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and 132 New York State Reporter

farm colony. If you intend to take up the question which you will absolutely be obliged to take up, because that is the problem of the day, keeping these people there and letting them work until you are sure you have a recovery-if you intend to do all that, yes. If you do not intend to do that, no." The only patients admissible to this institution under the charter are consumptive women and children, male children only under 12 years of age. At the most the jury should say whether this forest land which must first be cleared was held in good faith for farms for these women and children. Whether all of this land were in good faith contemplated to be used for hospital purposes is in our judgment a question of fact, and not a question of law, and this fact can only be resolved as against these assessors by the verdict of a jury.

The assessment was not made upon the tract as a whole, but upon, the nine lots separately. All but $1,510 of the aggregate assessment of $26,540 was upon lot 298 on which the main and several of the smaller buildings, besides the waterworks, are situated. While a comparatively small part of the area of the entire tract only was included in this lot, the greater part of the assessable value and of the assessment was there. There is no conflict in the evidence that this lot upon which plaintiff had been assessed for $25,000 was used exclusively for hospital purposes. It was therefore exempt as a matter of law, and the defendants were without jurisdiction to assess it. This is true also as to several of the other nearby lots; the proof being undisputed that they were occupied or used in one way or another solely for the plaintiff's purposes at the time of the assessment. The defendants therefore had no right to assess such lots and were trespassers in so doing. There was a question of fact to submit to the jury, however, as to whether the plaintiff in good faith contemplated using the four or five outlying lots assessed at a valuation of from $150 to $220 each for hospital purposes, and a new trial must be granted to the end that the defendants' liability for the assessment of those lots may be determined.

It follows that the judgment and order should be reversed and a new trial granted, with costs to appellants to abide event. All concur, except PARKER, P. J., not voting and COCHRANE, J., dissenting.

(112 App. Div. 736)

FITCH v. HAY et al.

(Supreme Court, Appellate Division, Third Department. May 2, 1906.) 1. APPEAL-RIGHT TO APPEAL-INTEREST IN LITIGATION-COsts.

In an action to enjoin a board of county supervisors from paying a claim, the board has no interest in the matter entitling it to appeal on the merits, but where judgment for costs is rendered against it, it is entitled to appeal on the question of costs.

2. COSTS-SEPARATE ISSUES.

Where, in an action to restrain a board of county supervisors from paying a claim, plaintiff alleged that defendants acted fraudulently, and in collusion with the claimants, and the court found that the allowance of the claims was illegal, but that here was no fraud or collusion, defendant board should not have been charged with costs.

3. COSTS-MODIFICATION OF JUDGMENT ON APPEAL.

Plaintiff, in an action to enjoin county supervisors from paying certain claims, charged that the board acted fraudulently. The court found that there was no collusion but that the claims were illegally allowed, and rendered judgment enjoining their payment, but improperly taxed costs against the board. The board appealed from the whole judgment. Plaintiff in the action was a supervisor of a town, and had warned the board of the illegality of some of the claims allowed. Held that, on modification of the judgment by striking out the erroneous provision as to costs, neither party was entitled to the costs of the appeal.

Appeal from Trial Term, Clinton County.

Action by Wilmer H. Fitch against Wellington Hay and others. From a judgment for plaintiff, defendants appeal. Modified and affirmed.

These defendants with James H. O'Neil, Owen O'Neil, Nelson Duval, Harvey S. Haff, George Gray, and the board of supervisors of the county of Clinton were made defendants in an action by the plaintiff to restrain the payment of certain claims audited by the appellants against the town of Mooers in the said county of Clinton. James H. O'Neil, Owen W. O'Neil, Nelson Duval, Harvey S. Haff, and George Gray were the claimants whose bills were audited; the audit of which is made the basis of this action. George Gray was overseer of the poor of said town. J. H. and Owen W. O'Neil were physicians who claimed compensation for services. Nelson Duval was the town clerk. Harvey S. Haff was an attorney who claimed compensation for services. The action was brought under chapter 301, p. 620, of the laws of 1892, to enjoin the payment of said claims upon the ground of their illegality. In the complaint it was charged that the appellants the town board colluded with the several claimants to secure to them payment of their claims which were illegal. Issue was joined by the service of answers by the appellants as the town board, by Gray the superintendent of the poor and by J. H. and Owen W. O'Neil. Upon the trial part of the claims so audited were held to have been lawfully audited, and part were held to have been illegally audited and their payment was enjoined. The defendant appellants and George Gray were charged with costs of the action amounting to upwards of $250. From the judgment thus entered the town board alone has appealed.

