Imágenes de páginas


App. Div.)

Second Department, July, 1911. ant has failed to state in its notice of motion. There was a judginent against Tubbiolo for costs. He died. The liability to pay that judgment devolved on his estate, and if there were an interest represented by the administratrix which that judgment affects, there would be some reason for admitting her to contest it. But the affidavit of the attorney in charge is that "decedent left behind him absolutely nothing in the way of an

Hence, there is nothing to protect in that direction. But the administratrix comes in to remove a bar to an action in behalf of herself as decedent's widow. If she has a cause of action for negligence causing death, it belongs to her to be enforced by her as administratrix and is independent of and unrelated to the present action. She has been let in to prosecute this action to enable herself to maintain an action for the widow and next of kin, if any there be. So she, a stranger to this action, would contest it to help her in her own action. If the order should be reversed and a new trial granted and should be had, no verdict on her cause of action could be given, as it is not present in this action, and no verdict on the husband's cause of action could be had, as it abated by his death. Of what avail, then, the new trial? None, except to permit her to obtain an order for it and then withdraw this action. For what purpose! So that she could bring her action for the recovery of her own damages and defeat defendant's defense that has already prevailed. . That is the sole purpose. She, in the interest of herself individually, prosecutes this action which has abated by the death of the person who owned the cause of action, which did not survive to his administratrix and in which she has no interest whatsoever. The case is this: A sues for personal injuries, and judgment that defendant is not liable is rendered, entered upon the verdict of a jury. The cause of action is extinguished by the judgment, and if it were not, it dies with A. A's administratrix, without any right, title or interest in what was A's cause of action and without capacity to enforce it even if there were no judgment against him, is substituted in the action. She, owning nothing of the subject of the action, is designated to go forward with it. She can recover nothing, for the subject of recovery has ceased to exist. But there is something in reserve, viz., the alleged

Second Department, July, 1911.

[Vol. 146. damages of the widow, and so that she may clear the record of her husband's litigation and defeat and occupy the place with her own suit, she is permitted to come in. Not only is she permitted to come in, but the action is made her original action, as if she had brought it. It is sufficient cause for denial of the motion that she seeks to be a party in interest in what she has and can have no interest, and added to that seemingly is the appropriation of her defeated husband's abated action wherein to exploit her own separate claim.

The order should be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.

JENKS, P. J., CARR, WOODWARD and Rich, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.



Second Department, July 27, 1911.

Contract — municipal contract, city of New York

power of commissioner of public works to act for borough president – presumption where commissioner signs certificate of necessity.

As section 383 of the charter of the city of New York provides that the

commissioner of public works, in the absence or illness of the borough president, or upon his request, may discharge the duties of the president, a municipal contractor who, having a right to remove certain materials used in constructing sewer basins, has sold them to the city of New York at its request after a certificate of necessity for the purchase by the city had been signed by the commissioner of public works, need not prove, in order to recover the purchase price from the city, that the commissioner of public works was formally authorized to sign the

certificate instead of the borough president. As the statute gives the commissioner power to act for the president, and

as it is presumed that a public officer performs his duty within the power conferred by statute, the burden is upon the city to show that the commissioner was not duly authorized to sign the certificate.

APPEAL by the plaintiff, Emest M. Culp, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 13th day of

App. Div.]

Second Department, July, 1911. May, 1910, upon the dismissal of the complaint by direction of the court after a trial at the Kings County Trial Term, and also from an order bearing date the 20th day of May, 1910, and entered in said clerk's office denying the plaintiff's motion for a new trial.

William L. Bowman, for the appellant.

Clarence L. Barber [Theodore Connoly and Archibald R. T'atson with him on the brief), for the respondent. THOMAS, J.:

The parties contracted for the construction of sewer basins by plaintiff at prices related to the several elements of the work. The contract was performed and the plaintiff paid, but the performance of the work required certain sheathing, and the contract contemplated that its fulfillment would either allow or permit the removal of sheathing. Defendant's officers deemed it advantageous to keep in place certain sheathing, although they recognized plaintiff's right to withdraw it, and proper official action was taken to purchase it on behalf of the defendant at the sum of $522.92. The certificate, known as the certificate of necessity, was signed by the commissioner of public works, rather than by the president of the borough, and in an action brought to recover for this material the defendant, among other things, objected that the certificate was improperly executed, and the complaint was dismissed.

