text:
    Cornell & Wilbur v. Smith.
    An assistant justice elected under the act of 1848, has no jurisdiction, where the defendant and one of the plaintiffs reside in the city, and neither of the parties to the suit reside in a ward within the justice’s district.
    Appearing and pleading without objection, do not waive the defect nor confer jurisdiction 3 the statute being peremptory that the justice shall dismiss the cause.
    Sections 57 and 61 in the code of procedure of 1848, do not extend to the effect and operation of pleadings as prescribed in title six; but only to their form and ■ manner.

    Hence an objection that a justice’s court has not jurisdiction of the person, is not waived by an answer omitting to raise it.
    Nov. 27;
    Dec. 30, 1848.
    Appeal by the defendant, from a judgment rendered in October, 1848, by the assistant justice of the first district in the city of New York, which district embraces the first, second, third, and fifth wards of the city. The plaintiffs below declared for freight of goods. The defendant pleaded a claim for goods of his which they had lost, and a tender of the balance. At the trial, it appeared amongst other things, that the plaintiff Wilbur resided in the ninth ward, in the third of the assistant justices districts; the plaintiff Cornell, in Kingston, Ulster County; and the defendant in the tenth ward, which is in the fourth district. Upon these facts appearing, the defendant moved to dismiss the cause for want of jurisdiction, which motion was denied; and after evidence on both sides, the justice gave judgment for the plaintiffs for the amount of their demand.

      E. Townsend, for the appellant.

      C. Van Santvoord, for the respondents.
   By the Court. Oakley, Ch. J.

The appellant relies on the want of jurisdiction in the court below. The general statute on the subject is to be found in the act of 1813, relative to the city of New York, (2 Rev. Laws, 379, § 103;) which requires actions in the justices courts, to he prosecuted before the justice either in the ward in which the plaintiff or plaintiffs have resided for at least a month next before, or in the ward in which the defendants or one of them reside at the commencement of the action. If one of several plaintiffs reside in a different ward from the others, the suit must be brought only in the ward in which the defendants or one of them reside. And every assistant justice-is thereby directed and required to dismiss every action brought before him contrary to the provisions of that section, with costs, in the same manner as if non-suited on the merits.

The imperative direction to dismiss the suit, precludes any waiver from being inferred by pleading to the action and going to trial.

It is argued, and perhaps correctly, that this statute was modified by the act of 1820, which divided the city into four districts in respect of the assistant justices. (Laws of 1820, ch. 1, page 3.)

The third section provides that all suits shall be commenced before the assistant justice of the wards in which either the plaintiff or defendant shall reside, except suits by the city, or by or against non-residents.

The difficulty in this case is, that neither all the plaintiffs on the one side, nor the defendant on the other, were'non-residents of the city. It is therefore not within the exception in the act of 1820, nor within the jurisdiction as provided by that act in connection with the act of 1813. So we think, that as the law stood before the code of procedure, the justice had no jurisdiction, and was bound to dismiss the suit.

It was however contended with much force, that sections 122 and 127 of the code, which require objections founded on want of jurisdiction of the person to be taken by demurrer or answer, relieve the plaintiffs from the difficulty, as no objection in that form was taken in the court below.

These sections are not directly Applicable to the justices courts. (Code, § 8.) It is sought to make them applicable thus. Section 57 enacts that the provisions of the code respecting forms of action, pleadings and evidence, and the times of commencing actions, shall apply to the courts of justices of the peace, except that the pleadings may he oral, &c. Section 61 extends the provisions of section 57 to the marine court and assistant justices courts in this city, with some .additions, not important here.

It seems, therefore, that for certain purposes section 122 does apply to the court below. The question is whether the word te pleadings,” as used in section 57, is to be construed so as to include the effect and operation of the pleadings as prescribed in the code, or is to be limited to their form or manner.

The pleadings in the justices courts may be oral, but they must be the same kind of pleadings, as provided in the code ; that is, there must be a complaint, a demurrer or answer, and a reply. This is very clearly the effect of the statute. It is further insisted, that the effect is included in the enactment as well as the form and manner, and the whole case turns on this point.

We have considered it very carefully, having in view the importance of the subject; and.we cannot give to the word “ pleadings,” in section 57, the effect which the plaintiff’s counsel claims for it. The more natural application of the word, as used in the section, is to the form and manner. Many consequences might possibly result from holding the contrary, bearing upon the manner of administering justice in "the lower inferior courts, and materially affecting the practice in" those courts. As for example, the necessity-qf proving the plaintiff’s demand on the defendant’s default, which has always been necessary. On the plaintiff’s construction, it might follow that upon the defendant’s default in .appearing and answering-, the justice under section 202 of the code, must give a judgment against him without any proof of the plaintiff’s claim. A rule .of construction that might lead to such consequences, should not be introduced without its being made to appear that such is the clear effect of the statute. The safe construction is to limit the meaning of sections 57 and 61, to the fd%i and manner of pleadings, and not to extend them to their effect and operation. We adopt this view of the matter, and the result is that the justice below did not acquire jurisdiction.

Judgment reversed, without costs.


source: Caselaw Access Project

author: By the Court. Vanderpoel, J.

license: Public Domain

text:
    Corp v. Brown.
    Under the section of the revised statutes forbidding any person to charge more than half of one per cent, for brokerage, soliciting or procuring the loan or forbearance of money, the broker or other person negotiating a loan, is entitled to only one Half of one per cent., whether the loan be for a year, or for a term of years.
    Nov. 22;
    Dec. 30, 1848.
    This was an action brought by the plaintiff, to recover his fees and commissions as a broker, in procuring for the defendant a loan of $30,000, for five years, upon certain real estate of the defendant. The amount claimed was one half per cent, on the sum loaned, for each year, and interest. The declaration contained the ordinary counts, and also special counts for services. The defendant pleaded the general issue as to all but the sum of $150 ; and as to this amount, tender before suit brought. To this latter plea, the plaintiff replied, denying the tender. The cause was tried before Chief Justice Oaklet,, on the 11th day of May, 1848.
    The plaintiff’s counsel read in evidence, a copy of a rule of the court made in this cause, and served upon him on the 18th of December, 1847. This rule was made upon the payment into court by the defendant, of one hundred and fifty dollars, and in terms provided, that unless the plaintiff should accept the same, with costs to be taxed, in full discharge of the action, that sum should be struck out of the declaration in the cause, and the same be paid out of court to the plaintiff.
    It was then shown by the plaintiff, that in the fall of 1847, he had acted as the agent of defendant, in procuring a loan of $30,000 upon the real estate of the defendant, and that he had succeeded in effecting the loan for the period of five years.
    The plaintiff rested. No testimony was offered on the part of the defendant. A verdict was rendered for the plaintiff for $776 25, being the amount claimed and interest, subject to the adjustment of damages, and subject to the opinion of the court, on a case to be made.

      J. M. Mason, and J. L. Mason, for the plaintiff.

      F. B. Cutting, for the defendant.
   By the Court. Vanderpoel, J.

The section of the act upon which this case is to turn, is as follows: “ No person shall, directly or indirectly, take or receive more than fifty cents for brokage, soliciting, driving, or procuring the loan or forbearance of one hundred dollars for one year, and in that proportion for a greater or less sum.” Is the plaintiff entitled, under this statute, to recover his commissions at the rate of half per cent, on the amount procured by him, for every year for which the loan was taken ? or is he to be limited to half per cent., where the loan is for a term of years ?

We have traced this section to its origin, and our researches have satisfied us, that the intention of the legislature never was to allow a broker the inordinate compensation here claimed. Previous to the last revision of our statutes, this provision was found in the “ Act for preventing usury.” (1 R. L. 63, § 3.) In England, it is first found in the “ Act against usury.” (21 James I., ch. 17; 2 Evans’ Stat. 285.) Next in 12 Chas. II., ch. 13; and in 12 Anne, ch. 16. (2 Evans’ Stat. 286, 287.) From these sources they were transferred to our act for preventing usury, passed 8th February, 1787. The revisors have not explained why they removed it from the usury act. They must have thought it more appropriately came under their title “ Of brokerage, stockjobbing, and pawnbrokers.” Still, we may look to the place and the company in which this provision was first found, and so long afterwards continued, for a key to the intention of the legislature in respect to it. In the usury acts of England, above referred to, and in both of ours, (1 R. L. 62, and 1 R. S. 760,) the main section which prohibits the taking of more than a fixed rate of interest, contains these words : “ And after that rate for a greater or less sum, or for a longer or shorter time the latter words being evidently employed to provide, that on a loan of money, the borrower should, for each successive year, pay the sum fixed as interest. In all the English statutes, the provision respecting the compensation to brokers is found in a section immediately preceding the one fixing the rate of interest. So, also, in our revised laws. If in two sections, the one so immediately following the other, in the second a portion of the words employed in the first are omitted, it shows that the legislature had an object in so marked an omission. Now, in the sections to prohibit usury are to be found, not only these words contained in the section fixing the premiums of brokers, “And so after that rate for a greater or less sum," but the additional words, “ Or for a longer or shorter time." The omission of them in the second section, serves to show conclusively to our mind, that the legislature did not intend that the compensation of the broker should be increased in proportion to the “ longer time” the loan was to run. The omission is too marked and studious not to indicate this object. The statute was passed evidently for the benefit of borrowers; to prevent the lender from practically evading the usury act, by interposing his broker between himself and the victim of his cupidity. Its object was to fix a limit beyond which the broker should not charge. It is a well known fact, that loans for a long time on good security, in this city, are more easily procured than short ones; and it is hardly to be presumed that the legislature intended to swell the broker’s compensation according to the greater facility with which his duty is accomplished. Yfe are satisfied, that the legislature intended to give only half per cent, on the sum loaned, without reference to the time it is to run.

