IN ASSEMBLY,

February 4, 1834.

REPORT

Of the minority of the committee on the petition of Enos Stone.

Mr. Sumner, from the minority of the committee to whom was referred the petition of Enos Stone,

REPORTED:

The petitioner alleges that on or about the month of July, 1824, Cornelius A. Van Slyck, of Rochester, was appointed by the Canal Commissioners collector of tolls, on the Erie canal, at Rochester aforesaid: that the amount of tolls collected from that time to the close of the navigating season was $26,374.14, which was paid, with the exception of $367.62, being the amount of errors charged by the Comptroller to have been committed by the said Van Slyck, in his returns: that the said Van Slyck was re-appointed to the said office of collector, in the month of June, 1825, and the petitioner, together with other persons, executed a bond, as sureties for the said Van Slyck, bearing date the first of June, of that year, and approved according to law, by Ashley Sampson, Esq., the first judge of the county of Monroe, on the twenty-fifth of the said month of June: that it appears, from the returns of the said collector, that he collected, in the months of March, April and May, $22,525.01; and that he paid to the Comptroller, on the thirtieth day of May, the sum of $9,936.33, and that he made no further payments until the 22d day of July, in the year last mentioned, and subsequent thereto: that it appears hence that the said collector was, at the time of his appointment in 1825, a defaulter to the amount of several thousand dollars, of which the petitioner alleges he was wholly ignorant, at the time of executing the aforesaid bond: that it also appears, from the amount of payments made by [Assem. No. 121.]

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the said Van Slyck, that he paid to the Comptroller about the same amount of moneys that accrued during the petitioner's bailship. It appears, from the bank book, kept by the bank at Rochester in the spring of 1825, which has been exhibited to your committee, that the said collector had been in the habit of depositing the moneys collected for tolls in the said bank, but that during the whole of the month of April of that year he did not so deposit one dollar, and that the collections for said month amounted to more than $9,000: that the deposites made in said bank during the month of May, and up to the first day of June, amounted to about the same sum that was then due, for the collections made in April.

The petitioner alleges that the amount of tolls collected by the said collector, during the month of June and a part of the month of July, was applied in payment of the balance due by him, for tolls collected prior to the first day of June aforesaid, by reason whereof the said collector was made delinquent, during the petitioner's bailship, $11,316.31, for which the petitioner, and his cosureties, have been prosecuted in the supreme court upon the aforesaid bond, and a verdict recovered against them for the sum of $16,542.24, besides costs, subject to a bill of exceptions taken to the charge of the circuit judge upon the trial: that in the said verdict is included the sum of $1,000, with interest from the 18th day of April, in the year 1826, being the amount of a promissory note, drawn by Elisha Ely to Harvey Ely and said Van Slyck, and endorsed by the said Harvey Ely and Van Slyck, payable at the New-York State bank, and delivered by them to one of the Canal Commissioners, by whom the said note was delivered to the Comptroller, who deposited the same in said bank for collection: that the said Messrs. Elys were, at the time said note became due, perfectly solvent and able to pay the same, had they been prosecuted therefor; but by reason of the omission to give notice to the endorsers, and to prosecute the same, the amount of the said note has been lost, on account of the subsequent insolvency of the said Elisha Ely, the drawer of the note: that the said action, on the aforesaid bond, has been twice tried, and that the verdict obtained on the first trial was set aside by the supreme court, and a new trial granted in the January term of 1832; 8th Wendell's Reports, 403: that at the time of the last trial the petitioner was prevented from attending by sickness, and that the said trial was brought on in the absence of his witnesses, by whom he could have proved that the said Van Slyck, in the spring of 1825, expended large sums of money in building canal boats, purchasing horses, and in fitting the said boats for navigation; and that the said Van Slyck had no funds other than those arising from the collection of tolls: that the petitioner is the only one of the sureties in the aforesaid bond who is solvent; and that he has been at very great expense in defending the said action, which was for a long time pending in the said supreme court: that the said Van Slyck is utterly insolvent, and if he shall be constrained to pay the money, for which the verdict has been obtained against him and his co-sureties, it will reduce him to absolute poverty in his old age: that when he executed the said bond he verily believed that the Canal Commissioners would not have re-appointed the said collector unless he had fully acounted for the tolls which had previously been collected by him; and that all the moneys which should be collected and paid in by the said Van Slyck, during the time of the petitioner's bailship, would be credited to him on occount of the surety bond given by the petitioner and his co-sureties.

It appears by the evidence detailed in the cause, in 8th Wendell's Reports, 403, that on the 22d July, after the petitioner became bail, the sum of $12,511.54 was remitted by the said collector. This sum the petitioner claims should be passed to his credit, but the court decided otherwise, for the reason, among others, that Van Slyck intended this sum to apply to reduce the tolls of the month of May: that this sum of money was collected in June and a part of July, is alleged by the petitioner, and it seems probable that such was the fact, because on the 30th of May the collector remitted the tolls for April, and it can scarcely be supposed that this sum of money was remaining during the month of June, and up to the time of the remittance in July. According to regulations existing at the time, as your committee are informed, it was the duty of the collector to make his returns, and remit the money which had been collected, at the close of each month; and he was at all events to do it within thirty days after the month ended. It is also reasonable to presume that the bond was not in fact received by the Canal Commissioners until after the 25th of June, because at that time it was approved by Judge Sampson. If this be so then the collector was a defaulter when the sureties became bail, for the reason that the tolls for the month of May were due and unpaid: whether the charge was made on the Comptroller's books or not can make no difference. The Comptroller could not make the charge until he received the returns of the collector, and these returns were delayed by said collector, until he could get money to pay the balance due.

The petitioner concludes by asking the Legislature to exonerate him from the aforesaid bond; and the minority of your committee is of the opinion that, if, as alleged by the petitioner, the money collected in June and a part of July was taken on the 22d of said July to pay up the tolls of May, which, it will be observed, accrued previous to the bailship of the petitioner, that such application operated most unjustly towards the petitioner; and that he ought not to be ruined by such legal accounting; and asks leave to introduce a bill accordingly.

IN ASSEMBLY,

February 4, 1834.

REPORT

Of the judiciary committee, to whom was referred the bill entitled, "An act to amend title nine, part one, chapter twenty, of the Revised Statutes."

Mr. Phelps, from the judiciary committee, to whom was referred the bill entitled, "An act to amend title nine, part one, chapter twenty, of the Revised Statutes,"

REPORTED:

That the object of this bill appears to be the creation of an appellate jurisdiction, to revise the decisions of the commissioners of excise of every town in the State, in cases where they shall deem it inexpedient to grant a tavern license. That when it is considered that these commissioners are the supervisor and two justices of the town, in which the license is applied for, who in general are men of the most respectable standing and of good moral character, well acquainted with the necessities of the town in this particular, also with the ability and moral character of each applicant and the locality for which the license is requested, and also of the propriety or impropriety of acceding to the application, your committee are irresistibly forced to the conclusion, that the power of granting licenses, is, as at present exercised, as safely lodged and probably as judiciously exercised, as it would be under the supervision of an additional tribunal, vested with authority to reverse the decision of said commissioners. Your committee are therefore of the opinion, that it is inexpedient to recommend the adoption of the said bill, so far as relates to the erection of an appellate tribunal, but see no objection to the first section of the same, prohibiting a "supervisor or a justice of the peace, being a tavern-keeper or an applicant for a tavern license,” acting as a commissioner of excise; and would in respect thereto, recommend the passage of the first section of said bill as printed.