* * *

ben

awarded for the land taken, with interest thereon, and all costs and expenses of the proceeding, "shall be borne and paid three-fourths. thereof by the mayor, aldermen and commonalty of the city of New York and the remaining one-fourth by the parties efited by such improvement," and directs that the commissioners "shall assess to the extent of one-third of the amount of said awards, interest, costs and expenses upon all such parties * as they may deem to be benefited by such improvement." Section 5 relates to the construction and maintenance of the park, and the raising of the necessary funds for that purpose.

*

It will be observed that the only provision in the act from which it can possibly be urged that any notice was to be given is the portion of the second section above quoted, and this relates to acquiring the title, and not to making an assessment for benefits. This provision refers to existing local statutes in order to indicate the procedure necessary to be taken for the acquisition of the land. The provisions of the local statutes as to acquiring title were thus incorporated in the act (Choate v. City of Buffalo, 39 App. Div. 379, 57 N. Y. Supp. 383, affirmed in 167 N. Y. 597, 60 N. E. 1108), but nothing was incorporated as to the assessments for benefits. The authority and proceedings to be taken to acquire the title are contained in the first, second, and third sections of the act. The fourth section, in so far as it relates to assessment for benefits, deals with an entirely new subject, and one in no way related to and not necessarily having any connection with the subject of acquiring the title. The duty of the commissioners in relation to the acquisition of the land required for the park was entirely distinct from their duty of levying an assessment for benefits (Matter of the Mayor, 46 App. Div. 52, 61 N. Y. Supp. 437), nor did the acquisition of the title require an assessment for benefits. The case, in principle, cannot be distinguished from Stuart v. Palmer, 74 N. Y. 183, 30 Am. Rep. 289. It was there said that:

"The Constitution sanctions no law imposing such an assessment without a notice to and a hearing, or an opportunity of a hearing, by the owners of the property to be assessed. It is not enough that the owners may by chance have notice, or that they may, as a matter of favor, have a hearing. The law must require notice to them, and give them the right to a hearing and an opportunity to be heard. It matters not, upon the question of the constitutionality of such a law, that the assessment has in fact been fairly apportioned. The constitutional validity of law is to be decided, not by what has been done under it, but by what may by its authority be done. The Legislature may prescribe the kind of notice and the mode in which it shall be given, but it cannot dispense with all notice."

This case was followed and cited with approval in Remsen v. Wheeler, 105 N. Y. 573, 12 N. E. 564, the court saying:

"The lot owners were entitled at some stage of the proceedings to a notice. and an opportunity to be heard, and, unless the law gave them the right to notice and an opportunity to be heard before the board which was authorized to impose the assessment, it was unconstitutional and void, for the reason stated in Stuart v. Palmer, 74 N. Y. 183 [30 Am. Rep. 289]."

It was also followed in McLaughlin v. Miller, 124 N. Y. 511, 26 N. E. 1104; Matter of Trustees of Union College, 129 N. Y. 308, 29 N.. E. 460.

and 123 New York State Reporter

For these reasons I think the order, in so far as appealed from, should be affirmed, with $10 costs and disbursements.

INGRAHAM, J., concurs.

NEW YORK SECURITY & TRUST CO. et al. v. SHOENBERG et al. (Supreme Court, Appellate Division, First Department. June 29, 1904.) 1. MORTGAGES-FORECLOSURE COMPROMISE AGREEMENT-SETTING ASIDE AGREE

MENT.

In mortgage foreclosure, all those having an interest were joined, save an infant contingent remainderman, and, after issue joined, the parties made a compromise agreement whereby foreclosure was to be had for a less sum than was claimed to be due, and a judgment was so entered. There being a doubt about the marketability of the title, it was advertised for sale, subject to contingent rights. The remaindermen moved for an order that the premises be sold clear of incumbrances, or the agreement set aside, and the action restored for trial. Plaintiff opposed the motion, but the premises were ordered to be sold clear of incumbrances. Thereafter it was adjudicated that the purchaser could not obtain a marketable title, owing to the interests of the infant, and plaintiff then obtained an order vacating the agreement. Held, on appeal from such order by the remaindermen, that the infant should be brought in and have his rights determined on all the facts, and that, under the circumstances, the order should be affirmed after modification, providing for payment of costs by plaintiff subsequent to the answer.

Appeal from Special Term, New York County.

