no liability for the payment of the award. The case of Suge v. City of Brooklyn decides both of these propositions adversely to the defendant. It was held that the improvement was a municipal improvement, and also, as before stated, that the city became liable to pay the awards to the land owners. The judgment of the court denying the plaintiff's right to a judgment for the award, cannot be supported on the grounds upon which it proceeded, and we think the case for this reason back for a new trial." must go It was insisted on behalf of the defendant that assuming the liability of the city to pay the awards to the land owners, there is nevertheless a right of set-off of unpaid assessments against awards, in cases of awards to persons who are also assessed for benefits, and that the plaintiff's assignor in this case having been assessed for benefit to his other land, resulting from the widening of Sackett street, this plaintiff as assignee can only recover the excess, if any, of the award over the assessment. The court say: "This presents an important question. But it was not raised by the answer nor litigated on the trial, and there are no facts found which would justify the court in now deciding it. The determination of the question between the parties requires a careful examination of the charter acts of the defendant, and of the various special statutes relating to the improvement, as well as a precise knowledge of the particular facts in respect to the assessments in question. We express no opinion on the point; upon a new trial the pleadings may perhaps be amended and the question properly raised." George C. Genet, appellant, in person. John A. Taylor for respondent. ANDREWS, J., reads for reversal and new trial. Judgment reversed. JOHN M. MASTERSON, Appellant, v. CALEB E. WHITAKER et al., Respondents: (Argued December 10, 1883; decided January 15, 1884.) Flamen B. Candler for appellant. George V. N. Baldwin for respondents. Agree to affirm. No opinion. All concur. Judgment affirmed. CALEB E. WHITAKER, Respondent, v. IMPERIAL SKIRT MANUFACTURING COMPANY, Appellant. (Argued December 12, 1883; decided January 15, 1884.) THE principal questions presented were upon exception to findings of fact. The court say: "We find no question of law improperly decided, nor any finding of fact unsupported by evidence. In such a case we have only to affirm the judgment. (Code, S$ 1337, 1338; Reynolds v. Robinson, 82 N. Y. 103; 37 Am. Rep. 555.)" Flamen B. Candler for appellant. George V. N. Baldwin for respondent. DANFORTH, J., reads for affirmance. All concur. Judgment affirmed. EWEN MCINTYRE, Respondent, v. WILLIAM E. STRONG, Appel lant. (Argued December 14, 1883; decided January 22, 1884.) Henry S. Bennett for appellant. William J. Gibson for respondent. Agree to affirm; no opinion. All concur except DANFORTH, J., dissenting. HENRY DANENBAUM et al., Respondents, v. LEHMAN H. MANDELBAUM, Appellant. (Argued December 4, 1883; decided January 22, 1884.) E. C. Boardman for appellant. Rastus S. Ransom for respondents. Agree to affirm on opinion in Segelken v. Meyer (ante, p. 473). All concur. Order affirmed. THE PEOPLE OF THE STATE OF NEW YORK, Appellants, v. THOMAS MCKEON, Respondent. [Submitted January 14, 1884; decided January 22, 1884.) 1. Sam Johnson for appellant. M. E. & E. M. Bartlett for respondent. Agree to affirin; no opinion. All concur. Judgment affirmed. THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. GEORGE SMITH, Appellant. Argued January 14, 1884; decided January 22, 1884.) John D. Townsend for appellant. John Vincent for respondent. Agree to affirm; no opinion. All concur. Judgment affirmed. HENRY CHAMBERLIN, Respondent, v. HARRIET A. BRADY et al., as Executors, etc., Appellants. (Argued January 16, 1884; decided January 29, 1884.) George H. Foster for appellants. Edwin B. Smith for respondent. Agree to affirm; no opinion. Judgment affirmed. GEORGE WHITING et al., Appellants, v. JOACHIM LEBENHEIM et al., Respondents (Argued January 16, 1884; decided January 29, 1884.) GORDON MCKENZIE et al., Respondents, v. MARIA E. DECKER, Administratrix, etc., Appellant. (Argued January 21, 1884; decided February 5, 1884.) THIS action was brought to recover a balance alleged to be due upon a contract between plaintiffs and Nicholas H. Decker, defendant's intestate, for the construction of a cemetery vault by the former for the latter. The substance of the contract and the facts, so far as pertinent, as well as the holdings thereon, are given in the following extract from the opinion: "The referee found as a fact that after the construction of the vault, the defendant expressed himself perfectly satis fied with the work. There was abundant evidence to sustain this finding and we must assume its truth in a further examination of the case. The contract provided for payment to be made to the builder in two installments- "one-half of the amount when the foundation is built, and the cut granite required for the vault is in Johnstown; the balance of the price to be paid on the completion of the work to his, said Nicholas H. Decker's satisfaction." That it was so completed was established, and the balance remaining unpaid became due and payable, unless we are to heed the criticism of the learned counsel for the appellant that it was not so completed by the builder, but was finished by Decker himself. The difficulty grew out of a disagreement as to the meaning of the contract. The builder was about to put on the fourth roof stone, which was a limestone, when the defendant insisted it should be granite. The builder refused to make the substitution, and Decker did it himself, charging against the builder the cost of the change, and also that of the steps, cut out of a single block, instead of being made separate. The courts below have sustained Decker's construction, and allowed to him, upon his demand, the amount expended by him for the granite roof stone. Practically, therefore, the placing of the fourth stone of granite, although furnished under Decker's direction, and upon his responsibility, has been paid for by the builder by |