sory note made by John, bearing date on the day George advanced the $5,000 for this purpose, and for that amount. The referee found that this note was given on account of that payment by George for the benefit of John and his coadventurer. We think the evidence fairly sustains that finding, and that there is no foundation for the appellant's claim that an indebtedness of $5,000 on account of the advance of that amount for the purpose stated should have been found in addition to the indebtedness evidenced by the note. [3] The referee also allowed two other items, one of $1,500 and one of $1,000, for payments made by George for John's account with respect to said Sierra Madre syndicate. The learned counsel for the respondent argues that those findings should be reversed on the ground that the evidence does not sustain them. We think this contention is well founded. There is no competent evidence that these payments were made by George. The evidence relied upon is a letter from Tilghman, Rowland & Co. to George stating, so far as material, that "on April 9th we charged your a/c $1,500, and on April 13th you gave us your check for $1,000. Both these items went through Geo. H. Morgan 'B' a/a and was intended, we think, for the benefit of J. B. M."-and a receipt given by Tilghman, Rowland & Co. under date of April 13, 1897, to George, for a check of $1,000, reciting that it was "to be credited on account of John B. Morgan," supplemented by the testimony of the witness who gave the receipt, to the effect that he would not have given a receipt if he had not received the check. No checks showing either of these payments was produced, and no note therefor, as in the other instance, was produced, and no correspondence was shown between George and John with respect thereto. Findings Nos. 10 and 11 should therefore be reversed. [4] The learned referee allowed, as an item of indebtedness on the part of John to George, a draft for $400 drawn by John on December 10, 1897, at Paris, on George, to the order of John Munroe & Co. An employé of Munroe & Co., the Paris firm, testified that this draft was cashed for John by Munroe & Co. and forwarded to New York for collection, and there collected by John Munroe & Co., the New York firm. The draft was found with the effects of George. It appears that John owned securities and other property here which were intrusted to George, who at times had authority to sell or pledge certain securities of which he had charge for John. There is in these circumstances no evidence in favor of the appellant to take the payment of this draft out of the general rule that, in the absence of other evidence, a loan is not to be presumed from the making of a check or the acceptance and payment of a draft, but that it is to be presumed in such case that the transaction constituted a payment on account of an existing indebtedness by the maker of the check or the acceptor of the draft. Leask v. Hoagland, 205 N. Y. 171, 98 N. E. 395, Ann. Cas. 1913D, 1199; Matter of Carrington, 163 App. Div. 544, 148 N. Y. Supp. 952; Griffin v. Train, 90 App. Div. 16, 85 N. Y. Supp. 686; Mills v. McMullen, 4 App. Div. 27, 38 N. Y. Supp. 705; Matter of Baldwin, 11 App. Div. 551, 42 N. Y. Supp. 642; Sayles v. Olmstead, 66 Barb. 590. It is true that slight evidence is sufficient to render this presumption of law inapplicable, but in order to warrant a recovery, or an offset, there must be some evidence to show that the check or draft was not given in payment of an antecedent indebtedness or as a gift, but was intended as a loan. Poucher v. Scott, 98 N. Y. 422; Stimson v. Vroman, 99 N. Y. 74, 81, 1 N. E. 147; Nay v. Curley, 113 N. Y. 575, 21 N. E. 698. These views lead to the reversal of the twelfth finding, and they sufficiently answer the contention made on behalf of the appellant with respect to three other drafts which were disallowed by the referee. We do not agree in all respects with the application of payments made by the learned referee in determining the balance owing from John to George, but the account would not be materially affected, and the result would not be changed, if we were to revise the decision, so that it would conform to our views in every respect, and we therefore deem it unnecessary so to do. It follows that the findings should be modified in conformity with the views herein expressed, and the judgment affirmed, with costs. Settle order on notice. All concur. (170 App. Div. 267) DAILEY et al. v. CITY OF NEW YORK et al. (Supreme Court, Appellate Division, First Department. December 10, 1915.) 1. MUNICIPAL CORPORATIONS 673-CONTRACTS-DUMPING. Where plaintiffs had contracted in 1908 for the disposal of city street rubbish, which contract permitted sea dumping only at the direction of the commissioner of street cleaning, and the contract which plaintiffs made with the city in 1913 for the same work provided that it should at all times be subject to the commissioner's supervision, inspection, and approval, that his interpretation of the contract should be final in case of doubt, ambiguity, or obscurity as to its meaning, and that he might give all directions and explanations required to make the provisions of the contract clear and effective, making no mention of sea dumping, such contract of 1913 authorized plaintiffs to dump at sea at will, and the commissioner's action in attempting to prevent them from so doing, by notification or order not to do so, was unsanctioned by the contract. [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. § 1454; Dec. Dig. 673.] 