The New York Herald Newspaper, June 17, 1874, Page 4

4 eA TPE a THE RING SUITS. Text of the Decision Delivered by Judge Allen. The Court of Appeals in Favor of the County Civil Suits, AN IMPORTANT DOCUMENT. The following ts the full text of the opinion of the Court of Appeals, delivered by Judge Allen, on the case submitted, of the People of the State of New York vs. James H. Ingersoll, impleaded, &c. It will be found that the judgment of the Court below is sustained—the majority of the Court poiding that action did not lie with the plaintiffs (she People of the State.of New York), but with the county of New York:— The history Of this action, or fragment only of which is presented oy the record before us, Das been peculiar, aud if the practice adopted is to ripen into a precedent may be regarded as unfor- tunate, Ordinarily & judgment aeiiberately given upon a question directiy in issue has been, and should be, regarded as the law of the particuiar case by Ober judges in subsequent stages of the ligation until reversed upon appeal. In nootuer way Can justice be duly administered or the decisions ol the courts command the respect of suitors and the puolic. cCondicting dectsions by diferent judges, resulting in flnal judgments in the same Acton, each carried out to its legitimate results, necessarily leads to contusion, and, in- duiged in to any great extent, will brug reproach upon the judicial system. VHE PRINCIPAL QUESTION, AND INDEED THE ONLY QUESTION nce that has as yet been presented to is as to the siatus of the plaintiffs and their right to maintain the action, That was first presented by toe demurrer o! the defendant first served with process, and the decision was for the plaintufs, overrulmg the demurrer at Special Term, affirmed at General Term, the three | Justices sustaining their respective views in well ed and elaborate written opin- result Was acquiesced in by enhdant who answered over, and the ac- or trial upon the issues of tact joined ereaer, Uvon the motion of the pres- lant, about one-third of the complaint > another judge, stricken Out as “ir- jundant,” the allegations being 1e deieudant, and beld by the Court al either to the right of the plamtiffs or Vilty Of the defendants, in respect to the oF action stated, To tue complaint thus ex- pu. gated avd pruned of what was regarded by the court beloW a superfluous and redundant state- luents, the present defendant demurred, and had judment both at Special and Geueral Term, upon the ground that the plaintils had no standing in court or right to maintain the action in re- spect to the matters and causes alleged. nus two conficting decisions have beeu given and are now operative, under one of wulen the plaintiffs, having a judgment affirming their rignt to maintain the action, the parties have put Luemselves upon the country; from the other Lhe present a;peal has been taken. The precise question presented by this appeal may—t! the mat- ter stricken out by the Court upon the application of the present deiendant was, in fact, “irrelevant and redundant,” in no Way affecting the cause of action or Ue status of the plaintif—s, in case of a recovery by the paintiffs—be presented upon an appeal irom the judgment upon the issues of fact now ready ior trial, and thus, if the practice is tol- erated, several successive appeals from judg- ments avd decisions, im different iorms, way be brought in the same action by diferent purties, each presenting but the one and the same question. It is true that the complaint has only been expurgated o1 the supposed redundant matter as to the present re- spondent, and as to the other defendants it stands as originally served, and the canse must proceed against them upon the facts alleged so far as material to the right of the plaintiifs to sue, and upon the theory upon which the action was brought and the complaint framed by the learned counsel jor the plaintiffs, and this constitutes another of the avonialies oi this case. Whether the allegations and statements stricken out as to this respondent were or Were bot material, and might or might not be available to give the plaintiffs a right of action, 18 not before us upon this appeal, AND NO OPINION IS, THEREFORE, EXPRESSED UPON THE QUESTION. It may be that if these allegations should be sus- tained by proof, the case would be regardea as #0 essentially diferent from that presented by the demurrer before us that the in the one case would not control the part stricken out been regarded by the Court as redundant, a3 it had been adjudged, and the de- cision of the Court first made adopted as the law of the case, irrespective of the individual opinions Of the judges. In its present form A VERY DOUBTFUL QUESTION IS INVOLYED as to the right of the plainuffs to appeal, there being no fiua! judgment as to all the parties de- fendant. amount and the novelty and importance of the questions involved, and the serious embarrass- ments and possible loss that might ar.se from a dismissal of the appeal, I incline to forego the con- sideration of the question of practice and consider the appeal upon its merits, as if no question existed as to its regularity. Tune action having been severed as to this defendant in the manner and by the proceedings beiore referred to, the demurrer of the deiendant and the present appeal must be considered as if the pres- ent respondent were the sole defendant and the acuion stood against him alone. The appeal in the ston as it comes before us does not involve the ut of the state to maintain an action against the auditors or any of them for malfeasance in ottice, or auy person occupying an oMicial position and who bas been faithless to his trust. The ACTION IS FOR THE RECOVERY OF A CERTAIN SUM alieged to have been obtained by the respondent aud the other persous named in the complaint, ls ssociates and coniederates, by false and (raudu- and by @ corrupt and pombination and conspiracy. The gist Lion is the obtaming by the defendant and others, und appropriating to their own use, @ large suni of money, to Which they Were not entitled, py the false and iraudulent practices detailed, and tue demand ls ‘or judgment tor the amount al- jeged to bave been thus obtained, with interest. It is hotin terms averred that the money, ia any legal sense or iu equity and good couscience, belonged to the plamtiits, 80 that the deiendants can be charged with the same as elved to their use, or that the wrong was perpetrated directly against the State or the people of the State—that 1s, the Who State as a legal entity and the whole body of the peopie: but tue want of such aver- ment it 1s claimed is supplied and the neceasity of such averient obviated by allegations as to the source from which the money came and the au- thority and ageney by and purposes for which it was procured. Tie title to and ownership of the money sought to be recovered must de- terwihe the right of action, and ff the money did not belong to the State, but did belong to souie other body having Capacity to sue, this action cannot be maintained.— (People vs. Booth, 32.N. Y., 897.) The eminent senior counsel jor the piaintifs, in his argument in we Supreme Court of the demurrer of another aefendant, with copies of which we have been iurnished, in answer to a question put as to “who did own the money,” as- serted that the State owned it, and in substance conceded that none but the true owner could have an action ‘or its recovery. He says:—"“l believe I have answered the question, WHO OWNS THE MONRY? It is but another way of putting the question, Who | can maintain the action’ Of course, the action ought to ve maincained by the party who 1s to be regarded as the technical owner of the money, and the party so regarded in the law is the party to maintam the action.” 