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of the plaintiff and his assignors, so far as it would go, instead of to the payment of the costs of the adverse parties. But the commissioners took no appeal from the provision of the order of the county court in this respect. The fact seems to be that, if the application to open the highway fails, no provision is made for the compensation of the commissioners in excess of the sum of $50, and the commissioners must be deemed to accept their appointments with knowledge of that fact. The provision is of doubtful wisdom, as it would seem to offer an inducement to decide in favor of the opening of a highway for personal reasons; that is, to obtain payment of their fees. But, if we are right in our construction of the statute, the remedy must be by application to the legislature. The judgment appealed from should be affirmed, with costs.

(28 App. Div. 521.)

BOARD OF SUP'RS OF QUEENS COUNTY v. PHIPPS. (Supreme Court, Appellate Division, Second Department.

HIGHWAYS-INPROVEMENTS-TRANSFER OF FUNDS.

April 26, 1898.)

In 1897 the supervisors of Queens county passed two resolutions providing, respectively, for separate issues of bonds, one for improvement of one county road, and the other for the construction and improvement of another county road, the moneys received therefrom to be kept as distinct funds. One of the roads was completed for a sum less than was thus provided, while the sum provided for the other proved inadequate; and in January, 1898, the supervisors transferred part of the surplus of one fund to make up the deficiency in the other. Held, that this course was authorized, under "Highway Law," $$ 54, 56, 57, notwithstanding that by the Greater New York charter (Laws 1897, c 378, § 1508) the supervisors, from January 1, 1898, were deprived of power to issue bonds binding any property within the city.

Submission of controversy on agreed statement of facts between board of supervisors of Queens county and Charles L. Phipps, county treasurer of Queens county. Judgment for plaintiff.

Argued before GOODRICH, P. J., and CULLEN, BARTLETT, HATCH, and WOODWARD, JJ.

Townsend Scudder, for plaintiff.
George W. Davison, for defendant.

CULLEN, J. In the year 1897 the board of supervisors of Queens county passed two resolutions, by the first of which it directed the issue and sale of bonds to the amount of $60,000 for the purpose of improving a county road known as the "Newtown and Flushing Road"; and by the second it directed the issue and sale of bonds in the amount of $340,000 for the construction and improvement of another county road, known as the "Brooklyn and Jamaica Road." Each resolution provided that the money received from the bonds authorized thereby should be kept as a separate and distinet fund in payment of the indebtedness of the county, incurred on the road mentioned in the resolution. The Brooklyn and Ja

maica Road was completed at an expense within the amount provided for that purpose, leaving a surplus on hand not required for the improvement. The amount provided for the Newtown and

and 85 New York State Reporter.

Flushing Road proved inadequate for that improvement. uary, 1898, the board of supervisors passed a resolution transferring $15,000 from the Brooklyn and Jamaica fund to the Newtown and Flushing fund, and directing the county treasurer to pay out of that sum the expenses incurred in the improvement of the latter road. The defendant contends that the board of supervisors had no power to authorize such transfer or payment; and that is the only question presented by the submission.

By section 54 of the highway law, the board of supervisors is authorized to adopt the county road system, and to designate as county roads the leading market roads in the county. By section 56 it is provided that the expense of improving, repairing, and maintaining the county roads shall be a county charge, and that in counties of a certain character (in which class Queens county falls) the expense of constructing, improving, maintaining, and repairing such roads shall be apportioned by the board of supervisors of the county upon the various towns and cities within its limits, as the board may deem just. The money necessary for that purpose, or to pay the principal and interest of any bonds issued therefor, is to be levied and collected in the same manner as other county charges. By section 57, the board of supervisors is authorized to borrow money from time to time for the construction, maintenance, and repair of the county roads, and issue bonds or other evidences of indebtedness of the county therefor. The authority for the original issue of these bonds is not challenged. The bonds issued are the obligations of the county at large, and any money received from the issue of such obligations became the property of the county. This being so, the board of supervisors, unless restrained by statute, had the power to apply the money to the satisfaction of any county charge, or to any county work which it was authorized to undertake. People v. Baker, 29 Barb. 81. The case is plainly distinguishable from that of many cities which by their charters are authorized to raise special funds for particular objects, and forbidden, either expressly or by implication, to use those funds for other purposes. The decisions in Priet v. Reis, 93 Cal. 85, 28 Pac. 798, and City of Bonham v. Taylor (Tex. Sup.) 16 S. W. 555, apply only to cases of the latter class. The only provision of the statute which can be construed as a restriction is found in section 56:

"The board of supervisors shall designate the amount of money to be expended upon each county road, and may make rules and regulations for the government of the county engineer and regulating the expenditure of such money." 1895, c. 375.

