arbitrary front-foot rule, and lay assessments on some other basis. So far, then, as the board is concerned, the statute excludes the consideration of special benefits actually received.

But it is claimed that amended section 75 gives the circuit court, when the contractor comes to foreclose his lien, a power that renders harmless the arbitrary front-foot method required of the board of public works. The section states that the property owner who has not signed a waiver "may contest the amount of his assessment."

This

is construed to mean that the property owner may require the court to go into the question of special benefits actually received as a matter of fact, and to enter judgment for an amount not exceeding such benefits. For reasons set forth at length in the dissenting opinion in Adams v. City of Shelbyville (Ind. Sup.) 57 N. E. 125, I think this method of interpretation ignores the context, disregards preceding sections, and violates the entire scope and manifest intent of the act. Furthermore, in my judgment, the method is self-destructive by proving that the property owner would have the same right to require the circuit court to determine from evidence what his special benefits actually were, even if the words in question were omitted from the statute. The interpretation results from the following argument, as I understand it: The constitutional principle requiring that a special assessment for street improvement shall not exceed the special benefits in fact received is a limitation and restriction upon the amount of such assessment; therefore the words, "may contest the amount of his assessment," include the right of the property owner to show that his assessment was not made according to the constitutional principle and the power of the court to hear and determine what the assessment should be according to the constitution. In my opinion, a property owner need not depend upon the grace of the legislature to enable him to assert in court a right conferred directly by the constitution. If this be true, it would follow that when the contractor begins his foreclosure suit in a court of equity the defendant would have the right to answer that the assessment was not made according to the constitutional principle, without having to point the court to some statute authorizing that defense. And this result, I take it, is arrived at by the majority in holding that "any mode of assessment prescribed by the legislature, whether the front-foot rule or any other, is to be regarded as subject to this condition (the constitutional restriction), and, unless inquiry into the question of special benefits is excluded or prohibited by the statute, such inquiry may properly be made by any tribunal before which the question of the collection of an assessment might be brought." That is, the statute requires the board of public works to make the assessments by the front-foot rule; but the contractor must

go into court to foreclose, and the court, unless prohibited by statute, may inquire into special benefits in fact received, and render judgment for the amount thereof. It is plain that the omission of the words from the statute, "may contest the amount of his assessment," would not be a statutory prohibition of the right of the court to conduct an inquiry into special benefits.

So the question becomes: What is the power of a court of equity in a foreclosure suit wherein the plaintiff seeks to recover upon a special assessment for street improvements, laid by the assessing officers according to the front-foot rule, under a statute that does not authorize them to pursue any other method? The property owner answers that the assessment was made by the board of public works, the assessing officers, according to an unconstitutional method. The plaintiff replies, in avoidance, that the court is a court of equity, and has the power in this proceeding to make and collect an assessment according to constitutional principles. In coming to a conclusion that would require circuit courts to sustain an act upon such a reply, the majority hold, as I understand them, that the general grant of power to improve streets carries with it as an incident the right to use the means essential to the legitimate exercise of that power. In concrete form, and applied to the present case, the proposition is this: The city has a general grant of power to improve streets. Even if the city officers are required to make the assessment by the front-foot rule, the court, in a suit to foreclose such an assessment, has the right, as an incident to the city's general power, to use the means essential to the constitutional exercise of the power to improve streets.

In further support of their conclusion, the majority apply to the assessment made by the board of public works the holding in Adams v. City of Shelbyville, that the engineer's report by the front-foot rule, as required by section 6 of the Barrett law, was to be treated only as prima facie correct. But there is a vast difference between the Barrett law and the Indianapolis charter. Under the Barrett law, it was held that the front-foot rule prescribed in sections 3 to 6 was not binding upon the council, because in section 7 was found a power in the council, on a hearing after notice to the property owners, to change the basis from frontage to special benefits actually received, and that there was no assessment until one was made by the council after the hearing. Under the Indianapolis charter there is no provision similar to section 7 of the Barrett law. The board of public works are definitely commanded to assess by frontage. It is not contended that they may take actual special benefits into account. The contractor brings into court an assessment by frontage. If the court is not limited to determining whether or not the assessment is correct by the rule under which the statute command

ed the assessing officer to lay it (and on this question alone is the assessment merely prima facie correct), but has the power to decide what the property owner ought to pay by the rule of actual special benefits, it was supererogation for the court to base its decision upholding the Barrett law on the power given by section 7 to the assessing officer to adopt actual special benefits as the basis of assessment; for under the Barrett law, as well as under the Indianapolis charter, the collection of assessments may be resisted in court.

