FIFTH DEPARTMENT, DECEMBER TERM, 1889. in justice and equity they belonged to her personal representatives, or those who may have otherwise succeeded to her personal estate. The circumstance that the plaintiff deposited the money in his own name does not give him, as against the real owner, any right or title to the same. (Van Alen v. American Nat. Bank, 52 N. Y., 1; Viets v. Union Nat. Bank of Troy, 101 id., 563.) This proposition is based upon the principle, well settled, viz. : That so long as money or property belonging to the principal or the proceeds thereof may be traced and distinguished in the hands of the agent or his representatives or assignees, the principal is entitled to recover it unless it has been transferred for value without notice. As the defendant failed to prove that the certificate was indorsed by the plaintiff, or that he transferred the same by assignment or otherwise to Mrs. Rockwell as her property, the defendant's position cannot be maintained unless he is able to show that the funds deposited were the funds of his sister, Mrs. Rockwell. The whole defense rests for its support upon this contention of the defendant. Assuming that to be true, then, in an action in proper form, with all the necessary parties before the court, the principal could recover the moneys from the bank; and we also think that if the bank had, before the commencement of this action, paid the moneys to the true owner in discharge of its liability, it would have been a perfect defense to this action. (Van Alen v. American Nat. Bk., supra.) If the facts which the defendant offered to show had been properly pleaded and proved, then the legal proposition would have been presented whether in this action, founded on the defendant's promise, it could defeat a recovery by showing that the funds when deposited belonged to another, who had demanded the payment of the same, such ownership not having been recognized by the defendant by payment of the money deposited. The plaintiff's position is, that so long as the bank retains the money he may maintain a common-law action on its promise to refund the money, and the question is not now presented whether the claimant could recover the money in an equitable action with all the necessary parties before the court. We may, however, pass all these questions without further consideration, for the reason that the defendant did not set up in its answer, as a defense, the facts which it offered to prove. There FIFTH DEPARTMENT, DECEMBER TERM, 1889. is no averment in the answer that the funds when deposited were the funds of Mrs. Rockwell. The claim of the defendant, as set forth in the answer, that the funds deposited, belonged to Mrs. Rockwell in her lifetime, is based upon the averment that. the plaintiff transferred the certificate to her in her lifetime, and that her executor is entitled to the moneys deposited with it by virtue of the transfer of the certificate. No issue was tendered on the controlling fact which it offered to prove in support of its defense. For that reason, among others, as the bill of exceptions. shows, the court ruled out the offer. There was no request made by the defendant to amend the answer so as to permit the proofs to be made and without an amendment to that effect, the defendant could not give evidence in support of the fact stated in the offer. The certificate did not bear interest and the plaintiff was permitted to prove that after the same was made out and handed to the plaintiff, at the cashier's counter, he discovered that no rate of interest was mentioned in the certificate, and he called the attention of the cashier to the fact, who then promised to allow three per cent on the deposit if it remained for any length of time. As the certificate was payable on demand, the money could have been withdrawn any moment by the payee of the certificate. The promise was conditional and executory, and was based upon a good consideration, as the payee allowed the money to remain with the bank for many years thereafter. No rule of evidence was violated in receiving proof of the defendant's parol promise to pay interest after it had received the money and delivered the certificate into the hands of the plaintiff. We have examined the other rulings made on the trial, to which exceptions were taken by the defendant, and fail to discover any error. The judgment should be affirmed, with costs. DWIGHT and MACOMBER, JJ., concurred. Judgment affirmed. Cases DETERMINED IN THE SECOND DEPARTMENT AT GENERAL TERM, December, 1889. IN THE MATTER OF THE APPLICATION OF ROSWELL P. FLOWER FOR AN ORDER DIRECTING FREDERICK W. BLECKWENN, AS TREASURER, ETC., OF LONG ISLAND CITY, TO CANCEL CERTAIN WATER RATES. Power of the legislature to itself relevy a tax, which was imposed under an unconstitutional statute which did not provide for notice to the parties assessed. Where water rates have been imposed upon property under an act, unconstitutional because of its affording no notice to the taxpayers of the assessment for the tax, the legislature has power to confirm the water taxes and levy