will be so construed in order to enforce a right. People ex rel Otsego Bank v. Board of Supervisors, 51 N. Y., 401. That because the Board audited the claim plaintiff was not from that fact entitled to have the tax levied and collected, for the authority conferred by the act is entire, and the exercise of one part does not of itself confer a right to demand the exercise of the other part. That the fact that the Supervisors adopted a report of a committee recommending that the Board award a sum therein stated to the claimant, on certain conditions, was not a final and conclusive audit of the same, and the plaintiff has not complied with the conditions. The demurrer admits the truth of the facts stated in the return. The judgment on the demurrer affirmed, with costs. Opinion by Gilbert, J.; Mullin, P. J. and Smith, J., concurring. under chapter 40, laws of 1848, which Geo. W. Weiant. for respts. Held, Error; that the nature of the PLEADINGS. MISJOINDER. CAU- uniting them in the same action. SES OF ACTION. N. Y. COURT OF APPEALS. Wiles, et al., respts. v. Suydam, applt. Decided February 8, 1876. In an action against a stockholder to recover the amount of a judgment against an insolvent corporation, on ground of failure to pay in his stock, and because no certificate of the pay ment of capital stock had been filed; a cause of action, seeking to recover against defendant as a trustee of the corporation, for neglect to make and publish the report required by law, cannot be joined. The fact that the allegations as to both grounds were mingled in one count, does not deprive defendant of the right to demur. This action was brought to recover the amount of a judgment against a manufacturing corporation, organized The complaint contained but one count, composed of series of allegations. Held, That the omission to state the causes of action in separate counts, properly numbered, did not deprive defendant of the right to demur. Judgment of General Term, affirming judgment, overruling demurrer, reversed. Opinion by Church, Ch. J. SAILING RIGHT. SALE OF PHILADELPHIA COMMON PLEAS, No. 2. Williams v. Ireland. Decided April 8th, 1876. The rule that the sale of an interest in a vessel by a part owner, who is also a master, carries no right to the command, is founded on the policy of the law, and a contract to sell the owners of more than half the vessel that command, even by the owners of a Captain Smith should have the commajority interest, is incapable of en-mand of her on half shares—the same forcement. Any contract that fetters the judgment of the owners, or binds them to the selection of a particular person, is in violation of the rights of the other parties, whose property or lives are involved in the voyage, and therefore void. terms on which she had been sailed by defendant, in which consent, however, plaintiffs did not join. The foregoing facts were agreed upon by both parties, and also that plaintiffs at the time of the sale were owners of Where a master, who is also part owner, one-fourth of the vessel-proof as to sells his share and transfers the com- the other one-sixteenth named in the mand to his vendee, the latter takes bill of particulars having failed, and only an expectancy that he will be that much being abandoned by plaintiffs' allowed by the owners to retain the counsel. The only contested facts in command, and whatever he pays for this expectancy is a profit to the the case were how much of the $4,500 former master for his relinquish- paid by Smith was for the personal proment of the command, and not any perty, and whether the rest of the purpart of the ship's earnings, in which chase money was more than the value the other owners are entitled to share. of the share of the vessel, and was paid This was an action of assumpsit, and to the defendant partly as compensation the declaration contained the common for his transferring to Smith the comcounts only. The bill of particulars mand of the schooner with the consent claimed the sum of $468, "being the of a majority of the owners. Upon 5-16ths of the amount received by the these questions the case went to the defendant while acting as managing jury with instructions to find a verdict. owner of the schooner Archer & Reeves for plaintiffs for one-fourth of whatever (of which plaintiffs were the owners of 5-16th parts) in consideration of installing one B. C. Smith as master of said schooner, and permitting and selling to the said Smith the right to sail and manage said schooner, and to receive and keep for his own use and profit the one-half of the net earnings of said schooner." they should find, if anything, was paid as compensation for such transfer of the command; and the question was reserved whether plaintiff's as part owners were entitled by law to recover any share of such compensation. The jury found that part of the money paid by Smith was for the transfer of the com mand to him by the defendant, and their verdict was accordingly for plain. tiffs for $371,05; and the question is, whether under the facts thus agreed upon or found by the jury, the