at the hearing that testimony is necessary to the proper disposition of the matter, such testimony may be taken, and shall constitute a part of the proceedings upon which the court is to determine.

Argued before LEARNED, P. J., and FISH and PUTNAM, JJ.
Edwin Young, for appellants. Hobart Krum, for respondents.

LEARNED, P. J. In each of these two cases a writ of certiorari under chapter 269, Laws 1880, had been issued to review assessments of relator's property. The defendants moved on notice to modify the order and the writ, so as not to require any return as to the inequality of the assessment in question as compared with other assessments, and so as to prevent the relator from raising on the return, or in the proceedings, any other question than that of the legal exemption from taxation under chapter 297, Laws 1886. The order and writ were so modified, and the relator appeals. The affidavits of the relator which had been presented to the assessors were used on the motion. The affidavits of the assessors and the clerk were produced, stating that no question was raised before them except that of exemption, and that no claim of unequal assessment was made. In opposition an affidavit of a clerk in the office of relator's attorney was produced, stating that he did also protest against the assessment as illegal by reason of overvaluation. It would seem that the learned justice who modified the order must have held that the weight of the evidence was that no objection was taken other than that of absolute exemption. It may be admitted that that is the prominent matter in the affidavits used before the assessors.

The petition for the writ of certiorari states the alleged illegality as based on the exemption claimed, and also on the unequal valuation. The act of 1880, above mentioned, undoubtedly gave an entirely new relief. It did not provide for a mere review of the action of the assessors, but for an examination of the whole matter, and for what was practically a new assessment by the supreme court in case the relator showed that he was aggrieved. There was to be a rehearing on new evidence; and the return of the assessors was not to be conclusive on the matter. The act was undoubtedly passed because the legislature saw that the action of assessors was often arbitrary; and that, under existing laws, there was no redress against the most unjust assessments. It was a remedial statute, and while it may impose some labor on the court, it has already operated to redress injustice, and probably, in some degree, to prevent unequal assessments. In the enforcement of the rights given by this act, it may, perhaps, be a sound principle that the court shall refuse relief where the relator has not made his claim at the proper time to the assessors themselves. It may be reasonable that the court should require that the aggrieved party should first seek his redress from the assessors, so that they may have the opportunity to correct any error which they have made, and that the court may not be unnecessarily burdened. People v. Commissioners, 99 N. Y. 254, 1 N. E. Rep. 773; People v. Osterhoudt, 24 Wkly. Dig. 101. That, however, is not a condition laid down in the statute, which specifies the cases in which the writ shall be granted. And we do not think it necessary to decide that question on this appeal. The defendants have in the present instance limited the effect of the writ by proof made by affidavits; and these affidavits are in conflict with the affidavit of the relator. It seems to us that this matter should not be determined in this summary manner. The question, what shall be the extent of the relief given by the court? is one affecting the merits. It should properly be determined on the return to the writ, and on the evidence taken in the proceeding. If this were only the ordinary writ of certiorari, the court would not determine what relief it should grant until it had heard the return. It would not limit the matters to be returned, as has been done in this instance. Still more when, under this writ, the court does not merely review the proceedings upon the proof before the

assessors, but takes new and independent proof, it would seem best that all the proof should be produced which the parties can show to be proper. Indeed, the circumstance that new proof is to be taken by the court would seem to lessen the force of the rule above mentioned, that objections must be made, in the first instance, before the assessors. For if this court is to investigate for itself in any case the matter of unequal assessment, it does not seem that much can be gained by having the party ask the assessors not to assess him unjustly. If some peculiar privilege or right were to be asserted, there would be more reason for calling the attention of the assessors to it. But the duty of making an equal assessment is well known to the assessors; and the party is not limited, in this writ, to the evidence which he produced before them. As he is not limited to that evidence, the argument of the defendants seems to be simply that he must object to the assessors that his assessment is too high in proportion to others. And such objection would seem to be of no special use. But, without passing on the question which may come up when these writs shall be heard on the evidence taken in this court, we are of the opinion that the writs themselves should not be limited as has been done by the orders appealed from.

