bis daughter, Frances Maria Brown, a lot of land seventy-five feet deep and bounded “ on the south by the Main street, seventy-four and one-half feet.”

The plaintiff is a son of Frances Maria Brown, and makes his title under the aforesaid conveyance.

In 1886 Benjamin conveyed to the defendant Fishel a parcel of 'land in the rear of tbe lot conveyed to his daughter, and being of the same width of said lot north and south, and bounded on the south by “ land of the heirs of Frances Brown, deceased.”

Main street was first laid out in 1748, and in 1814 it was resurveyed by the commissioners of highways of the town and re corded as a highway.

At tbe date of tbe deed to Firs. Brown, as I understand tbe evidence, there was no fence in front of tbe property conveyed to ber, but tliere was in front of the property adjoining upon tbe east, and which was owned by tbe Congregational Church, and east of that tbe property was fenced along tbe street. There was also a fence in front of the Jagger property on tbe west, and west of that property tbe land along tbe street was fenced, or buildings were erected right up to tbe line which would be a continuation of the fence line. This condition of tbe street bad existed for a period that was beyond tbe memory of any living witness, At tbe date of tbe deed to Mrs. Brown, therefore, tbe street was open and used, and was the principal thoroughfare of tbe village. Its apparent north line was well marked and was an actual visible monument, and tbe plaintiff’s claim was that tbe fence line was tbe north line of the street, and that the north line of bis lot was to be ascertained by measuring seventy-five feet north from tbe fence line.

In further support of this view the plaintiff’s father testified that in 1859 he was present with Benjamin and assisted in taking a measurement of the lot conveyed to his wife, made with reference to the erection of a building thereon. That they started on the north side of Main street, at the fence in front of the Congregational Church, and ran north seventy-five feet, then squared the corner and ran south.

After that measurement.was made Benjamin erected a building on the lot for his daughter, and the front of it was about ten or twelve feet from the fence line.

The defendant Fishel produced the records of the street as laid out and recorded by the commissioners of highways.

The north line ran from a stone buried in the ground near the old court house, upon á designated course in an easterly direction, to a stone in the ground near what is now the southeast corner of the Methodist Church.

Mr. Howell and Mr. Post, who were civil engineers and surveyors, testified to ascertaining and surveying that line. They claimed to have located the stones at the ends of the recorded line of the street by digging and removing the dirt. The line of the street, as ascertained and located by them, was about ten or twelve feet south of the apparent or fence line of the street. There would appear to be very little doubt but that the stone monument near the court house was properly located by the surveyors, but there was some doubt about the monument near the Methodist Church, and the course run by the surveyors between those two points did not correspond to the course given in the record of the street. The explanation for this discrepancy was the variation in the compass since 1814 and local attraction of the needle, the cause of which was unknown. There was other evidence upon the part of the defendant Fishel tending to show that the real line of the street, as laid out and recorded, was south of the fence line, and his claim was that the north line of the street as laid out was the southern boundary of the plaintiff’s lot, and its depth was to be ascertained by running north from that line. Between the line run by the surveyors and the fence line was the sidewalk, which was about six feet wide, then a row of trees, and then a part of the traveled roadbed,, and the distance between these lines represents the width of the lot in dispute, measured from north to south.

Upon this evidence we are of the opinion that the case was for the jury. The court properly refused to direct a verdict. It could not determine, as a question of law, either the line of the street or the intention of Benjamin and his daughter in making the street the southern boundary of the lot. These were questions of fact solely.

We are of the opinion, however, that the real question to be submitted to the jury to determine was what was the intention of Benjamin and his daughter in making the street the southern boundary of the property. Did they refer to the line which was visible and apparent, or did they refer to the line of the laid out and recorded highway % Upon the evidence there was much that could be said in the way of argumennt upon both sides of this question.

But it nowhere appears that either Benjamin or his daughter had any knowledge or had ever heard that the lines of the street as actually used did not correspond to those of the recorded highway; and as grants of land are presumed to be made and boundaries fixed after a view of the premises, we are of the opinion that the weight of evidence in the record before us was decidedly upon the side of the plaintiff’s contention.

The intention to convey a lot of land, seventy-five feet deep, is clear, and it is difficult to believe that any part of the lot was understood to be within the open visible street. The line of the street had been fixed so long, and the public use of the land as a street up to the fence line had been so open and notorious, that there was strong ground for the claim that, if not within the recorded line of the street, it had been dedicated to public use by the owners, and, if that was the fact, there could be little doubt that in making the' street the southerly boundary of the lot in question, the reference was to the street as actually used and not to the mathematical line of the recorded highway.

The question of the intention of the parties to the deed in making the street the boundary of the property was not submitted to the jury by the court, and there was no request to submit it. The jury were instructed to determine as a fact where the line of the highway was, and if they found that it was as fixed by the surveyors, then to render a verdict for the defendant.

We are precluded from reversing the judgment upon the facts, for the reason that there is no certificate in the case that it contains all the evidence, and we are compelled to affirm the judgment.

But, as the ease is one in which the statute provides that a new trial may be had at the plaintiffs election, we have endeavored to point out what we consider to be the questions upon which the controversy turns, so that if there should be another trial it might be submitted to the jury.

The judgment must be affirmed.

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

Judgment and order affirmed, with costs.


author: Brown, P. J.:

text:
    Daniel E. Christie, Respondent, v. Robert Bowne, Appellant.

      Certificate of full paid-stock— the repeal by chapter 687 of 1892 of section 37 of chap-tee' 611 of 1875 did, not affect existing emeses of action.

    Section 37 oí chapter 611 of the Laws of 1875 required the certificate of the full payment of the capital stock of a corporation to he recorded in the office of the Secretary of State and in the office of the county clerk of the county in which the principal business office of the corporation is situated.

      The repeal of chapter 611 of the Laws of 1875 hy chapter 687 of the Laws of 1892 did not affect a cause of action existing under the former statute, upon which proceedings were commenced on May 19, 1892, such cause of action having been preserved by the saving clause of the Repealing Act.
    Appeal by the defendant, Robert Bowne, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 17th day of October, 1893, upon the verdict of a jury, rendered after a trial at the Kings County Circuit, and also from an order made on the 10th day of October, 1893, and entered in said clerk’s office, denying the defendant’s motion for a new trial made upon the minutes.
    The summons in this action was served upon the defendant on May 19, 1892.

      Ohcvrles Strauss, for the appellant.

      Herwy L. Brant, for the respondent.
   Brown, P. J.:

The plaintiff brought this action as a creditor of the corporation known as the New York Advertising Agency, Limited,” to recover his debt from the defendant, who was a stockholder in said corporation, on the ground of the failure to file in the office of the county clerk the certificate of the full payment of the capital stock of said corporation as required by section 37, chapter 611, Laws of 1875, under, which statute the corporation was organized.

The question discussed by the appellant requires only a brief notice. No exception presents the question as to the proper construction of the peculiar language of section 37.

That section requires the certificate to be recorded in the office of the Secretary of State and of the county in which the principal business office of such corporation is situated.”

It was decided by a very recent decision of this General Term that the language quoted required the certificate to be filed with the county clerk. (Jones v. Mail & Express Pub. Co., 30 N. Y. Supp. 335 ; 80 Hun, 368.)

The repeal of the act of 1875 by chapter 687, Laws of 1892, does not affect the plaintiff’s cause of action. It was preserved by the saving clause of the repealing act (§ 35).

