3. DIVORCE (§ 303*)—Decree-Custody of Children-MODIFICATION. Where a divorced wife, who had been remarried, sought to be relieved of the obligation to maintain an infant child, awarded to her by the divorce decree confirming her voluntary agreement to maintain the child, on the ground of her inability to maintain the child, a full inquiry into the financial ability of the second husband to support the wife must be allowed, because germane to the question of her ability to apply her separate income to the maintenance of the child. [Ed. Note. For other cases, see Divorce, Cent. Dig. §§ 793-795; Dec. Dig. § 303.*] Appeal from Special Term, Kings County. Action by Helen Hicks Earle (now Bertie) against Charles Earle. From a judgment, as amended by an order, for plaintiff, defendant appeals. Conditionally affirmed. Argued before JENKS, P. J., and THOMAS, CARR, STAPLETON, and PUTNAM, JJ. Carlisle Norwood, of New York City, for appellant. JENKS, P. J. [1] In view of our former judgment (158 App. Div. 552, 143 N. Y. Supp. 841), the plaintiff should not be relieved of her obligation, voluntarily assumed and confirmed by the decree of the court, unless she presented evidence of her present inability. The testimony taken before the referee does not establish to our satisfaction that the financial circumstances of the plaintiff have changed so materially since the decree as to justify the relief afforded to her. It is but natural, in a desire to prevail and to cast a burden upon the defendant, that the plaintiff would make the worst of every circum stance.. [2] The question of her ability is not to be determined by comparison of her income with her expenditures, or the present state of her finances due to such expenditures, but by comparison of her income with what expenditures are necessary and proper under her circumstances. Her income is practically assured, and upon the death of her aged mother she is certain to receive a material increase thereof. It is quite true that her income has been increased by a regular allowance from her mother, which is a bounty; but it is hardly credible that such allowance would be withdrawn arbitrarily, and there is no suggestion why it need be. I can credit that plaintiff's mother would prefer to have the defendant support the child; but that is no reason why a woman 82 years old, in receipt of a stated income, should arbitrarily henceforth withhold an allowance heretofore regularly made to her own daughter. When the plaintiff assumed this maintenance of her child, she was unmarried and dependent upon her income. Since that time she has remarried. As the husband is obligated to support the wife, and as in this case no reason appears why this husband cannot, naturally this plaintiff, in so far as she is relieved from resort to her own income for her own support, would have more of that income to maintain this child. If, contrary to the normal, this wife supports the husband, and thus has an additional burden, then certain For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes ly, in the absence of all proof of his inability to support his wife, there is no reason why the wife should be relieved from such maintenance of her child even to a degree. [3] The second husband was called as a witness, and although he did testify to his contribution to the household expenses, the learned referee did not permit full inquiry into his financial ability to support his wife. It seems to us that such inquiry was germane to the question of the ability of the plaintiff to apply her separate income to the maintenance of the child. It is a pity that the keep of this young girl should be the subject of such bitter and protracted litigation. Her welfare is the paramount consideration of the courts, and should be that of both of her parents, even though no longer man and wife. If the needs of this young girl, fast growing into womanhood, were no greater than those of the young child at the time of the decree, then I should hesitate to give the advice that follows. But in consideration of the natural increase of her expenses and the undoubted financial ability of the defendant, I advise that the judgment be modified, so as to require the defendant to pay $325 a year, instead of $750, for maintenance, provided the child remain in the household of her mother; but, provided the child consent to be placed in a proper boarding school, I think that the decree should be affirmed, so that the defendant should pay $750 per annum towards her maintenance therein. If the plaintiff does not consent to this modification, then I advise that the order be reversed, without costs, and a new hearing be granted. If the parties cannot agree upon the boarding school, the Special Term is empowered to designate one. Settle the order before the Presiding Justice. All concur. (164 App. Div. 791) CITY OF NEWBURGH v. DICKEY, City Treasurer. (Supreme Court, Appellate Division, Second Department. November 13, 1914.) 1. DEPOSITARIES (§ 6*)-DEPOSITS OF PUBLIC MONEYS-DESIGNATION OF DEPOSITARIES-STATUTORY PROVISIONS. The power of the council of a city to select a depositary of the funds of a city need not be expressly conferred, but it is sufficient if it can necessarily or fairly be implied from powers expressly granted. [Ed. Note.