HARVARD NEW YORK PRACTICE REPORTS. Coman agt. Allen. LAW SCCOOL 115 LIBEARY. THIS was an appeal from an order made at the December special term of this court, held in Onondaga county in 1860, denying the motion of the defendant, Allen, to vacate the order of arrest as to him, with $10 costs. The order of arrest was granted by the county judge of Madison county, in October, 1860. It required the sheriff of that county to arrest the defendants and hold them to bail in the sum of $300. The affidavits, on which the order was obtained, showed that the plaintiff had a cause of action against the defendants, for the price of some cattle he had sold and delivered to them. The affidavits also showed that the defendants were partners in the butchering business in the county of Madison; that the defendant Reese, purchased the cattle of the plaintiff, in the absence of the defendant Allen; that Reese fraudulently represented to the plaintiff at the time he purchased the cattle, that the defendants were the owners and possessed of property, and were perfectly good and able to pay for the cattle at any time; that Reese knew such representations were false, but that the plaintiff did not know they were false, but believed they were true, and relied upon them in selling and delivering the cattle to the defendants on credit. The affidavits showed that Reese was guilty of a fraud in purchasing the cattle; and as he purchased them on credit for the defendants, and as they had the cattle and butchered them as partners, the question was presented, whether Allen as well as Reese, was liable to arrest for the fraud practiced by Reese in the purchase of the cattle. L. T. BENTLEY, for plaintiff. J. STERLING SMITH, for defendant Allen. By the court, BALCOM, P. J. The defendant may be arrested, when he has been guilty of a fraud, in contracting Coman agt. Allen. the debt, or incurring the obligation for which the action is brought. (Code, § 179, sub. 4.) The question in this case is whether the defendant Allen is liable to arrest for the fraud his partner Reese, was guilty of in purchasing the cattle. Reese was acting in the legitimate business of the partnership when he purchased the cattle of the plaintff on credit. The cattle came to the hands of the defendants and were slaughtered by them as partners. It is, therefore, clear that the plaintiff could have avoided the contract of sale of the cattle by reason of the fraud of Reese, and maintained trover for them against both defendants. (See Hawkins agt. Appleby, 2 Sand. S. C. R., 421; 1 Hill, 311.) In Hawkins agt. Appleby, it was held, where goods are obtained for the use of a firm, by means of the fraud of one of its members, the other partner, by receiving and participating in the use of the goods, will be held to have adopted the fraudulent act of the one who obtained them, and will be placed in the same situation in reference to the rights of the vendors of the goods, as if he had directed his partner to procure the property, or had concurred with him in the transaction. The principle is elementary that all the members of a firm are liable in a civil action for the frauds committed by one partner in the course of the transactions and business of the partnership, even when the other partners had not the slightest connection with, or knowledge of, or participation in the fraud. (Story on Partnership, § 108.) Allen as well as Reese contracted the debt for the cattle; and each, (for the purposes of this action,) was guilty of a fraud in contracting it. The superior court of New York city decided in Townsend agt. Bogart, (11 Abb., 355,) that in an action in the nature of an action on the case against partners for obtaining goods from the plaintiffs by fraud, a partner who did not participate personally in the fraud, is liable to arrest as well as those who did. I approve of that decision, and think we should follow it. I am, therefore, of the opinion that the defendant Allen must People ex rel. Kelly agt. Haws. be deemed guilty of a fraud in contracting the debt for the cattle as well as his partner and co-defendant Reese. It follows that the order appealed from should be affirmed with $10 costs. Decision acccordingly. SUPREME COURT. THE PEOPLE ex rel. JOHN KELLY, Sheriff, &c. agt. ROBERT T. HAWS, Comptroller, &c. Where the subject matter of an account is within the jurisdiction of the board of supervisors of the county of New York, their final action thereon, in settling and allowing the same, is conclusive, upon the comptroller of that city, notwithstanding the broad language of § 6 of the act of April 15, 1857. Accounts for services rendered in actions commenced by the district attorney of the county of New York, under § 21 of the Metropolitan Police Act, do not come within the jurisdiction of the board of supervisors of that county; they are not county charges, but