author: Pratt, J.: Cullen, J.:

text:
    Louise M. Beekman, Appellant, v. The Brooklyn and Brighton Beach Railroad Company, Respondent. Marlon D. McCollum, Appellant, v. The Brooklyn and Brighton Beach Railroad Company, Respondent.

      JSlemted railroad for rapid transit in a city— cannot be constructed under chapter 140 of 1850 — section 138 of chapter 676 of the Laws of 1893 applies only to rapid transit raihroads— section 38 of title 19 of chapter 863 of 1873 applies only to sts'eet railroads.

    An elevated railroad constructed through a city for the purpose merely of affording rapid transit or serving as a substitute for a street railroad, even though built on its own right of way, cannot he constructed under the authority of the Railroad Act (Chap. 140 of 1850). A railroad corporation, however, organized under chapter 140 of the Laws of 1850, need not be wholly confined to the surface and not at all an elevated or underground structure.
    By section 133 of chapter 676 of the Laws of 1893 it is provided: “No such railway shall be located in or upon * * * Lefferts place, * * * Classon and Franklin avenues * * * between the southerly line of Lexington .avenue and the northerly line of Atlantic avenue, * * * but such railway may be located and constructed across such excepted streets, avenues and places, at their intersection only with other streets, avenues and places.”

      Held, that the direction that no such railroad shall be located upon such streets was plainly, as a matter of context, limited to railroads incorporated under the Rapid Transit Law;
    '’That where a railroad is to be constructed on property abutting on the street, such a location may fairly be considered as being at the intersection of the street; Section 33 of title 19 of chapter 863 of the Laws of 1873, being the charter of the city of Brooklyn, has no application to any railroad but street railroads.
    Appeal by the jilaintiff in each of the above-entitled actions from a judgment of the Supreme Court in favor of the defendant, •entered in the office of the clerk of the county of Kings on the loth day of April, 1895, upon the decision of the court rendered after a trial at the Kings County Special Term dismissing the plaintiff’s complaint upon the merits.
    These actions were brought to restrain the defendant from entering upon any portion of Lefferts place, or Franklin or Atlantic avenues in the city of Brooklyn, or erecting its structure therein.

      George W. Wingate, for the appellants.

      William N. Dykman and George I. Murphy, for the respondent.
   Pratt, J.:

This is an appeal by tbe plaintiff in each of the abovemntitled actions from a judgment at Special Term sustaining the right of the defendant to change its terminus and grade so as to connect with an elevated railroad. To d’o this it is necessary to cross at very nearly right angles two streets.

From a careful examination of the case it appears that the conclusions of law are amply sustained by the evidence, and the opinion rendered at the Special Term covers every material point raised in the case, and we think the judgments may well be affirmed upon it. I may add, however, that the cases seem to be devoid of all merit in equity, as the plaintiffs show no irreparable injury which they can suffer, and in my judgment have no standing in court to oppose the proposed improvement. First. It is to be noticed that no encroachment is threatened upon any land or easement of the plaintiffs, but the same is to be built upon the private property of the defendant, and the plaintiff in the first above-entitled action does not even abut upon the streets to be crossed by defendant near the point where such crossing is to be made. It is claimed that an act of the legislature forbids the building of a railroad in one of the streets to be crossed, but what private citizen can champion the cause except one who is interested in having the law enforced.

It is common knowledge too plain to require proof, or to be disputed, that the proposed connection will greatly add to the public convenience, and that it falls within the settled rule of policy of the. State to permit railroads to connect for the convenience of the travelling public. The case is fully discussed by the opinion below, which renders any further discussion unnecessary.

The judgments should be affirmed, with costs.

BeowN, P. J., concurred; DyemaN, J., not sitting.

Judgment in each case affirmed, with costs.

The opinion of the Special Term was as follows:

Cullen, J.:

The defendant is organized under the general act of 1850 (Chap. 140) with a railroad constructed and operated from Coney Island to Atlantic avenue, Brooklyn. It is an ordinary steam surface road, built not through streets, but on its own right of way, with its grade generally at the surface of the adjacent territory, though passing under some streets or avenues by tunnels or culverts. The Kings County Elevated railroad operates an elevated railroad on Fulton street, two blocks to the north of Atlantic avenue. The defendant desires to connect its road with that of the Kings County Company, by extending its road northerly to Fulton street. To reach the elevation of the Kings County road it is necessary that the extension and also part of its present road should be carried on an elevated road. To accomplish this result the defendant has, by resolution of its directors, changed its terminus to Fulton street, acquired by purchase a right of way to that street and obtained the consent of the common council to the extension and construction of its road. The extension crosses Lefferts place on an elevated structure. The plaintiffs, owning property in the vicinity, one on Franklin avenue and the other on Lefferts place, bring these actions to restrain the construction of the road across Lefferts place, claiming that the defendant is without legal right to erect it.

The first objection to the defendant’s authority is the claim that a company organized under the general act of 1850 is without power to construct an elevated road in this city; that such power can be acquired only through a commission and the procedure prescribed in the Rapid Transit Act of 1875, the provisions of which are now incorporated in the Railroad Law of 1892 (Chap. 676). That an elevated railroad through a city for the purpose merely of affording rapid transit or serving as a substitute for a street railroad, even though built on its own right of way, cannot be constructed under the authority of the Railroad Act of 1850 has been decided. (People's Rapid Transit Co. v. Dash, 125 N. Y. 93.)

But the opinion of the court carefully declares that a railroad, under the act of 1850, need not be wholly confined to the surface 'and not at all an elevated or underground structure. This must be so, for in few railroads of any magnitude in the east are there not to be found tunnels or viaducts. As is said in the case cited, the judgment proceeds on the special facts of the case, that the structure and scheme were entirely foreign to anything contemplated by the general act. The counsel for plaintiffs very fairly concedes that a railroad like the New York Central might be constructed through a city on an elevated viaduct, without acquiring rights under the Rapid Transit Act. I think that this concession covers the case at bar, unless it appears that the elevation and extension of defendant’s road is a mere cover for the construction of a rapid transit elevated railroad, or in reality the extension of the Kings County Elevated road. But the agreed state of facts contain no allegation to this effect, nor are there facts set up which would justify such an inference. Common knowledge informs us that an elevated railroad of less than half a mile in length, and dropping to the surface in that distance, can neither be operated by itself for rapid transit nor as a part of the elevated railroad system in Fulton street. That the connection may be very advantageous to both roads and increase the travel on each is plain, and doubtless for this purpose the extension is to be'made. But I find that the structure intended to be erected is not made for purposes of changing in any manner the general character of defendant’s railroad, but solely that it may connect its road with the Kings County road at the grade of the latter. Such a structure, built for that purpose, is not within the condemnation passed in the Dash case.

The next objection is based on the prohibition of the rapid transit' sections of the Railroad Law against locating a railroad upon certain streets in Brooklyn, of which Lefferts place is one. It is found in section 123 of the statute of 1892 : “No such railway shall be located' in or upon * * * Lefferts place, * * * Classon and Franklin avenues * * * between the southerly line of Lexington avenue and the northerly line of Atlantic avenue, * * *' but such railway may be located and constructed across such excepted streets, avenues and places at their intersection only with other streets,, avenues and places.” The direction that no such railroad shall be located is plainly, as a matter of context, limited to railroads incorporated under the Rapid Transit Law. I should be unwilling to so-restrict it if any immunity given by the statute to the adjoining-property owners was substantially violated. The power to locate and construct roads across the excepted streets is expressly given. It is true the roads are to be constructed at the intersection of these-streets with other streets. That Franklin avenue is an intersecting-street within this provision, I am clear. If intersecting, a railroad could unquestionably be constructed along it. Here the railroad is to be constructed not on the street, but on property abutting on the street. I think such a location may fairly be considered as being at the intersection of the street. But if X am wrong in this, similar strictness of construction will exclude any railroad but those organized under the Rapid Transit Act from the provisions of the section cited.

The last objection is that the requirement of the city charter, title 19, section 23, has not been complied with. I think the section cited has no application to any but street railroads. It was indeed decided in the Dash case that, under the act of 1860 (Chap. 10) relating to the city of New York, “across” a street was “upon” a street; but it is plainly not so under this section, for the only provision for consent or petition by property owners is upon the street “ along ” which the road is to be operated, and the difference between “ along ” and “ across ” is unquestionable.

There should be judgment for the defendant, with costs.


source: Caselaw Access Project

author: Dykman, J.:

license: Public Domain

text:
    William A. Godfrey, Appellant, v. The County of Queens and The County of Kings, Respondents.

      County — not liable for negligent acts of its officers — effect of chapter 686 of 1893 — county officer's are not agents of their county.

    The common law gives no right of action against a county for damages arising from the negligence of its officers. ' Towns and counties are political divisions of the State and instrumentalities of government and are not liable for the acts of their officers. The statute (Chap. 686 of the Laws 1893), declaring counties to be municipal corporations, which provides that counties can only be sued for a cause of action for which, they are liable, refers to the liability existing at the time when the statute became a law. No new liability was created thereby.
    An action was brought for the recovery of damages sustained by a steam tug by reason of a collision with a drawbridge owned and maintained by the county of Kings and the county of Queens across Newtown creek.

      Held, that the action could not he maintained ; that county officers are not the agents of the county and that counties have immunity from liability for damages arising from the neglect, misfeasance, malfeasance or torts of their officers.
    Appeal by the plaintiff, William A. Godfrey, from a judgment of the Supreme Court in favor of the defendants, entered in the office of tbe clerk of tbe county of Kings on tbe 24th day of October, 1894, upon tbe dismissal of tbe complaint directed by tbe court after a trial at tbe Kings County Circuit before tbe court and a jury.
    Tbe action was brought to recover damages to a steam tug sustained by reason of a collision witb a bridge across Newtown creek, owned and maintained by tbe county of Kings and the county of Queens.

