(102 N. Y. 4) BYRNES v. BYRNES. Filed March 23, 1886. 1. ESTOPPEL-SEPARATE AND INDEPENDENT CAUSE OF ACTION. Plaintiff alleged that in 1872 he agreed to work for defendant for nine dollars a week cash, and five dollars to remain in his employer's hands, and sues for the money so left on deposit. Defendant pleads in bar a recovery by plaintiff of $100 which had been deposited in one sum with him. Held, that the claim for the $100 was a separate and independent cause of action, and that a recovery in the first action was not a bar to this. 2. PERJURY-SWEARING TO AFFIDAVIT WITHOUT KNOWING CONTENTS. While it is undoubtedly perjury for one knowingly and willfully to swear to a fact as true about which he knows nothing, yet it is not necessarily perjury for one to swear to an affidavit of which he did not know the contents. 3. EVIDENCE-PROOF OF LETTER. Plaintiff undertook to prove a letter of defendant's by him, which the latter denied having written. The court received it in evidence, and subsequently plain proof was given by another witness. Held, that if there was error in receiving the letter when it was first offered, it was cured by the subsequent evidence. 4. SAME REASON OF WRITING LETTER. Defendant, having denied writing the letter, could not afterwards testify as to why he wrote it. Appeal from a judgment of court of common pleas of city of New York, affirming a judgment in favor of plaintiff. Wm. H. Arnoux, for appellant. Douglas A. Levian, for respondent. EARL, J. The plaintiff alleges that in May, 1872, he entered into the employment of the defendant, his uncle, under an agreement whereby he was to have for his wages the sum of $14 per week, $9 of which was to be paid to him, and $5 of which was to remain in the hands of the defendant, upon interest, for his benefit, until he should want it, or leave the defendant's service, and that he remained in the employment of the defendant from that time until 1881, and this action was brought to recover the five dollars per week thus left in the hands of the defendant, with interest. The defendant in his answer denied the alleged agreement, and alleged that the compensation of the plaintiff while in his service was to be nine dollars per week, and that he had paid him in full for all his services, and alleged other matter. The action came to trial before a judge and jury, and, while upon the trial the case developed some extraordinary features growing mainly out of the conflict between the evidence of the plaintiff and of the defendant as witnesses, yet there was sufficient evidence to uphold the verdict of the jury in favor of the plaintiff. Upon this appeal it is claimed by the learned counsel for the defendant that various errors were committed upon the trial for which the judgment should be reversed, and we will particularly notice the most important. 1. In 1874 the plaintiff made a special deposit of $100 with the defendant, and in April, 1881, he sued the defendant in one of the district courts in the city of New York to recover that $100, and he recovered judgment against him for that amount, which was subsequently paid; and it is contended on behalf of the defendant that that judgment is a bar to the maintenance of this action. The claim is that that $100, specially deposited with the defendant, and so much of the plaintiff's wages as were left with the defendant under the agreement made in 1872, constituted but one cause of action, and hence that the plaintiff was bound to include all his claims against the defendant in one action; and that, having sued and had judgment for a portion of his cause of action, the whole cause of action was merged in that judgment, and that that judgment is a bar to the maintenance of this action, upon principles decided in Guernsey v. Carver, 8 Wend. 492; Bendernagle v. Cocks, 19 Wend. 207; Jex v. Jacob, 7 Abb. N. C. 452, and other cases. But we think the plaintiff's claim for the $100, specially deposited with the defendant in money, was a separate and independant cause of action, and that therefore a recovery in the first action was not a bar to this, within the principles laid down in the case of Secor v. Sturgis, 16 N. Y. 548. The $100 was deposited under a separate agreement. It had no connection whatever with the agreement for the rendition of services by the plaintiff for the defendant, under which the defendant was permitted to retain the five dollars per week from his wages. In Secor v. Sturgis the rule was laid down thus: "The true distinction between demands or rights of action which are single and entire and those which are several and distinct is that the former immediately arises out of one and the same act or contract, and the latter out of different acts or contracts;" and that "there must be either an express contract, or the circumstances must be such as to raise an implied contract embracing all the items, to make them, where they arise at different times, a single or entire demand or cause of action." There was nothing here to bring the claims embraced in this action and the claims embraced in the prior action within this rule. 2. In the district court action the plaintiff, for the purpose of being permitted to sue as a poor person, made an affidavit that he was not worth $100, besides wearing apparel and