Decided Aug. 7, 1883. Where by law the approval of a bill by certain commissioners is made a condition precedent to the right of a creditor to payment, an unreasonable refusal by such commis sioners to approve same obviates the necessity of establishing such approval as a part of the creditor's right to recover. The refusal of such approval upon the ground that an injunction is outstanding against such commissioners restraining them from acting is an unreasonable refusal. Appeal from a judgment dismissing complaint at circuit. By Chap. 410, Laws of 1870, commissioners were created for the purpose of erecting a building to be used as a court house and place for the detention of prisoners in the 9th judicial district and 12th ward of the city of New York. By the act large powers were conferred upon the commissioners. commissioners to purchase a site, and they were authorized to employ the necessary assistants, &c., to erect the building, and the act provided that payment for the purchase and expenditures should be made by the Comptroller of the city of New York, upon vouchers to be ap proved by the commissioners, or a majority of them, created by the dence tended to show that application had been made to one of the commissioners under the act who had refused his approval of the bill, upon the ground that an injunction had been procured restraining the commissioners from acting. The court below dismissed the complaint against objection and exception, presumably on ac count of the absence of the cer- W. A. Butler, for applt. Held, Error; that there was Upon the trial plaintiff was allowed to show that Scallon presented the bill to one of the com missioners, who shook his head | Economy Packing Co., a corpora and had some conversation with Scallon in the court room while on the bench, but what Scallon, who was dead at the time of the trial, told plaintiff was excluded. Held, It is very doubtful whether, Scallon and the commissioner being dead at the time of the trial, it was not proper for plaintiff who was present to have been allowed, as a part of the res gesta, to have stated what Scallon repeated to him as having been stated by the commissioner. We hesitatingly conclude there should be a reversal and a new trial. Judgment reversed. Opinion by Davis, P. J.; Brady and Daniels, JJ., concur. tion organized under the Act of February 17, 1848. Subsequent to the breach of the contract, in an action brought to dissolve said corporation, defendant was duly appointed receiver of the property and effects of said corporation. It did not appear that the corporation has ever been dissolved, A motion to dismiss the complaint on the following ground, among others, was made and de-. nied: That the receiver is not liable, being only temporary receiver, and the company not being dissolved, action must be commenced against it." A. A. Cauldwell, for applt. Held, That plaintiff had no cause of action against defendant as receiver of the property and effects of the corporation. The corporation was not dissolved, and a suit against it could proceed to judgment. 46 Super. Ct., 370. Though plaintiff was authorized by the court that appointed defendant receiver to commence this action, this was not a determination that plaintiff had a good cause of action against defendant as receiver. Judgment and order reversed, with costs; and complaint dismissed, with costs. Opinion per curiam. Decided June 2, 1883. Where the devisee of real property aliens the same before her death, her personal representative is liable, in a proper case, under Art. 2, Tit. 3, Ch. 8, Part 3, R. S., for the debts of her devisor, to the same extent that said devisee was in her life time, viz., to the extent of the value of the real property so aliened. Under said statute, real property which has | administrator for the sum which she became personally liable to pay by reason of the alienation of certain lands so devised to her. The referee dismissed the complaint against the administrator on the ground that the statute does not provide a remedy by action been devised, and has descended on the against the personal representa death of the devisee to her heirs, may be subjected to the payment of the devisor's debts in like manner as before the death of said devisee. tives of a devisee in a case like the present. The referee dismissed the complaint against the heirs at law of Appeal from judgment entered Mrs. Magnes on the ground that the on report of referee. One James Moore was surety on a bond in which he bound himself, his heirs, executors and adminis trators. He devised certain real estate to Mary J. Magnes, who thereafter died, intestate, leaving her surviving her husband the defendant Charles A. Magnes, and the defendants Mary E. Magnes and Charles S. Magnes, her children and heirs at law. Letters of administration on her estate were issued to the defendant Algernon S. Sullivan, as public administrator. Judgment was thereafter entered against the executor of James Moore on this bond for $9,326.92. Proceedings were taken in the Surrogate's Court to enforce it, but nothing was obtained. This action was then commenced under Art. 2, Tit. 3, Ch. 8, of Part 3 of the Revised Statutes, to enforce the liability of said James Moore, as surety, against so much of his real estate devised by him to Mary J. Magnes as descended to her heirs, and for the purpose of ob taining a judgment against her statute in question does not make the heirs of a deceased devisee liable for the debt of the devisor. The plaintiff duly excepted. Elial F. Hall, for applt. Held, That as the debtor's devisee during her lifetime aliened. a portion of the real estate so received by her from the debtor, she made herself personally liable under the statute for said debtor's debts to the extent of the value of the property so sold, and her personal representative is liable to the same extent. Further held, That the heirs of said devisee, who received as such a portion of the said debtor's real estate, stand in the same position to plaintiff that said devisee stood, and have succeeded as well to her liabilities as to her rights. They are