In cases where fraud is not penal, equity has concurrent jurisdiction with courts of law, as a general rule."

Dederer v. Voorhies, 81 N. Y. 153.

Mr. George E. Horne, for respondent: The action was brought to review a judgment recovered in a court of competent jurisdiction, which had the entire subject matter in dispute before it; which judgment had never been reversed, but on the contrary, had been affirmed by all the appellate courts, and paid in full by the judgment debtor. It was an action to overhaul such a judgment, and to recover back money paid on that judgment. The ground of recovery was stated to be an alleged mistake by the court in arriving at the amount of recovery; and an excessive award by the former judgment.

No such action can be maintained. The authorities are unanimous against it, from the earliest reported cases, both in England and in this country, to the present time.

Marriot v. Hampton, 7 Term Rep. 269; Walker v. Ames, 2 Cow. 428; Leonard v. Wilkins, 9 Johns. 233; Platner v. Best, 11 Johns. 530; White v. Merritt, 7 N. Y. 355; Farrington v. Bullard, 40 Barb. 517; Binck v. Wood, 43 Barb. 315; See also, 6 Barb. 308; 15 Barb. 646. The rule is equally applicable to courts of equity, as of law.

LeGuen v. Gouverneur, 1 Johns. Cas. 437.

Peckham, J., delivered the opinion of the

court:

The questions herein arise upon a demurrer to the plaintiff's complaint.

The plaintiff in his complaint alleged that prior to October 1, 1860, one Austin Packard commenced an action against him, which was duly referred, and on that date the referee reported in favor of Packard, and judgment was entered in favor of the latter for nearly $30,000. On appeal by the defendant therein, the judgment was modified by the general term and so affirmed, and the defendant then and about December 8, 1864, appealed to the court of appeals, and the judgment was affirmed in the commission of appeals in January, 1873; that Amory, this defendant, previous to the entry of the first judgment, became the owner of the claim which Packard had been prosecuting against this plaintiff up to that time, and succeeded to the interest of Packard, and prior to the judgment of the commission of appeals he had been made the party plaintiff in such action; that such judgment was entered on or about January 3, 1873; that the judgments have all been paid through executions duly issued to enforce the same; that in or about the month of May, 1872, this plaintiff first was advised of the existence of the mistake hereinafter spoken of and of the means of verifying the same, and that such mistake did not appear from any of the records in that action and could only be shown by evidence aliunde; that the action was brought to compel an accounting by this plaintiff with Packard, and on the trial, and in making up his report, the referee made two mistakes of fact which increased the judgment against this plaintiff by the amount of more than $10,600 at the date of the report in August, 1860, and these errors of fact became a part of and entered into the judgment above

spoken of, and remained forever uncorrected, and the amount thereof was fully paid to the defendant herein, with interest from date of the report; that these errors of fact were wholly attributable to the inadvertence of the referee; that, at the time of filing the report, Packard knew of these mistakes of fact made by the referee and concealed his knowledge from the referee and from the plaintiff herein, with intent to deceive and defraud the plaintiff; that this error was so concealed by Packard until May, 1872, when Packard, having quarreled with his assignee Amory, made an affidavit in proceedings in that action and therein disclosed the mistakes spoken of; that at the time of the transfer of the claim by Packard to Amory, and at the time when the latter was substituted as a party plaintiff, he well knew these mistakes of fact had been made by the referee and for the purpose of defrauding this plaintiff he has at all times concealed the same from this plaintiff; and that Packard and Amory colluded and conspired together so to do for the purpose of defrauding the said plaintiff, to the extent of these errors to the end that they might profit thereby.

The plaintiff then demanded, as relief, that the judgment, as affirmed by the commission of appeals, should be modified so that the sum of 10,000 and some odd dollars, with interest from August 16,1860, etc., might be adjudged to have been included in said judgment by a mistake of fact, and such judgment should be declared to be erroneous to that extent; also, that this plaintiff might recover from the defendant the sum above named, etc., besides costs; and for such other or further relief as might be just.

The defendant demurred to this complaint on the ground that it did not state facts sufficient to constitute a cause of action. The demurrer has been sustained at the special and general terms; and from the judgment of affirmance, the plaintiff has appealed to this court.

The allegations of fraud made against Packard and defendant simply assert a failure on the part of either to inform the plaintiff of the existence of the mistake. There is no allegation that either resorted to any misrepresentations or had recourse to any artifice to prevent the disclosure to the plaintiff, or that either did anything whatever towards concealment beyond the bald and naked failure to give this information to him. If this failure were not in and of itself a fraud, it is not made so by alleging that it was induced by a desire to deceive and defraud the plaintiff. Van Weel v. Winston, 115 U. S. 228 [Bk. 29, L. ed. 384].

It was not a fraud unless there was some legal duty resting upon the defendant to make the disclosure.

