amount which was finally allowed. The town auditors themselves, by subscribing to the words, "not good unless countersigned by," in effect adopted the language of Shaw's certificate; and this, then, may be construed to be the duplicate certificate which the statute requires that the town board shall make. It was delivered to the supervisor of the town as required by the statute, for it is marked by him with his signature, "Accepted November 25, 1904." What he may have done with it, or that he may not have delivered it to the board of supervisors, cannot affect the question of whether or not on November 25, 1904, there had been a valid and complete audit of Shaw's claim.

The act of the board of town auditors in allowing the claim is of a quasi judicial nature. Members of the board derive their powers solely from the statute, and may not proceed otherwise than in substantial conformity therewith. It gave them no power to disallow after having made a valid and complete allowance. The audit of the claim, its allowance, and the certificates become in effect the rendition of a judgment by the court of limited jurisdiction. This act was in its nature irrevocable and incapable of modification by the auditors themselves, and that it should be so held after the plaintiff had advanced money to Shaw on the faith of the audit is apparent. The general rule is that a special power conferred upon the officers affecting the interests and rights of others can be exercised but once. "When the officers or body upon whom the power is conferred have executed the power, the authority ceases, and the power becomes functus officio." People v. Stocking, 50 Barb. 573, 581. Boards which derive their power solely from the statute, and whose members act in a semijudicial capacity, exhaust their authority under the statute, and are without power to reconsider, revise, review, or annul their own judicial action after it has been once legally exercised. Jermaine v. Waggener, 1 Hill, 279; People ex rel. Thomson v. Board of Supervisors, 35 Barb. 408. In this case an actual audit on the 25th of November, 1904, was made by the board of auditors. The making, filing, and delivery of the certificates showing the result of the exercise of the semijudicial function of the auditors ended the matter as far as they were concerned, and they were without power to rescind their prior action. The certificate of February 2, 1905, signed by a majority of them, to the effect that Shaw's claim was disallowed, did not affect in any wise the liability of the town, which had already theretofore been passed upon in favor of the claimant and that liability fixed by the legal action of the auditors.

People ex rel. Smith v. Board of Town Auditors, 5 Hun, 647, is not at variance with the views we have expressed. In that case the appellant's claim was considered on November 7th, and audited by the board. Three days afterward the same members who voted to allow the claim voted to reduce it; and it was held that the resolution of the board allowing the claim at the reduced amount, together with its action in making and signing the certificate required by law, in which was included reference to the claims so reduced, was the final action of the board. It did not appear that the first audit resulted in 106 N.Y.S.-7

and 140 New York State Reporter

the making of the certificate which, as that case holds, concludes further consideration of the matter by the board.

The judgment must therefore be affirmed, with costs. All concur.

(121 App. Div. 400.)

MURTHEY v. BURKE

(Supreme Court, Appellate Division, Second Department. October 4, 1907.) COSTS DISMISSAL FOR WANT OF PROSECUTION.

Code Civ. Proc. § 822, provides that, where plaintiff unreasonably neglects to proceed in an action, the court may dismiss the complaint, and render judgment accordingly. Section 3228, subd. 4, gives costs to plaintiff as of course on final judgment, where the complaint demands judgment for a sum of money only. Section 3229 provides that defendant shall have costs of course in an action specified in the preceding section, unless the plaintiff is entitled to costs as therein prescribed. Section 3230 limits the discretion of the court in awarding costs to actions other than those prescribed in the preceding two sections. Held that, where a complaint demanding judgment for a sum of money only was dismissed on defendant's motion for lack of prosecution of the action, defendant was entitled to costs.

Appeal from Special Term, Westchester County.

Action by William H. Murthey against Dominic U. Burke. From so much of an order as denied costs to defendant on dismissal of the complaint, defendant appeals. Reversed.

Argued before HIRSCHBERG, P. J., and WOODWARD, HOOKER, GAYNOR, and RICH, JJ.

Michael J. Joyce, for appellant.

HIRSCHBERG, P. J. The action was commenced in the month of August, 1906, by the service of a summons, together with a notice that, upon default, judgment would be taken against the defendant for a specified sum of money, with costs. The defendant duly appeared by attorney and demanded a copy of the complaint. The complaint was never served, and in November, 1906, the defendant moved for a dismissal of the complaint, with costs, for want of prosecution of the action. The motion was opposed by the plaintiff's attorney, but no affidavit was filed explaining or excusing the delay, and the court at Special Term dismissed the complaint without costs. The appeal is from that provision of the order which denies the defendant costs on the granting of the dismissal.

