and all proceedings and notices relating utes are not adjudged to be repealed to county affairs.

John S. Lawrence, for applt.

upon a conjecture of what the legislature would probably have done had its attention been called to the act claimed to have been superseded.

A. statute only operates as a repeal

D. J. Dean, for respts. Held, error; That the board of county canvassers, although composed of town officers, do not meet as such, or to per- by implication of a former one to the form an official duty relating exclusively both can stand, and to the extent that extent that the two are repugnant; if to town or county matters. They or ganize as a distinct board, for a special fect will be given to them. (52 N. Y., ganize as a distinct board, for a special they can stand and have effect, such efservice, and have the power to desig

nate the papers in which the results of 83; 47 id., 216; 55 id., 613.)


Judgment of general term affirming

the election shall be published, and the number of papers in which the publi- judgment of nonsuit reversed. cation shall be made, and the expense Opinion by Allen, J.; Miller and is, with the other expenses of the elec- Earle, J. J., dissenting.




tion, made a county charge. (1 R. S 148, § 6.) That there is no repugnancy between the statutes which provide for N. Y. SUPREME COURT. GEN'L TERM. the support of the government of the county of New York, and the provisions therein for designating the papers for the publication of proceedings of county officers and boards, and the statutory regulations concerning elections, and the publication of the proceedings of election boards; they are not in con

flict. That the publication of the pro

ceedings of the board of county canvassers is not among the services for which the mayor and comptroller have authority to select papers; that "county af fairs" are those relating to the county in its organic and corporate capacity, and included within its governmental or corporate powers.

It is not enough to justify the holding a statute repealed by the mere passage of a subsequent statute upon the same or a cognate subject; that within the apparent policy of the later act the prior act might reasonably have been repealed as within the reason of the legislature and fully to carry out the presumed intent of the legislature. Stat

Maria S. Morgan, respt. v. Philemon
H. Smith and another, applts.
Decided March 5, 1876.

Damages on breach of covenant in a
lease cannot be taken advantage of by
sureties, in an action on the lease,
without showing the principal to be
Where a surety is only induced to be-

come such by an agreement of the landlord to do certain things, and where there is a conflict of evidence on such point, it should be submitted to the jury.

Appeal from judgment in favor of plaintiff on verdict of a jury.

This action was brought against the appellants on their covenants as sureties on a lease. The premises were leased as a carpet store, and derived a portion of the light for the room so leased, by means of a glass floorlight in the room above. The tenants above who held under a prior lease, kept this light covered with a carpet, so that the tenants below were deprived of the

light. It was determined in an action INSTRUMENT FOR DELIVERY OF GOODS. WHEN A NOTE. PHILADELPHIA COMMON PLEAS. No. 1. Gould, et al., v. Richardson, et al. Decided April 22, 1876. The instruments sued on in this case, held not to be instruments of writing for the payment of money, but contracts for the delivery of lime. Sur rule to strike off judgment and set aside execution.



against the tenants for rent that they were entitled to have the damages by means of the obstruction recouped on the rent. By the terms of the lease, the tenants agreed that they would not sublet without the consent of the landlord. Afterwards they entered into an agreement by which the plaintiff, the landlord, was to let the premises for and on account of the lessees, it being also agreed that they and their sureties should be still liable on the lease which was to be in no way affected by the agreement. One of the defendants testified that he only consented to become surety upon the express promise of the plaintiff that the lessees should enjoy the full benefit of the floor light.

John A. Godfrey for respt.
Wm. Allen Butler for applt.

Held, That the damage to the lessees, by reason of being deprived of the light was no reason for dismissing the complaint; that the lessees only could take any advantage of it unless the sureties should show them insolvent, and then only by way of recoupment, or in a separate action for damages as they should elect. That the agreement that plaintiff' should let the premises on account of the lessees was not an alteration of the contract, and could not discharge the sureties.

Judgment affirmed as to Philemon H. Smith, and reversed as to William H. Smith, costs to abide the event. Opinion by Daniels, J.; Davis, P. J. and Brady, J., concurring

No 1.

Philadelphia, Nov. 14, 1871.

Due Messrs. Gould & Co two hundred (200.00) dollars in lime at 35 cts. per bu. on account of trade received.

