Streets.

commissioners of the Central Park in that city, in reference to proceedings taken by them. (Central Park case, 12 Abb., 107.)

2. In order to set aside an assessment for fraud, under the act of 1858, in reference to streets, &c., in the city of New York, it must be actual fraud, not mere omissions, errors or negligence. And the judge in such cases, is confined to the allegations in the petition. (Rich's case, 12 Abb., 118.)

3. An assessment for local improvements in the city of New York, cannot be set aside for fraud or illegal irregularity, for the reason that part of the work included in the assessment was done without any contract, though it exceeded $500. The petition in such case must allege the existence of the irregularity; an allegation that the proceedings appear to be irregular only, is insufficient. (Miller's case, 12 Abb., 121.) 4. The act of 1858 does not create any new ground for vacating assessments in the city of New York in reference to streets. Where work exceeding $500, was performed by contract, but the contract was not given to the lowest bidder, held, not a legal irregularity for which an assessment can be vacated after confirmation without objection. An assessment vacated on the petition of A. respecting his premises, does not make the question res adjudicata on the petition of B. to vacate in respect to his premises adjoining. (Horn's case, 12 Abb., 124.) 5. Where one board of the common council of New York pass an assessment ordinance in one year, and the other board in the following year, the irregularity is cured by an amendment appointing new assessors. Where the corporation accept a bid higher than the lowest, it is not a legal irregularity within the statute, nor is the fact that the contract price exceeded the bid. It is an objection to vacating an assessment that the petitioner was not the owner of the premises when the assessment was confirmed. (Bennett's case, 12 Abb., 127.)

6. The street commissioner of the city of New York, cannot be compelled by mandamus to execute a contract with a person who claims to be the lowest bidder. The provision of the charter which requires the street commissioner to award the contract to the lowest bidder, is for the benefit of the corporation, not for the purpose of creating an obligation to be

Summary Proceedings. Summons. Supplementary Proceedings.

enforced by mandamus in favor of the bidder. (People agt. Smith, 12 Abb., 133.)

See LANDLORD AND TENANT, 6.

See MUNICIPAL CORPORATIONS, 8. 9. 10.

SUMMARY PROCEEDINGS.

1. This court will not interfere by injunction or otherwise, to restrain summary proceedings for the recovery of demised premises, where it appears that the same questions were raised and tried before the justice on such proceedings, and decided by him-no fraud or abuse being shown by the plaintiff. (Seebach agt. McDonald, ante, 224.)

SUMMONS.

1. Where the notice in the summons is under sub. two, of § 129 of the Code, asking for relief and the complaint is on contract or in part on contract, calling for the recovery of a specific sum of money; such part of the complaint may be stricken out on motion. (Campbell agt. Wright, ante 9.)

2. But it seems, in such case where the defendant demurs to the complaint, he waives his remedy to strike out. (ld.) See SERVICE BY PUBLICATION, 1. 2. 3.

See AMENDMENt, 1.

SUPPLEMENTARY PROCEEDINGS.

1. Proceedings supplementary to execution cannot be had upon an execution issued by a county clerk, on a justice's judgment for less than $25, of which a transcript has been filed in the county clerk's office. (Anonymous, 32 Barb., 201; this agrees with Butts agt. Dickinson, 20 How. Pr. R., 230.) 2. A party examined under § 294 of the Code can only be required to answer concerning his alleged indebtedness to the judgment debtor, and as to the fact whether he has property belonging to him; and a general denial on oath of both propositions is all that can be required. (Tompkins County Bank agt. Trapp, ante, 17.)

Taxes. Tender. Title.

3. It seems that under § 295 such a party may be examined fully and rigidly as a witness; and it is no excuse for answering, that he sets up a claim to the property. (Id.)

4. In proceedings supplementary to execution, when the receiver has given ample security on his first appointment, there is no necessity for requiring him to give security over again in every proceeding which may be afterwards instituted. (Banks agt. Potter, ante, 469.)

See SERVICE, 2.

TAXES.

1. Under the statutes of this state relating to taxation, the personal property of a resident actually situated in another state or country, is not to be included in the assessment against him. On the other hand, the personal property of a non-resident, which is situated here, is liable to taxation with such exceptions only as the statute laws have made. (People ex rel. Hoyt agt. The Commissioners of Taxes, ante, 385; Court of Appeals.)

