Olendorf v. Cook.

tiff for the premises, as claimed in the complaint as amended, and the defendants excepted. Upon this the point is now made that the amendment of the complaint related only to the description of the land, and that as the complaint alleged that the plaintiff was seized, on the 1st day of May, 1868, as tenant of the defendants for the term of two years, of the premises, the plaintiff has recovered for a longer term than the proof justified.

The demise is "for and during the term of one year from the 1st day of May, 1868, with the refusal thereof for the next succeeding year thereafter, at the same price hereinafter named." I do not understand that the plaintiff had by virtue of this lease, a title for a term beyond one year from May 1, 1868. The refusal for another year was a covenant for a lease for another year if the lessee should elect to take such lease, and if he should so elect perhaps no new lease would he necessary. The recovery should have been as upon a demise of one year only. But I doubt whether the exception was sufficient.

The court had just allowed the complaint to be amended by inserting a proper description of the premises, and then directed a verdict for the premises as claimed in the complaint as amended, and the defendant excepted. What did the court probably understand by this general exception? Probably nothing more or less than that the counsel objected to any recovery, or rather that the court should direct a verdict claiming that the plaintiff had no right to recover, or that the case should go to the jury. This followed by requests that certain questions should be submitted to the jury. The court would not be likely to understand that the exception was pointed to the question now made, viz.: That the verdict would be for a term of two years instead of one, commencing May 1, 1868. If the counsel so understood, at the time, he should have called the attention of the court to the lease in ev.dence, and to the fact that the complaint was too broad, and the complaint could have then been amended, or the direction to the jury modified.

The People v. Bristol.

There needs, however, be no difficulty now in the case. The Code gives the court here ample authority to correct the mistake before or after judgment, in furtherance of justice, to conform the pleadings to the facts proved. (Code, § 173.) This is a very proper case for the exercise of this discretionary power, and the court directs such amendment. The verdict in this case was general for the premises as demanded in the complaint. By the statute, the verdict should have specified the duration of the term. (2 R. S., p. 307, § 30, subdivision 7.) If the term had been properly stated in the complaint, as required by 2 R. S., p. 304, § 10, the verdict would have been sufficiently definite to comply with the provision of the statute. It is provided by the statute, that if the right or title of the plaintiff expires after the commencement of the suit, and before trial, the verdict shall be returned according to the fact, etc., etc., and the judgment shall be as to the premises claimed, that the defendant go thereof without day. In this case the right and title of the plaintiff have expired since the trial. I suppose the court simply affirms the judg ment, but no execution for the possession will issue or be awarded. The complaint should be amended as above stated, and the judgment should be affirmed with costs.

THE PEOPLE ex rel. HENRY C. SOUTHWICK v. WHEELER H. BRISTOL, Treasurer of the State of New York.

(GENERAL TERM, THIRD DISTRICT, MAY, 1869.)

The auditor of the canal department is not authorized by law to direct in his warrant, drawn upon the treasurer, the particular bank having on deposit money belonging to the canal fund, upon which the check in payment of the warrant shall be drawn by the treasurer.

The treasurer of the State has the custody and control of the canal fund, subject only to such power over the same as is by law vested in the commissioners of the canal fund, and has, therefore, the right to determine from which depository the money shall be drawn to satisfy any such warrant. Per INGALLS, J.

The People v. Bristol.

And it seems that the authority of the commissioners to direct the treasurer in this particular may be more satisfactorily inferred from the general powers conferred by law upon them, than such authority in the auditor can be inferred from the nature of his office, and the duties which by law devolve upon him. (Id.)

The commissioners of the canal fund having passed a resolution that the treasurer might, in his discretion, draw the check in payment of any warrant drawn by the auditor, upon any bank in the city of Albany having on deposit money applicable to the payment of the claim; and the auditor having drawn a warrant in favor of the relator, directing the treasurer to pay by check on the Mechanics' and Farmers' Bank, and the treasurer having drawn the check in payment of the warrant on the Merchants' National Bank, the auditor refused to countersign the same because it was not drawn on the bank specified in the warrant,-Held, on appeal from an order at Special Term, directing a mandamus to issue requiring the treasurer to draw the check as required by the warrant, that the treasurer, and not the auditor, had the right to select the bank on which the check should be drawn, and that the order appealed from should be reversed.

