author: Davis, J.:

text:
    In the Matter of the Application of HENRY W. GENET for a Mandamus to the Court of Oyer and Terminer.

      BUI of exceptions—criminal when fugitive from justice—not entitled to have exceptions taken reviewed.

    A person, convicted of a crime, who escapes from custody before sentence, and flees the jurisdiction of the court, thereby waives and suspends his rights to have exceptions, taken on the trial, reviewed by the appellate court, and such waiver and suspension can be avoided by him only by returning to the custody and judgment of the law.
    Such criminal cannot demand, as matter of right, the statutory benefits conferred on those who submit to the jurisdiction and judgment of the courts.
    A party, in contempt of court, will not be permitted to ask a favor of the court, nor to take any aggressive proceedings against his adversary.
    Application for a mandamus to the Court of Oyer and Terminer.
    Henry W. Genet was convicted of felony at the Court of Oyer and Terminer, in December, 1873. While in custody, awaiting the decision upon an application for the settlement of a bill of exceptions, and before sentence, he escaped, and was, at the time of this application, a fugitive from justice.
    The applicant moved, at the General Term, for a writ of mandamus, directing the justice who presided at the Oyer and Terminer, on the trial of the indictment, to proceed with the settlement of the bill of exceptions, and to sign and seal the same when settled; the justice having refused to do so on the ground that, Genet being at large, a fugitive from justice, and without the jurisdiction of the court, public policy required that he should not be allowed to conduct such proceedings by his counsel.

      Wrrt-. A. Beach, for the motion.

      B. K. Phelps, district attorney, opposed.
   Davis, J.:

The applicant, Henry W. Genet, was convicted of felony at the last December term of the Oyer and Terminer, and, upon such conviction, was committed to custody, to await sentence, pending an application for the settlement of a bill of exceptions. Before that application was disposed of, or sentence pronounced, he escaped from custody, and has since been a fugitive from the State. The bill of exceptions prepared on his behalf, with the amendments proposed thereto by the district attorney, were presented to the court for settlement. The court declined to proceed with and complete the settlement of the proposed bill, on the ground that the defendant was, and is still, “ a fugitive at large and beyond the control and without the power of the authorities of this State, he having made his escape and absconded from their custody after his conviction, while awaiting the action of the court upon it.” ’ The applicant now moves the General Term for a writ of mandamus, directing the justice, who presided at the Oyer and Terminer on the trial of the indictment, to proceed with the settlement of the bill, and' to sign and seal the same when settled. The reasons assigned by the learned judge, before whom the applicant was tried, for refusing to settle the bill, commend themselves to our judgment. He says: “ My conviction is, that, while the defendant is at large' as a fugitive beyond the reach and control of the authorities of this State, public policy requires that he should not be allowed to carry on any proceedings in its courts, of the nature of that now proposed on his part by his counsel. Before that should be allowed, he should return and surrender himself to the custody of the proper authorities. Then he will be entitled to all the advantages provided by the laws of the State for the review of criminal convictions. But until that be done, the authorities he has defied by his escape, should decline to interfere in his behalf, by the way of placing his case in a shape to have it examined or reviewed. If that course be not adopted, then some' encouragement will be afforded by the proceeding which may be authorized, that will operate as an inducement to offenders, after conviction, to escape from custody; because they will then be able to defy the authorities, and, at the same time, require them to act in their behalf, so far as to afford them an opportunity of judging whether they may most safely return or continue to remain away.” .

It will be observed that the learned judge put his decision upon grounds of public policy. In this, he is sustained by authority. In a case reported in 31 Maine, it is stated that the “ defendant had been tried and convicted upon an indictment for an aggravated offense. He excepted, and was committed for want of sureties to appear at the law term at which the exceptions were to be heard. Meanwhile he'escaped. His counsel proposed to argue the exceptions, but the court declined to hear the case until .the defendant should be again in custody.”

In Commonwealth v. Andrews, the defendant was found guilty, and alleged exceptions, which were allowed, and which h,e w;as held in jail to prosecute. The case being called in the Supreme Judicial Court, the Attorney-General suggested that the defendant had broken jail and was at large, and asked that he should be defaulted and the exceptions overruled, without argument. The counsel for the defendant admitted the escape, but argued that he was entitled to a hearing .on the exceptions, in defendant’s behalf; that the defendant’s status, at the time of the allowance of the. exceptions, was alone to be considered by the court in passing on them; that by his escape he had committed a crime, for which he was liable in a separate proceeding; and that to deprive him of a hearing on exceptions, in another and different proceeding, would be to inflict a punishment for his escape, in derogation of his constitutional rights. The court, Bigelow, O. J., pronouncing the opinion, overruled the several points taken by the defendant’s counsel, and held, that, so far as the defendant had any right to be heard under the Constitution, he must be deemed to have waived it by escaping from custody and failing to appear and prosecute his exceptions in person, according to the order of the court under which he was committed. The defendant was, thereupon, defaulted, and his exceptions overruled. That case goes farther than we are called upon t.o go, in upholding the decision of the Oyer and Terminer; for the court defaulted the defendant, because of his escape, and overruled his exceptions, thus putting him in position where he could not be" heard, as matter of right, upon his return to custody. In the case at bar, the judge. has simply suspended proceedings till the return to custody of the defendant. He has adopted the suggestion of a learned writer on criminal procedure, who says: If, however, the prisoner has absconded, or is in a position analogous to what is termed being in contempt, it will be highly judicious for the court to decline hearing even a mere legal argument in his absence.” It is well settled that a party may waive a statutory right, and, in sotiie instances, rights secured to him by the Constitution. This he may do as well by his acts as by any formal solemnity. The statute gives to a party, convicted of any crime, the right to have errors of law, committed on his trial, corrected on bill of exceptions. But such bill of exceptions is not to stay or delay the rendering of judgment, or the execution of such judgment, except as specially provided by statute. Our system for the review of convictions and judgments in criminal cases, was not known to the common law, but was created by statute, in relaxation of the rigors of the common law, and for the protection of persons, accused of crime, against illegal convictions. It is based altogether upon the idea that the party, who alleges an erroneous conviction, which he seeks to correct, will hold himself amenable to the judgment of the court of review, to whose supervising justice he appeals. He is at liberty at all times'.to waive or abandon his proceedings, and this he may do by some formal step in the courts, or by acts which place him beyond the jurisdiction of the courts, and out of the custody of the law. In all criminal cases where the judgment of imprisonment is to be pronounced, the defendant must be present in person to receive sentence. “ Judgment cannot be given against any man in his absence for a corporal punishment.” A convict, who escapes from custody before judgment, and flees the jurisdiction of the court, puts himself in a position to prevent judgment in a court of review, if adverse to him, and to render it nugatory, if in his favor; for the court can pronounce no judgment of corporal punishment without his actual presence, nor can ' it order a new trial which will be effectual^ without his voluntary choosing to return and submit to it. We think no person who stands convicted of crime, can thus, by committing another offense, make himself master of the situation, and, at the same time, command and defy the judgment of the courts. The true ground, as it seems to us, is to hold that his conduct has, for the time being, waived or suspended his rights, whatever they may be, and that the waiver or suspension can be avoided by him, only by returning to the custody and judgment of the law. The process of outlawry at common law, against an escaped prisoner, put the criminal in a position where he could not be heard to assert any claim of right, until the judgment of outlawry was reversed or set aside. We have abolished that proceeding by statute, but it does not follow that the convict, who outlaws himself by escaping from custody, can demand, as matter of right, at the hands of the court, the statutory benefits conferred on them who submit to the jurisdiction and judgment of the courts.

The Court of Oyer and Terminer was, we think,- justified in refusing to proceed with the bill, because the proceedings would be nugatory. Ho writ of error will lie to bring the bill of exceptions before this court till after judgment shall be pronounced. The defendant is preventing judgment by his unlawful acts; and, while his misconduct keeps the case in that position, the court owes him no duty, to perform, on his behalf, an act which he, himself, renders wholly unavailing. The bill, if settled, could not be brought up on certiorari, without the stay of judgment provided for by statute; and no judge would be bound, or likely to grant a certificate of probable cause, while the defendant was maintaining a practical stay of all proceedings against him, by his flight from justice. It is insisted by the learned counsel for the defendant, that Genet can only be deemed to be and treated as in contempt of court, and that the rule that one in contempt will not be heard, applies only to matters of favor, and that, though adjudged to be in contempt, the party will be heard on matters of strict right, and is entitled to be heard, if his object is to get rid of the order or other proceedings which placed him in contempt. But the true rule, even in such a case, is that stated by Folger, J., in Brinkley v. Brinkley, “ that a party in contempt, and until he is purged of it, will not be permitted to ask a favor of the court nc/r to take any aggressive proceedings against Ms ad/oersary; but that it is his right to take measures to protect, himself, and to make any motion designed to show that the order adjudging him in' contempt was erroneous.”

If Genet had been adj udged to be in contempt for his escape (which, perhaps, might be done under proper notice and opportunity to him to show cause) he would be at liberty to take any steps to remove that order, but not to press aggressive proceedings in the case against the people. But he has not been adjudged to be in contempt, nor has any order of that nature been made upon him. The refusal of the court to proceed, does not depend on the rules affecting contempts, but on the grounds above stated. It may * ■be contempt to escape custody and flee the jurisdiction of the court; but the contempt is one which can be readily removed by the return of the prisoner; and that is the only step open for him to take to effect its removal. The suggestion of. counsel, that the bill should be settled and filed, to guard against dangers arising from the uncertainty of life, is an argument that he should more properly address to his client to hasten his return, lest he should lose the rights which his absence suspends. The court cannot protect him against risks of that character, occasioned by his own illegal conduct.

The motion for mandamus should be denied.

Brady, J., concurred.

Motion denied.

       Page 592.

       97 Mass., 543.

       1 Bishop on Criminal Procedure, § 277, p. 166.

         2 R. S., 736, § 21.

       Buel v. Lockport, 3 Coms., 197; Peo. v. Cancemi, 16 N.Y., 501.

       Idem, § 22.

       1 Chitty Cr. Law, 163; Reg. v. Caudwill, 17; Q. B., 503.

       C. J. Holt, in Duke’s Case, Holt, 399.

       47 N. Y., 49.


source: Caselaw Access Project

author: Daktols, J.:

license: Public Domain

text:
      HANNAH JANE HULL v. JAMES K. SPRATT and JAMES W. BOWNE, Appellants, and VERNON K. STEVENSON, Respondent.

