MUNICIPAL CORPORATIONS—Continued.
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 certificates as to the
necessity of such work, and the common council of the city had not author-
ized 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. Id.
FOR THEIR OWN CONTRACTS. When a lawful contract has been made with a
municipal corporation, and it has been fulfilled by the creditor, he is entitled
by implication of law to a reasonable compensation, in the absence of any
specific agreement as to price or rate of payment. Harlem Gas Light Co. v.
Mayor, &c., New York, 309.
A contract for gas, to light the public buildings and streets of the city of New
York, is within the authority of the municipal corporation. Id.
WHEN NEED NOT ADVERTISE, ETC. Where the agreement is for the use, by the
city, of gas belonging to a manufacturer, who is in the enjoyment of a prac-
tical legislative monopoly, the case is not within the proviso of the city
charter, which requires contracts for supplies, involving expenditures beyond
$250, to be made in writing with the lowest bidder, on an advertisement
for sealed proposals. (1 Sess. Laws 1857, 886, § 38.) Id.
FROM YEAR TO YEAR. A contract prescribing the rate of compensation for the
use of gas during a particular year, is not in its nature an agreement
running from year to year, and cannot be held to fix the measure of com.
pensation for subsequent use. Id.
IMPLIED AUTHORITY OF. A corporation is not limited to the exercise of the
powers specifically granted, but possesses, in addition, all such powers as
are either necessarily incident to those specified, or essential to the purposes
and objects of its corporate existence. Le Couteulx v. City of Buffalo, 333.
The common council of the city of Buffalo have full and ample power to take
and hold any property transferred to them for the use of common schools
in said city. Id.
By the term "common schools," is to be understood such schools as are common
or open to all, in a certain locality. Per DAVIES, J. Id.
Prior to 1851, the defendant had power, under the laws of the State, to estab-
lish and maintain free schools within its limits, and could legally take and
hold real estate for such purpose. Id.
POWER OF COMMON COUNCIL TO REVIEW THEIR OWN CANVASS, ETC. The common
council of the city of Albany, having once legally canvassed the votes
returned for the election of mayor of said city, have exhausted their power
over that subject, and cannot afterwards reverse their decision by making
a different determination. Hadley v. Mayor of Albany, 603.
Where the law has committed to the common council the duty of canvassing
the returns, and determining the result of an election from them, and the
council have performed that duty and made their determination, the question
as to the effect of the returns made is not open for determination by a jury
in an action in which the title of the officer to his office comes up collater-
ally.
AUTHORITY TO REQUIRE RAILROAD COMPANIES TO PAY A LICENSE FEE, ETC. The
provisions of the ordinance of the common council of the city of New York,
passed December 31, 1858, requiring city railroad companies to pay a
license fee of fifty dollars for each car run by them, or become liable to a
penalty, &c., is not an exercise of the power of municipal regulation,
reserved by the terms of the grant to those companies.
A penalty cannot be imposed for non-compliance with an illegal action. Mayor
New York v. Third Avenue Railroad Company, 42.
STOCKHOLDERS' INTEREST IN, ARE TAXABLE, ETC. See TAXES, 161.
The Mohawk river is a navigable stream; and the title to the bed of the river
is in the people of the State. People ex rel. Loomis v. Canal Appraisers, 461.
Riparian owners along the stream are not entitled to damages for any diversion
or use of the waters of the Mohawk by the State. Id.
It seems, that the common law rules, determining what streams are navigable,
are not applicable in this country. Id.
The subject of navigable streams elaborately discussed, per DAVIES, J. Id.
LIABILITY OF. Where the executrix of the estate of N. E. received as collateral
security the assignment of a mortgage held in trust, for the payment of a
personal debt of the trustee due to the estate, for which assignment there
was no legal consideration, and the executrix collected the moneys due on
such mortgage and distributed the same among the next of kin and lega-
tees of said estate, in an action brought by cestui que trusts against such
next of kin and legatees, to recover the moneys thus distributed to them as
proceeds of said mortgage, Held, That such next of kin and legatees were
liable therefor. Green v. Givan, 343.
That the rights of the parties were not altered by the fact that the defendants
received, at the same time, other moneys than those arising out of such
mortgage. Id.
That receiving the plaintiff's money without giving value for it, they are liable
therefor, though mixed with other money belonging to them at the time of
receiving it. Id.
