Opinion of the Court, by SEDGWICK, J. BY THE COURT.-SEDGWICK, J.-On the argument but one reason was stated, why there should be a reversal. It was said that the plaintiff testified that he did certain pieces of work beyond the original contract, at request of the defendant's testatrix, and which the plaintiff swore were correctly stated as to the kind and value in a list put in evidence and that appears in the record here; that there was no evidence that this testimony of plaintiff was incorrect, and, therefore, the referee should have acted upon it as undisputed evidence. The answer is two-fold. First. There was enough in the case to allow and perhaps call upon the referee not to take the words of the witness, but to construe his testimony in connection with the other facts, and to justify the result that although in general the plaintiff was a credible witness, still the so-called extra work had been within the verbal original contract. Second. The learned counsel is mistaken in thinking that this evidence was not contradicted. The defendant gave evidence which, if believed, called upon the referee to disregard the contents of the list, except in certain respects. Moreover it is quite plain from the face of the list, that it contains many items which could not have been extra work. Judgment should be affirmed, with costs. SPEIR, J., concurred. Statement of the Case. CHARLES OAKLEY, PLAINTIFF AND APPELLANT, v. THE MAYOR, ALDERMEN AND COMMONALTY OF NEW YORK, DEFENDANT AND RESPONDENT. I. DUTY, WHEN NOT IMPLIED. 1. NOT FROM A MERE POWER TO DO A THING. 1. Exercise of power. That it has been exercised can not be inferred or implied from the fact that a power, not coupled with a duty, has been conferred. II. BOARD OF SUPERVISORS OF NEW YORK. 1. "Resolved that all losses which may be sustained by the default of any of the collectors of the several wards of the city be charged to the said wards, respectively, and added to the taxes of said ward this year." 1. AUTHORITY FOR THE REDUCTION. Act of 1837, chap. 80, pp. 59, 60. a. Effect of the act. If merely confers a power to refax for losses not coupled with a duty. 1. No implication can therefore arise from the passage of the resolution that any particular defalcation has been charged against or included in the tax levy of any particular ward. b. Application of the act. 1. It applies only to cases where the collector and his sureties are insolvent. 2. LEVYING AND COLLECTING TAXES UNDER SUCH RESOLUTIONEFFECT OF ON SURETIES OF A COLLECTOR. 1. It does not release or discharge them. Semble, if the tax payers are made the ultimate losers, they might insist on being reimbursed by any securities held by the corporation, and such securities might be valid in their hands, and would be valid if they could become the transferrees thereof. Before MONELL, Ch. J., CURTIS and SPEIR, JJ. Heard April, 1875; Decided May 3, 1875. Statement of the Case. O. P. Buel, attorney and of counsel for appellant. E. Delafield Smith, counsel to the corporation, and A. J. Vanderpoel, of counsel for respondent. The complaint, among other things, averred that plaintiff was one of the sureties on the bond of one Montgomery, a collector of taxes for the year 1836 in the 8th ward; that the collector defaulted in a considerable amount; that the plaintiff's liability for such defalcation was arranged by his giving his promissory notes for one-half the defalcation then discovered, and his bond and mortgage for the further sum of five thousand dollars, as collateral to any further defalcation that might be discovered; that the Board of Supervisors on October 3, 1837, passed the resolution set forth in the head-notes, and that he was ignorant of such resolution at the time he entered into such agreement as aforesaid, and prayed that an account "may be taken of the amount which has been paid to said defendant by said plaintiff from time to time by reason of his alleged liability on said bond, as well as of the rents received by or chargeable to them on said mortgaged premises, as well as of the money received by them from the sale or assignment thereof, and that he have judgment against them for the amount thereof when it shall be ascertained, and for interest on paid sums of money from the times when they shall appear to have been respectively received by said defendants, or when they became chargeable therewith, and for costs." The plaintiff relied wholly on the said resolution and the effect thereof; introducing no evidence as to the amount of Montgomery's defalcation having been added to the taxes of his ward, or having been collected or paid over to the defeudant. There was no evidence that the plaintiff and his co-surety, or either of them, were insolvent in the years 1837 and 1838. Statement of the Case. The cause was tried at special term, before a single judge, when judgment was rendered for the defendant on the merits, with costs. MONELL, Ch. J., wrote for affirmance upon the propositions stated in the head-note. CURTIS and SPEIR, JJ., concurred. JOHN HOGAN, PLAINTIFF AND APPELLANT, 2. WILLIAM E. LAIMBEER, DEFENDANT AND RESPON DENT. Before MONELL, Ch. J., CURTIS and SPEIR, JJ. The only point involved in the appeal was whether the verdict was correct on the evidence. The court held it was, and affirmed the judgment. Heard April, 1875; Decided May 3, 1875. SPEIR, J., wrote for affirmance. MONELL, Ch. J., and CURTIS, J., concurred. Statement of the Case. GEORGE W. WESTON, et al., v. FREDERICK O. KETCHUM, et al. * MOTION FOR RE-ARGUMENT OF APPEAL ON GROUND THAT THE COURT OVERLOOKED IMPORTANT TESTIMONY. 1. NECESSARY TO SHOW WHAT. 1. The moving party must show that the court had not in fact considered all the evidence. 2. WHAT DOES NOT SHOW THIS. 1. It does not follow, from the court's referring in the opinion to parts of the testimony only, that it did not consider the whole. a. This although it speaks of the evidence thus referred to as being undisputed, and disposes of the case upon such view of the testimony. 8. In the case at bar, however, the evidence referred to as having been overlooked does not disturb the harmony of the evidence upon which the former general term proceeded in its decision. Before MONELL, Ch. J., CURTIS and SPEIR, JJ. Heard April, 1875; Decided May 3, 1875. A. J. Perry, for the plaintiff. F. W. Angel, for the defendant. The testimony which it was claimed that the court overlooked was that of Mrs. Perry. The present general term were of opinion that her agreement with Weston had respect to the secret of compounding the oil, * For the decision on the appeal from the judgment, see ante, p. 54. |