      Stewart & Macklin, for the appellant.

      George F. Elliott, for the county of Kings, respondent.

      Francis H. Van Vechten, for the county of Queens, respondent.
   Dykman, J.:

This is an appeal by tbe plaintiff from a judgment entered in favor of the defendants against him, dismissing bis complaint with casts. The action was for tbe recovery of damages to a steam tug, sustained by reason of a collision with a bridge across tbe Newtown creek. On tbe day of tbe injury the steam tug of tbe plaintiff entered Newtown creek from tbe East river, and gave the usual signal to indicate to those in charge of tbe bridge that she desired to pass tbrougb tbe draw. The persons in charge of tbe bridge commenced to open it, but, as the tug approached, it came in collision witb tbe end of tbe draw, and received tbe injury for which this action is brought. When tbe case came on for trial at the Circuit before a jury, the complaint was dismissed, and judgment ordered in favor of tbe defendants upon tbe pleadings. It has for a long time been settled law in this State that county officers are not the agents of the county, and the immunity of counties from liability for damages arising from neglect, misfeasance, malfeasance or tort of its officers, is well established.

It required a special statute to impose liability upon tbe towns of this State for the neglect of tbe commissioners of highways in keeping roads and bridges therein in suitable order and repair for public travel, and there has never been any statute of that character imposing liabilities upon counties for the negligence of their officers.

The freedom of a county from liability for damages arising from file negligence of its officers, is analagous to the exemption that existed in favor of towns previous to tlie special statute making tbem liable for tbe neglect of highway commissioners. The common law gives no such action. We find no authority to sustain, the plaintiff in his theory of this suit, and we find no decision in favor of an action of this kind against a county or town unless the right of action was expressly given by statute. It has ever been the doctrine that towns and counties are political divisions of the State and instrumentalities of goyernment, and are not liable for the acts of their officers.

The principle of respondeat superior has no application, because the relation of master and servant does not exist.

A sheriff is a county officer, but his county is in no way responsible for his acts.

Supervisors though elected by the towns, are for some purposes deemed county officers, yet neither the towns nor the counties are liable for their negligence or their torts.

The new statute (Chap. 686 of the Laws of 1892) declaring counties to be municipal corporations, imposes no new liability upon them. Under that law a county can only be sued upon a cause of action “ for which it is liable,” and that clause relates to the time when the statute became a law. No new liability was created.

Moreover, the question involved in this appeal was decided adversely to the appellant by this court in the case of Albrecht against these same defendants (84 Hun, 399), and we adhere to the decision made in that case.

The judgment should be affirmed, with costs.

Brown, P. J., and Pratt, J., concurred.

Judgment affirmed, with costs.


text:
    The Donlon & Miller Manufacturing Company, Plaintiff, v. Joseph Cannella, Defendant. Frank H. Mann, as Receiver, etc., of the Rents, Issues and Profits of No. 343 Bleecker Street, Appellant. Paul Eugene Jones, as Receiver, etc., of Joseph Cannella, a Judgment Debtor, Respondent.

      Receiver of rents in a foreclosure action — when rents should he paid to him and not to the receiver in supplementary proceedings.

    Where a mortgagee commences an action to foreclose a mortgage and procures the appointment of a receiver of the rents of the premises upon the ground of the insufficiency of the security, such receiver becomes entitled to the rents accruing during the pendency of the action.
    On the 34th day of November, 1894, Paul E. Jones was appointed receiver of Joseph Cannella in proceedings supplementary to execution. On December 29, 1894, Prank Mann was appointed receiver of the rents and profits of property in an action commenced against Cannella on November 31, 1894, to foreclose a mortgage upon real property owned by Cannella. Mann qualified as receiver January 7, 1895. A tenant of the mortgaged property was indebted for the rent of the premises for the months of December, 1894, and January, 1895, which became due January 1, 1895.

      Held, that as the receiver in the mortgage foreclosure action was appointed to receive a particular fund upon which,the mortgagee had acquired a specific lien, such rents should be paid to him, and that the receiver in supplementary proceedings took the property subject to the equitable claim of the mortgagee upon the rents and profits of the premises, to be applied in payment of the mortgage debt.
    Appeal by Frank Mann, receiver of the rents, issues and profits of No. 348 Bleecker street, Brooklyn, from an order of tlie Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 29th day of January, 1895, directing that Ernest Eckert be permitted and directed to pay unto Paul Eugene Jones, as receiver, etc., the sum of fifty dollars, rent due for premises No. 343- Bleecker street, Brooklyn, and restraining the said Eckert from paying the same unto any other person.

      Moffett & Kramer, for the appellant.

      Paul Eugene Jones and Paul E. De Fere, for the respondent.
   Dykman, J.:

This was an appeal from an order made at the Special Term upon the application of Paul E. Jones, as receiver in supplementary proceedings, and the defendant, Joseph Cannella, permitting a tenant of certain real estate belonging to the defendant to pay fifty dollars rent to that receiver and restraining the tenant from paying the same to another person.

The appeal is taken by Frank Mann, a receiver appointed in the foreclosure suit to collect the rents of the mortgaged premises. There is no conti’oversy in relation to the facts, which are these: On the 30th day of October, 1894, the plaintiff recovered judgment in the Supreme Court, Kings county, against the defendant for the sum of $378.88, upon which execution was duly issued and returned unsatisfied. On the 2d day of November, 1894, an affidavit and order for the examination of the defendant, the judgment debtor, were served and such proceedings were had thereupon, that on the 24th day of November, 1894, Paul E. Jones was appointed receiver in those proceedings and he filed his bond and qualified as such receiver.

On the 21st of November, 1894, William Eierman commenced an action against the defendant Cannella to foreclose a mortgage upon property in the city of Brooklyn. On the 29th of December, 1894, Frank Mann, the appellant, was appointed receiver of the rents and profits of that property in that action of Eierman’s to foreclose the mortgage in the County Court of Kings county, and at that time the County Court was not advised that a receiver had been previously appointed in the supplementary proceedings.

Frank Mann qualified as such receiver January 7,1895. Edward Eckert was the tenant of the defendant’s property, and on the 18th day of January, 1895, being indebted for the rents of the months of December, 1894, and January, 1895, due January 1, 1895, at twenty-five dollars per month, the receiver in supplementary proceedings obtained- an order to show cause why the tenant should not be permitted and directed to pay the rents to that receiver and be enjoined from paying the same over to the receiver in the foreclosure action. These rents had accrued and become due from the tenant to the defendant prior to the time when the receiver in the foreclosure suit qualified. That application was granted, and from the order granting the same the appeal is taken.

When a mortgagee commences an action to foreclose a mortgage, and procures the appointment of a receiver of the rents of the premises upon the ground of the insufficiency of the security, such receiver becomes entitled to the rents accruing during the pendency of the action.

A mortgagee has an equitable right to have the mortgaged premises, devoted to the payment of his mortgage debt, and while he cannot claim the rents and profits by virtue of his mortgage alone, yet when the court recognizes his equitable right to the rents by the appointment of the receiver to collect them, then the right attaches to have them apply in extinguishment of the mortgage, so far as such application becomes necessary. A specific lien upon such rents and profits is thus obtained by the mortgagee and he becomes entitled thereto. (Astor v. Turner, 11 Paige, 437.)

In this case it must be assumed that the mortgaged premises are insufficient securhy for the payment of the mortgage debt. That is implied by the order appointing the receiver.

The receiver in the mortgage case was appointed to receive a particular fund, upon which the mortgagee had acquired a specific lien, and the receiver in supplementary proceedings takes the property of the judgment debtor subject to the equitable claim of the mortgagee upon the rents and profits of the premises, to be applied in payment of the mortgage debt.

These rules show the order to be erroneous, and it should be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.

Brown, P. J., and Pratt, J., concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs and disbursements.


text:
    James H. Perkins, Appellant, v. The Commercial Advertiser Association, Respondent.

      ‘Ohange of venue — a stipulation extending the time to answer not a consent to the venue named in the summons..

    In an action in which both parties resided in the city of New York, the plaintiff gave the defendant twenty days’ further time to plead, on condition that the date of issue should remain the same. At the end of that time the defendant served its answer, and with it a demand for a change of venue. The plaintiff claimed that the defendant by the stipulation extending its time to answer had waived its right to demand a change of venue.

      ITeld, that such extension was not a consent to the trial of the action in the county named in the summons and complaint, and that a motion made to change the place of trial before the service of the answer was regular.
    Appeal by tbe plaintiff, James H. Perkins, from an order of tbe 'Supreme Court, made at tbe Queens County Special Term and entered in tbe office of the clerk of the county of Queens on tbe 11th day of April, 1895, which changed the place of trial of the action from the county of Queens to the county of New York.
    The plaintiff in the above-entitled action designated in the summons and complaint the county of Queens as the place of trial of the action. He gave the defendant twenty days further time to plead, on condition that the date of issue should remain the same. At the end of that time the defendant duly served its answer, and with the answer a demand for a change of venue from the county of Queens to the county of New York. The plaintiff claimed that the stipulation extending the defendant’s time to answer constituted a waiver on its part of the right to demand a change of venue.

      Joseph Fitch, for the appellant.

