author: Bu&er, Ch. J.

text:
    Max Heuertematte et al., Appellants, v. Francis Morris, Respondent.
    A bona fide holder for value of a bill of exchange before acceptance is not required to pay an additional consideration to the drawee for his acceptance, in order to enforce it against him.
    The bill itself implies a representation by the drawer that the drawee is in funds to meet it, and the contract of the former is that the latter will accept and pay according to the terms of the bill; the subsequent acceptance constitutes an admission of the truth of the representation, which the drawee and acceptor is not thereafter allowed to retract.

      E. who resided at Rivas in the State of Nicaragua, having collected a claim as agent for plaintiffs who resided at Panama, sent to them a draft for the amount, less cost of collection and exchange, drawn by him on defendant at New York; this draft was received and accepted by plaintiffs in lieu of the moneys collected, and was remitted to New York; it was accepted by defendant, but when presented for payment it was refused. In an action upon the draft, held, that plaintiffs were bona fide holders for value ; that the funds collected by R. remained their property, until by their acceptance of the draft they consented to and approved of that mode of transmission, and simultaneously with such acceptance the title to the funds passed to R.; that until such acceptance the conventional relation of debtor and creditor did not exist between R. and plaintiffs, and then those relations were governed by the liabilities existing by force of the draft alone; and that defendant was precluded by his acceptance from showing that it was without consideration and was induced by fraud on the part of the drawer
    (Argued December 7, 1885;
    decided December 22, 1885.)
    Appeal from order of the General Term of the Supreme Court, in the first judicial department, made October 27,1882, which reversed a judgment in favor of plaintiff, entered upon a verdict directed by the court. (Reported below, 28 Hun, 77.)
    This action was brought upon defendant’s acceptance of a bill of exchange drawn upon him at ninety days by Ran Runnels of Rivas, in the State of Nicaragua, payable to the order of Hourquet & Poylo and by them indorsed before acceptance to plaintiffs.
    Defendant offered to show that the acceptance was made without consideration and was induced by fraudulent representations on the part of the drawer; this was objected to and excluded.
    The material facts are stated in the opinion.

      F. R. Coudert for appellants.
    An acceptance estops the acceptor from denying consideration or alleging fraud of drawer as against a bona fide holder. (Harger v. Worrall, 69 N. Y. 371; Comstock v. Hier, 73 id. 273; Nickerson v. Ruger, 76 id. 276; First Nat. Bk. v. Green, 43 id. 301.) Want of consideration between the drawer and acceptor is no defense against one who has given consideration for the bill, if that fact be not known to the holder before he gives value for it. (U. S. v. Bk. of Metropolis, 15 Pet. [U. S.] 377; Corbett v. Clark, 45 Wis. 403; Wells v. Brigham, 6 Cush. 6.) As against a bona fide holder, the acceptor must pay although the bill prove to be forged. (Goddard v. Merchants' Bk., 4 Comst. 147; Lather v. Simpson, L. R., 11 Eq. 398; Smith v. Braine, 16 Ad. & Ell. [N. S.] 498; Fitch v. Jones, 5 Ell. & Bl. 238; Anderson v. Warne, 71 Ill. 20; Roberts v. Lane, 64 Mo. 108.) The acceptance is equally binding and subject to the same application of the rule of estoppel, whether given prior or subsequent to parting with value. (Commercial Bk. v. Norton, 1 Hill, 501; Philbrick v. Dallett, 2 J. & S. 370; Nat'l Bk. v. Schuyler, 7 id. 440; Theidermann v. Goldschmidt, 1 De Gex, F. & J. 4; Robinson v. Reynolds, 2 Q. B. 211; Hoffman v. Bk. of Milwaukee, 12 Wall. 181; Voorhis v. Olmstead, 66 N. Y. 113; Nat'l Bk. v. Nat'l Bk. Comm., 50 id. 585.)

      C. E. Coddington for respondent.
    Where a bill is void in its creation, or has been unduly obtained, or wrongfully diverted from its purpose and fraudulently negotiated, the party suing on it is bound to show himself a bona fide possessor. The affirmative is with the plaintiff, in an action upon such a bill, to prove a clear legal title, valid as against the parties to the instrument. (Comstock v. Hier, 73 N. Y. 273; Nickerson v. Ruger, 76 id. 279.) One who receives a bill or note before due, and without notice and knowledge of any fraud in its inception or transfer, but for a precedent debt, and without parting with value or any valuable consideration, does not acquire a valid title to the note or bill, but takes it subject to all its infirmities, precisely as if he had taken it after dishonor, or with knowledge of all the circumstances affecting its validity. (Moore v. Ryder, 65 N. Y. 441; Lawrence v. Clark, 36 id. 128) The extinction of a legal demand, in its original form, is to be proved affirmatively ; and the question whether a party is a holder for value of the new security, so as to displace, in his favor, any right or equity against the party to whom it was given, depends upon the fact being established of an intended and actual ex-tinguishment. (N. Y. Exchange Co. v. De Wolf, 3 Bosw. 86.) Plaintiffs were bound to prove an express agreement between them and Ban Bunnels or Hourquet & Poylo, that the taking of the bill was an absolute payment and discharge of plaintiff’s claim against them for the money they had collected. (Farrington v. Frankfort Bk., 31 Barb. 183.) The receipt, alleged to have been given by plaintiffs to Ban Bunnels, does not answer this requirement. (Olcott v. Rathbone, 5 Wend. 493; Bradford v. Fox, 38 N. Y. 289; Phoenix Ins. Co. v. Church, 81 id. 221; Molden v. Whitlock, 1 Cow. 290; Lawrence v. Clark, 36 N. Y. 131.) Defendant is not estopped by an acceptance, upon which plaintiffs did not rely when they took the bill, from showing as against them that the acceptance is void for fraud. (Farmers & Mechanics’ Bk. v. Empire Stone Dressing Co., 5 Bosw. 290.) The delivery of a check does not operate as payment of a debt, and a receipt given upon delivery of the check, acknowledging the receipt of money, adds nothing to the effect of such delivery. (Bradford v. Fox, 38 N. Y. 290; Olcott v. Rathbone, 5 Wend. 493; Molden v. Whitlock, 1 Cow. 290; Lawrence v. Clark, 36 N. Y. 101; Moore v. Ryder, 65 id. 441.) As plaintiffs knew that Hourquet & Poylo could not collect the claim any more directly than they could themselves, but would be compelled to employ a,n agent, they thus authorized the employment of an agent by Hourquet & Poylo. (Dorchester Bk. v. New England Bk., 1 Cush. 177; Story’s Agency, § 14, note 3.) Wherever any express ' or implied authority to appoint a sub-agent is allowed or given by the principal, a privity is created between them. (Story’s Agency, §§ 201, 387.)
   Bu&er, Ch. J.

In the discussion of this case it is unnecessary to consider particularly the agency of Hourquet & Poylo in the transaction, as they acted solely as the gratuitous agents of the plaintiffs, and had no interest in the subject of the business. It may, therefore, be'treated as a transaction occurring directly between the plaintiffs and Ban Bunnels, and concisely described, was to the following effect: The plaintiffs were merchants doing business at Panama, and one Ohristofel was a customer and debtor of theirs, residing at San Juan del Sur, near Bivas, in the State of Hicaraugua. Ohristofel was desirous of discharging his obligations to the plaintiffs, but was embarrassed in doing so by the infrequency of communication between Bivas and Panama, and the want of a system of exchange enabling him to transmit funds safely and expeditiously from one place to the other. Under these circumstances the plaintiffs consulted Hourquet & Poylo, a business firm at Panama, as to the best manner of collecting the debt. The plaintiffs were informed by Hourquet & Poylo that Ban Bunnels was a correspondent of theirs residing at Bivas, and that the collection could probably be made through him, and offered to transmit a draft on Ohristofel to Bunnels, for that purpose. Thereupon the plaintiffs made their draft on Christofel at sixty days for $1,000 payable to Hourquet & Poylo, who indorsed the same to Runnels and forwarded it to him at Bivas for collection. In due time it was received by Bunnels, and at its maturity was paid to him, in Columbian currency.

