THIRD DEPARTMENT, SEPTEMBER TERM, 1898.

John M. Kellogg, for the appellants.

[Vol. 33.

Horace D. Ellsworth, for the respondents.

PER CURIAM:

Section 11 of the General Assignment Act (Laws of 1877, chap. 466) requires that a citation must be issued to all parties interested whenever a judicial settlement of the assignee's accounts is had. In any question affecting the assignee and a creditor only it is sufficient to cite the assignee alone; but if, in such a case, the assignee chooses to go into a final settlement of his accounts the citation to "all persons interested," required by section 11 and referred to in section 13, must then be issued. And section 13 plainly directs that such a citation must be served on the sureties of the assignee as well as on all creditors and other parties interested.

The proceeding before us was one inaugurated by the assignee for a final settlement of his accounts, and, hence, very clearly, under section 13, the sureties were entitled to be cited.

It is claimed by both parties upon this motion that the decree rendered against the assignee in such proceeding is prima facie binding against the sureties. Assuming that to be so, we are of the opinion that the clear right given by such statute to the sureties to be made parties, and so to be heard upon the question of what and how much should be charged against their principal, is a right of which they should not be deprived.

It is urged by the respondent that the sureties are not prejudiced by the omission to bring them in as such parties, because the decree so rendered against the principal is only prima facie evidence against them; that, not being a conclusive adjudication as to them, they are still at liberty, when called upon to pay in accordance with its requirements, to contest the same and show wherein its provisions and requirements are erroneous. But evidently this puts them in a false position with reference to the claim made against them. They are confronted with an apparent adjudication in favor of that claim and the burden is thrown upon them of overcoming it. Every item charged upon such accounting against their principal is presumed to have been properly charged, and this presumption the sureties are required to overcome by proof. Such presumption has been obtained by the claimants in violation of the statute and is one to

App. Div.]

THIRD DEPARTMENT, SEPTEMBER TERM, 1898.

which they are not entitled. It gives them an undue advantage over the sureties and operates to their prejudice.

The order appealed from should be reversed, and the application of the sureties should be granted.

All concurred.

Order reversed, with ten dollars costs and disbursements and the motion of the sureties granted.

THE VILLAGE OF CHAMPLAIN, Respondent, v. MATILDA MCCREA, Appellant, Impleaded with the FIRST NATIONAL BANK of Champlain.

Eminent domain — proceedings by water commissioners of a village to acquire water rights-failure to file maps and plans as required by statute.

Where a petition, in proceedings instituted by a board of water commissioners of a village, to acquire, by condemnation, under the provisions of section 223 of chapter 414 of the Laws of 1897, the water and water rights necessary for a system of water works, sets forth that the water commissioners caused a map to be filed in the county clerk's office, but contains no allegation that any map or plans were filed in the village clerk's office, and the proof upon the hearing in such proceedings does not disclose the making or filing of plans in any office-although a map and order were filed in the county clerk's office and a duplicate of the map in the village clerk's office - the petition is insufficient to give the court jurisdiction, and the proceedings are irregular and should be dismissed.

LANDON, J., dissented.

APPEAL by the defendant, Matilda McCrea, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Clinton on the 11th day of January, 1898, upon the decision of the court rendered after a trial at the Clinton Special Term, adjudging that the plaintiff is entitled to take and hold certain water rights; also from an order made at the Clinton Special Term and entered in said clerk's office on the 11th day of January, 1898, allowing certain amendments to the petition by which this proceeding was instituted and directing the appoint ment of commissioners to appraise certain water rights; also from an order or decision made at the Clinton Special Term and entered in said clerk's office on the 11th day of January, 1898, overruling

33 259 35 91 33 259 r165a264

THIRD DEPARTMENT, SEPTEMBER TERM, 1898.

[Vol. 33. the objections of the defendant, Matilda McCrea, making certain findings and declaring certain conclusions; also from an order made at the Clinton Special Term and entered in said clerk's office on the 15th day of March, 1898, appointing commissioners of appraisal and fixing a time for a meeting thereof.

This proceeding was instituted by the board of water commissioners of the village of Champlain, in the name of said village of Champlain, to acquire by condemnation the water and water rights necessary for the system of water works of said village, as provided by section 223 of the Village Law of 1897 (Chap. 414).

John P. Kellas, for the appellant.

Wilmer H. Dunn, for the respondent.

HERRICK, J.:

The petition of the water commissioners alleges that these proceedings are instituted "as provided by section 223 of the Village Law of 1897." That section provides for the filing of a map and plans in the office of the village cierk, and of a certified copy of the map in the county clerk's office of each county in which any of the lands are situated. The petition further sets forth that the water commissioners caused a map to be filed in the Clinton county clerk's office; there is no allegation anywhere that any map or plans were filed in the village clerk's office, and the proof upon the hearing failed to disclose the making or filing of plans in any office, but did disclose that a map and order were filed in the county clerk's office on the second day of July, and a duplicate of the map in the village clerk's office on the seventh day of July.

