author: Gilbert, J.:

text:
    HANNAH J. BELL, Respondent, v. GEORGE WARN, Executor, etc., Appellant.

      Legacy —gift over to second legatee — when valid.

    Although a first legatee is authorized to consume the legacy if necessary for his subsistence, yet the right to make use of it for that purpose is rather in the nature of a power than an ownership, and a gift over of what the first legatee shall leave is good.
    Where the gift to the first taker is absolute in its terms, or when the use only of the. property is given, and the property is such that its use is its consumption, the gift will be deemed an absolute one, and a gift over would be void for repugnancy.
    Appeal from a judgment in favor of the plaintiff entered on the decision of the court in an action brought to obtain an adjudication upon a will.
    The defendant’s testator died possessed.of real and personal estate, and leaving him surviving a widow and several children, among whom is a daughter, the plaintiff in this action, a feme sole, and also leaving a last will and testament, dated June 11, 1867, and a codicil thereto, dated June 1,1868.
    Said will and codicil were duly executed and published and duly proved before the surrogate of Cayuga county. The will contained the following bequest: “I hereby give and bequeath to my daughter Hannah J. Bell, $1,250.”
    In the codicil was contained the following provision: “ The sum of $1,250 bequeathed to my daughter Hannah J. Bell by my said will, I attach the following conditions and directions: The said sum of money shall be invested on good security, and the interest semi-annually paid to her from my decease during her life, and if the said Hannah by reason of sickness or want, shall require for her support any of the said principal sum, I direct my executors to pay to her such portion or portions of the same, from time to time, as she may require or need, even to the whole amount of said principal sum; if at her death any of the said principal sum remains, I bequeath the same to her children, share and share alike.”

      H. V. Howland, for the appellant.
    The simple question is this: Where a testator by his will makes an absolute gift of property to a legatee, and then by a subsequent codicil, or a residuary clause in the same will, qualifies and limits the gift, is the codicil or residuary clause void ? (Dorland v. Dorland, 2 Barb., 63; Wright v. Wright, 13 Eng. L. and Eq., 165, 166.) But the codicil in this case, necessarily revokes and qualifies the entire donation. It changes an absolute title to a mere contingent life estate for support, and gives the remainder to her children equally. It takes away the absolute gift, and therefore does not attempt to limit a remainder upon an absolute title. (Wright v. Wright, 13 Eng. L. and Eq., 165.) But if any doubt ever existed upon this question before, it must be regarded as now settled in this State, that a testator may make an absolute gift of his property to a legatee in one clause of his will, and by a subsequent residuary clause, qualify and limit the gift to a mere life estate, giving the fee or remainder to others. (Taggert et al. v. Murray et al., 53 N. Y., 233; Chrystie v. Phyfe, 19 id., 344; Floyd v. Fitcher, 38 Barb., 409.) But in the case at bar the gift itself is qualified and limited to a life estate only, and is not therefore an absolute title. (53 N. Y., 233.)

      Wood & Rathbun, for the respondent.
    While a testator may make a bequest to one person in language denoting an absolute gift, and yet limit that bequest over to another on the happening of some event. (3 Kern., 273; 47 N. Y., 512.) The language of the will is a gift in the first part of $1,250 to plaintiff, to do with as she please, and the provision in the codicil limiting the payment of it to her to such time or times as she is sick or in want, is a direction or restriction inconsistent with her doing with it as she pleases, and the fund not being limited over it is void. (3 Vesey, 324; 4 Sim., 141; approved 24 How., 51; 2 Barb., 534; 5 Sim., 232; 1 Jacob, 415.)
   Gilbert, J.:

The judgment below seems to have proceeded upon the idea that the codicil did not qualify the gift to the plaintiff contained in the will. To this we cannot assent. The will and the codicil constitute but one instrument. So read, the intention of the testator, we think, is clearly manifested. It appears to have been his wish to give to the plaintiff only the income of the fund, and the right to consume so much of the principal as she should need for her suitable maintenance, and to give to her children whatever might remain of the principal of the fund at her death. The codicil changed the gift from an absolute one to a qualified one of the nature stated. There is, therefore, no repugnancy between them. The limitation over is valid and effectual. The circumstance, that it may be defeated by the necessities of the plaintiff, does not affect it. It is expressly provided by statute, that an expectant estate in lands shall not be adjudged void because it may be defeated in that way. (1 R. S., 725, § 33.) And another statute expressly applies the same rule to bequests of personal property. (1 R. S., 773, § 2.) The intention of the testator must govern. (Upswell v. Hall, 1 P. Wms., 651; Smith v. Bell, 6 Pet., 68; Norris v. Beyea, 3 Kern., 273; Trustees v. Kellogg, 16 N. Y., 93; Chrystie v. Phyfe, 19 id., 351; Taggart v. Murray, 53 id., 233.) Such was the rule before the Revised Statutes. Although the daughter is authorized to consume the property bequeathed, and to that, extent may he said to have the disposal of it, yet, being evidently given for her subsistence, the right to make use of the property for that purpose is in the nature of a power rather than an ownership, and a gift over of what the first legatee shall leave is good. Where the gift to the first taker is absolute in its terms, or where the use only of the property is given, and the property is such that its use is its consumption, the gift will be deemed an absolute one, and a gift over would be void for repugnancy. In all these cases the test is the intention of the testator. That will determine the character of the gift. (Wash. Real Prop., bk. 2, chap. 7, § 5, subs. 10, 11.) In Norris v. Beyea (supra), Denio, J., states the principle applicable to cases of this kind. " There is,” he says, no repugnancy in a general bequest or devise to one person, in language which would ordinarily convey the whole estate, and a subsequent provision that upon a contingent event, the estate thus given should be diverted and go over. to another person. The latter clause in such cases limits and controls the former.” (P. 284; see, also, Terry v. Wiggins, 2 Lans., 272; S. C., 47 N. Y., 512.)

We have examined the cases cited by the respondent, but have not found anything in them in conflict with the views expressed.

The judgment must therefore be reversed, and a new trial granted, with costs to abide the event.

Ordered accordingly.


source: Caselaw Access Project

author: Smith, J.

license: Public Domain

text:
    JAMES H. MILLIMAN, Respondent, v. THE NEW YORK CENTRAL AND HUDSON RIVER RAILROAD COMPANY, Appellant.
    Negligence.
    This action was brought to recover for injuries sustained by the plaintiff in leaving the cars of the defendant. The plaintiff claimed that after the train had stopped and he had reached the door of the car and was about to leave the same, the train was backed by a sudden jerk and with great force, without warning to him, and that he was thereby thrown out and injured.
    Upon the trial the court charged that if, after the train had been stopped to enable passengers to alight, it was suddenly and without warning moved and the plaintiff thrown out and injured, the defendant was liable ; that it made no difference whether it was a motion backward or forward which occasioned the injury. Held, that the charge was correct.
    Appeal from an order denying a motion for a new trial.

      E. G. Lapham, for the appellant.

      J. H. Camp, for the respondent.
   Opinion by

Smith, J.

Present — Mullin, P. J., Smith and Morgan, JJ.

Order affirmed.


author: Mullin, P. J.

text:
    GEORGE W. LESLIE, Receiver, etc., Appellant, v. WILLIAM S. RUGG, Respondent.

      Agreement to pay individual debts of partner with partnership assets—when fraudulent as against creditor's.

    An agreement entered into between partners that a portion of the partnership assets shall be applied to the payment of the individual debts of one partner, the firm being at the time insolvent, is fraudulent as against creditors of the firm and may be repudiated by a receiver, thereof. (Menagh v. Whitwell, 52 N. Y., 146; Ransom v. Vandeventer, 41 Barb., 307; Wilson v. Robertson, 21 N. Y., 587.)
    Appeal from a judgment in favor of the defendant, entered upon the report of a referee.

      C. W. Avery, for the appellant.

      F. David, for the respondent.
   Opinion by

Mullin, P. J.

Judgment reversed and new trial ordered, costs to abide the event.


text:
    JAMES MORRISON and another, Appellants, v. ALEXANDER MORRISON and another, Respondents.

      Mortgage—waiver of conditions of, for' support and maintenance.

    Where a mortgage is given conditioned for the support and maintenance of the mortgagee, and for the payment to him 'of a certain sum, weekly, a refusal oh his part to receive such sum is a waiver of the condition, and the mortgagor is thereby discharged from performing the same. (Young v. Hunter, 6 N. Y., 204; Holmes v. Holmes, 9 id., 527; Carman v. Pultz, 21 id., 547.)
    In an action brought to foreclose a" mortgage conditioned for the support of the mortgagee, no relief can be granted for a neglect to support after the commencement of the action. (Ferguson v. Ferguson, 2 N. Y., 360.)
    Appeal from a judgment entered upon the report of a referee.

      John Van Voorhis, for the appellants.

      P. M. Crandall, for the respondents.
   Opinion by

Mullin, P. J.

Judgment reversed and new trial granted, costs to abide the event.


author: Morgan, J.

text:
    CHAUNCEY D. SMITH, Appellant, v. JOHN L. WILCOX, Respondent.

      Trover — Measure of damages.

    This action was in trover, the defendant being charged with wrongfully taking and detaining the plaintiff’s cow. The plaintiff claimed that the cow was dried up through the fault of the defendant while in his possession. Upon the trial a farmer, acquainted with the cow, was asked: “ How much less is she worth, being dried up, than she would be if giving milk ? ” Held, that the question was proper.
    Appeal from a judgment of the County Court of Onondaga , county, reversing a judgment of a Justice’s Court in favor of the plaintiff.

      S. N. Holmes, for the appellant.

      E. S. Butterfield, for the respondent.
   Opinion by

Morgan, J.

Present—Mullin, P. J., Smith and Morgan, JJ.

Judgment of County Court reversed, and that of Justice affirmed.


text:
    JOHN W. SHUMWAY and another, Executors, etc., of ISAAC SHUMWAY, Deceased, Respondents, v. HARVEY L. HARMON and others, Appellants.

      Will—when read estate regarded as personalty — when executor entitled to rents.

    Plaintiffs’ testator, by his will, directed that his son should work his farm on shares for one and a half years after his decease, at the expiration of which time his said farm and personal property should be sold by his executors, and the proceeds divided among his children. Held (1), that upon the expiration of the year and a half it was the duty of the executors to.sell the real and personal estate of the testator, and convert the same into money; (2), that as equity regarded that as done .which ought to have been done, the said real and personal estate must be regarded as converted into money, and to have become • personal estate in their hands at the expiration of that time, and that thereafter the rents and profits of the said farm became part of the trust fund to be distributed by the executors, and that they were entitled to recover the same. Moncrief v. Ross (50 N. Y., 431) followed.
    Appeal from a judgment in favor of the plaintiffs, entered upon the report of a referee.