Order modifying writs reversed, with $10 costs, and printing disbursements, and motion to modify denied, with $10 costs in each case. All concur.

FITZGERALD . CITY OF TROY.

(Supreme Court, General Term, Third Department. September 21, 1889.) 1. DEFECTIVE HIGHWAYS-NEGLIGENCE-PROVINCE OF JURY.

In an action for the death of plaintiff's intestate, caused by being thrown from bis sleigh by reason of a hole in the snow which covered a street of defendant to the depth of from one to two feet, it appeared that the street was one on which there was a great amount of traffic; that at the time of the accident it was so crowded that intestate was forced to keep to the side on which the hole was; and that, aside from such hole, the street was in good condition. Plaintiff's evidence showed that the hole had been in the same condition for from five to seven days before the accident, and that it was from four to six feet long, from one and one-half to two feet deep, and thirty inches wide, and ran lengthwise of the street. Defendant's witnesses estimated it as smaller. Held, that the question whether defendant was negligent in not discovering and filling the hole before the accident was for the jury.

2. SAME-CONTRIBUTORY Negligence.

Where intestate managed his team with skill and prudence, and omitted no duty incumbent upon him, and his view of the hole was obstructed by teams immediately before him, the question of his contributory negligence is for the jury, and their verdict for plaintiff will not be disturbed on appeal.

Appeal from circuit court, Rensselaer county.

Argued before LEARNED, P. J., and LANDON and INGALLS, JJ.
R. A. Parmenter, for appellant. F. S. Black, for respondent.

INGALLS, J. This action was brought by the plaintiff to recover damages for an injury to Thomas Fitzgerald, the intestate, which caused his death, and which is claimed by the plaintiff to have resulted from the negligence of the defendant in allowing a hole to form and continue in a public street of said city, upon which the intestate was, at the time of the injury, engaged in transporting merchandise loaded upon a sleigh, drawn by two horses, which he was driving. The sleigh consisted of two bobs, and the hind right-hand bob went into such hole, in consequence of which the sleigh with the load was canted to the right, and Thomas Fitzgerald was thrown to the ground, and a cask of bluing was thrown from the sleigh upon him, which caused the injury complained of. The street where the casualty occurred was a public business street of the city, and upon which there was a great amount of teaming, in the transportation of merchandise and other commodities. Two railroads, one from the south, and the other from the north, were so located

that their tracks converged so that they approached each other at the locality in question so nearly that such tracks were not more than 75 feet apart where they crossed said street. It seems that at the time the accident occurred the street was crowded with teams proceeding in different directions, some double, and others single, teams; that the crowd was so great upon the lefthand side of the street that the intestate was compelled to keep to the right, where the hole in question was located, about midway between the tracks of the two railroads. The evidence indicates that several teams were proceeding ahead of the team driven by the intestate, and occupied such a position as to obstruct the view of the street from where he was sitting upon his load, and prevented him from seeing the hole. The streets of the city were covered with snow to the depth of from one to two feet, but so evenly distributed that the sleighing was generally good. The evidence shows that, aside from the hole in question, the street where the casualty occurred was in good condition. The plaintiff produced at the trial evidence to the effect that the hole had been in substantially the same condition for from five to seven days previous to the accident. Two witnesses testified that they had driven into it previous to the time the intestate was injured. In describing such hole, the witnesses for the plaintiff gave its dimensions as from four to six feet in length, north and south, and in depth from a foot and a half to two feet, and thirty inches in width. Patrick Burns, a witness produced by the defendant, in describing the hole, stated that it was one foot and a half deep, two feet and a half wide, and about three feet long. That witness was a flagman at a station located very near where the intestate received the injury, and testified further that he had seen sleighs slide into the hole. The witnesses on the part of the defendant, who were its employes, in speaking of the size of the hole, estimated it at a size less than that stated by the other witnesses. The jury had all of the estimates before them, and it became their province to determine that question, in view of all the evidence.

