by statute. In determining the question, therefore, resort must be had to the statute, and unless such power has been there conferred, either in express words or in words from which an inference can fairly be inferred, then this order is wrong, and must be reversed. In this connection, however, it must be borne in mind that an executor or administrator, independent of a statute, has the power to compromise and adjust claims made either against or in favor of estates represented by him; the only risk he assumes in doing so being that unless the surrogate, or a court having jurisdiction of the subject-matter, thereafter sustains his acts, he will be subjected to a personal liability. Chouteau v. Suydam, 21 N. Y. 179. The first statute bearing upon the subject which I have been able to discover is chapter 80, p. 88, of the Laws of 1847. This act permitted a surrogate to authorize executors and administrators to compromise or compound any debt or claim belonging to the estate of their testator or intestate, but not a claim against it. This statute, however, was amended in 1888 (chapter 571, p. 928), by which the surrogate was granted power to authorize executors and administrators "to compromise or compound any debt or claim"; and, while it might be argued with some force that this language was sufficient to confer power upon the surrogate to authorize the settlement of a claim made against the estate, it probably was not so intended; at least, it is not sufficiently clear that such was the intent, when the whole act is considered, as to justify the court in thus construing it. But whatever doubt may have existed in this respect prior to 1893 was removed by the passage of chapter 100, p. 200, of that year, by which the original statute of 1847, as amended in 1888, was further amended by adding the words, "or to compromise or compound any debt or claim owing by the estate of their testator or intestate." The words thus added, taken in connection with the other words used, clearly and unmistakably indicate an intent upon the part of the Legislature to confer power upon the surrogate to permit a settlement or compromise of a claim either made for or against the estate. But it is said that chapter 100, p. 200, of the Laws of 1893, was repealed by chapter 686, p. 1673, of the same year. This is undoubtedly true, but in repealing that act the amendment which was thereby added to section 2719 of the Code of Civil Procedure evidences, as it seems to me, that the Legislature intended to continue the power which had theretofore been conferred upon the surrogate with reference to a settlement or compromise, and not to diminish it. The section of the Code as thus amended is entitled "Payment of Debts." It provides that every executor and administrator must proceed with diligence to pay the debts of the deceased, according to the order therein stated; prohibits preferences for the payment of a debt over other debts of the same class; makes provision for the payment of debts not due, as well as those already accrued; prohibits executors and administrators from paying debts due to themselves until approved and allowed by the surrogate; empowers him to give preferences to rents due and accruing on leases, and then provides: "The surrogate may authorize the executor or administrator to compromise or compound a debt or claim on application and for good and sufficient cause shown. These words, when the section is properly construed, as it seems to me, include * * *" 87 N.Y.S.-9 and 121 New York State Reporter claims made against the estate. It is with such claims that the section is dealing, and I do not think what follows the words quoted— "and to sell at public auction, on such notice as the surrogate prescribes, any uncollectible, stale or doubtful debt or claim belonging to the estate"-destroys that effect or evidences contrary legislative intent. The meaning to be ascribed to the word "debt" is not uncertain. The Legislature has indicated that as thus used it includes every claim and demand upon which a judgment for a sum of money, or directing the payment of a sum of money, could be recovered in an action. Section 2514, subd. 3, Code Civ. Proc. Considering, therefore, the history of the legislation bearing on the subject, which has all finally culminated in section 2719 of the Code, and the evident purpose to be accomplished by that section, it seems to me the Legislature intended to confer power upon a surrogate to permit a settlement and compromise of any claim, whether it be for or against the estate. If I am right in this conclusion, then it necessarily follows that the Surrogate's Court had power to make the order appealed from, and this naturally leads to the consideration of the other question, and that is, whether such power was properly exercised. It may well be doubted whether the appellant is in a position to raise this question, inasmuch as the appeal is simply "from the order," and no statement is contained in the notice to the effect that the facts considered by the surrogate are sought to be reviewed. The Code provides that in certain cases a party aggrieved may appeal from a decree or from an order of a Surrogate's Court (section 2568), and that the appeal may be taken from questions of law or upon the facts, or both (section 2576), and that if taken upon the