The People on rel. Burroughs a. Willett. nature. In those days, however, an execution upon a judg ment was issued by the court, theoretically at least. It had to be sealed and signed by the clerk. Now it is not even in theory issued by the court, but by the party or his attorney. That case, moreover, seems to have been but little considered. The court before whom it was brought had just denied the same relief on motion; or rather had granted it on terms which the applicant would not accept, and although the court said they did not think the writ was the proper remedy, they did, nevertheless, on the same motion, direct the order previously made to be modified so as to give all the relief sought. It was therefore an election of the court in which way it would give the relief, perhaps, or a refusal to review on this writ a decision just made in a different proceeding, rather than an adjudication against the propriety of the writ, which should be deemed an authority that the writ is not a proper remedy in such a case. The relief asked was granted, but was credited to the account of a motion, previously made and decided, rather than to that of the writ itself, although that was the only proceeding before the court at the time. Moreover, that case was before the Revised Statutes, under an act of 1813, not entirely similar to the present act. I am not inclined, under all the circumstances of that case, to defer to it as a controlling authority in this, but I shall examine to see whether the relator is detained by virtue of an execution upon a judgment of a competent tribunal. I am more ready to adopt this course, because I find in section 41 of the same act (2 Rev. Stats., 1st ed., 568; 4th ed., 801, § 56), that a person may be discharged on this writ from custody, by virtue of civil process, from a court legally constituted (subd. 4), when the process, though in proper form, has been issued in a case not allowed by law: (subd. 6) when the process is not authorized by any judgment, &c., of any court, or any provision of law. Whether process, which is set up as a justification for detention, has been issued in a case allowed by law, and whether it is authorized by any judgment of a court, therefore, I am authorized by those provisions of the statute to inquire; and a decision of these questions will dispose of the matter before me. The judgment and execution are before me, and the remaining question is, whether, on the whole, the execution is justified in law. The suit was brought to recover the value of certain The People on rel. Burroughs a. Willett. articles, on the ground that the defendant was bound by the custom of this State to receive and safely keep the property of his guests, and that having received that of the plaintiff, he kept it so negligently that it was lost. This custom of the realm would seem in the absence of express contract to take the place of it, and an action for not preserving the property according to it would seem to be in the nature of an action for breach of contract. But, on a more careful consideration, the grounds of the action appear to be, not the failure to keep safely and restore the property, which would probably be only a breach of implied contract, but the negligent, careless, and improper behavior and conduct of the defendant, the wrongful (tortious) conduct of defendant and his agents (negative, perhaps, to be sure, but nevertheless wrongful and tortious), by which the property was lost to the plaintiff. This negligent, careless, and therefore wrongful and tortious conduct, rather than the failure to fulfil the contract, is the ground of the action. (See Runkle v. Ells, 4 How. Pr. R., 288; The Bank of Orange v. Brown, 3 Wend., 158; Bretherton v. Wood, 3 Brod. & B., 54; 2 Lord Raym., 909; 2 Chitt. Pl., 155, 320; Hallenbacks v. Fisk, 8 Wend., 547; 4 Ib., 618.) In the cases above cited, it is settled that an action on the custom is founded on the tort or misfeasance, and not on the contract, express or implied, which often attends the transaction, and is in many of the cases proved. It is often difficult to determine whether the action is on the contract or on the custom; and the confusion seems to have arisen from the difficulty in ascertaining which constituted the basis of the action, the custom or the contract, rather than whether an action ascertained to be on the custom was founded on tort or on contract. (Bank of Orange v. Brown, 3 Wend., 158, 168.) The suit against Burroughs was founded on tort; the judgment record shows this fact. With this fact apparent, was the execution properly issued against the body of defendant? Under the non-imprisonment act (Laws of 1831, 396), by which this question would have been controlled prior to the Code, he would have been liable to arrest; for, under that, a defendant in an action in tort could be held to bail. (Runkle v. Ells, 4 How. Pr. R., 288.) But by the Code, which now embraces the law on the subject, the only provision under which there is any The People on rel. Burroughs a. Willett. pretence for the claim, is contained in section 179, subdivision 1, which authorizes the arrest of a party "in an action * * * on a cause of action not arising out of contract where the defendant is not a resident of the State, or is about to remove therefrom, or where the action is for an injury to person or character, or for injuring or wrongfully taking, detaining, or converting property." It does not appear that the defendant is not a resident of this State, or being so is about to remove therefrom; nor does it appear that the action is for an injury to person or character for wrongfully taking, retaining, or converting property; and it only remains to be considered whether it is for injuring property. On this subject the decision of the Superior Court in Tracy v. Leland (2 Sandf., 729), which has not, that I am aware, been overruled, seems to relieve us of all doubts, and leads to the conclusion that this is not an action for an injury to property. The relator was not liable to arrest by the judgment as entered, at any rate, without an order from a judge; and whether it was a proper case for an order, cannot be decided here, for the facts do not appear. He certainly was not, in the view I have taken of the case, unless some other fact, such as non-residence or an intent to remove from the State, be superadded to all that appears in the judgment-record before me. He could not therefore have been arrested on the facts shown to me, under sections 179 and 181, and it follows from section 288 that he was not properly arrested on the judgment obtained in that suit, and he therefore must be discharged. My conclusions are, First. That on this writ of habeas corpus I am authorized to inquire, 1. (2 Rev. Stats., 1st ed., 568, § 43, subd. 4; 4th ed., 801, § 56) whether the process, though proper in form, is allowed by law in this case; and, 2. (Ib., subd. 6) whether the process is authorized by a judg ment, order, or decree of a court, or by a provision of law. Second. That an action on the custom against an innkeeper or common carrier, is founded in tort or misfeasance, and not on contract. Third. That in such an action a defendant cannot properly be held to bail, except under section 179, by order of a judge, on proof, in addition to the facts constituting the cause of ac The People on rel. Dinsmore a. The Croton Aqueduct Board. tion, that defendant is a non-resident of the State, or is about to remove therefrom. Fourth. That as the record of judgment in such a case does not show all the facts necessary to authorize an arrest in the suit before judgment, execution against the body cannot properly be issued on it, at least without the order of a judge, and on proof of the additional facts required to entitle the plaintiff to it. THE PEOPLE on the relation of DINSMORE a. THE CROTON AQUEDUCT BOARD OF THE CITY OF NEW YORK. Supreme Court, First District; General Term, December, 1857. Two Actions. CORPORATION CONTRACTS.-SEALED PROPOSALS.-DEFECT OF FORM.-VERIFICATION.-MANDAMUS. Under section 501 of the city ordinance of 1849, organizing the departments of the corporation of the city of New York,-which provides that no bid or estimate for a corporation contract shall be rejected for any error of form, provided the party making it shall correct it within twenty-four hours after notice of any such defect, the notice of the defect need not be in writing; nor need it invite a correction of such defect. The distinction between errors of form and errors of substance, in such estimates, -considered. The provision of section 498 of the ordinance of 1849,-which requires that an estimate for a corporation contract shall be verified by the oath of the party making the same,—is only satisfied in case of an estimate made by a partnership, by giving the oath of each partner. The lowest bidder for a corporation contract, pursuant to advertisement of the corporation of the city of New York, under the charters of 1849, 1853, and 1857, and under the ordinance of 1849, organizing the departments of the corporation, does not acquire any legal right to the contract, to enforce which a mandamus will issue, until the contract has been made with him, and approved by the Common Council, under the provision of section 494 of the ordinance of 1849,-forbidding any contract to be made until the papers relating thereto shall have been confirmed by the Common Council, and an appropriation made. Appeal in one cause from an order of the special term denying a motion for a mandamus, and motion in another cause The People on rel. Dinsmore a. The Croton Aqueduct Board. for a mandamus, ordered to be heard in the first instance at general term. In July, 1857, the Croton Aqueduct Board of the city of New York advertised for proposals for the construction of a new Croton Reservoir in Central Park. Proposals were put in by a number of persons; and the three lowest were as follows: By Dinsmore & Wood, at $524,298.97. By Fairchild, Holman, Walker & Brown, at $572.473.33. On the public opening of the bids by the Croton Board, on August 26th, the bid of Dinsmore & Wood was objected to as defective. The only defect necessary to be stated for the purpose of explaining the opinion of the court was in the verification of the estimate. It was verified by the oath of Dinsmore alone, instead of being verified by both Dinsmore & Wood. This, it was contended, was not a compliance with section 498 of the ordinance of 1849,* organizing the departments of the corporation, which requires such estimates to be verified by the oath of the party making the same. This defect in the bid was orally announced at the meeting of the board, and the bid publicly laid aside as defective, for want of sufficient verification; and this was done in the presence and hearing of Dinsmore; but no written notice was ever given to either bidder, nor any communication made by the board to Wood. Dinsmore & Wood subsequently applied for a mandamus requiring the Croton Aqueduct Board to entertain and consider their bid, and thereupon to award the contract to the lowest bidder.t The motion for the mandamus was heard at special term and denied. The proceedings thereon are reported 5 Ante, 316. (See also S. C., Ib., 372, for subsequent interlocutory proceed The section referred to is in these words : It (the estimate) shall be verified by the oath in writing of the party making the estimate, that the several matters stated therein are in all respects true. †The affidavit and the order to show cause, on which the application was made, were in the following form, and were followed with the necessary modifi |