author: Putnam, J.: Herrick, J.

text:
    HORACE J. ALLEN, Respondent, v. GEORGE W. SISSON and Another, Appellants.

      Bills and notes — when commissioners signing them are personally liable — omission of a statutory duty — a quasi corporation — implied powers — effect of a void statute upon personal liability.

    A board of commissioners, appointed by chapter 90 of the Laws of 1869 to improve the navigation of, and to maintain dams and reservoirs on, the Racket river, to be known as “Commissioners for Improvements on the Racket River,” were required to make an estimate of the cost of their improvements, which amount was to be collected from the property benefited, through a board of assessors, who were also appointed by the act to impose assessments which the commissioners were given power to collect.
    Several assessments were laid, but were not wholly collected, nor did the commissioners attempt to collect, by law, those unpaid, nor did they call upon the assessors to levy a further assessment, the statute giving to the commissioners no express power to call upon the assessors to levy a further assessment.
    This state of facts appeared upon the trial of an action brought by the assignee of a note, which read as follows:
    “ $846.82. Potsdam, June 24, 1882.
    • ‘ ‘ One day after date, for value received, we, as Commissioners of Racket River Reservoir, promise to pay to George Parker, or bearer, eight hundred and forty-six and dollars, with interest.
    “ Commissioners of “Racket Rimer “ Reserwir.

    Parker had performed services for the commissioners in relation to the improvement, and had received the note therefor, which he had assigned to Horace J. Allen, who sued the makers as individuals and recovered a judgment against them.
    Upon an appeal by the defendants from this judgment in favor of Allen for the amount due upon the note:
    Held, .that, notwithstanding the form of their signatures, which imported a personal liability, from the fact that they signed as ‘' Commissioners of Racket River Reservoir,” instead of “ Commissioners for Improvements on the Racket River,” it was doubtful whether the defendants were liable upon this ground.
    That as Parker had been employed by them, as commissioners, for work to be done under the act, and as they had intended to bind themselves only under the act, the title used by them in signing the note was simply a misnomer.
    That Parker had no means of collecting the note, except by an assessment made under the act; that the commissioners had an implied power to cause such assessment to be levied, and had failed to do so to Parker’s damage.
    That, although the act did not give them express power to cause an assessment to be made, yet it gave them power to establish dams and reservoirs and to make estimates, and it required the assessors to make an assessment before the work was done.
    That these provisions gave the commissioners an implied power to lay the estimate before the assessors, and to require the latter to assess.
    That they were personally liable foi their failure as commissioners, to perform a duty, the neglect of which caused a direct injury to Parker and his assignee, (Herrick, J., dubitans.)
    That the act did not constitute the commissioners a corporation in the strict sense; that, at most, they were a quasi corporation, but, even as such, they were liable for an omission of duty.
    That section 8 of chapter 483 of the Laws of 1873. did not repeal section 7 of chapter 90 of the Laws of 1869, but was only intended to give the assessors power to make separate assessments.
    That as the act permitted the commissioners to use money collected under an assessment to pay any just claim, there was no force in the defense that no assessment had been laid to pay Parker’s claim, and that he had no interest in the other assessments
    That if,, as the defendants claimed, the act of 1869 was unconstitutional, then the defendants were personally liable, because they never were commissioners, and in that viewhad, as individuals, employed Parker, and had not paid him.
    Appeal by the defendants, Iienry "Watkins and George W. Sissons, from a judgment of the Supreme Court, entered in the office of the clerk of the county of St. Lawrence on the 'Ith day of March, 1889, upon a recovery by the plaintiff of $1,186.55 damages and $143.80 costs, after a trial before the court at the St. Lawrence Circuit, a jury trial having been waived.
    Henry Watkins, one of the original defendants, having died, the action was duly revived against Henry A. Watkins, as administrator of his estate.

      John A. Vance, for the appellants.

      IS. S. JVeary, for the respondent.
   Putnam, J.:

This action is brought upon a note, of which the following is a copy:

“ $846.32.
Potsdam, June 24, 1882.
One day after date, for value received, we, as Commissioners of Racket River Reservoir, promise to pay to George Parker, or bearer, eight hundred and forty-six and Ts/g- dollars, with interest.

Swan, one of the makers, having died, the survivors were made defendants. By chapter 90 of the Laws of 1869 a board of commissioners were appointed for the purpose of improving the navigation of the Racket river and the hydraulic power thereof, to be termed “ Commissioners for Improvements on the Racket River.” One George Parker performed services for said commissioners in improving the navigation of said river, and they executed the note in suit therefor. Said Parker transferred the note to plaintiff.

The commissioners by said act were empowered to make dams and establish and maintain reservoirs on Racket river, and they were required to make an estimate of and determine the probable cost of such improvements, and the expenses therefor were to be assessed arid collected as provided in section 7 of the act. Section 7 provided for the appointment of a board of assessors who shall make a schedule and description of the several lots that should be assessed as provided in the act, and that they shall assess on the property benefited the sum of $5,000,,the first year, and thereafter, from time to time, such sums as shall be necessary. After the assessments are completed the assessors shall certify the same, furnishing a detailed statement thereof to such commissioners. The act gives the latter the right of action to collect such assessments.

The court below found that seven assessments were made by the assessors under said act, from and including 1872 up to and including 1879, amounting, in all, to $42,000, and that some part of such assessments remain uncollected. That the commissioners had failed to take legal measures to effect such collection and had not ordered any new assessment since the giving of said note. That the assessors had been ready and willing at all times to make any necessary assessment when required to do so by the commissioners.

Defendants, having signed their proper names to the note in suit, are prima fade liable personally. (Brookway v. Allen, 17 Wend., 40.)

This is especially so in this case because it is provided in chapter 90 of the Laws of 1869, that the commissioners appointed thereunder shall be termed “ Commissioners for Improvements on the Racket River,” while in the note in suit defendants are designated as “Commissioners of Racket River Reservoir.” They do not appear, therefore, to have executed the note as commissioners under the act in question.

I am not prepared to liold, however, it being shown, by defendants that Parker was, in fact, employed by them as commissioners, under the act in question, in the performance of labor authorized by such act, and that the note was intended to be given by defendants therefor as such commissioners, but by mistake there was a misnomer of their title — -that the defendants could ordinarily be held personally liable. (Brockway v. Allen, 17 Wend., 40; Bank of Genesee v. Patchin Bank, 19 N. Y. 315.)

The evidence in the case does show that Parker was employed by defendants, as commissioners, under the act in question, to perform labor authorized thereby, and hence it is doubtful if the defendants could be held personally liable unless they were guilty of negligence or misconduct, as found by the trial judge, in omitting to call upon the assessors under the act to make an assessment to pay the note in suit, and in failing to collect the assessments already made.

The- law is well settled that public officers charged with a ministerial duty are answerable in damages to anyone specially injured by their neglect or omission to perform the duties of their offices. (Piercy v. Averill, 37 Hun, 366 and cases cited; Bennett v. Whitney, 94 N. Y., 302.)

I will assume that in the first instance defendants were not personally liable on the note, and only liable a commissioners. If they had any duty to perform in the way of calling on the assessors to make an assessment, or to collect assessments made, and failed to perform such duty, such failure was a direct injury to plaintiff or his assignor. He had no means of collecting his claim except by an assessment under the act. The defendants failing to cause such an assessment to be made, prevented the payment of his claim. Therefore, under the authorities cited, defendants, if bound to cause an assessment to be made, or to collect those already made, are, for the omission to do so, liable personally.

Defendants insist that said chapter 90 of the Laws of 1869 created a corporation, and the negligence, if any, shown in the case, was, therefore, a corporate negligence, and not that of defendants personally, and hence the defendants are not personally liable. (Bassett v. Fish, 75 N. Y., 303.)

I am unable to perceive that the act in question created a corporation properly so called, although it is possible that its effect was to make the commissioners a quasi corporation, the same as supervisors, trustees of school districts, etc. (See 2 Kent, 278.)

The corporation referred to in the case of Bassett v. Fish, cited by defendants, was formed under chapter 555 of the Laws of 1864, and was a corporation propererly so called, and the distinction between such a corporation and a quasi corporation is clearly stated in that case. But if chapter 90, Laws of 1869, did create a quasi corporation the commissioners under the act in question are public officers, and liable for an omission to perform their duties under the act within Piercy v. Averill {supra), and kindred cases.

It is claimed by defendants that under chapter 90 {supra) they, as commissioners, had no right or power, and it was not their duty to cause an assessment to be made by the assessors. It is true the act does not, in terms, give them power to cause the making of an assessment, but it confers on them power to establish and maintain dams and reservoirs. It provides that they shall make an estimate of the probable cost of making said improvements and the board of assessors shall make an assessment therefor before the worh is done. The board of commissioners, therefore, under the act, are authorized to construct, establish and maintain dams and reservoirs. I think that on making the estimate of the amount required to be assessed in any year to do the required work they had the power to lay such estimate before the board of assessors and to require the latter to make an assessment. In no other way could the assessors know the amount necessary. In no other way can the law be carried out. It is a-well-settled principle that statutes containing grants of power must be construed so as to include the authority to do all things necessary to make the object of the grant effectual, and to enable the donor of the power to accomplish the express purposes of the act. (Mayor, etc., of New York v. Sands, 105 N. Y., 211; People evo rel. Ostrander et al. v. Chapin, 105 id., 309.)

