Hyperlawhypertext legal database Berrian v. Mayor of New York 27 N.Y. Super. Ct. 538

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Berrian v. Mayor of New York

27 N.Y. Super. Ct. 538 4 Rob. 538 Court N.Y. Super. Ct. English

Delivered by Robertson, Ch. J.

Contents

Majority

p. 538
Edward Berrian et al. plaintiffs and respondents, vs. The Mayor, &c. of the City of New York, defendants and appellants.

Headnote

1. A payment, by a debtor, made and received by the express terms of the writ- , ten acknowledgement of it, “ in full of all demands,” operates as a direct repudiation and denial of any further liability, and cannot .operate to take the residue of a demand out of the statute of limitations.
55. The failure of the creditor to observe the contents of a receipt signed by him, and his protest against receiving a payment in full of all demands, are immaterial, after he has been informed that such payment is upon that condition only, and the receipt in consequence is presented to him to sign. The agreement so entered into cannot be explained away by parol evidence, merely because it accompanies and is contained in an acknowledgment of the receipt of the money.
3. The question of the operation of the acceptance of a payment of a less sum in satisfaction of a larger demand as a discharge, is entirely different from that of its effect in taking the residue of such demand out of the operation of the statute of limitations.
4. Although the application of money paid generally may be made by the creditor, to which of several claims he pleases, when not made by the debtor, or, if not made by either, is made to those which first accrue, such application is not made upon the ground that it is most beneficial to the creditor. The application recognized by law, as made by the debtor, need not be made in express terms; it may be inferred from circumstances.
5. No stronger case for the implication of a direction by a debtor first to apply money paid by him to that part of his indebtedness which accrued last, can well be imagined, than when his earlier indebtedness is barred, either by the statute of limitations or otherwise, and such payment is expressly made and received in full of all demands. IPer Robertson, Oh. J.
6. Such application is most favorable to the debtor, and to suppose an intent by him to make a different one, would be to infer his voluntary retention of a
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liability, in the face of his making such payment solely on the faith of a waiver by the creditor, of any other claim. Per Robertson, Ch. J.
7. A claim to apply the rule of law, which disregards a parol agreement to accept a sum less than what is due, in satisfaction of such greater demand, is-not so meritorious as to require the application, by presumption of law, of a general payment to be made in such a manner, as to enable the party making such agreement to escape its performance under that rule.
8. A stale claim, revived nearly six years after an agreement to receive a certain sum in full of all demands, does not merit much favor, in regard to the claims to which a payment made on general account is to be applied; particularly against a municipal body, one of whose financial agents, who made such payment, is dead. Per Robertson, Ch. J.
9. Neither the authority given by the legislature to a municipal corporation to raise a specified sum to pay the amount due to individual creditors, nor their actual collection of that sum by taxation, can convert them into private trustees or agents of such creditors, and make them liable for money had and received; since they collect and disburse it as public agents. Whatever remedy the creditors may .have, to obtain such sum, under such statute and collection, by mandamus or other process, it is not by an action.
10. Neither the promises of the financial officer of a city to pay a demand, nor the report of the financial committee <jf the common council, in favor of payment, made preparatory to collecting* the tax levy, are such an admission in writing as to bind the city, so as to take the case out of the statute of limitations.
(Before Robertson, Ch. J., and Barbour and Garvin, JJ.)
Heard January 14, 1867;
decided —--, 1867.
Appeal from a judgment entered upon the report of a referee.
The action was brought to recover a balance of $2242.67, with the interest claimed to be due the plaintiffs for work done and materials furnished. At various times between the 1st of September, 1857, and 1st of April, 1858, the plaintiffs furnished work and materials for repairing and fitting up engine houses and bell-towers in the city of New York. . The work was done without contract, in separate jobs or parcels, each less than $250 in amount, under the direction of the chief engineer of the fire department, and without any resolution or direction of the common council authorizing or directing the same. The amount of the work, &c. is alleged in the complaint, as amended,to be $14,900.
The proof fixes the amount at $12,179.66. The defend
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ants had paid to the plaintiffs for said work (as found by the referee,) as follows:
In March, 1858, In June 21, 1858,
$2610 94 10,046 39
Making in all
$12,657 33
When the bills were presented the comptroller employed a person (Lewis) to examine and make a valuation of the work done. He recommended that a reduction should be made thereon. The defendants thereupon, on the 21st of June, 1858, paid to the plaintiffs the sum of $10,046.39, and received from them a receipt “in full of all demands against the city of Hew York,” which the defendants insisted was a bar to the plaintiffs’ claim. The plaintiffs alleged that said receipt was given “under protest.” That in the tax levy of 1858, (Laws of 1858, eh. 305,) enacted April 17, 1858, the sum of $14,900 was directed to be raised for payment of their claim ; that having been paid only $12,657.33, they are entitled to recover the balance—$2242.67 and interest—for which they brought this action (as the defendants alleged) on the 6th of May, 1864.'
