part of the expense upon the owners of the houses and lots, made them, or their property, bear this obligation of the railway company. And that the assessors could not legally do, even if the company itself could not be made to pay for its proportion of the benefit. For the inability to enforce payment for a benefit created against one person or his, or its property, will supply no legal ground for obliging another to make compensation for that benefit.

But there was no such inability here. For the proceedings provided for assessing the expense of the benefit to the property of the railway company were as well adapted to make that assess. ment as they were to assess the houses and lots for the benefits received by them. They equally applied to every species of property benefited by the pavement, whether that of individual owners or of a railway company. And in case of failure to pay, the railway could be as readily sold as could be a house and lot. The same manner for imposing and collecting, or realizing the assess ment, exists in one case as does in the other. And the assessors erred in failing to carry it into effect against the street railway company. Complete authority has been provided for the cor rection of this error by chapter 269, Laws of 1880. The proceedings are not stayed by the certiorari, and the fact that they may have since the service of the writ passed beyond the authority of the assessors forms no answer to the right of the relators to a review of them.

The assessment, so far as it has charged them with the propor tionate part of the benefit of the pavement which was received by the railway company improving its structure in the avenue, should be reversed, and the proceedings remitted to the assessors to assess the expenses upon the company and its property so far as it has been benefited, and the residue only upon the houses and lots of the relators.

BRADY, J., concurs; VAN BRUNT, P. J., dissents.

THE PEOPLE ez rel. D. WILLIS JAMES et al. v. EDWARD GILON et al., Assessors.

(Supreme Court, General Term, First Department, Filed October 24, 1890.) 1. MUNICIPAL CORPORATIONS-ASSESSMENTS-LAWS 1882, CHAP. 410, § 878.

Section 878 of the consolidation act has been changed by more recent legislation, also made a part of the act, so as to enlarge the range of property to be assessed for expenses from owners and occupants of houses and lots to all property benefited by the improvement.

The paving of a street between and about its tracks is a substantial benefit to a street railroad, for which it is assessable, and for the expenses of such benefit the owners and occupants of the adjoining houses and lots are not legally or justly liable.

3. SAME-CERTIORARI.

The fact that the assessments have been transmitted to the board of correction and revision forms no obstacle to a review of the action of the assessors under chap. 269, Laws 1880.

(VAN BRUNT, P. J., dissents.)

WRIT of certiorari to review the assessments made upon the property of the relators for paving Tenth avenue, between Seventyfourth and One Hundred and Tenth streets.

Truman H. Baldwin, for relators; G. L. Sterling, for resp'ts.

DANIELS, J.-The expenses of paving the avenue were to no extent whatever assessed against the Ninth Avenue Railroad Company, which owned and operated a street railroad through that part of Tenth avenue brought in question by this proceeding, but it was wholly assessed among the owners and occupants of houses and lots considered to be benefited by the pavement. As to these facts, and the reasons for omitting the property of the company in the avenue, the assessors have returned that:

There were and are in said avenue, between Seventy-fourth and One Hundred and Tenth streets, a double line of tracks used and operated by a horse railroad company, claimed to be the Ninth Avenue Railroad Company, and the avenue has been paved between and about the said railroad tracks, and the amount thereof included in the above gross amount of paving done on said avenue, and assessed upon said houses and lots, as aforesaid.

The board of assessors have not assessed the said railroad company nor the road-bed and structure of the said railroad, because, in their opinion, said road-bed and structure have not been benefited, and are not under the laws of this state assessable for a local improvement of this character.

And they thereby literally followed the resolution of the common council by which the pavement was ordered. In form it followed § 185 of chap. 86 of the Laws of 1813, which has since been included in chap. 410 of the Laws of 1882, as § 878.

But this section since its enactment has been changed by more recent legislation, directing that the expenses of local improvements, including the pavement of streets and avenues of the city, shall be assessed upon the property benefited by the improvement. Chap. 410, Laws 1882, §§ 868, 899. That enlarged the range of the property to be assessed for expenses, from the owners and occupants of the houses and lots mentioned in this section of the act of 1813 to all property benefited by the improvement. Laws 1882, chap. 410, §3 899, 868, subd. 2.

