1831, and that letters testamentary on his estate were granted; the petition therefor showing that he left his widow surviving. Evidence was also produced showing that persistent and exhaustive efforts had been made to find William Shephard, or to ascertain what has become of him, without success. New evidence was also given in regard to the cultivation of part of the premises, and which shows that there was a vegetable garden upon the premises in 1862. It was also shown that there was a carriage road upon the grounds of the asylum, which passed through the premises in question, and was continually used. The evidence establishes that there were such acts and assertions, implying ownership, with reference to taxes, cutting through streets, and similar matters, and also that the premises in question were actually occupied as a vegetable garden, and that roads and walks were constructed through them between 1859 and 1862; also, that the premises were inclosed by a substantial fence at all times since about 1859, and that before that time the premises were inclosed, so as to be used for the purposes of an asylum, and that such premises have been fenced in for a period of 60 years. The evidence also shows that during all this time no adverse claim has ever been made by any one. It seems to me that this new evidence supplies the defects in the evidence given on the former trial, and that upon all the evidence the defendant has established that the Society of the New York Hospital acquired a good title to the property in question by adverse possession against all the world, including William Shephard and his heirs. Assuming that the society has acquired such title by adverse possession, I should, however, if the question came before me as an original one, hesitate about holding that the plaintiffs should be compelled to complete their purchase. The decision in this case will not quiet the title to the property, except as between the parties to the action, for the want of a conveyance by William Shephard will always be discovered by whosoever examines the record. If the plaintiffs are required to take title, and should hereafter wish to dispose of the property, the title will doubtless again be examined, and the defect again discovered. Their vendee may then refuse to accept the title, and litigation may arise between such vendee and the present plaintiffs. In that event it is by no means certain that the plaintiffs will be able to produce the evidence which, with so much labor, the repre sentatives of the New York Hospital have gathered together and brought before the court upon this second trial. In such a case the present plaintiffs might find themselves in the same position as the present defendant now is,—with a title by adverse possession which is perfectly good as a means of defense against all the world, but which it might be difficult to establish in a legal proceeding by the necessary evidence. It seems to me that some of the observations contained in the opinion written by the chief judge of the court of appeals in the case of Fleming v. Burnham, 100 N. Y. 9, 2 N. E. 907, are applicable to this situation: "Where all the parties in interest are before the court, and the court has jurisdiction to decide, they are concluded by the judgment pronounced, so and 100 New York State Reporter long as it stands unreversed, however imperfectly the evidence or facts were presented upon which the adjudication was made, or however doubtful the adjudication may have been in point of law. If the controversy involves a disputed question of fact, or the evidence authorizes inferences or presumptions of fact, the finding of the tribunal makes the fact what it is found to be for the purposes of the particular case, although the evidence of the fact may be weak and inconclusive, or although it is apparent that there are sources of information which have not been explored, which if followed might have removed the obscurity. The parties are nevertheless concluded in such a case, because they were parties to a judicial controversy before a tribunal constituted for the very purpose of deciding rights of persons and property, and before which they had an opportunity to be heard. But the court stands in quite a different attitude where it is called upon to compel a purchaser to take title under a judicial sale, who asserts that there are outstanding rights and interests not cut off or concluded by the judgment under which the sale was made. The objection may involve a mere question of fact, or it may involve a pure question of law upon undisputed facts. In either case it may very well happen that the question is so doubtful that, although the court would decide it upon the facts disclosed, in a proceeding where all the parties interested were before the court, nevertheless it would decline to pass upon it in a proceeding to compel a purchaser to take title, and would relieve him from his purchase. The reason is obvious. The purchaser is entitled to a marketable title. A title open to a reasonable doubt is not a marketable title. The court cannot make it such by passing upon an objection depending on a disputed question of fact or a doubtful question of law, in the absence of the party in whom the outstanding right was vested. He would not be bound by the adjudication, and could raise the same question in a new proceeding. The cloud upon the purchaser's title would remain, although the court undertook to decide the fact or the law, whatever moral weight the decision might have. It would especially be unjust to compel a purchaser to take a title, the validity of which depended upon a question of fact, where the facts presented upon the application might be changed on a new inquiry, or are open to