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George Riddell the five acres were assessed to the defendant, and he paid the taxes on the five acres, and fenced it. Then the defendant denies that any such conversation as the plaintiff testified to took place." The referee has mistaken the evidence in this regard. The plaintiff nowhere speaks of three acres, but, instead thereof, he said he would let him have the five acres for $300, and that it was the same land described in the complaint. The defendant did not deny that any such conversation as testified to by the plaintiff ever took place. They differed, it is true, as to the question whether the $300 was to be paid in stone or not. The plaintiff had testified that the conversation took place at the drug store. The defendant, when asked to state whether he made the bargain "at the place stated," answered that no such conversation took place at the store. We do not understand that he denied that he had a conversation with George in which George agreed to sell him the stone quarry lot, consisting of five acres, and that he was to pay therefor $300, for such was the conversation as he has alleged it in his answer. The referee further states in his opinion that he is unable to see how it could be found from the evidence what was the contract price to be paid by the defendant for the quarry, and consequently it is not necessary for him to make a finding as to the state of the accounts between the parties. Of course, if the amount that was to be paid for the land could not be ascertained, then it would not be necessary to ascertain the state of the accounts; but if, as we have shown, the contract price was $300, then the state of the accounts becomes material as bearing upon the question whether the plaintiff has been paid in full for the land, or any part thereof. The question of payment was the main one litigated upon the trial. Much evidence was taken as bearing upon that issue, and it should have been determined. The judgment reversed, and a new trial ordered, costs to abide the event.



(69 Hun, 535.) BUDD v. ALLEN.

(Supreme Court, General Term, Fifth Department. June 23, 1893.) SCHOOL TAXES-LAND LYING IN TWO DISTRICTS.

Plaintiff's land consisted of two contiguous parcels,-one of 15 acres, in school district No. 11, and the other of 75 acres, in school district No. 10. Plaintiff resided on the 15-acre parcel, but he worked both parcels as one farm. His hired man lived on the 75-acre parcel, and was paid yearly wages, and allowed the use of a house and garden. Held, that both parcels were assessable as one lot in school district No. 11; Laws 1864, c. 555, (Consolidated School Act,) § 66, as amended by Laws 1889, c. 328, providing that school-district taxes shall be apportioned on all the land within the boundaries of the district, except that "land lying in one body, and occupied by the same person, * * if assessed as one lot on the last assessment roll after revision by the assessors, shall, though situated partly in two or more school districts, be taxable in that one of them in which such occupant resides."

Appeal from Monroe county court.


Action by Thomas Budd against John J. Allen. From a judg ment of the county court affirming a judgment of the justice of the peace of the town of Webster, rendered on the verdict of a jury, in favor of plaintiff, defendant appeals. Affirmed.

Argued before DWIGHT, P. J., and LEWIS, MACOMBER, and HAIGHT, JJ.

S. D. Bentley, for appellant.

Hugh McKay, for respondent.

DWIGHT, P. J. The action was to recover the value of personal property of the plaintiff, sold, under direction of the defendant, in the collection of a school tax levied by the latter, in the year 1891, as sole trustee of joint school district No. 10, in the towns of Ontario, in Wayne county, and Webster, in Monroe county, upon certain farm lands of the plaintiff, of about 75 acres, lying within the bounds of that district, and in the town of Ontario. The plaintiff, for about three years before, and at the time of, the levying of the tax in question, lived on a parcel of land, of about 15 acres, situate in the town of Webster, and within the bounds of school district No. 11 of that town. The two parcels of land adjoined each other, the east line of the 15 acres coinciding with the west line of the 75 acres for a distance of 16 rods along the center line of the highway, which lay on the town and county line, and the whole 90 acres was used and worked as one farm by, and under the direction of, the plaintiff. His hired man lived on the 75 acres, and was paid yearly wages in addition to the use of a house and garden spot. In the years 1889, 1890, and 1891 the whole 90 acres was assessed as one lot in the town of Webster, and no part of the same was assessed in the town of Ontario in either of those years.