      Edward Kent, for the respondent.
   Dykman, J.:

This is an appeal from an order changing the place of trial from the county of Queens to the city and county of New York. It is conceded that both the parties reside in the county of New York. That the plaintiff gave the defendant twenty days further time to plead on condition that issue should remain of the original date of February eighth, and it is claimed that that extension was a consent to the trial of the action in the county named in the summons and complaint. The position of the appellant is untenable. Under the stipulation the date of the issue when it was formed was to be the eighth day of February, but the time of joining issue was when the answer was served. As the motion was made before that time, it was regular and within the statute.

The order should be affirmed, with ten dollars costs and • disbursements.

Brown, P. J., and Pratt, J., concurred.

Order affirmed, with ten dollars costs and disbursements.


text:
    Oscar Lagerquist, as Administrator, etc., of Astrid Lagerquist, Deceased, Respondent, v. The United States Industrial Insurance Company, Appellant.

      Request for the direction of a verdict by both parties — waiver of a submission of the case to the jury. .

    t the close of the testimony on both sides upon the trial of an action the defendant requested the court to direct a verdict in its favor. Thereupon the court asked the plaintiff if he requested the direction of a. verdict and was answered in the affirmative. The court then directed a verdict for the plaintiff as requested. Whereupon the defendant requested permission to go to the jury, which was denied.

      Held, that the record presented no error; that when both parties unite in requesting the court to direct.a verdict they are both deemed to have agreed that the facts may he determined by it, and its decision will he sustained if there is any evidence to uphold it.
    Brown, P. J., dissenting.
    Appeal 'by the defendant, The United States Industrial Insurance Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 4th day of April, 1895, upon the verdict of a jury rendered by direction of the court after a trial at the Kings County Circuit, and also from an order entered in said clerk’s office on the 4th day of April, 1895, denying the defendant’s motion for a new trial made upon the minutes.

      Edward W. S. Johnston, for the appellant.

      J. Edrward Swanstrom, for the respondent.
   Dykman, J.:

This is an appeal from a judgment in favor of the plaintiif for the sum of $254.52, which was entered on the verdict of a jury directed by the court after a trial before a jury, and also from an order denying a motion for a new trial on the minutes of the court.

At the close of the testimony on both sides, the counsel for the defendant requested the tidal judge to direct a verdict for the defendant on the ground that there was a breach of the warranty contained in the policy, and also false representations which avoided the policy. The trial judge then asked the plaintiif if he requested the direction of a verdict, and was answered in the affirmative. Thereupon the trial judge directed a verdict for the plaintiif. Then the counsel for the defendant requested permission to go to the jury, and the trial judge then stated that he denied the motion of the defendant and granted the motion of the plaintiff and directed a verdict for him. There was an exception to such direction.

The record presents no error.

"When the counsel for both parties unite in requesting the court to direct a verdict, they are both deemed to have agreed that the facts might be determined by the trial judge, and his decision will be sustained if there be any evidence to uphold it. (Dillon v. Cockcroft, 90 N. Y. 649; Mayer v. Dean, 115 id. 556.)

In this case there was ample evidence to support the decision of the trial judge, and this order denying the motion for a new trial on the minutes of the court must be affirmed, with costs.

Pratt, J., concurred; Brown, P. J., dissented.

Judgment affirmed, with costs.


author: Dykman, J.;

text:
    Esther Hayes, Respondent, v. St. Mary’s Lodging House, Appellant.

      Bill of particulars — not granted for the purpose of compelling the disclosure of evidence.

    In an action brought to recover a sum of money alleged to be due on account of two loans made to the defendant, tbe answer alleged that the defendant was a charitable institution, and that prior to a certain date the plaintiff was connected with such institution as assistant superintendent; that through the confidential relations which she sustained to its managers, she was allowed to receive and control money received for its benefit; that said plaintiff used the funds so received by her to an amount in excess of her claim against said institution without the knowledge or consent of the defendant, and wrongfully invested such funds in the purchase of real property, the title to which was taken in her name. That the loans alleged by the plaintiff to have been made by her to the defendant were made from the money received by her from mortgages which she had made covering the real property purchased with the funds of the defendant. The answer also alleged that she had never accounted to the defendant for the moneys which she had so received, and had refused to convey to the defendant the property purchased by her, which she had agreed to do. That an action was then pending to compel the plaintiff to account for the funds received by her and to compel her to convey to the defendant the real property purchased by her with the funds of the institution.-
    An order was granted directing the defendant to furnish a bill of particulars stating each specific sum of its money which it claimed the plaintiff had received, the date when it claimed each sum was so received, and the person or persons from whom it claimed each sum was so received.

      Held, that such order should be reversed; that the accusation against the plaintiff was distinct and the charge plain; that she knew perfectly well what claim the defendant made against her; that what was really desired was to ascertain what proofs the defendant intended to introduce against her; that such was not the office of a bill of particulars, and that the defendant was under no obligation to furnish the evidence in advance of the trial.
    Appeal by the defendant, St. Mary’s Lodging House, from an order* of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 30th day of April, 1895, directing that the defendant make and serve upon the attorneys for the plaintiff a -bill of particulars of its claim.

      David McClure, for the appellant.

      Spink & Martin, for the respondent.
   Dykman, J.;

This is an appeal from an order directing the defendant to serve a bill of particulars.

The action is brought for the recovery of the sum of $3,000 alleged to be due the plaintiff on account- of two loans made to the defendant. The answer alleges that the defendant is a charitable institution; that for about six years prior to March, 1893, the plaintiff was connected with the Home as assistant superintendent, and through the confidential relations which she sustained to its managers she was allowed to receive and control money received for the benefit of the Home. That on or about the 20th day of May, 1891, the plaintiff used the funds so received by her, which were known to her to be the funds of the defendant, amounting to the sum of $8,500, without the knowledge or consent of the defendant, and wrongfully invested such funds in the purchase of real property in the city of Brooklyn, the title to which was taken in her own name.

That the plaintiff purchased the said real property with the funds so received by her for the benefit of the defendant, and that the loan's mentioned in the complaint were made from the money received by the plaintiff from mortgages which she made on the real property which she so purchased with the funds of the defendant.

It is also alleged in the answer that the plaintiff never accounted to the defendant for the moneys which she so received, and tfiat she has refused to convey to the defendant the property purchased by her as she had agreed to do. That an action is now pending to compel the plaintiff to account for the funds received by her, and to compel her to convey to the defendant the real property purchased by her as aforesaid.

The order from which the appeal is taken required the defendant to furnish a bill of particulars specifying: First. Each specific sum of its money which it Claims the plaintiff received. Second. The date when it claims each sum was so received. Third. The person or persons from whom it claims each sum was so received.

While it is true that the plaintiff is charged with receiving money from the defendant, yet no claim is made against her by way of counterclaim, and the defendant -makes no demand for judgment against tier. Tbe allegations in tbe answer are made to-sbow that trust relations existed between tbe parties. That tbe plaintiff bad used tbe money of tbe defendant to purchase real property, wbicli sbe bad mortgaged to raise tbe money slie loaned to the defendant. That the money so loaned belonged in equity to the defendant, and, therefore, cannot be recovered from it. If this defense fails, the plaintiff will recover, because there is no denial of the loans. Moreover, if tbe affidavit of tbe plaintiff that the charges made against her in the answer are each and all absolutely and unqualifiedly false be true, then they cannot be proven.

If they are true the plaintiff knows the amounts of money sbe received, and the times when, and the persons from whom they were received, as well as the defendant, and there is no reason why the defendant should be embarrassed upon tbe trial by confinement to minute specifications of its proofs.

Tbe accusation against the plaintiff is distinct and the charge is plain. She knows perfectly well what claim tbe defendant makes against her, but what sbe really desires is to ascertain what proofs the defendant intends to introduce against her. That is not the office of a bill of particulars, and the defendant is under no obligation to furnish the evidence in advance of the trial.

The order should be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.

Brown, R. J., and Pratt, J., concurred.

Order reversed, with ten dollars costs and disbursements.


author: Brown, P. J.:

text:
    Stephen Ryder, Respondent, v. The Brooklyn Elevated Railroad Company, Appellant.

      Mevated rail/road — damage to easements — weight of expert testimony.

    In an action 'brought against an elevated railroad company by an abutting property owner to recover rental and fee damages the only testimony introduced by the plaintiff as to value was that of one expert witness, who testified that the rental and fee values had fallen since the construction of the road. Opposed to this testimony was that of four expert witnesses, called by the defendant, who testified in substance that both the rental and fee value of the property bad increased since tbe construction of tbe road, and five specific pieces of property near that of tbe plaintiff were shown to rent for more at tbe time of tbe trial than before tbe road was built, and several pieces of property in tbe immediate neighborhood of tbe premises in question were also shown to have sold for a higher price since tbe construction of tbe road than before.

      Held, that as tbe case rested wholly upon expert evidence tbe decided weight of testimony was upGn tbe side of tbe defendant, and, as tbe burden rested upon tbe plaintiff to make out bis case by a fair preponderance of the testimony, a judgment entered in bis favor should be reversed.
    Appeal by tbe defendant, The Brooklyn Elevated Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 31st day of January, 1895, upon the decision of the court rendered after a trial at the Kings County Special Term.
    The action was brought by an abutting property owner to recover rental and fee damages sustained by reason of the construction and operation of an elevated railroad in the street in front of his premises.

      William H. Page, Jr., for the appellant.

      Francis R. Whitney, for the respondent.
   Brown, P. J.:

We are of the opinion that the judgment appealed from is not sustained by the weight of evidence and should be reversed.

