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character of the testimony unobjected to, and which justified the conviction, to have no merit, even if the exceptions upon which they are submitted were technically well taken. We do not think they were, nor do they seem to involve any question which requires discussion.
The next point brings before us several allegations of error in the instructions under which the evidence was given to the jury. The record does not show that any exception to the charge was in fact taken, and there is there fore no question for us to review. We find in the printed brief of the appellant a statement that a stipulation was made by counsel to the effect “that a general exception should give the defendant the benefit of a particular exception to any part of the charge. This will not avail. Briggs v. Waldron, 83 N. Y. 582. An exception is not alone for the benefit of the litigant, but is required for the sake of justice and fair dealing; and in order, among other things, that, the attention of the trial judge being called to the supposed error, he may, if he thinks proper, correct it before the jury are called upon to consider their verdict. There were, however, numerous requests to charge. Some were refused, and the exceptions to the refusal are now said to have been “well taken.”. No argument is presented in support of that assertion, and our own examination discloses no error. The learned recorder so conducted the trial as to give the defendant the benefit of every doubt. His instructions to the jury were confined to the testimony, and their attention directed to the very right of the case, as it might appear to them upon the evidence. His rulings have been approved by the general term, after a most deliberate and minute examination of the law and the facts, and that the case has been in both courts well and properly decided we find no reason to doubt.
The result necessarily follows that the judgment appealed from should be affirmed. (103 N. Y. 519)
Cox v. MAYOR, ETC., OF NEW YORK.
(Court of Appeals of New York. November 23, 1886.) 1. OFFICE AND OFFICER-SALARIES-POLICE JUSTICES OF NEW YORK CITY-LAWS N. Y.
1860, CH. 508, 8 26.
Section 26, c. 508, Laws N. Y. 1860, providing that "for the additional duties imposed in this act the common council or board of supervisors in said city and county (of New York] may increase the compensation of any officer mentioned herein, gives authority to make but one increase of such compensation, and the salaries of police justices therein mentioned having been once increased, a resolution of the
common council for a second increase is unauthorized. 2. SAME-ILLEGAL SALARY-LEGISLATIVE RATIFICATION-LAWS N. Y. 1870, CH. 383, PAGE
Chapter 383, Laws N. Y. 1870, p. 888, authorizing the mayor and comptroller of the city of New York to increase the salaries of civil justices of that city to a sum not exceeding the salaries paid police justices of that city, does not ratify the resolution of the common council of the city, of December 31, 1869, increasing the salaries
of police justices to $10,000 per annum. 3. SAME-LAWS N. Y. 1870, Ch. 383, PAGE 881.
Chapter 383, Laws N. Y. 1870, p. 881, appropriating a gross sum for salaries of the city courts of the city of New York, based upon estimates stating the salaries of police justices to be $10,000 per annum, does not ratify the resolution of the common
council increasing such salaries to that sum. 4. SAME-ILLEGAL SALARY PAID VOLUNTARILY-Good FAITH.
The salaries of police justices of the city of New York were increased contrary to law, and a justice who entered upon the duties of his office after such increase had been made, received payment at the increased rate, in good faith, without any mistake of fact, and believing that the increase had been lawfully made. Held, that, the payments having been made to him voluntarily, they could not be recovered on the ground that the increase was illegal. Thomas Allison, for plaintiff. D. J. Dean, for defendants.
EARL, J. The plaintiff was elected one of the police justices of the city of New York, in the fall of 1869, for a term of six years, commencing on the first day of January following, and he served in his office until November 3, 1873, when his term came to an end pursuant to the provisions of section 2 of chapter 538 of the Laws of 1873. He was paid for his salary at the rate of $10,000 per year, to and including July 31, 1871; and thereafter, while he was in office, he demanded his salary at the same rate, but was paid only at the rate of $5,000. He commenced this action to recover the balance of his salary, being the difference between the $5,000 paid and the $10,000 claimed. The defendants in their answer alleged that the plaintiff's salary was lawfully but $5,000, and that he was paid the greater sum in 1870 and 1871 by mistake, and without authority of law, and they set up the over-payment of $7,916.66 as a counter-claim, for which they demanded judgment. The action was brought to trial before a judge without a jury, and he found that plaintiff's salary was lawfully but $5,000, dismissed his complaint, and gave judgment to the defendants for their counter-claim. The plaintiff appealed to the general term, where the court modified the judgment by disallowing the counter-claim, and affirmed it as so modified. Both parties then appealed to this court.