It becomes important now to determine the legal obligations and duties of the parties toward each other at this stage of the transaction. In the collection of the draft Bunnels acted as the mere agent of the plaintiffs, and had no interest in the proceeds except, perhaps, a lien thereon for the value of his services in making the collection. He had no right or authority to use such funds for his individual purposes, and his sole duty in relation to them, was that of their transmission to his principals. The nature of the business impliedly authorized him, to make such transmission according to the usages of trade, and in the absence of such usages to do so by some other method which should, in the exercise of reasonable care and prudence, promise to accomplish the object intended. It was, therefore, open to him to transmit the funds received in specie as they were collected, or he could have purchased a bill of exchange, if opportunity served, at that place, and transmitted that; of he could remit them in any other way deemed most safe, convenient and desirable to him, subject to the approval by his principals, of. the method adopted. It does not appear in the case but-that Runnels was a merchant or banker and accustomed to sell exchange upon foreign places. However that may be, he-in fact sent to the plaintiffs, February 4, 1879, immediately upon collection, the proceeds thereof, less cost of collection and exchange, by the draft in suit. This was his own draft upon the defendant Morris, at Hew York, at ninety days’ sight. Upon the receipt of this draft by the plaintiffs, it was accepted by them and remitted to Hew York, for presentation to, and acceptance by the drawee, and the same was accepted by him February 26, 1879.

The sole question in the case is whether the plaintiffs were bona fide holders for value of the draft. We cannot doubt but that they were. If on receiving the funds in question Runnels had purchased with them a bill of exchange or draft from a merchant, or banker, according to the usages of trade, and trans-, mitted the same to the plaintiffs, no question could arise but that he acted as their agent in the transaction, and they would have been bona fide holders of such papel within all definitions of that character, and we are unable to see the difference in principle between such a ease and the transaction in question. The funds collected by Runnels were, until they consented to their appropriation by him, at all times the property of the plaintiffs. Runnels’ sole duty in relation to them was that of transmission to the plaintiffs, and until that duty was legally performed he held them in a fiduciary capacity for a specified purpose. His duty of transmission could not be performed by remitting his own obligation, payable at a future day, except by the consent and approval of the plaintiffs. Until this consent and approval was given the funds remained the property of the plaintiffs, and any use of them by Runnels before that time would have constituted a violation of his duty' to his principals, which it cannot be presumed he committed.

■Doubtless the lack of adequate facilities of exchange between Riv s and Panama induced Runnels to offer, and the plaintiffs to accept, the mode of remittance adopted, and it was entirely competent for Runnels to propose, and for the plaintiffs to accept such a solution of the inconveniences of the situation; but no title to the funds collected passed to Runnels, until the acceptance of the draft by the plaintiffs. After that and not till then he was authorized to use those funds as his own.

By the original employment the plaintiffs contemplated no credit to Runnels and he had no right to, and it does not appear that he even supposed, he acquired any right to use the funds in question for his own purposes, or that he ever did so use them. The conventional relation of debtor and creditor never existed between Runnels and the plaintiffs until the acceptance of his draft upon Morris, and then those relations were governed by the liabilities existing by force of the draft, alone.

In accordance with the rule which precludes a court from presuming a violation of duty by an individual, we must assume that Runnels performed his duty, and his whole duty, to the plaintiffs as their agent. This required him to safely keep their funds until he had transmitted them according to the usage of trade, or in some other mode approved by them. The legal effect of the method adopted was to transfer the title to the funds collected, to Runnels simultaneously with the acceptance by the plaintiffs of Runnels’ draft upon Morris, and was the precise equivalent of the payment of so much money in the immediate purchase of a draft or bill of exchange by one person from another. We are, therefore, of the opinion that the plaintiffs were the bona fide holders for value of the draft in suit and are entitled to recover thereon.

The General Term conceded that the plaintiffs were bona fide holders for value of the bill before acceptance, but deny them that character after acceptance as against the acceptor. We think the concession is fatal to the conclusion reached by that court.

It is said that the Farmers & Mechanics’ Bank v. Empire Stone Dressing Co. (5 Bosw. 290) is authority for the position. It is true that some expressions of the learned judge writing in that case may justify the citation, yet it should be considered that those remarks were unnecessary to the decision of the case, and the same court have twice since then refused to follow it.

We conceive the rule there laid down finds no support in the doctrines of the text-writers or the reported cases. (Philbrick v. Dallett, 2 J. & S. 370; First Nat. Bank of Portland v. Schuyler, 7 id. 440; Parsons on Bills and Notes, 323; Daniels on Neg. Inst., § 534; Edwards on Bills [2d ed.], 410.)

If a party becomes a bona fide holder for value of a bill before its acceptance, it is not essential to his right to enforce it against a subsequent acceptor, that an additional consideration should proceed from him.to the drawee. The bill itself implies a representation by the drawer that the drawee is already in receipt of funds to pay, and his contract is that the drawee shall accept and pay according to the terms of the draft. (Parsons on Bills, 323, 544; Arpin v. Chapin, Mass. Sup. Ct., Oct., 1885.) The drawee can of course upon presentment refuse to accept a bill, and in that event the only recourse of the holder is against the prior parties thereto ; but in case the drawee does accept a bill, he becomes primarily liable for its payment, not only to'its indorsees but also to the drawer himself.

The delivery of a bill or check by one person to another for value implies a representation on the part of the drawer that the drawee is in funds for its payment, and the subsequent acceptance of such check or bill constitutes an admission of the truth of the representation, which the drawee is not allowed to retract. (Daniels on Neg. Inst. 534; Parsons on Bills, 323, 544, 545.) By such acceptance the drawee admits the truth of the representation, and having obtained a suspension of the holder’s remedies against the drawer, and an extension of credit by his admission, is not afterward at liberty to controvert the fact as against a bona fide holder for value of the bill.

The payment to the drawer of the purchase-price furnishes a good consideration for the acceptance which he then undertakes shall be made, and its subsequent performance by the drawee is only the fulfillment of the contract which the drawer .represents he is authorized by the drawee to make.

The rule that it is not competent for an acceptor to allege as a defense to an action on a bill that it was done without consideration, or for accommodation, as against a bona fide holder for value of such paper, flows logically from the conclusive force given to his admission of funds, and' is elementary. (Daniels on Neg. Inst., §§ 532-534; Edwards on Bills, 410; Harger v. Worrall, 69 N. Y. 371; Com. Bk. of Lake Erie v. Norton, 1 Hill, 501; Robinson v. Reynolds, 2 Q. B. 196, 211; Hoffman v. Bank of Milwaukee, 12 Wall. 181.)

•Of course the cases determined upon the ground that the payee of such paper received it to apply upon an antecedent debt, or that it had been unlawfully diverted from .the purpose for which it was designed, have no application to the circumstances of this case.

The judgments- of the courts below should, therefore, be reversed and a new trial ordered, with costs to abide the result.

All concur.

Judgment reversed.


source: Caselaw Access Project

author: Danforth, J.

license: Public Domain

text:
    Cyrus Butler, Respondent, v. John Smalley et al., Appellants.
    The penalty imposed by the General Manufacturing Act (§ 15, chap. 40, Laws of 1848) Upon the trustees of a corporation organized under it for signing an annual report “ false in any material representation ” with knowledge of its falsity, is not incurred simply because of an omission from the aggregate of indebtedness of certain liabilities of the company, although this was known to the defendants at the time the report was ■ made.
    Where it appears that the report was made within the twenty days but not filed until thereafter the inquiry is as to whether the company is in default; while the law requires the filing to be within a reasonable time after the twenty days, and this exacts prompt performance and diligent action, if the company avails itself of the usual method of performing its duty, and the performance is within a reasonable time, having regard to the nature and circumstances thereof, in the absence of any thing showing want of good faith and active diligence, the trustees are not liable.

      A manufacturing corporation made and published its report within twenty days after the 1st day of January, 1878, but through a mistake of its secretary, to whom it was delivered for that purpose, it was not filed within that time. Upon application to the Supreme Court an order was granted February thirteenth that the report be filed nuno pro tuna and it was filed on that day. In an action by a creditor of the corporation against the trustees, hold, that the order did not relieve the defendants from the consequence of any default on their part, as the duty to file the report was imposed by statute, and .over it the court had no jurisdiction ; but that the application was an act by defendants in futherance of their duty, andan indication of good faith ; and a finding that there was neither a prompt performance nor diligent action on the part of the company with respect to the filing was error; as was also a refusal to find that whether the report was filed within a reasonable time after the expiration of the twenty days depended upon the circumstances of the case.
    (Submitted June 12, 1885;
    decided January 19, 1886.)
    Appeal from judgment of the Greneral Term of the Superior Court of the city of New Yorb, entered upon an order made March 2,1883, which affirmed a judgment in favor of plaintiff, entered upon the report of a referee.
    The nature of the action and the material facts are set forth in the opinion.

