Volume 10 — New York State Reporter

<p>Pleading—Complaint—Causes op action impeopbbly joined.</p> <p>Causes of action are improperly joined in the same complaint where the-first constitutes a waiver of an element on which the second depends; that is, the first being for money had and received, necessarily waiving the wrongful conversion which the second must allege, being an action for trover.</p>

<p>Appeal from decree and order of the surrogate removing trustee and executrix.</p>

<p>Appeal from a judgment on the verdict of a jury and an order denying a motion for a new trial.</p>

<p>1. Contract—Performance of—What is.</p> <p>The plaintiff agreed for certain commissions fixed upon to get for the corporation, of which this defendant was the president, a party who would enter into a contract with it to take certain of their products, but subsequently objected to the financial standing of the corporation, whereupon the defendant agreed to pay him personally if he would carry out his agreement. The plaintiff having reported that he had a party ready to enter into such contract, this defendant asked for time to reorganize his corporation. Held, that the corporation, of which this defendant was the president, was no party to the contract, and that it was unnecessary to show in an action for the commissions t.,at it had agreed or was willing to perform the agreement. That the defendant was the employer of the plaintiff, and that when the plaintiff had obtained a party willing to enter into the contract, his commissions were earned.</p> <p>'3. Same—Executed—What will not alter position of parties to.</p> <p>Held, that it was no answer to the plaintiff’s claim to say that he had agreed to wait until the reorganization of the company, and that never took place. That his right to commissions had become fixed before that time, and a mere promise to wait, unsupported by any legal consideration, in no way altered his legal position.</p>

<p>Will—Execution of not valid unless testatrix acquainted with THE CONTENTS OP THE INSTRUMENT.</p> <p>Prom the evidence offered in proceedings for the probate of an instruReversing 3 N. Y. State Rep., 213. meat purporting to be the last will and testament of the decedent, it appeared that the decedent was an uncultured and uneducated woman, who, if able to read at all, was so unaccustomed to reading written documents that between the time at which the instrument was handed to her and that at which she declared it her last will and testament, she would have been unable to possess herself of its contents. The evidence tended to show, however, that she might perhaps have read the alleged will afterwards. Held, that unless she knew the contents of the paper at the time of its attempted execution, no valid execution could be made.</p>

<p>Appeal from an order referring the issues in this action)to a referee for trial.</p>

<p>Practice—Appeal—Filing security.</p> <p>When the security requisite to make an appeal effectual, has not by some oversight been given, and where such neglect shall be deemed excusable, the court has the power to permit the omission to be supplied.</p>

<p>Appeal from a judgment recovered at the special term.</p>

<p>1. Examination before trial.</p> <p>A previous order for the examination of the defendant’s treasurer and for the production of their books having been vacated because the books-were in another state and because of an offer to allow them to be inspected where they were. The plaintiff having subsequently asked leave to make such inspection and been refused, and a new order for the examination of said treasurer having been obtained. Held, that the said order of examination should not be vacated upon a renewal of the offer as to its books by the defendant.</p> <p>2. Same—Form of order.</p> <p>The order did not direct the treasurer to he examined as an officer of the defendant, but the affidavits showed that Ms examination was sought as an officer of the defendant. Held, the order was sufficient. That it was only necessary to state the name of the officer.</p>

<p>1. Practice—When leave of court to sue on judgment not necessary under Code Civ. Pro., § 1913.</p> <p>The plaintiff brought the action as the assignee of certain judgments. Held, that not being an original party to the actions in which they were ' recovered she was not precluded by Code Civ. Pro., § 1913 from maintaining an action without first securing leave of the court to commence and prosecute it.</p> <p>2. Pleading—Statute of limitations must be pleaded in an answer— Code Civ. Pro., § 413.</p> <p>The objection that a cause of action is barred by the statute of limitations must be taken by answer, and cannot be taken by demurrer.</p>

<p>Appeal from an interlocutory judgment recovered on trial before the court.</p>

<p>Partnership—Dissolution op—Accounting—Interest on capital— Compensation op partner for services.</p> <p>The allowance of interest on capital must necessarily depend upon the circumstances of the case; ordinarily it is not allowed after the dissolution of the firm. After dissolution, without express stipulation between the partners, one partner cannot demand nor receive compensation for his services on the settlement of the affairs.</p>