Here the commissioners were authorized to erect and maintain dams and reservoirs. Before doing so they must estimate the expense and the assessors must assess the amount. Can it be doubted that the commissioners had the power to lay before the assessors their said estimate and call upon them to make an assessment? Such a right is necessary to make effectual the power conferred upon them to make’and maintain reservoirs, and hence is inferred. Having the power it will not be doubted it was the duty of the commissioners to ask for an assessment in order that they might carry out the work devolved upon them.

The court below was, therefore, justified in its conclusion, that defendants failing to require' an assessment to pay the claim in suit, were personally liable. I have examined section 3, chapter 432 of the Laws" of 1812, to which our attention is called by counsel for defendants, and find some difficulty in construing it. I do not think, however, it was intended by said section to repeal section 1 of the original act. I am inclined to think it was intended by section 3 (supra) to give power to the assessors to make different and separate assessments when called upon to raise any sum under the act.

The court below also finds that defendants had failed to collect assessments made. I think the omission of defendants to so collect the same was a negligent act, injurious to plaintiff, and rendering; them personally liable.

Counsel for defendants claim that it is not shown that any assessment was made to pay Parker’s claim, and hence it does not appear that he had any interest in any assessments made. Under the act the commissioners had the right to receive and collect all assessments. They are not restricted as to the use of assessments collected. In other words money received by them under cony assessment may be applied to the payment of cmyjtcst claim. The assessments already made, if collected, could, under the act, be legally applied upon the note in suit. Hence the above position is not well taken.

Defendants also claim that the act in question was unconstitutional, and hence defendants were under no obligation to enforce its provisions. I do not deem it necessary to discuss the constitutionality of the law. If, in fact unconstitutional, undoubtedly defendants, were not compelled to act under it. But they acted under the law and employed plaintiff’s assignor, and having done so can they avoid paying him the value of the services, evidenced by the note in suit, on the ground that the statute in question is not constitutional ?

It is held that an unconstitutional act is no law; it confers no rights; imposes no duties; affords no protection; it is as inoperative as if never passed. (Norton v. Shelby County, 118 U. S., 426.)

As we have seen, defendants employed Parker and gave him the note in suit for tlie value oí his services. That primo, facie they are personally liable, although they signed the note as “ Commissioners of Backet Biver Eeservoir.” But defendants contest the claim on the ground that they, in fact, executed the note for work done for them as “ Commissioners for Improvements on the Backet Biver,” under a law passed by the legislature of the State of New York. If the law is unconstitutional, as claimed, there was, in fact, no law. Defendants were not commissioners. They have no defense to the action. Having employed Parker and received the benefit of his labor, they must pay him.

There are other questions raised in the case I do not think it necessary to discuss.

The judgment should be affirmed, with costs.

Mayi-iam, P. J., concurred.

Herrick, J.

(dissenting):

The defendants gave the note as public officers; it could only be paid by moneys raised by assessment; other officers over whom they had no control were to make such assessments. I am in doubt, under the case of Tone v. Mayor (70 N. Y., 157), whether it was their duty to compel such assessors to act, and whether a failure to compel them to act makes them guilty of negligence, and hence personally liable upon the note.

Judgment affirmed, with costs.


source: Caselaw Access Project

author: Herrick, J.: Putnam, J.:

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. THE DAVIS-COLBY ORE ROASTER COMPANY, Relator, v. FRANK CAMPBELL, Comptroller of the State of New York, Defendant.

      Taxation — upon a franchise or business — a domestic corporation operating outside of the State — basis of the assessment against it.

    A domestic corporation, incorporated under chapter 40 of the .Laws of 1848, stated, in its certificate of incorporation, that its principal place of business was to he in New York city and county, and that its operations were to he carried on there, and in such other places within and without the Ptate, as its interests might determine.

      In 1891 it moved its office for the transaction of business to Pennsylvania. In that year it did nothing within the State of New York, and carried on all its operations in Pennsylvania, although it had a bank account in a banking-house in New York city.

      Held, that the tax upon its corporate franchise or business, imposed by chapter 542 of the Laws of 1880, and the acts amendatory thereof, could be levied only upon the amount of its bank account, as the rest of its capital was employed outside of this Slate.
    Certiorari to review tlie proceedings and decision of the defendant Franlc Campbell, as comptroller of the State of New York, in assessing, as alleged, illegally, the Davis-Colby Ore Roaster Company for State taxes for the year ending November 1, 1891.

      B. Burnham Moffat, for the relator.

      Simon W. Bosenclale, attorney-general, for the defendant.
   Herrick, J.:

The relator is a corporation duly incorporated under the laws of the State of New York for the year ISIS, chapter 40; its certificate of incorporation stated that its principal place of business was to remain in the city and county of New York, and that the operations of the company were to be carried on in the city and county of New York, and in such other places within and without the State of New York'as the best interests* of the, company might thereafter determine.

It was thus a domestic corporation and was liable to pay a tax upon its franchise and business, to be measured by the amount of ts capital stock found to be employed in this State. (People ex rel. A. C. and D. Co. v. Wemple, 129 N. Y., 558-562.) During the year 1891 it moved its office for the transaction of business to the State of Pennsylvania. It made no sales within the State of New York during that year; it manufactured nothing within the State; it occupied no premises, paid no rent, employed no men within the State during the year. It did no business inside of the State of New York during that time. It manufactured ore roasters, kept a bank account and employed servants and paid them outside of the State; and business done outside of the State in that way constitutes no part of the capital stock employed within the State. (People ex rel. S. T. C. Co. v. Wemple, 133 N. Y., 323-328.)

Tlie same thing, if done within the State by a corporation incorporated in some other State, would have constituted doing business within this State, and upon which such foreign corporation could have been taxed by this State. (People ex rel. S. C. O. Co. v. Wemple, 131 N. Y., 64; People v. Horn Silver Mining Co., 105 id., 76.)

If, then, a portion of the capital stock was employed without the State of New York, certainly all of it could not have been employed within the State of New York, and yet the defendant has assessed the relator upon the full amount of its capital stock; this, I think, was error.

A portion of the capital stock being employed elsewhere, it could not be taxed as employed within this State.

It seems to me that, in determining the amount of capital stock employed in this State, the same principle applies to a domestic as to a foreign corporation. If a corporation has no property and no business within the State, then there is no basis upon which to compute the. tax. (People ex rel. S. T. C. Co. v. Wemple, 133 N. Y., 323-329.)

There must oe some property or business done within the State to justify a tax, and there must be some evidence to show how much capital is employed, and if there is such evidence the court will hesitate to disturb the finding of the comptroller; but that determination must be supported by some evidence, it must not be a purely arbitrary determination. Having seen that the determination of the Comptroller in taxing the entire capital stock of the relator was wrong, we must then see what evidence there is by which we can determine how much it should be taxed.

The evidence discloses no business done within this State, and the only property disclosed is the sum of $1,391.68 in money, deposited with a banking house in the city of New York. The amount in bank was held a proper basis for determining the tax in People ex rel. A. C. and D. Co. v. Wemple (129 N. Y., 558). How that money or any portion of it was paid out, or for what purpose, perhaps is of no consequence; whether any portion of it was used to pay past-due dividends, I do not think can be considered here as the case stands. The amount in the bank seems to be the only property that can be used as a basis to determine the amount of the tax, and the tax upon that would be the sum of seven dollars and sixty-five cents.

The determination of the comptroller should be reversed, the tax upon the relator fixed at the sum of seven dollars and sixty-five cents, with fifty dollars costs and printing and other disbursements to the relator.

Mayham, P. J., concurred.

Putnam, J.:

I concur in the conclusion reached in foregoing opinion generally, but am not clear that relator might not be taxed for the two months of the fiscal year that the office was in the city of New York. (See People ex rel. Edison Electric-Light Co. v. Wemple, 18 N. Y. Supp., 511.)

Determination of the comptroller reversed, the tax upon relator fixed at the sum of seven dollars and sixty-five cents, with fifty •dollars costs and printing and other disbursements to the relator.


author: Herrick, J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. ALBERT SPENCER, Appellant.

