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1. The General Term has power to
pass upon the weight of conflicting
evidence; and, in an action, tried
by the court or a referee, it is its
duty to examine the questions of
fact presented; and, if the result is
a conviction that the findings are
not in accordance with truth, to
reverse the judgment for error of
fact and direct a new trial; no such
power is given to this court. Finch
v. Parker.


2. If there is any evidence to sustain
the facts found by a referee, his
conclusion, if the facts are capable
of the interpretation given to them
by him, is final so far as this court
is concerned; but where his con-
clusion is predicated in part upon
facts not proven, which may have
had some influence, the judgment
will be reversed, as it cannot be
determined whether those assumed
facts might not have had a con-
trolling influence. Thus, where
a referee finds various facts, from
which he finds an intent to evade
the usury laws, and some of the
material facts are unsupported by
evidence, or are against evidence,
it is an error of law, which is fatal
to the judgment, although usury
may have been predicated upon
the facts proven. Matthews v.


5. An order making an extra allow-
ance when it does not exceed the
limits prescribed by the Code is
not reviewable in this court. South-
wick v. Southwick.

4. It is the duty of the General Term
of the Supreme Court to set aside
a verdict which is against the clear
weight of evidence. Where a
judgment has been reversed and
new trial granted by that court
upon the facts, this court occupies
the same position, and the facts
are open for review; a concealment
of material facts, called for by
questions in an application for
a policy of life insurance, is as
fatal to the contract as a denial.
Smith v. Etna Life Ins. Co. 211

6. This court is not authorized to
review a judgment and reverse it
for an alleged error which does
not appear upon the record, and
is only shown by expressions in
the opinion of the court below.
Laning v. N. Y. C. R. R.

7. When a judgment is rendered by
the General Term upon a verdict
taken subject to the opinion of
that court, and a statement of
facts, with the questions or con-
clusions of law thereon, is pre-
pared, as required by section 333
(sub. 2) of the Code, and is made
part of the record, the facts pre-
sented in the statement are the
only ones which can be considered
upon appeal. If the statement is
defective in any respect, it must
be sent back to the Supreme Court
for correction. Jaycox v. Came-




An appellant will not be heard to
allege as error that which was
inserted in a judgment at his own
instance. Proestler v. Kuhn. 654

See COSTS, 1.

3. Where a witness, in answer to a
proper question which is objected
to, gives testimony not called for

by it, which is incompetent, but ASSESSMENT

no objection is made to the answer


or motion to strike it out, it cannot

be objected to upon review. Crip- 1. An order confirming the report
pen v. Morss.

of commissioners of estimate and
assessment in proceedings, under
the provisions of chapter 890,
Laws of 1869, for the widening
and straightening of Broadway,
may be set aside upon motion for
irregularity, mistake or fraud. In
re. Mayor, etc.




2. The provision in the act of 1813
($178, chap. 86, Laws of 1813),
declaring that the report of com-
missioners of estimate and assess-
ment, when confirmed, shall be
"final and conclusive," has refe-
rence to an appeal therefrom; not

to the remedy by motion to set it

3. Assessors are not personally liable
for errors or mistakes in the as-
sessment where they have juris-
diction and act within the scope
of their authority, but if they ex-
ceed their powers and act without
authority, and in contravention of
the statute prescribing and regu-
lating their duties, they are civilly
liable to any person injured by
their action. Clark v. Norton. 243

4. Assessments must be made by the
first of July, and of property and
persons in respect to the liability
as it exists upon that day. An
individual not liable upon that day
cannot be placed upon the assess-
ment roll thereafter, nor can a
person whose name is properly
upon the roll be assessed for pro-
perty subsequently acquired. Af-
ter the deposit of the roll for
examination the assessors cannot
add names thereto, or add to the
assessments of individuals other
property, or change the character
of the property assessed. Where
the roll is completed the duty of
the assessors is fully performed,
except in the matter of a review
of the assessment as made and as
permitted by statute. Although
one purchasing property after the
completion of the roll agrees to
pay the tax thereon, this confers
no jurisdiction upon the assessors
to change the assessment, nor does
it operate as a waiver of the legal
rights of the purchaser. It is a
matter resting in contract between
the parties and is to be enforced
in the usual way.


