23 N.Y.S. 888 | New York Court of Common Pleas | 1893
Lead Opinion
Pursuant to a resolution adopted by the common council and approved by the mayor on the 11th day of February, 1861, the corporation of the city of New York, on the 26th day of February, 1861, entered into a contract in writing with Andrew •J. Hackley by the terms of which he undertook to clean and keep clean “all the paved streets, avenues, lanes, alleys, and all gutters, wharves, piers, and heads of slips in the city of New York,” as therein particularly provided, for a period of five years from the day of the date of the contract; and the corporation agreed to pay Mm for such services an annual sum of $279,000 in semimontMy installments. The contract also expressly permitted Hackley to dispose of “all ashes, garbage, rubbish, and sweepings of every Mnd” for his own benefit. Immediately after it was awarded and entered into, Hackley conveyed a quarter interest in the contract each to Lewis Davis, Anthony S. Hope, and Thomas Hope, and on the 16th day of May, 1863, when further performance of the work was prevented by the municipal authorities, Hackley’s entire original interest had by mesne assignments been transferred, one-eighth to Charles Devlin, one-half to Samuel Donaldson, one-quarter to Charles D. Blish, and one-eighth to Tilly R. Pratt. Hackley and his assignees at once entered upon the' performance of the work, and so continued until the 16th day of May, 1863, when, as before stated, the officers of the municipal government refused to permit them to proceed, and assumed control of the street cleaning, assigning as the ground for so doing that Hackley and his assignees had failed to carry out the contract on their part. At tMs time there remained due and unpaid from the corporation five semimonth
It is now urged on behalf of the defendant (appellant) the mayor, etc., that this action is for common-law relief only; that plaintiff’s rights as assignee of part of the several demands made against it under the Hackley contract are of equitable cognizance, enforceable only by an action in equity; and hence that plaintiff was not, nor is his administrator, entitled to maintain this action. We do not differ from the view taken by the general term of this court on a former appeal, and concur that the only relief sought by plaintiff against the defendant the mayor, etc., at the inception of the action was for the enforcement of common-law demands, (Devlin v. Mayor, etc., 54 How. Pr. 50-58,) and are nevertheless of the opinion that the action was properly brought. That a part owner of one entire demand may recover his share from the debtor in assumpsit was ruled in Risley v. Bank, 83 N. Y. 318. Under our system of remedial justice introduced by the adoption of the Code of Procedure, both legal and equitable relief may be administered in the same action. It matters not that the complaint prays judgment
Next defendant (appellant) the mayor, etc., urges that, though plaintiff’s right to recover in this action upon sufficient proof be conceded, the judgment is notwithstanding erroneous, in so far as it awards affirmative relief against defendant (appellant) and in favor of its codefendants; that, assuming the action to be controlled by the provisions of the Code of Procedure which was in force at the time of its commencement, section 274 does not authorize such a judgment; and, if the provisions of the Code of Civil Procedure (section 1204) are held to apply, it appears affirmatively from the evidence that the defendants to whom the relief was awarded did not comply with the provisions of section 521, which require as a condition to the award of affirmative relief to a defendant against a codefendant that a copy of the answer of the defendant seeking the relief be served upon the defendant against whom it is sought at least 20 days before the trial. Whatever merit, however, this contention might otherwise have presented is entirely dispelled in the instance of the judgment appealed from, because the defendant (appellant) elected to proceed to trial without objection under an order referring all the issues for trial to a referee, which, by adontion of a former like order, specifically directed the latter, if
It appears that after this action was commenced Charles Devlin instituted another action in the supreme court against the same defendants for an accounting by Anthony S. Hope, as trustee of the HacMey contract, for moneys received by him, and to have the ultimate rights of the parties to those moneys and the moneys and damages recoverable from the corporation determined; that in the supreme court action Cyrus Curtiss was appointed receiver of such moneys and damages, with power to sue therefor; that this power was subsequently revoked, and a suit commenced by the receiver dismissed for want of prosecution; that the supreme court action is pending undetermined, and the order appointing a receiver remains in force; but that Mr. Curtiss is deceased, and that his successor has not been appointed. In view of the foregoing, defendant {appellant) urges that neither the plaintiff nor its codefendants can recover in this action, because the title to any claim for moneys •earned and damages for breach of contract against the corporation under the Hackley contract was vested in Mr. Curtiss as receiver, and upon his death devolved upon the supreme court, pending the appointment of his successor. In support of its contention counsel for defendant (appellant) cite cases which affect the rights •of receivers appointed of the property of judgment debtors in supplementary proceedings. Those cases, however, are readily distinguishable. A receiver appointed of the property of a judgment debtor is invested with tiüe by express provision of law. Code Proc. § 298; Code Civil Proc. § 2468. Mr. Curtiss’ appointment was pendente lite only. 27o transfer by act of the parties appears to have been made to him. A receiver so appointed acquires no title to the property in dispute. His right is one of possession merely, as an officer of the court, and the title remains precisely where it was when he was appointed. Keeney v. Insurance Co., 71 N. Y. 396; Decker v. Gardner, 124 N. Y. 335, 26 N. E. Rep. 814. True, the parties may be under a disability by reason of the injunction
