there speak of it, it must be proved by such witnesses." Jones v. Morgan, 90 N. Y. 4, 10. To this general rule as to the manner of establishing market value there are some exceptions. Thus, it has been held that the price which was previously paid for property (Hoffman v. Conner, 76 N. Y. 121, 124), or for which it was sold at a public auction (Campbell v. Woodworth, 20 N. Y. 499), or the amount subsequently obtained on a private sale between other parties (Parmenter v. Fitzpatrick, 135 N. Y. 193, 31 N. E. 1032), is some evidence of value. But we find no exception which authorizes a defaulting vendor, as evidence in his favor, to prove the price for which he subsequently resold the property at a private sale. The authorities upon that question are quite to the contrary, and to the effect that the price for which the property is resold by the party is not admissible in his favor as evidence of its market value. Roe v. Hanson, 5 Lans. 304; People v. McCarthy, 102 N. Y. 630, 8 N. E. 85; In re Thompson, 127 N. Y. 463, 467, 28 N. E. 389, 14 L. R. A. 52; Flannagan v. Maddin, 81 N. Y. 623. That the evidence objected to should have been excluded, seems obvious. It was, in effect, admitting in his favor proof of the plaintiff's own act, or an act to which he was an essential party. If such evidence was admissible, a party might establish the extent of the liability of another, or the absence of liability on his part, by proving his acts with a third person, as to which the other party could produce no proof. It is clear that a party may not prove his self-serving declarations in his own behalf. Upon the same principle, we think he cannot prove his self-serving acts in his own favor. In all the cases to which our attention has been directed, where a contrary doctrine is even suggested, the circumstances were totally unlike those in the case at bar. This court decided nothing in Parmenter v. Fitzpatrick, 135 N. Y. 190, 31 N. E. 1032, or in Re Johnston, 144 N. Y. 564, 39 N. E. 643, which would justify the rulings complained of. There the proof was not of the act of a party as evidence in his own favor, but proof of his acts was given as evidence against him, and hence the present case is clearly distinguishable from the cases mentioned. Moreover, the circumstances in those cases were peculiar, rendering it difficult to prove the value under the general rule. Not so in this case. Here there was no difficulty in establishing the market value of the lumber in the ordinary way.

It is evident that the rulings of the trial court were not only erroneous, but very damaging to the defendants. With proof that the plaintiff resold the lumber at the same price, it would be quite natural for a jury to conclude that no damages were suffered by the defendants. That a vendor, after breaking his contract and becoming liable therefor, can protect himself from its consequences by proof of a resale at the same

price, is contrary to reasonable and well-established principles which lie at the foundation of the law of evidence. The self-serving acts of a party, like his self-serving declarations, ought not to be received as evidence in his own favor,-certainly not, unless under peculiar and very exceptional circumstances. A contrary rule would enable a party to manufacture evidence by a second sale at the same price; thus losing nothing, but at the same time furnishing proof which might deprive the purchaser of the fruits of an advantageous bargain. Indeed, such sales might be fraudulent and collusive; but, being private, and between parties with an interest to suppress their true character, the purchaser would be unable to establish it. We can easily imagine a case where a vendee would be able to furnish but little proof of value, and the vendor might succeed in depriving him of any remedy for his loss by evidence thus created. A rule which may be fraught with such consequences should not be maintained. It is obvious that the transaction involved in this case is surrounded by no conditions or circumstances which would justify a departure from the ordinary rule as to proving value, and that the usual method should be adopted, rather than such as necessity may have required in peculiar and exceptional cases. We think the court erred in admitting this evidence, that it cannot be said that the error was harmless, and that the judgment should be reversed. The judgment should be reversed, and a new trial granted, with costs to abide the event.

PARKER, C. J., and GRAY, BARTLETT, VANN, CULLEN, and WERNER, JJ., con

cur.

Judgment reversed, etc.

MERZBACH v. MAYOR, ETC., OF CITY OF NEW YORK.

(Court of Appeals of New York. May 1, 1900.) DISTRICT ATTORNEY'S OFFICE — EMPLOYÉS NOTARIES-RIGHT TO COMPENSATION -BURDEN OF PROOF.

1. Laws 1882, c. 410, § 55, except a notary public from the prohibition against holding more than one office. Code Civ. Proc. § 3298, declares that an officer authorized to administer oaths and take acknowledgments is entitled to fees therefor. Held, that an employé in the district attorney's office of New York was entitled, in addition to his salary, to fees for notarial services performed for the city at the request of the district attorney.

2. In an action against a city by an employé to recover fees for notarial services performed for it, in addition to the employe's regular salary, the burden of showing that such services were voluntary is on the defendant.

