plaintiff failed to make even prima facie proof of negligence. It was a question for the jury whether one or more of the members of the board of trustees did not know, or in the exercise of a reasonable degree of diligence and care, ought not to have known, of the defective condition of the sidewalk in season to remedy the defect or to prevent the injury by causing proper guards or a light to be a light to be placed at the point of danger. 61 N. Y., 506, and cases cited 509; 45 N. Y., 135.

McDermott v. City of Kingston, 19 Hun, 198, distinguished.

Judgment reversed and new trial ordered, costs to abide event.

Opinion by Smith, P.J.; Barker, Haight and Bradley, JJ., concur.

JUSTICE'S COURT. PLEADING.

N. Y. SUPREME COURT. GENERAL

TERM. FIFTH DEPT.

The First Presbyterian Society of Lewiston, respt., v. Charles B. Ayer, applt.

Decided Jan., 1887.

Certain allegations in a complaint in Justice's court held sufficient to show that an overpayment by mutual mistake was intended to be alleged, and that certain evidence sustained that allegation. A claim for overpayment on purchase of a bond and mortgage is assignable.

Appeal from judgment of County Court affirming a justice's judgment.

The complaint alleged in substance that plaintiff's assignor bought a bond and mortgage of

defendant, on which it was supposed and alleged there was due the sum of $888.37, which sum the assignor paid defendant therefor, whereas the amount then due was in fact some $58 less than so supposed and paid. It was proved that one S., who drew the assignment and witnessed its execution and took the acknowledgment of it, made a mistake in computing the amount due on the securities, and thus made the amount too much by omitting a certain prior payment; and that the amount figured by him, including such excess, was paid to defendant. It is to be inferred that all the parties to the transaction acted in ignorance of the mistake.

Joel L. Walker, for applt.
Ellsworth & Potter, for respt.

Held, That the justice's judgment may properly be sustained upon the ground of an overpayment by mutual mistake. Within the present liberal rules of pleading, the complaint stated enough to "enable a person of common understanding to know" that an overpayment by mutual mistake was intended to be alleged, and the proofs sustained that allegation.

Appellant's suggestion that the excess was paid as a bonus for the transfer of the securities finds no warrant in the proofs, nor is it set out in the answer, which only puts in issue the selling of the securities for the amount stated in the complaint, and is therefore inconsistent with the idea that a bonus was paid, and it impliedly admits the allegation that the sum

paid was the sum "supposed and alleged" to be due. Plaintiff was therefore entitled to recover, on proving that the sum paid was in excess of the amount due.

The claim for overpayment was assignable.

Judgment affirmed.

Opinion by Smith, P.J.; Barker, Haight and Bradley, JJ., concur.

ATTORNEY AND CLIENT.
REFEREE.

N. Y. SUPREME COURT. GENERAL
TERM. FIRST DEPT.

In re application of L. E. Chittenden.

Decided Dec. 31, 1886.

While the fact that the witholding by an attorney of money claimed by his client to belong to him is done in good faith and in reliance upon a just belief that he is entitled to more pay is not an absolute answer to summary proceedings to compel the attorney to pay over the same, it is a circumstance which will be taken in

to account by the court in determining

whether it will entertain such summary

proceedings, or whether it will require the claimant to assert his rights under the common law in a trial by jury. If, however, upon the return of an order to show cause, granted upon the petition of the client, why the attorney should not be ordered to pay over the money so retained by him, a reference of the matter is consented to, the attorney thereby waives his right to ask that he be proceeded against by common law action and not by summary process. Under an order of reference to take proof of certain specified matters it is not error for the referee to report the testimony taken by him together with his opinion thereon.

Petitioner employed one H., an attorney at law, to procure for him

At

a reduction or cancellation of a certain assessment levied upon real property owned by the petitioner in the city of N. Y., under a contract whereby H. was to receive twenty-five per cent. of the amount by which he procured the reduction of said assessment. the time of the employment of H. the assessment was unpaid, and H. instituted proceedings to vacate it, and, during their pendency, the petitioner paid said assessment without the knowledge of H. It was claimed by H. that, upon hearing of the said payment, he entered into a second contract with petitioner whereby he undertook to recover back from the city the money so paid for fifty per cent. of the amount so recovered. The proceedings taken to vacate the assessment finally terminated in an order vacating it, and thereupon H., instituted an action against the city to recover back the assessment paid by petitioner. The city failed to defend this action, and judgment therein was entered in favor of petitioner, and the amount thereof paid to H., as his attorney. H. paid over to petitioner fifty per cent. of the amount so received by him and retained the remainder for his fees. Petitioner denied that he had ever agreed to allow H. more than twenty-five per cent. of the recovery and demanded payment to him of the excess over that amount retained by H., and upon the refusal of the latter to make such payment instituted summary proceedings to compel him to do so. Upon the return of the order to show