facts, the appellate court has the same power to decide the questions of fact which the surrogate had, and may, in its discretion, receive further testimony or documentary evidence, and appoint a referee (section 2586). In view of these provisions, it would seem that if the appellant desired to review the facts the notice of appeal should contain a statement to that effect, and in the absence of such statement the appeal would be considered only as upon questions of law. The conclusion, however, at which we have arrived renders it unnecessary to determine this question at this time. Assuming, therefore, without deciding, that the question is before us, I think the power of the surrogate was properly exercised. The Gilman estate amounts to nearly two millions of dollars. Mrs. Hall claims she is entitled to the whole of it, under an agreement made with the intestate, and she has brought an action in the Supreme Court of this state to establish her claim. A demurrer was interposed to her complaint upon various grounds, which was overruled by the Special Term, and on appeal to this court the same was affirmed. 77 App. Div. 458, 79 N. Y. Supp. 303. This action is still pending. In addition to this, a similar action has been commenced by her in the state of Connecticut, a third action in the state of New York, in which is involved the sum of $14,200 deposited in court, which she claims belongs to her under the agreement referred to, and there is a fourth action pending in the United States Circuit Court of Appeals for the Second District from a decree rendered against her in an action brought to recover upon a check for $10,000 alleged to have been made and delivered to her by the intestate. The petition of the administrators asking for permission to compromise with Mrs. Hall sets out that her entire claims can be settled and compromised for the sum of $20,000 in cash, and 400 shares of the Great Atlantic & Pacific Tea Company, of the value of $40,000; in other words, her entire claim can be settled for $60,000. Considering the uncertainty of litigation, the amount involved, and that it has been determined by this court that the complaint served by her in the action to recover the entire estate sets out a cause of action, the settlement would seem to be not only justifiable, but very desirable. By making the settlement, a large portion of the estate can be at once distributed among those entitled thereto; while, on the other hand, to refuse permission to compromise prevents a distribution of the assets, and involves the estate in litigation, the expense of which will necessarily be quite large. It also appears from the petition that Mrs. Hall resided in the intestate's home for some time prior to his death, enjoyed his friendship and confidence, performed various services in and about his household, was familiar with his affairs, and that, if the settlement be made, such information will be placed at the disposal of the administrators to be used as they see fit in contesting another claim which has been presented against the estate. The fact that Mrs. Hall has agreed to furnish this information is a mere incident of the compromise, and not the basis of it, and therefore is not subject to the criticism placed upon it by appellant's attorney. I am of the opinion that the order appealed from should be affirmed, with $10 costs and disbursements to the administrators respondent, payable out of the estate. All concur. O'BRIEN, Sheriff, v. NATIONAL CONDUIT & CABLE CO. (Supreme Court, Appellate Term. March 11, 1904.) 1. SHERIFFS-FEES-POUNDAGE-VACATED ATTACHMENT. Laws 1890, p. 936, c. 523, as amended by Laws 1892, p. 868, c. 418, § 17, subd. 2, provides that, if an action is settled, the sheriff, in New York City, is entitled to poundage, and may retain the property levied on until his fees and poundage are paid; but no provision is made for the enforcement of the lien, or the ascertainment of liability. Code Civ. Proc. § 709, provides that when a warrant of attachment is vacated, or attachment discharged, the sheriff, on application of defendant, must deliver the property to defendant on payment of costs and expenses. This section was held unconstitutional so far as it attempts to compel defendant to pay costs, etc. Code Civ. Proc. § 3343, subd. 12, declares that an attachment is annulled when the action is discontinued. Held that, where an attachment is annulled and vacated on plaintiff's motion, the sheriff is entitled to poundage, to be recovered from plaintiff. Appeal from Municipal Court, Borough of Manhattan, Twelfth District. Action by William J. O'Brien, as sheriff, etc., against the National Conduit & Cable Company. From a judgment for defendant, plaintiff appeals. Reversed. Argued before FREEDMAN, P. J., and GIEGERICH and McCALL, JJ. and 121 New York State Reporter Moen & Kilbreth, for appellant. Warner, Johnson & Galston, for respondent. FREEDMAN, P. J. The facts in this case are substantially undisputed. In December, 1902, this defendant brought an action in the Supreme Court against the Keystone Telephone Company, and also at the same time obtained a warrant of attachment against the property of the said company. This warrant was delivered to the plaintiff, who thereupon executed it by delivering a certified copy thereof to the Knickerbocker Trust Company, and