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Kelly agt. Devlin.
pose; the name and place of residence of the person making the same; the names of all persons interested with him therein; and if no other person be interested it shall distinctly state the fact.
The ordinance further provides that the estimate should be verified by the oath, in writing, of the party making the same, that the several matters stated therein were, in all respects, true.
As required by the ordinance, Charles P. Devlin, when estimating for the work of paving the streets, swore that he alone was interested in the bids or proposals, and that if he obtained the contracts for the work no individual other than himself would have an interest in such contracts. He was the lowest bidder for the work and, pursuant to the requirements of the statute and ordinance of the city, the contracts were awarded to him.
The complaint is framed upon the idea that the partnership was a secret one and concealed from the department of the city authorized only to make these contracts under the provisions of law.
The agreement between the plaintiff and Charles P. Devlin, deceased, positively asserted that the deceased was to obtain contracts in his name only to be executed and performed by him and the plaintiff, or one of them, upon such terms and conditions in respect to each contract as should be mutually agreed upon. The contract was illegal.
The first step in the plaintiff's case was to prove that he was a secret partner and entitled to a share of this money. The obligation arises out of the contract of partnership itself. The ordinance prohibits secret partners, and the plaintiff, therefore, is not a partner. The object of the ordinance was to enable the department of public works to know with whom it contracted and, also, to see that certain officers of the city government should not become interested in procuring lucrative contracts for themselves and friends, and to prevent all secret combinations in relation to obtaining work. These
Kelly agt. Devlin.
contracts were to be given to the lowest bidder. The provision that every proposal for work shall contain the names of all persons who are interested, and prohibits any secret agreement or understanding that any person not named shall become interested in any contract that may be made, was intended to deprive the people of honest competition which public bidding is designed to secure.
Although, as a general proposition, the legislature of a state is alone competent to make laws, it is well settled that it is competent for the legislature to delegate to municipal corporations the power to make laws and ordinances, which, when authorized, have the force, as to persons bound thereby, of laws passed by the legislature itself. In the present case such authority was delegated by an act of the legislature to the defendant corporation, the mayor, aldermen and commonalty of the city of New York (Dillon on Municipal Corporations, sec. 245 and authorities cited ; The Brick Church agt. The Mayor, &c., 5 Cow., 541; McDermot agt. The Board of Police, 5 Abbott, 422). The rule has been applied to a statute of similar import passed by the legislature of this state (Laws of 1854, chapter 329) and has received the judicial sanction of the highest court. In the case of Woodworth agt. Bennett (43 N. Y., 273), it was held that a secret partnership made by four persons that they were to be equally interested in the contract for the work obtained by one of the four partners, that such partnership was illegal, being against public policy.
There is an admission in the complaint that one of the objects of invoking the aid of the court was “to have the partnership established," and the accounts taken; and a concession on the part of the plaintiff that he and the deceased could not in his lifetime agree upon the accounts. I am unable to find any evidence of any agreement between the parties fixing the terms and conditions between them upon which any of the contracts or orders obtained by Charles P. Devlin were to be executed by them or by one or the other. It is true there was an accounting at Barry's office in April,
Phinney and others agt. Broschell and others.
1877, in which it appears to have been agreed that there was due to the plaintiff $2,500, and that Mr. Devlin would give that sum in settlement. But the accounts as produced, utterly failed to show a partnership between the parties. The witness Barry did testify that there was an account stated and the amount agreed upon was $2,500, but he distinctly states that the accounts produced (which were for the pupose of proving a partnership) were wholly unintelligible to himself and the parties present incapable of explaining them further than agreeing that a sum was due to the plaintiff, and the deceased, Mr. Devlin, agreeing to pay the plaintiff the amount in settlement.
An account stated, the amount agreed upon, and a promise to pay, furnish good grounds for an action at law, but no basis for a bill in equity instituted for the purpose of establishing a partnership and for an accounting.
