author: Dwight, P. J.

text:
    J. Felix Nassoiy, App’lt, v. David H. Tomlinson et al., Resp’ts.

      (Supreme Court, General Term, Fifth Department,

      Filed October 21, 1892.)

    Accord and satisfaction—Evidence.
    In an action for a balance of commissions on a sale of real estate, the defense was that a payment of $300 was in full. It appeared that the payment was made by check of C., enclosed in a letter which said “ I send you a check for $300, your commission on the sale, please sign and return the inclosed voucher.” No evidence was given that the voucher was inclosed. The plaintiff replied, claiming $1,500, and called on 0. reiterating his claim which 0. refused to pay. Six months later plaintiff collected the check and sent O. a receipt “in part payment for commissions.” Plaintiff was nonsuited on the ground that the check was accepted by him in full payment and' satisfaction of his claim. Held, error; that no presumption of consent to satisfy the debt would arise under the circumstances.
    Appeal by the plaintiff from so much of a judgment, entered in Niagara county on an order of the court, as dismissed the plaintiff’s complaint as to the second cause of action stated therein. '

      F. A. Dudley, for app’lt; J. E. Pound, for resp’ts.
   Dwight, P. J.

The cause of action upon which the plaintiff was nonsuited was for a balance of commissions alleged to be due to the plaintiff on a sale of real estate by him for the defendants. The employment of the former, and the fact of a sale effected by him of a farm of sixty acres at the price of $30,000, were not in . dispute. The defense insisted upon was payment of $300, or one per centum of the consideration realized, which was alleged ta-ha ve been received by the plaintiff in full of his demand. The $300 was in fact received by the plaintiff, but, as he alleged, on-account only, leaving due to him the balance of $1,500, or five per centum on the sale, which the plaintiff alleged was the commission agreed upon by the parties.

The $300 was paid by check of one Chauncey, an agent of the? defendants, transmitted by mail from ISTew York to the plaintiff at Suspension Bridge, enclosed in a letter of Chauncey, of which; the following is a copy :

“ New York, June 20, 1887.
“ Dear Sir—I heard to-day from Mr. Griffith that the sale to Weston was completed on Saturday. I send you a check for $300 (1 per cent, on $30,000), your commission on the sale; please sign and return the enclosed voucher. I wish you would see that the tax rolls are corrected, etc.
“ Yours truly,
“ (Signed), Elihu Chauncey.”'

There is no paper in evidence which answers to the “ voucher mentioned in the letter, and no evidence that any such paper was in fact enclosed. To this communication the plaintiff made the following answer:

“ Suspension Bridge, N. Y., June 23, 1887.
“ Elihu Chauncey, Esq.:
“Dear Sir—Yours of the 20th at hand. I don’t know what you mean by sending me a check for $300. I want my 5 per cent commissions on the $30,000. I got you $5,000 more than you could have got anybody else to get for you. Please answer at once. Yours truly,
“(Signed), J. Felix Nassoiy.’’

To this letter Chauncey made no reply; but shortly afterwards the plaintiff called on him in ISTew York and reiterated his claim to a commission of five per cent, which Chauncey refused to pay, or to pay him anything in addition to the $300. The plaintiff held the check until the next January, when he collected it and sent a receipt to Chauncey for the money “ in part payment for commissions, etc.”

The plaintiff was nonsuited on the sole ground that the $300 was received and accepted by him in full payment and satisfaction of his disputed claim for $1,500. We think the ground of the decision was untenable, and that the nonsuit was error. There-is no pretense that the plaintiff did, in fact, consent to receive the $300 in full; all the evidence is "to the contrary. He refused in terms to accept it in full, and receipted for it, in terms, as part payment only. The contention is that the payment having been tendered as in full, and accepted by the plaintiff, he is, in law, conclusively presumed to have accepted it in full. This propositian cannot be maintained. Consent as an element of a contract is a fact; whether- or not it exists is a question of fact to be determined upon the evidence. It cannot be determined upon any conclusive presumption of law short of an equitable estoppel There was no such estoppel in this case. The defendants owed the plaintiff his commissions on the sale of the farm. He claimed five per cent, and the defendants, by their agent, sent him a check for one per cent, which the agent of the defendants denominated '“your commissions on the sale.” The check was no indication that it was intended as payment in full, and the voucher which fhe agent seems to have intended to enclose for the plaintiff’s signature was omitted. Under these circumstances the act of the ■plaintiff in collecting the check and applying the avails in part payment of his claim, did not in any measure estop him to deny ■.that he had accepted it in full. He had neither done nor asserted .lanything which misled the defendants. He had received what, upon the defendants’ assertion, was no more than his due, and, ’ upon his own, was much less, and with full notice to them that it was not accepted in full, he had applied it in part payment of the indebtedness as claimed by him.

Ho presumption of consent to satisfy the debt could possibly :arise ’under these circumstances, and without such consent there was -no -accord and satisfaction. Fuller v. Kemp, 40 St. Rep., 672; McKeen v. Morse, 1 Blatch. U. S. Ct. App., 7. The cases of Looby v. West Troy, 24 Hun 80, and Hills v. Sommer, 53 id., 392 ; 25 St. Rep., 1003, cited by counsel for the defendants, are distinguished iby their facts from the case in hand, and not necessarily in conflict with the principles herein stated.

We think the evidence in this case fails of establishing the defense of an accord and satisfaction, and, accordingly, that the judgment on the second cause of action stated in the complaint .must be reversed and a new trial granted.

Judgment appealed from reversed and a new trial granted, with •costs to abide the event.

Macomber and Lewis, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    The Wheeler & Wilson Mfg. Co., Pl’ff, v. William E. Keeler, Sheriff, et al., Def’ts.

      (Supreme Court, General Term, Fifth Department,

      Filed October 21, 1892.)

    1. Sale—Conditional—Waiver oe conditions.
    In an action to replevin certain sewing machines, it appeared that they .had been sold to R. & T. Co. under an agreement that it should give “ a •good eleven months note” for the price when the bill was rendered, and before the machines were set up. The note was not given, although a bill was rendered, and the machines were set up. Held, that the condition of sale was waived by an unconditional delivery of the property.
    S. Fraud—Evidence oe intention.
    In such case, evidence that the business of R. &T. Co. was loosely con-ducted and the books imperfectly kept, is not sufficient to warrant the -submission of the question whether or not the goods were procured by fraud, there being nothing to show an intention in the vendees not to pay for the goods.

      3. Same—Evidence of one fraud to prove another.
    A written statement by R & T. Co., partially untrue, made about a month before the sale and delivered to a bank, on its face purporting to have been made to obtain additional credit, but no credit being sought or obtained thereon, does not come within the rule laid down in Gary v. Ho-tailing, 1 Hill, 311, and is not admissible in evidence.
    4. Same—Evidence of debtor’s assets at time of failure.
    Evidence of the total assets of the debtor company at the time of its failure is inadmissible without proof of the transactions of the company to show the amount of its assets at the date of the sale.
    Motion by plaintiff for a new trial on a case and exceptions ordered to be heard in the first instance at general term, after non-suit granted at the circuit.

      J. W. O'Brien, for pl’ff; C. I. Avery, for deft Keeler; E. C. Aikin, for def’t Jones.
   Dwight, P. J.

The action was replevin for a lot of sewing machines, and the sole question was of the plaintiff’s title to the property at the time of the commencement of the action.

The property had been sold to the Rheubottom & Teal Manufacturing Company, of Weedsport, several months before, under an agreement that the vendee should give a good eleven months note ” for the price when the bill was rendered, and without waiting for the machines to be set up. The note was not given, although it bill was rendered, and the machines were afterwards shipped and set up.

These facts present the first ground of the plaintiff’s claim retake the property, viz., that the sale was conditional, and that* the condition not being performed, title to the property did not pass. The contention is unavailing because the condition of sale was waived by an unconditional delivery of the property. Smith v. Lynes, 1 Seld., 41. No demand was made for the note when the bill was rendered nor when the property was delivered, and the delivery was without condition. The plaintiff seeks to account for its failure to insist upon the condition of the sale, on the theory of a misunderstanding between two of its own agents. But the fact of an unqualified delivery of the. property remains, and the effect is the same, whatever the cause, so long as it was not one for which the vendee was responsible.

The second alleged ground of avoidance of the sale is that it was procured by fraud, viz., that the vendee was in failing circumstances at the time, and that he bought the property with the intention not to pay for it; and this was 'the question chiefly litigated on the trial.

We think the learned court at the circuit was correct in holding that there was not evidence to warrant the submission of that-question to the jury. It is well settled that the mere fact of insolvency, though well known to the vendee and not disclosed to> the vendor, does not afford ground for imputing fraud to the former - there must have been the intent when the property was purchased not to pay for it. Coffin v. Hollister, 27 St. Rep., 637; Hotchkin v. Bank, 127 N. Y., 329 ; 38 St. Rep., 754, and the cases cited-

The vendee of the property in this case was probably insolvent at the time of the purchase; at least, if that had been the controlling question, it should have been submitted to the jury; but we think there was clearly not evidence which would have warranted the finding that the officers of the company regarded its condition as hopeless, or did not expect that it would continue in business and meet its current liabilities as they should fall due. The evidence indicates that the business was loosely conducted and the books imperfectly kept, but we think it fails to show that the officers were aware of the actual insolvency of the company at the time of the purchase of the sewing machines; still less that they contemplated a failure before the machines should be paid for.

