author: Dwight, P. J.:

text:
    THE CITY OF ROCHESTER, Plaintiff, v. WILLIAM I. QUINTARD, Defendant.

      Municipal bonds for the water supply of a city of over one hundred, thousand inhabitants, having a term longer than twenty years — construction of crniicle 8, section 11 of the State Constitution relating to the debt of cities and its limitation.

    It is provided by section 11 of article 8 of the Constitution of New York that a city-containing over one hundred thousand inhabitants shall not be allowed to become indebted to an amount which, including existing indebtedness, shall exceed ten per cent of the assessed valuation of its real estate; and that an indebtedness in excess of this limitation shall be void. An exception is made in the case of bonds issued to provide for a supply of water, but the term of such bonds is limited to twenty years, and a sinking fund must be created for their redemption. ■
    The city of Rochester, having a population of over one hundred thousand inhabitants, issued, under chapter 858 of the Laws of 1892, water bonds to the amount of $1,000,000, running for a term of fifty years, which, added to its existing debt, amounted to less than ten per cent of the assessed valuation of its real estate.
    A purchaser of such bonds refused to accept the bonds and complete his purchase because their term was longer than twenty years.
    Upon a submission of the matter, it was

      Reid, that the bonds were valid.
    That the restriction of the term of the water bonds to twenty years applied only to the case of a city with a population of over one hundred thousand inhabitants, whose indebtedness, including the proposed water bonds, would exceed ten per cent of the assessed valuation of its real estate.
    The constitutional provisions relative to limiting the debt of cities, reviewed.
    Submission of a controversy between the City of Rochester, as plaintiff, and William. I. Quintard, as defendant, without action upon an agreed statement of facts, under section 1279 of the Code of Civil Procedure.
    The city of Rochester is a municipal corporation organized under an act passed April 28, 1834. Its population in 1890 was 134,896. The assessed valuation of its real estate in 1892 was $96,543,650. It% total debt on September 1,1892, was $6,234,000. It was authorized, by chapter 358 of the Laws of 1892, to issue water bonds to the amount of $1,750,000. On September 13, 1892, such bonds, to the amount of $1,000,000, were offered for sale and Quintard was awarded 300 bonds at the price of $305,250, which the city is ready to deliver, but which Quintard declined to pay for and accept. There was no question in the case of a tender or of a demand of payment by the city.

      O. D. Keihel, for the plaintiff.

      Olark <& Sedgwick, for the defendant.
   Dwight, P. J.:

The only question involved in the controversy is that of the constitutionality of an act of the legislature of this State, passed April 20, 1892, which purports to authorize the city of Rochester to issue bonds to pay for an additional supply of water. (Laws of 1892, chap. 358.) The maximum amount of the bonds to be issued was fixed by the act at $1,150,000, and the maximum period for which they should run at fifty years.

Pursuant to the provisions of this act bonds were issued to the amount of $1,000,000 par value, which, by their terms, were to become due in fifty years, and were redeemable at any time after twenty years from their date.

Ata sale, under the provisions of the act, of the bonds so issued, the defendant became the purchaser of bonds of the par value of $300,000, at the price of $305,250. Subsequently he declined to receive and pay for the bonds so purchased by him on the ground alleged, that the act of the legislature under which they were issued was unconstitutional and void; and this submission was entered into to determine the question of his liability to complete his purchase by receiving such bonds, and paying the price bid by him therefor.

The objection specified by the defendant relates solely to the period which, by the act in question, was fixed for the running of the bonds; and in that respect it is contended, in his behalf, that the act is in violation of section 11 of article 8 of the Constitution. That section is, in full, as follows:

“§ 11. No county, city, town or village shall hereafter give any money or property, or loan its money or credit, to or in aid of any individual, association or corporation, or become directly or indirectly the owner of stock in or bonds of any association or corporation; nor shall any such county, city, town or village be allowed to incur any indebtedness except for county, city, town or village purposes. This section shall not prevent such county, city, town or village from making such provision for the aid or support of its poor, as may be authorized by law. No county containing a city of over one hundred thousand inhabitants, or any such city, shall be allowed to become indebted, for any purpose or in any manner, to an amount which, including existing indebtedness, shall exceed ten per centum of the assessed valuation of the real estate of such county or city subject to taxation, as it appeared by the assessment-rolls of said county or city on the last assessment for State or county taxes prior to the incurring of such indebtedness ; and all indebtedness in excess of such limitation, except such as may now exist, shall be absolutely void, except as herein otheiwise provided. No such county or such city whose present indebtedness exceeds ten per centum of the assessed valuation of its real estate subject to taxation, shall be allowed to become indebted in any further amount until such indebtedness shall be reduced within such limit. This section shall not be construed to prevent the issuing of certificates of indebtedness or revenue bonds issued in anticipation of the collection of taxes for amounts actually contained, or to be contained in the taxes for the year when such certificates or revenue bonds are issued and payable out of such taxes Nor shall this section be construed to prevent the issue of bonds to provide for the supply of water, but the term of the bonds issued to provide for the supply of water shall not exceed twenty years, and a sinking fund shall be created on the issuing of the said bonds, for their redemption, by raising annually a sum which will produce an amount equal to the sum of the principal and interest of said bonds at their maturity. The amount hereafter to be raised by tax for county or city purposes, in any-county containing a city of over one hundred thousand inhabitants, or any such city of this State, in addition to providing for the principal and interest of existing debt, shall not, in the aggregate, exceed in any one year two per centum of the assessed valuation of the real and personal estate of such county or city, to be ascertained as prescribed in this section in respect to county or city debt.”

It will be seen that by the terms of this section no restriction whatever is laid upon any city in respect to the amount of indebtedness to be incurred by it for city purposes, except upon cities having each a population in excess of one hundred thousand inhabitants, and that even this restriction is subject to an exception in favor of the issue of bonds to provide for a supply of water. The restriction is that no city of more than one hundred thousand inhabitants shall incur an indebtedness to an amount exceeding ten per centum of the assessed valuation of its real estate, and that all indebtedness in excess of such limitation shall be void, “ except as herein otherwise provided.” An exception is thereafter provided to the restriction thus imposed, in favor of the issue of bonds for the expense of procuring a water supply for such city and its inhabitants, and to this exception is attached the proviso that the term of the bonds so issued shall not exceed twenty years. It is plain that the exception cannot be wider in its application than the restriction itself, nor the proviso wider than the exception to which it is attached.

It was unnecessary to provide an exception in favor of a water supply for the case of cities of less than one hundred thousand inhabitants, because no restriction was laid upon such cities in respect to any indebtedness for municipal purposes; and equally unnecessary to provide an exception in behalf of cities of more than one hundred thousand inhabitants, except in case where the total indebtedness of such city, including that to be incurred for the purpose mentioned, would exceed the limit prescribed.

This construction of the constitutional provision in question, taken as a whole, gains support from a consideration of the history of the successive enactment of its several parts. By the Constitution of 1846 (art. 8, § 9), it was made the duty of the legislature to restrict the power of cities in respect to borrowing money, contracting .debts and loaning their credit, but no limit was set to such power by the Constitution itself. A brief section, numbered 11, was added to article 8 by the amendment of 1874. It consisted of the first two sentences of the present section LI and forbade any city to loan its money or credit to any individual association or corporation or to incur any indebtedness, except for city purposes. All the remainder of section 11 was added by the amendment of 1884, and it contains the only provisions of our present Constitution in respect to the amount of debt to be incurred by any of the cities of the State. Its restrictions, as we have seen, apply to cities of more than a specified population ; it provides an exception to those restrictions in the case of a debt to be incurred for a specified purpose, and it prescribes the term of the bonds which may be issued in the exceptional case provided for.

If these views embody the correct construction of the constitutional provisions which we have been considering, then the city of Rochester, although (by reason of its population) subject to the restriction imposed by the amendment of 1884, is not required to avail itself of the exception thereto,.for the reason that its total indebtedness, with the addition of the bonds in question, does not reach the limit of the restriction, and, therefore, the proviso in respect to the term of the bonds to be issued has no application to-this case.

