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defense to an action for the balance of the contract price,-the former, in case of a substantial failure to perform his contract on the part of the plaintiff; the latter, in case of minor defects of performance, (including delay in the completion of the work,) for which compensation may be rendered in damages. Both of these questions were therefore issues to be litigated in this case, and both were questions for the jury. The defendant's motions for a nonsuit and for the direction of a verdict were therefore properly denied; but for the same reasons it was error to exclude evidence of defects in construction, other than that one specified in the certificate of the architect, and the defendant's exceptions to rulings of that character were well taken.
We think, too, that some of the defendant's exceptions to the charge of the court point to error in the submission of the case to the jury, which must be fatal to the verdict. The question of damages by delay in the completion of the work was litigated, and was submitted to the jury under the instruction that if the defendant permitted the plaintiff to go on with the work after the time limited by the contract, without expressing his disapproval and dissatisfaction, he thereby waived the damages for such delay, which he might otherwise have claimed. This, cf course, was error, arising, probably, from a momentary confusion of the waiver of damages with the waiver of forfeiture, as a complete defense, by reason of delay; and we see no evidence that it did not mislead the jury, to the prejudice of the defendant, on the question of damages.
Another exception was well taken to the instruction given to the jury in respect to what might constitute a substantial failure of performance of his contract on the part of the plaintiff, to the effect, viz. that no defect of construction could be regarded as substantial unless it was one which ran through the entire structure, and which could not be remedied without disturbing or interfering with the main building. For the errors indicated the judgment entered on the verdict of the jury must be reversed, and a new trial may be had, in which it is to be hoped that the questions for the jury here pointed out may be fully tried, and an end may be reached of an already protracted litigation.
Judgment and order appealed from reversed, and a new trial granted, with costs to abide the event. All concur.
(6 Misc. Rep. 185.)
PEOPLE ex rel. SCOTT et al. v. WILLIAMS et al. (Supreme Court, Special Term, Monroe County. December, 1893.) TAXATION-EXEMPTION-PROPERTY PURCHASED WITH PENSION MONEY.
Under Code Civil Proc. $ 1393, providing that a pension granted by the United States shall be exempted from seizure for nonpayment of taxes, property purchased by the widow of a soldier with pension money received by her from the government is exempt. Certiorari by Mrs. Scott and others to review the action of defend. ants, as assessors of the town of Seneca Falls, in assessing certain real estate for taxation.
H. A. Carmer and S. H. Salisbury, for relators
BRADLEY, J. The question presented is whether or not the real property in question is exempt from taxation. The view taken by the assessors was that it is not, and they declined to remove the assessment. It must, for the purpose of the inquiry, be assumed that the property was purchased solely with the pension money received by the relators, respectively, from the federal government. The claim for exemption is founded mainly upon the statute which provides that the pay and bounty of a private in the military service of the United States, a “pension or other reward beretofore or here. after granted by the United States,” are “exempt from levy and sale by virtue of an execution, and from seizure for nonpayment of taxes, or in any other legal proceeding.” Code Civil Proc. § 1393. The relief of property from the burden of taxation, when granted, is a personal privilege of the person in view, (Mickes v. Tousley, 1 Cow. 114;) and, to render the exemption effectual in behalf of the relators, they must clearly come within the legislatíve purpose, as repre. sented by the statute. It is quite evident that in exempting certain property from seizure for nonpayment of taxes it was within the contemplation of the statute to embrace also the assessment of it for taxes; and this further appears by the statute which provides that "all property exempted by law from execution” shall be exempt from taxation. 1 Rev. St. p. 388, § 4, subd. 9. The provision be. fore mentioned of the Code does not, in terms, provide that the exemption is applicable to the property in which the pension may be invested by the pensioner. But it is held that, to effectuate the purpose of the statute, the exemption is extended so as to embrace such property of the pensioner, and that such is the construction to which it is entitled. Bank v. Carpenter, 119 N. Y. 550, 23 N. E. 1108. It is, however, with much force, urged by the learned counsel for the defendants that the provisions of section 1393 were intended solely for the benefit of the persons who rendered service for the government, and therefore do not inure to the benefit of the persons who receive the pension as a mere gratuity from the govern. ment, and not by way of reward for their services; and reference is made to the word “reward” in that section as one of such limita. tion or qualification of the application of its exempting provisions as to exclude the relators from the benefit of them. By reference to the statutes of the United States relating to invalid pensioners, (Rev. St. U. S. $$ 4692, 4693,) no distinction is observed between them and those who may succeed in the right to receive pensions in respect to their relation as such to the government. The provision on the subject is that "if any person embraced within the provi. sions of sections 4692 and 4693 has died since the 4th day of March, 1861, or hereafter dies by reason of any wound, injury or disease which, under the conditions and limitations of such sections, would have entitled him to an invalid pension had he been disabled, his widow
