satisfied. Perhaps a more accurate statement | the agreement should be declared null and of the question presented would be whether certain real estate once conveyed by him to a trustee for specific purposes was exempted from the limitations and conditions of the trust by a subsequent deed and agreement between the same parties. The case shows that prior to the year 1864 Newman and his wife lived unhappily together, and were desirous of making an arrangement by which they could live separately. They were the parents of four children, who it was thought desirable should reside with and be supported by the mother. Newman had theretofore given to his wife $9,000, and, being willing to provide more largely for her support, on the 7th day of December, 1864, entered into a tripartite agreement with his wife and one John D. Neefus, as trustee, whereby he conveyed to said Neefus and his successors and assigns, thirteen and one half lots of land in the City of Brooklyn, to be held and used by such trustee for the following purposes and conditions, viz. to sell and convey the same and invest the proceeds in bonds of the United States or of the State of New York, and pay the income thereof to Harriet Newman during her natural life for her support and that of her four children. void, and Neefus should deliver back to Newman the quitclaim deed, bond and collateral, and bill of sale; but in case Harriet performed her covenants to faciliate such divorce, then said papers delivered to Neefus in escrow "shall become operative and in full force and effect." It is then further provided that "The furniture taken, together with the several valuable properties heretofore conveyed to said Harriet, or caused to be conveyed, or in trust for her and children's benefit, shall be and hereby is taken in full satisfaction and bar of and to all or any claims whatsoever on said Newman, whether for her said Harriet's own or children's account." A quitclaim deed, dated April 17, 1865, from Newman to Neefus and to his heirs and assigns of the thirteen and one half lots of land, was also put in evidence. This deed was duly recorded in the clerk's office of Kings County, on April 18, 1865. The next instrument, in chronological order, put in evidence was a warranty deed, dated April 13, 1868, from Mary Jarvis and David R. Jarvis, her husband, of a house and lot on Jefferson Street, Brooklyn, to "John D. Neefus, as trustee by and under a deed of trust from Franklin and Harriet Newman," for the consideration of $6,500. This deed and agreement was duly recorded in the register's office of King's County, De- Next follows an agreement made on Jancember 9, 1864. Within a year thereafter the uary 18, 1872, between Franklin Newman of the parties, having determined that the peace and first part, Harriet Newman of the second part, happiness of Newman and his wife and of John D. Neefus of the third part, and Franktheir children would be promoted by an abso- lin Newman, Jr., of the fourth part. This agreelute divorce, on April 8, 1865, entered into an- ment embraces the following recitals: "Whereother agreement between each other and with as, by a certain deed of trust made between the Neefus, for the purpose of promoting such di-parties hereto of the first, second and third parts, vorce. In this agreement it was recited that bearing date the 7th day of December, 1864, *** Newman desired to make still further provis- the said party of the third part received certain ion for his wife and children than was made in real and personal property in trust for certain the previous trust deed, and for that purpose purposes therein mentioned; and whereas, such (upon condition that said Harriet should faith property so received in trust by said party has fully perform the covenants therein contained) been sold and the proceeds thereof have all been agreed to quitclaim to said Neefus all his invested in a house and lot in Jefferson Street, right, title and interest to and in the certain near Ormond Place in the said City of Brookthirteen and a half lots previously conveyed to lyn, and in four United States 6 per cent bonds said Neefus." He also agreed upon the same of $1,000 each; and whereas, at the request of condition to give to Neefus for the use of said the said parties of the first and second parts, Harriet a bill of sale of certain furniture, to pay and with the consent of the said parties of the certain bills for board of the children, to pay third and fourth parts, the said party of the Neefus $300 a year for the support and educa- fourth part is to be substituted as trustee in the tion of each of two of Newman's children until place and stead of the said party of the third they should respectively become of age, to ex-part subject to all the covenants and conditions ecute and deliver his own bond for $2,000, with collateral security, for the payment of such allowances. It is provided that " Said quitclaim deed, also said bond with collateral, and the bill of sale, all to be put in escrow (said Neefus the party) to be delivered when