author: Daniels, J.:

text:
    Five Cases. THE PEOPLE ex rel. JOHN A. BAGLEY, Appellant, v. ANDREW H. GREEN, Comptroller, etc., Respondent. Two Cases. THE PEOPLE ex rel. JAMES S. HENNESSY, Appellant, v. ANDREW H. GREEN, Comptroller, etc., Respondent. THE PEOPLE ex rel. CHARLES G. CORNELL, Appellant, v. ANDREW H. GREEN, Comptroller, etc., Respondent. THE PEOPLE ex rel. WILLIAM WOOD, Appellant, v. ANDREW H. GREEN, Comptroller, etc., Respondent. THE PEOPLE ex rel. GRATZ NATHAN, Appellant, v. ANDREW H. GREEN, Comptroller, etc., Respondent.

      Mandamus.

    Where the Special Term refuses to grant a peremptory mandamus, on the specific ground that the relators can maintain actions at law for the recovery of their demands, this court is not, by that determination, restricted to that reason, if any other is shown by the papers, justifying the denial of this particular remedy.
    The remedy by mandamus is one of an exceptional character, appropriate only to that class of cases where a clear legal right may be made to appear, without any other adequate legal means to redress and maintain it.

      Where the fact, upon which the right may depend, is controverted, it must first be tried and determined, before a peremptory mandamus can be issued, and that determination is to be made not upon conflicting affidavits, but upon an issue framed upon the alternative writ, and must be tried by a jury according to the course of the common law.
    The affidavits of the relators, stated that they were informed and believed that a sufficient amount of money had been collectedoand paid over to the comptroller/ and was then in his hands or under his control, applicable to the payments required to be made. The respondent, in his return, denied that he had collected and had then in his hands, from the assessments made, an amount sufficient to pay the claims made by the respective relators, or to pay on their respective claims any sum whatever, and alleged that, at the time the order to show cause was made, and also at the time of the malting of his return, no money, collected from the assessments, was in his hands or under his control, but that claims then paid, that were payable out of the assessments, or for the payment of which the city was to be reimbursed out of the assessments, were at least equal to the whole amount collected. Held, that the existence of the funds, out of which the claims were to bo paid, was not sufficiently proved.
    By the provisions of the act, under which the various improvements involved in these applications were made, the commissioners were required to cause all such surveys, maps, profiles, plans and other things as they might judge necessary to be done, to be made and prepared for their use. Reid, that for the services so performed, the statute does not secure to the person or persons performing them, the right to resort to the city itself, or the fund to be created by the commissioners’ assessments, for compensation, nor have the commissioners power to invest the persons so employed by them, with such right.
    The sole and exclusive remedy of the person so employed, is the presentation of his claim by the commissioners, as a portion of their expenditures, and its satisfaction by their disbursement of the amount received for that purpose. Whether even that remedy has not been lost by the taxation of the commissioners! bill, without including these claims at the same time, qwere.

    Although demands against corporate officers or corporations themselves, may, under certain circumstances, be enforced by mandamus, where an action for damages may also be maintained in favor of the claimants, it cannot be done where an action can be maintained for the recovery of money claimed to be due and owing.
    The commissioners, appointed under the act of 1818, can, by virtue of the provisions of the said act, maintain an action against the city to recover for their services and expenses in opening, widening and extending the streets referred to in these applications, and their applications for writs of 'peremptory mandamus were, therefore, properly denied.
    In these cases, appeals have been taken by the respective relators from orders denying motions made by them for writs of peremptory mandamus to he directed to the respondent, as comptroller of the city of Hew York, requiring him to pay the relators certain sums of money claimed to be due to them respectively for services performed in proceedings ■ taken for -the making of certain public improvements in the city of New York.
    These proceedings were instituted and carried on for the purpose of laying out, locating and establishing a public park or place, known as Riverside Park, along the Hudson river, between Fifty ninth and One Hundred and Fifty-fifth streetsj the widening and straightening Broadway, between Thirty-fourth and Fifty-ninth streets; the opening of Sixty-eighth street from the Fifth avenue to the East river; and for the extension of Madison avenue from One Hundred and Twenty-fourth street to the Harlem river, in the city of New York.
    The claims of the relator, Johp A. Bagley, in the first five cases, are for the services rendered by him as engineer and surveyor, together with a-number of skilled subordinates, in making the necessary surveys, drawings and maps, to be used in the proceedings taken, and in making the improvements designed.
    And they amount in the aggregate to the sum of $199,949.18.
    The claims of the relators in the other five cases are for the costs, charges and expenses of the respective relators for services performed and expenditures made by them, as commissioners in the street proceedings for determining the value of property taken for such improvements, the assessments of the benefits produced thereby to other property, and the making of assessments to raise the funds required to defray the expenses of the same, amounting, in the aggregate, to the sum of $44,250.
    The amounts claimed by the relators were adjusted and allowed by the court, on the confirmation of the commissioners’ reports, as proper compensation for the services and expenditures claimed to have been made by them.
    But the writs applied for were denied for the reason that the relators’ remedy was by action at law for the recovery of the amounts claimed to be due. And from that decision the appeals were taken.

      T. O. T. Buckley, A. J. Vandeiyaoel, and Gratz JVatham, in person, for'the appellants.

      Dexter A. ffau?kins} for the respondent.
   Daniels, J.:

Although the Special Term, held at chambers, denied the motions made for the writs of peremptory mandamus on the specific ground mentioned in the orders, that the relators can maintain actions at law for the recovery of their demands, this court is not by that determination restricted to that reason, if any other is shown by the papers, justifying the denial of this particular remedy.

If any legal reason is disclosed by the papers used upon the motion and presented on the argument of these appeals, for withholding these writs, that will necessarily lead to an affirmance of the orders, whether it be the same as was assigned for the making of the orders or not. Before the writ of peremptory mandamus can be directed to issue, a proper case must be shown to warrant it.

If, for any reason, the facts relied upon in the application are insufficient to entitle the relator to that remedy, under the well-settled principle of law applicable to it, an order denying it will not only be proper, but, beyond that, it will be the only lawful disposition which can be made of the application.

The remedy by mandamus is one of an exceptional character, appropriate only to that class of cases where a clear legal right may be made to appear, without any other adequate legal means to redress and maintain it.

The ordinary mode of redressing grievances, supplied by the common law, is that of a legal action.

But where that remedy cannot be properly resorted to, and a clear legal right exists, requiring the performance of some specific act, then redress may be secured by mandamus; where the fact, upon which the right may depend, is controverted, it must first be tried and determined, before a peremptory mandamus can be issued.

And that determination is to be made not upon conflicting affidavits, but upon an issue framed upon the return to the alternative writ, to be tried by a jury according to the course of the common law.

In cases of the magnitude of those now presented, the peremptory writ should never be awarded ■ upon affidavits, unless it be plainly made to appear that the public interests are not to be prejudiced or jeopardized by the proceeding.

Ample time in all such cases is required for the full' and complete investigation of the grounds on which the claims are predicated, in order that the justice, as well as propriety of payment, may be fully established. The interests of the public can be in no other mode adequately protected.

And the duty to be performed for that purpose is one which manifestly requires more time than is ordinarily afforded by the summary mode in which these applications were made.

Its effective and complete discharge is more consonant to the deliberative proceedings of a legal action, than the disposition of a special motion brought to a hearing on two, four or even eight days’ notice.

The applications on which the orders appealed from were made, proceeded upon the theory that the claims presented were payable out of the fund pro videdfor the ultimate satisfaction of the expenses of the improvements and of the proceedings taken for making them.

And it was stated in the affidavits made in their support, that the respondent had in his hands the necessary means for their payment derived from that source.

In all the cases except the claim of the relator Nathan, for the extension of Madison avenue, the respondent denied the allegations made on that subject in support of the applications.

The denials were that he had not collected, and had not in his hands, from the assessments made, an amount sufficient to pay the claims made by the respective relators, or to pay on their respective claims any sum whatever.

And this denial was followed by the allegation that at the time when the order to show cause was made, and also at the time of the making of his answer, no money, collected from the assessments, was in his hands, or under his control, but that claims then paid, that were payable out of the assessments, or for the payment of which the city was to be reimbursed out of the assessments, were at least equal to the whole amount collected.

These statements are objected to, as evasive and ambiguous, by the counsel for the relators.

But even if they are liable to that criticism, they fall very far short of admitting the existence of the only fund out of which the relators have applied for the payment of their claims.

And as long as no admission of the existence of such funds has been made on the part of the respondent, there was no direct evidence that it did exist in any of the cases, unless those of Nathan, and the claim made for opening Sixty-eighth street, constitute exceptions to that conclusion.

For the affidavits, made by the relators in support of the applica tions in the other eight cases, simply stated that they were informed and believed that a sufficient amount of money had been collected and paid over to the comptroller, and was then in his hands, or under his control, applicable to the payments required to be made.

This unsworn information, derived from some undisclosed source, very clearly failed to prove the existence of the fact on which the right to payment was rendered, in great part, dependent by these relators.

And even if the respondent’s denial was indirect and inartistic, it did not supply a sufficient degree of probability to the information relied upon in support of the applications, to render it legal proof of the existence of the fact referred to.

