5 N.Y.S. 281 | N.Y. Sup. Ct. | 1889
The complaint states that at the instance and upon the application of the defendant the plaintiffs were appointed by the supreme court as commissioners of estimates and assessments in the matter of improving Fourth avenue, one of the streets of the city. It is further stated therein that they accepted the office, and performed the duties, and made a report therein, which the defendant received from the commissioners upon the express promise that the city would pay the commissioners’ fees when the report was confirmed; that the city procured such confirmation, and refused to pay the fees. To this pleading there is a general demurrer. The improvement of Fourth avenue, under the defendant’s charter, was required to be made in this way: The commissioners’ fees are made a part of the expense, •and as such chargeable upon the lands benefited by the improvement. The usual method is to pay out of the moneys collected as the result of the assessment, on the basis of the report. When the report was confirmed, the city had the power to raise the fund, and promised to pay the commissioners from this source. We think the city could legally do this. The service had been rendered substantially at the request, and certainly for the benefit, of the defendant. The sole power to collect the money was given to it, and this is sufficient to support the promise to pay, even if the money had not been actually collected when promise was made. It was a city assent, which could be anticipated by the city, if an affirmative agreement was made for that purpose. The plaintiffs have a joint right of action. When parties have a common interest in the money, they can unite in a common action to recover it.
Dykman, J., concurs.
