author: Andrews, J.

text:
    The Mayor, Aldermen and Commonalty of the City of New York, Respondent, v. The Second Avenue Railroad Company, Appellant.
    Where a covenantee has made repairs which the covenantor was bound but neglected to make, the sum actually expended by the latter is prima facie, the amount of damages, and where no fraud is shown, or facts to impeach the reasonableness of the account, is the sum he is entitled to recover.
    The parties entered into a contract by which defendant covenanted ‘ to pave the streets in and about the rails ” of its road and “to keep the same in repair.” In an action to recover damages for a breach of the covenant to repair, it appeared that defendant’s road consisted of two tracks ; that while the laying of the road originally would only require the actual displacement of the pavement for the distance of about eighteen inches on the side of each rail, it would so disturb the intermediate pavement as to require it to be relaid. Held, that the contract bound the company to pave and keep in repair so much of the space between the tracks as was disturbed in the original construction of the road, and so it was bound to keep in repair the whole of such space.
    It was shown on behalf of the plaintiff, without contradiction, that defendant having, after due notice, failed to put in repair a street covered by the contract which was out of repair, the city proceeded to make the repairs, employing laborers at the usual wages paid by the city and purchasing materials in the usual way. Held, in the absence of evidence, that the work and materials employed exceeded the necessary amount, or that the charges were excessive, a direction to the j ury to render a verdict for the sum expended was proper.
    Plaintiff called as a witness W., the foreman who had general charge of the work, under whom were two gang foremen, each having charge of a separate gang of laborers. W. kept a time-book in which was entered the name of each man employed. He visited the work twice a day and testified that while there he checked on the time-book the time of each man as reported to him by the gang foremen, who did not see the entries ; also that he marked the men’s names as he saw them and knew their faces. The gang foremen testified that they correctly reported to W. the names of the men who worked, and if any did not work full time they reported that fact also. Upon this proof the time-book was admitted in evidence. Held no error.
    A written memorandum or account made by W. of materials used was also admitted in evidence. W. testified that the entries therein were made from daily information given him by the gang foremen on his visits to the work, and that he correctly entered the amounts as reported. The gang foremen testified that they reported the amounts correctly ; neither of them saw the entries made or had any present recollection of the specific quantities so reported. M., one of them, testified inferentially that •when the reports were made he had personal knowledge of the facts reported. C., the other foreman, testified that his reports of stone delivered were made upon information derived from a carman, who drew and counted the stone. The witness did not verify the count and the carman was not called as a witness. The account was objected to generally. Held, it was clearly admissible as to the items reported by W., and the general objection was not available to raise the question as to the admissibility of the items entered on the report of 0.; that a specific objection should have been taken to those items.
    Where an account has been kept in the ordinary course of business of laborers employed in the prosecution of a work, based upon daily reports of foremen having charge of the men, who, in accordance with their duty, reported the time to another subordinate of a higher grade of the same common master, and who, also, in time, in accordance with his duty, entered the time as reported, and where the foremen testify that they made true reports and the person who made the entries, that he correctly entered them, the entries so made are admissible as evidence to show the amount of work done.

      It seems, however, this rule does not admit as evidence a mere private memorandum, not made in pursuance of any duty owing by the person making it, or when made upon information derived from another, who gave it casually'and voluntarily, not under the sanction of duty or other obligation.
    (Argued June 2,1886;
    decided June 22, 1886.)

      Appeal from j udgment of the General Term of the Supreme Court, in the first judicial department, entered upon an order made December 31, 1883, which affirmed a judgment in favor of plaintiff directed by the court.' (Reported below, 31 Hun, 241.)
    This action was brought to recover damages for an alleged breach of contract.
    Defendant, having obtained permission to lay its railroad with a double track over portions of certain streets in the city of Hew York, entered into a contract with the city by which it' covenanted among other things “ that the said company shall pave the streets in and about the rails in a permanent manner and keep the same in repair to the entire satisfaction of the street commissioner.” Defendant failed to keep one of the streets covered by the contract in repair. Hotice of the condition of the street and that if it did not, within thirty days thereafter, repair the same, the department of public works would make the necessary repairs and defendant would be held responsible for the expense was served upon defendant. It having failed to comply with the notice, the work was done by the department and the expense thereof plaintiff claimed to recover herein.
    The further material facts are stated in the opinion.

      Austen G. Fox for appellant.
    The measure of damages in an action brought to recover damages for breach of a covenant to repair is the reasonable value of the labor and materials used in making the repairs. (Sutherland on Damages, 139; State v. Ingram, 5 Ired. [N. C.] 441; Rutland v. Dayton, 60 Ill. 58; Myers v. Burns, 35 N. Y. 269-70.) Even if the gang foremen had both had personal knowledge of the facts, which were reported to Wilt, plaintiff’s foreman, still the latter’s memorandum of what they told him was inadmissible as evidence, in the absence of testimony as to its correctness by some witness who once knew the fact, and knew that the memorandum. stated the fact truly. (Peck v. Valentine, 94 N. Y. 569; Gould v. Conway, 59 Barb. 355; Merrill v. I. & O. R. R.

      Co., 16 Wend. 586; Chaffee v. U. S., 18 Wall 516, 543; Lewis v. Kramer, 3 Md. 265, 266 ; Thomas v. Price, 30 id. 483; Smith v. Lane, 12 Serg. & Rawle, 80 ; Bradley v. Davis, 26 Me. 45, 54; Venning v. Hacker, 1 Hill [S. C.], 584; Gage v. McIllwain, 1 Strobh. 135; Payne v. Hodge, 7 Hun, 612; affirmed, 71 N. Y. 598; Shear v. Vandyke, 10 Hun, 528; Wilson v. Knapp, 70 N. Y. 596.) A memorandum of what one witness told another is hearsay and is inadmissible, unless at least one of the witnesses had personal knowledge of the fact which the memorandum purports to record. (Brain v. Preece, 11 M. & W. 773.)