The supplemental affidavits made by the relators did not relieve their cases of this defect, for they are made up entirely by way of information and belief, predicated upon statements and admissions, for which the respondent is not responsible, made by the deputy comptroller and the respondent’s counsel.

But even though the relator, Nathan, stated, in positive terms, in his affidavit made for the purpose of supporting his application, that the respondent had collected and received, and then had in his hands, in the proceedings taken, more than sufficient to pay his claim, the statement was afterwards shown by his supplemental affidavit to be entirely without foundation, for he then swore that the collections had amounted to the sum of $128,808.86, while the payments made for awards and expenses amounted to $591,880, which created a deficiency in the fund amounting to $363,071.14.

Instead of the comptroller’s having a fund in his hands out of which this claim could be paid, as the relator, in the first place, stated he had, this second affidavit clearly showed that there was no reason for even suspecting its existence. But the denial of the existence of the funds proceeded against, on the part of the comptroller, is not liable to the charges made concerning it on the part of the relators, for he distinctly and positively avers that he has not collected from the assessments, and has not in his hands, the amount required to pay the claim made, or any sum whatever, but, on the contrary, that the claims previously paid, which were payable out of the assessments, or for the payment of which the city was to be reimbursed out of the assessments, were, at least, equal to the whole amount collected.

This denial, followed by the statement and explanation afterward made, show that there was no such fund in the comptroller’s hands as the relators, by their proceedings, were endeavoring to enforce payment from. And there was nothing whatever in the proof, supplied by the relators, from which the court could say that either was untrue. But, even if there had been, it would not have entitled the relators to their writs, because it would only show that such a controversy existed as the law required to be determined by a trial before a jury.

The claim made by the relator, Bagley, arising out of the proceedings taken to open Sixty-eighth street, is no better sustained by him than those already considered. For his statements of the existence of the fund, from which his demand of payment was made, are confined entirely to the unreliable source of simple information and belief, wdiile the comptroller positively avers that preceding claims had been made against the fund, which were much more than sufficient to exhaust its amount.

Whether the relator could, in any view, establish his right to paramount payment over those other claims, was not made to appear, and as long as it was not, the court could not certainly determine that fact in his favor.

In neither case was it shown that the funds proceeded against, and solely-out of which the relators demanded payment, had any existence.

On the other hand, the fact of their existence was explicitly denied iii all the cases except that relating to the opening of Sixty-eighth street, where the fund was more than exhausted by preceding demands filed against it.

But the relators claimed that the comptroller had the power oí creating the funds, out of which they required him to make payment, by the sale of city improvement stock, or assessment fund bonds. If he could do that, it would not sustain their applications for payment out of existing funds ■when it appeared that there were no such funds. Whether he could lawfully create such funds or not, was not shown as a ground for issuing writs of mandamus, requiring him to pay these claims out of funds then alleged to be in his hands, but as a reason why his denial of funds should be held to be unavailing.

Besides that, the applications were not for writs requiring him to sell such stock and bonds, but they were solely for writs to require him to pay out of particular funds, when it was shown that there were no such funds on hand.

The cases.made by the relators were insufficiently sustained, as well as fully answered, and for both reasons their applications were properly denied.

It would have involved an inexcusable want of authority for the court to have directed payment of either of these claims under the circumstances shown, even if no other legal obstacle existed in their way.

By the provisions of the act under which the proceedings were taken for widening and straightening Broadway, for opening Sixty-eighth street, extending Madison avenue, and locating and laying out Riverside park, commissioners were required to be, and were in fact, appointed by this court, for the purpose of exercising the authority and discharging the duties required in the promotion and consummation of those improvements.

The object of their appointment was the performance of the duties prescribed by the act.

And among them were not only the duties of determining the land to be taken, and the apportionment of the damages and benefits resulting therefrom among the persons and upon the property affected, but beyond that, they were required to cause all such surveys, maps, profiles, plans and other things as they might judge necessary to be done, to be made and prepared for their use.

The terms, as well as the general scope and spirit of this section and of those succeeding it, relating to such enterprises, exhibit it to have been the design of the legislature, in the enactment of the law, that the entire authority to be exercised in determining the land to be taken, the compensation tó be made for it to the owners and others interested in it, and the persons and property benefited by the improvement, upon whom the expense should be assessed and by whom they should be ultimately borne, should be possessed and used by the commissioners appointed under its provisions by the court.

They constituted the tribunal in which all the powers, provided by the statute for the promotion of the object designed to be accomplished by the proceedings prescribed, became vested.

And it was, accordingly, by their authority and under their employment, that all surveys, maps, profiles and plans, deemed to be necessary, were prepared and made.

The persons making them necessarily did so, for them, by their engagement and under their direction.

They were subordinates and servants of the commissioners, so far as they acted in the accomplishment of those results. .

The commissioners, through them, under the authority given by the statute, and pursuant to its terms, caused the surveys, maps and profiles to be made. That was the mode required to be pursued, and the affidavits of the relator, Bagley, on which his applications for writs of mandamus were made, show that it was, in fact, the course adopted by the commissioners.

For he states that he was employed and appointed by them as surveyor to the commissioners, and performed his duties under that employment, and those duties were performed in executing the authority conferred upon them.

For the services so performed, the statute does not secure to the person or persons performing them, the right to resort to the city itself, or the fund to be created by the commissioners’ assessments, for compensation ; neither does it confer upon the commissioners the power of investing the persons employed by them, for the purpose of making surveys, maps and profiles, with the right to proceed either against the city or fund for their remuneration.

If it did, as they are not restricted to .the employment of any specific number of such persons, a multitude of suits, or proceedings by way of mandamus, might be incidentally provided for, alike vexatious to the public authorities and detrimental to the public interests.

In the supplemental affidavit of this relator, the statement is made that his claims represent not only his own services, but also those of a number of skilled employes and experts in such matters. And if he can proceed as an independent claimant for compensation, no good reason exists for denying the same privilege to each of those persons. For as the statute has secured no such right as the result of the commissioners’ employment, it must be maintained, if that can be done at all, on the simple circumstance that services have been performed for them and in pursuance of their authority.

That is as true in the ease of each one of such employes and experts as it is in the case of the relator. If he can recover for his services by an independent proceeding, either by way of suit or mandamus, then the same right should be conceded to them, for their claims must be equally meritorious.

But that was not the design or intent of the act under which the proceedings were carried on. By that, the tribunal or body between the public and the work to be performed was the commissioners and they alone. The proceedings provided for, were to be, and were, carried on by them, and they were the only officials known either in their initiation, progress or consummation. What was done in the course of their proceedings, was done for them, under their direction, and in subordination to their authority. This is not only apparent from the section prescribing their powérs and duties, but also from the specific direction requiring them to cause the surveys, maps and profiles to be made, required by them in the course of their proceedings. And it is further confirmed, in the most explicit manner, by the succeeding section of the act, which provides for the commissioners receiving, in addition to their own fees, all reasonable expenses for maps, surveys and plans.

There is, therefore, not only no provision giving the person or persons who may make surveys, maps, plans and profiles, under the the employment of the commissioners, the right to demand compensation from the city, either by suit or mandamus, but, on the other hand, the right to receive the compensation for such services is, by this section, expressly confined to the commissioners.

While the act of 1815 has prescribed some changes, respecting some of the proceedings to be taken for opening parks and public squares, it has left the preceding law wholly unaffected in its provisions concerning this class of services. Compensation for them are claims against the commissioners, who alone are empowered to receive the amount from the city, and disburse it among the subordinates employed by them. And to the same effect are Laws of 1862, chapter 483, section 5.

The proceedings are purely statutory, and that is the remedy prescribed by the terms of the law, by which the surveyor, and the persons connected with his employment, are to be remunerated for their services. And it is the only remedy afforded by the statute for such remuneration. Arid where that is the case, the rule is well settled that no other remedy than the one prescribed can be pursued. The applications made by the relator Bagley were properly denied upon this ground. He was neither entitled to the writ of mandamus, nor to the maintenance of any other proceeding whatsoever, against the city nor any of its officers for the recovery of his remuneration.

His remedy is solely and exclusively that given by the statute, which contemplates and provides for the presentation of his claim by the commissioners as a portion of their expenditures, and its satisfaction by their disbursement of the amount received for that purpose.

Whether even that remedy has not been lost by the taxation of the commissioners’ bills, without including thosé of the surveyor at the same time, it is not necessary now to decide.

The right of the commissioners to the writ of mandamus to enforce payment of their claims, arising out of the "proceedings to straighten and widen Broadway, open Sixty-eighth street and extend Madison avenue, depends upon other provisions contained in the act of 1813, already referred to.

It is claimed in their behalf that the right exists, whether their claims are payable, under the terms of the act, directly out of the fund provided by the assessments or may be enforced as general liabilities against the city.

But even though demands against corporate officers or corporations themselves may, under certain circumstances, he enforced by mandamus, where an action for damages may also be maintained in favor of the claimants, the courts have not yet gone so far as to hold that it may be done where the action can be maintained for the recovery of money claimed to be due and owing. On the contrary, there it is held that the action for the recovery of the money or debt due is entirely adequate and complete for the party’s redress, and he is accordingly confined to that remedy.

The claims presented for payment by the commissioners are very much like those adjudicated in these authorities, and for the enforcement of which the writ of mandamus was denied. They are claims for the recovery of definite and specific sums of money, and for that reason the appropriate subjects of ordinary actions at law, unless payable exclusively out of the fund created by the assessments.

