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(178 N.Y.S.) L. Ed. 1157; Central Railroad v. Pettus, 113 U. S. 116, 124, 5 Sup. Ct. 387, 28 L. Ed. 915; Woodruff v. N. Y., L. E. & W. R. R. Co., 129 N. Y. 27, 29 N. E. 251; Schoenherr v. Van Meter, 215 N. Y. 548, 109 N. E. 625; Jessup v. Smith, 223 N. Y. 203, 207, 119 N. E. 403; Strong v. Dutcher, 186 App. Div. 307, 174 N. Y. Supp. 352.

In Matter of Watt, 10 Daly, 11, and Matter of Manahan, 10 Daly, 39, the court refused allowances to counsel for creditors upon an accounting by an assignee. When those cases were decided, the General Assignment Act of 1877 (chapter 466, as amended by chapter 318, Laws of 1878) was in force. Section 26 of the 1877 act contained language practically identical with that in the present Debtor and Creditor Law with regard to the award of costs and counsel fees. But in neither of those cases is the decision based upon the ground of want of power. The court merely seemed to feel it was unwise to make such an award. In Matter of Barr & Co., 6 Misc. Rep. 526, 27 N. Y. Supp. 416, an allowance for counsel fees was made payable by the losing party, and in Matter of Oakley, 41 Misc. Rep. 652, 85 N. Y. Supp. 227, such an allowance was made for the counsel fees of the assignee payable out of the fund. And in Matter of Talmage, 39 App. Div. 466, 475, 476, 57 N. Y. Supp. 427, the court stated in general terms that section 26 of the 1877 act authorized an award of counsel fees as well as costs. It also stated it was immaterial whether the award was called an allowance or counsel fees.

Thus the courts have recognized that the power exists; and if the award may be made to the assignee for his counsel fees, there is no reason why it may not be made to a creditor for his counsel fees. The statute makes no distinction. It merely authorizes the award of counsel fees. It does not say to whom they may be awarded. If the power exists to make such an award of counsel fees to an assignee, it must exist to make a similar award to a creditor; and if the court has the power to make the award payable from the estate in the one case, it must have the like power in the other case. That this may be done has been expressly held in cases in other states. Krodel's Assigned Estate (No. 2), 27 Pa. Super. Ct. 421; Mitchell v. Tyler, 49 S. W. 422, 20 Ky. Law. Rep. 1249, 1252.

[3] The costs that may be awarded are the same as in an action. Matter of Rauth, 10 Daly, 52. It has been held that an award of counsel fees cannot exceed 5 per cent. of the amount invoved; that is, that it must be limited to the amount of an additional allowance that might be granted in an action. Matter of Risley, 10 Daly, 44, 46. But the reason for this holding is not apparent in the language of the statute. That imposes no limitation. If the court's power is thus limited, the provisions of the statute are substantially nullified. Five per cent. of the amount involved in many instances would be wholly inadequate as a counsel fee; and as there is nothing in the statute to indicate such a limitation, and nothing to show that the award should be made on the basis of an additional allowance, the power of the court to fix the amount must be deemed to be unre

stricted. In this proceeding the objecting creditor is allowed costs and a counsel fee of $250, all payable out of the estate.

When the prior decision was made, confirming the referee's report and upholding all the surcharges against the assignee, it was not noted that the referee's report is in error in one regard. It states, in findings 17, 24, and 41, that the account of the assignee, as filed, shows that he charges himself with $16,104.91 and credits himself with $12,441.52. These figures are incorrect. The amended account, as filed, does not show this. The principal mistake in the referee's statement seems to have been caused by his including twice certain items.

The amended account, as filed, shows in Exhibit A the gross receipis to be $11,918.51, and the gross expenditures to be $8,714.90. But Exhibit B shows the additional receipt (October 13, 1916) of $641.65, and the additional expenditure (October 13, 1916) of $373. Thus the total receipts were $12,560.16, and the total expenditures $9,087.90. This leaves, according to the amended account, as filed, in the hands of the assignee, $3,472.26. To this, of course, the amount of the surcharge, totaling $1,122.81, must be added, making a total of $4,595.07, which is to be paid by the assignee as directed by the court's order which has been signed.

