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169; Killip v. Stettheimer, 75 N. to their inquiry, that he had conY., 282 ; Grimes v. Saunders, 93 cluded to decide in plaintiff's U. S., 55; Whittemore v. Farring favor on the ground of mistake. ton, 76 N. Y., 452, distinguished. Besides, defendant knew that

Appellant also insists there can there was mutual mistake, and he be no recovery because the trans- is supposed to know the law. action was an exchange in which Judgment affirmed, with costs. the intestate received what he bar- Opinion by Smith, P. J.; Har. gained for. The intestate did not din and Barker, JJ., concur. take the securities at his own risk, but took them as equivalent to $3,000 in money, relying upon de

HIGHWAYS. fendant's representations. Dis

N. Y. SUPREME COURT. GENERAL tinguishing this case from the one

TERM. SECOND DEPT. supposed by Comstock, J., in Des Arts v. Leggett, 16 N. Y., 582, Hiram Clark, applt., v. Sidney 589, and bringing it within the Stillman et al., com'rs, respts. rule laid down in 2 Barb., 480. See

Decided Sept., 1883. 43 N. Y., 159 ; 2 Caines, 117; 11 Wend., 1; 16 N. Y., 595.

The statute of 1881, Chap. 696, does not reThe position that the mistake quire a certificate of the first twelve names

drawn. was as to an extrinsic fact, i. e.,

If by oversight or inadvertence the names of B.'s inability to pay, cannot be

persons interested in the land, or of kin to maintained.

the owner, are deposited in the box and Dambmann v. Schulting, 75 N. drawn, they cannot be included in the cer

lificate, Y., 55, distinguished.

There was no laches on the in- Appeal from judgment in lavor testate's part. He promptly of defendants. offered to rescind on learning that Action to restrain the highway the securities were worthless, and commissioners from opening a road on being refused he promptly over plaintiff's land. It appeared brought suit.

Defendant com- that, in 1882, proceedings were inplains that he, being satisfied that stituted for the laying out and plaintiff could not recover on the opening of a new highway over the ground of fraud, suffered the prop- land of plaintiff only, and the erty to be sold under a prior mort. commissioner of highways had the gage before plaintiff moved to right to open and lay out the road amend his complaint. But the by proceeding within the statutes. affidavits read on defendant's part' All went regular to the drawing in opposition to the motion to of the jury of freeholders to ceramend show that shortly prior to tify the necessity of the improvethe mortgage sale defendant's at : ment. torney, and also his son who acted D. W. Guernsey, for applt. in defendant's behalf, had been E. W. Simmons, for respt. informed by the referee, in reply Held, That it is very donbtful


the peace.

whether the action could be main- Opinion by Dykman, J.; Pratt, tained under such circumstances. concurs. 24 N. Y., 345.

When the jury was drawn, pursuant to Chap. 696, Laws of 1881,

NEGLIGENCE. HATCHWAY. plaintiff was present, with one of N. Y. SUPERIOR COURT. GENERAL the commissioners and a justice of

TERM. The names of four persons were drawn who were of Archer Oysterbank, applt., v. kin to plaintiff, and they were not William Gardner et al., respts. included in the clerk's certificate,

Decided June 2, 1883. but were left out by consent of all parties. The names of two others Plaintiff, who was nearly blind, turned from were objected to by plaintiff and the street upon which he was walking, the commissioner respectively, and

supposing he had reached a certain eating

house, and, by mistake, went up steps be. were left out by consent.

longing to defendants' warehouse, through Plaintiff now claims that the

a doorway, and fell into a hatchway close names of twelve persons should to the door. Held, That the burden of have been drawn and a certificate

proof was on plaintiff to show that the apmade of such names.

pearance of the doorway was like that used

for the entrance of persons in order to estabHeld, Untenable. In the first

lish an implied invitation to enter ; that place, the statute does not require plaintiff's defective vision did not affect dea certificate of the first twelve fendants' liability, and that the case does

not come within the rule permitting a renames drawn, and although the

covery by a person who, proceeding on the names of persons interested in the

highway with ordinary care, inadvertently land, or of kin to the land owner, steps from it into an excavation made by deare not to be deposited in the box

fendants near it that such an occurrence in the first instance, yet if, by

might reasonably be expected. oversight or inadvertence, such Appeal by plaintiff from judgnames should be so deposited, ment dismissing complaint. they would be incompetent, and Action for damages for neglicould not be included in the cer- gence. Plaintiff was a seller of tificate. Any other construction newspapers.

