Tho People v. Mitchell. sums shall be raised by taxation, and the purposes to which the money shall be applied. And the authority to raise money by the exercise of the taxing power is not in conflict with the constitutional provisions protecting private property from seizure. (Town of Guilford v. Supervisors of Chenango, 3 Kern. 143. The People v. The Mayor of Brooklyn, 4 Comst. 419.) Nor is there any thing in the constitution prohibiting the exercise of the taxing power for a public purpose upon a particular district or locality, or taking away from the legislative discretion the mode in which it shall be exercised. (Grant v. Courter, 24 Barb. 232.) The power to impose a tax for local improvements has been repeatedly exercised in numerous cases. (See cases already cited; also Bank of Rome v. The Village of Rome, 18 N. Y. Rep. 38; Benson v. The Mayor of Albany, 24 Barb. 252; Thomas v. Leland, 24 Wend. 65.) If the legislature had a right to pass the act authorizing the bonds to be issued, as is not doubted, then under the authorities cited it had the power to make it the duty of the town officers to issue the bonds without requiring the consent of a portion of the tax payers. Such a power existing originally, I think the condition requiring the consent to be given was merely a restraint upon the exercise of the power conferred, which could be removed, and the failure to procure the consent of the tax payers would not impair or control the power of the legislature to make the act absolute and imperative. They would have a right to modify or change the act. To say that the consent of the tax payers was not essential to its validity or effect, and such change or modification would interfere with no contract, nor would it affect any vested rights. The act authorized the tax payers to determine whether the bonds should be issued, and conferred upon them certain authority usually vested in the legislature, and the legislature had full power and authority to say that the bonds should be issued and be valid and effectual although the tax payers did not consent, (13 N. Y. Rep. 143.) The People v. Mitchell. If the principles I have laid down are correct then it is quite clear that the legislature had a right to provide what should be the effect of the affidavits of the consent of the tax payers when filed as provided by the act, and such a provision did not interfere with any vested rights acquired under the act of 1856, and the amendments to the same. It may also be observed, in this connection, that the act of 1864 did not interfere with the consent of the tax payers, or their consent filed with the clerk. It merely affected the remedy, without changing their contract. It simply established a rule of evidence as to the effect of the affidavits filed. This was within the scope of the powers of the legislature, and does not affect a contract. (Stocking v. Minot, 3 Denio, 274. Neass v. Mercer, 15 Barb. 318. Hand v. Buller, 2 Kern. 541.) The observations made as to the effect of an act of the legislature altering one already made, in no way touches the question as to the right of parties who have been injured by the alteration of a written instrument affecting their rights seeking redress through a legitimate and proper channel. This is another and a different question, bearing upon the case now presented, to some extent at least, and entitled to consideration. The act of 1864 makes the affidavits proof of the consent, and thereby establishes a rule of evidence as to their effect, without, in any way, interfering with any supposed rights of a party to pursue the proper remedy to test their validity and force. That act contains no provisions which interpose obstacles to an application to the proper authority to strike from the files an instrument which was not signed by the parties, or which has become nugatory by reason of material alterations made since it was executed; nor does it in any way prevent an action for that purpose, or to alter or reform the instrument itself. The effect of the enactment was to declare, simply, that the affidavits filed, so long as they remained upon the record, should be final and conclu The People v. Mitchell. sive. To get rid of them, and to destroy the effect of them, a proceeding should be especially instituted for that purpose. They must stand as evidence, under the statute, until vacated or set aside, and can not be assailed by affidavits upon this motion. They are final and conclusive, and if it was desired to avoid them and the effect arising from them, the parties interested must institute a proceeding to correct the record. (The People v. Zeyst, 23 N. Y. Rep. 140.) It is said that the statute authorized only an absolute subscription, and that these affidavits show only a conditional one. I think that the condition attached to the consent of the tax payers, authorizing a subscription, does not attach as a condition to the subscription to be made. The consent merely imposed terms upon the subscription