Hasbrouck v. Bouton.

Lewis Bouton, for the plaintiff.

McDowell & Edwards, for the defendant.

By the Court, POTTER, J. The plaintiff claimed title to the property in question; first, as a gift from her mother of an ewe lamb, and an agreement then made by the mother with George Hasbrouck (the defendant in the execution under which the sheep were taken) to keep the sheep for the plaintiff, upon the terms of giving the plaintiff all the increase, and Hasbrouck to have the wool for the keeping. The claim by the plaintiff is, that this sheep and its increase for some six years, amounted to some seventeen sheep. The claim of the defendant was, that these sheep, and the wool upon them, belonged to George Hasbrouck, and that if the sheep belonged to the plaintiff, the defendant still had a right to levy upon them and sell Hasbrouck's interest in the wool. The question of the ownership of the sheep was a question of fact, fairly tried, and found in favor of the plaintiff, and I am not able to see any question that we can review, upon that point. It was the main and material issue upon the trial, and no error prejudicial to the defendant seems to have been committed on the trial, upon this point. The defendant urges the argument that the sheep in question, upon the plaintiff's theory, belonged, with special defined interests, to the plaintiff and George Hasbrouck together; the plaintiff having title to the carcasses, and Hasbrouck the title to the wool, as a consideration for the care and keeping; that the plaintiff had no right to the wool because she owned the carcass; and that the measure of damages was wrong, because she recovered for both carcass and wool.

The questions of law were disposed of by the judge, at the trial, as follows: "Although the defendant (in the execution) was entitled to the wool raised from the sheep,

Hasbrouck v. Bouton.

yet, nevertheless, the title to the sheep was in the girl, if they are the increase of the lamb, as against this defendant, who would not have a right to levy upon the wool upon the backs of the sheep, for a debt against the grandfather. He has no right to set up that claim for the wool, and the plaintiff has the right to set up the claim for the full value of the sheep."

The defendant's counsel duly excepted to that portion of the charge in which the court charged the jury that, "although the defendant (in the execution) was entitled to the wool raised from the sheep, yet, nevertheless, the title of the sheep was in the girl, if they are the increase of that lamb, as against this defendant, who would not have the right to levy upon the wool upon the backs of the sheep, for a debt against the grandfather. He has no right to set up that claim for the wool, and the plaintiff has the right to set up the claim for the full value of the sheep;" and to every part of such portion of the charge. The defendant's counsel requested the court to charge the jury, that George Hasbrouck had an interest in the sheep claimed for, at least to the extent of the wool growing. thereon at the time of the levy and sale. The court refused so to charge, and the defendant duly excepted. The defendant's counsel also requested the court to charge the jury, that if George Hasbrouck had an interest in the sheep to the extent of the wool growing thereon, at the time of the levy and sale, the defendant had a right to levy upon and sell such interest. The court refused so to charge, and the defendant duly excepted. The defendant's counsel also requested the court to charge the jury, that if the plaintiff is entitled to recover for any of the sheep claimed for, her recovery must be limited to the value of the sheep, less that part of the value which the wool constituted. The court refused so to charge, and the defendant duly excepted. This presents all the questions of law that arise in the case.

Hasbrouck v. Bouton.

I think the learned judge correctly laid down the law in this case. George Hasbrouck had no title to these sheep; he was a mere bailee of the sheep. Nor had he any title to the wool, until he had performed his entire contract of keeping the sheep till shearing time; and for the entire performance of this contract on his part, he was entitled to the consideration promised, to wit, the wool. Part performance on his part, only, gives no title; and the defendant, by his levy, took no other or better title than George Hasbrouck, the bailee, had. The case of Pierce v. Schanck, (3 Hill, 28,) illustrates the rule. The plaintiff delivered logs at a saw mill, to be sawed under a contract with the miller, that he should saw them into boards, within a specified time, and that each party should then have one half of the boards. This was held to be a bailment, merely; the title remained in the plaintiff until the logs were manufactured into boards, according to the contract; that the contract was entire; the sawyer obtained no title by sawing a part of them; and it was held, that the bailor could bring trover for any part of the boards that was converted before a full performance of the contract. (See Cunningham v. Jones, 20 N. Y. 486; 22 id. 162; Jones on Bailm. 100, 101.)