We think that, for this omission to comply with the provisions of the statute, the proceedings are irregular and the petition insufficient to give the court jurisdiction, and for these reasons the proceedings should be dismissed, with costs.

Substantially the same questions are involved in the appeal from the order made in the case of The Village of Champlain v. Matilda McCrea and Emmett N. Fitch (post, p. 636), and the order in that case should, therefore, also be reversed and the proceedings dismissed.

All concur, except LANDON, J., dissenting.

Order reversed and proceedings dismissed, with costs.

App. Div.] THIRD DEPARTMENT, SEPTEMBER TERM, 1898.

JOHN R. YOUNG and GEORGE W. NEWMAN, Respondents, v. WINFIELD S. STONE, as Sheriff of Broome County, Appellant.

Sheriff- he is not bound by an undisclosed agreement between the execution creditor and a vendee of property levied on, that the bill of sale thereof is valid.

A sheriff, to whom an execution has been issued, is not bound by an agreement, entered into without his knowledge, between the execution creditor and another party holding a bill of sale of merchandise from the debtor, by which such bill of sale is recognized as valid, nor is he estopped thereby from enforcing the claim, constituting the basis of the action in which the execution was issued, against the merchandise mentioned in such bill of sale, where such bill of sale was made in fraud of the creditors of the debtor.

APPEAL by the defendant, Winfield S. Stone, as sheriff of Broome county, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Broome on the 24th day of May, 1895, upon the verdict of a jury, and also from an order made at the Madison Special Term and entered in the office of the clerk of the county of Broome on the 15th day of February, 1898, denying the defendant's motion for a new trial made upon a case containing exceptions.

Prior to the commencement of this action the plaintiffs were copartners in trade, doing business as tobacco merchants in the city of Philadelphia, Penn., and the firm of Scott & Clark were cigar manufacturers in the city of Binghamton, in this State. The plaintiffs sold Scott & Clark leaf tobacco, and in December, 1889, Scott & Clark were indebted to them on account thereof in the sum of about $1,226.24, for which amount Scott & Clark had given them six promissory notes.

On the 19th of December, 1889, one of such notes, amounting to $217.78, had matured, and one of the plaintiffs went to the city of Binghamton to see if such claim could be adjusted. The firm of Scott & Clark were at that time indebted to a number of other persons, of which fact the plaintiffs were aware.

On the twentieth of December the plaintiffs procured an attachment to be issued in an action founded upon the note which had matured. The grounds stated in the affidavit for the granting of such attachment were that "the defendants (Scott & Clark) are

THIRD DEPARTMENT, SEPTEMBER TERM, 1898.

[Vol. 33.

about to dispose of their property with intent to defraud their creditors."

The warrant of attachment being procured, one of the plaintiffs, together with their attorney and a deputy sheriff of the county, with such attachment in his possession, went to the place of business of Scott & Clark, and as the result of negotiations then and there had, the plaintiffs procured a bill of sale signed by one of the firm of Scott & Clark, in the name and in behalf of Scott & Clark, of all the merchandise and personal property of every name and nature belonging to the firm of Scott & Clark, which bill of sale was given in consideration of the indebtedness of Scott & Clark of $1,227, together with $73 costs of the attachment; the bill of sale recites that it is made in consideration of such indebtedness, and to secure the plaintiffs for the notes given therefor, "and to secure the other creditors that Scott & Clark are owing, and said goods are to be held and collected by said Young & Newman for their purpose and benefit, and to secure other creditors." The notes owing by Scott & Clark to the plaintiffs were surrendered up to Mr. Clark at the time of the execution and delivery of the bill of sale.

The keys of the store were delivered to one of the plaintiffs, and he assumed to take possession thereof, made a memorandum of the stock in trade, and property in the store; the inventory so taken shows the value of the stock in trade to be $2,140.74; the book accounts amount to about the sum of $3,000.

Amongst the other creditors of Scott & Clark was one Frank R. Keyes, to whom they were indebted in the sum of $1,527.47. Mr. Keyes commenced an action in the Supreme Court against Scott & Clark for the above-mentioned sum on the 20th of December, 1889. Scott & Clark appeared separately by attorneys; made offers of judgment, which were accepted; judgment was thereupon entered, and an execution issued and placed in the hands of the sheriff, the defendant Stone, on the afternoon of December twentieth, and the defendant thereupon levied upon the property of Scott & Clark and sold the same under such execution at public sale to various purchasers.

Thereafter the plaintiffs commenced an action against the defendant for conversion, alleging that they, the plaintiffs, "were the owners of, entitled to, and in possession of, certain goods and chat