1have quoted this paragraph as expressing ac- curately and terseily the precise point upon which the right of the plaintiffs to sustain the action hinges, and it is in strict conformity with People vs. Booth, supra, It may not be material whetier the property in the money Was absoiute or quali- fied, general or speciai; but there must be an owuerstip of some kind to give an action. fhe party to maintain an action for a tort or wrong to property must be one whose property rights have been tortiousiy interiered with or invaded—one Who, a8 trustee, special property man, batlee or eneral owner, has Leen peconiartiy damaged. Phe State canhot any more than an individual have @ civil action for the recovery of money, whether vy way ot damages for fraud or other wrong, the wrongiul conversion of chattels or for money received by and in the possession of others, except upon proof of title and ownership. A distinction is to be ob- served between actions by the people or the State, in right 01 the prerogative, incident to sovereignty and those founded on some pecuniary interest OF proprietary right. The jatter are governed by the ordinary raies of law by which rights are determined between individuals. A class of cases relerred to and examined at great jength by counsel do not cal for an extended con- sideration if the title to the money fraudulently taken was in the county of New York, and an action lies at the suit of the Board of Supervisors im benali o1 that county for its recovery. it is weil settied 10 England that in rignt of the prerogative 0: the Crown tne Attorney General, in bis name of office, may proceed either by imformation or vy bili in equity to establish and enforce the execution of trosts 0! property by public corporations to prevent, the misappropriation or misapplication of funds or property, rai or held for public use, and the abuse ol power by the governors of corporations or public oificers, or the exercise of powers ne comlerred by jaw, and generally to cali upon the courts to see that right is done to the subjects of the Urown who are incompetent to act for them- seives, Ordinarily the remedies sought have been preventive, but in some cases, as incident to the preventive and prospective reitef, a claim has been niade lor re(rospective reliel, especially when the mm sapproormied tands could be traced and re- clave judgment | in the other, | All possibility of conflict or successive appeals on | the same question would have been obviated bad | | duty of tae Court to grant preventive reile!, and | the relief actually grantea, if any, ig ad. | ditton and incident to that has de- | pended upon circumstances. The right of the | Attorney General to intervene and the jurisdic- tion of the Oourt was at first referred to, the stalute of Elizabeth concerning charitable uses an | lie use, although not strictly charitable, was heid | within the equity of the statute; but @ distinction was m | roceeded, and moneys, the avails of rates and | taxes levied by act of Parliament, were held not within the statute; but this distingtion Was soon ignored, and respect was had @ purpose for | which property and tunds were heid, rather than | their source and origin, in determming whether | they were held for & public and charitable use | within the jurtsdiction of the Court of Chancery. Sul more recently courts have held that the statute of Elizabeth was mot the source | of the jurisdiction — of the Court of Shancery, ‘but that trustees of property id the trusts enlorced as charities, later a pub. — @ as to the source irom which the funds | | OF was incapable of use for county purposes ex- | cept by legislative permission, there would be no hecessity Or oceasion for the ‘intervention of the | estimated “revenues of | pre or their Attoraey General, as there might pecoeieine the existence of liabilities against the ef the authorities of the county—the trustees, | County, ang in fact—had been participants in the fraudulent abstraction of the moneys, or accessories to the | frauas by retusing to prosecat It is material to recall the fact that all the allegations of collusion on the part of the county ofticers in the perpetra- NEW YORK HERALD, WEDNESDAY, JUNE 17, 1874—TRIPLE SHEET, tained upon the general principles of the right and | and wrong was against the county, whether the | rects the Boara of Supervisors to cause to be | money was held upon any pariicular trust or was | applicable to the general purposes of the county, | as of the claims specified in cer- | with full pret to acquire and hold property, | tain sections thereot, er deducting from | create debts, levy taxes and sue and be sued, with the aggregate amount of the claims the thus the county, the possession by it of property and sources of revenue other than the power of levying taxes. It also regulates the beinging of actions against the county, and section 4 {s based upon the acknowledged fact that the county had incurred obligations and contracted debts which were a | tion of the fraud and wrong and in the tilusory | County charge to an amount so large that it was Prpeecasion of the offenders as well as of any | imexpedient to levy a tax for the payment of them nWillinguess On the part of the county or its corporate authorities to prosecute for the | Fecovery have been expunged from the compiaint as to this defendant. It would not be claimed | that if the county has a cause of action and can re- | cover the money (and there are no obstacles to an action by the county ag no Omisgjon of the oMm- cers of the county to bring an action) that the | State can maintain an action for the ie money. Dorrowing Money for thal purpose. ‘By the special at purpose. he special provisions made for the audit and payment of the claims referred to, the tegal rignt and obligations of the county were not essentially varied, or the relation between the State and the county affected, or any new relation created between the grea nd the creditors of the county. | A spectal process was devised and put in exec for public use were always subject to the action | True, in some cases, as in the case of general | tion to meets present necessity, somewhat difer- of account, and that tne Court of Chancery had concurrent jurisdiction in the courts of common law in compelling an accounting, and that by reason @! the techutcalities of the action of account proper in courts of law @ court of equity affordea the better remedy of the two, The Municipal Cor- poration act of 6 William, 4ch., 76, has been re- ferred to; but Ido not understand that it affects the question as to the general jurisdiction of the Court of Chancery over public trusts at the in- Stance of the Attorney General. It did make large classes of property held by boroughs and other | municipal corporations trust property, ana tue corporations trastees of the same, which before had been held as the property of the corporations, unaffected by any trust and as private property, Dut in no otker respect affected the jurisdiction | of courts of equity. The same principie has been held applicable to commissioners and other public oMcers clothed by Parliament with power over Property for a public use. 1p all the cases the ac- tiou of the court was invoked against faithless trustees and to compel a proper execution of the trust and a right use of trust funds by those charged with toew administration, A breach of duty or a violation of trust by the trustees, either actuai or tureatencd and impending, is at the foundation of every action by the Attorney General or She Crown or the peopié a8 sovereign, and essential to the right of either to maintam as well as to the right of a court oi equity to enter- | | tain jurisdiction of @ suit by either toucning property and funds held by pubiic or | muaicipal corporations for jublic use. If the property of @ corporation . be illegally interfered with by corporation officers and agents or others, the remedy is by action at the suit of the Corporation and not of the Attorney Genei Attorney General vs. Brown, 1 Swauston’s R., 26: ame vs. Hicks, 2 S, and 8., 67; Same vs. East- lake, 11 Hare, 205; Same vs. Mayor of Dublin, 1 S., 312; Same vs, Mayor of Liverpool, 1 171; Same vs. Wuson, 1 Cr. and Ph., 1; Same vs. Corporation of Poole, 2 Keene, 190; 5, sud. nom.; Attorney General vs, Aspinwall, 2 Keene, 513, and 2M. and C., 613; S.C., 4; M. and C., 417, and 8 Cl. and Fin,, 409.) Decisions are cited from the reports of this country and of this State entitled to consideration and respect, aitirming to some extent the doctrine of the English courts, and applying it to like cases, as they have arisen here. But in pone has the doctrine been ex- nded beyond the principles o/ the English cases, | 1 aside from the jurisdiction of courts of equity over trusts of property for public uses, | and over the trustees, ‘either corporate or official, tne courts have only interfered at the in- stance of the Attorney General to prevent and pro- hibit some official wrong by municipal corpora- tions of public officers and the exercise of usurped or the abuse of actual powers, A case is not made by the complaint within the doctrine contended for, or the cases relied upon or within the reasons which le at the joundation of the doctrine, and | it 1g not necessary, there:ore, to