Read v. . City of Buffalo

The appeal book before us contains no case. We have only the pleadings, the findings, and conclusions of the judge, the defendant's exceptions to these findings, and the judgment.

The first exception is to the conclusion of the judge that the plaintiff is entitled to judgment for the sum of $383.80 and costs; the second and only other one is that from the facts found the plaintiff was not entitled to judgment and the judgment should have been for the defendant. It is doubtful whether these exceptions raise any other question for our review, than the single one whether the plaintiff is entitled to judgment for any sum whatever. If so, we do not think they can be sustained.

As to the principal sum mentioned in the orders, under the charter of the defendant its relation to the plaintiff was that of debtor to creditor, and assuming that the defendant offered to pay the amount actually due, that does not extinguish the debt. It may be peculiarly inconvenient for a municipal corporation to seek out and pay its creditor, but we know of no principle of law which permits it, upon this ground, to set up in bar of a debt due from it, that it was once willing, and offered to pay it.

If however the question as to the liability of the defendant for the interest, subsequent to August, 1872, is before us, I am still of opinion that the judgment below is right, and should be affirmed.

The orders are evidences of indebtedness to the payee thereof, payable when collected from assessments for a local improvement. There is nothing contained in them limiting the interest, either as to its commencement or duration, to the time when the funds shall have been collected and ready for the payee. On the contrary, upon their face they bear interest in any event from three months after their date. Nor can it be justly said that because the defendant is in no default after August 12, 1877, when it was ready to pay the orders, therefore it is not liable for subsequent interest. The same is true in the same sense as to any depositary of funds, who has issued a certificate therefor,expressly bearing interest. He may be ready at all times to pay the certificate when demanded, but this fact cannot relieve him from the obligation to pay interest. Nor, I apprehend, would it make any difference with the extent of this obligation, that the principal sum named in his certificate, although bearing interest from a fixed day, was not payable until he had realized the amount from a particular fund.

The refusal of the plaintiff to accept the offer of the defendant to pay the principal sum and interest thereon up to August, 1872, was therefore, at the time he made his demand in June, 1876, justifiable.

It seems almost unnecessary to say, that the resolution of the common council, and the publication by the treasurer of the defendant of the notice in the official city paper that, after a certain date, interest on these orders would cease, did not, in the absence of any proof that such notices ever came to his knowledge, affect the rights of the plaintiff.

The statute of 1872 (Laws of 1872, chap. 828, § 9) authorizing the defendant's treasurer to stop interest by giving notice in the official paper, has no application to the orders sued upon by the plaintiff. It was passed long after these orders were issued, and in the hands of the plaintiff's intestate, or her assignor. It provided a different plan for assessing and collecting taxes for local improvements, making them payable in a different manner and requiring the warrants for the work to be drawn in a different form and payable on a fixed day. Upon well settled principles of statutory interpretation the provisions as to stopping interest by notice, must be held prospective and solely applicable to the new warrants or orders thereafter issued.

The judgment must be affirmed.

All concur, except MILLER and EARL, JJ., absent.

Judgment affirmed.