failure to connect the leader with the is proved, to show that without fault on sewer, and of the condition of the street, his part, the same damage would have re flowed into the cellar of the building and sulted from the negligent act of another. through the foundation wall into the 38 N. Y., 260. premises occupied by plaintiffs, and damaged their goods.

N. Y. SUPREME COURT, CIRCUIT. The People v. William M. Tweed and was through the negligence of M. & B., the Mayor, Alderman and Commonalty in failing to have the area completed, and of the City of New York. as it was impossible to determine in what proportion the water which came from the roof, and that which came from the street contributed to cause the damage, defendant was liable.

Motion by defendant Tweed, at the close of the evidence, to dismiss the complaint as to certain items of the plaintiffs' demand, and also as to all the causes of action.

Mr. David Dudley Field, and Messrs. Field & Deyo and Mr. Edelstein, for the left., Tweed.

Messrs. Charles O'Conor, James C. Carter and Wheeler H. Peckham, for the pltffs.

Westbrook, J:

sent false and fictitious claims and accounts for their own benefit and in regard to the pretended accounts of certain individuals specified in the schedule to the complaint, the gross amount of which is over $6,000,000; such conspiracy was actually accomplished, the money obtained from the treasury, and converted to the use of such conspirators. For the amount thereof ($6,198,957.85) with interest thereon from the first day of September, 1870, judgment is demand d against the defendant Tweed, together with the costs of the action.

This suit has been instituted, and is Bought to be maintained by force of the provisions of chapter 49 of the laws of It is scarcely necessary to inquire 1875, entitled "an act to authorize the whether each and every averment of the people of the State to bring and maintain complaint is sustained by proof to the certain actions for the recovery of public extent charged. Without expressing, at moneys, and property," and the general this stage of the cause, any opinion upon scope of the complaint may be thus the force of the evidence offered to estabstated: Section 4 of chapter 382 of laws lish the material allegations, which have of 1870, entitled "an act to make further been substantially recited, it is sufficient to provisions for the government of the observe that the positive testimony of AnCounty of New York," provided that "all drew J. Garvey, James H. Ingersoll, John liabilities against the County of New Garvey, John H. Keyser, George S. Miller York incurred previous to the passage of and John Kennard of conversations with this act, shall be audited by the Mayor, Tweed and others, of acts and divisions of Comptroller, and the President of the moneys, and of additions to and swellings Board of Supervisors, and the amounts of bills, make questions for the jury, which are found to be due shall be pro- whether or not the complaint is not subvided for by the issue of revenue bonds stantially maintained in some particulars of the County of New York, payable dur- at least. It is, however, strenuously maining the year 1871, and the Board of tained that there is no proof whatever Supervisors shall include in the ordinance tending to show that any part of the bills levying the taxes for the year 1871, an in favor of Archibald Hall, Jr., A. W. amount sufficient to pay said bonds and Lockwood, The New York Printing Comthe interest thereon. Such claims shall pany, The Transcript Association, The be paid by the Comptroller to the party Manufacturing Stationers, J. W. Smith, or parties entitled to receive the same C. H. Jaenbus and E. Manener, for the upon the certificate of the officers named payment of which warrants, amounting to therein." After referring to this pro- $611,076.40, were issued, was false, and vision of the act, the pleading charges that consequently the moneys paid therethat the defendant Tweed, who was the on cannot be recovered in this action. It chairman of the Board of Supervisors is true that no witness has directly testireferred to therein, instead of performing, fied to the falsity of the charges made together with his associates, the duties thereon, but there is sufficient evidence to imposed upon him of a faithful audit of justify the submission of these items to bills presented, conspired with one James the jury. None of these bills were audited Watson and others, fraudulently to pre- in the manner prescribed by the act of

