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ASSESSORS.

TRY IN ROLL.

WRONGFUL EN- that the plaintiff has no invididual in-
terest distinct from every taxpayer.
Judgment affirmed with costs.
Opinion by Learned, P. J.; Bockes
and Boardman, JJ., concurring.

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

Youmans, applt., v. Simmons, respt.
Decided May, 1876.

An action will not lie against an asses
sor for a wrongful entry on the rolls
of the value of property.

Action against an assessor to recover damages for an unlawful assessment. The complaint was dismissed on the

PRACTICE. CHANGE OF VENUE.
APPEAL.

N. Y. SUPREME COURT. GEN'L TERM,
FOURTH DEPARTMENT.

Kellogg, applt., v. Smith, respt.
Decided April, 1876.

trial. It was admitted on the arg-Whether an order of special term chang

ment that the action of the assessors in determining the value of property is judicial, and further, that for a judicial act, even when maliciously done, an action does not lie. The assessors had put the value at about one third of the real value.

ing place of trial for convenience of witnesses is appealable, quære. Where papers under such an order are transmitted from one defendant to another the appeal must be taken in the latter.

This is an appeal from an order made at the Otsego special term, changing the place of trial from Oneida to Otsego county, for the convenience of wit

nesses.

The order was made at a special term in Otsego, held March 30, 1875, and entered in Oneida county clerks' office, April 5th, and the papers transmitted entered in the Otsego county clerk's to the clerk of Otsego, and filed and office April 6th.

Youmans & Niles, for applt. Gleason & Murray, for respt. Held, That the act of the assessors in entering upon the assessment roll the value of real and personal property, after they have determined the same, cannot be separated from the act of determination, and that therefore an action will not lie for a wrongful entry. The plaintiff claims the act of entry to be ministerial, but it is difficult to see what judicial act takes place until the final entry of value in the roll and its completion. Prior to that everything is incomplete, liable within certain restrictions to be modified. If the assessors knowingly and falsely determined the value at less than they knew it to be, If the order in this case were appealstill this was a judicial act, and one for able (which we are not prepared to adwhich they are not liable. The court mit. On the contrary, we think othersuggest without passing upon the point, wise, and consider that it involves no that the doctrine of Rosevelt v. Draper, substantial right), we think it can only 23 N. Y. 318, may defeat the plaintiff; that the alleged wrongful act affected every taxpayer in the same manner, and

The notice of appeal is dated the 8th May, and is addressed to and was served upon both the clerks of Oneida and Otsego counties.

II. Kellogg, for applt.

J. L. Duddelston, for respt.

be heard in the Third Department. After the papers were transmitted from the Oneida to the Otsego county clerk's of

fice, the place of trial of the cause was at his decease, or leaving issue, and to be changed to that county, and the appeal held by his executors as trustees for could only be made to and heard in the them, the income to be applied to the 3d department. use of said children during the life of The notice of appeal in such case each. The executors were authorized, must be served upon the clerk having if they deemed it judicious and proper, the custody of the papers in the cause. to make advances, in their discretion, to These papers, when the appeal was each of the children respectively out brought, were in the lawful custody of of the capital of his or her share, from the clerk of Otsego county. If an ap- time to time, in such amounts as might peal had been immediately brought seem safe and conducive to the true infrom the order with a stay of procced- terests of the beneficiary. The execuings, before the papers had been trans- tors concluded that under the power mitted by the clerk of Oneida to the conferred upon them an advance of clerk of Otsego, then the appeal could $100,000 to each of the children would properly have been brought to a hearing be proper, but doubting their power to in this department. do so neglected to make the advances. Plaintiffs, who are the three surviving children of the testator claimed that, the executors having exercised their discretion in regard to the payment, they were entitled to have decreed to them, generally, the payment of said sum, and the Special Term so held.

But in the present state of the cause we think we should decline to hear the appeal, and leave the party at liberty to bring it on to a hearing in the 3d department if he should be so advised, otherwise we should dismiss the appeal. Opinion by E. D. Smith, J.; Mullin, P. J., and Noxon, J., concurring.

TRUST. POWER OF TRUSTEES.

N. Y. COURT OF APPEALS. Roosevelt et. al. applts. and respts. v. Roosevelt et. al. applts. and respts.

Decided March 28, 1876.

A discretion vested in trustees to ad

Geo. G. De Witt & Charles A. Peabody, for applts.

