and all proceedings and notices relating utes are not a ljudged to be repealed to county affairs.

upon a conjecture of what the legislaJohn S. Lawrence, for applt.

ture would probably have done had its D. J. Dean, for respts.

attention been called to the

act claimed to have been superseded. Held, error; That the board of county

A. statute only operates as a repeal canvassers, although composed of town officers, do not meet as such, or to per. extent that the two are repugnant; if

by implication of a former one to the form an official duty relating exclusively both can stand, and to the extent that to town or county inatters. They organize as a distinct board, for a special they can stand and have effect, such efservice, and have the power to desig. fect will be given to them. (52 N. Y., nate the papers in which the results of 83; 47 id., 216; 55 id., 613.) the election shall be published, and the

Judgment of general term affirming number of papers in which the publi- judgment of nonsuit reversed. cation shall be made, and the

Opinion by Allen, J.; Miller and

expense 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

SURETY. between the statutes which provide for N. Y. SUPREME COURT. GEN’L TERM. the support of the government of the

FIRST DEPT. county of New York, and the provis

Maria S. Morgan, respt. v. Philemon ions therein for designating the papers H. Smith and another, applts. for the publication of proceedings of

Decided March 5, 1876. connty officers and boards, and the stat

Damages on breach of covenant in a utory regulations concerning elections,

lease cannot be taken advantage of by and the publication of the proceedings sureties, in an action on the lease, of election boards; they are not in con without showing the principal to be flict. That the publication of the pro- where a surety is only induced to beceedings of the board of county canvass

come such by an agreement of the ers is not among the services for which

landlord to do certain things, and the mayor and comptroller have author

where there is a conflict of evidence ity to select papers; that "county af on such point, it should be submitted fairs" are those relating to the county to the jury. in its organic and corporate capacity, Appeal from judgment in favor of and included within its governmental plaintiff on verdict of a jury. or corporate powers.

This action was brought against the It is not enough to justify the holding appellants on their covenants as surea statute repealed by the mere passage ties on a lease. The premises were of a subsequent statute upon the same leased as a carpet store, and derived a or a cognate subject; that within the portion of the light for the room so apparent policy of the later act the leased, by means of a glass floorlight prior act might reasonably have been in the room above. The tenants above repealed as within the reason of the leg- who held under a prior lease, kept this islature and fully to carry out the pre- light covered with a carpet, so that the sumed intent of the legislature. Stut- tenants below were deprived of the




light. It was determined in an action INSTRUMENT FOR DELIVERY against the tenants for rent that they

OF GOODS. WHEN A NOTE. were entitled to have the damages by PHILADELPHIA COMMON PLEAS. No. 1. means of the obstruction recouped on Gould, et al., v. Richardson, et al. the rent. By the terms of the lease,

Decided April 22, 1876. the tenants agreed that they would not The instruments sued on in this case, sublet without the consent of the land held not to be instruments of writing lord. Afterwards they entered into an for the payment of money, but conagreement by which the plaintiff, the tracts for the delivery of lime. landlord, was to let the premises for

Sur rule to strike off judgment and and on account of the lessees, it being set aside execution. also agreed that they and their sureties COPY OF should be still liable on the lease which was to be in no way affected by the No 1. Philadelphia, Nov. 14, 1871. agreement. One of the defendants Due Messrs. Gould & Co two hundred testified that he only consented to be- (200.00) dollars in lime at 35 cts. per bu. come surety upon the express promise on account of trade received. of the plaintiff that the lessees should (Signed) B. M. RichaRDSON & Son. enjoy the full benefit of the floor light. $200.

No. 9+4 N. 9th street John A. Godfrey for respt.

No. 2 Philada., March 14, 1873. Wm. Allen Butler for applt.

Due Messrs. Gould & Company, lime lield, That the damage to the lessees, to the amount of three hundred and by reason of being deprived of the ninety six dollars and fifty cents, at thirlight was no reason for dismissing the ty-five cents per bushel, delivered in complaint; that the lessees only could any part of the city. take any advantage of it unless the $396.50 sureties should show them insolvent, (Signed) B. M. RICHARDSON & Son. and then only by way of recoupment, No. 3. Phila., March 15, 1872. or in a separate action for damages as

Due Messrs. Gould & Co. sixty-three they should elect. That the agreement dollars ($63) in lime, at thirty-five cents that plaintiff should let the premises on (35 cts.) per bushel, delivered in the account of the lessees was not an alter- limits of the city of Philadelphia. ation of the contract, and could not dis

$63. charge the sureties.

