Sutton agt. Newton.

prevailing party recovered the disbursements provided for by that section. Chapter 245 of the Laws of 1880, which, by subdivision 4 of section 1, also repealed the act "called the Code of Procedure" (page 369), further expressly declared by subdivision 8 of section 3 (page 375) that such repeal did "not affect the right of a prevailing party to recover the fees of referees and witnesses, and his other necessary disbursements upon the reference of a claim against a decedent, as provided in those portions of the Revised Statutes left unrepealed after this act takes effect."

In construing the act of 1880 it should be borne in mind, as has been shown, that when that act took effect, though the Code of Procedure had been in part repealed by the act of 1877, yet section 317, which 'gave the disbursements in the cases excepted out of the repealing act of 1880, was left unrepealed and in full force. When, therefore, such act (that of 1880) further repealed the same Code, but declared such repeal should "not affect the right of a prevailing party to recover the fees of referees and witnesses, and his other necessary disbursements" in a reference of a claim against a deceased person's estate under the Revised Statutes, such declaration was only another mode of providing that the part of section 317 of the Code which gave such disbursements was unaffected by the repealing act of 1880, as it was by that of 1877. Very clearly, then, so much of section 317 of the Code of Procedure as gives disbursements in a recovery against the estate of a deceased person upon a reference under the Revised Statutes is not repealed, but is in full force and effect (See Hall agt. Edmonds, 67 How., 202).

As, by agreement of the parties, the present action was "in lieu of a reference," that is to say, its substitute, it follows that the plaintiff, who was "the prevailing party," is, by the unrepealed part of section 317 of the Code of Procedure, "entitled to recover the fees of the referee and witnesses, and other necessary disbursements to be taxed according to law."

Sutton agt. Newton.

The remaining question which the motion presents, to wit: Is the plaintiff entitled to costs other than the disbursements? will now be considered. The referee, who was appointed to hear and decide the issues in the action, has, by his report dated January 8, 1885, found $621.55 due to the plaintiff from the estate which the defendant, as the administratrix thereof, represents. The claim presented was for $4,728.78, and the large reduction of the demand of the plaintiff would ordinarily, in an action brought against an executor or administrator to charge the estate he represents, prevent the recovery of costs" (See many cases cited, 2 Abbott's Digest, 357, paragraphs 180, 181, 182). In a reference under the Revised Statutes for which this action is a substitute, the rule, except as to disbursements, is the same (Robert agt. Ditmas, 7 Wend., 522; Carhart agt. Blaisdell, 18 Wend., 531; Pursell agt. Fry, 19 Hun, 595). Indeed, the Revised Statutes, in providing for the reference (3 R. S. [7th ed.], 2300, sec. 37), declare" the court may * * * adjudge costs as in actions against executors." The fact that the defendant did not, upon the presentation of the claim, offer to pay anything, gives no right to costs. This point was expressly decided in Carhart agt. Blaisdell (18 Wend., 531), just referred to.

The defendants, however, not only rejected the entire claim of the plaintiff, but set up a counter-claim against him for the sum of $2,624.55, for which sum she asked an affirmative judgment against the plaintiff, "with interest thereon from March 3, 1877, besides costs of this action." The defense then, which the defendant made to the action, was not only a resistance to the claim of the plaintiff, but also the prosecution of an independent and distinct demand against him for a large amount. If the defendant had sought to recover that sum by an action against the plaintiff and had failed, she would have been compelled to pay costs. The counter-claim set up in the answer was really an independent action against the plaintiff, and its resistance was the trial of another issue than that presented by his demand against the defendant.

Sutton agt. Newton.

As the costs incurred in the successful defense of the claim of the defendant form a very considerable part of the expenditure against which the plaintiff seeks indemnity, no good reason is seen to refuse it. It is, therefore, held that the attempt made by the defendant to recover judgment for a large and independent claim against the plaintiff, in which she entirely failed, constituted an unreasonable resistance to the demand of the plaintiff. It was a resistance of the plaintiff's claim, because, before he could obtain a report in his favor for that which was his due, the independent demand or counter-claim of the defendant had to be defeated. If the claim of the plaintiff had been reduced by allowing that of the defendant, then it could not be said that the interposition of the counter-claim was an unreasonable resistance to the demand of the plaintiff, unless the latter had, in the presentation of his claim, credited that of the estate against him. When, however, as in this case, the claim which the defendant seeks to enforce is without merit, and the plaintiff is compelled to overcome and resist it before he can obtain payment of that which is his due, then the interposition of such a claim makes an unreasonable resistance by the defendant to that of the plaintiff, and entitles the latter, when successful, to the costs of the action.

