nature of a right to a judg- ment; and, therefore, no ques- tion arises as to whether a party can appeal from an order affecting it. Wireman v. Rem- ington Sewing Machine Co.
the Converse of which, if' charged, would not have called for or justified any different determination of the case than that arrived at, and ought not in law to any way affect the determination, it is unnecessary, on appeal, to consider whether 11. Where the rules and principles the proposition is correct or not. The proposition being immaterial, its error (if it be erroneous) presents no cause for reversal. Whitney v. Mayor, &c. of New York, 106.
4. In the construction of instruc- tions to the jury, the whole charge must be considered and applied to the facts of the case. Maher v. Central Park, North & East River R. R. Co., 155.
of law involved are important, and affect large and varied pub- lic interests; and where, in the opinion of the conrt, the rules and principles of law that should control, have not been fully settled by the court of last re- sort in this state, leave to ap- peal to the court of appeals should be granted, on proper conditions. Atlantic & Pacific Telegraph Co. v. Barnes, 357.
in a case tried before a referee, a party who deems certain facts as mentioned in his case, must procure the referee to either find or refuse to find them. Kemple v. Darrow, 447.
5. The findings of a referee upon 12. For the purposes of an appeal, conflicting evidence should not! be disturbed, and especially so, when the contradictions are irreconcilable, and one side or the other must be disregarded. American Corrugated Iron Co. v. Eisner, 200.
6. His findings of fact, like the verdict of a jury, will not be disturbed by an appellate court, unless unsupported by, or very clearly against, the weight of evidence. Ib.
7. An order allowing a material allegation to be inserted in the answer is not appealable.
13. If the facts as claimed to ex- ist are not found, the general term can not assume them to exist; and if there is no refusal to find them, the court can not look into the testimony to see whether there is any evidence to support them, or whether the referee ought to have found them. I b.
MONELL, Ch. J.] Schreyer v. 14. A general finding can not be
Mayor, &c. of New York, 277.
8. The general term on appeal should have all the papers upon which the order appealed from
affected by any evidence of a particular fact, which the referee has neither found nor refused to find. Ib.
was based, placed before it. 15. A defendant agreed to furnish Eldridge v. Strenz, 295.
9. In this case the remittitur from the Court of Appeals to this court, which was before the special term, does not appear among the papers. Ib. 10. The plaintiff's right to an order that the defendant pay to him an amount admitted to be due by the answer is a substan- tial right when the answer "admits part of the plaintiff's claim to be just," being in the
a plaintiff with certain materials, in such numbers and amounts as might be required. The referee found generally that defendant had failed to perform. Held, that whatever evidence there was which it was claimed established that, by the agreement between the parties, the material was all to be delivered within a certain time, and that plaintiff would not permit a delivery wit in that time, but had improperly delayed
question, the allowance of which is not error, an answer which is responsive, but merely states his opinion on the subject-matter inquired of, and no objection is taken to his answer, there is no error calling for a reversal. Pol- lock v. Brennan, 477.
and obstructed defendant, so that he could not make delivery within the time, and had re- fused to allow delivery to be made when he was ready to do so, neither the claimed fact that the time of performance was lim- ited by the contract, nor the! evidence which it was claimed 21. Sustaining an objection urged supported it, could be consid- ered, the referee having neither found nor refused to find speci- fically on such claimed particu- lar fact. Ib. 16. Costs of appeal will not be allowed to either party, when the judgment below was for too much, and plaintiff on discov-22. Error can not be assigned un- ering the error offered soon after the appeal to make the proper reduction. Ib.
17. The grounds upon which a motion for a new trial, made on the judge's minutes, is based, must appear in the record on
in the middle of a question, is not error where the reason for the exclusion does not appear, and the counsel does not claim the right to complete. A sub- stantial reason, growing out of the usual incidents of a trial, must be presumed to exist. Ib.
der a general objection to the re- ception of evidence as too remote, the subject-matter of which is pertinent to the inquiry. special objection must be made, based on the ground of remote- ness. Ib.
appeal from an order denying 23. Exclusion of unimportant tes-
the motion. Alfaro v. Davidson, 463.