opposing inferences." That, to be sure, was the case of an attempt to compel the purchaser at a judicial sale to accept a doubtful title, but the reasoning of the court appears to be applicable to the present case, in which it is conceded that the record title is incurably defective, and that the title of the defendant depends upon the adverse possession of the hospital, and it also appearing that such title has been established with great labor and difficulty, and depends in part upon the testimony of witnesses who must in the natural course of events die before many years, and upon records, documents, and papers which might not be accessible to a subsequent purchaser. I do not feel at liberty, however, to decide the case in accordance with the views above suggested; for, as I understand the matter, the judgment obtained by the defendant at the first trial was reversed by the appellate division on the sole ground that the evidence was not sufficient to show that the New York Hospital, as against its co-tenant, if there was any, had acquired a good title by adverse possession. That evidence has now been supplied, and, as I am of the opinion that the society did acquire such title, it is my duty to adopt the views of the appellate division, and direct judgment in favor of the defendant, dismissing the complaint, and requiring the plaintiffs to carry out their contract of purchase in accordance with the terms therein. Judgment accordingly. (32 Misc. Rep. 30.) PEOPLE ex rel. DELAWARE & H. CANAL CO. v. FEITNER et al. 2 * TAX ASSESSMENT-DEDUCTION OF INDEBTEDNESS-INDIRECT LIABILITY. Tax Law, § 6, provides that "no reduction shall be allowed in the assessment of personal property on account of any indirect liability as surety, guarantor, indorser, or otherwise." The relator leased the property of a railroad company for the entire term of its charter, and for every renewal thereof. Pursuant to an agreement in the lease, bonds of the railroad company amounting to $10,000,000 were issued, and were indorsed with the relator's guaranty. The tax commissioners refused to deduct the amount of the bonds from the relator's assessment, on the ground that they constituted an indirect liability as guarantor. Held, that the amount of the bonds should be deducted from the relator's assessment, since the engagement, though collateral in form, was in substance an original undertaking. Certiorari by the people, on the relation of the Delaware & Hudson Canal Company, against Thomas L. Feitner, to review an assessment of taxes. Assessment canceled. David Willcox, for relator. John Whalen (James M. Ward, of counsel), for respondents. LEVENTRITT, J. The preliminary question involved on this application as to the admissibility of the second stipulation I have decided adversely to the defendants. Tax Law 1896, c. 908, § 253; People v. Dederick, 161 N. Y. 195, 55 N. E. 927; People v. Barker, 152 N. Y. 417, 46 N. E. 875; People v. Feitner, 43 App. Div. 198, 59 N. Y. Supp. 327. Even in the absence of these authorities, the relevancy of the second stipulation flows from the unqualified admission of the first, inasmuch as it concededly correctly states the disposition of the bonds referred to in the latter. The fact existing, it would be inequitable not to consider its effect on the issues. On the entire record, it seems quite clear that whether the interest of the relator in the disputed items of property be considered that of absolute ownership in fee, or merely that of lessee, the commissioners erred in refusing to deduct the indebtedness assumed by the relator for the 10,000,000 of Susquehanna & Albany railroad bonds. I deem it unnecessary to consider other points in the case, as the allowance of this deduction necessarily cancels the assessment against the relator. The pertinent facts concerning this item may be very briefly stated. In the year 1870 the relator leased the property of the Albany & Susquehanna Railroad Company for the full term of its charter, and for every renewal and continuance thereof. It is quite evident from the instrument, as is in fact stated in another lease to the relator, and involved in the proceedings before the commissioners, that it was the intention of the parties to make the transfer as nearly perpetual as was possible and practicable under the law. There are at present outstanding bonds of the Albany & Susquehanna Railroad Company in the amount of $10,000,000, which are secured by the consolidated mortgage of that company, and which were issued pursuant to an agreement made in connection with the lease, and to facilitate and effectuate the transfer. Of these bonds $377,000 were ex and 100 New York State Reporter changed directly with the individual holders of bonds previously outstanding. The balance, $9,623,000, were issued to the relator,$3,073,000 in exchange for bonds which it had purchased, and $6,550,000 in payment for sums expended by it in construction work upon the property. The relator subsequently sold these bonds to the holders, and received the amount thereof. Pursuant to one of the terms of the lease, there was indorsed upon each bond, under the relator's seal, the following guaranty: "The President, Managers, aud Company of the Delaware and Hudson Canal Company hereby, for value received, guaranty the payment of the principal of, and the interest of, the within bond." The interest on these bonds is and has been paid by the relator directly to the holders. The commissioners justify their refusal to deduct the $10,000,000 of outstanding bonds by section 6 of the tax law, which reads: "No deduction shall be allowed in the assessment of personal property by reason of the indebtedness of the owner contracted or incurred in the purchase of nontaxable property