The property owned by the plaintiff is described as No. 379 Lexington avenue, and consisted of a lot 100 feet in depth, upon which there is a small frame building standing back some distance from the street and nearly fifty feet from the defendant’s structure.

The railroad was constructed and in operation in the year 1888. Tire plaintiff was not called as a witness, and it does not appear who occupied the property during any portion of the period involved in the action, nor what the actual rents have been before or since the construction of the road. The respondent refers to the witness Baynard on this subject, but I understand the testimony of that witness on the subject of actual rents to refer to 367 Lexington avenue where he lived and not to the plaintiff’s house.

The only testimony as to the rental or fee value introduced by the plaintiff was that of one expert witness, who testified that rental values bad fallen since the construction of the road from $22 to $16 per month, and fee values from $2,600 to $1,800.

Opposed to this testimony was that of four expert witnesses called by the. defendant, wlio testified in substance that both the rental and fee value of the property had increased since the construction of the road, and five specific pieces of property near that of the plaintiff were shown to rent for more at the present time than before the road was built, and several pieces of property in the immediate neighborhood were also shown to have sold for a higher price since the construction of the road than before.

While it is true that the increase in value of the several properties might be due to other causes than the existence of the railroad or the general rise in value, it is equally true that if plaintiffs property has depreciated it may have done so from causes other than those to be referred to the railroad, and there is not a word of testimony in the case from which it can be inferred that if the value of the plaintiff’s property has fallen it is the result of the existence and operation of the iailroad.

The burden rested upon the plaintiff to make out his case by a fair preponderance of testimony. It was not sufficient for him to show only that his property had depreciated in value since the construction of the railroad. Very many causes may have operated to reduce the value of the property during the seven years that have elapsed since the railroad was first constructed, aud it was incumbent upon the plaintiff to produce testimony from which the court could fairly infer that the loss was to be attributed to the defendant.

In the absence of any explanation why the plaintiff was not sworn as a witness we must infer that his testimony, if it had been given, would not have sustained his cause of action.

As the case was rested wholly upon expert evidence the decided .weight of testimony is upon the side of the defendant.

The judgment must be reversed and a new trial granted, with costs to abide the event.

Pratt and Dykman, JJ., concurred.

Judgment reversed and new trial granted, with costs to abide event.


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    In the Matter of the Petition of Hubert O. Thompson, Commissioner of Public Works of the City of New York, etc. Hiram Farrington, Appellant; Harriet A. Brown, Administratrix, etc., of Nathan L. Culver, Deceased, and Others, Respondents.

      New York aqueduct — condemnation of easements under chapter 490 of 1883, amended by chapter 419 of 1888 —- conveyance of property after condemnation and before awa/rd of damages — when the award passes to the grantee.

    By chapter 490 of the Laws of 1883, as amended hy chapter 419 of the Laws of 1888, being an act to provide for the condemnation of land for the New York aqueduct, the title to the property described in the petition to be presented to the court under said act vested in the city of New York upon the filing of the oath of the commissioners of appraisal. The oath of the commissioners appointed under said act was filed in 1884. At that date a farm across which the aqueduct was to be constructed was owned by Nathan Culver, subj ect to two mortgages, one held by a Sing Sing savings bank, and the other by Hiram Far-rington. In 1885 Culver conveyed the farm to Farrington by quit-claim deed. No reservation was made in the deed of any claim against the city of New York. Farrington subsequently satisfied his mortgage and procured a satisfaction of the savings bank mortgage. The construction of the tunnel for the aqueduct was begun on the farm in 1886. Culver and Farrington both made claims for compensation before the commissioners. Culver’s, which was made prior to 1885, was for about $100, and was confined solely to damages done to the surface of the farm by the city engineers while he was the owner. Farrington’s claim was made in 1886, and was for the destruction of springs of water upon the farm. In 1891 the commissioners made their report in which they awarded $100 to Culver for damages to the farm while he was owner, and $1,344 to Farrington for damages for the destruction of the springs. The sum awarded to Farrington by the commissioners was directed by the court to be paid to Cul-ver’s heirs (Culver having died), on the ground that the title to any claim against the city, arising from the construction of the aqueduct, vested in Cul-ver upon the filing of the oath of the commissioners of appraisal.

      Held, that while the legal right to destroy the springs passed to the city with the acquisition of the title to the easement and the legal title to the claim for compensation thereto vested in Culver, nevertheless, inasmuch as Culver’s title was subject to the lien of the mortgages, the rights of the parties were to be determined by equitable considerations rather than by the application of strict rules of law;
    That when Culver conveyed the farm to Farrington his interest in the prosecution of the claim against the city of New York ceased unless such claim was reserved to him;
    That as the deed for the farm reserved nothing to Culver and, although without covenants, described the whole farm, and as the title to part of the land described had passed to the city oí New York, it was the intention of the parties that the claim against the city, whatever it might he, should stand in the place of the land conveyed and pass by assignment to Farrington on delivery of the deed.
    Appeal by Hiram Farrington from an order of the Supreme Court, made at the 'Westchester Special Term and entered in the office of the clerk of Westchester county on the 30th day of March, 1895, directing the payment to the heirs of Nathan Culver, deceased, of an award made by commissioners appointed in proceedings to condemn property for the aqueduct of the city of New York.

      Francis Larkin, for the appellant.

      James B. Lockwood, for the respondents.
   Brown, P. J.:

It is unnecessary to consider the question discussed by the appellant relating to the practice pursued in this proceeding. We assume that the final order confirming the report of the commissioners has been set aside so far as to permit the court to consider and determine the lights of the parties to the award in question.

Chapter 490, Laws of 1883, as amended by chapter 419, Laws of 1888, the act under which the award was made, required claimants to present their claims to the commissioners within four years from the time the commissioners filed their oath of office. The oath of the commissioners was filed October 25, 1884. At that date the farm across which the aqueduct was to be constructed was owned by Nathan Culver, subject to two mortgages, one held by the Sing Sing Savings Bank for $1,199.50, and one by appellant Hiram Far-rington for $3,500. The title to the property described in the petition vested in the city by force of the statute aforesaid upon the filing of the oath of the commissioners of appraisal. The city did not acquire a fee to the land, but, as appears from the commissioners’ report, took a perpetual easement therein, and the land described^ in the petition consisted of a narrow strip running across the farm. The aqueduct was constructed about 200 feet below the surface of the ground, and there was no shaft upon the farm.

On April 9, 1885, Culver conveyed the farm to Farrington by quit-claim deed. This conveyance was made to prevent a foreclosure of the mortgage held by Farrington, and may be assumed to have been in payment thereof, No reservation was made of any claim against the city. In September, 1885, Farrington filed a satisfaction of the mortgage held by him, and in May, 1889, the savings bank mortgage was satisfied on the record. In November, 1888, Culver died. The construction of the tunnel for the aqueduct was commenced in 1885, and work begun on the farm in question in the year 1886. It appears from the papers before us that Culver and Farrington both made claims for compensation before the commissioners. Culver’s appears to have been made prior to June, 1885. It was for about $100, and was confined solely to damages done to the surface of the farm by the city’s engineers and surveyors while he was the owner. Farrington’s claim was made in 1886, and was for the destruction of springs of water upon the farm. These springs appeared upon the surface of the farm some distance from the land taken by the city, and the evidence permitted the conclusion that the construction' of the tunnel intercepted underground the flow of water thereto.

In August, 1891, tire commissioners made their report, in which they awarded $100 to Culver for damages to the farm while he was the owner, and $1,344 to Farrington for damages sustained by him. This latter sum has, by the order appealed from, been awarded to Culver’s heirs on the ground that the title to any claim against the city arising from the construction of the aqueduct vested in Culver upon the filing of the oath of the commissioners of appraisal, and that by the subsequent satisfaction of Farrington’s mortgage his lien thereon was released and his right thereto destroyed.

We see no just ground to direct the payment of the award in question to the respondents. When the title to the land vested in the city the right to any award to be made for injury to the farm was subject to the lien of the two mortgages then outstanding thereon. Farrington held the second mortgage and was equitably entitled, if he did not receive the award himself, to have it applied to the payment of the mortgage held by the savings bank. While Culver owned the farm he was interested in having as large an award made as possible, as its payment to the mortgagee would inure to his benefit by the reduction of his indebtedness. When he conveyed the farm to Farrington in payment of Farrington’s mortgage bis interest in tlie prosecution of tlie claim against the city ceased unless such claim was reserved to liim. There is nothing in the case tending to show that it was reserved to him. It is hardly probable that Farrington, who had been compelled to take a conveyance of the farm in payment of his mortgage, would have surrendered his right to a substantial claim against the city. We cannot at all events infer that he did so in the absence of all evidence on the subject. The deed for the farm reserved nothing to Culver, and it described the whole farm. Although without covenants, we think that as title to a part of the land described had passed to the city, it was the intention of the parties that the claim against the city, whatever it might be, stood in place of the land conveyed, and passed by assignment to Far-rington on delivery of the deed. The subsequent acts of the parties justify this conclusion. Culver never asserted any claim before the commissioners for damages for the taking of the land or for injury to the farm. He confined his claim to injuries inflicted to the trees and fences by the surveyors while he was owner and in possession, and his failure to assert any other claim is quite significant as to his understanding of the effect of the conveyance to Farrington. On the other hand, as soon as the injury to the springs appeared, Farrington asserted his right to such damages. Culver was then alive, and his son was a tenant on the farm. While the form of injury was probably one not foreseen by either party, Culver never saw fit to make a claim for it or to question Farrington’s right to it. While it is true that the legal right to destroy the spring passed to the city with the acquisition of the title to the easement, and the legal title to the claim for compensation thereto vested in Culver, still we are of the opinion that inasmuch as Culver’s title was subject to the lien of the mortgages, the rights of the parties are to be determined by equitable considerations rather than by the application of strict rules of law, and, giving effect to the contemporary act of the parties with reference to this claim, we can find nothing to indicate that it was the intention of either party that the claim against the eity was to be reserved to Culver. The tendency of all the testimony tends to the conclusion that it was to pass to Farrington in payment of his mortgage. The filing in the register’s office by Farrington of a satisfaction of the mortgage is irot a fact of any significance. That was not done for Culver’s benefit. Farrington’s title as mortgagee had become merged in that under the deed. The mortgage was extinguished and the debt paid. The execution and filing of' the certificate of satisfaction was intended only to discharge an apparent, but not a real incumbrance on the land. It has no relevancy to the question before the court.

