author: BarNard, P. J.:

text:
    RUFUS C. FROST, Plaintiff, v. THE YONKERS SAVINGS BANK, Defendant.

      Prior mortgage — Subrogation of subsequent incumbrancer — Judgtnent—sheriff’s certificate of sale on — ralid against prior undisclosed agreement of judgment creditor'.

    The defendant was the holder of a first mortgage on premises on which there was a prior judgment. The plaintiff was the assignee of a mortgage on the same premises, between which and the defendant’s mortgage there existed two other mortgages. Prior to the assignment of the mortgage to the plaintiff, the holder of the aforesaid judgment agreed with plaintiff’s assignor to postpone the lien of such judgment to that of the mortgage assigned plaintiff. In January, 1875, the premises were sold under the judgment, and purchased by the defendant, the holder of the first mortgage, the sale being made without notice of the agreement to make it subordinate to plaintiff’s mortgage.
    In February, 1875, the defendant foreclosed its mortgage, made the plaintiff a party defendant as subsequent incumbrancer, who appeared by attorney, but put in no answer. Judgment of foreclosure and sale was entered March 32, 1875.
    May 21,1875, plaintiff tendered the defendant the amount due on the foreclosure judgment, and demanded an assignment of the mortgage and judgment. Defendant refused to receive the money unless the plaintiff would pay the additional sum for which the premises were sold to it on the execution issued under the prior judgment.

      Held, that the tender did not discharge the lien; that the plaintiff had no standing as to the land which entitled him to an assignment of the defendant’s mortgage.

      Held, also, that the holder of the judgment having the title and the right to enforce it, making no reservation and giving no notice indicating that it was not what it purported to be, viz., the first lien on the property sold, the purchaser at the sheriff’s sale took the title, without reference to the agreement made by such judgment creditor postponing its lien.
    Ceoss appeals by plaintiff and defendant from a judgment entered upon the report of a referee.
    On the 20th day of June, 1872, one Hugh McElroen was the owner in fee of certain real estate in the city of Yonkers, West-chester county, at which time he gave a mortgage on said premises, his wife Eliza uniting with him, to the defendant for the sum of $4,000 and interest, which mortgage was recorded.
    The premises were at this time subject to the lien of a certain judgment for $437.72, recovered by George Thomas against said Hugh McElroen, docketed in the clerk’s office of Westchester county, July 3, 1867. This judgment was assigned to Ralph E. Prime on the 9th day of May, 1868.
    April 4, 1874, Hugh McElroen and Eliza, his wife, executed and delivered to William F. Lawrence a mortgage on said premises bearing date January 1, 1874, which was duly recorded. This mortgage was assigned by said Lawrence to the plaintiff May 1, 1874.
    Prior to the assignment of the last mentioned mortgage to the plaintiff, Ralph E. Prime agreed with Lawrence by an instrument in writing dated April 28, 1874, executed-and acknowledged by him, but not recorded, to postpone the lien of the judgment which had been assigned to him by Thomas to the lien of the said $3,000 mortgage of said William E. Lawrence.
    On the 4th day of January, 1875,-the defendant, through E. P. Baird, its attorney, purchased the property in question for $606.07, at a sheriff’s sale, under and by virtue of an execution issued on the Thomas judgment, and received a certificate of sale therefor. The above purchase was made without any notice of the aforesaid agreement.
    In February, 1875, the defendant commenced an action for the foreclosure of its mortgage. Judgment of foreclosure and sale was entered March 22, 1875. In this action to foreclose, the plaintiff was made a party defendant, as a subsequent mortgagee and incum-brancer. He appeared by attorney, but put in no answer.
    On May 21, 1875, the plaintiff tendered to the defendant the amount due upon defendant’s judgment of foreclosure and sale, and demanded of said defendant an assignment of the mortgage and decree, and that he (plaintiff) be permitted to redeem the said premises from defendant’s mortgage and judgment or decree.
    The defendant refused to receive this money unless the plaintiff would pay to the defendant the additional sum of $606.70, being the sum for which the premises in question were sold at the execution sale.
    Intervening the said mortgage of the defendant and the mortgage of the plaintiff, Hugh McElroen and wife executed two other mortgages, covering the premises in question, for the principal sum in the aggregate of $3,000, which are liens subsequent to defendant’s mortgage, and prior to plaintiff’s mortgage.

      The referee, on the trial of the action, found as conclusions of law: That the plaintiff was entitled to redeem the said mortgage and judgment of foreclosure and sale, and was entitled to an assignment of said mortgage and judgment of foreclosure from the defendant, upon the payment to the defendant of the amount due thereon to the 21st day of May, 1875. That the lien of the said judgment, by virtue of the said Prime agreement, was postponed and became subordinate to the lien of the plaintiff's said mortgage, and that the right and interest of the purchaser upon the execution sale are subordinate and subsequent to the lien of the said mortgage of the plaintiff, from which defendant appealed. That the tender so made to the defendant of the amount due on its said mortgage and judgment of foreclosure did not discharge the lien of said mortgage, nor did such tender invalidate the said judgment of foreclosure and sale, or in any respect impair its force and effect, ffom which plaintiff appealed.

      Samuel A. Noyes, for the plaintiff.

      Matt. H, Ellis, for the defendant.
   BarNard, P. J.:

In this case there are two appeals. The plaintiff is a junior mortgagee, holding a mortgage on lands in Yonkers, upon which the defendant holds a prior mortgage. There are two intervening mortgages, held by strangers to the action.

The plaintiff tendered to the defendant the amount due on defendant’s mortgage, and demanded an assignment. This was refused. The referee held that the tender -did not discharge the lien.

I think the referee was correct. The plaintiff had no standing as to the land, which entitled him to pay the mortgage debt of defendant.

It is not like the case of Kortright v. Cady, where the owner of the fee tendered the amount of the mortgage to free his land, but the case of a mortgagee tendering to a prior mortgagee. (Ham v. Jex, 66 Barb., 232.)

Besides the tender was not made to extinguish the lien but was accompanied with a demand for an assignment. There is no legal ground for the plaintiff’s appeal.

The defendant also.appeals, and the case presents purely a question of law upon the facts found by the referee.

The plaintiff had a fourth mortgage upon the property, and the defendant the first mortgage as already stated. There was a judgment prior to all the mortgages. The holder of this judgment, by a private arrangement with plaintiff, agreed to postpone the lien of the judgment to that of the fourth mortgage.

He then issued an execution on the judgment, and at the sheriff’s sale the defendant paid the full amount of the judgment, and took the sheriff’s certificate of sale in entire ignorance of the agreement between plaintiff and the holder of the judgment; under this, certificate the defendant would be entitled, at the proper time, to a deed of all the right, title and interest of the judgment debtor, at the date of the entry of the judgment.

I think the defendant took the judgment debtor’s interest, without reference to the secret agreement.

The holder of the judgment had the title and the right to enforce it. He made no reservation, and gave no notice indicating that it was not what it purported to be, the first lien on the property sold. I am unable to see any reason which entitles plaintiff to an assignment of defendant’s mortgage. It puts him in no better position than he is now.

The sale under plaintiff’s mortgage is for the benefit of all subsequent claims, and the priority of lien can be determined on proceedings to distribute surplus.

If a prior mortgagee may be compelled to assign his mortgage to a subsequent one, when there are more than one subsequent, to which one must he assign % Why pass over the two intervening mortgages, and assign to plaintiff.

I think the judgment should be reversed, and a new trial granted, at Special Term, costs to abide event.

Present — BaeNAed, P. J., and Gilbeüt, J.; DyemaN, J., not sitting.

Judgment reversed, with costs.


source: Caselaw Access Project

author: BaiíNAiid, P. J.:

license: Public Domain

text:
    In the Matter of the Application of the PROSPECT PARK AND CONEY ISLAND RAILROAD COMPANY to acquire Title to Lands in Kings County, now of WILLIAM MOYNAHAN and others, and twenty-two like cases.

      Raib'oad — Dminent domain— Defective title — right to perfect under chapter 140 of 1850 — Public highway — notice to commissioners of.

    It having been held that the petitioners, a railroad company, obtained no title to the lands, as against the owners of the fee, by the legislative permission to lay down them tracks on a certain highway on which they had built their road, orders made on an application by them for the appointment of commissioners to assess the value of the lands for the purpose of compensating the owners should be sustained, on the ground that the case comes within that part of the general railroad act (chap. 140, Laws of 1850), which permits a railroad company to perfect a title found defective.
    When the legislature has located a railroad on an avenue or highway, the necessity of notice and agreement with the commissioners of highways is disposed of.
    Appeals from orders made at a Special Term, in twenty-two cases, appointing commissioners to ascertain and appraise the compensation to be niade to each of the respondents respectively, for real estate proposed to be taken, and on which the applicant’s road was constructed.
    On an appeal from a judgment in favor of the Washington Cemetery against this defendant perpetually restraining it from working, using and operating its railroad over Gravesend avenue, laid out by special act of the legislature (chap. 531, Laws of 1813), it was held that the fee of the land was not taken, but an easement only for the purposes of the highway. (Reported 7 Hun, 655.)
    Application was therefore made by defendant at Special Term for the appointment of commissioners to appraise the compensation to be made to the several owners or persons interested in the land to be taken under the act entitled “ An act to authorize the formation of railroad corporations and to regulate the same,” passed April 2, 1850 (chap. 140), on the grounds that the lands in question were required for the purposes of its incorporation, to wit, for the purpose of constructing, maintaining and operating its road, and that they sought to acquire the right or easement so to construct, maintain and operate their road over such land. That application had, for such purpose, been made by them to the owners, and that they could not acquire title thereto by reason of the inability of the parties to agree, and on such application the orders here appealed from were made.

