« 이전계속 »
the same owners, with the names written in the same way substantially, except that the Catherine M. Crozier lot is shown as owned by Catherine Crozier and Frances M. A. Golding, the Michael Lennan lot by Catherine Crozier and Frances M. A. Golding, the Owen McCarthy estate lot by Daniel McCarthy, the Kate Ahearn lot by James and Kate Ahearn, the Josiah G. Salisbury lot by Joseph Salisbury, and the Ann Connery lot by Mrs. McDonald, and except that Michael Conners and John L. Henning estate appear as lot owners. It also shows that Catherine Crozier and Frances M. A. Golding own two lots, that John C. Harris owns three, the John L. Henning estate two, and the other persons named thereon one each. It appears that the John L. Henning estate property was assessed on State street in 1907, and it is probable that the Michael Conners lot, then owned by Thomas P. and Hattie M. Bonney, was assessed on Vermont street. If these owners be added to the 16 on Granite street, shown by the assessment roll for that year, the result will be 18 owners of property on that street in 1907.
 The 1907 petition was for a sewer "in and along Granite street to Alger, through Alger to Clinton, and down Clinton to Van Dam, to connect with the Van Dam street sewer," and was signed by Stephen Buckley, Catherine Crozier and Frances Golding, D. H. Noonan and M. Noonan, Mary Clarey, Mary J. Carey, P. Š. Farrell, D. F. McCarthy, Fitzgerald Adm., and Thomas Bonney, 9 property owners, considering each property by itself. The assessment roll for 1907 showed the Owen McCarthy estate as the owner of a lot. It is likely that this is the lot for which D. F. McCarthy signed, but his right to so do does not appear. And “Fitzgerald Adm.” cannot be counted as a signature, for the reason that the will of the decedent showed that that lot was owned by decedent's widow and his two sons. This leaves seven valid signatures to the 1907 petition.
 It is claimed that the 1906 petition may be considered in aid of this. That was for a sewer "in and along Granite street, between Alger street and Greenfield avenue.” Considering that each street is made an assessment district, it seems to me that this may be done, and especially so since there is no evidence that assessments were increased by the fact that the outlet was through Clinton street, instead of Greenfield avenue. That petition was signed by Mary J. Carey, Mary J. Redwood, Patrick Fitzgerald, Alice Reagon, D. H. Noonan, James P. Fitzgerald, Catherine Crozier, and Martin Ahearn, eight in all But Mary J. Redwood and James P. Fitzgerald did not own on the street, Catherine Crozier, D. H. Noonan, and Mary J. Carey signed the 1907 petition, and Alice Reagon, along with Daniel P. Reagon, her husband, then owned the lot for which Thomas Bonney signed in 1907, and which at the time of the map belonged to Michael Conners, leaving two names, Patrick Fitzgerald and Martin Ahearn, to be added to the seven valid signatures on the 1907 petition, making 9 in all, not a majority of the owners of the property on the street.
 The petition being insufficient, the situation was the same as if there had been no petition. But this is not fatal because, as we have seen, the commissioners were authorized to proceed without a peti
tion. The Legislature may and frequently does authorize local authorities to make improvements of this character without any petition or consent of property owners. Mansfield v. City of Lockport, 24 Misc. Rep. 33, 52 N. Y. Supp. 571, citing People ex rel. Holler v. Board, etc., of Albany, 2 How. Prac. (N. S.) 423; Genet v. City of Brooklyn, 99 N. Y. 296, 1 N. E. 777; Spencer v. Merchant, 100 N. Y. 858, 3 N. E. 682; Van Deventer v. Long Island City, 139 N. Y. 133, 34 N. E. 774.
 It is claimed, in the second place, that the proceeding was irregular and void, because notice was not given to the lot owners in accordance with section 264 of the Village Law. That section requires 10 days' notice of time and place of hearing to persons owning land on the line of a proposed sewer, before action may be taken on a petition therefor. It is plaintiff's theory that such notice was required here, under the provisions of section 340 of the Village Law (Laws 1897, c. 414). Section 340 provides that:
"A village incorporated under and subject to a special law, and each officer thereof, possesses all the powers and is subject to all the liabilities and responsibilities conferred or imposed upon a village incorporated under this chapter, or upon an officer thereof, not inconsistent with such special law.”
The act under which this proceeding was conducted does not require such a notice, but it does require the commissioners to give a notice of one week in a daily paper of the village, upon the completion of an assessment, of a time and place for the hearing of grievances. This was given. In fact, it was given twice, and plaintiff appeared at the second hearing
[6, 7] The Legislature could not dispense with all notice, but had the right to prescribe the kind of notice and the mode of giving it. Stuart v. Palmer, 74 N. Y. 183, 30 Am. Rep. 289. And, as we have seen, the act authorizes the commissioners to proceed without a petition. The act prescribes all the steps necessary to a valid assessment and is exclusive.
