SECOND DEPARTMENT, MARCH TERM, 1897.

[Vol. 14. "is appropriate only to review the judicial action of inferior courts or of public officers or bodies exercising under the laws judicial functions; and there is no authority to be found in the reports of this State sanctioning its use for any other purpose. When the action of a public officer, or of a public body, is merely legislative, executive or administrative, although it may involve the exercise of discretion, it cannot be reviewed by certiorari; and so it has been so often held that the rule has become elementary."

The authority bestowed upon boards of supervisors by the County Law to establish fire districts in their counties outside of incorporated villages is clearly a legislative power; and being such it is not assailable by means of the writ of certiorari. It may well be that a resolution adopted in the exercise of this power would be adjudged void in a judicial proceeding which was appropriate to test its validity if it were made to appear therein that the conditions precedent, prescribed by the County Law, did not either appear to exist or exist in fact when the resolution establishing the fire district was adopted. It is to be noted in the present case, however, that the relators nowhere allege that the papers which were treated by the board as one petition were not in fact signed by a sufficient number of taxable inhabitants of the character prescribed by the amended statute. The petition was evidently drawn with reference to section 37 of the County Law in its original form, instead of the section as amended in 1896; and the failure of the relators to allege that the names of the signers did not appear on the last preceding assessment roll of the town of Oyster Bay as owning or representing the proportion of real property required by the amendment, may be regarded as indicating that the signers were in fact assessed for taxes upon a sufficient quantity of real estate to enable them to invoke the action of the board of supervisors for the establishment of the desired fire district.

But, however this may be, the writ of certiorari in the present proceeding must be dismissed for want of jurisdiction.

Writ of certiorari dismissed, with costs to the defendant.

All concurred.

Writ dismissed, with ten dollars costs and disbursements to the defendant.

SECOND DEPARTMENT, MARCH TERM, 1897.

App. Div.]

JOSEPH CAMPBELL and Others, as Executors, etc., of WILLIAM CAMPBELL, Deceased, Appellants, v. NEW YORK LIFE INSURANCE COMPANY, Respondent.

Application of a loan, by the lender — acquiescence therein sideration for an agreement to extend the time of payment judgment of foreclosure is not a bar to the agreement.

what is a sufficient conwhen the entry of a

Where the owners of real property procure a loan upon mortgage, and consent that the money remain in the hands of the mortgagee to be advanced upon their orders, their acquiescence in the application by the mortgagee of a part of the loan to the payment of interest on prior loans made by the mortgagee to the mortgagors, and of taxes upon the mortgaged premises, is a bar to an action for damages brought by assignees of the mortgagors based upon a claim that such part of the money has not been advanced in accordance with the agreement.

An agreement by a mortgagee which has brought an action to foreclose its mortgage, that it will not, for a certain period, enforce by sale any judgment of foreclosure which it may obtain in the action, provided that the appearance of a non-resident, the wife of one of the mortgagors, be procured, and that the parties to a contemplated lease of the building situate upon the mortgaged premises complete and furnish it as a first-class hotel by a specified time, and that on the first of each month one month's interest at six per cent be paid on the judgment of foreclosure, or until the same shall have been obtained, on the mortgages and on the interest and expenses then due, and that on the first day of each January, during the period of the extension, or within thirty days thereafter, there shall be paid one year's tax, which has been longest due, and also any assessments and all premiums for insurance, and also the water rates, on or before August first in each year-is founded upon a good consideration.

The agreement being made in contemplation of the entry of judgment of foreclosure and sale, and indeed providing for it, the fact that such judgment is subsequently entered does not constitute a bar to an action by assignees of the mortgagors for damages alleged to have resulted from the mortgagee's breach of the contract for the extension.

APPEAL by the plaintiffs, Joseph Campbell and others, as executors, etc., of William Campbell, deceased, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 25th day of June, 1895, upon the verdict of a jury rendered after a trial at the New York Circuit, and also from an order entered in said clerk's office on

SECOND DEPARTMENT, MARCH TERM, 1897.

[Vol. 14.

the 23d day of July, 1895, denying the plaintiffs' motion for a new trial made upon the minutes.

This appeal was transferred from the first department to the second department.

B. C. Chetwood and J. Alexander Koones, for the appellants.

William B. Hornblower, for the respondent.

