interest from the time they should have paid the same. Supervisors v. Clarke, 25 Hun, 282. But where such duty is not well-defined, and where the officer has acted in good faith, and without fault on his part has parted with the moneys, and they have neither actually nor constructively earned any increase, we think interest should not be imposed.

There should besides be made another substantial deduction, namely, $1,999.11, being the sum in excess of the amount claimed in the petition, and in excess of any moneys for which the defendant could properly be held accountable under the facts as disclosed under the amended answer. The sum demanded in the petition was $427.69. The sum allowed is $2,426.85, as stated in the final order. This additional sum of $1,999.11 is made up of taxes collected from the railroads for town purposes, and which were received and applied by the town officers of such town exclusively to town purposes about four years before the decision of the court of appeals in this action. It stands, as conceded in the case, that the town taxes of the year 1881, to the amount of $24,781.89, were received by the town officers of the town of Sodus to whom they were directed to be paid. The town received from the railroad companies $2,018,45, which sum was used by the town for its own town purposes.

The county of Wayne ought not to be held liable beyond the amount of money which it has actually received or appropriated. All moneys to pay charges of the town, and which were, in fact, turned over by the collector to the supervisor, overseer of the poor and railroad commissioners of the town, ought not to form a basis of recovery in this action; if the town has received back this money which the railroad companies have paid it cannot complain of the board of supervisors for not putting it into the sinking fund.

The following computation will show the amount and proportion of taxes by the railroads for exclusively town uses, and which the town has actually had and used, and which never, in fact, came into the county treasury. The figures in the official schedule of taxes of 1881 appear on page 195 of the proceedings of the board of supervisors, and are printed in the case. These show the specific purpose for which the taxes, including those received from the railroads, were expressly levied and appropriated.

Total amount levied upon the town of Sodus, $33,636.97, made up as follows:

This town tax of $26,092.36, which the town has already received, was made up of the following items and charges:

It is established that of the total $33,636.97 of the taxes, collected by the collector of the town, there have been paid to the town officers, for the use of the town, the following sums:

To supervisors, contingent fund ...
To highway commissioners..

To re-assessed on town....
To town railroad commissioners

Total....

$2,545 70 250 00

6 92

21,986 19

$24,788 81

To this should be added the sum of $816.35, for supervisors audits of charges against the town, audited by the board of supervisors, instead of the town board, and the sum of $487.20 to reimburse the county poor fund, being the debt of the town of Sodus for the care of its town poor. These last two items came into the county treasurer's hands by the warrant of the board, but were paid out by him for the benefit of the town, and they, added to the foregoing $24,788.81, make up the total of the town tax as above $26,092.36.

The proportion of the taxes levied upon the town for all purposes, to those levied upon the town for its own use, is the proportion of the total taxes paid by the railroads to the part thereof paid for town purposes. By computation it shows, that out of the $2,602.09 paid by the two railroads as taxes levied in 1881, the town received, (not the county), and applied to its own use the sum of $2,018.45. These taxes should be deducted from the sum for which the defendant is held liable by the final order appealed from. The county judge, however, has allowed $19.34 thereof, paid by the railroads as road taxes; so that the actual deduction should be $1,999.11. Deducting this amount from the $2,426.85 there remained the sum of $427.74, for which the defendant is liable, being five cents more than is demanded in the petition. This slight discrepancy arises from the fact that the petitioner has given the county credit, as the sum received from the railroad companies, for $2,018.50 when it should have been $2,018.45.

We know of no reason why the foregoing basis of computation and principle of liability should not apply to this petitioner. It is true that the respondent is not the town of Sodus, but only one of its inhabitants and taxpayers. His right, however, to bring this action is derived from the fact that under certain circumstances a taxpayer is permitted to place himself in the place and stead

of the municipal body, and claim for such municipality a restoration of its funds. He represents and speaks for the town. But his rights cannot be greater than those of the town. The town, having received and used for proper town purposes the moneys which ought to have gone into the sinking fund, should be deemed estopped to claim a repayment of such moneys, either directly or indirectly.

In Strough v. Supervisors of Jefferson Co., 50 Hun, 54; 23 N. Y. State Rep., 940, affirmed in 28 N. Y. State Rep., 967; and in Wood v. Supervisors, 50 Hun, 1; 18 N. Y. State Rep., 671 (not affected in this respect by the decision of the court of appeals), no claim or recovery was had except for the county and state taxes. In Hill v. Sheldon, 28 N. Y. State Rep., 885, decided by this court, the county judge refused to find that the taxes raised for town purposes were all expended by the town itself for its own. purposes; and the case itself was not clear and specific on that question; while in the case now before us the fact stands undisputed that the town of Sodus has had the benefit of all such moneys. In the Hill case the petitioner asked that such moneys as well as the county and state taxes be turned into the sinking fund, while in this case the claim was made for the state and county taxes only.

The final order of the county judge should be modified in the particulars mentioned, and, as so modified, affirmed, but without costs of either party on this appeal.

CORLETT, J., concurs in result; DWIGHT, P. J., not voting.

CHARLES H. B. PERKINS, Adm'r, Resp't, v. THE BUFFALO, ROCHESTER & PITTSBURGH R. R. Co., App'lt.

(Supreme Court, General Term, Fifth Department, Filed June 19, 1890.) NEGLIGENCE-RAILROAD CROSSINGS.

Plaintiff's intestate while driving across defendant's railroad received injuries from a locomotive which caused his death. There were obstructions to the vision in the direction from which the locomotive came, and defendant's agents had left a box car projecting into the highway and near its center. There was evidence tending to show that statutory signals were not given. It was also shown that as deceased was passing the car he rose up to ascertain if any train were coming, and the engineer testified that he did not see the horse until it emerged from behind the car. Held, that the evidence justified the finding of negligence on the part of defendant, and that deceased exercised proper care for his own safety.

