to the commencement of the suit. The demurrer was served on the ground that the complaint failed to state facts presenting a cause of action. The court held the objection to be without foundation, and overruled the demurrer. And final judgment was afterwards entered in the action. This decision has been objected to as erroneous, for the reason that the plaintiff should be restricted to the proceedings prescribed by this section of the act for the recovery of the money. But the section provides no further remedy than the service of the order on the officer who has received the money. If he declines to pay, as the comptroller has done in this case, the act provides no means which may be taken to oblige him to do so. And the only remedy therefore to to which resort can then be had, is that by way of an action to recover the money. The obstacle in the way of such an action has been removed by vacating the judgment, and the comptroller as the fiscal officer of the city has no longer any legal right to retain the money from the plaintiff. The case is similar to that presented by the reversal of a judgment after its collection by execution. There the party who has been obliged to make the payment may by action recover back the money so paid. Scholey v. Halsey, 72 N. Y., 578. And this principle has been applied to sustain the right to recover the amount of an erroneous assessment paid, after the proceedings have been reversed by the action of the court. Peyser v. Mayor, etc., 70 N. Y., 497. And its general application is sanctioned by Mason v. Prendergast, 120 N. Y., 536; 31 N. Y. State Rep., 497. Redress by action is all that has been secured to the plaintiff since the comptroller has declined to pay. The right of the plaintiff to maintain it is reasonably well sustained and the judgment should be affirmed, with costs. VAN BRUNT, P. J., and O'BRIEN, J., concur.

AUGUSTA C. GENET, App'lt, v. THE PRESIDENT, ETC., OF THE DELAWARE & HUDSON CANAL Co., Resp't.

(Supreme Court, General Term, First Department, Filed February 11, 1891.) REFEREE-APPOINTMENT OF NEW, ON ORDERING NEW TRIAL.

The court being of opinion that the new trial should be heard before another referee, judgment ordered resettled and amended by directing the trial to be before a new referee, to be appointed by the court.

APPEAL from an order denying motion for the appointment of a new referee to hear and determine this action. See 35 N. Y. State Rep., 552.

G. C. Genet, for app'lt; F. E. Smith, for resp't.

PER CURIAM.-It was the opinion of the court who heard the appeal in this action that the new trial should be before another referee than the one who had passed upon the issues involved in the action, and in order that there may be no doubt as to the power of the court to appoint a new referee, the order entered upon the reversal of the judgment should be resettled and amended by directing that the new trial be had before a new referee, to be appointed by the court.

Under these circumstances, the appeal taken from the order of the special term should be dismissed, without costs, and the order resettled in the manner suggested.

VAN BRUNT, P. J., DANIELS and O'BRIEN, JJ., concur.

In the Matter of the Petition of MATILDA MYERS for an Allowance, etc.

In the Matter of the Petition of LOUISA MYERS for an Allowance, etc.

(Supreme Court, General Term, First Department, Filed February 11, 1891.) EXECUTORS AND ADMINISTRATORS-INTEREST.

Where the executors permit the assets of a firm of which the deceased was a member to remain in a new firm formed immediately upon his death, but a portion of such assets carries no securities for customers of the new firm, and is no otherwise employed in its business than by being carried into its books, the executors cannot be compelled to pay full interest upon such portion.

SETTLEMENT of order. For decision on appeal, see 33 N. Y. State Rep., 977.

James Thomson, for petitioners; Edgar M. Johnson, for app'lts.

DANIELS, J.-Upon the proposal to settle the order directed for the disposition of the appeals in these proceedings, it was objected that the deductions mentioned in the opinion should not be made, and that this should be corrected by the order to be entered to carry the decision into effect. And the case has been re-examined on the suggestions of the counsel for the parties, to determine the soundness of this objection. And from the evidence of the executor, John A. Rutherford, there appears to be fair ground for advancing the item of $18,720.80, to the sum of $23,401, and advancing what has been called the J. R. account, from $96,660.36, to the sum of $120,825.43, which will bring the personal estate to the sum of $180,920.90, exclusive of the undivided half of the seat in the Stock Exchange, and the additional securities, in the suspense account, amounting to $10,503, making a large advance over the inventory of the appraisers.

