The act of 1866-chap. 367, § 1-made it the duty of the commissioners of Central park to lay out and establish the grade of an avenue to be called St. Nicholas, empowered them to extend and widen Manhattan street, and whenever they should deem it necessary, "fix and establish, or change the grade of any street or avenue, or any part of any street or avenue, that intersects any street, road or avenue required by law to be laid out, established, regulated or improved by them, or under their direction."

They were also directed -§ 3 of same act to make and file maps of surveys of the avenue and of the widening and extension of Manhattan street, showing its width, location and grade. Section 4 makes these maps and surveys final and conclusive in respect to the matters referred to, "as well in respect to the mayor, aldermen and commonalty of the city of New York, as in respect to the owners and occupants" of lands affected thereby, and "in respect to all persons whomsoever." Section 7 of the same act declares that "the said commissioners of the Central park shall with respect to the avenue to be laid out by them, as required by this act, and with respect to that portion of Seventh avenue lying north of the Central park in said city, and with respect to all streets, avenues, roads and portions of said city required by law to be laid out or improved, under the direction of the said commissioners, and the laying out, grading, regulating, sewering, paving and improving the same, possess all the power and perform all the duties now or heretofore possessed, enjoyed or exercised by such commissioners in respect to the Central park, in the said city, and by the mayor, aldermen and commonalty of the city of New York, and the several departments of the said city, in relation to the said streets, avenues and similar improvements thereof in other parts of said city," and enacts that "it shall be lawful for the said commissioners to do all the work required to be done by them, by day's work, or by contract, or in such manner as they shall deem expedient.' In Walter's case, supra, it appeared that the whole work on Manhattan street, including paving, for which the assessment in question was made, was covered by a single resolution of the department of public parks, passed on the 2d of May, 1871, for the regulating, grading, paving and improving Manhattan street from Twelfth avenue to Avenue St. Nicholas. That resolution was said to be "the acknowledged source of authority for the work," and it was all done under the direction of that department and its successor, the department of public works. Such is the case here. The resolution at the bottom of the proceedings is that of the commissioners referred to in the Walter case, and under it the work was done, partly by contract and partly by the day. It was completed by the department of public works, to which the powers of the Central park commissioners were transferred. Laws of 1870, chap. 383, § 16; Laws of 1872, chap. 872, § 7. The language of the act of 1866, above quoted, is so plain and comprehensive as to permit no other construction than that given to it by the commissioners. The power granted in respect to the improvement was exclusive of that of any other body, and the manner of doing it is left to their discretion. As to both matters

their authority was ample.

Deering's case, 85 N. Y. 11, referred to by the appellant, has no application. The avenue, to the improvement of which the proceedings then in question related, had already been laid out and opened, and improvements made under direction of the city government, and as the act of 1865-chap. 506 by which it was sought to justify them, confined and limited the power of the commissioners of Central park to streets laid out by them, it was held they had no jurisdiction, and that the assessment was invalid for want of some resolution or ordinance of the common council authorizing the work. The decision turned on the construction of the statute. In the case at bar there is no such limitation, and the statute under which the commissioners have acted, specifically conferred the power which they have exercised. It authorized the improvement and declared the powers of the commissioners in respect thereto. It not only authorized the laying out of streets, but extended the power of the commissioners so as to include all streets, whether laid out by them, or simply improved under their direction; as to these they were vested with all the powers possessed by them in respect to Central park, and by the corporation of the city and its several departments over such matters. A variety of cases are cited by the appellant in support of the objection that the work was not contracted for after advertisement for proposals. They relate to work done under the charter or city ordinances, but imply no limitation to a discretionary power in respect to work ordered by a body whose jurisdiction is derived directly from the legislature.

