It is interesting to note that Rosefsky (supra) touched on this issue but then failed to address it. There the State held over at the expiration of an approved lease while negotiating a new one. When that fell through, claimant sued. Obviously no claim under contract existed by virtue of section 112 (2). The claimant then argued that month-to-month tenancies had been created. The Rosefsky court rejected that analysis, citing the common-law rule that, rather, a <mask> had been created. That tribunal, however, then failed to address whether claimant could or could not recover under that theory. Thus, the issue, which is one of first impression, is: can a landlord who has rented to the State under a lease invalid under State Finance Law § 112 (2) recover for the resulting tenancy at will under quasi-contract?


If an agreement is in fact made for a new tenancy, the tenant is no longer a tenant holding over after the expiration of his term; his tenancy is governed by the agreement. Where no actual agreement for a landlord-tenant relation is made, there is no reason why a statute abolishing the landlord’s option to hold the tenant for a new term should provide for any tenancy implied as a matter of law by reason of the holding over and the landlord’s consent. Any implication of such a tenancy involves uncertainties concerning its terms and the application of conditions that governed the expired tenancy. It may also impose burdens directly contrary to the intention of the parties where the continued occupancy is by “ consent ” but without agreement for a new term. Both a <mask> or at sufferance and a tenancy from month to month impose on the landlord a requirement of notice to terminate the tenancy, and outside the City of New York a tenant as well as a landlord must give notice to terminate a tenancy from month to month. (Real Property Law, §§ 228, 232-a, 232-b.)


There is no question that tenancies at will require the service of a notice to quit, as the predicate to the institution of a summary proceeding. Real Property Law § 228 states: "A <mask> or by sufferance, however created, may be terminated by a written notice of not less than thirty days given in behalf of the landlord, to the tenant, requiring him to remove from the premises; which notice must be served, either by delivering to the tenant or to a person of suitable age and discretion, residing upon the premises, or if neither the tenant nor such a person can be found, by affixing it upon a conspicuous part of the premises, where it may be conveniently read. At the expiration of thirty days after the service of such notice, the landlord may re-enter, maintain an action to recover possession, or proceed, in the manner prescribed by law, to remove the tenant, without further or other notice to quit.”


Another method of reasoning leads to the same result. It has been held that a lease “ for the duration of the war ” is indefinite in duration, and for that reason does not create a term for years but rather a <mask> (Stanmeyer v. Davis, 321 Ill. App. 227; Lace v. Chandler [1944] 1 All E. R. 305) because this country was at war with several nations — Japan, Germany and Italy — and the lease did not refer to which particular war of the several in which we were engaged and actual hostilities could and did cease with one belligerent before another. Furthermore, the precise event which would terminate the war was not made clear by the parties. Did the parties' intend that the lease should terminate upon cessation of actual hostilities, the signing of a peace treaty, its ratification, the enactment of a Congressional resolution, or the issuance of a Presidential proclamation? (See 39 111. L. Rev. 85.) Under these circumstances, the tenancy here would be one at will, terminable by a thirty-day notice (Real Property Law, § 228). The landlord gave the tenant notice on July 17, 1946, that the rent beginning September 1, 1946, would be $488.75 per month.


*118Section 228 of the Real Property Law provides for thirty days’ notice by the landlord in order to terminate a tenancy by will or at sufferance. There is no statutory provision requiring a like notice by the tenant to terminate the tenancy. The courts though hold that such notice is reciprocal, and is an obligation resting on the tenant as well as upon the landlord in order to terminate the tenancy. The reasoning of this rule probably is that the statute requiring the landlord to give the notice in order to terminate the tenancy, that in case it is not so given it still exists, and, existing, it creates an obligation on the part of the tenant to pay rent for the ensuing month, if he vacates without himself giving notice, as it is a continuing and subsisting tenancy, until terminated by notice. Furthermore, it may be said that, in the absence of statutory requirement, it was provided at common law that a <mask> or at sufferance could only be terminated by giving notice, the obligation resting equally upon landlord and tenant.


Subject to the terms of their contract, the projected occupancy was not "a mere temporary privilege,” revokable at the whim of either party (see, Miller v City of New York, 15 NY2d 34, 37; cf., Mauldin v New York City Tr. Auth., 64 AD2d 114). Moreover, judging from the manner in which rent was paid, the lease contemplated by the parties was a month-to-month tenancy (see, Cohen v Green, 21 Misc 334; Douglass v Seiferd, 18 Misc 188; 2 Rasch, New York Landlord and Tenant § 30:58, at 479 [3d ed]). At the least it was a <mask>, and not a freely revocable license (see, Real Property Law § 228; Lad v Hudson, 60 NY 102).


Real Property Law § 228 states: "A <mask> or by sufferance, however created, may be terminated by a written notice of not less than thirty days given in behalf of the landlord, to the tenant, requiring him to remove from the premises; which notice must be served, either by delivering to the tenant or to a person of suitable age and discretion, residing upon the premises, or if neither the tenant nor such a person can be found, by affixing it upon a conspicuous part of the premises, where it may be conveniently read. At the expiration of thirty days after the service of such notice, the landlord may re-enter, maintain an action to recover possession, or proceed, in the manner prescribed by law, to remove the tenant, without further or other notice to quit.” (Emphasis supplied.)


If the assignee of the vendor could, in law, declare the contract void, because of the failure of the vendees to comply with its. terms and conditions, and thus create the relation of landlord and tenant, could it be done by parol, or was notice in writing essential, and if he could and did do so, when did the tenancy begin? If it began when he elected to declare the contract void, and demanded possession, it then became a <mask> or at sufferance,- because there had been no such termination of the tenancy or holding over as the statute contemplates. § 2331, Code Oiv. Pro., subd. 1-2.


3d ib., 13.—“ The tenancy from year to year succeeded to the old <mask>, which was attended with many inconveniences, and, in order to obviate them, the coúrts very early raised an implied contract for a year, but added that the tenant could not be removed at the end of the year without receiving six months notice ” (See also 2d Crabb's Law of Real Property, p. 269, § 1570.)


The law is well-settled that where a tenant enters into the possession of agricultural lands under an oral lease or contract, or one that is otherwise void or defective, and pays rent to his landlord, it creates a <mask> and if the tenant remains in possession, by operation of law it becomes a tenancy from year to year. Jansen v. Pobst , 922 S.W.2d 43, 48 (Mo. App. S.D. 1996).


A license, as contrasted with a <mask>, is merely permission to do a particular act or series of acts upon the land of another, and conveys no estate in the land which establishes the conventional relationship of landlord and tenant (51 C. J. S., Landlord and Tenant, § 156, p. 763; 3 Tiffany on Real Property [3d ed.], § 829, p. 401). A license confers a mere right of occupancy of the land, with the consent of the owner (Walsh, Encyclopedia of New York Law, p. 581), and “ without passing any estate therein ” (Mammy’s Inc. & Pappy’s Inc. v. All Continent Corp., 106 N. Y. S. 2d 635, 638). A license may encompass the *462erection of "buildings or other structures upon the owner’s land (3 Tiffany on Real Property, p. 403).


A <mask> may be converted into a periodic tenancy, in this case from year to year, where the tenant remains in possession of the premises, with the consent of the landlord under such circumstances as would permit the inference of such a tenancy (Talamo v. Spitzmiller, 120 N. Y. 37). The reservation of rent, on a yearly basis, readily permits such an inference (Adams v. City of Cohoes, 127 N. Y. 175; Coudert v. Cohn, 118 N. Y. 309). The fact that rent is actually paid more frequently has no bearing upon the characterization of the tenancy. In Adams v. City of Cohoes (supra), the annual reserved rental was paid semiannually. Similarly, in the case at bar, the rental was reserved on an annual basis, payable monthly and actually paid bimonthly. The landlord continued to accept rent on this basis for six years. Under these circumstances, it is absurd to contend that the tenant was in the premises on a month-to-month basis.


Could the interest of the. plaintiff in the land be considered strictly a <mask>, he would be entitled to the potatoes. *409Chancellor Kent in his Commentaries (vol. 4, p. Ill) says: “It was determined very anciently that estates at will were equally at the will of both parties, and neither of them was permitted to exercise his pleasure in a wanton manner and contrary to equity and good faith. The lessor could not detennine the estate after the tenant had sowed and before he reaped, so as to prevent the necessary ingress and regress to take the emblements.


Moreover, the tenant, while in possession under such lease, cannot dispute his landlord’s title despite the fact that the lease, on its face, may show lack of title in the landlord. (Tilyou v Reynolds, 108 NY 558; Rasch, NY Landlord & Tenant [2d ed], § 91.) Thus, the lease is in effect and continues until disaffirmed by the true landlord, thereby creating a voidable, not void, lease. However, it is only the void lease, without permissive occupancy ripening into a <mask> that allows eviction under RPAPL 713 (subd 3). (Carmon v Fox, 86 Misc 197; Mahoney v Hoffman, 58 Misc 217; Fisher v Queens Park Realty Corp., 41 AD2d 547.)


When the tenancy is not month-to-month but a <mask> or sufferance, Real Property Law § 228 determines the manner in which the tenancy may be terminated and also determines the manner of service of the 30-day termination notice (see Real Property Law § 228; Fisher v Queens Park Realty Corp., 41 AD2d 547 [1973]; Carman v Fox, 86 Misc 197 [1914]; Lippe v Professional Surgical Supply Co., 132 Misc 2d 293 [1986]; North Shore Community Servs. v Lehrfeld, 3 Misc 3d 436 [2004]; Boyar v Goodman, 202 AD2d 541 [1994]).