The foregoing are all the facts which are essential to the disposition of the main question in this case, viz. whether the 75 acres of the plaintiff's farm, which lay within the joint district No. 10, of Ontario and Webster, were taxable for school purposes in that district. The question is one purely of statutory construction, and the statutory provisions to be construed are found in the consolidated school act of 1864, (Laws 1864, c. 555,) as amended by chapter 328, Laws 1889. By section 66 of that act, as so amended, (Birdseye's St. p. 567, § 149,) it is provided as follows, viz.:

"School-district taxes shall be apportioned by the trustees upon all the real estate within the boundaries of the district, which shall not be by law exempt from taxation, except as hereinafter provided, and such property shall be assessed to the person or persons or corporation owning or possessing the same at the time such tax list shall be made out; but land lying in one body, and occupied by the same person, either as owner or agent of the same principal or as tenant under the same landlord, if assessed as one lot on the last assessment roll of the town after revision of the assessors, shall, though situated partly in two or more school districts, be taxable in that one of them in which such occupant resides."

The case before us seems to be brought precisely within the latter and exceptional provisions of this section, by the facts above

stated. The 90 acres of land lies in one body; is occupied by the same person, as owner; was assessed as one lot on the last assessment roll of the town in which the owner lived; and therefore, though situated partly in two school districts, was, it would seem, taxable in that one of them in which such occupant resided. But the appellant contends for the application to the case of section 71 of the same statute, (Birdseye's St. p. 568, § 154,) which reads as follows:

"Every person owning or holding any real property within any school district, who shall improve and occupy the same by his agent and servant, shall, in respect to the liability of such property to taxation, be considered a taxable inhabitant of such district, in the same manner as if he actually resided therein."

It is very plain, we think, that this section has no application to the case before us. The distinguishing fact contemplated by the provision is that the land referred to is occupied and improved by an agent or servant of the owner, and that fact does not exist when it is occupied and improved by the owner himself. The section, clearly, has application only to land belonging to an owner who does not reside upon it, but occupies it by an agent or servant, who lives upon it, and works it for the owner; such agent or servant being distinguished equally from the owner of the land, and from a tenant who works it for his own account. The plaintiff is not a nonresident owner, but lives upon, occupies, and works his own farm, and the whole of it. The fact that his hired man lives on the other side of the district line can have no effect upon the status of the owner as a taxable inhabitant of the one district or the other. The foregoing examination of the statute leaves, we think, no room for doubt, that the whole of the plaintiff's farm of 90 acres was taxable for school purposes in district No. 11 of Webster, and that no part of it was taxable in joint district No. 10, of Webster and Ontario. This seems to be the construction which has been uniformly put upon the statute by the department of public instruction, as shown by decisions of several superintendents, to which our attention is called by counsel for the respondent; and the quotation made by counsel for the appellant from a note to section 71, supra, contained in the Code of Public Instruction, published by the superintendent in 1887, at page 353, is, we think, quite to the same effect. The construction here given also brings the statute in question into harmony with the general statute in respect to the taxation of lands divided by town and county lines. 1 Rev. St. p. 389, § 4; Laws 1886, c. 316, § 1, (Birdseye's St. p. 2961, § 52,) and with the decisions of the courts which have passed upon the effect of these provisions of law, (Saunders v. Springsteen, 4 Wend. 429; Ward v. Aylesworth, 9 Wend. 281; People v. Wilson, 52 Hun, 388, 5 N. Y. Supp. 280; Hampton v. Hamsher, 46 Hun, 144.) Such being the law of the case, the defendant acted without jurisdiction in assessing any part of the plaintiff's land for taxation in district No. 10, and by issuing his warrant, and directing the levy upon, and sale of, the plaintiff's personal property, to pay such tax, was guilty

of a trespass, for which a recovery was properly had in the justice's court.

