were established by said appellant as a public | in favor of the action of the city and its offiimprovement of the streets of said city gen- cers, and, unless the complaint discloses a erally, and not for the benefit of the appellees state of facts which show clearly that the asor of their property. It is then averred that sessments are void, the right to enforce their the said assessments have thrown a cloud collection will be presumed. upon the appellees' titles, and a prayer that the assessments be annulled, that the appellees' titles be quieted, and that an injunction be granted. The appellant demurred to the complaint, which demurrer was overrule, and the proper exception taken. The case was then put at issue by the filing of an answer in general denial, and submitted to the court for trial, with a request for a special finding. Special finding made. Exceptions to the conclusions of law taken by the appellant. Motions for a venire de novo and for a new trial by the appellant. Motions over-cost thereof, and the assessment of the same ruled, and proper exceptions reserved.

There are two sections of the statute which give to cities organized under the general law for the incorporation of cities power to construct sewers,-sections 3106 and 3151, Rev. St. 1881. Specification 43 of the firstnamed section reads as follows: "To construct and regulate sewers, drains, and cisterns, and provide for the payment of the cost of constructing the same; to cause the same to be done by contract given to the best bidder after advertising to receive proposals therefor; to provide for the estimate of the

upon the owners of such lots and lands as There are several errors assigned, but it may be benefited thereby in such equitable only becomes necessary that we rule upon the proportion as the common council may deem first one: "The court erred in overruling just, which estimate shall be a lien upon the demurrer to the complaint." The com- such lots and lands, and may be enforced by plaint is clearly bad. Counsel for the appel-sale of the same in such manner as the comlees suggests that the complaint is not in the mon council may provide: provided, hownature of a bill in equity for an injunction, ever, that not to exceed ten per cent. of the but is a complaint to set aside the assess- value of such lots or lands, as the same is ments complained of, and to have their titles valued and assessed upon the tax duplicate to their respective pieces of property quieted for state and county or city taxes, shall be as against said assessments. This sugges-assessed against such lot or lands in any one tion is made in answer to the point made by year." Section 3151 reads as follows: "The appellant's counsel that the appellees will common council shall have power to construct not be granted any relief by way of injunc-and regulate sewers, drains, and cisterns, tion if any part of the assessments is legal, and provide for the payment of the cost of until they pay or offer to pay that part which constructing the same; and when, in its is legal. Whether the action is in the nature of a bill to enjoin the collection of the assessments, to annul and set the same aside, or to quiet title to the real estate upon which they rest, can make no difference, as the principle involved in either event is the same. In either case the action is, in character, an equitable proceeding, and if any part of the assessment is legal, though a part may be illegal, equity will not afford any relief until that part which is legal is paid, or an offer made to pay it.

opinion, the construction of any sewer would be of public benefit to the city, and necessary for the improvement of any street or streets, for the removal of surface or storm water therefrom, may, by a two-thirds vote, cause to be paid out of the city treasury such portions of the cost of the construction of such sewer as, in the opinion of said council, would be equitable and just." Section 3106 is found in an act approved March 10, 1873, which was an amendment to an act approved March 14, 1867. Section 3151 is a part of But the complaint does not present a case an act approved April 14, 1881. This last where the assessment is valid in part and in- act is composed of three sections, said secvalid in part, nor does it state a good cause tion quoted being the third. Sections 1 and of action for relief against a voidable assess-2 are amendments to certain sections of the ment. The complaint shows an assessment made by the appellant, a city organized and chartered under the laws of the state of Indiana, against the several pieces of property of the appellees, located within the corporate limits of the city, on account of the construction of certain sewers along certain streets of the city. There is no question but what, under the law, the city had the power to construct sewers, and to make assessments upon real estate situated inside of the corporation to pay therefor. In fact, counsel for the appellees concede this. There can be no question but that this action is in no sense a direct proceeding to contest the right of the city to enforce the assessments, but is a collateral attack upon its right so to do. This being true, every presumption will be taken

