Marshal. When the communication office, and on April 27th demanded of was received, a motion was made to ad- Mr. Allen certain books and papers journ, and Alderman Cavana h, who was belonging to the office, which were then in the chair, declared the motion refused. After such refusal this procarried. An appeal from the decision, ceeding was instituted. as announced by the chair, was imme diately taken, which Cavanagh refused to put, and then left the chair and the room, the Clerk, Martin Delehanty, following him. After they had left the room, Alderman Luby was called to the chair, and the appeal was sustained by nine votes, a full board consisting of the confirmation of others, and besixteen members. A clerk was also cause the attempted confirmation of made, and, on motion, the several nom- all by a single vote was illegal and inations of the Mayor, among which void; whilst the alleged reconfirmation was that of Kilbourn, the relator, were of April 24th was also illegal and void, confirmed by a single vote taken upon because having once voted upon the all together, nine votes having been confirmation of those officers at a precast in favor of such confirmati n. vious meeting, the power of the board was exhausted, and no new vote could legally be had; and also because the

In answer to the application, the respondent, Mr. Allen, claims that the appointment of Mr. Kilbourn was illegal and void, because the naming of two mn for offices who were members of the Common Council, was an offer of a bribe to them to vote for

Kilbourn then qualified before the Mayor, and filed his official bond. On

Messrs. G. Tremain and M. Ilale for Kilbourn.

Mr. N. C. Moak for Allen.

Westbrook, J.-It was at one time held (Devlin v. Conover, 5 Abb. 74) that upon such a proceeding

the 24th of April, 1876, the Board of confirmation was obnoxious to the preAldermen again met, Alderman Cava- viously stated objection that it was by nagh in the chair. The minutes of the a vote in gross, and not by one upon preceding meeting, April 17th, 1876, each separately. were so amended and adopted as to show the facts of tha' meeting, as hereinbefore stated. A communication was received from the Mayor that Messrs. Andes and Lauder had each refused the office to which he had been appointed, and nominating Charles Kirchner for Excise Commissioner, in the place of Mr. Andes, the officer before whom it was pendand Mr. Augustus T. Fisher for City ing had no right to look beyond the Marshal, instead of Mr. Lauder. These actual possession of the office--that in nominations, together with those acted any case when the one or the other upon at the meeting of April 17th, was conducting the office he would except those of Andes and Lauder, not be interfered with. The effect of were then confirmed by a vote of nine this doctrine was, however, to nullify to six. Tho vote was a single one the statute, for in every case an inupon all the names together. After cumbent could defeat his successor by this reconfirmation, the relator, Mr. refusing to surrender the position, and Kilbourn, again qualified as street com- then in every case the party claiming missioner. Since that time he has en- an office would be compelled to resort deavored to perform the duties of the to a writ of quo warranto. The bet

their votes in favor of his own friends.

ter opinion now seems to be that when could be inferred from the mere nominathe case is free from reasonable doubt tion, then whenever the governor of the application should be granted. the state sends to the senate, of which (North v. Cary, 4 N. Y. Sup. Ct. Rep. a majority is of adverse politics, the 357.) names of several persons, some of whom Neither is this a proceeding in profess a political belief similar to that which the title to the office is to be of the appointing power, and others tried. If the office was an elective whose views are identical with those of one, and the result had been declared the senate majority, then it might be in favor of the applicant for books and argued that the executive offered his papers, the officer upon this proceeding political opponents a bribe to secure would not go back of the result as declared to investigate the legality of the Such a conclusion would be unjust and votes cast, nor the bribing of votes. unfair, and there is no distinction beNeither in the case of an officer aptween the supposed case and the real. pointed by an executive and confirma- In the one it may be said that the contion by a board should the officer to firming power is bribed by favors bewhom this application is made go bestowed upon friends, and in the other hind the appointment and confirmation by favors bestowed upon themselves. to investigate the fraud and corruption, The alleged bribery in the one case is even if that would vitiate the appoint- the same as in the other in kind, and ment, or the evidence was sufficient to differs in degree only. Every nomination should stand or fall its upon justify the charge. An application under the statute for books and papers is designed to be a summary proceeding, and the officer to whom it is made has


individual merits, and, perhaps, in a very strict sense the practice in either case should be condemned, but actual no power, in my judgment, to declare corruption could not be interred from action of the appointing and confirm the simple acts.