It may be that in foro conscientia the disclosure should have been made, but unless a party has the right to this information, not only in that forum but juris et de jure, the withholding of it cannot be classed as a legal fraud. Ĭ Story, Eq. § 207 et seq.

I can see no such right here. There must be some relation of trust and confidence existing between the parties upon which to build the duty to disclose, before the right to a disclosure can be enforced by the courts. As has been said, it is not always easy to define when this relation of trust and confidence exists; but there

No additional strength is given to the allegation of fraud by stating that Packard and defendant colluded and conspired together to conceal the fact for the purpose of defrauding the plaintiff. If there were no duty resting on either to disclose the fact, each had the right to agree to be silent. The agreement to be silent where each has the right so to be is not made illegal by alleging that it was done pursuant to conspiracy and collusion between the parties, without going further and showing that the concealment was but one step in carrying out a conspiracy which was unlawful, and it must be shown that it was unlawful and how, and what the steps were which were illegal or fraudulent. Mere general allegations of fraud or conspiracy are of no value as stating a cause of action. Van Weel v. Winston, supra; Cohn v. Goldman, 76 N. Y. 284; Knapp v. Brooklyn, 97 N. Y. 520.

The idea of a mutual mistake existing between the parties, it seems to us, is equally idle upon the allegations in this complaint. The mistake was wholly that of the referee, unaided and uninfluenced by either party. That there may not be relief given in some form when such a mistake exists, we are far from saying, but not upon the principles applicable to transactions between persons who, in the course of the business, make a mutual mistake of facts upon which their transaction is based; and it is clear that a mere mistake of a referee or court in its decision, could not be remedied in such an action as this.

Assuming, however, that a case of fraud or mistake, or both, were made out on this com-. plaint, yet it is shown therein that the plaintiff had full knowledge of all the facts about the time the case was argued in the commission of appeals, and months before the decision of the case by the court, and yet from the time when he acquired such knowledge up to the time of the commencement of this action in 1876, so far as appears from the complaint, he took no step, made no protest nor claimed in any way the existence of a mistake or fraud; and in the most perfect silence he paid the executions (sometime in 1873) issued upon the judgments; and he gives no excuse for such silence or for the payment of the judgments with this knowledge, and without the least effort made to correct the mistake or to expose the fraud and escape from the payment of the money based upon its successful accomplishment.

Under these circumstances we cannot see but that this payment was substantially a voluntary payment, after knowledge of all the facts, and no cause of action could survive such a payment.

The judgment should be affirmed, with costs.
All concur.

John REXFORD, Appt.,

v.

STATE of New York, Respt.

1. The State can only be sued with its own consent and for liabilities which it chooses to assume.

claims to be filed for damages sustained from the canals; from their use and management; or arising from a neglect of an officer in charge; or from any accident or other matter connected therewith; but does not extend to claims arising from damages resulting from the navigation of the canals.

3. The Act of 1876, chap. 444, which constituted the board of audit and gave it authority to hear "all private claims and accounts," did not in any manner change or enlarge the liability of the State.

4.

5.

6.

7.

The exception from the jurisdiction of that board of claims resulting from the navigation of the canals, only takes out of such jurisdiction such claims as are strictly within the terms of the exception, that is those which result from the passage of boats along and upon their waters, and does not apply to accidents or injuries befalling one not at the time engaged in navigation of the canals and which did not result from that navigation.

Where the master of a canal boat, on the way to his boat, in climbing up the abutment of a bridge by irons fixed therein, furnished by the State and serving as the rungs of a ladder, was injured through a loose stone falling from the wall, held, that the board of claims had jurisdiction of the claim for the damages thus sustained by the negligence of the State or that of its officers, and that the injury did not result "from the navigation of the canals."

The bridge being a structure built and maintained by the State to carry a highway over the canal, the proof given was sufficient to warrant the inference that the street existed for public passage when the canal was built and that the duty of maintaining the bridge had been assumed by and rested upon the State.

Although the berme bank of the canal where the injury happened was in no sense a public highway, yet it there served for the passage of those whose business brought them to that locality and the presence of the irons was an invitation to such persons to use them and indicated a purpose on the part of the State to permit the crossing of the bridge by such means and in such

manner.

(Decided April 19, 1887.)

APPEAL from an award of the Board of Claims, dismissing (for want of jurisdiction) a claim for damages for injuries received through a defective bridge over the Erie Canal in the City of Syracuse. Reversed.

The facts and questions raised appear from the opinion.

Mr. A. L. Johnson, for appellant: The board of claims has jurisdiction to audit and allow the claim in question.

Section 1, chap. 321, Laws, 1870, reads as follows:

"Jurisdiction is hereby granted to and conferred upon the canal appraisers, to hear and determine all claims against the State, of any and all persons and corporations, for damages alleged to have been sustained by them from the canals of the State, or from their use and management, or resulting or arising from the negligence or conduct of any officer of the State having charge thereof, or resulting or arising from any accident or other matter or thing connected with the canals. *** Provided, That the provisions of this Act shall not extend to claims arising from damages resulting from the navigation of the canals."