      Thomas Winsor db Samuel Mcursh for appellants.
    A filing of the report, if not within twenty days, is not a sine qua non. No action is given for mere non-filing of report. (Cameron v. Seaman, 69 N. Y. 402.) The provision as to filing is directory ; while, in a proper case, gross negligence or wanton willfulness in not filing, would be visited with condign punishment. (Veeder v. Mudgett, 95 N. Y. 295, 298, 300, 315.) The order nuno pro tuna, ordering that the report “be filed in the office of the clerk of the county of New York, as of the 17th of January, 1878,” is binding on the company, its officers, and the plaintiff as their managing stockholder, or corporator, and to all intents and purposes a trustee or director in control of the whole .concern. (Gildersleeve v. Dixon, 6 Daly, 76.) The filing nunc pro tuna, February 13, 1878, as of January 17, 1878, was valid and binding on the company, even if it were not on an outside creditor, and especially was it binding on Butler, considering his confidential relations to the company; the chiefest stockholder and most active man on duty, and in all reality a trustee. (Briggs v. Easterly, 62 Barb. 51; Bonnell v. Griswold, 80 N. Y. 135; Easterly v. Barber, 65 id. 252; Deming v. Puleston, id. 655; Pier v. Hanmore, 86 id. 95; Arthur v. Griswold, 55 id. 400.)

      Frank A. Irish for respondent.
    The defendants are liable for the debt in question, because they failed to file a report as provided in the twelfth section of the act of 1848, as soon as practicable after the expiration of twenty days from the first day of January, and because they failed in prompt performance and diligent action with respect to such filing. (Gildersleeve v. Dixon, 6 Daly, 76; Deming v. Puleston, 35 N. Y. Super. Ct. 309; Vincent v. Sands, 33 id. 511; Jones v. Barlow, 62 N. Y. 202; Cameron v. Seaman, 69 id. 396; Bolen v. Crosby, 49 id. 183; Sanborn v. Lefferts, 58 id. 179.) When the trustees had failed to file their annual report according to law the penalty attached, and the right of action in favor of plaintiff and other creditors accrued and was perfect. (Matter of Empire City Bk., 18 N. Y. 199; Taylor v. Porter, 4 Hill, 140; Rockwell v. Nearing, 35 N. Y. 302; Westervelt v. Gregg, 12 id. 202; Happy v. Mosher, 48 id. 313.) Where there is a fixed or contemplated money obligation there is an existing debt within the statute; and although the right of action against the trustees in a case where the debt is payable in the future does not accrue until the maturity of the debt, yet the debt exists; and upon its maturity the trustees who neglected-to conform to the statute while it was outstanding may be held under this sectiou. (Jones v. Barlow, 62 N. Y. 202; Vernon v. Palmer, 48 N. Y. Super. Ct. 231; Leggett v. Bank of Sing Sing, 24 N. Y. 291.) The objection of misjoinder of causes of action is not available. It was not taken by demurrer or answer, and is therefore waived. (Code, §§ 498, 499.) In any case there was no misjoinder. (Bonnell v. Wheeler, 1 Hun, 332; Bonnell v. Griswold, 68 N. Y. 294; Arthur v. Griswold, 55 id. 400.
   Danforth, J.

“ The Lathrop Anti-Frictionate Company ” was organized under the Manufacturing Law of 1848 (Chap. 40). It made and published a report of its affairs, as required by section 12 of that act, within twenty days after the 1st day of January, 1878, but the report was not filed until February thirteenth. The defendants were its trustees, and the plaintiff, claiming to be a creditor of the company, brought this action to fix a liability upon them for his debt, on the grounds, first, that the report was false in fact; and, second, was not filed within the said twenty days, “ nor as soon as practicable thereafter.” The first ground seems now to be abandoned by the counsel for the respondent, and indeed could not well be insisted upon. There is no finding that the report was false, nor that the defendants signed it knowing it to be false, but only that it omitted from the aggregate of indebtedness certain liabilities of the company, and that this was known to the defendants “ at the time the report was made and filed;” nor is there any finding either of bad faith or of willful or fraudulent purpose on the part of the trustees, nor of "any fact showing actual fraud ; and without one or the other of these things, the penalty imposed for signing-a report “ false in any material representation ” (§ 15, act of 1818, supra), is not incurred. (Pier v. Hanmore, 86 N. Y. 95; Bonnell v. Griswold, 89 id. 122.) The other point is disposed of by the construction given to section 12 (supra), in Cameron v. Seaman (69 N. Y. 396). In that case the precise question was whether the report must be filed and published, as well as made within the twenty days from the first of January, in order to meet the exigency of this section, and it was held that the limitation of twenty days, applied only to the act of making, and did not apply to the act of filing or publishing; that as to those acts, the section was directory, but'as the object of the-act was to insure a speedy and public disclosure of the contents of the report, it was said that the law, in the absence of an express provision on the subject, implies that "both filing and publication should be within a reasonable time after the twenty days, and that this requirement exacted prompt performance'and diligent action on the part of the trustees. This rule was laid down as most consistent with reason and a due regard to convenience and justice, and leads to an inquiry in any given case, whether the party on whom the duty is imposed is shown to be in default. In that ease the report was made within the twenty days, sent by mail to the county cleric and to the newspaper office on the twenty-first day and was in fact both filed and published, but of course not until after the expiration of the twenty days.

How in the case before us it is conceded that .the report was made within the twenty days, viz.: on the seventeenth of January. It was conclusively proven that at the moment of making, the report was delivered to the secretary for filing and publication ; he caused its publication the next day, and the plaintiff himself proved that it was owing to the mistake of the secretary that it was not then filed. At the outset of the case the plaintiff introduced and put in evidence the annual report of the company, dated January 17, 1878, and a petition dated February eighth, addressed to the Supreme Court, and its order thereon. The report was in form sufficient, and the petition, verified by the secretary, stated that the report was published on the eighteenth of January, but, “by mistake, was not filed in the office of the clerk of the county of Hew York.” The prayer of the petition was granted, and the court on the thirteenth day of February, ordered the report filed as of January seventeenth. In the course of the trial, the defendant, John Smalley, had testified that the report was filed in the clerk’s office, January, 1878, and upon cross-examination the plaintiff’s counsel called his attention to that evidence, saying, “ and that you still affirm ? is that so ? Ans. That is so in one respect; ” and being further pressed, said: “ That report was made out and given to my son ” (meaning the secretary), and I supposed he took it there.” This answer was, on motion of the examining counsel, stricken out, but subsequently on the same examination, the question was repeated, the plaintiff’s counsel saying: “ Q. I now repeat my former question. Did you swear on your direct examination as follows: ‘ Q. Do you know whether there was any report of the Lathrop Anti-Frictionate Co. filed in 1878, in Jan-nary of tha.t year? A. Tes, sir, there was.’ A. I did. Q. Ton did not file it yourself ? A. Ho, sir. Q. Don’t you know that your son, William. W. Smalley, subsequently, and as late as February eighth, made an application to the court upon a petition, in which he swore that through some mistake or other that report had not been filed within the first twenty days of the year, as required by law? A. I think I did. Q. Why did yon swear as you did, that the report was filed in January, when you knew that your son had made a petition under oath that it was not? A. As far as I was concerned it was -filed. I did every thing in my power; I had helped him to make out a report and he took it, and I was not aware at the time but what it was filed.”

William Smalley, referred to by the foregoing witness, testified that he was secretaiy of the company ; that the report was filed in 1878, and published. He testified to the preparation of a petition to the Supreme Court for leave to file the report, and the granting of the order on the thirteenth of February, that the report be then filed nuno pro tuna, as of the 18th of January, 1878.