We thus reach the conclusion that the act of the legislature, under which the bonds in question were issued, is not violative of any provision of the Constitution, but is valid; and that the contract of the defendant to purchase bonds issued under its provision is binding upon him.

Judgment should be directed for the plaintiff on the submission, with costs.

Macomber and Lewis, JJ., concurred.

Judgment ordered for the plaintiff on the submission.


source: Caselaw Access Project

license: Public Domain

text:
    THE DELAWARE, LACKAWANNA AND WESTERN RAILROAD COMPANY, Appellant, v. THE CITY OF BUFFALO and Another, Respondents.

      Railroads — crossing a city street by a bridge— the authority to do so is derived from the statute, and not from the city — assent of the city — it does not decide the question whether the railroad has unnecessarily impaired the usefulness of the street crossed— Laws of 1850, chap. 140, sec. 28, sub. 5.
    In an action brought by a railroad company to restrain the city of Buffalo and its street commissioner from removing a solid abutment and pier, which stood in a street ninety-nine feet wide and supported a bridge carrying the railroad tracks, it appeared that the structure was erected in 1882 by the plaintiffs lessor under a permission, by the terms of which the city, by its common council, required a clear roadway of twenty-eight feet, and, further, that the crossing should be built subject to the approval of the city engineer.
    This resolution was never rescinded, but two months later the city by resolution instructed the city engineer to notify the company that the span must be sixty-six feet, and a month later the common council passed a further resolution which, in effect, required the company to span the whole width of the street. No other resolution was passed, but a conference was had which resulted in a consent by the city engineer to the bridge as constructed.

      This construction was such that, beginning on the easterly side of the street, there was first an opening of fifteen feet, next a pier seven feet wide, then a roadway of forty-four feet, and then a solid abutment of thirty-four feet.
    The trial court, principally upon the ground that the city had no right to authorize an obstruction on a street, dismissed the complaint.

      Held, that this was improper.
    That authority to carry the railroad across the street was not derived from the city but from the general railroad act (chap. 140 of the Laws of 1850, § 28, sub. 5), although the assent of the corporation was by the act made necessary.
    That where, as in the present case, that assent had been given, the right of the corporation became, as to the city, absolute and irrevocable.
    That the language of the general railroad act implied that the public use of the highway crossed might be to some extent obstructed, the railroad company' being required to restore the street “to its former state, or to such state as not unnecessarily to have impaired its'usefulness.”
    That the question whether the bridge as constructed did unnecessarily impair the usefulness of the highway was not removed from the case by the consent of the city to its construction, and was a question properly to be determined by the court.
    Appeal by the plaintiff, the Delaware, Lackawanna and Western Railroad Company, from a judgment of the Supreme Court, entered, after a trial before the court at the Erie Special Term, in the office of the clerk of the county of Erie on the 31st day of December, 1891, dismissing its complaint and vacating a preliminary injunction, with costs."
    This action was brought against the city of Buffalo and Henry Quinn, its street commissioner.

      J. G. MiTburn, for the appellant.

      W. Jb\ Mackey, for the respondents.
   Dwight, P. J.:

The action was to restrain the defendants from removing an abutment and a pier of the bridge which carried the tracks of the plaintiff’s railroad across Main street in the northern part of the city of Buffalo — otherwise spoken of in the case as North Buffalo and Buffalo Plains. The road was located and constructed in the years 1880-1882 by the New York, Lackawanna and Western Railway Company, a corporation duly organized under the general railroad act of this State, and in 1882 was leased by that company to the plaintiff, which has ever since been in possession of and operating the same. In October, 1881, the plaintiff’s lessor obtained the assent of the city of Buffalo, by resolution of the common council thereof, duly adopted and approved, to the construction of its road on its located route across many streets of the city, which are named in the resolution, including Main street. The resolution provided, among other things, that the crossing of Main street should be by bridge, leaving a clear roadway underneath of not less than twelve feet in height and twenty-eight feet wide in the clear; it also contained the provision that all crossings should be built subject to the approval of the city engineer.

Under the consent thus given the plaintiff’s lessor was, in December, 1881, proceeding to construct its crossing over Main street when the city engineer objected that the minimum width of twenty-eight feet of roadway permitted by the resolution of the common council was not sufficient to accommodate the travel on the street, and he communicated his objection to the engineer of the railroad company and to the common council of the city. Thereupon the common council, by resolution of December 12, 1881, instructed the city engineer “ to notify the company that they must put a span at that point of not less than 66 feet wide,” and on the 16th day of January, 1882, resolved “that this council will not receive, entertain or act upon any petition or request of said railroad company until the agents of said company pledge themselves to cross Main street at Buffalo Plains with a span of the full width of the street.” These resolutions were communicated to the engineer and other officials of the railroad company, and thereafter in January, 1882, a conference was held between various officials of the city and of the railroad company, respectively, including the engineers of both. At that conference it was proposed on the part of the city, and either by, or with the assent of, the city engineer, that (in the language of the finding) “ the company should modify its plans for such crossing so that the same should be constructed as it was after-wards actually constructed. * * * And that said railway company did thereupon proceed to construct such crossing in accordance with the plans so modified, with the approval of said city engineer.” -The court also made a separate finding as follows: “ That the said crossing over Main street was so located and constructed with the approval of the city engineer of such city.”

Main street, at the point of the crossing in question, is ninety-nine feet wide. The actual construction of the bridge, according to the modified plans adopted as above mentioned, embraced a pier seven feet thick, of which the west face is twenty-two feet inside of the easterly line of the street, and an abutment, backed by a solid embankment, the east face of which is thirty-four feet inside of the westerly line of the street. This left two openings for road-way and sidewalk, respectively, one of forty-four feet, and the other of fifteen feet in width. ,

It was upon findings which embraced the foregoing facts that the learned court at Special Term based its conclusions of law, which resulted in the dismissal of the plaintiff’s complaint, to the effect (1) that the common council of Buffalo had no authority under its charter to grant permission to the plaintiff, or its lessor, to erect or maintain the abutment and pier, or any other permanent structures in Main street, upon which it might erect a bridge; and (2) that such permission as was granted to plaintiff’s lessor by resolution of October 10, 1881, was rescinded by the resolutions above mentioned of December 12, 1881, and January 16, 1882.

"We do not think that either of these conclusions of law is well founded. It is the first of them to which the argument of the opinion below is chiefly addressed, and which is mainly relied upon by counsel for the respondent in support of the judgment. Both of these arguments seem to proceed upon the assumption that the power to authorize the crossing of the streets of a city by the tracks of á railroad rests with the municipality itself; that the right to make such a crossing is conferred by the city, and that the railroad company can acquire no greater right than the city can confer. But this is not the case. It is the legislature alone that has the power to confer such rights in the streets of cities, as in the other highways of the State, and over them, so far as public rights alone are concerned, the control of the legislature is supreme. (The People v. Kerr, 27 N. Y., 188; Story v. N. Y. El. R. R. Co., 90 id., 122.) Accordingly the right to construct its road across any city street which the route of its road may intersect, is conferred by the general railroad act upon every railroad company duly organized under its provisions. The provision in question is as follows: “ Every corporation formed under this act shall * * * have power to construct their road across * * * any * * ' * street * * * which, the route of its road shall intersect; * * * but the company shall restore the * * * street * * * thus intersected * * * to its former state, or to such state as not unnecessarily to have impaired its usefulness. . * * * Nothing in this act contained shall be construed to authorize * * * the construction of any railroad not already located * * * across any street in any city without the assent of the corporation of such city.” (Laws of 1850, chap. 140, § 28, sub. 5.) There was also in the special act of 1870 (chap. 519, tit. 3, § 19),-for the revision of the charter of Buffalo, provision for the mode in which the above-mentioned assent of the corporation should be given, as follows: “ The common council, by a vote of two-thirds of all of its members elected, may permit the track of a railroad to be laid in, along or across any street or public ground.”

Thus it appears that the plaintiff’s lessor did not derive its right to cross Main street with its tracks,, from the city of Buffalo, but from the State of New York; and that it took this right subject only to the condition of obtaining the assent of the city of Buffalo by the vote of two-thirds of its common council, and to the duty of restoring the street to a state of usefulness not unnecessarily impaired.

