text:
    WILLIAM W. DEWEY, Respondent, v. THE BOARD OF SUPERVISORS OF THE COUNTY OF NIAGARA, Appellant.

      Illegal assessment—when money collected under, can he recovered—Payment—when voluntary—When county liable for money collected hy it and paid over before suit b'ought.

      %

    Moneys paid upon a tax or assessment, made under color of law and of lawful authority, and while such assessment remained, or was deemed, valid, cannot be recovered simply on the ground that such tax happened to be subsequently held invalid, or that the proceedings upon which it was based were set aside.
    The defendant issued to the collector of taxes a warrant to collect an assessment, imposed upon lands of the plaintiff by the commissioners appointed in pursuance of chapter 774, Laws of 1867, for the purpose of draining certain lands in the town of Royalton. The plaintiff paid the tax. Subsequently, upon a certiorari sued out by him and others against the commissioners and the defendant, the entire proceeding was declared a nullity, and set aside. Prior to the service of the writ of certiorari upon the defendant, a portion of the money collected had been paid over to the commissioners as required by the act. In an action brought by the plaintiff to recover the amount of tax paid by him, held (1), that, as the tax was paid to the collector who held a warrant for its collection, the payment could not be regarded as a voluntary one. (2) That the plaintiff was only entitled to recover so much of the money, as remained in the hands of the defendant at the time of the service of the writ of certiorari.

      Newman v. The Supervisors of Livingston (45 N. Y., 676), Bank of the Commonwealth v. Mayor (43 id., 184), Chapman v. City of Brooklyn (40 id., 372) distinguished.
    Appeal from a judgment in favor of the plaintiff, entered upon the decision of the court, on a trial had before the court without a jury.
    The action was brought to recover money collected by the defendant from the plaintiff', in February, 1868, and January, 1869, for an assessment imposed upon his lands by three commissioners appointed, in pursuance of chapter 774, Laws of 1867, to make an improvement upon and through the land of the plaintiff and others, in the town of Royalton, for the purpose of draining such lands. The amount assessed against the plaintiff, was paid by him to the collector who was authorized and directed by the defendant to collect the same. Subsequently, a certiorari was sued out by the plaintiff and others against the commissioners and the defendant, and upon an appeal in such proceeding, the Court of Appeals decided that the commissioners’ assessment was void, because they did not acquire jurisdiction to make it, by reason of their failure to comply with the statute under which they assumed to act. (People v. Haines, 49 N. Y., 587).
    The other facts are stated in the opinion.

      George C. Greene, for the appellant.
    The tax was paid voluntarily, and could not be recovered back. (The Union Bank v. The Mayor, 51 Barb., 159-182 ; N. Y. & Harlem R. R. Co. v. Marsh, 12 N. Y., 308; Silliman v. Wing, 7 Hill, 159; Supervisors of Onondaga v. Briggs, 2 Denio, 26.)

      John Ganson, for the respondent.
   E. Darwin Smith, J.:

Confessedly, according to the decision of the Court of Appeals, in the case of The People ex rel. Ira O. Williams et al. v. Jesse P. Nwmes and others, commissioners, etc., the money collected and received by the defendants, upon the estimate and assessment made by the said commissioners, appointed by act of the legislature of 1867, for draining certain lands in Niagara county, were exacted and received without right, and upon an illegal and void assessment. Moneys so collected by municipal corporations, and paid into the treasury of the city or county, are recoverable by action for money had and received, as held recently in the cases of The National Bank of Chemung v. The City of Elmira, and Newman v. The Supervisors of Livingston and other cases. The point chiefly urged upon the appeal by the defendant’s counsel, for the reversal of the judgment in this case, is, that the plaintiff paid said drainage taxes voluntarily, with the full knowledge of the facts. In the opinion of the learned judge who tried this case at the circuit, no such point is discussed, and I presume it was not taken at the trial, as, in the findings, it is not found, or stated as matter of fact, that the moneys were not paid by the said plaintiff to the, collector, freely and voluntarily, without any seizure of goods, or duress of property, or threatened seizure, or that it was paid or procured by any mistake or fraud.

Moneys paid upon a tax or assessment, made under color of law and of lawful authority, and while such assessment remained, or was deemed, valid, cannot be recovered, simply on the ground that such tax should happen to be subsequently held invalid, and set aside, or the proceedings, upon which it was based, reversed.

While the doctrine that money voluntarily paid, in the absence of fraud or mistake, and with full knowledge of the facts, cannot be recovered, is well settled; it is not quite so clear, what shall constitute an involuntary payment, in such a sense that the money may be recovered. In respect to all personal contracts or claims between individuals, the rule, I think, is well settled, that there must be a seizure or duress of the person or goods, to constitute such an involuntary payment. But as between the public and individuals, or between public corporations or public authorities and individuals, the rule is not so held universally. In Newman v. The Supervisors of Livingston, the tax was levied upon the plaintiff’s personal property, by the collector under his warrant, and the same was sold, and the tax thus paid. In the case of the National Bank of Chemung v. The City of Elmira ‡ the collector, under his warrant, levied upon a quantity of bank bills belonging to the plaintiff, and sold them for the amount of the tax. These were unqualified cases of involuntary payment. But in the case of The Bank of the Commonwealth v. Mayor, etc., it does not'appear that any levy was made. But the warrant was issued for its collection, and the said tax was paid to the collector, as the complaint stated, and which the plaintiff offered to prove on the trial, by menace and compulsion. Judge Grover refers to this allegation of the complaint, and says, that “the plaintiff was legally bound to pay, and had no lawful mode of resisting it; that the assessment until reversed had the force of a judgment, requiring the plaintiff to pay the tax as required by the statuteand he held in effect that the plaintiffs were not bound to resist the officer, but had a right to pay without affecting their right to receive back the tax, should the tax thereafter be determined to be illegal by a reversal of the assessment.

In the case of Preston v. Boston, Chief Justice Shaw said, “ that when a warrant to a collector is issued to collect a tax and a party not liable to taxation is called peremptorily to pay upon such warrant, he may give notice that he pays under protest and pay and recover the money, as money had and received and not paid voluntarily.” This was substantially what was done by the plaintiff in this case, as the evidence shows. It is true that in the finding of facts, the judge does not expressly find that the plaintiff paid the tax under protest or coercion. Vet, I think, we must hold the finding sufficient to sustain the judgment, under the rule quite generally asserted and followed in the Court of Appeals, and in this court, in reviewing judgments rendered by referees or single judges, that a general finding will be held to embrace every essential fact to sustain a judgment, where the evidence in the case will fully warrant such finding, and the parties, seeking to obtain a judgment, have failed to procure from the judge or referee any finding that shows the judgment to be erroneous. The payment of the tax to the collectors, was not therefore such a voluntary payment, as to preclude the plaintiff' from a recovery on that ground. The tax was levied, demanded and collected under the authority of the defendants, in the execution, on their part, of the act by which this drainage and improvement in question were authorized, and in conformity with the provisions of the eighth section of said act. They received the plaintiff’s money from the town collectors, and the same was deposited and mingled with the general money of the county by the county treasurer. The proceeding of the commissioners under the act aforesaid, in making the assessment upon which said tax was based, and all their proceedings having been set aside by the Court of Appeals, as void, for want of jurisdiction, it follows that the defendants have obtained and received the plaintiff’s money without right, and are liable to refund the same, within the decision of the said court in these several cases above cited, and other cases, unless, upon some other point, they have a defense to such claim.

This brings me to the only question remaining, which is, whether the payment of the moneys by the defendants to the drainage commissioners upon their order, before the notice of claim or commencement of suit by the plaintiffs, constitutes such a defense. There can be no question, I think, that the moneys collected by the defendants, and paid over to such commissioners after the service of the writ of certiorari, brought by the plaintiff and others to review and reverse the proceedings of said commissioners, and while such proceedings were pending and undetermined, were paid at their peril and in their own wrong, and they are clearly liable for such moneys. It is stated, as admitted in the case, that the writ of certiorari, directed to the defendants, was served on them, on the 30th of March, 1868. This writ was doubtless obtained ex parte. The order for its allowance was granted March twenty-fourth, and does not recite that any one appeared for the defendants, or show on its face that any notice of motion had been served for the application for such writ. Before this time, the taxes, levied in the year 1867, under the tax-roll of that year, had been collected and paid to the county treasurer of said county, and most of the money paid out upon orders of the said commissioners. From the testimony of the clerk of the county treasurer, it appears that all the moneys so collected under the warrant and assessment for 1867, except the sum of $205.15, had been so paid out by such county treasurer, before the allowance and service of said writ of certiorari. And it does not appear that the defendants had any notice, forbidding them to pay over such moneys, or of any pending or contemplated legal proceedings to review said assessment, or test its legality, or for the recovery of the money collected from the plaintiff in this action, or any other of the persons assessed for said improvement, before the service of such writ of certiorari.

Whether the defendants are liable in this action, for moneys so paid over in good faith to the drainage commissioners, to defray the expense of a local improvement in one of the towns of said county, in which the county at large had no interest, and the defendants were the mere agents of the parties interested in such improvement, designated by the legislature to collect such moneys by the ordinary machinery for the assessment and collection of county and town taxes, and where they, the said supervisors, had themselves been guilty of no fault, and had not committed any judicial error, and had no power to review or correct the judicial conduct or decisions of the commissioners intrusted with the work of constructing said improvement, and estimating the expense of the same, and making an assessment upon the persons benefited thereby, remains to be considered.