said Harriet faithfully performs all her covenants hereinafter contained, but to be returned to said Newman if not so performed." Certain covenants are then made by Harriet that she will facilitate the proceedings for a divorce, by all means in her power; that out of the provisions heretofore and herein made she will support herself and her children, and that neither by herself nor the children will she run up bills or incur debts in Newman's name. It was further provided that in case Harriet should fail to perform her several covenants, in said trust deed contained; and whereas, the said party of the third part has conveyed to said party of the fourth part, by deed bearing even date herewith, the house and lot in Jefferson Street, and has also simultaneously with the execution hereof, delivered to said party of the fourth part the said four United States bonds for $1,000 each, being all the property, money or proceeds in the hands or possession of said party of the third part under and pursuant to said deed of trust;"-in consideration of the premises it was then provided that the parties of the first and second part should release and discharge the party of the third part from all claims and demands whatsoever. The party of the third part did thereby also in consideration of the premises "transfer, assign and set over to said party of the fourth part, the said Jefferson Street house and United This result is claimed to be produced by the provisions of the agreement of April 8, 1865, which, it is argued, created a trust in the reversionary estate for the benefit of Harriet Newman. States bonds and all and every right, claim | sion to which she was entitled is apparently or demand which he may or shall have for or controlled by its provisions. by reason of said deed or trust; and the said party of the fourth part, in consideration of the conveyance to him of the said house and lot and of the delivery of said bonds, did "consent and agree to take said house and lot and bonds, and hold the same as trustee, pursuant to the covenants and conditions in said trust deed contained, in the place and stead of the said party of the third part." On the same day "John D. Neefus individually and as trustee, by and under a deed of trust from Franklin and Harriet Newman," and Mary Ann, his wife, conveyed by quitclaim deed all of the estate, right, title and interest, both in law and equity, of, in or to the house and lot on Jefferson Street to "Franklin Newman, Jr., as trustee in place and stead of said John D. Neefus, under said deed of trust" and to his successors and assigns forever. From this time forward it would seem that Franklin Newman, Jr., acted as trustee under the original trust deed, until the death of Harriet Newman, which occurred in July, 1882. Harriet Newman left a will by which she demised all of her property to her daughter Mary and her son Franklin, and appointed her son Franklin sole executor of her will. On December 9, 1882, Franklin Newman, claiming to be the reversionary owner of the property held by Franklin Newman, Jr., conveyed it to the plaint iffs; and this action was brought by them to recover possession of the same. The effect of the deed and trust agreement of December, 1864, was to create a valid power in trust to convert the land into money and invest the proceeds in securities in which Harriet Newman was to have a life estate only. Belmont v. O'Brien, 12 N. Y. 395. The reversionary interest in the land, not having been conveyed by such instrument, remained in the creator of the trust, and upon the death of Harriet Newman reverted to him under the provisions of the statute. 3 R. S. 7th ed. p. 2182, § 62. It is also quite clear that the limitations and conditions of the attempted trust followed the property into which the estate was converted, and that it became subject to the same rules of reversion which pertained to that originally conveyed. Belmont v. O'Brien, supra. These propositions were assumed to be correct by both the general and special terms in their consideration of the case, and may be regarded as conclusively settled. It was, however, held by the general term that Franklin Newman by the execution and delivery of the quitclaim deed of April 17, 1865, transferred to Neefus his reversionary interest in the trust fund, and that it then became vested absolutely in Neefus, and still remains in him or the trustee, Franklin Newman, Jr., who was substituted in his place. The defendants' answer alleges impliedly, if not directly, that this reversionary estate was held by the trustee for the benefit of Harriet Newman, and upon her death descended or was distributable to her three children and the issue of the fourth who had died. This contention is hardly sustainable in view of the fact that Harriet Newman left her property, by will, exclusively to two of said children; and any rever We are of the opinion that no trust was created by that agreement, and that under it Neefus acquired a mortgage interest only, which became satisfied in 1871 by the performance of