left the obstruction was concluded by the judgment in the action against the city as to its liability to the plaintiff therein for damages, and also as to any matter which might have been urged as a defense against such liability, 10 Gray, 497, 500; and that evidence that said plaintiff was guilty of contributory negligence could not be given. Also held, That the ordinances of the city were admissible in evidence upon the question of negligence. 14 Abb. Pr., N. S., 29; 64 N. Y., 531. Judgment of General Term, affirming judgment for plaintiff, affirmed. Opinion by Rapallo, J. All con cur. CONTRACT. PAYMENT. RE COUPMENT. dealers in coal and produce at Norwich, N. Y., and the defendants, who were also copartners, kept a hotel at the same place. On the 17th of May, 1870, the parties entered into a parol agreement, by which the plaintiffs were to furnish to the defendants all the coal they should want for their use for and during the year preceding the opening of navigation in 1871, at $5.50 per ton, to be delivered from time to time, as the defendants should want it. Nothing was said as to the time or mode of payment, under that agreement. The defendants delivered coal to the plaintiffs, from time to time, to the amount of 76 and 690-2,000 tons, until January, 1871. In February, 1871, they refused to deliver any more. Several payments were made by the defendants at different times, on account of the coal so delivered; and this action account claimed to be due to the plainwas brought to recover a balance of tiffs. The defendants, in their answer, set up as a counterclaim, that when the plaintiffs refused to deliver any more coal they, the defendants, required for their use about 21 1572,000 tons more of coal, for use during the remainder of the agreed term, and which the plaintiffs were, by the contract, to deliver to them; that they were compelled to purchase the same elsewhere, at an enhanced price, amounting in the aggregate to $62.69 more than they were by the contract to pay to the plaintiffs. They also claimed to be allowed for Appeal by the plaintiffs from a the payments they had made on acjudgment entered upon the report of count of the coal delivered, and allega referee dismissing the complainted that there was a balance due to with costs. N. Y. SUPREME COURT. GENERAL Samuel R. Per Lee et al., applts., v. Andrew J. Beebe et al., respts. Decided January, 1878. Under a contract for the sale of coal during a specified time at a specified price, to be delivered from time to time as wanted, where no time of payment is expressly agreed upon, the vendor is entitled to payment on delivery. The vendor, by answering the vendee's calls for coal, fulfils the contract to the extent of the quantity delivered, and is entitled to re cover for its value. In an action to recover for the coal delivered under such contract, the defendant may recoup such damages as he has sustained by reason of plaintiff's refusal to deliver coal during the balance of the period the con tract was to run. The plaintiffs were copartners and them. The action was referred to, and tried before a referee, who found that the plaintiffs had failed to perform the contract; that a full performance by them was a condition precedent to payment, or right of recovery; and that the failure by the plaintiffs to fully perform the contract on request, was a defence to the action. He therefore ordered the complaint to be dismissed; and judgment was entered accordingly. Geo. W. Ray, for applts. Held, Error. That no time of payment being expressly agreed upon, the ordinary legal inference must apply, that the plaintiffs were entitled to payment on delivery. Held also, That the contract was fulfilled by the plaintiffs when they answered the defendant's calls for coal, to the extent of the several parcels delivered to, and accepted by the defendants. And that for the value of the coal so delivered, estimated according to the contract, the plaintiffs had a complete right of action. personal property he does not own, and has paid the tax levied thereon, such facts do not make a case authorizing the County Court to require the Board of Supervisors to refund the tax so paid. The errors in an assessment which the Board of Supervisors are authorized by Chap. 855, Laws of 1869, to correct, are 66 manifest errors, needing no extrinsic evidence to make them clear, "clerical" errors as distinguished from errors of substance, judgment, or law, or errors of form. This was an appeal from an order of General Term, affirming an order of the County Court denying an application under Chapter 855, Laws of 1869, as amended by Chapter 695, Laws of 1871, for an order requiring the Board of Supervisors of Ulster County to refund a tax alleged to have been