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to make improvements of special advantage to certain 4 Zabr. 385; Northern Lib. v. St. John's Ch., 13 of the citizens at their expense. * * * So far public Penn. St. ; Canal Trustees v. City of Chicago, 12 Ill. opinion and long-continued legislative practice have 403; Mayor of Baltimore v. Proprietors, etc., 7 Md.517; sustained local taxation with great unanimity, and Lefever v. Mayor, etc., 2 Mich. 586. — [ED. ALB. L. J. this is strong evidence of the true interpretation of the constitutional power of the Legislature to author

DISBARMENT OF ATTORNEY - WHAT WILL ize municipal taxation of this sort." In McMasters v.

AUTHORIZE EVIDENCE - APPEAL Commonwealth, 3 Watts, 293, a new phase of taxation was presented in the assessment of one person's prop

FROM DISCRETIONARY ORDER. erty to pay compensation awarded to another whose property had been taken for a public use under the NEW YORK COURT OF APPEALS, SEPT. 28, 1880. power of eminent domain, but it was sustained as a proper application of that principle of local taxation

IN RE ELDREDGE. which authorizes the assessment of property specially benefited by a local improvement of a public nature,

The orders not reviewable in the Court of Appeals on the

ground that they are discretionary, are those addressed for the purpose of defraying the expense thereof. The

to the favor of the court and to which the applicant admitted authority of the Legislature to confer upon

has no absolute right, which may or may not be granted municipal corporations the power of assessing the cost

without wrong on either hand. of local improvements on properties benefited is re- There is a distinction between proceedings for contempt cognized in Hammelt v. Philadelphia, 15 P. F. Smith, occurring in the presence of the judge and the facts 164, as “a species of taxation, not the taking of private constituting which are certified by him, and cases of property by virtue of eminent domain."

professional misconduct out of the presence of the We have thus referred to these cases not for the pur

court. In the former it is held that the facts embodied

in the order of the judge must be taken as true, in the pose of vindicating the right of the Legislature to

latter the right of review is asserted not only where authorize assessinents in various forms for local im

there has been a want of jurisdiction, but also where provements, but to show that they are regarded as a the court below had decided erroneously on the testispecies of taxation; that it is only on the principle of

mony. taxation that they are sustained. The cases of North- In proceedings to disbar an attorney where the charges are ern Liberlies v. Church, 1 Harris, 104; Pray v. Northern denied, the common-law rules of evidence apply. The Liberties, 7 Casey, 69; and Borough of Greensburg v.

accused is not to be tried upon affidavits, but is entitled Young, 3 P. F. Smith, 281, have been cited as authority

to confront the witnesses and subject them to cross

examination and to invoke the well-settled rules of evifor the position that assessments for local improve

dence. ments are not taxes. What is said in Washington

An attorney in proceedings for the probate of a will, who Avenue, supra, in regard to two of these cases is

had taken out a commission for the examination of a equally applicable to the other, viz., the court did not witness, prepared answers for such witness to the intermean to decide that such an assessment is not taxation rogatories and cross-interrogatories, furnished them to within the general legislative power to tax. Had it

the witness who had received various sums of money been meant to say that such an assessment is not taxa

from him, read a part of the answers to the commistion at all, it would in effect deny the power of the

sioner and left the rest for the witness to repeat, and

thus got the answers before the surrogate as honest Legislature to authorize the assessment- a power

testimony. Held, sufficient to authorize an order diswhich was affirmed in all these cases. It follows

barring the attorney even though the answers were not from what has been said that the claim of the city is a shown to be false, and it appeared that the attorney species of taxation for local and not State purposes, believed them to be true. based solely on the taxing power delegated by the State, and inasmuch as the charter of the company expressly exempts its land from such taxation, the lien is invalid,

practice as an attorney and counsellor at law. and the plaintiff in error is entitled to judgment. If

