NEW YORK CITY —Continued.

8. Estoppel preventing principals from denying authority of agent, has no
application to public officers.] The estoppel which the courts apply to prevent
principals, whether natural persons or business corporations, from denying
the authority of their general agents while acting within the scope of their
apparent powers, has no application to a public officer, professing to dis-
charge official functions, where the question is as to the extent to which such
officer may charge, by contract, the government or department of government
which creates or controls him. Id.

9. -Public schools-teachers in-power of trustees to remove.] At a
meeting of the school trustees of the Fourteenth ward, of the city of New
York, at which four of the five trustees were present, a resolution was unani-
mously adopted, in pursuance of chapter 351, Laws of 1864, removing the rela-
tor from her position as teacher in one of the schools in the said ward.
Subsequently this resolution was filed with the board of education, and the
approval of two of the three inspectors was indorsed thereon. Held, that the
action of these officers was regular. The statute does not require the ap-
proval of the inspectors to be given at the meeting of the board of trustees, or
to precede the action of that body; it is enough that it is given in writing
after the board has acted.

The statute vests the power of removal in the trustees, subject only to the
approval of the inspectors, and where they are satisfied as to the incompe-
tency of a teacher, with or without evidence, their power to remove him
therefor cannot be questioned. (Per LAWRENCE, J.)
PEOPLE v. BOARD OF EDUCATION

10.

.....

·Public school-appeal from decision of trustees of, to board of educa-
tion. The act of 1864, authorizing an appeal from the decision of the trus-
tees to the board of education, makes no provision for a judicial trial on the
sworn testimony of witnesses. The manner of investigating the appeal is
left wholly in the sound discretion of the board of education.

The power of the board of education to hear appeals from the action of the
trustees, in removing teachers, is discretionary and not obligatory, and this
court has no power to reinstate a teacher, by the reversal of the action of the
board of education and of the trustees. Id.

11. Trustees are to be deemed to have notice of a stated meeting held
pursuant to their by-laws. Id.

12. Wells and pumps in — repairs of — § 38, chap. 446, 1857.] This ac-
tion was brought to recover for services and materials furnished by the
plaintiff in repairing wells and pumps in the city of New York, in pursuance
of the directions of the deputy street commissioner. between January 1 and
April 9, 1870. Held (1), that the street commissioner had no authority to order
the work to be done, the Croton aqueduct department having charge of all
work relating to the repairs of wells and pumps; (2), that it nowhere appeared
that the necessity of the work had been certified to by the head of the depart-
ment, as required by section 38, chapter 446, Laws of 1857, and section 6 of
the City Ordinances of 1866, page 93; (3), that the plaintiff was not entitled
to recover. BURNS v. THE MAYOR...

13. Commissioners of estimate and assessment - taxation of costs of-
cannot be attacked collaterally.] The plaintiffs' claim for services performed
and expenses incurred as commissioners of estimate and assessment, was pre-
sented for taxation as required by law, was taxed before a referee, and such
taxation was confirmed by the court. In an action brought against the city
for the recovery of the amount so taxed, the defense interposed, was, that such
amount exceeded that warranted by the provisions of the statute. Held, that
the taxation could not be attacked collaterally; that it was conclusive against
the defendant, until set aside in proceedings taken directly for that purpose.
PITTMAN. MAYOR..

14. Counter-claim · what facts do not constitute, under Code or R. S.] The
answer set up a counter-claim existing in the defendant's favor, against one
Purser, who, it was stated, was entitled to receive or had been paid $1,538.12
of the amount allowed to the commissioners. Held, that these facts did not
constitute a counter-claim under section 150 of the Code, nor under the pro-
visions of subdivision 10, section 12, 3 Revised Statutes (5th ed.), page 635

PAGE.

177

212

370

NEW YORK CITY - Continued.

(sub. 10, § 18, title 2, chap. 6, pt. 3, Rev. St.), relative to actions by trus-
tees, etc. Id.

15. Power of, to make contracts with its officers-1870, chap. 137, 115;
1871, chap. 574, 1.] Section 115 of chapter 137, Laws of 1870, prohibiting
certain officers therein named from being interested in any contract with the
city, was not repealed by section 1 of chapter 574, Laws of 1871, authorizing
the mayor and comptroller to designate newspapers in which to publish the
proceedings of the common council. Accordingly, where the newspaper
owned by the plaintiff was designated for such purpose, he being at that time
one of the health commissioners of the city, held, that he was incapable of
taking such contract; and that, as it was expressly forbidden by law, its per-
formance could create no valid claim against the city for compensation.
MULLALY. MAYOR...

