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169; Killip v. Stettheimer, 75 N. Y., 282; Grimes v. Saunders, 93 U. S., 55; Whittemore v. Farring ton, 76 N. Y., 452, distinguished.

Appellant also insists there can be no recovery because the transaction was an exchange in which the intestate received what he bargained for. The intestate did not take the securities at his own risk, but took them as equivalent to $3,000 in money, relying upon defendant's representations. Distinguishing this case from the one supposed by Comstock, J., in Des Arts v. Leggett, 16 N. Y., 582, 589, and bringing it within the rule laid down in 2 Barb., 480. See 43 N. Y., 159; 2 Caines, 117; 11 Wend., 1; 16 N. Y., 595.

The position that the mistake was as to an extrinsic fact, i. e., B.'s inability to pay, cannot be maintained.

Dambmann v. Schulting, 75 N. Y., 55, distinguished.

There was no laches on the in

testate's part. He promptly offered to rescind on learning that the securities were worthless, and on being refused he promptly brought suit. Defendant complains that he, being satisfied that plaintiff could not recover on the ground of fraud, suffered the property to be sold under a prior mortgage before plaintiff moved to amend his complaint. But the affidavits read on defendant's part in opposition to the motion to amend show that shortly prior to the mortgage sale defendant's attorney, and also his son who acted in defendant's behalf, had been informed by the referee, in reply

to their inquiry, that he had concluded to decide in plaintiff's favor on the ground of mistake. Besides, defendant knew knew that there was mutual mistake, and he is supposed to know the law.

Judgment affirmed, with costs. Opinion by Smith, P. J.; Hardin and Barker, JJ., concur.



Hiram Clark, applt., v. Sidney Stillman et al., com'rs, respts.

Decided Sept., 1883.

The statute of 1881, Chap. 696, does not require a certificate of the first twelve names drawn.

If by oversight or inadvertence the names of persons interested in the land, or of kin to the owner, are deposited in the box and drawn, they cannot be included in the certificate.

Appeal from judgment in favor of defendants.

Action to restrain the highway commissioners from opening a road over plaintiff's land. It appeared that, in 1882, proceedings were instituted for the laying out and opening of a new highway over the land of plaintiff only, and the commissioner of highways had the right to open and lay out the road by proceeding within the statutes. All went regular to the drawing of the jury of freeholders to certify the necessity of the improve


D. W. Guernsey, for applt.
E. W. Simmons, for respt.
Held, That it is very doubtful

whether the action could be maintained under such circumstances. 24 N. Y.. 345.

When the jury was drawn, pursuant to Chap. 696, Laws of 1881, plaintiff was present, with one of the commissioners and a justice of the peace. The names of four persons were drawn who were of kin to plaintiff, and they were not included in the clerk's certificate, but were left out by consent of all parties. The names of two others were objected to by plaintiff and the commissioner respectively, and were left out by consent.

Plaintiff now claims that the names of twelve persons should have been drawn and a certificate. made of such names.

Held, Untenable. In the first place, the statute does not require a certificate of the first twelve names drawn, and although the names of persons interested in the land, or of kin to the land owner, are not to be deposited in the box in the first instance, yet if, by oversight or inadvertence, such names should be so deposited, they would be incompetent, and could not be included in the certificate. Any other construction would permit disqualified persons to sit on the jury. In the next place, plaintiff assented to all that was done, and so waived all objection. It is true, as contended, that assent cannot confer jurisdiction on the commissioners, but plaintiff, being alone interested in the land, could waive objections, and consent to the jury as made up and constituted, as he did. Judgment affirmed, with costs.

Vol. 18.-No. 10b.

Opinion by Dykman, J.; Pratt, J., concurs.




Archer Oysterbank, applt., v. William Gardner et al., respts.

Decided June 2, 1883.

