topped from his defense that his supposed undertaking was invalid and void.

Ward v. Syme, 8 N. Y. Legal Obs. 95; Mansfield etc. R. Co. v. Swan, 111 U. S. 379 (Bk. 28, L. ed. 462); Ayers v. Watson, 113 U. S. 594 (Bk. 28, L. ed. 1093). See also Post v. Doremus, 60 N. Y. 371.

Nor can any recital in the undertaking estop the defense that it was void for such want of jurisdiction.

Ward v. Syme, Post v. Doremus, Mansfield etc. R. Co. v. Swan, and Ayers v. Watson, supra; Cadwell v. Colgate, 7 Barb. 253; Germond v. People, 1 Hill, 343; Latham v. Edgerton, 9 Cow. 227.

Ruger, Ch. J., delivered the opinion of the court:

In December, 1876, one Jacob Mittnacht commenced an action of claim and delivery for the recovery of personal property in a District Court of the City of New York against John B. Gschwind. Issue was joined in the action, and immediately thereupon the defendant commenced proceedings to remove the case into the Court of Common Pleas of the City of New York. For that purpose he procured to be executed and filed in the said district court an undertaking, signed by himself as principal, and John Kellermann and Frederick Dieterle, as sureties, which undertaking, after reciting the commencement of the action under chapter 344, of the Laws of 1857, the joinder of issue therein, that a trial thereof had not been had, and the application of the defendant to remove the case into the court of common pleas under the provisions of said Act, continues: that now, therefore, we, John B. Gschwind, John Kellermann and Frederick Dieterle, "have and hereby do in consideration of the premises aforesaid, and of one dollar to us in hand paid, jointly and severally promise and agree that we will pay to the plaintiff the amount of any judgment that may be awarded against the defendants by the said court of common pleas in this action."

The district court thereupon assumed to make an order removing the case into the court of common pleas, upon the ex parte application of the defendant therein. Thereupon the plaintiff caused said action to be placed upon the calendar of the court of common pleas at a trial term thereof; and when the case was reached, in the regular course of proceedings, moved the same for trial, and, the defendant not appearing, took his default and entered judgment, upon an inquest, for the return of the property described, and, in case that could not be had, for the amount of $250, its assessed value.

No appearance in the action was in any way made in the court of common pleas by the defendant, after its attempted removal there; and it does not appear that he ever took any steps in the original action after obtaining the order of removal.

This action is brought to recover the damages arising out of an alleged breach of the undertaking given on the attempted removal. The grounds upon which liability is contested are that the undertaking was without consideration; that the district court had no authority to order a removal of an action for claim and delivery

from that court into the court of common pleas, and that the latter court acquired no jurisdiction of the case by reason of the proceedings to remove it, and has rendered no valid judgment in such action.

It seems to us quite clear that the district court had no authority to order an action for claim and delivery to be transferred from that court into the court of common pleas. By chapter 344 of the Laws of 1857, being an Act to consolidate the several Acts relating to district courts in the City of New York, it is provided by section 3, that such courts have jurisdiction in the following actions:

1. In actions similar to those provided by sections 53 and 54 of the Code of Procedure where the sum named shall not exceed $250.

2. In an action upon the charter, ordinances or by-laws of the Corporation of the City of New York, or a statute of this State where the penalty shall exceed $250.

It is then provided by subdivision 3 of that section that "In any action commenced in pursuance of this section where the claim or demand shall exceed the sum of $100 upon the applica tion of the defendant, the justice shall make an order removing the same, at any time after issue joined, and before the trial of the same, into the Court of Common Pleas, in and for the City and County of New York, upon the defendant executing to the plaintiff an undertaking with one or more sufficient sureties, to be approved of by the justice of the court in which such action is commenced, to pay to the plaintiff the amount of any judgment that may be awarded against the defendant by the said court of common pleas."