-For other cases, see Depositaries, Cent. Dig. § 20; Dec. Dig. § 6.*] 2. DEPOSITARIES (§ 6*) -DEPOSITS OF PUBLIC MONEYS - DESIGNATION OF DEPOSITARIES STATUTORY PROVISIONS "MANAGE" "FINANCES" "CONTROL." The Newburgh city charter vests in the council the legislative power of the city, and declares that the council shall have the management and control of the finances of the city, and shall have the power to do all acts necessary to carry into effect any general power and necessary for the good government, order, and protection of persons and property. Held, that it impliedly confers on the council the power to designate a depositary of public funds, for the word "finances" means monetary affairs, pecuniary resources, funds on hand or coming in, revenue, income, funds in a treasury or accruing to it, and the word "manage," being somewhat synonymous to the word "control," means to direct, control, govern, For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes administer, or oversee (citing Words and Phrases, Manage; see, also, Control). [Ed. Note. For other cases, see Depositaries, Cent. Dig. § 20; Dec. Dig. § 6.*] 3. DEPOSITARIES (§ 6*)-DEPOSITS OF PUBLIC MONEYS-DESIGNATION OF DEPOSITARIES-STATUTORY PROVISIONS. The Newburgh city charter, requiring the city treasurer to receive all money of the city, and all money raised by authority of the board of supervisors of the county, and to keep an account of receipts and expenditures as the city council shall direct, does not confer on the city treasurer the power to select a depositary of public funds, though the charter also provides that all money shall be drawn from the treasury in pursuance of the order of the council by warrants signed by the mayor and clerk. [Ed. Note.-For other cases, see Depositaries, Cent. Dig. § 20; Dec. Dig. § 6.*] 4. DEPOSITARIES (§ 6*)-DEPOSITS OF PUBLIC MONEYS-DESIGNATION OF DEPOSITARIES-STATUTORY PROVISIONS. A city treasurer, though required to give a bond conditioned on his faithfully discharging the duties of his office and paying over all money received by him, has no authority to select a depositary of public funds, and neither the bond nor the general rule of law extends his liability to money held by a depositary designated by the council of the city in accordance with the charter. [Ed. Note. For other cases, see Depositaries, Cent. Dig. § 20; Dec. Dig. § 6.*] Submission of controversy on agreed statement of facts, pursuant to Code Civ. Proc. §§ 1279-1281, between the City of Newburgh and James N. Dickey, as Treasurer of that city. Judgment for plaintiff. Argued before JENKS, P. J., and BURR, THOMAS, RICH, and STAPLETON, JJ. Graham Witschief, Corp. Counsel, of Newburgh, for plaintiff. JENKS, P. J. This is a controversy between the city of Newburgh and its city treasurer, submitted. The city council passed a resolution. whereby a certain bank in the city was designated as the depositary of the funds of the city and of the several departments thereof until the further order of the city council, and the city treasurer was directed to deposit the funds of the city received by him in said bank. The city treasurer took the position that he was the legal custodian of the funds of the city by virtue of his office, and had the right to select the depositary. [1] The question is whether the plaintiff should have a peremptory writ of mandamus to the defendant to deposit forthwith in the depositary designated by the city council all funds of the city of Newburgh received by defendant from time to time. I neither find nor am cited to any specific provision in the city charter, or in any statute, which empowers the city council, or the city treasurer, or any other board or official, to select a depositary. It is, however, sufficient if such power can necessarily or fairly be implied in or incident to powers expressly granted. Village of Carthage v. Frederick, 122 N. *For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes Y. 271, 25 N. E. 480, 10 L. R. A. 178, 19 Am. St. Rep. 490; City of Rochester v. Simpson, 134 N. Y. 417, 31 N. E. 871. [2] I think that the charter by plain implication confers such power upon the city council. Section 1 of title 3 of the charter provides that the legislative power of the corporation shall be vested in the city council. This is harmonious to the general principle. Moore v. Mayor, 73 N. Y. 247, 29 Am. Rep. 134. Section 9 thereof reads: "The city council shall have the management and control of the finances and all property, real and personal, belonging to said city." And section 37 provides: "The city council shall also have power to do all such acts and make such ordinances, rules, police regulations and by-laws, not inconsistent with the laws of the United States, as they may deem necessary to carry into effect any general power, the powers conferred upon it by this act or by any other laws of this state, and such also as they may deem necessary for the good government, order and protection of persons and property, and for the preservation of the public health, peace and prosperity of said city, and its inhabitants." Laws 1907, c. 203. "Man "Manage" and "control" are somewhat synonymous words. "Manage" means to direct, control, govern, administer, or oversee. age," in Words and Phrases