Appeal from supreme court, appellate division, First department.

Action by Henry Merzbach against the mayor, aldermen, and commonalty of the city of New York to recover notary fees. From

a judgment of the appellate division (45 N. Y. Supp. 1018) affirming a judgment in favor of defendant, plaintiff appeals. Reversed.

William Victor Goldberg, for appellant. John Whalen, Corp. Counsel (Theo. Connoly and Terence Farley, of counsel), for respond

ents.

VANN, J. Between June 11, 1885, and December 31, 1890, the plaintiff occupied a subordinate position in the office of the district attorney of the city and county of New York, and received the salary fixed by law for his services rendered in that capacity. During said period, at the request of the district attorney, he also rendered services as notary public, by administering oaths and taking acknowledgments required by the people in the various proceedings connected with the criminal business of the county. This action was brought to recover the fees allowed by law for thus acting as notary, and the defendant pleaded, as a distinct defense, that the services alleged, if any, were rendered by the plaintiff voluntarily, without any agreement that he was to receive payment therefor. Upon the trial, evidence was given tending to sustain the allegations of the respective pleadings. It was not denied that the plaintiff in fact rendered the services at the request of the district attorney, and that they were necessary in the transaction of his official business; that some of the fees sued for were collected and retained by the city when judgments were paid; that the district attorney had authority to incur such expenses; and that an appropriation was made each year for the payment thereof through the comptroller. In June, 1885, the plaintiff, as he testified, told the district attorney then in office that one of his bills for services as notary, which had been duly approved, had been rejected by the comptroller, and that the district attorney answered: "You ought to get paid. You are entitled to it." After this he opened an account with the city, and rendered bills repeatedly; but the comptroller refused to pay them, even when they had been approved by the district attorney or under his direction. It was his custom to send in a bill once or twice a year. During the first three years, while he was messenger for the district attorney, his charges amounted to less than $5, but during the last three, while he was librarian, they amounted to over $370. There was no controversy as to the amount or the accuracy of his charges. He testified that he told the district attorney and his successor that he should charge for his services, and no objection was made by either. Subsequently, his bills, although duly approved in some instances, were repudiated by the comptroller, including a portion of those involved in this action. The duties to which the plaintiff was assigned as messenger and librarian did not include the ren

57 N.E.-7

dition of services as notary. There was no arrangement when he entered the office that he was to take affidavits and acknowledgments, either with or without compensation. The district attorney testified that he had no recollection of authorizing payment for notary's fees, and that the custom in his office was not to pay such fees to salaried officers. It did not appear that the plaintiff was appointed notary through the influence or upon the recommendation of the district attorney, or as a convenience to the latter. Each alternate year, when reappointed by the governor, he paid from his own means the fee of $10 required by law upon filing his official oath with the county clerk. Laws 1892, c. 683; Laws 1893, c. 248; Laws 1894, c. 88. The only question submitted to the jury, as stated by the trial judge in his charge, was "whether there was an express or an implied contract on the part of the district attorney, representing the city, that this man should have, not only the salary the city had agreed to give him, but extra compensation for those affidavits. That is the question I submit to you, and on that the determination of this case must hinge. That is the pivot on which it turns, and which must control its final disposition." The jury found for the defendant, the appellate division affirmed,-two of the justices dissenting,-and the plaintiff comes here. Upon the first trial the plaintiff succeeded, but the judgment was reversed for a reason that has no application to the present appeal. Merzbach v. City of New York, 10 Misc. Rep. 131, 30 N. Y. Supp. 908.

The trial court instructed the jury, in substance, that unless they found there was an agreement, express or implied, that the plaintiff should be compensated for his services in taking affidavits and acknowledgments, in addition to the salary he received, they should find a verdict for the defendant, to which the plaintiff excepted. At the request of the counsel for the defendant, the court further charged "that the burden is on the plaintiff on all the issues," and the plaintiff again excepted.

Two issues were joined by the pleadings, the first of which, tendered by the plaintiff, was whether he rendered the services in question at the request of an officer authorized to contract for the same. The second, tendered by the defendant, was whether the services were rendered voluntarily, with no agreement that they were to be paid for. This was an affirmative defense, in the nature of a confession and avoidance. The burden of proof is on the party who tenders the issue, because he who affirms must produce the proof to sustain his affirmation. The one who denies may rest on the weakness of his opponent's evidence, but the one who affirms must rest on the strength of his own evidence. As to the allegations of the complaint, the burden of proof was upon the plaintiff, and, as to the affirmative defense pleaded in the answer, the

burden of proof was upon the defendant. Thus, each party had an affirmative issue, to maintain, as each alleged the facts tendering the issue, which made a burden remaining throughout the trial. "Ei incumbit probatio, qui dicit, non qui negat," is a maxim both of the civil and the common law, which applies to this case. The test is, which party must touch the issue first, or which will prevail thereon if no evidence is given? Clearly, upon the issue tendered by the complaint, the defendant must have succeeded, and upon that tendered by the answer, the plaintiff, if no evidence had been introduced relative thereto.

