perusal of the former opinion (113 App. Div. 84, 98 N. Y. Supp. 1063) shows that this court was then very careful to leave open and undecided all the questions arising from the claims asserted by the ice company, and the objections made thereto by the city of New York and the railroad company. The court said: "Had the commissioners passed upon the merits of the appellant's claims and concluded to award it nothing, quite different questions would have been presented to us than those which we feel called upon to determine upon this appeal. * Whether the deed of 1852, which is the source of appellant's title, was invalid, because the two branches of the common council did not properly pass the resolution authorizing a sale by the city of the pier right, or, if the resolution was properly passed, whether there was such an intent to pass title to the land upon which the pier was to be erected that no valid easement or wharfage right can be deemed to have been conveyed, or whether the appellant's grantor or the appellant itself has forfeited all or any of the rights which it may have had, or whether the appellant has any rights at all which the city should be compelled to compensate it for, we do not now determine, because those questions were not passed upon by the commissioners." The commissioners have now passed upon the questions expressly reserved, and have answered them adversely to the appellant. It therefore becomes necessary that we should consider them. The foundation of the appellant's claim is an alleged grant from the city to Caleb F. Lindsay in 1852. This grant purported to convey to Lindsay absolutely all the right, title, and interest of the mayor, aldermen, and commonalty of the city of New York of, in, and to a certain pier then existing at the foot of Forty-Third street, North river. Although this grant purported to convey a title in fee, it has been determined by the Court of Appeals that it did not convey such title, but at most only the incorporeal hereditament of the right to maintain the pier and collect the wharfage, etc. Knickerbocker Ice Company v. Forty-Second Street R. R. Co., 176 N. Y. 408, 68 N. E. 864. It is now claimed that the pretended grant, even of the right to maintain the pier and collect wharfage, was never legally authorized, and therefore never possessed any legal validity. This question has never been passed upon and challenges our determination. The pier which was the subject of the alleged grant lay wholly within the lines of Forty-Third street, as then lawfully established and laid out. Consequently no valid grant of the right to use or occupy it by any private individual could be made by any city officer, at least without authorization of the common council. At that time the common council of the city of New York consisted of a board of aldermen elected biennially, and a board of assistant aldermen elected annually. Laws 1849, p. 278, c. 187, § 1. It follows necessarily that there was a different common council in each year, composed of the aldermen elected for that year or the preceding one and of the assistant aldermen elected only for that year, so that the common council of 1852 was a different body from that of 1851, although it may be that the same aldermen were members of both common councils. The resolution of the common council purporting to authorize the grant to Lindsay was adopted by the board of aldermen on November 18, 1851, and by the board of assistant aldermen on April 19, 1852. It is apparent that no common council ever adopted the resolution, for the board of assistant aldermen which voted upon it in 1852 was not in existence and consti and 140 New York State Reporter tuted no part of the common council when the resolution was voted upon by the board of aldermen. It is well settled that in a legislative body consisting of two branches all business not passed upon by both branches falls at the end of the session, and to be legally carried out must be taken up again de novo. This rule has been specifically applied to the common council of the city of New York under the charter of 1849. Wetmore v. Story. 3 Abb. Prac. 262; Id., 22 Barb. 414; Matter of Beams, 17 How. Prac. 459; Beekman's Case, 11 Abb. Prac. 164; People v. Law, 34 Barb. 494. The very question here presented is discussed at great length and with persuasive force in the case first cited. It is argued that the validity of this grant as to the right to maintain. the pier and collect wharfage was passed upon and determined in Knickerbocker Ice Co. v. Forty-Second St. R. R., supra. It is quite true that the opinion in that case does affirm the validity of the grant to this extent; but the question now discussed was not considered or discussed in that opinion, and what was said to the effect that the grant was valid for any purpose was unnecessary to the decision of any questions involved in the appeal, and was clearly obiter dictum. The plaintiff in that case relied upon its claim to a title in fee, and it was conceded on all hands that, unless it had such a title, its action must fail. The complaint had been dismissed below. The judgment was affirmed in the Court of