 The assessment was $0.972 per' front foot. It is claimed that the adoption of this rule was error. The commissioners were required, under the act, to make an equitable assessment upon the owners of all the lots on the line of the street, apportioned as nearly as possible to the advantage deemed by them to have been received by each owner. The adoption of the front-foot rule was not necessarily error. On the contrary, the rule has been repeatedly approved and sanctioned by the courts. O'Reilley v. City of Kingston, 114 N. Y. 439, 21 N. E. 1004; People ex rel. Scott v. Pitt, 169 N. Y. 521, 62 N. E. 662, 58 L. R. A. 372; Mansfield v. City of Lockport, 24 Misc. Rep. 25, 42, 43, 52 N. Y. Supp. 571, and cases there cited; People ex rel. Keim v. Desmond, 186 N. Y. 232, 78 N. E. 857, cited by plaintiff, is clearly distinguishable from the case here; and Donovan v. City of Oswego, 39 Misc. Rep. 291, 79 N. Y. Supp. 562, also cited by the plaintiff, was reversed at 90 App. Div. 397, 86 N. Y. Supp. 155.
 Plaintiff was assessed $72.90 for his lot, with frontage of 75 feet, at the corner of Vermont and Granite streets, and $48.60 for a frontage of 50 feet for each of his two lots at the two corners of Gran
ite street and Greenfield avenue. He has never been assessed for a sewer along the first lot. He has been assessed and has paid $280 for sewer in front of the last two lots on Greenfield avenue. The westerly of these lots extends about 215 feet, and the easterly one about 173 feet, along Granite street; and, according to the engineer, the sewer extended about 45 feet northerly from their southerly lines. Under these circumstances, the assessment cannot be said to be inequitable. The assessment was for the three streets, and amounted to $2,539.01. It amounted to $1,513.17 for Granite street. As we have seen, section 33 seems to make each street an assessment district. It would seem, therefore, that the grouping of the streets was irregular, But, while this may be so, no fault has been found because of that, and there is no evidence that plaintiff has been injured by it. All lot owners have paid their assessments, except plaintiff and Martin Ahearn, both assessed on Granite street, plaintiff in all for $170.10 and Ahearn for $61.24, and plaintiff alone is complaining. Under all the circumstances, it seems to me that he is not entitled to the relief asked.
 In any event, the complaint must be dismissed as to the village. Section 34 of the act provides that all actions or proceedings on account of any act done or omitted by the commissioners shall be brought against them in the name of the sewer, water, and street commission of Saratoga Springs, N. Y. The assessment here was laid by the commissioners, the warrant was issued by them, and the tax, when collected, will go to them. The village has had, and will have, no part in the matter. No cause of action has been stated or proved against it.
Findings may be prepared accordingly.
(166 App. Div. 552)
O'GRADY V. HOWE & ROGERS CO. et al. (No. 47-15.) (Supreme Court, Appellate Division, Fourth Department. March 1915.) I. CONTRACTS (ww186—CONTRACTS UNDER SEAL-ACTIONS-PARTIES.
Only the parties named in a contract under seal, and who actually sign it, can sue or be sued thereun,
[Ed. Note,-For other cases, see Contracts, Cent. Dig. 88 790–797; Dec.
Dig. w186.) 2. PRINCIPAL AND AGENT Cm145—UNDISCLOSED PRINCIPAL-OPTION CON
An option contract under seal gave a party thereto the right to purchase real estate within 60 days on terms specified. The party accepted the option by a writing, not under seal, as agent for another and paid a part of the price. The acceptance did not show that the party acted as agent. Held, that the acceptance, and not the sealed option, formed the agreement to purchase so that it became a simple contract, so that the vendor could hold an undisclosed principal.
(Ed. Note.--For other cases, see Principal and Agent, Cent. Dig. $$ 499,
513-520; Dec. Dig. 115.] 3. CORPORATIONS 126—ACTS OF AGENT_RATIFICATION.
The directors of a corporation adopted a resolution authorizing its vice president and secretary and treasurer to negotiate for the purchase of
described premises not including an owner's premises adjacent thereto, im For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes
but the purchase thereof was contemplated by the secretary and treas. urer, who began negotiations with a tbird person as agent to purchase the premises. The agent procured an option to purchase, and both he and the secretary and treasurer understood that the option was for the benefit of the corporation. The vice president was apprised of what was being done, and a partial payment of the price on the acceptance of the option was made by check of the corporation entered on its books. The president, who was absent, was advised of what had been done on his return. The proposed deed from the owner, and the abstracts of title were delivered to the agent, who delivered them to the secretary and treasurer, who placed them in the hands of the corporation's attorneys. Held to justify a finding of ratification by the corporation of the unauthorized contract for the purchase of the property.
