Second Department, June, 1906. [Vol. 113. not represent the estate of which the said Charles S. Collyer was administrator; she simply represented the estate of Charles S. Collyer. (Mount v. Mount, 68 App. Div. 144, and authorities cited.) And so she was but a custodian of any property that came into her hands from the estate of which her husband was administrator. Section 2606 of the Code of Civil Procedure in part provides : "The Surrogate's Court has also jurisdiction to compel the executor or administrator or successor of any decedent at any time to deliver over any of the trust property which has come to his possession or is under his control, and if the same is delivered over after a decree, the court must allow such credit upon the decree as justice requires." justice requires." (See, too, Mount v. Mount, supra, and authorities cited.) I think, therefore, the surrogate could have determined this application on the merits. The appellant did not merely ask that Fanny Collyer, as executrix, should account once again as to what had been finally decreed during the administration of her husband, but that she should deliver over any of the assets of that estate which had come into her possession or were under her control. I think that the order must be reversed, with costs, on the ground that the learned surrogate had jurisdiction, and that the matter should, therefore, be remitted for a hearing upon the law and the merits. HIRSCHBERG, P. J., WOODWARD, HOOKER and MILLER, JJ., concurred. Order of the Surrogate's Court of Westchester county reversed, with ten dollars costs and disbursements, and matter remitted for hearing upon the law and the merits. App. Div.] Second Department, June, 1906. In the Matter of the Petition of THOMAS LITTLETON, Respondent, for an Order Amending Liquor Tax Certificate No. 31,497, and the Bond, Application and Papers upon Which the Same Was Issued by the County Treasurer of Orange County. PATRICK W. CULLINAN, as State Commissioner of Excise, Appellant. Second Department, June 8, 1906. Liquor Tax Law - error in certificate cannot be ordered corrected on motion, against the objection of the excise commissioner - relief is in equity. The court cannot on motion order a mutual mistake as to the street number of the premises for which a liquor tax certificate was issued to be corrected nunc pro tunc against the objection of the Commissioner of Excise. Such mistake can only be corrected in an action in equity. APPEAL by Patrick W. Cullinan, as State Commissioner of Excise, from an order of the Supreme Court, made at the Orange Special Term and entered in the office of the clerk of the county of Orange on the 4th day of November, 1905, directing that liquor tax certificate No. 31,497 be amended so as to correct the street number of the premises designated therein. William L. Thornton [William E. Schenck with him on the brief], for the appellant. Graham Witschief, for the respondent. JENKS, J.: The petitioner, who had been engaged in the traffic in liquor at No. 274 Washington street, Newburgh, for a number of years, filed his application, statement and bond for the purpose of a continuance. By mistake the premises were described in the application, statement and bond as No. 247 Washington street, and in due course a certificate was issued to him for traffic at a place thus numbered. Thereafter an inspector of excise discovered the mistake. Application was made to the department for a correction, but this was refused, with the requirement that the petitioner file a new application and bond and a petition for a transfer under section 26 of the Liquor Tax Law (Laws of 1896, chap. 112). As this required the payment of certain additional fees, the petitioner presented Second Department, June, 1906. [Vol. 113. a petition to the Special Term for an order for the authori ties and the surety to show cause why an order should not be granted to amend the certificate. The surety appeared and did not oppose. The Commissioner of Excise opposed, but did not present any affidavits. The Special Term ordered that upon the filing of a new application and bond with a correct designation by number of the premises, the outstanding certificate be amended nunc pro tunc. There can be no question but that the misdescription was a mistake pure and simple. Under the circumstances, I cannot see how any one would be harmed if the Commissioner, upon consent of the surety and the surrender of the outstanding certificate, had issued one, corrected as to the number of the premises. But that is his concern, and I have no intention to criticise his attitude. The mistake is mutual. Without consent of the parties, in any event the court could not in this special proceeding correct the mutual mistake as if it had held a trial in equity. ́I am constrained, therefore, to advise the reversal of the order, but without costs, and a denial of the motion, without costs. WOODWARD, GAYNOR and RICH, JJ., concurred. Order reversed, without costs, and motion denied, without costs. In the Matter of the Application of FRANK E. HAGEMEYER, Respondent, for a Writ of Mandamus against EDWARD M. GROUT, as Comptroller of the City of New York, and PATRICK E. LEAHY, as Deputy Collector of Assessments and Arrears of the Borough of Queens, Appellants. Second Department, June 8, 1906. Municipal corporations assessment