The plaintiff must take up with the $150 and interest.

Judgment accordingly.


author: Sandford, J.

text:
    J. L. Norton and others v. S. R. B. Norton and others.

    Every trustee of real estate is presumed to take as large an estate as is necessary for the purpose of the trust, and no more.
    Where before the revised statutes, a husband conveyed to a trustee his title to his wife’s land, in trust to dispose of it for her, and to manage it and collect the rents for her benefit; it was held, that the trustee took an estate for the wife’s life only, with a power in trust to dispose of the husband’s life interest; and the power not having been executed, the trust ceased on the wife’s death, leaving the husband surviving.
    If the deed had conveyed to the trustee the whole life estate-of the husband, the wife’s interest being a mere equitable estate for the life of another, on her death it would go to her administrator, and to her husband as entitled to her personal property subject to her debts; and the trust, if outstanding, would thereupon, by the revised statutes, be converted into a legal estate.
    Dec. 7;
    Dec. 30, 1848.
    This was a suit for the partition of lands in the city of New York, whereof Sarah Norton, the wife of John L. Norton, died seised in fee. Mr. Norton, one of the plaintiffs, claimed a life estate in the premises as tenant by the curtesy. The defendant, Samuel R. B. Norton, among other matters of defence, set up that J. L. N. had no estate, right or interest in the premises.
    The. case was brought to argument on the issues of law formed by the pleadings. It appeared that on the 7th day of November, 1S14, John L. Norton, by deed of that date, for a nominal consideration, granted, bargained, sold, aliened, remised and quit-claimed, unto Hannah Clinton, “ her executors, administrators and assigns, all the estate, right, title, claim and demand, which in virtue of husband of Sarah Norton, he has in all the lands and lots of lands situate in the city of New York, which were devised to her by the will of her father, the late Walter Franklin; but it is nevertheless declared that this conveyance is made in trust for the said Sarah Norton, giving her full power through her said trustee to dispose of said property, collect rents, or do any other matter or thing relating to said property, without the let, suit, molestation or hinderance of the said John L. Norton.” The questions argued, turned on the effect of this conveyance.

      J. H. Power, for the plaintiff.

      H. M. Western, for S. R. B. Norton.

      W. Watson, for other parties.

         Before Sandford, J. at the special term.

   Sandford, J.

In 1814, the premises in question belonged to Mrs. Norton in fee, by devise from her father. Her husband, John L. Norton, was tenant by the curtesy initiate, in the premises. His conveyance to Mrs. Clinton, at the most affected his initiate life estate. It may have operated upon an interest extending beyond the life of his wife, but it was in no sense a conveyance in fee.

Every trustee is presumed to take an estate as large as is necessary for the purpose of his trust, and no larger estate, (a)

The purpose of this trust was, first, for Mrs. Norton; and second, to empower her through the trustee, to dispose of the property, manage it, and collect the rents. The first object, and all of the second, except the power of disposal, were attainable by a trust which should cease on her death. For those objects, therefore, the estate of the trustee cannot be deemed to have extended beyond her life. The power to dispose of the property is limited to her alone. There is no limitation in favor of her heirs or devisees; nor any language from which an intention can be inferred that others were to execute the power. If she had executed it during her life, it would have operated merely to convey her husband’s life estate. In order to have conveyed the fee of the land, it would have been necessary for her to join in the grant, in her own right, the legal estate of inheritance being still vested in her; and probably it would have been equally necessary for her husband to have executed the grant by way of testifying his assent to her execution of the same. At all events, the grant of Mrs. Norton and the trustee, so far as it would have operated by force of the trust deed, would have conveyed no other or greater estate, than the life estate of her husband.

The question remains, was the portion of his life estate, intervening between Mrs. Norton’s death, and its termination by his own death, conveyed to the trustee, and if so, did it descend to Mrs. Norton’s heirs, or to her personal representatives?

I think that the effect of the trust deed was, to convey to the trustee merely an estate for the life of Mrs. Norton ; and that the authority given to her to dispose of the residue of her husband’s life interest, was no more than a power in trust, to be exercised by her through and in the name of the trustee. If so, the trust ceased on Mrs. Norton’s death, and the plaintiff has a legal estate as tenant by the curtesy.

If, however, it be conceded that the deed of 1814, carried to the trustee all his estate, Mrs. Norton’s trust interest under it, was nothing more than an equitable estate for the life of her husband ; and on her death it belonged to her administrators. (2 R. S. 82, § 6, subd. 1; 2 R. L. 365, § 4.) Her husband thus became entitled to the entire interest, as pertonal property, and it vested in him as such, without administration, subject to the payment of her debts. (2 R. S., 75, § 29.)

If the trust were to be deemed outstanding, it would be a naked trust of the plaintiff’s life estate, created by himself, and remaining in Mrs. Clinton, for his own benefit. The revised statutes convert all such trusts into legal estates, (2 R. S. 727, § 47 ;) and the result is, that in any mode of construing this -trust deed, the plaintiff has a legal life estate in possession of the premises in question.

This disposes of the point argued before me at the special term. For the purpose of ascertaining the facts in issue, I will direct a reference, and the order may provide for the requisite examination as to title and liens, preliminary to a partition. .

      ) See Nicoll v. Walworth, 4 Denio, 385.


text:
    Nitchie v. Townsend.
    In order to preserve the lien of a chattel mortgage from year to year, a copy thereof, with a statement exhibiting the interest of the mortgagee in the property, must be filed in the office of the register or clerk, within thirty days preceding the expiration of one year from the time of filing the mortgage ; and a new copy must be filed every successive year.
    Every copy thus filed, is to be regarded as a new mortgage.
    N. was the holder of a chattel mortgage upon the property of C., which was filed June 22, 1846. A copy, with a statement of the mortgagee’s interest, was filed June 18, 1847. T. recovered a judgment against C., and issued an execution thereon, by virtue of which the mortgage property was levied upon on the 19th of Jnne, 1848, at noon. A second copy of the mortgage, with the statement, was filed on the same day, at 40 minutes past 2 o’clock, P. M., after the levy, (the 18th being Sunday.) Held, that the copy filed on the 18th of June, 1847, ceased to be valid as a lien against creditors, in one year from that time ; that although the 18th of June was Sunday, that day must be computed ; and that the execution must prevail, as against the mortgage.
    Nov. 27;
    Dec. 30, 1848.
    This cause was submitted on a case made under the 372d section of the Amended Code. The facts are these; On the 22d day of June, 1846, one Ambrose Cormier made and executed to the plaintiff, a mortgage upon his goods and chattels, then being on the premises occupied by him as a residence and place of business, in Walker street in the city of New York, to secure to the plaintiff $643 50, due to him for arrears of rent upon the same premises, on the 21st day of June, 1845. This mortgage was filed June 22d, 1846. On the 18th of June, 1847, at 50 minutes past 10 o’clock, a copy of the mortgage and schedule annexed, was filed in the office of the register of the city and county of New York, with a statement m writing, signed by the mortgagee in conformity with the statute, that the whole of the principal and interest secured by the mortgage, remained due and unpaid. On the 19th of June, 1848, at 40 minutes past 2 o'clock, P. M., another copy of the mortgage and schedule was filed in the register’s office, with the following statement endorsed thereon:

      “ I, John E. Nitchie, the mortgagee of the mortgage, of which the foregoing is a true copy, do hereby certify that there remains due to me on the said mortgage, the whole of the principal with interest; and that this copy and certificate are filed to continue the notice required by the statute in such case made and provided.

      “ Given under my hand, this 19th June, 1848.