      D. J. Dean for respondent.
    “In and about the rails” must mean all the space within the outside tracks, and also the space outside the rails which was immediately adjacent thereto. (McMahon v. Second Ave. R. R. Co., 75 N. Y. 236.) Upon the proof of the failure of the defendant to keep the street in repair, the plaintiff was entitled to recover the sum which it cost to put the street in repair. (City of Brooklyn v. Brooklyn C. R. R. Co., 47 N. Y. 475; Dorwin v. Potter, 5 Den. 306.) The proper measure of damages is compensation for the actual loss suffered by the plaintiff in consequence of the default of the defendant. (1 Sedg. Dam. [7th ed.] 449.) .The time-book of the general foreman was properly admitted in evidence. (71 N. Y. 598 ; 85 N. Y. 642.) It being fully established that the repairs made were necessary, and that plaintiff had the right to make them, no lack of good faith being shown on plaintiff’s part, and there being no evidence that the. repairs themselves were extravagant or more extensive than the street required, the plaintiff was entitled to recover the cost of making them. (Myers v. Burns, 35 N. Y. 270 ; Witty v. Mathews, 52 id. 514; Cook v. Soule, 56 id. 423; Dorwin v. Potter, 5 Den. 308; Walker v. Swazer, 3 Abb. Pr. 138 ; Flynn v. Hatton, 43 How. 350 ; Lockrow v. Horgan, 58 N. Y. 636 ; Humaston v. Beekman, 20 Week. Dig.)
   Andrews, J.

The construction of the covenant of the defendant, the Second Avenue Railroad Company, contained in the instrument of December 15, 1852, to pave the streets “ in and about the rails ” in a permanent manner, and to “ keep the same in repair to the satisfaction of the street commissioners,” was considered in the case of McMahon v. Second Ave. R. R. Co. (75 N. Y. 231), and it was held that the covenant bound the company to pave and keep in repair so much of the space between the tracks as was disturbed in the original construction of the road. Upon this construction of the covenant, the defendant was bound to keep in repair the whole space between the tracks of its road on Second avenue, between Houston and Forty-second streets, as it was shown that while the laying of the road originally would only require the actual displacement of the pavement for a distance of about eighteen inches on the side of each rail, nevertheless it would so disturb the belt of intermediate pavement as to require it to be relaid. The trial judge, therefore, correctly ruled that the covenant extended to the entire space between the tracks. It is insisted, however, that conceding this to be the true construction of the covenant, the court erred in directing a verdict for the sum expended by the city, and for the value of the new materials used, as proved by ‘the account kept by the city. The objection is two-fold : First, that the rule of damages for a breach of a covenant to repair, where the covenantor has neglected to perform his covenant, and the repairs have been made by the covenantee, is the reasonable cost of the repairs, and not the sum expended by the covenantee in making them, and that the question of reasonable expense should, under the evidence, have been submitted to the jury; and, second, that improper evidence was admitted to prove the amount of labor and materials used in the work. In reference to the first objection, it was shown on the part of the city, without contradiction, that the street was out of repair, and that the'defendant having neglected, after due notice, to put it in repair as required by its covenant, the city proceeded to make the repairs at a cost for labor and materials of $1,971.72. It employed laborers at the usual wages paid by the city and purchased materials for the work in the usual way. It does not afiSrmatively appear that the labor and materials employed did not exceed the necessary amount. But the work appears to have been done in the usual manner and by the agencies usually employed by the city in the prosecution of street repairs. We think the learned counsel for the defendant is correct in the proposition that the measure of damages for the breach of the defendant’s covenant was the reasonable cost of the work. The city could not proceed in a reckless or extravagant manner and charge the defendant for expenses unnecessarily or unreasonably incurred. (State v. Ingram, 5 Ired. [N. C.] 441; Rutland v. Dayton, 60 Ill. 58.) But where a covenantee has made repairs which -the covenantor was bound, but has neglected to make, and has proceeded in the usual way and no fraud is shown, nor any facts to impeach the reasonableness of the account, the sum actually expended in the work, is, we think, prima facie the sum which he is entitled to recover. In the absence of proof neither fraud, recklessness nor extravagance will be presumed, and this measure of recovery presumptively gives the covenantor actual indemnity only. But it is insisted that the facts proved on the part of the defendant tended to show that the cost of the repairs exceeded a reasonable sum, and that the question, therefore, should have been submitted to the jury. We think there was no question for the jury upon this point. The defendant proved by its track-master that the cost to the company of paving with cobble stone was, in respect to the item of labor, much less per square yard than the sum paid by the city for laying the pavement in question. But the pavement laid was Belgian pavement, and it was proved on the part of the city, and the proof was uncontradicted, that the laying of Belgian pavement involved much more labor and expense than paving with cobble stones. There was no evidence showing that the charge for labor in the account of the city was excessive, or that more laborers or materials were provided than were, reasonably required. We are of opinion, therefore, that the direction of the verdict for the sum actually expended by the city, in making the repairs, was not error.

A more serious question is raised -by exceptions to the admission in evidence óf a time-book kept, by one John B. Wilt, and of a written memorandum or account made by him, offered to prove the number of days’ work performed and the quantity of material used. Wilt was a foreman, in the employ of the department of public works, and had general charge of the repairs in question. Under him were two gang foremen, - or head payers, Patrick Madden and Charles Goughian, each having charge of a separate gang of about ten men employed on the work. . Wilt kept a time-book, in which was entered the name of each man employed. He visited the work twice a day, in the morning and afternoon, remaining from a few minutes to half an hour each time, and he testified that while there he checked on the time-book, the time of each man, as reported to him by the gang foremen. He also testified that he marked the men’s names as he saw them, and that he knew their faces. The gang foremen did not see the entries made by Wilt, but they testified that they correctly reported to him each day the names of the men who worked, and if any did not work full time, they reported that fact also. Upon this proof, the trial judge admitted the time-book in evidence, against the objection of the defendant. The trial judge also admitted in evidence, under like objection, a written memorandum or account, in the handwriting ■ of Wilt, of materials used. Wilt testified that the entries dn the account were made from daily information furnished by the gang foremen, on the occasions of his visiting the work, and that he correctly entered the amounts as reported. It does not appear that he had any personal knowledge of the matters to which the entries related. The gang foremen were called as witnesses in support, of the account. Neither of them saw the entries, and on the trial neither claimed to have any present recollection of the specific quantities so reported by them. Madden testified that h.e reported the correct amounts to Wilt, and it is inferable from his evidence that when the reports were made, he had personal knowledge of the facts reported. Goughian also testified in general terms that he reported the items correctly. But on further examination it appeared that his reports to Wilt of the stone delivered at the work, were made upon information derived by him from the car-men who drew the stone, and who counted them, and who reported the count to Goughian, who in turn reported to Wilt. Goughian saw the carmen dump the stone, but he did not verify the count, but appears to have assumed its correctness. The carmen who delivered the stone were not called as witnesses.