furniture, over and above the subject-matter of that action. According to the plaintiff's own evidence he swore to that affidavit without actually knowing its contents or understanding the force of the language therein contained. The defendant's counsel requested the court to charge that, if the plaintiff did not know the contents of the affidavit to which he swore, he was guilty of perjury, but the court declined to so charge, and defendant's counsel excepted. It is now claimed that there was error in this refusal. While it is undoubtedly perjury for one knowingly and willfully to swear to a fact as true about which he knows nothing, (1 Bish. Crim. Law, 524; State v. Gates, 17 N. H. 373,) yet it is not necessarily perjury for one to swear to an affidavit of which he did not know the contents. have thought he did know, and he may honestly have believed that he knew. This plaintiff could not read or write, and he was bound to rely upon others as to the contents of the affidavit. He might honestly have believed that the affidavit contained matter which it did not contain, He may and have supposed that he knew its contents; and hence he was not necessarily guilty of perjury, although in fact he did not know the contents. In order to fasten upon him the guilt of perjury, he must have known, at the time he verified the affidavit, that he did not know its contents, and he must have willfully made the affidavit knowing that he knew nothing about its contents, or the facts alleged. The facts contained in this request, therefore, even if sustained by the evidence, did not necessarily show that the plaintiff was guilty of perjury. 3. The plaintiff produced upon the trial a letter purporting to have been written by the defendant to plaintiff's father, in Ireland, in which, speaking of the plaintiff, he said: "James is well, and is laying by one pound a week;" and he attempted to prove this letter by the defendant, and the defendant denied substantially having written it; and, without further proof at the time, the court received the letter in evidence. If there had been no evidence subsequently given proving the genuineness of the letter, there would undoubtedly have been error in its reception; but subsequently very plain proof was given by another witness that the letter was actually written by the defendant, and was in his handwriting. We think, therefore, that if there was error in receiving the letter when it was first put in evidence, the error was cured by evidence subsequently given. 4. Subsequently the defendant was asked by his counsel to give what explanation he could give of that part of the letter which stated that the plaintiff was laying by a pound a week. This was objected to by the plaintiff and excluded. We think this ruling was correct. The defendant had denied writing the letter, and while he was standing upon this denial, and claiming that the letter was not genuine, he could not be permitted to state what he ineant by any passage contained in it. The learned counsel for the appellant claimed that various other errors were committed upon the trial. We have examined all the alleged errors, and do not think that any of the defendant's exceptions were well taken. We see no reason for reversing the judgment, and it should therefore be affirmed, with costs. (All concur, except RAPALLO, J., absent.) (102 N. Y. 13) HOBBS v. CITY OF YONKERS.1 Filed March 23, 1886. MUNICIPAL CORPORATION-OFFICER - AGREEMENT TO TAKE LESS THAN REGULAR SALARY IF ELECTED. Plaintiff agreed with the common council that if he was appointed city treasurer he would pay into the treasury all fees above $2,000 per annum. The year following, the city charter was amended, and the common council authorized to fix and limit the salary of city treasurer, not to exceed that sum, and to fix plaintiff's salary after June, 1878; but they allowed him to remain in office three years without fixing his salary, he deducting that amount each year, and finally settling his accounts on that basis. In this action he asks for the excess of his fees over the amount received. Held, that the plaintiff, hav 1Affirming 32 Hun, 454. ing assented to the arrangement, the amount named in the agreement may be considered as the salary to which he was entitled, the same as if it had been fixed by the common council, and he is estopped from claiming that his salary was not fixed at $2,000. Appeal from order general term supreme court, Second department, affirming judgment for defendant. Matt. H. Ellis, for appellant. MILLER, J. On the fifteenth of June, 1877, the common council of the city of Yonkers passed a resolution consenting to and advising the appointment of the plaintiff as treasurer of said city. At the suggestion of some of the members of the common council, one of their number presented to the plaintiff a paper, stating, in substance, that if the plaintiff was confirmed as treasurer he agreed to pay into the city treasury all fees and percentages received by him as such treasurer in excess of $2,000 per annum. The plaintiff signed the paper, which was returned to the common council, and ordered to be placed on file, and thereupon the mayor appointed the plaintiff as city treasurer. On the ninth of July, 1877, the plaintiff duly qualified as said city treasurer, and