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Estes & Barnard, for applts.
J. I. Perry, for respt.

Held, no error. That by the provis-
ions of 305 of the Code, defendant
was entitled to costs; that the cause of
action was of the class within the juris-
diction of a justice of the peace (Code
§ 23); that plaintiffs could not, by an
excessive claim of damages, oust a jus-
tice of the peace of jurisdiction and
thereby entitle themselves to full costs in
a higher court upon recovery of a nom-
inal sum.

That the verdict was conclusive as to
the amount in controversy and in de-
termining whether a justice of the
peace would have had jurisdiction, and
as affecting the question of costs.
Order affirmed.
Opinion by Allen, J.

In an action to recover damages for
the conversion of chattels, where
plaintiff claimed $500 and recovered
$35, defendant is entitled to costs.
Plaintiff cannot by an excessive
claim oust a justice of the peace of
jurisdiction and thereby entitle him-in
"self to costs. The verdict is conclu-
sive as to the amount in controversy
and in determining whether a jus-
tice of the peace would have juris-

Wray, plff. in error v. Evans, deft.

Decided Jnn. 6, 1876.

The immediate employer of the agent
or servant who causes the injury, is
alone responsible for such injury; to

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him alone the rule of respondeat superior applies, and there cannot be two superiors severally responsible.

Error to the Court of Common Pleas No 2, Alleghany County.

By agreement between the Pittsburgh Gas Company and James T. Wray, the latter undertook to dig a trench, in which to lay the gas pipes of said company, in Gas street and Second avenue, from the works of said company to the gas holder, in the 14th Ward of the city of Pittsburgh. This work was to be done under the supervision of the company's engineer. It was also part of the contract, that should Wray, at any time, neglect or refuse to supply a sufficiency of material or workmen to properly execute the work, the company might furnish the same, after giving three days notice, and charge the same over to Wray.

jury; to him alone the rule of respondeat superior applies, and there cannot be two superiors severally responsible.

Also held, That the doctrine of respondeat superior has no applicability to the defendant in this case. As long as Davis continued to progress with the work, in a manner satisfactory to the engineer of the gas company, Wray had no more power over the work than an entire stranger. Had he volunteered advice as to the care necessary to preserve the public from danger, it would have been to no purpose, as he had no power to enforce it. The matter was out of his hands; he could not assume the control of the work until the subcontract should be forfeited by non-performance.

Held, That the immediate employer of the agent or servant, who causes the injury, is alone responsible for such in

Again, beyond controversy, Davis was, in this case, liable for the negligence of his employees in the prosecution of the work; hence, to charge this negligence over to Wray is to make two superiors severally liable for the same injury or misfeasance. This, however, violates the rule already referred to, which negatives such a proposition.

By a sub-contract similar in its terms, except that if the work was not done to the satisfaction of the gas company's engineer, the contract was to be forfeited on two days notice, Wray passed the job to Michael Davis. Each of the

contracts contained a covenant that the contractor should be responsible for all losses, damages, fires, and recoveries that might happen or be had by reason of the carrying on of sai' work, arising through negligence, mistake or otherwise.

In execution of his contract with U. S. CIRCUIT COURT-NORTHERN DISTRICT OF NEW YORK. Manassah Bailey v. The Town of Lansing.

Wray, Davis proceeded to dig the trench along Second avenue, into which, on the night of October 9th, 1873, the plaintiff fell and broke his leg. The evidence shows that Davis employed and supervised the hands who did this work, and that Wray had no control whatever over them.

Where a county judge has decided that town bonds shall be issued for railroad purposes, and appointed commissioners for that purpose, and a certiorari is granted to review his decision, and the commissioners afterwards issue the bonds to the railroad company, both parties having

Judgment reversed, and a venire fa cias de novo awarded.

Opin on by Gordon, J.


knowledge of the certiorari, the rail- Supreme Court reversed the judgment. road company acquires no title to This reversal, in legal effect, vacated the bonds which they can enforce the entire proceedings taken before the against the town. An innocent purchaser of such bonds county judge. The certiorari was the would acquire the rights of a bona common law writ. After it was issued fide holder of commercial paper and and notice thereof given to the comcould recover, but the burden of missioners, and before the commissionproof is upon him to show that he is ers had taken the oath of office rea purchaser in good faith and for value; he cannot rely upon the presumption derived from his possession of the coupons before they be came due.

quired by law preliminarily to entering upon the duties of their trust, they executed and delivered the bonds to the railroad company, the latter having full

The facts of the case appear in the notice of the certiorari, and giving the opinion. commissioners a bond of indemnity.

It does not appear how plaintiff acquired title to the coupons in suit, but does appear that they were in his possession before they tell due. It does not appear whether or not he ever owned the bonds to which the coupons were originally attached. Upon these facts, I do not think the plaintiff is entitled to recover. The bonds were originally negotiated between the commissioners and the railroad company in

These acts authorize the county judge, upon the presentation of a petition by the requisite number of the tax-payers violation of good faith. The parties. of the county, to ascertain by judicial to the transaction were aware that proinquiry if the majority of the tax-pay- ceedings were pending to annul the ers in number and in taxable property authority of the commissioners to issue desire the town to issue its bonds in the bonds. When the certiorari issued, aid of the railroad, and if he ascertains the judgment and proceedings upon such to be the case, he is to appoint which it was founded were removed to three commissioners to execute and the Supreme Court, and all proceedings issue bonds in behalf of the town and under the judgment which had not acinvest them in the stock or bonds of the tually been put in motion were susrailroad company. pended. The decisions of this State are uniform that upon the allowance of a certiorari the effect of the judgment

