and there seems to us to be nothing in the case which authorizes a disbelief of the estimate. If untrue or incorrect, it must have been quite easy for the plaintiffs to have given some evidence disproving it. What happened, then, in founding the damages upon the Jaffray sale, was a benefit to the plaintiffs, and not an injury, and, so far from being harmed by it, they are at least one cent a yard better off than if the correct rule of damages had been adhered to. They have had the benefit of a larger price, realized at a later time, and the error was in their interest, and not one of which they can complain.

The order of the general term should be reversed, and that of the referee affirmed, with costs.

(All concur except MILLER, J., absent.)

(101 N. Y. 257)

HARRINGTON v. ERIE Co. Sav. Bank.1

Filed January 19, 1886.

TRUSTS-PURCHASE OF TRUST PROPERTY BY TRUSTEE-TITLE OF SUBSEQUENT PURCHASER.

The purchase of trust property by a trustee is not void ab origine, but voidable only, and at the instance of the cestui que trust, or of a party who has acquired the rights which belong to one in that relation, and where such property was conveyed to satisfy a bona fide claim of the trustee against the estate, a legal title acquired by a subsequent bona fide purchaser without notice cannot be impeached even in equity.

George Clinton, for appellant.

Mr. Sprague, for respondent.

DANFORTH, J. The record shows that this action was commenced on the nineteenth of April, 1877, to recover possession of certain premises lying on the corner of Main and Court streets, in the city of Buffalo, then in possession of the defendant, but to which the plaintiff, by his complaint, claimed to have title. The defendant admitted possession of the premises, and, denying any title or interest in the plaintiff, among other defenses asserted a legal title in itself, acquired in April, 1865, by purchase, in good faith and for a valuable consideration, from one Edward L. Stevenson, without notice of any claim on the part of the plaintiff. Facts sustaining this allegation were in evidence before the plaintiff rested, and of themselves justified the nonsuit against which the appeal is taken.

It appeared that Isaac R. Harrington was the common source of title; that he died in August, 1851, leaving a will under which the plaintiff took, if at all, as one of several residuary devisees. But, before that, as the plaintiff also showed, his testator in November, 1847, conveyed this, with other property, to Edward L. Stevenson and Elbridge G. Spaulding, "in trust, to sell and dispose of the same upon such terms and conditions as in their judgment might appear best and most for the

Affirming 29 Hun, 143, mem.

interest of the parties concerned, and convert the same into money, and, by and with the proceeds of said sales and collections, to pay the expenses of the trust and care of the property and apply the balance upon debts," named or referred to as set out therein. His wife, Amanda, joined in the assignment, and she was also the sole executrix of his will. In December, 1852, the assignees and Mrs. Harrington, for an expressed consideration of $10,000, conveyed the property to George P. Stevenson, and he, on the twenty-fifth day of February, 1856, conveyed it to Edward L. Stevenson, who, on the tenth of April, 1865, for an actual consideration of $20,000 then paid to him, executed a deed, with warranty and covenants of seizin, to the defendant. In each instance possession of the premises corresponded to the legal title. The assignment and several conveyances above referred to were all duly recorded before the execution of the deed to the defendant. It vests a plain record title, and we agree with the learned trial judge and the general term in the opinion that nothing was proven to impeach it.

Suppose we concede, on behalf of the appellant, that the jury might have found that the conveyance by the trustees to George Stevenson was a device to get the title into Edward, who was one of the trustees, to satisfy a claim of the latter against the estate of Isaac, the creator of the trust, and provided for in his assignment. The existence and bona fides of the claim cannot, upon the evidence, admit of doubt, and it was proven that by the transaction the claim was to that extent satisfied. I am therefore unable to see how the act can be characterized except as one done for the benefit of the estate, apparently within the terms of the power in trust, and not in conflict with them.

The appellant relies upon the well-established doctrine that a trustee cannot purchase or deal in the trust property in his own behalf, or for his own benefit, directly or indirectly. This is a rule of equity, and is not to be impaired or weakened. Such a purchase, however, is not void ab origine, but voidable only, and at the instance of the cestui que trust, or of a party who has acquired the rights which belong to one in that relation. Even while in the hands of the trustee, the title may be confirmed as well by acquiescence and lapse of time as by the express act of the cestui que trust. These elements exist, but need not be considered, for a legal estate, acquired by a subsequent bona fide purchaser in good faith and without notice, cannot be impeached even in equity. He takes the land freed from the trust. That seems to be the situation of this defendant. There was nothing on record to show that its grantor had not a perfect right to convey, and, if he had not, it was owing to some undisclosed act or circumstance of which there is no reasonable ground for suspicion the defendant had notice.