It only remains to consider two exceptions taken by the plaintiff to rulings of the court on questions of evidence. The plaintiff offered in evidence a written statement signed and verified by the president of the debtor company in July, 1890, about a month before the purchase of the machines of the plaintiff, addressed and delivered to a banking firm in Weedsport, which on its face purported to have been made for the purpose of obtaining, at some time, additional credit for the company. There was also the offer to show that the statement contained representations bearing upon the credit of the company, which were not true at the time it was made. The evidence was excluded. Its admissibility is contended for under the rule which admits the evidence of other frauds of the same party, at about the same time, of a character similar to that under investigation.

We think the ruling was entirely correct in this case, for the reason that in the case of the statement offered in evidence no fraud is shown to have been committed or attempted. Assuming that the statement might have been shown to have been in some respects untrue, there is no evidence nor offer to show that any increase or renewal of credit was given or applied for on the strength of it. This leaves the case quite outside the lines of the rule as stated by any of the authorities. Cary v. Hotailing, 1 Hill, 511; Hall v. Naylor, 18 N. Y., 588; Miller v. Barber, 66 id., 558. The rule which admits evidence of one fraud to prv^e another is at best so exceptional in' its character, that although well established it will not be extended beyond the limits already assigned to it. The case of Hall v. Naylor, supra, which is cited by counsel for the plaintiff, turns upon the point here made, and the evidence was rejected, because it did not appear that in the case to which the evidence related a fraud was actually accomplished.

The other exception relates to an offer of the plaintiff to give evidence of the total assets of the debtor company at the time of the failure in December, 1890. The ruling seems to us to have been correct, on the ground that the time was too remote from the date of the contract assailed without the accompanying offer to trace back the transactions of the company so as to show the amount of its assets at the date of the sale. We think, too, that the ruling may be sustained on the ground that the matter of the offer was already in proof by evidence as definite, so far as appears, ■ as any which could have been produced under the offer.

We find no error committed in the admission or rejection of evidence, and we are clearly of the opinion that upon the evidence as received a case was not made which would have justified a finding that the machines in question were purchased with the intent to cheat the plaintiff out of the price.

The motion for a new trial should be denied.

Motion for a new trial denied and judgment ordered for the défendants on the nonsuit.

Macomber and Lewis, JJ., concur.


text:
    Sidney B. Roby, App’lt, v. Thomas J. Reynolds, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed October 21, 1892.)

    Sale—Waiver of damages for delay m delivery of goods.
    In an action to recover the agreed price of harness sold by plaintiff to-defendant, the answer admitted the sale and delivery, but set up as a counterclaim damages by reason of delay in their delivery. It appeared that when the goods were completed defendant declined to examine them for lack of time and directed them sent to him, and afterwards sent his check for the price of the goods, less a small deduction for some parts claimed, he missing. Feld, that this evidence showed a waiver of any claim for delay, and that the court erred in submitting the question of counterclaim to the jury.
    Appeal by the plaintiff from a judgment of the county court-of Monroe county, entered on the verdict of a jury, and from an order denying plaintiff’s motion for a new trial on the minutes^ of the court.

      E. Van Voorhis, for app’lt; E. A. Nash, for resp’t.
   Dwight, P. J.

The action was to recover thé sum of $160, being the agreed price of five sets of double harness sold and delivered by the plaintiff to the defendant. The answer admitted the sale and delivery of the harnesses and alleged, 1st, as a defense, a breach of warranty of the quality of the goods, and, 2d, as a counterclaim, damages by reason of delay in the delivery of the goods.

The evidence showed that, some months before, the defendant had bought of thé plaintiff one set of double harness made at Clyde, and that the bargain in this case was for five sets of similar harness to be made at the same place. There was evidence on the part of the defendant which tended to show that it was warranted by the plaintiff that the harness should be in all respects like the former set, and of number one oak tanned leatheralso that the plaintiff was informed, at the time, that the harnesses were to be used in the business of lumbering in Pennsylvania, on a lot of horses which the defendant had bought in Canada, and which would be delivered in one week from that time, and that the plaintiff agreed that the harnesses should be delivered in one week. The counterclaim was for damages by reason of a delay of seven days or more in the delivery of the harnesses after the horses had arrived. Evidence was received, under the objection of the plaintiff, tending to show that the work of five men and teams, rendered idle for want of the harnesses, was worth twenty dollars a day, and this evidence was submitted to the jury under the exception of the plaintiff, as possible ground of a counterclaim of $140, viz.: twenty dollars a day for seven days, and this was the amount of the counterclaim allowed by the jury. The verdict was for the plaintiff for twenty dollars, and the defendant had judgment for the balance of his costs, after deducting that sum.

We think the learned county court erred in submitting the counterclaim to the jury under the evidence in the case as to what took place at the time the harnesses were accepted by the defendant. That acceptance, it is true, was qualified in respect to the quality of the goods, but was without any qualification in respect to the time of their delivery. As was to have been expected, the evidence was directly conflicting on the question of the time when the harnesses were to be completed and delivered, but the undisputed evidence is that after they were completed, and the defendant notified, he went personally to the store of the plaintiff, where the harnesses were exhibited to him in the boxes in which they had come, and he was invited to inspect them. This, he himself testifies, he declined to do, as by doing so he would lose a train which he wished to take, but consented that the harnesses should be shipped as they were, if the plaintiff’s salesman would warrant them in every respect. He testifies “ He, the salesman, said he would warrant them to be A No. 1 oak tanned leather; if not, they would make them good or take them hack, and I said to have them shipped.” Here was, so far as the time of delivery was concerned, an absolute and unqualified acceptance of the harnesses, without any complaint of delay, or intimation that such cause of complaint existed; and it is shown by further undisputed evidence, that the defendant afterwards sent to the plaintiff his check for the price of the harnesses, less only a small deduction for some straps, or parts which were said to be missing. We think this evidence shows a waiver of any ■claim for delay. If any such claim existed, the grounds of it were fully known to the defendant at the time, and so far as appears were entirely unknown to the plaintiff. It was the duty of the -defendant, then, to make it known to the plaintiff, if he intended to rely upon it. It is not to be supposed that the plaintiff would have parted with the property if he had had reason to suppose that the defendant was to make a claim thereafter for nearly the entire price of the goods for previous delay in their delivery. We think the acceptance of the goods at the time shown by the evidence, without complaint or suggestion of any violation of the contract in respect to the time of delivery, was a waiver of such ground of complaint if any then existed; and the subsequent offer of payment, in the regular course of business, without mention of any such drawback, was an apparent admission either that no such ground o£ complaint existed, or that it had been conclusively ■ waived.

For the error involved in the submission of this cause of counterclaim to the jury upon the evidence as it stood, the judgment should be reversed and a new trial granted.

Judgment and order of Monroe county court appealed from reversed, and a new trial granted, with costs to abide the event Macomber and Lewis, JJ., concur.


author: Macomber, J.

text:
    Brackett H. Clark, Resp’t, v. The Lake Avenue Permanent Savings & Loan Association, Impleaded, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed October 21, 1892.)

    1. Bills and notes—Negotiable instrument.
    In an action by the transferee on the following instrument: “ The Lake Avenue Permanent Savings & Loan Association, Rochester, N. Y., September 3, 1890. Mr. Z., Treas. Pay to the order of F. sixteen hundred and fifty-one dollars for S. loan. Signed, A. Prest., McK. Sec’y.” (countersigned) “ Correct F.”, Held, that the instrument was an accepted draft and negotiable.
    2. Same—Time oe payment—Interest.
    No time of payment being specified, such draft was due immediately upon delivery and bears interest from that time.
    Appeal by the defendant, The Lake Avenue Permanent Savings & Loan Association, from a judgment of the county court, entered on the 25th day of March, 1892.
    The- action was upon the following instrument:
    “ The Lake Avenue Permanent Savings & Loan Association, Rochester, N. Y., September 3, 1890.
    “ Mr. F. W. Zollar, Treas. Pay to the order of D. C. Feeley, sixteen hundred and fifty-one and fifty hundredths dollars, for William Shay loan (1,651.50.)
    “(Signed) J. A. Ashton, Pres’t
    “J. E. McKelvey, Secretary.”
    Countersigned, “ Correct, D. C. Feeley.”
    This instrument was, by endorsement, transferred by D., C. Feeley to William Shay, and by the latter to the plaintiff, who took the same in good faith. The action was begun in the municipal court of the city of Rochester, where by default a recovery was had of the balance unpaid upon the ihstrument of $351.50, besides costs. The defendant appealed to the county court for a new trial, which was there had before the county judge without a jury, and resulted in- findings by him to the effect that the sum of $417.51 was due and unpaid upon the instrument and directed judgment for the plaintiff accordingly.

      D. C. Feeley, for app’lt; Myron T. Bly, for resp’t.
   Macomber, J.

We think this was an accepted draft and transferable by endorsement and delivery to the plaintiff. It falls exactly within the definition given by Daniel on negotiable Instruments, vol. 1,. page 38 ; for it was the direction to Mr. Zollar, the treasurer of the company, to pay absolutely and at all events the sum of $1,651.50 to a third person named therein (Mr. Feeley), or to any other person to whom Mr. Feeley might order it to be paid. It is shown, however, that D. C. Feeley was the attorney of the association, and from this fact it is argued that the instrument was issued conditionally, and subject to the conditions con-tamed in the articles' of association of the defendant, of which William Shay was a member. That provision of the articles of association is as follows : “ Every shareholder shall be entitled to a loan of $105 for each share held by him or her when there is sufficient money in the treasury, and the security offered is satisfactory to the board of directors.” But the plaintiff was not in any way associated with the company and was not bound by any of its by-laws. Shay, as a member of the association, had effected the loan by mortgage which had been approved by the society ; and this bill of exchange was by him turned out to the plaintiff in part for money loaned to him by the plaintiff, being a balance of the unpaid purchase money for the mortgaged premises. The instrument was one of those referred to by Tiedeman on Commercial Paper, page 211, § 128, and may, according to that author, be treated as negotiable, either as an accepted bill or promissory note. This is the view taken by the courts in the cases of Bull v. Sims, 23 N. Y., 570, and Kelley v. The Mayor, etc., 4 Hill, 263, and Fairchild v. Ogdensburgh Railroad, 15 N. Y., 337.