EVIDENCE. The answer of the executrix admitting the receipt of the money upon
such mortgage and thus distributed, is admissible, and binding upon the
defendants made parties after her death by bill of revivor and supplement.
Id.
OF PLAINTIFFS, HOW AVAILABLE. But for defects arising from nonjoinder of
plaintiffs, advantage can only be taken, under the Code, by answer or
demurrer.
In case of such defect, an answer upon the merits waives all objection on that
account. Donnell v. Walsh, 43.
OCCUPANCY UNDER CLAIM OF RIGHT.
The practical location of a division line by adjoining proprietors, on the faith of
which valuable improvements have been made, concludes them and their
successors in interest. Laverty v. Moore, 658.
The rights of riparian owners are usually controlled by the relative extent of
water frontage; but these are subject, like other rights, to enlargement or
abridgement by contract. Id.
More occupancy of a lot, under a claim of right, in virtue of a grant which
does not embrace it, and made by parties who neither owned nor claimed
it, is not enough to defeat a transfer of title on the ground of adverse pos-
session at the date of the conveyance. Id.
OF MUNICIPAL COrporation actinG WITHOUT AUTHORITY. Where municipal offi-
cers 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 con-
tract. Donovan v. Mayor of New York, 291.
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 author-
ized 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. Id.
PAROL DECLARATION.
See APPOINTMENT, 383.
TO CONTRACT ENTITLED TO ALL REMEDIES, ETC. Where the consideration of a
bond proceeds from a third party, who is acting in the name, and for the
benefit of the obligee thereof, such obligee is a party to the contract in
such a sense as to be entitled to the proper remedies to reform or to collect
the same. Nevius v. Dunlap, 676.
To entitle a party to a decree of a court of equity reforming a written instru-
ment, he must show first, a plain mistake clearly made out by satisfactory
proofs. Id.
He must also show that the part omitted or inserted in the instrument, was
omitted or inserted contrary to the intent of both parties, and under a
mutual mistake. Id.
OWNERS OF VESSELS, in actions for freight, &c., are partners, and should be
joined. Donnell v. Walsh, 43.
BUT ADVANTAGE OF OMISSION to join them, must be taken by answer or demur-
rer. Id.
DEFENSE OF. In an action upon a promissory note, held by the plaintiffs as
collateral security, where the defendant sets up in his answer the defense
of payment, he may give in evidence any facts, which in law, amounts to
a satisfaction of said note, as against such plaintiffs. Farmers' & Citizens'
Bank v. Sherman, 69.
EVIDENCE UNDER PLEA OF PAYMENT. Where such note, held as collateral secur-
ity by the plaintiffs, had been paid to the plaintiffs by the payee thereof,
by the delivery of lumber of sufficient value to satisfy the same, which
lumber was delivered to, and accepted by, the plaintiff's in pursuance of an
agreement that the payee might withdraw any of the collaterals held by
the plaintiffs to the amount of lumber delivered to them, and he designated
such note to be withdrawn, Held, that under the plea of payment, the
defendant might give evidence of such agreement and the transactions
under it, and that when proved the plea of payment was sustained. Id.
CONTRACT AMOUNTING TO PAYMENT. Held, also, that the note having been given
for the accommodation of the payee, that such agreement and the trans-
actions under the same amounted to a payment of the note as between the
maker and the payee of the same. Id.
The provisions of the ordinance of the common council of the city of New
York, passed December 31, 1858, requiring city railroad companies to pay
a license fee of fifty dollars for each car run by them, or become liable to a
penalty, &c., is not an exercise of the power of municipal regulation,
reserved by the terms of the grant to those companies.
▲ penalty cannot be imposed for non-compliance with an illegal exaction.
Mayor, &c., v. Third Avenue R. R. Co., 42.
RUNNING ITS GATE. The forcibly and fraudulently passing any toll gate on any
turnpike or plank road in this State, is an offense by statute involving a
fixed pecuniary sum to the corporation whose franchise has been invaded.
The corporation whose gate is forcibly and fraudulently passed, or whose fran-
chise is invaded, is the corporation injured in the contemplation of the
statute. Monterey Plank Road v. Chamberlain, 46.
