FIl)"TH NAT. BANK tl. ARMSTRONG.
49
But if paper is indorsed, II For collection for account of the depositor," and then deposited, and credit given, a different case is presented. The mere fact that paper thus indorsed is credited by a bank to the depositor as cash, and the privilege accorded to him of drawing against the credit, may not, as it seems, be sufficient to vest the bank with title to such paper. In SOlDe cases it appears to be held that such credits are merely provisional, that is, subject to revocation. until the paper is actually collected hy the receiving bank, or until the credit has been drawn against by the depositor, and that up to such time the title to the paper is in the'dapositor, and the bank is a mere agent of the depositor,: for collection. Bank v. Bank, (Mass.) 20 N. E. Rep. 193; Levi v. Bank, 5 Dill. 107-111; Balbach v. F'relinghuyseJll, 15 Fed. Rep. 683; 2 Morse, . Bank. §§ 583, 586. . In the opinion of the court, the true criterion, in a case such as is last stated, for determining the question oftitle to the paper before the same is actually collected, and before the credit has been drawn against, is whether the depositor intended to part with title, and whether the receiving bank intended to purchase the paper, and assume the risk of payment, and give an absolute credit therefor, as in cases of discount. Viewing the matter in that light, I have little difficulty in finding, in the case at bar, that the title to the two drafts, and their proceeds, remained in the Portsmouth bank and Staunton bank, respectively, up to the time the Fidelity Bank failed, and the government took possession of its assets. The indorsements placed on the drafts in question, when forwarded to the Fidelity Bank, is persuasive evidence, notwithstanding the previous course of dealing, that neither the Portsmouth bank nor Stauntonhlink intended to part with their title to the drafts in question, or to enable the Fidelity Bank to deal with the same as its own. It was a restrictive indorsement, and it must be assumed that that form of indorsemen;t was adopted for a well-defined purpose. It may well be doubted whether the legal effect of that form of indorsement can be controlled or modified by proof ofa usage existing to credit stich items as cash, and permitthe credit so given to be drawn agaiust; it being conceded that in the present case neither of the depositors saw fit to avail themselves of such privilege. But, be that as it may, it is also apparent that the Fidelity Bank did not intend to purchase the drafts in question, and give its customers an absolute credit for the par value thereof. In its letter acknowledging the receipt of the Shelby draft, the Fidelity Bank same, "subject to payment." This must be stated that it credited understood as meaning that the credit was merely provisional, that is, conditional on payment, and that it did not intend to assUme the risk of payment, or give an absolute credit, or pnt itself in any other relation to the paper than that of an agent for collection. This seems to me to be the proper interpretation of the transactio.n, looking at it merely with a view of determining what the parties thereto intended. . As the Fidelity BankJ1ever received proceeds. of the drafts, and was not even notified of their payment prior to its failure, and as the banks that had them for collection laid claim to the proceeds of the drafts, in v.40F.no.2-4
· :BEI>ERA,L
voL, ,40. :
the hands otth,e cqllectillg agent... before they had become mingled with the of the Fidelity Bank, 1 ,think. are entitled .to recover as against the, receiver of ,the Hackett v. Reynolds, CPa.) 6 AU,. Rep. 689; :First National Bank v:. &no (lAJunty Bank, aupra. ,It is so decreed.
BARNEY DUMPING-BOA.T "
Co. et al. v. i
MAYOR, NEW YORK. \ "
ETC.,
01' ·THJCCITY OJ' .
(OircuitOourt, S. D. Ne:w York. August 12, '; ,'..,> .1 ' ,,', .' · i : , " " " , ;',
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'MUNIOIPALCORPORATIONs-LIAllILITY FOR
Tbe cIommissioDer of street cleBningiOf 'the city of New York is an agent otthe city and not an oftlcerofliM general puWo, Dl!twitl;i.sYlmding his,4uties are rendered in the interest ot ,the public he'alth, and bis powers are plenary, arid, within ttieir ap .·.bere, exclusive of the' a.u.thority Oh,nY .0th,ero.me,er :Oft. .M.t t.:v,". The citY l8. for Ids aotsdon, in ' " .-'.,. -', . :" T·, .:' \ ,:
OF On'ICER8,".
,:,;'
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In Admirf),lty;. Libel for: damages., Henry R., Beekman" lIy'tand& for '..