It is further urged upon our attention- that the instrument does not bear interest. In this, also, we are constrained to differ from the learned counsel for the defendant. Ho time of payment being made, it was due immediately upon delivery, and interest may be reckoned from that time. Chester v. Jumel, 125 N. Y., 254;. 35 St. Rep., 4, and cases there cited.

We think the disposition made of the case by the learned county judge was in all respects correct, and it follows that his judgment must be affirmed.

Judgment of the county court of Monroe county appealed from affirmed, with costs.

Dwight, P. J., and Lewis, J., concur.


text:
    Louis Knell et al., Resp’ts, v. William Stephan et al., App”lts.

      (Supreme Court, General Term, Fifth Department,

      Filed October 21, 1892.)
    Evidence—Objection—Wheu too late.
    It is too late, upon the argument of an appeal, to object to the insufficiency of evidence which was received without objection and treated throughout the trial as establishing an essential fact in the case.
    Appeal from a judgment in favor of the plaintiffs entered in Cattaraugus county on the report of a referee.

      William H. Henderson, for app’lts ; C. S. Carey, for resp’ts.
   Dwight, P. J.

The action was in the .nature of a creditor’s bill to reach the interest of William Stephan, the judgment debtor, in lands and their avails alleged to have been conveyed and turned over to his wife,- the defendant Mary Stephan, in fraud of creditors of the former. <-

The defendants object, on this appeal, that the proper foundation for a creditor’s bill was not laid by proof of a judgment and execution returned unsatisfied. Ho such objection was Specifically made at atiy time on the trial. There is in the record before us of the evidence taken on the trial an abstract of the judgment and execution alleged in the complaint, including date of the recovery and docketing of the judgment in Erie county, and of its docketing in Cattaraugus county, where the land was situated ; also of the issue of an execution to the sheriff of the latter county and of its return unsatisfied. This evidence was not objected to, nor was the objection made at any time that there was not competent and sufficient proof of judgment recovered and ■execution to the proper county returned unsatisfied before the commencement of the action.

There was a motion for a dismissal of the complaint at the close of the plaintiff’s case, but the objection above mentioned was not specified, nor was it included in any ground of the motion as made, except the statement that “ the plaintiffs have failed to prove a cause of action.” The objection was not sufficient.' The evidence in question, though informal, was evidently received and treated as sufficient, and as establishing without dispute the facts to which it related. The referee found those facts in accordance with the evidence so received, and there was not even an exception by the defendants to such finding, which upon the theory of the objection now made was without any evidence to support it, and, therefore, subject to exception. Code Civ. Pro., §§ 992, 993.' It is too late, upon the argument of this appeal, to object to the insufficiency of evidence which was received without objection and treated throughout the trial as establishing an essential fact in the case.

Other material facts in the case were found upon evidence mainly circumstantial, and consisting largely of inferences drawn from the testimony of the defendants themselves, which yet was sufficient to satisfy the mind of an astute and careful referee, and which, we are bound to say, was well calculated to produce that effect. The findings of fact in this case cannot be disturbed as unsupported by the evidence, and the conclusions of law and directions for judgment are in accordance with the facts found.

The judgment should be affirmed.

Judgment appealed from affirmed, with costs.

Macomber and Lewis, JJ., concur.


text:
    Mary J. Clancey et al., Resp’ts, v. George R. Losey et al., App’lts.

      (Supreme Court, General Term, Fifth Department,

      Filed October 21, 1892.)

    1. Evidence—Market value of loan of credit.
    The admission of testimony of market value, or reasonable value, of a loan of credit is error, but, when its admission is not only not to the prejudice of appellants, but to their advantage, it is not a ground for reversal of a judgment.

      2. Counterclaim—Action on former—No mention in stipulation of DISCONTINUANCE.
    Where in an action on a claim set up as a counterclaim in a former action which had been discontinued by stipulation, it appeared that the parties were not entirely the same, and no mention was made of the claim in such stipulation and no agreement as to the same was shown. Held, that the action was properly brought.

      Appeal from a judgment of the county court of Monroe county, entered on the verdict of a jury; and from an order denying the defendants’ motion for a new trial on the minutes of the court.

      H. B. Halloch, for app’lts; J. A. Garloch, for resp’ts.
   Dwight, P. J.

The action was to recover the sum of $600,. alleged to have been wrongfully retained and withheld by the defendants out of the avails of a loan negotiated by them for the plaintiffs. The answer averred a special contract of the plaintiffs to pay the defendants the sum of $600 for their services in negotiating the loan of $4,300 for three months, and for endorsing the: plaintiffs’ note therefor. The two defendants did endorse the note, and procured the endorsement of a third person, and the-discount of the note at bank, and the defendants kept back the $600. As security to the endorsers, the plaintiffs executed to the-three a mortgage on real estate in Rochester, of large value, but subject to prior incumbrances. The note not being paid at the end of the three months, the mortgagees- promptly• proceeded to-bring an action of foreclosure, and the mortgagors, the plaintiffs herein, set up, among other matters, by way of defense, a- counterclaim against the two defendants herein for the $600 wrongfully retained by them. That action was discontinued, by stipulation of the parties, under an arrangement by which a brother of the plaintiffs here took title to the property, and negotiated a new loan, out of the avails of which he paid off the mortgage in suit, and all other liens on the property.

On the trial evidence was received against the defendants’ objection for the purpose of showing a market value or usual price of such services as those of the defendants, including their endorsement, and what such services and endorsement were reasonably worth. The jury rendered a verdict for the plaintiffs for $271.20.

The foregoing statement presents the two questions which arise-on this appeal; neither of which, we think, affords ground for a reversal of the judgment appealed from.

The admission of testimony of market value or reasonable value of a loan of credit was no doubt error, Perrine v. Hotchkiss, 58 Barb., 77, but it was not only not to the prejudice of the defendants, but to their advantage. The jury refused to belive the testimony of the defendants as to the existence of the special contract for $600, and, therefore, under the doctrine of the case cited, they could have recovered nothing beyond the statutory brokerage, at the rate of one-half of one per cent per annum on the amount of the loan. It was only on the theory of a quantum, meruit that the jury could have allowed to them the substantial compensation of about-$250 for their services and endorsement, and thus the admission of the evidence in question was clearly not to their prejudice.

The other objection to the judgment which was raised by a. motion for the direction of a verdict, viz.: that the cause of action of the plaintiffs was settled and discharged by their consent to a discontinuation of the foreclosure action against them, is equally unavailing to the defendants. The two actions were not between, the same parties. Thd foreclosure action was brought by the three mortgagees, and the counterclaim attempted be set up by the plaintiffs here, as defendants in that action, existed only against two of those plaintiffs and was not properly pleaded and could not have been properly allowed as a counterclaim therein. There was in the stipulation for a ■ discontinuance of the action, no reference to the attempted counterclaim, nor was it, so far as-the evidence shows, mentioned or considered in the negotiations-which led-to the discontinuance.

We find nothing in the case which indicates that there was any agreement between the parties that the plaintiffs’ claim in this action should be discharged in the settlement of the action of foreclosure ; and certainly there was nothing in the settlement itself which necessitated that result.

There seems to have been no error committed on the trial of this case of which the defendants have the right to complain, and the judgment and order denying motion for a new trial must be-affirmed.

Judgment and order of the county court of Monroe county appealed from affirmed, with costs.

Macomber and Lewis, JJ., concur.


text:
    Edward W. Johnson, Resp’t, v. Elizabeth B. Strong et al., App’lts.

      (Supreme Court, General Term, Fifth Department,

      Filed October 21, 1892.)

    1. Mortgage — Priority of lien over land contract—Constructive. NOTICE BY POSSESSION.
    L. entered into a contract for the sale of lands with P., who went into possession. L. assigned his interest in such contract to B., and thereafter gave to S. a mortgage on the same premises. Before taking the mortgage 8. made inquiries of L. as to the possession of P.; learned of the contract hut not of its assignment, and was informed that it had been abandoned by P. Held, that the possession of P. was notice of the contract but not of its assignment, and that the lien of the mortgage of S. had precedence of the interest of the assignee of the contract.
    2. Judgment—Lien of—Priority.
    In such case, B. assigned his interest in the contract to Y., W. having in. the meantime recovered and docketed a judgment against L., Held, that the judgment, although recovered prior to the assignment to Y., was subject to B.’s interest, and as all that interest passed to Y., was subject to-that of Y.
    Appeal by the-defendants, Mrs. Strong and the Westons, from a judgment entered in Cattaraugus county, on the report of a referee.

