SECOND DEPARTMENT, FEBRUARY TERM, 1875. held in Kings county, on the first Monday of the following month. The court will not presume an order to have been made at an irregular term.* With respect to the validity of the assessment, the city authorities have treated it as valid, and have authorized, under the act, the levying of a tax to meet it; the money has been collected, and is subject to demand by the park commissioners; its payment to them has been ordered by the legislative branch of the city government, and by the comptroller, who has signed the warrant. All the objections, therefore, that are now presented, must be deemed to have been waived on behalf of the city; and the rule laid down in The People ex rel. New York and Harlem Railroad v. The Mayor of New York, is decisive of the case, and of all the questions presented by it. The order of Special Term, granting peremptory writ of mandamus, should be affirmed, with ten dollars costs. Present- BARNARD, P. J., TAPPEN and DONOHUE, JJ. Order affirmed, with costs. JOHN T. GALLUP, RESPONDENT, v. WILLIAM R. BABSEN AND OTHERS, APPELLANTS. WILLIAM H. WELLS AND ANOTHER, RESPONDENTS, v. ISAAC S. HOLBROOK, WILLIAM R. BABSEN AND ANOTHER, APPELLANTS. Appeal-when case will not be reviewed upon the merits — points not taken at the trial cannot be raised on appeal. When, upon the trial of an action, certain points are insisted upon by the defendant's counsel, the attention of the court being called to no others, and an appeal is taken upon a record, not assuming to contain all the evidence, the defendant's counsel cannot, upon the hearing of the appeal, insist upon a new defense, viz., that the plaintiff's case was not made out upon the merits, at the trial. * People v. Central City Bank, 53 Barb., 412. SECOND DEPARTMENT, FEBRUARY TERM, 1875. APPEAL from a judgment entered in favor of the plaintiffs upon the trial of each of the above entitled actions by the court without a jury. A. S. Diossy and R. S. Guernsey, for the appellants. Wm. Wickham, for the respondents. DONOHUE, J.: These cases are in the main substantially alike. They are to enforce a mechanic's lien; and, after the plaintiff rested, the defendants asked a dismissal on the grounds: 1. That the lien had not been prosecuted within one year; 2. That the notice was not filed with the town clerk; 3. That the summons was served too late. The cause was tried by the court without a jury, and the attention of the learned judge was not called to any other defect of proof, which might have been supplied. It was apparently admitted and taken for granted, that the only grounds of defense were those stated. The judge overruled the points raised, and we think correctly, and the defendant, having appealed, now makes a new ground, not made before the court below, that the case on the merits was not made out. The defendants below did not sum up the case, or request any findings, so far as the record shows, that could call attention to the point now made, and it does not appear even that the case on the appeal contained all the evidence on the trial.* The proof shows the judge right on the points made. The sole question presented here, is, can the defendant try his case on certain points of fact, calling the attention of the court to no other, admitting in fact that all others are proved, and then appeal on a record not necessarily containing all the evidence, take the point that the plaintiff has failed to make out an issue, perhaps really admitted. We think this cannot be done. † It does not appear on the record, that, had the point now raised been taken at the trial, it could not (if it really exists) have been cured. Experiments are not to be encouraged, * Price v. Douglass v. Day, 3 Keyes, 434. 345; SECOND DEPARTMENT, FEBRUARY TERM, 1875. nor is the record on questions of fact to be critically examined, where no point below was taken to call attention. Present-BARNARD, P. J., and DONOHUE, J. Judgment affirmed, with costs. 3 600 82 196 JAMES FULLAGER, APPELLANT, v. EMILY REVILLE, THE SAME v. THE SAME. Contract-rescission of-effect of. A contract rescinded, waived or abandoned, cannot be resuscitated by the act of one party to it. A contract rescinded in part is rescinded in toto, unless some other intent be manifested. A party who agrees to, and accepts a rescission, without reserving any claim under the rescinded contract, cannot hold the other party bound thereby. APPEALS by the plaintiff in two actions brought by plaintiff; one to recover the sum of $500 liquidated damages, under a contract, the provisions of which are stated in the opinion of the court; the other, to recover certain interest and taxes. In the first action, the plaintiff's complaint was dismissed; in the second, he recovered but twelve dollars, the remainder of his claim having been disallowed by the referee before whom the action was tried. W. C. Anthony, for the appellant. Cassedy Brown, for the respondent. TAPPEN, J.: The plaintiff agreed to sell, and the defendant to buy, a house and lot in Newburgh, on certain terms. The agreement was in writing, and the defendant went into possession as vendee under a contract for the sale of lands. The first installment of $450 was paid by the defendant, but she failed on the other payments of princi SECOND DEPARTMENT, FEBRUARY TERM, 1875. pal. She made certain payments toward the interest, insurance and taxes, but, on the 12th of May, 1873, she was in arrears to the plaintiff for these items, to the amount of $339 for interest, and thirty-nine dollars for taxes. The contract contained a clause by which the sum of $500 was declared fixed and agreed upon as liquidated damages, to be paid by the party failing to perform. On the 12th of May, 1873, the defendant executed and delivered to the plaintiff, indorsed upon the contract of purchase, the following instrument: "I, Emily Reville, within named, in consideration of one dollar to me paid by James Fullager, the receipt whereof is hereby acknowledged, do hereby quitclaim, release and surrender to said Fullager, all my right, title and interest in the property within described, and in the within contract; and I do hereby yield up and surrender possession of said property to said Fullager, and direct all tenants in possession under me, to pay the rent to said Fullager, and surrender possession to him at the expiration of their lease. "Witness my hand and seal, May 12, 1873. And the plaintiff thereupon retook the premises, and went into possession free and discharged from any contract with the defendant. Thereafter the plaintiff brought two actions against the defendant; one to recover the sum of $500, as liquidated damages under the contract. The action was dismissed at the trial. The other action was to recover the interest and taxes, before stated, which the defendant had neglected to pay the plaintiff. In this action the plaintiff had a recovery of twelve dollars, being for rent which defendant had collected of a subtenant for the month of May, 1873, and which she had agreed to pay the plaintiff. The remainder of the plaintiff's demand was rejected by the referee, on the decision of the case. The opinion will apply to both actions. The defendant's liability depends upon the original contract of purchase, and the plaintiff's claims against the defendant arise entirely out of that contract, and it was subsequently mutually rescinded. This rescission destroys the contract, and terminates the liability HUN-VOL. III. 76 SECOND DEPARTMENT, FEBRUARY TERM, 1875. of either party to the other, unless some right be reserved in the terms of rescission. We use the term "mutually rescinded," because, while the agreement of rescission was signed by the defendant (the vendee) only, it was accepted by the plaintiff, the vendor, and the rescission, surrender and release accepted by the plaintiff put an end to the contract. A contract rescinded, waived or abandoned, is dead, and cannot be resuscitated by the act of one party to it.* That the rescission of an executory contract destroys it as to both parties, is decided in Healey v. Utly, † De Peyster v. Pulver, ‡ and cases cited; and in Battle v. Rochester City Bank. § It is held in a number of cases, that if a contract be changed, the action must be upon the modified contract. || In the case at bar, the contract of rescission reserved no rights to the plaintiff against the defendant, and was fully performed by the defendant. It is said in Raymond v. Bearnard, that an agreement rescinded in part is rescinded in toto, unless some other intent be manifest. From all the authorities and the reason of the case, it is clear that one party, who agrees to and accepts a rescission without reserving any claim under the rescinded contract, cannot hold the other party thereto. The decision in each of these cases was, therefore, correct, and the judgment in each of them should be affirmed, with costs. Present BARNARD, P. J., TAPPEN and DONOHUE, JJ. | Baldwin v. Munn, 2 Wend., 399, 587; Philips v. Rose, 8 Johns., 392; Free man v. Adams, 9 id., 115. ¶ 12 Johns., 274. |