APPEAL from an order of the Special Term awarding a peremptory mandamus against the defendant, as treasurer of the State of New York, requiring him, forthwith, to draw his checks in favor of the relator in accordance with, and upon the banks designated in, the several warrants of James A. Bell, auditor of the canal department of the State of New York. Four several warrants, two of them dated in May, one in June, and the other in July, 1868, were issued by the said James A. Bell, auditor of the canal department, directing the treasurer to pay by check, drawn on the Mechanics' and Farmers' Bank of the city of Albany, to Henry C. Southwick, Jr., the sums of money in the said warrants specified, out of canal funds in the treasury, for the services of said Southwick. Upon the presentation of the warrants to the defendant, he drew and tendered checks, drawn upon the Merchants' National Bank of Albany, for the amounts required by the said warrants. The auditor refused to countersign such checks on the ground that they were not drawn upon the bank designated in said warrants, claiming the right to specify the bank from which the funds should be so drawn. The treasurer refused to comply with the requirement of the

The People v. Bristol.

auditor in that particular, claiming that as such treasurer he had the right to designate the bank from which the money should be drawn to pay the sums required by said warrants The checks, to be valid, required to be countersigned by the auditor, and that being refused, the relator could not procure compensation for his services, and he applied at Special Term and procured an order directing a mandamus to issue requiring the treasurer to draw his checks as required by said. warrants. From such order this appeal was taken.

W. F. Allen and M. B. Champlain, attorney-general, for the appellant.

John H. Reynolds, for the respondent.

Present-MILLER, INGALLS, and PECKHAM, JJ.

By the Court- INGALLS, J. A conflict has arisen between the auditor of the canal department and the treasurer of the State, as to which is by law authorized to designate the bank from which money belonging to the canal fund shall be drawn to pay claims upon such fund. This is the only question involved in this appeal. I have examined with care the elaborate opinion delivered at Special Term, in connection with the various statutes which have been passed from time to time by the legislature touching this question, and, while I entertain the greatest respect for the opinion of the learned judge who decided this motion at Special Term, I am compelled to differ with him in the conclusion to which he arrived, and will state the reasons therefor. The treasurer is a constitutional officer of the State. Article 5, section 1 of the constitution provides for the election of that officer. Section 6 of the same article prescribes, in regard to the powers and duties of the treasurer, as follows: "The powers and duties of the respective boards, and of the several officers in this article mentioned, shall be such as now are or hereafter may be prescribed by law."

The Revised Statutes, volume 1, page 177 (Edmonds' edi

The People v. Bristol.

tion), provides as follows: "§1. The treasurer shall receive all moneys which shall from time to time be paid into the treasury of the State." The treasurer is required by statute to give a bond, with not less than four sufficient sureties, in the sum of $50,000 for the faithful execution of the duties of the office. Statutes have been passed from time to time by the legislature, providing for the care and custody of the funds of the State, arising from various sources, and either in terms directing the money paid directly into the treasury of the State, or subjecting the same to the control of the treasurer. The following are some of these statutes: Laws 1826, chapter 314; Laws 1841, chapter 238; Laws 1842, chapter 114; Laws 1844, chapter 314; Laws 1861, chapter 177. The statute of 1817, chapter 262, which provided for the creation of the canal fund in section 6, provides as follows: “And further, that the said superintendent, instead of a yearly report to the legislature, shall make a quarter yearly report to the commissioners of the canal fund, and pay into the treasury of this State, on the first Tuesday of February, May, August and November, in each year, all the moneys collected by him during the quarter preceding each of those days, etc." Thus bringing such fund directly under the control of the treasurer of the State, which officer was by the same statute designated as one of the commissioners of the canal fund. The legislature has, in several instances, directed the deposit of certain funds of the State in banks, having reference as well to the convenience of depositors as the security of such funds. The Revised Statutes, volume 1, page 178 (Edmonds' edition): "§ 7. The treasurer shall deposit all moneys that shall come to his hands. on account of this State (except such as shall belong to the canal fund), within three days after receiving the same, in such bank or banks in the city of Albany as in the opinion of the comptroller and treasurer shall be secure and pay the highest rate of interest to the State for such deposit." Also in regard to the money belonging to the canal fund. Statute 1817, chapter 262, before referred to: "89. The said collectors shall deposit the moneys received by them for tolls to the

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