the obligation and the arrival of Franklin and Mary at maturity and the termination of the period for paying annuities for their support. The case was considered at the general term, upon the theory that its determination depended solely upon the effect to be ascribed to the quitclaim deed, unaffected by the cotemporaneous agreement, and as thus viewed might af ford some reason for doubt as to its true solution.. A careful consideration of the provisions of that agreement, however, leads to the conviction that there was no intention on the part of Newman, or his wife, to vest any personal interest in the property in Neefus. It was conveyed to him indeed, but it was conveyed for a purpose which it is the duty of the court to discover and enforce, if consistent with the rules of law. This purpose is clearly disclosed by an examination of the provisions of the agreement. Among other things it appears therefrom that the sole consideration for the deed was furnished by Harriet Newman, and its object was declared to be "to make still further provision for said wife and four children." It was also provided that Neefus should reconvey the property to Newman in case the said Harriet "should fail to comply or perform in good faith her part of the covenants herein contained," and finally it was declared, that "said_quitclaim deed, also said bond with collateral and the bill of sale, all to be in escrow (said Neefus the party) to be delivered when said Harriet faithfully performs all her covenants hereinafter contained." The delivery here spoken of was a delivery to Neefus, to take the place of the conditional delivery there made, because it obviously was not intended that Harriet Newman was to take Franklin Newman's bond, or the judgment assigned as collateral thereto, or the bill of sale of the furniture transferred "for her use," which are therein spoken of in connection with the quitclaim deed. The idea that the property was to be conveyed to Newman if Harriet failed to perform her contract is inconsistent with the theory of any personal interest in Neefus, while it was essential to the performance of his trust, as well as the enforcement of the security, that he should have the title of the property with the power of converting it. On the other hand, if the reversion had been intended to be given to Neefus in trust for Harriet Newman, the legal estate would have vested immediately in her by force of the forty-ninth section of the statute, and the life estate and reversion uniting in the same person the former would have merged in the latter, thus destroying the trust. That this was not intended is shown by the repeated declarations of the parties as to the continued existence of the trust of 1864. It matters Frank L. WARRIN, Appt., v. of Queens Co., Respt. not whether the provisions of the agreement were all valid or not, for when the object of the inquiry is to ascertain the interest of the Francis B. BALDWIN, County Treasurer parties in making a contract, their meaning is as much revealed by the expression of invalid as of valid provisions, and the court will avail itself of every lawful means and ascertain and give effect to the intention of the parties, if not contrary to the law. It seems quite clear therefore that the object of the deed was simply to furnish additional security to Harriet Newman that Franklin Newman should promptly make the additional payments of income which he became liable to pay by the agreement. It certainly was not intended that Neefus should take the reversionary interest for himself, and there is no color of a provision in the agreement by which Harriet Newman was en titled to take it. Neefus received the property in question simply as a security for the performance of Newman's agreement, to be returned to Newman when the object of the transfer had been satisfied. The practical construction given to this conveyance and agreement, by the subsequent dealings and conduct of the parties and the various contracts executed between them, is quite controlling as to their real intention in making it. The thirteen and one half lots were converted into money, amounting presumably to about $9,000. Of this sum $6,500 was invested in the house and lot on Jefferson Street, the title to which was taken to Neefus as trustee under the trust deed of 1864, and the balance in 4 per cent United States bonds. By the agreement of January 18, 1872, it was recited that the properties were held by Neefus as trust property under the trust deed of 1864, and he thereby agreed to convey them to Franklin Newman, Jr., as substituted trustee, subject to the conditions and limitations of the said trust; and the said Franklin Newman, Jr., received them solely as trustee under such instrument. The quitclaim deed from Neefus to Franklin Newman, Jr., conveys all of the interest in the property held by Neefus, either individually or as trustee, to the grantee therein named as trustee under such trust deed. Whatever effect, therefore, may be ascribed to the deed of April 8, 1865, all of the interest