LENNAN, P. J., dissenting on the ground that as matter of law plaintiff's intestate was guilty of contributory negligence, and that, therefore, under the authority of Rider v. Syracuse Rapid Transit Railway Co., 171 N. Y. 139, 63 N. E. 836, 58 L. R. A. 125, defendant was not liable because of the failure of its engineer to exercise ordinary care and prudence, which was the only issue submitted to the jury bearing upon defendant's negligence. NEW PUBLICATION CO. v. STERN et al. SAME v. ZEISLER. (Supreme Court, Appellate Term. February 9, 1911.) 1. APPEAL AND ERROR (§ 927*)-REVIEW-DIRECTED VERDICT. Upon appeal from an order directing a verdict for defendant, it must be assumed that the evidence offered by plaintiff established the facts it purported to prove, if such evidence was admissible. [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. § 3748; Dec. Dig. § 927.*] 2. CONTRACTS (§ 261*)-RESCISSION-GROUNDS-BREACH OF CONTRACT. Where plaintiff agreed to publish defendant's advertisement monthly, in consideration of a certain sum, payable monthly, upon defendant's failure to pay such monthly installments when due, plaintiff could rescind, and recover the amount due on the contract up to the time publication was discontinued. [Ed. Note. For other cases, see Contracts, Cent. Dig. §§ 1174-1180; Dec. Dig. § 261.*] 3. CONTRACTS (§ 262*)-RESCISSION-Waiver. That plaintiff, who agreed to publish advertisements for defendant for a certain period in consideration of a certain sum payable monthly, did not take advantage of prior breaches by defendant in failing to pay installments, did not waive plaintiff's right to rescind for a subsequent breach. [Ed. Note. For other cases, see Contracts, Cent. Dig. §§ 1181-1183; Dec. Dig. § 262.*] 4. CONTRACTS (§ 267*)-RESCISSION-MOTIVE. Where defendant breached his contract to pay plaintiff a certain sum in monthly installments for publishing an advertisement by failure to pay several installments when due, plaintiff could rescind and discontinue publications, and recover the installments due for services already rendered, irrespective of what motive induced him to do so, and that plaintiff was then induced to discontinue defendant's advertisement by the request of wealthier advertisers would not defeat recovery. [Ed. Note. For other cases, see Contracts, Dec. Dig. § 267.*] Appeal from Municipal Court, Borough of Manhattan, First District. Actions by the New Publication Company against Elias M. Stern and another, doing business as the U. S. Tire Company, and against Louis Zeisler, doing business as the Excelsior Tire Company. From judgments in each case for defendant on a directed verdict, plaintiff appeals. Reversed, and new trial ordered. Argued before HENDRICK, LEHMAN, and DELANY, JJ. *For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes Clarence J. Shearn (MacDonald De Witt, of counsel), for appellant. Stackell & Louis, for respondents. DELANY, J. The above-entitled causes were tried together; the main facts being the same as to both defendants. The actions were brought, after alleged breaches of contract by the defendants, to recover the agreed price or value of inserting certain advertisements of defendants' wares in plaintiff's monthly publication. At the close of the case each party asked for the direction of a verdict, and the court gave judgment for the defendants. The plaintiff appeals therefrom to this court. The essential facts are as follows: The plaintiff entered into an agreement with each of the defendants which reads: "You are hereby authorized to insert our advertisement in Motor, to occupy one inch or more space, for twelve consecutive insertions, for which we agree to pay yearly rates dollars per issue payable monthly; 5% cash discount if paid by the 10th of the month, 30 days net. Advertisement to commence March issue, May issue, respectively." In accordance with this agreement the plaintiff published the advertisements regularly until the August number, when the advertisements failed to appear. At that time each defendant was in arrears in the payment of the monthly installments for several months. The plaintiff thereafter sued for the amount of the arrears at the agreed monthly price as the value of the service rendered up to the date of the discontinuance, on the ground that defendants had committed a breach of the condition of the contract and thus absolved the plaintiff from further performance of it. The defendants, however, contend that there was no breach of the condition on their part, because there was no notice to them by the plaintiff that, if the arrears were not paid, it would consider their nonpayment a breach and discontinue the publication of their advertisements, and,. furthermore, that plaintiff discontinued the advertisements, not because of the nonpayment of the installments, but because it desired to please wealthier rivals of the defendants in the same business, who objected to the insertion of their advertisements in plaintiff's publication. The trial judge admitted evidence, over objection and exception, to the effect that one Hildreth, who solicited and made advertising contracts for plaintiff, had said, after the making of the contracts, but before the discontinuance of the publication of the advertisements, that he was "going to hold out" as long as he could against the influence of these