The referee committed no error in refusing to hold that the order relieved the defendant. Such' entries .are sometimes' made in the progress of litigation, upon the principle that a delay of the court shall prejudice no one. Here the duty to file the report was imposed by statute upon the corporation, and over it the court had no jurisdiction. But the application was an act by the defendants in supposed furtherance of their .duty and was an indication of good faith in respect to the proper disposition-of the report. It was an effort to do that which the corporation had not done. Under another act, similar in its purpose (Laws of 1875, chap. 611, § 18), a director may escape the consequences of an omission on the part of the company, by himself subsequently and within a fixed time filing a certificate or report, but no sneh provision is to be found in the act before us. It is enough, however, as we have seen (Cameron v. Seaman, supra), that it be filed within a reasonable time after the expiration of the twenty days, and the referee was asked fco find, that whether this was done would depend upon the circumstances of the case. This he refused to do, and the defendants excepted. In this the referee erred; and also in finding that there was neither prompt performance, nor diligent action on the part of the company with respect to the filing of the report. To prepare a report for filing and publication, to place it in good faith in the hands of the secretary for deposit in the clerk’s office and in the office of a newspaper, is at least equal in significance to a delivery of a report to a mail agent for transmission to those places. In the one case as in the other the company avails itself of the usual method of performing its duty, and in the absence of anything to show the want of good faith and active diligence in respect thereto on its part, a trustee, when no time is fixed by statute within which an act shall be performed, should not be subjected to a penalty, provided the thing required is actually done at a reasonable time, having regard to the nature and circumstances of the performance. The case at bar is not within the mischief at which the act is aimed, as it coneedédly is not within its terms. The referee erred in refusing to find as requested, and he found without evidence the existence of a default upon which the defendant might be charged.

We think the judgment appealed from should be reversed, and a new trial granted, with costs to abide the event.

All concur, except Huger, Ch. J., and Rappalo, J., not voting.

Judgment reversed.


author: Danfobth, J.

text:
    Robert C. Martin, Appellant, v. Jacob S. Rector, Respondent.
    Since the passage of the acts in relation to the property of married women there is no presumption that the husband is in occupation of his wife’s lands, and in an action of ejectment brought against the husband to recover possession of such lauds, whether she was occupying them at the time of the commencement of the action, or had given to her husband the possession, is to be determined as a question of fact.
    (Argued October 6, 1885;
    decided January 19, 1886.)
    Appeal from, judgment of the General Term of the Su-' preme Court, in the third judicial department, entered upon an order made May 1,1883, which affirmed a judgment in favor of the defendant entered upon a verdict. (Reported below, 30 Hun, 138.)
    This was an action of ejectment for non-payment of rent, under leases executed by Stephen Yan Rensselaer.
    Plaintiff claimed as grantee of the lessor. The interests of the original lessees were shown to have been transferred by successive conveyances to Martinus Lansing, who was father of defendant’s wife. Non-payment of rent falling due in 1859, was shown. The action was commenced in 1860. It was proved in substance that in 1856 said Lansing told defendant’s wife that, if she would move on the land in question, he would make her a present of it, and that she might go on and build and improve it, and he would give to her a deed. That defendant and his wife thereupon moved upon the premises, and lived thereon as husband and wife. Buildings were put up and improvements made.
    The further facts, so far as material are stated in the opinion.

      Esek Cowen for appellant.
    The defendant was, upon the undisputed facts of the case, an actual occupant of the premises within the meaning of the statute. (2 R. S. 304, § 4; Shaver v. McGraw, 12 Wend. 558; Doe v. Sterling, 2 Stark. 187; Hamilton v. Douglas, 46 N. Y. 218; Alexander v. Ward, 64 id. 230; Townsend Bk. v. Todd, 49 Conn. 231.) A mere equitable ownership in the wife, if that made, any difference with the occupancy, did not exist here; the defendant went into possession by mere verbal permission of the wife’s father. (Freeman v. Freeman, 43 N. Y. 35; lobdell v. lobdell, 33 How. 347.) The fact that the defendant occupied and possessed, as the representative of the wife, does confer upon him the occupancy within the statute. Even a servant in occupation may be defendant in ejectment. (Doe v. Stradling, 2 Stark. 187.)

      George W. Miller for respondent.
    Since 1848 a wife could hold, possess and occupy real property as a. feme sole. (Knapp v. Smith, 27 N. Y. 277.) She could do so and could buy xon credit without any other separate estate, and she could manage a farm by and through the agency and services of her husband, and hold the property and its increase as her separate estate. (Van Derwert v. Gould, 36 N. Y. 639; Abbey v. Deyo, 44 id. 343; Rowe v. Smith, 45 id. 230.) Recent legislation has wholly changed the common law. The husband has no longer any right to the use of the real estate, or to the possession of the property thus acquired. (Prevot v. Lawrence, 51 N. Y. 219; Wright v. Wright, 54 id. 437; Minier v. Minier, 4 Lans. 422; Wood v. Wood, 18 Hun, 350; 83 N. Y. 575; Alexander v. Hard, 64 id. 228.) Payment of taxes by the husband shows no right or possession in him and is not even evidence of actual occupation. (Minier v. Minier, 4 Lans. 422; Ludlow v. Meyers, 3 Johns. 388.) A paroi gift of land, followed by delivery of possession, continued occupancy and the making of substantial improvements, creates a good title. (Freeman v. Freeman, 43 N. Y. 34; Lobdell v. Lobdell, 36 id. 327.) The validity of Mrs. Rector’s title was not in. question. That she claimed title and was in possession — was the occupant—was sufficient to defeat the action against the defendant. (Chamberlain v. Choles, 35 N. Y. 447; Steele v. Johnson, 4 Allen, 425.)
   Danfobth, J.

That the plaintiff was the gran-tee of the original lessor, that rent was due from the lessee, and unpaid, and that the demise contained a condition for re-entry upon the land in question for non-payment of rent was conceded, but the land was occupied and no recovery could be had unless the defendant was at the beginning of the action the actual occupant of the premises. (2 R. S. 304, § 4.) Whether he was such occupant was the question litigated at the trial. The plaintiff claimed that the evidence was all one way, and of such force as to require the trial court to withhold it from the jury and direct a verdict for him. The judge declined to do so, and upon submission to the jury, their verdict was in favor of the defendant, as was also a special finding that he was not the actual occupant of the premises at the time of the commencement of this action.”

We think the learned court did not err. By force of the statutes relating to the property of married women (Laws of 1849, chap. 375), the wife may take the equitable or legal title to real and personal property, and hold the same to her sole and separate use as though she were unmarried. She might, therefore, cultivate the land and manage the personal property either in person or by means of any agency which any other owner of property might employ. (Knapp v. Smith, 27 N. Y. 277; Draper v. Stouvenel, 35 id. 507; Rowe v. Smith, 45 id. 230; Bodine v. Killeen, 53 id. 93; Wood v. Wood, 83 id. 575.) Whether she was doing so in this case or whether she had given to the defendant, her husband, the possession of the premises was the real subject of contention, and to be determined as a question of fact. (Alexander v. Hard, 64 N. Y. 228.) That the title was in her was unquestioned, without her consent he could have no legal possession, and therefore could not have even that rightful temporary use of the soil without which one could not be, in the language of the statute, an “ actual occupant.” In behalf of the plaintiff, the defendant at one time testified on examination before trial, but after suit brought, that he was in possession at the time of the commencement of the action, and with that general testimony the plaintiff rested. But afterward the facts constituting the possession and occupancy of the premises were disclosed, and it appearing that the land was given to Mrs. Sector by her father, the defendant testified: My wife went upon those premises in pursuance of that.' I went there with my wife; the property was given to her, and of course I went there and lived with her; that was the only reason I went there; I occupied the premises in no other way than that.” “ She continued,” he says, “ to live upon and occupy these premises” for many years, and until a short time before the trial, and whatever he did was by her directions,’ ’ or as he says, he was the acting man under his wife.” She testifies that she went into possession at the time the farm was given to her, long before the commencement of the action, and continued in possession from that time, personally' residing upon and occupying it; that she never gave the possession of the premises in any way to her husband. Upon this testimony the jury might well find that the defendant was not the “ actual occupant.” He was there as husband, servant, agent, not as one having, in relation to the land, any right or interest or power of control. In neither capacity did he occupy within the meaning of the statute. Uor were they in possession jointly. The possession was always her possession. If ousted by her husband or other person, she could bring an action to recover possession. Before the statutes {supra) the husband, jure mariti¡ had a right to the possession of his wife’s lands, and as her head or master he might be presumed to be in occupation. It is now different. The wife as well as the husband may own lands free from the other’s control, and there can be no such presumption. He may still be the head of the family without being in any legal sense the possessor or actual occupant of the house or land in or upon which the family reside.