liable for the debts of the original devisor whose real estate they hold, by descent, to the extent of its value. Report modified and case remitted to referee to further report, with costs. Opinion per curiam. COSTS. ALLOWANCE. N. Y. SUPREME COURT. GENERAL TERM. FIRST DEPT. Jennie C. A. Weed et al. v. Naomi C. Paine et al. Decided Oct. 26, 1883. The Court has inherent power to award to a guardian ad litem in an equity action a reasonable compensation for the services in fact performed by him to be paid out of the subject matter of the action. This power is independent of the Code of Civ. Pro. and such award should not be included in the sum given to a party as an additional allowance under the provisions of the Code regulating that subject. When both parties are successful in an action named in 3253-4 of the Code of Civ. Pro. and on that account are each entitled to recover costs separately, additional allowances, under the above sections, may be made to the amount of $2,000 on a side or $4,000 in the aggregate. said $2000. An order was entered in accordance with that opinion, and from that order all parties appealed. John H. Davenport, for plffs.. Almet F. Jenks and Elial F. Hall, for defts. Held, That before the enactment of the Code of Civ. Pro. it was the practice of the Court of Chancery to compensate a guardian ad litem for the services performed by him in an equitable action in the protection of the infants' interests by allowing him to recover costs, not exceeding the taxable items prescribed for the services performed, 4 Paige 85, 87; 7 id. 523, 544, and, under this inherent and well estab lished authority, the rule has been prescribed and followed of award It seems that, in an action to partition realing to the guardian, to be paid estate, both parties are not entitled to costs if actual partition of the property is made, but that they are so entitled if the property is sold. Appeals by both parties from order making and denying additional allowances of costs. This was an action for the partition of real estate. Among the parties there were infant plaintiffs and defendants who appeared by guardians ad litem. On the final determination of the action the Court was of the opinion that it had no power, under §§ 3253-4 of the Code of Civ. Pro. to allow more than $2000 in addition to costs in the aggregate to all the parties, and it was also of the opinion that it had no power to grant allowances by way of compensation to the guardians ad litem additional to, or apart from, out of the subject matter of the action, a reasonable compensation for the services in fact performed by him. Rule 50 of the General Rules of Practice. That this authority has not been derived from, and is not dependent upon, or included within, the provisions of the Code relating to additional allowances, and for that reason the compensation to be made to the guardian ad litem should be considered as independent of, and forming no part of, the amount mentioned in the Code. That under $$ 3253 and 3254 of the Code of Civ. Pro. when the parties on each side of the action may prove to be successful, and on that account each entitled to recover costs separately, allowances may be made to the plaintiff or plaintiffs, and also to the de fendant or defendants, provided that they shall not exceed $2000 on a side or $4000 in the aggregate. That for the purpose of determining this appeal it is unnecessary to decide whether an allow ance to both parties would be proper in an action to partition real estate, but it seems that if actual partition of the property is made it might be the subject of serious doubt, § 1559, Code of Civ. Pro., while, if a sale of the property was made, then the right to such allowances would seem to be reasonably free from doubt. § 1579 of the Code of Civ. Pro. Order reversed. Opinion by Daniels, J.; Davis, P. J., and Brady, J., concur. POLICE. N. Y. SUPREME COURT. GENERAL TERM. FIRST DEPT. The People ex rel. Michael H. Swift, v. The Board of Police Commissioners. Decided Oct. 26, 1883. On the trial of a police officer before the police commissioners on charges preferred against him, when the case has been heard before less than three commissioners, judg ment can be rendered at a meeting of the board at which three of the four commis sioners are present, and such a proceeding is not in violation of rule 131 of the rules and regulations of the police department of the city of New York, requiring that when the testimony in a case is taken before less than three commissioners it must be laid before and examined by the several commissioners before judgment rendered there on. Certiorari to review the proceedings and order of the board of po lice commissioners in removing the relator from the force. Charges were made against the relator and he appeared before one of the police commissioners and testimony was taken in the matter. He subsequently appeared before a meeting of the board of commissioners at which three of the four members of the board were present, and at that meeting a resolution was adopted removing him from the force. He then commenced these proceedings to review such decision, claiming that it was in violation of rule 131 of the rules and regulations of the police department of the city of New York, which requires that when the case is heard by less than three commissioners the testimony shall be laid before and be examined by the several commissioners before judgment thereon. John D. Quincy, for relator. Richard J. Morrison, for respts. Held, That a meeting of three commissioners constitutes a legal board with full power to act in such cases. That the language of the rule recognizes the power of three commissioners to hear and determine such cases. That the words "the several commissioners" do not refer to the four commissioners, but to the several who constitute a board with authority to try and determine the case. That if four be present at the meeting, when the testimony has been taken by one, or less than three, it must be laid before and examined by the several commissioners" present; and so, if but three constitute the board, the testimony |