      Crimes — indictment of a witness for the people by the same grand juiy before which, he has testified — immunity afforded him by Penal Code, section 79.
    Albert Spencer was subpoenaed before a grand jury to testify to his having given money to the police commissioners of Saratoga Springs to induce them to permit him to keep a gambling-house, and upon his testimony, and that of other persons, the commissioners were indicted for bribery. A few days later the same grand jury indicted Spencer for keeping a gambling-house, and upon the trial of such indictment he was convicted of a misdemeanor.
    Upon an appeal taken by him from the judgment of conviction:

      Held, that, under section 79 of the Penal Code, which, while making an offender a competent witness, provides that the testimony shall not bo used in any prosecution, civil or criminal, against the person so testifying, the conviction was improper.
    That the fact that the indictment was found a few days after he had testified, and after the commissioners were indicted, did not alter the rule.
    Appeal by tbe defendant Albert Spencer from a judgment of the Court of Sessions of Saratoga county, entered in tbe office of tbe clerk of Saratoga county on the 26th day of May, 1892, convicting him of the misdemeanor of keeping a room to be used for gambling, with notice of an intention to bring up for review upon the appeal an order of the said court denying a motion to quash the indictment.

      G. S. dc C. G. Lester, for the appellant.

      T. F. Hamilton, district attorney, for the respondent.
   Herrick, J.:

The defendant was subpoenaed before the grand jury to testify as to his having given money to the police commissioners of the village of Saratoga Springs to be permitted to keep a gambling-house, and upon his testimony, with that of others, such commissioners were indicted for bribery, his testimony showing that he had paid them money for such purpose.

A few days after, the same grand jury indicted the defendant for keeping a gambling-house.

Having used the defendant as a witness, his testimony could not be used against him. (Penal Code, § 79.) Here the same grand jury who heard his testimony found the indictment against him. The fact that it was found a few days after he was sworn, and after the charge upon which he was sworn was acted upon, it seems tome makes no difference. If it had been the testimony of another witness they would have had the right to consider it, although he was not res.wom or his testimony read in the second case, and the jury could not very well dismiss from their minds his testimony given in the first case in their consideration of the second one.

"When a witness is used under such circumstances the utmost good faith should be observed in dealing with him, and the spirit, as well as the letter of the law, should be regarded; here, it seems, to me, both were violated. How much the grand jury was influenced by his testimony cannot be ascertained, neither does it make any difference.

The case seems to me plainly within the principle enunciated in People v. Singer (18 Abb. N. C., 96); People v. Briggs (60 How. Pr., 17.); People v. Clark (14 N. Y. Supp., 642); People v. Brickner (15 id., 528); Counselman v. Hitchcock (142 U. S. S. Ct. Rep., 547); People v. Clements (5 N. Y. Crim. Rep., 298). And it was a violation of the immunity granted to a witness bv section 79 of the Penal Code.

The judgment of conviction should -be reversed and the indictment dismissed.

Mayham, P. J., and Putnam, J., concurred.

Judgment of conviction reversed and the indictment dismissed.


author: Mayham, P. J.:

text:
    In the Matter of the Accounting of EDWARD J. MAXWELL, as Assignee for the Benefit of Creditors of JOHN REDDISH.

      Assignment for the benefit of creditors — legal services rendered by the assignee and his firm — compensation — costs — retainer of am, attorney.

    Upon an accounting of an assignee for the benefit of creditors it appeared that he was a lawyer, and a member of a firm of lawyers; that, in proceedings taken by a bank, which was intei-ested as a creditor of the. estate, to remove him from his trust, the assignee employed his firm to defend him, and rendered services himself; that, in other matters relating to the assigned estate, both he and his firm rendered services, some of which appeared to be of considerable value.
    Upon an application by the asgjgnee to be allowed compensation for these services-.

      Held, that this could not be done, and that he was only entitled to commissions.
    That it was contrary to the policy of the law to allow an assignee to deal with the assigned estate; that it made no difference how valuable the services were, and that he could not recover for legal services which he rendered in person or by his firm.
    The hank failed in its attempt to remove the assignee.

      Held, that, if the bank was to be charged with costs, the matter should have been adjusted in the proceeding for removal, and that costs could not be allowed against the bank upon the final accounting of the assignee.
    It appeared that the County (lourt allowed the assignee $500 as costs of his final accounting, and to this the hank objected, although it was alleged that the hank had consented to the allowance, and it was so found.

      Held, that if it had so consented it was bound by such consent.
    That, in the absence of fraud or collusion, where an attorney appears in open court or by proper notice of retainer, he is deemed to represent his client, and the latter is hound by bis acts performed in the regular line of bis duty.
    Appeal by tbe Eirst National Bank of Amsterdam, a creditor of Jobn Reddish, from so much of a decree and judgment of the Montgomery County Court, entered in the office of the clerk of said county on the 19th day of October, 1891, as allowed Edward J. Maxwell, an assignee of John Reddish, $500 as costs of his accounting as such assignee; and also an appeal by said Edward J. Maxwell, as such assignee, from so much of said decree and judgment as adjudged and decreed that said assignee be charged upon the said accounting with the sum of $4,757.39, and directed said assignee to distribute the sum of $2,496.69, as specified in said decree, as follows, viz.: To Daniel M. Reddish, the sum of $291.10 j the Eirst National Bank of Amsterdam, the sum of $967.02; Henry E. Reddish, the sum of $309.89; also from so much of said decree and judgment as confirmed the reports of H. L. Huston, the referee appointed to take and state the account herein.

      Edward J. Maxwell and R. A. Parmenter, for the assignee appellant.

      Z. 8. Westbrook, for the Eirst National Bank of Amsterdam, appellant.
   Mayham, P. J.:

The principal questions in controversy on the appeal arise out of the decree of the County Court on the accounting, of the assignee, who failed to charge himself in the account filed with certain items of wool and a buggy embraced in the inventory filed by the assignee.

The inventory price of this wool was $1,101.34, and the inventory price of the buggy was seventy dollars. The account, as filed, was objected to by the Eirst National Bank of Amsterdam, a creditor of the assignor, having an interest in the assigned estate, and the assignee’s account was surcharged by the bank with the amount of these items embraced in the inventory.

The assignee in his accounts filed, credited himself and charged the assigned estate with certain services, disbursements and counsel fees paid for legal services of counsel employed by him, and rendered by him and his law partner in various litigations in which he, as assignee, had been involved in the administration of his trust, which were objected to by the First National Bank of Amsterdam; and a referee was appointed by the court to take and state the accounts of the assignee and report to the County Court.

The case discloses that hearings were had and proofs taken before the referee, upon which he made his report to the County Court, with the proofs taken by him, and the report, as amended, was by that court in all things confirmed, and the decree from which this •appeal is taken was based upon such report and is in all things comformable thereto.

The referee, by his report, charged the assignee with the wool and buggy as charged in the inventory, but deducted from the inventory price of the wool the sum of $348, being the amount of possible loss on the Philadelphia wool.

The referee rejected all of the assignee’s claims for professional services in the various litigations connected with his trust, and also the professional services of the law firm of which he was a member, except a charge of $500 for services in preparing and making his final accounts before the County Court, and the assignee excepted to the decision of the referee in rejecting such claim for services, and the contestant, the bank, excepts to the allowance of the $500 on the accounting.

There were some other items of account charged against the assignee, to which he excepted, but we think that there was sufficient evidence before the referee to uphold his report in reference to such items, so that the principal cprestions left for consideration on this appeal by the assignee is whether the items of counsel fees and legal services rendered by the assignee, and the assignee and his partner, as attorney and counselor in the various litigations in which he was involved as assignee, were properly rejected by the referee and excluded by the court in making the decree.

The referee does not find the assignee guilty of bad faith in incurring these legal expenses, but assumes that if he acted in good faith he was guilty of grave errors of judgment. The referee, upon the theory that the assignee acted in good faith, allowed him credit for all disbursements in these litigations, for which vouchers or satisfactory proofs are furnished, but rejects all charges for professional services performed, either by the assignee or the assignee and his partner.

The rule has long been'settled, both in England and this country, that while a trustee may, for necessary services, employ clerks, agents and attorneys in the necessary management of his trust estate, he cannot perform such outside services and be compensated for them out of the trust estate; and this rule seems to be founded upon a sound principle of public policy of removing from the trustees all temptation for involving the trust estate in conrplication or controversy with the purpose of increasing the trustee’s compensation.

There is great force in the contention of the assignee that some of these services were rendered in successfully defending himself .from a proceeding for his removal, instituted and conducted by the bank, as a creditor of the assigned estate, which it was the duty of the assignee to resist, and there is little doubt but that if these professional services had been rendered by an attorney employed by the assignee and not by himself and partner, he could have paid them out of the assigned estate a reasonable compensation which could have been credited to him on his accounts, and the same may be said of some of the other litigations in which he was involved, in his efforts to.marshal and to protect the assets of the assigned estate.