      Vendee—lien of, for purchase-money paid—lis pendens — who bound, by judgment recovered after fling of.

    The defendant, Stevenson, brought an action against the defendant, Spratt, for the specific performance of a contract for the sale of certain real estate to him, notice of pendency of action being duly filed on the 29th of April, 1871, and on the 10th of June, 1872, a judgment was entered in his favor therein, by which it was adjudged, that, as the defendant, Spratt, was unable to specifically perform the said contract, the amount recovered thereby, should be a lien on the surplus moneys arising from a sale of the premises under a prior mortgage lien, from the time of the filing of the Us pendens. On the 18th of May, 1871, the defendant, Bowne, recovered a judgment against Spratt, which was duly docketed. The premises having been sold under a mortgage which was prior to the rights of either of these parties, held, that the defendant, Stevenson, had a lien upon the surplus moneys arising upon the sale, which was prior to that of Bowne, and that the judgment recovered by Stevenson, was evidence of this priority against Bowne, because the latter acquired his lien, under the debtor and vendor, after the notice of Us pendens in the action was filed.
    Appeal from an order affirming the report of a referee, directing the distribution of the surplus moneys, arising on a sale of premises, under the foreclosure of a mortgage. On the 2d of September, 1870, the defendant, Spratt, agreed to sell certain premises in the city of New York to the defendant, Stevenson, but, at the time appointed for the delivery of the deeds, he was unable to perform the contract on his part. In April, 1871, Stevenson commenced an action to compel the specific performance of this contract, the lis pendens being filed on the tw'eiityninth of April, and on the 10th of June, 1872, a judgment was entered in his favor, by which it was adjudged that he should recover of Spratt, the sum of $1,350, and the said sum was declared a lien on the surplus moneys arising from the sale of the premises, contracted to be sold under a prior mortgage lien, from and after the date of the filing of the lis pendens. On the 18th of May, 1871, the defendant, Bowne, recovered a judgment against Spratt for $4,452.58, which was duly docketed. The premises having been sold on the foreclosure of a mortgage, prior to both of these judgments, it was referred to a referee, to report as to the proper distribution of the surplus moneys arising upon the sale. He reported that the lien of the defendant, Stevenson, was prior to that of the defendant, Bowne, and, his report being confirmed by the court at Special Term, the defendant, Bowne, appealed.

      Ii. Brewster, for the appellant, Bowne.

      W. B. Peekham, for the respondent.
   Daktols, J.:

The respondent’s judgment, directed to be paid as a prior lien to the judgment recovered by the appellant out of the surplus moneys arising from the foreclosure sale, was recovered as a specific lien upon the fund. The action was brought to enforce the specific performance of a contract for the conveyance of the property, and a notice of Us pendens was properly filed in it, before the appellant recovered his judgment. And, as the property was sold under the foreclosure of a mortgage superior to the rights of either of these parties, the respondent recovered a judgment for the money he had paid upon his contract as a specific lien on the vendor’s interest in the fund. This was equitable and just, because, by the contract, the vendor became, in effect, a trustee of the title for the vendee. The property was equitably his, so far as the purchase-price was paid, and, to that extent, a judgment recovered against the vendor, did not become a lien upon it.

When the appellant recovered his judgment, it was subordinate to the action then pending in the respondent’s favor. He had previously filed notice of the pendency of his action, which rendered it the duty of the appellant to take notice of the proceedings in it. Indeed, it operated as notice to the appellant, whose rights to proceed against the fund were all afterwards acquired. By the judgment in the respondent’s favor, so much of the fund as was necessary for that purpose, was appropriated to its payment. And, so far as the appellant was concerned, whose judgment simply became chargeable on the interest of his debtor, it took effect from the time the notice of the pendency of the.action was filed. “

It was, therefore, rightly held, that the respondent’s specific lien upon the fund, should be discharged before anything could be paid to the appellant, who, at most, had but a general lien. And the judgment was evidence against the appellant of this priority, because he acquired his lien under the debtor and vendor, after the notice of the pendency of the action was filed. That was sufficient to conclude him by means of the respondent’s judgment afterwards recovered in the same action.

But, by the judgment, the respondent was only entitled to be paid the amount recovered by him as a lien upon the fund. And that was the sum of $1,114.72, with interest from April 22,. 1872, while the report of the referee, and the order confirming it, awarded him that amount, with interest from April 22, 1871. The order and the report should be modified so as to direct the amount to be paid, with interest from April 22, 1872, and, as so modified, affirmed, without costs.

Davis, P. J., and Brady, J., concurred.

Order modified, and, as modified, affirmed.

       Wilkes v. Harper, 2 Barb. Chy., 339; Matter of Howe, 1 Paige, 125.

       Code, § 132; Harrington v. Slade, 22 Barb., 162-166.


author: Davis, P. J.:

text:
    THE PEOPLE v. WILLIAM J. SHARKEY.

      Writ of eiror—certiorari—motion to dismiss—fugitive from justice.

    A writ of error allowed after judgment, and 'before ihe escape of a prisoner, will not be quashed on motion of the people, though it appear that after the allowance of such writ, the prisoner escaped and fled the jurisdiction of the court.
    Motion to quash and dismiss writs of error and certiorari, issued from this court to the Court of Sessions.

      B. K. Phelps, district attorney, for people.

      Wm. A. Beaeh, opposed.
   Davis, P. J.:

The affidavit in the case shows, that, after judgment, and prior to the escape from jail of Sharkey, a writ of error and stay of proceedings were duly allowed by one of the justices of this court, and, that subsequent to the escape, a writ of certiorari was allowed to bring up matters dehors the record.

In the case of the application of Henry W. Genet, for a mandamus, this court have come to the conclusion that the convict, who thus escapes and remains a fugitive, cannot require, at the hands of the courts or judges, any proceeding in his favor, or insist upon any steps adverse td the prosecution, but that his rights to act adversely to the people, are waived and suspended by his own criminal conduct.

The effect of this act is to leave the case in statu, .quo, so far as action of the convict is concerned.

The court would not, therefore, take any action on his motion or behalf. But it does not follow" that courts may, on motion of the people, deprive him of the benefit of proceedings already taken before his escape. We think, therefore, that the writ of error should not be quashed.

The certiorari might properly have been denied; but as it is auxiliary to the writ, and as the court below will not be compelled to make return to either writ, until Sharkey shall be again in custody, within the jui’isdiction of the court, we think the better course is to deny the motion in both its aspects.

Bradt, J., concurred.

Motion denied.

       See ante, p. 292.


text:
    JAMES BROWN, Respondent, v. EDWIN POST, Appellant.

      Agent—purchase of principal's property by—fraudulent representations—discovery of—active vigilance—not required.

    Plaintiff was the owner of certain mining property, of which the defendant, as his agent, had the care and management. Being desirous of disposing of the same, he entered into an agreement with defendant, whereby he was to convey the Irondale and Denmark mines, and a note made by one Condit, to defendant for $201,000. Plaintiff was induced to enter into this agreement by the representations of defendant, that the Irondale mine could be sold to one Popenhausen for $100,000; it being distinctly understood between the parties that the defendant would realize the sum of $25,000 for his services in making the sale and no greater sum. At the time this agreement was entered into, defendant had already contracted to sell the Irondale mine to Popenhausen for nearly $200,000. Plaintiff, in ignorance of this fact, conveyed the Irondale mine to defendant in pursuance of the agreement, and he conveyed it to Popenhausen, receiving nearly $200,000 for it. Subsequently plaintiff discovered the fraud and brought this action to have the sale of the Denmark mine canceled, and to recover the difference between the price for which the defendant sold the Irondale mine and the amount paid by him as the purchase-price of it, including the expenses attending the sale and completion of the title and a compensation to him of $25,000. Held, that he was entitled to recover; that before the defendant could lawfully become the purchaser of the property which constituted the subject of his agency, his relations to it required that he should fully and fairly disclose to his principal all the facts which were known to him that could be supposed to affect the terms on which it might be proper to dispose of it.
    In order to sustain such a transaction and secure the sanction of a court of equity for it, the agent must be able to show it to be fair and honest, and to have been preceded by the disclosure of what he had ascertained or discovered concerning its value and propriety, where the principal has not dispensed with the performance of that duty.

      Before the deed for the Irondale mine was received by the purchaser, intimations were given to the plaintiff’s counsel that the defendant had sold the property for more than the plaintiff supposed he was receiving, but, upon a partial investigation being made, the suspicion created by such intimations, was removed. A more decided investigation might have led to a discovery of the truth before the deed was delivered. Held, that the plaintiff was under no obligation to the person deceiving him to make such investigation A person deceived by the fraudulent misstatements of another, owes him no duty of active vigilance in the discovery of the fact that they are false; where, by means of .that character, he deceives another to his prejudice, there is nothing in the law requiring him to be protected against the consequence of his wrong, because the person imposed upon, did not suspect him and adopt some means to discover the imposition.
    Appeal from a judgment in favor of the plaintiff, entered upon the report of a referee.

      John E. Bwrrill, for the appellant.

      Olarlcson N. Potter and James P. Lowrey, for the respondent.

       Ringo v. Binns, 10 Peters, 269; Farman v. Brooks, 9 Rich., 213, 231; Story’s Equity Jur., 9th ed., §§ 315, 316 a.

       Baker v. Spencer, 47 N. Y., 562.

   Opinion by Daniels, J.

Davis, P. J., and Westbrook, J., concurred.

Judgment affirmed, with costs.


text:
    EDWIN HADLEY, Appellant, v. SAMUEL C. BOEHM, Impleaded, etc., Respondent.

      Discharge in bankrrwptcy — swpplemental answer — order aMomng — not

    This action was commenced in September, 1871, issue was joined in November, 1871, and an affidavit of merits served December 30,1871. The cause was on the calendar until January Term, 1874, when an inquest was taken, and judgment entered on January sixteenth. In November, 1872, defendant instituted proceedings in bankruptcy, and, on April, 18,1873, received a discharge from all his debts including the one for which this suit was brought. Defendant’s attorneys, when advised by him of his proceedings to be discharged, understood him to instruct them that they should give the case no farther attention, and they, acting upon this, allowed the inquest to be taken.

