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App. Div.] THIRD DEPARTMENT, SEPTEMBER TERM, 1903. question here for determination is whether a director is such an officer as is contemplated by this section.

In Bigelow v. Whitehall Manufacturing Co. (1 City Ct. Rep. 138) Judge McAdam held that a director was an officer of a corporation within the meaning of this provision. This decision was made in 1879. As far as we have been able to ascertain the decision has never been qnestioned, and has been accepted by the profession as a correct interpretation of the word "officer," as thus used in the statute. (1 Ramsey Pr. [2d ed.] 340.)

A director has frequently been referred to in the decisions of the court as an officer of a corporation, and the statutes themselves sometimes refer to directors as such officers. Whatever might be our views were the question an original one, inasmuch as for over twenty years the accepted interpretation of the statute has authorized a director to verify the pleading of a corporation, we think that it would be unwise now to hold otherwise.

The order should, therefore, be affirmed, with ten dollars costs and disbursements.

All concurred.

Order affirmed, with ten dollars costs and disbursements.

In the Matter of the Appraisal under the Taxable Transfer Laws

of the Estate of AMELIA N. BABCOCK, Late of the Town of

Deposit, Delaware County, Deceased. THE COMPTROLLER OF THE STATE OF NEW YORK, Appellant;

WILLIAM E. Brown, Individually and as Executor, etc., of

AMELIA N. BABCOCK, Deceased, Respondent. Costs upon an appeal from a surrogate's decree vacating a transfer tax assessment

they are governed by Code Civ. Proc. § 3240 — the order allowing them need not specify the items allowed nor fix the rates disbursements may be taxed although not expressly allowed costs on appeal from an interlocutory order, by what Code

provisions governed. A decree of a surrogate vacating and setting aside the assessment of a transfer

tax theretofore made by him is a final order in a special proceeding, and the costs which may be awarded upon an appeal therefrom are governed by section 3240 of the Code of Civil Procedure.

THIRD DEPARTMENT, SEPTEMBER TERM, 1903. [Vol. 86. If the appellate court awards costs, such costs are by the express provisions

of the section allowable at the rates allowed upon an appeal from a judgment, and in the same manner; the order of the appellate court need not, therefore, specify the items of costs allowed nor the rates at which they shall be allowed, but the amount of such costs should be fixed on a taxation thereof by the surrogate. The order of the appellate court need not specify that disbursements as well as costs were allowed, as under section 3256 of the Code of Civil Pro. cedure the award of costs carries with it an allowance of the disbursements

specified in such section. Semšle, that the costs upon an appeal from an interlocutory order are governed

by section 3236 and subdivision 3 of section 3251 of the Code of Civil Procedure.

MOTION by the appellant, the Comptroller of the State of New York, to correct an order of the Appellate Division which affirmed a decree of the Surrogate's Court of the county of Delaware, entered in said. Surrogate's Court on the 23d day of September, 1901, by specifying the amount of costs and disbursements intended and allowed by said order of affirmance.

A proceeding was instituted under the provisions of the Transfer Tax Law (Laws of 1896, chap. 908, art. 10, as amd.) before the surrogate of Delaware county to assess the tax upon the property devised and bequeathed by the will of Amelia N. Babcock, deceased. On September 23, 1901, such surrogate, upon the report of an appraiser duly appointed in such proceeding, made an order decreeing that the property was amenable to the tax and assessing the amount thereof upon the several legatees named in the will. Thereafter an appeal was taken by parties interested from such assessment to said surrogate who made and entered a final order or decision vacating and setting aside the assessment so made. From this decision the Comptroller of the State appealed to this court, where the decree of the surrogate was in all respects affirmed, with costs to appellant against the respondent. Thereafter the appellant's effort to tax his costs upon such appeal, as from a judgment in an action, and to have the surrogate make such order as was necessary to give effect to the same, was resisted by the respondent on the ground that under the order of affirmance the appellant was not entitled to any costs for the reason that the amount or rate thereof was not fixed by the appellate court, and that he was not entitled to any disbursements

App. Div.]

THIRD DEPARTMENT, SEPTEMBER TERM, 1903.

because none whatever were given by said order of affirmance. It was also claimed by the respondent that no more than ten dollars could be lawfully awarded as costs upon said appeal. The surrogate held that such objection was well taken, and the appellant thereupon makes this motion to this court to correct its order of affirmance so as to specify the amount of costs and disbursements intended and allowed thereby.

Curtiss, Arms & Keenan, for the motion.

Barna Johnson, opposed.