      “ John E. Nitchie.”
    The defendant in this cause was the owner of a judgment for $577 03, recovered against Cormier on the 30th day of May, 1844, in the superior court of the city of New York. On the 19th day of June, 1848, the day of the filing of the last copy of the mortgage, but at half past 12 o’clock of that day, the defendant’s attorney issued an execution upon the judgment for the amount due thereon, and delivered the same to the sheriff, who levied it on the goods and chattels of Cormier which were embraced in the mortgage to the plaintiff. The levy was made by the sheriff on the same day, and before the last renewal had been made, and the copy of the mortgage and schedule filed.

      G. M. Speir, for the plaintiff.

      D. M. Cowdrey, for the defendant.
   By the Court. Vanderpoel, J.

The only question in this case arises under the act requiring mortgages of personal property.to be filed.

One Cormier executed a mortgage of personal property to the plaintiff, which was first filed June 22, 1846. A copy was filed June 18th, 1847, at 50 minutes past 10 o’clock, A. M. The defendant recovered a judgment, and issued an execution against Cormier, by virtue of which the property covered by the mortgage was levied upon on the 19th of June, 1848, at noon, before the filing of another copy of the mortgage, which was filed on the same day, but after the levy. The 18th of June was Sunday. The act provides, that Every mortgage filed in pursuance of the act, shall cease to be valid against the creditors of the person making the same, or against subsequent purchasers and mortgagees in good faith, after the expiration of one year from the filing thereof, unless within thirty days next preceding ■the expiration of the said term of one year, a true copy of such mortgage, together with a statement exhibiting the interest of the mortgagee in the property thereby claimed by him by virtue thereof, shall be again filed in the office of the clerk or register of the town or city where the mortgagor shall then reside.”

We think, that in order to preserve the lien of the mortgage, it is necessary to file a new copy within thirty days preceding the expiration of the first year, and so on from year to year, if the mortgagor wishes to continue his lien. Every copy thus filed must be regarded as a new mortgage.

ft being necessary to file copies every successive year, we are also of opinion, that the copy filed on the 18th of June, 1847, at 50 minutes past 10 o’clock, ceased to be valid, as a lien against creditors, in one year from that time; and although the 18th of June was Sunday, that day must be computed. The day of filing the copy, does not relate back to the day of filing the original mortgage. The execution of the defendant here, must prevail as against the mortgage.

Judgment accordingly.


text:
    The Mayor, &c. of the City of New York v. Corlies.
    Where premises have been demised for a term of years, and are in the actual occupation of the tenant when a penalty is incurred upon such premises, for a violation of an ordinance of a municipal corporation, the tenant is liable for the penalty, and not the landlord.
    Nov. 25;
    Dec. 30, 1848.
    This was an appeal from the assistant justices’ court of the city of New York. The action was brought against the defendant in the court below, as the owner of premises in Water street, in the city of New York, to recover a penalty given by the following ordinance of the city : “ No person shall cast or lay, or suffer to run in or upon, or within three feet of any wharf, or in any lane, alley, lot, or vacant place, to the southward of 14th street, the contents of any sink, tub, privy or cistpool under the penalty of $10 for each offence.” The complainant alleged that the defendant on the 22d of July, 1848, and at divers times, had violated the ordinance by suffering the contents of the sink at his premises in Water street, to run into the adjoining lot. In defence of the action, it was set up that the legal title of the premises in question, was vested in Henry Tail, Joseph W. Corlies, (the defendant,) Valentine G. Hall and Nathaniel Weed, executors, and Cecile Tonnele, executrix of the last will and testament of Laurent Salles, deceased, and that the co-executors and executrix should have been joined with him as defendants. The general issue was also pleaded.
    Upon the trial it was admitted that the premises in question were a part of the estate of Laurent Salles, and that the defendant was one of the executors, and that the legal estate was vested in the executors under the will. The street inspector testified that on the 22d of July, 1848, the contents of the privy on the premises leaked, and ran on to the adjoining lot; that he complained to the defendant, who said he would have it attended to. The ordinance upon which the action was brought, was then duly proved. On the part of the defendant it was shown by the agent of Laurent Salles’ estate, that at the time complained of, the premises in question were leased for 5 years from the preceding May, and were then occupied by the lessee. It was also proven, that by the terms of the lease, the tenant was to make all repairs. The street inspector, on his cross-examination, testified that the defendant was not in possession of the premises. The assistant justice rendered judgment for the plaintiffs.

      W. B. Leeds, for the appellant.
    I. The property in respect to which this penalty was incurred is vested in the executors of Laurent Salles, deceased, of whom the defendant is one. If the owners of the lot are liable at all, the action should have been brought against all the executors, jointly, and not against the defendant alone. Where joint tenants, or tenants in common are chargeable in respect to their real estate, they should all be joined in the action, even though it be in form ex delicto. And if all are not joined the party sued alone may plead in abatement. (1 Chit. Pl. 83, 87.)
    II. But the owners of the property were not liable for the penalty, to recover which the suit was brought. The premises being in the occupation of a tenant who had covenanted to repair, the action should have been brought against him and not against the landlords, or either one of them. (1 Chit. Pl. 83. 4 T. R. 318. Taylor’s Land. & Ten. 95, 96, 101.)

      T. E. Tomlinson, for the respondent.
    The question as to defendant’s liability is reduced to this. Had he such a control over the premises as to have prevented a violation of the ordinance ? If he had, he “ suffered” the violation. The law is well settled that the landlord has such a right. (Taylor’s Landlord and Tenant, 94. Prourd v. Hollis, 1 B. & C. 68, 7 Pick. 76.) This power being in the defendant, it was his duty to have exercised it; and having neglected to do so, he is liable for the penalty incurred.
   By the Court. Vanderpoel, J.

The question is, whether the landlord here is liable for the penalty. The premises had been demised for the term of five years, and were actually in the possession of the tenant, when the penalty accrued. As between landlord and tenant, there is no implied covenant that the former shall repair. (Hart v. Windsor, 12 Mees. & Wels. 68.) And in Payne v. Rogers, 2 H. Black. 350, it was held, that if the owner of a house is bound to repair it, he, and not the occupier, is liable to an action on the case for an injury sustained by a stranger, from the want of repair. Butler, J. said, he agreed that the tenant, as occupier, is prima facie liable to the public, whatever private agreement there may be between him and the landlord ; but if he can show that the landlord is to repair, the landlord is liable for neglect to repair. The court held the landlord, in that case, liable, to prevent circuity of action 'r as the tenant would have his remedy over against "his landlord. In Cheetham v. Hampson,. 4 T. R. 318, an action on the case was brought for not repairing fences, whereby the plaintiff was injured, and it was held, that it could only be maintained against the occupier, and not against the owner of the fee, who is not in possession. Lord Kenyon then well says, “ Deplorable, indeed, would be the situation of landlords, if they were liable to be harassed with actions for the culpable neglect of their tenants.” And Buffer, J. says, that the instances of such actions against owners were, where the tenentes et oc~ eupatoses were the same, but the action lies against them only in the latter capacity.

So in Regina v. Sir John Buckrall, 2 Ld. Ray. 804, an information was exhibited against the defendant for not repairing a bridge, because he was lord of the manor; but it was held, by all the judges, that the defendant’s lessee was bound to repair the bridge. The defendant, as landlord, was not liable for this penalty, and the judgment must be reversed.


author: By the Court. Oakley, Ch. J.

text:
    Winslow & Morris v. Kierski.
    Since the code of procedure, there is no provision nor practice requiring bills of particulars to be given.
    Where the marine court rendered judgment against the plaintiff for not furnishing such a bill, after he had exhibited his complaint, for services as attorney in two specified suits since the code ; the judgment was reversed.
    The plaintiff may be compelled to amend an insufficient complaint, before requiring the defendant to answer.
    January 17;
    January 27, 1849.
    Appeal from the marine court, where Winslow & Morris sued Kierski for services as attorneys and counsellors. They filed their complaint in writing, stating among other things, their retainer by the defendant K. in October, 1848, to prosecute two suits in his behalf in the supreme court, specifying the same ; that they prosecuted the same until K. settled them with the parties by a compromise ; and that the services of W. &. M. in those suits were worth $84, on account of which they had been paid $34. Also, that W. & M. had paid for K., $3 34, for serving the complaint in one of those suits. On the complaint being filed in the marine court, the defendant demanded a bill of particulars of the items of W. & M.’s demand; and the court directed such bill to be given. The plaintiffs, W. & M., declined to furnish a bill of particulars, whereupon the defendant refused to answer the complaint. W. & M. then demanded judgment for want of an answer, which the court refused to grant; and on the contrary, entered a judgment non pros against W. & M., for omitting to furnish a bill of particulars.

      Winslow & Morris, appellants in person.