While this case is not free from some difficulty and doubt, we find no satisfactory reason for differing from the general term. The act, chapter 508, Laws 1860, provided for the recognition of the police courts in the city of New York, and imposed additional duties upon the police justices; and in section 26 provided as follows: "And for the additional duties imposed in this act the common council or board of supervisors in said city and county may increase the compensation of any officer mentioned herein.” At the time that act was passed the salary of police justices was $3,500; and in December, 1862, the common council, professing to act under that statute, increased the salary to $5,000, payable monthly from January 1, 1863. By section 11 of the act, chapter 876, Laws 1869, it was enacted that “the common council, or any head of department of the city of New York, is hereby prohibited from creating any new ottice or department, or increasing the salaries of those now in office, or their successors, except as provided by acts passed by the legislature."
On the thirty-first day of December, 1869, the common council adopted a resolution which provided that from and after January 1, 1870, the salary of police justices should be $10,000, payable in equal monthly installments. The claim of the plaintiff is that by this resolution his salary became lawfully fixed at the sum of $10,000. Whether or not this claim is well founded depends upon the construction to be given to section 26 of the act of 1860. Did that section empower the common council to increase the salary of police justices from time to time or only once? We are of opinion that it authorized but one increase, and that by the increase made in 1862 the power of the common council to increase the salary was exhausted.
By the act of 1860 additional duties were imposed upon the public justices; and, in view of that circumstance, and to adjust the salary to the new state of things, the power to increase was conferred. It was not a power which, to promote the public good, or to carry out a definite public policy, was required to be continuously possessed, or repeatedly exercised. The language of the statute seems to have been carefully selected; and, if it had been intended to lodge a power in the common council liable, from continuous importunities of office-holders, to be abused, we might expect to find the intent expressed in more appropriate and unmistakable phraseology. It is a delegated power, which should not be extended by construction, implication, or doubtful inference. There was authority to make the salary commensurate with the public service required, and this was to be exercised, not piecemeal, but once for all. Therefore the resolution for a further increase of the salary on the thirty-first of December, 1869, was unauthorized, and was also in violation of section 11 of the act of 1869, above quoted, and the plaintiff cannot, therefore, base his claim upon that resolution alone. But the claim is made that the legislature approved and ratified the increase of the salary of police justices to $10,000, and that, therefore, plaintiff's claim to the increase is well founded.
In chapter 383, Laws 1870, p. 888, it was enacted as follows: “The mayor and comptroller are hereby authorized to fix the salaries of the civil justices of said city (and any or either of them) as they may deem the legal business of the respective districts to justify, not exceeding the salary now paid to the police justices of the city.” The civil justices were then receiving a salary of $5,000, and, in pursuance of that act, the mayor and comptroller fixed their salary at $10,000, and it was held that thereby that sum became the lawful salary. Quinn v. Mayor, etc., 63 Barb. 595; S. C. affirmed in this court, 53 N. Y. 627. It is contended that the legislature must be presumed to have known that the salary of police justices had been increased to $10,000, and to have intended to confer authority to make a like increase to the civil justices, and that thus it ratified the salary then allowed to the police justices. We cannot assent to this claim. It is a rule of construction that the legislature is presumed to have knowledge of the facts directly involved in its acts; but it would be quite absurd to presume that it had knowledge of all the collateral and remote facts involved, or that it contemplated all the consequences to flow, directly or indirectly, from its legislation. Its knowledge falls far short of omniscience, and the rule can go but little further than to deny the right to assail legislative acts on the ground that they were passed through ignorance or mistake of fact. There can be no presumption that the legislature knew, when they passed the act referred to, that there had been an attempted unlawful increase in the salary of police justices, or that it knew what salary was in fact paid or payable to them. It was simply dealing with the salary of civil justices, and empowered the officers named to fix that at any sum not exceeding that paid to the police justices, and there can be no inference that it intended in any way to act upon or affect the salary of the latter officials, and hence there is no ground for saying that it approved that salary. It was, however, held, upon a course of reasoning not altogether satisfactory, that, as $10,000 was the salary actually paid to the police justices at that time, the strict letter of the act authorized an increase of the salary of the civil justices to the same amount, and that conclusion was reached without determining whether or not the salary of the police justices had been lawfully increased to $10,000.
