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sented by the said judgment, was also executed and delivered to the said bank.

Nearly one year after the first assignment to the National City Bank, in July, 1899, and on the 4th day of May, 1900, William Keenan, one of the defendants in this action, recovered a judgment against Richard Gibbons individually; and on the 25th day of May, 1900, in proceedings supplementary to execution, the defendant Daniel E. Delavan was appointed receiver of the property and assets of the defendant Richard Gibbons, individually. November 14, 1900, the receivership was extended to the judgment of the appellant Audley Clarke, who urges upon this appeal that the property of the firm of M. Gibbons & Son was vested absolutely in Richard Gibbons, and that the assignments of the several interests in the judgment which he had secured as the surviving member of the firm while under the injunction of the order in supplementary proceedings were void. A similar contention is made on the part of the defendant Arthur T. Stoutenburgh, who has been elected a trustee in bankruptcy under proceedings instituted by petition on the 17th day of June, 1900, against Richard Gibbons, personally.

It seems to us entirely clear that the judgment against the plaintiff never became the property of Richard Gibbons, except as to what might remain after the discharge of the equitable claims of the creditors of the firm of M. Gibbons & Son, and that Richard Gibbons, as surviving member of the firm, was never under any restraint in the proceeding supplementary to execution, nor in the bankruptcy proceeding, both of these proceedings being directed against him personally, and it appears that the fund now in court is not sufficient te meet all of the claims against the firm of which he was the surviving member. It is equally obvious, if the fund belonged to him in his capacity as surviving member of the firm, that he had an equitable right to make an assignment of a sufficient amount to meet the obligations of the firm, either to the National City Bank or any other creditor, legal or equitable, of M. Gibbons & Son. In fact, the entire question here presented is whether the fund now in court belongs to Richard Gibbons, as surviving member of the firm of M. Gibbons & Son? If it does, then there can be no doubt as to the correctness of the distribution which has been directed. The survivor of a partnership does not take the assets as a trustee. He holds the legal title, subject to such equitable rights as the representatives may have to the due application of the assets to the payment of partnership debts; and, until these are discharged, no one other than the creditors can have any right to the property. Williams v. Whedon, 109 N. Y. 333, 338, 16 N. E. 365, 4 Am. St. Rep. 460. "It is well settled, by authority," say the court in the last-cited case, "that partners may lawfully make general assignment of their partnership property for the payment of firm debts, and may in such assignment make such preferences as they deem just and proper; and we can see no reason why the death of one of the firm should deprive the survivor, upon whom is devolved the exclusive management of the firm assets, of the right to make a similar disposition of the assets." See Russell v. McCall, 141 N. Y. 437, 447, 36 N. E. 498, 38 Am. St. Rep. 807,

and authorities there cited; Dodge v. McKechnie, 156 N. Y. 514, 520, 51 N. E. 268, and authorities there cited. In the Williams Case, supra, it was said, "If the assets in such case are insufficient to pay the firm debts in full, it is just and proper for the survivors to distribute them in accordance with the principles of justice and equity, and pay one creditor in preference to another, if they deem that equitable;" and that is exactly what has been done in the present case. The survivor has made assignments of interests in the fund now in the hands of the court to pay the debts owed by the firm of M. Gibbons & Son, or which have been contracted by the survivor in completing the contracts of that firm, in order that he might make the funds of the firm available for the discharge of its obligations, and the fact that there is not enough to pay all of the creditors does not operate to vitiate the assignments which have been made in the payment of the firm debts. All of the claims which are provided for in the judgment, and which exhaust the fund available for their payment, grow out of claims against the firm of M. Gibbons & Son, or against the individual members of that firm, or the survivor, as such (including legal services necessary to the securing of the fund in suit); and, as Richard Gibbons testified that everything he did after the death of his father was done to wind up the affairs of the old firm, it seems to us that the evidence in support of the proposition that the fund in court belongs to the creditors of the firm is so far conclusive that it ought not to be disturbed on appeal. The learned court at Special Term has, in its decision, given in detail the grounds for the determination in each case, showing the circumstances out of which the assignment grew, and it does not seem necessary to follow them out. The correct principle has been adopted in disposing of the questions involved, and we find no reason for reversing or modifying the judgment in any respect; the exceptions taken having no material bearing upon the questions involved.

The judgment appealed from should be affirmed, without costs. All

concur.

