Van Alstyne agt. Railroad Company.

natural rights of individuals are surrendered. Every public regulation in a city does in some sense limit and restrict the absolute right of the individual owner of property. But this is not a legal injury. If compensation were wanted, it is found in the protection which the owner derives from the government, and perhaps from some other restraint upon his neighbor in the use of his property. It is not a destruction or an appropriation of the property, and is not within any constitutional inhibition. (Vanderbilt agt. Adams, 7 Cow., 349; People agt. Walbridge, 6 id., 512; Mayor, &c., of New York agt. Miln, 11 Peters, 102; 3 Story's Const. Law, 163.)

The conviction was right and the judgment must be affirmed.

SUPREME COURT.

NICHOLAS G. VAN ALSTYNE, appellant agt. THe President, &c., OF THE INDIANAPOLIS, PITTSBURGH AND CLEVELAND RAILROAD COMPANY, respondents.

Where there is conflicting testimony on a question of fact e. g. the rescinding of an agreement by consent between the parties, and is passed upon and decided by the referee who tried the cause, it is conclusive on appeal.

Where an action was brought upon an agreement to recover two months wages, and judgment by default was entered in favor of the plaintiff against the defendants, held, that in a second action upon said agreement to recover wages for two other months, the defendants were not estopped from showing that the agreement was vacated by mutual consent before the judgment by default was obtained.

New York General Term, May, 1861.

CLERKE, SUTHERLAND and ALLEN, Justices.

THE Complaint alleges that the parties made an agreement whereby the plaintiff was to work for the defendants for a year, cemmencing January 1st, 1857, and the defendants were to pay the plaintiff $75 for each and every month

Van Alstyne agt. Railroad Company.

therefor; that the plaintiff had performed his part of the contract, and had tendered his services for the months of November and December, 1857, which the defendants rejected; and that there is $150 due him from the defendants.

The answer denies that the plaintiff worked for the defendants during said months of November and December, and puts in issue the alleged tender by the plaintiff of his services for the two months. The answer also sets up as a defence, that on the 15th of April, 1857, both parties entered into an agreement with each other, whereby the said agreement, for a year, was terminated and the employment of the defendant ceased.

The action was referred to the Hon. William Mitchell, and tried before him.

The referee found that the plaintiff was employed by the defendants for a year, commencing the 1st of January, 1857, at $75 a month, payable monthly; that he continued in their employment until the 15th of April, 1857, when he was paid in full to that day, and was, at his own request and with the consent of the defendants, discharged from their employment, and went into the employment of another company, in whose employment he continued until September 1st, 1857; that on the last mentioned day he tendered his services to the defendants, and tendered the same almost daily from that time to the end of the year 1857.

The referee also found, as matter of fact, that the plaintiff sued the defendants in November, 1857, on a complaint similar to the complaint in this action, for two months' wages, viz., for September and October, 1857; that the defendants putting in no answer, judgment was taken against them by default, and the amount of the judgment levied on execution.

The referee found, as matter of law, that the defendants were not estopped from showing in this action that the agreement for a year was vacated by mutual consent; that

Van Alstyne agt. Railroad Company.

under the facts proved in this case, it was so vacated, and that the defendants were entitled to judgment.

H. SACIA, for the appellant.

L. FAIRBANKS, Jr., for the respondents.

By the court, SUTHERLAND, Justice. There was conflicting testimony on the question of fact, whether the agree ment for a year was vacated by mutual consent.

The referee found that it was, and that finding cannot be questioned on this appeal.

The other question is, were the defendants estopped by the record of the recovery against them in the former action which was introduced in evidence on the trial, from show. ing in this action that the agreement for a year had been so vacated?

The referee held, as matter of law, that they were not. This was clearly right.

This action was not brought for the same cause as the former one. The alleged cause of action in this action was the non-payment of the stipulated wages for the months of November and December; in the former action, the nonpayment of the stipulated wages for the months of September and October. The causes of action in both suits were founded upon the same agreement, but were not the same. The defendants did not appear or answer in the former action, and, of course, did not set up the matter as to the agreement having been vacated by mutual consent in that action, by way of defence, and that matter could not have been tried or passed upon in that action.

Had the defendants appeared on the former action and put in a general denial, without setting up the matter as to the agreement having been vacated by mutual consent by way of defence, it would not have been necessary for the plaintiff to prove that the agreement had not been rescinded or vacated, in order to recover in that action-it VOL. XXI.

12

People ex rel. McSpedon agt. Haws.

would not have been necessary for the plaintiff to go out of his case and prove a negative.

The allegation in the complaint in the former action, that the defendants had refused to pay the plaintiff for the months of September and October, or had rejected his services when tendered" without any legal excuse," does not affect the question. Surely it would not have been necessary for the plaintiff to show whether the defendants had any excuse, or to raise the question whether they had any excuse.

The counsel for the plaintiff substantially takes the position that because the defendants chose, voluntarily, and without being under any legal obligation to do so, to pay the plaintiff for the months of September and October, that therefore they are bound to pay him for November and December, although they now insist upon their legal rights.

In my opinion, the cases cited by the counsel for the plaintiff have no application to the point in question, and the judgment should be affirmed with costs.

SUPREME COURT.

THE PEOPLE ex rel. McSPEDON and BAKER agt. ROBERT T. HAWS, Comptroller.

Where the legislature has enacted that a party shall receive compensation for certain services, and has taxed the inhabitants in a particular locality for that purpose, they have as much authority to specify a maximum amount, beyond which the party shall receive nothing, as they have to specify the exact sum in the first instance, and in neither case, have the courts power to supervise or review such action.

An act authorizing the comptroller of the city of New York to pay a party, which they have declared to be entitled to compensation for services rendered the county, the amount when it shall be judicially determined, does not require that an ordinary action shall be commenced against the board of supervisors and a judgment recovered in it, before the comptroller shall pay any amount. This judicial determination may be and is properly had under proceedings upon mandamus. An order of the special term is not final so as to authorize an appeal, where there is an order of reference outstanding and undetermined.

People ex rel. McSpedon agt. Haws.

New York General Term, May, 1861.

CLERKE, SUTHERLAND and ALLEN, Justices.

APPEAL from an order at special term allowing a mandamus against the comptroller of the city of New York.

J. T. BRADY, J. W. EDMONDS and WM. FULLERTON, for relator.

A. R. LAWRENCE, Jr., and H. H. ANDERSON, for comptroller.

By the court, CLERKE, P. Justice. I. The position taken by the counsel for the defendant in his seventh point, is disposed of by the act of April 17th, 1860, authorizing the supervisors of the county of New York to raise money by tax for city and county purposes. By the sixth section of the act they are empowered to raise and collect, in addition to the ordinary taxation, the further sum not exceeding eighty thousand dollars, to meet and pay whatever sum up to that amount may be found due to the contractors with the commissioners of records.

Whether the legislature had or had not the constitutional power originally to appoint the commissioners of records, under whose direction and superintendence the work was done, yet the work having been done and the legislature determining that the work was a service rendered to the county, they had the right to tax the inhabitants of that portion of the state to pay for it; although it cannot authorise the taking of the property of an individual for public purposes without compensation, or for private purposes with or without compensation, yet it has the absolute power to determine what sums shall be raised by taxation, and the purposes to which they shall be applied.

It can make appropriations of money whenever the public well-being requires, and of this it alone is the sole judge.

It can apportion the public burthens among all the taxpaying citizens of the state or among those of a particular