consider whether | the doctrine to its full extent, or within what limits, uf at all, is a part of the common law of this ‘State, or whether it has been superseded or modi- fied by statute, Doubtless the prerogatives of the | Crown, except as affected by constitutional! limi- | tations, exist in the people as sovereign, but to what extent the exercise o/ this prerogative is com- mitted to the public officials, either by che Legisla- ture or by the common law, 18 @ question worthy of ‘ave consideration and not to be lightly decided, | d should only be determined when necessary to a judgment and decision. Whenever the Legisla- ture by statutory enactment has conierred upon STATE OFFICERS OR PUBLIC BODIRS authority to represent the body of the people tn the exercise of any prerogative right no question can arise, {or in those matters, except as re- straiued by the constitution, the Legislature is supreme. if tnere were no other remedy for a great wrong and paoiic justice and individual rights were likely to suffer for want of a prosec tor capable of pursuing she wrongdoer and re- dressing the wrong, the courts would struggie — hard to find autnority for the Attorney General to | intervene in the name of the people. But, in the | | absence of such a necessity, the exer- | cise .of high prerogative powers ought ‘not by @ species of judicial legislation | to .be committed to the discretion of | any Individual or body of men. Such a committal | 01 power siould be the act of the Legislature, who’! can hedge it about with al! necessary sareguard: his actioa ig not to establish or etilorce a trust. The parties defendant are not, nor is either of them a trustee, charged with any duty or intrusted With the possession Of !unds or property to be ad- mivistered by them for any pubite ase. They are sought to be charged as tort ieasors, or a consum- | mated and completed tortious act. | THE PRESENT RESPONDENT | is not alleged to have occupied any ofticial position | or to Gave owed any allegiance to the State or any | of its civil or political ulvigions except such as | every citizen owes, and is not charged with having or State of New York, or to the funds of either. | Uniess the people of the State, or the State as a bouy politic or corporate, owned and were entitied | to the money wrongiuliy abstracted, THE DEFENDANT CANNLT MADE A TRUSTEE FOR | | HE STATE | by reason of his tortious act—that is, be can only be charged as an invoiuntary trustee of tne true owner Of the fund. Only one of the otner deien4- apts had any official relation to the transaction de- | tailed and such relation Was not that oi trustee in any sense of any funds or property or oi the | credit of the public. He, with others, was cbarged | with certain specific duties, wiich did not include the possession, Care or disposal of the public tunds or credit. These dutles were concluded long be- fore the commencement of this action, and tue | ) complaint against him, so far as it touches his oM- | | cial action, 1s for maiversation in the administra- | tion of bis office or agency, by means of , which large sums of money ‘have been | lost the true owner and appropriated himself and others, Whatever other | remedies the people may have to redress or punish this Wrong, O00 precedeut has been referred to ior the maintenance of a civil action by the people to | recover eituer the money lost or for compensatory | damages without proof ofa right in the State as @ political and corporate entity to the money as | owner, and which would give it a place in tue treasury of the State when recovered, or of some pecuniary damages sustained by the State, the compensation ior Which would Of rigut beiong to its treasury. The people, by the complaint, ciaim as owners, und do not seek to reclaim the money and compel its appropriation to avy particular use or purpose, ‘The claim of counsel in their printed brief and upon argument was that it must be as- Sumed that upon the recovery of the money by the State aud its reaching the State treasury the lature Would make such disposition of it as Leg! shonid de equitable and just, not clatming that there Was any valid trusc whica could be estab- lished and enlorved in equity. SUCH A SHADOWY AND UNSUBSTANTIAL EQUITY, depending upon the will and future action of the Legislature ior ifs recognition and establishment, is bot the equivalent of or substitute jor a trust of wilich the courts cau take cognizance. In ail the cases of public or charitable use established at the suit of the Attorney General or tue State, the par- ticular use has been averred, and without such averments the bill or iniormation would have shown no equity and the Court would have been without — jurisdiction. Attorney General vs Huber, Same vs. Eastlake, Same vs. Brown, | pra, are illustrations of tne principles | controlling the jurisdiction of courts of equity over individuais and public bodies acting onicially im respect to property interests o1 the public. In all the cases the parties proceeded against and whose action was sought to be con- trolled or restraiued had the acting administra- tion of property or the power to raise and control funds, dedicated or granted for pubic use. and their offices and duties were continuing and re- spect Was had in the relief sought to their furtuer action, So the other cases referred to (supra of Attorney General vs. Dublin and Same vs, Liver- | pool), are instances of the application of the prin- ciple and the exercise of the jurisdiction against municipalities having control and direction of junds and property for the pubite use, The Attorney General vs. Wiison (Craig & Phil.) divers jrom the others in this, that the Rorough o: Leeds appeared on the record as relator and us a co-plainuf with the Attorney General. The right of the corporation o/ Leeds to maintain the action Was recognized and affirmed by the Court, and it was said that the right of action prior to the jassage of the municipal corporation act of V lillam, 4, Was solely in that corporation, jor the reason that the fund was tne property of the cor- poration, and was only subjected to a trust, and the jurisdiction of the court of equity asa trust | fund by that act, and it was held that the corpora- tion Was a proper party to the action, its right of action not being destroyed, because by the act the | Attorney General had a right to complain of @ vio- lation of the trust. In that case, as in the others, the foundation of the jurisdiction was an existing aud continuing trust, and the object and purpose | of she action was’ to compel tue due execu. tion of the trust, and for relief against w fraudulent misappropriation of the trust und by former governors of tie corporacion and man- agers of the trust. in this connection the consideration of the rignts of the people of the State and the powers of the Attorney General as their representative to c the parties to an account for their matfeasances, ond to reciaim the money toruously and iraudu- lently appropriated, THE RIGHT OF THE COUNTY OF NEW YORK TO SUB FOR AND RECOVER pi Money as owner and mi sence Ol any fraud or collusion on governing body of the county in the perpetration o: the wrong and commission of the fraud, or any inability or disinciination of the proper oMvcers of the county to prosecute, if the money Was the property o1 the county, proj Su “iu specie, The furisdiction has been sus | erty belonging Wo its treasury, aad tne rovoery | rilv incident to any other like ur@anizauion. 