      The plaintiff had notice of such proceedings. The defendant having received his discharge, and fully relying on the same as ending the suit, paid no attention to it until he learned that judgment had been entered against him, when he applied to have the judgment set aside, and for leave to file a supplemental answer, setting up his discharge. Held, that upon these facts, the order granting the application was proper; and held, further, that the order being discretionary, was not appeal-able.

    Appeal from an order made at Special Term, setting aside a default taken at circuit, and allowing the defendant, S. 0. Boehm, to file a supplemental answer, setting up his discharge in bankruptcy, which was obtained since serving his original answer.

      B. F. Watson, for the appellant.

      Salter <& Cowing, for the respondent.

       Medbury v. Swan, 46 N. Y., 200; Millard v. Van Brunt, 17 Abb., 319; Wait’s Ann. Code, 331.

   Opinion by Brady, J.

Davis, P. J., and Daniels, J., concurred.

Order affirmed, with costs.


text:
    ALEXANDER H. SEAVER and another, Appellants, v. GEORGE MOORE, Respondent.

      Hrcmdulent stipulation — motion to set aside.

    The plaintiffs applied for an order setting aside a stipulation, made in this action, vacating an order of arrest, alleging in their affidavits that their former attorney, who signed the stipulation, had no authority from either of them to make it, and that, for the purpose of obtaining thirty dollars, he willfully and corruptly stipulated away their rights herein; that there are entries in the register of 'defendant’s attorney, showing that, on the 6th June, 1870, such attorney made an agreement with the plaintiffs’ attorney to pay him thirty dollars for a stipulation to discharge the order of arrest, and that he did pay that sum on that date for said stipulation; and that plaintiffs had just been informed, by their present attorney, of the signing of the stipulation by their former attorney. The court held that the affidavit of defendant’s attorney did not satisfactorily meet the charge and that the stipulation should he annulled, hut without prejudice to the sheriff, who was released by the order made upon-it from all responsibility.
    Appeal from an order denying a motion to set aside a stipulation made in the action vacating an order of arrest.

      Charles J. Quiteau, for the appellants.

      Horatio N. Walker, for the respondents.
   Opinion by Brady, J.

Davis, P. J., and Daniels, J., concurred.

Order reversed with costs; stipulation and order entered upon it set aside without prejudice to the rights of the sheriff acquired by its entry.


text:
    ROBERT GOELET v. THOMAS McMANUS and others.

      Surplus moneys—recording act — unrecorded mortgages — Iona fide pwrchaser.

    On the 10th of April, 1871, W. Jeremiah, the owner of certain real estate, executed his bond, secured by a mortgage upon said premises, for $3,000, to J. Jeremiah, who, on the. 35th of July, 1871, delivered the same to one Morgan. On September 13,1871, W. Jeremiah conveyed the premises to Mary Ann, wife of John Jeremiah, without consideration, the grantee having actual knowledge of the mortgage then held by Morgan, and the consideration he had paid for it. The deed to Mary Ann Jeremiah was recorded October 5, 1871. On October 38,1871, John Jeremiah executed a written assignment of the bond and mortgage to Morgan, and, on January 3, 1873, the mortgage and assignment were recorded. On the 16th of January, 1873, Mary Ann Jeremiah executed a mortgage upon the premises to one Andrews, for $3,000, who assigned it to one Herman on the twenty-second of the same month, the mortgage having been recorded on the twenty-first. Herman had no notice of the first mortgage, except such constructive notice as was given by the record. Held,, that when Morgan put his mortgage on record, January 3,1873, it was a complete and perfect lien, and that the lien acquired by Herman, under the mortgage to Andrews, was subsequent thereto.

      Appeal from an order of the Special Term, confirming a report of a referee on distribution of surplus moneys.

      Blumenstiel db Ascher, for the appellant.

      T H. Felton, for the respondent.

      The cases of Van Rensselaer v. Clark, 17 Wend., 25; Ring v. Richardson 3 Keyes, 450, and Schutt v. Large, 6 Barb., 373, followed.

   Opinion by Davis, P. J.

Daniels and Beady, JJ., concurred.

Order affirmed, with costs.


text:
    MORRIS HIGGINS, Plaintiff in Error, v. THE PEOPLE, etc., Defendants in Error.

      Indictment—rape—false testimony—effect of when willfully so — virginity — im/matei'iaMty of.

    On the trial of an indictment for rape, the judge charged the jury that if they believed, from all the evidence, that the complainant was not a virgin, it did not lessen the crime in the slightest degree. Held, to be a-correct charge.
    In case of rape, if the party raped conceal the fact for any considerable time after an opportunity to explain, except from fear, this and like circumstances afford a strong, though not conclusive, presumption that her testimony is feigned.

    It is not true, as a rule of law, that if the complainant has been contradicted by competent and reliable witnesses in any one of the material facts sworn to by her, the jury should discredit her testimony in every pm‘Mculw'.

    The rule, false in one thing false in all, only applies when the witness wilfully or designedly testifies falsely.
    Writ of error to the Court of General Sessions of the Peace, held in and for the city and county of New York.

      William F. Howe, for the plaintiff' in error.

      B. K. Phelps, district attorney, for The People.

      1 Hale, 633-635; 1 Hawk. C., 41-59; 1 Arch. Cr. Pr. & Pl., 169, 7th ed.

       Wilkins v. Earle, 44 N. Y., 172.

   Opinion by Beady, J.

Daniels and Westbrook, JJ., concurred.

Judgment affirmed.


text:
    THOMAS HOLLOWAY, Respondent, v. BENJAMIN F. STEPHENS, Appellant.

      Reversed of judgment—restitution of money collected under—stipulation—void, as against public policy.

    A judgment was entered in this action in favor of the defendant, from which the plaintiff appealed to the General Term, where it was reversed, and a new trial ordered.
    Pending the appeal, the defendant proceeded to collect the judgment by execution and levy, and the appointment of a receiver of the plaintiff’s property. Certain property of the plaintiff’s was sold on-execution under an agreement made between the defendant and plaintiff’s agent, who was the defendant’s receiver, that the money should not be restored in case the judgment was reversed, and that plaintiff’s agent should be permitted to purchase and become the owner of the property thus sold. After the reversal of the judgment at General Term, an order was made directing the restitution to the plaintiff of the amount collected under the judgment. Held, that the order was correct; that the agreement between plaintiff’s agent and defendant was void, as against public policy, as it in effect provided for transferring the property of the principal to the agent, and that it was not binding upon the plaintiff.
    Appeal from an order, directing restitution to the plaintiff, of property collected under a judgment which had been reversed.

      Titus B. Eldridge, for the appellant.

      John, OUnton Gray, for the respondent.
   Opinion by Daniels, J.

Davis, F. J., and Beady, J„ concurred.

Order affirmed, with costs.


text:
    ALBERT J. SMITH, Respondent, v. JOHN BODINE and others, Appellants.

      Motion, to amend answer — when denied—laches—discretion.

    When a cíase has been long pending, and is on the second trial before a referee, and when the evidence given on the preceding trial, subjects the affidavit, made in support of the application for leave to amend the answer, to grave suspicions as to the correctness of its statements, the court will consider such circumstances on such an application.
    Whether an amendment to a pleading should be allowed or not, has been confided, by the provisions of the Code, very much to the discretion of the court .hearing the motion. And, ordinarily the exercise of that discretion is not after-wards the subject of review by the General Term, upon appeal.
    Appeal from an order denying leave to amend an answer, by adding an allegation materially changing the effect of an admission, made as to the amount of compensation due to the plaintiff for his services.

      Cyrus Lawton, for the appellants.

      Henry Niooll, for the respondent.
   Opinion by Daniels, J.

Order affirmed.


text:
    THOMAS M. TYNG, Appellant, v. THE UNITED STATES SUBMARINE AND TORPEDO BOAT COMPANY, Respondent.

      Motion for reargwment— denied.

    This case was decided at the March term, the opinion being delivered by Daniels, J., and reported ante, at page 161. At this term, a motion for a reargument was made substantially for the reason that the patents procured by the plaintiff were delivered to the defendant, and that this action for the money paid by the plaintiff in procuring them may be sustained, even though they were not procured under its employment, or the money .paid at its request. The referee found that the patents never were delivered to the company. And the court, upon a review of the evidence, held, that it was not sufficient to authorize them to reverse this finding. For this reason, and because it appeared from the plaintiff’s own testimony that the defendant was only to pay as soon as any money was received in the treasury, and that no money ever was received, the motion for a reargument was denied.

      H. E. Dames, Jr., for the motion.
    ---, opposed.
   Opinion by Daniels, J.

Dayis, P. J., concurred.

Motion denied, with costs.


text:
    GEORGE SLOANE, Respondent, v. WILLIAM ELMER, Appellant.
    Damages—servant— liability of principal for.

    This action was brought to recover damages for injuries to plaintiff’s wife and son, and to his carriage, by -a collision alleged to have occurred through the negligence of defendant’s servant. At the trial, the defendant introduced evidence to show that he was not the owner of the horses and carriage which had caused the injury, nor the master of its driver. The judge, having left to the jury the question of the ownership of the horses and carriage, was requested to charge “ that if they find the coachman was not the servant of the defendant, but was in the employ of Mrs. Hunt (.one of the occupants and the alleged owner of the carriage), they cannot find for the plaintiff,” and declined so to charge. Held, that his refusal so to do was error. The liability of the defendant depended entirely upon the fact that the coachman was his servant, and the question of the ownership of the carriage and horses was only material as it tended to prove or disprove this fact.
    Appeal from a judgment, entered in favor of the plaintiff, on the verdict of a jury, and from an order denying a motion to set aside the verdict.

      Titus B. Eldridge, for the appellant.

      A. R. Dyett and R. W. Townsend, for the respondent.
   Opinion by Davis, P. J.

Daniels and Lawbence, JJ., concurred.

Judgment reversed and new trial ordered.


text:
    PATRICK SLATTERY, Plaintiff in Error, v. THE PEOPLE, etc., Defendants in Error.

      Charge of the court — made at prisoner's request — cannot afterwards be objected to by Mm.