The exception to the admission of the time-book presents a question of considerable practical importance. The ultimate fact sought to be proved on this branch of the case, was the number of days’ labor performed in making the repairs. The time-book was not admissible as a memorandum of facts known to Wilt and verified by him. His observation of the men at work was casual, and it cannot be inferred that he had personal knowledge of the amount of labor performed. His knowledge, from personal observation, was manifestly incomplete, and the time-book was made up, mainly, at least, from the reports of the gang foremen. The time-book was clearly not admissible upon the testimony either of the gang foremen, or of Wilt, separately considered. The gang foremen knew the facts they reported to Wilt, to be true, but they did not see the entries made, and could not verify their correctness. Wilt did not make the entries upon his own knowledge of the facts, but from the reports of the gang foremen. Standing upon his testimony alone, the entries were mere hearsay. But combining the testimony of Wilt and the gang foremen, there Avas, first, original evidence that laborers were employed, and that their time was correctly reported by persons who had personal knowledge of the facts, and that their reports were made in the ordinary course of business, and in accordance with the duty of the persons making them, and in point of time were contemporaneous with the transactions, to which the reports related, and second, evidence by the person who received the reports, that he correctly entered them as reported, in the time-book, in the usual course of his business and duty. It is objected that this evidence taken together, is incompetent to prove the ultimate fact, and amounts to nothing more than hearsay. If the witnesses are believed, there can be but little moral doubt that the book is a true record of the actual fact. There could be no doubt whatever, except one arising from infirmity of memory, or mistake, or fraud. The gang foremen may by mistake or fraud, have misreported to Wilt, and Wilt may either intentionally or unintentionally have made entries not in accordance with the reports of the gang foremen. But the possibility of mistake or fraud on the part of witnesses, exists in all cases and in respect to any kind of oral evidence. The question arises, must a material, ultimate fact be proved by the evidence of a witness who knew the fact and can recall it, or who, having on personal recollection of the fact at the time of his examination as a witness, testifies that he made, or saw made an entry of the fact at the time, or recently thereafter, which on being produced, he can verify as the entry he made or saw, and that he knew the entry to be true when made, or may such ultimate fact be proved by showing by a witness that he knew the facts in relation to the matter which is the subject of investigation, and communicated them to another at the time, but had forgotten them, and supplementing this testimony by that of the person receiving the communication to the effect that he entered at the time, the facts communicated and by the production of the. book or memorandum in which the entries were made. The admissibility of memoranda of the first class is well settled. They are admitted in connection with, and as auxiliary to the oral evidence of the witness, and this whether the witness, on seeing the entries, recalls the' facts, or can only verify the entries as a true record made or seen by him at, or soon after * the transaction to which it relates. (Halsey v. Sinsebaugh, 15 N. Y. 485 ; Guy v. Mead, 22 id. 462.)

The other branch of the inquiry has not been very distinctly adjudicated in this State, although the admissibility of entries made under "circumstances like those in this case was apparently approved in Payne v. Hodge (71 N. Y. 598). We are of opinion that the rule as to the admissibility of memoranda may properly be extended so as to embrace the case before us. The case is of an account kept in the ordinary course of business, of laborers employed in the prosecution of work, based upon daily reports of foremen who had charge of the men, and who, in accordance with their duty, reported the time to another subordinate of the same common master, but of a higher grade, who, in time, also in accordance with his duty, entered the time as reported. "We think entries so made, with the evidence of the foremen that they made true reports, and of the person who made the entries that he correctly entered them, are admissible. It is substantially by this method of accounts, that business transactions in numerous cases are authenticated, and business could not be carried on and accounts kept in many cases, without great inconvenience, unless this method of keeping and proving accounts is sanctioned. In a business where many laborers are employed, the accounts must, in most cases, of necessity, be kept by a person not personally cognizant of the facts, and from reports made by others. The person in charge of the laborers knows the fact, but he may not have the skill, or, for other reasons, it may be inconvenient that he should keep the account. It may be assumed that a system of accounts basedhpon substantially the same methods as the accounts in this case, is in accordance with the usages of business. In admitting an account verified, as was the account here, there is little danger of mistake, and the admission of such an account as legal evidence is often necessary to prevent a failure of justice. We are of opinion, however, that it is a proper qualification of the rule admitting such evidence, that the account must have been made in the ordinary course of business, and that it should not be extended so as to admit a mere private memorandum, not made in pursuance of any duty owing by the person making it, or when made upon information derived from another who made the communication casually and voluntarily, and not under the sanction of‘duty or other obligation. The case before ns is within the qualification suggested. In Peck v. Valentine (94 N. Y. 569), the memorandum there admitted was not an original memorandum, but a copy of a private memorandum made by an employe of the plaintiff for his own purposes, and not in the course of his duty, or in the ordinary course of business. The original memorandum, was delivered by the one who made it, to the plaintiff, who lost it, but testified that the paper produced and received in evidence was a copy. The person who m'ade the original memorandum was unable to verify the copy. The court held that the copy was improperly admitted in evidence. The decision in Peek v. Valentine rests upon quite different facts from those in this case.

In respect to the admission of the account of material, we think that part of the account based upon the reports of Madden was admissible on the same grounds upon which we have justified the admission of the time-book. Madden, in substance, testified that he knew the facts and properly reported them, and Wilt testified that he entered them as reported. The part of the account of materials, the items of which were furnished by Goughian, was not strictly admissible. Goughian does not appear to have had personal knowledge of the quantity of stone delivered on his part of the work, but took the count of the carman, and his reports to Wilt were based upon the reports of the carman to him. The carman was not called, and the evidence of.Wilt and Goughian was mere hearsay. If the attention of the court had been called by the defendant to this part of the account, and objection had been specifically taken to the items entered upon the reports of Goughian, the objection would, we think, have been valid. But the objection was a general objection to the whole account. It was clearly admissible as to the items reported by Madden, and, we think, the general objection and exception is not available to raise the question as to the admissibility of the items entered on thé report of Goughian, independently of the others. The whole amount of materials embraced in the recovery was small, and, we think, no -injustice will be done by affirming the judgment.

The judgment should, therefore, be affirmed.

All concur.

