their face (People v. Sutherland, 207 N. Y. 22, | sides. If the bill had been itemized, the aud28, 100 N. E. 440), but the people, or the plain-it of any illegal charges would have been no tiff in their right, may, notwithstanding the protection. People v. Sutherland, supra; audit, recover back "charges illegal upon Wadsworth v. Board of Supervisors, Livingtheir face or charges clearly prohibited by law" (People v. Sutherland, 207 N. Y. 22, 27, 100 N. E. 440). Fraud practiced by defendant upon the board of supervisors, in the sense of a willful misstatement and the presentation of a false and excessive voucher, with intent to cheat and deceive, cannot be said to exist (Nichols v. Pinner, 18 N. Y. 295, 299), nor can it be said that the board of supervisors intended to cheat the county. But neither can it be said conclusively that there was a mere mistake in counting the lines, in deciding a mere question of fact, such as was held to preclude the court from reviewing the printer's bill in People ex rel. Smith v. Clarke, 174 N. Y. 259, 66 N. E. 819. The difference is not in the counting of the lines, but in respect to what a line is. The question of the legality of these charges had been before the court in Pearsall v. Brower, 120 App. Div. 584, 105 N. Y. Supp. 207, and it had been held legal to charge for the extension of each tax as the extension of a separate line, on the theory that each tax might have been set out on a separate line. Thus each line was constructively divided into several lines. Out of this decision had grown the theory that the number of actual lines necessarily on the assessment roll could be enlarged, so as to include many times the number of rows of figures forming the roll. Both the board of supervisors and the trial court accepted the ruling in the Pearsall Case. The plaintiff has not appealed, the law had been amended to conform to the construction claimed for it, excepting, however, Suffolk county, where special provision is made (County Law, § 23, subds. 11, 13 [as added by Laws 1917, c. 527]), and with the question there presented we have not at present directly to do. But we can readily understand how such a decision might give rise to sincere speculation as to the legal meaning of "a line copied" or "a line extended" and to a generous broadening of the liberal rule made by the court. While we may not take judicial notice of the fact that the supervisors knew that the general item included the several items into which it has now been broken, to hear that these questions had not been a topic of discussion among the members of the board would strain our credulity. [2] The board had no jurisdiction knowingly to allow charges clearly prohibited by law, even though they were not illegal upon their face. To hold the contrary would be to open a wide avenue of escape from official responsibility. If the claimant knew and the board knew the truth as to the nature of such charges, no jurisdiction to audit them existed, and the presentation of the claim and the audit would be a breach of legal duty, although good faith existed on both ston County, 217 N. Y. 484, 112 N. E. 161. The fact that the bill was not itemized is relevant, but not controlling, on the question of jurisdiction. The board had jurisdiction to make an honest mistake in counting lines, which would be final. It had no jurisdiction finally to determine, as a question of law, whether or not the law allowed a stated fee for a stated service. If it actually made such a determination, it was without jurisdiction if its determination was erroneous. People ex rel. Smith v. Clarke, supra. To decide this case as dependent upon mistake, which precludes judicial review, or fraud, which permits it, seems to ignore facts as they may have appeared to one on the ground when the audit was made. The number of lines charged for, something like a million in each year, suggests the explanation. A board of supervisors is a body of men consisting of supervisors. They audit their own claims. The fair inference is that in a matter like this they know something about the parts that go to make up the whole of a lump charge. If they are acting in good faith, under legal advice and judicial decision, we may absolve them of fraud in its ordinary, if not in its broadest, sense; but that does not confer jurisdiction impregnable against collateral attack. If the charge had been for 600 days' work in the year 1910, the implication of constructive days charged for would have been clear. It is almost as clear here that constructive lines were charged for, and that no one was deceived by the generality of the charges. [3] The determination of a question of fact, not passed upon by the trial court, is essential to uphold a recovery by the plaintiffs. The trial court, as we have seen, found for the defendant on the question of fraud and collusion in the presentation and audits of the claim, but made no finding to sustain the judgment against him. It found merely that a certain number of the lines charged for were illegal charges. That was nothing more than a reaudit as consistent with an original audit based on error as with an illegal audit. The case should be disposed of as it now stands on the question whether the charge, though legal on its face, was made and approved with knowledge that it embraced items which we hold to be illegal. It matters little whether such an audit is branded as fraudulent or as without jurisdiction. It is illegal with either brand. If the board was deceived, there should have been a finding of