plaintiff's are entitled to recover. At the trial it was proved that defendant, being the owner of one-eighth of the schooner, and being at the same time master and managing owner, sold to Captain Smith his (defendant's) oneeighth share and certain personal proHeld, There is no such thing in genperty on board the schooner, and also eral as a sailing right which binds the transferred to him the position of mas- owners of a vessel; that the sale of the ter, receiving from Smith the sum of command is only an expectancy that the $4,500. Before the transfer defendant owners will permit the purchaser to obtained the written consent of the continue, and therefore he acquires no right which can be the subject of a con- The power to enact and enforce ordisideration paid. nances has always formed an essential feature in the creation of municipal corporations. The legislature may confer the power upon the Common Council, or any of the departments of the municipal government. Certiorari to the Court of Special Sessions on the conviction of the relator of a misdemeanor. The rule that the sale of an interest in a vessel by a part owner, who is also master, carries no right to the command, is founded on the policy of the law, and a contract to sell the command, even by the owners of a majority interest, is incapable of enforcement. The reason is, that it is the right and for the interest Patrick Cox, was, on the 16th day of of all parties concerned, the owners, the February, 1876, at Special Sessions, charterers, the crew and the passengers, convicted of the misdemeanor of keepthat the master should be selected solely ing and offering for sale at No. 119 for his fitness, and should be removable Mulberry street, in the City of New at any time. Any contract that fetters York, watered and adulterated milk, in the judgment of the owners, or binds violation of certain sanitary ordinances them to the selection of a particular of the Board of Health, and was senperson, is in violation of the rights of tenced to one month in the Penitentiary. the other parties, whose property or lives are involved in the voyage, and therefore void. The plaintiff in error, alleges that there is n t sufficient evidence to warrant a conviction, because it was not established on the trial, that he ever owned said grocery business, or ever sold or offered for sale any milk at said store, or at any other place. That the acts of the legislature empowering the Board of Health to enact sanitary ordinances is unconstitutional and that it did not appear by the return that the persons before whom the relator was tried, were the officials having the powerto hold the court. This rule is well established, and one of its results is, that where a master, who is also part owner, sells his share and transfers the command to his vendee, the latter takes only an expectancy that he will be allowed by the owners to re. tain the command, and whatever he pays for this expectancy is a profit to the former master for his relinquishment of the command, and not any part of the ship's earnings, in which the other owners are entitled to share. The ordinance of the Board of Health plaintiffs have no cause of action. declares, "That no person shall have Judgment is therefore entered for the "at any place where milk and butter defendant on the point reserved. Opinion by Mitchell, J. The SELLING ADULTERATED MILK. Patrick Cox, plff. in error, v. The People of the State of New York, defts. in error. Decided March 31, 1876. reads as follows The Board should nance in question. It was merely the exercise of municipal authority, through the intervention of this Board instead also be "authorized and empowered to "add to such sanitary code, from time "to time, and shall publish additional of the Common Council. "provisions for the security of life and The fact that the return is prefaced "health in the city of New York ***with the statement that the aforesaid per “which shall be published in the City sons who tried the relator, are the Police "Record. Any violation of said code, Justices and the Justices of the Court. "shall be treated and punished as a of Special Sessions, and besides the fact "misdemeanor, and the offender shall that the writ was issued to them as Po"also be liable to pay a penalty of fifty lice Justices and Justices of the Court. "dollars, to be recovered in a civil action of Special Sessions, is sufficient answer "in the name, &c." to the objection that it nowhere appeared that the officials before whom the relator was tried had power to hold the Court. Opinion by Davis, P. J.; Daniels and Brady, J. J., concurring. LIFE INSURANCE. ACT OF GOD. Wilson S. Wolf, for relator. W. P. Prentice, for respts. Held, The power to enact and enforce ordinances, has always formed an essential feature in the creation of municipal corporations, and the constitution contains nothing restricting its exercise to any particular part of the municipal body. It may be conferred upon the Common Council, or any other department of the municipal government, as the necessary result of the plenary au- A thority secured by the constitution to the legislature. That the legislature could confer it upon the corporation is very clearly settled by an unbroken weight of authority. 