1 ai- | ever name called and known, But without further pursuing | as the question primarily to be deter: | owner and bailer, or principal and agent, either can, under certain circumstances, maintain an ac- tion for money or Property OF upon cuntracts; but these are exceptional cases, and unis case is not within the exception or the reasons for it, There | is no such or analogous relation between the State government and the counties of the State, and the general rule must apply that @ right of action jor the same thing cannot, in the ab- sence ol legislation or ‘some reason giving duplicate actions, exist at tl time in two independent corporations or individu- | als. For the wrongful conversion of money or | property belonging to a municipal corporation, or | for which it may have an action. these cannot be | | concurrent remedies by the State and the munici pality prosecuted part passu. Lf the state has a right of action it results from and as an incident of its sovereignty, and must necessarily be par- | cers, ‘amount to that of the subordinate body, and upon the exercise of the right by the State the right of | the corporation must be suspended, and upon @ | recovery by the State the corporation be barred of its remeay. Otherwise a party may be vexed with two litigations and possibly have two re- | him for the game cause of action, { find no authority or precedent for thus depriving @ municipal corporation of @ civil and corporate ri coveries against ht of action, and of | ent in detail irom that provided by general laws | tor the sdjuatmans and payment of county charges, but the whole process was by sod in behalf of the county as & corporate body, having the power to act lor itself, and there was no special or general agency to act in behalf of the State. It was merely @ grant of bos te power modified and varied trom that ordinarily conferred upon this and other counties, a8 made necessary by tue peculiar cir- eculiar | cumstances, and to the limit of the power thus can- e same | ferred the county was ao independent indtvidual agent, and the State, as such, Was neither entitled to the iruits nor responsible for the consequences of the exercise of such power. The county wus ermitted to change the form of its indebtedness, ut the indebtedness remained as before, a county charge. The authority to borrow was conierred upon the county, and to be executed by county AUDITING CLAIMS AGAINST THE COUNTY. | _ The special duvy of auditing the claims was im- | posed upon the individuals designated by the act, but their duty ended with certifying the amount of the several claims, and the county officials had no control of their action, The Legislature might have fixed the sums and adjusted the claims in the statute, or authorized the amount to be deter- | mined in any other way, or by any other tri- bunal. Yo this extent the couuty, In respect to roperty, in the discretion of the law officer of the | tuts clas o! claims, was taken out of the general Bint. ‘A county is not independent of the State, | Statutory provisions authorizing claims and an imperium in imperio, but 18 1M all things sud- ject to the State and the Legislature of the State, | 48 sovereign, and its boundaries, its rights, privi- leges and powers may be enlarged or carrailed, | Tights controlled | from time to time in the discretion of the Legisla- | and its property and property counties to be audited by the Supervisors. (R. 5. 366—Id, | 8683, section 17.) Those individuals were not | strictly county officers, neither were they State officers, bat constituted a special com- mission for performing a service for and binding charges against ture; but when grants, whether of rights or of | Upon the county which is ordinarily performed by power, are conterred by the Legislature, they are held absolutely, and to be enjoyed and exercised independently, subject only to the general laws of the State, the terms and conditions annexed to the grant, until withdrawn or modified by the Legisia- ture. THIS IS CONSISTENT WITH THE TOWN OF GUILFORD VS. SUPERVISORS OF CHENANGO, 8 Kern, 143, and Darlington vs. Mayor of New York, 31 New York, 164, Chancellor Kenf, in speaking of municipal corporations, says:—‘*They may be em- powered to take or hold private property for municipal uses, and such property 1s invested with the security of otuer private rights.”—21 Kent's Comm., 275, As remarked by Judge Denio, in Darlington vs. Mayor, &e., supra:—“This does not exempt such property from Legislative control, and in that respect property rights stand upon the same [looting 48 Other corporate rights, whether poittical or civil. Property owned by a city, couniy or other rauicipal or local government 18 held by 1t as a pu vite corporation and subject to the law- making power, and the governing body, by what- are ‘merely trustees ior the public, who are the cestui que trust of the corporation. A municipal cor- poration is the trustee of the inhabitants of the territory embraced within its linits.” An effort has been made to distinguish the county of New York trom the other counties of the State in respect to its powers and corporate capacity as one of the civil and political divisions of the State. But a brief considefation will serve to show, as was impliedly, if not expressly, conceded by coun- sel jor the plaintiffs, that there is DO substantial distinction—that 1s, no difference—between the organization and power of the county of New York and those of the other counties of the State which in the least affects the question under con- sideration. From the first the State has been divided for governmental and political purposes into counties, and every part of the State has been incorporated ‘tnto and embraced within the territorial limits of some county and subjected to county government. Every constitu- tion of the State has recognized this fact, and Made provisions consistent with it and based upon it. NEW YORK WAS ONE OF THE TWELVE ORIGINAL COUNTIES into which the State was divided by a law of the first Legislature, keld in the then colony of New York, on the first day of November, 1683—2 R. L., 44, 6. The first charter of the city of New York granted after the treaty of peace of 1674, by which the English were reinstated in the possession of the colony, was by Governor Dongan, in 1633, al- though the charter of Governor Nicolls, of 1664, had been recognized and corporate proceedings had under it trom 1674 to the granting of the Don- gan charter—Hoffman’s Treatise, 20. From an early period, if not from the first, the boundaries of York have been the same. Perhaps at one period this was not 80, but the fact is not matertis and only of interest as @ matter of local history. See Hotman’s Treatises on the Corporation, appendix x XX., XX/., Notes 17 aud 18. From 1683 to the present time the county of New York has existed, with substantially the same ter- | Titorial limits a8 at present, at all times having But in View of the magnitude of the | occupied any fiduciary relation to tue city, county | and exercising more or less of the political aud corporate rights that were held and exercised by the other counties of the State. By reason of the coincivence of the boundaries and the constitu- | encies of the two distinct ‘organizations, the city and county of New York, and their common tnter- | the Chamberlain of the city of New York as | Comptroller was not a depositar, @ county board, and which would seem to have been before then performed by the Co:mptroller of the city, pursuant to the provisions of chapter 854 of the Laws of 1868. Precedent was found for a | special board of audit for the adjustment of claims against the county of New York in chapter 806 of «the Laws of 1867, constituting Chauncey M. Depew, Benjamin W. Bonney, Lewis B. Woodruff and John | H. Martindale such voard. Every other act, save | the audit of the claims, was to be perforied, and | was performed by the county officiais and in behalf | of the county, The money was to be and was bor- rowed upon the bonds of the county, executed and attested by the proper oilicers and paid | by the Comptroller to the proper claim- | ants The Chamberlain of tue city is by law made County Treasurer. and all moneys be- longing to the county, from whatever source de- rived, of right are received by him and disbursed | upon proper warrants—(1. R, 5. 