The facts appear in the opinion. it were at all necessary, it would be an easy task to FINCH, J. The questions raised on this appeal inshow the wisdom and propriety of exempting such volve the professional character of a member of the property as that of the plaintiff in error from local bar, and the propriety of the decision of the General taxation, but nothing of that kind is required. It is Term which has suspended him from the office and sufficient to know that the Legislature in creating the the duties of an attorney for three years. While the corporation exempted its property from such taxation. discipline may seem light, it is yet severe, for it is the It is unnecessary to consider other minor points in- public and grave conclusion of the court, deliberately volved in the case stated.

spread upon the record, that the appellant has been Judgment reversed and set aside, and judgment is guilty of conduct unbecoming his profession, and denow entered on the case stated in favor of the defend- serving judicial censure. The struggle to reverse this ant below.

determination and defend the reputation assailed,

awakens our sympathy and demands of us patient care Note. – In Buffalo City Cemetery v. City of Buffalo, and consideration to prevent even a trace of injustice; 46 N. Y. 506, a conclusion apparently the reverse of while, at the same time, our duty to an honorable prothe above was reached by the New York Court of Ap- fession, the need of preserving unsullied that high peals. Under a statute exempting the lands of ceme- standard of truth and purity by which alone an office tery associations from “all public taxes, rates and of justice should be measured, demands of us a cold aesessments," it was held that the exemption did not and deliberate scrutiny, and firmness in declaring its apply to an assessment to defray the expense of a side- result. We have therefore examined minutely all the walk constructed upon a street running alongside the voluminous papers submitted on the argument, and lands of such an association. The court say that pub- considered carefully the able discussion at the bar, and lic taxes are exactions toward the expense of carrying the fullland thoroughly prepared briefs of the respecton the government, but those charges laid upon prop- ive counsel, desiring to omit no labor necessary to a erty in a circumscribed locality, to effect a work of correct conclusion. local convenience, which results in peculiar advantage A preliminary question needs to be considered. It to the property assessed, are not public but local and is insisted that the order of the General Term is not private, so far as the statute was concerned. See Peo- | appealable, because resting in discretion; and that ple v. Mayor of New York, 4 N. Y. 419; Fairfield v. when no legal question is involved, no dispute as to Ratcliff, 20 Iowa, 398; City of Paterson v. Society, etc., 1 jurisdiction or authority, the conclusiou of the Supreme Court upon the facts is final and not subject to review. of holding that upon the trial of issues involving proWe do not so understand the authorities to which we fessional misconduct and the right of an attorney to are referred. Matter of Gule, 75 N. Y. 5:26; Matter of retain his office and its privileges, the common-law Percy, 36 id. 651; Matter of Kelly, 59 id. 595. While in rules of evidence may be disregarded. We should be one, at least, of these cases, language is used sus- slow to follow such an authority if it existed. The ceptible of the interpretation claimed, the fact remains issue is vital to the party assailed. An adverse decision that this court did review upon the merits, in at least dooms him always to disgrace, and often to poverty two of the cases, the action of the Supreme Court, and and want. His professional life is full of adversaries. consider and discuss the proofs upon which that action Always in front of him there is an antagonist - somewas founded. While the measure of punishment con- times angry and occasionally bitter and venomous. sequent upon a conclusion of guilt may fairly be said His duties are delicate and responsible, and easily subto be within the discretion of the immediate tribunal, ject to misconstruction. To say that when he denies the conclusion itself — the adjudication of guilt or in- the charges brought against him he may be tried withnocence upon the facts – is not so far the subject of out the rights and the safeguards which belong to the discretion as to be beyond review. The class of orders humblest criminal, would be to adopt a dangerous rule, not reviewable for that reason are substantially those and one without reason or justification. The question addressed to the favor of the court, to which the ap- is important, and it is best that we decide it. On the plicant has no absolute right, which may or may not application addressed in the first instance to the court be granted without wrong on either hand. The order as the mode of arousing its attentiou and setting it in question is not of that character. The guilt or inno- in motion, affidavits, minutes of testimony - any thing cence of this appellant does not rest in the absolute which furnishes needful information - may be used as discretion of any court. An acquittal is his right if the basis upon which to found an order to show cause. upon the facts he is not shown to be guilty, and we Upon the return of that order the accused is heard. cannot evade or avoid the inquiry. The cases in the He may confess; he may explain; he may deny. If Supreme Court of the United States cited as holding he confess, the court may at once render its judgment; the contrary, we think, are misapplied. Ex parte if he explain, the court may deem the explauation Bradley, a Wall. 365; Bradley v. Fisher, 13 id. 336; sufficient or the reverse; but if he meets the accusation Bradwell v. The State, 16 id. 130; E.c parte Robinson, 19 with denial, the issue thus raised is to be tried, sumid. 511; Ex parte Burr, 9 Wheat. 530. A plain line of marily, it is true, by the court itself or by a referee, distinction is drawn between proceedings for a con- but nevertheless to be tried, and on that trial the actempt occurring in the presence of the judge and the cused is not to be buried under affidavits or swamped facts constituting which are certified by him, and cases with hearsay, but is entitled to confront the witnesses, of professional misconduct out of the immediate to subject them to cross-examination and to invoke the presence of the court, where the actual truth is matter protection of wise and settled rules of evidence. In of evidence. In the former class of cases it is held adopting this conclusion we only secure to the memthat the facts embodied in the order of the judge must bers of the bar the common rights and ordinary privibe taken as true; in che latter the right of review is leges of the citizen. asserted. not only where there had been want of juris- It remains to consider whether the evidence addiction, but also where the court below “had decided duced before the referee justified the decision which erroneously on the testimony.” Its discretion is pro- suspended this appellant from the practice of his pronounced not unlimited; it must be a “ sound discre- fession. A portion of the charges against him were tion;" and while not to be overruled in cases of doubt, very grave. They were nothing less than perjury and is yet the subject of review.