If demands due from the corporation could, as a general principle, be enforced by the writ of mandamus against one of its officers, there would be no need of a legal action for their recovery. The action would then become the exception, instead of the writ, as the latter is, at present, under well-settled principles of law.

Besides, if the claims are due from the city, as other debts owed by it are, that, of itself, would be a good reason for denying applications for their payment through the writ of mandamus against one of its officers. By the statute under which the commissioners proceeded, the assessments for benefits derived by adjacent and other property owners, from the improvements made, are rendered the final source from which all payments are to be received. The expenses, in the end, are all to be borne by persons owning or interested in the property benefited.

But before the funds can be derived from that source, expenditures are required to be made to persons who may be divested of their property for the purpose of making the improvements, and also to pay expenses incident to the proceedings themselves. Great injustice would often be produced by deferring their payment until the assessments could be collected.

Accordingly, the legislature did not render their payment dependent upon that contingency. ' The amounts which might become due for those objects were not, in the first instance, required to be paid out of the funds derived from the assessments.

But for the payment of awards for property taken, proceedings by way of actions against the mayor, &c., were provided, after the expiration of four months from the confirmation of the commissioners’ report. And, as to the fees and expenditures of the commissioners, an unqualified duty of payment was imposed upon the same body.

It is claimed in behalf of the commissioners, that, as the law provides expressly for a remedy by action in favor of the owners of property taken for the purposes of the improvements, and omitted to do the same for the recovery of the fees and expenses of the commissioners, an action for the latter cannot be sustained. But that result does not and cannot follow from this omission, if enough can still be found in the act to warrant an action at law in their favor, without the aid of the other provision.

The point to be considered is whether, under the settled principles of law relating to this subject, sufficient has been provided to secure to them the right to maintain actions at law in which their expenses and compensation can be recovered. That there has, would seem to follow from the fact that no remedy against the fund to be produced by the assessments has, either expressly or by reasonable implication, been given them; and from the positive provision, made without qualification, that the compensation and reasonable expenses of the commissioners for maps, surveys, plans, clerk-hire and other necessary expenses and disbursements, should be paid by the mayor, aldermen and commonalty of the city of New York; that the amounts paid should be included in the assessments made upon persons benefited by the improvement, and that the city should be reimbursed from that source.

By section 185, the moneys paid for charges and expenses of the estimate, assessment and report that may be made, and all such other expenses, disbursements and charges as may properly attend the proceedings taken to open, enlarge, extend or otherwise improve streets, are to constitute a claim for this reimbursement.

This provision clearly contemplates their payment before the collection of the assessments, and payment, too, by the mayor, aldermen and commonalty, for that is the body to be reimbursed by the provision made.

In this respect it is in complete harmony with the succeeding provision, contained in the other section referred to. And that provides for the payment to be made by the city, and for including the amounts paid in the assessments. By these provisions, the duty of the city to pay is rendered complete, not out of the assessments, but generally, and after payment the amounts paid are to be reimbursed to it from the assessments.

It would be difficult to create such an obligation by clearer terms ; no room appears to be left for doubt upon the subject. That such an obligation to pay may be enforced by action, and that an action is the appropriate mode of enforcing it, is well sustained by authority.

“ If a new right is created by statute, and no remedy is prescribed for the party aggrieved by the violation of such right, the court, upon the principle of a liberal or comprehensive interpretation of the statute, will presume that it was the intention of the legislature to give to the party aggrieved a remedy, by a common-law action, for the violation of his statutory right, and he will be permitted to recover in an appropriate action founded upon the statute.” This principle clearly includes the claims of the commissioners for their services and expenses in opening, extending and widening the streets referred to, and it is well sustained by other cases relating to the same subject.

Writs of mandamus were, therefore, properly denied in these applications of the commissioners, on the ground mentioned in the orders appealed from.

It seems to have been supposed by the appellants’ counsel that cases were before the court in which commissioners’ claims were made for proceedings to locate and lay out the Riverside park., That, however, proves to be a misapprehension, and for that reason it is unnecessary to consider the effect of the provisions of the act of 1815, concerning such improvements.

The orders appealed from are right, and they should be affirmed, with costs.

Davis, P. J. and Daniels, J., concurréd.

Orders affirmed, with costs.

       Baker v. Utica, 19 N. Y., 326.

       2 Revised Laws, 409-10, § 178.

       2 Revised Laws, 422, § 189.

       Laws of 1815, 154, chap. 152.

       Almy v. Harris, 5 John., 175; Stafford v. Ingersoll, 3 Hill, 39; Cook v. Kelley, 12 Abb., 35, 74; Id., 466 ; Dudley v. Maykew, 3 Com., 9.

       People v. Mayor of New York, 25 Wend., 680; People v. Perry, 25 Barb., 73; People v. Supervisors of Chenango, 1 Kern., 563; People v. Supervisors of Fulton Co., 14 Barb., 52.

       2 Revised Laws, 419, § 185.

       2 Revised Laws, 418, § 183.

       Id., 422, § 189.

         2 Revised Laws, 419, 422, §§ 185, 189.

       Clark v. Brown, 18 Wend., 213, 220.

       Ewer v. Jones, 6 Mod., 27; Braithwaite v. Spinner, 5 Mees. & Wells, 326, 327; Dudley v. Mayhew, 3 Com., 9, 15; Stafford v. Mayor, etc, 6 John., 1, 7; Id., 541.


source: Caselaw Access Project

author: Davis, P. J.:

license: Public Domain

text:
    HERMAN COPPERMAN, Plaintiff in Error, v. THE PEOPLE, etc., Defendants in Error.

      Stolen goods—receiver of—indictment—former transactions between thief and receiver—evidence of.

    On the trial of an indictment, charging the offense of receiving stolen goods, conversations, had between the accused and the thief on former occasions, when the accused had received from him goods similar to those described in the indictment, are admissible in evidence as tending to show guilty knowledge on the part of the receiver.
    A charge of the judge, that it was material for the jury to determine whether the transaction was a sale or pledge, was correct; as, if it was the former, if the sum paid were very much less than the real value of the goods, it would be material on the question of notice.
    Writ of error to the Court of General Sessions of the Peace in and for the city and county of Hew York. The facts are stated in the opinion.

      A. Oakey Kail, for plaintiff in error.
    The judge erred in admitting evidence of conversations relating to prior transactions. (Coleman v. The People, 1 N. Y. Sup. Ct. Rep., p. 3, addenda; The People v. Rando, 3 Parker Cr., 339.)

      B. K. Phelps, for defendants in error.
    Evidence of prior transactions admissible on question of- guilty knowledge. (Reg. v. Dunn, 1 Moody, C. C., 146; Wood v. U. S., 16 Peters’ Sup. Ct. R., 360; 3 Greenlf. Ev., § 15; Roscoe’s Crim. Ev., 876; Commonwealth v. Jenkins, 76 Mass. (10 Gray), 485; Reg v. Foster, 29 Eng. L. and E., 548.)
   Davis, P. J.:

The plaintiff in error was indicted for, and has been tried and convicted of, the offense of receiving stolen goods, knowing the same to have been stolen.

The offense, charged in the indictment, is alleged to have been committed on the 30th of June, 1871, in receiving two parcels of silk, of one pound each, the property of certain persons named (who composed the firm of R. Gardner & Co.), stolen from them by one James Robinson. Robinson was the principal witness on the part of the people. He was, at the time of the alleged offense, and for some years before, a clerk in the wholesale establishment of R. Gardner & Co. The theft of the silk, .by Robinson, was both proved and admitted. He testified that on the 30th of June, 1871, he took the silk from the store of his employers and carried it to the plaintiff’s shop and sold it to him for six dollars. The value of the silk was shown to be $17.50.

Robinson also testified that he had, on ten or twelve occasions within a year, before the transaction charged in the indictment, taken from his employers goods of the same or similar kinds, and pawned or sold them to the plaintiff. That on the first two occasions he pawned the goods, taking tickets for the same, which he afterwards sold to plaintiff, and, on all the other occasions, he sold the goods to him for sums much less than their real value.

The plaintiff in error was a licensed pawnbroker, and it was claimed and testified to in substance by him (and other testimony was given tending to establish) that he had received the goods in pawn in the course of his business, loaning upon them the sums stated by Robinson to have been paid. But three questions are made on the part of the plaintiff in error. First. That the court erred in admitting conversations which related to such transactions as were had at a time prior to the one embraced in the indictment; second, that the court erred in charging the jury that it was material for them to consider whether the indicted act was a pawn or sale; and third, that the judge erred in not directing an acquittal upon the evidence. No point is made upon any informality in the record. To constitute the crimes two facts were necessary to be established:

First. That the goods had been stolen.

Second. That the receiver knew at the time of receiving them that they had been stolen.

The first of these facts was conceded, and it was also clearly shown, and not disputed, that the plaintiff in error received the goods from the person who had stolen them. The character of the act of receiving them, and whether that act was accompanied with the guilty knowledge required by the statute, were the controverted facts of the trial.