A tenant at sufferance is one who comes into the possession of land lawfully, and after his estate is ended, wrongfully continues in possession. (2 Bl. Com. 150; 4 Kent's Com. 116.) There is no provision in the agreement that the estate should end at any particular time. Therefore, Mosher has not wrongfully continued in possession, unless the plaintiff or his father, terminated by some act, his lawful term. It was by the deed, and not the death of his father, that the plaintiff acquired whatever rights he may have as against the defendant. Nothing was done to' terminate Mosher’s term, till the 11th day of March, 1858. He remained on the premises lawfully till that day, at all events. Oh that day a notice was served on him¡ requiring him to remove from the premises. The statute reads thus: “ "Whenever there is a <mask> or by sufferance, created by the tenant’s holding over his term or otherwisej the same may be terminated by the landlord’s giving one month’s hotice in writing to the tenant, requiring him to remove therefrom.” (Sec. 7, title 4, ch. 1 of part 2 of R. S.) I have showti. that a common law tenancy at will, does not exist between the parties, and as the defendant was lawfully in possession, and was not wrongfully holding over his term on the 11th day of March, it follows that there was no tenancy at sufferance, at that time; and if not then, there is not now ; for the statute notice of a month, is provided to terminate, not to create a tenancy at will or by sufferance.


*475Section 2236 of the Code of Civil Procedure provides that “ where the person removed is a tenant at will * * * the petition must state the facts showing that the tenancy has been terminated, by giving notice, as required by law.” The “ notice required by law ” is specified in section 228 of the Beal Property Law, which provides in substance that a <mask> may be terminated by a written notice of not less than thirty days given in behalf of the landlord to the tenant, requiring the tenant to remove from the premises.


The respondent tenant herein occupies under a <mask>.. There is no leasehold interest involved. This tenancy has properly been terminated by this petitioner by the notice to quit served and effective March 30, 1962. The rights to possession of the respondent must surely make way for the paramount rights to possession of the petitioner co-owner. The petitioner has properly brought a summary proceeding. This is a remedy to which he is entitled and by which he may assert his right to possession.


A construction proceeding was brought by respondent in the Surrogate’s Court, Nassau County, before Judge C. Raymond Radigan. The Surrogate construed article third of the decedent’s will as devising fee title to the premises to petitioner and construed article fourth as creating a <mask>. (Decision dated May 16, 1994; decree dated June 27, 1994.) Essentially the tenancy was cancellable on 30 days’ notice (Real Property Law § 228).


Where one takes possession under an invalid or void lease, his tenancy at its inception is at will. (Carman v. Fox, 86 Misc. 197; Altschuler v. Lipschitz, 113 N. Y. Supp. 1058.) So, too, a tenancy without any term prescribed or rent reserved, or one expressly during the will of the lessor, or a simple permission to occupy, creates a <mask> unless there are circumstances to show an intention to create a tenancy from year to year. (1 Gerard N. Y. Real Prop. [6th ed.] § 441.)


In the case of Hand v. Knaul (116 Misc. 714) the court held: “ The tenancy from month to month is where the tenant’s term is indefinite and uncertain although the rent is paid monthly and is described in some of the cases as an ' indefinite tenancy from month to month.’ * * , * Such a tenancy requires a notice of thirty days for its termination. This is not under any statute but is probably due to its analogy to a <mask> or by sufferance which is for an indefinite term * * * and requires a notice of thirty days to terminate. * * * Likewise, it is somewhat analogous to the common law tenancy from month to month, which required a month’s notice to terminate. * * * Where there is an obligation to give notice, other than statutory, it is binding on both parties, their rights and duties being correlative and reciprocal.”


The first thing to be considered is whether a notice of thirty days is necessary to terminate such a tenancy. Upon this proposition the cases are not entirely in harmony and there is at least a seeming conflict of authority. Usually a distinction is made between a “ monthly ” hiring and a hiring “from month to month. ’ ’ Schneider v. Amendola, 113 N. Y. Supp. 517; Mandel v. Koerner, 152 id. 847, 850. In some of the cases hereafter cited, it will be seen that this distinction in terms was not recognized, which may account for some of the apparent disagreement in the opinions. Where the distinction is recognized, a monthly hiring or tenancy is where the premises are actually or by necessary implication hired for the single term of one month and the tenancy automatically expires at the end of each month, and is renewed for another month whenever the tenant holds over into the next month. Such a tenancy requires no notice for its termination. The tenant may remove during that month without notice to the landlord and is not liable for rent for the *717ensuing month. Or the landlord may, at the end of the month, without previous notice, treat the tenancy as terminated and, if necessary, may have summary proceedings against the tenant as one holding over at the expiration of his term. The tenancy from month to month is where the tenant’s term is indefinite and uncertain although the rent is paid monthly and is described in some of the cases as an “ indefinite tenancy from month to month.” Witherbee, S. & Co. v. Wykes, 159 App. Div. 24, 26. Such a tenancy requires a notice of thirty days for its termination. This is' not under any statute but is probably due to its analogy to a <mask> or by sufferance which is for an indefinite term (Banks v. Carter, 7 Daly, 417), and requires a notice of thirty days to terminate. Real Prop. Law, § 228. Likewise, it is somewhat analogous to the common law tenancy from month to month, which required a month’s notice to terminate. Anderson v. Prindle, 23 Wend. 616. Where there is an obligation to give notice, other than statutory, it is binding on both parties, their rights and duties being correlative and reciprocal. Adams v. City of Cohoes, 127 N. Y. 175, 184.


Suppose the deed of 1818 to have been 'valid, then the occupation by Philip Smedes would be deemed to have been under and in subordination to the legal title. (Code Civil Pro., § 368.) Such subordinate possession, in the absence of explanation, will be deemed a <mask>. (Jackson v. Sternbergh, 1 Johns. Cas., 153; Russell v. Doty, 4 Cow., 576; Jackson v. Graham, 3 Caines, 188.) There was no written lease and no rent reserved or paid. Peter Smedes and those holding under him would, therefore, be deemed to be such tenants at will for twenty years after the date of the deed of 1818. (Code Civil Pro., § 373; Whiting v. Edmunds, 94 N. Y., 314.)


I have satisfied myself that- an ordinary life tenancy is not within the scope of said section 2231, for clearly it is not a <mask>, by sufferance, for part of a year, or for one or more, years. It has long been settled by respectable authority that- this statute, since it furnishes a quick and drastic remedy, must be strictly construed. This lease contains no “limitation”—an expression well known to the law of landlord and tenant — so that by virtue of the happening of a prescribed event the term set in the lease would expire. Therefore, since section 2231 does not in terms cover ordinary leases for life and the lease contains nothing-whereby its term could be limited to less than the *547lives mentioned therein, the petitioner has mistaken his remedy.


“A <mask> or by sufferance, however created, may be terminated by a written notice of not less than thirty days given in behalf of the landlord, to the tenant, requiring him to remove from the premises; which notice must be served, either by delivering to the tenant or to a person of suitable age and discretion, residing upon the premises, or if neither the tenant nor such a person can be found, by affixing it upon a conspicuous part of the premises, where it may be conveniently read. At the expiration of thirty days after the service of such notice, the landlord may re-enter, maintain an action to recover possession, or proceed, in the manner prescribed by law, to remove the tenant, without further or other notice to quit.” This court holds that a tenancy by sufferance was created by the laches of petitioner in commencing the summary proceedings because over a year elapsed between the end of the lease and the time summary proceedings were started. Under these circumstances, the petition is hereby dismissed without prejudice to renew upon the proper service of a notice of termination as required by Real Property Law § 228.


But does the statute make any provision for summary proceedings against a tenant who is strictly a tenant from year to year ? It provides thus: “ Any tenant or lessee at will, or at sufferance, or for any ¡Dart of a year, or for one or more years, &c., may be removed,” &e, (Laws 1849, ch. 193, § 1.) The words, “ for any part of a year, or for one or more years,” mean the same as “ for years,” as I have shown above. The statute, therefore, authorizes these proceedings against three classes of tenants, namely: tenants at will, at sufferance, and for years; but does not seem to include those who are strictly tenants from year to year. Is the defendant, however, if a tenant at all, technically a tenant from year to year, and nothing else? In Post agt. Post, (14 Barb. 257,) Hand, Justice, says: “ A tenancy from year to year, so long as both parties shall respectively please, is in one sense, a <mask> ; but must"- be terminated at the end of the year by proper notice. What notice is requisite to terminate an estate from year to year, at the will of the parties, it is not now necessary to deeide.” (See also Prouty agt. Prouty, 5 How. P. Rep. 81.)


On the other hand, the landlord herein cites a case which seems closer in point. (Peer v. O’Leary, 8 Misc. 350.) This was a summary proceeding by a landlord to recover possession of property occupied by a tenant. It appeared that the landlord had allowed the tenant to occupy a portion of his house after the tenant’s house had burned. No agreement was made as to the length of the term or as to the payment of any rent. The Municipal Court dismissed the petition. The General Term of the Superior Court reversed and held that the circumstances spelled out a <mask>, citing Post v. Post (14 Barb. 253, 255) and Sarsfield v. Healy (50 Barb. 245). In that case no express agreement whatever was shown, merely a permission to occupy the premises. It is not necessary to show any agreement to pay rent to prove the conventional relationship of landlord and tenant. (Peer v. O’Leary, supra; Burns v. Bryant, 31 N. Y. 453; Larned v. Hudson, 60 id. 102.)


Where one enters upon land by permission of the owner, without reservation of rent or designation of tenure, he is by implication of law, a tenant at will, and the conventional relationship of landlord and tenant exists between the parties (Larned v. Hudson, 60 N. Y. 102, 104; Powers v. Ingraham, 3 Barb. 576, 578; Sarsfield v. Healy, 50 Barb. 245, 246; Post v. Post, 14 Barb. 253, 258). A <mask> confers an estate in land (Matter of Rourke v. Metz, 139 App. Div. 155,157, affd. 202 N. Y. 604).


But in order further to consider the case, I will assume that the agreement is a lease, and creates the relation of landlord and tenant. The question then arises, what is the nature of the tenancy ? Is it a tenancy for years ? a <mask> ? a tenancy at sufferance ? or a tenancy from year to year ? It will be well very briefly to consider the nature of these different kinds of tenancies.


However, an occupancy by a squatter or trespasser can ripen into a <mask> as, for instance, where there is an express agreement of the parties or an acceptance of rent (Kassover v Gordon Family Assocs., 120 Misc 2d 196; see, 51 CJS, Landlord and Tenant, § 158). A tenancy at will may also arise by implication, and an obligation to pay rent is not a necessary incident of such a tenancy (Harris v Frink, 49 NY 24, 32). In order for a tenancy at will to arise, however, the occupancy must be subordinate, not adverse, to the title of the true owner (Biglow v Biglow, 75 App Div 98; In re Wilson’s Estate, 349 Pa 646, 37 A2d 709). The Court of Appeals has stated that an owner’s acquiescence in a continued occupancy (where the occupancy is subordinate to the title of the owner) may, where the facts so warrant, jiistify an inference that a tenancy at will has been created (Kerrains v People, 60 NY 221, 225).


