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said shares out of the dividends declared on them. chapter 409 of the Laws of 1882 provides:

Section 312 of

"But in the assessment of said shares, each stockholder shall be allowed all the deductions and exceptions allowed by law in assessing the value of other taxable personal property owned by individual citizens of this state, and the assessment and taxation shall not be at a greater rate than is made or assessed upon other moneyed capital in the hands of individual citizens of this state."

The clause quoted from section 313 does not provide that the persons whose names appear on the bank list shall be deemed to be the owners of the shares set opposite their respective names, but that the names of the holders of such shares appearing upon such list shall be deemed the names of the owners of such shares as are set opposite them respectively. Under this provision, if John Doe owns 10 shares, and the bank should by mistake return the name of Robert Roe as the owner of the shares, and the assessment should be made in his name, that name-Robert Roe-would be deemed the name of the true owner, John Doe, for the purpose of assessment and taxation, and the assessment of the shares would be valid. An error in the name does not invalidate the assessment of the shares as against the true owner, whoever he may be. By section 314, above quoted, it is provided that the tax on the shares shall be and remain a lien thereon from the day when the property is by law assessed until the payment of said tax; and, if the shares are transferred after such day, they shall be subject to such lien. In this city the assessment is deemed to be levied on the second Monday of January in each year, and changes in ownership subsequent to that date have no effect upon the validity of assessments. Sisters of St. Francis v. Mayor, etc., of New York, 51 Hun, 355, 3 N. Y. Supp. 433, affirmed 112 N. Y. 677, 20 N. E. 417; In re Babcock, 115 N. Y. 450, 454, 22 N. E. 263; People v. Commissioners of Taxes & Assessments, 91 N. Y. 593, 602; Austen v. Telephone Co., 73 Hun, 96, 25 N. Y. Supp. 916. Under the provision of the section last referred to, an assessment of shares in the name of the person appearing on the bank list as the owner is in effect an assessment upon the shares against whoever owned them on the second Monday of January of the year in which the assessment is laid, and any subsequent transferee takes the shares subject to the lien of the assessment. The purpose of the statutory provisions under consideration was to prevent the owners of shares in banking corporations from escaping taxation by making transfers after the lists of the banks have been returned to the taxing officers. By this construction of the statutory provisions exact justice is promoted as between the taxing power and the owners of shares, whoever they may be.

The second question involved in this appeal is whether the person who is the legal owner of the shares on the second Monday in January, the date when the assessment is deemed to have been laid,— though not the apparent owner by the bank list, has the legal right to have the assessment stricken off in case his indebtedness exceeds the value of his personalty. By section 9, art. 2, tit. 2, c. 13, of the first part of the Revised Statutes, as amended by chapter

202 of the Laws of 1892, the just debts owing by persons and corporations assessed are to be deducted from the assessed valuation of personal property; and, if the debts exceed the value of the personalty, no assessment can be levied on account of the personalty.

It is urged that the relator was not aggrieved within the meaning of chapter 269 of the Laws of 1880. The act provides:

"Section 1. A writ of certiorari may be allowed by the supreme court on the petition, duly verified, of any person or corporation assessed and claiming to be aggrieved, to review an assessment of real or personal property for the purpose of taxation made in any town, ward, village or city of this state, when the petition shall set forth that the assessment is illegal, specifying the grounds of the alleged illegality, or is erroneous by reason of over valuation, or is unequal in that the assessment has been made at a higher proportionate valuation than other real or personal property on the same roll by the same officers, and that the petitioner is or will be injured by such alleged illegal, erroneous or unequal assessment."

It is urged that, because the assessment is not against the relator by name, he is not within the class of persons entitled to the remedies provided by the act. This construction, we think, is too narrow and technical. The act was passed to provide a remedy for illegal, erroneous, and unequal assessments in whatever form or manner they are levied. The assessment under review is just as effectual for the purpose of taking the property of the relator as though levied against him by name. By section 818 of the consolidation act (chapter 410, Laws 1882), an assessment against real estate is not void because the name of the true owner is not entered on the assessment roll. If the construction contended for prevails, and a piece of real estate should be assessed at many times its value, but the name of some person not its owner entered on the roll as the owner, the true owner would be remediless, and compelled to pay an unequal tax. The statute must be construed so as to suppress the mischief aimed at by its authors, and it cannot be that a person is to be deprived of the right to review an assessment on his property because, without his fault, the name of a person not its owner is entered against it. The order quashing the writ should be reversed, and the assessment vacated; but, as it does not appear that the assessing officers "acted with gross negligence, in bad faith or with malice," without costs. All concur.