In the cases where the rule has been so strongly enforced, that a municipality has no authority to create or permit a permanent obstruction to the use of its streets or highways, there will be found to have been an absence of legislation conferring such authority. Such are the numerous cases of which Callanan v. Gilman (107 N. Y., 365), and Cohen v. The Mayor (113 id., 532), are late and prominent examples, in which it has been held that a municipality has no authority to create or permit a nuisance, and that any permanent or habitual obstruction of a public street is a public nuisance. But no one will contend that any obstruction to a highway authorized by the legislature isa nuisance, nor that the legislature may not authorize such obstruction where no private interest is invaded, even to the extent of compelling the discontinuance of the use of the highway as such. (People v. Kerr, supra.)

These considerations are important as bearing upon both of the conclusions - of law upon which, as we have seen, the judgment of the Special Term was based. Because, first, the right being con-■f erred by act of the legislature is'subject to no limitations except those prescribed by that act; and, second, being conferred, so far as the city is concerned, only on condition of the consent of the ■common council, it became absolute when that consent was given, and was not subject to revocation by any authority short of that by which it was conferred. The legislature confers the right subject to the assent of the city; that assent being obtained the right becomes an absolute one, conferred by the legislature, and not by the city, and it cannot be revoked by any act of the latter.

But, further, the language of the provision of the general railroad act which prescribes the manner in which the right shall be exercised, necessarily implies that the public use of the highway crossed may be to some extent obstructed, and its usefulness to some extent impaired. The requirement is that the street shall be restored to its former state, “ or to such state as not unnecessarily to have impaired its usefulness.” It is not, therefore, every obstruction to the easement of the local public in the street by the construction of a railroad across it, which becomes ipso facto a public nuisance; but ■only such an obstruction as is unnecessary to the exercise of the more important easement of the general public in the railroad to be constructed. (People v. The N. Y. C. and H. R. R. R. Co., 14 N. Y., 302; People v. N. Y., N. H. and H. R. R. Co., 89 id., 266; Post v. W. S. R. R. Co., 123 id., 580.)

As we have seen from the findings of the court at Special Term, the consent of the city was originally, given to the construction of the ■crossing in question by a bridge, leaving a clear road-way beneath it of not less than twenty-eight feet in width, by a resolution of the common ■council, which further prescribed that the crossing should be built .subject to the approval of the city engineer. This officer having •objected that the proposed width of road-way of twenty-eight feet was insufficient, the common council adopted two other resolutions which, while not purporting to revoke the consent already given, •successively proposed two other plans for the construction of the bridge. But it was subsequent to the adoption of both of these resolutions that the plan actually and finally employed was agreed upon between the officers of the railroad company, and “ the city •engineer and the street committee of the common council of Buffalo,” npon which plan the construction of the bridge was actually proceeded with and completed as it stands to-day; and the court expressly finds that this construction of the bridge was with the' approval of the city engineer.

We think the only question of fact which was open for litigation in this case was whether the bridge, as constructed, did unnecessarily impair the usefulness of the highway over which it passed. That question was not foreclosed by the consent of the common council. The two requirements of the statute are independent of each other There must be not only the consent of the city to a crossing, but a. construction of the crossing in such manner as not unnecessarily to impair the usefulness of the highway.

This question was not tried, and there was no finding on the. subject.

We think there was error in the conclusions of law at Special Term for which the judgment of that court should be reversed and. a new trial granted.

Macomber and Lewis, JJ., concurred.

Judgment appealed from reversed and a new trial granted, witli costs of the appeal to abide the final award of costs.


text:
    EDWARD W. JOHNSON, Respondent, v. ELIZABETH B. STRONG and Others, Appellants, Impleaded with Others, Dependants.

      Foreclosure of an executory contract to sell real estate — relative rights of assignee of contract, of mortgagee and of judgment-creditor — possession of a third party — how far it is notice to a grantee.

    In October, 1889, W. L. and J. B. Lewis entered into an executory contract for the sale of certain lands with Daniel W. Pierce, who then went into possession of the lands, and so remained until October, 1890, when he abandoned the land and the contract. In June, 1890, the Lewises assigned all their interest in the contract to a bank, and in August of that year gave for value a mortgage upon the same premises to Elizabeth W. Strong.
    Mrs. Strong’s agent inquired of the Lewises as to the possession of Pierce; was informed of the contract, and that it had been abandoned by Pierce, but not being informed of the assignment of the contract by the Lewises to the bank, supposed the title to be clear.

      In October, 1890, tbe Lewises resumed possession, and thereafter a judgment was recovered against them, which was a lien on all their real estate in the county where the premises in question were situated. Subsequently the bank assigned its rights.under the contract to Edward W. Johnson.
    In an action by Johnson to foreclose the equity of the vendee under the contract, because of Pierce’s failure to perform, it was

      Held, that the lien of Mrs. Strong was superior to that of the plaintiff.
    That the possession of Pierce was only notice of his contract, and of his rights under it, and was not notice of the rights of the bank under its assignment.
    That possession in a third' party is notice to the grantee of all the rights of the party in possession so far as diligent inquiry suggested by the possession would disclose them.
    That there was nothing in the possession of Pierce to suggest that the vendors had assigned the contract, and Pierce did not know the fact.
    That the judgment against the Lewises, although recovered before the bank assigned to the plaintiff, was subject to the interest of the bank, which by its assignment passed to the plaintiff.
    Appeal by tbe defendants,'William W. Weston, Orrin Weston, Abijab Weston and Ebzabetb B. Strong, from a judgment of tbe Supreme Court, entered after a trial before a referee in tbe office of tbe clerk of tbe county of Cattaraugus on tbe 8tb day of December, 1891, directing a sale of tbe premises described in tbe complaint and a distribution of tbe proceeds thereof.
    Tbe complaint alleged that on tbe 12th day of October, 1889, tbe defendants William L. and James B. Lewis made, executed and delivered 'to tbe defendant Daniel W. Pierce their written contract, in and by tbe terms of which they undertook and agreed to sell and convey to tbe said Pierce a tract or parcel of land situate in tbe village of Olean, county of Cattaraugus, New York.
    Said contract further provided that upon receiving certain payments tbe said W. L. and J. B. Lewis should execute and deliver to tbe said Pierce a warranty deed of said premises, they then being the owners thereof, and that the said Pierce should have the possession of said premises. This contract was also executed by Pierce, who entered into tbe possession of said premises under said contract.
    On tbe 22d day of June, 1890, the said W. L. and J. B. Lewis duly assigned and transferred, in writing, tbe said contract and all their interests therein, and in and to tbe premises therein described, to tbe Exchange National Bank of Olean, N. Y., a corporation duly incorporated under tbe banking laws of tbe United States. Such transfer was so made, although absolute on its face, for tbe purpose of securing said bank upon and for all promissory notes or other obligations for which the said William L. and James B. Lewis might then be or thereafter become liable for to said bank, and upon all notes made by them or renewals thereof which the said bank then held or might thereafter hold.
    Thereafter, and before the commencement of this action, the said bank, for value received, by a written instrument, did assign and transfer to this plaintiff its said interest in said contract and the said lands, and the plaintiff is now the owner and holder thereof. At the time of said transfer to said bank the said bank held divers promissory notes made by the said W. L. and J. B. Lewis, under their firm name of “W. L. Lewis & Bro.,” amounting to one thousand dollars or over, and among other notes was one for $225, payable to the order of J. F. Shea, and one for $225, payable to the order of E. W. Johnson, which were from time to time renewed by said bank under the agreement with said Lewises that said contract should be held as security therefor until the 30th day of November, 1890, when they became due and payable, whereupon this plaintiff paid said notes to said bank for the use and benefit of said W. L. and J. B. Lewis, and also agreed to pay said bank a certain note made by said Lewises to the order of Frank B. Page for the sum of seventy-five dollars, and such other notes as the bank might hold which were not paid by the said Lewises. That said seventy-five dollar note has not been paid.
    Plaintiff further alleged that the said defendant Pierce has failed to pay the sum of $100 and the interest upon $1,415 for one year, which became due by the terms of said contract on the 12th day of October, 1890, and the same remains due and unpaid upon said contract. That no proceedings have been had at law or otherwise for the collection of the same.
    On the trial the defendants offered in evidence the judgment-rolls in the following actions in the Supreme Court, which were filed in the clerk’s office of Cattaraugus county and the judgments therein docketed at the time of their recovery: One in an action brought by Benjamin U. Taylor, as plaintiff against William L. Lewis and James B. Lewis, defendants, wherein the said plaintiff recovered a judgment against the said defendants on the 4th day of September, 1890, for the sum of $150.44, damages and costs; another in an action, brought by Rufus L. "Wright, as plaintiff against the same defendants, wherein the said plaintiff recovered a judgment against the said defendants on the 25th day of November, 1890, for $123.02, damages and costs; another in an action brought by Jason S. Bishop,'as plaintiff against the same defendants, wherein the said plaintiff recovered a judgment against the said defendants on the 27th day of November, 1890, for $175.25; another in an action brought by William A. Wright, as plaintiff against the same defendants, wherein the plaintiff recovered a judgment against the defendants on the 2d day of December, 1590, for the sum of $83.10; another in an action wherein William. W. Weston, Orrin Weston and Abijah Weston were plaintiffs against the same defendants^ wherein the plaintiffs recovered of the defendants on the 3d day of December, 1890, a judgment for $139.28, damages and costs; another in an action wherein Fred D. Mucky was plaintiff against the same defendants, wherein the plaintiff recovered a judgment on the 4th day of December, 1890, for $84.41; another in an action wherein Mills W. Barse, De Witt C. Le Fevre, Henry Gale and Wilbur F. Burlingham were plaintiffs against the same defendants, wherein the plaintiffs recovered a judgment against the defendants on the 15th day of December, 1890, for $583.47, damages and costs; another in an action wherein De Witt C. Conklin and William H. Conklin were plaintiffs against the. same defendants, wherein the plaintiffs recovered a judgment on the 31st .day of December, 1890, for $108.92.

