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Decided Aug. 7, 1883.
dence tended to show that appli
cation had been made to one of Where by law the approval of a bill by certain commissioners is m:ide a condition prece
the commissioners under the act dent to the right of a creditor to payment, who had refused his approval of the an unreasonable refusal by such commis- bill, upon the ground that an sioners to approve same obviates the ne
injunction had been procured recessity of establishing such approval as a part of the creditor's right to recover.
straining the commissioners from The refusal of such approval upon the ground acting. The court below dismissed
that an injunction is outstanding against the complaint against objection such commissjoners restraining them from and exception, presumably on acacting is an unreasonable refusal.
count of the absence of the cerAppeal from a judgment dis- tificate of approval made by the missing complaint at circuit. act a condition precedent to re
By Chap. 410, Laws of 1870, covery. commissioners were created for the W. A. Butler, for applt. purpose of erecting a building to D. J. Dean, for respt. be used as a
court house and Held, Error; that there was place for the detention of prisoners some evidence tending to show a in the 9th judicial district and 12th refusal upon the part of the comward of the city of New York. By 'missioners to approve the bill upon the act large powers were con- the ground that an injunction ferred upon the cominissioners which had been taken out against to purchase a site, and they were the further action of the commisauthorized to employ the neces- sioners under the act was then sary assistants, &c., to erect the pending. The refusal of the combuilding, and the act provided that missioners upon snch ground was payment for the purchase and ex- 'an unreasonable refusal which penditures should be made by the dispensed with the necessity upon Comptroller of the city of New plaintiff's part of establishing such York, upon vouchers to be ap- approval to entitle him, so far as proved by the commissioners, or a that was concerned, to recover. 63 majority of ibem, created by the N. Y., 336. It was for the jury to act. This action was brought to say whether there had been such recover the value of stone fur- refusal by the commissioners. nished for the building.
There was certain evidence tendThe plaintiff established at the ing to show that the material was trial that he made a contract for furnished by plaintiff for Scallon the stone furnished by him with personally, which was likewise one Scallon, who was conceded for the jury upon the question to be the general superintendent as to whether or not the contract of the work employed by the com
was in fact with Scallon instead of missioners; that the stone bad
stone bad with the commissioners. been furnished and was unpaid Upon the trial plaintiff was alfor; and with respect to the ap- lowed to show that Scallon preproval of his bill plaintiff's evi. ' sented the bill to one of the com
Vol. 18.-No. 1b.
missioners, who shook his head Economy Packing Co., a corporaand had some conversation with tion organized under the Act of Scallon in the court room while on February 17, 1848. Subsequent to the bench, but what Scallon, who the breach of the contract, in an was dead at the time of the trial, action brought to dissolve said cortold plaintiff was excluded. poration, defendant was duly ap
Held, It is very doubtful wheth- pointed receiver of the property er, Scallon and the commissioner and effects of said corporation. being dead at the time of the trial, It did not appear that the corit was not proper for plaintiff who poration has ever been dissolved, was present to have been allowed, A motion to dismiss the comas a part of the res gesta, to have plaint on the following ground, stated what Scallon repeated to among others, ras made and dehim as having been stated by the nied: commissioner.
• That the receiver is not liable, We hesitatingly conclude there being only temporary receiver, and should be a reversal and a new the company not being dissolved, trial.
action must be commenced against Judgment reversed.
it." Opinion by Davis, P. J.; Brady A. A. Cauldwell, for applt. and Daniels, JJ., concur.
Albertus Perry, for respt.
Held, That plaintiff had no cause CORPORATIONS. RECEIVER. I of action against defendant as re
ceiver of the property and effects N. Y. SUPERIOR COURT. GEN
of the corporation. The corporaERAL TERM.
tion was not dissolved, and a suit Jacob Fleischauer, respt.,
against it could proceed to judgAbram J. Dittenhoefer, receiver, ment. 16 Super. Ct., 370. Though applt.
plaintiff was authorized by the Decided June 2, 1883.
court that appointed defendant A cause of action against a corporation for receiver to commence this action, a breach of contract accruing prior to the this was not a determination that appointment of a receiver pendente lste in an plaintiff had a good cause of action action to dissolve said corporation, cannot
against defendant as receiver. be enforced against the receiver until the
Judgment and order reversed, corporation is adjudged dissolved ; and an order permitting such receiver so to be : with costs; and complaint dissued is not an adjudication as to his lia- ' missed, with costs. bility.