It was sought on the part of the people to show, as tending to prove the guilty knowledge, that, before the particular act charged, there had been a series of similar transactions between the same persons, in which the plaintiff in error had received from Robinson goods similar to those described in the indictment and which the latter had stolen from Gardner & Co. The fact of the transactions was not objected to; but the conversations had between the accused and Robinson at the time of such transactions were objected to and admitted under exception.

We think the court committed no error in admitting such conversations. The competency of such evidence was affirmed in Regina v. Dunn, and we are aware of no case which conflicts with that decision.

The evidence offered and received in this case did not go outside of transactions between the accused and Robinson. It related to goods stolen by him and directly delivered to the accused. The goods were similar in kind, and were received in each case under like circumstances. The transactions were some ten or twelve in number, and, if Robinson were believed, they were, except the first two, sold at prices much below their actual value. Robinson was a clerk in a store, engaged in stealing from his employers from time to time and carrying the stolen goods to the plaintiff’s shop. Now, while the precise point of inquiry for the jury, was whether the plaintiff knew, when he took the packages in question, that Robinson had stolen them, yet the mode of proving such knowledge was not restricted to what transpired at the time of the very act charged in the indictment. It would clearly have been competent to have proved that, before receiving the silk in question, the plaintiff in error had stated that he knew Robinson was stealing goods from his employers and bringing them to him, and from such an admission a jury might find that he knew the silk, received on the last occasion, had also been stolen.

So it was competent, in connection with the transactions themselves, to show conversations between the parties' which tend to establish knowledge of their real character, and it is for a jury to say whether they go far enough to show that the receiver knew the nature of Robinson’s acts, both in those and in the last transaction.

It is for the jury to judge whether the previous conversations show an understanding with the thief or a knowledge of his crime, and conversations having a tendency to show either of those things are properly admissible, especially when accompanied with acts of dealing which they tend to characterize. The idea that each conversation, in order to be competent, must “ prove that the thief communicated his crime, or that the receiver admitted his knowledge of the crime,” cannot be sound, because such a rule would take from a jury its peculiar province of determining the meaning of the language used by the parties, their intention in using it and the inferences justly to be drawn from it.

It is enough that the conversation tends to prove, under any fail-construction a jury may give to it, the guilty knowledge necessary to be found.

This, we think, is the rule deducible from all the authorities, and we think there was no departure from this rule on the trial.

The "objection to the charge is not well founded. It became quite material for the jury to determine whether the transaction, charged in the indictment, was a sale, or a pawn to secure a loan. Robinson testified that it was a sale; the plaintiff in error, that it was a pawn.

The price paid, if a sale, being much less than value, was a circumstance to be considered by the jury; but if a pawn to secure a loan, the amount loaned was not material as bearing on the question of notice.

Besides, as the court charged, in substance, that if Robinson had testified falsely in any material point, he was to be disbelieved in all respects, and it was with reference to the conflict between his and the plaintiff’s evidence as to the character of the transactions, that the charge called the special attention of the jury to that subject, and in that regard it was very favorable to the plaintiff in error.

In respect to the third point, it need only be said that there was a conflict of evidence quite too great to have justified a direction of acquittal.

The court submitted every question with entire fairness to the jury, and the case was one peculiarly within their province.

If the case could be disposed of on the merits, the judgment should be affirmed; but for reasons assigned in the opinion of Daniels, J., in Hildebrand v. The People, decided at the present term, the proper course is to dismiss the writ.

Donohue and Daniels, JJ., concurred.

Writ dismissed. The record was afterwards amended by consent of the district-attorney, and the judgment was affirmed.

       1 Moody C. C., 146.

       2 Russ. on Crimes, 776 (3d ed.); 3 Greenl. E., § 15 ; 16 Peters, 360 ; Roscoe Crim. E., 876; Commonwealth v. Jenkins, 76 Mass. (10 Gray), 485; Reg. v. Foster, g. L. and Eq., 548.


text:
    DEIDERICK HILDERBRAND, Plaintiff in Error, v. THE PEOPLE OF THE STATE OF NEW YORK, Defendants in Error.

      Larceny—clerk's entry of judgment—what should contain.

    A treasury note of the denomination of fifty dollars was handed to the plaintiff in error to take ten cents out of it, for the payment of a glass of soda-water; he appropriated the entire amount of the note to his own use ; held, that upon proof of these facts he could be convicted of larceny.
    The return stated that the prisoner appeared in his own proper person and was in due form of law tried and convicted ; held, that as it nowhere stated that he left the court after he so appeared, the presumption is that he remained and was present during the whole of the trial.
    The clerk’s entry of the judgment pronounced, is not required to state what succeeded the verdict and preceded the sentence, and it need not appear from it that the prisoner was asked, before sentence, whether he had anything to say why the sentence should not be pronounced upon him for the offense of which he had been convicted.
    To review the conviction and judgment in criminal cases, requires a formal judgment record to be made, signed and filed, and if that is not shown by the return to have been done, the court has nothing before it on which the case can be properly considered.
    When a record shall be made, signed and filed as the statute prescribes, and it shall not appear from it, that this inquiry was made of the defendant before he was sentenced, then it may be necessary, for that reason, to reverse the judgment pronounced, but not the conviction.
    Weit of error to the Oourt of General Sessions of the city of New York, to review the judgment of that court entered upon the conviction of the plaintiff in error of the crime of grand larceny. The facts appear in the opinion. The court charged the jury that if they were satisfied that the complainant handed to the prisoner a fifty-dollar bill, for him to change and take ten cents out of it, and return to him the balance of the fifty dollars; and if, when the bill was so delivered to the prisoner, he understood that the bill had been so handed to him for the sole and only purpose of having it changed, and taking out ten cents, and delivering the balance of the money to the complainant, and that, when the prisoner took the bill, he intended to convert the balance, over and above the ten cents, to his own use, they should convict the prisoner of grand larceny.

      Wm. F. Kintzvng, for the plaintiff in error.

      B. K. Phelps, District Attorney, for defendants in error.
   Daniels, J.:

The plaintiff in error was convicted of the crime of grand larceny, upon evidence showing that a treasury note of the denomination of fifty dollars, was handed to him to take ten cents out of it for the payment of a glass of soda water. Instead of doing that, he appropriated the entire note to his own use, and the court charged the jury that they could convict of larceny upon this proof.

An exception was taken to that portion of the chargé, which in effect was the only exception in the case; for those previously taken, simply presented the same point in a different form.

That the plaintiff in error could properly be convicted of larceny on proof of those facts, is a proposition which the authorities have settled against the prisoner. It is also urged, in the prisoner’s behalf, that it does not appear that he was present during the trial. The return states that he appeared in his own proper person, and was in due form of law tried and convicted. As it is nowhere stated that he left the court after he so appeared, the presumption is that he did remain and was present during the whole of the trial; certainly, no presumption to the contrary can be entertained, as long as nothing appears to support such an inference.

The remaining objection, taken in behalf of the prisoner, is made upon the omission of the return to show that he was inquired of, before sentence, whether he had anything to say why the sentence should not be pronounced upon him for the offense of which he had been convicted by the jury.

From the return made to the writ of error, it cannot be determined whether this requirement of the common law was observed in this case or not. No record of the proceedings is contained in the case, showing what did transpire between the conviction and sentence. All that has been brought before the court by the writ of error, after the verdict, is the clerk’s entry of the judgment pronounced. That entry is not required to state what succeeded the verdict and preceded the sentence, and if made as it is required to be, could not show whether this inquiry was made or not. What the entry is to contain, is prescribed by the statute of the State. It is required to contain a brief statement of the offense for which the conviction shall have been had, abridged to such an extent from the indictment as to be sufficient to maintain the averments relating to it, necessary to be made in an indictment against the same person for a second offense, with the judgment pronounced upon the conviction. Nothing but the conviction, with the description of the offense for which it may have been had, is required to precede the entry of the judgment pronounced, while the inquiry mentioned.must follow the conviction and precede the judgment.

And it is just what the statute has nowhere required to be entered by the clerk in his minutes; consequently, it is a circumstance which, in the ordinary course of the proceedings prescribed by the statute, could not properly appear by the entries required to be made by the clerk in his minutes.

If the judgments pronounced in criminal cases, are to be reversed for the reason that a return, like the present one, does not show whether this inquiry was made or not, very few criminal judgments can be maintained, even though, in all of them, the most scrupulous care may have been taken, to conform strictly to this requirement of the common law.

The purposes for which the clerk is required to make the entries in his minutes, are mentioned in the statute, and that of returning them as the record in this case, in answer to a writ of error, is not among them. These purposes are to enable the clerk to transmit a proper statement of criminal convictions and judgments to the secretary of state, to supply the sheriff with a proper transcript to convey the convict to prison, and to constitute evidence of the conviction and sentence where no record of the judgment has been signed and filed ; while. the judgment, the writ of error issues to review, is that which is rendered upon the indictment—the complete judgment in the case. This is evident from the circumstance that the prisoner is given the right to require the district attorney to make up a record of the judgment, and in case he fails for ten days afterward to do so, the defendant himself may cause the same to be made up, signed and filed. There would be neither necessity for, nor propriety in such a provision, if the judgment could be reviewed on the clerk’s entries. And no other object can have been designed to have been subserved by its enactment, than to place the proceedings in such a form as would enable the defendant to have them reviewed by writ of error. That the entries of the clerk are not designed to be such a record, is further evident from the section providing when the minutes may be used as evidence; for, by the express terms used, that can only be done in cases where no record of the judgment has been signed and filed.