      J. H. Waring, for the appellants.

      G. 8. Gary, for the respondent.
   Dwight, P. J.:

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

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

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

None of the authorities cited by counsel for either party on this appeal carry the doctrine of constructive notice by possession beyond that stated above. (Tuttle v. Jackson, 6 Wend., 213; Paige v. Waring, 16 N. Y., 463; Moyer v. Hinman, 13 id., 184; Ellis v. Horrman, 90 id., 466.)

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

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

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

Macomber and Lewis, JJ., concurred.

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


author: Macomber, J.:

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    SARAH C. d’AUTREMONT and Others, as Executors of CHARLES d’AUTREMONT, Deceased, Plaintiffs, v. THE FIRE ASSOCIATION OF PHILADELPHIA, Defendant.

      Mre insurance — setting fire by the insured, while insane, to his property — an action-is maintainable on the policy.

    Charles d’Autremont took out a policy of insurance upon certain buildings owned by him and subsequently became insane, and while in that condition set fire to the insured buildings, he himself perishing in the flames.
    In an action upon the policy brought by his executors to recover the amount of-the loss thereunder:

      Held, that they were entitled to recover.
    That, in order to avoid a policy the act of the insured must be so grossly negligent as to indicate an intention to commit a fraud upon the rights of the insurer.
    That an insane person was incapable of forming a fraudulent or wrongful design, to destroy his own property with a view of defrauding the insurer.

      Submission of a controversy between Sarah C. d’Autremont, Mary d’Autremont, Jr., and Charles d’Autremont, as executors of Charles d’Autremont, deceased, as plaintiffs, and the Fire Association of Philadelphia, as defendant, upon an agreed statement of facts, under section 1279 of the Code of Civil Procedure.

      Richardson <& Robins, for the plaintiff.

      William F. Gogswell, for the defendant.
   Macomber, J.:

Charles d’Autremont, the plaintiff’s testator, received from the defendant, which is a foreign corporation, on the 15th day of June, 1890, a policy of fire insurance against loss or damage to property of the insured to the amount of $2,000 on buildings and their contents, owned by the insured and located in Angelica, N. Y.; the sum of $800 thereof was upon the insured’s dwelling-house; $700 on a frame barn and the attachments thereto; $4'25 on farm produce, and $75 on a frame hog-house and granary. While this policy was in force the frame barn and attachments thereto were destroyed by fire, together with certain farm produce therein, and the adjacent liog-house and granary were somewhat injured by fire. The total loss sustained by the insured was the sum of $1,017.

The submission contains certain facts in regard to a claim made by the defendant for diminution of the amount of damages by reason of an agreement relating to a permission given by the defendant that the premises might be vacated.' But inasmuch as no point is made on this subject in the brief of the learned counsel for the defendant, I shall assume that the amount of damages, if the plaintiff is entitled to recover anything, is the sum stated above.

After the policy had been issued by the defendant to plaintiffs’ testator, and prior to the burning of the property insured, which was March 30, 1891, the insured became insane, and while in that condition, and being so far mentally disordered as not to understand that the act he'was about to commit would cause the destruction of his property or of his own life, and while acting under the influence of some insane impulse which he was wholly unable to resist, he set fire to these buildings, and himself perished therein.

The question, therefore, presented for our determination, is whether the personal representatives of the insured can recover upon this policy when the loss was caused solely by the act of the insured himself.

It is well understood that a lunatic is not liable criminally for his unlawful acts, for the reason that he is incapable of forming a purpose or having an intent which is an essential element in the commission of crime under our laws. (Penal Code, § 20.) It is equally well established, on the other hand, that an insane person is responsible, civilly, for any tort committed by him where a wrongful intent is not an essential thing to be proved. Under this head comes the class of negligence cases where carelessness or ignorance are the foundations of the action. It has been decided in the courts of this State that, in such a case as that, the plea of insanity is not effective. (Krom v. Schoonmaker, 3 Barb., 649.)

In actions upon policies to recover damages occasioned by loss through fire, it is not a defense which the insurance company may avail itself of, to show that the loss was caused by the carelessness, negligence or want 'of care of the insured, or any of his agents or servants. The insurance company, in order to establish such a defense, must go farther and show that the act was so grossly negligent as to indicate an intention to commit a fraud upon the rights of the insurer. The simple fact of the existence of negligence in either the insured or his agents, however great the degree, provided it does not reach the point of a wrongful or fraudulent purpose, or a wanton disregard of others, is not a defense to a policy of fire insurance. (Gates v. M. C. M. Ins. Co., 5 N. Y., 469.)

I am unable to see that an insane person can form a fraudulent or wrongful design in the destruction of his own property so as to defeat a policy of insurance thereon any more than I can see that he can form a criminal intent in the commission of crime.

The learned counsel for the defendant cites the case of Cross v. Kent (32 Md., 581), where it was held, in an action against a party for setting fire to a barn, that evidence of his lunacy was not admissible in mitigation of compensatory damages. But, as it seems to me, that case falls within the general doctrine stated above, that an insane person’s estate may be called upon to respond to his acts which are simply tortious.

On the whole, I think that the question submitted to us should be answered in favor of the plaintiffs. (Karow v. Cort. Ins. Co., 57 Wis., 56.)

It follows that the plaintiffs should recover the sum of $1,017 and interest thereon from August 10, 1891.

Dwight, P. J., and Lewis, J., concurred.

Judgment ordered for the plaintiffs on the submission, with costs.


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    In the Matter of the Probate of the Will of JOSEPH PEREGO, Deceased.

      Will — a deaf and dumb person may make a will.

    Upon an appeal from a decree of a Surrogate’s Court refusing to admit to probate the will of Joseph Perego, it appeared that Perego was over sixty years old and had been deaf, and substantially dumb, from early childhood; that he had been accustomed to communicate his ideas by gestures and sometimes by writing, and that he was, to some extent, able to understand persons by watching the motions of their lips.
    The person who drew the will had known Perego for years, and had frequently conversed with him by signs, and at the time of the execution of the alleged will he was told by Perego, by signs, that he wished to make a will and to leave his property to his sister, with whom he lived. The scrivener then showed him a printed form of a will, afterwards went away and filled it out, returned and gave the will to Perego, who apparently read it with care and indicated that it was satisfactory.
    Upon its execution the scrivener, by signs, asked Perego the customary questions and received what apparently were proper answers. The will was apparently properly executed.