[Ed. Note.-For other cases, see Corporations, Cent. Dig. 88 159, 1702
1701, 1707, 1708, 1710-1716; Dec. Dig. Om426.] 4. CORPORATIONS O 426 — UNAUTHORIZED ACTS OF AGENTS – RATIFICATION
A corporation may ratify acts not previously authorized by it, and may ratify acts of an agent in excess of his authority, and ratification may be inferred from an informal acquiescence in and approval of the acts.
(Ed. Note.--For other cases, see Corporations, Cent. Dig. $$ 1596, 1702–
1704, 1707, 1708, 1710-1716; Dec, Dig. Omw 126.] 5. PRINCIPAL AND AGENT Cw146, 197—ACTION AGAINST PRINCIPAL AND AGENI -LIABILITY OF AGEXT.
Where, in an action for specific performance of a contract to convey real estate, it appeared that defendant was agent of codefendant in the purchase, codefendant was the principal debtor, and defendant's liability was subsequent only, and a judgment for plaintiff should so declare.
[Ed. Note.-For other cases, see Principal and Agent, Cent. Dig. $8 521
527, 733, 734; Dec. Lig. 146, 197.] 6. PRINCIPAL AND AGENT Cw145—ACTIONS AGAINST AGENT AND PRINCIPAL
Where plaintiff, suing an agent and his undisclosed principal, obtained judgment on his motion against the agent at the opening of the trial, the principal could insist that plaintiff had made an election to hold the agent only; but where no motion of dismissal as against the principal was made, nor any request made that the court should so hold, the point was waived.
[Ed. Note.-For other cases, see Principal and Agent, Cent. Dig. S$ 440, 513-520; Dec. Dig. Om 145.]
Appeal from Trial Term, Monroe County,
Action by James M. E. O'Grady, executor of Maria Whitelocke, deceased, against the Howe & Rogers Company and another. From a judgment for plaintiff, defendants separately appeal. Modified and affirmed.
Argued before KRUSE, P. J., and ROBSON, FOOTE, LAMBERT, and MERRELL, JJ.
John Desmond, of Rochester (Francis S. Macomber, of Rochester, of counsel), for appellant Howe & Rogers Co.
John S. Bronk, of Rochester (Hale & Bronk, of Rochester, of counsel), for appellant Thoms.
Eugene J. Dwyer, of Rochester (Frederick P. Kimball, of Rochester, of counsel), for respondent.
For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes
ROBSON, J. The action is by a vendor to obtain specific performance of a contract to convey real estate. Leaving out of view for the moment the alleged liability of the defendant Howe & Rogers Company as a vendee, there is no question that a valid contract in writing for the sale and purchase of real estate was established between the plaintiff as vendor and defendant Thoms as vendee. The completed contract is made by two papers. The first is in terms between plaintiff as party of the first part and Thoms as party of the second part thereto It was executed in duplicate, one of which duplicates was retained by the plaintiff and the other delivered to Thoms. They differ only in the fact that plaintiff's copy does not bear an executed certificate of acknowledgment. The effect of this agreement was to give to Thoms an option to purchase the premises described therein on the terms and in the manner therein specified, "provided," as the contract states, "the said party of the second part shall accept the terms of this contract within sixty (60) days from the date hereof, said party of the first part to furnish a full and complete transcript or abstract of title certified by the county clerk, also to pay C. M. Thoms two and one half (212) per cent. commission, which he is authorized to deduct from the amount of said purchase price." The option agreement bears date January 11, 1913, and under date of February 17, 1913, Thoms in writing, signed by him, delivered to plaintiff an acceptance of the option, aná on the same date, as stated in the acceptance, paid to the former $1,000 to apply on the purchase price. Contemporaneously therewith plaintiff gave Thoms a receipt in due form, acknowledging the receipt of the acceptance of the option and of the $1,000 to apply on the purchase price. It appears that of this sum of $1,000 plaintiff actually received but $250 in cash; the remaining sum being retained by Thoms under the provisions of the agreement above referred to as his allowance on the purchase price, provided he should accept the option. Plaintiff alleges in his complaint, and the court has found that he established on: the trial, that, while the purchase agreement was made in the name of Thoms, he was in fact acting therein as agent for the defendant Howe & Rogers Company,
[1, 2] The first objection raised by appellant Howe & Rogers Company is pointed to the initial proposition that the contract is under seal, and that therefore, even though Thoms was in fact acting as the agent of Howe & Rogers Company, under the established law announced in many decisions, no person, save the parties named in the contract and who actually signed it, can sue or be sued thereon. This statement of the law is unimpeachable, and was reasserted in the recent case entitled Case v. Case, 203 N. Y. 263, 96 N. E. 440, Ann. Cas. 1913B, 311. But it seems to me that the contract, which plaintifi seeks to enforce in this action, is not under seal. True, the preliminary option agreement is under seal. But that agreement, standing by itself, gave neither party a right to enforce it as a contract to sell the land. No obligation to accept the option rested on Thoms. Something more must be done by him before any contract of sale came into being. That was an acceptance of the option by Thoms within the period of the option. This he did by the written acceptance above ad