Opinion by PARKER, J. when the suit was brought, and that it was incompetent for Montgomery to make any transfer to himself, were also properly regarded as not well taken; the first as involving a question of fact for the jury, and the other as not covering the whole of the Plaintiff's claim. The objection to the introduction of Grant's testimony on the former trial was properly overruled. It was but the common case of reproducing the testimony of a deceased witness. I see nothing in the objection that he was a party. He was also a witness, and therefore within the rule allowing proof of what he testified to be given. The inquiry of the witness, Montgomery, whether he received any directions from Grant in regard to the property, immediately after the delivery of the assignment, was relevant and proper as part of the res gesta. The question to the same witness, as to what was done with moneys which, he had stated, were realized from a portion of the assigned property, was also properly allowed. I see no error in the rulings in regard to the questions put to the witness, Lund, as to his delivery, when he left, of the stock, &c., at the machine shop, to Montgomery, and as to his ever again exercising any acts of ownership over the property. This was clearly pertinent to the question which was litigated, whether Montgomery owned the property or any part of it. The offer of the Defendant to prove that the sheriff of Westchester levied upon the property in question as the property of the Steam Saw-mill and Machine Company, after this suit was brought, was wholly irrelevant and immaterial, and was properly excluded. The Court was requested to charge "that if the sheriff (Defendant) was found in the actual possession of the property levied on under the Booth execution, the Plaintiff must prove a demand of said property, and refusal to surrender it, before he can recover" what was refused. If the property belonged to the Plaintiff, the taking it out of the possession of Montgomery, who was the Plaintiff's agent, Opinion by PARKER, J. using it in the Plaintiff's business, in hostility to the Plaintiff's right to it, was a wrongful taking as against the Plaintiff (Clark v. Skinner, 20 J. R., 465); and no demand was necessary (Cummings v. Vorce, 3 Hill, 282; Dunham v. Wyckoff, 3 Wend. 280). The request was therefore properly refused. As to the Defendant's request, to charge that Montgomery, while acting as president of the Machine Company, could not become the purchaser of its property, if objected to by any stockholders or creditors of the Company, there was nothing in the evidence calling for such instruction to the jury, nor for anything more on that subject than the Court had already said to them; for they had been already instructed that, as to all that portion of the property in question which had been transferred to the Machine Company, and which had been acquired by said Company, the title to it remained in the Company at the time of the assignment, and did not pass to Grant, and that Montgomery's interest in such property, at the time of the assignment, was a stockholder's interest only, and that only such interest passed by the assignment, so that the additional instruction requested was entirely uncalled for. The complaint now made by the Plaintiff's counsel, that, under the charge of the Court, it was the duty of the jury to render a verdict for the Defendant as to all the property in question, and that the Court below should, on that ground, have set aside the verdict, is not one which this Court can listen to or consider. The case is not open to us for an examination of the facts. The finding by the jury that Grant was the owner of that portion of the property in question described as stock and material, and not of that described as tools and fixtures, rendered necessary a more specific description of the two classes. This the Court ordered to be made by directing the complaint to be amended so as to conform to the evidence, and to designate the portion of the property found for the Plaintiff described as stock and material, and the portion found for the Defendant described as tools and fixtures, to which the counsel for the Defendant excepted. And thereupon the Plaintiff did amend the complaint by inserting at Opinion by PARKER, J. the end of the list of articles a list of those which he denominated tools and fixtures, and stated that the residue of said property was known as stock and material. No fault was found with the manner in which the distributing was made and the amendment carried out. I think it was competent for the Court to amend the verdict, as was in effect done for the purpose, not of adding or subtracting, but of specifying in accordance with the evidence, as was done in this case. (Sleght v. Hartshorne, 1 J. R. 149; 1 Sellon's Pr. 480; Archbold's Pr. vol. 1, 215; vol. 2, 275.) Upon the whole case, I am of the opinion that the judgment should be affirmed. Affirmed. JOEL TIFFANY, Statement of the Case. ABRAHAM B. HASBROUCK AND OTHERS, APPELLANTS, v. THE KINGSTON BOARD OF EDUCATION, ELIJAH ELLSWORTH, COLLECTOR, AND CORNELIUS BURHAUS, TREASURER OF THE KINGSTON SCHOOL DISTRICT, RESPONDENTS. THE PEOPLE OF THE STATE OF NEW YORK, APPELLANTS, V. THE SAME DEFENDANTS, RESPONDENTS. Injunction-Tax illegally assessed-Remedy what-Code, § 11. An application for a preliminary injunction is addressed to the discretion of the Court; and although the Appellate Court may require the discretion to be exercised, it will not assume to control such discretion. An order refusing to grant such injunction does not come within subdiv. 2 of § 11 of the Code of Procedure, and is not appealable to this Court. It seems that an injunction cannot legally be granted to restrain the collection of a tax, although illegally assessed; the proper remedy is by action for damages, etc. THESE appeals both embrace the same tax and raise the same questions. They are appeals from orders of the General Term, affirming orders at Special Term, denying motions for temporary injunction to restrain the collection of the same tax, and disbursement of the moneys. The Kingston Board of Education was incorporated by an act of the Legislature, passed in 1863, and amended in 1864 (Laws of 1863, chap. 360; Laws of 1864, chap. 40), for the establishment and maintenance of free public schools in the Kingston school district; and the said act, as amended, provides that the said Board of Education shall have power, and it shall be their duty to raise, from time to time, by tax, to be levied upon all the real and personal estate in the Kingston school district, “such sums as they may determine to be necessary and proper for the payment of the salaries of the superintendent and teachers in the public schools under their charge, repairs of school-houses, fences, out-buildings, and grounds belonging thereto, and all other necessary and contingent expenses for establishing and maintaining the said public schools, and the necessary and contingent expenses of the Board of Education." Statement of the Case. The Board of Education, in the spring of 1866, determined that it was necessary and proper to raise by tax the sum of $22,000, to meet deficiencies of the last, and the expenses of the then current year, for the purpose aforesaid; and thereupon levied and assessed a tax for that sum, and delivered the tax-roll, with the usual warrant for its collection, on the fourth day of June, 1866, to the Defendant, Ellsworth, for its collection. On the 16th of July, 1866, and after nearly $14,000 in amount of the tax had been collected, and a portion thereof disbursed, Abraham B. Hasbrouck and four others, in behalf of themselves and "all other taxable inhabitants and other persons having property liable to taxation in the Kingston school district," commenced the first above-entitled action against the Board of Education, their collector and treasurer, to restrain them from the collection of that part of the tax remaining uncollected, and from paying out, disbursing, and appropriating the moneys collected. At the Special Term of the Supreme Court held in July, 1866, the Plaintiffs in the first-entitled cause applied for a temporary injunction, to restrain the collection of the tax and disbursement of the moneys collected during the pendency of the suit. That motion was denied, and the injunction refused. From that decision an appeal was taken to the General Term of the Third District. The order at Special Term was there affirmed, and from that affirmance an appeal was taken to this Court, and that is the appeal first above entitled. After the denial of the injunction in the first cause, as above stated, an action was commenced in the name of the People, by the attorney-general, containing substantially the same allegations as those contained in the other cause, demanding judgment for a perpetual injunction to restrain the levy, assessment, and collection of any taxes by the Defendants, without the authority of the inhabitants, other than for certain limited purposes, and for those purposes not exceeding $5,000; and to restrain any further proceedings in the collection of the taxes then assessed, and disbursement of the moneys, and for other relief. A motion for a temporary injunction to restrain the collection. |