The defendants pleaded, 1st. Cfeneral denial. 2d. Payment in full as above stated, 3d. That the claims and demands of the plaintiffs did not accrue within six years before the commencement of the action.
The referee gave judgment for the sum claimed, with interest, whereupon the defendants appealed.
R. O’Gorman, for the appellants, defendants.
I. There is no proof that an ajjpropriation covering the expense was made by the common council prior to the performance of the work and the furnishing of the materials. Without such appropriation such expenditure could not be legally made. Such proof, therefore, is absolutely essential to establish the plaintiffs’ right to recover. (See sec. 28, charter of 1857, p. 276, Valentine’s Laws.)
II. It is admitted that the work was not done under or in
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pursuance of any contract; therefore, in order to render the defendants liable it must be established that the necessity of the work was certified by the head of the appropriate department, and that it was authorized or directed by the common council, pursuant to the provisions of section 38 of the charter. (See Valentine’s Laws relating to the city New York, p. 279.)
The plaintiffs do not pretend that the common council authorized or directed the work, but rely upon the facts : (1st.) That it was done under the direction of the chief engineer of the fire department on and upon the property of the city. (2d.) That the comptroller promised that it should be paid for. (3d.) That the defendants have the use, enjoyment and benefit of it. The fallacy of the plaintiffs’ position consists in regarding the officers of the city as agents having general power to bind it and render it liable by their acts, when in truth these officers possess only the powers and duties prescribed in the statutes which define their functions, and the city cannot be made liable by any act of such officers which is not authorized by those statutes. (Bonesteel v. The Mayor, 22 N. Y. Rep. 162 Donovan v. The Mayor, 33 id 291. Brady v. The Mayor, 2 Bosw. 173 . Smith v. The Mayor, 4 Sandf. 221 27 How. 44 . 23 Barb. 349 . 15 Now. 462. 24 Barb. 427 .) The chief engineer had no power to employ the plaintiffs; without authority from the common council. The comptroller, by his promise, could not bind the defendants to pay a claim illegally contracted. Nor could the use and enjoyment of the work furnished ratify or create by implication a contract to pay therefor. (McSpedon v. The Mayor, 7 Bosw. 601 . Peterson v. The Mayor, 17 N. Y. Rep. 449 .)
III. The plaintiffs have been paid in full for the work done.
1. It is submitted that the plaintiffs are bound by their sworn bill of particulars and the testimony of Mr. Berrian that “ the items of the bill are true and correct,’’ which fixes the amount at $12,178.66 ; although he afterward says, that the amount of the bill in the tax levy was $14,900. The referee has found that the defendants have paid $12,657.33,
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which exceeds the amount of the bills established by the plaintiffs’ testimony.
2. The payment of J une 21, 1858, was made after dispute concerning the value of the work done as payment in full by the defendants, and the receipt in full then given is a bar to the plaintiffs’ claim for further payment. The rule that payment of a less sum in satisfaction of the debt is not good, as an accord and satisfaction, applies only when there is no dispute as to the amount or existence of the debt. In this case there was a dispute as to the value of the work done, and after examination and controversy the defendants fixed upon an amount which the plaintiffs received, and for which they gave their receipt in full. Such receipt, given under such circumstances, is a bar to subsequent action. (Palmerton v. Huxford, 4 Denio, 166 . Pierce v. Pierce, 25 Barb. 243 .)
IY. Hone of the items of indebtedness alleged in the bill of particulars accrued within six years before the commencement of this action ; and the plaintiffs rely upon the alleged partial payment on June 21, 1858, to take the demand out of the statute. It is a settled rule of law, that in order to take a demand out of the statute of limitations by part payment, it must appear that the payment was made on account as part payment' of a larger debt. (Arnold v. Downing, 11 Barb. 556 .) Unless it amounts to an admission that more is due, it cannot be an admission of existing debt. ( 19 Wend. 401 . 6 Eng. Law and Equity, 520.) And it must be an unqualified admission without any circumstance indicating an intention not to become liable. Whatever may have been the mind of the plaintiffs in receiving payment, the testimony of (Groesbeck, the fact that a receipt in full was exacted, and the circumstances surrounding the payment made of June 21, establish that such payment was made by the defendants and intended by them to be in full, not as part extinguisment of all the debt. There was no circumstance indicating an admission that more was due. Every circumstance indicates and manifests an intention not to become liable for any further sum. The payment, therefore, cannot be considered an admission
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that any larger sum was due, and is insufficient to take the case out of the statute.
Y. The fact that $595,441 was raised in the tax levy of 1858 to pay “ arrearages of 1857,” and $14,900 was stated in the budget upon which that law was based, as the amount of the plaintiffs’ claims in arrear, does not, ex próprio vigore, entitle them to demand and receive that sum from the defendants. The tax levy only places the money in the hands of the defendants to pay the plaintiffs’ claim when he shall have established it pursuant to law, if disputed.
YI. The exceptions are well taken. The promises or declarations of the comptroller testified to were no part of his official duty, and the defendants are not bound by them. (See cases cited under Point II.)
0. Fine, for the respondents, plaintiffs.