said act approved March 14, 1867, said section 1 being invalid for the reason that the section amended had theretofore been amended. Said section 3151 is not an amendment of any other statute, but is a new and independent section. But it is evident that the latter clause of said section, beginning with the semicolon, should be construed with, and as though it was a part of, sections 3161-3165, Rev. St. 1881. "And when, in its opinion, the construction of any sewer would be of public benefit to the city, and necessary for the improvement of any street or streets, for the removal of surface or storm water therefrom, may, by a two-thirds vote, cause to be paid out of the city treasury such portion of the cost of the construction of such sewer as, in the opinion of said council, would be

are penal in their character, and therefore the appellees have no cause to complain because the ordinance was not published. The appellees were residents of the city,-at least we may so presume; and it was their duty to take notice of the acts and proceedings of its common council relating to public matters. And the appellees knew that the improvements were going on, and it became their duty, as property holders, to inform themselves as to the authority by which the common council were making the improvements. The fact that the work was completed and paid for by the city out of its general fund worked no prejudice to the appellees. It could make no difference to them whether they paid to the contractors or to the city.

equitable and just." The sewer that is here provided for is a part of the street improvement, made so by the statute itself, and is only to be made when necessary to remove the surface or storm water from the street. The first clause of the section gives to the common council general power to construct and regulate sewers, drains, and cisterns, and to prov de for payment there for out of the city treasury, and no doubt authorizes a tax to be levied for that purpose throughout the city. But there is nothing in the record to indicate that in building the sewers out of which this litigation arises the common council intended to exercise the power granted in either branch of this section. It is evident that the said sewers were constructed under the authority given in specification 43, | The ordinances provided how the assessments § 3106. Every requirement under this provision seems to have been complied with, from the passage of an ordinance to the completion of the improvement.

The

should be made, and the proportion that should be paid by the property holders and by the city; declared the assessments liens upon the property, and provided the manner We have examined the ordinances critical- in which the assessments should be collected. ly, and are compelled to say that they are un- If the city saw proper to pay the contractors usually full and accurate in their provisions. and levy the assessments in installments, The proviso in said specification of section thereby rendering it less burdensome for the 3106, under which said sewers were con- property-holders to pay their assessments, the structed, as will be observed, forbids an as-city ought not to be prejudiced thereby. sessment during any one year to exceed 10 ordinances do not provide in whose name the per cent. of the assessed value of the property precepts should be issued; but, if necessary, to be affected, as the same appears on the the law will treat the city as an equitable astax duplicate for state and county or city signee of the assessments, and allow the pretaxes. The averments in the complaint re- cepts to issue in the names of the contractors lating to the said proviso are not very satis- for the use of the city. But we are unable factory. A conclusion of fact is averred, to see any good reason why the assessments rather than a statement of the facts from might not be made for the benefit of the city, which the court would be able to draw a and precepts issued in its name. The payconclusion. But if we concede that the as- ment by the city did not discharge the assesssessments exceeded 10 per cent. of the as-ments as against the property-holders; and, sessed value of the property as it appears on as the money is due to the city, we can see the tax duplicate, the averment does not ren- no good reason why the precepts might not der the complaint good, or tend in that direc- thus issue. The statute provides that the tion. The entire assessment is not void un- estimate may be enforced in such manner as der such circumstances, but only so much as the common council may provide. That the is in excess of 10 per cent. of such valuation; property was not assessed as provided for in and the appellées, not having paid or offered section 3163, supra, is wholly immaterial, as to pay all except the excess, are in no condi- the section under which the improvement tion to complain in a collateral proceeding. was made provides that the estimated cost Section 1 of the act approved April 13, 1885, and assessment shall be made upon the prop(Elliott's Supp. § 753,) may modify or repeal erty benefited thereby in such equitable mansection 3151, supra, (as to this we express ner as the common council may deem just. no opinion,) but, whether so or not, it in no The manner of making the assessment is way limits or widens the operation of speci- left to the discretion of the common council. fication 43, § 3106, supra. The subject-matter of the later act, as indicated both by its title and in the body of the act, is entirely different from that covered by the earlier act. The one relates to street improvements and the collection of assessments therefor; the other to the construction of drains, sewers, and cisterns, none of which are necessarily a part of a street improvement.

