Слике страница
PDF
ePub

to make improvements of special advantage to certain of the citizens at their expense. *** So far public opinion and long-continued legislative practice have sustained local taxation with great unanimity, and this is strong evidence of the true interpretation of the constitutional power of the Legislature to authorize municipal taxation of this sort." In McMasters v. Commonwealth, 3 Watts, 293, a new phase of taxation was presented in the assessment of one person's property to pay compensation awarded to another whose property had been taken for a public use under the power of eminent domain, but it was sustained as a proper application of that principle of local taxation which authorizes the assessment of property specially benefited by a local improvement of a public nature, for the purpose of defraying the expense thereof. The admitted authority of the Legislature to confer upon municipal corporations the power of assessing the cost of local improvements on properties benefited is recognized in Hammett v. Philadelphia, 15 P. F. Smith, 164, as "a species of taxation, not the taking of private property by virtue of eminent domain."

We have thus referred to these cases not for the purpose of vindicating the right of the Legislature to authorize assessments in various forms for local improvements, but to show that they are regarded as a species of taxation; that it is only on the principle of taxation that they are sustained. The cases of Northern Liberties v. Church, 1 Harris, 104; Pray v. Northern Liberties, 7 Casey, 69; and Borough of Greensburg v. Young, 3 P. F. Smith, 284, have been cited as authority for the position that assessments for local improvements are not taxes. What is said in Washington Avenue, supra, in regard to two of these cases is equally applicable to the other, viz., the court did not mean to decide that such an assessment is not taxation within the general legislative power to tax. Had it been meant to say that such an assessment is not taxation at all, it would in effect deny the power of the Legislature to authorize the assessment-a power which was affirmed in all these cases. It follows from what has been said that the claim of the city is a species of taxation for local and not State purposes, based solely on the taxing power delegated by the State,

[blocks in formation]

NEW YORK COURT OF APPEALS, SEPT. 28, 1880.
IN RE ELDREDGE.

The orders not reviewable in the Court of Appeals on the ground that they are discretionary, are those addressed to the favor of the court and to which the applicant has no absolute right, which may or may not be granted without wrong on either hand.

There is a distinction between proceedings for contempt occurring in the presence of the judge and the facts constituting which are certified by him, and cases of professional misconduct out of the presence of the court. In the former it is held that the facts embodied in the order of the judge must be taken as true, in the latter the right of review is asserted not only where there has been a want of jurisdiction, but also where the court below had decided erroneously on the testimony.

In proceedings to disbar an attorney where the charges are denied, the common-law rules of evidence apply. The accused is not to be tried upon affidavits, but is entitled to confront the witnesses and subject them to crossexamination and to invoke the well-settled rules of evidence.

An attorney in proceedings for the probate of a will, who had taken out a commission for the examination of a witness, prepared answers for such witness to the interrogatories and cross-interrogatories, furnished them to the witness who had received various sums of money from him, read a part of the answers to the commissioner and left the rest for the witness to repeat, and thus got the answers before the surrogate as honest testimony. Held, sufficient to authorize an order disbarring the attorney even though the answers were not shown to be false, and it appeared that the attorney believed them to be true.

and inasmuch as the charter of the company expressly APPEAL from an order disbarring appellant from

exempts its land from such taxation, the lien is invalid, and the plaintiff in error is entitled to judgment. If it were at all necessary, it would be an easy task to show the wisdom and propriety of exempting such property as that of the plaintiff in error from local taxation, but nothing of that kind is required. It is sufficient to know that the Legislature in creating the corporation exempted its property from such taxation. It is unnecessary to consider other minor points involved in the case stated.

Judgment reversed and set aside, and judgment is now entered on the case stated in favor of the defendant below.