ELINSKY v. BERGER.

(Supreme Court, Appellate Division, Second Department. November 13, 1903.) 1. MUNICIPAL COURTS-JURISDICTION-TITLE TO REAL ESTATE-WHEN INVOLVED. In an action in the Municipal Court to recover cash deposited by plaintiff under a contract of sale of defendant's real estate, it appeared on the trial that an adjoining building encroached upon the property so that complete possession could not be given. Held, that title to real estate was not involved so as to oust the court of jurisdiction under section 184 of the Municipal Court act (Laws 1902, p. 1545, c. 580), requiring that court to dismiss a complaint where it appears on plaintiff's own showing that the title to real property is in question and disputed by defendant.

Appeal from Municipal Court of New York.

Action by Benjamin Elinsky against Samuel Berger. From a judg ment for plaintiff, defendant appeals. Affirmed.

Argued before GOODRICH, P. J., and BARTLETT, WOODWARD, HIRSCHBERG, and HOOKER, JJ.

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John J. Kuhn, for appellant.
Louis J. Altkrug, for respondent.

HIRSCHBERG, J. The only point presented by the appellant is that the Municipal Court had no jurisdiction of the action, because the title to real estate was in question. The action is to recover a sum of cash deposited by the plaintiff under a contract of sale of certain real estate belonging to the defendant in the borough of Brooklyn. It was conceded that an adjoining building encroached upon the property from two to four inches, so that the defendant could not give complete possession, and, on this fact appearing, the defendant claimed that the case was brought within the terms of section 184 of the Municipal Court act (chapter 580, p. 1545, Laws 1902), by which the court is required to dismiss the complaint where it appears by the plaintiff's own showing that the title to real property is in question and the title is disputed by the defendant. It is unnecessary to consider the cases cited by the parties. There was no title in dispute. The action is for damages for breach of contract, and the right of action is established on proof of a failure to convey as agreed upon for any cause with which the plaintiff is not legally chargeable. The difficulty in this instance arose from the fact that the defendant's property is so far incumbered as to deprive him of the power of transferring possession. His title, however, was in no sense disputed by the plaintiff, and the case was not one of those contemplated by the statThe judgment should be affirmed.

ute.

Judgment of the Municipal Court affirmed, with costs. All concur.

PEOPLE ex rel. BOYLE v. GREENE, Police Com'r.

(Supreme Court, Appellate Division, First Department. November 13, 1903.) 1. MUNICIPAL CORPORATIONS-POLICE FORCE-APPOINTMENT AS DETECTIVETEMPORARY APPOINTMENT.

3 Laws 1901, p. 122. c. 466, § 290, provided that those acting as detective sergeants on April 1, 1901, should not be reduced in rank or salary, except in case of removal as provided by law for officers of the police force. A patrolman was assigned to duty in the detective bureau for five days, and continued in that position by respective assignments at the expiration of each five-day period. Held, that he was not within the statute, since his appointment was merely temporary, and he ceased to become entitled to such position at the expiration of each five-day period. 2. SAME EFFECT OF STATUTE-TIME.

3 Laws 1901, p. 122, c. 466, § 290, providing that those acting as detective sergeants on April 1, 1901, should not be reduced in rank or salary, save in case of removal as provided by law for members of the police force, applied only to those who continued in that position until the act took effect in January, 1902.

Appeal from Special Term, New York County.

Mandamus by the people, on the relation of William F. Boyle, to compel Francis V. Greene, police commissioner of the city of New York, to recognize the relator as a detective sergeant. From an order granting a peremptory writ, the police commissioner appeals. Reversed.

Argued before VAN BRUNT, P. J., and HATCH, PATTERSON, INGRAHAM, and LAUGHLIN, JJ.

Terence Farley, for appellant.

Hyacinthe Ringrose, for respondent.

HATCH, J. It appears from the record in the present proceeding that prior to April 20, 1901, the relator was a patrolman upon the police force of the city of New York. On that day he was assigned to the performance of duty in the detective bureau of such police force, under the terms of the following order:

"New York, April 20th, 1901. "Captain Titus, Detective Bureau-Dear Sir: Patrolman William F. Boyle, of Twenty-Fifth Precinct, is hereby temporarily assigned to duty in your office for five days, from 8 a. m., 20th inst.

"William S. Devery,

"First Deputy Commissioner of Police."

