Imágenes de páginas


5. An order making an extra allow-

ance when it does not exceed the
1. The General Term has power to limits prescribed by the Code is

pass upon the weight of conflicting not reviewable in this court. South-
evidence; and, in an action, tried wick v. Southwick.

by the court or a referee, it is its
duty to examine the questions of 6. This court is not authorized to
fact presented; and, if the result is review a judgment and reverse it
a conviction that the findings are for an alleged error which does
not in accordance with truth, to not appear upon the record, and
reverse the judgment for error of is only shown by expressions in
fact and direct a new trial; no such the opinion of the court below.
power is given to this court. Finch Laning v. N. Y. C. R. R. 521
v. Parker.


7. When a judgment is rendered by
2. If there is any evidence to sustain the General Term upon a verdict

the facts found by a referee, his taken subject to the opinion of
conclusion, if the facts are capable that court, and a statement of
of the interpretation given to them facts, with the questions or con-
by him, is final so far as this court clusions of law thereon, is pre-
is concerned; but where his con- pared, as required by section 333
clusion is predicated in part upon (sub. 2) of the Code, and is made
facts not proven, which may have part of the record, the facts pre-
had some influence, the judgment sented in the statement are the
will be reversed, as it cannot be only ones which can be considered
determined whether those assumed upon appeal. If the statement is
facts might not have had a con- defective in any respect, it must
trolling influence. Thus, where be sent back to the Supreme Court
a referee finds various facts, from for correction. Jaycox v. Came-
which he finds an intent to evade ron.

the usury laws, and some of the
material facts are unsupported by 8. An appellant will not be heard to
evidence, or are against evidence,

allege as error that which was
it is an error of law, which is fatal

inserted in a judgment at his own
to the judgment, although usury instance. Proestler v. Kuhn. 654
may have been predicated upon
the facts proven.

Matthews v.


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 AND TAXA-
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.

63 of commissioners of estimate and

assessment in proceedings, under
4. It is the duty of the General Term the provisions of chapter 890,
of the Supreme Court to set aside

Laws of 1869, for the widening
a verdict which is against the clear

and straightening of Broadway,
weight of evidence.

Where a

may be set aside upon motion for
judgment has been reversed and irregularity, mistake or fraud. In
new trial granted by that court

re. Mayor, etc.

upon the facts, this court occupies
the same position, and the facts 2. The provision in the act of 1813
are open for review; a concealment (S 178, chap. 86, Laws of 1813),
of material facts, called for by declaring that the report of com-
questions in an application for missioners of estimate and assess.
a policy of life insurance, is as ment, when confirmed, shall be
fatal to the contract as a denial. “ final and conclusive," has refe-
Smith v. Ætna Life Ins. Co. 211 rence to an appeal therefrom; not
6. For the purpose of deposit for 9. Nothing less than a legal title in

to the remedy by motion to set it over the persons of tax-payers, the

Id. roll, or the subject-matter of the

assessment for the current year,
3. Assessors are not personally liable save for the purpose of reviewing

for errors or mistakes in the as- the assessments already made and
sessment where they have juris- verifying the roll after such re-
diction and act within the scope view. For the purpose of verifica-
of their authority, but if they ex- tion and delivery to the supervisor,
ceed their powers and act without the roll cannot be completed until
authority, and in contravention of after the time fixed for its final
the statute prescribing and regu- review and correction, to wit, the
lating their duties, they are civilly third Tuesday of August. An
liable to any person injured by affidavit of the assessors thereto,
their action. Clark v. Norton. 243 made prior to that time, is a nul-

lity, and where the defect appears
4. Assessments must be made by the upon the face of the paper by the

first of July, and of property and date of the jurat, it confers no ju-
persons in respect to the liability risdiction upon the board of super-
as it exists upon that day. An visors to impose a tax upon per-
individual not liable upon that day sons or property named therein,
cannot be placed upon the assess- or to sign a warrant to the collec-
ment roll thereafter, nor can a tor; as the affidavit is made part
person whose name is properly of the assessment roll delivered to
upon the roll be assessed for pro- the collector, and the want of ju-
perty subsequently acquired. Af- risdiction in the board of super-
ter the deposit of the roll for visors is thus disclosed upon the
examination the assessors cannot face of the papers, the warrant
add names thereto, or add to the furnishes no protection to the col-
assessments of individuals other