NOTE. In Buffalo City Cemetery v. City of Buffalo, 46 N. Y. 506, a conclusion apparently the reverse of the above was reached by the New York Court of Appeals. Under a statute exempting the lands of cemetery associations from "all public taxes, rates and aesessments," it was held that the exemption did not apply to an assessment to defray the expense of a sidewalk constructed upon a street running alongside the lands of such an association. The court say that public taxes are exactions toward the expense of carrying on the government, but those charges laid upon property in a circumscribed locality, to effect a work of local convenience, which results in peculiar advantage to the property assessed, are not public but local and private, so far as the statute was concerned. See People v. Mayor of New York, 4 N. Y. 419; Fairfield v. Ratcliff, 20 Iowa, 398; City of Paterson v. Society, etc.,

practice as an attorney and counsellor at law. The facts appear in the opinion.

FINCH, J. The questions raised on this appeal involve the professional character of a member of the bar, and the propriety of the decision of the General Term which has suspended him from the office and the duties of an attorney for three years. While the discipline may seem light, it is yet severe, for it is the public and grave conclusion of the court, deliberately spread upon the record, that the appellant has been guilty of conduct unbecoming his profession, and deserving judicial censure. The struggle to reverse this determination and defend the reputation assailed, awakens our sympathy and demands of us patient care and consideration to prevent even a trace of injustice: while, at the same time, our duty to an honorable profession, the need of preserving unsullied that high standard of truth and purity by which alone an office of justice should be measured, demands of us a cold and deliberate scrutiny, and firmness in declaring its result. We have therefore examined minutely all the voluminous papers submitted on the argument, and considered carefully the able discussion at the bar, and the fullfand thoroughly prepared briefs of the respective counsel, desiring to omit no labor necessary to a correct conclusion.

A preliminary question needs to be considered. It is insisted that the order of the General Term is not appealable, because resting in discretion; and that when no legal question is involved, no dispute as to jurisdiction or authority, the conclusion of the Supreme

Court upon the facts is final and not subject to review. We do not so understand the authorities to which we are referred. Matter of Gale, 75 N. Y. 526; Matter of Percy, 36 id. 651; Matter of Kelly, 59 id. 595. While in one, at least, of these cases, language is used susceptible of the interpretation claimed, the fact remains that this court did review upon the merits, in at least two of the cases, the action of the Supreme Court, and consider and discuss the proofs upon which that action was founded. While the measure of punishment consequent upon a conclusion of guilt may fairly be said to be within the discretion of the immediate tribunal, the conclusion itself - the adjudication of guilt or innocence upon the facts-is not so far the subject of discretion as to be beyond review. The class of orders not reviewable for that reason are substantially those addressed to the favor of the court, to which the applicant has no absolute right, which may or may not be granted without wrong on either hand. The order in question is not of that character. The guilt or innocence of this appellant does not rest in the absolute discretion of any court. An acquittal is his right if upon the facts he is not shown to be guilty, and we cannot evade or avoid the inquiry. The cases in the Supreme Court of the United States cited as holding the contrary, we think, are misapplied. Ex parte Bradley, 7 Wall. 365; Bradley v. Fisher, 13 id. 336; Bradwell v. The State, 16 id. 130; Ex parte Robinson, 19 id. 511; Ex parte Burr, 9 Wheat. 530. A plain line of distinction is drawn between proceedings for a contempt occurring in the presence of the judge and the facts constituting which are certified by him, and cases of professional misconduct out of the immediate presence of the court, where the actual truth is matter of evidence. In the former class of cases it is held that the facts embodied in the order of the judge must be taken as true; in the latter the right of review is asserted, not only where there had been want of jurisdiction, but also where the court below "had decided erroneously on the testimony." Its discretion is pronounced not unlimited; it must be a "sound discretion; " and while not to be overruled in cases of doubt, is yet the subject of review.