But he cannot, for that purpose, employ himself either as an individual or firm and charge such services against the estate. Such authority, if provided for in the assignment, would render it fraudulent and void. (Nichols v. McEwen, 17 N. Y., 22.) In this case the court say, in speaking of the commissions as compensation of an assignee : “ They (commissions) are permitted in deference only to the analogies of the statutes on the subject of executors, guardians, committees and official assignees. * * * But even in those cases no assignee, even if he be a lawyer, is ever allowed his expenses, costs, charges and commissions, together with a reasonable counsel fee.” In Campbell v. Woodworth (24 N. Y., 306) the court say: “ The compensation or commission which the law allows, is for the labor, time, services and attention of the assignees actually done, spent, given and bestowed in and about the business of the trust created. It is for the performance of these services that the law has fixed a certain rate of compensation, which is denominated as commissions, and has adjudged that such rate of compensation is just and reasonable in all - cases.”

In the Matter of the Bank of Niagara (6 Paige, 215) the chancellor uses this language: “ The employment of counsel and the payment of a proper allowance for such, services, wlien necessary, requires the exercise of sound discretion on the part of the receivers or the trustee of the fund, out of which such services are to be paid. It would, therefore, be as unsafe to allow a receiver .or trustee to contract with and pay himself for such extra services as it would be to allow him to become the purchaser of trust property, which it is Ins duty to sell to the best advantage for the benefit of the estate. * * * No allowance for extra counsel fees to himself can, therefore, be made to a receiver or other trustee upon the settlement of his accounts.”

These cases were commented on and approved in Collier v. Munn, (41 N. Y., 143), and the doctrine was again repeated, that an executor or trustee cannot receive from the estate any greater compensation than the statute commissions for his own services, however meritorious or extraordinary they may be.

This case arose when an executor, who was an attorney, at the instance of the co-executor, and the legatee of the personal and devisee of the real estate soliciting him, defended an actio*n of ejectment prosecuted to recover real estate, claimed as a part of the property of the testator, and the co-executors and devisees agreed to pay him for such services, and the court, in concluding its opinion in this case, uses this language:

u With the unreasonableness of the resistance to this claim of the appellant, which, in this ease, is for valuable service rendered in good faith, far beyond what his duties as executor required, or with the eminent propriety óf payment by the adult legatees for a service from which they have apparently derived so considerable a benefit, we cannot deal.”

Within this rule we are not to speculate whether or not the trust estate was benefited by those professional services, as it would seem ^iat within these decisions we have no duty left except to obey the rule of law to which we have referred

Nor do we see how, upon this appeal, we can charge the expense of the unsuccessful effort of the bank to remove the assignee upon the respondent. The cost of that proceeding ought to have been fixed, as they probably were by the order denying their application for the removal of the assignee, and if not satisfactorily disposed of by that order, it could have been reviewed on an appeal from it.

Many other questions are raised on this appeal, but we see no error against the appellant on this appeal for which this decree can be reversed. The remaining question is as to the appeal taken by the bank from that part of the amended decree allowing the assignee $500 as costs and allowance on Ins final accounting.

The amended decree recites that that allowance was consented to by one of the counsel for the bank.

IJpon the motion for such amendment of the decree, the question as to whether or not such consent was made is controverted by opposing affidavits, and without undertaking to pass upon the weight of evidence before the county judge upon that disputed question of fact, we are not inclined to reverse the finding of the learned county jpdge upon that question.

But it is insisted by the appellant on this motion, that if such consent was given it did not bind the bank. We cannot agree with this contention. The court must repose confidence in the authority assumed to be exercised by the attorneys, who are its officers. And when an attorney duly appears in open court or by a proper notice of retainer in the absence of fraud or collusion, he must be deemed as representing his client, who must be bound by his acts in the regular line of his duty. (Palen, as Guardian, v. Starr, 7 Hun, 423-425.)

In that case she (defendant) admitted that a summons was duly served upon her, that she employed an attorney to appear for her. She now denies any specific authority to her attorney to allow such judgment to be taken against her. But this is of no consequence since the attorney has general power.

The county judge having found and recited in the order the consent of the attorney for the bank under it, we think he had authority to make the allowance.

The decree should be affirmed, with costs on the assignee’s appeal^ and the order amending the decree, from which the First National Bank of Amsterdam appeals, should be affirmed, with ten dollars costs and printing disbursements against said bank.

Orders may be entered in accordance with this determination.

Putnam and Herrick, JJ., concurred.

Decreee affirmed, with costs, and order amending decree affirmed, with ten dollars costs and printing disbursements.


text:
    EUGENE C. GRANTIER, as Executor of MARGARET GRANTIER, Respondent, v. GEORGE AUSTIN, Appellant.

      Heed — breach of a, covenant of quiet enjoyment — ejectment — recoupment — notice — measure of damages — evidence.

    Margaret Grantier united with others in a deed of certain premises, which contained a warranty of peaceable possession, to George Austin, who paid a part of the consideration to her by notes. In an action of ejectment brought against Austin he was subsequently ousted from a part of the premises.
    Upon an appeal by Austin from a judgment recovered by the executor of Margaret Grantier upon the notes given by Austin to her:
    Held, that Austin was entitled to recoup the value of that part of the premises which he had lost in the action in ejectment, and also his costs and expenses of its defense.
    That it was error to exclude the judgment-roll in that action.
    That if Margaret Grantier had had notice of the action she would have been concluded by the judgment therein, but that, without notice to her, such judgment was prima facie evidence against her, and imposed upon her the duty of showing that there was no failure in her title and that there ivas a defense to that action. That it was proper for Austin to prove the ejectment, the premises he was ejected from, the value of the land and his costs and expenses in defending the action of ejectment.
    That where a party has been" evicted from a portion of premises, which is capable of being definitely ascertained, the measure of damages is the ratio which the value of that portion bears to the whole price, together with the costs and expenses of defending the ejectment action.
    That Austin should have been allowed to prove by a surveyor that the land described in the judgment in ejectment was a portion of that deeded by Margaret Grantier to Austin.
    Appeal by tbe defendant George Austin from a judgment of tbe Supreme Court, entered in the office of tbe clerk of tbe county of Montgomery on tbe 10th day of February, 1892, upon a verdict for the plaintiff directed by tbe court for $1,087.08, after a trial at tbe Montgomery Circuit before tbe court and a jury; and also from an order of said court, entered in said clerk’s office on tbe 4th day of February, 1892, granting an extra allowance.

      Albert O. Tennant, for tbe appellant.

      8. W. Putnam, for tbe respondent.
   Herrick, J.:

The plaintiffs testatrix united with others in giving to the defendant a deed of certain real estate, the grantors covenanting that they were the owners and well seized of the same, and that they would warrant and defend the same in the quiet and peaceable possession of the defendant against any person claiming the same or any part thereof; the defendant paid for such premises parti}' in cash, by the assumption of some existing mortgages thereon, and by two notes for the balance given by him directly to the plaintiffs testatrix. The defendant entered into possession of the premises.

Sometime thereafter an action in ejectment was commenced against the defendant to recover from his possession a portion of such premises, and a few days after the commencement of such action the same grantors'who had given the first deed executed and delivered another deed to the defendant, which recited that it was given in the place and stead of the first deed, “ which did not properly describe the premises thereby and hereby intended to be conveyed ; ” the deed contained the same covenants of warranty as the first deed.

■ The defendant claims to have given the plaintiffs testatrix, who was one of the grantors, and all the other grantors, except the plaintiffs testati’ix, notice of the suit in ejectment. The action in ejectment resulted in favor of the plaintiff therein, and the defendant was ousted from the possession of a part of the premises alleged to have been conveyed to him by such grantors.

Thereafter the plaintiff commenced action upon the notes given by the. defendant to plaintiff’s testatrix in her lifetime in part payment of the purchase-price of said real estate.

The defendant, admitting the execution and delivery of the notes and their non-payment, set up the facts herein recited in his answer, and asked to recoup or deduct from the amount of the notes the value of that portion of the premises which had been taken from him in the action of ejectment, together with his costs and expenses in defending such action, and offered to allow the plaintiff to take judgment for the balance.

Upon the trial the court excluded the judgment-roll in the action •of ejectment; excluded evidence as to the money paid by the defendant on the judgment recovered against him in such ejectment action; excluded evidence tending to show the value of the land taken from the defendant in such action, and also evidence tending to prove that the land covered and taken in said action of ejectment was a portion of the land described in the deeds heretofore referred to, and finally directed a verdict for the full amount of the notes. I think the defendant was entitled to recoup or counter-claim from the defendant upon such notes the damages which he had sustained by being dispossessed of the land conveyed to him. (Gillespie v. Torrance, 25 N. Y,, 306; McKnight v. Devlin, 52 id., 399.)

The plaintiff’s testatrix had personally covenanted for its quiet possession and enjoyment; had personally warranted the title, and the notes were a part of the purchase-price of the premises and., of the consideration for such covenants and warranty.

It seems to me that the court erred in excluding the judgment-roll in the action of ejectment; if the plaintiff’s testatrix had had notice of the action it would, in the absence of fraud or collusion, have been conclusive; without notice it is prima facie evidence, and imposes upon the plaintiff the burden of showing that there was a defense to the action, and that there was no failure of title. And is competent to prove defendant’s eviction, and what premises he had been evicted from. (Comstock v. Drohan, 8 Hun, 373; affirmed in 71 N. Y., 9; Taylor v. Barnes, 69 id., 430; Konitzky v. Meyer, 49 id., 571; Bridgeport, etc., Fire Ins. Co. v. Wood, 34 id., 275; Adams v. Canover, 87 id., 422.)