Argued before PARKER, P. J., and SMITH, CHESTER, KELLOGG, and COCHRANE, JJ.

D. H. Agnew, for appellants.

W. H. Dunn, for respondent.

SMITH, J. In People ex rel. Steward v. Railroad Commissioners, 160 N. Y. 212, 54 N. E. 697, Chief Judge Parker, writing for the Court of Appeals, says:

"It is the general rule that a court or board exercising Judicial functions by permission of some statute, has no interest in maintaining its determination, and, therefore, can neither appeal from an order of the court reversing the proceedings, nor be heard on the appeal.”

Within this rule of practice it is difficult to see what interest these appellants have in reversing this judgment upon the merits. They are not affected whether the judgment stands or falls. The parties aggrieved by the judgment are the claimants whose bills have been found illegal and and their payment enjoined.

By the judgment, however, these appellants are charged with upwards of $250 of costs. To review the equity of that charge they have a standing in court upon this appeal.

If this question could have been raised by a writ of certiorari, issued

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at the instance of the plaintiff, under the authority cited these appellants would not be interested in contesting the issues upon that writ. If the charge had been made that the audits were illegal, simply, the appellants could well have been charged with costs for making a contest at the trial term. They were charged, however, by plaintiff's complaint as having acted fraudulently and in collusion with these claimants. After having made this charge in his complaint, it does not lie with the plaintiff to say that the defendants improperly took issue with the charge made. On this issue, the only one in which they were in fact interested in any way in the trial court, these appellants succeeded. The referee has found that their acts were all in good faith, and without fraud. Under these circumstances, we are of opinion that they should not have been charged with the costs of this action. The judgment should therefore be modified by striking out the provision charging them the costs of the action, and, as so modified, affirmed. We are of opinion that neither party should have costs of this appeal. This plaintiff acted not for himself so much as in behalf of the people whose representative he was. He was the supervisor of the town. He warned the town board of the illegality of some, at least, of these claims, and had substantial ground for his action. The appeal of the town board was from the whole judgment, so that upon this appeal he is required to defend the judgment in each and every particular. The modification of the judgment, therefore, indicates only partial success for the appellants, which as we have stated, should not, in our judgment, carry costs of the appeal.

This affirmance of the judgment, as modified, should be without costs to either party.

Judgment modified by striking therefrom the provision charging defendants with costs, and, as thus modified, affirmed, without costs to either party. All concur, except PARKER, P. J., not voting.

(112 App. Div. 742)

WICKHAM et al. v. ROBERTS et al.

(Supreme Court, Appellate Division, Third Department. May 2, 1906.) 1. ASSIGNMENTS-PROPERTY ASSIGNABLE-RIGHTS OF ACTION.

Under Code Civ. Proc. § 1910, providing that any claim or demand may be transferred, and 2 Rev. St. (1st Ed.) p. 447, pt. 3, c. 8, tit. 3, § 1, providing that, for wrongs done to the property rights or interests of another for which an action might be maintained against the wrongdoer, the same may be brought after the death of the person injured by his executor or administrator, a right of action for false representations, made by defendant on a sale of property to decedent, was assignable by decedent's administrator.

2. FRAUD-FALSE REPRESENTATIONS.

Where a seller of bonds represented to the purchaser that they were good, and also that they were a first lien upon the corporate property, and the last representation was false, as the seller knew, the purchaser might maintain an action for damages, though the bonds were considered good at the time of the sale.

[Ed. Note. For cases in point, see vol. 23, Cent. Dig. Fraud, §§ 3-5.] Appeal from Special Term, Delaware County.

Action by Sarah Stewart Wickham and others against John M. Roberts and others. From an order setting aside a direction dismissing

the plaintiffs' complaint and granting a new trial, defendants appeal. Affirmed.

Argued before PARKER, P. J., and SMITH, CHESTER, KELLOGG, and COCHRANE, JJ.

Julien Scott, for appellants.

James R. Baumes, for respondents.