The exception to the admission of the testimony of Mr. Seaver, that the plaintiff was a competent bookkeeper, is not available on this appeal.

The question of plaintiff’s competency was not an issue at the trial. It was withdrawn from the consideration of the jury by the court in its charge without objection by the defendant, and no request was made to have that question submitted to the jury.

The verdict is sustained by the evidence, and the judgment and order are affirmed, with costs.

Dykman and Cullen, JJ., concurred.

Judgment and order affirmed, with costs.


text:
    Patrick J. Flannery, Respondent, v. Aslan Sahagian, Appellant.

      Building contract — what defects disregarded — what defeats not disregarded.

    Inadvertent and unimportant omissions or defects in the execution hy the contractor of a building contract, such as may be remedied hy slight expenditures, may he disregarded; hut a party is not to he denied, hy the application of such rule, the right to have his building erected in the manner agreed upon, and if the work omitted hy the contractor cannot he done, at the time of the bringing of an action hy the contractor to recover the contract price for the erection of the building, except at great cost and with great risk to the building, he will not he permitted to recover.
    Appeal by the defendant, Aslan Sahagian, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 1th day of July, 1894, upon the report of a referee.

      Joseph F. Dal/y, for the appellant.

      F. AT. Donoghue, for the respondent.
   Brown, P. J.:

This action was brought to recover a balance due upon a building contract and for extra work. Under the findings of the learned referee there was not a substantial performance of the contract. There was a failure to comply with the specifications in very material matters, and the referee found the omitted work could not now be done “ except at great cost and with great risk to the building.”

It is only inadvertent and unimportant omissions or defects, and such as may be remedied by slight expenditures, that may be disregarded in a building contract. In this case the building has not been and cannot be completed as the plaintiff agreed to build it.

In Oberlies v. Bullinger (132 N. Y. 598) there was an error in the construction by which the ridge of the roof was five in ches lower than called for by the plans. This error did not affect the appearance or utility of the building, and as it appeared in the proof that all other defects were remedied by the contractor, it was held that there was a substantial performance of the contract. But in this case there is not only a failure to make the ceiling of the north store of the height required by the contract, but the cellar ceilings are in some places nearly two feet lower than the specifications require,stone foundations and stone bottoms were omitted under the party walls, and in many other respects the contract was not complied with.

In Crouch v. Gutmann (134 N. Y. 45) it-was thought the rule of substantial performance was extended to its full limit. The majority of the court in that case felt bound by the findings of fact, but it was said in the prevailing opinion that “ the cost of completion of work by remedying defects or supplying omissions in it to meet the requirements of a contract may be so great as to preclude the conclusion of substantial performance.”

A party is not to be denied, by the application of this rule, the right to have his building erected in the manner agreed upon, and as in this case the referee has found that the work omitted by the contractor “ cannot be done now except at great cost and with great risk to the building,” the plaintiff should not be permitted to recover, and the judgment should be reversed, and there should be a new trial.

Dykman and Cullen, JJ., concurred.

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


text:
    Henry A. Root, Respondent, v. The New York and New England Railroad Company, Appellant.

      Negligence — horse killed ly falling from a railroad can' — evidence of gross negligence.

    Upon, the trial of an action brought to recover the value of a horse shipped upon the defendant’s railroad, which the plaintiff claimed was killed through the negligence of the defendant, it was shown, that the horse was shipped and put into a car designated by the defendant’s agent and securely tied; that one of the doors of the car, owing to some defect of construction or want of repair, could not he closed; that in this condition the car was placed in the train, no examination having been made by the defendant before the train started to ascertain the condition of the car, or, if its condition was known, no effort having been made to remedy it, and that after the train started the horse fell from the car and received fatal injuries.

      Held, that there was ample evidence to sustain the conclusion that the defendant was guilty of gross negligence.
    Appeal by the defendant, The New York and New England Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Putnam on the 30th day of June, 1894, upon the decision of the court rendered after a trial at the Putnam Circuit before the court without a jury.

      Walter Anthony, for the appellant.

      Frederic 8. Barminn, for the respondent.
   Brown, P. J.:

This action was brought to recover the value of a horse shipped upon the defendant’s road, and which plaintiff claimed was 'killed through defendant’s negligence.

The defense is that by the contract of shipment the defendant was released from all liability for injury to the horse, except when proved to have occurred through gross negligence.

This case was before this court on a prior appeal (J6 Hun, 23), and it was then held that the circumstances surrounding the execution of the contract justified the submission to the jury of the.q,uestion whether it was binding upon the plaintiff.

The evidence now before the court does not permit any different conclusion than was then expressed. The paper was not delivered to the shipper; neither was it read to him, nor was his attention called to the provision which limited the defendant’s liability. But independent of that question, the evidence is ample to sustain the conclusion that the defendant was guilty of gross negligence. The horse was shipped at Brewster’s Station and put into a car, which was designated by the company’s agent,- and securely tied. One of the doors of the car, owing to some defect of construction or want of repair, could not be closed, and in this condition the car was placed in the train. No examination appears to have been made by the defendant before the train started to ascertain the condition of the car, or if its condition was known, no effort was made to remedy it. And after the train started, in some way not explained in the evidence, the horse fell from the car and received fatal injuries. The defendants liability was brought clearly within the terms of the contract, and the judgment should be affirmed.

Dykman and Cullen, JJ., concurred.

Judgment affirmed, with costs.


text:
    William I. Turner, Respondent, v. Horace Craighead, Appellant.

      Owner of- a dog — cha/i'geahle with knowledge of its eha/i'acterristics — damages fm' personal injuries.

    If a person keeps an animal upon Ms place and fails to exercise ordinary supervision over it, and allows it to run, he is chargeable with the same knowledge in regard to the dog which he would have obtained had he made.inquiry apd exercised ordinary supervision.
    Upon the trial of an action brought to recover damages for personal injuries sustained by the plaintiff by reason of his having been bitten by a dog owned by the defendant, evidence was given by an employee of the defendant to the effect that the dog had made an attack upon him and bitten him and torn his clothing, and that it had attacked and bitten a carpenter upon the defendant’s premises; that, when any person passed along the highway, the dog would rush out after him, and that the dog was ugly and would jump at horses’ heads and try to catch them by the nose.

      Held, that the evidence was sufficient to support a verdict of the jury in favor of the plaintiff in such action, although there was no evidence to show that the owner of the dog knew of such occurrences, and although such employee testified that he had never informed his employer of the habits or characteristics of the dog.

      Appeal by the defendant, Horace Craighead, from a judgment of the County Court of Westchester county in' favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 8th day of February, 1894, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 24th day of February, 1894, denying the defendant’s motion for a new trial made upon the minutes.

      William A. Boyd, for the appellant.

      Frederick, W. Shermcm, for the respondent.
   Brown, P. J.:

This action was brought to recover damages resulting from being bitten by a dog owned by the appellant in July, 1893.

The exceptions present a single question only, viz., whether the evidence was sufficient to charge the aj)pellant with knowledge of the vicious habits and character of the dog.

It was proven that the dog had bitten persone on two occasions prior to the attack made upon the plaintiff, and that it was his habit,, as also that of two other dogs owned by the appellant, to rush out at persons passing upon the highway and bark at them.

A witness named Owens, who had been in the employ of the appellant during the year 1892, testified that the dog had made an attack upon him and bitten him and torn his clothing. That he had attacked and bitten a carpenter upon the appellant’s premises. That when any person passed along the highway the three dogs would all rush out after them. That the dog in question was ugly and would jump at horses’ heads and try and catch them by the snout.