subornation of perjury. A will of his wife's father As we approach the facts of the case at bar another had practically disinherited her; no fault or misconpreliminary question is to be considered, raised this duct of hers explained or palliated the act, and it could time on behalf of the appellant. He insists that the only be accounted for by the testator's anger against affidavits and papers upon which was founded the her husband, or the persistent and paramount influorder to show cause, and which were transmitted to ence of the other children and those connected with the referee appointed to determine the issues raised, them. On this latter ground the appellant, in the were not evidence upon those issues, and could have no name of his wife, and acting at first as her proctor and other proper office or effect than that of pleadings or all the time as her counsel, resisted the probate of the statements of the charges or accusations relied upon. will. Upon the hearing he introduced in evidence the In reply the broad doctrine is asserted that these atfi- testimony of three witnesses — Andies, Wheeler and davits were evidence; that the common-law rules did Mason — taken out of the State and by commission. not apply to the proceeding; that every thing was ad- The answers they gave were very minute in their demissible, and its effect only the subject of considera- tails and unusually long and full, and tending to show tion. The language of a previous decision of this undue influence operating upon the mind of the tescourt, that “the common-law rules of evidence do not tator and producing the result accomplished by the apply to proceedings of this character" was pressed will. At the conclusion of the hearing probate was upon our attentiou. In re Percy, 36 N. Y. 651. The refused by the surrogate. In his opinion, he gives very doctrine in that case was correct to the extent of its slight weight to the evidence taken by commission, application. It related only to the kind and character and rests his conclusion mainly upon the other eviof evidence presented to the court for the purpose of dence in the case. Not long after, the defeated parties originating its action. For that purpose affidavits opened a new attack. They presented to the surrogate were properly held sufficient, and also the verified a mass of affidavits, which in their printed form make minutes of a trial at the Circuit. And it was only with a book of 285 pages, tending to show that the evidence reference to this preliminary step — the evidence neces- taken on commission was false and a fraud upon the sary to justify action by the court – that the language surrogate, and that the husband and proctor of the cited was used. The opinion in that case goes on to contestant was the author and contriver of the wrong. declare tbat the court may and ought to cause the Upon these affidavits the surrogate made an order on charges to be preferred, whenever satisfied, from what the 11th of March, requiring the contestants to show has occurred in its presence, or from any satisfactory cause before him, on the 29th of March, why the deproof, that a case exists where the public good and cree rejecting the will should not be opened and vaends of justice call for it. Upon the return of the cated, and the evidence taken on commission stricken order the court proceeded properly to investigate the out and expunged, on the ground that it was procured charges.” The decision, therefore, falls very far short ! by fraud, perjury and subornation of perjury._Eldridge and his wife seem to have been stunned by the rogatories, aud eighteen pages of answers to crosssuddeness and magnitude of the attack, which was interrogatories, furnishes them to the witness who has largely based upon affidavits of Andies and Wheeler, already drawn upon him for various sums of money, confessing with shameless effrontery their own perjury reads a part of the answers to the commissioner, and and wickedness, and pointing to Eldridgo as the active leaves the rest for the witness to repeat, and so practicause, and upon circumstances tending to show that