We have examined the various propositions of the learned counsel for the appellant, but find none which shows error committed by the trial court in dismissing the complaint, or which, in view of the opinion above expressed by us, requires further notice. The judgment should therefore be affirmed.

(All concur, except MILLER, J., absent.)

(101 N. Y. 622)

STYLES v. FULLER.1

Filed January 19, 1886.

ACTION-BANKRUPTCY OF PLAINTIFF AFTER ACTION BEGUN, WHERE ANSWER IS GENERAL DENIAL.

The rights of parties to a legal action are to be determined as they were at its commencement, unless some event, happening subsequently, and affecting those already in issue, is presented by supplementary pleadings to the court, and the fact that plaintiff, after the commencement of the action, was declared a bankrupt, and that the cause of action had passed to his assignee, cannot be proven on the trial where the answer was a general denial.

Edwin G. Davis, for appellant.

Wm. F. MacRae, for respondent.

DANFORTH, J. This suit was commenced in June, 1876. The complaint stated a good cause of action, and the answer of the defendant was in substance a general denial. The verdict of the jury upon the issues thus found was in favor of the plaintiff, and sustained his allegations. To defeat a recovery the defendant on the trial offered to prove that in May, 1877, the plaintiff was adjudged a bankrupt, and the alleged cause of action passed to his assignee. The offer was properly rejected. The rights of parties to a legal action are to be determined as they were at its commencement, unless some event, happening subsequently, and affecting those already in issue, is presented by supplemental pleadings to the court. Here the matter offered in evidence was not pleaded, and for that reason, if no other, was properly excluded. No other question is presented to justify this appeal. It should therefore fail, and the judgment be affirmed.

(All concur, except MILLER, J., absent.)

(101 N. Y. 82)

PEOPLE ex rel. SUPERVISORS OF ULSTER Co. v. COMMON COUNCIL OF THE CITY OF KINGSTON.

Filed January 19, 1886.

1. TAXATION-APPEAL FROM EQUALIZATION OF VALUATIONS.

The board of supervisors of Ulster county audited a bill for costs and expenses of an appeal to the state assessors, by the supervisors of the city of Kingston, from the equalization of valuations against that city, although requested by the latter to wait until they could be heard on the matter. The city of Kingston obtained a writ of certiorari to review the proceedings, which was dismissed, and, on the defendant's failing to levy the tax necessary to pay the bills, an order for a mandamus was granted at special term to compel them to do so, and affirmed at general term, and from it this appeal is brought. Held, that the order granting the mandamus was proper, and should be affirmed.

2 SAME-COSTS ON APPEAL, BY WHOM PAID.

If an appeal from equalization of valuations is sustained, the costs must be assessed to the wards, towns, and cities in the county other than the appellant, but if not sustained, then they must be borne by the town, ward, or city appealing.

'Affirming 29 Hun, 482, mem.

3. SAME BOARD OF SUPERVISORS HAS POWER TO AUDIT SUCH Costs.

The legislature has the power to constitute the board of supervisors a board to audit the expenses against the city, and the latter did not come within the statute prohibiting a judge from sitting in a case in which he is a party or is interested.

4. SAME DEMAND FOR HEARING.

Where the demand for a hearing was not made by the city supervisors until just before the time fixed for the adjournment, they having knowledge of the matter for some time before, no legal right was invaded by the denial of the application for delay.

5. SAME-AUTHORITY TO OBTAIN MANDAMUS.

The board of supervisors had an interest to enforce the collection against the city, and although it did not directly authorize its attorney to procure a mandamus, its general retainer "in all matters in litigation," and the appointment of the committee, conferred ample authority to uphold this proceeding. 6. SAME-NEGLECT TO LEVY, EQUIVALENT TO REFUSAL TO PAY.

The omission of the city, while laying other taxes, to include these items, was equivalent to a refusal to pay it after the proceedings taken.