      H. L. Comstock, for the appellants.

      E. G. Lapham, for the respondents.
   Opinion by

Smith, J.

Present — Mullin, P. J., Smith and Morgan, JJ.

Judgment affirmed.


author: Gilbert, J.

text:
    RANSOM P. ALGER, Respondent, v. WILLARD JOHNSON, Appellant.

      Statute of frauds—when must he pleaded.

    It is only when a complaint sets forth a contract, and the answer admits that allegation, that the defendant must plead the statute of frauds. (Moak’s Van S. PI., 505, 555 ; Duffy v. O'Donovan, 46 N. Y., 226.)
    Appeal from a judgment in favor of the plaintiff, entered on the report of a referee.
    The action -was brought for work done and materials furnished by the plaintiff to the defendant. The answer contained a general denial of all the material allegations of the complaint. The defendant claimed that the contract for the work and materials was with one Baker, and that therefore the promise of the defendant to pay therefor was within the statute of frauds, but the court was of opinion that the evidence showed that the employment was by the defendant and not by Baker, and affirmed the judgment.

      Stephens & Pardee, for the appellant.

      H. C. Howe, for the respondent
   Opinion by

Gilbert, J.

Judgment affirmed.


text:
    CORNELIA VAN ALLEN, Plaintiff, v. THE FARMERS’ JOINT STOCK INSURANCE COMPANY, Defendant.

      Insurance company—general agent—powers of—Patrol waiver of coriditions, when i policy in terms provides for written waive)'only.

    A general agent of an insurance company may waive the performance of a condition inserted in the policy for the benefit of the company. (Ames v. N. Y. Union Ins. Co., 4 Ker., 253; Liddle v. Market Ins. Co., 29 N. Y., 184; Benedict v. Ocean Ins. Co., 31 N. Y., 389; Boehen v. Williamsburgh Ins. Co., 35 id., 131; Bodine v. Exchange Ins. Co., 51 id., 117.)
    A parol waiver of a condition in a policy is good, notwithstanding a provision in the policy that nothing but a written agreement, signed by an officer of the company, shall have that effect. (Parker v. Arctic Ins. Co., 1 N. Y. S. C., 397; affirmed by Court of Appeals.)
    Motion to set aside verdict for plaintiff and for a new trial, upon exceptions ordered to be heard in the first instance at the General Term. The action was upon a policy of insurance against fire.

      M. Hopkins, for the plaintiff.

      D. Pratt, for the defendant.
   Opinion by

Gilbert, J.

Judgment affirmed.


text:
    ANDREW J. BELKNAP, Respondent, v. WENDELL M. BENDER, Appellant.

      Statute of frauds —promise to pay debt of another.

    A being indebted to B for sawing lumber at A’s mill, conveyed his property to 0, who hired B to continue the running of the mill, saying that he would -pay him the same that A had paid him, and saying further, that he had made arrangements with A to pay A’s debt to the plaintiff, and that he would pay him the back pay that was coming to him. Held, that the agreement to pay A’s debt was void under the statute of frauds. (Pfeiffer v. Adler, 37 N. Y., 164; Mallory v. Gillet, 21 id., 412.)
    This is an appeal from a judgment entered upon the verdict of a# jury, rendered at the Lewis Circuit in June, 1874.

      C. D. Adams, for the appellant.

      J. Thomas Spriggs, for the respondent.
   Opinion by

Morgan, J.

Present — Mullin, P. J., Smith and Morgan, JJ.

Judgment reversed and new trial granted, costs to abide event.


text:
    FANNY J. WHEELOCK, Appellant, v. GEORGE M. CUYLER, Respondent.

      Evidence—Code, section 399.
    Where in an action of trespass, quarre clausum fregit, defendant claims to have entered as the agent of the owners, the testimony of plaintiff’s grantors as to conversations between them and a person deceased at the time of the trial, through whom defendant’s principal claims, is inadmissible under section 399 of the Code.
    Appeal from a judgment in favor of the defendant, entered upon the report of a referee.

      Scott Lord, for the appellant.

      James Wood, for the respondent.
   Opinion by

Morgan, J.

Present —Mullin, P. J., Smith and Morgan, JJ.

J udgment' affirmed.


text:
    EVANDER S. VAN LIEW and another, Administrators, Appellants, v. STEPHEN V. R. JOHNSON and others, Impleaded, Respondents.

      Wra/udulent contract&emdash;remedy of parly defrauded.

    The remedy of a party defrauded is either to affirm the contract and sue for the damages occasioned by the fraud, or to disaffirm the contract and to sue for the recovery of whatever has been received under the contract by the other party.
    He can pursue the latter remedy only on condition that he has restored, or offered to restore, all that he has himself received under the contract.
    Appeal from an order sustaining a demurrer to the complaint in this action.

      McDonald & Rose, for the appellants.

      Thaddeus Bodine, for the respondents.
   Opinion by

Gilbert, J.

Order appealed from affirmed with costs, with leave to the plaintiff to amend in twenty days on payment of costs.


text:
    DANIEL AVERY, Administrator, etc., Appellant, v. MALACHI FOLEY, Respondent.
    Referee.
    Ho exception lies to the refusal of a referee to find the particulars which go to make up his general conclusions of fact.
    It is erroneous for a referee to find the evidence of facts instead of the facts themselves. (Beck v. Sheldon, 48 N. Y., 369.)

      Appeal from a judgment in favor of the defendant, entered upon the report of a referee. ^ •

      H. A. Maynard, for the appellant.

      James Lyon, for the respondent.
   Opinion by

Gilbert, J.

Judgment reversed and new trial granted before another referee, costs to abide event.


text:
    ELON G. CARPENTER, Appellant, v. THOMAS GREEN and JAMES GREEN, Respondents.

      Summa/tp proceedings—when appeal does not lief rom judgment in.

    Appeal was brought from a judgment of the County Court of Ontario county, reversing the judgment of a justice of the peace, rendered upon the verdict of a jury, in summary proceedings instituted by the plaintiff as landlord to remove the defendants as tenants.
    The court was of opinion that no appeal to this court in cases like this has been given. It. is a special proceeding, and the Code relates only to appeals in civil actions. The act of 1854, in relation to special proceedings (chap. 270), is confined to appeals from an order or final determination, made at a Special Term of the same court, and does not authorize an appeal from such order or determination of a County Court. That as the act of 1849, to amend the Revised Statutes in relation to summary proceedings to recover the possession of land, expressly provides that the decision of the county judge shall be final, the court had no alternative but to dismiss the appeal. (Laws 1849, chap. 193, § 5, sub. 2; Deuel v. Rust, 24 Barb., 438, 446.)

      Spencer Gooding, for the appellant.

      Henry Brush, for the respondents.
   Opinion by

Gilbert, J.

Appeal dismissed without costs.


text:
    THE SENECA NATION OF INDIANS, Respondent, v. GEORGE HAMMOND, Appellant.

      Ihdiam reservation—cutting and removing timber from—when illegal.

    An appeal from the decision of the Special Term in Cattaraugus county, sustaining the plaintiff’s demurrer to the defendant’s second answer.
    The complaint alleged as a cause of action, the unlawful purchase, talcing and carrying from the Cattaraugus Reservation, of a quantity of cord wood, contrary to the act of November 15, 1847, for the protection, etc., of the Seneca Indians; and demanded judgment for double the value of the property, etc.
    The defendant’s second answer alleged: That in June, 1873, certain Indians, members of the Seneca Nation and Tribe, were residing upon said reservation, and in the occupation and possession of certain lands thereon, which they had inclosed by good substantial fences, and which. lands they had respectively occupied and improved and inclosed for many years. That said Indians, each for his own use and benefit, sold and transferred to defendant trees and timber, then being and growing upon their lands, so occupied and fenced, for which defendant paid to each Indian the full value in money; and afterward cut and carried away therefrom, said cord wood, etc.
    To this answer the -plaintiff demurred, on the ground that it did not state facts constituting a defense.
    The General Term was of opinion that under the laws of the State relative to this reservation (chap. 365 of 1847, § 20; chap. 294 of 1859; chap. 455 of 1873), the acts of the defendant, in cutting and removing the timber from the reservation, were illegal, and affirmed the order.

      J. M. Humphrey, for the appellant.

      James G. Johnson, for the respondent.
   Opinion by

Gilbert, J.

Order affirmed.


text:
    JAMES M. SMITH, Respondent, v. EDWARD E. HAZARD AND OTHERS, APPELLANTS.
    Evidence— Code, § 399.
    Appeal from a judgment in favor of the plaintiff, entered at Special Term.
    This action was brought to foreclose a mortgage made by the defendant Edward E. Hazard and his wife, to Morris Hazard, dated January 27, 1869, to secure the payment of $20,000, with interest. Morris Hazard died in 1870, having made his will devising all his estate, including said mortgage, to Maria B. Hazard, whom.he appointed sole executrix thereof. Subsequently Maria B. Hazard assigned the mortgage to the plaintiff as collateral security for the payment of $69,500. Maria B. Hazard afterward died, leaving a will, and Robert R. Hefford and Robert P. Wilson were appointed executors thereof. This action was brought by Hefford and Wilson, as such executors, and said James M. Smith as plaintiffs. Edward E. Hazard and Margaret D. Hazard answered separately, but their interests were identical.
    The principal point raised by the exceptions, was as to the exclusion of the testimony offered by Edward E. Hazard, of transactions between him and Morris Hazard, deceased, tending to contradict the mortgage.
    The testimony offered was rejected, under section 399 of the Code.
    The General Term was of opinion that the evidence was properly excluded. (Mattoon v. Young, 45 N. Y., 697.)

      Sprague & Gorham, for the appellants.

      Spencer & Clinton, for the respondent.
   Opinion by

Gilbert, J.

Judgment affirmed, with costs.


text:
    THE EVANGELICAL LUTHERAN ST. JOHN ORPHANS’ HOME OF THE CITY OF BUFFALO, Respondent, v. THE BUFFALO HYDRAULIC ASSOCIATION, JACOB GETZ and FRANKLIN GETZ, Appellants.

      Easement—when may he sold under execution.