George Hasbrouck had no interest even in the wool, in February, that could be levied upon, and none before shearing time, which was conceded to be in June. Before that time his interest was a mere contingent one, dependent upon the full performance of his contract. The wool was the compensation he was to receive for keeping and supporting these sheep. There is not known in practice, and cannot be in law, such a union of interest or title, or partnership, in animals, as that one party shall own the carcass, the other the wool, the hair or the feathers. Though we are not called upon to decide what interests parties might create by special contract, expressing such a union. This was no such contract.

Brenn v. City of Troy.

But the defense proceeded upon no such theory, either in their answer or on the trial. They levied upon and sold the whole property; they sold the plaintiff's property as the property of George Hasbrouck; not as bailee, but as absolute owner of the sheep; not the wool only, but the carcass, carrying the wool with it. He took, and assumed the right to sell, and did sell, the plaintiff's interest in the sheep, and this title being found by the jury to be in the plaintiff, the charge, and refusals to charge, by the learned judge, were right. The judgment should be affirmed.

[THIRD DEPARTMENT, GENERAL TERM, at Binghamton, June 6, 1871. Miller, P. J., and Potter, Justice.]

BRENN vs. THE CITY OF TROY.

Where the charter of a city gave to the common council the power to cause streets, alleys and avenues to be opened and widened, and to be regulated, graded and paved, and from time to time to be repaired or regraded, and provided that "the expense of all new work or improvements and alterations not in the nature of ordinary repairs, shall be assessed and be a lien upon the property benefited, when completed, in sections or as a whole, and so certified to the comptroller, by the local assessors;" and the common council, by resolution, directed the city engineer to establish the grade of an avenue, from one specified point to another, at an expense not exceeding $2500, and directed the proper authorities to advertise for proposals for grading said avenue; Held that the latter clause of the above provision required the expense of the work in question to be assessed upon the property directly benefited thereby, and not upon the property of the city at large; the work contemplated being "new work," within the meaning of the charter, and not in the nature of "ordinary repairs."

Held, also, that to justify a general tax upon the property of the city for a work or improvement in the nature of that proposed, two things were required by the charter: 1st. The work must not be new. 2d. It must be only an ordinary repair.

ON

N the 18th day of May, 1871, the common council of the city of Troy, by resolution, directed the city engineer to establish the grade of Oakwood avenue, from VOL. LX.

27

Brenn. City of Troy.

the Hoosick road northerly to the water works gate. And also directed the proper authorities to advertise for proposals for grading said avenue, when the grade should be established by the engineer. This resolution was approved by the mayor, but the expense was limited to a sum not exceeding $2500. The city engineer established the grade, which required an excavation upon a portion of the avenue varying from a few inches to four and a half feet, and upon another portion thereof required a filling varying from a few inches to about four feet. There was an advertisement soliciting proposals to execute the work, and some bids had been received, but no contract had yet been awarded. It was contemplated by the city authorities to let the contract for executing the work, to the lowest responsible bidder, and to raise the money necessary to defray the expense of said work, by a tax upon all the property liable to taxation, within the city. For the purposes of a highway, the proposed grade was preferable to the present grade.

J. P. Albertson, for the plaintiff.

R. A. Parmenter, for the defendant.

INGALLS, J. Substantially but one question has been discussed by counsel upon this motion, which is, whether the money necessary to defray the expense of said work is, by the charter of said city, required to be raised by tax upon all the taxable property within the city, or upon the property to be directly benefited by such improvement.

This presents for determinatin a simple question of power to tax, which must be derived from the charter, and laws not inconsistent therewith. And all considerations of expediency or equality of taxation must be rejected as belonging to the legislature and not to the judiciary. It is the duty of the court to fairly construe and enforce the