      Held, that it was error to reject the will, and that the facts should be submitted to a jury under section 2588 of the Code of Civil Procedure.
    That a deaf and dumb man may make a will provided the statutory formalities are observed in their spirit and intent, and so far as is practicable under the existing conditions.
    Appeal by Rhoda Francisco and Norman B. Shaw, proponents of the will of Joseph Perego, deceased, from a decree, entered in the office of the surrogate of Ontario county on the 24th day of December, 1891, and from that part thereof which states that the written instrument offered for probate “ was not executed in conformity with the statutes of the State of New York respecting the execution of wills, and that the said Joseph Perego did not publish and declare the same to be his last will and testament, nor did he request the witnesses thereto to sign it as such witnesses, and that said written instrument so offered for probate as the last will and testament of said Joseph Perego is null and void, and that the probate of the same be and it is hereby denied.”

      T. M. Howell, for the proponents, appellants.

      8. GootMng and J. P. Faurot, for the contestants, respondents.
   Dwight, P. J.:

No question was made of the testamentary capacity of the decedent, nor that the alleged will was duly executed by him. The questions of fact upon which there was some conflict of evidence, and in respect to which the evidence was held by the learned surrogate to be insufficient to warrant the granting of probate to the will, related (1) to the due publication thereof by the deceased as his will; and (2) to the request by the deceased that the witnesses should attach their names as subscribing witnesses thereto.

The decedent was an unmarried man of upwards of sixty years of age, and had been deaf, and substantially dumb, from early childhood. He had been accustomed to communicate his ideas mainly by signs and gestures, constituting a species of pantomime, and sometimes by writing on a slate or pieces of paper, and he was able to understand, to some extent, communications made to him by the motion of the lips of persons who spoke to him. The scrivener who drew his will • — ■ a schoolmaster by profession, and, as his testimony taken on commission indicates, a man of intelligence — had known him for several years, and had frequently conversed with him by means of signs previous to the interviews in reference to his will. He was able to read print and some writing, and to write himself, to some extent. Shortly before drawing his will the scrivener had received information from the sister of the testator that the latter desired to have him draw his will; and he visited him at his sister’s house, where he had been living for a number of years, taking with him a printed form of a will, which he exhibited to the testator, and was informed by him by means of intelligible signs that lie wished him to draw his will, and that he desired to give his property to the sister with whom he was living. The scrivener went away and filled out the printed form accordingly, inserting an additional provision for the contingency of his sister’s not surviving him ; and, when he came again, exhibited the draft of the will to the testator, who examined it closely for several minutes, apparently reading it with care, and plainly indicated by signs that it- was as he desired his will to be. The scrivener showed him' where his name should be signed, and called his attention to the attestation clause, which was printed on the same page with the will, of all of which the testator signified his understanding. The will was executed the next day by the testator signing his full name thereto in presence of the scrivener and three other witnesses, all four of whom signed the attestation clause in his presence, and in presence of each other. The scrivener testifies to the signs by means of which he put the question to the testator, whether the paper thus executed was his will, and the affirmative response thereto; and another of the subscribing witnesses describes the unmistakable dumb show by which the testator invited the witnesses to subscribe their names as such to the will, and thanked them for the service after it was performed. The evidence in both of these respects was, in a manner, contradicted by the other two subscribing witnesses, but mainly to the effect that they either failed to observe and comprehend, or else to remember the matters referred to.

A man is not to be denied the right to make a testamentary disposition of his property on account of defect of speech and hearing. And a deaf and dumb man may make a will if only the formalities prescribed by the statute are observed in their spirit and intent, and in such manner as is practicable under the conditions existing. (Matter of Beckett, 103 N. Y., 167, 174; Matter of Stillman, 29 N. Y. St. Rep., 213, and the cases cited.)

Ve desire not to dwell upon the facts in this case in such a Way as to prejudice .their future consideration, and we, therefore, state, without further discussion, that the result of our examination of the case is to raise serious doubt whether the questions of fact above mentioned were determined in accordance with the due weight of the evidence as it appears in the record.

There was, undoubtedly, a conflict of evidence, and we are unable to concur with the learned surrogate in his findings of fact thereupon. This brings the case within the provisions of section 2588 of the Code and calls for a submission of the questions of fact to a jury.

The decree of the surrogate should be reversed, on the facts, and a trial by jury ordered of the material questions of fact arising upon the issues between the parties, such trial to be had in the Circuit Court in Ontario county.

Maoomber and Lewis, JJ., concurred.

Decree of surrogate.of Ontario county appealed from reversed on the facts, and a jury trial ordered of the material.questions of fact arising upon the issues between the parties; such trial to be had in the Circuit Court of Ontario county. Issues to be settled (if required), by the presiding justice of this court; costs of this appeal to abide the final award of costs.


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    THE PEOPLE OF THE STATE OF NEW YORK ex rel. LOTT FARNSWORTH, Respondent, v. THE BOARD OF SUPERVISORS OF THE COUNTY OF ORLEANS, Appellant.

      Board of supervisors — town meetings held by election districts under section 26 of chapter 482 of 1875 — what business must be transacted — only one town meeting is contemplated in each election district.

    The legislature, by section 26 of chapter 482 of the Laws of 1875, empowered boards of supervisors, upon the application of.a town, “to authorize the annual town meetings, and all special town meetings, in such town to be held by election districts, and to prescribe the manner in which the town business shall be conducted in such districts.”
    Upon the application of the town of Murray the Board of Supervisors of Orleans County, in 1877, passed an act to enable the electors of that town ‘ ‘ to hold their town elections in the separate election districts of said town,” which provided for holding the town elections, of officers required to be elected by ballot, in the several election districts; and further provided for the election of all other town officers, and for the transaction of all other town business, at one town meeting to be held only in district number two.

      At an alleged town meeting of tlie town of Murray, held under this act, money was appropriated for a site and the erection of a town house; and, the Board of Supervisors of Orleans County having included the amount in the town tax levy a taxpayer of the town obtained a writ of peremptory mandamus commanding the board of supervisors to rescind its action.
    Upon an appeal from this order;

      Held, that this legislative act of the board of supervisors was void, and was not within the powers conferred upon it by chapter 482 of the Laws of 1875.
    That " town elections ” were not synonymous with “ town meetings,” such elections constituting but a small part of the town business.
    That the legislature intended, where boards of supervisors proceeded under the act of 1875, that there should be in each election district but one town meeting at which the whole business of the town should he transacted.
    That the effect of the act of the board of supervisors in this case would be that electors in a district other than number two would have to attend upon the same day two town meetings which might be at places far distant from each other.
    Appeal by tlie defendant, tlie Board of Supervisors of tlie County of Orleans, from an order of tbe Supreme Court, entered in tlie office of tlie clerk of tlie county of Orleans on'tlie 17th day of December, 1891, granting a writ of peremptory mandamus directed to tlie defendants, requiring them to revoke a resolution to raise $1,200 by tax upon the property of the taxpayers of the town of Murray, and also from the allowance of said writ on the 11th day of December, 1891, and also from the writ itself which was served upon the defendants on the 26th day of December, 1891.

      J. JT. Thompson, for the appellant.

      I 8. Signor, for the respondent.
   Dwight, P. J.:

The writ commanded the defendant to reconsider and rescind the action taken at its annual meeting in the year of 1891, by which there was included in the tax levy of the town of Murray for the year 1891 the sum of $1,200, for the purchase of a site for, and the erection of a town-house in that town, and to strike that sum from the tax levy.

The action in question, on the part of the board of supervisors, was in compliance with supposed action of the town of Murray, taken by resolution at a supposed town meeting held in one of the election districts of the town on the 7th day of April, 1891, whereby the sum named' was alleged to have been appropriated for the purpose above mentioned. The contention of the relator, who is a taxpayer of the town of Murray, is that the alleged town meeting was not legally held; that the action mentioned as taken thereat was not legally taken, and that it furnished no ground for the action of the board of supervisors which is brought in question by this proceeding.