gave the bonds required by law, and continued to act as such treasurer until November 29, 1881, and until his successor was appointed and qualified. The appointment of the plaintiff was made in pursuance of chapter 35, Laws 1873, which authorized the mayor to make the appointment with the approval of the common council. At this time the compensation fixed by law was 1 per cent. on all payments made by him. By chapter 119, Laws 1878, the city charter was amended, and, among other things, the common council was authorized to fix and limit the amount of compensation of the city treasurer at a sum not exceeding $2,000 a year, on or before the commencement of his term of service, and the amount of fees and percentages received by him in any one year in excess of the sum so fixed and limited by the common council shall be retained to the use of the city. The statute also provided that the term of the city treasurer should commence on the first Tuesday of June, 1878, and at any time thereafter the common council had the right to fix the salary of the plaintiff at $2,000 a year. After the last-named time the common council allowed the plaintiff to continue in office over three years, and until his successor was appointed, without fixing his salary, as they had a right to do, evidently relying upon his agreement to serve for $2,000 a year. But for that agreement it is fair to assume they would have adopted a resolution fixing the salary. The plaintiff having assented to the arrangement, the amount named in the agreement may be considered as the salary to which he was entitled, the same as if it had been fixed by the common council, and he is estopped from claiming that the salary was not $2,000 for the time after the first Tuesday of June, 1878. Under the circumstances it may fairly be assumed that he acted as if his salary had been fixed at that sum. No point was made on the trial that the plaintiff could, in any event, have recovered more than $2,000 for the first year ending on the first Tuesday, 1878, and no distinction was made between what salary accrued before and what after that date. When the plaintiff was appointed, he was entitled to a percentage on all moneys received by him, and no authority existed in the common council to change the compensation thus fixed, and the writing signed by the plaintiff was, of itself, inoperative for any such purpose. Nor was any sum afterwards fixed by action of the common council, or any new appointment of the plaintiff made. He remained in office until his successor was appointed, discharging the duties as he had previously done, and receiving a compensation of $2,000 a year therefor. Each year he rendered an account, and paid all his receipts into the city treasury, except that he retained the sum of $2,000 annually, which was allowed him for his compensation. Upon this basis his accounts were adjusted, and during the whole of his term as city treasurer he made no claim for any further compensation than the amount which had been agreed upon. The agreement was a voluntary one, and there is no sufficient ground for claiming that any fraud or deceit was practiced, by means of which the plaintiff was induced to forego his right to the full compensation provided by law for his services, and to accept the amount fixed in lieu thereof. The agreement thus entered into was fully performed and executed. It was not an executory agreement against which a party could set up any legal defense, and justify his refusal to perform the same. All of its conditions had been carried into effect and executed before this action was commenced, with the consent and approval of all the parties. As we have seen, the plaintiff had settlements with the common council annually upon the basis of this agreement, assuming that it was valid and effectual, and thus he precluded himself from repudiating the same. Conceding that the agreement was illegal and invalid, the plaintiff had a perfect right to release the city from all claims he had for services beyond the amount which he had agreed to accept. Had he executed an instrument to that effect, purporting to be in full of all demands on account of his fees, no serious question could arise that it would be effectual for such a purpose, and that he would preclude himself from asserting any further right to compensation. He has substantially and really, by his conduct in the transaction of the business, done all this, and by his repeated settiements, in which he has accepted the compensation agreed upon, virtually discharged the defendant from any further liability. These accounts stated and rendered to the common council, and assented to by them as correct, are an effectual bar to any recovery in this action. At the close of his term of office he rendered his final account, and at the end thereof accepted a receipt from his successor, to the effect that he had paid over to him several thousand dollars belonging to the city. These annual accounts, which were presented by the plaintiff to the common council, and accepted by them as correct, contained the elements of accounts stated, which are equivalent to an acknowledgment that he has received full compensation for his services, and to a release for any further claim on account thereof. Such an account stated can |