," ,I
tE:stirtiqnydn theinjuthe '. dumping-boat, whicht4ljlibelants seek to damages be,w,ereqaqsel1.by the,qarelf-ssnE!ssof .t'qpse, ,in to the .. i cQlm:nitted.:while ;they' . engage.d in frQIlI{ the, ",II These persons w,ere under, the: immediate of the, cqpllpissioner,of qf ;th«'tl city of NerY()rk. as ;theheag. of.th!lt muhad: tb,e custOllyof the, tUg.j BY·1Lc.toHhelegisbJil¥$the "cqnsQli.datioD cl1!j,rg.eq. with. the dllty ()f the streets Il,?·the and of *Pe with aut()englil-ge anll discreti,on neces()f Of, the. only legal in the case w merits. notice is, \V hether thc'.cit,y.is liable for,the of.the of this delegated to ,;hhnpy law;ll.re such as:primarily devolve upon .the <:ity, as a municipal his B1l9ordinates are the agents of th.ecity, )l.!;ld the respondents for theirMts :0£ or non.. the C<;lllrse- ofthE1ir ol'c,linary ,not seem ito; treat the {qe pqllIic !rfitherthanqf the city. JIis ()fficers of ,the of healt1\n ((parities, nre, .in.tpe .of the ;Plllilic the corpo,t'lltioP
WALLACE,l., '. The
the use of those who resort to. them. Many cases are reported in the of New York has been held decisions of the state courts in which the responsible to persons who have sustained injuries in consequence of obstructions which have heen negligently suffered to intercept the safe use obligation of the city to keep its streets in such c0ll;of tl],e dition that those who use them may do so safely has been repeatedly declared; and the failure to remove ice or snow or dangerous accurimlationa ofany kind by the proper authorities is a breach of that obligation. Soo p1'Q'ltil1ence v. Clapp, 17 How. 161; Todd v. City of Troy, 61 Yo The duty of cleaning' the streets necessarily comprehends the duty ofremoving such accumulations. It is quite immaterial that the powers and duties of the commissioner are plenary, and within their sphere exclusive of the authority of other officers of the city. The real question is whether his duties are such as primarily rest upon the municipality itself. Barnes v. District of-GoZumbia, 91 U. S. J540; Bhrgott v. Mayor, 96 N. Y. 264. The precise question has been resolved against the contention 'of tbereapondentB in the case of Engle v.Mayor. The decree of the district court is affirmed. been reported, It was a Engle ... Mayor. referred to above. has ne1er of the superior court of New York city in October. ,1885. on motion for new trial on the judge's minutes. The opinion was NOTElJi THE ED1TOR.
'. 'INGIUJLU[;J. The of street cleaning is regulated bl subchapter 14 of chapter ·110 of .the Laws of the " Collsolidation. Act. Bection704 provides that "the deJ>lIrtment .of street cleaning shall have exclusive charge ot the cleaning of streets. and the removal of ashes 'and garbage in the city. The commissioner of street cleaniIlg IIhall have power aBda1;lthority, and i/5 charged with the duty, of causing the streets ofsald city *' * * to be cleaned, and kept clean at all times;, und ot removing from said city, orotherwise disposing of, as often as the public health and nse of the streets may all street and garbage; and ot removing new·fallen spow from leading thoroughfares. and such other streets 'andavenues as' may be found practicable." Section 705 provides ·that the" said commissioner shall hay!! engage, and, in his discretion,discharge from time to time; all such 'clerks, laborers, 'and other employes, and to .fix their compensation. as shall be necessary and proper in executing the duties hereby imposed upon him·. * * 'tile said. coJWl!,i8Sioner shall also have power to hire or pUl'(lhase for his use. as.such commissioner, . * * horses, steam-tu!l's, scows boats, vessels. machines, tOols, and other property requireclfor,the economICal and effectual performance of his said duty.", And. the defendant claims the. power by the.street cleaniItg department, under the proviSIOns of thIS act, IS governJP,ental and pubhc, and comes within the principle established by the case of Maxmillian v. Mayor, ete., 62 N. "¥".160. The JP,unicipal corporlltion .of the city of New York, having the powers conferred upon it rtlspectirig streets within its limits, to the public a duty to keep said streetlin a sate condition; and this duty rests upon an express or implied accept'anqe· of power, andis stat¢d by the court In the case of Maxmillian v. Mayor, etQ" supra, to be a duty with which the city is charged for its own corporate benefit, to be ·peiofotmedby itl own agents, 8&' its own corporate act. Conrad v. Trustees. 16 N. Y. IllS. In Lloyd v. Mayor, etc., I) N. Y.875. the court of appeals expressly held that the power and duty to clean sewers in the city is clearly ministerial, and .1alls witliin the eius,'ofpri'f'qte powers; and tbat the corporation wasliablll for the negligence of one .of In this case It. is shown that the pilot of the employed' by thllstreet cleaning department in the removal from the mee.ts. Of. tbeclty,.stree.tswee.Pings,.ash .. . ..es,andgar.bage. ctin.gas. S.UCh.,un.dertheau.'cited, he was the agent of the city in the of ,the duty with WhiOht1l-e¢ity is charged for its own.'corporate benefit. aud.the CIty was liable tor the .1legllgentU.ie of its .property'by its own servant 01' sub.servant. .Lee Y.; .village of SaJ;!,4y,J;liU.tQ:N. Y . Br the v.eJ.'lliot ofthejury case ,it is8ll:tablished ,that ttryrywetl fCi'l\Vas caused by negligence of the tblnk1bBt 1;b8.cl.ty,iBliable. '" tl!ial denillcL), ,"" 'U h , " . . 0 ' ·. A.
vol. 40. WILSON '11. FINE. (Oircuit Oourt, D. Oregon. September 2, 1889.) PuBLIO
jeot to entry thereunder, cannot be !let aside or canceled by the land department, oli ite own motion, for fraud or mistake committed or occuring in obtaining or issuing it. In such case the government must seek redress in the courts, where the mattA3r may be heard and determined aqcording to the law applicable to the rights of individuals under like circumstances. Smith. v. EwIng, 11 Bawy. 56, 28 Fed. Rep. 741, affirmed. (SyllabU8bl/ th.6 Oourt.)
