This action is brought for a breach. of said contract, plaintiff alleging that A. D. Knapp, for applt. Bundy & Seramling, for respt. Held, It does not affirmatively appear the city failed during the years 1873, that the plaintiff was a judgment cred- and 1874, to fulfill its part of the agreeitor at the time of the execution of the ment. The Board of Health was not, alleged fraudulent mortgages. The however, made a party defendant. referee has foun that there was no fraud. The question is one of fact. The evidence seems to show that the debts were bona fide. If this is so, which does not seem to be contradicted, it would require very strong evidence to show that the mortgages given to secure them were fraudulent. There is no such evidence in this case. The sixth clause of the answer alleged, that by statutory enactments the Board of Health became the successor to the City Inspector; that said Board in 1873, passed the following resolution: "Resolved, That the necessary arrangements be at once made to receive and take away the night soil, which the assignee, under the Gallagher contract, and James R. Dye, refused to provide a suitable place for and to receive," and that said resolution was passed because the plaintiff, or his asDEMUR- signee, had failed to keep their part of the contract, and had not provided suit Judgment affirmed, with costs. Opinion by Learned, P. J.; Bockes and Boardman, J. J., concurring. BOARD OF HEALTH. RER. N. Y. SUPREME COURT. GENERAL TERM, able receptacles for said night soil. FIRST DEPARTMENT. The seventh clause set up that the Board of Health was a necessary party Middleton Bell, applt., v. The Mayor, defendant to this action, and should &c., respts. Decided May 26, 1876. The Board of Ilealth is the successor of the City Inspector, and as such has control of all existing contracts made by him. By section 5, act of 1874, the Board is made a necessary party in any ao tion where any of its proceedings are called in question. Appeal from order of Special Term overruling demurrer to parts of the answer. In 1865 the city, through its inspector F. I. A. Boole, entered into a con tract with one Daniel Gallagher, whereby the city agreed to furnish to the latter, all the night soil of said city for a period of ten years, at a stipulated price per annum. The contract passed by successive assignments to plaintiff. have been made such. To these two clauses, plaintiff demured, which demurrer was overruled at Special Term, on the ground that under it the allegations mentioned in the clauses demurred to must be taken to be true, and if the contractor failed in the performance of his duty, it was proper for the Board of Health, in the hot weather of 1873, to take other measures for the removal of the night soil in question; and that by section 5, chapter 636 of the Laws of 1874, the Board of Health was made a necessary party defendant in any action where any of its ordinances or proceedings were call ed in question. Thos. Hooker, for applt. Wm. C. Whitney, for respt. signed at Special Term were sufficient to justify the order. This action was brought against defendant as assignee to compel him to The Board of Health has succeeded account and pay plaintiff a balance alto all the duties that pertained to the leged to be due him. The sole quesoffice of City Inspector, so far as they tion of fact litigated upon the trial was affect the subject matter of the con- whether the claim had been paid, and tract sued on herein; that contract, and upon this question the court found in the acts Lecessary for its performance, favor of defendant. Plaintiff did not have been, since the creation of the assail this finding, but seeks to have Board, under its jurisdiction and con- the judgment entered against him retrol; that Board saw fit to abrogate versed on account of the exclusion of the contract, on the ground of plaintiff's certain evidence offered by him upon failure to perform the same. This ac- the trial. One of plaintiff's witnesses, tion of the Board is directly in question, for if they acted legally, and upon well founded grounds, their action will be a complete defense to so much of the complaint as seeks damage for alleged breaches subsequent thereto. Section 5, act of 1874, is imperative, that the Board of Health shall be a necessary party in all cases within the section. This provision is suigeneris and novel in its character; but it is the law, and as such is to be respected and enforced. Order affirmed with usual leave to amend. D., was asked, "did you ever receive C. Bainbridge Smith, for applt. Held, That the evidence was properly excluded, as it had no bearing Opinion by Davis, P.J.; Daniels, J., upon the issue; also, that the question concurring. EVIDENCE. N. Y. COURT OF APPEALS. was not proper to discredit defendant. It appeared that there were several classes of creditors provided for in the