The plaintiff held two public offices at the same time, but, as neither was incompatible with the other, he was entitled to the emoluments of both, so long as he was permitted to hold both. The consolidation act expressly excepts the position of notary public from the prohibition against holding more than one office. Laws 1882, c. 410, § 55. As the functions of a notary public require no time, to speak of, they could be performed by the plaintiff without interfering with his duties as messenger or librarian. The defendant, for whom he rendered services in that capacity, was liable to him for the legal fees, not by virtue of a contract, but by operation of law. Fitzsimmons v. City of Brooklyn, 102 N. Y. 536, 7 N. E. 787. By force of the statute, any officer authorized to administer oaths, take acknowledgments, and certify the same, is entitled to certain fees therefor. Code Civ. Proc. § 3298. The plaintiff was such an officer, and was entitled to the fees, unless he waived his right thereto, either expressly, of which there was no evidence, or impliedly, of which there was some evidence. As he actually rendered the services at the request of an officer authorized to bind the defendant for the expense thereof, he was entitled to recover the legal fees, unless the defendant established a waiver. 1 Rev. St. p. 385, § 3; Consol. Act, § 27. Those services were not incidental to his duties as messenger or librarian, but were wholly independent thereof. When he was requested to act as notary, he was not asked to discharge a duty required by his appointment to a local office by the district attorney, but one due from him as a state officer under the appointment of the governor. People v. Rathbone, 145 N. Y. 434, 40 N. E. 395, 28 L. R. A. 384. There was no connection between the two offices, which were distinct in their origin and nature, as well as in the compensation attached thereto. If extra duty, however onerous, had been imposed upon the plaintiff as messenger or librarian, he would not be entitled to additional compensation therefor, because a public officer with a fixed salary is bound to perform the duties of his office for the compensation provided by law. Const. art. 3, § 28; Hatch v. Mann, 15 Wend. 45; People v. New York Sup'rs, 1 Hill, 362. If his powers or duties are increased, even by statute, and his salary is untouched, he must submit or

resign. 1 Dill. Mun. Corp. (4th Ed.) 233; 1 Beach, Pub. Corp. § 170. The plaintiff does not claim extra compensation as librarian, but ordinary compensation as notary. His services as notary were not, and could not be, rendered by him as librarian. They did not belong to the latter office; for, acting in that capacity, he could not perform them. The district attorney could not direct him, as líbrarian, to take an acknowledgment, and as notary he had no control over him. In that capacity he was not a subordinate, but an independent officer, acting wholly upon his own judgment, solely responsible for his own negligence, and entitled to compensation, in the absence of an agreement to the contrary, the same as if he had held no other office. When he acted as notary, he rendered a servfce which had no connection or affinity with any power or duty of his other office. Converse v. U. S., 62 U. S. 463, 16 L. Ed. 192. There was nothing in common between the two offices; for the line of separation, both as to power and compensation, was as distinct as if they had been held by different persons. While the situation of the parties was such as to require slight evidence to establish an implied agreement that the plaintiff was to make no charge for acting as notary, the evidence presented a question of fact which was so close that three juries have disagreed in relation to it. The burden of proof, according to the pleadings, as well as the undisputed facts, rested upon the defendant to show that there was an understanding between the parties that the plaintiff should not charge for his services. Smith v. Railroad Co., 102 N. Y. 190, 192, 6 N. E. 397. The jury, however, were instructed, in substance, that the burden was on the plaintiff to establish an agreement that he should be paid, whereas they should have been instructed that the burden was upon the defendant to establish an agreement that he was not to be paid. The charge of the court as to the burden of proof deprived the plaintiff of an important legal right, which is presumed to have affected the verdict, and the judgment appealed from should therefore be reversed, and a new trial granted, with costs to abide the event.

GRAY, BARTLETT, MARTIN, CULLEN, and WERNER, JJ., concur. PARKER, C. J.. not sitting.

Judgment reversed, etc.

PEOPLE ex rel. GRANNIS et al. v. ROBERTS, Comptroller.

(Court of Appeals of New York. May 1, 1900.)

