the convention at once proceeded to another vote, in which all the members took part, resulting in the election of the respondent, and he was accordingly declared to be elected. It was within the lawful power of the convention, at the same meeting, and before the result of the election had been declared, to treat the proceedings already had as irregular and invalid, and to vote anew. The petitioner, therefore, acquired no right to the office. State v. Foster, 2 Halsted, 101. As this view is decisive of the case it is unnecessary to consider the other objections to the issue of a writ of mandamus?

This case is another strikingly like the one in question. But it is said, by the majority of the court, that the first vote taken was tainted with fraud or error, inasmuch as there was one ballot more cast than there were voters, and the convention, therefore, had the right to consider the ballot void, and to so declare. It does not appear whether the extra ballot was cast in fraud or by mistake, but whichever way cast, it did not and could not change the result. The petitioner had at least sixteen honest and valid votes to fourteen for the respondent, and one scattering. Why was he not elected? Is it so that the sixteen honest voters must be deprived of their choice simply because there was one dishonest or careless voter? On the same principle, if in a given case there were one thousand ballots cast—eight hundred of them for A B and two hundred of them for C D—the eight hundred would be deprived of their choice if it should be found that there was one more ballot cast than there were voters to cast them. Can this be so? McCrary (on Elections, sec. 444) says: "It is not a valid objection to an election that illegal votes were received if they did not change the majority." See also Trustees v. Gibbs, 2 Cush. 39. And furthermore, if the convention in this case had the right to declare the ballot that had been first taken void simply because there was fraud or mistake to the extent of one vote, how much more in the case under consideration had the convention the right to set the ballot aside on the ground that the members cast their ballots believing that the vote would not be final, but that a resolution in addition to the vote would be necessary to be passed declaring the person elected who should receive a majority of the ballots before an election would be made, as a majority of the court say may have been the case. A mistake of this character was not the mistake alluded to in the resolution that was passed, and in the rejoinder to which the demurrer applied. That mistake had reference to certain members voting by mistake for the relator when they intended to vote for the defendant. But the court in Massachusetts put the case upon no such ground. The point is not even suggested in the opinion.

I think therefore that, even if the relator would have been elected by the ballot that was taken if nothing more had occurred, the convention had the right to nullify the ballot and elect the defendant.

Hobbs

v.
City Of Yonkers.

(Advance Case, New York. March 23, 1886.)

The treasurer of a municipal corporation may agree with the corporation to accept a less sum as sftlary than that prescribed by law, and when, at the expiration of his term, he renders a final account, which is accepted, and then turns over the balance of the moneys in his hands belonging to the corporation to his successor, retaining only the amount agreed to be accepted as salary, he is bound by such settlement as upon an account stated, and the settlement cannot afterward be disturbed except by an action in equity showing fraud or mistake.

Appeal from a judgment of the general term of the supreme court, second department, affirming a judgment of the trial court, dismissing the plaintiff's complaint.

Matt. H. Ellis for appellant.

Tlieodore Fitch for respondent.

Miller, J.—On the i5th of June, 1877, the common council of the city of Yonkers passed a resolution consenting to and advising the appointment of the plaintiff as treasurer of Facts. said city. At the suggestion of some of the mem

bers of the common council, one of their number presented to the plaintiff a paper stating, in substance, that if the plaintiff was confirmed as treasurer, he agreed to pay into the city treasury all fees and percentages received by him as such treasurer, in excess of $2000 per annum. The plaintiff signed the paper, which was returned to the common council and ordered to be placed on file, and thereupon the mayor appointed the plaintiff as city treasurer. On the 9th of July, 1877, the plaintiff duly qualified as said city treasurer and gave the bonds required by law, and continued to act as such treasurer until November 29, 1881, and until his successor was appointed and qualified. The appointment of the plaintiff was made in pursuance of chapter 35, Laws of 1873, which authorized the mayor to make the appointment with the approval of the common council. At this time the compensation fixed by law was one per cent on all payments made by him. By chapter 119, Laws of 1878, the city charter was amended, and, among other things, the common council was authorized to fix and limit the amount of compensation of the city treasurer, at a sum not exceeding $2000 a year, on or before the commencement of his term of service, and the amount of fees and percentages received by him in any one year in excess of the sum so fixed and limited by the common council shall be retained to the use of the city.