Appeals upon the express ground that the plaintiff, whatever rights it may have had, had no fee title. This was all that was necessary to a decision of the case, and all that was really decided. The present record contains everything necessary to the determination of every question at issue between the parties. All that will remain, even if the appellant's claims should finally be held to be tenable, would be a reapportionment of the value already placed upon the property to be acquired; and, in view of the very serious objection. now raised to the appellant's title, we conceive that this litigation, already much protracted, will most satisfactorily and speedily be finally settled if the present report be confirmed. The order appealed from should therefore be affirmed, with costs to the respondent. LAMBERT, J., concurs. CITY OF NEW YORK v. KNICKERBOCKER TRUST CO. (Supreme Court, Appellate Division, First Department. November 8, 1907.) 1. PLEADING AMENDED PLEADINGS-NEW CAUSE OF ACTION. The power of the court, even after trial, to permit the amendment of a pleading so that it will conform with the proof, does not authorize the importation into the complaint of what is in effect a new cause of action. [Ed. Note. For cases in point, see Cent. Dig. vol. 39, Pleading, §§ 686709.] 2. SAME DIFFERENT CAUSES OF ACTION. Under the ordinance of March 15, 1897, establishing a stoop line, the city sought the removal of certain steps and areaway of defendant which extended beyond the line. After the trial, with the court's permission, the city amended its complaint so as to include defendant's portico and columns within the stoop line. Held, that the court erred in allowing the complaint to be amended nunc pro tunc, since illegality of structures wholly outside the stoop line, and of those inside the line, but outside of the building line, rest upon quite different considerations and give rise to distinct causes of action. [Ed. Note.-For cases in point, see Cent. Dig. vol. 39, Pleading, §§ 686709.] 3. SAME-EFFECT OF AMENDMENT. Where the city sued to have certain steps removed under the ordinance of March 15, 1897, establishing a stoop line, and thereafter the court gave the city permission to amend its complaint so as to include a portico and columns within the line, the issue raised by the amendment should not be passed upon until defendant has had full opportunity to meet it upon proper pleadings, since the inclusion of the portico and columns in the complaint amounts to pleading a new cause of action. [Ed. Note. For cases in point, see Cent. Dig. vol. 39, Pleading, §§ 745, 746.] Appeal from Special Term. Action by the city of New York to compel the Knickerbocker Trust Company to remove steps outside the stoop line. From a judgment for plaintiff (102 N. Y. Supp. 900), defendant appeals. Modified and affirmed, and orders appealed from reversed. Argued before PATTERSON, P. J., and LAUGHLIN, HOUGHTON, SCOTT, and LAMBERT, JJ. Julian T. Davies, for appellant. Theodore Connoly, for respondent. SCOTT, J. The action as originally commenced, and as the complaint stood until after the trial had been completed, sought the removal only of so much of the defendant's steps on Fifth avenue, and of the areaway on Thirty-Fourth street as extended beyond the stoop line established by the ordinance of March 15, 1897. In so far as concerns these obstructions the question was settled, so far as this court is concerned, by the unanimous opinion delivered upon the affirmance of the interlocutory judgment overruling defendant's demurrer to the complaint, and nothing need be added to that opinion. 104 App. Div. 225, 93 N. Y. Supp. 937. To this extent the present judgment must be affirmed. We think, however, that the court erred in permitting the complaint to be amended, after the trial, so as to include among the structures complained of and sought to be removed, the portico and columns erected and maintained by defendant within the stoop line. The power of the court even after trial, to so amend a pleading as to conform it to the proof, is well settled; but this power does not go so far as to permit the importation into the complaint of what is in effect a new cause of action. When such an amendment is sought, the defendant is enti- . tled to answer the new allegations and to be heard upon the issues thus raised. The inclusion of the porticos and columns in the complaint amounted to pleading a new cause of action. The question of the illegality of structures wholly outside the stoop line, and of those inside. that line, but outside of the building line, rest upon quite different considerations. As to the first class, as was demonstrated in the former and 140 New York State Reporter opinion of this court, their illegality is clear. As to the second, there is involved the question as to the nature and character of the structure, and whether or not it falls fairly within the definition of a "stoop." That question was not presented by the complaint as originally framed, and should not be passed upon until the defendant has had full opportunity to meet it upon proper pleadings. The judgment will therefore be so modified as to