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and 120 New York State Reporter 1447, c. 644. The commission was to consist of the commissioner of public works and the two aldermen at large in Long Island City, and two resident freeholders to be appointed by the mayor. Various and extensive and exclusive powers were conferred upon these commissioners, some of which might be eser. cised at their pleasure; others, only on the petition of a majority of the owners of property fronting on the street or avenue or place to be improved. By sa tion 6 of the act it was provided that, "for the purpose of paying the expenses incurred in making said improvements, the mayor and common council of Long Island City shall be and they are hereby authorized, upon the requisition of said general improvement commissioners, to prepare and issue bonds of said city to be known as 'General Improvement Bonds of Long Island City,' and shall show on their face that they are issued under the provisions of this act and the inprovement for which they are issued.” Such bonds were to be signed by the mayor and city clerk, and attested by the city treasurer, and were to be sealed with the city's seal, and sold by the treasurer under the direction of the mayor. No assessments for any improvement could be made until after such improre ment had been completed. By section 10, "all commissions, boards or bodies for the improvement of streets, avenues and public places in Long Island Cits heretofore created [including the board of Grand avenue commissioners) wbo shall not have completed the duties for which they were created, and whose entire work and improvement shall not be finally completed on or before De cember one, eighteen hundred and ninety-three, shall on December one, eighteen hundred and ninety-three. abate and be abolished, and the terms of office of such commissions and commissioners shall on that day expire, and each of said commissions, boards or bodies shall forthwith turn over to the general improvement commission created by this act all their plant, contracts, books,“ etc., "and said general improvement commission shall thereupon proceed to complete the said improvements then unfinished by said former commissions or boards, under and agreeably to the provisions of this act."

It has been decided that warrants drawn by this board of general improre ment commissioners on the treasurer of Long Island City and unpaid on the 1st day of January, 1898, when chapter 378, p. 1, of the Laws of 1897, went into effect, became, by force of the provisions of the first section of that chajter, obligations of the new city of New York. Koelesch v. City of New York, 34 App. Div. 98, 54 N. Y. Supp. 110.

When, on the 1st of December, 1893, the Grand avenue improvement commission ceased to exist, the work of improving portions of the avenue and Main street was unfinished. It had been prosecuted well on towards comple tion, and until the commissioners were without means to prosecute it further. The duty of completing it was plainly laid upon their successor, the general improvement commission, which was directed to complete it "under and agree ably to the provisions of" the act of 1893, and which therefore had power to raise the funds necessary for that purpose by a requisition upon the maror and council for "general improvement bonds." The language of the statute is mandatory, and any party in interest could have compelled the commission to proceed and complete the work. But the commission did not more, and the property owners did nothing to make it move. Main street and Grand arenue are to-day in the same condition that they were in when the contractor withdrew from the work, early in 1893. The net amount of the assessments laid for the redemption of the certificates of indebtedness was $200.851.00 Of this amount, $98,311.84 have been paid, and $102,569.19 have not been paid. The entire proceeds of the certificates were expended by the Grand arende commissioners in making the improvements authorized by the act under which they were appointed, and in paying expenses and damages incidental thereto.

The testimony makes it plain, I think, that the plaintiffs have suffered some damage by reason of the failure of the general improvement commission to complete the work on Grand avenue authorized by the act of 1890. For the defaults of that commission this defendant is liable. The question therefore is, if the plaintiffs are entitled to relief, can it be awarded in this action? The purposes of the action are to have the assessments laid upon the plaintiffs' property declared to be illegal and void, and to have the same “canceled and mulled," and to rerpetually restrain the defendant from taking any proceeding to collect the same. This relief is demanded upon the ground that

the assessments are void because in violation of the fifth and fourteenth amendments of the federal Constitution, and of section 6 of article 1 of the Constitution of the state of New York, and upon a further ground, which is set forth in the twentieth paragraph of the complaint as follows:

