the substituted defendants herein. Plaintiff was ignorant of the fact that Duntze owed Austin, Nichols & Co., but did know that he owed said Wagner; and to protect himself against the claim of said Wagner had said Wagner join said Duntze in making the bill of sale to him, said plaintiff. This bill of sale contained a statement that the property purchased "was free from all claims." Afterwards Duntze confessed judgment to Austin, Nichols & Co., execution was issued on this judgment and the sheriff levied on the property that had been sold by Duntze to plaintiff. Plaintiff, to secure his property from the levy, paid the sheriff, under protest, the sum of $479 2-100. He now brings this action to recover that sum. It was shown on the trial that after payment by plaintiff to the sheriff he went to Wagner and obtained the sum of $475, and gave a document in which he acknowledged the receipt of said sum, and stated that such sum was "in full for all claims and demands of every description" against the said Wagner. It does not appear that plaintiff had any other claim against said Wagner than the claim growing out of the sale to him by Duntze and Wagner and the seizure of the property by the sheriff. In fact, the only inference that can be drawn from the testimony is that he had no other claim. But plaintiff sought to show on the trial that he borrowed the $475 from Wagner. The trial judge charged that plaintiff could not be defeated by the fact that he received the sum above mentioned from Wagner, that such payment must not be considered as a defense and did not inure to the benefit of the defendants and was not received as satisfaction. To this charge the defendants excepted. The defendants had set up in their answer this payment by Wagner, and had alleged that plaintiff was not the real party in interest. The case presents this state of facts: Plaintiff makes a claim for the same cause of action against two parties, one of these parties pays said claim and he then brings an action against the other party. Can he maintain such action? We are of the opinion that he cannot at present maintain such an action in this court. The payment by Wagner, that is, if made as stated in the docnments above referred to, acted as an equitable assignment against plaintiff of any cause of action that he might have against the sheriff for wrongfully seizing his, the plaintiff's, property, and it was error for the trial judge to charge as above stated. If, however, said $475 was lent by Wagner to plainitff it would not act as an assignment or satisfaction of plaintiff's claim against defendants, and in that event the question of loan or equitable assignment should have been left to the jury. The charge was, in effect, a direction to find for plaintiff on that point, and it was not necessary for defendants, they having excepted, to ask to go to the jury on that point. Vail v. Reynolds, 118 N. Y., 301; 28 N. Y. State Rep., 707, and cases there cited. We have not considered the question of fraud in the sale to plaintiff, because that question was decided against defendants and there are no exceptions in the case that bring the questions before us. The judgment and order appealed from are reversed and a new trial is ordered, with costs of the former trial and of this appeal to the party who finally prevails in the action. FREEDMAN, J., concurs. JOHN L. REDMOND, Resp't, v. THE MAYOR, ETC., Of New York, App'lt. (New York Superior Court, General Term, Filed November 3, 1890.) MUNICIPAL CORPORATIONS-ASSESSMENTS-WHEN PAYMENT NOT VOLUNTARY. Where the invalidity of an assessment does not appear on its face, and an owner of property pays the same, without knowledge of such invalidity, because compelled to do so in order to obtain a loan on the property, such payment is not a voluntary one, and may be recovered back. APPEAL from a judgment against the defendants entered after trial at special term. The complaint demands judgment that an assessment for paving Thirty-sixth street, between Seventh and Eighth avenues, confirmed the 2d day of November, 1871, be declared void, and that the plaintiffs recover the money which had previously been paid in satisfaction theroof, to wit., $1,221.35. The payment was made December 15, 1888; a demand for repayment was made two days afterward, and suit was begun January 23, 1890. It appears from the evidence that the plaintiffs were the owners of property on the northeast corner of Eighth avenue and Thirty-sixth street. An assessment for the paving of Thirtysixth street, between Seventh and Eighth avenues, was imposed upon this property in 1853, and paid in 1854. In 1869 an ordinance was passed for paving Thirty-sixth street, between Seventh and Eighth avenues, with Belgian or trap-block pavement. The street was paved, pursuant to that ordinance, and an assessment for a portion of the expense thereof imposed upon the plaintiffs' land. This assessment was confirmed in 1871. The plaintiffs, however, did not pay until December, 1888, and almost immediately afterwards brought this suit to recover the amount. George L. Sterling, for app'lt; Jumes A. Deering, for resp't. INGRAHAM, J.