defendant was justified in refusing the title offered him by the plaintiff.

The plaintiff claims that, in case it is found that the defendant is entitled to a judgment herein, he is not entitled to costs, nor to more than the sum of $75 damages, by reason of the clause in the contract limiting the defendant's damages to that sum as stipulated damages in the event of the failure of the plaintiff to pass the title "for any cause." By the terms of his contract the plaintiff had a right to cancel and declare the contract void for any reason, and in that event he was required to restore to the defendant the sum of $500, paid at the execution of the contract, and the further sum of $75, fixed and agreed upon by the parties as stipulated damages. Had the plaintiff availed himself of this right, there would be reason in claiming that his liability to the defendant should be limited to the sum fixed by the agreement as damages for his failure to convey, but such provision applied only in case the plaintiff declared the contract canceled and void. This he did not do. On the contrary, he notified the defendant of his readiness to convey, and subsequently brought suit to compel the defendant to take title, thereby asserting that the contract was valid and enforceable. After such notification the defendant caused the title to be searched, expending therefor the sum of $170.40 in fees and expenses, which sum the plaintiff concedes is reasonable in amount; and the defendant is entitled to a judgment for that amount, together with the sum of $500, the sum paid by him at the time the contract was executed, and set up in his counterclaim herein, with costs of this action.

Ordered accordingly.

(53 App. Div. 389.)

SAFFEN v. CITY OF NEW YORK.

(Supreme Court, Appellate Division, Second Department. July 17, 1900.) CLERKS OF COURTS-REFILING COURT DOCUMENTS-COMPENSATION.

Laws 1895, c. 739, authorizes the clerk of Kings county to rearrange the files of court proceedings, and to receive the same fee for each paper refiled as he is entitled to for filing a like paper, and that for such work he shall be allowed reasonable compensation, all of which shall be a county charge, audited and paid as other charges. Held, that this statute intended the expense of such work to be met by the fees received, and, if they were insufficient, any actual additional expense, together with the clerk's reasonable compensation, would be allowed him, and the clerk was not entitled to have the expenses of such work paid by the county, and to receive the fees as his personal compensation.

Appeal from special term, Kings county.

Action by Eliza A. Saffen, administratrix of Henry C. Saffen, deceased, against the city of New York. From a judgment in favor of plaintiff, defendant appeals. Reversed.

Argued before GOODRICH, P. J., and BARTLETT, WOODWARD, and HIRSCHBERG, JJ.

R. Percy Chittenden, for appellant.

Hugo Hirsh, for respondent.

and 100 New York State Reporter

WILLARD BARTLETT, J. I think the decision in this case is based upon a misapprehension of the purpose and effect of the act of the legislature under which the action is brought. That act is chapter 739 of the Laws of 1895. It is entitled "An act in relation to the clerk of the county of Kings." By the first section that officer is authorized "to have the various papers, documents and records relating to suits, special proceedings and indices filed in his office examined and assorted and thereupon arranged in such a manner that the same can be easily found and be readily accessible to those desirous of examining or using the same." The second section of the statute deals with two matters: First, the expenditures necessary to do the work; and, secondly, the county clerk's compensation for the services to be performed by him. "For the purpose of defraying the expense neces sary and incurred for such examination, assortment and arrangement in the first section directed," the county clerk is declared to be authorized and entitled "to receive the same fee for each paper, document and record so filed in his office pursuant to this act, as he is now legally entitled to receive for filing like papers in his office." The second section further provides that for examining, assorting, and arranging such papers, documents, and records, "the said clerk shall be entitled to and allowed such compensation as is just and reasonable; all of which shall be a county charge, and audited and paid as other such charges are allowed and paid." Under that provision of the second section which relates to the expenditures necessarily incurred in the progress of the work, the late Henry C. Saffen, as county clerk of Kings county, received from the city of Brooklyn, as filing fees, the sum of $57,778.62. The present suit is brought by his administratrix to recover his just and reasonable compensation under the second provision of the second section. The plaintiff claimed as such compensation, and has been awarded by the referee, the sum of $76,597.50, with interest from December 29, 1897. The proof showed that there were 153,195 papers examined, assorted, and arranged in the county clerk's office, as to which nothing was paid to the clerk by way of filing fees. The referee found that a just and reasonable compensation for examining, assorting, and arranging these papers, documents, and records was fifty cents apiece, and in this manner he fixed the amount for which he directed judgment.

