ful combination, and which is known willing to do the work at a price less before the work is ordered to proceed, than the Stephens' bid called for. The or compensation paid, the party so ordering and paying has been an active contributor to his own injury, and has himself winged the dart which inflicts the wound. In the one, the injury is complete by the voluntary act of the party in default, and the other the consummation of the injury is enforced by the party making the complaint. Between them there is no parallel, and no train of thought which demonstrates a plausible cause of action in the one can furnish any possible ground for the maintenance of the other. informal bids, rejected because they were informal but not required to be refused for that reason, so informed them. They also knew that the proposal was too high, for it was first rejected for that very reason, but subsequently it was accepted, and the contract signed. In about a month after the contract was executed, the legis ature of the State had knowledge sufficient to put them upon inquiry, and as early as January, 1867, a resolution organizing a committee of inquiry was introduced, and had passed' both houses on February 7, 1867. April 19, 1867, a joint resolution was adopted by the two legislative branches requiring the contractors to proceed in the execution of the contract, and directing that the "Canal Commissioner in charge of the eastern division discharge his duties." If an agent be authorized to receive proposals and contract for work, does not this power necessarily carry with it the right to decide every question pertinent to the making thereof? It surely does, for the authority con erred upon an agent to do an act "is always construed to include all the necessary and usual means of executing it with As early as March 11, 1867, certaineffect." Story on Agency, Sec. 58. ly, and perhaps before that, the canal. The party entrusted with such a power board had accurate information of the is chosen not because he is a machine, alleged conspiracy, and the officers of but a man, with eyes to see and judg- the State ordered the work to proceed, ment to exercise. When the question and compelled its performance for the comes as to the propriety of making whole five years. the agreement, his principal expects that he will consider every point bearing upon the expediency of the acts which he is to do. The right to consider and determine necessarily involves the power to bind the principal by the decision when made. Knowledge of ing the attorney-general to commence the agent is knowledge of the principal, and the acts of the former, when in good faith, bind the latter. Joslin v. Corvee, 52 N Y., 90; same case, 6 the contracting board was abolished, N. Y., 626. but it declared that its abolition should The contracting board of the State not "invalida e the contracts heretohad knowledge, before they executed fore made, or discharge any of the con the contract, that other parties were tractors from the duties and obligations On January 1, 1868, the joint committee of the legislature made its report, and such report fully established every fact relied upon in this action. During the same session a law was passed (chap. 869, laws of 1868) authoriz suit to annul the contract, among others, which is involved in this action. By chapter 55 of the laws of 1870, imposed by such contracts, or the said RECEIVERS. STRIKING OUT laws." By the same act the canal board ANSWER. FIRST DEPARTMENT. was authorized, "whenever they shall N. Y. SUPREME COURT. GENERAL TERM. deem it for the interests of the State, to cancel and annul any contract or contracts, for repairs of the canals heretofore made, by a resolution to be entered in the minutes of the said board." John M. Harlow. trustee, &c. v. Alvan S. Southworth, receiver, impleaded &c. Decided May 26, 1876. Receiver permitted to come into an ac tion and serve an answer setting up his appointment, and forbidden to allege anything in hostility to plaintiff, may not afterwards amend such answer and aliege other matters. Appeal from an order striking out answer. This action was brought by the plaintiff as trustee of the first mortgage bonds of the Bleecker Street and Fulton Ferry Railroad Company, to foreclose the first mortgage given by the road. With entire knowledge the work was executed. Year by year a report from the canal commissioner in charge declared the sum due the contractors. Appropriations to pay were regularly made by the legislature, and payments made by the officers who were charged with that duty. The proof conclusively establishes that when the coutract was executed the contracting board was not deceived by the supposition that the accepted bid was the lowest price to be obtained after a fair competition; that the officers of the State in charge of the work, and its legislature when its performance was required were fully informed of the alleged