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and 140 New York State Reporter Subdivision "e" of section 70 of the present bankruptcy act is as follows:
“The trustee may avoid any transfer by the bankrupt of his property which any creditor of such bankrupt might have avoided, and may recover the prop erty so transferred, or its value, from the person to whom it was transferred, unless he was a bona fide holder for value prior to the date of the adjudication. Such property may be recovered or its value collected from whoever may have received it, except a bona fide holder for value.”
The Court of Appeals has recently held that the present bankruptcy act arms the trustee in bankruptcy with the right to assert the invalidity of an unfiled chattel mortgage in favor of the creditors of the mortgagor, even though their claims are not in judgment. Skilton v. Codington, 185 N. Y. 80, 77 N. E. 790. There is a further consideration regarding this defense. The following allegation appears in the complaint:
“Plaintiff further alleges upon information and belief that there was no consideration whatever passing from said defendant William F. Pillmore to said defendant Sheridan J. Jones for said alleged bill of sale."
In the prayer of the plaintiff for relief, the pleader seems to have based the plaintiff's claim for relief upon the ground that the bill of sale was fraudulent and void against the plaintiff. Although counsel have not argued the case upon that theory, it seems to me that the complaint may fairly be treated as the ordinary creditors' bill to set aside a transfer of the judgment debtor fraudulent against his creditors. In that view of the case the lien created by the commencement of the action was void under the bankruptcy act, and, under the provisions of the bankruptcy act already referred to and under section 7 of article 1 of the personal property law (Laws 1897, p. 509, c. 417), being chapter 47 of the General Laws, the sole right to maintain an action for the benefit of the creditors resides in the trustee in bankruptcy.
The demurrer is overruled, with costs.
(121 App. Div. 457.)
MCKANE v. WILLIAMSON et al. (Supreme Court, Appellate Division, Second Department. October 4, 1907.) CONTRACTS-BUILDING CONTRACT-Issues, Proof, VARIANCE.
Under a complaint alleging that defendants contracted with plaintiff for him to furnish materials and labor and to erect buildings pursuant to plans by them provided, and that, in accordance therewith, he furnished material consisting or brick, lime, etc., and other building material, and furnished labor and completed the buildings at the agreed price, and value of a sum named, evidence was admissible that plaintiff was to be compensated on a basis whereby he was to receive, in addition to their cost to him, 50 cents a day for each man employed, 50 cents a 1,000 for brick used, etc., and to show the number of men employed in the work, the number of days each worked, the number of brick used, etc., and was
not subject to the objection of variance. Appeal from Trial Term, Kings County.
Action by Theodore McKane against S. Stryker Williamson and others. Judgment for defendants, and plaintiff appeals. Reversed, and a new trial granted.
Argued before HIRSCHBERG, P. J., and HOOKER, RICH, MILLER, and GAYNOR, JJ.
Frederick W. Sparks (Leonard J. Reynolds, on the brief), for appellant.
Jerry A. Wernberg, for respondents.
RICH, J. The question to be determined involves a consideration of the second and third subdivisions of the complaint, which are as follows:
“(2) That on or about the 1st day of April, 1892, these defendants entered into a contract or agreement with this plaintiff for him to furnish materials and labor as a mason builder and to erect said buildings pursuant to plans by them provided, and to pay him for the said materials and labor as the work progressed.
“(3) That this plaintiff entered into the performance of his duties as such contractor and builder, and between the said 1st day of April, 1892, and the 1st day of September, 1892, he furnished material consisting or brick, lime, cement, sand, and other building material, and furnished labor and completed said buildings and appurtenances thereto pursuant to his agreement, at the agreed price and value of $21,061.85."
Upon the trial, the plaintiff proved an oral contract made with the defendant McKane in the presence of the defendant Williamson (it being alleged that the defendants were copartners in the construction of the buildings to recover for the erection of which this action was brought), in substance, that plaintiff was to furnish the labor and materials for the construction of the buildings and be paid therefor, in addition to their cost to him, 50 cents a day for each man employed on the work, 50 cents a thousand for brick used, 15 cents a barrel for Rosedale and 10 cents a barrel for Portland cement used, the aggregate of which amounts represented his profits. After making this proof, he attempted to show the number of men engaged in the work and the number of days each worked, and the number of brick and barrels of cement used, as the basis for his recovery. This evidence was objected to as immaterial and irrelevant, the objections were sustained and exceptions to the rulings duly taken. He then asked to amend his complaint in such manner as to permit the admission of this evidence. This was denied, the trial court holding that such amendment would permit recovery for a cause of action different from the one alleged.
