Misc.] Court of General Sessions, New York County, December, 1895. with him in his public character means to rely upon his individual responsibility." In the case of Hall v. Lauderdale, 46 N. Y. 70, the rule was laid down by the Court of Appeals that "An agent acting within the scope of his authority and disclosing his agency will not be personally bound unless upon clear and explicit evidence of such an intention. The rule is still stronger in the case of a public agent." In the light, therefore, of the undisputed facts of this case, and the rule of law governing it, it must be held that the judgment rendered against the two appellants was and is wrong and must be reversed, with costs, and an order is directed to be entered accordingly. Judgment reversed, with costs. THE PEOPLE, Respondents, v. CARLO CASEGeanda, Appellant. (Court of General Sessions -New York County, December, 1895.) 1. MUNICIPAL ORDINANCES PROOF OF. A municipal ordinance is not a statute of which judicial notice must be taken; but it must be proven in the manner prescribed by law, and the burden of proof rests on the prosecution. 2. SAME VIOLATION. On a prosecution for violation of a city ordinance, the existence of the ordinance must be proved, and also the fact constituting the violation. APPEAL from conviction before a city magistrate of a violation of a city ordinance. John R. Fellows, District Attorney, for respondents. GOFF, R. Carlo Casegeanda, the defendant, was, by the city magistrate, adjudged guilty of a violation of section 33 of the corporation ordinances of 1880, in that he obstructed the sidewalk with a boot-blacking stand; and from such judg ment and conviction he appeals. Court of General Sessions, New York County, December, 1895. [Vol. 15, Several grounds of error are assigned by the appellant, but only one of them is necessary to a consideration of the case as presented by the return. The complainant, as captain of police, was thus examined: "Q. Are you familiar with section 33 of the city ordinances? A. I have a copy here of the amended ordinances of 1884. [Copy of ordinances offered in evidence. Objected to on the ground that the ordinance now offered in evidence is not properly certified, as required by section 941 of the Code of Civil Procedure. Objection overruled. Exception.]" If there was something denominated an ordinance offered in evidence, the return does not show what the ordinance was; and if the defendant was convicted of a misdemeanor for violating an ordinance, and there was no evidence of the declarations or the mandates or the prohibitions of that ordinance, of what could he be convicted of violating? An ordinance is not a statute, of which judicial notice must be taken. It must be proven in the manner prescribed by law, and the burden of its proof rests with the prosecution, the same as the proof of any other fact necessary to sustain the prosecution. Two facts are necessary to be proven in such a prosecution : First, the fact of the existence of the ordinance claimed to have been violated; and, second, the fact constituting the violation. Section 941 of the Code of Civil Procedure prescribes that an ordinance may be read in evidence from a copy thereof, certified by the clerk of the common council, or from a volume printed by the authority of the common council. The power of the common council to enact ordinances is limited by the authority derived from the legislature, and in a prosecution for the violation of a city ordinance every fact necessary must be affirmatively proven and established by the record. There is no legal evidence upon which this conviction can be sustained. Judgment reversed. Misc.] Supreme Court, December, 1895. CATHARINE A. HALLAHAN, as Administratrix, Plaintiff, v. GEORGE C. WEBBER and LUCIEN S. BAYLISS, as Assignee, Defendants. (Supreme Court - New York Special Term, December, 1895.) 1. SALE - RESCISSION FOR FRAUD. The right of a vendor to rescind on account of fraud inducing the sale is not lost by failure to exercise it immediately upon discovery of the facts, where the delay is not unreasonable and the rights of others have not been jeopardized thereby. 2. SAME. The mere fact that the vendor attended a meeting of creditors of the vendee and objected to an offer of compromise, after learning of the facts constituting the fraud, and subsequently called upon the vendee's assignee and inquired as to the estate and the probability of a dividend, is not sufficient to show an affirmance of the sale which would preclude a rescission. 