    Appeal from a judgment in favor of plaintiff, entered upon the report of a referee.
    The action was brought to obtain a perpetual injunction, restraining the defendants from completing a dam across the Buffalo river, at or near the junction of the Cayuga creek with the middle branch of the Buffalo creek, and to remove so much of such dam as they had constructed.
    The property or easement which was the subject of this controversy, was sold under execution issued on a judgment recovered against the defendant corporation. The referee found that the easement was abandoned. That Robert Troup and others were, on and before February 21st, 1828, seized of the lands where the subject of this controversy is located, and - on that day they, by an instrument in writing, gave and granted to said corporation and its successors, among other things, the right and privilege to enter upon and take possession of such piece of land as should be necessary for a dam or dyke, said right to become forfeited in case of any breach or failure to perform the conditions of said instrument. That on the 1st of October, 1852, Ruben B. Heacock recovered a judgment against The Buffalo Hydraulic Association for over $50,000, and upon an execution issued upon that judgment, said right and privilege were sold. That the sale under the execution, and the deed executed and delivered in pursuance thereof, divested the said The Buffalo Hydraulic Association of all rights, title and interests which it then had in said dam, and all the easements and rights of property conferred upon or conveyed to it by said Robert Troup and others. The defendant corporation claimed that the easement became blended with the franchises conferred upon it by the legislature, was a part of them, and could not be sold.

      The General Term held, that the property, and, as appurtenant to it, this easement, was liable to sale under execution (Ang. on W. C., 8, § 142, 143, 153 a; Goodrich v. Burbank, 12 Allen, 461; Post v. Pearsall, 22 Wend., 425); that, as the right to terminate the servitude was expressly reserved to the grantor in the deed conveying it to the said defendant, no question was presented as to the power to abandon an easement acquired by grant.

      Thayer & Benedict, for the appellants.

      Geo. W. Cothran, for the respondent.
   Opinion by

Gilbert, J.

Judgment affirmed, with costs.


text:
    THE MERCHANTS’ BANK OF CANADA, Respondent, v. NELSON HOLLAND, Impleaded with DILLON BEEBE, Appellant.

      Partnership — authority to ad in name of firm obtained by fraud—fraud no defense.

    Appeal from a judgment entered upon the report of a referee in favor of the plaintiff.
    A was engaged in business with B and C as copartners under the name of A & Co. Unknown to B and C, A entered into and carried on another independent business under the name of A & Co. Afterward, on the discovery of this fact, an agreement was entered into between A and B providing for a dissolution of the partnership existing between them, in which settlement the independent business' carried on by A was included, but was so included by reason of false statements made by A to B in relation thereto. It was provided in the Settlement that each party was authorized to use the name of the firm in liquidation, and in making such commercial paper as might be necessary to renew such as already existed or to complete the contracts already made, but no renewals to be made except by the consent of both parties in writing. After the settlement was made, A continued the independent business, and the drafts, to recover upon the acceptances of which this action was brought, were drawn upon A & Co., and accepted or indorsed by A in the name of A & Co., but related to such separate, independent business. The plaintiff had been falsely informed by A, prior to the settlement, that B was one of the firm carrying on the independent business, but said plaintiff never saw, knew or had any notice of the settlement or the provisions thereof. It was held, that B was liable; and that, as after the settlement A had authority by its terms to bind him, it was of no consequence whether the plaintiff knew of such authority or not; that the fraud of A, by which the settlement was obtained, could not be set up by B as against the plaintiff.

      Wm. H. Greene, for the appellant.

      E. C. Sprague, for the respondent.
   Opinion by

Morgan, J.

Present — Mullin, P. J., Smith and Morgan, JJ.

Judgment affirmed.


text:
    THE AGRICULTURAL NATIONAL BANK OF PITTSFIELD, Respondent, v. HIRAM G. SHEFFIELD and others, Appellants.

      Promissory note—when usurious — lex loci contradi.

    The plaintiff, a Massachusetts corporation, agreed to take notes in payment of a judgment, a lien on real estate owned by some of the defendants, under an arrangement which, by the laws of this State, would be usurious, though not so under the laws of Massachusetts. All the defendants resided in the State of Rew York, and the transactions took place in this State, but the notes were dated at Pittsfield, Massachusetts, and made payablejiiere, with the intention, as was claimed by defendants’ counsel, to evade the usury law of this State. The only evidence of such intention was, that one of the defendants offered to draw the note himself ; that the attorney of the bank, in the presence of one of the directors, said “No, we will make the notes ourselves; we have blanks here in my office [at Canandaigua, N. lib], and I will make out the notes,” and he drew the note in question; that there was no agreement or understanding at the time that any of the debt was to be paid in Massachusetts, or that the notes would be paid there. The court at Special Term gave judgment for the plaintiff. The General Term affirmed the judgment, holding that the contract was a Massachusetts contract (Curtis v. Leavitt, 15 N. Y., 88; Cutler v. Wright, 22 id., 472), and that the facts stated were not sufficient to show an intention to evade the statute of this State against usury.

      Wm. H. Smith, for the appellants.

      John Gillette, Jr., for the respondent.
   Opinion by

Morgan, J.

Present — Mullin, P. J., Smith and Morgan, JJ.

Judgment affirmed.


text:
    PETER WILSON, Plaintiff, v. JAMES VAN PELT, Defendant.

      Contract reserving growing crops—liability far use of lands—right of ingress and egress.

    Exceptions ordered tó be heard in the first instance at General Term, on the coming-in of a verdict in favor of plaintiff.
    Articles of agreement were made between A= of the first part and B of the second part. The said party of the first part, in consideration of the sum of $125 per acre, agreed to sell to the party of the second part, his farm in the town of Brutus, “ excepting and reserving the wooden part of the house, up .stairs and down stairs, and the south half of the garden next north of the house, until the 1st of October, 1870. Said A also reserves, for his own use, all the wheat and rye now growing on said premises, together with sufficient room in the barn to put said wheat and rye into, and thresh the same.” A agreed to allow B, on October 1, 1870, $100 “ for the use of the premises above reserved by him, and which said sum of $100 is to be then applied upon the purchase-money of said premises. * * * In case A shall give to B full possession of said premises,-and shall remove therefrom within three weeks, then the above provision in reference to the rent of said premises shall be inoperative, and the said Van Pelt shall pay to said Wilson the sum of $2,100 instead of the sum of $2,000, on the first day of October, 1870.”
    A, having given up the possession within three weeks, and the defendant (B) having harvested and removed the crops, held, in an action by A for conversion, that the court erred in charging the jury that the plain tiff, was not entitled to recover, as the clause of the- contract relating to the giving up possession within three weeks did not affect A’s title to the crops, but only to the wooden part of the house. The court further held, that when growing crops are reserved as such, the party reserving them is not, in the absence of an agreement to pay, liable for the use of the land on which they grow, and has the right of ingress and egress for the purpose of harvesting and removing them. (Whipple v. Foot, 2 Johns., 418; Stewart v. Doughty, 9 id., 108; Shepard v. Philbeck, 4 Den., 174.)

      William Porter, for the plaintiff.

      W. E. Hughitt, for the defendant.
   Opinion by

Mullin, P. J.

New trial ordered, costs to abide event.


text:
    NEHEMIAH RAPLEE, Appellant, v. STEPHEN T. ARNOT, Respondent.
    Appeal from a judgment in favor of the defendant, entered on the decision of a judge, at the Tates county Special Term.
    The court, after consideration of the evidence in the case, concluded that the pleadings precluded a consideration of the case as it was really presented by the evidence, and that the General Term was not at liberty on this appeal to make so radical a change in the nature of the action as would justify a reversal of the judgment.

      J. McGuire and William Rumsey, for the appellant.

      George B. Bradley, for the respondent.
   Opinion by

Gilbert, J.

Judgment affirmed, without prejudice to any other action or proceeding.


text:
    GEORGE W. LESLIE, Receiver, etc., Appellant, v. EPHRAIM DINGMAN, Respondent.
    Appeal from a judgment of the County Court of Oswego, in favor of the defendant, and from an order denying a motion for a new trial made upon the judge’s minutes.
    A question of fact alone was presented by this appeal, which, the General Term held, had been properly submitted to the jury.

      C. W. Avery, for the appellant.

      F. David, for the respondent.
   Opinion by

Morgan, J.

Present — Mullin, P. J., Smith and Morgan, JJ.

Judgment and order affirmed;


text:
    JAMES MORRISON, Administrator, etc., Respondent, v. THE NEW YORK CENTRAL AND HUDSON RIVER RAILROAD COMPANY, Appellant.
    Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury, and from an order denying a motion for a new trial made on a case and exceptions.
    The action was brought to recover for an alleged negligent billing of the plaintiff’s intestate while crossing the track of the defendant. The principal question was whether or not the deceased had been guilty of contributory negligence. The General Term held, that the finding of the jury was conclusive upon this point, and affirmed the judgment.

      A. P. Laning, for the appellant.

      E. C. Sprague, for the respondent.
   Opinion by

Mullin, P. J.

Judgment and order affirmed.


text:
    PHILENA B. FISHER, as Administratrix, etc., of JOHN FISHER, Deceased, PHILENA B. FISHER and CAROLINE C. FRARY, Respondents, v. STANLEY A. BANTA, Impleaded, etc., Appellant.
    Appeal by the defendant from a judgment at Special Term. The action was brought to obtain a judicial construction of the wills of Albert Banta and of Charles Edward Banta.
    The court was of opinion that all the material questions in the case had been disposed of on former appeals. (See 1 N. Y. S. C. [ T. & C.], 97; and 1 Hun, 610.)

      Morse & Wells, for the appellant.

      W. W. Rowley, for the respondent Fisher.

      De L. Crittenden, for the respondent Frary.
   Opinion by

Gilbert, J.

Judgment affirmed, with costs to be paid by the appellant.


text:
    CAROLINE E. EARLL, Respondent, v. MINERVA M. PROUTY, Impleaded with SAMUEL POTTER, Appellant.
    Appeal from a judgment, entered upon the report of a referee. The action was brought to recover damages occasioned by careless and immoderate driving by the servants of the defendant Minerva Prouty, while in her employ. •

      The appellant claimed that no negligence had been proved against her, and also-that the negligence of the plaintiff’s husband contributed to produce the injury complained of. The General.Term refused to reverse the judgment, the evidence being conflicting.

      F. David, for the appellant.

      Pratt, Mitchell & Brown, for the respondent.
   Opinion by

Morgan, J.

