author: DyKMAN, J.:

text:
    In the Matter of BENJAMIN VALENTINE, a Lunatic.

      Lunatic — sale of real estate of — jv/risdietion of court — reference to ascertain facts — ■ when neeessa/ry.

    Upon an application for the sale of the real estate of a lunatic, the petition alleged that the only real estate belonging to him was that therein described; that it was necessary for the support and maintenance of the lunatic that this should he sold, and that the committee had, subject to the approval of the court, entered into an agreement for the sale thereof at a price therein specified. Upon the presentation of the petition, an order was made, no reference .having been, ordered, directing the sale of the real estate to the person with whom the contract had been entered into. Held, that the court had jurisdiction to direct the sale to he made, and the title acquired by the purchaser thereunder could not be attacked collaterally, even though the proceedings might have been, in some respect, irregular.

      Semble, that it is not obligatory upon the court either under the Devised Statutes (2 R. S., 58, § 12) or under the act of 1864 (chap. 417) to order a reference to ascertain the truth of the facts set forth in the petition, when it has satisfied itself of the existence of these facts and the propriety of ordering the sale by any other means.
    Appeal from an order made at Special Term denying a motion made by one Jacob Half, to compel tbe committee of a lunatic to amend proceedings heretofore instituted by them for tbe sale of real estate belonging to said lunatic.

      D. P. Bcvrna/rd, for tbe appellant.

      John J. Armsi/rong, for tbe committee, respondent.
   DyKMAN, J.:

On tbe 6tb day of August, Curtis S. Smith, tbe committee of tbe person and estate of Benjamin Valentine, a lunatic, presented a petition to tbe Supreme Court, in which be stated that tbe only real estate belonging to tbe lunatic was a parcel of land therein particularly described, and that tbe lunatic was tbe owner of that parcel; that it did not produce any income; that there was no personal property belonging to tbe lunatic, except a small quantity of household furniture, and that it was necessary for tbe support and maintenance of tbe lunatic and bis wife and children that this real estate should be sold. That tbe committee bad, subject to the approbation of the court, entered into an agreement with one Jacob Iioff, of Hempstead, for the sale to him of the real estate mentioned and described in the petition for the sum of $2,300, to be paid upon the delivery of the deed therefor, which sum was the highest amount that he could obtain therefor. Wherefore, the petitioner asked that he might be authorized to sell the land so mentioned and described, that the contract which he had made therefor might be affirmed, and that such other and further order might be made as should be just. Whereupon, an order of the court was made and entered, whereby this report of the committee and the sale therein mentioned, was ratified, approved and confirmed, and whereby it was further ordered that the said committee execute and deliver to the .said Jacob Hoff, the purchaser named, a good and sufficient conveyance of the piece or parcel of land sold, upon receiving the purchase-money agreed upon, and, that the said committee, after paying out the costs of the proceedings, and the other necessary expenses of effecting the sale, pay the residue of the proceeds of the sale to the county treasurer of Queens county, to be invested by him, and paid out by him on the order of the court, and that the committee, before receiving the proceeds of the sale, should give additional security by a bond, with two sureties, to be approved by a justice of this court, conditioned for the faithful application of and accounting for the proceeds of the sale. In pursuance of this order, a deed of conveyance was executed by the committee to Jacob Hoff on the 20th day of August, 1873, which was delivered and accepted; the money was paid and the purchaser went into possession of the land. On the 1st day of July, 1876, Jacob Hoff entered into a contract to sell .and convey the land, and the purchaser has declined to consummate the contract because, as he alleges, Hoff got no title by his conveyance to him, on account of certain irregularities in the proceedings which led up to that conveyance, and he made a motion at the Special Term that the committee should be required to amend his proceedings or institute new ones for the purpose of perfecting his title, or refund the purchase-money.

This motion was denied at Special Term, and the case comes to ns, on appeal from that order.

Courts of equity bave power to direct tbe sale of lands owned by a lunatic, but they are all statutory and independent of the provision of our statures on the subject, the courts of this State have no jurisdiction to entertain these proceedings for any purpose whatever. For the purpose of securing their validity, therefore, proceedings in the courts, for the sale of the lands of a lunatic, must be had in substantial compliance with the statutes of the State on that subject. By the Revised Statutes, the committee of a lunatic may apply to the court for authority to sell the real estate of the lunatic, in two cases: First; when his personal estate is insufficient for the discharge of his debts; and, second; when the personal property of the lunatic, and the rents of his real estate, are insufficient for the maintenance of himself or his family, or for the education of his children. The application must be by petition, which shall set forth the particulars and amount of the estate-, real and personal,, of the lunatic, the application which may have been made of any personal estate, and an account of the debts and demands existing against his. estate, on the presentation of this petition. It must be referred to a referee or the clerk of the court to inquire into and report upon the matters contained in the petition, whose duty it is to examine into the truth of the representations made, to hear all parties interested in such real estate and to make a report thereon. If, upon the coming in of the report, and an examination of the matter, it shall appear to the court that the personal estate of the lunatic is not sufficient for the payment of his debts, and that the same has been applied to that purpose, an order shall be entered directing the sale of the whole or a part of the real estate as may be necessary. By the statute the same facts are required to be stated in the pétition, and the same proceedings had in the last case as in the first. (Revised Statutes, vol.- 2 [1st ed.], chap. 5, title 2, pages 53, 54.) Then came the act of 1864, which provided that whenever it shall appear that a disposition of the real estate of a lunatic is necessary and proper, either for the support and maintenance of such lunatic or for his education, or that the interest of such lunatic requires or will be substantially promoted by such disposition, on account of any such part of such property being exposed to waste and dilapidation, or on account of its being wholly unproductive, or when the same has been contracted to be sold and a conveyance thereof cannot be made by reason o'f said lunacy or for any other peculiar reason or circumstance, the court may order the letting for a term of years, or the sale or other disposition of such real estate or interest to be made by such committee, in such manner and with such instructions as shall be deemed expedient. That, upon an agreement for the sale, leasing or other disposition of such property being made, the same shall be reported to the court on the oath of the committee making the same, and if the report be confirmed a conveyance shall be executed under the direction of the court, and that all sales, leases, disposition and conveyances made in good faith by such committee in pursuance of such orders, shall be valid and effectual as if made by such lunatic when of sound mind. (Laws of 1864, chapter 417.)

From these recitations of the statutes it appears that there were sufficient facts stated in the petition, to enable the court to entertain jurisdiction of the proceedings and order the sale of the property, for it was stated therein that the sale of this real estate was necessary for the support and maintenance of the lunatic and of his wife and children. This is a sufficient statement under the Revised Statutes or the statute of 1864, for, under both, one ease in which the real estate of a lunatic may be sold by order of the court is where it is necessary and proper for the support and maintenance of such lunatic. The court then obtained jurisdiction by the presentation of the petition; but it is claimed that the sale ordered by the court was ineffectual to vest the title in the purchaser, by reason of certain irregularities in the proceedings. On the presentations of the petitions no order of reference was made as required by the statute, but the court made an order confirming the sale and ordering a conveyance. When an order of reference is made in these and similar proceedings it is for the purpose of informing the conscience of the court, and if any other means is adopted to accomplish the same end they are equally effective. The Revised Statutes contemplate that the court shall make an examination of the matter, even after the reception of the referee’s report, and we suppose that examination can be made without any order of reference, or any referee’s report. Besides, this statute of 1864 does not, in terms, require any order of reference, and we suppose these proceedings were had under that act.

But suppose there are irregularities or omissions, or even errors in tbe proceedings, so long as tbe court bad jurisdiction and was competent to make tbe order it cannot be attacked collaterally. Tbe adjudication is valid so long as it is permitted to stand unreversed, and tbe statutes above cited provide that all sales made in good faitb, in pursuance of sucb order, shall be as valid and effectual as if made by such lunatic when of sound mind. This must be held to mean that tbe purchaser under these proceedings, will be vested by tbe deed of tbe committee with tbe same title that tbe lunatic bad when be was of sound mind, and at tbe time tbe committee was appointed, and this entirely independent of tbe question whether tbe proceedings are regular or irregular.

These considerations lead us to tbe conclusion that tbe purchaser under tbe order of August 6, 1873, obtained all tbe title of tbe lunatic and that there is no occasion for any amendment of tbe proceedings.

Order appealed from affirmed, with costs and disbursements.

Gilbert, J., concurred. BarNArd, P. J., not sitting.

Order affirmed, with costs and disbursements.


source: Caselaw Access Project

author: Barnard, P. J.

license: Public Domain

text:
    THOMAS D. CANDY, Respondent v. ABRAM D. CANDY, Appellant.

      Breach of contract — meamre of damage' — Agreement to reside with person in consideration of hom'd, eta. — Bale of furniture made necessm’y hy so doing — loss upon such sale — cannot he recovered in action for breach of contract.

    Appeal from a judgment in favor of tbe plaintiff, entered upon tbe verdict of a jury, and from an order denying a motion for a new trial, made upon tbe minutes of tbe justice before wbom tbe action ' was tried.
    Tbis action was brought to recover damages sustained by tbe plaintiff in consequence of a breach, by tbe defendant, of a contract ■ by which tbe plaintiff was to live with, and take care of tbe defendant until bis death, and to receive therefor bis board and clothing and that of bis wife. At tbe time of making tbe agreement the plaintiff was keeping bouse in Philadelphia, and when be left there in order to reside with tbe defendant at the latter’s residence at East Hampton, Suffolk county, New York, be sold bis furniture, alleged by him to be worth $470.13, for fifty-one dollars. Tbis loss be sought to recover in tbis action, as one of tbe items of . tbe damages sustained by him through tbe breach of tbe contract.
    Tbe court at General Term said: “I have not been able to discover any case which authorizes tbe recovery of tbe alleged loss upon tbe sale of plaintiff’s furniture in Philadelphia. Assuming tbe agreement as proven by plaintiff, be was to remain with defendant during bis natural life, to take care of him and be bis companion, ‘for which service I was to receive tbe board and clothing for myself and wife.’ Tbe sale of tbe furniture was one of the sacrifices which plaintiff made to be able to enter into tbe contract. Defendant did not agree to pay tbe loss on tbe sale of tbe furniture, nor did be request a sale to be'made at a sacrifice. Tbe loss upon tbe furniture did not in any sense result from a breach of tbe contract. Tbe defendant did not agree to restore tbe furniture sold, in case of a breach of tbe contract by him. Tbe furniture did not enter into tbe contract, nor does tbe loss upon tbe sale thereof flow from tbe breach of tbe contract. It was, therefore, error to admit tbe proof of loss on tbe sale by plaintiff, under defendant’s objection.
    Tbe judgment should be reversed and a new trial ordered, costs to abide event.”

