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ing the sale and permitting the trustees to resign, which they did; and the defendant Symonds was appointed substituted trustee of this fund.

It is well settled, as a general proposition, that the decree of the Surrogate's Court is conclusive on all the parties to the proceeding. Matter of Denton v. Sanford, 103 N. Y. 607, 9 N. E. 490; Weintraub v. Siegel, 133 App. Div. 677, 680, 118 N. Y. Supp. 261. And it is also true that, where two courts possess concurrent jurisdiction, the one first entertaining the action or proceeding retains authority over it. The rule is not an inflexible one in its application to Surrogate's Court, which is of limited power. Matter of Schnabel, 202 N. Y. 134,95 N. E. 698. And if there are special circumstances calling for the intervention of a court of equity, it will assume jurisdiction, in order that its broader powers may be exercised to adjust the rights of the parties. Douglass v. Ferris et al., 138 N. Y. 192, 33 N. E. 1041, 34 Am. St. Rep. 435; Douglass v. Low, 36 Hun, 497; Dobson v. Pearce, 12 N. Y. 156, 62 Am. Dec. 152; Sanders v. Soutter, 126 N. Y. 193, 27 N. E. 263.

In Leet v. Leet, 12 App. Div. 11, 15, 42 N. Y. Supp. 174, 176, which was in effect an action to set aside a decree of the Surrogate's Court, the rule was thus stated :

“Unquestionably the relief thus souglit was attainable by the plaintiff in a court of equity, provided he was able to sustain his allegations by compe tent proof, for it is well established by abundant authority that where a judgment or decree is obtained either by imposition upon the court which grants it, or by reason of any fraud or deceit practised by the party who obtains it, the same will be declared null and void in a proper action brought for that purpose."

There was no trial in the Surrogate's Court on the judicial settlement. Of their own volition the accounting parties gave proof showing the sale to John H. Costello, and that the property was sold at its fair value, but the opinion was founded on the inventory and former decree. The trustees suppressed, or omitted to disclose, the transactions as they occurred. They practiced an imposition on the court, and may have misled or deceived the special guardian. Their good faith is impugned, and these questions are peculiarly within the province of a court of equity when the conduct of the trustees is up for review.

Again, John H. Costello is a party defendant, and the complaint seeks to set aside the sale to him. That is the gist of the action. The decree of the Surrogate's Court would be ineffective against him. It would only be operative against the trustees, as the fund had been segregated and transferred to them in pursuance of the decree of 1892, so that they held it independent of any authority which the executors originally had over it. John H. Costello never acted even as executor, and did not join in either accounting. If the decree were opened, and a trial had in the Surrogate's Court, and the trustees compelled to account for the amount received for the stock delivered to John H., representing the trust estate, an action might still be necessary in order to adjust the rights of the parties. The trustees never had these shares of stock. Their liability, if any, is because of their fraud or mismanagement of the trust estate. John H. may have been privy to all these

transactions; but his liability, if any, is on other grounds, and a judgment against him may be essential, if plaintiff maintains his action.

I think, therefore, the plaintiff is not precluded by the decree of the Surrogate's Court, and his remedy is not confined to an application to open that decree; but the present action is well laid.

The judgment should be reversed.

(76 Misc. Rep. 569.)

LARSEN V. CITY OF NEW YORK. (Supreme Court, Appellate Term, Second Department. May, 1912.) LANDLORD AND TENANT (8 186*)-HOLDING OVER-LIABILITY FOR RENT.

Where a municipal corporation, after the expiration of the lease of certain premises used as a corporation yard, continued in possession, it was liable for rent, in the absence of an allegation and proof of eviction; and this, though the city's possession of a portion of the premises was somewhat interfered with,

[Ed. Note.—For other cases, see Landlord and Tenant, Cent. Dig. $8 755–762; Dec. Dig. 186.*] Appeal from Trial Term, Kings County.

Action by Magnus Larsen against the City of New York to recover rent for premises occupied as a corporation yard in Long Island City. Defendant denied occupancy, and claimed surrender before the expiration of the lease; plaintiff's cause of action being for rent accruing from October, 1906, to October, 1907. From a judgment for plaintiff for $500, the City appeals. Affirmed.

Argued before KELLY, JAYCOX, and CLARK, JJ.
Archibald R. Watson, Corp. Counsel, for appellant.
John B. Merrill, for respondent.