By the statute, chapter 876, Laws 1869, § 12, p. 2133, the legislature required that thereafter all estimates for the anticipated expenditures of all boards and departments of the government of the city of New York should be made by the chief officers of every such board and department, in connection with the mayor and comptroller, and submitted to the common council at the first meeting thereof in January in each year, and that the estimates so submitted, whether acted upon or not by the common council, should be presented by the mayor to both branches of the legislature on or before the first Tuesday in March, and that the same, when so presented, were to be taken to be the sole official estimates of such boards and departments for such annual expenditures of the year, and to include all expenses that, in the opinion of such officers, might be necessary.
As thus required, the estimates of the anticipated expenditures of the city for the year 1870 were made up at a meeting of the chief officers of the boards and departments of the city and the mayor and comptroller, held November 29, 1869, when a resolution was adopted approving of the same. In those estimates the salaries of the police justices were estimated and stated in detail under the general head, “Salaries City Courts," (which included the police courts,) at $5,000. Before those estimates were, however, submitted to the common council, it had increased the salaries of police justices to $10,000 per annum. In consequence of this increase new estimates of the expenses of the city courts, which included the police courts, were made, showing the estimated salary of each of the police justices to be $10,000 per annum. Pursuant to the further requirements of the statute the estimates so made were submitted to the common council at the first meeting of the board held in January, 1870. The estimates so submitted showed, in detail, in the estimated expenses of the “city courts,” the salary of the police justices to be $10,000, and they were acted upon by the common council, and its action was approved by the mayor. Those estimates were transmitted by the mayor, before the first Tuesday of March, 1870, to both branches of the legislature, accompanied by a memorial of the mayor and comptroller praying that action might be taken by the legislature upon the same. Upon this memorial and accompanying estimates the legislature made the necessary appropriation to meet the expenses estimated. This was done by the statute known as the "City Tax Levy of 1870,” being chapter 383, Laws 1870, p. 881. By this act (page 888) the amount appropriated and authorized to be raised for salaries of the city courts was $364,435. It is further claimed that by this action of the legislature authorizing a levy of taxes for city expenses, including the large gross sum for the city courts, which was in part made up by the amount needed to pay the salaries of police justices at $10,000, the salary at that sum was also approved and ratified.
It cannot be presumed that the legislature had knowledge of all the facts upon which the city authorities based the estimates, consisting of hundreds and probably thousands of items submitted to it. It knew that those authorities had made their estimates of the money needed for city expenditures, and it authorized the money to be raised; but it did not authorize the money, when raised, to be paid out for unlawful purposes. It authorized a gross sum to be raised for city courts; but, when raised, that sum was to be paid out not otherwise than according to law. In authorizing that amount to be raised, there is no reason for saying that it meant to change or increase salaries, or to ratify any illegal action of the city officers. Sound policy requires that legislative ratification of what was previously unlawful should be found in plain language, and not left to uncertain implication and doubtful inferences, resting upon slender foundations. If the legislature had expressly authorized the raising of a gross sum in terms to pay each of the police justices a salary of $10,000, we would have had a different case. Ratification, whether by the legislature or individuals, is a matter of intention, and that should be made to appear. The plaintiff's complaint was therefore properly dismissed, and it only remains to be determined whether the counter-claim of the defendants was properly disallowed.