There was no evidence to show that the appellant knew of those occurrences, and Owens testified that he never informed him of the habits or characteristics of the dog.

The court denied a motion made to dismiss the complaint, and in a charge, to which there was no exception, submitted it to the jury to determine whether the appellant ought to have known that the dog was savage and likely to bite, charging them that, if a person keeps an animal upon his place and fails to exercise ordinary supervision over it and lets it run and fails to obtain the knowledge which ordinary supervision over it would give, he is chargeable with the same knowledge he would have obtained had he inquired and supervised in the ordinary and usual way.

This ruling of the court was correct and is sustained by abundant authority. (Brice v. Bauer, 108 N. Y. 432; Wharton on Neg. § 905 ; Knowles v. Mulder, 74 Mich. 202.)

The judgment and order must be affirmed, with costs.

Dykman and Cullen, JJ., concurred.

Judgment and order affirmed, with costs.


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    August Voege, Respondent, v. Pierre L. Ronalds, Jr., and Another, Appellants.

      Lease, with covenant of renewal —presumption as to the tenant’s homing elected to extend the term — it.• operates as a continuous term — contract under seal, not modified by parrot.

    Where a lease under seal for the term of one year contained the provision: “ It is further agreed by the party of the first part to extend the above lease for a term of two additional years at the same yearly rental if party of the second part so desires,” the tenants, by retaining the possession of the property for two years from the commencement of such lease, by holding over after the expiration of the first year, are presumed to have elected to extend the lease for the full additional term of two years.
    When there is a lease for a definite term with the privilege of an additional term .at the tenant’s option, it operates as a lease for the continuous term if the tenant so elects.
    A contract or covenant under seal cannot be modified by a parol unexecuted agreement.
    Appeal by the defendants, Pierre L. Ronalds, Jr., and another, * from a judgment of-the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 20th day of March, 1894, upon the verdict of a jury rendered by direction of the court after a trial at the Kings County Circuit.

      WilUam B. Kill, for the ajipellants.

      J. Stewart Boss, for the respondent,
   Brown, P. J.:

This action was brought to recover rent of eertaiii premises in the city of Brooklyn for the year ending November 1, 1892.

The defendants entered into possession of the property under a written lease under seal for the term of one year, beginning November 1, 1889. The lease contained the following provision: “It is further agreed by the party of the first part to extend the above lease for a term of two additional years at the same yearly rental if party of the second part so desires.”

The appellants retained possession of the property until November 1, 1891, paying the rent therefor, when, having given notice to the plaintiff, they vacated the premises.

The court directed a verdict for the plaintiff upon the ground that by holding over after the expiration of the first year, the appellants must be presumed to have elected to extend the term for two' years. This ruling was correct.

Assuming that the appellants are right in the proposition that the continuance in possession of the property after the expiration of the first year raised only a rebuttable presumption that they elected to extend the term in accordance with the terms of the lease, still there was nothing in the evidence to weaken that presumption, or to raise a question of fact for the jury to pass upon. At the expiration of the first year there was no new transaction or conversation between the parties. The appellants simply continued their occupancy, paying the rent monthly. The lease called for no notice from either party to the other, and none was given. The term was to be extended if the appellants desired it, and there could be no stronger evidence of their desire than their remaining in possession and paying- the stipulated rent.

When there is a lease for a definite term, with a privilege of an additional term at the tenant’s option, it operates as a lease for the continuous term if the tenant so elects. (Chretien v. Doney, 1 N. Y. 419 ; Kramer v. Cook, Mass. [7 Gray] 550.)

When, therefore, the appellants continued in possession of the property after the expiration of the first year, it must be presumed they did so under the lease, and there is no basis for the argument that, by holding ov'er, they became tenants from year to year.

The rights of the parties were fixed at the expiration of the first year, and, if there is any defense to the action, it must be found in what occurred during the second year of the term.

The testimony introduced by the appellants tended to show, and would permit the conclusion, that the plaintiff called upon them in March, 1891, and asked them what they were going to do about staying in the store the third year, and they replied that they would of course remain during the second year, but they could not then give him an answer about the third year, and, if they decided not to stay, they would give him three months’ notice, to which plaintiff replied: “ It was all satisfactory; it was all right.”

The rule is settled that a contract or covenant under seal cannot be modified by a parol unexecuted agreement. (Coe v. Hobby, 72 N. Y. 141; Smith v. Kerr, 108 id. 31; McKenzie v. Harrison, 120 id. 260.)

The conversation testified to, therefore, did not operate to modify in any way the terms of the lease, and did not establish any defense to the action.

The judgment must be affirmed.

Dykman and Cullen, JJ., concurred.

Judgment affirmed, with costs.


author: Brown, P. J. :

text:
    Adrian Vanderveer, Respondent, v. John Suydam, Appellant.

      Option to broker for sale of land — broker’s commission, when ea/rned — not lost by laches of owner.

    When a person engages another as his broker to sell real estate for him, giving such broker an option to purchase himself or sell to another such real estate, and such broker procures a purchaser willing to buy the land upon the terms offered, and communicates that fact to the owner and arranges for a meeting between the owner and the proposed purchaser for the purpose of executing the contract of sale before the option expires, the broker has done all that he is required to do, and the owner cannot, by deferring the meeting with the proposed purchaser until after the date of the expiration of the option, defeat the right of the broker to recover his commissions for the sale of such property.
    Appeal by the defendant, John Suydam, from a judgment of the Supreme Court in favor of the plaintiff, bearing date the 6th day of April, 1894, and entered in the office of the clerk of the county of Kings, upon the verdict of a jury rendered after a trial at the Kings County Circuit, and also from an order entered in said clerk’s office on the 5th day of May, 1894, denying the defendant’s motion for a new trial made upon the minutes.

      Josiah T. Ma/recm, for the appellant.

      Edwcvrd M. Grout, for the respondent.
   Brown, P. J. :

The complaint in this action alleges the employment of the plaintiff by the defendant to procure a purchaser of a farm in the town of Flatbush, Kings county, upon certain specific terms, and that plaintiff procured a purchaser in Mr. Cyrus E. Staples, who was ready and willing to purchase the farm on the terms designated.

The employment of the plaintiff was not denied by the answer, but it was alleged that the sale of the farm was to be made subject to a lease thereof for agricultural purposes, and with a reservation of the homestead so long as defendant’s mother should live, and that plaintiff’s employment expired on March 25, 1893. The answer denied that plaintiff procured a purchaser upon the terms aforesaid within the time limited.

Upon the issue thus made the parties went to trial, and the disputed questions relating to the terms of plaintiff’s employment were settled in his favor by the verdict of the jury.

It appeared from the plaintiff’s testimony that in February and the early part of March there had been some effort on his part, with the defendant’s consent, to sell the property. Defendant was willing to sell, but would not name a price, and offers of $1,500 and $2,000 per acre had been made and refused. Finally defendant said he would sell for $2,500 per acre. Whereupon plaintiff told him that his customer -would not come to an agreement unless the offer was put in writing. Defendant thereupon signed a paper, of which the following is a copy:

“ Office of Adrian Yanderveer, \
“ Real Estate and .Mortgage Loans, V
“ Flatbush Avenue, cor. Linden Boulevard. )
“ Flatbush, L. I., Ma/roh 20, 1893.
“ In consideration of the sum of one dollar ($1.00) to me paid, the receipt thereof I hereby acknowledge, I agree to sell to A. Yanderveer, personally, or to whom he may introduce, the plot of land, known as the Cornelius Suydam Eai'm,’ situate on the northwest corner of road leading from Flatbush to Elatlands Neck and Suydam’s Lane, said farm containing about 50 acres, for the sum of twenty-five hundred (2,500) dollars per acre, and I agree to accept the following terms, subject to possession of the homestead on said land: Five thousand dollars in cash on signing agreement, forty per1 cent in cash on delivery of deed, on or before thirty days from date of agreement, and to accept a purchase-money mortgage of sixty per cent, bearing interest at the rate of five per cent per annum for the balance of the purchase price.
“ This option to expire on Saturday, March 25, 1893, at twelve o’clock, noon.
“JOHN SUYDAM.”