to be made, without affixing any qualification to it. It authorized the commissioners to subscribe upon the happening of a certain contingency, but the subscription itself was to be absolute and unqualified. They only had power to act when a certain amount had been subscribed by others, which was merely establishing the time when they should perform the act, without imposing any limitation upon it. This clearly would not be a conditional subscription, but an absolute one. The discussion already had, covers all the objections urged, and as the relators have made out a case for a peremptory mandamus the order appealed from must be affirmed, with costs of appeal. INGALLS, J. Concurred. HOGEBOOM, J. was for a modification of the order, and an alternative mandamus. Order affirmed. [ALBANY GENERAL TERM, September 18, 1865. Hogeboom, Miller and Ingalls, Justices.] MARY THOMPSON vs. JAMES I. HALL, impleaded with James Thompson. Where the promise contained in a promissory note is absolute, parol evidence can not be received for the purpose of incorporating into the contract a condition which might affect, or change the character of the contract between the parties. This rule of evidence has been expressly applied in cases of sureties. Where a witness, in answer to the question whether T. was able to pay his debts, at a time specified, stated that he was not, and then proceeded to state numerous facts touching the property of T. and his indebtedness, showing an intimate acquaintance with the condition of T. and his utter insolvency; Held that no error was committed in receiving this evidence. A surety is not discharged by reason of the neglect of the creditor to prosecute the principal debtor, when requested to do so, by the surety, if the principal was insolvent at the time, and unable to pay his debts, and continued so, ever afterwards. In an action against a surety, he can not avail himself of the neglect of the creditor to prosecute the principal debtor under the provision of the Code permitting equitable defenses to be made. It is a general rule that mere indulgence, on the part of the creditor, and neglect to prosecute the principal, will not discharge the surety. A PPEAL from a judgment entered upon the decision of a referee. The action was upon a promissory note, made by the defendant, James Thompson and the defendant Hall as his surety, dated December 11, 1854, for $284, payable one year from date, with interest. From the report of the referee, dated March, 1864, it appears that James Thompson paid upon the note, in February, 1857, $225.57, and that the balance upon the note at the date of the report, was $153.19, for which sum judgment was ordered against Hall. Hall signed the note as surety for the defendant Thompson, with the knowledge and at the request of the plaintiff, who was the mother of the principal debtor. That in July, 1858, Hall requested the plaintiff to proceed and collect the note by action, telling her that James was then good, and the note collectable. The plaintiff refused to prosecute the note, and neglected to take any measures for its collection until September 6, 1860, when this action was commenced, James Thompson v. Hall having left the state, was not served with the summons, in this action. The referee also reports that when the request to collect the note was made, James resided in this state, and was possessed of property liable to execution; and that subsequently debts of a larger amount than the note were collected of him, after judgment and execution; but that in fact, at the time the request was made, James was insolvent, and unable to pay his debts, which were considerably greater than the value of all his property, and that he continued insolvent. Some exceptions were taken upon the trial, which are sufficiently noticed in the opinion. Comstock & Healy, for the plaintiff. By the Court, MARVIN, J. The counsel for the defendant offered to prove that the plaintiff requested him to sign the note as surety for James; that he declined, stating that the note was to run a year, and he thought the plaintiff would not collect it when due, as she would from a stranger. That the plaintiff then promised that if Hall would sign the note she would collect it promptly when it should become due, if it was not paid; and further, that she would not dispose of the note. That he, Hall, answered that he would sign the note if she would collect it promptly, when due, and he would sign it on no other condition; that the plaintiff again assented, and agreed to such condition, upon which Hall signed the note. This offered evidence was objected to, upon the grounds: 1. That any verbal agreement or understanding was merged in the note; 2. That it contradicts the contents of the note. The objection was sustained, and the defendants. excepted. No rule of evidence is better settled than that which rejects oral evidence to contradict or vary the written contract between the parties, or the legal effect of the written instru |