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The People v. Corporation of New York.

The People, er relatione Philip I. ARCULARIUS [*79]

AND JAMES DRAKE, against The MAYOR, ALDERMEN AND COMMONALTY OF THECITY OF New-YORK.

Where a person is already in office by color of right, the court will not grant

a mandamus to admit another person, who claims to have been duly elected. The proper remedy is by an information, in the nature of a quo warranto.

Riker, in behalf of the relators, moved for a mandamus to the mayor, &c. of the city of New York, commanding them to admit and swear the relators, as alderman and assistant alderman of the 5th ward, on an affidavit that they had been duly elected, &c. He asked for a mandamus. 1. To the corporation generally, to admit the relators; 2. To the mayor and recorder, to swear them; 3. To James Roosevelt, who had been adınitted and sworn as alderman of the 5th

were found to be rotten ; she was presumed not to have been sound at the time of sailing. (Lee v. Beach, Park, 342. Marsh. 160.) And a vessel that sprung a leak, and filled with water the day after sailing, without any apparent cause, and without having encountered any known accident to oc. casion material damage, was, from this circumstance, considered as not have ing been seaworthy when she sailed. (Talcot v. Com. Ins. Co. 2 Johns. 124, & 467. See also Munro v. Vandam, Park, 333, n.; Watson v. Clark, I Dow, 336; Coit v. Del. Ing. Co. M'harton's Dig. h. t. No 76, p. 325; $. C. Wash. 375, under name of Cart & Edwards v. Del. Ins. Co.) So where a vessel, the day after her departure from port, springs a leak, which so in. creases as to render it necessary to abandon the voyage, without having en. countered any gale or sustained any damage from the dangers of the sea, she must be presumed to have been unseaworthy at the time she sailed ; and the insurers are discharged. (Wallace v. De Pau, 1 Brevard, 252) So in Warren p. The United Ins. Co. 2 Johns. Cas. 231, where a schooner sailed from New York on the voyage insured on the 12th of May, 1799, and on the 14th of the same month, she sprung a leak, in consequence of which the master was obliged to put into the nearest port, and upon a survey of the wardens of the port of St. George, she was found decayed, rotten and unworthy to repair ; the court set aside a verdict against the insurers, though the schooner had been overhauled before leaving New York, and the carpenters supposed from the appearance of the upper works, that she was conapetent to perform the voyage. (See 2 Phillips on los. ed 1810, p. 753.)

The People v. Corporation of New York.

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ward, and John P. Ritter, the assistant, commanding them to desist from executing their offices, or show cause to the contrary.

The application was afterwards made, for rules to show cause why writs of mandamus should not issue.

Riggs and Harison, contra.

Per Curiam. Where the office is already filled by a person who has been admitted and sworn, and is in by colour of right, a mandamus is never issued to admit another person; because the corporation, being a third party, may admit or not, at pleasure, and the rights of the party in office may be

injured, without his having an opportunity to make (*80] a defence. The proper remedy, in the first *instance,

is by an information in the nature of a quo warranto, by which the rights of the parties may be tried.

Motion denied.(a)(6)

(a) (Old note.] See 1 East, 38. King v. Clarke.

(b) People v. Farquer, Breese, 68. See note to Fish v. Weatherwar, supra, vol. 2, p. 217–47, id, 45, id. 56, id. 57, id. 10, 11. But though an office be full, if quo warranto does not lie, mandamus will, supra, vol. 2, 219-11. (See Cole on Criminal Informations, 138, et seq. Tancred on Inf.in nat. of a quo war. 18, et seq. Respublica v. Wray, 3 Dallas, 490. Commonwealth v. Dearborn, 15 Mass. R. 25. The same v. Fowler, 10 Mass. 295. People v. Tibbetts, 4 Cowen, 358. The same v. Rip, id. 382, n. The same v. Van Slyck, id. 297.

The same v. Thompson, 16 Wendell, 655. Respublica v. Wray, 2 Yates, 429. Ex parte Bellows, 1 Missouri, 115. See also Sud. bury v. Stearns, 21 Pickering, 138; Strong, Petitioner, 20, id. 484. United States Digest, tit. Quo Warranto. U. S. D. Suppl. same tit.)

Ward v. Haight.

WARD against Haight.

Ad inquest of office is to inform the conscience of the court; and an inquisi

tion will not be set aside on the ground of the admission of improper ovi. dence; unless it appears that injustice has been done.