PER CURIAM. The question whether the city surrendered the premises prior to October 1, 1906, was a question of fact. The plaintiff testified that the city continued in occupancy during the entire year, from October 1, 1906, to October 1, 1907, and he was corroborated by Mr. Lucien Knapp, who was superintendent of the street-cleaning department at the time. The premises in question were used as a corporation yard, and were under the control of Mr. Knapp. The finding of the justice that the city held over appears to have support in this testimony, and, indeed, the city's testimony to show surrender is not at all definite or convincing.

As to the claim of the city that the plaintiff accepted surrender by Leasing stalls in a building on part of the property to the American Express Company prior to October, 1906, the evidence does not bear out this claim. It shows, an immaterial change in the boundaries of the demised premises, by which the city occupied a much larger area of vacant ground—which was what was required for the purposes of a corporation yard-and the plaintiff used in exchange the part of the barn or building in which he leased the stalls. This was by arrangement with the city authorities, and was an immaterial *For other cases see same topic & $ NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

and insignificant change. The reference to lot numbers on a map in this locality in Long Island City is not of great moment. At any rate, the city does not allege, and has not proved, an eviction. The city could not go on occupying the premises and refuse to pay rent because its possession of a portion thereof was interfered with. Vernon v. Smith, 15 N. Y. 327; Smith v. Barker, 112 App. Div. 187, 98 N. Y. Supp. 365; Austin v. Strong, 47 N. Y. 680; Boreel v. Lawton, 90 N. Y. 293, 43 Am. Rep. 170. The judgment should be affirmed, with costs. Judgment affirmed, with costs.



(Supreme Court, Appellate Term, Second Department. May, 1912.) 1. ELECTRICITY (8 11*)—DUTY TO SUPPLY CURRENT-ACTION FOB PENALTYWRITTEN DEMAND.

In an action to recover a penalty, imposed by Transportation Corporations Law (Consol. Laws 1909, c. 63) $ 62, for an electric company's failure to supply current for lighting purposes, plaintiff must prove a written application to defendant to furnish electricity to his premises.

[Ed. Note.-For other cases, see Electricity, Dec. Dig. $ 11.*] 2. ELECTRICITY (8 11*) — CURRENT — FAILURE TO FURNISH-PENALTIES–SEPARATE CAUSES OF ACTION.

In an action to recover a penalty against an electric company for fail. ure to furnish current, each day's default after the first 10 days subsequent to written demand for current is complete in itself, and the consequences of default do not add to or detract from the cause of action.

[Ed. Note.-For other cases, see Electricity, Dec. Dig. § 11.*] 3. ELECTRICITY (8 11*)--CURRENT--FAILURE TO FURNISH-ACTION FOR PEN

In an action to recover a penalty for an electric company's failure to furnish current under Transportation Corporations Law (Consol. Laws 1909, c. 63) $ 62, allowing 10 days to install connections after demand, defendant's liability does not arise until the expiration of the 10 days after demand, so that plaintiff's right to recover is limited to the amount which accrued subsequent thereto and prior to the commencement of the action.

[Ed. Note.-For other cases, see Electricity, Dec. Dig. $ 11.*] Appeal from Municipal Court, Borough of Brooklyn, First District.

Action by Benny Reiser against the Edison Electric Illuminating Company of Brooklyn. From a judgment for plaintiff, defendant appeals. Reversed, and new trial granted.

See, also, 147' App. Div. 908, 131 N. Y. Supp. 1140.
Argued before KELLY, JAYCOX, and CLARK, JJ.

Parker, Hatch & Sheehan (Samuel F. Moran, on the brief), for appellant.

Nathan D. Shapiro, for respondent.

JAYCOX, J. The action is to recover for penalties which plaintiff claims accrued to him by reason of the defendant's failure or refusal *For other cases see same topic & $ NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

137 N.Y.S.-10

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to furnish electricity for lights. The supply of electricity was discontinued February 6, 1911. The action was begun by the issuance of the summons February 17, 1911, issue was joined March 6, 1911, and the action was first tried May 22, 1911. The complaint then claimed penalties amounting to $150, and also asked judgment for a deposit of $40. As a result of that trial plaintiff had judgment for the $40 deposit, and recovered nothing for the penalties sued for. This judgment was subsequently set aside by the Municipal Court, and in the order setting aside said judgment plaintiff was permitted to amend his complaint, so as to demand judgment for penalties amounting to $500, the full amount of the court's jurisdiction, and for this amount plaintiff has judgment.

The statute under which plaintiff proceeds (Transp. Corp. Law (Laws 1909, art. 7, c. 219] § 62) provides as follows:

“Upon the application in writing of the owner or occupant of any building or premises within one hundred feet of any main laid down by any gas light corporation or the wires of any electric light corporation, and payment by him of all money due from him to the corporation, the corporation shall supply gas or electric light as may be required for lighting such buildings or premises

and if for the space of ten days after such application and the deposit of a reasonable sum as provided in the next section, if re. quired, the corporation shall refuse or neglect to supply gas or electric light as required, such corporation shall forfeit and pay to the applicant the sum of ten dollars and the further sum of five dollars for every day thereafter during which such refusal or neglect shall continue."

[1] The appellant contends that the plaintiff did not prove that the plaintiff had made application in writing. This was essential in order to permit a recovery. Shelley v. Westchester Lighting Co., 119 App. Div. 61, 103 N. Y. Supp. 951. The proof shows that the defendant, or plaintiff at defendant's request, produced an application, dated May 6, 1910, for electric service at 122 Greenpoint avenue. The plaintiff's premises are 122 Greenpoint avenue. The plaintiff denied that he signed the application. It was then marked as an exhibit for identification. Plaintiff then read in evidence a paragraph from defendant's answer, which reads as follows:

“That on or about May 6, 1910, application was made to defendant to furnish electric current for use at premises 122 Greenpoint avenue, borough of Brooklyn, city of New York; that such application was in writing, signed 'Benny Reiser'; that defendant furnished electric current to said premises 122 Greenpoint avenue until on or about the 6th day of February, 1911."

This was all plaintiff's proof as to an application in writing. Defendant's proof showed that the application produced was the only application ever made to the defendant for those premises. Defendant put the application in evidence. Defendant's clerk testified that he did not see plaintiff sign the application. The plaintiff failed to prove that he had made application in writing, as required by the statute. The portion of the answer offered merely shows that an application in writing, signed “Benny Reiser,” had been made to defendant; but it does not allege that the plaintiff signed that application, and the plaintiff denies that he signed it. The result is that the plaintiff proves conclusively that the only application the defendant has is not the

plaintiff's. The portion of the answer offered in evidence does fix the identity of the signer of the application as the plaintiff. It is true that in another part of the answer defendant alleges upon information and belief that plaintiff signed this application and another one. Plaintiff did not read this allegation in evidence, and as a pleading it is no admission against defendant, because connected with this fact other facts were pleaded which constituted a complete defense, so it was merely a declaration or admission subject to explanation. Young v. Katz, 22 App. Div. 542-546, 48 N. Y. Supp. 187; Whitney v. Town of Ticonderoga, 53 Hun, 214, 6 N. Y. Supp. 844, affirmed 127 N. Y. 40, 27 N. E. 403; Shrady v. Shrady, 42 App. Div. 9, 58 N. Y. Supp. 546; Gildersleeve v. Landon, 73 N. Y. 609; Goodyear v. De La Vergne, 10 Hun, 537; De Waltoff v. Third Avenue R. R. Co.

, 75 App. Div. 351, 78 N. Y. Supp. 132. In any event the plaintiff should have been limited in his recovery to the amount which accrued prior to the commencement of the action.

Counsel for plaintiff, in the discussion of the question, seems to entirely misapprehend the nature of the penalty. He discusses it all the time as a question of damage. Damage has nothing to do with the question. Plaintiff may not have been damaged at all, and still, if he shows the violation of the statute by the defendant, be entitled to recover a penalty. If an action for damage can be found in which plaintiff has sued for one injury inflicted prior to the commencement of the action, and has been allowed to recover in addition for other injuries inflicted after the commencement of the action, then an analogy to plaintiff's claim will be found in an action for damages. In this kind of an action the cause of action does not arise until the statute is violated. At the commencement of an action for a penalty, the same as any other action, the cause of action must be complete. In an action for damages, where recovery is had for damages accruing after the commencement of the action, the wrongful act which gives the right of action is complete before the action is begun; but its consequences continue, and it is for those consequences damages are allowed.

[2] In this action each day's default is complete in itself, and the consequences of default do not add to or detract from the cause of action. While this exact question has not been presented before, I imagine because no one has before endeavored to recover for penalties accruing after the commencement, analogous questions have been decided. In Jones v. Rochester Gas & Electric Co., 168 N. Y. 65, 60 N. E. 1044, this very statute was under consideration. Jones had brought suits and recovered penalties, and he brought the suit in question to recover penalties for time which elapsed between the commencement of the first action and the resumption of service by the defendant. The court held he could not recover. In that case the court held that the bringing of the action fixed and limited the plaintiff's right to recover, and he could recover no mere until he again set the statute in operation by application in writing. The same rule applies to an action for a continuing trespass. Uline v. N. Y. C. & H. R. R. R. Co., 101 N. Y. 98, 4 N. E. 536, 54 Am. Rep. 661. In

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