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accordance with the provisions of existing laws relative to the opening of the street or avenue for which the said commissioners were appointed, except that any parcel of land deemed to be benefited may be assessed to the extent provided for in section six of this act, and the amount awarded for and by reason of such discontinuance or closing shall be included in the amount of the expenses to be assessed upon the property benefited in said proceeding. From and after the making and filing of the order of the court instituting and consolidating said proceedings as aforesaid no further or other proceeding shall be taken relative to ascertaining and determining the compensation which should be made for such discontinuance or closing."

It is contended by the learned counsel for the city that the sole purpose of this section was to enable the property owners and the city to have the benefit of the knowledge and experience acquired by the commissioners in the street-opening proceeding, in making the award of damages and assessments on account of the closing of a street or avenue. This reason seems quite insufficient for such legislation, and the explanation is not satisfactory. In the first place, it will be observed that the only title of the proceeding is for a street opening, and a sound judicial discretion is vested in the court, whether or not to embrace in the opening proceeding the making of awards and assessments for closing another street or avenue. It is thus manifest that it was only intended that the two should be embraced in one proceeding when the closing of the street or avenue might well be deemed a benefit to some or all of the property affected by the street opening proceeding. Furthermore it would scarcely do to impute to the Legislature an intention to allow the judgment of the commissioners as to the damages and assessments on account of the closing of a street to be influenced by the evidence taken or knowledge acquired in the street-opening proceeding, which, according to the respondent, was the only purpose of this section. It is evident to my mind that the Legislature intended that the awards for street opening and for the closing of a street or avenue, and the assessments for benefits for each, should be joined as one proceeding when the circumstances are such as to clearly indicate that much or all of the property affected by one will be affected by the other. Moreover, by the express language of the act, which is free from ambiguity, the Legislature has declared that the assessments for the awards made for damages sustained by the closing of the street or avenue shall be included in the amount of the expense to be assessed upon the property benefited in the proceeding. This clearly refers to the street-opening proceeding. If, as contended by the respondent, it contemplates that such a union makes two proceedings, and that this reference, lastly referred to, relates to the proceeding for determining the awards and making the assessment on account of the closing of a street or avenue, how is the language of the act, that the amount awarded on account of the discontinuance of the street or avenue shall be included in the amount of the expenses to be assessed on the property benefited, given effect? If the Legislature contemplated two proceedings under that section, why would this language be employed? Would it not have directed that the awards for damages for the closing and the expenses of that part of the proceeding should be assessed in a separate assessment roll? Furthermore, by the reference to section

and 118 New York State Reporter 6 of the act, it will be observed that the commissioners are left at liberty to assess upon the bed of the street or avenue closed the full amount of the benefit sustained by it, without restriction. It was evidently contemplated that where there was a surplus of an award for part of a parcel taken for the street opening, and the benefit sustained by the remainder of the parcel, and the remainder of the parcel was also benefited by the closing, the benefits should be offset against the award, and that the city should only be obliged to pay the owner the surplus. On the other hand, if a particular parcel is benefited by the opening and damaged by the closing, the award for damages should be applied in satisfaction or reduction of the assessment. This was the practice more clearly defined for embracing in one proceeding awards and assessments for a street opening and for the closing of an adjacent street under sections 8, 9, c. 213, p. 205, of the Laws of 1818, after which it is evident that the act of 1895 was framed. See, also, Matter of John and Cherry Streets, 19 Wend. 674. Under the mandatory provisions of section 14 of the act of 1895, I think that the only report that the court is authorized to confirm is one embracing all the awards and all the assessments. While it is unnecessary, as has already been observed, to decide the question now, I incline to the opinion, and such I think is the effect of the opinion of the Court of Appeals, that it would be both constitutional and valid to embrace all of the assessments in one roll, without itemizing the amounts separately assessed upon each parcel on account of the street-opening proceeding, and for damages for closing the street or avenue. I think the Legislature contemplated that in such circumstances both proceedings became merged or consolidated into one, and that the whole is but a single improvement, and that the damages sustained by the entire improvement may be embraced in one award, and that likewise the benefits sustained by the entire improvement may be assessed in one item upon each parcel. But if this should be impracticable, or would render the assessments invalid, then still the legislative mandate for one assessment roll may still be constitutionally complied with by this court laying down a rule that the commissioners, in making the awards, shall state in their report, separately, the amount awarded as damages to each parcel for lands acquired for opening the street and for damages sustained by closing the street or avenue, and shall likewise in the assessment roll state separately the amount which each parcel is deemed to be benefited by the opening of the street and by closing the street or avenue. Manifestly, this is practicable, and the report would thus show how the commissioners have acted, and it could readily be seen whether, in their judgment, all of the property benefited by opening the street is benefited by the closing, and thus these respective questions would be as clearly and readily presented for review as if there were separate reports of awards and assessments.