The section 228 notice requires no such additional caveat. It merely sets forth the necessity of a written notice cancelling a <mask> or at sufferance and sets forth the manner of service. This statutory section further states landlord’s options as options and not as mandates, in the event tenant has not vacated the premises. (Real Property Law § 228.)


If the petitioner be correct in his contention that the relation of landlord and tenant commenced when he declared the contract void, and demanded possession of the premises, he could only bring- himself'within the. statute, or institute this proceeding at the expiration of the month’s notice to his tenants to vacate and surrender such possession (§ 2236, Code Oiv. Pro.) for the provisions of the Revised Statutes in reference to terminating a <mask> or by sufferance are still in force.


Having elected to proceed under RPAPL 713 (subd 3), the petitioner is limited to the relief authorized thereunder. There is no indication in the papers whether all or part of the premises were conveyed. Thus, alternatively, either a <mask> of a portion of the entire premises was created and may terminate pursuant to RPAPL 711, or, a tenancy in common was created for the entire premises which may be limited to nonexclusive use pursuant to RPAPL 713 (subd 3). Petitioner is thereby limited to the afore-mentioned relief under RPAPL 713 (subd 3). As can be seen, summary relief is of limited scope herein. The better procedure for all the parties, including respondent, is to move for partition (RPAPL 901).


*618The sections of the Real Property Law which expressly relate to the termination of a tenancy by notice are sections 228, 230, 232-a and 232-b. Section 228, relating to a <mask> or by sufferance, requires a written notice, which must be served as therein provided. Section 230, which relates to the renewal of a lease, provides for a written notice, which must be served personally or by registered mail. Section 232-a, relating to tenancies in the city of New York, requires a written notice, and that it be served in the same manner as a precept. All three Sections expressly require a written notice and expressly provide how it shall be served.


This court finds that Aponte is correctly decided, and that it is not in fact inconsistent with the rule enunciated in Gerolemou. It was stated in Alleyne v Townsley (110 AD2d 674, 675 [2d Dept 1985]) that, “No statute abrogates the common-law rule that notice is unnecessary to maintain an ejectment action against a tenant who wrongfully holds over after expiration of a fixed and definite term (see, 13 Carmody-Wait 2d, NY Prac § 89:118).” (Emphasis added.) Similarly, in one treatise it is reported that, “Notice to quit the premises is required when the tenancy is a month-to-month, a <mask> or at sufferance, or for an indefinite period. After the tenant is given a 30 day notice to terminate a month-to-month tenancy, further no*152tice is unnecessary to maintain an ejectment proceeding.” (5 Warren’s Weed, New York Real Property, Ejectment § 3.02 [2001] [Demand; Notice to Quit].) The correct rule of law would appear to require that when there exists a subsisting landlord-tenant relationship, a notice to terminate is required, as was the case in Gerolemou, which involved a month-to-month tenant. In those cases in which there is a holding over after the expiration and no new landlord-tenant relationship is created (such as when the landlord does not accept rent after the expiration of the lease),3 as appeared to be the case in Aponte, no notice to terminate is required.


When an employee remains in possession for a considerable time after the employee-employer relationship has terminated, a <mask> is created. The classic case of Kerrains v People (60 NY 221) advanced this principle in 1875 and the ruling is still valid. Such a tenancy will then require the service of a preliminary notice to quit before the former employee-tenant can be dispossessed by a summary proceeding. (See Rasch, NY Landlord and Tenant [2d ed], § 1072.) Though Stiles was no longer an employee of Kolping at the time of his eviction, he was clearly a tenant, and the defendants were obligated to institute a summary proceeding to remove him.


Therefore, it seems preferable to establish a rule of law of <mask> to measure a bank’s timeliness obligation as garnishee when it acts in good faith in fact, as it did here. Under the circumstances herein the court believes that allowing the bank until the close of business the day after receipt of the restraining notice is appropriate. Accordingly, the petition is dismissed without costs and disbursements.


To assure compliance with today’s order, respondent is hereby ordered to post, by 10:00 a.m. on May 2, 1950, a cash <mask> in the sum of $300, or in a default of furnishing such surety to stand committed to the warden or keeper of the City Prison or Jail, or Workhouse of the City of New York for a period of four months from date of commitment, or pending further order of the court (see N. Y. City Dom. Rel. Ct. Act, § 92, subd. [11]; § 151, § 154, and Monroe v. Monroe, 45 N. Y. S. 2d 589; also Family Court Rule XXXVI; Bender’s Court Rules [1st ed.], p. 374). Such deposit shall stand as security for all payments accruing on today’s order until May 1, 1951; and if sooner exhausted by drafts thereon in consequence of respondent’s default, a further bond may be requested under section 159 of the Domestic Relations Court Act.


It is plaintiff’s contention that section 137 of the State Finance Law should be read in conjunction with section 2 of the Lien Law. The latter section, at subdivision 10, denominates a subcontractor as one who “ enters into a contract with a contractor and/or with a subcontractor for the improvement of such real property or such public improvement or with a person who has contracted with or through such contractor for the performance of his contract or any part thereof. ’ ’ Plaintiff urges that since it entered into a contract for the sale and delivery of the material to a subcontractor of the contractor, it, too, is a subcontractor and entitled to the longer statutory period within which to bring an action on the <mask>.


We must first address the preliminary issue of whether this appeal involves a final, appealable order. When the order appealed from is not final, this court will not decide the merits of the appeal. Kines v. McBride , 2017 Ark. App. 40, at 3, 511 S.W.3d 352, 354. The finality of an order is a jurisdictional question that we have the right and duty to raise to avoid piecemeal litigation. Toney v. White , 31 Ark. App. 34, 787 S.W.2d 246 (1990). Rule 2(a)(1) of the Arkansas Rules of Appellate Procedure-Civil provides that an appeal may be taken only from a final judgment or decree entered by a circuit court. For an order to be appealable, it must dismiss the parties from the court, discharge them from the action, or conclude their rights to the subject matter in controversy. Toney, supra. Rule 2(a)(12) also provides that an order is appealable if it is entered pursuant to Arkansas Code Annotated section 28-1-116 (Repl. 2012), which sets forth that all orders in probate cases, except an order removing a fiduciary for failure to give a new <mask> or render an accounting required by the court or an order appointing a special administrator, are appealable.


On April 19, 1967, the confession of judgment was filed in the Erie County Clerk’s office and judgment was entered in the amount of $55,340 against all of the debtors. The following day, an execution was issued to the Sheriff of Erie County to levy on certain funds in the hands of the City of Buffalo, purportedly owing to Josanco on the contract for which ¿Etna had issued the performance and payment bonds. Subsequently, Josanco obtained an order of this court directing the judgment creditor to .show cause “ why an order should not be granted discharging any and all executions, levies, or any other enforcement proceedings against Josanco Construction Corp. or any of its officers and employees, and permitting it to file a <mask> in lieu thereof.”


I do not think the statute discloses any such intention. It is merely a provision appropriating money, which makes available the proceeds of the <mask> issue for the specified uses including such awards against the state as might be made by the Court of Claims for compensation or damages or both according to existing principles of law properly applicable to the claims on which the awards might be made.


It follows, therefore, that the payment made to Jenkinson by Mrs. Schwing was, to the extent of sixteen dollars and twenty-five cents, a payment for and on behalf of the plaintiff, and the plaintiff not having reimbursed the defendants therefor, the defendants were entitled to have that amount credited to them upon their <mask> and mortgage to plaintiff. I am satisfied from the evidence that the defendants considered the advance made by them for and on behalf of the plaintiff was to be taken as a payment on the bond and mortgage. In any event, in equity, it should be so applied. No court would adjudge the foreclosure of this mortgage upon an alleged default of an installment of principal and accrued interest amounting to less than the amount owing by the mortgagee to the mortgagors.


The second, third, and fourth sections are inapplicable, so far as they relate to the parties to apply for a guardian ad litem, and the time and mode of applying. They contemplate an application previous to the presentation of the petition. But as sections 128, 129, 130, 133, and the second subdivision of section 134, of the Code, are applicable to a partition case, the action will have been commenced, and then section 116 will regulate the form of applying, and the parties to apply; while the substantial and consistent provisions as to the undertaking or <mask> of the guardian are also to be observed.


Ismalon International Products, Ltd. (Ismalon), a defendant in default, secured from International Fidelity Insurance Company (International) a labor and material <mask> pursuant to section 137 of the State Finance Law in connection with work performed on a New York State project. In the usual language of such bonds, it was conditioned upon the prompt payment by Ismalon of ‘1 all moneys due to all persons furnishing labor or materials * * * in the prosecution of the work ”. In addi,*177tion, it was provided ‘ ‘ that all rights and remedies on this bond * * * shall be determined in accordance with the provisions of said section ” (§ 137).


In Stumpf v. Hallahan (101 App. Div. 383; affd., 185 N. Y. 550) the action was based upon a <mask>, to recover for a deficiency arising from the foreclosure of a mortgage on land in New Jersey “ given to secure the bond.” The New Jersey statute, among other things, provided that in all cases where a bond and mortgage were given for the same indebtedness, the proceedings to collect the debt shall be: First, to foreclose the mortgage, but no deficiency judgment can be obtained in the foreclosure action; second, if the property does not sell for enough to satisfy the debt, interest and costs, an action may be brought on the bond for the deficiency within six months after the sale; third, if the mortgagee recovers a judgment for the deficiency in an action on the bond, the foreclosure is opened and the mortgagor may redeem within six months after the entry of judgment. The plaintiff had waited almost three years after the *1024foreclosure before bringing an action upon the bond. The justice who tried the case decided that the short New Jersey Statute of Limitations was binding and a bar to the maintenance of the action. The Appellate Division, First Department, in an opinion by Justice O’Brien, affirmed the court below. It held that the New Jersey Statute of Limitations was applicable, and since the action was not brought within six months it was barred.