Judgment affirmed.


source: Caselaw Access Project

author: Earl, J.

license: Public Domain

text:
    The People, ex rel. Robert Kopp, Appellant, v. Stephen B. French et al., Commissioners of Police of the city of New York, Respondents.
    The “offense of intoxication” created by the Excise Law (§ 17, chap. 628, Laws of 1857, as amended by chap. 856, Laws of 1869), is a crime within the meaning of the New York Consolidation Act (§ 268, chap. 410, Laws of 1882), which prohibits any person who has “ been convicted of any crime ” from being appointed to membership on the police force or from holding membership therein.
    An investigation by the board of police commissioners to determine whether a member of the force has been convicted of a crime is not within the provision of said Consolidation Act (§ 250, chap. 410, Laws of 1882, as amended by chap. 180, Laws of 1884), which prohibits the removal of a member ‘ ‘ until written charges shall have been made or preferred against him. When it comes to the knowledge of said commissioners that a member has been convicted of a crime and so is ineligible, they have the right summarily to vacate his appointment, discharge him from the force and refuse longer to recognize him as a member.

      It seems that if the commissioners should wrongfully dismiss a member of the force because of an alleged conviction of a crime, he would have his remedy, by mandamus, for restoration.
    The relator was removed from the police force because of a conviction prior to his appointment for intoxication; no written charges were preferred, but he appeared before the board in compliance with its request, with his counsel, who stated that they admitted the relator had been arrested and fined in a police court, but denied that there had ever been a conviction for a crime, and without objection because of the absence of written charges the relator proceeded to trial upon the merits. Held, that conceding the provision of said Consolidation Act as to written charges was applicable to the case, it might be and was waived by the relator.
    (Argued June 2, 1886 ;
    decided June 22, 1886.)
    Appeal from order of the General Term of. the Supreme Court, in the first judicial department, entered March 9,1886, which affirmed upon certiorari the proceedings of the board of police commissioners of the city of Flew York, removing the relator from the position of policeman. (Eeported below, 39 FT. Y. 507.)
    The facts appear sufficiently in the opinion.

      John E. Burke for appellant.
    The board of police had no jurisdiction to try or remove the relator for the reason that no written charges were preferred against him. (Laws of 1882, chap. 410, § 250, as amended by Laws of 1884, chap. 180; People, ex rel. Miller, v. Police Com'rs, 67 N. Y. 475.)

      David J. Dean for respondent.
    The relator is disqualified by statute to be appointed to membership in the police force, or to continue to hold membership therein. (Laws of 1882, chap. 410, § 268.) Intoxication.in a public place is a crime, and a conviction thereof is a conviction of a crime. (Laws of 1869, chap. 856, § 17; E. S. [7th ed., Banks] 1982 ; E. S. [7th ed.] 2539, § 32; Laws of 1881, chap. 676, § 3.) The appointment of the relator to membership in the police force was forbidden by the statute, and consequently he never acquired legal title to the office of patrolman. (Laws of 1882, chap. 410, § 272.) The right to a preliminary injunction rests in the discretion of the court, and, therefore, an appeal will not lie from an order granting or refusing an injunction pendente lite. (Paul v. Munger, 47 N. Y. 469 ; People v. Schoonmaker, 50 id. 499 ; Pfohl v. Sampson, 59 id. 174; Calkin v. Man. Oil Co., 65 id. 557.) The general rule thus defined has been qualified only to the extent of holding that where it clearly appears that the complaint shows no cause of action, a preliminary injunction is unauthorized, and the granting of it is an error which may be reviewed in this court on appeal. (Selschow v. Baker, 93 N. Y. 62; McHenry v. Jewett, 90 id. 58.) The case at bar is not within the exception, because it is an -appeal from a denial of the motion for an injunction. (Rae v. Mayor, etc., 62 N. Y. 631; Young v. Campbell, 75 id. 525.)
   Earl, J.

Section 268 of the New York Consolidation Act (Chap. 410 of the Laws of 1882) provides that no person shall ever be appointed to membership in the police force or permitted to hold membership therein, or be appointed a patrolman “ who shall have been convicted of any crime.” Eobert Kopp, the relator, was, on 12th of April, 1880, arrested for public intoxication in the city of New York and taken before a police justice and there charged with such intoxication, and convicted thereof, and fined $5, which fine he paid. There- • after, in July, 1883, he applied to the board of police commissioners to be appointed a patrolman of the police force in the city of Hew York, and, in answer to questions put to him, stated that he had never been arrested for or convicted of any crime; and he was thereupon appointed patrolman. Subsequently, in October, 1885, it having come to the knowledge of the police commissioners that he had been convicted of the alleged crime, they passed the following resolution : Resolved, That Patrolman Robert Kopp, 22d prpcinct, be directed to appear before this board on the 30th inst. at 12 m., and that the attendance of Knox McAfee, clerk 2d district police court be requested.” In pursuance of that resolution Kopp was requested to appear before the board on the thirtieth of October, and he appeared there with his counsel, and his counsel, at the opening of the proceedings, stated as follows: “ If your honors please, I appear for the defendant, and we have to say this, that although we admit here that the officer has been arrested and fined in a police court, we now contend that there has never been a conviction of any crime.” It thus appears that the relator was informed of the charge against him and understood perfectly the purpose for which he had been summoned to appear. It was clearly shown by.the examination of the relator and other evidence that he was arrested and duly convicted of being intoxicated in a public place, and that he was fined $5 and paid the fine. Thereupon the board resolved that the name of Robert Kopp be stricken from the roll. of the police department and force, and that the superintendent be directed to issue the necessary order for the return of his shield and manual, and to not allow him to perform any further duty as patrolman.” It is now claimed that the action of the board was illegal for three reasons.

First. It is said that they had no jurisdiction to try the relator and discharge him from the police force without written charges; as required by section 250 of chapter 410 of the Laws of 1882,' as amended by chapter 180 of the Laws of 1884, which provides that no member of the police force “ shall be fined, reprimanded, removed, suspended or dismissed from the police force until written charges shall have been made or pre-. ferred against him.” This is not, we think, such a case as is contemplated by that section. Kopp was not legally a member of the police force. He was ineligible; the police commissioners had no right under the statute to appoint him; and when it came to their knowledge that he had been convicted of a crime, and was, therefore, ineligible to the office, they had the right summarily to vacate his appointment, discharge him from the police force, and refuse longer to recognize him as a member thereof.

This was not a case in which the commissioners were authorized or required to try or discipline Kopp for any offense committed by him as a member of the force, but it was simply an investigation to ascertain whether he was legally a member of the force, and that was an investigation to be conducted by them in their own way. If they should thus wrongfully dismiss a police officer, he would have his remedy for restoration by mandamus.

But if our views were different, we would still reach the same conclusion. The provision in the section above quoted, requiring written charges to be' made against a police officer before he can be punished or discharged from the police force, is made for the benefit of the officer, and it may be waived by him. In this case the relator appeared by his counsel, understanding perfectly the charge which was to be investigated, and proceeded to trial upon the merits, in no way making objection that written charges had not been preferred against him. Under such circumstances we think he clearly waived the presentation of written charges, and that it is now too late for him to make this objection.

