TO CONTRACT DEBTS. had general charge of defendant's business; had endorsed other notes in defendant's name, which defendant without 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, Ield, 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. AGENCY. EVIDENCE. EXCEP TIONS. 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 George N. Kennedy for applt. 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 N. Y. SUPREME COURT-GENERAL TERM endorser of a promissory note where his FOURTH DEPARTMENT. name had been written by his son, and Abel, respt., v. Seymour, applt. he thereby adopted the endorsements Decided January, 1876. so made. He did not deny the enAuthority by a father to a son to endorsement in this cuss until after his dorse notes, &c., need not be expressson 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 Esp., 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. 1 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. The Legislature mag prescribe the forme 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, curbing, 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 aptractor, 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. 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. Our opinion is that the judgment should be affirmed. Opinion by Gilbert, J.; Mullin, P. J., and Smith, J., concurring. ASSESSMENT. CONTRACTOR'S BOND. The expense of the work was assessed upon the property along the line, including that of plaintiff. 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. 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 1. This court has no jurisdiction of by "suit or action in the nature of a bill in equity." the subject. 2. That the complaint does not state a cause of action. There is no provision in the Constution that prevents the Legislature Relying upon Lennon v. Mayor, 55 from prescribing the form in which N. Y. 366, and chap. 312 laws of remedies shall be prosecuted in this or 1874, which provides that no suit or in any other court. action in the nature of a bill of equity There seems to us to be no reason for 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 We do not think that upon the facts 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 urged that the Act of 1874 was uncon- shown, any right of action exists by stitutional, 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 to the interests of the public. 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. 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 | 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. JUDGMENT. LIEN. SURETY. 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 technically 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 to restrain a sale thereof upon exe cution. obtained a discontinuance of the action Addison Brown, for respt. 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, conveyed them, subject to a mortgage judgment debtor, but occupied a similar were not technically sureties for the 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 coveand had their action for the full nants and warranty, who also paid the 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 from said judgment to the general term 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 securities he held for the payment of the firmed October 23, 1868, an appeal was taken to the court of appeals. On this judgment (Story's Eq. Jur., § 227; 8 Barb., 534; 42 N. Y., 89; 17 Ves., 12; latter appeal, the defendants, W. and 2 Vern., 608); that plaintiffs 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 the appeal having intervened as volun- Matilda has, by certain mesne conveyteers, and by their interposition got ances become vested in the plaintiffs. time for the principal debtor, to the The life estates are given by 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 plaintiff's were entitled to children named, until all the trusts the benefit of their undertaking, and are completed. the discharge of it without their consent, was, in equity, a discharge of their property from the lien of the undertaking (1 W. & S., 155; 5 id., 352; 1 P. & W., (Penn.) 395; 49 Penn. St., 23; 58 N. Y., 563; 2 Vern., 608), and they were entitled to the relief demanded. Judgment of general term affirming judgment of special term for plaintiffs, affirmed. Opinion by Allen, J. PARTITION. N. Y. SUPREME COURT, GENERAL TERM. Chapman et al., respt., v. Cowenhoven impl'd, &c., applts. Decided May 5, 1876. 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 demurrer to the complaint. The eighth clause provides that if either of said children shall die leaving issue, that said issue shall stand in their parents stead taking per stirpes and not per capita. Defendants demurred to 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. Demurrer overruled. Wm. J. Sayres for the respt. On appeal 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. |