
    George Leary and Daniel J. Leary, Appellants, v. The City of New York, Respondent.
   Appeal by the plaintiffs from a judgment of the Supreme Court dismissing the complaint on the merits, after trial. The case is in the nature of a test case and involves the right of the defendant city to exact payment of assessments levied upon real estate which is now concededly within the boundaries of the county of Nassau. Judgment affirmed, with costs. There was a failure of proof on the part of plaintiffs despite the opportunity, pointedly made available to them by the prior determination of this court, to adduce such proof on the issue involved. Carswell, Davis and Johnston, JJ., concur; Lazansky, P. J., and Hagarty, J., dissent and vote for reversal and a new trial "with the following memorandum: In our opinion, this action presents but one issue, namely, whether or not the lands in question were in fact located "within Queens county prior to the enactment of the so-called boundary law (Laws of 1928, chap. 802). That determination is dependent upon proof as to the correctness of the location of the previous boundary line in conformity with the description contained in the Greater New York Charter (Laws of 1901, chap. 466). There was no proof at all adduced on this trial other than concessions as to a popular belief as to the location of the boundary line. Such belief may be of some aid if the case is to turn upon a practical construction of the location of the boundary line, but, in and of itself, is insufficient in view of the appellants’ claim, despite the so-called concessions, that the line was incorrectly located.  