2. CONSTITUTIONAL LAW (§ 48*)-CONSTRUCTION OF STATUTE-UNCONSTITUTIONAL CONSTRUCTION.

Courts should avoid giving a statute an unconstitutional construction if it is possible to effectuate the legislative intention by giving it a constitutional construction.

[Ed. Note.-For other cases, see Constitutional Law, Cent. Dig. § 46; Dec. Dig. § 48;* Statutes, Cent. Dig. § 56.]

Appeal from Special Term, Nassau County.

Mandamus proceedings by the People, on the relation of Theodore Douglas Robinson and others, against Thomas O'Connell, as clerk of the town of North Hempstead, impleaded with others. From an order directing the writ to issue, defendant named appeals. Affirmed. Argued before JENKS, P. J., and HIRSCHBERG, THOMAS, CARR, and RICH, JJ.

George B. Stoddart, of Mineola, for appellant.

William M. Chadbourne, of New York City (Francis E. Norris, of New York City, on the brief), for respondents.

RICH, J. This appeal is from an order of the Special Term, directing that a writ of mandamus issue to the appellant O'Connell as the clerk of the town of North Hempstead, requiring him to receive and file the certificate of nomination of the candidates of the National Progressive party for town offices and the office of school director in said town, to be voted for at an election to be held on the first Tuesday after the first Monday in April next. The certificate of nomination was prepared in conformity to the rules of the Nassau county committee of said National Progressive party. The question presented upon this appeal relates to the method and procedure the members of that party shall adopt in nominating their candidates for town offices.

The party was organized in June, 1912, and participated in the November election of that year; its candidates for state offices receiving more than 350,000 votes. It is a party, and not an independent organization (subd. 8, § 3, Election Law [Laws 1911, c. 891]), and the provisions of the Election Law applicable to the nomination of candidates by an independent organization do not apply to the procedure for the nomination for town offices. The party has no enrolled members, and because of that fact no primaries have been held since its birth. It has no committees elected under the provisions of the Election Law. It has a state committee, however, and an organization in the various counties of the state, with committees duly constituted in its various branches, which are recognized by the state committee, and it has a town committee in the town of North Hempstead. The relators are the chairman of the state committee, the chairman of the county committee in the county of Nassau, and the chairman of the town committee in the town of North Hempstead.

[1] But two methods of nomination are provided by the Election Law, one is by independent bodies, the other by parties. The latter

"For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

nominate under the provisions of section 45 of the Election Law; and subdivision 4 of that section is as follows:

"All other nominations and elections by a political party, both for party nominations and party positions, shall be made at the primary election herein provided for except that party nominations for town, ward and village offices and for the office of school director shall be made in the manner prescribed by rules to be adopted by the party committee of the county wherein such town, village or school district is located, and of the city committee wherein such ward is located."

The Nassau county committee have adopted rules providing the procedure for selecting its candidates for town offices and the office of school director, which provides in substance for unofficial primaries at which delegates are elected to conventions which nominate party candidates in the towns. These rules furnish authority for making the nominations, unless it is to be held that the word "committee," as used in said subdivision 4, must be a committee elected at a primary election. Such a construction would make it impossible for the National Progressive party to nominate candidates for town, ward, and village offices, a construction which the Legislature never intended.

[2] It would render the statute unconstitutional (Matter of Hopper v. Britt, 203 N. Y. 144, 96 N. E. 371, 37 L. R. A. [N. S.] 825), a construction which it is the duty of the court to avoid, if it is possible to so construe its provisions as to carry out the general purpose of the act and the intention of the Legislature. 36 Cyc. 1110; People v. Long Island R. R. Co., 194 N. Y. 130, 87 N. E. 79; Knights Templars' Ind. Co. v. Jarman, 187 U. S. 197, 23 Sup. Ct. 108, 47 L. Ed. 139; Harriman v. Interstate Commerce Com., 211 U. S. 407, 29 Sup. Ct. 115, 53 L. Ed. 253; United States v. Jackson, 143 Fed. 783, 75 C. C. A. 41; U. S. v. Delaware & Hudson Co., 213 U. S. 366, 29 Sup. Ct. 527, 53 L. Ed. 836.

I believe that subdivision 14 of section 3 of the Election Law applies only to parties which have participated in the party primaries, or have had an opportunity to do so, that it has no application to the facts presented by the record before us, and that the National Progressive party may lawfully nominate and choose its candidates for town offices and school director in the town of North Hempstead in the manner prescribed by its rules for Nassau county, and that it is the duty of the town clerk to receive and file the certificate of such nomination. It is likewise his duty to print an official ballot and in the party ticket of the National Progressive party the names of the candidates so nominated.