Present — Mullin, P. J., Smith and Morgan, JJ.

Judgment affirmed.


text:
    JOHN M. EASTERLY, Plaintiff, v. WILLIAM C. BARBER, Defendant.
    Motion for new trial by both parties, on exceptions ordered to be heard at the General Term in the first instance. The case on a former appeal will be found reported in 3 New York Supreme Court Reports, 421. The only question arising upon the new trial, not already passed upon by the General Term on the former appeal, was as to the effect of a note’s being renewed to replace paper on which all the parties to the new note were liable upon an agreement made when the original paper was made, that the several parties were to be liable, as between themselves, as co-sureties. The judge refused to charge that the giving of the new note did away with the agreement made as to the obligations of the parties on the original note, .and the General Term sustained the ruling, holding that in the absence of any new arrangement, the inference would be that the renewed paper was indorsed upon the basis of the original arrangement.

      E. H. Avery, for the plaintiff.

      Francis Kernan, for the defendant.
   Opinion by

Morgan, J.

Present — Mullin, P. J., Smith and Morgan, JJ.

Motion for new trial denied.


text:
    JAMES WOLSTENHOLME and others v. THE WOLSTENHOLME FILE MANUFACTURING COMPANY.
    Cross appeals from a judgment entered upon the report of. a referee.
    The judgment was $3,085.84, damages and costs in favor of the plaintiffs.
    The defendant appealed from the judgment, upon the ground that the plaintiffs were not entitled to recover any judgment, and the plaintiffs appealed upon the ground that they were entitled to recover a greater amount of damages.
    All the questions of law in this case were decided on a former appeal, the decision in which is reported in 3 Lansing, 464.

      Benj. H. Austin, for the plaintiff.

      E. C. Sprague, for the defendant.
   Opinion by

Morgan, J.

Mullin, P. J., concurred. Smith, J., did not sit.

Judgment affirmed.


text:
    ANN H. PRESTON, Respondent, v. ELMORE P. RUSS, Impleaded, Appellant.
    Appeal from a judgment in favor of the plaintiff, entered upon the report of a referee.
    The General Term held, that the findings of the referee were supported by the evidence, and affirmed the judgment.

      D. Pratt, for the appellant.

      Edwin Allen, for the respondent.
   Opinion by

Smith, J.

Present — Mullin, P. J., Smith and Morgan, JJ.

Judgment affirmed


text:
    JOHN S. LYON, Appellant, v. LOREN WILCOX and another, Administrators, etc., Respondents.
    Appeal from a judgment in favor of the defendant, entered upon the report of a referee.
    In this action, brought to recover the value of work, labor and services, performed for the defendant’s intestate, the referee found that the plaintiff had been paid in full therefor. The General Term held, that this finding was not sustained by the evidence, and reversed the judgment.

      J. W. Dininny, for the appellant.

      George B. Bradley, for the respondents.
   Opinion by

Smith, J.

Present—Mullin, P. J., Smith and Morgan, JJ.

Judgment reversed and new trial granted, costs to abide the* event.


text:
    JOHN OUSBY, Respondent, v. EDMUND G. JONES, Appellant.
    Appeal from a judgment in favor of the plaintiff, entered on a verdict directed by the court.
    The General Term held, that, upon the evidence in the ease, the court erred in directing a verdict, and ordered a new trial.

      W. P. Goodelle, for the appellant.

      F. Hiscock, for the respondent.
   Opinion by

Smith, J.

Present—Mullin, P. J., Smith and Morgan, JJ.

Judgment reversed and new trial granted, costs to abide the event.


author: Davis, P. J.:

text:
    THE TENTH NATIONAL BANK, Plaintiff, v. THE MAYOR, Etc., OF THE CITY OF NEW YORK, Defendant.

      Action for interest cannot he maintained, after acceptance of principad— Commissioners of Charities and Corrections—power of, to harrow money—chap. 9,1872.
    A creditor who has received the principal debt as such in full, cannot thereafter maintain an action for interest.
    The commissioners of charities and corrections have no lawful authority to borrow money and thus create a debt against the city of New York.
    Provisions of chapter"9 of 1872, section 2, construed.
    Motion for a new trial on exceptions ordered to be heard at General Term in the first instance.
    The plaintiff alleges in the complaint that the defendant, on the 1st October, 1871, was indebted to it for advances of money theretofore made to the defendant by and through the department of public charities and corrections to the amount of $277,930.05, for which sum, with interest from October, 1871, it demands judgment.
    The answer alleges payment of the debt set forth in the complaint, on the 8th October, 1872.

      The proof showed that payment of the amount as alleged in the answer, was made in pursuance of a settlement of the claim agreed upon between the parties, and the court thereupon directed a verdict for the defendant.

      Henry H. Anderson, for the plaintiff.

      D. J. Dean, for the defendant.
   Davis, P. J.:

The court on the trial directed a verdict for the defendant. We think the direction was right for several reasons. The loan made by plaintiff to the commissioners of charities and corrections in the form of overdrafts, amounted to the sum of $277,930.05 exclusive of any claim for interest. It was distinctly proposed by the defendant to pay that sum as principal, in full of the claims, and it was made a condition of the payment that the claim for interest should be waived. On this point there was no substantial conflict between the testimony of Mi;. Strahan, who acted on the part of the defendant, and Mr. Palmer, who acted for the plain-, tiff; and the papers executed on the settlement showed that the payment of the principal was in full. This brings the case, we think, clearly within the decisions which hold, in substance, that where a creditor has received the principal debt as such in full, he can thereafter maintain no action for interest. There was no express contract in this ease on the part of the city to pay interest. It was recoverable, if at all, only as damages upon some usage to be shown, from which a contract might be implied; and in such cases the acceptance of the principal in full, especially if accompanied by a waiver of interest as a condition of the payment of the principal, must be held to terminate all right of afition for the debt or any of its incidents. Again, the commissioners of charities and corrections had no lawful authority to borrow money, and thus create a debt against the city. The corporation was not liable to an action to recover the money because the debt was created without authority and by an excess of power on the part of one of its departments. The plaintiff was bound to take notice of this want of power and the limitations it imposed, The act of 1872, which provided that “the comptroller shall be authorized and required to pay back * * * to the various banks, all moneys which have been advanced by said banks, or any of them, prior to December 31, 1871, to or for the use of any of the departments or commissioners of the city and county of New York,” is not to be enlarged to cover more than is expressly provided for in the act. The duty is imposed upon the comptroller and not upon the city. He is authorized and required to pay “ the moneys which have been advanced,” and no provision is made for the payment of interest. Inasmuch as there was no existing legal obligation on the part of the city to pay the indebtedness at all, it will not be implied that the legislature intended to require the comptroller to pay interest on such moneys as well as the principal. Under such circumstances the expression of one should be construed to be the exclusion of the other. But, however this may be, it seems clear that it was in the power of the parties to solve the doubt or controversy that might arise as to the requirement to pay interest, by agreeing that the payment of the moneys actually advanced should' be in full of all claims. There is no need to consider the constitutional question raised by the defendant’s counsel. We think the motion for a new trial should be denied, and that the defendant should have judgment on the verdict, with costs.

Daniels and Brady, JJ., concurred.

Judgment affirmed.

      Jacot v. Emmett, 11 Paige, 142; Gillespie v. Mayor, etc., 3 Edw. Ch., 512; Tillotson v. Preston, 3 Johns., 229; Fake v. Eddy’s Executor, 15 Wend., 76; Consequa v. Fanning, 3 Johns. Ch., 587; Johnston v. Brannan, 5 Johns., 268

      Laws of 1870, chap. 137, §§22, 101; Laws of 1860, chap. 510; Laws 1871 § 15, chap. 574.

       Dillon on Municipal Corp., §§ 380, 419; Hodges v. Buffalo, 2 Denio, 110; Donovan v. The Mayor, 33 N. Y., 291.

         Laws of 1872, chap. 9, § 2.


text:
    THE MARYLAND COAL COMPANY, Appellant, v. HENRY EDWARDS, Respondent.

      Sale of property—credit given to agent—when principal discharged by.

    Where property is sold to an agent who, at the time, discloses the name of his principal, and states that the goods may be charged to him or to his principal, and the vendor, not knowing the principal, charges the goods to the agent, it is a question for the jury whether or not such exclusive credit is given to the agent as to discharge the principal.
    Appeal from a judgment in favor of the defendant, entered upon an order of the court at Circuit dismissing the complaint.

      Elliott F. Shepard, for the appellant.
    Buying in their own name did not discharge their principal, but only added the personal obligation of the agents. (Pothier Traité des Oblig., No. 82; Hopkins v. Laconture, 4 La., 64; Thomson v. Davenport, 9 Barn. & Cress., 78 ; 1 Bell’s Comm. Mer. Jur., §418; Wyatt v. Marquis of Hertford, 3 East, 147 ; Taintor v. Pendergast, 3 Hill, 72.) Plaintiff had made no election to credit the agents, and not the principal. (Story’s Agency, §§ 288, 289; McGraw v. Godfrey [Gen. Term Com. Pleas], 14 Abb. [N. S.], 397; Curtis v. Williamson, L. R. [10 Q. B.], 57; Rathbone v. Tucker, 15 Wend., 498; affirmed, 18 id., 175; Muldon v. Whitlock, 1 Cow., 290; Porter v. Talcott, id., 359.)

      A. Prentice, for the respondent.
   Davis, P. J.:

This action was brought to recover the price of 100 tons of coal, alleged to have been sold by the plaintiff to the defendant. The defendant resided at Canajoharie. His sons were in business in New York, as produce dealers, under the firm name of J. H. & J. T. Edwards. Under date of September 28, 1871, the defendant wrote to his sons as follows:

“ Dear Sons.— I hear this morning that the boat Andrew Farrell went by here yesterday for Buffalo, and did not bring the Cum"berland coal; therefore, you will have to get another boat and send 100 gross tons of Cumberland coal; I must have the coal, certain. Don’t fail to attend to it; and also throw in for 300 tons stove coal for next month. Get best kind of coal for me, well screened.

“ Tours, etc.,

“HENRY EDWARDS.”

