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to the town board, at their next annual meeting, and the same shall be audited by them and collected in the same manner as amounts voted at town meetings."
I think that this statutory consent is not satisfied by a confirmation or approval after the work has been done, but that the statute requires an assent to the doing of the work, inasmuch as the giving of the consent involves a determination whether the work is or was proper. Consent supposes a physical power to act, a moral power of acting, and a serious determination, and a free use of powers. Bouvier, Law Dict. "Consent," as a substantive, is the synonym of "assent," "acquiescence," "concurrence,” and means an agreement or harmony of opinion or sentiment. Clem v. State, 33 Ind. 418, 431. Consent is an act of reason accompanied with deliberation. Anderson, Law Dict., quoting i Story, Eq. Jur. 222. Judge Story, in his work cited, says:
"Consent is an act of reason accompanied with deliberation, the mind weighing as in a balance the good and evil on each side. And therefore it has been well remarked by an able commentator on the law of nature and nations that every true consent supposes three things: First, a physical power; secondly, a moral power; and, thirdly, a serious and free use of them."
Consent is "to agree in sentiment; be of the same mind; accord; be at one. Con-sentire, to feel together.” Cent. Dict.
If the statute regard such approval as is sought as tantamount to assent, then the town board is but a mere auditing body. There is already provided by law a town board of auditors, and the law would not, save for some special reason, provide a dual audit. The learned counsel for the relator argues that, as it stands admitted upon the record that the highways repaired were in an unsafe and dangerous condition, the situation required the town board to consent. This is no reason why the commissioner should disregard the law. “Necesșity cannot, in any event, take the place of statutory authority.” Parker, C. J., in People ex rel. Morey v. Town Board, 175 N. Y. 394, 400, 67 N. E. 620. But there is not even the plea of necessity in this case. Necessity of repairs, yes; but not necessity to disregard the requirement of submission to the town board. The emergency must be dire indeed that justifies an official to disregard the plain, formulated procedure of the law. Even in so small an affair, such omission smacks too much of prerogative and dispensation to commend itself to the courts. Moral certainty as to the result of an official act is no sufficient reason for not invoking the action. The town board, as well as the commissioner, must determine upon the work, even if the discharge of its duty must have been an accord.
The learned counsel for the respondent argues that, if the board had refused consent, mandamus would have issued to compel consent. Even if the act was "plainly administrative and mandatory, and not discretionary, and was so imperative,” to quote the language of Andrews, J., in People ex rel. Keene v. Supervisors, 142 N. Y. 271, 36 N. E. 1062, that argunient, available in case the town board had refused its consent after opportunity had been afforded to it to pass upon the projected work, cannot be stretched so as to excuse the omission to seek their consent. But the consent named by the statute is plainly a judicial act, in that it contemplated a decision whether or not the
and 120 New York State Reporter highways were damaged or destroyed so as to become unsafe, and to require immediate repair. This required the consideration of a question of fact, and a determination based upon the evidence, and was therefore a judicial function. See People ex rel. Loughran v. Railroad Com’rs, 158 N. Y. 421, 429, 53 N. E. 163. The learned counsel for the respondent cites three cases to sustain the proposition that the town board has the power to ratify the acts of the relator after the work was done. In Trustees v. Bowman, 136 N. Y. 521, 526, 32 N. E. 987, the trustees of the town, having full power to sell the lands, appointed a committee, with certain enumerated powers; and one of the committee thereafter, and without authority, wrote into the resolution certain words of power, pursuant to which a conveyance was made to the defendant. In an action to cancel the deed as ultra vires, the court, per Earl, J., said that the trustees could have ratified the conveyance which had not been authorized. That power is put upon the express ground that the trustees acted for the town, and were clothed with authority to convey the lands. In Peterson v. Mayor, 17 N. Y. 449, the question was substantially similar, in that there was an "officious employ. ment" by a committee, instead of the due employment by the board itself. In Kramrath v. City of Albany, 127 N. Y. 575, 581, 28 N. E. 400, the holding applicable to this case was that a committee duly empowered in the premises might ratify and confirm the irregular action of one of its number in ordering and selecting goods. Moreover, these acts of ratification in the three cases cited are based explicitly upon the doctrine of principal and agent. But this commissioner of highways was not the agent of the town. People ex rel. Morey v. Town Board, supra. This is not a case when officials, clothed with due authority have ratified an act performed in their stead, but one in which they resist an attempt of an official who has disregarded their judicial rights to have the court substitute an ex post facto ministerial act. The case last cited presents an elaborate discussion by Parker, C. J., on the principles applicable to the case at bar. In the course thereof he cites with approval this language of Andrews, J., in People ex rel. Everett v. Board of Supervisors, 93 N. Y. 397:
"To impose liabilities upon towns for the repair of their roads and bridges in any other manner than that provided the statute would defeat the policy of the law as it has stood in this state for upwards of half a century, and would require explicit statutory provision to authorize it.”