The order cannot be sustained. It is provided by section 822 of the Code of Civil Procedure that, where a plaintiff unreasonably neglects to proceed in an action, the court may, in its discretion, upon application of the defendant, dismiss the complaint and render judgment accordingly. The discretion having been exercised in favor of the defendant, judgment in his favor necessarily follows. The judgment is a final one, and, by virtue of the provisions of sections 3228 and 3229 of the Code of Civil Procedure, costs belong to the defendant as a matter of right. This was held many years ago in Tillspaugh v. Dick et al., 8 How. Prac. 33; Parker, J., saying (page 33):

"The dismissal of the complaint was a judgment in favor of the defendant, and entitled him to recover whatever items of costs are given him by the Code for services rendered."

It is to be assumed from the notice served with the summons that, had a complaint been served, the demand for relief would have been limited to a demand for a money judgment. That being so, it is immaterial for the purpose of the question under consideration whether the action be legal or equitable. Murtha v. Curley, 92 N. Y. 359, 361. Subdivision 4 of section 3228 of the Code of Civil Procedure gives costs to the plaintiff as of course on final judgment where the complaint demands judgment for a sum of money only. Section 3229 provides that the defendant shall have costs of course in an action specified in the preceding section, unless the plaintiff is entitled to costs as therein prescribed; and, by section 3230, the discretion of the court in awarding costs is limited to actions other than those prescribed in the preceding two sections. It necessarily follows that the court was without power to order judgment in favor of the defendant in this action without granting him the costs to which he is entitled as of right.

The order, in so far as appealed from, should be reversed, with $10 costs and disbursements, and the motion to dismiss granted, with costs of the action and $10 costs of the motion. All concur.

(121 App. Div. 531.)

STEWART et al. v. WOOLLEY et al. (Supreme Court, Appellate Division, Second Department. October 4, 1907.) 1. WILLS-ESTATES IN TRUST AND POWERS.

Testator devised certain of his real property to his executors to take charge of and sell the same at such time within five years after his death as they might be able to obtain $50,000 therefor, and immediately on the expiration of the five years, if the premises were unsold, to sell the same as in their discretion might seem best, and, until the sale, to receive the rents and profits, to pay the taxes, and to invest the balance, the proceeds of such sale and the accumulated rents and profits to be distributed as therein provided to his children and other beneficiaries. Held, that the intendment of testator was an express trust in the executors, and not a power in trust.

[Ed. Note. For cases in point, see Cent. Dig. vol. 49, Wills, §§ 15791581.]

2. PERPETUITIES-SUSPENSION OF ABSOLUTE POWER OF ALIENATION.

An express trust created in executors to sell real property at such time within five years after testator's death as they might be able to obtain $50,000 therefor, and on the expiration of that period without sale to sell as in their discretion they might deem best, unlawfully suspends the absolute power of alienation.

[Ed. Note. For cases in point, see Cent. Dig. vol. 39, Perpetuities, §§ 46, 47, 52, 53.]

3. WILLS-DESIGNATION OF LEGATEES-RELIGIOUS SOCIETIES.

Under a will providing for the distribution of the residue of a fund created by a sale of certain of testator's real property and the rents and profits thereof among such churches as his executors or a majority of them "then" acting should in their discretion deem most deserving, such selection cannot be made at testator's death, but only after the sale.

[Ed. Note. For cases in point, see Cent. Dig. vol. 49, Wills, 88 11161127.]

and 140 New York State Reporter

4. PERPETUITIES-SUSPENSION OF ABSOLUTE POWER OF ALIENATION.

An express trust to receive and accumulate rents and profits of certain of testator's real property until a sale thereof, the sale to be made at such time within five years as a certain price could be obtained, is void. [Ed. Note.-For cases in point, see Cent. Dig. vol. 39, Perpetuities, §§ 67-73.]

5. WILLS-CONSTRUCTION-VOID IN PART-EFFECT.

Testator devised real property to his executors, to take charge of and sell the same at such time within five years after his death as they might be able to obtain $50,000 therefor, and immediately on the expiration of the five years, if the premises were unsold, to sell the same as in their discretion might seem best, and to receive the rents and profits, to pay the taxes, and invest the balance until the premises should be so sold. He then directed that the proceeds of a sale, together with the accumulated rents, should be distributed, a certain sum each to a daughter and son, and a like sum in trust, the balance to be distributed to churches as in the discretion of the executors might be deemed most deserving. Held that, notwithstanding the invalidity of the attempted suspension of the power of alienation until the price named could be obtained and the direction for the accumulation of rents, yet the same were not so interdependent with the scheme of distribution that that also failed, but that the power of sale and scheme of distribution remained undefeated. 6. SAME TRUSTS-CONSTRUCTION.

Under a will providing for the sale of certain of testator's real property and the accumulation of rents and profits until such sale, when the purchase money, together with rents and profits, was to be distributed, a certain sum each to a daughter and son, and a like sum in trust for another son for life, remainder to his children, the balance to be distributed to churches as therein prescribed, if the sale did not realize a sum sufficient to satisfy the provision for testator's children, the rents could be taken to an extent necessary to make up that sum, the excess to go to the churches.

