the assignor was not made a party. So far the comments of the court upon the two authorities bore upon the case then in hand, and served to show that it stood outside of their scope and range. But then followed a suggestion throwing doubt upon their doctrine where the assignor's right remained. The learned judge conceded that right but questioned only its extent, and doubted whether the equity of the assignor extended to the land itself, or merely to a lien for the definite sum of the debt secured by the mortgage. No such doubt remains in

our minds.

In Dalton v. Smith, 86 N. Y. 176, we held that the right of the assignor attached to the land if the assignee became purchaser, and to the purchase-money if the title went to a stranger. In that case the appellant's points cited Bloomer v. Sturges as having effectually shaken the previous authorities. Our opinion then was and still remains that the assignment is in substance a mortgage or pledge of the transferred security; that it gives to the assignee merely a defeasible title which ends upon payment of the debt, leaving the ownership in the assignor precisely as if no transfer had been made; that such defeasible title cannot be changed or enlarged as against the assignor by any act or dealing of the assignee, or his representatives, to which the assignor is not in some manner a party; that if the assignee forecloses the mortgage without also foreclosing the assignor's right, and becomes a purchaser at the sale, he holds the land as a substitute for the mortgage, and precisely as he held the latter, and by no other, or different or stronger title; and that whatever of enefit results from extinguishing the mortgagor's equity inheres in the security assigned in its changed form, and goes of necessity to him who resumes his ownership by payment of the debt. The sale to the assignee, freeing the property from the mortgagor's equity, affected the relations of both assignor and assignee with the original mortgagor, but not at all their relations with each other. The security was thereby strengthened and made more valuable, but remained a security still, and held by the same defeasible title, and upon the same conditions as at first. That is not only the logical but the just view of the transaction. The assignee gets exactly what he bargained for, and what is his of right. While he holds the security, whether in the form of mortgage or of land, he gains the added protection of the added value; but when his debt is paid and title annulled, he has no claim to any thing more. It is said in the Slee case to be the invariable rule that where the mortgagee has gotten a renewal of a lease, or obtained any other advantage in consequence of his situation as such mortgagee, the mortgagor coming to redeem is entitled to the benefit thereof. We have carried that doctrine far enough to hold that one who received as collateral a salt block, and leased it with others of his own, to a corporation, taking stock in exchange, might be deemed to have elected to treat the property as entitled to the stock, and that the latter was an incidental benefit accruing, the right to which on redemption was the mortgagor's. Chapman v. Porter, 69 N Y. 276. If the assignment to Gilbert be treated as a pledge-Campbell v. Parker, 9 Bosw. 322; Dalton v. Smith, supra the rule is equally familiar that the pledgee must account for inci

dental income, or profits derived from the pledge, and that equity will not tolerate a separation of the pledge from the debt. Here the foreclosure and sale was an incident belonging to possession of the collateral, and to the trust which that possession created. It became the duty of the administrator to sell because the trust security demanded that action for its safety and strength. It became the duty of the administrator to buy for the protection of the estate, and of the assignor ultimately liable, ' and whatever of benefit resulted was an incident of the trust, and belonged to the two parties concerned, according to their respective rights, and when the assignor redeemed belonged wholly to them.

The argument founded upon the doctrine of merger is well answered by the opinion of the general term, which shows that in equity such merger will never be allowed against the interest of the parties or their obvious intention, or where the two estates are held in different rights. We have recently affirmed that view of the doctrine. Smith v. Roberts, 91 N. Y. 475.

The contention that some unpaid interest should be accounted for by defendant cannot survive the settlement of the administrator's accounts by the surrogate. The notes were then paid with interest. If a greater rate was chargeable that was the time and occasion to have asserted the claim.

The order of the general term should be affirmed, with costs.
All concur.

Order affirmed.

LYDDY, Appl't, v. LONG ISLAND CITY, Resp't.

January 18, 1887.

One can contract with a municipal corporation only through its authorized agents, and is chargeable with notice of the limitations upon their official authority imposed by general laws.*

The act of 1870, chapter 719, authorizing the common council of Long Island City to employ an attorney, was repealed by the act of 1871, chapter 461, and the city is not liable for services rendered by an attorney employed by the common council subsequent to the act of 1871.