shall be entitled to receive the same pension as the husband
would have been entitled to had he been
totally disabled, to commence from the death of the husband," (Rev. St. U. S. § 4702;) and that the widow shall be entitled to any accrued pension unpaid at the time of the husband's death, and that it shall not be considered as any part of the assets of his estate, nor liable to application to the payment of his debts, but shall inure to the sole and exclusive benefit of the widow, etc., (Rev. St. U. S. $ 4718.) It is evident that while the pension given to the person who, in consequence of his military service in the army of the United States, had suffered some physical disability, is in some sense a reward for service, it is also given, by reason of such disability, to contribute to the support of him and his family, if he has one. And so may the pension to the widow, who was dependent upon him for support, or entitled to the benefit of his support, be treated as granted to her for reasons characterized by substantially the same consideration as those applicable to the husband if he had lived and taken it. Her claim to pension is founded upon his military service and physical disability, and its allowance to her is the result of both. No distinction between them in their relation as pensioners, and in their privileges as such, is observed in the statute, which provides that “no sum of money due, or to become due, to any pensioner shall be liable to attachment, levy or seizure by or under any legal or equitable process whatever, whether the same remains with the pension office or any officer or agent thereof, or is in course of transmission to the pensioner entitled thereto, but shall inure wholly to the benefit of such pensioner." Rev. St. U. S. § 4747. In some of the states it has been held (and such is the result of the more numerous decisions on the subject) that the exemption dependent upon: that section terminates when the pensioner has received his money, for the reason that by the terms of the federal statutes the money is protected against process only up to and during its transmission to him. But in some cases it has been held that the words "shall inure wholly to the benefit of the pensioner," in that section of the act of congress, have the effect to extend the exemption further; and in Iowa it was determined that those words were entitled to such construction as to exempt from legal process the property in which the pensioner invested his pension money. Crow v. Brown, 81. lowa, 344, 46 N. W. 993; Dean v. Clark, 81 Iowa, 753, 46 N. W. 995. It is unnecessary, in the present case, to consider the question whether the import of section 4747 of the United States Revised Statutes is such as to permit the liberal interpretation given to its provisions by the court in those cases. It is a general rule that a statute will be construed to grant the privilege of exemption of propcrty from taxation only when such legislative purpose plainly appears by its terms. Picard v. Railroad Co., 130 U. S. 637, 9 Sup. Ct. 640. A pension is in the nature of a gift, intended for the personal benefit of him who is, or those who are, beneficiaries of it. The purpose of the provisions of section 1393 of the Code evidently was to effectnate the purposes thus intended, so far as it could be accorplished by relieving it from the charge of process and taxa. tion; and, as has been held in the Carpenter Case, before cited, the exen ption not only relates to the pension money as such, but ex
tends to it in whatever property ít may be invested by the pensioner while it is retained by him. In referring to the Laws of 1864 (chap. ter 578, SS 4, 5) as the source of the section of the Code in questiun, it is urged that, in view of the provisions of the former, the latter cannot be deemed to have been intended to include the pensions of persons other than those who were in the military service of the United States. Such does not necessarily seem the logical inference of the enlargement, as made by the Code, of the provisions of the act of 1864. Its provisions referred to could not have been made applicable to any other than persons in the military service of the United States. But since the provisions were so enlarged as to embrace pensions within the exemption, and without expressing any restriction in respect to the persons entitled to its benefit, it is not seen in the import of the statute, as fairly indicated by its terms, or in its policy, that any discrimination between the husband and the widow, in their relation to the purpose of the exemptive privilege given by the provisions of section 1393 of the Code, was intended; and, in view of the object of the statute, the reason of its application to her is at least as significant as it could have been in his behalf. The apparent purpose of a pension to an invalid soldier was contri. bution to the support of him and his family dependent upon him, in case he had a family, and that to which his widow is entitled is only a continuation of the benefit in that respect which the husband had, or which he would have taken, for such purpose, if he had lived. These views lead to the conclusion that the relators are entitled to the same beneficial enjoyment of their pension, and by the statute in question are given the same protection in respect to it, that their husbands, if living, would have had, by way of exemption from process and taxation, and that the assessment complained of is illegal. The prayer of the petitioners is therefore granted; but, as it does not appear that the assessors were chargeable with gross negligence or bad faith in the matter, no costs are allowed. Certiorari granted.