    Writ of error to review the conviction of the plaintiff in error, at the Court of General Sessions, upon an indictment for an assault with intent to kill. Before the case was submitted to the jury, the prisoner’s counsel requested the court to charge that he could not be convicted, under the indictment, for an assault with a sharp, dangerous weapon, with intent to do bodily harm, and the court so charged. Held, that the charge having been made at his request, he could not afterwards object to it, although it was clearly erroneous; nor could he have been prejudiced by this error, as the jury have, by their verdict, negatived the idea that the crime committed by him was anything less than that charged in the indictment.
    Writ of error to review the conviction of the plaintiff in error, for assault with intent to kill, at the February Term of the Court of General Sessions of the city of Hew York.

      William F. Kintzing, for the plaintiff in error.

      Bang. K. Phel/ps, district attorney, for the defendants in error.
   Opinion by Daniels, J.

Davis, P. J., and Brady, J., concurred.

Conviction affirmed.


text:
    ANDREW SOHER, Respondent, v. JAMES C. FARGO, Trustee etc., Appellant.

      Supplemental complaint—leame of court neaessa/ry to s&rve.

    The plaintiff in this action, four months after the service of the answer, served an amended summons and a supplemental complaint, without obtaining any leave of court, either ex parte or on motion. Held, that this should be set aside; that the right to serve a supplemental complaint is not an absolute one, but rests in the sound discretion of the court, and it cannot be served without leave of the court first obtained. •

      Beach v. Reynolds (58 N. Y., 1) followed.
    Appeal from an order made at the Special Term, denying a motion to vacate and set aside, as irregular and unauthorized, an amended summons and a supplemental complaint.

      Hamilton Cole, for the appellant.

      E. I. Andrews, for the respondent.
   Opinion by Brady, J.

Davis, P. J., and Daniels, J., concurred.

Order reversed, with costs.


text:
    WILLIAM O’TOOLE, Respondent, v. P. GARVIN and others, Appellants.

      Answer — amendments to—when allowed—discretion.

    Appeal from an order denying a motion for leave to amend the answer. This case was before the last General Term, held in March,  and it was then decided that the defense interposed by the defendant, that the plaintiff had carried on business under a firm title in violation of 3 Revised Statutes (5 ed., 978, §§ 42,43), not having been set up in the answer, could not be proved upon the trial. Subsequently a motion was made for leave to amend the answer, by setting up this defense, which was denied. The General Term affirmed this order, holding that the application was addressed to the discretion of the court, and that the amendment was not meritorious, the defense which the defendant sought to interpose being a purely technical one.

      E D. McCarthy, for the appellant.

      J). M. Porter, for the respondent.

       See ante, p. 92.

   Opinion by Beady, J.

Davis, P. J. and Daniels, J., concurred.

Order affirmed, with costs.


text:
    LOUISE H. SERVOSS and another, Appellants, v. WILMER S. WOOD and another, Executors of the Last Will and Testament of SILAS WOOD, Deceased, Respondents.

      Supplemental answer—statute of limitation—laches.

    Action commenced by plaintiff’s testatrix, to have a conveyance of land made to defendant’s testator, declared a mortgage. Pending a reference, all of the original plaintiffs and two of the defendants died. An amended supplemental complaint was served April 15,1872, to which an answer was served May 7,1872. This answer set up the statute of limitations. The original referee having died, the action was, by consent, again referred, and the trial commenced before the new referee. A motion was then made by plaintiffs, to have that portion of the amended answer, which set up the statute of limitations, stricken out. Held, that the motion was properly denied, on the ground of laches, a year and nine months having elapsed after service of the answer before making the motion.
    Appeal from, an order denying a motion to strike out so much of the several answers of the defendants .herein, as set up the statute of limitations.

      F. C. Gantine, for the appellant.

      Flamen B. Ga/ndler, for the respondent.
   Opinion per Curiam.

Present, Davis, P. J., and Brady and Daniels, JJ.

Order affirmed, with costs.


text:
    JOHN BRENNAN, Appellant, v. THE MAYOR OF THE CITY OF NEW YORK, Respondent.

      Principle of sta/re decisis—importance of—when departed from.

    In this action, brought by the plaintiff to recover for services rendered as an officer in the Court of Common Fleas, his appointment as such having been made under and by virtue of section 9, of chapter 382, of the Laws of 1870, the complaint was dismissed at the trial. Reid, that as, when this case was before the General Term on a former appeal, the act, under which the plaintiff was appointed, was declared unconstitutional, and from that decision no appeal was taken, the order should be affirmed, on the principle of stare decisis.

    That principle is one of great importance in the administration of justice, and should not be departed from, except in extreme cases founded upon some change in the law of the land, either by legislation or by courts of last resort, or when the court is satisfied that an erroneous conclusion has been declared.
    Appeal from a judgment entered in favor of the defendant, upon an order dismissing the plaintiff’s complaint, made at the trial of the case at the circuit.

      Framldin Bartlett, for the appellant.

      F. Delafield Smith, corporation counsel, for the respondent.
   Opinion by Brady, J.

Davis, P. J., and Daniels, J., concurred.

Judgment affirmed, with costs.


text:
    SULLIVAN FOREHAND, Appellant, v. WILLIAM P. COLLINS, Impleaded with A. J. Mellen and another, Respondents.

      Venue—Code, §§ 125, 126.
    In this case, an application was made to change the venue from the city and county of New York, to the county of Suffolk. The defendant, Mellen, resided in the city of New York, and the defendant, Collins, who alón e appeared and served an answer, resided in Suffolk county, the plaintiff and the remaining defendant being non-residents. Reid, that the venue was properly laid; that the plaintiff had, under section 125 of the Code, the option of selecting the place of trial, as between the two defendants, and that the fact that Collins was the only defendant who appeared in the action, did not affect the question. The statute does not distinguish between those who appear and those who do not.
    Appeal from an order made at Special Term, changing the venue in the action, from the city and county of New York, to the county of Suffolk.

      John Sherwood, for the appellant.
    --, for the respondent.
   Opinion by Brady, J.

Davis, P. J., and Daniels, J., concurred.

Order reversed, with costs.


text:
    EDMUND W. HOLMES, Respondent, v. SAMUEL M. PETTENGILL and JAMES H. BATES, Appellants.

      Evidence of custom, not admissible to va/ry terms of special contract.

    In an action, brought by the plaintiff to recover for service rendered in introducing customers to the defendants’ advertising agency, at the trial of which, both plaintiff and defendants swore to a special contract, under which the plaintiff did business for the defendants, although they did not agree as to its character, the following question was put by defendants’ counsel: “Are you acquainted with the custom of defendants’ house in resp ect to their dealings with canvassers ? ” and excluded by the referee. Reid, that its exclusion was proper; that evidence was not admissible to show that the house had a custom in respect to dealings with canvassers which was supposed to be more consistent with the testimony of the defendants, as to the contract, than with that of the plaintiff.
    Appeal from a judgment, entered in favor of the plaintiff, upon the report of a referee.

      Amos Q. Hull, for the appellants.

      Walter S. Cowles, for the respondent.
   Opinion by Davis, P. J.

Daniels and Westbrook, JJ., concurred.

Judgment affirmed.


text:
    THOMAS HOPE, Respondent, v. CHARLES E. LAWRENCE and another, Appellants.

      Qomermn—pledgee of stock.

    A sale by a pledgee, without authority, or for non-compliance with a demand which the pledgee has no right to make, or after a tender of the debt for which the pledge is held, is a conversion. Plaintiff sued the defendants for the conversion of certain shares of bank stock, held by defendants as collateral security to a debt due them on account of gold purchased for plaintiff. The jury found that plaintiff had given an absolute order to the defendants to sell at 217, at which price they might have sold, but, claiming the order to be discretionary, they failed to do so, and the gold was subsequently sold at 207$. Plaintiff tendered a sum sufficient to pay the balance of the account, if the gold had been sold at 217. Held, that a sale, after such tender, was a conversion, and that plaintiff was entitled to recover the value of the stock sold, after deducting the actual indebtedness, for which it properly stood in pledge.
    Appeal from a judgment in favor of plaintiff, entered upon a verdict of a jury.

      /S. C. Conable, for the appellants.

      A. R. Dyett, for the respondent.
   Opinion by Davis, P. J.

Daniels and Westbrook, JJ., concurred.

Judgment affirmed.


text:
    CHARLES E. HADDEN, Respondent, v. FRANCIS HOUGHTALING, Appellant.

      Evidence—expm't—opinion of.

    This action was brought to recover for materials and work, furnished and performed by the plaintiff in repairing defendant’s house. At the trial, defendant attempted to prove the condition of the premises, immediately previous to the time the work was performed. Held,, that the evidence was properly excluded, as irrelevant and immaterial. A witness, called by defendant, was asked by him, how many days it would take, in his opinion, to perform the work set out in the bill of particulars. Held, that the evidence was properly excluded, because it did not appear that the witness had examined the work done for the purpose of estimating the number of days’ work required to perform it.
    Appeal from a judgment in favor of the plaintiff, entered upon the report of a referee.

      Whitehead H. Van Wyoh, for the appellant.

      S. L. Maeomber, for the respondent.
   Opinion by Daniels, J.

Davis, P. J., and Beady, J., concurred.

Judgment affirmed with costs.'


text:
    Five Cases. EDWARD S. INNES, Respondent, v. MARGARET PURCELL, Impleaded, etc., Appellant.

      Appeal—pleadings—making more definite — order made by defanM—not reviewable.

    The Special Term ordered that the defendant’s answers be made more definite. After the expiration of the time to amend, the plaintiff moved, on notice, to strike out the answers, and for judgment. The defendant did not appear, and the motion was granted by default, and judgments entered for plaintiff. From these judgments defendant appealed. Held, that the order striking out the answers, having been granted by default, is not reviewable on appeal, and that, under such circumstances, the court would not regard the answers as reinstated, for the purpose of reviewing the orders to make the answers more specific.
    Motion to dismiss appeal.

      Mr. Vemill, for the motion.

      Mr. Arnoux, for the appellant.
   Opinion by Davis, P. J.

Donohue, J., concurred.

Appeal dismissed, with costs.


text:
    WILLIAM PALEN, Receiver of HENRY BANGE, Appellant, v. EZRA L. BUSHNELL, Respondent.

      Debtor—assignment of property to creditor for benefit of—recovery in such cases— arniownt of—by receiver.