But upon the whole evidence it was properly left for the jury to say whether the defendant was the actual occupant, and their verdict, rendered, as it was, under proner instructions, is conclusive.

We, therefore, agree with the Gfeneral Term and think the judgment appealed from should be affirmed.

Andrews, Miller and Finch, JJ., concur; Bapallo and Earl, JJ., dissent; Büger, Oh, J., not voting.

Judgment affirmed.


author: Andrews, J.

text:
    The People, ex rel. The Board of Supervisors of the County of Ulster, Respondent, v. The Common Council of the City of Kingston, Appellant.
    Under the statutes regulating appeals to the State assessors from equalizations made by hoards of supervisors, of the valuation of property in their respective counties (Chap. 813, Laws of 1859; cha,p. 837, Laws of 1873; chap. 351, Laws of 1874; chap. 49, Laws of 1876; chap. 80, Laws of 1880), where such an appeal is dismissed, the costs and expenses incurred by the hoard may he charged against the town, city or ward ap- ■ pealing.
    Under said acts the employment of necessary appraisers and searchers by the board at a reasonable per diem compensation, and the necessary- disbursements in preparing for the investigation are legal items of expenses chargeable under the statute; and the decision of the board of supervisors— the auditing.board created by the acts — as to the amount and reasonableness of the expenses incurred, in the absence of fraud or collusion, is final and conclusive.
    It was within the power of the legislature to constitute the board of supervisors a board to audit the expenses chargeable upon the party appealing. In making the audit the members of the board simply discharge a duty of public administration, cast upon them by law, and are neither within the letter nor the spirit of the statute prohibiting a judge from sitting in a case in which he is a party or is interested.
    At a meeting of the board of supervisors of the county of U. bills of expenses, duly verified, incurred by it in equalization proceedings, were presented. The supervisors and counsel of the city of K., the party appealing, had notice as early as November thirteenth of the amount of expenses claimed to have been incurred by the hoard. On November twenty-first, the board, then in session, appointed a committee to examine the bills and report thereon. On December first the counsel for the city notified the committee that the city desired to be heard. On December third, the committee made a report to the board, and upon its being read, the supervisors of the city requested that consideration thereof be postponed until the next day in order to give them time to examine the bills-and present objections; the board, however, proceeded to act upon the report and made the audit, no specific objections being made by the city supervisors to any of the items; it was the practice of the board to adjourn on the fifth. In proceedings by mandamus to compel the common council of the city to levy and collect the sum audited, held, that under the circumstances disclosed, no legal right of the city was invaded by the. denial of the application for delay.
    Also held, that the board of supervisors had such an interest in enforcing the collection of the costs that it could authorize the proceedings; that the expenses, when incurred, were, in the first instance, on its credit, and so were county charges, it simply having a remedy over against the city in case the latter failed on its appeal.
    The board passed a resolution on December fourth, authorizing the employment of counsel named, “ in all matters in litigation ” growing out of the equalization, and authorizing him “ to take all necessary and proper proceedings in the name of the board; ” subsequently a committee of its members was appointed with full power to do all things necessary in the litigation. Held, that ample authority was thus conferred to institute the proceedings.
    The charter of the city provides a special system for the collection of taxes therein. ;It was objected that the charge against the city could not be enforced. Held untenable; that the direction in the act of 1873 (Chap. 337, Laws of 1873), requiring the sum audited by the board of supervisors to be “ levied upon the taxable property in said * - * city,” is to be carried out by causing the same to be levied in the usual way provided for levying and collecting taxes in the city.
    The city procured a writ of certiorari to review the proceedings of the board in auditing the accounts and assessing them upon the city. The writ was dismissed by the General Term. Held, that its order was not res adjudicata as to the validity of the assessment, as the allowance or refusal of the writ was in the discretion of the court; and that the character of the order as a discretionary one was not altered by the fact that it appears in the opinion of the court that it examined the proceedings and considered them regular.
    (Argued October 20, 1885;
    decided January 19, 1886.)
    Appeal from order of the General Term of the Supreme Court, in the third judicial department, made May 22, 1885, which affirmed an order of Special Term, granting a peremptory writ of mandmnus herein.
    The proceedings were instituted December 6, 1881, the Special Term order directed the issuance of a writ of mandamus commanding the common council of the city of Kingston to levy and collect upon the taxable property of the city the sum of $18,308.07, audited by the board of supervisors December 3, 1883, for costs and expenses incurred by the board on an appeal to the State assessors, taken by the supervisors of the city of Kingston, November 28, 1882, from the equalization of the valuation of the real and personal property of the several towns and wards in the county of Ulster, made by the board of supervisors at its annual _ session in that year. The appeal came on to be heard before the State assessors, and was dismissed November 16, 1883.
    The board of supervisors on the 29th of November, 1882, after said appeal was taken, appointed a committee to take charge of the interests of the board on the appeal, with power to employ counsel, and such clerical and other assistance as the committee should deem necessary, and take such measures and incur such expenses as their counsel might advise, or as they should deem meet and proper in the premises. Pursuant to this authority counsel were employed, and upon their advice the committee caused abstracts to be made of all conveyances recorded in the clerk’s office of Ulster county, for the period of five'years, commencing January 1, 1878, stating the consideration named in each case. The expense of obtaining these abstracts exceeded $2,000. The committee also, by advice of their counsel, caused an appraisal to be made of each parcel of land, of which there was a several ownership in the county of Ulster, by appraisers appointed by them for each town and ward in the county (there being sixty-three appraisers in all), at an expense of $9,570.03. Other expenses were incurred for clerical and other work, stenographers’ fees, house hire, printing, etc., including the sum of $1,227.81, for special services of persons who at the time were members of the board of supervisors. The aggregate expenses, including therein $4,500 for services of counsel, as audited by the board of supervisors December 3, 1883, after the decision of the State assessors, amounted to the sum of $21,446.99. The town of Marbletown also appealed from the equalization of 1882, which appeal was taken at the same time, as the appeal by the city of Kingston, and the two appeals were carried along concurrently, and were heard together by the State assessors, with the same result in each case. The board of supervisors, upon- auditing the costs and expenses as above stated, apportioned them as between the town of Marbletown and the city of Kingston, upon the basis of the total equalized valuation of the town and city respectively — the sum of $18,337.18, being apportioned as the share of the city of Kingston, and the sum of $3,109.81, as the share of Marbletown. Prior to the decision of the State assessors, the board of supervisors and the city of Kingston respectively submitted to the assessors a statement in detail of the expenses incurred by each. The statement of the board "of supervisors corresponded in the aggregate with the sum as audited December 3, 1883, to-wit, $21,446.99, and the expenses incurred by the city, as presented to the assessors, amounted to about the sum of $18,800. Prior to the audit, and on the 21st of November, 1883, the board of supervisors (being then in session) appointed a committee to examine the bills of expenses incurred by the board on the appeals in the equalization proceedings, and to report. The bills prior to that time had been duly verified by the several claimants, and presented to the State assessors, and had been certified as correct by the committee originally appointed to act in behalf of the board, and it appears by uncontradicted evidence that the supervisors of Kingston and the counsel for the city, as early as on the 13th of November, 1883, were informed of the amount of expenses claimed to have been incurred by the board of supervisors. On the 1st of December, 1883, the counsel for the city notified the committee appointed November 21, 1883, that the city desired to be heard upon the matter of the audit, and to give testimony in respect to the bills presented. On the 3d of December, 1883, the committee reported to the board, and on the report being read, the supervisors of Kingston requested the board to postpone the consideration until the next day, in order to give them time to examine the bills and make such objections as they might desire. The board, however, proceeded to act upon the report, and made the audit as before stated. No specific objections were made by the supervisors of Kingston to any of the items. It appears that it was the practice of the board of supervisors at its annual session to adjourn from the fifth of December to the fifteenth, to enable the clerk to prepare the tax warrants for delivery to the proper officers. The return of the board of supervisors in the certiorari proceedings hereafter referred to and which is in evidence in the case, states that the application for delay was regarded as not having been made in good faith, but to prevent the auditing of the bills at that session of the board. On the 7th of December, 1883, the city of Kingston procured a writ of certioriari to be issued to review the proceedings of the board of supervisors upon the matter in question. The affidavits used on the application for the writ show that the supervisors of Kingston at that time had full knowledge of the contents of the bills. The board of supervisors made return to the certiorari and it was1 dismissed by the Supreme Court, May 31,1884. An appeal was taken by the city to the Court of Appeals, and that court having intimated on the argument that the order in the form in which it was made was not appealable, permitted the appeal to be withdrawn, with a view to an application to the court below for an amendment of the order, which application, however, on being made, was denied. Subsequently, and on December 4, 1884, the prior litigation having been ended, the board of supervisors, by resolution, directed that so much of the sum of $21,446.99 originally audited, as was audited to persons who were supervisors, viz., $1,246.09, be levied and assessed on the county outside of Marbletown and Kingston, and that of the balance of said amount, $17,271.77, with interest, making in all $18,308.07, “ be raised, levied and assessed” upon the taxable property of the city of Kingston, and paid to the treasurer of the county. This sum was on the 5th of December, 1884, included in the schedule of amounts to be raised for State and county expenses by the city of Kingston and delivered by the board of supervisors to the defendant on the same day. The common council directed the raising of the amounts of the other items in the schedule, but omitted to take any action in respect to this item. The mandamus proceedings were commenced December 6, 1885.- It is claimed that they were instituted without the authority of the board of supervisors.