fraud; that the law-making power of the State, with accurate and complete knowledge, affirmed the contract by express law, Upon his own application he was and year by year placed the money of made a party defendant in the above the State in the hands of its officers to suit. In the order making him such be paid thereupon; and that such party, he was permitted within three an answer to the money and every dollar of it has been days to put in paid, not only without any mistake of a'ove entitled action, by which anfacts, but with full, complete and accu-swer he might set up his appoint rate information. The contract has been signed, executed, and completed with zul! knowledge, and it would be preposterous to hold that when the State has for five long years, required every act to be done which has been done, that it can have any redress for action which it has itself compelled. Opinion by Westbrook, J. The defendant, Southworth, was in the above action, and also a second action, appointed receiver of the Bleecker Street and Fulton Ferry Railroad Company. ment as Receiver, and submit his rights to the protection of the court; and it was further provided that said answer should not contain, or set up, any matter or averment, in hostility to the above named plaintiff, John M. Harlow, as trus.ee, &c., or any other matter than as aforesaid. Within the time provided by the order the Ieceiver, Southworth, put in an nswer setting up his appointment as Receiver, and asking the protection of the court; and within twenty days after served an amended answer, setting up chat a large portion of the bonds referred to in the complaint were void, fictitious, and fraudulent evidences of debt, &c., and asking an accounting touching such bonds, to the end that such bonds. as had been fraudulently issued, without consideration, should be ordered to be delivered up and cancelled, and for other relief. Upon the return of an order to show cause, such amended answer was stricken out, and the original answer directed to be and stand, as the answer herein, and from the order striking out the amended answer this appeal was taken. A judgment recovered on notes given to settle an action, the issue in which was joined before the execution of the mortgage, held sufficient to show an indebtedness prior to the making of the mortgage. Declarations of a party made before giving the mortgage are admissible as evidence against him. The testimony of a defendant given on a former trial of the same action may be given in evidence against him. Plaintiff brought action as assignee of certain judgments against defendant, II., after return of execution unsatis fiel, to set aside a mortgage executed by the latter to defendant McI., as fraudulent against creditors. Defend Held, That the answer, so far as it ants claimed that plaintiff could not realleges that some of the bonds are with cover, upon the following grounds out consideration, sets up nothing in among others: That there was no hostility to the trustee. It is his duty proof; that the judgments owned by to see to it that no such bonds are paid him were recovered upon an indebtedout of the proceeds of his foreclosure. ness which existed before the making The order, under which the Receiver of the mortgage from H. to McI. It was permitted to come in, limits his anappeared that these judgments were reswer to certain specified things. The covered upon notes made by H. and object, doubtless, was to prevent delay others, and given to settle an action in the suit which would be unnecessary, against them upon another note, made as the order of reference to take proof by II. and others, the issue in which of the bonds will doubtless contain was joined before the execution of the proper directions on the subject of any alleged invalid or fraudulent bonds, and the Receiver, and all other parties will be entitled to be heard as to the form of such order and before the ref eree. Order affirmed. mortgage. Geo. T. Spencer, for applts. Held, That this evidence was sufficient to sustain a finding that the indebtness to plaintiff existed before the Opinion by Daniels, J.; Davis, making of the mortgage. P. J., concurring. CREDITOR'S BILL. EVIDENCE. N. Y. COURT OF APPEALS. Defendants also claimed that the referee erred in receiving in evidence declarations of H. made before giving the mortgage. Plaintiff's counsel stated, Stowell, respt., v. Hazlett, et. al., when the evidence was offered, that he applts. Decided June 3, 1876. claimed the testimony only as evidence against H. Held, That it was to be inferred that it was received and considered by the referee with that limit. Defendants also claimed that it was error to receive in evidence the testimony of H. on another trial of this action offered by plaintiff. The counsel for both defendants objected generally to its reception. Held, That the evidence was properly received as against defendant II., and the referee