I am not prepared to admit, or to decide, that the defendants are liable for money so paid out. The question has not, I think, been decided in any of the cases in this State. In Newman v. The Supervisors of livingston the moneys were collected for county and town taxes, and paid into the county treasury for such purpose. In the case of Bank of the Commonwealth v. Mayor, etc., the money was collected by the city receiver of taxes for county and city taxes, and it was held that the city was only liable for the moneys paid into the city treasury. In the-case of The Bank of Chemung v. The City of Elmira, the moneys collected were upon the ordinary rolls for the city and county taxes, and the city was held liable only for that amount paid into the city treasury. In the case of Chapman v. The City of Brooklyn, the money had been paid upon the sale of a city lot for a local assessment, and the money paid into the city treasury. There was a mistake about the lot sold, it being assessed to a wrong person. The city could give no title to it, and had no authority to sell the lot The recovery was sustainable and the decision right upon several grounds, and it did not appear that the money had been paid over to the contractors. The court differed in opinion as to the grounds of the decision; but the ease does not assert or hold the doctrine that money assessed or collected by a municipal corporation for a local improvement, and paid over in good faith, before the notice of claim to it, or notice not to pay the same, or of any lis pendens, existing in respect to the validity of the assessment, can be recovered back from said corporation. In that case, it appears that the city, if compelled to refund the money, had still the power to make a new assessment, and correct the error of the former assessment. In this case no such power exists on the part of the. defendant-; and, if the money is recovered, it is lost to the county at large, unless, upon application to the legislature, the commissioners, by an enabling act, shall be authorized to make a new assessment, and rectify the errors committed by them in proceeding to construct said ditches before they had procured the requisite title from the proprietors of the land, required for that purpose.

The principle upon which the recovery was had in all the foregoing cases, is well stated by Judge G-boveb in the case of The Bank of the Commonwealth v. The Mayor of New York. The action, he said, “is to recover money in the- hands of the defendant, which does not belong to it, but to the plaintiff, which was paid by the plaintiff upon an erroneous judgment. In that case the tax was $3.729.73, and was paid to the city officers, and by them paid in to the city treasurer. Judge Groves says in respect to it: “ When the entire tax was paid to the chamberlain, he must be regarded as receiving that portion imposed for the defendant, as its treasurer, and the balance as county treasurer. For the latter, the defendant cannot be held responsible, as the money cannot be regarded as ever received by it.” This tax was collected upon the warrant and authority of the city, but it was only held liable for the money received for the use of the city, and applied to city purposes.

The case of Chapman v. Brooklyn is simply authority for the proposition, as Judge Grover states it, that an action will lie against a municipal corporation for the recovery of money in its hands to which it has no right, but which belongs to another. The right to recover money collected or received upon an erroneous judgment, exists from the moment it is reversed, as against the party receiving the money and appropriating it to his own use.

The action lies for money had and received, without consideration, under the form of law; but it lies only against the party benefited by the money, the plaintiff in the execution. A sheriff who had collected the money on execution and paid it over to the plaintiff^ would not be liable to an action to refund the same. The county of Niagara has received no benefit from the plaintiff’s money; it was not received for the use of the county. The defendants were mere agents of the plaintiff and the other land owners interested in the said improvement, to collect and pay over the said money for their benefit.

It appears from the findings of the judge, etc., that the county treasurer received from the collector the sum of $453.72, which was collected from the plaintiff; and . this money was anticipated and paid out, upon orders of the drainage commissioners, before the service of the certiorari, except the sum of $205.15. This money being in the hands of the defendants when the writ of certiorari was served, it then should have been retained by them to meet the claims of the plaintiff and others, if any other of the persons assessed for said work should establish a claim to have the money paid by them refunded. The service of such writ was a virtual and sufficient demand for the repayment of such money. It-does not appear that any other of such persons paid their tax under protest. I do not see, therefore, why the plaintiff is not entitled to recover the money thus remaining from said tax of 1867, in the hands of the defendant’s county treasurer at the time of the service of the said writ of certiorari.

The difference between this amount and the whole amount of the tax of 1867, is $250.57. This sum, with interest thereon from February 5th, 1868, the time when said money was paid to the collector, which is the time from which the interest included in the judgment was computed, according to the finding of the judge, should be deducted from the judgment, and it should be affirmed for the balance.

Present — Smith, P. J., Talcott and Gilbert, JJ.

Judgment, as modified, affirmed.

       49 N. Y., 587.

         Chap. 774.

       53 N. Y., 49.

       45 id., 676.

       The Commercial Bank of Rochester v. The City of Rochester, 42 Barb., 488, affirmed in the Court of Appeals, at September term 1869; Union Bank of New York v. The Mayor of the City of New York, 51 Barb., 159; New York and Harlem R. R. Co. v. Marsh, 2 Kernan, 308.

       Harmony v. Bingham, 2 Kernan, 116; Silliman v. Wing, 7 Hill, 159; Supervisors of Onondaga v. Briggs, 2 Denio, 39; Commercial Bank of Rochester v. City of Rochester, 41 Barb., 342.

        Supra.

       43 N. Y., 184.

       12 Pickering, 14.

      Meacham v. Burke, 54 N. Y., 219; Viele v. Troy & Boston R. R. Co., 20 id., 184; Grant v. Morse, 22 id., 323.

       Chap. 774, Sess. Laws 1867.

        Supra.

       Supra

      Bank of U. S. v. Bank of Washington, 6 Peters, 8 ; Chegaray v. Jenkins, 1 Seld., 376.


source: Caselaw Access Project

author: E. Darwin Smith, J.:

license: Public Domain

text:
    LEONARD P. FIELDS and JARED W. PARSONS, Committee, etc., Respondents, v. MAXWELL T. FOWLER, Appellant.

      lAmaiic — commiittee of— when action may be brought in their name.

    An action to rescind the sale of a farm made to a lunatic, and to cancel the satisfaction of a mortgage given by him, is properly brought in the name of the committee of such lunatic.

      McKillip v. McKillip (8 Barb., 552) distinguished.
    Appeal from a judgment in favor of the plaintiff, entered upon the report of a referee.
    This is an action in equity, brought by the committee of a lunatic to set aside a sale of a farm to the lunatic, made to him while a lunatic by the defendant, and to rescind said sale, and cancel the satisfaction of a mortgage given by said lunatic, and for other relief.

      Hiscock, Gifford & Doheny, for the appellants.

      C. B. Sedgwick, for the respondent.
   E. Darwin Smith, J.:

This action being brought to impeach and set aside the deed to Amidon, the alleged lunatic, and the satisfaction of the mortgage and check executed by him to the defendant, on account, and on the ground, of the insanity of said Amidon at the time of their execution, was properly brought by, and in the name of, his committee. The rule undoubtedly was and still is at law, when the action is brought to assert the title of the lunatic in real or personal property, it must be brought in his name, as held in McKillip v. McKillip. The appointment of a committee of a lunatic does not, as held in that case, divest him of his estate or rights of action, and the rule as there stated remains, except as changed by the Code, as hereinafter stated, and by the act of 1845, which authorizes the committee to sue for any debt, claim or demand transferred to them, or to the possession and control of which they are entitled as such committee. The case of MoKilli/p arose before the Code, and was decided without respect to it.

The 111th section of the Code, providing that every action must be prosecuted in the name of the real party in interest, simply adopted the rule in chancery as to parties to actions. In Gorham v. Gorham, Chancellor Walworth, upon this question, after referring to the various cases where the subject had been considered, said: “ The result of these several decisions was, that where the object of the bill was to set aside the act or deed of the lunatic upon the ground of his mental incapacity at the time the act was done, or the deed was executed, the bill might be filed by the committee or the attorney-general alone, or by joining the lunatic with the committee.” Chancellor Kent held the same rule, in Ortley and Baker Committee, etc., v. Messere, and overruled a demurrer to a complaint, presenting the single point that the lunatic was a necessary party, and said that the lunatic might be considered as a party by his committee, and, like trustees of an insolvent debtor, the committee held the estate in trust under the direction of the court. This view coincided in effect with the case of Person, Committee, etc., v. Warren, where the learned judge held that the committee might be held a trustee of an express trust for the purpose of maintaining such an action within the spirit and intent of section 113 of the Code. Within these cases, I think the action was properly brought in the name of the committee. I see no error in the ruling of the referee, and think the judgment should be affirmed with costs.

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

Judgment affirmed, with costs.

      8 Barb., 552.

       Vide Sess. Law, 1845, chap. 112, p. 90.

         3 Barb. Chancery Rep., 32.

      7 John. Chy., 139.

       14 Barb., 488.


author: Talcott, J.:

text:
    ANSON M. BAKER, Appellant, v. HOME LIFE INSURANCE COMPANY, Respondent.

      Policy of inmmnce—Warranty—breach of—Statements to agent of company— effect of.

      A policy was issued by the defendant, on the joint lives of the plaintiff and his wife, loss payable to the survivor. By the application, signed by the plaintiff, it was agreed that the answers to the annexed questions should form the basis of the contract or policy to be granted thereon, and that if the same were not in all respects true, the said policy should be void; and a similar provision was contained in the policy itself.
    The assured answered the question, “ Have the parents . . . brothers . . . of the party been afflicted with . . . consumption, or with any pulmonary . . . or other constitutional disease ? ” by a simple and unqualified negative. In an action brought by the plaintiff upon the policy, after the death of his wife, it appeared that her brother had died of consumption. Held, that the incorrectness of the answer of the question avoided the policy, and that the action could not be maintained.
    The plaintiff testified that his wife informed the agent of the company, that she understood that her brother had died of consumption. Held, that, as both of the assured signed the answer to the question, and as there was no evidence tending to rebut the presumption that the wife signed the paper with a full knowledge of its contents, such.knowledge on the part of the agent would not entitle the plaintiff to recover.

      Pawley v. The Empire Ins. Co. (36 N. Y., 550) and Plumb v. The Cattaraugus Ins. Co. (18 id., 392) distinguished.
    Motion for" new trial, after nonsuit at the Livingston Circuit, and on exceptions ordered to be heard at General Term in the first instance. The facts are stated in the opinion.