Prom the evidence introduced in support of defendant’s (appellant’s) plea that the Hackley contract was secured by means of bribery, and that it is therefore void on grounds of public policy, we can discover no such preponderance as would justify our reversal of the referee’s finding that there was no bribery. It can serve no useful purpose to discuss the evidence in detail, since, in any event, the plea is untenable. That Thomas Hope gave Hackley $40,000, and that the latter, acting upon the suggestion contained in an anonymous letter, deposited the sum in a paper package, upon a table in a vacant room adjoining the assembly chamber of the common council, and to which persons other than Hackley and the members of the common council had equal access, unquestionably shows, if we assume the truth of the confession of a self-impeached witness, that Hackley not only intended to bribe, but that he actually parted with a large sum of money for that purpose to some unknown person; but, in view of the sworn denial of all but two members of the common council, who were deceased at the time of the trial of this action, and whose credibility is unimpeached, that they knew of Hackley’s act, or that they, or some one for them, ever received any part of the sum deposited by him, and in the absence of any evidence from which their knowledge of Hackley’s act, or their receipt of any portion of the money so deposited by him, may be reasonably inferred, it is the merest conjecture to say that any member of the common council was bribed, and thus to cover these public officials with infamy, and that without according them as much as a trial of the charge. There have been instances where public officials have succumbed to corrupt influences in the performance of duty, and such may again occur. But are we therefore justified in placing them all under the ban of suspicion and to convict them upon accusation only? Is it a fair inference from the fact that one person was known to give the bribe that he found even one of the officials who were concerned in the award of the contract ready to take it? To do so would be to argue and draw
Aside from the insufficiency of the evidence, and as already intimated, we are of the opinion that the plea that the contract was-void because tainted with bribery is ineffectual. No doubt a promise made to induce another to act corruptly in the public service is absolutely void and of no effect on grounds of public policy. But in such a case the parties to the contract are in pari delicto. Not so with a contract entered into by a public official on behalf of the state or a municipal body, and which in itself involves only the performance of lawful acts, and the observance of public affairs, though it was secured by the other contracting party through corrupt means. In such a case the official is but the agent of one of the contracting parties. The parties to the contract are not in pari delicto, and, as in other instances of contracts induced by fraud, the contract is not void, but voidable at the election of the party-defrauded. Cobb v. Hatfield, 46 N. Y. 533; Gould v. Bank, 86 N. Y. 75. Now, assuming that Hackley did secure the contract award
We are, however, of the opinon that the judgment must be reversed upon other- grounds. The measure of the damages which are recoverable in this action against the defendant corporation for breach of its contract is the difference between the amount it agreed to pay, to which should be added the amount of profits which Hackley or his assignees would have derived from the sale of ashes, garbage, manure, etc., and the- actual cost to be incurred in completing the work remaining unperformed at the time of the breach. Devlin v. Mayor, etc., 63 N. Y. 8. Turning to the evidence upon which plaintiff and the defendants other than the mayor, etc., rely for the amount of their recovery, it will be found to consist wholly of the testimony of Charles D. Blish, Samuel Donaldson, William H. Adams, and John Satterlee, the several" persons who at different times during its progress had charge of the work under the contract. Heither of these witnesses testified even remotely to the cost of the work, or the actual amount of ashes, garbage, manure, etc., yielded from performance during the several seasons of the year; and so we are not afforded any basis for computing the amount of . damages. - In each instance the witness was uermitted, against the repeated objection of counsel for the defendant, (appellant,) to testify directly to his estimate and opinion as to the value of the Hackley contract, and the probable amount of profit which it would have yielded to the contractor or his assignees during its unexpired time. This kind of testimony has so often been condemned by the - courts as incompetent that references to particular cases seems un