The said referee reported a balance in the hands of the executor belonging to Miss Mary E. Baker of $9,551.59, consisting in part of a <mask> and mortgage described, and the residue, “ or most of it,”, on deposit in the executor’s name in some of the banks of the city of Oswego, and that “ the said Mary E. Baker, residuary legatee under the provisions of the will of the testatrix, is entitled to a judgment directing that the balance should be paid over to her, * * * and requiring and adjudging that the executor, Charles N. Baker, deliver over to the said legatee the said mortgage and the accompanying bond, if there is one, mentioned in the inventory of the estate, * * * and that said executor pay over to the said legatee Mary E. Baker, the sum of $8,051.59, balance of the legacy found due on this accounting to the said legatee Mary E. Baker, and such further sums as he may have received, or shall hereafter receive, for interest on two government bonds of $500 each, .after deducting therefrom one per cent commissions, and adjudging that all moneys received from collections of securities belonging to the estate, which have come into the hands of the said executor and which remain subject- to his order or control, be deemed and declared to be held by him in trust for the said residuary legatee Mary E. Baker, until the full amount found due her upon this accounting be fully paid and satisfied.”


because S.D. was incarcerated with a release date of September 2, 2019. Mother and S.D. did not appear at the September 17, 2019 dispositional hearing, at which the parties submitted on disposition. The Agency advised the court that the paternity results excluded S.D. as the biological father of the minor, and he was dismissed from the dependency proceeding. At the December 3, 2019 hearing on paternity issues, the Agency informed the court that mother named L.B. as the father of the minor. L.B. stated he believed he was the biological father, so the court ordered DNA testing for him. DNA testing excluded L.B. as the minor’s biological father and he also was dismissed from the dependency case on January 21, 2020. During this hearing, with all parties present, the court inquired, “And do we have any other candidates as possible father?” The Agency responded, “Not that the mother has told us at this time.” On February 28, 2020, S.D.’s sister and her husband, who had been caring for the minor during the proceedings, filed a request to be appointed as the minor’s de facto parents. The Agency’s March 5, 2020 status review report reflected that mother gave father J.E.’s name as another alleged father of the minor in March 2020 but did not provide any identifying or contact information to assist the Agency in locating him. The minor was stable in placement and shared a strong <mask> with her caregivers, who were willing to adopt the minor if mother failed to reunify. Mother was not present at the March 10, 2020 hearing and the court ordered her reunification services terminated and granted de facto parent status to the minor’s caregivers. On May 11, 2020, the Agency filed a declaration naming father as the alleged father of the minor, stating that reasonable diligence was exercised in attempts to locate father, as demonstrated in the absent parent locator report dated March 26, 2020, and requesting that service to father and any unknown father of the minor be made by publication in the newspaper. An order for publication was signed by the court on


To bring the case within the statute of frauds, it is necessary to prove that the judgment was in fact fraudulent and without a valid consideration in its concoction, (4 East, 1, 14,) for such are the express provisions of the statute by which the penealty sued for is given, (1 R. L. 76, § 4.) The evidence produced and offered does not pretend to shew that the judgment was without a good and bona fide consideration ; on the contrary, it proves and offered to prove nothing more than the proceedings of the deputy sheriff under the defendant’s execution at Geneva, while the defendant's were in the city of Albany; for the plaintiffs have neither proved or attempted to prove that the defendants were cognizant of those proceedings. How, then, does this evidence prove fraud in entering up a judgment on a <mask> and warrant executed three years previous ? Can the proceedings of the deputy sheriff under the execution, without the interference of the defendants, involve them in fraud, and subject them to a grevious penalty 1 or can those proceedings, if irregular, relate back to the execution of the bond and warrant and entering up of the judgment ? Suppose the whole were bona fide and for good consideration; would any irregularity of the sheriff or his deputy in relation to the proceedings under the execution impugn either the bona fides or consideration of the judgment ? This would indeed be a novel doctrine applicable to penal statutes, and repugnant to the settled rules of law in such cases. I wish not however to be understood that I consider the proceedings of the deputy sheriff as irregular, *108for that, in my judgment, is not a point before the court.: wpaj- j mean to say is, that the defendants cannot be subjected to the penalty of the statutue for his misconduct.


Municipal Housing Auth. v. Hatfield Elec. Corp. (264 App. Div. 99) is also distinguishable, because there the contract contained a provision whereby the Authority could withhold money earned under the contract for the purpose of paying laborers and materialmen. In that case there was no payment <mask> but only a performance bond and a default on the part of the contractor. The contracts involved in these cases contain no such provision and there has been no default in performance.


Article VII of the MCFFA <mask> Resolution, which relates to the trustee’s duty of care, provides in relevant part that the trustee shall not be liable "except for its own negligence or default,” and that "no implied covenants or obligations shall be read into this Resolution.” (Art VII, § 703 [1].) The Resolution further provides that the trustee will not be held liable "for any action taken or omitted by it in good faith and believed to be * * * within the discretion or rights conferred upon it” (§ 703 [3]), and provides that the trustee shall be indemnified "against any liabilities which it may incur in the exercise * * * of its powers * * * and which are not due to its negligence or default” (§ 703).


Mother testified at the February 16, 2018 hearing that she had not been given an opportunity to provide information to the Tribe regarding her progress with her services. She explained that she wanted the Tribe to know that she had completed domestic violence classes and therapy, and that she had healed. She also testified that she opposed the tribal customary adoption because she wanted to raise her children herself. She told the court that she was living on her own and maintained that she had learned "red flags" and other warning signs from participating in therapy and *30completing domestic violence classes. She testified that she had left four messages for the Tribe after she received the tribal customary adoption proposal, but had not been *142contacted by anyone from the Tribe. On cross-examination, Mother denied that she had spoken about A.S. and E.S. with the tribal social worker in October 2017. The court concluded that testimony about visitation, Mother's progress in services, and her <mask> with the children was not relevant to the issues to be determined at the hearing.


The infant plaintiff attained his majority on April 20, 1938, and thereafter and on or about July 12, 1938, the successor of the chamberlain of the city of New York, the city treasurer of the city, of New York, issued a certificate to the plaintiff, wherein he stated that there was on deposit with him as of July 12,1938, to the credit of the plaintiff, the sum of $532.46 in cash, and the aforementioned $1,400 participating interest. Said certificate further stated that the said sum of $1,400 credited to plaintiff’s account was invested in said <mask> and mortgage on February 20, 1929, by the then city chamberlain, the defendant Charles A. Buckley.


This disposition of the case we think erroneous. If this doctrine were to be adopted into the body of the law, it would be only necessary for the holder of a liquor tax certificate to absent himself for a few hours a day from his place of business, to avoid the penalty following a violation of tliis provision of the Liquor Tax Law during his absence; or, in the event of one person holding two liquor tax certificates, his continued absence from one would be a sufficient defense to any revocation proceeding that might be instituted against him for the violation of section 23 of the Liquor Tax Law by his agent at such place of business. We cannot believe that the Legislature intended that the words “ suffer or permit” should receive the interpretation given to them by the learned Special Term. It has been held that where a liquor tax certificate has been issued or transferred to a person upon his application and filing of a <mask>, he is the principal, whom the law will look to during the conduct of the business, and will hold responsible for compliance with the statutory provisions. (Lyman, v. Kurtz, 166 N. Y. 274.)


It further appears that on the eleventh day of May following, Bailie, Dale and Roberts met at the office of Davies & Work, the attorneys for the Mutual Life Insurance Company, who were to make a loan on the property, and the contracts to which reference has been made were carried out in the following way: Bailie, it appears, had not at that time given any deed to Dale, and at the request of the latter the conveyance was made directly to Roberts of the fifty feet and ten inches on the First avenue, and for the consideration already expressed, to wit, $41,000. To this course, Roberts assented, and secured the consideration for the transfer by executing and delivering to the Mutual Life Insurance Company a <mask> and mortgage for $16,000, and a second bond and mortgage to Bailie, which is the one in suit, for $9,000, and by these instruments the sum of $25,000 which he was to assume was made up ; and he further executed and delivered in escrow a deed to Dale of the Second avenue and Ninety-fourth street lots for the consideration of $16,000. By this arrangement it further appears that Bailie was paid the $15,000 to which he was entitled, as a consideration for the sale of the premises originally made to Dale, and was reimbursed the $5,000 which he advanced according to the agreement between the latter and himself, part payment of it being made by the $9,000 bond and mortgage, which was declared in the mortgage to secure a portion of the consideration or purchase-money expressed in the deed from Bailie.


The court, therefore, had jurisdiction of the subject-matter of the action, and the <mask> sued upon complies with the-statute. It is further claimed that the execution is void for the reason that it is directed to any constable of the county of Erie. The constable who received the execution in this case *533answers this description; he is a constable of the county of Erie, and his appointment by the judges of the Municipal ■Court does not deprive him of this status. Besides, the Municipal Court Act is silent as to whom the execution shall be directed. It provides, section 458, for the issuance of an execution; we are, therefore, relegated to the practice of Justices’ Courts for the proper direction of it.


Defendants gave plaintiff a <mask> which recited that the latter had loaned the former substantially her entire possessions upon which she was compelled to rely for support; its condition was that interest on the principal sum should be paid her quarterly and also, such principal sums of $100 on ten days’ notice, “ as the said Nancy may need and shall require to be paid for her comfortable *651support and maintenance.” On her death any remaining principal was to be paid to specified persons.


*896In May 2017, the trial court granted McMains's motion to extend time pursuant to Penal Code section 1305.4.3 In November 2017, Accredited moved to vacate the forfeiture and exonerate the <mask>. Accredited argued the bond was exonerated when the trial court released defendant on his *666own recognizance. In supplemental briefing, Accredited argued the bond was exonerated when the trial court increased the bail amount to $ 290,000 but released defendant on the $ 215,000 bond, and the two bonds combined were void as they exceeded the limitation of their power of attorney. After ordering the transcript of the June 30, 2016, hearing, the trial court denied Accredited's motion. The trial court entered summary judgment for $ 290,000 on January 29, 2018.