The court also erred, I think, in excluding evidence of the value of the land from which the defendant was evicted by the judgment in ejectment, and it was also competent for the defendant to prove the amount of costs and expenses he had paid or been subjected to in defending said action. Where a party has been evicted from a portion of the premises capable of definite ascertainment, the measure of damages is the ratio which the value of the premises taken bears to the purchase-price of- the whole, together with the costs and expenses of defending the action. (Hymes v. Esty et al., 133 N. Y., 342, 347; Staats v. Executors of Ten Eyck, 3 Caines, 111.)

The last case cited was approved in Corcoran v. Judson (24 N. Y., 106), and is, I believe, the settled law in this State.

It seems to me also that it was perfectly competent and proper for the defendant to prove, by a surveyor, that the land described in the judgment in ejectment was a portion of the same premises described in the deed given by plaintiff’s testatrix to the defendant, and that the court erred in excluding testimony tending to prove that such was the case.

For these reasons the judgment should be reversed and a new trial ordered, costs to abide the event.

Mayham, P. J., and Putnam, J., concurred.

Judgment reversed and a new trial ordered, costs to abide event.


author: Putnam, J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. THE TROY AND LANSINGBURGH RAILROAD COMPANY, Plaintiff, v. JAMES W. COFFEY, City Comptroller, and Others, Constituting the Board of Local Assessors of the City of Troy, Defendants.

      Assessment — a license to a corporation under which it assumes a liability to pave a street — how the liability must be enforced, — notice—performance within a reasonable time — estoppel.

    In 1867 the city of Troy passed an ordinance granting to a horse railroad company-permission to lay its tracks in certain streets of that city, and as a condition required the company to pave the space between its rails, and for eighteen inches, outside of them, so as to conform to such style of paving as the common council might order, and provided that, on the failure of the company to do any act required by the ordinance, the work might be done by the city, that by its acceptance of the ordinance the company agreed to pay any expense incurred by the city in the execution of such work, and that such expense might be collected by the city by suit.
    The company accepted the ordinance and laid its tracks in the streets designated therein.
    In 1889 the city ordered one of the streets so designated to be paved with granite-blocks and a new curb-stone to be laid, the work to be done in ten days, and in default thereof that the work be done by the city and the expense be apportioned upon the property benefited as directed by law. The notice given was-not directed' to the company, but was directed to owners of property on the street, and stated that the expense would be charged upon the property benefited. The work could not be done in ten days, and subsequently the city did the work. The local assessors assessed about one-third of the cost upon the city, one-third upon the property benefited and one-third upon the railroad, which 'latter was the actual cost of paving between its tracks, and eighteen inches outside thereof.
    The city charter, as it stood in 1889, provided that the city might order a street to be paved and a new curb-stone to be set, one-half of the expense to be paid by the city at large and the other half by the property benefited.
    Upon the hearing on the return to a writ of certiorari, issued upon the petition of the railroad to review the action of the assessors, the court assumed that by accepting the ordinance of 1867 a valid contract was created between the railroad and the city, but

      Held, that the method of assessment was erroneous.
    That the city had evidently intended to proceed under the charter of 1889 and not under the ordinance of 1867.
    That if it intended to proceed under the ordinance it was its duty to give notice to the company of what it required, to demand performance and to allow the company a reasonable time within which to perform the work.
    That, under the charter, the proper method of assessment would have been to assess one-half of the expense upon the city and the other half upon the property benefited, including therein the company’s property.
    That the city was not authorized by the ordinance to make the assessment, as its; remedy for the recovery of the expenses incurred in the execution of the work was by action, as presciibed by the ordinance.
    That as the company had had no notice that the city was proceeding under the ordinance, it was not estopped from questioning the assessment by the fact that, it had not objected to the work and had taken an active part in the work. (Herrick, J., dissenting.) '
    Certiorari to review tbe proceedings of James ~W. Coffey, City Comptroller, John F. Bridgman, City Chamberlain, and Charles L. Fuller, City Engineer, comprising the board of local assessors of the city of Troy, in regard to an assessment for paving a part of River street, Troy, by which assessment the Troy and Lansingburgh Railroad Company was, as alleged, improperly charged with part of the expense thereof.

      R. A. Pa/rmenter, for the relator.

      'William J. Roche, for the defendants.
   Putnam, J.:

This certiorari is brought to review an assessment made by the board of local assessors of the city of Troy against relator’s property, amounting to $25,764.74, for paving a portion of River street, in said city, in which relator’s tracks are placed. The facts as stated in the case, as far as necessary to detail them, are as follows:

“ Under the city charter, as amended by chapter 317 of the Laws of 1889, which last act went into effect on the 29th day of IVIay, 1889, it is, among other things, provided that ‘ whenever the said common council shall order any street, avenue or highway, which is forty feet or upwards in width, to be phved or macadamized and new curb-stone to be set in connection with said pavement, one-half of the entire expense of such pavement, macadamizing and curbstone, including the pavement or macadamizing, and cross-walks at the intersection of streets, avenues, highways, squares and alleys, shall be charged upon the real and personal property liable to taxation m the city of Troy, and shall be paid by the city at large, and the other half of such expense shall be assessed and be a lien upon the property benefited or to be benefited thereby as provided by this act.’

“On the 19th day of September, 1889, the said common council passed, and in due time the mayor of said city of Troy approved a resolution in these words, to wit: ‘Resolved, That the owners of property on River street, from Hoosick street to the north boundary line of the city, be and are hereby ordered to cause said street to be paved with granite block pavement, and set twenty-inch curb-stone along the gutter line. Said work to be performed within ten days, and in default thereof the contracting board is hereby directed to cause the said work to be done, and the expense thereof shall be apportioned and assessed by the local assessors upon the property benefited pursuant to law.’

“ That the local improvement ordered by said resolution comprised the paving of said River street with granite block pavement, with a twenty-inch curb-stone along the gutter line of said street, from Hoosick street to the north boundary line of the city of Troy, through and over the entire length of eleven city blocks, a distance of about four thousand six hundred and fifty-four feet; and said roadway of said street so ordered to be paved is about thirty-six feet in width, .and the track of the Troy and Lansingburgh railroad runs through the ■entire length, and still further north and south; and the width of River street is about sixty feet.”

It is conceded that the work directed by the foregoing resolution ■could not have been done in ten days. The authorities of the city afterwards performed the work directed to be done by said resolution —■ not, however, for the entire distance of River street — at an expense of $78,295.47.

The board of local assessors charged the said expense as follows: Twenty-five thousand seven hundred and sixty-four dollars and seventy-three cents against relator, twenty-six thousand two hundred and sixty-five dollars and four cents against the city at large, and a like sum against the several owners of laud abutting on River street along the line of said improvement.

It appears by the return of the defendants, that there are 7,487.53 square yards of paving between the tracks of said company in River street, and for and including a distance of eighteen inches outside of each rail, which, at the contractor’s price for said pavement, three dollars and forty cents per yard, and including a proper proportion incurred for incidental expenses, amounts to the sum above mentioned charged against relator. It thus appears that the board of local assessors assessed against relator the actual cost of paving between its rails and eighteen inches outside thereof. The defendants in the return state that the relator is, in fact, benefited to the full amount charged against the company by the new pavement.

It is evident that if chapter 317 of the Laws of 18S9, which was in force when the ordinance of the common council of the city of Troy above referred to was passed, is applicable to the assessment complained of by relator, the action of the board of assessors was unauthorized.' Under this statute the board should have divided the expense of the pavement, $78,294.04, in two parts, one of which should have been charged to the city at large, and the other assessed against relator’s and the other property benefited.

But defendants in charging against relator the sum of $25,764.73 on occoimt of said pavement did not, as appears by their return, attempt to do so under chapter 317 of the Laws of 1889 (supra), but claimed that such act did not apply to the assessment in question, because of the clause therein that nothing herein contained shall be held to repeal, modify or affect the conditions or obligations of any existing contract or license, between the city of Troy and any person or corporation.” That on January 29, 1867, defendants passed an ordinance granting a license to relator to lay its tracks on the street in question and other streets. That section 4 of said ordinance is as follows :

“ Section 4. That in laying down the rails they shall put trap rock or Belgium blocks on the inside and the outside of the rail, and also lay a line of granite or trap rock blocks on the outside of each rail which shall be six inches deep, and alternating blocks eight inches square, with six by eight inches, with sufficient cobble-stone pavement to keep the blocks in pilace, and pave the space between the rails, and eighteen inches outside thereof with Belgium pavement, and shall hereafter conform to such style of paving and stone used as the common council may order, and in case said company refuse, omit or neglect to do any act required to be done by this ordinance, then the same may be done by and under the direction of the common council, or the proper officers of the city, and the expense thereof shall be a lien upon said road, and the company in accepting the license given under this ordinance agree to pay such expense, and that such expense shall be a claim against said company, to be collected in an action to be brought by the mayor, recorder aldermen and commonalty of the city of Troy against said company.”