"That the corporation, the city of Long Island City, and the Grand avenue improvement commissioners, the general improvement commissioners, and the defendant in this action, by and through the aforesaid acts, deeds, and proceedings, entered into a contract with the plaintiff and the other property owners wthin the said district that they, and each of them, in consideration of the said assessments, and the provisions of the laws with reference to the lien of the same upon the lands assessed, and to the method and means of collecting the same, would faithfully, honestly, and without undue delay, fully construct and build said Grand avenue according to said maps, profiles, plans, and specifications, and would throw the same open to public travel and traffic, and would enable this plaintiff and the other said property owners to reap and obtain the full benefits and value of said improvements, and that defendant and its predecessors has wholly failed to keep and perform and carry out its contract as hereinbefore set out."

In my judgment, the facts do not support either of these contentions. It is admitted that the act of 1890 was a valid act, and that all the proceedings taken under it by the Grand avenue commissioners were strictly regular. In making the authorized improvements, they were limited to an expenditure of $200,000, for which amount they had power to issue certificates of indebtedness. As required by the act, they certified to the commissioners of estimate and assessments the cost, or approximate cost, of said improvements, and these latter commissioners laid the assessments which are now complained of. It is not charged that the assessments were in any respect unreasonable or unfair. On the contrary, it is alleged in the complaint that "the amount assessed against the lands of this plaintiff, over and above the amount awarded to it for lands taken in and by the report of said commissioners, was a just, proper, and fair amount.” It is also alleged that, in proceedings duly taken, the report of the commissioners, and their awards for damages and assessments for benefits, were in all respects ratified and confirmed by an order of the county court of the county of Queens. That the assessments, when confirmed, were legal and valid, is not, and cannot be, disputed. They were levied by lawful authority, in a lawful manner, and for a lawful purpose. No constitutional right of any property owner was invaded or disturbed by any step taken under the act of 1890. But the plaintiffs say there was a contract. Concede that there was; it was not made with the original plaintiff, the Astoria Heights Company, which was not in existence until 1894, and which took its lands subject to the lien of the assessments. But passing this, there was no contract that the cost of the Grand avenue and Main street improvements should not exceed the amount of the assessments, or that the entire work should be completed with the certificates of indebtedness which the commissioners were authorized to issue. If there was a contract made with any of these plaintiffs, it was made by the Grand avenue commissioners, who were specially authorized by the act of 1890, and who had entire control and direction of the work, and who procured the assessments to be levied. It cannot be said that in accepting office the commissioners engaged to do more than to honestly and diligently discharge the duties imposed upon them by the act, and prosecute the work of improving Grand avenue and Vain street as far as the means at their disposal would permit. This was the extent of any contract obligations which they assumed. They were bound to act discreetly, and to use their best judgment, in order that they might not undertake more than they would be able to accomplish with the $200,000 of certificates to which they were restricted. They were guilty of no fault or imprudence in accepting and acting upon the estimate of their engineer, whose competency is not questioned. But whatever contract between the Grand avenue commissioners and the property owners the law may imply, and however the commissioners may have failed to perform, the consequences of their failure cannot, in my judgment, be visited upon this defendant, nor can any relief be granted against this defendant by rea. son of anything done or not done by them. So we come to the act of 1893.