      Benjamin J. Jiitohings, for the appellant.

      John II. Bergen, for the respondent.

        Washington Cemetery v. P. P. and C. I. R. R. Co., 7 Hun, 655.

   BaiíNAiid, P. J.:

It was decided at the last term of this court, that the Prospect Park and Coney Island Railroad Company obtained no title to the lands as against the owners of the fee, by the legislative permission to lay down their railroad on Gravesend avenue.

Their application for the appointment of commissioners to assess the value of the lands is made for the purpose of making compensation to the owners. I think the case falls within that part of the statute which permits a railroad company to perfect a title found defective. The company claimed that the people took the fee of the lands in Gravesend avenue, not in direct terms but as a necessary consequence of the language used. They built their road under this supposition. It has been held otherwise. The direction of the law that the company shall attempt to buy by agreement, is sufficiently complied with. The company believe that the landowners’ interest is merely nominal and therefore they offer a merely nominal price therefor. The parties cannot agree and there is no other way but the appraisal of a commission.

The legislature have located the defendant’s road in this avenue. This dispenses with all necessity of notice and agreement with the commissioners of highways. I think no sufficient cause was shown why the court should not grant the order.

Affirmed, with ten dollars costs and dibsursements.

Present — BARNARD, P. J., and DyKMAN, J.; Gilbbkt, J., not sitting.

Order affirmed, with costs and disbursements.


author: GILBERT, J. :

text:
    CATHERINE A. BOYLE, Respondent, v. THE CITY OF BROOKLYN, Appellant.

      Assessment — action to set aside as illegal — defeats in — must not be such as would appea/r in proceedings to enforce.

    In an action to vacate and set aside an assessment as illegal, it is not enough to allege that the proceedings, although in fact invalid, appear on their face to he regular, hut to sustain the action it must appear that the defects alleged are such as would not necessarily appear in proceedings to enforce the lien of the assessment.
    Appeal from an order made at a Special Term overruling a demurrer interposed to a complaint, on the ground that it did not state facts sufficient to constitute a cause of action. The complaint set forth certain proceedings taken by the former board of water and sewerage commissioners of the city of Brooklyn, under chapter 652, Laws of 1870, for the repavement of Atlantic avenue which, subject to the provisions of chapter 387 of the Laws of 1874, resulted in an assessment upon plaintiff’s land, which she sought to remove as a cloud upon her title, and alleged, in substance, that upon the proceedings for repaving Atlantic avenue, which appear regular and correct and according to the statute, a majority of the owners of lots fronting thereon did not sign the petition therefor, because persons signing the same, as owners fronting thereon, were not such and had no right to be included in the petition, and without their names a majority of said owners did not sign. That such assessments, on her premises for the repaving aforesaid, were unjust and illegal, and because the irregularity stated did not appear in the proceedings in relation thereto, but were outside of the same, the plaintiff was remediless except by this action wherein she could show the facts and matters herein set forth ; therefoz'e she asked that the assessment on her premises be decreed to be vacated and set aside.

      William O. De Witt, for the appellant.

      Philip S. Groohe, for the respondent.
   GILBERT, J. :

This case is clearly within the principle of Marsh v. The City of Brooklyn (59 N. Y., 280). It is not enough that the proceedings, although in fact invalid, appear on their face to be regular. The defects alleged must be such as would not necessarily appear in proceedings to enforce the lien of the assessment. That is not the case here. Proof of a petition by a majority of the owners would be essential in any proceeding founded on the assessment to recover possession of the premises assessed. Such proof necessarily involves two facts, namely: that those who signed the petition were owners of lots, and that the same fronted on Atlantic avenue. If the fact be as alleged, that a strip of land intervened between the north line of the lots of some of the petitioners, and the southerly line of the avenue as legally constituted, that fact would show that the names of such petitioners ought not to be counted in determining whether a majority had petitioned or not. Still the burden would remain upon those claiming under the assessment of proving that, in point of fact, a majority of owners whose lots fronted on the avenue, as legally laid out, did petition. (59 N. Y., supra; 58 id., 463; 41 id., 123 ; 56 id., 257 ; 40 id., 547 ; 48 id., 406.)

But the averment of the complaint on this subject is wholly defective. It states no fact showing that the strip of land referred to was not legally incorporated into the avenue, nor does it set forth that no proceedings were taken on behalf of the city for that purpose, nor- that it was not ceded to the city or dedicated to the public. In short, it avers a mere legal conclusion. We can and ought to take judicial notice of the fact that the existence of Atlantic avenue in its entire width had been repeatedly recognized by the legislature as a street, before the assessment in question was imposed, and that as early as 1862 it was provided by statute that streets and avenues which had then been, or might thereafter be, thrown out to public use, and used as such for five years continuously, should be deemed and taken to be public streets and avenues, and that the city of Brooklyn and the common council and water commissioners thereof should have all jurisdiction and power in respect thereto, the'same as if such streets and avenues had been opened by proceedings pursuant to the charter of the city. (Laws 1862, chap. 63, §41, p. 204.) The complaint contains no averment that the strip of land mentioned was not so thrown out for public use, and used for five years continuously. Whether this provision will suffice to divest the owner of such strip of any interest in the land or not, it is immaterial to inquire. It is sufficient to destroy the objection of the plaintiff who has no interest therein, that other persons who own lots adjoining such strip have no front on the avenue.

We think the order appealed from is erroneous and should be reversed, and that the defendant should have judgment on the demurrer, with costs,' but with leave to the plaintiff to amend in twenty days on payment of costs.

Barnard, P. J., concurred.' DyKMAN, J., not sitting.

Order overruling demurrer reversed, with costs, and demurrer sustained with leave to plaintiff to amend in twenty days on payment of costs.


author: GILBERT, J.:

text:
    In the Matter of the Acquisition by the RHINEBECK AND CONNECTICUT RAILROAD COMPANY of the Title to certain Lands owned, etc., Appellant, by ALIDA G. RADCLIFF and others, Respondents.

      JRmb’oad — acquisition of lands by— Chapter 140, Laws of 1850 — Chapter 282, Laws of 1854 — Entry of order — when defeated, pm'ty entitled to enter.

    A railroad company presented its petition to the Supreme Court to acquire title to certain lands. The owners opposed the application, but the court appointed commissioners oí appraisal. The commissioners made their report to the co.urt, and on motion oí the company an order was made confirming it and directing . the amount oí the award to be paid to the owners or deposited to the credit of their attorney. The company refused or neglected to file the papers or pay the award. An order was therefore obtained by the owners for the company to show cause why the petition, order thereon, report, and order confirming it should not be filed, and on the return day an order was made directing the filing of the same, the payment of the award in ten days, or that a precept issue to collect the award; from which order the company appealed.

      Held, that the recording of the order of confirmation and payment of the sum awarded would vest the title to the land in the company. That the recording of the order was the duty of the clerk, and the payment of the award the duty of the company. That -the right of the owner to have both performed had been adjudged by the court, and the rights and obligations of both parties had thereby become .fixed, subject only to the right of appeal given by the statute, and neither party could recede or abandon the proceeding without the consent of the other.

      E.B. B. Oo. v. Outwatw' (3 Sandf. S. C., 689) distinguished.
    By section 6, chapter 282, Laws of 1854, the court is vested with power to make all necessary orders and give the necessary directions to carry into effect the object and intent of the statute (chap. 140, Laws of 1850), and the order appealed from came within this power.
    If a parly who is entitled to enter an order fails to do so within twenty-four hours after the decision has been made, any party interested may have it drawn up and entered.
    Appeal from an order made at a Special Term, directing the petition in the above entitled matter, the notice of presentation thereof to the court, the order appointing commissioners, the report of said commissioners and the order of confirmation of said report (if not already filed), to be filed forthwith with the clerk of Dutchess county, and that the said company forthwith pay the amount awarded by said commissioners to the owners or deposit it to the credit óf their attorney. That in case of their omission to pay or deposit said amount for ten days after service of the order on their attorney a precept issue for the collection of said amount.

      A. Wager, for the appellant.

      Ft emit Loomis, for the respondents.
   GILBERT, J.:

The general rule is that, if a party who is entitled to enter an order fails to do so within twenty-four hours after the decision has been made, any party interested may have it drawn up and entered. (4 Wait’s Pr., 606.) And it is the duty of the clerk to enter orders without any special directions from the court. The duty is merely clerical, and in no case will the omission of it be allowed to prejudice-the substantial rights of parties. Upon the confirmation of the report of the commissioners of appraisment in a proceeding under the general railroad act, the rights of parties become fixed, and thereafter neither party can recede or abandon the proceeding without the consent of the other. (Laws 1850, chap. 140, § 18; In re Sy., Bing. and N. Y. R. R. Co., 4 Hun, 311 and cases cited.) The case of Hudson R. R. Co. v. Outwater (3 Sandf. S. C., 689) is not in conflict with this rule. The charter of that company required that payment of the award should precede the action of the court upon the report of the commissioners, and in that case the company, before any action on their award to the owner, took proceedings under another provision of their charter to change the line of their road. The court merely held that the rights of the owner had not become fixed by the award alone, but that in order to accomplish that result, the commissioners’ report must be filed and confirmed, and an order made for the payment of the sum awarded. In this case, however, the recording of the order of confirmation and payment of the sum awarded will vest the title to the land in the company. The recording of the order is the duty of the clerk, and the payment of the money is the duty of the company. The right of the owner to have both performed has been adjudged by the court, and the rights and obligations of both parties have thereby become fixed, subject only to the right of appeal from the report, given by the statute.