cally puts his own words, his own ideas, his own facts, the witness Mason was a myth, and was personified into Wheeler's mouth, and gets them before the surrobefore the commissioner by one Byrues. A settlement gate disguised as honest testimony. Such conduct is of the controversy over the will followed, apparently inexcusable. The coloring sought to be given it by arranged by counsel, in which Eldridge took no part, Eldridge--that he merely meant to refresh the memory except that of silence, through which the decree re

of the witness - is not justified by the facts. He furjecting the will was vacated without opposition, the nished answers, not notes. He controlled and masevidence taken on commission stricken from the re- tered the memory of the witness; not merely refreshed cord, the will admitted to probate, and soon after a it. The witness did not answer at all. Eldridge anprovision made for the contestant in excess of the tes- swered for him. We get neither the language nor the tator's bequest, and to some extent recognizing her memory of the witness; we get only that of his teacher. equitable claims. This peaceful settlement, however, Practically the examination was merely an affidavit was soon followed by the presentation of the affidavits

drawn by Eldridge and sworn to by Wheeler. In its and papers used before the surrogate to the General true character it was not admissible before the surroTerm, which, after notice to Eldridge and considera

gate. When, therefore, it was disguised the shape tion of his answer denying the charges, sent the case

of testimony and the form of an examination, and so to a referee. The latter held, and the majority of the received into the case, a fraud was committed on the General Term concur, that the charges of perjury and surrogate, and the author of it was Eldridge. Grant subornation of perjury, and that of imposing a false that the answers are not shown to be false, aud that witness as being Peter Mason upon the commissioner, Eldridge believed them to be true; yet he corrupts were not established. That conclusion it is not neces

justice at the fountain by dictating the evidence of sary to disturb. But the referee finds, and the Gene

the witness. Upon the trial of an issue in open court ral Term concur, that, in respect to the deposition of

a question merely leading is excluded. The law 80 Wheeler, the conduct of the appellant was such as

carefully guards the independent and unwarped testijustly to deserve the censure and discipline of the

mony of a witness that it will not permit, even by the court. The facts in this respect do not depend upon form of a question, the suggestion of its answer. Yet affidavits, or evidence of a character open to criticism. here the answers to thirty-three direct interrogatories They rest mainly upon the admissions of Eldridge

and forty-one cross-interrogatories are actually writhimself. Regarding the affidavits presented to the

ten out by the attorney for the use of the witness, and court substantially as a pleading, they nevertheless con

so imported into the case. stituted an accusation which called upon Eldridge for It is intimated on his behalf that he did not go bean answer. Upon the admissions of that answer the

yond the custom of the bar. He may have thought so, case against him stands. Wheeler alleges in his afli

but is most certainly mistaken. If that were true, it davit that Eldridge wrote out in detail answers to be

would only make our duty all the more imperative. given by the witness to the interrogatories and cross- While a discreet and prudent attorney may very propinterrogatories of the commission; that when the de

erly ascertain from witnesses in advance of the trial position was taken Eldridge was personally present what they in fact do kuow, and the extent and limitaand himself read to the commissioner the answers he

tions of their memory, as a guide to his owu examinabad prepared, and then left with the witness, written

tions, he has no right, legal or moral, to go further. out in full, the answers to the cross-interrogatories,

