New York Common Pleas, December, 1895. [Vol. 15. The defendant was allowed as an offset, or counterclaim, the amount of his deposit in the bank, but without interest. Interest was disallowed on the ground that until demand, or actual insolvency of the bank, the deposit was not due and payable and interest did not run upon the claim. Setoff may be allowed as against a temporary receiver on application to the court (People v. St. Nicholas Bank, 76 Hun, 522), and such application may be deemed to have been made at the time of the service of the answer setting up the counterclaim; but as the plaintiff's deposit in the bank did not bear interest there seems to be no ground for requiring the receiver to pay interest in the absence of proof that he had earned any while the money remained in his hands. Judgment and order appealed from must be affirmed, with costs. BOOKSTAVER and BISCHOFF, JJ., concur. BARTHOLEMY J. OLIFIERS, Appellant, v. PERRY BELMONT et al., Respondents. (New York Common Pleas - General Term, December, 1895.) 1. CONTRACT-PUBLIC OFFICER NOT PERSONALLY LIABLE ON CONTRACT MADE BEYOND HIS POWER, IN THE ABSENCE OF DECEIT. A person acting under color of authority as a public officer cannot be held personally liable for damages resulting to one who accepted a contract proposed by such person in the absence of deceit, where, through the mistake of the latter as to his powers, the municipality failed to become bound. 2. COSTS-SEPARATE BILLS. Separate bills of costs may properly be granted to the successful defendants where they have appeared by separate attorneys and their liability, if any, would have been several. APPEAL from interlocutory judgments entered upon orders sustaining demurrers to the complaint, such demurrers having been interposed severally by the defendants Belmont and Chandler. Misc.] New York Common Pleas, December, 1895. John Brooks Leavitt, for appellant. John M. Bowers and Charles N. Harris, for respondent Belmont. H. V. N. Philip, for respondent Chandler. BISCHOFF, J. As we view this case there is little which may be added to the opinion delivered at Special Term upon the questions raised by the demurrers. The main and vital question was whether an individual acting under color of right as a public officer could be held personally to an action for damages resulting to a party accepting a contract proposed by such assumed officer, in the absence of any element of deceit, where, through the latter's mistake as to his powers, the corporate body failed to become bound. The law is well settled that in such a case the principles governing the liability of a private agent do not apply, the primary reason being that the individual contracting for his personal gain should be required to determine the actual scope of the authority assumed by the officer, since the restrictions upon the authority are necessarily matter of publicity, and the rule is founded upon legitimate grounds of public policy. The plaintiff urges that these demurrants, had they acted in quorum of their committee, would then, and then only, have brought themselves within this rule, but as to that it may be said that, under the public statute in question, whether these individuals acted in quorum or not the municipality, the ostensible principal, could not have been bound. Since the action taken by the defendants was, in so far as appears, under an honest mistake as to their public capacity, without an intention that there should be any personal liability, a cause of action is no more apparent on this ground. The complaint is not framed as tendering issues ex delicto. An appeal from the orders made at Special Term allowing a bill of costs in the case of each demurrant is also before us, but in view of the nature of the action, wherein such defend ants would, if liable at all, be liable severally, the determina New York Common Pleas, December, 1895. [Vol. 15 tion in this regard as to their diversity of interest was sufficiently justified, and the right to costs, since there was an appearance by separate attorneys, was properly upheld. Delaware, L. & W. R. R. Co. v. Burkard, 40 Hun, 625. The judgments and orders appealed from are to be affirmed, with costs, with the usual leave as to amendment of the pleading. DALY, Ch. J., and PRYOR, J., concur. Judgments and orders affirmed, with costs, with the usual leave as to amendment. JOHN MURPHY, Respondent, v. ROBERT MCWILLIAM et al., Appellants. (New York Common Pleas General Term, December, 1895.) NEGLIGENCE - EVIDENCE. In an action for personal injuries sustained through the fall of a derrick used by defendants in hoisting stone for a building upon which plaintiff was employed under another contractor, evidence as to the weight of a stone which appeared upon a diagram of