The bill of exceptions provided for, also, is to be returned upon writ of error, as authorized at the time of the enactment of the statute, in personal actions. And that could only be done at that time, in those actions where a formal judgment record had been made, signed and filed.

The entire mode of proceedings, prescribed for reviewing the conviction and judgment in criminal cases, requires a formal judgment record to be made, signed and filed; and if that is not shown by the return to have been done, the court has nothing before it on which the case can be properly considered. To allow the practice, adopted in the present instance, to be substituted for that devised by statute, would be dangerous in the extreme. Certainly a large majority of the felons in the ‘State prisons of the State would be set at liberty under it, if the clerk omitted from his minutes, what the law does not require to be entered in them, a statement of the circumstance that the defendant was asked whether he had anything to say why sentence should not be pronounced upon him, and that, too, when in all the cases, the inquiry may, in fact, have been made.

In the absence of a record, the court has nothing before it, on which it can say whether the objection now under consideration, is well founded or not. When a record shall be made, signed and filed, as the statute prescribes, and it shall not appear from it that this inquiry was made of the defendant before he was sentenced, then it may be necessary, for that reason, to reverse the judgment pronounced, but not the conviction.

In that event, as the conviction was in all respects regular, the defendant would have to be brought again before the court, in order to have the inquiry made of him, before the sentence, whether he has anything to say why sentence should not be pronounced; for, where the conviction is regular, that is all the defendant can be entitled to for the purpose of redressing the error, under the terms of the statute relating to these cases.

But, as no record has been made by which the point can now be bi'ought before the court for its consideration, the judgment entered in the clerk’s minutes can be neither affirmed nor reversed, but the writ of error be dismissed.

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

Writ of error dismissed.

       People v. Call, 1 Denio, 120; People v. McDonald, 43 N. Y., 61; Reg. v. McKale, 11 Cox C. C., 32.

       Stephens v. People, 19 N. Y., 549.

         3 R. S., 5th ed., 1031, 1032, §§ 5 and 8.

       3 R. S., 5th ed., 1032, 1033, §§ 7, 12, 13, 14.

       3 R. S., 5th ed., 1031, § 4.

       3 R. S., 5th ed., 1032, § 12.

       Id., 1029, § 29.

       Laws of 1863, 406.

       Weed v. People, 31 N. Y., 465.


author: Donohue, J.:

text:
    JOHN B. GREENE, Respondent, v. THE MAYOR, Etc., OF THE CITY OF NEW YORK, Appellant.

      Contract—void under section 104, of chapter 137, Loads of 1870, when made without advertising.

      ' The plaintiff entered into a contract with the commissioner of public works, for laying water-pipes in the city of New York, and performed work and furnished materials thereunder. The contract was not founded upon sealed bids or proposals, made in compliance with public notice, as required by section 104, of chapter 137, Laws of 1870. Held, that the contract was void.
    The case of The People ex rel. Navano v. Van Nort (64 Barb., 205) distinguished.
    Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury.
    This action was brought by the plaintiff to recover the sum of $52,748.08, with interest from the 10th of November, 1871, for work executed, and supplies furnished by him, under and pursuant to two contracts, entered into on the 1st day of July, 1871, by and between him and the commissioner of public works, in behalf of the defendant, in laying water-pipes to extend the distribution of Croton water through the city.
    It was alleged in the complaint, that the work, labor and services had been duly certified by the chief engineer of the Croton aqueduct and the commissioner of public works, and that upon the 10th day of November, 1871, the said commissioner made the necessary requisitions upon the comptroller of the city for the payment of the plaintiff, and that plaintiff’s claim had been duly audited by the finance department.

      The defendant alleged that the contract with the plaintiff was void, as the same was not founded upon sealed bids or proposals, made in compliance with public notice, duly advertised for ten days in newspapers in the city of New York, as required by the charter; and he also alleged, upon information and belief, that the prices or rates allowed to the plaintiff by his contract were excessive and extravagant.
    When the case came on for trial at circuit, the judge granted a motion for judgment in favor of the plaintiff and directed the jury to find a verdict for the plaintiff for the amount claimed, with interest. From the judgment entered on this verdict, the defendant appealed.

      E. Delafield Smith, corporation counsel, for the appellant.

      John IT. Strahan, for the respondent.
   Donohue, J.:

Appeal from a judgment in plaintiff’s favor. The facts are, that the plaintiff, under a contract with the department of public works, performed the work sued for, and the answer of the defendants is, that in substance the contracts are made without advertising for, or inviting sealed bids, as required, by section 104, chapter 137, Laws of 1870. The further defense that the work was charged at extravagant prices, was abandoned on the trial and on the appeal.

The claim on the part of the city is, substantially, that in order to protect itself from the ordinary liability, which, as a corporation, it might be under, for contracts improvidently made by its agents and servants, section 104 was passed; and, the intent and object of that law, is, that in cases calling for expenditures of $1,000, unless three-fourths of the common council otherwise decided, sealed bids should be invited and the work done under some of these bids. Whatever may be the argument in the case as to the price being reasonable, the court can only look at the plain words of the act, and, no matter how meritorious the plaintiff’s claim, follow that law; and, unless there is something that takes this work out of the ordinary rule, the plaintiff must fail.

The plaintiff claims that by an act, subsequent to that above quoted, there is a provision authorizing the comptroller to borrow $500,000, for the improvement of the lower reservoir, and for increasing the supply of water in the lower part of the city, under the direction of the department of public works, under which act this work was done; and plaintiff contends, under the authority of Navano v. Van Nort, that the provision renders advertising for bids unnecessary. In that case, the court held, expressly, that the act under which that work was done, placed a discretion in the commissioner, inconsistent with doing the work under such bids; in fact, holding that the terms of the act expressly permitted the work being so done.

In this case, the section relied on, to bring the case within the Navano v. Van Nort case, vests no discretion in the commissioner, other than that in regard to any other work which the law places in his department. All work to be done under the commissioner, is to be done under such bids, and it is hard to see any distinction between the work here provided for and any other. The section 104 is one of great importance to the city, acting through its agents, and one, the policy of which the court is bound to sustain. The work here is the ordinary work of the department, and should have been done in the ordinary way. The plaintiff furnishes no excuse for the mode in which his contract was made, and he must fail. Judgment should be reversed, and new trial ordered.

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

       § 6, chap. 383, Laws 1870.

       64 Barb., 205.


text:
    THE PEOPLE ex rel. THOMAS P. ELDRIDGE and others v. ENOCH L. FANCHER, Justice.

      Habeas corpus—res adjudícala—debts fraudulently contracted—discharge from.

    One Friedlander, who was in the custody of the sheriff, under an execution issued against his person in favor of Eldridge and others, applied to Mr. Justice Fancher, on habeas corpus, to obtain his discharge. The sheriff, in his return, alleged that a writ of habeas corpus had previously been granted by Mr. Justice Robinson, on the application of the said Friedlander, and that the judge had then decided that he was not entitled to his discharge, and that the adjudication was made on the same facts, on which he now asks his discharge in this proceeding. To this return, the prisoner put in a traverse, denying, as a matter of fact, that the case, as then presented, had been presented to, and passed on by Judge Robinson. To this the sheriff demurred. Held, on the demurrer, that the case was not res adjudícala.

    Article 5, of chapter 5, title 1, part 2, of the Revised Statutes, entitled, “Of voluntary assignments,” was not abolished by the passage of the non-imprisonment act of 1831 (the Stillwell act).
    Certiorari to review the decision of Mr. Justice Fancher, discharging, on habeas corpus, one Max Friedlander from the custody of the sheriff, under an execution against the person of Friedlander in favor of Eldridge and others.
    The relators obtained judgment against Friedlander on the 29th of August, 1871, for $2,572.89, and, on the 24th of September, 1872, after an execution upon the said judgment against the property of the said Friedlander, had been duly issued to the sheriff, and returned by him unsatisfied, an execution against his person was issued to the sheriff, upon which he held Friedlander at the time of the issuing the writ of habeas corpus by Mr. Justice Fancher.
    On the 5th of August, 1872, Friedlander applied, by-petition, to one of the judges of the Court of Common Pleas, that his estate might be assigned for the benefit of all his creditors, and that his person might thereafter be exempted from arrest or imprisonment, by reason of debts arising upon contracts, pursuant to article 5, chapter 5, title 1, part 2, of the Revised Statutes, entitled, “ Of voluntary assignments,” and, on the 18th of October, 1872, the said petition and relief were granted.
    An application was afterward made by Friedlander, upon a habeas corpus, to obtain his discharge from imprisonment upon the execution against his person in favor of the relators. The judge refused to release him. The relators claimed that the former application was founded upon the same facts as the present one. This was denied by Friedlander.

      G. A. Seixas, for the relators.

      Thomas Allison da Horatio F. Averill, for Friedlander.
   Donohue, J.:

In this case, the relator asks a review of the proceedings of Judge Fanoher, discharging one Friedlander from custody on habeas corpus.