      J. H. Waring, for app’lts ; C. S. Cary, for resp’t.
   Dwight, P. J.

The action was by an assignee of the vendors in an executory contract for the sale of lands, to foreclose the equity of redemption of the purchaser, for non-payment of the-purchase price. The vendors were the defendants Lewis, the purchaser was the defendant Pierce, and the contract was entered into in October, 1889, at which time Pierce went into possession, and so continued until October, 1890. In June, 1890, the Lewises assigned all their interest in the contract to the Exchange National Bank of Olean. In August, 1890, the Lewises gave to the ■defendant, Mrs. Strong, a mortgage on the same premises to se-cure the payment of money at that time loaned to them by her. Before taking the mortgage, Mrs. Strong, by her agent, making •inquiries of her mortgagors, in respect to the possession of Pierce, learned of the existence of the contract, but not of its assignment to the bank, and was informed by the Lewises that it had been abandoned by Pierce; and she took her mortgage in the belief that the mortgagors’ title was clear of incumbrance. The contract was in fact abandoned by Pierce in October, before any rights of the plaintiff had intervened; and no inquiry of Pierce would have elicited information of the assignment of the contract, because he was himself ignorant of the fact The Lewises resumed possession of the property in October, and have ever since held it by their tenants. Two months later the bank assigned its interest in the contract to the plaintiff, the defendant Weston having in the meantime recovered and docketed a judgment in the proper county against the Lewises.

The facts above stated are taken from the findings of the referee, and upon them he bases a conclusion of law to the effect that the lien of the plaintiff under his assignment of the contract of sale is superior to that of Mrs. Strong under her mortgage, as well as to that of the Westons under their judgment.

The former branch of this conclusion was clearly error. It is based, as appears from the opinion of the referee, upon the proposition, not found ás a conclusion of law, that the possession of the purchaser in the contract, at the time the mortgage was given, was notice to Mrs. Strong of the existence of the contract not only, but also of its assignment to the bank and of its rights' thereunder. We regard the proposition as entirely untenable. The possession of Pierce was notice of the contract under which he held and of all his rights thereunder. It was not notice of the assignment of the contract nor of the rights of any party who was not in possession. The rule is that the possession in a third party is notice to the grantee of all -the rights of the party in possession ¡so far as diligent inquiry suggested by such possession would dis■close them. There was nothing in the possession by the purchaser in the contract to suggest that the contract bad been assigned by "the vendors, moreover the information actually derived by inquiry from the vendors virtually negatived the idea of an assignment by them, and information of the assignment could not have been obtained by any inquiry of Pierce.

None of the authorities cited by counsel for either party on this appeal carry the doctrine of constructive notice by possession beyond that stated above. Tuttle v. Jackson, 6 Wend., 213 ; Page v. Waring, 76 N. Y., 463; Moyer v. Hinman, 13 id., 184; Ellis w. Horrman, 90 id., 466.

We have no doubt that the lien of the mortgage of Mrs. Strong has precedence to the interest of the assignee of the contract of sale.

On the other hand, the judgment of the Westons, although recovered before the assignment to the plaintiff, was subject to the interest of the plaintiff’s assignor and all that interest passed to the plaintiff by the second assignment.

Upon the evidence as it now stands the judgment might perhaps be modified so as to give effect to the equities of all parties, but as there may be additional evidence on another trial, the judgment should be reversed, and a new trial granted.

Judgment reversed and a new trial granted, with costs to abide. the final award of costs.

Macomber and Lewis, JJ., concur.


author: Lewis, J.

text:
    William Wolfe, App’lt, v. Christine Benedict, Resp’t.

      (Supreme Court, General. Term, Fifth Department,

      Filed October 21, 1892.)

    Principal and agent—Husband and wipe.
    Authority of a husband, who lives with and supports his family, to make a contract as agent for his wife for work-to be done upon her property, is not made out by proof of statements by the husband that he ha<$ such authority.
    Appeal from the judgment of the Miagara county court, reversing a judgment of a justice of the peace.

      Charles Hickey, for app’lt; N. T. Potter, for resp’t.
   Lewis, J.

This action was brought to recover compensation for labor performed by the plaintiff,- in and about the dwelling house and premises occupied by Mr. Benedict with his wife; the defendant, Mrs. Benedict, being the owner of the house-arid premises.

The plaintiff claimed that he was employed to work for the-defendant by her husband, and that the husband was defendant’s agent and authorized to thus employ him.

Plaintiff relied solely upon the statement of Mr. Benedict when he employed plaintiff, that he was Mrs. Benedict’s agent and authorized to employ the plaintiff, to prove the employment.

Both Mr. and Mrs. Benedict testified that they resided upon the premises as a family, and that Mr. Benedict had no authority to employ the plaintiff to work for Mrs. Benedict.

The proof was that Mr. Benedict provided for and supported the family.

Mr. Benedict’s declaration that he was agent for defendant, if made, proved nothing toward making a case.

The plaintiff failed to make a case against the defendant.

The judgment appealed from should be affirmed, with costs.

Dwight, P. J., and Macomber, J., concur


text:
    Chauncey Witcher, App’lt, v. The Holland Water Works Co., Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed October 21, 1892.)

    1. Villages—Right op water company to lay pipes in street.
    The laying of pipes for the supplying of water to cities and villages may be for a public use or purpose even where no contract has been made with the municipality to supply it with the water.
    3. Same.
    A street of an unincorporated village is subject to use for the purpose of ' supplying water to the' inhabitants of the village, and the placing of pipes in it by a water company, with the consent of the town authorities, does not impose an additional burden upon the fee. ■
    Appeal from a judgment dismissing the complaint upon the merits, entered upon a verdict rendered by direction of the court upon the trial at the Erie circuit, and from an order denying a motion made on a case and exceptions for a new trial.

      Frank C. Laughlin, for app’lt; Wallace Thayer, for resp’t.
   Lewis, J.

This is an action of ejectment to recover the possession, subject .to the public easement, of a part of the highway in the village of Holland, Erie county, the fee thereto being .in the plaintiff, and to compel the removal of certain water pipes and a hydrant from the street.

The defendant is a corporation organized under, chapter 737 of the Laws of 1873, and the acts amendatory thereof, for the purpose •of supplying water to the inhabitants of the village and town of Holland for culinary and drinking purposes, and for the extinguishment of fires, etc.

lifts a stock company, the stock being owned by private individuals. Water is brought from springs into the village through ■pipes laid underground. Hydrants have been placed by the defendant along the principal street of the village, and so located as to be .■accessible for use in case of fire. The supply and head of water •are ample for the purposes mentioned. The village' is unincorporated, but has a population of 600, having 174 buildings exclu.-sive of barns. The buildings are mainly located upon one street within a distance of about three-quarters of a mile. There are streets crossing the main street occupied by dwellings for a distance of about five-eighths of a mile. The average distance between the buildings on the main street is about thirty feet.

Written consent to lay its water pipes in the town of Holland was obtained of the officials of the town, and was properly filed before laying the pipes. Without the consent of the plaintiff the ■defendant dug trenches in the street in front of his house, placing three pipes therein, and erected a hydrant in front of his premises. The plaintiff’s premises are upon the main stréet in the center of the village. He owns the fee of the street. Near to bis dwellings are houses, stores and other buildings. ■ Defendant had at the time of the trial contracted to furnish water to fifty-two residences and places of business in the village, and had Actually supplied eleven houses with water, but it had not entered into any contract with the town authorities to supply the village with water.

The defendant is required, by § 81 of chapter 566 of the Laws of 1890, to furnish water at reasonable rates to all consumers who may wish to use the same. If the village to be supplied with water be incorporated, its board of trustees has power to contract with the company for the delivery of water to the village through hydrants or otherwise. No express authority is given by the act to the town authorities to make contracts for supplying water to the inhabitants of the town. The village of Holland being unincorporated, it must be treated as a part of the town of Holland. Section 82 of the act gives to incorporated water companies the power to lay and maintain their pipes and place hydrants for delivering and distributing water in any street, highway or public place of any town or village, when it has obtained the permit to lay its pipes in the highways as required by § 80 of the act.

The act of 1890 took effect on the first day of May, 1891. The pipes were laid in front of the plaintiff’s premises in November, 1891.

A verdict was directed in defendant’s favor, and was, therefore, in effect a decision that the plaintiff was not entitled to recover upon any finding warranted by the testimony. Stone v. Flower, 47 N. Y., 566.

The plaintiff asked to go to the jury upon the question whether the laying of the pipes and the placing of the hydrant in the street in front of plaintiff's premises was an additional burden on the fee. The motion was denied.

The right of defendant to lay the pipes, etc., without making compensation is a question of law. Whether the use was a public one, or private property was taken, are judicial questions. Are these pipes, hydrants and water devoted to a public use? As we have seen, they are not at present in actual use under any contract with the authorities of the town, but only by individual residents of the village who have made contracts with the company. The company is required to furnish water to any of the inhabitants on the line of its pipes who desire to use the water. The hydrants are erected to furnish water for fire purposes. At the time of the fire there was no hose, or fire apparatus, nor fire company in the town, but the hydrants were so placed that they could be used advantageously for extinguishing fires. And it appeared from the testimony that the inhabitants were at liberty to use them for such purpose.

. Holland, though not incorporated,- is a large and populous village. The inhabitants thereof have all the requirements and necessities for the use of pure and wholesome water that they would ■ have were the village incorporated.

The streets of a populous village, or city, are subject to greater burdens and to a greater variety of uses than a rural highway. The extent of an easement in a street is to be measured somewhat by the necessities of the public. Johnson v. Thompson-Houston Electric Co., 54 Hun, 470 ; 28 St. Rep., 295. In Lahr v. Metropolitan Elevated R. Co., 104 N. Y., 292 ; 4 St. Rep., 340, Ruger, Ch. J., said: “ Statutes relating to public streets, which attempt to authorize their use for additional street uses, are obviously within the power of the legislature to enact.”

