was made under the supervision of John Brown, the contractor, and, in addition to showing the value of such work and materials to be $29,252.51, also showed the amount paid Brown, viz. $19,171.54, and, after deducting ten per cent., found a balance due of $7,155.72. This pretended estimate is all in the handwriting of one Carroll, clerk of the contractors, and has across its face the name of "W. P. Regan," signed by the architect. This estimate purports, on its face, to be "an approximate estimate for work done on Waterford school to date." When made, the paper was handed by the architect to John Brown, who took it on the same day, November 15th, to the chairman of the building committee, Mr. Ford, who immediately expressed dissatisfaction, and declared the estimate grossly excessive, and refused to pay more than $3,500 thereon. Such sum was paid to and received by Brown, and the paper left with Ford for the plaintiff. This seems to have been a settlement of this dispute without the intervention of arbitrators. It is shown upon the trial that this estimate was, as stated by the building committee to Brown, grossly excessive; that the error was so great as to characterize it as made in bad faith, and fraudulent; that, instead of the value of the work and material being $29,252.51, its value was not, in fact, over $21,058.91. After receiving the $3,500 on this estimate from the building committee, Brown returned to the architect Regan, and procured from him another paper, similar in all respects to the one left with the building committee, except, across its face, was written by Regan: "The above is approved by George C. Adams and W. P. Regan, architects. Per W. P. Regan, Lawrence, Mass.' This was signed by Regan, at Brown's solicitation, after being told of the conclusion of the building committee, and of the refusa' to pay the full sum of $7,155.72, and so signed to enable said Brown to procure the money elsewhere, and not for the information of either the plaintiff, its building committee, or the contractors, or to enable the contractors to procure money from the plaintiff under the terms of the contract. It cannot be claimed, nor does the counsel for the bank claim, that such a purpose (the issuing of estimates to procure n:oney elsewhere) was contemplated by the parties, in the language of the contract, or through any dealings between them thereunder. This second paper was taken by Brown to the defendant the Richfield Bank,-a long distance from Waterford,-on the 17th of November, 1891, after the contract had in fact been abandoned, and used with said bank as collateral security to a note, and a loan of $3,500 was procured from the bank thereon. The bank made no inquiry of any one but Brown; had no knowledge of the terms of the contract, or of the authority of the architect, or the reasons of refusal of payment by plaintiff. The plaintiff knew nothing of this transaction, and was ignorant of the acts and intentions of the architects and said Brown respecting the second paper. It is under this state of facts that the bank now claims that the plaintiff is estopped from denying that it owed this $3,500 to Brown on November 15, 1891. In the hands of the contractors, it needs no argument to convince that this paper, purporting to be an estimate, would have been valueless as the basis of a claim against the plaintiff. The architects' estimate is not conclusive, under the terms of this contract, even when honestly made; and when it purports, simply, to be an "approximate" estimate, it does not profess to fix the exact amount; and when the "approximate" estimate is made in bad faith, evidenced by mistakes so gross as, in this case, to characterize the estimate as a fraudulent one, it is sufficient to destroy it, for any purpose, in the hands of the contractors. Kihlberg v. U. S., 97 U. S. 398; U. S. v. Robeson, 9 Pet. 319; Smith v. Briggs, 3 Denio, 73; McMahon v. Railroad Co., 20 N. Y. 464; Smith v. Brady, 17 N. Y. 174; Butler v. Tucker, 24 Wend. 447; Whiteman v. Mayor, etc., 21 Hun, 118. As an "award," the essential elements are lacking,-authorization, exactness, and honesty. In the hands of the defendant the Richfield Bank, it is difficult to see how this paper can have greater value than if possessed by the Browns, or how the principle of equitable estoppel can be invoked in its aid. When a person has made a deliberate statement with a view to induce another to act, he may not be at liberty to deny the statement so made; but it must be a statement to, or some neglect of duty to, the person led into that belief, or, what comes to the same thing, to the general public, of whom the person is one, before the

