(216 N.Y.S.)

and the responses of defendant, suggesting the possibility of the transmission being accomplished if further delay were accorded, would be inexplicable, except upon the theory that both parties wished and understood that the contract was being kept alive and the time of performance either definitely or indefinitely extended.

[2] That such extension is valid and effective at law whether made before or after breach is established by numerous authorities. Thus Mr. Justice Willard Bartlett said in Farrington v. Brady, 11 App. Div. 1, at page 2, 42 N. Y. S. 385, 386:

"Before the breach of a written contract not under seal, it may be modified, or the performance thereof wholly waived by the oral agreement of the parties, provided the substituted contract is not one which the statute of frauds requires to be in writing.

To the same effect in Clark v. Dales, 20 Barb. 42-46.

In Homer v. Guardian Mut. Life Ins. Co., 67 N. Y. 478, 481, the court wrote:

"The time for the performance of contracts by specialty, as well as simple contracts, may be extended by parol, and when so extended it is as if the extended time was written in and made a part of the original contract, every other provision remaining intact, and to be carried out with the single modification as to time.

It is not necessary to decide whether the extension becomes effective by an application of the doctrine of substituted contract or the theory of estoppel or of waiver of a condition. See Williston on Contracts, §§ 679, 680; Firestone v. Miroth Const. Co., 215 App. Div. 564, 214 N. Y. S. 239; Thomson v. Poor, 147 N. Y. 402, 409, 410, 42 N. E. 13.

The opinions quoted, like many others, state a rule to be followed in the event of an extension of time before breach, and in a number of text-books and cases will be found statements to the effect that, after breach, a mere extension of time of performance, without a new consideration, is ineffective at law. When the cases cited in support of the latter proposition are examined, however, it will be discovered that in a large part they are not germane, and that generally, when they have any bearing on the issue, they involve the question whether the payment by a debtor of part of a debt is consideration for a valid extension of the time of payment of the balance-a question which is readily answered in the negative on the application of the doctrine of Vanderbilt v. Schreyer 91 N. Y. 392, and many similar cases; i. e., that the mere reassertion of an obligation by which a party is already bound affords no consideration for a new or different stipulation from the other contracting party The instant case, however, is altogether different. No extension of the time of "payment" of a stipulated price is involved. It is the extension of time either to perform a service or to deliver a commodity, whichever view may be taken of the transaction. It must be apparent

from our daily experience in the business world that an agreement to perform a service or to deliver an article on a later date involves an act altogether different in value from an agreement to perform the like service at an earlier date. Substantially the whole of our commercial life is governed or inspired by that consideration, exemplified by changing market values. When, therefore, the plaintiff forbore either from rescinding the contract, as it is sometimes called, or from claiming damages for breach (if such there was), in consideration of defendant's agreement to perform the service or deliver the article at a later date, he received a promise essentially different from the original one, and one which might have been very much less or very much more valuable to himself, as subsequent events might determine. With the wisdom of his bargain we are not concerned. That it constituted consideration for his agreement to extend the time of performance seems to me to be clear. In some cases the same conclusion has been reached after elaborate discussion, as, for example, Hutton et al. v. Tullis, 93 Misc. Rep. 548, 157 N. Y. S. 214. In others the principle appears to have been taken for granted. Thus in Mawhinney v. Millbrook Woolen Mills, 234 N. Y. 244, 249, 250, 137 N. E. 318, 320, the court said, per Pound, J.:

"Defendant herein was in default on July 31, 1917. Its time for performance was extended by plaintiff's letters [of August 24th, October 4th, and October 17th] to a reasonable time after October 17, 1917."

