inally instituted. The order of severance contemplated an amendment of the form of the application, its substance remaining unchanged, and the court had power to make such order.

Order of General Term, reversing order of Special Term reducing assessment, reversed, and order of Special Term affirmed.

the testimony of experts. Great caution should be exercised by the Courts in requiring parties to furnish particulars in actions for damages resulting from negligence. It is usually impossible for a plaintiff to know, with any degree of precision, what his proof will be, and the bill of particulars would, in most cases of that character, be an

cur.

BILL OF PARTICULARS.

N. Y. SUPREME COURT. GENERAL TERM. SECOND DEPT.

George J. Muller, respt., v. The Bush & Denslow Mfg. Co., applt.

Decided Dec., 1884.

In an action to recover damages to plaintiff's real estate, caused by an explosion of de

Bernard Reilly, late Sheriff,

required to furnish a bill of particulars.

Appeal from order denying motion for bill of particulars.

Action to recover damages sustained by reason of injuries to plaintiff's house, caused by an explosion of defendants' oil works.

The complaint stated the injuries with considerable particularity and the amount of damage sustained.

Held, That this is not a case where plaintiff should be required to furnish particulars. The action is for damages which plaintiff cannot specify with certainty; the amount will depend on proof to be furnished after examination of the

applts.

Decided Jan. 9, 1885.

In an action by a sheriff against the sureties on a bond indemnifying him from the consequences of levying upon and selling under an execution certain goods claimed by a third person to belong to him and not to the judgment debtor, the fact that the sheriff levied upon and sold more goods than was necessary to satisfy the judgment is no defence when the costs and expenses incurred by the sheriff in an action for conversion brought against him by such third person amount to the penalty of the bond.

Appeal from a judgment recovered on the verdict of a jury, and from an order denying a motion for a new trial.

The appellant, Moffat, had re

was issued thereon to plaintiff, who was then sheriff of the County of New York. There were certain goods apparently belonging to O.,but claimed by his wife, upon which Moffat wished the sheriff to levy, and for that purpose he and the other defendants executed a bond in the sum of $1,200 to indemnify the sheriff against the consequences of a levy upon and sale of such property.

After receiving the bond the sheriff levied upon and sold said property, and realized from the sale the sum of $359.05, and that, after paying the amount due upon the execution and his fees, together with other charges made, left in his hands a surplus of $83.12. Subsequently the wife of O. brought an action against the sheriff to recover the value of the property so sold by him, in which she recovered judgment for such value and $615.75 costs. This judgment was paid by the sheriff and the costs included therein, together with a counsel fee of $500, and other expenses amounted, in the aggregate, to $1,214.97. The sheriff then commenced this action upon the bond of indemnity given by defendants. The defense set up was that the levy was excessive. Upon the trial the Court directed a verdict for plaintiff for $1,016.88, that being the amount of the penalty of the bond, less $100, admitted to have been paid, and $83.12, proceeds of the sale remaining in the sheriff's hands, upon the ground that

such costs and expenses amounted to the penalty of the bond.

P. W. Ostrander, for applts. Henry Thompson, for respt. Held, That, although the sheriff made an excessive seizure of property under the execution issued to him upon the original judgment, his action for indemnity upon the bond could not for that reason legally be defeated, for the difference between the amount of property which should have been levied upon to satisfy the execution and which was actually seized and taken did not enter in any form as an item in the recovery in the action. That that, on the contrary, was made up entirely of the costs incurred in the action brought against the sheriff, his disbursements in the litigation, and the amount properly chargeable for the services of his attorney and counsel, and they would necessarily have been the same even if he had levied upon no more property than was required to satisfy the execution and the legal expenses. That the direction of the verdict was entirely right according to the facts proved in the case.

Judgment and order affirmed. Opinion by Daniels, J.; Davis, P. J., and Brady, J., concur.

TAX SALES.

N. Y. SUPREME COURT. GENERAL
TERM. SECOND DEPT.
The People ex rel John Andrews,

troller, applt.

Decided Dec., 1884.

To entitle a party to a mandamus under Chap. 388, Laws of 1884, to compel the Comptroller of the City of Brooklyn to repay to him monies paid by him on account of void sales for non-payment of taxes, he must show affirmatively that the sale was void for the failure of the assessors to verify the roll, and that the payments were made on account of the pur

chase.