An entry and certifioate, issued to & settler under the homestead aoHor land sub
OF ENTRY AN:D CBRTIPIOATB.
At Law. Action to recover possession of real property. Oharles B. Bellinger, for plaintiff. Albert.H. Tanner, for defendant. DEADY, J.. This suit is brought to recover the possession of a quarter section of land, situate in Lake county, Or. From the amended complaint it avpears that the plaintiff is a citizen and the defendant a citizen of Oregon; that about three years com/llenCemEJDt of this action (February 27, 1889) one G. C. Alexander duly received a final certificate to the premises, as a settler thereon under the homestead law, from the proper officers of the land department of the United, States, who thereafter duly conveyed the Same to the plaintiff; that thJf plaintiff is the owner of the premises in fee, and entitlea to the possElSsion thereof; that about January 1, 1889, the plaintiff being in the possession ?f the premises,as such owner, the defendant entered thereon and' evicted him therefrom, and now wrongfully withholds the possession from him. The defendant demurred' to the complaint, for that it did notappear that the plaintiff had the legal title, without ",hich the action for not be maintained 'in. this court·. ' . After"the argument the demurrer was overruled, the court holding that the prior pOllsession of real property is a sufficient legal estate therein to enable a party to maintain in this court to recover the possessionof the same from an intruder. . The .defendant then answe'red. The answer,contains specific denials of sundry allegations of the complllint, and also two defenses; each of which therein" a and defense," althqugh 'there ill but <)Ueanswer containing-these denials and defenses. Comp. 1887, §§ 71,72,' . '. . ", .' The first defense is that at and prior to the entryofthe premises by Alexander the same was of the United. States, andsubjel:\t to entry under the homestead law, at Lakeview,Or.; that prior to his premises Alexander hadacquired'a quarter section of public land, under said law, in California, and was not entitled at the time ofs\lch e-n,try and the issue of' said final certificate .to enter on. settle'upon any of the public land underthtl homestead law; and that
WILSON 11. FINE.
53
said entry and certificate are illegal and void,-of all which the plaintiff had notice before the date of the conveyance from Alexander. The second defense is that the officers of the land-office at Lakeview, Or., "having been informed," after the issue of the certificate to Alexander, that he had acquired a quarter section of land under the homestead law prior to his settlement on the premises, set aside and canceled said entry and certificate, and reported the facts to the commissioner of the general land-office, who thereupon canceled said entry and certificate on April 27,1889; that said Aiexander was duly notified of said "proceeding" before said officers, and appeared and was heard therein; that about January 1, 1889, the defendant, "with the advice and consent" of the register and receiver, settled on the premises with the intention of claiming the same under the homestead law, he being qualified so to do, and "went into the peaceable possession of the same, and ever since has been and,now is in possession of such land, as such settler,and is entitled to remain in the. possession thereof in accordance with the provisions of said Jaw and the regulation of the interior deparhnent, and within the time allowed by law he offered to file his horr.estead application and perfect his entry" in the land-office at Lakeview, "and has been instructed and advised by the commissioner of the generalland-oflice to remain in possession of said land, as such settler, and that be was at the time of the commencement of this action, and ever since has been, and is now, in the possession of the land described in the cpmplaint, under the authority and by the direction of the department of the in. terior and the commissioner of the "-of all which the plaintiff had notice at the time of the conveyance to him from.Alexander. To these defenses a demurrer is interposed. The second defense will be considered first. It admits, by necessary implication, that Alexander obtained the certificate for the land under the homestead act by complying with the provision!.'! thereof, including the payment afthe price and the five years' residence and cultivation, about February, 1886. To avoid the effect of these facts it is alleged in the defense that the officers of the district land.office, "having been informed" that ·der had had the benefit of. the homestead act,of their own motion insti. tuted a "proceeding" to set aside and cancel said certificate on that ae.count, which was done, and reported to the commissioner, who, on their recommendation, affirmed their action. It matters not what advice or direction was given the defendant by any officer of the land department cqncerning the possession of tha premises. Neither of tpem had any power or Ituthority to authorize or direct him to take possession of the land, and it is not credible that they did do so. If the law and the 1ilCts warranted him in taking possession of the premises, wtIl and good; otherwise not. The fiat of an ·officer of the land department is llot]aw, nor is this a government by Pasha. "proceeding" to cancel Alexander's. entry and I think -eertificatewasan arbitrary and illegal one. There was no contest about