ful combination, and which is known willing to do the work at a price less before the work is ordered to proceed, than the Stephens' bid called for. The or compensation paid, the party so ord- informal bids, rejected because they ering and paying has been an active wer: informal but not required to be recontributor to his own injury, and has fused for that reason, so informed them. himself winged the dart which inflicts They also knew that the proposal was the wound. In the one, the injury is too high, for it was first rejected for that complete by the voluntary act of the very reason, but subsequently it was party in default, and the other the con accepted, and the contract signed. summation of the injury is enforced by In about a month after the contract the party making the complaint. Be was executed, the legis ature of the tween them there is no parallel, and no State liad knowledge sufficient to put train of thought which demonstrates a them upon inquiry, and as early as Janplausible cause of action in the one can vary s', 1867, a resolution organizfurnish any possible ground for the ing a committee of inquiry was intromaintenance of the other.

duced, and had passed both houses on If an agent be authorized to receive February 7, 1867. propo:als and contract for work, does April 19, 1867, a joint resolution was not this power necessarily carry with adopted by the two legislative branches it the right to decide every question requiring the contractors to proceed in pertinent to the making thereof? It the execution of the contract, and disurely does, for the authority con'erred recting that the “ Canal Commissioner upon an agent to do an act “is always in charge of the eastern division disconstrued to include all the necessary charge his duties.” and usual means of executing it with As early as March 11, 1867, certaineffect.” Stury on Agency, Sec. 68. ly, and perhaps before that, the canal The party entrusted with such a power board had accurate information of the is chosen not because he is a machine, aileged conspiracy, and the officers of but a man, with eyes to see and judg- the State ordered the work to proceed, ment to exercise. When the question and compelled its performance for the comes as to the propriety of making whole five years. the agreement, his principal expects On January 1, 1868, the joint comthat he will consider every point bear- mittee of the legislature made its reing upon the expediency of the acts port, and such report fully established which he is to do. The right to consid- every fact relied upon in this action. er and determine necessarily involves During the saine session a law was pasthe power to bind the principal by the sed (chap. 869, laws of 1868) authorizdecision when made. Knowledge of ing the attorney-general to commence the agent is knowledge of the princi- suit to annul the contract, among othpal, and the acts of the former, when ers, which is involved in this action. in good faith, bind the latter. Joslin By chapter 55 of the laws of 1970, v. Corvee, 52 N Y., 90; same case, 6 the contracting board was abolished, N. Y., 626.

but it declared that its abolition should The contracting board of the State not "invalida e the contracts heretohad knowledge, before they executed fore made, or discharge any of the con. the contract, that other parties were tractors from the duties and obligations


imposed by such contracts, or the said | RECEIVERS. STRIKING OUT laws." By the same act the canal board

ANSWER. was authorized, “whenever they shall n. Y. SUPREME COURT. GENERAL TERM. deem it for the interests of the State,

FIRST DEPARTMENT. to cancel and annul any contract or contracts, for repairs of the canals hereto

Johı. M. IIarlow. trustee, &c. v. Al. fore made, by a resolution to be enter

van S. Southworth, receiver, impleaded

&c. ed in the minutes of the said board."

Decided May 26, 1876. With entire knowledge the work was executed. Year by year a report from Receiver permitted to come into an ac

tion and serve the canal commissioner in charge de

answer setting

up his appointment, and forbidden clared the sum due the contractors, to allege anything in hostility to Appropriations to pay were regularly plaintiff', may not afterwards amend inade by the legislature, and payments

such answer and aliege other matmade by the officers who were charged

ters, with that duty. The proof conclusive Appeal from an order striking out ly establishes that when the coutract answer. was executed the contracting board was

This action was brought by the plainnot deceived by the supposition that tiffas trustee of the first mortgage bonds the accepted bid was the lowest price of the Bleecker Street and Fulton Ferry 10 be obtained after a fair competition; Railroad Company, to foreclose the first that the officers of the State in charge mortgage given by the road. of the work, and its legislature when