      Mr. Danforth, for the plaintiff.

      Mr. Capwell, for the defendant.
   Talcott, J.:

This was an action on a life insurance policy on .the joint lives of the plaintiff and his late wife, the loss payable to the survivor. Attached to the application, and to the answers to the questions propounded on behalf of the insurance company, was an agreement by the plaintiff, signed by him, containing the following, amongst other provisions: “And it is further agreed that the preceding answers given to the annexed questions and the accompanying statements, and this declaration, shall be the basis, and form part of the contract or policy, which may be granted on this application. And if the same be not in all respects full, true and correct, the said policy shall be void, and all moneys which may have been paid on account thereof, shall be forfeited to said company.” And the policy, itself, declares that the same is granted by the company, and accepted by the assured, upon the express condition that if the statements, declaration and agreement, made by or for the assured, contained in the application, upon the faith of which the policy is made, shall be found imtrue in curvy respect, the company shall not be liable for the payment of the sum assured, or any part thereof, and the policy shall cease and be null and void, and of no effect. Among the questions and answers in writing which constituted a part of the application, was the question, numbered twenty, as follows: “Have the parents, uncles, aunts, brothers or sisters of the party, been afflicted with insanity, consumption, or with any pulmonary, scrofulous or other constitutional disease ? ” This the assured answered by a simple and unqualified negative. The evidence was pretty clear to show that several of the brothers and sisters of Mrs. Baker had died from consumption. As to some of these cases, however, there might have been some question of fact, but as to the case of William L. Dana, a brother of Mrs. Baker, there seems to have been no room for any such question. Doctor Wolcott, an experienced physician, under whose care Mr. Dana had been for some two years before his death, and who had most ample opportunity for ascertaining by every method the disease with which he was afflicted, and of which he died, unhesitatingly pronounces that disease to have been tubercular consumption, and states that he examined his lungs several times during the progress of the disease by the usual methods of percussion and auscultation, and gives the history of the disease and symptoms* down to the time of death. The qualifications of Dr. Wolcott are in nowise questioned, and his testimony is in no respect impeached or rendered doubtful. If anything can be proved, as a matter of medical science, we think it was established in the case beyond all question, that William L. Dana, the brother of Mrs. Baker, had been afflicted with, and had died of, consumption, prior to ■ the application for this policy. This being so, and the answer to the twentieth question being thus shown to be untrue, by the express terms of the agreement accompanying the application, and of the policy itself, the company was not liable for the amount insured, or any part thereof. It is true, the twentieth question is very far reaching, and the answer to it, being an absolute and unqualified negative, was a very incautious and dangerous assertion, but it is not for the court to alter the plain contract of the parties. If persons, procuring policies, see fit to take such contracts, and make such statements as the basis thereof, they must abide the consequences. To allow the statements to be contradicted, upon the claim that the party had signed them without having read them, when there was no pretense that he was prevented from reading, or that the contents were in any way misrepresented, would be to destroy all security afforded by reducing contracts to writing.

The plaintiff testifies that Mrs. Baker informed the agent of the company, that she understood her brother, William L. Dana, had died of consumption. Nevertheless, both of the assured signed the statement containing the answer to the twentieth question; and, as to Mrs. Baker, there is no evidence tending to rebut the presumption that she signed the paper with a full knowledge of its contents. The case of Rowley v. The Empire Ins. Co., on which the plaintiff’s counsel seems to rely, to establish the proposition that if a true statement is made to the agent, and he puts down a false answer, the company is nevertheless bound, is a very different case from the present. In that case, the statement was made to the agent according to the truth, and the assured signed the statement in blank, upon the agreement of the agent to insert the particulars as furnished to him. The agent took the application away with him, and afterward filled it up incorrectly; and the question in the case was, whether, in filling up the application under these circnmstances, the agent was acting as the agent of the company, or of the assured; and it was held that he acted as the agent of the company in filling up the blank in the absence of the assured, he having assumed to receive the application in blank, and agreed to fill it up according to the instructions. In Plumb v. The Cattaraugus Ins. Co. the agent had assumed to make the survey — it being a part of his duty as agent of the company to make the survey— and he made the statement to the assured of the measurements. The statement signed by the assured as to the measurements, was according to, and on the faith of, the measurements furnished to him by the agent; and on the assumption that the agent was authorized on behalf of the company to make these measurements, it was held that the company was estopped to deny the truth and accuracy of the measurements furnished by its agents to the assured, on the principle that, when one by his acts or conduct willfully causes another to believe in the existence of a certain state of things, and induces him to act on that belief, so as to alter his own previous position, the former is concluded from averring a different state of things as existing at the same time.” The reason why these cases should not be extended to a ease like the present, are forcibly presented in Bliss on Life Insurance, section 292. At all events, in the present case, the violent presumption of the law is, that Mrs. Baker fully understood the contents of the statement signed by her, and its legal effect; and there is, absolutely, no evidence to repel this presumption as to her; consequently, whatever may be claimed as to the evidence touching the diseases and death of Mrs. Baker, herself, and of her other brother and sister, there would seem to be no question but that the statement in answer to the twentieth question was untrue in regard to William L. Dana; nor, but that a verdict, finding the answer to be true, would have been unauthorized upon the evidence. We think, therefore, that the nonsuit was right, upon the ground on which it was placed at the circuit; and a new trial is denied, and judgment ordered upon the nonsuit.

Present — E. D. Smith, P. J., Gilbert and Talcott, JJ.

Ordered accordingly.

      36 N. Y., 550.

       18 N. Y., 392.


author: E. D. Smith, J.:

text:
    OREN S. GEORGE v. ALFRED ARTHUR. ALFRED ARTHUR, Respondent, v. OREN S. GEORGE and others, Appellants.

      Foreclosure by advertisement—notice of sede —service of, upon administratoi's of mortgagor—uiken sufficient.

    Where a mortgage was foreclosed by advertisement, and notices of sale, in due time and form, were served on the personal representatives of the mortgagor, by inclosing the same to them, respectively, in a proper envelope, sealed and addressed to them at their residences, as follows: Mrs. Minerva George,
    Martinsburgh, N. Y.; Chester Shumway, administrator, etc., Martinsburgh, E". Y.; Lorenzo Shumway, administrator, etc., Martinsburgh, N. Y. Held, that the service was sufficient, and the object of the statute was fully complied with. A notice of sale, addressed to a party interested in mortgaged premises as administratrix, is sufficient though thé word administratrix is not added to her name.
    The appeal in the first action, is from an order denying a new trial in an action of trespass, commenced in a justice’s court, and removed to this court on a plea of title, etc. The appeal in the second entitled action, is from a judgment entered at the circuit, in an action of ejectment, and from an order denying a new trial.

      C. E. Stephens, attorney for the appellants.

      Abram I. Mereness, attorney for the respondent.
   E. D. Smith, J.:

The appeals in these two cases both present and depend upon the same question. It is, whether the foreclosure of the mortgage, mentioned in the pleadings and case, was valid or otherwise.

The question arises upon the affidavit of service of the notices of sale of the mortgaged premises. It appeared on the trial, that the mortgage in question was executed by William George and wife prior to April, 1869; that said George died in February, 1870, and that proceedings to foreclose the mortgage, which was past due, were commenced in March 1873, by advertisement.

Ho question was made as to the regularity of the proceedings upon the foreclosure, except that the'affidavit of the printers did not show a publication in each and every week for twelve weeks, which is not pressed, and is clearly untenable within the case of Howard v. Hatch; also, that the affidavits do not show any service of notices on the administrators and administratrix of William George, deceased. It was proved on the trial that before the commencement of said foreclosure proceedings, Minerva George, Chester Shumway and Lorenzo Shumway were duly appointed administrators and administratrix of the estate of the said William George, deceased, and that they were duly qualified and acted as such. The affidavit of the service of the notice, stated that a copy of the printed notice of sale was, in due time and form, served on said administrators and administratrix, by inclosing the same to them, respectively, in a proper envelope, sealed and addressed to.them at their residence, as follows: Mrs. Minerva George, Martinsburgh, N. Y.; Chester Shumway, administrator, etc., Martinsburgh, N. Y.; Lorenzo Shumway, administrator, etc., Martinsburgh, N. Y. We cannot see why this service was not entirely sufficient, and the object of the statute fully complied with. The notice apprised the persons served, etc., of the time and place of the proposed sale of the mortgaged premises of the estate of which they were administrators, etc. They could not be misled by it, and could not fail fully to understand its purport, purpose, object and intent. The notice was served upon the proper persons in proper time, and they were bound to take notice of such service, and act according to their rights and duties in respect thereto. The affidavits of publication and service of notice, printing, etc., were sufficient to perfect the foreclosure. In the action of ejectment and trespass, the party asserting such title was entitled to prove such extrinsic facts as were essential to give full force and effect to the foreclosure, and such proof was properly allowed on the trial.

Judgment in each case should be affirmed.

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

Judgment affirmed.

      29 Barb., 297.


text:
    JESSE FOWLER, Appellant, v. WILLIAM O. MILLIMAN, Respondent.

      Appeal from judgment of justice of the peace — notice of appeal — appellant restricted to grounds therein stated.

    On appeal from a judgment rendered by a justice of the peace, only those grounds will be considered, which are particularly taken and specified in the notice of appeal.
    Appeal from a judgment of the County Court of Wayne, reversing a judgment of a justice of the peace.