The power of a court of equity in a foreclosure suit upon a special assessment, laid by the city's assessing officers according to frontage, was definitely decided, in my opinion, by the supreme court of the United States in the Village of Norwood-Baker Case. The Ohio statute gave the village the option of adopting by ordinance the front-foot method or the method of measuring the assessments by benefits actually received. The village chose the front-foot method. The court said: "The assessment was in itself an illegal one, because it rested upon a basis that excluded any consideration of benefits. A decree enjoining the whole assessment was therefore the only appropriate one." The court announced the self-evident proposition that the basis of frontage in and of itself necessarily excludes the consideration of special benefits actually received. If this be true of an assessment by frontage under a statute that gave the village an option of methods, why is it not true of an assessment by frontage under a statute that gives the city no option?

The supreme court of the United States decided that "a decree enjoining the whole assessment was therefore the only appropriate one," because, as I view it, the court of equity, when the defendant interposed his constitutional guaranties as a defense, as he had the right to do without the consent or over the prohibition of the legislature, was bound to protect his rights by declaring the statute that authorized the frontage method and the ordinance under that statute to be unconstitutional. But this court is now deciding (what the supreme court of the United States had an opportunity and refused to

hold) that it is the duty of the court of equity to treat an assessment by frontage, which is final so far as the city is authorized to act, as only prima facie evidence of the amount the defendant ought to pay on the basis of special benefits actually receiv ed, and to determine from all the evidence what the amount really is. Thus, the court of equity lays a constitutional assessment and enters final judgment for its payment in the one proceeding. Thus, the property owner is given no opportunity to pay his assessment laid according to constitutional principles, except with the addition of costs and his adversary's attorney's fees, though he may have stood ready from the beginning to pay his assessment on that basis if the city could and would have given him the chance. Thus, the court of equity, exclusively an agency of the judicial department of the state, provides the method of laying assessments, exclusively a power of the legislative department, and makes the assessment, exclusively a function of the administrative department. Thus, the court of equity is required to hold an act which commands the city to assess by frontage to be unobnoxious to the constitutional guaranty of the basis of actual benefits, because it is the duty of the court of equity to disregard the basis of the assessment sued upon (and therefore the statute that prescribed that basis), and to inquire de novo, and determine for itself. what the assessment should be on the constitutional basis.

It may be that the supreme court of the United States will decide that a controversy over street assessments between citizens of the same state, under a statute providing ample notice of assessments by frontage. and affording due opportunity to property owners to be heard on the question whether the assessments have been equally and properly apportioned by frontage, presents no federal question. It may be that the rulings announced in Davidson v. New Orleans, 96 U. S. 97, 24 L. Ed. 616, and in other cases cited in the majority opinion herein, will be held to be controlling in cases like the present one. But until then I think the principles promulgated in Village of Norwood v. Baker should be frankly followed.

ADAMANT MFG. CO. OF AMERICA, Respondent, v. BACH, Appellant. (Court of Appeals of New York. May 8, 1900.) Edwin L. Kalish, for appellant. Henry H. Abbott, for respondent.

PER CURIAM. Judgment and order affirmed, with costs, on prevailing opinion below. 26 App. Div. 255, 50 N. Y. Supp. 12.

PARKER, C. J., and O'BRIEN, BARTLETT, HAIGHT, MARTIN, VANN, and LANDON, JJ., concur.

ALLEN et al. v. STEVENS et al. (Court of Appeals of New York. Feb. 6, 1900.) Motion for reargument denied, with $10 costs. See 161 N. Y. 122, 55 N. E. 568.

ALYEA et al., Appellants, v. CITIZENS' SAV. BANK et. al., Respondents. (Court of Appeals of New York. Feb. 27, 1900.) Hector M. Hitchings, for appellants. John Alex Beall, for respondents.

PER CURIAM. Judgment affirmed, with costs, on opinion below. 12 App. Div. 574, 42 N. Y. Supp. 185.

PARKER, C. J., and GRAY, O'BRIEN, HAIGHT, LANDON, CULLEN, and WERNER, JJ., concur.

pellants to file a new undertaking on appeal from a judgment and order of the appellate division of the supreme court in the Third judicial department, entered May 6, 1898 (30 App. Div. 121, 51 N. Y. Supp. 846), affirming a judgment in favor of plaintiffs entered upon the report of a referee. The motion was made upon the ground that since the execution of the undertaking the circumstances of the sureties have become so precarious that there is reason to apprehend that such undertaking is not sufficient for the security of the respondents. Lewis E. Carr, for the motion. John T. Norton, opposed. Motion for new undertaking, etc., denied, without costs.