2. INJUNCTION 11-RESTRAINING BREACH OF CONTRACT-ILLEGAL OFFICIAL ACTION-CONDITIONS PRECEDENT. Where the commissioner of street cleaning of defendant city, being unauthorized by the city's contract with plaintiffs, contractors for the removal of street rubbish, to prohibit sea dumping, directed the superintendent of final disposition to prevent sea dumping, plaintiffs' action to enjoin the violation of the city's contract with them was not prematurely brought because the superintendent of final disposition had not threatened to effectuate the commissioner's direction, which it was his duty to obey, since, where a public officer has been commanded to do an illegal act by a superior, the fact that he has not threatened to do it is no bar to the maintenance of an action to restrain its commission. [Ed. Note.-For other cases, see Injunction, Dec. Dig. ~11.] 3. INJUNCTION 59-BREACH OF CONTRACT-REMEDY AT LAW. Where plaintiffs, contractors for the disposition of street rubbish, had given bond for $200,000 to secure performance of their contract, and deFor other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes posited $40,000 in cash, which was to be returned to them, part upon partial and part upon complete performance, the city also deducting 10 per cent. from each month's payment, to be retained until the end of the year, the contract in addition imposing severe penalties for delay or default in performance, when the commissioner of street cleaning directed that no more sea dumping be permitted, which, under their contract, the plaintiffs had the right to do, they were entitled to equitable relief to restrain such illegal prevention of the means of disposing of the rubbish, since any refusal on plaintiffs' part to comply with the direction would have subjected them to expensive litigation and an action at law for the recovery of damages difficult to estimate, while the remedy at law, to exclude equitable relief, must be as plain, adequate, certain, prompt, complete, and efficient as the remedy in equity. [Ed. Note. Dec. Dig. 4. MUNICIPAL AGES. For other cases, see Injunction, Cent. Dig. §§ 114-116, 128; 59.] CORPORATIONS 673-DUMPING CONTRACT-BREACH-DAM Where defendant city broke its contract with plaintiff contractors for the removal of street rubbish, their measure of damages at law was the profit which they would have earned from the performance of the contract. [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. § 1454; Dec. Dig. 673.] Appeal from Special Term, New York County. Action by John D. Dailey and another against the City of New York and another. Judgment for plaintiffs, and defendants appeal. Affirmed. For opinion below, see 149 N. Y. Supp. 109. Argued before INGRAHAM, P. J., and McLAUGHLIN, LAUGHLIN, CLARKE, and SCOTT, JJ. E. Crosby Kindleberger, of New York City, for appellants. MCLAUGHLIN, J. This action was brought to obtain an injunction restraining the defendants from interfering with the plaintiffs' performance of a contract with the city of New York for the disposal of ashes, street sweepings, and rubbish in the boroughs.of Manhattan and the Bronx. In performing the contract the plaintiffs made use of so-called dumping scows when the rubbish was dumped at sea. On March 25, 1914, they were notified by the superintendent of final disposition, acting under orders from the commissioner of the department of street cleaning, that on and after April 1, 1914, the city would not permit the plaintiffs to use sea dumpers. They thereupon brought this action to restrain the defendants, during the term of the contract, from refusing to deliver the ashes, street sweepings, and rubbish to the plaintiffs upon these dumpers. From a judgment granting such relief, the defendants appeal. [1] The contract in question was entered into on the 12th of August, 1913, and provided for the final disposition of what may, for brevity, be called "street rubbish," for a period of three years, commencing January 2, 1914, and at the expiration of that time with the right to the city to renew for an additional two years upon the same terms. For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes The street rubbish was to be delivered at certain specified piers on the water front in the borough of Manhattan, where it was dumped from carts upon scows operated by the contractors. The contract provided that the contractors should have the privilege of picking over the street rubbish gathered in the borough of the Bronx and reclaiming the valuable materials found therein, on paying therefor $12,000 per year, such amount to be paid to the city by its deducting $1,000 per month from the amount otherwise to be paid to the contractors, and that "this privilege in the borough of Manhattan is reserved by the city to be let to another contractor, who will perform the work of trimming the scows, and who shall have at all times free access to the scows while loading operations are being carried on." On the same day the city entered into another contract, subsequently assigned to the Clarke Contracting Company, "for loading and trimming deck scows, dumpers, and other vessels used for the receipt and transportation" of the street rubbish at the water front dumps in the borough of Manhattan for a similar period, in consideration of which the contractor was given the picking privilege