jury, would be set aside by the court as trust-estate. Laws 1886, c. 257. Such auagainst the weight of evidence." There-thority is given whenever it shall appear fore, in all this class of cases, it is the duty of the supreme court, not only to inquire whether there is any competent proof tending to establish the guilt of the accused officer, but it must look into the evidence; and, if it finds that there is a preponderance of evidence against the determination of the commissioners, then it has the same jurisdiction to reverse the determination that it has to set aside the verdict of a jury as against the weight of evidence. It is the purpose of the law to give a review in the supreme court by certiorari, not only upon the law, but upon the evidence, to the extent specified in the statute; and every party who seeks such a review is entitled to the fair and judicious exercise of that jurisdiction. We do not perceive that the relator's right to call witnesses, and have them sworn in his behalf, upon his trial, was denied or curtailed by the police commissioner who took the evidence. We are therefore constrained to affirm the order; but, under the circumstances, it must be without costs. "that it is for the best interest of the estate so to do, and that it is necessary and for the benefit of the estate to raise by mortgage thereon or by a sale thereof funds for the purpose of preserving or improving such estate." Under this provision some necessity must exist for the use of money in the preservation or improvement of the property which the estate is not in a condition to supply, and which therefore can only be supplied by borrowing upon a mortgage or selling a part, and using the proceeds. The permission given is in the nature of an exception to a general rule which the statute itself formulates. It forbids any sale in contravention of the trust. Where the testator has withheld from the trustees a power of sale, and organized the trust for a fixed period, it amounts to a direction that the land shall be held for the beneficiaries, and not its proceeds, and any sale by the trustees would be in contravention of the trust. But emergencies might arise in which funds would be required to save the estate from threatened loss, or to improve it where authority to improve was given, or ANDREWS, FINCH, and PECKHAM, JJ., con- it should be needed to prevent serious and ** * (Court of Appeals of New York. March 11, 1890.) Appeal from supreme court, general term, first department. Application of Alfred Roe and William Cruikshank, executors and trustees under the will of Elizabeth F. Floyd, for leave to sell real estate held by them in trust. An order granting the application was reversed by the general term, at the instance of certain infant devisees. John J. Macklin and Evarts, Choate & Beaman, (William V. Rowe, of counsel,) for appellants. Thomas T. Sherman, for respondents. FINCH, J. We approve of the construction adopted by the general term in its examination of the statute under which authority was sought for the sale of the 'Affirming 6 N. Y. Supp. 464. increasing injury. To meet that emergency, power was conferred upon the court to order a mortgage or sale, but not at all to sell for the mere purpose of reinvestment, and with a view only to increase the annual income. That, in a given case, may be what an adult owner, in the free exercise of his ownership, would do as a profitable business measure, taking his own risk in the exercise of his own judgment; but such is not the condition or the duty of a trustee holding land for an infant, even though it be unproductive. The land will not run away or burn up or be stolen, and will be sure to await the infant when the period of possession arrives, while, if turned into money for reinvestment, risks of loss arise, although the trustee be entirely honest. The court, therefore, always hesitates to sell the land of an infant, even where no trust envelopes and protects it, and surrounds the process with all manner of guards and protection; and where it is put in trust, and its enjoyment postponed during a period of infancy, without a power of sale given to the trustee, it should only be to meet an emergency to answer a clear and apparent necessity that authority to sell should be given by the court. And that we think is the plain meaning of the statute. It is contended, however, that we should attach to it a different meaning, and allow it a wider range, and the contention is supported in an elaborate brief, which examines the law before and since the statute, and with an ample collection of the authorities. But the argument comes down to one single proposition, and that is that land may be sold to "improve" the balance of the trust-estate, and that increasing its value in income or principal or both is the sort of "improvement" which the statute contemplates. The doctrine puts the court in the position of an owner striving for the greatest possible profit, instead of that of a trustee, seeking