Section 383 of the charter (Laws of 1901, chap. 466, as amd. by Laws of 1907, chap. 383) provides that the commissioner of public works, in the absence, or illness, of the president of the borough, shall discharge all the duties of such president, and also that the powers conferred and duties imposed upon the president may be exercised and performed by the commissioner of public works “upon the request of said president,” or if such commissioner shall not have been appointed, then such powers and duties may be exercised and performed“ by any subordinate duly appointed by the president of said borough under the powers conferred upon him by this act, and duly designated thereto in writing; and such powers and duties when exercised or performed by such commissioner of public works or other appointee shall be regarded as having been exercised or performed by such

Second Department, July, 1911.

[Vol. 146. president in the same manner as if such powers and duties had been actually exercised or performed by such president personally.” It will be observed that the commissioner of public works acts for the president upon his request or in case of his absence or illness without formal designation, and by the force of the statute, and that the appointee is enabled only by an instrument in writing. The plaintiff, solicited by the defendant's officers to sell the sheathing in question, found the evidences of such official action as the statute requires to justify him in selling the property to the city, in consideration of its promised payment therefor. When, however, he came to court, the defendant, in the enjoyment of his property, would escape payment by insisting that the burden was upon him to make his way back through the transaction and discover that at the time and for the purpose in question, the president requested the commissioner to act for him, or that perchance the president was absent, or maybe ill. The rights of a citizen contracting with the city do not rest upon such uncertain basis. The statute gives the commissioner the power. The occasion for its exercise depends upon the request of the president, made it may be informally and orally, or upon the condition of the president's absence for the moment, or his physical incapacity or indisposition. Whatever convenience or necessity within the intention of the statute occasioned the exercise of the power by the commissioner is quite within the probable knowledge of the defendant's officials, and beyond convenient ascertainment by the plaintiff. What was done the statute authorized the commissioner to do. The presumption is that he did not usurp a function, but rather that he did his duty and kept within the power conferred by the statute. If it was done without the statute, let the defendant make proof of it. Presumptively the defendant owes the amount stipulated to be paid by it through its officials.

The judgment and order should be reversed and a new trial granted, costs to abide the event.

JENKS, P. J., BURR, CARR and WOODWARD, JJ., concurred.

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


App. Div.]

Second Department, July, 1911.

In the Matter of the Application and Petition of J. EDWARD

Simmons and Others, Constituting the Board of Water Supply of the City of New York, etc., Appellants, to Acquire Certain Real Estate for and on Behalf of the City of New York, for the Purpose of Constructing Hillview Reservoir at Yonkers, N. Y., to Increase and Maintain the Supply of Pure and Wholesome Water for the City of New York.

(Hillview Reservoir, Section No. 1.) GEORGE N. RIGBY and Others, Commissioners of Appraisal,


Second Department, July 27, 1911.

Eminent domain

compensation of commissioners of appraisal

allowance reduced.

Appeal by the board of water supply, city of New York, from an order taxing and allowing the compensation of commissioners of appraisal. Evidence examined, and held, that the amount allowed to the commissioners should be reduced owing to the fact that some of the hearings did not occupy an entire day, etc.

APPEAL by the petitioners, J. Edward Simmons and others, constituting the board of water supply of the city of New York, from an order of the Supreme Court, made at the Westchester Special Term and entered in the office of the clerk of the county of Westchester on the 15th day of May, 1911, taxing and allowing the bills of the commissioners of appraisal herein.

William McM. Speer [Archibald R. Watson with him on the brief], for the appellants.

Henry R. Barrett, for the respondents. THOMAS, J.:

Commissioners of appraisal held sessions on eighty-one days for which they claim compensation extending from June 11, 1909, to January 3, 1911, devoted largely to one parcel of land, a farm of fifty-four acres, adapted to sale in lots. At seventy-five sessions evidence was taken aggregating some three thousand and seventy pages, some printed and some typewritten, or

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