The demand for which the judgment was recovered, accrued for services performed, and expenses incurred, by the plaintiffs and Nicholas Muller, as commissioners of estimate and assessment, in opening and widening One Hundred and Tenth street, in the city of New York. The demand made greatly exceeded what, by the act of 1862, could be properly allowed for such services and expenses.* But the complaint avers, and the answer substantially and *373practically admits, that, before the commissioners’ report was presented for confirmation, a bill of the costs, charges and expenses of said proceeding, was duly presented by the counsel for the corporation for taxation, in the manner required by law, and the same were taxed and allowed by a referee duly appointed by the Supreme Court, at the sum of $8,916.71 costs. And the bill so taxed was afterward reported, with the commissioners’ proceedings, to the court, and by it confirmed. The defense which the answer interposed to the recovery of such costs and expenses, was, that they were allowed at an amount exceeding that warranted by the provisions of the statute. But as the bill was adjusted in the mode provided by the statute, and at the instance of the counsel for the corporation, and afterward confirmed by the court, this objection comes too late. The remedy of the defendant for the correction of the bill, was by a direct proceeding for a readjustment of the amount allowed. It was adjusted by a judicial proceeding, instituted, carried on, and consummated in the manner provided by the statute. That necessarily rendered the adjustment conclusive against the defendant, as long as the proceedings taken 'were not vacated or set aside, but remained in force. They could not be questioned or annulled in the collateral mode proposed by the answer.
The court had complete jurisdiction over them, and of the parties affected by them, and that was sufficient to bind the defendant by the adjudication which was made. In this action, afterward brought to recover the amount awarded, no power exists to correct the errors by which that may have been improperly and unlawfully enhanced. That was held to be the law in the case of Supervisors of Onondaga v. Briggs.* The answer further alleged a counter-claim, existing in the defendant’s favor against George H. Purser, who, it was stated, was entitled to receive, or had been paid, the sum of $1,538.12 of the amount adjusted and allowed in favor of the commissioners. These facts are insufficient to create a counter-claim within the provisions made by the Code. They require that the claim shall be one existing in favor of a defendant against a plaintiff, between whom a several judgment may be had, arising out of the contract or transaction set forth in the complaint, as the foundation of the plaintiff’s demand, or connected with the subject of the action, or a cause of *374action arising on contract.* The claim made by the" answer was not- one existing against the plaintiffs or either of them; and, for that reason, not within either provision made by that section of the ’Code, prescribing the nature of the demands which may be set forth by way of counter-claim. For substantially the same reason, it was not proper by way of set-off, under the statutory provisions made upon that subject. The only one under which it might possibly have been brought, is that relating to actions by trustees or persons having no real interest in the contract or debt constituting the subject of the action, † And the facts alleged were not sufficient to bring the claim within that provision, because it was not stated that the plaintiffs were endeavoring to collect it for Purser. If that were the fact, it should have been so stated with reasonable certainty. That was not done, for all that was set forth in the answer, in that respect, was, that the amount mentioned was for money paid, or claimed to be due Purser for services as clerk. If the latter had been the fact, it should have been averred, for if the plaintiffs have paid Purser, as they may have done according to this answer, then the amount due from him to the defendant would not be a proper set-off. The answer also shows that the amount received by Purser, was taxed and allowed at the sum-paid him by the defendant, by a justice of the Supreme Court, and was included in the report of the proceedings in which it was claimed to have arisen, and confirmed by that court. According to this statement, the defendant had no valid or legal demand which could be insisted upon 'as a counterclaim or set-off; for it could not question or assail the proceedings by which that claim was allowed and paid in the collateral mode proposed by the answer. That could only be done by a direct application for a rehearing as to Purser’s claim, as-long as its allowance was not claimed to have been produced by fraud. So long as the proceedings mentioned remain in force, the defendant can maintain no claim for the recovery of the money paid pursuant to them. The judgment should be affirmed, with costs.
Davis, P. J., and Beady, J., concurred.
Judgment affirmed with costs.
Laws of 1862, chap. 483, §§ 1, 5.
3 Hill, 185; 8. O., 8 Denio, 36.
Code, § 150.
3 R S. (5th ed.), 635, sub. 10 of § 12.