There was a motion to dismiss the complaint at the close of plaintiff’s testimony upon the ground that a purchaser was not procured before the expiration of the option.

This motion was properly denied. The plaintiff and Staples both testified that he (Staples) was ready to take the property upon the terms offered. Staples testified that he agreed with plaintiff to take the property on March twentieth or twenty-first and to meet defendant at Mr. Lott’s office and sign the contract, and the plaintiff testified that he communicated that fact to the defendant on the twenty-first of March and that defendant agreed to go on the following day to Mr. Lott’s office and close the bargain.

If this testimony was true, and we must, in view of the verdict, assume it to be true, defendant could not, by deferring his meeting with Staples until after the date fixed in the option, defeat the plaintiff’s recovery. By procuring a purchaser willing to buy the land upon the terms offered, and communicating that fact to defendant and arranging for a meeting to execute the contract before the option expired, plaintiff had done all that the contract required him to do and all that it was possible for him to do.

The defendant requested the court to charge the jury that “ a reservation of the possession of the homestead without any limitation as to time in law is equivalent to a reservation of the title.” This was refused, the court saying : There is no provision reserving it in that way. • * * * I decline to interpret that 'contract to the jury. I leave it to them, as matter of fact, to say what the arrangement was. The option is simply evidence to be considered by them in determining what the actual parol contract was between the parties.”

There was no error in this ruling. The court had already, at defendant’s request, charged that the option was not the contract between the parties, and there was no claim in the answer that the expression in that paper, “ subject to possession of the homestead,” was a reservation of the title to that part of the farm.

The claim was that it related to the occupation of the property by defendant’s mother during her life. >

It was of no importance to the case to determine what the precise legal effect of those words would have been in a deed or contract of sale of the land. The question at issue was what was the defendant’s contract with the plaintiff. The option expressed the terms upon which a purchaser must take the land. The expression used in relation to the homestead was ambiguous, and it was competent to give evidence that would explain its meaning.

The evidence tended to show that defendant did not claim a reservation of title or of^ possession during even his mother’s life. Staples testified that in his conversation with defendant it was not mentioned that the possession of the homestead should be reserved during the life of defendant’s mother, but only for a designated time.

What the terms were, and what was intended by the use of the expression in question were, therefore, facts to be determined by the jury, and not a question of law for the court.

The judgment and order must be affirmed.

Dykman, J., concurred; Cullen, J., pot sitting.

Judgment and order affirmed, with costs. ¡


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    Josephine Von Atzinger, as Administrator, etc., of Louis Von Atzinger, Deceased, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.

      Presumption as to contributory negligence — conclusive proof of- — ■ duty of one driving on a highway over a railroad track.

    The absence of contributory negligence is a fact which must be affirmatively shown by the plaintiff, upon the trial of an action brought to recover damages resulting from the death of her intestate by reason of the alleged negligence of the defendant, before she is entitled to a recovery, and it can never be presumed or inferred from proof of the accident and of negligence on the part of the defendant.
    ■ Freedom from contributory negligence may be affirmatively shown although there were no eye witnesses of the accident, and even though its precise cause and manner of occurrence are unknown.
    If, in such case, the surrounding facts and circumstances reasonably indicate or tend to establish that the accident might have occurred without contributory negligence on the part of the deceased, that inference becomes possible, in addition to that which is involved in a careless or willful disregard of personal safety, and a question of fact may thus arise to be solved by a jury and require a choice between possible but divergent inferences.
    If, however, these facts and circumstances, coupled with the occurrence of the accident, do not indicate or tend to establish the existence of some cause or occasion therefor which is consistent with the exercise of proper prudence and care on the part of the person injured, then the inference of contributory negligence is the only one left to be drawn, and a nonsuit should be granted.
    A person driving on a highway, before attempting to cross railroad tracks, is bound to look and to “listen, and to have such control over-his horse as will enable him to avoid an impending danger.
    When a man in broad daylight gets in front of a train of cars, whose approach is visible to him from several points upon the highway over which he approached the railroad, and is run over and killed, the conclusion, in the absence of explanatory evidence, is irresistible that his being run over and killed was the result of gross carelessness upon his part.
    Appeal by tlie defendant, The New York Central and Hudson River Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Rockland on the 29th day of Hay, 1894, upon the verdict of a jury, rendered affer a trial at the Rockland Circuit, and also from an order entered in said clerk’s office on the 5th day of June, 1894, denying the defendant’s motion for a new trial made upon the minutes.

      Ashbel Green and Herbert E. Kmney, for the appellant.

      WilUcm, MeOauley, Jr., for the respondent.
   Brown, P. J.:

Tlie plaintiff’s intestate, while driving a covered milk wagon, was struck and killed by a locomotive of the "West Shore railroad at the crossing of the Short Clove road (so called), near the village of Haverstraw, on the morning of August 5, 1893. The evidence introduced by the plaintiff was sufficient to support the finding of negligence on the part of the defendant, but we are of the opinion that it did not permit the conclusion that the deceased was free from negligence which contributed to the accident. The scene of the accident was upon the side of a steep mountain. The highway descends the mountain in, a northeasterly direction and crosses the railroad at an acute angle. South of the crossing the railroad curves to the west and for a short distance runs in substantially the same direction as the highway. It then curves to the east and runs southerly. The collision was with a train going north upon the easterly side of the two tracks of the railroad. At a point on the highway 600 feet southwest of the crossing a person can look to the south along the railroad for 3,000 feet; from that point to the crossing the view south is in many places obstructed by rocks and shrubs, but there are places where the view is open, and, as one of the witnesses testified, for .about one-lialf of the distance a person on the highway could see south along the railroad, and for one-half he ■could not. Between the crossing and a point on the highway 116 feet southwest the view of the railroad south was unobstructed, and a train coming north on the tracks within 3,000 feet would be visible to a person at any point on the highway west of the crossing and within 116 feet thereof.

Three witnesses called by the plaintiff testified to seeing the • collision between the locomotive and the wagon in which deceased was riding, but none of the plaintiff’s witnesses saw the deceased, or observed his wagon approaching the crossing; and there was no evidencte tending in any way to indicate whether he took any precaution to ascertain and discover the approach of the train.

The flagman stationed at the crossing testified to seeing the horse immediately before the accident, on the south-bound track, but he observed no effort on the part of the deceased to avoid the train that at that moment was in close proximity to him.

The absence of contributory negligence is a fact which must be affirmatively shown'by a plaintiff before there can be a recovery for personal injuries. It never can be presumed, and it cannot be inferred from proof of the accident and of negligence on the part of the defendant. (Weston v. City of Troy, 139 N. Y. 281; Tolman v. S. B. & N. Y. R. R., 98 id. 198 ; Woodard v. N. Y., L. E. & W. R. R., 106 id. 369 ; Riordan v. Ocean Steamship Co., 124 id. 655 ; Wiwirowski v. L. S. & M. S. R. Co., Id. 420.)

