and 118 New York State Reporter

tending to in any way pass upon the merits of her claim or the defenses which have been heretofore or may be hereafter urged against her right to relief, we think that the motion for a new trial upon the ground of newly discovered evidence should have been granted.

The order accordingly should be reversed, with $10 costs and disbursements of this appeal to the appellant, and the motion granted upon the payment of all the costs in the action, including the costs and disbursements of other appeals up to the date of the motion. All

concur.

(41 Misc. Rep. 238.)

REESE et al. v. NORTHRUP.

(Supreme Court, Special Term, Erie County. July, 1903.)

1. TAXATION-SALE-DELINQUENT LANDS-REASSESSMENT,

Under Tax Law, § 21 (Birdseye's Rev. St. p. 3,534), requiring assessors to prepare an assessment roll, setting down the names of all taxable persons, and the quantity of real property taxable to each, and the value thereof, and section 89 (Birdseye's Rev. St. p. 3,557), providing for the reassessing of the unpaid tax of a resident taxpayer, and charging the land therewith, lands in Cattaraugus county belonging to a resident cannot be sold for unpaid taxes until after reassessment, and charged on the land; Laws 1879, p. 305, c. 229, § 5, relating to the collection of taxes in such county, and authorizing the county treasurer to sell for taxes charged on the land without reassessment, not applying, for the reason that it contains no specific provision for charging the taxes on the land.

Action by Andrew J. Reese and Julia A. Reese against IIalsey F. Northrup. Demurrer to plaintiffs' complaint. Overruled.

W. V. Smith, for plaintiffs.

E. D. Northrup, for defendant.

KRUSE, J. This action is brought by the plaintiffs, the owners of certain lands situate in the city of Olean, in the county of Cattaraugus, to set aside a sale of their said lands made by the county treasurer of that county for taxes assessed therefor against them, upon the ground that the sale was unauthorized and void, and that the conveyance made by the county treasurer to the purchaser on such sale is a cloud upon the title of the plaintiffs.

The precise claim of the plaintiffs is that inasmuch as the tax debtors, the owners of the lands-the plaintiffs herein-were residents of the city of Olean, the tax district in which the lands are situate, the lands could not legally be sold for taxes without a reassessment of the tax, and charging the lands therewith, as is provided in section 89 of the tax law, which in this case was not done.

On behalf of the defendant it is contended that this section has no application to the sale of lands for unpaid taxes in Cattaraugus county; that, under the provisions of the statute relating to the collection of taxes in Cattaraugus and Chautauqua counties (Laws 1879, p. 304, c. 229), a sale of lands for unpaid taxes may be made by the county treasurer upon the first return of unpaid taxes by the collector to him without such reassessment.

I think the defendant's position is untenable, and that the demurrer must be overruled. The latter act, as its title indicates, relates to the

collection of taxes in those two counties, and, as was said by Judge Andrews in Chard v. Holt, 136 N. Y. 37, 32 N. E.

741:

"The main purpose of the act of 1879 referred to was to eliminate the agency of the Comptroller of the State in respect to the sale and conveyance of lands for unpaid taxes, and to substitute county agencies and make their authority complete and uniform in effecting and enforcing the collection of taxes in the counties mentioned."

In section 32 of this special act it is expressly provided that, where no provision on the subject is made in the act, all the general laws of this state in relation to the assessment and collection of taxes shall, so far as they are applicable, be in force in respect to the assessment and collection of taxes in these two counties, and to the sale of land for taxes therein, except wherein the authority is given or duty enjoined by those laws on the Comptroller of the state, the same authority shall be exercised and the same duties shall devolve on the treasurers of these two counties. Sections 21 and 29 of the tax law (Birdseye's Rev. St. pp. 3534, 3538), relating to the form of the assessment roll, concededly apply to Cattaraugus county, and to the city of Olean as well. Section 21 requires the assessors to prepare an assessment roll, containing six separate columns. In the first column they shall set down the names of all the taxable persons in the tax district; in the second, the quantity of real property taxable to each person, with a statement thereof in such form as the commissioners of taxes shall prescribe; in the third, the full value of such real property; in the fourth, the particulars relating to taxable personal property owned by each person; in the fifth, the value of taxable rents; and in the sixth, the value of the special franchise as fixed by the State Board of Tax Commissioners. Section 29 provides that the real property of nonresidents of the tax district shall be designated in a separate part of the assessment roll, and requires the land to be described with precision. The details of the description are quite minutely prescribed by that section.

