premises, but connected with the prem This action was brought to recover ises “by employment in any business $500 damages for the conversion of for which the premises were used." chattels, stated to be worth $146.

None of these prerequisites were A verdict of $35 was rendered for established. The service was not good the plaintiff. Both parties claimed to and the justice acquired no jurisdiction. be entitled to costs. The clerk refused Act of 1868, supra.

1 Hill, 5 12. to tax plaintiff's costs, but did adjust te The counsel for Mordaunt objected | defendant's under objection from plainpreliminarily to the sufficiency of the titl’s counsel. A motion was made at atlidavit of the service of the summons. Special Term for an order setting aside The objection was overruled and the the taxation of costs in favor of defendcounsel excepted.

ant, and directing the clerk to adjust The respondent urges that by the costs in favor of plaintiff, which motion appearance of the tenant and under, was denied, and on appeal to the Gentenant the irregularity, if any, was eral Term the order denying judgment waived.

was affirmed. Held, This view is erroneous. It Estes & Barnard, for applts. is not sustained by authority, and can J. I. Perry, for respt. not rest on principle. The question of

IIeld, no error. That by the provisjuriediction is open to examination at ions of $ 305 of the Code, defendant all stages of a controversy, unless

was entitled to costs; that the canse of waived, which does not always follow action was of the class within the jurisfrom an appearance when the objection diction of a justice of the peace (Code is taken, overruled and exception noted, S 23); that plaintiff's could not, by an

The proceedings were erroneous and excessive claim of damages, oust a justhe result must be reversed and restitu- tice of the peace of jurisdiction and tion ordered with costs.

thereby entitle themselves to full costs in Opinion by Brady, J.; Davis, P.J.,

a higher court upon recovery of a nomand Daniels, J., concurring.

inal sum.

That the verdict was conclusive as to

the amount in controversy and in deCOSTS.

termining whether a justice of the N. Y. COURT OF APPEALS.

peace would have had jurisdiction, and Powers et al., applts. v. Gross, respt. is affecting the question of costs. Decided June 13, 1876.

Order attirmed.
In an action to recover damages for Opinion by Allen, J.

the conversion of chattels, where
plaintiff claimed $500 and recovered

PRINCIPAL AND AGENT. $35, defendant is entitled to costs. Plaintiff cannot by an excessive SUPREME COURT OF PENNSYLVANIA. claim oust a justice of the peace of

Wray, pltf. in error v. Evails, deft. jurisdiction and thereby entitle him- in error. self to costs. The verdict is conclusive as to the amount in controversy

Decided Jnn. 6, 1876. and in determining whether a jus- The immediate employer of the agent tice of the peace would have juris or servant who causes the injury, is diction.

alone responsible for such injury; to

As long

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

be two superiors severally responsible. Error to the Court of Common Pleas Also held, That the doctrine of resNo 2, Alleghany County.

pondeat superior has no applicability By agreement between the Pitts- to the defendant in this case. burgh Gas Company and James T. as Davis continued to progress with the Wray, the latter undertook to dig a work, in a manner satisfactory to the trench, in which to lay the gas pipes of engineer of the gas company, Wray had said company, in Gas street and Sec- no more power over the work than an ond avenue, from the works of said entire stranger. Had he volunteered company to the gas holder, in the 17th advice as to the care necessary to preWard of the city of Pittsburgh. This serve the public from danger, it would work was to be done under the super- have been to no purpose, as he had no vision of the company's engineer. power to enforce it. The matter was It was also part of the contract, that out of his hands; he could not assume should Wray, at any time, neglect or the control of the work until the subrefuse to supply a sufficiency of mate contract should be forfeited by non-perrial or workmen to properly execute the formance. work, the company might furnish the

Again, beyond controversy, Davis same, after giving three days notice, was, in this case, liable for the negliand charge the same over to Wray.

gence of his employees in the prosecuBy a sub-contract similar in its terms, tion of the work; hence, to charge this except that if the work was not done negligence over to Wray is to make two to the satisfaction of the gas company's superiors severally liable for the same engineer, the contract was to be for injury or misfeasance. This, however, feited on two days notice, Wray passed violates the rule already referred to, the job to Michael. Davis. Each of the which negatives such a proposition. contracts contained a covenant that the

Judgment reversed, and a venire fa contractor should be responsible for all cias de novo awarded. losses, damages, fires, and recoveries

Opin'un by Gordon, J. that might happen or be had by reason of the carrying on of sai' work, arising

TOWN BONDS. BONA FIDE through negligence, mistake or other

HOLDER. wise.

In execution of his contract with U. S. Circuit CourT-NORTHERN DIsWray, Davis proceeded to dig the

TRICT OF NEW YORK. trench along Second

avenue, into Manassah Bailey v. The Town of which, on the night of October 9th, Lansing. 1873, the plaintiff fell and broke his Where a county judge has decided that lig. The evidence shows that Davis town bonds shall be issued for railemployed and supervised the hands who road purposes, and appointed comdid this work, and that Wray had no missioners for that purpose, and a control whatever over them.

certiorari is granted to review his Held, That the immediate employer decision, and the commissioners afof the agent or servant, who causes the terwards issue the bonds to the railinjury, is alone responsible for such in road company, both parties having

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 pre- quired by law preliminarily to entering sumption derived from his posses- upon the duties of their trust, they exsion of the coupons before they be- ecuted and delivered the bonds to the came due.