The section above quoted seems broad enough to embrace all claims for damages arising or resulting from the canals by reason of any neglect of the State or its officers having charge thereof, and should be so construed as to give effect to all its provisions.

Rosenplaenter v. Roessle, 54 N. Y. 262; Ramaley v. Leland, 43 N. Y. 539; People v. McGloin, 91 N Y. 250.

By section 2, chap. 444, Laws 1876, the juris diction of the canal appraisers was transferred to the state board of audit, created by that Act; and by sections 12 and 13, chap. 205, Laws 1883, amended by section 8, chap. 60, Laws 1884, the jurisdiction of the canal appraisers and of the state board of audit was transferred to the board of claims.

The evidence shows that the stone that fell upon the claimant had been loose at least a year before the accident, long enough to presume knowledge of its condition on the part of the State, and especially when the defect existed in the midst of a populous city.

Conroy v. Gale, 5 Lans. 345, 347; French v. Donaldson, 5 Lans. 293; 57 N. Y. 496; Good fellow v. Mayor, 1 Cent. Rep. 21, 100 N. Y. 15. The rule laid down by the modern English authorities is that "whenever it is the defendant's duty to use reasonable care to keep a bridge or other structure in repair and proper condition, as respects persons passing along a highway, and it is out of condition, and an accident happens, it is incumbent upon him to show that he used that reasonable care and diligence which he was bound to use, and that the absence of that care can be fairly presumed from the fact that there was a defect from which the accident had arisen."

Kearney v. London etc. R. Co. L. R. 5 Q. B. 411, affirmed in L. R. 6 Q. B. 759.

And the rule as laid down in our own State is that "Where the accident is of such a nature as would not happen in the ordinary course of things, with proper care and management, the fact that it does happen affords reasonable evidence that the accident arose from the want of care."

Lyons v. Rosenthal, 11 Hun, 48; Mullen v. St. John, 57 N. Y. 567; Edgerton v. N. Y. etc. R. R. Co. 39 N. Y. 227; Hume v. Mayor, 74 N. Y. 264; Smith v. British etc. Steam Packet Co. 86 N.Y. 408; Worster v. Forty-Second Street etc. R. R. Co. 50 N. Y. 203; McCarthy v. Syracuse, 46 N. Y. 194.

Mr. D. O'Brien, Atty-Gen., for the State, respondent:

The State is not liable unless it has voluntarily assumed a liability.

Lewis v. State, 96 N. Y. 71.

The only liability ever assumed by the State for injuries growing out of the use of the canals was that assumed by virtue of the Act of 1870. The Law of 1876 did not refer to or repeal the Act of 1870.

Mark v. State, 97 N. Y. 572.

Therefore, if this injury grew out of the navigation of the canals, the State was expressly exempted from liability by the Act of 1870. There was no negligence proved upon the part of the State, and none found by the board. The board expressly refused so to find. The board, also, expressly refused to find that there was anything in the appearance of the stone to indicate that it was dangerous. The board expressly refused to find that the stone had been loose so long that notice of its condition was to be presumed.

Upon these grounds the award may be upheld. The fact that the board gave a wrong reason for its decision, assuming that it did so, is immaterial.

Allard v. Greasert, 61 N. Y. 4; Cole v. State, 2 Cent. Rep. 884, 102 N. Y. 57.

If this injury did not grow out of and result from the navigation of the canal, then it is submitted, within the principle of Lewis v. State, supra, that it was not otherwise such an injury as the State assumed any liability for, under the Act of 1870. That statute intends only to make the State liable for injuries arising from accidents connected with and arising from the use of the canals themselves, as such, and from the negligence of the officers of the State in the use thereof, etc. The building and maintaining of bridges for the use of the traveling public, or the failure so to do, does not come within the provisions of this statute at all.

Finch, J., delivered the opinion of the court: The plaintiff's demand against the State was dismissed by the board of claims as beyond its jurisdiction, and the correctness of that decision depends upon the meaning and construction of section 1 of the Act of 1870. The State can only be sued by its own consent and for liabilities which it chooses to assume; People v. Dennison, 84 N. Y. 281; and this has been expressly held where the cause of action alleged rested upon some misfeasance or nonfeasance. Lewis v. State, 96 N. Y. 71.

We are referred to no statute which permits a claim to be filed for such an injury as the claimant has suffered, except the Act of 1870, chap. 321. The later Act of 1876, chap. 444, which constituted the board of audit and gave it authority to hear all private claims and accounts, did not in any manner change or enlarge the liability of the State; and whoever presents a claim against it must show some statute which involves the consent of the State to be answerable before its own tribunals for such claims or those of a class to which it belongs.

The general language of the Act of 1870 is broad enough to cover the present case. It permits claims to be filed for damages sustained from the canals; from their use and management; or arising from the neglect of an officer in charge; or from any accident or other matter