Second. It is claimed that Kopp was not convicted of any crime. The offense for which he was convicted is created by section 17 of the Excise Act of 1857, as amended by chapter 856 of the Laws of 1869, which declares it to be the duty of every officer, whenever he shall find a person intoxicated in any public place, to apprehend such person and take him before some police magistrate, whose duty it shall be to try him for such offense; and upon his conviction by the magistrate of such offense it is declared that such person shall be fined not less- than $3 nor more than $10, in the discretion of the magistrate trying him ; and provision is made for his imprisonment in case the fine is not paid. The section then proceeds, “the offense of intoxication being hereby declared to be an offense against the provisions of this act, and punishable as above provided, it shall be the duty of such officer to arrest or cause to be arrested all such persons found so intoxicated, and of the magistrate to entertain such complaint and to make such examination, under a penalty of $50, with full costs of suit for any neglect to comply with the provisions of this section.” The relator was, therefore, legally arrested for the “ offense of intoxication,” and the question for our determination is, was such an offense a crime ?. It certainly has all the elements of a crime. Public intoxication is-offensive to public decency, and dangerous to the good order and well-being of society. The officers charged with the arrest of other criminals are empowered to arrest persons guilty of this offense, and they are required to be tried as criminals and punished as criminals. Public intoxication is declared to be an offense, and, in the statutes, ordinarily the words “ offense ” and “ crime” are synonymous. Various violations of the Excise Act are made crimes punishable as misdemeanors, and yet in the act they are always called offenses. In the Revised Statutes it is declared that the words “ crime ” and “ offense,” when used in the statute, “ shall be construed to mean any offense for which any criminal punishment may by law be inflicted ” (3 R. S. [7th ed.], § 32, p. 2539); and in the Penal Code, § 33, a crime is defined as follows : An act of omission forbidden by law and punishable upon conviction,” among other ways, by “ a fine.”

So, taldng the manner in which this offense is required to be dealt with, and the language used in the statutes in reference thereto, we are of opinion .that public intoxication, under the-Excise Act of 1857, as subsequently amended, is a crime, and, therefore, that the defendant was convicted of a crime which made him ineligible to the office of patrolman in the police force.

Third. It is further claimed that there was no competent evidence before the board to show that the relator was lawfully convicted. The evidence was sufficient to show that the police magistrate had jurisdiction of the offense, and that, therefore, the conviction was legal.

The order should be affirmed.

All concur.

Order affirmed.


text:
    The People, ex rel. William R. Gilbert, Respondent, v. Henry B. Laidlaw, County Treasurer, etc., Appellant.
    Where, in lieu of bail in a criminal action, money is deposited as authorized by the Code of Criminal Procedure (§ 586), it is for the purposes of the action to be considered as the money of the defendant, and although it was in fact furnished by a third person it may be applied in payment of any fine imposed upon the defendant.
    An appeal to this court from an order of General Term reversing a judgment of Special Term and granting a new trial after trial of issues of fact in mandamus proceedings, is not an appeal from an order included in the provision of the Code of Criminal Procedure (§ 192) authorizing appeals from certain orders to be put on the motion calendar and heard as motions ; it should be placed upon the general calendar.
    (Submitted June 15, 1886 ;
    decided June 25, 1886.)
    Appeal from order of the General Term of the Supreme Court, in the first judicial department, made January 29,1886, which reversed a judgment entered upon a decision of the court on trial at Special Term.
    The nature of the proceeding and the material facts are stated in the opinion.

      David J. Dean for appellant.
    Assuming that the $300 belonged to Gilbert, by depositing it in lieu of bail, he made it subject to all the contingencies which the statute provides shall attend moneys so deposited, and is chargeable with knowledge of the statute under which he made the deposit and by virtue of which alone such a deposit could be made. (Code of Crim. Pro., § 586.) The judgment imposed upon Hye was not irregular, and even if it were, the relator could not take advantage of its irregularity in this collateral proceeding. (Code of Crim. Pro., § 718.)

      George Norris and Walter N. Beach for respondent.
    The purpose and object of bail, whether it be the prisoner’s own recognizance or a bail bond executed by another, is only to insure the appearance of the prisoner at the trial; he “ shall at all times render himself amenable to the orders and process of the court; and, if convicted, shall appear for judgment and render himself .in execution thereof.” ' (Code of Crim. Pro., § 568.) Had the relator executed an undertaking of bail the same could have been forfeited and the relator held for the amount thereof, only in case the prisoner had failed to “ appear and answer the charge,” or had failed “ to render himself amenable to the orders and process of the court,” or had failed, if convicted, to “ appear for judgment ” or to “ render himself in execution thereof.” (Code of Crim. Pro., § 568.) The money deposited by relator “ as security for the prisoner’s appearance, and instead of said undertaking of bail,” would be forfeited under the same circumstances and not otherwise. (Code of Crim. Pro., § 593.) A thing within the letter of the statute is not within the statute unless it be within the intention of the makers. (People v. Utica Ins. Co., 15 Johns. 358, 381 ; People, ex rel. v. Com'rs of Taxes, 95 N. Y. 554.)
   Earl, J.

Charles Hye, having been arrested in the city of Hew York on the charge of assault, was held to bail by a police justice in the sum of $300 for his appearance for trial at the Court of Special Sessions. The relator, Gilbert, was offered as bail, but for some reason was not accepted, and he then deposited with the county treasurer $300, the amount of bail required, and took from him the following certificate signed by him: “ Whereas, heretofore, and on the 30th day of December, 1884, an order was made by Justice Smith, first district police, admitting the above-named defendant to bail on giving an undertaking, in the sum of $300, on a certain charge of assault. This is to certify that William B. Gilbert, for the defendant above named, has deposited with me the amount of $300, the sum mentioned in said order as security for his appearance pursuant to such order, instead of the said undertaking of bail, pursuant to section 586 of the Code of Criminal Procedure.” A few days thereafter Eye appeared at the Court of Special Sessions for trial and was convicted and sentenced to pay a fine of $250. The fine was ordered to be paid from the money deposited with the county treasurer,' and the surplus of the deposit was ordered to be refunded to the defendant, and the fine was so satisfied. Thereafter Gilbert applied for a writ of alternative mandamus, addressed to the county treasurer, commanding him to return to him the $300, or to show cause. The defendant filed a return to the writ, and the issue thus formed came on for trial, and it was shown, among other things, that the money deposited with the county treasurer was in fact Gilbert’s money and was not by him actually loaned to the defendant. But the trial judge decided that the relator was not entitled to the writ of mandamus and rendered judgment against him for costs. From that judgment he appealed to the General Term, and there the judgment was reversed and a new trial granted; and then, by leave of the court first obtained, the defendant appealed to this court and embodied in his notice of appeal an assent, that in case the order should be affirmed, judgment absolute should be rendered against him.