It is also contended in behalf of the appellant that the act of 1866 was superseded by the act of 1867-chap. 696-amended in 1868chap. 288. There are no express words to that effect, and if repealed, it is by implication. Such effect cannot be given to the later act, unless its provisions are so inconsistent with, or repugnant to those of the other, that the two cannot stand together. Nor is the court to strive for such a result. If it is not apparent that the legislature did intend to deal with the very case to which the former statute applied, it should not be disturbed. Here we find no such intention. The existing power of the commissioners is extended, but neither extinguished nor taken away. Their jurisdiction over Manhattan street was specifically conferred by the act of 1866. Its exercise was not forbidden by the act of 1867; nor is it inconsistent with its provisions. A larger question is also presented. The learned counsel for the appellant insists that the act of 1866 is unconstitutional, saying: title does not express its subject." It is: "An act relative to the powers and duties of the commissioners of Central park," and a careful scrutiny of its provisions has not enabled us to discover, in what respect, having in mind repeated decisions in answer to such objection, the title could be improved. It expresses a general object, and it must now be considered as the settled rule of construction that where such is the case, all matters fairly and reasonably connected with it, and all measures which will or may facilitate its accomplishment, are proper to be incorporated in the act and are germane to the title. People v. Briggs, 50 N. Y. 553; Matter of Mayer, id. 504; In re Department of Public Parks, 86 id. 437; In re Upson, 89 id. 67. Those

"Its

now before us are strictly within this rule. The provisions of the act, if literally applied, would include no matter not intrusted to the commissioners, nor any subject over which they are not, by its terms, given jurisdiction. Each section of the acts defines a power or prescribes a duty of the commissioners.

We agree with the general term in the conclusion that the assessment was well laid. The order appealed from should, therefore, be affirmed.

All concur, except MILLER, J., absent.
Order affirmed.

STEUBEN CO. BANK, Resp't, v. ALBERGER, Appl'ts.

January 19, 1886.

NEGOTIABLE INSTRUMENT- ACCOMMODATION INDORSER - POWER OF PARTNER TO BIND FIRM.

The finding of the referee, as a question of fact in this case, that John L. Alberger was authorized to use the name of the firm of which he was a mem ber as accommodation indorser upon the notes of S. W. Nash, was warranted by the evidence showing the relations and dealings between the parties and the purpose for which the notes were used.

Appeal from a judgment of the general term in the fourth department, affirming a judgment entered against the defendants on the report of a referee.

John C. Hubbell, for appellants. Spencer Clinton, for respondent. RUGER, Ch. J. The sole ground of error alleged in the judgment appealed from is that there was not sufficient evidence to sustain the finding of the referee that J. L. Alberger was authorized to use the firm name of J. L. Alberger & Co., as accommodation indorser upon the note of S. W. Nash.

The finding of the referee as well as the proof showed that on the 4th day of November, 1873, the plaintiff held two notes for $5,000 each, made by J. L. Alberger & Co., and upon which they were unquestionably liable as principal debtors. One of said notes was past due and unpaid, and the notes in suit were made by S. W. Nash and indorsed by J. L. Alberger & Co., for the purpose of retiring the former ones, and they were used in doing so. The notes for $5,000 each, held by the plaintiff as described, were made by J. L. Alberger on behalf of his firm, and exchanged with said Nash for his notes of a similar date and amount, for the purpose of enabling Nash to borrow money thereon, and he did obtain the money on them from the plaintiff. Said Nash and the firm of J. L. Alberger & Co. both resided and carried on business at Buffalo, and had been for several years prior to the execution of the notes in suit, in the habit of exchanging notes with each other for their respective accommodations. Samuel F. Alberger had knowledge of this course of business, and so far as appears, approved the same. It further appeared that John L. Alber ger had charge of the financial business of his firm, gave its notes and provided funds for their payment, borrowed money and notes for its accommodation, and attended generally to the business of raising funds

with which to meet its obligations. Under these circumstances the notes in suit were indorsed in the firm name by John L. Alberger without the knowledge of his partner, Samuel F. Alberger, for the purpose stated.

We do not doubt but that the making of the indorsements in question was entirely within the general authority of the financial partner of the firm to provide funds to meet its liabilities. The notes for which those in suit were exchanged were given by the firm for value and constituted obligations upon which the firm were unquestionably liable; and in making the indorsement in question in the firm name, John L. Alberger was simply performing the duty which he had always exercised in the management of the affairs of the firm, of providing funds to meet its liabilities.

The notes in question were actually used in retiring the obligations of the firm, and, so far as the case showed, no limitation was ever placed upon the power of John L. Alberger to provide funds for such a purpose. In this case he procured the extinguishment of their liability as principal debtor by substituting therefor a conditional liability as indorsers, and imposed the primary duty of paying the indebtedness upon another; and such an exercise of power was, we think, within the authority previously exercised by him as the financial member of the firm. Commercial Bank of L. E. v. Norton, 1 Hill, 501.