(Signed) B. M. RICHARDSON & Son. That as there was a conflict of evidence as to the agreement by which of writing for the payment of money,”

TIeld, These are not “instruments one of the sureties signed the lease, and but contracts for the delivery of lime. 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 sulmitted

by the debtor in accordance therewith, to the jury.

or the obligation becomes payable in Judgment affirmed as to Philemon H. Smith, and reversed as to William money. So, also, if the article is H. Smith, costs to abide the event. specific, as a piece of household furni

Opinion by Daniels, J.; Davis, P.J. ture, though no time or place of deand Brady, J., concurring

livery 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 It is reported upon a former appeal building material, is such as to imply in 49 N. Y., 188, where the judgment a designation by the creditor of the of the court below was reverse i and a amount reqnired and the place where new trial granted. This court then deit is to be delivered, a specific demand cided that after plaintiff, who was simpis necessary, and there is no default ly an agent, had, in pursance of orders until that is made.

of his principals, sent the money in Although, these due bills, therefore, question to them by a suitable and might ultimately be considered as pro- proper conveyance, his duties and liamises to pay money, after specific de- bilities were discharged. That the mand and refusal to deliver lime, they money when delivered to the carrier cannot be so treated as at present pre. became the property of the consignees, sented.

and from that time plaintiff ceased to Rule absolute.

have any title to or interest in it, which Opinion by Biddle, J.

would enable him to maintain an action, therefore plaintiff attempted to show

that new facts have been developed upCONSIGNOR. ACTION AGAINST

on the second trial which are sufficient CARRIER.

to lead to a different conclusion. He N. Y. COURT CF APPEALS.

claims to have established upon the Thompson, applt. v. Fargo, treasurer, second trial that the consignees were &c., respt.

fictitious persons. The referee refused

to find such fact. Decided December 21, 1875.

The main evidence relied upon is the Plaintiff having collected certain back

absence of the names of the consigpay money from the government as the agent of person claiming to have nees from the muster roll of the regibeen soldiers, cannot support an ac ment for their pay in which the money tion against a carrier to whom he has was collected. delivered it pursuant to his princi

E. Van Ness for applt. pal's orders; nor will it aid him to show that the consignees' names were

Beardsley & Cole for respt. not on the government muster rolls ; Held, That this does not of itself nor thut a great length of time has clapsed since delivery to carrier and prove conclusively that no such persons the consignees have not appeared, nor ever existed. Proof was also given of that conssignees were not entitled the time which has elapsed and the to receive the money from the govern- non-appearance of the consignees to ment.

claim the money, notwithstanding efThis action was brought to recover forts were made to find them by adverdamages for an alleged failure of de- tisements and letters, fendant to deliver a package of the lleld, at this proof was equally U. S. Treasury notes received by it for inconclusive that the facts proved were transportation. The money was collect- 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 fictitious persons.

of Poughkeepsie, as defendants. They Plaintiff claimed that the absence of interposed an answer, upon which the the names of the consignees from the cause was tried at the Dutchess Circuit, muster-rolls shows that they could not in March, 1874, when the plaintiffs have been soldiers entitled to the pay were nonsuited. On appeal from the which plaintiff collected for them. judgment dismissing the complaint, the

Held, That although in such case a General Term ordered a new trial. fraud must have been perpetrated upon Pending the appeal an act was passed, the U. S. Government by plaintiff, who by which the acts under which the wawas doubtless innocent, and the guilty ter commissioners were organized, were authurs of it had failed to come for- consolidated with the charter of the city ward and take its fruits, that circum- as then amended. This act took frorn stance would not furnish plaintiff any the commissioners the power of prose title to the money which would entitle cuting and defending suits, and providhim to maintain an action for it. ed for the enforcement against the city

It was not material whether the of any liabilities contracted or incurred money sent was the identical money re- by the commissioners. The contract upceived from the government.

on which the action was brought conJudgment of general term affirming tained the following clause, not containjudgment for defendant affirmed. ed in the form of contract annexed to Opinion by Rapallo, J.

the proposal for bids: “It is further

mutually agreed by the parties hereto CONTRACTS FOR PUBLIC WORK that for any work not herein classified ALTERATION OF.

