[No. 16.

VOL. 2.] MONDAY MAY 29, 1876.

had general charge of defendant's busi-
ness; had endorsed other notes in de-
fendant's name, which defendant with-
out objection paid. The son lived in
the same house with defendant. The
note in suit was a renewal of an old
one. The note was once shown to de-

Gamble, respt., v. Village of Wat- fendant, and he said, “I will see to it.” kins, applt, He never repudiated any endorsements on this, or other notes, until his son ran away.

It was also proved, under objection, that when the note was made the son

signed the it and then said, "I will go and get father's name on the back," and that while he was gone, witness heard him conversing with some one, and that he (witness) recognized the voice as defendant's. Defendant's wife negotiated one of the notes, endorsed by the son in defendant's name.

Decided May, 1876. Village trustees have no power to contract debts for entertaining editors visiting the village. Appeal from a judgment in favor of plaintiff, for a debt contracted in entertaining a company of editors visiting


Ileld, That the defendants had no power to appropriate moneys for such purpose. (Hodges v. Buffalo, 2 Denio, 110.)

It is said that the expenditure was repaid by subsequent editorial puffs, but it is not proper for trustees to hire editors for such a purpose. If it had been shown that the editors were paupers there might have been some propriety in keeping them from starving. Judgment reversed with costs. Opinion by Learned, P. J.; Bockes, and Boardman, J.J., concurring.



There was judgment for plaintiff before the referee.

Held, The referee did not find that the endorsement sued on was made by the defendant, but did find that it was made by his authority. No direct evidence of his authority was given on the trial, nor was evidence of that kind necessary to warrant the finding. According to the evidence given on behalf of the plaintiff, the defendant had been accustomed to assume the liability of an endorser of a promissory note where his name had been written by his son, and he thereby adopted the endorsements so made. He did not deny the en

Abel, respt., v. Seymour, applt. Decided January, 1876. Authority by a father to a son to endorsement in this ces until after his dorse notes, &c., need not be express son had absconded, but impliedly adly proved; it may be proved by implication or custom. Exceptions mitted his liability upon it. Such acts unexplained are conclusive against him. This action was on a promissory (Barber v. Gingell, 3 E-p., 60; Hartnote endorsed in defendant's name by ford Bank v. Hart, 3 Day, 491. Weed his son. It was proved that the son v. Carpenter, 10 Wend, 403; Butler

to evidence.


George N. Kennedy for applt.
Wm. C. Ruger for respt.

v. Stocking, 4 Seld., 408; Prescott v. Flinn, 9 Bing., 19.) The evidence given by the defendant amounted to a denial of the facts from which his assent to the acts of his son might be implied, and at most only raised a question of fact on this point, and we are unable to perceive any reasonable ground for disturbing the conclusion of the referee upon it.

Our opinion is that the judgment should be affirmed.

The Legislature mag proscribe the form of proceedings in any court, such an act would not be limiting their juris diction.

Where a first contractor fails to complete the work, and it is subsequently completed at an increased expense, the city cannot be restrained from collecting the assessment until it has sued on the contractor's bond, for such increased expense.

Several exceptions were taken to the Appeal from order of the special admission of declarations and trans- term sustaining demurrer to the comactions with Ira B. Seymour. They plaint.

were received upon the ground that In 1868 a resolution was passed by he was the agent of the defendant the Board of Aldermen of New York in respect to the matter in contro- City authorizing the grading, curling, versy. They had no bearing on the &c., of Seventy-seventh Street, from case whatever, unless such agency Ninth Avenue to the Boulevard, and was established. It is not neces- the contract was given to one Moore, sary to decide whether the agency who agreed to do the work for a cerproved, included an authority to en-tain stipulated price, and gave a bond dorse notes. If it did, the evidence with sufficient sureties for the proper was competent as part of the res gesto. performance of this work. In 1871 he If it did not, the evidence was wholly abandoned the work, which was afterimmaterial, because the defendant, wards undertaken by a second connevertheless, is liable upon the ground before stated. The same remark is ap- tractor, but at an increased price. plicable to the evidence respecting the defendant's voice. We would not, therefore, be warranted in reversing the judgment, even if the evidence was erroneously admitted.

The expense of the work was assessed upon the property along the line, including that of plaintiff.