The defendant, Southworth, was in its performance was required were fil. the above action, and also a second acly informed of the alleged fraud ; that tion, appointed receiver of the Bleecker the law-making power of the State, Street and Fulton Ferry Railroad Coinwith accurate and complete knowledge, pany. affirmed the contract by express law, Upon his own application he was and year by year placed the money of made a party defendant in the above the State in the hands of its officers to suit. In the order making him such be paid thereupon ; and that such party, he was permitted within three money and every dollar of it has been days to put in an

to the paid, not only without any mistake of alove entitled action, by which anfacts, but with full, complete and accu- swer he might set up his appointrate information,

ment as Receiver, and submit his The contract has been signed, exe

rights to the protection of the court; cuted, and completed with ul! krowl. and it was further provided that said anedge, and it would be preposterous to

swer should not contain, or set up, any hold that when the State has for five matter or averment, in hostility to the long years, reruired every act to be

above named plaintiff, John M. Hardone which has been done, that it can

low, as, &c., or any other matter

than as aforesaid. have any redress for action which it has itself compelled.

Within the time provided by the ord

er the louceiver, South worth, put in an Opinion by Westbrook, J.

inswer setting up his appointment as Receiver, and asking the protection of



the court; and within twenty days after a judgment recovered on notes givsa red an amended answer, setting up en to settle an action, the issue in chat a large portion of the bonds refer

which was joined before the erecution

of the mortgage, held sufficient to red to in the complaint were void, ficti

show an indebtedness prior to the tious, and fraudulent evidences of debt,

making of the mortgage. &c., and asking an accounting touching Declarations of a party male before such bonds, to the end that such bonds giving the mortgage are admissible as had been fraudulen*ly issued, with as evidence against him. out consideration, should be ordered to The testimony of a defendant given on be delivered up and cancelled, and for

a former trial of the same action

may be given in evidence against other relief.

lim. Upon the return of an order to show

Plainuff brought action as assignee cause, such amended answer was strick

of certain judyments against defendant, en out, and the original answer directed

II., after return of execution isatisto be and stand, as the answer here

tierl, to set aside a mortgage executed in, and from the order striking out the amended answer this appeal was taken by the latter to defendant Mel., as

fraudulent against creditors. Defend. Held, That the answer, so far as it

ants claimed that plaintiff could not realleges that some of the bonds are with.

cover, upon the following grounds out consideration, sets up nothing in


others: That there was hostility to the trustee. It is his duty proof; that the judgments owned by to see to it that no such bonds are paid him were recovered upon an irdebtedout of the proceeds of his foreclosure.

ness which existed before the making The order, under which the Receiver of the mortgage from H. to McI. It was permitted to come in, limits his answer to certain specified things. The covered upon notes made by II. and

appeared that these judgments were reobject, doubtless, was to prevent delay others, and given to settle an action in the suit which would be unnecessary, against them upon another note, made as the order of reference to take proof by II. and others, the issue in which of ihe bonds will doubtless contain

was joined before the execution of the proper directions on the subject of any

mortgage. alleged invalid or fraudulent bonds, and the Receiver, and all other parties

Geo. T. Spencer, for applts. will be entitled to be heard as to the D. 11. Bolles, for respt. form of such order and before the ref

Hell, That this evidence was suffieree.

cient to sustain a finding that the inOrder affirmed.

debtness to plaintiff existed before the Opinion by Daniels, J.; Davis, making of the mortgage. P.J., concurring

Defendants also claimed that the re.

feree crred in receiving in evidence deCREDITOR'S BILL. EVIDENCE.

clarations of II. made before giving the N. Y. COURT OF APPEALS.

mortgage. Plaintiff's counsel stated, Stowell, respt., v. Ilazlett, et. al., when the evidence was offered, that he applts.

claimed the testimony only as evidence Decided June 9, 1876.

against H.

Held, That it was to be inferred that case, and was prepared to try the cause it was received and considered by the when it should be reached. Before the referee with that limit.

cause was reached the defendant therein Defendants also claimed that it was died, and the matter was finally settled error to receive in evidence the testi- by her heirs without further litigation. mony

of H. on another trial of this ac- Watson received for his services $2,125, tion offered by plaintiff. The counsel of which, by the agreement, $705.33 for both defendants objected generally was to be paid Tracy. He paid him to its reception.

$250, and asked to be allowed to retain Held, That the evidence was proper the balance for a short time, when he ly received as againət defendant II., wouid pay it also, but afterwards changand the referee was right in overruling ing his mind he refused to pay the lalthe objection which sought to exclude ance, and for said balance this action is it entirely.

brought. Judgment of General Term, affirm Detendant resisted this action on the ing judgment in favor or plaintiff on re- ground that he had made his agree. port of referee, affirmed.

ment with Tracy alone and not with Opinion by Folger, J.

the firm, and that therefore the plain

tiffs were improperly joined. That COUNSEL FEE. CONTRACT.