James M. Lyddy, for appellant. Jesse Johnson, for respondent. PER CURIAM. The plaintiff had judgment upon a trial before the court without a jury. On appeal the general term reversed the judgment for alleged errors of law, and ordered a new trial.

The plaintiff appeals from such reversal upon the usual stipulation for judgment absolute in the event of an affirmance by this court of the order appealed from.

The action was brought to recover for legal services alleged to have been performed by the plaintiff at the request and upon the employment of the common council of Long Island City, in the investigation of certain alleged abuses by the board of water commissioners in the administration of the affairs of the water department of the city.

It is claimed by the respondent that the common council had no authority, under its charter, to create any liability against the city for

*See 21 Eng. Rep. 67.

such services, a previously existing statute giving such authority having been repealed before the rendition of the services.

The defendant was originally organized as a city, under chapter 719 of the Laws of 1870, and among the powers given to the common council by that act, was that of employing "an attorney and counsel when the business of the board required one, and to pay them a reasonable compensation."

This charter was revised and extended by chapter 461 of the Laws of 1871, and it is claimed by the respondent that thereby the authority of the common council to employ attorneys was taken away, and that thereafter it was placed under an absolute disability to create any debt or liability on the part of the city for legal services.

While no express repeal of the provisions of the law of 1870 is contained in the act of 1871, it is provided that such provisions thereof as are "not inconsistent with the provisions of this act are to be construed with and made applicable hereto." A clear implication arises from this language that such parts of the former statute as are repugnant or inconsistent with the provisions of the later act are intended to be repealed.

It is properly urged by the appellant's counsel that repeals by implication are not favored by the law, and that a prior statute shall not be deemed repealed by a later one when they can both be given a legitimate effect and stand together.

The rule, however, implies that if the two acts are manifestly repugnant and tend to nullify each other, then the old enactment must yield to the later statute. Mark v. Stone, 97 N. Y. 572.

Upon examining and comparing these statutes with a view of discovering the legislative intent upon the subject, it is apparent that the act of 1871 is much more elaborate and attempts to establish a more comprehensive, systematic and detailed form of municipal government than that provided by the act of 1870. Among other things this charter undertook to classify the business of the city, and for that purpose provided for the establishment of eight separate departments, consisting of the following:

"Finance department and receiving taxes, law department, department of public works, police and health department, a board of education, board of water commissioners, a fire department, a board of assessors."

Of the law department it was enacted that it should "have charge and conduct of all law business of the corporation, and of all the co-ordinate departments created by this act. The chief officer of this department shall be called the attorney and counsel to the corporation. For such services he shall receive an annual salary of $2,000 in lieu of all charges against the city for the same. He shall be appointed by the mayor, and shall hold his office for the term of three years, or until his successor shall have been appointed."

The common council are required to raise annually a sum, not exceeding $75,000, for the wants and welfare of the city, which sum is to be the budget for the ensuing year, and is required to be divided among the various departments of the city in certain specified proportions, the

sum of $8,000 being assigned to the maintenance of the law department and expenses of local judiciary. The common council is forbidden to divert any money from one fund or budget to another.

It is also forbidden to borrow money or to issue bonds or other evidences of debt, or to incur liability for the payment of any money or direct any work for the payment of which the city may become liable beyond the amount of cash applicable to the particular purpose then in the treasury of the city, and all acts done, bonds, or other evidences of debt issued and debts contracted contrary to the true meaning and intent of this section, shall be absolutely null and void as against said city, but the members of the common council voting therefor shall be jointly and severally liable therefor.

The slightest consideration of these provisions shows an insurmountable repugnancy, existing between them and the provisions of the act of 1870.

By the later act the selection and appointment of attorneys to transact the legal business of the corporation is confided wholly to the mayor, their compensation is fixed and limited by law and is payable from a fund specially and inviolably devoted to that purpose, and it purports to organize a complete and perfected bureau for the transaction of all the corporate legal business of the municipality.