It seems to me quite clear that the legislature, in enacting chapter 739 of the Laws of 1895, intended three things: (1) To have the papers in the county clerk's office rearranged so as to be more readily accessible; (2) to have the county reimburse the clerk for the money which he should have to expend in order to get the work done; and (3) to have the county also pay the clerk a reasonable compensation for the additional labor which the statute should impose upon him. The act was not designed to sanction a money-making enterprise for the benefit of a public officer. The public interests demanded rearrangement of the papers in the county clerk's office, but they also required that nothing should be paid, in order to effect the desired rearrangement, except the actual cost of bringing it about, and such additional sum as should fairly compensate the clerk for any increased burden of

work which he might personally have to sustain in order to carry out the mandate of the statute. The filing fees provided a fund for defraying the expenses of the work as it went on, which the legislature probably supposed would prove sufficient to cover the entire expenditure which might be required; but if those fees, in the aggregate, were insufficient for that purpose, the clerk, under a fair construction of the second section, would undoubtedly be entitled to have any additional actual expenses made good to him, besides receiving his just and reasonable compensation. If this interpretation of the act of 1895 is correct, the method of ascertaining the amount to which Mr. Saffen or his personal representative was entitled is very simple, and quite different from that which was adopted on the trial of the present action: First, the plaintiff should have proved the actual cost of the work, by showing how many persons were employed upon it or in relation to it, in whatever capacity, the nature and duration of their employment, and the amount paid to each. If the aggregate expenditure thus proven was more than the $57,778.62 paid to Mr. Saffen by way of filing fees, the plaintiff was entitled to recover the excess. If it was less, it would appear that the clerk has received all that is due on account of expenses. In regard to the matter of compensation, proof should be given as to the time and labor devoted by Mr. Saffen to the performance of his duties under the statute; and the value of the additional services performed by him should be awarded to the plaintiff, as the just and reasonable compensation provided for in the act. It was error to try the case upon the theory that the county clerk was entitled to personal compensation at so much a paper for services performed, not by himself, but by various persons employed by him to do the work, and paid out of moneys received by him from the county. The elements of cost and compensation were not kept sufficiently distinct. All the work that other persons did was to be paid for by the county through the filing fees, if they proved sufficient, or additional funds from the county treasury, if needed. Beyond this, the compensation of the county clerk was to be only for what he should do himself, by way of direction, supervision, or otherwise. He was to be paid, and his employés were to be paid, the actual, fair, and reasonable value of the work done by each. There is no evidence in this record to show what services, if any, were personally performed by Mr. Saffen in reference to the rearrangement of the papers in his office. There is, therefore, no sufficient basis for a judgment fixing the amount of the compensation to which he is entitled.

Judgment reversed, and new trial granted before a new referee, to be appointed at special term; costs to abide the event. All concur.

(31 Misc. Rep. 603.)

and 100 New York State Reporter

MURRAY v. SWEASY et al.

(Supreme Court, Special Term, New York County. May, 1900.) MORTGAGE-ABSOLUTE DEED-ACTION TO REDEEM-DISPOSSESS PROCEEDINGS -INJUNCTION.

In

Plaintiff bought a house subject to a mortgage, which he assumed, and subsequently failed to pay taxes on the property for several years. March, 1898, at the instance of S., who represented the mortgagee, plaintiff gave notes to A. for the unpaid taxes, and conveyed the premises to A., taking back a lease for a year at a rent equal to the interest on the mortgage plus taxes, insurance, and water rates. In August, 1898, on default in payment of the notes, A. brought suit on them, in which plaintiff made default. In April, 1900, plaintiff offered to pay off all liens, which S. refused, claiming title to the property. Immediately thereafter A. entered judgment in his action on the notes, and began proceedings to recover possession of the premises. Plaintiff then brought this action, and moved for an injunction against the dispossess proceedings till the determination of this action, claiming that the deed to A. was intended only as security. On the motion, S. admitted that he had given plaintiff an option to repurchase the premises till October, 1899. Held, that the dispossess proceedings should be stayed till the determination of this action, so that the question whether the deed to A. was given as security or not might be tried in the usual way.