cause why H. should not be compelled to make such payment, all parties consented to a reference of the matter to take proof of the contracts and agreements, etc., between petitioner and H., and thereupon an order to that effect was entered. The referee so ap. pointed reported the testimony taken by him, and also his opinion to the effect that H. should pay over to petitioner the amount claimed by the latter, less $50 which he allowed H. as reasonable compensation for obtaining the judgment against the city made necessary by the act of petitioner in paying the assessment and from the order directing such payment this appeal was taken. It was claimed by appellant that the proceedings should not have been maintained, but that petitioner should have been compelled to bring a regular action for the recovery of the sum claimed by him. It was also argued in behalf of appellant that the referee had exceeded his authority in rendering an opinion upon the evidence taken by him, and that the court had been unduly influenced thereby as shown by the memorandum made by it at the time of entering the order appealed from, in which it was stated that the court did not feel justified in disturbing the conclusion of the referee upon a disputed question of fact.

P. A. Hargous, applt. in person. Chittenden, Townsend & Chittenden, for respt.

Held, That petitioner had the right to ask the court summarily to restore to him his moneys in

the hands of his attorneys admitted of no doubt. That it has been the uniform practice of courts in this State to compel, by proper order, a quick and inexpensive settlement of controversies of this description between client and attorney. That the fact that the withholding of the moneys by the attorney was done in good faith and in reliance upon a just belief that he was entitled to more pay was not an absolute answer to the order to show cause; but that it was a circumstance which would be taken into account by the court in determining whether it would entertain a summary application, or whether it would require the claimant to assert his rights under the common law jurisdiction in a trial by jury. 52 N. Y., 493; 85 id., 284. But that the appellant, by consenting to the reference, lost his right, if any, to ask that he be proceeded against by common law process and not under the summary provisions of the statute and the rules and practice of the court in controversies between attorney and client.

That, while the order of ref erence did not require the referee to give his opinion upon the testimony that should be taken, it by no means precluded him from furnishing that aid to the court; and if a referee, diligently considering a case, sees fit thus to render this aid in the decision of a question of fact, the court is ever ready to receive such help and cannot deem it the foundation of an error in the proceedings.

That the memorandum of the

opinion handed down does not contain the decision of the court, but such decision is contained in the order, and if the order is sustained by the testimony, as it clearly was in this case, it matters not whether or not the judge who made the order gave undue weight to the examination of the case which was made by the referee.

Order affirmed.

Opinion by Macomber, J. Daniels, J., concurs; Brady, J., dissents upon the ground that the petitioner should have been left to his action.

MECHANIC'S LIEN. COSTS. N. Y. SUPREME COURT. GENERAL

TERM. FOURTH DEPT.

Andrew J. Fargo et al., applts., v. Louise A. Helmer, impl'd, respt.

Decided Jan., 1887.

Costs cannot be taxed by plaintiff in an action to foreclose a mechanic's lien unless awarded by the trial court. The saving clause in §25 of Chap. 342, Laws of 1987, does not apply to a right

to costs under former statutes.

Appeal from order of Special Term, setting aside a taxation of costs in favor of plaintiffs.

Plaintiffs commenced this action to foreclose a mechanic's lien against respondent's premises April 14, 1885. Answer was served May 9, 1885; the trial took place in Feb., 1886, and a decision was rendered June 12, 1886, which was silent as to costs. Plaintiffs taxed costs as in an ordinary action, and entered judgment there

for, which was set aside by Special Term, which held that as costs were not awarded to plaintiffs by the trial court they could not tax and have costs.

Edwin S. Butterfield, for applts. Knapp, Nottingham & Andrews, for respt.

Held, No error. The "Onondaga Act" and the "City Act" referred to in our opinion in Ryan v. Klock, 36 Hun, 104, were repealed by $25 of Chap. 342, Laws of 1885, the general lien law, and the repealing section contains a saving clause which must be examined and construed in determining the question brought to us by the present appeal. The clause reads, viz.: "But this act shall not be so construed as to affect, enlarge, invalidate or defeat any lien or right to a lien now existing, or any proceeding to enforce such lien now pending by virtue of any of the provisions of the acts hereby repealed, nor to revive any other or former acts or parts of acts repealed by the acts hereby repealed." By $14 of the act of 1885, it is provided, "costs and disbursements * shall rest in

*

the discretion of the court."

Appellants contend that the saving clause found in the repealing act should be so construed as to allow costs to be recovered by plaintiffs without any award thereof as a matter of discretion by the trial court. While, on the other hand, respondent contends that the rule laid down in the act of 1885 was the only one in force at the time of the decision, and that because the court did not award costs to plain