plaintiff from seeing a train which Murphy, the flagman, is truthful and was approaching on the third; that did what he says he did in the warnthe prevailing noise prevented hearings, then the plaintiff cannot recover. ing it; that he and his companions If the jury believe the account that looked for the flagman whom defend- Murphy gave, that he gave the warnants had uniformly kept at that cross-ings and made the outcry to stop the ing, and who was required to be kept men in the manner he describes, the there by an ordinance of the city, but plaintiff is not entitled to recover." he was not there, and there was no This request was refused, and excepsignal to indicate the approaching tion taken. train by which plaintiff was injured. At the close of plaintiff's evidence a motion was made for a nonsuit, which was denied.

Held, No error; that the request was objectionable, as it precluded the jury from construing Murphy's evidence.

Judgment of General Term, affirming judgment for plaintiff on verdict, affirmed.

Opinion by Church, Ch. J. All concur.

CITY CHAMBERLAIN. MIS

TAKE.

GENERAL

Henry Smith, for applts. Amasa J. Parker, for respt. Held, No error; that contributory negligence could not, as matter of law, be imputed to plaintiff; that under the circumstances a man of ordinary prudence might have inferred that no train was approaching, and that it was safe to cross, 47 N. Y., 400; N. Y. SUPREME COURt. that the question whether exceptional circumstances are such in a given case as to require additional and unusual precautions; and, if so, what precantions, necessarily call for inferences and the exercise of judgment, and must be determined by the jury. That the flagman having been placed at the crossing by defendants, his neglect to give warning and properly discharge his duty, or in absenting himself from his post, is imputable to defendants.

TERM. THIRD DEPT. The City of Cohoes, respt., y. Leonard Cary et al., applts.

The Court charged the jury that the testimony of Murphy, a witness for defendants, that he was flagman and that he gave certain warnings and cried out to plaintiff to stop, presented the most important question in the case. He was afterwards requested by defendants to charge that "if the jury believe that

Decided November, 1877. A City Chamberlain who, in good faith, and without corruption on his part, makes overpayments to contractors through the fault or mistake of the Common Council in issuing different pay warrants covering in part the same payments, is not responsible to the city for the amount of such overpayments. Appeal from judgment entered in favor of plaintiff upon the report of a referee.

In 1872, one Trull was contractor for building the Remsen Street sewer in the city of Cohoes, at the price of $2,177.80. Trull wished an advancement, and the Common Council of the city, at his request, issued a warrant to the defendant, the City Chamberlain, to pay Trull $1,000, on account of Remsen Street sewer, out

Held also, That Cary made no overpayment to Ring & Co. while he was in office, and no fact is shown why he should be held liable on the case for the $2,000. It is not proved or claimed that he acted in bad faith or corruptly in making his statement

of contingent fund, and the amount explicit written order of plaintiff's was so paid. In May, 1873, another Common Council. The mistake was warrant was issued to Trull for $2,177.- in the action of the Common Council 80, payable ont of the Remsen Street in drawing pay warrants for Trull sewer fund. Annexed to this was an for $3,177.80 when he was entitled to account for services to that amount, but $2,177.80. and an affidavit that no part thereof had been paid. Defendant paid the warrant at its face. In fact, the former $1,000 should have been deducted. In the same way $2,000 was advanced to Ring & Co., in August, 1873, on a contract for paving Mohawk Street. The warrant was to his successor. So far as appears marked paid, and the amount entered in full on the ledger. In January, 1874, another warrant was issued by the Common Council to Ring & Co. for $1,698.90 (that being the full amount of the contract), on the account for the work done, which was duly verified. At the bottom of this warrant were these words in brackets:

"Deduct all previous payments on
account of this work, D. J. J.," the
initials being those of the Mayor.
Defendant paid and indorsed thereon,
$4,558.12, not including the $2,000
paid on the other warrant. Afterwards,
defendant went out of office and told
his successor that the payments on
account of the warrant were all on
the back of it. The successor paid
Ring & Co. the balance without hav-
ing discovered the $2,000 warrant,
or the charge thereof on the ledger.
This action is brought by the City to
recover of defendant the amounts
thus overpaid.

J. T. Crawford, for applts.
P. D. Niver, for respt.

Held, That defendant is not properly chargeable with the $1,000 overpaid to Trull. It was made by him in perfect good faith and upon the

he supposed he told the truth, and in one sense it was true that all payments upon that warrant were indorsed upon it. In fact the mistake in each instance was due to the vicious custom of the Common Council in drawing two pay warrants covering in part the same payment.