I think the evidence was admissible under the allegations of the complaint. The fact that, in order to establish the amount that the plaintiff was entitled to recover under his contract, it became necessary to prove the various items upon which his compensation was based, did not constitute a cause of action different from that alleged in the words:
"He furnished material consisting of brick, lime, cement, sand and other building material, and furnished labor and completed said buildings and appurtenances thereto pursuant to his agreement, at the agreed price and value of $21,061.85."
The only variance of the proof offered and excluded from the allegations of the complaint would be the possibility that the aggregate would not be the same, which would be an immaterial variance. The contract had been proven, with the exception of the amount which un
and 140 New York State Reporter der its provisions the plaintiff was entitled to recover. The essential elements of furnishing the labor and materials required and completing the buildings in accordance with the plans furnished him by the defendants having been established, the aggregate amount of his recovery, although based upon 50 cents a day for each man employed, 50 cents a thousand for brick used, and 15 and 10 cents per barrel, respectively, for cement used, was yet within the allegation of his pleading, for the aggregate constituted the "agreed price and value." The theory upon which the action was tried, viz., that the defendants had plans for the construction of the buildings which the plaintiff agreed to and did follow and comply with, that he furnished the necessary labor and materials and fully performed his contract, thereby becoming entitled to recover, as the amount agreed to be paid him, sums amounting in the aggregate to the sum alleged, was within the averments of the complaint, and the exclusion of this evidence presents reversible error.
The judgment should be reversed and a new trial granted, costs to abide the event. All concur.
(121 App. Div. 415.)
CENTRAL BANK OF WESTCHESTER COUNTY V. SHAW et al. (Supreme Court, Appellate Division, Second Department. October 4, 1907.) 1. Towns-CLAIMS AGAINST Town-AUDITING BOARDS.
A town clerk having presented his claim against the town to the town auditors, who at a regular meeting by a resolution, entered upon the records, allowed the claim at a certain amount. The resolution came to the office of the town clerk, where it was open to the inspection of the inhabitants of the town. On the same day A., acting as town clerk, certified that his bill against the town for the amount named in the resolution was audited by the town auditors, and this certificate, containing the statement, "not good unless countersigned by," was signed by all the town auditors and delivered to the supervisor of the town, who wrote upon it "Accepted," and signed his name. Held, that this was a sufficient audit and allowance of claim under Town Law, Laws 1897, p. 663, c. 569, § 162, as amended by Laws 1906, p. 1393, c. 505, defining the duties of town boards in auditing accounts, and made applicable by Town Law,
Laws 1890, p. 1236, c. 569, § 174, as amended by Laws 1896, p. 33, c. 85. 2. SAME-EFFECT OF ALLOWANCE BY AUDITING BOARD.
Where a board of town auditors empowered by Town Laws, Laws 1897, p. 663, c. 569, $ 162, as amended by Laws 1906, p. 1393, c. 505, defining the duties of town boards in auditing accounts, and made applicable by Town Laws, Laws 1890, p. 1236, c. 569, § 174, as amended by Laws 1896, p. 33, c. 85, where town auditors perform the duties of town boards in auditing accounts, to audit and allow claims against the town, proceeding in substantial conformity with the statute, audited and allowed a
claim, they cannot by subsequent action disallow it. 3. SAME.
Boards of town auditors, which derive their power solely from the statute, and whose members act in a semijudicial capacity, exhaust their authority under the statute and are without power to reconsider, revise, review, or annul their own judicial action after it has once been legally exercised. Appeal from Westchester County Court.
Action by the Central Bank of Westchester County against James J. Shaw, the town of White Plains, and another to recover on a
claim against the town of White Plains. From a judgment for plaintiff, defendant the Town of White Plains appeals. Affirmed.
Argued before HIRSCHBERG, P. J., and WOODWARD, HOOKER, and RICH, JJ.
John M. Digney, for appellant.
HOOKER, J. The defendant Shaw was the town clerk of the town of White Plains, and, as such, had performed certain services for which he claimed he was entitled to the sum of $588 from the town. On the 17th day of November, 1904, he presented a bill for such services to the board of town auditors of the town, and on the 25th day of November, 1904, at a regular meeting of the board of town auditors, a resolution was passed unanimously, and entered upon the records of the proceedings of the board, in this language:
"Resolved that the bill of J. J. Shaw, Number 56, be allowed at the sum of $588; all voting in affirmative and allowed.”