The facts are, that Friedlander, owing debts on contracts fraudulently made, applied, under article 5, chapter 5, part 2, of the Revised Statutes of this State, to procure the exemption of his person from imprisonment under that act. He duly made the assignment and obtained his discharge under that act, and, being imprisoned in actions on some of the contracts made prior to his application, applied to Judge Robinson, on habeas corpus, to obtain his discharge, which was denied. He then, on a new writ, applied to Judge Fanoher, who, after hearing, granted the discharge sought now to be reviewed.

The first point raised by the relator’s counsel, is that the question was res adjudicata. Any system of law which would keep a prisoner in custody, when the facts show him entitled to his discharge, would be a perversion of justice, and, unless there is some reason to believe that the case and questions, as presented to Jndge Fanoher, had already been passed on by Judge Robinson, the point taken must fail. In looking at the record, we find that the proceedings before Judge Robinson were set up as a bar here, and that to such return the prisoner put in a traverse, denying, as a matter of fact, that the case, as then presented, had been presented to, and passed on by Judge Robinson. To this the sheriff demurred, and, on that demurrer, Judge Fanoher gave judgment. The case hardly presents such a state of facts as brings the relator within the rule laid down in the Barry v. Mercein case. The rule is there stated as broadly as courts could well go where liberty was concerned, and any extension of the rule would work injustice. As J udge Robinson did not pass on the case as presented to Judge Rancher, this point must fail.

The next ground taken by the relator, is that the non-imprisonment act, in fact, abolished the article under which the original discharge was sought, because it made provision in respect to debts fraudulently contracted, and the mode of discharging them. In this the relator is mistaken. After the non-imprisonment act was passed, no discharge under any other provision as to simple contract debts, without fraud, was needed, and the article thus on the statute book, and continued in law for forty years, has only debts, fraudulently contracted, and on which persons can be arrested, to act on.

Again, that the act of 1831, non-imprisonment act, provides a mode, after arrest, of obtaining a discharge, gives no evidence that the legislature did not intend to give the debtor a mode at any time before arrest or final judgment, in which he could, on his own motion, and on a surrender of all he possessed, obtain such discharge. Article 6 provides for an entirely different proceeding, and has no application to the rights claimed by Rriedlander.

Where, as in this case, in order to obtain his original discharge, the defendant had to assign all he possessed, and where it must be taken he did, there does not seem to be any good reason to strain the law to hold him.

Daniels, J., concurred.

Proceedings affirmed.

       25 Wend., 64.


text:
    JOHN L. BROWN, Appellant, v. THE MAYOR, Etc., OF THE CITY OF NEW YORK, Respondent.

      Contract by commissioner of public wm'ks—when void under acts of 1857 and 1861 — certificate of commissioners under chap. 580, Laws of 1872—what it must contain.

    On the 27th of September, 1870, the commissioner of public works, in behalf of the city, entered into a contract with the plaintiff for regulating, grading and setting curb and gutter stones in Tenth avenue, from Manhattan to One Hundred and Fifty-fifth street, and flagging the sidewalk thereof, without complying with the provisions of section 38 of chapter 446 of the Laws of 1857, and chapter 308 of the Laws of 1861, requiring all contracts to be founded on sealed proposals, made in compliance with public notice; held, that the contract was void.
    Section 1 of chapter 383 of the Laws of 1870 contains the following clause : “ The commissioner of public works is hereby directed to immediately contract for the regulating and grading of the Tenth avenue, from Manhattan street to One Hundred and Fifty-fifth street;” held, that as the contract in suit provided for the setting of the curb and gutter stones and flagging the sidewalk, as well as for regulating and paving the avenue, it was unauthorized by the statute and void.

      Semble, that the statute merely authorized the commissioner to contract, without preliminary action of the common council or other local authority. It did not direct the manner of contracting, and the contract should, therefore, be made in compliance with the existing laws, and not arbitrarily, on such terms and with such persons as the commissioner might choose.
    The commissioners, appointed under chapter 580 of the Laws of 1870, indorsed upon the plaintiff’s contract, a certificate that they were “ satisfied that there has not been any fraud in relation to the making or entering into the said contract;” held, that this was not sufficient, the statute requiring them to certify that “ they are satisfied that no fraud has been perpetrated in relation thereto or in the performance thereof.”
    Appeal from a judgment entered on an order of the judge before whom the cause was tried, dismissing the complaint.

      John E. Develm, for the appellant.

      E. Delafidd Smith, corporation counsel, for the respondent.
   Davis, P. J.:

.This action was tried before Mr. Justice Van Bbunt, at circuit. At the close of the plaintiff’s case, the complaint was, on motion of defendant’s counsel, dismissed with costs. The action was brought upon a contract, made by the commissioners of public works on behalf of the city, with the plaintiff, on the 27th of September, 1870, “ for regulating, grading and setting curb and gutter stones in Tenth avenue, from Manhattan to One Hundred and Fifty-fifth street, and flagging the sidewalk thereof.” The questions raised upon the motion to dismiss the complaint were substantially : First, that the commissioners of public works had no authority under the law to enter into the contract. Second, that the contract was not founded upon sealed proposals, in compliance with the provisions of section 38 of the charter of 1857, and section 1 of the act of April 17 th, 1861, entitled “An act relative to contracts by the mayor, aldermen and commonalty of the city of New York.” Third, that the certificate of the contract commissioners, appointed under the provisions of chapter 580 of the Laws of 1872, was not in accordance with the requirements of the act, and did not validate' the contract or relieve it from the objections as to the authority of the officers who made it.

On these grounds the learned justice granted the motion. Section 38 of the charter of 1857, and the act of April 17th, 1861, require that all contracts shall be made by the appropriate heads of department, and shall be founded on sealed proposals, made in compliance with public notice, advertised in such newspapers of the city as may be employed for that purpose; that such notice shall be published ten days, and that all contracts shall be given to the lowest bidder, who shall give security. It was substantially conceded at the trial, that the contract in suit had been made by the commissioner of public works with plaintiff, without compliance with any of the requirements of the above provisions. It has been repeatedly held that a contract so made is void.

It is, however, insisted by plaintiff that the power to make this contract, without compliance with the formalities required by the existing laws, had been expressly conferred by the legislature upon the commissioners of public works.

In section 1, of the act of April 26th, 1870, entitled £‘ An act to make further provisions for the government of the city of New York,” a clause appears in the words following: “The commissioner of public works is hereby directed to immediately contract for the regulating and grading of the Tenth avenue, from Manhattan street to One Hundred and Fifty-fifth street.” This act, it will be observed, became a law on the 26th of April, 1870. The contract with plaintiff was not made till the 27th of September, 1870. No construction, founded upon the idea of immediate necessity, rendering it impracticable or inconvenient to comply with the forms of existing laws, need be given.

It is not easy to see that this provision goes any farther than to clothe the commissioner with power to contract, without preliminary action of the common council or any other local authority, to determine the necessity or expediency of the work. It is a direction to proceed immediately to contract, but how? It does not assume to direct the manner of contracting, nor indicate the person with whom the contract shall be made, and hence the reasonable construction is, that the contract was intended to be made in compliance with the existing laws, and not arbitrarily, on such terms and with such person as the commissioner might choose.

But, however this may be, it is clear that the contract was not made in conformity with the authority given by the provision of the act of 1870, above quoted.

That provision only gave authority to contract for the regulating and grading of the street. The power assumed under it, was not only to contract for the regulating and grading, but also for setting the curb and gutter stones, and flagging the sidewalk, an addition which the bills in the case show, added many thousand dollars to the price to be paid. The authority conferred was not pursued; hence, the contract must be deemed to be subject to the general law, and, within the authorities, is invalid, unless cured by the certificate of the contract commissioners.

The plaintiff proved and read in evidence, a certificate of the commissioners, appointed under chapter 580, of the Laws of 1872, indorsed on said contract. The first section of that chapter declares that no contract or agreement made or entered into within five years last past, by any department or officer,” of the kind mentioned therein, “ shall be held regular, sufficient or valid,” when any of the several defects, specified in the act, exist, “ unless the commissioners hereinafter appointed, or a majority of them, shall certify, in writing, upon the contract or agreement, that they are satisfied that no fraud has been perpetrated in relation thereto, or in the performance thereof, but such contracts and agreements are hereby ratified and confirmed and declared to be valid and binding in each and every case in which such commissioners, or a majority of them, shall certify as hereinbefore provided.” The omissions and defects in the manner of making the contract in this case, and the want of authority of the officer to make the same, are of the kind which the statute declares may be cured by the prescribed certificate, but which it also declares shall be fatal, unless the certificate be obtained. The certificate of the commissioners was made on the 5th day of August, 1872. It appears that, at that time, the work under the contract was about four-fifths done. The certificate certified that the commissioners “ are satisfied that there has not been a/ny frcmd in relation to the making or entering into the contract.” The statute requires that the commissioners certify on the contract “ that they are satisfied that no frcmd has been perpetrated in relation thereto or in the performance thereofP

The certificate given, fails to comply with the statute in two particulars.

First. It does not certify that the commissioners are satisfied that no fraud 7ms been perpetrated in relation to the contract, but limits their consideration of the question of fraud, to “ the making or entering into the contractP

It is not difficult to conceive that fraud may have been perpetrated “ in relation to the contract,” which may properly be said not to be “ fraud in relation to the making or entering into the contract.” The one certificate is broader and more comprehensive than the other, and it is the broader one which the statute requires.