Judgment reversed and new trial granted.

Mem. by Boardman, J.

ASSESSMENTS.

N. Y. COURT OF APPEALS. Merritt et al., applts., v. The Village of Portchester et al., respts.

Decided November 27, 1877.

The provisions of a charter in relation to assessments for regulating and grading streets must be strictly followed.

Where the charter requires the commissioners of assessment to take an oath, faithfully and fairly to discharge the duties, &c.," and the commissioners have taken an oath to perform the duties, "to the best of his ability," their subsequent proceedings are illegal.

Where the charter requires the commissioners, after making their estimate and assessment, to publish notice of a time and place, when and where the parties will be heard, the commissioners cannot restrict the part es to written objections.

Where an assessment has been sent back to

The statute also required the com- N. Y. SUPREME COURT. GENERAL

missioners, after making their estimate and assessment, to publish a notice of the time and place, when and where the parties could be heard, and after hearing the parties, to proceed and complete their report to the Board of Trustees of the village. There was no published notice of a

agrees to convey to B., upon repayment the first contract was made and con

thereof, is in no sense invalid, illegal, or

against public policy. If there is no evidence of insolvency of B. at the time A. takes the deed, it is error to hold that the arrangement is a fraud upon B.'s creditors, of which A. can afterwards take advantage and refuse to convey, simply because there is evidence that years before, when the original contract for the purchase of the property was made, B. was so involved in debt that he did not want to hold property in his own name.

Appeal from judgment entered upon report of a referee dismissing plaintiff's complaint.

tinued in possession until near the time this action was commenced. The property is now worth about $2,500 or $3,000. It appears that at the time the original contract was made plaintiff was involved in debt, but it does not appear that he was so involved at the time the deed was taken by defendant. The action was tried by a referee, who held that the deed, as well as the original contract, was made for the purpose of protecting and concealing plaintiff's interest in the property from the claims of his creditors, and that plaintiff was not entitled to any relief.

Held, That the agreement between plaintiff and defendant was in no sense invalid, illegal, or against public policy. Carr v. Carr, 52 N. Y., 251; Stoddard v. Whiting, 46 N. Y., 627; Hodges v. Tenn. Ins. Co., 4 Seld., 416. Whatever may have been

Henry M. Bugbee, the father of plaintiff, made, at plaintiff's request and for his benefit, a contract for the purchase of certain real estate, and made payments thereon of money furnished by plaintiff. Afterwards this contract was given up and a new one, similar in terms, was executed in its place. Five years afterwards plaintiff and defendant agreed orally, with the consent of Henry M. Bug-plaintiff's situation prior to such deed bee, that defendant should take an assignment of the contract and hold it for the benefit of plaintiff, and the assignment was accordingly made. Some months afterwards a new oral agreement was made between plaintiff and defendant, under and by which defendant advanced, as a loan to plaintiff, the amount due on the contract, $150, and took a deed of the property in his own name as security for the payment thereof, and agreed, upon such payment, to convey the premises to plaintiff. Plaintiff has since tendered to defendant the $150 and interest, and demanded a deed, which defendant has refused to give, and this action is brought to compel a conveyance. Plaintiff entered into possession of the premises at the time

to defendant, that transaction was founded on the recognition of plaintiff's equitable title to this property, and his right to the legal title upon payment of the debt. There was no evidence of plaintiff's insolvency when the deed was given. Nor is it of moment that the plaintiff might not have been able to enforce the trust claimed to exist in his favor against the defendant as the apparent absolute owner of the contract. Whatever their rights were under the contract and before the deed, they were merged in the new contract arising out of the giving of the deed, and the new consideration moving thereto. Armstrong v. Toler, 11 Wheat., 258; Farkney v. Reynous, 4 Burr., 2069. The referee

erred, therefore, in finding that plain-dation of Holkins & York, and without any consideration moving between Layng and him. The note was then given by Holkins & York to the plaintiffs, in payment of the balance due on their note held by plaintiffs,

Judgment reversed and new trial and that note was given up. The acgranted.

Jesse B. Anthony et al., respts., v. Cosgrove, the indorser, upon a considRob't Layng, impl'd, &c., applt.