No. 2

(Signed) B. M. RICHARDSON & SON. $200. No. 944 N. 9th street Philada., March 14, 1873. Due Messrs. Gould & Company, lime to the amount of three hundred and ninety six dollars and fifty cents, at thirty-five cents per bushel, delivered in any part of the city.


(Signed) B. M. RICHARDSON & SON. No. 3. Phila., March 15, 1872. Due Messrs. Gould & Co. sixty-three dollars ($63) in lime, at thirty-five cents (35 cts.) per bushel, delivered in the limits of the city of Philadelphia. $63.

(Signed) B. M. RICHARDSON & SON.

of writing for the payment of money," Held, These are not "instruments but contracts for the delivery of lime.

That as there was a conflict of evi

dence as to the agreement by which one of the sureties signed the lease, and as, if the jury found his story to be true,, When the time or place of delivery there could be no recovery. That is stipulated for, a tender must be made question should have been submitted by the debtor in accordance therewith, to the jury.

or the obligation becomes payable in money. So, also, if the article is specific, as a piece of household furniture, though no time or place of delivery is mentioned, it is held deliver

able presently to the creditor. When, them as soldiers from the U. S. Gov

however, neither time nor place is men- ernment.
tioned, and the nature of the article, as
building material, is such as to imply
a designation by the creditor of the
amount required and the place where
it is to be delivered, a specific demand
is necessary, and there is no default

until that is made.

Although, these due bills, therefore, might ultimately be considered as promises to pay money, after specific demand and refusal to deliver lime, they cannot be so treated as at present presented.

Rule absolute.

Opinion by Biddle, J.


N. Y. COURT OF APPEALS. Thompson, applt. v. Fargo, treasurer, &c., respt.

It is reported upon a former appeal in 49 N. Y., 188, where the judgment. of the court below was reverse and a new trial granted. This court then decided that after plaintiff, who was simply an agent, had, in pursance of orders of his principals, sent the money in question to them by a suitable and proper conveyance, his duties and liaThat the bilities were discharged. money when delivered to the carrier became the property of the consignees, and from that time plaintiff ceased to have any title to or interest in it, which would enable him to maintain an action, therefore plaintiff attempted to show that new facts have been developed upon the second trial which are sufficient to lead to a different conclusion. He claims to have established upon the second trial that the consignees were fictitious persons. The referee refused to find such fact.

Decided December 21, 1875. Plaintiff having collected certain back pay money from the government as the agent of person claiming to have been soldiers, cannot support an action against a carrier to whom he has delivered it pursuant to his principal's orders; nor will it aid him to show that the consignees' names were not on the government muster rolls; nor that a great length of time has elapsed since delivery to carrier and the consignees have not appeared, nor that conssignees were not entitled

to receive the money from the govern- non-appearance of the consignees to


The main evidence relied upon is the absence of the names of the consignees from the muster roll of the regi ment for their pay in which the money was collected.

E. Van Ness for applt.
Beardsley & Cole for respt.

Held, That this does not of itself

prove conclusively that no such persons ever existed. Proof was also given of the time which has elapsed and the

claim the money, notwithstanding ef forts were made to find them by advertisements and letters.

This action was brought to recover damages for an alleged failure of defendant to deliver a package of the U. S. Treasury notes received by it for transportation. The money was collect

Held, hat this proof was equally inconclusive chat the facts proved were not inconsistent with the theory that

ed by plaintiff as agent for the consig- the consignees might have absented nees for back pay claimed to be due

themselves or died, and that the referee

was not bound to find that they were The Water Commissioners of the city of Poughkeepsie, as defendants. They interposed an answer, upon which the cause was tried at the Dutchess Circuit, in March, 1874, when the plaintiffs were nonsuited. On appeal from the judgment dismissing the complaint, the General Term ordered a new trial.

Pending the appeal an act was passed, by which the acts under which the water commissioners were organized, were consolidated with the charter of the city as then amended. This act took from the commissioners the power of prose cuting and defending suits, and provided for the enforcement against the city of any liabilities contracted or incurred

Judgment of general term affirming judgment for defendant affirmed. Opinion by Rapallo, J.

It was not material whether the money sent was the identical money re-by the commissioners. The contract upceived from the government. on which the action was brought contained the following clause, not contained in the form of contract annexed to the proposal for bids: "It is further mutually agreed by the parties hereto that for any work not herein classified or defined as to price, and which said

N. Y. SUPREME COURT-GENERAL TERM contractors may be directed by said enSECOND DEPARTMENT. gineer in writing to do, the said contracDickinson et al. respts., v. The City tors shall receive and they hereby agree of Poughkeepsie, applt. to receive as full compensation for said. work the actual cost of the work with fifteen per cent added for wear and tear of tools, superintendence, profits."

