Blake v. Board of Supervisors of Livingston County , 61 Barb. 149 ( 1871 )

By the Court, Johnson, J.

The action upon the obligation in question is to be governed, in all respects, by the rulés applicable to actions upon commercial paper. The obligation, though called a bond, is payable to “ Peter Clark, or to his certain attorney, executors, administrators or assigns,” and belongs to that class of obligations which has been expressly held, in this State, not to be specialties, but in the nature of. commercial paper, negotiable by delivery, under an assignment in blank. (Brainerd v. New York and Harlem R. R. Co., 25 N. Y. 496, and cases there cited.) The decisions to that effect, in this State at least, are uniform, and the rule is too well settled to admit of doubt or .challenge.

That this instrument had a valid inception, and became and was a binding and subsisting obligation in the hands of the payee, against the county of Livingston, before he assigned it, is clear beyond controversy. It was made and delivered to the town of Springwater, in that county, to enable the town to fill its quota in the Hnited States service. The payee enlisted for that town, was mustered into the service in the usual manner, and received the obligation as his bounty, which such town had offered; the-town was credited with the recruit: and the transacaction between the town and the government of the United States was closed as to that recruit, and does not appear to have been opened afterwards, as between the two bodies. At least it is not shown to have been opened, and there is no presumption that it ever was opened.

The credit was never withdrawn by the general government, but remained, in satisfaction of the requisition, pro tanto. This being the case, I do not see what defense is open to the defendants, except want of title in the plaintiff, to the obligation.

It does indeed appear that the payee was discharged from the service, by the government, and did not serve out any considerable portion of the term for which he enlisted. It also appears that he was discharged upon the application of his father, on the ground of want' of proper age for the service, which the recruit had misrepresented. This was a question entirely between the parent of the recruit and the government, as to which had the better claim to the person and services of the recruit. It was a matter, so far as I can see, that did not in the least concern either the county' of Livingston or the town of Springwater, in a legal point of view, unless they were in some way injured by it.

If the general government, acting voluntarily, or by compulsion of law, discharged the recruit, and elected, as seems to have been the case, to take and retain what was paid to him, by way of compensation or bounty, for his enlistment, in consideration of such discharge, it is impossible to see how the county or town has been legally damnified. If the government had rescinded the transaction, and instead of taking the bounty, or any part of it, had called for another recruit from thedown, in the place of the one discharged, in order to fill the measure of its quota, it might have been different. But it did not. It discharged the recruit, but it kept what had been paid to him instead, and thus affirmed the mustering in of the recruit, and acknowledged performance to that extent, by the town of Springwater, of its obligations. There has been, therefore, no failure of the consideration of the obligation, whatever. Hor has its validity been in any respect destroyed, or injured by reason of the transactions or dealings between the recruit and the government. The disappointed wishes, feelings and expectations, of the patriotic citizens of the county of Livingston, or of the town of Springwater, to aid the government in its struggle, by the strong arm of another soldier, are of no importance whatever, in a legal point of view. The obligation had a valid inception, and its validity has never been injuriously affected, since.

The only question that remains, therefore, is that of the plaintiff’s title. This he derives mediately from the payee himself. It is said, in behalf of the defendants, that the payee, when he made or authorized the transfer, was an infant, incapable of making or authorizing an assignment. The conclusive answer to this is, that it does not concern the defendants. The transfer is good as against all the world, except the infant himself. It is a right and privilege personal to the infant, which no third person can exercise for him; and as long as he does not object, the obligor cannot.

The recruit, and payee of the obligation, is now over twenty-three years of age, and as he does not repudiate the transaction, the law presumes that he acquiesces, and has ratified it. There is no pretense that the plaintiff obtained possession or title by fraud on his part. He took by assignment from the apparent owner, and for a valuable consideration paid; and that.is all that is material, and more than was necessary for him to prove. The suggestion that the recruit and payee obtained the obligation, in the first instance, by fraudulently misrepresenting his age, has no force or .foundation. Ho such defense has been alleged, and no such fact is proved. The judgment is therefore right, and must be affirmed.

[Fourth Department, General Term, at Syracuse, November 18,1871.

Mullin, P. J., and Johnson and Talcott, Justices.]