Statement of case.

the opposite party to show that those facts did not exist, assuming that they were decisive in the determination, before he can call upon the court to reverse its decision.

In an action against a municipal corporation to recover the salary of a municipal officer, brought by an assignee, a claim against the officer for moneys of the corporation unlawfully paid to and received by him is a proper set-off.

The act of 1875 (chap. 49, Laws of 1875) authorizing actions to be brought by and in the name of the people of the State to recover back moneys, unlawfully obtained, belonging to a municipal corporation, does not deprive a municipality of the right to set-off in an action against it a claim against the plaintiff, although it may arise out of a transaction which might under said act be the subject of a suit in behalf of the people.

(Argued April 22, 1878; decided May 21, 1878.)

APPEAL from judgment of the General Term of the Supreme Court in the first judicial department, affirming a judgment in favor of defendant, entered upon a verdict.

This action was brought by plaintiff, as assignee of Thomas C. Fields, to recover a balance alleged to be due and unpaid upon the salary of said Fields as corporation attorney.

Defendant pleaded, as a set-off, an indebtedness of said Fields to the city for moneys alleged to have been unlawfully received by him belonging to the city, which moneys were alleged to have been unlawfully paid over to him by the comptroller of the city, claiming to act under authority of the provisions of the tax levies of 1869 and 1870 (Laws of 1869, chap. 876, § 7; Laws of 1870, chap. 383), in relation to the payment of claims of certain fire companies known as "suburban companies." The moneys so paid were the same, to recover which, an action was brought by The People v. Fields, which is reported in 58 N. Y., 491. It appeared that there was paid over to Fields, on the order or warrant of the comptroller, on June 30, 1870, the sum of $459,977.79.

Further facts appear in the opinion.

Granville P. Hawes, for appellant. The claim of defendant never constituted a valid cause of action in its favor, and

Opinion of the Court, per ANDREWS, J.

was not a proper set-off. (People v. Fields, 58 N. Y., 491, 509, 514; People v Ingersoll, 58 id., 21.)

Wheeler H. Peckham, for respondent. The cause of action pleaded by defendant constituted a good set-off against plaintiff's demand. (People v. Fields, 58 N. Y., 491, 497, 504-506; Harway v. Mayor, etc., 1 Hun, 629; Andrews v. Artisan's Bk., 26 N. Y., 298.)

ANDREWS, J. The principal questions in this case were determined in The People v. Fields (58 N. Y.,

491).

The court decided in that case that the payment by the Comptroller, to Fields, made on the 30th day of June, 1870, was unauthorized and illegal, and that a right of action accrued to the city against Fields, to recover back the money so paid to him.

The conclusion that the payment was illegal proceeded upon a construction of the acts of 1869 and 1870, aided by a consideration of the relation of the suburban fire companies, so called, to the city, and the fact that the members had no legal claim to compensation for their services. The decision was made after careful examination and consideration, and is adhered to. It was unnecessary in this case for the defendant to show the facts proved or admitted in the case of The People v. Fields, and considered in aid of the interpretation there given to the statutes by this court. The court having determined that the statutes did not authorize the payment made by the comptroller, it was incumbent upon the plaintiff here to show that the facts considered by the court in The People v. Fields did not exist, assuming that these facts were decisive in the determination made, before he can call upon the court to reverse its decision. This is a sufficient answer to the position of counsel that it does not now appear that there was no legal claim in favor of the members of the suburban companies to compensation for their services, and that no inference can be drawn that the sum authorized to be paid under the act of

Opinion of the Court, per Andrews, J.

1869 was a gratuity. Moreover, no suggestion was made on the trial of any distinction on this point between the cases, but it was assumed that the suburban companies were organized under the arrangement stated in the answer.

The facts proved established a liability against Fields to the city for money had and received. The money was paid to and received by him, without authority, and the law implies a promise to repay it. (Coleman v. People, 58 N. Y., 555-557; Andrews v. Artisans' Bk., 26 id., 298.) The decision in 58 N. Y. also disposes of the point that Fields was not liable, having received the money as attorney for the firemen.

The claim against Fields was a proper set-off in the action. The act chapter 49, Laws of 1875, does not deprive a municipality of the right when sued to set-off a claim against the plaintiff, although it may arise out of a transaction which might be the subject of a suit in behalf of the people. The act gives a right of action to the State, in certain cases, but it does not deprive a municipality of a right to bring an action in the courts of this State to recover its funds or property unlawfully diverted, although proceedings on its behalf may be stayed under the provision of the second section. It does not appear that an action has been brought by the State against Fields under the act of 1875, or that any proceedings have been taken in the original action since the reversal of the judgment in the 58th New York. Under the circumstances of this case, we think the right of set-off existed, notwithstanding the statute of 1875.