(6 Misc. Rep. 404.)
STEARNS v. TEW et al.
(Supreme Court, Special Term, Erie County. January, 1894.)
MUNICIPAL CORPORATIONS-INSPECTORS OF PLUMBING.
A temporary injunction, granted in an action to restrain the payment of claim for services as an inspector of plumbing in a city, will not be disturbed where the affidavits read on the motion to dissolve leave in doubt whether the claimant received a proper certificate from the supervising board of plumbers, which, under Laws 1892, c. 602, is a prerequisite to assuming the duties of a plumbing inspector.
Action by Frank M. Stearns, as a taxpayer and citizen of the city of Jamestown, against Harvey W. Tew and the common council of said city of Jamestown, to prevent said common council from pay. ing, and said Tew from receiving, compensation as plumbing inspector. Defendant Tew moves to dissolve a temporary injunction. Denied.
A. C. Pickard, for plaintiff.
WARD, J. This is an action commenced about the 20th of No. vember last by Frank M. Stearns, taxpayer and citizen of the city of Jamestown, against the defendants, to prevent the common coun. cil from paying, and the defendant Tew from receiving, compensation as plumber inspector of the city of Jamestown, appointed pur. suant to chapter 602 of the Laws of 1892, for the reason that the appointment of the said Tew was illegal and void, and he had no right to the said office or to perform the duties thereof. A temporary injunction was obtained, which the defendant lew now moves to dissolve. He alleges that he, at the time of his appointment, was a citizen and actual 'resident of the city of Jamestown, such appointment having been made the 10th of November last by the board of health of the said city, and that he is a practical plumber, within the intention and meaning of section 7 of the aforesaid chapter 602; that he had submitted to a regular examination by the examining and supervising board of plumbers and plumbing of the said city for certificate as a master plumber; that he passed such examination, and received from such board a certificate as such master plumber, and now holds the same; that thereafter the said board granted to deponent a certificate as inspector of plumbing in the said city, which he now holds; that this certificate as master plumber was granted prior to his appointment as inspector of plumbing. These certificates are not set forth in the moving papers in haec verba, and I am not, therefore, able to see whether they complied with the statute. The plaintiff's replying affidavits give a statement of two of this examining board, and they depose without qualification that the defendant Tew applied for an employing plumber's certificate only, and as agent only, and was not, and neyer has been, granted a master plumber's certificate by the said board, but that they granted him a certificate, a copy of which is attached to their affidavit, and is as follows:
“The examining and supervising board of plumbers and plumbing of the city of Jamestown, N. Y., has examined Mr. Harvey W. Tew, No. 112 East Third street, Jamestown, N. Y., and the board hereby certify that he is competent to act as employing plumber."
These gentlemen further depose that no certificate other than this was granted prior to the commencement of this action to the defendant Tew; that after the commencement of the action three of the five members of the board executed a certificate to Tew as an inspector of plumbing for the city of Jamestown. The papers do not disclose the terms of this certificate, and I am therefore unable to discover whether it complies with the statute. By chapter 602 of the Laws of 1892 the legislature authorized the appointment in the city of Jamestown and other cities, by the mayors thereof, of a board for the examination of plumbers of such cities, to be known as the "Examining and Supervising Board of Plumbers and Plumbing.” The bcard should consist of five persons. This board was appointed for the city of Jamestown. Among the duties