
    Martha E. Seymour, Appellant, v. The Spring Forest Cemetery Association and Others, Respondents.
    
      Cemetery association'—failure to apply seventy-five per cent of the receipts from sales of lots upon its bonds—interest, when not computed with a rest at the date of commencement of the action—liability of trustees for‘money had and received—possession of property by trustees, not an individual possession — excusable mistahof law—interlocutory judgments, how far renewable upon appeal—effect on an appeal of the receipt of part of a judgment.
    
    In an action brought to enforce the collection of certain bonds of a cemetery corporation, the plaintiff, on June 30, 1891, obtained an interlocutory judgment for an accounting, from which the defendants appealed to the General Term, where the judgment was modified, and as modified affirmed, and as affirmed was • entered on July 33, 1893; the accounting was had, resulted in a final judgment in favor of the plaintiff against the corporation defendant, but as to the individual defendants the complaint was dismissed. The defendants then appealed to the Court of Appeals, where the judgment was affirmed and judgment was entered on the remittitur; subsequently the plaintiff appealed from parts of the interlocutory judgment of June 30, 1891, and of the interlocutory judgment of July 33, 1893, the' latter being the judgment of the General Term, which took the place of the former judgment rendered at Special Term.
    
      Held, that a review of both interlocutory judgments was permissible for the reason that, under section 1350 of the Code of Civil Procedure, there were questions (other than those already reviewed on the appeal to the General Term) which could be raised upon the proceedings to take final judgment, and that as the appeal was .effectual for some purposes it could not be dismissed because not available for others.
    Where a plaintiff claims that a judgment is too small, the receipt of a part "of the judgment' upon an undertaking given by the defendants upon an appeal to the Court of Appeals, and her receipt of costs awarded to her absolutely upon an appeal to the General Term, do not preclude her from attacking the judgment upon points not raised before. .
    "Where an action is brought to recover the amount of certain payments which it is alleged that a corporation ought to have made but did not make, the plaintiff is not entitled, for the purposes of computing the amount of interest due upon the account, to make a rest at. the date oí the commencement of "the: action, with a view to securing compound interest upon the aggregate amount of principal and interest then due, from the date of the commencement of the1 action up to the date of the' entry of judgment.
    In an action brought to enforce the payment of certain bonds of a corporation, it. appeared that in 1853 nine out of eleven owners of certain lands determined to: incorporate as the Spring Forest Cemetery Association, under chapter 138 of ' the Laws of 1847, as. amended by chapter 122 of the Laws of 1853, and in 1854 the land was conveyed to the corporation. In 1855 bonds having a face value of $15,000 were issued, and in 1866 other bonds having a face value of §3,000 were issued; each bond issued iti 1855 recited the price of the land as §30,000, and that it was to be paid ,for by applying during the first two years fifty per cent of the sale of lots and other receipts and thereafter seventy-five per cent of the same, application to be made by semi-annual-dividends, the rest " ' of the receipts of all kinds to b'e expended to- improve the cemetery, and each bond -issued in 1866 having the. same conditions except the one increasing after two yéars the amount applied to their payment to seventy-five per cent .of the sale of lots and receipts. As to the .'amount which might be applied in pay? ment upon the bonds the Court' of Appeals in this case held that the .agreement to pay seventy-five per cent, incorporated, in- the bonds of 1855, was valid, not? withstanding the fact that the statute contemplated a payment of only fifty per. cent of the proceeds of sale of lots or plots on bonds issued to pay for the cemetery land, for the reason that these bonds covered not only the purchase price of the land but also the value of improvements.
    It appeared, upon, the basis of the receipts from 1878 to 1889, that, after applying seventy?five per cent of them to the bonds of 1855 and fifty per cent of" them to the bonds of 1866, the amount paid for expenses exceeded what might lawfully have been paid during this period by "the "sum of §3,347.21, and the plaintiff .claimed that the defendants were personally liable for having made this alleged illegal payment.' ' •
    
      Held, that the defendants were not personally liable for the sum of $3,347.21;
    That although they admitted that they were in possession of the property it .. appeared that, in fact, none of them, had any possession of thé property except as trustees, and that, consequently, they were not individually liable to an action as for money had and received; .'
    That, as there was no allegation of any tortious act on "the part of the defendants, and as the liability in question was not statutory, but rested purely upon contract’ and the trustees had acted in good faith, they were' not liable in tort;
    That the-validity of the promise by the corporation to pay seventy-five-per cent of the receipts upon the bonds, although held valid in the Court of Appeals, presented up to ..that time a reasonably doubtful question of law,' and that the defendants .were not liable for the consequences of an excusable misfake of law-;
    That where trustees, acting in good faith, applied money to the' use of the corporation, which should have been applied inpayment' of its bonds,' they should . not be held personally, liable where the corporation itself had already been held . liable; , ’
    