For

But this balance of $180.920.90 still seems to exceed the amount upon which interest should be charged against the executors. it appears further from the evidence of the same person, who is the acting executor, that he is still keeping the securities and properties representing this one-half of the J. R. account, being the sum of $120,825.43, on hand, and that the new firm is not carrying any stock or bonds for any of its customers on that account. He further added that at the time of the decease of Mr. Myers, the testator, the firm was carrying stocks and bonds, but this J. R. account did not. If this account carried no securities for customers in the business at the time of the decease of the testator, and has carried none since, there seems to be reason for concluding that the new firm has derived no profit from it in its business which would justify the imposition of six per cent interest, on the amount of it, on the

executors.

The figures are given in the usual manner of complicating accounts entering into legal proceedings and it may be that they will justify a different result. But that is not at present apparent.

Neither the referee by his report, nor the decrees confirming it, contain any solution of this condition of the J. R. account. For they all proceed upon the theory that the value of the undivided half of the seat in the Stock Exchange, the additional securities in the suspense account, amounting to $10,503, and also those held in the J. R. account, should be deducted.

The referee has plainly enumerated these three items as items to be deducted. And then it has been further added:

Regarding the interest of the testator in Stock Exchange seat and the securities of the J. R. account, and suspense account above mentioned, and which securities are chiefly known as wild cat, I am of opinion that in view of the contest pending, regarding the probate of the will, and the nature of the securities, and under the circumtances disclosed by the evidence, no income has been derived from those securities, and that the executors have not been guilty of such negligence in failing to dispose of them as would render the estate or the executors liable for income on these amounts, and that the executors were entitled to use their judgment in disposing of them.

And these conclusions are in evident variance with that finally following, that the executors should pay interest at the rate of six per cent on the total amount of $180,000; for without the J. R. account that cannot possibly be their liability. If the J. R. account has carried no securities for the customers of the new firm, and been no otherwise employed in its business than by being carried into its books, then it is difficult to see how the executors are liable to pay the rate of six per cent interest upon it. The counsel may be able to show some mode through which that rate of interest may be imposed. And to present this opportunity, a re-submission of these appeals should be permitted, by briefs to be supplied in ten days after notice of this decision.

VAN BRUNT, P. J., and BRADY, J., concur.

LEOPOLD SCHEPP, Resp't, v. LEWIS E. MANLEY and THE SAMUEL CRUMP LABEL Co., App'lts.

(Supreme Court, General Term, First Department, Filed February 11, 1891.) ARBITRATION-REVOCATION-EFFECT OF.

Certain actions being pending between the parties hereto in relation to a contract, they entered into an agreement for the settlement of their differences by arbitration. Thereafter the agreement was revoked. Held, that the parties were thereby remitted to their original rights against each other, and that although they were still bound by stipulations in said instrument unconnected with the agreement to arbitrate, such stipulations created no independent right of action, and that this action to enforce the agreement and settlement could not be maintained.

APPEAL from a judgment recovered on trial at the special

term.

