association was above $15,000 in value, in which case there was no tax exemption under Consol. Laws, c. 60, § 4, subd. 8, is not final, and may be collaterally attacked. [Ed. Note.-For other cases, see Taxation, Cent. Dig. § 535; Dec. Dig. § 320.*] 4. TAXATION (§ 319*)-ASSESSORS - VALIDITY OF PROCEEDING JURISDICTIONAL QUESTION. When the authority of tax assessors depends on the existence of some fact which they erroneously determine to exist, their acts pursuant to it are void. [Ed. Note.-For other cases, see Taxation, Cent. Dig. §§ 514, 527-529, 532-534; Dec. Dig. § 319.*] 5. TAXATION (§ 500*) - EXEMPTIONS-DETER MINATION OF ASSESSORS-EQUITABLE JURIS- Where assessing officers erroneously determine that the property of an incorporated volunteer fire association is of a value more an $15,000, in which case it is not exempt from taxation under Consol. Laws, c. 60, § 4, subd. 8, the taxes were invalid, and constituted a cloud on title, provable only by evidence dehors the record, and an equitable action to cancel the taxes was proper. [Ed. Note.-For other cases, see Taxation, Cent. Dig. §§ 925-930; Dec. Dig. § 500.*] Appeal from Supreme Court, Appellate Division, Second Department. Suit by the Elmhurst Fire Company against the City of New York. From a judg ment of the Appellate Division (157 App. Div. 891, 141 N. Y. Supp. 1118), modifying a judg ment in favor of plaintiff, defendant appeals. Affirmed. Frank L. Polk, Corp. Counsel, of New York City (Curtis A. Peters, of New York City, of counsel), for appellant. Joseph J. Tuohy, of Long Island City, for respondent. COLLIN, J. The plaintiff, an incorporated association of present volunteer firemen, seeks a judgment annulling and canceling of record the taxes against its real estate in the city of New York for the years 1902 to 1909, inclusive, upon the ground that the property was exempt from taxation. The statute provided: taxation: exceeded $15,000, it was exempt to the extent of $15,000, and the balance of the value was taxable; (b) therefore the assessors, being obligated to determine the value of the property, had jurisdiction over it and the Owner, which they presumptively exercised by judicially determining that the value was $19,200, and allowing the partial exemption of $15,000; and (c) having jurisdiction, their determination can be reviewed only by the statutory writ of certiorari (Tax Law, § 290, formerly § 250), not by a court of equity in a collateral action. The plaintiff asserts: (a) The statute enacted that, if the actual value of the property was $15,000 or less, it was exempt; if the value exceeded $15,000, there was no exemption, and the plaintiff was taxable upon the full value; and (b) as the value did not exceed $15,000, the assessors were without jurisdiction to assess, the taxes were invalid, and constitute a cloud upon the title which a court of equity will cancel. The assertions of the plaintiff are true. [1, 2] The power of taxation is vested in the absolute legitimate discretion of the Legislature. It alone can declare the property which shall be subject to or exempt from taxation. In the present case the primary inquiry is: Did the Legislature intend by the statute as quoted to create a partial or a conditional exemption? The language of "The following property shall be exempt from Allegations of the complaint, admitted by the demurrer, are that the property of the plaintiff was through the years named actually and exclusively used by it, did not exceed in value the sum of $15,000, and was assessed at the sum of $4,200. The judgment of the Special Term annulling the taxes was modified (and correctly as the respondent concedes) by the Appellate Division, by striking therefrom the cancellation of the tax for 1902, and, as thus modified, affirmed. The defendant asserts: (a) The statute enacted that, if the value of the property was $15,000 or less, it was exempt; if the value The "All dwelling houses and lots of religious corporations while actually used by the officiating clergyman thereof (shall be exempt from taxation), but the total amount of such exemption to any one religious corporation shall not exceed two thousand dollars." Subdivision 11, after creating an exemption, states: "But the total amount of such exemption on account of both real and personal property shall not exceed fifteen hundred dollars." Other subdivisions (5, 7) create exemptions "to the extent of" an ascertainable sum