3. SAME SALE BY ASSIGNEE. Under such circumstances, where no further action has been taken by the vendor, he may rescind after a sale of the goods by the assignee and recover the proceeds of the sale of the goods, less a pro rata proportion of the expense of such sale. ACTION to recover the proceeds of property alleged to have been purchased from plaintiff by means of fraudulent representations. Theodore H. Friend, for plaintiff. Benjamin II. Bayliss, for defendants. BEEKMAN, J. I think it quite clear that the representations which were made by the defendant Webber to the plaintiff in order to induce the sale of the property in question were false, and that the plaintiff would not have parted with her goods if she had not relied upon them and believed them to be true. It is perfectly plain that at the time of the purchase by him from the plaintiff, Webber's indebtedness largely exceeded his assets, and that he was in failing circumstances. His statements to the plaintiff, however, were of such a character as to justify a belief on her part that he was entirely Supreme Court, December, 1895. [Vol. 15. solvent, was doing a prosperous business, and would be able to meet the notes, which he induced her to take for the property, upon their maturity. The evidence was at least abundantly sufficient to justify a rescission of the contract. (Hammond v. Pennock, 61 N. Y. 145.) same. The only point in the case which really invites discussion is the question whether the plaintiff, with knowledge of the fraud which had been practiced upon her, acquiesced in the transaction, and thereby made her election not to rescind the The facts relied upon by the defendant in support of the affirmative of this proposition are that, on April 9, 1894, some seventeen days after he had made a general assignment for the benefit of his creditors, he called a creditors' meeting, at which the plaintiff was present. A proposition was submitted on the part of the defendant Webber for a settlement of his indebtedness on the basis of fifty cents on the dollar, for which his notes were to be given. The plaintiff objected to this, and the offer received no further consideration. Nothing further appears to have been said by her at this meeting, but after it was over, according to the testimony of one of the creditors, the plaintiff stated to him "that she could break up this whole assignment, in her opinion, if she desired to do so. She said she did not know whether she should or not." It also appears that at some time between the last-mentioned date and the tenth day of July following the plaintiff called at the office of the counsel of the assignee for the purpose of inquiring how the affairs of the assigned estate stood, and what dividend or settlement might be expected, and was informed by the counsel that he did not know. Nothing further seems to have taken place at the interview beyond complaints on the part of the plaintiff that the defendant Webber had treated her badly in the matter. It also appears that, at the meeting of the creditors above referred to, it was stated by the assignee that unless some arrangement were made, the assigned property would be sold at public auction very shortly. On the 28th day of April, 1894, such a sale was had of the assigned property, including that which had been Misc.] Supreme Court, December, 1895. sold by the plaintiff to said defendant Webber. The usual notices required by law were given, but the plaintiff claims that she was absent from the city at the time, and had no actual knowledge of the fact. On the tenth day of July the counsel for the plaintiff notified the defendants that the plaintiff elected to rescind the sale, and at the same time he tendered the notes which had been given to her for the purchase money, and demanded the return of the property, which was refused, and thereupon this action was brought. It is contended on the part of the defendants that all of these acts on the part of the plaintiff, and the lapse of time between the discovery by her of the alleged fraud and the date when she attempted to rescind the sale, evidenced an acquiescence on her part in the sale which was, in itself, an election not to rescind. The law is well settled that where a contract is tainted with fraud in its inception, the defrauded party, upon the discovery of the deceit, has an election either to stand on the contract or to rescind it, and that such election must be exercised within a reasonable time thereafter. It is true that in many cases it is stated that the election must be made promptly, or as soon as practicable after the discovery of the fraud. The reason for such a rule is that others shall not be prejudiced or misled by the appearance of ownership with which the vendor has invested the other party, when a prompt disaffirmance of the sale upon discovery of the fraud affecting it would have prevented any such injury. Whether or not a rescission for fraud has been prompt and timely must, therefore, be determined in the light of the reason which gives life to the rule, and in each case will depend upon the peculiar facts and circumstances of such case; and where it is apparent that the delay has not been unreasonable, and that the rights of others. have not been affected or jeopardized by it, it cannot be said. that the right to rescind is gone because the person having it did not exercise it immediately upon his discovery of the facts. upon which the right rested. |