It will be seen that the assessment provided for by section 21 contemplates an assessment against the taxable persons resident in the tax district, while that contemplated by section 29 is an assessment against property only. So that, while a resident taxable person is assessed for his real property in the tax district, the description of it is less definite and specific than where the property itself is to be assessed, for which provision is made in section 29; and section 89 (Birdseye's Rev. St. p. 3557), which provides for reassessing of such an unpaid tax of a resident taxpayer, and charging the land therewith, specifically provides for adding a description of the real property to the assessment roll of the then current year in the part thereof relating to nonresident lands, and stating that it is a reassessment of such tax, and further provides that it shall be regarded, for all purposes of assessment and collection, as a nonresident tax for the year in which such description is added.

While it is true that the special act under consideration (Laws 1879, p. 305, c. 229, § 5) authorizes the county treasurer to advertise and sell lands for the payment of unpaid taxes, it is only such taxes as are charged on lands; and, inasmuch as no specific provision is made in the special act for charging the tax upon the lands, it would seem

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that the provisions of the general tax law contained in section 89 are applicable, and that the sale of these lands made by the county treasurer without the reassessment was without authority and is of no effect. Nor do I think the case of Board of Supervisors v. Betts (Sup.) 6 N. Y. Supp. 934, at variance with the views which I have expressed. While the sale under a similar statute, without the reassessment, was upheld in that case, and the record discloses that the sale was attacked upon that ground, yet an examination of the record discloses further that there was an express finding by the trial court that all of the acts done under the provisions of that special law (Laws 1878, p. 71, c. 65) were legalized, ratified, and confirmed by a subsequent act of the Legislature (Laws 1882, p. 389, c. 322, § 15); and this seems to have been the ground upon which the judgment was affirmed at General Term, for, while these specific grounds upon which the plaintiffs attack this sale were also urged in that case, yet they were not referred to in the opinion at General Term, but the decision of affirmance seems to have proceeded upon the curative effect of the act referred to.

It follows, therefore, that the defendant's demurrer to the complaint must be overruled, with costs, but with leave to the defendant to answer, upon payment of the costs of the demurrer, within 20 days after the entry of the order overruling the demurrer, and notice of entry thereof.

Demurrer overruled, with costs, with leave to defendant to answer, upon payment of costs, within 20 days after entry of order overruling demurrer, and notice of entry thereof.

ALTMAN V. WESTERN UNION TEL. CO.

(Supreme Court, Appellate Term. January 2, 1903.

1. TELEGRAPH COMPANIES-ERRORS-DAMAGES.

Where a message signed "Altman" was as easily read "A. H. May," and was so sent by defendant telegraph company, the negligence was not so gross as to destroy the provision on the contract under which it was sent, limiting defendant's liability to the amount paid for sending the message.

2. SAME-RESENDING MESSAGE.

Where a telegram for money sent by plaintiff from Toledo, Ohio, to New York City, was delivered Saturday, 2:30 p. m., but on account of an error was ineffectual, and the company agreed to resend it, they were not liable for failure to deliver the corrected message until the following Monday, it not appearing when the corrected message was agreed to be sent, or what time was ordinarily required for such sending, nor how far the person to whom it was sent resided from the telegraph office.

A telegram for money sent by plaintiff, a traveling salesman, was not delivered for several days, and meanwhile plaintiff, in order to continue on his way, borrowed money by leaving his sample trunk as security. The trunk was forwarded to him four days later at a cost of $4. Plaintiff testified that his average earnings were from $40 to $50 per week, and the toll for sending the message was 80 cents. Held, in an action against the telegraph company, in which plaintiff recovered a judgment for $40.80. that the damages were too remote and speculative.

Appeal from Municipal Court, Borough of Manhattan, Fourth District.

Action by Philip E. Altman against the Western Union Telegraph Company for error in sending a message. Judgment for plaintiff for $40.80, and defendant appeals. Reversed.

Argued before FREEDMAN, P. J., and CLARKE and GREENBAUM, JJ.

George H. Fearons and Rush Taggart (Francis R. Stark, of counsel), for appellant.

Alexander Rosenthal, for respondent.

