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 In answer to the application, the rediately taken, which Cavanagh refused spondent, Mr. Allen, claims that the to put, and then left the chair and the appointment of Mr. Kilbourn was illeroom, the Clerk, Martin Delehanty, fol- gal and void, because the naming of lowing him. After they had left the two mn for offices who were memroom, Alderman Luby was called to the bers of the Common Council, was an chair, and the appeal was sustained by offer of a bribe to them to vote for 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 t: ken 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

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

Mr. N. C. Moak for Allen.

Kilbourn then qualified before the Mayor, and filed his official bond. On 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 Westbrook, J.-It was at one time to which he had been appointed, and held (Devlin v. Conover, 5 Abb. 74) nominating Charles Kirchner for Excise that upon such a proceeding as this, 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

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. (North v. Cary, 4 N. Y. Sup. Ct. Rep. 357.)

the state sends to the senate, of which a majority is of adverse politics, the names of several persons, some of whom profess a political belief similar to that of the appointing power, and others

whose views are identical with those of

the senate majority, then it might be argued that the executive offered his political opponents a bribe to secure their votes in favor of his own friends. Such a conclusion would be unjust and unfair, and there is no distinction between the supposed case and the real. In the one it may be said that the confirming power is bribed by favors bestowed upon friends, and in the other

The alleged bribery in the one case is the same as in the other in kind, and differs in degree only. Every nomination should stand or fall upon its own individual merits, and, perhaps, in a very strict sense the practice in either case should be condemned, but actual corruption could not be interred from the simple acts.

Neither is this a proceeding in which the title to the office is to be tried. If the office was an elective one, and the result had been declared in favor of the applicant for books and papers, the officer upon this proceeding would not go back of the result as declared to investigate the legality of the votes cast, nor the bribing of votes. Neither in the case of an officer appointed by an executive and confirmation by a board should the officer to whom this application is made go be hind the appointment and confirmation by favors bestowed upon themselves. to investigate the fraud and corruption, even if that would vitiate the appointment, or the evidence was sufficient to 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 no power, in my judgment, to declare action of the appointing and confirm 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 66 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 ap thus 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

* * *

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.

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 profto the office of Deputy Chamberlain, fered bribe(and he must take that posietc., 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 resolution, 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. opinion is expressed; but I cannot hold that the law has been violated, and that so many officers have discharged duties illegally and drawn salaries unlawfully, 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

PRACTICE.

SUMMONS.

Y. SUPREME COURT. GEN. TERM
FOURTH DEPARTMENT.
Strong, applt. v. Dana, respt.
Decided April, 1876.

In an action arising out of an alleged
breach of covanants of seizin a sum-
mons for money demand under sub-
division 1 sec. 129 of the code, is not
proper; it should be under subdivis

ion 2.

The summons in this action 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.

override the will of a majority of the served without a complaint, and was 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 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

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

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.

That it was then a lawful charge against plaintiff and the property, and a binding obligation which could only be removed by a discharge; and being a charge against the person and the property, it was fairly embraced within the meaning of the covenant without regard to the question whether it was a lien under the statute.

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 awards were made to them. A channel was excavated and walled up in the lands uncovered by the removal of the dams, and in some places the channel of the stream was changed. This was done under the direction of the Water Commissioners. Subsequently commissioners were appointed under an act to as-ess upon the owners of lands adjaAlso held, That plaintiff was bound cent the benefits conferred upon them to pay the assessment as the person by the removal of the dams, and the against whom it was made and enter- excavation and walling up of the stream. ed. R. L. 183, § 175, 186; 2 Kern., 140; 4 Seld., 429, 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.

ASSESSMENTS. SERVITUDES.

N. Y. SUPREME COURT. GENERAL TERM,
THIRD DEPT.

This act did not fix the amount to be assessed, and under it the commissioners might have assessed any amount for such benefits.

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.

Water Commissioners of Poughkeep- This became the property of the owners sie, v. Owners of Lands.

Decided May, 1876.

relieved from the servitude of flowage. The water commissioners then had no title to the land in which the channel

Where commissioners have made expenditures upon lands to which they was built and the excavation made. have not acquired title the assess- The assessments were made to pay for ments made for the benefits conferred this expenditure, and cannot be supcannt be supported (People v. Haines, ported under the doctrine of People v. 49 N. Y., 587, followed). 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.

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

Opinion by Learned, P. J.