It will be observed that this Act conferred no jurisdiction upon the district courts to entertain any actions except those calling for the relief to be obtained by money judgments. It is not claimed that they thereby obtained any jurisdiction of an action for claim and delivery.

By section 17 of chapter 484 of the Laws of 1862, jurisdiction was conferred upon district courts to hear and determine actions for claim and delivery, where the value of the property claimed did not exceed $250. The question whether such an action was removable into the court of common pleas, under section 3 of the Act of 1857, arose in that court in 1876, in the case of Curtis v. Besson, 6 Daly, 432, where it was held that it was not, the court saying that the Act of 1862 made no provision for such removal, and that the terms of the provisions of section 3 of the Act of 1857, were inconsistent with the theory that such power of removal was intended to be conferred.

They say: "By that section conferring jurisdiction solely of actions for the recovery of money the power of removal is only in such actions (referred to in subdivisions 1 and 2) and the obligation of the undertaking required in such a proceeding is to pay the amount of any (money) judgment;' while in a proceeding for the removal of the action for the recovery of the possession of personal property, any such an obligation would be unadapted to the case and would not furnish the plaintiff with the security for the performance of such terms, as the judgment in such an action in favor of the plaintiff would award.”

Great weight must be given to the opinions of

that court, upon questions affecting its own practice and jurisdiction; and we should be reluctant to overrule its disposition of such cases, especially when they had been long acquiesced in, even if we were not entirely satisfied with the reasons given therefor.

But we are also of the opinion that the decision of that case was a correct exposition of the meaning and intent of the statute referred to.

It follows from these views that the order of the district court removing the original case to the court of common pleas was without jurisdiction, and did not effect such removal; that the court of common pleas acquired no jurisdiction of that action by force of the order of removal, and that all subsequent proceedings in that court were void and of no effect. It also follows, from these views, that the execution of the undertaking in question was not made under any statutory authority; and it cannot be supported upon the theory that it was executed according to any requirement of law. Although it may be open to some question whether the security in question comes within the provisions of the statute against bonds taken colore officii (Decker v. Judson, 16 N. Y. 439), it yet derives no support from the statute, and must be sustained, if sustainable at all, upon some other theory. The general rule that bonds taken by public officers purporting to be taken under statutory authority, but which are not actually authorized by the statute, or do not conform in all material respect with its provisions, are void, is too well established by authority to be questioned or disputed. Post v. Doremus, 60 N. Y. 371; People v. Meighan, 1 Hill, 299; Homan v. Brinckerhoff, 1 Denio, 184.

Some claim has been made by the appellant that it may be upheld as a valid instrument at common law; but such an instrument, like other contracts made between parties, requires a consideration to support it. This contract has none. It was a unilateral undertaking, executed by defendant in an action, acting in hostility to the plaintiff, and by which he sought to obtain an advantageous position in the litigation against the will of his adversary. If it had force, it was not by any agreement or consent of the parties, but was the act of one party attempted to be imposed upon the other as a compliance with an assumed statutory authority. It was not claimed that it had any other efficacy than such as the statute gave it.

The admission of the receipt of one dollar does not state who received it or from whom it came. Ordinarily such an acknowledgment would import that it came from the obligee; but such an inference cannot legally be indulged when the situation of the parties forbids it. It cannot be presumed that a hostile party in a law suit has advanced money to his adversary to enable a proceeding to be taken which he did not know of and would naturally desire to defeat. This bond was not given as the condition of any favor extended by the court or as the price of any consideration to be granted by the plaintiff, but was an ex parte proceeding to compel a removal of the case under the claim of a legal right. The defendant did not ask any favor of the plaintiff, and proceeded regardless of his assent or dissent to the proceeding.

We, therefore, think the bond was invalid, as being wholly without consideration.

Assuming, however, that the bond was given upon a sufficient consideration, we are of the opinion that no breach of its conditions has been shown, and that the court of common pleas has never rendered judgment in the action against the defendant.