Laws

We think such a construction unwarranted. The sole object of this provision was that the board of supervisors itself should make the allowance for each road, so that the apportionment should not be left to its subordinates who might be in actual charge of the improvement. The power, too, is continuous; and there is nothing in the statute which prohibits the board of supervisors from at any time modifying or repealing its previous action. No good purpose could possibly be subserved by retaining the surpius

that has arisen on the improvement of the Jamaica Road, in the county treasury, after every charge against the fund has been satisfied, nor by investing it to await the maturity of the bonds, subject to all the hazards that attend investments, especially in case of public moneys. Nor do we think it any objection to the transfer of these moneys that by the Greater New York charter (section 1508, c. 378, Laws 1897) the board of supervisors of the county of Queens, from the 1st day of January, 1898, is deprived of any power to issue bonds or obligations which shall bind or render liable the property in any part of the county included within the city. The money has already been raised by obligations of the whole county, which are charges both on the property lying within the city of New York and on that lying without the city. There is no injustice in using that money for any county purpose. In fact, both these roads fall within the territorial limits of the new city.

There should be judgment for the plaintiff on submitted case. All concur.

(28 App. Div. 519.)

PICKER et al. v. FITZELLE.

(Supreme Court, Appellate Division, Second Department. April 26, 1898.)

1. CONTINUING GUARANTY.

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The defendant gave to plaintiffs the following guaranty: "In consideration of $1, I do hereby become bound to Picker Bros., * * and agree to pay them, for all such goods that they may hereafter sell 串 to C. J. F., # not exceeding on the aggregate $182; the same to be a running account for an indefinite time, and such deliveries be at such time as said C. J. F. shall desire. Held, that this was a continuing guaranty; the amount specified being a limitation only on the extent of defendant's responsibility, and not on the amount of goods the plaintiffs might sell.

2. SAME-QUESTION FOR COURT.

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The question of construction involved in determining whether a written guaranty is a continuing one or not is for the court, not the jury.

Appeal from city court of Yonkers.

Action by Adolph Picker and others, composing the firm of Picker Bros., against Francis A. Fitzelle. From an order setting aside a verdict for defendant, and granting a new trial, defendant appeals. Affirmed.

Argued before GOODRICH, P. J., and CULLEN, BARTLETT, HATCH, and WOODWARD, JJ.

I. J. Beaudrias, for appellant.
Joseph F. Daly, for respondents.

CULLEN, J. This action was brought on the following guaranty: "In consideration of one dollar, and other good and sufficient consideration to me in hand paid at and before the execution and sealing of this instrument, the receipt whereof is hereby acknowledged, I, Francis A. Fitzelle, of 26 North Broadway, Yonkers, N. Y., do hereby become bound to Picker Bros., of 26 Warburton avenue, said Yonkers, and agree to pay them, for all such goods and personal property that the said Picker Bros. may hereafter sell and deliver to

and 85 New York State Reporter.

Cornelius J. Fitzelle, of said Yonkers, but not exceeding on the aggregate $182; the same to be a running account for an indefinite time, and such deliveries be at such time as said Cornelius shall desire. But the condition of this promise or agreement is that I shall not become liable to pay said sum only in case said Cornelius shall fail and neglect to pay such amount and at such time as he shall become liable to, on account of such deliveries as aforesaid. "Dated Yonkers, N. Y., December 18th, 1895.

"Francis A. Fitzelle. [Seal.]"