1870, so far as the evidence shows. There that in judgment of law the money obis no testimony evincing that the Board | tained therein is still in the County Treasof Audit created by said act, of which ury. In deciding this point, I must asMr. Tweed was one, ever met as such to sume the correctness of the plaintiff's alpass upon such claims; on the contrary, legations and positions upon the facts, for there is some affirmative proof to show it is impossible for me now to say, that it never met, and that instead of an in- the jury will not so find, and if I decide vestigation of each bill presented at the upon the assumption that they will find only meeting which said Board ever held the facts in favor of the defendant, they (May 5th, 1870), it adopted a resolution, will then be deprived of the right to dewhich substantially declared that its termine these matters which the law comduties would never be discharged, and mits to them. Assuming that the enresolved that every bill collected by the dorsement of the name of the payee upon County Anditor from the various com- these warrants is forged, the question is mitttees of the Board of Supervisors for not before me whether a remedy does or liabilities incurred prior to April 26th, does not exist against the bank, but 1870, should be audited and allowed whether when the money has been actuby such Board of Audit, provided it was ally taken from the treasury of the councertified by the Clerk or President of the ty, the remedy does not exist against the Board of Supervisors that such bill had taker. The warrants were not drawn been authorized by said Board or its ap- upon the Broadway Bank, but upon the propriate committee. The bills in our County Treasurer at the bank. They considering were verified by no oath or were paid by the Treasurer through the affirmation, and no judgment of the bank, the payment recognized by, and Board of Audit was ever, so far as ap- charged to the Treasurer. If the jury pears, exercised in regard to them or any find that the conspiracy to defraud existof them. In addition to this, evidence ed, then as the act of one conspirator in has been given tending to show that a furtherance of the common object is the percentage to various parties, Mr. Tweed act of each, each finding involves the among others, was calculated upon these further facts that Mr. Tweed, himself, bills, and that 25 per cent. of the amount forged the papers named, and himself obthereof was actually paid to the defend- tained the money. Will it do to hold that ant. The force of the evidence to which the county cannot recover from the forger I have referred, and the conclusion to be and the wrongful taker of its money the drawn therefrom, is for the jury. As they fruits of its crime, because it has also a are ultimately to pass upon all questions remedy against its agent who paid its of fact it would be improper to discuss money in good faith to the party who this point any further. There is enough wrongfully deceived it? Is not the conto submit these items of the plaintiffs clusion obvious? claim to those, who under our theory of jurisprudence, make the body to determine issues of facts.

It is further objected that warrants issued to J. A. Smith, C. D. Bollar, Keyser, Davidson, Halsey & Co., and A. G. Miller, amounting to $2,078,471 38, were never endorsed by the payees, and that consequently the money, which the Broadway Bank paid, was improperly paid, and

It is further urged that John H. Keyser, Andrew J. Garvey, Richard B. Connolly, James H. Ingersoll, and the estate of James Watson have been released from liability, and as they were co-conspirators with the defendant, Tweed, their release, or the release of either, discharges all. It is not urged that either Keyser, Garvey, Ingersoll or Connolly has paid any money, or obtained a formal release from any per

son. The most that can be said is that It is also urged upon the part of the decertain influential citizens, who have been fendant that the act of 1875, which auconspicuous in these prosecutions, have thorizes the people to bring this action, promised them protection. It would hard-and that despite the pendency of any othly be argued that if either should be pro-er action, "by or on behalf of any public secuted, any defence upon the ground of authority other than the State," is uncona release could be pleaded. No person stitutional for various reasons. Time will authorized officially to make a promise not allow me adequately to discuss the has made any, and the entire absence of questions which this point involves, and consideration would make any a nudum which have been so ingeniously argued pactum, if made. In Frink vs. Green (5 and presented in the printed brief which Barbour, 445) on page 459, the court, by the learned counsel for the defendant has Paige, P. J.. says: "A release of one of presented. Undoubtedly these are grave two or more joint debtors, whether bound questions to be hereafter considered. I jointly, or jointly and severally, discharges have had occasion to disenss them in part the orignal contract, and may be pleaded in People vs. Field (Albany Special Term, in bar of an action on the contract. But October, 1875,) and to that opinion I rethe release, to have this effect, must be a fer. Were my own views in accordance technical release under seal (De Zeng vs with those of the counsel of the defendBailey, 9, Wendell 336; Ronley vs Stod-ant, I would not, even then, be able to foldard, 7 John. 207;4 Wend. 365). A cove- low them. Upon the appeal from the ornant not to sue one of the joint obligors der refusing to vacate the order of arrest or promisor; does not amount to a release, in this cause, the General Term of this but is a covenant only. It does not, at District, has passed upon this question. law, discharge either of the joint obligors The opinion was written by Judge Danor promissors, and a suit may, notwith-iels, and concurred in by his associates. standing such covenant, be brought upon the original contract against all, if it was a joint contract, and against the one to whom the covenant was not given, if the contract was joint and several. (7 John., 210; Hosack vs. Rogers, 8 Paige 237). An agreement not to sue one of several joint debtors does not injure the other debtors. It does not defeat the right of the debtor sued to compel contribution from his co-debtors. It is not in the power of the creditor to alter the law between joint debtors. (Catskill Bank vs. Messenger, 9 Cowen. 38, per Savage, Ch. J)."