16.
Contracts with--failure of commissioners to comply with statute (1872,
chap 580) in giving certificate — when may be shown.] Under an act of the
legislature, commissioners were appointed to examine, after notice to the
comptroller of the city of New York, into the facts and circumstances relat-
ing to certain contracts with the city, not entered into in the manner provided
by law, and if satisfied that no fraud was perpetrated in relation to the con-
tracts, or the performance thereof, they were to make a certificate to that
effect, from which time the contracts were to become valid and binding on
the defendant; and the certificate was declared final and conclusive as to all
questions of fraud, in relation to such contracts and the performance thereof.
Held, in an action brought to recover on a contract, for which such a certifi-
cate had been given, that evidence, offered to show that the contract had
never been presented to the commissioners nor investigated by them, that
there had been no investigation before them as to the performance of the
work, and that the work had not been performed, was improperly excluded.
BROWN . MAYOR

17. Streets-damages for change of grade by commissioners of Central
Park.] The commissioners of Central Park established a new grade for a
portion of One Hundred and Twenty-second street, New York, acting under
the provisions of chapter 697 of 1867, section 3 of which act provides that all
damages arising from altering the grade, shall be ascertained in the manner
specified in sections 3 and 4, of chapter 52 of 1852, which last mentioned act
provided that the estimate and assessment were to be made as directed in
section 175, of chapter 86 of 1813. By chapter 302 of 1869, a board of assess-
ors was organized, with the "duty of making the estimates and assessments
required by law for
pitching, paving, regulating and repairing
streets." Held, that these words were sufficiently broad to cover the grading
of streets done under the law of 1867. That the board of revision and cor-
rection, created by chapter 308 of 1861, erred in returning the assessment list
to the board of assessors, with directions to strike out the assessment of the
relator's damages for injury to her building by such change of grade, on the
sole ground that the latter board had no power to estimate and assess them.
PEOPLE v. GREEN

18.

*

*

*

Assessment-mandamus — when issued to enforce confirmation of]
A relator, having no remedy by action at law in such a case, is entitled to a
mandamus requiring the assessors to return without change, the assessment
list to the board of revision and correction, and that board to confirm the
same. Id.

Penitentiary-commitment to

-

19.
- Revised Statutes relative to sentence
of imprisonment in county jail — when applicable to case where sentence and com-
mitment are for imprisonment in penitentiary.] A statute providing that
whenever a sentence of imprisonment in a county jail shall be pronounced
upon any person convicted of any offense, the clerk of the court shall, as soon
as may be, make out and deliver to the sheriff of the county a transcript of
the entry of such conviction in the minutes of the court, and of the sentence
thereupon, duly certified by such clerk, which shall be a sufficient authority
to such sheriff to execute such sentence, and he shall execute the same
accordingly (3 R. S. [5th ed.], p. 1032, § 13), is applicable to a case in which
the sentence and commitment are for imprisonment in the penitentiary, it
being provided by statute that such penitentiary should become one of the

PAGE.

661

685

755

NEW YORK CITY-Continued.

jails of the city by the name of the penitentiary of New York, and that it
should thenceforth continue the jail of said city for the confinement and safe
keeping of all persons convicted of any crime or misdemeanor and sentenced
to confinement therein by any Court of Oyer and Terminer in said city,
and that the keeper of such penitentiary should keep all persons committed
to it in the same manner and under the same penalties as the sheriffs of other
counties in the State ought to keep, in the jails of the respective counties,
the criminals committed to them. (Laws of 1814, chap. 176, §§ 1, 3.)

PAGE.

Where the sentence and commitment direct that the criminal be confined
in the penitentiary, and by the judgment record it appears that he is to be
confined in the county jail, the signification of the terms used as descriptive
of the prison must be determined by the circumstances under which they
were used; and it must be understood that the jail referred to was the one
in which the prisoner could be properly imprisoned, which, in this case, was
the penitentiary. PEOPLE EX REL. TWEED 2. LISCOMB.
760

-

Section 5,

20. - Misdemeanors jurisdiction of Special Sessions of]
chapter 337, of the Laws of 1855, which provides that “the Court of Special
Sessions of the Peace, in and for the city and county of New York, shall
have power to hear, determine and punish, according to law, all complaints
for misdemeanors, and shall possess exclusive jurisdiction thereof, unless,"
etc., does not give the Special Sessions exclusive jurisdiction of all misde-
meanors, but only of complaints of misdemeanors, which includes only cases
commenced by complaint, technically understood as the foundation for a
warrant in the mode prescribed by the Revised Statutes. Id.

