DANIELS, J.-The verdict was recovered for the amount of a balance found to be due to the plaintiff upon a bill of exchange drawn by Albert A. Meyer upon Meyer & Co., of Hiogo, in Japan, and which was afterwards endorsed by the defendant, Emanuel, and delivered to the plaintiff. The bill was drawn for the sum of six thousand six hundred seventy-eight pounds, nineteen shillings and a sixpence, British currency. With its delivery to the plaintiff, the shipping documents of a cargo of oil owned by the appellant and the defendant, Meyer, were also delivered to the bank, and out of the proceeds of the oil, which was consigned to Meyer & Co., it was expected that the draft would be paid. But evidence was given tending to prove the fact to be that the proceeds of the oil, after deducting expenses, were insufficient for that purpose, leaving the balance of $6,269.24 unpaid upon the bill.

To establish the existence of this deficiency the witness Alfred H. Townsend testified that he was the agent of the plaintiff at the city of New York, and transmitted to the appellant an account of the sale of the oil, indicating the existence of this deficiency; and that a similar account was presented by himself to the appellant, to which the latter made no other objection than that to the amount of interest charged. The appellant denied this interview. And evidence was given by the witness Albert A. Meyer to the effect that the cargo of oil was owned one-third by himself and two-thirds by the appellant. And it was proposed by the plaintiff to read the account of the disposition of the cargo of oil as evidence to the jury. This was objected to on the part of this defendant. And the court then interrogated Mr. Meyer concerning the consent of the appellant that the shipping documents should be transferred to the plaintiff with instructions to turn them over to Meyer & Co. on the arrival of the ship for that firm to dispose of the oil. Upon that subject this testimony was given :

Q. This cargo of oil was, as I understand, shipped to Japan? A. Yes.

Q. By the ship Sontag? A. Yes.

Q. Who handed over the control of it to Meyer & Co., at Hiogo? A. The Hong Kong Bank.

Q. Without any direction from you or your associates? A. No; we gave the documents to the bank, with instructions to turn them over to Meyer & Co., upon the ship's arrival.

Q. Were those directions given by you here? A. Yes.

Q. And by the defendant here also? A. That was the understanding.

Q. Between you and the defendant Emanuel? A. Yes; he had a two-third interest in the cargo.

Q. All I wanted to know was if the disposal of this cargo by the plaintiffs in Japan to Meyer & Co. was in accord with arrangements which you or your firm and the defendant Emanuel or his firm had arranged and agreed upon? A. Yes.

The witness further testified that this arrangement was made by writing which was forwarded by him to the firm of Meyer & Co., in Japan. And upon this evidence the court permitted the

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returns which had been received of the sale of the cargo and showing its proceeds, to be read in evidence to the jury. In the examination of the appellant he denied having made this arrangement. His testimony was: "I never gave him," that is Meyer, "any writing such as he testified to; I never entered into any arrangement with the witness Meyer to give the control of these goods to Meyer & Co., in Japan." Then the question was asked: 66 Did you ever authorize the plaintiff to employ Meyer & Co. to have the control of these goods?" And he answered "No, never; I first heard of any arrangement to give the control of these goods to Meyer & Co. to-day, when I heard Mr. Meyer testify to that upon the stand to-day; I never gave any writing whatever relating to the allowing or authorizing Meyer & Co. to sell that oil."

This brought the fact prominently into controversy whether the appellant had authorized Meyer & Co. to dispose of the oil. If he had, then their return of the result was evidence against him. But if he had not, then it is equally true that the return was not such evidence.

In the course of the charge given to the jury they were instructed that the cargo was so consigned to Meyer & Co. for sale by an arrangement and understanding between the defendants, who were jointly interested as owners of the merchandise. To this the defendant's counsel excepted, and asked the court to charge the jury that it was a question for them and is disputed that Meyer & Co. were selected by the defendant here. That was declined and to that the defendant's counsel also excepted. These exceptions seem to be well founded, for in the direction which was given to the jury the court instructed them that the cargo had been consigned to Meyer & Co. for sale by an arrangement and understanding between the defendants, which included the appellant. This was a mistake on the part of the judge presiding at the trial, for the fact was not proved in such a manner as to permit the court to assume it and direct the jury, as that was done, that it had been established. It was, on the contrary, a fact asserted by Mr. Meyer and denied by Mr. Emanuel. And as the admissibility of the report of sales was placed by the court upon the evidence of Meyer, that this was the fact, when it was afterwards denied by Mr. Emanuel it was for the jury alone to deter mine whether the fact had been proved in the case or not.