(189 App. Div. 904)

PINES v. TRAKTMAN et al.

RUDOLPH WALLACH CO. v. SAME. (Supreme Court, Appellate Division, Second Department. October 3, 1919.) 1. ADVERSE POSSESSION 114(1)-EVIDENCE INSUFFICIENT TO SHOW POSSES

SION FOR TWENTY YEARS.

Eridence held insufficient to show that plaintiffs or their predecessors in title had had adverse possession of the premises for the statutory period

of 20 years. 2. CHAMPERTY AND MAINTENANCE C 7(1)~QUITCLAIM DEED BY ONE OUT OF POS

SESSION NOT SHOWN TO BE CHAMPERTOUS.

A quitclaim deed by the record owner of land, who was out of possession, cannot be deemed champertous, where the character of the posses

sion at the time of the execution of the deed was not shown. 3. TAXATION C 734(5)-TAX DEED BASED ON SALE OF PROPERTY OF HOSPITAL

INVALID.

Though an exemption from taxation in favor of the property of a hospi. tal is personal to the owner, yet title based on a tax deed for taxes levied while the property was in the possession of the hospital cannot be upheld, on the theory that after conveyance by the hospital the exemption was lost, and the grantee could not assert the invalidity of the previous

tax levy. 4. WATERS AND WATER COURSES Ew203(1)—DISTINCTION BETWEEN CHARGE FOR WATER AS A TAX AND AS A VOLUNTARY PURCHASE STATED.

A rate or charge for supplying water, not based on the amount consumed, but deterinined with reference to the dimensions, value, exposure, use, etc., of a building, is a tax; but, where the charge depends upon the amount used, the transaction is a voluntary purchase.

[Ed. Note.--For other definitions, see Words and Phrases, First and Second Series, Tax.]

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

(178 N.Y.S.) 3. WATERS AND WATER COURSES Ow203(14)--FORECLOSURE FOR WATER CHARGES

LESS THAN $16 DENIED.

Where unpaid water charges for which premises were liable amounted to less than $16, foreclosure should not be decreed; but the city of New York, in which the premises were located, should proceed in the manner indicated by Greater New York Charter, s 1017, under which the lien of

the water charges will continue as a valid lien, etc. Appeals from Special Term, Kings County. Actions by Dora Pines and by the Rudolph Wallach Company against Libbie Traktman and others and Celia Moliver. From judgments for defendant Moliver in both actions, dismissing the complaints on the merits, plaintiffs appeal. Affirmed.

The following is the opinion of Benedict, J., at Special Term: These two cases were by consent of counsel tried together. They are ac. tions for the foreclosure of tax liens on certain premises in the borough of Brooklyn, and are defended by the defendant Celia Moliver, who holds the record title under a deed from the Roosevelt Hospital, on the ground that the premises, as the property of the Roosevelt Hospital, were exempt from taxation, and hence the tax liens are void. The corporation counsel has, accordingly, taken over the prosecution of the actions on behalf of the city of New York. The validity of the tax liens is sought to be supported mainly upon the ground that the premises were sold for taxes in 1887, and that the grantee under the tax deed entered into possession, and that he and his successors in interest have been in actual, open, and notorious possession thereof ever since, and hence, at the time of the levy of the taxes which form the basis of the liens under foreclosure, the title of the Roosevelt Hospital had been divested by adverse possession.

The Roosevelt Hospital acquired the title to the premises in question upon Its incorporation on or about February 2, 1864, by Laws of 1864, chapter 4, under a deed of trust made by James C. Roosevelt Brown to John M. Knox, dated November 5, 1860, and the will of James H. Roosevelt, probated Decem. ber 16, 1863. The particular provisions of these instruments it is unnecessary to set out. The Roosevelt Hospital never took actual possession of the premises and never collected any rents therefrom. By a quitclaim deed, dated June 17, 1915, and recorded August 23, 1915, the Roosevelt Hospital conveyed the premises to the defendant Celia Moliver. The taxes for which one of the tax liens was sold are taxes of the years 1900 to 1908, inclusive, and water rents for the years 1899 to 1907, inclusive. The taxes for which the other lien was sold are taxes of the years 1909 to 1912, inclusive, and water rents for the years 1908, 1909 and 1911.

