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Washburn a. Franklin.

The order made at general term must be amended so as to direct a new trial; costs to abide the event.

WASHBURN a. FRANKLIN.

Supreme Court, First District; Special Term, June, 1858.

PLEADING.-CONTRACTS REGULATED BY STATUTE.

In an action on a contract, the form or the making of which is regulated by statute,-e. g., a contract for the sale of stock under 1 Revised Statutes, 710,-it is not necessary to plead the circumstances of compliance with the statute relied on to take the case out of its operation.*

Whether a contract, valid at common law, but prohibited by statute, and entered into while the prohibiting statute is in force, is made valid by a repeal of that statute,-Query?

Demurrer to complaint.

The action was brought to recover damages against the defendant for not fulfilling a contract for the purchase from plaintiff of certain stock. The time of the making of the alleged agreement was prior to the passage of the act of 1858 (Laws of 1858, 251, ch. 134), repealing the statute prohibiting stock-jobbing (1 Rev. Stats., 710). The complaint did not aver that the plaintiff was, at the time of making the agreement, the owner of the stock, or in possession of it, nor that the agreement was in writing.

The defendant demurred, and specified these as the grounds of his objections to the complaint.

for the plaintiff.

Charles T. Sanford, for the defendant.-I. Even though prior to the repeal, ownership or possession, and a written agreement, would be necessary to make the contract valid, yet it was unnecessary to aver, in pleading, such facts, relied on to take the

* See the authorities on this point collected in Abbotts' Forms of Pleadings, 80, note (e), 151, note (ƒ).

Washburn a. Franklin.

case out of the statute. 1. Such was certainly the rule prior to the Code. Under the statute of Frauds, the writing was matter of evidence, not of pleading. (Miller a. Drake, 1 Cai., 45; State of Indiana a. Woram, 6 Hill, 33; Elting a. Vanderlyn, 4 Johns., 237; Cozine a. Graham, 2 Paige, 177.) 2. As to the present rule, there is some conflict in the authorities; but the better opinion would seem to be, that no change has been wrought by the requirement of the Code, that all constitutive facts must be pleaded. The essential fact is, that the agreement was made. If void, by reason of non-compliance with an exceptional statute, it was not made, for an "absolutely void" agreement is no agreement at all. The averment, therefore, that an agreement was made, presupposes and implies the existence of such facts and circumstances as are requisite to its validity. These facts must be proved to sustain the averment of an agreement, and a general denial accordingly raises the issue upon their existence as distinctly as if they were specially stated and specifically denied. The Superior Court in 1853 held that they must be averred. (Thurman a. Stevens, 2 Duer, 609; Le Roy a. Shaw, 2 Ib., 626.) The Common Pleas in 1854 held otherwise, and followed the old rule. (Stern a. Drinker, 2 E. D. Smith, 401.)

II. The repeal of the stock-jobbing act, however, renders it immaterial whether or not the vendor was in the actual possession, or was entitled in his own right, or was duly authorized to sell. (Laws of 1858, 251; Central Bank a. Empire Stone Dressing Company, Sup. Ct., First Dist., Gen. T., Nov. 27, 1857; Curtis a. Leavitt, 4 Kern.) If the fact be immaterial, it is of course unnecessary to aver it.

INGRAHAM, J.-The defendant demurs to the plaintiff's complaint, upon the ground that it does not state facts sufficient to constitute a cause of action.

The action is upon a stock contract, and the defendant's objection to the complaint is, that it does not aver that the plaintiff was the owner of the stock at the time of the sale, or that the contract was in writing.

There is no doubt the statute requires, to make the contract valid, that the party contracting to sell shall either have the certificate or be otherwise entitled to sell the same. (1 Rev. Stats., 710.)

Washburn a. Franklin.

But it never was necessary to aver such possession in the declaration before the Code, nor do I think it necessary now. The fact on which the plaintiff relies is the making of the contract. This is admitted by the demurrer. It must be a legal contract, or it is nothing, and issue upon the question whether a contract was made or not would involve its legality, and of course would include the requisite facts to make the contract a legal one.

These remarks apply to the objection that the complaint does not allege that the contract was in writing. I adhere to the opinion that it was unnecessary, as held in Stern a. Drinker (2 E. D. Smith, 401). The same rule would apply to cases under the statute of frauds. In such cases it is unnecessary to aver it. If any legal contract is made, it must be in writing. If not a legal contract, it is no contract. The evidence to prove the contract need not be set out, but only that a contract was made. The mode of making is matter of evidence.