      That the plaintiff had not an additional remedy under chapter 163 of the Laws of 1860, providing that such trustees should keep a separate account of certificates for the purchase money of a cemetery and of certificates issued for improvements, and should apply, at least twice a year, the proceeds of the sale of lots in the manner provided hy the law of 1847, as amended in 1853, for the reason that no such remedy was asked in the complaint, and because the action was not one for damages for a neglect of duty.
    Appeal by the plaintiff, Martha E. Seymour, from portions of a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Broome on the 4th day of July, 1893, upon the report of a referee, as follows:
    
      First. From that portion of the said judgment which limits the amount of recovery of damages entered in' said judgment to the sum of $14,613.69, plaintiff claiming that such amount should be increased by the addition'of $602.37, being the amount of interest on $2,504.64 from July 1, 1889, the date of the bringing of the action, to July 4, 1893, the date of the final judgment; said sum of $2,504.64 being the accrued interest unpaid July 1, 1889, on principal which had previously become due from time to time, pay.ments of which had been demanded when due, and which payments were refused, as admitted in the answers, and found in the interlocutory judgment.
    
      Second. From that portion of said judgment which adjudges and decrees “ that the plaintiff is not entitled to a judgment against the individual defendants, or any of them.”
    
      Third. From that portion of said judgment that adjudges and decrees “ that as to the defendants, Tracy R. Morgan, Job Y. Cong-don, Benjamin De Yoe, Edward B. Stephens,'Alonzo C. Matthews, Harris Gr. Rodgers, Robert Brown and Cyrus Strong, that the plaintiff’s complaint be dismissed, so far as the same demands a personal judgment against them.”
    Also from so much of an interlocutory judgment entered in the clerk’s office of the county of Broome on the 23d day of July, 1892, as adjudges:
    
      “ That the plaintiff is not entitled to á judgment against the defendants, Erasmus D. Robinson, Tracy R. Morgan, Job Y. Cpngdon, Benjamin De Yoe, E. B. Stephens, Alonzo 0. Matthews, Harris Gr. Rodgers, Robert Brown and Cyrus Strong for having misappropriated the. funds so received by them, unless upon ian accounting it shall' appear that they have misappropriated said funds.”
    Also from so much of said interlocutory judgment as holds or implies that, in order for plaintiff to recover a judgment in .this action against said individual defendants, it would be necessary for it to appear upon an accounting that, they had misappropriated the funds received by them.
    Also from that portion of said interlocutory judgment which adjudges as follows:
    “ That, should it appear on said accounting ” -{i. e., the accounting ordered by the said interlocutory judgment) “ that any of the moneys; received by the defendant corporation, and which should have been paid on said bonds, have been misappropriated by defendants, then that said’ plaintiff may have a personal judgment against said defendants, Tracy R. Moigan, Job' N. Congdon, Benjamin DeVoe,, Edward B. Stephens, AlonzoO. Matthews, Harris G. Rodgers, Robert Brown and Cyrus Strong, for the same with execution, so that plaintiff, shall suffer no loss.”
    Also from that portion of the order herein entered in Broome county clerk’s office on June 30, 1891, that settles the form of the said interlocutory judgment by prescribing that said judgment shall contain the provisions and .terms that are herein appealed from by plaintiff, as set forth, in this notice. ’
    Also from so much of an order made at the Broome Special Term and entered in the office of the clerk of the county of Broome on the 4th day of July,’ 1893, which holds and orders-as -follow':
    
      First. From that, portion which denies “in all things” “ the motion of the plaintiff to strike out or expunge from said report certain parts of the referee’s report mentioned in- the plaintiffs notice of motion.”
    
      ■Second. From that portion which denies “ the motion of -the plaintiff to disregard, in rendering final judgment in'this action, all the matters and things in said report of Referee Knox which were asked on ” the motion for final judgment “ to be expunged or stricken out.”
    • Third. From that portion which denies “ the application of motion of the-plaintiff, in this action that the defendant Tracy R. Morgan individually be made liable for the amount due the plaintiff in this action, and for all costs and disbursements, including the costs of the reference under the interlocutory judgment.”
    
      Fourth. From that portion which denies “ the application of the-plaintiff for costs against all of the individual defendants in this-action.”
    
      Fifth. From that portion which denies “ the application of the plaintiff for a final judgment that the individual defendants have" misappropriated the funds in question.”
    
      Sixth. From that portion which denies “ in all things ” “ the motion of the plaintiff to strike out portions of the referee’s report.”
    
      Seventh. From that portion which denies “ the motion of the-plaintiff for interest upon the sum of $2,504.64, that being the amount of interest which had accrued upon the principal sum due at the date of the beginning of this action.”
    
      Eighth. From that portion which denies “ the motion of the-plaintiff for judgment against the individual defendants, and for costs against them.”
    