The result of my examination is, that the motion for costs to the plaintiff must be granted. Apart from the reason herein before presented for allowing disbursements, if the action in which the motion is made is not to be deemed a substitute for a statute reference, but as an action in which the rule prescribed by section 3246 of the Code of Civil Procedure applies, the motion should still prevail. The attempt by the defendant to recover through the suit brought against her a large counter-claim against the plaintiff, and its failure brings her within the cases provided for by section 1835, in which costs may be awarded to the plaintiff.

The People ex rel. Wright agt. Common Council of Buffalo.

SUPREME COURT.

THE PEOPLE ex rel. ALFRED P. WRIGHT agt. THE COMMON COUNCIL OF THE CITY OF BUFFALO.

Mandamus - Civil service— Municipal corporation - When citizen and taxpayer may apply for a writ of mandamus.

By section 2 of chapter 410 of the Laws of 1884, it is the duty of the mayor of each city to prescribe such regulations for the admission of persons into the civil service of such city; and to carry out the design and intention of the law it was provided that the mayor shall, from time to time, employ suitable persons to conduct such inquiries and make examinations; and the power to employ includes the obligation to provide for their compensation.

Where, under the charter of the city of Buffalo, the mayor made the estimate for what he considered would be the necessary expenses of carrying these provisions of the laws of the state into execution, and communicated and presented such estimate to the common council: Held, that the common council had no power to wholly reject such estimate. Although it may alter or amend the estimate, it has no authority to arbitrarily reject it. Its duty is to consider it in good faith, with sound judgment and discretion; and if any misapprehension has intervened in its amount, to correct it and apportion it to the probable necessities of the service.

A writ of mandamus is the appropriate remedy by which the common council may be required to consider the estimate and vote the amount thought necessary to carry out the law.

A citizen and a taxpayer has the power and right to apply for the writ. It is only when the application for the writ is made to secure some personal or private redress that the applicant must be shown to be interested in obtaining it before the writ can be directed to issue. Where the act omitted to be performed affects the public interests generally, and all citizens are equally concerned in securing its performance, and that has been enjoined by a law of the state, it is sufficient, to support the application, that the applicant is a citizen and entitled to insist upon the execution of the laws of the state.

Erie Special Term, April, 1885.

MOTION for a peremptory writ of mandamus to be directed to the common council of the city of Buffalo, commanding that body to consider and pass upon the estimate made by the

The People ex rel. Wright agt. Common Council of Buffalo.

mayor for salaries and expenses of executing the civil service law, so far as it has been made applicable to the city of Buffalo.

Ansley Wilcox, E. C. Sprague and Sherman S. Rogers, for applicant.

Herman Hennig, city attorney, for common council.

DANIELS, J. The mayor of the city, in submitting to the common council the estimates for his department, included the sum of $1,250 for salaries and expenses of executing the civil service law. This item was considered by the common council at its regular meeting held on the 6th day of April, 1885, when, by its action as a committee of the whole, it was stricken out of the estimate; and it has been stated in one of the affidavits on which the application has been made, that the common council in its action was controlled by the determination to make no provision for salaries and expenses of executing the civil service laws, and designed thereby to nullify and prevent their execution. This has not been denied, and the action taken by that body, or its members tends to either sustain this conclusion, or that the common. council are acting under a misapprehension concerning their duties and obligations under the law. And it is to correct their action in this respect that the writ of mandamus has been applied for, directing the common council to consider and sustain the estimate so far as it was made by the mayor or may be required for the execution of the provisions of the law relating to the city of Buffalo.

The application has been resisted on the ground that the action which was taken was not that of the common council, but of its committee; but an answer to the objection is presented by the circumstance that the committee of the whole, by which the action was taken, was made up of the members of the common council, and in their action they officiated as the common council of the city. Their powers and duties in