Metropolitan district or state charges. But where the accounts are for services in actions brought by the commissioners of excise, or in their name, they come within the jurisdiction of such board of supervisors, and on being audited and settled by that board the comptroller of the city is bound to pay them. New York Special Term, May, 1861. A. OAKEY HALL, for the relator. SUTHERLAND, Justice. On the 2d day of April, 1860, the relator presented to the board of supervisors of the county of New York an account amounting to $5,885.20, for services which he claimed had been rendered by him as sheriff to or for the county of New York, and were chargeable to said county; which account was examined, allowed, and settled by the board at said sum, and was afterwards by resolution of the board approved by the mayor, ordered People ex rel. Kelly agt. Haws. and authorized to be paid by the comptroller from the appropriation for "officers' and witnesses' fees." On or about the 2d day of July, 1860, the relator presented to the said board of supervisors another account, for other services, amounting to $5,911.70, which he claimed had been rendered by him as sheriff, to or for the county of New York, and which were chargeable to said county; which account was also examined, settled and allowed by the said board, at the last mentioned sum, and was in like manner, by resolution of the board, approved by the mayor, ordered and authorized to be paid by the comptroller from the same appropriation. These accounts, as thus allowed, with the resolutions of the said board, were afterwards presented by the relator to the defendant, as comptroller of the city of New York, and the examination and allowance thereof by the city auditor, and the approval thereof by the comptroller, and warrants for the payment of the same, demanded. The auditor declined to allow, and the comptroller refused to approve and draw his warrant for a certain class of items in the first account, amounting to $1,696, or for a certain class of items in the second account, amounting to $525, on the ground that they were not legal county charges; the first class of items being charges for summoning jurors for the court of common pleas of the city and county of New York, in certain actions brought by the district attor ney, for penalties under the Metropolitan police act, and the second class of items being charges for like services, in summoning jurors in certain actions brought in the court of common pleas, for penalties, either under the act entitled "An Act to Suppress Intemperance and to Regulate the Sale of Intoxicating Liquors," passed April 15, 1857, or under the said police act. On the 21st day of May, 1860, the relator presented to the said board of supervisors a certain other account, amounting to $3,895.96, for other services claimed to have People ex rel. Kelly agt. Haws. been rendered by him as sheriff for the county of New York, and to be chargeable to said county; of which amount $516.70 were for serving summons and complaints in said actions brought by the district attorney under the police act, and $3,378.26, the remainder thereof, for serving like process or papers in actions commenced by, or in the name of, the board of commissioners of excise, under said excise act. This account was also audited and allowed by the board of supervisors, at its full amount, and, by resolution of the board, approved by the mayor, directed to be paid by the comptroller from the appropriation aforesaid. This account and the resolution directing its payment were also presented to the department of finance of the city; but the auditor refused to allow, and the comptroller refused to approve the same, or to draw his warrant therefor, alleging that the same was not a legal county charge. The comptroller paid all of the two first-mentioned accounts, except so much and such items thereof as he refused to draw his warrant for, as aforesaid; but such payment was received by the relator, under an agreement between him and the comptroller, that the same should not prejudice the relator's right to claim payment of the balance of said accounts. On an affidavit of the relator, substantially stating the foregoing facts, an order for the defendant, as comptroller, to show cause why a peremptory mandamus, commanding him to draw his warrant for the amounts remaining unpaid upon such accounts, was granted. The comptroller appears and shows cause, and on his behalf his affidavit is read, stating substantially, among other things, as to the account or bill first in the relator's affidavit mentioned, that he refused to pay the sum of $1,696, as in that affidavit alleged; that, as appears by the said bill, and as he believes to be true, said entire amount of $1,696 is charged for services alleged to have been rendered in summoning the jury to attend the court of com |