MITCHELL v. KEANE.

(Supreme Court, General Term, First Department. May 17, 1895.)

NEGLIGENCE - EVIDENCE.

Plaintiff in an action for personal injuries went to defendant's building to deliver telegrams to persons residing therein. He entered the elevator, and showed the telegrams to the elevator man, who looked at them, handed them back, and then started the elevator up. The elevator stopped at the third floor, and plaintiff approached the doorway, standing with his foot out, waiting for the door to be opened. The elevator man then started the elevator again without notice to plaintiff, and his foot was caught on the top of the door of the elevator shaft. Held, that a verdict in favor of plaintiff was sustained by the evidence.

Appeal from circuit court, New York county.

Action by Joseph Mitchell against Sara J. Keane for personal injuries. From a judgment entered on a verdict in favor of plain. tiff, and from an order denying a motion for a new trial, defendant appeals. Affirmed.

JJ.

Argued before VAN BRUNT, P. J., and O'BRIEN and PARKER,

De Lagnel Berier, for appellant.

G. A. Moses, for respondent.

VAN BRUNT, P. J. The evidence upon the part of the plaintiff shows that he was a messenger boy working for the American District Telegraph Company; that the premises in question were known as the "Windemere Flats," or the "Windemere Hotel," situated on the southwest corner of Fifty-Seventh street and Ninth avenue; that the plaintiff, on the 6th of June, had two telegrams to deliver to persons who were resident in said flats. There was an elevator in the building, and upon entering the building the plaintiff went to, and stepped into, the elevator. The man in charge of the elevator was there. The boy handed him the telegrams, and he took them, and then handed them back. When he had handed the telegrams back, he pulled the rope, and let the elevator go up, and it stopped at the third floor. The boy approached the doorway of the elevator, and stood with his left foot out, waiting for the door to be opened. The elevator man then pulled the rope again, giving no notice to the boy. The elevator went up, and the boy's foot was caught between the floor of the elevator and the top of the door of the elevator shaft, and injured. Upon these facts the jury found a verdict in favor of the plaintiff, and from the judg ment thereupon entered, and from the order denying motion for new trial, this appeal is taken.

It is claimed, the complaint should have been dismissed because no negligence had been proven against the defendant. It is urged that the stoppage of the elevator by the elevator man without say ing anything, or having said a word to intimate that it was the floor at which the plaintiff was to alight, and without opening the door of the elevator shaft, should not and could not have been considered by the plaintiff as an intimation that he had arrived at the floor at which he was to get out of the elevator. We think, however, this is error. There were no other persons in the elevator. The elevator man knew the persons whom the plaintiff desired to see for the purpose of delivering the despatches, and when he stopped the elevator the plaintiff had a right to assume that he had arrived at the floor upon which he was to alight. It was not negligence upon his part to place himself in a position to leave the ele vator as soon as the door of the shaft should be opened. After such stoppage it was the duty, before starting the car again, of the elevator man, to see that there was no danger in starting the car, or to give the plaintiff some notice that he had not arrived at his destination. This he utterly failed to do. He started the car,

the car itself having no door to protect the parties who were riding in it, and the plaintiff's foot was caught and crushed. We think the jury had a right, from these facts, to infer negligence upon the part of the person in charge of the elevator, and a want of negligence upon the part of the plaintiff. The judgment and order appealed from should be affirmed, with costs. All concur.

EIDLITZ v. ROTHSCHILD et al.

(Supreme Court, General Term, First Department. May 17, 1895.) PLEADING-REPLY-NEW MATTER.

The complaint in an action to foreclose a mechanic's lien alleged performance by plaintiff of the contract. The answer set up a counterclaim for damages, based on the nonperformance and defective performance of part of the work. Held, that a reply alleging that, during the progress of the work, defendant directed certain changes to be made; that some of such changes were rendered necessary by errors in the specifications,stated new matter inconsistent with the complaint (Code Civ. Proc. § 514), and was therefore improperly allowed.