After the decision on the appeal, the court substituted the present defendant. in the place of the water commissioners, and allowed it to interpose a

fictitious persons.
Plaintiff claimed that the absence of
the names of the consignees from the
muster-rolls shows that they could not
have been soldiers entitled to the pay
which plaintiff collected for them.

Held, That although in such case a fraud must have been perpetrated upon the U. S. Government by plaintiff, who was doubtless innocent, and the guilty authors of it had failed to come forward and take its fruits, that circumstance would not furnish plaintiff any title to the money which would entitle him to maintain an action for it.


Decided February, 1876.

A board, authorized by law to make contracts by publishing for proposals, and by giving the contract to the lowest bidder, has no authority, after the bids have been opened, to mate rially alter the contract as advertised by adding a clause thereto, and then award the contract to one of the original bidders, without a new advertisement.

upon the verdict of a jury. Also, from an order refusing the defendant's motion for new trial.

The action was commenced against



The plaintiffs obtained a verdict, and the defendant appeals to this court.

Appeal from a judgment in favor of the plaintiffs and against the city of Poughkeepsie, for $17,199.54, entered subdivision 2, of that act, the water

The water board was created by chapter 333, of laws of 1867. By section 6,

board could contract by publishing for proposals for the work for two weeks, and by giving the work to the lowest bidder. The board did publish the re

quired time, and did issue proposals on which biddings could be made, and did, as part thereof, refer the bidders to a proposed contract. This contract did not contain the concluding clause. There were three bidders, Messrs. Leary & Co., the plaintiffs, and Robert Nelson. Nelson's bid was the lowest.

contract, with no public biddings. The added clause is of evil effect, and was not authorized by the law.

Judgement and order denying new trial reversed, and new trial granted, costs to abide event.

Opinion by Barnard P. J.; Talcott and Pratt, JJ., concurring.

Evidence was given by the defendant tending to show that plaintiffs' bid


dings were changed after the opening of N. Y. SUPREME COURT. GENERAL TERM.


the bids; that some items, not in the proposals, were added by plaintiffs and the engineer; that some were increased and some diminished; that some items were so stated in the form of proposals that no bidding could intelligibly be made; that the second and altered biddings were again changed by plaintiffs and the engineer, by adding work which the water board had expressly refused to award to plaintiffs, amounting to some thousands of dollars. The form of the contract itself was altered so as to require the plaintiffs to keep the work in good order for five months instead of six, as called for by the proposed contract, and paragraph s was added under which the claim in question is made.

There is no authority given, and the board possesed no power to authorize or add paragraph s. The biddings were called for under a proposed contract, adopted by the board, which did not contain this provision.

Jonas Phillips, applt. v. Geo. Pace, respt.

Decided May 5, 1876.

An assignment of a charter party may
be shown by parol unless it appears
that the assignment was in writing.
An appeal must be taken from the de-
nial of a motion for a new trial on
the minutes in order to be taken ad-
vantage of on an appeal.
A party who pays money in his hands
to A., who claims the same, after no-
tice by B. that such money is the
property of B., does so at his peril.
Appeal from judgment on dismissal
of complaint.

Action brought by plaintiff to recover for breach of a charter party and upon a submission and award. The following facts appeared on the trial.

The defendant chartered the vessel "Maria Pace" to Ruger Bros., who afterwards sold and assigned the charter to Burk & Jerons, upon the agreement of the latter firm to pay to them

0. D. M. Baker, city attorney, for an advance of one shilling and sixpence applt.

sterling per quarter of the freight to be laden on the vessel. Afterwards Ruger Brothers assigned all their interest in the charter party to the plaintiff in payment of $1,000. They delivered their copy of the charter party to the plaintiff and endorsed over to him a insurance of $1,700 on charter of the "Maria

Nelson, Cook & Thorn, for respt. Held, The object of the law is plain: bidders were invited to compete with each other on equal terms.

The other bidders had no notice of this paragraph s. With it the plantiffs are clearly not the lowest bidders. An certificate of item of nearly $15,000 is added to the profits of the

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