Previous to the year 1875 the town meeting in every town in this State was held as a single convocation of the electors of the town, at one place in the town appointed therefor, and all the business of the town which called for the action of the electors, including the election of all town officers, whether by ballot or otherwise, was transacted at that meeting, In the year 1875, the legislature, by chapter 482 of the laws of that year, conferred upon the boards of supervisors of ’the several counties of the State, the power, “ upon the application of any town duly made, * * . * to authorize the annual town meetings and all special town meetings in such town to be held by election districts, and to prescribe the manner in which the town business shall be conducted in such districts, and the results ascertained and recorded.” (Sec. 26 of the act above cited.)

In the year 1877, the Board of Supervisors of Orleans County, on the application of the town of Murray, passed an act entitled “An act to enable the electors of the town of Murray, Orleans county, N. Y., to hold their town elections in the separate election districts of said town.” And the act, true to its title, provided not for holding. the town meetings by election districts, nor prescribed the manner in which the town business should be conducted in such districts, but provided for holding the town elections only, and of officers required to be elected by ballot, in the several election districts, and for the election of all other town officers, and the transaction of all other business of the town at one town meeting to be held only in district number two.

We think this attempt at local legislation by the Board of Super* visors of Orleans County was nugatory and void, because it was not within.the power conferred by the act of the legislature, upon which alone it depended for its validity.

The board of supervisors is a body of strictly limited powers. It has no power of legislation, except as expressly conferred by statute. (Const., art. 3, § 23; People ex rel. Merritt v. Lawrence, 6 Hill, 244.) And any attempt by it to legislate outside the limit prescribed, by the legislature is necessarily void.

The power conferred upon the board of supervisors by the act of 1815 was, as we have seen, to authorize the annual town meetings to be held by election districts, and to prescribe the manner in which the town business should be conducted in such districts. The attempted legislation of the Orleans county board did not purport,, even by its title, to conform to the power thus conferred upon it. The term “town elections” is not synonymous with “town meetings.” The election of the town officers is only a portion, and, it may be, a comparatively unimportant portion of the business to b& done at the town meeting. When the legislature empowers the board of supervisors to authorize the holding of the town meetings, by election districts, it intends the town meetings, and not the town elections merely; and when the statute provides that the board of supervisors shall “ prescribe the manner in which the town business shall be conducted in such districts and the result ascertained and recorded,” it intends that the whole of the town business shall be transacted in the district meetings, and that the results in each of them shall be so ascertained and recorded as that they may be collated and combined in such manner as to exhibit the result of the united action of the whole body of electors of the town.

■By no other construction of the statute could its evident object and purpose be attained. The only possible object of election districts is the same in the case of town meetings as in that of general elections, viz.: The convenience of the electors. But the construction put upon the statute by the board of supervisors not only defeats this purpose, but lays a heavy and unequal burden of inconvenience upon a large portion of the electors of the town. In this case the electors of district number one, if they would avail themselves of the rights and discharge the duties of electors of the town, must, necessarily, attend two town meetings on the same day; traveling, perhaps, half the length of the town in one direction to reach the' polls of the election in the district in which they reside and where alone they are permitted to vote for officers to be elected by ballot, and, perhaps, twice the distance in the opposite direction to vote for other town officers and take part in the business of the town. The unjust discrimination against the electors of district number one involved in such an arrangement is sufficient to condemn it. It must result in the practical disfranchisement of many of their number. Of course, nothing could be further from the intention of the enabling act, and, as we have seen, the scheme is equally in violation of its terms. The enabling act authorizes provision for holding the town meetings and transacting the town business in both ■the election districts; the act of the supervisors purports to provide ■only for holding the elections of one class of town officers in both districts and for the transaction of all other business of the town meeting in one of the districts alone

The attempted legislation of the board of supervisors seems to us to be plainly without. the authority of law, and, therefore, to be invalid and of no effect.

Such being the case, the alleged town meeting held in election •district No. 2 of the town of Murray in the year 1891 was not a legal town meeting, and the action of those electors present, in voting an appropriation for a town-house, was not legally binding upon the town, and furnished no legal ground for the action of the hoard of supervisors in levying the tax in question. This conclusion is so radical that we think it unnecessary to consider other grounds of objection to the action of the board of supervisors.

The order for a peremptory writ of mcmdamus, requiring the ■defendant to reconsider and rescind that action and to strike the ,sum in question from the tax levied upon the town of Murray, must' ibe affirmed.

Maoombeb and Lewis, JL, concurred.

•Order appealed from affirmed, with costs.


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    SIDNEY B. ROBY, Appellant, v. THOMAS J. REYNOLDS, Respondent.

      Waiver — of dslay in delivery of goods.

    In an action brought to recover the price of certain sets of harness delivered by Sidney B. Roby to Thomas J. Reynolds, the latter set up a breach of warranty, and also a counter-claim for delay in delivery, and succeeded upon the counter-claim.
    Upon the trial it appeared that when the harness was ready for shipment Reynolds, went to the store of Roby, said he had not time to examine the articles, but would take them if the salesman would warrant them in every respect, and he testified that the salesman did so warrant them. The harness was accordingly sent to-Reynolds, who afterwards sent his check to Roby for nearly the whole amount of the claim, which was returned.

      Held, that these acts of Reynolds constituted a waiver of any claim for delay in-the delivery, and that a recovery upon the counter-claim was improper.
    Appeal by tbe plaintiff Sidney B. Roby from a judgment of the Comity Court of Monroe county, entered, after a trial before-the court and a jury, in the clerk’s office of Monroe county on the 24th day of December, 1891, upon a verdict for the plaintiff for-twenty-five dollars and ten cents, under which judgment the costs-were awarded to the defendant, less said sum of twenty-five dollars- and ten cents.
    It appeared upon the trial of the action, which was brought to recover for goods sold, that a check in payment therefor had been sent by Reynolds, the purchaser and defendant, to the plaintiff. Roby, who had sold the goods, and who refused to accept it because Reynolds had deducted three per cent from the purchase-price for the cash payment, which discount Roby was not willing to allow.

      E. Van VoorMs, for the appellant.

      E. A. Nash, for the respondent.
   Dwight, P. J.:

The action was to recover the sum of $160, being the agreed price of five sets of double harness sold and delivered by the plaintiff to the defendant. The answer admitted the sale and delivery of the harness, and alleged, first, as a defense, a breach of warranty of the quality of the goods; and, second, as a counter-claim, damages by reason of delay in the delivery of the goods.

The evidence showed that, some months before, the defendant had bought of the plaintiff one set of double harness, made at Clyde, and that the bargain in this case was for five sets of similar harness to be made at the same place. There was evidence on the part of the defendant which tended to show that it was warranted by the plaintiff that the harness should be in all respects like the former set, and of No. 1 oak-tanned leather; also that the plaintiff was informed at the time that the harnesses were to be used in the business of lumbering in Pennsylvania on a lot of horses which the defendant had bought in Canada, and which would be delivered in one week from that time, and that the plaintiff agreed that the harnesses should be delivered in one week. The counter-claim was for damages by reason of a delay of seven days or more in the delivery of the harnesses after the horses had .arrived. Evidence was received, under the objection of the plaintiff, tending to show that the work of five men and teams, rendered idle for want of the harnesses, was worth twenty dollars a day, and this evidence was submitted to the jury, under the exception of the plaintiff, as possible ground of a counter-claim of $140, viz., twenty dollars a day for seven days, and this was the amount of the counter-claim allowed by the jury. The verdict was for the plaintiff for twenty dollars, and the defendant had judgment for the balance of his costs, after deducting that sum.

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

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

Macomber and Lewis, JJ., concurred.

Judgment of the County Court of Monroe county appealed from reversed and a new trial granted, with costs to abide the event.


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    EMMONS M. PARKHURST, Respondent, v. THE ROCHESTER LASTING MACHINE COMPANY, Appellant.

      Jurisdiction — where it is expressly withheld by statute it ca/nnot be conferred by the defendant in any manner — an action in a County Court against a foreign coi'poration — objection talcen in the first instance upon an appeal.