    When the evidence shows that the debtor transferred property to his creditor not only to pay the debt due him, but for the purpose of preventing his other creditors from appropriating any part of it to the payment of debts due themselves, Jield, that the creditor should be required to pay over all the property received in excess of his claim.
    Appeal from judgment, entered on the report of a referee in the Supreme Court, in favor of defendant.

      F. B. Sherman, for the appellant.

      John U. Strahan, for the respondent.
   Opinion by Daniels, J.

Davis, P. J., and Donohue, J., concurred.

Judgment reversed; new trial ordered.


text:
    EDWARD K. WINSHIP, Appellant, v. CAROLINE F. WINSHIP, Respondent.

      Discretion.

    Appeal from an order vacating an order entered, discontinuing the action.
    The General Term held that the application to vacate the order was addressed to the favor and discretion of the court, and that as there was sufficient in the papers to warrant the conclusion, that the defendant had consented to the discontinuance, under a misapprehension on her part, the order was properly granted.

      Hodges & Meeker, for the appellant.

      H. O. Denison, for the respondent.
   Opinion by Daniels, J.

Davis, P. J., and Brady, J., concurred.

Order affirmed, with costs.


text:
    ANTHONY POLLOK, Respondent, JOHN S. SHULTZE, as Receiver of the Novelty Iron Works.

      Liability of corporation for contraéis of its directors.

    The president and vice-president of the Novelty Iron Works, having full authority to employ such persons, as, in their judgment, were necessary in and about the business of the company, and the company having resolved to enter upon the business of manufacturing water meters, of the kind invented by one Van Duzen, held, that it was within the scope of their authority to secure a patent in the name of Van Duzen, of his invention, and, for this purpose, to employ plaintiff to counsel and advise the company in relation to the said meter, and to obtain a patent therefor,-and that the corporation were liable for his services, rendered in pursuance of such employment.

      Appeal from a judgment, entered in favor of plaintiff, on the report of a referee.

      John, N. Whiting, for the appellants.

      B. F. Lee, for the respondents.
   Opinion by Davis, P. J.

Daniels and Westbrook, JJ., concurred.

Judgment affirmed.


text:
    In the Matter of — an Attorney and Counselor-at-Law.

      Attorney—pi’ofessional misconduct — disqualified from practicing.

    Respondent appeared in this matter, in answer to an order to show cause why his name should not be stricken from the rolls, and he be disqualified from practicing his profession, or otherwise punished for professional misconduct. The court, after an examination of the evidence, concluded, in view of the respondent’s positive denials and explanations, that it was not sufficient to justify the respondent’s degradation and punishment; that the proceeding was penal, and should be sustained by evidence free from serious doubt.
   Opinion by Daniels, J.

Davis, P. J., and Donohue, J., concurred.

Motion denied.


text:
    MARIAN G. CATLIN, Respondent, v. WILLIAM H. CATLIN, Appellant.

      ■Divorce —»motion to reopen case — denied.

    Appeal from an order, denying a motion to reopen the case before the referee, and permit the defendant to answer. The action was brought to obtain a divorce, on the ground of adultery. The court affirmed the order, on the ground that the affidavit of defendant was entirely insufficient, and was not even accompanied by an affidavit of merits.

      M. P. Stafford, for the appellant.

      J. T. Davies, for the respondent.
   Opinion by Davis, P. J.

Beady and Daniels, JJ., concurred.

Order affirmed, with costs.


text:
    JANE PATTERSON, Executrix, etc., Respondent, v. WILLIAM PATTERSON, Appellant.
    Set-off— against executors — § 33, tide 3, chapter 6, pa/rt 3, Revised Statutes.

    In an action brought by an executor upon a cause of action arising after the decease of the testator, the defendant cannot set off a demand against the testator, even although such demand existed at the time of the testator’s death.
    In order to authorize such set-off, the demand must not only be sued by the executor, but it must be upon a cause of action which had accrued at the time of the decease of the testator or intestate.

    Appeal from a judgment in favor of plaintiff.

      John Townshend., for the appellant.

      Sterne Chittenden, for the respondent.

       Merritt v. Seaman, 6 Barb., 330; Id., 6 N. Y., 168, followed.

   Opinions by Daniels and Lawrence, JJ.

Davis, P. J., concurred.

Judgment affirmed.


text:
    PHILO T. RUGGLES, as Receiver, etc., Appellant, v. ORLOW W. CHAPMAN, as Superintendent of the Insurance Department, Impleaded, Defendant and Respondent.

      Insurance Depaiimemt—securities deposited with—power of Superintendent—§ 6, chapter 463, 1853.
    By section 6, of chapter 463, of Laws of 1853, all life insurance companies are required to deposit with the Comptroller of the State of New York, the sum of $100,000 in certain stocks and securities in the said act specified, to be held as security for policy-holders in the company, the seventeenth section making special provision for the application of such securities by proceedings to be instituted in the Supreme Court by the Comptroller, through the Attorney-General. By chapter 366, of the Laws of 1859, all the powers and duties created and given, to the Comptroller by the act of 1853, were transferred from that officer to the Superintendent of the Insurance Department. Held,, that the deposited securities are a special fund for the security of policy-holders, primarily, and that their rights may be protected by the Superintendent, in the mode pointed out by the act of 1853, and that that officer is at liberty to hold the securities and enforce or dispose of them under proceedings authorized by the court, and is not bound to hand them over to a receiver appointed by a local tribunal, under the Revised Statutes, for the benefit of general creditors.
    Case submitted upon an agreed state of facts, in pursuance of section 372, of the Code.

      John L. Uill, for the plaintiff and appellant.

      Fred. II. Betts, for the defendant and respondent.
   Opinion by Davis, P. J.

Daniels and Brady, JJ., concurred.

Judgment ordered for the defendant.


author: Miller, P. J.

text:
    JOHN WARDROP, Respondent v. JESSIE DUNLOP, as Executrix, and another, Appellants.

      Promissory note—possession of, by agent—payments to agent upon—when binding upon his principal—Ratification.

    The mere fact that a person, claiming to he the agent of the payee of a promissory note, has the same in his possession, unindorsed, does not confer upon him an apparent authority to receive payments thereon. Doubleday v. Kress, 50 IT. Y., 410, followed. The cases on this subject collated and distinguished.
    An agent who had in his possession a promissory note, received a payment thereon without authority from his principal, who, when informed of the payment, by the agent, remained silent for nearly three years, allowing the money to remain in the agent’s hands. At the end of this time, he wrote to him about the note, and, in computing the amount due thereon, allowed the payment so made. During this time other payments had, unknown to the principal, been received by the agent. Held, that, by his letter to the agent, he was precluded from denying his authority to receive the first payment, and that by ratifying this act of the agent, and by failing, after knowledge of the first payment, to notify the maker of the note that the agent had no authority to receive payments, he conferred upon him an appa rent authority to receive the subsequent payments.
    Appeal from a judgment entered in favor of the plaintiff, upon the report of a referee, upon a claim against the testator’s estate, referred under the statute.

      On the 19th June, 1854, Archibald A. Dunlop gave his promissory note to John Wardrop, payable to his order, for $3,600, with interest at six per cent; and John Wardrop, during the same year, when leaving this country for Scotland, where he had previously and has since resided, left the note with his cousin, Robert Wardrop, of Newburgh. Robert Wardrop gave a receipt for the note, in which he said it was left with him for safe-keeping, but Dunlop had no knowledge or notice of such receipt.
    In 1856, a payment was made on the note, by Dunlop, to Robert Wardrop, of $342, which was sent by Robert Wardrop to the plaintiff; and, in 1858, another payment of $432, was made in like manner through Robert Wardrop.
    In 1859, Robert Wardrop died, and his son, William, as his administrator, took possession of the npte, which he found among his father’s papers. In January, 1860, Mr. Dunlop remitted to the plaintiff, $432 interest on the note.
    On the 18th of September, 1860, the plaintiff wrote to William Wardrop, and, among other things, said: “I write to Mr. Dunlop by the same mail, to make up a statement of the interest due, up to date, on the due-bill that was in your father’s possession, and get it remitted, and informed him that I authorized you to give a receipt for the amount. The due-bill itself, will you be kind enough to retain in your possession until you hear from me ?”
    By Dunlop’s letters to plaintiff, of December 3, 1860, and May 2, 1867, further time for payment was asked, on account of the condition of the country and the high rate of exchange, and payment was delayed. On the 26th of December, 1866, the plaintiff wrote to the testator as follows: “ The war in America having deranged monetary matters so much, I did not think of writing about it; but, if convenient, you might send the interest due, which is, I think, since January, 1860; but if you think it would be more advantageous for me and equally convenient for yourself, you might remit me a due-bill for the amount.” He also wrote, on the same day, a letter to William Wardrop, in which he says : “I have wrote to Mr. Dunlop by the same mail, and expect an answer from him soon. If you will keep the due-note until I hear from him and write you, good and well; but if you are determined to have it out of your possession, you can mail it.”

      On the 2d of May, 1867, Dunlop wrote to the plaintiff a letter, in which, after acknowledging the receipt of plaintiff’s letter of December 26, 1866, he says: “The exchange between the two countries just now is so great, it would be much against me to remit the amount of the note or interest—gold, to-day, being about $1.40—but I will send a due-bill for the interest as soon as I ascertain the amount.”
    In February or March, 1869, William Wardrop came to Dun-lop’s house, at West Troy, and applied to him to pay the interest on the note, which he then had and showed to Dunlop, together with the letter of September 18th, 1860. Dunlop paid no money then, but, on the 15th of May, 1869, paid to William Wardrop the sum of $1,432, which was indorsed upon the note as $1,000 on principal, and two years’ interest to January 19th, 1862, $432.
    Within a few days after receiving the foregoing sums, William Wardrop wrote to the plaintiff, stating the amount received by him upon the note. After the payment of May, 1869, William collected and received of Dunlop and of his executor—Dunlop having died in the meantime—different sums, amounting in all to $2,924, which were indorsed upon the note when paid. The plaintiff did not answer William Wardrop’s letter, advising him of the payment of $1,432; but, in March, 1872, in answer to a letter of William, informing him of Dunlop’s death, among other things, wrote as follows: “ I shall see about getting the necessary documents prepared and sent out to enable you to collect the amount which I see was, after the $1,000, and two years’ interest paid to you was at January 19th, 1869, $4,112, and interest due from that date.”
    The plaintiff had no notice of any payments being made after May, 1869, and in August, 1872, brought this action. The referee found in favor of the plaintiff for the whole amount claimed, $6,553.64. The report was confirmed at Special Term, judgment entered, and the defendant appealed.

