Mather v. Mather, 38 App. Div. 32, 55 N. Y. Supp. 973, declared a rule that a statement of facts in a confession of judgment would be sufficient if it complied with the requirements of statement of facts in a complaint. The only criticism that can be made of the statement of facts in the confession, is that the nature and extent of the "value" or consideration for which the note was given, does not appear. The statement condemned in Chappel v. Chappel, 12 N. Y. 215, 64 Am. Dec. 496, where judgment was confessed upon promissory notes, made no reference whatever to a consideration for the notes. There was a similar defect in the confession of judgment condemned in Dunham v. Waterman, 17 N. Y. 9, 72 Am. Dec. 406. These early decisions have been distinguished. Acker v. Acker, 40 N. Y. (1 Keyes) 291. However, in Wood v. Mitchell, 117 N. Y. 439, 22 N. E. 1125, this question of law was again considered in the Court of Appeals, and a confession of judgment was condemned as defective, because, in the opinion of the court, it was not sufficiently definite to enable a junior creditor to investigate the facts or to sustain a prosecution for perjury for any false statements set forth therein. In Mather v. Mather, ut supra, this court considered the case of Wood v. Mitchell, ut supra, in the light of its own facts. If it be the true rule that the sufficiency of the confession of judgment is to be determined on the principle of the sufficiency of a complaint against the judgment debtor, and we feel bound by our former decision upon this point, then the order entered at Special Term was erroneous. The order should be reversed, with $10 costs and disbursements, and the motion denied, with $10 costs. JENKS, P. J., concurs. In re SUDBURY. WISE & WHITLOCK, Inc., v. SUDBURY. (Supreme Court, Appellate Division, First Department. January 14, 1916.) COURTS 485-CITY COURT-ACTION-REMOVAL TO SUPREME COURT. Actions within the jurisdiction of the City Court and pending therein, where no actions are pending in the Supreme Court involving the same causes of action, and not within Code Civ. Proc. §§ 319, 319a, authorizing the removal of actions from the City Court to the Supreme Court, are not removable. [Ed. Note. For other cases, see Courts, Cent. Dig. §§ 1292-1298; Dec. Dig. 485.] Appeal from City Court of New York. Actions by Wise & Whitlock, Incorporated, against Edward B. Sudbury. On motion by defendant to remove the actions pending in the City Court to the Supreme Court. Motion granted, and plaintiff in such actions appeals. Reversed, and motion denied. Argued before CLARKE, P. J., and McLAUGHLIN, LAUGHLIN, SCOTT, and PAGE, JJ. For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes Otto C. Sommerich, of New York City, for appellant. PER CURIAM. The City Court has jurisdiction of the actions brought, and which are now pending therein. No actions are now pending in the Supreme Court involving the same causes of action. The only provisions in the Code of Civil Procedure authorizing the removal of actions from the City Court are contained in sections 319 and 319a. None of these provisions apply to the case at bar. Under such circumstances, there is no authority for the order appealed from, and it must be reversed, with $10 costs and disbursements, and the motion denied, with $10 costs. Order filed. NIAGARA & ERIE POWER CO. v. PUBLIC SERVICE COMMISSION, SECOND DIST. (Supreme Court, Appellate Division, Third Department. January 5, 1916.) 1. ELECTRICITY 9-ELECTRIC COMPANIES-CONDUCTORS-CONSENT OF PUBLIC AUTHORITIES. Transportation Corporations Law (Consol. Laws, c. 63) § 61, subd. 2, provides that a corporation may erect poles, lay conduits, maintain wires, etc., in the public streets and places of a town with the consent of the municipal authorities thereof. The plaintiff secured consent of the town board to construct its wires, poles, and conduits in the streets of the town. It then petitioned the Public Service Commission for permission to construct its plant in the town, which was denied on the ground that it had not obtained consent of the town superintendent of highways to construct its lines. Held, that the statutes contemplated securing consent from the town board, and that the action of the Commission was erroneous. [Ed. Note.-For other cases, see Electricity, Cent. Dig. § 4; Dec. Dig. 9.] 