Opinion per curiam. Appeal from judgment in favor
DEof plaintiff, entered upon report of HEIRS AND DEVISEES. referee,
CEASED DEBTOR. This action was brought to re
N. Y. SUPERIOR COURT. GENERAL cover damages for breach of a con
TERM. tract entered into February 12, Ferdinand Traud, exr., applt., 1881, between plaintiff and the v. Charles A. Magnes et al., respts.
Decided June 2, 1883.
1 administrator for the sum which Where the devisee of real property aliens the she became personally liable to same before her death, her personal repre- pay by reason of the alienation of sentative is liable, in a proper case, under certain lands so devised to her. Art. 2, Tit. 3, Ch. 8, Part 3, R. S., for the
The referee dismissed the comdebts of her devisor, to the same extent i that said devisee was in her life time, viz., | plaint against the administrator on to the extent of the value of the real prop- the ground that the statute does erty so aliened.
not provide a remedy by action Under said statute, real property which has been devised, and has descended on the against the personal representadeath of the devisee to her heirs, may be
tives of a devisee in a case like the subjected to the payment of the devisor's present. debts in like manner as before the death The referee dismissed the comof said devisee.
plaint against the heirs at law of Appeal from judgment entered Mrs. Magnes on the ground that the on report of referee.
statute in question does not make One James Moore was surety on
the heirs of a deceased devisee a bond in which he bound himself, liable for the debt of the devisor. his heirs, executors and adminis- The plaintiff duly excepted. trators.
Elial F. Hall, for applt. He devised certain real estate to W. J. Curtis, for respt. Mary J. Magnes, who thereafter Held, That as the debtor's dedied, intestate, leaving her surviv- visee during her lifetime aliened ing her husband the defendant a portion of the real estate so reCharles A. Magnes, and the deceived by her from the debtor, she fendants Mary E. Magnes and made herself personally liable unCharles S. Magnes, her children der the statute for said debtor's and heirs at law. Letters of ad- debts to the extent of the value ministration on her estate were of the property so sold, and her issued to the defendant Algernon personal representative is liable to S. Sullivan, as public administra- the same extent.
Judgment was thereafter en- Further held, That the heirs of tered against the executor of James said devisee, who received as such Moore on this bond for $9,326.92. a portion of the said debtor's real Proceedings were taken in the estate, stand in the same position Surrogate's Court to enforce it, to plaintiff that said devisee stood, but nothing was obtained. This and have succeeded as well to her action was then commenced under liabilities as to her rights. They Art. 2, Tit. 3, Ch. 8, of Part 3 of are liable for the debts of the origthe Revised Statutes, to enforce inal devisor whose real estate the liability of said James Moore, they hold, by descent, to the exas surety, against so much of his tent of its value. real estate devised by him to Mary Report modified and case remitJ. Magnes as descended to her ted to referee to further report, heirs, and for the purpose of ob- with costs. taining a judgment against her Opinion per curiam.
COSTS. ALLOWANCE. said $2000. An order was entered
in accordance with that opinion, N. Y. SUPREME COURT. GENERAL and from that order all parties apTERM. FIRST DEPT.
pealed. Jennie C. A. Weed et al. v. John H. Davenport, for plffs. Naomi C. Paine et al.
Almet F. Jenks and Elial F.
Hall, for defts. Decided Oct. 26, 1883.
Held, That before the enactment The Court has inherent power to award to a of the Code of Civ. Pro. it was the guardian ad litem in an equity action a
practice of the Court of Chancery reasonable compensation for the services in fact performed by him to be paid out of
to compensate a guardian ad litem the subject matter of the action. This for the services performed by him power is independent of the Code of Civ. in an equitable action in the proPro, and such award should not be in
tection of the infants' interests by cluded in the sum given to a party as an additional allowance under the provisions allowing him to recover costs, not of the Code regulating that subject.
exceeding the taxable items preWhen both parties are successful in an action scribed for the services performed, named in 55 3253-4 of the Code of Civ. Pro.
