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Dunn v. Arkenburgh.

against the estate at the time of the death of the deceased. They have no reference to and do not embrace a claim brought into being by the personal acts of the representative, or a claim or demand arising solely out of matters independent of the estate of the deceased. Under such circumstances the claim is not one against the estate and therefore does not fall within these provisions of the Code. As the testimony authorized the Court to find that a proper discharge of duty on the part of the defendants required the payment of the money to the sheriff, it was also proper to direct the payment of interest thereon. (Matter of Trustees, 137 N. Y., 95).

We find no error in the judgment: it should be affirmed. All concur.

Note on action to compel delivery of personal property to sheriff.— Authority is given under Section 655 Code of Civil Procedure to the sheriff to bring such action, and it must be instituted in his name or in the name of the debtor. Hall v. Brooks, 2 Civ. Pro. 198.

The sheriff may bring an action to collect a debt attached before judgment in the action in which the attachment was granted. Davidson v. Bank, 5 Civ. Pro. 338.

The court has power over the money due under a contract and can direct payment in proceedings in aid of execution. Burnett v. Riker, 13 Civ. Pro. 338.

The Court also has the power to order the party having the property to expose it to levy. Chambers v. Bentley, 15 Civ. Pro. 222.

Property held by fraudulent transferers may be attached by the creditors of a fraudulent transferer and the conveyance set aside by an action brought by a sheriff in aid of the attachment. Harding v. Elliott, 25 Civ. 294.

Costs. The sheriff is a mere normal party and not liable for costs where the plaintiff by leave of the Court or judge obtains permission to bring action of his own attorney jointly. Section 677, Code of Civil Procedure. Grant v. Crittenton, 13 Civ. Pro. 123.

Costs against executor or administrator.-Where in the action against an administrator on a claim against his decedent brought by agreement in lien of a reference under the revised statutes, the claim presented was for $4,728.78 and the administrator interposed

Dunn v. Arkenburgh.

a counter claim for $2,624.55, and the plaintiff defeated the counter claim and recovered judgment for $621.55. The Court held in its opinion as follows: "When, however, as in this case the claim which the defendant seeks to enforce is without merit, and the plaintiff is compelled to overcome and resist it before he can obtain payment of that which is his due, then the inter position of such a claim makes an unreasonable resistance by the defendant to that of plaintiff and entitles the later when successful to the costs of the action. The attempt by the defendant to recover through the suit brought against her, a large counter claim against the plaintiff and its failure brings her within the cases provided for by section 1835 in which costs may be awarded to the plaintiff." Sutton v. Newton, 7 Civ. Pro. 333. Overheiser v. Moorehouse, 8 Civ. Pro. 11. But see Healy v. Murphy, 21 Civ Pro. 13.

The prevailing party upon a reference of a claim against the estate of a deceased person is entitled to recover the fees of reference and witnesses, and his other necessary disbursements as a matter of right. Krill v. Brownell, 10 Civ. Pro. 8; Larkins v. Maxon, II Civ. Pro. 298.

Upon the discontinuance of a reference under the revised statutes of a claim against a decedents estate, the defendant is entitled to statutory costs, and the fact that during the pendency of the action the Court of Appeals has for the first time held that a judgment of a justice's court is barred by the statute of limitations at the end of six years and that the claim in litigation is such a judgment is no reason why the plaintiff should be permitted to discontinue without costs. Agar v. Tibbetts, 18 Civ. Pro., 338.

The question whether costs shall be awarded against an executor or administrator is to be determined by the Court, and it seems that evidence tending to show whether the case is within sections 1835, 1836, relating to costs in such an action is to be received on the trial, nor to aid the jury in finding a verdict but to enable the Court to decide whether costs shall be awarded against the defendant. Schenck v. Rickaby, 20 Civ. Pro., 384.

When a claim arising upon a promissory note alleged to have been made by a decedent was presented to his executors, and by them rejected, and thereafter their counsel refused to refer the claim, and the plaintiff succeeded in an action brought thereon it was held that the plaintiff could tax costs against the executors, and that the refusal to refer was sufficient to justify the imposition of costs, and that it was not necessary to determine whether the claim had been unreasonably resisted. Clark v. Corwin, 21 Civ. Pro., 158.

Costs cannot be awarded against an administrator unless two things concur, viz.; Ist. Plaintiff's demand must have been pre

In re Caffrey.

sented within the time limited by the published notice requesting creditors to present their claims and 2nd. The payment must have been unreasonably resisted or the defendant must have refused to refer it. King v. Todd, 21 Civ. Pro., 114.