It was not contemplated that extra counsel should be employed to perform legal services for the corporation, and no power was lodged in the authorities to provide funds for their compensation even if employed.

The scheme of the act was to guard the city from loose, reckless and indefinite expenditure, and limit the power of its authorities to create debts by the most careful and stringent provisions.

All of the law business of the corporation was required to be performed by the officers of the law department and their compensation was limited, and the common council was prohibited from using any of the funds raised for that department for any other purpose.

The carefully devised plan to limit the power of the common council in the incurring of liability on the part of the city would be frustrated and the scheme of the act in respect to the financial economy of the city would be nullified and defeated by the retention of the provisions of 1870.

It is not in accordance with settled rules of construction to ascribe to the law-making power an intention to establish conflicting and hostile systems upon the same subject or to leave in force provisions of law by which the later will of the legislature may be thwarted and overthrown. Such a result would render legislation a useless and idle ceremony and subject the law to the reproach of uncertainty and unintelligibility.

We are, therefore, of opinion that the provisions of the act of 1870, referred to, were inconsistent with, and necessarily repealed by, the subsequent statute, and that the common council had no power to bind the defendant by the employment of the plaintiff to render legal services. The plaintiff could contract with the city only through its authorized agents, and he is chargeable with notice of the limitations upon their official authority imposed by general laws. Donovan v. City of New York, 33 N. Ÿ. 293.

It follows, as the necessary result of the want of power on the part of the common council to create liability by express contract, that it could not legalize such claim by acknowledgment, ratification or otherwise.

The question here discussed is fairly presented by the exceptions taken to the findings of law, that the defendant is indebted to the plaintiff, and the refusal to find that the liability of the defendant is controlled by the statute of 1871.

The judgment should be affirmed, and judgment absolute ordered in favor of defendant, with costs.

All concur.

Judgment affirmed.

PEOPLE, EX REL. BRIDGEMAN, Resp't, v. HALL, Appl't.

The charter of the city of Troy contains this provision: "In the event of sickness or absence of the chamberlain, if he shall neglect to appoint some suitable person to discharge the duties of the office, the mayor may appoint some suitable person, to be approved by the common council, to discharge the duties of such officer during such sickness or absence."

On the 7th of February, 1884, the mayor sent to the common council the following communication:

“GENTLEMEN -It becomes my painful duty to inform you that Henry S. Church, the chamberlain of this city, has abandoned his office, and according to all accounts has left the city. A partial investigation and examination of his accounts, this day made, renders it morally certain that he is a defaulter to the city in a large sum of money. Under these circumstances, and in pursuance of the provisions of the charter, I do hereby appoint, subject to your approval, Benjamin H. Hall, to discharge the duties of the office of chamberlain during the absence of said Henry S. Church."

The appointment of Hall was duly approved by the common council, and he subsequently entered upon the duties of the office.

It was afterward insisted by Hall that, although the appointment on its face was an ad interim one, yet that it was in legal effect an appointment for the full term of three years, for the reason that the mayor, under the circumstances existing at the time, had no power to make a temporary appointment, but did have power to nominate a chamberlain for a full term, and no other. Held, that if the power to make a temporary appointment could not, under the circumstances, be exercised, then the appointment of Hall was void, and did not inure as an appointment for a full term.

A former judgment cannot operate as an estoppel when, by its terms, it expressly disclaims any decision of the matter in controversy, notwithstanding it may be inferred as a necessary sequence to the fact found that the question at issue was really decided.

Appeal from a judgment of the general term, third department, affirming a judgment of the special term. The opinion states the facts. Esek Cowen, for appellant. R. A. Parmenter, for respondents. ANDREWS, J. We think the judgment should be affirmed, and shall content ourselves by stating briefly the reasons for this conclusion.

The controversy relates to the title to the office of chamberlain of the city of Troy, at the time of the commencement of the action, in September, 1885. The relator claims title by virtue of his nomination by the mayor, May 21, 1885, for the office of chamberlain "for the ensuing term of three years," and its confirmation under the provisions of the charter, by the failure of the common council to reject the same.