objectors, and had also said, after the discontinuance, that it was done because of their pressure. Hildreth denied making such statements; but, inasmuch as there was a motion for the direction of a verdict, and no request to go to the jury on the fact, it must be assumed, if this evidence was admissible, that it established the fact. The trial judge sets forth his theory of the law of the case in deciding for the defendants. He says: "It does not appear to me from the evidence that these advertisements were discontinued because of the nonpayment of the previous amounts due on the contracts made, respectively, by plaintiff with these defendants. The tiff did not exercise as against either one of these defendants the right to claim the contract abrogated because of the nonpayment within 30 days of the amounts which were due on the contract. That being so, the contracts in my judgment were not broken by the defendants, but were broken by plaintiff for reasons which do not appear in the contract itself; and, the contract having been broken by failure of the plaintiff to insert the advertisements subsequent to the time for which it seeks to collect and forming part of the yearly contract, it cannot recover in this action." I think in this the learned court committed error. When one contracts to do certain acts for a stated period, he is bound ordinarily for the full time of the contract; for as to time the contract is entire. But when the performance of services is conditioned on the payment of money in installments at fixed times in the interim, he may, on the failure of the other party to make such payments according to the terms, elect to consider the condition as broken, and is thereafter relieved from further performance on his part. He is then at liberty to sue for the value of the work done, and is entitled to recover therefor. The defendants in these actions, to insure their right to the performance on the part of the plaintiff, should have fulfilled the condition imposed on them; and, since they failed, the plaintiff had the right to treat their failure as a breach. In these cases there were several occasions when defendants failed to pay installments; but plaintiff did not assert its rights to declare a breach. This, however, was no waiver of its right to do so, and defendants cannot consider the leniency of the plaintiff as increasing their rights or plaintiff's burdens under the contract. Ferree v. Wilson (Com. Pl.) 19 N. Y. Supp. 209. On the instant the condition was unfulfilled, plaintiff might consider the contract broken and sue for the value of the services performed. Tichenor v. Bruckheimer, 40 Misc. Rep. 194, 81 N. Y. Supp. 653; Strack v. Hurd, 28 Abb. N. C. 142, 16 N. Y. Supp. 566, and cases cited; Ferree v. Wilson, supra; Penniman v. Lagrange, 23 Misc. Rep. 653, 52 N. Y. Supp. 27; McKillop Walker & Co. v. N. Y. Prep. School, 91 N. Y. Supp. 338; Flaherty v. Miner, 123 N. Y. 382, 25 N. E. 418. The cases cited in respondents' brief which seem to require notice before declaring a breach are those wherein the courts have recognized some equities and endeavored to protect them against foreclosure; for instance, an interest in chattels conditionally sold, or the like, and where the very nature of the case required that notice be given. The injection into this case of the motive of the plaintiff for discontinuing the publication of defendants' advertisements was improper, and the admission of the testimony on this point over objection and exception was error. There is, therefore, only one conclusion to be reached. Defendants having failed in fulfillment of the condition, the plaintiff, without any other act on its part, could at its option elect to consider the contract broken. It is immaterial what motive impelled the plaintiff to take this course. It was its right, and it exercised it; and thereafter it was entitled to recover the value of the work done before the breach, irrespective of its motive. Judgment reversed, and new trial ordered, with costs to the appellant to abide the event. All concur. In re THAYER AND ARDEN STREETS IN CITY OF NEW YORK. (Supreme Court, Appellate Division, First Department. February 3, 1911.) MUNICIPAL CORPORATIONS (§ 467*)-PUBLIC IMPROVEMENT-ASSESSMENT-DETERMINATION OF AMOUNT. Under Greater New York Charter (Laws 1897, c. 378) § 980, providing that the commissioner of assessment shall in no case assess any house or lot more than one-half its value as valued by him, he may, in valuing the property for an assessment, take into consideration the enhancement in the value of the property by reason of the improvement and make an assessment not exceeding one-half the value of the property as so enhanced. [Ed. Note. For other cases, see Municipal Corporations, Cent. Dig. §§ 1110, 1111; Dec. Dig. § 467.