The receipt by one whose pro-
perty is sold under a void warrant,
or for an illegal tax of the surplus
arising from the sale, over the
amount of the tax and expenses,
is not a condonation or an accord
and satisfaction of the trespass. Id.

5. A substantial compliance with the
statute in the measures prelimi-
nary to the taxation of persons and
property, in all matters which are
of the substance of the procedure,
and designed for the protection of
the tax-payer, is a condition pre-
cedent to the legality and validity
of the tax. Westfall v. Preston. 349

over the persons of tax-payers, the
roll, or the subject-matter of the
assessment for the current year,
save for the purpose of reviewing
the assessments already made and
verifying the roll after such re-
view. For the purpose of verifica-
tion and delivery to the supervisor,
the roll cannot be completed until
after the time fixed for its final
review and correction, to wit, the
third Tuesday of August. An
affidavit of the assessors thereto,
made prior to that time, is a nul-
lity, and where the defect appears
upon the face of the paper by the
date of the jurat, it confers no ju-
risdiction upon the board of super-
visors to impose a tax upon per-
sons or property named therein,
or to sign a warrant to the collec-
tor; as the affidavit is made part
of the assessment roll delivered to
the collector, and the want of ju-
risdiction in the board of super-
visors is thus disclosed upon the
face of the papers, the warrant
furnishes no protection to the col-


The occupancy and use of lands
for the purpose of constructing
and maintaining ditches, as autho-
rized by the provisions of the act
appointing commissioners for
draining certain lands in the town
of Royalton, Niagara county (chap.
774, Laws of 1867), is such an in-
terference with the proprietary
interests of the owner as entitles
him to the just compensation made
necessary by the Constitution.
(Con. of State, art. 1, §6.) It sub-
jects the lands to an easement in
behalf of the public, depriving the
proprietor of the full and free en-
joyment of them. People, ex rel. v.


6. For the purpose of deposit for
inspection, the assessment roll is
to be completed on or before the
first of August, and after that time
the assessors have no jurisdiction

Nothing less than a legal title in
perpetuity will serve the purposes
of the act or the object contem-
plated. The title to the easement
can only be acquired by a grant in

proper form. It was the duty of
the commissioners, before enter-
ing upon the lands and construct-
ing the ditches, to procure a grant
from the owner, either by volun-
tary donation or for an agreed
compensation, or upon an ap-
praisal of damages as prescribed
by law.

11. But one assessment under the
act aforesaid is authorized, and
that is for the completed work,
including the land damages, and
the commissioners cannot make it
until their duties under the act
have been performed. The power
once exercised is exhausted, and
no subsequent steps can be taken
to acquire title to the easement.

13. Whether the commissioners can
proceed to acquire title and make
a new assessment, quere.

after return made. People ex rel.
v. Delaney.



10. It is only for an improvement See EVIDENCE, 18.
lawfully made, and for work done
and expenses incurred, as author-
ized by law, that an assessment
can lawfully be levied and the
property of the citizen taxed. Id.

12. Where, therefore, without the
procurement of a grant of the
easement in any of the prescribed
modes, the commissioners entered
upon lands, constructed ditches,
estimated and assessed the costs
of constructing, and apportioned
the same among the owners of the
lands benefited,-Held, that the 1.
assessment and all subsequent pro-
ceedings were void.

14. A departure by assessors from
the standard fixed by statute for
estimating the value of property
placed upon the assessment roll
cannot be corrected upon certio-
rari, nor can their failure to assess
the property of a corporation, as
required, be so corrected. The
court may reverse the assessment
as made, and direct a reassess-
ment; but after the roll has been
delivered to the board of supervi-
sors and the power of the asses-
sors over it has ceased, a certiorari
should not be allowed, and, if al-
lowed, should be quashed even

4, 6, 14.








attorneys transact business as bro-
kers, they are entitled to compen-
sation as such, but cannot charge
a counsel fee for conversations
with their employers about the
business, unless by express con-
tract. Walker v. Am. Ñat. Bank.