In regard to the estate of James Watson, it is conceded the recovery was for demands not embraced in this action, and whilst Mr. Keyser has placed property in the hands of a trustee to s cure the city, such deposit was his own act, and no part thereof has been in the hands of any sity official.

(See printed papers on appeal to Court of Appeals, folio 422 to 429). That decision is binding upon me, and must be followed. If wrong it must be elsewhere corrected; it is beyond my power.

It is further urged that the Board of Audit was judicial, and that no action can be maintained against a judge for acts done in that capacity. This is undoubtedly the rule, but the proposition assumes the point to be proved. The Board of Audit was undoubtedly called upon to exercise judicial functions, and Mr. Tweed, if he had acted as a member might, if a reason, presently to be stated, did not divest him of that character, be deemed a judge. But he did not, his functions were never exercised; instead thereof, as the evidence of the plaintiffs tends to prove and which the jury must decide, he corruptly agreed to make bills. On this ground, the General Term in this very case (see opinion of Daniels before re

6

ferred to, folio 413 to 418) held this action these facts, which were established by maintainable. But another reason also the papers produced on the application influences me. If the evidence of the for the order rendered the defendant plaintiffs is true, when these bills came Tweed, and those co-operating with him before the Board of Audit (if the Board joint wrong-doers, and as such liaever did meet), Mr. Tweed, and Mr. Con-ble for the entire loss produced by the nolly were both interested. The bills had acts complained of. That results from all been increased to give them a per the execution of the fraudulent combinacentage. The revised statutes of our tion in which he appears to have been the State (2 Vol. Edmonds Edition page 284, controlling individual, and in that state sec. 2) declare: "No judge of any court of the case the law will impose upon him, can sit as such, in any cause to which he individually, a liability co-extensive with is a party, or in which he is interested, or the moneys wrongfully abstracted, alin which he would be excluded from be- though they may have been partially ing a juror by reason of consanguinity or received by others acting with him." If affinity to either of the parties." the evidence of the plaintiffs be true, the case is presented not only of an advisor of an overdraft, which the counsel for defendant put, but that of a person who has advised the overdraft, ordered it himself and distributed the proceeds. Can there be a doubt as to the rule in such a case? The damage which the wrong has caused can be recovered, even though the party did not receive all its fruits; but what is the damage? Can it be argued that a wrong caused the county to pay that which it justly owed; and can the defendant be asked to reimburse the sums which have been paid to extinguish honest debts? The argument which maintains the affirmative of this proposition assumes that the county has been damaged by the payment of that which could not have been legally enforced, and that what was owing to a party was obtained by fraud. The proposition contradicts itself, and states an impossibility. The fraud consisted in the additions to honest demands, and in this, as in all cases of a similar character, the recovery must be limited to the injury. The purchaser who retains property, the qualities of which have been fraudulently misThe remaining question is, what dam- stated, recovers the difference between ages can the plaintiffs recover, if any? the value of the property as it is, and That was also answered by the General what it should have been, if the stateTerm in this case. It was there (see folio | ment made at the time of the purchase 413 of papers below referred to) said, was true. And he, who has paid a bill

It has been held both in the Supreme Court and in the Court of Appeals (Oakley vs. Aspinwall, 3 Comstock, 547; Schoonmaker vs. Clearwater & Wood, 41 Barbour, 200, the latter case being affirmed in Court of Appeals under name of Chambers vs. Clearwater, 1 Keyes, 310; that when the judge is disqualified under this section, he ceases to be a judge. Tweed and t'onnolly, if the plaintiff's case is true, were not only corrupted by the payment of money, but were "interested" in the very claims upon which they were to pass. If under such circumstances they undertook to act, they could not, neither de facto nor de jure. The statute prohibited their sitting as judges. Its language is "no judge of any court can sit as such." They took from their shoulders the judicial ermine and its protection, when they became interested in the accounts to be presented. Their judgment was no judgment, their action no action, it was utterly coram non judice, and the judicial immunity is invoked in vain, because they were not judges; that, under the statutes of New York, was a legal impossibility