Supreme Court, July, 1896. [Vol. 17. In Siewert v. Hamel, supra, a test of the illegal character of the transaction, as propounded by Andrews, C. J., is that "it originated in an agreement for a loan; " but here the fact is not clear upon the proofs. By the testimony of Hirsch, the only witness not open to suspicion of bias, it appears that the plaintiff contemplated a purchase from the beginning of the negotiation with the defendant. The defendant himself, in his original answer, alleged that he "did request the plaintiff to purchase the aforesaid mortgage and take an assignment thereof." Notwithstanding the explanatory evidence introduced to extenuate the effect of this admission, I cannot but regard it as credible and cogent proof of the intended transaction. Assuming, however, that the parties originally contemplated a loan by plaintiff and a new mortgage to him for security, the proof is quite conclusive that they abandoned the project and substituted instead a purchase and assignment of the mortgage. "No doubt the plaintiff wanted to get more for his money than simple interest. But he knew the statute of usury, and did not intend to come within it. No doubt, also, there was then sug * * gested a plan whereby he might keep outside of the statute and still obtain a return for the investment greater than the rate allowed by it. There is no law against that." Dunham v. Cudlipp, 94 N. Y. 135. "In one sense the transaction took this form for the purpose of escaping usury. But the parties had a perfect right to deal with each other with the usury laws before their eyes, and to so shape the transaction as to avoid the condemnation of those laws." Union, etc., Inst. v. Wilmot, 94 N. Y. 221, 227. The assent of defendant to the substituted arrangement is apparent from his execution of the agreement of November 2, 1894, and other evidence. Defendant's position, then, is this he does not impugn the legality of the actual transaction, but urges that the agreement between the parties was for another and illegal transaction, which though renounced and unexecuted, nevertheless invalidates its substitute, the actual and legal transaction. The bare statement of the proposition suffices for its refutation. In Wyeth v. Braniff, 84 N. Y. 627, the authority upon which defendant relies, the loan was indisputable - an essential fact, absent from the case under review. "If there was no loan, and no corrupt agreement for forbearance, there can be no usury." Sweeney v. Peaslee, 17 N. Y. Supp. 225, 227; Meaker v. Fiero, 145 N. Y. 165; Siewert v. Hamel, 91 id. 201. Misc.] Supreme Court, July, 1896. The case is not free from doubt, but, mindful of the proof requisite to show usury, I am not content that the defense is established. "The defense of usury being an affirmative proposition to be established by the defendant, he assumes the burden of establishing it by affirmative proof, as all the presumptions are in favor of the legality of the contract; and if, upon the whole case, the evidence is as consistent with the absence as the presence of usury, the party alleging the usury must fail." Sweeney v. Peaslee, 17 N. Y. Supp. 225, 227; Stillman v. Northrup, 109 N. Y. 473. Judgment for plaintiff, with costs. Ordered accordingly. MARY H. ARTHUR et al., Plaintiffs, v. HONORA HARTY, Defendant. (Supreme Court, New York Special Term, July, 1896.) 1. Municipal corporations - Assessment for street widening. A property owner to whom an award is made for property taken for street widening purposes, which has been diminished by an amount estimated to be his fair proportion of the benefit of the improvement in respect of the portion of his land not taken, is as much subjected to an assessment as any other property owner who is assessed for benefit but to whom no award has been made. 2. Landlord and tenant — Liability of tenant for assessment. A tenant of land, a portion of which has been taken for street widening purposes, whose lease requires him to pay all assessments levied or charged during his term, is liable for the amount assessed for benefit against the reversion of the property, although a total assessment was made against the property and apportioned by the commissioners as between the leasehold and reversion, and irrespective of the amount of an award to the landlord. ACTION against a tenant to recover the amount of an assessment levied upon the reversion in proceedings for street widening. Eugene Smith, for plaintiffs. John Vincent, for defendant. BEEKMAN, J. The plaintiffs sue to recover the sum of $835.70, being the amount paid by them to the city for an assessment which, as they claim, has been made against them in respect to the prem Supreme Court, July, 1896. [Vol. 17. ises 205 Greenwich street in a certain proceeding instituted on behalf of the mayor, aldermen and commonalty of the city of New York for the widening and extension of College place. The defendant is the owner of a leasehold interest in said premises under a lease made by the plaintiffs, which contains the following covenant: "That the said parties of the second part, their executors, administrators or assigns, shall and will, during the said term hereby created or any renewal thereof, well and truly pay or cause to be paid any and all taxes, assessments or water rents that may be laid, levied, charged or assessed upon or against said demised premises, or any part thereof, as and when the same shall severally become or be due and payable, or within at least three months thereafter; and that in all things they will observe and comply with all ordinances, laws, rules and regulations of the municipal authorities of the city of New York, or any of them, in relation to the use, occupancy and care of said premises and of every part and parcel thereof, and of the buildings erected or to be erected thereon, and will pay or cause to be paid all fines or penalties or other charges that may be levied, assessed or charged upon or against said premises or any part thereof, or upon or against the buildings erected or to be erected thereon, or any of them, for or by reason of any failure to comply with or infraction of such ordinances, laws, rules and regulations as and when the same shall severally become or be due and payable." The defendant resists the action on