If the general railroad act admitted of any other construction we should be reluctant to adopt the one contended for by the appellant, for that would put it in the po'wer of the company, by withholding the entry of the order of confirmation, to retain their right to appropriate the lands of the respondent, and to postpone payment therefor indefinitely. The legislature, we think, did not intend to clothe the company with the power of perpetrating such injustice.. By section 5 of an act amending the general railroad act (chap. 282, Laws of 1854), the court is vested with power -to make all necessary orders, and to give the necessary directions to carry into effect the object and intent of the statute in respect to the acquisition of lands by railroad companies.

We think the order appealed from is within this power, and that it should be affirmed with ten dollars costs, and disbursements.

Present— Gjxbeet and DyKmáN, JJ.; BaeNARd, P. J., not sitting.

Order affirmed, with costs and disbursements.


author: Gilbbet, J.:

text:
    THE NEW YORK AND BROOKLYN SAW-MILL AND LUMBER COMPANY, Appellant, v. THE CITY OF BROOKLYN, Respondent.

      Duties imposed on municipal officers — when not in the interest or prescribedhy the charter of the municipality — corporation not liable for failwre or refusal of its officers to perform.

    A municipal corporation is not liable in damages to a private party, for tlie failure or refusal of any of its officers to perform a duty, not pertaining to the'interests or franchises of the corporation, nor arising under the charter thereof, but imposed upon such officers by a special act of the legislature, in relation to an improvement instituted by the State for the private benefit of a locality, and not for that of the people of the city at large.
    Such a duty is not imposed upon the corporation, nor are such officers called upon to act in their corporate capacity.
    Por the purposes of such an act they become the public and administrative officers or agents of the State, and they act or refuse to act for the State and the locality to be benefited, and not for the city.
    Appeal from an order made at a Special Term sustaining a demurrer to a complaint, that it did not state facts sufficient to constitute a cause of action.
    The plaintiff is the owner of lands adjacent to the Gfowanus canal, in the city of Brooklyn, which canal is a short inlet of Gfowa-nus bay lying in a cul de sao, and fronted upon either side by private property, except where it is crossed by the numerous streets of said city. It is not a source of any public revenue, nor is it a highway for any purpose other than those of the private dock-holders upon its sides. In 1866 an act (chap. 678, Laws of 1866), was passed for the improvement of that canal. By that act the commissioners named in it were directed to cause docks to be built on the sides of the canal, and the canal itself to be deepened. The expense of this work was to be met, in the first instance, by the issue of the bonds of the city, and the city to be reimbursed by an assessment upon the adjacent private property which it benefited. In pursuance of this act, docks were erected by the commissioners on plaintiff’s land. From defective construction these docks sunk. In 1871 another act (chap. 839) was passed directing an assessment to be levied for this work, and also directing the common council to cause the sunken docks to be rebuilt at the expense of the city. The second and third sections of the act are as follows :
    The common council of the city of Brooklyn are hereby authorized and directed to cause to be repaired or rebuilt, at the expense of said city, the docks on the sides of the Gowanus canal, constructed by the said commissioners, where the same have sunk or become unfit for use. The amount necessary to rebuild such docks shall be raised by the issue of certificates of indebtedness, and there shall be levied and collected, in the same manner as other taxes in the city of Brooklyn are, and be paid in, in the year one thousand eight hundred and seventy-two, such sum as may be necessary to pay the said certificates of indebtedness, and such sum, when collected, shall be applied to the payment of said certificates.
    The plaintiffs repeatedly demanded that defendant should rebuild the docks on plaintiff’s land, in accordance with the provisions of the last named act. The defendant and its common council failed and refused to build the docks, and the plaintiff sued for damages on account of such failure.
    A demurrer was interposed to the complaint therein that the complaint did not state facts sufficient to constitute a cause of action, and the same appeared on the - face thereof. An order was made sustaining the demurrer, from which plaintiff appealed.

      Edga/r M. Cullen, for the appellant.

      Wm. C. De Witt, for the respondents.
   Gilbbet, J.:

The liability of a municipal corporation to a person who has sustained damages by reason of a negligent omission of the corporation to perform a ministerial duty imposed by law upon it, cannot be doubted. But we think the duty of repairing the docks of the Gowanus canal was not imposed on the city of Brooklyn, but on the common council of that city. Such is the language of the statute. (Laws 1871, chap. 839.) That is an independent statute and forms no part of the general distribution of powers or duties among the different branches of the city government. Nor is it averred that tbe corporation bas, in any way, assumed tbe performance of tbe duty thereby imposed. Tbe name of the corporation when that statute was passed was, and still is, “ Tbe City of Brooklyn.” If tbe legislature bad intended to impose tbe duty upon tbe corporation they would have used the corporate name. Tbe common council are, it is true, tbe agents of tbe corporation. They may, nevertheless, be charged by tbe legislature with tbe performance of public duties for tbe benefit- of tbe people of tbe State which do not pertain exclusively to tbe affairs of tbe corporation ; and in such a case they should be treated as agents of the State and not of tbe corporation. As a corporation can act only through agents duly elected or appointed, pursuant to tbe Constitution and tbe act of incorporation, tbe legislature may prescribe tbe powers and duties of such agents and the corporation will be liable for their acts and omissions unless exempted from such liability by statute. Although their authority, emanates directly from tbe legislature they are agents of tbe corporation. They represent the corporation, and powers and duties with which they may be clothed by the act of incorporation are, in judgment of law, corporate powers and duties. That is the principle of the ease of Conrad v. Trustees of Ithaca, referred to in 16 New York, 158, and other kindred cases.

In the case before us, however, the repairing of the docks in question was not a duty imposed on the corporation by the charter thereof, nor was it enumerated among those thereby imposed upon any of its agents. It originated in the act of 1811. Commissioners who had previously been intrusted by the legislature with the building of the docks were superseded by that act, and the common council were appointed in their place to repair the same docks which had sunk. ' That work was directed to be done merely to perfect the improvement undertaken by the commissioners. That improvement was strictly a local one for the benefit of adjoining proprietors. A construction of a statute which imposes on the defendant such a liability as is claimed in this case ought to be very ■palpable before it is adopted. We think the most reasonable construction is that the duty and consequent liability were imposed on the common council, as commissioners only, and not as agents of the corporation. Upon principle therefore as well as upon the authority of the cases cited below we think the corporation is not liable for their acts or omissions in respect to the duty so imposed. (Lorillard v. Town of Monroe, 11 N. Y., 392, and cases cited therein ; Russell v. The Mayor, 2 Den., 464; Martin v. Brooklyn, 1 Hill, 545; King v. Same, 42 Barb., 627; see, also, Dillon on Mun. Cor., §§ 772-778; Maxmilian v. The Mayor, 2 Hun, 263.)

The order appealed from should therefore be affirmed, with costs.

BarNard, P. J., concurred.

Present — BarNard, P. J., Gilbert and Dyemau, JJ.

Order sustaining demurrer affirmed with costs, with leave to amend.


text:
    SARAH MERRITT and others, Appellants, v. THE VILLAGE OF PORTCHESTER and JOHN LEONARD, Treasurer of the Village of Portchester, Respondents.

      Assessments — one resolution providing for two — Bids—time of opening — Notice— publication of— objections — chapter 818 of 1868 — chapter 245 of 1875 — regularity of proceedings under.

    The board of trustees of the village of Portchester acted upon two petitions, one for grading Hanseco and the other for grading Irving avenue. There was but one resolution which, though it embraced both streets, yet, in legal effect, established separate assessment districts for each, and the subsequent proceedings were conducted thereunder. Held, that the proceedings were not open to the objection that there was only one proceeding for the grading of both streets.
    A. requirement in a charter that bids shall bo opened on the day mentioned in the notice or oil the adjourned day, and that the trustees shall “ then” determine whose is the most favorable, does not restrict them to an instant determination; they have all the time requisite for a correct conclusion, the word “ then ” being used in the sense of “ soon afterward'" or “ immediately."

    Where a charter requires the trustees to determine upon and fix, but specifies no form in which the trustees are to express then- decision as to the proper compensation for work done, a confirmation of the report containing the charges for expenses, counsel fees, etc., is a sufficient compliance with the provisions of the charter.
    A statute providing that before completing and signing the report, the commissioners must publish, once in each week for two weeks successively, a notice of a time and place, when and where the parties interested can be heard, held, to mean that there shall be two publications, one in one week, and the other in the next week, and not that two weeks must elapse between the first publication and the day designated for the hearing.

