15 Barb. 371 | N.Y. Sup. Ct. | 1853
This case comes before me on a demurrer to the complaint. The grounds of demurrer are substantially as follows: 1st. That there is a defect of parties plaintiffs, inasmuch as the contract upon which the suit was instituted was made between the defendants and the plaintiffs, Horner and "Grant, and one Cobb; and the complaint does not sufficiently set forth a transfer of Cobb’s interest, nor an acquisition of any interest by the plaintiff, Ludlum; and 2d. That it does not appear affirmatively, that the original contract which was assigned to
Besides, it is at least doubtful whether the objection of a noncompliance with a statutory provision in a case of this kind, is not confined to the parties to the assailable transaction. They can, if they choose, make it practically effectual; and then' it must be valid as to others who may deal with them in reference to the same subject matter. This is, of course, applicable only
The principal ground of demurrer, and that upon which the learned senior counsel for the defendants placed his main reliance, is, that it does not appear that the original contract was made pursuant to the statute, but the contrary. The complaint does not set forth that the preliminary steps required by the statute for the regulation of our county and state prisons, passed December 14, 1847, to make that contract effectual, were taken, and I am inclined to think that it was made in violation of the 77th section of that act. It is provided in that section that whenever the inspector of a state prison shall direct a contract to be made for the labor of the convicts, a public notice shall be given specifying, among other things, the length of time for which their services are to be let, not exceeding five years, and the number of convicts to which the contracts are to be limited. (Laws of 1847, p. 615.) This plainly infers that-the length of time for which the contract is to run, and the number of the convicts to be employed, shall be definite, and specified in the contract; but in this instance neither the time nor the number was fixed. The time was from three to five years, and the number .of convicts was from fifty to one hundred. In both cases the minimum and maximum are specified, but that is only limiting a discretion to fix a thing, not specifying the thing itself.
These objections must have been fatal if the action had been upon the original contract and upon a consideration wholly unexecuted. Undoubtedly when one claims a right, not at common law, but wholly of statutory creation, he must set forth the prescribed preliminaries. But this is not an action founded on a statutory contract. The assignment of such contract is the consideration of the defendant’s engagement; and possibly its entire and partial enjoyment, or the actual means of enjoying it, if placed within the attainment of the defendants, may be the requisite preliminaries to any obligation to pay the money for the recovery of which the action was brought, blow when a contract, whether statutory or otherwise, is the mere subject
There can be no substantial reason for exacting it, but the contrary. Both parties by making it the subject of the new engagement impliedly admit its validity* If it should turn out eventually to be inoperative from facts known to the assignor and by him concealed from the assignee, that might operate as an entire or partial defense in an action for the consideration, but that should be averred on the part of the defendants* When, however, a contract is known by both parties to be imperfect at the time of an assignment, and the assignee, notwithstanding that, takes it, and subsequently derives some benefit from it, he has no defense against paying at least a part of the consideration; and if it should be or might be, (but from the assignee’s neglect or opposition,) fully performed, the defect would not constitute any defense whatever. How the defect in this contract was apparent upon what was stated in the assignment to which the defendants were parties ; and it resulted from the law, of which they could not plead ignorance. It is stated too, in the complaint, and is admitted by the demurrer, that the defendants, since the making of the assignment, had continued to carry on the business therein mentioned, in the Sing Sing prison, under the original contract, and to have the benefit of all the labor done in pursuance thereof, until the commencement of the suit, and that they still continue to carry on the said business and to have the benefit and advantage of said labor. Here then it appears that the plaintiffs assigned to the defendants, a contract imperfect, as described in the assignment, have agreed to pay a sum of money in consideration of that, and of some property which it transferred, and have had the full anticipated benefit from such assignment, and now contend that they are not obligated to pay the stipulated consideration money. I am satisfied, notwithstanding the Very ingenious ar
S. B. Strong, Justice.]
There must be judgment for the plaintiffs on the demurrer, with liberty to the defendants to answer, on the payment of the costs of the demurrer,