While it is entirely true, for the purpose of the demurrer, that the facts as stated in the petition are to be taken as true, namely, that the highways were in a dangerous and unsafe condition, yet, aside from the consideration of the demurrer, it may be germane to say that the court would have no power to relegate the judicial act of consent into the ministerial act of mere approval. And yet the court has, in its alternative writ, done exactly this thing, by "commanding" the board to convene and to give its consent in the manner provided by law to the payment of the claim. It requires no citation of authorities to support the statement that judicial action may be directed, but the resulting judgment cannot be dictated, by the mandamus. This appeal does not hang upon the good faith of the commissioner, to whom no wrongdoing is ascribed, but upon the legality of the practice of seek
ing to bind the town for work upon the ground that it was necessary, disregarding the plain statutory provisions which are prerequisite to the initiation of such work.
The order should be reversed, with $10 costs and disbursements. All concur.
PIER BROS. v. DOHENY et al. (Supreme Court, Appellate Division, Fourth Department. March 8, 1904.) 1. SALES-FALSE REPRESENTATIONS TO COMMERCIAL AGENCY-FRAUD–INTENT.
Where the president of a corporation made false representations as to the corporation's solvency to a commercial agency, and plaintiff, relying on the agency's report, based on the false statements, sold personalty to the corporation on credit, the sale was induced by fraud, though the president did not intend to cheat or defraud plaintiff or others relying on the
report, or to obtain plaintiff's property without paying for it. 2. SAME-KNOWLEDGE OF FALSITY-EVIDENCE.
In an action to recover property alleged to have been sold on credit in reliance on false representations to a commercial agency as to the solvency of the purchaser, evidence considered, and held to show that the agency had, at the time the false representations were made, no knowledge of certain unsatisfied judgments against the purchaser. Appeal from Judgment on Report of Referee.
Action by Pier Bros. against George Doheny and another, as administrators of Lucius Gleason, deceased. From a judgment for defendants, plaintiff appeals. Reversed.
Argued before McLENNAN, P. J., and SPRING, WILLIAMS, HISCOCK, and STOVER, JJ.
Charles H. Searle, for appellant.
WILLIAMS, J. The judgment should be reversed, and a new trial granted before another referee, with costs to appellant to abide event. The action was brought to recover damages for the conversion of 26 bales of hops, of the value of $1,121. The hops were originally the property of the plaintiff. About November 1, 1892, they were sold and delivered to the Greenway Brewing Company, and while in the possession of that company they were levied upon by the sheriff of Onondaga county by virtue of an execution issued upon a judgment against the company in favor of the estate of Lucius Gleason, and were sold February 9, 1893, and bid in for the said estate. After the levy, and before the sale, the plaintiff claimed the hops as its property, and demanded the same of the sheriff, who refused to surrender the same. The estate, with knowledge of the plaintiff's claim, received the hops under the purchase at the sheriff's sale, and appropriated the same to its own use. It paid no cash for the hops, but applied the amount of the purchase price upon its execution. The plaintiff sold the hops to the brewing company upon credit, never received any part of the purchase price thereof, and its claim of title thereto was based upon the allegation that the purchase was induced by fraud and deceit prac
(1. See Sales, vol. 43, Cent. Dig. $ 96.