      Wightman & Clark, for the respondents.
   By the Court. Oakley, Ch. J.

Since the code of procedure took effect, there is no longer any provision or practice requiring bills of particulars to be given. The 135th section of the code was not applicable to the complaint below. There was no allegation, nor any reasonable inference, that the plaintiff’s demand consisted of more than twenty items.

If the complaint was insufficient, the plaintiffs might have been compelled to amend it, before the defendant could have been required to answer. But no application of that kind was made to the court below. It is clear, the court was not authorized to give judgment against the plaintiff because of his omission to furnish the particulars on the demand made.

The plaintiffs claimed against their client for services as attorneys in two specified suits. The code gave a fixed compensation for such services, for each stage of the respective suits. There could have been no surprise or want of information on the part of the defendant, as to the extent and character of the claim. Whether the claim were correct or not, would depend upon the evidence ; and he was at liberty to question both the retainer and the amount.

Judgment reversed.


author: By the Couut. Sandford, J.

text:
    Smith v. Oliphant and Wife.
    An infant is liable for money lent and advanced, which was lent in and about the purchase of necessaries for the infant, and which was so applied directly by the lender, and under his directions.
    The action upon the infant’s liability in such a case, may be brought for money lent and advanced.
    An objection to a pleading, that it is argumentative, is ground for special demurrer only, and the demurrer must show in express terms what portion of the pleading constitutes the alleged argument.
    Where one plea covers several distinct causes of action, a replication to the plea singling out and supporting one of such causes, is not demurrable.
    The money counts combined with a single assumpsit applied to the whole, may be treated in pleading as distinct causes of action.
    January 17;
    February 10, 1849.
    This cause came before the court on demurrers to the plaintiff’s replications. Several grounds of demurrer to each were specified. The action was against the husband, and his sureties on an attachment bond given to discharge a foreign attachment issued against him and his wife. The breaches assigned in the declaration were on promises made by the wife before marriage. Among other pleas, the defendants pleaded that the wife was an infant when the promises were made. The third breach or sub-count in the declaration was in the form of an indebitatus assumpsit for money lent and advanced, money paid, laid out, and expended, and money had and received, by the wife; all combined in a single count, with a single promise. There were other sub-counts for goods, &c. sold, and an account stated. The plea of infancy applied to all these sub-counts.
    The replication, professing to answer all the plea except as to the money had and received, and the account stated, (and as to those, nolle prosequi,) alleged that the goods, &c., were necessaries, and the money paid, &c., was paid, &c., for necessaries; and as to the money lent, it averred that the same was so lent and advanced by the plaintiff in and about, and for the purchase of, and was by his directions at the time applied in purchasing and supplying the infant with necessaries, fit and suitable to her then degree, estate and condition.
    There was a series of sub-counts, founded on promises made by the husband after marriage, to pay these demands against the wife. As to these, the plaintiff discontinued his suit after the defendants pleaded.

      A. Mathews, for the defendant,
    cited as to the claim for money lent, Proburt v. Knouth, 2 Esp. N. P. 472, note; Buller’s N. P. 154, notes a. b. ; Darby v. Boucher, 1 Salk. 278; Earle v. Peake, 1 ibid. 386 ; Chitty on Cont. 151; 3 Steph. N. P. 2052; Randall v. Sweet, 1 Denio, 460 ; 2 Kent’s Comm. 235, 6th ed.

      C. T. Cromwell, for the plaintiff,
    on the same point, cited Randall v. Sweet, 1 Denio, 460; Ellis v. Ellis, 12 Mod. 197; 5 Mod. 368; 10 ibid. 67; Comb. 482; 3 Salk. 197; 1 Ld. Raym. 344; Macph. on Infants, 505, 6.
   By the Couut. Sandford, J.

Several of the causes of demurrer assigned were overruled when this case was before us last fall; and we will confine our attention to the points which were not then decided.

1. The objection to the first replication to the third plea, that it is argumentative, is not properly presented in the demurrer. This is a ground for special demurrer only, and the defect must therefore be specified in express terms, so as to show what portion of the pleading constitutes the alleged argument.

2. The omission to state when the money alleged to be lent to Mrs. O. while sole, was in fact lent. We think the time alleged in the declaration may be referred to in aid of this omission ; but waiving that, the defect is one of so little importance that we will disregard it, and direct an amendment, without imposing any terms.

3. As to the money lent, the replication is said to be double and multifarious, and to plead the evidence. This objection is not well taken, provided the replication be a good answer to the plea on this point; which is the principal question that remains to be considered. There is nothing stated which is not essential to sustain a claim against an infant for money lent; therefore, the formal objections to the statement are ill founded. Whether the whole statement suffices, is another question.

4. The replication, it is said, is bad because it does not answer, or profess to answer, the whole of the plea. The plea goes to all the promises of Mrs. O. while sole. The replication excepts the promises in the declaration, founded on the money had and received and the account slated.

We perceive no difficulty in the matter. A plea may, and often does, cover many distinct and independent causes of action set forth in the declaration. Yet the replication to such a plea may single out one cause of action, and make a good answer to the plea, when it would be no answer in support of any of the other claims. The account stated in this case, is plainly a distinct and independent cause of action. Then as to the money had and received. The three indebitatus claims for money, which are usually called the money counts, have for many years been combined in one count, with a single assumpsit applied to the whole. But they are nevertheless entirely distinct causes of action, and are to be so treated in pleading. On the same principle, and with the same effect, a plea of set-off is permitted to embrace a great variety of causes of action ; and it is deemed a separate plea for each, whenever it becomes necessary to discriminate between them. (Mercein v. Smith, 2 Hill, 213 ; Barbour on Set Off, 164, 5.)

5. The substantial question involved in the demurrer, is whether an infant can be made liable for money lent and advanced, which the lender has lent in and about the purchase of necessaries for the infant, and which was so applied directly by the lender, and under his directions.

In Randall v. Sweet, (1 Denio, 460,) Ch. J. Bronson, in delivering the opinion of the court, says, an infant is answerable for money borrowed under such circumstances. That case may be sustained on the ground, that it was for money paid; but the court treated it as being one for money lent, and held the infant to be liable. We think it may be regarded as an authority upon the point.

If, however, it were an opinion merely, we assent fully to its correctness. It is true, that in general, an infant is not liable for money which he has borrowed; and it has been decided that the lender cannot recover, although it he proved that the infant actually laid out the money in necessaries. The reason given is, that by intrusting the money to the infant, he was enabled to spend it in dissipation if he had been so minded; and his subsequent judicious use of it could not confer a right of action, when none existed at the time of the loan.

On the other hand, there are many authorities which show, that where an infant has incurred a debt for necessaries, one who, at his request, pays such debt, may recover against him for the money paid. On the same principle, and with greater reason, should the infant be deemed liable for money lent and applied by the lender in procuring him necessaries. But it is said, that such an application establishes a demand for money paid for the infant’s use ; not a demand for money lent.

It may well be, that the person so applying his money, can recover it under a count for money paid, laid out and expended. Money lent is not unfrequently applied by the lender, directly to the use for which the borrower obtains it; but it is nevertheless money lent and advanced. In the case made by this replication, the lender, upon the request of the infant, advanced money to the latter, by laying it out in the purchase of necessaries ; thus using his more mature judgment in respect of price and quality. No debt was incurred to the one who furnished the necessaries ; and there was no liability of the infant to be discharged by the payment of the money. This was strictly money lent and advanced.

In the instances of money paid, for which infants have been held liable, the debts had been previously incurred, and the party furnishing the money, simply discharged such debts. It is manifest, that the true interests of an infant would be more likely to be promoted by the direct application of the money to the purchase by the lender; and that the claim founded upon such an advance, stands on higher ground than that for money paid. The replication is therefore good in substance.

The first replication to the fourth plea, labors under one difficulty which is not obviated by our conclusion upon the replication to the third plea. It does not tender an issue or a verification, which is a defect that we cannot disregard. The plaintiff may now amend in this respect, as he should have done on his attention being called to it by the demurrer.

The defendants, if foiled in their objections to the replications, seek to attack the declaration. This, we are satisfied, they are at liberty to do, according to the established practice, upon any ground that would be fatal on a general demurrer.

The defect principally urged is, that the declaration contains two inconsistent causes of action. This is answered by the plaintiff’s showing that he has discontinued his suit as to all the counts founded upon the promises of the husband after marriage. The discontinuance is pronounced by the defendant to be incongruous, and a monster unknown to the law.

This is not the place to decide on the regularity or the propriety of the discontinuance. The portions of the declaration discontinued are to be deemed separate causes of action, the same as if in separate counts ; and in this respect, we perceive no irregularity. The mode and the terms of discontinuing, are matters of practice, to be settled on motion. The other objections to the declaration are not well taken.

