In the matter of Parish.

of administration. The appeal from the surrogate's decision stayed any action on the part of the executor, (3 R. S. 150,) and continued the special collector in the charge of the estate. . This order was no authority to the special collector to make any payments, and the order of the 31st December first adjusted any allowances, and ordered the same to be paid by the collector. The sole object of appointing the collector, is the preservation of the goods and property and the collection of the debts. (3 R. S. 161, § 39, 5th ed.) Such collector has no authority to pay debts or make any disposition of the funds, except to pay his own expenses. The statute authorizes him to collect the goods, chattels, debts, &c. of the deceased, and to secure the same at such expense as shall be allowed by the surrogate, and for such purposes to maintain suits; to sell such of the goods of the deceased as shall be deemed necessary for the preservation of the estate after appraisement; and on the probate of the will, to deliver to the executor all the estate of the deceased. It appears to me, therefore, that the special collector has no authority to make any payments, except such as are necessary for the collection and preservation of the property of the estate; and if he has no authority to pay, the order of the surrogate directing the payment was erroneous.

It is not necessary, now, to inquire whether the appellants may not hereafter, if these claims should be allowed by the executor, when he finally obtains letters testamentary, object to the accounts and the allowances on the executor's final accounting.

Whether the surrogate has any power to allow to a party who does not succeed in such a litigation his costs and expenses, is a question of much moment. By the statute, (3 R. S. 143, § 33,) where a will of personal estate is contested, and afterwards admitted to probate, the statute provides that the party contesting shall pay the surrogate's fees and expenses; and if the probate of a will should be revoked, the party who fails may be required to pay the costs personally, or out of

In the matter of Parish.

the estate. There is no provision for such allowances, in cases of wills of real estate. There is a manifest difference between the authority of the surrogate in admitting a will to probate, and the cases referred to by the counsel, where courts of equity have ordered the costs of construing a will, or adjudicating upon trusts, to be paid out of the estate. Such a power is conferred upon a court of equity, to be exercised according to the discretion of the court; but the surrogate's court obtains authority to award costs from the statute, (3 R. S. 367, § 25,) which says: "In all cases of contest before a surrogate's court, such court may award costs to the party in the judgment of the court entitled thereto, to be paid by the other party personally, or out of the estate. (See Shultz v. Pulver, 3 Paige, 185.) But in Burtis v. Dodge, (1 Barb. Ch. R. 91,) it was held he could not make arbitrary allowances. It is not necessary, however, to discuss this branch of the case, at present. I think it is apparent that the contestants, either for or against the will, have no claim to be paid out of the estate, until a final decision is made, so as to take the property out of the hands of the special collector; and an order directing him to pay costs and expenses to the litigants is erroneous, and should be reversed.

As the counsel for the appellants stated that it was not desired to interfere with the payments heretofore made by the collector, under the order of the surrogate, he should be protected as to such payments. So much of the order as confirmed the payment made by the special collector, under the order appealed from, is not to be affected by this appeal; and the order to be made reversing the order of the surrogate is not to affect such payments.

So much of the order of the surrogate as directs the payment of any moneys by the collector is reversed.

[NEW YORK GENERAL TERM, May 2, 1859. Davies, Ingraham and Sutherland, Justices.]

NOYES VS. BURTON and others.

A lien under the mechanics' lien law in the city of New York ceases, after one year from the time of filing, unless the party filing it commences proceedings in the court of common pleas, within that time, to bring it to a close. And the fact of the person asserting the lien being made a party to an action to foreclose a mortgage upon the property, will not relieve him from the consequences of his neglect to bring the lien to a close.

During the year, the supreme court can recognize the lien as existing, and can continue the lien on the property, or keep its proceeds in court, subject to the lien, if proper proceedings are taken to enforce it; and it may, perhaps, obtain jurisdiction so far over the subject matter as to order the lien to be discharged by payments, if it is brought to a close within the year, or if proceedings are still pending for that purpose. But it can give no judgment ordering the property to be sold to satisfy the lien, either before or after the year expires.

A lien under the mechanics' lien law cannot be asserted where the person alleged to be the owner of the premises did not hold the fee at the time the notice of lien was filed, he having previously conveyed the premises to another. An innocent purchaser from a person obtaining his title and having his deed recorded previous to the filing of a notice of lien, is not bound to take notice of any lien filed after his grantor's deed was recorded.