HATCH, J.:

Except as developed upon the trial, it is somewhat difficult to determine upon what theory the plaintiffs seek a recovery in this action. The complaint contains sixty-two paragraphs, wherein are set out several transactions between the firm of Phyfe & Campbell, who are plaintiffs' assignors of the claimed cause of action, and the defendant. The transactions thus set out are somewhat complicated, are quite confusing and are not in all respects harmonious. Some of them appear to be entirely immaterial to any cause of action; others have a tendency to state a cause of action, but seem insufficient for that purpose. It becomes practically unimportant, however, to particularly challenge the specific allegations of the complaint at this time, for the defendant answered the complaint upon the allegations as therein framed and proceeded to a trial without questioning it in any respect. The parties, therefore, came to the trial of this case with issues in many respects quite indefinite, and it is quite easy to see that, under these circumstances, the proof might take, as it did to some extent, quite a wide range. In an early stage of the trial, however, the issues assumed definite form and the questions submitted to the jury by the court, while admitting of extended examinations and voluminous testimony, became narrow in compass. Before proceeding to state what these questions were it becomes necessary, to their proper understanding, that we take a survey of the facts and also dispose of some minor questions which have been called to our attention.

Phyfe & Campbell were a firm of builders carrying on business in the city of New York. In October, 1883, they purchased of John C. Anderson certain property situate upon what was called the Fifth Avenue Plaza, between Fifty-eighth and Fifty-ninth streets, in the city of New York, upon which now stands

App. Div.]

SECOND DEPARTMENT, MARCH TERM, 1897.

the Plaza Hotel. The purchase price of this property was $850,000, of which Phyfe & Campbell paid $50,000, giving back mortgages to Anderson for $800,000. They immediately began to improve the property and began the erection of an expensive building thereon. To enable them to make the improvement they applied to the defendant for loans, making three several applications, the first, May 1, 1884, for $510,000; the second, on March 30, 1885, for $150,000, and the third, on February 27, 1886, for $200,000. These sums of money were advanced by the defendant to Phyfe & Campbell, were secured by their bonds and by mortgages upon the premises, and the lien of Anderson's mortgages was made subordinate thereto. These three loans amounted in the aggregate to $860,000. In the application for the second loan it was recited that it was understood at the time of negotiating the first loan that Phyfe & Campbell would erect on the lot a "first-class fire-proof building." The sums included in the last two loans were advanced upon the understanding that they were to be used in the construction of the building, and they were so used as we shall presently note. The money obtained on the last two loans, checks for which were produced upon the trial, was held by the company through its agent and paid out upon orders given by Phyfe & Campbell. Of the last $200,000 but $140,000 was actually used for purposes of construction. The remaining $60,000, also paid by checks indorsed by Phyfe & Campbell, was applied in payment of interest due the defendant for prior loans and taxes levied upon the property. It was alleged in the complaint that only $140,000 of the last loan was advanced by the defendant, in consequence of which Phyfe & Campbell were greatly embarrassed about the construction of the building and damaged in consequence. Upon the trial this claim was made and proof was given in respect thereto. But it was

admitted finally that the whole sum was advanced by the defendant, although $60,000 was applied as heretofore stated. The court held that the whole amount of the loan was advanced and that no claim

for damage could be predicated thereon This ruling was correct, for at the time when this money was applied it was so applied with the knowledge of Phyfe & Campbell; they indorsed checks therefor and at the time raised no objection to such disposition of the money. The plaintiffs cannot now be heard to say that it was

SECOND DEPARTMENT, MARCH TERM, 1897.

[Vol. 14.

improperly applied or that they suffered damage from an act in which Phyfe & Campbell at the time acquiesced and from an application of the money in discharge of their debt.

These three loans were called temporary loans, and it was understood between the parties that when the building reached an advanced stage of construction, the defendant would make a permanent loan which should embrace the temporary loans and any further sum which might be agreed upon. The permanent loan was never made and a claim of damage was made on account thereof in the complaint. Phyfe & Campbell claimed to have had another party who would have advanced money sufficient for their needs in the form of a permanent loan, but that the defendant insisted upon its option to make it. The claim of the plaintiffs in this respect is exceedingly indefinite; it does not appear to have been seriously pressed upon the trial; it was not submitted to the jury by the court, and no request was made for its submission. We can find nothing in the record which would justify a recovery in the plaintiffs' favor upon this claim, and must conclude, from the attitude of all the parties in respect to the course of the trial, that such claim was abandoned, and, therefore, requires no further consideration by us.

In November, 1887, Phyfe & Campbell were in default for nonpayment of interest upon the loans made by the defendant, and the latter began proceedings to foreclose its mortgages. These proceedings ripened into a judgment of foreclosure and sale of the premises upon the 28th day of April, 1888, for the sum of $973,241.67. At this time there were liens existing upon the property subject to this judgment in quite a large amount, held by various parties. These lienors were represented by mortgages, judg ments and mechanics' liens, among whom was Anderson, who still held his mortgages, reduced somewhat in amount, and Charles A. Peabody, who represented certain holders of bonds, issued upon the faith of the structure, as trustee of a mortgage to secure their payment. While the proceedings to foreclose the defendant's mortgages were in progress, Mr. Phyfe, of the said firm of Phyfe & Campbell, applied to the defendant to arrange the matters and procure an extension of sale under the judgment of foreclosure. At this time papers in the foreclosure proceedings had not been served upon the wife of Phyfe, who lived in the State of New