property, or change the character
of the property assessed. Where 7. The receipt by, one whose pro-
the roll is completed the duty of perty is sold under a void warrant,
the assessors is fully performed, or for an illegal tax of the surplus
except in the matter of a review arising from the sale, over the
of the assessment as made and as amount of the tax and expenses,
permitted by statute. Although is not a condonation or an accord
one purchasing property after the and satisfaction of the trespass. Id.
completion of the roll agrees to
pay the tax thereon, this confers 8. The occupancy and use of lands
no jurisdiction upon the assessors for the purpose of constructing
to change the assessment, nor does and maintaining ditches, as autho-
it operate as a waiver of the legal rized by the provisions of the act
rights of the purchaser. It is a appointing commissioners for
matter resting in contract between draining certain lands in the town
the parties and is to be enforced of Royalton, Niagara county (chap.
in the usual way.

ld. 774, Laws of 1867), is such an in-

terference with the proprietary
5. A substantial compliance with the interests of the owner as entitles

statute in the measures prelimi- him to the just compensation made
nary to the taxation of persons and necessary by the Constitution.
property, in all matters which are (Con. of State, art. 1, 86.) It sub-
of the substance of the procedure, jects the lands to an easement in
and designed for the protection of behalf of the public, depriving the
the tax-payer, is a condition pre- proprietor of the full and free en-
cedent to the legality and validity joyment of them. People, ex rel. v.
of the tax. Westfall v. Preston. 349 Haines.



inspection, the assessment roll is perpetuity will serve the purposes
to be completed on or before the of the act or the object contem-
first of August, and after that time plated. The title to the easement
the assessors have no jurisdiction can only be acquired by a grant in

proper form. It was the duty of after return made. People ex rel.
the commissioners, before enter- v. Delaney.

ing upon the lands and construct-
ing the ditches, to procure a grant See ASSESSORS.
from the owner, either by volun- ASSESSMENTS AND TAXATION, 3,
tary donation or for an agreed

4,6, 14.
compensation, or upon an ap-
praisal of damages as prescribed
by law.


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.

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 If attorneys transact business as bro-
no subsequent steps can be taken

kers, they are entitled to compen-
to acquire title to the easement.

sation as such, but cannot charge

a counsel fee for conversations

with their employers about the
12. Where, therefore, without the business, unless by express con-

procurement of a grant of the tract. Walker v. Åm. Nat. Bank.
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. Where a bailor instructs the
assessment and all subsequent pro-

bailee not to deliver his property
ceedings were void.


to any person except upon his
written order, a delivery to the

wife of the bailor without such
13. Whether the commissioners can

order is not equivalent to a de-
proceed to acquire title and make

livery to the husband, and does
a new assessment, quere.


not discharge the bailee from lia-

bility. Kowing v. Manly. 193
14. A departure by assessors from
the standard fixed by statute for 2. Although, where a wife has ob-
estimating the value of property

tained possession of the husband's
placed upon the assessment roll
cannot be corrected upon certio-

property from his bailee by a
rari, nor can their failure to assess

fraud, the bailee could maintain
the property of a corporation, as

an action against both husband

and wife for the wrong, that is not
required, be so corrected. The

a defence to and will not bar a re-
court may reverse the assessment
as made, and direct a reassess-

covery by him against the bailee.

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


BILLS, NOTES, CHECKS. sent of the maker is a material

alteration, and destroys the note
1. A bill of exchange drawn in one even in the hands of an innocent
State upon a person or corporation indorser for value.

resident in another is a foreign bill.
Com. Bank of Ky. v. Varnum. 269 7. Where one sells promissory notes

less than their face, representing
2. The rule of law requiring protest them to be business papers when

of a foreign bill of exchange is in fact they are accommodation
wholly founded upon the custom notes, and thus usurious and void
of merchants; and in an action in the hands of the vendee, the
against a notary for neglect to latter may rescind the contract
make presentment and demand, and recover back the purchase-
evidence that it is the common money, although there be no fraud
and universal usage at the place or warranty. It is no answer that
where the bill was payable for the parties to the paper might
notaries' clerks to make such pre- waive the defence and pay them.
sentment and demand, and that Webb v. Odell.

the bill in question was pre-
sented and demand of payment See FRAUD.
made by the clerk ɔf the defend- LIMITATION OF ACTIONS, 2.
ant, is proper and admissible. A


knowledge, on the part of plain- PRINCIPAL AND SURETY, 1.
tiff, of this usage, is not necessary USURY, 1.
to its validity.