and 120 New York State Reporter When this act was passed, the situation was that the Grand avenue and Main street improvements had come to a standstill. The commissioners had made and disposed of all the certificates of indebtedness ($200,000) which the act of 1890 authorized them to issue. All of them, in one way or another, had gone into the work. A large portion of them had been paid to the contractor. Some had been sold. Some had been used to meet the "incidental expenses," as the statute permitted. It is not claimed, I think, that the sev. eral parties to whom they were issued did not take them for value and in good faith. It must be assumed that they took them relying upon the assurance of the statute that they would be redeemed out of assessments upon property along the line of the improvement. To these assessments the plaintiffs, as property owners, must be deemed to have assented. They are all bound by the sixteenth paragraph of the complaint of the Astoria Company. But although the means at the command of the commissioners were exhausted, the work was not completed, and the state of a portion of Grand avenue was "worse than the first.” Further legislation was necessary. The result was the act of 1893. This act made it the duty of the general improvement commissioners to complete what the Grand avenue commissioners had left unfinished. This was to be done by the use of Long Island City bonds, to be issued on the requisition of the general improvement commissioners; and, after the work was completed, the cost of it was to be assessed upon the "lots or parcels of land benetited by said improvement.” In the Case of Koelesch, above cited, the Appellate Division approved the finding of the trial court that “on January 1, 1898, the defendant the city of New York, by firtue of chapter 378, p. 1, of the Laws of 1897, became the successor corporation, in law and in fact, of the said corporation the city of Long Island City, and of the general improvement commission of Long Island City, with all their lawful rights and powers, and subject to all their lawful obligations." The learned court also affirmed the proposition that “where a public improre. ment is made under the auspices of a municipal corporation, where the fund for the payment of the same is to be derived from an assessment against the property benefited, no primary obligation against the municipality is created," but that, "where the municipality has neglected to perform the duties imposed by law,” it becomes directly liable to a party aggrieved. The reasons for the rule are stated with great clearness in Beard v. City of Brooklyn, 31 Barb. 142. Yow, the general improvement commission did not obey the mandate of the act of 1893; nor has this defendant, upon which the duty of completing the Grand avenue improvement has descended. For any damages which the plaintiffs have sustained through the neglect or default of the general improvement commission or of this defendant, this defendant is liable. But have they any other remedy than an action for damages? Does the default of the parties charged by the act of 1893 with the duty of completing the improvement of Grand avenue relieve the plaintiffs' property from liability for assessments lawfully laid to pay for the work done by the Grand avenue commission? Has the court any power, in the absence of the certificate holders, to destroy the fund provided by the statute for the redemption of the certificates, and on the faith of which the certificates were negotiated, and the means procured with which the work authorized by the statute was begun and prosecuted almost to completion? For reasons stated or suggested above, I think that each of these questions should be answered in the negative.

There should be judgment dismissing the complaint.

Argued before GOODRICH, P. J., and BARTLETT, JENKS, HIRSCHBERG, and HOOKER, JJ.

Hector M. Hitchings (Lynn W. Thompson, on the brief), for appellant.

George L. Sterling, for respondent.

PER CURIAM. Judgment affirmed, with costs, upon the opinion of Hamilton Odell, referee.

(91 App. Div. 360.)

SCHMIDT et al. v. LIMMER et al.

(Supreme Court, Appellate Division, First Department. February 19, 1904.) 1. WILLS—CONSTRUCTION-LEGACIES-SUBJECTION OF REAL ESTATE.

Where testator at the time of executing his will was possessed of ample personal property to satisfy legacies, the mere existence of a power of sale in the will is not sufficient reason for subjecting the real estate to the pay

ment of legacies on an insufficiency of the personal property. Appeal from Special Term.

Proceedings by Adam Schmidt and another against Katy Limmer and others. From the judginent, the parties appeal. Reversed.

Argued before VAN BRUNT, P. J., and MCLAUGHLIN, PATTERSON, O'BRIEN, and LAUGHLIN, JJ.

G. P. Hotaling, for appellants.
J. M. Allen and I. B. Pollak, for respondents.

VAN BRUNT, P. J. This action was brought to obtain a construction of the last will and testament of Martha Shluter, and to determine whether certain pecuniary legacies given in the third clause of the will are a charge against the real estate of the testatrix embraced within the residuary clause thereof.