Said ordinance also provided that it was passed on condition that the relator accept the same in writing, and it is not denied that said acceptance was afterwards duly made. Defendants insist that this license, which was accepted by relator, created a valid contract on its part, or liability to pave between its rails and eighteen inches, outside thereof, with such pavement as should be directed by the common council of the city, and on its failure to obey the order of the common council the latter might lawfully do the work and charge the expense to relator, as provided in the ordinance, and that under section 10 of the act of 1889 above quoted, this contract, theretofore made between the city and relator, and the liability of the latter to obey the direction of the city in regard to pavement, was not affected.

I assume, in this discussion, that this position of defendants is correct, and without any careful examination of the matter am inclined to agree with the view of the counsel for defendants in that regard.

It being assumed, therefore, that the contract or liability of the relator, made by the license above mentioned and its acceptance, remain in full force, notwithstanding the act of 1889, can the assessment complained of be sustained %

Although, the city might enforce the contract or liability created by the license of January 29,1867, and the acceptance thereof, it could also proceed and do the worlc in question, and assess therefor under the act of 1889. If the city intended to pave the street its whole width, pursuant to the provisions of the latter act, its proper course was to pass such a resolution as it did, order the work to be done, stating that if not performed such paving and curbing would be done by the city, and the expense apportioned and assessed on the property benefited.

If the city desired and intended to' hold the relator to do the paving between its rails and for eighteen inches outside thereof, under the aforesaid contract or license, it was bound to so inform the company. In some way to notify it that the city, under the license, required it to pave, with granite, such portion of the street as it was bound thereunder to pave. It will be seen, under section 4 {supra), that if pavement other than Belgium ” is required to be used, an order of the common council is necessary. The city was also required to give relator a reasonable time within which to perform the work. It is conceded that it was impossible to do so within ten days, or within a much longer time.

It is evident that when the common council passed the resolution referred to, it was not with the view of holding the company to the liability imposed upon it by the license. It was intended to charge the whole expense, as provided by the act of 1889, upon the city and property benefited. But the city, being about to place in the street in question a new granite pavement, was compelled, if it desired to hold the company to its obligation, to pave, under section 4 of the ordinance of 1867, to pass a proper ordinance to give notice of what it required, to demand performance, and to allow a reasonable time to do the work.

I am unable to see that defendants have ever given any such notice. The resolution of the common council referred to was, in fact, a notice that no claim was made under the license. It was not directed to relator, but to owners of property on the street, and states that the expense of the improvement would be charged on the property benefited. Under the license, relator is not charged with the improvement on the ground of benefit to its property, but on the ground of the liability incurred by the acceptance, of the license. A liability incurred in consideration of the right of running its cars in tlie streets of the city. The company would be liable if the new pavement, instead of being a benefit to it, was, in fact, an injury. It, therefore, never had any notice that the city intended to hold it to the liability under the license, or that it was required to do the paving, or any opportunity to do such work. I, therefore, am of the opinion that no liability on the part of the relator to pay for the expense of the aforesaid paving existed, except such liability to an assessment for its pro rata part of one-half of the cost of the work as may exist under the act of 1889.

I also think that, under section 4 of the ordinance of 1867, the defendants were not authorized to make the assessment in question. The remedy of the city, as provided by the ordinance, if it was, in fact, authorized to do the work in question at the expense of the company, is by action. The assessment in question for such work, if not reviewed after four months, might be deemed made under the act of 1889, and by lapse of time conclude the company.

Defendants suggest that it appears by the return that relator made no objection to the work as it was progressing, but assisted and aided therein, taking an active and affirmative part in connection with such work. That having laid by until the paving was done, relator should now be estopped from objecting to the assessment therefor. The answer to this proposition is, that relator had nO' notice, direct or indirect, that the city was paving between the rails and for eighteen inches outside under the provisions of section 4 of the ordinance of 1867. By the resolution of September 19, 1889,. under which the paving was done, the company had the right to believe that the city did not intend to enforce its liability under section 4 (supra). Such resolution was notice to the company that the city did not so elect. Under it the expense of all the work was to be apportioned and assessed upon the property benefited pursuant to law, that is, under the act of 1889, one-half on the property benefited and one-half on the city at large. Therefore, the company is in no way estopped, no demand being made, and no notice, express or implied, given that the city was doing the work under the license of 1867. It might be argued with considerable force that the city by and under the language of the resolution of September nineteenth (supra) is estopped from making any claim against relator as licensee for the work done thereunder.

• As above suggested, it is evident that wlien tbo city passed the resolution in question the liability of relator under the ordinance of 1867 was not thought of. It was then intended to assess the expense of the work provided by the resolution under the act of 1889, and that the idea of holding the company under the provisions of section 4 of the said ordinance was an after thought.

I think, therefore, that assuming that the city could have compelled relator to do the paving in question by giving proper notice, making a proper demand and affording the company a reasonable time to do the work, yet, having failed to give the notice or make the demand or afford any reasonable time to do the paving, the assessment in question is unauthorized.

There are other questions raised in the case which it is unnecessary to discuss.

I think the assessment in question should be reversed and set aside, with fifty dollars costs and disbursements.

Mayham, P. J., concurred; Herrick, L, dissenting.

Assessment reversed and set aside, with fifty dollars costs and disbursements.


text:
    THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. THEODORE W. MYERS, as Comptroller of the City of New York, Appellant.

      Interest — is recoverable upon a Slate tax past due from a county.

    In a proceeding by mandamus to compel the city of New York to pay a portion of the State tax of 1889-1890, it appeared that the tax was due by the terms of the statute; that it was the duty of the city comptroller to pay it; that his failure to-do so was a neglect of a statutory duty; that the city had power, under the consolidation act (chap. 410 of the Laws of 1882), to issue revenue bonds, and in that manner procure funds with which to pay the tax; and that, although the statute contemplated prompt payment of the tax, it contained no provision relative to interest in case of delay.
    On appeal from an order made at Special Term providing that a mandamus issue directing the payment of the tax and interest:

      Held, that the direction as to interest was proper

    That the amount and time of payment were certain, the money was due and a duty devolved upon the city to pay it.

      That the situation, oí the city and State was the same as that oí an ordinary debtor and creditor, and that the fact that the money was due under a statute and not under a contract was immaterial.
    Appeal by the defendant Theodore "W. Myers, as comptroller of the city of New York, from an order of the Supreme Court, entered in the office of the clerk of the county of Albany on the 23d day of February, 1892, directing that a peremptory writ of mwndamus issue commanding him to issue revenue bonds, and to negotiate the same, for the purpose of raising $464,221.10, with interest thereon from the date of entry of the order, and to pay therewith the State taxes due from the city and county of New York for the fiscal year beginning October 1, 1889.

      William II. OlarJc and George S. Ooleman, for the appellant.

      Simon W. Rosendale, attorney-general, for the respondent.
   Putnam, J.:

The judgment from which this appeal is taken directed the issuing of a peremptory mandamus to the defendant commanding him to issue sufficient revenue bonds of the city and county of New York, and to negotiate the same for the purpose of raising $464,221.10 on account of the State taxes for the fiscal year beffinnine October 1, 1889.

The following propositions asserted by plaintiff may be assumed as established, and I think are not controverted by the defendant:

“First. That the quota of the State tax assessed upon the city and county of New York was due and payable from that county on the 1st day of May, 1890.

“ Second. That it was the duty of the defendant at that time, May 1, 1890, to pay the quota of the State tax due from the city and county of New York into the State treasury.

“ Third. That the failure upon the part of the comptroller, the defendant, to pay the State tax at the time stated was a neglect of statutory duty imposed upon him; and,

“ Fowrth. That mwndamus was the proper remedy to enforce the performance of that duty.”

It is also conceded that the defendant, under the provisions of section 153 of the New York city consolidation act (chap. 410, Laws of 1882), was authorized to issue revenue bonds for the purpose of paying the tax of $420,300.08, which, under the statute, become due on the 1st day of May, 1890.

Counsel for appellant admitted that the statute contemplated a prompt payment of such taxes, but claims that it makes no provision for interest or a penalty in the event of any delay on the part of the city and county of New York.

The only objection urged to the final order or judgment directing the issuance of the mandamus is that it directs the payment not only of the original tax but also of interest thereon. Appellant insists that the plaintiff was not entitled to recover interest, and to that extent that the order appealed from is erroneous.

The general rule is well settled that where a debtor is in default for not paying money in pursuance of his contract he is chargeable with interest from the time of his default. (Van Rensselaer v. Jewett, 2 Comst., 135; Adams v. The Fort Plain Bank, 36 N. Y., 261.)