      Held, further, that a notice requiring the objections to be in writing was invalid, the statute conferring no authority that such hearing shall be restricted to written objections, and that this objection by the plaintiffs would have been fatal to the proceedings had they disregarded the notice. But having appeared before the commissioners pursuant thereto and had the benefit of a hearing they thereby waived all defects therein.
    Appeal from a judgment entered in favor of the defendants on a decision at Special Term, in an action brought by the plaintiffs for a perpetual injunction restraining the defendants forever from selling, offering for sale or making, issuing or delivering-any certificate of sale or lease of plaintiff’s land, for unpaid assessments for the grading of a street in the village of Portchester. The village was incorporated under a special act passed in 1868 (chap. 818). Proceedings in relation to regulating and’ grading streets and assessments therefor are provided for by sections 22 to 28, inclusive, of title 5 of said act. The provisions of said act as to sales for unpaid assessments were amended by chapter 245 of the Laws of 1875.
    The court at Special Term found, among other things, that the plaintiffs were the owners of the land described in the complaint, the defendant The Village of Portchester-a municipal corporation, and the defendant John Leonard the treasurer thereof.
    That the defendant The Village of Portchester instituted proceedings, under the charter of said village, lor the grading of Hanseeo and Irving avenues on separate petitions as to each avenue, and that they fixed in one resolution the assessment districts for both streets in the following language: “ The assessment districts to defray the expense of said grading be so fixed as to include all the land on both sides of said streets (Hanseeo and Irving avenues) to a depth not exceeding 100 feet.”
    That Hanseeo and Irving avenues are not parts of the same street, but are separate streets running at right angles to each other.
    That the board of trustees of the defendant caused plain and accurate specifications of the work proposed to be done, uniting in the same specifications the work for both streets but making a different plan for each, and deposited the same with the village clerk for public inspection, and gave two notices, one as to each street, that they would, on the 22d day of September, 1873, act in relation to the work of such streets, and that sealed proposals for the work would be received by the clerk until that date.
    That the bids or proposals were opened on the 22d day of September, 1873, by the trustees, read and referred to the road committee, and thereupon the trustees’ meeting adjourned without any further action to the 24th day of September, 1873, on which day they met, received and adopted the report of the road committee then presented, which report deemed the proposal of Robert P. .Brundage the most favorable for grading Hanseco avenue, and recommended that his proposal be accepted, which was the only action determining whose was the most favorable bid. That, thereafter, the proceedings for grading the two avenues were conducted separately as to each, and separate contracts made as to each, in neither of which contracts, nor in the proposals, was a gross sum named as the price for doing the work, but the contract provided for doing the work at a sum per yard and per foot; some of the work to be done by the foot and some by the yard.
    The commissioners of estimate and assessment severally took, subscribed and filed an oath in writing, “each for himself, that we will support the Constitution of the United States, the Constitution of the State of New York, and will perform the duty of commissioner of estimate and assessment for the grading of Hanseco avenue, in the village of Portchester, to the best of his ability; ” and gave notice that the commissioners would meet in said village on November 7th, 1873, from two to five p. M., to receive any written objections that may be offered to and left with them by any of the parties interested; which notice was not dated and which notice was published once in each week for two weeks successively, commencing on the 30th day of October, 1873. That the plaintiffs, by John Lyon their agent, appeared before the commissioners and filed with them written objections, which were returned with their report to the board of trustees. The trustees did not confirm the same but sent the report back to the said com,missioners that they might correct and readvertise the same.
    The commissioners made up a second report and gave notice that all persons feeling themselves aggrieved must present their objections in writing. Objections in writing were presented to said commissioners signed by five persons, including the three plaintiffs, wbicb objections were annexed to the report and the report was then signed by said commissioners and returned to the board of trustees, who did not confirm the same but sent the same back to said commissioners to be reviewed by them and corrected according-to law.
    The commissioners made up a third report and gave a notice similar to that for the second report. No objections on the part of the plaintiffs were made in writing under such notice, but there were objections by other persons. Said third report was by said commissioners returned to the said board of trustees, who did not confirm the same but sent the same back to the said commissioners.
    The commissioners made up a fourth report and before signing the same caused a notice, dated February 25th, 1874, to be published in the village newspaper: “ That the commissioners of estimate and assessment for the grading of Hanseeo avenue in the village of Portchester have completed their report and filed the same with the village clerk, in all respects according to law, where the same could be seen and examined by all persons interested until March 6th, 1874. Notice is further given that said commissioners will meet at the corporation rooms March 6th, 1874, from one to four p. m., and all persons feeling themselves aggrieved must present their objections in writing to the same; ” which notice was published once in each week for two weeks successively, commencing on 26th of February, 1874. No objections in writing to said fourth report were received or presented to the said commissioners. The said fourth report was presented to said board of trustees who, on the 9th day of March, 1874,' confirmed the same.
    No resolution was passed or adopted by said trustees till April 20th, 1874, in terms fixing or auditing any of the items of expense mentioned in said report other than the resolution adopted March 9th, 1874, simply confirming the report.

      Ralph E. Prims, for the appellants.

      Amherst Wight, Jr., for the respondents.
   GILBERT, J. :

We have examined the proeeedings presented for review in this case, and have come to the following conclusions :

1. The objection that there was only one proceeding for the grading of both streets is not correct in point of fact. The board of trustees acted upon two petitions, one for Hanseco and the other for Irving avenue. The resolution fixing the assessment districts, though it embraced both streets, yet in legal effect established separate districts for each of them, and the subsequent proceedings were conducted accordingly.

2. We think the construction of section 23 of title 5 of the charter, urged on behalf of the plaintiffs, is too technical. The requirement that the bids shall be opened on the day mentioned in the notice, or on the adjourned day, and that the trustees shall “ then ” determine whose is the most favorable, does not restrict them to an instant determination. They must have time, and all the time requisite for a correct conclusion. Hence the word “ then,” evidently, was used in the sense of soon afterward ” or “ immediately.” Certainly the legislature did not intend that the trustees should act upon the proposals without having duly considered them.

3. The statute does not require that the proposal shall be to do the work for a specified sum, nor could they ordinarily be properly put in that form. The sureties are to become bound for the doing the work at the price and upon the terms proposed. But that does not imply that the bids shall be in one form or the other. We think that either form is a sufficient compliance with the statute.

4. There was no substantial variance in the oath taken by the commissioners of assessment, from that prescribed- by the statute.

5. We think the cost of the work was properly ascertained. The trustees acted,on the statement of their engineer, and nothing has been shown to impeach the accuracy thereof. The slight discrepancy of' fifty cents between the first and fourth report cannot be so regarded.

6. The confirmation of the report containing the charges for expenses, counsel fees, etc., was a sufficient compliance with the provision of the charter requiring the trustees to determine upon and fix the compensation for those objects. They could not confirm the report without approving those charges, and the charter specifies no form of expressing their determination of the compensation therefor. One mode, therefore, is as good as another, provided it shows an actual determination of the trustees.

Y. The notice of hearing upon the report of the assessment was published twice in successive weeks. That seems to be a compliance with the peculiar phraseology of the statute, which requires that the notice shall be published once in each week for two weeks successively. This we think means that there shall be two publications — one in one week and the other in the next week — and not that two weeks must elapse between the first publication and the day designated for the hearing. Such has been the later construction of similar statutes (Chamberlain v. Dempsey, 22 How., 356 ; Sheldon v. Wright, 5 N. Y., 497 ; Olcott v. Robinson, 21 id., 150; Wood v. Morehouse, 45 id., 368), and the language of the statute under consideration rather repels the idea of a notice of two weeks to the persons interested, by providing that it shall be given to the newspaper and published only twice. The objection to the sufficiency of the notice itself, however, seems to us to be a good one. The statute requires a notice of the time and place when and where the parties interested can be heard. The commissioners are to complete their report after that time. The plain object of these provisions is to afford an opportunity for a hearing before the commissioners, and the benefit of subsequent action thereupon by them, and the statute confers no authority upon them to require that such hearing shall be restricted to written objections. The subsequent provision that the commissioners shall return their report, with all the objections in writing,” does not warrant the inference that the commissioners themselves could properly hear and consider only written objections. Parties who desired a second consideration of their objections by the trustees might very properly be required to reduce them to writing, while no occasion for the observance of such a form would exist at the first hearing before the commissioners. In either case it would be a hearing within the legal signification of that term, which simply means the receiving of facts and argument thereon for the sake of deciding correctly. Still statutes, whereby a man’s property is taken away or burdened with charges upon it, must be strictly pursued. We think that was not done in this particular, and the omission may have deterred the persons interested from making an oral statement of their objections, and so deprived them of a substantial right. .This objection would have been a fatal one, if the plaintiffs had disregarded the notice. But having appeared before the commissioners pursuant thereto, and had the benefit of a hearing, they thereby waived all defects therein. (Buel v. Trustees of Lockport, 3 Comst., 197; People v. Quigg, 59 N. Y., 89, and cases cited.)

8. By section 13 of title 7 of the charter, it was made the duty of the trustees to issue the warrant for the collection of the assessment. That was done, and the sale was made after the return of the warrant. The objection on this ground, therefore, is unfounded.

The result is that the judgment must be affirmed, with costs.

Barnard, P. J., concurred.

Present — -BarNArd, P. J., Gilbert and Dykman, JJ.

Judgment affirmed, with costs and disbursements.


text:
    FREDERICK W. HOTCHKISS, Appellant, v. JOHN H. PLATT, Assignee in Bankruptcy of CLEMENTINA T. RICHARDSON, Bankrupt, Impleaded with others, Respondent.

      Injunction — damages caused, by — what allowable as — Bad, management of receiver — Counsel fee— Injury to business.

    In proceedings to ascertain tlie damage resulting from the granting of an injunction, damages directly caused by the act of divesting the enjoined party of his property and putting it in the hands of a receiver are allowable, but not such as flow from the bad management of the receiver afterwards.
    Counsel fees on the trial of the action in which the injunction was granted are not allowable as damages, without evidence that the expense of the trial was increased by the injunction.
    An allowance made by the court to the receiver in managing the property is not allowable as damages, when the sum so paid is no greater than the defendant, who did not manage the property before the receivership, but employed another person to do it, would have paid for similar services if no receiver had been appointed.
    Any loss of property or diminution of profits occurring in consequence of the change in the custody and control of defendant’s goods or stoppage of defendant’s business is allowable.

