Paul v. The Mayor, Aldermen and Commonalty of the City of New York. warrant by the officer, or to justify a person in giving the offender in charge, and this, whether the act be regarded as a breach of the peace, or as conduct tending to a breach of the peace. (Boyleston v. Kerr, 2 Daly, 220; Willis v. Warren, 1 Hilt. 590.) Upon the state of the evidence at the close of the plaintiff's case sufficient did not appear to justify an arrest without warrant, under the authority of the cases cited; and the defendant should have been called upon to show that the acts alleged by him to constitute a violation of the law were committed in the presence of the officer making the arrest. The exception to the dismissal of the complaint is sustained, and a new trial is ordered, with costs to abide the event. CHARLES P. DALY Ch. J., and JOSEPH F. DALY, J., concurred. New trial ordered, with costs to abide event. JOHN PAUL, Respondent, against THE MAYOR, ALDERMEN AND COMMONALTY OF THE CITY OF NEW YORK, Appellants. (Decided April 2d, 1877.) The Corporation of the city of New York is not liable to pay interest on interestbearing claims against it for the period between the time when by their terms they become due and the time when payment is demanded; and the rule as to a private debtor, that to stop interest he must seek and make tender to his creditor, does not apply to a municipality APPEAL from an order made at special term by Judge JOSEPH F. DALY, denying a motion made by the defendant to vacate or reduce the amount of a judgment entered against it. The facts are stated in the opinion. Wm. C. Whitney and D. J. Dean, for appellants. John B. Leavitt, for respondent. Paul v. The Mayor, Aldermen and Commonalty of the City of New York. VAN HOESEN, J.-This is an appeal from an order denying a motion to vacate a judgment, or to reduce it in amount. The judgment was by default, and was entered in an action. brought against the city of New York for the recovery of the amount due upon a certificate of indebtedness, issued by the town of Morrisania, which, by act of the Legislature, has become part of the city of New York. The certificate bears date June 14, 1873, and promises the payment of three hundred dollars, with interest from date. The stipulated time of payment is when the assessment for grading Concord avenue shall have been collected, or at all events, one year from the date of the certificate. On the 14th day of June, 1874, one year after its date, the certificate, principal and interest, was due and payable. As to this there is no dispute. Before the arrival of the day last mentioned, all the liabilities of the town of Morrisania became, by legislative act, liabilities of the city of New York. The plaintiff refrained from demanding payment from the city until the 30th day of September, 1876, and the question to be decided is, whether the city is liable to pay interest on interest-bearing claims for the period between the time of their maturing and the time when payment is demanded? In other words, may the holder of a city obligation, which by its terms bears interest, withhold the presentation of the obligation when it becomes due and payable, and thereby compel the city to pay him interest for a time limited only by his own convenience? If the city is to be regarded as a private individual, the answer must be in the affirmative, but if it is to be considered as a part of the government established by the people for the administration of their public affairs, the answer must be in the negative. There is a reason for the difference between the rule applicable to a private person and that applicable to a State. A private debtor is bound to seek out his creditor, and to tender the amount of the debt. If he performs that duty, he may, at any time after the nfaturity of the debt, stop the accruing of interest. The State, however, is not bound to seek out its creditor. It may lawfully wait till he presents himself and his claim. (People v. Canal Commissioners, 5 Denio, 404, 405.) It is unnecessary to repeat VOL. VII.-10 Paul v. The Mayor, Aldermen and Commonalty of the City of New York. the reasons stated by the court in the case just cited why the State should not be compelled to seek out its creditors. Those reasons apply to the city of New York with as much force as to the State. The magnitude and extent of the business of the various departments of the city, the complex system of government provided by the legislature, the independence and the powers of the various boards of commissioners, and the absolute necessity for checks and safeguards against fraudulent claims, render it impossible for the city to search out its creditors, and to tender each man, wherever he may be, the amount of his demand. Fortunately, the Court of Appeals has already spoken on the subject, and has said in the case of Taylor v. The Mayor, &c. (unreported): "The city government is not required to seek out those who have claims against it, and pay them even when due." As I have already said, the duty of a private person