      Amasa J. Parker, for the appellant.
    The possession of the note conferred upon Wardrop, an authority to receive payments thereon. (Bridenbecker v. Lowell, 32 Barb., 9; Story on Agency, §§ 93, 94, 228, 81; Hutchings v. Munger, 41 N. Y., 158; Williams v. Walker,
      2 Sandf. Ch., 325; Reaff., 34 Barb., 613; Paley on Agency, by Lloyd, § 274.)

      H. W. Peokham and Edwa/rd Wade, for the respondent.
    No apparent authority was conferred upon Wardrop to receive payments. (Doubleday v. Kress, 50 N. Y., 410.) The plaintiff never ratified his acts. (Dunlop’s Paley’s Agency, 345, note h, 100 ; id., 387; note 13, Index, 454; Amory v. Hamilton, 17 Mass., 103.)
   Miller, P. J.

The question upon this appeal, is, whether William Wardrop had authority to receive the payments made upon the note of Archibald A. Dunlop, deceased, which the plaintiff left with Robert Wardrop. It appears from the receipt given by Robert Wardrop to the plaintiff, that it was left for safe-keeping with William’s father, in 1859, and passed into William’s possession without the knowledge or authority of the plaintiff. The possession thus acquired, of itself, gave W illiam no right to receive money on the note, and if any authority to do so existed and can be upheld, it must arise by virtue of power otherwise conferred. The defendants claimed that William was authorized by the letter sent to him from the plaintiff, of September 18th, 1860, in which he states that he had written to Dunlop to make up a statement of the interest on the note, and get it remitted, and informed Dunlop that he had authorized William to give a receipt for the amount, and requested him to retain the due-bill until he heard from the plaintiff. This letter conferred no authority to receive the money, but merely authorized William to give a receipt for the same, upon its being remitted by Dunlop. The letter of the plaintiff to Dunlop, on the 26th of December, 1866, requesting Dunlop to send the interest or a due-bill for the amount, and the answer of Dunlop, of May 2, 1867, in which he promised to send a due-bill for the interest, also showed that neither of them had understood that William Wardrop had authority to receive payments on the note; nor does the letter of the plaintiff to William, of December 26, 1866, confer any authority upon the latter to receive the money. In fact, there is no evidence showing such authority, up to the time when the first payments were made, or afterward.

It is said that there was an apparent authority to receive the payments, which is as obligatory as if there was actual authority. This position is based upon the assumption ■ that William had possession of the note, and therefore, and from that fact, was authorized to receive payments upon it. Some of the cases to which we have been referred, appear to look in that direction; but the recent case of Doubleday v. Kress holds to the contrary. In the case cited, an action was brought by the plaintiff to recover' the amount of a promissory note made by the defendant, and payable to the order of the plaintiff. The plaintiff’s son-in-law, one Murray, upon the representation that the defendant wished to pay the interest and renew the note, obtained the same of her, and, by means of a forged order attached, procured the money on the same. It was held that the mere possession of the note by the assumed agent, Murray, unindorsed, without any other sustaining facts, was not sufficient to authorize payment to him. The case cited, differs somewhat, and is far stronger as to the possession than the one at bar; for, while in the former, the note came lawfully into the hands of Murray, with authority to receive the interest and to take a new note, here, William Wardrop had no authority whatever from the plaintiff, and received the note without the approval of the plaintiff, and only because he found it among his father’s papers.

In the case of Bridenbecker v. Lowell which is relied upon by the defendant’s counsel, there was evidence of express authority to do certain acts, and the remarks of Allen, J., at page 17, as to the presumption arising from the authority conferred, to assume the apparent right of disposing of property, and the effect of being put in possession of notes with apparent authority in respect to them (which was not the case here, as William Wardrop took possession without the plaintiff’s knowledge or consent), while Entirely appropriate to the case then under consideration, are not, I think, applicable here, or in conflict with Doubleday v. Kress. So also, the observation of the learned judge, in Hutchings v. Munger, as to the effect of having possession of notes for the purpose of receiving the money due thereon, must be considered in connection with the facts there presented, and do not, I think, apply to a case where there is no evidence of any authority whatever. The cases of Williams v. Walker and Hatfield v. Reynolds sustain the principle, that, where one employs an attorney to make a loan of money, and to take a bond and mortgage from the borrower, and, after the loan is made, intrusts the attorney with the possession of the bond and mortgage, and permits him to receive and indorse payment from time to time, until these payments extinguish the principal, the attorney will, in fact and in law, be held to be authorized to receive the latter as well as the former payments, and, if he omits to pay it over, the loss must fall upon the mortgagee.

This is not exactly like the case at bar, because there was a direct authority to receive the payments, and the attorney was acting within the scope of his authority. In view of the eases referred to, it is difficult to see how any actual or apparent authority from the plaintiff, can be inferred from the fact of the note’s being in the possession of William Wardrop, under the circumstances, and the plaintiff was not bound by his acts, unless, by some act, he ratified or acquiesced in the payments which were made, and thus conferred authority.

It appears that, after the payment of $1,432, in May, 1869, with full • knowledge of that fact and notice that it had been received, the plaintiff allowed William Wardrop to use the money for nearly three years, without any objection whatever on his part, and thus acquiesced in what had been done by him. He was informed that this money was received, soon after it was paid, and made no reply until March, 1812, when he wrote to William, that, after deducting the $1,000, and two years’ interest paid to him, $4,112 and interest were due to him. There was an acknowledgment by the plaintiff that the amount of $1,432 had been properly paid; that he was willing to allow it as a payment, and only claimed what remained. This, I think, precludes him from insisting that a larger sum was due than he named, or that the payment made was not authorized. It • was far more than silence, and a direct admission that he claimed no more, which he cannot now retract or recede from. He is clearly bound by this declaration; if not as a ratification of the act of his agent, as an acquiescence in what had been done by a person who had assumed to act on his behalf, when the acts of the agent were brought to his knowledge, which is held to be equivalent to express authority. The plaintiff, having thus sanctioned the payment of $1,432, and thereby conferred authority for that, I am inclined to think that authority must be inferred as to the subsequent payments. It can scarcely be maintained that he could thus sanction and authorize one payment, without conferring an implied authority to receive others. If Dunlop or his representatives had been notified that the plaintiff had thus sanctioned one payment, there could be no question as to the power of the agent to receive others. The plaintiff, however, was informed of it. He did not repudiate it, or notify Dunlop that, in fact, the money had been paid without authority. By his silence, Dunlop or his representatives, who no doubt acted in good faith, were strengthened in their belief that the money was paid to a duly authorized agent.

Had the plaintiff never signified his approval of the payment referred to, his silence might, perhaps, be excused; but, taking the fact and the acquiescence together, and as the case stands, it must, be considered that the plaintiff acquiesced in all the payments which were made.

As the referee was wrong in not deducting the payments made to William Wardrop, the judgment must be reversed, and a new trial granted, unless the plaintiff stipulate to deduct said payments and interest; in which case the judgment is affirmed, without costs of appeal to either party.

Present—Miller, P. J., Boardman and Bookes, JJ.

Ordered accordingly.

       50 N. Y., 410.

       32 Barb., 9.

         41 N. Y., 158.

       2 Sanf. Ch. R., 325.

       34 Barb., 613.

       2 Kent, 613.


author: Miller, P. J.:

text:
    No. 1.
    SAMUEL BONNELL, Jr., Respondent, v. GEORGE M. WHEELER, CHESTER GRISWOLD and JACOB W. HOYSRADT, Impleaded with others, Appellants. ELI W. BLAKE, Respondent, v. SAME DEFENDANTS, Impleaded, etc., Appellants. SAMUEL BONNELL, Jr., Respondent, v. CHESTER GRISWOLD, JOHN W. GRISWOLD and ELIZABETH H. GRISWOLD, Executors, etc., of JOHN A. GRISWOLD, Deceased, Appellants. ELI W. BLAKE, Respondent, v. SAME DEFENDANTS, Appellants.
    No. 2.

    No. 3.
    No. 4.

      Hemwrrer—misjoinder of causes of action — Trustees of manufacturing corpm'ation— failw'e to file report—false report—assignment of cause of action against—>Sections 13, 15, chapter 40, 1848.
    In a suit brought by a creditor of a mining corporation, created under the general act, chapter 40, Laws of 1848, against the trustees thereof, held, that causes of action, arising under section 13, for failure to file a report, and under section 15, for filing a false report, are properly united; each of them is for a liability somewhat in the nature of a statute penalty, and, virtually, is an action on contract for the recovery of money, and both of them arose out of the same transaction.
    The first cause of action set out in the complaint, was for a failure to file a report, as required by section 13 ; the second, for filing a false report in violation of section 15, alleged that the defendants made and filed “a certificate or report, a copy of which is hereunto annexed, marked B,” and that the defendants signed the same, knowing it to be false; the copy of the certificate annexed to the complaint, was not signed by all the defendants. Held, that a demurrer, on the ground that the causes of action, united in the complaint, did not affect all the parties to the action, was well taken ; that the allegation that the certificate was signed by all the defendants, must be considered as restricted and confined to what appears upon the face of the certificate, a copy of which was annexed to the complaint.