the place made after the accident, and which was not shown to be the one which was being hoisted at that time, and proof that the derrick was insufficient to support a stone of that weight were admitted under objection. Held, that the admission of such evidence was prejudicial error. APPEAL from judgment on verdict and from an order denying a motion for a new trial. Action for damages for personal injuries sustained through the defendants' negligence. Abm. I. Elkus, for appellants. Thos. M. North, for respondent. BISCHOFF, J. For error in the reception of certain evidence which might very clearly have prejudiced the appellants, we are constrained to reverse this judgment. The plaintiff sought to charge the defendants with an injury sustained by him through the fall of a derrick used by them Misc.] New York Common Pleas, December, 1895. in hoisting and placing stone for a certain building, upon the erection of which building plaintiff was employed, but by another contractor and in a different class of work. In support of his case the plaintiff offered in evidence a diagram, made a few days after the accident, showing the position of a certain stone upon the scene of operations, in the course of the hoisting of which it was claimed that the derrick gave way, and the dimensions of this stone, as it appeared upon the diagram, were shown. Under objection and exception taken by the appellants upon the ground that the stone in question had not been proven to be that actually in process of hoisting at the time of the accident, a witness was permitted to testify that such a stone weighed eight and one-half tons, and thereupon an expert was called by the plaintiff who gave evidence, still under like objection and exception, that a derrick such as that used by the defendant was insufficient in strength to support a stone of that weight. At no time, although counsel had promised to connect it, was any foundation for this evidence given during the trial, and while it may be, as claimed, that apart from the plaintiff's proof the jury might have found an inference of negligence from the defendants' own evidence, they were certainly not bound to do so, since the matter was quite open to question, and we cannot say that this unauthorized form of proof, as given by the plaintiff, did not have an effect upon the verdict. The point was fully raised by the defendants when the plaintiff rested, and although a nonsuit could not, upon the evidence, have well been directed at the close of the whole case, the error in the reception of the testimony noted was at no time cured, nor were the jury instructed to disregard such testimony. Judgment reversed and new trial ordered, with costs to the appellants to abide the event. DALY, Ch. J., and PRYOR, J., concur. Judgment reversed and new trial ordered, with costs to appellants to abide event. New York Common Pleas, December, 1895. [Vol. 15. JULIUS FREUDENHEIM et al., Appellants, v. JULIA RADUZINER, Respondent. (New York Common Pleas - General Term, December, 1895.) 1. ACTIONS-SEVERANCE-EFFECT OF OFFER OF JUDGMENT. The entry of judgment upon an offer merges the entire cause of action set forth in the complaint, and determines the action. 2. SAME-WAIVER OF EFFECT OF JUDGMENT - EVIDENCE. The effect of such judgment is waived, however, where the parties proceed to a trial of the remaining issues without objection, and in such case the judgment is not admissible in bar of the action. APPEAL from a judgment of the General Term of the City Court of New York, which affirmed a judgment entered upon a verdict directed by the trial court in favor of the defendant. Wales F. Severance, for appellants. A. H. Berrick, for respondent. BISCHOFF, J. The action was to recover for goods sold and delivered, to which an answer was interposed which admitted a certain amount as due and owing and denied any further indebtedness. With the answer the defendant caused to be served an offer to allow judgment to be taken against her for a stated amount, with interest and costs. Code Civ. Proc. § 738. Thereupon the plaintiffs secured an order, upon their motion, which provided for a severance of the action, permitted judgment to be entered severally for the amount admitted by the answer to be due and owing, and continued the action for the residue of the plaintiffs' claim. Code Civ. Proc. § 511. On the next succeeding day the plaintiffs caused judgment to be entered upon the defendant's offer and their acceptance thereof. Later the supposed cause was called for trial, and the parties proceeded to litigate the issues. The plaintiffs established a prima facie right to recover the amount for which judgment was demanded in the complaint, and the defendant, against the plaintiffs' objection that the defense of |