nature of a right to a judg-
ment; and, therefore, no ques-
tion arises as to whether a
party can appeal from an order
affecting it. Wireman v. Rem-
ington Sewing Machine Co.

314.

the Converse of which, if'
charged, would not have called
for or justified any different
determination of the case than
that arrived at, and ought not
in law to any way affect the
determination, it is unnecessary,
on appeal, to consider whether 11. Where the rules and principles
the proposition is correct or
not. The proposition being
immaterial, its error (if it be
erroneous) presents no cause for
reversal. Whitney v. Mayor, &c.
of New York, 106.

4. In the construction of instruc-
tions to the jury, the whole
charge must be considered and
applied to the facts of the case.
Maher v. Central Park, North
& East River R. R. Co., 155.

of law involved are important,
and affect large and varied pub-
lic interests; and where, in the
opinion of the conrt, the rules
and principles of law that should
control, have not been fully
settled by the court of last re-
sort in this state, leave to ap-
peal to the court of appeals
should be granted, on proper
conditions. Atlantic & Pacific
Telegraph Co. v. Barnes, 357.

in a case tried before a referee,
a party who deems certain facts
as mentioned in his case, must
procure the referee to either find
or refuse to find them. Kemple
v. Darrow, 447.

5. The findings of a referee upon 12. For the purposes of an appeal,
conflicting evidence should not!
be disturbed, and especially
so, when the contradictions are
irreconcilable, and one side or the
other must be disregarded.
American Corrugated Iron Co.
v. Eisner, 200.

6. His findings of fact, like the
verdict of a jury, will not be
disturbed by an appellate court,
unless unsupported by, or very
clearly against, the weight of
evidence. Ib.

7. An order allowing a material
allegation to be inserted in the
answer is not appealable.

[Per

13. If the facts as claimed to ex-
ist are not found, the general
term can not assume them to
exist; and if there is no refusal
to find them, the court can not
look into the testimony to see
whether there is any evidence to
support them, or whether the
referee ought to have found
them. I b.

MONELL, Ch. J.] Schreyer v. 14. A general finding can not be

Mayor, &c. of New York, 277.

8. The general term on appeal
should have all the papers upon
which the order appealed from

affected by any evidence of a
particular fact, which the referee
has neither found nor refused to
find. Ib.

was based, placed before it. 15. A defendant agreed to furnish
Eldridge v. Strenz, 295.

9. In this case the remittitur from
the Court of Appeals to this
court, which was before the
special term, does not appear
among the papers. Ib.
10. The plaintiff's right to an
order that the defendant pay to
him an amount admitted to be
due by the answer is a substan-
tial right when the answer
"admits part of the plaintiff's
claim to be just," being in the

a plaintiff with certain materials,
in such numbers and amounts as
might be required. The referee
found generally that defendant
had failed to perform. Held,
that whatever evidence there was
which it was claimed established
that, by the agreement between
the parties, the material was all
to be delivered within a certain
time, and that plaintiff would
not permit a delivery wit in that
time, but had improperly delayed

question, the allowance of which
is not error, an answer which is
responsive, but merely states his
opinion on the subject-matter
inquired of, and no objection is
taken to his answer, there is no
error calling for a reversal. Pol-
lock v. Brennan, 477.

and obstructed defendant, so
that he could not make delivery
within the time, and had re-
fused to allow delivery to be
made when he was ready to do
so, neither the claimed fact that
the time of performance was lim-
ited by the contract, nor the!
evidence which it was claimed 21. Sustaining an objection urged
supported it, could be consid-
ered, the referee having neither
found nor refused to find speci-
fically on such claimed particu-
lar fact. Ib.
16. Costs of appeal will not be
allowed to either party, when
the judgment below was for too
much, and plaintiff on discov-22. Error can not be assigned un-
ering the error offered soon after
the appeal to make the proper
reduction. Ib.