In Tolmamis ease the rule is very clearly stated as follows: “ The burden of establishing affirmatively freedom from contributory negligence may be successfully borne, though ther'e were no eye-witnesses of the accident, and even although its precise cause and manner of occurrence are unknown. If, in such case, the surrounding-facts and circumstances reasonably indicate or tend to establish that the accident might have occurred without negligence of the deceased, that inference becomes possible, in addition to that which involves a careless or willful disregard of personal safety, and so a question of fact may arise to be solved by a jury, and require a choice between possible, but divergent, inferences. If, on the other-hand, those facts and circumstances, coupled with the occurrence of the accident, do not indicate or tend to establish the existence of some cause or occasion of the latter, which is consistent with the exercise of proper prudence and care, then the inference of negligence is the only one left to be drawn, and the burden resting upon the plaintiff is not successfully borne, and a nonsuit for that reason becomes inevitable.”

And in Riordan’s case the court said: “We are not permitted to' guess or assume that the deceased was free from fault because he was injured, or that every person will take care of himself from regard to his own life and safety. * * * It is incumbent upon the plaintiff to show by a preponderance of evidence such facts and circumstances as will satisfy the minds of the jurors that the deceased exercised proper care and prudence, and did not omit the-precautions of a prudent man under the circumstances.”

Tolma/ni.s case was quite like the case at bar. The accident occurred at a highway crossing in the evening, and there was no evidence of the exercise of care by the deceased. To one approaching the crossing the headlight of an approaching locomotive was visible for a distance great enough to give adequate warning. There was nothing in the condition of the atmosphere to have prevented the deceased from seeing the locomotive if he had looked in the direction from which it approached him. On this state of facts a judgment izi plaintiff’s favor was reversed, the court saying: “ It is impossible to doubt that deceased might have seen the approaching train if he had looked for it as a prudent man should.”

The collision in the case befoz*e us occurred in broad daylight, and there was nothing to obscure the vision or prevent the deceased from seeing the train as it approached the crossing. The crossing was a dangerous ozie, but the deceased was familiar with it, and had been in the habit of using it daily for several months prior to the accident. He was bound to look azid to listen, and to have such control of his horse as would enable him to avoid an impending danger.

It appears that his horse was goizzg slowly at the time of the acci-1 dezzt. Apparently it was under the complete control of the driver. Bzzt, in the absence of all evidence as to the conduct of the deceased as he approached the crossing, how is it possible to say that he tpok the precaution which a prudent man was bound to take with reference to his safety ?

Did he listen for the train ?

Did he look for it at any of the points at which he could have seen its approach ?

Did he see it as he drove his horse over the 110 feet of road just west of the crossing? If he did, how did he come to get in front of the engine ? Did he try to avoid it, and, if so, what did he do ? Did he fail to see it ? If so, what was the cause or reason for that ?

These inquiries are vital to the plaintiffs case. In the absence of evidence they cannot have an intelligent answer.

It is, I think, impossible to contemplate such an accidezit as occurred to the deceased, under the circumstances disclosed, and not- be convinced that the slightest attention on the part of the deceased and most ordinary care on his part would have avoided it; and that, when a man, in broad daylight, gets in front of a train of caz’s, whose approach is visible to him from several points upon the highway over which he approached the railroad, the conclusion, in the absence of any explanatory evidence, is irresistible that the accident was the result of gross carelessness upon his part. As was said in Tobnan's case {supra): “ The facts leave the occurrence explainable as to its cause and occasion only by the theory of negligence on the part of deceased. They indicate no way in which the accident might have happened; suggest no adequate cause which could or might have operated, which way or cause showed freedom from fault on the part of deceased, and could have produced the result in spite of his care and prudence.”

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

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

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


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    In the Matter of the Petition of Hiram Farrington, Appellant, v. The Mayor, Aldermen and Commonalty of the City of New York and Harriet A. Brown, as Administratrix of Nathan L. Culver, Deceased, Respondents.

      Order confirming a report of commissioners of appraisal — when conclusive.

    The order confirming the report of commissioners of appraisal appointed pursuant to chapter 490 of the Laws of 1883 is, while it stands unreversed, conclusive upon two adverse claimants of the damages awarded by such report for the injury done to certain property. The remedy of either of such claimants, feeling aggrieved by the report of the commissioners, is to appeal from the order confirming the same; no inquiry while such order stands can be made collaterally into the respective rights of the parties.
    Appeal by the petitioner, Hiram Farrington, from an order of the Supreme Court, made at the Westchester Special Term and entered in the office of the clerk of the county of Westchester on the 19th day of May, 1894, sustaining the exceptions of the respondents to the referee’s report and denying the petitioner’s motion to confirm said report.

      Fra/ncis Larkm,, for the petitioner, appellant.

      James B. Lockwood, for the respondents.
   Brown, P. J.:

The order appealed from has determined that the administratrix of the respondent Culver is entitled to an award made to the appellant by commissioners of appraisal, appointed pursuant to chapter 490 of the Laws of 1883, for land taken for the purposes of the aqueduct constructed to supply the city of New York with water. . The award was made in a report dated August 18, 1891, and was confirmed by an order of the Supreme Court dated October 24, 1891.

The land taken was a part of a farm owned at the time of the appointment of the commissioners by Nathan L. Culver, and upon which the petitioner held a mortgage.

The statute referred to vested the title to the land proposed to be acquired for the aqueduct in the city upon the filing of the oath of the commissioners of appraisal. The oath was filed in October, 1884, and shortly thereafter Culver conveyed the farm to the petitioner.

Both parties filed claims before the commission, and appeared before them by counsel. In 1884 Culver died.

The commission assessed the value of the land taken, and all damages sustained, at the sum of $1,444, and awarded $100 to Culver, and the balance to the petitioner.

The petition states that the city of New York having been forbidden to pay said award to the petitioner, paid it to the Mercantile Trust Company. The petitioner thereupon moved at Special Term for an order directing the trust company to pay said award to him. This motion was opposed by the respondent, who is Culver’s administratrix, and the court determined that she was entitled to have the whole award paid to her.

Without expressing any opinion upon the merits of the controversy, we are of the opinion that the order confirming the commissioners’ report is conclusive upon the rights of the parties, and that the remedy of the administratrix, if she felt aggrieved by the report of the commissioners, was to appeal from the order confirming it, and that while such order stands unreversed no inquiry can be made collaterally into the respective rights of the parties.

The statute referred to requires tlie commissioners of appraisal to make a report containing a description of the 'real estate taken and a statement of the sum determined upon by them as compensation to be made by the city to the owner or persons entitled to. or interested in each parcel taken, and a statement of the respective owner or persons entitled thereto. (§ 12.)

The counsel for the city, or any person interested in the proceeding, was authorized to move for the confirmation of said report, and to give notice therefor. (§ 11.) Upon confirming the report the court was required to direct to whom the money was to be paid, and it was further provided that the report, when confirmed, should be final and conclusive as well upon tlié said mayor, etc., of New York as upon owners and all persons interested in or entitled to said real estate; and also upon all other persons whomsoever.” (§ 15.)

The city was required to pay to the respective persons named in said report in whose favor any sum was reported, the sum so reported within four months after the confirmation of tire report, and in default of the payment and after demand upon the comptroller of the city, such owner or interested person could sue the city in any court having cognizance thereof. (§ 16.)