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. Wallace, J. This action is brought It does not appear how plaintiff acupon interest coupons originally at- quired title to the coupons in suit, but tached to bonds issued in aid of the does appear that they were in his posCayuga Lake Railroad Company by session before they fell due. It does commissioners appointed for that pur- not appear whether or not he ever pose by the county judge of Tompkins owned the bonds to which the coupons County, under the provisions of the were originally attached. Upon these bonding acts of 1870 and 1871 of the facts, I do not think the plaintiff is enState of New York.

titled to recver.

The bonds were These acts authorize the county judge, originally negotiated between the comupon the presentation of a petition by missioners and the railroad company in 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 periding 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 it 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 The county judge having entertained are uniform that upon the allowance of the petition of the tax-payers and ta- a certiorari the effect of the judgment ken 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

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

MENT. 249.

N. Y. SUPREME COURT. GENERAL TERM Under these circumstances, the com

FOURTH DEPARTMENT. missioners were no more justified in

Coughlan, applt. v. The N. Y. C. attempting to issne bonds in behalf of and II. R. R. R. Co., respt. the town than they would have been

Decided June, 1876. if their agency had been revoked; and the railroad company, having knowl. A settlement made after suit is com

menced and without notice to an ut. edge of the fact, acquired no title to

torney is not good, and the attorney the bonds which they could enforce as may either prosecute the action or against the town. The case is not sue the parties making such frauduanala gous to that where property has

lent settlement. been sold under an execution upon a

Plaintiff was injured on defendant's 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 Coinafter 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 acqnire no title. Although attorney was to pay all the expenses. the anthority of the commissioners to

The action was commenced by the act as agents of the town was sus- service of a summons on a director of pended, such a purchaser would acquire defendant. When the summons was the rights of a bona fide holder of com- served, the director was notified of the mercial paper, and could recover a-claim of the attorney and the nature of gainst the principal as though the au- it, and the General Superintendent of thority once conferred upon the agent defendant was also notified of the athad never been revoked. But in such torney's claim.

After the summons case it would be incumbent upon the was served and after this notice, deplaintiff' to show that he had purchased fendant settled with plaintiff for $1000. innocently, relying upon the ostensible The attorney then prosecuted the acauthority of the agent. Coddington v. tion, and in its answer defendants set Bay, 20 John. 636.

up the release of plaintiff, and offered These views lead to the conclusion same in evidence on trial. The refthat when it appeared that the bonds eree, to who m the action was referred were issued in fraud of the rights of found the release fraudulent and void the defendant, the burden was cast as against the attorneys. That the atupon the plaintiff' to show that he was torneys had no notice of the settlement. a purchaser in good faith and for value. That they had a written agreement He could not rest upon the presumption with plaintiff to prosecute said action derived from his possession of the cou- and pay expenses. That plaintiff suspons before they became due. Regers tained damages by reason of the acciv. Morton, 12 Wend., 484; Smith v. dent to the extent of $1000. Sac County, 11 Wall., 139.

The plaintiff appeals. Judgment is ordered for the defend Strong & Goodyear, for applt. ant

Lanning & Willetts, for respt.

Held, That although generally an QUO WARRANTO. POWER OF attorney has no lien for his costs until

LEGISLATURE. the recovery of a judgment or verdict, N. Y. COURT OF APPEALS. the court will protect the attorney The People, applts. v. Flanagan, reagainst a fraudulent or collusive settle- spt. ment between his client and the ad

Decided May 23, 1876. verse party, by setting aside any release The People having, through their conthat may have been given, or where the stitutional agents ratified an election right to costs has not become complete

at which a judicial officer is elected, by reason of there being no recovery

it is not competent for them to quesentitling the attorney to his costs, the It is competent for the legislature, as

tion it by quo warranto. attorney will be permitted to proceed between the people and one elected to in the action as if no release had been office, to construe its own act, and to given, until the costs are collected. waive any irregularity in holding the

election and thus confirm the title. That if the fraudulent release is given

This was an action in the nature of on the fraudulent settlement made before verdict, and the case is one in

a quo warranto to test the title of de

fendant to the office of Justice of the which the damages in the case must be

Tenth Judicial District Court of the ascertained before the right of the attorney to costs is determined, the relief City of New York, which district is he is entitled to is to prosecute the ac

composed of the three towns set off

from Westchester county and annexed tion to judgment, or where that cannot

to the city of New York by chap. 613 be done, to prosecute a new action

of the Laws of 1873, passed May 23, against whoever may be legally liable

1873. to redress the wrong done him. That

The 5th section declared what territhe attorney is this case is allowed to go tory should constitute the district, and on with the action so far as is necessary that “at the next general election,” to protect him.

there should be elected a justice of said That the release having been set up district. Section 18 declared that the 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 frandulent, 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.” tent.

Defendant was elected at an election That it was the duty of the referee, in 1873, at which the candidates for the having found the release fraudulent, to office were put up and voted for. He have complied with the request of the entered upon the discharge of his duplaintiff's attorney and ascertained the ties January 1, 1874, and has continued damages sustained by the plaintiff, and to discharge them since that time, and to have given judgment against the de- there is no other claimant for the office. fendant for one-half the amount there In 1874 another act was passed, of.

Chap 329

of the laws of 1874, Judgment reversed.

which re-enacted, with some amendOpinion by Mullin, P.J.

ments, said chapter 613, Laws of 1873,

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