      J. Lcmrenae Smith, for tbe appellant. JE. A. Ga/rpmter, for tbe respondent.
   Opinion by

Barnard, P. J.

GilbeRT, J., concurred. Dyeman, J., not sitting.

Judgment and order denying new trial reversed, and new trial ordered, costs to abide event.


author: Pykman, J.

text:
    BERNARD SHERIDAN, Appellant, v. STEPHEN C. JACKSON and others, Respondent.

      Receives' — right of a person not a pa/rty to the action in which a receiver was appointed, to maintain action against him for money collected.

    Appeal by tbe plaintiff from a judgment dismissing bis complaint, and also from an order granting extra allowances and costs to four of tbe defendants in the action.
    . Tbe plaintiff alleged in bis complaint that on tbe 19th day of November, 1856, be was entitled to tbe possession of certain lands and premises which are particularly described, and to tbe rents, issues and profits thereof, and that be has ever since been so entitled and still is. That, in January, 1870, an action was commenced in tbe Supreme Court, in which all tbe defendants (but not tbe plaintiff) in this action were parties, except tbe receiver Cameron, some as plaintiffs and tbe others as defendants, in which tbe rights and interests to and in tbe said lands and premises, and tbe rents and profits thereof as between those parties were litigated. That tbe defendant Cameron was appointed by tbe court a receiver of tbe rents, issues and profits of tbe premises in that action, and that as such receiver he had received certain rents and profits amounting to a large sum. That the plaintiff had demanded the money so received from the receiver, which he had refused to pay.
    The complaint then asked that the receiver account to the plaintiff for all the moneys received by him in that action as such receiver, and that he be restrained from paying the same to any other person during the pendency of this action. No demand was made for the recovery of the premises or any part of them.
    The case came on for trial at Special Term, and the plaintiff’s counsel admitted that no permission had been given by the court to commence this action; .that the plaintiff had been out of possession of the premises for several years last past, and that during that time the defendants had been in possession of the same, until 'the appointment of the receiver in that action. That the plaintiff was not a party to the action in which the receiver was appointed. The court thereupon dismissed the plaintiff’s complaint, and judgment was entered against him, on the ground that the facts which it alleged did not constitute a cause of action in favor of the plaintiff, and because, taken in connection with the facts which were admitted on the part of the plaintiff, it appeared that he ha'd no cause of action.
    The General Term said: “ The receiver holds the fund now in his hands, subject to the order of the court, and that order can only be made with reference to the rights and interests of the parties to the first action, after those rights are determined therein; at all events the plaintiff shows no right to have the fund divested from that direction. To say simply that he is entitled to this fund, in view of all the facts disclosed, is not sufficient. It appears that the defendants claim the rents, and that the receiver holds them subject to the determination of their claims, and yet the plaintiff wants a judgment against the receiver alone that shall give him the fund. He does not want his right to it as between him and the defendants determined. He does not want any relief as against the other defendants at all. He does not even ask any adjudication in respect to his right to the rents, but assumes that he is entitled to them, and that the receiver was bound to pay them over to him on demand precisely as if they were moneys had and received for the plaintiff. We think the court below was right in dismissing the plaintiff’s complaint, and that the judgment appealed from must be affirmed, with costs.
    An additional allowance of $350 was granted to four of the defendants, and the plaintiff has appealed from that order. Whether the defendants should have costs or allowances, was entirely in the discretion of the court. It is quite true that such discretion can be controlled by the court in banc, if it was unreasonably or improperly exercised; but we do not think it was. The plaintiff had brought these parties into court on a very weak pretense of right, and then stated a case which showed he ought not to recover. TJnder these circumstances, we think it was very proper for the court, as far as possible, to indemnify these parties by costs and reasonable allowances.
    The judgment and order appealed from must be affirmed, with costs.”

      Oul/oer & Siroud/y, for the appellant. Edma/rd M. Shepard, for the respondent Jackson. JoTm Andrews, for respondents G. A. Andrews 'and others.
   Opinion by

Pykman, J.

Barnard, P. J., concurred. Gilbert, J., not sitting.

Judgment and order affirmed, with costs.


author: Gilbert, J.

text:
    THE LONG ISLAND RAILROAD COMPANY, Appellant, v. JAMES BENNETT and others, Commissioners of Highways, etc., and others, Respondents.

      Chap. 287 o/1874 — constitutionality erf — Bight of eminent domain — notice to persons affected, hy wrnxise of — Damages — measure of — assessment of — wpon property

    Appeal from a judgment at Special Term in favor of the defendants.
    The action was brought to restrain the defendants from opening and grading Eront street, between West First and West Second streets, in Long Island City, and from assessing upon or collecting from the property or premises of the plaintiff the damages or expenses of opening said street, and to bave tbe act of tbe legislature under wbicb tbe defendants claim authority to act, viz., an act entitled “An act to provide for tbe opening of Front street, in Long Island City, Queens county,” passed April 29, 1874, and tbe acts of tbe defendants thereunder declared unconstitutional and void, and said defendants restrained from exercising any authority sought to be conferred by said act.
    This act, by its terms, authorizes tbe commissioners of highways of Long Island City to open said street, authorizes tbe application for appointment of commissioners to assess tbe damages, and directs tbe damages and expenses of grading to be assessed upon and collected from tbe lands adjoining benefited thereby, and paid out to tbe parties entitled thereto.
    Tbe court at General Term said: “ Tbe proceedings, in this case, to take tbe land are .expressly authorized by chapter 287 of tbe Laws of 1874:, but tbe validity of that statute is assailed on tbe ground that it violates tbe Constitution; because, first, it contains no provision requiring notice to be given of tbe application for tbe appointment of commissioners to appraise tbe land taken for tbe improvement, and to impose tbe assessment for tbe expense thereof; second, tbe area of assessment is limited to tbe lands adjoining benefited by tbe improvement, and tbe amount of tbe assessment is not restricted to tbe amount of benefit which said lands will derive from tbe improvement ; and third, it does not provide, with sufficient certainty, for tbe payment of tbe compensation to be awarded for tbe property taken.

      We think neither of these objections is well taken. The Constitution does not require notice of tbe application for tbe appointment of commissioners. It appears, however, that notice was given by publication and tbe plaintiff appeared. That was a waiver of tbe objection and rendered it unavailing. (Dyokmcm v. The Mayor, 5 N. Y., 441; People v. Qwigg, 59 id., 83.)
    Tbe court below has found that tbe plaintiffs are tbe sole owners of tbe land adjoining tbe street to be opened, and tbe statute cited provides that tbe damages wbicb they will sustain by-tbe taking of their land for tbe street, together with tbe expense of grading tbe street, shall be assessed upon such adjoining lands. This, I agree, is a bard mode of making compensation; but, if lawful, it must be certain and adequate. That it is lawful seems to be settled in this State. (Immgston v. The Mayor, 8 Wend., 85.) In that case it was beld, by tbe late Court for the Correction of Errors, that the benefit, accruing to a person whose land was taken for a street, might be set off against the loss or damage sustained by him by the taking of his property; and, if equal to the damage or loss, it was a just compensation for the property taken to the extent of such benefit. In this case the plaintiff’s damages must be so much less than the benefit which they will derive from the improvement, as the amount it will cost to grade the street.”
    Vcmderpoel, Oreen <& Ovmmg, for the appellant. Edga/r M. Cullen, for the respondents.
   Opinion by

Gilbert, J.

Barnard, P. J., and Dyehan, J., concurred.

Judgment affirmed, with costs.


author: Dykman, J.

text:
    In the Matter of DAVID R. RYERS and others, Commissioners, etc., for Audit of Accounts.

      County judge — when interested, may request judge from wnotlwr county to hold cov/rt.

    Appeal from an order of the County Court of Richmond county, auditing and confirming the accounts of certain drainage commissioners, appointed under chapter 888 of the Laws of 1869, amending the Revised Statutes in relation to drainage lands.
    The court at General Term said: “ There was no error committed in the reception or exclusion of evidence, and none is complained of by the appellants. No complaint is made of any want of notice, nor of any irregularity in the proceedings, nor that the proceedings were not conducted in precise accordance with the requirements of the law. There is, however, a question of law raised by this appeal which has relation to the organization of the court which made the order appealed from. The county judge of Richmond county was disqualified from acting by reason of interest, and he made an order requesting the county judge of Kings county to hold the court at which these proceedings were had, and an objection is now made that this was irregular, and that the county judge of Kings county could not preside at the court. The objection is, that the county judge of Richmond county, being interested in the lands proposed to be drained, cannot designate the county judge who shall preside at the court which investigates these accounts. If this objection is well taken then the court was not properly constituted, and the order appealed from is not valid. By section 20 of the amendment of 1811 (chap. 303), it was enacted that: £In case the county judge of any county where such proceedings are, or shall heretofore be, pending shall be personally interested in such proceedings, it shall be his duty to require the county judge of some other county to hold County Courts for the purpose of this act.’ Again, the amended judiciary article in our present State Constitution provides: £ The county judge of any county may preside at Courts of Session or hold County Courts in any other county, except New York and Kings, when requested by the judge of such other county.’ It will be seen by these provisions that a county judge of one county may preside at County Courts and Courts of Sessions in any other county in the State, except New York and Kings counties, but that he can only do so at the request of the county judge in whose county he is to preside. No disability is imposed upon a county judge who is interested in a matter to be investigated or adjudicated, which prevents him from calling another county judge to preside in his stead in such a case, for the very obvious reason that such interest will, in a very great majority of instances, be the sole and only cause for his making such a call; and, as there is no provision for making such requisition in any other way, or by any other person than the county judge, it would follow that no call could be made in any case where the county judge was interested, if the construction contended for by the appellant is the correct one. Whereas it will happen in practice that these are mostly the cases in which it is desirable such call shall be made. Besides, there is no reasonable objection to such a course. The county judge called will stand indifferent, though the one calling him does not, and the ends of justice will be accomplished by thus setting up an indifferent judge. The foregoing reasons satisfy us that the objection is not well taken. There are no other questions raised, by this appeal, and the order appealed from must be affirmed, with costs.”