      John J. Linson for appellant.
    The final order complained of is appealable to this court. (Code of Civ. Pro;,, § 190, subd. 3; People v. Common Council, 78 N. Y. 56.) The questions raised by the defendant as to the power of the board of supervisors to make the alleged audit on which the proceeding is based, in the manner and under the circumstances in which this audit was made, are reviewable in this proceeding. (People v. Supervisors, 73 N. Y. 173; People v. Lawrence, 6 Hill, 244; Hodges v. Buffalo, 2 Denio, 110; Holstead v. Mayor, 3 N. Y. 430; People v. Stout, 23 Barb. 349.) There is nothing in the proceedings by certiorari to constitute an adjudication as to the validity of the relator’s claim. (People v. Stilwell, 19 N. Y. 531; People v. Hill, 53 id. 547; People v. Bd. Com'rs, 77 id. 605; People v. Bd. Com'rs, 82 id. 506.) The audit of the board of supervisors was void because of their refusal of a hearing. (In re Murphy, 24 Hun, 592; People v. Town Auditors, 82 N. Y. 80; People v. Supervisors, 45 id. 196; People v. Supervisors, 30 How. Pr. 173; People v. Supervisors, 21 id. 322; Chase v. Saratoga Co., 33 Barb. 603; Bouv. L. Dict., tit. “ Audit; ” Comyn's Dig., tit. “ Account,” 7, 8; Stuart v. Palmer, 74 N. Y. 183.) If the statute assumes to give the board of supervisors power to audit or tax their own costs and expenses it is unconstitutional and void. (Cooley on Const. Lim. 175, 410; Lanfear v. Mayor, 4 La. 87; 23 Am. Dec. 477; W. Ins. Co. v. Price, 1 Hopk. Ch. 1; Dimes v. Prop'rs Gd. Junct. Canal, 3 H. of L. Cas. 759; Hall v. Thayer, 105 Mass. 219; Peck v. Essex, 20 N. J. 457; Dively v. Cedar Falls, 21 Iowa, 565; In re New Boston, 49 N. H. 328.) The terms “costs” and “expenses” -are practically synonymous, meaning only such disbursements as are recognized by law and the rules and practice of the courts. (2 Coke's Inst. 112; Stat. of Marlb., chap. 6; id. 288; 6 Viner's Abr. 321; 2 Bacon's Abr. 33; 3 Comyn's Dig. 230; Downing v. Marshall, 37 N. Y. 380; Onondaga v. Briggs, 3 Denio, 174; Hovey v. Hovey, 5 Paige, 551; Doe v. Green, 2 id. 347; Rogers v. Rogers, id. 458; N. Y. L. Ins. & T. Co. v. Davis, 10 id. 507; Lampman v. Hand, 4 id. 120; Denniston v. Vischer, 5 id. 61; Adams v. Stevens, Clark's Ch. 536; Whittimore v. Whittimore, 7 Paige, 38; Mark v. Buffalo, 87 N. Y. 189; Rothery v. N. Y. Rubber Co., 24 Hun, 172; Provost v. Farrell, 13 id. 303; Simer v. Mayor, etc., 3 Law Bull. 51; Haynes v. Mosher, 15 How. 216; Case v. Price, 17 id. 351; Havel v. Cockroft, 9 Bosw. 479; Perry v. Griffin, 7 How. 263; Arnoux v. Phelan, 21 id. 88; Gilman v. Oliver, 14 Abb. Pr. 174.) It was error for the board of supervisors to audit and allow bills presented by its own members for committee work and other services connected with the litigation. (Bd. of Sup'rs v. Van Clief 1 Hun, 554; People v. Lawrence, 6 Hill, 244; Halstead v. Mayor, 3 N. Y. 430; People v. Stoudt, 23 Barb. 349; Chemung Bk. v. Sup'rs, 5 Denio, 517.) The order appealed from should be reversed because the board of supervisors' of the county of Ulster never authorized nor directed this proceeding to be brought. (Subd. 1, § 1, art. 1, tit. 1, chap. 12, part 1, R. S.; 2 R. S. [7th ed.] 924; subd. 4, § 4, art. 1, tit. 2, id., 2 R. S. [7th ed.J 926; § 5, id.; Cooley on Const. Lim. 204; Dill. on Mun. Corp., § 60; Bd. of Excise v. Sackrider, 35 N. Y. 154; Thompson v. Schermerhorn, 6 id. 92; Lyon v. Jerome, 26 Wend. 485; Bellinger v. Gray, 51 N. Y. 610; Davis v. Read, 65 id. 566; Powell v. Tuttle, 3 id. 396; People v. Mut. U. Tel. Co., 2 McCarty’s Civ. Pro. 295; Ruggles v. Collier, 43 Mo. 359; St. Louis v. Clemens, id. 395; Hydes v. Joyes, 4 Bush, 464; State v. Jersey City, 1 Dutch. [N. J.] 309; S. C., 2 id. 444; State v. Paterson, 34 N. J. Law, 163; White v. Mayor, 2 Swan, 364; Smith v. Morse, 2 Cal. 524; Oakland v. Carpentier, 13 id. 540; Day v. Green, 4 Cush. 433; Coffin v. Nantucket, 11 id. 433; Clark v. Washington, 12 Wheat. 40; Ry. Co. v. Baltimore, 21 Md. 93; McInery v. Reed, 23 Iowa, 410; State v. Fisk, 9 R. I. 94.) The order should be reversed, because it is an attempt to have the courts legalize an unlawful act of the relators, and compel an unlawful act of the defendants. (§ 2, art. 1, tit. 1, chap. 12, part 1, R. S.; 2 R. S. [7th ed.] 924; People v. Lawrence, 6 Hill, 244; Chemung Bk. v. Sup'rs, 5 Denio, 517; Sup'rs Richmond v. Ellis, 57 N. Y. 620.) The grant of power to a municipal corporation to tax must be plainly and unmistakably conferred and strictly pursued. (U. S. v. Mayor, etc., 2 Am. L. Reg. [N. S.] 394; Dill. on Mun. Corp., § 605; Sharp v. Spier, 4 Hill, 76; Burnett v. Buffalo, 17 N. Y. 383; Howell v. Buffalo, 15 id. 512; Beatty v. Knowles, 4 Pet. 152.) The board of supervisors of the county of Ulster has no interest in this proceeding nor in the relief demanded, hence it has no standing as a relator. (St. Joseph v. Rogers, 16 Wall. 644; Police Jury v. Britton, 15 id. 566; Parker v. Loomis, 6 Hill, 463; Wilson v. Shreveport, 29 La. Ann. 673; Gause v. Clarksville, 5 Dill. 165; Brady v. Sup'rs, 2 Sandf. 460; 6 N. Y. 260.) The order is in conflict with the well settled principle that mandamus will only lie where there is no other legal remedy. If the city is liable, the owners of claims can maintain an action against it upon them. (Buck v. City of Lockport, 43 How. Pr. 361; People, ex rel. Guidet, v. Green, 66 Barb. 630; Marsh v. Little Valley, 64 N. Y. 112.)