Where a bailor instructs the
bailee not to deliver his property
to any person except upon his
written order, a delivery to the
wife of the bailor without such
order is not equivalent to a de-
livery to the husband, and does
not discharge the bailee from lia-
bility. Kowing v. Manly. 193

2. Although, where a wife has ob-
tained possession of the husband's
property from his bailee by a
fraud, the bailee could maintain
an action against both husband
and wife for the wrong, that is not
a defence to and will not bar a re-
covery by him against the bailee.




1. A bill of exchange drawn in one
State upon a person or corporation
resident in another is a foreign bill.
Com. Bank of Ky. v. Varnum. 269

2. The rule of law requiring protest
of a foreign bill of exchange is
wholly founded upon the custom
of merchants; and in an action
against a notary for neglect to
make presentment and demand,
evidence that it is the common
and universal usage at the place
where the bill was payable for
notaries' clerks to make such pre-
sentment and demand, and that
the bill in question was pre-
sented and demand of payment
made by the clerk of the defend-
ant, is proper and admissible. A
knowledge, on the part of plain-
tiff, of this usage, is not necessary
to its validity.

3. The act of 1857 (chapter 416, Laws
of 1857), in relation to commercial
paper, only abolishes grace upon
bills which are, "on their face,
payable on a specified day, or in
any number of days, or sight
thereof after the date." It does
not include bills payable upon
their face in months or years. Id.

4. A notary is not presumed to be a
lawyer who is to revise or reverse
the decision of his employer as to
the character of a bill, and as to
whether it is entitled to days of
grace or not. If, therefore, a bill
is delivered to him with directions
to make demand and protest upon
the wrong day, a right of action
does not arise against him on ac-
count of the error.

sent of the maker is a material
alteration, and destroys the note
even in the hands of an innocent
indorser for value.

it constitutes a single contract.
Benedict v. Cowden.


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See USURY, 1.

5. A memorandum upon a note made
cotemporaneously with and de-
livered with it, and intended as a
part of the contract, is a substan-
tive part of the note, and qualifies
it the same as if inserted in the
body of the instrument, and with See TERRETT v. N. Y. & B. S. S. M.
& L. Co. (Mem.), 666.



6. Where such a memorandum is an
essential part of the note, modify-

ing the obligation, the severence of 1. A party having employed a broker
it from the note without the con- to sell real estate, may, notwith-



standing, negotiate himself, and if | Manhattan Co. v. Evertsen (6 Paige,
he does so without any agency of 457), explained. Malloney v. Ho-
the broker, he is not liable to the
latter for a commission. To en-
title the broker to his commission,
he must be an efficient agent in
or the procuring cause of the con-
tract. McClave v. Paine. 561

2. Defendant, being the owner of
three parcels of land, employed
plaintiff, a real estate broker, to
negotiate sales thereof at a speci-
fied price for each. Plaintiff found
a purchaser for one, and the sale
was effected, upon which plaintiff
received his commission. Subse-
quently defendant informed the
purchaser of his ownership of and
desire to sell one of the other par-
cels, and a contract was made be-
tween them for a sale and pur-
chase of the latter parcel for the
price and upon the terms under
which plaintiff had been instructed
to sell. Plaintiff took no part in
the last sale and gave no informa-
tion to the purchaser. Held, that
he was not entitled to a commis-
sion on the sale.

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The Ruloff Case (18 N. Y., 179), ex-
plained. People v. Bennett. 142
Dox v. Backenstose (12 Wend., 542),
questioned. Marine Bank of Chi
cago v. Van Brunt.

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Jones v. N. and N. Y. Tr. Co. (50
Barb., 193), criticised and limited.
McCormick v. Penn. Cent. R. R.

Hubbell v. Von Schoening (58 Barb.,
498), reversed. Hubbell v. Schoen-

Railroad Co. v. Howard (7 Wall., 392),
explained. Vose v. Cowdrey et al.


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