Action by Henry Murray against J. Frederick Sweasy and others. Motion by plaintiff for an injunction to stay a proceeding by defendant against him for dispossession of real estate. Granted.

Howe & Brown, for plaintiff.

Thomas Sherman, for defendants.

ANDREWS, J. The premises No. 21 East Seventy-Third street, in this city, were purchased by the plaintiff on September 6, 1887, and have been continuously occupied by him and his family from that date to the present time. The purchase price was $45,000, and the property was subject to a mortgage of $35,000, the payment of which was assumed by the plaintiff, and which is still an incumbrance upon the property. The plaintiff failed to pay the taxes for several years, and on or about March 7, 1898, at the instance of the defendant Sterling, who represented the mortgagee, the plaintiff gave two series of notes, one of twenty and another of seven, for said arrears of taxes, payable to one J. Frederick Sweasy; and at the same time, as is claimed by the plaintiff, by the direction or at the request of said Sterling, he and his wife conveyed said premises to the defendant, said Sweasy. At the time of the execution of such deed, or soon thereafter, said Sweasy executed a lease of said premises to the plaintiff for one year; the amount of rent reserved in the lease being equal to the annual interest on the mortgage and the annual taxes on the property, the water rates, and the premium of insurance. Four of the notes were paid. The others were not paid, and on or about August 25, 1898, the plaintiff was served with a summons and complaint in an action brought by said Sweasy to collect the amount of the notes; it being provided in each of the notes that, in case there was a failure to pay any particular note, all the notes should become due. No answer was served in said action, and subsequently various interviews and negotiations were had be

tween the plaintiff and Mr. Betts, who was a clerk in the office of said Sterling. On April 17, 1900, the plaintiff telephoned to said Betts that he had arranged to obtain the money and pay the mortgage, the notes, and other liens against said premises, and requested him to prepare a statement of the exact amount due. According to the affidavit of the plaintiff, said Betts replied over the telephone: "Good! I am glad of it, and I will make up a statement." On the next day, April 18th, the plaintiff called at the office of the defendant Sterling, and saw said Betts, and again stated that he was ready to pay off all incumbrances upon the property and get back a deed. After this interview the plaintiff states that he was told by said Betts that he would be informed next morning, over the telephone, of the exact amount of the liens and incumbrances against the prop erty, including mortgage, notes, and interest thereon. The next morning plaintiff received a message from said Betts, over the telephone, stating that Mr. Sterling would not accept any sum whatsoever in payment of the liens and incumbrances upon the property, and that Mr. Sterling claimed that the property was his, and refused to take the money. After receiving this message, plaintiff went to the office of said Sterling, and saw said Betts, and again offered to pay the amount which might be found due to date. On April 20, 1900, plaintiff, at the request of said Betts, made over the telephone, called again at the office of Mr. Sterling, and was asked to sign some paper, which he declined to do. On April 21, 1900, in the action commenced by Sweasy in August, 1898, a judg ment was entered against the plaintiff in the sum of $6,595.59; and thereupon said Sweasy commenced proceedings in the municipal court, Seventh district, borough of Manhattan, to dispossess the plaintiff from said premises. The plaintiff then commenced this action, and now applies for an injunction restraining said Sweasy from prosecuting said dispossess proceedings until the trial of this action. In the affidavit of the plaintiff upon which this motion is made, he states that the deed of the premises in question was given as collateral security, only, for the payment of said notes; and he also states that it was well understood between the parties to this action and the representatives of said Sterling, in his office, that said deed was held only as collateral security to secure the payment of said notes, and the lease was part of the same transaction, and was executed solely for the same purpose. The plaintiff admits in such affidavit that he never had any interviews with the defendant Sterling in relation to the matters above referred to, but that all his conversations were with said Betts. In the answering affidavits, said Sterling denies that the deed was taken as collateral security, and states that Betts had no authority to so receive it; and said Betts states that there never was any agreement, arrangement, or understanding between him and the plaintiff that the deed should be received as collateral security. Mr. Sterling and Mr. Betts both state in their affidavits that the arrangement which resulted in the giving of the deed, the lease, and notes was made entirely upon the request and for the benefit of the plaintiff; that the taxes had not been paid for a number of years, and the mortgage was about to be