      George P. Avery, for the appellants. George J. Greenfield, for the commissioners, respondents.
   Opinion by

Dykman, J.

Barnard, P. J., and Gilbert, J., concurred.

Order affirmed, with costs and disbursements.


text:
    WILLIAM VON SACHS, as Assignee in Bankruptcy of JOHN F. SCHEPELER, Appellant, v. GEORGE C. KRETZ and others, Respondents.

      Statute of Imitations — effect cf bankruptcy of debtor on running of— Oounterr-alaim, in action by assignee in bankruptcy — reply to, by assignee.

    Appeal from a judgment in favor of the defendants, entered upon the report of a referee. This action was brought by an assignee in bankruptcy to foreclose a mortgage. The defendant set up in his answer a counter-claim, to which no reply was made. The plaintiff insisted that the counter-claim was barred by the statute of limitations. As to this, the court at General Term said: “ It is contended by the plaintiff that the statute of limitations is a bar to the defendants’ set-off. It was not barred when the plaintiff became assignee in bankruptcy. He is, in effect, a trustee for the creditors of the bankrupts. The statute of limitations may have barred the right of action against the bankrupts, without affecting a set-off which existed at the time of the adjudication in bankruptcy. For the bankrupt act provides that, in all cases of mutual debts or mutual credits, the balance only shall be allowed or paid. (U. S. Rev. Stat., '§ 5073.) The statute of limitations does not extinguish the debt, but only bars the remedy. The debt may be revived by a subsequent promise without any new consideration. In this case six years had not elapsed, after the defendants’ cause of action accrued, when the adjudication in bankruptcy was made. It does not appear whether the bankrupts were discharged or not. The bankrupt act provides that suits against tbe bankrupt shall be stayed, pending the proceedings in bankruptcy. (U. S. Rev. Stat., § 5106.) During the continuance of this statutory prohibition (which, for ought that appears, may still be in force), the statute of limitations did not run. (Code, § 105.)
    We think, therefore, that the defendants’ set-off was not barred. {Pa/rher v. Smiborn, 7 Gray, 191.) Nor was the plaintiff at liberty to take that objection. The defense falls within the definition of a counter-claim to which a reply must be put in. The plaintiff did not reply, and therefore admitted the defense. (Islictm v. Dmiclson, 52 N. Y., 237; Code, § 168.) ”

      James K. Hill, for the appellant. JoJm H. Bergen, for the respondents.
   Opinion by

Gilbert, J.

Barnard, P. J., and Dykman, J., concurred.

Judgment affirmed, with costs.


author: Davis, P. J. DANIELS, J.:

text:
    ALFRED CLOCK, Administrator, etc., Appellant, v. HENRY W. CHADEAGNE, Respondent.

      Administrator• — accounting by — next of Icin must be pa/rties to — Statute of limitations— how interposed in such proceedings.

    Where one of the next of kin of a deceased person, entitled to a distributive share of his estate, calls the administrator to an account, and, upon the hearing, claims to be entitled, by assignment, to the shares of three of the other next of kin, it is error to direct that the amount of said shares should be paid over to him, unless the persons originally entitled thereto are made parties to the proceeding, as otherwise the decree would afford no protection to the administrator.
    A surrogate cannot entertain proceedings instituted by one of the next of kin of a deceased person against an administrator, to enforce the payment of a distributive share of the estate of the deceased, when such proceedings are not commenced before the expiration of the time within which the distributee might have brought an action under section 9 of 2 Revised Statutes, 114 In such proceedings, no formal written pleading is necessary to entitle a party to the protection of the statute, but it must be set up or urged before all the evidence has been taken, so that the claimant may have an opportunity to introduce evidence which may relieve him from the operation thereof. (Per Davis, P. J., and Daniels, J.)

      Yarn Ylech v. Burroughs (6 Barb., 341)-followed.
    Appeal from a.decree of the surrogate of the county of New York, confirming the report of the auditor appointed to settle the accounts of the appellant, as administrator of Elizabeth W. Sibell, deceased, and ordering the said administrator to pay certain distributive shares of the said estate to the respondent; and, also, an appeal from an order of the surrogate denying a motion to amend and correct the minutes of the auditor.

      Geo. H. Adams, for the appellant.

      Lewis Beach, for the respondent.
   Davis, P. J.

On the 5th of May, 1855, the appellant was appointed administrator de lords non of the estate of Elizabeth W. Sibell, deceased: On the 16th of May, 1871, the respondent, as one of the next of kin, entitled to a distributive share in the estate of said deceased, filed his petition, averring that more than eighteen months had elapsed since the appointment of the appellant as such administrator ; that he had never made any account as such administrator, and praying an order requiring him to render an account of his proceeding, and to show cause why he should not pay the petitioner the amount due to him by reason of the premises stated in the petition. The surrogate, on that day, made an order accordingly. The appellant appeared pursuant to said order, and produced an account, sworn to the 6th day of April, 1868, which appears to have been made to the surrogate and filed in his office at or about that time, and added thereto a further account of two items of expenses which he claimed to have paid on proceedings for the final settlement and allowance of his account above mentioned. To these two accounts, thus presented, the respondent filed numerous objections. Thereupon, án order was made referring the account to a. referee and auditor, to hear the same and report his proceedings with all convenient speed to the surrogate. No steps were taken for a final settlement of the account, either on behalf of the appellant or of the respondent, and no citations were issued to the heirs and next of kin of the intestate. On the hearing before the auditor, the respondent, in addition to his own claim to a distributive share, as next of kin, claimed to represent and own, as assignee, the distributive shares, as next of kin, of four other persons who were not cited in the proceeding, and did not appear. In respect of two of these persons, one of whom was deceased, the respondent testified on his own' behalf, that he had received assignments of their shares in writing, which he did not produce before the surrogate, but stated that he had left them some years before in the hands of one Fowler, and did not now know where they were; and in respect to the other two shares, he testified that the parties had given their. interest to him, and verbally assigned them before these proceedings were commenced. Upon this evidence, the auditor allowed to the respondent all of these four shares out of the amount which he found due from the administrator, in addition to his own; his own being twenty-two dollars and twenty-six cents, and the other four amounting to $278.26 These allowances were excepted to, but the exceptions were overruled and the report of the auditor confirmed by the surrogate. We think the allowance of the shares upon the alleged assignments, was altogether improper. None of the next of kin having been cited or appearing on the hearing, the decree, as against them, would establish nothing, and would be no protection to the appellant as against any further proceedings that they might institute to recover their distributive shares.' Before such a decree could be made, it would be essential that the alleged assignors, as next of kin, should be cited and brought in as parties to the accounting. This question was properly raised by the exceptions to the report.

The auditor also charged the appehant with interest on the sum of $999.59 from the 24th of August, 1856, to the 16th of May, 1861, amounting to $330.30. This is upon a sum received by the administrator on the 24th of July, 1856, and the auditor charged him with interest at the expiration of one month from the date of its receipt. But it appears that a suit was brought against the appehant in which a claim was set up for the whole of the amount so due, and a recovery was had against him on which he paid $600. No reason whatever was shown for the allowance of interest, except the fact that the appellant kept the money on deposit in a bank in the account of his firm of “ Clock & Miller,” he keeping no separate account. But no evidence was given that it was ever, in fact, used in the business of that firm, or that the administrator ever received any interest for its use in any form whatever. The naked fact that he deposited the money in a bank under the circumstances stated by him, without additional proof that it was used for his benefit or tbe benefit of bis' firm, or that be received interest on it, would not justify charging him with interest pending the period of the litigation in which it was impracticable to have made a settlement, so that the next of kin could receive any distributive shares. The charging of this interest upon such evidence as appeared before the auditor was improper.

The auditor also rejected both items of the subsequent account for proceedings upon the prior accounting. The result of that accounting is left indefinite. Nothing is shown as to what became of the proceeding; but one item of the account proved by the testimony of the appellant is twenty-five dollars for fees paid to the auditor on such accounting. That item, it seems to us, ought to have been allowed to the appellant.

The other item is for counsel fee paid to an attorney for legal services before the auditor. This was rejected, and its rejection, in the absence of further evidence in relation to the propriety of its allowance by the surrogate, was proper.. The auditor seems to have rejected the charges of $190. for legal services in the appellant’s account. Vouchers were'not produced for them; the rejection was, therefore, correct. But if they accrued in the course of the defense of the suit against the estate, and were reasonable and proper, and were necessarily expended in such defense, the appellant should have been allowed them upon proper evidence of their actual payment. His failure to produce that evidence, of course, justified the auditor in their rejection.

The auditor also allowed to the respondent compound interest on the amount, of his own and the other distributive shares allowed to him from the 16th day of Hay,. 1861, to the date of his report, amounting to $511.73. This, however, the surrogate rejected. The respondent, in his answer to the petition, alleges this rejection as error, and insists that the decree of the surrogate, in that respect, should be reversed, and the allowance of compound interest by the auditor should be confirmed. We think, however, that the surrogate was entirely correct in disallowing compound interest; and it is very doubtful whether the allowance' of simple interest, which was made by the surrogate, should be sustained, inasmuch as it appears that a considerable part of the amount which the surrogate has now charged had been paid out by the appellant, from time to time, as early as 1863, and did not remain in bis bands so tbat interest conld have been received upon it by him.

Tbe very great delay of more than fifteen years after tbe estate should bave been closed in taking any steps for tbat purpose, on bebalf of tbe respondent or any other of tbe next of kin, taken in connection with tbe fact tbat tbe fund bad been almost wholly paid out upon claims which be, doubtless, supposed to be just and proper, may properly be considered as excusing him from tbe charge of interest prior to tbe time when tbe demand was made upon him by tbe respondent.