I therefore vote for a reversal of this order.

(87 App. Div. 86.)

In re PROVOST'S ESTATE. (Supreme Court, Appellate Division, Second Department. October 16, 1903.) 1. ADMINISTRATORS-RECEIPT OF FUNDS-LIABILITY-INDORSEMENT OF CHECK.

Where a check payable to the joint order of administrators was indorsed by one of them, and then taken by the other, who collected the money and appropriated it, the first administrator should not be regarded

as having received the fund, and hence was not chargeable therewith. 2. SAME-ACCOUNTING-SURVIVING ADMINISTRATOR.

A surviving administrator may be compelled to account by the surety

on the deceased administrator's bond. 3. SAME-ACCOUNTING-ISSUES.

In proceedings by the surety on a deceased administrator's bond to compel the surviving administratrix to account, the surety is not bound by the survivor's assertion of facts tending to release her from liability as to a certain fund received by the estate, but the surety is at liberty to prove possession and control of the fund, or such negligence as might charge her with liability.

Appeal from Surrogate's Court, Kings County.

In the matter of the estate of David S. Provost, deceased. Appeal by Harriet T. Provost, surviving administratrix, from a decree confirming a referee's report, and directing an accounting sought at the instance of Sarah Provost, a surety on the deceased administrator's bond. Modified.

Argued before BARTLETT, WOODWARD, HIRSCHBERG, JENKS, and HOOKER, JJ.

O. B. Thomas, for appellant.
Robert H. Wilson, for respondent.

HIRSCHBERG, J. Letters of administration on the estate of David S. Provost, deceased, were issued on August 3, 1892, to the appellant, Harriet T. Provost, his widow, and John C. Provost, his father. The only asset of the estate was a policy of life insurance, upon which there was collected on September 24, 1892, the sum of $5,054.15. John C. Provost died in the year 1894, and the proceedings under review were instituted by the respondent, Sarah Provost, a surety on the administrator's bond, to compel an accounting by the appellant as surviving administratrix. An order having been made requiring such accounting, the appellant filed an account, alleging that no property of the estate had ever come into her hands or under her control, excepting the interest on the sum of $5,054.15, the life insurance money referred to, from October, 1892, to July, 1894, and afterwards filed an amended account, alleging that none of the property of the estate ever came into her hands or under her control. The appellant contends that she was in error in the allegation that she had received the interest of the fund for the period stated. Whether her explanation of the circumstances in which she made the admission is to be regarded as satisfactory and conclusive, need not now be determined, the serious controversy between the parties upon this appeal being as to her liability to account for the receipt and disposition of the principal sum.

and 118 New York State Reporter On objections filed by the respondent to the amended account, a reference was had, and upon the hearing it appeared without dispute that the policy of insurance was payable to the estate of the deceased; that a check for the amount, made payable to the joint order of the administrators, was indorsed by both; and that a receipt for the money, also signed by both, was given to the insurance company. The check was brought to the appellant for her indorsement by a son of her co-administrator, and was taken away by him when indorsed; the money on it being collected by the co-administrator, and so appropriated by him as to result in a total loss to the estate. No part of the principal fund was ever paid to the appellant, nor did any part of it pass through her hands, except in the matter of the indorsement of the check. On this proof the referee found as a fact "that the principal of this estate, amounting to the sum of five thousand and fifty-four 15/100 dollars, collected on or about the 24th day of September, 1892, was received by said Harriet T. Provost as administratrix of David S. Provost, deceased, and that she is chargeable with said amount, together with interest thereon from the date that it was so collected." By the decree appealed from, the referee's report is confirmed, and the appellant is required to render and file "a proper and complete account, charging herself with the principal of this estate, to wit, the sum of five thousand and fifty-four 18/100 dollars, and also with interest thereon from September 24, 1892, and showing her disposition of the same." The decree amounts to an adjudication that the appellant is liable for her associate's defalcation. It is an adjudication confirming the finding of the referee that she has actually received the life insurance money, and it is clear that, if she had received it and paid it over to her co-administrator, she would be liable for his subsequent default. The indorsement of the check, however, is not equivalent to a receipt of the money. This seems to have been expressly held in Paulding v. Sharkey, 21 Hun, 276, affirmed in 88 N. Y. 432. In that case three executors conveyed real estate under a power, but the purchase price was paid by check to the order of one of them. The payee indorsed the check over to one of his associates, by whom it was collected, and it was held that only the executor who collected it and his estate could be regarded as liable for the fund. The Court of Appeals considered only the joint act of signing the deed, the question of the liability of the payee of the check by reason of its indorsement not being under review, and the conclusion reached was that such joint act, “when necessary and only formal,” was "insufficient of itself” to impose liability. But the General Term decision, so far as it was in favor of the executor who indorsed the check, was not appealed from, and it is an authority for the proposition that, if the check in this case had been made payable to the appellant alone, her mere indorsement and delivery of it to her associate would not, in the absence of negligence, render her liable for his subsequent defalcation.