thereby conveyed was reconveyed to Franklin Newman, Jr., and by the agreement of January 18, 1872, executed by all of the parties having an interest in the subject and which was recorded in the register's office of King's County January 19, 1872, the trust was redeclared and the entire proceeds of the whole property were reconstituted a trust fund, subject to the limitations and conditions of the deed and contract of December 9, 1864. It follows that upon the death of Harriet Newman the corpus of the trust estate reverted to Franklin Newman and passed to the plaintiffs, under the conveyance from him to them. Other questions made in the case become immaterial in the view which we have taken of the questions raised. The order of the General Term should be reversed and the judgment of the Special Term affirmed, with costs to the plaintiffs in the court below and in this court., All concur. Chapter 226, Laws of 1878, did not authorize the Treasurer of Queens County to collect from the trust funds in his custody the fees allowed upon sales of lands to the several towns in the county for unpaid taxes, without the audit of the town board; and such action on his part being illegal, an action for the prevention thereof was maintainable by a taxpayer, under chapter 531, Laws of 1881. (Decided May 10, 1887.) APPEAL from a judgment of the Supreme Court at General Term in the Second Department, affirming a judgment of the Queens Circuit dismissing the complaint in an action to restrain the alleged illegal official act of a county treasurer. Reversed. Reported below, 35 Hun, 334. The facts and questions raised appear from the opinion. Mr. Francis M. Scott, for appellant: The plaintiff is entitled to maintain this action. Chapter 571 of the Laws of 1881 authorizes action by taxpayers against officers of counties, towns and municipal corporations, to prevent illegal official acts on the part of such officers. Österhoudt v. Rigney, 98 N. Y. 222. The County Treasurer's fees and expenses of advertising on lots struck off to the town are town charges in the sense in which those words are used in the Revised Statutes. 1 R. S. *p. 358; People v. Haws, 34 Barb. 69; Brady v. Supervisors, 2 Sandf. 460; Bright v. Supervisors of Chenango Co. 18 Johns. 242. If the County Treasurer's claim for fees and expenses is a town charge, it must be audited by some competent body before it can be lawfully collected. Laws 1840, chap. 305, § 1; Bell v. Town of Esopus, 49 Barb. 506 and cases cited; People, Thurston, v. Town Auditors of Elmira, 20 Hun, 150, affirmed in 82 N. Y. 80; People, Bentley, v. Whalen, 15 N. Y. Week. Dig. 410. The board of the town auditors is the only body having authority and jurisdiction to audit the County Treasurer's claim against the town for fees and expenses. 1 R. S. p. 367, part 1, chap. XII, title 2, § 4, paraphrased from chap. 49, Laws 1813, § 2; R. S. part 1, chap. XI, title 4, art. 5, § 46, compiled from 2 Rev. Laws, 280, § 31; 1 Rev. Laws, 290, chap. 78, Laws 1813, § 28; 2 Rev, Laws, 138, chap. 49, Laws 1813, § 2; chap. 305, Laws 1840, Potter, Dwar. Stat. p. 156; Wood v. Wellington, 30 N. Y. 218; Dash v. Van Kleeck, 7 Johns. 497; Columbian Mfg. Co. v. Vanderpoel, 4 Cow. 556; Livingston v. Harris, 11 Wend. 329; Dexter & Limerick Plank Road Co. v. Allen, 16 Barb. 15-18: Daviess v. Fairbairn, 3 How. 636 (44 U. S. bk. 11, L. ed. 760). Even the board of supervisors bad jurisdiction to audit town accounts; the mere submission to that board at its annual meeting of all accounts of the County Treasurer would not constitute a sufficient audit of the Treasurer's | claim against the town. Independently of this consideration, the spirit and intent of the Act shows that the Treasurer Laws 1845, chap. 180, § 24, as amended by is entitled to his compensation at once. Laws 1847, chap. 490, § 2. Mr. H. E. Sickels, for respondent: The plaintiff is not authorized to maintain this action. Section 1925 of the Code provides for the cases in which a taxpayer may bring an action such as this, viz.: where the action is to obtain a judgment preventing waste or injury to the estate, funds or other property of the county, city or town. There is no waste or injury alleged in the complaint for which the plaintiff is entitled to any judgment. By the terms of the Act the defendant is obliged to publish the list returned by the town receiver with the description as contained in the assessment roll of the town." Laws 1878, chap. 226, § 1. In the case of Thompson v. Burhans, 61 N. Y. 62, it was held that the comptroller must sell by lots and description as sent to him and as assessed. The validity of the assessment cannot be determined in this action; it can only be done in a direct and appropriate proceeding for that purpose. Swift v. Poughkeepsie, 37 N. Y. 511; Western R. R. Co. v. Nolan, 48 N. Y. 513; Susquehanna Bank v. Supervisors, 25 N. Y. 312. The Act is imperative, in regard to lots struck down to the town. "On the day fixed for said sale, should no bids be made for any of the lots or parcels that may be offered for sale, the County Treasurer shall strike off such lots or parcels to the town in which such lands are located and assessed, for the term of one thousand years." Laws 1878, chap. 326, § 4. The same section also provides that the County Treasurer's fees and expenses of publication for "all lots or parcels struck off to any town shall be a charge against such town." Section 5 of the same Act declares that "in case of sale the Treasurer may charge and receive for each lot and parcel separately assessed and sold, the sum of $1.50, besides the sum paid for publication.