The order must be affirmed, with $10 costs and disbursements. All

concur.

(79 Misc. Rep. 425.)

BINSWANGER v. HEWITT et al.

(Supreme Court, Appellate Term, First Department. February 18, 1913.) 1. JUDGMENT (§ 849*)—ASSIGNMENTS-BREACH OF WARRANTY-EVIDENCE. In an action for breach of warranty that the judgment assigned to plaintiff was unpaid, an order entered in the debtor's bankruptcy proceedings disallowing plaintiff's claim on the judgment on the ground that it had been paid before adjudication was admissible, not as an adjudication binding on the parties to the litigation that the judgment had in fact been paid, but to show that it had been disallowed in the bankruptcy proceedings as a claim against the estate.

[Ed. Note.-For other cases, see Judgment, Cent. Dig. §§ 1559-1561, 1563; Dec. Dig. § 849.*]

2. ASSIGNMENTS (§ 72*)—“WITHOUT RECOURSE”-EFFECT.

The words "without recourse," accompanying the indorsement of a negotiable instrument, mean that the indorser will not be liable for payment in case of dishonor; he being still liable only on an implied warranty that the instrument is genuine, and in all respects what it purports to be, that he had good title, that all prior parties had capacity to contract, and that he had no knowledge of any fact which would impair the validity of the instrument or render it valueless, but such words attached to an assignment of a chose in action have no such effect, nor have they any defined legal meaning, but must be given such meaning as the parties intended, which must be determined as a question of fact from all the surrounding circumstances to be proved by parol.

[Ed. Note. For other cases, see Assignments, Cent. Dig. §§ 131, 132; Dec. Dig. § 72.*

For other definitions, see Words and Phrases, vol. 8, pp. 7509-7511.] 3. JUDGMENT (§ 849*)—ASSIGNMENTS-IMPLIED WARRANTY.

On the assignment of a judgment, there is an implied warranty that the obligation or claim is an existing valid one, that the assignor has title thereto which he may transfer, and that the amount of money it calls for is owing and unpaid, or at least that it has never been paid or satisfied by the acts of the assignor.

[Ed. Note.-For other cases, see Judgment, Cent. Dig. §§ 1559-1561, 1563; Dec. Dig. § 849.*]

4. JUDGMENT (§ 875*)-PAYMENT TO RECEIVER-APPLICATION.

Where a receiver was appointed in proceedings to collect a judgment and received $500, only the remainder, after paying the receiver's exrenses, was applicable as payment on the judgment.

[Ed. Note. For other cases, see Judgment, Cent. Dig. § 1645; Dec. Dig. § 875.*]

5. JUDGMENT (§ 849*)-ASSIGNMENT-PAYMENTS.

In an action for breach of warranty that a judgment assigned to plaintiff "without recourse" had not been paid, it appearing that $300 had been agreed on as the price of the assignment which had been received, not from plaintiff, but from H., who was the mother-in-law of the judgment debtor, a question asked of a witness who obtained the money "from whom he obtained the same," was admissible to show that H. was the real party who was buying the judgment, which would have a direct bearing on the intention of the parties in the use of the word "without recourse."

[Ed. Note.-For other cases, see Judgment, Cent. Dig. §§ 1559-1561, 1563; Dec. Dig. § 849.*]

For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

6. JUDGMENT (§ 877*)—ASSIGNMENT-BREACH OF WARRANTY.

In an action for breach of warranty that an assigned judgment was unpaid, the burden was on plaintiff to show that a particular payment alleged was properly applicable in reduction of the judgment.

[Ed. Note. For other cases, see Judgment, Cent. Dig. §§ 1646, 1647; Dec. Dig. § 877.*]

Appeal from Municipal Court, Borough of the Bronx, Second Dis

trict.

Action by Henry Binswanger against Edward G. Hewitt and another. From a judgment for plaintiff, defendants appeal. Reversed, and new trial ordered.

Argued January term, 1913, before SEABURY, LEHMAN, and PAGE, JJ.

Parsons, Closson & McIlvaine, of New York City (Albert S. Wright, of New York City, of counsel), for appellants.

Abraham M. Pariser, of New York City, for respondent.