Riggs, for the plaintiff, moved to set aside the inquest as taken in this cause, before the sheriff of New York, on a writ of inquiry of damages, on the ground that the sheriff had admitted improper evidence on the part of the defendant so as to diminish the damages to which the plaintiff was entitled.

Hopkins, contra.

Per Curiam. An inquest of office is intended to inform the conscience of the court, and they will not intersere, unless it appears that injustice has been done.

The plaintiff does not show that his damages were lessened by the admis. sion of the evidence; and it is questionable whether it was not proper testimony. Where the inquisition is substantially right, we will not nicely examine the legality of the evidence. A new inquisition would not, probably vary the cause ; nor do the ends of justice require our interference.

Motion denied.(a)

(a) Seo Grab. Prac. 2d ed. 800, 801. Tidd's Prac. Am. ed. 1840, 582, Disborough v. Neilson.

of seq.

(*81] *Disborough and others againsi Neilson and

others.

Where A. agreed to deliver to B. by the lot of May, from 700 10 1000 bar.

rels of meal, for which B. agreed to pay on delivery, at the rate of six dol. lars per barrel, and A delivered 700 barrels, and also before the day tendered to B. 300 barrels more, to make up the 1000 barrels, which B. re. fused; it was held that B. was bound to receive and pay for the whole 1000 barrels; the delivery of any quantity between 700 and 1000 barrels,

being at the option of A. only, and for his benefit. A contract may be optional as to one party, and obligatory on the other.

This was an action of assumpsil. The parties, on the 220 January, 1801, entered into a written agreement, by which the plaintiffs agreed to deliver to the defendants, from the 15th of March to the 1st of May, then next, froin 700 to 1000 barrels of kiln dried Indian meal, in merchantable or. der, at six dollars per barrel; and the defendants agreed to pay to the plaintiffs two thousand dollars, by the 15th March, if it should be called for, and the remainder of the inoney on the delivery of the mea). The plaintiffs delivered to the defendants, between the month of February and the 28th April, seven hundred barrels of meal, in good order, which were accepted by the defendants; and, on the same 28th April, tendered to the defendants three hundred barrels more, in good order, to make up the 1000 barrels, but the defendants refused to accept the three hundred barrels, alleging that they were not bound, by the contract, to receive and pay for more than seven hundred barrels.

The only question was, whether the defendants were bound to receive and pay for the three hundred barrels, so tendered by the plaintiffs, to make up 1000 barrels.

Riggs, for the plaintiff.
Troup, contra.

Per Curiam. By the special agreement in this case, the defendants were bound to receive the whole 1000 barrels of

Van Nuys v. Terhune.

meal, if tendered, within the time specified. It was at the option of the plaintiffs only, to deliver any quantity, from 700 to 1000 barrels, and the stipulation in that respect was for their benefit. It does not follow, that the contract was not mutual. There was a sufficient 'considera- (*82] tion on both sides ; and a contract may be optional with one of the parties, in part or in whole, and obligatory on the other. (Doug. 23 1 Term Rep. 132, 133. Cowp. 218. Giles v. Bradley, 2 Johns. Cases, 252.) The plaintiffs are, therefore, entitled to judgment

Judgment for the plaintiffs.(a)

Van Nuys against TERHUNE.

lo an action of trespass quare clausum fregit, the defendant justified under

right of freehold; and it was held that a person who had conveyed the premises in question to the plaintiff, with covenants of warranty, was a

competent witness to prove the trespass. The general rule is, that if a witness cannot gain or lose, by the event of a

suit, or if the verdict cannot be given in evidenco, for or against him, in

another suit, the objection goes to his credit and not to his competency. An interest in the question only, does not disqualify a witness, but the objec.

tion goes to his credit only.

This was an action of trespass quare clausum fregit, and for cutting and carrying away wood, &c.

The defendant pleaded the general issue, and justified under a right of freehold. The cause was tried, at the King's circuit, in June, 1801, before Mr. Justice Lewis.

At the trial the brother of the plaintiff was offered as a witness to prove the trespass, but it appearing that he had sold the premises in question to the plaintiff, and, by his deed,

(c) Peck y. Hubbard, 11 Vermont, 612. See supra, vol. 2, p. 256, n. (a) to Giles v. Bradley. Seo also Smith v. Sanborne, 11 Johnson, 59. Appleton v. Chase, 19 Maine, 79. Small v. Quincy, 4 Greenleaf, 497. Chit. on Cont. Am. ed. 1848, 729, et seq.

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