and 120 New York State Reporter ticed upon it by the brewing company, and by reason thereof no title to the hops passed from it to the brewing company under the sale and delivery thereof. The question litigated in the case was the alleged fraud and deceit. The referee found that there was no fraud or deceit, and that the title did, therefore, pass to the brewing company. This finding was erroneous, and should not be sustained. "Fraud and deceit were clearly established by the evidence, and the plaintiff was entitled to recover in the case. The facts with reference to this issue were not in dispute and, as found by the referee or proven in the case, were as follows: The hops in question were part of 70 bales sold and delivered at one time; the other 44 bales having been consumed before the seizure of the property by the sheriff upon the execution. The brewing company was a corporation with 2,000 shares of stock, of which 1,998 shares were held by John Greenway, the president and treasurer, I share by Lucius Gleason, vice president, and I share by Benjamin F. Hill, secretary, at the time of the sale of the hops. John Greenway was carrying on and managing the business. Plaintiff's New York manager, through an agent, made the sale of the hops, transacting the business with John Greenway. No representations were made by Greenway direct to the plaintiff or its manager or agent as to the condition or standing of the brewing company. The plaintiff
, instead of requiring any statement from Greenway or the company itself, called upon Bradstreet's Commercial Agency for a report as to the brewing company, and received one, and relied thereon in making the sale and delivery of the hops upon credit, instead of requiring cash to be paid therefor. The report furnished plaintiff by the Bradstreet's Agency was compiled from information received from Greenway himself and from other sources, and it contained suggestions by the agency itself. Its representative visited the brewery in June, 1892, and had an extended interview with Greenway with reference to the standing and condition of the brewing conipany and its property, assets, and liabilities. Among other things, he received from Greenway some figures taken from a trial balance, purporting to show approximately the assets and liabilities of the company, as follows: Estimated value of merchandise on hand....
$100,000 m Packages
64,661 56 Bills receivable Accounts receivable
295,988 42 Teams
Bills payable ....
$487,211 32 Balance
$ 41,722 72 (These are the figures and footings as they appear in the record, but the footing of the assets is erroneous. It should be $478,934.04, and the liabilities would then exceed the assets by the sum of $8,277.28. I have endeavored to find out how this error occurred, whether in the printing or in the original statement, but I cannot do so.)
Greenway told the agency representative that the item of bills payable, $480,260.73, represented Gleason's claims, for which he held security in the form of title to the real estate, and had been reduced to about $380,000 from collecting their accounts receivable, and that he (Greenway) was then trying to negotiate a loan on the real estate to pay most, if not all, of Mr. Gleason's claim, and with this object in view had had an appraisal made of the value of all the buildings by two competent and conservative men, who were reliable, and their valuation of the buildings was $545,940, and that, in addition to the buildings, the ground they stood on, having a frontage on Water street of 500 feet, was worth at least $300 a foot, making the total value of the real estate about $700,000; and these statements of Greenway, with the figures, were put in the report made to plaintiff. The agency also put into their report the following facts, learned from other sources than Greenway or the brewing company:
"The business was established many years ago by John Greenway, father of the above-mentioned Greenway. The company has always done a large business, but, owing to losses by bad debts, etc., has not made any money of late years. At the time of senior Mr. Greenway's death the company was quite largely indebted for loans, the amount being about $490,000, and owing mainly to Mr. Gleason and one or two local banks; Mr. Gleason being secured by a mortgage on the company's property. About eighteen months ago the property was sold on mortgage foreclosure, and bid in by Mr. Gleason, who now holds title to the brewery and other real estate owned by the company."
The agency also put into its report the following facts, learned in part from Gleason and Greenway and in part from other sources:
"He (Gleason) executed a contract soon after the purchase, agreeing to reconvey the brewery property to Mr. Greenway upon his paying $12,500 on the 1st day of April, 1891, and $12,500 every three months thereafter until the whole of the debt was paid, with a proviso that whenever the indebtedness to Mr. Gleason and the Third National Bank was reduced to $250,000 Mr. Gleason was to execute a deed to him, and take back a mortgage as security for the balance."
The report also contained statements of its own, as follows: “Of course, in the event of Mr. Gleason's debt being finally and fully paid, the property now owned by him becomes the property of Mr. Greenway, and would leave the company in very good condition, and its consummation would liquidate practically all the company's liabilities. Such an arrangement (raisiug of money on the real property to pay Gleason's debt) would place the company in a very good condition, as their assets would not be reduced by it, and be the means of funding substantially all their indebtedness, presumably at a moderate rate of interest, and on long time. They ask very little, if any, credit, except what they borrow, and there is apparently no doubt as to the company's property being sufficient to pay Mr. Gleason's claim without reference to the arrangement regarding the real estate. The plant is certainly valuable, and the business, with good management, should be successful.”
The plaintiff received this report from the agency, relied upon it believed it to be true, and was induced thereby to sell and deliver the hops on credit, and without receiving cash down therefor. The statements made by Greenway and embodied in the report were made for the purpose of being disclosed to the subscribers of the agency and of being relied upon in dealing with the brewing company. The statements were grossly false and untrue, and were known to be so by