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sufficient to pay the estimated expense of executing such contract as certified by the officer making the same?

"XXVIII.-Should property of The City of New York, such as docks, wharves and market places, which are leased and rented to private individuals and corporations, and from which revenue is derived by the City, be included in the assessed valuation of the real estate of such City, subject to taxation, for the purpose of determining the debt incurring capacity of such City, within the terms of Article VIII, section 10, of the Constitution, or is the same held for a public use within the meaning of section 3 of Article I of the Tax Law, as amended (Laws 1896) ?

"XXIX. Should bonds, authorized by chapter 208 of the Laws of 1906, to be issued to provide for deficiencies in taxes of the year 1904 and prior thereto, deemed uncollectible on January 1, 1905, but not actually issued, be considered an indebtedness under the constitutional provision?

"XXX.- Does the amount payable on contract liability for work and labor to be performed and materials to be furnished under contracts for public improvements of said City of New York, to be paid for as such work is performed or materials furnished from time to time from the proceeds of bonds, become an indebtedness of The City of New York within the provisions of, Article VIII, section 10, of the Constitution of the State, when such contract has been executed by the head of the appropriate department and certified by the Comptroller under section 149 of the Greater New York Charter when the work thereunder shall have been actually performed or the materials required thereby shall have been furnished?

"Should there be deducted from the amounts of the indebtedness of said City of New York, ascertained under Article VIII, section 10, of the State Constitution, the following items:

"XXXI.-The holdings of the various sinking funds of corporate stock other than bonds not included in computing the City indebtedness under the Constitution.

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"XXXII. The holdings of the various sinking funds of bonds not included in computing the City indebtedness under the Constitution.

"XXXIII.- The holdings of the various sinking funds of

cash.

"XXXIV.- Should bonds which are not to be considered as 'indebtedness' under the Constitution, and which are held in a sinking fund created for the redemption of indebtedness which is within the constitutional provision, be deducted in ascertaining the borrowing capacity of the City?

“XXXV.— The holdings of the various sinking funds of securities, other than those issued by the City.

"XXXVI.—The annual installments included in the Budget for 1908 and required to be paid into the Sinking Fund which is unpaid at the time of computing the City's indebtedness.

"XXXVII.— General fund bonds of The City of New York held in the Sinking Fund for the Redemption of the City Debt, No. 1.

"XXXVIII.—Cash on hand in funds against which no contracts are registered by the Comptroller.

"XXXIX.-- Cash on hand in funds against which contracts are registered by the Comptroller.

"XL.- Bonds issued to pay debts incurred for the supply of water since January 1, 1904.

“XLI.— Unallotted proceeds of bonds of the City of New York issued to pay debts incurred, which are included in computing the indebtedness of the City of New York under the constitutional provision.

"XLII.- Unallotted proceeds of bonds of the City of New York issued to pay debts incurred, not included in computing the indebtedness of the City under the constitutional provision.

"XLIII.-- Should bonds outstanding June 30, 1908, maturing between June 30, 1908, and January 1, 1909, payable not from sinking funds, but directly from the City's taxes, and for the redemption of which an appropriation was contained in the Budget of 1908, but which have not act

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ually been redeemed, be deducted from the indebtedness of the City in order to determine its borrowing capacity within the meaning of the constitutional provision ?”

The facts, so far as material, are stated in the opinion.

f;

Jeremiah T. Mahoney and Robert F. Wagner for Jefferson M. Levy, appellant. The amount which the city of New York is under obligation at any time to pay for lands for public purposes, title to which has vested in the city, must be included as indebtedness within the purview of the Constitution. (Matter of City of New York, 118 App. Div. 224 Forster v. Scott, 136 N. Y. 577.) All "revenue bonds" issued in anticipation of the collection of taxes for amounts actually contained, or to be contained, in the taxes for the year when such certificates or revenue bonds are issued and payable out of such taxes, should not be included in ascertaining the power of the city to become further indebted. All revenue bonds issued against and payable from the collection of taxes of years other than the year in which they were issued, must be included in ascertaining the power of the city to become further indebted. All certificates of indebtedness or revenue bonds issued in anticipation of the collection of taxes which were not retired within five years from the date of issue, must be included in ascertaining the power of the city to become further indebted. (Gibson v. Knapp, 21 Misc. Rep. 499.) "Assessment bonds must be included as indebtedness in determining the constitutional borrowing capacity of the city. (1 Abb. on Mun. Corp. § 152; Quill v. Indianapolis, 124 Ind. 292; Kelly v. Minneapolis, 63 Minn. 125; Kronsbein v. Rochester, 76 App. Div. 494; Fowler v. Superior, 85 Wis. 411.) The obligation incurred by the city of New York upon entering into a contract (excluding all contract liability incurred for the purposes of water supply since January 1, 1904) for public improvements, for the payment of which provision has been made, not by an appropriation of current revenues, but by an authorization of the issue of city bonds (other than revenue bonds), is an indebtedness within the meaning of article 8,