benefit of the doctrine of estoppel can be claimed. When the declaration or statement is not made to the person directly, it must have been made under such circumstances as to indicate that it was intended to reach third persons, or the community at large; and the person claiming the benefit of the principle must show that he has acted, in the transaction in which he was deceived, with ordinary caution. The plaintiff here made no statement to the bank directly, nor any statement to the general public. It did not clothe the architect with any authority to make any statement to any third person, or to the public at large. It is not contemplated by the contract, or by any previous dealings between plaintiff and the contractors, that the estimates should be put upon the market, or be used as negotiable paper or as security, or that they should be dealt with in any manner by the public, or by any member of it. These estimates were simply to be used as the measure of money to be handed out from the school-board treasury, monthly, to the contractors, on presentation, when the correctness of the estimate was not disputed. These estimates were never intended to influence the conduct of any outsider; and any such made and paid out by the aid of the architect was unauthorized, and not the act or declaration of the plaintiff. In Mechanics' Bank v. New York & N. H. R. R. Co., 13 N. Y. 600, certificates of railroad stock issued by the transfer agent of the company were held not to partake of the character of negotiable instruments, and must be taken subject to all equities existing against the assignor, and as to such the doctrine of estoppel in pais was not applicable. The same was held respecting a chose in action, not negotiable, in Bush v. Lathrop, 22 N. Y. 535. The same, in effect, is held in Bank of Batavia v. New York, L. E. & W. R. Co., 106 N. Y. 195, 12 N. E. Rep. 433. This was a delivery, by the agent of a common carrier, of a bill of lading. The court places great stress upon the fact that bills of lading, not stamped "Nonnegotiable," were declarations by the common carrier to the general public, and any person might safely rely upon the statements therein contained; that this was so understood by the common carrier, and by the consignor and by the business world. And it was because of this recognized element in bills of lading that the court held that the principle of estoppel applied when these fell into the hands of innocent parties. The reasoning of Selden, J., in Farmers' & Mechanics' Bank v. Butchers' & Drovers' Bank, 16 N. Y. 141, is to the same effect. Statements may be made by a party, which are not intended to influence the actions of others, or intended to be communicated to them, and in such case the doctrine does not apply. See Reeves v. Kimball, 40 N. Y. 311; Mayenborg v. Haynes, 50 N. Y. 675. Here it was held that a declaration of A. to B., not made for the purpose of being communicated to C., constitutes no estoppel, although C. hears of it, and acts upon it. To the same effect is Maguire v. Selden, 103 N. Y. 642, 8 N. E. Rep. 517. It was here held: "However understood, could not be extended beyond the party to the transaction in relation to which they were made." It is unnecessary to continue citations of cases in the courts. The bare statement of the facts is sufficient, when once the principle of estoppel, here invoked, is clearly understood. Without doubt the Bank of Richfield must stand in the shoes of its assignor of this chose of action, and hold the claim subject to all the defenses and equities which might be urged against the Browns. That the other defendants can have no claim against the plaintiff, since it was found that there was nothing due the Browns at the time of the abandonment of the contract, is too plain for argument. They possessed no legal or equitable claim upon this sum in the hand of the plaintiff, all of which was required to complete the building. They made no contract with plaintiff, and must be relegated to the persons with whom they dealt,the contractors, John and Charles Brown.

The plaintiff contends that it should not be chargeable with interest or costs. The justice of this claim I do not fully see. Nor do I regard the nature of this action so far a presentation of equitable claims as to be addressed to the equity side of the court, wherein costs may be a matter of discretion; and, if it were, I see no propriety or justice in the retention of the money which should have been promptly paid for the completion of the building. The facts of this case do not press the court, with any considerable

Sup. Ct.]