The general rule governing the question of liability is laid down in Bruen v. Gillet, 115 N. Y. 1o, 21 N. E. 676, 4 L. R. A. 529, 12 Am. St. Rep. 764, that where one of two or more trustees simply remains passive, and does not obstruct the collection by a co-trustee of moneys belonging to the trust fund, he is not liable for the latter's waste, but if he himself receives the funds, and either delivers them over to his associate, or does any act by which they come into the sole possession of the latter, or under his control, and but for which he would not have received them, such trustee is liable for any loss resulting from the waste. The actual receipt and possession of the money are essential to the creation of the liability. In that case the funds were on deposit to the credit of two trustees, subject to their joint check. They accordingly had been actually received by both, and it was held that the act of transferring the funds from the joint account to the individual account of one of the trustees rendered the other liable for a misapplication of the fund, inasmuch as he signed the checks by which the transfer was effected. The case was distinguished from Paulding v. Sharkey, supra, in that the receipt of the check in the latter case was not the receiving of the money, and its indorsement was not a transfer of the possession of the fund represented by it. The court said (page 16, 115 N. Y., page 677, 21 N. E., 4 L. R. A. 529, 12 Am. St. Rep. 764):

"In cases where a debt due to the trust estate by a debtor has been paid to one of two or more trustees, and the debtor has required, as a condition of such payment, that a receipt should be joined in by all the trustees, in such case the signing of a receipt by the trustees who did not personally receive the money has been held to be merely frrmal or necessary for the purpose of obtaining the money from the debtor, and that they who did not receive the money in fact were not bound by their written admission of its receipt for the purpose named, and were not liable for the failure of the one who did in fact receive it to properly apply it. Of this class is the case of Paulding v. Sharkey, 88 N. Y. 432. There the three executors were empowered to sell the real estate, and, acting under such power, it was sold, and all the executors joined in the conveyance. But the price was paid by the purchaser by check payable to the order of one of the executors, and delivered to him. He indorsed and delivered it to his coexecutor, who also indorsed it and received the money; and the court held that the indorsement by the executor to whose order the check was payable was a mere formal matter, necessary for the purpose of obtaining possession of the purchase money from the purchaser, and, as matter of fact, the possession did not come into the hands of that executor to whose order the check was payable, but that it did come into the bands of that one of them who immediately drew the money upon the check after it was indorsed."

In Davis v. Kerr, 3 App. Div. 322, 38 N. Y. Supp. 387, this court held that the presentation of an account in the Surrogate's Court in which an investment is credited as standing in the names of two trustees is sufficient proof of the receipt and joint possession of the trust moneys. To the same effect is Glacius v. Fogel, 88 N. Y. 434, 443. It would seem to follow from these decisions, and the others which have been previously cited, that the learned referee was in error in this case in holding that upon the proof before him the appellant was to be regarded as having received the principal fund in question, and that the learned Surrogate's Court was in error in adjudging that she should charge herself on an accounting with that fund and the interest thereon, and that she should also be required to show the manner in which she had disposed of the same.

The appellant, having accepted the trust, is doubtless compellable to account as surviving administratrix. She appears to be asserting against the respondent, as surety, a claim upon the bond, and it may

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