or securities owned by him or held for his benefit, nor for or on account of any indirect liability as surety, guarantor, indorser or otherwise, nor for or on account of any debt or liability contracted or incurred for the purpose of evading taxation." The commissioners maintain that the item sought to be deducted represents an indirect liability as guarantor, and is therefore nondeductible. It is argued that the statute refers to and excludes from deduction all indirect liabilities; that the statute specifically defines what is meant by the phrase "indirect liability," and distinctly qualifies the term by enacting that it shall be held to include liability such as surety, guarantor, and indorser, and irrespective of the fact whether or not the liability as guarantor is considered indirect in law. The contention reduces itself to this: That the mere use of the word "guaranty" to define an obligation assumed makes the liability nondeductible under the tax law, regardless of the question whether, in fact or law, the obligation is direct or indirect, primary or secondary. The manifest fallacy of this construction is correctly pointed out by the relator, who shows that this would lead to the result that any liability expressed "otherwise" is an indirect liability and cannot be deducted. After insisting that force and effect must be given to every word of the statute, and that therefore the proper construction includes an indirect liability as surety, guarantor, or indorser, and in addition includes such other liabilities as are indirect, the defendants, in effect, discard the word "indirect," because, if the statute includes all liabilities as guarantor, it is superfluous to characterize them as indirect. The proper reading of the statute is that it is intended to exclude indirect liabilities. The words following "liability" are explanatory. So far as the liability of a guarantor can be direct, it is excluded. When the reason underlying the nonexemption of indirect liabilities is considered, the exclusion of the direct is readily justified. That reason is the prevention of double deduction. People v. Barker, 155 N. Y. 330, 49 N. E. 940. The person directly responsible for the debt alone can deduct it; and properly, because the debt is an asset in the hands of the creditor, and there taxable. Thus the principle that no property shall escape taxation unless expressly exempted is carried out. But, if the person indirectly and secondarily responsible is also allowed to deduct the debt, there is no corresponding asset to be taxed in some other's possession. The inquiry here must therefore be, is the relator directly or indirectly liable? It is clear that the relator is primarily, directly, and originally liable; that the consideration moved directly to it; that the obligation assumed was for its own benefit; and that under all the circumstances of the issue, "guaranty" of payment, and disposition of the bonds, it, in the first instance, became answerable for their payment, while the lessor was shifted to the position of surety. The fact that the form of indorsement employed the word "guaranty" must not be permitted to confuse the legal effect, not only of that word, but of the whole obligation assumed by the indorsement. Though the word is often employed in business dealings to express relation to a debt clearly understood by the parties interested, it must be remembered that from the legal standpoint the terminology may be loose, and that the word may neither have the meaning nor be attended by the consequences which would flow from accurate usage with reference to the circumstances of the transaction. In its restricted legal sense, a guaranty stands for an indirect liability. 14 Am. & Eng. Enc. Law (2d Ed.) 1128, and cases cited. Some one else is liable in the first instance. Here, under a direct contract with each bondholder,under a promise founded on a distinct and new consideration, beneficial to the promisor,-the obligation assumed was not collateral, but primary. It is to be borne in mind that to effectuate the lease. advantageous to the relator, an entirely new issue of bonds, secured by the trust mortgage, was provided for. By virtue of that transac tion the lessor, which had previously been the principal debtor, be came merely collaterally liable as surety for the payment of the debt. Woodruff v. Railroad Co., 93 N. Y. 609. It is but necessary to refer to two of many cases to fortify the position here adopted: Arnot v. Railroad Co., 67 N. Y. 315. The defendant, in consideration of the construction by another railroad company of a connecting line, indorsed an alleged guaranty of the payment of the interest coupons on the bonds of that company. Subsequently the defendant, having become the owner of all the bonds, issued some to the plaintiff's testator. The defense to a suit on the bonds was that the obligation was collateral. The obligation was held to be the direct primary obligation of the defendant. "The transaction," the court say, "may be treated as if the company had said to Arnot: 'Here are our bonds, and here is our guaranty. Take them in satisfaction of your claim.'" Newcomb v. Hale, 90 N. Y. 326, was an action brought to foreclose a mortgage executed by one defendant, and which, with the accompanying bond, had been assigned to the plaintiff by another defendant, who in the assignment guarantied the payment of the bond. "The guaranty of the defendant," says Andrews, C. J., "was not entered into for the benefit of the original debtor, but for his own benefit, subsequent to the original transaction, and upon a new and independent consideration moving from the plaintiff. The engagement was collateral in form, but it was in substance an original undertaking; and |