His duty is to extract the facts from the witness, not which the latter read from the memorandum to the

to pour them into him; to learn what the witness does commissioner. Wheeler further charges that his tes

know, not to teach him what he ought to know. It is timony was both preceded and followed by payments

impossible, too, in this case, not to feel the force of of money by Eldridge, and produces his letters sug- other admitted facts. The payments of money by gesting a destruction of their correspondence, and

Eldridge to Wheeler, if not bribes, approach seriously begging for a return of the memoranda used at the

near to the line. He himself repudiating such purtaking of the deposition. Such original memoranda,

pose, seems fearful of that construction. His anxiety alleged to be in the handwriting of copyists employed

to get back his memoranda, and to have his correby Eldridge, were attached to Wheeler's affidavit. In

spondence destroyed, indicate his own inner conscioushis answer Eldridge admits that he furnished the

ness of conduct open to suspicion. It is impossible not memoranda for the deposition. He does not deny the

to feel sympathy for him in his struggle, and yet our authenticity of the prepared answers produced by

plain duty is to shrink from no conclusion which the Wheeler. He admits, and to some extent palliates purity and integrity of the profession demands. and excuses the payments of money. He does not

The order of the General Term should be aflirmed. dispute the correspondence produced. He does not deny reading the answers for Wheeler to the commissioner in Philadelphia, and leaving those framed for

WHO ARE SECOND COUSINS? the cross-interrogatories to be read by the witness.

ENGLISH HIGH COURT OF JUSTICE, CHANCERY DIHis explanations of these things do not satisfy us. The

VISION, JUNE 14, 1880. memorandum made by Eldridge and produced by Wheeler, of answers to cross-interrogatories is a very long and carefully prepared document. It occupies in

RE PARKER; BENTHAM V. WILSON, 43 L. T. Rep. print about eighteen compact pages. On comparing it

(N. S. ) 115. with the deposition rea before the surrogate, is A testator gave one third of his residuary personal estate found to be absolutely identical. Laying aside then to his first cousins, and two-thirds to his second cousins. all questions of the truth or falsity of the answers,

Held, that by “second cousins" was meant the coldiscarding every thing dependent upon Wheeler alone

lateral descendants from a common great-grandfather,

and did not include first cousins once removed. as unworthy of credit, the fact yet remains that an attorney of the court having taken out a commission NHIS was an action for the administration of the for the examination of a witness, writes out what when printed are twenty-six pages of answers to inter- 13th Feb. 1878, having made his will dated the 28th

Testava se Yohnt Parker, deceasea

, who died on the

Jan. 1878, whereby he gave his residuary personal Cr. 56, decided two things, first, that cousin means estate, "one-third to my first cousins and two-thirds cousin german; and secondly, that first cousin onco to my second cousins.” The only question raised was removed does not mean second cousin. In the other, whether “second cousins" meant second cousins Stoddart v. Nelson, 6 De G. M. & G. 68, the question strictly so called, or whether it also included children was, whether cousin did not mean first cousin once of first cousins, or as they are commonly called, first removed and second cousin, and the Lord Chancellor, cousins once removed.

in deciding in favor of the first cousins simpliciter,

uses words which evidently refer to wbat, as I have JESSEL, M. R. The question I have to decide is, pointed out, occurred in Mayott v. Mayott. When you what is the meaning of “ second cousins" in this will ?

look at tbe case, the most that can be said against it is, “ First cousins" clearly means cousius german, both in that the Lord Chancellor does not appear to have ordinary parlance and according to the authorities. noticed that in the case before Lord Kenyon there was So, too, the term "second cousins" has a well-kuown

no person to answer the one description. As regards meaning, as signifying collateral descendants from a

the case of Re Blower's Trusts, L. R., 6 Ch. 351, I have common great-grandfather. No doubt as to the mean- only to remark, that it shows that modern judges are ing has been suggested, but it is said that I am bound

coming to this principle - that in questions of conto alter that meaning because of certain decisions.