The statute also provided that the term of the city treasurer should commence on the first Tuesday of June, 1878, and at any time thereafter the common council had the right to fix the salary of the plaintiff at $2000 a year. After the lastnamed time the common council allowed the plaintiff to continue in office over three years and until his successor was appointed, without fixing his salary, as they had a right to do, evidently relying upon his agreement to serve for $2000 a year. But for that agreement it is fair to assume they would have adopted a resolution fixing the salary. The plaintiff having assented to the arrangement, the amount named in the agreement may be considered as the salary to which he was entitled, the same as if it had been fixed by the common council and he is estopped from claiming that the salary was not $2000 for the time after the first Tuesday of June, 1878. Under the circumstances it may fairly be assumed that he acted as if his salary had been fixed at that sum. No point was made on the trial that the plaintiff could, in any event, have recovered more than $2000 for the first year ending on the first Tuesday of June, 1878, and no distinction was made between what salary accrued before and what after that date.

When the plaintiff was appointed he was entitled to a percentage on all moneys received by him, and no authority existed in the common council to change the compensation thus fixed, and the writing signed by the plaintiff was, of itself, inoperative for any such purpose. Nor was any sum afterward fixed by action of the common council or any new appointment of the plaintiff made. He remained in office until his successor was appointed, discharging the duties as he had previously done, and receiving a compensation of $2000 a year therefor. Each year he rendered an account and paid all his receipts into the city treasury, except that he retained the sum of $2000 annually, which was allowed him for his compensation. Upon this basis his accounts were adjusted, and during the whole of his term as city treasurer he made no claim for any further compensation than the amount which had been agreed upon.

The agreement was a voluntary one, and there is no sufficient ground for claiming that any fraud or deceit was Agreement practised by means of which the plaintiff was inTolustabv. duced to forego his right to the fuJl compensation provided by law for his services, and to accept the amount fixed in lieu thereof. The agreement thus entered into was fully performed and executed. It was not an executory agreement against which a party could set up any legal defence and justify his refusal to perform the same. All of its conditions had been carried into effect and executed before this action was commenced, with the consent and approval of all the parties. As we have seen, the plaintiff had settlements with the common council annually upon the basis of this agreement, assuming that it was valid and effectual, and thus he precluded himself from repudiating the same.

Conceding that the agreement was illegal and invalid, the plaintiff had a perfect right to release the city from all claims he had for services beyond the amount which he

KKrnmm*3- had agreed to accept. Had he executed an instru

FINAL ACCOUNT. . i«rtirn

ment to thaj; effect purporting to be in full of all demands on account of his fees, no serious question could arise that it would be effectual for such a purpose, and that he would preclude himself from asserting any further right to compensation. He has substantially and really by his conduct in the transaction of the business done all this, and by his repeated settlements, in which he has accepted the compensation agreed upon, virtually discharged the defendant from any further liability. These accounts, stated and rendered to the common council and assented to by them as correct, are an effectual bar to any recovery in this action. At the close of his term of office he rendered his final account, and at the end thereof accepted a receipt from his successor to the effect that he had paid over to him several thousand dollars belonging to the city. These annual accounts which were presented by the plaintiff to the common council and accepted by them as correct contained the elements of accounts stated, which are equivalent to an acknowledgment that he has received full compensation for his services, and to a release for any further claim on account thereof. Such an account stated cannot be disturbed except by an action in equity for that purpose, showing that the party has been misled by fraud, mistake, or manifest error. This is not established, and there is no valid ground for setting aside the settlements which have been made between the parties.

The counsel for the appellant relies upon certain cases decided by this court, to establish the principle that an officer of a municipal corporation cannot be compelled to take less compensation for his services than that fixed by statute, viz., People, ex rel. Satterlee, v. Bd. of Police, 75 N. Y. 38; People, ex rel. Ryan, v. French, 91 Id. 265; Kehn v. State, 93 Id. 291.

These cases are clearly distinguishable from the one now considered. The plaintiff here received into his hands sufficient to pay the amount of fees to which he was entitled,.CA8E9 distis •which were fixed by law, and voluntarily paid the OIIS"EDsame over to the city less the amount agreed upon. He made repeated annual reports, each one of which was equivalent to an account stated, and finally he made a settlement of his entire claim by accepting a receipt for the balance in his hands, thus carrying into effect the agreement he had made, and virtually releasing the city from any additional or further claim. He has thus, by his own acts, estopped himself from claiming the benefit of the principle decided in the cases

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