An investigation upon charges made against a member of the police force was had,

and the evidence taken under the rules of the Department before one commis

sioner, who before the final action of the

Board on the evidence ceased to be a

member of the Board. Held, That the Board was not ousted of jurisdiction by the termination of the office of the Commissioner who took the evidence; that under their rules and the statute they could properly act upon such evidence taken before a former member of the Board, and that their removal of the police officer thereon was proper.

The question of the right of the accused to counsel in investigations upon charges against the police force before the New York Board of Police Commissioners is one addressed to the discretion of that body.

Appeals from orders of Special Term, reversing on certiorari the decision of the Commissioners of Police removing the relators.

Charges were made against the relators before the Board of Police Commissioners, and the accused were notified and an investigation of the charges were had before one of the Commissioners, who took the evidence by question and anBefore final action by the Board upon the evidence taken

swer.

the commissioner who took the testimony ceased to hold the of fice.

The Board, notwithstanding, proceeded to act upon the evidence taken by the former commissioner, and removed the relators. The court below reversed

the action of the commissioners upon the ground that the Board could not act upon the evidence taken before a former commissioner after his official relations with the Board had terminated.

G. P. Andrews and S. G. McNary, for applt.

D. A. Levien, for relators. Held, That the Board of Police Commissioners is not ousted of jurisdiction, where testimony is taken by one of their number for the purpose of being laid before the whole Board for its examina tion and decision, by the accident. of his death or the intermediate determination of his office.

That the Board could properly act upon the evidence taken before the former commissioner after his official relations with the Board had ceased.

The Board of Commissioners does not constitute a court, and its proceedings should not be controlled or decided by the same degree of formality that would be required upon a charge of a criminal offence before ordinary tribu nals of justice. 17 W. Dig., 281.

Mohr case, 27 Hun, 462, reversed, and Gilhooly case, 23 Hun, 353, followed.

It is within the discretion of the Board to allow the accused counsel on the investigation.

delivery of the conveyance, before making the first payment defend ant was not precluded from availing himself of the provisions of the contract which gave him a year after the first payment matured to make the second payment. 1 Seld., 247.

Defendant did nothing showing an intention to waive the perform ance by plaintiff of the conditions precedent to plaintiff's right to the final payment.

The suit having been brought for the final payment in less than a year from the time of the execution and delivery of the convey. ances, was prematurely brought and the complaint, therefore, was properly dismissed.

Judgment affirmed.

Opinion by Daniels, J.; Davis, P. J., and Brady, J., concur.

LIMITATION. SALE OF DECEDENT'S REAL ESTATE.

N. Y. COURT OF APPEALS. Mead, respt., v. Jenkins et al., applls.

Decided Feb. 8, 1884.

Creditors cannot compel an accounting by an executor until eighteen months after the granting of letters, and proceedings to sell real estate to pay debts cannot be instituted until after such time as may be actually consumed in compelling an accounting. A claim was due in February, 1871; the debtor died in March, 1871, and admin

istrators were appointed in April, 1871, who accounted in October, 1877.

Α

proceeding to sell the real estate to pay the

the claim was begun in February, 1880.

Held, That it was not barred by

statute.

An application for a sale of the real estate of J., deceased, was denied by the surrogate on the ground that the claim on which the proceedings were instituted was barred by the statute of limitations. The claim was due February 11, 1871. J. died March 19, 1871. Letters of administration were granted April 14, 1871. The proceedings in question were commenced February 6, 1880. The administrators accounted October 17, 1877, and the petitioner received $355 on account of his claim, his share of the personal estate.

M. L. Cobb, for applts.
J. T. Marean, for respt.

Held, That the proceeding for the sale of the real estate could not be commenced until after the accounting by the administrators; that as the limitation within which an action could have been commenced upon the plaintiff's claim was six years, the statute had not so run as to constitute a bar.

The term of eighteen months after the death of a testator or intestate is not a part of the time limited for the commencement of an action against the executor or administrator.

The creditors could not have.

compelled an accounting until eighteen months after the granting of letters, and proceedings to sell real estate to pay debts could not be instituted until after such time as might be actually consumed in compelling an accounting.

The proceedings here having been stayed by statutory prohibition, the time of the continuance of the stay was not a part of the

time limited for the commencement of the same. Code of Civil Proc., $406.

Order of General Term, reversing decree of surrogate denying application, affirmed. All con

Per curiam opinion. All con

cur.

Franklin Pierce, for applt. F. A. Lyman, for respts.

Held, That the power to appoint such receiver existed, 4 Edw. Ch., 412; Code of 1848, § 244; that this power was not abrogated by the provisions of section 713 of the Code of Civil Procedure; that the language of said section is not pro

Where only a portion of the mortgage debt is due and premises consist of a farm divided into equal parts which can be sold separately, a receiver of the whole farm

should not be appointed. Reversing S. C., 17 W. Dig., 10.

This action was brought for the foreclosure of a mortgage which was given for the purchase price of certain premises. No bond accompanied the mortgage, and the rents and profits were not specifically pledged. The action was commenced May 29, 1882, by service of a summons, complaint, petition, affidavits, order and notice of a motion for the appoint ment of a receiver of the rents and profits of the mortgaged premises. On June 3d, 1882, a receiver of the premises was appointed. The grounds upon which the appointment was asked were that the premises were inadequate security and that the mortgagor was not liable for the deficiency.

sive and declaratory, and although it does not, in terms, re-enact subd. 5, of section 244 of the Code of Procedure, an analagous provision is substantially included in the general terms of section 4 of the Code of Civil Procedure, which provides that each of the courts therein mentioned, including the Supreme Court, "shall continue to exercise the jurisdiction and powers now vested in it by law, according to the course and practice of the court, except as otherwise prescribed in this act." The power to appoint receivers in mortgage cases was inherent in the Court of Chancery before the Code of 1848.

When default has been made in the condition of the mortgage the mortgagee at once becomes entitled to a foreclosure of the mortgage and a sale of the mortgaged premises, and on general principles of equity the court may make the decree, when obtained, relate back to the time of the commencement of the action, and where necessary for the security of the mortgage debt may appoint a receiver of the rents and profits accruing in the meantime, thus anticipating the decree and sale. decree and sale. 5 Paige, 40; 3 Sandf. Ch., 69; 4 id., 405.