the objection and rendered the exception which was taken conspicuously frivolous.

Evidence was proposed to be given, and was given, but afterwards stricken out by the court, of conversations which were stated to have taken place between these parties prior to the time of the execution of the contract concerning the right of the defendant to receive orders for the class of work included in the business transferred to the plaintiff. And exceptions were taken to the rulings of the court upon this subject. These exceptions are without legal support, for the reason that whatever was said between the parties prior to the execution of the contract was afterwards merged in the instrument itself.

Exceptions were also taken to questions which were propounded to the defendant on his cross-examination concerning business transacted by him which was claimed to have been in violation of this contract after the commencement of the suit. But these inquiries were admissible for the purpose of affecting the credit of the witness himself. And they did tend to indicate some improbability of statement upon his part in giving the evidence which had been obtained from him on his direct examination.

An exception was also taken to the exclusion of a statement made by the attorney, Mr. Clapp. But as this was in the absence of the plaintiff, and the attorney was not shown to be authorized to compromise him by any statement he might make, the evidence was rightly excluded.

A further exception was taken to the exclusion of evidence from the defendant's partner as to orders received and filled for zink etchings for the defendant and his partner. The exclusion of this testimony had no practical effect on the disposition of the defendant's rights, for it did appear by evidence which was received that the plaintiff had from time to time after the purchase of this business received orders from the defendant, or his firm, for this description of work, and that they were performed and paid for by that firm. This evidence was not of any substantial importance in the disposition of the case, for the right of the plaintiff to maintain the action was not placed upon orders obtained by the defendant in this manner. No complaint whatever as to such orders was at any time made by the plaintiff. But what the action was made to depend upon was the other evidence in the case tending to prove the fact that the defendant had, without authority from the plaintiff, carried on this same line of business between the time when he sold out to him and the commencement of the action. Other exceptions have been presented concerning other rulings made as to the production of evidence on the trial, but they have no more merit certainly than those which have already been referred to.

The case appears to have been correctly disposed of at the trial, and the judgment and order should be affirmed, with costs. VAN BRUNT, P. J., and BRADY, J., concur.

WILLIAM E. D. STOKES, Resp't, v. ANSON P. STOKES et al.,

App'lts.

(Supreme Court, General Term, First Department, Filed February 11, 1891.) 1. PARTNERSHIP-ACTION FOR ACCOUNTING.

A member of a partnership assigned an interest therein, and in its accumulated profits, to his son, and soon thereafter died, and subsequently another partner died. In an action for an accounting brought by the son, Held, that the action could be maintained.

2. SAME-PARTIES.

The surviving partners held the assets in trust for the son, and for the legal representatives of the deceased partners as well, and hence the execu tors of the deceased partner were necessary parties to the accounting. APPEAL from interlocutory judgment overruling a demurrer interposed to the complaint.

E. W. Sheldon, for app'lts; W. G. Choate, for resp't

VAN BRUNT, P. J.-This action was brought by the plaintiff for an accounting in respect to the copartnership dealings and transactions of the firm of Phelps, Stokes & Co., from the time of the commencement thereof to the time of its dissolution.

It appeared from the complaint that James Stokes, Isaac N. Phelps and Anson P. Stokes entered into copartnership, the articles concerning which were in writing and which provided that said copartnership should commence on the 1st of January, 1879, and continue for five years unless terminated by the death of Anson P. Stokes or by a written notice of either of the partners to the other members of the firm of at least six months of the termination of said firm. Shortly after its formation the defendant Olcott was admitted as a copartner in said firm, but such admission presents no question raised by this demurrer.

On the 18th of November, 1880, James Stokes assigned and transferred to his son, William E. D. Stokes, the plaintiff, an undivided fifth part of his interest in said firm, together with all profits accrued thereon since January 1, 1879, the formation thereof.

