FIFTH DEPARTMENT, JUNE TERM, 1895. [Vol. 88. the parties to the contract being dead, claims made arising thereunder should be scrutinized with great care and should be rejected unless they are sustained by very clear, competent evidence. The plaintiff was permitted without objection to testify to personal transactions with the deceased. This evidence, it is claimed, tended to sustain his cause of action. This evidence would undoubtedly have been excluded had it been objected to, but, we think, giving full credit to it, it fails to satisfactorily sustain plaintiff's claim. It was fairly established upon the trial that the bill of sale mentioned was executed by the deceased by the suggestion and through the connivance of the plaintiff, with the intention of hindering and preventing the collection of a claim against him in favor of a Mr. Herron. An action had been commenced by Herron against the deceased just prior to the date of the bill of sale, and was then pending undetermined to collect a grocery bill the deceased owed him. The testimony of Mr. and Mrs. Hume as to conversations between the deceased and plaintiff at the time of the execution of the bill of sale, pretty clearly establish that it was given to cover up the property so as to prevent the collection of the grocery bill. There was evidence tending to show that the plaintiff was not in a condition financially, at the time the bill of sale was given, to loan Eastwood money to any amount. Mrs. Hume testified that shortly before its execution the plaintiff came to the deceased's house to live; that he was without means; that all that he had was a "piece pail" and a pair of overalls. Mr. Manchester testified that plaintiff did not have money enough to pay his fare to Hornellsville and that he furnished him a ticket. Michael Penston, a hotelkeeper, testified that the plaintiff was working for him about the hotel; that "he wasn't any good around the hotel tending bar, so I put him in the barn and he wasn't any good there, and after the fair I let him go; I paid him somewhere about $18 or $19 for labor." Plaintiff testified: "I have been confined in the jail at Warsaw and am not ashamed of it either; I refused to pay costs on an execution." The plaintiff and the deceased appear, from the evidence, to have had some real estate dealings. In the month of November, 1893, after the appointment of Mrs. Eastwood as administratrix, a settle Hun.] FIFTH DEPARTMENT, JUNE TERM, 1895. ment was had between the plaintiff and Eastwood's representatives, which resulted in a written agreement being executed, dated the 13th day of November, 1893, which recites that, "Whereas, divers disputes have arisen between the parties hereto, growing out of transaction* had between the party of the first part and Josiah K. Eastwood;" then follow some conditions as to the transfer of property between the parties, and then it states: "The parties of the second part (the administratrix and Frank C. Eastwood) agree to pay the interest on said Halstead mortgage and pay the first party (the plaintiff), $350; upon receipt of which $350 the party of the first part agrees to release and discharge said parties of the second part and the estate of said Josiah K. Eastwood, deceased, from all bills of sale, chattel mortgages, damages, bonds, notes and liabilities of every kind which he may have against said estate of Josiah K. Eastwood, deceased, or these parties individually, except an account of $296.85 which he claims against said estate, which is to be referred under the statute for disputed claims." The administratrix paid to the plaintiff this $350. It is stated in the record that it was admitted by the plaintiff that the bill of sale heretofore mentioned was canceled by this agreement. Notwithstanding this admission, the referee has found that it was not in fact canceled, but that there was due thereon from the estate to the plaintiff $250. Not much attention seems to have been paid to the rules of evidence upon the trial, resulting undoubtedly from the failure of the defendant's counsel to interpose proper objections. An examination of the case has satisfied us that the plaintiff's alleged claim is fictitious and without any merit, and that the judg ment appealed from should be reversed and a new trial had before another referee, with costs to abide the final award of costs. DWIGHT, P. J., and BRADLEY, J., concurred; WARD, J., not sitting. Judgment reversed and a new trial granted before another referee, costs to abide the event. * Sic. 88 164 154a 570 FIFTH DEPARTMENT, JUNE TERM, 1895. [Vol. 88. THE COUNTY OF MONROE, Appellant, . THE CITY OF ROCHESTER and SAMUEL B. WILLIAMS, as Treasurer of said City, Respondents. Street opening-— assessment of expense-power of the Supreme Court to correct the assessment in an action brought by the party assessed. Although the assessment against property, made by assessors appointed to assess the expenses arising out of the opening of a city street may be grossly unjust and unequal as compared with the assessment against other property taken for such street, yet, if it results simply from an error of judgment on the part of the assessors, the Supreme Court has no power to correct it in an action brought by the owner for that purpose. If, however, improper considerations enter into the minds of the assessors in making the assessment, or they adopt an erroneous rule or principle which results in great injustice to the property owner, the Supreme Court has power to correct the error. The error will be corrected in a case in which it is apparent that the assessors did not adopt any rule in making the assessment upon the property of such owner, but arbitrarily fixed the amount of the assessment without the exercise of their judgment. APPEAL by the plaintiff, The