<p>Master and servant—Duty of master to furnish suitable tools— Liability of master.</p> <p>It is the duty of the master to furnish the servant with safe appliances for the performance of his duties, and the servant, in the absence of notice to the contrary, has a right to assume that the appliances furnished for his use are safe and suitable. Where the servant suffers injury in consequence of the defective appliances, the master is liable for the damages which he sustains. Following, O’Hálloran v. Bampton (7 ÍT. Y. State Rep., 327).</p>

<p>1. Criminal law—Indictment—Amendment of—When allowed—Sections 281, 293, Code Grim. Pro.</p> <p>In an indictment for larceny the name of the owner of the property is no-material attribute whatever of the crime charged to have been committed. It is not essential to the crime that the property should be owned by any particular corporation or person, and the principal object of inserting the name of the owner is to enable the prosecutor to prove the fact that the property was taken without the consent of such owner. Under sections. 281, 293. Code Criminal Procedure, it is proper to allow the prosecution on the trial of the defendant for larceny to amend the indictment by inserting the name of a different person from that stated in the indictment, from whom the property was feloniously stolen in order to make the .indictment conform to ilie proof. This is a variance the amendment of which cannot prejudice the defense on its merits.</p> <p>2. Same—Section 281, Code Grim. Pro.—Constitutionality of.</p> <p>Section 281, Code Criminal Procedure, allowing certain amendments, is. not an infraction of the provision of the constitution of this state. Following People v. Johnson, 4 N. Y. Grim. Rep., 590.</p>

<p>Jurisdiction of, supreme court at special term.</p> <p>The supreme court at special term has no jurisdiction to correct or otherwise interfere with the minutes of the circuit court.</p>

<p>Co-partnership—What makes party a partner as to third parties.</p> <p>The defendant had a special arrangement with the persons forming a certain firm. His name appeared on the sign and cards of the firm as a member thereof, and he signed letters, checks and receipts as a member of said firm indiscriminately, whether relating to business covered by said special arrangement or not, and he assumed all the duties and rights of a partner in said firm, etc. Held, that under these circumstances it was entirely immaterial as to third person^ dealing with the firm, what the particular arrangements in reference to the relation of the various partners to each other and to the business of the firm were, and although defendant’s interest may have been restricted as between himself and other members of the firm by the limitations of the articles of copartnership, he was still a partner of the firm, and consequently liable for its debts. Oliphant v. Mathews (16 Barb., 608) and National Bank of Chemung v. Ingraham, 58 id., 290, distinguished.</p>

<p>Landlord and tenant—Rent—Right to—Sub-tenant.</p> <p>Where a certain fund was derived from the occupancy of a part of the demised premises by an under-tenant, the landlord not being in possession either actually or constructively, and having no agency in the demise or the collection of the rent, the lease to a party who was subsequently</p> <p>. declared a lunatic remaining in undiminished force and effect: Held, that the lunatic was .vested with the title to this fund. See 9N. Y. S. R., 1.</p>

<p>Appeal from a judgment of the Columbia county court, entered upon a verdict in favor of the plaintiff. The action was brought in the justice’s court in which the plaintiff also had judgment, from which an appeal to the county court was taken.</p>

<p>Contract—Prospective profits—When not entitled to.</p> <p>The defendant employed the plaintiffs, who were architects to prepare- and complete for her preliminary sketches for a dwelling house, wuich they did and were allowed compensation for. Following the performance, and acceptance of this service there was a conversation in which defendant talked with plaintiffs about making plans and drawings with accurate and definite specifications which were to be considered before any final and binding agreement could be entered into between the parties, containing the necessary details for an absolute, definite and specific agreement, for the employment of plaintiffs, to superintend the building, could be made. Before any thing was done on said plans defendant discharged the plaintiffs. Held, that the plaintiffs were not entitled to prospective damages- or estimated profits. That the proof showed that the subject was yet inchoate- and nothing was yet absolutely certain in detail. Learned, J. dissenting.</p>

<p>1. Trespass — When a sale under a chattel mortgage mat be.</p> <p>A chattel mortgage upon three cows was given by this plaintiff to secure the payment of certain moneys to the defendant. Held, That if the mortgage were satisfied by the sale of any less than the whole number, a sale beyond the number sufficient to satisfy the mortgage would be a trespass.</p> <p>2. Same—What must be established to show the commission of a</p> <p>TRESPASS.</p> <p>The mortgage secured beside the payment of the principal and interest all the expenses and charges of the sale. Held, That in order to hold the defendant liable for a trespass, in making a sale of the property, the plaintiff being in default for non-payment of the sum thus secured, it must be shown that the sale was greater than was necessary to realize a sum sufficient to cover all expenses.</p>

The complaint alleged the issuing by the defendant of a policy of fire insurance for $1,000 to Bobert T. Mattison, upon Ms stock of ready-made clothing, etc., in Ms store in Granville, R Y.; the subsequent destruction of the insured property by fire, of the value of $7,521; the service of due proofs of loss upon the defendant; the failure of the defendant to pay, and the assignment of the claim to plaintiff by a general assignment for the benefit of creditors.