Plaintiff, who was nearly blind, turned from the street upon which he was walking, supposing he had reached a certain eatinghouse, and, by mistake, went up steps be. longing to defendants' warehouse, through a doorway, and fell into a hatchway close to the door. Held, That the burden of proof was on plaintiff to show that the appearance of the doorway was like that used for the entrance of persons in order to establish an implied invitation to enter; that plaintiff's defective vision did not affect defendants' liability, and that the case does not come within the rule permitting a recovery by a person who, proceeding on the highway with ordinary care, inadvertently steps from it into an excavation made by defendants so near it that such an occurrence might reasonably be expected.

Appeal by plaintiff from judgment dismissing complaint.

Action for damages for negligence. Plaintiff was a seller of newspapers. He walked along Mott street, intending to go into an eating-house on that street. His sight was imperfect. When he had gone near the eating-house, about nine feet from it, thinking that he had reached it, he turned and went up steps that, in fact, belonged to defendants' warehouse. He proceeded through the doorway, and fell into and through a hatchway that was close to the door. The footstep leading to

the doorway was eight feet distant | ceeding on the highway with orfrom the curb. There were two dinary care, inadvertently steps steps up, then a flat stone about from it into an excavation made by four feet wide, and then one other defendants so near the highway step to the doorway. The hatch- that the latter might reasonably way was close to the door. There anticipate such an occurrence. was no proof of what the appear. The departure by plaintiff from ance of the door and doorway was. the street was intentional, and it Upon these facts the complaint was his purpose to enter a house. was dismissed.

Peet&Fuller, for applt.

Judgment affirmed, with costs.
Opinion by Sedgwick, Ch. J.;

Thornton, Earl & Keindl, for Ingraham, J., concurs.


Held, No error. The burden of proof was upon plaintiff to show


negligence on the part of defend- N. Y. SUPREME COURT. GENERAL


ants. They had the legal right to make and maintain the hatchway in their own building. It was an ordinary and well-known kind of appliance to the management of business. The defendants had a right to suppose that anyone entering their store would expect to find the hatchway in the place where it was. They were bound to use due care to protect from the risk of falling through it anyone who should come into that part of the building by their invitation, express or implied; but the mere fact that there are doors leading to the hatchways does not give an invitation to enter, unless the appearance of the door and doorway is like those generally used for the entrance of persons, and this must be proved and cannot be assumed. Plaintiff's blind. ness did not increase or lessen the duty of defendants in the matter in view.

Further held, That this case is not within the rule that permits a recovery by a person who, pro

The People, respts., v. Edward Kelly, applt.

Decided Dec. 23, 1883.

After defendant's conviction of a felonious assault a motion was made in arrest of judgment, upon the ground, appearing by affidavit, that during the prisoner's absence, and while the jury was deliberating, a written communication was sent by one of the jurors to the justice who had presided at the trial, and a written communication sent back by the justice to the jury. The motion was denied. What the communication was did not appear, whether or not it related to the case, and nothing appeared with respect to it in the case as settled. Held, That in the absence of any proof or circumstance showing otherwise, this Court will not presume that the communication related to the case, the motion having been denied, or was improper or prejudicial to the prisoner. Error will not be presumed, but must be shown. The facts disclosed do not warrant a reversal of the judgment.

Appeal from a judgment of the Court of General Sessions of the City and County of New York, convicting the defendant of an assault with intent to kill.

After the verdict a motion was

the ground, among others, that after the jury had retired and were deliberating, one of the jurors, in the absence of the prisoner, sent a written communication to the justice who presided at the trial, and a written communication was sent back to the juror. What the communication was did not appear. Whether it related to the case or not did not appear. Nothing ap peared with respect to it in the case as settled, and the Court denied the motion in arrest of judg


made in arrest of judgment, on We cannot presume that the communication was improper or prejudicial to the prisoner. This court is required to presume that the justice presiding in the court below did all that his official duty required him to do, and in no way violated his duties. The fact that the communication did not relate to the case may be inferred from a denial of the motion. Error cannot be presumed, but must be shown. In the cases cited, 43 N. Y., 1; 13 Johns., 487: 51 How., 469; 1 Pick., 337; 3 Minn., 262, except the last, it appeared that the communication was concerning the case. The case 3 Minn., 262, has been doubted and its propriety questioned by a distinguished and reliable author. 1 Bishop, 2d ed., § 1000. There is nothing to show probable injury to the prisoner. 12 Pick., 496; 23 Ind., 83; 22 id., 165. This rule, requiring that probable prejudice to the party complaining should appear from the error complained of, is made applicable to motions for new trials. Code Crim. Pro., $465.