and agreed to pay the city upwards of $1,400 a week during the life of the contract. The plaintiffs had been engaged in the disposal of the city's street rubbish since some time prior to 1881. It was generally used for land fills at various points near the city, and the contract under which the plaintiffs had been operating just previous to the one in question required not less than 50 per cent. nor more than 60 per cent. of the street rubbish to be deposited at Riker's Island, and provided that dumping at sea should be done only at the direction of the commissioner of street cleaning at special prices. Under the contract in question not less than 20 per cent. nor more than 30 per cent. was to be deposited at Riker's Island, and there was no clause in it which prohibited sea dumping, nor any other restriction as to the disposition of the street rubbish, except that the contractors had to comply with the laws of the state and the United States, with the Sanitary Code, and the ordinances and regulations of the board of health of the city. The amount of the street rubbish to be disposed of, as may easily be conceived, considering the population of the boroughs of Manhattan and the Bronx, was enormous and constantly increasing, and during the first three months of the contract under consideration plaintiffs dumped from one-fourth to one-third of the rubbish at sea. The dumpers used for this purpose were so constructed that the sides or bottom could be opened, allowing their contents to slide into the sea. They could thus be loaded or emptied more expeditiously and carry larger loads than the deck scows used for land fills. But in closing the sides and bottoms a certain amount of water remained in the dumpers, so that, when they were being loaded, a considerable quantity of the street rubbish was dumped into the water in the bottom of the dumpers and could not be picked over. On March 24, 1914, the defendant commissioner wrote the plaintiffs, stating that under the two contracts, which must be read together, the Clarke Contracting Company was entitled to have free access to the vessels used; that plaintiffs' contract did not permit the use of vessels not affording free access; that, under the contract, the use of sea dumpers could be limited to cases of emergency, and, while their use had been permitted, it must be understood that this was only because of the emergency due to the winter season. The letter also dealt with other subjects relating to the performance of the contract, unnecessary to be considered, since the same are not involved. Upon receipt of this letter plaintiffs at once protested vigorously against any attempt on the part of the city to interfere with their right to dump the street rubbish at sea, in the sea dumpers then used. But notwithstanding such protest, on the following day they received a notice, or order, to which reference has already been made, purporting to set forth regulations for the performance of the contract, and stating that the use of sea dumpers in the future would be permitted only in cases of emergency, upon the written consent of the department of street cleaning, and that "on and after April 1, 1914, the use of sea dumpers will not be permitted." That the city had no right to impose such regulation is, I think, clear beyond question. The contract provided that the work should, at all times, be accessible to the commissioner and subject to his supervision, inspection, and approval. He was empowered to direct the contractors to increase the efficiency or improve the character of the appliances, processes, devices, or methods used by them. It also provided that his interpretation of the contract should be final in case of doubt, ambiguity, or obscurity as to its meaning or wording, and that he might give all such directions and explanations as might be required to make the provisions of the contract clear and effective. But it is perfectly obvious that none of these provisions gave him any right to prohibit sea dumping or to forbid the use of sea dumpers. Under the terms of the contract the disposition of the street rubbish, other than the amount required to be deposited at Riker's Island, was left entirely to the contractors and the city was not concerned with it after it had been delivered to the contractors at the dumps or piers. The contract did not specify or attempt to limit the kind of vessels in which the street rubbish was to be taken away. They are variously referred to as "transporting conveyances," "vehicles," and "scows"; a considerable number of deck scows belonging to the city being placed at the disposal of the contractors. The use of dumping scows or sea dumpers was, and for a long time had been, the recognized method of doing the work, and the complaint against them is, not that they were inappropriate or inefficient, but rather that they were too efficient. The requirement that the picking contractor should "have free access to the scows while loading operations are being carried on" did not, of course, limit the right of the plaintiffs to use such type of vessel as they saw fit. Moreover, it appears that the picking contract referred specifically to "dumpers," as these sea dumpers were usually called. If the question of this construction of the contract were a doubtful one, all doubt is removed by a consideration of the circumstances surrounding its execution. The plaintiffs then had a contract with the |