<p>1. Conversion—Proof of possession, with knowledge.</p> <p>The plaintiff, by Ms agent, had negotiated with defendant for the purchase of 175 bags of flour. The plaintiff caused the bags to be delivered at defendant’s mill to be filled with flour. The defendant was not present when the bags were delivered, but a few days later at the mill he pointed out the bags to plaintiff’s agent and told him he had received them. For some reason the sale of the flour was not consummated. Held, The evidence was ample to show that the defendant received the bags knowing that the plaintiffs expected him to fill them with flour.</p> <p>3. Same—Demand—When well made.</p> <p>The plaintiff’s agent presented a written order of plaintiff to the defendant, who read it and then refused to deliver the bags unless he was paid §5 for storage, and returned the order to the agent. The agent four weeks later again presented the written order and made an oral demand for the bags Held, The demand was well made and well understood.</p> <p>-3. Same—Refusal to deliver—What amounts to.</p> <p>When the agent presented the order the second time, the defendant said he should not deliver the bags to him; that he would like to have the plaintiff come there and he would know whom to pitch upon- that he did did not keep his mill locked to hinder any one from getting them; they had stood there in his way for two years; he wanted $5 for storage; that, he had not any thing to do with the bags, and was not going to put himself to any trouble. The defendant did not tell the agent where the bags were when the latter said he did not know where they were. On the trial there was no claim of any lien on the bags for storage. Held, That the language and conduct of the defendant were intended and did amouni to a refusal to deliver the bags.</p>

<p>Executors and administrators — Reference of claims under the statute—Statute of limitations.</p> <p>The claim as presented to defendant was on a note made by deceased, Hiram A. Ferguson, dated May 10, 1873, payable in one year, with interest, to Evaline A. Ferguson, or bearer; and also on §250, received by said Ferguson in his lifetime, for said Evaline, of whom plaintiff is administrator, with will annexed. Evaline died June 8, 1878. Hiram died August 10,1883. The note was outlawed May 13, 1880, unless it was kept alive by the transaction of June, 1878. The money (§200) was delivered to him June 8, 1878, after the death of Evaline. Held, that there was nothing in the transaction of June, 1878, which prevented the statute of limitations from running as to the note; but as to the §200, the right to recover that from Hiram A. arose at once upon its receipt, as he had no authority for taking it and was not barred by the statute of limitations.</p>

<p>Application op payments—Ratification.</p> <p>This defendant was at the same time indebted to this plaintiff for goods sold and delivered, and to a firm occupying the same store with the plaintiff, the members of which were interested in and managers of the plaintiff’s business He made payments to the parties so managing the plaintiff’s business, which were by them applied to the indebtedness to their firm, and in the application of these payments he acquiesced. Held, that the payments were properly refused as credit on the plaintiff’s account.</p>

<p>1. Findings of fact—Of referee—When upheld.</p> <p>Upon an appeal from a judgment entered upon the report of a referee, held, that the findings of fact made by the referee must be upheld if it did not appear either that they were unsupported by evidence or that the weight of evidence was clearly with the party against whom the referee found.</p> <p>2. Gift—Question of motive—Ascertainment of motive lends probability to the fact.</p> <p>Held, that upon an inquiry as to whether a gift was made by a party the question as to the motive of the party in making such a gift was only important as lending probability to the theory that it was in fact made.</p>

<p>Promissory note—Liability of joint maker when in fact a surety.</p> <p>Where a party signs a note as one of the makers, although he is in fact a surety, he is liable only for the indebtedness of his principal, and if the principal does not owe the note or owes only part of it, cannot be held liable for a greater proportion.</p>

<p>Appeal from an order confirming an assessment.</p>

<p>1. Negligence&emdash;Railroad&emdash;Fire&emdash;Duty in constructing engine.</p> <p>It is the duty of a railroad company to use such appliances as are in ordinary known use to prevent the escape of sparks.</p> <p>2. Same&emdash;Duty of railroad to keep side of track clear from com-</p> <p>bustible material.</p> <p>It is negligent for a railroad company to place combustible material, unnecessarily, along their track so that the sparks, which (as in this case) will fall thereon and tend to produce a fire that may injure the adjoining neighbor. To pile up old ties and dry brush, on their land, where sparks will probably fall, may be considered by a jury to be an act of negligence.</p>

