and 114 New York State Reporter

If it should appear that the facts stated in the application for correction, if taken as true, are not sufficient to establish the overvaluation, no issue is presented requiring evidence to be taken, although the commissioners in their return may, for greater caution, have undertaken to answer or deny some or all of the allegations, since the denial of an immaterial allegation cannot raise an issue which must be tried. What is a sufficient allegation of overvaluation to raise a question requiring the taking of evidence has been much discussed. In People v. Barker, 14 App. Div. 412, 43 N. Y. Supp. 1015, the allegation was positively made that the property was assessed at $210,ooo more than was in accordance with the marketable value thereof. This was held to be equivalent to an allegation that the assessment was $210,000 in excess of the price at which the property would ordinarily sell, and was accordingly considered a sufficient allegation of overvaluation. In People ex rel. Bronx Gas & Electric Co. v. Feitner, 43 App. Div. 198, 59 N. Y. Supp. 327, the allegation was that the property was assessed at $89,000, instead of $14,644, which was the full value, and at more than it would sell for under ordinary circumstances, and this allegation was deemed sufficient. In People ex rel. Sutphen v. Feitner, 45 App. Div. 542, 61 N. Y. Supp. 432, the relator used the precise language used by the relator in the present case, alleging that his property had been assessed at $145,000, whereas the same should not have been, in his judgment, valued at more than $69,000 to be in accordance with the market value thereof. He then alleged that the property had not increased in market value since 1895, and had been assessed in 1895 at $57,000, being increased to $69,000 in 1896; but he did not show that the property in those years had been assessed at its true market value. These allegations were held to be insufficient to raise any issue of fact, since the relator had merely made a claim of overvaluation, and had stated no facts upon which the claim was based. From these cases the rule may be deduced that, in order to warrant the taking of evidence, the applicant must state facts from which, if taken to be true, it can be seen that the property has been overvalued. Since the petition and return in a tax certiorari are construed and treated as the pleadings in an action, the relator may either allege the overvaluation as a matter of fact, as was done in People v. Barker, supra, and in People ex rel. Bronx Gas & Electric Co. v. Feitner, supra, or may set forth a claim of overvaluation supported by the averment of particular facts to sustain the claim, as was done in People ex rel. Thomson v. Feitner, supra. In the present case the relator's application was as follows: "It finds that the same [its real estate] has been assessed on the assessment roll of 1899 at a valuation of $905,000, whereas the same should not have been, in its judgment, valued at more than $500,000, to be * * * in accordance with the fair marketable value thereof." This, as will be seen, is the precise language which was held to be insufficient in People ex rel. Sutphen v. Feitner, supra. It does not allege overvaluation as a fact, but merely states that in the opinion of relator (meaning, no doubt, the opinion of the officer who signed the application) the property is assessed beyond its marketable value. It is a mere expression of opinion, and not a statement of fact, and is not

even evidence of the fact, because it nowhere appears that the person expressing the opinion is qualified to do so. The application then went on to state certain facts, intended, no doubt, to support the claim of overvaluation, but which are insufficient to do so. It stated that the entire system had been deteriorated and damaged by the action of stray electric currents, causing electrolysis; but it did not state what had been the value of the system before it had been damaged, or how much the damage had been. Non constat but that even in its damaged and deteriorated condition the system might be worth all it had been valued at. The relator further alleged that much of its system had been in the ground for many years, and was worth but a part of its original value, and at the present cost price of similar material is much less than it was when said system was put in. But there was no statement as to how much of the system had been in the ground for many years, or what its original value was, or what part of its original value had remained, or what was the cost of the material when the system was put in, or how much less the cost of similar material is now. So that, if all the facts alleged in support of the relator's claim or opinion of overvaluation were to be taken as true, there would still be nothing upon which to base a presumption that the valuation fixed by the respondents was excessive, for, notwithstanding all the deterioration in value claimed, the property might well be worth what it is assessed at. The motion for a reference must be denied, and the writ dismissed, with costs. Motion denied, and writ dismissed, with costs.

HIRSHBACH v. KETCHUM.

(Supreme Court, Appellate Division, First Department. February 6, 1903.) 1. ATTORNEYS-DIVISION OF FEES-VALIDITY OF CONTRACT-FINAL JUDGMENTMODIFICATION.