APPEAL from a judgment of $3,000 in favor of the plaintiff, entered upon the verdict of a jury at the September term of the Wyoming circuit, 1889, and from an order denying the defendant's motion for a new trial made upon the minutes of the court. H. G. Danforth, for app'lt; M. E. & E. M. Bartlett, for resp't.

MACOMBER, J.-The injuries to plaintiff's intestate, Chauncey H. Perkins, to recover damages for which this action is brought, were received by the intestate on the 21st day of February, 1889, at a railroad crossing in Middlebury, and resulted in the death of

N. Y. STATE REP., VOL. XXXII.

6

the injured man shortly after the accident. The deceased was a man nearly seventy-one years of age. He was driving one horse attached to a sleigh. He sought to cross the defendant's track upon the highway which runs at a right angle across the railway property. The locomotive, with which the horse collided, was approaching from the south. The deceased was upon the west side of the railroad. From the highway approaching the railway tracks were obstructions to the sight, consisting, first, of an ice house and near by a coal shed, and directly east of that a restaurant or hotel. The defendant's agents had projected into the highway a box car and left the same standing there so near to the center of the highway as that it might be touched by a person passing along the beaten track. The deceased was obliged to pass this car, and, until he had done so, there was a serious obstruction to the view to his right. The engineer testified that he, although looking, did not see the horse until just as he was passing the hotel, when the horse's head emerged from behind the

car.

The evidence to charge the defendant's employees with the omission to ring the bell or sound the whistle was such as to justify the jury in their conclusion upon that part of the case. Witnesses whose attention was called to the matter testify that, though observing the locomotive, none of the signals were given.

In respect to the other branch of the case, namely, the proof that the deceased was not guilty of any negligence which contributed to the commission of the injuries is mainly circumstantial, though not wholly. One witness testified that as the deceased was passing the car, he "rose up in the sleigh apparently for the purpose of ascertaining if any locomotive was approaching." It is true that the ears of the deceased were somewhat muffled, but the muffling did not appear to prevent his hearing ordinary conversation, for but a moment previous to the accident he had been conversing with an acquaintance upon matters of business. On the whole we think the jury was justified in reaching the conclusion that he exercised proper care for his own safety in approaching this crossing. A perusal of the testimony, and an examination of the map, leaves a very strong impression upon the mind that the obstruction to the highway by the presence there of a freight car was the approximate cause of the collision between the locomotive and the horse of the deceased.

Judgment and order appealed from should be affirmed.
DWIGHT, P. J., and CORLETT, J., concur.

WILLIAM ROBINSON, Ex'r, Resp't, v. DEWITT C. BROWER, App'lt.

(Supreme Court, General Term, Fifth Department, Filed June 19, 1890.)

1. MORTGAGE-CONSTRUCTION OF.

A mortgage given by defendant and wife to plaintiff's testator, was conditioned for the payment of the sum secured in six instalments. It also provided that in case the mortgagee should die, the balance unpaid should fall due in one and two years after his death in equal shares, the first half to be paid to his son, and the other to his daughter, defendant's

wife. Held, that this clause of the mortgage was intended to provide for the death of the mortgagee at a time when some part of such balance had not fallen due according to the condition of the mortgage itself, and that the death of the mortgagee after all the instalments fell due did not divest his executor of interest in or right of action on the mortgage. 2. SAME-FORECLOSURE-PARTIES.

The mortgagee died seven years after the last instalment fell due, and three years after his daughter. Held, that his executor was the only person who could maintain an action of foreclosure.

APPEAL from a judgment entered on the findings and decision of the court at special term.

W. A. Sutherland, for app'lt; J. M. Dinninny, for resp't.

DWIGHT, P. J.-The action was for the foreclosure of a mortgage executed in 1871 by the defendant and his wife, Catherine E. Brower, to the plaintiff's testator, Aaron Robinson, to secure a portion of the purchase money of a farm conveyed by the latter to the parties first mentioned, of whom Mrs. Brower was his daughter.

It was conditioned for the payment of the sum secured, in six equal annual installments, the first of which was to fall due in six years from date. It was in the usual form, including a power of sale to the mortgagee, his executors, administrators and assigns, with the addition of the following clause:

"But it is understood that in case said Aaron Robinson should die, all unpaid balance of said amount to fall due one-half in one year and the other half in two years from the death of the said Aaron Robinson, whatsoever written to the contrary notwithstanding, and the half first paid as last mentioned to be paid to William Robinson, son of said Aaron Robinson, and the balance to the said Catherine E. Brower."

Aaron Robinson, the mortgagee, died in 1889, nearly seven years after the last payment on the mortgage became due and three years after the death of Mrs. Brower.

The only objections to the judgment are that the plaintiff, under the clause of the mortgage above quoted, had no interest in or right of action upon the mortgage, but that, the mortgagee having died, the money remaining unpaid on the mortgage became payable to the son Willard and the executor of the deceased daugh ter, Mrs. Brower, and that they were the proper parties to maintain the action.

There seem to be two quite conclusive answers to these propositions. The first is, that they involve a manifestly erroneous construction of the clause in question. Its true construction apparently is that the death of the mortgagee, upon which event the falling due of any unpaid balance of the amount secured by the mortgage should depend, must be at a time when some part of such balance had not yet fallen due according to the condition of the mortgage itself.

The second answer is, that even if the construction contended for were correct, an action for the foreclosure of the mortgage could only be maintained by the plaintiff as executor of the mortgagee. The mortgage had never been assigned; it was the