The act of 1890 confers the power upon water companies, after-having obtained the consent of the proper authorities, to use the streets and highways for the distribution of water to the public.

If Holland were an incorporated village, and the defendant had entered into a contract with the trustees to supply the village with water for fire or other purposes, the right of the defendant to use-the streets with its pipes without compensation to the owners of the fee would not be questioned. 'The village being unincorporated, such a contract could not be made, but the necessities of the people for water are the same as they would be if the village were incorporated. Six hundred people have their homes in the village, and the evidence tends to show that many of them desire to avail themselves of .the use of the water furnished by the defendant. That being so, is not the defendant furnishing water for the use of the public ?

It was said by Mr. Justice Haight, speaking for the court of appeals in the case of Pocantico Water Works Company v. Bird, 130 N. Y., 249, 258; 41 St. Rep., 315: ‘The question of public-use is a judicial ,one and must be determined by the courts. It is not affected by the agency employed, for it may be vested in private persons, who may be actuated solely by motives of private gain if the use to be made thereof is for the benefit óf the public. * * * It is doubtless true that in order to make the use-public a duty must devolve upon the persons or corporation holding the property to furnish the public with the use intended. The term implies ‘ the use of many,’ or ' by the public,’ but it may be limited to the inhabitants of a small or restricted locality, but the use must be in common and not for a particular individual.”

It was decided in St. Helena Water Co. v. Forbes, 62 Cal., 182, that the supplying of the inhabitants of a town with pure, freshwater is for a public use. To supply a city or town with water is a public purpose for a public benefit. Olmsted v. Morris Aqueduct, 46 N. J. Law, 495, 499; Bloomfield Gas Light Company v. Richardson, 63 Barb., 437. The use of water by each particular individual is private; but in a larger and broader sense it may be said that the use of it by all, or a large part of the residents in a populous village, is for the public benefit.

It must be held, we think, that the laying of pipes for the supplying of water to cities and villages may be for a public use or purpose even where no contract has been made with the municipality to supply it -with the water. Assuming then that the-supply of this water was for a public use, did the laying of the pipes and the erection of the hydrant in front of plaintiff’s premises constitute a taking of his property right in the soil and amount to an additional burden upon the fee? There are many authorities holding that such use of a street in incorporated villages does not impose an additional burden upon the fee. Thig street in question must be held, we think, to be an urban street and not an ordinary rural highway.

This case is distinguishable from the cases which hold that the appropriation of a rural highway for the conveying of water to another town or village, the inhabitants along the line of the pipes not being entitled to the use of the water, is imposing an additional burden, for that is the taking pf one’s property for the use of others, he having no right to the use thereof.

In the case at bar the plaintiff is entitled in common with all the other inhabitants of the village to the use of the water. The health and comfort of the people are promoted by the use of wholesome, pure water. The buildings and property of the village are, to a great extent, thereby protected from fires. This street must be held, we think, to be subject to use for the purpose of supplying water to the inhabitants of the village, and that the placing the pipes in it by defendant did not impose an additional burden upon the fee.

Defendant not having a contract with the authorities of a village to supply it with water cannot exercise the right of eminent domain. But its right to use the streets of this village for its pipes is based not upon its right to condemn property, but upon the doctrine applicable to the use of urban streets for such purposes.

The plaintiff failed to make a case entitling him to a verdict. The judgment and order appealed from should be affirmed.

Dwight, P. J., and Macomber, J., concur


text:
    John Preston, App’lt, v. Henry Smallwood, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed October 21, 1892.)

    Contract—Breach—Agreement to work earm on shares.
    The parties hereto entered into an oral agreement by which plaintiff was to work defendant's farm on shares for five years, but defendant refused to sign the agreement when reduced to writing. Plaintiff some months after taking possession learned that defendant was not satisfied with his management of the farm and inquired the cause of dissatisfaction. Defendant refused to give anything to induce him to leave, and told him he did not know enough to work the farm, and that he had better get off from it, and the sooner the better. Held, that this did not justify plaintiff’s leaving the farm; that he should have remained and performed' his part of the agreement, and that he had no right of action for breach of the contract as an executory one.
    Appeal from a judgment entered in the county of Chautauqua upon an order of the county court of that county non-suiting the plaintiff. No motion for a new trial was made.

      S. W. Mason, for app’lt; A. B. Ottoway, for resp’t.
   Lewis, J.

This action was brought to recover damages for breach of contract.

The parties entered into an oral agreement in the month of February, 1891, for the leasing of the defendant’s farm to the plaintiff for the term of five years to be worked upon shares, each, party to have one-half of the proceeds of the land and stock or the farm. It was understood that the agreement was'to be put in writing, but that was never done. The plaintiff took possession of the farm in March, 1891, the defendant reserving the right to occupy two rooms in the farm house. The plaintiff heard rumors that the defendant was not satisfied with his management of the farm, and in the month of August, 1891, he called upon the defendant and inquired of him as to the cause of his dissatisfaction. The defendant told him he could not work the farm; and what-occurred between the parties which the plaintiff claims justified him in leaving the farm and abandoning the contract, was testified to by him as follows :

“I (meaning plaintiff) said if you are 'dissatisfied with me on this farm what will you give me to get off from here; he said, I won’t give you a cent. He said, what will you give me for damages for coming on here ? He said, if you were worth anything I would sue you and collect damages of you. Then I asked him what share of the crops he would give me, and he said I had not got any crops there. He said the sooner you get off from the farm the better it will be for you and me both. He said you cannot get off any too quick to suit me. He said that he had done all the work that was done there all summer. As long as he had told me to get off from the farm I moved off. Mr. Smallwood told me at the time we had the conversation in the barn in August that I couldn’t work the farm, that I had better get off from it. He said that I did not know enough to work the farm. He toldi me to get off from the fárm, and said that I could not work it.”

The plaintiff caused the agreement for leasing the farm to be put in writing and requested defendant to execute it, and he refused.

The county court held, and we think correctly, that what occurred, as testified to by plaintiff, did not justify him in abandoning the farm. Mortimer v. Brunner, 6 Bosw., 659; Ogilvie v. Hull, 5 Hill, 52; Edgerton v. Page, 20 N. Y., 281; Code of Civ. Pro., § 1515.

The plaintiff should, notwithstanding the dissatisfaction of the defendant, have remained in possession of the farm and performed' his part of the agreement; instead of so doing he abandoned the premises and neglected to perform on his part, and therefore he-cannot recover of the defendant for his interest in the crops. Graves v. White, 87 N. Y., 463; Kiplinger v. Green, 28 N. W. Rep., 121; 61 Mich., 340 ; Reynolds v. Reynolds, 48 Hun, 142 ; 15 St. Rep., 464.

Plaintiff had no right of action for breach of the contract' as an executory one. English v. Marvin, 55 Hun, 47; 28 St. Rep., 68.

We find no errors in the rulings of the trial court.

The nonsuit was proper and the judgment appealed from should he affirmed.

Dwight, P. J. and Macomber, J., concur.


text:
    Sidney B. Roby, Pl’ff, v. The New York Central & Hudson River Railroad Co., Def't.

      (Supreme Court, General Term, Fifth Department,

      Filed October 21, 1892.)

    Eminent domain—Abandonment.
    A strip of plaintiff’s land was taken by defendant’s predecessor.for use as a railroad, and was so used by it and defendant. Thereafter defendant leased the same for a term of years to one Y. to be used as a coal yard, and raised the tracks upon a trestle for such use, and Y. built coal bins and sheds, completely shutting out the plaintiff and the public from such strip. The lease contained a reservation of the use of the track and trestle and strip for the purposes of a railroad. . Held, that notwithstanding such reservation the lease surrendered to Y. the use and occupation of the premises for the purposes of his private business and to the exclusion of the public; that the effect thereof was an abandonment of the land by defendant for the purposes of a railroad, and that plaintiff was entitled to possession freed from defendant’s easement.
    Motion for a new trial by the defendant on a case tried at the Monroe circuit in February, 1892, in which a verdict was directed for the plaintiff and the exceptions ordered to be heard at the general term in the first instance.
    The action was brought to recover possession of land in the city of Rochester.

      William Nath. Coggswell and William F. Coggswell, for pl’ff; Albert H. Harris, for def't.
   Lewis, J.

The plaintiff is the .owner of a piece of land in the •city of Rochester, on the southerly side of Hill street, 200 feet in width, and extending an equal width southerly for the distance of about 130 feet to the Erie canal. Before the plaintiff got title to the lot and prior to the 13th day of July, 1835, the Tonawanda Railroad Company, a corporation duly incorporated under the laws of the state of New York, by proceedings duly taken, acquired the right to appropriate a strip across the southerly end of this lot, twenty-five feet in width, for the use and purposes of a railroad and it took possession thereof and for many years used the same for railroad purposes.

The defendant has acquired all the rights of the Tonawanda •company subject to all its obligations and liabilities.

The eastern terminus of the Tonawanda company was in the city of Rochester. Its line of road passed across the twenty-five foot •strip aforesaid and terminated some 200 feet east of the easterly line of the plaintiff’s land, at the westerly side of Ford street, where the company constructed and maintained its passenger depot. After the road passed from the control of the Tonawanda •company the use of this depot was abandoned, and about $1,000 feet of the easterly end of the tracks of the old road, including the portion thereof extending across the plaintiff’s lot, was used as a .spur of the main tracks of the defendant’s road and was connected therewith at a point about 1,000 feet westerly of the eastern terminus of the old road. This spur was thereafter used by the defendant for the purposes of its freight traffic.