2. But these rules apply only to property which is capable of having an actual situs, and has one within or without the state. Property merely in transit through the state is not taxable. Debts and choses in action in general follow the domicil of the owner. Ships at sea, if registered at a port within the state, have no situs elsewhere, and are to be assessed here. (Id.)

3. The relator, residing in the city of New York, was assessed in respect to capital invested in business in New Orleans, and in respect to chattels upon his farm in New Jersey: Held, that the assessment was erroneous. (Id.)

TENDER.

See DEED, 3. 4.

TITLE.

1. There is no presumption of title in favor of the people, against the actual occupant of land, until it is shown that the possession has been vacant within forty years. The history of, and title to the property of Trinity Church, New York, discussed.

Title.

(People agt. The Rector, &c. of Trinity Church, N. Y., 22 N. Y. R., 44.)

2. To make the possession of land adverse so as to avoid a deed thereof under the statute against champerty, (1 R. S., 739, § 147,) such possession must be under the claim of some specific title. A general assertion of ownership, irrespective of any particular title is insufficient. (Crary agt. Goodman, 22 N. Y. R., 170.)

3. The plaintiff deposited money with the defendant, taking a receipt which declared that the sum was to be indorsed on a certain contract for the sale of land, by the defendant to a third party, whenever the plaintiff should present an assignment to him of such contract: Held, that the receipt transferred no interest in the land or the contract, and showed no agreement by the plaintiff to procure any such interest; and that he could therefore recover the deposit upon demand. (Phelps agt. Bostwick, 22 N. Y. R., 242.)

4. In an action of trespass upon lands, if the parties fail to show a paper title, or a title by continued possession of twenty years under claim of title adverse in its character, they must have recourse to the rights acquired by possession alone. Under such circumstances the first or oldest possession prevails. (Kellogg agt. Vollentine, ante, 226.)

5. Where, on a failure of proof of title, a portion of the evidence showed that the plaintiff claimed to recover for trespasses upon lands in possession of the defendant, for which he was not entitled to recover, and a portion tended to show trespasses by the defendant upon lands in the occupation of the plaintiff, of which the defendant nor his grantor never had any possession, and for which the plaintiff was entitled to recover,

Held, that the judgment for the plaintiff would not be disturbed, presuming that the recovery was wholly based upon the possession of the plaintiff, were it not that the referee had erroneously found that the plaintiff acquired title to the whole premises, which appeared to have a material, if not a controling, effect upon the judgment. Judgment reversed and new trial ordered. (Id.)

6. A defect of title, where the purchaser remains in possession, cannot be set up as a defence to a foreclosure of the mort

Trustees. Undertaking. Usury.

gage now, any more than before the Code. (Burke agt. Nichols,

1. Where the judgment appealed from, directs the execution of a conveyance, the appellant must comply with the terms required on an appeal to the court of appeals, in order to stay proceedings. The undertaking must be filed under § 334 as well as the deed under § 337. (Waring agt. Ayres, 12 Abb., 112.) 2. Where three sureties in an undertaking justified in the aggregate sum of $80,000,-$40,000 being double the value of the property as stated in the plaintiff's affidavit on a claim of delivery,

Held, that the sheriff was bound under § 212 to deliver the property to the defendant, notwithstanding the fact that the amount specified in an affidavit of the same sureties annexed to the undertaking when first delivered to the sheriff, was in the aggregate of only $60,000. That affidavit was not required by any provision of law, but was only a precautionary measure by the sheriff to judge of the sufficiency of the sureties. for his own protection, and wholly unnecessary to the validity of the undertaking. (Grant agt. Booth, ante, 354.)

3. Where the undertaking, filed on granting an order of arrest, is not indorsed with the approval of the justice who granted the order, pursuant to rule 4, the order, on motion, will be vacated with costs. (Newell agt. Doran, ante, 427.)

See INJUNCTION, 4. 5.

See BAIL, 1.

USURY.

1. A party seeking to avail himself of a defence like usury, involving a forfeiture, is bound to allege and prove the facts necessary to establish it; and no presumption will be indulged in his favor. (Cutler agt. Wright, 22 N. Y. R., 472.)

2. It seems that the mere fact, that on a contract for the sale of land, a higher than the legal rate of interest is reserved upon