The defendant may within the proper time present his defense, whether it arises upon the facts or the law, by the use of either one or the other of these pleadings, but he cannot, as matter of right, be entitled to serve both as a defense to the same cause of action. By 542 whichever form of pleading he concludes is necessary to present his defense may be amended by him, of course, within twenty days after its service has been made. If it be an answer the facts may be stated in another way or other facts added, or some of those first stated omitted entirely. If it be a demurrer its form may be changed or other additional grounds may be alleged. But an issue of law cannot be changed by an amendment, of course, to an issue of fact, nor can the latter be by such process converted into an issue of law. When the party demurs he elects to admit the facts stated by his adversary and to rest his case upon. the law arising upon these facts which he claims by the demurrer is in his favor. Hence the defendants in this case could have amended their demurrer within the twenty days by the service of another demurrer so changed as to meet the requirements of the case. But they could not amend a demurrer, presenting only a question of law, by serving an answer presenting a question of fact. Such a change of position by the pleader is not in any just sense, and certainly not within the meaning of § 542, an amendment at all, but an entire change of the line of defense from the law to the facts, and is not permitted by either the letter or the spirit of the Code of Civil Procedure. When a party has made a mistake by serving a demurrer when he should have served an answer, he can be relieved from the consequences of his mistake by an application to the court, and in that way permitted to substitute an answer for a demurrer, or vice versa; but such a change cannot be made, a matter of right. The court may allow it to be done when satisfied that justice requires it and upon such terms as it may consider just. The cases of Wise v. Gessner, 47 Hun, 306; 14 N. Y. State Rep., 268, and Smith v. Laird, 44 Hun, 530; 9 N. Y. State Rep., 376, were correctly decided. The order appealed from should be affirmed, with costs. All concur. JEAN R. STEBBINS et al., Resp'ts, v. JAMES KAY et al., App'lts.' (Court of Appeals, Filed October 7, 1890.) 1. MUNICIPAL CORPORATIONS-ASSESSMENTS-SALE. In the assessment for the opening and improvement of Gravesend avenue, Kings county, under Laws 1873, chap. 531, as amended by Laws 1874, chap. 264, the commissioners omitted to certify, as required by § 9 of the act, that the column headed "assessments for construction contained the apportionment and assessment directed by the act. Held, that the requirement was a material one, was mandatory, not directory, and that a sale under such assessment was void. 2. SAME. Where a sale is for the total of two assessments, it is sufficient for the property owner to show that either is invalid. 1 Reversing 22 N. Y. State Rep., 830. APPEAL from judgment of the supreme court, general term, second department, affirming judgment for plaintiff, entered on decision of the court in an action tried without a jury at Kings county circuit. William J. Gaynor, for app'lts; Leslie W. Russell, for resp'ts. PER CURIAM. This is an action in ejectment brought to recover possession of certain premises in the town of Gravesend. The land in question was sold by the state comptroller at the annual tax sale in 1881, and was purchased by the plaintiffs. Chapter 531 of the Laws of 1873, as amended by chap. 264 of the Laws of 1874, provides for the opening and improving of Gravesend avenue, in the county of Kings. Under the authority conferred by these acts the premises in question were assessed the sum of $266 for the purchase of the land required, and the sum of $279 for the construction of the avenue, making a total of $545. Because of the failure to pay this amount the sale above-mentioned was made. The defendants were the former owners and are now in possession of the land in dispute. As the sale was for the total of the two assessments, it is suffi cient for the defendants to show that either was invalid. This they attempt, and we think successfully, to do. Section 9 of the act in question deals with the construction of the roadway and sidewalks. It provides that the requisite amount shall be assessed pro rata upon the lands fronting on the avenue, except that as to lands not fronting on the avenue the commissioners are to assess them as they deem equitable and to make a report. The section then proceeds as follows: "The amounts apportioned and assessed under this section shall be specified in a separate column of said report, to be designated assessments for construction,' opposite the numbers of the several parcels assessed or designated upon the map or maps forming part of said report. The said commissioners shall certify at the end of said report and below their proceedings for the opening of said avenue what