Edward T. Bartlett & Geo. H. Yeaman, for respts.

Held, That the trust created was valid, but that it was the judgment of the executors which was to decide whether the advances should be made and until they gave effect to their judgment by vance certain moneys if they deemed paying over they could change their init proper, is only exercised when the tent and withhold the advancement, money is actually paid, and until and that the judge at Special Term then they may refuse the advance- erred in attempting to control that disment although they may have con-cretion. cluded at one time to pay it.

This action was brought for the construction of a will, the fifth clause of which gave the testator's personal estate not otherwise disposed of to his executors in trust to be divided in as many shares as he had children living

Judgment of General Term affirming judgment of Special Term as to the validity of the trust, and reversing as far as it decreed that the executors should make plaintiffs the advances, affirmed. Per curiam opinion.

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N. Y. COURT OF APPEALS.

Brett et. al. respts. v. First Universal Soc., of Bklyn. applt.

Decided March 28, 1876.

If upon a reference certain facts are

made, or that any money was: ubscrib-
ed, paid or received in pursuance of it.
He did find that B. did not agree to
accept $2,300 in full of his claim, and
that he did not accept that sum in satis-
faction thereof.

A. J. Parker, for respts.
Jesse C. Smith, for applt.

Held, That as the essential facts

not found, and no request made to upor which defendant relied to estabfind them, the appellate court cannot lish an accord and satisfaction were not assume they existed, nor can it look found, and as there was no request to into the evidence to ascertain wheth- find them, the court cannot assume that er facts were proved which if found they existed, neither can it look into the would require the reversal of the evidence to ascertain whether facts judgment. were proved which if found would require a reversal of the judgment.

This action was brought by plaintiffs as assignees of one B. of a part of a claim against defendant, and one C., who held an assignment of the balance of the claim, which was for an alleged balance due B. as treasurer of defendant. It appeared that at a meeting o the church, at which B. was present, after he had ceased to be Treas urer, the pastor of the church stated that B. had authorized him to state that there was a large deficiency in the revenues, that his accounts not being made

Plaintiffs offered evidence of items

omitted by mistake from the account of B. as rendered, this was received under objection

Held, no error.

Judgment of the General Term, affirming judgment for plaintiff on report of referee, affirmed.

Per curiam opinion.

DEMURRER.

up he could not state the exact amount, N. Y. SUPREME COURT. GENERAL TERM.

FIRST DEPARTMENT.

Mary N. Townsend, applt., v. Peter

Decided March 31, 1876.

but that if $2,300 was raised he would
accept it in full settlement of his ac-
counts against the church; that $2,345.80
was raised and paid to B. Defendant's S. Norris, respt.
counsel insisted that this transaction
operated as an accord and satisfaction
of his claim. B. denied that he agreed.
to except $2,300, or that he stated that
he would accept any sum less than the
amount of his debt in full. The referee
did not find that B. assented to the
statement made by the pastor at the
church meeting, or that he heard it, or
that the church or its members accepted
or acted upon the proposition there demurrer.

An allegation in the answer that the
right of action is in a receiver named,
and not in plaintiff, is a proper de-
fence, and not demurrable. Under
this defendant may prove appoint-
ment of receiver, and all facts neces-
sary to establish his title.
General averments of time refer to the
commencement of the action.

Appeal from judgment entered on

the Receiver.

This action was brought to recover might prove the receivership of Foster, $168.00 for the use and occupation of and his title to the cause of action set certain lands, which defendant promis-out in the complaint, and any fact reed to pay one Carey, and which Carey quisite in law to establish the title of afterwards assigned to plaintiff, Defendant, in the third part of his A motion to make the answer more answer alleged "that by virtue of a specific, if that were desirable, was judgment or decree of the Court of plaintiff's proper remedy, not a deCommon Pleas, for the City and County murrer. of New York, dated December 12, 1867, in the action of Mary Carey v. Thomas W. Carey, John A. Foster was appointed Receiver of all the estate, both real and personal, of Thomas Carey,

Judgment affirmed.

Opinion by Davis, P.J.; Brady and Daniels, JJ., concurring.

THIRD DEPARTMENT.

and the said Receiver duly filed his bond TOWN BONDS. ILLEGAL ISSUE. and entered upon the duties of his office, N. Y. SUPREME COURT. GEN'L TERM. and was alone invested with any right or title to the cause of action set forth in the complaint."