Judgment accordingly.


text:
    David M. Watkins v. Jane F. Halstead.
    An express promise can only revive a precedent good consideration, which might have been enforced at law through the medium of an implied promise, had it not been suspended by some positive rule of law; but can give no original right of action, if the dbligation on which it is founded never could have been enforced at law, though not barred by any legal maxim or statute provision.
    A promise made by a married woman to pay for goods purchased by her during coverture, is void ; and the law will not raise an implied promise by her from such consideration. Neither will such precedent consideration support an express promise by her to pay the debt, made after her divorce from her husband.
    The doctrine that a moral obligation is a sufficient consideration for a subsequent promise, is one which should be received with some limitation.
    January 20;
    Feb. 10, 1849.
    This was an appeal by the defendant from the marine court. The plaintiff’s complaint against the defendant was for $52 05 due him for goods, wares and merchandise, together with interest from May 27, 1846. The defendant answered, that at the time of the alleged sale and delivery of the goods, she was the wife of David P. Halstead, who was alone liable for the payment thereof. The plaintiff replied, that the defendant was not, at the time, living with David P. Halstead as his wife; and further, that she was divorced from her husband, by a decree of the court of chancery, on or about the 2d of November, 1846; that although the bill of goods mentioned in the complaint, was contracted for by the defendant on or about the 14th of May, 1846, and while the defendant was the wife of David P. Halstead, yet they were sold and delivered to her while she was living separate from her husband, and as a feme sole; and that after she was divorced from her husband, to wit: on the 2d of November, 1846, she repeatedly promised to pay for the goods, and did pay for a part of the goods originally sold her; and that she then promised to pay the balance of the bill to the plaintiff, to wit, the sum of $52 05. That the plaintiff, at the defendant’s request, brought a suit for the bill against David P. Halstead, in the marine court; and was nonsuited in that action, on the ground that the present defendant had deserted her husband, and was living separate from him when the bill of goods was sold and delivered to her, and that therefore, David P. Halstead was not liable therefor. That since that suit was decided, and subsequent to the divorce, the defendant had recognized the bill as her debt, and promised to pay the same. And that the defendant had a separate property of her own, and an income of $500 per annum, or more, and was abundantly able to pay the debt. On the trial, the plaintiff proved the sale and delivery of the goods to the defendant, in May, 1846, while she was living separate from her husband; though the plaintiff’s clerk, who delivered the goods, was not aware of that fact at the time. The bill amounted to $66 43. She promised in July, August, or September, 1846, to pay the bill. She afterwards came to the plaintiff’s store, and returned goods to the amount of $12 50, which were credited on the account, and she promised to pay the balance. She wanted her husband to pay it, but said if he did not, she would. That the plaintiff sued the defendant’s husband, at her request, and failed in the suit. Another witness testified, that he presented the bill to the defendant, in October, 1847. She promised to pay it as soon as she got the means to do it, and said, she did not intend that the plaintiff should lose the bill; that it had been out of her power to pay it before. She admitted the bill to be correct, and promised to pay it as soon as she got the means.
    The defendant’s counsel admitted, that the defendant obtained a decree of divorce in the court of chancery, against her husband, for adultery, on the 2d of November, 1846. He also admitted that the defendant, through her trustee, owned a separate estate. The amount due, with interest computed to the timp- of the trial, was proved to be $60 24. The defendant thereupon moved for judgment, on the ground that the promise proved to have been made by her, after her divorce, was void for want of consideration ; and that no sufficient moral obligation existed previous to such promise to pay for the same, as the credit was not given upon the strength of the defendant’s liability, but upon that of her husband.
    The court gave judgment for the plaintiff for $60 24, besides costs. The defendant appealed to this court, assigning the following grounds of appeal: 1. Because the summons was not in the form, nor subscribed in the manner, required by the code of procedure. 2. Because the promise proved to have been made by the defendant, was void for want of consideration; neither was it founded upon any sufficient moral or legal obligation to pay for the goods. 3. Because the promise was in fact a promise to pay the debt of another person, viz.: the defendant’s formér husband; and was therefore void upon two grounds, first, as being a debt already existing, and second, for not being in writing. 4. Because the judgment includes $8 10 interest, which the defendant never promised to pay, either before or after her divorce.

      David P. Hall, for the plaintiff.

      T. W. Clerke, for the defendant.
   By the Court. Vanderpoel, J.

The question is, whether there is a sufficient consideration to support the promise upon which the suit is brought? Our first impressions were rather favorable to the action; but a reference to the authorities and principles upon which the notion of a moral consideration to support a promise rests, has satisfied us that the promise relied upon cannot be sustained.

It is not pretended that, independently of the express promise of the appellant after she obtained her decree of divorce, this action could be sustained. If, when the debt was contracted, when the goods were delivered, any person was liable, it was the husband. We see nothing in the case to exempt him from liability. The appellant was then a feme covert, and clearly not liable. Her promise to pay was made after she was divorced, and if that promise is not supported by an adequate consideration, the action must fail.

In a note to Wennall v. Adney, (2 Bos. & Pul. 252,) the rule as to what precedent consideration will support an express promise, is laid down with a precision and accuracy that have commended it to repeated judicial approbation. It is there said, that an express promise can only revive a precedent good consideration, which might have been enforced at law through the medium of an implied promise, had it not been suspended by some positive rule of law; but can give no original right of action, if the obligation on which it is founded never could have been enforced at law, though not barred by any legal maxim or statute provision. This rule was approved by Justice Spencer, in Smith v. Ward, (13 John. 257;) by Bronson, J., in Eyle v. Judson, (24 Wend. 97;) and by Lord Denman, in Eastwood v. Kenyon, (11 Adol. & Ellis, 438.) Tested by this rule, this promise must surely fail. The precedent consideration relied upon, never could have been enforced through the medium of an implied promise, because, 1st. The wife was incapable, at the origin of the consideration, of making a valid promise; and 2d. The goods, in contemplation of law, were sold on the credit of another, (the husband.) The original promise, whether express or implied, on the sale of the goods, when the defendant was under coverture, was altogether void. As Pattison, J., says in Meyer v. Howorth, (8 Adol. & Ellis, 467,) “ Such promise was not like that of an infant, voidable; but was void.” That case was somewhat similar to the present. It was an action for goods sold to the defendant, at her request, and delivered to another with whom, it turned out, that she lived in adultery, and for work and labor, money paid, and an account stated. The defendant pleaded coverture at the time of the promise. The plaintiff replied, that the defendant, at the time when the debt was contracted, was living separate from her husband, and in open adultery with another, to whom she ordered the goods delivered ; that the plaintiff did not, when he dealt with defendant, know that she was a married woman, or that she lived in adultery, and dealt with her as a feme sole ; and that, after the death of the husband, in consideration of the premises, she promised to pay the demand. Although the case turned chiefly on the -pleadings, (the replication being held to be a departure from the declaration,) yet the language of the judges shows, they were of opinion that the action on the new promise, could not be sustained, for the reason, as they say, that the first promise was altogether void, not voidable. The idea cannot be tolerated, that a precedent consideration can support a subsequent express promise, when the law cannot only not raise any implied promise from such consideration, but where even an express promise, made when the consideration originated, would be void.

The counsel for the respondent depends upon the case of Lee v. Muggeridge, (5 Taunt. 36,) where a feme covert, having an estate settled to her separate use, gave a bond for repayment by her executors of money' advanced, at her request, to her son-in-law. After her husband’s decease, she wrote, promising that her executors should settle the bond. It was held, that assumpsit would lie against the executors on this promise of the testatrix. Though that case differs from the present, in the important particular, that the defendant there had an estate settled to her separate use, yet the case has not been regarded as very good authority, at least in respect to some expressions that dropped from the judges in delivering judgment.

In Eastwood v. Kenyon, (11 Adol. & Ellis, 438,) Lord Den-man, in an able opinion, in which he approves of the note to Wennall v. Adney, (3 Bos. & Pul. 294,) says, that the case of Lee v. Muggeridge, must be allowed to be decidedly at variance with the doctrine in this note, which, as before remarked, has been held to be law, in 13 John. 257, and 24 Wend. 97. Lord Denman also speaks of the case of Littlefield v. Shee, (2 Barn. & Adol. 811,) in which Lord Tenterden remarked, that the doctrine that a moral obligation is a sufficient consideration for a subsequent promise, is one which should be received with some limitation. Lord Denham regards this sentence as amounting to a dissent from the authority of Lee v. Muggeridge, where the doctrine is wholly unqualified. He seems to think it remarkable too, that neither in Lee v. Muggeridge, nor in Cooper v. Martin, (4 East, 76.) was there any allusion made to the learned note in 3d Bosanquet & Puller, above referred to. (See also, Geer v. Archer, 2 Barb. Sup. C. R. 420; Kennedy v. Male, 8 Missouri Rep. 698. 8 Alabama Rep. 399.)