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 Decided February, 1876. A board, authorized by law to make

fifteen per cent added for wear and tear contracts by publishing for proposals, of tools, superintendence, profits.” and by giving the contract to the low

After the decision on the appeal, the est bidder, has no authority, after court substituted the present defendant the bids have been opened, to mate, in the place of the water commissioners, rially alter the contract as advertised and allowed it to interpose a new by adding a clause thereto, and then award the contract to one of the original bidders, without a new adver The plaintiffs obtained a verdict, and tisement.

the defendant appeals to this court. Appeal from a judgment in favor of The water board was created by chapthe plaintiffs and against the city of ter 333, of laws of 1867. By section 6, Poughkeepsie, for $17,199.54, entered subdivision 2, of that act, the water upon the verdict of a jury. Also, from board could contract by publishing for an order refusing the defendant's mo- proposals for the work for two weeks, tion for new trial.

and by giving the work to the lowest The action was commenced against | bidder. The board did publish the re



quired time, and did issue proposals on contract, with no public biddings. The which biddings could be made, and did, added clause is of evil effect, and was as part thereof, refer the bidders to a not authorized by the law. proposed contract. This contract did Judgement and order denying new not contain the concluding clause. There trial reversed, and new trial granted, were three bidders, Messrs. Leary & costs to abide event. Co., the plaintiffs, and Robert Nel Opinion by Barnard P. J.; Talcott

Nelson's bid was the lowest. and Pratt, JJ., concurring. Evidence was given by the defendant terding to show that plaintiffs' bid AGREEMENT. APPEAL. dings were changed after the opening of N. Y. SUPREME Court. GENERAL TERM. the bids; that some items, not in the pro

FIRST DEPARTMENT. posals, were added by plaintiffs and the

Jonas Phillips, applt. v. Geo. Pace, engineer; that some were increased and respt. some diminished; that some items were Decided May 5, 1876. so stated in the form of proposals that An assignment of a charter party may no bidding could intelligibly be made; be shown by parol unless it appears that the second and altered biddings An appeal must be taken from the de

that the assignment was in writing. were again

nial of a motion for a new trial on the engineer, by adding work which the

the minutes in order to be taken adwater board had expressly refused to a vantage of on an appeal. ward to plaintiffs, amounting to some A party who pays money in his hands thousands of dollars. The form of the to A., who claims the same, after nocontract itself was altered so as to re

tice by B. that such money is the

property of B., does so at his peril. quire the plaintiffs to keep the work in good order for five months instead of

Appeal from judgment on dismissal six, as called for by the proposed con

of complaint. tract, and paragraph s was added under

Action brought by plaintiff to recov

er for breach of a charter party and upwhich the claim in question is made. There is no authority given, and the on a submission and award. The fol

lowing facts appeared on the trial. board possesed no power to authorize or

The defendant chartered the vessel add paragraph s. The biddings were

“ Maria Pace" to Ruger Bros., who called for under a proposed contract, adopted by the board, which did not

afterwards sold and assigned the charcontain this provision.

ter to Burk & Jerons, upon the agree

ment of the latter firm to pay to them 0. D. M. Baker, city attorney, fur an advance of one shilling and sixpence applt.

sterling per quarter of the freight to Nelson, Cook & Thorn, for respt. be laden on the vessel. Afterwards

Held, The object of the law is plain: Ruger Brothers assigned all their interbidders were invited to compete with est in the charter party to the plaintiff each other on equal terms.

in payment of $1,000. They delivered The (ther bidders had no notice of their copy of the charter party to the this paragraph s. With it the plantiffs plaintiff and endorsed over to him a are clearly not the lowest bidders. An certificate of insurance of $1,700 on item of nearly $15,000 is added to the profits of the charter of the “ Maria

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