struction you are not to alter the well-defined legal Now, unless those decisions lay down some principle, meaning of words, unless there are circumstances in they do not biud me, and accordingly it is said that the nature of the gift, or by way of context, to show the principle they establish is this — that a gift to

that the testator intended a different meaning, includsecond cousins" is a gift to all persons related within ing in such circumstances the state of affairs at the that degree. Has it been so laid down? The first case date of the will, is Mayott v. Mayott, 2 B. C. C. 125, wbich I am bound to say succeeding judges have misunderstood. That case is stated much more fully in the note in the last NEW YORK COURT OF APPEALS ABSTRACT. edition, and it there appears that the same persons, and no others, must have been living at the date of the ADMINISTRATOR INFORMALITIES IN BOND OF will and the death of the testator, and therefore that SURROGATE MAY COMPEL ACCOUNTING AND DISTRIBUat the date of the will be had no second cousius. It TION AFTER REMOVAL. — (1) The statutes (2 R. S. 77, was evident he was referring to some persons whom he $ 42) do not prescribe the tenor (Doug. 193; 7 Exch. knew, and consequently it was necessary to hold that 537) of the condition of the bond to be given by an he used the term “ second cousins” in other than its administrator; they prescribe the substance. A bond strict sense. The decision accordingly was, that he given by an administrator to whom letters were issued meant persons within the same degree of relationship, by the surrogate of Steuben county, named the surroso that even his grandniece was included. With all gate of Ontario county as one whose orders the prinrespect, I should not have let in the grandniece, but in cipal was to obey, but contained a clause that he should other respects I see no objection to the decision. Noth- faithfully execute the trust reposed in him as adminising is better settled than this, that where there is no trator, and another that he should obey all orders of person or property answering the description, the court

any other officer or court having jurisdiction in the looks to see whether there is not some one or some- premises, touching the administration of the estate thing that may be within it. That is all that case committed to him. Held, sufficient to render the really decided. The next case is Silcox v. Bell, 1 Sim. sureties liable in case of failure of the principal to pay & S. 301. The report does not state what relations the moneys ordered to be paid by the surrogato of Steuben testator left; it is evident that the decree did not fol- county. In such bonds the substance is looked to low the words of the will, but we cannot see now why more than the form, even though it is a surety to be the direction was framed as it was. If, however, you held. Wiser v. Blachly, 1 Johus. Ch. 607. See, also, look at Mr. Sugden's argument, you will see that Ring v. Gibbs, 26 Wend. 502; Casori v. Jerome, 58 N. Mayott v. Mayott is altogether misdescribed by him, Y. 315. (2) Upon an order made upon the application and yet the Vice-Chancellor in his judgment follows of one of the next of kin, a final accounting was had, that argument. So here we have a case, in my opinion, the administrator rendered his accounts, and the surentirely wrong, where the Vice-Chancellor was clearly rogate found and decreed that there was due and paymisled by counsel - a counsel, no doubt, of great influ- able to the person next of kin named, a sum specified ence and eminence - as to the effect of Mayott v. as her distributive share of the intestate estate and Mayott. The next case of Charge v. Goodyer, 3 Russ. the administrator was ordered to pay it to her. But 140, is an illustration of the danger of following authori- it appeared that before the proceedings for accounting ties without looking at them. There the gift was to were instituted, the letters of the administrator had first and second cousins, and the report says:

