THIRD !'OAT. BANK OE' SYRACUSE
TOWN' OF SENECA. FALLS.
THIRD NATIONAL BANK OF SYRACUSE
TOWN OF SENECAFALLB.
(CirCUit (k,urt, N. D. New York.
Hiscock, GWord x Doherty and George F. for plaintiff. Patrick J. Rogers, Curnelius E. Stephens, aiid James L. A'1lgle, for defendant. . . (". . COXE, J. This action is brought-upon interest' warrants originally attached to bonds alleged to have been issued by the is urged by the defendant that the suit should be disIhissed pursuant to the fifth section of the act of. March, 1875,dnt4e ground thaHhe demands in suit were improperly and collusively transferred for tha purpose of creating a. case within the jurisdiction oftha;col,trk This question should not be' decided upon conjectme;' the court isrtot >per... mitted to speculate as to the nature ofthetransactiQll bet'woonvendor and vendee. If suspicion were allowed to place of 'Proof; ,it is not unlikely that aconcillsion falVura!.l1e to' defendant'.athebry:
" FEDERA,L REPORTER.
might be reached. The evidence, however, establishes a valid trant'fer. Allen v. Brown,.44 N. Y. 228; Stone v. Frost, 61 N. Y. 614; Sheridan v. The Mayor, 68 N. Y. 30. No authority is produced hold. ing a dismissal proper unless the proof establishes something more than is developed here. Lanning v. Lockett, 10 FED. REP. 451: Marion v. Ellis, ld. 410; Oollinson v. Jackson, 14 FED. REP. 305. The amendment-passed in 1870-:.-to the general bonding act of its provisions to the three counties of Seneca, Yates, 1869, and Ontario, which were originally excepted from the operation of the act. Defendant contends that the amendatory act is in contravention of section 16, art. 3, of the constitution of New York, which provides tha.t "no private or local bill, which may be passed by the legislature, shall embrace more than one subject, and that. shall be expressed in the title." This position cannot be maintained. An act which amend!,! a general law by making it more general, cannot or local' properly be called Criticism is made that the verificatiooof the petition addressed to the county judge of Seneca county is defective because it issuscepti. ble of a construction at variance" with the requirements of the bonding act. It is asserted that the affiant states simply that the peti. tioners are a majority of the "tax-payers, and not that they are amajority of the tax-payers whose names appear upon the last preceding tax.lisf, as required by the statute j that the verification might be true, even though a majority of the tax-payers, whose names appeared on the last tax.list, did not, in fact, unite in the petition. It is also said that the last paragraph of the affidavit, viz., "Deponent further says that all the allegations in said petition are true, to his own knowledge or belief," relates to and qualifies all precJding allegations, so that the whole affidavit must be. considered as if made on information and belief. Even if the defendant were in a position to raise these questions, it is thought that the objections are not well taken; that .the verification and petition, when considered together, conform sufficiently to the statute, and are free from ambiguity and doubt. The petition states everything positively, and everything required by the statute; this is conceded, at least the petition is not assailed because of any irregularity or omission in this respect. Regarding the verification, the statute provides that the petition is to be '.'verified by one of the petitioners j" no precise form is designated or required. The averments complained of, even thongh they bore the construc.tion sought to be given them by the defendant, were not necessary and may be
THIRD NAT. BANK OF SYRACUSEV. TOWN OF SENECA PALLS.
treated as surplusage. Nothing is there stated inconsistent with prior allegations admitted to be adequate. There was, doubtless, no necessity for the statement that at the date of the jurat the petitioners were a majority, but if there was sufficient in the affidavit without it, it is not easy to see how the proceed. ings were injuriously affected, more than they would be by an alre· gation that the petitioners were all taxed upon real ,estate, or were y,ears of age. If such statements were immaterial, they all over surely were innocent. As to the other propositions argued by the defendant, it may he said generally that where the bonds recite on their fa,ce that they are issuedpnrsuant to the statute, the town is estopped; in an action by from questioning the truth.6f recital; it can'not a bona take advantage of irregularities committeed by its own agents. The is not permitted to controvert the judgment of the officer· charged by law with the <iuty of deciding the questions preliminary to the issue of the bonds, .His determination is conclnsive, until reversed in a direet proceeding by an' appellate court. These propositions have been so often and so relJentlydecided by this court,and by the supreme court, that it is not thought necessary to enter into any general discussion of the principles upon which they rest. There can be lit· tIe doubt that the law as stated is the law which this court is compelled to follow. But in addition to these general considemtions there are other reasons which must preclude this defendant from questioning the validity of the proceedings before the county judge. The bonds were issued in July, 1871; the first default in the payment of interest occurred in January, 1876. Having received and retained the stock of the railroad company, and having paid nine installments of inter· est on the bonds, the town is concluded by its own acts, which amount to a. ratification and confirmation. Whiting v. Town of Potter, 18 Blatchf. 165, 180, and cases cited; [So C. 2 FED. REP. 517.] It follows that there must be a judgment in favol of the plaintiff for the amount demanded in the complaint. v.15,no.1l-50
HARRIS and another v. HANOVER NAT. BANK.
(Circuit Court, S. D. New York.
BILLS AND NOTES OF INSOJ,VENTS,-}Iu'ruAL lIIrsTAKE-ATTACHMENT.
When bills of an insolvent bank, the notes of a party who has previously failed, are transferred in payment of a debt or sold as'solvent Paper, both parties being ignorant of the failure and innocent of fraud, the cJ;'editor or buyer may repudiate the payment or sale, upon a tender or return of the dishonored note, and recover the amount due.
2. SAME-CASE STATED.
The plaintUfs were the owners of a promissory note made by atlrm in New Orleans. The note was sold by note brokers of New York to the defendant. On the same, day, an hour before the sale of the note, an $ttachment, upon which their estabtishment was seized, was issued against the makers of the note by local creditors. The money received by the note brokers for the note being paid mto court, the question remained whether the plaintiffs or the de· fendant, both parties being ignorant of the attachment and acting in good faith, should bear the loss. Held, that the defendant might rescind the con· tract for the purchase of the note'and recover back what it paid therefor, on the same principle that the plaintllIs would have been allowed to rescind had the nota been the dayfollowing in bills of an insolvent bank.
When a firm is unable to meet it,s obligations and allows its property to be taken under an attachment on the charge of fraud, which it docs not deny, it is legally if not' actually insolvent.
James S. Stearns, for plaintiffs. 'l'homas S. Moore, for defendant. COXE, J. Prior to November 29, 1881, the plaintiffs were the owners -of; a 'Promissory note for $1,508.28, made, by Levi & Co.· of New Orleans. On that day, and after 11 o'clock A.M., the note was sold by Hess Brothers, note brokers of New York, to the defendant. On the same day, and at about half past 10, New York time. an attachment was issued against -Levi & Co., in a suit oommenced by local creditors, .upona demand for $5,035,-$2,500 becoming due November 26, and the balance December 13, 1881. The ment of Levi & Co. was seized and closed by the sheriff. T.4e firm. however, considered themselves in business, and did, in fact, can.. tinue to draw checks and collect bills-outside of the store-until December 2d, when their first note went to protest. Hess Bros. having paid the money into court, the question to be determined is whether the plaintiffs or the defendant-all parties being ignorant of the attachment and acting in good faitll-shonld bear the loss. A somewhat careful examin:ttion has failed to discover an adjud:ca-