4 Paige 85, 87; 7 id. 523, 544, and, and on that account are each entitled to re- |
under this inherent and well estabcover costs separately, additional allowances, under the above sections, may be listed authority, the rule has been made to the amount of $2,000 on a side or prescribed and followed of award
$4,000 in the aggregate. It seems that, in an action to partition real ing to the guardian, to be paid estate, both parties are not entitled to costs
out of the subject matter of the if actual partition of the property is made, action, a reasonable compensation but that they are so entitled if the property for the services in fact performed is sold.
by him. Rule 50 of the General Appeals by both parties from Rules of Practice. order making and denying addi- That this authority has not been tional allowances of costs.
derived from, and is not depenThis was an action for the parti- dent upon, or included within, the tion of real estate. Among the provisions of the Code relating parties there were infant plaintiffs to additional allowances, and for and defendants who appeared by that reason the compensation to guardians ad litem. On the final be made to the guardian ad litem determination of the action the should be considered as indepenCourt was of the opinion that it dent of, and forming no part of, had no power, under $S 3253-4 of the amount mentioned in the Code. the Code of Civ. Pro. to allow That under SS 3253 and 3254 of more than $2000 in addition to the Code of Civ. Pro. when the costs in the aggregate to all the parties on each side of the action parties, and it was also of the may prove to be successful, and opinion that it had no power to on that account each entitled to grant allowances by way of com- recover costs separately, allowpensation to the guardians ad ances may be made to the plaintiff litem additional to, or apart from, or plaintiffs, and also to the de. fendant or defendants, provided | lice commissioners in removing the that they shall not exceed $2000 relator from the force. on a side or $4000 in the aggregate. Charges were made against the
That for the purpose of deter: relator and he appeared before one mining this appeal it is unneces of the police commissioners and sary to decide whether an allow. testimony was taken in the matter. ance to both parties would be He subsequently appeared before proper in an action to partition a meeting of the board of commisreal estate, but it seems that if ac- sioners at which three of the four tual partition of the property is members of the board were presmade it might be the subject of ent, and at that meeting a resoluserious doubt, $ 1559, Code of Civ. tion was adopted removing him Pro., while, if a sale of the prop- from the force. He then commenerty was made, then the right to ced these proceedings to review such allowances would seem to be such decision, claiming that it was reasonably free from doubt. & in violation of rule 131 of the rules 1579 of the Code of Civ. Pro. and regulations of the police de Order reversed.
partment of the city of New York, Opinion by Daniels, J.; Davis, which requires that when the case P. J., and Brady, J., concur.
is heard by less than three commissioners the testimony shall be
laid before and be examined by POLICE.
the several commissioners before N. Y. SUPREME COURT. GENERAL judgment thereon. TERM. FIRST DEPT.
John D. Quincy, for relator.
Richard J. Morrison, for respts. The People ex rel. Michael H.
Held, That a meeting of three Swift, y. The Board of Police commissioners constitutes a legal Commissioners.
board with full power to act in Decided Oct. 26, 1883.
That the language of
the rule recognizes the power of On the trial of a police officer before the police commissioners on charges preferred three commissioners to hear and against him, when the case has been heard determine such cases. That the before less than three commissioners, judg- ' words róthe several commissionment can be rendered at a meeting of the ers” do not refer to the four comboard at which three of the four commissioners are present, and such a proceeding missioners, but to the several who is not in violation of rule 131 of the rules constitute a board with authority and regulations of the police department of to try and determine the case. the city of New York, requiring that when That if four be present at the meetthe testimony in a case is taken before less than three commissioners it must be laid ing, when the testimony has been before and examined by the several com
taken by one, or less than three, missioners before judgment rendered there. it must be laid before and examin
ed by "the several commissionCertiorari to review the proceed- ers” present ; and so, if but three ings and order of the board of po- constitute the board, the testimony