PEOPLE v. BOARD OF SUP'RS.

force, to the conclusion that plaintiff was justified in not paying over the money to Cunningham promptly, and in accordance with the terms of the contract. This might have been done safely, and it was clearly plaintiff's duty to have done it. In no respect is Cunningham at fault, and why he should suffer this delay, and lose both interest and cost, after a long and expensive struggle, is not quite plain; and the justice of this claim of plaintiff does not gain weight upon reflection that really there has been nothing to struggle over. The whole claim of Cunningham has been conceded from the beginning, except the amount; and a proper resort to the contract and the architect at the time might have obviated any disagreement, and the amount have been promptly determined through means in plaintiff's reach. The delay caused by plaintiff to the completion of the building was, in the The plaintiff was called upon to light of this trial, wholly inexcusable. decide, and to act promptly. It had open to it two courses. It might declare the contract forfeited, and assume the completion itself, or it might recognize the contract as continuing, and accept the offices of the surety, or accept the assignment as satisfactory, and recognize him. It did neither. Cunningham acted only the part of a prudent man, spending so much time in seeking recognition, and seeking so to avoid the peril of doing his work for nothing. This delay must be charged to plaintiff, and, since it was sufficient to excuse the delay in completion of the building beyond April 1st, it must be sufficient to relieve from the stipulated forfeiture.

JJ.

Argued before MAYHAM, P. J., and PUTNAM and HERRICK,

C. C. Ormsby, (J. W. Houghton, of counsel,) for appellants. James W. Verbeck, for appellants First Nat. Bank of Richfield, Williams & Manogue, and Henderson.

Smith & Wellington, (Edgar T. Brackett, of counsel,) for respondents.

HERRICK, J. From an examination of the evidence in this case, I am satisfied that there is evidence tending to establish the facts found by the trial court, and I do not feel that I would be justified in saying that such facts are not supported by the evidence in the case. The facts found by the court not being disturbed, the conclusions of law found naturally follow. The opinion of the trial court is, in the main, satisfactory, and I see no reason to write another.

Judgment should be affirmed, with costs. All concur.

(70 Hun, 560.)

PEOPLE ex rel. CROUSE v. BOARD OF SUP'RS OF FULTON COUNTY. (Supreme Court, General Term, Third Department. July 8, 1893.)

1. MANDAMUS-PROCEDURE.

Relator procured an order at special term directing the county board of supervisors to convene and allow and provide for the payment of a judgment held by relator, or that they show cause at a special term named why such "order or mandamus" should not be made peremptory. Held, that the order was merely one to show cause why a mandamus should not be granted, and it need not comply with the statutory requirements applying to the alternative writ.

2. SAME-ORDER TO SHOW CAUSE.

The issuance of such an order, to be followed on the return day, if it has not been complied with, and there is no dispute as to facts, by a peremptory mandamus, is a proper practice.

3. SAME-COUNTY OF ISSUANCE.

If the application for a mandamus is made in the proper county, an order to show cause against its issuance may be granted by a judge at special term in any part of the state, provided the order is made returnable at a special term held in the district embracing the county wherein an issue of fact joined upon the alternative writ would be triable.

4. COURT OF SESSIONS-JURISDICTION.

Code Crim. Proc. c. 2, § 39, gives the court of sessions jurisdiction to hear and determine appeals in respect to bastards. Section 873 directs that the costs on appeal be awarded to the person in whose favor the appeal is determined, and directs the manner of paying costs when awarded against the overseer of the poor of a town not liable for the support of its own poor; while section 874 directs that in other cases payment of costs may be enforced by the court as in civil actions. Laws 1886, c. 155, § 3, provides that towns in the county of Fulton shall be liable for the support of their own poor. Held, that the court of sessions has power to enter a civil judgment for costs on appeal in a bastardy case against a town in such county.

5. MANDAMUS-PAYMENT OF JUDGMENT AGAINST TOWN.

Under 2 Rev. St. pp. 474, 475, c. 8, §§ 102, 103, (4 Rev. St., 8th Ed., p. 2685,) providing for the payment by the county board of supervisors of a judgment against a town, where the board fails to make provision for payment as therein provided, it is proper, after due notice, to issue a mandamus to compel satisfaction by the board.