assignment, and defendant testified Wintingham, applt., v. Dibble, as-that he paid the first class (in which signee, &c., respt. Decided June 6, 1876. When a party testifies that he has paid the claim of a third person to other parties who had purchased it, it is not proper to ask such third person how much he received from such party. Where the plaintiff belongs to the first class of preferred creditors, a question as to how much was paid upon claims in the second class is immaterial. defendant was) in full, and made a dividend upon the second class. Пе was then asked what dividend he made upon the second class, and the question was excluded. Held, No error; that the question was wholly immaterial, as plaintiff's claim had nothing to do with the second class, and how much was paid to that class could have no bearing upon the issue litigated. Judgment of General Term, affirm ing judgment o Special Term in favor of defendant, affirmed. Per curiam opinion. Heid, That the question of inception, and as to the time the note became valid and binding, was a question of fact upon conflicting evidence and PROMISSORY NOTE. INCEP- should have been submitted to the jury. TION. It was the vital point in the case, and N. Y. SUPREME COURT. GEN'L TERM. it was error to refuse to submit the FOURTH DEPARTMENT. Sweet, respt. v. Chapman, applt. Decided April, 1876. The time when a note should have its inception is a question of act for the jury under ali the facts. This action was brought on a promis sory note. One G. was the agent for an insurance company and had solicited defendant to insure, and had promised defendant that he would take his note for nine months, with interest, for the amount of the premiums. Defendant made his note and gave it to G. with the understanding, as he claims, that the note was not to be valid. or binding until he had received the policy, &c. G. on the contrary swears that the note was to be valid and binding when the defendant had passed the medical examination. Defendant did pass the medical examination all right, and then G., with same. The decision of the judge that because the plaintiff purchased the note before due and without knowledge, an paid a bona fide consideration therefor, the note was valid in plaintiff's hands, was enormous, and the error consisted in overlooking the time of inception. As between defendant and G., they could agree that the note should have no vitality till the happening of a certain event. Benton v. Martin, 52 N. Y. 574. That a note to be the subject of sale must be an existing, valid note, in the actual consideration so that it can be enhands of the payee, and given for some forced between the original parties and if not valid in the hands of the payee, cannot be rendered valid by a sale to a bona fide purchaser at a rate of interest exceeding seven per cent. Judgment reversed. Opinion by Noxon, J. out notice to defendant, sold the note, RECEIVER. RIGHTS OF CREDIbefore due, to plaintiff for ten per cent. discount. Plaintiff knew nothing of the transactions or agreements between defendant and G., ani took the note bona fide. On the tria! the court ordered judg ment for the plaintiff. Defendant asked to go to the jury on the question of usury, and when the note had its inception, which request the court re fused. R. H. Tyler, for applt. TORS. N. Y. SUPREME COURT. GENERAL TERM. THIRD DEPARTMENT. A. T. Stewart applt.. v. G. W. Beale, et. al., respts. Decided May, 1876. Where the appointment of a receiver has prevented a levy by a creditor, his rights will be protected and he will be permitted to show, without actual levy, that another creditor's security is void. Action to foreclose a mortgage cover Judgment affirmed with costs. ing real and personal estate, but which of the validity of the mortgage could had not been filed as a chattel mortgage then have been tried. The mortgage before certain causes of action arose in to F. does not affect the decision befavor of creditors. The creditors re- cause by the action of the court on becovered judgment and issued execution. half of all parties that had been redeem Prior to the commencement of this ac- ed, although the title may have been tion another chattel mortgage had been vested in F. on default. A Court of given to one F., and default had been Equity, which has taken possession of made thereon. Before the recovery of property by a receiver, will protect the judgment by the creditors the plaintiff rights of creditors and will not, because had had a receiver of the property of there was no actual levy, deprive them the mortgagor appointed, and the cred- of the right to show that another crediitors could make no levy under their tor's security is void. executions. They then put in a sup plemental answer alleging a prior lien on the personal property by judgment and execution. They brought an action asking to have the mortgage declared