CONSTITUTION. CONSTRUC-ions of Sec. 17 of the constitution of this state. That section declares that N. Y. SUPREME COURT. GEN'L TERM. "no act shall be passed which shall proFOURTH DEPARTMENT. "vide that any existing law, or any In the matter of the application of "part thereof, shall be made or deemed the water commissioners of Roch-"a part of said act, or which shall enester to acquire title to lands of "act that any existing law, or any part "thereof, shall be applicable except by "inserting in it such act."

the Rochester Water Co.

The act referred to above under which these proceedings are taken prothat the proceedings of the commissioners to acquire title to land shall be carried on in conformity to the provisions of the general railroad act, &c., &c.

In the matter of the application of
the Rochester Water Company
to change the route adoptedy
the Rochester water commission-vides
ers, &c., &c.

Decided January, 1876. In construing the constitution, effect must be given to the intention of the framers, and the construction should Held, That in construing the constibe a liberai one where the object is the tution effect must be given to the inten. prevention of abuses and a preservation of its framers, and the construction tion of the public good. The provision of the constitution which should be a liberal one where the obdeclares that "no act shall be passed ject to be attained is the prevention of which shall provide that any existing abuses or the preservation of public law, or any part thereof, shall be good. made or deemed a part of said act; That the abuse sought to be preventor which shall enact that any existing ed in the adoption of Sec. 17 of the law, or any part thereof, shall be applicable, except by inserting in it such constitution, was the practice that had act" applies to acts referring to ex-rown up of incorporating the provisisting local or private laws, or to laws ions of existing laws in bills passed by appropriating money to pay claims the legislature, by general reference against the state, and is not intended to require that all general laws must That the intention of the convention be incorporated in all subsequent ones that may have reference thereto. that adopted the amendment of the This is an appeal from an order made constitution under consideration must at special term refusing the application be ascertained from the language emof the Water Company of Rochester to ployed, if possible. Intention not exappoint commissioners to change the pressed cannot be acted upon, but in route adopted by the commissioners of case of ambiguity in the language rethe Rochester water works, &c., &c.


sort must be had to evidence of intention outside of the section of the constitution, in order to enable the court to solve the doubt the ambiguity creates.

The proceedings to acquire the lands, &c., of the water company were conducted, in part at least, under Chap. 39 of the Laws of 1875. This act, as is cla med by the counsel of the water company, is unconstitutional because it was passed in violation of the provis

That the intention with which the section in question was adopted is manifest, and is to have full effect, unless to give it such effect would produce mis

chievous results, which, had they been anticipated the section, would not have been adopted. A literal construction would require that in every bill incorporating a municipal corporation the provisions of the revised statutes relating to elections, &c., should be incorporated, and such a construction would embarrass legislation, and give rise to great expense and complication.

Action to recover on a certain check

That no great abuses were practic- for $4,150, certified to be good by deed by applying the existing general fendant. laws of the state to subsequent ones. Defense, that the check had been The abuses almost invariably resulted raised after certification, and the date from applying existing local or private altered. laws, or laws appropriating money to On the 24 of July, 1874, defendant pay claims against the state to subse-certified a check of a customer (W.) for quent acts, and the true intent of the $41. There was a blank after the words convention that adopted the section of forty-one" which defendant neglected to draw a line through. Afterward said W. filled said blank with the words hundred and fifty," making it read "forty-one hundred and fifty dollars," and changed the date to the 7th of

constitution under consideration must be held to have applied such section to such last mentioned laws, and not that all general laws must be incorporated in every subsequent law passed, which

in any way may have reference to such July. He then, in due course of busigeneral laws.

ness passed it to plaintiff, and after

That both the legislature and execu- wards absconded. tive have adopted this construction, as Judgment was rendered for defendis shown by an examination of the sesant, and from this judgment plaintiff

sion laws.

Held also, That for the further reason that the water company refused to give the stipulation not to disturb the water commissioners in the occupation and use of the premises sought to be acquired as required by the general R. R act, an appeal by the owners of the land cannot be brought unless such stipulation is given.

Orders in both cases affirmed.
Opinion by Mullin, P. J.


Peter Helvese v. Hibernia National Bank.


Held, That the bank was negligent in certifying the check without drawing a line with a pen across the blank, thereby enabling the drawer to perpetrate the fraud, there being nothing in the appearance of the check to excite the suspicion of the plaintiff as a prudent man of business.

The certificate of the bank that a check is good, is equivalent to acceptance, 10 Wall, 647.

Judgment of court below annulled. and judgment ordered entered for

RAISED CHECK. LIABILITY OF plaintiff against defendant for $4,150, with interest from July 7, 1874, and costs.

Per curiam opinion.

Decided May 19, 1876.

Where a bank certifies a check without filling all blanks, and by such omission the check is raised, it is liable in an action to recover the value of such raised check.

The certificate of a bank is equivalent to an acceptance.

LIFE INSURANCE. SURETY ON that the company required a further


agreement that all the commissions which V. thereafter earned should be


Jacob Magee and Henry Hall, pltfs. in error, v. The Manhattan Life Ins. Co., deft. in error. (October, 1875.) Where a bond is given by an agent, as a condition of his being retained as such agent, conditioned that he will pay over all moneys belonging to the company which he may receive, the sureties on such bond are not exoner

applied on his past indebtedness to the company; that they were so applied; that the sureties were ignorant of the indebtedness and agreement; that if they had been informed of them they would not have executed the bond; and that said agreement was a fraud on them, and avoided the bond as to them.