Tracy was to be paid for the trial of N. Y. SUPREME Court. GENERAL TERM, the case of Lunch v. Lynch, and there FIRST DEPT.

being no trial, the consideration failed. William Tracy et. al., respts., v. Wil. On the trial it was shown that all that liam Watson, applt.

was earned by either of the plaintiff's

went into a common fund, an.l betongDecided May 26, 1876.

ed to all alike. The written agreeWhere firm holds all earnings in com- ment was put in evidence, the part remon, it is enough interested in a con. ferring to counsel fee was as tract of third party with a member of said firm, to bring an action in the

“He (Watson) employs Tracy, as firm name, to enforce said contract. counsel, and is to pay over to him oneWhere the written contract of parties third of what he shall derive from the

is apparently incomplete, evidence service; not counting in $100 received may be given, showing the further on account." stipulation entered into by them.

The court ruled out (Win. Watso!) Appeal from judgment recovered on defendant's parol evidence which tended a verdict.

to vary the terms, or to show the considPlaintiffs compose the firm of Tracy jeration of the written agreement, and & Tallmadge, attorneys.

directed a verdict for plaintiff. In 1870 the defendant, who was the

On appeal. attorney in the suit of Lynch v. Lynch,

Wm. Tracy, for respt. retained Mr. Tracy as counsel, agreeing to pay him as counsel fee, one-third of

Wm. Watson, for applt. what the said Watson should receive lleld, That the members of plainfrom his client as fee, and an agree tiff's firm having a common interest in ment to that eff ct was drawn up and the earnings of cach member, were signed. Tracy argued a motion in the properly the parties in interest in this

case, and the action was correctly said estate; was to · repair buildings, brought in their names. The contract collect rents, borrow money and incur was explicit and complete upon the obligations in reference to such propersubject of counsel fee, and for that rea- ty, pay debts, &c. son it was not liable to be explained or Edwards employed one Wilson to chanced by oral evidence. The parties perform certain work on the property had expressly stipulated how the of the estate and to pay for the work. annount realized from the litigation Elwards gave to Wilson a note signed should be divided between them, and “ John Edwards, attorney for the estate that was not rendered sulject to any of L. Hayes." Plaintiff discounted contingency, or qualification whatever. this note, and brings this action to colWhere the instrument, produced as the lect the same. contract of the parties, is apparently The heirs of the estate were sued, incomplete, then evidence may be and they defend. given showing the addition:il stipulation The Judge at Circuit non-suited entered into by them.

plaintift. This was not such a case; the only Winslow & Smith, for applt. question was as to the amount defendant

A. B. Moore, for respts. should pay; and when it appeared

TIell, That the non-suit was right. what he had received, the contract fixel That a principal is not bound by the in plain terms what he should pay.

contract of an agent unless the name of Judgment attirmed.

the principal is set forth in the contract Opinion by Daniels, J.

or annexed to the signature of the Davis, P. J., and Braly, J. cor

agent, showing that it was the intention curring.

of the agent to contract for or in behalf

of his principal. If tlie contract does PRINCIPAL AND AGENT. not show this important fact, then the N. Y. SUPREME Court. GENERAL TEEV principal is not bound, but the agent

FOURTH DEPARTMENT. may be personally responsible on the Merchants’ Bank, applt. v. Hayes et contract.

That the note in this case not disclosat., respts. Decided April, 1876.

ing or holding the principals, and being

signed by El wards, attorney, &c., A promissory note given for work done for the principal by an agent having surely did not bind the heirs of the es4 power of uttorney, an'l signed "1. tate of L. Hayes. E., attorney for the estate of L. Judginent affirmed. llayes," docs not bind the heirs of the

Opinion by Mullin, P. J. estate, (the principals). Appeal from judgment of non-suit.

PUBLIC ADMINISTRATOR. INJohn Edwards is the attorney under

TEREST ON FUNDS. a written power from the heirs, of

N. Y. SUPREME COURT. GEN'L TERM, the estate of L. Hayes, deceased.

FIRST DEPARTMENT. By his power of attorney, Elwards

Algernon S. Sullivan, public adminwas to take charge of and have a general superintendence, care and control istrator, &c., applt, v. Concepcion Henover the property, real and personal, of lera et al., rexpt.

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