17. The grounds upon which a
motion for a new trial, made on
the judge's minutes, is based,
must appear in the record on

in the middle of a question, is
not error where the reason for
the exclusion does not appear,
and the counsel does not claim
the right to complete. A sub-
stantial reason, growing out of
the usual incidents of a trial,
must be presumed to exist. Ib.

der a general objection to the re-
ception of evidence as too remote,
the subject-matter of which is
pertinent to the inquiry.
special objection must be made,
based on the ground of remote-
ness. Ib.

Α

appeal from an order denying 23. Exclusion of unimportant tes-

the motion. Alfaro v. Davidson,
463.

18. When there is an appeal from

timony is not cause for reversal,
although the inquiry is pertin-
ent. lb.

the judgment as well as from 24. An exception to the denial of

the order denying a motion for
a new trial, and both appeals
are brought on for argument at
the same time, this rule is re-
laxed; because the court is in a 25.
position to do full and complete
justice between the parties, ac-
cording to the exigencies of the
case, and without regard to mere
matters of form. Ib.
19. When, however, the appeal
from the order denying the mo-
tion for a new trial is brought
on for argument while the ap-
pellant is keeping himself in
such position, so that in case of

a motion for a new trial on the
minutes is unavailing upon an
appeal from the judgment. Mc-
Micken v. Lawrence, 540.

Where no motion is made
either for a dismissal of the
complaint, or the direction of a
verdict, and the case is submit-
ted to the jury under a charge
to which no exception is taken,
the review on appeal must be
confined to a consideration of
the questions arising on the
appellant's exceptions to the
admission or the exclusion of the
evidence. Ib.

non-success he may prosecute a 26. The rejection of evidence

further appeal from a judgment
already entered, or to be entered,
the rule will be strictly enforced,
and the order below affirmed
for the reason that the grounds
on which the motion was based
do not appear on the record.
Ib.

20. Where a witness gives to a

offered to disprove a fact sought
to be proved by plaintiff to
maintain his case, is not cause
for reversal, when the fact
itself is unimportant by reason
of the plaintiff's case being
otherwise sufficiently maintained
upon the undisputed evidence.
Parsons v. Sutton, 544.

27. The rejection of evidence
offered to prove damages is not
cause for reversal, when it ap-
pears that no right to damages
exists. Ib.

28. Upon a motion for re-argument
of an appeal on the ground that
the court overlooked important
testimony, the moving party
must show that the court had
not in fact considered all the 2.
evidence. Weston v. Ketchum,

552.

29. It does not follow, from the
court's referring in the opinion
to parts of the testimony only,
that it did not consider the
whole. This although it speaks 3.
of the evidence thus referred to
as being undisputed, and dis-
poses of the case upon such view
of the testimony. Ib.

30. In the case at bar, however,

the evidence referred to as hav-
ing been overlooked does not
disturb the harmony of the evi-
dence upon which the former
general term proceeded in its
decision. Ib.

See CONTRACTS, 13; COSTS, 3.

ARREST.

the power, in suits commenced
after the passage of the act, to
declare such assessments void.
and cancel them of record, and
enjoin their collection until the
assessment is sought to be en-
forced by the taking of the
assessed property. Astor v.
Mayor,
&c., of New York,
120.

The entry of the assessment in
the office of the comptroller of
the city, among the entries of
assessments confirmed, is not a
seeking so to enforce the assess-
ment. This is not a proceeding

Ib.

for its collection.
Neither is an admission that
"proceedings have been taken
towards its collection” sufficient
evidence that proceedings have
been taken for collection. 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 where
the three years which must
elapse befere advertising for
sale have not expired. Ib.
4. The act of 1872, above referred
to has not been repealed; its
provisions have been extended
by act of May 2, 1874, ch. 313,
p. 366. Ib.