And it was upon all that property that the assessors were directed, by this change in the law, to assess the expenses of this pavement. That was the paramount and mandatory authority it had in this manner been made their duty to follow. And in its performance they were left with no discretion. Justice and equality required this distribution of the expenses, and these changes from the language of the old law were intended to secure that end. They were well expressed to promote that result, and no other intention can be fairly inferred from what had been made the law previous to the time of these assessments. The old law

was made a part of the act to consolidate into one act the laws affecting the city of New York only as it had been necessarily changed by the later legislation, also made a part of that act, making all the property benefited by the improvement assessable for

its expenses. And in that inanner it should be carried into effect. For a preceding law remains in force, after later legislation on the same subject, only as it may have been modified, or necessarily changed by that legislation.

This railroad was so far improved by the pavement as that had included the spaces between its rails and its tracks. That was a substantial benefit to the property of the railway company, as it had been permanently located in the avenue. And for the expenses of conferring that benefit the owners and occupants of the houses and lots were not legally, or justly, liable to pay. As well might the property in one block, or on one side of the avenue, be charged with the whole expense of the pavement. The principle that will permit one, will support the other. But it cannot be sanctioned, as long as the constitution does not allow one person's property to be taken to pay the debt or extinguish the obligation of another. The law has been wisely framed to avoid that injustice, and to make all property benefited by the improvement bear its proportionate part of the expenses incurred. And the assess ment on the relators and their property should have conformed to its principle and intent, by excluding from it the expense of so much of the improvement as benefited the property of the railway company in the avenue.

The fact that the assessments had been transmitted to the board of correction and revision forms no legal obstacle in the way of reviewing the action of the assessors. For by 8 2 of chap. 269, of the Laws of 1880, it has been declared that, "a writ of certiorari allowed under this act shall not stay the proceedings of the assessors, or other officers to whom it is directed or to whom the assessment-roll may be delivered to be acted upon according to law."

For the reasons given and others contained in the opinion in the case of People ex rel. Davidson v. Gilon, the proceedings should be reversed, with directions to the assessors to charge against the owners and occupants of the houses and lots no part of the expenses of so much of the pavement as benefited the property of the railway company permanently located in and made a part of the avenue. And to assess against the houses and lots and their owners or occupants thereof no more than their proportionate part of the expenses of the pavement for the benefit received by them and their property from the pavement.

BRADY, J., concurs; VAN BRUNT, P. J., dissents.

DAVID R. PAIGE et al., v. THE MAYOR, ETC., OF THE CITY OF NEW YORK. HEMAN CLARK and JOHN O'BRIEN, Appl'ts, v. ABRAHAM S. JACKSON, Resp't.

(Supreme Court, General Term, First Department, Filed October 24, 1890.) ASSIGNMENT-OF MONEYS DUE UNDER CONTRACT-PROOF OF.

To prove a transfer by a contractor of moneys to become due under a contract a written instrument or the delivery of the contract or some evidence of the claim must be shown; the mere testimony of the contractor that he male an assignment of the moneys is not sufficient.

APPEAL from judgment recovered at the special term.
E. T. Lovatt, for app'lts; Flamen B. Candler, for resp't.

DANIELS, J.-The controversy in this action affected the dispotion to be made of the contract price of the construction of shaft 15 on section 7 of the New Croton aqueduct. The work was let to John A. Lee, and the city had no other interest in the litigation than to pay the money to the parties entitled to receive it. The plaintiffs took the necessary proceedings to obtain a lien on the fund for labor and materials performed and supplied by them under a contract with Mr. Lee. They were adjudged to have maintained their right to receive so much of the fund as was necessary to satisfy their demand. And the correctness of that determination has not been brought in question by this appeal.

But the balance of the fund afterwards remaining was held to be payable to the defendant Abraham S. Jackson, who was an attaching creditor of the contractor John A. Lee, and whose attachment had been served upon this demand. His proceedings in that action appear to have been regularly prosecuted for the seizure of the indebtedness by the attachment. But the appellants Heman Clark and John O'Brien asserted a paramount title to the fund, by reason of an alleged assignment of it to them before the service of the attachment. The answer of neither of these contesting defendants was served upon the other in compliance with $521 of the Code of Civil Pro.; nor was any objection made to the regularity of the action for want of that service. But the attaching creditors were permitted to prevail because of the deficient and unsatisfactory nature of the evidence given to prove the assignment. No written assignment was proved or produced, nor was any act shown from which a delivery of the contract or claim could be held to have been made. But all the evidence given to prove the assignment was obtained from Mr. Lee himself, who was a witness on the trial. And all that he stated on that subject was: "I made an assignment of all moneys due and to become due to O'Brien & Clark in March, 1887; fore part of March, · 1887."