370, sec. 2y). ‘CITY AND COUNTY FINANCES. | By the act substituting the non-partisan Board of Supervisors for the former organization | (Laws of 1857, chap. 590, sec. 6) the finance department of the city and its officers (of wuom the Comptroller is chief), are to have the like powers and perform the like duties | in regard to the fiscal concerns of the soard of | Supervisors as in regard to the local concerns of | tue city, and it is directed that no money shall be | drawn from the treasury of the county except on | the warrant of the Comptroller, countersigned by the Mayor and Clerk of the Board, thus making the Comptroller and Mayor ex officio county officers, The complaint, therefore, 1s strictly ac- | curate in the averment that the moneys obtained | from bona fide purchasers of the bonds issued by | the Comptroller as prescribed by the act were, “in formal compliance with the statutes and usual modes 01 official proceeding in sald city, deposited im the National Broadway Bank ot the city of New York, to the credit of an account therein Bene by jounty | Treasurer of the said county, by virtue of his said official character as such Obamberlain.” The or disburser of the paolic funds, and the act did not contempiate | that he should receive and disburse the money. | mnatters The brief direction in the act that be should pay the claims audited must be read in connection with the general laws defining his powers and pre- scribing his duties in fYrespect to county and a8 & county Officer, or an oiicer charged with duties affect- ing the county. It was merely an authority, and a direction to draw a warrant upon the County Treasurer in tne usual form, as was Gone in this case. It was not intended to take these funds without the protection of the saie- guards provided by law for all public funds. Thas tae funds were, a8 averred in the complaint, | | legally and properly paid into the county treas- the city and county of New | ests and sources of revenues, the county organi- , zation has been of less political importance than in other sections of the Siate, and the gov- | erning body bas been difierently constituted and has exercised less power. At times many of the powers exercised elsewhere by the Boards Of Supervisors have been devolved upon the Com- mon Council o1 the city, and duties ordiuartly per- formed by county officers have been performed by city officials. If 18 Dot important to trace the changes that have been made from time to time, by some of which the distinction between the city and county government has been to some extent ignored, A ist, and at ail times a body has existed known as the Board of Supervisors of the county, who were the governing body of the county, exercising such legislative, administrative and corporate powers | a8 the Legisiature has seen fit to intrust to it. To the extent that oter special provision has been made by law for the performance of the functions in other counties performed by the Boards of Supervisors, the county of New York has been excepted from and not subject to the general laws affecting counties and prescribing the powers and duues of Boards 01 Supervisors. But in all otner Tespects the county has been subject to such gen- eral laws, and possessed all the powers corpurate, as well as governmental, conierred by law upon the counties of the state. change was affected in the constitution of the county government, and Jrom that time the func- tions of the governing body and the corporate powers of the county have been greatly enlarged, and the county government has more nearly as- simflated to that of other counties. In that year the controlling power in botn branches of the Legislature and the Executive department of the | State was in antagonism with the party dominant in the city and county of New York, and eituer with a view to the better administration of the yvovernment of the county, or tor the purpose of dividing the political power and the emoluments of office in the city and county of New York, pro- vision Was made jor the government of the county by a hybrid body—that is, by a Board of Super- Visors, $o chosen as to secure an equal number from each oi the two political parties, form mm government the project was doubtless @ failure; but as a means by which individual mem- bers of the (wo parties were enabled to combine and enjoy the luxaries of power, patronage and plunder, it has proved @ perfect success, CONSTITUENT ELEMENTS OF COUNTY PROPERTY. it is probably true that up to that time the county, as such, had but Iittle, if any property, eveu that which was necessary for pu but that circumstance did not its political existence or corporate capacity. A beger | may be absolutely destitute of all prop- erty and pecuniary means and yei the political and corporate existence be as perfect and the cor porate rights as compiete as under any other cir- cumstances. Very lew of the counti auy property save the necessary lands ings for public use, and some, at an early day, may hot have been the possessors of these, but their records Inay have been kept in the dwelling, store or office of the clerk charged with their custody, their courts eid in a schoolhouse, uccupted by | , the sufferance and permission of the school tru tees, But the county Organization was none the Jess periect by reason of the all its iunctions, suffices tor all the purposes of the present argument that irom 1857 until the | | Passage of the law of 1870 the county, | unuer the ‘administration of a Board | of Supervisors, did exercise many and large politi« cal, legislative and administrative powers, acquire | Property, incur pecuniary liaoilities and perform ; Other corporate acts under the sanction of law. The Board of Supervisors of the county of New | York were not certainly during all that time dis- | tinguished from the boards of Supervisors of other | counties by the Want of power or the opporta- nities for its exercise, although tne powers were ; hot in all respects identical. The legislation | which 18 the occaston ui the present litigation | Tecogoizes and affirms the corporate existence and | capacity of the county of New York as distinct from and independent of the city government, and as possessing all the essential powers con- | jerred upou other counties; and tf were no other foundation for the claim, that legislation would be sufficient to in- vest the county with all the attributes which per- | tain to a county organization and a municipat cor- | | poration, and bring New York within the province of the general statutes upon the subject of coun- | as otherwise specially provided by law, THE GOVERNMENT OF THE COUNTY OF NEW YOR lic use; | affect | | ury a3 county moneys, to be drawn out only in the manner and upon the warrants authorized by law. In the withdrawal oi these funds all the forms of | law were compiled with. The reiation of the | county @f New York to these moneys and tts right | a8 a muDicipal corporation to and over them was | precisely the Same as would have been that of any and every other county in the State to moneys Taised upon its credit or in virtue of power | conferred upon it for county purposes, The question then as to the rights of @ county, as & public corporation, in respect to funds raised by authority of law upon its credit, and in the hands of its treasurer, and whether an action could be maintained by the county in any form for the recovery of the money, if vertiously or fraudulently taken from the county depositary or embezzled by him. CORPORATE CAPACITY CONFERRED ON COUNTIES. Corporate capacity is conferred upon each county in tue State—and New York 18 not excepted—to sue and be sued, to purchase and hold landg within its limits, for the use of its inhabitants; to | make contracts and possess personal property, no time has the county ceased to ex- | In 1857 a most material | ij | | | | ei build- | overty of the | county, or its Imperfect preparation to perform | t there | proprietor should be con- | ties and their corporate rights aud powers, except | constitution against the and to dispose and regulate the use of its Corpora property; and all suits and proceedings against a county in its corporate capacity is di- rected to be im the name of the Board of Supervisors such county, that serv- ing pro hac vice, as the corporate name. GR. S., 364, sec, I-33; Id. sec. 1, 23 2 Id. 473, sec. 92-05. Supervisors of Onondaga vs, Morgan, 2 Keyes, 277.) Counties are public, as distinguished irom private corporations, and they are political as auxiliaries to the government ot the State, and they are trustees of the peopie, the inhabitants within their county, (North Hempsted va. Hempsted, 2 W. R., seh They are sometimes called quasi corporations, because not in terms declared by statute to be corporations, and have a corporate capacity only for particular specitied ends. But so loug as they are invested with cor- porate atiributes, even if it be sub modo, the dis- Unciion is Without a substantial difference within the limits of the corporate powers conierred. (2 Kent's Com., 278, 9; A. and A. on Corporations, sec. 23.) ‘ihey are trustees only of the property held for pubiic use. They are not the guar- dians and protectors of ‘the private and in- dividual interests or property oi the citizen. They may not intervene by action to pro.ect or redress tbe individual citizen im respect to wrongs or in- ary to his person or property. Their power as well as duty is restricted to the protection and preservation of property possessed by them in their corporate capacity. (Town of Guilford vs. Supervisors of Chenango; Mayor of Georgetown vs. Alexandria Canal Company, 12 Peters, 91.) ‘nig trusteeship and corporate power as a pecuulary fiduciary relator extends to and embraces