or value, while other subdivisions (18, 19) create exemptions, "provided that such exemption of property for any society in the counties of Kings or New York shall not exceed one hundred and fifty thousand dollars, and in any other county affected hereby shall not For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes (213 N. Y. 82) LAMPORT v. SMEDLEY. exceed fifty thousand dollars." The defendant asserts and correctly that the Legislature intended by such subdivisions to create partial (Court of Appeals of New York. Nov. 10, 1914.) exemptions, and asserts further and incor rectly that the subdivision in question was 1. APPEAL AND ERROR (§ 1175*)-DECISIONFINDINGS. intended to have an identical effect. We may with confidence presume that an uniform legislative intention in provisions so associated would have been expressed in uniform or similar words. [3, 4] It is true that the assessing officers were by the statute obligated to determine whether or not the value of the real estate Under the express provisions of Code Civ. Proc. § 1317, as amended September 1, 1912, the Appellate Division, on reversing the judgfindings and proceed to a new and complete adment in an action in equity, may make its own judication, though it is conceivable that on a new trial new evidence might be introduced which would vary the result. [Ed. Note.-For other cases, see Appeal and 1175.*] exceeded the sum of $15,000. Such deter-Error, Cent. Dig. §§ 4573-4587; Dec. Dig. § mination of the value was essential to the determination of their jurisdiction. If the value was in fact $15,000 or less, the property was removed from their jurisdiction, and they must ignore its existence. If more, they must assess it. In making the determination they act judicially and within the sphere of their duty, but their decision is not conclusive as to their jurisdiction. They were officers clothed by statute with limited powers, and their decision on a question determinative of their authority is not final and may be attacked collaterally. When a statute, as in this case, leaves to the assessing officers questions of a jurisdictional character, it is well settled that their decision does not preclude parties aggrieved from resorting to judicial remedies. When their authority depends upon the existence of some fact, which they erroneously determine to exist, their acts pursuant to it are void. Nat. Bank of Chemung v. City of Elmira, 53 N. Y. 49; Ogden City v. Armstrong, 168 U. S. 224, 18 Sup. Ct. 98, 42 L. Ed. 444; McLean v. Jephson, 123 N. Y. 142, 25 N. E. 409, 9 L. R. A. 493; Dorwin v. Strickland, 57 N. Y. 492; Matter of N. Y. C. Protectory, 77 N. Y. 342. In the case at bar the value of the property did not exceed the sum of $15,000. The property was exempt and the assessing officers had no jurisdiction over it. Their jurisdiction depended upon the facts as they were, not as they determined them to be. The assessments were therefore void, and the taxes invalid. [5] The taxes, being invalid, were a cloud upon the title of the plaintiff, provable only by evidence dehors the record, and this action in equity is maintainable. Strusburgh v. Mayor, etc., of N. Y., 87 N. Y. 452; Alvord v. City of Syracuse, 163 N. Y. 158, 57 N. E. 310; County of Monroe v. City of Rochester, 154 N. Y. 570, 49 N. E. 139; National Bank of Chemung v. City of Elmira, 53 N. Y. 49. The judgment should be affirmed, with costs. WILLARD BARTLETT, C. J., and HISCOCK, HOGAN, MILLER, and CARDOZO, JJ., concur. CHASE, J., absent. Judgment affirmed. 2. APPEAL AND ERROR (§ 1107*)-DECISION— APPLICATION OF STATUTE. Code Civ. Proc. § 1317, as amended September 1, 1912, which authorizes the Appellate Division, on reversing a judgment of the trial court in an action in equity, to make its own findings and proceed to a new and complete adjudication, applies to appeals pending at the time of its adoption. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 4399-4404; Dec. Dig. § 1107.*] 3. APPEAL AND ERROR (§ 1107*)-DECISIONAPPLICATION OF STATUTE. That a party's exceptions to the rulings of the trial judge were omitted from the case on appeal, pursuant to the practice prevailing under the then existing statute, did not preclude the Appellate Division of the Supreme Court, on reversing the judgment in an action in equity, from making its own findings and proceeding to a new and complete_adjudication, pursuant to Code Civ. Proc. § 1317, as amended September 1, 1912, though the action was pending on appeal to the Appellate Division when the amendment was adopted, especially where the case was not settled by the trial judge until after such adoption. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 4399-4404; Dec. Dig. § 1107.*] Appeal from Supreme Court, Appellate Division, First Department. Action by Albert G. Lamport, as administrator of Hiram L. Lamport, deceased, From against Mary Clementine Smedley. a judgment of the Appellate Division (155 App. Div. 516, 140 N. Y. Supp. 567) reversing a judgment for plaintiff, and dismissing the complaint, plaintiff appeals. Affirmed. 157 App. Div. 442, 142 N. Y. Supp. 350. See, also, 210 N. Y. 547, 104 N. E. 1133; Edmund L. Mooney, of New York City, for appellant. John S. Wise, Jr., of New York City, for respondent. CARDOZO, J. The action is brought to set aside a transfer of certificates of stock and policies of insurance. The charge is that the defendant procured the transfer through undue influence and fraud. The court at Special Term found in favor of the plaintiff. The Appellate Division reversed the judgment as contrary to the evidence and dismissed the complaint. In so doing it followed the rule of practice laid down in Bonnette v. Molloy, 209 N. Y. 167, 102 N. E. 559, and made its own findings. By these it is estab- | limitations upon the power of the appellate lished that neither actual nor constructive fraud is chargeable to the defendant. [1] That the Appellate Division has the power in an action in equity, when it reverses the judgment of the trial court, to make its own findings and proceed to a new and complete adjudication was held, by implication at least, in Bonnette v. Molloy, supra. If it be true, as the appellant's counsel asserts, that the decisions of this court are supposed by the bar to leave the existence of the power in doubt, it is time that the doubt be dispelled. Until the amendment which took effect September 1, 1912, section 1317 of the Code of Civil Procedure provided: "The Appellate Division may reverse or affirm, wholly or partly, or may modify, the judgment or order appealed from, and each interlocutory judgment or intermediate order, which it is authorized to review, as specified in the notice of appeal, and as to any or all of the parties, and it may, if necessary or proper, grant a new trial or hearing." Under the law, as it then stood, a new trial was necessary, unless it appeared to be impossible and not merely improbable that the result would be changed. Elliott v. Guardian Trust Co., 204 N. Y. 212, 97 N. E. 521; Duclos v. Kelley, 197 N. Y. 76, 89 N. E. 875; Putnam v. Lincoln Safe Deposit Co., 191 N. Y. 166, 83 N. E. 789. By an amendment which took effect September 1, 1912, section 1317 (so far as its provisions are material in this case) was made to read as follows: "Upon an appeal from a judgment or an order, the Appellate Division of the Supreme Court, or Appellate Term, to which the appeal is taken, may reverse or affirm, wholly or partly, or may modify, the judgment or order appealed from, and each interlocutory judgment or intermediate order, which it is authorized to review, as specified in the notice of appeal, and as to any or all of the parties. It shall thereupon render judgment of affirmance, judgment of reversal and final judgment upon the right of any or all of the parties, or judgment of modification thereon, according to law, except where it may be necessary or proper to grant a new trial or hearing, when it may grant a new trial or hearing." The purpose of this amendment is not doubtful. In equity causes, before the days of Code practice, the appellate court was not constrained upon reversal to order a new trial, but might proceed to render whatever new decree the justice of the case required. Schenck v. Dart, 22 N. Y. 420; Benedict v. Arnoux, 154 N. Y. 715, 725, 49 N. E. 326; Penhallow v. Doane, 3 Dall. 54, 107, 1 L. Ed. 507; Wickliffe v. Owings, 17 How. 47, 15 L Ed. 44; Cragin v. Lovell, 109 U. S. 1941, 3 Sup. Ct. 132, 27 L. Ed. 903. The Appellate Division has now been reinvested with that power. Indeed, the power has been extended, for it applies to all actions and proceedings, whether equitable or legal, except where the trial under review has been before a jury. The court in the latter class of cases we need not now consider. The appellant insists that the grant of power to render final judgment is neutralized by the concluding provision that, when necessary or proper, a new trial must be ordered. He asks us to hold that, as a matter of law, a new trial is always necessary and proper when it is conceivable that new evidence might vary the result. Such a construction of the statute would leave the law exactly where it stood before the amendment was adopted. The Legislature did not have in view a vain and nugatory enactment. It intended to work an important reform in procedure, and its purpose ought not to be thwarted by any narrow construction. The Appellate Division has still the power, when it is of the opinion that such relief would be in furtherance of justice, to order a new trial. In this case it held that justice would not be promoted by the concession of that privilege. [2, 3] It is urged that the amendment of section 1317 does not apply to appeals pending at the time of its adoption. We cannot so restrict it. Matter of Davis, 149 N. Y. 539, 44 N. E. 185; Lazarus v. Met. El. Ry. Co., 145 N. Y. 581, 40 N. E. 240. The point is made that, since the appellant in this court was the respondent at the Appellate Division, his exceptions to the rulings of the trial judge were omitted from the case on appeal in accordance with the practice that prevailed before the statute was amended. It is argued that in such a situation the refusal of a new trial would work a denial of justice. The record does not sustain the argument. This case was not settled by the trial judge till October, 1912. That was after the amendment. The appellant, therefore, had an opportunity to have his exceptions inserted, if he thought they were material. Even if the settlement of the case had preceded the amendment of the statute, the proper practice would have been for the appellant either to move to correct it, or at least to bring his exceptions to the notice of the Appellate Division by appropriate affidavit upon the settlement of its order. There is no presumption that there were any exceptions, and still more plainly none that any of them were material. No other questions require consideration. The evidence is sufficient to sustain the findings of the Appellate Division, which are therefore controlling in this court. The judgment should be affirmed, with costs. WILLARD BARTLETT, C. J., and WERNER, CHASE, COLLIN, HOGAN, and MILLER, JJ., concur. Judgment affirmed. (213 N. Y. 68) SUNDSTROM et al. v. STATE. (Court of Appeals of New York. Nov. 10, 1914.) 1. APPEAL AND ERROR (§ 1095*)-REVIEWFINDINGS OF INTERMEDIATE COURT. Where a finding of the Board of Claims that the leaks in a canal, causing injury to claimant, were due to lack of repair, was affirmed by the Appellate Division by enumerating the findings disapproved, and affirming all others, the Court of Appeals must assume that lack of repair caused the damage. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 4268, 4329, 4330; Dec. Dig. § 1095.*] 2. CANALS (§ 15*)-CONSTRUCTION-CONTRACTS -CLAIMS AGAINST STATE. Contractors for a barge canal close to an old canal, who inspected the ground before taking the contract, which showed no visible evidence of the soil being saturated by the leaky condition of the canal, which at the time was empty, may recover from the state the extra expenses of construction caused by leakage and overflow from the canal during the season of navigation, due to its lack of repair. [Ed. Note. For other cases, see Canals, Cent. Dig. § 15, 16, 18, 19; Dec. Dig. § 15.*] 3. CANALS (§ 18*)—ADJOINING Property-LIABILITY OF STATE. The state is liable to a neighboring proprietor for the failure to maintain in proper condi tion the walls and banks of its canals. [Ed. Note.-For other cases, see Canals, Cent. Dig. §§ 20-24; Dec. Dig. § 18.*] 4. CANALS (§ 15*)-CONSTRUCTION-INJURIES FROM OTHER CANAL-CLAIMS AGAINST STATE -DEFENSES. A provision in a contract for the construction of a barge canal that bidders are required to form their own judgment as to quantity, etc., by personal examination, does not avoid the state's liability for the damage to the contractor, caused by the leaky condition of an old canal near the line of the barge canal which so saturated the soil as to cause an additional expense to excavate it. [Ed. Note.-For other cases, see Canals, Cent. Dig. §§ 15, 16, 18, 19; Dec. Dig. § 15.