fraud; if it was not deceived, the fact of knowledge should have been found. The illegal portions of the claim, so far as this appeal presents them, include the lines representing the recapitulations, the footings and the totals. The headings of the pages were probably "lines no fraud or collusion. Misrepresentation, copied," although, strictly speaking, they though innocent, there was. The defendant were no part of the assessment roll. [4] As a new trial must be had, it may be suggested that a line in a tax roll means the same as a line elsewhere. It is a straight row of words and figures between the margins of the page, as we say "thirty lines to the page." When one is paid by the line, one ought not to put in a single line what might with propriety be put in two or more lines, and then complain because some one insists on counting the lines as they were written. Unnecessary additions to the assessment roll, such as totals of columns, recapitulations, and total of items, are not parts of it. Parts of lines and superfluous lines may not be lawfully charged for as such. The judgment should be reversed, and a new trial granted, with costs to abide the event. CARDOZO, J. (dissenting). I am unable to concur in the reversal of this judgment. The defendant by a false voucher, supported by a false affidavit, procured the audit and allowance of his claim. His only excuse is that he did not wish to deceive, but misunderstood the law. We are about to hold that the excuse is a good one; that there is no way to get the money back if the supervisors were misled; that concealment of the truth has conferred a jurisdiction which disclosure would have destroyed; and that a claimant whose misrepresentation has induced an audit, may invoke it as a bar. Only some overmastering principle or precedent could justify that conclusion. I do not think they can be found. misstated the number of lines copied and extended. He has been acquitted of willful wrong. He misconceived his rights. He attempted in good faith to apply a ruling of a high court which seemed, not without show of reason, to justify his count. His purpose was innocent, but his affidavit was false. That is a fair construction of the findings when we read them as a whole. What controls is the defendant's conduct, and not the epithets attached to. it. Coleman v. Burr, 93 N. Y. 17, 31, 45 Am. Rep. 160. I think that misrepresentation, whether willful or unwitting vitiates the audit. A claimant cannot procure through false statements the allowance of his claim, and then interpose the allowance as a bar to restitution. There may not have been that reckless indifference to error, or that pretense of exact knowledge, which will sustain an action for deceit. Hadcock v. Osmer, 153 N. Y. 604, 47 N. E. 923; Kountze v. Kennedy, 147 N. Y. 124, 41 N. E. 414, 29 L. R. A. 360, 49 Am. St. Rep. 651. But imposition of less degree has many of the consequences of fraud, and in equity at least is often loosely spoken of as fraud. Hammond v. Pennock, 61 N. Y. 145, 152; Nocton v. Ashburton, 1914 A. C. 932, 954. There is a distinction between the wrong that justifies rescission and the wrong that leads to an award of damages. Hammond v. Pennock, supra; Carr v. Nat. B. & L. Co. of Watertown, 167 N. Y. 375, 379, 60 N. E. 649, 82 Am. St. Rep. 725. Innocent misrepresentations, if they induce a contract, are ground for setting it aside. Bloomquist v. Farson, 222 N. Y. 375, 118 N. E. 855; CanThe cases say that, to nullify an audit in adian Agency, Ltd., v. Assets Realization Co., an independent action at the instance either 165 App. Div. 96, 102, 150 N. Y. Supp. 758, of the people or of a taxpayer, there must collating all the cases. I think a like efbe something more than error. There must fect follows when they induce the audit and be fraud or lack of jurisdiction. Osterhoudt allowance of a claim upon the public treasv. Rigney, 98 N. Y. 222; People v. Suther-sury. At least that must be so when disland, 207 N. Y. 22, 100 N. E. 440. But the closure of the truth would prove the claim fraud which will be sufficient for that pur- illegal and take from the auditing body jupose has never been defined; there has been risdiction to allow it. no occasion to distinguish between willful and innocent misstatements. General rulings abound that when fraud is shown, the audit falls. People v. Wood, 121 N. Y. 522, 529, 24 N. E. 952; Nelson v. Mayor, etc., of N. Y., 131 N. Y. 4, 29 N. E. 814. The presentation of false and excessive vouchers has been spoken of as equivalent to fraud. People v. Wood, supra; Hicks v. Eggleston, 105 App. Div. 73, 93 N. Y. Supp. 909. The audit has been declared void, though the auditing officer was innocent, and the claimant alone guilty. Hicks v. Eggleston, supra. But beyond that there has been neither attempt nor occasion to define the limits of relief. Courts do not weary of cautioning counsel to distinguish dictum from decision. They must heed their own warnings. People ex rel. Smith v. Clarke, 174 N. Y. 259, 66 N. E. 819, holds nothing to the contrary. In that case there was evidence that the board of supervisors had erred; there was no evidence that misstatements of the claimant had brought about the error. A different situation is before us here. There is here no attempt to convict the board of error. The claimant's affidavits were sufficient on their face. They did not show the method of computation; they gave the totals, and nothing else. The members of the board were under no duty to count for themselves a million lines or more. They might lawfully accept the affidavit of one who had made the count (County Law, § 24), just as a court in determining a like question might accept the testimony of a witness. The rec In this case the findings say that there was ord makes it certain that this is what they 169-CONSTRUCTION-Sur BOUNDING CIRCUMSTANCES. When the language used in a contract is susceptible of more than one interpretation, the courts will look at the surrounding circumstancthe situation of the parties, and the subjectes existing when the contract was entered into, matter of the instrument. 