Page images
PDF
EPUB

from the police force until written charges shall have been made or preferred against him or them, nor until such charges have been examined, heard and investigated before the police commissioner or one of his deputies” upon notice. Rule 28, par. “m,” provides that the testimony offered for or against the accused shall be taken on oath, except where he admits his guilt, and the substance thereof shall be reduced to writing by the stenographer under the direction of the commissioner or commissioners hearing the case. Section 298 of the charter provides that a certified copy of the minutes or of any order or resolution of the police board shall be competent evidence, the same as the original.

It thus appears that at the close of the evidence the commissioners made an official record or order in writing, as required by law, in which it is recited that the removal was made upon the evidence, and from which it does not appear that the record of the relator was considered. It is now sought to impeach this record by the amended return. The general rule is that, where records of a board or body are required by law to be kept in writing, they are conclusive, so long as they stand unamended. People v. Zeyst, 23 N. Y. 140; Hal- · leck v. Boylston, 117 Mass. 469; Sawyer v. Railroad Co., 62 N. H. 135, 13 Am. St. Rep. 541. It is unnecessary to determine definitely now whether this record is of such a character that it could not be impeached by a return of the board made pursuant to an assignment of error in that regard in the petition, while its members remained the same, or by a return of members remaining in office. Here no error of this character was assigned in the petition, and the members of the board have ceased to be officials. The amended return was not required for the purpose of making the original return complete with reference to any matters of error assigned in the petition, nor is it confined to requiring the ex-officials to return their complete proceedings. Their official records and proceedings had all been returned. The amended return relates exclusively to matters not of record, and involving the operation of the minds of the commissioners. By analogy, the rule preventing the use of affidavits of jurors to impeach their verdict should be applied. Jurors, after they have been disbanded, and their official responsibility concerning a case has terminated, are not permitted to show that in arriving at their verdict they considered matters not properly before them as evidence. So we think here that these ex-officials cannot be permitted to show that they considered the record of the relator, which would invalidate their proceedings, when that fact is not discosed by their official proceedings recorded pursuant to the mandate of the statute. Therefore, without deciding any other question, we are of opinion that the amended returns should not be considered. The guilt of the relator was clearly established by the testimony adduced upon his trial. Consequently his removal was warranted. No other question requires special consideration.

It follows that the proceedings should be affirmed, and the writ dismissed, with $50 costs and disbursements. All concur.

and 114 New York State Reporter

PRINCE V. JAOOBS.

(Supreme Court, Appellate Division, Second Department. February 11, 1903.)

1. FRAUDULENT REPRESENTATIONS-REMEDY.

A lessee who has been induced to take a lease of a building by fraud. ulent representations as to the amount the rooms are rented for may

retain the property, and sue at law for damages. 2. LEASE-DEPOSIT AS SECURITY-FRAUDULENT REPRESENTATIONS.

A lease of a building being obtained by false representations of the lessor as to the amount the rooms were rented for, so that it was not binding on the lessees, and they having been dispossessed by him for nonpayment of rent after they had paid rent for some time, they, in an action for damages for false representations, are entitled to return of the deposit made as security for their performance of the conditions of the lease, as well as the difference between the rental of the premises as represented and as in fact existing, less what is due on the lease.

Appeal from trial term, Queens county.

Action by Herman Prince against Solomon Jacobs. From a judgment on a verdict for plaintiff, and from an order denying a motion for a new trial, defendant appeals. Affirmed.

Argued before GOODRICH, P. J., and BARTLETT, JENKS, and WOODWARD, JJ.

Herman Aaron, for appellant.
L. E. Miller, for respondent.

GOODRICH, P. J. On February 10, 1898, the defendant, who was owner of premises known as No. 1 Pitt street, borough of Manhattan, leased them to the plaintiff and his wife, by written lease, for a term of three years, at the yearly rent of $3,800, payable in advance monthly payments of $316.67. Plaintiff alleges that the defendant falsely and fraudulently represented to him and his wife that the premises were yielding rentals aggregating $410 per month, and that all the rooms were rented, whereas the rentals in fact amounted only to $365 per month, and the rooms could not be rented for a greater amount; that the defendant knew such statements to be false, and made them with intent to induce the plaintiff to execute the lease; that the defendant also fraudulently represented to them the contents of the lease; that they did not understand the English language; and that they were induced by such false representations, and in reliance thereon, to execute such lease. The lease contained a covenant that the lessees would pay the water rates and keep the premises in repair, and would deposit with the defendant $1,000 as security for the performance by the lessees of the covenants of the lease, upon which deposit the defendant agreed to pay interest; and the lessees deposited such sum with the defendant. Mrs. Prince assigned her claim to the plaintiff, who brings this action at law to recover damages. The defendant counterclaimed for damages to the premises done or suffered to be done by the lessees. The jury found a verdict for the plaintiff, for $1,066.66, and from the judgment entered thereon, and the order denying a motion for a new trial, the defendant appeals.