The defendant in error demurred to

ated by the fact that the agent made a the third plea, and the demurrer was further agreement at the same time, as required by the company, that all his sustained. Issue was joined on the first commissions thereafter earned should and second pleas. The jury found a be applied to his past indebtedness to verdict for the defendant in error, and the company, of which they were ig-judgment was given accordingly.


The question came up on the demur

The mere relation of principal and surety does not require the voluntary disclosure of all the material facts in all cases.

Held, That the mere relation of principal and surety does not require the voluntary disclosure of all the material facts in all cases. The same rule as to

This was an action brought by defendant in error, against the sureties upon a bond given by one V., an agent disclosures does not apply in cases of in Mobile, Ala., conditioned that he principal and surety as in cases of insurwould pay over to the company all mon-ance on ships or lives. 10 Exch. 533. eys belonging to it which he should receive. It was claimed that he had received moneys which he failed to pay


The defence was:

1. That V. had paid over all moneys collected by him after the execution of the bond.

2. That, at the time of giving the bond, V., as such agent, was indebted to the company, and that there was an agree ment between him and the company that all moneys received by him should be credited upon this indebtedness; that these facts were concealed from said sureties.


3. That the company required the bond as the condition on which only they would retain V. in their employ;

The plea does not set forth any of the circumstances attending the execution and delivery of the bond. It does not aver that there was any misrepresentation, anything fraudulently kept back, or any opportunity to make disclosures on the part of the company, or any inquiry by the sureties before the bond was delivered. Nor is it averred that the company was aware that the sureties were ignorant of the facts complained of. It is, perhaps, to be inferred from the plea that the fact was that the bond was executed at Mobile, and sent by V., by mail, to the company in New York. If this were so, the company upon receiving it was under no obligation to make any communication to the suretics. The validity of the bond

could not depend upon their doing so. Plaintiff and M. were executors of The company had a had a right to presume the estate of plaintiff's wife. Upon a that the sureties knew all they desired to final accounting before the surrogate, know, and were content to give the in- by his decree, certain U. S. bonds of the strument without further information par value of $5,000 were reserved and from any source. Under the circum-left in the hands of M. to meet certain stances it was too late, after the breach, annuities provided for by the will. M. to set up this defence. died and defendants were appointed his executors, and said bonds came under their control. They refused to deliver them up to plaintiff until he paid a sum which they claimed due the estate of M. for commissions and advances, which claim, plaintiff alleges, was unjust and they disputed; that plaintiff, in order to obtain possession of the bonds paid the claim, although defendants had no right thereto, which sum he sought to recover back in this action.

There was nothing fraudulent in the agreement. The obligation of the agent was simply to pay over the money of the company which he should receive. This the sureties guaranteed that he would do. To do it was a matter of common honesty; not to do it was a fraud. The agreement of the agent to apply money belonging to him, derived from any source, in payment of a pre-existing debt to the company, had no such connection with what the sureties stipulated for as gave them a right to be informed on the subject, except in the court, admitted that

answer to inquiries they might have made. They made none, and there was no obligation on the part of the company to volunteer the disclosure.

On both these grounds the plea was bad, and the demurrer was properly sustained.

Judgment at circuit affirmed.
Opinion by Swayne, J.


N. Y. COURT OF APPEALS. Scholey, exr., &c., respt. v. Mumford, et al., applts.

Decided April 4, 1876. Evidence to show that payment of money was involuntary is admissible where the fact is material and is put in issue by the pleadings.

This was an action to recover as for moneys had and received by defendant under circumstances set forth in the complaint substantially as follows:

Defendants' answer, as construed by the payment of the claim for commission and advances was required as a condition for the delivery of the bonds, but alleged that the account therefor as claimed by defendants was delivered. to and examined by plaintiff and admitted to be correct.

This allegation defendants offered to prove on the trial, but the offer was rejected.

F. A. Macomber for respt.
Geo. F. Danforth for applt.

Held, error; That the averment in the complaint that the claim was disputed was necessary to show that the payment was involuntary, and it was put in issue by the averment in the answer. Defendant therefore had a right to introduce evidence bearing upon it.

Judgment of general term, affirming judgment for plaintiff reversed, and new trial granted,

Opinion by Rapallo, J.

CONTRACT. EVIDENCE. GEN- plaintiff's cause of action and to meet ERAL DENIAL. the plaintiff's evidence.

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The defendants in this case sought to show the whole contract between the parties in respect to this barley-malt and that by the terms and force of such contract, the plaintiff had no right of action.

The defendants then under then under the general denial of their answer offered to prove the contract under which said barley was delivered, and to show that it was part of 5,000 bushels of barley malt which the plaintiff had agreed to sell to the defendants, and that after the delivery of said 250 bushels of said barley, the plaintiff refused to deliver the residue of said barley.

The circuit judge held that although

the evidence so offered tended to establish a valid defence, yet such defence was not admissible under defendants' Judgment should be reversed and a answer of a general denial, and over-new trial granted, with costs to abide ruled such offer and directed a verdict the event.

This right to do so under his general denial of the plaintiff's cause of action seems to me quite plain, and is supported, I think, by abundant authorities, among others by Andrews v. Bunce, 16 Barb., 633; Schmer v. Van Allen, 18 Barb., 20; Beatty v. Swarthant, 32 Barb., and Boomer v. Koon, 13 Sup. Court Rep., 645.

Opinion by E. Darwin Smith, J.

Mullen concurs in result upon the

for the plaintiff for $413.17, to which

ruling and decision the defendants' counsel duly excepted.

Held, error. The defendants' proof principle of stare decisis. was simply directed to disprove the

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