SECOND DEPARTMENT, SEPTEMBER TERM, 1880. cedure. Such power also existed at common law (Graham Pr., 652), and that power was preserved by section 469 of the Code of Procedure. The motion to amend was properly made in this court. (Code Civ. Pro., § 722; Graham Pr., 667.) The evidence shows very satisfactorily that the undertaking was not given for the purpose of staying proceedings pending the appeal. In the first place, the action was one to foreclose a mechanics' lien. The undertaking is not in the form prescribed in order to obtain a stay pending an appeal from a judgment in such an action. (Code Civ. Pro., § 1331.) In the second place, it is proved that the attorney for the appellant struck from the printed blank the usual recital relating to a stay, but omitted to strike therefrom the operative clause requisite to effect a stay, merely by inadvertence and mistake. It would be a reproach to the law if such a mistake could not be corrected by amendment in the usual manner, namely, by motion.” Order affirmed, with $10 costs and disbursements. Thompson, Weeks & Lown, for the appellant. Bernard J. Tinney, for the respondent. Opinion by GILBERT, J.; DYKMAN, J., concurred; BARNARD, P. J., not sitting. Order affirmed, with costs and disbursements. THE PEOPLE OF THE STATE OF NEW YORK ex rel. ELIZA VOGLER, LANDLORD, v. ANDREW WALSH, POLICE JUSTICE OF THE CITY OF BROOKLYN, AND HORATIO S. STEWART, TENANT, RESPONDENTS. Summary proceedings by owner of tax-lease to recover land—what facts must be proved by him-1873, ch. 863, tit. 8, §§ 6, 10-service of a notice to redeem is not proved by the affidavit of the party serving the same. CERTIORARI to review a decision of the respondent, a police justice of the city of Brooklyn, dismissing summary proceedings in SECOND DEPARTMENT, SEPTEMBER TERM, 1880. stituted by the relator to recover the possession of certain premises described in her complaint. The relator claimed to be entitled to the possession of the said premises by virtue of a lease thereof to her by the city of Brooklyn, made upon a sale of the premises for unpaid taxes. The court, at General Term, said: "The sole authority for the proceeding before Justice WALSH is the charter of the city of Brooklyn. The relator, for the purpose of proving her case, started with the assessment roll. But the charter requires several preliminary proceedings to be taken before the assessors acquire authority to make out the assessment. We think the omission of the relator to give proof of the facts on which the jurisdiction of the assessors depended was fatal to her right to recover. For it is a fundamental rule that a man cannot be divested of his property for the non-payment of a tax without proof of a strict compliance with all the material provisions of the statute which authorized the imposition of the tax. I have been unable to find any provision of the charter which makes any act or thing presumptive evidence of the regularity of the proceedings, antecedent to the assessment roll, and none has been pointed out. The provision of section 10 of title 8 of the act of 1873, chapter 863, relates only to the proceedings had for the sale. We think also that it was incumbent on the relator to prove the service of the written notice of the sale provided for by section 6 of title 8 of said act of 1873. The time to redeem would begin to run upon filing the requisite affidavit of such service, provided the notice was in fact served, but not otherwise. The