thereby secured a levy upon a deposit of the telephone company amounting to the sum of $5,000. Subsequently the telephone company and the defendant herein settled the action, the telephone company paying the conduit and cable company the sum of about $25,000; and on January 9, 1903, upon motion of the defendant herein, an order was entered discontinuing the action, without costs to either party, and vacating the warrant of attachment. Prior to the commencement of this action, plaintiff demanded of the defendant payment of the sum of $150, which it is admitted is the proper amount of his fees and poundage in the attachment suit. Upon the defendant's refusal to pay said amount, this action was brought, and the court below rendered judgment in favor of the defendant. The only question in the case is whether the plaintiff is entitled to payment from the defendant in this action, it being the plaintiff in the Supreme Court action. The statute relating to a sheriff's poundage in cases of attachment in New York county (chapter 523, p. 936, Laws 1890, as amended by chapter 418, p. 868, Laws 1892), by subdivision 2 of section 17, provides as follows: "If an action is settled either before or after judgment, the sheriff is entitled to poundage upon the value of the property attached, not exceeding the sum at which the settlement is made; the sheriff may retain the property levied upon until his fees and poundage are paid." It does not appear that the plaintiff ever released the fund attached, and we do not consider it material to the determination of this case whether he had, or not, as the statute, while it gives the sheriff a right to retain the property levied upon until his fees are paid, makes no provision for the enforcement of his lien, nor for any method of procedure to ascertain who is liable for the payment of such fees. Section 709 of the Code of Civil Procedure provides that: "When a warrant of attachment is vacated or annulled, or an attachment is discharged, upon the application of the defendant, the sheriff must * * * deliver over to the defendant, upon payment of all costs, charges and expenses, all the attached property remaining in his hands, or that portion thereof as to which the attachment is discharged." In construing that section in Bowe v. U. S. Reflector Co., 36 Hun, 407, it was held that in so far as said section attempts to compel the defendant in the attachment to pay the costs, etc., incurred by the sheriff in levying under an attachment, where such an attachment has been subsequently vacated and set aside, it is unconstitutional and void, as depriving the defendant of his property without due process of law. This case was cited and followed in Lawlor v. Magnolia Metal Co., 2 App. Div. 522, 38 N. Y. Supp. 36. Where, however, the attachment is discharged by the giving of an undertaking, the case is different. Lawlor v. Magnolia Metal Co., supra. In the case at bar the attachment was not only "vacated," but, under the definition contained in subdivision 12 of section 3343, the attachment was "annulled." This vacatur and annulment were procured by the plaintiff upon its own motion, and it has been repeatedly held that a sheriff is entitled to poundage upon service of an execution when he has been prevented from fully executing the writ by the act or interference of the plaintiff. Parsons v. Bowdoin, 17 Wend. 14; Campbell v. Cothrain, 56 N. Y. 279; Flack v. State of New York, 95 N. Y. 461; O'Brien v. American Surety Co., 88 App. Div. 526, 85 N. Y. Supp. 316. There is no difference, in principle, between the cases where the plaintiff settles after issuance of, and levy under, an execution, or when he settles when an attachment has been issued and levy made. The plaintiff, it must be assumed, had secured its claim against the telephone company, and had accomplished the object sought when it issued the attachment, because it effected a presumably satisfactory settlement with said company, and then procured an order vacating the attachment and discontinuing the attachment. Section 3343, Code Civ. Proc., supra. It is a question whether, under such circumstances, the sheriff would have a right to even retain the property of the defendant in the attachment proceedings after the entry of such an order. Bowe v. U. S. Reflector Co., supra. Judgment reversed, and new trial ordered, with costs to appellant to abide the event. All concur. HOELLJES v. INTERURBAN ST. RY. CO. (Supreme Court, Appellate Term. March 11, 1904.) 1. CARRIERS-STREET CAR PASSENGER-EJECTION-REFUSAL TO PAY FARE. A street car passenger who, on being refused a transfer, instead of leaving the car, continues thereon to the end of the line, and refuses, on the car's return trip, to pay an additional fare, whereupon he is forcibly ejected, has no cause of action against the company. Appeal from Municipal Court, Borough of Manhattan, Tenth District. Action by Henry Hoelljes against the Interurban Street Railway Company. From a judgment for plaintiff, defendant appeals. Reversed. Argued before FREEDMAN, P. J., and GIEGERICH and McCALL, JJ. Henry W. Goddard and William E. Weaver, for appellant. MCCALL, J. This is an action from which, during the progress of the trial, every question was eliminated except that involving the damages which ensued by an alleged improper ejectment of the plaintiff |