On the 27th day of April, 1889, the defendant executed and delivered to Arthur Gr. Yates, of Rochester, a written lease for the term of fifteen years of its right of way across the plaintiff’s land, including its rights and interests in that portion of its road lying easterly of the plaintiff’s property, which was formerly occupied for a depot. The grade of the railroad tracks upon the property thus leased was thereupon changed by elevating the same so-as to make room thereunder for coal bins and the strip of land across the plaintiff’s lot was covered by the lessee, Mr. Yates, with coal sheds and appliances for the transaction of his business as a coal dealer. He separated the strip of land across the plaintiff’s premises from the remainder of the plaintiff’s lot by constructing his buildings in such manner that there were no means of access by the occupant of plaintiff’s lot to the right of way aforesaid and thereby effectually excluded the plaintiff and the public from that portion of the defendant’s road leased as aforesaid. Mr. Yates devoted the leased property exclusively to his own use for the purpose of a trestle and coal yard, etc., for the receiving and handling of his coal.

It is provided in the lease that the premises are let and are to-be used by the tenant for the following purposes only: A coal-yard and trestle for the purpose of receiving and handling coal over the railroad of the party of the first part. The lessor reserves the right to terminate the lease and the term granted, at. any time, upon giving six months notice in writing to the tenant of such intention; and the lease and term thereupon are to cease-, upon condition that the landlord pay to the lessee what the tenant may have expended in alterations and repairs, not exeeedingthe sum of ten thousand dollars. The lessor agrees to furnish the ties and iron rails necessary- for the use of the tenant’s trestles, lay the tracks, and keep them in repair; all other constructions and repairs are to be made and done by the tenant. The tenant covenants and agrees not to assign the lease or under-let the premises, and covenants and agrees that they shall be used only for the-purposes of receiving and handling his coal over the railroad of the defendant.

The following clause is in the lease: “ It is mutually understood and agreed that the party of the first part reserves from this-lease the use and control of the said track and trestle for all the purposes of a railroad, together with the strip of land twenty-five feet in width adjoining the Erie canal, acquired for the purposes-of said railroad.”

The lease further provides for the extension and continuation, of the term thereof by consent of the landlord. The tenant covenants to pay an annual rental of one thousand dollars.

Prior to the giving of thelease to Mr. Yates, the occupants of the plaintiff’s lot had enjoyed railroad facilities with the defendant’s road, including the part thereof leased to Yates. After the lease, a continuance of such facilities was refused by the defendant unless the consent of Mr. Yates was first obtained.

At the close of the evidence, each party requested the direction of a verdict in their behalf respectively.

The plaintiff’s motion was granted, and the defendant’s ex■ceptions were ordered to be heard at the general term in the first instance.

Notwithstanding the reservation clause above quoted, the lease to all intents and purposes surrendered the use and occupation of the premises to Mr. Yates for the purposes of his private business and to the exclusion of the public. While the lease provides that the defendant shall own the ties and rails and keep them in repair, they are devoted to the exclusive use of the tenant’s business. Access to the track upon the premises leased is controlled by the tenant. He has enclosed the track with buildings. There are doors to the buildings which when closed prevent access thereto.

Lands can be condemned for railroad purposes only when they are needed for the use of the public either directly or indirectly; when thus acquired the public under proper restrictions and regulations have the right to their use. It is not necessary that the entire public should need to use the road, but the public must have a right to use it, and when the right of way is devoted exclusively to the use of a private individual and the public excluded therefrom it ceases to be used for public purposes. It is not a valid objection to the condemnation of a strip of land by a railroad corporation that the proposed premises may serve private, use, if in addition to serving such use it is also necessary for the successful and convenient operation of the main line of the railroad. A railroad company could not condemn land with the avowed purpose of leasing it after it is acquired as this was leased. If after acquiring lands for legitimate railroad purposes it could be leased and thereby devoted to the exclusive private use of individuals, railroad corporations might become dangerous instrumentalities in the business affairs of the country.

The evidence presented the question of fact to the trial court, whether there had been an abandonment by the defendant for the purposes of a public railroad of that portion of its road leased to Yates, and the conclusion was inevitable that it had abandoned it and that the plaintiff was entitled to the possession thereof as the ■owner in fee freed from the easement of the defendant therein. Mahon v. N. Y. C. & H. R. R. R. Co., 24 N. Y., 660 ; Heard v. The City of Brooklyn, 60 id., 242.

The defendant’s motion for a new trial should be denied, and judgment ordered for the plaintiff upon the verdict.

Dwight, P. J., and Macomber, J., concur.


text:
    George Walker, Resp’t, v. James M. Chilson, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed October 21, 1892.)

    Trial—Notice of—Failure to return when not served in the not A WAIVER OF REGULAR NOTICE.
    A notice of trial served by mail fourteen days before the sitting of the court is a nullity, and the retention thereof by the attorney on whom it is served is not a waiver of regular notice.

      Appeal from an order of the Monroe special term denying the. defendant’s motion for an order setting aside a judgment taken by' default at the Steuben circuit September 14, 1891.

      Milo M. Acker, for app’lt; A. M. Burrell, for resp’t.
   Lewis, J.

The action was ejectment.

The notice of trial upon which the plaintiff claimed the right to move the case was served on the defendant’s attorney by mail only fourteen days before the sitting of the court.

The notice was received by the defendant’s attorney and was not returned to the plaintiff’s attorney. The case was not noticed for trial by defendant. His attorney, being engaged at home on official business, on the first day of the court by a,telegram re- . quested another attorney to make application to the court to put the case over the term or to set it down for trial for the second week of the court.

The counsel making the motion stated as the ground for the motion the engagement at home of defendant’s counsel. .It does, not appear from the record that he knew of the defect in the notice of trial.

The application was denied and the case was tried when reached, as an inquest, in the absence of the defendant and his counsel.

The plaintiff’s counsel presented, when moving the case, the- notice of trial with his affidavit endorsed thereon, which stated, that he served a copy of the notice of trial on Jas. H. Clancy,, defendant’s attorney, by depositing the same in the post office at Canisteo, deponent’s post office address, duly and properly enveloped in a post paid wrapper and duly and properly directed to-said Clancy at Hornellsville, Steuben county, N. Y., his post office address.

The affidavit omitted to disclose to the court the information that the notice was not served in time to entitle him to move the. case for trial.

The order entered in the clerk’s minutes recites that due proof of service of notice of trial having been made and filed, .etc., an inquest was taken. .

Obviously the inquest was allowed under a misapprehension on the 'part of the court. Had the affidavit fully stated the facts as-to the service of the notice, the inquest would not have been, allowed.

If plaintiff’s counsel relied upon the .failure of defendant’s counsel to return the notice, he should have called the court’s attention in his affidavit to the facts, so that it could have been given its due weight in determining whether the inquest should be permitted.

The Code provides that a notice of trial, if served by mail, must be mailed sixteen days before the day of trial, including the-day of service. Either party who has served the notice may bring the issue to trial. Section 980, Code Civ. Pro.

The retention of the notice cannot be claimed to have misled plaintiff’s attorney. He was aware when he asked to be permitted to take the inquest of the defect in the notice.

The reason for the rule requiring the return of defective or irregular papers that are served is, that attention of the person, serving the paper may at once be called to the error, so that it. may be corrected.

Had this notice been returned, nothing could have been done to remedy the difficulty. This was not the case of an irregular notice. The notice was' a nullity; it was a void paper. The-plaintiff could not by serving such a paper impose upon the defendant even the very slight labor and expense of returning it. Had the plaintiff’s attorney taken any proceedings in the case relying in good faith upon the failure of the defendant to return the notice, he should have so stated in his affidavit opposing the-motion.

It was held in White v. Boice, 1 St. Rep., 570, by the general term, second department, that the retention of a notice of argument served on the 10th for the 14th of the same month was not a waiver of a regular notice.

Small v. Edrich, 5 Wend., 137, is to the same effect, though the case as reported fails to state whether the notice was retained. The cases to which our attention is called in the respondent’s brief hold that irregularities in papers served may be waived by retention of them; they do not go to the extent of holding that a failure to comply with a statutory requirement in the service of a notice is waived by retaining the papers.

The defendant made a case entitling him to the order asked. The order appealed from should be reversed, with ten dollars costs and disbursements of the appeal, and the motion to set aside the judgment should be granted, with ten dollars costs.

Dwight, P. J., and Macomber, J., concur.


text:
    Manly T. Sayles, Resp’t, v. Charles F. Hoetzel, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed October 21, 1892.)

    1. Malicious prosecution—Weight of evidence.
    In an action for malicious prosecution, the complaint and deposition ■ made by defendant to procure the plaintiff’s arrest is entitled to greater weight than testimony of the magistrate as to- what defendant stated when he applied for the warrant.
    2. Same—Probable cause. ¡¡

    In such an action there was evidence tending to show that defendant did not believe that plaintiff was guilty of stealing the articles lie took, but was aware that plaintiff claimed to own them, and that the object of the prosecution was to compel plaintiff to return the property. Beld, that the jury were warranted in finding a want of probable cause for the prosecution.
    3. Trial—Objections to evidence.
    Objections to the admission of evidence which fail to state the ground for the objection present no question for review.
    Appeal from a judgment of the supreme court, entered in the clerk’s office of Wayne county on the 20th day of November, 1889, and also from an order denying a motion for a new trial on the court’s minutes.