County of Monroe, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Monroe on the 28th day of November, 1894, upon the decision of the court rendered after a trial at the Monroe Equity Term dismissing the plaintiff's complaint. John Desmond, for the appellant. A. J. Rodenbeck, for the respondents. LEWIS, J.: The common council of the city of Rochester, in the year 1881, took proceedings for opening a street in that city, running east and west from State to Sophia streets, known as Church street. The common council duly designated the portion of the city deemed to be benefited by the laying out of the street, and ordered an assessment to be made upon the portion of the city so designated to pay the expenses of the improvement. The assessment was accordingly made, which was set aside by the Hun.] FIFTH DEPARTMENT, JUNE TERM, 1895. judgment of the Supreme Court because of irregularities of the assessors in making the assessment; a reassessment was thereafter made by the direction of the common council. The plaintiff, being the owner of a parcel of land which was assessed for said improvement, brought this action to vacate and set aside the assessment, because of various alleged errors and irregularities in the proceedings of the common council, and especially errors and irregularities of the assessors in making the assessment. The action was tried at the Monroe Special Term, and resulted in the dismissal of the plaintiff's complaint, and the plaintiff appealed from the judgment to this court. The trial court did not deem any of the alleged errors of sufficient importance to justify setting the assessment aside. Many errors and irregularities in the proceedings and determinations of the assessors were charged in the complaint and litigated upon the trial. We agree with the conclusions of the trial court with one exception. We find, from an examination of the case, evidence of such a gross and excessive assessment of the plaintiff's property as compared with the assessment of the other property assessed, that our minds are led to the conclusion that there must have been some inexcusable error committed by the assessors in making the assessment, and a perusal of the testimony of Mr. Munn, one of the persons who made the assessment, and the only one of the assessors who was interrogated as to the rule or principle adopted in making it, strengthens and confirms the impressions made by the examination of the other evidence in the case. Plaintiff's property consists of a lot fronting upon the southerly side of West Main street; it is bounded on the west by Fitzhugh street, on the east by Irving place, and on the south by property of the city; it is 140.08 feet in width, and 264 feet in depth, and was proven to be worth about $250,000 at the time of the trial. At the time the assessment was made the evidence tends to show that it was worth about $150,000, and at this same time there was upon the lot an old court house, which has since been torn down and a new court house is being constructed thereon. The sum directed to be reassessed upon all the property in the district, for the improvement, was $185,000; of this sum the plaintiff's property was assessed $16,082.40. The property directly east of plaintiff's lot, on the other side of FIFTH DEPARTMENT, JUNE TERM, 1895. [Vol. 88. Irving place, bounded upon the north by the southerly side of West Main street 165 feet, and on the west by Irving place, on the east by Exchange street and 325 feet in depth, which concededly was of much greater value than plaintiff's lot and an equal distance relatively from Church street, was assessed at only $8,827.12. A like inequality appears in the assessment upon the block adjoining the plaintiff's lot on the west across Fitzhugh street. Property across West Main street from plaintiff's lot, which fronts on Main street 162 feet and upon North Fitzhugh street 143 feet, and is occupied by the Powers Hotel and stores, which with its improvements was worth twice as much as plaintiff's lot, was assessed about $6,000. The property known as Powers Block upon the corner of West Main and State streets, with a frontage on West Main of 165 feet and 171 on State street, and the width of Main street nearer Church street than plaintiff's lot, and which was valued at more than $1,000,000, was assessed at a little more than $7,000. Many other instances of flagrant inequalities in the assessments appear in the case. Our attention has not been directed to another piece of property, in the entire district, which is assessed at anything like the amount of the plaintiff's assessment relatively. The assessments upon lots which, by the opening of Church street, were given a frontage upon that street appear to be almost nominal in amount compared with the assessment in question, while plaintiff's lot is 455 feet distant from Church street. He Mr. Munn was called as a witness and questioned as to the plan or rule adopted by the assessors in making the assessment. replied that it was a long time since the roll was made out, and that he could not state positively in regard to it. When asked to give some reason for the large assessment on plaintiff's property he said that they divided the property into grades and laid the assessments at amounts per foot for the different grades; that they took into account mainly the frontages the property had upon streets, and that in the case of the court house property they regarded the lot as having three frontages, one on Main, another on Fitzhugh and a third on Irving place, and when confronted with the fact that even then the amount of the assessment would not have been produced, he said that they might have arbitrarily made some additions to the frontages in the case of the plaintiff's lot. It is quite apparent |