On the whole, we are of opinion, that the precedent consideration in this case, cannot support the subsequent promise; and we hold with Lord Tenterden, in Littlefield v. Shee, that the doctrine that a moral obligation is a sufficient consideration for a subsequent promise, is one which should be received with some limitation.

The judgment below must be reversed.


text:
    Palmer v. Wetmore.

      A landlord who owns land adjoining the demised premises, has a right to build on such land, though he may thereby obstruct and darken the windows in the tenement demised.
    Such an act exercised on land not embraced in the demise, cannot operate as an eviction, even if it were a ground for damages.
    January 26;
    February 9, 1849.
    Covenant on an agreement to pay the rent of the house and lot No. 832 Broadway, if default should be made in payment by the tenant, Julia A. Wetmore. The demise was for three years from May 1, 1847, at $700 per annum, payable quarterly, and the rent claimed was for the quarter ending Nov. 1, 1847. The defence was an eviction of the tenant by the plaintiff, prior to November 1, 1847, in several modes set up in the plea.
    At the trial before Sandford, J., in June, 1848, the proof of eviction was rested on two grounds, only one of which it is deemed necessary to mention.
    It was shown, that the plaintiff owned several vacant lots of ground on Fourteenth street, the most westerly of which adjoined the east end of the lot demised to Miss Wetmore, and extended a considerable distance both to the north and the south, beyond the north-east and south-east corners of that lot. In the summer of 1847, the plaintiff commenced the erection of a large hotel on his Fourteenth street lots, the western wall of which was built on the line of the lot so bounding the demised premises on the east. This wall was from fifteen to eighteen feet distant from the rear of the house demised, and as it advanced in height, obstructed the light entering the rear windows of the latter. When the wall reached two stories in height, it darkened the kitchen so that lamps were requisite there in the day time; and it interfered with the free circulation of air. The hotel wall was finally carried to the height of six stories. The windows in it opened upon the back yard of the house in question. Miss Wetmore abandoned the demised premises, about the middle of October, 1847.
    The defendant claimed that the evidence established an eviction of the tenant by the acts of the plaintiff, in respect of light and air, and as to the value of the premises as a boarding house, for which she had hired them.
    The judge charged the jury, that the testimony in regard to light, was not to be taken into consideration. That the plaintiff had a right to erect any building he chose on the adjoining lot. The mere fact that the demised premises had less light in consequence of the hotel building, was not sufficient to constitute an eviction. The jury rendered a verdict for the plaintiff; and the defendant moved for a new trial.

      W. C. Prime, for the defendant.

      W. P. Lee, for the plaintiff.
   By the Court. Oakley, Ch. J.

The defendant’s counsel strenuously contends, that the rule which authorizes every man to use his own property as he sees fit, not trespsssing on his neighbor’s rights, does not apply to a landlord in respect of his lands adjoining premises demised by him; and that such landlord cannot use or improve his adjoining lands in any manner that will interfere with the use or enjoyment of the demised premises in the possession of the tenant. That the relative condition of the two lots must continue the same throughout the term, if any change in the state of the lot not leased, will in any degree lessen or prejudice the enjoyment or uses of the lot demised.

We have examined the question, and do not consider the distinction made as to a landlord’s property a sound one. Where there is no question of ancient lights, (and there is none in this case,) the owner of a lot adjoining a house, may so improve or build upon his lot, as to shut up the windows of such house that are situated in the end or side adjacent to his lot. If this were not so, he would be deprived of the full benefit of his own property. We perceive no reason why a landlord, in respect of his tenant, is more restricted as to his vacant lots, than he would be in respect of any other owner for years, or in fee, of an adjacent house.

But if an action could be sustained for damages in such a case as this, there was clearly no eviction of the tenant. The exercise of a right which appertained to the plaintiff as the owner of the adjoining land, could not amount to an eviction of the tenant of another lot.

Motion for a new trial denied.


author: By the Court.—Vanderpoel, J.

text:
    Palmer v. The Mayor, &c., of the City of New York.
    Where a part of the items of an account bear date within six years before suit brought, they will not draw after them items of a longer standing than six years, so as to protect them from the operation of the statute of limitations; unless there have been mutual accounts, and reciprocal demands, between the parties.
    A special justice of the city of New York, receiving an annual salary for his services in that capacity, cannot recover extra compensation for services performed on Sunday.
    This is so especially where he has, at the end of every quarter during his term of office, rendered an account against the corporation for the amount of his salary, and has received his pay, without making any claim for extra compensation,
    A public officer receiving a fixed salary for his services, cannot rightfully claim a ■ compensation beyond his salary, for performing a new duty, or one imposed upon him since the salary was fixed; much less if he accepts the office with full knowledge of the resolution requiring the extra duties to be performed.
    January 17;
    February 17, 1849.
    This was an action of assumpsit brought by the plaintiff, to recover compensation for services performed by him on Sundays, as one of the special justices of the city of New York.

      Upon the trial, the following facts appeared in evidence: On the 1st of October, 1834, the plaintiff was appointed one of the special justices for the city of New York. His commission expired in 1838, and he was then re-appointed, and continued in office until May 30, 1842. The salary attached to the office was $1600 per year. On the 3d of August, 1836, before his reappointment, a resolution was approved by the mayor, having previously passed both branches of the common council, as follows : “ Resolved, That the Police Magistrates be requested to attend, one or more of them, during the Sabbath.” In consequence of this resolution, the plaintiff was in attendance every Sabbath during his continuance in office, and for the services thus rendered, instituted this action. It appeared, that at the end of each quarter subsequent to his appointment, the plaintiff submitted an account to the defendants, made out against the city of New York, as follows : “ Salary as Special Justice for preserving the peace, &c., for the quarter ending this date, $400.” These accounts were paid from time to time, by the comptroller’s drafts upon the city treasurer, payable to and indorsed by the plaintiff.
    It was contended, on the part of the plaintiff, that the statute did not require the performance of this duty upon the Sabbath, and that the resolution of the common council was in the nature of a special retainer.
    It was contended in opposition to this, that the defendant had rendered no other services than such as were called for by the office, and that he therefore was not entitled to extra compensation ; and in addition to this, that the plaintiff had accepted the office a second time, after the passage of the resolution of the common council, and was therefore well aware of the duties he would be called on to perform ; that the plaintiff was precluded by his accounts rendered, from setting up the claim in suit; and that, at all events, the statute of limitations was a bar to his claim for the services preceding his last appointment.
    A verdict was taken for the plaintiff for $1,835 48, being the amount claimed and interest, subject to the opinion of the court.

      E. Sandford, for the plaintiff.
    I. The plaintiff’s duties as a special justice, are provided for by the act of 1813; (Laws of 1813, ch. 86, secs. 24, 25, 26, 43;) and in the due exercise of the powers thereby conferred, the common council, (acting within the scope of their authority,) fixed the compensation of such officers, but exempted them from doing duty on Sunday. (Ibid. sec. 53.)
    II. The resolution of the common council, of the 3d of August, 1836, was a retainer or request by the defendants to the plaintiff, to perform extra services which the special justices were not required to do by the statute under which they were appointed.
    III. An implied assumpsit therefore arises, that the plaintiff is entitled to recover for the extra work incurred on Sundays at the request of the defendants.
    IT. The plea of the statute of limitations does not apply. The first item of the plaintiff’s account was more than six years old, but the last is in May, 1842. (Chamberlain v. Cuyler, 9 Wend. 126 ; Tucker v. Ives, 6 Cow. 193.)

      A. J. Willard, and Willis Hall, for the defendants.
    I. The plaintiff has rendered no services but such as are called for in the regular discharge of the duties of his office, and is consequently entitled to receive no extra compensation.
    (1.) A salaried officer cannot claim extra compensation for services requisite to the fulfilment of his official duty, although arising from the application of unusual vigilance and faithfulness. (Hatch v. Mason, 15 Wend. 44 ; Bath v. Salter, Hutch’s. Rep. 54; Phœnix v. Supervisor of New York, 1 Hill, 362; United States v. Fillebrown, 7 Peters’, 28.)
    (2.) The attendance of the plaintiff at the police office on Sundays, if at all necessary, was called for by the nature of the office. (Watts v. Van Ness, 1 Hill, 76.)
    II. The act of 1813, in prohibiting the common council from directing the police courts to be kept open on Sundays, does not convert that into an extra service which would otherwise have been a part of the ordinary duty of the plaintiff, as police officer.