3. CONTRACTS did. I agree that disclosure of the truth | pretation being favored which makes every part would have destroyed their jurisdiction. of the contract effective. 2. CONTRACTS People v. Sutherland, supra; Bd. of Supervisors, Richmond Co., v. Ellis, 59 N. Y. 620; Lyddy v. L. I. City, 104 N. Y. 218, 10 N. E. 155; People v. Journal Co., 213 N. Y. 1, 106 N. E. 759; Wadsworth v. Bd. of Supervisors, Livingston County, 217 N. Y. 484, 112 N. E. 161. But there is no need of another trial. The defendant is in this dilemma: Either the board had knowledge, or it had not. If it had knowledge, allowance was beyond its power. If it had no knowledge, it was misled. The award would have been voidable if the truth had been disclosed. The remedy cannot be cut off by filing a false statement through which disclosure is avoided. I dissent from the ruling that a misrepresentation, which misleads, confirms and sanctifies an audit. I am unwilling to believe that there is then no power in the courts to extricate the county from the tangle in which the claimant has involved it by a false affidavit. While the broad statutes authorizing suits by taxpayers (General Municipal Law, § 51) and by the people (Code Civ. Proc. § 1969) remain upon the books, I cannot vote to commit our law to so impotent a conclusion. The scope of the taxpayer's action has steadily expanded. Altschul v. Ludwig, 216 N. Y. 459, 111 N. E. 216. This case is fairly within its purpose. We must not limit the just effectiveness of the remedy by any narrow construction. The defendant may have been innocent when he induced the board to act. He is not innocent to-day when he takes advantage of his own wrong and clings to payments won through his sup SONABLENESS. 154-CONSTRUCTION-REA In seeking for the intent of the parties to a contract that a construction contended for would make the contract unreasonable may properly be considered. 4. HUSBAND AND WIFE 279(4)-CONTRACT McLaughlin, Chase, and Collin, JJ., dissent ing. Appeal from Supreme Court, Appellate F. Fleischman against Cornelius Furgueson, as executor of the will of Marion F. Fleisch man, deceased. A judgment for plaintiff was affirmed by the Appellate Division (174 pression of the truth. Redgrave v. Hurd, L. App. Div. 310, 160 N. Y. Supp. 387), and de R. 20 Ch. D. 1, 12, 13. Of such conduct we are now asked to say that, within the purview of these statutes, it is neither a waste of public funds nor a fraud on public rights. We have never said so yet. We should not say so now. The judgment should be modified, by deducting the payments made for copying the headings of the assessment rolls, which I think were proper charges, and, as modified, affirmed. HISCOCK, C. J., and COLLIN and CUD- fendant appeals. Reversed and rendered. Andrew F. Van Thun, Jr., of Brooklyn, for appellant. Thomas A. McKennell, of New York City, for respondent. CRANE, J. The trial court was of the opinion that by the agreement made between the plaintiff and his wife, Marion F. Fleischman, both parties had contracted not to make wills, but to die intestate for the benefit of each other. This conclusion having been unanimously affirmed by the Appellate Division, we are bound by the facts as set forth in the findings, but as these contain the contract in full, the question of its interpretation is open for our consideration. In other words, we are to say whether or not the findings as made sustain the judgment for the plaintiff. The agreement was in writing, dated November 21, 1910, and executed while the parties were living separate and apart. They had been separated since Jan147(3)-CONSTRUCTION-IN- uary 27th of that same year. As we differ In construing a contract, the whole instru- with the lower courts in the interpretation ment must be considered and conclusion reached of this instrument, it is here set forth in full as to the intention of the parties; that inter- as follows: (223 N. Y. 235) FLEISCHMAN v. FURGUESON. (Court of Appeals of New York. April 2, 1918.) 1. CONTRACTS TENT. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes "1. The party of the first part hereby agrees no agreement had existed and the parties to pay to the party of the second part the week- hereto lived together." That is, paragraph 7 iy sum of eight dollars for her support and maintenance. was made to read as follows: "2. The party of the second part hereby agrees to accept the said weekly sum of eight dollars in full payment and discharge of all liability on the part of the party of the first part to support and maintain her. 3. The party of the second part agrees that she will not reside in the state of Pennsylvania and will not in any way annoy,. interfere with or attempt to communicate with the party of the first part. "4. Each party hereto may reside where they please, except that the party of the second part shall not reside in Pennsylvania. "5. Nothing herein contained shall be taken or considered as a waiver of any right either party hereto may have to institute proceedings for divorce against each other. "6. Should the party of the second part violate the terms of this agreement then the party of the first part shall not be obliged to pay the weekly sum of eight dollars, but should the party of the first part fail to regularly provide the sum of eight dollars in accordance with the terms of this agreement, then this agree ment shall be null and void and the party of the second part shall be privileged to return at once to the city of Philadelphia or such place in Pennsylvania as she may desire and commence such proceedings for her proper maintenance and support as she may desire. 