J. H. & J. T. Edwards were not dealers in coal. This letter must, therefore, have been understood by them as an order to purchase the coal and procure a boat by which to ship it to defendant at Canajoharie, and for those purposes they were doubtless agents for the defendant. In October following, J. H. Edwards went to the salesman of the plaintiff in New York, and purchased the coal. He told the salesman he bought it for his father, “ a party up the river,” and gave him “ the privilege to charge it to whichever party he saw fit.” The salesman says that not knowing his father, he took a reference as to the firm of J. H. & J. T. Edwards, which proving satisfactory, he charged the coal to them. A bill of the coal was made out to J. H. & J. T. Edwards for the amount, and an order for the delivery of the coal was given. The terms of the sale were cash in thirty days.

J. H. & J. T. Edwards procured a boat to which the coal was delivered at Hoboken. It was carried thence to Canajoharie and delivered to defendant, who was a merchant and dealer in coal at that place. The salesman further testified that he sold the coal to J. H. & J. T. Edwards, and gave the credit to them ; that he made the entry charging the coal to them, as a matter of convenience, because J. H. Edwards allowed him to charge it to either party, and they were in the city; that he “ looked to them to be responsible, for he looked to them for pay.” Evidence was also given, showing the delivery of the coal to the defendant, who paid the freight, and that afterward the defendant said that he did not know whom he would have to pay for it; that he had given the money to his sons to pay for it, and it appeared that they failed and did not pay for it, and they were trying to get it out of him again.

Other evidence was given, tending to show that the sale was made and the credit given to J. H. & J. T. Edwards. On the close of the plaintiff’s evidence, the defendant’s counsel moved for a dismissal of the complaint, on the ground that there was no evidence showing that the defendant ever purchased any coal of plaintiff. „ The court granted the motion, and plaintiff duly excepted.

The evidence in the case certainly tended to show that J. IT. & J. T. Edwards were authorized to purchase the coal for defendant as his agents, and that they so far disclosed the agency .to plaintiff as to say that the coal was bought for their father, a party up the river, and that it might be charged to him or to them, at the election of plaintiff. It is quite clear also, that the coal was charged to them, and the credit given to them; but the witness qualifies this by stating also, that this was done as matter of convenience, the firm residing in the city. The fact of the agency was thus disclosed, and the principal was indicated, and the option given to make the charge to either.

The true question in the case was, as it seems to us, whether, under the circumstances, the credit for the coal was given exclusively to the agents. This was a question of fact for the jury to determine under proper instructions from the court, and notwithstanding tlie evidence tended to show quite strongly that the credit was so given, it seems under all the circumstances to have been a proper case for the consideration of the jury. <c Where the principal is disclosed at the time of the purchase, it then becomes a question of fact to be determined from all the circumstances of the case, whether the vendor relied exclusively upon the credit of the agent or not. If he did, he cannot afterward resort to the principal.”

In the case in 10 Wendell, the word agent ” was used in the bill of goods, and in the draft given on their purchase by the agent. This was all the disclosure made of the principal. The court held that it was a question for the jury to decide, whether the goods were sold exclusively upon the credit of the agent and of the bill or not.

In Rathbone v. Tucker, the agent gave his own note for the purchase, and it was held that the principal was still hidden on failure of the agent to pay the note at maturity, unless it appeared affirmatively that he had sustained injury by the creditor thus dealing with the agent. The statement to plaintiff’s salesman, that the coal was bought for the father of J. H. Edwards, was a disclosure of the principal. It indicated clearly who the principal was, and gave every opportunity of inquiry necessary to ascertain his full name, credit and residence. The case does not, therefore, come strictly within the authorities touching undisclosed principals. It stands upon the question whether exclusive credit was given to the agents. Of course in such a case, the sale is, legally speaking, made to the agents, and the seller is entitled to no recourse against the principal. If the jury had found that the credit was so given, the verdict could not under the evidence have been disturbed; nor do we think that a verdict the other way would have been so clearly unsupported that the court would have been bound to set it aside.

A new trial should therefore be granted, with costs to abide the event.

Daniels and Brady, JJ., concurred.

Judgment reversed and new trial granted, costs to abide event.

       Beebee v. Robert, 12 Wend., 413, per Sutherland, J., page 417; 15 East, 62;. 4 Taunt., 574; Pentz v. Stanton, 10 Wend., 271, 278; Bently v. Griffin, 5 Taunt., 356; 1 Com. L. R., 131; Legget v. Reed, 1 Carr. & Payne, 16 ; 12 E. C. L., 301.

        Ubi supra.

       15 Wend., 498; afterward affirmed by the Court of Errors; see 18 id., 175.


text:
    In the Matter of the Petition of THOMAS R. AGNEW to Vacate an Assessment for Paving Madison avenue.

      Chap. 446, Laws of 1857 — chap. 580, Laws of 1872 — chap. 313, Laws of 1874 — Assessment—efect of failure to publish notice.

    Under section 7 of chapter 446, Laws of 1857, it is sufficient if two days shall intervene between the publication of the notice, thereby required, and the passage of the resolution.

      Matter of Bassford (50 N. Y., 509) and Matter of Douglass (58 Barb., 174) followed.
    Under the provisions of chapter 580, Laws of 1872, providing that “ no assessment for any local improvement * * *' shall hereafter be vacated * * * by reason of any omission to advertise, or irregularity in advertising any ordinance, resolution, notice or other proceedings,” etc., this court has no power, except in cases of fraud or repavement, to vacate an assessment for a failure to publish the notice of the final passage of the resolution authorizing the improvement required by section 7, of chapter 446, Laws of 1857.

      Appeal from an order made at the Special Term, vacating an assessment for paving Madison avenue, in the city of New York, from Forty-second street to Eighty-sixth street.
    It appeared, from the evidence, that the resolution and ordinance authorizing the improvement were introduced into the board of councilmen, July 1,1868, adopted by that board November 9,1868 ; introduced into the board of aldermen, November eleventh, and adopted by that board November sixteenth. That such resolution and ordinance were amended by inserting the “ crosswalk ” provision by the board of aldermen, December 3d, 1868 ; and by the board of councilmen, December tenth. That the only publications in the New York Leader were as follows: November 21st, 1868, of the proceedings of the board of councilmen, of November 9th, 1868, resolution adopted; proceedings of the board of aldermen, of November 11th, 1868, resolution received from the board of councilmen ; proceedings of the board of aldermen, of November 16th, 1868, resolution adopted; November 28th, 1868, proceeding of the board of aldermen of November 19th, 1868, “ crosswalk provision ” introduced.

      E. Delafield Smith and William Barnes, for the appellant.
    The proofs show that the resolution and ordinance were, in fact, published in the New York Leader as required by the seventh section of the charter of 1857. (In re Douglass, 58 Barb., 174.) The assessment in this case not being (or even claimed to be), in any respect a case of fraud, or of a repavement, within the exception of the seventh section of chapter 580 of the Laws of 1872, the same was, under and by virtue of the provisions of said section, adopted, rehabilitated and legalized by the legislature, and declared to be a valid and subsisting lien, notwithstanding any defective advertising, etc. Statutes validating void assessments and other illegal acts and proceedings, are ordinary and well established functions and prerogatives of the legislature, unlimited as to the manner and extent of their exercise, except by prohibitions, if any, contained in the Constitution. (Matter of Van Antwerp et al., 1 N. Y. S. C. [T. & C.], 423, 425; approved by the Court of Appeals, April 7, 1874; Mann v. The City of Utica, 44 How. Pr., 334, per Hardin, J.; Matter of Ferdinand Meyer, 50 N. Y., 504; Litch

      field v. Vernon, 41 id., 124; People ex rel. Albany and Susquehanna Railroad Company v. Mitchell et al., 35 id., 551; People v. The Mayor, etc., of Brooklyn, 4 Comst., 419; Guilford v. Chenango Co., 13 N. Y., 143; Thompson v. Lee Co., 3 Wall., 327.) It is within its province by retrospective legislation, when not impairing the obligation of contracts, to give effect to the intention of parties through their contracts or other acts, although obnoxious to the provisions of existing statutes. Such as to a deed or act not duly acknowledged or otherwise defective. (Watson v. Mercer, 8 Peters, 88; Thompson v. Morgan, 6 Minn., 202; Burnton v. Servers, 12 Iowa, 470; Chestnut v. Shane, 16 Ohio, 509; Jauncey v. Gibson, 50 Penn., 57.) Or void under a prohibitory act. (Washburn v. Leavitt, 35 Barb., 599 ; Beach v. Walker, 6 Conn., 190; Welch v. Wadsworth, 30 id., 149.) “ It may also confirm an imperfect sale of the real estate of minors.” (Suydam v. Bk. of New Brunswick, 3 Green Ch. [N. J.], 144; Dorsey v. Gilbert, 11 Gill & J., 87; Davis v. State Bk., 7 Ind., 316.) Or registry of a deed. (Hughes v. Cannon, 2 Hump., 589.) Or contract of a marriage imperfectly celebrated. (Goshen v. Stonington, 4 Conn., 210; Goshen v. Richmond, 4 Allen, 458.) Or an imperfect execution of judicial process. (Mather v. Chapman, 4 Conn., 54; Beach v. Walker, 6 id., 197.) Or confirm a tax according to a previous assessment. (Locke v. New Orleans, 4 Wall., 172.)