-It is, I think, clear that the ordinance of the common council providing for the work and assessment in question, and the assessment imposed under the provisions thereof, was void, under the rule adopted by the court of appeals in Re Burmeister, 76 N. Y., 177, and that such invalidity did not appear upon the face of of the assessment list. The defendant could not, therefore, have enforced the assessment. It is also clear that if the plaintiff had been compelled to pay the assessment, and did pay it without knowledge of its illegality, plaintiff would be entitled to recover back the amount so paid in this action. Jex v. The Mayor, etc., 103 N. Y., 536; 3 N. Y. State Rep., 657; Tripler v. The Mayor, 53 Hun, 36; 24 N. Y. State Rep., 244. It is claimed on behalf of the defendant that the payment was voluntary, and for that reason could not be recovered back. I am, however, unable to find in this case any facts that would make the payment of the assessment a voluntary one. The person who paid the assessment expressly testified that she had no knowledge that the assessment was void, and that its payment was necessary because of the refusal of a trust company to make a loan upon the property until the assessment was paid. There is nothing to charge either the plaintiffs or their predecessors in title with knowledge of the facts that rendered the assessment void. The payment was not, therefore, a voluntary one, and the plaintiff was entitled to recover. Tripler v. The Mayor, etc., 53 Hun, 36; 24 N. Y. State Rep., 244. The judgment should be affirmed, with costs. THE MAYOR, ETC., OF NEW YORK, App'lt, v. MICHAEL FINN et al., Resp'ts. (New York Superior Court, General Term, Filed November 3, 1890.) 1. MUNICIPAL CORPORATIONS-CONTRACT-BREACH. A contract with the city provided that the contractor was to commence the work on such a day and at such point as the commissioner of public works should designate. In an action by the city for a breach of such contract, Held, that before the contractor could be said to have failed and neglected to enter on the performance of the work, the commissioner must have designated a day on which he should commence. 2. SAME-SERVICE OF NOTICE. While it may be presumed that a letter properly addressed, with the postage paid, and deposited in the post-office, is delivered at the address named on the envelope, where it does not appear to what place the letter is addressed, such a presumption cannot arise. 3. SAME. Proof that there was a letter copied in the department letter book. addressed to the contractor, and that about the same time the department messenger delivered to the contractor a sealed envelope, of the contents of which he had no knowledge, without proof that the city had no other contract with such contractor, or that no other letters were delivered to him about the same time, is insufficient to prove that the letter in the envelope was the original of that in the letter book. APPEAL by plaintiff from judgment entered upon a dismissal of complaint. Action upon a bond given for faithful performance of a con tract. John J. Townsend, for app'lt; L. L. Kellogg, for resp'ts. INGRAHAM, J.-Plaintiff alleges in the complaint that Finn, the contractor, failed and neglected to enter upon the performance of the work mentioned in the contract between himself and the plaintiff and unnecessarily delayed the prosecution of said work in violation of the said contract; that the Commissioner of Public Works notified Finn in writing that in his opinion the said work was unnecessarily delayed in violation of the provisions of the contract, and that unless the said work was resumed on or before the 5th day of June, 1883, the work would be declared abandoned and would be relet. That Finn wholly neglected and failed to comply with the requirements of the said notice. To sustain this cause of action the plaintiff must prove that Finn wholly failed and neglected to enter upon the performance of the contract. By the contract Finn was to commence the work on such day and at such point or points as the Commissioner of Public Works should designate. Before Finn could be said to have failed and neglected to enter upon the performance of the contract, the Commissioner of Public Works must have designated a day upon which he was to commence work. Finn. Plaintiff attempted to prove the service of such a notice upon The court below held that the evidence was not sufficient to prove the service of the notice. In that ruling we concur. The evidence relied on by plaintiff was the production of a book which purported to contain press copies of letters sent from the department, and in which appears a copy of a letter to Finn, dated August 2, 1882. Jeremiah, superintendent of street improvements, testified that he signed