not only tne tangible property of the Corporation, but the franchises aud powers conferred for raising moneys and other means jor the support of the Jocal govern- ment anu the use of the inhabitants of ihe county, and to the means realized from the franchises and powers conierred. It is immaterial whether the rant be of fees and emoluments trom licenses, excise duties, rents or the like, or of a power to levy taxes or borrow money. ‘he grant 1s & money grant by the State to the extent of the power conierred and the money realized under and by means of it. The pecuniary ability of a county May consist entirely, as it does ordinarily, in the power delegated to it to levy taxes or cre- ate a debt. The credit of the county, with granted power to use it, supported by the power of taxa- tion delegated by the State, 18 a corporate right, and the fruits and avails of that credit, when ex- ercised by the boreo wie of money, are as much the property and rightful pelons to the treasury the county as if the Specific sum had been anted in terms and paid irom any other source. in political and governmental matters the munici- | palities are the representatives of the sovereignty of the State and auxiliary to it im other matters relating to property | rights and pecuniary obligations, they have the attributes and ine distinctive legal rights of pri- vate corporations, and may acquire property, create debts and sue aud be sued as other cor- porations, aud in the borrowing of money and in- curring pecuniary obligations in any form, as well | as in the buying and selling of property within the limits of the corporate wers conierred, they neither represent nor bind the State, THE BTATE AND MUNICIPAL CORPORATIONS, The relation of principal and agent does not and of created with power to contract debts in respect to the exercise of the corporate functions. Debts contracted by municipalities by autnority of the Legislature are contracted by them as principals and mot as agents of the State. If this were not go they would be clearly within the prohibition of section 12, of article 7, of the constitution, but that they are not wav decided in “People v8. Flagg,’ 46,N. Y., 401, This agency must be established to entitle the State, without the direc nection of the Legisiature, to claim or control the fruits and proceeds of the legal pledge oi municipal credit, and from such agency once established necessarily and logically resuits the lability Oi the State for tne debts incurred, and this in face of the explicit prohibition m_ the State rect and indirect cre- ation of @ State debt. The State cannot clatm the benefits and repudiate the Obligations resulting | Yhe act (chapter 382 of the Laws of 1870) “to | from the relation of principal and agent. The | make further provisions for the government of the | claim ofthe State to fands and moneys thus ac- | county of New York’! distinctly recognizes the ex- | quired cannot be rested upon the general | Istence of the couuty, with every clement of power | sovereignty of the State and its rights | abd circumstance that can be claimed a necessa- | and duties a8 parenspatrie, ‘ihe State may and must, iu some cases, care lor and protect raised by tax the sums of uroney necessary for the yy and | cannot exist, for obvious reasons, between the | State and the various municipal corporations, those who are fncapable of partes, for themsetves, a8 infants, idiots aud the like; bOt a corporation @ competent board of governors, is not within this class of imeompetents fo need of the exercise of | this nursing fats | ‘of the State government. Neither can I discern any just foundation for the claim of the State to these funds—that {ts action is necessary to the protection of the taxpayers of the municipality. Tne cestuis que trust 0} the cor- porate property consists of all the inhabitants within the territorial limits of the Corporation, including taxpayers and non-taxpayers; therefore the corporators and their interests, as well the present as future inhabitants and corpo- rators, are cared for and represented by the governing body for tne time being as in other corporations. 1 incline to the opinion that money borrowed or raised by taxation for county par ses, and no’ Wanted or used for the par. ‘cular purposes for which it was raised, is applic- able, by the action o! the Board of Supervisors, to tae payment of any county charge; but if this be not so, the want of power to appropriate it to public use, without legis ative authority, does not work a forfetture of the moncy to the State. It ts not intended to deny the existence oi plenary power in the Legislature to direct the appropria- on Of any money in the county treasury to uny use or purpose ‘or the benefit of the inhabitants of the Bar pensaling. = (ase poe vs. ‘the Mayor, supra.) The saine objection might be taken to the right of the State, for if the moneys were | once in the State Treasury, it would re- quire legislation to authorize ‘their application or payment to any particular use. But whatever the Legislature mignt do in the way of revoking a grant Of power or of using or controlling the@rop- erty Of @ county, no power in that direction has been conierred upon the Attorney General. THE POSITION AND RIGHTS OF TAXPAYERS. Much was said in the course of the argument of the position ana rights of the taxpayers and the impossibilt ie ol justice being done them unless the State could by action recover and control the money in controversy. But the taxpayers as dis- tinguished trom other inhabitants of the county have no peculiar interests to subserve or right to or interest in the money, The cestut gue trust of @ municipal corporation are all the inhabitants Within the territorial limits, whether taxable or not; and although the Rs eal May be more im- mediately affected pecuniarly by a maludminis- tration of the corporate and trust funds he nas no rights eXcept such a8 are common to all the inhao- itants, One taxpayer for himself, or himself and all others or all the taxpayers combined, cannot have an action for the correction or prevention of | @ misappropriation or misuse of the corporate property. (Doolittle vs. Supervisors of Broome County, 18 New York, 155; osvelt vs. Draper, 23 1d., 318.) When the State, in the exercise of the taxing power, or any of the political corporations in the exercise of a delegation of the same power, | has collected taxes pursuant to law the amount | levied has ceased to be the property of the tax- payers and becomes corporate funds and money tn | trast for public purposes. The result is the same | if the money ts borrowed in anticipation of taxa- | tion and'to be levied of those who shall hereatter become taxpayers, Nelther the piescxt nor pro- spective taxpayers have an. Fr M4 special and peculiar | mterest tn the fund as distinguished from that of other citizens and subjects of the government imposing the tax or incurring the debi. The bor- rowing of money to be repaid by taxation in the future is but one form of exercising the taxing power, and the character of the fund is the game whether it has been collected of the taxpayer or borrowed upon the credit of the goverament, State or local. (People vs. Fingg, 46, N. Y., 401.) For ail governmental and pudtic purposes, includ- ing that of levying taxes and borrowing money | for public use, the corporation is regarded as per- tual, and no respect is had to the chang- ing character of the constituency, and those. liable to contribute to the support of the government or the payment of its debts. If, by mistake or error of any kind, taxes | in excess of the amount required for present pur- poses have been, pursuant to law, collected, they cannot be recovered back unless there has been some irregularity or defect of jurisdiction, which Vitiates the assessment and levy. TRUST FUNDS FOR PUBLIC USE. Neither is the money @ waif belonging to the State or any one who may chance to ubtain pos- Session of it, but it belungs to the municipai treas- ury, and is a trust fund ior public use by the cor- | porate authority. The result is the sawe if the money has been borrowed in excess of actual wants, and it is enough tnata binding obligation bas been incurred by the municipality to repay the money. Whether the obligation was incurred strictly pursuant to law is not important. If the public corporation having power to act individually and im a corporate capacity has by its oficers so acted under the laws as to become bound by its obligation, the debt has be- come @ corporate and a