Where the demurrer to a complaint to recover one-half of the fees paid to an attorney under an agreement to pay the same to plaintiff for procuring defendant to be employed was sustained on appeal on the ground that such contract was in violation of Code Civ. Proc. § 74, and thereafter an amended complaint was filed, not substantially changing the cause of action alleged in the original complaint, to which a demurrer was sustained, and a final judgment was entered dismissing the complaint "on the merits, according to law." such judgment could not thereafter be amended by striking out the words "on the merits," as it determined that plaintiff had no fundamental right of action.

2. SAME LACHES.

Where plaintiff did not move to have a judgment on demurrer dismissing the complaint on the merits modified by striking out the words "on the merits" until more than five years had elapsed since the entry thereof, he was barred from such relief by laches.

Appeal from special term, New York county.

Action by Simon Hirshbach against Alexander P. Ketchum. From an order granting a motion to amend a final judgment dismissing. plaintiff's complaint on the merits by striking out the words "on the merits," defendant appeals. Reversed.

and 114 New York State Reporter

Argued before VAN BRUNT, P. J., and HATCH, PATTERSON, and LAUGHLIN, JJ.

William P. Maloney, for appellant.

Samuel H. Guggenheimer, for respondent.

PATTERSON, J. This action was begun in October, 1895. A firm of merchants had claims against the United States government for duties improperly imposed on merchandise imported into the United States. The plaintiff procured the defendant to be employed as an attorney by those merchants, and the defendant brought suit on behalf of such firm, and, having succeeded in the establishment of the claims against the government, compensation was paid him for his services. The plaintiff claimed to be entitled to one-half of that compensation under a specific agreement with the defendant, and brought this suit to recover such one-half. A demurrer was interposed to the complaint. It was overruled at special term, but on appeal to this court the judgment of the special term was reversed, and the demurrer was sustained, with leave to the plaintiff to serve an amended complaint. It was held by this court that the agreement between the plaintiff and the defendant was in violation of section 74, Code Civ. Proc. The plaintiff served an amended complaint, which it is conceded was practically the same as the original complaint, with the exception of an additional allegation concerning the relations between the plaintiff and the defendant. A demurrer was interposed to this amended complaint on the ground that facts were not stated sufficient to constitute a cause of action. The court at special term sustained the demurrer on the opinion of the appellate division on the former appeal (76 N. Y. Supp. 117), and did not give leave to amend. On that decision, final judgment was entered March 8, 1897, dismissing the complaint on the merits. In that final judgment, the amended complaint is dismissed, in terms, "upon the merits," in conformity with a decision. made on February 24, 1897, in which it is stated as a conclusion of law that the defendant is entitled to final judgment sustaining the demurrer to the complaint, with costs, and dismissing the complaint "on the merits, according to law." The final judgment remained unappealed from and undisturbed for more than five years, and until December 2, 1902, when a motion was made by the plaintiff to have the decision and judgment amended by striking therefrom, wherever they appeared, the words "upon the merits." The motion was opposed. It was heard by the same justice who rendered the decision, and directed the entry of the judgment sought to be modified. He granted the motion, and from his order this appeal is taken.

It is suggested by the respondent that the decision and judgment were inadvertently made, so far as the insertion therein of the words "on the merits" is concerned, but we find nothing in the record showing that there was inadvertence. The words stricken out were properly inserted, for the final judgment was on the merits. The subject involved was the validity of the agreement which lay at the foundation of the plaintiff's cause of action. That being invalid, there was no claim, and every right which the plaintiff asserted fell with the adjudication of the invalidity of the agreement. A judgment in an action

in which questions of law are alone involved is as conclusive between the parties as a judgment in an action in which are involved issues of fact as well as of law. Henck v. Barnes, 84 Hun, 549, 32 N. Y. Supp. 840; Gould v. Railroad Co., 91 U. S. 526, 23 L. Ed. 416. A demurrer to a complaint because it does not state facts sufficient to constitute a cause of action raises an issue which involves the merits. Alley v. Nott, 111 U. S. 472, 4 Sup. Ct. 495, 28 L. Ed. 491. That was an action which originated in the state of New York, and the decision. was made under the provisions of the Code of Civil Procedure of that. state relating to demurrers. In St. John v. West, 4 How. Prac. 329, Judge Selden, considering the meaning to be attached to the word "merits" on appeals from orders, says that, if taken in its ordinary acceptation, it would seem to mean the abstract justice of the case, but that a proper legal definition would regard it as meaning the combined questions of law and fact presented by the pleadings in a case; and he remarked that the word "merits," as a legal term, has acquired no precise technical meaning, and admits of some latitude of interpretation, but it is to be regarded as referring to the strict legal rights of the parties, as contradistinguished from those mere questions of practice which every court regulates for itself, and from all matters which depend upon the discretion or favor of the court. That definition has been approved by the general term of the supreme court in Tallman v. Hinman, 10 How. Prac. 90; by the general term of the court of common pleas in Tracy v. Manufacturing Co., I E. D. Smith, 357; and by the general term of the superior court in McGrath v. Van Wyck, 3 Sandf. 751.