As we approach the facts of the case at bar another preliminary question is to be considered, raised this time on behalf of the appellant. He insists that the affidavits and papers upon which was founded the order to show cause, and which were transmitted to the referee appointed to determine the issues raised, were not evidence upon those issues, and could have no other proper office or effect than that of pleadings or statements of the charges or accusations relied upon. In reply the broad doctrine is asserted that these affidavits were evidence; that the common-law rules did not apply to the proceeding; that every thing was admissible, and its effect only the subject of consideration. The language of a previous decision of this court, that "the common-law rules of evidence do not apply to proceedings of this character" was pressed upon our attention. In re Percy, 36 N. Y. 651. The doctrine in that case was correct to the extent of its application. It related only to the kind and character of evidence presented to the court for the purpose of originating its action. For that purpose affidavits were properly held sufficient, and also the verified minutes of a trial at the Circuit. And it was only with reference to this preliminary step- the evidence necessary to justify action by the court- that the language cited was used. The opinion in that case goes on to declare that "the court may and ought to cause the charges to be preferred, whenever satisfied, from what has occurred in its presence, or from any satisfactory proof, that a case exists where the public good and ends of justice call for it. Upon the return of the order the court proceeded properly to investigate the charges." The decision, therefore, falls very far short

[ocr errors]

of holding that upon the trial of issues involving professional misconduct and the right of an attorney to retain his office and its privileges, the common-law rules of evidence may be disregarded. We should be slow to follow such an authority if it existed. The issue is vital to the party assailed. An adverse decision dooms him always to disgrace, and often to poverty and want. His professional life is full of adversaries. Always in front of him there is an antagonist -sometimes angry and occasionally bitter and venomous. His duties are delicate and responsible, and easily subject to misconstruction. To say that when he denies the charges brought against him he may be tried without the rights and the safeguards which belong to the humblest criminal, would be to adopt a dangerous rule, and one without reason or justification. The question is important, and it is best that we decide it. On the application addressed in the first instance to the court as the mode of arousing its attention and setting it in motion, affidavits, minutes of testimony-any thing which furnishes needful information — may be used as the basis upon which to found an order to show cause. Upon the return of that order the accused is heard. He may confess; he may explain; he may deny. If he confess, the court may at once render its judgment; if he explain, the court may deem the explanation sufficient or the reverse; but if he meets the accusation with denial, the issue thus raised is to be tried, summarily, it is true, by the court itself or by a referee, but nevertheless to be tried, and on that trial the accused is not to be buried under affidavits or swamped with hearsay, but is entitled to confront the witnesses, to subject them to cross-examination and to invoke the protection of wise and settled rules of evidence. In adopting this conclusion we only secure to the members of the bar the common rights and ordinary privileges of the citizen.

It remains to consider whether the evidence adduced before the referee justified the decision which suspended this appellant from the practice of his profession. A portion of the charges against him were very grave. They were nothing less than perjury and subornation of perjury. A will of his wife's father had practically disinherited her; no fault or misconduct of hers explained or palliated the act, and it could only be accounted for by the testator's anger against her husband, or the persistent and paramount influence of the other children and those connected with them. On this latter ground the appellant, in the name of his wife, and acting at first as her proctor and all the time as her counsel, resisted the probate of the will. Upon the hearing he introduced in evidence the testimony of three witnesses- Andies, Wheeler and Mason- taken out of the State and by commission. The answers they gave were very minute in their details and unusually long and full, and tending to show undue influence operating upon the mind of the testator and producing the result accomplished by the will. At the conclusion of the hearing probate was refused by the surrogate. In his opinion, he gives very slight weight to the evidence taken by commission, and rests his conclusion mainly upon the other evidence in the case. Not long after, the defeated parties opened a new attack. They presented to the surrogate a mass of affidavits, which in their printed form make a book of 285 pages, tending to show that the evidence taken on commission was false and a fraud upon the surrogate, and that the husband and proctor of the contestant was the author and contriver of the wrong. Upon these affidavits the surrogate made an order on the 11th of March, requiring the contestants to show cause before him, on the 29th of March, why the decree rejecting the will should not be opened and vacated, and the evidence taken on commission stricken out and expunged, on the ground that it was procured by fraud, perjury and subornation of perjury.El