*] 5. CANALS ($ 15*)-CONSTRUCTION-INJURIES FROM ANOTHER CANAL CLAIMS AGAINST STATE-DEFENSES. A provision in a contract for a barge canal that debars the contractor from pleading misunderstanding or deception, because of estimates of quantity, etc., does not prevent recovery by the contractor against the state for the extra expense caused by saturation of the soil from the leaks in an old state canal due to its lack of repair. 7. CANALS (§ 15*)-CONSTRUCTION-INJURIES FROM OTHER CANAL-KNOWLEDGE. A contractor for a barge canal close to an old state canal may not recover damages for extra cost of construction, caused by the leakage and overflow of the old canal, though due to its lack of repair, if the contractor, on his inspection of the work as required by the contract, observed that the canal leaked, but the contractor is not bound to discover it, even if that were possible by diligent effort. [Ed. Note.-For other cases, see Canals, Cent. Dig. §§ 15, 16, 18, 19; Dec. Dig. § 15.*] 8. Appeal and Error (§ 996*)-REVIEW-IN FERENCES OF FACT. Where a contract for the construction of a state canal did not require the construction of wash walls, but provided that when the prism should have been fully excavated and trimmed, and on being so ordered, the protection work should be placed on the inside faces, the state did not have to order the wash walls until the prism of that part of the canal covered by the contract was completed. [Ed. Note.-For other cases, see Canals, Cent. Dig. §§ 15, 16, 18, 19; Dec. Dig. § 15.*] 10. COMPROMISE AND SETTLEMENT (§ 5*) WHAT CONSTITUTES. A state contractor, who was bound to complete the work within a given time under liability for liquidated damages for delay, requested an extension of time, claiming that the delay was due to the wrongful act of the state. Held, that where the parties agreed on an extension of time, based on admissions by the state engineer, the extension was a settlement, barring a claim for the state's delay, as the waiver of the state's right to have the question of delay determined in an action for the liquidated damages was a sufficient consideration for the adjustment. [Ed. Note.-For other cases, see Compromise and Settlement, Cent. Dig. §§ 10-16; Dec. Dig. § 5.*] Appeal from Supreme Court, Appellate Division, Third Department. Claim by Charles Sundstrom and others From a against the State of New York. judgment of the Appellate Division (159 App. Div. 241, 144 N. Y. Supp. 390) modifying a determination of the Board of Claims, claimants appeal. Judgment of the Appellate Division and determination of the Board of [Ed. Note. For other cases, see Canals, Cent. Claims reversed, and new trial granted. Dig. §§ 15, 16, 18, 19; Dec. Dig. § 15.*] CON 6: CANALS (§ 15*) CONSTRUCTION [Ed. Note.-For other cases, see Canals, Cent. Dig. §§ 15, 16, 18, 19; Dec. Dig. § 15.*] L. Laflin Kellogg, of New York City, for appellants. Irving D. Vann, of Syracuse, for the State. CARDOZO, J. The claimants are the contractors for the construction of a section of the barge canal. Their contract is identified as contract No. 3. They have filed a claim for damages against the state on the ground that through its fault they have been subjected to increased expense. Their claim was in part sustained and in part rejected by the Board of Claims. Cross-appeals to the Appellate Division resulted. In that, ment of its counsel, as in the opinion of the court the award was modified to the extent Appellate Division, stress has been laid upthat it was appealed from by the state, and affirmed to the extent that it was appealed from by the claimants. The case as it comes here brings up for review both the modification and the affirmance. on the close contiguity between the sites of the two canals. It is urged that at some points their lines almost overlap, and that nowhere is there any considerable interval of space between them. As we view the case, this element of contiguity is not controlling. The question is not so much, "where did the leaks arise?" The question is, rather, "who was responsible for their existence?" Undoubtedly the claimants assumed the risk of any unforeseen conditions not due to the fault of the state, but, in the absence of act 1. The first question is whether the state is liable to the claimants because of leakage and overflow from the old Champlain canal. The result was to saturate the soil where the work was going on, and to occasion an additional expense of over $60,000. The Board of Claims held that for this loss to the claimants the state was liable. The Ap-ual