There was a sharp conflict of evidence as to the making of the representations by the defendant, the plaintiff affirming and the defendant denying the same. In a careful charge, the court submitted this question to the jury, who decided in favor of the plaintiff; and, after a careful examination of the testimony, we see no reason to disturb the verdict.

The defendant contends that immediately after the lessees went into possession they ascertained what the actual rentals were, and yet continued in possession for 18 months, and continued for 16 consecutive months to pay the rent in full, and did not demand the return of the deposit. The plaintiff introduced evidence to show that the defendant promised them that he would shortly sell the house, and return the deposit and the rent, with a bonus for their trouble. This statement was contradicted by evidence introduced by the defendant, but the verdict has established the truth of the plaintiff's evidence.

Three remedies were open to the lessees, one of which they could elect: First, they could, upon discovery of the fraud, rescind the contract absolutely, and sue at law to recover the consideration parted with; second, they could bring an action for the rescission of the contract, and in that action have full relief; third, they could retair. what they had received, and bring an action at law for the damages sustained. Vail v. Reynolds, 118 N. Y. 297, 302, 23 N. E. 301. In the case at bar the plaintiff has elected the last remedy.

But the defendant contends that the amount of the verdict is excessive, and that the court erred in permitting the jury to include the amount of the deposit. The lessees failed to pay the rent for July and August, 1899, and the defendant disposed them by summary proceedings. The court charged, under exception by the defendant, as follows:

"If the plaintiff is entitled to recover, the verdict should be for a sum of money which represents the damage that resulted to him by reason of these false and fraudulent representations. He is entitled to recover the amount of his deposit, and the loss which he sustained under his contract. Of course, you cannot go beyond the period during which the plaintiff was in the occupation of the premises, for the purpose of making out an assessment of damages. The lease, concededly, seems to have terminated eventually because he failed to pay the rent, and he had to go out, and was dispossessed, owing two months' rent."

We find no, error in this instruction. The $1,000 deposit was, by the terms of the lease, security for the lessees' performance of its conditions. But the verdict establishes the plaintiff's claim that the lease was obtained by false representations, and therefore was not binding upon the lessees. They became entitled, then, to the return of the deposit, and to the difference between the rental of the premises as represented and the amount of the actual rentals as they existed at the time of the execution of the lease. They occupied the premises about 18 months, and, the monthly difference being $45 for 18 months, they were entitled to recover $810, less the unpaid rent and 114 New York State Reporter for July and August, and, in addition, the amount of their deposit, with unpaid interest. This seems to be the basis upon which the jury estimated the plaintiff's damages, and we find no error therein. The judgment should be affirmed.

80 N.Y.S.--20

Judgment and order atfirmed, with costs. All concur.

(76 App. Div. 627.)

STAATS et al. v. STORM et al.

(Supreme Court, Appellate Division, Second Department. November 14, 1902.) 1. DEED-DELIVERY-SETTING ASIDE.

Where intelligent persons, having a vested remainder in premises. ineffectually attempted to be conveyed by a trustee to their mother, on the matter being thoroughly explained to them execute a deed of their interest to her, which is duly acknowledged, delivered, and recorded, such deed should not be set aside on an unsupported claim that it was de

llvered without authority. 2. TRUSTS-DEED IN CONTRAVENTION OF TRUST-ESTOPPEL.

Where a deed is made by a trustee in contravention of the trust, a beneficiary of the trust is not estopped from attacking the conveyance because his release to the trustee was an inducement to the trustee to

make the deed. 3. Trust Estate-Money ADVANCED TO PROTECT_EQUITABLE LIEN.

