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plaintiff failed to make even prima defendant, on which it was supfacie proof of negligence. It was

It was posed and alleged there was due a question for the jury whether the sum of $888.37, which sum the one or more of the members of the assignor paid defendant therefor, board of trustees did not know, or whereas the amount then due was in the exercise of a reasonable de- in fact some $58 less than so supgree of diligence and care, ought posed and paid. It was proved not to have known, of the defec- that one S., who drew the assigntive condition of the sidewalk in ment and witnessed its execution season to remedy the defect or to and took the acknowledgment of prevent the injury by causing it, made a mistake in computing proper guards or a light to be the amount due on the securities, placed at the point of danger. 61 and thus made the amount too N. Y., 506, and cases cited 509 ; 45 much by omitting a certain prior N. Y., 135.

payment; and that the amount McDermott v. City of Kingston, figured by him, including such ex19 Hun, 198, distinguished. cess, was paid to defendant. It is

Judgment reversed and new to be inferred that all the parties trial ordered, costs to abide event. to the transaction acted in ignor

Opinion by Smith, P.J.; Barker, , ance of the mistake.
Haight and Bradley, JJ., concur. Joel L. Walker, for applt.

Ellsworth & Potter, for respt.

Held, That the justice's judg

ment may properly be sustained JUSTICE'S COURT. PLEAD

upon the ground of an overpayING.

ment by mutual mistake. Within N. Y. SUPREME COURT. GENERAL

GENERAL the present liberal rules of pleadTERM. FIFTH DEPT.

ing, the complaint stated enough The First Presbyterian Society

to "enable a person of common of Lewiston, respt., v. Charles B.

understanding to know” that an Ayer, applt.

overpayment by mutual mistake

was intended to be alleged, and Decided Jan., 1887.

the proofs sustained that allegaCertain allegations in a complaint in Jus- tion. tice's court held sufficient to show that

Appellant's suggestion that the an overpayment by mutual mistake was intended to be alleged, and that certain

excess was paid as a bonus for the evidence sustained that allegation.

transfer of the securities finds no A claim for overpayment on purchase of a warrant in the proofs, nor is it set bond and mortgage is assignable.

out in the answer, which only Appeal from judgment of County puts in issue the selling of the Court affirming a justice's judg. securities for the amount stated in ment.

the complaint, and is therefore The complaint alleged in sub- inconsistent with the idea that a stance that plaintiff's assignor bonus was paid, and it impliedly bought a bond and mortgage of admits the allegation that the sum

paid was the sum “supposed and a reduction or cancellation of a alleged” to be due. Plaintiff was certain assessment levied upon therefore entitled to recover, on real property owned by the petiproving that the sum paid was in tioner in the city of N. Y., under excess of the amount due.

a contract whereby H. was to reThe claim for overpayment was ceive twenty-five per cent. of the assignable.

amount by which he procured the Judgment affirmed.

reduction of said assessment. At Opinion by Smith, P.J.; Barker, the time of the employment of H. Haight and Bradley, JJ., concur. the assessment was unpaid, and

H. instituted proceedings to vacate it, and, during their pendency,

the petitioner paid said assessment ATTORNEY AND CLIENT.

without the knowledge of H. It REFEREE.

was claimed by H. that, upon N. Y. SUPREME COURT. GENERAL hearing of the said payment, he TERM. FIRST DEPT.

entered into a second contract In re application of L. E. Chit- with petitioner whereby he underterden.

took to recover back from the city Decided Dec. 31, 1886.

the money so paid for fifty per

cent. of the amount so recovered. While the fact that the witholding by an The proceedings taken to vacate

attorney of money claimed by his client to belong to bim is done in good faith

the assessment finally terminated and in reliance upon a just belief that he

in an order vacating it, and thereis entitled to more pay is not an absolute

upon H., instituted

an action answer to summary proceedings to com- against the city to recover back the pel the attorney to pay over the same, it is a circumstance which will be taken in.

