App. Div.] Fourth Department, March, 1910. * * * he does 'seek frand to accept less than that fair value, and * by this action to have that consideration made equal' to what it would have been had no falsehood been told him. * * * There having been no rescission of the compromise agreement, that must stand, and it discharges forever the original contract and extinguishes all right to any balance due upon it. * * Such damages will compensate the fraud as make the compromise, which is to stand, an honest and fair one, instead of a dishonest and fraudulent one. Dammages which leave it to stand but purge it of fraud are what should be recovered. What the plaintiff sold and the defendants bought was not a conceded but a disputed claim. * * * Upon a false statement of the facts material to the probabilities of success, and so affecting vitally the value of the disputed claim in the compromise negotiation, the plaintiff was induced to take $25,000 for his resisted demand. If there had been no fraud, how much more would he have got in the compromise? When we know that, we know the loss and can measure the indemnity. * * * A dispute ending in a compromise implies mutual concession and loss borne by each party, and if the compromise is honest, and fair, the loss thus resulting is beyond recovery by either against the other. But that portion of the loss of one which is put upon him in excess by the fraud of the other, and is due solely to that fraud, may be recovered. * * * That there is difficulty in ascertaining these damis true, and much must be left to the sound judgment and good common sense of a jury, but that often occurs in actions ex delicto. The result will be that the plaintiff, affirming the compromise agreement and unable to recover the contract balance, is entitled in accordance with the general rule to have such compromise agreeinent made as good for him as it reasonably and fairly would have been if only the truth had been told instead of a falsehood asserted. When that is done the loss due to the fraud, and that only, is recovered; the true value of the disputed claim and not the false value; and so not at all the extinguished contract balance." ages These extracts show very clearly the principles of law applicable to this kind of actions, affirming a compromise agreement and seeking damages for fraud in making the same. We see no reason why these principles are not applicable to the action here being reviewed. The plaintiff had a claim for damages on account of personal inju Fourth Department, March, 1910. [Vol. 137. ries inflicted through the negligence of the defendant. It was not a conceded claim, neither the right to recover nor the amount of damages was agreed to. Both were in dispute. Negotiations for a compromise were had, resulting in an agreement wherein plaintiff released his claim for $151. As an inducement to plaintiff to make the agreement he was told that the defendant was unwilling to pay more, and he must take that or no settlement would be made. This statement was false. McCormick had actually received from the defendant and had it in his hands to pay plaintiff on account of the compromise of his claim, $325, and he pocketed the balance, $174, himself. Certainly, if the plaintiff had known these facts and the false representation had not been made, he would have demanded and received at least the additional $174 himself. The claim, when the real facts were known, was fairly worth the full $325. He recovered the balance he lost, $174, under the law as laid down in the Gould case. I see no reason why the recovery should not be sustained. The amount recovered here is not large, but the case may very likely be important by reason of many other cases likely to arise out of the embezzlement of this same claim agent, McCormick. The defendant claims no actionable fraud was shown. I think the false representation made constituted such fraud. It was of an existing fact, and its effect upon plaintiff in inducing the compromise can hardly be doubted. I do not care to discuss the matter at great length; I leave it to the sound common sense of ordinary minds. The plaintiff lost $174 by reason of the false statements of McCormick, the agent of the defendant. He has been permitted to recover the amount of this loss as a direct result of the fraud. The recovery is a just and legal one. I think no reversible errors were committed by the trial court in its charge or disposition of defendant's requests to charge, and that there should be an affirmance in the case. All concurred. Judgment and order affirmed, with costs. App. Div.] Fourth Department, March, 1910. NORMAN J. GOULD and Others, Respondents, v. THE VILLAGE OF SENECA FALLS and Others, Appellants. Where a proposition to establish village water works and issue bonds to be refunded by the proceeds of an annual tax on property within the village is submitted to voters at a special election under section 6 of the General Municipal Law, women owning taxable property who, except for sex would be entitled to vote for village officers, are entitled to vote on the issue submitted. This right is specifically given by subdivision 2 of section 41 of the Village Law. Where the Appellate Division affirms without opinion it does not necessarily adopt the opinion of the court below so as to make it a binding precedent. MCLENNAN, P. J., dissented. APPEAL by the defendants, The Village of Seneca Falls and others, from an order of the Supreme Court, made at the Monroe Special Term and entered in the office of the clerk of the county of Seneca on the 23d day of September, 1909, granting a temporary injunction. Clarence A. MacDonald and William H. Hurley, for the appellants. J. N. Hammond, for the respondents. WILLIAMS, J.: The order appealed from should be affirmed, with ten dollars costs and disbursements. The action was brought for a permanent injunction on the ground that the special election, at which the proposition to establish water works and to issue bonds was voted upon, was illegally conducted and void, and, therefore, such bonds would be invalid. The real question involved is the right of women to vote at such election. We think it must be said that there were hundreds of women in the village who were possessed of the qualification to vote, except on account of their sex. None of them were permitted to vote though some of them attempted to. They were systematically and by design excluded as a class, and only men were allowed to vote. APP. DIV.