The county judge having entertained the petition of the tax-payers and taken proofs, adjudged that the bonds which it is taken to review, except in should be issued, and appointed com- the single exception of an execution missioners for the purpose. Opposing already issued and in the process of tax-payers contested the proceeding, being executed, is suspended as to all and, pursuant to the statute, obtained a proceedings under it and as to all colwrit of certiorari for the review of the lateral matters. The judgment is not decision of the county judge by the even evidence in a case between the Supreme Court. Upon review, the same parties. It is as completely sus

Wallace, J. This action is brought upon interest coupons originally attached to bonds issued in aid of the Cayuga Lake Railroad Company by commissioners appointed for that purpose by the county judge of Tompkins County, under the provisions of the bonding acts of 1870 and 1871 of the State of New York.

pended as though it had never been ATTORNEY'S COSTS.
rendered. Lannitz v. Dixon, 5 Land.,



Coughlan, applt. v. The N. Y. C. and II. R. R. R. Co., respt.

Decided June, 1876.


Under these circumstances, the commissioners were no more justified in attempting to issue bonds in behalf of the town than they would have been if their agency had been revoked; and the railroad company, having knowl. edge of the fact, acquired no title to the bonds which they could enforce as against the town. The case is not analegous to that where property has Plaintiff was injured on defendant's been sold under an execution upon a judgment subsequently reversed. I do road. After the injury an attorney not intend to intimate that if the bonds called on him and offered to prosecute had been issued by the commissioners the action against said Railroad Comafter the certiorari, and came to the pany to judgment in consideration of hands of an innocent purchaser, the receiving one-half the recovery, and the latter would acquire no title. Although attorney was to pay all the expenses. the authority of the commissioners to act as agents of the town was sus pended, such a purchaser would acquire the rights of a bona fide holder of commercial paper, and could recover a gainst the principal as though the authority once conferred upon the agent had never been revoked. But in such case it would be incumbent upon the plaintiff to show that he had purchased innocently, relying upon the ostensible authority of the agent. Coddington v. Bay., 20 John. 636.

The action was commenced by the service of a summons on a director of defendant. When the summons was served, the director was notified of the claim of the attorney and the nature of it, and the General Superintendent of defendant was also notified of the attorney's claim.

These views lead to the conclusion that when it appeared that the bonds were issued in fraud of the rights of the defendant, the burden was cast upon the plaintiff to show that he was a purchaser in good faith and for value. He could not rest upon the presumption derived from his possession of the coupons before they became due. Regers v. Morton, 12 Wend., 484; Smith v. Sac County, 11 Wall., 139.

Judgment is ordered for the defend


settlement made after suit is com

menced and without notice to an attorney is not good, and the attorney may either prosecute the action or sue the parties making such fraudulent settlement.

After the summons was served and after this notice, defendant settled with plaintiff for $1000.

The attorney then prosecuted the action, and in its answer defendants set up the release of plaintiff, and offered The refsame in evidence on trial. erce, to who m the action was referred found the release fraudulent and void as against the attorneys. That the attorneys had no notice of the settlement. That they had a written agreement with plaintiff to prosecute said action and pay expenses. That plaintiff sustained damages by reason of the accident to the extent of $1000.

The plaintiff appeals.

Strong & Goodyear, for applt.
Lanning & Willetts, for respt.

Held, That although generally an QUO WARRANTO. POWER OF

attorney has no lien for his costs until
the recovery of a judgment or verdict,
the court will protect the attorney
against a fraudulent or collusive settle-
ment between his client and the ad-
verse party, by setting aside any release
that may have been given, or where the
right to costs has not become complete
by reason of there being no recovery
entitling the attorney to his costs, the It
attorney will be permitted to proceed
in the action as if no release had been
given, until the costs are collected.

That if the fraudulent release is given on the fraudulent settlement made before verdict, and the case is one in which the damages in the case must be ascertained before the right of the at

torney to costs is determined, the relief he is entitled to is to prosecute the action to judgment, or where that cannot be done, to prosecute a new action against whoever may be legally liable to redress the wrong done him. That the attorney is this case is allowed to go on with the action so far as is necessary to protect him.

That it was the duty of the referee, having found the release fraudulent, to have complied with the request of the plaintiff's attorney and ascertained the damages sustained by the plaintiff, and to have given judgment against the defendant for one-half the amount thereof.


N. Y. COURT OF APPEALS. The People, applts. v. Flanagan, respt.

The 5th section declared what territhat "at the next general election," tory should constitute the district, and there should be elected a justice of said district. Section 18 declared that the

That the release having been set up in the answer, the referee was justified act should take effect January 1, 1874, under the code in trying the question "except as to such parts as are otherwhether or not the same was fraudulent, wise provided for, and as to such parts and any matter constituting a defense it shall take effect at the time or times to such part of the answer was compe- in this act specified."


Judgment reversed.
Opinion by Mullin, P. J.

Decided May 23, 1876.

The People having, through their con-
stitutional agents ratified an election
at which a judicial officer is elected,
it is not competent for them to ques-
is competent for the legislature, as
tion it by quo warranto.
between the people and one elected to
office, to construe its own act, and to
waive any irregularity in holding the
election and thus confirm the title.
This was an action in the nature of
a quo warranto to test the title of de-
fendant to the office of Justice of the
Tenth Judicial District Court of the

City of New York, which district is
from Westchester county and annexed
composed of the three towns set off
to the city of New York by chap. 613
of the Laws of 1873, passed May 23,

Defendant was elected at an election in 1873, at which the candidates for the office were put up and voted for. He entered upon the discharge of his duties January 1, 1874, and has continued to discharge them since that time, and there is no other claimant for the office.

In 1874 another act was passed, Chap. 329 of the laws of 1874, which re-enacted, with some amendments, said chapter 613, Laws of 1873,

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