      J. B. Decker, for the appellant.

      Wm. Roe, for the respondent.
   E. Darwin Smith, J.:

From the opinion of the county judge, it appears that the judgment of the justice was reversed upon the single ground that evidence of the value of the úse of the premises was received. This was held to be error, upon the ground that the plaintiff had been ousted of the premises, and that a jiarty ousted must regain possession before he can maintain an action for any damages occurring subsequent to such trespass or entry by the wrongdoer. The same ground is presented and argued here, in support of the judgment of the County Court. The error of the county judge was in considering grounds and objections, not taken on the trial or specified in the notice of appeal, and reversing the judgment of the justice on such grounds. We have repeatedly held, that the review of the judgment rendered by justices of the peace should be confined to the ground particularly taken and specified in the notice of appeal. It is not fair for parties to lie by in the justice’s court, and refrain from taking there their objections, or from stating the true grounds of such objections, and also in stating general and vague grounds of error in their notice of appeal, and then raise the real ground of error, for the first time, in the County Court, or in this court.

The judgment of the County Court should be reversed, and that of the justice affirmed.

Present — Smith, P. J., Talcott and Gilbert, JJ.

Judgment of County Court reversed.

       Delong v. Brainard, 1 N. Y. Sup. Ct., 1; Nolan v. Page, id., addenda, 2.


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    JOHN HEERMANS, Appellant, v. CATHARINE T. HILL, Respondent.

      Surrogate — powers of.

    A surrogate has power to allow a person who has proposed a will for probate, to withdraw the same, and discontinue the proceeding.
    Appeal from an order of the surrogate of Steuben county, allowing the respondent to withdraw from the contestation of a will, proposed by her for probate.

      Brown & Hadden, for the appellant.

      Wm. Rumsey, for the respondent.
   E. Darwin Smith, J.:

The single question presented upon this appeal, is, whether the surrogate had power to allow the respondent to withdraw the will from probate, and to discontinúe proceedings.

It is difficult to see, upon what principle a court or judicial officer, authorized to entertain any suit or proceedings of a judicial character, is not necessarily possessed of the power to dismiss such a proceeding, or to allow the same, in his discretion, to be discontinued. Surrogates’ courts possess the incidental power, common to all courts or officers exercising judicial functions. The necessity for the existence and exercise of such power, has been repeatedly asserted in the courts. Surrogates’ courts, it is true, are courts of special and limited jurisdiction. Such courts must show their authority in the statute book for taking jurisdiction of any particular subject-matter, but, in respect to all matters committed to their cognizance after they have fully acquired jurisdiction, they must possess the ordinary incidental common-law power, necessary, to the due discharge of the duties intrusted to them.

The p'ower to entertain a suit or proceedings, implies a power to dismiss or discontinue them, and we can see no reason why this power should be denied to surrogates’ courts. We think the surrogate clearly possessed the power to allow the proponant in this case, to retire from an impending litigation upon the will in question, and leave to others its assertion, who might be disposed to encounter the controversy. The order should be affirmed with costs.

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

Order affirmed, with costs.

       Sipperly v. Baucus, 24 N. Y., 46.

      Pew v. Hastings, 1 Barb. Chy., 452; Vreedenburgh v. Calf, 9 Paige, 128; Skidmore v. Davies, 10 id., 816; Brick’s Estate, 15 Abbott, 32; Campbell v. Thatcher, 54 Barb., 384.


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    MORTIMER A. HELMS, Respondent, v. JOHNSON V. GOODWILL, Appellant.

      Attorney and client— contract between—when sustained.

    An attorney will not be allowed by the court to take any undue advantage of his client, but he may deal with his client openly and fairly, and in such case their agreements will be sustained by the court.
    Where a person acts rather in the capacity of a broker than that of an attorney, he is entitled to recover for his services, so rendered, as upon a quantum meruit, although the agreement in relation to his compensation is not sustained.
    Appeal from a judgment entered at Special Term, in Cattaraugus county, for the sum of $1,011.36, against the defendant, appellant.
    The court found, among other things, as matters of fact: Fifrst. That in the year 1868, one Albert Helms was in the possession, under a contract of purchase, and was the equitable owner, of about thirty acres of land in the town of Randolph. That Thomas J. Chamberlain, Amos Dow, Alonzo Kent and Charles P. Adams, as executors of the last will and testament of Benjamin Chamberlain, deceased, held the legal title to said land. That said executors, in that year, brought an action in the Supreme Court of the State of Hew York, to foreclose said contract of purchase, in which action said Albert Helms was defendant, and also another action in the same court against the said Helms, to recover the value of certain personal property, sold the said Helms by the said Benjamin Chamberlain in his lifetime, as was alleged.
    That Johnson Y. Goodwill, the defendant herein, was an attorney and counselor of this court; that said Albert Helms retained said defendant and his law partner, Merrill T. Jenkins, to defend each of the said actions brought by said executors, and said defendant and his said law partner appeared in said actions for said Helms, and conducted the defense therein. That afterward, the said Helms and the said executors had an accounting, and agreed upon the amount due upon said contracts of purchase, and other matters between them, finding then due from said Helms to said executors, including costs of proceedings, about the sum of $2,000; and the said executors agreed, upon the payment of the said sum, that they would convey the said thirty acres of land to said Helms. That said land was then of a valué greatly exceeding said sum of $2,000.

      Second. That said Johnson Y. Goodwill and the said Albert Helms then entered into a parol agreement as follows: Said Helms should assign to said Goodwill the contract of purchase he held for said lands; that said. Goodwill should procure the money, to pay the said executors the sum agreed to be due to them, from one William M. Brown, and take a deed of said lands from said executors, and should hold the same in trust for said Helms. That said Goodwill should secure said Brown for said money, by his bond and a mortgage upon said lands, payable in one and two years from that date. That said lands should be laid out into village lots, and that said Goodwill should assist said Helms to sell sufficient of said lots to pay off said mortgage, and that the proceeds of said lots sold, should be applied in payment of said bond and mortgage, given to said Brown, and that after selling lots sufficient to pay said mortgage, the rest and remainder of said land should be conveyed by said Goodwill to said Helms, and that for his said services, and for the indorsement of $100 on the note of $250 given, and in consideration that said Goodwill should build such a house as he proposed upon the same, the said Goodwill should have one and one-half acres of said land, situate in the south-west corner thereof. That at the time of making said agreement, said defendant was the attorney and legal adviser of said Albert Helms, in and| about said actions with said executors, and in and about the sale and management of said property.

      Third. That in pursuance of said parol agreement, said Helms did assign said contract of purchase to said defendant, Goodwill, and said defendant did procure a deed of said lands from said executors, and that said defendant thereupon, and on the 26th day of September, 1868, executed his bond and a mortgage on said lands, except the one and one-half acres in the south-west corner thereof, to said Wm. M. Brown, to secure the sum of $2,500, payable, one-half in one year, and the remainder in two years from that date, and that he received from said Brown that sum for said mortgage. That the defendant paid out of the said $2,500, to the said executors and to others for the benefit of said Helms, $2,300, and he retained of said sum, $200 for his own use and benefit.

      Fourth. That said defendant went into possession of said one and one-half acres of land in the south-west corner of said thirty acres, and still remains in possession thereof, and that said one and onelialf acres of land were of the value of $600; that said defendant built a residence for himself thereon, of the description agreed upon between him and said Helms. That said Helms remained in possession of the remainder of said lands.

      Fifth. That about the time of the making of the said parol agreement, the said Albert Helms and the said defendant, and his law partner, Merrill T. Jenkins, had an accounting of and concerning the services of said firm of Jenkins & Goodwill, in and about said Helms’ business, and in and about said actions with said executors; and upon said accounting the said Jenkins & Goodwill charged said Helms for said services the sum of $250, and thereupon said Helms gave said Jenkins & Goodwill his promissory note for the sum so charged him; and that, at or soon after the time the said Goodwill mortgaged the said lands to said Brown as aforesaid, said Goodwill applied $150, derived from said mortgage, on said note, and that the remaining $100 of said note was paid by said Goodwill on the purchase-price of said one and one-half acres of land, and said note was given up to said Helms.

      Sixth. That the said defendant did not lay out the said lands into lots; that he did not sell or assist in the sale of any lots therefrom, or pay anything upon said mortgage given to said Brown, and took no further steps to carry out the arrangements contemplated by the parties; but when said mortgage became due, it was foreclosed, and all of said land except said one and one-half acres thereof, occupied by the defendant, and about one acre sold to one Brown, was sold, and the proceeds applied upon said mortgage, and interest thereon. That upon said sale there was a deficiency of $28.18, which said defendant became liable to pay.

      Seventh. That when the said mortgage given to Brown ivas foreclosed, said Goodwill attended the sale of the premises made thereunder, and purchased a portion of said premises.

      Eighth. That before the commencement of this action, the said Albert Helms duly sold, assigned and transferred to the plaintiff herein, all claims, demands and causes of action, legal or equitable, which he had against the defendant herein.
    The court found as conclusions of law:

      First. That the said defendant was liable to pay the plaintiff, as assignee of said Albert Helms, the sum of $200, retained by him from the proceeds of the Brown mortgage, with interest thereon from September 28, 1868, less the amount of said deficiency of $28.18, which with interest from the recovery of the deficiency, deducted from said $200, and interest, and charged the payment thereof upon that part of the thirty acres purchased by the defendant upon the foreclosure of the Brown mortgage.

