ceeding to advertise and sell. The judgment is a lien upon the land, and the execution comes as a power to enable the creditor to reap the fruits of the seizure already made by the docketing of the judgment. Wood v. Colvin, 5 Hill, 230; Colt v. Phoenix Ins. Co., 54 N. Y. 595. A levy is therefore not necessary to authorize the sheriff to proceed to advertise and sell real estate; but does it follow that he is entitled to collect poundage within the meaning of the statute aforesaid without an actual levy? I think not. His right is conditioned in words upon a previous levy, and such levy, though unusual and unnecessary for the valid execution of the writ, must be made, or steps equivalent to a levy taken, before a plaintiff can be virtually penalized through the vacation of the execution. The lodgment of the execution with the sheriff is not a levy. If it were so, it would be a levy as well upon real estate actually owned by a defendant, but of which the sheriff had absolutely no knowledge; and if no property of said defendant came to the knowledge of the sheriff out of which to satisfy the writ, on the return of such execution necessarily nulla bona, the sheriff would actually return a writ unexecuted under which a levy existed, whether the sheriff knew it or not.

Assuming, however, that the sheriff would be entitled to poundage without actual levy or other steps to enforce the execution, I am of the opinion that the proof herein is insufficient to show the value of the interest, if any, of the defendant Fleming in the real property referred to. The possible ownership of such property by Fleming was not discovered until April 20, 1909, after the execution had been stayed. While the consideration expressed in the deed may have been $12,000, the property may have been subject to a mortgage for almost that amount, the title of Fleming may have been worthless, or for many other reasons his interest in the property may have been worth much less than the amount of the execution. I think the burden is upon the sheriff, not only to allege, but absolutely prove, its value in this application.

Motion denied. No costs. Settle order on notice.

(65 Misc. Rep. 73.)

In re GRADE CROSSING COM'RS OF CITY OF BUFFALO.

(Supreme Court, Special Term, Erie County. October, 1909.)

ESTOPPEL (§ 92*)-EQUITABLE ESTOPPEL-STIPULATION.

While L. and R. owned four lots, on three of which were mortgages given by B. and owned by J., title to the fourth lot was acquired by a city in condemnation proceedings, in which the award was, on stipulation of the attorneys of L. and R., owing to an abstract erroneously showing such lot covered by the mortgages, paid to J., who applied it all to reduction of the mortgages, satisfying one of them of record. Held, that L. and B. were estopped to take any steps to compel the award to be paid to them by J., having had the benefit of it, and offered no suggestion for restoring to J. the security formerly held by her.

[Ed. Note. For other cases, see Estoppel, Cent. Dig. §§ 260-263; Dec. Dig. § 92.*]

In the matter of the application of the Grade Crossing Commissioners of the City of Buffalo for the appraisal, etc., of lands to be taken for grade crossing improvements, etc., and claimed to be owned by the New York Central & Hudson River Railroad Company and others. The commissioners move for return of report to the appraisal commission, to have an alleged mistake relative to parcel No. 3 corrected. Motion denied.

Spencer Clinton, for the motion.

Simon Fleischmann, opposed.

BROWN, J. By report of the appraisal commission January 27, 1909, an award of $1,350 was made for taking a strip of land 50 feet wide and about 300 feet long, known as "Central Avenue," extended for the purposes of grade crossing improvement at the Bailey avenue crossing of the New York Central & Hudson River Railroad in the city of Buffalo. This sum was directed to be paid to the executors of Jane A. Baker, deceased, as mortgagee, and to Thomas B. Lockwood and Elizabeth B. Rumsey, owners, nothing was awarded. On February 10, 1909, this report was duly confirmed, and shortly thereafter such award was paid as provided in the report. In these proceedings relative to such lands, Thomas B. Lockwood and Elizabeth B. Rumsey appeared by Robert C. Palmer, Esq., an attorney and counselor at law, who, acting for his clients, stipulated that the award might be made to the above-mentioned mortgagees, and in pursuance of such stipulation such award was directed to be paid.

It appears that the attorney for the grade crossing commissioners, preliminary to instituting these proceedings, procured from a title searching company an abstract of the record title to lands known as "Central Avenue" and designated in these proceedings as "Parcel No. 3," in and by which abstract it appeared that a certain mortgage, dated June 22, 1894, executed by Emily H. Bailey to secure the payment of $5,000, was a lien upon and covered parcel No. 3, and because of such fact appearing in such abstract all of the papers and proceedings recited that the estate of Jane A. Baker, owner of such mortgage, had a lien on said parcel No. 3, and the attorney who appeared for the said owners of such parcel relied thereon when he stipulated that such award be made payable to the executors of Jane A. Baker.