      Ni/nth. From that portion which grants “ the motion of said individual defendants for judgment against the plaintiff dismissing the plaintiff’s complaint as to the individual defendants so far as-the same demands a personal judgment against them.”
    A motion was made by the defendants, The Spring Forest Cemetery Association and others, to dismiss the appeal.
    
      Edward K. Clark and Roger P. Clark, for the appellant.
    
      A. D. Wales, Lyon, Painter & Hinman and Israel T. Deyo, for the respondents.
   Merwin, J.:

The motion to dismiss the appeal will be first considered. The-grounds of the motion are (1) that the appeal was improperly taken,, and (2) that the plaintiff has waived her right to take or prosecute it..

The action was brought to enforce the collection of certain bonds-issued by the defendant corporation in 1855 and 1866. The defendants answered alleging, among other things, that the bonds were not. valid. The issues were by stipulation referred to a referee to hear,, try and determine: The referee decided that the bonds were valid, and that the plaintiff was entitled to an accounting of the receipts-from the proceeds of sales of lots in the cemetery of the corporation from July 1, 1878,. to the time, of the commencement of the action on July 1, 1889. The form of.the interlocutory judgment to .be entered upon said report was, upon- the motion of the plaintiff’s attorney, settled by an order of the Broome Special Term made the 30th of June, 1891j andón the same day the interlocutory j-udg'ment so settled was entered on the motion of the plaintiff’s attorney. Thereafter the defendants appealed to the General Term from the order of June 30, 1891, and also from the judgment of that date, and also made a motion at the General Term for a new trial, under section 1001 of the Code of Civil Procedure. This motion was •denied, and the- order and interlocutory judgment-were modified, and, as'.modified, affirmed,, with costs, of the appeal against- all the defendants. (Seymour v. Spring Forest Cemetery Association, 45 N. Y. St. Repr. 520.) On the 23d of July, 1892, on motion of the plaintiff’s.attorney, judgment was entered on the decision of the General Term and in accordance therewith, the costs of the appeal being taxed at $169.45. ..The' reference and accounting under the interlocutory-judgment were, then had, and the referee made bis report on December 21, 1892. The plaintiff then- made a motion at Special Term Tor modification of the. report and for final judgment. The defendants. made a cross-motion, asking, among other things,, for a dismissal- of the plaintiff’s complaint as to the individual defendants. Upon these motions an order was granted for final judgment dismissing' the complaint as to the" individual defendants, so far as it demanded a personal judgment against them,- and! awarding judgment in favor of the plaintiff- against the- defendant ■corporation for $14,631.69 damages and $230 costs. Judgment was accordingly entered and docketed on July 4, 1893. On July .20, 189.3, the defendants appealed, under the provisions of section 1336 •of the Code, directly from: the final judgment to the Court of ■Appeals. There (144 N. Y. 333) the- judgment and determination of The General Term were affirmed, with costs, and judgment upon -the remittitur-was, on the 21st of January, 1895, accordingly entered .in the Supreme Court, the Costs against the defendants beingtaxed at $146.48.

■■ The present appeal was taken by the plaintiff on the 28th of January, 1895. By the notice an intention is- declared to bring up for review certain provisions of the interlocutory judgment of July 23, 1892, and also certain provisions of the interlocutory judgment of June 30,1891. The interlocutory judgment first named was the' one entered on the decision of the General Term upon defendants’ appeal, and took the place of the last named, which was entered dti the order of the Special Term upon the report of the referee. The claim of the defendants on this motion is that the judgment of July' 23, 1892, cannot.be here reviewed, because it is in substance the judgment of the General Term, and that a review here of the judgment of June 30, 1891, is not permitted by section 1316 of the Code, which provides only for review of an interlocutory judgment “which-has not already been reviewed, upon a separate appeal therefrom, by the court- or the term of the court, to which the appeal from the final judgment’is taken.”

If this claim is tenable, it does not follow that the appeal of the plaintiff should be dismissed. For there are other questions that may be raised on the proceedings to take the final judgment. (Code, § 1350.) The appeal being effective for some purposes, should not upon motion be dismissed. Whether some particular question can be considered can, if necessary, be more properly determined when' we come to the consideration generally of the appeal. • ' ": 1

The second ground for the dismissal of the appeal is based on the fact that, on the 28th of July, 1895, the plaintiff received of the defendant corporation the sum of $6,414.47 in full satisfaction of' the bond given by such defendant on the appeal to the Court-of-Appeals, and also on the fact that the plaintiff was paid the judgment for costs awarded against the defendants by the General Term, amounting to $169.45, and acknowledged satisfaction thereof on the 17th of April, 1895. The bond above referred to was an undertaking that the appellants on that áppeal should pay all costs and damages which might be awarded against them on the appeal, and' that, if the judgment - appealed from was affirmed, the appellants would pay the sum recovered or directed to be paid by the judgment or the part thereof as to which it was affirmed, except that the liability of the sureties should not exceed $6,414.47. In the receipt given by the plaintiff for the money it is stated that the money shall be applied first to the payment of the costs in the judgment of affirmance, amounting to $146.48, and the balance toward the payment of the damages awarded against the association in the judgment of July 4, 1893, being part of the moneys directed to be ' paid by the judgment."