dridge and his wife seem to have been stunned by the suddenness and magnitude of the attack, which was largely based upon affidavits of Andies and Wheeler, confessing with shameless effrontery their own perjury and wickedness, and pointing to Eldridge as the active cause, and upon circumstances tending to show that the witness Mason was a myth, and was personified before the commissioner by one Byrnes. A settlement of the controversy over the will followed, apparently arranged by counsel, in which Eldridge took no part, except that of silence, through which the decree rejecting the will was vacated without opposition, the evidence taken on commission stricken from the record, the will admitted to probate, and soon after a provision made for the contestant in excess of the testator's bequest, and to some extent recognizing her equitable claims. This peaceful settlement, however, was soon followed by the presentation of the affidavits and papers used before the surrogate to the General Term, which, after notice to Eldridge and consideration of his answer denying the charges, sent the case to a referee. The latter held, and the majority of the General Term concur, that the charges of perjury and subornation of perjury, and that of imposing a false witness as being Peter Mason upon the commissioner, were not established. That conclusion it is not necessary to disturb. But the referee finds, and the General Term concur, that, in respect to the deposition of Wheeler, the conduct of the appellant was such as justly to deserve the censure and discipline of the court. The facts in this respect do not depend upon affidavits, or evidence of a character open to criticism. They rest mainly upon the admissions of Eldridge himself. Regarding the affidavits presented to the court substantially as a pleading, they nevertheless constituted an accusation which called upon Eldridge for an answer. Upon the admissions of that answer the case against him stands. Wheeler alleges in his affidavit that Eldridge wrote out in detail answers to be given by the witness to the interrogatories and crossinterrogatories of the commission; that when the deposition was taken Eldridge was personally present and himself read to the commissioner the answers he had prepared, and then left with the witness, written out in full, the answers to the cross-interrogatories, which the latter read from the memorandum to the commissioner. Wheeler further charges that his testimony was both preceded and followed by payments of money by Eldridge, and produces his letters suggesting a destruction of their correspondence, and begging for a return of the memoranda used at the taking of the deposition. Such original memoranda, alleged to be in the handwriting of copyists employed by Eldridge, were attached to Wheeler's affidavit. In his answer Eldridge admits that he furnished the memoranda for the deposition. He does not deny the authenticity of the prepared answers produced by Wheeler. He admits, and to some extent palliates and excuses the payments of money. He does not dispute the correspondence produced. He does not deny reading the answers for Wheeler to the commissioner in Philadelphia, and leaving those framed for the cross-interrogatories to be read by the witness. His explanations of these things do not satisfy us. The memorandum made by Eldridge and produced by Wheeler, of answers to cross-interrogatories is a very long and carefully prepared document. It occupies in print about eighteen compact pages. On comparing it with the deposition read before the surrogate, it is found to be absolutely identical. Laying aside then all questions of the truth or falsity of the answers, discarding every thing dependent upon Wheeler alone as unworthy of credit, the fact yet remains that an

attorney of the court having taken out a commission

for the examination of a witness, writes out what when printed are twenty-six pages of answers to inter