      Second. That said defendant was liable to, and should pay the plaintiff, as assignee aforesaid, the value of said one and one-half acres of land, to wit: The sum of $600, with interest thereon from September 28,1868; and that he should be allowed upon said price, the sum of $100, so applied upon the note of said Albert Helms to Jenkins & Goodwill, as aforesaid, as a payment, September 28, 1868. And the court charged the payment thereof upon the one and one-half acres, and directed that the defendant pay to the plaintiff his costs of this action; and he directed judgment accordingly.
    Defendant, at the close of the trial, asked the court to find and decide, “ that defendant was entitled to compensation for his services in signing and executing the bond and mortgage for Helms’ \ benefit, and should be credited in this action therefor.” The court refused so to find or decide, and defendant duly excepted thereto.
    Defendant also asked the court to find and decide, “ that defendant was entitled to compensation for building his house under the agreement with Helms, and that he should be credited in this action ' for the benefits said Helms received.” The court refused so to find or decide, and the defendant duly excepted thereto.
    Defendant also requested the court to find and decide, “ that defendant was entitled to compensation, and should be credited in this action, for his services in trying to sell lots, whatever such services were reasonably worth; ” and the court refused so to find or decide, and the defendant duly excepted thereto.

      F. W. Stevens, for the appellant,
    cited, as to effect on agreement, of the relation of attorney and client existing between the parties, Hunter v. Alkins (3 Mylne & Keen, 113); Edwards v. Meyrick (2 Hare, 60); Gibson v. Jeyes (6 Ves., 277); Nesbit v. Lockman 34 N. Y., 169); Brock v. Barnes (40 Barb., 527).

      James G. Johnson, for the respondent,
    cited Howell v. Ransom (11 Paige, 538-543), on question of compensation.
   E. Darwin Smith, J.:

The decision of the learned judge who tried the cause, upon the whole case, carries out the doctrine that the relations between attorneys and their clients are to be watched by the court with great care and strictness, to see that no undue advantage has been taken "by the attorney, or any abuse of confidence or unfairness practiced by him upon his client, in their business transactions. While this is just and proper, there is danger, on the other-hand, that injustice may be done to‘the attorneys. They have the same rights to trade, deal, bargain and contract, with other men, and they may deal with their clients as with other men, when they do so openly and above board, and without fraud, deceit or any kind of imposition arising from their relations as attorneys, or the confidence reposed in them in that respect.

When Helms applied to the defendant to assist him to borrow money to pay the incumbrance upon his land, so as to enable him to obtain his deed and receive the title therefor, the application was scarcely addressed to him in the line of professional employment.

The defendant was asked to do rather the office of a broker than that of an attorney; and when the defendant, upon the urgent importunities of Helms, and as possibly his only expedient and resort to raise the requisite money for the purpose aforesaid, was finally induced to borrow such money upon his own personal credit, and to incur a legal obligation to repay the same, he. did more than belonged to him in his mere relations of attorney to the said Helms, and had a right to stipulate for a fair compensation for the labor and services rendered, and responsibility incurred, in that respect, as much as any other man. This consideration, we think the learned judge at the trial overlooked, in refusing to find, as requested at the close of the trial by the defendant’s counsel, “ that the defendant was entitled to compensation for his services in signing and executing the bond and mortgage for Helms’ benefit, and should be credited in this action therefor; ” and also in refusing to find and decide, “ that the defendant was entitled to compensation for building his house under the agreement with Helms, and that he should be credited in this action for the benefit said Helms received ; ” and, in the view of the case taken by the learned judge, and in respect to the theory or ground upon which he put his decision, he erred, we think, also, in refusing to find and decide that the defendant was entitled to be credited in this action, for his services in trying to sell lots, whatever such services were worth.

If the defendant were not entitled to retain and hold the lot upon which he had erected his house, as and for his stipulated compensation for the services rendered in negotiating the loans of the money to save said lot of land for Helms, — including the giving of his personal obligation to secure the payment of such money, and his services in selling and deeding the lots, and assistance and advice and services rendered in the management of said property, then he was entitled to be paid for such services, as upon quantum meruit, as much as any broker, agent or other employe rendering such services. As these considerations, we think, were obviously overlooked, or not duly considered upon the requests, as above stated, and, in the decision of said cause, we think that error occurred on the trial for which judgment should he reversed, and a new trial granted.

Present—Smith, P. J., Talcott and Gilbert, JJ.

Judgment reversed, and new trial granted '


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    THE NIAGARA ELEVATING COMPANY, Appellant, v. DENNIS McNAMARA, Respondent.

      Collector of terns—protected try his warrant—entitled to judgment of redelivery of property levied upon, if it he taken from him in replevin, although the tax he illegally imposed.

    A collector of taxes of the city of Buffalo, who shows that property was taken under a warrant, has made out a complete defense to an action for the recovery of such property; and if such property be taken from him in an aqtion of claim and delivery of personal property, he is entitled to judgment for its redelivery to him, and damages for its detention, he having acquired a special property in it by force of the levy.
    The plaintiff cannot sustain such action, by showing that the tax, for the collection of which the warrant issued, was illegally imposed.
    Appeal from a judgment of the Special Term of the Superior Court of Buffalo, certified into this court pursuant to the statute.
    The action was for the claim and delivery of 7,000 bushels of ■ barley malt, seized by the defendant, a collector of taxes, under a tax warrant issued by the comptroller of the city of Buffalo. The plaintiff reclaimed, and took the malt in this action.

      John Ganson, for the appellant.
    Statutes relative to imposition of taxes, are mandatory. (Van Rensselaer v. Witbeck, 3 Seld., 517; Cruger v. Dougherty, 43 N. Y., 107, 122; Whitney v. Thomas, 23 id., 281; Torrey v. Millbury, 21 Pick., 64, 67; The Bank of Chemung v. The City of Elmira, 53 N. Y., 49; The People v. Board of Assessors, 39 id., 81, 84.) A defective warrant does not protect the collector. (Wright v.
      Briggs, 2 Hill, 77; Hudler v. Golden, 2 Trans. App., 316.) Defendant not entitled to judgment for return of malt. (Earl v. Camp, 16 Wend., 562; Dunlap v. Hunting, 2 Denio, 643; Beach v. Botsford, 1 Douglass [Mich.], 199.)

      George B. Hubbard and David F. Day, for the respondents.
    The warrant protected the collector. (The Niagara Elevating Co. v. McNamara, 50 N. Y., 653.) The assessment was regular. (Am. Trams. Co. v. City of Buffalo, 20 N. Y., 388, n; Mayor, etc., v. Mutual Bank, id., 287.) Presumption that assessors did their duty. (Boyd v. Gray, 34 How., 323, 327.) Defendant was not hound to look back of his warrant. (Savacool v. Boughton, 5 Wend., 178 ; Sheldon v. Van Buskirk, 2 Com., 473; Chegaray v. Jenkins, 1 Selden, 376; Patchin v. Ritter, 27 Barb., 34; Parish v. Golden, 35 N. Y., 462; Westfall v. Preston, 49 id., 349.) This action is substantially the old action of replevin. (Rockwell v. Saunders, 19 Barb., 473,481; Chappel v. Skinner, 6 How., 338, 339; The N. R. Co. v. Carpentier, 4 Abbott, 47, 51; Nichols v. Michael, 23 N. Y., 264, 268.) This action cannot be maintained. (The People v. The Albany C. P., 7 Wend., 485; O'Reilly v. Good, 42 Barb., 521; Hudler v. Golden, 36 N. Y., 446.) The remedy was by certiorari. (The M. B. L. Ins. Co. v. Supervisors of N. Y., 32 How., 359; The People v. The Assessors, 39 N. Y., 81; Swift v. City of Poughkeepsie, 37 id., 511; 43 id., 184; 53 Barb., 223; 56 id., 340; 14 N. Y., 534; 32 How., 359.) Process is good in hands of officer knowing of an error existing. (Webber v. Gay, 24 Wend., 485 ; People v. Warren, 5 Hill, 440; Trustees Rochester v. Symonds, 7 Wend., 392,395 ; Dominick v. Eacker, 3 Barb., 17; Johnson v. Learn, 30 id., 616.) Interest on value of property recoverable. (Suydam v. Jenkins, 3 Sandf., 614; Rowley v. Gibbs, 14 J. R., 385.)
   E. Darwin Smith, J.:

This action was for the claim and delivery of 7,000 bushels of barley malt, which was the property of the plaintiff, and was seized and taken by the defendant, as a collector of taxes, under a tax warrant issued to him by the controller of the city of Buffalo. Annexed to such warrant, was a transcript from the tax-roll of the first ward, of said city for the year 1868, upon which the plaintiff was taxed, under the heading of personal property, in the sum of $5,182. The plaintiff’s property was seized under such warrant for the collection of such tax. The action, which is equivalent to the old action of replevin — which did not lie, as this action also does not, under section 207 of the Code, when the property has been taken for a tax or assessment or fine — was brought by, and delivery claimed upon, the assumption that the tax was illegally imposed, and that the warrant for its collection was void upon its face. This question has been litigated in this action, through the courts, and has been finally decided in the Court of Appeals against the plaintiff.

On the trial, under this decision of the Court of Appeals, when the defendant had shown that he was collector of taxes of said city of Buffalo, and tools; said property under said warrant, which was then produced and given in evidence, he had made out a complete defense to said action. The plaintiff’s counsel then, among other objections to the plaintiff’s recovery, which were all disposed of by the decision of the Court of Appeals, insisted further, that the defendant, in any event, was not entitled to a return of the property The learned judge who tried this cause ruled otherwise, and the defendant’s counsel duly excepted to such decision. The decision of the judge upon this point was clearly correct. He held, that, by force of the levy, the defendant had acquired a special property in the malt, and was entitled to a return of it, with damages for its detention, and, in default thereof, was entitled to recover, as the value or extent of special property, the amount of the said tax, with interest thereon. This was clearly right.

The judgment should be affirmed.

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

Judgment affirmed.

       Vide, 50 New York, 653.

       Howland v. Willetts, 5 Selden, 173; Watson v. Office of Sheriff, 190; Earl v. Camp, 10 Ward, 568.