MANDAMUS-GROUNDS FOR WRIT-STATE-AUDITING OF CLAIMS.

1. A state comptroller cannot be compelled by mandamus to audit the claims against the state in any particular way or for any particular amount.

2. By a series of legislation since 1883, including the state finance law of 1897, the state comptroller has been, with the exception of one year, and is, empowered to audit canal claims against the state, and the latter act (Laws 1897, e. 413), providing that the comptroller shall audit all claims against the state if payment out of the treasury is provided for by law, and the provision in Laws 1895, c. 79, § 5, and Laws 1896, c. 794, § 5, that contractors on the state canal shall be paid upon the certificate of the state engineer, cannot be construed to take from the comptroller such duty.

Vann, J., dissenting.

an opportunity to secure a pretended contract; that because of such fraudulent conduct the treasury of the state has been and will be depleted, and the funds of the state wasted;" and the return concluded with a prayer that the court declare such contract illegal and void. An alternative writ of mandamus was granted, and the issues were brought on for trial before a referee, the attorney general in person representing the comptroller with marked ability. It was shown that the rock excavation was not worth to exceed $1 per

Application by Charles W. Grannis and William T. O'Connor for mandamus against James A. Roberts, as comptroller of the state of New York. From a judgment of the appellate division (61 N. Y. Supp. 148) affirming an order granting the writ, defendant appeals. Reversed.

T. E. Hancock, for appellant. Frank Hiscock, for respondents.

PARKER, C. J. The fact having been brought to the attention of the comptroller that the relators, Grannis and O'Connor, had made what is known as an "unbalanced bid" for the doing of certain work between locks Nos. 61 and 62 on the western division of the Erie Canal, he declined to pay the full amount of the drafts drawn upon him in behalf of Grannis and O'Connor, refusing to accept and pay such part of the drafts as represented about the sum of $30,000. Thereupon relators instituted this proceeding for the purpose of obtaining a mandatory order of the court requiring the comptroller to accept the drafts and pay the same in full. The comptroller, in his return to the writ, set up, among other things, that the state engineer omitted to comply with the command of the statute, in that he did not estimate or ascertain with any accuracy whatever the quantity of rock excavation necessary to be done upon that portion of the canal affected by the Grannis and O'Connor contract, putting in the specifications 100 yards as the quantity of rock excavation, whereas the rock excavation was, in fact, more than 30,000 yards; and this led to a bid on the part of the contractors to excavate rock for $3 a yard, which, on the basis of the contract, would amount to $300, whereas, in truth and in fact, down to the time when the comptroller refused to pay any more on the drafts, the so-called "rock excavation" already amounted to $90,000. The return further charged that the relators well knew at the time they signed the contract that there were a great many thousand yards of rock excavation to be done, and, further, that "there was no lawful competition among the bidders for said work, and the purpose of the law was thwarted, and the contract was not let to the lowest responsible bidder, as the law requires, but was let to the persons alone who, by deceit, concealment, and fraud, had

mitted to stand, the relators were entitled to $3 per yard, so that for the 30,000 yards of rock excavation that had been done, worth $30.000, relators would receive $90,000, or $60,000 more than the work was fairly worth, -a result which was fittingly characterized by the comptroller in his return as a waste of the funds of the state. Now, no one pretended on the trial that the taking of this $60,000 could be justified on any other principle than because "it is so nominated in the bond," and so the real controversy before the referee was whether the contract was tainted with fraud, and therefore void. The attorney general contended that it was, and he found evidence tending in that direction in the fact that the state engineer had failed to comply with the statute requiring him to state in the specifications and in the contract the amount of rock excavation required, coupled with the fact that one of the firm of the relators had been over the work, and knew, at least, that there were a great many thousand yards of rock excavation, if he did not know exactly how many there were, prior to the execution of the contract. While it was admitted that the state engineer did not put the correct number of yards in the contract and specifications, it was testified to that he did cause the survey to be made, and did ascertain the quantity of rock excavation necessary, in advance of advertising for bids, and the excuse offered for putting in 100 yards instead of 40,000 yards (for it seems there is still about 10,000 yards of rock excavation to be made) was that the estimates were in the division engineer's office at Rochester,-an excuse which would have had more value when the canal was first built than now, when the space between the two cities can be covered at the rate of nearly 60 miles an hour. While the contract was executed by the superintendent of public works, he had a right to rely upon the estimates made by the state engineer, and there is no hint in the record that he either suspected, or had reason to suspect, that the estimates contained in the specifications and contract had not been placed therein by the state engineer in strict conformity with the demand of the statute. The result of the trial was a finding by the referee that there was no collusion between the contractors and the state engineer by which this contract was brought about, and no fraud attending the execution of a contract that has