The respondents have no just claim to the award, and the order appealed from must be reversed with costs and the award directed to’ be paid to the appellant.

PRAtt, J., concur,red; Dyeman, J., not sitting.

Order reversed, with ten dollars costs and disbursements, and award directed to be paid to the appellant.


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    Joseph Gottlieb, Appellant, v. The Dutchess County Mutual Insurance Company, Respondent.

      Vire inswramce■ — proof of loss required by the policy — when not furnished no recovery can be had.

    A policy of insurance insured, among other property, a horse and wagon and a stock of peddler’s goods carried in the wagon wherever the owner might be stopping in the transaction of his business. The policy provided, among other conditions, that the insured should within sixty days after the fire, unless such time was extended by the company in writing, render a sworn statement to the company stating the interest of the insured in the property, the cash value' of each item thereof and the pmount of loss thereon, and, if required, should also furnish a certificate of the magistrate or notary public living nearest the place of the fire, stating that he had examined into the circumstances and believed that the insured, had honestly sustained loss to the amount that such magistrate or notary public should certify.
    In an action brought to recover upon the policy of insurance the referee found that these conditions of the policy had not been complied with.

      Held, that these findings of the referee, being supported by the evidence, precluded a recovery upon the policy.
    Appeal by the plaintiff, Joseph Gottlieb, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Orange on the 27th day of December, 1894, upon the report of a referee dismissing the complaint. Also, from an order made at the Kings County Special Term and entered in the office of the clerk of the county of Orange on the 28th day of March, 1895, denying the plaintiffs motion for a new trial upon the ground of newly-discovered evidence.

      W. S. Bonnet, for the appellant.

      Milton A. Fowler, for the respondent.
   Brown, P. J.:

This action was brought to recover upon a policy of insurance issued by the defendant to the plaintiff, and which, among other property, insured a horse and wagon and a stock of peddler’s goods carried in a wagon, wherever plaintiff might be stopping in the transaction of his business.

On the night of December 21, 1893, the plaintiff’s horse and wagon and such goods as he was carrying with him were destroyed by fire while the same were in the barn of one George Clark near Jeffersonville, Sullivan county, N. Y., where plaintiff had stopped for the night while on a business trip.

The policy provided, among other conditions, that the insured should, within sixty days after the fire, unless such time was extended by the company in writing, render a sworn statement to the company, stating the interest of the insured in the property and the cash value of each item thereof, and the amount of loss thereon, and, if required, should also furnish a certificate of the magistrate or notary public living nearest the place of the fire, stating that he had examined the circumstances and believed that the insured had honestly sustained loss to the amount that such magistrate or notary public should certify.

The referee found that these two conditions of the policy were not complied with.

There is no claim upon the part of the appellant that a certificate of a magistrate or notary public was furnished by the plaintiff within sixty days after the fire, and no evidence that either of the conditions referred to were waived by the defendant. While the condition as to the magistrate’s certificate was to be complied with only in case such certificate was required by the company, it appears from the testimony that such certificate was demanded by the defendant on January 11, and again on January 24, 1894. A certificate of a magistrate was furnished to the company on March twelfth, after the sixty days had expired. It was not accepted, bat was returned on March, thirteenth for the reason that it was not furnished within the time required by the policy and was not made by the magistrate nearest to the fire. This certificate was also defective in omitting to state that the person making it had examined into the circumstances concerning the loss, and failed to state any value of the goods believed to have been destroyed. The testimony also failed to show compliance with the condition which required the proofs of loss to show the cash value of each article destroyed by the fire.

These findings of the-referee preclude a recovery upon the policy, and the conclusion of the referee has ample support in the authorities. (Blossom v. Lycoming Fire Ins. Co., 64 N. Y. 162; Underwood v. Farmers’ Joint Stock Ins. Co., 57 id. 500; Johnson v. Phœnix Ins, Co., 112 Mass. 49.)

The motion for a new trial upon the ground of newly-discovered evidence was properly denied.

The judgment and order appealed from must be affirmed, with costs.

Dykman and Pratt, JJ., concurred.

Judgment and order affirmed, with costs.


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    The People of the State of New York ex rel. Peter H. Rumph, Appellant, v. The Board of Supervisors of the County of Kings, Respondent.

      Title to the office of supervisor of the thirty-first ward of the city of BrooJctyn— when it cannot be determined by mandamus — quo wa/rranto — chapter 449 of 1894.
    The rule is established in the State of New York that a writ of mandamus will not be granted upon the application of one claiming title to an office for the purpose of determining the validity of his claim when there is a serious question in regard thereto and another person is holding and exercising the functions of the office. The remedy in such a case is by quo warranto.
    The papers upon an application for a peremptory writ of mandamus, commanding the board of supervisors of the county of Kings to recognize the petitioner as a supervisor of the thirty-first ward of the city of Brooklyn, alleged that in the spring of 1894, one Bennett was elected supervisor of the town of Graves- . end, in Kings county, to fill an unexpired term, and that at the same election Bennett was chosen for the next term "beginning with the year 1895, and that he was acting as such supervisor on May 3, 1894.
    By chapter 449 of the Laws of 1894, which took effect May 3, 1894, the town of Gravesend was annexed to Brooklyn and became the thirty-first ward of said city. By section 6 of said act it was provided that the supervisor of the town of Gravesend, acting at the time the act should take effect, should continue to hold office for the term for which he was elected. The petitioner claimed to have been elected supervisor of the thirty-first ward of Brooklyn at the general election in November, 1894, for the term beginning in 1895. He claimed to have taken his seat as a member of the board of supervisors and entered upon the discharge of his duties, and that he was thereafter unseated by the board, who refused to allow him to take his seat or discharge Ms duties. The affidavit of the clerk of the board of supervisors was to the effect that Bennett filed a certificate of election as supervisor for the term beginning with the year 1895, and November 19, 1894; that his name was placed upon the roll of members and that he had acted and was acting as such.

      Held, that upon a motion of this character the question as to the right to the writ must be determined upon the assumption that the averments in the opposing affidavits were true; that Bennett was a defacto officer in possession and could not be deprived of the office without an opportunity of being heard; that the case was one where quo warranto was the proper remedy and that the right of the petitioner to the office fin question could not be determined by mandamus.
    Appeal by the relator, Peter II. Rumpli, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 15th day of February, 1895, denying the relator’s motion for a peremptory writ of mandamus.
    The application was made for a peremptory writ of mandamus directed to the board of supervisors of the county of Kings commanding it forthwith to recognize the relator as supervisor of the thirty-first ward of the city of Brooklyn and permit him to act as a member of said board and to discharge the duties of the said office.

      Paul E. DeFere, for the appellant.

      H. B. Hubbard, for the respondent.
   Brown, P. J.:

The material facts set forth in the petition in this proceeding are as follows: In the spring of 1894, William V. B. Bennett was elected supervisor of the town of Gravesend in Kings county to fill an unexpired term, and duly qualified and entered upon the discharge of Ms duty and was acting as such officer on May 3, 1894. At the same election he was chosen for the next term beginning with 1895.

By chapter 449, Laws of 1894, which took effect May 3, 1894, the town of Gravesend was annexed to the city of Brooklyn and became the thirty-first ward of said city. Section 6 of said act provided that “ the supervisor of the town of Gravesend and the several justices of the peace of said town, duly elected, qualified and acting at the time this act shall take effect, shall continue to hold their offices for the terms for which they were z’espectively elected.”

The petitioner 'claims to have been elected supervisor for the thirty-first ward of said city at the general election in November, 1894, for the term beginning with 1895, and alleges that, he presented himself to the board of supervisors and took his seat therein and entered upon the discharge of his duties, and was thereafter, by said board, unseated, and said board refused to allow him to take his seat or discharge his duties. The affidavit of the clerk of the board was to the effect that Bennett, on November 19, 1894, filed a certificate of election as supervisor for the term beginning with 1895 j that his name was placed upon the roll of members, and that he had acted and was acting as such.

The Annexation Act made no provision for an election of a supervisor for the new ward, but provided generally that the territory annexed should be subject to and governed by the same laws and ordinances, and entitled to the same rights and franchises, as the said city of Brooklyn as constituted when the act took effect. By provision of the charter of the city, vacancies in the office of supervisor are filled by the common council.

We are of the opinion that the right of the petitioner to the office in question cannot be determined in this proceeding. The rule is established in this State that a writ of mandamus will not be granted upon the application of one claiming title to an office for the purpose of determining the validity of his claim when there is a serious question in regard thereto and another person is holding and exercising the functions of the office. (People ex rel. Hodgkinson v. Stevens, 5 Hill, 628; Morris v. The People, 3 Den. 396; People ex rel. Dolan v. Lane, 55 N. Y. 217; In the Matter of Gardner, 68 id. 467; People ex rel. Wren v. Goetting, 133 id. 569; People ex rel. Lewis v. Brush, 146 id. 60.)