"The only error claimed by the plaintiff as to the judgment against the defendant corporation is that the judgment is not large •enough by a certain item of interest amounting to $602.37.. Her receipt of a part of the judgment was consistent with this claim and should not be held to be a waiver of her right to raise the question which she seeks to raise on the appeal. (Knapp v. Brown, 45 N. Y. 207, 210; Clowes v. Dickenson, 8 Cow. 328.) .Nor does her receipt of the costs awarded to her on the appeal to the General Term affect her right to the appeal from the final judgment. That award of costs was absolute. (Farmers' L. & T. Co. v. Bankers', etc., Tel. Co., 109 N. Y. 342.)

-The motion to dismiss should be denied.

We come now to the questions raised on the appeal. The plaintiff claims (1) that the judgment against the defendant corporation of $14,613.69 is too small by an item of interest amounting to the sum of $602.37, and (2) that she was entitled to have judgment against the other defendants personally for the amqunt found due her and the costs.

1. The referee, upon, the accounting provided for in the interlocutory judgment, found that the total amount of the receipts of the defendant corporation from the sale of lots and the sale of timber from July 1,1878, to July 1,1889, was the sum of $21,449.14; that the amount due on the bonds on the 1st day of July, 1889, .arising out of such receipts was the sum of $15,320.81; that, there was paid on said bonds from said receipts between the 1st •day of July, 1878, and the 1st- day of July, 1889, the sum of $5,559,30, leaving a balance of $9,761.51, and adding interest upon all deferred payments semi-annually as in case of partial payments, which interest amounted to the sum of $2,504.64, there remained •due and unpaid from the defendant corporation to the plaintiff upon the bonds on the 1st of July, 1889, the sum of $12,266.15. The amount of the judgment is arrived at by adding to this sum the interest on the principal sum of $9,761.51 from' July 1, 1889, to the date of the judgment. The plaintiff claims, that the interest on the entire sum of $12,266.15 from July 1, 1889, the date, of. the commencement of the action to the date of the judgment, should have been added. The interest on $2,504.64 from July 1, 1889, to the date of the judgment is $602.37. This is compound interest, but the plaintiff says that for the purpose of the computation of interest a rest should be made at the date of the bringing the suit. The cases of Howard v. Farley (19 Abb. Pr. 126) and Conn. Mut. Life Ins. Co. v. C., C. & C. R. R. Co. (41 Barb. 9) are cited to sustain this view. In the Howard case it was held that when by the condition of a bond the interest is payable at specified times before the principal sum becomes due, such interest, on a demand of it after it has accrued, becomes principal, and will bear interest from the time of such demand, or, if a demand is not proved, from the commencement of the suit. In the Conn. Ins. case, interest was allowed on interest coupons attached to a railroad company bond from the time they became due. This latter case was in effect overruled in The Williamsburgh Sav. Bank v. Town of Solon (136 N. Y. 465) and Beattys v. Same Defendant (Id. 662).

The action here is not an action to recover on a specific promise to pay interest at a certain date, but is an action to recover the amount of certain payments which it is alleged the corporation ought to have made but did not, and the plaintiff is allowed interest on the unpaid payments treated as principal sums. We are referred to no authority for making in such a case a rest at the date of the commencement of the suit, and in that way allow compound interest. The item claimed by the plaintiff is not, we think, allowable.

2. The more difficult question to determine is whether the defendants, other than the corporation, are liable in this action for any portion of the claim of the plaintiff.

On and prior to June 1, 1853, eleven persons were the owners of about thirty-three acres of land in the then village of Binghamton, which they had laid out as and for a cemetery ■ and filed a map thereof in the clerk’s office of the county. They had expended large sums in the improvement thereof and in preparing it for burial purposes, and it was known as “The Spring Forest Cemetery.” On the 6th of December, 1853, at a meeting of the-proprietors, at which nine of them were present, it was resolved that a corporation be formed with nine trustees, and that the corporation purchase of the owners the land referred to, giving therefor bonds of the corporation amounting in the aggregate to $30,000, “ conditioned and covenanting on the part of this corporation that they, for two years from this date, apply one-half of their entire receipts in payment of said bonds, and after the expiration' of. said two years that, they will apply seventy-five per cent of all their receipts upon said bonds; that said -receipts shall- be divided and applied upon such bonds semi-annually.”