1. An application for exoneration
of bail is too late when made
after the bail have become
charged. Hissong v. Hart, 411. 5. Semble, the liability of parties
2. The return of the sheriff can
not be questioned in an action
against bail, and therefore can
not be questioned on a motion
to discharge the bail. Ib.
See MALICIOUS PROSECUTION.

6.

assessed can not be affected by
nice jurisdictional questions aris-
ing out of proceedings to im-
pose the assessment. 16.

a

The act of 1858 (Session Lavs,
1858, ch. 338) authorized
judge of the supreme court, at
special term, to vacate assess-
ments upon the allegation and
proof of any fraud or legal
irregularity" therein. An amend-
ment to this act, by the act of
1874, struck out the words, "or
legal irregularity," and substitu-
ted the words, or substantial
error," and a further amend-
ment provided that "hereafter
no suit or action in the na-
ture of a bill in equity, or

66

otherwise, shall be commenced
for the vacation of any assess-
ment in said city, or to remove
a cloud upon title; but the
owners of property shall here-
after be confined to their reme-
dies in such cases to the pro-
ceedings under the act hereby
amended." In the case at bar
the plaintiff seeks to restrain,
by injunction, the sale of his
property by the corporation, and
the collection of the assessment
by any other mode or process,
thus invoking the equity juris-
diction of the court, for relief,
instead of the remedies provided
in the act. Held, that such an
action can not be maintained.
The remedies under the act are
adequate to the relief of the
plaintiff, and should be pursued
by him. Rae v. Mayor, &c. of
New York, 192.

7. The act of 1874, is not in con-
⚫flict with the provision of the

11.

entry, in a record of the titles
of assessments, kept in the office
of the street commissioner, and
also until the title of said assess-
ment shall have been entered
with the date of confirmation,
and of said entry, in a record of
the titles of assessments con-
firmed, kept in the office of the
clerk of arrears (Laws of 1853,
1065, § 6; Laws of 1871, 741, §
1). De Peyster v. Murphy, 255.
Assessments for street im-
provements in the city of New
York, are not only a personal
liability against the owner of
the lands included therein, but
are also a lien, or charge upon
such lands (2 Rev. Laws of 1813,
407, § 175). lb.

12. By subsequent statutes this

lien becomes fixed as an incum-
brance, in the nature of a mort-
gage upon said lands from the
time of its entry or record in
certain designated offices. Ib.

constitution (art. 6, § 12) which 13. The officers clothed with

continued the Superior Court
with the powers and jurisdiction
that it held and possessed at the
time of the adoption of the con-
stitution. That act merely af-
fects the remedy to be pursued
by the person injured. Ib.
8. The legislature has always,
and rightfully, assumed the 14.
power to change the forms of
proceedings and remedies, and
to limit them to certain tri-
bunals, and any general law af-
fecting the mode of obtaining a
remedy, can not be construed
into an infringement of consti-
tutional jurisdiction or power.

Ib.

9. The amendment of 1874, is a
valid and constitutional law.
Ib.

10. A city assessment for street
improvements is not deemed to
be fully confirmed, so as to be
due, and be a lien upon the
property included in it, until the
title thereof, with the date of
confirmation, shall have been
entered, with the date of such

VII--36

authority to collect these assess-
ments in New York city, are
not required to demand and
seek to collect the assessment of
the owner of such lands, al-
though such owner is primarily
bound and legally liable to pay
the same. Ib.

Resort may be had primarily
to either the land or to the
owner thereof; but when the
land is resorted to, and the lien
or incumbrance created, in the
first instance, such action neces-
sarily extinguishes the personal
liability of the owner of said

land. Ib.

15. In the case at bar, the prem-
ises were sold and conveyed on
December 5, 1870, by plaintiff
to defendant, the plaintiff cove-
nanting that the premises were
at the time of the conveyance
free, clear, and discharged and
unincumbered of all taxes, as
sessments, and incumbrances.
The assessment in question was
duly entered, and became a lien
upon the premises, December