We find no error in the judgment, and it should be affirmed.

All concur, except CHURCH, Ch. J., absent.
Judgment affirmed.

Statement of case.

IN THE MATTER OF THE APPLICATION OF THE DEPART-
MENT OF PUBLIC PARKS TO ACQUIRE TITLE TO LANDS
FOR "A ROAD OR PUBLIC DRIVE."

An award of the commissioners of estimate and assessment, appointed in
proceedings under the act of 1813 (chap. 86, Laws of 1813), to acquire
lands for a street improvement in the city of New York, when confirmed
by the Supreme Court, is final and conclusive both upon the city and the
owners; it is in the nature of a judgment and cannot be assailed col-
laterally.

Where, therefore, an award is made to "unknown owners
" and upon
application to the court for the payment of the award there appears to be
conflicting claimants, the only question to be determined is, who is the
unknown owner? When ascertained he is entitled to the award the same
as if he had been known and the award made to him by name; it is
immaterial whether he owned an absolute fee or a fee subject to a public
easement; the amount awarded must be taken to have been made for
his interest whatever it was.

Whoever enters upon land under an agreement to purchase does not hold
adversely to the vendor until his agreement is fully performed so that
he is entitled to a conveyance.

A possession of land is not adverse so as to render a deed thereof void for champerty under the statute (1 R. S., 739, § 147) unless it be under claim of a specific title.

D. entered into possession under a parol agreement with H. the owner, for the purchase of the land lying between two designated streets which had been laid down upon maps but had not been opened as streets. At that time the land was fenced along the center of one of the streets. Two years thereafter D. took a deed bounding him by the outer line of the street. H. died leaving a will by which he devised all his real estate to S. who executed a deed of the strip of land between the outer and center line of the street to G. More than twenty years after the first entry by D., who had remained in possession, but less than that time after the conveyance to him, the said strip of land was taken in proceedings to acquire title for a road or public drive. An award therefor was made to "unknown owners," which was duly confirmed. Upon application for the award made by G., held, that the award was conclusive upon the city, and it could not question the right of the owner thereto; that D. did not establish title by adverse possession, that the deed to G. conveyed a valid title, and that he was entitled to the award.

(Argued April 23, 1878; decided May 21, 1878.)

Statement of case.

APPEALS by George B. Grinnell and John Dalley, claimants, from an order of the General Term of the Supreme Court in the first judicial department, reversing an order of Special Term as to the disposition of an award to "unknown owners made herein.

The nature of the proceedings and the facts appear sufficiently in the opinion.

James A. Deering, for appellant. The city was not entitled to the award on the assumption that the land for which it was made had been dedicated to public use. (Laws 1813, chap. 86, § 178; Pittman v. Mayor, etc., 3 Hun, 372; 62 N. Y., 637; Dolan v. Mayor, etc., id., 472; In re Arnold, 60 id., 26; In re Commrs., 50 id., 493; In re Seventy-sixth street, 12 Abb. Pr., 317; In re Sixty-fifth street, 23 How. Pr., 256.) The order of confirmation was final and conclusive that the land had not been dedicated, and cannot be attacked or reviewed collaterally. (Swift v. Poughkeepsie, 37 N. Y., 511; People v. Collins, 19 Wend., 56; Suprs. v. Briggs, 2 Hill, 135; Laws 1813, chap. 86, § 178; Laws 1862, chap. 483; Laws 1865, chap. 565.) The award having been made of the fee of the land taken the court cannot in this proceeding go behind the report and order of confirmation and consider the award as representing a lesser interest in the land. (Trinity Ch. v. Cook, 21 How., 89; Turner v. Williams, 10 Wend., 140; Gillespie v. Mayor, 23 id., 645.) Before a dedication could be complete an acceptance was necessary on the part of the city. (Niagara Co. v. Bachman, 66 N. Y., 266; Badeau v. Mead, 14 Barb., 328; Fonda v. Borst, 2 Abb. Ct. App. Dec., 155; Holden v. Cold Spring, 21 N. Y., 474; In re Eleventh Ave., 49 How. Pr., 208; Laws 1865, chap. 565, § 1; Underwood v. Stuyvesant, 19 J. R., 186; Clements v. West Troy, 16 Barb., 251; Grinnell v. Kirtland, 2 Abb. [N. C.], 386; 3 Hun, 372; 62 N. Y., 472.) Dalley's deed conveyed no title to the street. (White's B'k v. Nichols, 64 N. Y., 65; Fearing v. Irvin, 4 Daly, 385; Sherman v. McKeon, 38 N. Y., 266; Bissell v. SICKELS-VOL. XVIII.

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