      Herbert A. Shipman, for the respondent.
    The seventh section of chapter 580, Laws of 1872, as amended by chapter 313 of the Laws of 1874, does not cure the commission of a forbidden act; it relates wholly and solely to acts of omission. The failure to give notice as required by section 7, chapter 446, Laws of 1857, under which this assessment was laid, was a failure to acquire jurisdiction which is not cured by the act of 1872. Where the statute prescribes the mode of acquiring jurisdiction, the mode prescribed must be strictly complied with, or the decision will be a nullity. (Bloom v. Burdick, 1 Hill, 130; Stanton v. Ellis, 2 Kern., 575; People v. Board of Police, 6 Abb. Pr., 162; Sharp v. Spier, 4 Hill, 76; Sharp v. Johnson, id., 96; Striker v. Kelly, 7 id., 24; Cruger v. Dougherty, 43 N. Y., 107; In the Matter of Douglass, 46 id., 42; Cruger v. Hudson R. R. R. Co., 12 id., 190; Williams v.
      Haines, 49 id., 587 ; Ireland v. City of Rochester, 51 Barb., 414; 1 R. S., §§ 1, 2, chap. 4, part 1; Rogers v. Spencer, 55 N. Y., 1.) The want of notice, the failure to acquire jurisdiction, cannot be cured by subsequent legislation. (Ireland v. City of Rochester, 51 Barb., 414; Matter of Beekman, 1 Abb. [N. S.], 451; Doughty v. Hope, 3 Denio, 594; Board of Water Commissioners v. Lansing, 45 N. Y., 19; McDaniel v. Correll, 19 Ill., 226, 228; Horn v. Baltimore, 26 Md., 194.)
   Davis, P. J.:

It is not at all clear that the proper publication was not made in the New York Leader, as required by the act of 1857. The ordinance and resolution as amended by the introduction of “ the crosswalk provision,” was adopted by the board of aldermen December 3d, 1868, and by the board of councilmen, on the 10th day of December, 1868. The petitioner showed that on the “ preceding twenty-eighth of November, the proceedings of the board of aldermen of November 19th, 1868, crosswalk provision introduced,’ ” were published in that paper. It was doubtless under the amended resolution that the work was done and the assessment made; and that fact was substantially proved by the petitioner, by the introduction of the proceedings of the board of aldermen, of December 3d, 1868, and the board of councilmen of December 10th, 1868. If the amended resolution was properly published under the law, it does not seem to be important whether the original resolution was so published or not; because it never became operative as an ordinance, having been merged in the amended resolution, and never having received the sanction of the mayor. The amended resolution was published more than two days before its adoption by either body. It was published on the twenty-eighth of November, and the first adoption was the third of December following. In The Matter of Douglass, this court held it to be sufficient if two days shall elapse between the publication of the notice and the passage of the resolution ; ” and that it is only necessary that two days after the publication of the notice shall intervene between the introduction of the resolution and its final passage by both boards of the common council.”

The Matter of Douglass was reversed by the Court of Appeals, but not on grounds affecting the point above referred to ; and in The Matter of the Petition of Sarah E. Bassford, this court adhered to the ruling above quoted, distinctly asserting that the reversal of the Douglass case had not decided the question. The opinion of Ingraham, P. J., in The Matter of Bassford was on appeal adopted by the Court of Appeals, and may be found reported (in note) with Matter of the Petition of Bassford. In the opinion of Andrews, J., in the last cited case, it is said: “ In an application to vacate an assessment under this act ” (the act of 1857) “ the onus of establishing the alleged fraud or irregularity is v/pon the applicant. The party availing himself of the summary remedy given by the statute of 1858, must make it ‘ appear ’ that the alleged fraud or irregularity exists, before he is entitled to relief under it. * * * In the absence of proof that it did not do so” (that is, that the common council did not confirm the assessment) “ it cannot he assumed that the authority was not exercised.” These salutary principles have been singularly obscured by subsequent decisions of the same tribunal. Yet, we venture to invoke them as establishing "a presumption (if the proofs have not established the fact) that what was published in the Leader on the 28tli of November, 1868, was what the law required; and the twenty-eighth being more than two days before the' final passage of the amended resolution by either of the boards, the requirements of the charter of 1857 were complied with sufficiently to uphold the assessment. But if this be not so, we are decidedly of opinion that the case is within the effect of the seventh section of chapter 580 of the Laws of 1872, whether that be completely curative or merely restrictive as to remedies. This case is not one of alleged fraud or repavement. It is shown that six newspapers were designated to publish the proceedings of the common council. The proof of non-publication relates to but one of them. It must be assumed, therefore, that the publications were properly made in the other five papers. The alleged irregularity consists in the omission to publish, regularly, in one out of six. The statute requiring the publication has been held to be mandatory, and the omission was therefore a fatal irregularity, which would lead to the setting aside of the assessment, by the special proceeding authorized by the act of 1858. But by section 7 of chapter 580 of the Laws of 1872, it is provided that assessments shall not be vacated for this and like irregularities unless fraud be shown (except in cases of repavement). This act has been held to be constitutional; and in the same case it was said by the learned chief judge, that “the remedy by petition, under the act of 1858, is preserved, but the grounds for vacating assessments are restricted to actual fraud. * * * It was competent for the legislature to repeal the act of 1858 as to vacating assessments, and of course to regulate and limit it as they deemed proper.” The language of the act of 1872, leaves no doubt but that a case of this kind was intended to be embraced. It provides that: “No assessment * * * for any local improvement or public work in said city * "* * shall hereafter be vacated or set aside, for or by reason of any omission to advertise, or irregularity in advertising any ordinance, resolution, notice or. other proceeding,” etc. This language must operate to prevent or arrest legal proceedings under the act of 1858 to vacate or set aside such assessments; and in the absence of authority in the court to' pronounce the judgment it does not seem to be very material whether the irregularity be one of commission or of omission, nor whether it rendered the assessment absolutely void dr only voidable. The remedy is taken away; and the legislature have power to regulate and limit the remedy as they see ñt. But an assessment is a tax ; and in this case the assessment itself is regular in form, and presumably correct in all respects; but by reason Of irregularity in the proceedings of the common council in ordering the work or improvement which has been made, and for the expense of which the assessment is imposed, it becomes illegal.

There seems to be no question, under the authorities, of the power of the legislature to interpose and make valid such an assessment. An act which in express terms should declare that it shall be valid would be a constitutional exercise of the taxing power; and an act which takes away all legal remedies for vacating and setting-aside such an assessment, ought to be held to have the same effect; although this point has not yet been determined by the court of last resort".

The order of the Special Term should be reversed, with ten dollars costs besides disbursements, and the proceedings dismissed with costs.

Daniels and Brady, JJ., concurred.

Ordered accordingly.

      58 Barb., 174.

      50 N. Y., 509, 511.

       Matter of Mayer, 50 N. Y., 504.

         40 N. Y., 561.

         Chap. 580, § 7.

       See. 50 N. Y. ; 40 id., ubi sup.; People v. Mitchell, 35 id., 551; Lennon v. The Mayor, etc., 55 id., 361; Mann v. The City of Utica, 44 How. Pr., 334; Litchfield v. Vernon, 41 N. Y., 124; Matter of Van Antwerp, 1 N. Y. S. C. (T. & C.), 423, affirmed by Court of Appeals; Howell v. City of Buffalo, 37 N. Y., 267.

      See opinion of Church, Ch. J., in The Matter of Van Antwerp; Lennon v. The Mayor, 55 N. Y., 361.


text:
    THE PEOPLE ex rel. CHARLES W. WALKER v. THE COURT OF SPECIAL SESSIONS OF THE CITY AND COUNTY OF NEW YORK.

      Indictment—abandonment of—Bemoval of cate from General Sessions to Special Sessions— effect of, after indictment found—Bog—not beast of burden—what lawful use of.

    Complaint was made before a police justice charging the relator with the commission of a misdemeanor under the acts for the prevention of cruelty to animals. The relator demanded a trial by jury. The case was sent to the General Sessions, where the relator was indicted and arraigned and pleaded not guilty. Afterward, with the assent of the district attorney, the relator applied to have the complaint sent back to the Special Sessions, which was done and an indorsement to that effect made on the indictment. The relator was brought before the Court of Special Sessions, pleaded not guilty, was tried and convicted, and moved;1 in arrest of judgment, that if his trial was on the indictment the court had not jurisdiction; if on the complaint, that that had been superseded by the indictment. Held, that the relator was to be deemed to have been • tried on the complaint, and that the proceedings and assent of the parties should be considered as an abandonment of the indictment.
    A dog, although not a beast of burden, may lawfully be used upon a treadmill or in any other serviceable employment; but if he is cruelly used, it becomes a crime.

      Certiorari to the Special Sessions to review the conviction"of the relator for a misdemeanor.
    Charles W. Walker was arrested for cruelty to an animal in the city of New York, on May 18, 1874. On being arraigned before the police magistrate, he demanded a trial by jury at the General Sessions. He was indicted May 30, 1874, in that court, arraigned therein and pleaded not guilty, June 2, Í874.
    Some little while thereafter, Walker, with his-counsel, Charles F. Wetmore, Esq., appeared voluntarily at the bar of the Court of General Sessions, and a motion was made to remit the cause for trial to the Special Sessions. The clerk of the General Sessions thereupon entered on the back of the indictment, “ Sent to Special Sessions by request of counsel, June 8, 1874.” .
    On June 8, 1874, the complaint was sent by the Court of General Sessions to the Court of Special Sessions, for trial therein. Walker appeared, the charge stated in the complaint was then read to him, he pleaded not guilty thereto, the plea was entered in the minutes of the court, and the trial proceeded. When the evidence on both sides was closed, the counsel for the relator claimed that if the case was tried on the complaint, it was superseded by the indictment; if on the indictment, the court had no jurisdiction.