7. In the event of the death of the party of first part the weekly payment of eight dollars shall cease and determine and the party of the second part shall receive such interest in the estate of the party of the first part as provided by the intestate laws of the commonwealth of Pennsylvania as though there had not been an agreement and in the event of the death of the party of the second part, said payment shall cease and the party of the first part shall have such interest in the estate of the party of the second part as provided for in intestacy under the laws of the state of New York as if no agreement had existed and the parties hereto lived together, except the same be absolved by proceedings in divorce." "In the event of the death of the party of the first part the weekly payment of eight dollars shall cease and determine, and the party of the second part shall receive such interest provided by the intestate laws of the commonin the estate of the party of the first part as wealth of Pennsylvania; and in the event of the death of the party of the second part, said payment shall cease and the party of the first the party of the second part as provided for in part shall have such interest in the estate of intestacy under the laws of the state of New York." It was said that the omitted words were meaningless, added nothing to the agreement, and should be discarded. Koles v. [1] This conclusion violates a well-known rule of construction applicable to instruments of doubtful meaning. In construing a contract the whole instrument must be considered, and from such consideration a conclusion reached as to what the parties intended to do or sought to accomplish. Borough Park Co., 142 App. Div. 765, 769, 127 N. Y. Supp. 671. That interpretation is favored which will make every part of a contract effective. Hill v. Philo, 155 N. Y. Supp. 922; Id., 171 App. Div. 962, 160 N. Y. Supp. 1133; Buffalo East Side R. R. Co. v. Buffalo Street R. R. Co., 111 N. Y. 132, 139, 19 N. E. 63, 2 L. R. A. 284. [2] The words omitted must have carried some meaning to the minds of the contracting parties, for the same phrase in substance is twice inserted in the paragraph. When the language used is susceptible of more than one interpretation, the courts will look at the surrounding circumstances existing when the contract was entered into, the situation of Paragraph 7 is the part of the contract in the parties, and the subject-matter of the indispute. Marion F. Fleischman died in the state of New York on the 19th day of May, 1915, without descendants, leaving a last will and testament, wherein and whereby she be queathed to the plaintiff the sum of $5, and the balance of her personal estate amounting to upwards of $9,000 she bequeathed to other persons than her husband. The defendant, Cornelius Furgueson, was appointed ex ecutor. strument. Wilson v. Ford, 209 N. Y. 186, 196, 102 N. E. 614. What were the circumstances here as re vealed by the findings? The plaintiff lived in Philadelphia. The wife was to make her domicile in New York state. The husband was to pay her eight dollars a week, which of course would terminate at death. It was unnecessary to state that the payment would terminate at the death of either party, and yet this condition was contained in paraThe husband commenced this action graph 7, indicating that the instrument was against the executor to compel specific per- not prepared with legal precision and conformance of the above contract upon the ciseness. Evidently the parties were in doubt theory that his wife had agreed to die intesas to what effect, under the laws of Pennsyltate, and that, by the laws of the state of vania or the laws of the state of New York, New York, he was entitled in the absence of this agreement might have upon the right of a will to all of her personal property. As inheritance in case of intestacy, and out of stated, the courts below have sustained this an abundance of caution paragraph 7 was interpretation of the contract and directed inserted. As we interpret the language it the defendant to pay over all of the wife's means that neither party should be barred personalty, after deducting her debts, if any. by reason of this agreement from taking unIn arriving at this conclusion, they have der the statutes of the respective states in been obliged to eliminate from paragraph 7 case of intestacy. This meaning gives effect the words, "as if there had not been an to the clauses which the courts below have agreement," and the further clause, "as if eliminated. The caution manifested by these 119 N.E.