for local improvements in city of New York - Laws of 1893, chapter 644, construed — only interest on annual installments due chargeable to landowners benefited mandamus will not lie to correct erroneous assessment. Chapter 644 of the Laws of 1893, which provides that an assessment imposed for local improvements in the city of New York may be divided into twenty annual installments, payable annually, "with interest," by the landowners benefited, must be construed to mean that a landowner is chargeable only with annual App. Div.] Second Department, June, 1906. interest on each installment as it becomes payable, and not that he is chargeable with interest on the whole balance to become due thereafter. But when by error the assessors have assessed interest on the whole balance against a landowner the act is quasi judicial and mandamus does not lie to compel the acceptance of a less sum. The remedy of a landowner is prescribed by title 3 of chapter 17 of the Greater New York charter and more especially by section 959 thereof. Said remedy is exclusive. APPEAL by the defendants, Edward M. Grout and another, from an order of the Supreme Court, made at the Queens County Special Term and entered in the office of the clerk of the county of Queens on the 9th day of December, 1905, granting a peremptory writ of mandamus directing the appellants to receive a certain proportion of an assessment as in full payment thereof. George L. Sterling [John J. Delany with him on the brief], for the appellants. George E. Blackwell, for the respondent. JENKS, J.: The dispute is over the amount required to discharge an assessment for a local improvement. The assessment was laid pursuant to chapter 644 of the Laws of 1893 which in part by section 7 directed that the assessors "shall divide the assessment or amount imposed upon any lot or parcel of land into twenty equal parts or annual installments, and in each year thereafter, for twenty years, shall assess an amount equal to one of said annual installments, with interest, upon the lots or parcels of land benefited by said improvement." The cause of the dispute is over the interest demanded by the collector of the relator seeking to pay a second installment. Aside from interest, the amount of such installment would be ninetytwo dollars. The relator insists that the proper sum payable is ninety-two dollars with interest thereon for one year at six per cent. The city officers contend that they were justified in charging interest at six per cent for one year upon the amount of the total installments remaining unpaid, or, in other words, upon nineteen-twentieths of the assessment. The learned Special Term held with the relator upon this question, and I think it was right. The contention of the city officers is based upon a principle rather than on the construction of the phrasing of the statute, inas Second Department, June, 1906. [Vol. 113. much as the learned corporation counsel, while not conceding that the statutory expression may not be read in accord with his contention, writes in his points: "All that is necessary in order to sustain this contention is to hold that the phrase 'with interest' modifies the earlier words assessment or amount imposed,' so that the meaning is with interest on the assessment or amount imposed." The principle invoked is that the evident purpose of the act was to reimburse the city for its expenditure, and it is asserted that in no way can this be done save by such imposition of such interest. The scheme of the act was to provide in general for local improvements to be paid for in the first instance by the issue of city bonds at not to exceed four and one-half per cent interest in series of not more than $50,000, a series being payable in each year after the lapse of five years, but the ultimate cost was to be assessed upon the lands benefited by the improvement. There is authority for the proposition that, when a municipality is authorized to borrow money to pay for a local improvement, it may include in its assessment the interest on the money so borrowed and so used. (County Commissioners, Petitioners, 143 Mass. 424, 433; Haverhill Bridge Proprietors v. County Commissioners, 103 id. 120; Davis v. Newark, 54 N. J. Law, 144, 146; State, Skinkle, pros., v. Clinton, 39 id. 656.) But it does not appear that the assessors sought to apply that principle in this assessment. In other words, they did not attempt to add to the cost of the work such sum of money as represented the interest, which the city would be required to pay at the rate of four and one-half per cent per annum on so much of the proceeds as were directed to this particular improvement before that part of the bonds were payable by the city, less the amount of interest at six per cent which the city might receive on any installments paid during the same period. To say the least such an adjustment would be difficult. Taxes "do not draw interest, as do sums of money owing upon contract; but only when it is expressly given." (Cooley Taxn. [3d ed.] 19.) And this principle has been applied, logically, I think, to local assessments of this general character. (Sergent & Co. v. Tuttle, 67 Conn. 167, and authorities cited; Brennert v. Farrier, 47 N. J. Law, 75, and authorities cited.) The legislative expression in this statute seems entirely clear. The words "with interest,” |