and new trial granted, costs to abide event. Opinion by Learned, P. J.; Boardman and Landon, JJ., con cur. INDEMNITY. N.Y. SUPREME COURT. GENERAL TERM. THIRD DEPT. Eugene A. Pratt, respt., v. Isaac Seeley, applt. Decided Nov., 1884. Defendant gave a bond to one S., commissioner of highways, to indemnify him in an action to be brought by him as such commissioner against C. & D. After that action was begun and had been at issue several years S., who was no longer commissioner, died. An administrator was appointed who stipulated in the action then pending that it be dismissed, and judgment for costs was thereupon entered against S. in favor of C. & D. This claim for costs and the bond of indemnity were assigned to plaintiff, who now seeks to recover here the costs against defendant. Held, That there could be no recovery; that the administrator could not enter into a stipulation of dismissal; and further that defendant was entitled to notice of the proposed abatement that he might prosecute the action if he chose to do so. Defendant in 1872 gave a bond to one Stevens, then commissioner of highways, to indemnify him as such in an action against Chapman & Dewey. The same month that action was begun in Stevens' name as such commissioner. The latter was not commissioner when he died, in 1875, and nothing beyond answer had been done in the action above mentioned. Letters of administration were issued on his estate. The administrator stipulated that the action be dismissed; this was done and judgments for costs were entered against S. in favor of Chapman & Dewey without the knowledge or consent of the defendant in this action. This claim for costs and the bond of indemnity were assigned to plaintiff. who seeks to recover the costs and did recover below. Scanlon & Meers, for applt. Cantwell, Paddock & Cantwell, for respt. Held, Error. When Stevens died there was no right in his administrator to continue the action. It should have been continued if at all by his successor in office. Code, 757. Neither the administrator nor his attorney could consent to a dismissal. Judgment was entered while the Code of Civ. Pro. was in force and its provisions apply. There was no valid abatement of the action, and if valid it was done with the express consent of Stevens' administrator. And so far as appears defendant had no opportunity, if he so desired, to continue the action. Judgment reversed, new trial granted, costs to abide event. Opinion by Learned, P. J.; Landon and Fish, JJ., concur. MUTUAL BENEFIT SOCIETIES. N. Y. SUPREME COURT. GENERAL TERM. THIRD DEPT. Samuel Massey et al., respts., v. The Mutual Relief Society, applt. Decided Nov., 1884. Defendant was incorporated under Ch. 267, Laws of 1875. It issued a certificate of membership to one H. payable upon death, one-fourth to H.'s wife and three-fourths to plaintiff Massey, not a relative. The certificate of incorporation of defendant did not state as an object the payment of moneys upon the death of a member. But the by-laws, which by the act defendant had power to make, provided for such payments to members' families or their assigns, and for the payment of benefits to beneficiaries designated by deceased members. Held, That plaintiff Massey, though not a member of H.'s family, could recover, and that the contract was not one beyond the powers of defendant. 66 members and to furnish aid to their families or assigns in case of a member's death." The court allowed a recovery by plaintiffs in the proportions claimed. J. M. Dunning, for applt. L'Amoreaux, Dake & Whalen, for respts. Held, That the recovery was proper. Hopkinson had a right to insure his own life and make the loss payable to Massey. He did not insure Massey's life and the company did not deal with the latter. The only question is whether an agreement by defendants with one of their members to pay the "benefit" to a person not in his family was beyond defendants' power. We think it was not. The certificate of incorporation clearly does not state the whole purpose of the society. But a by-law provides for furnishing aid to families or their "assigns," and another provides that the certificates are to be paid to the "beneficiaries" of deceased members designated by them. The word This is an action brought upon a certificate of membership in defendant issued to John Hopkinson, and upon his death the avails to be paid, one-fourth to his wife Elizabeth and three-fourths to plaintiff. The assessment due by and raised upon Hopkinson's death was $2,000. Defendant claims that plaintiff Massey, who sues with the wife, cannot recover because he did not belong to the family. So far as appears he had no relations whatever with the deceased. And defendant alleges that there was no power in the society to issue a policy payable in part to a stranger. Defendant was incorporated under Ch. 267,"beneficiary" is general and there Laws of 1875, as amended by Ch. is