2. COURTS 92-OPINIONS-OBITER DICTUM. Although in deciding a case the court gives expression to obiter dictum, such expressions may be considered in a subsequent construction of the same statute. [Ed. Note. For other cases, see Courts, Cent. Dig. § 335; Dec. Dig. 92.] Appeal from Public Service Commission. Application by the Niagara & Erie Power Company to the Public Service Commission of the Second District, for permission to construct an electrical plant in the town of Portland, Chautauqua county. Submission of controversy under section 1279 of the Code of Civil Procedure. Appeal from an order denying the application. Order annulled, and the matter remitted. Argued before KELLOGG, P. J., and LYON, HOWARD, WOODWARD, and COCHRANE, JJ. Strebel, Corey, Tubbs & Beals, of Buffalo (Warren Tubbs, of Buffalo, of counsel), for plaintiff. Ledyard P. Hale, of Albany, for defendant. For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes HOWARD, J. [1, 2] The Niagara & Erie Power Company is a domestic corporation organized under the Transportation Corporation Law, and, among other things, is engaged in generating and transmitting electricity. This corporation made application to the town board of Portland, Chautauqua county, for permission to construct and maintain a line of wires on poles or in conduits through the streets and public places of the town. This permission was granted. The company then petitioned the Public Service Commission for permission to construct its plant in the town. This was denied upon the sole ground that the company had not obtained the consent of the town superintendent of highways. Subdivision 2 of section 61 of the Transportation Corporations Law provides that a corporation like this one may erect poles, lay conduits, maintain wires, etc., in the public streets and places of a town with the consent of the "municipal authorities" thereof; so that the question before us is, Who are the "municipal authorities" of a town within the meaning of this expression? What official or officials did the Legislature have in mind? It seems almost idle to reason about it, for the result of any course of reasoning is little better than a guess. The truth is, very likely, that the Legislature did not have any particular official or body in mind. It is simply one of those careless, indefinite expressions which so frequently creep into statutes. But it is not so important in this case to discover the legislative intent as to avoid a conflict of authority when applications like the one before us is made. It is desirable that the responsibility of granting or refusing applications for franchises of this nature in towns be definitely fixed and placed upon some specific body or official. This question has never been directly passed upon by the courts, so far as we can discover, although there have been several obiter expressions pro and con. The latest, highest, and most authoritative expression is found in Farnsworth v. Boro Oil & Gas Co., 216 N. Y. 40, 109 N. E. 860. An examination of that case shows clearly that the Court of Appeals considered that the town board is the "municipal authorities" intended by the statute. We quote from the opinion: "Such corporations are required to obtain the consent of the municipal authorities' of the city, village or town in which their pipes are to be laid. Transportation Corporations Law, § 61. The plaintiff argues, and the defendant seems to concede, that the 'municipal authorities' of a town are the members of the town board. The statutes and the decisions sustain the conces sion (citing cases). A corporation organized under the Transportation Corporations Law to manufacture and supply gas is not restricted, however, to the sale of manufactured gas. It may deal in natural gas also. Laws 1902, c 596; Laws 1909, c. 219 [Consol. Laws, c. 63] § 61. We have thus a singular situation. Corporations dealing in natural gas, but organized under the Transportation Corporations Law, are told to seek the consent of the municipal authorities; i. e., the town board. Corporations dealing in natural gas, but organized under the Business Corporations Law [Consol. Laws, c. 4], are told to seek the consent of the commissioner of highways, now the town superintendent. Highway Law (Laws 1909, c. 30; Consol. Laws, c. 25) § 43." In addition to this quotation, all through the opinion are expressions which indicate that it is the town board, not the commissioner of highways, which, as the Court of Appeals believes, constitutes the "munici pal authorities" within the meaning of the statute. In view of this opinion, no matter if it be obiter as to this subject, we feel that our decision should follow it; and therefore we hold that the Niagara & Erie Power Company, having procured the consent of the town board, did procure the consent of the proper "municipal authorities," and that the Public Service Commission improperly denied its application. The order of the Public Service Commission should be annulled, and the matter remitted to the Commission for further action. All concur. KYNER v. BOLTON. (Supreme Court, Appellate Division, Third Department. January 5, 1916.) 1. APPEAL AND ERROR 220-FINDINGS OF REFEREE. Where the defendant, for the first time on appeal from a decision of the referee, attempts to present the defense that plaintiff's claim was invalid under the statute of frauds, it cannot be considered, since the court in that case sits as a court of review only, to correct errors of the referee. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 13251332; Dec. Dig. 220.] 