selves aggrieved, to obtain a further hearing. This is important in the interest of justice, and also upon grounds of public policy, because the discontent which taxation excites is mitigated by a belief that if unjust to sev. eral individuals the remedy of each is less burdensome if all unite to obtain it. If the petitioners were united in interest, such a stat utory provision would not be necessary. It is necessary because they are not united in interest, but "are assessed upon the same roll," and "affected in the same manner by the alleged illegality, error, or inequality." It is possible, by a strict construction, to hold that each of the 21 petitioners, other than the Washington Building Company, should allege in the joint petition that each is affected in the same manner as that company is by the inequalities and the extent thereof specified by that company between its property and the other properties as to which that company institutes a comparison in the petition. But it is obvious that this strict construction would practically nullify the statute, since it is improbable that the property of every petitioner, other than the Washington Building Company, is affected to the same extent by the undervaluation of the same property-no more, no less, and by no other-as is that company.

If we construe section 250 literally, with a view to promote its remedial intent instead of defeating it, we find that it first provides that "any person assessed upon any assessment roll claiming to be aggrieved" may present his petition, and then the section provides what the petition shall set forth as to his alleged individual grievance. Then it provides that "two or more persons assessed upon the same roll, who are affected in the same manner by the alleged illegality, error or inequality, may unite in the same petition." That is, as one person may set forth his individual grievance, so two or more persons, instead of making separate petitions, may unite with him in the same petition, and each set forth his individual grievance, provided he is affected in respect of his grievance in the same manner "by the alleged illegality, error or inequality." The section does not say as "alleged" by the one or "any person," mentioned in its opening words, and, as it extends its remedy to "two or more persons," it is reasonable to construe it as meaning that each one of the "two or more persons" mentioned in the final clause of the section has the same right of individual statement in the petition as the one person mentioned in its opening clause, provided the illegality, error, or inequality he complains of affects him in the same manner as the like (not the same) inequality, error, or illegality affects every other petitioner. The petition is framed in pursuance of the provisions of the section thus construed. As said in People v. Carter, 109 N. Y. 576, 17 N. E. 222, and repeated in Re Corwin, 135 N. Y. 245, 32 N. E. 16, it shows "a state of facts from which a presumption justly arises 57 N.E.-40

that the inequality of which he complains will subject him to the payment of more than his just proportion of the aggregate tax." Neither the order for the writ nor the writ itself is attacked in the motion. The writ was issued within four months after the determination of the assessors became binding. This seems to be the practice in the First department. People v. Barker, 22 App. Div. 161, 47 N. Y. Supp. 1020. Section 251 of the tax law provides that "such petition must be presented to a justice of the supreme court or at a special term of the supreme court in the judicial district in which the assessment complained of was made, within fifteen days after the completion and filing of the assessment roll and the first posting or publication of the notice thereof as required by this chapter." The filing therein mentioned, as was said in the Bronx Case, 22 App. Div. 161, 47 N. Y. Supp. 1020, is evidently that required by section 38 of the tax law, which provides that an assessment roll, when completed and verified, shall be filed on or before September 1st in the office of the town or city clerk, there to remain 15 days for inspection. The court then said: "That provision may apply to 59 of the 60 counties of the state, but cannot have the remotest application to the city of New York. What was necessary,

in order to enable the petitioner to procure the writ in this case, was a fixed and unchangeable assessment. Filing of the assessment roll was not necessary." And the court held that the time within which to apply for the writ must be the four months given by Code, § 2125.

The petition states that "the said assessments became fixed and unchangeable on the 1st day of June, 1899, and have since been confirmed by the municipal council," but is silent as to the filing of the roll and the first posting or publication of the notice thereof. The respondents have made no return to the writ, and hence the allegations of the petition are not controverted. The notice of motion to supersede the writ did not state as one of the grounds of the motion that the petition was presented too late, but that it "is not in accordance with the procédure provided by article 11 of chapter 908 of the Laws of 1896." That may be true, and not be fatal.

The charter is silent as to the time. The provisions of the tax law fixing the limit at 15 days make the time commence with a filing of the assessment roll, which, if ever applicable to the city of New York, is not applicable under the provisions of the charter. Sections 907-911. Then, if section 2125 of the Code is inapplicable, there is no time limit. In re Corwin, supra. If that section does apply, this writ is within the limit it prescribes. Much has been said by this and other courts to the effect that the writ of certiorari to review assessments for taxation is governed by the statute apart from the Code. But we do not need to look to section 2125 to sustain this writ. There are some

other objections suggested by the respondents in opposition to the allowance of the writ, but they do not strike us as requiring discussion. The order should be reversed, with costs, and the motion to supersede denied, with costs.