Suit by the New York Security & Trust Company, as substituted trustees, etc., and another, against Rosalie Shoenberg and others. From an order vacating a compromise agreement, and a judgment of foreclosure and sale based thereon, Rosalie Shoenberg and others appeal. Modified and affirmed.

See 84 N. Y. Supp. 359.

Argued before VAN BRUNT, P. J., and McLAUGHLIN, PATTERSON, INGRAHAM, and LAUGHLIN, JJ.

Harold Nathan, for appellants.

Charles B. Samuels, for respondents.

LAUGHLIN, J. This is an action to foreclose a mortgage for $12,000 given in 1892, and, in the event that it shall be deemed invalid as a lien upon certain estates in remainder which were intended to be covered thereby, to establish an equitable lien in favor of the plaintiffs for a like amount by restoring certain liens discharged by moneys advanced by the mortgagee, and by subrogating the plaintiffs to the rights of the owners and holders of such liens. After issue was joined in the action, the remaindermen-who were all of age then, denied the validity of the mortgage as a lien upon their interests-and the plaintiffs entered into a stipulation by which the plaintiffs were to have a judgment of foreclosure, declaring the mortgage a valid lien as against all the defendants for $10,000, without interest. This was about $3,000 less than the indebtedness secured by the mortgage and interest. The compromise agreement also embraced a mortgage for

$18,000 upon other lands owned by the same parties, and given at the same time and under like circumstances. It was reduced to $14,000, without interest. The case came on for trial, the stipulation was read in lieu of other evidence, and judgment was entered in accordance therewith. It was expected that the remaindermen would be able to raise the money to satisfy the mortgages, and, with that end in view, it was provided in the agreement that the sales should not be advertised until after the expiration of 90 days, within which period the plaintiffs were to accept the amount of the mortgages as thus reduced in full satisfaction thereof. It was believed by all the parties and their counsel that good title could be given under the foreclosure judgments. The remaindermen endeavored to obtain a loan upon the mortgaged property, with a view to paying off the mortgages. Objection to the title was made by certain title companies upon the ground that a contingent remainderman, the infant son of the defendant Jeffress, was not joined as a party defendant, and the remaindermen were unsuccessful in their efforts to obtain a loan. This alleged defect of title was brought to the attention of counsel for the plaintiffs, who subsequently caused a notice of sale under the foreclosure judgment to be published, setting forth that the premises would be sold "subject to the contingent rights or claims, if any there be, not barred by the judgment herein, in favor of any persons, born or unborn, not parties to this action, claiming as heirs of Joseph Rosenfield, deceased, or as devisees under his will." Counsel for the remaindermen thereupon moved for an order directing the referee to discontinue the publication of this clause in the notice of sale, and to sell the premises free and clear of incumbrances, and, in the event that this could not be done, that the compromise agreement be set aside, and the decision and judgment vacated, and the action restored to the calendar for trial upon the issues presented by the pleadings. The plaintiffs opposed this motion-especially the alternative relief asked. The court directed that the referee omit the objectionable clause from the notice of sale, and that the sale be made free and clear of incumbrances. The North River Savings Bank, owning adjacent lands, was desirous of acquiring these premises. Prior to the sale its counsel conferred with counsel for the plaintiffs with reference to this alleged defect in the title, and made suggestions concerning the steps that should be taken to cure the defect. Upon the sale the property was struck off to the North River Savings Bank for the sum of $46,300, but it subsequently refused to take title upon the ground, among others, that this infant was not made a party defendant. The plaintiffs then moved to compel the bank to complete its purchase. The motion was granted at Special Term, but the order was reversed by this court upon the ground that, on account of the omission to make the infant contingent remainderman a party, the title was not marketable, and the reversal was affirmed by the Court of Appeals. New York Security & Trust Company v. Schoenberg, 87 App. Div. 262, 84 N. Y. Supp. 359, affirmed in 177 N. Y. 556, 69 N. E. 1128. The plaintiff then moved for an order vacating the compromise agreement, and the decision and judgment based thereon. This motion. was granted, and the remaindermen appeal from the order.