<p>Appeal from a judgment entered upon the report of a referee in favor of defendant</p>

<p>Pleading—Complaint in justice’s court.</p> <p>The plaintiff, the defendant and one Wallace R. met Wallace R. owed plaintiff sixteen dollars. Defendant owed Wallace R. sixteen _ dollars. The three persons mutually agreed that defendant should pay plaintiff the-sixteen dollars, and plaintiff should (as he at once did) release Wallace R. from the sixteen dollars. Reid, sufficient to sustain a complaint in a justice’s court alleging that defendant was indebted to plaintiff for sixteen dollars paid to Wallace R. at defendant’s request</p>

<p>1. Judgment—Evidence to explain—When admissible.</p> <p>A judgment is conclusive as to the matters put in issue and decided. Where the matters decided cannot be obtained from the judgment itself, it does not prevent the parties from showing by extraneous proof, what was decided.</p> <p>3 Trial practice—Leave to re-open case discretionary.</p> <p>After the defendant has rested his case and while the plaintiff is proving facts in rebuttal, it is discretionary with the judge whether he shall uermit the defendant to call a witness to prove a new fact.</p>

The referee herein having made application to have his-fees adjusted before the filing of his report, and that such adjustment be at a greater rate than that fixed by law (under a stipulation made when he entered upon his duties as such referee), the surrogate filed the following opinion: Henry E. Knox, for George F. Gilman; Latham G. Reed,, for Anna IL Gilman; William D. TJdell, for Caroline Scam-man; Raphael J. Moses, Jr., for Caroline R. Garczynski; James A. Hudson, for…

<p>■ 1. Testamentary capacity—Lack oe, not proven.</p> <p>Held, as to certain circumstances; that they were insufficient to establish a lack of testamentary capacity on the part of the testator.</p> <p>3. Perpetuities—What is not violation oe statute against.</p> <p>By his will a testator gave to his wife the use of all his property during-his life, and thereafter an equal share of the income thereof to each of his-children, and directed an equal division among his grandchildren of the share of each of his own children as they should successively die. Held, that there was no unlawful suspension of the power of alienation, or of the absolute ownership of the personal property; that at no time did more than two lives intervene between the testator’s death and the division of the respective shares of his children in his estate.</p>

<p>1. Probate of will—Pboof of kinship—What evidence insufficient.</p> <p>On the presentation of the testator’s will for probate a certain person claiming to be the daughter of the decedent appeared as contestant. She showed, among other things, that her father and decedent had an identity of name, that they were reticent concerning family history, general similarity of stature, early association with certain cities, etc. The proponent proved that the decedent was a man of very large education and culture, occupying positions of trust; while the contestant’s father was shown to be illiterate and a laboring man, and had served a sentence for incest. Held, that the contestant was not a daughter of decedent, and was not entitled to appear.</p> <p>3. Will—Undue influence—When not proven. •</p> <p>The decedent made his will over three years before his death, just prior to going to 1:11 his duties as professor in a college. The decedent entertained for the proponent, his sole legatee, sentiments of the highest affection and regard. The preparation and execution of the will were not brought about by her immediate interference. A month after the will was made decedent wrote to proponent telling her he had made his will, and that all of his property was given to her, and then proceeded to state in detail the nature of his property of which the will made no specific mention. Held, that there was no proof of any undue influence.</p>

<p>1. Attorney and client—Attorney’s lien- Seo. 66, Code Civil Pro.— Necessity of notice of lien.</p> <p>Previous to the amendment of § 66, Code Civil Procedure, an attorney’s lien only attached to the judgment obtained in the action, but it was broad enough to cover not only taxable costs, but any agreed compensation between the attorney and client. In the absence of notice of the attorney’s lien, the defendant acting in good faith, had the right to p;¡y the judgment to the plaintiff and was protected in so doing. Section 66, Code of Civil Procedure, does not in terms declare that such lien shall exist, even though a bona fide settlement be made without notice, it simply says it shall exist as to the cause of action. Enlarging the subject to which it shall apply, does not change any of the steps which were before necessary to make the lien effectual. The construction to be given the amendment to § 66. is not to change the rule which requires notice to be given of the attorney’s lien, at least so far as it extends beyond the taxable costs.</p> <p>2. Same—Settlement by client—Attorney’s remedy.</p> <p>The practice is settled that the client is concluded by his release, and if the attorney desire to proceed, he should move to vacate the settlement, obtain leave to prosecute the action to enforce the lien, or prosecute a direct proceeding in his name for that purpose.</p>