BARTLETT, HAIGHT, and VANN, JJ., concur with PARKER, C. J., for affirmance. O'BRIEN and MARTIN, JJ., concur with LANDON, J., for reversal.

Order affirmed, with costs.

(163 N. Y. 417)

ASSOCIATE ALUMNI OF THE GENERAL THEOLOGICAL SEMINARY OF THE PROTESTANT EPISCOPAL CHURCH IN THE UNITED STATES OF AMERICA v. GENERAL THEOLOGICAL SEMINARY OF THE PROTESTANT EPISCOPAL

CHURCH IN THE UNITED STATES. (Court of Appeals of New York. June 12, 1900.)

VOLUNTARY ASSOCIATION - CHARITABLE TRUSTS-SPECIFIC PERFORMANCE.

1. The alumni association of defendant seminary donated to it a sum of money to be used for the endowment of a professorship; the donation being on certain conditions. Subsequently the voluntary association became incorporated as the present plaintiff. Held, that plaintiff is the successor in rights and interests of the voluntary association, and as such can maintain an action for the enforcement of the trust created by the donation.

2. The inability to grant an injunction in submitted controversies, imposed by Code Civ. Proc. § 1281, does not affect the right to grant specific performance.

3. Where a trustee of a charitable trust misemploys the fund, the decree in an action against him should direct the specific performance of the trust, and not the return of the fund to the donor.

Appeal from supreme court, appellate division, First department.

Action by the Associate Alumni of the General Theological Seminary of the Protestant Episcopal Church in the United States of America against the General Theological Seminary of the Protestant Episcopal Church in the United States for violation of the terms of a trust. From a judgment in favor of plaintiff on case submitted (49 N. Y. Supp. 745), defendant appeals. Modified and affirmed.

William G. Choate and William H. Harris, for appellant. William Rand, Jr., and Alexander T. Mason, for respondent.

CULLEN, J. This controversy relates to the rights of the parties under the donation of a fund of some $25,000 (collected by the alumni of the defendant's seminary) to the defendant for the endowment in that seminary of a professorship, to be designated as the "Alumni Professorship of Evidences of Revealed Religion." This fund was transferred to the defendant by the alumni (at the time a voluntary association) on May 10, 1883, on certain specified conditions, which

related to the character of the professorship, and the duration of the official term of the incumbent, and reserved to the alumni the right of nomination on the occurrance of any vacancy in the chair. Disputes subsequently arose between the defendant and its alumni; the former wishing to change the term of the professor, and claiming to hold the fund as its own property, subject to application for the benefit of the institution in such way as the defendant's trustees might determine, while the alumni claimed that the defendant held the fund solely as trustee for the purposes and upon the conditions prescribed by the alumni when the fund was transferred. Conferences and negotiations were had between the parties, but no definite result or modification of the original conditions was reached, and meanwhile the professorial chair has been left vacant; the defendant either rejecting or failing to act upon the nominations of the alumni. Subsequently the voluntary association of the alumni became incorporated as the present plaintiff, and brought an action against the defendant to enforce the trust, in which suit issue was joined by the answer interposed by the defendant. Thereafter the parties agreed upon a statement of facts, and submitted the controversy to the appellate division, under section 1279, Code Civ. Proc.

We entirely agree in the determination of the learned appellate division on the rights of the respective parties, and shall attempt to add nothing to the discussion on that subject found in the opinion below. We hold with that court that the plaintiff is the successor in rights and interest of the voluntary association which gave the fund to the defendant; that, as between the plaintiff and the defendant, the title of the fund prior to its transfer to the defendant was in the association, and the association was the donor of the fund to the defendant; that the de fendant received the fund in trust to apply the same in accordance with the terms and

conditions prescribed in the resolutions of the

alumni made at the time of the transfer, and accepted by the defendant's trustees; and that the defendant has committed a breach of duty in failing to comply with such terms and conditions. We are of opinion, however, that the appellate division erred in the relief awarded. The judgment below directs the defendant to surrender and transfer the fund to the plaintiff. From the opinion of the appellate division, it would seem that the character of the judgment granted was dictated by a feeling on the part of the court that its powers were somewhat circumscribed, from the fact that the controversy was before it, not in an ordinary action in equity, but on a submission under the Code. For this reason the court deemed it impracticable to direct a specific performance. At the time the judgment was rendered, section 1281 of the Code forbade the granting of an injunction in a submitted controversy. By the

amendment of 1899 the inhibition is limited to the granting of a temporary injunction. While the remedy of injunction is doubtless a most valuable adjunct to the enforcement of a decree of specific performance, we do not regard the want of power to grant an injunction as fatal to such a decree.

