Statement of case. Bank of U. S. v. Davis, 2 Hill, 451; Fulton Bank of New York v. Coal Co., 4 Paige, 127; Citizens' Savings Bank v. Blakesley, 42 Ohio St. 645.) When a portion of a consideration is valid and the other malum in se, the failure is entire. The maxim ex turpi contractu non oritur actio applies. (Steinfield v. Levy, 16 Abb. Pr. [N. S.] 27; Gray v. Hook, 4 N. Y. 449; Pepper v. Haight, 20 Barb. 437, 438; Woodworth v. Bennett, 43 N. Y. 273.) Knowledge of the fraudulent intent to divert the moneys to be drawn on the part of a single director of the Tenth National Bank, who acted in any way in relation to these advances, is the knowledge of the bank, and is not simply constructive, but actual notice. (Wade on Law of Notice, $$ 681-683; Bank of U. S. v. Davis, 2 Hill, 451; Nat. Security Bk. v. Cushman, 121 Mass. 490; Clerks' Savings Bank v. Thomas, Mo. App. 267-282; Dana v. Bank of United States, 5 W. & S. 247; 2 Pomeroy's Eq. Jur. § 667; First National Bank v. Drake, 29 Kans. 31; Bank of New Milford v. Town of New Milford, 36 Conn. 93.) The legal presumption is that the members of the board of directors of the bank regularly attended the meetings which it was their duty to attend. (Shilkuecht v. Eastburn's Heirs, 2 Gill. & J. [Md.] 114; In re Mason, 4 Edw. Ch. 418; Martin v. Webb, 110 U. S. 7; Knick. L. Ins. Co. v. Pendleton, 115 id. 339; Bank of America v. McNeil, 10 Bush [Ky.] 54; Nat. Security Bank v. Cushman, 121 Mass. 490.) When a paper comes into the possession of a party, who does not produce it, or account for its loss, the most favorable intendment, as to its contents, will be made for the benefit of the other party. (Livingstone v. Newkirk, 3 Johns. Ch. 312; Hudson v. Arundel, Hob. 109; S. C., 2 P. Wms. 748; Dalston v. Coatsworth, 1 id. 731; 1 Ves. 235; Life & Fire Ins. Co. v. Mec. Fire Ins. Co., 7 Wend. 31, Barber v. Lyon, 22 Barb. 622, 625.) If the legislature intended, by chapters 9 and 29 of the Laws of 1872, or either of them, to legalize this counter-claim of the Tenth National Bank against the city, tainted as it was in great part by fraud, and wholly illegal, and which is the basis of the judgment recovered herein, Statement of case. such legislation is without constitutional authority, and in violation of the Constitution of the United States and of the state of New York. (Loan Association v. City of Topeka, 20 Wall. 655.) Thomas Allison for respondent. Upon the facts as found by the court below the defendant was entitled to recover on its counter-claim. (People ex rel. Tenth Nat. Bk. v. Green, 5 N. Y. Sup. Ct. [T. & C.] 376, 378.) As the fact of the advances, having been made by the bank to or for the use of the commissioners, was denied, a peremptory mandamus could not be granted until that issue was regularly tried and determined, and this could not be done by affidavits. (People ex rel. Tenth Nat. Bk. v Green, 5 N. Y. Sup. Ct. [T. & C.] 376, 378; Same v. Bd. of Apportionment, id. 382.) In view of the act of 1874, consolidating the city and county, the remedy by mandamus for county claims no longer existed, the bank's remedy, if it had a valid claim, was by an action against the city for the advances. (People ex rel. Tenth Nat. Bk. v. Bd. of Apportionment, 64 N. Y. 627, 628.) To such an action the non-issuance of the bonds would be no defense. (Quinn v. Mayor, etc., 63 Barb. 595, 600; 53 N. Y. 627.) The test of whether officers or commissioners, or other official bodies, are state, city or county officers or bodies does not depend upon the method of their appointment, nor on the fact that their duties are prescribed by statute, but depends upon the character and result of the duties to be performed by them, and upon the question at whose expense are those duties to be performed. (Wood v. Mayor, etc., 7 Hun, 164; People ex rel. Ryan v. Civil Service Boards, 41 id. 287, 298; Walsh v. Mayor, etc., Id. 299; 1 N. Y. 401; Erghott v. Mayor, etc., 96 id. 264; People v. Stout, 23 Barb. 349, 350, 352.) The new court house commissioners were commissioners of the county, because they were appointed to discharge a duty primarily resting upon the county, and by which the county was benefited, and the expense of which was to be defrayed by the county. (Code of Pro. §§ 15, 28, Opinion of the Court, per EARL, J. 51; Laws of 1853, chap. 529; Laws of 1860, chap. 509; Laws of 1861, chaps. 161, 240; Laws of 1862, chap. 167; Laws of 1863, chap. 108, § 1; Laws of 1864, chap. 242; Laws of 1865, chap. 605; Laws of 1866, chap. 837; Laws of 1867, chap. 806; Laws of 1868, chap. 854; Laws of 1869, chap. 875, 84; Laws of 1870, chap. 382, § 11; Laws of 1871, chap. 583, § 4.) The money having been borrowed by the commissioners without authority, and advanced by the bank for their purposes and use, the legislature had power to supply the want of authority and ratify the unauthorized act, and give it the same force and effect as if such authority had been given originally. (People v. Mayor, etc., 4 Comst. 419; Brewster v. City of Syracuse, 19 N. Y. 116; Town of Guilford v. Supervisors, 13 id. 143; People v. Mitchell, 35 id. 551; Darlington v. Mayor, etc., 31 id. 164; Brown v. Mayor, etc., 63 id. 239, 244; Nelson v. Mayor, etc., Id. 535; Dillon's Munic. Corp. [3d ed.] §§ 79, 80, 814; Cooley on Const. Lim. [13th ed.] 461, 467, 468, 473; Syracuse Bk. v. Davis, 16 Barb. 188.) The fact that the advances made were in violation of the national banking act has nothing to do with the question of legislative ratification. That fact did not in any way impair the right of defendant to recover the money advanced. (Gold Mining Co. v. Nat. Bk., 96 U. S. 640; Duncomb v. N. Y., H. & N. R. R. Co., 84 N. Y. 190, 205.) The defendant bank is not chargeable with any notice or knowledge had by any of its officers or directors, who did not. in fact act in its behalf or as its agents in the making of the advances. (Bank of U. S. v. Davis, 2 Hill, 451; President, etc. v. Cornen, 37 N. Y. 320; Holden v. N. Y. & E. Bk., 72 id. 291; At. Bk. v. Savery, 82 id. 293; Cragie v. Hadley, 99 id. 131.) EARL, J The learned and exhaustive argument by the counsel for the city has failed to convince us that the judgment appealed from is erroneous. The construction of the New York court-house seems to have been inaugurated by an appropriation, in the act Opinion of the Court, per EARL, J. chapter 509 of the Laws of 1860, of $100,000 "for the purpose of erecting suitable court rooms for the accommodation of the several courts of the county." By the act chapter 161 of the Laws of 1861, the board of supervisors of the county of New York was authorized and empowered to acquire and take for the purposes of building a court-house therein, such land in the city and county of New York as they might deem necessary for the purpose; and provision was made for taking and acquiring the land by condemnation proceedings, and for raising money on the credit of the county to pay for the same. By chapter 24 of the same year and chapter 167 of 1862, 108 of 1863, 242 of 1864, 605 of 1865, 837 of 1866, 806 of 1867, 854 of 1868, and 875 of 1869, the board of supervisors was authorized to raise money for the construction and completion of the courthouse. Under the act of 1861, land was acquired from the city upon which to erect the court-house, and during all the years named the construction thereof was carried on by the board of supervisors through agencies employed by it. The bills for work and materials employed in the construction were audited by the board of supervisors like other county bills, and were paid by the comptroller of the city. Then the system for the construction of the court-house was changed by section 11 of the act, chapter 382, of the Laws of 1870, which authorized and empowered the mayor of the city to appoint four commissioners for the final completion of the "new county court-house," and provided that upon the appointment of the commissioners all power of the board of supervisors over the erection of the court-house should cease; that the commissioners should have the power to expend and should complete the court-house for a sum not exceeding $600,000, which amount the comptroller was authorized and directed to raise on the stock of the county, to be designated the "New York County Court-House stock No. 4;" that the money so raised should be paid by the comptroller on vouchers approved by the commissioners. Under that act, on the 1st day of December, 1870, the mayor appointed James H. Ingersoll, Opinion of the Court, per EARL, J. Michael Norton, Thomas Coman and John J. Welsh the commissioners, who continued in office and served as such until some time after 1872. By section 7 of the act chapter 583 of the Laws of 1871, the sum of $750,000 was appropriated for the completion of the "New York County Court-House," to be expended under the direction and supervision of the court-house commissioners; and the comptroller was commanded on the requisition of the commissioners to pay over to their credit such sum or sums as they might from time to time deem necessary for such purpose; and the comptroller was authorized and directed to raise the amount appropriated on the stock of the county of New York. In the same act it was provided that no bonds or stocks of the city or county of New York, except those authorized to be issued by the direction of the commissioners of the sinking fund, and revenue bonds issued in anticipation of the taxes of the current year, should be thereafter issued except by the concurrence and authority of all the persons composing the board of apportionment, consisting of the mayor, comptroller, the commissioner of public works and the president of the department of parks, who should be present at a meeting called by the chairman of the board for that purpose on three days notice. From this review of the statutes it is clear that the courthouse was a county building, built for county purposes, at the county expense, upon county real estate actually purchased of the city, and that when built it belonged to the county. The commissioners appointed to build it were county commissioners, engaged in disbursing county moneys, and discharging functions devolved upon them as county officials or agents. It matters not that they were appointed by the mayor of the city. It was for the legislature to determine how they should be appointed. It could have named them in some act, or could have devolved their appointment upon the board of supervisors, or the sheriff, or some other local officer. Their character as county commissioners depended, not upon the source of their appointment, but upon the nature of their duties |