It now appears that such abstract was incorrect; that in fact such mortgage did not cover parcel No. 3, but described lands to the east and west thereof known as "Parcels C and D," shown on Exhibit No. 1 attached to the answering affidavits used on this motion. Because of such error the attorney for the grade crossing commissioners makes this application for an order referring and sending back to the appraisal commissioners the said report, with the direction that they take further evidence as to the ownership of parcel No. 3, and report to this court whether such mortgage covers parcel No. 3, and for such further order as may be just.

In view of the fact that it is conceded by all parties upon this hearing and interested in the premises that said mortgage does not in fact cover said parcel No. 3, and that Thomas B. Lockwood and Eliza

beth B. Rumsey were the sole owners thereof, it is unnecessary to take any further evidence to establish that fact.

The executors of the estate of Jane A. Baker oppose this motion, and allege that Thomas B. Lockwood and Elizabeth B. Rumsey are estopped from making any claim to the said award by reason of the facts hereinafter appearing. It is very evident that this motion is made for and on behalf of Thomas B. Lockwood and Elizabeth B. Rumsey. The city of Buffalo can have no further interest in the disposition of the award, or whether it has been paid to the correct parties; for all concede that all persons having an interest in the award, or lands, are parties to these proceedings, and the city's title to the lands taken cannot be questioned by any party to this proceeding. The question presented by the motion is thus simplified, as being a contention between the former owners of parcel 3 and the executors of Jane A. Baker as to the proper application of the sum awarded as damages for injury to the fee of Central avenue.

It appears that on July 13, 1900, Emily H. Bailey executed a mortgage on parcels A, B, and C, shown on Exhibit No. 1, to secure the payment of $3,000. It also appears that on January 28, 1907, Emily H. Bailey conveyed to Thomas B Lockwood and Elizabeth B. Rumsey parcels A, B, and C, and also Central avenue, shown on said exhibit. It is thus seen that at the time of the conveyance by Emily H. Bailey to Thomas B. Lockwood and Elizabeth B. Rumsey the lands conveyed, excepting Central avenue, were incumbered by mortgages aggregating $8,000, one dated June 22, 1894, for $5,000, and one of $3,000, dated July 13, 1900. Upon the payment of the $1,350 awarded for the fee of Central avenue to the executors of Jane A. Baker, such executors applied $668.66 upon the $5,000 mortgage, which sum, with other moneys then paid, satisfied and discharged the same; and such executors executed and delivered to Emily H. Bailey, the grantor of said Lockwood and Rumsey, a satisfaction piece of such mortgage, placed the same on record in Erie county clerk's office, the lands of said Lockwood and Rumsey were freed from such incumbrance, and they had the full benefit of such payment.

The balance of said award, namely, $681.34, was used by such executors by applying the whole thereof upon the $3,000 mortgage, reducing the moneys due thereon, and discharging the lands of said Lockwood and Rumsey from such incumbrance to the extent of such sum of $681.34. It is thus seen that Thomas B. Lockwood and Elizabeth B. Rumsey have in fact received the full benefit of the award of $1,350. Their lands have been discharged from incumbrances to its full amount. These moneys were received by the executors of Jane A. Baker and thus applied by them for the benefit of said Lockwood and Rumsey, relying upon the terms of the award made in pursuance of the stipulation entered into by the attorneys who appeared for said Lockwood and Rumsey in these proceedings. In view of the fact that Emily H. Bailey now refuses to secure in any way to the executors of Jane A. Baker the payment of the sum of $1,350, it is difficult to see how such executors could be restored to their former security in the

pay to Thomas B. Lockwood and Elizabeth B. Rumsey said sum of $1,350.

To say that said executors could resort to litigation to compel Emily H. Bailey to reinstate the discharged mortgage, or execute some paper increasing the amount unpaid on the $3,000 mortgage, is a confession that such executors have actually been injured by reason of the acts of Thomas B. Lockwood and Elizabeth B. Rumsey, through their attorney, in stipulating for the payment of such award to such executors and the application of such moneys, relying upon such judgment or award, in satisfaction of mortgages held by them. It will not do to say that such executors must submit to the exigencies or hazard of litigation to protect themselves, especially when it is so clear that the moneys received by them have exclusively been used for the benefit of said Lockwood and Rumsey. They are estopped from taking steps to compel the amount of this award to be paid to them by the executors of Jane A. Baker for two reasons: They have had the benefit of such award. They offered no suggestion that tends to restore to such executors the security formerly held by them.