      H. O. Southworth, for the relator.

      B. K. Phelps, for the respondent.
   Davis, P. J.:

Complaint on oath was made before a police justice on the 18th of May, 1874, charging the relator with a misdemeanor under the several acts for the prevention of cruelty to animals. The particular offense charged was the cruel treatment of a dog used by the relator on what is called a treadmill in the complaint. t The relator was arrested, and on being arraigned before the police justice and on being informed' of his rights, he demanded in writing a trial by jury of the complaint, and a trial at the Court of General Sessions of the Peace. The proceedings were thereupon sent to the General Sessions. On the thirtieth of May following, the relator was indicted in that court, and on being arraigned on the 2d day of June, 1874, pleaded not guilty. Afterward the relator and his counsel appeared in the General Sessions held by and before the recorder, and with the assent of the district attorney made application that the complaint be sent back to the Special Sessions for trial. The application was granted, and an entry to that effect was made by the clerk of the court on the back of the indictment. The return states that subsequently, on the 8th of June, 1874, the said complaint was sent by the Court of General Sessions aforesaid, to the Court of Special Sessions in said city and county, for trial by the said last named court, as appears by an indorsement upon the said complaint in these words, to wit: Sent to Court of Special Sessions, by request of counsel, June 8th, 1874.’” On the eighth of October following, the.Court of Special Sessions organized for the trial of misdemeanors, and caused the relator, as the return states, “ to be brought before them for trial on the • said complaint,” and the charge in said complaint was distinctly read to the relator, and he pleaded thereto “ not guilty,” which plea was duly entered in the minutes. The court thereupon proceeded to try the issue. No objection whatever seems to have been made at this stage, to the jurisdiction of the court, or to the regularity of the proceedings ; and none seems to have been suggested till after the close of the case for the prosecution; and no question of jurisdiction was distinctly raised till the evidence on both sides was closed. At that point the defendant’s counsel said to the court: If the case was tried on the complaint he would ask for an arrest of judgment ; if on the indictment he would claim that the court had no power to try it by consent or otherwise.” The court said it had nothing to do with the indictment; and after the court found the defendant “ guilty on the evidence,” the “ defendant’s counsel moved in arrest of judgment, on the ground that if the finding is upon the complaint, the complaint has been superseded by the indictment.” The motion was denied and exception taken; and the relator was sentenced upon the conviction to pay a fine of twenty-five dollars. A record of the conviction and judgment was made in due form, and is annexed to the return. It cannot be doubted that the proceedings in the General Sessions, to send the complaint back to the Special Sessions for trial, were informal and irregular. But they were taken with the consent and at the request of the relator and as matter of favor to "him. Whether the relator could not, at any time before going to trial on the complaint at the Special Sessions, have insisted upon his right to be tried by a jury at the General Sessions on the indictment, notwithstanding all that had taken place in respect to remanding the complaint, is not the question here before us. He appeared before the Special Sessions, to which court at his request the complaint had been sent, and joined issue upon the complaint, and went to trial according to the legal course of procedure in that tribunal, ignoring and waiving for that purpose his former demand of trial in the higher court and the indictment therein, and in effect consenting to all the jurisdiction over the complaint that the Special Sessions could have had if he had originally elected to be tried by that tribunal. By the act of 1855 jurisdiction is given to the Special Sessions to try complaints for misdemeanors, when made in the police courts, whenever the. arrested party chooses to waive his constitutional right of trial by jury as provided by the act cited and its amendments. When he elects to be tried by jury in the court of General Sessions, the Special Sessions have no jurisdiction to try the case unless the party chooses to waive his election, and voluntarily go to trial upon the complaint in that court. If he does make such a Waiver, and goes to trial upon issue joined on the complaint, there 'seems to be no sound reason for permitting him afterward to allege ■ any objection to the jurisdiction of the court. The substance of this ease is, that upon a complaint for misdemeanor, which it is not asserted was not within the jurisdiction of the Special Sessions originally to have tried, the relator had taken steps to secure to himself a right to be tried by jury on an indictment in the General Sessions; but he voluntarily waived that light and formally consented to be tried on the complaint by the Special Sessions. He could not consent to the trial of the indictment in that court, because the indictment could only be tried according to the course of the common law by a jury of twelve men, in a tribunal having jurisdiction to try such indictments. That was settled in Cancemi’s case. But it is quite another thing to consent to a suspension of proceedings on the indictment, and to go back and be tried on the complaint by the Special Sessions. It is in legal effect precisely like appearing upon a new complaint in the latter tribunal and consenting to a trial according to its course, although an indictment for the same misdemeanor be pending in the higher court. The Special Sessions would not in such case be without jurisdiction, and its conviction and sentence would not be void. What effect they would have upon the pending indictment, would be quite another question. The practical effect of what took place in the General Sessions with the consent of the district attorney, the relator and the court, should be deemed equivalent to an abandonment of the indictment, and doubtless a formal order of nolle pros, ought to be entered; but this question is one that will properly arise if ever any attempt is made to try the relator on the indictment after his conviction on the complaint.

This case is disposed of, we think, when we determine that the relator has not been tried upon the indictment at all, and so has not been deprived of any constitutional right guaranteed to him upon such a trial; and that he has been tried upon a complaint only by his own consent before a tribunal having jurisdiction of such complaints, and according to its legal forms of procedure; and that he failed on such trial to plead the pendency of the indictment, or to raise any question at such time and in such manner, that he can now be heard to allege error notwithstanding his own consent and submission to the jurisdiction. On the merits of this case there appear to be no reasons for interfering with the judgment. Although a dog is not a “ beast of burden ” yet it is not cruelty to train and subject him to any useful purpose. His use upon a “ treadmill ” or an “ inclined plane,” or in any mode by which his strength or docility may be. made serviceable to man, is commendable and not criminal; but his abuse while so employed, whenever it amounts to cruelty, is a crime and punishable precisely under the same circumstances as the cruel usage of the higher animals. Evidence enough was given on the part of the prosecution to show harsh and unreasonable treatment of his dog by the relator, producing unnecessary pain and suffering, and it was for the court below to determine from the conflicting evidence whether the alleged cruelty was established.

We think the writ should be dismissed, and the proceedings of the Special Term affirmed.

Daniels and Brady, JJ., concurred.

Ordered accordingly.

      Laws of 1855, chap. 337, § 5; 5 Edm. Stat. at Large, 178.

       18 N. Y., 128.


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    THE HEBREW FREE SCHOOL ASSOCIATION, Respondent, v. THE MAYOR, Etc., OF THE CITY OF NEW YORK, Appellant.

      Chap. 282, Laws of 1852—meaning of words '■'■religious society ” and "exclusively the property" in— Obud upon title—Assessment upon property exempt by law.

    Chapter 282 of the Laws of 1852, limiting the exemptions from taxation created by the Revised Statutes (1 R. S., 388, § 4, sub. 3) was not intended to require the property to belong exclusively to a religious society, organized as an incorporated church, but to a society whose organization and objects should be of a benevolent, charitable or missionary character, falling within the general sense of the term religious, as contradistinguished from private and secular institutions.
    Where a religious society, within the meaning of the act, is the owner of a leasehold interest in certain land for a term of eleven years, with a privilege of renewing the lease upon the expiration of the said term, and the absolute owner of the building thereon, and such property is used as a school-house, the society being bound to pay all taxes and assessments, such property is the “ exclusive property ” of the society, within the meaning of the act, and is entitled to the exemption from taxation thereby created.
    An action can be maintained by such a society to have taxes assessed against it declared void, where the proceedings are regular on their face, and extrinsic evidence is requisite to show the invalidity of the tax.
    Where a taz is imposed upon property exempt by law, the omission to appear before the commissioner of taxes does not give validity to the assessment.
    Appeal from an order made at the Special Term, overruling a demurrer to the complaint.
    The complaint alleges that the plaintiff is a religious, charitable, literary, scientific and educational corporation, created and organized March 13, 1865, pursuant to the act of the legislature entitled “ an act for the incorporation of benevolent, charitable, scientific and missionary societies,” passed April 12, 1848, and acts amendatory thereto. That the purpose of said corporation is to provide “.for the gratuitous instruction of Jewish youth in the Hebrew religion and language, and other branches of knowledge, and to promote the study of Hebrew literature.”
    That the corporation has become the assignee of a lease of certain premises, for a term of twenty-one years from November 21, 1864, with privilege of renewal, made by Hamilton Fish to Joseph Mayer, upon which premises was situate a building which was the property of said Mayer, and which he conveyed to the plaintiff.
    That, by the covenant in said lease, the lessee and his assigns are bound to pay the taxes imposed on said premises. That the said house and lot are used by the plaintiff exclusively as a schoolhouse or seminary of learning. That the said house and lot is known by the Ward No. 1,234, and taxes have been imposed thereon for the years 1869 and 1870. The plaintiff then alleges that its property is exempt from taxation ; that it has been illegally taxed; and that the illegality complained of forms no part of the record, and can be established only by extrinsic evidence. The plaintiff then demands that the taxes be adjudged void, and the defendant and its agents enjoined and restrained forever from enforcing the same. Defendant demurred upon the ground that the complaint did not state facts sufficient to constitute a cause of action.

      E. Delafield Smith and D. J. Dean, for the appellant.
    The property in question is not exempt from taxation unless the plaintiff is a religious society. It is submitted that a corporation incorporated under the act of 1848, is not a religious society within the statute. Religious societies in this State are incorporated under a statute other than the statute under which the plaintiff was incorporated, viz., chapter 60 of the Laws of 1813, and the laws amendatory thereto. (See 3 R. S. [Edm. ed.], 687-704.) The tax which in the complaint is alleged to have been imposed upon real estate known as lot No. 1,234, in the Eleventh ward, was not imposed upon the property of the plaintiff. The fee of the lot in question, as appears by the complaint, is owned by Hamilton Fish. The interest of the plaintiff in the premises consists of: First, it owns the buildings situate thereon; second, it owns a leasehold interest in the lot for a term of years. Neither of the interests of the plaintiff is real estate, or liable to taxation as such. They constitute chattels, taxable, if at all, as personal property. By its covenant with the owner of the fee the plaintiff has agreed, as a part of its rent, to pay the taxes which otherwise would be collected from the owner of the fee, and which he is primarily liable to pay to the defendants. Suppose the lease contained no covenant that the lessee would pay the taxes imposed upon the property, then it is clear that the owner of the fee only would be burdened by the tax imposed upon the property, and it would be his duty to pay the tax. It is, therefore, unreasonable that, by procuring a covenant from his lessee that it would pay the taxes, the premises should become exempt entirely from taxation, if the lessee should be a religious corporation. The premises are not exclusively the property of the plaintiff. The interest of the owner of the fee is inconsistent with the claim of the plaintiff, that it is the exclusive owner of the premises. An injunction to restrain the collection of a tax, on the sole ground of the illegality of the tax, cannot be maintained. There must be an allegation of fraud, that it creates a cloud upon the title, or some cause presenting a case of equity jurisdiction. (Morse v. Smedley, 6 Johns. Ch., 28; Heywood v. Buffalo; 14 N. Y., 534; Susquehanna Bank v. Supervisors of Broome County, 23 id., 312; Dows v. The City of Chicago, 11 Wall., 109; Hannewinkle v. Georgetown, 15 id., 547.)

