Town of Lyons v. Chamberlin

32 N.Y. Sup. Ct. 49

• Court: New York Supreme Court
• Decided: June 15, 1881
• Status: Published

Opinion

Hardin, J.:

The plaintiff appeals from the judgment herein entered December 18, 1880, in Wayne county clerk’s office, and in its notice of appeal specifies the particular parts of said judgment from which an appeal is taken. The plaintiff also appeals from an order of the Special Term entered in Wayne county, December 18, 1880, which order vacated a judgment entered on the 21st of October, 1880. The plaintiff also appeals, thirdly, “ from that part and portion of the eighth paragraph of the interlocutory judgment entered herein in said clerk’s office on the 3d day of August, 1871, which part and portion is therein contained and expressed in the following words, to wit: “ That said defendants be allowed for all the same and the proceeds thereof, which they have in good faith laid out and expended in building and equipping said road through the county of Wáyne, and for any legal purpose mentioned in the written agreement between the defendant Parshall and the said commissioners put in evidence in this case.”

The plaintiff also appeals from an order made at Special Term, and entered 27th April, 1880, which order confirmed the report of the referee as modified, and overruled some of plaintiff’s exceptions and sustained others.

Section 1316 of the Code of Civil Procedure provides that an appeal taken from a final judgment, brings up for review an interlocutory or an intermediate order, which is specified in the noUce of appeal, and necessarily affects the final judgment.” * *

If the order of July 30,1877, referred to in the notice of appeal, had been specified at large, it would, under the section quoted, have been here for review in all its parts. But the appellant in its notice of appeal has referred to one paragraph of the order or interlocutory judgment, and by thus doing expressly limited the right of review to that portion so specified in its notice of appeal.

The remaining portions of the order or interlocutory judgment remain standing obligatory upon the parties unappealed from. That interlocutory judgment recites the findings of fact and of law made by Mr. Referee Macomber, and then it is ordered and adjudged “ that the said report of said referee be and the same hereby is in all things confirmed. ” Thus we see vital and controlling portions of the interlocutory judgment are not brought up before us upon this appeal for review. Besides the quotations we have given, it is stated in said interlocutory judgment, that the referee found there was no actual fraud committed or deception practiced by the defendants Parshall, Cole, Perrine and Chamberlin, or by either of them in any of the proceedings relating to the bonding of said town in aid of the construction of said railroad.”

We must hold, therefore, that the testator was allowed properly for all money expended by him in and about the construction of the road, and in the preliminary proceedings in aid of the construction of the road while acting in good faith as agent or trustee for the town. (Colburn v. Morton, 36 How., 150.) . It was proper to allow the usual fees or commissions given to parties acting as trustees, as there was no stipulation that the funds should be received and disbursed without charge. (King v. Talbot, 40 N. Y., 96.)

The referee reported, December 30, 1878, that the plaintiff was entitled to judgment against Parshall for the sum of $36,149.44.

After that report was made the usual rule in regard to interest upon verdicts or reports applied, and the 'plaintiff was entitled to recover interest thereon. (Code of Procedure, § 310; Laws of 1869, chap. 807 ; Fuller v. Squire, 8 How., 121; Hunn v. Norton, Hopkins’ Chy., 344.)

Although the general rule is that a trustee, acting in good faith, keeping funds in hand ready to disburse, without mingling them with his own, should not be charged with interest thereon (Jacot v. Emmett, 11 Paige, 143), we see no reason after a trustee’s accounts are stated, and he ordered to pay them over forthwith, why he should not, if any delay in payment occurs after such a report is made, be charged with interest; if he rvould avoid paying interest he should pay to the party or deposit the funds in court. (Hunn v. Norton, Hopkins R., 344; Hoffman’s Prac., 112; Code of Civil Pro., § 1235.)

We should modify the judgment so as to allow the plaintiff to recover interest from the date of the report. In other respects the several orders and the final judgment should be affirmed with costs.

The order allowing interest from the entry of judgment modified, so as to allow interest on the amount found due by the referee from the date of the referee’s report, and in all other respects orders affirmed, and the judgments affirmed, with costs to respondent payable out of the fund.

Talcott, P. J., concurred; Smith, J., not voting.

So ordered.