PAGE, J. This action was brought to recover the sum of $300 paid by the respondent to the appellants on or about February 15, 1907, as consideration for the assignment of a judgment upon the ground that the appellants warranted at the time of the assignment that the judgment was still wholly unpaid and still wholly unsatisfied, and that the full amount was still due and owing upon the same, and that the same was a good and valid judgment; but that, in fact, the judgment had been prior to that time paid. The judgment, which was for $619.73, was recovered by the appellants against Herman W. Hoefer in the City Court of the city of New York on November 9, 1903, upon a charge of fraud.

The judgment roll in that action was not offered in evidence upon this trial, but it appears from the testimony that the appellants sold certain goods, wares, and merchandise to Hoefer, Menkin & Boeck Company, a corporation, relying upon statements and representations made to them by the said Hoefer as to its solvency and responsibility. Within a few days after the goods were delivered, the corporation made a voluntary assignment. The action was then brought which resulted in the judgment. Subsequently the receiver appointed in supplementary proceedings upon said judgment brought an action against Hoefer, his wife, Elizabeth Hoefer, and his mother-in-law, Maria Hackman, to set aside certain conveyances of real estate which it was alleged Hoefer had made to Maria Hackman to defraud his creditors. Mrs. Hackman paid to the receiver $500, and the action. was discontinued as to her. Hoefer was adjudged a bankrupt, whether in voluntary or involuntary proceedings does not appear, nor does it appear whether the proceedings were instituted prior or subsequent to the assignment of the judgment. On February 26, 1907, within 11 days after the assignment of the judgment, the respondent filed his I claim with the referee.

[1] Thereafter proceedings were instituted by the trustee in bankruptcy before the referee and an order resulted dated May 11, 1908,

For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

disallowing the respondent's claim for the sum of $619.73, and expunging it from the trustee's and receiver's records upon the ground that it had been paid and satisfied before the adjudication in bankruptcy. The appellants urge that the receipt in evidence of this order over the objection and exception was error. It was not offered or received as evidence of an adjudication that would be binding upon the parties to this litigation that the judgment had in fact been paid, but solely as evidence of the fact that the claim had been rejected and disallowed in the bankruptcy proceedings. Upon this theory it was properly received in evidence. The respondent claims that the judgment had been paid by the payment of the $500 by Mrs. Hackman herein before stated, and by the payment of two dividends from the insolvent corporation of Hoefer, Menkin & Boeck Company, one on June 24, 1903, of $118.42, and another on March 27, 1905, of $42.63, all of which were thus received prior to the assignment of the judgment.

[2] The assignment contained these words, "the said assignment being without recourse." While these words accompanying the indorsement upon a negotiable instrument have a fixed and well defined meaning; i. e., that the indorser of the instrument will not be liable for the payment of the negotiable instrument in case of its dishonor at maturity as he would be on an unqualified indorsement. It has no further effect. He is still liable upon the implied warranty that the instrument is genuine and in all respects what it purports to be; that he has good title to it; that all prior parties had capacity to contract; and that he has no knowledge of any fact which would impair the validity of the instrument or render it valueless. Negotiable Instruments Law (Consol. Laws 1909, c. 38) §§ 115, 116. Where, however, these words are used in the assignment of a chose in action, they cannot have a like effect, for there is no implied engagement on the part of the assignor to pay the obligation or claim if the person primarily liable does not do so.

[3] There is an implied warranty that the obligation or claim assigned was an existing and valid one to which the assignor had title which he might transfer, and that the amount of money it calls for was owing and unpaid, or at least that it had never been paid or satisfied by the acts of the assignor. Sanders v. Aldrich, 25 Barb. 63; Corwin v. Wesley, 34 N. Y. Super. Ct. 109; Furniss v. Ferguson, 15 N. Y. 437. The counsel for appellants argues that, as these words could not have the force and effect that they would have had upon the liability upon an indorser of a negotiable instrument, they must have the effect to nullify the remaining implied warranty arising upon the assignment of a chose in action, and therefore, if the judgment had in fact been paid prior to the assignment, the assignee could have no right of action against the assignor. On the other hand, the respondent's counsel claims that, as there was nothing upon which these words in their usual legal significance could apply, they were mere nullities, and had no effect upon the rights and liabilities of the parties. We cannot adopt either view. It is a fundamental rule of construction of written instruments that force and effect must be given to every word used by the parties, if possible. If words are used, the intent and meaning of which, in

140 N.Y.S.-10