Page images

Opinion of the Court, per CAMPBELL, J.

subsequent proceedings by the assembly were irregular and of no effect, and when there was a failure to procure the assent of the senate to an amendment, it was, I think, the duty of the assembly to return the bill to the governor. Failing to do this during the session, the duty devolved on the clerk. These remarks are only intended to show what .is believed to be well settled parliamentary usage and law. The resolve of the senate that the matter had passed beyond separate control was, I think, clearly right. If we were permitted to go beyond the record, therefore, it would not vary the decision in this case.

The question whether the fifth section of the act of 1863 applies to the chamberlain of the city of New York, is answered by a simple quotation of part of section 101. (1 R. S., 5th ed., p. 865.) “The chamberlain of the city and county of New York, shall be considered the county treasurer thereof." The article of which that section is a part relates to the county treasurers, and as far as relates to the duties of the chamberlain in receiving and paying over the moneys of the State, he is clearly a county treasurer. The law says he is “considered the county treasurer.” If he is so considered in the statute, it would be absurd to say he is not the county treasurer. If the defendant is chamberlain in his dealings with the city of New York, he certainly is county treasurer in his dealings with the State.

The fifth section of the act is general in its terms and requires the treasurers to pay over the State tax raised and paid to such treasurers, not the State taxes to be levied and collected under and by virtue of the law of 1863, but all State taxes that may come into their hands. The taxes in question came into the hands of the defendant some time after the act of 1863 became a law. The defendant had no vested interest in the emoluments of his office which the legislature could not affect. The prospective salary or emoluments of a public office are not property, and may be increased or reduced by law at all times, except in the cases where the Constitution has forbidden it. (Connor v. The Mayor, 1 Sold., 285.) There is no constitutional provision forbidding

Statement of case.

the legislature interfering with the percentage to be charged or the emoluments to be received by the county treasurer of New York.

In my opinion the judgment is right and ought to be affirmed.

In which all the judges concurred.
Judgment affirmed.


ministratrix, of Moses Chapman, deceased, v. GEORGE M. TIBBITS.

The general guardian of infants has the same power over the property and

estate of his wards, as a testamentary guardian; and can receive moneys secured to them by mortgage and discharge the mortgage, before the same becomes due.

The sum of two hundred dollars was bequeathed to each of the five minor children of George L. Chapman, and the same was loaned to the latter, upon interest. To secure the payment thereof, he executed a bond, with a mortgage, in which his wife joined, upon certain lands in the county of Rensselaer, conditioned to pay the said principal sum of two hundred dollars, with the interest, to each of the said infants as they respectively attained the age of twenty-one years. Afterwards he was duly appointed the general guardian of each of the said infants, by the surrogate of the county of Rensselaer, by letters dated April 28, 1842, and qualified as such. In March, 1847, he, together with his wife, conveyed the mortgaged premises by deed of conveyance, to the defendant in this action, subject to the mortgage. In September, 1847, the defendant, at the request of the guardian, paid him the principal sum mentioned in the mortgage, with the interest to the time of payment, and the latter, as such guardian, executed a certificate of satisfaction in the usual form, and the mortgage was thereupon satisfied and canceled of record. Four of the infants, upon attaining full age, executed an assignment of their interest in the mortgage to

TIFFANY. - Vol. VI. 37

Opinion of the Court, per BROWN, J.

the plaintiffs' intestate, Moses Chapman, who instituted the present action to foreclose the same. He died pendente lite, and the plaintiffs were substituted in his place. The foregoing facts were found by the judge at Special Term, and judgment thereon rendered for the defendant. An appeal was taken to the General Term of the third district, where the judgment was affirmed, and hence the appeal to this court.