The whole case shows that the plaintiffs’ claim is meritorious, and should he paid. The work and materials were all done and furnished by the plaintiffs to and for the defendants; were well done, at fair and reasonable prices; the city accepted it all, and are using it to this day. It is, therefore, the policy of the law, and it will he the pleasure of the court, to aid in legally establishing the plaintiffs’ claim. The defendants seek to avoid payment, for what they are now using and enjoying, on purely technical grounds. The defendants now say that they are not liable, because: 1. The plaintiffs have not proven affirmatively that there was an appropriation covering the expenses, made by the common council prior to the performance of the work, &c. and refer to section 28, charter of 1857, page 276, Yalentine’s Laws. 2. The plaintiffs, they say, have not proven affirmatively that the necessity of the work was certified by the head of the appropriate department; and that it was authorized or directed by the common council, and refer to section 38 of same charter. (See Valentine’s Laws, p. 279.) These positions taken by the defendants are not, nor is either of them, tenable, because:
1. The defendants have not pleaded either of these things,
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nor any part of the statute, behind which they now seek to avoid liability, although there is nothing in the case to show that the statute was in any way violated. This plea was necessary to raise either of these questions. In the leading case of Donovan v. The Mayor, &c. ( 33 N. Y. Rep. 291 ,) this plea was interposed, and the questions there raised under the same- charter. The statute was pleaded. It is an elementary principle of pleading, that every thing in a pleading, in regard to fundamental requisites, will be construed most unfavorably to the pleader. ( 12 N. Y. Rep. 201 . Beach v. Bay State Go., 30 Barb. 433 ; 18 Hoio. 335.) Again, when an answer is susceptible of being construed to contain either of two defenses, that most unfavorable to the pleader will be taken. (Bates v. Roselerans, 23 How. Pr. 98 .) The charter of 1857, above referred to, does not declare contracts void, if not made in the way provided. It simply provides how they shall be made. This affects the question of pleading, and is, of itself, a reason why the statute must be pleaded by the defendants before they can have the benefit of it. They must, by plea, negative a compliance with the statute. Usury cannot be proven by the defendants, nor even, if shown by the plaintiffs, can it be available to the defendants, unless pleaded, although it is a violation of the statute, and against public policy. (Scott v. Johnson, 5 Bosio. 213. 16 N. Y. Rep. 297 . 12 id. 9. The People v. Carpenter, 24 id. 86.) The Code, section 163, provides for, and thereby requires, the pleading of private statutes. An ordinance of the common council of the city of New York is not a public statute, and must be specially set forth in a pleading. (The People v. The Mayor, &c. 7 How. 81 .) The charter of the city of New York is a private statute. It does not “ relate to the kingdom ” or state “ at large,” and as such it must be specially pleaded. (1 Kent’s Com. 506, 508, 7th ed. marg.pp. 459-461. Wright v. Patón, 10 John. 300 .)
II. The law will presume that public officers and officers of the law have done their duty, and filled their positions, as required by law, until the contrary is first alleged, and then
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proven affirmatively by those who seek to avoid liability in consequence of a supposed dereliction of duty, especially when on the part of their own agents. (Downing v. Rugar, 21 Wend. 178 . Hilts v. Colvin, 14 John. 182 . 2 Cowen’s Tr. 403.) All presumptions are to be indulged in favor of the regularity of all acts, &c. exercised under the legislative power, &c. Those who would impeach it have the burden of disproving a compliance with’ the conditions imposed by law as requisite to the exercise of the power, &c. (The People v. Carpenter, 24 N. Y. Rep. 86 . Elwell v. Dodge, 33 Barb. 336 . Hartwell v. Root, 19 John. 345 . Jackson v. Belknap, 12 id. 96.)
III. There is no evidence even that all the statutory requirements were not complied with. On the contrary, it is found as a matter of fact by the referee, and proven, that the plaintiffs were properly employed by the defendants, even if that subject could be gone into under the pleadings in this case, which cannot be done.
IV. That portion of the charter of 1857, § 38, &c. relied upon by the defendants to defeat the plaintiffs* claim herein, but not pleaded, even if pleaded, and had been established, could have no application in this case, for its operation as to this claim, of these plaintiffs, has been repealed by the same authority creating it, the legislature, and also by the defendants themselves, by express authority, direction and appropriation of the exact amount of money to pay this claim.' The charter referred to took effect on the first day of May, 1857. The appropriation and direction to pay this claim was in 1858. There can be no doubt, that the body having authority to make a law,, has equal power to repeal it, or restrict or qualify its operations. (The People v. Haws, 36 Barb. 59 . The People v. Flagg, 16 id. 503. The People ex rel McSpedon v. Haws, 21 How. Pr. 178 .) Again, the referee has found as a matter of fact, that this appropriation, &c. was made to pay this bill of the plaintiff, and the whole of it, and that such was the intention of the common council and the legislature, and that the defendants received the money for that purpose,
p. 546
and in trust for the plaintiffs. This finding of fact, which is supported by all the testimony on the subject, relieves the case of any doubt for whom this money was intended ; and thus the plaintiffs are, by this appropriation, &c. ex propria vigore, entitled to receive the full amount of their bill so appropriated, for the balance of which this action is brought.