In 1881 James Stokes died, leaving the defendants, Anson P. Stokes and Frederick P. Olcott and Isaac N. Phelps, the sole sur viving partners, and the said Phelps died in August, 1888, leaving Anson P. Stokes and Frederick P. Olcott sole surviving partners, and also leaving a will which was duly proved upon which letters of administration were issued to the appellants. The defendants, the executors of Phelps, interposed a demurrer to the complaint upon the ground that the complaint as against them failed to state facts sufficient to constitute a cause of action.

This demurrer was overruled and from the judgment thereupon entered this appeal is taken.

From an examination of the authorities cited by the appellants it appears that they claim that because the plaintiff, by reason of the assignment from his father, did not become a partner in that firm, he had no right to maintain this action.

It is clear that by such assignment he obtained no rights as a

partner and was not responsible for the debts of the firm, as is held in the case of Burnett v. Snyder, 81 N. Y., 555. And in none of the cases cited upon the part of the appellant is it held that the assignee of the interest of a partner, upon the dissolution. of the firm, has no rights which he may enforce against the survivors. In the case of Hooley v. Gieve, 9 Daly, 104, affirmed upon the opinion of the court below, 73 N. Y., 599, it is expressly held that upon the death of a copartner the surviving partners became trustees of the partnership fund, not only for the creditors, but for the personal representatives of the deceased partner, and that the entire assets of the firm subject to the payment of its debts became impressed with a lien in favor of the representatives of the deceased partner to the extent of the share of the deceased partner in the firm's assets.

Now in the case at bar the plaintiff is a representative of the deceased partner, James Stokes, by assignment; and if the assets in the hands of the surviving partners are impressed with a lien in favor of the deceased partner, it is clear that he has a right and interest in the assets belonging to the firm, and having such right or interest as one of the personal representatives of James Stokes, deceased, he certainly can maintain the action for an accounting, in order that that interest may be ascertained.

It is an elementary rule of law that a cestui que trust may call his trustee to an account, and that is precisely the relation which existed between these surviving partners and the plaintiff, as assignee of James Stokes, deceased.

But it is insisted that the appellants are the executors of a partner who, surviving James Stokes, died since his decease, and therefore they have no interest in this controversy. Upon the contrary, these executors are cestuis que trust precisely the same as the plaintiff.

Anson P. Phelps and Frederick P. Olcott, the sole surviving partners of the firm, hold the assets of the firm as trustees of the representatives of the deceased partners, of whom Isaac N.Phelps is now one. In order that the accounts of the firm as between the various claimants upon the same may be settled, it is necessary that all the cestuis que trust be before the court, and, therefore, these executors are necessary parties defendants. The plaintiff has stated a cause of action as against them; he has shown by the allegations in the complaint that they are necessary for a complete determination of these accounts.

If there had been any doubt in regard to the proposition hereinbefore stated, it is distinctly held in the case of Menagh v. Whitwell, 52 N. Y., 146, that the assignee of the interest of a partner is entitled to an account of the dealings of the firm from its other members, and to share to the extent of the assignment in the surplus of the property of the firm.

It seems to us, therefore, both upon principle and authority, that the plaintiff is entitled to an account and that he is entitled to bring in all those who are interested in the surplus of the property after the payment of the debts in order that there may be a complete determination of the rights of all the parties, and the

fact that by the assignment he never became a partner in no way deprived him of this right.

It would be difficult to say why a partner has not the right to assign his interest in a firm, and if he has that right, why his assignee has not the right to call upon a court of equity to determine the extent of his interest, which can only be done upon a settlement of the affairs of the firm.

We are of opinion, therefore, that the judgment should be affirmed, with leave to the defendant to answer within twenty days upon payment of the costs of the demurrer in the court below and of this appeal.

BRADY and DANIELS, JJ., concur.

THE PEOPLE ex rel. ANNA M. DEAN, App'lt, v. THE Board OF ASSESSORS OF THE CITY OF NEW YORK, Resp'ts. (Supreme Court, General Term, First Department, Filed February 11, 1891.) 1. NEW YORK CITY-CLOSING OF STREETS-NOTICE.