Whether the sewers which were constructed by virtue of the second ordinance were necessary and proper was a matter entirely within the discretion of the common council. The resolution by which the committee was appointed to ascertain the benefits to the different pieces of property was in accordance with the provisions of the ordinances and with the statute, and was emIt is contended by the appellees that, as inently proper. If the assessments were unthe ordinances were not published, and act-equal, that was a question to be determined ual notice thereof given to them, they are not bound thereby. The statute for the incorporation of cities makes no provision for the publication of ordinances, except such as

by the common council when brought before it. The judgment is reversed, with costs, with instructions to the court below to sustain the demurrer to the complaint.

(115 N. Y. 387)
CONROW et al. v. LITTLE et al.1

the work. The plaintiffs fulfilled their

(Court of Appeals of New York. Oct. 8, 1889.) | agreement with Branscom, delivered to him,

BAILMENT-LIEN-ESTOPPEL.

or on his account, paper of the value of 1. Plaintiffs, having contracted with a certain $3,589.50, and besides loaned and advanced person to manufacture paper for him, delivered to him $4,096.07, making a total indebtedthe same upon his order to defendants, who had ness of $7,685.57. Included in that was the contracted to print a book thereon, but had refused to make such contract until assured by plaintiffs price of 150 reams of paper that the plainthat they would deliver the paper upon such per- tiffs, under their contract with Branscom, son's order. Both plaintiffs and defendants ac- delivered directly to Little & Co. on the 21st, cepted from him in payment certain notes, which 22d, and 23d days of October, 1884, and the were discovered to be forgeries. Held that, as bill therefor, under date of October 23d, was between plaintiffs and defendants, the paper was the property of the person with whom defendants made out and given to Branscom, and stated had contracted; and, as they refused to rely up- the delivery of the paper to J. J. Little & Co. on his personal credit, they have a lien upon the Immediately upon the making of their contract with Branscom, Little & Co. proceeded to execute it, and before the 29th of October, in composition and electrotyping, printing and otherwise, did work on account of the books to the amount in value of $950.24. In doing this they actually used 4 out of the 150 reams, and still retained 146 reams. No part of the debt due them has been paid.

whole of the paper for the work done.

2. An action by plaintiffs to recover the property, being based upon a rescission of the contract, cannot be maintained where, upon learning of the vendee's fraud, they have commenced an action against such vendee for the amount due under the contract, as they thereby waived their right to re

scind it.

3. The plaintiffs, by their conduct, having voluntarily affirmed such contract, which formed the basis of the contract made by defendants, cannot

repudiate it to the latter's loss.

Appeal from supreme court, general term, second department.

It appears that Branscom fraudulently inment to supply him with paper by delivering duced the plaintiffs to enter into their agree