      The cause of action against the trustees of the corporation, given by the statute to the creditors thereof for a violation of its provisions, is assignable, and may be enforced by the assignee of the debtor.
    The third cause of action was for an alleged conspiracy on the part of the defendants to form the corporation, and that by fraud and misrepresentations, the plaintiffs were induced to become creditors of the corporation. Held, that it was properly joined with the others, as they all related to the same general transaction.
    Appeals from orders made by Mr. Justice Bookes, overruling the°defendants’ demurrers, in each of the. above-entitled actions, to the amended complaints therein. ' The plaintiffs therein respectively claim to be creditors of a company, or corporation, formed under an act of the legislature of the State of New York, entitled, “ An act to authorize the formation of .corporations for manufacturing, mining, mechanical or chemical purposes,” passed February 17th, 1848, and the acts amending the same, and known as the Iron Mountains Company of Lake Champlain. The claim of the plaintiff, Samuel Bonnell, Jr., is alleged to amount to $5,511.66, and that of the plaintiff, Eli W. Blake, is alleged to amount to $1,247.40.
    Suits Nos. 1 and 2, are prosecuted to recover from the defendants, the amount of the said plaintiffs’ alleged claims, respectively, on the alleged ground that the' said defendants, as the surviving trustees of said company, have become liable to pay the same.
    And suits Nos. 3 and 4, are prosecuted to recover the same identical claims from the defendants therein named, as the representatives of John A. Griswold, deceased, who, in his lifetime, was also a trustee of said company, upon a- portion of the grounds set forth in the two first actions.
    The complaints are substantially alike, except in the averments descriptive of the plaintiffs’ claims. The plaintiff, Bonnell, was not an original creditor of the Iron Mountains Company, but acquired his claim, if at all, by transfer or assignment from a corporation, styled the “ Birmingham Iron Foundry,” which corporation, it is alleged, performed work and labor, and furnished materials, whereby it became a creditor of said first-mentioned company, subsequently transferring its claim to the plaintiff, Bonnell.
    In the first and second actions, the first counts, respectively, set forth the organization, in the month of August, 1869, of the said Iron Mountains Company, under the provisions of the act aforesaid, and that the defendants and said John A. Griswold (since deceased) were duly appointed, and acted, as the trustees of said company for the first year; that during that period, they omitted to make, publish or file a report, within twenty days from the first day of January, 1870, pursuant to the provisions of the twelfth section of the aforesaid act; by means of which alleged omission, it is claimed that the defendants became liable to pay the plaintiffs’ claims, which are also, respectively, stated in said counts.
    The second counts, after referring to the allegations in the first counts as to the incorporation of said company, respectively, set forth a copy of the charter, or certificate of incorporation thereof, referred to as annexed, and state that the said defendants and the said John A. Griswold, while acting as such trustees as aforesaid, did, on the 13th day of January, 1870, make and file in the office of the clerk of the county of Essex, a certificate or report, a copy of which is made a part of the complaints (referred to' as annexed), and which, it is averred, the said defendants and the said John A. Griswold, in said month of January, 1870, published in the Elizabethtown Post, a newspaper published in said county of Essex; the said certificate or report being, as said plaintiffs respectively allege, false in a material representation, and known by the said defendants and the said John A. Griswold so to be, namely, in-stating that the capital stock of said company had been paid in, in full, when, as the plaintiffs respectively aver, such was not the fact; and that, therefore, by force of the fifteenth section of said act, the said defendants also became liable to the plaintiff, to the amount of their respective claims.
    The third counts, after referring to the incorporation of said company, and to the fact that the defendants and said John A. Griswold were the trustees thereof, as aforesaid, respectively' set forth that prior to the organization of the said company, the said defendants and the said John A. Griswold entered into an alleged fraudulent scheme, combination and conspiracy, to form said corporation as it was formed, and to fraudulently cause to be transferred thereto, certain lands owned by a corporation, styled the “ Kingdom Iron Ore Company,” in which company, it is alleged, the defendants and said John A. Griswold were interested as stockholders and officers, and to have the stock of the new company issued to an amount largely in excess of the value of said lands; and to have the whole of said stock paid to, or for the benefit of, said Kingdom Iron Ore Company (so-called) in part payment of said lands. The counts then proceed with general allegations of acts and doings on the part of said defendants and said Griswold, in furtherance of said alleged scheme and conspiracy, and state, among other things, that the plaintiffs were thereby induced to become creditors of said corporation, winding up with allegations to the effect that the said alleged omission, set forth in the first counts, and the alleged making of said alleged false report, set forth in said second counts, are and were but part and parcel of said alleged scheme or conspiracy, by means of which alleged doings, it is claimed, the defendants became liable to pay the claims of the plaintiffs, respectively.
    The defendants, George M. Wheeler and Chester Griswold, in one demurrer, severally demur to said amended complaints, and to each of them, upon various grounds, which are stated in the opinion, and the defendant, Hoysradt, also demurs separately, upon substantially the same grounds.

      Wm. G. Holbrook, for the appellants.
    The first and second causes of action were improperly united. (Smith v. Hallock, 8 How., 73; Sweet v. Ingerson, 12 id., 331.) The causes of action united, must affect all the parties to the action. (Warth v. Radde, 28 How., 230; Smith v. Geortner, 40 id., 185 ; Hess v. Buffalo & N. Y. R. R., 29 Barb., 391.) The cause of action against the trustees was not assignable. (O'Donnell v. Seybert, 13 Serg. & Rawle, 56; Shoemaker v. Kelly, 2 Dall., 213; Weyburn v. White, 22 Barb., 82; Merchants' Bank v. Bliss, 35 N. Y., 412; Miller v. White, 50 id., 139; Robinson v. Weeks, 6 How., 164; Lamphere v. Hall, 26 id., 509; Yertore v. Wiswall, 16 How., 8-14; Quin v. Moore, 15 N. Y., 435, 436.)

      A. Pond, for the respondent.
    The first and second counts are properly united. (Merchants' Bank v. Bliss, 35 N. Y., 412; McCown v. N. Y. C. R. R., 7 Lans., 75; City of Brooklyn v. Cleves, H. & Den., 231; Deyo v. Rood, 3 Hill, 527; Vallance v. King, 3 Barb., 551.) The third cause of action was properly united with the others. (Robinson v. Flint, 16 How., 240; Vermeule v. Beck, 15 id., 333; Badger v. Benedict, 1 Hilt., 414; Borst v. Corey, 15 N. Y., 505; Lattin v. McCarty, 41 N. Y., 107; Wadley v. Davis, 63 Barb., 500.)
   Miller, P. J.:

In the first and second actions, I think that the first and second causes of action were properly united. Each of them was for a liability somewhat in the nature of a statute penalty, and, virtually, an action on contract for the recovery of money. They were therefore properly joined, under section 167, subdivision 2, of the Code. The fact that one of the causes of action is for not making a report within twenty days, as required by section 12, and the second, for making a false report, does not, I think, alter the case. Each one of the counts contains a separate and an independent cause of action, and either of them may be upheld, if the evidence upon a trial warrants it. They are not necessarily inconsistent with each other or contradictory. Even if a report be filed, which is false within section 15 of the act cited, it by no means follows that there has been a compliance with section 12. A report which is false, can scarcely be said to be a report which is required by section 12, and I am inclined to think that when such is the case, an action may be upheld under section 12, if, for any reason, the proof upon a trial would not warrant a judgment, under section 15.

Mor, in my opinion, is there any question but that each of these causes of action, may arise out of “ the same transaction or trans actions connected within the same subject of action,” within section 167, subdivision 1. The subject of the action of the plaintiff, is the debt, and the transactions connected with it, are the unlawful acts of the defendants. These acts arise out of transactions which relate to, and form a part of, the subject of the action. If, in accordance with the opinion in Adams v. Bissell, we disregard the last clause of subdivision 1 of section 167, which I am not prepared to do, I am nevertheless satisfied that each of the causes of action, arises out of the same transaction, and may be maintained. If these views are correct, the first ground of demurrer cannot be upheld.

It is insisted that there is a misjoinder of the first and second causes of action, because they do not affect all the defendants, viz.: Hoysradt, Corning and Burleigh, who were not signers of the alleged false report, set forth in the second cause of action in the first two cases; and that there is a misjoinder of the third cause of action with the first and second, for the same reason. These grounds are stated, also, in the second and sixth grounds of demurrer of the defendants, Wheeler and Griswold, respectively, and in the separate demurrer of the defendant, Hoysradt. The Code provides that the causes of action, united, “must affect all the parties to the action,” and the objection of a misjoinder may be taken advantage of by demurrer.

It is claimed by the plaintiffs, that the complaints allege that all the defendants did sign the report, and the demurrers admit the allegation to be true. The second count in the two cases, avers that the company was duly organized and incorporated, as stated in the first count; that the defendants and Griswold were duly named as trustees, and, while such trustees and acting as such, having accepted the same, the “defendants and said John A. Gris-wold, on the 13th day of January, 1870, made and filed in the Essex county clerk’s office ” * * * “ a certificate or report, a copy whereof is hereunto annexed, marked B.” It also alleges that “ said certificate and report was the only report made, filed and published; that said report was false,” etc., stating where. It then proceeds to state, “ that said defendants and the said John A. Griswold signed said certificate, knowing it to be false as hereinbefore stated,” etc. The certificate annexed does not contain the names of the three defendants hereinbefore mentioned. The allegation that they did sign, refers to “ said certificate,” meaning the one annexed, which negatives the allegation that such was the fact. If the last allegation can be considered as in conflict with what had previously been averred, then the reading of the report or certificate annexed, must, I think, determine how the fact is; and, although verbally a contradiction, yet, as it refers directly to the report, the allegation must be considered as confined and restricted to what appears upon the face of the certificate, a copy of which is annexed; that is, that Griswold and others did sign it, but that the other three defendants ■ did not. It appears, then, that the report and certificate, set forth, was not signed by either of them, and hence they could not be held responsible for its being false. It is no answer to say that the complaints only purport to have annexed to them, a copy of the report and not of the signatures, for it would lack the essential qualities of a report unless it was signed. Besides, the names attached, constitute a part of the report; are first mentioned at its commencement as being trustees, and the report purports to have been sworn to by each one of the signers, before a notary. It is plain, therefore, that there is a misjoinder of actions as to the first and second causes of action and also of the third, which is based on the first and second; and, in this respect, the demurrers are well taken.