been revoked. No one had been appointed in his admitted that the bequest to first and second cousius, place, and the moneys in question bad come into his had it stood unmodified by any circumstance or ex- hands as administrator. Held, that the surrogate had pression, would have included all persons of the degree power to decree a distribution of the moneys in the of second cousins; that is, first cousins once removed administrator's hands to the next of kin. This he and first cousins twice removed." The cases of Mayott would have under the provisions of Laws of 1837, chapv. Mayott and Silcox v. Bell are then referred to, and ter 460, and without this act, under 2 R. S. 92, $ 52. throughout this is spoken of as the legal construction The statutes in general terms give to the surrogate the of the gift, and in his judgment the Master of the Rolls authority to cite an administrator to an account after gives no decision as to whether that was the legal cou- the lapse of eighteen months from his appointment, struction, although, with all respect, it seems to me and the section ($ 52) does not mean to confine the that that was the point before him. Those are the power so that it may not be exercised save against one cases supposed to establish the proposition that a gift who is actually in the office of au administrator. See to second cousins is a gift to all within the degree of Dakin v. Deming, 6 Pai. 95; Everts v. Everts, 62 Barb. second cousin. But there is a good deal of authority 577; Annett v. Kerr, 2 Robt. 556. The order of disthe other way. There is the case of Corporation of tribution made by the surrogate bound the adminis. Bridgnorth v. Collins, 15 Sim. 511, in which Shadwell, trator and the sureties upon his bond. Schofield v. V. C., held that second cousins meant second cousins Churchill, 72 N. Y. 565. Order affirmed. Gerould v. and nothing else. There are two cases decided by Lord Wilson, appellant, et al. Opinion by Folger, C. J. Chancellors. · The one, Sanderson V, Bayley, 4 My. & [Decided Sept. 21, 1880.]

“ It was

NEW YORK CITY — REMOVAL OF OFFICER MUST BE from the assignor to the city at the time of the assignFOR CAUSE SUPERVISING ENGINEER --- NOT ANSWER- ment. Although the general rule is that to compel & ABLE FOR NEGLIGENCE OF SUBORDINATES -- REVIEW set off of two demands, there must be a mutual right OF REMOVAL. - (1) The relator was, under the city of action upon them at the same time (Myers v. Davis, charter, the engineer having supervision of public 22 N. Y. 489), yet the circumstance that one party is work done upon the streets for the city of New York. required to take some preliminary step before institutAn arch constructed whilo relator was in such posi- ing his action does not affect the right of set-off. Retion, upon a street in that city, fell in consequence of viewing Patterson v. Patterson, 59 N. Y. 579; Jordan bad workmanship and materials. The workmen em- v. National Bk., 74 id. 467; McDowell v. Tate, 1 Dev. ployed in building that arch were not appointed by 249; Frances v. Dudworth, 4 C. B. 202. An English relator; and inspectors were appointed by the com- court held that a debt might be set off though because missioner of publio works, who directed the work, of an especial statute an action could not then be which inspectors were required to inspect, the material maintained upon it. Brown v. Tibbetts, 11 C. B. (N. to be furnished and the work done under the agree- S.) 855. It is the condition or state of the demand ment, and to see that the same corresponded with the at the time that is looked at. Wells v. Stewart, 3 Barb. specifications, and to report to the commissioner him- 40; Martin v. Kuuzmuller, 37 N. Y. 396, 401; see 5 self and to the superintendent of street improvements. Edm. St. 574; note to 2 R. S. 354, $ 18, subd. 5, citing 6 In consequence of the fall of the arch the commis- Cow. 615, and 5 Johns. 105; 3 id. 150; Pomeroy on sioner, who had authority under the charter for such Remedies, $ 452, etc. An infant cannot maintain an purpose, removed the relator from his position. In action on a demand unless he first procures a guardian proceedings to review such removal, held, that relator ad litem appointed, but could set off that demand could only be removed for cause. People v. Fire Com- against a suit by the assignee of a claim held by his missioners, 72 N. Y. 445; Sims v. Fire Commissioners, debtor. Whitmarsh v. Hall, 3 Den. 375, does not con73 id. 437. The protection given by the charter to his flict with this. In the case at bar the creditor had at tenure of office this court has held to be substautial common law the same right to maintain his action and effective, and not merely shadowy or formal. The against the city as against any other debtor. By statute commissioner had a right to call on relator for an ex- this right is abridged, and such a statute is construed planation, and prima facie it was relator's duty to strictly, and as this statute does uot in terms include have discovered and prevented the defect in the arch the case of set-off, that right is not taken away. Under causing its fall. The supervising engineer, if he con- an English law an attorney cannot maintain an action trols the appointment of the workmen uuder him, is for costs against his client until thirty days after he responsible for their skill and fidelity. But he is not has presented his bill, but this has been held not to 80 responsible wbere he has no power of appointment. deprive him of a right of set-off for costs in an action Kelly v. Mayor of New York, 11 N. Y. 432; Pack v. against him by his client where he had not presented Mayor of New York, 8 id. 222. In such case he is his bill. Martin v. Winder, Douglass, 199, n. x63; guilty of no negligence. The unwise and improper Bullard v. Birket, 1 Esp. Cas. 449. See Lester v. appointment is not his, and every rule of justice would Lazarus, 2 Cr. M. & Ros. 665; Downer v. Eggleston, 15 be violated by imputing to him the negligence of an Wend. 51. (2) By the statute an action against the agent whom be did not select and could not remove. county of New York is not maintainable upon a county And here the provision made for inspecting imposed charge, a contingent expense of the county. Plaintiff's upon others the duty of supervision. While the work assignor held a claim against the county which was progressed, relator had a right to assume that the in- such a charge; the county held at the same time a claim spectors appointed by his chief were doing their duty, against the assignor that was due. Held, that the two and that they were guarding against weak construction