was right in overruling the objection which sought to exclude it entirely. Judgment of General Term, affirm case, and was prepared to try the cause when it should be reached. Before the cause was reached the defendant therein died, and the matter was finally settled by her heirs without further litigation. Watson received for his services $2,125, of which, by the agreement, $708.33 was to be paid Tracy. He paid him $250, and asked to be allowed to retain the balance for a short time, when he wouid pay it also, but afterwards changing his mind he refused to pay the halance, and for said balance this action is brought. Defendant resisted this action on the ing judgment in favor or plaintiff on re-ground that he had made his agree port of referee, affirmed. Opinion by Folger, J. COUNSEL FEE. CONTRACT. William Tracy et. al., respts., v. William Watson, applt. Decided May 26, 1876. ment with Tracy alone and not with the firm, and that therefore the plaintiffs were improperly joined. That Tracy was to be paid for the trial of the case of Lynch v. Lynch, and there being no trial, the consideration failed. On the trial it was shown that all that was earned by either of the plaintiff's went into a common fund, and belonged to all alike. The written agreeWhere firm holds all earnings in comment was put in evidence, the part remon, it is enough interested in a conferring to counsel fee was as follows: tract of third party with a member of said firm, to bring an action in the firm name, to enforce said contract. Where the written contract of parties is apparently incomplete, evidence may be given, showing the further stipulation entered into by them. Appeal from judgment recovered on a verdict. Plaintiff's compose the firm of Tracy & Tallmadge, attorneys. In 1870 the defendant, who was the attorney in the suit of Lynch v. Lynch, retained Mr. Tracy as counsel, agreeing to pay him as counsel fee, one-third of what the said Watson should receive from his client as fee, and an agreement to that effect was drawn up and signed. Tracy argued a motion in the "He (Watson) employs Tracy, as counsel, and is to pay over to him onethird of what he shall derive from the service; not counting in $400 received on account." The court ruled out (Wm. Watson) Wm. Tracy, for respt. Held, That the members of plaintiff's firm having a common interest in the earnings of each member, were properly the parties in interest in this case, and the action was correctly said estate; was to repair buildings, brought in their names. The contract collect rents, borrow money and incur was explicit and complete upon the obligations in reference to such propersubject of counsel fee, and for that rea- ty, pay debts, &c. son it was not liable to be explained or Edwards employed one Wilson to changed by oral evidence. The parties perform certain work on the property had expressly stipulated how the of the estate and to pay for the work. amount realized from the litigation Edwards gave to Wilson a note signed should be divided between them, and "John Edwards, attorney for the estate that was not rendered subject to any of L. Hayes." Plaintiff discounted contingency, or qualification whatever. this note, and brings this action to colWhere the instrument, produced as the lect the same. contract of the parties, is apparently incomplete, then evidence may be given showing the additional stipulation entered into by them. This was not such a case; the only question was as to the amount defendant should pay; and when it appeared what he had received, the contract fixed in plain terms what he should pay. Judgment affirmed. Opinion by Daniels, J. Davis, P. J., and Braly, J. corcurring. The heirs of the estate were sued, and they defend. The Judge at Circuit non-suited plaintiff. Winslow & Smith, for applt. Held, That the non-suit was right. That a principal is not bound by the contract of an agent unless the name of the principal is set forth in the contract or annexed to the signature of the agent, showing that it was the intention of the agent to contract for or in behalf of his principal. If the contract does not show this important fact, then the principal is not bound, but the agent may be personally responsible on the PRINCIPAL AND AGENT. Decided April, 1876. That the note in this case not disclosing or holding the principals, and being signed by Edwards, attorney, &c., surely did not bind the heirs of the es A promissory note given for work done Appeal from judgment of non-suit. Judgment affirmed. Opinion by Mullin, P. J. PUBLIC ADMINISTRATOR. IN- a written power from the heirs, of N. Y. SUPREME COURT. GEN'L TERM, the estate of L. Hayes, deceased. By his power of attorney, Edwards was to take charge of and have a gen FIRST DEPARTMENT. Algernon S. Sullivan, public admin eral superintendence, care and control istrator, &c., applt, v. Concepcion Henover the property, real and personal, of lera et al., respt. |