Considering the location of the street in question, and the fact that it was to such an extent used for the transportation of merchandise, and for other public uses, and regarding the location of the hole in such street, and its size and shape, as shown by the evidence, and that it was the only one discovered in that vicinity, and the length of time it had remained there previous to the accident in question, we think the trial court was justified in submitting to the jury, for their determination, in view of all the facts and circumstances disclosed, whether the defendant was chargeable with negligence in not discovering and filling the hole before the injury in question occurred. We are convinced that the evidence presented a fair question of fact in regard to such negligence of the defendant, and that the finding of the jury in that respect should not be disturbed by this court. The evidence does not indicate that the hole complained of was an ordinary depression in a snow track, caused by an unequal distribution of snow, and forming what is sometimes denominated a "dip hole," descending gradually and crosswise of the track, so that both runners of the sleigh would encounter the depression at the same time, and evenly, and therefore less likely to occasion an injury such as is complained of in this case. In this case it appears that the hole extended lengthwise of the street, and its size and location were such as to render it difficult to be avoided, especially when the street was crowded with teams going in different directions. The hole was in the track, and the intestate was prevented, it seems, from driving further to the right, in consequence of an embankment of snow and ice. If a hole of that description, and thus located, in the pavement of that street, had remained undiscovered, and not repaired, for such a length of time, freedom from a charge of negligence would hardly be regarded so clear as to justify taking the case from the jury. Regarding all of the circumstances, including the size, location, and shape of the hole in question, we think the fact that it was in a snow track, instead of the pave

ment, can hardly change the rule in that respect. The accident did not occur upon a street in a remote part of the city, where there was little travel, and nothing to particularly attract the notice or attention of the employes of the city, but in a thoroughfare, in a central part of the city, particularly devoted to transportation of merchandise and railroad purposes. It seems but reasonable to expect that those who are charged with the care of the streets of a city will particularly turn their attention to those localities most used, and where danger from defects in the street may be reasonably apprehended. It was insisted, upon the argument, that the plaintiff should not be allowed to recover damages, for the reason that the intestate was guilty of contributory negligence. We think this also became, in view of the facts, a fair question of fact for the jury to determine. It seems that the intestate managed his team with skill and prudence, and omitted no duty which was incumbent upon him, under the circumstances in which he was placed, so far as we discover. As has already been stated, his opportunity for particular observation was obstructed by the loaded teams which were immediately before him. The person who was injured being dead, the question of contributory negligence must be determined by the surrounding circumstances of the case, unaided by the explanation which the deceased, if living, could have given. While it is true that the plaintiff was bound to make a case from which the jury could reasonably draw the inference that the intestate was free from any negligence which contributed to the injury, yet the jury, having become convinced that no such negligence on the part of the injured person had intervened, and the trial court having approved of such conclusion, we do not think that this court is called upon to indulge in extreme inferences, from the evidence, adversely to the plaintiff's case, upon that question, in order to reverse the judgment herein. Upon the question whether the load was properly adjusted, the evidence, we think, presented a fair question of fact for the jury to determine; and their conclusion, in view of the circumstances, should be accepted. We think it cannot be said that the plaintiff's case, upon the question of the defendant's negligence, and also the freedom of the deceased from any negligence which contributed to the injury, is without competent evidence to sustain it, and sufficient to justify its submission to the jury, and their determination should be regarded final. Hart v. Bridge Co., 80 N. Y. 622.