18. When there is an appeal from
timony is not cause for reversal, although the inquiry is pertin- ent. lb.
the judgment as well as from 24. An exception to the denial of
the order denying a motion for a new trial, and both appeals are brought on for argument at the same time, this rule is re- laxed; because the court is in a 25. position to do full and complete justice between the parties, ac- cording to the exigencies of the case, and without regard to mere matters of form. Ib. 19. When, however, the appeal from the order denying the mo- tion for a new trial is brought on for argument while the ap- pellant is keeping himself in such position, so that in case of
a motion for a new trial on the minutes is unavailing upon an appeal from the judgment. Mc- Micken v. Lawrence, 540.
Where no motion is made either for a dismissal of the complaint, or the direction of a verdict, and the case is submit- ted to the jury under a charge to which no exception is taken, the review on appeal must be confined to a consideration of the questions arising on the appellant's exceptions to the admission or the exclusion of the evidence. Ib.
non-success he may prosecute a 26. The rejection of evidence
further appeal from a judgment already entered, or to be entered, the rule will be strictly enforced, and the order below affirmed for the reason that the grounds on which the motion was based do not appear on the record. Ib.
20. Where a witness gives to a
offered to disprove a fact sought to be proved by plaintiff to maintain his case, is not cause for reversal, when the fact itself is unimportant by reason of the plaintiff's case being otherwise sufficiently maintained upon the undisputed evidence. Parsons v. Sutton, 544.
27. The rejection of evidence offered to prove damages is not cause for reversal, when it ap- pears that no right to damages exists. Ib.
28. Upon a motion for re-argument of an appeal on the ground that the court overlooked important testimony, the moving party must show that the court had not in fact considered all the 2. evidence. Weston v. Ketchum,
29. 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. This although it speaks 3. of the evidence thus referred to as being undisputed, and dis- poses of the case upon such view of the testimony. Ib.
30. In the case at bar, however,
the evidence referred to as hav- ing been overlooked does not disturb the harmony of the evi- dence upon which the former general term proceeded in its decision. Ib.
See CONTRACTS, 13; COSTS, 3.
the power, in suits commenced after the passage of the act, to declare such assessments void. and cancel them of record, and enjoin their collection until the assessment is sought to be en- forced by the taking of the assessed property. Astor v. Mayor, &c., of New York, 120.
The entry of the assessment in the office of the comptroller of the city, among the entries of assessments confirmed, is not a seeking so to enforce the assess- ment. This is not a proceeding
for its collection. Neither is an admission that "proceedings have been taken towards its collection” sufficient evidence that proceedings have been taken for collection. There can be no inference from this, either that the land has been advertised for sale, or that it has been sold, or that a lease is about to issue under Laws of 1871, ch. 381, especially where the three years which must elapse befere advertising for sale have not expired. Ib. 4. The act of 1872, above referred to has not been repealed; its provisions have been extended by act of May 2, 1874, ch. 313, p. 366. Ib.
1. An application for exoneration of bail is too late when made after the bail have become charged. Hissong v. Hart, 411. 5. Semble, the liability of parties 2. The return of the sheriff can not be questioned in an action against bail, and therefore can not be questioned on a motion to discharge the bail. Ib. See MALICIOUS PROSECUTION.
assessed can not be affected by nice jurisdictional questions aris- ing out of proceedings to im- pose the assessment. 16.
The act of 1858 (Session Lavs, 1858, ch. 338) authorized judge of the supreme court, at special term, to vacate assess- ments upon the allegation and proof of any fraud or legal irregularity" therein. An amend- ment to this act, by the act of 1874, struck out the words, "or legal irregularity," and substitu- ted the words, or substantial error," and a further amend- ment provided that "hereafter no suit or action in the na- ture of a bill in equity, or
otherwise, shall be commenced for the vacation of any assess- ment in said city, or to remove a cloud upon title; but the owners of property shall here- after be confined to their reme- dies in such cases to the pro- ceedings under the act hereby amended." In the case at bar the plaintiff seeks to restrain, by injunction, the sale of his property by the corporation, and the collection of the assessment by any other mode or process, thus invoking the equity juris- diction of the court, for relief, instead of the remedies provided in the act. Held, that such an action can not be maintained. The remedies under the act are adequate to the relief of the plaintiff, and should be pursued by him. Rae v. Mayor, &c. of New York, 192.
7. The act of 1874, is not in con- ⚫flict with the provision of the
entry, in a record of the titles of assessments, kept in the office of the street commissioner, and also until the title of said assess- ment shall have been entered with the date of confirmation, and of said entry, in a record of the titles of assessments con- firmed, kept in the office of the clerk of arrears (Laws of 1853, 1065, § 6; Laws of 1871, 741, § 1). De Peyster v. Murphy, 255. Assessments for street im- provements in the city of New York, are not only a personal liability against the owner of the lands included therein, but are also a lien, or charge upon such lands (2 Rev. Laws of 1813, 407, § 175). lb.