Where the money of mortgagees was advanced in good faith to the mortgagor, who was grantee in a deed from a trustee void because in violation of the trust, and was used in improving and protecting the trust estate and in saving and increasing the value of the property, the interests of the cestui que trust and remaindermen are subject to an

equitable lien in favor of the mortgagees for the money so advanced. Appeal from special term, Kings county.

Action by John Staats, as trustee, and Harmin V. Storm and others, infants, against Sarah A. Storm and others. From a judgment in favor of defendants, plaintiffs appeal. Affirmed.

By the will of Sarah Storm the premises in controversy were left to a trustee to collect the income, and pay over to her son Harmin V. Storm during his life, and then to transfer the property to his children. With a view of selling the property, Harmin V. Storm and the children joined in a warranty deed to his wife, Sarah A. Storm. He executed a release to the trustee, and the trustee executed a deed to Sarah A. Storm. She then borrowed money, which she used in protecting and improving the property, and executed a mortgage on such property to secure the payment of such loan. The object of the suit was to cancel such deeds and mortgages.

The following is the opinion of SMITH, J., at special term:

That the deed of the trustee to Sarah A. Storm is void against the interests of the contingent remainder has been already decided in the case of Storm v. Remsen, 11 App. Div. 630, 42 N. Y. Supp. 1133, on appeal, 160 N. Y. 693, 55 N. E. 1101. The children of Harmin V. Storm had vested estates in remainder in the premises attempted to be conveyed by the trustee to their mother, and such estates were alienable by them. They asked to have their conveyance to their mother set aside on the ground that it was delivered without authority. This contention has but little support in the evidence. They are intelligent people. The whole matter was thoroughly explained to them. It was the desire of the whole family that the mother should have the title to the property, and it is incredible that their deed to her was recorded and acted upon after it was executed and acknowledged by them without their consent. The deed of their interests was duly executed, acknowledged, delivered, and recorded, and should not be set aside. The deed of Harmin V. Storm to his wife was ineffective, because he has no estate in the property attempted to be conveyed by him. It is claimed that he is estopped from attacking the conveyance of the trustee to his wife because the release executed by him to the trustee was an inducement to him to make a conveyance. The deed, having been made under contravention of the trust, was absolutely void against Harmin V. Storm. I do not think the statute should be nullified by making the deed unassailable under the doctrine of estoppel. In re Brennan, 21 App. Div. 236, 47 N. Y. Supp. 661.

The only remaining question is, what are the rights of the mortgagees in the premises? Their money was advanced in good faith, and was used in improving and projecting the property and the estate, and to a certain extent saring and increasing the value of the property. Under well-established rules of equity, I think the interest of the cestui que trust and contingent remaindermen are subject to an equitable lien in favor of the mortgagees for moneys advanced by them to preserve and permanently improve the property and enhance its value. Thomas v. Evans, 105 X. Y. 605, 12 N. E. 571, 59 Am. Rep. 519.

Judgment in accordance with this memorandum to be settled on five days notice.

Argued before GOODRICH, P. J., and BARTLETT, JENKS, WOODWARD, and HIRSCHBERG, JJ.

Edward A. Alexander, for appellants.

Hitchings, Pallisser & Moen, George C. Case, and David F. Manning, for respondents.

PER CURIAM. Judgment affirmed, with costs, on the opinion of SMITH, J., at special terin.

In re COLLIS, Commissioner of Public Works.

DIGNEY et al. v. CITY OF NEW YORK.

(Supreme Court, Appellate Division, Second Department. February 11, 1903.) 1. MUNICIPAL CORPORATION3-COMMISSIONERS OF APPRAISAL-COMPENSATION

SERVICES-PROOF.

Under Laws 1897, c. 713, providing that commissioners of appraisal in proceedings to acquire real estate in connection with the water supply of the city of New York "shall receive as compensation the sum of $10 per day for each day actually employed," on an application to tax the fees of such commissioners, their affidavit that they were so actually employed a certain nuniber of days is prima facie evidence of that fact, and is not rebutted by an affidavit of the corporation counsel that he has no facts in his possession to enable him to determine whether this alle. gation is true or not, except that it appears from the stenographer's minutes that they met a certain number of times, less than the number of days stated in their affidavit.

Goodrich, P. J., dissenting.
Appeal from special term, Westchester county.

Application of John M. Digney and others for taxation of their fees as commissioners of appraisal in proceedings to acquire real estate

« PreviousContinue »