      Neville & Andrews, for the respondent.
    By reference to the statute (R. S., chap. 13, pt. 1, tit. 1, § 5, sub. 3), it will be seen that the exemption is of “ every building,” etc., and (but only incidentally) “ the several lots whereon such buildings are situated,” and by the sixth section it is the “ building” that is to be exclusively used and to be exclusively the property, etc., so that it would seem that the use made of the “ building ” carries with it the exemption of the lot. (Chegary v. Jenkins, 5 N. Y., 376, where the plaintiff was not ever owner of the building.) For the purposes of taxation, the plaintiffs are the owners of the lot, that is to say, if they were not exempt from taxation they are the parties to be taxed for the land. The plaintiffs have an estate for years, and are bound to pay taxes. During their term they are the owners of the lot. This is an estate recognized by statute. (3 R. S. [5th ed.], p. 10.) The tax is not against the land but against the person. (R. S. [5th ed.], chap. 13, pt. 1, tit. 2, art. 1, § 1, p. 908.) The tax is a charge against the person, not against the land; the land is merely security for the tax. (Colgate v. The Mayor, 2 Kern., 140.)
   Davis, P. J.:

It is provided by section 4, title 1, chapter 13, part 1 of the Revised Statutes, that every building erected for the use of a college, incorporated academy, or other seminary of learning; every ' building for public worship; every school-house, court-house and jail; and the several lots whereon such buildings are situated, and the furniture belonging to each of them,” shall be exempt from taxation. Chapter 282 of the Laws of 1852 provides that the foregoing provisions of the statutes shall not apply to any such building or premises in the city of Hew York, unless the same be exclusively used for such purposes and exclusively the property of a religious society, or of the Hew York Public School Society.” •

The first point made on this appeal is, that the plaintiff is not a “ religious society,” within the meaning of the act of 1852, and therefore the property described in the complaint is not exempt, although used exclusively for the purposes of a school. This point is based upon the fact, which appears in the complaint, that the plaintiff is organized under the act entitled “an act for the incorporation of benevolent, charitable, scientific and missionary societies,” passed April 12th, 1848, and not under chapter 60 of the Laws of 1813, and the laws amendatory thereof, which provide for the incorporation of religious societies. But we think the words, “ a religious society,” used in the act of 1852, were not intended to be used in the limited signification of church incorporations, or bodies organized for the mere purpose of establishing church societies, as provided by the act of 1813" and its amendments. It is true that the act of 1848 was not intended for the organization of religious societies in the sense of incorporated churches; but in the more general sense we see no reason why a body like the plaintiff may not be deemed a religions society, and as such the exclusive owner of property devoted to a school for religious and other instruction. Or, in other words, we think the act of 1852, in limiting the exemptions from taxation created by the Revised Statutes, was not intended to require the property to belong exclusively to a religious society organized as an incorporated church, but to a society whose organization and object should be of the benevolent, charitable or missionary character, falling within the general sense of the term “religious” as contradistinguished from private and secular institutions. The second point, to wit, that the property taxed is not shown to he exclusively the property of the plaintiff, was very fully discussed by the court at Special Term. We concur in the conclusions of the learned judge in the opinion ho pronounced on that question. The property is what is familiarly known as leasehold. The owner of the reversion, or fee, has executed a lease for a long term of years, for a stipulated rental, with the right of renewal for further terms, and with the usual provisions as to buildings that are or may be erected by the lessee or his assigns, and with covenants for the payment of all taxes and assessments lawfully imposed. The plaintiff is owner, by assignment, of such a leasehold interest, and absolutely of the buildings on the premises, subject to the provisions of the lease. As owner of the term and of the buildings on the demised premises, the plaintiff is, we think, exclusively the owner of the property for the purpose of enjoying the right of exemption under the statute above cited. It is upon its property exclusively that the taxes imposed must fall; for, in every practical sense, what is assessed "and sought tobe taxed is the interest owned and possessed by the plaintiffj and not the reversion of the owner in fee.

The question should be determined by its present practical results, and not by ultimate effects that may result from the modes by which the taxes can lawfully be enforced. The property in the premises of which the plaintiff is the owner, is exclusively its own. That property is exempt under the statute, because it is devoted to the use of a seminary of learning, and is the property of a religious society. Both as between itself and the city, and between itself and the owner of the reversion, the taxation is primarily upon the plaintiff’s property; and we do not think that fact is disturbed by the fact that the tax may also be regarded as a lien both upon the term and the remainder. We concur therefore in the views expressed, and the result reached on this point by the court below.

The relief prayed for by the complaint seems to be appropriate within Heywood v. The City of Buffalo, because the assessment, on the face of the proceedings to impose it, is a valid lien on the land, and extrinsic evidence is requisite to show its invalidity.”

The tax having been imposed, without jurisdiction, upon property exempt by law, the omission to appear before the commissioner of taxes and object, did not give validity to the assessment.

The order should be affirmed with costs, with leave to answer over on payment of costs.

Daniels and Brady, JJ., concurred.

Ordered accordingly.

      14 N. Y., 534.

       The National Bank of Chemung v. The City of Elmira, 53 N. Y., 49.


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    THOMAS J. GIBBONS, Respondent, v. ISAAC DAYTON, Public Administrator, etc., Appellant.

      Tenancy from month to month—how terminated—notice.

    Under a lease providing that the term of letting and hiring is for one month only, and will expire at noon on the first day of the following month, a tenancy from month to month is created, and neither party is hound to give any notice to the other in order to terminate it.
    Appeal from a judgment entered upon an order of this court, confirming the report of the referee in this proceeding.
    The proceeding grew out of a claim for rent, filed by the plaintiff with the defendant as administrator of the goods, etc., of Anna Maria Merriam, deceased; which claim was referred by agreement of the parties, pursuant to the statute.
    The claim is for rent of the second floor of the premises known as No. 165 Bleecker street, from May 1st, 1873, to April 1st, 1874.
    It appears from undisputed evidence, that Mrs. Merriam had resided in the premises a number of years prior to her death; that she leased the premises; that no lease was ever made between herself and the plaintiff, other than in the form of receipts for rent, of the following description:

      Rent must be paid invariably in advance on the first day of the month.
    New York, Sept. 1st, 1871.
    Received from Mrs. Mary Merriam the sum of sixty dollars, for one month rent only, in advance, for second floor rooms in house N o. 165 Bleecker street, ending October 1, 1871, at noon.
    It being expressly understood between us, the tenant and agent, or landlord mentioned in this receipt, that this term of hiring and letting is for one month only, and will expire as aforesaid.
    $60. THOMAS J. GIBBONS.

      L. H. Arnold, Jr., and John Todd, for the appellant.
    The tenancy cannot be construed into a tenancy continuing to the 1st May, 1874. (1 R. S., 695, § 1; People ex rel. Aldhouse v. Goelet, 14 Abb. Pr. [N. S.], 130.) A month’s notice by the personal representatives of Mrs. Merriam to the plaintiff, after her decease, was unnecessary to terminate a tenancy which had already expired. (People ex rel. Gleahill v. Schackno, 48 Barb., 551; People ex rel. Aldhouse v. Goelet, supra; Mackay v. Mackreth, 4 Doug., 213.) "Whatever claim the plaintiff may have against the estate of Mrs. Merriam for storing her effects for July, it is clear that the defendant is not liable as a tenant for rent for that month. (Pugsley v. Aiken, 11 N. Y., 494.)

      J. Warren Greene, for the respondent.
   Davis, P. J.:

The appellant is public administrator, and as such was appointed administrator of the estate of one Anna Maria Merriam, deceased. The respondent presented a claim for rent against the estate, which being disputed, was submitted to reference, with the approval of the surrogate, in conformity to the statute in such case made and provided. Mrs. Merriam, the intestate, was the tenant of the respondent from month to month; she had been accustomed to receive, on payment of the monthly rent at the beginning of each month, an instrument acknowledging the receipt of the" rent and expressing the term atid nature of the tenancy. Such an instrument was executed and delivered to her about the 1st of April, 1873, on payment of the rent for that month. About the first of May, Mrs. Merriam was taken sick and went to the house of a friend where she became so ill that she was unable to return to her rooms, and she remained at her friend’s till her death which occurred on the 6th of June, 1873. Her furniture and other personal property remained at the rooms leased to her by respondent until about the 29th or 30th of July, 1873. About the twenty-eighth of July, the appellant received notice of the death of Mrs. Merriam, and was on that day appointed her administrator, and on the twenty-ninth or thirtieth of July removed all articles of any apparent value from the premises previously occupied by her, and about the same time sent the keys of the rooms to the place of business of respondent and left them with a boy in the office, with a message that they were the keys of such rooms. The respondent on learning that the keys had been sent to his office refused to receive them, and sent them back to the office of appellant. The clerk of the appellant also refused to receive them. On the sixteenth of February following, the respondent entered the rooms, cleaned them out and repaired them, removing the articles of no value left in- them to the cellar of the building. The referee held, that the intestate was tenant from month to month, that there had been no lawful surrender of the premises, and that the appellant was liable for the rent down to the time of the entry of respondent on the 16th of February, 1874, at the rate of sixty dollars per month, and directed judgment accordingly.

It is very clear that the tenancy of the intestate was from month to month. Neither party was bound to give any notice to the other in order to terminate the tenancy at the expiration of any month. The landlord could have removed the tenant by summary proceedings without notice; and so the tenant could lawfully have left the premises at the expiration of any month without notice, and without being bound to pay further rent.

The death of Mrs. Merriam did not change the character of the tenancy, and the appellant is not liable beyond the obligations that rested and would have remained upon her had she continued to live and retain her possession down to the day when appellant removed the property and sent the keys to the respondent’s office. She would in that case, have been chargeable with rent for the months of May, June and July ; but her tenancy would have terminated with the month of July. The appellant acted promptly and with apparent good faith. He was appointed administrator on the twenty-eighth of July, and on the next day, or on the thirtieth, moved the furniture and everything of value from the premises and sent the keys to the landlord. This was a complete termination of the tenancy, and full notice that the term would not be renewed for another month. A few articles were left in the rooms, but they seem from the evidence to have been nothing more than worthless things which the referee finds to have been valueless. The rooms were excessively dirty; but the litter and filth, and worthless fragments and articles which tenants are often accustomed to leave behind them, have never been held to constitute a continuance of the tenancy.. The landlord’s remedy, if any, for such an injury is quite different from treating the tenancy as renewed by the omission to carry everything away whether valuable or not. The referee has charged the administrator with rent after the month of July, on the ground that there was no formal surrender by him of the premises to the landlord. No form was necessary under the facts of the case beyond a removal at or before the expiration of the month, and the restoration of the keys to the landlord so that he could enter upon possession. The case is not like that of Pugsley v. Aiken, where the lease was for “ one year and an indefinite period thereafter,” for in this case the express terms of the lease are “that this term of letting and hiring is for one month only and will expire” at noon on the first day of the following _month. There should have been a recovery therefore only for the rent of the months of May, June and July, with interest on each month’s rent from the time it was payable.

The judgment should be reversed and a new trial granted, with costs of the appeal to the appellant, unless the respondent shall stipulate to modify the judgment by reducing it to the rent for the months above named and interest, in which case it may be affirmed as modified, without costs to either party on this appeal as against the other.

Daniels and Brady, JJ., concurred.

Ordered accordingly.

       People ex rel. Gleahill v. Schackno, 48 Barb., 551; People v. Goelet, 14 Abb. Pr. (N. S.), 130.

       11 N. Y., 494.