county chargé, and the moneys, the fruits and proceeds of the obligation, are trust funds, subject to the control of the gov- erning body of the corporation under the general laws Of the State. The validity of the bonds which are represented by the moneys sought to ve re- covered in this action is conceded by the counsel for the appellants, and if not valid the purcbasers of the bonds are entitled to reclaim the money paid for them, If valid, they are the obligations of the county of New York, and the debt a county charge. The State 1s under no obligation to pay the bonds or to provide jor their paymen., except so far a8 & sovereign State ts | ound to act in godd faith toward those who have acted aod parted with their money on tne faith of its laws and policy. The State cannot in good morals do anything to impair ordiminish, the ability of the county to pay the bonds at maturity. The only security the debtor has is the credit of the county, and the grant of powesto the county with direction im the act to levy taxes for the payment ofthe debt. To this extent the State may perhaps be regarded as coa- tracting with those who have taken the bonds, and to Rave agreed that the grant of power shail not be revoked, but this does not create an obliza- tion to pay the bonds. it only brings the transac- tion within the provision of the constitution of the United States prohibiting States irom passing any bill “imparing the obligation of contracts,” (Con- stitution of the United States, article 1, section 10), and makes the grant of puwer irrevocable. (foil- man vs. Quincy, 4 Wallace, 533.) It is claimed that tne county cannot be sued upon these bonds and a recovery had. ‘That the federal courte would sus- tain an action upon ti bonds against the county can hardly be doubted in view of the past action of these courts in similar actions. it has been held by the courts of this State that for claims which by statute are made a county charge, and for the auditing of which provision is made by statute, counties cannot be sued. (Brad: ervisors of New York, 10 N, ¥., 260; Martin vs. upervisors of Greene county, 29 vol., 605.) ceding that the rule holds, as to an absolute up- dertaking to pay a specified sum ata given day, it proves nothing. If an action will not lie upon the | bonds against the county the holders have a per- | fect legal remeay by the writ of mandamus to com- pel the levy of the tax and the payment of the bonds, and whether the debt may be recovered by one form of civil procedure or another is not mate- rial. It necessarily follows that this money being the fruits and avails of a burden imposed pursuant to law upon the taxable inhabitants and property oi the county of New York, for county purposes, of right beionged to the county of New York and its Treasury, and the county has an action against anyone who has by fraud or iorce become pos- sessed Of it. FINANCIAL EFFECTS OF FRAUDS IN AUDIT. It would hardly be claimed that if a. ter the avails of the bonds had peen depos ted with the County Treasurer, the alleged frauds in the audit had been aiscovered and the warrants withheld, or payment had been refused by the Treasurer, the State, by its Atiorney General, without legis- lation, could have compelled the _ pay- ment of the moneys into the State treasury or recovered the money of the County Treasurer. Neither would it be claimed that had | the County Ireasurer embezzled the funds his sureties would not have been iiaple as tor county moneys received by him. Had the bonds been de- livered to a purchaser without actual payment of the money any proceedings tora recovery of the bonds or the purchase price would necessarily | have been by the county. The fact that a larger sum was borrowed than was required to pay the just claims against the county, by reason of a fraud in the audit, does not, in my judgment, affect the question. The money has been raised, properly or improperly, upon the credit and at the expense of the county and for its use, to be repaid by it. The wrongiul act of the pu lic agents does not give to the State he rights and impose upon it the obligations of aprincipal inthe transaction. Had only just Claims been audited and allowed, and the precise amount required for their payment been raised, | and that had been taken by lorce or fraud frou the possession oi the county treasury, the legal rhghts Oj the county and tue relation o1 the state to the transaction would have been precisely the same as now, and yet the right of the county to maintain an action tor the money would not, in the case supposed, have been ‘doubted, ‘The county would have been the :ightiul possessor of the money and the proper party to an action for its recovery. (Van Keuren vs. Johnston, 3 Denio, 183, Supervisors of Albany county vs. Durant, 9 Paige, 182.) Tne reversal of the decree in this case by the Court for the Correction of Errors, 26 W. K,, 66, Was upvn @ ground not affecting the right of # board of supervisors to maintam the action, if a cause of aetion had existed. BUILDING A COUNTY COURT HOUSE. Ifevery county of tne State should, by authority of law, levy by tax or borrow upon tie creslit of the county and a pledge of taxes 1 be levied in the future, a sum of money for the butiding of a court house or other special purpose, no one would doubt the title of the county to the money so long as it remained unexpended in the hands or the county officials, or its right of action jor the re- covery Of it, t1 it should be tortiousiy taken or em- bezaled, If there should be a surplus remaining Ol tue game money alter the accomplishment of the special purpose for which it was raised, aud it should be fraudulently or tortiously appropriated, the property of the county in such surpius, and its rigut of action to reciaim it, to the exclusion ol the State and every other corporate body would not be quostioned. This case does not differ in | principle and cannot be distinguished from that supposed. But tor the importance given to tt 0; eminent counsel I should not regard the source from which the money came as @ controlling or even an important element in determining by whom the action should be brought. It was in the county treasury, and was paid irom the treasury } 44 alleged, and received by the defendant as the money of the county upon a claim against the ; county, and if such claim was fraudulent and the ! pretence, under which the money was obtained, ° ¢ s e j false, the defendant is necessarily liable to the county, either in an action for tne fraud’ or for money had and received, | of the Stock Exchange :. i RS title and is estopped from denying the ise of the county to the money or right to reclain ii, if in fact it was falsely fraudulently obtained. These considerations lead to an aflirmance of the judgment of the Supreme Court. While in view of some of the circumstances connected with the origin and history of this suit we might wish for the purposes ot tlis action the Jaw was different, we can but declare It as we find it. There is nothing in the transaction itself or facts alleged in the complaint to distinguish thts case in principle from any other in which the funds and property of @ county have been embezzled, stolen or tortiously appropriated, or tending to show that the right of action and remedy which would exist in such case In any county of the State, are not vested in or ao not be- long to the county of New York Spect to the wrong complained of here. either 18 it averred in the compiaint thas obstacles in any form exist to the prosecution of such remedy by the county, or that the corporate Authorities Lave not prosecuted or will not and cannot effectually prosecate for the alleged wrong, THE COUNTY’S REMEDY. Were it believed that the remedy by and in behalf of the county was not plain, palpable and free from all doubt we might hesitate in giving the judgment to which our examination bas ied us ‘lest a fag- rant wrong might go unpunisned. It was con- ceded by counsel jor the plaintiffs upon the first argument of this appeal that the same reasons do not now exist ior maintaining an action by the State rather than the county that were supposed to exist at the time of the commencement of this action. Relerence was doubtless had io such sug- gestion to the statements of the complaint stricken out by order of the Court below, acquiesced in by the | gree tending to show coliusion be- tween the county officiais and the wrongdoers, and the dimecultios, by reason of such collusion ang complicity, in the way of an eifective