2. FRAUDS, STATUTE OF 139-AGREEMENTS WITHIN THE STATUTE-EXECUTED CONTRACT. Where an oral agreement of a decedent to give plaintiff certain cash and certain notes for her interest in property, which they held by tenancy in common, decedent to bid in the property at a partition sale, and plaintiff to refrain from bidding on the sale, all of which was done, the action of the plaintiff on the notes against the estate of the decedent could not be defeated by a plea of the statute of frauds, the contract being fully executed. [Ed. Note. For other cases, see Frauds, Statute of, Cent. Dig. §§ 334341; Dec. Dig. 3. BILLS AND NOTES 139.] 92-CONSIDERATION EVIDENCE. That plaintiff owned one-half interest in a farm; that she agreed not to bid at a partition sale on the whole farm, but to sell her share to the decedent for certain cash and certain notes, is sufficient to show a consideration for the giving of the notes. [Ed. Note. For other cases, see Bills and Notes, Cent. Dig. §§ 166–173, 175-205, 208-212; Dec. Dig. 92.] 4. BILLS AND NOTES 516-ACTIONS-EVIDENCE-SUFFICIENCY. In action on promissory notes, where the evidence showed that plaintiff agreed to refrain from bidding at a partition sale of a farm, one-half interest of which was hers, and decedent agreed to pay her certain money and notes therefor, and that the signature on the notes was genuine, is sufficient, absent fraud, upon which to base a recovery by the plaintiff. [Ed. Note.-For other cases, see Bills and Notes, Cent. Dig. §§ 18001806; Dec. Dig. 516.] Appeal from Judgment on Report of Referee. Action by Hettie Parker Kyner against Emmett Bolton, as administrator with the will annexed of the estate of Olive Wright, deceased. From the decision of the referee appointed with consent of the par For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes 156 N.Y.S.-56 ties and approval of the surrogate, disallowing plaintiff's claim, plaintiff appeals. Reversed, and new trial granted. Argued before KELLOGG, P. J., and LYON, HOWARD, WOODWARD, and COCHRANE, JJ. Harry J. Mosher, of New Berlin, for appellant. HOWARD, J. Prior to April 7, 1899, the plaintiff and Olive Wright were tenants in common of certain lands in Otsego county. Olive Wright had brought suit for the partition of the property, and the sale was to take place on the above date. A few days prior to the day of sale, Olive Wright and the plaintiff, who was her aunt, had a conversation concerning the property, wherein it was agreed that Olive Wright was to give the plaintiff $5,500 for her one-half interest in the farm, $2,500 in cash and $3,000 in notes, and that Olive Wright was to bid off the farm. The sale took place, and the property was struck off to Olive Wright. On the morning of April 24, 1899, Olive Wright signed the two notes, one for $1,000 and one for $2,000 (the notes in question), and delivered them to the plaintiff. Afterwards, and on the same day, she received the referee's deed of the premises. Olive Wright died April 15, 1905, without having paid the notes. Subsequently the plaintiff gave notice to the executor that she held the notes, and demanded payment. She filed the ordinary claim for the indebtedness against the estate, but the same was rejected, and the matter was referred to a referee and became an action in the Supreme Court. The referee disallowed the claim, and a judgment for costs has been rendered against the plaintiff. [1, 2] On this appeal an attempt is being made by the defendant, for the first time, to present the defense that the contract between the two women was contrary to the statute of frauds and therefore void. This question was not thought of or litigated before the referee, and cannot therefore be considered here. This tribunal sits, not as a court of original jurisdiction, but as a court of review. It is not within the purview of our jurisdiction to consider issues in the first instance; we sit only to correct errors in the courts below. This has been repeatedly held. Marion v. Coon Constructing Co., 157 App. Div. 95, 141 N. Y. Supp. 647; Hammond v. Union Bag & Paper Co., 136 App. Div. 100, 120 N. Y. Supp. 652; Mulligan v. McDonald, 135 App. Div. 536, 120 N. Y. Supp. 522; Matthews v. Matthews, 154 N. Y. 288, 48 N. E. 531; Goldman v. Cohen, 167 App. Div. 666, 153 N. Y. Supp. 41. However, inasmuch as we are about to order a new trial, we are disposed to express ourselves on this subject for the guidance of the parties, in case the question presents itself again. And in this connection it is only necessary to say that if there was an agreement that the decedent was to give the plaintiff $2,500 in cash and $3,000 in notes for her interest in the property, and that the decedent was thereupon to bid in the property, the agreement has been fully carried out. The property was bid in by the claimant, the cash was paid, and the notes delivered, and it is immaterial whether the agreement before it was performed was capable of enforcement or |