the letter and it was approved by the commissioner; that after the letter was signed it was copied in a letter book, addressed, and put in the mail by either the clerk or the messenger of the bureau. The messenger testified that he mailed all letters of that character and notices to the contractors to begin work at that time; that he had no recollection of having mailed that letter; that he copied the letters in the press book, put the letters in envelopes, sealed them, got stamps and mailed them. This appears to be all the evidence as to the service of the notice. There is no evidence of the place to which the letter was addressed, nor of the residence of Finn at the time. While it may be presumed that a letter properly addressed with the postage paid and deposited in the postoffice is delivered at the address named on the envelope, where it does not appear to what place the letter is addressed, such a presumption cannot arise, and even if we can presume from the course of business proved that the letter was mailed and the postage paid, there is no presumption that the messenger of the defendant knew the correct address of Finn and that the letter was addressed to him at any particular place. The evidence therefore failed to justify a presumption that the letter reached Finn. We also think that the service of the notice of May 23, 1883, was not proved. The messenger of the department says that about that date he delivered to Finn an envelope directed to him, about the contents of which he knew nothing, and which he received from the deputy commissioner of public works, who is now dead. No one is produced who can testify as to the contents of that envelope. There also appeared in the copy letter book a letter addressed to Finn and to his sureties, dated May 23, 1883. No one was produced who could testify as to having seen the original letter, nor what was done with it after it was copied. All that was proved was that there was a letter copied in the book dated May 23, 1883, and which was addressed to Finn, and that at about that time a messenger from the department delivered a sealed envelope to Finn of the contents of which he knew nothing, with no evidence that the plaintiff had no other contract with Finn and that no other letters were delivered to him about the same time. This is clearly insufficient to prove that the letter in the envel ope was the original of the copy in the book, and the court was justified in refusing to admit the letters in evidence. The counsel for the plaintiff on the trial conceded that with the notice of May, 1883, out of the case the complaint must be dismissed, and as we are of the opiniont hat both notices were properly excluded the dismissal was right and the judgment should be affirmed, with' costs. FREEDMAN, J., concurs. THE VILLAGE OF CORNING et al., Resp'ts, v. THE RECTOR, * * * A block of land in the defendant village was conveyed to the corporation to be used as sites for the erection of public buildings, viz., a county court house, churches or places for public worship, *** and for a public park and for no other purpose or use whatever. At that time there were churches and a school house on the block, which were subsequently removed, but defendant never occupied any of said lands. In 1884 the legislature passed an act placing the block in the exclusive control of a board of commissioners, which was empowered to remove any obstructions. Defendant obtained permission to build a church edifice on said block from the commissioners, but such permission was revoked within four days. In an action to restrain such erection, Held, that the deed to the corporation merely recognized the vested rights of the religious bodies which then occupied these lands, and did not authorize the erection of churches by other bodies; that no trust was thereby created in favor of defendant; that under the act of 1884 it was not lawful for any person to enter this park for the purpose of erecting any building for public worship, and that the consent obtained was a nullity. APPEAL from a judgment entered in Steuben county, February 3, 1890, upon the decision of the special term, enjoining the defendants from entering and building a church upon block No. 66 of the lands of the village of Corning, N. Y., known as a pub lic park. The defendant, "the rector, wardens and vestrymen of Christ church, Corning," is a religious corporation, organized under the laws of this state providing for the incorporation of Protestant Episcopal churches, whose members are composed mainly of inhabitants of the village of Corning. On the 6th day of May, 1889, the church edifice of this corporation having been previously destroyed by fire, application was duly made to the trustees of the village of Corning for leave to select a site on the northeast corner of block 66 for the location of a new church building, and such application was granted by an unanimous vote of the board. Immediately thereafter the |