Again : Contracts morally good, but which are made during the existence of a statute forbidding them, are made valid by the repeal of the statute. (Central Bank v. Empire Stone Dressing Co., 26 Barb. 23 . Curtis v. Leavitt, 15 N. Y. Rep. 9 .)
V. The defendants pleaded that on the 23d day of June, 1858, they adjusted and settled the whole claim mentioned in the complaint ($14,900) with the plaintiffs, for and at the sum of $10,046.39, in full satisfaction, &o. and they rely upon the receipt for $10,046.39, of June 23, 1858. On this point they are met by the evidence of the case, and the finding of the referee thereon, as matter of fact. The plaintiffs never knew that they had given a receipt in full when they received the $10,046.39 ; never intended to give a receipt in full, or accept that amount in full; but expressly said they did not, and would not, receive that amount in full, and said they would sue for the balance, and the defendants never supposed that the plaintiffs received it in full. The plaintiffs even believed that the receipt was altered after they had signed it, by inserting “ in full,” &c. The law is well settled that payment of a less sum in satisfaction of a greater debt due, is not good as an accord and satisfaction, or otherwise. (Hunt v. Blomer, 5 Duer, 202 . Hendrickson v. Beers, 6 Bosw. 639 . Thomas v. McDaniel, 14 John. 185 . Rourke v. Story, 4 E. D. Smith, 54. 17 John. 169 .)
VI. The defendants further pleaded the statute of limitation, but only as to those claims and demands alleged in the complaint and bill of particulars to have been for work and labor done, and materials furnished prior to the 8 th day of December, 18,57. Here, too, the defendants are met by the testimony ip. the case, and the finding of the referee.
p. 547
1. Only a comparatively small portion of the claim dates prior to the 8th day of December, 1857. It amounts to about $3482.66, leaving a balance of $11,417.34, to which the statute is not interposed. Thus on the case, as put, the balance of $2242.67, is all taken out of the operation of the statute, and the payments made were, as matter of law, applicable, and applied to, the liquidation of the earlier indebtedness. '
A party paying money, who is liable on more accounts than one, may, at the time of the payment, apply the payment as he sees fit; if he does not, the party receiving the money may apply it as he pleases ; if neither party, at the time, makes the appropriation, the law applies the payment on the debts or items, which are first due in point of time. (9 Cowen, 747 17 Wend. 19 . 3 Denio, 284 .)
2. The referee has found, (and that finding is supported by the evidence,) that $10,046.39 was paid by the defendants, and received by the plaintiffs, on the 24th day of June, 1858, on account of the total indebtedness, or claim of $14,900. This date (24th of June, 1858,) is within six years prior to the commencement of this action. This action was commenced on the 6th day of May, 1864. Part payment, of course, within six years, takes the case out of the statute.
3. By the Laws of I860,, ch. 379, it is necessary, before a cause of action shall accrue against the city, and before the action can be brought, that two written demands must be made upon the comptroller of this city, that the first of such demands shall be more than twenty days before the second demand, and that the second demand shall be made after the expiration of twenty days next ensuing said first demand, both which demands must be refused before suit can be brought. The incapacity thus created, to sue on a claim due before the passage of the act, should, on principle, create a new period from which the statute runs, or at least extend the period in which an action may be brought, sufficiently to embrace the time necessary to comply with this new requirement, or element of a cause of action against the city of New York.
p. 548
4. The referee has found, as it was proven, that the defendants had received, within six years prior to the commencement of this action, to and for the plaintiff s’ use and benefit, the entire amount of the plaintiffs’ bill; that is in trust for the plaintiffs. The statute, in such a case, would not commence to run until a demand bn the defendants, in view of the trust; for no cause of action would accrue, on that ground, until a refusal after such a demand. This kind of a demand was made by Mr. Berrian, in 1862, and by Mr. Ryers, in 1863.
VII. The defendants took certain exceptions on the trial, ' the consideration of which alone remains ; counsel ‘then on the trial, misapprehended the object for which the questions excepted to were asked, and the principle on which they were received. The defendants pleaded and contended on the trial, that Comptroller Flagg, and those acting under him, had taken the receipt for $10,046.39 from the plaintiff’s on the 23d of June, 1858, and that the plaintiff had given such receipt in full settlement and discharge of all their claims ¿gainst the city, (Mr. Flagg being comptroller at this time,) and that all subsequent comptrollers had made the same claim. These questions, and the answers thereto, were competent, not to create a liability, but to show, or as tending to show, that the defendants never received, and the plaintiffs never gave, the receipt of June 23 or 24,1858, for ($10,046.39,) in full settlement and discharge of their claim, but that such receipt was given and received simply on account of a larger indebtedness. They also tended to contradict the defendants’ witnesses. They might also have been competent, as evidence on the subject of the original employment of the plaintiffs, (especially as the same comptroller (Mr. Flagg) paid what was paid to the plaintiffs, and took the receipt above referred to,) and also on the value of the work, especially as the same comptroller (Mr. Flagg) had hired the inspector, (Isaac Lewis,) according to whose estimate the defendants themselves pleaded, and sought to prove that the payment to, and alleged settlement with, the plaintiff, by this very comptroller, was made.
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By the Court,