J. Hampden Dougherty, for app'lts; Theron G. Strong, for resp't.

DANIELS, J.-The action was brought to secure a judgment declaring an agreement entered into on the 11th of July, 1888, between the plaintiff and the Samuel Crump Label Company to be valid and binding and for a settlement of the controversies between the parties, and to restrain and enjoin the prosecution of an action brought by the defendant Manley as assignee of the company against the plaintiff, and to settle the disputes which had arisen between the plaintiff and the company. He had previously been engaged in manufacturing and selling desiccated cocoanut and pudding preparations, and the company had manufactured and delivered to him wrappers and labels used upon the packages in which these articles were contained and sold. Early in the year 1887 they entered into an agreement by which the company was to make and deliver to him 25,000 half pound and 25,000 pound cocoanut cartons. These articles were to be in the nature of samples of a new manufacture, and if they proved satisfactory, an order was to be placed with the company for a much larger quantity of the same or similar articles. The company entered upon the performance of this agreement and order, and continued to do that until about the close of the year 1887. On the 14th of November of that year a further agreement was made between the parties, by which the company was to manufacture 600,000 one-half pound and 100,000 one-pound pudding cartons. These were to be manilla-lined, coated one side and having a strawboard back. And early in the year 1888 the company began the delivery of these additional articles to the plaintiff, but disagreements arose concerning these, and also, as there is some reason for believing from the plaintiff's testimony, as to some of the other cartons made and delivered to the plaintiff.

The complaints, however, as to those made under the contract and order of the 14th of November, 1887, were more general and comprehensive, including certainly a very large number of cartons delivered and offered to the plaintiff, he complaining that they were not according to the agreement which had been entered into, and the president of the company insisting that they were manufactured as well as that could be done from the material mentioned in the contract.

The misunderstanding arising out of the objections made by the plaintiff continued until the early part of July, 1888. And on the 11th of that month these parties entered into an agreement for the adjustment of their differences. By this agreement it was: Agreed between Samuel Crump, president, in behalf of Sam`l Crump Label Co., and L. Schepp that the controversy now existing between them regarding cartons for cocoanut and puddings shall be settled on the following basis, viz.:

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"All cartons that have been used by L. Schepp shall be paid for at contract price, less fifty per cent. (i. e., half invoice price). Those that are perfect, and those that are not perfect, but can be made so, or like sample, are to be taken at full contract price.

"It is understood that there is no sample to guide regarding

the cocoanut cartons, and the umpire is to judge for himself what is a perfect carton. Those which are unmerchantable are to be discarded, i. e., imperfect.

"The expense attending the cartage to corporation yard and the railroad charges to Canada and Montclair, N. Y., are to be equally divided between Samuel Crump Label Co. and L. Schepp. "Each party to pay his own legal expenses.

"All labels are to be paid for in full.

"Cash to be paid by L. Schepp for the amount of the referee's award when the same is made.

"Each and every question mentioned and not mentioned in this agreement is left to Charles F. Conant if he will serve as referee, and if he will not serve we are to agree upon some other person, and the terms of this agreement shall be equally binding on us. And it is understood further that the referee has no power to make any reconstruction on anything that is provided for in this agreement.

"On the conclusion and settlement of this agreement L. Schepp agrees to withdraw all his claims for business damages.

L. SCHEPP.

SAM'L CRUMP, Prest."

In the first instance this instrument contains an agreement as to prices to be paid by the plaintiff and the obligation of the company concerning what should be found to be imperfect cartons. Then it was agreed, after providing for the payment of the expenses of taking a large number of cartons which had been unloaded upon the sidewalk in front of the plaintiff's store, and which he refused to receive, and for that reason they had been carted by the officials of the city to the corporation yard, that the labels which had been manufactured prior to making either of these agreements should be paid for in full, and then that the other questions between the parties, either mentioned, or not mentioned, in the agreement, were to be left to Charles F. Conant, or some other person in case he declined to act, as referee to settle and adjust them between these parties. Mr. Conant was willing to act in this capacity. But soon after the agreement was made differences arose between the parties to it concerning its construction and effect and the extent to which it should be applied. And these differences prevented the submission of the matters referred to in the agreement to Mr. Conant for settlement. And for that reason the president of the company, acting in its behalf, early in the year 1889 revoked the submission of these matters to the arbitrator or referee.

Mr. Conant wrote to him inquiring whether it was desired that he should act. And on the 28th of February, 1889, the president replied that they had commenced a suit, stating that as a reason for not proceeding with the arbitration. And on the 4th of March of the same year, in answer to another letter from Mr. Conant, the same fact was reiterated, as to which the president of the company added: "I suppose I am now relieved from any further acŃ. Y. STATE REP., VOL. XXXVI.

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