assessment paid by petitioner. The to account by the court in determining

city failed to defend this action, whether it will entertain such summary and judgment therein was entered proceedings, or whether it will require in favor of petitioner, and the the claimant to assert his rights under

amount thereof paid to H., as his the common law in a trial by jury. If, however, upon the return of an order to

attorney. H. paid over to petishow cause, granted upon the petition of tioner fifty per cent. of the amount the client, why the attorney should not so received by him and retained be ordered to pay over the money so re

the remainder for his fees. Petitained by him, a reference of the matter is consented to, the attorney thereby

tioner denied that he had ever waives his right to ask that he be pro- agreed to allow H. more than ceeded against by common law action twenty-five per cent. of the recovand not by summary process.

ery and demanded payment to him Under an order of reference to take proof of certain specified matters it is not error

of the excess over that amount refor the referee to report the testimony tained by H., and upon the refusal taken by him together with his opinion of the latter to make such pay. thereon.

ment instituted summary proceedPetitioner employed one H., an ings to compel him to do so. Upattorney at law, to procure for him on the return of the order to show cause why H. should not be coni- the hands of his attorneys adpelled to make such payment, all mitted of no doubt. That it has parties consented to a reference of been the uniform practice of courts the matter to take proof of the in this State to compel, by proper contracts and agreements, etc., be order, a quick and inexpensive tween petitioner and H., and settlement of controversies of this thereupon an order to that effect description between client and was entered. The referee so ap. attorney. That the fact that the pointed reported the testimony withholding of the moneys by the taken by him, and also his opinion attorney was dor

attorney was done in good faith to the effect that H. should pay and in reliance upon a just belief over to petitioner the amount that he was entitled to more pay claimed by the latter, less $50 was not an absolute answer to the which he allowed H. as reasonable order to show cause; but that it compensation for obtaining the was a circumstance which would judgment against the city made be taken into account by the court necessary by the act of petitioner in determining whether it would in paying the assessment and entertain a summary application, from the order directing such pay or whether it would require the ment this appeal was taken. It claimant to assert his rights under was claimed by appellant that the the common law jurisdiction in a proceedings should not have been trial by jury. 52 N. Y., 493; 85 id., maintained, but that petitioner 284. But that the appellant, by should have been compelled to consenting to the reference, lost bring a regular action for the re- his right, if any, to ask that he be covery of the sum claimed by him. proceeded against by common law It was also argued in behalf of process and not under the sumappellant that the referee had ex- mary provisions of the statute and ceeded his authority in rendering the rules and practice of the court an opinion upon the evidence in controversies between attorney taken by him, and that the court and client. had been unduly influenced there- That, while the order of refby as shown by the memorandum erence did not require the referee made by it at the time of entering to give his opinion upon the testithe order appealed from, in which mony that should be taken, it by it was stated that the court did no means precluded him from not feel justified in disturbing the furnishing that aid to the court; conclusion of the referee upon a and if a referee, diligently condisputed question of fact.

sidering a case, sees fit thus to renP. A. Hargous, applt. in person.

der this aid in the decision of a Chittenden, Townsend & Chit- question of fact, the court is ever tenden, for respt.

ready to receive such help and canHeld, That petitioner had the not deem it the foundation of an right to ask the court summarily error in the proceedings. to restore to him his moneys in That the memorandum of the

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opinion handed down does not for, which was set aside by Specontain the decision of the court, cial Term, which held that as but such decision is contained in costs were not awarded to plainthe order, and if the order is sus- tiffs by the trial court they could tained by the testimony, as it not tax and have costs. clearly was in this case, it matters Edwin S. Butterfield, for applts. not whether or not the judge who Knapp, Nottingham & Anmade the order gave undue weight drews, for respt. to the examination of the case Held, No error. The “Ononwhich was made by the referee. daga Act" and the “City Act "reOrder affirmed.

ferred to in our opinion in Ryan Opinion by Macomber, J.; v. Klock, 36 Hun, 104, were reDaniels, J., concurs; Brady, J., pealed by $25 of Chap. 342, Laws dissents upon the ground that the of 1885, the general lien law, and petitioner should have been left to the repealing section contains a his action.

saving clause which must be ex. amined and construed in determin

ing the question brought to us by MECHANIC'S LIEN. COSTS.

