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Opinion of the Court, by CURtis, J.

The defendant excepted to the refusal of the court to charge "That if plaintiff knew of a defect which caused damage, he was bound to have it repaired as soon as it could reasonably be done, and if he did not do so and damage subsequently accrued, he can not recover for such subsequent damage." The claim of the plaintiff was for damages occasioned by the defendant's failure to comply with his covenants, and when the defendant failed to make the repairs and restorations called for, the plaintiff had the usual option of a tenant, either to make the repairs in the exercise of his best judgment, being judicious and reasonable in his expenditures, and recover the expenses incurred from the landlord, or else to omit to make the restoration and repairs himself, and sue for his damages (Myers v. Burns, 33 Barb. 407). The first remedy may be beyond the ability of a tenant, and without the last he would be left remediless. Neither is there force in the objection that if the plaintiff, the tenant, was present during the performance of the work, and saw the quality of the materials and workmanship, and made no objection, he waived his right to object afterwards. Few tenants, and in fact, few individuals in the com munity, have such a knowledge of the work and materials involved in the plumbing, steam supply pipes, and other features connected with the construction and fixtures of a large hotel, that their presence during the performance of the work and seeing the materials would enable them to make proper objections in reference to any defects. The law does not impose any such obligation upon a tenant, especially where it involves what would tax the ability of an accomplished expert.

The defendant also claims that the judge erred in refusing to allow evidence of a strike on the part of the workmen after September 1. This was after the period within which the defendant was to full the agreement,

Opinion of the Court, by CURTIS, J.

and whether there was a strike or not, during his default, has no bearing upon the issues of the case. If the defendant had wished to protect himself from the consequences of such contingencies, he should have done so by a provision in his agreement.

As the case does not contain the plans and specifications for the new building referred to in the testimony, and in some of the exceptions, and as they have been brought in no other way to the attention of the court, it is difficult to pass upon the exceptions to which the omitted documents apply, and they will have to be disregarded on this appeal.

The defendant objected to the charge of the judge in respect to the use of the coal vault. The judge restricted the jury to such damage as the plaintiff had shown from not having been put in possession, excluding all claim for increased price paid in consequence of being compelled to purchase his coal at retail prices. The defendant excepted to the refusal of the court to charge that the plaintiff was only entitled to recover for the use of the coal vault for such length of time as it would take to clear it out, and to such expense as would have been required to do that.

There was nothing in the terms of the lease to require the tenant to clean out the rubbish and other contents of the coal vault to get possession of it, nor was there any such duty imposed upon the tenant otherwise. The principles governing this exception and that in respect to that part of the charge in relation to plaintiff's putting in a new boiler, have already been considered, and they can not be deemed to have any weight.

The defendant excepted to the refusal of the judge to charge, that if the plaintiff failed to pay his rent when it became due, he could not recover for any damages after such non-payment.

This defense was not interposed by the answer,

Statement of the Case.

which set up a non-payment of rent for the quarter expiring November 1, 1871, as a counter-claim. The reply sets up the pendency of an undetermined suit brought by the defendant against the plaintiff to recover this quarter's rent. This is the only evidence in respect to the non-payment, and as the counter-claim was withdrawn at the trial everything on that subject may be considered out of the case. The question, but for the withdrawal of the counter-claim, could have been determined at the present trial.

These constitute the exceptions in the case, to which the attention of the court was chiefly called at the argument. In looking through the case, there are many exceptions to be found, but none that constitute a sufficient reason for granting a new trial.

The judgment appealed from should be affirmed, with costs, to respondent.

FREEDMAN and SPEIR, JJ., concurred.

JOHN JACOB ASTOR, PLAINTIFF AND RESPONDENT, v. THE MAYOR, &c. OF THE CITY OF NEW YORK, AND ANDREW H. GREEN, COMPTROLLER, DEFENDANTS AND APPELLANTS.

I. ASSESSMENTS FOR LOCAL IMPROVEMENTS IN THE CITY OF NEW YORK, INCLUDING THEREIN THE OPENING OF STREETS.

1. COURTS OF EQUITY, THEIR POWER TO SET ASIDE SUCH ASSESS

MENTS.

a. Even though the assessment was originally invalid and void and the act of 1872 [Laws of 1872, ch. 580, p. 1412] does not operate to validate it, yet by force of that act as ex

Statement of the Case.

pounded by Lennon . Mayor of N. Y. (55 N. ¥. 361), . courts of equity are deprived of the power, in suits commenced after the passage of the act, to declare such assessment void, and cancel them of record, and enjoin their collection,

UNTIL

the assessment is sought to be enforced by the taking of the assessed property.

1. WHAT IS NOT A SEEKING SO TO ENFORCE.

a. The entry of the assessment in the office of the comptrollor of the city, among the entries of assessments confirmed is not.

1. This is not a proceeding for its collection.

2. WHAT IS NOT SUFFICIENT EVIDENCE OF PROCEEDINGS HAVING BEEN TAKEN FOR COLLECTION.

2. REPEAL.

a. Admission that "proceedings have been taken towards its collection," is not.

1. There can be no inference from this, either that the land has been advertised for sale, or that it has been sold, or that a lease is about to issue under Laws of 1871, ch. 381,

especially

as the three years which must elapse before advertising for sale had not expired.

Act of 1872 has not been reapealed; its provisions have been extended by Act of May 2, 1874, ch. 313, p. 366.

II. ASSESSMENTS.

1. JURISDICTIONAL QUESTIONS ARISING OUT OF PROCEEDINGS TO

IMPOSE, EFFECT OF.

a. Semble. The liability of parties assessed can not be affected by nice jurisdictional questions.

Before MONELL, Ch. J., and CURTIS, J.

Decided Feiruary 1, 1875.

This is an appeal by defendants from a judgment vacating an assessment upon plaintiff's land and removing the entry thereof as a cloud upon plaintiff's

NOTE. The decision at special term will be found in 37 N. Y. Sup. Ct. R. p. 539.

Respondent's points.

title, and perpetually restraining the collection of it, and also an appeal from an order disallowing defendants' proposed amendments to the findings of fact.

The assessment was made under an act entitled "An Act in relation to the widening and straightening of Broadway, in the city of New York, and to regulate the practice in that proceeding," passed February 27, 1871, and confirmed by an order of the supreme court, made July 5, 1872.

The plaintiff alleges various acts, errors, and omissions in respect to the assessment, which he claims are fatal to its validity. This is controverted by the defendants. The assessment upon plaintiff's land amounts to about thirty-seven thousand dollars, and is for benefits claimed to have been received by the plaintiff, from the local improvement made in pursuance of the act of the legislature above referred to.

Anderson & Young, attorneys, and Henry H. Anderson, of counsel, for respondent, urged in respect of the points passed on by the general term;-I. The reliance of the defense is upon section 7 of chapter 580 of the Laws of 1872 (2 Laws of 1872, 1416), and the case of Lennon v. Mayor, &c. of New York (55 N. Y. 361), decided since the trial of this case, but before its decision. (a) The statute, when carefully considered, will be found to be no obstacle to the relief given the plaintiff in this case. Its provisions have reference merely and evidently to omissions to advertise, or to irregularity in advertising any ordinance, resolution, notice or provision relating to or authorizing the improvement or work for which the assessment is afterwards laid, but not applying to the assessment itself. They also have reference to omissions or neglect of duty, and to defect in authority on the part of departments or officers of the municipal government, upon whose action the assessment depends, or to mere mat

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