The only circumstances upon which the plaintiffs rely, to take so much of their demand as accrued before December 8,1857, out of the statute of limitations, are two payments alleged to have been made by the defendants on account of such demand, within six years before the commencement of this action. The date of such commencement is not contained in the case, as required by the 43d general court rule, but it was evidently not before the date of the summons, in May, 1864. The first of such payments found by the referee, of §2610.94, as having been made on the 3d of March, 1858, is not alleged in the complaint, nor is there any evidence in the case of any such sum having been paid. The only testimony relating to any other payment than that of §10,046.79, made in July, 1858, (to be presently noticed,) was that of one of the plaintiffs, (Berrian,) who testified that an appropriation was made by the city through the common council, of §14,900 to pay the plaintiffs, on the VJth of March, 1858, as he thought, and that the whole amount of their bills was §14,900. “Part of these bills,” as he stated, “were assigned, to the amount of about §2000. This assigned amount was paid by the city * * about the time of the appropriation.” That “appropriation,” another witness (Taylor) testified, was made by a report of a conference committee of both boards of the common council, adopted in January, 1858, and approved by the Mayor, on the 3d of March, 1858. Such payment of such assigned claims, even if then made, was, however, more than six years before the commencement of this action ; so that even if an unconditional payment on account of the whole demand, could be established by a general statement of such payment, (without specifying to whom, by whom, or under what circumstances it was made, or even stating that the witness saw it made,) unless a payment to assignees of some bills for services, rendered on separate occasions, and assigned separately, could operate in law as an admission to take the whole claim out of the statute, such a payment must be disregarded as having any effect to revive the residue of it.