Jas. R. Marvin, for appellants. Henry August 9, 1884, purporting to be made by to them as genuine a note of $7,000, dated Parsons, for respondents. the "Mississippi Mills," payable six months DANFORTH, J. The plaintiffs were manu-after date to the order of Col. Ed. Richardfacturers and dealers in paper, under the son, and to be indorsed by him; and on the firm name of "Conrow Brothers," and the 9th of September, 1884, Branscom gave a defendants Little and Demorest printers, un- note of $5,000 of like tenor to Little & Co., der the name of "J. J. Little & Co." The which they received on account of printing. other defendant did business as a publisher It turned out, however, that both notes were of books under the name of "Branscom, forged. On learning that fact, and on the Manager." His fraud was the occasion of 31st of October, the plaintiffs commenced an the controversy, but he makes no defense, action against Branscom in the superior and the issue is between the other parties. court of New York city, for the recovery of It was tried at special term, and from the the sum of $7,685.57, alleging the fraud findings of the trial judge, and from uncon- practiced upon them to induce the sale of tradicted evidence, it appears that in August, goods and loan of money, and claiming judg1884, the plaintiffs agreed to manufacture ment for this sum. On the 1st of November for, and sell and deliver to, Branscom, at they obtained an attachment in that suit such place as he might direct, and to such from one of the justices of the court against parties as he should employ to print his book, the property of Branscom, and it was levied such paper for printing purposes as he might upon money of Branscom on deposit in the require, to the value of $7,000. He was ne- National Shoe & Leather Bank. On the 18th gotiating with J. J. Little & Co. to do this of November $2,915, part of the money so printing, and so informed the plaintiffs; but levied on, was drawn from the bank by Little & Co. refused to enter into an agree- plaintiffs on Branscom's check, made and ment to that effect "until they were assured given to them on that day, and applied on by plaintiffs that they would furnish the account of the money theretofore loaned by paper to Branscom and deliver it to Little & them. The sheriff also, on the 5th of NoCo. for the printing of the books." On the vember, levied on the 146 reams of paper 9th or 10th of September, Theodore Conrow, then in the hands of Little & Co. In July, one of the plaintiffs, knowing of this nego-1885, the attachment suit was discontinued, tiation, called with Branscom upon Little & but in the mean time, on the 6th of DecemCo., and stated to them that the plaintiffs ber, 1884, the present action was begun. had sold to Branscom the paper for printing The plaintiffs alleged that Little & Co. the books by Little & Co., and that they claimed a lien upon the 146 reams of paper would deliver it to them for that purpose. for the sum due them, viz., $956.25, and Thereupon Little & Co. entered into an agree- asked for judgment; that the defendants acment with Branscom to do the type-setting quired no lien upon, or right to, said paper, and electrotyping for the books, and print and that the plaintiffs have judgment against the same upon the paper so to be delivered to them for its possession and return, or for the them by the plaintiffs for that purpose, and value, viz.. $1,445.40. The defendants set Branscom was to pay Little & Co. cash for up their lien and the attachment proceedings, and upon trial asked for a dismissal of the complaint; but the learned trial judge

1Reversing 41 Hun, 395.

denied that application, and directed judg- at least include a recompense for the labor ment according to the prayer of the plaintiffs. Concerning its correctness the judges of the court below differed, but a majority were for affirmance.

tion of legal principles, be permitted to retake the property until that payment is made.