      Appeal from an order made at Special Term, confirming the report of a referee appointed to ascertain the damages sustained by the defendant Richardson, by reason of an order of injunction granted in said action.
    In January, 1871, the plaintiff brought an action against Clem-entina T. Richardson and others, the said Clementina then carrying on the business of selling carpets and furniture at the corner of Hudson and Canal streets, New York city, and on the 2d day of February, 1871, an order was obtained in the action appointing a receiver of the property, the order containing an injunction against the said Clementina and others, forbidding them to interfere or dispose of their property. This injunction continued until February 1, 1872, when judgment was entered dismissing the complaint, which judgment was affirmed at General Term, October 31, 1873, and on the 25th day of January, 1875, a reference was ordered to ascertain the damages sustained by reason of the injunction. The injunction stopped collections and payments and forced Clem-entina T. Richardson into bankruptcy. The undertaking on the injunction was not signed by the plaintiff but by John Q. Clark and Frederick S. Wells, as obligors, and the receiver filed a separate bond as such. The referee did not allow damages for the bankruptcy. He allowed:
    First, $2,400 for part of the expense of the receivership.
    Second, $350 for counsel fees on the trial of the action.
    Third, $350 to each of two counsel, or $700 counsel fees on the reference.
    Fourth, $300 referee’s fees.
    Fifth, $2,882.25, the amount of the assets of said defendant Clem-entina T. Richardson, lost by reason of the inability of the receiver and his failure to collect the same, and which failure was occasioned ■by the inability of the defendant to conduct her own business by reason of the injunction therein.
    Making a total of $6,632.25, from all of which allowances, excepting the referee’s fees, the obligors in the undertaking on the injunction appealed.

      Thomas JET. Hubbard, for the appellant.

      Austin G. Fox and Waldo Hutchins, for the respondent.
   GILBERT, J.:

The damages to which a party who has been injured by the granting of an injunction, is entitled, are only such as have resulted directly from the injunction. (2 Wait’s Pr., 124.) Kemote damages are excluded by the very terms of the undertaking, which are that the plaintiff will pay to the defendant “ such damages as he may sustain by reason of the said injunction,” and also by the general rules of law governing the assessment of damages in analogous cases.

In this case the injunction is contained in the order appointing the receiver, which is dated February 2d, 1871. No motion to vacate it appears- to have been made, but the order mentioned required the defendants to show cause on a day specified therein, why the receivership and the injunction should not be continued. Nothing seems to have been done under this branch of the order. On the 18th of February, 1871, the action was referred, by mutual consent, to a referee, to hear and determine the same. The receiver took possession on the same- day he was appointed, viz.: February 2d, 1871, and such receivership continued until the termination of the action.

The receivers that were successively appointed gave bonds for the faithful discharge of their duties. It cannot be claimed, we think, that damages, sustained in consequence of the negligence or want of fidelity of the receivers are allowable, for the reason that they are not, in any sense, attributable to the injunction, and the further reason that other security was taken therefor. The damages directly caused by the act of divesting the defendant of her property and putting it in the hands of a receiver may be allowed, but not such as flowed from the bad management of the receivers afterward.

Applying these principles, we will now look at the report of the referee in detail.

1. The allowance of part of the counsel fees incurred in the trial of the action, was improper. There is no evidence that the expense of the trial was, in any manner, increased by the injunction,, and without such evidence they were not allowable. (Hovey v. Rubber Tip Co., 12 Abb. [N. S.], 360; S. C., 50 N. Y., 335; Allen v. Brown, 5 Lans., 514.)

2. The item of $2,400, awarded by the court to the receiver Andrews, was, I think, improperly allowed. That expense was incurred for services rendered in the preservation and management of the property, and, as the evidence shows, amounts to a less sum than the defendant would have paid for similar services if no receiver had been appointed. The defendant did not manage the business herself before the receivership, but employed another person to do it for her. Payments made to the receiver instead of the defendant’s employe, if they did not subject her to increased expense, certainly do not constitute damages caused by the injunction. If such employe had been the receiver no one would contend that payments to him for his services in taking care of the property and conducting the business, not in excess of the compensation which the defendant had agreed to pay him would be an element of damages, and we think the employment of another person to do the same service does not warrant the application of a different rule. If any loss of property or diminution of profits has occurred in consequence of the change in the custody and control of the defendant’s goods or effects, or the stoppage of her business, either would form a proper element of damages, but not mere expenses which she must have incurred if no such change had been ordered.

3. The referee has found that a loss of property occurred in consequence of the injunction, amounting to $2,882.25. There is evidence to support this finding, and we are not disposed to weigh it in nice balances for the purpose of relieving parties who have become liable for the consequences of an illegal interference with the property of another. That item, therefore, will be allowed.

é. Only one counsel fee can be allowed for services on the reference to ascertain the damages. A party cannot lay the foundation of a claim for damages by employing a greater number of counsel than was necessary. (Collins v. Sinclair, 51 Ill., 328.) The allowance is too large for one counsel, and nothing appears justifying the inference that more than one was necessary.

The order appealed from must be modified so as to reduce the amount allowed for damages to $3,532.25, and as so modified it is affirmed, without costs to either party.

BabNABd, P. J., and DyemaN, J., concurred.

Order modified in accordance with opinion of Justice Gilbebt.


text:
    FRANCES C. SKIDMORE, Administratrix, Respondent, v. CATHARINE N. COLLIER, Administratrix, Impleaded with others, Appellant.

      Pm'tnersMp accounting — Burmving pan'tner — Different causes of action — Joinder of administrator and liei/i's.

    In an action by the administratrix of A. against the administratrix of B. for an accounting in respect to a partnership existing between A., B. and 0., alleging that after the death of A. the partnership was continued by B. and 0., as surviving partners, for a short period, when B. purchased the interest of 0. with partnership effects, and thereafter continued the business as sole surviving partner until his death; and that after the death of B., his widow and adminis-tratrix, the defendant (who had since married one Collier) carried on the same business with the partnership capital and effects, and that no accounting of the interests of A. had ever been rendered to the plaintiff, who was his widow and administratrix; that the other defendants were the children of B. and made defendants on the ground of a partial distribution of their father’s estate to them; and that some of the real estate which descended to them, as heirs of their father, was in fact purchased with the funds of the partnership aforesaid, and so constituted a part of the assets thereof: on demurrer to the complaint by the defendant Collier, administratrix, interposed on the ground that the facts stated in the first cause of action did not constitute a cause of action against her, and that several causes of action had been improperly united in the ■ complaint:

      Held, that the facts stated made out a case within the equitable jurisdiction of the court.
    That a surviving partner, though he has a legal right to the partnership effects, yet, in equity, is considered a trustee to pay the debts and dispose of the effects for the benefit of himself, and the estate of his 'deceased partner
    That the capital of the deceased partner is to be treated as trust property; and when it has been employed in carrying on the business of the concern, so much of the subsequent profits as can be attributed to the employment of such capital must be accounted for by those who have used it; and on this principle the defendant Collier was liable, as administratrix, to account for the quasi breach of trust of B., her intestate, and hence a cause of action was correctly stated against her.
    That there was really but one cause of action set out in the complaint, namely, the right to an accounting concerning the affairs of the partnership mentioned; and no distinct cause of action set forth against the defendants other than Collier, the administratrix; but in such an action it was proper to make all persons parties who were interested in the subject-matter of the accounting, although the interests of the several defendants did not accrue in the same right-

      Appeal' from an .order made at Special Term, overruling a demurrer to tbe complaint.
    The action was brought June 12, 1875, by plaintiff as adminis-tratrix of William D. Skidmore, deceased, against the defendant Collier as administratrix of Henry Skidmore, deceased, together with the next of kin and heirs at law of said Henry Skidmore, alleging a partnership between their respective intestates, and demanding an accounting, etc.
    The amended complaint alleged that, about 1859, said Henry Skidmore and William D. Skidmore, together with one Frank Bush, formed a partnership for the purpose of printing and bronzing tinfoil.
    This partnership was to continue, so far as Bush was concerned, fourteen years, but, as between the Skidmores, it was to continue indefinitely ; i. e., it was terminable at will, and, of course, by the death of either partner.
    Each partner was to share equally in the profits, losses and property of the firm.
    Bush furnished all the money, and the Skidmores furnished an invention for printing and bronzing tinfoil, a patent for which was to be applied for.
    This partnership continued until the death of plaintiff’s intestate, William D. Skidmore, April 11, 1862, at which time his interest in the business was worth about $20,000, and his interest in the stock, -etc., about $3,000.
    Plaintiff was appointed administratrix of the goods, etc., of William D. Skidmore, on July 2, 1862.
    After the death of William H. Skidmore, Henry Skidmore continued to carry on the business with the firm assets until his death in 1873 although he had, in 1864, with the firm assets, bought out Bush’s interest in the firm, after which time all the firm assets became the property of said Henry Skidmore, as surviving partner, “ for the benefit of himself and this plaintiff as administratrix,” etc.
    Hp to the time of Henry Skidmore’s death, he received the moneys, and paid the debts and liabilities of the firm.
    With the proceeds of this business, Henry Skidmore obtained from the United States government certain patent rights, and also purchased certain real estate in his own name.