first and foremost the safety and preservation of the trust-estate. It is said the will authorizes the trustees to improve. Its meaning in that respect is not difficult to interpret. Its sixth clause, defining the trust, provides, "after payment of all taxes, assessments, and of so much money as may be necessary for repairs, insurance, or improvements or betterments of any or all of my real estate, to invest the balance, " etc. The "improvements" contemplated and authorized were of the real estate, not of the trust fund, and of the class indicated by the other elements of the phrase used. And it is such improvements, rendered necessary in the ordinary and prudent care of the trust lands, to which the statute refers. In the present case no such improvements are shown to be necessary, or even to be contemplated. The estate needs no additional money for its preservation. Its net income is $24,000 a year, and ample for all the purposes of the trust, besides taxes, assessments, improvements, and betterments. The testatrix assumed that it would be, for she contemplated that a surplus of income would remain, and directed that to be invested in productive real estate. She hoped that land would be added by purchase, not parted with by sales; and so the application to the court for an order of sale rested solely upon the ground that such action would probably result in increasing the trust fund. Not the least necessity for a sale was shown. All burdens were and could be easily borne without it, and the reasons for a sale rested only upon a business prediction as to future values. That will not do. There must be something more to justify the interference of the court. The order should be affirmed, with costs. All concur. (119 N. Y. 515) PEOPLE ex rel. NOSTRAND V. WILSON et al.1 (Court of Appeals of New York. March 11, 1890.) ASSESSMENT-CORRECTION OF ERROR. 1. Where a board of assessors, by mistake, inIclude in their assessment list a lot not within the district of assessment fixed for the assessment of the expenses of an improvement, the error will be deemed "clerical, "within the meaning of the charter of the city of Brooklyn, (title 10, $10,) making it the duty of the board to rectify any errors committed in the laying of any tax and assessment "where the error is entirely clerical." 2. Mandamus is the proper remedy of the owner of the land so included in the assessment to compel the correction of the error, and the collector of taxes is properly joined in the proceeding to restrain him from collecting the illegal tax. 3. Title 18, § 36, of the charter, declaring an assessment that has been confirmed by the common council to be "final and conclusive," does not apply where the assessment is entirely void. Appeal from city court of Brooklyn, general term. On application of Ellen Nostrand, relator, a peremptory mandamus to the board of assessors, for the correction of the assessment roll, was granted by the city court of Brooklyn. The order was affirmed on appeal by the general term, (7 N. Y. Supp. 627,) and defendants again appeal. Almet F. Jenks, for appellants. V. Lowell, for respondent. 'Affirming 7 N. Y. Supp. 627. Sidney PER CURIAM. There was no denial of the facts stated by the relator in the affidavit upon which the motion for the mandamus was based. The defendants opposed the granting of the writ, without putting in issue any of the facts alleged in the affidavit, nor does it appear what objections were interposed. The most favorable view for the defendants is to treat the proceed. ing on their part as in the nature of a demurrer, raising the question whether the facts stated in the moving affidavit were sufficient in law to entitle the relator to the relief sought. People v. Board, 64 N. Y. 627. It appears from the uncontradicted facts that the board of assessors, by mistake, included in their assessment list the lot of the relator, which was not within the district of assessment fixed by the common council for the assessment of the expense of the improvement in question, and was not liable to assessment therefor, and that the collector of taxes was proceeding to collect the assessment by levying the same on the property of the relator. The assessment, upon the facts presented, was absolutely void. By the Brooklyn charter, it is made the duty of the common council, before ordering the grading or paving of a street or avenue, to "lay out a district of assessment," and to cause a map to be made designating the lots and parcels of land to be assessed for the improvement; and it provides that the assessment shall be confined to the district of assessment so laid out. Laws 1873, e. 863, tit. 18, §§ 4, 5. It is made the duty of the board of assessors, by necessary implication, if not by express words, to levy the assessment for a local improvement on the lands included within the assessment district. Title 10, § 3; title 18, § 32 et seq. The intentional inclusion by the board of assessors, in the assessment list, of lands not within the