      (1.) ■ So far as the attendance on Sundays was prohibited by law, the act, being illegal, cannot form the ground work of any claim for compensation.
    (2.) If the Common Council had no right to require the plaintiffs to attend on Sundays, the officers had no right to attend.
    III. The act of 1813 only intended to prevent the police, court from being open on Sundays, but did not interfere with the officers attending at the police offices in the performance of other-duties. On the contrary, it imposes on the special justice the duty of discharging the night-watch every morning, which necessarily includes Sundays.
    IY. The act of 1844 virtually repeals the prohibition of the act of 1813, in this respect.
    Y. If the plaintiff have a valid claim for extra services, it is not against the city, but the state at large; or, if a county charge, against the supervisors.
    (1.) The city can only be made liable by virtue of a law imposing a particular duty upon it, or
    (2.) In pursuance of some contract, express or implied, neither of which circumstances apply to this case.
   By the Court.—Vanderpoel, J.

The question involved in this case was presented to the court more than two years ago, in the case of Henry W. Merritt, and was then decided in favor of the plaintiff. One of the then members of the court did not concur in the conclusion to which it then came. Since that period, a partial change has taken place in the organization of the court, which accounts, in some measure, for the discrepancy between the conclusion in the present case, and the one formerly announced in that of Merritt. The 37th section of the act to reduce general laws relating to the city of New York into one act, provides that three justices shall be appointed as oftep as it shall be deemed necessary, each of whom shall be denominated, in the commission to him, a special justice for preserving the peace in the city of New York. (2 R. L. 350.) The 43d section, (p. 355) provides that it shall be lawfnl for the Common Council of the city, from time to time, to direct, by an ordinance or ordinances, the keeping open of the police office for the transaction of the business thereof, at all such times .(Sundays excepted,) and at such place or places, as may be deemed most beneficial to the public, and that it shall be the .duty of the special justices, and all the officers employed in the police office, to obey such mandate.

The plaintiff was first appointed in 1834. It is admitted that -his commission expired in 1838, and that he was then re-appointed.

In regard to his claim for the period anterior to his last appointment, the statute of limitations is an insuperable bar. That portion of his claim which accrued before six years prior to the commencement of the suit, is not saved by 2 R. S. 224, § ¡6, which provides that in actions of debt, account, or assumpsit brought to recover any balance due upon a mutual, open, and current account, the cause of action shall be deemed to have .accrued from the time of the last item proved in such account. One or more items of an account, within six years before suit brought, will not draw after it items beyond six years, so as to protect them from the operation of the statue of limitations, unless there have been mutual accounts and reciprocal demands between the parties. (Kimball v. Brown, 7 Wend. 322; Coster v. Murray, 5 J. Ch. R. 522; Edmondstone v. Thomson, 15 Wend. 554; Hallock v. Losee, 1 Sand. R. 220.) It cannot be pretended that there were any mutual accounts and reciprocal demands between these parties. If the defendants were under a legal obligation to pay for the service for which the suit was brought, the plaintiff might have enforced such payment, if not immediately after the rendition of the service, at least at the end of every quarter. By holding, that the statute of limitations is a bar to this portion of the plaintiff’s claim, we do not mean to imply that it would be valid, in the absence of the statute. We do not feel called upon to express any opinion upon the other objections urged against this branch of the claim, as we deem the statute of limitations a conclusive bar to it.

As to that portion of the claim which accrued subsequent to the second appointment of the plaintiff, we consider the objections to it conclusive on other grounds. The salary of the justice had been raised to sixteen hundred dollars per annum. At each quarter, subsequent to his appointment, the plaintiff rendered an account of $400, as salary as special justice for preserving the peace, for the quarter ending” on the day of the date of his account, which account for each quarter, was paid by the defendants. This circumstance, at least, goes far to show the construction which the plaintiff himself then placed upon the rights and duties of himself and the defendants. No charge-for extra or special services was then- made or pretended to by him. The plaintiff, on his re-appointment in 1838, accepted his- office with this resolution staring him in the face—a resolution requesting him to attend at the police office on Sunday, in his official capacity. If he performed these services as part of his official duty when he received a stated salary, lie cannot sustain an extra charge for them, whether recently after rendering the service, he presented a claim or not. But when,- quarter after quarter, and year after year, he presented his account for his salary, without lisping a word about this claim for extra service, it is pretty manifest that the charge is the result of an after thought, and was not contemplated when the service was rendered. But this consideration furnishes not the most formidable impediment to the plaintiff’s action.

If the duty were legitimately imposed upon the plaintiff, and were a duty appertaining to, or connected with, his office, then he could not sustain his action, even if the duties were imposed after his second appointment; for it is well established that a salary officer cannot rightfully claim compensation extra his salary, for performing a new duty, or one imposed by the legislature, since the salary was provided. (Phœnix v. The Supervisors of New York, 1 Hill, 362.) If the new duty renders his office too onerous, he can resign. So a constable, or other ministerial officer, the fees of whose official services are prescribed by law, cannot maintain an action on a promise of extra compensation for extra service, although services beyond what could legally be required, are rendered by the officer. In Hatch v. Mann, (15 Wend. 44,) the Chancellor and Senator Tracy inveigh -with well merited severity against the idea that a promise to give extra compensation to an officer for extra diligence or extra service, can be valid.

If, on the other hand, the corporation had no right to exact the service, either because the statute, by excepting Sunday, intended to guard against the performance of any secular seryices oh that day, or, because it was beyond the legal powers of the corporation to request or demand the performance of the service; in either alternative, the law cannot imply a valid promise to pay for the service. In Watts v. Van Ness, (1 Hill, 76,) it was held that an attorney’s clerk, engaged at a weekly salary to do such things as are usually done by clerks in attorney’s offices, is prohibited, by the statute to prevent working on Sunday, from recovering from his principal a compensation extra his weekly allowance, for services as a clerk, performed on that day. If the plaintiff was not compelled to perform Sunday service because it was Sunday, then the services were within the prohibition of the statute against working on Sunday, (1 R. S. 675, § 70,) and therefore do not furnish the legitimate ground of a claim against the defendants. If the corporation, in their official or legislative capacity, had no right to make the request contained in their resolution, then they transcended their authority, and could not create a claim against the city by it. If they had a right to request the performance of the service, then it was part of the official duty of the plaintiff, when he accepted his office, on his re-appointment, and was covered and satisfied by his salary. Then he accepted the office in reference to the duties and burthen which belonged to it, this Sunday service being one of them. In every point of view in which we have looked at the case, we find insurmountable difficulties in the way of the plaintiff’s recovering. There must, therefore, be judgment for the defendants.


author: By the Court.—-Sandford, J.

text:
    Olmsted v. Elder.

    Under the act for loaning the United States deposit fund, (Laws of 1837, eh. 150,) on the failure of the borrower to pay the annual interest at the time prescribed, the loan commissioners become seised of the lands mortgaged, so that the mortgagor (not having paid the debt and costs after the default and before the sale,) cannot maintain ejectment to obtain possession.
    The production Of the mortgage having no entry upon it of the payment of interest, and the efflux of time, are sufficient to establish presumptively the default in the payment of the annual interest.
    The loan commissioners having assumed to sell on such a default, and conveyed, to a purchaser who entered into possession, it was held, that if the sale were irregular, the deed transferred the mortgage to the purchaser, who thus being a mortgagee in possession, could retain the possession until redemption.
    January 22, 24;
    Feb. 17, 1849.
    Ejectment for a lot in Ninth-street, in the city of New York. The declaration claimed the premises in fee, and alleged a seisin of the plaintiff, on”the 5th January, 1841. At the trial before Oaklet, Ch. J„, in February, 1848, it was admitted that on the 20th of April, 1838, S. A. Bostwick owned the premises in fee, and that the defendant was in possession at the commencement of the suit. The plaintiff then showed title in herself deduced from Bostwick.
    The defendant then read in evidence a mortgage executed by Bostwick to the loan commissioners of the city and county of New York, appointed under the act of 1837, to loan the United States deposit fund, dated April 18th, 1838, for $3000, with interest, payable on the first Tuesday of October, annually. There was no indorsement or proof of payment of the interest, which fell due in October, 1841. ■ It was admitted that the premises were duly advertised by the United States Loan Commissioners, to be sold on the first Tuesday of February, 1842, pursuant to the act of 1837. The defendant next read in evidence, a deed dated April 1, 1842, executed by the Loan Commissioners, conveying the lot in question to the defendant, stating the same to have been on a sale made at the time advertised. This deed was objected to on several grounds, not necessary to be enumerated, because there was no proof of the non-payment of the interest. The defendant then rested.
    The plaintiff then proved that only one of the Loan Commissioners was present at the sale; that the lot was struck off to R. Van Rensselaer, as the highest bidder, who signed his name to the prescribed terms of sale- in the commissioner’s minute book, which were fifteen per cent, at the sale, and the balance on the 1st of April, 1842. That afterwards Van Rensselaer struck out his name in the minute book, and inserted the name of the defendant, who was not present at the sale. There was some other testimony given, which does not bear upon the case as reported. The plaintiff requested the judge to chargé the jury, that the sale made on the first Tuesday of February, 1842, by the Loan Commissioners to Robert Elder was void, because: ' ■
    1st. Only one of the commissioners was present at the Sale.
    2d. Because the premises were struck off to Van Rensselaer, who signed the agreement at the sale, but no agreement at the time was made with the defendant, or signed by him, and after-wards the premises were conveyed to him.
    3rd. Because the terms of sale were fifteen per cent, cash, and the balance- on the first day of April. The act of 1837 only authorizes the commissioners to sell for cash.
    The judge refused so to charge, and directed the jury to find a verdict for defendant, to which the1 counsel for the plaintiff then and there excepted.
    The plaintiff moved for a new trial on a bill of exceptions.