The defendants are entitled to judgment.
COURT OF APPEALS.
EDMUND PAINNEY and others agt. EDMUND BROSCHELL and
Order for publication of summons must be made by a judge out of court
Caption of an order not controlling as to its character - when an order entitled at special term may be shown to have been made out of court.
Where a warrant of attachment having been granted against the property
of the defendants as non-residents, an order was obtained for the service of the summons by publication which was entitled, “At special term of the supreme court of the state of New York, held at chambers. Present, hon. ABRAHAM R. LAWRENCE, justice;” it recited: “The plaintiffs having presented to me the verified complaint in this action, and having also made proof to my satisfaction that said defendants are not residents of this state;” it was signed “Enter. A. R. L., J. S. C.” It did not appear that the order had ever in fact been entered as a court order, but it was shown that the order was in fact made and signed out of court, in the judge's private room:
Phinney and others agt. Broschell and others.
Held, that it was good as a chambers order of the judge, and a service
of the summons by publication in pursuance thereof was effectual
(Affirming S. C., 19 Hun, 116). The caption of the order and the direction to enter are not conclusive as
to its character, but the court will look at the facts as proved by the papers to exist to determine its character. April, 1880.
A WARRANT of attachment having been granted against the property of the defendants as non-residents, an order was obtained for the service of the summons by publication. The order was entitled, “At a special term of the supreme court of the state of New York, held at chambers. Present: hon. ABRAHAM R. LAWRENCE, justice.” It recited: “The plaintiffs having presented to me the verified complaint in this action,
and having also made proof to my satisfaction that said defendants are not residents of this state.” It was signed “Enter. A. R. L.. J. S. C.” It did
that the order had ever in fact been entered as a court order.
The defendants, appearing for the motion only, moved to vacate the attachment on the ground that the order for publication was made by the court and not by a judge (Code Civil Proc., sec. 440), and relied on the case of Hershon agt. Knickerbocker Life Insurance Company (Albany Law Journal, June 7, 1879).
The plaintiffs showed, in opposition to the motion, that the order was in fact made and signed out of court, in the judge's private room.
The motion to vacate was granted at special term. The plaintiffs appealed to the general term, where the order of the special term was reversed, and the motion denied (19 Hun, 116). The defendants thereupon appealed to the court of appeals.
E. R. Olcott and J. F. Mosher, for plaintiffs.
Coudert Brothers and Edward Patterson, for defendants.
Mojarietta et al. agt. Saenz et al.
RAPALLO, J. — The appellants claim that the order of publication in this case was not made by a judge, but by the court at special term, and was, therefore, void. This is the only point in the case. It appears that the order was, in fact, made by judge LAWRENCE, out of court, in his private chambers. His name appears in the caption, and in the body of the order it purports to be made by a judge. It recites, “the plaintiffs having presented to me,” &c., and “having proved to my satisfaction,” &c., ordered, &c. It is signed by the judge with his initials, and his official title is abbreviated. The appellant relies on the fact that it has a caption, “At a Special Term held at Chambers," and that there is a direction to enter; but it does not appear to have been in fact entered as a court order. The general term held that it was good as a chambers order of the judge. The question is purely one of form, and we are not inclined to differ with the court below on such a technical point of practice.
Order affirmed, with costs.
COURT OF APPEALS.
AGUSTIN H. MOJARIETTA et al. agt. Thomas SAENZ et al.
Order for publication of summons - must be made by a judge out of court –
not void by reason of caption and direction to enter — may be amended.
Where an order had been made for the service of the summons by publi
cation, which order was similar in all respects to that in Phinney agt. Broschell (ante, 492), but it did not appear, as in that case, that the order
had been made in the judge's private chambers: Held, that it was not void by reason of its having a caption and a direction
to enter, but could be treated as the order of a judge. Held, also, that the order might be amended, on motion, after it had been
acted upon, by striking out the superfluous portions. April 1880.