confine its operation to the structures outside the stoop line originally complained of, and, as modified, affirmed, without costs to either party, thus leaving it open to the plaintiff, if so advised, to attack upon a proper complaint the legality of the portico and columns. The order allowing the complaint to be amended nunc pro tunc, and the order denying defendant's motion for leave to answer said amended complaint, must be reversed. All concur. COIN NOVELTY CO. v. LINDENBORN. (Supreme Court, Appellate Division, First Department. November 8, 1907.) DISCOVERY-EXAMINATION BEFORE TRIAL-PRODUCTION OF BOOKS AND PAPEBS. An order for the examination of an individual defendant before trial cannot properly require him to produce books and papers for inspection. [Ed. Note. For cases in point, see Cent. Dig. vol. 16, Discovery, § 89.] Appeal from Special Term. Action by the Coin Novelty Company against Solomon Lindenborn. From an order denying a motion to vacate an order for the examination of defendant before trial, and for the production of certain books and papers for inspection, defendant appeals. Modified and affirmed. Argued before PATTERSON, P. J., and INGRAHAM, CLARKE, SCOTT, and LAMBERT, JJ. Maxwell Davidson, for appellant. PER CURIAM. The order appealed from must be so modified as to strike out of the order for defendant's examination so much as directs him to produce for inspection certain books and papers. Gee v. Pendas, 87 App. Div. 157, 84 N. Y. Supp. 32; Matter of Sands, 98 App. Div. 148, 90 N. Y. Supp. 749. As so modified, the order will be affirmed, without costs. COMMERCIAL NAT. BANK OF CHICAGO v. SLOMAN et al. (Supreme Court, Appellate Division, First Department. November 8, 1907.) 1. SHIPPING-AUTHORITY OF MASTER-PORT AND OUTFITTING CHARGES. The master of a German vessel, consigned to ship brokers at New Orleans for cargo, had authority, both under the New York and German law, to incur obligations for necessary outfitting expenses and port charges of the vessel. [Ed. Note.-For cases in point, see Cent. Dig. vol. 44, Shipping, §§ 258. 259.] 2. SAME DELEGATION OF AUTHORITY. The master of a vessel, as agent of the owners, while not entitled to delegate all his authority, may request the ship's brokers to contract as the master's agent for the outfitting of the vessel. [Ed. Note. For cases in point, see Cent. Dig. vol. 44, Shipping, §§ 258, 259.] 3. SAME-SHIP'S BROKERS-AUTHORITY. Where a foreign vessel was consigned to ship's brokers at New Orleans for cargo, the brokers had implied authority from the owners to purchase necessary supplies to prepare the vessel for sailing. [Ed. Note.-For cases in point, see Cent. Dig. vol. 44, Shipping, §§ 320324.] 4. MONEY RECEIVED-ADVANCEMENT ON INVALID OBLIGATION - MISTAKE — QUASI CONTRACT. Ship's brokers, under express or implied authority from the owners, having contracted obligations for the necessities of the vessel which were required to be paid or assumed by some responsible person, before sailing procured the master to draw a draft on the owners therefor, pledging the vessel and her freight as security. Plaintiff discounted the draft under the mistaken belief that it was a valid obligation; defendants having subsequently established the master's want of authority to issue it. Held, that plaintiff, having paid its money under mistake, and the money having been applied to the owner's benefit under color of authority, plaintiff was entitled to recover it from the owners in an action for money had and received. 5. SAME-PERSONS LIABLE. Plaintiffs were not compelled to seek restitution from the ship's brokers alone, but were entitled to follow the money and recover it from the defendants whose debts it paid. 6. SAME-MONEY PAID-NATURE OF ACTION-PRIVITY OF CONTRACT. An action for money had and received, or for money paid, is founded on equitable principles; no privity of contract between the parties being required, except that resulting from circumstances showing an equitable obligation. [Ed. Note.-For cases in point, see Cent. Dig. vol. 35, Money Received, § 7-20; vol. 35, Money Paid, §§ 1-7.] 7. SAME-VESSELS-NON-LIEN OBLIGATIONS-ADVANCEMENTS. Where plaintiff discounted the draft of the master of a vessel, which he had no authority to draw, to obtain money to pay various obligations of the vessel, including the claim of the vessel's brokers for commissions and services, none of which items were required to be paid in order to permit the vessel to leave port, the brokers having no lien on the vessel therefor, plaintiff could not recover such advances against the owners in an action for money had and received. Appeal from Trial Term, New York County. Action by the Commercial National Bank of Chicago against Carl B. Sloman and another. From a judgment for plaintiff, and from an order denying defendants' motion for a new trial (102 N. Y. Supp. 931), they appeal. Modified and affirmed. Argued before PATTERSON, P. J., and LAUGHLIN, HOUGHTON, SCOTT, and LAMBERT, JJ. Everett Masten, for appellants. A. Henry Mosle, for respondent. HOUGHTON, J.. The defendants consigned for cargo from Hamburg, Germany, to ship brokers at New Orleans, a vessel owned by |