Appeal from order granting application for a mandamus, under Chap. 388, Laws of 1884, commanding the Comptroller of the City of Brooklyn to pay to relator the sum of $1,321.51 on the surrender of his certificates of sales and the execution of a release.

The affidavits used on the application consisted of one made by relator, in which he stated that he was the assignee and owner of two certificates of sale and purchase for unpaid taxes for the year 1868 and payments thereunder; the purchase price appearing on the face thereof, and "that there was paid for taxes and assessments by the purchaser thereof, and said payments appear upon said libers of sales of taxes in the office of the Registrar of Arrears," certain specified sums, and also an affidavit made by one N, a clerk in the office of the Registrar of Arrears, that the taxes stated to have been paid are entered in the liber of sales in a column headed simply "Taxes or assessments paid by purchaser." The motion was granted.

the certificates on which the claim is founded must be for a sale which is void by reason of the failure of the assessors to verify the assessment rolls and yet the affidavits on which the order is made neither of them contain any such allegation. Plain it is that the Comptroller was clothed with authority to pay only on void certificates, and that was the sole and only end and aim of the statute. It was eminently just that persons paying money into the treasury of the city under sales for taxes which would confer no title should have returned to them the money paid on such purchase. It would be unjust to replenish the treasury of the city by a retention of purchase money for which no property could be delivered. But it would be equally improper to extract money from the treasury on valid certificates. Therefore, the party claiming the benefit of the law must be required to bring himself clearly within its provisions. Relator has failed to do this by a failure to allege that the sales for which he holds certificates were void.

It is also extremely doubtful whether in any case the holders of certificates can claim more under this statute than the amount paid on account of the purchase, exclusive of the amount paid to extricate their title subsequent to the purchase.

Order reversed with costs.
Opinion by Dykman, J.; Pratt,

SUPPLEMENTARY PRO

CEEDINGS.

N. Y. SUPREME COURT. GENERAL TERM. THIRD DEPT.

John Hayes, respt. v. Charles McClelland.

Decided Jan., 1885.

Under § 2447 of the Code an order directing a third-party to deliver property of a judgment debtor in his hands to plaintiff, can only be made where the right to the possession of the property is not substantially disputed.

So, where the Recorder of Cohoes had in his hands moneys deposited with him by defendant to secure his release from jail, to which he had been committed as a disorderly person, although the Statute required a bail bond and did not recognize a deposit in such cases; but the Recorder formally declared the money forfeited to the city, and now insists that he holds it for said city. Held, That an order under § 2447 requiring him to pay over said deposit was improper.

Plaintiff had a judgment against defendant and instituted supplementary proceedings. Under § 2447 of the Code, a County Judge made an order requiring a third party, the appellant, Recorder of Cohoes, to pay over certain moneys of defendant, in his hands, to plaintiff. No receiver has been appointed. The moneys came into the Recorder's possession in this way. Defendant was arrested as a disorderly person. By Laws of 1880, Ch. 456, 30, this Recorder may permit the enlargement of a prisoner upon his executing a bond in $500 with one or more sureties. There does not appear to be any other provision of law on this subject relative to the Recorder of Cohoes. When defendant was

Vol. 20.-No. 17a.

arraigned he could get no bondsmen and the recorder said he might go if he deposited $200. This he did. Upon the adjourned day defendant did not appear and never has been seen since. The Recorder then and there declared the $200 forfeited to the city of Cohoes. He now insists that he holds this money for the city. Plaintiff insists that the Recorder's act in allowing a deposit was utterly void. The Recorder appeals from the order of the County Judge requiring him to pay a part of this $200 to plaintiff. The city of Cohoes does not appeal.

H. A. Strong, for applt.

P. D. Niven, for respt. (plff.)

Held, That the order was wrong. Such an order can be made only where the right to the possession of the property is not substantially disputed. If defendant had demanded this money of the Recorder and he had refused to pay, defendant's remedy would have been by a common law action in which the Recorder would have been entitled to a jury trial. The creditors of defendant cannot enforce the claim in any more summary manner. The County Judge could not try the question summarily. 47 N. Y., 368. The Recorder claims that this money has become forfeited to the city of Cohoes. We do not decide as to the correctness of this position. It must be determined in an action by a receiver to be appointed; if such receiver be advised to bring such an action. Order reversed.

Opinion by Learned, P. J., Bockes and Landon, JJ., concur.