the ground that no tax or assessment was levied or imposed upon the demised premises or any part of the same in the proceedings above mentioned within the meaning and intent of this covenant, by reason of the fact that the amount awarded to the plaintiffs for the portion of the demised premises taken in such proceedings exceeded the amount charged against them for benefit in respect to the remainder of the property, and that the confirmation of the report of the commissioners of estimate and assessment resulted in a determination only that the plaintiffs were entitled to a certain sum as an award for damage, representing a net amount after deducting from the estimated value of the property taken a sum determined by them to be the pecuniary benefit of the improvement to the plaintiffs in respect to the portion of the premises not taken. In support of this contention defendant's counsel relies upon the provisions of section 970 of the New York City Consolidation Act, which requires commissioners of estimate and assessment in such proceedings to Misc.] Supreme Court, July, 1896. make “a just and equitable estimate and assessment of the loss and damage, if any, over and above the benefit and advantage, or of the benefit and advantage, if any, over and above the loss and damage, as the case may be," to the owners of the premises required for the purposes of the improvement. But this is to be read in connection with section 975, which makes it the duty of the commissioners in all cases to report fully and separately to the court the amount of loss and damage and of benefit and advantage to each and every owner, lessee, party and person entitled unto or interested in any lands, tenements, hereditaments or premises required for the purposes of any such operation or improvement. It is plain, therefore, that the commissioners are in all cases to make two separate and distinct determinations one which shall give the estimated value of the property taken, the other which shall state in dollars and cents the exact amount of benefit enjoyed by the property not taken by reason of the improvement. Although the damage may exceed the amount of benefit, the latter is none the less an assessment mulcting the owner in that amount and diminishing pro tanto the sum which he is constitutionally entitled to have by reason of the taking of his property for a public use. The process by which an offset is to be made by the commissioners is one having relation solely to the convenience of the parties, and is a method of providing for the discharge of the counterclaim, so to speak, which the corporation has by reason of the obligation resting upon the property owner of contributing towards the cost of the proceeding. If no such obligation on his part exist, if no such charge or assessment be laid upon him, then the conclusion is irresistible that he is receiving less than that to which he is constitutionally entitled, namely, just compensation for his property which has been taken. But the statute is perfectly plain. The property owner to whom an award is made for property taken, which has been diminished by an amount estimated to be his fair proportion of the benefit of the improvement in respect to the portion of his land not taken, is as much subjected to an assessment as any other property owner affected by the same improvement who is assessed for benefit but to whom no award for land taken has been made. The fact may further be noted that section 989 of the Consolidation Act requires the report of the commissioners to state these separate details: On the one hand, the estimated damage for the taking of lands, and, on the other hand, the estimated benefit or assessment imposed upon property deemed to be benefited by the improvement; and when the report is confirmed, as I have said, a property owner entitled to an award, although that award may exceed the amount of his proportionate part of the assessment for benefit, is and has been as much assessed in respect to the improvement as if no award had been made to him. Trinity Church v. Cook, 11 Abb. Pr. 371. It appears, from the proofs, that the amount of this assessment has been paid by the plaintiffs, under the long-continued practice on the part of the city in dealing separately with assessments and awards made in respect to the same persons. Under the view. which I have taken of the matter, I think it clear that the amount in question was an assessment which had been "charged or assessed upon or against " a portion of the demised premises within the meaning and intent of the parties to the lease, and that the defendant is liable therefor to the plaintiffs under the covenant above referred to. The total assessment made in respect to the demised premises was $855.70, which was apportioned by the commissioners as between the leasehold estate and the reversion by imposing $20 upon the former, and $835.70 upon the latter. It is contended, by counsel for the defendant, that this is a conclusive determination binding upon the plaintiffs, which precludes them from asserting any claim against the owner of the leasehold estate for the amount of the assessment imposed upon the reversion. I do not consider this contention sound. The cause of action arises out of the covenant contained in the lease by which the tenant in terms agrees to pay whatever tax, assessment or similar charge may be imposed upon the reversion. The commissioners found two estates in the property · a leasehold estate, which was vested in the defendant, and the reversionary estate in fee subject to the lease, which was vested in the plaintiffs. Each estate, according to its value, was subjected to an appropriate portion of the assessment for benefit affecting the entire property, and each owner was thus called upon to pay that which appropriately constituted a charge upon his own property. But there is nothing in this which in any way precludes the operation of the agreement which the lease contains, under which the tenant agrees to pay charges which otherwise would rest exclusively upon his landlord. There is nothing, therefore, in the plaintiffs' cause of action which is inconsistent with the report of the commissioners. In fact, the statute under which the proceedings in question were instituted seems to have |