Tbe statute of limitations was urged upon tbe auditor when tbe case was submitted to him, after the' evidence was closed. It was also insisted upon, in tbe exceptions before tbe surrogate, upon tbe bearing, on tbe motion to confirm tbe auditor’s report. That tbe statute of limitations may be used as a bar to such an accounting, as was sought for in this case, is established by the Court of Appeals in Clark v. Ford (1 Abb. Ct. App. Dec., 359); and in McCartee v. Campbell (1 Barb. Ch., 465). Tbe decision in McCartee v. Campbell is cited and distinctly approved by tbe Court of Appeals in Clark v. Ford. Section 9 of 2 Devised Statutes, page 114 gives a right of action at the expiration of one year from tbe granting of letters of administration, if there be more than sufficient assets in tbe hands of tbe administrator to discharge tbe debts of tbe intestate. Nearly eighteen years bad expired before tbe respondent commenced bis proceedings after tbe time when bis right to maintain tbat action bad accrued. It is claimed tbat tbe present proceedings are a continuance of tbe proceedings commenced in 1868, but tbat is not correct in point of fact; for, according to tbe papers, this appears to bave been an entirely new and original proceeding to compel tbe accounting, and not tbe continuance of some former proceeding in which an accounting bad already been bad. But it is insisted tbat tbe statute of limitations was not set up in time to avail tbe appellant. Formal written pleadings are neither customary, nor are they required in Surrogates’ Courts (Smith v. Remington, 42 Barb., 75), and it has, in some cases, been held to be sufficient to allege defenses by way of exceptions to tbe auditor’s report. But the latest case bearing on this question, which is Van Vleck v. Burroughs (6 Barb., 341), bolds tbat tbe plea of tbe statute must be set up or urged before tbe close of tbe evidence, so that tbe claimant may bave opportunity to contest tbe same by proof wbicb may relieve bim from tbe operation of tbe statute. Tbis we regard as tbe more just and sensible rule.

TJpon tbe other grounds above suggested, tbe decree .should be reversed, and tbe proceedings remanded to tbe surrogate for a new bearing, upon tbe petition and account, and with leave to interpose tbe plea of tbe statute, with costs to abide event.

DANIELS, J.:

Tbe appeal taken in tbis cause is from tbe decree of tbe surrogate made on tbe final settlement of tbe administrator’s accounts. Letters were issued to bim on tbe 5th of Hay, 1855, and tbe order requiring bim to appear and show cause why be should not pay tbe distributive shares of tbe estate, claimed by tbe respondent, was made on tbe 16th day of May, 1874:. An account of tbe estate was made and filed by bim on or about tbe 6th of April, 1868, and that was again presented as bis account, when be appeared pursuant to tbe order referred to. On or about tbe 12th of February, 1875, a supplementary account was also presented by bim for payments made by bim for auditor’s fees and counsel fees on tbe accounting after tbe account was first filed. On tbe 6th of October, 1874:, tbe bearing and auditing of tbe account was referred to an auditor before whom tbe parties appeared on tbe 26th of February, 1875, and proceeded with tbe bearing. From that tbe auditor found that tbe respondent, in bis own right and as assignee of other persons who were nest of kin of tbe intestate, was entitled to be paid tbe sum of $300.52, besides interest, and 'that tbe interest should be compounded on that balance from tbe 16th of May, 1861, until tbe date of tbe report. Tbe charge for compound interest was afterwards rejected upon a bearing bad upon tbe report before tbe surrogate.

It was also claimed that tbe charges made in tbe supplementary account, and disallowed both by tbe auditor and tbe surrogate, ought to bave been credited to tbe administrator. They were specifically objected to, not because tbe payments bad not been made as they were charged, but as being wrongfully incurred in resisting tbe accounting then commenced; and for tbe same reason they were rejected by tbe auditor. But no evidence whatever was given showing that these expenses had been incurred in that manner. On the other hand, the evidence very decidedly tended to show that they had been incurred and paid in the orderly course of the proceedings which had then been instituted, and, for some unexplained reason, were not completed; and they should have been allowed as proper credits in favor of the administrator.

It was claimed, on the hearing had .before the surrogate, that the administrator was protected against all obligation to account by reason of the lapse of time intervening between his appointment and the commencement of these proceedings; and as to that he was probably correct. But no objection of that kind was, in any form, taken or presented until after the hearing was had before the auditor, and the case was ready to be submitted for his decision and report. It has been held that no formal proceeding in the nature of a pleading is necessary for the purpose of entitling a party to the protection of the statute in proceedings before the surrogate. (Smith v. Remington, 42 Barb., 75 ; McCartee v. Campbell, 1 Barb. Ch., 456, 465.) But these authorities do not justify the position that the objection may be omitted until after the evidence has been all taken, and when urged, for the first time, upon the argument that it must be allowed to prevail. That would be unjust to the distributees claiming the estate, for it would deprive them of all opportunity of showing that they had been subject to legal disabilities, or any other cause, which, by the terms of the statute, would prevent it from taking effect against them.

"When the statute is to be interposed as a defense to an action, it has been expressly provided that the objection can only be taken by answer. (Code, § 14.) And then the party may show as a reason why it should not be applied to the claim made by him, that he had been subjected to one or more of the disabilities which would suspend its operation; or that the administrator had been absent from the State, or imprisoned, or had, within six years, promised in writing to pay the demand made against him. (Code, §§ 100, 101, 102, 110.) And as far as the analogy of the proceedings before the surrogate will allow, the objection that they were not instituted in time, ought to be in some form taken while the other party may have the opportunity of protecting himself by proof, showing it inapplicable to his proceeding. No other course is just to the other party or consistent with the spirit of the provision made by the Code that the objection can only be taken by answer. The object of this provision was to protect the opposite party against surprise by reason of the objection. It was designed to afford him an opportunity to meet the objection whenever that could be done by any proper proof within his power. And even if the form of the provision cannot be observed by proceedings in the Surrogates’ Courts, its spirit and intent should be so far maintained as to.require the objection to be timely made while the case is open for proof. The objection is one which, in many cases, may be obviated by evidence, and it should accordingly be presented before the time for producing such evidence has passed. And it was so held in Van Vleck v. Burroughs (6 Barb., 341). In that respect it should be treated and disposed of, as other objections are required to be considered in the course of legal proceedings. The party taking it should be required to apprise his adversary of his design to do so, while he may have the means and ability to protect himself against it. (Fountain v. Pettee, 38 N. Y., 184; Levin v. Russell, 42 id., 251.)

That was in no form done in this case while the hearing was proceeding, but the objection was for the first time taken, when the briefs were presented to the auditor for his consideration. It came too late, and the administrator was, for that reason, justly deprived of the effect he might have derived from it if it had been presented when the respondent had the opportunity to meet and avoid it by the production of further proof. (Clinton v. Eddy, 54 Barb., 54.)

An application was made to the surrogate for an order that the auditor’s minutes should be so corrected as to show that the objection that the proceeding was not taken in time had been made before him. The success of the application rested in the discretion of the surrogate, and as the objection was delayed until the parties had closed their proofs and met to finally submit their case, it was properly denied. It would have been unjust to the respondent to place the proceeding in such a form as to give the administrator the benefit of the objection, even if that could have been done by such an order, when the time for avoiding it by evidence, on the part of the other party, had expired. And that would have been the effect if the application had been permitted to prevail. Its allowance was within the power of the surrogate. (Partridge v. Mitehell, 3 Edw. Ch., 180.) But the sound exercise of it was exhibited by the denial which was made.

The case is entirely different from that of Dakin v. Demming (6 Paige, 95), where the objection that the surrogate had no jurisdiction of the subject-matter was allowed to be first presented on the hearing of the appeal. The objection arising upon the statute of limitations was not of that description, and could not be deferred in that manner by any support afforded to it by this decision.

The respondent made proof before the auditor, which had a tendency to show him to have received an assignment from some of the other next of kin. But, as to two of them, the transfer was claimed to have been by way of gift merely. There was no delivery of any account, order, or direction in writing that he should receive any portion of the share of either. All that was done was limited to mere words, that the applicant might have their shares, each of which was under the sum of fifty dollars. This was not enough to effect a transfer of them. To consummate a gift there must be a delivery of the article given, or of some symbol or substitute for it. That was not done in this case, and therefore no effectual transfer of these shares was shown. As to the others, the evidence, was materially defective. But, as no objection was taken to it on that account, the auditor may have been warranted in acting upon it as he did.

In the other respects mentioned, and also because the next of bin still appearing to be interested were not made parties to the proceeding, the necessity for which has been shown in the opinion of the presiding justice, the decree should be reversed, and a further hearing directed before the surrogate, with costs to abide the event.

Beady, J., concurred in the result.

Decree reversed; proceedings remanded to the surrogate for new hearing upon the petition and account; with leave to interpose the plea of the statute; costs to abide event.


author: Davis, P. J.: Brady, J.

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. JAMES SKAHAN v. THE BOARD OF POLICE COMMISSIONERS OF THE CITY OF NEW YORK, Respondent.

      Qe/rlwrairi — Bow'd of police commmiorw's of New York — trial befoi'e.

    On the return to a writ of certtoi'a/ri, issued to review an order of the defendant, removing the relator from the police force of New York, it appeared that the relator was tried, upon charges preferred by his captain and sergeant, for neglect of duty, in failing to arrest two men fighting in the street, and with using improper language to Police Commissioner Erhardt when reproved therefor. The relator was brought before Commissioner Erhardt for trial, and, having been sworn,- was asked what he had to say as to the charges, and testified in relation thereto. No other witnesses were examined. Erhardt made a report to the full board, and by the latter the relator was found guilty of a neglect of duty in failing to arrest the men, Erhardt not voting. Neld, that the proceedings were regular, and that, as Erhardt was not the complainant, and was not examined as a witness, he was clearly not incapacitated from taking and reporting the testimony of the relator. (Brady, J., dissenting.)
    Certiorari to review an order of the board of police commissioners, removing relator from tbe police force of tbe city of New York.