The judgment should be affirmed.

All concur except MILLER, J., absent.
Judgment affirmed.

MAYER, Applt, v. MAYOR, ETC., OF NEW YORK, Resp't.*

January 19, 1886.

ASSESSMENT CONFIRMATION JUDGMENT

An assessment made for the improvement of Broadway, pursuant to chapter 890, Laws of 1869, when confirmed by the court, has the force and conclusiveness of a judgment of the court. Errors and irregularities must be corrected and reviewed in the proceedings themselves and cannot be reached by a collateral action in equity; but where the expense of the improvement is to be apportioned between the city and the property benefited and it appears that after the confirmation of the report of the commissioners which fixed and established the assessment, the city, by resisting a claim for commissions, succeeded in materially reducing the amount, an action in equity may be maintained by a property owner to have a pro rata amount of the reduction applied on his assessment.

In such a case the plaintiff remains liable for interest from the date of the

assessment.

Cross appeals from judgment of general term affirming judgment rendered at special term.

By the act, chapter 890 of the Laws of 1869, passed May 17, 1869, Broadway, between Thirty-fourth and Fifty-ninth streets, was directed to be widened and straightened. The act provides that the commissioners of the Central Park shall locate and establish the new lines of the street. The act provides for the appointment of commissioners of estimate and assessment by the supreme court, who shall proceed *Affirming 28 Hun, 587.

VOL. III. 99

to estimate and assess the loss and damage to the persons whose property shall be taken for the improvement, and shall assess upon the property deemed to be benefited the expense of the improvement, in proportion to the benefit derived, as provided in the General Street Opening Act of 1813, and the commissioners were authorized to assess not to exceed one-third of the expense of the improvement upon the city. The costs and compensation of the commissioners in the proceeding having been duly taxed by the court, were inserted in their report. On the 5th day of July, 1872, the report of the commissioners was confirmed by the supreme court; $4,369,205.52 were assessed as the entire expense of the improvement, of which sum $2,564,742 were assessed upon the private property deemed to be benefited, and $1,804,562.52 were assessed against the city corporation. In said aggregate sum was included the sum of $165,632.40, for the costs and expenditures of the commissioners, for their services, surveys, maps, printing, etc., which bill of costs, prior to the confirmation of the report, upon due notice as required by law, had been taxed and adjusted by order of the supreme court. In and by said report so confirmed certain lands belonging to the plaintiff were assessed for benefit $10,928, which assessment, with the interest and default accrued theréon, still remains unpaid. Subsequently the commissioners of estimate and assessment applied to the comptroller of the city and demanded payment of their costs and disbursements as taxed; the comptroller refused to pay the same, and thereupon the commissioners brought an action against the city, which was subsequently compromised and settled by the payment to the plaintiffs of the sum of $103,288.32, which was accepted by the plaintiffs and which said sum was paid in satisfaction of their claim, thus saving to the city treasury the sum of $62,344.08.

The plaintiff claims in his complaint that the amount saved by the city was $97,531.82, and claims that he is entitled to have a proportionate amount of said sum applied to the reduction of the assessment against his property; he claims that said proportion is $240.41. The court, however, found that the amount by which the costs were reduced was $62,344.08 and not $97,531.82. The plaintiff, on the 13th of July, 1881, tendered to the collector of assessments the sum of $10,687.59 as payment, in full satisfaction of the amount assessed upon his property, and demanded that the assessment be canceled of record upon the books; the collector refused to receive said sum in full payment of said assessment. The plaintiff, therefore, claimed judgment: First, that his assessment be reduced by the sum of $240.41; second, that interest be charged upon the assessment as modified only from the date of the decree herein.

The court below adjudged that the assessment should be reduced from $10,928 to $10,687.59, deducting $240.41 therefrom, and decreeing that the plaintiff should pay interest upon the reduced amount as if such had been the original amount of the assessment. The plaintiff has appealed from so much of the judgment as subjects him to the interest charged. The defendants appeal from so much of the judg ment as directs the diminution of the assessment. The general term affirmed the judgment of the special term.