With respect to the conversation had with the defendant's wife, it sufficiently appears that it was had at his instance and in his behalf.

Plaintiff seeks by this action to have this assessment vacated, on the ground that the proceedings were not properly advertised, and the li en discharged as a cloud upon his title.

Opinion by Gilbert, J.; Mullin, P. J., and Smith, J., concurring.

Also, that defendants be stayed from further proceedings thereunder, until they have prosecuted the bond of Moore, for the increased price which they were obliged to pay, because of his failure to complete his contract, and



N. Y. SUPREME COURT-GEN'L TERM. until they have applied the proceeds FIRST DEPARTMENT. derived therefrom to reduce the entire

Amos R. Eno, applt., v. The Mayor, assessment. &c., respt.

Decided May 5, 1876.

Defendants demured to the com plaint because:

1. This court has no jurisdiction of by "suit or action in the nature of a the subject. bill in equity."

2. That the complaint does not state a cause of action.

Relying upon Lennon v. Mayor, 55 N. Y. 366, and chap. 312 laws of 1874, which provides that no suit or action in the nature of a bill of equity or otherwise shall be commenced to the distinction sought to be made vacate any assessment or to remove a between this court and court of comcloud upon title, but that property mon pleas in this regard. When the owners shall be confined in their reme- legislature simply seeks to regulate the dies, to proceedings under the act mode of procedure in obtaining a amended. On these authorities the remedy, its powers are the same over court below sustained the demurrer. all the courts of the States.

On the argument of the appeal counsel urged that the Act of 1874 was unconstitutional, as abridging the jurisdiction of the supreme court. That the court of appeals did not really pass upon this subject in Lennon v. Mayor, as that case came from the common pleas, which being of inferior jurisdiction might be limited or deprived by the Legislature of jurisdiction in cases like the one at bar; but that if the act properly governs this court still the complaint is not demurrable since it seeks a further relief not contemplated by the statute, viz.: that the defendant be required to prosecute the bond, and that the form of the remedy was not raised by the demurrer.

Irving Ward for the applt.
D. J. Dean for the respt.
On appeal

Held, That this is very plainly a "suit or action in the nature of a bill in equity," and is prohibited by the act of 1874, if that act be valid. It is a mistake to suppose that the act deprives this court of any jurisdiction. It simply restricts suitors to a particular form of proceeding in the court, to obtain remedies which before may have been given


There is no provision in the Constution that prevents the Legislature from prescribing the form in which remedies shall be prosecuted in this or in any other court.

There seems to us to be no reason for

We do not think that upon the facts shown, any right of action exists by which plaintiff could compel defendants to sue upon the bond of the former contractor before collecting the assessment. To allow actions of that character to be maintained would be to subject public improvements to delays. and embarassments greatly prejudical to the interests of the public.

The objection to the demurrer, that it does not raise the question of the form of the remedy does not apply. The demurrer was in the general form, that the complaint did not state a cause of action that was sufficient; for the statute provides, that on the facts that appear in the case an action cannot be maintained in the form herein adopted.

Order affirmed.

Opinion by Davis, P. J.; Brady, and Daniels J. J. concurring.

Barnes et al., respts., v. Mott, impl'd,
&c., applt.

Decided March 21, 1876.

A bona fide purchaser without notice, and Britton having become insolvent, of real estate, upon which there is and Binninger having died, leaving no lien by judgment, although not tech

nically surety for the judgment debt-assets, an action was commenced against or, occupies a similar position, and W. and D., upon their undertaking. if the judgment is stayed by an un- They were defended by defendant dertaking on appeal, a release by the Wagner, who, in March, 1873, settled judgment creditor of the sureties on with the owners of the judgment and the undertaking on appeal, will ope- took an assignment of it to himself, and rate to discharge the judgment lien upon the land, and support an action obtained a discontinuance of the action to restrain a sale thereof upon exe against the securities. A day or two after, Wagner executed a release under seal, to W. and D., releasing them from all liability on their said undertaking, and assigned the judgment to defendant M., who had an execution issued.