rogatories, and eighteen pages of answers to crossinterrogatories, furnishes them to the witness who has already drawn upon him for various sums of money, reads a part of the answers to the commissioner, and leaves the rest for the witness to repeat, and so practically puts his own words, his own ideas, his own facts, into Wheeler's mouth, and gets them before the surrogate disguised as honest testimony. Such conduct is inexcusable. The coloring sought to be given it by Eldridge that he merely meant to refresh the memory of the witness is not justified by the facts. He furnished answers, not notes. He controlled and mastered the memory of the witness; not merely refreshed it. The witness did not answer at all. Eldridge answered for him. We get neither the language nor the memory of the witness; we get only that of his teacher. Practically the examination was merely an affidavit drawn by Eldridge and sworn to by Wheeler. In its true character it was not admissible before the surrogate. When, therefore, it was disguised in the shape of testimony and the form of an examination, and so received into the case, a fraud was committed on the surrogate, and the author of it was Eldridge. Grant that the answers are not shown to be false, and that Eldridge believed them to be true; yet he corrupts justice at the fountain by dictating the evidence of the witness. Upon the trial of an issue in open court a question merely leading is excluded. The law so carefully guards the independent and unwarped testimony of a witness that it will not permit, even by the form of a question, the suggestion of its answer. Yet here the answers to thirty-three direct interrogatories and forty-one cross-interrogatories are actually written out by the attorney for the use of the witness, and so imported into the case.

It is intimated on his behalf that he did not go beyond the custom of the bar. He may have thought so, but is most certainly mistaken. If that were true, it would only make our duty all the more imperative. While a discreet and prudent attorney may very properly ascertain from witnesses in advance of the trial what they in fact do know, and the extent and limitations of their memory, as a guide to his own examinations, he has no right, legal or moral, to go further. His duty is to extract the facts from the witness, not to pour them into him; to learn what the witness does know, not to teach him what he ought to know. It is impossible, too, in this case, not to feel the force of other admitted facts. The payments of money by Eldridge to Wheeler, if not bribes, approach seriously near to the line. He himself repudiating such purpose, seems fearful of that construction. His anxiety to get back his memoranda, and to have his correspondence destroyed, indicate his own inner consciousness of conduct open to suspicion. It is impossible not to feel sympathy for him in his struggle, and yet our plain duty is to shrink from no conclusion which the purity and integrity of the profession demands.

The order of the General Term should be affirmed.

WHO ARE SECOND COUSINS? ENGLISH HIGH COURT OF JUSTICE, CHANCERY DIVISION, JUNE 14, 1880.

RE PARKER; BENTHAM V. WILSON, 43 L. T. Rep. (N. S.) 115.

A testator gave one-third of his residuary personal estate to his first cousins, and two-thirds to his second cousins. Held, that by "second cousins" was meant the collateral descendants from a common great-grandfather, and did not include first cousins once removed. HIS was an action for the administration of the

estate of John Parker, deceased, who died on the 13th Feb. 1878, having made his will dated the 28th

Jan. 1878, whereby he gave his residuary personal estate, one-third to my first cousins and two-thirds to my second cousins." The only question raised was whether "second cousins" meant second cousins strictly so called, or whether it also included children of first cousins, or as they are commonly called, first cousins once removed.