On the 8th of December, 1853, in pursuance, of this resolution, a certificate of the incorporation of the defendant* the Spring-Forest Cemetery Association, was duly filed under the act entitled “ An- act authorizing the 'incorporation, of rural cemetery associations,” being. chapter 1-33 of the Laws of 1847, and-'the laws amendatory thereof. The nine trustees named in tlie certificate were nine of the proprietors. In -June or July, 1854, the land-referred to was conveyed to the corporation by the owners: In 1855, at- divers dates* twenty-two bonds, amounting in the aggregate to $15,000, were issued by the corporation. ' Each bond referred to the purchase by the association- of the said property “ at the price of thirty thousand dollars, which sum they are to pay, and. the interest thereon, by applying towards-the" payment of the said sum and interest, for the first two years succeeding the date hereof, one-half of the proceeds of the sales of lots in the aforesaid cemetery, and of the receipts of - the said association, and after said two years seventyfiye per-cent of the .proceeds of the sales of said lots, and of the receipts of said ■ association,' the said proceeds-and receipts to be applied in semi-annual dividends, and residue of the said proceeds and receipts, to be applied in each year to the. improvement of said cemetery, and the necessary expenses thereof;” and each bond stated that it. was given to secure the payment of a portion of the purchase money and the application of the proceeds and receipts as therein specified, and was conditioned for the payment of the sum therein named and interest by paying and applying upon this bond such portion of .the aforesaid- proceeds and receipts above particularly described, in' semi-annual dividends, as the obligee herein will be entitled to receive upon a pro rata division of said proceeds and receipts, among all the holders of. the bonds given by said association, to secure the payment of the said thirty thousand dollars, and ■shall also apply the residue of said ' proceeds and receipts in each year to the improvement of the said cemetery, and the necessary expenses thereof.”

In 1866 the corporation issued six other bonds, amounting in the aggregate to $3,000. In these it was recited that the association had purchased the said property at the price of $30,000, “ which sum they are to pay, and the interest thereon from March 28,1855,. by applying towards the payment of said sum and interest, one-half' of the proceeds of the sales made after March 28, 1855, of lots in the aforesaid cemetery, and of the receipts of the said association after March 28,1855, the said proceeds and receipts to be applied in semi-annual dividends, and residue of the said proceeds and receipts-to be applied in each year to the improvement of said cemetery, and the necessary expenses thereof,” and the condition of these bonds was for the payment to the obligee of his proportionate amount of one'-half of the said proceeds and receipts, and for the application of the residue of the proceeds and receipts to the improvement of the grounds of the cemetery and the necessary expenses thereof. No-other bonds were issued.

The twenty-eight bonds above described are the basis of this action, and they are set out in the complaint. It is alleged that the plaintiff is the owner and holder-of the same •; that since July 1, 1878, no account has been rendered to the holders of the bonds of the income and receipts of the association, or of the amount applicable to the payment of the bonds; that demand has been made of the association and of its officers for an. account of the receipts, and' such demand has been refused; that the 'defendants, other than the corporation, claim to be and are acting as trustees of the association, and have the custody of all the money and property of the said association; that a large amount of money, but what amount the plaintiff is unable to state, further than that it is between $5,00.0 and $25,000, at the time the complaint is made, has been received by the defendants which is applicable, and should be applied on the bonds; that the defendants neglect and refuse to make any account whatever, refuse to recognize the validity of the bonds and refuse to make any payment, though such account and payment have often been demanded. Judgment is demanded for an accounting by defendants of all the receipts of the association since July 1, 1878,. and that plaintiff be paid the net amount applicable on the bonds, with interest on the sums withheld, from the time the payments withheld should have been applied, and that the individual defendants be held personally liable for the payments so withheld and be adjudged to pay the same. ■ -•

In the answers of the. defendants it is admitted that the association was incorporated substantially as alleged; that no bonds were issued other than the alleged bonds mentioned in the complaint; that the individual defendants claimed to be and are acting as trustees of the association, and that as such trustees they have the custody of the funds and property of the association, and that they refuse to recognize the validity of the alleged bonds and to make payments thereon; that paper writings, similar in form and purport to those alleged in the complaint, were executed by certain parties, but their validity is denied. All the other allegations of the complaint are denied. Defenses áre set up going to the validity of the bonds and the existence of any debt for the purchase money of the property.

Upon the trial of the issues before the referee it appeared -that Giles "W. Hotchkiss and Lewis Seymour, who were two of1 the original owners, and the former a trustee of the association and the latter its secretary, managed and controlled the business and financial affairs of the association from its incorporation down to the death of Seymour in 'January, 1873, and that thereafter Hotchkiss continued such management and control down to the time of his death on-July 5, 1878; that, before the death of Seymour, he and Hotchkiss became the owners jointly of all the said bonds, and, after the death of- Seymour, Hotchkiss continued to own and control the same to the time of. his death, and after that they were transferred to the plaintiff; that from the incoi’poration of the association down to the death of Hotchkiss the receipts from the sale of lots amounted to about $44,000, and that -Hotchkiss and Seymour received as applicable to the payment of the bonds, principal and interest, about the sum of $20,000.