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    NELSON SHALLIES, and T. H. BUNNELL, Assignee, etc., of Nelson Shallies, Respondents, v. EUGENE W. WILCOX, Appellant.

      Lease—covenants in — damages for a breach of, may be set up by tenant, in action far the rent.

    Plaintiff leased certain premises to the defendant for $300 a year, and agreed, in consideration of the covenants and agreements contained in the lease, to board him at his (plaintiff’s) house during the said term. ■ In an action to recover rent for a half year’s occupation of the premises, it appeared that the plaintiff had refused to board the defendant, as required by the lease. Held, that the defendant had a right of recoupment and counter-claim, to the extent of the value of his board from the time of the plaintiff’s refusal to board him.
    Proof that defendant got drunk, or otherwise misconducted himself at plaintiff’s house, held to be immaterial.
    Appeal from a judgment in favor of the plaintiff, entered upon the report of a referee. The action was brought to recover rent for a half year’s occupation of certain premises, leased by the defendant. The lease provided that the defendant should pay the yearly rent of $300, to be paid semi-annually, and that, “the said Nelson Shallies further agrees, in consideration of the above covenants and agreements, to board the said Eugene W. Wilcox during said term, at his house in Arcade.” On or about the middle of June, 1872, the plaintiff refused to allow the defendant to hoard any longer at his house, and the defendant did not board with, nor was he boarded by, the plaintiff after that time.
    The defendant, in his answer in this case, set up the refusal of the plaintiff to board him, as a defense.

      S. S. Spring, for the appellant.

      I. Saml. Johnson, for the respondents.
   E. Darwin Smith, J.:

By the term of the lease upon which this action was brought, the lessor was to receive $300 per annum for the rent of the store occupied by the defendant, and the board of the said defendant in his, the plaintiff’s, family. This, I think, the true construction of the lease. The lessor agreed, in consideration of the covenants and agreements in said lease contained, “ to board the said Engene Wilcox during said term at his house in Arcade.” The defendant was as much entitled to his board, as he was to occupy the demised premises. The sum of $300, stipulated to be paid for the rent of the store, was in part payment for such board. The agreement for the board was like a covenant for repairs, or other collateral covenant in a lease, running with it, and part of the contract, the breach of which would not take away the right to receive, or recover for the rent, while the lessee continued to occupy the premises, but would give him a right of recoupment or counterclaim to the extent of the damages. When the lessor elected not to board the defendant longer, for whatever cause, he released, in legal effect, a right to recover the full consideration for the occupancy of the store, called rent, to the extent of the value of the defendant’s board. The defendant clearly had a right of recoupment and counter-claim, to the extent of the value of his board from the time in the said half year that the plaintiff Shallies had refused to board him. It was in proof on the trial, that board at the time was worth in Arcade three dollars a week. The referee erred in giving judgment for the plaintiff for the full amount of rent, without making any deduction therefrom for the amount of the defendant’s counter-claim for board during the time.

The question whether the defendant was drunk or sober at the plaintiff's house, or otherwise misconducted himself, I do not think of any consequence in the case. The plaintiff' had a clear right to control his own house, and refuse to board the defendant with or without cause ; but, when he elected not to board him, he could not recover the full price for the occupation of the store and his board to the same effect as if the defendant had had the full benefit conferred upon him by the lease. The proof shows that the plaintiff, Shallies, did not board the defendant, from about the middle of June, 1872, till the end of the half year — the 9th of September, 1872, being part of the half year for which rent is claimed and was recovered. Twelve weeks’ board, at three dollars a week, from the middle of June to the ninth of September, would amount to thirty-six dollars. This amount, at least, should have been deducted and allowed by the referee at the date of his report.

This sum should be deducted from the judgment, and it should be affirmed for the balance and neither party should have costs upon the appeal.

Present — Smith, P. J., Gilbert and Talcott, JJ.

Judgment so ordered.


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    JOHN D. SPINNER, Respondent, v. THE NEW YORK CENTRAL AND HUDSON RIVER RAILROAD COMPANY, Appellant.

      Fences — duty of Bail/road company to maintain—gates in—when company responsible for injuries resulting from their Icing open.

    Cattle of the plaintiff strayed upon the highway, and passed from thence through a gate in a fence, erected by the defendant in pursuance of the laws of this State, upon its tracks, where they were killed. At the place where the gate was situated, the land on both sides of the road was owned by one F., for whose convenience it was built.
    Evidence was given upon the trial, to show that the gate was used by persons in passing to and from the freight depot of defendant. Held, that if the defendant was accustomed to use the gate for its accommodation, or for the accommodation of persons doing business at its depot, and on the night in question it was left unclosed through the carelessness of any of its agents, such negligence would be the negligence of the defendant, for which it would be responsible; and that whether or not this was so, should have been submitted to the jury.
    Appeal from a judgment in favor of the plaintiff. A herd of cattle belonging to the plaintiff, escaped from his inclosure, and strayed first into the highway, and thence, through a gate in a fence, erected by the defendant for the use of the owner of the land, pursuant to chapter 140, Laws of 1850, and chapter 282, Laws of 1854, upon the tracks of the defendant, where they were killed. Evidence was given upon the trial, to show that the gate was used by the agents and servants of the company, and also by persons doing business with it, in passing to and from its freight depot. There was also some evidence to show that the gate was out of repair at the time of the accident. The court submitted only the question of damages to the jury, and reserved the other questions for further consideration. A case was settled and brought to argument before the same judge at Special Term, who subsequently made his decision thereon, ordering judgment for the plaintiff upon the verdict. From the judgment entered upon such decision, this appeal was brought.

      S. W. Jackson, for the appellant.

      Amos H. Prescott, for the respondent.
   E. Darwin Smith, J.:

The statutes of 1850 and 1854, requiring railroad companies to erect and maintain fences on the side of their road, with openings or gates or bars therein for the use of the proprietors of the land adjoining their railroad, we think was sufficiently complied with in this instance. The defendants had erected, constructed and maintained the proper fence and gate at the place where the accident occurred. The accident was not caused by the omission to erect or maintain the fence or gate, but from the omission to keep shut or closed the gate erected for the use of the proprietor of the adjoining land. The gate was not out of repair so far as to furnish any just ground or pretense to hold that the company had failed or omitted to erect and maintain a proper fence and gate.

Whether the defendants were responsible for the killing and injuring the plaintiff’s cattle, depended, we think, entirely upon the question, whether the said gate was at the time used by them in their business, or by their agents or persons doing business with said company, for access to their depot of road from the highway, and was left open at the time when the injury occurred by or through the carelessness or negligence of the said defendants or their agents or employes. If the defendants were accustomed to use the gate in question for their accommodation, or for the accommodation or convenience of persons doing business with them at their depot, at that point on their railroad, and, on the night in question, it was left unclosed through the carelessness of any of their agents, such negligence would be negligence of the defendants, and for which they would be duly responsible in this action. This question, we think, should have been submitted to the jury.

There should therefore be a new trial, with costs to abide the event.

Present — Smith, P. J., Gilbert and Talcott, JJ.

New trial ordered, costs to abide event.


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    HARRIET C. STEVENS, Appellant, v. HOMER BOSTWICK, Administrator, etc., Respondent.

      Complaint—Cov&rtwre—when must be set vp in answer.

    Where a complaint sets out a cause of action on its face, and the defendant intends to interpose the defense that the plaintiff is a married woman, and has no separate estate, or carries on no separate trade or business, such defense must be set up in the answer.
    Appeal from a judgment entered on the report of a referee, dismissing the complaint on the ground that plaintiff was a married woman.

      A. C. Slevner, for the appellant.

      jPeck & Bowen, for the respondent.
   E. Darwin Smith, J.:

The referee clearly erred, in dismissing the complaint in this action. The complaint set out a cause of action, on its face, in favor of the plaintiff against the defendant. The answer denied the complaint, and set up a counter-claim. If the defendant intended to make the defense, that the plaintiff was a married woman and had no separate estate or carried on no separate trade or business, he should have set up such defense by answer. Coverture must be pleaded, to be available, if intended to be set up as a defense,

In Hallock v. De Munn, where it was held, that, to maintain an action against a married woman, it must be shown that the debt was contracted for the purpose of carrying on a separate trade or business, and for the benefit of her separate estate, the answer, in proper form, set up the defense in a denial of these facts. No question as to the form of the pleadings was presented for consideration.

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

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

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

       Freaking v. Rolland, 53 N. Y., 422.

      1st Chitty’s Pleadings, 449; Dillaye v. Parks, 31 Barb., 132.

       2 N. Y. Sup. Ct., 350.


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    GEO. TUCKER, Respondent, v. W. HUDSON STEVENS, Executor, etc., Appellant.

      Evidence — copy of account served on executor with offer to refer — when not admissible—Statement in books of testator, read to plaintiff—when admissible.

    In an action upon an account for wood sold to defendant’s testator, the plaintiff offered in evidence a copy of a verified account served on the defendant, and also an offer to refer, and the same were, under the objection and exception of the defendant’s counsel, received. Held, that their reception was error. That the papers were not proper evidence upon the issue, and it was not admissible to receive them, on the ground that they were addressed to the court on the question of costs.
    The defendant offered to read an entry from the testator’s books, testifying that he had read the same to the plaintiff. This was objected to and excluded. Held, that the court erred in so doing. That it was just as admissible as would be any parol statement of the facts, made in conversation between the parties, and admitted at the time to be correct.
    Appeal from a judgment rendered in the Lewis County Court, in an action on an account for wood sold defendant’s testator.
    The jury rendered a verdict for plaintiff for $24.20, for which amount, with costs, judgment was entered. On the trial, the plaintiff offered in evidence a copy of a verified account served on the executor, and also an offer to refer, which were received on the question of costs, under objection and exception by the defendant’s counsel; and defendant also offered to read an entry from the testator’s books, testifying that he read the same to the plaintiff. This was objected to and excluded, and the defendant’s counsel excepted.