The plaintiff suggested that this defence would now be unavailing, as the Legislature had repealed the stock-jobbing act. The statute only applies to contracts hereafter made, which are made valid by the 1st section. Whether the repeal of the statute, by the 2d section, could validate the contract, which was otherwise void, may well be doubted. In the case of contract void for usury, the Legislature have prohibited corporations from setting up the defence. Although the effect of such prohibition is virtually to render the contract effectual, still it does not go so far as to declare a void contract a valid one, and I should hesitate in giving such a construction to the repealing clause. It is unnecessary, however, here to pass upon the question.

Judgment for the plaintiff on demurrer, with leave to defendant to withdraw demurrer and answer, on payment of costs.

Handley a. The Mayor, &c., of New York.

HANDLEY a. THE MAYOR, &c., OF THE CITY OF NEW YORK.

Supreme Court, First District; Special Term, April, 1858.

INJUNCTION TO RESTRAIN OFFICIAL PROCEEDINGS.

An action cannot be maintained to declare void an assessment made by a municipal corporation, and to restrain them from enforcing it, on the ground that the proceedings are invalid, although the alleged invalidity does not appear on the face of the proceedings, so that it cannot be reached on certiorari. A complaint which states only such a case, is bad on demurrer.*

Demurrer to complaint.

J. R. Flanagan, for the plaintiff.

A. R. Lawrence, jr., for the defendants.

The complaint stated that the plaintiff was the owner of ten lots on the south side of Fifty-fifth street, in the city of New York, commencing 100 feet westerly of Eleventh avenue, and of six lots on the northerly side of said street, commencing 100 feet westerly from said avenue: that by an ordinance of the defendants, approved by the mayor, January 4, 1850, it was ordained that Fifty-fifth street, from Tenth avenue to the Hudson River, be regulated and graded under the direction of the street commissioner, and assessors were appointed to make an estimate of the expense of conforming to the provisions of said ordinance, and to make a just and equitable assessment thereof upon the owners and occupants of houses and lots intended to be benefited thereby; that the street was regulated and graded under said ordinance, and an assessment made therefor, which, on the 24th of September, 1854, was confirmed by the Common Council: that the assessment made on each of the plaintiff's lots was more than one half of the value of the said lots as estimated by the ward assessors for said year: that the assess

* As to what is the proper ground of demurrer in such case, see Wilson a. The Mayor, &c., of New York, 1 Ante, 1; and 6 Ib., 6.

Fuller a. Allen.

ment for regulating, &c., was void for that reason: that the same was an apparent lien on property of plaintiff, and a cloud upon his title that the defendants threatened, and were about to sell and expose the lots for sale for the amount of such assessment. An injunction was therefore prayed for, enjoining, &c., defendants from selling, &c., the plaintiff's lots, and it was prayed that the said assessment be cancelled.

The defendants demurred to the complaint on the ground that the court had no jurisdiction over the subject-matter of the action, and that the complaint did not state facts sufficient to constitute a cause of action.

CLERKE, J.-A court of equity will not assume jurisdiction to review the proceedings of a municipal corporation in prosecuting a local improvement, or in assessing or collecting the means to complete it, if there exists no other reason for its interposition than the alleged invalidity of the proceedings.

The common-law writ of certiorari is the appropriate remedy in cases of this nature; and it is no reason for granting the remedy prayed for in this action, that the defects, of which the plaintiff complains, in the defendants' proceedings, do not appear upon the record; that they can only be substantiated by extrinsic proof; and therefore that the objection could not be raised on a certiorari. (Mace a. The Trustees of the Village of Newburg, 15 How. Pr. R., 161.)

Judgment for defendants on demurrer, with costs.

FULLER a. ALLEN.

Supreme Court, First District; Special Term, May, 1858. LEVY. SHERIFF'S SALE-TAXES.-INJUNCTION.

The levying upon personal property of a warrant, for the collection of an unpaid tax, does not defeat a previous levy of an execution upon the same goods, by the sheriff.

A bona fide purchaser at sheriff's sale, obtains a title to such goods, free from any lien for the tax.

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