The defendants’ counsel further insists that the complaint in the Bonnell case, does not 'state facts sufficient to constitute a cause of action, because it shows upon its face that Bonnell was not. an original creditor, but derives his claim only by assignment or transfer from the Birmingham Iron Foundry.” "In other words, that the claim was not assignable by the trustees of the “ Birmingham Iron Foundry,” so as to transfer to Bonnell any cause of action against the defendants, which arises under the twelfth and fifteenth sections of the manufacturing act, by virtue of which a recovery is claimed. The provisions referred to, provide for a liability of trustees or officers of a company, for all debts existing or contracted, without limiting or restricting such liability to the creditor alone, and extend the remedy, I think, for the collection of the debt, against the trustees or officers who neglect their duty, and fail to comply with the law. They do not change the nature of the debt, for which the company was originally, and continues to be, liable nor invest it with a character which presents an assignment of the same,, which carries’with .it all the incidental remedies given by statute. The act embraces all the debts of the company,” which, I think, means debts due, not only to the original creditor, but to such person as may be entitled to the same by virtue of a lawful assignment. Regarding the action as brought upon the contract, and the remedy under the statute, as merely incidental, I am inclined to think that it stands precisely in the same position as any other action of a similar character, which has been lawfully transferred to another party. But, even if this position may be doubted, the plaintiff’s cause of action may be considered as embraced within the rule laid down in some of the reported cases, to the effect that a cause, of action against a vendee of land, for fraudulent representations as to an incumbrance, or an action for fraudulent representations in obtaining money or property, survives to and against the personal representatives, and an assignee may sue thereon.

Although the first and second causes of action, set forth in the plaintiff’s complaint, do not, perhaps, distinctly show an injury arising from the defendants’ wrongful acts, or which tends to affect, impair or diminish the estate of the Birmingham Iron Foundry,” or of the plaintiff, yet it is quite apparent that the unlawful acts of the defendants may have such an effect. The law declares that such an injury may have accrued from the facts stated, and it is a fair and legitimate inference, I think, that the failure of the defendants to comply with the provisions of the statutes cited, may have occasioned and did cause that injury, and seriously affected and impaired the property and estate of the plaintiff or his assignor. It is also a presumption of law, that the debt was contracted in the first instance, and an assignment of the same made with full knowledge of the remedies under the statute, and with entire reliance upon the same. In my opinion, the case now presented, bears no analogy to an action brought to recover damages for personal injuries, which is not assignable for the reason that no one has a property in the personal sufferings of another, and therefore the acts complained of cannot injuriously affect, impair or diminish his estate. The cause of action here, clearly, goes beyond the person. It is a debt incurred for work and labor performed and materials furnished, which, if not paid, diminishes the property of the creditor or of his assignee. If the causes of action are regarded as brought for mere penalties, then—some of the later cases hold—the right of action is assignable, and not a mere personal privilege. As the statute does not prohibit the assignment of a claim like that for which the plaintiff seeks to recover, but appears to favor the right to assign, and as such right is not in conflict with- any principle of law, and is upheld by the reported cases, my conclusion is, that the grounds of demurrer, last considered, are not well taken, except as to the defendant, Hoysradt, who, as we have already seen, was not a signer of the certificate, and therefore cannot be made liable under the second cause of action.

There was no misjoinder of the third cause of action with the first and second causes of action, so far as the substance of the same is concerned, and I see no difficulty in regard to them. The question presented in regard to this branch of the case, was passed upon in Arthur v. Griswold, and it is there held, that, although the causes of action are different, they are to be deemed properly united and they relate to the same general transaction.

In the third and fourth actions, the complaints against the execu- . tors are of the same general character, as in the first and second actions, except that the cause of action alleging a conspiracy, being the third cause of action in these two cases, is omitted. The observations already made cover all the objections urged, and, as none exists which is fatal to a recovery, the demurrer must be overruled as to these.

In the first and second actions, the order appealed from must be reversed, with ten dollars costs; and the defendants are entitled to judgment on the demurrer, with leave to the plaintiff in each to amend, upon payment of costs, within twenty days after a service of a copy of the order herein. In the third and fourth actions, the order must be affirmed, with ten dollars costs. Judgment must be ordered for the plaintiffs upon the demurrer, with leave to the defendants to answer within twenty days after service of a copy of the order herein, and upon payment of costs.

Present—Miller, P. J., and Boardman, J.

Ordered accordingly.

       McCoun v. The N. Y. C. & H. R. R. R. Co., 7 Lans., 75.

       S. L. of 1848, chap. 40.

       28 Barb., 386.

      § 167.

       Warth v. Radde, 28 How. Pr., 230 ; Smith, v. Geortner, 40 id., 185; Hess v. Buffalo & N. Y. R. R. Co., 29 Barb., 391; Palmer v. Davis, 28 N. Y., 246.

       S. L. of 1848, chap. 40, pp. 54, 57.

       Haight v. Hayt, 19 N. Y., 464; Byxbie v. Wood, 24 N. Y., 607; Graves v. Spier, 58 Barb., 349, 385; Johnston v. Bennett, 5 Abb. P. R. (N. S.), 331.

       Meech v. Stoner, 19 N. Y., 26; McDougall v. Walling, 48 Barb., 364

         See MS. opinion of Church, Ch. J., in Court of Appeals.


author: Boardman, J.:

text:
    THOMAS P. DEYOE, Respondent, v. THE VILLAGE OF SARATOGA SPRINGS, Appellant.

      Chapter 763, Lams of 1873 — Commissioners of water-works appointed under—village responsible for acts of—Streets—dmties of village as to repairs of.

    The plaintiff was injured by driving into a ditch in one of defendant’s streets, made by the commissioners of water-works, for the purpose of making repairs to pipes, etc., and which had been left unguarded. Held, that the defendant was liable; that the commissioners were subordinate to the defendant, to which the water-works belong, and that the commissioners are merely the agents of the defendant, in their construction and maintenance.

      Semble, that even if this were not so, the defendant would be liable, on the ground that it was its express and exclusive duty to keep in repair the streets of the village, and that as the superintendent of the water commissioners, under whose direction the work was done, was also the superintendent of streets, his knowledge was the knowledge of defendant.
    Appeal from a judgment, entered upon the verdict of a jury, after a motion for a new trial made by the defendant upon the minutes of the judge presiding at the trial.
    Plaintiff, with his horses and carriage, drove into an open ditch in one of defendant’s streets, whereby he suffered damages. The ditch had been opened by the commissioners of water-works, for the purpose of making repairs to pipes, etc., and had been left, unguarded by them during the night, whereby plaintiff was injured. The commissioners of water-works were appointed by the legislature, and to such commissioners is given, by the act, the management and control thereof. The defendant’s superintendent had the supervision of the streets and highways of the village, subject to the control of the trustees, who possess the usual powers and duties as to the streets. Such superintendent was also foreman or superintendent of the commissioners of water-works, and, as such, caused this excavation in the street to be made.
    At the close of the plaintiff’s evidence, defendant moved for a nonsuit, upon the ground, substantially, that if any cause of action had been proved, it was against the commissioners of water-works and not against the village of Saratoga Springs. The motion was denied, and defendant excepted.

      P. H. Cowen, for the appellant,
    cited Hutson v. Mayor, etc. (9 N. Y., 163); Davenport v. Ruckman (37 id., 568); Wendell v. Mayor, etc. (39 Barb., 329); Bailey v. Mayor, etc. (2 Denio, 433-442); Williams v. Village of Dunkirk (3 Lans., 44); Bank of Commonwealth v. The Mayor (43 N. Y., 188).
    Jo/m Foley, for the respondent,
    cited Bailey v. The Mayor, etc., (3 Hill, 531); Rochester White Lead Co. v. of Rochester (3 N. Y., 463); Starrs v. of Utica (3 Smith, 104); Barton v. of Syracuse (37 Barb., 292); Hyatt v. Trustees of Rondout (44 Barb., 385); Diveny v. City of Elmira (51 N.Y., 506); Wendell v. Troy (4 Keyes, 272); Davenport v. Ruckman (37 N. Y., 568).

       Laws of 1872, vol. 2, p. 1819.

   Boardman, J.:

Before the act of 1872, the water-works of Saratoga Spa had been substantially completed, except extensions. By that act, five water commissioners were appointed, to whom were given the management and control of the water-works and their appurtenances. The defendant’s trustees appointed, or were to appoint, their successors. The commissioners have power to appoint a superintendent. The trustees are required to raise money by tax, in accordance with the commissioners’ estimate, and pay the same to the commissioners. The commissioners are required to make a report of their proceedings to the trustees when required. By a vote of two-thirds of the trustees, an action may be begun against the commissioners for any misfeasance, malfeasance, or default in the discharge of their duties. The defendant’s trustees are further required to issue $50,000 of bonds, for the extension and completion of the water-works and paying indebtedness therefor, to be delivered to said commissioners. By the acts of 1872 and the acts of 1868, chapter 557, 1869 chapter 264, and 1870, chapter 31, it is apparent that the water-works belong to, and are the property of, the defendant, and that the commissioners are merely the agents of the defendant in their construction and maintenance. The commissioners are responsible to the village corporation for the proper discharge of their duty. The commissioners and village are not two separate and independent bodies, but the former is subordinate to the latter. The commissioners owe no duty to individuals, in respect to the highways of said village, and, as a consequence, are not responsible to individuals for any neglect of duty in that respect. The authority for the construction and maintenance of the water-works, was for the benefit and advantage of the defendant, and not the commissioners. The defendant, having accepted such provision, has accepted the agents appointed for it by the State, and becomes responsible for their acts, as if appointed by itself. By these cases, it is evident that the defendant would be held liable, notwithstanding the quasi corporate character of the commissioners, upon the theory that such commissioners were acting for the defendant, and without any personal interest or profit to themselves. But it is believed that the defendant may be made liable, upon the further -ground that it was the express and exclusive duty of the defendant, to keep in repair the streets of. said village; this was not done. The superintendent of the water commissioners was also the superintendent of highways of the village, whose duty it was to keep the streets in repair, or, in case they were necessarily out of repair, to so guard and protect the public, that no injury should come therefrom. This superintendent directed this excavation to be made, and knew of its existence. His knowledge was the knowledge of the defendant. By his neglect to repair the highway or guard against accident, the defendant became liable for plaintiff’s damages.

The judgment and order appealed from should be affirmed, with costs.

Present—Miller, P. J., Bocees and Boardmae, JJ.

Judgment affirmed, with costs.

       Bailey v. Mayor, &c., 3 Hill, 531; affirmed 2 Den., 433 ; Conrad v. Village of Ithaca, 16 N.Y., 158, and note, p.161; Diveny v. City of Elmira, 51 N. Y., 506.

       Davenport v. Ruckman, 37 N. Y., 568; Hutson v. Mayor of New York, 9 N. Y., 163.