nothing to indicate that they 53, Laws of 1876. Its object, as must be confined to persons in the declared by the certificate of incor- member's family. poration, was "to combine the efforts of all its members with the view to effect mutual relief, aid and systematic contributions of benevolence and charity during their lifetime and to their respective families from time to time when rendered necessary by sickness or pecuniary distress." The by-laws declared its object to be to secure mutual benefit to the Vol. 20-No. 12b. The law, Ch. 267, Laws of 1875, says very little as to the powers of the body corporate, but gives it power to make by-laws, &c. The certificate of incorporation is to express only the particular business or object of the society. And it is evident that much of the detail of the business must be looked for in the by-laws. Judgment affirmed, with costs. Opinion by Learned, P. J.; Bockes, J., concurs; Landon, J., not acting. ASSESSMENTS. N. Y. SUPREME COURT. GENERAL TERM. THIRD DEPT. Margaret Moore, exrx., v. The City of Albany. Decided Nov., 1884. A city took title to a strip of land for a street. The street as laid out passed through hills and over ravines. In making this street, where it passed through hills, the contractor made slopes on adjacent private property at a proper angle to prevent slides, and where the street crossed ravines the fillings were made in part on private property, in order to secure the established width at grade. The adjacent owners encroached upon acquiesced in this construction. Held, That one assessed for the improvement but whose lands were not invaded and who had paid the assessment under protest could not recover the sum paid. An assessment cannot be declared valid in part and plaintiff be given judgment for another part declared void. It seems that in such a case the city would not be liable even to an adjacent owner for cuts and fills made upon his land. Plaintiff seeks to recover an assessment of $2,164.62 paid by her testator for excavating, filling and forming a street. The line ran over land hilly, irregular and cut by ravines, and this made different grades necessary. The width of the street was sixty-six feet. To make the surface that width at the grade through the ravines large quantities of earth were deposited upon lands of adjacent owners, which had not been taken by the city. To make the surface that width at the proper angle to prevent slides, and these slopes were made on private property. Drains were laid crosswise the street and on either side projected into private property. About one-third of the filling, about one-eighth of the excavating, and about foursevenths of the drains were out side of the 66-foot strip taken by the city. The city took title in 1876 to the strip, under Ch. 77, Laws of 1870, as awarded by Ch. 302, Laws of 1872, and was thereby authorized to acquire title to the land, with the appurtenances, for the purpose of laying out the street. There was also an unauthorized change of grade by which plaintiff claims he was damaged in a small amount. Plaintiff's testator saw the work in progress and appeared by counsel before the board of apportionment when owners were heard as to the manner in which the cost of the improvement should be assessed. Afterwards and in 1877 he paid his assessment, but under protest. In 1881 one Clowery, upon whose land among others the drains and fillings had been extended and deposited, obtained a judgment against the city vacating the assessment as to his lands. This judgment stands. Thereafter Ch. 459, Laws of 1881, was passed, confirming the assessment. Under this act Clowery paid a part of the original assessment. The case was submitted under Code, § 1279. F. M. Dana, for plff. S. W. Rosendale, for deft. Held, That plaintiff could not through hills the hills were sloped recover. His lands are not touched by the excavating and filling or by the drains. If it were necessary to pass upon the question we should be of opinion that the city had a right without compensation to cut away the slopes where the street ran through a hill, even though this cutting was on private property, 4 N. Y., 195; 20 How., U. S., 135; 2 Dillon Mun. Corp., § 782, note, and that where the street passed over a ravine the city might without being liable in damages fill so that the street was 66 feet wide at grade, even though the filling projected on either side upon private property. See Cooley Cons. Lim., 251. But the question here is not whether the city is liable in damages to an adjacent owner. It is whether plaintiff's plaintiff's testator acquired through the proceedings a right to a street graded according to the contract. The street exists and the grading and cuttings have not been objected to by the adjacent owners. There has been an acquiescence by the latter for some time. We do not think they could now remove the drains or fillings even