At the time of the gift of this fund to the defendant, the doctrine of charitable trusts or uses was not part of the general law of this state. But by chapter 41 of the Laws of 1868 the defendant was authorized to re ceive real and personal property in trust, among other purposes, to found and maintain professorships. It was further provided that such trusts might be created subject to such conditions as might be prescribed by the grantor or donor, and not in contravention of law. The trust on which the fund was received by the defendant was, therefore, in express terms, authorized by the statute. No provision was contained in the gift that the fund should under any circumstances revert to the donors. The general rule is: "If the trustees of a charity abuse the trust, misemploy the charity fund, or commit a breach of the trust, the property does not revert to the heir or legal representative of the donor, unless there is an express condition of the gift that it shall revert to the donor or his heirs in case the trust is abused; but the redress is by bill or information by the attorney general, or other person having the right to sue." 2 Perry, Trusts, § 744; Sanderson v. White, 18 Pick. 328; Vidal v. Girard's Ex'rs, 2 How. 191, 11 L. Ed. 205; Mills v. Davison, 54 N. J. Eq. 659, 35 Atl. 1072, 35 L. R. A. 113. The judgment below practically abrogates the trust and restores the fund to the plaintiff. To such return the plaintiff was not entitled, though, as donor and possessor of the right to nominate to the professorship, it had sufficient standing to maintain an action to enforce the trust. Mills v. Davison, supra. It may be that a trust might entirely so fail, from the purpose for which it was created becoming impossible of accomplishment, that the fund ought to be returned to the donor. On this question we express no opinion, as no such case is presented here. Therefore, if in this proceeding it was impracticable to grant a specific performance, rather than abrogate the trust, the proceedings should have been dismissed, and the plaintiff relegated to its action in equity. But, as already stated, we are of opinion that the court had power to decree a specific performance, and should have done so.

The judgment appealed from should be modified so that, instead of directing a return of the fund to the plaintiff, it should decree that the defendant hold said fund in trust to apply the same upon the terms and conditions specified in the resolutions of plaintiff's predecessors set forth in the agreed statement of facts; that the defendant in all respects specifically perform the terms, conditions, and obligations of said trust; that, in

case the defendant fail to comply with the conditions of the judgment in these respects within a time to be fixed by the appellate division, then it forthwith pay over and surrender the fund, either into said court, or to trustees to be appointed by the court for that purpose, and that thereafter the plaintiff may apply to the court for such disposition or application of the fund as may be proper under the circumstances; and that either party may hereafter apply to the appellate division for such other and further order or decree to be made at the foot of this judgment as shall be necessary or proper. the defendant is responsible for this litigation, though doubtless from an honest mistake as to its rights, the plaintiff must be awarded the costs of this appeal.

As

PARKER, C. J., and GRAY, BARTLETT, MARTIN, VANN, and WERNER, JJ., concur.

Judgment accordingly.

(163 N. Y. 430)

ULSTER COUNTY SAV. INST. v. OSTRANDER et al.

(Court of Appeals of New York. June 12, 1900.)

PRINCIPAL AND SURETY-TREASURER'S BOND -TERM OF EMPLOYMENT-SUBSEQUENT DEFAULTS.

Where a banking institution at an annual meeting elected a treasurer "for the ensuing year," and such treasurer gave bond to faithfully administer his trust "during his continuance in office," the sureties on such bond were not liable for defaults made by such treasurer after the expiration of a year from his election.

Bartlett, J., dissenting.

Appeal from supreme court, appellate division, Third department.

Action by the Ulster County Savings Institution against Virginia E. Ostrander, executrix of James E. Ostrander, deceased, and others, to recover on a surety bond. From a judgment of the appellate division (44 N. Y. Supp. 181) affirming a judgment of the trial court in favor of defendants, plaintiff appeals. Affirmed.

Appeal from an order and judgment of the appellate division in the Third department, atfirming a judgment which dismissed the plaintiff's complaint, with costs. This action was to recover $25,000, the penalty of an official bond given by James E. Ostrander to the plaintiff for the faithful performance of his duties as its treasurer, and upon which the other defendants are sureties. Since the commencement of the action Ostrander died, and the defendant, Virginia E. Ostrander, as executrix, has been substituted in his place. The plaintiff was incorporated under a special charter, by which the business of the corporation was to be managed by a board of trustees, which was to elect a president, a vice president, and such other officers as it saw fit.

The board was given power to make such by-laws, rules, and regulations as it should judge proper for the election of officers, prescribing their functions, and the mode of discharging them, and to appoint such subordinate officers and agents as it deemed necessary. Chapter 152, Laws 1851. By-laws were adopted, which, among other things, provided that the election of officers should take place annually at the regular meeting in July; that the trustees should elect one of their number as secretary, should elect a treasurer and such assistants as they might deem necessary to be employed in the institution, who were to hold their positions at the pleasure of the board. The by-laws also required the treasurer to give a bond in the sum of $25,000. In April, 1867, the former treasurer resigned, and Ostrander was elected to fill the vacancy until the annual meeting. At the annual meeting held July 16, 1867, Ostrander was elected treasurer for the ensuing year. He then gave the bond in suit, conditioned that if he, at the expiration of his office, or upon request, should make or give unto the institution, their agent or attorney, a just and true account of such sums of money, goods and chattels, and other things as came into his hands, charge, or possession as treasurer, and should do and pay and deliver over to his successor in office, or any other person duly authorized to receive the same, all such balances or sums of money, goods and chattels, and other things which should appear to be in his hands, and due by him to the institution, and if he should well and truly, honestly and faithfully, in all things serve the said institution in the capacity of treasurer as aforesaid during his continuance in office, then the obligation to be void; otherwise, to remain in full force and virtue. That the condition of this bond was broken by various defaults or embezzlements of Ostrander after September, 1871, and before September, 1891, was established upon the trial, and is not denied, but no default or embezzlement was shown to have occurred before September, 1871.

J. Newton Fiero, for appellant. Charles F. Cantine and Howard Chipp, for respondents.

MARTIN, J. (after stating the facts). We are of the opinion that the judgment from which this appeal was taken should be affirmed. The only question which need be considered is whether the bond in suit covered defaults of the treasurer which occurred some years after the expiration of the term for which he was elected; or, in other words, whether it covered any default that occurred after the expiration of the year following his election. The contention of the appellant is that the words, "during his continuance in office," should be construed as including all the time that Ostrander acted as such treasurer, even after the expiration of the year for which he was elected. Upon the other hand,

it is claimed by the respondents that the words "continuance in office" should be con. strued as limited to a continuance in office under the election of July 16, 1867. We are of the opinion that the contention of the respondents must prevail. The election under which the bond was given was for the ensuing year, and the claim that the words "during his continuance in office" extended the security of the bond beyond that period, cannot be sustained. Nor do we discover any principle upon which it can be held that the original election of Ostrander in April, 1867, was a continuing one, or for a time other than until the next annual meeting of the trus tees. His first election certainly terminated when his term under the second election commenced. It is manifest from the record that the election in April was to fill the vacancy caused by the resignation of the former treasurer, and was to continue only until the regular annual meeting in July. He was then elected treasurer for the ensuing year, and the bond in suit was given. In Institution v. Young, 161 N. Y. 23, 55 N. E. 483, the action was upon the bond of the assistant treasurer. But that bond was essentially different from the one under consideration in this case. It contained this additional provision: "It being understood that this bond is to be binding for all the time the said Matthew T. Trumpbour shall hold said office of assistant treasurer, even though he hold under successive appointments." There we held that, when the whole instrument was read together, and its purpose and the circumstances under which it was given were considered, it was plain that the bond was intended as a continuing security during all the time the assistant treasurer should hold office, even if held under successive appointments; and, consequently, that the sureties upon it were liable for defalcations which occurred after the expiration of his first appointment. But the bond in suit contains no such provision. Nor does it contain any provision showing that the parties intended it to be a continuing security, unless that conclusion is to be drawn alone from the words "during his continuance in office." We do not think those words justify us in holding that it was the intention of the parties that the bond should be a continuing security during all the time the treasurer should oc cupy that position, but that their intent was that the bond should be a security to the plaintiff only during his continuance in office under the appointment which was made when the bond was given. In the Young Case the same contention was made as to the meaning of the words "during his continuance in office," and it was then argued by the appellant that the words "as aforesaid," which preceded the words "during his continuance in office," referred to the period of service, rather than to the office. But we held that the words "as aforesaid" referred to the office, and did not relate to the period of serv ice. We are still of that opinion. The opin