    The complaint of Emmons M. Parkhurst, in an action for services brought in a County Court, alleged, and the answer of the Rochester Lasting Machine Company, the defendant, admitted, that the latter was a foreign corporation, having a branch office in Rochester, N. Y.
    Upon an appeal from a judgment in favor of the plaintiff, the objection was taken for the first time that a County Court had no jurisdiction in an action against a foreign corporation, such jurisdiction being expressly denied it.

      Meld, that the objection was valid and could be taken in the first instance upon the appeal.
    That where there was jurisdiction of the subject matter the defendant might, by ¡in appearance, give jurisdiction of the person, but that where a court was denied jurisdiction of the action by statute there was no manner in which a defendant could confer it.
    Appeal by tbe defendant, the Rochester Lasting Machine Company, from a judgment of the Monroe County Court, entered, after a trial before a referee, in the clerk’s office of Monroe county on the 15th-day of January, 1892, in favor of the plaintiff for $1,000 and costs.
    The complaint in this action alleged: “ That the defendant during such times was, and now is, a foreign corporation, organized by and under the laws of' the State of Minnesota, and has a branch and its principal place of business at Rochester, N. Y., in said county.”
    The answer admitted: “ That the plaintiff is, and at all the times mentioned in said complaint was, a resident of the county of Monroe, and that the defendant during such times was, and now is, a foreign corporation, organized by and under the lawrs of the State of Minnesota, and has a branch office for the transaction of business at Rochester, Monroe county, New York.”

      E. Van Voorhis, for the appellant.

      Irving Paine, for the respondent.
   Dwight, P. J.:

The objection to the jurisdiction of the County Court in an. action against a foreign corporation, though taken for the first time on this appeal, must be fatal to the judgment.

That the County Court has, by the statute which defines its powers, no jurisdiction of such actions is conceded; it is contended that in this case it obtained jurisdiction by the consent of the defendant, which appeared generally, and answered to the merits. The position is untenable. Consent may give jurisdiction of the person, but not of the subject-matter nor of the action. The question in this case was not of jurisdiction of the person, but of the. limitation of the power of the court. The court had no jurisdiction of the action, because it is denied jurisdiction of cmy action against-a foreign corporation.

In Burckle v. Eckhart (3 N. Y., 133), Gabotteb, J., says at. page 137: The jurisdiction of courts is conferred by law, and in no case by consent of parties. "When jurisdiction of the subject and of the person is required as a prerequisite to judicial action, a defendant may waive any irregularities in the mode by which his person is sought to be subjected to the jurisdiction of the court by a voluntary appearance. He may dispense with the service of process as he may waive any other personal privilege; but when the defendant is in court as a party, the law gives jurisdiction of the person without regard to the question whether his appearance was voluntary or by compulsion. This is all that is meant by consent giving jurisdiction of the person. * * * The residence of a defendant within the limits of the circuit * * * is a jurisdictional fact which must exist before the court can act at all, either by issuing process or accepting the appearance of the defendant. It is necessary to give jurisdiction of the cause, not of the person. In such cases, there can be no waiver.” (See, also, Heenan v. N. Y., W. S. and B. Ry. Co., 34 Hun, 602; Davidsburgh v. Knickerbocker Life Ins. Co., 90 N. Y., 526.) In the latter case DaNfokth, J., says: “ There, are, no doubt, many cases where the court having jurisdiction over the subject-matter may proceed against a defendant who voluntarily submits to its decision; but where the State prescribes conditions under which a court may act, those conditions cannot be dispensed with by litigants.”

Still more must it be impossible for litigants to dispense witli -tbe rule which prohibits the court to act at all in a given case. The cases cited by counsel for the plaintiff were actions in the Supreme Court, whose jurisdiction of the action was unquestioned, and consent gave jurisdiction of the particular defendant.

The County Court has no jurisdiction of the cause of action in this case, because it has no jurisdiction of any cause of action in any case against a foreign corporation..

The objection which, in this case, appears on the face of the complaint is fatal not only to the judgment appealed from, but to the action.

The judgment must be reversed and the complaint dismissed.

Maoombbb and Lewis, JJ., concurred.

Judgment of County Court of Monroe county appealed from reversed and the complaint dismissed, with costs.


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    J. FELIX NASSOIY, Appellant, v. DAVID H. TOMLINSON and Another, as Executors and Trustees of MARY J. T. MOOSE, Deceased, and Others, Respondents.

      Estoppel — acceptance and use of money purporting to he paid in full of a claim— when the creditor may recover the balance.

    J. Felix Nassoiy, as a 'broker, sold real estate for its owners, for which service he claimed a commission of $1,500. Elihu Ohauncey, the agent of the owners, having sent to the broker a check for $300, inclosed in a letter in which he stated that it was the broker’s “ commissions on the sale, ” the broker replied by mail that he did not know what Ohauncey meant by sending him a check for $300, and that he wanted $1,500, and afterwards saw Ohauncey and repeated his demand, which was refused.
    About six months later the broker collected the check, sent Ohauncey a receipt, "in part payment for commissions,” and brought an action for the balance of his claim.

      Held, that he was entitled to recover.
    That, under the circumstances, his application of the check in part payment of his claim did not estop him from denying that he had accepted the check as full payment.
    That no presumption that the broker consented to accept the check as full payment could arise in this case, and that without such consent there was no accord and satisfaction.

      Appeal by the plaintiff J. Felix Nassoiy from so much of and such parts of a judgment of the Supreme Court, entered, after a trial at the Niagara Circuit before the court and a jury, in the office of the clerk of the county of Niagara on the 8th day of February, 1892, as. dismissed the second cause of action set forth in the complaint.

      F. A. Dudley, for the appellant.

      J. F. Pound, for the respondents.
   Dwight, P. J.:

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

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

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

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

“ SuspeNsioN Bridge, N. Y., June 23, 1881.
“ Elihu Chauítcey, Esq.:
“ Dear Sir.— Yours of the 20tlrat band. I don’t know wbat you mean by sending me a check for $300. I want my 5 per cent commissions on the $30,000. I got you $5,000 more than you could have got anybody else get for you. Please answer at once.
“Yours truly,
(Signed.) “J. FELIX NASSOIY.”

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

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

No presumption of consent to satisfy the debt could possibly arise under these circumstances, and without such consent there was no accord and satisfaction. (Fuller v. Kemp, 40 N. Y. St. Rep., 672; McKeen v. Morse, 1 Blatch. [U. S.] Ct. App., 7; S. C., 49 Fed. Rep., 253.) The cases of Looby v. West Troy (24 Hun, 80), and Hills v. Sommer (53 id., 392), cited by counsel for the defendants, are distinguished by their facts from the case in hand, and not necessarily in conflict with the principles herein stated.

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

Macomber and Lewis, JJ., concurred.

Judgment appealed from reversed and a new trial granted as to the second cause of action stated in the complaint, with costs to abide event.


author: Dwight, P. J. :

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    THE NEW YORK, LAKE ERIE AND WESTERN RAILROAD COMPANY, Appellant, v. THE CITY OF DUNKIRK, Respondent. THE LAKE SHORE AND MICHIGAN SOUTHERN RAILWAY COMPANY, Appellant, v. THE CITY OF DUNKIRK, Respondent.

      Assessment — against a railroad for paving, proportioned to the part of the street used by it — is not unconstitutional — charter of Dunhvt'lc — what is a "majority vote of the common council ” — when an assessment becomes a claim against the owner personally — counter-claim.

    In actions brought by railroad corporations to restrain the collection of an assessment for paving a city street, it appeared that the railroads occupied about one-half of the width of the street paved.

      The city charter, under which the assessment was laid, provided that in estimating the benefit from paving upon a street where a railroad ran, the company owning the railroad should be estimated to be benefited in such proportion as its tracks and usage of said street might bear to the whole width of the street and be assessed proportionately.