It was found by the referee that from July 1, 1878, to July 1, - 1889, the aggregate amount received by the corporation for the sale of lots was the sum of $21,670.89, and for the sale-of timber in 1880 $230, and that the proof failed to show how much of the entire sum of- the $21,000 of bonds, principal and interest, remains unpaid, but that such balance amounts to several thousand dollars.

The referee decided that the bonds were validthat the plaintiff was entitled as to the bonds issued in 1855 to have a proportionate amount of seventy-five per cent of the proceeds' of sales of lots applied thereon, and as to the bonds issued in 1866 an application of the proceeds on the basis of fifty per cent being applicable to the payment of the bonds; and that the plaintiff was entitled to an accounting by- the defendant of the proceeds since July" 1, 1878, to the commencement of the action on that basis, and an'accounting for the purpose of ascertaining and stating the exact amount that remains unpaid on the bonds. Judgment was. ordered by the referee in favor of the plaintiff in accordance with the findings, with- costs.

The question of the liability of the individual defendants does not seem to have been considered by the referee, except as it may be involved in one of the findings of. law that u the plaintiff is not entitled to a judgment against the defendants. Erasmus D. Robinson, Tracy R. Morgan, Job 1ST. Oongdon, Benjamin Devoe, E. B. .•'Stephens, Alonzo 0. Matthews, Harris Rodgers, Robert Brown and .¡Cyrus Strong, for having ■ misappropriated the funds so received by • -them, unless upon- an accounting it shall appear that they have misappropriated said funds.” The same finding, with others substantially in the form made by the referee, appears in the interlocutory judgment entered July 23, 1892, and by such judgment a referee was appointed “ to take and state the accounts as herein provided^”

' The question of personal liability was not considered by the General Term. In the opinion delivered it is said: “ The extent of the liability, if any, of the defendants other than the corporation, is in effect undetermined by the referee. When the hearing.shall be had upon the accounting the facts in regard thereto will be developed and a conclusion be reached more intelligible than can be declared upon the present state of the evidence. We forbear to express any opinion upon that subject at this stage of the case.” (45 N. Y. St. Repr. 520, 526.)

In the intérloeutory judgment, as" settled by the Special Term, and entered June 30, 1891, there was a provision that; the plaintiff recover costs generally against all the defendants. This was modified by the General Term by allowing costs against the defendant corporation only, and reserving all questions as to costs against the other defendants until the further direction of the court.

.The referee, upon the accounting, found that the amount unpaid on.the bonds on the 1st of July,. 1889, was $42,272.70 ; that the total amount of the receipts of the corporation, from the sale of lots and timber from July .1,1878, .to July 1,1889, w.as $21,449.14, of which ,$15,320.81 should have been paid on the bonds, according to the principles., laid down in the interlocutory .judgment. It was also found tliat the amount paid out during the same period upon expense -account was $8,800.70.- This- did not exceed fifty'percent of the proceeds, but did exceed, by the sum of $3,347.21, the balance, of the proceeds after applying at the rate of seventy-five per cent on the bonds of 1855 and at the rate of fifty per cent on the bonds of 1866. The claim of the plaintiff is, that the individual defendants are personally liableto the plaintiff for this sum of $3,347.21. - '. - .

The main item of the expense account was the salary of the superintendent of the cemetery, which for about seven years was .at the rate .of $600 a year, and for three years at the.' rate of $800 a year! The superintendent was Mr. Robinson, one of the.original defendants, and for many y§ars the president of the board. A -superintendent Was necessary, and' the salary paid Was fair and reasonable for. the services rendered. It is found that .the moneys so'paid, out on expense account were paid with the approval of all the trustees who were members of the board at the time such pay> ments were made, except the defendant Strong, who took no part in-the .proceedings of the trastees, and that no separate account Was kept by the trustees showing the amount received applicable to the payment of - bonds, and the. amount applicable to the payment of the cemetery .expenses, án.d payments were made out of-the general fund without reference to the source from whence it came.

"When this action was commenced in . July, 1889, there were nine trustées, and they were all made defendants, Since then three have died, Robinson, Stephens and Rodgers: The personal representatives of Rodgers have been substituted in his place. As to the other two, the action • has been continued without them. The defendant Morgan was one of the original proprietors and trustees, though hé was not present at the meeting when the formation of the corpora* tion was agreed upon. The defendants Oongdon and Devoe have been trustees since July, 1878, the defendant Matthews from July, 1879, and Brown and Rodgers from 1883 or 1884.

The referee finds that “each of the defendants acted in good faith and in the exercise of his honest judgment, and the individual defendants have not collectively or separately misappropriated any of the funds belonging to the corporation -defendant, and are not' personally liable for acts performed by them as trustees of such corporation,” and that the plaintiff is not entitled to judgment against any of them. He also found that under' the complaint plaintiff cannot recover against the personal defendants for money of cerne* tery lost by negligence, or money mistakenly, expended' for the. cemetery.”' .