2 Daly, 307; 4 Meeson & W, 621, where it was held that corporate by-laws, enacted by authority, have the same effect within these appropriate limits as an act of parliament. Id. 640; 3 Allen. The practice on the other hand has long existed by which the power has been conferred upon boards of health. And it has not been limited to the cases of large cities. The power of the legislature over the subject has not been denied by the constitution, and the conclusion necessarily follows that it could, as it has, delegate to the Board of Health of the city of New York the power to make the ordi NEW YORK COURT OF APPEALS. Evans, applt., v. The United States Life Insurance Company, respts. Decided February 25th, 1876. life policy containing a clause making it void if the insured went south of certain limits without the consent of the company, is invalidated by the continued stay of the insured south of such limits, whither he went under consent of the company for a prescribed period. And where the company's officers, after such forfeiture, declined to receive further premiums unless 24 per cent. more was paid to cover the additional risk, and gave plaintiff's agent till next day to pay, agreeing to keep the policy in force and give credit for the premium and percentage, they have the right to abandon their agreement, and to refuse to receive the premium and percentage, and declare the policy forfeited. That the insured was ill, and that it was highly inconvenient for him to return, affords no ground for relief, unless it appear that he was actually unable to travel, even by short stages and at great expense. This action was brought upon a poli- | 28th 1870, and had the right on the cy of life insurance, which contained a 29th to refuse to receive the money and clause, that if the insured, without the written consent of the insurer, should, "between the 1st of July and the 1st of November, visit those parts of the United States which lie south of the southern boundaries of Virginia and Kentucky, this policy shall be void." In November, 1869, the insured went to Louisiana, and remained there until he died, March 18th, 1872. He had the written permit of defendant to go to New Orleans and remain until July 1, 1870. On Oct. 28, 1870, plaintiff's agent went to defendant's office and offered to pay the annual premium and tendered the amount to defendant's officers. They declined to receive it on account of the residence of the insured in the south, unless he would pay 23 per cent. more on the amount insured. The agent stated he could not do this without the authority of his principal and the officers agreed to continue the policy in force, and give credit for the premium due, including the extra amount claimed until the following day, in order to give the agent time to report to his principal and his principal time to comply. On the next day, plaintiff sent another agent to defendant's office, who then tendered the amount of the premium, together with the extra 2 per cent. claimed, and defendant refused to receive it claiming that the policy was void. decline the engagement it had offered to make, that even if this proposition had been binding on defendant for the year 1870, it had the right in October, 1871, to refuse to continue the policy any longer. It was claimed by the plaintiff that after the insured went south, he became so sick and feeble that he could not return, and that hence his return was rendered impossible by the act of God, and that therefore there was no breach of the policy. The evidence showed that the insured had met with an accident before going south, that his health was very poor in the summer of 1870, and he could only ride out to the plantation in which he was interested, in a buggy and ride back without getting out of it, and was never any better. There was no evidence that he was too unwell to return north, or that he made any effort to return; and his condition prior to July 1, 1870, was not described. F, G. Salmon, for applt. Edgar S. Van Winkle, for respts. Held. That the violation of the pro vision of the policy by the continued residence in the south, of the insured, invalidated it, and that defendant was not bound by the proposition made by its officers to plaintiff's agent on Oct. Held, That to bring the case within the supposed rule, there should have been proof, that for some time before July 1, 1870, the insured was unable to travel by any of the usual modes. He was bound to return if he could travel by short stages, or by incurring unusual expense to secure comfort, safety, and convenience. The insured took the chances of being able to return, and being feeble when he went, he could not go so far south that he could not return, and then claim that his action was rendered impossible by the act of God. Order of General Term reversing judgment for plaintiff, and ordering new trial affirmed. Opinion by Earl, J. |