* By the terms of the Act, the town is bound to pay to the Treasurer the sum allowed by law, for the lots and parcels of land sold by him to the town. By the decision of the court of appeals in People, Canajoharie Nat. Bank, v. Supervisors, 67 N. Y. 109, it would seem that the Acts of 1872, 1879 and 1880, as to suits by taxpayers, are unrepealed. The Act of 1881, chap. 531, does not alter the provisions of the Code as to waste" or "injury" but allows the action to be maintained in order "to prevent any alleged illegal official act." There is nothing alleged here that is illegal; in fact everything done by the Treasurer is in strict accord with the statute. The County Treasurer is entitled to charge and receive the fees allowed him, whenever and as soon as he performs the duty for the performance of which he is allowed compen 49 Laws 1878, chap. 229, § 2; Act 1878, § 4; 1 R. S. 3d ed. § 141, p. 892; § 2, subd. 3, p. 861. In view of the fact that the law, under which the Treasurer is proceeding, says that for all lots sold he is entitled "to charge and receive' certain fees and expenses, which are fixed by the statute, there is nothing left for the board. They have no power to alter or change the same. People, Downing, v. Stout, 23 Barb. 338; Morris v. People, 3 Denio, 381. There is a clear and specific method prescribed for the adjustment of the Treasurer's accounts; the case is not within the provision of the Code or the Act of 1881, as to suits by taxpayers. Lutes v. Briggs, 64 N. Y. 404. Finch, J., delivered the opinion of the court: The Act of 1878, chap. 531, expressly authorizes a taxpayer to maintain an action for the prevention and restraint of "any illegal official act" on the part of the officers of any county, town, or municipal corporation; and if the intended and threatened act of the defendant as County Treasurer is illegal, the plaintiff is entitled to sue and to prevent the meditated violation of law, irrespective of the consequences of such violation. The statute assumes that any illegal official act is or may be injurious to the corporation when done by its servant, and allows him to be restrained simply because of the illegality. The complaint here is that the County Treasurer has been in the habit of paying himself out of the trust funds in his possession the fees allowed by law upon sales of land for unpaid taxes, without previous audit of his claim, and alone determining the amount of the debt due from himself as trustee to himself as officer. He stands here upon his right, not denying his past habit or future purpose, but insisting that his conduct is not illegal, and so his action should not be restrained. The sale of lands for unpaid taxes in the County of Queens is the subject of a special statute. Laws 1877, chap. 268; Laws 1878, chap. 226. Under its provisions the receivers and collectors of taxes are required to report to the county treasurer all such taxes; the latter is directed to examine the list, and, having rejected therefrom such as cannot be lawfully enforced by reason of imperfect description or otherwise, to advertise them for sale. Pending the notice, owners or parties in interest may pay the taxes with charges and expenses; and the lands thus freed from liability must be withdrawn from the proceedings. The balance are to be sold by the treasurer at public auction for the shortest term of years for which any person will take the premises and pay the taxes with percentage, interest and expenses. In case no bids are made the Treasurer is commanded to strike off the land to the town in which it lies for a term of one thousand years, and in all cases of sales is to execute and deliver the proper leases. The Act allows the county treasurer as fees for his service $1 for every lot or parcel assessed which has been released by payment before sale; in case of sale $1.50 for each sep 877 arate lot and parcel assessed and sold; where a | Treasurer to collect from the trust funds the lease is given, $1 to be paid by the person re- fees in question without the audit of the town ceiving it; and for making and certifying a board. search $3. There is no difficulty and no dispute about these fees when actually paid by purchasers other than the town. Such fees belong to the treasurer and may be received by him and appropriated to his own use. They never become town or county funds or a part of the trust money in the officer's hands. But the situation is quite different where he strikes off the land