He walked along would permit disqualified persons Mott street, intending to go into to sit on the jury. In the next an eating-house on that street. place, plaintiff assented to all that His sight was imperfect. When was done, and so waived all objec- he had gone near the eating-house, tion. It is true, as contended, about nine feet from it, thinking that assent cannot confer jurisdic- that he had reached it, he turned tion on the commissioners, but and went up steps that, in fact, plaintiff, being alone interested in belonged to defendants' warethe land, could waive objections, house. He proceeded through the and consent to the jury as made doorway, and fell into and through op and constituted, as he did. a hatch way that was close to the Judgment affirmed, with costs. door. The footstep leading to

Vol. 18.–No. 10b.

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.

Judgment affirmed, with costs. Peet & Fuller, for applt.

Opinion by Sedgwick, Ch. J.; Thornton, Earl & Keindl, for Ingraham, J., concurs. respts. Held, No error. The burden

CRIMINAL LAW. 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

TERM. FIRST DEPT. make and maintain the hatch way in their own building. It was an

The People, respts., v. Edward ordinary and well-known kind of Kelly, applt. appliance to the management of Decided Dec. 23, 1883. business. The defendants had a

After defendant's conviction of a felonious right to suppose that anyone en

assault a motion was made in arrest of tering their store would expect to judgment, upon the ground, appearing by find the hatchway in the place affidavit, that during the prisoner's absence, where it was. They were bound

and while the jury was deliberating, a

written communication was sent by one of to use due care to protect from

the jurors to the justice who had presided the risk of falling through it at the trial, and a written communication anyone who should come into that sent back by the justice to the jury. The

motion was denied. What the communipart of the building by their in

cation was did not appear, whether or not vitation, express or implied ; but

it related to the case, and notliing appeared the mere fact that there are doors

with respect to it in the case as settled. leading to the hatchways does not Ileld, That in the absence of any proof or give an invitation to enter, unless

circumstance showing otherwise, this Court

will not presume that the communication the appearance of the door and

related to the case, the motion having been doorway is like those generally denied, or was improper or prejudicial to used for the entrance of persons, the prisoner. Error will not be presumed, and this must be proved and can

but must be shown. The facts disclosed

do not warrant a reversal of the judgment. not be assumed. Plaintiff's blind. ness did not increase or lessen the Appeal from a judgment of the duty of defendants in the matter Court of General Sessions of the in view.

City and County of New York, Further held, That this case is convicting the defendant of an asnot within the rule that permite a sault with intent to kill. recovery by a person who, pro- After the verdict a motion was for respt.

made in arrest of judgment, on We cannot presume that the the ground, among others, that communication was improper or after the jury had retired and were prejudicial to the prisoner. This deliberating, one of the jurors, in court is required to presume that the absence of the prisoner, sent a the justice presiding in the court written communication to the jus- below did all that his official duty tice who presided at the trial, and required him to do, and in no way a written communication was sent violated his duties. The fact that back to the juror. What the com- the communication did not relate munication was did not appear. to the case may be inferred from Whether it related to the case or a denial of the motion. Error cannot did not appear. Nothing ap. not be presumed, but must be peared with respect to it in the shown. In the cases cited, 43 N. case as settled, and the Court de. Y., 1; 13 Johns., 487; 51 How., nied the motion in arrest of judg- | 469; 1 Pick., 337; 3 Minn., 262, ment.