<p>1. Justices of the peace—Municipal court of Buffalo—Contract fob SALE OF LAND—JURISDICTION OF CLAIM FOR DAMAGES ON FAILURE TO PERFORM.</p> <p>Where the action is brought on the contract of sale of land, for damages on failure to perform, the title to real property is not involved the court has jurisdiction cf the matter.</p> <p>3. Sales—Contract of sale—Presumption as to time of payment when OMITTED IN THE TERMS OF SALE.</p> <p>Where no time of payment is mentioned the law will presume that the consideration was to be paid on delivery of the deed.</p> <p>3. Evidence—Contract for sale of land—Admissibility of extrinsic EVIDENCE TO LOCATE LAND.</p> <p>It is always competent by extrinsic evidence to locate the land to be sold by the contract, should there be such uncertainty in the description as to require it.</p>

<p>1. Evidence—Testimony as to reputation and skill—Admissibility TO PROVE VALUE OF SERVICES RENDERED—HYPOTHETICAL QUESTIONS.</p> <p>Evidence of the character and skill of the person performing services is always received for the purpose of proving the value of labor and services of non-professional, as well as of the services of professional men. It is not necessary that such witnesses should have personal knowledge of the labor and services performed, but they may testify after hearing the quality of the services, etc. The usual way is to ask a hypothetical questions assuming the facts proved.</p> <p>3. Same—Rule as to judicial notice—Does not apply to matter OF PRIVATE CONCERN</p> <p>The court will take judicial notice of the customs and business methods of banking, railroad and other public corporations, for the public at large are constantly dealing with them, and are presumed to know; but in actions for labor and services no such rule obtains as to private parties.</p>

<p>Landlord and tenant—Void lease—Liability of Tenant durino use AND OCCUPATION</p> <p>‘Though the lease may be void by reason of not complying with the requirements of the statute of frauds, yet the tenant will be held liable during the period of occupancy,</p>

<p>Justices oe the peace—Tbial by jury—Right to charge—No power to direct a verdict—Municipal court oe Bueealo—Code Civil Pro., §§ 3,989-3,008.</p> <p>The practice in' this state has been uniform, that a party may either submit his case to the justice, or call for a jury, and when he once exercises this right to a jury trial, a justice of the peace cannot take it away nor interfere with the jury. Their verdict, however erroneous or irregular it may be, is the verdict of the jury on which the justice must' enter judgment, and the only remedy the aggrieved party has, is by appeal at the close of the case The justice may non-suit the plaintiff, and may charge a jury upon the law, subject to the same strict rule applicable to courts of record; but if he omits to charge the jury, as he may do, the= jury become the judges of the law, as well as of the facts. However, the court does not possess any power to direct a verdict when’a jury has once been empanneled to try "the cause, and there is no authority under the statute which warrants such procedure. The statute somewhat enlarges the powers of the municipal court of Buffalo, but not so as to be material in discussing this point.</p>

<p>Cbiminal tbial-t-Tbespass—§ 462, Penal Code—Advice op counsel admissible TO SHOW INTENT.</p> <p>The advice of counsel is not an excuse for, ora defense to a crime which is shown to have been committed; but it is competent evidence for the purpose of determining whether a crime has actually been committed. When the intent constitutes the essence of the charge, the intent with which the act is done is the subject of the inquiry, and nothing more clearly shows the intent of the defendant than evidence of the advice of counsel honestly given.</p>