Id. JONES V. SCHREYER (Mem.), 674.
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 A recital in a bond given by one
any number of days, or sight

copartner to another, upon disso-
thereof after the date." It does

lution of the copartnership, set-
not include bills payable upon

ting forth as the consideration
their face in months or years. Id.

therefor the transfer and delivery

hy the obligee to his former part-
4. A notary is not presumed to be a ner of the assets of the firm, is a
lawyer who is to revise or reverse

substantive part of the agreement,
the decision of his employer as to

and cannot be varied or contra-
the character of a bill, and as to

dicted by parol evidence. Where
whether it is entitled to days of

a bond is delivered to the obligee
grace or not. If, therefore, å bill or his agent, it cannot be shown
is delivered to him with directions

by parol that it was delivered as
to make demand and protest upon

in escrow. Cocks v. Barker. 107
the wrong day, a right of action
does not arise against him on ac-
count of the error.


5. A memorandum upon a note made

See Usury, 1.
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 9. N. Y. & B. S. S. M.

& L. Co. (Mem.), 666.
it constitutes a single contract.
Benedict v. Corden.


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 ran.

latter for a commission. To en-
title the broker to his commission, The Ruloft Case (18 N. Y., 179), ex-
he must be an efficient agent in plained. People v. Bennett. 142
or the procuring cause of the con-
tract. McClave v. Paine. 561 Dox y. Backenstose (12 Wend., 542),

questioned. Marine Bank of Chi
2. Defendant, being the owner of

cago v. Van Brunt.

three parcels of land, employed

, a real estate broker, to Kinney v. Kiernan et al. (2 Lans., 492),
negotiate sales thereof at a speci- reversed. Kinney v. Kiernan. 164
fied price for each. Plaintiff found
a purchaser for one, and the sale Morris v. Rexford (18 N. Y., 552),
was effected, upon which plaintiff explained. Kinney v. Kiernan.
received his commission. Subse-

quently defendant informed the
purchaser of his ownership of and Phillips v. Rens. and 8. R. R. Co. (37
desire to sell one of the other par- Barb., 642), reversed. Phillips v.
cels, and a contract was made be- Rens. and S. R. R. Co.

tween them for a sale and pur-
chase of the latter parcel for the Whittaker v. Man. R. R. Co. (Eng.
price and upon the terms under Com. Pleas, 1870), explained. Phil-
which plaintiff had been instructed lips v. Rens. and S. R. R. Co. 181
to sell. Plaintiff took no part in
the last sale and gave no informa- Thompson v. Fargo (58 Barb., 575;
tion to the purchaser. Held, that 44 How. Pr., 176), reversed. Thomp-
he was not entitled to a commis-

son v. Fargo.

sion on the sale.


People v. Herit (2 Park. Cr., 20), ques-

tioned. Kowing v. Manly et al.


Penn, Jr., v. Buff. and E. R. R. Co. (3

Lans., 443), reversed. Penn, Jr., v.
Buff. and E. R. R. Co.


Levin v. Russell (42 N. Y., 231), ex-

plained. Scofield v. Whitelegge.

AND H. CANAL Co. (Mem.), 652
Mass. Mut. LIFE ÎNS. Co. o. Commercial Bank of Ky. v. Varnum
CARPENTER (Mem.), 668.

(3 Lans., 86), reversed. Commer-
cial Bank of Ky. v. Varnum. 269

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Weaver v. Barden (3 Lans. 338), re-


Weaver v. Barden.
CISED OR EXPLAINED. Jones v. N. and N. Y. Tr. Co. (50

Barb., 193), criticised and limited.

McCormick v. Penn. Cent. R. R.
Harris v. Frink et al. (2_Lans., 35),


reversed. Harris v. Frink et al.


Hubbell v. Von Schoening (58 Barb.,
Stephens v. Santee (51 Barb., 532), re-

498), reversed. Hubbell v. Schoen-
versed. Stephens v. Santee. 35 ing.

Meyer v. Mohr (1 Robt., 333; 19 Ab. Railroad Co. v. Howard (7 Wall., 392),

Pr., 299), questioned. Malloney v. explained. Vose v. Coudrey et al.


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