Page images
PDF
EPUB
[merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][ocr errors][merged small][merged small][merged small][merged small]

Matthews v. Robbins,

420

Mayor, &c., Donovan V., ..... 291

Mayor, &c., Harlem Gas Light

Company v.,

309

Mayor, &c., Hadley v., 603

Mayor, &c., McMahon v., 642

Mayor, &c., v. Third Avenue

Railroad Company,

42

McMahon v. The Mayor, &c.,. 642

[blocks in formation]

Wagoner, Billington V.,...... 31 Walsh, Donnell v.,

43 Warner v. Lessler,

296 Wells, Buckley V.,

518 White v. Hicks,

383 White v. McNett,

371 Williams v. Nolan,..

161 Williams v. The People,

688 Wood, Ingallsbee v.,

577

Third Avenue Railroad Com

pany, Mayor, &c., V.,..... Tibbits, Chapman v.,

42 289

. . .

[ocr errors]

· CASES

DETERMINLD IN THE

COURT OF APPEALS

OF THE

STATE OF NEW YORK,

At the June Term, A. D. 1865.

TaE STATE OF MICHIGAN, Appellants, v. The Phenix BANK

OF THE CITY OF NEW YORK, Respondents.

[blocks in formation]

An award by a board of State auditors, obtained on an ex parte hearing, upon a

fictitious and groundless claim, may be impeached for fraud and imposition on the part of the claimant. Money paid under such an award may be recovered back on establishing the

fraud, but only to the extent that the State was damnified by the wrong.

APPEAL from the General Term of the Superior Court of the city of New York. The action was tried before the Hon. JOSEPH S. BOSWORTH, Chief Justice of that court, without a jury.

A judgment in favor of the plaintiffs was entered upon the report and findings of the judge for $35,603.74. This judgment was appealed to the General Term of the same court, which reversed the said judgment, and ordered a new trial, with costs to abide the event, from which an appeal is brought to this court, with stipulation that judgment be absolute if the judgment of the General Term be affirmed.

J. L. Jernegan, for the plaintiffs.
Chas. O'Conor, for the defendants.
TIFFANY-VOL. VI.

2

Opinion of the Court, per POTTER, J.

POTTER, J. A great proportion of the labor made necessary on the review of this voluminous case could have been avoided, and many of the questions so elaborately argued and spread out upon the briefs of counsel dispensed with, if the system of practice now established as the law in regard to a review of such cases had been pursued.

The judge at Special Term found specifically the facts severally, and his conclusions of law severally and separately from the facts, as required by the Code ($ 267). The defendants filed their exceptions in due form, to both the findings of fact and to the conclusions of law. The General Term reversed the judgment, and ordered a new trial. By $ 268 of the Code, the judgment of the Special Term shall not be deemed to have been reversed on questions of fact, unless 80 stated in the judgment of reversal. It was not so stated in the judgment of reversal in this case. This court, therefore, upon this review, are to take the facts as found by the judge at Special Term to be true. We so held in the case of Crocker v. Crocker, decided at the last term of this court, and so the statute directs. All that portion of the argument upon the one side to impair the force and correctness of the facts found, and upon the other side to sustain them, are consequently superfluous. The duty of this court, then, is to determine whether the conclusions of law drawn from the facts as found by the judge are sound.

In the discussion of the law, it will of course be necessary to deal at some length with such of those facts as are controlling, each of which will be best presented as corresponding with the conclusions of law to which it relates. It is undisputed that the defendants, in March, 1858, advanced to one Norton, who held at the time an official financial position in the State of Michigan, two drafts, amounting to $16,400, one on the Farmers' and Mechanics' Bank of Detroit for $8,500, the other on the Bank of River Raisin, Monroe, for $7,900. These advances were made on the request of Stevens T. Mason, who was then governor of Michigan, and on his promise, in effect, that they should be paid from anticipated funds to be raised for said State upon the bonds of said

« PreviousContinue »