JESSEL, M. R. The question I have to decide is, what is the meaning of "second cousins" in this will? "First cousins" clearly means cousins german, both in ordinary parlance and according to the authorities. So, too, the term "second cousins" has a well-known meaning, as signifying collateral descendants from a common great-grandfather. No doubt as to the meaning has been suggested, but it is said that I am bound to alter that meaning because of certain decisions. Now, unless those decisions lay down some principle, they do not bind me, and accordingly it is said that the principle they establish is this-that a gift to "second cousins " is a gift to all persons related within that degree. Has it been so laid down? The first case is Mayott v. Mayott, 2 B. C. C. 125, which I am bound to say succeeding judges have misunderstood. That case is stated much more fully in the note in the last edition, and it there appears that the same persons, and no others, must have been living at the date of the will and the death of the testator, and therefore that at the date of the will he had no second cousins. It was evident he was referring to some persons whom he knew, and consequently it was necessary to hold that he used the term "second cousins" in other than its strict sense. The decision accordingly was, that he meant persons within the same degree of relationship, so that even his grandniece was included. With all respect, I should not have let in the grandniece, but in other respects I see no objection to the decision. Nothing is better settled than this, that where there is no person or property answering the description, the court looks to see whether there is not some one or something that may be within it. That is all that case really decided. The next case is Silcox v. Bell, 1 Sim. & S. 301. The report does not state what relations the testator left; it is evident that the decree did not follow the words of the will, but we cannot see now why the direction was framed as it was. If, however, you look at Mr. Sugden's argument, you will see that Mayott v. Mayott is altogether misdescribed by him, and yet the Vice-Chancellor in his judgment follows that argument. So here we have a case, in my opinion, entirely wrong, where the Vice-Chancellor was clearly misled by counsel - a counsel, no doubt, of great influence and eminence - as to the effect of Mayott v. Mayott. The next case of Charge v. Goodyer, 3 Russ. 140, is an illustration of the danger of following authorities without looking at them. There the gift was to first and second cousins, and the report says: "It was admitted that the bequest to first and second cousins, had it stood unmodified by any circumstance or expression, would have included all persons of the degree of second cousins; that is, first cousins once removed and first cousins twice removed." The cases of Mayott v. Mayott and Silcox v. Bell are then referred to, and throughout this is spoken of as the legal construction of the gift, and in his judgment the Master of the Rolls gives no decision as to whether that was the legal construction, although, with all respect, it seems to me that that was the point before him. Those are the cases supposed to establish the proposition that a gift to second cousins is a gift to all within the degree of second cousin. But there is a good deal of authority the other way. There is the case of Corporation of Bridgnorth v. Collins, 15 Sim. 541, in which Shadwell, V. C., held that second cousins meant second cousins and nothing else. There are two cases decided by Lord Chancellors. The one, Sanderson v, Bayley, 4 My. &

Cr. 56, decided two things, first, that cousin means cousin german; and secondly, that first cousin once removed does not mean second cousin. In the other, Stoddart v. Nelson, 6 De G. M. & G. 68, the question was, whether cousin did not mean first cousin once removed and second cousin, and the Lord Chancellor, in deciding in favor of the first cousins simpliciter, uses words which evidently refer to what, as I have pointed out, occurred in Mayott v. Mayott. When you look at the case, the most that can be said against it is, that the Lord Chancellor does not appear to have noticed that in the case before Lord Kenyon there was no person to answer the one description. As regards the case of Re Blower's Trusts, L. R., 6 Ch. 351, I have only to remark, that it shows that modern judges are coming to this principle-that in questions of construction you are not to alter the well-defined legal meaning of words, unless there are circumstances in the nature of the gift, or by way of context, to show that the testator intended a different meaning, including in such circumstances the state of affairs at the date of the will,

[blocks in formation]

INFORMALITIES IN BOND OFSURROGATE MAY COMPEL ACCOUNTING AND DISTRIBUTION AFTER REMOVAL.

(1) The statutes (2 R. S. 77, § 42) do not prescribe the tenor (Doug. 193; 7 Exch. 537) of the condition of the bond to be given by an administrator; they prescribe the substance. A bond given by an administrator to whom letters were issued by the surrogate of Steuben county, named the surrogate of Ontario county as one whose orders the principal was to obey, but contained a clause that he should faithfully execute the trust reposed in him as administrator, and another that he should obey all orders of any other officer or court having jurisdiction in the premises, touching the administration of the estate committed to him. Held, sufficient to render the sureties liable in case of failure of the principal to pay moneys ordered to be paid by the surrogate of Steuben county. In such bonds the substance is looked to more than the form, even though it is a surety to be held. Wiser v. Blachly, 1 Johus. Ch. 607. See, also, Ring v. Gibbs, 26 Wend. 502; Casori v. Jerome, 58 N. Y. 315. (2) Upon an order made upon the application of one of the next of kin, a final accounting was had, the administrator rendered his accounts, and the surrogate found and decreed that there was due and payable to the person next of kin named, a sum specified as her distributive share of the intestate estate and the administrator was ordered to pay it to her. But it appeared that before the proceedings for accounting were instituted, the letters of the administrator had been revoked. No one had been appointed in his place, and the moneys in question had come into his hands as administrator. Held, that the surrogate had power to decree a distribution of the moneys in the administrator's hands to the next of kin. This he would have under the provisions of Laws of 1837, chapter 460, and without this act, under 2 R. S. 92, § 52. The statutes in general terms give to the surrogate the authority to cite an administrator to an account after the lapse of eighteen months from his appointment, and the section (§ 52) does not mean to confine the power so that it may not be exercised save against one who is actually in the office of an administrator. See Dakin v. Deming, 6 Pai. 95; Everts v. Everts, 62 Barb. 577; Annett v. Kerr, 2 Robt. 556. The order of distribution made by the surrogate bound the administrator and the sureties upon his bond. Schofield v. Churchill, 72 N. Y. 565. Order affirmed. Gerould v. Wilson, appellant, et al. Opinion by Folger, C. J. [Decided Sept. 21, 1880.]