them on the several pieces of land on which they were theretofore assessed under such unconstitutional act. Stuart v. Palmer (74 N. Y., 183) distinguished. The legislature may refer the question as to the sum to be raised and as to the district benefited, to commissioners; but it is not bound to do so, and may settle both questions for itself. APPEAL by Frederick W. Bleck wenn, treasurer and receiver of taxes of Long Island City, from an order of July 19, 1888, made at a Special Term held in Kings county, which directed the treasurer and receiver of taxes of Long Island City, within five days after the service of a copy of such order, to cancel, upon the rolls and records in his office, certain water rates then unpaid and of record upon certain lots of land in the first ward in said city in said order specified. This proceeding was instituted under the provisions of section 10 of chapter 656 of the Laws of 1886, providing that where the SECOND DEPARTMENT, DECEMBER TERM, 1889. invalidity or irregularity of any water rates appears on the face of the proceedings, any party in interest may apply to any court of competent jurisdiction for an order canceling the same. It was claimed in this case that title 10 of chapter 461 of the Laws of 1871, purporting to authorize the assessment of certain water rates, was unconstitutional. W. J. Foster, for the appellant Bleckwenn. J. Ralph Burnett and Eliphalet Nott Anable for respondent Flower. BARNARD, P. J.: By the charter of Long Island City vacant lots were subject to rents for water. Title 10, section 9, subdivision 4 of chapter 461, Laws of 1871, seems to refer to lots which had buildings on them. The act, section 12, subdivision 1, title 10, required the rents to be assessed upon building "or vacant lot" chargeable with water rent. By chapter 415, Laws of 1875, and by chapter 100, Laws of 1879, and by chapter 684, Laws of 1881, the water rents are put upon lots, vacant or otherwise. By the charter of 1871, a board of water commissioners was authorized to assess the water rents, and no notice was provided for to the taxpayers. The list was made out and filed and notice given to the taxpayers, who were then bound to pay the assessment to the city treasurer. The tax was invalid. (Remsen v. Wheeler, 105 N. Y., 573.) The legislature confirmed the water taxes and levied them on the several pieces of land on which they were heretofore assessed, or appeared of record to have been so assessed or charged. (Laws of 1882, chap. 383, §§ 1, 2; Laws of 1886, chap. 656, § 15.) The legis lature had the power to impose a tax in this way. The question was directly presented in Matter of Van Antwerp (56 N. Y., 261). The court says: "It is also objected that it is not competent for the legislature to validate a void assessment, and that it could only authorize a reassessment. The answer to this is that the legislature did not attempt to legalize the old assessments, but itself exercised the power of making new assessments. The old assessments are referred to, not for the purpose of adoption, but for the purpose of.. SECOND DEPARTMENT, DECEMBER TERM, 1889. fixing the specific amount by the proportion specified; and the act expressly levies that amount as a tax." This doctrine is not touched in the case of Stuart v. Palmer (74 N. Y., 183). The power of the legislature to tax is only limited by an apportionment of the burden. It is not denied that the legislature may not only tax, but apportion the burden among the property owners. In Remsen v. Wheeler (105 N. Y., 573), there was no act of the legislature validating the void tax. In Spencer v. Merchant (100 N. Y., 585), the Court of Appeals say: "The act of 1881 determines absolutely and conclusively the amount of tax to be raised and the property to be assessed, and upon which it is to be apportioned. Each of these things was within the power of the legislature, whose action cannot be reviewed in the courts upon the ground that it acted unjustly or without appropriate and adequate reason." * * * "The legislature may commit the ascertainment of the sum to be raised and of the benefited district to commissioners, but it is not bound to do so, and may settle both questions for itself; and when it does so, its action is necessarily conclusive and beyond review." These remarks were made in a case where the legislature had reassessed the tax originally imposed under a void law. The order should, therefore, be reversed, with costs and disbursements. DYKMAN, J., Concurred. Order reversed, with costs, and motion denied, with costs. 55 160 119a 625 THE PEOPLE OF THE STATE OF NEW YORK EX Disability or inability of a judge to act what cases are covered by it. The inability to act, specified in section 8 of title 3 of chapter 184 of the Laws of 1881, providing that it shall be the duty of the mayor of Yonkers to designate in writing one of the justices of the peace of that city, "who shall only in case of sickness, absence from the city, disability or inability of the city judge to act, exercise, in the place and stead of the city judge, criminal jurisdiction, such |