It is to be observed that this appeal was not properly upon the motion calendar. It is not an appeal from such an order as is mentioned in section 192 of the Code. The appeal to the General Term was from a judgment after trial of the issues joined, and the appeal to this court is from an order reversing that judgment and granting a new trial.' Such appeals are required to be placed upon the general calendar. If this were to be treated as a special proceeding, then there conld be no appeal to this court as the order is not a final one. But as the case has been submitted and is now before us, we will dispose of it upon its merits. This must not, however, be a precedent for the repetition of such practice.

Section 568 of the Code of Criminal Procedure prescribes the form of the undertaking of bail when bail is authorized to be taken in criminal cases by a magistrate, and subsequent sections specify the qualifications of bail and provide how they are to justify. Section 586 is as follows : The defendant at any time after an order admitting him to bail, instead of giving bail, may deposit with the county treasurer of the county in which he is held to answer, the sum mentioned in the order; and upon delivering to the officer in whose custody he is a certificate of the deposit, he must be discharged from custody.” This section authorizes the deposit to be made by the defendant and by no one else, and considering this section and other sections, we think it was the plain purpose of the statutes to require that the money thus deposited should, for the purposes of the deposit, in fact be the money of the defendant. Section 587 provides, that if the defendant has given bail lie may, at any time before the forfeiture of the undertaking, in like manner deposit the sum mentioned in the undertaking. Section 588 provides, “ if money be deposited as provided in the last section, bail may be given in the same manner as if it had been originally given upon the order fqr admission to bail, at any time before the forfeiture of the deposit. The court or magistrate before whom the bail is taken must thereupon direct, in the order of allowance, that the money deposited be refunded by the county treasurer to the defendant; and it must be refunded accordingly.” Section 592 provides, “that if money has been deposited instead of bail, and the defendant at any time before the forfeiture thereof surrender himself to the officer to whom the commitment was directed, in the manner provided in section 590, the court must order a return of the deposit to the defendant, upon producing the certificate of the officer showing the surrender, and upon a notice of five days to the district attorney, with a copy of the certificate.” Then section 589 provides, “ that when money has been deposited, if it remain on deposit and unforfeited at the time of a judgment for the payment of a fine, the county treasurer must, under direction of the court, apply the money in satisfaction thereof ; and after satisfying the fine, must refund the surplus, if any, to the defendant.’ ’ All these sections treat the money deposited as belonging to the defendant, and in all cases where money is deposited in lieu of bail it may be applied in payment of any fine imposed, and the surplus, if any, after the fine has been satisfied, must be returned to the defendant. The relator when he deposited this money must be assumed to have known the provisions of these statutes, and the deposit must have been made in compliance with them. There is no authority for the county treasurer to take a deposit in lieu of bail except by virtue of these statutes, and the deposit must be made in strict compliance with the statutes. The statutes may have' been framed as they are for the very purpose of avoiding a dispute like that which has arisen in this case. If the contention of the relator be upheld, then disputes may frequently arise as to whose money was deposited, and the county treasurer can never know with certainty to whom the money is to be returned, and the court cannot know in passing sentence, or in making its order, whether the money is properly applicable upon the fine im-' posed. It is, therefore, wiser that the provisions of the statute should have their obvious meaning, to-wit: The money is deposited as the money of the defendant, and if a fine is inflicted upon him it may be used to pay the fine, and the surplus is to be returned to him. When any party other than the defendant makes the deposit for him, it is a deposit in compliance with the statute, and the money is thus devoted to the purposes of the statute, and to the use of the defendant. The certificate which was issued to the plaintiff in this case certifies that the money was deposited for the defendant. It must, therefore, be treated as if it were furnished to the defendant and the deposit had been made by him. So far as the relator is deprived of his money, it is by his voluntary act and implied assent.

We see no fatal informality in the proceedings of the police magistrate, and we are, therefore, of opinion that the order of the General Term should be reversed, and the judgment of the Special Term affirmed, with costs.

All concur.

Order reversed and judgment affirmed.


author: Finch, J.

text:
    The Mayor, Aldermen and Commonalty of the City of New York, Respondents, v. The Eden Musée American Company (Limited), Impleaded, etc., Appellant.
    The provision of the New York City Consolidation Act (§ 1998, chap. 410, Laws of 1882, as amended by § 8, chap. 249, Laws of 1885), which provides for the licensing and regulation of places of amusement, includes all classes of public exhibitions such as are usually conducted upon a stage, for the observation and amusement of the public.
    A place of public amusement where concerts are given upon a stage is within its terms and requires a license.
    (Submitted June 15, 1886 ;
    decided June 25, 1886.)
    Appeal from order of the General Term of the Supreme Court, in the first judicial department, made May 21, 1886, which affirmed an order of Special Term restraining the defendant 'pendente lite from keeping open the place of entertainment in the-city of Hew York known as the “ Eden Musée,” and from giving musical entertainments such as had been given therein, until a license shall be obtained therefor as provided by the Consolidation Act.
    The nature of the entertainments given are stated in the opinion.

      George W. Seligman for appellant.
    The musical performances in question did not constitute “ entertainments of the stage.” There is no stage, no scenery, no actors, no acting, in fact, nothing of the character of dramatic or theatrical representation. Hor can they be brought under the head of “ interludes.” (Soc. for the Reformation of Juvenile Delinquents v. Diers, 10 Abb. Pr. [N. S.] 221; Geary’s Law of Theaters and Music Halls, 2, 3.) Musical performances and concerts are not included in a rational construction of the phrase “ exhibit!(ms of minstrelsy.” (Consolidation Act, §§ 1998, 1999, 2000, 2003, 2005, 2010; Potter’s Dwarris on Statutes, 193 ; Clark v. City of Utica, 8 Barb. 453 ; Waller v. Harris, 20 Wend. 561-2 ; In re Will of O'Neil, 91 N. Y. 520 ; Maillard v. Lawrence, 16 How. [U. S.] 261; U. S. v. Clayton, 2 Dill. 225 ; Engelkin v. Van Waind, 26 Tex. 471; People’s Cyclopaedia, N. Y., 1879.) Statutes in derogation of common-law rights should be construed with strictness in favor of the persons against whom they are sought to be applied. (Rowland v. Kleeber, 1 Pittsb. 68; Burnside v. Whitney, 21 N. Y. 148; Shaw v. Ruddin, 9 I. R C. L. 214; Sewell v. Jones, 9 Pick. 412, 414; Green v. Holway, 101 Mass. 243, 248; Queen v. Barclay, 8 L. R., Q. B. Div. 306, 312; Oriental Bk. Corp. v. Wright, 5 L. R. App. Cas. 842, 856 ; Sedg. on Const. [2d ed.j 224.) The sections of the “ Consolidation Act ” under discussion are highly penal, and should, on that account alone, if on no other, receive a restricted construction. (Potter’s Dwarris on Statutes, 245, 247; Bell v. Dole, 11 Johns. 173 ; Strong v. Stebbins, 5 Cow. 212; Myers v. Foster, 6 id. 569 ; Hasbrook v. Paddock, 1 Barb. 642 ; Bridgewater, etc., Co. v. Robbins, 22 id. 667; Hall v. Sigel, 13 Abb. Pr. [N. S.] 178, 187; affirmed, 53 N. Y. 607; Carpenter v. People, 8 Barb. 605; Mayor, etc., v. Walker, 4 E. D. S. 258; King v. Handy, 6 T. R. 286; U. S. V. Watts, 1 Band. 580.)

      David J. Dean for respondent.
    The language used in section 1999 of the Hew York City Consolidation Act (Laws of 1882, chap. 410) includes every thing which ordinarily goes to make up a concert, and it is a reasonable construction of the statute to say that it was intended to include all entertainments or exhibitions the purpose and effect of which is to attract the public. (Laws of 1860, chap. 475, p. 999; Society, etc., v. Diers, 60 Barb. 152; Jacob’s Law Diet. 287; Webster’s Diet., 1875; 'Worcester’s Diet., 1874; Stornraouth’s Diet., 1885 ; Worcester’s Diet., 1885.)
   Finch, J.

The Consolidation Act of 1882, as amended in 1885, under the head of Amusements,” contains provisions for their license and regulation. Section 1998 enacts that it shall not be lawful to exhibit to the public, in any building, garden or grounds, concert-room or other place or room within the city, any interlude, tragedy, comedy, opera, ballet, play, farce, minstrelsy or dancing, or any other entertainment of the stage, or any part or parts therein, or any equestrian, circus or dramatic performance, or any performance of jugglers or rope dancing or acrobats, until a license for the place of such exhibition for such purpose shall have been first had and obtained.” The Eden Musée has been in the habit of giving public concerts, which its counsel describe as “ consisting of orchestral selections of a high character in a room or alcove which opens at an elevation into a larger room or hall and is on a level with a high gallery encircling said hall.” This carefully drawn circumlocution avoids saying that the entertainment is upon a stage,” but the difference is rather in the language than the fact. The proof shows that the place is one of public amusement to which visitors are attracted by the entertainment offered, to which an admission is charged and which anybody may attend upon payment of the price. It is a private enterprise, planned and accomplished for personal gain and profit, like other places of public amusement seeking the public patronage. Without doubt it belongs to the general class of cases' contemplated by the statute as needing more or less of governmental supervision and regulation, and so required to pay a license fee.

It is claimed, however, that it is. neither an “ entertainment of the stage,” nor an exhibition of minstrelsy,” and thus not within the language of the statute, but is merely a concert, not named or included within the section referred to. The appellant’s counsel traces to their origin what were known as minstrels, insisting that they were “ strolling singers and musicians ” wandering about the country, and “ not to be confounded with the musical artist or with the performer in an orchestra having a fixed abode or domicile.” Even if the test of difference between “ minstrel ” and musician ” was that one strolled and the other stayed at home, that one was a-vagabond and the other a citizen, it is certain that the word minstrelsy ” has acquired a much wider meaning and is used in the statute in that broader sense. The act of 1862 was confined to negro minstrelsy,” a phrase which designated a known and specific kind of musical entertainment, and so made that and the opera the subjects of license regulations to the exclusion of what may be called concerts. But by the act of 1872 the word negro ” was dropped and the word “ minstrelsy ” purposely left to its broad and general meaning, without any qualifying or restrictive expression. It was as if the legislature had declared that instead of limiting the regulation to one sort or kind of “ minstrelsy,” it should thereafter apply to all sorts and kinds without limitation. So broad was the act that in 1875 the legislature deemed it necessary to specially except from its operation private theatricals and church and Sunday-school exhibitions and the like. The phrase any other entertainment of the stage” is also very broad and comprehensive. Theatrical and operatic performances, minstrelsy and dancing, had already been specifically named, and “ any other entertainment of the stage ” implied that there were others to be included. Was it meant that a boxing match on the stage of a place of public amusement did not need regulation and license, while an opera or a tragedy did % Taking the statute in all its terms it evidently meant to include all classes of'public exhibitions such as are usually conducted upon a stage for the observation and amusement of the public, and we see no good reason for narrowing or restricting its obvious scope and purpose.

The order should be affirmed, with costs.

All concur.

Order affirmed.


author: Rapadlo, J.

text:
    Alonzo G. Paddock, Respondent, v. Peter Z. Kirkham, as Executor, Appellant.
    The provision of the Revised Statutes (3 R. S. 89, § 87) in regard to the reference of a disputed claim against the estate of a deceased person, which declares that “ the same proceedings shall be had in all respects * * as }f the reference had been made in an action,” authorizes the issuing of a. commission to take testimony out of the State.

      Wood v. Howard Ins. Co. (18 Wend. 646), In re Whitney (4 Hill, 583), distinguished.
    (Argued June 1, 1886;
    decided June 25, 1886.)
    Appeal from, order of the General Term of the Supreme Court, in the second judicial department, made December 15, 1885, which affirmed an order of Special Term, directing the issuing of a commission to take the testimony of witnesses out of the State.
    This was a reference under the statute of a disputed claim against the estate of Jacob Cole, deceased.

      Abram J. Miller for appellant.
    An action is an ordinary proceeding in a court of justice; every other remedy or prosecution is a special proceeding. (Code of Proc., §§ 2, 3; Code of Civ. Pro., §§ 3333, 3334.) This is not an action but a special proceeding under a special statute. Proceedings on the reference of a claim against an estate do not constitute an action. (Robert v. Ditmas, 7 Wend. 525; Linn v. Clow, 14 How. Pr. 508; Boyd v. Bigelow, id. 511; Radley v. Fisher, 24 id. 405 ; Coe v. Coe, 37 Barb. 233-235 ; Somerville v. Crook, 9 Hun, 666; Young v. Cuddy, 23 id. 250; Roe v. Boyle, 81 N. Y. 306-308; Mowry v. Peet, 88 id. 456.) This being strictly a statutory proceeding, no power is conferred and no proceeding can be • had therein except it is expressly conferred by statute. (Roe v. Boyle, 81 N. Y. , 306-308 ; Mowry v. Peet, 88 id. 453 ; Matter of Attorney, 83 id. 164.) A commission is not a common-law right. (Matter of Whitney, 4 Hill, 533 ; Brown v. Southworth, 9 Paige’s Ch. 552; McCotter v. Hooker, 8 N. Y. 504; Matter of Attorney, 83 id. 164.) Since the enactment of the Code of Civil Procedure there is no power to issue a commission in proceedings supplementary to execution, even though one of the subdivisions of section 888 would seem to imply that it should issue, and for the reason that it is not an action but a special proceeding. (Champlin v. Stodart, 64 How. Pr. 379.) A commission can issue in actions only. ( Wood v. Howard Ins. Co., 18 Wend. 646; Matter of Whitney, 4 Hill, 533 ; Graham v. Colburn, 14 How. Pr. 52; Champlin v. Stodart, 64 id. 378; McColl v. Ins. Co., 50 N. Y. 332 ; Matter of Attorney, 83 id. 164.) The provision of the statute, “ that the same proceedings shall be had in all respects; the referees shall have the same powers * * * and be subject to the same control as if the reference had been made in ah action in wliieh such court might by law direct a reference,” relates to' proceedings after the report of the referee is made. (Comstock v. Olmstead, 6 How. Pr. 79.) It gives no right to a commission. The act is in derogation of the common law and should not be enlarged by indulging in a liberal- construction. (In re Denny, 2 Hill, 220 ; Wood v. Howard Ins. Co., 18 Wend. 646.) Where claims against insolvent debtors are referred to referees, under a rule of the court, with the same powers, etc., as referees appointed- by the Supreme Court, a commission is not authorized. (In re Whitney, 4 Hill, 533 ; Wood v. Howard Ins. Co., 18 Wend. 646.) The order granting a commission with stay is appealable. (Rathburn v. Ingersoll, 34 N. Y. Supr. 211.)

      Wm. P. Oantwell for respondent.
    This order is not appeal-able. It does not affect a substantial right within the meaning of section 190 of the Code of Civil Procedure. It is merely an intermediate order relating to the procedure. ( Van Slyke v. Hyatt, 46 N. Y. 259, 262 ; Arthur v. Griswold, 60 id. 143 ; Whittelsey v. Poquet, 66 id. 358 ; Roe v. Boyle, 81 id. 305, 307.) This is an action within the meaning of the statute, clothing the court with authority to grant the commission. (Code, § 3333.) This, upon all the statutes in pari materia, is an action within the laws giving courts authority to grant a commission. (People, ex rel. O. & L. C. P. R. Co., v. Pond, 13 Abb. N. C. 1.)
   Rapadlo, J.

The power to issue a commission to take testi- • many out of the State depends entirely upon statutory provisions, and is regulated now by section 888 of the Code of Civil Procedure, which is in substance a re-enactment of a like provision of the Revised Statutes. Section 888 provides for the issuing of such a commission only where an issue of fact has been joined in an action pending in a court of record.”

The appellant contends that this reference was not an action but a special proceeding, citing Roe v. Boyle (81 N. Y. 305, 303) and Mowry v. Peet (88 id. 453), and that consequently the power to issue a commission in an action did not extend to it. Roe v. Boyle decided that such a reference being a special proceeding, an appeal from an order made therein was governed by the provisions of the Code expressly applicable to orders in special proceedings.

In Mowry v. Peet it was held that in such a proceeding there was no power in the referee or in the court to render an affirmative judgment against the claimant on a counter-claim, for the reason that on such a reference the only question submitted to the referee was whether the claimant had a just claim against the estate of the deceased, over and above all offsets, and, although in trying and adjudicating'upon those matters which were within the scope of the reference, the statute (2 R. S. 88, § 36) conferred upon the referee and the court the same powers as if the reference had been made in an action, yet the proceeding was not an action, and no power was given to render an affirmative judgment for the executors against the claimant or to certify a balance in their favor. As to the powers of the court and referees in such a proceeding, with respect to the determination of the matter in controversy, the terms of the statute are very broad.

Section 36 provides for the. entry of a rule in the Supreme Court or Court of Common Pleas referring the matter in controversy, and section 37 provides that “ the same proceedings-shall be had in all respects ; the referee shall have the- same powers * * * as if the reference had been made in an action in which such court might by law direct a reference,” and the judgment of the court on the report of the referees shall be valid and effectual in all respects as if the same had been rendered in a suit commenced by the ordinary process.

We think this provision is sufficiently broad to authorize the issue of a commission to take testimony out of the State. The necessity for such process is quite as great as in an action, and neither the executor nor the claimant should be deemed to have forfeited that advantage by consenting to such a reference. It is to a certain extent compulsory so far as costs are concerned. (§41.)

The cases of Wood v. Howard Ins. Co. (18 Wend. 646) and In re Whitney (4 Hill, 533) are cited as authorities for the proposition, that the provision that in cases of reference of disputed claims against executors, etc., the same proceedings shall be had in all respects, and the referees shall have the same powers as if the reference had been made in an action (2 R. S. 89, § 37),-is not sufficient to authorize the issuing of a commission. We do not think that the cases cited sustain the proposition. The references in those cases were governed by the statute in relation to the powers and duties of trustees and assignees of absconding and insolvent debtors. (2 R. S. 40.) That statute authorized "the reference of controversies relating to demands against, or debts due to, the debtor, and it provided (2 R. S. 45, § 24) that the referees so appointed should have the same powers as referees appointed by the Supreme Court in personal actions. That provision clearly did not affect the power of the court to issue a commission. It related solely to the powers of the referees.

The statute in respect to references of disputed claims against executors, etc., is much more comprehensive. It not only provides that in cases of such references the referees shall have the same powers, but it contains the further express provision that “ the same proceedings shall be had in all respects ” as if the reference had been made in an action. We think this includes the proceeding by commission to obtain the testimony of absent witnesses.

The order should be affirmed with costs.

All concur.

Order affirmed.