SMITH, J. These plaintiffs are two of the next of kin of Samuel Stewart, deceased. They derive their right to bring this action through assignment from the administrator of the estate of Samuel Stewart. In April, 1895, Samuel Stewart purchased of the defendant four bonds of the Bainbridge Waterworks Company. They were represented by defendant Roberts to be a first lien upon the waterworks and a good investment, and that the interest would be paid and the bonds, when due, would either be paid or refunded. It turned out, however, that there was another mortgage lien for about the sum of $10,000, prio to the lien of the mortgage which secured these bonds. After the death of Samuel Stewart, this other mortgage lien was foreclosed, and upon the sale of the property there was nothing left to apply upon the bonds held by the estate of Samuel Stewart. The adininistrator, in distribution of the estate, assigned this claim to these plaintiffs, who have brought this action to recover damages for the false representations of the defendant, which they claim induced the purchase of the bonds. At the trial upon the close of the plaintiffs' evidence the complaint was dismissed. From the opinion of the trial judge. upon granting the order appealed from, the complaint was apparently dismissed, upon the ground that there was no proof that Samuel Stewart relied upon the representations of Roberts in making the purchase. Thereafter, upon a motion for a new trial, the trial judge set aside the order dismissing the complaint, and held that there was enough in the case to present to the jury upon the question whether Samuel Stewart did in fact rely upon the representations of the defendant in purchasing the bonds.

The opinion of the learned trial judge convinces us that, upon the question as to whether Samuel Stewart relied upon these representations, the plaintiffs had the right to the verdict of the jury. There are one or two other questions raised by the appellant, however, which are not discussed in that opinion, to which it may be well to refer. In 2 Rev. St. (1st Ed.) p. 447, pt. 3, c. 8, tit. 3, § 1, it is provided, "For wrongs done to the property, rights or interests of another, for which an action might be maintained against the wrongdoer, such action may be brought by the person injured, or after his death, by his executors of administrators, against such wrongdoer, and after his death against his executors and administrators, in the same manner and with the like effect in all respects, as actions founded upon contracts."

The defendant contends that, while by this section a right of action was given to the executor or administrator, it was given to him alone and not to his assignee. He claims that in principle it is analogous to a right of action given to an executor or administrator for negligence causing the death of a party, in which class of cases he claims that it has been held that that action belongs to the administrator alone. See Mundt v. Glokner, 24 App. Div. 110, 48 N. Y. Supp. 940. The

and 132 New York State Reporter

cases, however, are not analogous. The right of action for negligence causing death is one given for the benefit of the next of kin, alone, and not for the estate, and the executor or administrator is made by the statute the special trustee of that cause of action. The cause of action here sued upon belongs to the estate, and would seem to me to be assignable within section 1910 of the Code of Civil Procedure. It is further contended that no cause of action lies against the defendant, because it appears in the evidence that at the time of the sale of the bonds they were considered as perfectly good. That the bonds were good, however, was not the only representation made. An additional representation was made to the effect that they were the first lien upon the waterworks. This representation was false, and known to be false by the defendant when he made it, and for a credit extended upon the faith thereof the defendant would clearly be liable in damages.

The order should therefore be affirmed, with costs. All concur.

(112 App. Div. 872)

CROWLEY v. STATE.

(Supreme Court, Appellate Division, Third Department. May 2, 1906.) APPEAL-MODIFICATION--INCREASE OF RECOVERY.

Where, on appeal from a judgment against the state in the court of claims, no finding by that court appears as to the extent of the damage to claimant owing to defendant's negligence, the Supreme Court has no authority to make a new finding, and in accordance therewith, to modify the judgment by increasing the recovery.

[Ed. Note. For cases in point, see vol. 3, Cent. Dig. Appeal and Error, § 4506.]

Appeal from Special Term.

Appeal by Patrick Crowley from a judgment in his favor againsɩ the state in the court of claims granting insufficient relief. Reversed. See 90 N. Y. Supp. 496.

Argued before PARKER, P. J., and SMITH, CHESTER, KELLOGG, and COCHRANE, JJ.

Brodie G. Higley, for appellant.

Julius M. Mayer, Atty. Gen. (Willis H. Tennant, of counsel), for the State.

SMITH, J. This appeal is taken on the ground of the insufficiency of the damages. Claimant's land was injured by an overflow from the canal caused by the negligence of the employés of the state. These facts are established for the purposes of this action by the judgment against the defendant for the sum of $300. Claimant rented 16 acres of land adjoining the Champlain canal. One acre was kept as grass land, upon one acre he planted corn, and upon 14 acres he planted a special variety of potatoes which was used for seed potatoes in Cuba, and for which he got 832 cents per bushel that year. The ordinary crop of potatoes in that land was 150 bushels to the acre. This overflow occurred July 24, 1902. After the overflow the ground yielded only 70 bushels of potatoes to the acre, and practically no

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