Admitting that the court of common pleas had jurisdiction of actions for claim and delivery, it does not appear that they ever acquired jurisdiction of the person of the defendant. No process of that court was ever served upon him, and he never, in any manner, appeared in the action after its attempted removal to that court. The bond was conditioned to pay any judgment that the court of common pleas should render against the defendant. This clearly implies that it should be a valid judgment of that court, and not the expression of an ineffectual opinion. A decision of that court, which it had no authority to make, lacks all of the essential qualities of a judgment. As we have heretofore seen, the court of common pleas acquired no jurisdiction from the order of the district court, and it acquired none by any subsequent proceedings. That court could not, therefore, render a judgment in that action.

The appellant also claims that the defendant should be precluded from raising the questions as to the invalidity of this bond because they have not been raised by answer.

It will be observed that the questions raised all appear on the face of the complaint and lie at the foundation of the action. In any view that we can take of the case no cause of action was stated in the complaint.

The subsequent appearance of the plaintiff in the action in the court of common pleas adds nothing to the force of the bond, for the obligation executed by the sureties was either legal when the contemplated action had been taken upon it, or it was then void. The parties to the action could not, by their voluntary action or agreement, create a consideration for an undertaking which had no existence at the time of its execution.

While it may be assumed that the parties intended to execute an instrument which should be effectual to remove the case to the court of common pleas, we have no authority to say they intended thereby to leave it optional with the plaintiff to remove it or not as he should afterwards elect.

Finally, it is claimed that the defendant is estopped from disputing the jurisdiction of the court of common pleas by the recitals in the undertaking, and that he thereby admits that it did or would acquire jurisdiction by the order of removal. We do not see what recitals there are in this instrument which affirms such a fact or estops the sureties from availing themselves of the insufficiency or invalidity of the instrument.

It may be inferred from the language of the bond that the defendant intended to claim that by filing such a paper and moving the court to transfer the case, he had, under the Act of 1857, the right to have the case removed into the court of common pleas; but there is no recital therein which he now controverts, and none which directly affirms either as fact or opinion. At the strongest, what was then said amounted only to an inference as to what was the defendant's opinion; and this, honestly entertained

Acquiescence in the usurpation of authority by Keeley cannot be inferred from omission of defendant to repudiate the unauthorized act; for the obligation to repudiate arises only upon knowledge of the usurpation-and here is no evidence that defendant knew that the employment of plaintiff was outside the contract, or, otherwise than as servant of Fickett & Co., to perform the extras pursuant to the contract. The principal, upon being informed of an act in excess of his authority, has a right to elect,"

etc.

Andrews v. Etna Life Ins. Co. 92 N.Y. 604. The decision of the general term is based, not alone upon the theory of agency, but upon the ground that as defendant is in enjoyment of the benefit of plaintiff's work, "the law implies an obligation to pay the value of it." It will be observed that the court assumes the building to be the property of defendant, of which there is no evidence. But, upon the postulate on which the case was tried, viz.: that the legal title is in defendant, for the benefit of the church, and that the building is occupied by the church as a hospital, it would not be a valid inference that defendant was in receipt and enjoyment of the benefit of plaintiff's work, with the effect of raising an implied assumpsit on his part to pay for the work. However, a long established and familar rule exempts the owner of real property from the operation of the rule here applied by the court.

Smith v. Brady, 17 Ñ. Y. 189; Reed v. Board of Education, 4 Abb. App. Dec. 24; Ellis v. Hamlen, 3 Taunt. 52; Burn v. Miller, 4 Taunt. 745; Munro v. Butt, 8 Ell. & Bl. 738; Zottman v. San Francisco, 81 Am. Dec. 105.

To the point that the extra work having been done without authority from defendant, he is not bound to pay for it, Dobson v. Hudson, 1 C. B. N. S. 652, is an explicit authority.

Mr. Daniel G. Harriman, for respondent: The questions of fact in this action having been settled in favor of the plaintiff, by the referee, and confirmed by the general term below, upon conflicting evidence, cannot now be reviewed by this court.