      Henry Skidmore died intestate, May 19, 1873, possessed of all the property, etc., of the firm, and leaving his widow the defendant, since married to one Collier, and the other defendants, his children, only next of kin and heirs at law.
    June 9, 1873, the defendant Collier “ was duly appointed admin-istratrix” of the goods, etc., of Henry Skidmore, and, as such, took possession of all the property, etc., of Henry Skidmore, “ by him derived from the aforesaid copartnership business as such sole surviving partner.”
    Since the death of W. D. Skidmore, the plaintiff had not received, from either Henry Skidmore or the defendant Collier, any of the moneys, etc., of said business, except that Henry Skidmore, during his life, paid her about forty dollars per month ; but neither said Henry Skidmore, nor the defendant Collier, as his administratrix, have ever accounted to plaintiff.
    On or about April 19', 1875, the defendant Collier, “as such administratrix, in pursuance of a decree of the surrogate of the county of "Westchester, paid over the assets of the estate of the said Henry Skidmore, including the said copartnership property of which he died possessed as aforesaid,” to the defendants, and “ the sums hereafter to come into the hands of the said defendant, Catharine N. Collier, as such administratrix,” would not be sufficient to satisfy plaintiff’s claim, without resorting to the moneys already distributed as aforesaid.
    The plaintiff, as such administratrix, since December 1, 1874, and before the commencement of this action, demanded of the defendant Collier, as such administratrix, an accounting.
    There was no allegation that any more or further assets could possibly come into the hands of the appellant, as adminis-tratrix.
    The second cause of action “ repeats and renews the allegations set forth under the head of the first cause of action,” and alleges that the defendant Collier, after the death of Henry Skidmore, “as his administratrix took possession,” of all the property of said firm, “and as such administratrix continued to carry on said business,” disposed of the patent rights, etc., and has never accounted.
    It also alleges that the defendant Collier, as such administratrix, “in pursuance of the decree of the surrogate of Westchester county, hereinbefore referred to, distributed, as part of the assets of said estate of Henry Skidmore, deceased,” the firm assets; and has not funds to pay plaintiff’s claim, “without resorting.to the moneys so distributed to the other defendants,” and again alleges a demand for an accounting, a refusal, etc.
    The defendant Collier demurred to the first cause of action upon the ground, that the facts therein stated did not constitute a cause of action against her.
    She also demurred to the whole amended complaint upon the ground “ that several causes of action had been improperly united in said amended complaint.”

      0. O. Prentiss, for the appellant.

      R. Mo K. Bunsby, for the respondent.
   GILBERT, J. :

There is really but one cause of action set forth in the complaint. The object of the suit is to obtain an accounting in respect to a partnership formerly existing between William D. and Henry Skidmore and one Bush, upon the allegation that after the death of William the partnership business was continued by Henry and Bush as surviving partners, for a short period, when Henry purchased the interest of Bush, and thereafter carried on the business as sole surviving partner until his death, and that after the death of Henry, his widow and administratrix, who has since married Mr. Collier, carried on the same business, with the partnership capital and effects, and that no accounting of the interest of William has ever been rendered to the plaintiff, who is his widow and adminis-tratrix.

The first count is confined to the business done during the life of Henry, while the second includes that and also the business carried on after the death of Henry by his administratrix, Mrs. Collier. The other defendants are the children of said Henry, and his next of kin and heirs at law. They are made parties upon the allegation that their co-defendant has made a partial distribution of the assets of their father’s estate to them as his next of kin, and that in that way they received moneys which belong to the plaintiff as adminis-tratrix of William D. Skidmore, and upon the further allegation that some of the real estate which descended to them as heirs of their father, was in fact purchased with the funds of the partnership aforesaid, and so constitutes a part of the effects thereof.

We repeat,'these facts constitute only one cause of action, namely the right to an accounting concerning the affairs of the partnership mentioned. In such an action it is proper to make all persons parties who are interested in the subject-matter of the accounting. It matters not that the interests of the several defendants did not accrue in the same right. All persons should be joined whose interests are involved in the accounting sought, howsoever such interests may have arisen, as for instance heirs and personal representatives, residuary legatees and distributees, mortgagors and mortgagees and their assignees. (Story Eq. PL, § 319.) Such is the rule prescribed by the Code (§§ 118,119; Richtmyer v. Richtmyer, 50 Barb. 55; 1 Wait’s Pr. 137.)

The facts stated in the complaint clearly make out a case within the equitable jurisdiction of the court. A surviving partner, though he has a legal right to the partnership effects, yet in equity is considered merely as the trustee to pay the partnership debts, a.nd to dispose of the effects of the concern for the benefit of himself and the estate of his deceased partner. It is the duty of the surviving partner to wind up the affairs of the partnership, and to account for, and pay over to the personal representative of the deceased partner his share of the partnership effects. If he has continued the partnership business with the partnership funds, he is, as a general rule, liable to account for all profits made thereby, and the losses, if any, must be borne by himself. The capital of the deceased partner will be treated as trust property, and when it has been employed in carrying on the business qf the concern, so much of the subsequent profits as can be attributed to the employment of the capital must be accounted for by those who have used it. (Lindley Part., 830, et seq.; Story Part., §§ 343, 346; Willard Eq. [Potter’s ed.] 708; Case v. Abeel, 1 Paige, 398.) This principle renders the defendant administratrix liable to account for the quasi breach of trust committed by the intestate, Henry Skidmore. That is sufficient to dispose of the first ground of demurrer. She is also charged with a like liability as administratrix, arising out of her carrying on said business after tbe death of said intestate. That is not a distinct cause of action. She merely followed the course pursued by said intestate in continuing the business. He treated the partnership effects as if they belonged solely to himself, and she acted accordingly, in administering the personal estate left by him. Her acts were not done on her own account, but in her capacity of adminis-tratrix. Having as administratrix received the effects of the partnership, and the profits which accrued from the use thereof, and having acted in carrying on the business bona fide for the benefit of the estate which she represents, she is liable in her representative capacity and ought not to be liable personally. (Pugsley v. Aikin, 1 Ker., 497.)

Nor is any distinct cause of action set forth against the heirs and next of kin of Henry Skidmore. They are liable only to refund such sums as may be necessary to make good the amount which shall be found to be due to the plaintiff upon the accounting, and to have the real estate which has descended to them applied to the same purpose. It is not the object of the action to enforce the liability imposed on them by statute in respect to creditors of their father.

The order overruling the demurrer must be affirmed with costs, with leave to defendants to answer in twenty days on payment of costs.

BakNAbd, P. J., concurred. DyKMAN, J., not sitting.

Order overruling demurrer affirmed, with costs, with leave to defendant to answer in twenty days, on payment of costs.


author: Gilbeet, J.:

text:
    THE PEOPLE ex rel. SAMUEL ACKERLY and others, Appellants, v. CITY OF BROOKLYN, Respondent.

      Oertiora/ri — to review sUreel openings — issuing of., disa’eiionai'y — must be applied for within iwo years.

    The writ of certiorari is an appropriate remedy to review proceedings for the opening and grading of streets. Although there is no statutory limitation of time within which the writ must be obtained, it is not one of right, and the. court can, in its discretion, refuse it in any case, and quash it where it has been improperly granted.
    The general rule has been to quash the writ where application therefor has not been made in due season, and due season has usually been limited to two years.
    Appeal from an order made at Special Term quashing a writ of certiorari.
    Application was made August, 1875, to review and set aside an assessment for grading and paving Orchard street, in the city of Brooklyn. The ordinance or resolution directing the improvement to be made was passed August 28, 1871. Advertisement of the proposed district of assessment and for remonstrances was duly made in June and July, 1871, and no remonstrances were presented. Advertisement for proposals to do the work was duly made, and the proposals received were opened Oetober 9,1871. The contract was awarded December 27, 1871, and the contract duly completed and the improvement fully made before December 21, 1872. The assessment was confirmed March 18, 1875, and the warrant for the collection of the assessment was issued April, 1875. The General Term, by an order made February, 1876, remitted the matter for a hearing to the Special Term. At the Special Term an order was made quashing the writ.

      T. F. Feville, for the relators.

      William O. De Witt, corporation counsel for the respondent.
   Gilbeet, J.:

No doubt a certiorari is an appropriate remedy in a case of this kind. Nor is there a statutory limitation of the time within which tbe writ must be obtained. Still tbe writ is not one of right, but tbe court bas a discretion to refuse .it in any case, and to quash it where it bas been improperly issued (Magee v. Cutler, 43 Barb., 239; People v. Supervisors of Allegany, 15 Wend., 198; Susquehanna Bank v. Supervisors of Broome, 25 N. Y., 312); and tbe general rule is, that it will be quashed where it appears that application for tbe writ was not made in due season. It bas been held in many eases that it ought not to issue after tbe lapse of two years, and that when issued after that time it should be quashed. (Elmendorf v. The Mayor, 25 Wend., 693; People ex rel. Agnew v. The Mayor, 2 Hill, 13; People ex rel. Davis v. Hill, 1 N. Y. S. C. [T. & C.], 154; People ex rel. Tompkins v. Landreth, 4 id., 134; People ex rel. Corwin v. Walter, 4 id., 638.) We fully approve tbe rule on this subject laid down in these cases and tbe reasons on which it is supported. It applies emphatically to the case before us. The relators did not move until four years, lacking two days, after the ordinance for the grading and paving the street was passed, and nearly three years after the work had been performed. No objection was raised by them until the assessment for the cost of the work was put in the course of collection. They should have availed themselves of this remedy within two years after the ordinance was passed. Not having done so they must be deemed to have acquiesced in the passage of the ordinance, and so to have precluded themselves from setting up the invalidity of the ordinance to affect the assessment founded thereon. The improvement is a local one, the expense of which is properly chargeable on the property of the relators and the other adjoining owners, and it would be unjust to others to relieve them from the burden by imposing it upon the city.