except the last, it appeared that John H. McKinley, for applt. the communication was concerning John Vincent, Ass't Dist.-Att’y, the case, The case 3 Minn., 262,

has been doubted and its proHeld, That $8 467 or 331 do not priety questioned by a distinseem to authorize a motion in ar- guished and reliable author. 1 rest of judgment for such a cause. Bishop, 2d ed., $ 1000. There is The motion was not based upon nothing to show probable injury anything appearing by the indict- to the prisoner. 12 Pick., 496 ; 23 ment or in the record of the pro- Ind., 83 ; 22 id., 165. This rule, ceedings in the case. Regarded as requiring that probable prejudice a motion for a new trial, it does not to the party complaining should seem to fall within any of the appear from the error complained causes specified in $ 465 of the of, is made applicable to motions Code of Criminal Procedure, spec

for new trials. Code Crim. Pro., ifying the grounds upon which $ 465. such a motion may be made. But, Judgment affirmed. assuming that the point was prop- Opinion by Daniels, J.; Davis, erly taken, it does not appear P. J., concurs ; · Brady, J., diswhether the communication rela- sents. ted to the case, the trial, the convenience or physical wants of the

TAX SALES. jury. There is no intimation that

N. Y. SUPREME COURT. GENERAL it related to the case under consid

TERM. SECOND DEPT. eration. If a statement had been inserted in the case, as should have

Abraham Lott, respt., v. Aaron been done, an opportunity would A. Degraw, applt. have then been afforded to the re- Decided Sept., 1883. corder to have made an explana- Leases given on tax sales in Queens Co. are tion.

prima facie evidence that the tax was legal

ly imposed, and that the proceedings and presumption of regularity apsale were regular, and this includes the plies to the assessment and impoassessment of the land. The party assailing such lease has the burden of proof.

sition of the taxes, all the subse

quent proceedings leading to the Appeal from judgment in favor sale and the sale itself. The due of plaintiff.

execution of the lease and of the Action of ejectment for land in power of the officer to divest the Queens Co., partly in Jamaica and title is made out by intendment of partly in Flushing. Plaintiff was law, and it is not necessary in the the owner in 1873. Defendant first instance to show that the claims title under two tax leases steps made essential by statute in from the treasurer of Queens Co., the imposition of the tax have one for the Jamaica property, been taken. Any other construcdated Aug. 24, 1878, on a sale in tion would defeat the manifest in1875 for taxes of 1873, and one for tention of the Legislature in the the Flushing property, dated Jan.

enactment of this law. The courts 16, 1881, on a sale in 1879 for taxes

before that had construed preof 1877. These taxes were never vious similar statutes with great paid.

severity and strictness, and had The leases contain recitals of all held that due execution of the the official action rendered neces

power to sell for taxes must be sary by the statutes under which

shown step by step, 4 Hill, 76 ; 2 the sales were made. Plaintiff

Den., 329; 59 N. Y., 280; that did not attempt to show any irreg. sales for non-payment of taxes ularity in the proceedings, but

were in derogation of the common claimed that the presumption that law to divest the title of the owner the tax was regularly imposed did and that no presumption would not apply to the action of the be indulged in favor of their reguassessors, which was preliminary larity. It was necessary to collect thereto.

taxes for the support of governArmstrong & Fosdick, for applt. ment, and experience had shown D. P. Barnard, for respt.

that their payment was evaded Held, Untenable ; that this view and their collection retarded by is too narrow and contracted ; that reason of the uncertainty of the the statute relating to the sale of title received by purchasers at tax lands in Queens Co. for taxes sales. More than all, it was known makes the lease prima facie evi- that they assumed the burden of dence that the tax was legally proving the regularity of the proimposed, and that the proceedings ceedings. This, in most cases, was and sale were regular. Laws of difficult, and discouraged bidding 1818 Chap. 226, 8 18. The pro- at such sales, and the object of ceedings intended are all the pro- this law was to shift the burden ceedings leading up to the sale of proof from the purchaser to the after the taxes are imposed by the

The latter can in all cases Board of Supervisors, so that the avoid the burden by payment of


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