PER CURIAM:

The order which we are now asked to resettle was made on an appeal taken from a final order in a special proceeding, and the provisions of section 3240 of the Code are, therefore, applicable to it. Under such section the question whether the appellate court should or should not award costs to the prevailing party was one resting in its discretion. When so awarded the section itself provides that they shall be at the rates allowed upon an appeal from a judgment taken to the same court and in like manner. When, therefore, this court determined that costs should be awarded to the appellant, and 80 directed in its order of affirmance, it was not necessary for it to specify the rate nor the items which were so allowed; they were to be ascertained in the same manner that costs on appeal from a judgment are ascertained, viz., by taxation. Neither was it necessary to specify that disbursements as well as costs were awarded, for, under the provisions of section 3256 of the Code, the award of costs carries with it certain disbursements therein particularly specified, and so far as they are therein specified the appellant may tax them as a part of the costs which this court awarded him.

The authorities relied upon by the respondent's attorneys and by the surrogate are in cases where the order of affirmance was made upon an appeal taken from a mere order incidental to the proceeding, and in no sense a final one, and what is said in those cases has reference to such situation only. In those cases section 3236 and subdivision 3 of section 3251 of the Code control.

The order of this court, as handed down, therefore, expressed all that was necessary to authorize the appellant to tax his costs and

THIRD DEPARTMENT, SEPTEMBER TERM, 1903.

[Vol. 86.

disbursements as on appeal from a judgment in an action, and this application to amend or resettle such order is not necessary and must be denied. On its face it is authority to the surrogate of Delaware county to tax the costs as above suggested and to authorize the surrogate to make such order as was necessary to give effect to the amount so fixed.

The appellant having made the proper claim and been denied it by the respondent, no costs are allowed against him on this motion

All concurred.

Motion denied, without costs to either party.

In the Matter of the Complaint of John J. MOSHANE, a Citizen of

the State of New York, Appellant, v. John H. MURPHY, as Mayor of the City of Cohoes, Respondent.

Election - the appointment of election officials by the mayor of a city cannot be

reviewed by a justice under section 11 of the Primary Election Law.

A justice sitting at chambers has no power, under section 11 of the Primary

Election Law (Laws of 1899, chap. 473), to review the action of the mayor of a city in appointing election officers, as the jurisdiction conferred by such section only relates to a right given or a duty enjoined by that act, while the power of a mayor to appoint election officers is given by section 12 of the Election Law (Laws of 1896, chap. 909, as amd. by Laws of 1901, chap. 95).

APPEAL by the complainant, John J. McShane, from an order made by a justice of the Supreme Court at Chambers and entered in the office of the clerk of the county of Albany on the 8th day of September, 1903, denying the complainant's motion to review and set aside the action of the mayor of the city of Cohoes in the appointment of election officials, and directing him to appoint election officers from a certain list filed with him and authenticated by the appellant as chairman of the Democratic general city committee of the city of Cohoes.

Application under section 11 of the Primary Election Law (Laws of 1899, chap. 473) to review the action or alleged neglect of the respondent in appointing election officers to represent the Demo

App. Div.] THIRD DEPARTMENT, SEPTEMBER TERM, 1903.
cratic party in the city of Cohoes. From an order made by a jus-
tice of the court, denying the application for want of power, the
complainant appeals.

Mark Cohn, for the appellant.
Peter A. Delaney and Henry A. Strong, for the respondent.

PER CURIAM :

We think the justice sitting at Chambers had no power under section 11 of the Primary Election Law (Laws of 1899, chap. 473) to grant the relief asked for by the complainant, as the power of the mayor to appoint election officers is not given by that law, but by the Election Law (Laws of 1896, chap. 909, $ 12, as amd. by Laws of 1901, chap. 95), and the summary jurisdiction given to justices under section 11 of the Primary Election Law only relates to the review of the action or neglect of a public officer or board with regard to a right given or duty prescribed by that act, and, therefore, the justice was right in denying the application for want

of power.

The order should be affirmed, with ten dollars costs and disbursements.

All concurred.

Order affirmed, with ten dollars costs and disbursements.

EUGENE C. JOHNSON and Others, Respondents, v. THE CITY OF

ALBANY, Appellant.

City contract - appeal, from the engineer's decision, to other city officers what delay

in the action of such other officers justifies the contractor in bringing suit - written order for extra work recovery of extra compensation for work incidental thereto - compensation for damages suffered without the contractor's fault vaiver of a provision that claims for extra work shall not be alloroed unless filed— motion to dismiss because the complaint does not state a cause of action waiver thereof amendment, on appeal, of the complaint to conform it to the proof.

Where a city contract provides that in case of a dispute between the contractor

and the engineer in charge of the work as to the amount due to the contractor, the matter may be referred to the superintendent of the water works of the

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