after the delivery of a lease, etc., had no application to the present case, and the only question was whether relators were entitled to redeem upon payment of seven or fourteen per cent.

That the policy of the Consolidation Act is to divide all the several periods in which taxes may be paid into three parts, and to adjust the rate of interest according as the taxes are paid during the one or the other of those periods. That § 917 declares that if the tax shall remain unpaid for the period of sixty days after the date of entry thereof in the records seven per cent. interest from such date of entry to date of payment should be collected. That by $ 918 the rate of interest is still stated to be seven per cent. on all arrears of taxes returned to the clerk of arrears from the time the taxes became due. It then says that the rate shall apply to the taxes remaining due and unpaid for the non-payment of which the lands and tenements liable therefor shall have been sold since the 16th of March, 1881, or thereafter, but shall not apply to or affect the rights of purchasers at sales for taxes before March 16, 1881, or to authorize the redemption of lands for sums less than those collectible for such redemption under the provisions of laws then existing.

That up to this point voluntary payments made when due and without resort to sales of lands only are contemplated and the rate of interest is seven per cent. Thence follows § 926, which requires lands to be redeemed, after

a sale thereof and delivery of a certificate to the purchaser, by the payment of the sum prescribed in § 941, which is the purchase price and interest at fourteen per cent.. and that this was the provision applicable to the case at bar.

That the other provisions relating to the redemption of lands after the lease had been given, etc., had no application as above stated. Order affirmed, without costs. Opinion by Macomber, J.; Brady and Daniels, JJ., concur.

CONTRACT. SERVICES. N. Y. COMMON PLEAS. GENERAL TERM. Howson, respt., v. Mestayer, applt.

Decided Dec. 6, 1886.

An effort to obtain other employment is not a condition precedent to plaintiff's right to recover damages from his employer for a wrongful discharge. Prima facie, plaintiff's damage is the amount of the stipulated compensation, and the burden is on defendant to show that through plaintiff's negligence the damages have been increased.

A mere conjecture on plaintiff's part that by obtaining the discharge of another he might get employment in such other person's place, there being no evidence of the salary to be earned, etc., does not amount to proof that plaintiff could have found other employment.

Appeal from judgment entered on verdict and from order denying motion for new trial.

Action for breach of a contract to employ plaintiff in his professional capacity as actor for a specified period of time at a salary of $200 per week. It appeared that prior to the expiration of said

May 1, 1884, of the whole of premises 474 Fourth avenue, to be used for his market and butcher shop and barber shop. He sublet the barber shop, retaining the rest of the premises until January 1, 1886, when he sold out his business to one Levy and gave the latter possession of the premises he, plaintiff, had occupied.

Levy was accepted as tenant by Morrell and paid rent to the latter for the whole premises, including the barber shop, with the assent of plaintiff. Plaintiff's testimony showed that he supposed Levy would be obliged to pay the whole rent while he, plaintiff, would collect and retain the rent of his sub-tenant, defendant. He testified: "I claim the rent of the barber shop was my profit out of the hire of the store;" but it did not appear that he obtained the consent of Levy or the landlord to this arrangement. It appeared that defendant had paid the rent sued for to Levy by direction of Morrell.

Salomon & Dulon, for applt. Theall & Bean, for respt. Held, That Levy was not in possession as assignee nor as undertenant of plaintiff. The effect of the transaction was a surrender by operation of law of the term created by the lease from Morrell to plaintiff. Had there been an under letting by plaintiff to Levy, there would also have been a surrender, because there was a substitution of Levy in place of plaintiff. Taylor's L. & T., § 514. But this case is much stronger.

The assent of the lessee to the

acceptance by the landlord of the new tenant is the principal element of the surrender, and here such assent is indisputable. When plaintiff substituted Levy in his place and assented to the collection of the whole rent from him by the landlord, it operated as a surrender, and upon such surrender the sub-tenant became the immediate tenant of the landlord and liable only to him. 60 N. Y., 252. Judgment reversed, with costs. Opinion by Daly, J.; Larremore, Ch. J., and Van Hoesen, J., con

cur.

RAILROADS.

N. Y. SUPREME COURT. GENERAL TERM. THIRD DEPT.

The People ex rel. The N. Y., Ontario & Western RR. Co. v. Alfred C. Chapin, Comptroller, et al.

Decided Nov., 1886.

The expense of the railroad commission, which is to be assessed upon the railroads of the State, one-half thereof according to the net income and the other half according to the length of the main track or tracks (§ 13, Chap. 353, Laws of 1882), must be apportioned in this latter respect according to the total length of main track and not by the length of one track.

In making such apportionment the action of the comptroller and State assessors is quasi judicial and can be reviewed on certiorari.

And where the apportionment had been con

cluded and part of the assessment had been paid in relief will be granted a road assessed upon an improper basis, it appearing that the roads which had already paid and which were interested to retain the basis adopted had notice of this proceeding and were heard in this court.

By 13, Chap. 353, Laws of

1882, defendants, the comptroller and State assessors, are to assess the expenses of the railroad commission upon each of the railroads of the State; one-half of the expenses is to be apportioned in proportion to net income and the other half in proportion to the length of the main track or tracks." The relator complains of the assessment as to length of track. The assessment was made upon the basis of the length of one track. The relator, a single track road, claims that this method discriminates against it in favor of double tracks and insists that the assessment should be on the total length of main tracks, whether one, two, three or four in number.

This

assessment was made June 30, 1886, and part of it had been paid in. This is a certiorari to review the apportionment.

J. B. Kerr, for relator.
D. O'Brien, for respts.

Held, That the proper basis was the total length of the main tracks. The respondents act in a quasi judicial character. They are to ascertain and determine the net income, how long the main tracks are and what is meant by this phrase. Their decision takes from one road and imposes on another a charge. Such an apportionment as this requires the decision of matters of law and fact.

It is not too late for the relators to obtain relief. The respondents are not required to issue any warrant and the assessment, it would seem, is to be collected under Chap. 542, Laws of 1880; that is, in an action by the People. There is

no tax roll or warrant which is beyond their reach. The assessment is undoubtedly in their possession, and so far as we can see they are legally its custodians. Code, § 2129. Restitution may be awarded to railroads which have paid too much. Code, § 2142. The determination may be modified, not reversed, necessarily. § 2141. The return to the writ only shows that several companies have paid. Any party interested in upholding the decision may come in. § 2137. And in fact the railroads which have paid have been heard here. On the merits we think the relators right. The intention of the legislature seems to have been to apportion one-half of the expenses according to net income, but as a road might not be profitable and yet should pay something, the other half was to go according to what might be considered approximately the magnitude of road-a basis which would measure approximately the labor bestowed on it by the railroad commissioners. The words "track or tracks" are used, and plainly this does not mean a single track. Also the annual reports required by Chap. 575, Laws of 1880, sustain this construction. In them the several tracks on the main line are spoken of and they are distinguished from sidings and turn-outs.

It is also said that the assessment is to be laid on the roads "according to their means." If this is to be taken as explaining the more definite language which follows in the statute we should say that of two roads, one single and the other

In re estate of James Griffith

Henry, deceased.

Decided Dec 17, 1886.

the moving party herein was expended by him for a stenographic report of the examination de bene esse of one Catharine Moore, the balance of $28.80 was paid the stenographer for a copy of the testimony actually taken at the trial.

Richards & Heald, for contest

ant.

C. H. Woodbury, for exrx. Held, That subdivision third of $2558, Code Civ. Pro., provides that in probate controversies "the surrogate may order a copy of the

2558 of the Code of Civil Procedure to charge upon the estate the expense of a stenographer's report of testimony furnished to an unsuccessful contestant except where such testimony is taken in the course of the actual trial of a proceeding in the Surrogates Court. Section 2541,

2512 and 2543 of the Code relate exclusively to minutes of testimony taken in the course of the actual trial of a proceeding in the Surrogates Court.

The court cannot allow out of the estate to

an unsuccessful contestant the expense of a stenographic report of the examination de bene esse of a witness whose deposition was not read at the trial nor returned in the manner provided by § 880 of the Code, and where the way was not paved for its introduction by showing that deponent had died, that she was absent from the State or unable to attend the trial by reason of her confinement in prison or jail, or because of insanity, sickness or other infirmity.

The unsuccessful petitioner for the revocation of the probate of this testator's will asks by his present application that he be allowed out of the assets of the estate the sum of $202.42 “as and for his expenses for stenographer's minutes." It is not disputed that

nished to the contestant's counsel, and charge the expense thereof to the estate if he shall be satisfied that the contest is made in good faith."

In view of this provision and of the opinion expressed in my memorandum of October 4, 1886 (to the effect substantially that the contest was made in good faith), I should feel bound to allow the petitioner out of the assets of the estate for any reasonable and proper expenses incurred by him in obtaining a copy of such minutes as are referred to in §§ 2541, 2542, and 2543 of the Code and of such only. Those sections relate exclusively to minutes of the testimony taken in the course of the actual trial of a proceeding in the Surrogates Court. The item of $174.12 above referred to cannot be properly allowed, because the sum was expended for a stenographic report of the examination de bene esse of one Catharine Moore, which deposition was not