<p>1. Divorce—Action por—Code op Civil Pro., § 1767—What need not APPEAR UPON THE RECORD.</p> <p>There is no command in the statute that the facts by it required to be proven shall constitute a part of the record or appear therein. If the court is satisfied by proof, no matter whether made before the referee or court, the requirements of the statute are complied with and this is so, even though no record of such fact be made.</p> <p>2. Evidence—Presumptions—As to regularity op judgments op court of general jurisdiction.</p> <p>It is the settled rule that judgments of superior courts of general jurisdiction are presumed to have been regularly and legally rendered and when the record does not disclose that the court acquired jurisdiction it will be presume! until the contrary clearly appears.</p> <p>3. Practice—Motion to set aside judgments—When not to be attacked collaterally</p> <p>The court, having jurisdiction of the subject-matter and of the person of the party against whom the judgment was rendered, consequently had jurisdiction to render judgment, and even though the judgment so readered would be reversed upon appeal, yet it cannot be attacked in a collateral proceeding.</p> <p>4. Alimony — Mature of the powers of the court—Final decree AWARDING ALIMONY TO WIFE—EFFECT OF—CODE ClVIL PRO., § 1759— Power to modify decree as to child—Section 1771, Code Civil Procedure.</p> <p>The power of the courts to entertain action for and grant decree of divorce is a statutory power and found no place in the common law. The only authority for making final provision for the support of the wife is found in section 1759, Code Civil Procedure. This provision is to be entered in the final judgment. Such judgment concludes the parties, dissolves the contract of marriage and thenceforth the parties are no longer husband and wife. It is a finality and unless reversed by a court of competent authority, stands forever. The power to modify the decree as to the wife ceases with the entry of final judgment awarding alimony. As to the sum awarded for the support and maintenance of the child, a different rule prevails. Section 1771, Code Civil Procedure, provides that such order may be changed or modified at any time before or after final judgment.</p> <p>6. Same—Amount of—How determined.</p> <p>In determining the amount of alimony, the court takes into consideration the nature of the husband’s means, the situation of the parties in society, the amount of the husband’s income, whether arising from property which he possesses or is produced by his daily exertions.</p>

<p>Bill of particulars—Practice on refusal to furnish same in order TO EXCLUDE THE EVIDENCE—CODE ClVIL PRO., § 531.</p> <p>Under the old Code the proper practice in case a party neglected to furnish a bill of particulars on demand, was to make application to the court by motion, to preclude such party from giving evidence, on the trial, of his demand. If a party desires to prevent the giving of such proof he should have this question settled before trial. This is the better practice as all parties will then know just what facts the evidence will be directed to prove.</p>

The plaintiffs,, real estate brokers, were employed by the -defendant’s testatrix, through her agent, Oliver H. Holt, to sell a parcel of land situate in the city of Buffalo, at the price of $14,000, for a commission of two and one-half per cent. The plaintiffs undertook the employment, and did what agents usually do, put their board on the property, placed the parcel bn their circulars, and advertised it.

On the 30th day of June, 1886, the plaintiff, a resident of Buffalo, started, to use his own phraseology, to go to Clarence, a village about eighteen miles distant, to make a visit. He went to the depot in Buffalo of the New York, West Shore and Buffalo Railway, and paid for and got a ticket to Clarence, and then went out into the yard and found a train standing there ready to go out on the West Shore road.

<p>Summary proceedings to dispossess—Sufficiency of affidavit of SERVICE, OTHER THAN PERSONAL—SECTIONS 2241, 2248, OODE CIVIL PRO.</p> <p>The copy precept to be effectual when served otherwise than personally must have a copy of section 2241 of Civil Procedure endorsed upon it and due service requires not only that the copy be served but that when it was served that the notice was endorsed upon it as the law requires, else it fails. The affidavit is defective in not stating that not only was the copy precept served but that the -notice required to be endorsed thereon was there when serve'd.</p>

<p>1. Buffalo (City of) streets—Laying out of new streets—Grounds FOR VACATING PROCEEDINGS—NATURE OF THE REPORT OF THE COMMISSIONERS.</p> <p>Where there has heen no misconduct on the part of the commissioners, their report when confirmed is entitled to like consideration as the decision of a court, or the report of a referee, and the proof required to set it aside should he such as would justify a court in setting aside a decision or report. . An improper apportionment of the award constitutes no valid ground for setting aside the proceeding.</p> <p>'2. Same.</p> <p>Under the charter of the city of Buffalo, proceedings were taken to extend Elmwood avenue. There was no question as to their regularity down to the making of the award. Certain taxes had heen levied upon one of the piece? of land condemned, and in apportioning the sum awarded, these taxes were deducted from the damages. Held, That the fact of the payment of taxes hy the petitioner, subsequently assessed upon the land condemned, does not furnish ground upon which to vacate the proceedings.</p>