      Wm. F. Howe, for the relator.

      Ohwrles F. MaoLeam, for tbe respondent.
   Davis, P. J.:

Tbis case is brought to a bearing upon tbe return to tbe oertiora/ri. No issue has been taken by tbe relator upon any of tbe facts alleged in such return. Tbe court is not, therefore, at liberty to look behind tbe return for any of tbe facts of tbe case.

Tbe return shows that tbe relator was charged by tbe captain and sergeant of tbe twenty-ninth precinct, “ with neglect of duty, and conduct unbecoming an officer.”

Tbe specifications under tbis charge were, in substance, that tbe relator, while on bis post, beard tbe cry of “police,” and .saw two men fighting in tbe street, and acting in a disorderly manner, and failed to arrest said men then, but subsequently did arrest one of the men, but failed to make a complaint against him at the station-house that would warrant his detention by the sergeant in charge,

Second, that on the relator’s attention being called by Commissioner Joel B. Erhardt to the two men fighting, he used words unbecoming an officer and gentleman, to wit: “What in hell is it of your business,” or words to that effect.

Due personal service of the charges and specifications and of the notice of trial for the 3d of November, 1876, were admitted. On the third of November, the hearing was adjourned to the ninth, and on the ninth it was adjourned again to the sixteenth of November, on which day the hearing was had before Commissioner Erhardt, the charge was read to the relator, and he was sworn. No other testimony was taken, and his statement was laid before a full board of' the commissioners, in accordance with rule 131 of the board, regulating the hearing of such charges.

The board found the relator guilty of the charges and ordered his removal. The return states that all the commissioners concurred in the finding and order except Commissioner Erhardt, who did not vote. So far as relates to the first specification, the evidence of the relator himself shows a clear neglect of duty. He saw disorderly persons fighting in the street, and neglected to arrest them; and afterwards, when he arrested one of them upon a charge made by the other that the former had stolen a pistol from him, he neglected to make any charge at the station-house that warranted his detention.

The commissioners thought the excuses made by him were insufficient. We concur in that view, for it was the plain duty of the relator to have arrested the persons guilty of disorderly conduct in the street at once, and to have made proper charges against them. But if we did not concur, nevertheless the evidence was sufficient-to.call for .the judgment of the commissioners, and their conclusions of fact and' as to the sufficiency of the excuses are not so wholly unwarranted as to justify our interference.

It was objected that the relator was tried before Commissioner Erhardt, who was himself a witness of the transaction, and to whom the improper language is charged to have been used.

But the commissioner was not called as a witness on the hearing, and he does not appear to have been the complainant, or even to have instigated the complaint. If he had made the complaint, that act would have been in the line of his duty, and would not necessarily have disqualified him from investigating the charges.

But it appears, in this case, that he only took the testimony of the . relator and submitted the same to the full board, and did not vote upon the question of conviction. The trials of this class of cases are summarily conducted without the formalities of courts of law, and it is enough that it appears that the case is one in which the board of commissioners had jurisdiction of the subject-matter of the charges and of the person of the accused, and that coTnpetent evidence was given which called for the exercise of their judicial functions. (Haines v. Smith, 45 N. Y., 776 ; People ex rel. Cook v. Board Police, 39 id., 506 ; Mullins v. People, 24 id., 399.)

The proceedings should be affirmed and the writ dismissed, with costs.

Daniels, J., concurred.

Brady, J.

(dissenting):

The relator was charged with dereliction of duty. On the day of his trial, and before any witness was sworn, and before any proof was given against him, he was sworn, and asked what he had to say to the charges preferred against him.

Commissioner Erhardt, who would be, and necessarily so, a witness as to one of the charges, presided alone at the trial, and received and reported the evidence to the full board. He did not vote on the final disposition which was made of the case. The relator was asked questions concerning the alleged insubordination in regard to Commissioner Erhardt, and the testimony in reference to that charge, as •well as the other, was thus elicited from him. This mode of procedure, I think, is erroneous. The relator was entitled to confront the witnesses against him, and to answer the proofs. Such was not the case. He was sworn, and then asked what he had to say to the charges, which, by such a proceeding were assumed to be true, and to have been substantiated by evidence. This was not the way to establish the charges, and should not be sustained. No charge should be made unless there is evidence to sustain it, and the witnesses should be called to prove it. This is the usual, the best, and, indeed, the only way in which such trials should be conducted, unless the person charged admits the accusation.

I think, for these reasons, the judgment was improperly pronounced. Commissioner Erhardt could not be both witness and judge for any purpose connected with the charges, although he did not intend to vote on the final disposition of the case. The whole proceeding was, therefore, erroneous, in my judgment, from the time of administering the oath to the relator.

Proceedings affirmed; writ dismissed, with costs.


author: Brady, J.:

text:
    AARON BARNETT and JACOB L. PHILLIPS, Appellants, v. ABE MEYER and AARON KOSTER, Surviving Partners of HENRY BODENHEIM, Deceased, Respondents.

      Amendment to ammw', setting up usury — allowance-of— Ohm-actor of defense not considered.

    In allowing amendments to answers, the court does not now regard the character of the defense sought to he interposed. Accordingly, held, that an order allowing an answer to he amended hy setting up the defense of usury was properly granted, and should he affirmed.
    Appeal from an order made at Special Term, allowing the defense of usxu-y to be set up by amendment to the answer.

      A. B. Dyott, for the appellants.

      Sa/rrmel Boa/rdmam.,, for the respondents.
   Brady, J.:

The court below allowed an amendment of the answer herein by setting up the defense of usury. The plaintiffs appeal, and the proposition advanced by their counsel is, that the application being to the favor of the court, and to its equitable powers, the application should be denied. He seems to assert that the cases do not allow such a proceeding, where the defense of usury was not originally interposed. Whatever may have been the earlier doctrine on the subject of what were called unconscionable defenses, it no longer prevails.

The rules which govern amendments are now to be regarded without reference to the character of the defense. None of the cases cited on behalf of the plaintiffs declare that such an amendment should not be allowed. In the case of Gasper v. Adams (24 Barb., 287), the application to amend was made after the trial before a referee, and a report made in favor of the plaintiffs, and was for a variance between the proof and the defense of usury set up; and the court thought, among other views expressed, that the section of the .Code under which the application was' made was designed to sustain, not to reverse, judgments.

The case does not decide the point under consideration, but is mentioned because it is the only one bearing indirectly upon the subject of this appeal. On the other side of the question we do find authority. In the case of the Bank of Kinderhook v. Gifford (40 Barb., 659), a default was set aside and the defendant allowed to answer, although the defense sought to be set up was that the note sued on was given for money won at play.

Judge Peckham, declaring the earlier rule as to what were termed unconscionable defenses, said the weight of authority was now the other way, holding that oh opening a default, properly excused, the court will not impose as a condition that the defendant shall not set up, as a defense, usury or the statute of limitations.

He expresses the opinion that the principle of the earlier decisions was wrong, and gives cogent reasons for the opinion. In McQueen v. Babcock (3 Keyes, 428), it was held that the defendant had the right, within the twenty days after service of the original, to amend the answer by setting up the defense of usury. The suggestion is made that all legal defenses stand upon the same footing.

In the case of Union National Bank of Troy v. Bassett, decided by the Supreme Court of the third district, at a General Term, which was composed of Justices Peokham, Miller and Hogeboom (see 3 Abb. Pr. [N. S.], 359), the precise question was 'considered and passed upon.

The defendant was allowed to amend his answer so as to set up this defense of usury, and the order was sustained on appeal. The subject is fully discussed, and tbe conclusion arrived at is in conformity with the Code and tbe authorities bearing upon tbe question.

Tbe order made at Special Term should therefore be affirmed, with ten dollars costs and tbe disbursements of this appeal.

Davis, P. J\, and Daniels, L, concurred.

Order affirmed, with ten dollars costs and disbursements.


text:
    ABRAHAM S. HERMAN, Respondent, v. HERMAN LYONS, Appellant.

      Off&i' of judgment — tidal of aetion before eeepiration of ten days— Oosts — Code, § 385.
    After issue had been joined in this action, and on the seventh of February, an offer to allow judgment to be taken against him was served by the defendant; on the ninth of February the cause was regularly called in its order on the calendar, an inquest taken therein, and the costs accruing subsequent to the offer taxed in plaintiff’s favor. Held,, that, as ten days had not elapsed from the service of the offer of judgment to the time of trial, the plaintiff was entitled to disregard the offer and to tax the costs thereafter accruing.
    Appeal from au order confirming an adjustment of costs by tbe clerk of tbe court.
    --, for tbe appellant.

      Simon H. Stern, for tbe respondent.
   Brady, J.:

Tbe defendant served’ an offer to allow a judgment to be'taken against him. Tbe service was made on tbe seventh February last. On tbe ninth tbe cause was regularly called in its order and an inquest taken, and tbe costs which accrued subsequent to tbe offer were taxed in plaintiff’s favor. If tbe offer served stayed tbe plaintiff’s proceedings, or imposed any obbgation upon him to act in reference to it at once, it might be said that be was not entitled to any indemnity for such subsequent proceedings. He owed no duty to tbe defendant, however, under tbe three hundred and eighty-fifth section of tbe Code; tbe plaintiff has, in all such cases, ten days to elect whether be will accept tbe offer or proceed to trial; and if tbe offer be served so late tbat tbe cause is reached and tried before tbe expiration of tbe ten days, tbe offer is unavailable to tbe defendant. (Pomeroy v. Hulin, etc., 1 How. Pr. R., 161; Walker v. Johnson, 8 id., 240 ; Lunker v. Richnagel [decided in tbis court February 25, 1859].) Tbe plaintiff herein, not having the ten days prior to tbe call of tbe cause in its regular order, was not obliged to pay any attention whatever to tbe offer. He could treat it as a nullity, which be did do, and proceed with bis action.

If tbe rule were otherwise, tbe service of an offer made when tbe cause was on tbe day calendar would prevent tbe plaintiff from proceeding to judgment, and might compel him to lose tbe term. Tbe adjustment and tbe order confirming it were right, and tbe appeal is of no benefit to tbe defendant.