In this case the tax in question was due from the city and county of New York to the State, Toy the terms of the statute, on the 1st of May, 1890. The payment of said tax by the defendant was made a statutory duty. The amount of the tax was, tiy the law, not only due from him to the State at the time mentioned, but the statute conferred upon him ample power to raise the necessary money. His position may be deemed, then, similar to that of a debtor from whom money becomes due by the terms of a contract. It should make no difference, as to interest, whether the payment is due under a contract, or by the terms of a law. The amount and time of payment were certain; the money was due to plaintiff, and a duty devolved npon the defendant to pay it. I am unable to see why interest should not be paid on a debt due, by the terms of a statute, from the county of New York to the State, the same as if the money was due by the terms of a contract.

"We are only referred to one authority where the question involved in this case has been directly passed upon. (The People v. The County of New York, 5 Cowen, 331.)

In that case decided by the Supreme Court of the State in 1816, it was determined that interest runs ón arrears of taxes owing by a county to the State. It is not suggested that that cause has ever been criticized or doubted. The court there held that when the debtor — in that ease, as here, made a debtor by statute — knows precisely what he has to pay, and when he has to pay, he shall be charged with interest if he neglects to pay. In the opinion, the following language occurs, viz.: ££ Defendants knew perfectly well the amount of the tax due from the county to the State; and they also knew that they were bound to make payment by a certain day in each year. They were then clearly bound to pay interest, unless they are protected by some exception from the general rule.”

I think the case cited was properly decided, and determines the question under consideration in favor of the contention of the respondent.

The judgment should be affirmed, with costs.

Mayham, P. J., concurred; IIeerick, J., not acting.

Judgment affirmed, with costs.


text:
    SAMUEL T. BARNES, Appellant, v. EDWARD RYAN, Respondent.

      Consideration of a promise — settlement of a disputed claim — it is immaterial that the claim was invalid. '
    In an action brought by Samuel T. Barnes against Edward Ryan the complaint alleged that the plaintiff began an action against the defendant for obstructing the flow of water in a ditch which passed through adjoining lands of the parties to that action, and that the defendant promised to pay the plaintiff a certain sum of money if the latter would discontinue his action, which the plaintiff did. The answer alleged that the promise was void for want of consideration.
    The complaint having been dismissed on the trial, on an appeal by Barnes from the judgment of dismissal:

      Held, that it was of no importance whether Barnes’ claim against Ryan was valid or not, as the settlement of a disputed claim would uphold a promise to pay a stipulated sum; and that the action having been brought upon that promise judgment should have been rendered for the plaintiff.
    Appeal by the plaintiff Samuel T. Barnes from a judgment of the Supreme Court, entered in the office of the clerk of the county of Clinton on the 16th day of March, 1892, affirming a judgment for the defendant, obtained in a Justices’ Court, of no cause of action.

      The plaintiff appealed to the Clinton County Court, the judge of which court, upon the ground of disqualification, certified the case to the Supreme Court at Special Term, where the judgment was affirmed as before stated.

      H. tS. Hafft and George H. Beckwith, for the appellant.

      W. H. Dunn, for the respondent.
   Mayham, P. J.:

Appeal from a judgment, entered upon the decision of a judge at Special Term, on an appeal pending in the Clinton County Court from the judgment of a justice of the peace, and certified to the Supreme Court by the county judge on account of his disability to hear the same.

The action was prosecuted in Justice’s Court to recover fifty dollars, which the plaintiff alleged that the defendant agreed by parol to pay him in settlement of a disputed claim made by the plaintiff against the defendant for 'obstructing the flow of water in a ditch which passed through the adjoining lands of plaintiff and defendant.

The complaint alleged the commencement of an action by the plaintiff against the defendant, and that in consideration of the plaintiff stopping the action the defendant agreed to pay him within thirty days fifty dollars and open the ditch.

The answer is a Senial. That the promise was void for want of consideration ; and also under the statute of fraud; also set up the statute of limitation.

The undisputed evidence showed that the plaintiff claimed damages of the defendant for filling up the ditch and threatened litigation, and that the defendant agreed, if plaintiff would not prosecute his pretended claim, he would within thirty days pay him on such doubtful or disputed claim fifty dollars.

Upon these undisputed facts, did this promise constitute a valid cause of action ? ~We do not think that the question of the validity of the plaintiff’s claim for damages for the flooding of his land can properly be considered in answering that question.

The real question turns upon the settlement of or discharge by the plaintiff of a pretended claim, which was disputed by the defendant. It is not necessary that the disputed claim should be a valid one, which the plaintiff could enforce by action.

In White v. Hoyt (73 N. Y., 514) the court say : “It is not necessary to uphold a promise based upon the surrender or composition and compromise of a claim, that it was a valid claim, one that could be enforced at law. A promise made upon a settlement of disputes and to prevent litigation is made upon a good consideration. The settlement of a doubtful claim will uphold a promise to pay a stipulated sum, or do any other lawful act.” And the court cites numerous authorities from judicial decisions and elementary writers to sustain the above proposition. In Stewart v. Ahrenfeldt (4 Den., 190) the court say: “ The settlement of a suit or the compromise of a doubtful claim is a good consideration for a jiromise to pay money; and when an action is brought upon the promise, it is no answer to show that the first suit could not have been maintained, or that the claim was not a valid one. When parties meet upon equal terms and adjust their differences, both are concluded from further litigation of the matter.”

In Russell v. Cook (3 Hill, 504) it was held that a note given upon the settlement of a doubtful claim preferred against the maker will be upheld as founded upon sufficient consideration, without regard to the legal validity of the claim.

In such case it matters not on which side the right ultimately turns out to be; the court will not look beyond the compromise. (See, also, Adams v. Sage, 28 N. Y., 103; Wehrum v. Kuhn, 61 id., 623; Farmers’ Bank of Amsterdam v. Blair, 44 Barb., 641; Rector, etc., of St. Mark's Church v. Teed, 44 Hun, 349.) In the case at bar there was a disputed claim or controverted claim made by the plaintiff against the defendant growing out of the alleged damming of this ditch.

It is not material now to inquire whether the claim was, or was not well founded, or whether, as an original proposition, an action could be maintained upon it. Hpon that subject, the court cannot now speculate. The undisputed evidence is, that to settle that dispute this agreement was made, and that settlement, furnished, within the authorities cited, a good consideration for the promise to pay this money.

That promise was not within the condemnation of any of the provisions of the statute of frauds, and the action being founded upon the promise which grew out of the settlement and not out of the cause of action, or alleged cause of action, in dispute* which was settled, the statute of limitation had not attached to that promise when the action was commenced.

We are, therefore, of the opinion that a cause of action was made out on the proof, and was not successfully defended.

The judgment of the justice and of the County Court must be reversed, with costs.

Putnam and Herrick, JJ., concurred.

Judgment of County and Justice Court reversed, with costs.


author: Mayham, P J.:

text:
    SEBASTIAN GILZINGER, Respondent, v. THE SAUGERTIES WATER COMPANY, Appellant.

      Water-course — injunction, to prevent its diversion — not dependent upon damage being shown by the riparian owner.

    In an action brought by a mill owner to recover damages for the diversion of water from the stream upon which the mill is situated, and for an injunction to restrain the defendant from continuing to divert the waters of the stream, the court may properly refuse to submit to the jury the question whether the defendant, by such diversion of the waters of the stream, essentially diminishes the supply of water necessary for the use of the plaintiff’s water-power and mill.
    The right to the whole natural flow of the stream, whether used or not, is a right guaranteed him by law, which the riparian owner cannot be divested of, except by voluntary relinquishment on his part, or by condemnation thereof, under the exercise of the right of eminent domain.

      Semble, that the rights of riparian owners do not depend upon the use that they may make of the water at any given time, and it does not lie with one who invades those rights to say that the riparian owner has water enough left, or would have enough, if he properly controlled or secured it, for his uses and purposes.
    Appeal by the defendant, tbe Saugerties Water Company, from a judgment of the Supreme Court, entered in the office of the clerk of Ulster county on the 17th day of December, 1891, in favor of the plaintiff for the sum of $650 damages, together with costs; and also from an order of said court denying the defendant’s motion for a new trial made upon the minutes of the court, and upon the exceptions taken by the defendant during the trial, at the Ulster County Circuit before the court and a jury.

      A. T. Clearwater* for the appellant.

      Howard Chipp, Jr., for the respondent.
   Mayham, P J.:

The plaintiff is a mill owner with a water power situate on Plattekill, a non-navigable stream of water running through plaintiff’s premises. The defendant is a corporation under contract to furnish water to the village of Saugerties to the maximum quantity of one and one-lialf million gallons daily, drawing its water supply from the Plattekill at a point about five miles up the stream from plaintiff’s premises, and thus diverting the amount of water so taken by the defendant from its natural and usual channel or course away from the plaintiff’s premises and water-powez’, and depriving plaintiff of the use of the same.