to a town. In that event no money is paid or received, and the taxes and fees become purely matters of account. The statute provides that in such case the fees and expenses of publication shall be a charge against said town. They become a debt due to the treasurer, and are (when earned and expended) a claim in his favor against the town. Until it pays the charge the fees and expenses do not come to him as such or become his money. If he takes their amount from the trust funds in his custody without audit or direction, he simply collects his own debt against the town out of moneys already devoted to other specific purposes, and fixes for himself the amount of the debt which he assumes to collect. The statute provides that all claims against the town must be audited by the town board (Laws 1840, chap. 305), and for that purpose must be presented in items and verified by the oath of the creditor. Laws 1847, chap. 490, § 2. The officer repudiates the need of this audit. But the Act is broad and general, and admits of no exception unless as the product of some special legislation. Such exception cannot fairly be reasoned out of the Act of 1878. Its permission that the treasurer may charge and receive the fees allowed implies that somebody is to pay and is satisfied by an application to the cases in which the fees are paid as such. It is said there is no need of an audit because the amount is fixed. But the number of sales may be incorrectly asserted or the expenses unduly increased, and the auditing board has a right to be satisfied that the fees claimed have all been earned. It is suggested that the treasurer must collect his fees at once in order to correctly perform his duties, since on a sale he must make a certificate stating the amount of tax with interest and expenses added, so that one coming to redeem may know what to pay; and since the town may assign its certificate for the amount of bid, expenses and treasurer's fees with 12 per cent interest from the date of sale. In each case the fees of the treasurer are fixed, although he is not paid, and his duty is easily and may be correctly performed. Whether the town assigns or does not is its own concern, and does not affect its liability to the treasurer for the fees that he has earned. It is added that his accounts are annually subjected to the examination of the board of supervisors; but when they are, his voucher for a claim against the town should be the audit of its board. The Act of 1884 (chap. 484), now specifically requires such audit and makes certain for the future what was disputed in the past. It is easy to see the evils which might result from a contrary rule, and we deem it our duty to hold that the Act of 1878 did not authorize the The judgment should be reversed and a new trial granted, costs to abide ecent. All concur. PEOPLE, ex rel. Isaac W. PECK, Appts., C. COMMISSIONERS of Department of Fire and Buildings OF City of BROOKLYN, Respts. 1. Where a writ of certiorari was issued, directed to the commissioners of a department of a city, reciting that A, a duly appointed and acting detailed fireman of such department was, on a day named, removed from such position by such commissioners and commanding them to make return to the writ, and the affidavit states that he was removed without cause; and the commissioners return thereto only their resolution that A, "inspector of kerosene oil, be dismissed," such return is an admission that while A occupied the position of a detailed fireman in the department, he was summarily dismissed by such resolution. 2. Under section 2138 of the Code, where the return to a writ of certiorari meets all the allegations of fact contained in the writ and the papers on which it was granted and traverses them, then the hearing must be confined to the facts stated in the return. 3. 4. But where the return admits the facts stated in the writ or the papers on which it was granted, or is silent as to them, then such facts become important, and must be considered and have effect upon the hearing. Before any conviction can be had under section 14 of the Brooklyn Charter Act, the member of the department pro ceeded against is entitled to notice of the charge made against him, and to a hearing and trial; he cannot be arbitrarily dismissed without a charge. hearing or trial. (Decided June 7, 1887.) APPEAL from an order of the Supreme Court at General Term in the Second Department, affirming an order of the Kings Special Term in favor of respondents in a certiorari to review the action of the Commissioners of the Department of Fire and Buildings in the City of Brooklyn, in dismissing plaintiff from the office of kerosene inspector. Reversed. The facts and questions raised appear from the opinion. Mr. Edward F. O'Dwyer, for appellants: The appointment of the relator became a vested right, of which he could only be deprived (devested) upon charges, trial and conviction; and the right to such charge, trial and conviction is provided for by section 14 of title 13, chapter 863, Laws 1873, and is a substan |