Section 21 provides for appeals from the order of confirmation, and a review by the appellate court of any determination of the Special Term.

The claim of the administratrix, that the report of the commissioners is not binding upon her because she did not appear before them, cannot be sustained.

She has no rights in the matter except such as she acquires as the legal representative of her intestate.

The statute required all claims to be presented to and filed with the commissioners within three years after the filing of the commissioners’ oath.

Culver filed his claim with the commissioners, and they thereupon acquired jurisdiction to determine its validity, and the amount which he was entitled to be paid by the city. The fact that Culver filed such a claim within the period limited by the statute, and that jurisdiction was acquired by the commissioners to determine it, is vital to the rights which the administratrix now asserts. She never has made any separate claim to the commissioners, and the time ■within which claims could be presented has long since expired. The legal effect of the order confirming the report was that of an adjudication upon the rights of the parties, and the administratrix’s remedy, if she was aggrieved by the report, was to appear and oppose its confirmation, and if her objections were overruled to appeal. The order of confirmation is an insuperable obstacle to the assertion by her of any right to the money awarded to the appellant.

The order appealed from must be reversed, with ten dollars costs and disbursements, but in order that the administratrix may not be denied the right to be heard, the motion of the petitioner will not be granted if within thirty days the administratrix procures the order confirming the report to be vacated, so far as it affects the award in question, and obtains leave to be heard upon its confirmation.

If such relief is not obtained by the administratrix, respondent, then petitioner’s motion will be granted.

Cullen, J., concurred; Hykman, J., not sitting.

Order reversed, with ten dollars costs and disbursements. Petitioner’s motion granted unless the administratrix, respondent, within thirty days procures the order confirming the commissioners’ report to be vacated, so far as it affects the award in question, and obtains leave to be heard upon its confirmation, in which case motion denied.


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    John E. Norcross, Receiver, etc., of Lewis R. Stegman, Respondent, v. Henry S. Hollingsworth, Appellant, Impleaded with Another.

      Receiver in supplementary proceedings of a person holding the office of sheriff — what property passes to him — when he cannot maintain an action on a bond given by the under sheriff.

    The receiver of a judgment debtor appointed in supplementary proceedings takes title to such property as the judgment debtor was possessed of or entitled to at the date of the order appointing him, and takes no title to after-acquired property, and he cannot claim or enforce any right that becomes vested in the judgment debtor subsequent to the order appointing him receiver.
    Where it is not shown upon the trial of an action brought, by the receiver appointed in supplementary proceedings of the property of a person holding the office of sheriff, upon an undertaking given by the under sheriff to such sheriff for the faithful discharge of his duties as such under sheriff, that the sheriff had actually paid certain moneys, which'had been converted by the under sheriff, to the person entitled to receive the same, a motion to dismiss the complaint should be granted, as the sheriff’s right to receive the moneys converted by the under sheriff was an official right and not one that belonged to him as an individual, and would not pass to the receiver of his property.
    Appeal by tbe defendant, Henry S. Hollingsworth, frorii a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 14th day of July, 1893, upon the verdict of a jury rendered after a trial at the Kings County Circuit.
    The plaintiff in this action was appointed, in proceedings supplementary to execution, receiver of all the property, debts, equitable interests, rights and things in action, effects and estate, real and personal, of Lewis R. Stegman.

      Fernando Solinger, for the appellant.

      M. L. Towns, for the respondent.
   Brown, P. J.:

The plaintiff was appointed receiver of the property and effects of Lewis R. Stegman by an order of a judge of the City Court of Brooklyn, dated April 15, 1884. At that date Stegman was sheriff of Kings county. Francis S. Hodgkinson had been duly appointed under sheriff by Stegman, and on the 5th day of January, 1882, the defendant and Hodgkinson executed and delivered to Stegman a bond in the penalty of $10,000, conditioned for the faithful discharge by Hodgkinson of the duties of under sheriff, and the payment and discharge by him of all liabilities incurred by said Stegman by and through any act of said Hodgkinson as such under sheriff.

Subsequent to the appointment of the plaintiff as receiver a judgment of foreclosure and sale was executed by Hodgkinson. The judgment directed the sale of certain real estate in Kings county by the sheriff, and that after payment of the amount due upon the mortgage, together with certain taxes and assessments and costs, he should deposit the surplus with the treasurer of Kings county within five days after receiving the same.

Plodgkinson received the money on the sale of the real estate in June, 1885, and after making tlie payments directed by the judgment, there remained a surplus of about $3,000, which, after demand, he failed to deposit with the county treasurer or pay over to the sheriff. This action was brought upon the bond given by Hodgkinson and the defendant .to the sheriff, and the claim is for the surplus arising from the foreclosure sale.

At the close of the evidence the defendants moved to.dismiss the. complaint upon the grounds, among others, that the plaintiff hadno; title to the cause of action. • '

This objection, we think, was well taken, and is fatal to the judgment. There is no allegation in the complaint that the sheriff had, paid the surplus to the county treasurer, nor was there any proof of that fact. Hodgkinson was bound to pay over the money to the. sheriff upon his demand, but the sheriff’s right to receive the money was an official right and not one that belonged to him as an individual. He had not been compelled to pay over the surplus money, hence, he had suffered no actual damage by reason of Hodgkinson’s defalcation. He was liable for Hodgkinson’s default, but such liability flowed from their official relation.

It follows that the money sought to be recovered in this action was not Stegman’s property. While he had a right to receive it, his receipt of it would be as sheriff, and he would have been bound, immediately upon its receipt, to have deposited it with the county treasurer, as directed by the foreclosure judgment.

The plaintiff represents Stegman’s creditors, and he has title to such property as Stegman possessed individually at the date of the appointment. He had no title and no right to receive trust funds which Stegman was entitled to receive as sheriff. But if it could be shown that Stegman had made good Hodgkinson’s default, and liad a right of action upon the bond in suit for damages sustained which would belong to him individually, and would be applicable to the payment of his debts, the plaintiff could not recover upon the evidence now before ns. The judgment of foreclosure under which the sale was made by Hodgkinson was granted nearly three months after plaintiff, was appointed receiver, and the cause of action arising from the failure to comply with its direction as to the surplus money did not arise until June, 1885.

The receiver took title to such property as Stegman possessed or was entitled to at the date of the order appointing him. He takes no title to after-acquired property, and cannot, therefore, claim or enforce any rights which become vested in the debtor subsequent to the order appointing him receiver. (Dubois v. Cassidy, 75 N. Y. 298 ; Campbell v. Genet, 2 Hilt. 290; Thorn v. Fellows, 5 Wkly. Dig. 473; Masten v. Amerman, 51 Hun, 244; Columbian Institute v. Cregan, 3 N. Y. St. Repr. 287.)

The claim asserted in this suit was property Stegman acquired after plaintiff’s appointment, and, consequently, never vested in him as receiver.

Por this reason the motion to dismiss the complaint should have been granted.

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

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

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


author:
Brown, P. J.: Cullen, J.:
      Dtkman, J.

text:
    The People of the State of New York ex rel. Edward M. Goring, Respondent, v. The President and Board of Trustees of the Village of Wappingers Falls, Appellants.

      Chapter 680 of 1892 — •right of a voter to vote for a person for an office not named on the official ballot — unconstitutionality of laws prohibiting it — police justice of the village of Wappingers Falls — the Supreme Court has no power to direct the trustees of such village to allow an annual salary to him.