proved so helpful to the pockets of the contractors and correspondingly depleting to the treasury of the state; and, that finding having been, in effect, affirmed by the appellate division, we are without authority, under the constitution, to consider the question of fraud at all, and come now to an investigation of the contention of the attorney general that, the comptroller having the authority to audit the claims against the state, including the canal claims, and having audited these claims, he cannot be compelled by mandamus to decide in any particular way, or to audit the account in the amount claimed by the relators. In other words, that, having audited the first draft of $43,794 at $27,846, and the second draft of $38,727 at $23,703, the court cannot now say that he should have audited at the full amount, and by mandamus compel him to do it; for that writ never issues to require the performance in a specified way of a discharge of a duty involving the exercise of judgment or discretion. This, of course, cannot be gainsaid, if the comptroller possessed the authority to audit, and whether he did must be the subject of our next inquiry.

In the first place, it should be noted that the constitution contemplates that the moneys of the state should not be paid out without an audit, and the legislature is deprived of the power to audit. Const. art. 3, §§ 19, 21; art. 7, § 6. Two facts must exist before any of the funds of the state can be paid out: First, an appropriation by the legislature; and, second, an audit by such authority as the legislature may create for the purpose. The legislature in this case appropriated the moneys, which were the proceeds of certain bonds of the state, for the payment of canal claims, and it was its further duty to provide for an audit of such claims, unless the authority to audit already existed. It is suggested that it was provided that the state engineer should be the auditor for the canal claims arising during the expenditure of the $9,000,000 appropriation, but it is difficult to find in section 5 of chapter 79 of the Laws of 1895, and section 5 of chapter 794 of the Laws of 1896, satisfactory evidence that the legislature intended to take away from the auditing officer of the state this important duty,-a duty in harmony with his general work,and to confer it instead upon an officer who has never in the history of the state been treated as a fiscal officer in any sense. section does not contain the word "audit," nor refer to the superintendent of public works, except to direct that officer to pay the contractor or contractors upon certificate of the state engineer, stating the amount of work performed and its total value. These administrative duties were necessarily conferred on the state engineer, and are entirely consistent with the general practice of the state to have the final audit made by the comptroller, and we should not hold that he has been deprived of that power unless the language employed by the legislature is free from doubt upon

The

the subject, and that, I think, no one will be willing to say who examines the legislative history of the state, so far as the subject of audits is concerned. The legislation of the state, from the first session down to the present time, has provided for the auditing of accounts by some state officer. At the first legislative session it was provided that accounts against the state should be audited by the auditor general. Laws 1778, c. 35. In 1782 an act was passed providing for the appointment of an auditor, whose duty it should be "to audit, liquidate and settle all accounts now subsisting, or which may hereafter arise between this state and any other person or persons whatsoever." Laws 1782, c. 21. In the year 1797 an act was passed providing for the appointment of a comptroller, who "shall do, perform and execute all matters and things whatsoever required by law to be done by the auditor-general of this state, # * * and to examine and liquidate claims against this state in all cases in which provision is or shall be made by law." Laws 1797, c. 21. The duties of the comptroller, as expressed in the state finance law (Laws 1897, c. 413), are (1) to superintend fiscal concerns of the state; (2) keep, audit, and state all the accounts in which the state is interested; (3) keep correct and proper books, showing their condition at all times; and (4) examine, audit, and liquidate the claims of all persons against the state, if payment thereof out of the treasury is provided for by law.

As at certain periods of time the power to audit canal claims has been conferred upon other officers, an investigation of the legislation in that direction becomes necessary in order to ascertain whether that power is at present in the comptroller. In the early history of the canal system of the state, the canal board and the commissioners of the canal fund had the control of the expenditure of the moneys relating to the canal, but the power of audit was lodged in the comptroller. Among other things, the commissioners of the canal fund were authorized to advance to the superintendents moneys for the necessary work upon the canals, but the statute provided that "each superintendent shall, as often as once in sixty days, render his account to the comptroller, who shall audit the same." The papers connected with the management of the canal were required to be filed in the office of the comptroller. In the year 1833 an act was passed providing for the appointment of a second deputy comptroller, who was specially authorized to perform any duties of the comptroller in relation to canals, except as a commissioner of the canal fund, and that act also provided that all papers relating to the canals should be deposited in the comptroller's office. Laws 1833, c. 56. In the year 1840 an act was passed which, among other things, provided for the appointment of a chief clerk by the commissioners of the canal fund, who should receive the compensation and possess