We think the court below very properly quashed the writ and the order must be affirmed, with ten dollars costs and disbursements.

BARNARD, P. J., concurred. DyKman, J., not sitting.

Order affirmed, with costs.


text:
    LONG ISLAND CITY, Appellant, v. THE LONG ISLAND RAILROAD COMPANY, Respondent.

      Municipal charter — street regulations — Railroad— § 14, sub. 8 of title 3, and § 19 of title 11 of chapter 461 of 1871, construed.

    Power was granted to Long Island City by its charter, to regulate the use of its streets by railways ; such charter also provided that nothing therein contained should be construed as granting to said municipality power to prohibit or control, in any manner, the use of steam power on any railroad from any ■ part of Long Island to the Bast river, and such railroad should have an unobstructed right to run to the Bast river with their locomotives and cars, but should furnish suitable guards or signals at the street crossings for the protection of the public, held, that the legal effect of this latter provision was to exempt the railroad of defendant, which ran from a part of Long Island through said city to the Bast river, from an ordinance requiring it to station a flagman at its crossings.
    Appeal from a judgment of the County Court of Kings county dismissing plaintiff’s complaint. The action was brought to recover of the defendant a penalty of fifty dollars, imposed by an ordinance of the plaintiff, because of the failure of the defendant to station a flagman at a certain crossing as directed by said ordinance. The ordinance being passed under the power claimed to be vested in them by section 14, subdivision 5, title 3 of their charter, chapter 461, Laws of 1871. The dismissal was based on the ground, among others, that there was now a’law requiring railroads to give certain “signals” on approaching all streets and public roads, and a penalty prescribed for their omission soto do, and that the plaintiff’s charter conferred no power to require of the defendant an additional duty in regard thereto, or to impose an additional penalty for failure to perform it.

      8. B. Noble, for the appellant.

      Downing db Stmibrough, for the respondent.
   GILBERT, J.:

By title 3, chapter 1, section 14, subdivision 5 of the charter of Long Island City (Laws 1871, chap. 461, p. 905), power has been granted to the common council thereof to make an ordinance to regulate the use of streets, etc., by railways, but by section 19, title 11 of that charter (Laws 1871, 982) it is provided that nothing therein shall be construed as granting to the mayor or common council of said city, or either of them, or to any officer of said city power to prohibit or control in any manner the use of steam power on any railroad from any part of Long Island to the East river, and such railroad shall have an unobstructed right to run to the East river with their locomotives and cars, but shall furnish suitable guards or signals at the street crossings, for the proper protection of the public. It is conceded that the defendants’ railroad is one of those which are protected by this section. The legal effect of that provision, we think, is to except those railroads from the operation of the grant of power first mentioned. The common council cannot control the use of steam power by the defendants on their railroad, nor obstruct their right to run to the East river with their locomotives and cars. The ordinance passed by the plaintiff requires the defendants to station flagmen at all points where the railroad crosses a -street, avenue, road or public place, and as it applies only to companies using steam power, is a direct attempt to control the use of that power on their road, and if carried out would necessarily obstruct the right which the defendants acquired by virtue of their act of incorporation. Eor any addition, by means of an ordinance, to the duties or burdens imposed by law on the defendants, would necessarily be an exercise of control over, and restrictive of the right before enjoyed by them.

We think, therefore, that the ordinance transcends the power vested in the common council, and upon that ground the judgment must be affirmed.

BarNArd, P. J., dissented.

Present — Baruard, P. J., Gilbert and DtKMAN, JJ.

Judgment affirmed with costs.


author: Gilbert, J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK, Respondents, v. CHARLES GAINEY, Appellant.

      Licenses (§ 3, chap. 175, 1870) may be granted for less them a year.

    The provision that all the licenses granted by the commissioners of excise shall expire at the end of one year from the time they shall be granted, is a limitation of the power of the commissioners, not a constituent of the license itself, and within the limitation aforesaid the commissioners have full power to determine the period of a license. Therefore, when a person was indicted for selling liquor after May 1, 1875, and before December 7, 1875, without a license, held, he was not protected by a license granted December 7, 1874, and which, by its terms, expired May 1, 1875.
    CeRtioeaRI on a bill of exceptions, to review the conviction of the defendant for selling strong and spirituous liquors.
    The defendant was indicted for selling spirituous liquors without a license. Admitted the sales at the time alleged (June 1, 1875), but claimed on the trial that, as the license was granted December 7, 1874, although by its terms it expired May 1, 1875, it did not expire until the end of the year. That, as the statute read, “ all licenses shall expire at the end of one year from the time they are granted,” the period of time being fixed by thé legislature, the commissioners of excise had no power to fix a different time, and their attemjit to fix a different time in the license was mere sur-plusage, as when they granted a license their power was expended.

      Geo. H. Deolcer and D. D. McKoon, for the appellant.

      O. D. Drown, district attorney, for the respondent.
   Gilbert, J.:

We think the construction which the court below put upon the statute under which the defendant’s license was granted (Laws 1870, chap. 175, § 3) is the correct one. The provision that all the licenses granted by the commissioners of excise shall expire at the end of one year from the time they shall be granted, is a limitation of the power of the commissioners. It is not a constituent of the license itself. Within the limitation aforesaid, the commissioners have full power to determine the period of the license. The power being a general one, to grant licenses as provided by law, the only restriction upon it must be sought in the statutes regulating excise, and no restriction upon the power of the commissioners to grant a license for a shorter period than one year has been pointed out.

The rulings of the court upon the trial, we think, were clearly proper.

• The conviction should be affirmed, and the proceedings remitted to the Orange County Court of Sessions with directions to proceed thereon according to law.

Barnard, P. J., concurred.

Present — BARNARD, P. J., Gilbert and Dykman, JJ.

Conviction affirmed and proceedings remitted to the Court of Sessions in Orange county.


text:
    CHARLES C. YOUNG, Respondent, v. WILLIAM F. DRAKE, ALBERT L. PRITCHARD and CHARLES CURTISS and THE SMITH AND PARMELEE GOLD COMPANY, Appellants.

      Action by stoaWiolder against trustees and company — when maintainable— Code, § 119 — Evidence — that corporation will not-prosecute.

    A. complaint averring that there are only five trustees of a company; that the plaintiff was a stockholder when the action was brought; that three of such trustees, who were the persons charged with committing a fraud, were made defendants, and that the action is brought in behalf of all other stockholders who will join, comes within section 119 of the Code, and a demurrer inteiposed thereto on the grounds “that the plaintiff has not legal capacity to sue: 1st. Because the plaintiff only became a stockholder after the matters complained of occurred; 2d. Because the statutes of this State restrict the power to bring actions of this nature to the people of the State, through their attorney-general, and to creditors of the company; 3d. That the Smith and Parmelee Gold Company alone had the right to maintain the action, and had never been requested i so to do,” will not he sustained.
    Although the general rule is that an action of this kind must be brought by the ; corporation, yet where the complaint shows that the corporation is still controlled by the same trustees who are accused of the fraud, or where such < aocused persons are a majority of the trustees, it is sufficient evidence that corporation will not prosecute, and that an application to the trustees to direct a suit to he brought against themselves, or the derelict majority of their members, would be useless.
    A purchase of stock, after an alleged fraud is committed, does not condone the fraud, and the purchaser acquires all the rights of the person of whom he purchased.
    Appeal from an order made at Special Term, overruling demurrers to the complaint.
    The complaint alleged, in substance, that the plaintiff was the owner of 1,000 shares of the capital stock of the Smith and Parmelee Gold Company, a corporation organized under the general laws of the State of New York, having five trustees and its principal place of business in the city of New York, and that he brought the action in behalf of himself and of all the other stockholders who should join therein. That the defendants Drake and Pritchard were trustees of said company in September, 1868; the defendant Curtis in January, 1869; two other trustees, Rufus Hatch being elected in January, 1870, and Jacob B. Jewett in January, 1871; all of whom were re-elected and were trustees when his action was brought. That' on the 11th day of January, 1869, the defendant Pritchard was elected president and the defendant Drake treasurer thereof, and have ever since continued to hold said offices. That at meetings of said trustees, at which said Hatch and Jewett were not present, but at which the three, named as defendants in this action, constituted a quorum for the transaction of business, they voted to each other divers sums of money as salaries and for other purposes.
    That in pursuance of such resolutions the said Pritchard received from the treasurer, on or about the same day, the sum of $350, and also the further sum of $1,150 on account of salary; and the said Drake took from the company funds, in his hands as treasurer, the sum of $275, and the further sum of $1,150 on account of salary.
    Then the said Pritchard and Drake, for the $850 balance of salary respectively, and also for the further sum of $166.66, added thereto by each, for salary beyond the time specified in said resolutions, with the knowledge and assent of the said Curtiss, procured judgments against the company in the district of Gilpin county, Colorado, where the company’s mining lands were situated, which judgments were entered in May term, 1871, each for the sum of $1,066.66. That executions were issued thereon to the sheriff of the county aforesaid under which sales were made of the mining-lands, mills and machinery of said Smith and Parmelee Company, in Colorado aforesaid, in 1871, of great value, but on a single bid only in the interest of the plaintiffs in the judgments, to an amount sufficient only to cover or pay the said judgments; whereby the said Smith and Parmelee Company were divested of the lands, etc., so sold, and sustained great damages by reason thereof. And plaintiff avers that the said judgments were recovered and enforced by the said Pritchard and Drake, in collusion each with the other, and that defendant Curtiss had knowledge of all the proceedings and concurred therein, the three making a majority of the trustees.
    That the resolutions of the trustees, by which the sums aforesaid were given to the said Pritchard and Drake, were void in law, and that the said defendants Pritchard, Drake and Curtiss are liable for the amounts so unlawfully voted and paid to said Pritchard and Drake. That the recovery of judgments for the residue claimed under said resolutions, and for the additional sum'of $166.66 added thereto, without any authority whatever, was invalid, and that the said Pritchard, Drake and Curtiss ought to answer for the loss to the company of the property sold under executions issued upon such judgments, and claimed judgment against the defendants Pritchard, Drake and Curtiss therefor, and that a receiver he appointed to receive the sum found to be due by them and distribute it to the stockholders.