By the instruction which was given and withheld this inquiry was taken from the province of the jury and the fact was decided by the court. If the defendant Meyer was right in this statement, then this report of the sales was admissible against the appellant. But if the latter was correct in denying the evidence of Meyer, then the report was not evidence against him. As the case was presented the jury could very well find that the appellant had not consented to or approved of the account presented, as that was stated in the evidence of Mr. Townsend. And if they had found that fact not to be proved, then the entire right of the plaintiff to recover this balance would stand upon the evidence of Meyer, denied as it was by the appellant. And in this state of the evidence he was entitled to have that question submitted to the jury.

And if they were satisfied that he did not acquiesce in or approve of the account, and did not authorize Meyer & Company to sell the oil, then he was entitled to a verdict in his favor, for there would be no proof in that state of the case establishing the balance claimed by the plaintiff as it was included in the verdict of the jury.

The judgment and order should, therefore, be reversed, and a new trial ordered, with costs to the appellant to abide the event. VAN BRUNT, P. J., and BRADY, J., concur.

THE MAYOR, ETC., OF NEW YORK, App'lt, v. THE COMMISSIONERS OF EMIGRATION, Resp'ts.

(Supreme Court, General Trm, First Department, Filed February 11, 1891.) 1. EMIGRATION COMMISSIONERS OF, NOT LIABLE TO CITY FOR CARE OF EMIGRANTS SUFFERING FROM CONTAGIOUS DISEASES.

No action can be maintained, in the present condition of state and national legislation, by the city of New York, against the commissioners of emigration, for the expenses of the city in caring for emigrants who arrive at its port suffering from contagious diseases.

2. SAME.

There being no funds in the hands of the commissioners for such a purpose, and no method of obtaining any except by favor of the secretary of the United States treasury, no ground of action is shown.

3. SAME-LAWS 1882, CH. 145.

Under the decision of the supreme court of the United States, Ch. 145, Laws of 1882, cannot be enforced, and no contract made thereunder would be valid.

APPEAL from an interlocutory judgment sustaining defendant's demurrer to the complaint herein.

The complaint alleges that it was the duty of the defendants to care for and maintain immigrants arriving at the port of New York suffering from small pox and other infectious, pestilential or contagious disease, or to provide for their care and maintenance for and during such times as might be necessary for the protection of the public health.

It is further alleged that certain immigrants suffering from small pox and other infectious, pestilential or contagious disease did arrive at the port of New York during certain times specified in a bill of particulars annexed to said complaint and made a part thereof, and that by reason of the neglect or refusal of said defendants to care for and maintain said immigrants arriving as aforesaid, or to provide for their care and maintenance, the plainiffs were compelled, in order to protect the public health, to care for and maintain, and did care for and maintain, in hospitals belonging to and supported to by said plaintiffs said immigrants arriving at the port of New York suffering from small pox and other infectious, pestilential or contagious diseases, and were compelled to render, and did render, work, labor and services in connection therewith, a bill of particu lars of which items of work, labor and services, and the dates thereto, is annexed to said complaint and forms a part thereof. N. Y. STATE REP., VOL. XXXVI. 91

That the fair and reasonable value of the work, labor and services rendered for six years last past amounts, in the aggregate, to $3,861; that no part of said sum has been paid, although payment has been duly demanded.

To the complaint a demurrer was interposed, as herein before stated.

The demurrer was sustained by Judge Ingraham, an order and interlocutory judgment was entered, from which this appeal is taken. Edward H. Hawke, Jr., for app'lt; I. H. Maynard, for resp'ts.

