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Rankin v. City of New York

Supreme Court of New York, Appellate Division

July 7, 1911

WILLIAM RANKIN, Plaintiff,
v.
THE CITY OF NEW YORK, Defendant.

Page 839

SUBMISSION of a controversy upon an agreed statement of facts pursuant to section 1279 of the Code of Civil Procedure.

COUNSEL

John Patterson, for the plaintiff.

Curtis A. Peters, for the defendant.

OPINION

SCOTT, J.:

In this controversy submitted upon an agreed case the plaintiff, owner of a lot and building in the city of New York, now or formerly known as the Hotel Gerard, seeks a cancellation of a certain charge of $1,200 standing as an apparent lien upon said property upon the books of the department of water supply, gas and electricity, upon the assessment roll of the city of New York and upon the books of the collector of assessments and arrears.

In the year 1894 plaintiff and one Alexander Moore, who then owned said premises, leased the same to one William B. Gerard for a term extending to January 1, 1906. The lease, which was in writing, contained a covenant on the part of the lessee to pay the regular water rent which might be assessed upon the property. Caroline B. Gerard executed a written guaranty that the lessee would fulfill and perform the covenants in the lease by him to be performed, and covenanted and agreed on her own part that she would perform any of said covenants which the lessee might fail to perform. As collateral security for this agreement the said Caroline B. Gerard deposited with plaintiff the sum of $20,000 in cash. On March 28, 1894, said Alexander Moore conveyed to plaintiff all his interest in said premises and said lease, and plaintiff has ever since been the sole owner thereof. When the lease was made in February, 1894, no water meter had been put in the building, but one was installed on June 28, 1894. On March 14, 1899, plaintiff and said Caroline B. Gerard entered into an agreement in writing wherein plaintiff agreed that the interest of William B. Gerard in said lease be assigned to Caroline B. Gerard, and

Page 840

she on her part agreed to carry out all the terms of the contract to be performed by said William B. Gerard, and further that no obligation then existing on her part to said plaintiff should be affected. On January 9, 1900, Joseph P. Hamblen, Jr., and Arthur J. Hamblen became the assignees of said lease, and the lessees thereunder, and the aforesaid guaranty of said Caroline B. Gerard and the security for the performance thereof were continued. A tripartite agreement was entered into between plaintiff, the Hamblens and said Caroline B. Gerard, by which said Joseph P. Hamblen, Jr., and Arthur J. Hamblen agreed to pay all water charges and fulfill all the terms and conditions of the lease, and Caroline B. Gerard agreed that plaintiff should lose no rights which he then had against her or her property, she remaining liable for all obligations under said lease, provided they were not discharged by the assignees thereof. On August 27, 1901, there was due and owing to the city of New York for water delivered at the premises between June 28, 1900, and July 23, 1901, the sum of $1,487.90, said water having been measured by the water meter and charged for at the rate of $1 per 1,000 cubic feet. Plaintiff was constantly pressing the tenants to pay the water bills and on August 27, 1901, went to the hotel to urge the lessee to pay the outstanding charges for water. On said 27th day of August, 1901, Joseph P. Hamblen, Jr., one of the lessees, drew a check for $1,200 and gave it to one Boak, since dead, who was his confidential man. Boak took $287.90 from the cash drawer and went to the water department to pay the bills. On said August 27, 1901, there was paid into the cashier's window of the water department only the sum of $287.90 on account of water bills made out to Hamblen and receipted bills to that amount were delivered to the person paying in the money. By the fraudulent alteration of the books in the water department it was made to appear that the entire sum due, amounting to $1,487.90, had been paid in, and that all charges against the property for water had been paid and satisfied, and receipted bills purporting to show that fact were exhibited to plaintiff. The manner in which this fraud was perpetrated is described in the agreed statement of facts: 'XI. The Water Ledger of the Department of Water Supply, Gas and Electricity contains

Page 841

the accounts of all persons purchasing water from the City, which is measured through meters. It is to this book that reference is made to determine how much, if anything, is owing to the City for water supplied. The charges are posted from the inspector's book into this ledger. The amount of payment is not posted, but the Clerk writes opposite the charge the word 'paid' and the date of payment. One of the clerks whose duty it was to make entries in this ledger and make bills to consumers was Frederick W. Wiegele.

'XII. On August 28th, 1901, the day following the payment set forth in paragraph X, the said payment of $287.90 was entered in the appropriate meter ledger of the Water Department, said ledger showing at that time that only the sum of $287.90 was due for water furnished between June 28, 1900, and July 23, 1901, the entries marked 'paid' being as follows:

Sec.  

 Vol.  

 Fol.

4,  

 1,  

 90 .... $103 30

4,  

 1,  

 89 ..... 115 80

4,  

 1,  

 90 ...... 39 00

4,  

 1,  

 89 ...... 29 80


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