district of assessment, would be a violation of their duty, and a wrong to the owner of the property. By section 10 of title 10 of the act of 1873, power is conferred upon the board, and it is made their duty, to rectify any errors committed in the laying of any tax and assessment in certain specified cases, and, among others, "where the error is entirely clerical." Upon the admitted fact that the relator's property was inserted in the list by mistake, the error must, we think, be regarded as clerical. The admission that the plaintiff's lot was put in by mistake naturally excludes any idea that it was inserted in the exercise of any judgment or discretion, or in pursuance of any determination that the lot was included within the district of assessment. It does not import that the board acted upon any misconception of the law, or of their duty, but that by mere inattention, or rather without any intention, in some way, in making up the list, the relator's lot was inserted. This construction is certainly justified, in the absence of all explanation on the part of the defendants. Mandamus was a proper remedy to compel the performance of the duty of correcting the error, and the collector of taxes was properly joined in the proceeding to restrain him from proceeding to collect the illegal tax. The remedy by mandamus has been sustained in analogous cases. People v. Assessors, 44 Barb. 148; People v. Olmsted, 45 Barb. 644; People v. Supervisors, 4 Hill, 20; HUNT, J., Barhyte v. Shepherd, 35 N. Y. 255. Under the charter of Brooklyn, the asgessment list remains in the custody of the board of assessors. The objection that it does not affirmatively appear that the relator had applied to the board of assessors before commencing the proceeding is not a jurisdictional defect; and the omission is not, under the circumstances, such substantial error as requires the reversal of the order. The point that no remedy is open to the relator, for the reason that the assessment has been confirmed by the common council, and that an assessment, where so confirmed, is declared by the statute to be "final and conclusive," (title 18, § 36,) is not, we think, well taken. This provision cannot be construed as applying to a case where the assessment is utterly void and illegal, and without jurisdiction. See People v. Brooklyn, 71 N. Y. 495. The order and judgment should be affirmed. All concur. (119 N. Y. 519) MCBRIDE V. MCBRIDE.1 (Court of Appeals of New York. March 11, 1890.) APPEAL-DIVORCE-ALIMONY. 1. An order of the general term, reversing an order of the special term, denying a motion for a temporary allowance and counsel fee in an action for a divorce, and remitting the case to the special term for a decision upon the merits, is not final, and no appeal lies from it to the court of appeals. 2. Where a judgment of limited divorce has been granted to the wife, and the husband has appealed, the action is pending until the final deter mination of the appeal, within the meaning of Code Civil Proc. N. Y. § 1769, which authorizes the court, during the pendency of the action, to make orders directing the husband to pay such sums as may be necessary to enable the wife to prosecute or defend the action. Appeal from supreme court, general term, first department. Action by Josephine McBride against Robert P. McBride for limited divorce. Defendant appeals from an order of the general term, reversing an order denying plaintiff's motion for alimony and counsel fees pending an appeal by defendant from a judgment of limited divorce. Preston Stevenson, for appellant. Samuel G. Adams, for respondent. entered in the action, and remitted the case to the special term for a decision upon the merits of the application. From that order the present appeal is taken. The appeal must be dismissed. The order of the general term is not final. The special term is yet to act upon the application, and may refuse it upon the merits. We cannot know in advance what the ultimate determination will be. But since the question of power has been fully argued before us, and an expression of our opinion may save another appellate journey from the special term to this court, we have deemed it best to express our concurrence in the conclusion of the general term that power exists to make the allowance during the pendency of the appeal, and until the ultimate determination of the action. The special term followed the decision in Winton v. Winton, 31 Hun, 290, and some other cases in the supreme court, which merge every right of the plaintiff in the final judgment, and deny the power of the court thereafter to make a temporary allowance. No case in this court appears to have decided the question. In Kamp_v. Kamp, 59 N. Y. 212, and Erkenbrach v. Erkenbrach, 96 N. Y. 456, the applications were made many years after judgment, in the absence of any appeal, and when by lapse of time no appeal was possible. The actions were no longer pending, jurisdiction over the parties had ceased, and all questions as to