John H. McKinley, for applt. John Vincent, Ass't Dist.-Att'y, for respt.

Held, That § 467 or 331 do not seem to authorize a motion in arrest of judgment for such a cause. The motion was not based upon anything appearing by the indictment or in the record of the proceedings in the case. Regarded as a motion for a new trial, it does not seem to fall within any of the causes specified in § 465 of the Code of Criminal Procedure, specifying the grounds upon which such a motion may be made. But, assuming that the point was properly taken, it does not appear whether the communication related to the case, the trial, the convenience or physical wants of the


jury. There is no intimation that N. Y. SUPREME COURT. GENERAL


it related to the case under consideration. If a statement had been inserted in the case, as should have been done, an opportunity would have then been afforded to the recorder to have made an explana


Judgment affirmed.

Opinion by Daniels, J.; Davis, P. J., concurs; .Brady, J., dissents.

Abraham Lott, respt., v. Aaron A. Degraw, applt.

Decided Sept., 1883.

Leases given on tax sales in Queens Co. are prima facie evidence that the tax was legal

ly imposed, and that the proceedings and sale were regular, and this includes the

assessment of the land. The party assailing such lease has the burden of proof.

Appeal from judgment in favor of plaintiff.

Action of ejectment for land in Queens Co., partly in Jamaica and partly in Flushing. Plaintiff was the owner in 1873. Defendant claims title under two tax leases from the treasurer of Queens Co., one for the Jamaica property, dated Aug. 24, 1878, on a sale in 1875 for taxes of 1873, and one for the Flushing property, dated Jan. 16, 1881, on a sale in 1879 for taxes of 1877. These taxes were never paid.

The leases contain recitals of all the official action rendered necessary by the statutes under which

the sales were made. Plaintiff did not attempt to show any irreg ularity in the proceedings, but claimed that the presumption that the tax was regularly imposed did not apply to the action of the assessors, which was preliminary


Armstrong & Fosdick, for applt. D. P. Barnard, for respt. Held, Untenable; that this view is too narrow and contracted; that the statute relating to the sale of lands in Queens Co. for taxes makes the lease prima facie evidence that the tax was legally imposed, and that the proceedings and sale were regular. Laws of 1818, Chap. 226, § 18. The proceedings intended are all the proceedings leading up to the sale after the taxes are imposed by the Board of Supervisors, so that the

presumption of regularity applies to the assessment and imposition of the taxes, all the subsequent proceedings leading to the sale and the sale itself. The due execution of the lease and of the

power of the officer to divest the title is made out by intendment of law, and it is not necessary in the

first instance to show that the

steps made essential by statute in the imposition of the tax have been taken. Any other construction would defeat the manifest intention of the Legislature in the enactment of this law. The courts before that had before that had construed previous similar statutes with great severity and strictness, and had held that due execution of the power to sell for taxes must be shown step by step, 4 Hill, 76 ; 2 Den., 329; 59 N. Y., 280; that sales for non-payment of taxes

were in derogation of the common law to divest the title of the owner and that no presumption would be indulged in favor of their regularity. It was necessary to collect taxes for the support of government, and experience had shown that their payment was evaded and their collection retarded by reason of the uncertainty of the title received by purchasers at tax sales. More than all, it was known that they assumed the burden of proving the regularity of the proceedings. This, in most cases, was difficult, and discouraged bidding at such sales, and the object of this law was to shift the burden of proof from the purchaser to the owner. The latter can in all cases avoid the burden by payment of

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