      Adams & Swan, for the appellant.

      A. I Mereness, for the respondent.
   E. Darwin Smith, J.:

■ The reception, at the trial, of the two papers marked A and B, being the verified statements of the plaintiff’s account, with the affidavit of verification delivered to the defendant as executor, etc., and the offer of the plaintiff to refer said account, was, we think, an error. These papers were not proper evidence upon the issue, and it was not admissible to receive them on the ground that they were addressed to the court on the question of costs. In trials by jury, it is indispensable to a proper administration of justice, that the evidence be strictly confined to the issue, and that all other kinds or species of testimony be carefully excluded. It is impossible to determine, accurately, what weight immaterial or irrelevant testimony may have on the minds of jurymen not versed in legal proceedings and accustomed to judicial investigations.

The court erred, I think, also, in excluding the evidence, offered by the defendant, of the entry of the account in his father’s book, which the defendant testified that he read to the plaintiff. I do not see why it was not competent to read this entry, thus shown and read to the plaintiff. It was not offered as admissible, as an entry made in the books of the testator, but as a statement in writing shown to the plaintiff and read to him, as the testator’s statement of the facts relating to said wood, and its receipt. It was just as admissible as any parol statement of the facts, made in conversation between the parties, and admitted at the time to be correct, and not denied. It was a precise and certain statement of a fact, made to the plaintiff by the defendant, and admitted by him to be correct, as the defendant claimed.

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

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

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


text:
    MARY A. WOOSTER, Administratrix, etc., Appellant, v. GEORGE H. BOOTH, Respondent.

      Declarations of owner of property — when admissible in suit by — Code, § 399 — what testimony inadmissible under.

    In an action against a constable, to recover certain property attached in a suit against Mary A. Wooster, on the ground that the property belonged to the plaintiff’s intestate, his declarations to third persons as to the ownership of such property are competent; but the evidence of the plaintiff in the attachment suit, as to conversations had with the intestate, is inadmissible within section 399 of the Oode.
    Appeal from a judgment entered upon the report of a referee dismissing the plaintiff’s complaint. The action was brought to recover the possession of certain personal property. After the commencement of the action, Homer W. Wooster, the plaintiff therein, died, and it was continued in the name of his administratrix. Homer Wooster was keeping a hotel, at the time the action was commenced, in Onondaga Valley, and the property was in such hotel, when it was attached as the property of his wife, by the defendant, who was a constable of said county at the time. He justified under his attachment, alleging that the property belonged to the wife of plaintiff, Mary A. Wooster. The case was tried by a referee, who found for the defendant, that the goods so taken were the property of the said Mary A. Wooster, and dismissed the complaint; and judgment was entered accordingly, from which the plaintiff duly appealed to this court.

      W. H. & L. E. Warren, for the appellant.
    Fuller, Vann & Brooks, for the respondent.
   E. Darwin Smith, J.:

Very clearly, upon the plaintiff’s evidence, the goods for which this action was brought, were not primarily purchased, or ever owned by Mary A. Wooster, the defendant in the attachment suit. The bills of the goods upon the purchase, were made out to her husband. He purchased them, in fact, and paid for them, or all that was ever paid toward the purchase, and there is no affirmative evidence that he ever sold or transferred them to her. But this evidence is by no means conclusive in this action. Mrs. Wooster is now the administratrix of her husband, and the suit is prosecuted by her in his right, and is to be determined precisely as it stood when it was commenced by him, and as if he were still alive, and the plaintiff" upon the record. In this view, the question is, whether the deceased, in his lifetime, so conducted himself in his business transactions and dealings, as to authorize, upon his acts and representations, the finding by the referee that the goods in question did in fact belong to his wife, as against, or in favor of, his creditors or persons selling goods to be used at the hotel carried on by them. His statements and declarations to third persons, relating to his business and property at said hotel, and who owned the property and who was the principal in carrying on said hotel, were clearly admissible in evidence on the trial. The referee might, I think, properly give credence to his declaration to Mr. Hoyt, to whom he said, “ he did not own a chair in the house, and that everything he had was in his wife; ” to Mr. Gray, to whom he said, “my wife has got the lease and license in her own name, and owns everything in the house; ” and to Messrs. Griffin, Wilcox & Winche, to whom he made statements to the same effect, in substance. Upon these declarations, clearly good evidence against the deceased upon the question of fact who owned the said goods, I think the referee might properly rely, in finding that the property in said goods was in the wife, and particularly as Wooster had, in fact, just or lately gone into bankruptcy, and was divested thereby of all his property. This would not be good evidence against Mrs. Wooster if she were contesting the fact, but she has no interest in the question, and is not a party to the suit in her own right.

The exception that the defendant did not justify the taking of the goods, by the production and proof of his attachment, is not well taken. This point was not taken on the trial, and was clearly waived. The taking was admitted, and proved-by parol without objection, and was clearly regarded by the parties and the referee as an admitted and recognized fact. But I do not see how we can avoid reversing the judgment and granting a new trial, for the error of the referee in receiving the testimony of the witnesses, Burke and Henle, in regard to their conversations with the deceased. They were the plaintiffs and judgment creditors in the attach, ment suit, and were virtually the defendants in interest in this action. Section 399 of the Code forbids the examination, as a witness, of any person thus interested in the event of the action, in regard to any personal transaction or communication between the witnesses and a deceased person, against the executor or administrator of such person. Both of these witnesses gave important and material testimony in respect to their conversations with Wooster, and his declarations upon the subject as to who was the principal in carrying on the said hotel, and in respect to the ownership of the household goods and furniture therein. This testimony was properly excepted to, and was clearly inadmissible.

For this error, the judgment should be reversed and a new trial granted, with costs to abide the event.

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

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

       Howland v. Willetts, 5 Selden, 170.


text:
    CHAS. H. WOMBOUGH, Plaintiff, v. FRANCIS E. COOPER, Defendant.

      Verdict—when may be directed by the court—When party waives his right to object to the failure of the court to submit question to jury.

    The rule in respect to when a judge may nonsuit, or direct a verdict for the plaintiff or defendant, is substantially the same. It is, that when the evidence on either side is so clear and undisputed, that a verdict by the jury, in conflict with it, could not be sustained, and the judge would feel it his duty to set it aside, then it is his duty to direct a verdict in conformity with such evidence, as it is Ms duty to direct a nonsmt when the plaintiff’s evidence entirely fails to establish a cause of action.
    In an action to recover money, advanced by the plaintiff on hops consigned to Mm for sale by the defendant, the defense interposed was, that the plaintiff had neglected to sell the hops, when ordered to do so by the defendant. At the close of the testimony, the defendant’s counsel asked the court to direct a verdict for the defendant, on the ground that the plaintiff had received orders to sell, at a time when they could have sold the hops for more than enough to cover all his claims against the defendant, and that not having done so, he could not recover. The court refused so to direct, and the defendant duly excepted.
    The court then, at the request of the plaintiff’s counsel, directed a verdict in favor of the plaintiff, to which direction the defendant duly excepted. Meld, that the court erred in so doing. (1). That there was no such defect of testimony tending to establish the defense as to warrant such a ruling; (2), that the exception of the defendant was available, although no request was made to submit the question to the jury. When the defendant’s counsel excepted to the direction of a verdict in favor of the plaintiff, upon the evidence exclusively, and not upon any question of law, the very exception involved an objection to the decision of the judge, in taking the case from the jury upon the evidence, and implied also an assertion that the rights of the defendant were thereby legally infringed.
    Motion for a new trial, on exceptions ordered to be heard in the first instance at the General Term. The action was brought by the plaintiff, to recover the balance of $300, advanced by a firm of commission merchants in JSTew York city, to the defendant, on a consignment of a quantity of hops for sale. Plaintiff, who was a member of the firm, claimed to be the sole owner of the demand, by. transfer of the other partners to him. The defense was, that the firm disobeyed the instructions given them by defendant, to sell the hops at a time when the same could have been sold for more than enough to pay the advances, interest, commissions and expenses, and that in consequence of such disobedience, the loss and damage of the defendant amounted to a larger sum than the plaintiff claims.

      J. W. Dininny, for the plaintiff.

      G. T. Spencer, for the defendant.
   E. D. Smith, J.:

At the close of the testimony at the trial, the defendant’s counsel asked the court to direct a verdict for the defendant, on the ground that Lent, Wombough & Oo. having received orders to sell at a time when they could have sold the hops for more than enough to cover their advances, charges and commissions, with interest, and they not having done so, the plaintiff could not recover. The court refused so to direct, and the defendant’s counsel duly excepted. The plaintiff’s counsel then asked the court to direct a verdict for the plaintiff", and the court thereupon directed a verdict for the plaintiff for $182.15, to which the defendant’s counsel then and there duly excepted.

These exceptions present the only points necessary to consider in the decision of the case. The hops were unquestionably sent to the plaintiff for sale at not less than sixty cents per pound, and the verdict is right in amount, if plaintiff is entitled to recover. The hops were sent in October, 1867, and the defendant gave evidence tending to prove that, in the month of December, afterward, they gave instructions to said Lent, Wombough & Go., to sell the same absolutely, immediately, or before the 1st of January, 1868, and that if such instructions had been followed, the said firm of Lent, Wombough & Oo. would have received from the proceeds of said hops, more than sufficient to have reimbursed them for their advances. The request of the defendant’s counsel, that the court direct a verdict for the defendant, was therefore a sound and proper request, if the facts were so far satisfactorily established and undisputed by the evidence, as to warrant such a direction. The rule in respect to the question when a judge may nonsuit at the circuit, or direct a verdict for the plaintiff or defendant, is substantially the same. It is that when the evidence on either side is so clear and undisputed, that a verdict by the jury, in conflict with it, could not be sustained, and the judge would feel it his duty to set it aside, then it is his duty to direct a verdict in conformity with such evidence, as it is his duty to direct a nonsuit when the plaintiff’s evidence entirely fails to establish a cause of action.