The other payment, of upwards of ten thousand dollars,

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($10,046.39,) in June, 1858, was made and received in full of all demands, expressly, by the agreement contained in the written acknowledgment of it. It, therefore, operated as a direct repudiation and denial of any further liability, and could not operate to take the residue of any demand out of the statute of limitations. (Arnold v. Downing, 11 Barb. 556 , and cases cited. Deyo’s ex’rs v. Jones’ ex’rs, 19 Wend. 491 . 6 Eng. L. & Eg. 520.) The question of the operation of the acceptanee of such payment in satisfaction of a larger demand ás a discharge, is entirely different from its effect in taking the residue of such demand out of the operation of such statute, and being, therefore, immaterial to the case, need not be discussed. The finding of the referee that the plaintiffs never agreed to accept such sum in full of all their claims, even if not' inconsistent with the fact most material on the question of the revival of the claim that the defendants only paid it upon condition that it was so accepted, and their agent so stated when he paid it, thereby denying any further liability, was directly in the face of the written agreement to that effect, contained in the acknowledgment of such payment, signed by one of the plaintiffs ; in which, of course, all prior negotiation and discussion was merged. The failure of such plaintiff to observe the contents of what he signed, and his protest against receiving such sum upon any such condition, as being in full of all demands, were immaterial, after he had been informed that such payment was upon such condition only, and such receipt, in consequence, was presented to him to sign. The agreement so entered into cannot be explained away by parol evidence, merely because it accompanies and is contained in an acknowledgment of the receipt of the money.