Where in an action against an administratrix upon a debt owing by her decedent the plaintiff had a verdict in his favor and thereupon entered judgment for the amount thereof and costs, which he taxed upon notice but without application to the Court for costs. Held that while the including of the costs in a judgment was premature and irregular and subject to be stricken out on motion of the plaintiff can satisfy the Court that he is entitled to them in order to do substantial justice the Court will disregard the irregu larity. Effray v. Masson, 22 Civ. Pro. 59; see also note on this topic, 21 Civ. Pro., 258.

The general rule is that costs will not be awarded against execuRuth v. Davenport, 22 Civ. Pro. 121.

tors.

Disbursements will be allowed although no reference is had. Outhouse v. Odell, 24 Civ. Pro., 289. See also note to this case at page 290.

Costs on appeal allowed. Benjamin v. Ver Nooy, 29 Civ. Pro. 121; see also note collecting cases on the topic of this note appended to Davis v. Gallagher, 29 Civ. Pro. 149 and 152.

IN RE CAFFREY.

SUPREME COURT, APPELLATE DIVISION, SECOND DEPART MENT, JUNE TERM, 1900.

SS3367, 3369, 3370.

Froceedings to determine damages, jurisdiction and power of commissioners-Appointment of commission-Pleadings—Appeal.

Under Laws 1897, c. 414 section 159, and Code Civ. Proc. sections 3369, 3370-commissioners appointed to assess damages for a change of grade have no authority to entertain a motion to dismiss the proceedings because of the failure of the property owner to present to the board of trustees a verified claim for damages within 60 days after the change of grade was effected.

A stipulation, between parties, that the commissioners may pass

In re Caffrey.

upon and determine the issues raised therein by the answer, with the same force and effect as though the issues so tried had been tried before a court or referee, will not give the commissioners jurisdiction to pass on a motion to dismiss the proceeding, because the petitioner's notice of claim for damages was not served within 60 days after the alleged change of grade, as required by Laws 1897, c. 414, section 159, since under Code. Civ. Proc. section 3367.

The jurisdiction of a court of general jurisdiction is presumed and is not questioned unless lack thereof is shown on the trial or appears on the record.

An appeal from an order confirming the report of the commissioners of assessment for opening a street presents no question of the regularity or validity of the proceeding, but involves the question only whether the commission properly discharged its function of ascertaining what compensation, if any, should be made to the petitioner.

(Decided June, 1900.)

Appeal from special term, Westchester county.

Application of James W. Caffrey for the appointment of commissioners to assess damages against the village of North Pelham for a change of grade in a street. From an order confirming the report of the commissioners, the village appeals. Affirmed.

Henry L. Rupert (William J. Marshall, on the brief). for appellant.

Milo J. White, for respondent.

JENKS, J.—In 1898 the village authorities of North Felham began proceedings for street improvements. The petitioner, under section 159 of charter 414 of the Laws of 1897 (the "Village Law"), filed a claim for damages to his premises by the change and the raising of grades of certain streets. The claim was disputed, and upon the application of the petitioner the special term of this court appointed commissioners to ascertain the damage. the day of the appointment this stipulation was made: "It is hereby stipulated, by and between the attorneys.

On

In re Caffrey.

for the petitioner above named and the village of North Pelham, that the commissioners appointed herein pass upon and determine the issues raised herein by the answer to the petition herein, with the same force and effect as though the issues so tried had been tried by the court or a referee, upon the application for the appointment of commissioners, as provided by section 3367 of the Code of Civil Procedure (known as the 'Condemnation Law'), and that all the rights of the parties to the above proceeding be, and the same hereby are, reserved to each of said parties in the event of an appeal therefrom taken by either party."

The commission proceeded, and just before the close of the testimony for the petitioner the learned counsel for the village said, "We have the right, after you introduce whatever testimony that you have, to dismiss the proceeding upon the ground of a failure to serve the notice within the statutory time of sixty days from the time of the change of grade." The chairman of the commission said, "All motions are reserved." Thereupon the petitioner rested. At the close of the testimony for the village the attorney moved to dismiss the petition and proceedings on the ground that the "petitioner's notice of claim for damages herein was not served within the statutory period of sixty days after the alleged change of grade," and upon grounds of error in the admission of certain testimony. The motions were denied, under exceptions. The commissioners reported in favor of the petitioner, and after due notice the report was confirmed.

The avowed purpose of this appeal is to obtain a construction of this part of section 159 of chapter 414 of the Laws of 1897: "A person claiming damages from such change of grade must present to the board of trustees a verified claim therefor, within sixty days after such change of grade is effected," the question being whether the words, "after such change of grade is effected," refer to when the work was done, or to when the resolution or ordinance

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