Opinion by Finch, J. All con

cur.

CONTRACTS. PUBLIC POLICY.

Louis Marshall, for applt.
M. A. Knapp, for respt.

Held, No error; that, under the circumstances, while an omission by the common council to act may indicate an error of judgment it did not show a negligent omission. The adjoining owner had no absolute right to a contrary judgment. The general public were not interested, and whether a resolution should be passed and enforced by subsequent penalties rested in the discretion of the council and for an error of judgment the corporation is not liable.

The failure to act does not prove negligence in a case where not acting is consistent both with knowledge and ordinary prudence.

The adjoining owner could have pulled down the wall if he could have shown it to have been a nuisance. He had and still has his action for the resultant injury if it flowed from a culpable negligence. Neither he nor plaintiff had an absolute right to the interference of the common council.

Judgment of General Term,

N. Y. SUPERIOR COURT. GENERAL TERM.

Edward Materne et al., applts. v. Benno Horwitz et al., respts.

Decided Feb. 4, 1884.

Plaintiff and defendant entered into an agreement for the sale and purchase or a quantity of domestic sardines with labels on the boxes in a French style to contain a statement that the contents had been packed in France in olive oil by persons named thereon. It appeared that French sardines are worth about 50 per cent. more than domestic sardines, on account of quality, etc., and that domestic sardines are taken and packed in Maine. Held, in an action brought after tender of said goods and a refusal to receive them, that the contract was against public policy and could not be enforced, although there be no direct evidence to show that defendants, the wholesalers, intended to sell to consumers.

Appeal from judgment dismissing complaint entered on direction of a judge before a jury.

Action for the price of goods tendered to defendants under a contract of sale. The plaintiffs and defendants being wholesale dealers in sardines in 1881, entered into a written agreement by which the former were to sell and the latter to buy four hundred cases of "domestic sardines," the boxes to have "fancy labels" upon them. Domestic sardines were fish taken and packed in Maine, and "fancy labels" were decorated labels in a French style. Plaintiffs knew

that these labels would contain a statement that the contents of the box had been packed in France "in olive oil by persons named on the label." Plaintiffs testified that imported sardines came mostly from France, and are worth in the market about fifty per cent. more than domestic sardines on account of the quality and the duty. The goods tendered by plaintiffs had upon them labels like those that have been described and names that were apparently names of French packers, doing business in France. It did not appear that there were any persons of such names, and the contract could not have been carried out with domestic sardines that had upon the boxes labels different from those upon the boxes tendered.

From the facts, it was to be inferred that defendants entered into the agreement, to the knowledge of plaintiffs, with the purpose of selling the goods to others in the condition provided by the agreement.

Plaintiffs did not make the deceptive labels, but they knowingly procured and furnished them,

The defendants claimed that the agreement was illegal because its object was that goods should be delivered in a condition which in the usual course of trade would be used as a means of dishonest practice upon consumers.

C. D. Adams, for applts.

Otto Horwitz, for respts.

The illegality which invalidates a contract is not necessarily such as tends to a violation of law which inflicts a penalty. For instance, contracts which tend directly to immorality, like sales of goods to a prostitute for the purpose of enabling her to carry on her business of prostitution; contracts in restraint of trade or marriage; marriage brokerage contracts; a contract of two persons not to bid against each other at auction, under certain circumstantes, are void. A pertinent case, is, that an agreement made to defraud a creditor of one party to it cannot be enforced. Possibly the statute against obtaining goods by false pretences would embrace a case of knowingly selling goods under a fictitious label that contained statements as to the goods.

The bare knowledge by a vendor that the purchaser intends to make an unlawful use of the article sold will not prevent a recovery for the purchase money, but this is only so when the vendor has done nothing in aid or furtherance of the unlawful design, and when it is not made a part of the contract that the goods shall be used for an unlawful purpose. The contract is invalid if made with the intent that it shall be used in or for some unlawful object. 14 N. Y. 169.

Here part of the contract, when the symbols expressed in it are turned into language, was that the goods should be furnished to defendants ready for market, with

kind that would be likely to

deceive. For this reason it was part of the contract that an unlawful object was intended.

Though there was no evidence to show that it was the understanding that defendants were to sell to consumers, the usual result would be that the goods would be presented to consumers by means of such sales as they should make. Rudderow v. Huntington, 3 Sandf., 256, distinguished.

Judgment affirmed, with costs. Opinion by Sedgwick, Ch. J.; O'Gorman, J., concurs.

CORPORATIONS. TAXATION. N. Y. SUPREME COURT. GENERAL TERM. FIRST DEPT.

The People ex rel. The Mutual Union Tel. Co., applt., v. The Commissioners of Taxes, &c., in the City of New York, respts.

Decided Jan. 25, 1884.

A telegraph company owning a line partly within and partly beyond the limits of this State, and partly in the City of New York, is subject to taxation in that city on its capital stock to the amount of the actual cost of its works within that city, and for such personal property or real estate as it may own therein; but if its officers fail to furnish to the tax commissioners a statement of the cost of its works, etc., as required by statute, the commissioners have the right to assess the property of the company according to the best information they can procure and if the corporation has failed to apply for the correction of such assessment within the time provided by law for that purpose, the Court will not thereafter correct such assessment on certiorari.

Appeal from order of Special Term, confirming the assessment on the capital stock of relator made by the tax commissioners.

