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after the delivery of a lease, etc., a sale thereof and delivery of a had no application to the present certificate to the purchaser, by the case, and the only question was payment of the sum prescribed in whether relators were entitled to $ 941, which is the purchase price redeem upon payment of seven or and interest at fourteen per cent., fourteen per cent.

and that this was the provision That the policy of the Consolida- | applicable to the case at bar. tion Act is to divide all the several That the other provisions relaperiods in which taxes may be ting to the redemption of lands paid into three parts, and to adjust after the lease had been given, etc., the rate of interest according as had no application as above stated. the taxes are paid during the one Order affirmed, without costs. or the other of those periods. That Opinion by Macomber, J.; Brady $ 917 declares that if the tax shall and Daniels, JJ., concur. remain unpaid for the period of sixty days after the date of entry

CONTRACT. SERVICES. thereof in the records seven per cent. interest from such date of N. Y. COMMON PLEAS. GENERAL

TERM. entry to date of payment should be collected. That by S918 the Howson, respt., v. Mestayer, rate of interest is still stated to be applt. seven per cent. on all arrears of

Decided Dec. 6, 1886. taxes returned to the clerk of ar

An effort to obtain other employment is rears from the time the taxes be

not a condition precedent to plaintiff's came due. It then says that the

right to recover damages from his emrate shall apply to the taxes re- ployer for a wrongful discharge. maining due and unpaid for the Prima facie, plaintiff's damage is the

amount of the stipulated compensation, non-payment of which the lands

and the burden is on defendant to show and tenements liable therefor shall

that through plaintiff's negligence the have been sold since the 16th of

damages have been increased. March, 1881, or thereafter, but shall A mere conjecture on plaintiff's part that not apply to or affect the rights of

by obtaining the discharge of another he

might get employment in such other purchasers at sales for taxes before

person's place, there being no evidence of March 16, 1881, or to authorize

the salary to be earned, etc., does not the redemption of lands for sums amount to proof that plaintiff could have less than those collectible for such

found other employment. redemption under the provisions of Appeal from judgment entered laws then existing.

on verdict and from order denying That up to this point voluntary motion for new trial. payments made when due and Action for breach of a contract without resort to sales of lands to employ plaintiff in his profesonly are contemplated and the sional capacity as actor for a specirate of interest is seven per cent. fied period of time at a salary of Thence follows $ 926, which re- $200 per week. It appeared that quires lands to be redeemed, after prior to the expiration of said period plaintiff was discharged calculate how much plaintiff could without cause, in the middle of the have earned if he had succeeded in summer, when only three theatres obtaining an engagement in any were open in New York City, and one of the three theatres open at when the companies were all full the time of his discharge. Moreand regularly performing and no over, there was no testimony that vacancies known to exist. It was he could have obtained employadmitted by plaintiff that he made ment at another theatre. Plainno effort to obtain other employ- tiff's conjecture that he could have ment thereafter, and there was no stepped into another comedian's proof on defendant's behalf that shoes does not amount to proof such efforts would have been suc- that he could have found an encessful if made. Plaintiff, how gagement elsewhere. ever, said that perhaps he might Gillis v. Space, 63 Barb., 177, is have got an engagement if some an authority in point upon this actor at one of the three theatres

case. had been displaced, but that pro- Judgment

Judgment and order affirmed, fessional courtesy would have with costs. made him unwilling to procure the Opinion by Van Hoesen, J.; discharge of a fellow actor in order Larremore, Ch. J., and Daly, J., that he might get his place.

concur.
S. G. Barnard, for applt.
Howe & Hummel, for respt.
Held, That an effort to obtain

LANDLORD AND TENANT. another engagement was not a N. Y. COMMON PLEAS. GENERAL condition precedent to plaintiff's

TERM. right to recover damages for a

Edward Kedney, respt., v. John wrongful discharge. Though it is

Rohrbach, applt. always the duty of a person who has sustained an injury to make

Decided Dec. 6, 1886. reasonable efforts to avoid swell

Where the lessee of premises during the ing the damages, he is not bound term substitutes another in his place, and

assents to the collection of the whole to prove, as part of his cause of

rent from such other person by the landaction, the steps he has taken

lord, who accepts such person as tenant, to minimize the damages. The

it operates as a surrender in law, and a burden is on defendant to show sub-tenant thereupon becomes the immethat through plaintiff's neglect the

diate tenant of the landlord and liable to

him alone. damages have been unnecessarily increased. Prima facie, the stipu- Appeal from judgment of 10th lated salary was the amount of District Court of New York City plaintiff's damages, but it was the in favor of plaintiff for rent for right of defendant to show that it months of January, February, was plaintiff's fault that his dam- March and April, 1886. age was so large. There was no Plaintiff was tenant of one Mortestimony from which a jury could rell under lease for two years from

Vol. 25-No a.

May 1, 1884, of the whole of prem acceptance by the landlord of the ises 474 Fourth avenue, to be used new tenant is the principal elefor his market and butcher shop ment of the surrender, and here and barber shop. He sublet the such assent is indisputable. When barber shop, retaining the rest of plaintiff substituted Levy in his the premises until January 1, 1886, place and assented to the colwhen he sold out his business to lection of the whole rent from him one Levy and gave the latter pos- by the landlord, it operated as a session of the premises he, plain- surrender, and upon such surrentiff, had occupied.

der the sub-tenant became the imLevy was accepted as tenant by mediate tenant of the landlord and Morrell and paid rent to the latter liable only to him. 60 N. Y., 252. for the whole premises, including Judgment reversed, with costs. the barber shop, with the assent of Opinion by Daly, J.; Larremore, plaintiff. Plaintiff's testimony Ch. J., and Van Hoesen, J., conshowed that he supposed Levy cur. would be obliged to pay the whole rent while he, plaintiff, would

RAILROADS. collect and retain the rent of his sub-tenant, defendant. He testi

N. Y. SUPREME COURT. GENERAL fied: “I claim the rent of the bar

TERM. THIRD DEPT. ber shop was my profit out of the The People ex rel. The N. Y., hire of the store;" but it did not Ontario & Western RR. Co. v. appear that he obtained the con- Alfred C. Chapin, Comptroller, et sent of Levy or the landlord to this al. arrangement. It appeared that

Decided Nov., 1886. defendant had paid the rent sued

The expense of the railroad commission, for to Levy by direction of Mor

which is to be assessed upon the railroads rell.

of the State, one-half thereof according to Salomon & Dulon, for applt. the net income and the other half accord. Theall & Bean, for respt.

ing to the length of the main track or tracks Held, That Levy was not in pos

(§ 13, Chap. 353, Laws of 1882), must be

apportioned in this latter respect accordsession as assignee nor as under

ing to the total length of main track and tenant of plaintiff. The effect of not by the length of one track. the transaction was a surrender

In making such apportionment the action by operation of law of the term

of the comptroller and State assessors is

quasi judicial and can be reviewed on created by the lease from Morrell

certiorari. to plaintiff. Had there been an And where the apportionment had been conunder letting by plaintiff to Levy, cluded and part of the assessment had been there would also have been a sur

paid in relief will be granted a road

assessed upon an improper basis, it aprender, because there was a sub

pearing that the roads which had already stitution of Levy in place of plain- paid and which were interested to retain tiff. Taylor's L. & T., $ 514. But the basis adopted had notice of this prothis case is much stronger.

ceeding and were heard in this court. The assent of the lessee to the By S 13, Chap. 353, Laws of

1882, defendants, the comptroller no tax roll or warrant which is and State assessors, are to assess beyond their reach. The assessthe expenses of the railroad com. ment is undoubtedly in their posmission upon each of the railroads session, and so far as we can see of the State; one-half of the ex- they are legally its custodians. penses is to be apportioned in pro- Code, $ 2129. Restitution

Restitution may be portion to net income and the other awarded to railroads which have half in proportion to the length of paid too much. Code, $ 2142. The the main track or tracks." The determination may be modified, relator complains of the assess- not reversed, necessarily. S 2141. ment as to length of track. The The return to the writ only shows assessment was made upon the that several companies have paid. basis of the length of one track. Any party interested in upholding The relator, a single track road, the decision may come in. $2137. claims that this method discrimi- And in fact the railroads which nates against it in favor of double have paid have been heard here. tracks and insists that the assess- On the merits we think the relament should be on the total length tors right. The intention of the of main tracks, whether one, two, legislature seems to have been to three or four in number. This apportion one-half of the expenses assessment was made June 30, according to net income, but as a 1986, and part of it had been paid road might not be profitable and in. This is a certiorari to review yet should pay something, the the apportionment.

other half was to go according to J. B. Kerr, for relator.

what might be considered approxD. O'Brien, for respts.

imately the magnitude of road-a Held, That the proper basis was basis which would measure apthe total length of the main tracks. proximately the labor bestowed The respondents act in a quasi ju- on it by the railroad commissiondicial character. They are to as- ers. The words "track or tracks" certain and determine the net in- are used, and plainly this does not come, how long the main tracks mean a single track. Also the anare and what is meant by this nual reports required by Chap. 575, phrase. Their decision takes from Laws of 1880, sustain this conone road and imposes on another struction. In them the several a charge. Such an apportionment tracks on the main line are spoken as this requires the decision of of and they are distinguished from matters of law and fact.

sidings and turn-outs. It is not too late for the relators It is also said that the assessment to obtain relief. The respondents is to be laid on the roads “accordare not required to issue any war- ing to their means.” If this is to rant and the assessment, it would be taken as explaining the more seem, is to be collected under definite language which follows in Chap. 542, Laws of 1880; that is, the statute we should say that of in an action by the People. There is two roads, one single and the other

double tracked and of equal length, | $174.12 of the $202.42 disbursed by the latter had double the means' the moving party herein was exof the former.

pended by him for a stenographic The assessment should be re- report of the examination de duced according to the above bene esse of one Catharine Moore, views.

the balance of $28.80 was paid the Opinion by Learned, P. J.; stenographer for a copy of the Landon, J., concurs ; Bockes, J., testimony actually taken at the dissents.

trial.

Richards & Heald, for contestSURROGATES. COSTS.

ant.

C. H. Woodbury, for exrx. N. Y. SURROGATES COURT.

Held, That subdivision third of In re .estate of James Griffith $ 2558, Code Civ. Pro., provides Henry, deceased.

that in probate controversies “the Decided Dec 17, 1886.

surrogate may order a copy of the The surrogate is not authorized under s stenographer's minutes to be fur

nished to the contestant's counsel, 2558 of the Code of Civil Procedure to charge upon the estate the expense of a and charge the expense thereof to stenographer's report of testimony fur- the estate if he shall be satisfied nished to an unsuccessful contestant ex

that the contest is made in good cept where such testimony is taken in the course of the actual trial of a proceeding

faith." in the Surrogates Court. Section 2541, In view of this provision and of 2512 and 2543 of the Code relate exclusive- the opinion expressed in my memly to minutes of testimony taken in the

orandum of October 4, 1886 (to course of the actual trial of a proceeding in the Surrogates Court.

the effect substantially that the The court cannot allow out of the estate to contest was made in good faith), I

an unsuccessful contestant the expense of should feel bound to allow the pea stenographic report of the examination

titioner out of the assets of the de bene esse of a witness whose deposition was not read at the trial nor returned in

estate for any reasonable and the manner provided by $ 880 of the Code, proper expenses incurred by bim and where the way was not paved for its in obtaining a copy of such minintroduction by showing that deponent

utes as are referred to in SS 2541, had died, that she was absent from the State or unable to attend the trial by rea- | 2542, and 2513 of the Code and of son of her confinement in prison or jail, such only. Those sections relate or because of insanity, sickness or other exclusively to minutes of the testiinfirmity.

mony taken in the course of the The unsuccessful petitioner for actual trial of a proceeding in the the revocation of the probate of Surrogates Court. The item of this testator's will asks by his $174.12 above referred to cannot present application that he be al- be properly allowed, because the lowed out of the assets of the sum was expended for a stenoestate the sum of $202.42 •as and graphic report of the examination for his expenses for stenographer's de bene esse of one Catharine minutes.” It is not disputed that Moore, which deposition was not

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