was the expense of the publication of such notices for proposals as aforesaid, and what was the amount agreed to be paid to the person or persons with whom they made such contract, and that the apportionment and assessment thereof, as above directed, are contained and stated in said column so designated assessment for construction." The commissioners did certify as to the various items of expense, but wholly omitted to certify that the column headed "assessment for construction" contains the apportionment and assessment directed by the act. The power to levy assessments exists only where it is distinctly conferred by legislative authority. Where the mode is prescribed in which the power is to be exercised it must be followed. The mode in such cases constitutes an essential element in the proceeding. Especially where one claims to hold another's property under a sale for taxes, must one show that every provision designed for the security of the taxpayer has been substantially N. Y. STATE REP., VOL. XXXIII. 10 complied with. Every such provision is mandatory. It is not for the courts to say that the same protection may be obtained by other means. "That which the legislature has directed courts cannot declare immaterial." Merritt v. Village of Portchester, 71 N. Y., 309. No presumption will take the place of the act required. There can be no pretense in the case at bar that there was a substantial compliance with the provisions of § 9 in regard to the certificate. There was no attempt to comply with the last provision in § 9 above quoted. Where a certificate is required, a complete statement of the necessary facts in language other than that authorized by the act would be a substantial compliance with the statute. So the use of synonymous terins in an oath would not render an assessment invalid. But here a certificate as to certain facts is required, and this requirement is entirely ignored. The requirement too is a material one, as above defined; it is mandatory, not directory. It served as a protection to the taxpayer. The legislature desired the commissioners to make a solemn declaration that they had done their duty. To them was confided not merely a bare computation. It was their duty to lay such assessments upon adjoining property as seemed to them equitable. It was, therefore, provided that they should certify that the figures that they had set down opposite the several lots were the apportionments and assessment made by them as directed in the act. Merritt v. Vil. Portchester, supra; People v. Hagadorn, 104 N. Y., 516; 5 N. Y. State Rep., 782; Shattuck v. Bascom, 105 N. Y., 39; 6 N. Y. State Rep., 775. But beyond this the certificate was the formal identification of the roll as the official act of the assessors. It was the only competent evidence of that fact. Upon the roll so certified the jurisdiction of the board of supervisors depends. "Without the certificate the roll would resemble a judgment record without the judgment clause." Van Rensselaer v. Witbeck, 7 N. Y., 517. We think the property owner had the right to demand the certificate, and the whole thereof, and that it is no answer to say that an officer is presumed to have done his duty. We, there fore, hold that the assessment as to the item of $279 is void. We agree with the defendants that §§ 63-73 of chap. 427 of the Laws of 1855 outline simply a scheme of redemption in cases where the land has been illegally sold, and that it was not intended to validate sales made without jurisdiction. Our conclusion is, therefore, that the judgments of the special and general terms should be reversed, and a new trial ordered, costs to abide the event. All concur. THE FIRST NATIONAL BANK OF GLOUCESTER, Resp't, v. JOHN Cox et al., App'lts.' (Court of Appeals, Filed October 7, 1890.) BILLS AND NOTES-EVIDENCE. Defendants made a promissory note payable to the order of Stinson, who sold it to plaintiffs before maturity for value. Defendants, to establish Affirming 23 N. Y. State Rep., 206. the defense that Stinson after the maturity of the note took it up from the bank, and that they had an offset against him, established the fact that after its maturity it was seen in the hands of Stinson's superintendent, who demanded payment thereof from defendants. Held, that the court did not err in directing judgment; that as Stinson, as endorser, had an interest to compel payment, there was nothing in the possession of the note by his superintendent inconsistent with the ownership of plaintiff. APPEAL from judgment of the New York superior court, general term, affirming judgment for plaintiff entered upon verdict as directed by the court. Jesse Johnson, for app'lts; Harriman & Fessenden, for resp't. FINCH, J.