the present appeal. The clause N. Y. SUPREME COURT. GENERAL reads, viz.:

reads, viz.: “But this act shall TERM. FOURTH DEPT.

not be so construed as to affect,

enlarge, invalidate or defeat any Andrew J. Fargo et al., applts., lien or right to a lien now existv. Louise A. Helmer, impl’d, ing, or any proceeding to enforce respt.

such lien now pending by virtue Decided Jan., 1887.

of any of the provisions of the acts

hereby repealed, nor to revive any Costs cannot be taxed by plaintiff in an

other or former acts or parts of action to foreclose a mechanic's lien unless awarded by the trial court.

acts repealed by the acts hereby The saving clause in $ 25 of Chap. 342, repealed.” By $14 of the act of

Laws of 1981, does not apply to a right 1885, it is provided, “costs and to costs under former statutes.

disbursements

shall rest in Appeal from order of Special the discretion of the court.” Term, setting aside a taxation of Appellants contend that the sav. costs in favor of plaintiffs.

ing clause found in the repealing act Plaintiffs commenced this ac- should be so construed as to allow tion to foreclose a mechanic's lien costs to be recovered by plaintiffs against respondent's premises without any award thereof as a April 14, 1885. . Answer

was matter of discretion by the trial served May 9, 1885; the trial took court. While, on the other hand, place in Feb., 1886, and a decision respondent contends that the rule was rendered June 12, 1886, which | laid down in the act of 1885 was the was silent as to costs. Plaintiffs only one in force at the time of taxed costs as in an ordinary ac

the decision, and that because the tion, and entered judgment there- court did not award costs to plain

*

tiffs they are not entitled to re- then pending or thereafter brought cover them.

within the discretion of the trial Supervisors v. Briggs, 3 Den., court. 18 How., 385. 173, is an authority for holding Dean v. Gridley, 11 Wend., 169, “the right to costs is created by distinguished. statute, and wholly depends upon The question is novel, and the it, and the right does not become order may, therefore, be affirmed fixed until the termination of the properly without costs to either suit.” See also 27 Hun, 112; 25 party. W. Dig., 187.

Order affirmed, without costs. We are asked to hold that the Opinion by Hardin, P.J.; Boardsaving clause in the repealing act man and Follett, JJ., concur. leaves in force the former statutes as far as they relate to costs; the words declaring that the repealing

PRACTICE. DEFAULTS. act shall “not be so construed as to affect, enlarge, invalidate or de- N. Y. SUPREME COURT. GENERAL feat” any proceeding to enforce

TERM. FIFTH DEPT. such lien now pending by virtue

William Keeler, respt., v. Maria of any of the provisions of the acts Dennis, applt. are relied on.

But we

Decided Jan., 1887. think they do not aid appellants. The proceeding” to enforce any The decision of Special Term based upon · such lien "now pending" referred

conflicting affidavits on motion to open

a default is conclusive. to in the statute is quite obviously

An order made at Circuit refusing plaintiff's the prescribed mode of action for

application to postpone the trial does not carrying into effeet a legal right. stand in the way of a motion to open a 1 Duer, 617. If the trial court default taken subsequently at the same

Circuit. had exercised its discretion and awarded costs to plaintiffs it would Appeal from Special Term order not thereby have affected, en- opening a default taken at Circuit larged, invalidated or defeated any and setting aside the verdict there

proceeding” pending by virtue of rendered and the judgment entered any of the provisions of the acts thereon. repealed. 4 Wend., 211. The ob- A. P. Smith, for applt. ject of the saving clause was to H. V. Howland, for respt. preserve “any lien or right to a Held, The affidavits used for lien” and any pending proceed- and against the motion to open ings. The lien has been saved; the default presented a conflict in the proceedings to enforce such some respects which the Special lien” have been preserved. It Term was called on to decide, and was competent for the legislature as the decision cannot be said to to repeal all provisions heretofore be clearly against the weight of existing as to costs; to place the evidence it is conclusive. Assumcosts to be given in all proceedings ing as we must, therefore, that the

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