Order appealed from affirmed, with ten dollars costs and tbe disbursements of tbe appeal.

Daniels, J., concurred. Davis, P. J., not sitting.

Order affirmed, with ten dollars costs and disbursements.


author: Beady, J.:

text:
    In the Matter of the HEBREW BENEVOLENT AND ORPHAN ASYLUM OF THE CITY OF NEW YORK, to Vacate an Assessment, etc.

      Assessments in city of New York — valuation by ward assessors — § 7, chap. 326 of 1840 — Irregularity in levying assessment— corrected under § 27, chap. 383, 1870.
    It is a sufficient compliance with the requirements of section 7 of chapter 326 of 1840 — providing that the commissioners or assessors for making estimates and assessments for any improvements in the city of New York, authorized hy law to he assessed upon the owners and occupants of houses and lots shall, in no case, assess any house or lot for more than one-half the value of the same, as valued hy the ward assessors in which the same is situated — that such house or lot has heen valued hy the ward assessors at any time previous to the imposition of the assessment.

      Accordingly, held, that where the property of the petitioners had been valued by the ward assessors in the years 1854, 1855 and 1856, an assessment might be imposed thereon in the year 1869, though no valuation had been placed thereon after 1856.

      Second Avenue Methodist Ghwrch (Court of Appeals, MS.) distinguished.
    An assessment, exceeding in amount one-half of the value placed upon the property by the ward assessors, is irregular only, and may be corrected under section 87 of chapter 383 of 1870.
    Appeal from an order made at tbe Special Term, denying a motion to vacate certain assessments imposed upon tbe property of tbe petitioners. Tbe assessments were imposed in 1869,1870,1872 and 1874
    Tbe petitioners acquired title to tbe property upon wbicb tbe assessment was imposed, seventeen lots, in tbe year 1860, and erected thereon a building used as a bouse of industry. Tbe property was never valued by tbe ward commissioners as required by section 7 of chapter 326 of 1810, after its acquisition by tbe petitioners.

      It appeared upon tbe bearing tbat tbirty-six lots,' including those of tbe petitioner, were valued by tbe ward commissioners in tbe years 1854, 1855 and 1856. Tbe total valuation of tbe petitioners’ lots, in tbe latter year, was $4,839.90.
    One of tbe assessments was for making a sewer in Seventy-seventh street, and amounted to $3,412.60.
    Tbe petitioners claimed tbat the assessments were invalid, because tbe lots bad not been valued by tbe ward commissioners at tbe time tbe assessments were imposed; and tbat, even if tbe prior valuation was a sufficient compliance with tbe statute, tbe assessment for tbe sewer in Seventy-seventh street was invalid, because it exceeded one-half of such valuation.

      Irvmg Wa/rd, for the appellants.

      I. A. Beall, for the city.

       Three other cases, The Mattel’ of the Second Baptist Chwrch of Esmiem, The Matter of the Central Presbyteriam Church, and The Mattel' of Congregation of Shea/ri Zedeh, were all decided at the same term upon the principle laid down in this case. — [Rep.

        The following case, involving the same question, was decided at this term:
      In the Matter of the Petition of St. JOSEPH’S ASYLUM to Vacate Assessment.
      Appeal from an order made at Special Term denying a motion to vacate an assessment.
      The petitioner, to maintain the issues on its part, introduced in evidence four assessment lists, by which assessment lists it appeared that an assessment was in each case imposed upon lots belonging to the petitioner.
      The petitioner proved the ownership of the premises assessed, at and prior to the date of the confirmation of said assessments, and ever since.
      That the value of said premises, as valued by the ward assessors in the years 1874, 1873, 1864 and 1863, was $0.
      The counsel to the corporation introduced the following proof, to which the petitioner duly objected and excepted:
      Extract from the records of taxes and assessments, for the year 1858, showing the last assessed valuation of the lots of petitioner, to wit, for the year 1858.
      It thereby appeared in proof that the several assessments numbered one, three and four did not exceed one-half the value of the lots as valued by the ward assessors in the year 1858. It also appeared that assessment number two did exceed one-half of such valuation.
      Petitioner requested the judge by. whom the proceeding was heard to order that the several assessments be vacated, which request was refused and petitioner excepted. The judge decided that assessment number two be reduced to one-half of the value of the lots as valued by the ward assessors in 1858.
      Petitioner requ ested the judge to order that upon the assessment as reduced, interest should run only from the date of the order reducing the same, which request was refused and petitioner duly excepted.

        Gharries JS. Miller, for the appellant.

        J. A. Beall, for the respondent.
      Davis, P. J.:

        In re The Church of St. Michael, which involved the same questions as in this case, Barrett, J., at Special Term, pronounced the following opinion: “Barrett, J. In The Second Am. M. B. Ohureh Oase, the city claimed that it did not appear ‘ that there was not a valuation for the term of five years before the trial.’ But, said the Court of Appeals, ‘it was not proven that there was.’ It is apparent that the case proceeded upon the tacit assumption that there had neves' been a valuation put upon the lots by the ward assessors or by their successors. ’
      “This maybe said to have been an intimation that if the citj had proved a prior valuation, the result would have been different. Here this is .proved, and thus partial justice, at least, may be done.
      “ It is urged that the legislature meant to limit assessments to one-half the valuation put upon lands by the ward assessors in the yecw in which the local assessment is laid. This may well have been the intent with respect to lands subject to general taxation, and which it is the duty of the ward assessors annually to value. It could scarcely have been the intent, however, with respect to. church property not subject to a taxation, for the duty of making a valuation m the yeas' in which the assessment is laid is not imposed upon the ward assessors.
      “The legislature has not expressly exempted church property from assessment for local improvements, and it cannot be that it intended to effect such exemption in this obscure and indirect manner.
      “It is more reasonable to assume a legislative intent to impose even a different (and probably reduced) rate of assessment on church property from that imposed upon adjoining property, than an intent in this roundabout way to impose no rate at all. The word ‘reduced’ is used advisedly because the old valuations for lands now used for church purposes áre very generally much less than could now be fairly made, especially in view of the addition of church edifices.
      “In the present case the city has proved a valuation by the ward assessors at a time when it was their duty to make such valuation. It is not pretended that such valuation is'unjust, or that the property has since depreciated.
      “The assessment must, therefore, be reduced in conformity to the proof, and as reduced sustained.”
      . "We think this opinion disposes of the several questions in this case correctly.
      It was held by the Court of Appeals, in The Matter of the Sec. Ave. M. E. Church, that under section 7 of chapter 326 of the Laws of 1840, lands could not be assessed for local improvement unless they had been previously assessed for the purposes of general taxation by the assessors of the ward in which they are situated. It is understood that that court has since held that by a subsequent statute such lands are subject to assessment for local improvement. "We think, however, that under the former of these decisions this case was rightly decided. The last assessed valuation of the lands in question was produced. That was made by the ward assessors in the year 1858. In respect of a part of the assessment, the amount imposed did not exceed one-half of said valuation. In respect of other parts, it appeared that the amounts imposed did exceed one-half; but the court below reduced the assessment in those cases to an amount equal to one-half .of the assessment of 1858. It cannot, in our judgment, be presumed that by section 7 of chapter 326 of the Laws of 1840 it was the intention to impose upon other lands benefited by a local improvement all the burden of such improvement, where such benefits were shared equally by lands which could not be assessed for general taxation. The intention was to fix a limit beyond which assessments for local improvements should not be extended upon the premises benefited thereby. That limit is expressed by the section as one-half of the value of such house, lot, improved or unimproved land, as valued by the assessors of the ward in which the same shall be situated. There is nothing in the section to require that such valuation by the assessors shall be made in the same year with the assessment for improvements or at any other particular time. It is enough if such valuation has been made by the assessors at any time when they had lawful power to act upon the subject. The fact that they had made such valuation was proved in this case, and the other fact that since that time, by change of ownership and occupancy, the lands had become legally exempt from general taxation, and so had not been valued for that purpose, does not at all change or affect the force of the valuation made when they were subject to general taxation. The court disposed of the question without any conflict with the decision in The Matter of the M B. Church and in accordance with the right and justice of the case.
      For that reason the order of the court below should be affirmed, with ten dollars costs and disbursements.
      Daniels and Brady, JJ., concurred.

   Beady, J.:

The petitioners claim, that there never was any valuation placed upon the property which they own, and that their case falls directly within the decision made by the Court of Appeals in The Matter of the Second Avenue Methodist Church, decided in June, 1876, and which went up from this court. They also claim that the assessment for the sewer in Seventy-seventh-street should be vacated, as it is based upon an estimate exceeding one-half of the valuation of the property assessed, as shown by the corporation, and inasmuch as the court has no power to order a reduction of the amount unless authorized by the charter of 1870, which is denied.

The first premise is unfounded, because the facts do hot warrant it. There had been an assessed valuation of the property prior to the imposition of the assessments, namely, in 1851, 1855 and 1856, and this fact, it was determined by the court below, removed it from the operation of the decision made in the Court of Appeals. This view seems to be correct. The court said in that case: “ It is apparent that the case proceeded upon the tacit assumption, that there had never been a valuation put upon the lots by the ward assessors or their successors.” And again: “ The authority to the city, in the purview of the proviso, is no more than to assess for local improvements all property benefited' thereby, when that property has been previously valued by the general tax assessing officers.” The proof was made, therefore, by the city of a previous and duly assessed value by the proper officers, which furnished the link which was omitted in the case of the Second Avenue Methodist Church, and makes the assessments valid.

In reference to the assessment for a sewer in Seventy-seventh street, it seems to be conceded that the impost was based upon an erroneous valuation of the property, being in excess of one-half of its assessed value. This does not render it necessary to vacate the assessment. There can be no doubt that it may be reduced under the provisions of the charter of 1870. (Laws 1870, page 903, chap. 383, § 27.) There is nothing, in the judgment of the Court of Appeals, in tbe Second avenue case affecting this question. Tbe lack of authority to impose an assessment, wbicb was declared in tbat case, is given here by tbe proof suggested, and bence tbe assessment in excess is an irregularity only.