At the time of the commencement of this action chapter 379 of the Laws of 1860 continued in force. Section 2 thereof provided that no action or special proceeding should be prosecuted or maintained against the mayor, etc., of Xew York unless the complaint or necessary moving papers alleged that at least 20 days had elapsed since the claim or claims upon which the action or special proceeding is founded be presented to the comptroller for adjustment, and not then unless the complaint or moving papers further alleged that upon a second demand in writing upon the comptroller he had neglected or refused to make an adjustment or payment thereof. This requirement constituted a condition precedent to plaintiff’s right to institute and maintain the action, and noncompliance therewith, if still in force, and applicable to the case at bar, would be fatal. Reining v. City of Buffalo, 102 N. Y. 308, 6 N. E. Rep. 792. Objection to the insufficiency of the complaint because of its omission to allege the several demands upon the comptroller and his neglect or refusal to adjust or pay the claims was raised by counsel for the defendant (appellant) at the opening of the trial, and again when the introduction of evidence was closed, by motions for dismissal, and to their denial due exception was taken. A further motion to dismiss the complaint was made for insufficiency of the evidence to sustain the several causes of action, it not appearing that any demand sufficient to satisfy the requirement of the statute was in fact made. This was likewise denied, and due exception taken to the ruling. We do not, however, regard either the omission to make the demand or the omission to allege the demand in the complaint as jurisdictional, (Russell v. Mayor, etc., 1 Daly, 263; Sheel v. City of Appleton, 49 Wis. 125, 5 N. W. Rep. 27,) and think that, like other statutory provisions which are made for the benefit of a party to the action, both the demand and its nonallegation may be waived, (Roberts v. Baumgarten, 126 N. Y. 336, 27 N. E. Rep. 470; Sherman v. McKeon, 38 N. Y. 274; Shutte v. Thompson, 15 Wall. 151,) but are unable to accede to the proposition of counsel for the respondents
It is unnecessary to discuss the question of respondents’ rights to the allowance of interest upon the damages recoverable by them for defendant’s (appellant’s) breach of contract, since, upon the exceptions taken to the admission of incompetent evidence, and already noticed, the judgment must, in any event, in respect to those damages, be reversed. But we incline to the opinion that the interest was properly awarded. Wilson v. City of Troy, 135 N. Y. 96, 32 N. E. Rep. 44; 1 Suth. Dam. p. 113, § 63; Dana v. Fiedler, 12 N. Y. 40, 50.
Our conclusion is that the judgment appealed from should be reversed, and a new trial ordered, with costs to the appellant (defendant) against the respondents to abide the event, unless the respondents will stipulate to waive any claim against defendant (appellant) for breach of contract, inclusive of the interest thereon, in which event the judgment, in so far as it awards recovery for moneys earned up to May 16, 1863, is affirmed, but without costs to either party as against the other.
Judgment reversed, and new trial ordered, with costs to defendant (appellant) to abide the event, unless respondents stipulate to waive any claim against defendant (appellant) for damages for breach of contract, inclusive of the interest thereon, in which event the judgment, in so far as it awards recovery for moneys
BOOKSTAVER, J., concurs.
Dissenting Opinion
(dissenting.) After a chequered career of nearly 30 years’ controversy in the courts, the case has terminated at last in a judgment in favor of the respondents for a sum very little short of a million dollars. Except under compulsion of obvious and essential error, I cannot consent, by reversal of the judgment, to start the cause again on a course of doubtful and indefinite litigation, from which, by the death and disappearance of witnesses, it is not likely to issue in a result as consistent with the interests of justice as the conclusion now before us. So long ago as 1875 the court of appeals settled the principles upon which, if the respondents be entitled to a recovery, the amount of their indemnity should be adjusted, namely, a credit for the money actually earned in performance of the contract, and an allowance for the money they would have earned but for the wrongful repudiation of the contract. In conformity with this decision, the referee determined the sum for which he directed judgment. That the appellant established no defense to the action, and that the respondents were entitled to a judgment, is a result from which, in the opinion of my brethren, there is no possible escape. But, while affirming the judgment in so far as it awards compensation to the respondents for actual earnings under the contract, they reverse it as to the allowance of damages for breach of the contract by the appellant; and they subject the respondents to the hard alternative of renouncing the substantial benefit of their judgment, or else submitting to another trial of their claim under circumstances which preclude the possibility of establishing it by attainable evidence. Ordinarily, upon reversal of a judgment, whether for error in law or in fact, the respondent, if he have a case, is at no loss to repair the defect which caused his miscarriage; but as, in the present instance, the respondents are defeated for lack of evidence, and as by lapse of time other evidence is by necessity unavailable, the new trial awarded them is obviously an illusory advantage. And yet, if the judgment be invalid, we have no choice but to reverse it. The measure of damages to the respondents for the breach of the contract by the appellant “is the difference between the contract price and what it would have cost to perform the contract.” Devlin v. Mayor, etc., 63 N. Y. 9. It is not denied that the referee duly observed the rule of damages thus authoritatively propounded, but the position in the prevailing opinion is that his conclusion as to the amount of damages is without the support of legal evidence. Conceding, for argument, that evidence of opinion and speculation by the witnesses as to the amount of damages be in the case, still the error in its admission is obviated by the explicit assurance of the referee that he excluded it from consideration. Only prejudicial error invalidates a judgment, and evidence disregarded cannot possibly prej
The judgment should be affirmed, with costs.