Second. The certificate does not certify that the commissioners are satisfied that no fraud has been perpetrated in the performance of the conti'act. It is urged that this requirement relates only to contracts that have been wholly performed, while this contract had been but about four-fifths performed. This distinction .does not seem to be sound. Whatever had been done under the contract,was clearly done “ in performance ” of it; and to hold that, because the contract had not been fully completed, therefore the question, whether fraud had been perpetrated in doing four-fifths of the work under it, was not to be investigated by the commissioners, is to give a narrow and very stringent operation to the act. On the contrary, the purpose was to require an investigation which should determine, before an invalid contract should become valid by force of the statute, that there had been no fraud in relation thereto, and none in the performance of it, whether complete or incomplete. The learned justice was, therefore, correct in ruling that the contract was not obligatory upon the defendants.

But it is insisted that the act of the legislature, passed 20th January, 1871, has ratified and made valid the contract in question. That act authorizes and directs the board of assessors, to assess upon the property benefited, in the manner provided by law, the expense which has been or shall be actually incurred by the mayor, etc., in regulating, grading and setting curb and gutter stones, and flagging sidewalks in Tenth avenue, from Manhattan street to One Hundred and Fifty-fifth street.. It might, perhaps, be answered to this position, that since the contract made by the commissioner of public works, was and is void, no expense under it has been incurred by the city; but a better answer is found in the fact that no reference is made to any contract, and no intent is manifest in the laws, to deprive the city of any defense existing against any contract. The provision is equally applicable to any expense that may have been incurred for the purpose named, independently of plaintiff’s contract. Besides, it appears that a very considerable amount has. been paid by the officers of the corporation for work doné by plaintiff, and it may well be said that the intention was to enable an assessment and collection of such moneys without affecting, in any wise, the validity of the contract itself. It often occurs that the legislature authorizes assessments to indemnify towns and counties for moneys expended or incurred; but it has probably not been held, that by so doing, it conclusively establishes a liability, on the part of the town or county, which before had no legal existence, by making valid an unlawful contract.

The judgment appealed from should be affirmed.

Daniels and Donohue, JJ., concurred.

Judgment affirmed.

       Chap. 308, p. 702.

       Brady v. The Mayor, etc., 2 Bos., 173, affirmed by Court of Appeals, 20 N. Y., 312; McSpedon v. Stout, 4 Abb., 22; McSpedon v. The Mayor, 7 Bos., 601; Peterson v. The Mayor, 17 N. Y., 449 ; Bliss v. Matteson, 52 Barb., 335.

       Chapter 383, Session Laws of 1870, p. 884.

       Chap. 5, Laws of 1871, p. 4.


text:
    JAMES E. McVEANY, Plaintiff, v. THE MAYOR, Etc., OF THE CITY OF NEW YORK, Defendant.

      Salary—payment by city to person in possession of the office—right of the board of aldermen to judge of the election of its own members.

    The plaintiff claimed to have been elected assistant alderman. The board of assistant aldermen decided in favor of his opponent, who was admitted to the board, discharged all the duties of the office and received the salary thereof; in a quo warranto, brought on the relation of plaintiff against his opponent, it was decided that plaintiff was entitled to the office; he never occupied nor performed any of the duties of the office. This suit was brought to recover the salary attached to the office for the term during which he claimed to have been elected; held., that he could not recover; that his remedy, if he had any, was against those who received the salary, or who wrongfully excluded him from the office.
    This case was tried at the circuit before a jury. The judge non-suited the plaintiff, directing that the exceptions be heard in the first instance at the General Term, and that judgment be in the meantime suspended. The plaintiff claimed that, at the charter election in 1868, he was elected assistant alderman of the ninth assistant aldermanic district.
    It was admitted by the plaintiff, that, at the election at which he claimed to have been elected, the canvassers’ certificate of election was given in favor of Peter Calkin, who took the oath of office in December, 1868, and performed and discharged the duties of assistant alderman during the year 1869.
    In January, 1869, a suit'was commenced by the Attorney-General, on the relation of the plaintiff, against Calkin, to oust him from the office, and have the plaintiff declared duly elected thereto.
    On the Yth of June, 1869, judgment was entered in this action, declaring the plaintiff to be entitled to the office.

      On the twenty-first of June, plaintiff appeared before the board of assistant aldermen and claimed his seat. The board refused to permit him to act. The term for which the plaintiff claimed to be elected, commenced January 1, 1869, and was to continue for one year.

      James Clark a/nd Drnid MeAdam for the plaintiff.
    The judgment in the quo warranto proceedings, judicially determines the plaintiff’s right to the office, and this adjudication is conclusive on the city. (Cooley’s Blackstone, vol. 3, p. 263 ; People v. Cook, 14 Barb., 259; affirmed, 4 Selden, 67; People v. Conover, 6 Abb., 220; In re Welch, 7 How., 282; Code, §§ 432, 434; Hawes v. Walker, 23 Barb., 304; Morgan v. Quackenbush, 22 Barb., 77.) That quo warranto was the proper remedy to try the plaintiff’s title to the office. (Lewis v. Oliver, 4 Abb., 121; Bowen v. Lease, 5 Hill, 221; Williams v. Potter, 2 Barb., 316 ; Mayor v. Walker, 4 E. D. Smith, 258; People v. Deming, 1 Hilt., 271; People v. Cicotte, 16 Mich., 283; People v. Holden, 28 Cal., 123; Kerr v. Trego, 47 Penn., 292.) That the salary followed the legal title, and that payment to one in possession without title constituted no defense. (People v. Smyth, 28 Cal., 21; People v. Ocelton, id., 44 ; Carroll v. Liberthaler, 37 id., 183; United States v. Addison, 6 Wall., 291; 50 Barb., 516.)

      A. J. Yamderpoel and E. Delafield Smith for the defendant.
    The plaintiff having rendered no services, could receive no salary. (Smith v. The Mayor, etc., of New York, 37 N. Y., 518; Id., 1 Daly, 219.) The action of the board of assistant aldermen was conclusive. (State v. Coms. of Railway, 4 Vroom, 112; 1 Story on Cons., § 833; Brightley on Elec., p. 654-659; Comms. v. Messer, 44 Penn. R., 341.)
   Donohue, J.:

The plaintiff claims that he was duly elected an assistant aider-man of the city of Hew York, for the period for which he claims salary, and performed, as far as he was able to do, the duties of his office.

Defendants deny the statement of plaintiff, and allege that one Peter Calkin was elected; that the plaintiff, then claiming to be elected, submitted his claim to the board of assistant aldermen, elected for that purpose; that the board of assistant aldermén decided that Calkin was elected, and rejected plaintiff’s claim. Defendants deny that they excluded plaintiff from office, and allege that the salary for the office and position claimed by plaintiff during the term, was paid to Calkin, who performed all the duties.

An offer on the trial to prove that the plaintiff received the highest number of votes, was properly rejected.

The plaintiff was allowed, under defendant’s objection, to prove a record in the case of The People, on plaintiff’s relation, against Calkin, on which he was adjudged to be entitled to the office. This record was not between the parties to this suit, and was never followed by the admission of the plaintiff to the rights claimed under it. The plaintiff never occupied or performed any of the duties of the office claimed during the term, and, within the principles of the case of Smith v. The Mayor, cannot recover, even if the question of his right to the office was settled. To hold that a party, never in the office or exercising its duties, could recover the fee or salary from a party who was no party to keeping him out of the office, would be impossible; the acts and doings of the party de facto holding the office, must bind (or will, in receiving the salary), as in other acts. The plaintiff here has his remedy against those who 'received the salary, or who wrongfully aided in keeping him out, if he has any remedy.

But if this point is not conclusive, had the court, in the record presented on the trial below, the power to hear and determine the right to the office ? By the seventh section of chapter 446, Laws of 1857, the law provides that the board shall “be the judge of the election, returns and qualifications of its own members.” Sow it is sought by the case put in evidence, to test the right of a member of the board of aldermen, or assistants, to such seat, by a proceeding between two persons, one not a member of the board and one a member, without making the board a party in any way. In the case of Calkin, after the judgment, no steps were taken by the relator to enforce the judgment or make the board a party to it by compelling, or attempting to compel, the board to admit him to a seat. That the plaintiff himself felt his'judgment of no avail, is shown by the fact that, although he was declared by that judgment entitled to the office in June, 1869, he took no steps whatever to enforce his right, and now asks that the defendants, who have paid the salary to one who performed the duties, should pay it over to him who has not. Neither of the cases cited, go the length of showing that the board could have been compelled to admit him, and when the board did not, and the charter under which they acted states that they shall be the judges of the election of their members, it would be contrary to all precedent, to hold that the city must, at its peril, pay the plaintiff, when he neither performed the duties or filled the office he asks pay for. The verdict was correct, and the judgment should be affirmed.

Judgment affirmed.

       37 N. Y., 518.


author: Westbrook, J.:

text:
    ARCHIBALD HAYS, Appellant, v. WILLIAM GOURLEY, Administrator of, etc., of Elizabeth Hays, Deceased, Respondent.

      Will—remainder — when rested.