The distinction is plain between such cases as the present and those arising upon proceedings in invitum against a party, where he is compelled to. give a <mask> or other obligation to procure the release of his person or estate from process or other claims sought to be enforced against him under proceedings void for want of jurisdiction in the officer who assumes to exercise it, and where the power under which a wrong is attempted to be enforced only originates in such void jurisdiction. The voluntary presentation of such a bond as that sued on in this case, for the purpose of acquiring rights not previously possessed by the party offering it, brings the case within the principle of both legal and equitable estoppel, by which a party is precluded in a court of justice from denying his own acts and admissions, where they were designed to influence the conduct of another, and did so influence it, and when such denial would operate to the injury of the latter (Dezell v. Odell, 3 Hill, 215; Herm. on Estop. §§ 320, 321), or has bound himself by a written instrument for the fidelity or good conduct of another in a private trust , or public duty, for acts done in that capacity (Herm. on Estop. §§ 250, 251). The authorities of our own courts fully sustain the liability of the defendants as sureties upon the bond in suit for the assets that came into the hands of the principal, the administrator, without right of question as to the jurisdiction of the surrogate by whom he was appointed to office.


However, the force of the Taylor case as an authority has been weakened, if not overthrown, by Philadelphia & Reading R. R. Co.’s Appeal, 4 Am. & Eng. R. R. Cases, 118. The same <mask>, the issue of which was declared in the Taylor case as being beyond the power of the railroad company, was in the year following the decision of the Federal court held by the Supreme Court of Pennsylvania to be legally issued as an incident of the company’s power to borrow money, notwithstanding that it took away the right of redemption. The reasoning of the court in upholding the legality of the bonds is strikingly applicable to this case. I therefore give the following extensive quotations from page 122, et seq.: “It is urged however, that this transaction is not a borrowing of money within the implied powers of jhp. company; that the meaning of the word ‘ borrow ’ as applied to moneyed transactions involves an obligation to return the sum or thing borrowed. This is a narrow view of the subject. It is true we often use this word in the sense of returning a thing borrowed, not specie, as to borrow a horse. But it is not limited to this sense.”


In contrast to the strict construction of the statute urged herein by defendant, plaintiffs, in pragmatic fashion, point to the reality of the situation, by which defendant was permitted to use the initial down payment for its own purposes during the period after the <mask> was filed. While plaintiffs concede that the statute does not expressly address the issue, they argue that they are entitled to interest during the period since defendant had the use of their money.


Now in the ease before us, as heretofore stated, the plaintiff by affidavits showed a voluntary destruction of the notes, and then gave in evidence the <mask> which describes the notes as having been executed. *225This is the entire testimony upon this branch of the case. The affidavits being addressed only to the court, solely upon the question of the destruction of the primary evidence, there was no evidence before the jury but the bond,- which only tends to prove the execution, not ft© delivery, of the notes described therein.


Prior to the institution of the instant proceedings, the petitioners sought injunctive relief in the Supreme Court of this county without success and the determination of the lower court was affirmed on appeal. (Prime v. Nichols, 252 App. Div. 446.) Thereafter a notice of claim on the <mask>, demanding immediate payment thereof with interest, was served on the executrix and was formally rejected.


6. Development. The agreement was made by and among Panterra GP, as the sole general partner, and multiple limited partners, under Texas law. The agreement states that “[t]he purpose of the Partnership shall be to engage in any lawful act or activity for which limited partnerships may now or hereafter be organized under the laws of the State of Texas, including the business of providing real property development services.” Exhibit K consisted of documents pertaining to a <mask> to release mechanics lien recorded by Movie Grill and its surety company. The bond to release mechanic’s lien was executed by Movie Grill on October 18, 2018. The bond references the lien in the name of Panterra Development dba Panterra Construction. On May 20, 2019, the trial court sustained the defendants’ demurrer. The court observed that Panterra GP had filed an “ex parte request seeking leave to file an amended complaint to allege an additional cause of action to reform the Agreement due to unilateral or mutual mistake.” However, the court noted: “As counsel for Panterra [GP] conceded at oral argument on the demurrer, the theory of reforming the Agreement based on mistake and thereby putting Panterra [GP] in the position of being the Contractor does not save the cause of action to enforce the mechanic’s lien recorded in the name of Panterra Development as the lien claimant. For that reason, the demurrer to the First Cause of Action is sustained without leave to amend.” The court granted leave to amend the remaining causes of action so that plaintiff could raise its “new theory of mistake with respect to the contract.” Panterra GP’s Third Amended Complaint Panterra GP, filed a third amended complaint, as summarized above. Movie Grill filed a demurrer to the third amended complaint; to which Rosedale joined. The court held a hearing on the demurrer to the third amended complaint on July 26, 2019. The court issued a written ruling on the defendants’ demurrer to the third amended complaint


The referee was right in holding that plaintiff was not chargeable with fraud in telling, at or before they signed the <mask>, that the patent-right notes were not a valid claim against the firm. He *663declared to tbem tbe facts relating to tbe notes, and tbe action brought to enforce tbem, and gaye it as bis opinion that tbe firm was not liable on tbe notes.


The plaintiff is the holder of a <mask> issued by the defendant company in the sum of $1,000, payable by the terms of the bond, to the holder thereof on January 25, 1932. The plaintiff claims to be entitled to judgment on this bond, apparently ignoring other provisions therein contained. From the third paragraph of the bond, it appears that the bond of the plaintiff is one of a series of 790 bonds maturing on different dates. By the fourth paragraph of the bond it is provided that “ The payment of all of said bonds * * * is equally and ratably and without priority or preference of any bond over any other * * * secured by mortgage or deed of trust bearing even date herewith, duly made, executed, acknowledged and delivered by the Company to Herbert S. Martin as Trustee.” The fifth paragraph of the bond provides: “ For a more particular description of the covenants of the Company, as well as a description of the mortgaged property, the nature and extent of the security, the rights of the holders of the bonds, the terms and conditions upon which the bonds are issued and secured and the method of payment thereof, reference is made to the said mortgage or deed of trust.”


The EDJA's current version includes a general definition of "public security authorization": "an action or proceeding by an issuer taken, made, or proposed to be taken or made in connection with or affecting a public security."31 Additionally, Section 1201.021 itself enumerates six categories of "public security authorizations" that are "includ[ed]" within that class.32 SJRA has urged that the subject matter of its claims-the GRP Contracts, the 2017 Rate *667Order, and the rates charged thereunder-implicate two of the enumerated categories of "public security authorizations"-"the execution or proposed execution of a contract" and "the imposition of a rate, fee, charge, or toll or the enforcement of a remedy relating to the imposition of that rate, fee, charge, or toll"33 -or at least come within the general definition, the latter being so because each is an "action" or "proceeding" that SJRA took or made "in connection with" or "affecting" its GRP revenue bonds. SJRA elaborates that "the [GRP Contract] revenues are pledged as the sole security for the bonds; SJRA's <mask> covenants require rates set in compliance with the GRP Contracts; and the GRP Contracts require SJRA to impose a rate at a level that enables payment of the bonds, operation of the plant, and funding reserves."


Objections eleven and eighteen relate to the actions of the executors in the litigation relating to the automobile. The eleventh objection asks the surcharge of the executors in the sum of $10 paid for an appeal <mask> and $169 paid for the minutes of the trial of the discovery proceeding. The eighteenth objection is to the continuance of the appeal in the discovery proceeding. The general guardians of six of the eight infant residuary legatees demand that the appeal be discontinued and that the executors be surcharged in a sum equal to the costs, expenses and fees involved in that proceeding. In addition, the respondent in the discovery proceeding, who is also an unpaid legatee, objects to the actions of the executors in continuing the appeal. At the instance of the residuary legatees, the appeal has been stayed pending the judicial settlement of the executors’ accounts by this court. (9 A D 2d 614.)


This is the testimony of the plaintiff’s own witness, and it is not contradicted. Two or three days afterwards the plaintiff commenced this action. The plaintiff, therefore, when he paid the <mask> and mortgage, knew (or believed) that he was paying more than was owing. The very fact on which he now seeks to recover was known to him and insisted upon by him at that time, and he made the payment with the intention of suing to recover part of it back again. What he has since discovered (as he claims) is not the fact that $200 more than was credited had been paid, but only the means of proving that fact.


AMCC attempts to distinguish Dutchess Quarry & Supply Co., in which the Appellate Division expressly found that the contractual reduction of the time period to assert a claim against *211a payment <mask> is void as against the public policy enunciated in State Finance Law § 137, by the fact that the clause at issue there was a notice provision contained in the payment bond itself, rather than being set forth in the subcontract. However, AMCC’s attempt to apply conditions precedent to suit set forth in the subcontract and not contained in the statute is equally offensive to the policy expressed in the statute regardless of which party created the conditions. See Windsor Metal Fabrications v General Acc. Ins. Co. of Am. (94 NY2d 124, 134 [1999]), in which the Court “refuse[d] to look beyond the face and terms of the bond to the contract provisions” in order to subvert the policy expressly reflected in State Finance Law § 137. Consistent with State Finance Law § 137, the payment bond creates an independent obligation, not contingent upon the terms of the subcontract, to pay for labor and materials provided under the subcontract, subject only to defeasance upon payment by the contractor.5 See Blandford Land Clearing Corp. v National Union Fire Ins. Co. of Pittsburgh, Pa. (260 AD2d 86, 95 [1st Dept 1999]), in which it is noted that where a subcontractor’s right to recover under the contract fails, the subcontractor retains the right to seek compensation from the contractor based upon unjust enrichment, consistent with public policy as expressed in the Lien Law. See also Tri-City Elec. Co. v People (96 AD2d 146, 149-150 [4th Dept 1983], affd 63 NY2d 969 [1984]). Thus, although proof of a right to compensation due is a necessary prerequisite to recovery upon foreclosure of a mechanic’s lien, since foreclosure is itself an equitable remedy, the failure to comply with contract provisions may not preclude proof of an entitlement to recover in quantum meruit or unjust enrichment.