Pursuant to this assignment, and in accordance with its terms as to character and duration, the relator was continued in this position. by respective assignments at the expiration of each five-day period up to and including August 8, 1901. On the 9th day of August, 1901, the then police commissioner of the city of New York issued an order to the force, commanding officers of precincts and squads, including the detective bureau, which, among other things, provided, "All your details and assignments of patrolmen are hereby countermanded, to take effect at 6 p. m., 12th inst." Acting under this order, the relator was relieved from his temporary assignment, and acted thereafter as a patrolman upon the police force of the city. The learned court below held that under the decisions of the Court of Appeals in Matter of Sugden v. Partridge, 174 N. Y. 87, 66 N. E. 655, and Matter of Fay v. Partridge, 174 N. Y. 526, 66 N. E. 1007, the relator became, by virtue of his assignment, entitled to the position which he occupied thereunder, and, reaching this conclusion, directed that a peremptory writ of mandamus issue, commanding his restoration to such rank, with all of the privileges and emoluments belonging thereto. We are of opinion that the relator has not brought himself within the provisions of the act which was the subject of construction by the Court of Appeals, and that he is not entitled to the writ which has been granted. We think that there are two fatal objections to his claim, and that the case of Matter of Sugden v. Partridge, supra, instead of supporting his right to the position, is a direct authority in defeat of the application. In the Sugden Case the relator therein was assigned to duty at the pleasure of the commissioner. The assignment was permanent in character, and in no sense did it fall within the definition of a temporary designation, as he might continue therein for a period of years, or during his life, as the pleasure of the commissioner should be exercised. In the case of the relator, his assignment was temporary only for the fixed period of five days, and was so expressed in the order assigning him to duty. At the expiration of the five days, he ceased, by virtue of the character of the assignment, to be authorized to perform duties as a detective ser

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geant, and no act of the commissioner of police was necessary to effect such result. Such was the interpretation placed upon the order by his superior in authority, as continuous orders were issued at the expiration of each five days during the entire period of his assignment to duty; and, when that specified period ended, he was relieved from such position, and again performed duties as a patrolman of the police force. The character of the assignment in the Sugden Case was a controlling feature in the determination. The court said, in speaking upon this subject:

"The resolution adopted by the board of police, as we have seen, designated and assigned the petitioner to detective duty in the detective bureau, with the rank of a detective sergeant. It is not stated in the resolution that the designation was temporary. The police board is required to maintain a bureau of detectives. They are required to select and designate from the patrolmen a sufficient number to make the detective force sufficient. The patrolmen so designated under the statute are vested with the same authority and entitled to receive the same salary as sergeants of police. The designation so made may be continued indefinitely, even during the life of the person designated. True, he may be reduced to the grade of a patrolman at the option of the board, but this reserved power in the board does not operate to deprive the detective sergeant of his status as such officer during the time he is vested with the powers and duties of such office."

The court here makes clear distinction between the case of a temporary appointment and one permanent in character, and the clear inference is that the rule would not apply in the event of a mere temporary designation. In the Sugden Case it was permanent, and therefore the relator became entitled to the position. In the present case it was temporary, and therefore it expired when the temporary period ended. But further, the act did not take effect until January, 1902. The relator's temporary assignment expired on the 8th day of August, 1901. In speaking upon this subject the Court of Appeals said in the Sugden Case, supra:

"If a statute is capable of two constructions, one of which is in harmony with the provisions of the Constitution, and the other not, that should be adopted which will preserve the statute, if such construction is just as consistent with the legislative intent as the other. And in order to give effect to the Legislature's intent, words and phrases may be eliminated or supplied. We are inclined to the view that it was the intention that this provision should apply to those who continued in the position until this act took effect, but, if this were not so, the objectionable provision could be eliminated, leaving all the other provisions of the act in force, as applying to those persons filling the office at the time the act went into effect."

This language construes the statute so as to uphold it, and such construction shows that the relator is outside its provisions. He was not performing the duties of a detective sergeant when the act went into effect, and, as the construction of the act is limited to those persons who were then in office, it is clear that the relator is excluded from its benefit. It is the clear inference that this construction was essential in order to preserve this feature of the act as a constitutional enactment. In no view, therefore, is it made to appear that the relator is entitled to the benefit of the act. This conclusion renders it unnecessary to consider other and serious questions presented by the record, or to pass upon the laches insisted upon.