BRADY, J.-From May, 1847, to March, 1876, the legislature of this state endeavored to provide against the expense of caring for alien passengers arriving at this port from foreign countries; and although the history of that legislation might be interesting and instructive, it is not necessary to mention it in detail. The system established by it was put in operation and continued for many years, and indeed until the supreme court of the United States rendered a decision in the case of Henderson v. The Mayor, to be found reported, 92 U. S., 259, declaring such legislation unconstitutional and void. As a result of efforts made by the commissioners of emigration, who were impressed with the grave consequences which must ensue from that decision, the legislature on application, upon the 29th of April, 1876, adopted the following resolution:

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Resolved, That the commissioners of emigration are hereby instructed to call the attention of the congress of the United States to the present condition of the emigration laws, resulting from the decision of the supreme court of the United States, declaring the state laws on that subject unconstitutional and void, and to impress upon congress the necessity for speedy national legislation in regard thereto, and the said commissioners to take such steps as in their judgment may be proper to secure such legislation.'

And that was followed in August, 1882, by the passage of an act of congress to regulate immigration, which imposes upon the owners of steam or sailing vessels who shall bring passengers from a foreign port into a port of the United States a duty of fifty cents for every such passenger not a citizen. U. S. Stat. at Large, vol. 22, p. 214. This was declared to be a valid exercise of the power to regulate commerce with foreign nations. Head money Cases, 112 U. S., 580.

The act just mentioned imposes upon the secretary of the treasury the duty of superintending and of executing its provisions, with power to enter into contracts with state commissioners to take charge of the local affairs of emigrants in the ports within the state and to provide for the superintendence and relief of such emigrants therein landing as might fall into distress and need public aid. The purpose of the act, it was said in the Head money cases by the learned justice delivering the opinion, "was humane, highly beneficial to the poor and helpless immigrant and essential to the protection of the people in whose midst they were deposited."

In addition to this, the legislature of this state passed an act in

1882, chap. 145 Laws of that year, providing means for raising a fund to be used by the commissioners of emigration in caring for and maintaining alien passengers.

The act of congress, it may be observed here, provides for the distribution of the súms received under its provisions among the different states, declaring, however, that no greater sum shall be expended at any port than has been collected thereat.

The act of this state referred to is as follows:

"Section 1. In order to save the state from the expense of the inspection and care of alien passengers, the commissioners of emigration are hereby authorized to contract with the carriers of emigrants by vessel to the port of New York, for periods not exceeding five years at a time, to receive not less than fifty cents, nor more than one dollar for each alien passenger so brought for such inspection and care, which payments, when made, shall be in lieu of any tax by the state for the inspection and care of such passengers."

It will be observed that the commissioners of emigration were by the act authorized to contract with the carriers of emigrants by vessel to the port of New York for periods not exceeding five years at a time, to receive not less than fifty cents nor more than one dollar for each alien passenger so brought. But the difficulty with the beneficial use of the powers conferred by this act arises from the fact that it cannot be enforced in view of the decisions to which reference has been made, and by which the whole subject is declared to be solely within the jurisdiction of the United States in congress assembled.

The only fund, therefore, which is accessible is that which should be received from the secretary of the treasury in the distribution of the sums received under the act of Congress, passed in 1882, and as to which there is no allegation in the complaint. Nor is there any allegation that any contract had been made under the provisions of the act of 1882, passed by the legislature of this state, and, therefore, there is no existing fund out of which the defendants could make payment to the plaintiff for any expenses to which it has been subjected in the care of emigrants, and which should be reimbursed by the defendants, if they were in financial condition to do so. The remedy would seem to be (if such an application has not already been made) to require the board of emigration to apply for its proportion of the fund, to be distributed, as already stated, by the secretary of the treasury.

All the obligations imposed upon the defendants are necessarily based upon the proposition that the various acts of the legislature referred to conferring the power to raise a fund necessary for the purpose would be operative, and in that manner provide for any contingent expenses growing out of the subject.

But this, as we have seen, has not been verified, and the defendants have, therefore, no fund responsive to the plaintiff's claim, and no power to gather it, except upon application to the secretary of the treasury, which might or might not be successful. The judgment should, therefore, be affirmed.

VAN BRUNT, P. J., and DANIELS, J., concur.