21.

Poncer of common council to appoint clerk-1869, chap. 876, § 11
new office" within meaning of] On the 7th of February, 1870, the common
council of the city of New York passed a resolution authorizing the clerk of
the common council to appoint an eighth assistant clerk of the board of alder-
men. The plaintiff was appointed to that position, and brought this action
to recover four months' salary.

Held, that the plaintiff was an officer, but that the office to which he was
appointed was not a new one within the meaning of section 11, chapter 876,
Laws of 1869, prohibiting the common council from creating any new office.
COLLINS v. MAYOR...

Board of apportionment of - when will not be compelled by mandamus
to issue the bonds provided for by chap. 583, 1871.

See PEOPLE v. BOARD OF APPORTIONMENT.....

Assessments- lien of effect of invalid sale on - when amount of, may
be deducted from damages awarded for lands taken for public streets — when pay-
ment, and not statute of limitations, should be pleaded.

See FISHER v. THE MAYOR..

Contract for paving street-certificate of water purveyor as to fulfillment
of - when condition precedent — what will not excuse compliance with condition.
See BOWERY NATIONAL BANK . THE MAYOR....

680

11

648

639

Services of salaried clerk — when supervisors have no power to allow extra
compensation for.

See COWAN v. THE MAYOR

632

1874, chap. 304— consolidated corporation substituted as party plaintiff
instead of board of supervisors in action at issue -
when proper.

682

See BOARD OF SUPERVISORS v. TWEED..

NEW YORK COUNTY — Board of supervisors of — liability of, for tax ille-
gally collected - State tax-board of supervisors do not act as representatives of
State in collecting-chap. 108, 1863-construction of.

See MERCHANTS' NAT. BANK v. BOARD OF SUPERVISORS

NONSUIT - Motion for effect of, when followed by direction to find verdict for
plaintiff.] 1. When the defendant, at the close of the whole evidence, makes
an unavailing motion for a nonsuit, which is followed by a direction from the
court to find a verdict for the plaintiff, and no request is made by the defend-
ant to submit any question of fact to the jury, the defendant is held to have

156

admitted that only questions of law are involved. If the defendant does not
move for a nonsuit or verdict, and judgment is directed for the plaintiff, the
rule is otherwise. TODD v. TODD....

PAGE.

298

2. Effect of neglect to move for.] When a defendant does not move
for a nonsuit, he admits that the evidence on the part of the plaintiff is
sufficient prima facie to justify a verdict in his favor. Ross v. COLBY....... 546
NOTES:

See PROMISSORY NOTE.

NOTICE - Recital of unrecorded mortgage in recorded deed, not notice to subse-
quent incumbrancers.

See CROFUT v. WOOD

-

NOTICE OF SALE-In foreclosure by advertisement — not necessary to state
in, that subscribers have lawful right or authority to foreclose - Notice, signed by
executors, with words “executors," etc., after their names, is sufficient.
See PEOPLE v. PRESCOTT

OFFICERS

--

571

419

Test to distinguish between officers and servants.] Semble, that
the true test to distinguish officers from simple servants or employes, is in
the obligation to take the oath prescribed by law. COLLINS . MAYOR.............. 680
ORDER Form of order reversing order of court below, granting new trial.

See MCLAUGHLIN . SMITH. . .

250

The court will not presume an order to have been at an irregular term.
See PEOPLE v. CITY OF BROOKLYN....

596

ORDER OF ARREST - Where two causes of action are joined in complaint,
there must be a right of arrest upon entire claim.
See TOFFEY v. WILLIAMS.

217

OYER AND TERMINER-Absence of one of the members of the court dur-
ing portion of trial-effect of.

See SHAW v. PEOPLE...

272

PARTIES - Action by receiver to set aside fraudulent conveyance-judgment
debtor proper party defendant.] 1. In an action brought by a receiver, appointed
in supplementary proceedings, to set aside a conveyance, as fraudulent as
against creditors, the judgment debtor is properly made a party defendant.
ALLISON v. WELLER

2.

Substitution of parties plaintiff -- new answer when leave to serve,
not allowed.] Under chapter 304, Laws of 1874, providing for the consolida-
tion of the city and county of New York, an order substituting the consoli-
dated corporation for the board of supervisors, in an action commenced by
them and then at issue, is proper; and, as the complaint remains precisely
the same after as before the order, the defendant is not entitled to serve a
new answer, and permission so to do is properly refused.