*] Ingraham, P. J., dissenting. Appeal from Special Term, New York County. In the matter of the application of the City of New York to acquire title for the opening and extension of Thayer and Arden Streets. From an order of the Special Term, confirming a supplementary report of the commissioners of assessment, an appeal is taken. Affirmed. Argued before INGRAHAM, P. J., and MCLAUGHLIN, MILLER, CLARKE, and DOWLING, JJ. Samuel Untermyer, for appellant. DOWLING, J. This proceeding was before the court for review upon an appeal from an order confirming the reports of the commissioners of estimate and of the commissioner of assessment, and, while the order was affirmed as to the former, it was directed that the latter report be returned to the commissioner of estimate for further return, the court saying (138 App. Div. 255, 122 N. Y. Supp. 954): "We think the court should be advised of the date taken by the commissioner of assessment for his determination of the value, for if it was as of the date of the estimate for damages, we think the report must, upon this record, be sent back to the commissioner for readjustment of the assessment for benefit." That course having been followed, the commissioner of assessment reported that he valued each piece of property assessed by him as of the date of the report, to wit, May 24, 1909, and that in making such valuation he took into consideration the enhancement in value of such property by reason of this improvement, and that in no case did the assessment for benefit exceed one-half the value of the property as valued by him. Originally the consolidation act (chapter 410, Laws 1882, § 981) provided as follows: "Commissioners for making estimates and assessments for any improve ments, authorized by law to be assessed upon the owners or occupants of houses and lots, or improved and unimproved lands, shall in no case assess any house, lot, improved or unimproved lands more than one-half the value of such house, lot, improved or unimproved land as valued by the tax commissioners." The effect of this was to prevent the commissioners from taking into consideration in valuing land for assessment purposes the enhanced value thereof caused by the new conditions which the improvement itself would produce. To meet this situation when the Greater New York Charter was enacted it provided (chapter 378, Laws 1897, § 980): "The said commissioner of assessment shall in no case assess any house, lot, improved or unimproved lands more than one-half of the value of such house, lot, improved or unimproved lands as valued by him." This is no restriction upon the manner in which the commissioner of assessment shall arrive at the values which he determines, and he is not required to take the valuation of the commissioners of estimate as his own, any more than he is required to adopt the valuation of the tax commissioners. The question whether the commissioner had the right, in determining the value of the property sought to be assessed, to take into consideration the enhanced value of the land due to the improvement itself, was decided in Matter of Avenue D, 122 App. Div. 416, 106 N. Y. Supp. 889 wherein it was said: * "It is claimed by the appellants that the commissioners violated this provision of the charter by imposing an assessment on the lands taken greater than one-half their value. If the lands not taken are to be figured by the same rate per square foot as fixed by the award for the land actually taken for the street extension, then the contention of the appellants is right. * The respondent contends that there is no warrant in law for the contention that the commissioners must place the same value on the lands abutting Avenue D as upon that part of the tract taken for opening that street. On the other hand, it is urged that the instant the title to Avenue D was transferred to the city the abutting lands took a new and additional value, which the commissioners were justified in considering in fixing the value of the lands to be assessed. It is quite manifest that the commissioners must have pursued this course to justify the assessment actually made. The section above quoted limiting an assessment to not 'more than one-half of such house, lot, improved or unimproved land, as valued by them' is silent as to the method which the commissioners should employ in fixing the valuation whether as determined before or after the street extension had been made. * We, therefore, conclude that commissioners in determining the value of the parcels untaken must determine and fix that value on what the parcels are worth with the street extension made, and the title to the land within the street lines vested in the city of New York. The commissioners, therefore, having been lawfully justified in pursuing this method, and having certified in their report that they have followed and complied with the directions of the statute under which they acted and limited 'our assessment for benefit to one-half the value of the lots or parcels of land lying within said area or district of assessment as valued by us, pursuant to the provisions of section 980 of the Charter of the City of New York,' and nothing appearing in the record to the contrary in this case, under the authority of Matter of Whitlock Avenue, 178 N. Y. 421, 70 N. E. 924, we conclude the order appealed must be affirmed with costs." So in the Matter of Whitlock Avenue, 51 App. Div. 437, 64 N. Y. Supp. 720, the court held: "An argument has been made by the respondents respecting the unconstitutionality of the provisions of the law which would allow, in the making of an assessment for benefit, the taking into consideration of any benefit, accruing after the date at which the title vested in the city; but we regard this case as falling within the recognized principle of law that assessments for benefit in improvements of this character are within the general power |