alimony were decided by and referable to the judgments entered. But in this case, although a judgment, final for the purposes of an appeai, is entered, the action is still pending. The jurisdiction over the parties remains through the further steps regularly taken, and the action is in no sense or respect ended. By the terms of section 1769 of the Code, the allowance may be made "from time to time" "during the pendency" of the action, and is described 66 as necessary to enable the wife to carry on or defend the action." That is one of the purposes to be subserved, and the need of it is quite as pressing and obvious after judgment, and pending the appeal, as before. It could not have been contemplated that before judgment the wife should be judgment in her favor should be left to aided in maintaining her rights, but after starve during the pendency of an appeal, and should be disarmed by her very success from defending the judgment in her favor. The suggestions that by granting the motion the defendant's stay of proceedings will be violated and impaired, and that if the judgment is affirmed he may in effect be compelled to pay the same amount twice over, have these answers: that the allowance sought is temporary, and may be much less than the permanent alimony which has been stayed; and the court, in the exercise of its discretion, may and should require, as a condition of the allowance, that the plaintiff stipulate that the sums allowed shall, in case of an affirmance of the judgment, be applied by her as payment pro tanto thereon. These views will enable the special term to act under FINCH, J. The special term denied a motion for a temporary allowance and counsel fee, in an action for a divorce, upon the ground that final judgment had been rendered for the plaintiff, awarding to her alimony and costs; and that, although the defendant had appealed from that judgment, and procured a stay of proceedings, and the wife had no means of support or for defending the appeal available in the emergency, yet the court was without power to grant her the desired relief. The general term reversed this order, holding that power existed to make the allow-standingly, and we hope may serve to obance sought, although judgment had been 'Affirming 8 N. Y. Supp. 448. viate the need of an appeal from its order. The appeal should be dismissed, with costs. All concur. (120 N. Y. 21) JUGLA et al. v. TROUTTET. (Court of Appeals of New York, Second Division. March 18, 1890.) CONTRACT-GOOD-WILL-ACCOUNT STATED. 1. Plaintiffs, glove manufacturers in Paris, sold out the stock in trade and good-will of their New York business to defendant, and agreed to sell him their gloves upon terms as favorable as to any other person, and "that, so long as" defendant should continue the business purchased by him, they would not sell their gloves to any other person. Defendant agreed not to purchase gloves of the same grade, "so long as" plaintiffs should continue to manufacture such gloves and furnish them to him. Held, that plaintiffs' undertaking to furnish gloves to defendant was dependent upon their continuance to manufacture them, and that a contrary implication could not be given the contract, although the reputation of plaintiffs' gloves may have been the inducing cause of defendant's purchase. 2. An account presented to and acquiesced in by the debtor does not lose its character as an account stated, by reason of its including installments of purchase money not yet due, where it appears that it was the understanding of the parties that the purchase money and the current dealings between them should go into the same account, for the purpose of ascertaining what amount remained unpaid. Appeal from common pleas of New York city and county, general term. Action by Alfred H. Jugla and Victor Moriquand against Amedee Trouttet. A judgment entered upon report of a referee in favor of the plaintiffs was affirmed at general term, and defendant again appeals. On June 22, 1881, an agreement under seal was entered into by the parties, and, after reciting that the plaintiffs had succeeded to the business of manufacturing gloves at Paris, and selling them at New York, before then carried on by D. Jugla, and that the defendant had acted as agent for him and them in the city of New York, and was desirous of purchasing such business in that city, the agreement proceeded to the effect that the plaintiffs thereby sold to the defendant the entire stock in trade of the business in the city of New York contained in a store referred to, and the good-will of the business, for which the defendant agreed to pay 176,938 francs and 90 centimes, payable at the rate of 10,000 francs per month, beginning September 30, 1881, and to bear interest at the rate of 5 per cent. The plaintiffs agreed to sell to the defendant gloves manufactured by them upon terms as favorable as to any other purchaser from them. And so long as the defendant should continue the business so purchased by him the plaintiffs would not sell to any person other than the defendant, in the United States, any gloves manufactured by them, nor would they establish any agency there for the sale of such gloves. And the defendant agreed that he would not purchase gloves of the same grade of any other person, so long as the plaintiffs should continue to manufacture such gloves, and to furnish them to him pursuant to the agreement. The defendant was authorized to use the name of D. Jugla in the business, and to sign such name to or indorse it upon any receipts, post-office orders, drafts, or checks. And the plaintiffs agreed to purchase upon commission in Paris, and ship to the defendant upon his order, such fancy goods as he might desire. In July, 1882, the plaintiffs discontinued the manufacture of gloves, except to fill some orders on hand, and entirely ceased manufacturing them in August following. For that reason the defendant, after August 1st, was unable to obtain any gloves of the plaintiffs. On June 30, 1882, they sent to the defendant a statement as of June 5th of the account between them, embracing in it the amount unpaid upon the agreement, which showed a balance in their favor against him of 97,659 francs and 70 centimes, and by an accompanying letter requested him to examine it, and let them know whether it agreed with his books. This statement was received by the defendant. They afterwards had some further transactions arising from the purchase by the plaintiffs, and shipment to him, of fancy goods. The referee directed judgment against the defendant for $22,047.67, with costs. David Wilcox, for appellant. Coudert Bros. and Paul Fuller, for respondents. BRADLEY, J., (after stating the facts as above.) This action is founded upon an alleged account stated, which it is claimed was produced by the defendant's adoption of or acquiescence in a statement of the dealings between the parties, made by the plaintiffs as of the 5th day of June, 1882, and sent to the defendant on the 30th of that month, with a letter requesting him to examine it, and advise them on the subject. In July following, after receiving such statement, the defendant went to Paris, there saw the plaintiffs, and informed them that he had not examined it, but would do so on his return to New York, and let them know if there were any mistakes in it. He did return to New York in September, and afterwards made to the plaintiffs no objection to the account, and the referee found that he acquiesced in its correctness, and that thereupon the account became stated, by and between the parties, up to and as of June 5, 1882. It is contended by the defendant's counsel that the action upon account stated is not supported, because the amount which produced the balance represented by the statement was not then due from the defendant to the plaintiffs; and that whether the plaintiffs should finally be entitled to it was dependent upon the performance by them of the covenants in the agreement. The time for the payment of the entire purchase money at the rate of 10,000 francs per month, as provided by the contract, would not then expire until March 30, 1883; and, at the time the statement of account was rendered, the defendant was not in default. It embraced all the dealings between the parties from the time of making the agreement of June 22, 1881, in the form of an account, both debit and credit, including the amount unpaid of the purchase money mentioned in such agreement. If the fact that the balance, as represented by the account rendered, was not then payable, denied to the statement the character of an account stated, the cause of action as alleged was not established by the evidence. And in that view the further inquiry may arise whether that question was, by any exception, made available to the defendant on this review. There may have been an effectual adoption, by acquiescence, of the amount of the balance at a specified time, in a statement embracing the unpaid purchase money; and, if nothing intervened or was essential on the part of the plaintiffs to perfect their right to payment when it became payable, no reason appears why it may not have been treated as an account stated. It appears that the understanding between the parties was that certain moneys in the plaintiffs' hands should, from time to time, be applied upon the installments as they became due upon the contract; and that any amount of remittances by the defendant to them in excess of that requisite to pay for goods shipped by them to him should be credited on account of money due upon the contract. It thus appears that the purchase money mentioned in it and the current dealings between the parties were to go into the same account for the purpose of ascertaining what amount remained unpaid. The statement does embrace all these dealings, and is distinguishable from one of a mere statement of the amount of unpaid installments not due upon an executory contract. This balance, as upon an account stated, has relation only to the time up to which it was made and rendered, and is subject to correction for any mistake which entered into its production. Lockwood v. Thorne, 18 N. Y. 285; Young v. Hill, 67 N. Y. 162; Samson v. Freedman, 102 N. Y. 699, 7 N. E. Rep. 419. If when the contract was introduced in evidence the performance, subsequently to the time of the rendition of the account, of any covenant on the part of the plaintiffs was required to support their claim to recover, they had the burden of proving such performance. The defendant does not, in his answer, allege any breach of the contract, but does charge that he was induced to make the purchase of the New York stock of goods and take the business upon the belief, which the plaintiffs fraudulently induced him to entertain, that they would continue to manufacture and furnish him gloves for a course of years; but in fact they then intended not to continue to so manufacture gloves, and supply him with them, and concealed such purpose from him. The issue of fraud was found against the defendant, and such finding of the referee had the support of evidence. It is, however, argued by the defendant's counsel that the plaintiffs undertook by the contract to continue to manufacture gloves and furnish him with them for his trade; and that when they ceased and refused to do so they were chargeable with a breach of the contract. They did not in express terms undertake to sell him gloves for any specified time, but they did agree to sell to him gloves manufactured by them upon terms equally as favorable as they sold them to any other party, and that so long as the defendant should continue in the business in the city of New York they would sell to no other person in the United States. While it is very likely that the defendant made the purchase and assumed the business with a view to and in expectation of receiving from the plaintiffs for many years the "D. Jugla" gloves for his trade, the provisions of the contract will not bear the construction requisite to constitute an unqualified undertaking of the plaintiffs to continue the supply to him for any definite time, or for such time as the defendant should continue in the business. They do agree to sell him gloves manufactured by them, and not to sell to others who may come in competition with him. The defendant agrees "that so long as" the plaintiffs "continue to manufacture said gloves, and to furnish the same to him,' etc., he "will not purchase of any other person any gloves whatever of the same grades. It is not essential to mutuality of covenant that the provisions of the contract so expressly declare. A covenant of one party to sell or purchase might imply a corresponding covenant of the other party to the contract to purchase or sell. Barton v. McLean, 5 Hill, 256; Baldwin v. Humphrey, 44 N. Y. 609; Butler v. Thomson, 92 U. S. 412. And when any act of the parties, or either of them, is essential to carry out the intention of the parties, appearing by the provisions of a contract, the stipulation for the performance of such act will be deemed within its provisions, as effectually as if actually expressed. Jones v. Kent, 80 N. Y. 585; Booth v. Mill Co., 74 N. Y. 15. The terms of the agreement fairly import the intent of the parties, which is deemed within its covenants, that, so long as the defendant should continue the business so purchased by him of the plaintiffs, the latter should sell to him, and he should purchase of them, gloves for his trade, provided the plaintiffs continued to manufacture gloves. This qualification quite clearly appears by the provisions of the contract, and there is no opportunity to spell out or imply a covenant on the part of the plaintiffs to continue in the business of manufacturing, or which denied to them the right at their pleasure to discontinue the production of gloves. It may have been assumed by the parties that the making of gloves, and the sale to and purchase by the defendant, would be continued as long as the latter desired to carry on, in New York, the business so purchased by him, and that such expectation on his part was a leading inducement to him to make the purchase. It is in that view that the defendant's counsel urges that the intent to accomplish such purpose should be treated as within the covenants, and that any other view would render the contract unreasonable, and place him at the mercy of the plaintiffs. Reference is made to Russell v. Allerton, 108 N. Y. 288, 15 N. E. Rep. 391, in support of such contention. There the rule was well stated, to the effect that, when there was doubt or uncertainty as to the meaning of language employed, the court, for the purpose of construction, would seek for the intent of the parties, and would not give to it such interpretation as would make the contract unreasonable, and place one of the parties entirely at the mercy of the other. And the canon of construction in the other cases cited, that when from the language used there is manifested a clear intention that the |