Judicially Defined; Bouvier's Law Dict. -both citing Commonwealth v. Johnson, 144 Pa. 377, 22 Atl. 703. See, too, Anderson's Law Dict.; Commissioners of the Sinking Fund v. Walker, 6 How. (Miss.) 186, 38 Am. Dec. 433. "Finances" means monetary affairs, pecuniary resources, funds on hand or coming in; revenue; income (Standard Dict.); "revenue, funds in the treasury, or accruing to it" (Century Dict.). [3] The defendant contends that certain other provisions of the charter by fair implication vest this power upon him. He points out that section 8 provides that: "The treasurer of said city shall receive all moneys belonging thereto, as well as the moneys raised by authority of the board of supervisors of the county of Orange, as the moneys raised by authority of the city council; and he shall keep an accurate account of all the receipts and expenditures in such manner as the city council shall direct. All moneys shall be drawn from the treasury in pursuance of the order of the city council, by warrants signed by the mayor, or acting mayor and clerk." And he cites various other provisions which require the payment of public moneys collected by various city officials to the city treasurer. The receipt of moneys collected by any officer or board, or paid in as due the city, is a natural incident of the office of a city treasurer, as is the keeping of the accounts thereof and the subsequent disbursement thereof. But I find no provision for a city treasury as the depositary of moneys, and the mere powers to receive, to keep account of, and to pay out such moneys does not imply the right to select a depositary, in derogation of the powers heretofore considered as cast upon the city council. [4] The defendant lays stress upon the fact that he is required by the charter to give a bond. But such requirement is found in section 16 of title 2, which is general, in that it requires a bond, not only from the treasurer, but also from the recorder, the justices of the 150 N.Y.S.-12 peace, the superintendent of public works, and such other officers as may be required. And the bond prescribed is that such officers shall "faithfully discharge the duties of their respective offices, and pay over all moneys received by them, respectively." The bond of the defendant is expressed in the terms of this charter provision. The defendant's argument is that, as he is required to give a bond and is thus responsible, the fair intendment is that he should select the depositary. But the requirement of the bond is that he shall pay over all moneys received by him. It is the settled law of this state that a public official assumes all risk of loss and is charged with the duty to account as a debtor for the funds in his custody. Tillinghast v. Merrill, 151 N. Y. 142, 45 N. E. 375, 34 L. R. A. 678, 56 Am. St. Rep. 612. But in that case the court say that they do not wish to be understood as establishing a rule of absolute liability in any event. Neither the requirement of this bond nor the general rule would extend to moneys received by the official, while those moneys were held by a depositary designated by another body or officer of the city in accord with law and exclusive of any power cast upon him. Dillon on Municipal Corp. (5th Ed.) p. 764, citing Perley v. Muskegon County, 32 Mich. 132, 20 Am. Rep. 637. See, too, Mechem on Public Officers, p. 610; Hobbs v. United States, 17 Ct. Cl. 189. The condition of the bond would be met if he discharged his duty with respect to the moneys when not in the exclusive charge of the depositary named by the city council. Judgment for the plaintiff in accord with the terms of submission. All concur. (164 App. Div. 663) GILSEY et al. v. LANCASTER. (No. 6235.) (Supreme Court, Appellate Division, First Department. December 4, 1914.) 1. FRAUD (8 58*)-WEIGHT OF EVIDENCE. In an action on a guaranty of performance of the terms of a lease of a hotel, to recover unpaid installments of rent, defended on the ground of false representations by the lessors as to the former lessee's success in conducting such hotel, and as to the reasons for terminating the lease and the amount of rent which he was paying, evidence held to show by the preponderance thereof that no fraudulent representation of a material fact was made, and that defendant, in executing the guaranty, did not rely on any misrepresentation, if made, and hence a verdict for defendant was contrary to the weight of the evidence. [Ed. Note.--For other cases, see Fraud, Cent. Dig. §§ 55-59; Dec. Dig. § 58.*] 2. APPEAL AND ERROR (§ 1064*)-ACTIONS-INSTRUCTIONS-FRAUD. In an action on a guaranty of performance of the terms of a lease of a hotel, defendant pleaded a fraudulent representation that the rent demanded was the same rent then being paid by the former lessee. Plaintiffs admitted a representation that the lease to the former lessee called for the same rental, and did not claim that they informed defendant regarding a reduction in the rent, which they claimed was made as a concession to secure changes which they were desirous of having the lessee make, but no fraudulent suppression of a fact was pleaded or litigated. The jury, after its retirement, asked the court whether the withholding *For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes |