The Federal Reporter with Key-Number Annotations, Volume 250: Cases Argued and Determined in the Circuit Courts of Appeals and District Courts of the United States, August-October, 1918. Page: 26
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250 FEDERAL REPORTER
were entered on May 8, 1917, which are those appealed from. These orders
together fixed the equalized assessment of the special franchise assessments
at 60 per cent. of $23,000, or $13,800, and included the taxes of 1915 and
1916. In respect of these two changes the county treasurer now complains,
being satisfied with the order of July 12, 1916. The county treasurer received
the payments required by these orders on May 17, 1917, and on May 21, 1917,
took an appeal from each. The appeal of the receiver was taken later. The
receiver then moved to dismiss the appeal of the county treasurer, on the
ground that by receiving payment in full under the orders of May 8, 1917, he
had waived any right to appeal. Upon his own appeal he urged only three
points: First, that there was no ground for any assessment for special fran-
chise; second, that certain taxes on the private rights of way were illegally
levied on the face of the roll, because not properly distributed between dis-
tricts; third, that no interest or penalties should have been allowed against
Arthur Carter Hume, of New York City, for appellant Hume.
Percy L. Housel, of Riverhead, N. Y., for appellant Tuthill.
Before WARD and HOUGH, Circuit Judges, and LEARNED
HAND, District Judge.
LEARNED HAND, District Judge (after stating the facts as above).
 The appeal of the county treasurer must be dismissed. The gen-
eral rule is well settled that unless there is a separable controversy,
or unless there is some sum to which the appealing party is entitled in
any event, he may not accept the benefit of the decree and later ap-
peal. Chase v. Driver, 92 Fed. 780, 34 C. C. A. 668; Albright v.
Oyster, 60 Fed. 644, 9 C. C. A. 173. There was here no separable con-
troversy, such as existed in Goepel v. Kurtz, 216 N. Y. 343, 110 N. E.
769, Carson L. Co. v. St. Louis & S. F. R. Co., 209 Fed. 191, 126 C.
C. A. 139, and Snow v. Hazlewood, 179 Fed. 182, 102 C. C. A. 448, for
the whole claim turned upon the proper amount of the assessment for
special franchises. Nor was there any sum concededly due to the
county treasurer, since the receiver contended from the outset that
there was no basis for any special franchise tax whatever. Indeed, if
the receiver should have succeeded in his contention below or in this
court, the county treasurer would have to restore the payment which
he has already collected. Nor do we think that the provision in the
opinion, not the decree, covered this question, assuming that the court
below could affect the right to appeal in any way, a point we do not
decide. The opinion only provided that an appeal by the municipal
authorities should not stay their rights to collect their taxes. What ef-
fect the collection of the taxes should have upon the right to appeal was
a very different matter, and one which the District Court did not at-
tempt to determine whatever its power. Indeed, the whole point is
irrelevant, as the opinion of the court is not a part of the decree, and
the provisions of the decree touching appeals has nothing to do with
 Coming, now, to the appeal of the receiver, we think that the
whole proceedings to review the assessments were in fact without ju-
risdiction, and that they should not have been attempted over the ob-
jection of the county treasurer. As to the taxes of 1915 and 1916,
they were assessed after the time when the custody of the res had
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The Federal Reporter with Key-Number Annotations, Volume 250: Cases Argued and Determined in the Circuit Courts of Appeals and District Courts of the United States, August-October, 1918., legislative document, 1918; Saint Paul, Minnesota. (digital.library.unt.edu/ark:/67531/metadc38821/m1/41/: accessed March 28, 2017), University of North Texas Libraries, Digital Library, digital.library.unt.edu; crediting UNT Libraries Government Documents Department.