CLARKE, J. Plaintiff, a traveling salesman for S. Cohen & Co., of this city, was at the Boody House in Toledo, Ohio, with his trunk of samples, when he received a telegram from his house ordering him home. This was some time on Saturday morning. He wrote out on one of the defendant's blanks a telegram as follows: "S. Cohen & Co. 78 Walker St. New York City. Wire me twenty dollars immediately Altman.' The signature was not plain and distinct. It can be read as plainly "A. H. May" as "Altman." It was delivered at the store of S. Cohen & Co., with reasonable dispatch, at about 2:30 p. m. of the same Saturday. When delivered it bore the signature "A. H. May." It had been sent "collect," and its acceptance was declined; addressee indorsing thereon, "Don't know A. H. May." Plaintiff, having ascertained from the company that the dispatch had not been accepted by his house, testified that, having told the company's representative at Toledo the importance of getting word to his house so that he could get away from Toledo that afternoon, that representative told him that the message would be corrected immediately, and forwarded and delivered to plaintiff's firm in New York with the corrected name. Not receiving an answer that afternoon, on Sunday he borrowed $20 from the proprietor of the hotel, and, leaving his trunk as security, returned to New York on Sunday afternoon. The corrected telegram was delivered on Monday morning. His trunk was sent by express to him at a cost of $4, but did not arrive for four days. He testified that his average earnings while on the road were from $40 to $50 per week. Among the conditions on the back of the blank on which the original message was sent, and which have uniformly been held to be a part of the contract (Kiley v. Western Union Tel. Co., 109 N. Y. 236, 16 N. E. 76), were the following:

"To guard against mistakes or delays, the sender should order it repeated; that is, telegraphed back to the originating office for comparison. For this one-half the regular rate is charged in addition. It is agreed between the sender of the following message and this company that said company shall not be liable for mistakes or delays in the transmission or delivery, or for nondelivery of nonrepeated messages beyond the amount received for sending the same; nor in any case for errors in cipher or obscure messages."

If the case rested upon this original message, this judgment could not stand, for it was promptly delivered to the proper addressee, and the only mistake was in the signature. And, with the original before the court, we must say that it is as easily read as sent as intended. It would therefore come under the clause of "obscure messages," or, in any event, the negligence could not be held so gross as to destroy the provision limiting liability to the amount paid for the message. What the sender had paid for had been done. The message he had written

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had been sent and delivered, and, if mistake there was, the utmost that could be received would have been the toll therefor, 80 cents. We do not see how the case is helped by the attempted correction. It is in evidence that the first message was delivered at about 2:30, and that Cohen & Co. closed from 4 to 5 o'clock on Saturday afternoon. It was not proved when the second message was agreed to be sent, there was no evidence as to the time ordinarily consumed in the transmission of a telegram from Toledo to New York, the distance from the nearest telegraph office in New York to Cohen & Co's. store, of the time when the corrected copy was received in New York, or other condition or circumstance to enable the court to judge as to what would be a reasonable time for the transmission and delivery of such a message; all of which were necessary parts of plaintiff's case, the absence of proof of which was fatal. Ayres v. Western Union Tel. Co., 65 App. Div. 149, 72 N. Y. Supp. 634.

Another independent ground for reversal is that the damages proved were altogether too remote and speculative.

Judgment reversed, and new trial ordered, with costs to appellant to abide event. All concur.

(41 Misc. Rep. 249.)

SUTHERLAND v. LASHER et al.

(Supreme Court, Special Term, New York County. July, 1903.)

1. JUDGMENT-VACATING-BANKRUPTCY-DISCHARGE.

Where a voluntary bankrupt inserts a certain street number as the residence of a judgment creditor, when as a matter of fact he does not know such residence, it is a violation of Bankr. Law July 1, 1898, c. 541, § 7 (8), 30 Stat. 548 [U. S. Comp. St. 1901, p. 3425], providing that, if the residence is unknown, that fact shall be stated, and his motion to vacate the judgment and an execution issued thereon will be denied where the creditor had no notice of the bankruptcy proceeding until such motion. 2. SAME DISCHARGE IN BANKRUPTCY.

Where a motion is made by a bankrupt to vacate a judgment rendered against him and an execution levied thereon, appearance by the judgment creditor to oppose the motion is not a collateral attack on the discharge where his claim is that the discharge did not affect his judgment.

Action by George R. Sutherland against Lewis P. Lasher and others. Motion to vacate judgment for plaintiff and an execution thereon denied.

Breck & Freeman, for the motion.
Edward Hassett, opposed.

GIEGERICH, J. A motion is made by the judgment debtor, who has, since the rendition thereof, passed through voluntary bankruptcy, to vacate and cancel the judgment, and to vacate and set aside an execution which has recently been issued thereon. The plaintiff, who is the judgment creditor, resists the application on the ground that when the defendant filed his petition and schedules praying for a discharge in bankruptcy the judgment in question was not properly scheduled, it being therein set forth as follows: