and unused during the whole summer, and nify its assent thereto on the

her furniture taken out, and no notice was given the company. In an action on the policy, Held, That the jury should have been instructed to find for defendant on the ground

of the violation of this condition.

policy." The vessel was vacant and unoccupied during the whole of the summer of 1878, and no notice to the company or assent by it was shown. She was left lying on the beach without any occupants; her furniture was taken out, and no use was made of her during 1878.

The plaintiff, Reed, procured a policy of insurance from defendant, insuring the steamer Oceanus, "while plying Jamaca bay, and bay and harThe question was submitted to bor of New York, at such points the jury to determine whether the and places as it may be necessary vessel, at the time of the loss, was to send her during the continuance" lying at anchor" within the true of this policy, or while lying at intent and meaning of the policy, anchor, or any bulkhead, dock or and a verdict was rendered for the pier."

The steamer was destroyed by fire on September 28th, 1878, while she was lying on the beach where the plaintiff had intentionally caused her to be driven by steam, head on, at high tide. Holes were also opened permitting the water to run in and out of her hull as the tide

rose and fell. A cable from the bow of the boat was fastened to a piece of railroad iron buried in the beach, and another cable from the vessel's stern was attached to an anchor. The vessel had been thus situated for a number of mon.hs before her destruction by fire.

plaintiff.

Two questions are presented by this appeal:

First, whether the vessel, situated as this vessel is conceded to have been at the time of the loss, was "lying at anchor" within the true intent and meaning of the policy.

Second, whether the above quoted provision respecting occupancy, &c., applies to this vessel.

Held, That the construction placed upon the policy extending it to cover a loss occurring while the vessel was situated as this vessel was, cannot be sustained; that the language of the policy was exclusive; The policy also provided, that "if that the vessel was only insured the premises should be vacated in while she was plying the water, or whole or in part, and shall re- was lying at anchor, or at a bulkmain unoccupied for the space of head, dock, or pier; that the fact twenty days, or if the risk shall that a vessel with her anchor out be increased or rendered more might happen by means of an exhazardous by a change in the oc- ceptionally low tide to touch bottom cupation of the premises, or by would not take her out of the proany other means whatever within tection of the policy; that in such the control of the assured, this a case the grounding would be an policy shall be of no effect, accidental and casual circumstance; unless the company shall be im- but in this case the vessel was intenmediately notified and shall sig- tionally beached, and that a vessel

so beached cannot be said to be ly- SpecialTerm, granding a mandamus. ing at anchor. The relator was, during the years Also held, That the policy should 1878-9, one of the highway combe construed to give effect to every missioners of the town of Elmira, part of it, that the word "prem- Chemung county. In November, ises," in the last quoted clause, 1879, he presented to the defendmeans the assured property, in ants his account, as such commisthis case the steamer Oceanus; sioner, against the town for the that such vessels are usually occu- years 1878 and 1879, amounting to pied by their crews, and when $54, which was duly verified, and laid up are not unfrequently the payment thereof was demanded by dwelling places of those having the relator of said board. The bill charge of them; that the jury should was for twenty-seven days' service, have been instructed to find for the and specified the particular services defendant on the ground of the rendered, giving dates. The board violation of this condition. of town auditors took action upon Judgment reversed, and new trial said account, and made the followgranted.

Opinion by Barnard, P. J.

MANDAMUS. AUDITING

TOWN ACCOUNTS.

ing indorsement thereon: "Bill of M. H. Thurston, as commissioner of highways

Allowed.

$54 00

34.00

20 00,"

Rejected..

N. Y. SUPREME COURT. GENERAL without specifying the items or

TERM. THIRD DEPT.

parts of items, of said account, The People ex rel. Michael H. which constituted or made up said. Thurston, respts., v. The Board of sum of $20, so disallowed and reTown Auditors of the Town of jected. The per diem allowance of Elmira, applts.

Decided January, 1880.

A board of town auditors has no right to depart from the per diem allowance to town officers fixed by statute, but the number of days' service claimed is open to examination by them.

The board is not bound by the number of days' service charged in the bill; but, in order to a proper and legal audit, the board must examine the bill in detail, and allow or disallow the various items according as they are found correctly or incorrectly charged, both in fact and in law.

commissioners of highways, for services performed by them, is fixed by statute at $2.

The relator applied to the court, at Special Term, for a writ of manda.nus, requiring said board of town auditors to do such acts as were necessary to the proper auditing and allowance by said board of his account or claim. The court made an order directing such writ to be issued, directed to said board, requiring it, when next convened at a public meeting, to audit the claim of the relator, and allow the sum of $2 per day for each day actually Appeal from an order, made at and necessarily spent by him in the

It is no proper or just audit of an account made up of numerous items to allow a gross sum, instead of considering and passing upon the

items.

discharge of his official duties as one It is no proper or just audit of an of the commissioners of highways account made up of numerous items of said town; and that, in case any to allow a gross sum, instead of conof the items of said claim should be sidering and passing upon the disallowed, they specify the item or items. part thereof so disallowed. The writ and the order directing its issuance were duly served upon the members of the board.