Upon a motion of this character the question as to the right to tire writ must be determined upon the assumption that the averments in the opposing affidavits are true. (People ex rel. Tenth Nat. Bank v. The Board of Apportionment, 64 N. Y. 627; People ex rel. Lewis v. Brush, supra.)

Ve must assume, therefore, in this case, notwithstanding the allegations of tlie petition, that Mr. Bennett is in possession of the office and exercising the functions thereof. In such a case the remedy of the person claiming the office is by quo warranto. That writ lies when the party proceeded against is either a de facto or de jure officer in possession of the office. (People ex rel. Kelly v. Common Council, 77 N. Y. 503.)

The claim of the appellant, that the office was vacant on January 1, 1895, and, therefore, mandamus was the proper remedy, is clearly unsound. It is clear that Bennett became supervisor of the thirty-first ward by force of the Annexation Act on May 3, 1894. His claim now is that the petitioner’s election was irregular, and on that assumption he either held over under the Public Officers Act (Laws of 1892, chap. 681, § 5) or else he was in possession under the election for the full term. At all events he was performing the functions of the office, basing his claim of title upon one of these two grounds. He was, therefore, a de facto officer in possession, and cannot be deprived of the office without an opportunity of being heard.

The appellant refers us to the case of People ex rel. Clancy v. Supervisors (139 N. Y. 524). But that case has no relevancy to the questions here presented. The petitioner in that proceeding claimed to have been elected supervisor of the fourth ward of the city of Yonkers. There was no other claimant to that office and no one in possession performing its functions. The sole question was as to the constitutionality of the statute creating the office. If that act was valid and the office existed the petitioner was entitled to it. The ease was one, therefore, where quo warranto would not lie and mandamus was the proper proceeding.

The order appealed from must be affirmed, with costs.

Dykman and Pratt, JJ., concurred.

Order affirmed, with costs.


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    John Sahr, Respondent, v. Theodore E. Scholle, Appellant.

      Property destroyed by a public officer by statutory authority — liability therefor— owner entitled to a hearing — effect of the determination of two reputable citizens under section 656 of the Penal Code.

    A person wliose property has been destroyed by a public officer, acting pursuant to a statutory authority, without notice to the owner, may always have his common-law action for damages, and if he can prove that the fact which, if it existed, would have authorized the officer to act did not exist, he is entitled to judgment.
    In an action brought to recover the value of a horse which had been killed by the defendant, the defendant in justification of his act proved that he was an officer of the American Society for the Prevention of Cruelty to Animals; that the horse was found abandoned, and that in the judgment of two reputable citizens, called by him to view the animal in his presence, the horse appeared to be injured past recovery for any useful purpose.

      Held, that it was incumbent upon the defendant in order to establish his defense to prove the fact that the horse was injured past recovery for any useful purpose; that the determination of such fact by two reputable citizens called to examine the horse, as required by section 656 of the Penal Code, was not conclusive upon the owner thereof; that before there could be such a conclusive determination as would result in depriving the owner of his property he was entitled to a hearing.
    Appeal by- the defendant, Theodore E. Scholle, from a judgment of the County Court of Queens county, entered in the office of the clerk of the county of Queens on the 15th day of March, 1895, upon the verdict of a jury rendered after a trial at the Queens County Court, and also from an order entered in said clerk’s office on the 15th day of March, 1895, denying the defendant’s motion for a new trial made upon the minutes.

      Jay S. Jones and George F. Elliott, for the appellant.

      Clarence Edwards, for the respondent.
   Brown, P. J.:

This action was brought to recover the value of a horse which was killed by the defendant. In justification of his act the defendant proved that he was an officer of the American Society for the Prevention of Cruelty to Animals, and alleged that the horse was found abandoned, and in the judgment of two reputable citizens, called by laim to view the animal in his presence, appeared to be injured past recovery for any useful purpose. (Penal Code, § 656.)

It was incumbent upon the defendant, in order to establish bis. defense, to prove the fact that the horse was injured past recovery for any useful purpose. The determination of such fact by two reputable citizens called to examine the horse, as required by the. statute, was not conclusive upon its owner. Before there could be such a conclusive determination as would result in depriving the owner of his property he was entitled to a hearing. In that way only can acts of the Legislature conferring upon public officers the right to destroy private property be harmonized with the constitutional provision securing to every person due process of law before his property can be interfered with. A person whose property has. been destroyed by a public officer, acting pursuant to a statutory authority, without notice to the owner may always, therefor, have his common-law action for damages, and if he can prove that the fact which authorizes the officer to act did not exist, he is entitled to a. judgment. This subject has recently been examined in the Court of Appeals, and the law applicable to the case stated in People ex rel. Copcutt v. Board of Health (140 N. Y. 1).

The court properly charged the jury upon the subject, and the exception thereto was not well taken. Upon the facts, however, there should be a new trial. The horse was shot by the defendant on June 22, 1893, about four o’clock in the afternoon, in a vacant lot some distance from the highway and from the plaintiff’s stable. The plaintiff testified that he cleaned the horse in the morning and that he was then all right and had not been used for two days. He did not see him again until after he had been shot, and he then discovered no wound upon him except a small scar over the left eye. That he procured other people to examine him, among them I)r. Brooks, a veterinary surgeon. He, however, called none of those witnesses and gave no reasonable excuse for failing to produce them at the trial. On the other hand, the defendant called six witnesses, all of whom appeared to be wholly disinterested, and who testified that the horse was in an emaciated condition, having bruises about the head and body, which were raw and bloody. That he was lying down among a lot of stones and was unable to get upon his feet. The evidence upon the part of the defendant left, we think, no room to doubt but tbat the liorse was past recovery, and was in such a condition as to justify the defendant in killing him.

For these reasons the judgment and order should be reversed and & new trial granted, with costs to abide the event.

Dykman and Pratt, JJ., concurred.

Judgment reversed and new trial granted, costs to abide event.


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    Felix O’Hanlon and Others, as Trustees of School District No. 2, in the Towns of Middletown and Southfield, Richmond County, New York, Plaintiffs, v. James Scott, John L. Feeny, Michael Cahill, John Scott and James Scott, Jr., Defendants.

      Action upon a bond — bwrred by the entry of judgment against one of the sv/reties, even if all are sued.

    In an action brought by the trustees of a school district upon the official bond of one James Scott, Jr., the tax collector of the district, against him and his sureties to recover money collected and misappropriated by him, it appeared that Scott personally delivered the bond in suit to the plaintiffs after its execution by the sureties, and that, although named as one of the obligors in the bond, he did not sign it himself.

      Held, that the bond was binding upon the sureties; that the execution of the bond by the collector would not have changed his relation to the trustees or to his sureties.
    It further appeared that judgment by default was entered against James Scott, James Scott, Jr., and Michael Cahill, pursuant to an order of the Special Term, which order also granted leave to the plaintiffs to continue the action against the defendants Feeny and John Scott, who interposed answers to the plaintiffs’ complaint. Subsequently the default against Cahill was vacated, and he was permitted to serve an answer, the order providing, however, that the judgment entered against him should stand as security.
    John Scott, Feeny and Cahill served answers and each pleaded as a bar to the action the entry of the judgment against his co-surety, James Scott.

      Held, that the entry of such judgment, so far as Cahill was concerned, was not a bar to a right of action against him, but that such judgment was a bar to the further prosecution of the bond against John Scott and Feeny;
    That the security of the contract became absorbed and merged in the higher security of the judgment, the joint liability on the contract being thereby severed, and no further action could be founded on the original promise.

      Hat. Broadway Bank v. Hitch (66 Hun, 401), followed.

      MotioN by the plaintiffs, Felix O’Hanlon and others, as trustees, etc., and by the defendant Michael Cahill for a new trial upon a case containing exceptions, ordered heard at the General Term in the first instance upon the verdict of a jury in favor of the plaintiffs, Felix O’Hanlon and others, as trustees, etc., against the defendant Michael Cahill and in favor of the defendants John Scott and John L. Feeny,. rendered by direction of the court after a trial at the Richmond County Circuit on the 10th day of October, 1893.
    The action was brought to recover upon a school tax collector’s bond which was not produced upon the trial, it having disappeared-from the town clerk’s office.

      George P. Gordel, for the plaintiffs.

      George J. Greenfield and W. Allaire Schortt, for the defendants John Scott and Michael Cahill.
   Brown, P. J.:

This action was brought by the plaintiffs as trustees of a school district upon an official bond of James Scott, Jr., the tax collector of said district, to recover money collected and misappropriated by him. The collector and two of his sureties failed to answer. Upon the trial of the issues raised by the answers of the three other sureties, the court directed a verdict in favor of the defendants John Scott and John L. Feeny, and in favor of the plaintiffs against the defendant Michael Cahill, for the sum of $3,645.10. The plaintiffs and the defendant Cahill moved for a new trial upon the exceptions, and the court ordered the motion to be heard in the first instance at, the General Term.

Scott was elected collector on August 21,1891, and on Sejitember seventeenth personally delivered the bond in suit to the plaintiffs after its execution by the sureties. Although named as one of the obligors in the bond, he did not sign it. The statute (2 R. S. [8th ed.] p. 1302, § 83) requires the collector to “ execute a bond to the trustees * * * conditioned for the due and faithful execution of the duties of his office,” and provides that the collector vacates-his office by not executing a bond, and that the trustees may supply the vacancy.