[3] My summary of the instant case is therefore that defendant, in August, 1917, agreed to transmit plaintiff's money to Russia within a reasonable time, indicated by defendant to be approximately three months; that, whether before or after breach, upon defendant's suggestion and plaintiff's acquiescence, the time was extended upon the lapse of repeated periods of approximately three months until June, 1921, when the arrival of plaintiff's wife in America rendered further efforts at transmission of no avail to plaintiff. Thereupon plaintiff rescinded the contract for nonperformance by defendant. Plaintiff's cause of action for money had and received, namely, for the return of what he had paid for the service contracted for, accrued in June, 1921, upon defendant's breach of the extended agreement, and this action is brought well within the six-year period of the statute of limitations. Bank of United States v. National City Bank of New York, 123 Misc. Rep. 801, 206 N. Y. S. 428, affirmed 214 App. Div. 716, 209 N. Y. S. 793; Richard v. Credit Suisse (Court of Appeals, May 4, 1926), 152 N. E. 110.

Judgment affirmed, with $25 costs.

LYDON, J. concurs,

LEVY, J. (concurring). I fully concur. There were present here, due to the claim of defendant that it was unable to perform, because of

(216 N.Y.S.)

circumstances beyond its control, very definite arrangements, mutually consented to, for repeated extensions of the time of performance, leading to June, 1921. In that month plaintiff's assignor's family arrived in America and it thus became utterly worthless, as it was impossible, to attempt to transmit the moneys for their benefit abroad. Thereupon plaintiff's assignor elected to rescind, and the demand for the sum yielded up having been refused, this cause of action then accrued. The statute of limitations did not bar the action, since it was commenced in 1925. On the other hand, if defendant could have performed, but utterly failed or neglected to do so, without fault on plaintiff's assignor's part, the well-known legal maxim, "Nul prendra advantage de son tort demesne,” would seem to apply, very likely on the theory of estoppel in pais. The trite saying of Lord Kenyon, that one shall not be permitted to "blow hot and cold" with reference to the same transaction, would appear, also, to apply here with equal force.

(217 App. Div. 451)

SCHIEFFELIN v. BERRY, City Comptroller, et al. (Supreme Court, Appellate Division, First Department. June 4, 1926.) 1. Officers 94.

Pensions and retirement allowances are part of compensation of public officials; otherwise their payment would be unconstitutional.

2. Municipal corporations 65-City's legislation under Home Rule Law must have appropriate relation to city and its government (City Home Rule Law [Laws 1924, c. 363] § 12, subd. 2, amended by Laws 1925, c. 397).

Under City Home Rule Law, § 12, subd. 2, amended by Laws 1925, c. 397, prohibiting adoption by city's legislative body of local law affecting any statute relating to matters other than property, affairs, or government of cities, it is not sufficient that matter on which city seeks to legislate is contained in its charter, but it must have some appropriate relation to city and its government.

3. Municipal corporations 215-Local laws of city of New York, changing retirement allowance to employees, held invalid as changing compensation of state and county employees (Const. art. 10 and article 12, §§ 2, 3; City Home Rule Law [Laws 1924, c. 363] § 11, subd. 1, section 12, subd. 2, amended by Laws 1925, c. 397, and section 21, subds. 2, 9; Const. 1894. art. 12, § 2; Laws 1920, c. 427, adding c. 26, §§ 1700-1725, to Greater New York Charter [Laws 1901, c. 466]; Local Laws of 1925 of City of New York Nos. 10 and 18; Greater New York Charter, § 1700, subd. 9, and section 1710, subd. 2).

Under Const. art. 12, §§ 2, 3, and City Home Rule Law, § 11, subd. 1, section 12, subd. 2, amended by Laws 1925, c. 397, and section 21, subds. 2, 9, and in view of Const. 1894, art. 12, § 2, fact that Laws of 1920, c. For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

427, adding c. 26, §§ 1700-1725, to Greater New York Charter providing for retirement allowance for employees in city service, defines "city service" to include many county or state employees, does not change their status as county and state employees, in view of Const. art. 10, and Local Laws of 1925, of City of New York, Nos. 10 and 18,, attempting to amend such chapter 427 (Greater New York Charter, § 1700, subd. 9, and section 1710, subd. 2), by changing minimum retirement ages, and basis of computing retirement allowances are invalid as attempting to change compensation of state and county employees.

4. Statutes 2253⁄4-Courts will presume that legislators, in using language previously construed by courts, intended meaning thereof to be limited to meaning given it by courts.