Order affirmed, with $10 costs and disbursements.

Jno. T. Davidson, for applts. J. A. Reynolds, for respts. Held, That from the per diem N. allowance to commissioners of highways, fixed by the statute, the board of auditors had no right to depart; but that the number of days of service claimed was open to examination by that body.

This is a question of fact, the truth of which the board may inquire into; and this question of fact the board must determine, in order to make the audit of the account.

That the question here was, whether the board of auditors did, in this case, actually examine, consider and pass upon the relator's account, by determining the number of days' service which he rendered to the town as highway commissioner.

That if the board had performed this duty, it was not amenable to the process of mandamus. If not, the writ was properly granted.

That the board was not bound by the number of days' service charged in the bill. But that, in order to a proper and legal audit of the account, the board must examine the bill in detail, and allow or disallow the various items, accordingly as they shall be found correctly or incorrectly charged, both in fact and in law.

Vol. 9.-No. 19.

Per curiam opinion. All concur.

REFERENCE.

Y. SUPREME COURT. GENERAL
TERM. SECOND DEPT.

S. Hopkins Keep, respt., v. Lester
Keep, applt.

Decided December, 1879.

The complaint averred that defendant ha! agreed that certain premises owned by him should belong to plaintiff, his son, if the latter should pay all the household expenses of defendant and his wife, or the survivor; that plaintiff expended over $5,000 in executing this contract, when he was prevented by defendant's deeding the property to his second wife. This was all denied by the answer. Held, That the issue was upon the agreement and its performance, and that a compulsory reference would not be proper.

The complaint in this action avers that the defendant, being the owner of certain premises in Brooklyn, agreed with his son, the plaintiff, that if he, the plaintiff, would pay all the household expenses during the life of defendant and his wife, and the life of the survivor, the premises should belong to the plaintiff.

The complaint further avers that the plaintiff expended over $5,000 in executing this contract, when he was prevented from further execution by defendant's giving a deed thereof to his second wife.

These averments are denied by the answer.

P. & D. Mitchell, for applt.
E. New, for respt.

.

the taxes and assessments which are liens on the property, and the purchaser pays over to him the full amount of his bid, the referee is bound to protect such purchaser by paying the taxes and assessments, and if he fails to do so, and the same are enforced against the lands, he is liable therefor.

Where the purchaser pays the whole amount of his bid, the referee is not relieved from liability by the fact that the terms of sale gave the purchaser permission to pay the assessment and have it allowed out of the parchase price.

Held, The issue is therefore properly upon the agreement and its performance. If there was such an agreement, and it was performed, the plaintiff's case is made out without reference to the amount of the expenditure. The case is not one involving a long account. It involved no account in the sense which calls for a reference under the The decree in this action directed statute. It is true that, upon the that the referee first pay out of the issue of performance, the plaintiff proceeds of sale the taxes and asmay be called upon to prove the sessments which were liens upon payment of many items of expense, the premises sold. The referee to but he cannot recover upon them.

They are only incidentally involved, and are not the thing for which the action is brought.

sell was the same referee who took proof and reported the assessment in this case as a lien upon the premises. The purchaser paid the whole In case the action was technically of the sum bid, over $16,000, to the referable, a reference should not referee. The referee did not pay be ordered, in view of the important this assessment, and the same was question of fact to be determined enforced against the purchaser's before the matter of the account land. became one of importance. This Held, That this case falls within question ought to be tried by a jury, the case of Easton v. Pickesgill, 55 unless the parties consent to a ref- N. Y., 310. In that case the referee was directed to first pay out of the proceeds of sale all taxes and assessments. The Court of Appeals held that he was bound to follow the decree.

erence.

A compulsory reference should not have been ordered, and the order should be reversed, with costs and disbursements.

Opinion by Barnard, P. J.

FORECLOSURE. REFEREE. N. Y. SUPREME COURT. GENERAL

TERM. SECOND DEPT.

Held, That the permission given by the terms of sale to the purchaser to pay the assessment and have it allowed out of the purchase price, upon papers showing its payment, does not relieve the referee from liability if the purchaser does

Mary Weseman v. Catharine Win- not pay the assessment, but pays

grove.

Decided December, 1879.

Where the decree of sale on foreclosure directs

the whole amount of his bid to the referee.

Held, That by paying the whole the referee to first pay out of the proceeds amount of his bid to the referee,

the referee was bound to pro- ure of mortgage, directing Albert tect him, under the decree, by pay- Daggett, Sheriff of Kings County, ing the assessment, and if he failed to sell the real estate covered by so to do and the same was enforced the decrees. The sheriff immediagainst the lands, he was liable ately advertised the property for therefor. sale on the 10th of January, 1879. On that day he made the sales, and the plaintiff bought the property.

The Albany City Savings Instituhis office expired on the 31st De- tion, respt., v. Mary D. Burdick et cember, 1878. On the 18th De- al., applts.

cember, 1878, there were delivered Decided January, 1880.

to him three decrees upon foreclos- In order to reform a deed on the ground of