And that was wholly insufficient to prove that he had made a transfer of the money, or that he had done anything which could be held to have vested these defendants with any title to the money. A written instrument, or the delivery of the contract, or some evidence of the claim, was essential to that end. But neither this witness, nor these defendants produced, or even testified that such an assignment had at any time been made, or that any act had taken place to which the law could attribute the fact of an assignment. Their demand, resting upon this loose and unsatisfactory testimony, was rightly rejected by the court. And the judgment should be affirmed.

VAN BRUNT, P. J., and BRADY, J., concur.

THE RIVERSIDE BANK, App'lt, v. JOHN TOTTEN, Impl'd, Resp't. (Supreme Court, General Term, First Department, Filed October 24, 1890.) BILLS AND NOTES-RIGHTS OF ENDORSER-APPLICATION OF COLLATERAL.

Plaintiff having refused to discount a note without another endorser, the defendant endorsed the same for the accommodation of the maker, and

the note was then discounted for the payee. In an action upon said note judgment was entered by default against the maker and payee, and subsequently the latter deposited the amount thereof as security, without restriction or reservation of power to withdraw or otherwise apply the same. By supplemental answer this defendant claimed the benefit of such deposit by the application thereof as payment on the note. Held, that by his endorsement defendant became no more than a surety of both maker and payee, and was entitled to such application of the deposit.

(Koehler v. Farmers', etc., Bank, 51 Hun, 418; 21 N. Y. State Rep., 361, distinguished.)

APPEAL from a judgment recovered on referee's report.
Emanuel J. Myers, for app'lt; Robert W. Gilbert, for resp't.

DANIELS, J.-The action was commenced against the maker and two endorsers of a promissory note. The maker and payee made no defense, and judgment was taken against them by default. The note was dated on the 1st day of December, 1887, for the sum of $3,000, to the order of Stephen H. Mapes, and became due in three months. It was not paid at the time of its maturity, and was then protested for non-payment. This note was made to renew a preceding note, for the same amount, made and endorsed by the same persons. That note was first presented to the plaintiff for discount by the payee, but the bank declined to receive it without another endorser. That was reported by the payee to the maker, aud the latter thereupon obtained the endorsement upon it of the defendant. It was then returned to the payee, and he procured it to be discounted, and the proceeds credited to himself, and he then delivered his check for the same, with $2,000 more, to the maker, who received the money upon it.

The maker and payce had other dealings together in the course of which the latter raised this money for the former, but what was the precise condition of their accounts did not appear. It was, however, proved that the payee undertook to obtain the money as he did for the maker of the notes.

The defendant received no consideration whatever for either of his endorsements, nor was he under any obligation to make them. But he made them solely at the request of the maker of the notes. And he thereby became, and incurred the obligations only of, an accommodation endorser. Vose v. Florida R. R. Co., 50 N. Y., 369, 374; Dunn v. Parsons, 40 Hun, 77, 79. And as the notes were each payable to the order of the defendant Mapes, and were endorsed by him, he, as well as the maker, incurred liability for their payment antecedently to that of the defendant Totten, the second endorser. Bacon v. Burnham, 37 N. Y., 614; Herrick v. Carman, 12 Johns., 159; Phelps v. Vischer, 50 N. Y., 69; Coulter v. Richmond, 59 id., 478. And to place him in that relation to the paper, it was unimportant whether he or Mapes first endorsed his name upon it. That of the defendant Totten was necessarily from the form of the paper the second endorsement, rendering him liable upon it after the defendant Mapes. And information of this fact, and of the second endorsement being that of an accommodation endorser, was acquired by the cashier of the bank from the form given to the transaction of the business. For the note was first presented to him by the payee and first endorser for dis