[1] To substantiate the claim of adverse possession the plaintiff proved a chain of title beginning with a tax deed from the registrar of arrears of the city of Brooklyn to Frank J. Munson, dated June 29, 1887, and recorded July 18, 1887. This deed is claimed by defendant Moliver to be void, because of the exemption of the property of the Roosevelt Hospital from taxation, and this proposition is not seriously disputed. It was shown that Munson was in possession and received rents from the premises for some time before his death, which occurred on August 31, 1895; but it does not appear by any clear or convincing evidence how long before his death he took possession. It is impossible to make a finding not based on guesswork that the adverse possession of Munson under his tax deed commenced prior to 1895. I think the evidence would justify me in finding that the premises were held adversely from that time until 1912, or perhaps until August, 1914, Since that time the character of the possession has not been shown, as the person in possession at the time of the trial, and for two years before, one Otti or Otte, is not in the chain of title, and is not shown to have been paying rent to anybody who claimed under a deed. In my opinion, therefore, proof of adFor other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

verse possession falls short of the required 20 years. McMahon's posses. sion was not shown to have been hostile to the record owner, and the first possession under a claim of title was that of Munson, the date of the beginning of which cannot be found to have been prior to 1895, as already stated. It is well settled that adverse possession must "be shown by clear and cogent evidence." Cutting v. Burns, 57 App. Div. 185, 187, 68 N, Y. Supp. 269, 271.

[2] The contention that the quitclaim deed from the Roosevelt Hospital to Celia Moliver was champertous is without merit, because the character of the possession, at the date of this deed, June 17, 1915, is not shown.

[3] It is contended by the plaintiff that the defendant Moliver is not in a position to contest the validity of the tax liens sought to be foreclosed, because the exemption of the property of the Roosevelt Hospital from taxation was a privilege personal to that corporation, which it could not transmit or transfer to any grantee. It is true that as soon as the hospital conveyed the property the exemption ceased. But to sustain the plaintiff's proposition would involve holding that the transfer of the property from the hospital to a private owner validated void taxes and void sales thereunder. If the property were exempt from taxation while it belonged to the hospital, any taxes attempted to be levied thereon during the period of such ownership were void, and constituted no lien upon the premises; and the attempted transfers of the alleged tax liens passed nothing to the plaintiffs in these actions which could be made the basis of a suit for foreclosure. Any person interested in the property can, I take it, defend such a foreclosure suit on the ground that the proceedings on which the alleged tax lien was founded are void, and hence that there is no lien to foreclose.

The authorities cited on behalf of the plaintiff's on this point are clearly distinguishable from the instant case. They cite, for example, Mickes v. Tousley, 1 Cow. 114, where a bailee of certain sheep sued a judgment creditor of his bailor and a deputy sheriff in trespass for taking and carrying away sheep on the ground that they were exempt from execution. It was correctly held that the exemption could be availed of only by the owner of the sheep. They also cite People ex rel. Jones v. Feitner, 157 N. Y. 363, 51 N. E. 1002, affirming 32 App. Div. 23, 52 N. Y. Supp. 622, where it was held that prior to chapter 317 of the Laws of 1897 property bought with pension money was not exempt from taxation where the title stood, not in the name of the pensioner, but of his wife. And they cite City of Rochester v. Rochester Railway Co., 182 N. Y. 99, 118, 74 N. E. 953, 70 L. R. A, 773, atfirmed 205 U. 8. 236, 27 Sup. Ct. 469, 51 L. Ed. 784, where it was held that an exemption from liability to pay for a part of the paving of streets where street railroad tracks were laid was personal to the corporation to which the exemption was granted, and did not pass to its successor. But it is to be noted that in that case the pavement for part of which the defendant was held liable was laid subsequent to the transfer. The other cases cited by the plaintiff on this point have been examined with the like result-that they are all distinguishable from the instant case, because here the contention is that the transfer of the property validated void acts.