      Alton B. Parker for respondent.
    The audit of the board of supervisors having been reviewed in a direct proceeding by certiorari, it is now res adjudicata and cannot be considered collateral proceeding. (Laws 1873, chap. 327; Laws 1874, chap. 351; Laws 1880, chap. 80; Mercein v. People, 25 Wend. 64; Tidd's Pr. 1051, 1138; Caines, 182; 20 Johns. 80; Matter of Price, 12 Hun, 508.) The judgment of a court or body of competent jurisdiction cannot be questioned in a collateral action or proceeding. (De Renner v. Cautillion, 4 Johns. Ch. 85; Shallenkirk v. Wheeler, 3 Johns. 275; Hadley v. Mayor, 33 N. Y. 603; Morewood v. Corporation of N. Y., 6 How. 386.) Matters once directly decided by a court of competent jurisdiction shall not again be questioned while that decision remains in force, except by a court having powers to review such decision, and in the proper proceeding for that purpose. (Broadhead v. McConnell, 3 Barb. 175; Gardner v. Buckbee, 3 Cow. 120; Wood v. Jackson, 8 Wend. 1; Lawrence v. Hunt, 10 id. 80; People v. Collins, 19 id. 56; Mercein v. People, 25 id. 64; People v. Bennett, 13 Abb. 8.) The judgment or decree of a court possessing competent jurisdiction is not only final as to the subject-matter thereby determined, but also as to
      every other matter which the parties might litigate in the cause and which they might have decided. (Masten v. Olcott, 60 How. 105; Malloney v. Horan, 49 N. Y. 116; 1 Johns. Cas. [Shephard's ed.] 492, note; Le Guen v. Governeur, 1 Johns. Ch. 436.) The judgment and audit standing unreversed is res adjudicata as between the parties and conclusive upon them. (Cooper v. Platt, 13 J. & S. 242; Blair v. Bartlett, 75 N. Y. 150; Kelsey v. Murray, 49 Barb. 231; Matter of Roberts, 8 Daly, 95; Brown v. landon, 30 Hun, 57.) It was the duty of the board of supervisors to defend their act and decision in the making of the equalization appealed from. (2 R. S. [7th ed.] 996; Laws of 1859, chap. 312; Laws 1880, chap. 269; 1 R. S. 364, § 4; Brady v. Sup'rs, 2 Sandf. 460; People v. Sup'rs, 85 N. Y. 328; chap. 327, Laws of 1873.) It was the duty or office of the board of supervisors to contest the appeals ; it was their duty to incur the necessary expense to defend, and as between the board and its employes the expense becomes a county charge. (R. S. [Edm. ed.] 357, 358, § 3, subd. 15; Bright v. Sup'rs, 18 Johns. 242; People v. Sup'rs, 12 Wend. 257; Doubleday v. Sup'rs, 2 Cow. 533; Brady v. Sup'rs, 2 Sandf. 460; People v. Sup'rs, 45 N. Y. 196; Bright v. Sup'rs, 18 Johns. 242.) The board of supervisors had the power to employ persons to render such service as they deemed necessary to have rendered and performed for the benefit of the county in the preparation for trial and the hearing, and its contracts made therein are binding upon the county. (R. S. [7th ed.] 924, chap. 12, tit. 1, art. 1; People v. Sup’rs, 45 N. Y. 194.) The appeals not being sustained, the statute made it the duty of the board of supervisors to audit the costs and expenses arising therefrom and connected therewith. (Chap. 327, Laws 1873; chap. 351, Laws 1874; chap. 80, Laws 1880; chap. 327, Laws 1883; Matter of Murphy, 24 Hun, 594; People v. Sup’rs, 30 How. 173; Chase v. Saratoga Co., 33 Barb. 603.) Their act in examining and allowing accounts chargeable to the county is a judicial act, and the decision is binding upon all parties concerned. (People v. Stocking, 50 Barb. 573; Chase v. Saratoga Co., 33 id. 603; Sup'rs v. Briggs, 2 Denio, 26; People v. Sup'rs, 1 Hill, 195; Brown v. Greene, 46 How. 302; People v. Greene, 47 id. 382; Baldwin v. Sup'rs, 12 id. 204; People v. Sup'rs, 58 Barb. 145; People v. Sup'rs, 21 How. 322; S. C., 24 id. 119; People v. Green, 56 N. Y. 466; Huff v. Knapp, 5 id. 67; Brady v. Sup'rs, 10 id. 260; People v. Lawrence, 6 Hill, 244; Sup'rs v. Briggs, 2 Denio, 26; Martin v. Sup'rs, 29 N. Y. 647; Sup'rs v. Ellis, 39 id. 626; Nat. Bk. v. City of Elmira, 53 id. 53; People v. Stephens, 75 id. 527; In re Tinley, 90 id. 231.) The judgment of a court of competent jurisdiction cannot be questioned in a collateral action or proceeding. (De Riemer v. Cautillion, 4 Johns. Ch. 85; Hadley v. Mayor, etc., 33 N. Y. 603; Morewood v. Corporation of N. Y., 6 How. 386.) The audit and levy having been made by the officers designated by statute for that purpose and in the manner directed by statute, the court will enforce collection. (Potter’s Dwarris on Stat. and Const., 123; chap. 80, Laws of 1880, § 15; 2 Dill. on Mun. Corp. 758; People v. Common Council, 22 Barb. 404.) The proceeding by mandamus is the proper and only remedy. (2 Dill. on Mun. Corp. 757; People v. Sup'rs, 10 Wend. 363; People v. Common Council, 22 Barb. 404.) The board of supervisors is the proper party relator. (Chap. 12, tit. 1, art. 1, p. 924, R. S. [7th ed.]; People v. Halsey, 37 N. Y. 347.) The counsel for the respondent had authority to appear for the board of supervisors on the application for mandamus. (R. S. [7th ed.] 924; 3 Hun, 407; Downing v. Rugar, 21 Wend. 178; Commissioners of Excise v. Sackrider, 35 N. Y. 154.)
   Andrews, J.

The order made by the General Term on the return to the writ of certiorari, was not res adjudícala as to the validity of the assessment. It did not affirm or reverse the proceedings, but dismissed the writ. The allowance or refusal of a common-law certiorari, rests in the sound discretion of the court. The dismissal of the writ was an exercise of this discretion, and the character of the order, as a discretionary one, is not altered by the fact that the court, in its opinion, examined the proceedings and considered them regular. (People v. Stilwell, 19 N. Y. 531; People v. Hill, 53 id. 547; People v. Board of Commissioners, etc., 82 id. 506.) It is claimed in behalf of the city of Kingston, that the statute regulating appeals to the State assessors, from the equalization of the board of supervisors, does not on the appeal being dismissed, authorize the charging against .the town, city, or ward appealing the costs and expenses incurred by the board of supervisors in defending the appeal. This depends upon the construction of the statutes regulating this proceeding. The right of appeal from an equalization made by a board of supervisors, was first given by chapter 312 of the Laws of 1859. Under that act an appeal was authorized to be taken by the supervisors of any town, city, or ward, to the State comptroller, who was authorized to determine what deduction, if any, ought to be made from the valuation fixed by the board of supervisors, of the property of the town, city, or ward (§ 13). Ko provision was made in this act for costs to either party. The act of 1859 was first amended by chapter 327 of the Laws of 1873. This act added a section to the original act as follows: “ § 15. Whenever an appeal shall not be sustained, the costs and expenses arising therefrom .and connected therewith, shall be a charge upon the town, city, or ward so appealing, which shall be audited by the board of supervisors, and levied upon the taxable property in said town, city, or ward.” This provision remained unchanged up to the time of the audit in question. It will be observed that the act of 1873 made no provision for costs and expenses, in case the appeal is sustained. This was first provided for by chapter 351 of the Laws of 1874, which added a clause to section 15, making it the duty of the comptroller, in case the appeal is sustained, to certify the reasonable costs and expenses of the appellant, and providing that the amount so certified should be audited by the board of supervisors and collected from the towns and cities in the county, other than the appellant. The act, chapter 80 of the Laws of 1880, further amended section 15, by substituting the State assessors as the certifying body in place of the comptroller, and also providing that in the appeal is sustained the costs and expenses of both appellant and respondent should be audited and collected from the towns and cities other than the appellant. This was the condition of the legislation on the subject of costs and expenses on appeals in equalization proceedings, in 18S3, when the audit in question was made.