The order which is the subject of this appeal affirmed an order of the special term in mandamus proceedings, instituted December 6, 1884, commanding the common council of the city of Kingston to levy and collect upon the taxable property of the city the sum of $18,308.07, audited by the board of supervisors, December 3, 1883, for costs and expenses incurred by the board on an appeal to the state assessors, taken by the supervisors of the city of Kingston, November 28, 1882, from the equalization of the valuation of the real and personal property of the several towns and wards in the county of Ulster, made by the board of supervisors at its annual session in that year. The appeal came on to be heard before the state assessors, and was dismissed November 16, 1883. The board of supervisors, on the twenty-ninth of November, 1882, after said appeal was taken, appointed a committee to take charge of the interests of the board on the appeal, with power to employ counsel, and such clerical and other assistance as the committee should deem necessary, and take such measures as their counsel might advise, or as they should deem meet and proper in the premises. Pursuant to this authority, counsel were employed, and upon their advice the committee caused abstracts to be made of all conveyances recorded in the clerk's office of Ulster County for the period of five years, commencing January 1, 1878, stating the consideration named in each case. The expense of obtaining these abstracts exceeded $2,000. The committee also, by advice of their counsel, caused an appraisal to be made of each parcel of land of which there was a several ownership in the county of Ulster, by appraisers appointed by them for each town and ward in the county, (there being 63 appraisers in all,) at an expense of $9,570.03. Other expenses were incurred for clerical and other work, stenographer's fees, house hire, printing, etc., including the sum of $1,227.84 for special services of persons who, at the time, were members of the board of supervisors. The aggregate expenses, including therein $4,500 for services of counsel, ast audited by the board of supervisors, December 3, 1883, after the decision of the state assessors, amounted to the sum of $21,446.99.

The town of Marbletown also appealed from the equalization of 1882,

which appeal was taken at the same time as the appeal by the city of Kingston, and the two appeals were carried along concurrently, and were heard together by the state assessors, with the same result in each case. The board of supervisors, upon auditing the costs and expenses as above stated, apportioned them as between the town of Marbletown and the city of Kingston, upon the basis of the total equalized valuation of the town and city, respectively; the sum of $18,337.18 being apportioned as the share of the city of Kingston, and the sum of $3,109.81 as the share of Marbletown.

Prior to the decision of the state assessors, the board of supervisors and the city of Kingston respectively submitted to the assessors a statement in detail of the expenses incurred by each. The statement of the board of supervisors corresponded in the aggregate with the sum as audited December 3, 1883, to-wit, $21,446.99, and the expenses incurred by the city, as presented to the assessors, amounted to about the sum of $18,800. Prior to the audit, and on the twenty-first of November, 1883, the board of supervisors (being then in session) appointed a committee to examine the bills of expenses incurred by the board on the appeals in the equalization proceedings, and to report. The bills prior to that time had been duly verified by the several claimants, and presented to the state assessors, and had been certified as correct by the committee originally appointed to act in behalf of the board, and it appears by uncontradicted evidence that the supervisors of Kingston and the counsel for the city, as early as on the thirteenth of November, 1883, were informed of the amount of expenses claimed to have been incurred by the board of supervisors. On the first of December, 1883, the counsel for the city notified the committee appointed November 21, 1883, that the city desired to be heard upon the matter of the audit, and to give testimony in respect to the bills presented. On the third of December, 1883, the committee reported to the board, and, on the report being read, the supervisors of Kingston requested the board to postpone the consideration until the next day, in order to give them time to examine the bills and make such objections as they might desire. The board, however, proceeded to act upon the report, and made the audit as before stated. No specific objections were made by the supervisors of Kingston to any of the items. It appears that it was the practice of the board of supervisors at its annual session to adjourn from the fifth of December to the fifteenth, to enable the clerk to prepare the tax warrants for delivery to the proper officers. The return of the board of supervisors in the certiorari proceedings, hereafter referred to, and which is in evidence in the case, states that the application for delay was regarded as not having been made in good faith, but to prevent the auditing of the bills at that session of the board. On the seventh of December, 1883, the city of Kingston procured a writ of certiorari to be issued to review the proceedings of the board of supervisors upon the matter in question. The affidavits used on the application for the writ show that the supervisors of Kingston, at that time, had full knowledge of the contents of the bills. The board of supervisors made return to the certiorari, and it was dismissed by the