A

PPEAL from an order made at a special term, upon the report of a referee. The facts are detailed in the opinion of the court.

By the Court, INGRAHAM, J. On a reference to ascertain who was entitled to the surplus on a sale of mortgaged premises, Bailey, one of the defendants, claimed the amount due him under the mechanics' lien law, for work done upon the premises sold. This work was done for Wm. L. Johnson, contractor with Warren Beman and Josiah H. Burton, and the notice of lien was filed on the 28th of September, 1857. Beman never held the title of the property. Burton, in whom the title was, conveyed the premises to Leeds by deed, May 16, 1857, which was recorded May 20, 1857, and Leeds conveyed. the premises to Ogden, February 1, 1858, by deed recorded February 19, 1858.

On the hearing before the referee, Bailey offered to prove the facts necessary to sustain a lien against Burton and a con

Noyes v. Burton.

tract with Beman, made by Burton for the sale of the premises, and that the conveyance to Leeds was intended to defraud the workmen out of their liens. No offer was made to show that Ogden was cognizant of these facts.

It appears to me there are several reasons why Bailey's lien cannot be enforced. 1. The lien has expired By the statute the lien ceases after one year from the time of filing, unless the party filing it within that time commences proceedings in the court of common pleas, to bring it to a close. (Sess. Laws of 1851, p. 954.)

The fact of his being made a party to this action does not relieve him. The lien still ceases after a year, because he has not done what the statute declares to be necessary to continue the lien in force after that period. During the year this court could recognize the lien as existing, and could continue the property, or keep its proceeds in court subject to the lien, if proper proceedings were taken to enforce it; and might, perhaps, obtain jurisdiction so far over the subject matter as to order the lien to be discharged by payment, if it was brought to a close within the year, or if proceedings were still pending for that purpose. But they could give no judgment ordering the property to be sold to satisfy the lien either before or after the year expired, because that judgment can only be rendered by the common pleas, and the proceeding is not one known to this court or the common law.

2. Another reason why the defendant Bailey is not entitled to a share of the surplus is, that neither Beman nor Burton held the fee at the time of filing the notice of lien. Burton had some months previously sold the property to Leeds, whether fraudulently or not is immaterial; because Ogden had purchased from Leeds innocently, for value and without notice of the lien. He had no notice of the filing of the lien in September, because Leeds obtained the title previously; and whether he held it for Burton or not, Ogden not knowing that fact, was not bound to take notice of any lien filed after Burton's deed was recorded.

Jones v. New York and Erie Rail Road Company.

3. Even if Ogden had knowledge of the fraud, the conveyance was good between the parties. The creditors had their remedy in an action for equitable relief, but if, instead of resorting to that remedy, they neglected their rights, and suffered their lien to expire, it is now too late to ask the court to enforce it.

I see no ground upon which Bailey is entitled to relief. The ruling of the referee was right, and the order made by him should be affirmed.

[NEW YORK GENERAL TERM, May 2, 1859. Roosevelt, Ingraham and Pratt, Justices.]

JONES VS. THE NEW YORK AND ERIE RAIL ROAD COMPANY.

In an action against a rail road company, for negligence in not conveying a quantity of dried apples to market, within a reasonable time, the plaintiff cannot recover as damages the difference between the price of dried apples at the time the property in question should have been delivered, and the price at the time when the property was in fact delivered.

The decision in Wibert v. The New York and Erie Rail Road Company, (19 Barb. 36,) reaffirmed; and the case of Kent v. The Hudson River Rail Road Company, (22 Barb. 278,) disapproved.

A

PPEAL from a judgment of the county court, affirming

the judgment of a justice of the peace. The plaintiff delivered to the defendants, at Dunkirk, 3146 pounds of dried apples to be transported to the city of New York. He alleged in his complaint that they were to be delivered in New York in four days from 7th December, 1857, and at the price for transportation of 60 cents per 100 pounds. The apples were delivered to the defendants, at Dunkirk, on the 4th, 5th and 7th days of December. They were shipped in two cars which left Dunkirk on the 8th of December. The day the apples were to leave, the plaintiff inquired of a clerk or clerks in the office at Dunkirk, how long it would take to get the apples