The testatrix died on September 20, 1900, without leaving any children or descendants of children her surviving. Her husband had died before her. She left a will which was executed on the 3d of June, 1889, and also a codicil executed in May, 1890, by which she ratified said will, with the exception of one clause affecting a provision made for her brother, giving by said codicil a sum in trust which in her original will she had given absolutely. At the time of the execution of the will and codicil she was in possession of personal property, consisting of stocks and bonds, amounting in value to the sum of $20,000, which property came to her from her deceased husband upon his death. This amount was much more than sufficient to pay the pecuniary legacies aforesaid. At the time of the execution of the will and codicil she was also seised of certain real estate in the city of New York known as No. 212 East Fifty-Third street, which she specifically devised to Katy Pfeiffer, née Shrader, upon certain conditions. She was also seised of certain real estate situate in Far Rockaway, Queens county, the value of which, so far as I can see, is not stated in the record. Subsequent to the execution of the will and codicil, in the year 1891, she invested a large portion of her personal property in the purchase of real estate, designated in the complaint as Nos. 103 and 105 East SeventyFifth street, one of which, No. 105, she sold later and applied the proceeds towards the discharge of the mortgage on premises No. 103. Another portion of this personal property, about $5,000, she expended for living purposes and a trip to Europe. She died seised of the Fifty-Third street property specifically devised, and the Far Rockaway property, and also said premises No. 103 East Seventy-Fifth street. At the time of her death her personal property amounted in value only to the sum of about $4,500, exclusive of certain chattels which she specifically bequeathed in her will. By the first and second clauses of and 120 New York State Reporter the will she made certain specific bequests after the payment of her debts and funeral expenses. It does not appear that she owed any debts. By the third clause of the will she gave personal legacies aggregating about $10,000, and consequently the personal estate which the testatrix left was not sufficient to meet the legacies in question.

86 N.Y.S.-42

It was held in the court below that the legacies were a charge upon the real estate other than that which had been specifically devised. As the rule seems to be established that a will must speak as of the time of its making (Morris v. Sickly, 133 N. Y. 456, 31 N. E. 332), the question to be determined is whether, considering the circumstances of the testatrix at the time of making the will, and the provisions of the will, we can spell out any intention to make the legacies a charge upon the real estate. This is sought to be done because of the existence of a power of sale of real estate in the will, and our att ntion has been called to many cases for the purpose of showing that where such a power existed, and there is no other apparent object for it, and where there is a deficiency of personal property at the time the power of sale was inserted in the will or codicil, an intention to charge the real estate with the payınent of the legacies would be inferred. In the case at bar, however, there was ample personal property at the time of the making of the will to pay all the legacies therein mentioned, and, had it not been for the change in the character of investment, such legacies could have been discharged out of the personal property, with a very large margin over. Under these circumstances it seems impossible to suppose that the deceased had any intention at that time of charging the legacies upon any real estate, because it was not necessary; and it is not shown that she had any real estate of any value upon which the power of sale could operate. It certainly was not intended to operate upon the estate specifically devised. The value of the property at Far Rockaway does not appear, presumably because it was small and insignificant. In all the cases cited by the respondents and also by the learned court in the opinion below, it appeared that, at the time of the making of the will or codicil containing the power of sale, the maker had reason to suppose that his personal estate was insufficient to pay the pecuniary legacies, and therefore it was argued that the power of sale had been inserted in order that a fund might be provided to pay the same, there being no other reason for the existence of such power. The rule laid down in the case of Morris v. Sickly, supra, seems to control the interpretation of this will. From the mere existence in a will of a power of sale, the intention to charge legacies upon real estate cannot be inferred, where, at the time of the making of the will, there was ample personal property to cover all the pecuniary legacies. In all the cases cited where, because of the existence of a power of sale, the intention to charge the real estate with the payment of legacies has been held, a deficiency existed, or was in prospect, at the time of the insertion of the power of sale in the original will or codicil.

The judgment should be reversed, and a judgment entered adjudging that the pecuniary legacies were not a charge upon the real estate, with costs to be paid out of the estate. All concur.

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