void as to them in respect to the N. Y. SUPREME COURT. GENERAL TERM personal property. Thereupon the powers of the receiver were extended over the creditors' action, and by an order entered in both actions the receiver sold the personal property, paid the prior mortgage to F., which was not disputed, and deposited the balance subject to the order of the court. Both the mortgagee and the creditors claim the fund. On the trial the court held in favor of the creditors. Henry E. Davies aud Edward B. Hilton, for applt. CERTIORARI. FIRST DEPARTMENT. People ex rel., George McLaughlin v. The Fire Department of the City of New York. Decided May 1, 1876. of departments in the removal of subordinates by way of discipline, is limited to cases which are in violation of prescribed regulations. Certiorari to the Board of Fire Co:nmissioners. Relator was foreman of Hook and Ladder Company No. 6, in the employR. E. Andrews and J. A. Mapes, ment of the Fire Department. for respt. 6 On the 19th of October, 1874, a Held, That the mortgage was void charge was preferred against him of as to the personal property as against conduct prejudicial to good order." creditors who became such before the The specifications being that he did filing of the mortgage. By the ap obtain from Mr. Richard Baxter, on pointment of a receiver the plaintiff the 5th day of June, 1874, the sum of prevented a levy by the defendants forty-five (45) dollars, payable in one (creditors) under their execution. Had month, up to date, no part of which has no receiver been appointed the defend- been paid. The proof on the examination show ants could have levied on the property claimed by Stewart under his mort- ed that the money had been borrowed gage, on default made, and the question for one Walker, who transferred the ESTOPPEL. CUIT. The People v. William C. Stephens Thomas Gale and others. Decided June 19, 1876. draft, on which the loan was made, to Baxter. Relator was discharged from N. Y. SUPREME COURT, ALBANY CIRthe department. Chap. 335 Laws of 1373, sec. 28, provides, that the heads of departments may remove all employees, officers, &c., in their departments. Sec. 77 provides, that the government and discipline of the Fire Department shall be such as the board may from time to time, by rules, regulations, and orders, prescribe. There does not appear to have been any rules or regulations prohibiting the borrowing of money on salary. On appeal. D. A. Levien, Jr., for relator. Held, That Sec. 77 of the Laws of 1873 is clearly a limit to the exercise of discretion conferred by Sec. 28, which otherwise is unlimited and absolute. The government and discipline must be established by rules. The charge against relator, if true, would be one against discipline. The judgment of a court of competent jurisdiction upon a question direct ly at issue between the parties, unless reversed, forever concludes and estops all parties to the action, and those in privity with them, from questioning its accuracy or justice in another action. Where a contract has been obtained by fraud or an illegal combination, the party for whom the work is to be done cannot insist upon its performance, voluntarily and with full knowledge pay the stipulated price, and then in an action recover his damages. Motion for non suit. This action was commenced in March, 1873, to recover the damage which the plaintiff's have sustained by reason of a contract made between the State and the defendant, Stephens, dated the 31st If the orders, rules, and regulations day of December, 1866, whereby the were prescribed and published, the of- latter undertook to keep section numficers of the departments would unde.- ber one of the Erie canal in repair, as stand and be bound by them, unless in the contract is particularly defined they were unreasonable and void. for the period of five years from the first day of January, 1867, for the price or sum of seventy thousand dollars per year, and also during the same period to dredge the Albany basin and remove and deposit the material excavated, likewise particularly described in said contract, for the sum of seventy cents per cubic yard. This contract, immediately upon its execution, was, with the consent of the State, assigned by the defendant, Stephens, to the defendant, Gale, who, as the complaint avers, "represented as well himself as the defendants, Belden and Denision **** and that said Gale But in cases like this, we do not think that the power of removal rests wholly upon the mere discretion of the respondents, but rather upon a violation of some order, rule or regulation, but it does not appear that any such rule or regulation has been prescribed, and if it had, relator's dismissal was erroneous, because the charge as specified was not proved. Judgment for respondents erroneous and must be reversed. Opinion by Brady, J.; Davis, P. J. and Daniels, J., concurring. |