Again, it is claimed that no demand or request for the payment of the balance wras ever made, either to Baker or to Baker’s executors, after his death, and for this reason no recovery can be had. Baker was a public officer. He should have had on hand upwards of $36,000 in cash. As treasurer of the county he had no right to invest the same in individual property of his own. If it was not on hand, it was because he had wrongfully converted it, for which he would be liable criminally. In such cases no demand is necessary before action is brought to recover the same. The condition of the <mask> does not require it. The condition is that he shall pay according to law, not wpon demand, all moneys which shall come to his hands ; that he shall render a just and true account thereof, etc. His last report rendered was not a just and true account. He did not pay according to law these moneys, nor account for the same. On his death his executor did not pay over the moneys on oath, as he was required to by law, and for the very good reason that they were not found on hand.


It is, however, claimed by the defendant that the <mask> in question is not a contract of insurance. It maintains that it insures the *158United States government against the failure or default or improper acts of plaintiff, but does not agree to pay plaintiff any sum under any circumstances, either as indemnity or otherwise. It is true that the contract in this case is in the form of a bond of indemnity, but that does not alter the fact that it is essentially a contract of insurance and governed by the rules of law applicable thereto. Speaking of fidelity insurance it is said in 25 C. J. 1089: “ It is well established that guaranteeing the fidelity of employees and persons holding positions of trust is a form of insurance, and that such a contract is subject to the rules applicable to insurance contracts generally, and not to the rules applied to ordinary sureties for accommodation.”


Although the life tenant is not specifically named as a trustee in so many words, he nevertheless becomes trustee for the remainder-man, and if it should be claimed that he should give a <mask> as being on the basis of a testamentary trustee, under section 169 of the Surrogate’s Court Act, it must be remembered that that section does not require the giving of a bond by the trustee where *22the will was executed prior to September 1, 1914. See Matter of Michel’s Estate, 160 N. Y. Supp. 520.


None of the authorities with which the court is familiar has indicated the number of instances of wrongdoing which must be shown to have occurred in order to establish that such a habit of mind exists. This court is unprepared to make the dogmatic *101assertion that two or three deviations from, the path of rectitude such as have here been demonstrated to have occurred would inevitably establish this requisite mental attitude, nor would it asseverate the contrary. Whichever answer to this question were to be adopted, however, it would be the height of folly to intrust the affairs of the estate to the unrestrained disposition “ without <mask> ” of one who has prima facie demonstrated to the satisfaction of this court his untrustworthiness in estate affairs. The determination in a competent court of the actual existence or non-existence of such unworthiness cannot be long delayed and is conceivably capable of acceleration by the applicant himself, if he so elects. If appointed at the present time and convicted, his removal would inevitably follow on the motion of the court itself. (Surr. Ct. Act, § 104, subd. 6.) If acquitted, the granting of an application for subsequent appointment would follow on the record as presently constituted. The slight attendant delay would not greatly prejudice his rights, whereas a present appointment might conceivably be attended by serious consequences to the estate. The court accordingly determines that on the record as it stands, Isidore is incompetent to receive letters within the inhibition of subdivision 5 of section 94 of the Surrogate's Court Act.


The plaintiff, in its motion for summary judgment, refers to paragraphs 1, 2 and 3 of the complaint alleging the execution of the <mask>, an acceleration clause in case of default. It also refers to paragraph 4 which alleges an extension agreement and paragraph 5 citing certain provisions of the mortgage. None of these instruments or documents have been submitted to the court on plaintiff’s motion. A motion for summary *280judgment requires the submission of evidence, not mere referral to recorded instruments.


The case of Duncan v. Lyon, 3 Johns. Ch. R. 351, is an important one on this subject, and decides expressly, that unliquidated damages are not the subject of set off. A suit at law had been brought to recover damages from the defendant, for his refusal to perform his part of a contract in furnishing timber, provisions, &c.; the defendant wished to set off damages *122which he claimed out of the same contract, Chancellor Kent says, the demand at law was in the nature of redress for a wrong-or injury committed, and not for a debt due; it rested entirely in uncertain and unliquidated damages. There cannot be a set off, even of a debt against the demand of the plaintiff, unless that demand be of such a nature that it could be set off by a defendant, if it existed in him. There must be mutual debts. This is the settled doctrine in the courts of law. The case of Howlet, &c. v. Strickland, 1 Cowp. 56, determines the same point. It was an action of covenant; the defendant pleaded that he had sustained greater damages by reason-of the breaches committed on the part of the plaintiff than the value of the damages sustained by the plaintiff, on occasion of the breach alleged in the declaration. There was a demurrer to the plea, because these damages could not be pleaded by way of set off. Lord Mansfield said, the act of parliament and the reason of the thing, relate to mutual debts only; these damages are no debts. Aston, justice, said an unliquidated demand, or uncertain damages, cannot be set off. Weigall v. Waters, 6 T. R. 488, was covenant for rent, by the landlord; the tenant was not permitted to set off uncertain damages arising from a breach of the covenants b; the landlord in the lease on which the action for the rent was founded. Montague on Set-off, 20, 21. There must be mutual debts to be set off. The demand of the plaintiff and the demand of the defendant must be a debt. A set off cannot be pleaded to a debt on <mask>, conditioned for the performance of covenants, where damages are to be assessed by a jury, nor to an action for general damages in covenant or assumpsit. Bornman v. Tooke, 1 Esp. N. P. 278, was an action of assumpsit, for freight upon a cargo of timber. The freighter agreed to load his ship with the greatest expedition, and sail with the first fair wind, direct to Portsmouth: the ship arrived, and the cargo was delivered. The plaintiff brought his suit for the specific freight agreed. upon. The defendant claimed damages, because the ship had not sailed direct to Portsmouth. It was held, that as there was a specific agreement for specific freight, the defendant should bring his cross action for any damages he might have sustained by the default of the plaintiff. In Gordon v. *123Bowne, 2 Johns. R. 155, it is determined that a set off cannot be permitted to a count on an open policy of insurance. A promissory note on the part of the defendant cannot be set off against a demand of the plaintiff, unless that demand be of such a nature that it could be set off by a defendant if it existed in him; to be set off, the demands must be mutual. In Livingston v„ Livingston, 4 Johns. Ch. R. 292, it is said to be well understood that uncertain damages are not the subject of set off. In Sherman v. Ballou, 8 Cowen, 310, Chief Justice, Savage, speaking of a set off, says, the rule in a court of law is, that the cross demand to be set off must be liquidated, founded on contract, and one for which an action can be sustained at law. In Watts v. Coffin, 11 Johns. R. 494, it was held, that the violation of the covenant on the part of the grantor, to allow common of pasture, and of estovers, was no defence to an action for rent; and it was there said, that there never was a case of set off in equity where the damages proposed to be set off against a clear and certain debt were unliquidated, and depended upon an unsettled legal right of doubtful aspect


The agreement was thus, in effect, incorporated in and formed a part of the <mask>; and the condition of the bond was the payment of the sum of five hundred dollars, if, according to the provisions of the agreement, that sum should become payable to the plaintiff. Both the bond and the agreement contemplate the performance of the covenants contained in the agreement on the part of De Forest, and the payment to the plaintiff of five hundred dollars, in- case he should fail to keep, or should break the agreement.


Dominic R. Massaro, J. Huwe Burton was arrested on January 6, 1989, and charged with the murder of his mother. Indicted for this and related crimes, the then 16-year-old tenth grader was arraigned on February 8th; bail was set in the amount of $150,000 cash or surety <mask> (Hecht, J.). Thereafter, Mr. Burton’s case was referred to this court for all purposes. On February 23, 1989, on application, the bail amount was reduced to $100,000. In order to gain his liberty pending trial, and in accord with the New York bail statutes, Mr. Burton attempted to post a bond secured by real property.


The participation in the mortgage in question was mentioned in several schedules of the 1930 account. It is first mentioned in Schedule C, Part II, showing investments by the trustees, as follows: “ 1929 Nov. 25 Purchased $123,000 Participation interest in $650,000 <mask> and mortgage of Nathaniel W. Keane covering premises 1186 Lexington Avenue and 112-4 Bast 81st Street, Borough of Manhattan, City of New York; interest at 5%% payable May and Nov. 25th $123,000.00 ”. Other references to this investment in said account were in substantially the same language.


The action is on a <mask>, conditioned tliat the defendant Giles S.. Brisbin should faithfully discharge the trust reposed in him as executor arid trustee under the will of Catharine S. Bailey, deceased. The complaint contains two counts. The demurrer is to the entire-pleading on the ground that it does not state facts sufficient to constitute a cause of action. If therefore either be good the demurrer was properly overruled. The point of the demurrer is this : that the liability of the sureties (the parties demurring) is not shown in and by the complaint, inasmuch as it contains no averment that the default of the executor had been established against him by the order or decree of the Surrogate’s Court, and we are cited to section 2607 of the Code of Civil Procedure, and to Hood v. Hood (85 N. Y., 561) in support of this objection to the pleading. The answer of the plaintiffs counsel to this objection is that the first count in the complaint charges a breach of the bond in this; that the executor had been guilty of gross neglect and bad faith in omitting to sell the real estate of the deceased and to invest the proceeds-thereof as directed and required in and by the will, and that over such breach and as to such ground of action the Surrogate’s Court had no jurisdiction. Undoubtedly, the counsel is right in lii-s position that the surrogate had no jurisdiction over this subject. If so, the plaintiff is pursuing the only remedy available, or that can be made available to her. The case of Hood v. Hood does not determine the point against the plaintiff. There the action was-brought to compel an aaooimting by the executrix and executor, and to charge the executor with funds of the estate alleged to-have been misapplied and converted by him to his own use, and to compel his sureties to pay the sum or amount with which he should properly be charged. That was a matter over which the surrogate had jurisdiction. Not so here. This suit is-for damages, not to recover a balance to be found due on an accounting. How much may be recovered, or whether the recovery can be more than nominal, is not a question here before us. That will become matter of proof on the trial. Here it was impossible to obtain a judgment or decree in the Surrogate’s Court for *581the breach of the bond counted on. In such case an action may be maintained for such breach by the injured party without attempting an impossibility. (Williams v. Kiernan, 25 Hun, 355; Haines v. Meyer, Id., 414, and cases there cited.) The doctrine of these cases is not impugned by the decision in Hood v. Hood. That case holds this, and this only, that where the remedies required to be pursued may be pursued, they must be resorted to. But the rule is there recognized that where special circumstances exist showing a necessity for the interposition of the court in order to the attainment of a right, and those circumstances are stated, the court will not hold that which is impossible to be a bar to an action for relief.