<p>1. Warranty—Sale of seeds—-What necessary to charge vendor with BREACH.</p> <p>To charge a vendor with breach of warranty in the sale of an article, the warranty resting in parol alone, it must clearly appear that the vendor, by positive representation, declared the article sold to be of a certain quality or character as a matter of fact, and not as an expression of his opinion or judgment, and the vendee must so understand it, rely upon it, and be induced thereby to purchase.</p> <p>2. Same—Whether there was a warranty or expression of opinion is for the jury.</p> <p>The defendants sold to plaintiffs certain seeds which purported to be and were marked “Yellow Dan ver Onion." On the package was printed “it is hereby mutually agreed between ourselves and the purchasers of this package that we do not warrant the same, and are not in any respect liable or responsible for seed sold by us, or for any loss or damages arising from any failure thereof in any respect.” On the bill there was a printed notice that defendant did not warrant the seeds sold as true to name. The seed was planted and produced a red onion of inferior quality and market value. The plaintiffs were familiar with these notices from previous dealings with defendants. In a suit for damages, the trial court held defendants liable, leaving to the jury to assess the damages only. Held, error, that the notice given and the circumstances connected with the dealings between the plaintiffs and defendants entitled the defendants to have the question submitted to the jury as to whether there was an express warranty that the seed sold was of the kind and quality stated or whether it was simply the expression of defendants' opinion and judgment, and in the latter case was so understood by the plaintiffs. Following Hawkins v. Pemberton, 51 N. Y., 198.</p>

<p>Statute op frauds—Agreement to answer por the debt op another—Requisites op,</p> <p>A simple verbal promise to answer for the debt of another does not comply with the requirements of the statute of frauds, and upon such an agreement the promisee cannot be held liable.</p>