done and materials prepared for use, and for that the law gives a lien or right of detention. It attached the moment the paper came into their possession for the purpose of havUpon the facts found we think the judg- ing work done upon it, and remains good unment should have been the other way. First, til discharged by payment, not only for labor as between Conrow Brothers and Little & literally expended upon the paper itself, (as Co., the question is, which of two innocent by printing,) but for any act done, or labor persons should suffer from the fraud of a performed, or money expended in the prepthird? It is plain that, except for the inter-aration of instrumentalities by which that vention of the former, and their assurance labor was to be performed, as types, cuts, that they were to manufacture the paper for illustrations, electrotypes, and other things Branscom, and that it would be forthcoming of like nature and object. The defendants' when required, the latter would not have un- claim does not go further, and neither Bransdertaken the work which Branscom wanted.com nor the plaintiffs can, without the violaIt is true this assurance was given in ignorance of Branscom's fraud, but it was the occasion of the defendants' agreement; and, if There is another ground for judgment in the plaintiffs are now permitted to take away favor of the defendants. The contract bethe paper delivered in apparent fulfillment of tween Branscom and the plaintiffs was, upon their promise, and as the property of Brans- the discovery of Branscom's fraud, voidable com, they, not less than Branscom, will be at their election. As to him, the plaintiffs wrong-doers, although in making that prom- could affirm or rescind it. They could not ise they had no intention to do harm. I do both, and there must be a time when their think the inquiry is the same as if Branscom election should be considered final. We think had committed no fraud, and was, in equity that time was when they commenced an acand morals, the real owner of the paper, as tion for the sum due under the contract, and he was in law. It had been manufactured in the course of its prosecution applied for for him, and delivered pursuant to his order, and obtained an attachment against the propand he had the written title. This was as erty of Branscom as their debtor. They then the plaintiffs had assured defendants it would knew of the fraud practiced by him, and disbe. They must therefore be held to stand in closed that knowledge in the affidavit on Branscom's place, and to have taken the risk which the attachment was granted, and bewhen they placed the goods as Branscom's came entitled to that remedy; because it was goods in defendants' possession. What then, made to appear that a cause of action existed as against Branscom, were the defendants' in their favor by reason of "a breach of conrights or interest in the paper? In regard to tract to pay for goods and money loaned, obthe four reams on which work had been act-tained by fraud." The attachment was levied ually done, no question arises. The lien is conceded. Upon the others no work had been done, and the claim is for the general balance of debt due on account of the job for the completion of which the paper had been delivered. It cannot be said that the two things were unconnected, for, first, each was indispensable to the other, the work done by the defendants was useless if no paper was to be had for printing, and the paper was useless unless type and plates were provided for imprint; and, in the next place, the work and paper are connected by the very agreement and understanding of the parties. The defendants refused to enter upon the work of preparing type and plates until assured that the paper was to be furnished, and no delivery of the work was to be made except upon cash payment. Whatever the aspect of the contract at its inception and at its close, the defendants refused to rely to any degree upon the personal credit of Branscom, and from this and other circumstances attending the method of dealing of the parties, and the transaction itself, a contract of lien is necessarily to be implied. Possession was acquired by contract, and when, through the owner's fault, completion of the work was prevented, a liability was incurred to pay such damage as the defendants should sustain. This would

-

and the action pending when the present action, which repudiates the contract, and has no support except on the theory of its disaffirmance, was commenced. The two remedies are inconsistent,-by one the whole estate of the debtor is pursued in a summary manner, and payment of a debt sought to be enforced by execution; by the other specific articles are demanded as the property of the plaintiff. One is to recover damages in respect of the breach of contract; the other can be maintained only by showing that there was no contract. After choosing between these modes of proceeding, the plaintiffs no longer had an option. By bringing the first action after knowledge of the fraud practiced by Branscom, the plaintiffs waived the right to disaffirm the contract, and the defendants may justly hold them to their election. The principle applied in Foundry Co. v. Hersee, 103 N. Y. 26, 9 N. E. Rep. 487, and Hays v. Midas, 104 N. Y. 602, 11 N. E. Rep. 141, require this construction, for the present contains the element lacking in those cases, viz., knowledge of the fraud practiced by the vendee, and by reason of it the plaintiffs were put to their election.

It is not at all material to the question that the plaintiffs discontinued the first suit before bringing the present to trial; for it is the

fact that the plaintiffs elected this remedy, or undue influence to make the change, there was and acted affirmatively upon that election, no ground to contest the validity of the codicil. that determines the present issue. Taking Appeal from supreme court, general term, any step to enforce the contract is a conclu- fourth department.