Appeal from special term, Montgomery county.

Mandamus on the relation of Orville Crouse to compel the board of supervisors of Fulton county to pay a judgment against the town of Johnstown in said county. From an order denying the application, relator appeals. Reversed.

JJ.

Argued before MAYHAM, P. J., and PUTNAM and HERRICK,

Frank B. Towman, for appellant.

Smith & Nellis, (Andrew J. Nellis, of counsel,) for respondent.

HERRICK, J. In an action or proceeding prosecuted by the overseer of the poor of the town of Johnstown, Fulton county, against the relator, Orville Crouse, in the court of sessions of Fulton county, a judgment was recovered in favor of Crouse against the town of Johnstown for costs in the sum of $170.75. The said judgment, or a certified copy of the docket thereof, was duly presented to the board of supervisors of Fulton county for audit, allowance, and payment; but such board of supervisors adjourned sine die, without in any wise acting upon such judgment. The relator thereafter applied to a special term of this court, held in the county of Herkimer on the 10th day of January, 1893, and procured an order directing the board of supervisors of the county of Fulton to convene in session, and audit and allow and provide for the payment of such judgment on or before the 21st day of January, 1893, or that they show cause at a special term of the court, appointed to be held at chambers in the city of Amsterdam, Montgomery county, on the 24th day of January, 1893, why such order or mandamus should not be made peremptory. The board of supervisors demurred to the order obtained at the Herkimer county special term.

The same came on to be heard at the special term held in

Montgomery county on the 24th day of January, 1893, and upon such hearing the learned justice holding the term held that the papers failed to show that the relator was entitled to relief, and denied the application for a mandamus. No objection was made that a mandamus was not the proper remedy for the relief sought by the relator. The objection, however, was raised by the defendants that the order granted by. the Herkimer county special term was in itself an alternative mandamus; that the special term had no right to grant it; that it was made returnable in too short a time, and that it was not under the seal of the court. It was, however, properly regarded, I think, by the learned justice holding the Montgomery special term, merely as an application for a mandamus. While the order granted may perhaps be criticized as to form, and while it speaks of itself as an "order or mandamus," still I think that in substance it was an order to show cause why a mandamus should not be granted. Section 2067, Code Civil Proc., provides that an alternative writ of mandamus may issue upon an affidavit or other written proof, and either with or without previous notice. A practice has grown up, based upon the common-law practice of applying to the court or a judge in chambers, upon petition or affidavit, for an order requiring the person, officer, or board to whom it is directed to do the thing asked for by the relator, or to show cause at a special term why a mandamus should not issue compelling the person, officer, or board to do the thing specified in the order; then upon the return day, if the thing has not been done, and there is no dispute as to the facts, a peremptory mandamus is issued in the form required by the Code. If the facts are disputed, an alternative writ of mandamus is granted in the form and manner and returnable as prescribed by chapter 16, tit. 2, art. 4, Code Civil Proc. This practice is convenient. The order to show cause takes the place of, and is in fact, a notice, and in many instances results in bringing the controversy to a termination much quicker than if an alternative mandamus was issued in the first instance, returnable in 20 days after the service thereof, as required by section 2072, Code. This practice enables parties to move promptly to obtain the relief they seek. It affords the party proceeded against an opportunity to comply with the demands of the relator if he has no defense in fact or law, and is, I think, a compliance with that portion of section 2067 of the Code which says that an alternative writ may be granted "either with or without previous notice of the application, as the court think proper." If upon the hearing of such order to show cause there is no dispute as to the facts, but simply a question of law, and a peremptory mandamus is issued, I think it comes within section 2070 of the Code; the order to show cause having fulfilled all the offices of, and being in fact, a notice of the application. While the order to show cause herein was granted by a judge, and at a special term, out of the district embracing the county wherein an issue of fact joined upon the alternative writ of mandamus would be tried, still it is made returnable at a special term, in the proper