ing power void for official corruption, The remaining objection to the apespecially when there is no clear proof plication is that the confirmation of the of the fact. It is a statute proceeding nominations, including that of street strictly, and no power can be exercised commissioner, was in gross and therebeyond that actually conferred. On fore void. The statute (section 10 the merits, however, of the allegation, of title 3 of charter,) does not prewe observe that it may be true that the scribe the manner of confirmation. nomination of Andes and Lauder was It simply says: "the Mayor, with the intended to improperly influence them consent and approval of the Common in their votes upon other nominees, and Council of the said city, shall biennialit may also be true that they were se- ly appoint * one Street Comlected on account of their eminent fit-missioner," etc. That consent and ness for the positions to which they approval" is simply to be expressed. were nominated, and that the idea of If by a single vote "consent and apthus influencing their votes never occur-proval" is given to several appointred to the officer who made the ap-ments, it would be difficult to say none pointment. If corruption and fraud had been expressed. If I say I consent

* *


to and approve of the appointment of of the 17th, the counsel argues must be
A. to the office of Chamberlain, of B treated as null by reason of the prof-
to the office of Deputy Chamberlain, fered bribe(and he must take that posi-
etc., expressing it in writing and sub-tion to make his point, for if voidable
scribing it by name, it would be diffi- only, there is no power vested in me as
cult to say it was not as effectual and a judge-an officer merely-to declare
valid an approval as if I had subscribed it void), then no pretended action on
two papers. And when a Common that day had exhausted the power of
Council is to "consent and approve," the Common Council in the premises,
and does consent to and approve, of and they were free to act upon the 24th.
several appointments by a single reso-
lution, I see no reason to doubt the
validity of the act. It is certainly the
daily practice thus to express consent,
and I should be reluctant to hold that My conclusion is that the order asked
such "consent and approval" were for must be granted.

void. There may be reasons why more
strictly legislative action cannot be
thus conducted, and upon that point no N.
cpinion is expressed; but I cannot hold
that the law has been violated, and that
so many officers have discharged duties
illegally and drawn salaries unlawful-
ly, as certainly have if this point of the
respondent is well taken.

It was not claimed or argued that the pretended adjournment of April 17th was legal. It clearly, however, was not. A Chairman and Clerk cannot

override the will of a majority of the Common Council, which they undertook to do. I regard the confirmation of April 17th, 1876, as valid, despite the attempted adjournment, and if it was not, the subsequent action of the 24th of the same month, being a regular meeting, certainly was. If, as as the counsel for the respondent alleges, the action of the 11th was void and no action, because of bribery and corruption, then that of the 24th which was not obnoxious to that objection. was clearly proper.

The approval and consent of the Common Council expressed by their vote

That which is void is nothing, and to claim that power has been expended, where none has been executed is the claim of a legal impossibility.



Strong, applt. v. Dana, respt.
Decided April, 1876.

In an action arising out of an alleged breach of covanants of seizin a summons for money demand under subdivision 1 sec. 129 of the code, is not proper; it should be under subdivis ion 2.

The summons in this action was

served without a complaint, and was for $918 83; the complaint which was afterwards served set forth a cause of action for damages for breach of warranty and of covenants of seizin.

A motion to dismiss the complaint on the ground that it did not conform to the summons was made and granted. Jas. C. Strong, for applt. Willard Bartlett, for respt.

Held, the decision at the Special Term was clearly right. The action was commenced by the service of a summons and the complaint did not conform to the summons previously served. The summons was under the first sub

division of section 129 of the code, and 3, 1870, and the assessment was confirmthe complaint sets up a cause of action for a breach of the covenant of seizin in a deed and seeks to recover damages in the sum of $918 83 for such breach. The summons clearly should have conformed to the second subdivision of sec. 129, and concluded with a notice that the plaintiff would apply to the court for relief demanded by the complaint.

ed November 7, 1870, and the premises were put down in pla 1.tiff's name in the assessment list, and the amount assessed against him. It was not entered in the title-book of assessments in the bureau of arears until December 24, 1870.