notice, we do not think they assumed the pellate Division held that the award was in that respect erroneous, and reversed it. The ground of the reversal was that it was the claimants' duty to satisfy themselves as to the character of the work, and that they took the risk of unforeseen conditions which might render it more difficult or expensive. [1] The old Champlain canal was built by the state many years ago. At the section where the leaks occurred, it is situated to the east of the site of contract No. 3 and at a higher elevation. The distance between the two canals varies from a maximum of about 800 feet to a minimum of 20. The intervening space was used as a spoil bank. Before the contract was made, one of the claimants visited the site, and went over it from end to end. At that time, however, the water had been emptied out of the old canal. There was therefore no leakage then. There were, however, ditches that ran at right angles to the canal, and that were used to carry off its waters. There were also at a few points some signs of swampy ground. The Board of Claims found that there were no surface indications that water would or had come from the old Champlain canal, and that there was no way in which the claimants could have ascertained its defective condition through any reasonable examination. The Appellate Division reversed these findings. In so doing, it held in effect that the defects could have been discovered. It did not find, however, that they were in fact discovered. When the season of navigation opened in the middle of May, and the water was let into the canal, the leaks at once began. They continued, whenever the canal was open, during all the years of the work. The Board of Claims found that the leaks "were due to lack of repair and defective condition." This finding was not disturbed at the Appellate Division. The order of that court enumerates the findings disapproved and affirms all others. In this court, therefore, we are required to assume that "lack of repair and defective condition" brought about the damage. [2, 3] With that assumption established, the question is whether the state must make good the loss to its contractors. In the argu risk of unforeseen conditions due to the negligent omission of the state to repair and safeguard its own structures. If these leaks had come, not from a canal, but from a natural body of water, which had permeated the adjoining ground, we do not doubt that any increased cost must have been borne by the claimants. If they had come from the state's canal, but had not been due to the failure to use reasonable care in maintaining and preserving it, the loss must have fallen on the claimants. Leakage inseparable from a canal, even when constructed and used with an adequate degree of prudence, ought not to make the state answerable in damages to its contractors. In view, however, of the decision of the Appellate Division, we have no right to examine the record and determine for ourselves whether the finding in respect of the cause of the leaks has support in the evidence. We must accept the findings as they are given to us. Accepting them, we think that liability to the claimants follows. The state is liable to a neighboring proprietor for the failure to maintain in proper condition the walls and banks of its canals. Reed v. State of N. Y., 108 N. Y. 407, 15 N. E. 735. We do not say that its liability to its contractors goes so far as its liability to adjoining owners. There is certainly no liability to contractors in the absence of negligence. We think, however, that even toward contractors the state is under a duty to use reasonable care in maintaining its own property in safety, and that for failure to fulfill that duty it is answerable in damages. A contractor undertaking work of excavation near a sewer in a city street would have to bear the extra cost due to the proximity of the obstruction; but, unless by special contract, he would not assume the risk of the city's flooding his work because of a negligent omission to keep its sewer in repair. Such a case does not differ in principle from the one before us. In these circumstances, we must apply against the state the principle applied against a municipal corporation in Horgan v. Mayor, etc., of N. Y., 160 N. Y. 516, 55 N. E. 204. The ruling there was that, if such a corporation by its own act causes work to be done by a contractor to be more expensive than |