AULTMAN & TAYLOR CO., Appellant, v. SYME et al., Respondents. (Court of Appeals of New York. May 22, 1900.) Motion for reargument denied, with $10 costs. See 163 N. Y. 54, 57 N. E. 168.

AULTMAN & TAYLOR CO., Appellant, v. SYME et al., Respondents. (Court of Appeals of New York. June 19, 1900.) Motion to amend remittitur denied, with $10 costs. See 163 N. Y. 54, 57 N. E. 168.

AUSTIN et al., Appellants, v. SLOCUM et al., Respondents. (Court of Appeals of New York. April 20, 1900.) Motion to prefer an appeal from a judgment of the appellate division of the supreme court in the First judicial department, entered February 19, 1900 (62 N. Y. Supp. 383), affirming a judgment in favor of defendants, and an order denying a motion for a new trial. The motion was made upon the ground that the appeal is from an adjudication upon a will in which the executors are joined as parties defendant, and therefore is entitled to preference under subdivision 5 of section 791 of the Code of Civil Procedure. Greene & Stotesbury, for the motion. No opinion. Motion denied, without costs.

BAKER et al., Respondents, v. KOERNER et al., Appellants. (Court of Appeals of New York. June 5, 1900.) Simon Fleischmann, for appellants. Tracy C. Becker, for respondents.

PER CURIAM. Judgment affirmed, with costs. See 28 App. Div. 622, 51 N. Y. Supp. 1139.

PARKER, C. J., and GRAY, O'BRIEN, MARTIN, LANDON, and WERNER, JJ., concur. HAIGHT, J., not voting.

V.

BALDWIN et al., Appellants, PROVIDENT SAV. LIFE ASSUR. SOC. OF NEW YORK, Respondent. (Court of Appeals of New York. April 6, 1900.) Charles A. Boston, for appellants. William T. Gilbert, for respondent. PER CURIAM. Judgment and order affirmed, with costs. See 23 App. Div. 5, 48 N. Y. Supp. 463.

PARKER, C. J., and GRAY, BARTLETT, MARTIN, and WERNER, JJ., concur. VANN, J., not voting.

In re BARKLEY. (Court of Appeals of New York. Jan. 23, 1900.) Stephen K. Williams and Francis M. Finch, for appellants. Frank C. Sargent, for respondent.

PER CURIAM. Appeal dismissed, without costs. See 42 App. Div. 597, 59 N. Y. Supp. 742.

PARKER, C. J., and GRAY, O'BRIEN, BARTLETT, HAIGHT, MARTIN, and VANN, JJ., concur.

BELT et al., Appellants, v. AMERICAN CENT. INS. CO., Respondent. (Court of Appeals of New York. May 8, 1900.) William H. Hamilton, for appellants. Michael H. Cardozo, for respondent.

PER CURIAM. Judgment and order affirmed, with costs. See 29 App. Div. 546, 53 N. Y. Supp. 316; 55 N. E. 1093.

PARKER, C. J., and O'BRIEN, BARTLETT, HAIGHT, MARTIN, VANN, and LANDON, JJ., concur.

BERGEN et al., Appellants, v. HITCHINGS, Respondent. (Court of Appeals of New York. March 20, 1900.) Horace Secor, Jr., for appellants. Hector M. Hitchings, for respondent.

PER CURIAM. Appeal dismissed, with costs. See 22 App. Div. 395, 48 N. Y. Supp. 96.

PARKER, C. J., and GRAY, BARTLETT, MARTIN, VANN, CULLEN, and WERNER, JJ., concur.

BIDDISCOMBE, Appellant, v. CAMERON et al., Respondents. (Court of Appeals of New York. Jan. 9, 1900.) John Brooks Leavitt, for appellant. Leo Everett and Henry Galbraith Ward, for respondents.

PER CURIAM. Order and judgment affirmed, with costs. All concur, except MARTIN, J., dissenting. See 35 App. Div. 561, 55 N. Y. Supp. 127.

BILLINGS et al., Respondents, v. LOOMIS et al., Appellants. (Court of Appeals of New York. May 15, 1900.) Raymond Cobb, for appellants. Louis L. Waters, for respondents.

PER CURIAM. Judgment and order affirmed, with costs. See 12 App. Div. 624, 43 N. Y. Supp. 1150.