It is the claim of the defendants that by reason of the failure of the collector to sign the bond, they never became liable as sureties. The authorities cited to sustain this contention are all decisions from other States. Some of them like Bean v. Parker (17 Mass. 591), which was the case of a bail bond; Wood v. Washburn (2 Pick. 24), which was the case of an administrator’s bond, and Fletcher v. Austin (11 Vt. 447), which was the case of a failure of a co-surety to sign, are plainly distinguished from the case before us. But the oases of The City of Sacramento v. Dunlap (14 Cal. 421), and People v. Hartley (21 id. 585), and Bun v. Jetmore (70 Mo. 228), fairly sustain the defendants’ position.

We are not disposed, however, to follow the rule applied in these cases. The defense is the merest technicality possible, and is absolutely without any merit so far as it has relation to any of the rights of the parties. The statute (2 R. S. [8th ed.] p. 1304, § 90) provides that for the recovery of all balances in the hands of the collector, which he shall neglect or refuse to pay to his successor, “ the trustees in their name of office shall have their remedy upon the official bond of the collector or any action and any remedy given by law.” The defendants contend that as no other action or remedy by law is given to the trustees this provision restricts the remedies of the trustees against a defaulting collector to an action on his official bond. Such a construction, we think, is too narrow and technical to be given to the statute. It should be liberally construed, and we are of the opinion that it grants to the trustees the right to pursue every remedy or action that exists for the collection of debts. That they may sue the collector for money received, entirely independent of his official bond, and that proceedings by attachment, injunction and every other remedy which a creditor may have against his debtor is available to the trustees. Under such a construction as to the rig]its of the trustees, it is apparent that the execution of the bond by the collector would not have changed in the slightest degree his relation to the trustees or to his sureties. The trustees might sue him either on the bond or for money received and misappropriated, and the sureties’ rights to recover against him for money they should be compelled to pay would be the same whether he signed the bond or not.

The ease is entirely different from one where one, who had agreed to become a co-surety, failed to sign the bond, as in such a case those who did sign would be deprived of their right of contribution against the one not signing. But no such result follows the failure of the collector to sign. His liability to the trustees is entirely outside of and independent of the bond, and, such being the fact, the ease falls within the rule applied in Parker v. Bradley (2 Hill, 584); Williams v. Marshall (42 Barb. 524); Chouteau v. Suydam (21 N. Y. 179); Mattoon v. Barnes (112 Mass. 466); Trustees v. Sheik (119 Ill. 579); State v. Bowman (10 Ohio, 445).

In all these cases it was held that the bond was binding upon the sureties although not signed by the principal. The requirement of the statute that the collector should execute the bond was not intended for the benefit of the sureties, but of the trustees, and as the instrument expresses upon its face that it was given as security for the performance of the collector’s duties, it was apparent to the sureties that the signature of the collector was, as to them, of no importance whatever.

"We are of the opinion, therefore, that the court properly ruled that the bond was binding upon the defendants.

It further appears that on November 26, 1892, judgment for want of answer was entered against James Scott, James Scott, Jr., and Michael Cahill, pursuant to an order of the Special Term, which order also granted leave to the plaintiffs to continue the action against the defendants Feeny and John Scott. Subsequently the default against Cahill was vacated, and he was permitted to serve an answer, the order providing, however, that the judgment entered on November twenty-sixth should stand as security. Scott, Feeny and Cahill served answers, each pleading as a bar to the action the entry of the judgment against his co-surety. This defense was sustained as to John Scott and Feeny, but overruled as to Cahill. So far as Cahill is concerned the ruling of the court is sustained by the case of Heckemann v. Young (134 N. Y. 170) which, in its facts, was very similar to the case against this defendant.

We are of the opinion that the ruling of the trial court, that the entry of the judgment against the defaulting defendants was a bar to the further prosecution of the bond against Scott and Feeney, was also correct. The plaintiffs do not dispute the rule that a judgment rendered against one of several joint debtors in an action against him alone is a bar to an action against the others. But the argument, as I understand it, is that this principle is not applicable to a case where the judgment pleaded as a bar was rendered against one joint debtor in an action brought against all the debtors. This precise question was decided adversely to the plaintiffs’ contention by the General Term of the first department in National Broadway Bank v. Hitch (66 Hun, 401).

We have carefully considered the criticism of the learned counsel for the plaintiffs upon that case, but do not feel at liberty to disregard it as an authority directly in point upon the question before us. The counsel’s argument, that the action having been commenced against all the joint debtors, and judgment having been entered against those who failed to answer, pursuant to an order of the court which permitted the plaintiffs to continue the action against the other debtors, the intent of the plaintiffs was thereby manifested not to release the answering defendants or to abandon the claim against them, is not without force. But it fails to overcome, in my judgment, one of the grounds upon which the rule applied by the trial court is founded, and that is that the security of the contract became absorbed and merged in the higher security of the judgment. The joint liability on the contract is thereby severed and no further action can be founded on the original promise.

Such appears to be the doctrine asserted in all the cases in which this principle has been applied. (Olmstead v. Webster, 8 N. Y. 413; Peters v. Sanford, 1 Den. 224; Pierce v. Kearney, 5 Hill, 82; Suydam v. Barber, 18 N. Y. 468.)

Although in all the cases I have examined the judgment pleaded as a bar was entered in a separate action against one joint debtor, the grounds of the decision have been asserted to rest on the fact that the joint contract sued on had been merged in the prior judgment and no further action could thereby be maintained upon it.

The rule is an extremely technical one and in my judgment ought to be abolished. But the change must come from the Legislature. If it can be modified in conformity with the appellants’ contention, such result must come from the Court of Appeals.

We must adhere to it, and in sustaining the ruling of the trial court we give effect to what we deem to be the logical result of its application to the facts of this case.

We have examined the other questions raised by the exceptions and argued by the defendants and are of the opinion that none of them are well taken. The amount of the recovery is supported by the evidence, and there was no request made by the defendants to have that question submitted to the jury.

The motion must be denied, and judgment entered in accordance with the directions of the trial court, with costs to the plaintiffs against the defendant Cahill, and costs to the defendant Scott against the plaintiffs.

DyxMAN and Pratt, J'J"., concurred.

Motion for new trial denied and judgment ordered in accordance with the direction of trial court, with costs to plaintiffs against defendant Cahill, and costs to defendant Scott against tire plaintiffs..


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    In the Matter of the Judicial Settlement of the Accounts of Joseph Spears, as Executor, etc., of William C. Spears, Deceased. Joseph Spears, as Executor, etc., of William C. Spears, Deceased, Appellant; William J. Spears and Others, Respondents.

      Surrogate’s jurisdiction as to an accounting for rents, eta., of real estate — wheji executors do not talce title to real estate — power in trust.

    Property tliat descends to the heirs of an intestate, or passes under the will of a testator to the devisees, does not go to the executors or administrators; and if' they assume possession of such property and collect the rents, the remedy of the persons entitled to the same is hy an action at law.
    The surrogate has no jurisdiction to determine controversies arising in regard to ■ such real property of a testator or an intestate. His power to control the conduct of executors and administrators is limited to property to which they have the right of possession.
    The will of a testator provided as follows: “I hereby make my brother Joseph . Spears my sole executor, and leave to his judgment, as he may see fit, the disposal of all my real and personal property to be divided among my heirs as his judgment may deem best and most fitting to him, and tobe sold or held as long as he may deem best for the interest of my heirs.

      Held, that this instrument did not create a trust and that the executor took thereunder no title to the testator’s real estate; that its legal effect was to grant to-the executor a power for the purpose of the division of the land among the heirs, who took the title subject to the execution of the power; that the acts off the executor in collecting the rents of the testator’s land were not a subject of accounting before the surrogate, and that the order of the surrogate striking from the executor’s account all items for rents and expenditures relating to the real property was proper.
    Appeal by Joseph Spears, the executor of the last will and testament of William 0. Spears, deceased, from a portion of the decree of the surrogate of the county of Westchester, entered in said Surrogate’s Court on the 23d day of March, 1895, which orders, adjudges and decrees “that no estate in the real property of the testator was vested by his will in the executor and no trust in relation to the real estate was created by the will. All the items for rents of and expenditures on the real estate are, therefore, eliminated from said account,” and also from that portion of said decree which directs a distribution of said estate, without talcing into consideration the rents of and expenditures on the real estate of which the testator died seized.

      Sackett & Lang, for the appellant.

      Samuel Keeler, for the respondents.
   Brown, P. J.:

This appeal is from a part of the decree of the surrogate of West-chester county, rendered in a proceeding for the final settlement of the accounts of the appellant as the executor of the last will and testament of William C. Spears, deceased.

The case states that the account of the appellant “ purported to contain * * * a full statement of all the rents of and expenditures on the real estate belonging to said William C. Spears from the time of his death down to June 1st, 1894, which showed that the sum of eight thousand and fifty-one -¶-3^ (8,051.37) dollars was expended on said real estate for taxes, water rates, repairs, etc.”

All parties interested objected to this part of the account, and the surrogate decided “ that no estate in the real property of the testator was vested by his will in the executor and no trust in relation to the real estate was created by the will.” All items for rents and expenditures were, therefore, stricken from the account.

Property that descends to heirs of an intestate or passes under the will of a testator to devisees does not go to executors or administrators, and if they assume possession of it and collect the rents the remedy of the persons entitled to it is by a proper action at law.

A surrogate lias no jurisdiction to determine controversies arising from such, matters. His power to control the conduct of executors and administrators is limited to property to wliieli they have the right of possession. (Calyer v. Calyer, 4 Redf. 305; Shumway v. Cooper, 16 Barb. 556.)

