Lake and others v. The Trustees of the Village of Williamsburgh

Debt, tried before Kent, Cir. J., at the New-York circuit, in September, 1844. Declaration—first count, for that whereas the defendants, on the 2d of December, 1840, at, &c. being indebted to the plaintiffs in the sum of six hundred dollars, made a certain instrument in writing, sealed with their corporate seal, .and signed by the president and countersigned by the clerk of the said corporation, commonly called a warrant, and now shown to the court here, and then and there directed the said warrant to one W. C. by the name and addition of W. C., treasurer of the village of Williamsburgh, by which said warrant the defendants then and there required and directed the said W. C., treasurer, as aforesaid, to pay to the order of the plaintiffs the sum of six hundred dollars. A presentment of the warrant to the treasurer for payment on the 4th of December, 1840, was then alleged; that the treasurer did not pay, and the defendants had notice. By means, &c. the defendants became liable, and being liable agreed to pay the plaintiffs the said sum of six hundred dollars; whereby an.action hath accrued to the plaintiffs to demand and have the said sum of six hundred dollars, parcel of the sum above demanded. Second count, in debt m the same general form on a warrant for $699,98, dated December 2, 1841.

On the trial, the plaintiffs gave in evidence, under the first count, a warrant as follows:

$600. Williamsburgh, Dec. 2, 1840. William Conselyea, 2d. Esq., treasurer of the village of Williamsburgh. Sir: You are hereby required to pay to the order of William Lake & Brothers, the sum of six hundred dollars, out of the funds Union Avenue, for opening and regulating, [when the same is collected and paid into the treasury,] for account of balance due them on settlement made this day. [l. s.] William Lake, President. Attest, Henry Payson, Clerk.

The warrant was presented on the 4th of December, 1840, and payment was refused by Conselyea, the treasurer of the corporation, because there were no funds belonging to Union Avenue.

In November, 1835, the corporation resolved to grant the prayer of a petition for opening and regulating Union Avenue; and the plaintiffs afterwards performed work and labor in regulating the avenue, at the request of the corporation. On the. 2d of December, 1840, the board of trustees accepted a report of the law committee in favor of granting a warrant to the plaintiffs for $1854,19, “ being the balance of their claim, including interest, against Union Avenue for opening and regulating the same.” Three warrants were issued on that day, amounting, in the aggregate, to the above mentioned sum. The foregoing warrant is one of the three; the other two were in the same form, but for different sums. On the 9th of April, 1841, the trustees, on the petition of the holders of warrants, passed a resolution directing the clerk, on request of the holder of any warrant, to strike out of it the words included above in brackets—“ when the same is collected and paid into the treasury and in pursuance of that resolution the clerk drew a red line through those words in the warrant in question, and also in the other warrants of the plaintiffs.

On the 16th of January, 1842, the trustees ordered new war rants to be issued to the plaintiffs in exchange for two of the three warrants which had been previously issued to them—the new warrants to be dated December 2, 1841, and one year’s interest to be added to the amount. No direction was given as to the form of the new warrants. Under this order a new warrant was issued in exchange, as follows :

$699,98. Williamsburgh, Dec. 2, 1841. To the treasurer of the village of Williamsburgh : Pay to the order of William Lake & Brothers the sum of six hundred and ninety-nine dollars and ninety-eight cents, and charge the same to the account of Union Avenue. [l. s.] John 0. Minturn, President. Attest, Henry Pay son, Clerk.

On this warrant the second count in the declaration was framed. It was presented to the treasurer on the 24th of January, 1842, when payment was refused for the want of funds. There never were any funds in the treasury belonging to Union Avenue.

The defendants offered to prove that no valid petition or request in writing by the owners of the property was presented to the board of trustees for opening and regulating Union Avenue. The judge rejected the evidence. Many other questions were made on the trial. The judge decided that the plaintiffs were entitled to recover the amount of the two warrants given in evidence, if the jury should determine that the erasure in the first mentioned warrant was made by authority of the defendants, and in good faith. Verdict for the plaintiffs. The defendants move for a new trial on a bill of exceptions.