Tbe order should be affirmed, therefore, except as to tbe assessment for tbe sewer in Seventy-seventh street, and as to tbat it should be reduced to tbe proper sum.

Ordered accordingly, without costs to either party on this appeal.

Davis, P. J., and Daniels, J, concurred.

Order affirmed, except as to tbe assessment for tbe sewer in Seventy-seventh street, and as to tbat reduced to tbe proper sum, without costs to either party.


author: Daniels, J.:

text:
    THE WASHINGTON LIFE INSURANCE COMPANY, Respondent, v. JACOB FLEISCHAUER and others, Appellants.

      Foreclosure suit — appointment of receiver in, on application of subsequent incwmb’ancer — •who entitled to a/mount collected.

    Where, in an action brought to foreclose a mortgage, a subsequent incumbrancer, who is made a party defendant thereto, applies, in bis own behalf for, and secures tbe appointment of a receiver of the rents and profits of tbe mortgaged premises, be is entitled to retain tbe amount collected by tbe receiver as against tbe claim of a prior mortgagee whose debt tbe amount realized upon tbe sale of the mortgaged property, under tbe judgment entered in tbe action, has been insufficient to satisfy.
    Appeal by defendants Bernard Amend and Joseph Koelble, executors of Joseph Mosbacb, from an order denying a motion to modify an order appointing a receiver.
    Tbe plaintiff, bolding a first mortgage on certain premises on tbe 21st of March, 1876, filed a complaint for foreclosure and sale, malting tbe holders of tbe second, third and fourth mortgages parties defendant.
    All tbe parties were served with tbe summons in tbe action without a complaint. After tbe defendants Amend and Koelble, tbe holders of tbe second mortgage, bad been served with tbe summons, but before they appeared in tbe action and before tbeir time for appearing had expired, and on tbe 31st of March, 1876, tbe defendant Susman Schuster, tbe bolder of tbe fourth mortgage on the-premises, without notice to said Amend and Koelble, moved for a receiver of tbe rents of tbe mortgaged premises for bis benefit. Tbe motion was granted, tbe order reciting that it bad been made on notice to all parties who bad appeared in tbe action. Tbe mortgaged premises were sold under tbe decree in tbe action on tbe 12th of July, 1876, and after tbe sale a motion was made on behalf of tbe said Amend and Koelble, tbe holders of said second mortgage, to modify tbe order appointing tbe receiver by striking out tbe words “ for tbe benefit of ” tbe fourth mortgagee, and that tbe rents in tbe bands of tbe receiver be paid over to them as holders of tbe second mortgage, tbeir ben being prior to the ben of tbe fourth mortgage, and they not having bad notice of tbe appbcation for tbe receiver for Schuster’s benefit.

      B. M. SUlboell, for tbe appebants.

      John, S. Ban/, for tbe respondent.
   Daniels, J.:

This action was brought to foreclose a mortgage, which was tbe first incumbrance on tbe premises described in it. Three other mortgages were afterwards given upon tbe same property, and tbe parties bolding them were made defendants in this action. During its pendency tbe defendant Susman Schuster procured tbe appointment of a receiver of tbe rents of tbe mortgaged premises, for tbe benefit of himself, the defendants appealing having not then appeared in tbe action; they bad no notice of that appbcation. Tbe receiver cobected about $420, rents of tbe premises, by virtue of bis appointment, and after that and a sale of tbe premises bad been made under tbe judgment recovered, tbe appealing defendants, who owned tbe second mortgage, appbed for such a modification of tbe order as would entitle them to tbe rents cobected by tbe receiver, tbe proceeds of tbe sale paying only tbe first mortgage upon tbe property. This appbcation was denied, and tbe appeal has been taken from tbe order made upon that denial. Tbe respondent, defendant, applied for tbe receiver in bis own bebalf solely and not generally in tbe action. Tbat be bad tbe right to do, and tbe parties bolding earlier incumbrances upon tbe property could bave done tbe same at any time during tbe pendency of tbe action, and tbat would, from tbe time of favorable action as to either of them, bave suspended tbe special clause of tbe order made in favor of tbe defendant who procured -it. But, as long as they failed to take any proceeding to secure tbe collection of tbe rents for themselves, they were not in a situation to complain of those of tbe respondent. If it bad not been for bis application and tbe order made upon it, tbe owner of tbe equity of redemption would, by their practical assent, bave himself received and appropriated tbe rents and profits of tbe premises during tbe pendency of tbe action. He has intervened and prevented tbat, not for them, but exclusively for himself, and it would be inequitable now to allow him to be deprived of tbe advantage which bis diligence alone has secured. Ordinarily, it is true tbat a receiver is appointed for tbe benefit of all tbe parties in the action. But tbat is only so when all are interested and bave tbe probable right to participate in tbe subject of tbe litigation. Tbat in this case did not directly include tbe rents and profits of tbe property while tbe suit should be pending. They could be impounded only because tbe property itself was an inadequate security for tbe debt, and then only by means of a special application of tbe court for tbat piupose. Tbe parties each bad their election whether tbat should be made or not. They all elected not to make it, except tbe respondent. Tbe rest were satisfied to leave tbe rents and profits out of tbe case, and unaffected by its determination. He alone was actuated by a different disposition, and moved for their sequestration, as be bad a right to, for bis own exclusive benefit. After tbat bad been done, and tbe anticipated benefit bad been secured, tbe appellants could not justly deprive him of its fruits.

Tbe case is within tbe principle applied in tbe decision of Howell v. Ripley (10 Paige, 43), where tbe contest concerning tbe rents was between tbe complainants in two separate actions of foreclosure, and it was held tbat tbe junior incumbrancer could not be divested of bis right to tbe rents and profits in favor of tbe party bolding the first mortgage, until be bad procured tbe appointment of a receiver, who should collect them for bis benefit and subordinaré to bis own superior rights. In principle, there can be no difference between this case and that which was then decided by the chancellor. The same principle was maintained in Post v. Dorr (4 Edw. Ch. [m. p.], 412), where it was held “ to be an established rule that a second or third mortgagee, who succeeds in getting a receiver appointed, becomes thereby entitled to the rents collected during the appointment, although a prior mortgagee steps in and obtains a receivership in his behalf, and fails to obtain enough out óf the property to pay his debt. This is on the principle that a mortgagee acquires a specific lien upon the rents by obtaining the appointment of a receiver of them, and if he be a second or third incumbrancer, the court will give him the benefit of his superior diligence over his senior in respect to the rents which accrued during the time that the elder mortgagee toot no measures to have the receivership extended to his suit and for his benefit.” (Id., 414.)

The order appealed from was a proper one, and it should be affirmed, with ten dollars costs, besides disbursements to the respondent.

Beady, J., concurred.

Present — Davis, P. J., Beady and DaNiels, JJ.

Order affirmed, with ten dollars costs and disbursements.


text:
    WILLIAM SUTPHEN, Appellant, v. SIMON A. LASH, Respondent.

      Discontinuance of action— Trial fee— Costs — 'ochen judgment ma/y he entered for, on orden' discontirming the action — Practice, when action is disconiimted.

    After an action Rad been noticed for trial and placed upon tie calendar, and just as it was about to be moved for trial, an order was entered discontinuing tbe action upon payment of costs. Held, that tbe defendant was not entitled to include a trial fee in sucb costs.
    Where an order is entered discontinuing an action on payment of costs, tbe defendant may, so long as tbe costs are unpaid, enter judgment tberefor and issue execution tbereon, or be may disregard tbe order and proceed witb tbe action as tbougb it bad never been entered.

      Appeals from an order made at tbe Special Term denying a motion to set aside a judgment, and from an order denying a motion for a readjustment of costs.
    This action was begun in 1870. On tbe 15th of February, 1876, tbe cause was called in its order on tbe calendar, and, tbe plaintiff not answering, tbe defendant’s attorney dismissed tbe complaint. Tbe defendant’s costs were thereupon taxed, and a judgment therefor entered in favor of defendant and against plaintiff. Upon tbe payment, by tbe plaintiff, of tbe sum of twenty-five dollars, this judgment was vacated by consent on tbe seventeenth of March, and tbe cause set down for tbe April term. While tbe cause stood in this condition on tbe April calendar, awaiting trial, tbe defendant’s attorney was served with a stay of proceedings, embodied in an order to show cause why plaintiff should not have leave to discontinue tbe action without payment of costs, returnable'April seventeenth. Tbe cause in tbe meantime being reached on tbe calendar, it was directed by tbe Circuit Court, upon these facts, that it stand till tbe eighteenth of April, in order that this motion might first be disposed of. Tbe motion was denied. Thereupon tbe plaintiff procured an order, April twenty-ninth, that tbe cause be discontinued on payment of costs to be taxed.
    Tbe costs, including a trial fee, were taxed on tbe fifth of May, and, not having been paid, tbe defendant, on tbe twenty-fifth of May, entered judgment therefor.

      WilUam Sutphen, in person, and Demid W. Oillett, for tbe appellant.
    Tbe judgment was irregular. Plaintiff bad a right to enter tbe order allowing a discontinuance upon payment of costs, and it is well settled that tbe defendant cannot, under such an order of discontinuance, enter up a judgment for bis costs. (Leonard v. Slaughter, 10 John. P., 376 [1813] ; Hv/ntmgton et al. v. Forkson, 7 Hill, 195 [1845] ; Wightmam, v. Shcmklcmd, 18 How. Pr., 79 [1859]; Hicks v. Bremurn, 10 Abb. Pr., 304 [I860].) Tbe costs, as taxed, are in their nature interlocutory, and therefore cannot be collected by a judgment. (Brown v. Leigh, 50 N. Y., 427; Wilhm et al v. Ba/plee, 52 id., 248.)