The case of People v. Jayne (27 Barb., 58) holds that a <mask> conditioned to appear on a certain day and not depart without leave, is valid ; and also that such a bond is broken, it tire accused person departs during that day and before the final decision. It decides nothing on the question whether^ if the justices make another adjoui’nment to a day some three weeks distant, the sureties are bound to produce the accused at that time. So the case of People v. McCoy (39 Barb., 73) decides that a recognizance to a term of the Oyer and Terminer requires the party to be present at any time during that term before his case is disposed of. Such a recognizance, unlike the present bond, requires him to abide the decision of the Court. But the case does not decide-that such recognizance binds him to appear at another term. (People v. Greens, 5 Hill, 647.)


It has been contended, that if the appellant took nothing as assignee of the mortgage, by reason of the merger, then he is entitled to the premises, under the words granting the same to him, his heirs and assigns forever. This ground, I think, would be tenable, if the granting words were not restricted in their operation; but the habendum is, “ to hold the same as fully as the mortgagee might hold and enjoy the same by virtue of the mortgage and <mask> accompanying the same.” These expressions unequivocally show that no right or title was granted, but such as might be acquired by the assignment of a subsisting mortgage.


See Andrade v. N.A.A.C.P. , 345 S.W.3d 1, 7 (Tex. 2011) (recognizing general rule in Texas that "a citizen lacks standing to bring a lawsuit challenging the lawfulness of governmental acts"); Bland Indep. Sch. Dist. v. Blue , 34 S.W.3d 547, 555-56 (Tex. 2000) (explaining that "[u]nless standing is conferred by statute" or claimant can show "a particularized injury distinct from that suffered by the general public" with respect to "challeng[ing] a governmental action or ... assert[ing] a public right," the claimant must come within "long-established exception to this general rule" by which "a [property] taxpayer has standing to sue in equity to enjoin the illegal expenditure of public funds, event without showing a distinct injury"); see also Williams v. Huff , 52 S.W.3d 171, 180 (Tex. 2001) (holding, "for prudential reasons, that paying sales tax does not confer taxpayer standing on a party" while acknowledging that status as property taxpayer would suffice); Alejos , 433 S.W.3d at 122-24 (observing that EDJA would facially permit "interested party" to intervene, subject to the security-<mask> requirement, despite lacking either a particularized interest or taxpayer standing).


On the 17th of August, 1866, whilst the vessel was held under the first attachment, a second attachment was issued in the Circuit Court of Norfolk, which was served by a delivery of a copy of the writ to the general agent in charge of the steamer, the vessel then being in the possession of an officer of the court under the first attachment. On the 3d of September, 1866, the steamer was released from the first attachment by the giving of a <mask>, upon which day, the plaintiff in the second attachment, to enable him to take and hold possession of her, gave the requisite bond under the Virginia statute; but when the officer of the court proceeded to the wharf, she had been cast loose, and was moving down the river on her way to Baltimore, to be delivered to the plaintiff, so that the officer could not take possession of her. The second attachment was in a suit brought against the defendant. The plaintiff in that suit pro*255ceeded against the defendant hy the publication of a summons, and at the expiration of the period of publication, the defendant not having appeared in the action, judgment was recovered against him on the 25th of June, 1868, by default, for $53,879 35. The plaintiff, after the recovery of this judgment, instituted proceedings in the same court for the sale of the steamer, and the plaintiff in the present action, upon receiving-notice of the motion for the sale of the steamer, at once took steps to defend its title, and, as it was authorized to do under the Virginia Code, it, on the 29th of January, 1869, presented a petition to the court, disputing the validity of the attachment, claiming title to the steamboat as the owner of it, and simultaneous with this petition it tendered a plea to the jurisdiction of the court, and moved to quash the attachment.


The bank contends that until it sees fit to institute some positive action in the premises, to foreclose either on the land or on the collateralized stocks, or to begin action on the <mask>, it cannot be forced to change its original position, nor to surrender any of its security, or any property lodged with it under a pledge of such general scope as Exhibit 8 expresses.


The evidence shows that the properly thus conveyed to Mesick is worth about one million ($1,000,000) dollars, for which he paid at the time the conveyance was executed, $500. He has since paid the further sum of $900, He also executed to Sutter, Jr., a <mask> in the penal sum of $25,000, the conditions of which as testified to by the witness are “ very singular.” The bond was probably given to secure the payment of a certain portion of the proceeds that Mesick might realize from sales. Mesick’s object in connecting himself with the Recorder’s office was to engage in a gigantic speculation—having devoted from one to two years to an examination of the records, having ascertained each and every flaw and defect, he takes counsel and proceeds to Acar pulco to accomplish his ends; although he was well aware that the property that he was thus seeking to obtain had been previously sold and purchased in good faith; that a valuable consideration had been paid for it—that it embraced a large portion of the real estate in this city—that valuable buildings had been erected upon it, and large sums of money expended in improvements. Although he was well aware that it was held by innocent parties, and who, for years, (so far as the gutter title was concerned,) had been in the undisputed possession of it. Although he well knew that from many he was endeavoring to take their homesteads, acquired, perhaps, after many years of hard toil and *35labor. Although he was well aware that he was seeking to take from Ms neighbors that which rightfully and justly belonged to them; that he was throwing a cloud upon titles in this city, and thereby impairing and retarding its prosperity and growth; notwithstanding all this, he asks the Court to aid'and assist him in carrying out his gross speculation, I should regret to learn that in any civilized country such a fraud could be successfully perpetrated,


It is immaterial in this case, whether the statute begins to run from the date of the <mask> and notes on which the plaintiff ivas bound for M., or from the forfeiture of them, or from tlie earliest payment in 1800, or the latest *293payment in 1810; because, in the last case, the statute had closed upon the demands before the death of M. But I should think the plaintiff had a cause of action when the notes and bonds became payable, and were not paid by M.; and he certainly had, upon the first payment. The breach of the contract existed then, and the statute ought to be computed to have run from 1800, or twenty years and more before the death of M. In Battley v. Faulkner, (3 Barnw. & Ald. 288.) A. delivered to B. wheat, but not of a quality according to contract. B. was compelled by a suit in Scotland, which lasted many years, to pay damages to his vendee, and he then brought assumpsit against A., for breach of contract, alleging, as special damage, the damages so recovered. And it was held, that though such special damages occurred within six years, yet the breach of contract, the gist of the action, was known to B. more than six years before, and the plea of the statute of limitations was held good.


For some time, it has been the public policy of this State “to give the court in which the foreclosure of the mortgage was had, full jurisdiction over the whole subject * * * and to allow one court to dispose of the whole subject The policy “ is applicable to every case where the owner of the mortgage has any personal security for the mortgage debt, whether it be the '<mask> df the mortgagor or the covenant of another person” and its purpose is “to confine all the proceedings to recover a mortgage debt to one court ”. (Scofield v. Doscher, 72 N. Y. 491, 493-494.) Accordingly, pursuant to section 1313 of the Real Property Actions and Proceedings Law, the bank, if it had elected to do so, could have joined Amak in the farm mortgage foreclosure action (Weinstein v. Sinel, 133 App. Div. 441, 442) and, pursuant to subdivision 1 of section 1371 of the Real Property Actions and Proceedings Law, could have sought a deficiency judgment against Amak as one “ severally liable ” (Kerhonkson Nat. Bank v. Granite Sunshine Hotel, 26 A D 2d 713, 714).


In declaring the statute at issue unconstitutional, Judge Delahanty took it upon himself to decide whether the statute was in the public's interest. He also questioned the timing and wisdom of the *509General Assembly's decision to allow county attorneys to operate traffic safety programs. "This is precisely the type of intrusion our separation-of-powers provisions were enacted to prevent." Appalachian Racing, LLC., 504 S.W.3d at 6. While Judge Delahanty may personally believe that state traffic school is superior to any program established by the county attorney, the General Assembly clearly thought otherwise. "[T]he Legislature by its statutory declarations is supreme in the adoption of what may be the state's public policy on a particular question." Bankers <mask> Co. v. Buckingham , 265 Ky. 712, 97 S.W.2d 596, 600 (1936). "It is beyond the province of a court to vitiate an act of the legislature on the ground that the public policy therein promulgated is contrary to what the court considers to be in the public interest." Owens v. Clemons , 408 S.W.2d 642, 645 (Ky. 1966).


In Dance and Girdler, 1 New Rep. 34, which was an action on a <mask> payable to the plaintiffs and others, as “ Governors of the Society of Musicians,” and their successors, conditioned for the accounting to them and their successors for all money received by one Jesse Harwood, upon order of plaintiffs or their successors, the obligees being then an unincorporated voluntary society. The society being afterwards incorporated, it was held that the defendant was not liable for the not ac*374counting for moneys of the society received after the act of incorporation. In all these cases it will he perceived that the doctrine was, that the defendant could only be held liable for the very breach described in the condition of the bonds respectively, and only to the very persons to whom he became bound when he entered into the obligation, i. e., to the persons in whom the legal interest in the contract was vested, and who alone would have had a cause of action had the breach occurred immediately after the execution of the bond or covenant.


that it could infer a likelihood of success from the breach of the restrictive covenant. But, crediting the testimony of Elegance’s chief executive officer, the district court found that “there [was] ab- solutely no evidence that Alfieri or LaRocca took any information with them from [Vital] to Elegance” or that Elegance had seen any of Vital’s confidential information. So, Vital could not “make a prima facie showing that Alfieri or LaRocca breached their [agree- ments].” The district court also determined that Vital had satisfied the other elements necessary to secure a preliminary injunction against Maros. Under Florida law, the district court explained, Vital was entitled to a “presumption of irreparable injury” because it had proved “[t]he violation of an enforceable restrictive covenant,” id. § 542.335(1)(j), and Maros had not rebutted the presumption. The balancing of harms favored Vital because the district court was un- able to “consider any individualized economic or other hardship that might be caused to the person against whom enforcement is sought.” See id. § 542.335(1)(g)(1). The public interest favored the enforcement of the restrictive covenants. And Maros’s defenses to enforcement failed. The preliminary injunction contained five operative provi- sions. First, Maros was “enjoined for a period of twelve . . . months,” “calculated from” the date Vital posted a <mask>, “from working for Elegance” or other competitors of Vital. Second, Ele- gance was also prohibited during the same period from employing Maros or using any of Vital’s confidential information. Third, USCA11 Case: 20-14217 Date Filed: 01/20/2022 Page: 7 of 34


This court is convinced that where a foreign judgment debtor raises grounds for a stay which would warrant a court in granting relief to a New York judgment debtor, the fact that the foreign jurisdiction requires a <mask> should not preclude relief under CPLE 5404 (subd [b]). In the case of Everson v Everson (494 Pa 348) the appellant was appealing an Arizona judgment and was denied a stay under the Pennsylvania Uniform Enforcement of Foreign *232Judgments Act, because he failed to post the necessary bond in Arizona. Nevertheless, the Supreme Court of Pennsylvania reversed the lower court and ordered a stay without the necessity of posting any security. Thus that court held (pp 359-360) that “[wjhile enforcement of the Arizona judgment was technically permitted by the Uniform Enforcement of Foreign Judgments Act, general principles of law relating to the enforcement of judgments suggest that execution on the January 25, 1977 judgment be stayed on equitable grounds due to the proceedings in Arizona subsequent to appellee’s transfer of the judgment to Pennsylvania.”