We have examined the various exceptions to the rulings of the court during the progress of the trial, and discover no error which could have prejudiced the defendant's case, or which calls for a reversal of the judgment. In some instances, general objections were interposed, without specifying any grounds therefor, and are therefore unavailing to the defendant upon appeal, In regard to the charge to the jury, and the refusal of the judge to chargé certain propositions as requested, we discover no fatal error committed by the court. In determining the value and force of an exception taken to a portion of a charge, the part assailed must be construed in connection with the entire charge, as it not infrequently happens that one portion of a charge explains and qualifies another part thereof, and renders the whole harmonious, which might not be the result if considered in detached parts. This case, in some of its features, is peculiar, and we think it became at the trial a proper case for the jury, and we fail to discover any substantial ground for interfering with their verdict. The judgment should therefore be affirmed, with costs. All concur.

COHEN et al. v. IRION.

(Supreme Court, General Term, Fourth Department. September, 1889.) 1. ASSIGNMENT FOR BENEFIT OF CREDITORS-PREFERENCE OF FICTITIOUS CLAIMS. Where a firm was known to be insolvent by the partners, and one of them retired from it, selling his interest to the remaining partner for his notes for $2,500, which notes were afterwards preferred in an assignment by the remaining partner, the assignment is fraudulent.

2. SAME-PROOF OF FRAUDULENT Intent.

In an action to set aside an assignment, facts showing that assignor bought goods of plaintiffs with intent not to pay for them are admissible to prove the intent with which the assignment was made, even though judgments have been recovered for the price of the goods. MARTIN, J., dissenting.

8. SAME-FINDING OF REFeree-Review.

A finding of a referee, from conflicting evidence, that an assignment is fraudulent, will not be disturbed on appeal.

Appeal from judgment on report of referee.

Action by Samuel H. Cohen and another against Elias Irion, assignee of George Beltz. Judgment was rendered for plaintiffs, and defendant appeals. Argued before HARDIN, P. J., and MARTIN and MERWIN, JJ. 8. M. Lindsley, for appellant. William Townsend, for respondents.

HARDIN, P. J. Upon the evidence, the referee was warranted in finding that the firm of Beltz & Reusswig was insolvent at the time it was dissolved, March 1, 1880, and that the firm of Beltz & Reuss wig owed from $4,000 to $5,000 more than its assets. Upon the dissolution of that firm, Beltz took the assets and "the whole business, and agreed to pay the firm debts." When Henry Beltz purchased an interest of his father in the property, he held a note given by the old firm of Beltz & Reusswig for $1,350, which he surrendered to his father as part of the purchase price for an undivided half interest in the firm assets. The verbal arrangement was made between the father and son for the partnership to exist between them, and after they entered into business a large number of the debts of the old firm of Beltz & Reuss wig were paid. It is quite evident that when the son sold to the father, the 10th of June, 1884, his interest in the firm existing up to that time, the firm was in a state of insolvency, and that fact was known to the father and the son. Inasmuch as there was no value in the interest which the son held in the copartnership at that time, there was no good consideration for the notes, amounting to $2,500, which the father executed to the son. The evidence warrants the finding that the father and the son knew of the embarrassed and insolvent condition of the parties at that time. The father continued in business until the 21st of February, 1885, when he made a general assignment; preferring, among other debts, the two notes which he had given to his son, amounting to $2,500. He thus made an attempt to prefer a fictitious debt. The evidence supports the finding of the referee "that on June 10, 1884, the interest of Henry G. Beltz in Beltz & Son was of no pecuniary value, and that the notes given to him by his father for $1,250, and interest, each, and preferred in the assignment of February 21, 1885, were without consideration; and that George Beltz was insolvent at the time of giving said notes to his son." Bishop on Insolvent Debtors says, in section 232, p. 215, viz.: “An assignment by an insolvent debtor which undertakes to provide for the payment of debts not owing by the assignor, or for amounts in excess of sums justly due by him, is fraudulent and void, for the manifest reason that the provision for such fictitious debts must have the effect either to defraud the bona fide creditors of the assignor, or to delay and embarrass them in the collection of their debts;" and he cites numerous authorities upholding the proposition. See, also, Mead v. Phillips, 1 Sandf. Ch. 83; Webb v. Daggett, 2 Barb. 9; Bank v. Webb, 36 Barb. 291.