illegally assessed and collected. Said statutes authorize the County Court, upon application of the party aggrieved, to make such an order where a tax has been illegally or improperly assessed or levied; and $ 5 of the Act of 1869, which has not been changed by the Act of 1871, authorizes the Board of Supervisors on the recommendation of the County Court " to correct any manifest, clerical or other error in any assessments Held also, That the defendants had a right to recoup such damages as they had sustained by reason of the plaintiff's refusal to deliver coal dur-or returns made by any town officer ing the period the contract was to run. Judgment reversed, and new trial ordered; costs to abide the event, and reference discharged. Opinion by Bockes, J.; Learned, P. J., and Osborn, J., concur. TAXATION. ASSESSMENT. N. Y. COURT OF APPEALS. In re application of Hermance et al., applts., v. The Board of Supervisors of Ulster County, respt. Decided December 13, 1877. to such Board of Supervisors or which shall properly come before such Board for their action." The petition stated that the petitioners had been improperly and illegally assessed for $10,000 personal property they did not own, and had been compelled to pay a tax thereon. R. Schoonmaker, for applts. J. M. Van Wagonen, for respt. Held, That the petitioners failed to make a case within the statute, or show any manifest, clerical or other Where a person has been illegally assessed for error in the assessment or return; that their complaint is of an illegal assessment which should have been determined by the assessor of the town where they resided. action is final; if they have no jurisdiction, their acts are void. 53 N. Y., 49. The Legislature will not be presumed, except upon the clearest and plainest expression, to have intended an infraction of the principle of pub lic policy, that after taxpayers have been heard or had an opportunity to be heard, and have not sought redress in the appropriate form for any sup posed errors, their mouths should be closed, and the judgment and action of the assessors treated as final, on the maxim "interest reipublicæ ut sit finis litium.” Also held, First. That it was not intended by these acts to subject all assessments to review upon every question that could arise affecting their legality and propriety. Second. That the errors which may be corrected are "manifest" errors, not such as may be shown to have been committed by extrinsic evidence or may be proved to the satisfaction of the Court; that "manifest," as used in said acts, means something apparent by an examination of the assessment roll or return, needing no evidence to make it more clear; or, at the most, only requiring a mathe-order of County Court denying apmatical calculation to demonstrate it. plication, affirmed. Third. That the errors are such as People v. Supervisors of Ulster, 65 N. Y., 300, distinguished. Order of General Term, affirming Opinion by Allen, J. All concur, except Earl, J., not voting, and Rapallo, J., absent. ASSIGNMENT FOR BENEFIT N. Y. COURT OF APPEALS. are in the assessment or returns made If assessors in levying taxes have jurisdiction of the person and property of the individual assessed, their A failure to give the statutory security within the time limited does not invalidate an assignment for the benefit of creditors, and restore the title of the assigned property to the assignor. An assignee who has accepted the trust, cannot afterwards, by renunciation or disclaimer, throw off the responsibilities of the office or divest himself of the title once vested in him. He cannot act, however, until the statutory security has been filed. Where there are several assignees all must join to convey the title to the property; hence where one, after having accepted, renounces and fails to join in the bond, a deed executed by all will not convey the claimer throw off or repudiate the title. This was an action to set aside an agreement to purchase land, and to recover back a part of the purchasemoney paid. It appeared that D. and M. made an assignment for the benefit of creditors to W., N. & T. The three assignees accepted in writing the trust. W. & N. filed a bond, in which T. did not join, and he refused to act as assignee. A subsequent assignment was made by D. & M. to W. & N. A deed was tendered to plaintiffs, executed by the three assignees and the assignors and their wives, which was refused. D. C. Brown, for applts. E. F. Brown, for respts. Held, That the deed tendered did not convey a perfect title, as the law prohibited T. from conveying until he had filed a bond; that by the assignment and the acceptance of the three assignees, the property vested in them for the benefit of the creditors of the assignors; that