2. If there is any evidence to sustain the facts found by a referee, his conclusion, if the facts are capable of the interpretation given to them by him, is final so far as this court is concerned; but where his con- clusion is predicated in part upon facts not proven, which may have had some influence, the judgment will be reversed, as it cannot be determined whether those assumed facts might not have had a con- trolling influence. Thus, where a referee finds various facts, from which he finds an intent to evade the usury laws, and some of the material facts are unsupported by evidence, or are against evidence, it is an error of law, which is fatal to the judgment, although usury may have been predicated upon the facts proven. Mattheros v. Coe.
3. Where a witness, in answer to a proper question which is objected
5. An order making an extra allow- ance when it does not exceed the limits prescribed by the Code is not reviewable in this court. South- wick v. Southwick. 510
6. This court is not authorized to review a judgment and reverse it for an alleged error which does not appear upon the record, and is only shown by expressions in the opinion of the court below. Laning v. N. Y. C. R. R. 521
7. When a judgment is rendered by the General Term upon a verdict taken subject to the opinion of that court, and a statement of facts, with the questions or con- clusions of law thereon, is pre- pared, as required by section 333 (sub. 2) of the Code, and is made part of the record, the facts pre- sented in the statement are the only ones which can be considered upon appeal. If the statement is defective in any respect, it must be sent back to the Supreme Court for correction. Jaycox v. Came- 646.
An appellant will not be heard to allege as error that which was inserted in a judgment at his own instance. Proestler v. Kuhn. 654
by it, which is incompetent, but ASSESSMENT
to, gives testimony not called for
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.
4. It is the duty of the General Term of the Supreme Court to set aside a verdict which is against the clear weight of evidence. Where a judgment has been reversed and new trial granted by that court upon the facts, this court occupies the same position, and the facts are open for review; a concealment of material facts, called for by questions in an application for a policy of life insurance, is as fatal to the contract as a denial. Smith v. Etna Life Ins. Co. 211
of commissioners of estimate and assessment in proceedings, under the provisions of chapter 890, Laws of 1869, for the widening and straightening of Broadway, may be set aside upon motion for irregularity, mistake or fraud. In 150 re. Mayor, etc.
2. The provision in the act of 1813 ($178, chap. 86, Laws of 1813), declaring that the report of com- missioners of estimate and assess- ment, when confirmed, shall be "final and conclusive," has refe- rence to an appeal therefrom; not
to the remedy by motion to set it aside. Id.
3. Assessors are not personally liable for errors or mistakes in the as- sessment where they have juris- diction and act within the scope of their authority, but if they ex- ceed their powers and act without authority, and in contravention of the statute prescribing and regu- lating their duties, they are civilly liable to any person injured by their action. Clark v. Norton. 243
4. Assessments must be made by the first of July, and of property and persons in respect to the liability as it exists upon that day. An individual not liable upon that day cannot be placed upon the assess- ment roll thereafter, nor can a person whose name is properly upon the roll be assessed for pro- perty subsequently acquired. Af- ter the deposit of the roll for examination the assessors cannot add names thereto, or add to the assessments of individuals other property, or change the character of the property assessed. Where the roll is completed the duty of the assessors is fully performed, except in the matter of a review of the assessment as made and as
permitted by statute. Although one purchasing property after the completion of the roll agrees to pay the tax thereon, this confers no jurisdiction upon the assessors to change the assessment, nor does it operate as a waiver of the legal rights of the purchaser. It is a matter resting in contract between the parties and is to be enforced in the usual way.
5. A substantial compliance with the statute in the measures prelimi- nary to the taxation of persons and property, in all matters which are of the substance of the procedure, and designed for the protection of the tax-payer, is a condition pre- cedent to the legality and validity of the tax. Westfall v. Preston. 349
6. For the purpose of deposit for inspection, the assessment roll is to be completed on or before the first of August, and after that time the assessors have no jurisdiction
over the persons of tax-payers, the roll, or the subject-matter of the assessment for the current year, save for the purpose of reviewing the assessments already made and verifying the roll after such re- view. For the purpose of verifica- tion and delivery to the supervisor, the roll cannot be completed until after the time fixed for its final review and correction, to wit, the third Tuesday of August. affidavit of the assessors thereto, made prior to that time, is a nul- lity, and where the defect appears upon the face of the paper by the date of the jurat, it confers no ju- risdiction upon the board of super- visors to impose a tax upon per- sons or property named therein, or to sign a warrant to the collec- tor; as the affidavit is made part of the assessment roll delivered to the collector, and the want of ju- risdiction in the board of super- visors is thus disclosed upon the face of the papers, the warrant furnishes no protection to the col- lector. Id.
The receipt by one whose pro- perty is sold under a void warrant, or for an illegal tax of the surplus arising from the sale, over the amount of the tax and expenses, is not a condonation or an accord and satisfaction of the trespass. Id.
The occupancy and use of lands for the purpose of constructing and maintaining ditches, as autho- rized by the provisions of the act appointing commissioners for draining certain lands in the town of Royalton, Niagara county (chap. 774, Laws of 1867), is such an in- terference with the proprietary interests of the owner as entitles him to the just compensation made necessary by the Constitution. (Con. of State, art. 1, §6.) It sub- jects the lands to an easement in behalf of the public, depriving the proprietor of the full and free en- joyment of them. People, ex rel. v. Haines. 587
Nothing less than a legal title in perpetuity will serve the purposes of the act or the object contem- plated. The title to the easement can only be acquired by a grant in
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 to acquire title to the easement.
14. A departure by assessors from the standard fixed by statute for estimating the value of property placed upon the assessment roll cannot be corrected upon certio- rari, nor can their failure to assess the property of a corporation, as required, be so corrected. The court may reverse the assessment as made, and direct a reassess- 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
kers, they are entitled to compen- sation as such, but cannot charge a counsel fee for conversations with their employers about the business, unless by express_con- tract. Walker v. Am. Nat. Bank. 659
1. A bill of exchange drawn in one State upon a person or corporation resident in another is a foreign bill. Com. Bank of Ky. v. Varnum. 269
2. The rule of law requiring protest of a foreign bill of exchange is wholly founded upon the custom of merchants; and in an action against a notary for neglect to make presentment and demand, evidence that it is the common and universal usage at the place where the bill was payable for notaries' clerks to make such pre- sentment and demand, and that the bill in question was pre- sented and demand of payment made by the clerk of the defend- ant, is proper and admissible. A knowledge, on the part of plain- tiff, of this usage, is not necessary to its validity. Id.
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 any number of days, or sight thereof after the date." It does not include bills payable upon their face in months or years. Id.
4. A notary is not presumed to be a lawyer who is to revise or reverse the decision of his employer as to the character of a bill, and as to whether it is entitled to days of grace or not. If, therefore, a bill is delivered to him with directions to make demand and protest upon 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 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 See TERRETT v. N. Y. & B. S. S. M. body of the instrument, and with it constitutes a single contract. Benedict v. Cowden.
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 latter for a commission. To en- title the broker to his commission, he must be an efficient agent in or the procuring cause of the con- tract. McClave v. Paine. 561
2. Defendant, being the owner of three parcels of land, employed plaintiff, a real estate broker, to negotiate sales thereof at a speci- fied price for each. Plaintiff found a purchaser for one, and the sale was effected, upon which plaintiff received his commission. Subse- quently defendant informed the purchaser of his ownership of and desire to sell one of the other par- cels, and a contract was made be- tween them for a sale and pur- chase of the latter parcel for the price and upon the terms under which plaintiff had been instructed to sell. Plaintiff took no part in the last sale and gave no informa- tion to the purchaser. Held, that he was not entitled to a commis- sion on the sale. ld.
The Ruloff Case (18 N. Y., 179), ex- plained. People v. Bennett. 142 Dox v. Backenstose (12 Wend., 542), questioned. Marine Bank of Chi- cago v. Van Brunt. 164 Kinney v. Kiernan et al. (2 Lans., 492), reversed. Kinney v. Kiernan. 164
Morris v. Rexford (18 N. Y., 552), explained. Kinney v. Kiernan.
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