prosecution of an action by the county. Those statements are not now in the record, and the position and rela- tion of the present government Oo! the county to the defendants 1s supposed to have been changed, Whether this be so or not 1s not material upon thie appeal, as the record «discloses no fact which will take this action or cause of action out of the gen- eral principle governing all like cases. It will not answer to ignore well established rules of law and invent bew principles and modes of procedure solely by reason of the magnitude of a claim or the enormity of a wrong s0 long as there 13 & party im whom the cause of action is vested able and willing to prosecute, and established rules of law and iamiliar modes of procedure give an ample remedy to eniorce the right and redress the wrong. TO SUSTAIN THIS ACTION upon the ground that the individuais acting in the transaction under the statute were State agents, and not the agents of the county, would lead to serious results and greatly embarrass the State in respect to the many millions of municipal obliga- tions which have been incurred under legislative authority, only differing in the form and method of execution from that exercised in this case. The State cannot make the actors State agents with- out assuming the position and responsibility of principal, espectally if the agency is, as is claimed here, of a,character encitling the State to the truits and benefits of the agency. To sustain the action upon the ground of state sovereignty and a gen- eral State guardianship over municipal corporations and their righ’s and property interests without legislation upon this subject, and hold that for am imvasion of the property rights of a public corpo- ration an action will Ite in the discretion and at the instance of the Attorney General, in the name of the pone to the exclusion of or concurrent with a like right of action in the corporauon dam- mified, would introduce a new and strange doc- trine, subverting those by which the rights and opligations of that class of corporations have been governed, and lead to contusion and embarrags- Ment in the future in the administration of tne affairs and redressing of wrongs to the property rights of municipal corporations. The rigot te bring actions tor injuries to their property is ex- presély conferred and given to counties by statute, and this necessarily exciudes the right of the State to bring an action for the same cause. It is not intended to deny that @ case may be made in which the Attorney General may in the name of the people institute and main- tain an action against a wrongdoer, and the pub lic corporation whose rights have been iuvaded or threatened, and the governing body of suck corporation, to enforce a right, or redress a wrong, or prevent a breach of trust where the governing body 1s faithless to its trast or a party to the Wrong. Such a case is not made here and the question is not before us. Judgment affirmed. Judge Allen reads for affirmance; Judges Grover, Folger, Andrews and Johnson, concur. Jqydge Kapallo reads for reversal; Chief Justice Ch@rch concurs, Messrs. C. 0’Conor and W. H. Peckham for appel- lants; Mr. DL. Dudiey Field et al. for respondents. WALL STREET. Failures Yesterday—Turner Brothers, Bankers, Suspended—The Causes As- signed—Suspension of Berry & Co. There was much surprise in Wall street yester- day at the suspension of the old firm of Turner Brothers, bankers, at No. 14 Nassau street. The following notification was sent in to the President in re- New York, June 16, 1874. TO THE PRESIDENT OF THE NEW YORK Stock CHANG: Sin—We regret that we are compelled, ta justice to our creditors, to announce the suspension of our house, We hope to resume paymentin a abort time, and tn the meantime beg the indulgence of our creditors until a complete examination of our allairs can be made. Very respectiully, TURNER BROTHERS. The cause of the unfortunate suspension ap- pears to be the advance made to Western rail- roads upon insufficient security, This money was mainly advanced upon securities of the Bloom- ington ana Western Kaliroad, which was formed by A consolidation of the Indianapolis, Crawfordsville and Danville, and Danville, Bloomington and Pekia roads, which have been running as a single road since September, 1870, The suti total of these ad- | vances 18 stated to be $1,500,000. A member of the firm stated that he could not exactly estimate the amount, but it was in that neighborhood. He was certain, however, that the liabilities of the house would be paid in fall. He could not say whetner there woud be a resumption of business by the same firm or whether there would be a@ dissolu- tion. The Turner Brothers have existed as a firm since 1844, and have always made a good record. ‘Their suspension is in no wise attributable te stock operations or speculations on the street. The failure caused no excitement whatever im Wall street, and did not affect business. There ‘was merely some surprise at it. R. W. Berry & Co.,a@ gold brokerage firm, also suspended yesterday morning. It was not for a | large amount. — NEW YORK DISTRIOT CONFERENCE, Mission Work North of Harlem River= Millionnaire Methodists Living im Dread of the Poorhouse. Yesterday afternoon the New York District Con- ference of the New York Conterence of the Metho- dist Episcopal Church met in semi-annual session in Jane street Methodist Episcopal church, Dr. S D. Brown, P. E., presided. Rey. B. 8. Osborne was chosen secretary. ‘Tuis Conference consists of all the travelling and local preachers, exhorters, Sunday school superintendents and district stewards, and these oumber altogetner about as many persons as uke up the Annual Conference. Tt is designed eventually to supersede the Quarterly Couterences, and 18 a kind of half-way house be- tween the Anuual Conferences, Yhe recently acquired territory in Westchester west of Morrisamia, Tremont and Fordham, has been constituted a mission, and J, 8. Van Gaasbeck has been appointed missionary. Yesterday he pres es @ pithy sketch Of bis work there. Kings- bridge, where a feeble Methodist society of thirty- two members exists, is to be the centre of opera- tions. This society has a smal! building which hag been in existence nearly forty years, and yet the members have no vitality in themselves. He could stand On any piece of high ground there and look around on beautiful estates and magnificent resi- dences occupied by Methodists, a tax of one per cent irom which would build as fine a Methodist church there as any in the Conierence. And yet there they have existed and worshipped tn a little shanty for foity years, and he could not get one of those men to head a subscription for a new charch building. One old gentleman there, who has been a Methodist over forty years, and is now past seventy, and worth anywhere between $1,000,000 ed $500,000, lives in constant dread of the poor- ouse, Rev, J. M, King, of Fifty-third street Methodist Fpiscopal church,’ read a capital ten minutes? essay on ‘The Pastor in the Homes of His People.’ 1c was full of practical suggestions and was greeted with trequent bursts of applause. In the evening Protessor Gillette, of the Normal Coliege, delivered an address before the Conter- ence in illustration of the journeyings of the Israelites. THE REVISION OF ASSESSMENTS. A mecting of the Board of Revision and Correw tion of Assessments was held at the Comptroller's omMce yesterday; present the Comptroller and Counsel to the Corporation, Recorder Hackett being absent. The following assessment lists were presented to the Board by the Comptroller, and, on motion, were coufirmed:— on street sewer, between Grand and Broome streets; Kightieth street outlet sewer, trom Hudson River to road in Kignty-first, Eignty- third and Kighty-eighth streets, in the branch sewers in 111th and 112th streets, between First avenue and avenue A; sewer in avenue A, be- tween 120th and 123d strects; sewer tn Firat ave- hue, between Third and Sixth streets dnd Ninth and Tenth streets; tor paving Fifty-seventh street, from Sixta to Eignth avenue, The gross amounts to be expended jor these improvements are $200,000. INSTALLING A NEW MASONIO LODGE. Last evening Mamonides Lodge, No. 743—one of the fifteen new lodges chartered by the Grand Lodge—was consecrated, corner of the Bowery and Rivington street, with full Masonic honors. M. We Eliwood E. Thorne, Grand Master of the State, oM- ciated. At the conclusion of the ceremonies Grand mite Koome proclaimed tne lodge duly conse crated. | |