-

NEW YORK CITY-REMOVAL OF OFFICER MUST BE FOR CAUSE-SUPERVISING ENGINEER-NOT ANSWERABLE FOR NEGLIGENCE OF SUBORDINATES-REVIEW OF REMOVAL. (1) The relator was, under the city charter, the engineer having supervision of public work done upon the streets for the city of New York. An arch constructed while relator was in such position, upon a street in that city, fell in consequence of bad workmanship and materials. The workmen employed in building that arch were not appointed by relator; and inspectors were appointed by the commissioner of public works, who directed the work, which inspectors were required to inspect, the material to be furnished and the work done under the agreement, and to see that the same corresponded with the specifications, and to report to the commissioner himself and to the superintendent of street improvements. In consequence of the fall of the arch the commissioner, who had authority under the charter for such purpose, removed the relator from his position. In proceedings to review such removal, held, that relator could only be removed for cause. People v. Fire Commissioners, 72 N. Y. 445; Sims v. Fire Commissioners, 73 id. 437. The protection given by the charter to his tenure of office this court has held to be substantial and effective, and not merely shadowy or formal. The commissioner had a right to call on relator for an explanation, and prima facie it was relator's duty to have discovered and prevented the defect in the arch causing its fall. The supervising engineer, if he controls the appointment of the workmen under him, is responsible for their skill and fidelity. But he is not so responsible where he has no power of appointment. Kelly v. Mayor of New York, 11 N. Y. 432; Pack v. Mayor of New York, 8 id. 222. In such case he is guilty of no negligence. The unwise and improper appointment is not his, and every rule of justice would be violated by imputing to him the negligence of an agent, whom he did not select and could not remove. And here the provision made for inspecting imposed upon others the duty of supervision. While the work progressed, relator had a right to assume that the inspectors appointed by his chief were doing their duty, and that they were guarding against weak construction and poor material. He had a right to leave this duty where the commissioner had placed it, and to assume that his own skill and care were to be exercised in other directions. He was not, therefore, at fault for the defect in the arch, and there was no cause for his removal. (2) The rule that this court will not review the decision of such a commissioner on the merits (People v. Board of Police, 69 N. Y. 409) explained: "Where there is any evidence before the officer from which an inference of incapacity or unfitness could be drawn, we are not to reverse the decision, because our own conclusions would perhaps have been different. But there must be some evidence to justify the removal. If there is none, the removal is not for cause, aud the statute is violated." Order reversed. People ex rel. Campbell, appellant, v. Campbell. Opinion by Finch, J.; Rapallo, Andrews and Earl, JJ., concurred; Folger, C. J., Miller and Danforth, JJ., dissented. [Decided Oct. 5, 1880.]