The defense of the statue of limitations being thus unaffected as to all claims prior to December, 1857, by any admission by payments, the sum paid in June, 1858, is to be first applied in payment of that part of the claims of the plaintiffs which accrued after that date. It is true, as a general rule, that the application of money paid generally, may be made by

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the creditor, to which of several claims he pleases, when not made by the debtor, or if not made by either, it is applied to those which first accrued, but not upon the ground that such application is most beneficial to the creditor. The debtor, however, need not make, on his part, an express direction for such application, but one may be inferred from circumstances. (Stone v. Seymour, 15 Wend. 19 . S. C. 8 id. 403. Robert v. Garnie, 3 Caines, 14. Shaw v. Picton, 7 Dowl. & Ryl. 201. Taylor v. Kymer, 3 Barn. & Ad. 333. Lysaght v. Walker, 5 Bligh, N. S. 1.) No stronger case for the implication of a direction; by a debtor, first to apply money paid by him to that part of his indebtedness which accrued last, can well be imagined, than when his earlier indebtedness is barred either by the statute of limitations or otherwise, and such payment is expressly made and received in full of all demands. Such application is most favorable to the debtor, and to suppose an intent by him to make a different one would be to infer his voluntary retention of a liability, in the face of¡ his making such payment solely on the faith; of a waiver by the creditor of any other claim. A claim, to apply the rule of law which renders null a parol agreement to accept a sum less than what is due in satisfaction of such greater demand, is not so meritorious as to require the application of a general payment to be made in such a manner, as to enable the party making such agreement to escape its performance under such rule. The statute of limitations is sometimes considered an ungracious defense, but it can only answer the purpose of its passage, when it protects a party from the consequences of a loss of papers and evidence. In this case one at least of the two comptrollers, with whom the plaintiff's negotiated, died before the action was brought. A stale claim revived nearly six years after an agreement to receive a certain sum in full of all demands, does not merit much favor in regard to the claims to which a payment made on general account is to be applied, particularly against a municipal body, whose financial agent who, made such payment and his successor are dead. The application of such payment to the- claims of the plain
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tiffs in evidence which accrued after the 8th of December, 1857, would have fully satisfied them. It is true, the referee found the value of the work and services mentioned in the complaint and schedule annexed to have been $14,900, which appears to have been bas> :d upon the testimony of the plaintiff Berrian, as to the accuracy of a bill (marked A) exhibited by him on the trial. This seems to have been the bill of particulars, marked in the same way, which was after-wards introduced in evidence, and was apparently annexed to the complaint. But by such, bill of particulars the only amount claimed was in all but $12,178.66. The discrepancy may arise, from omitting from such bill the items said to be assigned and paid to the assignees in March, 1858, found by the referee to amount to $2610.94, the payment of which left only $12,657.33 due to the plaintiffs. Taking either that or the amount of the bill of particulars as the total of the claim of the plaintiffs unpaid in June, 1858, less than $9500 of it accrued after the 8 th of December, 1857. Over $3400 of the items mentioned in such bill appear by it to have accrued before that date. This would leave from $800 to $1000 of the sum paid and received in June, 1858, to be applied on account of the indebtedness of the defendants before the 8th of December, 1857, and enough to satisfy all due afterwards.

Neither the authority given by the legislature to the defendants to raise by taxation $14,900 to pay what was due the plaintiffs, or their actual collection of that sum by taxation could convert them into private trustees or agents of the plaintiffs ; and liable for money had and received, because they collect and disburse it as public agents. Whatever remedy the plaintiff's may have to obtain such sum under such statute and collection, by mandamus or other process, it is not by an action. Nor were the promises of comptrollers of the city, or the report of the finance committee of the common council, preparatory to collecting the tax levy, such an admission in writing as to bind the defendants, so as to take the case out of the statute of limitations.

The foregoing views render it unnecessary to consider

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whether the defendants escaped liability for the work done and materials furnished, in consequence of the want of a previous appropriation and authority from the common council of the city. The referee’s report cannot be sustained. The judgment upon it must be reversed and a new trial had, with costs to abide the event, and the order of reference must be vacated.

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