-26 parties to meet contingencies is indicated by [tended for would make the contract unreasonthe unnecessary stipulation that the payment able may be properly taken into consideraof alimony should cease with death. tion. A court will endeavor to give the construction most equitable to both parties instead of the construction which will give one of them an unfair and unreasonable advantage over the other. Schoellkopf v. Coatsworth, 166 N. Y. 77, 84, 59 N. E. 710; Hel N. Y. Supp. 1057; Sanford v. Brown Bros. Co., 208 N. Y. 90, 96, 101 N. E. 797, 50 L. R. A. (N. S.) 778. We therefore read this agreement as above indicated; that is, that Mr. and Mrs. Fleischman contracted that their separation agreement should not affect their rights under the intestacy laws of either state in case one should die without leaving a will, but that they did not contract to die intestate. As applicable to events which have since taken place, the agreement was that the party of the first part "shall have such interest in the estate of the party of the second part as provided for by the intestacy laws of the state of New York as if no agreementler v. Kalisch, 141 App. Div. 205, 207, 125 had existed and the parties hereto lived together." The interest in the estate which the husband would have if there were no agreement and the parties lived together would, of course, be subject to his wife's right to make a will. The parties stipulated that their rights under the intestacy laws would be the same as if the contract which they were making had never been made. If this contract had not been made and the parties were living together, there would be no existing obligation binding either as to the disposition of his or her estate. And yet the courts below have read this instrument to create a contract when the parties themselves have distinctly stated that at death the rights should be as if no contract existed. It it quite apparent that Mr. and Mrs. Fleischman intended by the use of the words, "as if no agreement had existed and the parties hereto lived together," that the agreement which they were making was not to prejudice their rights in the case of intesta-which the parties by their agreement sought cy, but was not intended to bind them to intestacy. The judgment appealed from must, therefore, be reversed, and as no evidence can change the result upon another trial, the complaint must be dismissed, with costs in all the courts to appellant. MCLAUGHLIN, J. (dissenting). I am unable to concur that the judgment appealed from should be reversed. The construction which is put upon the seventh subdivision of the contract in the prevailing opinion is, as it seems to me, not justified by the language used and results in doing the very thing to avoid. When the contract was prepared each of the parties was represented by counsel. The counsel for the husband prepared in the first instance an agreement, the sev "7. The death of the party of the first part shall absolve him and his estate from further payments of said weekly sum of eight dollars, and likewise the party of the first part shall be absolved in the event of the divorce of the parties." This provision was not satisfactory to the counsel for the wife, and under his advice she refused to execute the agreement unless such clause were changed. He then prepared and sent to the counsel for the husband the agreement which finally was executed, the seventh clause of which reads: It is quite natural to suppose that when parties have separated and agree to live in a state of separation their relations and feel-enth subdivision of which read: ings toward each other have been somewhat strained. The wife had about $10,000. What the husband has we do not know. He agreed to the separation, and from the fact that he assumed the responsibility for his wife's support, it may be inferred that he had no legal grounds for evading it. The findings state that by the laws of New York the husband, on intestacy, would receive all of his wife's personalty, and that by the laws of Pennsylvania the wife, in the event of her husband's death before her own, would receive one-half of his personal estate. Thus "7. In the event of the death of the party we find the parties under strained relation- of the first part the weekly payment of eight ships agreeing, if the construction hereto- dollars shall cease and determine and the par; ty of the second part shall receive such interfore given be adopted, to enjoy benefits and est in the estate of the party of the first part privileges which they would not have had if as provided by the intestate laws of the comthey had lived happily together. In a state monwealth of Pennsylvania as though there had not been an agreement and in the event of the of separation, the wife agrees that her hus-death of the party of the second part, said payband shall have all her personalty, and he ment shall cease and the party of the first part agrees that she shall have one-half of his, shall have such interest in the estate of the parand that neither shall make a will contrary ty of the second part as provided for in intestacy under the laws of the state of New York to the agreement. If they had lived happily as if no agreement had existed and the parties together, either could have made a will dis- hereto lived together, except the same be abposing of all or part of his or her property solved by proceedings in divorce." to collaterals or strangers. This is a strange, unnatural, and unreasonable reading of the contract. [3, 4] It is a well-established canon of interpretation that in seeking for the intent of the parties the fact that a construction con It is clear to me why the change in the seventh subdivision was insisted upon by the counsel for the wife. Under the agreement as prepared by the counsel for the husband she was to have $8 per week. This allowance, of course, would terminate upon the |