Motion denied.

(65 Misc. Rep. 100.)

CONLEY v. CITY OF BUFFALO.

(Supreme Court, Special Term, Erie County. October, 1909.)

1. LICENSES (§ 34*)—VOLUNTARY PAYMENT-Duress.

A policeman called on plaintiff at his dancing school, requested to see his city license, and, on being informed that he had none, told plaintiff to go to the mayor's office and procure a license, for which he paid $25. Plaintiff was not told that he must stop running the school, or he would be arrested, unless he procured a license; nor was anything said as to the consequences of his failure to obtain it. Held, that the payment was not the result of duress, but was voluntary, and therefore not recoverable, even though the requirement was invalid.

[Ed. Note.-For other cases, see Licenses, Cent. Dig. 8 68; Dec. Dig. § 34.*]

2. LICENSES (§ 6*)—AMUSEMENTS-DANCING SCHOOLS-REGULATION.

Where a city was authorized to enact any ordinance deemed expedient! for the city's good government and the preservation of peace and good order, the suppression of vice, and preservation of health, an ordinance regulating public dancing schools, and requiring a license for the operation thereof, was authorized.

[Ed. Note. For other cases, see Licenses, Cent. Dig. §§ 5, 6; Dec. Dig. 6.*]

Appeal from Municipal Court of Buffalo.

Action by Stephen F. Conley against the City of Buffalo. From a Municipal Court judgment for plaintiff, defendant appeals. Reversed.

Louis Desbecker (Frederic C. Rupp, of counsel), for appellant. Kenefick, Cooke & Mitchell (Guy Wellman, of counsel), for respondent.

*For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

BROWN, J. In 1906 one of defendant's policemen called on plaintiff at his dancing school and asked to see his license. Plaintiff stated that he did not have a license. The policeman told plaintiff to go to the mayor's office and get one; that he (plaintiff) must have a license to run a dancing school. Plaintiff went to the mayor's office, procured the license, and paid $25 for it. In 1907 these conversations were repeated, and a second license was procured by payment of a like sum. It is now urged that the city ordinance requiring such a license is void, and that consequently such payments were made under compulsion, to prevent interference with, or destruction of, plaintiff's business, and injury to his property rights.

In every case to which attention has been called wherein it is held that payments were made under circumstances permitting a recovery and constituting duress, the payor was under arrest, or threatened with arrest, or his property taken from his possession, or he was threatened with physical interference with his person or property, or an injury to property rights, and made the payment against his will, in order to escape some injury immediately to be apprehended. It is observed that plaintiff was not told that he must stop running the dancing school or he would be arrested-not a word about stopping the school; not a word about interfering with the school; not a word about the arrest of the plaintiff; not a word as to consequences of failing to obtain a license; no interference with the running of the school; no interference with the liberty of the plaintiff. The claim, duress, has no foundation whatever in what the policeman actually said to the plaintiff, but rests upon the claimed inferences that what was said implied the threat that unless a license was obtained heavy penalties provided in the ordinance would be incurred, or that some steps would be taken to prevent the running of the school. It is clear that there can be no claim made that the payments were made by any coercion in fact.

In Wolff v. New York, 92 App. Div. 449, 87 N. Y. Supp. 214, the policeman said to plaintiff, that unless he produced a permit authorizing the work, he (plaintiff) would be arrested. The permit cost $229.50. The justice writing for the Appellate Division, commenting on these facts, says:

"The plaintiff was not told that he must pay $229.50, or he would be arrested."

It is quite likely that if the plaintiff had not voluntarily paid the license fees, and defendant had taken steps to compel such payments against the will of the plaintiff, then there would have been facts constituting duress or compulsion; but to take out a license on the mere statement that one must be had seems to be such a voluntary payment as to preclude a recovery, assuming that the ordinance is void.

It is difficult to understand the theory upon which the trial court reached the conclusion that the ordinance is void. The Legislature authorized the common council of the defendant to enact any ordinance as "shall be deemed expedient for the good government of the city,