      W. Rutherford, for the plaintiff.

      H. F. Clark, for the defendant.

         Vanderpoel, J. having formerly been consulted as counsel as to the matter in suit, did not sit in.this case.

   By the Court.—-Sandford, J.

Several questions were argued, which it is unnecessary for us to decide in disposing ot the motion for a new trial.

There are two grounds upon which we think the defendant is entitled to recover:

1. By the thirtieth section of the act for loaning the United States deposit fund, (Laws of 1837, c. 150,) on the failure of the borrower to pay the annual interest at the time prescribed, the Loan Commissioners become “ seised of an absolute and indefeasible estate in fee” in the lands mortgaged, and the mortgagor is thereupon barred and foreclosed of all equity of redemption. He is permitted to retain the possession until the day of the commissioners’ sale, prescribed by the act; and on paying the mortgage and costs before the time of sale, the title in fee to the premises will revert to, and re-in vest in the mortgagor. (§ 30,33.)

The mortgage was produced on the trial, and the time for the payment of the interest due in October, 1841, had elapsed. There was no proof of the payment of the interest. Moreover, there was competent evidence to show affirmatively that it was not paid, if any such proof were necessary, beyond the efflux of time. It is the duty of the commissioners to enter on the back of the mortgage a minute of every sum paid to them on such security. (§ 28.) The mortgage exhibited no minute of the payment of the interest in question; and this established presumptively the fact of its non-payment.

The direct and necessary consequence is, that at the end of twenty-three days from the first Tuesday of October, 1841, the title in fee to these premises vested in the loan commissioners. The act is so rigorous, that it leaves not a vestige of title or estate in the mortgagor or his assigns. The evidence thus proved title out of the plaintiff, and she made no attempt to show that it ever reverted to, or re-vested in her, by redemption or otherwise. This was sufficient to entitle the defendant to a verdict, without in any manner connecting himself with the outstanding title.

2. The second ground of defence rests upon the same evidence, with the addition of the deed from the loan commissioners. The deed was sufficient, at least, to transfer to the defendant the money due upon the mortgage. The interest - on the mortgage was in arrear, and the mortgagees were entitled to foreclose, or to sell under the statute. The defendant, therefore, occupies the position of a mortgagee in possession of the premises mortgaged; the money secured being due and unpaid. Although since the revised statutes, a mortgagee cannot obtain possession at law, on default of payment, there is no doubt that he may retain the possession until redemption, if he succeed in procuring it by the mortgagor’s consent, or in any lawful mode.

In placing our decision upon these grounds, we do not intend to intimate any doubt as to the sufficiency of the defendant’s title under the sale and deed of the loan commissioners. We leave that subject untouched.

Motion for a new trial denied.


text:
    Hoyt v. Lynch.
    In order to test the credibility of a witness called to prove the plaintiff’s demand, it is competent to show by him that a transfer of the establishment in which the demand arose, made by him to the plaintiff, was a sham and fraudulent sale, and thus that the witness is really interested in the demand in question.
    The evidence is admitted to impeach the witness, not to impeach the plaintiff’s title to the demand.
    An order drawn at the foot of a bill rendered for services done, expressing a sum certain as due by the debtor in such bill, on a third person, requesting him to pay the bill, and charge it to such debtor, is a bill of exchange, which, by the statute, must be accepted in writing.
    Jan. 23;
    Feb. 24, 1849.
    Assumpsit on an order drawn upon the defendant, with the common counts. At the trial, it appeared that Smith & Woglom, builders, erected certain buildings for the defendant, in Williamsburgh, in 1847. The plaintiff claimed to have tinned the roofs and put up the gutters for those buildings, and his bill for the work, rendered to S. & W. amounted to $300 88. They gave an order on the defendant, written- at the foot of the bill, as hereafter set forth. The order was presented by one Harris to the defendant, who said he could not pay it until he went and saw how the buildings progressed. The plaintiff then-proved by Harris, that- two or three days afterwards the defendant met the latter at the buildings, and- there promised to pay the order as soon as the sashes were put in, and those were put in early in Jauuary, 1848.
    The bill and order, were read in evidence in these words, viz.:—

      11 New York, 16th Déc., 1847.-
    “ Messrs. Smith & Woglom,
    “ To C. H. Hoyt, Dr.
    " To tin roof, 86 feet by 37J feet, 3225 feet, at 7l¿ c. $241 87 112 of 3 in.-leader . 1-1-20
    85 feet of copper gutter,. 4s. 6d„- „• 47 81
    $300 88”
    M Williamsíufgh, Dec. 16th, 1847.
    a Mr. J. Lynch,
    ci Please pay the above bill, being the amount for tinning your houses on South Sixth-street, and charge the same to our account,
    “ And much oblige yours,
    “ Smith & Woglom.”
    On cross-examination of the witness Harris, he testified that he acted as agent or foreman for the plaintiff in doing the work for S. & W., and on making the bargain, he and plaintiff conversed with S. & W. about it. The contract was made with him as foreman for the plaintiff, and was not his, but the plaintiff’s. The latter had been principal in the shop from Oct. 28, 1847, when witness sold the shop to him, and he paid for it.For two or three years before, he had worked at wages there for the witness/

      The defendant’s counsel then asked the witness—“ Whát was the price and in what did you receive your pay, when you Sold out to -the plaintiff?”
    This question was objected tb by the plaintiff’s counsel, and the objection sustained by the judge.
    Defendant next asked—“ Were you not at the time of the sale to the plaintiff notoriously insolvent ?”
    This question was objected to by the plaintiff’s counsel, and the objection sustained by the judge.
    . The defendant’s counsel here offered ttLshowby this witness; that the sale by the witness tb the plaintiff was a sham and fraudulent sale. To this the plaintiff’s counsel objected, and the judge sustained the objection.
    The counsel for the defendant duly excepted to all these decisions. '
    Further evidence was given in the cause on both sides, which it is not necessary to state. • It was shown that Smith & Woglom failed January 10th, 1848, -and gave up their contract, without having completed the buildings.
    The defendant moved for a nonshit which was denied j and the cause was ultimately submitted to the jury, who rendered a verdict for the plaintiff
    The defendant moved for a new trial.

      S. M. Meeker and J. E. Cary, for the defendant.
    J. M. Van Cott, for the plaintiff.
   By the Court. Oakley, Ch. J.

We will first examine the question upon the admissibility of the evidence ruled out on the cross-examination of Harris.

The objection to this evidence was taken and presented to us, as if the action must fail,- if fraud were proved ; and in that aspect of the matter, the decision at the trial was right. But it manifestly appears that the inquiries made of the witness had another object, viz., to - show that Harris was the owner of this demand, notwithstanding-the.assignment; that the money, if recovered, would belong to him , and thus to show an interest of Harris in the demand, such as the jury would regard in estimating the weight of his evidence. He proved the defend-, ant’s promise to pay the order, and his credibility was very mar terial to the plaintiff’s case. In this view of it, vfe think the questions ought to have been allowed by the judge. The answers sought would not have impeached the plaintiff’s -title to the demand, although they might have forced him to prove it by another witness. On this ground, there must be a new trial.

There was another question argued, which must arise on a new trial, and it is right that we should express our views upon it at this time. It is said that the order upon which the suit is founded, is a hill of exchange, and that there is no written acceptance of the same.

On consideration, we have come to the conclusion that this is a bill of exchange. It is an order in writing, drawn by one party on another, requesting the latter to pay a certain sum of money to a third party, at all events; depending upon no contingency, and payable out of no particular fund. It comes within the reason of the statute requiring a written acceptance to charge the drawee. It is true this order is not negotiable, but that is not necessary to make it a bill of exchange.

Now trial granted.