For this diversion the plaintiff brought this action for damages azzd also for a mandatory izzjuzzction coznpelling the defendazzt to restore the flow of this stz’eazn to its natural channel, azzd to reznove its dam, reservoirs and pipes by which the waters of the streazn az-e divez’ted from plaintiff’s mill.

At the trial of this action the court sizbzzzitted cez’tain questions of fact to the jury as follows :

“First. Does the defendazzt, by any diversion of the water of tlze Plattekill, deprive the jzlaintiff of the full beneficial use of his water‘power and mill ? ” To which the juzy answered, “ Yes.”

Second. What az’e the daznages sustained, if any, in consequence of such divez’sion ? ” To which the juzy answered : “We find for tlze plaintiff, $650.”

The court adopted the above finding of the jury, and upon it and other findings zzzade by the judge directed a decree perpetually enjoining the defezzdazzt from azzy diversion of the water's from plaintiff’s mill, and gave judgzzzent for $650 damages, with costs to the plaintiff.

Frozn this judgment and decree the defezzdant appeals to this court. The first point z-aised by the defendant on this appeal is, that this case is one of damnum absque injuria.

This maxim, uzzder our jurisprudence, seems to apply only to cases “ of a wrong done to a party for which the law provides no z-ezzzedy.” (1 Bouvier’s Law Dictionary, 423.)

I fail to see its application to this case, if, as this maxim seems to imply, the diversion of this water is a wrong and affects injuriously the rights of the plaintiff, the maxim could have no application to this case, as in that case the law under which the defendant is incorporated gives it ample power of condemnation, and at the same time guarantees to the plaintiff just compensation for the injury. (Chap. 737 of Laws of 1873, as amended by chap. 415 of Laws of 1876.)

The case of Palmer v. Mulligan (3 Caines, 307), is not an authority sustaining the contention of the defendant upon this point.

That was a contest between riparian owners on the Hudson river, and the case does not disclose that the water was diverted from the natural bed of the stream, or that the supply of the plaintiff was, in any way, diminished or affected, and the court held that what the defendant did in that case was only to exercise his undoured right to use the water in the, stream as it passed along his premises.

It cannot, therefore, be held as matter of law in this case that the diversion of this water from its natural channel over the plaintiff’s land furnished no ground for legal or equitable relief if the plaintiff’s property was injured by such diversion.

We are, therefore, brought to the consideration of the question whether there was any evidence to sustain the verdict of the jury, and the findings and decision in this case.

It is proved, and not disputed, that the plaintiff was the owner of this mill and water-power, and that the defendant had, by dams and conduits, diverted a portion of the waters of this stream above the plaintiff’s mill so as to cause it to flow past plaintiff’s mill, and thus deprive him of the use of the same, to which, as a riparian owner, he was entitled.

If no injury did or could result to the plaintiff by this diversion, then he had no cause for complaint, and could not recover. But can it be said that the deprivation of the right to have this stream flow over his land did not, and could not injure the plaintiff’s property rights in the water privilege? This question was propounded to the jury in substance, and they found that the diversion of this water deprived the plaintiff of the full beneficial use of his waterpower. If this finding was sustained by the proof, then, we think, it brings this case within the principle of Garwood v. Central and Hudson River Railroad Company (83 N. Y., 400), and entitles the plaintiff to relief by injunction, and also to such damage as he had sustained by reason of such diversion.

In West Point Iron Company v. Reignert (45 N. Y., 705), the court say; “ Equity will interpose by injunction to prevent an encroachment upon the rights of a proprietor in a running stream, and will exercise jurisdiction to compel the restoration of running water to its natural channel.”

This follows Corning v. Troy Iron and Nail Co. (40 N. Y., 191). In Smith v. The City of Rochester (38 Hun, 612), where the defendant diverted the water from a lake which had flowed into a creek on which the plaintiff’s mill was situate, and the plaintiff admitted that the defendant had taken steps by which the plaintiff would be supplied with sufficient, and a more uniform supply of water for his mill than he had from the lake, the waters of which the defendant had diverted; yet it was held that as the defendant had no legal right to divert the waters of the lake, and thus diminish the plaintiff’s supply, the plaintiff was entitled to an injunction restraining such diversion, even though it occasioned no actual damage to him, and this case was affirmed by the Court of Appeals and reported in 104 New York, 674.

In the New York Rubber Company v. Rothery (132 N. Y., 293), it was held that the title of a riparian proprietor to his water-rights in a stream and the right to redress for their invasion is not conditional upon the beneficial user of them, and it was accordingly held that he could recover for a diversion, although he has not yet made any use of the water, or enough is left in the stream for the purpose of his business as then conducted.'

It follows, therefore, that the rights of riparian owners do not depend upon the use that they make of the water at any given time, and it does not lie with one who invades that right to say that the plaintiff has enough water left, or would have enough if he properly controlled or secured it for his uses and purposes; the right to the whole natural flow, whether used or not, is a right guaranteed him by law, of which he cannot be divested except by voluntary relinquishment on his part or condemnation for public purposes.

It follows, therefore, that when his rights are invaded- without consent, or legal authority, he may, in a proper case, invoke the equitable aid of the court for its restoration.

The remaining question is, did tbe learned trial judge commit any error in receiving or rejecting evidence or in submitting tbe case to tbe jury for which tbe judgment should be reversed ? The counsel for the defendant requested tbe court to submit to tbe jury tbe following question on which to pass, viz.: “ Does tbe defendant, by any diversion of tbe water of the Plattekill, essentially diminish the supply of water necessary for the use of tbe plaintiff’s waterpower and mill ? ” This request tbe court denied and tbe defendant, duly excepted.

Within tbe case of New York Rubber Company v. Rothery (supra) we think the ruling of tbe court on this request was correct. We have carefully examined all tbe rulings’ of the learned judge upon tbe receipt and rejection of evidence to which the appellant took exceptions, and also tbe portions of tbe charge to which exceptions were taken by the defendant’s counsel, and discover no-error for which this judgment should be reversed.

Putnam and Herrick, JJ., concurred.

Judgment affirmed, with costs.


author: Per Curiam .

text:
    TIMOTHY CARPENTER, Respondent, v. GEORGE Y. CARPENTER, Appellant.

      Contracts — breach of .an agreement to support one for life in consideration of his services— the measure of damages.

    Timothy Carpenter made a verbal contract with George Y. Carpenter, under which, the latter agreed to maintain the former for life, such maintenance of Timothy Carpenter to be paid for by his services.
    In an action brought by Timothy Carpenter against George Y. Carpenter, who, at the end of nine years, refused any longer to maintain him, to recover the damages resulting from this breach of contract, the plaintiff was allowed to recover for the value of his services, in excess of the value of maintenance, during the whole period of his service, about nine years.
    Upon an appeal by the defendant from this judgment;

      Held, that it was erroneous.
    That the plaintiff was only entitled to recover the value of so much maintenance-as the defendant had failed to furnish prior to the commencement of the action, and the prospective expense of his maintenance during the rest of his life.

      Appeal by tlie defendant George Y. Carpenter from &■ judgment' of tbe Supreme Court, entered in the office of the clerk of Saratoga county on the 10th day of May, 1892, upon a verdict for the plaintiff for $750 after a trial at the Saratoga Circuit before the court and a jury.

      8. M. Richards and T. F. Hamilton, for tlie appellant.

      H. P. Pendrick and J. W. Houghton, for the respondent.
   Per Curiam .

We think the rule of damages adopted below wrong. Plaintiff, having lived with and been maintained by defendant for about nine years under a verbal contract, by which the latter, in consideration of the services to be performed by the former, was to board and maintain him during the remainder of his life, on a subsequent breach of the contract, was suffered to recover the value of his services over the value of the maintenance furnished for the whole period he had lived with defendant.

During said period the work done by plaintiff was paid for, as provided in the contract, by his board and maintenance.

During two years, or about that period, prior to the commencement of the action defendant failed to board and maintain plaintiff pursuant to the contract. The rule of damages in such a case, under such a contract, is well settled. Plaintiff was entitled to recover the expíense of his support, which defendant had failed to furnish as provided by the contract before the commencement of the action, and the prospective expense for such maintenance during the balance of his life. (Shaffer v. Lee, 8 Barb., 412; Schell v. Plumb, 55 N. Y., 592.)

We think this one of those instances of the submission of a case to the jury on an erroneous theory, where, although no exception was taken to the charge, a new trial should be granted. ( Whitaker v. D. and H. Canal Co., 22 N. Y. St. Rep., 409.)

But on the trial the appellant did object to evidence offered to show the value of respondent’s services at the time he lived with appellant “ as not the piropier measure of damages.” The court overruled the objection and an exception was taken. We think the court erred in so ruling for the reason above stated. We have read carefully respondent’s supplemental brief, but are of opinion that said evidence as to tlie value of respondent’s services under the complaint, and the theory adopted by the plaintiff and the court on the trial, was incompetent for any purpose. >

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

Present — Mayham, P. J., Putnam and Herrick, JJ.

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