Code Civ. Proc. § 1337; Re Ross, 87 N. Y.

514.

The principal is in all cases bound for the acts of his agent done within the scope of his authority.

1 Pars. Cont. 40; Whart. Ag. § 454; Evans, Ag. 591; Story, Ag. § 127, note.

"A principal is liable to third parties for whatever the agent does or says; whatever contracts, representations or admissions he makes; whatever negligence he is guilty of, and whatever wrong or fraud he commits; provided that the agent acts within the scope of his apparent authority, and provided that a liability would attach to the principal if he was in the place of the agent.

Ewell's Evans, Ag. p. 142 and cases cited. "When plaintiff had substantially performed his contract the architect was bound to give him the certificate, and his refusal to give it was unreasonable; and it was held that an unreasonable refusal on the part of an architect in such a case to give the certificate dispenses with its necessity."

Nolan v. Whitney, 88 N. Y. 648; Kingsley v. Brooklyn, 7 Abb. N. C. 28.

The authority of an agent to perform all things usual in the line of business in which he is employed cannot be limited by any private instructions not known to the party dealing with him.

Smith, Mercantile Law, 5 G; Story, Agency, 151, 8th ed.; Armour v. Mich. Cent. R. R. Co. 65 N. Y. 116; President etc. Westfield Bank v. Cornen, 37 N. Y. 320; Pechner v. Phænix Ins. Co. 65 N. Y. 207; Walsh v. Hartford Fire Ins. Co. 73 N. Y. 10.

The jury, from the acts and declarations of the owner, may find that he accepted the work done as finished and completed to his satisfaction. The owner may waive any stipulations he had introduced into the contract in his own favor, and if he does so, as by accepting the house, as under a completed contract, and without the certificate of the architect, he cannot complain if the builder is allowed to recover.

Smith v. Alker, 2 Cent. Rep. 804, 102 N. Y. 87; Andrews v. Etna Life Ins. Co. 92 N. Y. 604; Smith v. Tracy, 36 N. Y. 82, 83; Keeler v. Salisbury, 33 N. Y. 648.

"A principal cannot avoid his agent's acts as to part of a transaction, and avail himself of them as to the residue."

Merchants' Bank v. Meyers Steel & Wire & Iron Co. 2 N. Y. Week. Dig. 214.

A principal cannot retain and enjoy the benefit of a bargain made by his agent, without adopting the instrumentalities by which he consummated it.

Elwell v. Chamberlin, 31 N. Y. 611; Bennett v. Judson, 21 N. Y. 238; Meehan v. Forrester, 52 N. Y. 277.

Danforth, J., delivered the opinion of the court:

On the 24th of February, 1882, the defendant, of the first part, and Fickett & Co., of the second part, entered into an agreement by which Fickett & Co. undertook to do certain work upon St. Mary's Hospital, in accordance with drawings and specifications made by one Keeley, an architect, and to finish the same to his satisfaction and under his direction. The plaintiff is not a party to that contract, but it is conceded that he did work and furnished materials necessary for the completion of the building, to the amount of $571.76. Not being paid he sued the defendant, alleging that the work was done and the materials furnished for the defendant and for his benefit.

The defendant answered, denying that he, either himself or by any authorized agent, employed the plaintiff to do the work.

Upon the pleadings, therefore, the only issue was as to the liability of the defendant to pay for work and materials, the benefit of which according to the pleadings he enjoys.