lon in that case renders it obvious that the decision was not based upon the words “during his continuance in office," but upon the provision that followed, which, in effect, declared that the understanding of the parties was that the bond was to be binding for all the time the assistant treasurer should hold office, even though under successive appointments. Thus it will be observed that in that case the parties by the last provision expressly declared the particular meaning and intended effect of the bond without leaving the matter of the continuing liability of the sureties in doubt. It is certain that the writer of the opinion in that case did not intend to convey the idea that the decision therein could be sustained upon the words "during his continuance in office" alone. It may be he was unfortunate in his selection of language to express the views of the court, and that it is possible to place a different construction upon the language employed. But the intended decision of the court is manifest when the entire opinion is considered. The decision there. was placed upon the whole instrument when all its provisions were read together. In that case great stress was laid upon the provision declaring the understanding of the parties, which plainly disclosed that when the bond was executed it was intended as a continuing security during all the time the assistant treasurer should hold office, independently of the period of his first appointment. Nothing of the kind is found in the bond in this case. While we find no actual conflict between the decision in the Young Case and our conclusion in the case at bar, it may perhaps be well to add that, if any language was employed in the Young Case which conveys the idea that the decision rested upon the words "during his continuance in office," unexplained by the clause following, it does not fairly express the opinion of the court in that case, and cannot be regarded as authority in a case like this. As most, if not all, of the questions which are argued in this case were involved in the Young Case, we deem it unnecessary to discuss any other than the one already considered. The chief purpose of this discussion is to remove any seeming conflict between the decision in the Young Case and the decision in the case at bar, and to distinctly limit the language employed in the former to the facts of that case. We think that the decision of the appellate division in this case is correct, and that the judgment should be affirmed, with costs.

BARTLETT, J. (dissenting). I am of opinion that the case of Institution v. Young, 161 N. Y. 23, 55 N. E. 483, calls for the reversal of this judgment. I did not vote with the court in that case, as the bond contained words of limitation and restriction which I thought should protect the surety. Here we have no such restriction, but the bond reads "during his continuance in office," as it did in the Young Case. These words are mere sur

plusage, so far as the appointment for one year is concerned, and can be given no force or effect unless they charge the surety according to their obvious meaning. These words were necessarily so construed in the Young Case.

GRAY, VANN, CULLEN, and WERNER, JJ., concur with MARTIN, J., for affirmance. PARKER, C. J., not sitting.

Judgment affirmed.

(163 N. Y. 410)

STEINHARDT et al. v. BAKER. (Court of Appeals of New York. June 12, 1900.)

SERVICE

INFANTS-PROCESS-SUBSTITUTED PRESUMPTIONS-JUDICIAL PROCEEDINGS. 1. Laws 1853, c. 511, providing for substituted service on "any defendant" residing in the state who cannot be found, or, if found, evades services, applies to infants as well as adults.

2. The act of a mother in preventing service of process on her infant children residing with her constitutes an evasion of service, within Laws 1853, providing for substituted service when defendant evades service.

3. A substituted service on infants residing with their mother was sufficient, where the process was served on her, though the order directing such service, which followed the statute literally, did not, in terms, require service on her.

4. It will be presumed that the process of a court of general common-law jurisdiction has been properly served on the defendants.

Appeal from supreme court, appellate division, First department.

Action by Dauphine Steinhardt and others, as executors of Morris Steinhardt, deceased, against John O. Baker. From a judgment of the appellate division (49 N. Y. Supp. 357) affirming a judgment of the special term dismissing the complaint on the merits, without prejudice, plaintiffs appeal. Affirmed.

Nathan Ottinger, for appellants. Charles E. Miller, for respondent.

MARTIN, J. The action, when commenced, was by a vendee of real estate to compel the vendor to specifically perform a contract entered into between them, or, in case it could not be performed, to recover the amount paid thereon, with damages for its breach. On November 8, 1895, the parties entered into a contract by which the defendant agreed to sell, and the plaintiffs' testator to purchase, certain real estate in the city of New York for the price of $65,000; the testator paying $2,000 to apply thereon. On January 13, 1896, the time ultimately fixed for the completion of the contract, the defendant tendered the plaintiff a deed of the premises which was in proper form. If the defendant's title was good, the plaintiff was ready and willing to pay the remainder of the purchase price, but he objected to the title upon the ground that it was unmarketable. It was derived through