The final judgment entered upon the demurrer in this case-going, as it does, to the fundamental right of the plaintiff, and determining that no right cognizable at law existed-was an adjudication on the merits; and, being so, that final judgment as entered was correct. The action of the court in granting this motion makes a new judgment and a different determination from that which was made on the trial of the issue in the cause. There is no doubt of the power of the court to amend a judgment by striking out the words "on the merits" where it is clear that there was no authority or jurisdiction to enter a judgment containing those words, and where the only permissible judgment was one simply dismissing a complaint. Such was the case of Card v. Meincke, 70 Hun, 382, 24 N. Y. Supp. 375; but the courts have not gone so far as to say that a judgment rightfully rendered, and to which a party was entitled, may be set aside only upon such a statement as was urged on the application now under consideration.

In addition to what has been said, the gross laches of the plaintiff in moving is sufficient to call for a reversal of this order. He took no appeal from the final judgment, but allowed five years or more to elapse before moving, and rested quiet even after notice of the intended use of the judgment.

The order appealed from should be reversed, with $10 costs, and the motion to amend the judgment denied, with $10 costs. All concur.

80 N.Y.S.-10

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LENTSCHNER v. LENTSCHNER.

(Supreme Court, Appellate Division, First Department. February 6, 1903.) 1. JUDGMENT-TRIAL BY COURT-NECESSITY OF DECISION.

Under Code Civ. Proc. § 1228, providing that judgment on the decision of a court upon the trial of the whole issue of fact without a jury may be entered on filing the decision, a decision is essential to support a judgment dismissing a complaint after trial by the court.

Appeal from special term, New York county.

Suit by Mollie Lentschner, an infant, by Charles Schwartzberg, her guardian ad litem, against Max Lentschner. From a judgment dismissing her complaint after trial at special term, plaintiff appeals. Reversed.

Argued before VAN BRUNT, P. J., and HATCH, McLAUGHLIN, O'BRIEN, and INGRAHAM, JJ.

Alexander Rosenthal, for appellant.

MCLAUGHLIN, J. This action was brought to dissolve a marriage contract on the ground of fraud. The defendant made default in pleading, and did not appear at the trial or on the argument of the appeal. The trial court, after hearing the proof offered by the plaintiff, rendered judgment dismissing her complaint upon the merits, from which she has appealed.

The learned trial justice sitting at special term made no decision, and there is, therefore, no basis for the judgment. Where the whole issue is one of fact, and is tried by the court without a jury, a decision must be made before a judgment can be rendered. Section 1228, Code Civ. Proc. This is absolutely necessary; otherwise there are no facts to sustain the legal conclusion drawn. Deeley v. Heintz, 169 N. Y. 135, 62 N. E. 158. We are therefore unable to determine whether or not the court erred in rendering the judgment which he did, inasmuch as we are precluded from examining the case on the merits; and for that reason we think the judgment appealed from should be vacated, and the matter remitted to the special term to the end that a decision may be made. All concur.

SHUBERT et al. v. ANGELES.

(Supreme Court, Appellate Division, First Department. February 6, 1903.) 1. CONTRACT-DEFINITENESS AS TO TIME.

A contract by an actress for the season of a play to commence May 12, 1902, was not so indefinite as to be unenforceable, it appearing from a provision as to performance during Christmas week that it was not for the summer season of 1902 merely.

2. INJUNCTION PENDENTE LITE-TERMS.

Injunction restraining breach of the contract pendente lite, or until further order of court, is too broad, and should be modified so as not to continue beyond the close of the season commencing May 12, 1902, and In no event beyond June 1, 1903.