Thomas A. Stander, J. Plaintiffs commenced the instant action by filing a complaint seeking recovery of sums allegedly owed to them by Industrial Contracting, Inc. (Industrial). The basis of this action is a written surety payment <mask> executed by defendant Washington International Insurance Company (Washington), dated September 1, 1995 (Bond), naming defendant D. R. Chamberlain Corporation (Chamberlain) as principal. The Bond relates to a project undertaken by Chamberlain as general contractor for Niagara University. Chamberlain, in turn, subcontracted a portion of its work to Industrial.


*430A voluntary conveyance is defined to be a deed without any valuable consideration. [1] In this the books all agree; and I do not understand the counsel in this case to differ resPectinS & TIie adequacy of the consideration does not enter into the question, and only becomes material4o ascera fraudulent intent. But the character of purchase or voluntary is determined by the fact, whether any thing va^ua^e passed between the parties. The execution of a <mask> to pay the purchase money, made in good faith, and inten<íe<lto be paid, is a valuable consideration, and makes the transaction a purchase, as much as the actual pavment „ T. . * ' , , „ _ í J oí money. If it does not, then one half of the titles to lands in this state are invalid; and it is too late to inquire whether a security for money accepted by the the grantor, is not equivalent to money. If, then, William Seward had taken from Philander Seward his bond for the payment of the purchase money, with a fair and bona fide intent, on the part of both, that it should be paid, and it was not merely colorable to conceal a fraudulent transaction, if Philander had entered into the possession of the premises, and the whole had been open, public and avowed, surely no cou^ doubt that it was a purchase. If, instead of ^“g a bond for the payment of a gross sum of money,. *430-1he had taken one to pay such an annuity as-the parties, upon a fair calculation of all contingencies, .deemed •alent to the price agreed to he paid, surely the transactions must be viewed m the.same light as if the.money were paid, or a bond for its payment had been taken. And if .securities for the payment of the purchase money ¡to himself had ¡■been taken, and he had-assigned those securities to a third person, no one-would-have,pretended that it was not a-pur-chase for .a .valuable consideration.; and whether the securities are taken, directly to .such third person, or indirectly, through the medium of an assignment, cannot vary the case. . In this plain and common sense view of the case, ■the taking of the bonds by William -Seward, for the payment of part of the purchase %ioney to his daughters, must be considered -the .same as if taken to himself, and by him given to his daughters; and therefore the transaction was upon a valuable consideration, and . a purchase to all intents and purposes.


Pursuant to the provisions of subdivision 2 of section 124 of the Civil Practice Act, the plaintiff will be ordered to file within five days after the service of a copy of the order hereon, with notice of entry, a <mask> in the sum of $2,500 or deposit a like sum of money to indemnify the defendants for any and all damages that may be incurred if the notice of pendency is not cancelled. In the event of the failure of plaintiff to file such bond or deposit such money, defendants may have the notice of pendency can-celled by filing a bond in the sum of $5,000 or depositing a like sum to hold the plaintiff harmless for any damages he may sustain. Further, in accordance with the quoted section, either party may move to increase or decrease the amount of the bond or deposit.


Although it could be argued that SCPA 801 (1) only permits the court to dispense with the <mask> or to reduce the amount of the bond when specifically authorized to do so by another provision of law (see, SCPA 805), this argument runs contrary to the principle that different statutes should, where possible, be read in a manner which is harmonious and carries out the over-all legislative intent. It does not make sense to conclude that the Legislature wanted to give the court more discretion in fixing the amount of the bond of a testamentary trustee as opposed to an administrator, as evidenced by the express provisions of SCPA 801 (1), while at the same time giving the court authority to dispense with a bond for an administrator under SCPA 805 and withholding that authority from the court with regard to a testamentary trustee. Instead, the provisions of SCPA 806 as read in conjunction with the provision of SCPA 801 (1) (c) should be interpreted as requiring a testamentary trustee to file a bond where the will does not exempt the trustee from this requirement unless clear and convincing reasons are presented to dispense with the bond or to fix it at a reduced amount. Such clear and convincing reasons are presented to dispense with the bond or to fix it at *548a reduced amount. Such clear and convincing reasons might be the consents provided for by SCPA 805 or a showing that the filing of a bond is not economically feasible.


If there had been no such provision in the statute, one who was-about to lend money to the town, through the commissioner, might-well have inquired how he could be certain that the majority of tax-payers had consented. And, even if he should examine for himself (had this been possible), and should become satisfied that a majority had consented, he might fear that, when the bonding of towns should become unpopular, a jury might come to a different, conclusion. Therefore, to enable the town to borrow, and to protect the lender, the legislature authorized him to ascertain from the town clerk’s office, or the county clerk’s office, whether or not the fact that a majority had been obtained had been proved. To that proof he was justified in trusting. To permit the fact thus proved to be now re-examined by another tribunal, as against a. <mask> fide holder, would be a great injustice.


The <mask> executed by the administratrix c. t. a. herein is dated June 23, 1926, and was conditioned upon the faithful performance of the duties of the administratrix c. t. a. and that she will “ obey all lawful decrees and orders of the Surrogate’s Court of the County of Westchester touching the administration of the estate ” (Surrogate’s Ct. Act, §§ 121, 135).


*497In the attempted transference, into the Code, of the well considered scheme of the Revised Statutes in regard to non-resident executors, an important provision seems to have been overlooked. I refer to the provision which permitted an executor whose letters were sought to be revoked on account of his removal or intended removal from the State, to prevent such revocation by the interposition of a <mask> (R. S., part 2, ch. 6, tit. 2, §•§ 20, 21; 3 Banks, 6th ed., 75). As the law now stands, this is impossible. If it is shown that after the grant of letters an executor has abandoned his residence within the State, or is about to abandon it the Surrogate must (except in certain cases which will hereafter be noted) decree revocation.


In Johnson v. Meyer (242 App. Div. 798; affd. without opinion, 268 N. Y. 701) the complaint alleged the making of the <mask> and mortgage and the agreement therein by the defendant to pay interest semi-annually and to pay taxes as they accrue. The action was not brought to recover the principal of the bond or to foreclose the principal of the mortgage but was brought only to recover unpaid installments of interest and, also, unpaid taxes which had been paid by the plaintiff. The defendant, by answer, alleged that the market value of the property exceeded in amount “ all sums due the plaintiff under the bond ” and that, therefore, under section 1083-b of the Civil Practice Act, the plaintiff may not have judgment if the fair and reasonable market value of the property equals or exceeds the amount which might be claimed as a deficiency and that the fair and reasonable value of the premises there in question was not less than the amount recoverable as a deficiency. The Appellate Division held that sections 1077-a, 1077-b and 1083-b of the Civil Practice Act do not prevent the plaintiff from suing for interest which had accrued and was unpaid and for taxes which *689had become due, were unpaid and had been paid by the plaintiff, Mr. Justice Hagartt concurring as to the taxes but dissenting as to the interest. The Court of Appeals affirmed the Appellate Division without opinion. (Johnson v. Meyer, supra.) Hence, it was definitely determined in that case, with respect to a bond and mortgage subject to the Moratorium Acts, that the owner of the bond and mortgage might sue and recover unpaid interest and taxes and that the market value of the premises was no defense to such an action. Section 1083-b of the Civil Practice Act provides that in an action upon the bond to recover a judgment “ for any indebtedness secured by a mortgage,” ány party against whom a money judgment is demanded may set off the fair and reasonable market value of the mortgaged property.


We are at a loss to understand how, upon a trial before a court of special sessions, the defendant can raise the question as to the regularity of the official <mask> of the presiding magistrate here suggested. It would be somewhat extraordinary for a judicial officer gravely to take evidence regarding the validity of his own title to the office which he fills, and to then determine, from the weight of that evidence, whether or not he was qualified to act. The embarrassment which would result from such a procedure is so apparent as to make comment or citation of authority unnecessary. If, in fact, the justice is not legally qualified, the law affords an adequate and speedy method of ousting him from the office which he usurps; but our system of jurisprudence hardly goes to the extent of authorizing a proceeding so abounding with possibilities for making the administration of justice ridiculous as to permit him to act as a judge in determining whether or not he is one. It does not sufficiently appear from the record transmitted to us that there was any transgression by counsel for the prosecution of the statute forbidding a reference to the failure of the defendant to testify in his own behalf; nor can we see any reason for disturbing the conviction. Judgment and conviction affirmed.


The 1999 will provides that the decedent’s residuary estate shall be distributed 50% to Audrey Sandler and 50% to Bruce Gillman and his wife, Francine Gillman. The 1998 will, however, provides that 50% of the residuary estate will be distributed to Audrey Sandler, 25% to Audrey Sandler’s son, Brent Sandler, and his wife, Susan Sandler, and 25% to Bruce Gillman and his wife, Francine Gillman. All of the wills contain an in terrorem clause and dispense with the filing of a <mask>.