UNNECESSARY AVERMENTS NEED NOT BE PROVED, ETC. See GIFT, 581.
EFFECT OF, ETC. The practical location of a division line by adjoining proprietors,
on the faith of which valuable improvements have been made, concludes
them and their successors in interest. Laverty v. Moore, 658.
The rights of riparian owners are usually controlled by the relative extent of
water frontage; but these are subject, like other rights, to enlargement or
abridgement by contract. Id.
Mere occupancy of a lot, under a claim of right, in virtue of a grant which does
not embrace it, and made by parties who neither owned nor claimed it,
is not enough to defeat a transfer of title, on the ground of adverse pos-
session at the date of the conveyance. Id.
OF APPOINTMENT. A person entitled under a power of appointment, to dispose
of property by deed or will, may make such disposition by a proper instru-
ment, without inserting in it a reference to the power, if it otherwise
appear that the intention was to execute the power. White v. Hicks, 383.
But where the disposition was by will, held, that a parol declaration, by the
testator, of an intention to execute the power, was not competent evidence
of such intention. Id.
It is, however, competent for the court to compare the dispositions of the will
with the testator's own property, and to deduce therefrom an intention to
embrace in his testamentary gifts the subject he was entitled by the power
to dispose of. Id.
Accordingly, where a married woman had power, under the will of her father,
to dispose by will of the principal of a sum of $50,000, the interest of
which was given to her for life, to her husband or otherwise, and she made
her will, without referring to the power, by which she bequeathed to her
husband $50,000, and to other legatees pecuniary legacies amounting to
$32,000, and a general residue, and it appeared that her own property
amounted to only $54.000, and that she well knew the amount of her
estate, and executed the will when she knew herself to be in extremis;
held, that the power to dispose of the $50,000 was validly executed by the
gift of $50,000 to her husband. Id.
The English cases, decided since the American revolution, by which it was
established that the amount of the testator's property could not be inquired
into to show an intention to execute a power of appointment, are not to be
followed in this State, especially as the rule has been disapproved of by
English judges, and has recently been abrogated by act of parliament. Id.
EXCEPTIONS TO FINDING OF REFEREE. It seems that an exception to the finding
of the referee in general terms, as that "the plaintiff excepts to each and
every one of the decisions and rulings of the referee against the plaintiff on
the trial of this action, severally, separately and distinctively," amounts to
nothing. Newell v. Doty, 83.
WHAT TO APPEAR. Where the consideration of a bond proceeds from a third
party, who is acting in the name, and for the benefit of the obligee thereof,
such obligee is a party to the contract in such a sense as to be entitled to
the proper remedies to reform or to collect the same. Nevius v. Dunlap, 676.
To entitle a party to a decree of a court of equity reforming a written instru-
ment, he must show first, a plain mistake clearly made out by satisfactory
proofs. Id.
He must also show that the part omitted or inserted in the instrument, was
omitted or inserted contrary to the intent of both parties, and under a
mutual mistake. Id.
FORECLOSURE SALE PASSES WHAT TITLE. See MORTGAGE, 658.
WHEN CHARGEABLE AND HOW SHOWN. Where the wife conveys away a part of
her real estate owned in her own right, and takes back in part payment
of the consideration thereof bonds and mortgages of her grantee, which
she afterwards sells and assigns by deed with a covenant of guaranty by
herself and husband, that the money payable thereby is collectible; in an
action on such covenant of guaranty against the husband and wife for
breach of such covenant, held, that to enable the plaintiff to maintain this
action and charge the unpaid balance upon the separate estate of the wife,
he is bound to show, either that there was an intention to charge such
separate estate in the contract of sale and guaranty by the wife, or that the
consideration obtained upon the sale, etc., was for the direct benefit of her
separate estate. White v. McNett, 371.
A vendee, who has fulfilled his contract of purchase, may obtain a decree for
specific performance against parties, who, with notice of his equities, suc-
ceeded to the interest of the vendor. Laverty v. Moore, 658.
CONSTRUCTION OF, in respect to taxation, etc. See TAXES AND TAXATION, 161.
LAWS OF CONGRESS. Id.
AUTHORITY OF EITHER HOUSE TO RECALL A BILL, ETC. See LEGISLATURE, 269.
IN NATIONAL BANKS. Interest therein liable to State taxation. See TAXES, 161.
|