There was but one issue in controversy. That was the proper construction of this guaranty; the defendant contending that it was exhausted when the plaintiffs had sold Cornelius Fitzelle goods to the amount of $182.22, while the plaintiffs claimed that it was a continuing guaranty, the amount specified being a limitation only on the extent of the defendant's responsibility. The court submitted the construction of this guaranty to the jury for determination, who found in favor of the defendant. Thereafter, on the plaintiffs' motion, the verdict was set aside, and a new trial granted, from which order this appeal is taken. Even if evidence of the circumstances and situation of the parties was competent on the construction of the instrument, still the question of that construction was for the court, not for the jury. Tunbridge v. Read (N. Y. App.) 16 N. E. 534; Edall v. Railroad Co., 18 App. Div. 216, 45 N. Y. Supp. 959. However, had the jury decided the question correctly, no harm would have been done, but in our opinion its decision was wrong. Had the instrument ended at the figures "$182.22," we are inclined to the opinion that even then, under a long line of authorities, the amount specified would have been a limitation only on the defendant's liability, and not on the amount of goods which the plaintiffs might sell. Gates v. McKee, 13 N. Y. 232; Rindge v. Judson, 24 N. Y. 64; Bank v. Phelps, 86 N. Y. 484. But the further provision, "The same to be a running account for an indefinite time, and such deliveries to be at such time as said Cornelius shall desire," puts the question beyond reasonable doubt. A running account necessarily contemplates continuous dealing, and this intention is further emphasized by the provision that the account shall be for an indefinite time. It cer tainly was hardly contemplated that during the period over which such account would extend the debtor would make no payments, nor the aggregate of sales to him not exceed the small sum named in the guaranty. There is authority for the proposition that the term "running account" means, as a matter of law, mutual accounts. Brackenridge v. Baltzell, 1 Ind. 333. However this may be, we think that in this case the defendant plainly intended to guaranty the balance of account to the amount specified in his undertaking.

The order appealed from should be affirmed, with costs. All

concur.

(28 App. Div. 577.)

HUBBARD v. CHAPMAN.

(Supreme Court, Appellate Division, Second Department. April 26, 1898.)

1. CASE ON APPEAL.

The proposed case on appeal provided for by Code Civ. Proc. § 997, embraces what was formerly known, and is still described in General Rule 34, as a "bill of exceptions."

2. SAME-STATEMENT OF EVIDENCE.

Where an appellant seeks to review rulings of the court in receiving testimony offered at the trial by the respondent, his proposed case need not set out the evidence in terms, but may make a statement of its effect.

Appeal from trial term.

Action by Norman Hubbard against Henry T. Chapman. Judg ment for plaintiff. Defendant appeals. Motion to dismiss for failure to file and serve printed appeal books, as prescribed by General Rules of Practice, No. 41. Denied.

Argued before GOODRICH, P. J., and CULLEN, BARTLETT, HATCH, and WOODWARD, JJ.

Joseph A. Burr, for the motion.
Herbert A. Ketcham, opposed.

HATCH, J. The appellant made and served a case which he calls a "proposed case and exceptions." It is evident that by this proposed case the appellant alone seeks to review certain rulings of the court in receiving certain testimony offered by the respondent upon the trial; and for this purpose the case as proposed states that "evidence was offered by the plaintiff tending to prove," etc. Then follows a statement of the evidence, and the objection thereto, and the ruling of the court thereon. We think that this is a case contemplated by section 997 of the Code of Civil Procedure, which provides:

"Where a party intends to appeal from a judgment, rendered after the trial of an issue of fact, or to move for a new trial of such an issue, he must, except as otherwise prescribed by law, make a case, and procure the same to be settled and signed by the judge, * * * by or before whom the action was tried, as prescribed in the general rules of practice. The case must contain so much of the evidence, and other proceedings upon the trial, as is material to the questions to be raised thereby, and also the exceptions taken by the party making the case."

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By rule 34 of the General Rules of Practice it is provided that: "A bill of exceptions shall only contain so much of the evidence as may be necessary to present the questions of law upon which exceptions were taken on the trial; and it shall be the duty of the judge upon settlement to strike out all the evidence and other matter which shall not have been necessarily inserted." It thus appears that the Code and the rules are in harmony with respect to what constitutes a case and exceptions. One refers to the other; and by the express terms of each it is only required that the case shall contain so much of the evidence and proceedings had upon the trial as is material to present the questions and exceptions which the appellant seeks to have reviewed. In this view it can make no practical difference whether the evidence in terms be set out, or a statement of its effect be made. The essen

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