Plaintiff claimed that the amount did become a charge until it was there entered according to the provisions of the

The phrase in the first subdivision of laws relating to the collection of arsaid section for the recovery of money rears of taxes, assessments, &c., in the only, means for the recovery of money city of New York, (laws 1853, chap. upon some specific promise to pay a de-579, § 6; Laws 1871, chap. 381 § 1,) and finite sum of money upon an express there ore he was not liable to pay it. contract, or upon a contract implied to pay a liquidated sum of money, or debt, acknowleged.

The order should be affirmed.

Opinion by E. D. Smith J.; Mullen P. J. and Noxon, J. concurring.

COVENANT AGAINST INCUMBRANCES. EFFECT OF N. Y. COURT OF APPEALS. De Peyster, respt. v. Murphy, applt. Decided May 23, 1876. Where a deed contains a covenant that the premises conveyed are free from all taxes, assessments, &c., the grantor is bound to pay an assessment which has been levied but not yet en tered so as to become a lien upon the property uuder the statute.

This was an action to recover the amount of an assessment for a street pavement in the city of New York.

Plaintiff conveyed the premises, December 5, 1870, to defendant by a deed in which he covenanted that the premises were "free, clear, discharged and unincumbered of, and from all charges, * * * taxes, assessments and in cumbrances." The work on the assess ment had been completed prior to May


The statutes in question provide that no assessment for any city improvement shall be deemed to be fully confirmed. so as to be due and a lien upon the property included in it until the title thereof, with the date of confirmation, shall be entered as required.

After the assessment was entered, plaintiff paid it under an agreement with defendant that the latter would return the money if plaintiff was not legally liable to pay it.

John E. Parsons for respt.
Chas. E. Crowell for applt.

Held, That as the covenant in plaintiff's deed included all charges as well as taxes and assessments, although an assessment made and confirmed was not a lien for the purpose of the statute, it charge" against was, nevertheless, a plaintiff which incumbered the premises, and against which he was bound to provide.


That the improvement having been made when the contract was entered. into, and plaintiff being in the full enjoyment of the benefits arising from it, it constituted a portion of the value of

the premises, and entered into the con- appraise the compensation to be made sideration upon the sale thereof. to owners of the dams and ponds, and That it was then a lawful charge awards were made to them. A channel against plaintiff and the property, and was excavated and walled up in the a binding obligation which could only lands uncovered by the removal of the be removed by a discharge; and being dams, and in some places the channel a charge against the person and the of the stream was changed. This was property, it was fairly embraced within done under the direction of the Water the meaning of the covenant without Commissioners. Subsequently commisregard to the question whether it was sioners were appointed under an act to a lien under the statute. as-ess upon the owners of lands adjacent the benefits conferred upon them by the removal of the dams, and the excavation and walling up of the stream. This act did not fix the amount to be assessed, and under it the commissioners might have assessed any amount for such benefits.

Also held, That plaintiff was bound to pay the assessment as the person against whom it was made and entered. R. L. 183, § 175, 186; 2 Kern., 140; 4 Seld., 420, 43; 2 Pa., 434; 45 Barb., 150.

Dowdney v. Mayor, &c., explained and distinguished.

Judgment of general term, affirming judgment on verdict directed for plaintiff, reversed, and new trial granted. Opinion by Miller, J.

Water Commissioners of Poughkeep-
sie, v. Owners of Lands.

Decided May, 1876.

Where commissioners have made expenditures upon lands to which they have not acquired title the assessments made for the benefits conferred cannt be supported (People v. Haines, 49 N. Y., 587, followed).

Thompson & Weeks, for applts. Henry M. Taylor & O. D. M. Baker, for respts.

Held, That the water commissioners having acquired the right to the dams and ponds, and having removed the dams, abandoned the servitude of flowage. They did not by the purchase of the dams and water privileges, acquire any title to the land left uncovered. This became the property of the owners relieved from the servitude of flowage. The water commissioners then had no title to the land in which the channel

was built and the excavation made. The assessments were made to pay for this expenditure, and cannot be supported under the doctrine of People v. Haines, 49 N. Y. 587. It seems that a

Appeal from an order denying mo- statute is invalid which allows commistion to confirm the reports of commissioners to assess for benefits conferred sioners assessing benefits on owners of but does not fix the amount to be raislands, by reason of taking away certain ed, nor limit it to any definite sum. dams and improving the Fallkill.

Opinion by Learned, P. J.

Commissioners were appointed under an act of the legislature to ascertain and

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