BOARD OF SUPERVISORS v. TWEED..

-

3. Defect of demurrer.] A defect of parties apparent on the face of
the complaint must be taken advantage of by demurrer or it is waived.
ZIMMERMAN v. SCHOENFELDT..

Right of stockholder to maintain action against corporation for frauds
of its directors-fraudulent purchaser of corporate property may properly be made
a party, without offering to restore purchase-price thereof.

608

682

693

See GRAY v. N. Y. AND VA. STEAMSHIP Co.

383

Complaint in action brought in name of plaintiff and all other creditors —

when insufficient.

See ELWELL v. JOHNSON..

558

When not necessary to make all stockholders parties to an action against

foreign corporation.

See REDMOND v. HOGE

171

Joinder of when parties jointly and severally liable are not liable as
partners, and action may be maintained against either.

See SPEYERS v. FISK

706

PAGE.

PARTITION - Chap. 238, 1853 - issues of fact to be tried by jury, in cause
determined at Special Term.] 1. In an action brought under the provisions of
chapter 238 of 1853, the cause is properly determined by the court at Special
Term, but with the aid of a verdict of a jury to settle the questions of fact
necessary to establish the title at law.

A case is not necessarily an equity cause because on the Special Term cal-
endar, and if there be an issue of fact in the case, the court may send it to a
jury either upon a settlement of special issues or on the pleadings.

HEWLETT 0. WOOD..

2. Jurisdiction of Special Term in proceedings for.] The Supreme Court,
sitting at Special Term, has all the jurisdiction, both legal and equitable, con-
ferred by the statute on the Court of Chancery and the former Supreme
Court in proceedings for partition, and is to conduct the same, so far as they
are applicable, in conformity with the provisions of the Revised Statutes. Id.
PARTNERSHIP - Person induced to join firm by fraud-liability of, upon
firm contracts.] 1. When one is induced to become a member of a partnership
by fraud- he believing that he is to become a special partner, and be liable
only for the capital advanced, but the provisions of the statute relative to
special partners are not complied with- he is liable upon all contracts
entered into by the firm in the ordinary and usual course of its business.
TOURNADE . METHFESSEL

2. Rescission of partnership agreement effect of.] A rescission of the
partnership agreement on account of the fraud, will not discharge him from
liability upon contracts entered into by the firm previous to the rescission.

Id.

3.

736

144

Agreement between members of new firm to assume old debts-induced
by fraud — when such fraud is defense to an action by creditor.] This action was
brought to recover money loaned, in 1867, to the defendant Bowen, who
was then carrying on business in the city of New York. Subsequently the
defendant Nichols entered into partnership with Bowen, upon the agreement
that the new firm should assume and pay the debts of Bowen. Upon the trial
of this action, which was brought against the new firm, Nichols offered to
prove that he was induced to enter into the agreement by fraudulent repre-
sentations made to him by Bowen, and claimed that the promise to pay the
old debts was void on account of such fraud. The court excluded the evi-
dence. Upon an appeal from the judgment, hell, that the evidence was
proper and should have been received; whatever would be a defense to an
action on the promise, brought by the defendant Bowen, would also be
a defense to an action brought by the plaintiff. HINMAN v. BOWEN....... 192
4. Contracts with — each partner not liable to separate action on.] All
contracts with partners are joint and several, and each partner is liable to pay
the whole amount of the claim thereunder, but each partner is not liable to
a separate action. SPEYERS v. FISK..

5. When parties jointly and severally liable are not liable as partners.]
The plaintiff alleged that, at the request of James Fisk, Jr., and one Jay
Gould, he rendered services for their benefit and on their account, for which
they jointly and severally promised to pay him. The complaint contained
no allegation that Fisk and Gould were partners. Held, that a demurrer to
the complaint, on the ground that the debt was due from Fisk and Gould
as partners, could not be sustained. Id.

Judgment recovered by — entry in clerk's office of release of, by one partner
-cancellation of.
See ROMAIN v. GARTH...

-

PASSENGER 'Lay-over ticket" — right of railroad company to limit time
in which it may be used - Baggage master — when his acts not binding on com-
pany.

See WENTZ v. ERIE RAILWAY CO .....

706

214

241
PATENT-Rights of assignee of.] 1. An assignment of a patent vests in
the assignee an interest in the patent, indefeasible by the act of the patentee,