R. S. Gurnsey, for the appellants.
Beach & Smith, for the respondent.

Brown, J. There is no charge of fraud or complicity between the guardian and the defendant in regard to the money collected upon the mortgage. It was originally the guardian's own debt, and he collected it from the defendant before it became due. This was rather an unusual circumstance; but there may have been reasons for it, of which the guardian alone was the judge. He possessed over the estate and property of his wards the same power as a testamentary guardian, which was, to take the custody and management of their personal estate and the profits of their real estate. This custody and management implies the power to collect and receive moneys due to the minors, whether secured by mortgage or otherwise, and to execute discharges and receipts therefor. There are a class of securities, the property of minors, over which the guardian has no such control; and these are, the proceeds of real estate, and moneys the proceeds of real converted into personal estate under the decree and order of the court. Such proceeds are still regarded and treated as real estate, and are not subject to the disposition of the general guardian without the special order of the court for that purpose. The counsel for the plaintiffs has not, I think, sufficiently attended to the distinction between these two classes of securities.

The guardian had a right to collect the money secured by the mortgage, and to cancel the same of record. The judgment should be affirmed.

All the judges concurred in affirming the judgment.

Statement of case.

[ocr errors]

Rensig wh Barb 9850 e 19,58

33 291 127 582

33 291 133 237

John Donovan, Respondent, v. The MAYOR, ALDERMEN AND

COMMONALTY OF THE Crry of New YORK, Appellants.
See on Rober, 209
Where municipal officers act without authority in contracting for the repair of

the streets of the city, the city will not be liable for the work performed

under such contract. Thus when the appropriations for repairing such streets had been exhausted,

and no appropriation for such purpose existed at the time the work was performed, and the street commissioners had given no certificate as to the necessity of such work, and the common council of the city had not authorized it, the city would not be liable for work performed upon its streets, and material for the same provided, though performed under a contract with some of the municipal officers.

The action was for work and materials. The complaint alleged that in November and December, 1863, the plaintiff performed work, labor and services, and furnished materials, on the public roads of the city of New York, at the request of the defendant, specifying the value thereof, and claiming that the defendant was indebted to him therefor.

The answer alleged that $75,000 was appropriated by chapter 227 of the Laws of 1863 to defray the expenses of repairing roads and avenues for that year; that at the time of the alleged employment of the plaintiff, this appropriation was exhausted, and that there was and is no money in the city treasury applicable to the payment of his claim; that no appropriation covering the expense of the work alleged to have been done by the plaintiff had ever been made; that the necessity for the work had never been certified by the street commissioner, and that the work had never been authorized by the common council.

The plaintiff demurred to the answer, and judgment was rendered in his favor at the Special Term, and affirmed at the General Term.

John E. Devlin, for the appellants.

Thomas C. Fields and Henry H. Anderson, for the respondent.

Opinion of the Court, per PORTER, J.

PORTER, J. This is a hard case. A great number of a similar character now pending in the court below, depend upon our decision. If the appellants prevail, the respondent and those similarly situated will be without redress, unless against those who without authority assumed to employ them. If the respondents are right, the city of New York and all other municipal corporations within the limits of the State are delivered over to the local authorities, to be dealt with at the pleasure of city and county officials, practically free from the restraints of State sovereignty, and the limitations of general laws for the protection of the constituent body against favoritism, corruption and improvidence.

The answer of the defendants does not deny that the expenditure in question was contracted by the corporation, and the demurrer substantially admits that the debt was contracted in express violation of law. It concedes: 1. That at the time the cause of action is alleged to have accrued, the appropriation for the expenses of repairing the city roads and avenues for the year 1863 was exhausted. 2. That there neither was nor is in the city treasury any money applicable to the plaintiff's claim. 3. That the necessity for the work alleged in the complaint was never certified by the head of the appropriate department. 4. That the work alleged to have been performed by the plaintiff, was never authorized by vote of the common council.

The amended charter of the city provides, that "no expense shall be incurred by any of the departments or officers, whether the object of the expenditure shall have been ordered by the common council or not, unless an appropriation shall have been made covering such expense.” (1 Laws of 1857, p. 881, $ 28.) It further provides that “no expenditure for work or supplies, for which no contract is required, shall be made, except the necessity therefor be certified to by the head of the appropriate department, and the expenditure be as authorized by the common council.” (1 Laws of 1857, p. 886, $ 38.)

The act appropriating the sum of $75,000 for work on the roads and avenues in the year 1863, embraces an express

« PreviousContinue »