The precise contention of the city of Kingston, as we understand it, is, that the provision in the act of 1873 was not intended, in case the appeal was not sustained, to charge the costs and expenses incurred by the board of supervisors against the appealing town, city, or ward, but was intended simply to protect and indemnify the supervisor by whom the appeal .was brought, against the costs and expenses incurred by him in behalf of his town, and to put it out of the power of the town authorities to repudiate the claim, and saddle upon the supervisor the burden of the costs and expenses of the litigation. This construction has no support in the language of the act of 1873, and still less in the legislation which followed it. The acts of 1874 and 1880 expressly give costs to the appellant as against the county in case the appeal is sustained, and it is quite difficult to suggest any reason for exempting the town, ward, or city from a- corresponding liability where the appeal fails. The construction of the act of 1873 contended for by the appellant is strained and unnatural, and moreover, if the intention of the legislature was, as is claimed, to protect the supervisor as against the town, the act failed to afford complete protection, because it makes no provision for costs and expenses incurred by the supervisor in a case where the appeal is successful. We think the act of 1873 authorized the costs and expenses incurred by the board of supervisors on the appeal to the State assessors to be charged upon the city of Kingston. The costs and expenses in this case audited by the board and chai’ged upon the city embraced compensation to counsel, appraisers, and employes, and disbursements amounting in the aggregate to more than $17,000. It is asserted that many of the items audited were not such as would be taxed in favor of the prevailing party in an ordinary action. It is not claimed that any of the expenses audited were not incurred, or that they were incurred in bad faith. It certainly must be conceded that the preparation on the part of the board of supervisors to meet the issue presented by the appeal was very thorough. It, however, may well be doubted whether it was discreet or just to impose upon the city of Kingston and the town of Marbletown the entire expense of searching for and making abstracts of all the conveyances recorded in Ulster county for -a period of five years, and of appraising every separate piece of real estate in the county. It may be assumed that few appeals will be taken to the State assessors from equalizations at the hazard of paying such enormous expenses. The mass of evidence collected by the supervisors will doubtless be very useful in future equalizations, but the equity of charging the whole cost of the information upon the appellant in this case is not very apparent. But we have to deal only with the question in its strictly legal aspects. The act (Chap. 49 of the Laws of 1876), amending the act of 1859 contemplates that evidence of valuation of real and personal property in the county shall be given, and it appears, without contradiction, that such evidence has usually been produced, and received by the State assessors. The statute of 1873 is very broad. All costs and expenses of the appeal arising from or connected therewith ’’ are chargeable. It constitutes the board of supervisors the auditing tribunal. What particular items shall constitute the costs' and expenses mentioned are not defined. It cannot be said that the employment of necessary appraisers and searchers at a reason able per diem compensation, and making the necessary disbursements in preparing for the investigation, were not legal items of expense chargeable under the statute. The determination as to their allowance the statute relegates to the board of supervisors, and the decision of the auditing board as to the amount, necessity, and reasonableness of the expense incurred, in the absence of fraud„or collusion, is final and conclusive. (Osterhoudt v. Rigney, 98 N. Y. 222.)

It is further objected that the legislature could not constitute the board of supervisors a board to audit the expenses chargeable against the city — the other party to the appeal—on the ground that thereby it was made a judge in its own cause. The authorities are decisive against the objection. The board of supervisors collectively had no interest to be affected by the audit, and its members as individuals had no interest other than was common to every tax payer in the county. In making the audit they were discharging a duty of public administration east upon them by law, and were neither within the letter nor spirit of the statute prohibiting a j udge from sitting in a case in which he is a party or is interested. (People v. Wheeler, 21 N. Y. 82; Folger, J., Matter of Ryers, 72 id. 15; Foot v. Stiles, 57 id. 399.) It is also objected that the board of supervisors denied a hearing to the supervisors of Kingston and their counsel prior to the audit. The supervisors of the city were members of the board. The board, in its aggregate capacity in exercising the powers conferred by statute, represented not only the whole county, but each town and ward therein affected by its proceedings. The return to the certiorari, shows that the demand for a hearing was not made until shortly before the time fixed for the adjournment of the board, and that in fact the supervisors of Kingston had knowledge of the bills presented for audit for some time before the demand was made, and so far as appears might have interposed any objections thereto. We think, under the circumstances disclosed, no legal right of the defendant was invaded by the denial of the application for delay. The inclusion in the original audit of allowances to persons who were supervisors, for special services rendered, amounting in the aggregate to $1,227, is not now in question. This sum is excluded from the amount sought to be charged against Kingston, and its inclusion in the original audit, if erroneous, in the final result inflicted no injury upon the appellant. The point is also taken that the proceeding by mandamus, now under review, was never directed or authorized by the board of supervisors of Ulster county, and that for this reason the order maintaining the writ should be reversed. We entertain no doubt that the board of supervisors had such an interest in enforcing the collection of the costs audited by the board, and charged against the city of Kingston, that it could authorize any proper- proceeding to be taken in its behalf, to that end. It was the party respondent in the appeal. It was its duty, as the representative of the county, to defend its equalization, if it believed it to be just, and as incident to the duty it could incur the necessary expenses in defending its action. The county incurred them, and was in the first instance liable for their payment. The expenses, when incurred, were we think county charges. The statute enumerates as among county charges (1 R. S. 385, § 3, subd. 15), “the contingent expenses necessarily incurred for the use and benefit of a county.” It has been frequently held that services rendered to a county in pursuance of a legal employment, for which no specific compensation is provided, are contingent charges against the county. (Bright v. Supervisors, etc., 18 Johns. 242; People v. Supervisors, etc., 12 Wend. 257; People v. Supervisors of Delaware, 45 N. Y. 196.) It is true that the act of 1873 declares that if the appeal is not sustained, the costs and expenses “ shall be a charge on the town, city,” etc. But it cannot be known until the decision of the State assessors, whether any costs or expenses will be chargeable against the party appealing. The board of supervisors must of necessity incur the expenses in the first instance on its own credit, and having done so, it has a remedy over against the town, city, or ward, in case it succeeds on the appeal. The board of supervisors, therefore, had an interest to enforce the collection of the charge against the city of Kingston. The precise point is that it did not authorize its attorney to pursue the remedy by mandamus, or take other legal proceeding to enforce its right. We think the resolution of December 4, 1883, for the employment of counsel, “in all matters in litigation,” growing out of the equalization appeal, and authorizing him “ to take all necessary and proper proceedings in the name of the board, in the actions and proceedings referred to,” supplemented by the appointment of a committee December 12, 1883, with full power to do all things in the litigation, and incur such expenses therein as they might deem necessary in behalf of the board, conferred ample authority upon the counsel and committee to prosecute this proceeding. The criticism upon the resolution of December 4, 1883, is, that it only refers to matters “in litigation,” and not to future litigation. This is quite too technical in view of the fact that no litigation was then pending, and the resolution would be without meaning unless it referred to the. general controversy, and to litigations which might grow out of it.

The final objection is that the charge against the city of Kingston for the costs and expenses of the equalization appeal cannot be enforced through the ordinary statutory machinery for the collection of taxes in the city. The charter of Kingston provides a special system for the collection of taxes therein. The board of supervisors do not issue any warrant for the collection of the State or county tax chargeable upon the city. Section 72 of the charter requires the board to fix the proportionable amount of State and county charges to be paid by the city, a certificate of which is to be delivered by the clerk of the board to the clerk of the city, and it is then made the duty of the common council to raise the amount by tax, upon the warrant of the city clerk. (§ 73.) The board of supervisors in December, 1884, included in the schedule of taxes to be raised by the city its share of the expense of the equalization litigation. This we think was proper. The expenses were, as lias- been stated, in the first instance a county charge, but ultimately, as the event determined, to be paid by the city. The common council provided for the collection of the other items in the schedule, but omitted to take any action to levy the item in question. The mandamus proceeding was then instituted. It is now said that there was no refusal to collect this item. The omission to perform a plain duty is equivalent to a refusal, and one of the affidavits presented by the defendant in the mandamus proceeding sets forth the reasons “ why the defendant will not raise the money,” etc. We think the direction in the act of 1873, that the costs and expenses shall be audited by the board of supervisors and levied upon the taxable property in said town, city, or ward,” is to be .carried out by causing the same to be levied in the usual way provided for levying and collecting taxes in the city.

The order should be affirmed.

All concur.

Order affirmed.