The issue was referred to a referee, and he, after hearing the evidence, at the defendant's request, found: first, that the plaintiff did the work under the instructions of P. C. Keeley; second, that Keeley was the architect of the hospital. He also found that Keeley acted as agent of the defendant, and further found that the defendant subsequently ratified the action of Keeley, accepted and is now using and enjoy ing the benefits of the plaintiff's work and materials. He found the value as above stated. Upon appeal to the general term the judg

The learned counsel for the appellant contends in the first place that there was no evidence of authority in Keeley to contract with the plaintiff for the work in suit; second, that the defendant never ratified the appointment by Keeley; and lastly that the judgment is wrong because of the admission by the referee of improper evidence, without which the plaintiff's case was not made out; in other words, that the evidence was insufficient to charge the defendant with liability for the plaintiff's claim. He concedes that if there is any conflict in the evidence in regard to the matters in issue, the findings of the referee and the decision of the general term would be conclusive upon this court, and fatal to his appeal.

The only question then is as to the evidence presented by the parties.

That Keeley was the architect and superintendent of the construction of the building referred to is established beyond question. One of the firm of Fickett & Co. testified that the plaintiff was employed to do all the painting on the hospital that they had agreed to do under the contract, but that the work in question was outside the contract and not included in it.

The plaintiff testified that after completing the work now in question, he presented his bill to the defendant, who looked at it and asked him "What appeared to be the trouble? Was not the work done?" Plaintiff said: "It was," and the defendant said: "You know I know nothing about this work. Mr. Keeley looks after all this work for me, and I cannot pay this bill." Plaintiff said: " Why, Bishop; is not Mr. Keeley your agent?" He said, "He is, and therefore I cannot pay you without his signature to your bill; I will see Mr. Keeley and let you know shortly. Please call again." Plaintiff did so, and defendant examined the bill, and asked who ordered the work to be done? and then said: "This should be left to arbitration." "He asked me to leave the bill with him, and I did so. He objected to no part of the bill." The defendant subsequently told the plaintiff : Mr. Keeley says he never ordered you to do any work." The defendant then advised plaintiff to see Mr. Keeley again.

The plaintiff further testified that the work was done in pursuance of directions received by him from Mr. Keeley; and further that he told Keeley that the things required were extra; and Keeley told him "They will have to be looked after and taken care of. You make them the same as the rest of the work."

Upon cross examination by the defendant, he not only reiterated the testimony before given as to directions received from Keeley, but being asked as to the authority he understood Mr. Keeley to have, answered, "I understood he had entire authority to do more or less work, or have me do anything he saw fit;" and also, "I considered Mr. Keeley's orders as completely binding on the defendant."

Further, in answer to the counsel for the defendant, he said: "I understood he was defendant's agent for all purposes on that building."

The defendant was examined as a witness and proved that Keeley was the architect of the hospital. He denied that Keeley had any |

and that personally he never employed Mr. Mooney to do any work on the hospital.

Keeley, examined for the defendant, substantially contradicted the plaintiff, so far as his memory served him. With regard to the extra work as described by the plaintiff, his testimony tends to corroborate the plaintiff concerning the change of color and requiring the panels of the doors to be made lighter, and the stiles darker.

He also testifies that extra work was done besides what was mentioned in the contract, that some was ordered by Sister Ermiliana, who, by the terms of the contract, was authorized to make additions or require deviations from its provisions. He cannot state positively that he himself did not order some extra work.

In any view of the evidence the work was done, the materials were furnished, and now form part of the structure referred to in the contract. If on the defendant's evidence the work was such as the contractor should have performed, on the plaintiff's evidence it was extra work, ordered by the architect, by him deemed necessary in the construction of the building, to the benefit of which the defendant has succeeded, and there seems to be no legal reason why the plaintiff should not be paid according to his claim. It was for the referee to determine which of the two sets of witnesses he would believe, and what inferences he would draw from the facts stated by them. There is enough on the plaintiff's side to make out a case; and that is sufficient to deprive this court of jurisdiction to weigh the evidence.

We think the facts found by the referee are not conjectural merely, but are supported by evidence, and upon those facts the plaintiff was entitled to judgment. The exceptions to evidence have been examined. They are general and not specific in form, and point to no substantial error.

The judgment should be affirmed.

All concur, except Rapallo, J., dissenting, and Earl, J., not voting.