Relator was a telegraph company incorporated under Chap. 471, Laws of 1853, owning a line partly within and partly without the State of New York. In the year 1881 its capital stock was assessed for taxation by the Commissioners of Taxes, etc.. of New York City, on the second Monday of January of that year, at $600,000, which was the amount of its paid up capital at that time. Relator claimed that it should be taxed under Chap. 471, Laws of 1853, § 3, only upon the cost of its works within the State and upon the personal property owned by it, which amounted to about $17,000, and brought these proceedings to procure the reduction of its assessment to that sum. It appeared that the relator had failed to furnish to the tax commissioners during the period within which they had power to correct assessments, (Ch. 302, Laws 1859) the statement required by statute (Ch. 471, Laws 1853, 83, and 2 R. S., 7th Ed., 1036) to be furnished to them showing the actual cost of the works etc., of the relator, and had made no application for the correction of the assessment until after that period had expired.

Fisher A. Baker, for applt.

George P. Andrews, for respts.

Held, That while, under $3, of Chap. 471, Laws of 1853, the relator would be subject to taxation in the City of New York only for the actual cost of its lines within that city and for such personal property or real estate as it might own therein, still it was its duty, under

the statutes, Ch. 471, Laws 1853,

$3, and 2 R. S., 7th Ed., 1036, to

MARRIAGE.

sioners of New York City a statement of the actual cost of its works, etc., within that city, and on its failure to do so the commissioners had the right to assess its capital stock according to the best information they could procure, 6 Hun, 566; and that, since the relator had also failed to make any application to the tax commissioners to reduce its assessment between the second Monday of January and the 30th day of April, 1881, which was the period provided by law during which they had power to make such correction, Laws 1859, Ch. 302, if it was assessed beyond the sum which should be imposed, it resulted from its negligence and it must bear the burden.

That in view of the failure of relator to make the above statement and application, and of the facts

TERM. FIRST DEPT. Caroline Harbeck, applt., v. John H. Harbeck, respt.

Decided Feb. 1, 1884.

In a case where cohabitation was illicitly commenced, and has been meretriciously continued for a long time, but is alleged by one of the parties to have been subsequently changed into a lawful marriage, and an action for divorce is brought by such party on the ground of the adultery of the other party in marrying a third person, while evidence tending to show by presumption or inference that a contract of marriage has in fact been made will not be excluded, the court will be very cautious in making such deductions or inferences where the party alleging the making of the contract fails to establish it by his or her direct testimony; and in such a case the court may refuse to find that such contract has been made, although if the rights of third parties or the legitimacy of children born to plaintiff and defendant during their cohabitation had been involved a marriage would have been found from the evidence of an inferential nature produced.

the court ought not to require some positive and direct proof from the party alleging the contract of marriage that it was in fact made.

That there was nothing in said last mentioned act exempting the property of corporations affected thereby from local taxation. 91 N. Y., 574.

ed.

Appeal from judgment of Special Term dismissing complaint.

This action was brought by plaintiff for divorce on the ground. of adultery.

The defence set up was that plaintiff and defendant were never married, and the only proof of

Opinion by Brady, J.; Davis, P. J., and Daniels, J., concur.

answer that defendant had duly married a third person with whom he was lawfully living as husband. Plaintiff was the chief witness on

timony it appeared that she had commenced cohabiting with defendant during the lifetime of her husband, but that such cohabitation continued after his death, and she claimed that she had subsequently become married to defend

ant.

She did not testify to any formal ceremony or contract of marriage as having taken place between them, but the only proof of such marriage was a variety of circumstances and admissions from which a marriage might well be inferred, such as that she had travelled in Europe with defendant and was described in her passport as his wife; that he had registered her as his wife at hotels, had so spoken of her in letters, had introduced her as such to third persons, and on one occasion, on her upbraiding him with his attentions to another woman, had said to her, "What have you to fear, you are my wife in the eyes of the world." On the other hand, evidence was given on the part of defendant to show that plaintiff had admitted that she was not his wife, and had agreed to give up all pretensions to that relation and give him no trouble on the payment of a stipulated sum per annum.

Howe & Hummel, for applt. Silas M. Stillwell, for respt. Held, That if the question of the case had arisen between defendant and third parties who had dealt with plaintiff in reliance upon her supposed relation of wife of defendant, or if it involved the question of the legitimacy of children born to plaintiff and defend

evidence would have justified a finding of the alleged marriage; but that parties who have entered upon relations of illicit cohabitation are not, when either of them seeks to repudiate and abandon such relations, affected by the rules of estoppel in part by which courts seek to protect the rights of third parties or to uphold the legitimacy of children, and, as between them, courts will not so easily infer marriage in fact from the artifices and devices or representations by which they seek to conceal the true character of such cohabitation from their friends or the public.

That, in the present state of the law, the parties to an action of divorce are both competent witnesses on the question of marriage; and if a marriage has been solemnized between them, either publicly or privately, or a contract of marriage been entered into between them by private agreement, the fact can be proved by the direct testimony of the parties to it and to the action; and, while the law will not exclude evidence tending to show by presumption or inference that such a contract has in fact been made, it will, and ought to be, very cautious in making such deductions and inferences where the party alleging the mak ing of the contract fails to establish it by his or her direct testimony.

It is very doubtful whether the court ought not to require some positive and direct proof of the marriage from the party alleging it.