To this part of the answer plaintiff demurred. The court at special term overruled the demurrer and gave judg ment for the defendant, on the grund that "the defendant has set up the right of the Receiver as a matter of fact, not of law, and the answer, while it may be general, is not demurrable."

John Townsend, for applt.
Peter S. Norris, for respt.
On appeal

Holton v. Town of Thompson.

Decided May, 1876.

Chap. 809 of laws of 1871 is constitutional. The legislature has power to pass an act ratifying bonds illegally issued.

was

Appeal from a judgment entered on a referee's report. The action brought on coupons of a bond issed by the defendant under laws of 1868, chap. 553, and laws of 1869, chap. 96. The defense was, that the consents given to the bonding of the town did not state the name of the company in whose stock Held, That the answer, though gen- the proceeds were to be invested, and eral, was substantially an averment that the bonds were not sold for cash, that the right of action, at the time but were exchanged directly with the of the commencement of this action, railroad company, in whose interest was vested in and belonged to the Re- the action of bonding the town was ceiver therein named, who had been taken, for stock. duly appointed. The phrase, "Was alone invested with any right or title to the cause of action set forth in the complaint," must be construed to refer to the time of the commencement of 12 N. Y. S. C. R. 475,) That chap. 809 this action, which is the time to which of Laws of 1871 is constitutional. This all similar averments, whether in form act ratifies the acts of the Commissionin the past or present tense, are held to ers in issuing the bonds, and in exrefer. Under this answer defendant changing them for stock, and provides

J. J. Linson, for applt.
T. F. Bush, for respt.

Held, (following Rogers v. Smith,

that the defect in the consents shall not avoid them in the hands of a bona fide holder. In this case the plaintiff was such a holder. The case of Buffalo v. Jamestown R. R. Co., 12 N. Y., S. C. R. 485, is not an authority against holding this ratifying act valid.

Judgment affirmed with costs. Opinion by Learned, P. J.; Bockes and Boardman, J. J. concurring.

ORDER OF ARREST.

N. Y. SUPREME COURT, GENERAL TERM,
FIRST DEPARTMENT.

carried on by him as a dealer in jewel ry and watches.

It was stated in one of the affidavits produced on the hearing of the motion, that the defendant had purchased of the firm of Arnold, Constable & Co., during the same fall over $2500 worth of drygoods, and about $1000 worth of carpets which had not been paid for.

When the goods were purchased at the plaintiffs' store representions were made concerning defendant's circumstances, but as his wife had previously purchased goods there in the defendant's name, which were afterwards paid

Alexander T. Stewart, et al., applts. for by him, no suspicion as to his cir

v. Moses Strasburger, respt. Decided May 26, 1876.

cumstances or credit seems to have existed on the part of the plaintiffs.

When circumstances are so decided as No term of credit was agreed upon, satisfactorily to establish the conclu sion that an intent to defraud exist. but the bill was not presented until the ed when a purchase of goods was latter part of December following the made, they will be sufficient to sus-purchase, and then the defendant failed tain an order of arrest, although no to pay it. oral representations were made at the time of the purchase which were false.

Appeal from order vacating order of arrest.

That the defendant knew of the receipt of the goods at his residence was not denied either by himself or his wife; and when he was asked to pay the bill, he in no way indicated position to pay for or give up the goods. Plaintiff's insisted that the goods were

any

dis

This action was brought to recover the sum of $2,304.23, which was the purchase price of drygoods sold and delivered by plaintiff's on defendant's cred-purchased and procured from them it in the months of November and Defraudulently, and that the fraud was perpetrated by intentionally concealing cember, 1875. from them the condition of defendant's circumstances, and upon that theory the order of arrest was made.

From the affidavits used on the motion, the following facts appear:

Defendant's wife, in her affidavit, denied any knowledge of her husband's circumstances.

That the goods were purchased by the defendant's wife for family use, and were delivered at the defendant's residence in New York city. That at and before the times of the purchases, defendant was insolvent, and in failing circumstances, and on the 14th of December, 1875, made a general assignment for the benefit of his creditors, and closed up the business formerly determined from the circumstances af

Henry II. Rice for applt.
M. L. Townsend for respt.
On appeal.

Held, That whether the debt was fraudulently contracted or not must be

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