- VOL. CXXXVII. 27 Fourth Department, March, 1910. [Vol. 137. Some question is made as to whether technically these facts were established upon the motion, but we think for the purposes of this appeal they sufficiently appear. Upon the trial the facts can be made to appear more fully. The motion was decided mainly upon the one question of the right of women as a class to vote at the election. The bonds when issued would become a "funded debt." Section 6 of the present General Municipal Law (Consol. Laws, chap. 24; Laws of 1909, chap. 29) is a re-enactment of section 5 of the former General Municipal Law (Gen. Laws, chap. 17; Laws of 1892, chap. 685). Under the former statute it was held that the words "funded debt" include "all municipal indebtedness embraced within or evidenced by a bond, the principal of which is payable at a time beyond the current fiscal year of its issue, with periodical terms for the payment of interest, and where provision is made for payment by the raising of the necessary funds by future taxation and the quasi pledging, in advance, of the municipal revenue." (People ex rel. Peene v. Carpenter, 31 App. Div. 603, 608.) Section 6 of the present General Municipal Law provides that "A funded debt shall not be contracted by a municipal corporation except for a specific object expressly stated in the ordinance or resolution proposing it; nor unless such resolution or ordinance shall be passed by a two-third vote of all the members elected to the board or council adopting it or submitted to and approved by the electors of the town or county or taxpayers of the village or city when required by law. Such ordinance or resolution shall provide for raising annually, by tax, a sum sufficient to pay the interest and the principal as the same shall become due." The proposition submitted at this special election was in form fully complying with this provision of the General Municipal Law. It provided, among other things, "and shall there be raised annually, by the levy and collection of a tax upon the taxable property in said village a sum, which with the net revenue derived from the said water works system, shall be sufficient to pay the principal and the interest on the said several bonds, as such principal and interest shall mature and become due and payable?" There is no doubt but that it was necessary to submit the question to the taxpayers at a special election, before the bonds could be issued. (See Village Law [Consol. Laws, chap. 64; Laws of 1909, App. Div.] Fourth Department, March, 1910. chap. 64], § 128, subd. 6.) Subdivision 2 of section 41 of that law provides among other things: "A woman who possesses the qualifications to vote for village officers, except the qualifications of sex, who is the owner of property in the village assessed upon the last preceding assessment-roll thereof, is entitled to vote upon a proposition to raise money by tax or assessment, or for the dissolution of the village." There is no controversy over the other qualifications of women to vote, except their sex. There seems to be no doubt as to the statute above quoted. Its language is plain and unambiguous and effect must be given to its provisions. The case of People ex rel. Dillon v. Moir (129 App. Div. 938) is not an authority for the proposition that the right of women to vote under this statute does not exist. No opinion was written when that case was affirmed in this court. It was held at Special Term (62 Misc. Rep. 35) that the proposition or resolution there submitted did not entitle women to vote in that it provided only for the issue of bonds and not for the raising of money by tax or assessment to pay the principal or interest as it matured. We affirmed, not upon the opinion at Special Term, but without any opinion at all. The bonds then would clearly have been void, because the resolution failed to comply with the provisions of section 5 of the former General Municipal Law above referred to. That section expressly required the resolution to provide for the raising annually by tax an amount sufficient to pay the principal and interest of the bonds as the same should become due, and nothing of this kind was contained in the resolution. Moreover, we held in Village of Canandaigua v. Hayes (90 App. Div. 336, 347) that a resolution under the former statute was insufficient to validate bonds which merely provided for the raising by annual tax of a sum sufficient to pay the interest and principal as the same became due, but failed to indicate in what installments the bonds were to be made payable and which were to be paid each year. The resolution in the Dillon case was defective in this respect also. It was manifestly insufficient in form when adopted to authorize the issue of any bonds. There was abundant reason, therefore, for affirming the order restraining such issue of bonds regardless of the question as to the right of women to vote. |