It may be that the referee in some of his. findings went beyond the scope of the reference, still,' as the Special Term in ordering judgment adopted the conclusion of the referee that the defendants were not individually liable, and as to them dismissed the complaint, it must be assumed that-upon the facts the view most favorable to the defendants was taken. " '

It is claimed upon the' part -of- the plaintiff that the individual defendants -are liable to plaintiff as for money had and received.Assuming that the allegations of the complaint are sufficient tó. allow the plaintiff to take this position, and assuming that by the clause in the interlocutory judgment, as to misappropriation herein* before quoted, there is no limitation upon the ground of any recovery by jfiainti'ff, or, if a-limitation, that the plaintiff is not bound by it, are the facts such that an action for money had and received will lie ? It is argued that the individual defendants in their answer admit that they have the -custody and control of the money that the plaintiff seeks. The answers cannot properly be construed in that way. They only admit that the individual' defendants are .-trustees of the association, and as such trustees have-the custody of the funds and property of the association.' Such possession is simply the posses* sion of the corporation. The defendants as individuals,, .except the defendant Robinson, have received none of the money. There, was ■no contract between them and the plaintiff. ■ The title'of. the money was -in the corporation'. “-The directors or -trustees of-' a. .corporation .are mere agents'; they have not the legal title to the corporate property.” (Morawetz on Corp. § 523; Angell & Ames on Corp. § 595; French v. Fuller, 23 Pick. 108.) What right the plaintiff may have had against Robinson, one of the original defendants who received for his services ¡a portion of the fund, it is. not necessary here to inquired as Robinson is not now in the case. The defendant. Matthews was the treasurer of the corporation, and as such received its moneys and- paid them out on the order of the board of directors. None of the present defendants received to their own use any of the moneys in question. The judgment obtained by the plaintiff against the corporation included those with other moneys. The plaintiff relies on the case of Ross v. Curtis (30 Barb. 240; affd., 31 N. Y. 606). In that case the defendant was supervisor of a town and had received from the county treasurer a specific sum for the express purpose of applying' the same upon- certain bonds against the town, some of which were held by the plaintiff. The money had been raised in pursuance of a statute .that directed its payment to .the supervisor to he by him applied in payment on the bonds on' or before a certain date. It was held that the defendant could not question the validity of the bonds, and that an action for money had and received would lie. A number of cases are also cited where it has been held that a town could maintain an action as for money had and received, against the county, for moneys raised by taxes on railroad corporations and applied by the.county to its general purposes, but which should, under the statute, have been paid over to the town for application on bonds issued, by it for the benefit" of the' railroad corporation. In Mills v. Mills (115 N. Y. 85) the suit was for a surplus in the hands of a mortgagee after the payment of the mortgage.

■ Those cases do not seem to sustain the contention of the plaintiff. A cause of action against these individual defendants as for money had and received is not, we think, made out.

It is further argued by the plaintiff that the individual defendants are liable in this action as for a misappropriation to the extent of $3,347.21.

It is to he observed that in che complaint there is no charge of inisappropriation, or fraud, or 'negligence, or of any tortious act-. And within the rule that the recovery must be according to the_ allegations of the complaint, it is quite doubtful whether the plaintiff is in a position to raise the question of misappropriation. It is not apparent that by any provision in the report of the referee upon the issues or in the interlocutory judgment there was any design to-enlarge the scope of the complaint. Assuming, however, that the question may be considered, can it be said as matter of law, upon the evidence and such findings thereon as the referee on the accounting may have properly made, or the Special Term presumed in support of its judgment to have made, that the plaintiff was entitled to a judgment against these defendants as for a misappropriation %

The rights of the plaintiff against the corporation are not founded upon any statute, but upon a contract. So that it is not a question whether the moneys were paid illegally or ultra vires, but whether the contract was properly performed. It was finally field that the corporation had violated its contract, and the question now is whether its agents, the trustees, are personally liable as -well as the corporation for the deficiency.

The evidence tends to show, and we must, I think, assume, that these defendants acted in good faith and in the exercise of their honest judgment, and that the moneys, the expenditure of which was authorized by them as trustees and is here complained of, were expended for the benefit of the corporation for its necessary running expenses. The expenditure, therefore, was iu the line of their duty to the corporation.