      John £>. Lawrence, for the appellants.

      Alex. H. Dana, for the respondent.
   GILBERT, J.:

We think the demurrers were properly overruled. The general rule no doubt is, that an action of this kind must be brought by the corporation; but where the complaint shows that the corporation is still under the control of those who must be defendants in the suit, the stockholders, who are the real parties in interest, may bring the suit in their own names, making the corporation a party defendant; for a court of equity never permits a wrong to go unre-dressed merely for the sake of form. The individual defendants are in law, as well as in name, trustees, and the stockholders are the cestuis que trust, and have a joint interest in all the property and effects of the corporation. Upon general principles of equity, therefore, stockholders have a right to maintain an action against the trustees of the corporation for a fraudulent breach of trust, when it is apparent that the corporation itself will not sue for their benefit. And where the corporation is still controlled by the same trustees who are accused of the fraud, or where such accused persons are a majority of the trustees, that is sufficient evidence that the corporation will not prosecute, and that an application to the trustees to direct a suit to be brought against themselves, or the derelict majority of their members would be useless. The law never requires the performance of a supererogatory act. (Ang. & Ames on Corp. [10th ed.], § 312, and cases cited.) The action is brought in behalf of the plaintiff and all other stockholders, con-formably to section 119 of the Code. It is averred in the complaint that there are only five trustees; three of them, being the persons charged with having committed the fraud, are made defendants, and it is alleged that they are still trustees. The case, we think, is within the rule stated.

It is enough that the plaintiff was a stockholder when the action was brought. If he purchased his stock after the alleged fraud was committed, that did not condone the fraud. The plaintiff acquired all the rights of the person of whom he purchased. (Ramsey v. Gould, 57 Barb., 398.)

It is hardly necessary to discuss the other points, namely: that there is a misjoinder of causes of action, and that the court has no jurisdiction. The complaint sets forth only one cause of action, and the court clearly has jurisdiction.

The order must be affirmed, with costs, with leave to the defendants to amend in twenty days on payment of costs.

BaeNaed, P. J., concurred. DyxmaN, J., not sitting.

Order overruling demurrers affirmed, with costs, with leave to defendants to amend in twenty days on payment of costs.


text:
    BENJAMIN ANDREWS, Respondent, v. CATHARINE A. MONILAWS, Appellant.

      Married, woman — collection of debt, charged on 1m separate estate — should he by common law action — not by action for foreclosure — Judgment by default — Belief greater than that ashed for in complaint — irregular.
    Tlie defendant, a married woman, made her promissory note, in and by which she in express terms charged her separate estate. An.action was brought (by service of summons for relief) to enforce the lien upon and' payment of the amount thereof out of the defendant’s property. Defendant did not appear, and on default plaintiff obtained an order of reference to compute the amount due, and upon the report of the referee judgment was entered, adjudging and directing that the defendant’s property so charged and described in the complaint be sold by a referee therein named, and that the defendant be barred of and from all equity of redemption in said premises, etc. The said premises were sold by such referee in pursuance of said judgment.

      Held, that sections 274 and 287 of the Code provide the same remedy by judgment and execution against a married woman as the law affords against other persons, with the single qualification that the execution can be levied and collected only of her separate property.
    That the statute having given a legal remedy which was adequate, there was no occasion for administering equitable relief.
    That although formerly such a contract was treated as an appointment of or charge upon the separate estate of a married woman, and the only remedy for its enforcement was by bill in equity, yet that mode of proceeding had been entirely superseded by section 7 of chapter 172 of the Laws of 1862, which enacted that “ a married woman may be sued in any of the courts of this State, and whenever a judgment shall be recovered against a married woman, the same may be enforced by execution against her sole and separate estate in the same manner as if she were sole,”

    That such enactments were in pari materia with the special statutes for the protection of married women, and should be so construed as to insure to them the same protection against the sacrifice of their property-which the law gives to a feme sole, viz., levy, advertisement, right of redemption, etc.
    That the more summary and expensive remedy pursued in this case of foreclosing a lien or charge, and thereby cutting off the right of redemption, was in contravention thereof.
    A judgment, taken by default, giving greater relief than that demanded in the complaint, should be set aside.
    Appeal from an order made at Special Term, denying a motion to set aside a judgment against the defendant and a sale made in pursuance thereof. The defendant, Monilaws, a married woman, executed her note at six months, dated April 1,1873, for $188.16, with interest, to George Andrews, and in and by it charged her separate estate with the payment thereof. The note, before its maturity, was duly indorsed to the plaintiff, who, when it became due, demanded payment, and on failure to pay brought suit. A summons for relief and a verified complaint were served May 10, 1875. The latter demanded judgment for $188.16, with interest from April 1, 1873, and that defendant’s property, describing it, be made chargeable with said indebtedness, and that it be sold under the direction of the court for the payment of said indebtedness, and that the plaintiff have such other order or relief in the premises as may be just, together with the costs in this action. Notice of Us pendens was filed May 25, 1875. No appearance, answer or demurrer was served by defendant, and plaintiff, on default, obtained an order of reference to compute amount due, and on the coming in of the report an order was made at Special Term confirming it, and adjudging that all and singular the premises mentioned in the complaint, or so much thereof as may be sufficient, be sold, etc., following the language of the ordinary judgment on the foreclosure of a mortgage, including the naming of the referee to sell, the execution of the deed to the purchaser, the barring of the equity of redemption, and disposition of the proceeds of sale, etc., including an allowance of two and a half per cent. '
    IJpon an affidavit of the defendant, the judgment roll, and other papers herein, an order was obtained to show cause why the judgment and all subsequent proceedings should not be set aside on the ground:
    1. That the summons was irregular, the same being for relief instead of contract.
    2. That the damages should have been assessed by the clerk, and not by a referee, as the amount of plaintiff’s claim was liquidated.
    3. That the decree and part of judgment roll was irregular and void.

      a. In ordering the premises to be sold by a referee.

      b. In that it bars and forecloses the defendant of and from all equity of redemption.

      c. In granting an allowance to plaintiff of two and one-half per cent.

      ' 4. That the bill of costs and taxation by the clerk was irregular and void.

      a. In that tbe plaintiff was not entitled to fifteen dollars costs after notice of trial, the defendant not appearing.

      b. Nor allowance by statute.

      o. Nor allowance by the court.

      cl. Nor referee’s fees.

      e. Nor for filing lis pendens.

      f. Nor for searches.
    The motion was denied, and the defendant appealed to this court.

      Ohristia/n Gr. Moritz, for the appellant.

      Joseph 8. JSiclgway, for the respondent.
   GILBERT, J.:

A promissory note of a married woman, made in the course of her separate business, or which is for the benefit of her separate estate, is a valid contract and may be enforced at law in the same manner as if she had not been married. Formerly such a contract was treated as an appointment of, or charge upon, the separate estate of the married woman, and the only remedy for its enforcement was by bill in equity. But that mode of proceeding to enforce such contracts has been entirely superseded by legislation. By section 7 of chapter 172 of the Laws of 1862, it is enacted, that a married woman may be sued in any of the courts of this State, and whenever a judgment shall be recovered against a married woman the same may be enforced by execution against her sole and separate estate in the same manner as if she were sole. Sections 274 and 287 of the Code provide the same remedy by judgment and execution against a married woman as the law affords against other persons, with the single qualification that the execution can be levied and collected only of her separate property. The language of these statutes is perfectly plain. If, however, they were susceptible of a construction against their manifest intent, which would enable us to uphold this proceeding, we should not apply it. The statute having given a legal remedy which is adequate, there is no occasion for administering equitable relief. The enactments cited are m pari materia with the special statutes for the protection of married women, and they should be so construed as to insure to them the same protection against a sacrifice of their property which the law gives to femes sole, namely, levy, advertisement, right of redemption, etc. The more summary and expensive remedy pursued in this case, of foreclosing a lien or charge, thereby cutting off the right of redemption, which is given by statute to all persons whose lands have been sold on execution, we think is in contravention of those enactments. So are the authorities. (Hier v. Staples, 51 N. Y., 136 ; Corn Ex. Ins. Co. v. Babcock, 42 id., 613 ; Peack v. Lemon, 1 Lans., 295; Baldwin v. Kimmel, 16 Abb., 353 ; 1 Wait’s Pr., 124.)

The judgment was taken by default, yet it gives the plaintiff greater relief than is demanded in the complaint. For that reason also it should be set aside. (Code, § 275.)

The order appealed from should be reversed, and an order should be entered vacating the judgment and all subsequent proceedings, with ten dollars costs at Special Term, and ten dollars costs on this appeal, besides disbursements.

BaeNAbd, P. J., concurred. Dyeman, J., not sitting.

Order reversed and motion granted with ten dollars costs of motion and ten dollars costs of appeal, and disbursements.