In accordance with this rule, I do not think the learned judge at the circuit erred, in denying the request of the defendant’s counsel to direct a verdict for the defendant. The evidence tending to prove the instructions to sell the hops absolutely, claimed to have been given in December, was not so clear, unqualified, and undisputed as to make the giving such a direction an imperative duty on the part of the judge. On the other hand, upon the same principles, I think the instructions, at the request of the plaintiff’s counsel, to direct a verdict for the plaintiff, erroneous. There was not such a defect of testimony, tending to establish the defense, as to warrant such a ruling.

It seems to me quite clear that if the circuit judge had submitted the question to the jury, whether explicit instructions were given to the plaintiff’s firm, in the month of December, to sell said hops immediately and unqualifiedly, and they had found a verdict on that issue in favor of the defendant, the court could not properly have set aside such verdict as unwarranted by the evidence. The letter written by the plaintiff’s firm, dated January 17, 1868, clearly admitted the receipt of a letter of the nineteenth of December previous, with directions to sell, and corroborates, in this par ticular, the testimony of the defendant, Cooper, and the witness Hubbard. The question remains, whether this exception is available to the defendant, inasmuch as no request was made to submit the question to the jury. It seems to me, that, under the circumstances of this case, the exception to the direction of the court to the jury, to render a verdict for the plaintiff, is available, and is a valid exception. Exceptions of this kind are held unavailing, on motions for a nonsuit, or where a verdict is asked or directed for either party, and no request is made to submit any question to the jury, on the ground that there was a mutual assumption, on the part of the court and of the counsel, for both parties, or a tacit assent to, or acquiescence in, the opinion of the court that there was no question of fact in the case. Such was the recent case of Leggett v. Hyde, in the Court of Appeals. In that case Judge Folger said, “ that when each party asked the court to direct a verdict in his favor, each conceded thereby that there could be no dispute upon any question of fact; each conceded that there was left for decision only a question of law.” This was clearly so in that case, for, upon reference to the case, it appears that at the close of the trial, after a motion for a nonsuit had been made and denied, the circuit judge remarked, “ I do not see that there is anything to go to the jury.” This remark or opinion of the court was clearly acquiesced in by the counsel for both parties, for neither objected, or suggested that any question remained for the jury, or asked the court to submit any question to them. In the case of Winchell v. Hicks, and Barnes v. Perine, it was assumed upon the motions for a non-suit, that there was no dispute as to the facts, and that there was nothing to be submitted to the jury. These cases were decided upon questions of law; and the rule as therein stated, that there must be a request to submit some question to the jury, to make an exception to the decision of the court directing a verdict or nonsuit available, was so understood and considered in the case of Sheldon v. Atlantic Ins. Co., and in the case of Stone v. Flower. Judge Grover, in the last mentioned case, referring to that of Sheldon v. Atlantic Insurance Company, said: “ Here the judge determined that upon any finding authorized by the evidence, the plaintiff was not entitled to recover; and the court held that the question whether in this the judge erred, was presented by the exception to the nonsuit. Here, the plaintiffs had done nothing to induce a belief that there was no question of fact involved. By resisting the motion for a nonsuit, they had insisted upon their right to recover upon the facts proved, or, at least, to have such right submitted to the jury.”

In this case, the defendant’s counsel asserted and assumed that the evidence was entirely on his side on the question of fact, or sufficient to call upon the judge to direct a verdict in his favor. He certainly did not waive, but insisted on that view of the evidence ; and the court denied his request and granted that of the plaintiff’s counsel, upon his view of the weight and force of the evidence, the defendant’s counsel resisting such decision and insisting on a different ruling and decision, and excepting distinctly to the adverse ruling of the court. Ho question of law was raised or involved in the decision. It was not conceded or assumed that the case turned upon any such question. It was presented and argued, on both sides, as a question of fact, upon the weight of the evidence. When motions for a new trial are made upon a case, or case containing exceptions, the court exercises a large discretion-in granting or refusing them. Hew trials are frequently refused or granted in such cases where the court would have been constrained, upon exceptions, to hold that error had been committed in not submitting some questions to the jury.

An explicit and sound exception to the decision or ruling of a judge at the circuit, upon a bill of exceptions, cannot be disregarded in the court of review unless it is in some way waived, estopped, or superseded, in the progress of the cause, or it appears upon the case that it is not possible for the party to succeed on a new trial.

When the defendant’s counsel excepted to the direction of the circuit judge to the jury, to find a verdict for the plaintiff, at the close of the trial, upon the evidence exclusively, and not upon any question of law, the very exception involved an objection to a decision of the judge in taking the case from the jury upon the evidence, and implied also an assertion that the rights of the defendants were thereby legally infringed. Such was the meaning and force of the exception. It was practically a claim that the case was one for the jury, unless the court deemed it clear for the defendant on such evidence, and that it was the right of the defendant to have them pass upon the evidence in the cause after the judge had refused to direct a verdict for the defendant.

I think the exception so taken a valid one, and that a new trial must therefore be granted, with costs to abide the event.

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

¡New trial granted, with costs to abide the event.

       Appleby v. Astor Fire Ins. Co., 54 N. Y., 253.

       Albany Law Journal, Oct. 10,1874, vol. 10, No. 15, p 231.

       18 N. Y., 558.

      2 Kernan, 18.

      26 N. Y., 460.

       47 N. Y., 566.

       Hayden v. Palmer, 7 Hill, 385.


author: Gilbert, J.:

text:
    THE PEOPLE ex rel. ALFRED A. HOWLETT and others v. THE MAYOR, Etc., OF THE CITY OF SYRACUSE.

      Oity of Syracuse—cha/rter of—local assessment under—city must bear part of expense— benefit to property — how determined.

    Section 4 of title 8 of the charter of the city of Syracuse, provides that the commissioners, appointed to assess the amount awarded for damages upon the property benefited by a local improvement, shall “ direct such part of said expenses to be assessed upon the city, and such part locally, as they shall deem just.”

      Held, that the legislature intended that a portion of the expenses should be borne by the city, and the residue only by the owners of the property benefited. The only discretion vested in the commissioners, was that of apportioning the burden between the owners and the city, and they had no power to exempt either from all contribution thereto.
    The charter required the commissioners to assess that part of the expense, to be borne locally, “ upon the property benefited by such improvement, in a just and equitable manner, as near as may be in proportion to the benefits received.” Held, that the statute did not authorize any exemption or deduction in favor of property, which, for the time being, was used for religious purposes.

      Matter of Mayor (11 Johns., 77) overruled.
    The general rule for determining benefits, is to ascertain the market value of the property, with and without the improvement.
    Certiorari to review the proceedings of the common council oE the city of Syracuse, in confirming an assessment for local improvements.
    Certain property in the city of Syracuse was taken for the purpose of extending a street, and the. property benefited by the improvement, was assessed for the damages sustained by the owners of the property taken. Among the property assessed was land belonging to the Presbyterian church. From the return of the commissioners, it appeared that the church held its lands in fee with the usual powers of alienation, and that such lands fronted on Salina street, and were of equal or somewhat greater value per front foot than those which adjoined them on the south. That in making the assessment, the commissioners took into account the fact' that said church was used for church purposes only, and other property for commercial purposes. That they also took into account, in their assessment, that the improvement removed from one Dillaye’s property, and other property adjoining him on the south, an extensive barn building and stable, which were in dangerous proximity to said property. That no part of the expense was assessed upon the city, because they deemed the improvement to be entirely local in its benefits, and that it was not just to assess the city at large therefor.

      I. G. Vann and L. W. Hall, for the relators.

      A. H. Green, for the respondent.
   Gilbert, J.:

The return in this case presents two errors, which are too palpable to be overlooked. First. No part of the expense of the improvement has been assessed upon the city, whereas the statute made.it the duty of the commissioners, “to direct such part of said expenses to be assessed upon the city, and such part locally as they should deem just.” The legislature clearly declared a rule of assessment, whereby a part of the expenses should be borne by the city corporation, and the residue, only by the owners of property benefited. The only discretion on this subject, vested in the commissioners, was that of apportionment between the owners and the corporation. They had no power to exempt either from all contribution to the burden. The statute is imperative; and whether the legislation is wise or expedient, is a question with which neither the commissioners nor this court have anything to do. Laws in derogation of private rights must be strictly pursued. Second. The commissioners applied a rule of apportionment among the owners of property benefited, much more favorable to a religious corporation than other owners, whereas the statute required the commissioners to assess that part of the expense, to be borne locally, “ upon the property benefited by the improvement, in a just and equitable manner, as near as may be in proportion to the benefits received.” The general rule for determining these benefits, is to ascertain the market value of the property, with and without the improvement. The commissioners return that “ the land belonging to the church is of equal or greater value than that which adjoins it on the south,” and yet they assessed the latter nine times as much as the former. The statute does not authorize such an exemption in favor of property, which, for the time being, is used for religious purposes ; and the case in 11 Johnson’s Reports, so far as it asserts a contrary principle, must be deemed overruled by the subsequent cases which have been cited.

We are inclined to think also, that the commissioners erred in taking into consideration the effect of removing the barn. The assessment must be set aside.

Assessment set aside.

       Charter, § 4, title 8.

        Ubi supra.

         Re Furman Street, 17 Wend., 649; Re William and Anthony Streets, 19 id., 690; Troy & Boston R. R. Co. v. Lee, 13 Barb., 169.