In chap. 697, Laws of 1867, relating to the closing of streets in New York city, it is provided that all damage shall be ascertained in the manner prescribed by SS 3 and 4 of chap. 52, Laws of 1852; this latter act provides that the defendants shall make to the owner a just and equitable award for his loss and damage, but does not provide a method. Held, that the duties of the defendants were judicial and the proceeding was of the character of that of commissioners appointed to assess the value of land taken under the power of eminent domain. That, therefore, claimants were entitled to notice and were entitled to be heard before an award made; that it was error to make an award and then call upon them to contest it if they saw fit.

2. SAME-AWARD.

It is error for the assessors in making an award, to consider benefits arising from opening new streets, such benefit having been already paid for once by the owner.

3. SAME.

It is error to deduct the value of the land which the owner obtained by closing the street although it is proper to consider what it was worth to him to have the land freed from the public easement. 4. SAME.

The value of land should be taken as of the time of the filing of the report of the commissioners.

CERTIORARI to review proceedings of the board of assessors in awarding compensation for the closing of the Kingsbridge road. J. A. Deering, for app'lt; G. L. Sterling, for resp'ts.

VAN BRUNT, P. J.-In view of the conclusion at which we have arrived, it will not be necessary to discuss in detail many of the questions presented by the counsel to the court.

It would seem from an examination of the authority conferred upon the board of assessors that there has been an entire misapprehension by the board of the nature of their duties and of the rights of claimants to damage.

It seems to have been assumed that the powers and duties conferred upon them in reference to passing upon claims for damages because of the closing of streets were similar to those strictly per

taining to their office, viz.: the making of estimate and assessment for paving, regulating and repairing streets, relaying pavements, constructing sewers, etc. A very brief examination of the law under which the respondents were carrying on these proceedings will show that such a view was entirely erroneous. By the act of 1867, which provided for the allowance of compensation for the closing of streets, it was provided that all damage by reason of the closing of a street should be ascertained and paid in the manner specified in §§ 3, 4 of the act entitled "An act to make permanent the grades of streets and avenues in the city of New York,' passed March 4, 1852. The act of 1852 provided that in all cases where the grade of any street or avenue now established shall be changed or altered in whole or in part it shall be the duty of the assessors appointed to estimate and assess the expenses of confirming such change of grade and regulating the street or aveenue in accordance therewith (namely, the board of assessors), to estimate the loss and damage which each owner of land fronting on such street will sustain by reason of such change to such lands or to any improvements thereon, and make a just and equitable award of the amount of such loss or damage to the owner or owners of such lands, etc. The act contains no provision as to the method in which they are to proceed in ascertaining this damage and making this award.

* * *

It will be at once seen that under these circumstances the board of assessors occupied the position of commissioners to ascertain the damage done by a public improvement, and their proceeding seems to be of the same character as that of commissioners appointed to assess the value of land taken under the power of eminent domain.

This view of the duties of this board, under these circumstances, is specially recognized in the case of the People ex rel. Heiser v. Gilon et al., 121 N. Y., 551; 31 N. Y. State Rep., 890, where, under a special act in reference to the change of grade of the Eighth avenue, the board of assessors proceeded to award compensation to owners fronting upon the avenue. In that case the authority conferred upon the board of assessors being the same as is conferred by the legislation above referred to, the court held that the duties which the board was required to perform were essentially judicial in their nature, and that these judicial functions could not be properly performed in contemplation of the law without giving the parties interested some notice of the time and place of the hearing and an opportunity to be heard. And it is plainly intimated in that case that this time and place of hearing and opportunity to be heard shall be before an award shall be completed; for the court say, that the notice in that case was defective because it called for objections to the assessment made, not proof or arguments in support of a claim for damages. In other words, the party affected is entitled to notice to present his claim and not to notice to present his objections to an award already determined upon. In this the proceeding is entirely different from those which the board pursue under the statute in the levying of an assessment. The board levies the assessment in the latter case and then