The only other question in the case, which seems to require consideration, arises upon the denial by the county court of the defendant's motion to strike out the allowance of costs in the judgment appealed from. We are asked to review this order, apparently, upon the assumption that the record shows a certificate made by the justice of the peace to the effect that it appeared upon the trial before him that the defendant acted in good faith in the matters out of which the cause of action arose. Code Civil Proc. § 3244. But this assumption is a mistaken one. The record contains no such certificate, nor any evidence that such a certificate was ever presented to the county court. On the contrary it does appear that counsel for the appellant, on the hearing of the appeal in the county court, moved for and obtained an order requiring the justice to make a special return, certifying whether or not it appeared, on the trial before him, that the defendant, in the acts complained of, acted in good faith, and that the justice made such return, certifying that such fact did not appear. It is true the justice went further in his return, and narrated a transaction between himself and the defendant, in which his signature was obtained to a paper which the justice afterwards understood was a


· certificate of good faith, but which he did not understand to be such when it was signed, and which, if it were such, was untrue. It is apparent why this return could not have been regarded by the county court as equivalent to the certificate required by the statute (section 3244, supra) as a condition of exempting the defendant from liability for costs. Judgment and order of the county court of Monroe county, appealed from. affirmed, with costs.



TOMPKINS et al. v. HUNTER et al.

(Supreme Court, Special Term, Yates County. April, 1893.)


A transfer by an insolvent of all his property to one of several of his creditors, to be applied to the payment of a bona fide debt, is valid; not being a general assignment for the benefit of creditors, within the meaning of Laws 1887, c. 503, providing that, in all general assignments of the estates of debtors for the benefit of creditors, no preference shall be valid, except to the amount of one-third of the value of the assigned estate, etc.


A judgment of the general term, reversing a judgment for defendant in an action by creditors to set aside such transfer, is not conclusive on a new trial, where such reversal was based on the assumption that there was an agreement between the debtor and creditor that the debtor should not make an assignment for the benefit of creditors, and it appears on the second trial that there was no such agreement.

Action by Charles M. Tompkins and others against Charles Hunter, the First National Bank of Penn Yan, and another, to have a

conveyance by the first to the second named defendant set aside, as in fraud of plaintiffs, and for other relief. Complaint dismissed. For former reports, see 18 N. Y. Supp. 234, reversed by 20 N. Y. Supp. 355.

William T. Morris, (William F. Cogswell, of counsel,) for plaintiffs. John T. Knox, for defendant Hunter.

Briggs & Sunderlin, (Edward Harris, of counsel,) for defendant First Nat. Bank of Penn Yan.

BRADLEY, J. There is no substantial dispute about the facts. The defendant Hunter, for some time prior and up to April 21, 1890, had been engaged in the business of grocer and produce dealer at Penn Yan, N. Y. He was then indebted to the defendant bank in about the sum of $29,000. He had other creditors, and his entire indebtedness amounted to about $36,000. On that day he conveyed all his real estate to the First National Bank of Penn Yan, and transferred to it all his personal property, except such as was exempt from levy and sale on execution. This conveyance and transfer were made by Hunter to the bank, and taken by it, in payment of the sum of $21,790.70 of his indebtedness to it. That sum was then so applied, and it was the fair value of the property. The plaintiffs were then creditors of Hunter, and afterwards they recovered judgments upon their claims against him. After the executions issued upon the judgments were returned unsatisfied, they brought this action. The first trial resulted in a judgment for the defendants, (18 N. Y. Supp. 234,) which was reversed, and a new trial granted, (65 Hun, 441, 20 N. Y. Supp. 355.) It is now urged that the disposition of the present trial is controlled by that determination of the general term on the review of the first trial. The question there presented and determined must be regarded as effectually disposed of, for the purpose of this trial, and the views of the court, there given, followed here. It was there assumed that at the time of the transaction between Hunter and the bank, which resulted in the conveyance and transfer made to the latter, there was an agreement or understanding between them that Hunter should make no general assignment for the benefit of his creditors. In the opinion of the court, delivered by Mr. Justice Macomber, it was said:

"The evidence before us shows, and the findings of the learned [trial] justice are to the effect, that in this instance the creditor, having taken alarm at the recent discussions of the legal questions arising upon transactions where one creditor had absorbed all the property of the debtor to the injury of other creditors, was careful to provide, in the arrangement which he made with his willing debtor, that no assignment under the general assignment act should be made. ** Is an agreement by which the debtor should make an assignment after dispossessing himself of his property of any greater moment than an agreement that he should not make an assignment of his property? In both instances the creditor undertakes to, and does, so far as an agreement can do it, control the action of his debtor. * 乖 Why should the creditor named in this action have concerned itself with any future matters pertaining to the debtor's estate, if it were acting entirely above board, and only as an honest and diligent creditor may act? And

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