the latter acquired an interest in the assigned property, and could enforce the execution of the trust; that Chapter 348, Laws of 1860, regu duties and responsibilities of the office, or divest themselves of the title once vested in them; that the second assignment was ineffectual for any purpose, Hill on Trustees, 219, and note 1, 221, and note b.; 4 J. Ch., 136; 11 Paige, 314; 20 N. Y., 15; 21 Id., 574; also, that the deed by the other two assignees was insufficient to convey the title. A trustee having once accepted a trust in any manner, a purchaser cannot safely dispense with his concurrence in a sale of the trust estate, notwithstanding he may have attempted to disclaim, and although he may have released his estate to his co-trustees. 4 Ves., 97; Story's Eq. Jur., § 1280; 1 Wend., 470; 4 Abb. Ct. Ap. Dec., 387; 46 N. Y., 571. Order of General Term, reversing judgment for defendants and granting new trial, affirmed and judgment absolute for plaintiffs on stipulation. Opinion by Allen, J. All concur. VENDOR AND PURCHASER. SIMULTANEOUS PERFORM ANCE. lating voluntary assignments for the N. Y. SUPREME COURT. benefit of creditors, does not make the giving of the statutory security by the assignees a condition precedent to the vesting of the estate in the trustees, nor does a failure to give the security within the time limited invalidate the transfer and restore the title of the assigned property to the assignor, 1 Abb. N. Cas., 39; 59 N. Y., 649; 57 Id., 641; that the three assignees, having accepted the trust, could not collectively or severally afterwards by renunciation or dis Vol. 5-No. 25. GENERAL TERM. THIRD DEPT. Anna M. Hoag, respt., v. Richard Parr, applt. Decided January, 1878. Where, by an agreement for the sale and pur chase of land, the deed is to be delivered and the purchase money to be paid at one and the same time, the obligations of the parties are concurrent and dependent. A simultaneous performance by each is required; hence neither is bound to perform, save on performance, or tender of performance by the other. The vendor, in order to establish his right of recovery for the purchase-money, is bound to prove performance, or a tender of performance on his part. The fact that a part of the purchase-money agreed to be paid was evidenced by the promissory note of the purchaser, payable to the vendor on the same day the deed was to be delivered, does not vary the case from what it would have been had no note been given. R. W. Peckham, for applt. Held, Error; that the obligations of the parties were concurrent and dependent. A simultaneous performneither is bound to perform, save on ance by each is required; hence, performance, or tender of performance by the other. Also held, That the fact that a part of the purchase-money agreed to be paid, was evidenced by the promissory note of the purchaser, payable to the vendor on the same day the deed was to be delivered, does not vary the case from what it would have been had no note been given. Judgment reversed, and new trial ordered, costs to abide the event. Opinion by Bockes, J. Appeal by the defendant from a judgment in favor of the plaintiff, entered upon a verdict, and from an The vendor, in order to establish order denying a motion for a new his right of recovery for the purchasetrial made upon the judge's minutes. money, is bound to prove performThe action was upon a promissory ance or a tender of performance on note for $500, made by the defend- his part; and it is error to cast upon ant, dated November 15th, and pay- defendant the onus of proof to estabable December 15th, 1875. The com-lish the plaintiff's default. plaint was in the usual form. The answer was (1), a general denial, and (2), an affirmative defence, showing that on the day the note was dated the parties entered into an agreement, by which the plaintiff was to convey certain lands to the defendant by a good and sufficient warranty deed free from all incumbrances, for $3,800; and the note for $500 was given as part of the purchase price, and in consideration of the performance by the plaintiff of all the covenants of such contract. And it was alleged ARREST. CHARGING IN EXthat the defendant had duly performed all the conditions, &c., therein, on his part; but that the plaintiff had failed and neglected to execute and deliver a deed, or to tender a deed of the premises, or to perform any of the conditions of the contract. On the trial, the plaintiff proved the execution of the note; but no actual tender of a deed from her to the defendant was proved to have been made. The defendant moved for a nonsnit, which was refused, and the defendant excepted. The jury found a verdict for the plaintiff. ECUTION. N. Y. COURT OF APPEALS. Decided December 4, 1877. |