They were advised that the bonds were invalid or had been extinguished. The circumstances under which the corporation had been managed and controlled from 1855 to 1878 by Seymour and Hotchkiss, who during that .time became the owners and holders of the-bonds, would naturally lead them to question their continued validity. By section 7 of the act under which the corporation was organized (Chap. 138, Laws of 1847, as amended by chapter 122, Laws of 1853, passed and taking effect April 5, 1853) the application of the proceeds of sales of lots to the payment of the purchase money of cemetery lands was limited to the one-lialf thereof and the other one-half was directed to be appropriated to improvements and incidental expenses. In 1860, by chapter 163 of the laws of that year, the act was further amended by authorizing the trustees to issue certificates of outstanding indebtedness for purchase money and for improvements, and. it provided for the keeping of a distinct and separate-account of such certificates in the cemetery books, and applying at least twice in each: year the proceeds of sales of lots in the manner provided by the seventh section of the act hereby amended.”' This left the limitation in force as it was' made by the amendment of 1853. In 1874,. by chapter 245, section 7 was amended and the limitation referred to was left out. . It was, however, restored by chapter 108 of the Laws of 1879. The amendment of the act of 1860 by chapter 433 of the Laws of 1884 did not relate to the-manner of the application -of the -proceeds. So that when these defendants or a psort-ion of them in 1879 entered up>on the management of the property they found in the statute this limitation apparently applicable -which allowed -only fifty pier cent to be apqfiied on the bonds. They found also that in the bonds of -1866 it was- stated that the original agreement -of punchase was . that one-half of the proceeds should be applied on the price of $30,0.00 and the balance devoted to improvements and expenses.

- True, the defendants were'notified of the--claim-of plaintiff.. It was made by her in-or-prior-to-1880,. and. in substance it was yielded to and payments made to January, 1883. Payments were then stopped until the questions at issue should ■ be legally -determined, but no action Avas taken by plaintiff to assért her rights -until July.,' 1889. ' In- the meantime the defendants, or such of them, as were acting, authorized the expenditure of' only so much of the proceeds as was. necessary to-pay the necessary running expenses,- and .the character and. amount of their expenditures were known to" the plaintiff or those who represented her. The balance of the puoceeds Avas preserved and the plaintiff has in effect had -the benefit of that.

As a rule, directors or trustees of a corporation, if they act in good faith within the limit of the powers conferred b.y the charter, using reasonable care and diligence, are not responsible for mere mistakes or errors of judgment (Hun v. Cary, 82 N. Y. 65, 70; 3 Thomp. on Corps. § 4103), and it is said that they are not responsible for an excusable mistake of law, even though it relate to the extent' of their poAver under the charter. (1 Morawetz on Corp, § 557; Thompson, supra, § 4109; 2 Cook on Stock, etc., § 682.) In Vance v. Phoenix Ins. Co. (4 Lea [Tenn.], 385) it Avas held that directors, who act in good faith and Avith reasonable cam and diligence, but nevertheless fall into a mistake either of law of fact, are not personally liable for the consequences of such mistake.

The view which these defendants took of the extent of the-obligation of the corporation to the plaintiff turned out to be a mistaken one. It was said by the Court of Appeals, as one of the reasons for its judgment, that the bonds of 1855 represented purchase money and also improvements, and that, therefore, the agreement to apply seventy-five per cent was legal.

The corporation by its corporate action through its board of trustees applied to its own use a portion of the proceeds that it had agreed to pay upon the bonds. The fact that these defendants, some or all of them, formed' a part of the board when such corporate action was taken, if they acted in good faith under an honest1 mistake as to the character, extent or1 existence "of the contract, should not be held to be personally liable in addition to the liability of the corporation.

■ It is further argued by the plaintiff that she has a remedy under the provision of the act of 1860, which provided that- the trustees-should keep a separate account- of-certificates for purchase money and those for improvements and apply at least twice a year the proceeds of sales of lots in the manner provided in section 7- of the, act of 1847, as amended in 1853.

To this proposition it maybe said that no such remedy is counted upon in the complaint. This is hot an action for damages fbr neglect of duty. Resides, the bonds of 1855, if they may be termed certificates, provided on their face for the payment on the purchase money of a greater proportion of the proceeds than the law allowed-This defect was finally deemed to be cured as against the-corporation by proof that in fact the term purchase money, as stated in these bonds, included improvements made by the; original proprietors. Until an adjudication to this effect, and especially in view of the statement of the purchase as contained in the bonds of 1866, it might be said with considerable force .that the trustees had the right to act on the theory that, as stated in the bonds-of 1855, the $30,000 was in fact purchase money and so a greater proportion of the proceeds than the law allowed was sought to be applied. - ■ . .

The .act of 1860 did not authorize the application of more than, fifty per cent on purchase-money certificates, and if the • trustees had the right to assume that the bonds of 1855 at most had no greater effect than purchase-money certificates, it is not clear that the plaintiff has any. good ground for complaint. By section 7, above referred to, it: was left to the discretion of the trustees to determine what proportion of the fifty per cent applicable to improvements and expenses should .be applied on improvements and what proportion to expenses.

We have thus considered the main features of this case, and we find no good reason for disturbing the decision of the Special Term, that the. present individual defendants are not in this action personally liable. . -

The judgment should be affirmed.

All concurréd.

Motion to dismiss appeal- denied, with ten dollars costs. " Judgment and order affirmed, with costs. . ' •  