Cases DETERMINED IN THE SECOND DEPARTMENT IN THE APPELLATE DIVISION, June, 1902. BEATRICE PRESSWOOD KING, Appellant, v. ARTHUR R. KING, Respondent. Promissory note—where a one-fifth interest is assigned to each of five several parties, each party cannot maintain a separate action to recover his fifth. Where an executor accepts a promissory note in payment for property belonging to the testator and thereafter, there being no other assets of the estate and no creditors, assigns one-fifth of such promissory note to each of the five beneficiaries of the estate and himself retains possession of the note, each of the five beneficiaries is not entitled to maintain a separate action against the maker of the note to recover the one-fifth part thereof assigned to him, as the obligation of such maker is single and cannot be divided into parts. APPEAL by the plaintiff, Beatrice Presswood King, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 3d day of February, 1902, upon the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk's office on the 3d day of February, 1902, denying the plaintiff's motion for a new trial made upon the minutes. Frank Harvey Field, for the appellant. Daniel E. Delavan, for the respondent. GOODRICH, P. J: On a former appeal from an order granting a motion to amend a warrant of attachment (59 App. Div. 128) we held on authority SECOND DEPARTMENT, JUNE TERM, 1902. that an assignment of a portion of a debt is valid. [Vol. 73. "Whether the plaintiff," said Mr. Justice HIRSCHBERG, writing for the court, "can successfully enforce her rights in the action without bringing in the other beneficiaries is not now considered or determined." The present appeal brings up this question. Mr. Morse, one of the executors of the will of Robert King, deceased, accepted from the defendant his note for $9,000, dated May 1, 1878, payable to "Morse, Executor,' or order,” for the purchase price of the interest of the decedent in the business of the firm of Robert King & Son. In November, 1900, Morse, by written assignment to the plaintiff, transferred one-fifth part or portion of the said promissory note and all moneys due thereunder. Some payments have been indorsed upon the note, and the plaintiff brings this action to recover one-fifth of the balance remaining unpaid. The defendant set up the Statute of Limitations and pleaded that Mr. Morse and his co-executor were the real parties in interest, no settlement of the estate having been made. The note was produced at the trial, but there was no indorsement by Morse, who testified that the note had not been delivered to the plaintiff, but had always remained in his possession; that he had assigned one-fifth part of it to each of the five beneficiaries of the estate. There is no other property of the estate and there are no debts. At the trial the defendant moved to dismiss on the grounds "that the plaintiff had failed to make out a cause of action; that the plaintiff was not entitled to maintain this action; that the plaintiff was not the real party in interest; that George F. Morse was the real party in interest, and that under the Negotiable Instruments Law* a part of this instrument cannot be transferred; there must be an indorsement of the entire instrument completed by a delivery in order to effect a negotiation and to entitle the plaintiff to maintain the action." Each party also moved for the direction of a verdict, and the court subsequently directed a verdict for the defendant. The decision of the learned justice rests upon the ground that the obligation of the defendant is single and cannot be divided into parts; that only one action can be maintained for the debt in its *Laws of 1897, chap. 612, § 62.- [REP. App. Div.] SECOND DEPARTMENT, JUNE TERM, 1902. entirety. This is sustained by clear authority so far as an action at law is concerned. (Chambers v. Lancaster, 160 N. Y. 342; Secor v. Sturgis, 16 id. 548.) The judgment and order must be affirmed. All concurred. Judgment and order affirmed, with costs. CHARLES E. GRIFFITH, Respondent, v. THE CITY OF NEW YORK, Appellant. Health board of a village - expenses incurred by it must be paid, although the appropriation therefor has been exhausted. Section 30 of the Public Health Law (Laws of 1893, chap. 661, as amd.), which APPEAL by the defendant, The City of New York, from a judg ment of the Supreme Court in favor of the plaintiff, entered in the SECOND DEPARTMENT, JUNE TERM, 1902. [Vol. 73. office of the clerk of the county of Richmond on the 13th day of February, 1902, upon the decision of the court rendered after a trial at the Richmond Trial Term before the court without a jury. James McKeen, for the appellant. James Burke, Jr., for the respondent. GOODRICH, P. J.: In this action, tried before the court without a jury, the following facts were found: The defendant, by the Greater New York charter (Laws of 1897, chap. 378), which took effect January 1, 1898, has become liable for the legal obligations of the village of Port Richmond. Between September 1 and December 30, 1897, one Humphreys was employed by the board of health of said village as clerk to the board at a salary of $75 per month, and the board of trustees, on December thirtieth and thirty-first, audited and allowed the claim and issued and delivered to Humphreys warrants directing the treasurer of the village to pay him $300 out of the moneys in his hands on account of the board of health. Such warrants were indorsed and delivered to the plaintiff, who, in March, 1898, filed his claim on said warrants with the deputy auditor of the city of New York, for the borough of Richmond, and such claim has not been paid. Prior to September 1, 1897, the village had expended on account of the board of health $1,141.55 for the year 1896 and $1,226.91 for the year 1897, leaving no money in the hands of the treasurer on account of the board of health. The court found as conclusions of law that the Public Health Law (Laws of 1893, chap. 661, as amd.) supersedes the village charter (Laws of 1866, chap. 792), and that the fact that the amount expended by the village on account of the board of health prior to the rendering of services by Humphreys exceeded the amount permitted by the charter of the village, was not a defense to the action. Judgment having been directed and entered for the plaintiff, the city appeals. The question involved is whether section 30 of the Public Health Law repealed section 17 of the village charter. Section 17 of the village charter reads as follows: App. Div.] SECOND DEPARTMENT, JUNE TERM, 1902. "§ 17. Money cannot be borrowed on the credit of, nor can any debt be created in behalf of the village, payable at a future time, nor can any debt or liability be incurred by the village except for the ordinary expenses of the village, within the income of the current year applicable to that purpose, nor can any money or property of the village be appropriated or applied for any purpose except as authorized by this act, except that when the raising of money for a special purpose shall be ordered, as provided in this act, the amount may be borrowed or a liability by contract for the special purpose may be incurred, not exceeding the expense ordered, until the amount can be raised by tax as before provided." 66 Section 30 of the Public Health Law reads thus: "§ 30. Expenses, how paid. All expenses incurred by any local board of health in the performance of the duties imposed upon it or its members by law shall be a charge upon the municipality, and shall be audited, levied, collected and paid in the same manner as the other charges of, or upon, the municipality are audited, levied, collected and paid. The taxable property of any village maintaining its own board of health shall not be subject to taxation for maintaining any town board of health, or for any expenditure authorized by the town board of health, but the costs and expenditures of the town board shall be assessed and collected exclusively on the property of the town outside of any such village." In Kent v. Village of North Tarrytown (50 App. Div. 502) we affirmed an interlocutory judgment of the Special Term, Mr. Justice HIRSCHBERG presiding, sustaining a demurrer which raised the question whether the complaint stated a cause of action. Mr. Justice HATCH wrote the opinion for this court, which adopted the opinion of the Special Term. That opinion cited the case of Matter of Taxpayers of Plattsburgh (157 N. Y. 78). Both cases involved the question whether the Public Health Law repealed sections of village charters analogous to that here presented; and it was held that the provisions of the Public Health Law must be regarded as in the nature of an amendment or at least a part of all municipal charters, and that it becomes the duty of the municipal authorities to comply with the orders of the local board of health whether there is any provision to that effect in the charter or not. The services of Humphreys were rendered in pursuance of the |