    Section 104 of the Election Law (Chap. 680 of the Laws of 1892) must he construed to give a voter the- right not only to vote for any person for an office named on the official ballot, but also for an office which ought to have been named thereon, but which has been omitted therefrom by the neglect of the official charged with the duty of its preparation. (Dykman, J., dissenting.)
    The right to vote at an election is derived from the Constitution; the manner of voting is regulated by statute; the constitutional provision that “ Every male citizen of the age of twenty-one years * * * shall be entitled to vote ” at all elections confers the right to vote for a person for every office required by law to be filled at the election at which the voter desires to vote, and any law which prohibits him from so voting is unconstitutional. (Dykman, J., dissenting.)

      The right of a voter to vote for a candidate at any election is not dependent upon the performance or non-performance of the duty of the officer charged hy chapter 680 of the Laws of 1893 with the preparation of the official ballot.
    (Dykman, J., dissenting.)
    The fees of the police justice of the village of Wappingers Falls are a charge upon the village, and must he audited and allowed in the same manner as other village charges, unless such police justice shall he allowed an annual salary fixed hy the hoard of trustees of the village which is empowered to fix and establish an annual salary to he paid to the police justice hy resolution to he entered in its minutes, which salary when so fixed is in lieu of fees to which the justice might otherwise he entitled. The discretion is vested in the hoard of trustees of the village to determine between the two modes of compensation, and it is beyond the province of the Supreme Court to determine the 'exercise of such election hy such hoard of trustees.
    Appeal by tbe defendants, Tbe President and Board of Trustees of tbe Tillage of "Wappingers Falls, from an order of tbe Supreme Court, made at tbe Dutcbess Special Term and entered in tbe office of tbe cleric of tbe county of Dutcbess on tbe 30tb day of June, 1894, granting tbe relator’s motion for a peremptory writ of mandamus, directed to tbe president and board of trustees of tbe village of Wappingers Falls requiring tbem to forthwith provide tbe relator as police justice of said village tbe necessary blanks and stationery for tbe business of bis office, that they provide and designate a suitable place for tbe bolding of tbe sessions of court in connection with tbe office of such police justice, and that they fix and determine an annual salary for the services of tbe relator as such police justice commensurate with tbe duties of such office.

      Joseph F. Barna/rd, for the appellants.

      Bernard J. Tirmey, for tbe respondent.
   Brown, P. J.:

* Tbe facts out of which this case arose are correctly stated in'tbe opinion of Justice .Dykman, and need not be here repeated. Tbe question presented is whether a duly qualified voter may vote for a person for an office which is not named on tbe official ballot, but which exists by statute, and is required to be filled at an election at which the voter desires to vote. Section 104 of tbe Election Law (Chap. 680, Laws of 1892) provides that within tbe voting booth “ tbe name of any person for whom tbe voter desires to vote for any office named, on the official ballot may be written on the official bal-' lot which the voter proposes to vote; or a paster containing one or more such names or offices may be pasted thereon.” The Ballot Reform Law of 1890 (Chap. 262, § 25) provided that “The voter' may write or paste upon his ballot the name of any person for whom he desires to vote for any office.” But under section 104 of the present law, it will be observed that the right to write or paste upon the ballot the name of any person for whom the voter desires to vote, is apparently limited to the offices named on the official ballot. In the case before us the office of police justice was not named on the official ballot. The office had, however, been created by law, and it was required to be filled at the village election. There had, however, been no incumbent of the office for the greater part of the expiring term, and no nominations had been made for it, and the fact that it was to be filled was probably overlooked by the officers and the great majority of electors of the village. It was, nevertheless, by section 82 of the Election Law, made the duty of the clerk of the village to furnish official ballots containing the names of all the offices to be filled at the election, and the name of the office of police justice should have been upon the ballot. We are of the opinion that section 104 must be construed to give to the voter the right, not only to vote for any ¡Derson for an office named on the ballot, but also for an office which ought to have been named thereon, but which had been omitted therefrom by the neglect of the officer charged with the duty of its preparation. The right to vote at an election is derived from the Constitution ; the manner of voting is regulated by statute. The constitutional provision is that “ Every male citizen of the age of twenty-one years * * * shall be entitled to vote” at all elections. This provision confers the right to vote for a person for every office required by law to be filled at the election at which the voter desires to vote. The Constitution contains no restriction upon this right, and the only express power given to the Legislature in reference to it is to enact laws “ for ascertaining by proper proofs the citizens who shall be entitled to the right of suffrage.” There is, of course, an implied po'wer to regulate the manner of voting, but any law which prohibits the right to vote is unconstitutional. The present Election Law has provided for the preparation of an official ballot by certain designated officers, and it makes it tlieir duty to print tlie names of all offices to be filled upon the face of each and all of the official ballots. This duty is in no wise made dependent upon the making of nominations, it being further provided by section 82 that if the full number of candidates for the offices specified on any one kind of ballot shall not have been nominated “ * * * blank spaces shall be left on each ballot of such kind where the names of candidates would appear, except for such failure to nominate.”

The intention of the Legislature is plain. It is that there shall be printed upon the official ballot the name of every office to be filled at the election, and if this duty is performed by the officer charged with it, the voter, under section 104, is enabled to exercise his constitutional right to vote for any person he chooses for any office to be filled at the election. It is equally plain that the Legislature did not intend that this right should depend upon the performance or non-performance of the duty of the officer charged with the preparation of the official ballot. Yet that is what fhe argument of the appellants comes to. The voter, it is said, may vote for any person for any office named on the ballot, but if, through inadvertence, neglect of duty or other cause, the name of the office is omitted from the ballot, no vote can be cast for any person for that office, and no election for that office can be held. Such a construction, if it could be adopted, would disfranchise the voter and deprive the people of the right of the proper administration of their laws. But it cannot prevail, as it would make the law unconstitutional. The original Ballot Reform Law, when introduced in the Legislature in 1888, contained a provision which permitted the voter to vote only for a candidate duly nominated and certified, but that provision was rejected, and, in the discussion that then and since has been had upon the question, it has been the almost unanimous opinion of the lawyers of the State that any law prescribing an official ballot which did not permit the voter to write or paste upon his ballot the name of any person for whom he desires to vote for any office to be filled at the election, whether named on the official ballot or not, would be in violation of the provision of the Constitution hereinbefore quoted.

Our conclusion, therefore, is that the votes cast for the relator were valid, and tha-t he was duly elected to the office of police justice of the village. We agree with Justice Dykman that the Special Term had no power to direct the trustees of the village to fix the salary of the office. "We have the power to modify the order, however (People ex rel. Hasbrouck v. The Supervisors, 135 N. Y. 535), and that part of it should be stricken out, and, so modified, it should be affirmed, without costs of appeal.

Cullen, J.:

I agree with the opinion of the- presiding justice that an interpretation of section 104 of the Election Law which would limit the right of voters to vote only for offices which may be named on the official ballot, or only for candidates who may have been put in nomination by the modes prescribed by that law, would render this provision of the section unconstitutional and void. The section is general and applicable to election for all offices. As to two classes of public offices it seems to me too clear for debate that the Legislature cannot deny the voter the right to vote nor can it make the qualifications pi,-escribed for candidates dependent on the action of election officials or nominating conventions.

By the Federal Constitution (§ 2, art. 1) :

“2. No person shall be a representative who shall not have attained to the age of twenty-five years, and been seven years a citizen of the United States, and who shall not, when elected, be an inhabitant of that State in which he shall be chosen.”