PARKER, C. J., and GRAY, BARTLETT, MARTIN, VANN, CULLEN, and WERNER, JJ., concur.

BINGHAMTON TRUST CO., Respondent, v. WALES, Sheriff, Appellant. (Court of Appeals of New York. April 20, 1900.) Motions to correct the record by inserting therein a certified copy of a memorandum showing that the decision of the appellate division was unanimous, and by striking therefrom certain papers used on a motion to set aside the report of the referee, and to dismiss an appeal from a judgment of the appellate division of the supreme court in the Third judicial department, entered September 19, 1899 (43 App. Div. 620, 60 N. Y. Supp. 1133), affirming a judgment in favor of plaintiff entered upon the report of a referee. The motion to dismiss the appeal was made upon the grounds that the appeal cannot be taken as of right to the court of appeals; the judgment of the appellate division having been unanimous, and said appellate division not having allowed the appeal or certified that questions of law have arisen which ought to be reviewed by this court. W. J. Welsh, for the motion. T. B. Merchant, opposea.

PER CURIAM. Motion to amend record by inserting memorandum or certificate showing that the decision of the appellate division was unanimously denied, but without prejudice to an application to the appellate division for an order amending the order or judgment of affirmance

Mo

BOYLE, Respondent, V. DEGNON-MeLEAN CONST. CO., Appellant. (Court of Appeals of New York. June 12, 1900.) tion to dismiss an appeal, by permission, from a judgment of the appellate division of the supreme court in the Second judicial department, entered January 10, 1900 (47 App. Div. 311, 61 N. Y. Supp. 1043), affirming a judg ment in favor of plaintiff entered upon a verdict and an order denying a motion for a new trial. The motion was made upon the grounds that the only question presented by the record is whether there is evidence supporting or tending to sustain a verdict not directed by the court, that the appellate division has unanimously decided that there was such evidence, and that such decision is not reviewable by this court. Edmund D. Hennessy, for the motion. George R. Malby, L. Sidney Carrère, and Herbert C. Smyth, opposed. Motion granted, and appeal dismissed, with costs.

BOYLE, Appellant, v. STATEN ISLAND & S. B. LAND CO., Limited, Respondent. (Court of Appeals of New York. May 11, 1900.) Motion to withdraw an appeal from a judgment of the appellate division of the supreme court in the First judicial department, entered June 10, 1898 (17 App. Div. 624, 45 N. Y. Supp. 496), reversing a judgment in favor of plaintiff entered upon the report of a referee. The motion was made upon the ground that, in view of recent decisions of the court of appeals, appellant is advised that said court has no jurisdiction to hear the appeal. Cary & Whitridge, for the motion. Robert L. Har rison, opposed. Motion denied, with $10 costs.

BOYLE, Appellant, v. STATEN ISLAND & S. B. LAND CO., Limited, Respondent. (Court of Appeals of New York. June 5, 1990.) Willard Parker Butler and Frederick W. Whitridge, for appellant. Robert L. Har rison and W. W. MacFarland, for respondent.

PER CURIAM. Order affirmed and judg ment absolute ordered for defendant on the

stipulation, with costs. See 17 App. Div. 624, 45 N. Y. Supp. 496.

PARKER, C. J., and GRAY, O'BRIEN, HAIGHT, MARTIN, LANDON, and WERNER, JJ., concur.

BRADLEY & CURRIER CO., Limited, Respondent, v. WARD et al., Appellants. (Court of Appeals of New York. March 20, 1900.) Henry K. Davis, for appellants. Austin E. Pressinger, for respondent.

PER CURIAM. Judgment affirmed, with costs. See 15 App. Div. 386, 44 N. Y. Supp. 164.

PARKER, C. J., and BARTLETT, HAIGHT, MARTIN, VANN, and LANDON, JJ., concur. O'BRIEN, J., not voting.

BREESE, Respondent, v. GRAVES et al., Respondents (ATTORNEY GENERAL, Appellant). (Court of Appeals of New York. June 22, 1900.) Frank Hiscock, for appellant. C. Carskaddan, for respondent Breese. Augustus C. Stevens and George R. Cook, for respondents Graves et al.

PER CURIAM. Appeal dismissed, without costs. 47 App. Div. 634, 62 N. Y. Supp. 1133.

PARKER, C. J., and O'BRIEN, BARTLETT, HAIGHT, VANN, LANDON, and CULLEN, JJ., concur.

BROADBELT, Respondent, v. LOEW, Appellant. (Court of Appeals of New York. April 17, 1900.) David McClure, for appellant. John Frankenheimer, for respondent. PER CURIAM. Judgment and order affirmed, with costs, on opinion below. 15 App. Div. 343, 44 N. Y. Supp. 159.

GRAY, O'BRIEN, HAIGHT, LANDON, CULLEN, and WERNER, JJ., concur.

BRODERICK, Appellant, V. CITY OF YONKERS et al., Respondents. (Court of Appeals of New York. May 22, 1900.) William Riley, for appellant. James M. Hunt, for respondents.

PER CURIAM. Judgment affirmed, with costs, on prevailing opinion below. 22 App. Div. 448, 48 N. Y. Supp. 265.

PARKER, C. J., and GRAY, BARTLETT, MARTIN, VANN, and WERNER, JJ., con

cur.

In re BRUNDAGE. (Court of Appeals of New York. Jan. 16, 1900.) Motion to open default taken for failure to file the return herein after due notice, and to reinstate an appeal from an order of the appellate division of the supreme court in the Fourth judicial department, entered September 5, 1898 (31 App. Div. 348, 52 N. Y. Supp. 362), which reversed an order of the surrogate of Allegany county assessing and fixing a tax under the transfer tax act upon the interests of certain legatees of the estate of Benjamin C. Brund57 N.E.-70

age, deceased. Joseph F. Rice, for the motion. F. A. Robbins, opposed. No opinion. Motion denied, with $10 costs.

BUFFALO DOCK CO., Respondent, v. LADENBURG et al., Appellants. (Court of Appeals of New York. March 27, 1900.) Stevenson Burke and Adelbert Moot, for appellants. John G. Milburn, for respondent.

PER CURIAM. Judgment affirmed, with costs, on opinion at special term. See 19 App. Div. 35, 46 N. Y. Supp. 1067.

PARKER, C. J., and O'BRIEN, BARTLETT, HAIGHT, MARTIN, VANN, and LANDON, JJ., concur.

BUFFALO LOAN, TRUST & SAFE-DEPOSIT CO., Respondent, v. MEDINA GAS & ELECTRIC LIGHT CO. et al., Appellants. (Court of Appeals of New York. March 20, 1900.) Motion for reargument denied, with $10 costs. See 162 N. Y. 67, 56 N. E. 505.

BURGES, Respondent, v. JACKSON et al., Appellants. (Court of Appeals of New York. April 3, 1900.) Edward W. S. Johnston, for appellants. Charles A. Webber, for respondent.

PER CURIAM. Judgment and order affirmed, with costs, on opinion below. 18 App. Div. 296, 46 N. Y. Supp. 326.

PARKER, C. J., and GRAY. BARTLETT, MARTIN, VANN, and WERNER, JJ., con

cur.

CAHN et al., Respondents, v. STOVER, Appellant. (Court of Appeals of New York. April 24, 1900.) John A. Van Arsdale, for appellant. George Clinton, for respondents.

PER CURIAM. Judgment and order affirmed, with costs. See 25 App. Div. 630, 50 N. Y. Supp. 1124.

PARKER, C. J., and GRAY, O'BRIEN, HAIGHT, LANDON, CULLEN, and WERNER, JJ., concur.

CALLANAN, Respondent, v. CLEMENT, APpellant. (Court of Appeals of New York. March 20. 1900.) Edgar T. Brackett, for appellant. James W. Verbeck, for respondent. PER CURIAM. Judgment and order affirmed, with costs. See 32 App. Div. 631, 53 N. Y. Supp. 1101.

PARKER, C. J., and O'BRIEN, BARTLETT, HAIGHT, MARTIN, and VANN, JJ.,

concur.

CAMERON, Appellant, v. WRIGHT, Respondent. (Court of Appeals of New York. June 5, 1900.) Edward A. Hibbard, for appellant. John E. Parsons and George H. Fletcher, for respondent.

PER CURIAM. Judgment and order affirmed, with costs. See 21 App. Div. 395, 47 N. Y. Supp. 571.

PARKER, C. J., and GRAY, O'BRIEN, HAIGHT, MARTIN, LANDON, and WERNER, JJ., concur.

In re CAMP. (Court of Appeals of New York. Jan. 30, 1900.) Frederic B. Jennings, for petitioners. William C. Beecher, for Nelson Cross, executor, etc.

PER CURIAM. Judgment and order affirmed, with costs, on opinion below. 18 App. Div. 110, 45 N. Y. Supp. 600.

PARKER, C. J., and O'BRIEN, BARTLETT, HAIGHT, MARTIN, VANN, and LANDON, JJ., concur.