      F. O. Bowma/n, for tbe respondent.
   Daniels, J.:

On tbe adjustment of tbe costs, tbe plaintiff objected tbat a trial fee sbould not be included in tbe amount. But, as it appeared tbat tbe complaint was dismissed on proof of service of a notice of trial at tbe circuit, tbat objection was properly overruled. (Dodd v. Curry, 4 How., 123; Tillspaugh v. Dick, 8 id., 33; Shannon v. Brower, 2 Abb., 377.) But after tbe default was taken it was set aside by consent for tbe sum of twenty-five dollars, paid by tbe plaintiff to tbe defendant’s attorney. And as tbe costs and disbursements to wbicb tbe defendant was entitled in tbe action were all included in tbe bill as it was adjusted, tbis sum sbould bave been deducted from its aggregate amount.. It was evidently a payment of so much in tbe way of costs, recoverable as a consequence of tbe default; and tbe plaintiff was entitled to derive tbat benefit from it.

Tbe amount was less than the costs and disbursements attending tbe default; but tbe plaintiff was none tbe less entitled to tbe benefit of it because of tbat circumstance.

Tbe cause was afterwards noticed and placed upon tbe calendar for trial, and, as it was about to be moved, tbe proceedings were stayed for a motion to be made for leave to discontinue without costs. Tbat was denied, and an order entered discontinuing tbe action on payment of costs. Tbe defendant claimed tbat tbis entitled him to another trial fee, within the casés of Pomeroy v. Hulin (7 How., 161), and Jones v. Case (38 id., 349); but neither of them, nor the other authority referred to, proceeds far enough to support tbat position. As the costs were not paid pursuant to tbe order, tbe action might bave been again dismissed, wbicb would bave entitled tbe defendant to another trial fee; but, as it stood when tbe bill of costs was adjusted, tbat could not properly be allowed. Tbe defendant was, then, entitled to but one trial fee, and from tbe amount of tbe bill tbe twenty-five dollars sbould bave been deducted.

After tbe costs were adjusted tbe defendant entered a judgment in tbe action for their recovery. Tbe plaintiff moved to set tbat aside as irregular, assigning as a reason in support of tbe motion, tbat a judgment cannot be entered on an order of discontinuance. Tbe defendant, it is well settled, bad tbe right to treat tbe order as a nullity without payment of tbe costs after their adjustment. He could have proceeded in the. action and dismissed the complaint, and then entered judgment for the recovery of his costs. But while he could take that course, he was not bound to do so. He had the power to waive that right, and regard the discontinuance as a termination of the action and enter a judgment for his costs upon it accordingly. This practice was allowed by the statute before the Code. (3 B. S. [5th ed.], 908, §§ 1, 4.) And it was followed by the courts. (1 Burrill’s Pr., 179, 383, 418.) The defendant had his election whether he would enter judgment and issue execution for the collection of his costs, where they remained unpaid, or disregard the order entirely and proceed with the action the same as though the discontinuance had not been ordered. And that has not been abrogated by the Code, because it is not inconsistent with any of its provisions. It is only where a preceding statute proves inconsistent with the Code that it has been repealed by that system. (§ 468.) Beyond that, the preceding rales and practice have been retained when they are found consistent with the changes made by the Code. (§ 469.) And the right to enter judgment for the collection of costs upon a discontinuance appears to have been in that manner preserved. This, in substance, was the view of the practice which was taken in Crockett v. Smith (14 Abb., 62), and Pacific Mail Oo. v. Leuling (7 Abb. [N. S.], 37-41).

The plaintiff has cited many cases which were supposed to conflict with the existence of this right, but the most that can be deduced from them has already been stated. The order of discontinuance, without the actual payment of costs, is a nullity as to the defendant, if he elects so to regard it; but he is under no obligation to the other party to so consider it. He may elect to regard it as an effectual termination of the action, and enter judgment for the recovery of his costs, as the defendant did in this instance.

The order denying the motion for readjustment of the costs should be reversed with the usual costs and disbursements to the appellant, and a readjustment ordered, unless the defendant, within twenty days after notice of this decision, stipulate to deduct twenty-five dollars from the amount recovered as the judgment now stands. If such a stipulation be given, then the order, as so modified, will be affirmed, without costs.

Tbe order denying tbe motion to set aside tbe judgment should be affirmed, with ten dollars costs besides tbe disbursements.

Davis, P. J., and Brady, J., concurred.

Order affirmed denying motion to set aside judgment with costs, etc. Order denying motion for readjustment of costs reversed, unless, etc., as stated in the opinion. Order to be settled.


author: Per Ouriam:

text:
    MARY A. SCHANCK, Executrix, etc., of DANIEL S. SCHANCK, Deceased, Respondent, v. THE MAYOR, Etc., OF THE CITY OF NEW YORK, Appellant. THE NEW YORK DISPENSARY, Respondent, v. THE SAME.

      Gom/mon counoíl of city of JYm York — power of, to malee leases ■ — reasonable rent under — § 18, ehap. 385 of 1873.
    Under section 18 of chapter 335 of 1873, providing that the common council of the ' city of New York shall have no power to “make a lease of any real estate or franchise, save at a reasonable rent; ” the decision of the question as to whether or not the rent reserved is a reasonable one is left to the discretion of the common council, and, in the absence of fraud or collusion, its decision is conclusive.
    Appeals from judgments in favor of tbe plaintiffs in tbe above entitled actions, entered upon tbe trial thereof by the court without a jury.
    Tbe actions were brought to recover the rent accruing upon leases to the city. In both cases tbe leases were executed in obedience to resolutions, duly adopted by the common council and approved by tbe mayor, and in both cases tbe city bad been in possession of the demised premises ever since the commencement of the respective terms, and bad paid no rent therefor.
    The defendant set up, in its answer, that the common council bad no power to take or make a lease of any real estate, save at a reasonable rent, “ and that the rent alleged in said complaint to be reserved by the lease therein set forth is not a reasonable rent of the premises therein described, but is, on the contrary, grossly exorbitant.”
    Upon the trial the defendants offered to prove what was the reasonable rental value of the demised premises, which evidence was, upon the plaintiff’s objection thereto, excluded by the court.

      A: J. Requier, for the appellants.

      A. O. Brown, for the respondents.
   Per Ouriam:

These appeals were argued together, as they both involve the same qu'estion. On the trial the court below pronounced the following opinion:

“ Lawrence, J. I think that the objection to the evidence offered by the defendants, as to the rental value of the premises, is well taken. Under the eighteenth section of the charter, the common council have, it appears to me, a discretion in determining whether the rent demanded upon the execution of a lease to the city is or is not reasonable, and, in the absence of fraud or collusion, their determination on this point is conclusive.

In this case there is no allegation of fraud or collusion, but it is alleged that the rent is exorbitant. If the construction which is contended for by the learned counsel for the city is correct, every person who executes a lease to the city will be liable, at any time during the term, to be called upon to show, not only that the lease was duly and honestly entered into, and that the common council considered the rent reserved by the lease “ a reasonable rent,” but that, in point of fact, and according to the opinion of experts, such rent is reasonable.

Such cannot, I think, be the true construction of the eighteenth section of the charter. By that section, the common council are prohibited from making a lease, etc., “save at a reasonable rent.” If they are guilty of fraud or of collusion with the lessor, such fraud or collusion would be a defense; but an error on their part as to the reasonableness of the rent, not alleged to have been willfully committed, in my opinion, cannot be urged as a defense. The true rule applicable to this case seems to be that stated in the case of The New York and Harlem Railroad Company v. The Mayor of New York (1 Hilton, 562-588): “ Courts are bound to assume that where a discretion is vested in a municipal body, exercising functions of a legislative character, good reasons existed for the adoption of a regulation or ordinance which was the result of such a discretion.”

If, from the amount of the rent reserved, the city authorities have reason to believe that these leases were fraudulently procured, or are the result of a collusion or conspiracy, the fraud should have been alleged, and the answers may now be amended in that respect, on a proper application at the chambers of the court, if the defendant shall be advised that the facts justify them in making such an application. The objection to the evidence, as the pleadings now stand, must be sustained.”

The city charter recognized the authority to take leases of real estate for the uses of the city, or its departments. As one of the powers of the common council, a limitation is imposed upon the exercise of this power by section 18 of chapter 335 of the Laws of 18^3, which is in these words:

The common council shall have no power to impose taxes or assessments, or borrow money or contract debts, or loan the credit of the city, or take or make a lease of any real estate or franchise, save at a reasonable rent, and for a period not exceeding five years, unless specially authorized so to do by act of the legislature.”

By section 14 of the same act, it is required that three-fourths of all the members of the common council must concur in the resolution to lease real estate.

Section 16 provides that no resolution of the common council for the appropriation and expenditure of public moneys, or authorizing the incurring of any expense, shall be passed or adopted until at least five days after an abstract of its provisions shall have been published in the City Record, and that no such resolution shall be approved by the mayor until three days after such abstract shall have been published after its passage.

These safeguards are thrown around the exercise of the power to take leases of real estate, and were intended to secure careful deliberation and the concurrence of three-fourths of the common council, in the consideration of the various questions touching the propriety of making such leases, amongst which is, of course, the reasonableness of the rent. The mayor and common council are thereby, of necessity, in the exercise of their sound discretion, made judges whether the rent to be paid is a reasonable one, and it was not the intention of section 18, above quoted, to subject that question to trial by a court and jury, unless fraud and collusion be alleged. The restriction imposed by the eighteenth section is intended to be an interdiction of an act, the doing of which subjects the common Council, or such of its members as are guilty of the wrong, to punishment for a criminal offense, and though as to some of the acts interdicted the action of the common council will be void, because no discretion is permitted, yet, where discretion is necessarily involved, another rule must apply, and the question of validity must depend upon the presence or absence of fraud or collusion. The question of “ reasonable rent ” in any lease taken for a term within the limited period of five years, is necessarily one of the latter class, and to overthrow such a lease, fraud or collusion must be averred and proven. Under such an averment, the question whether the rent to be paid is exorbitant or not is, of course, one element of proof, and it is easy to imagine a case where the amount of the rent alone might be strong and satisfactory proof of the allegation of fraud and collusion. In these cases, the answers aver in substance, only that the rent reserved in the leases is not a reasonable, but is an exorbitant one, and the offer at the trial was, in substance, to submit the mere question of reasonableness to the jury. The court excluded that evidence, for the reasons assigned in the opinion of Lawrence, J.

•We concur in his opinion, and order that the. judgments be affirmed.

Present — Davis, P. J., Brady and Daniels, JJ.

Judgments affirmed.