The will of the testator was as follows:

“New Yoke, Féb. 28iA, 1891.
I, 'William 0. Spears, being of sound mind and being about to go to Florida make this my last will and testament. I hereby make my brother Joseph Spears my sole executor and leave to his judgment as he may see fit the disposal of all my real, and personal property to be divided among my heirs as his judgment may deem best and most fitting to him and to be sold or held as long as he may deem best for the interest of my heirs.
“WILLIAM C. SPEARS.”

This instrument did not create a trust, and the executor took thereunder no title to the testator’s real estate. Its legal effect was to grant to the executor a power for the purpose of the division of the land among the heirs, who took the title subject to the execution of the power. (1 R. S. 729, § 56; Cooke v. Platt, 98 N. Y. 35; Chamberlain v. Taylor, 105 id. 185.)

The appellant had no authority, therefore, as executor to collect the rents of the land or make expenditures thereon, and his acts, in so doing, were not a subject of accounting before the surrogate.

The part of the decree appealed from must be affirmed, with costs to be paid by the appellant.

Dykman and Pratt, JJ., concurred.

Decree affirmed, with costs to be paid by appellant.


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    Charles E. Morson, Respondent, v. The Town of Gravesend, Appellant.

      Contract liability of a town ■ — ■’policeman of the town of Gravesend cannot maintain an action against it for his salary.

    Towns in tlie State oí New York are corporations of very limited corporate capacity. They have no general power to enter into contracts or to incur obligations, the payment of which can be enforced against the town.
    Persons dealing with town officers are charged with notice of the limited corporate capacity of the town, and it is incumbent upon one who asserts the fact of an indebtedness to him from a town to point out the act of the Legislature which authorized and empowered the town to incur the debt.
    In an action brought against the town of Gravesend to recover a balance claimed to be due the plaintiff for services as a police officer, it appeared that the plaintiff was employed by the defendant as one of its police officers o,n June 1,1890, and that he performed the duties of such office until April 1, 1894. That such employment was under and by virtue of chapter 445 of the Laws of 1887, and the acts amendatory thereof. By such act a board of police commissioners of the town of Gravesend was created, with power to employ such persons as policemen as they should from time to time deem necessary. Such board was directed to present to the board of supervisors of Kings county a statement of the amount necessary to pay the expenses of said commissioners for the fiscal year commencing on the first day of January thereafter, not exceeding a certain amount, and the board of supervisors was directed to cause the amount named in said statement to be levied and assessed upon the taxable property in the town. The amount so levied was to be paid over to the commissioners to be expended for the purposes of said act. The annual appropriation up to January 1, 1894, was duly levied and raised upon the property of the town and paid over to the police commissioners.

      Held, that the act creating the board of police commissioners of said town did not authorize the town to employ policemen, nor did it create and give to a person employed as a policeman any right of action for his salary against the town;
    That it created a board of public officers with power to employ policemen, and it provided a fund from which those employed could be paid; that when that fund had been raised and paid over to the commissioners no further liability existed against the town and none could be imposed upon it;
    That the town could not be made liable to provide any further sum by the misfeasance of the commissioners, and if the commissioners exhausted the fund by the employment of more men than it could pay, or in any other way, no cause of action was thereby created against the town and no liability could be enforced against it;
    That the contract was with the commissioners and not with the town.

      Appeal by the defendant, The Town of Gravesend, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 14th day of January, 1895, upon the report of a referee.

      H. B. Hubbard, for the appellant.

      William E. O. Mayer, for the respondent.
   Brown, P. J.:

This action was brought to recover a balance claimed to be due to the plaintiff for services as a police officer.

The complaint alleged and the referee has found that' the plaintiff was employed by the defendant as one of its police officers on June 1, 1890, and that he performed the duties of such office until April 1, 1894, and that the employment was under and by virtue of chapter 445 of the Laws of 1887 and the acts amendatory thereof. The plaintiff testified that he was discharged on October 21, 1893, and there is no testimony in the case that he was employed after that date.

We are of the opinion that the action cannot be maintained. Chapter 445, Laws of 1887, created a board of Police commissioners of the town of Gravesend, to be composed of the supervisor and justices of the peace of the town, with power to employ such persons as policemen as they should from time to time deem necessary. The board was empowered to determine the compensation to be paid to the policemen and such other incidental expenses as should be necessary to carry out the provisions of the act “ subject to the limitations ” therein contained. It was directed to present to the board of supervisors of Kings county, on or before their first meeting in August of each year, a statement of the amount necessary to pay the expenses of said commissioners for the fiscal year commencing on the first day of January thereafter, not exceeding $15,000. And the board of supervisors was directed to cause the amount named in said statement to be levied and assessed on the taxable property in the town, or upon districts of said town benefited by the act, as should be determined by the commissioners, and the amount so levied was to be paid over to said commissioners, who were authorized to expend the same for the purposes of said act. By chapter 55, Laws of 1892, the amount authorized to be raised by the commissioners was increased to $30,000. Section 3 of chapter 415 of the Laws of 1887, as amended by said act, further contained the following provision :

“ Said statement may, however, be made and certified to by the commissioners to the treasurer of said town, and if the said treasurer shall have funds, not otherwise provided for by law, sufficient in hand after paying or providing and reserving sufficient moneys for the schools, roads and bridges of said town for the fiscal year, he shall pay the amount or amounts thereof to the said commissioners on the presentation of a certificate signed by a majority of them; then the said statement shall not be made to the said board of supervisors, as herein otherwise required to be made.”

Towns in this State are corporations of a very limited corporate capacity. They have no general power to enter into contracts or to incur obligations, the payment of which can be enforced against the town. By the Revised Statutes a town was empowered “to make such contracts * * * as may be necessary to the exercise of its corporate or administrative powers,” and it was provided that “ no town shall possess or exercise any corporate powers, except such as are enumerated in this chapter or shall be specially given by law or shall be necessary to the exercise of the powers so enumerated or given.” (1 R. S. 337, §§ 1, 2.)

In Lorillard v. Town of Monroe (11 N. Y. 394), in speaking of the powers and liabilities of towns, Judge Dekto, after quoting the above provision of the statute said: ‘‘In all other respects, for instance, in everything which concerns the administration of civil or criminal justice, the preservation of the public health and morals, the conservation of highways, roads and bridges, the relief of the poor, and the assessment and collection of taxes, the several towns are political divisions, organized for the convenient exercise of portions of the political power of the State, and are no more corporations than the judicial, or the senate and assembly districts.” (See, also, Town of Fishkill v. F. & B. P. R. Co., 22 Barb. 634.)

The Town Law (Chap. 569, Laws 1890) has not enlarged the towns’ corporate capacity. The 1st section of that act declares them to be municipal corporations “formed for the purpose of exercising sncli powers and discharging such duties of local government and administration of public affairs as have been or may be conferred or imposed upon it by law.”

Persons dealing with town officers are charged with notice of the limited corporate capacity of the town, and it is, therefore, incumbent upon one who asserts the fact of an indebtedness to him from the town to point out the act of the Legislature which authorized and empowered the town to incur the debt.

It is very plain that the act creating the board of police commissioners of the town of Gravesend has not authorized the town to employ policemen, nor has it created and given to a person employed as a policeman any right of action for his salary against the town. It has created a board of public officers with power to employ policemen, and it has provided a fund from which those employed can be paid. When that fund has been raised and paid over to the commissioners no further liability exists against the town, and none can be imposed upon it. The town cannot be made liable to provide any further sum by the misfeasance of the commissioners, and if they exhaust the fund by the employment of more men than it will pay, or in any other way, no cause of action is thereby created against the town, and no liability can be enforced against it. In this case it is conceded that the annual appropriation up to January 1, 1894, was duly levied and raised upon the property of the town and paid over to the police commissioners. Such being the fact the plaintiff has no cause of action against the town.

There is nothing in Kip v. The City of Buffalo (123 N. Y. 152) in conflict with the views herd stated. The plaintiff in that action was regularly appointed to office by the mayor of the city, and was entitled to a reasonable compensation for his services. The charter provided a way for raising all sums which were properly a charge against the city, and as the common council had refused to appropriate the amount necessary to pay the plaintiff, his right to sue was sustained. In this case, as I have already pointed out, the plaintiff’s salary was payable from a certain designated fund, which has been raised and paid to the commissioners, as provided by law. The plaintiff must look to that fund for his pay. His contract is with the commissioners and not with the town, and if the appropriation has been exhausted or diverted, or misapplied, he may possibly have a right of action against the commissioners personally, but he clearly lias none against the town.

The plaintiff calls our attention to the provision of section'3 of the statute, which I have already quoted, and claims that the sum to be raised by taxation was additional to that to be paid to the commissioners by the treasurer of the town. I do not agree to this construction of the law. The commissioners’ “ statement ” was to be presented to the treasurer of the town. This refers to the same statement as is required to be presented to the board of sujiervisors. It was a statement of the amount necessary to pay the expenses of the commissioners, and was limited to $15,000. If it was presented to the treasurer it is expressly provided that it “ shall not be made to the said board of supervisors.” It is clear from this latter provision that the appropriation was limited to $15,000. It was to be raised by taxation provided it was not paid out of funds in the treasury. 'This provision cannot be construed so as to create any general liability on the part of the town for the expenses of the commissioners.'

The judgment must be reversed and the complaint dismissed, with costs.

DykMAN and Peatt, J J., concurred.

Judgment reversed and complaint dismissed, with costs.