claims were the subject of set-off. The principle that and poor material. He had a right to leave this duty a demand against a State cannot be set off by its citiwhere the cominissioner bad placed it, and to assume zens against a demand of the State does not apply. that his own skill and care were to be exercised in

The reason for such a principle is that a State cannot other directions. He was not, therefore, at fault for be coerced in its own courts. State v. Blank, 1 Hayes, the defect in the arch, and there was no cause for his 223; State v. Balt. & Ohio R. Co., 34 Md. 374, which removal. (2) The rule that this court will not review reason does not apply to counties. The county is exthe decision of such a commissioner on the merits empted from liability to action by the statute, an (People v. Board of Police, 69 N. Y. 409) explained: abridgment of a common-law right to be strictly con“Where there is any evidence before the officer from strued. The courts may compel a county, by manwhich an inference of incapacity or unfitness could be

damus, to pass upon and allow a legal claim. People drawn, we are not to reverse the decision, because our

v. Supervisors, etc., 45 N. Y. 199. And a mandamus own conclusions would perhaps have been different.

proceeding is a suit within the meaning of the Federal But there must be some evidence to justify the re- Constitution. Weston v. City of Charleston, 2 Pet. moval. Iftbere is none, the removal is not for cause, 449; Holmes V. Jennesou, 15 id. 564. Judgment affirmed. and the statute is violated.” Order reversed. People Taylor et al., appellants, v. Mayor, etc., of New York. ex rel. Campbell, appellant, v. Campbell. Opinion by Opinion by Folger, C. J. Finch, J.; Rapallo, Andrews and Earl, JJ., concurred; [Decided Sept. 21, 1880. ] Folger, C. J., Miller and Danforth, JJ., dissented. [Decided Oct. 5, 1880.]



SEPTEMBER, 1880. TIONABLE SUBJECT OF.-(1) The statute provides that no action shall be maintained against the city of New CONFLICT OF LAW-AT IMENT VALID AGAINST York unless the claim on which it is brought has been PREVIOUS ASSIGNMENT FOR CREDITORS IN ANOTHER presented to the comptroller and he has neglected, for STATE. — A debtor in Rhode Island made an assignthirty days thereafter, to pay the same. One holding ment for the benefit of creditors, valid under the laws a claim for services against the city which had not of that State. The assignee came into Massachusetts been preseuted to the comptroller assigned the same and took possession of personal property there belongto plaintiff. Held, that in an action upon the sane by ing to the debtor. Before this property was removed plaintiff, the city might set off an indebtedness due from Massachusetts it was attached by D., a creditor


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