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section 10, of the State Constitution. (Lynch v. Mayor, etc., 2 App. Div. 213; Litchfield v. Ballou, 114 U. S. 190; Lake County v. Rollins, 130 U. S. 662; Doon Township v. Cummins, 142 U. S. 366; McRae v. County of Cochise, 44 Pac. Rep. 299; Wallace v. San Jose, 29 Cal. 180; People ex rel. Seeley v. May, 9 Col. 80; Hudson v. Marietta, 64 Ga. 286; Prince v. Quincy, 105 Ill. 138; Prince v. Quincy, 128 Ill. 443; Sackett v. New Albany, 88 Ind. 473.) Judgments for the payment of which provision was made under section 188, subdivision 3, of the Greater New York charter, and judgments for which no provision for the payment of which has been made under section 188, subdivision 3, of the Greater New York charter, and judgments which, under the provisions of section 188, subdivision 3, of the Greater New York charter, are chargeable against the various counties within said city, are all indebtedness within the purview of the Constitution. (Stone v. Chicago, 207 Ill. 492.) The proceeds of bonds issued to pay debts incurred, which are included in arriving at the indebtedness of the city under the Constitution, which proceeds have not been apportioned, allotted or transferred to the various accounts, on account of which said bonds were authorized to be sold, should be deducted from the gross indebtedness of the city in ascer taining the borrowing capacity of the city. (Kronsbein v. City of Rochester, 76 App. Div. 494; Powell v. City of Madison, 107 Ind. 106; City of Poughkeepsie v. Quintard, 136 N. Y. 275; A. L. Ins. Co. v. Lyon Co., 44 Fed. Rep. 329.)

Alonzo G. McLaughlin and Matthew W. Wood for David Meyer, appellant. The learned referee properly accepted as "real estate" for the purpose of figuring the constitutional debt incurring capacity of the city of New York "special franchises" assessed and valued as real estate in the assessment roll of 1907. (Gerard on Titles [4th ed.], 19, 100; Joyce on Franchises, 26; Kronsbein v. City of Rochester, 76 App. Div. 494; People v. Tax Comrs., 174 N. Y. 417; People v. O'Brien, 111 N. Y. 1; People v. Cassidy, 46 N. Y. 46;

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Smith v. Mayor, etc., 68 N. Y. 552.) Assessed value of the real property of the city of New York rented to private individuals and corporations should be added to the assessed value of real estate for the purpose of determining the constitutional borrowing capacity of the said city. (People ex rel. Dunkirk v. Batchelor, 53 N. Y. 128; U. S. v. R. R. Co., 17 Wall. 322; Cooley on Taxn. 173; Dillon on Mun. Corp. 571.) Contract obligations for public improvements are not to be deemed present debts but a contract by which a future debt may be created and should not, therefore, figure in ascertaining the city's debt limit. (Walla Walla City v. Walla Walla Water Co., 172 U.S. 1; V. W. W. Co. v. Vicksburg, 185 U. S. 65; Dillon on Mun. Corp. § 210; Abbott on Mun. Corp. § 152; Higgins v. City of San Diego, 45 Pac. Rep. 824; Crowder v. Town of Sullivan, 128 Ind. 486; Fowland v. Town of Frankton, 142 Ind. 546; Grant v. City of Davenport, 3 Iowa, 396; Board v. City of Hopkinsville, 95 Ky. 239; Niles Water Works v. City of Niles, 59 Mich. 311; Saleno v. City of Neosho, 127 Mo. 627; L. W. & E. L. Co. v. City of Lamar, 128 Mo. 188; Davenport v. Kleinschmidt, 6 Mont. 502.) Where title to lands under condemnation has vested in the city and the value of the land so vested has not been fixed by the commissioners the claim of the owner of the land is for damages ex delicto and until fixed and liquidated is not a debt within the meaning of the constitutional provision. (Wade v. Oakmont Boro, 165 Penn. St. 479; Appeal of City of Erie, 91 Penn. St. 398; Dillon on Mun. Corp. § 587c; Mills on Em. Domain, 30; Lewis on Em. Domain, ch. V.) City bonds which have been purchased with the funds of and are held by the city's sinking funds are no longer considered "existing indebtedness" in determining the right of the city to become further indebted. (Bank for Savings v. Grace, 102 N. Y. 313.) The proper rule is that cash in the sinking fund is a proper deduction in determining the limit of bor. rowing capacity of a city under the Constitution. (Stone v. Chicago, 207 Ill. 492; Kelly v. Minneapolis, 63 Minn. 25: Kronsbein v. Rochester, 76 App. Div. 494; Williamson v.

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