-The defendants, under the name of John Cox & Co., made the promissory note in controversy payable to the order of Stinson, who sold the same to the plaintiff before maturity and for value. So much was established beyond contradiction. The defense attempted was that Stinson had taken up the note from the bank after its maturity, and that the defendants had an offset against him. The evidence contradicts any such transfer positively, for it shows that when Stinson was requested by the bank to take up the note he declined on the ground that he was unable to pay it, and requested that it be collected of the makers. The bank sent it to its New York correspondent with directions to deliver it to one Booth for collection. Booth delivered it to the plaintiff's attorney, who brought this action. The plaintiff produced the note on the trial and put it in evidence. The only fact established on the part of the defense was that after the maturity of the note it was seen in the hands of one Eaton, who was the superintendent of Stinson and in his employ. It did not appear how Eaton came to have the note, but merely that he demanded payment. Eaton's further declarations were excluded for want of proof that he acted with the knowledge and under the authority of plaintiff. The court directed judgment for the plaintiff and that is claimed to have been erroneous on the ground that there was a question for the jury as to the ownership of the note. We think the trial judge was right. There was nothing in the possession of the note by Eaton inconsistent with the ownership of plaintiff. Stinson, as endorser, had an interest to compel payment by the makers, and that some employee of his should have presented the note and sought payment is entirely consistent with the ownership of the bank and the relations of the parties. The proof did not at all contradict the case made in behalf of the plaintiff. The judgment should be affirmed, with costs. All concur. THE CORN EXCHANGE BANK, Resp't, v. ALPHONZO W. BLYE, Receiver, App'lt.' (Court of Appeals, Filed October 7, 1890.) 1. REPLEVIN-NO ACTION MAINTAINABLE FOR DEPRECIATION OF BONDS DURING APPEAL. Where an appeal was taken by defendant in an action of repleviu from 1 Reversing 31 N. Y. State Rep., 469. a judgment awarding possession of certain bonds to plaintiff and pending such appeal the bonds depreciated in value, a second action cannot be maintained for such depreciation. 2. SAME. The taking of such an appeal by defendant does not constitute a new and separate detention of plaintiff's bonds, because they remained in defendant's possession after delivery to him by the sheriff in accordance with the law of the chosen remedy. APPEAL from judgment of the supreme court, general term, second department, affirming judgment overruling demurrer to complaint. W. Van Namee, for app'lt; L. A. Gould, for resp't. FINCH, J.-The judgment rendered in this case is without precedent, and opens new possibilities of litigation if sustained by this court. The question arose on demurrer. The complaint alleged that the defendant became receiver of the Middletown National Bank in November, 1884, and as such receiver came into possession of forty-six coupon bonds of the West Point Manufacturing Company, a corporation organized under the laws of Nebraska; that plaintiff was entitled to the possession of said bonds, having a special property therein; that in December, 1884, the plaintiff demanded of defendant possession of said bonds, which was refused; that plaintiff thereupon brought an action in the supreme court to recover possession of the bonds and damages for their detention; that the defendant interposed as a defense a claim of ownership on the part of the bank, a denial of plaintiff's title, and the allegation that Poole and Sherman were the real parties in interest. The complaint further alleged that the issues thus raised were tried before the court and a jury in November, 1885, and such issues were determined wholly in plaintiff's favor and judgment was rendered in his favor for a return of the bonds or their value fixed at the sum of $23,000 and for damages occasioned by the detention to the amount of $2,315.88; the judgment further providing for a recovery of the adjudged value if a return could not be had; that the date of the trial was November 5, 1885; that the defendant appealed to the general term, where the judgment was affirmed, and then to this court, where it was again affirmed, and upon filing the remittitur in the supreme court final judgment was entered on or about June 10, 1889; that defendant "failed, neglected and refused to deliver to plaintiff said bonds" at the time of the trial or thereafter until on or about June 14, 1889; and that during such interval the bonds "were injured, damaged and depreciated in value in the sum of twenty thousand dollars," and judgment was demanded accordingly. To this complaint the defendant demurred, claiming that it stated no cause of action, but the demurrer was overruled and that decision affirmed by the general term. The complaint discloses a single tort which has formed the subject of an action and been redressed by a judgment therein. It alleges no new or separate demand, but simply a continuance of the refusal to obey it after judgment and pending the |