to pay interest on a past due liquidated demand, followed from his neglect to relieve himself from the burden by seeking out his creditor. If the duty to seek out the creditor does not exist, the debtor is in no default, and cannot be called upon to pay interest until the creditor makes demand upon him. It follows, therefore, that the plaintiff should have presented his claim at the time it became due and payable, namely, on the 14th day of June, 1874, and that he is not entitled to interest between that date and the 30th day of September, 1876, the day he demanded payment of the Comptroller. The order appealed from should be reversed with costs, and the judgment should be reduced by deducting therefrom the sum of forty-eight dollars. CHARLES P. DALY, Ch. J., concurred. Order reversed, and ordered that judgment be reduced. Easton v. Malavazi. CHARLES A. EASTON et al. Appellants, against NICHOLAS MALAVAZI, Respondent. (Decided April 2d, 1877.) Where the affidavits upon which a warrant of attachment is granted state facts and circumstances which have a legal tendency to make out the essential statutory facts required to be shown, and fairly call upon the magistrate to whom the application for the warrant is made to exercise his judgment on the sufficiency of the evidence, this is enough to give the magistrate jurisdiction to issue the warrant and to sustain it in case it is attacked on the ground that the facts stated do not make a case within the statute. The rule is the same whether the warrant is attacked in a collateral proceeding as being void for want of jurisdiction, or whether a direct application to set it aside is made in the action in which it was granted. Where the essential statutory fact to be shown was concealment with intent to avoid service of a summons;-Held, that affidavits alleging absence of the defendant from his usual place of business and resort soon after the debt had been demanded of him, coupled with his refusal, when asked by plaintiff to give his address or residence, contained enough to fairly call upon the magistrate for the exercise of his judgment upon the evidence. APPEAL from an order made at special term by Judge JOSEPH F. DALY, granting a motion to vacate an attach ment. The motion was made on the papers upon which the warrant of attachment was granted. The facts are stated in the opinion. Sherwood & Howland, for appellants. Geo. C. Holt, for respondent. CHARLES P. DALY, Chief Justice.-The attachment was granted upon what was deemed by the judge who made the order satisfactory evidence, by affidavit that the defendant kept himself concealed in the city, with intent to avoid service of a summons, and it was vacated upon the ground that there was not sufficient upon the face of the affidavit to show Easton v. Malavazi. prima facie that the defendant had concealed himself with such an intent. An attachment cannot be vacated if there was enough in the affidavit to give the judge who made the order jurisdiction; and if the facts and circumstances stated in it had a legal tendency to make out the charge, and fairly called upon the officer for an exercise of his judgment, upon the sufficiency of the evidence, the attachment cannot, even if his conclusion was erroneous, be vacated on the ground that it was void for want of jurisdiction. This has long been the settled rule in this State. It was doubted, however, whether this was the rule where the sufficiency of the affidavit was brought up directly by a motion to set it aside in the court where it was granted, or where the sufficiency of it came up for review upon appeal. It was supposed that this was the rule only where the question arose collaterally in an action or proceeding in which the attachment was claimed to be void for want of jurisdiction. In Skinnion v. Kelly (18 N. Y. 355), it was said by Johnson, Ch. J., that if the proof in the affidavit had a legal tendency to make out a case under the statute, although it were so slight and inconclusive that it would, upon a direct proceeding be reversed; yet, in a collateral proceeding or action, it would be deemed valid, because, although the decision might be erroneous, it was not void. This distinction, however, has been repudiated by the Court of Appeals in the recent case of Schoonmaker v. Spencer (54 N. Y. 366), in which it was distinctly held, seven of the judges concurring, that the rule was the same whether the question of the sufficiency of the affidavit arise in a direct or a collateral proceeding, so that all doubt on this point may now, in this State, be regarded as at an end. It was said by Denio, J., in Van Alstyne v. Erwine (11 N. Y. 340, 341), that the law has committed to the judge who grants the attachment the duty of determining as to the cogency of the proof; that, were it otherwise, it would render such proceedings extremely hazardous, not only to the parties setting them on foot, but to the officers concerned in their execution; for when we determine that a sufficient case was not made out for the exercise of the judgment of |