      Held, that the provision was not unconstitutional as discriminating against a particular class of property.
    That the legislature had absolute authority over the subject of taxation, and that as a corporation was a creature of the statute the legislature might impose upon it burdens additional to those prescribed by its charter.
    That, upon a fair construction of the provisions of the charter of the city of Dunkirk (chap. 479 of the Laws of 1867, as amended by chapter 19 of the Laws of 1880), no publication was required of a preliminary resolution of the common council declaring an intention to pave, nor need any opportunity be given to file preliminary objections thereto, nor hearing be given to the objectors.
    The city charter provided that such an improvement should be made by a resolution adopted “ by a majority vote of the common council;’’and also directed that the mayor preside over the common council, and authorized him to vote in case of a tie. The common council being evenly divided upon the question as to whether the street should be paved, the mayor voted in favor of the resolution.

      Held, that the resolution was adopted by a majority vote of the common council.
    The city charter further provided, that in the estimate of benefits the railroad company should be deemed to be benefited by the paving “in such proportion as its tracks and usage of said street may bear to the width of the whole street.”

      Held, that the provision meant that the benefit to the railroad company should be held to bear the same proportion to the entire benefit of the improvement as the width of that portion of the street occupied by the railroad bore to the entire width of the street.
    The city charter further provided that all taxes and assessments should, after a certain time, bear interest, and that ‘(such tax, with the interest,” might be sued for and collected by the city against any person liable therefor.
    In this action, brought to restrain the collection of the assessment, the defendant in its answer set up the assessment proceedings and demanded judgment for the amount of the assessment, and recovered judgment therefor.

      Held, that, under the provision of the charter, this was proper.
    That the assessment thereby became a personal charge against the taxpryer, and ceased to be merely a lien on the property, collectible by proceedings in rem only.
    Appeal by tbe plaintiff, tbe New York, Lake Erie and Western Railroad Company, from a judgment of tbe Supreme Court, entered in the office of the clerk of tbe county of Chautauqua on the 26th day of April, 1891, upon a recovery for the defendant of $3,937.05, the complaint having been dismissed after a trial by the court at the Erie Special Term ; and also an appeal by the plaintiff, the Lake Shore and Michigan Southern Railway Company, from a judgment of tlie Supreme Court, entered in tlie office of tbe clerk of tbe county of Chautauqua on the 20th day of April, 1891, in favor of the defendant for tlie sum of $7,835.38 and costs, after a trial by the court at the Erie Special Term,
    The two above-entitled cases were decided together, and in each case the city set up in its answer certain assessment proceedings, to restrain the defendant from collecting which these actions were brought, and demanded judgment for the amount of the assessment.

      B. H. MoMillcm, for the New York, Lake Erie and Western Railroad Company, appellant.

      O. F. Brownell, for the Lake Shore and Michigan Southern Railway Company, appellant.

      W. B. Holt, for the respondent.
   Dwight, P. J. :

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

Eor the purpose of making assessments under this title tlie property * * * adjoining that part of the street so * * * paved * * * shall be taken to be the only property benefited by such improvement; * * * and in estimating the benefit from any such paving * * * or any street along which a railroad is running or using a part thereof, the company owning such railroad shall be estimated as benefited by such paving * * * in proportion as its tracks and usage of said street may bear to the width of the whole street, and be assessed for such work proportionately thereto.” (18S0, chap. 19, § 16.)

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

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

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

It is further objected that the assessment in question is invalid, because certain provisions of the charter of the defendant relating to the subject-matter were not complied with. Those provisions are found in section 1 of title 12 of that act, being chapter 479 of the Laws of 1867, as amended by chapter 19 of the Laws of 1880. The section as amended reads in part as follow :

“ Sec. 1. Whenever the common council may deem it necessary to construct a sewer in any street, to grade, pave, macadamize or plank any street or part of a street in said village it is hereby authorized to declare by resolution its intention so to do and to take all necessary steps for doing said work as provided in sections 2 and 3 of title 12, and in section 2 of title 13 of this act, and to order said work to be done and to let the contracts therefor by a majority vote of said common council.”

Several blunders occurring in this section are due to the fact tliat the enactment was in the form of an amendment to the charter of the village of Dunkirk (act 1867; chap. 479), and'that there was an attempt to consolidate certain sections of the act amended, relating to different subjects. Thus, of the amended statute, title 12 was entitled “ Construction of sewers,” and related solely to that subject, while title 13 was entitled and related solely to the grading and paving of streets.” Title 12, by its sections 1, 2 and 3, required a preliminary resolution of intention of the board of trustees, specifying the location and dimensions of the proposed sewer, to be published for two weeks in the village paper; an opportunity to every person interested to file written objections to the project and a hearing of such objections before the sewer should be ordered to be built. Title 13, in its only sections 1 and 2, contained no provision for the adoption or publication of any preliminary resolution, nor for the filing or hearing of objections, but (by section 1), gave to the board of trustees the authority to order the grading or paving of streets by the vote of two-thirds of its members ; and (by section 2) to assess the costs of such improvements according to benefits, to be determined by assessors specially appointed for that purpose. The act of 1880, which, as we have said, was a mere amendment of the act of 1867 and accomplished the transformation of the village into a city, of the president into a mayor, of the board of trustees into a common council by the mere change of reading of the several names wherever they occurred in the statute amended — undertook to consolidate the provisions in respect to the construction of sewers with those relating to the grading and paving of streets, and the result was the amended section 1 of title 12, a portion of which is last-above quoted. Some of the confusion which has arisen in this case results from this awkward manner of amendment and abbreviation ; but it is reasonably clear that sections 2 and 3 of title 12 of the village charter, if they continue in force at all under the general repealing clause of the act of 1880, continue so in force only in respect to the construction of sewers and have no application to the subject of tbe grading and paving of streets; and that tbe only provisions of tbe act of 1867 referred to in tbe amended section 1 of title 12, wbicb apply to tbe last-mentioned subject, are those of section 2 ■of title 13 of tbe act amended.

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

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

Another objection to tbe validity of tbe assessment is to tbe effect that tbe resolution ordering tbe work to be done was not adopted by a majority vote of tbe common council,” as required by the terms of section 1 of title 13 of tbe act as amended. Tbe facts upon which this objection is based are as follows: Tbe common council of tbe city of Dunkirk consisted of eight eouncilmen (title 3, § 2); tbe mayor presides at'their meetings, and is entitled to a vote when there is a tie in the vote of tbe eouncilmen (title 5, § 1); at tbe meeting of tbe common council at wbicb tbe resolution in question was adopted, all tbe eight eouncilmen were present; tbe mayor, also, was present and presided; tbe vote of the eouncilmen on tbe resolution was four in favor of, and four against its adoption, and the mayor thereupon voted in favor of the resolution and declared it adopted. We can have no doubt of the correctness of this declaration, nor that the vote thus declared was, within the meaning of the statute, “ a majority vote of the common council.”It is true the mayor is not declared to be a member of the common council, but he is its presiding officer, and in the case of a tie has a vote as such, and that vote determines the vote of the common council. So, as pointed out by counsel for the respondent, the Vice-President of the United States is not a member of the Senate, but he is its. presiding officer, and has a vote in the case of a tie. (U. S. Const., art. 1, § 3, sub. 4.) That a vote of the Senate of the United States, determined by the casting vote of the Vice-President, is a majority vote of the Senate admits of no question. The case is the same with the Senate of this State (N. Y. Const., art. 4, § I), and both are precisely parallel with the case under consideration. Each of the votes supposed, and the vote in question, is a vote of the body in which it is taken, and is determined to be the vote of a majority of that body by the casting vote of its presiding officer. The case would probably have been otherwise had the provision required the vote of a majority of the councilmen present or elected.

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

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

But it is objected that the defendant was not entitled to have an affirmative judgment on its counter-claim against the plaintiff for the amount of the assessment. The contention is that an assessment for a local improvement, as distinguished from a general tax, cannot, by any means, be made a personal charge against the taxpayer, but is only in the nature of a lien upon the specific property assessed, .and that proceedings for its collection are confined to proceedings in rem, and authorities are cited to that general effect. (Cooley on Taxation, 675; Neenan v. Smith, 50 Mo., 525, 528.)

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

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

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

Macomber and Lewis, JJ., concurred.

.Judgment in each case appealed from affirmed, wifh costs.