sive election not to rescind it on account of

E. Countryman, for appellants. Albert F. Gladding, for respondents.

anything known at the time. After that the option no longer existed, and it is of no consequence whether or not the plaintiffs made DANFORTH, J. Alexander Foster made their choice effective. It does appear, how- his will on the 5th of December, 1883, and a ever, that, after the attachment was levied codicil on the 14th of March, 1884. He made upon Branscom's money, part of the money what purports to be a codicil on the 24th of so levied upon was paid over to the plaintiffs. June, 1884. He died on the 15th of August, It is not important that it was drawn on 1884, and the will and codicil of March 14th Branscom's check, for the attachment was were admitted to probate without objection; still in force, and the suit pending, and the but the paper of June 24th, 1884, was obeffect of that proceeding as to third parties jected to by Elizabeth E. Lee and De Witt A. could not be defeated by adopting another in- Gleason on the grounds-First, that the tesstrumentality to get the money out of the tator was, at the time, of unsound mind, and bank. Nor could its voluntary application incompetent to execute the same; second, upon a debt other than that contracted for that its execution was procured by fraud and the paper permit the plaintiffs to reassume undue influence; third, that it was not propthe title to it. In either aspect of the case erly executed as a codicil. The second ground the plaintiffs failed to make out a cause of was approved by the surrogate, and for that action. The rights which the defendants as- reason probate was refused. The general sert were acquired in good faith and for val-term reversed the decision of the surrogate, ue, and in reliance upon the plaintiffs' repre- and directed the paper of June 24th to be adsentations. To the truth of those represen-mitted to probate as a second codicil. The tations, verbal and written, the plaintiffs appellants' counsel urges against their decismay lawfully be held. They are directly ion the same ground which prevailed with within the well-established rule that, where the surrogate, and contends that the codicil one states a thing to another with a view to of June 24th was procured by undue influthe other altering his position, then the per-ence over the decedent. The appellants are son to whom the statement is made is enti- Elizabeth E. Lee and De Witt A. Gleason. tled to hold the other bound, and the matter is regulated by the state of facts imported by the statement. Griswold v. Haven, 25 N. Y. 608; McNeil v. Bank, 46 N. Y. 325. The defendants' rights, therefore, are greater than Branscom's, and should be indefeasible.

In the second place the plaintiffs, by their conduct, have voluntarily affirmed the contract which formed the basis of the defendants' transaction with Branscom, and it cannot now be repudiated to the defendants' loss.

It follows that the judgments of the courts below should be reversed, and a new trial granted, costs to abide the event. All con

cur.

(115 N. Y. 664)

Ross et al. v. GLEASON et al.

They were two of the four children of John R. Gleason, who was a nephew of the decedent. They were beneficiaries under the will and first codicil, and contestants before the surrogate against the probate of the second codicil. By the will (December 5, 1883) the testator says: "I give and bequeath to each of the four children of my nephew, John R. Gleason, the sum of five hundred dollars, provided De Witt A. Gleason, one of such children, within sixty days after my death, and upon the request of my executor, reassigns to my executor a mortgage on the Methodist Church at Norwich, N. Y.; and in case such De Witt A. Gleason does not, within such sixty days, deliver and properly assign such bond and mortgage to my executor, the bequest to such four children shall be void, and the money shall be disposed of under the re

(Court of Appeals of New York. Oct. 8, 1889.) siduary clause of this will; but nothing here

WILLS--FEAR AND FRAUD,

It appeared that a testator had assigned to the son of his nephew a certain mortgage, with written authority to sell the same, agreeing to give him a part of the proceeds of such sale. He made a will bequeathing a sum of money to each of the children of such nephew, but provided that such bequests should be void unless the mortgage was reassigned to his executors within a given time. He subsequently served a written notice upon the assignee of such mortgage revoking his authority, and, upon learning thereafter that transactions had taken place by which the assignee and his sister's husband had realized part of the value of the mortgage, he revoked by a codicil the bequests formerly made to such assignee, and the other children of his nephew. Held that, there being no evidence that testator was induced by fear, fraud,

1 Affirming 44 Hun, 626, mem.

in contained shall be construed as releasing any right or interest in such bond and mortgage to such De Witt A. Gleason." By the codicil of March 14, 1884, he confirmed the will in every respect, except as follows, saying: "I hereby will and direct that in case De Witt A. Gleason and Clark Gleason, or either of them, present any claim or debt or demand against my estate, of any name or nature whatsoever, except a claim for the legacy bequeathed to them in my said will, that then and in that case the amount of any such claim, debt, or demand shall be deducted from the sum bequeathed to the one or both presenting such claim, debt, or demand, and such legacy shall be reduced by the amount