The salary had in form been increased before the plaintiff entered upon the duties of his office, and he received payment at the rate of $10,000 per year for one year and seven months, so far as appears, in good faith, without any mistake of fact; he and the other city officers concerned believing that the increase had lawfully been made. He received the payments more than six years before the commencement of this action, out of moneys for that purpose lawfully placed in the city treasury by the combined action of the state and local legislatures. If the statute of limitations had therefore been set up in the reply as a defense to the counter-claim, it would have been a complete answer to the same. Under the circumstances, it would be a hard measure of justice to compel the plaintiff, at this late day, to restore the money thus received, with the interest thereon. As appears from the opinion of the general term, the counter-claim was there disallowed on the ground that the payments to the plaintiff were voluntary; and, without giving our reasons at length, we simply announce our concurrence in that conclusion.
The judgment should be affirmed. (All concur.)
(103 N. Y. 663)
JOHNSON, Adm'x, o. MYERS, Ex'x.
SAME 0. MYERS. (Court of Appeals of New York. November 23, 1886.) 1. PARTNERSHIP-CLAIM FOR SERVICES RENDERED A PARTNER-WEIGHT AND SUFFICIENCY
In two separate actions by a widow, as administratrix of the estate of her deceased husband, for services rendered to the defendant's testator during his life, and to her after his death, when it appears that as to some matters plaintiff's intestate was a partner of defendant's testator, and that the plaintiff, more than any other person, knew of her husband's business relations with the defendant's testator, held, that the plaintiff's testimony as to the extent and value of the services rendered, corroborated by letters that passed between her husband and the defendant's testator, and by other letters, and other evidence of the value of the services, and by the defendant's adniission by a request to find that the plaintiff's intestate had rendered
some services, was sufficient to warrant the judgment in plaintiff's favor. 2. EVIDENCE-COMPETENCY-MATTER OF OPINION.
A question as to what proportion of an employe's time was devoted to his employer's business, asked a witness conversant with the facts, does not call for an
opinion, but for a fact within his knowledge, and is admissible. 3. SAME-PARTIES IN INTEREST-DECLARATIONS OF DECEVENT.
In an action by an administratrix for services rendered by her intestate, when both the fact of the services having been rendered, and their value, are in issue, a question asked a witness as to whether he had ever been with the intestate when professedly engaged in the alleged employer's business, is not objectionable as calling for intestate's declarations in his own favor; the question being asked with a view to showing his acquaintance with the intestate's occupation, and then to prove, by
his further testimony, the value of the services rendered. 4. ASSUMPSIT-SERVICES-EVIDENCE-CHARACTER AND ABILITY.
In an action for services rendered in conducting varied business affairs, requiring the best business ability, it is proper to show the character and ability of the person rendering the services, as evidence of their value.
Wm. G. Tracy, for appellant, Myers, Ex'x. Chas. A. Hawley, for respondent, Johnson, Adm'x.
FINCH, J. The plaintiff, as administratrix, recovered compensation in two separate actions for services rendered by Johnson to Myers in his life-time, and to his executrix after his death. Myers appears to have been an able and successful, though somewhat illiterate, business man, whose enterprises were varied and extensive, widely scattered as to locality, and involving heavy risks of capital, and obstructed by adverse interests, and the frequent hostility of litigation. In executing his plans, he found it both necessary and wise to secure and use intelligent and trained assistance. To some extent, he obtained the aid of Johnson, by joining him as an associate in his enterprises; but beyond that he employed him largely in his own affairs, putting confidence in the ability and honesty of the chosen agent. Necessarily the line between the partnership work of Johnson and that performed by him for the benefit of Myers individually was extremely difficult to draw, and, after the death of both parties, it has made an accurate and precise separation impossible, and to be accomplished only approximately, and by a careful judgment, founded upon such evidence as the nature of the case permitted. No person was so likely to know, in a general way, the amount of service rendered by Johnson, as his wife. His coming and going; his telegrams and letters; the litigations calling him abroad; the meetings and conversations of the parties,would be within her knowledge to some considerable extent; not always accurately, in detail, but generally as a whole.
She testified that, in the summer of 1870, Myers, complaining of his arm, and saying that Johnson knew more about his business than any man living, sought his help to "settle up his business,” and Johnson entered upon the work, and furnished the assistance. That she told the exact truth in this re