Where language, which has already been judicially construed, is used in constitutional amendment and repeated in statute, courts will presume that legislators intended its meaning to be limited as construed by courts.

Appeal from Special Term, New York County.

Action by William Jay Schieffelin against Charles W. Berry, as Comptroller of the City of New York and others. From an order granting plaintiff's motion for an injunction pendente lite (215 N. Y. S. 341), defendants appeal. Affirmed.

Argued before CLARKE, P. J., and DOWLING, FINCH, McAVOY, and WAGNER, JJ.

George P. Nicholson, Corp. Counsel, of New York City (William E. C. Mayer, of New York City, of counsel, and Arthur Sweeny, of New York City, on the brief), for appellants Charles W. Berry, as Comptroller, and Peter J. McGowan, as Secretary, etc.

Watson, Godley, Sheppard & Willguss, of New York City (John Lehman, of New York City, of counsel), for appellant John F. Hylan.

Leonard M. Wallstein, of New York City (Ralph M. Frink, of New York City, on the brief), for respondent.

WAGNER, J. This taxpayer's action was instituted pursuant to section 51 of the General Municipal Law to secure a judgment enjoining the secretary of the board of estimate and apportionment of the city of New York from signing any voucher for the payment to the defendant John F. Hylan, or his widow, of any retirement allowance out of the funds of the New York City employees' retirement system, and enjoining the comptroller of the city of New York from paying to said John F. Hylan, or his widow, any retirement allowance out of said funds, and enjoining the said John F. Hylan from receiving any retirement allowance out of these funds.

Upon plaintiff's motion an order was granted in the court below restraining the foregoing acts pendente lite. All of the defendants appeal from that order.

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

(216 N.Y.S.)

Since the facts are not disputed, we are concerned upon this appeal only with a legal question.

The undisputed facts are that from January 1, 1918, to and including December 31, 1925, the defendant John F. Hylan was mayor of New York. In September, 1921, he joined the New York City employees' retirement system. His application for such membership set forth his previous service as city magistrate, as county judge of Kings county, and as mayor. It also stated the date of his birth as April 20, 1868, and his membership status.

The New York City Employees' retirement system was established by the enactment of chapter 26, §§ 1700 to 1725, inclusive, of the Greater New York Charter (Laws 1901, c. 466), added by the Laws of 1920, c. 427 and as amended by Laws 1923, cc. 69, 142. The participants in the benefits are known as members, and those who are or may be included in such membership are described in section 1702, as follows:

"(a) All persons in city service, as defined in this chapter, in positions in the competitive or labor class of the civil service who entered or re-entered such service after October 1st, 1920, and who completed or shall complete six months of city service after such entrance or re-entrance.

"(b) All persons in city service, as defined in this chapter, who shall have filed with the board of estimate and apportionment a statement duly executed and acknowledged waiving and renouncing all present and prospective benefits provided wholly or partly by the city of New York through any other retirement system or pension fund and consenting and agreeing to membership and to the deductions for annuity purposes prescribed in this chapter."

It will be seen that membership in the system is compulsory for all in the city service holding positions in the competitive and labor classes, who entered the service after October 1, 1920. Those employees in any class who entered prior to October 1, 1920, and those in the exempt class who entered after October 1, 1920, may join on renouncing the benefits of other city funds.

City service is defined in section 1700, subd. 3, as follows:

"City service' shall mean service, whether appointive or elective, as an official, clerk or employee of the city or state of New York and of any department, corporation or other body created under the provisions of this act and of any of the municipalities, counties or parts thereof which have been included within the boundaries of the city of New York or which have been incorporated into said city and of any court, so far as such service is paid for by the city of New York or by any of the municipalities, counties or parts thereof which have been included within the boundaries of the city of New York or which have been incorporated into said city.

Significant of the Legislature's purpose to bring within the membership of the retirement system, not only persons engaged in services relating to municipal affairs, but those in other public services as well, is section 262 of the Tax Law. This section is part of article 11 dealing with the

216 N.Y.S.--24