      S. K. Williams, for app’lt; E. D. Miller, for resp’t.
   Lewis, J.

This action was for malicious prosecution The defendant caused the arrest of the plaintiff for the crime of petit larceny. He presented to the magistrate when he applied for the warrant his own affidavit, in which he charged the plaintiff with •entering defendant’s barn in,,the village of .Newark on the 21st day of .March, 1889, and feloniously taking and carrying away several articles of personal property described in the affidavit, of the value of eight dollars, the property of the defendant. The •affidavit contains the statement “And that said Sayles was remonstrated with as to the taking thereof but would not refrain therefrom."

The magistrate, as he was required to do by § 148 of the Code of Criminal Procedure, took the defendant’s deposition in writing and caused it to be subscribed by him.

It is not claimed by the defendant’s counsel but that the deposition sufficiently charged the plaintiff with the commission of the srime of larceny, but his contention is, that the testimony of the magistrate upon the trial shows that the facts stated by the defendant to him when he applied for the wan-ant failed to make a •case for a warrant, and were not as full as those contained in the complaint and deposition. It may well be that the magistrate's recollection was at fault;, ceatainly the complaint and deposition drawn at the time and signed and verified by the defendant was better evidence of what occurred than the recollection of the magistrate, eight mouths after the occurrence. And further, the case shows that the defendant’s counsel conceded upon the trial, that the proceedings to obtain the warrant and proceedings under it were regular.

The defendant unquestionably was responsible for the arrest .-and prosecution of the plaintiff.

The case of Dennis v. Ryan, 65 N. Y., 406, to which our attention is called by the defendant’s counsel, is not an authority to the •contrary.

The facts developed upon the trial quite satisfactorily established that the defendant caused the prosecution of the plaintiff maliciously and without probable cause. He did not believe that the plaintiff was guilty of stealing the article he took from the barn of ,the defendant. He was fully aware when he made the complaint that plaintiff claimed to own the articles he took; there was ample evidence to justify the jury in so finding.

There was evidence tending quite strongly to show that the object of the prosecution on the part of the defendant was to compel the plaintiff to return the property to his possession.

The testimony, as is not uncommon in such cases, took a pretty wide range, some of it did not have much bearing upon the issues being tried.

Most of the defendant's objections failed to state any ground for the objection, and hence fail to present any question for review^

YYe do not find anything in the exceptions calling for a reversal of the judgment.

The charge of the court clearly and correctly stated the rules of law governing the case.

While we should be better satisfied had the verdict been for a less amount, we cannot say, under all the circumstances, that th& verdict for $1,000 is so excessive as to justify us in granting a new trial for that reason. \

The judgment and order appealed from should be affirmed.

Dwight, P. J., and Macomber, J., concur.


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    The People ex rel. William Carter, Supervisor, et al., Pl’ffs v. James L. Williams et al., State Assessors, et al., Def’ts.

      (Supreme Court, General Term, Fifth Department,

      Filed October 21, 1892.)

    Taxes—Equalization of assessments—Appeal to state assessors— Evidence.
    This proceeding was instituted to review a decision of the state assessors sustaining an appeal taken by the town of Geneseo from the equalization of the assessments of the county of Livingston, made by the board of supervisors of that county, and directing a certain sum to be levied upon all the other towns of the county except Geneseo, and such sum credited to the latter. Upon the hearing of the return to the writ of certiorari it appeared that before the state assessors two classes of evidence were adduced and mainly relied upon by the parties hereto, one known as the- “ sales list,” which is an abstract from the county clerk’s records, where they purport to show the true consideration of transfers of real estate, and the other the opinion of witnesses who were acquainted with the value of real estate throughout the county. Held, that the “ sales list” was competent evidence only because made so by the board of assessors themselves, and is not common law evidence, and that there being no such preponderance of evidence against the existence of the facts found as would warrant the setting aside of a verdict to the same effect, the decision of the board could not be disturbed.
    Certiorari to review the determination of the state assessors upon an appeal taken by the town of Geneseo from equalizations made by the board of supervisors of Livingston county in the year 1891.

      E. A. Nash, for pl’ffis; Strang & Doty and Hubbard & Coyne, for def’ts.
   Macomber, J.

This cause came "on for argument upon a return made by the state assessors to a writ of certiorari issued by the special term in Rochester, on the 21th day of November, 1891.

The supervisors of the town of Geneseo brought an appeal to the state board of assessors from the equalization of the assessment and correction of the assessment rolls of-the several towns-of the county of Livingston, as made by the board of supervisors in the year 1890. The matter was heard by the state assessors in June, 1891. Much evidence was taken before the state board upon such hearing, consisting of both oral and documentary evidence, all of which has been returned to this court. The state assessors made a decision and determination by which they held that eight of the towns of the county of Livingston had, by the board of supervisors, been equalized too high, and among them was the town of Geneseo, which was said to have been $121,750 too high. Seven towns of the county were held to have been assessed too low; while in two towns no finding upon the subject was made.

By reason of the unjust equalization of the town of Geneseo there has been paid into the county treasury by that town the sum of $690.81 more than its just proportion of the state and •county taxes for the year 1890. This sum was by the state board directed to be levied upon all of the tow: ns of Livingston •county, except the town of Greneseo, together with the costs and •disbursements of the9appeal taken from, the determination of the supervisors to the state board of assessors. Under the evidence returned to us, there can be little .doubt that the determination and decision of the state board of assessors was, in all respects, correct. It appears that there were two classes of evidence adduced before-the state board, and mainly relied upon by the parties •to this controversy, namely, one known as the “ sales list,” which is an abstract from the county clerk’s records, where they purport *o show the true consideration of transfers of real estate; and the •other, the opinion of witnesses who, to a greater or less extent, were acquainted with the value of real estate throughout the county.

.The evidence derived from the “sales list” was largely relied upon by the relator. This evidence was competent only because it was made so by the board of assessors themselves, and is not common law evidence. People ex rel. The Mayor v. McCarthy, 102 N. Y., 630; 2 St. Rep., 546; People ex rel. Schabacker v. State Assessors, 47 Hun, 451; 14 St. Rep., 309. But even by the “ sales list.” the equalization of the town of Greneseo was shown to be :somewhere from $22,333 to $36,000 too high; while the common law evidence, that is to say the opinion of men acquainted with the value of real estate in Livingston county, shows that its equalization was too high in sums ranging from three hundred thousand dollars downward. Considering all of the' testimony laid before them, the 'state assessors have reached a conclusion which ■seems to us to be warranted by the evidence. The case, therefore, inasmuch as it presented to the board of state assessors only a question of fact, is not difficult of solution under the rule laid-down for our guidance by statute. By the Code of Civil Procedure, § 2140, subdivision 5, we must confirm the determination unless we are able to say that, upon all of the evidence returned to us, there was such a preponderance of proof against the existence of any facts found by the state board that the verdict of a jury affirming the existence thereof would be set aside by the court as being against the weight of evidence. This we cannot do with a due regard to the proofs.

We think therefore, that the judgment and determination of the board of state assessors should be affirmed.

The determination and judgment of the state assessors confirmed, with costs.

Dwight, P. J., and Lewis, J., concur.


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    The Lake Shore & Michigan Southern R. R. Co., App’lt, v. The City of Dunkirk, Resp’t. The New York, Lake Erie & Western Railroad Co., Appl’t, v. The City of Dunkirk, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed October 21, 1892.)

    1. Railroads—Assessment for paving—Power of legislature.
    The provisions of the defendant’s charter to the effect that the railroad companies occupying portions of the streets in the city should bear a portion of the expense of paving such streets was within the authority of the legislature, and the share of the expense to be thus borne was within its discretion.
    .2. Statutes—Amendment—Construction.
    An amendment to a municipal charter undertook to consolidate the provisions in respect to the construction of sewers with those relative to the grading and paving of streets, but omitted to repeal certain sections relating to a preliminary notice of intention to construct a sewer, etc. Meld, that such sections, if they continue in force at all, continue so only in respect to the construction of sewers, and have no application to the subject of grading and paving streets.
    8. Municipal corporations—Assessments—Validity.
    An objection to the validity of a municipal assessment was that the resolution ordering the work to be done was not adopted “by a majority vote of the common council,” as required by its charter. It appeared that the common council consists of eight councilmen and that the mayor presides at their meetings and is entitled to a vote when there is a tie. At the meeting in question there was a tie on the resolution in question and the mayor voted in favor of the resolution and declared it adopted. Melii, that the vote thus declared was, within the meaning of the statute, “a majority vote of the common council.”
    Appeal from a judgment in favor of the defendant entered on the findings and decision of the court at the Chautauqua special term, in an action to restrain the collection of a local assessment and to set aside the assessment roll.

      D. II. McMillan, for app’lt in No. 1; G. F. Brownell, for app’lt in No. 2; W. D. Holt, for resp’t.
   Dwight, P. J.

The tracks of both the plaintiff’s roads run longitudinally through Third street in the defendant’s city, and together occupy about one-half the width of the street, in the middle. The assessment in question was laid to meet the expenses ■of paving that portion of the street lying south of the railroad tracks and between certain limits east and west, under a provision •of the charter of the city which, so far as it relates to this particular .subject, is in the following terms :

“ For the purpose of making assessments under this title, the property * * * adjoining that part of the street so * * * paved * * * shall be taken to be the only property benefited by such improvement; * * * and in estimating the benefit from any such paving * * * on any street along which a railroad is running or using a part thereof, the company owning such railroad shall be estimated to be benefited by such paving * * * in such proportion as its tracks and usage of said street may bear to the width of the whole street, and be assessed for such work proportionately thereto.”

The assessment of the plaintiffs is assailed on several grounds, ■one of which relates to the constitutionality of the above provision, and others tó its construction, and to the mode of applica-tian of this and other provisions of the charter of the defendant

The constitutional objection may be broadly stated to be to the effect that the provision arbitrarily discriminates against a particular class of property, and fixes an arbitrary measure of its assessment without regard to the actual benefit received. The argument of learned éounsel for the plaintiffs, respectively, in support, of this objection is elaborate and instructive, but we do not feel at liberty to follow it to the conclusion to which it points, in view of the many decisions of the courts of our own state which recognize the cofnplete and well nigh absolute authority of the legislature over the subject of taxation. Such are the cases of the People ex rel. Crowell et al. v. Lawrence et al., 41 N.Y., 137; In the Matter of Van Antwerp, 56 id., 261; Spencer v. Merchant, 100 id., 587.

Moreover, on the principle that corporations, which are creatures of the legislature, should be still subject to its control, which at the time of its revision was enacted into a statute, 1 R. S., 600, § 8, it was competent for the legislature to lay upon the plaintiffs, a burden which was additional to those prescribed by their charters. Albany Northern R. R. Co. v. Brownell, 24 N. Y., 345, overruling Miller v. N. Y. & E. R. R. Co., 21 Barb., 513; Boston & Albany R. R. Co. v. Greenbush, 52 N. Y., 510; People ex rel. Kimball v. B. & A. R. R. Co.., 70 id., 569. Under the doctrine-of these cases it seems clear that the requirement of the statute in. question, to the effect that the railroad companies occupying portions of the streets in the city of Dunkirk should bear a portion of the expense of paving such streets, was within the authority of the legislature, and that the share of the expense to be thus borne was within its discretion.

It is further objected that the assessment in question is invalid because certain provisions- of the charter of the defendant relating to the subject matter were not complied with. Those provisions are found in § 1 of title 12 of that act, being chap. 479 of the Laws of 1867, as amended by chap. 19 of the Laws of 1880. The section as amended reads in part as follows: “ Sec. 1. Whenever the common council may deem it necessary to construct a sewer in any street, to grade, pave, macadamize or plank any street or part of a street in said village (sic), it is hereby authorized to declare by resolution its intention so to do and .to take all necessary steps for doing said work as provided in §§ 2 and 3 of title 12, and in § 2 of title 13, of this act (sic), and to order said work to be done and to let the contracts therefor by a majority vote of said common council.” Several blunders occurring in this section are due to the fact that the enactment was in the form of an amendment to the charter of the village of Dunkirk (act 1867,. chap. 479), and that there was an attempt to consolidate certain sections of the act amended, relating to different subjects. Thus,, of the amended statute, title 12 was entitled “ Construction of sewers,” and related solely to that subject, while title 13 was entitled and related solely to the “ Grading and paving of streets.” Title 12, by its §§■ 1, 2 and 3, required a preliminary resolution of intention of the board of trustees,'specifying the location and dimensions of the proposed sewer, to be published for two weeks in the village paper; an opportunity to every person interested to-file written objections to the project, and a hearing of such objections, before the sewer should be ordered to be built. Title 13, in its only §§ 1 and 2, contained no provision, for the adoption or publication of any preliminary resolution, nor for the tiling or hearing of objections, but (by § 1) gave to the board of trustees the authority to order the grading or paving of streets by the vote of two-thirds of its members; and (by '§ 2) to assess the costs of such improvements according to benefits, to be determined by assessors specially appointed for that purpose.

The act of 1880, which, as we have said, was a mere amendment of the act of 1867, and accomplished the transformation of the village into a city, of the president into a mayor, of the board of trustees into a common council by the mere change of reading of the several names wherever they occurred in the statute amended, undertook to consolidate the provisions in respect to the construction of sewers with those relating to the grading and paving of streets, and the result was the amended §■ 1 of title 12, a portion of which is last above quoted. Some of the confusion which has arisen in this case results from this awkward manner of amendment and abbreviation, but it is reasonably clear that §§ 2 and 3 of title 12 of the village charter, if they continue in force at all under the general repealing clause of the act of 1880,- continue so in force only in respect to the construction of sewers, and have no application to the subject of the grading and paving of streets; and that the only provisions of the act of 1867, referred to in the amended § 1 ot title 12, which apply to the last mentioned subject, are those of § 2 of title 13 of the act amended.

Such being the case, it is apparent that for the purpose of the paving ot' Third street, in the city of Dunkirk, no publication was required to be made of the preliminary resolution of intention, nor opportunity to file objections thereto, nor hearing given to such objections; but that it was only necessary that the improvements should be ordered by a majority vote of the common council, and that the cost of the improvement should be assessed upon the property benefited according to the benefits received as determined by assessors appointed for that purpose; with the proviso, in respect, to railroad property which was quoted at the outset of this opinion, and which was added to § 1 of title 12 of the act by the amendment of 1880.

An objection to the proceedings in question, which is suggested by a request to find on the part of one of the plaintiffs, though not argued on this appeal, viz.: that the statute required the appointment of two sets of assessors, one to ascertain and determine the cost and expense of the work, and the other to determine what property was benefited thereby and to assess the cost upon such property in proportion to benefits, was based upon a manifest clerical error in engrossing § 2 of title 3, by which certain words of the section were repeated. The section, as properly read, plainly shows that the cost of the work was to be ascertained and determined by the common council.

Another objection to the validity of the assessment is to the effect that the resolution ordering the work to be done was not adopted by a majority vote of the common council,” as required by the terms of § 1 of title 13 of the act as amended. The facts upon which this objection is based are as follows: The common council of the city • of Dunkirk consists of eight councilmen (title 8, § 2); the mayor presides at their meetings and is entitled to a vote when there is a tie in the vote of the councilmen (title 5, § 1); at the -meeting of the common council at which the resolution in question was adopted all the eight councilmen were present; the mayor also was present and presided; the vote of the councilmen on the resolution was four in favor of and four against its adoption, and the mayor thereupon voted in favor of the resolution and declared it adopted. We. can have no doubt of the correctness of this declaration, nor that the vote thus declared was, within the meaning of the statute, “ a majority vote of the common council.”

It is true the mayor is not declared to be a member of the common council, but he is its presiding officer, and in the case of a tie has a vote as such, and that vote determines the vote of the common council. So, as pointed out by counsel for the respondent,, the vice-president of the United States is not a member of the senate, but he is its presiding officer and has a vote in the case of a tie. ■ U. S. Constitution, art. 1, § 8, sub. 4. That a vote of the senate of the United States, determined by the casting vote of the vice-president, is a majority vote of the senate, admits of no-question. The case is the same with the senate of this state, N. Y. Constitution ,art. 8, § 7, and both are precisely parallel with the case under consideration. Bach of the votes supposed and the vote in question is a vote of the body in which it is taken, and is determined to be the vote of a majority of that body by the casting vote of its presiding officer. The case would probably have been otherwise had the provision required the vote of a majority of the councilmen present or elected.

The language of the statute which prescribes that in the estimates of benefits the railroad company “ shall be estimated as benefited by such paving, etc., in proportion as its tracks and usage may bear to the width of the whole street,” though perhaps not altogether well chosen, -is sufficiently intelligible and seems to us to admit of but one construction. Plainly, it intends that the benefit to the railroad company shall be held to bear the same proportion to the entire benefit of the improvement, as the width of that portion of the street occupied by the railroad bears to the entire width of the street; and it was in this proportion that, as we understand,, the several assessments to the plaintiffs were made.

Upon the whole we.find none of the plaintiffs’ objections to the-statute in question, nor to the mode of its application in this case, to be well founded. It follows that the plaintiffs’ complaints were-properly dismissed.

But it is objected that the defendant was not entitled to have an affirmative judgment on its counterclaim, against the plaintiffs,, for the amount of the assessment. The contention is that an assessment for a Ideal improvement, as distinguished from a general tax, cannot by any means be made a personal charge against the taxpayer, but is only in the nature of a lien upon the specific property assessed, and that proceedings for its collection are confined to proceedings in rem, and authorities are cited to that general effect. Cooley on Taxation, 675 ; Neenan v. Smith, 50 Mo., 524, 528.

But, here, the particular statute under which this assessment was laid comes to the aid of the defendant. Section 1 of title 19 of the charter of Dunkirk, as revised, after providing that “ all: general taxes and assessments * * * and all taxes and assessments made by the common council of the city of Dunkirk: shall be alike liens upon the real estate assessed,” proceeds as-follows: “and all the taxes and assessments, whether for general or.' local or special purpose, which shall remain unpaid for the space) of ninety days after the date of the first warrant annexed to the' roll thereof, shall bear interest at the rate of seven per centum per annum from that time; and such tax, with the interest,, may be sued for and collected by the city against any person liable therefor in any of the courts of this state; and the common council of said city is hereby empowered to bring actions in the name- of the city for such collection.”

There can, we suppose, be no question but that the words “ such, tax ” in the last clause of the section, refer to and comprehend' “all the taxes and assessments” mentioned in the preceding clause; and such being the case, there would seem to be no room here for the above contention, on general principles, against the-recovery of a personal judgment for a local assessment.

The judgment appealed from seems not to be obnoxious to any of the objections taken by the appellants, and must, therefore, be affirmed.

Judgment affirmed, with costs.

Macomber and Lewis, JJ., concur.