By section 4 of the same article:

• “ 1. The times, places and manner of holding elections for senators and representatives shall be prescribed in each State by the Legislature thereof; but the Congress may at any time, by law, make or alter such regulations, except as to the places of choosing senators.”

Congress has acted under this authority and prescribed the time of holding elections for representatives. How can the State deny the right of any qualified voter to vote at the time prescribed ? As to the qualifications of representatives though the constitutional provisions are wholly in the negative, still they are plainly meant to prescribe the only conditions of eligibility, and are exclusive. How can the State prescribe that the candidates must have been nominated by a certain number of voters for an appointed period before the election ? Such provisions would not relate merely to the manner of holding the election but would plainly be limitations on the eligibility of the candidate. He may not have moved into the State and become an inhabitant thereof until the day before election, and yet he would be constitutionally eligible for the office.

These considerations also apply to those officers which the Constitution of the State ordains shall be filled by election. At an early period under our present Constitution the question arose whether the election of a justice of the Supreme Court to fill a vacancy occurring after the notice given by the Secretary of State of the offices to be filled at the approaching election was valid. It was held that the election was valid, notwithstanding that no notice thereof had been given by the Secretary of State. (People ex rel. Davies v. Cowles, 13 N. Y. 350.) The authority of this case has never been questioned. In the Constitutional Convention of 1861 it was acknowledged as a correct exposition of the law, and to avoid any difficulty from lack of sufficient notice to the voters, the Constitution was amended so that vacancies in the judicial offices created by it are directed to be filled only at elections happening three months after the occurrence of the vacancy. But as to other elective offices of the Constitution the old rule' remains in force.

As to offices not constitutional, but created by the Legislature, the Legislature may prescribe qualifications for the incumbents of such offices. (People v. Platt, 117 N. Y. 159.) "We assume, however, that as to such offices the qualifications must bear some relation to the duties of the office, and be not merely arbitrary. The office here in dispute is a local office. By the Constitution it must be filled by election or appointment as the Legislature shall direct. Hnder this authority the Legislature determined that the office should be elective, and on that determination the office fell within the scope and terms of the constitutional provisions applicable to elections by the people.” (Matter of Gage, 141 N. Y. 112.) A scheme that would permit the town election officers or nominating conventions to determine whether the office should be filled or not would be neither providing for an election nor for an appointment, and it is only one of these two methods that the Legislature can adopt.

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

Dtkman, J.

(dissenting):

Under a republican form of government, such as ours, the fundamental principle is that all political power is vested in the people. In a general way it is said that the people are the sovereigns, but in strictness of language the aggregate collected will of the people is the sovereign authority. It follows, therefore, that every man has the right to participate in the exercise of the sovereign power by the exertion of the right to vote for representatives. That is the portion of political power belonging to every qualified elector.

But the people have placed limitations and restraints upon themselves in the exercise of the elective franchise. They have prescribed certain forms for the conduct of elections. They have declared that they themselves cannot vote without certain qualifications, nor except at specific times and places, and in a particular manner.

The controversy in this case has reference to the limitations placed upon the qualified electors by the late Election Law of this State. The facts in the case are these:

This is an appeal from an order made at the Special Term, granting a peremptory writ of mandamus against the president and trustees of the village of Wappingers Falls, commanding them to recognize the relator as police justice of that village, and to fix his salary as.such.

- The village of Wappingers Falls is incorporated under the general act for the incorporation of villages (Chap. 291, Laws of 1870), and section 17 of that act, as amended by chapter 688, Laws of 1871, provides that, “ The trustees * * * may, whenever in their opinion the public interest demands it, at any time not less than thirty days preceding the next annual election for village officers, direct that at such election, and at pvery fourth annual election thereafter, there shall' be elected a police justice, who shall be a resident of the village in which he shall be elected, and who shall hold office for four years.”

■ In 1890, in pursuance of that statute, the trustees passed a resolution that a police justice be elected in that village in the spring election of 1890, and every four years thereafter. A police justice was elected at that time who, shortly after his election, resigned his office, and there was no order for an election to fill the vacancy at the next election, and no police justice was ever elected or appointed thereafter.

In 1894 tlie trustees gave a notice of tlie election of tlie village officers, but did not specify the office of police justice among them.

The political parties nominated candidates, but no nomination was made for police justice by either of such parties, or by certificate. The official ballots were printed by the village clerk, and distributed in due time. No official ballot containing either the designation of the office of police justice as one to be voted for, or the name of any candidate therefor, was printed. When the votes were counted there appeared on forty-four of the regula» official ballots, by a paster slip, the following: For police justice, Edward W. Goring.” The question is whether tlie relator was duly elected to the office he claims, and that question must be determined by tlie General Election Law. Police justices in villages are elective officers. Both political and independent nominations for municipal offices must be filed with the clerk of tlie village. (Election Law, chap. 680, Laws of 1892, § 82.)

There must be as many official ballots as there are names represented upon the certificates filed. (§ 82.)

The scheme and policy of tlie Election Law, as applicable to this case, is to require official ballots for all elective offices to be voted for at the village election, to be furnished by the village clerk (§ 86), and no ballot except one bearing the official indorsement shall be counted. Every elector is, therefore, compelled to vote an official ballot if lie votes at all. After he enters tlie voting booth, and not before, nor elsewhere, “ the name of any person for whom the voter desires to vote for any office named on the official ballot, may be written on the official ballot which tlie voter proposes-to vote, or a paster containing one or more such names or offices may be pasted thereon; or a paster ballot containing the names of all the candidates for •whom the voter may vote for all such offices may be pasted thereon.” (§ 104.)

It thus appears that the voter is confined to writing or pasting the name of any person for whom he desires to vote to an office named in the official ballot. In other words, he can only vote for a person for an office designated upon the official ballot. This construction results from the application of the maxim eivpressio wnis ■est exolusio alterius. The thing expressed here as permissible is the ■writing or pasting upon tbe official ballot the name of any person for whom the voter desires to vote for an office named thereon. That provision implies the exclusion of other methods and inhibits, the voting for an office not named on the official ballot. The general argument that such a construction may disfranchise an elector or prevent the exercise of his volition is not forceful.

It is admitted b'y all that none but official ballots can be cast, and if there be no ballots for an office except in emergencies not presented in this case, it follows that no votes can be deposited therefor.

Such we deem to be the effect of the Election Law ; and as neither of the official ballots at the election where the relator claims he was elected contained the name of the office of police justice, it follows-that the votes cast for him were improperly counted and gave him. no right to the office.

We think, also, that the command of the writ was too broad. It. undertakes to command the trustees to fix the salary of the police justice, and our understanding of the statute in relation to the. compensation of such police justice is, that his fees are a charge-upon the village, and must be audited and allowed in the same manner as other village charges, unless such police justice shall be-allowed an annual salary fixed by the board of trustees, and they were empowered to fix and establish an annual salary to be paid to-the police justice by resolution to be entered in their minutes, which salary when so fixed was to be in lieu of fees to which the justice-might otherwise be entitled, and it left the alternative between the-two modes of compensation to the discretion and determination of the trustees, and it is beyond the province of the court to compel, the exercise of such election.

In other words, the court had no power to compel the trustees to-fix the salary of the police justice under the statute. The sole power to create a salary or let the compensation depend on the village charter, rested on the trustees.

The order appealed from should be reversed, with ten dollars costs and disbursements, and the motion for a mandamus denied, with ten dollars costs.

Order modified by striking out the provision requiring trustees to-fix the salary of the relator as police justice and as so modified affirmed, without costs.