SET-OFF- -IN ACTION AGAINST CITY THAT PRELIMINARY STEPS MUST PRECEDE ACTION DOES NOT PRECLUDE SET-OFF-CLAIM AGAINST COUNTY NOT ACTIONABLE SUBJECT OF.—(1) The statute provides that no action shall be maintained against the city of New York unless the claim on which it is brought has been presented to the comptroller and he has neglected, for thirty days thereafter, to pay the same. One holding a claim for services against the city which had not been presented to the comptroller assigned the same to plaintiff. Held, that in an action upon the same by plaintiff, the city might set off an indebtedness due

from the assignor to the city at the time of the assignment. Although the general rule is that to compel a set off of two demands, there must be a mutual right of action upon them at the same time (Myers v. Davis, 22 N. Y. 489), yet the circumstance that one party is required to take some preliminary step before instituting his action does not affect the right of set-off. Reviewing Patterson v. Patterson, 59 N. Y. 579; Jordan v. National Bk., 74 id. 467; McDowell v. Tate, 1 Dev. 249; Frances v. Dodworth, 4 C. B. 202. An English court held that a debt might be set off though because of an especial statute an action could not then be maintained upon it. Brown v. Tibbetts, 11 C. B. (N. S.) 855. It is the condition or state of the demand at the time that is looked at. Wells v. Stewart, 3 Barb. 40; Martin v. Kunzmuller, 37 N. Y. 396, 401; see 5 Edm. St. 574; note to 2 R. S. 354, § 18, subd. 5, citing 6 Cow. 615, and 5 Johns. 105; 3 id. 150; Pomeroy on Remedies, § 452, etc. An infant cannot maintain an action on a demand unless he first procures a guardian ad litem appointed, but could set off that demand against a suit by the assignee of a claim held by his debtor. Whitmarsh v. Hall, 3 Den. 375, does not conflict with this. In the case at bar the creditor had at common law the same right to maintain his action against the city as against any other debtor. By statute this right is abridged, and such a statute is construed strictly, and as this statute does not in terms include the case of set-off, that right is not taken away. Under an English law an attorney cannot maintain an action for costs against his client until thirty days after he has presented his bill, but this has been held not to deprive him of a right of set-off for costs in an action against him by his client where he had not presented his bill. Martin v. Winder, Douglass, 199, n. x63; Bullard v. Birket, 1 Esp. Cas. 449. See Lester v. Lazarus, 2 Cr. M. & Ros. 665; Downer v. Eggleston, 15 Wend. 51. (2) By the statute an action against the county of New York is not maintainable upon a county charge, a contingent expense of the county. Plaintiff's assignor held a claim against the county which was such a charge; the county held at the same time a claim against the assignor that was due. Held, that the two claims were the subject of set-off. The principle that a demand against a State cannot be set off by its citizens against a demand of the State does not apply. The reason for such a principle is that a State cannot be coerced in its own courts. State v. Blank, 1 Hayes, 223; State v. Balt. & Ohio R. Co., 34 Md. 374, which reason does not apply to counties. The county is exempted from liability to action by the statute, an abridgment of a common-law right to be strictly construed. The courts may compel a county, by mandamus, to pass upon and allow a legal claim. People v. Supervisors, etc., 45 N. Y. 199. And a mandamus proceeding is a suit within the meaning of the Federal Constitution. Weston v. City of Charleston, 2 Pet. 449; Holmes v. Jennesou, 15 id. 564. Judgment affirmed. Taylor et al., appellants, v. Mayor, etc., of New York. Opinion by Folger, C. J. [Decided Sept. 21, 1880.]

MASSACHUSETTS SUPREME JUDICIAL
COURT ABSTRACT.
SEPTEMBER, 1880.

CONFLICT OF LAW-ATTACHMENT VALID AGAINST PREVIOUS ASSIGNMENT FOR CREDITORS IN ANOTHER STATE. A debtor in Rhode Island made an assignment for the benefit of creditors, valid under the laws of that State. The assignee came into Massachusetts and took possession of personal property there belonging to the debtor. Before this property was removed from Massachusetts it was attached by D., a creditor

« ПретходнаНастави »