    James Hays died in 1828, leaving a will, by which he directed his executors to turn his estate into money, invest the same, and apply the income thereof to the support and maintenance of his wife and children. Then follows the following provision: “ I will, devise and bequeath unto my said children, William, Mary and James, all my estate, both real and personal, of all kinds whatsoever, to be equally divided between them, share and share alike, upon the event of the death of their mother, my said wife.” Held, that the children took vested remainders immediately upon the death of the testator.
    Appeal from a final decree of the surrogate of the city of New York. The facts appear in the opinion.

      John P. Seeds Jr., for the appellant.

      Cassedy c& Brown, for the respondents.
   Westbrook, J.:

The question which this cause presents, is this: do the next of kin of the husband, James Hays, deceased, or of the wife, Elizabeth Hays, deceased, succeed to the estate owned by the husband at the time of his death ?

James Hays died in the city of Hew York in the year 1828, leaving a last will and testament, which was duly admitted to probate by the surrogate of Hew York, January 16th, 1829.

He left surviving him, his widow, Elizabeth Hays, and his three children, William, Mary and James.

The will directed that his executors should turn his estate into money, invest it, as in their judgment they may deem best,” the proceeds, rent, income or interest ” to be employed and used for the support and maintenance” of his said wife Elizabeth, and his children, William, Mary and James, and for the education of said children.” It next provided that each of the children on arriving at the age of twenty-one, or at the time of marriage, if such marriage was with the consent of the mother, if living, should receive the sum of $1,000.

The next clause of the will was as follows: I will, devise and bequeath unto my sand children, William, and Mary, and James, all my estate, both real a/ndpersonal, of all kinds whatsoever, to b'e equally dvoided between them, share and share alike, upon the event of the death of their mother, my said wife Elizabeth.”

The mother of the children and wife of the testator, Elizabeth Hays, outlived all the children, and departed this life in the city of Hew York in the year 1870. The children, James and Mary, died before their brother William, unmarried, without issue, and intestate. William also died intestate, without issue, leaving no widow, brother or sister. The appellant is the brother of the testator, James Hays, and claims the property as his next of kin. The respondent is the administrator of Elizabeth Hays, deceased, and claims it for the benefit of her estate.

The executors of the will of James Hays, deceased, are all dead. One John Adams was appointed administrator, with the will annexed, of said James Hays, deceased, and applied for a final settlement of his accounts. Pending such accounting, he also died, and his executor (Allen H. Adams) continued the accounting.

Upon such accounting, the executors of Elizabeth Hays, deceased, insisted, that, under the statute of distributions, the mother of the deceased children took all the property as their next of kin. On the other hand, the appellant claimed that the estate of James Hays, deceased, never vested in the children at all; that the title thereto was in the executor of the will of James Hays, deceased, and that, consequently, nothing whatever passed to the mother, but that the whole estate descended to him as the next of kin to the father. The surrogate took the former view, and the brother of the father brings this appeal. As the whole estate was to be turned into money, the will is of course to be construed as a will of personal property.

The only question to be disposed of, is this: Did the estate vest in the children, by the terms of the will, immediately upon the death of the testator ? If it did, the decision of the surrogate was right.

In Everitt v. Everitt, Denio, Ch. J., thus states the rule which governs this case: The leading inquiry upon which the question of vesting or not vesting turns, is whether the gift is immediate, and the time of payment or of enjoyment only postponed, or is future and contingent, depending upon the beneficiary arriving of age, or surviving some other person, or the like.”

The clause of the will quoted supra, expressly wills, devises and bequeaths all his estate, both real and personal, to the children, and only postpones the division of the property upon the event of the death of their mother.” “ The gift,” to use the language of Judge Denio, “ is immediate, and the time of payment or of enjoyment only is postponed.”

It follows that the decree of the surrogate was right, and should be affirmed, with costs of appeal to be paid by appellant.

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

Judgment affirmed, with costs to be paid by appellant.

       29 N. Y., on p. 75.


text:
    APOLLONIE MUNDORFF, Respondent, v. JACOB MUNDORFF, as Administrator of John Mundorff, Deceased, and others, Appellants.

      Interlocutory decree—ref&ree—powers of— Code, § 268— motion for new trial.

    The practice which formerly prevailed in the Court of Chancery, of determining the rights of parties to suits in equity, in the first instance, upon the hearing by an interlocutory decree, and then, when necessary, referring the case to a master, to take and state the account, still continues in force.
    Ordinarily, where the whole issue is referred, it is the duty of the referee to take, state and adjust the accounts of the parties on the basis on which, by his decision, he may settle their rights.
    But where, for any reason, this is not done, and an interlocutory report only is made, by which the rights of the parties are determined, and a further hearing is directed to settle the accounts between them, the court has power to direct tha to be done before another referee.
    His report, made in this manner, sustains all the relations to the case the former interlocutory decree did, in hearings had in the Court of Chancery.
    Such decree may now be reviewed at General Term, by a motion for a new trial.
    Appeal from an order made at Special Term.
    This action was brought by the plaintiff, the widow of John Mundorff, deceased, to set aside a receipt given by her to the defendant, Jacob Mundorff, as administrator, so far as it operated as a release of her claims against the estate, on the ground of fraud; for an accounting of the estate; and for the enforcement of an ante-nuptial contract entered into by the plaintiff and the deceased.
    By an order, dated October 13th, 1871, the case was, by consent, referred to a referee, “ to hear and decide all the issues in the action, and to take any account that he may determine should be taken.”
    He made and filed his report, March, 1873, deciding the equitable rights of the parties, and then directed that an accounting should be had of the administration of the estate of John Mundorff, deceased, declining to proceed with it himself.
    On the motion of plaintiff’s attorney, an order was made at Special Term, on the 5th of April, 1873, referring the case to another referee, to take and state an account of the estate. From this order the defendants appealed.

      F. G. McDonald, for the appellant.

      Elidí F. Mall, foi*the respondent.
   Daniels, J.:

Before the adoption of the present system of practice, the rights of parties to suits in equity, were, in the first instance, determined upon the hearing. And upon that determination, where a complete disposition of the case required accounts to be settled, an interlocutory decree was entered, declaring such rights, the manner in which the accounting was to be had, and referring the case to a master, before whom it should be taken. This practice would be continued in force, even if no positive provision to' that effect had been made, as long as it cannot be held inconsistent with the changes made by the Code. The convenience of legal proceedings, requires its existence. Without it, the court, in cases of an equitable nature, would not only be bound to hear the case upon its entire merits, but, after disposing of them, to go on and take the formal accounting required for final judgment. This would not only prove to. be an intolerable burden, but it would so far embar rass the trials before the court as to be the cause of vexatious delays. For it would be impossible for courts to hear all the cases of this class, brought before the Special Term, and, in addition to that, take and state the accounts upon the basis of the conclusions arrived at, as to the merits of the controversies.

Not only does the Oode not require that this course should be pursued, but it provides, in substance, for the continuation of the previous practice upon this subject. This is done by providing for a review of the decision of the court, by a. motion for a new trial before the General Term, where the decision filed shall not authorize a final judgment, but directs further proceedings before a referee or otherwise. In terms, this provision relates to trials had before the court, without a jury. But, by section 272, it is properly applicable to the trial of the same class of cases before referees. For, by that, it is provided that the trial shall be conducted in the same manner before a referee as if it were had before the court, without a jury. Ordinarily, where the whole issue is referred, it is no doubt the duty of the referee to take, state and adjust the accounts of the parties on the basis on which, by his decision, he may settle their rights; for, as a portion of the issues, that is included within the reference provided for. But if that is, for any reason, not done, and an interlocutory rep'ort only is made, by which the rights of the parties are determined, and directing a further hearing to settle the accounts between them, there can be no reason for doubting the power of the court to direct that to be done before another referee. It would, in all such cases, be wiser to send the case back to the same referee, on account of the familiarity he must have acquired with the facts rendering the accounting necessary, and the principles which, according to his conclusions, should govern it. But that does not affect the question of the power of the court. ■ It relates simply to the manner in which, under the circumstances, it should be exercised.

The report made in that manner, sustains all the relations to the case the former interlocutory decree did, in hearings had in the Court of Chancery. And all that can be required; is, that the details of the litigation shall be completed according to its conclusions as to the rights of the parties. This can be done by a reference to a new referee, though not as easily as by continuing the case before the one first appointed. Cases must sometimes occur where no other course can be pursued—where, for instance, other acts must be performed intermediate the interlocutory decision and the taking of the accounting; or where, after the interlocutory report, the referee himself may leave the State, become insane or depart this life before the accounts can be settled in conformity to his decision. In either contingency, it would be very unjust to the parties, to hold that the case must be entirely retried again, and no necessity exists for any such ruling.

In this case, the referee reported as to the equitable rights of the parties, and then directed that an accounting should be had of the administration of the estate of John Mundorff, declining to proceed with it himself. It was the right of the parties, as well as the duty of the court, to have the case completed in this respect. And that could be done by ordering the same referee to proceed upon the basis of his report, to that end, or by committing the execution of the direction to any other competent person. The latter course was adopted. It was entirely within the discretion possessed over the case by the court, and is sustained by the decision of the General Term of the Superior Court, in the ease of Trufant v. Merrill. The order should be affirmed, with costs.

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

Order affirmed, with costs.

       1 Barb. Ch. Pr., 327.

       469 of Code.

         Code, § 268.

       37 How., 531.