And this resolution was signed by all three members of the board. The resolution so reduced to writing and signed by the members of the town board, being part of the record of the meetings of the board, found its way into the office of the town clerk, and while there was, of course, open to the inspection of the inhabitants of the town. On or about the same day the defendant Shaw, acting as town clerk, made a certificate by which he certified that his bill against the town of White Plains for $588 was audited November 25, 1904, by the board of town auditors at the sum of $588. This certificate he signed. On that certificate appeared the statement, "Not good unless countersigned by," which was signed by all three of the town auditors. The defendant Thompson was then the supervisor of the town, and this certificate was evidently delivered to him, for he wrote on it, "Accepted November 25, 1904,” and signed his name. On the 2d day of February, 1905, two members of the board of town auditors signed a certificate at the end of an abstract of accounts audited by the board of town auditors at their annual meeting November 17, 1904. The certificate, in effect, stated that they certified the foregoing to be an abstract of the names of all the persons who had presented accounts to be audited, the amounts claimed by each person, and the amount finally audited by the board of town auditors at their annual meeting, beginning November 17, 1904. In this abstract the account in question appears as follows:
"No. 56, bill of James J. Shaw, assigned to Central Bank, Westchester Co., services rendered, town clerk's services, claimed $588, disallowed.”
This abstract, with the certificate, was delivered to the supervisor of the town. It does not appear that a duplicate of the abstract of accounts audited by the board of town auditors, to which was attached the certificate, was ever filed in the office of the town clerk. On the 25th day of November, 1904, the defendant Shaw assigned to the plaintiff his claim against the town of $588, for which the plaintiff paid him in cash the face of that claim, less a certain discount.
Section 162 of the town law (Laws 1897, p. 663, c. 569, as amended
and 140 New York State Reporter by Laws 1906, p. 1393, c. 505) defines the duties of town boards in auditing accounts, and this section is made applicable by section 174 of the town law (Laws 1890, p. 1236, c. 569, as amended by Laws 1896, p. 33, c. 85), where town auditors have been elected and perform the duties of town boards in auditing accounts. The section reads:
"The meeting of the town board held on the Thursday preceding the annual meeting of the board of supervisors, shall be for the purpose of auditing accounts and allowing or rejecting all charges, claims and demands against the town. If any account is wholly rejected, the board shall make a certificate to that effect, signed by at least a majority of them, and file the same in the office of the town clerk. If the account is allowed, wholly or in part, the board shall make a certificate to that effect, signed by at least a majority of them, and if allowed only in part, they shall state in the certificate the items or parts of items allowed, and the items or parts of items rejected, and shall cause a duplicate of every certificate allowing an account, wholly or in part, to be made. One of which duplicates shall be delivered to the town clerk of the town, to be kept on file for the inspection of any of the inhabitants of the town; and the other shall be delivered to the supervisor of the town, to be by him laid before the board of supervisors of his county at their annual meeting. The board of supervisors shall cause to be levied and raised upon the town the amount specified in the certificate, in the same manner as they are directed to levy and raise other town charges."
The first question which should be determined is whether or not there had been a legal audit and allowance of Shaw's claim prior to the time he assigned to the plaintiff. That the members of the board of town auditors unanimously agreed that the claim should be allowed is not open to dispute, for the resolution signed by them is to that effect, but the statute requires that, if the account is allowed, the board shall make a certificate to that effect, and it shall cause a duplicate of every certificate to be made, one to be delivered to the town clerk, to be kept on file for the inspection of the inhabitants of the town, and the other to be delivered to the supervisor of the town, to be by him laid before the board of supervisors at their annual meeting. I think that the resolution signed by the town auditors may be construed to be a certificate by them to the effect that the account was allowed. The statute does not prescribe the form which such certificate must assume, and the resolution complies with all that is ordinarily taken to be understood by the term. It was to the point and unequivocal that Shaw's bill be allowed, the amount of the allowance was named at $588, and the result of the vote was given, all voting in the affirmative. If more were needed, it is to be found in the reference to the bill contained in the certificate, namely, No. 56, and bill No. 56 was filed, and specified distinctly what the services were for. The certificate was also filed with the town clerk because it became a part of the record of the proceedings of the board of town auditors, which record belonged in the town clerk's office, and was certainly open to the inspection of any inhabitant of the town. I think, too, that the certificate made by Shaw himself, dated November 25, 1904, may be construed to be the certificate of the town auditor; for the certificate was full and explicit, containing the name of the claimant, the amount claimed, the fact that the claim was audited, the day on which this was done, the persons by whom it was done, and the