Held, That plaintiffs, as successor in interest of Burr, Britton's grantee, the same rights and equities he would occupied the same position, and have

This action was brought to restrain by perpetual injunction the sale of a house and lot under an execution upon a judgment recovered in 1864, against Britton & Binninger. Plaintiff, H. B. B., is the present owner by a conveyance from one L., in 1873, the other plaintiffs are the grantors to L. Defendant M. holds the judgment by assignment from defendant W. It appeared that when the judgment was have had if he had continued recovered Britton owned the premises, to own the premises; that plaintiffs and afterwards, in October, 1864, conwere not technically sureties for the veyed them, subject to a mortgage judgment debtor, but occupied a similar thereon, to one Burr, with full covenants and warranty, who paid the full position, and were entitled to the same price in ignorance of the judgment, and equities, so far as they could be administered consistently with the rights of took immediate possession. Burr died others; that they might, as grantees of in 1865, having devised the property to the land with covenants against incumhis children, who payed off the mortbrances, at any time, but for the stay of gage and conveyed them to L. in ignoappeal, have paid off the incumbrance, rance of the judgment, with full covenants and warranty, who also paid the and had their action for the full full price therefor. When the proper: 105; id., 358; 10 Wend., 142); and amount paid (4 Mass., 627; 18 J. R., ty was conveyed to Burr, an appeal from said judgment to the general term upon payment thereof they would have been subrogated to all the rights of the was pending, with an undertaking staying execution. The judgment was af- judgment creditor, and to all the secu rities he held for the payment of the firmed October 23, 1868, an appeal was taken to the court of appeals. On this Barb, 534; 42 N. Y., 89; 17 Ves., 12; judgment (Story's Eq. Jur., § 227; 8 latter appeal, the defendants, W. and 2 Vern., 608); that plaintiff's succeeded D., executed an undertaking whereby all proceedings were stayed during the to the remedies the judgment creditor pendency of the appeal. The judg- would have had against the sureties upment was affirmed in January, 173, on the appeal; that the sureties upon

Addison Brown, for respt.
W. F. Shepard, for applt.

The life estates are given by the

are completed.

the appeal having intervened as volunteers, and by their interposition got time for the principal debtor, to the prejudice of the prior sureties and of seventh clause of the will. plaintiffs, they must be considered in The sixth clause, however, provides equity as any other sureties, and their that the executors shall rent this proobligation enured to the benefit not perty, and pay from the rent so received only of the creditor, but of any and certain specified legacies. That after all who had become before them in any their payment they shall pay a third of way sureties for the payment of the such rent remaining unto the three debts, and plaintiffs were entitled to children named, until all the trusts the benefit of their undertaking, and| the discharge of it without their conThe eighth clause provides that if sent, was, in equity, a discharge of their either of said children shall die leaving property from the lien of the undertak- issue, that said issue shall stand in their ing (1 W. & S., 155; 5 id., 352; 1 P. parents stead taking per stirpes and not & W., (Penn.) 395; 49 Penn. St., 23; per capita. Defendants demurred to 58 N. Y., 563; 2 Vern., 608), and they the complaint in partition on the ground that Nicholas Cowenhaven being still alive the trusts mentioned in the sixth clause of the will were not yet completed, that until they were, plaintiff's could not show such an interest as would entitle them to proceed in this action; the possession of the whole being in the trustees, for the purpose of executing the trusts.

were entitled to the relief demanded.

Demurrer overruled.

Judgment of general term affirming judgment of special term for plaintiffs,


Opinion by Allen, J.



Chapman et al., respt., v. Cowenhoven impl'd, &c., applts.

Decided May 5, 1876.

Matilda has, by certain meɛne conveyances become vested in the plaintiffs.

Wm. J. Sayres for the respt.
II. C. Place for the applt.
On appeal

An estate in fee, not subjected to any
life estate, though subject to the pos-
session of trustees, for the purpose
of executing certain trusts, is a suffi.
cient possession to uphold an action
for partition.
Appeal from order over-ruling de-
murrer to the complaint.

Held, That although by the provision of the will the legal title is vested in testatrix's children, yet the trustees are entitled to possession under the sixth clause of the will as a necesOne Garretta Cowenhoven died sary incident to the carrying out of the seized of the property sought to be trust, and it would seem by the eighth partitioned by this suit, and by her clause that the testatrix intended that will devised one undivided third there- the trust should continue until the last of to each of her children, Tunis, of the three children had died. And Nicholas, and Matilda for life, re- this point is raised as an objection to mainder to their heirs. Tunis and plaintiff's right to maintain the action Matilda have both died. The share of for partition.

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