Wiltsie v. Eaddie.

The question was independent, inasmuch as the defendants claimed to have paid Butler, in full, for the same service for which the plaintiff sought compensation in this action. As a fact in a chain of evidence against the plaintiff, the testimony embraced in the question upon which the refereee was then asked to find, was obviously material. No complaint is made of the exclusion of the evidence, as it was all received and considered by the referee.

The complaint that the referee has not found specifically upon the question suggested, is not well taken, and for two reasons: First, the referee is required to find and report upon the issues only, and not upon the evidence (Code, § 272). He must "state the facts found by him." Thus, he was bound to determine and report upon the question, whether the parties in this action entered into the contract set forth in the complaint. That was a precise issue before him. But he was not bound to say whether he believed the statements of a particular witness, or what his decision would have been if he had believed him, or disbelieved him. He was not bound to "state" whether a particular link in the chain of the evidence of either party existed or was wanting. Such is the character of the complaint now under consideration. As an independent question, it was not of the least importance whether the plaintiff was aware that a contract for the shipment of potatoes existed between the defendants and the deceased. It was only important as bearing upon the question in issue, viz: whether a contract existed between the parties to the action, as set forth in the complaint. The referee has found, distinctly, upon that point, that such a contract did exist. That was, itself, a question of fact; and he further found that the service sued for was not rendered in fulfillment of Butler's contract. He is not called upon to find or explain the means: and processes by which he arrived at that conclusion. When the referee decided and "stated that the contract was made between the parties to this action and the service rendered, was in fulfillment of that contract, he decided

Wiltsie v. Eaddie.

and "stated" all that was necessary on that branch of the case.

But again; the question referred to the referee for his decision was a question of fact, and can only come before this court for its consideration, when the judgment of the referce has been reversed on a question of fact, and the order of reversal so certifies (Code, § 272). In the present case, the judgment of the referee was affirmed.

If the point of fact which, it is complained, was not decided, had been upon the main issue, it would not have been within our power to review it.

Under such circumstances, we can only review the decision of the general term, when the referee decided without any evidence, or against all the evidence on the point. In the present case, the plaintiff expressly denied any knowledge of a contract between the defendants and the deceased, except as to the potatoes raised on Bullen farm.

Each of these reasons is conclusive against the appellant's claim; and they furnish an answer to the other points of the appellants, to wit: that the referee declined to report whether both parties supposed that Wiltsie was acting in behalf of the estate, and also in relation to the receipt of the $700, and the application of the same; and also as to what took place on the settlement of the accounts of the plaintiff, and administrator of Mr. Butler.

These are questions of fact, and questions of evidence simply. The referee found that a contract was made between the parties to this action, by the service which was rendered by the plaintiff for the defendants, and which service was rendered by him in his individual capacity, and not as administrator. He properly held that the law implied a promise, from these facts, that the defendants would pay to the plaintiff the value of the service rendered.

The judgment should be affirmed.

All the judges concurred in affirming the judgment.

Dolan v. Mayor, &c. of N. Y.

DOLAN against THIE MAYOR, &c. OF NEW YORK.

Supreme Court, First District; At Chambers, August, 1863.

INJUNCTION.-CONTRACTS FOR CORPORATION WORK

The common council of New York may be enjoined, at the suit of an individual owner, from entering into a contract to lay a pavement which is patented, and therefore not open to competition, where the work is to be done at the expense of the individual owners of property upon the

street.

Motion to continue an injunction.

This action was brought by Peter Dolan to enjoin tho Mayor and Commonalty of New York and others from executing a contract for the paving of Seventh-avenue from Fourteenth-street to Fifty-ninth-street, with what is called the Stafford pavement, authorized under a resolution of the common council, passed February 18, 1868.

A temporary injunction was granted by Judge INGRAHAM, and the case now came before the court on a motion to continue the preliminary injunction.

The principal grounds urged by the plaintiff were, that the right to lay the pavement referred to was held by a corporation under letters patent of the United States, and that it was, therefore, not open to competition, as provided by the statute requiring contracts for the city to be made subject to sealed tenders or proposals for the performance of the work; that the pavement was not desired, but was opposed by the bona fide tax-payers of Seventhavenue, and that the persons who subscribed their names to the petition for such pavement were only temporary

Dolan v. Mayor, &c. of N. Y.

residents on that thoroughfare, who would not be affected by the assessment; that the laying of the pavement would involve an outlay of $400,000, or thereabouts, and would be a fraud upon the tax-payers; that the resolution authorizing the contract was procured to be passed by secret agents of the Stafford Pavement Company, and in consideration of certain pecuniary rewards agreed to be paid to the members, or some of the members, of the common council. Plaintiff also contended that the resolution referred to was not duly passed by the common council.

SUTHERLAND, J.-The right to use the Stafford pavement blocks in paving streets is patented, and is held and owned exclusively by a company or corporation.

Of course, there would be no use in advertising for bids or proposals for doing the work under the ordinance in question, for there could be no competition.

According to the reasoning in the case of Dean v. Charlton (Am. Law Reg., July, 1868, 564), it follows, that the common council could not authorize the work to be done with or without the form of advertising for proposals, considering § 38 of the charter of 1857, and considering that the work is to be done at the expense of the lot-owners.

The distinction in Dean v. Charlton, between it and Harlem Gaslight Co. v. The Mayor, &c. (33 N. Y., 309), appears to me to be reasonable, and probably maintainable.

I think, therefore, the injunction should be continued on this ground, without passing upon any other question in the case, with $10 costs to the plaintiff, to abide the event of the action.

Slocum v. Barry.

SLOCUM against BARRY.

Court of Appeals; January Term, 1868.

ORDER FOR COSTS AGAINST TRUSTEES.

In an action by trustees, if the complaint alleges a contract made with the plaintiffs as trustees, for the benefit of the trust, the designation of the plaintiffs as such is not to be regarded as merely matter of description, but as showing that they sue in their representative capacity.

In order to charge trustees of an express trust with costs of an action prosecuted by them as such, a special order of the court is necessary. The ordinary judgment is not enough, without something to show that mismanagement or bad faith on the part of the plaintiffs was made to appear to the court.

The proper practice in such a case is to make a specific application to the court, founded on notice to the other party.

Appeal from an order.

This action was brought by Hiram Slocum and others, respondents in this appeal, against Charles H. Barry, the appellant.

The cause of action alleged in the complaint was a subscription made by the defendant to a fund for the Troy University, of which the plaintiffs were the trustees. When the cause was called at the circuit, the plaintiffs did not appear, and the defendant took the usual order dismissing the complaint. Judgment having been entered thereon for costs, the defendant issued execution against the plaintiffs to collect the costs from them personally; but he did not previously obtain from the court any order charging them personally, or allowing such execution to issue.

The plaintiffs moved at special term to set aside the execution, and the motion was denied, with costs; but