12. By subsequent statutes this
lien becomes fixed as an incum- brance, in the nature of a mort- gage upon said lands from the time of its entry or record in certain designated offices. Ib.
constitution (art. 6, § 12) which 13. The officers clothed with
continued the Superior Court with the powers and jurisdiction that it held and possessed at the time of the adoption of the con- stitution. That act merely af- fects the remedy to be pursued by the person injured. Ib. 8. The legislature has always, and rightfully, assumed the 14. power to change the forms of proceedings and remedies, and to limit them to certain tri- bunals, and any general law af- fecting the mode of obtaining a remedy, can not be construed into an infringement of consti- tutional jurisdiction or power.
9. The amendment of 1874, is a valid and constitutional law. Ib.
10. A city assessment for street improvements is not deemed to be fully confirmed, so as to be due, and be a lien upon the property included in it, until the title thereof, with the date of confirmation, shall have been entered, with the date of such
authority to collect these assess- ments in New York city, are not required to demand and seek to collect the assessment of the owner of such lands, al- though such owner is primarily bound and legally liable to pay the same. Ib.
Resort may be had primarily to either the land or to the owner thereof; but when the land is resorted to, and the lien or incumbrance created, in the first instance, such action neces- sarily extinguishes the personal liability of the owner of said
15. In the case at bar, the prem- ises were sold and conveyed on December 5, 1870, by plaintiff to defendant, the plaintiff cove- nanting that the premises were at the time of the conveyance free, clear, and discharged and unincumbered of all taxes, as sessments, and incumbrances. The assessment in question was duly entered, and became a lien upon the premises, December
24, 1870. After the assessment| was so entered, the plaintiff paid the same, subject to the agreement of the defendant that he wonld return the money if the plaintiff was not legally liable to pay the same, and this suit was brought to recover the money so paid. Held, by the 6. court, that plaintiff was not liable to pay this assessment. Ib.
3. An order to pay a part of a fund not in existence, will, upon the fund coming into ex- istence, operate as an equitable assignment; but if the fund never comes into existence, the order can only operate as an executory contract to assign, a breach of which may give a right to damages. But to give validity to the order either as an equitable assignment or an executory contract, a considera- tion is necessary. Risley v. Smith, 137.
3. An antecedent indebtedness due by the husband of the drawer of an order payable out of a specified fund to grow due, is not a sufficient consideration. This though the order is ac- cepted by the drawee. Ib. 3. A promise by the drawee to
pay to the drawer, if the promise is such that the prom- isee will never have the use, benefit, or enjoyment of any- thing, is not a sufficient consid- eration. It is a mere illusion. Ib.
4. Forbearance does not form a consideration, where, although a security is taken which does not become payable until the expiration of some term yet to elapse, the actual intention of the parties had no reference to relieving the principal debtor from an action by his creditor. 1 b.
5. Where the forbearance is not
promised or given at the request of the promisor, but the prom- isee, gratuitously or voluntarily, or at the request of a third person, promises or gives for- bearance, that can not sustain a contract which had no reference to forbearance. Ib.
A., as agent for a railroad company, procured B. to pro- pose to enter into a contract for the building of the company's road for a certain sum, to wit, two hundred and fifty thousand dollars. At a conversation be- tween A., B., and the president of the company, the subject of A.'s compensation came up, and it was agreed between them that he ought to have five thous- and dollars. As the sum to be paid for building the road would exhaust all the available assets of the company, the president asked B. to pay the five thousand dollars. To this B. objected, but the final result was that it was arranged that the five thousand dollars should be added to the contract price for building the road, and that B. should give A. a draft on the railroad company for five thous- and dollars payable pro rata as the money should become due to B. under his contract with the company. Thereupon the com- pany and B. entered into a contract whereby B. agreed to construct the road and to run or procure cars to run thereon, and the company covenanted that when B. should complete the road, all the franchises, rights, and property of and be- longing to the company should become the property of B. and his associates, and further cov- enanted to pay B., on such completion, two hundred and fifty-five thousand dollars in certain specified instalments. At the time of the execution of this contract B. gave to A. the order before mentioned, which was then and there accepted by
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