7. PERPETUITIES-ACCUMULATIONS-DISPOSITION IN TRUST-VALIDITY.

A direction that the share of a certain child of an accumulation of rents and profits of land be held in trust for his life, remainder to his children, is void.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 39, Perpetuities, 88 67-73.]

Appeal from Special Term, Kings County.

Action by Sarah E. Stewart, individually and as executrix of and trustee under the will of Edward A. Woolley, deceased, against John H. Woolley, individually and as executor of and trustee under that will, and George E. Woolley, individually and as administrator of the estate of George W. Woolley, deceased, and another. From the judgment, Sarah E. Stewart and George E. Woolley appeal. Modified and affirmed.

The action is for construction of a part of the will of Edward A. Woolley, 'admitted to probate on October 12, 1899. That part provides:

"I give and devise to my executors hereinafter named or such of them as shall qualify and the survivors or survivor of them and his or her successors the house and lot of land situate on the northeasterly corner of Fulton street and Ashland Place (late Raymond street) and also the house and lot of land in the rear thereof known as number 59 Ashland Place in the city of Brooklyn in trust, to receive and take charge of the same and to sell and dispose of the same at such time within five years after my decease as they may be able to obtain the sum of fifty thousand dollars in the aggregate therefor, and immediately upon the expiration of five years from the date of my decease, if said premises remain so long unsold, to sell and dispose of the same separately or together, either at public or private sale, at such price and upon such terms as

they in their discretion shall deem most beneficial and to execute and deliver good and valid deeds of conveyance therefor, and until said premises shall be sold upon the further trust to collect and receive the rents, issues and profits thereof, to pay the taxes, water-rates and assessments that may be imposed on said premises, premiums of insurance and the interest on the mortgage (if any) thereon, and to keep the same in good repair and to invest and keep invested the balance of said rents, issues and profits until said premises shall be sold as aforesaid, when the purchase money received by them from the sale of said premises, together with the said rents, issues and profits and the accumulations thereof, shall be paid and distributed by them as follows:-Ten thousand dollars thereof to my son John H. Woolley. Ten thousand dollars thereof to my daughter, Sarah E. Stewart. Ten thousand dollars thereof to be retained by my executors hereinafter named or such of them as shall qualify and the survivors or survivor of them and his or her successors until the death of my son George E. Woolley, in trust for the following uses and purposes, to wit: to invest and keep the same invested in good and sufficient securities and to apply the interest and income thereof towards the payment of the interest, taxes, assessments, water-rates, premium of insurance and necessary repairs upon the ten houses on Fourth Avenue devised to my executors under the clause of this will; any balance to be paid to my said son George E. Woolley, during the term of his life in quarterly payments; in case the said rents, issues and profits of said premises shall be insufficient to pay said taxes, assessments, water-rates, insurance and repairs.

"In case the rents, issues, and profits arising out of the said premises so devised to my executors under said clause of this, my will, together with the interest and income out of said trust fund aforesaid shall be insufficient to pay and discharge the taxes, assessments, water rates, insurance and all necessary repairs to said premises then I hereby direct my executors to apply so much of the principal of said trust fund from time to time as shall be necessary to carry out said trust.

"Upon the death of my said son George E. Woolley, if there be any of said trust funds remaining in their hands, then I direct my executors to pay and distribute the same among the children of said George E. Woolley, share and share alike.

"The balance or residue of the proceeds of the sale of premises corner of Raymond street and Fulton and Ashland place, city of Brooklyn, to be distributed to and amongst such Free Protestant Church and Evangelical Protestant Churches in sums not to exceed five hundred dollars to any one church, as my said executors or the majority of them then acting shall in their discre tion deem most deserving and in need thereof, but no church shall be selected to receive any benefit under this provision of my will unless the same shall be a free church, where no charge is made or fee is required to be paid to occupy the pews or sittings therein during divine services."

Argued before HIRSCHBERG, P. J., and WOODWARD, JENKS, HOOKER, and MILLER, JJ.

William Sullivan, for appellant.

Melville J. France, for appellant George E. Woolley.

A. F. Van Thun, Jr., for respondent John H. Woolley.

George Fielder, for respondent the Attorney General of the state of New York.

JENKS, J. I think that the intendment of the testator was an express trust in the executors, not a power in trust. Spitzer v. Spitzer, 38 App. Div. 438, 56 N. Y. Supp. 470; Hubbard v. Housley, 43 App. Div. 129, 59 N. Y. Supp. 392, affirmed 160 N. Y. 688, 55 N. E. 1096; Staples v. Hawes, 39 App. Div. 548, 57 N. Y. Supp. 452. I think that the provision empowering the executors to sell "at such time within. 5 years after my decease as they may be able to obtain the sum of