affidavit was not legal proof of such service.” Charles H. Otis, for the relator. Wm. Sullivan for Horatio S. Stewart, the tenant, respondent. Opinion by GILBERT, J. Present-BARNARD, P. J., GILBERT and DYKMAN, JJ. Judgment and proceedings affirmed, with costs. SECOND DEPARTMENT, SEPTEMBER TERM, 1880. SIDNEY A. ACKLEY, RESPONDENT, v. SIDNEY L. SEAMAN AND OTHERS, APPELLANTS. Judgment reversed and order of reference vacated, and new trial granted at Circuit. Opinion by BARNARD, P. J. JAMES BIGLER AND OTHERS, RESPONDENTS, v. WILLIAM PINKNEY, SURVIVOR, &C., APPELLANT. Judgment affirmed, with costs. Opinion by GILBERT, J. MARY WRIGHT, APPELLANT, v. GEORGE M. TERRY AND Exception overruled, and judgment for the defendant. ADALINE KILLMER, APPELLANT, v. JOHN A. COON, RESPONDENT. Order of February 7, 1880, affirmed, with costs and disbursements. Order of April 3, 1880, affirmed, with costs and disbursements. Opinion by DYKMAN, J. HARRIET B. BERDELL v. ROBERT H. BERDELL. Order affirmed, with costs and disbursements. Opinion by DYKMAN, J. JOHN L. BERGEN AND WIFE, RESPONDENTS, v. MARY WYCKOFF AND OTHERS, DEFENDANTS, IMPLEADED WITH FRANK CROOKE, PURCHASER AND Appellant. Order affirmed, with costs and disbursements, except as to that part of order which directs attachment, which part is stricken out. Opinion by BARNARD, P. J. JAMES H. WELLES, RESPONDENT, v. OLIVER DOWNS, Order granting costs reversed, with costs and disbursements. SECOND DEPARTMENT, SEPTEMBER TERM, 1880. GEORGE S. WRIGHT, APPELLANT, v. ABBIE J. FLEMING AND OTHERS, RESPONDENTS. Order affirmed, with costs and disbursements. Opinion by GILBERT, J. JOHN P. HAWKINS, RESPONDENT, v. DANIEL H. TERRELL AND ALMERON WHITEHEAD, APPELLANTS. Order of April 5, 1880; order of April 16, 1880; order of April 22, 1880, affirmed, with costs and disbursements as of one appeal. Opinion by DYKMAN, J. HORACE SEAMAN, RESPONDENT, v. JACOB BALDWIN, APPELLANT. Order affirined, with costs and disbursements. Opinion by BARNARD, P. J. TITUS B. ELDRIDGE, RESPONDENT, v. THE NEW YORK & BRIGHTON BEACH RAILWAY COMPANY, APPEL LANT. Order affirmed, with costs. ABRAHAM LOTT, ADMINISTRATOR, &C., RESPONDENT, v. FRANK CROOKE, EXECUTOR, &c., APPELLANT. Judgment and order confirming report of referee affirmed, with costs. Opinion by BARNARD, P. J. THE CITY NATIONAL BANK OF POUGHKEEPSIE, APPELLANT, v. WILLIAM PHELPS, RESPONDENT. Judgment affirmed, with costs. Opinion by GILBERT, J. THE PEOPLE OF THE STATE OF NEW YORK ex rel. Judgment reversed, without costs. SECOND DEPARTMENT, SEPTEMBER TERM, 1880. BENJAMIN WOOLLEY, AS EXECUTOR, &c., APPELLANT, v. SARAH E. WOOLLEY AND MINOR ONDERDONK, RESPONDENTS. Decree of surrogate affirmed, with costs to both parties out of the estate. Opinion by BARNARD, P. J. THE PEOPLE OF THE STATE OF NEW YORK ex rel. ELIZABETH F. FLOYD AND SARAH A. VINGAT v. ROBERT L. PETTY AND OTHERS, HIGHWAY COMMISSIONERS, &c., RESPONDENTS. Order affirmed, with costs. DARIUS C. DAVISON, PLAINTIFF, v. OLIVER BRISBIN, Judgment for defendant upon submitted case, with costs. SARAH A. PARISH, EXECUTRIX, &c., RESPONDENT, v. DANIEL W. SMITH, Appellant. Order granting new trial reversed, with costs, and judgment for defendant for $1,436, with costs. Opinion by DYKMAN, J. EBENEZER KELLUM, AS SUPERVISOR, &c., RESPONDENT, v. JOSEPH W. CLARK, JAMES WHALEY AND WILLIAM MCFARLAND, APPELLANTS. Judgment affirmed, with costs. Opinion by GILBERT, J. THE KNICKERBOCKER LIFE INSURANCE COMPANY, Opinion by BARNARD, P. J. |