Appeal from special term, New York county.

Action by Charles L. Eidlitz against Jacob Rothschild and others to foreclose a mechanic's lien. From an order denying a motion to strike out a portion of the reply, defendants appeal. Reversed. Argued before VAN BRUNT, P. J., and O'BRIEN and PARKER,

JJ.

Charles B. Reid, for appellants.

Ernest F. Eidlitz, for respondent.

O'BRIEN, J. This action was brought to foreclose a mechanic's lien. The plaintiff, who was an electrical contractor, entered into a written contract with the appellant Rothschild on or about October 25, 1893, whereby he agreed to furnish the electrical light plant for the Hotel Majestic for a certain price. The complaint alleges performance of this contract, with the exception of certain work which plaintiff was prevented from doing, owing to his wrongful ejection from the premises by the defendant. The written contract is annexed to the complaint, marked "Exhibit A," and made a part thereof. The defendant, by his answer, puts in issue almost all the material allegations of the complaint, admitting only the making of the contract, and also annexes the written contract, marked "Exhibit A," and specifications, marked "Exhibit B." The answer fur

ther sets forth a counterclaim, in which defendant alleges:

"That an agreement was made between the plaintiff and this defendant, dated on or about the 25th day of October, 1893. That said agreement was duly executed by the parties thereto on or about its date, and was the only agreement between said parties relative to the work to be done on or about the premises referred to in said agreement."

The damages in the counterclaim are based upon the nonperformance and defective performance of certain work by the plaintiff. To

this counterclaim plaintiff made a reply, alleging that the contract contained a provision that, should the owner request any alterations, he should be at liberty to do so; that during the progress of the work defendant desired certain changes in the specifications and drawings, and in many instances such changes were rendered necessary by reason of errors in the said drawings and specifications; that on or about the 21st of February, 1894, defendant directed plaintiff to make such changes as he should find necessary for the improvement and perfection of the work; and that by the direction and with the consent of the defendant, and in accordance with the contract, a number of alterations, which are set forth, were made; that the contract set forth in the amended answer was the only contract made by the plaintiff with the defendant; but "that, as to the specifications and drawings, they were changed as provided in said contract and as above stated." So much of the reply as is thus indicated defendant moved to strike out, upon the grounds (1) that such portion is irrelevant and redundant; (2) that it is new matter inconsistent with the complaint; and (3) that it is new matter not constituting a defense to the counterclaim.

By Code Civ. Proc. § 514, a reply may only set forth new matter not inconsistent with the complaint, constituting a defense to the counterclaim. Here the counterclaim is for damages for failure of the plaintiff to carry out his contract. The new matter contained in the reply sets up that, under a provision of the contract permitting it, the specifications were modified by an arrangement between the parties, by which alterations consisting of additions and omis sions were made in the work, for the failure to supply which omissions the defendant in his counterclaim seeks to recover damages. It may well be that, had the defendant Rothschild brought an action for damages against the plaintiff for failure to perform his contract, the new matter contained in the reply would be a good defense. But where, as here, the plaintiff sues upon a definite contract, which is in writing, and is made a part of the complaint, and then alleges performance of this contract, with certain exceptions which are not material in this discussion, without any allegation as to alteration or modification in the specifications of the work to be done thereunder, and the defendant answers, and by way of counterclaim seeks to recover damages for a failure so to perform the contract, new matter in a reply which seeks to change the contract sued upon, and to plead an entirely different contract, is clearly inconsistent with the complaint and the theory upon which the plaintiff's cause of action is based. We have been referred to no authority permitting it, nor in any system of pleading having regard to logic would it be permitted to amend a complaint by means of a reply. Here the complaint alleges performance of one contract, and the defendant counterclaims, alleging a failure to perform certain provisions thereof; and it is inconsistent for the plaintiff then to come in by way of reply, and set up another and different contract. As said, a reply cannot be resorted to for the purpose of amending a complaint, nor is it within its province thereby to introduce a new cause of action. This, if desirable, is to be secured by an amendment of the complaint.

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