and 123 New York State Reporter

The contention of the appellants is that the object of the compromise agreement may still be attained by bringing in the infant as a party defendant, and that, the plaintiffs having objected to the relief they now ask, the appellants sought it, and, having persisted in proceeding with the action, such relief should not be awarded now on their application, especially since, for the reasons stated, it is unnecessary. These objections are not without merit. The difficulty, however, is that, while we see no obstacle to bringing in the contingent remainderman, yet we cannot say that even, if he should be brought in, the facts and circumstances would warrant or require that the guardian ad litem be authorized to enter into the compromise agreement in behalf of the infant. That would require a consideration of the facts at issue, and a forecast of the probabilities of the result of the litigation if continued. Other complications affecting the marketability of the title might arise if such course should be taken. We are therefore of opinion that it would be better to allow the infant to be brought in, and have his rights determined by an adjudication upon a consideration of all the facts, rather than by negotiations for a settlement with the approval of the court. In this view, the fruits of the compromise agreement cannot be fully realized. It appears to have been entered into owing to a mutual mistake or misconception of the rights of the parties, and we are of opinion that it should be vacated. The decision and judgment, of course, fall with it. The order was granted without terms. This is unjust to the appellants, who were willing and anxious that this very relief might be decreed as soon as this defect of title was brought to their attention.

The order should therefore be modified by providing that it is granted upon payment by the plaintiffs of $10 costs, and of all taxable costs of the action subsequent to the service of the answer to date, and, as thus modified, affirmed, with disbursements of the appeal to the appellants. All concur.

WEINHANDLER v. EASTERN BREWING CO. et al.

(Supreme Court, Appellate Term. June 23, 1904.)

1. LANDLORD AND TENANT-DISPOSSESSION-PROCEEDINGS-POSSESSION. In a proceeding to dispossess defendant as a tenant holding over, the evidence considered, and held to show that defendant was in possession of the premises under a lease made by plaintiff to a third person. 2. SAME ASSIGNMENT OF LEASE-PRESUMPTIONS.

Where a person other than the lessee is shown to be in possession of leasehold premises, the law presumes that the lease has been assigned to him, and that the assignment was sufficient to transfer the term and satisfy the statute of frauds.

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

Summary proceedings by Solomon Weinhandler, landlord, against the Eastern Brewing Company and others. From a final order in favor of defendants, plaintiff appeals. Reversed.

See 85 N. Y. Supp. 354.

JJ.

Argued before FREEDMAN, P. J., and MacLEAN and SCOTT,

Sampson H. Weinhandler, for appellant.

Jay C. Guggenheimer, for respondent.

PER CURIAM. Upon a reconsideration of this case we are of the opinion that it was erroneously decided below, in that the justice felt himself constrained, under the opinion of this court on the prior appeal, to grant a final order to the tenants, whereas the new testimony adduced on the second trial was sufficient to supply the defect pointed out in our former opinion. The ruling, however, may be explained if the new testimony, consisting chiefly of documents, and its effects under the authorities, was not called to the justice's attention any better than it was to ours on the first argument of this appeal. The single question in the case is whether the defendant the Eastern Brewing Company was in possession of the premises involved in this action under the lease made by the plaintiff to one Horan, or whether it was merely a tenant at will or sufferance. In the former case, the present proceedings were properly brought; in the latter, the statutory notice was required to terminate the tenancy. Weinhaner v. Eastern Brew. Co. (Sup.) 85 N. Y. Supp. 354. On the first trial neither landlord nor tenant busied themselves much with the devolution of the original lease to Horan made in May, 1893, for 10 years, and the rights and liabilities of the parties thereunder. The defense then relied on substantially conceded the possession under the lease, but resisted dispossession on the plea of an oral promise to grant a lease for another year. This was the sole issue submitted to the jury, and was promptly resolved against the defendants. On appeal we held that it was still open to defendants to question the devolution of title, that the plaintiff's proof went no further than establishing the conventional relation of landlord and tenant by the receipt of rent, and that to save these proceedings he must connect the defendants' possession with the Horan lease. We are of the opinion that this has been done both as a matter of fact and law.

By various mesne assignments, with which we need not now concern ourselves, the Horan lease came into the possession of the Colonial Brewery. Up to that point there can be no question but that possession was under the lease. At the first trial an assignment of the lease by the Colonial Brewery was shown, without. tracing title back to it. At the second trial a reassignment was. shown by the assignee to the Colonial Brewery Company, together with a lease to another party of a portion of the premises made some time thereafter, and which is only consistent with possession under the lease.

The assets of the Colonial Brewery were sold in bankruptcy under a bill of sale, in evidence on the second trial, to the defendants Katz and Stein, who at the time and since were, and have been respectively, the president and the secretary and treasurer of the defendant brewing company. This bill of sale, while not in words specifying the Horan lease, unquestionably conveys it, if title there

89 N.Y.S.-2