[4, 5] There remains the question whether the unpaid water rents constituted a valid lien on the premises in question, so as to give validity to the tax liens to the amount thereof. The Court of Appeals has recently stated the rule to be that a rate or charge for supplying water, not based upon the amount consumed, but determined with reference to the "dimensions, value, exposure, use," etc., of a building is a tax, but that where the charge de pends upon the amount used the transaction is a voluntary purchase. N. Y. Univ. v. Am. Book Co., 197 N. Y. 294, 297, 90 N. E. 819. In my opinion, therefore, the second lien is valid to the extent of the water charges for 1911, with interest, and no more. This amount is very small, $15.74; and I am there. fore of opinion that foreclosure should not be decreed, but that the city should proceed in the manner indicated by section 1017 of the Charter, under which the lien of these water rates will continue as a valid lien and may be sold again, if in the meantime they be not paid.

Judgment for the defendants in both actions, dismissing the complaints on the merits, without costs.

(178 N.Y.S.) Argued before JENKS, P. J., and PUTNAM, BLACKMAR, KELLY, and JAYCOX, JJ. Wm. P. Burr, of New York City, for appellants.

Fitzgerald, Stapleton & Mahon, of New York City (William J. Mahon and James M. Gorman, both of New York City, of counsel), for respondent.

PER CURIAM. Judgment affirmed, with costs, upon the opinion of Mr. Justice Benedict at Special Term.

(189 App. Div. 62) PUBLIC SERVICE COMMISSION FOR FIRST DIST. V. BROOKLYN

BOROUGH GAS CO. (Supreme Court, Appellate Division, Second Department. October 3, 1919.) 1. JUDGMENT 543-JUDGMENT DECLARING STATUTE FIXING BATE TO BE

CHARGED FOR GAS CONFISCATORY RES JUDICATA.

Despite Public Service Commissions Law, $ 74, judgment of the New York Special Term of the Supreme Court in an action in equity by a gas company against the Public Service Commission to have declared uncon. stitutional, as confiscatory, Laws 1916, C. 604, amending Laws 1906, C. 125, to fix a maximum rate for gas of 80 cents per 1,000 feet throughout the borough of Brooklyn, which judgment, through adoption of the findings of the referee, determined that the rate of 95 cents per 1,000 feet fixed by Public Service Commission by its order of July 8, 1913, was without force, held conclusive on the Kings County Special Term of the Supreme Court in a summary proceeding taken by the Public Service Commission against the gas company to enjoin the collection of more than 95 cents per

1,000 feet for gas, the rate fixed by the commission's order of July 8, 1913. 2. JUDGMENT 715 (2)—JUDGMENT DETERMINING POWER OF PUBLIC SERVICE

COMMISSION TO FIX GAS RATE RES JUDICATA.

Judgment of the New York Special Term of the Supreme Court, in an action by a gas company to have declared unconstitutional Laws 1916, C. 604, amending Laws 1906, c. 125, to fix a maximum rate of 80 cents per 1,000 feet for gas throughout the borough of Brooklyn, and determining that the Public Service Commission, under Public Service Commissions Law, $ 72, had no authority to enforce a 95-cent rate for gas after the abrogation of the statute, held conclusive, in a summary proceeding, pursuant to Public Service Commissions Law, $ 74, as to the power of the

commission to fix a new rate of 95 cents. 3. GAS 14(1)-NOTICE TO PUBLIC SERVICE COMMISSION OF CHANGE OF RATE NECESSARY.

Where maximum rate for gas of 95 cents per 1,000 feet specified by the Public Service Commission was actually in effect, the gas company could not enforce any new rate established by it on declaration of the invalidity of the rate as fixed by the commission until 30 days after it had given notice to the commission of change of rate, as required by Public Service Commissions Law, $ 66, subd. 12, and until it had published the

same. 4. Gas 14(1)-FILING OF NOTICE OF CHANGE OF RATE, WHAT CONSTITUTES.

The order of the Public Service Commission of July 8, 1913, prohibiting a gas company charging in excess of 95 cents per 1,000 feet for gas, and the company's written acceptance of such order, constituted in effect the filing with the commission of notice of change of rate, as required by

Public Service Commissions Law, $ 66. 6. EVIDENCE 43(1)-APPELLATE COURT WILL NOT TAKE JUDICIAL NOTICE OF

FACTS OCCURRING SUBSEQUENT TO APPEAL.

In a summary proceeding by the Public Service Commission, pursuant to Public Service Commissions Law, $ 74, to enjoin a gas company from

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