if they could recover damages; and we doubt whether these adjacent owners could show damages. As to the drains they are not drains laid through private property. They are transverse, laid necessarily necessarily at the bottom of the filling, are a part of it, and of course are longer than 66 feet. Plaintiff asks to recover, if not the whole amount, at least certain amounts, $690.73, what he was charged, proportionately, for filling and drain beyond. the 66 feet and for change of grade. We do not think this admissible. Plaintiff's argument must rest on the ground that the making of these slopes and fillings was unlawful and that the adjacent owners may therefore restore their lands to the original condition; that the city cannot. retain the structure for which assessment has been laid. If this be so then testator could not be required to pay any part of the assessment. An incomplete street blocked up and torn down by the lawful action of adjacent owners is not a thing for which an assesment could be made. We do not think there is any rule justifying a division of an assessment. Judgment for defendants. Opinion of Learned, P. J.; Landon, J., concurs; Bockes, J., dissents and gives judgment to plaintiff for $690.73. PARTNERSHIP. INSPECTION. N. Y. SUPREME COURT. GENERAL TERM. FIFTH DEPT. Sylvia M. Newman, admrx., v. Henry L. Newman, admr., et al. Decided Oct., 1884. The administrator of a deceased partner is entitled to a discovery and inspection of partnership books, etc., with leave to take coples, for the purpose of framing a complaint for an accounting and settlement of the partnership affairs, notwithstanding the article of agreement provide that the survivors should carry on the business until the expiration of the time limited for the existence of partnership, and that all the property should remain and continue in the business; nor is it necessary to aver that the books contain entries showing any in debtedness to the deceased or show any violation of the partnership agreement or disclose any matters in respect to which a discovery is sought. If a co-administrator, being also a surviving partner, refuses to join in such an action he may be made a defendant both as administrator and individually. Appeal from order granting a discovery and inspection of partnership books, &c. The petition showed that plaintiff was the widow of Leroy Newman and administratrix, and Henry L. Newman the administrator of his estate; that said Henry L. and the other defendants were the surviving members of a co-partnership existing between them and deceased; that said firm was indebted to deceased in the sum of $40,000, as petitioner was informed and believes (stating the sources of her information); that by the articles of agreement true books of account should be kept, wherein each partner should enter all sums by him received, paid out, or expended in and about the business, and all matters pertaining thereto; that they should be used in common, so that each might have access thereto without interruption or hindrance of the other; and that once in each year they should render a perfect and just account of all the profits, &c., made, and of all losses by either of them sustained, and also of all receipts, payments and disbursements; that said surviving partners have not fully kept and performed said agreements; that defendants refused to allow plaintiff to examine the books or give her any information as to their contents, and that she has no means of knowledge except from the books themselves; that no complaint has been drawn for want of the necessary information as to the amount of the indebtedness to the deceased or of the amount of indebtedness of the members to the firm, if any, or of the condition of the real and personal property or the amount thereof; that a discovery and inspection is necessary to enable her attorney to prepare the complaint, as she is advised, &c.; that the defendant Henry L. refused, as such administrator, to join with plaintiff in an action for dissolution. of the partnership, for an accounting, etc. Plaintiff's attorneys made affidavit as to the necessity of this information to enable them to draw the complaint, and as to defendants' refusal to permit them to inspect the books, &c. Upon a rule to show cause the affidavit of Henry L. stated that the firm kept true and correct books; that they were and always had been open to an inspection of every member; that within one year after Leroy's death defendant made a just and true inventory of all the property, and made a statement showing the exact amount of the increase of the property and the amount of profits of the business as accurately as the same could be ascertained, and delivered the same to plaintiff; that they paid to plaintiff the share of Leroy's profits for the year subsequent to his death, under the articles of copartnership, and that nothing whatever was due and |