<p>Motion for a peremptory mandamus commanding the assessment levy and collection upon the fire district of the unincorporated village of Far Rockaway in the town of Hempstead, Queen’s county, of the sum of $2,000 due the relator for fire service rendered therein during the year 1880-7.</p> <p>On July 28th, 1886, the following resolution with its preamble was duly adopted by the board of supervisors at a regular meeting.</p> <p>“Whereas, a majority of all the tax-payers and who represent-more than one-half of the assessed value of the taxable property of and in the unincorporated village of Far Ro.ckaway, in the town of Hempstead, in the county of Queens, and state of Hew York, as shown by the assessment roll of the said town of Hempstead, for the year 1885 and the same having been certified to by the board of assessors of said town, have petitioned this board as follows, viz:</p> <p>“ To the Honorable the Board of Supervisors of the county of Queens:</p> <p>Whereas, The unincorporated village of Far Rockaway, in the town of Hempstead, Queens county, Hew York, is at present entirely unprotected against the danger of fire; and</p> <p>“ Whereas, The Queens'County Water Company, a corporation duly organized and existing under the Laws of the State of Hew York, has recently constructed water works in said village, with a complete system of fire hydrants, and are now prepared and willing to furnish an ample supply of water for the extinguishment of fires therein.</p> <p>“How, therefore, etc., The subscribers, severally being taxable inhabitants of the proposed fire district in the unincorporated village of Far Rockaway, aforesaid, as hereinafter designated, whose names appear on the last preceding assessment-roll of the town of "Hempstead, aforesaid, as owning or representing taxable property of the proposed district, do respectfully petition your honorable body, and pray that you will exercise the power and authority conferred upon you by sub-division 34 of section 1 of chapter 482 of the Laws of 1875, added thereto by section 1 of chapter 512 of the Laws of 1880, as amended by section 1 of chapter 439 of the Laws of 1885, and establish a fire district in the village of Far Rockaway aforesaid, to include all taxable property along and being within five hundred feet of any part of the pipe lines of the Queens County Water Company, as shown in red lines upon the map hereto attached and made a part of this petition; that you will make, authorize or cause to be made a five year contract, on behalf of such fire district, with the said Queens County Water Company for a supply of water through their fire hydrants for the extinguishment of fires within the district aforesaid, at the annual rental or sum for the use of such hydrants for fire purposes of two thousand dollars, to be paid to said company at such time or times as may be agreed upon; and that you will provide for the annual assessment, levy and collection thereof upon such district in the manner prescribed by the statute hereinbefore referred to.</p> <p>“And thus ever will your petitioner pray, etc.</p> <p>“ [Subscribed and verified as required by statute.]</p> <p>“ The board of supervisors of Queens county do hereby, pursuant to chapter 483 of the Laws of 1875, added thereto by section 1 of chapter 513 of the Laws of 1880, as amended by section 1 of chapter 439 of the Laws of 1885, by the vote of a majority of all the supervisors elected to said board, ascertained by taking the ayes and nays, resolve as follows:</p> <p>“Resolution No. 6.</p> <p>“Section 1. That a fire district be and the same is hereby created and established in the unincorporated village of Far Eockaway, in the town of Hempstead, Queens county, said fire district to include all the territory and taxable property, etc., etc. [Here follows the description of the district.]</p> <p>“ § 3. That said fire district is hereby authorized to procure a supply of water for the extinguishment of fires therein in the manner prayed for in said petition, through the fire hydrants of the Queens County Water Company, and that this board authorize the supervisor of the town of Hemp-stead, acting for and on behalf of the said fire district to make and execute a contract for the term of five years on behalf of such fire district, with the said Queens County Water Company for a supply of water through their fire hydrants for the extinguishment of fires within the district aforesaid, at the annual rental or sum for the use of such hydrants for fire purposes, .of two thousand dollars, to be paid to said company, and that the supervisor of the town of Hempstead is hereby authorized and directed to prepare and execute for and in behalf of the fire district aforesaid, a contract as aforesaid, with the Queens County Water Co.</p> <p>“ § 3. That the annual sum of two thousand dollars for the term of five years be assessed, levied and collected upon the fire district aforesaid, in the same manner, at the same time and by the same officers as the taxes of the town in which such unincorporated village is located are assessed, levied and collected, and the same or so much thereof as shall have been collected be paid to the said company or assigns, on or before the fifteenth day of February in each year (the first payment to be made February 15, 1887), by the supervisor of the town of Hempstead then in office, and all money so assessed, levied and collected for the said purpose shall be paid to the supervisor of said town by the receiver of taxes therein.</p> <p>“§ 4. That if any amount of said tax shall remain unpaid in any one year the same shall - be assessed, levied and collected upon the property delinquent in such district the next fiscal year, and which said amount or sum when collected shall be paid over to the said company or its assigns in the manner hereinbefore provided.</p> <p>“ § 5. This act shall take effect immediately, and the clerk of this board is hereby required to file and publish this resolution as required by law, and the Queens County Water Company shall file in the office of the treasurer of Queens county and in the office of the town clerk of the town of Hempstead, a duplicate of the map referred to and accompanying and forming a part of the said petition.”</p> <p>Immediately upon the passage of the foregoing resolution the relator accepted of its terms and conditions and for the compensation provided, forthwith began the performance of its service as required thereby.</p> <p>On July 31, 1880, a contract was entered into in duplicate between Martin V. Wood, supervisor of the town of Hemp-stead, authorized by said resolution to act for and on behalf of the fire district duly established in the unincorporated village of Far Rockaway of the first part, and the relator of the second part, which was merely a reiteration of the terms and conditions of the foregoing resolution and in itself provided only for the minute details of the service.</p> <p>The relator fully performed its service as contracted for, and in every respect lived up to and is now continuing to live up to every requirement on its part both of the resolution and the agreement.</p> <p>On November 18, 1886, the board of supervisors by resolution reconsidered their resolution of July 28, 1886, and on the opinion of counsel stating that chap. 439 of the laws of 1885, did not authorize the board, to make or authorize to be made a contract with the water company, and that their powers were exhausted when the fire district was created, and said district authorized to procure a supply of water for fire purposes, declared, that part of the resolution of July 28, 1886, relating to the said contract to be null and void, and to have been made without proper legal jurisdiction on the part of the board, and the petition for the establishment of the fire district with the resolution as reconsidered was laid upon the table to await the further action of the inhabitants of the unincorporated village of Far Rockaway.</p> <p>In due season thereafter the relator demanded that the board of supervisors should perform their duty under their resolution of July 28, 1886, in respect to the annual assessment levy and collection of the sum of $2,000 provided for the compensation of the relator. This was not done, and after fully performing its service for a year the relator instituted these proceedings in mandamus to compel the insertion in the next annual tax levy of the sum earned by it.</p>

<p>1. Assignee—Funds in the hands of—Title to.</p> <p>Between the plaintiff, a banking corporation, and the defendants, who-were private bankers, there was an arrangement undei which the plaintiff was accustomed to send to the defendants daily for collection such drafts, checks and notes as it held payable in the defendants’ vicinity. Such paper was always indorsed payable to the defendants’ order for collection on the plaintiff’s account. A letter accompanied stating that the bills stated were sent for collection and credit. and setting forth the paper, amount and place of payment. The defendants were accustomed on receipt of such letter and paper for collection to credit the plaintiff with the total amount of their cash collections, and to credit the time collections to the plaintiff when in fact paid. When any of the cash collections were not upon presentment paid, then they were charged hack to the plaintiff with fees of protest, if any Once in each week the defendant’s remitted to the plaintiff the balance due it as appearing on their hooks, charging a rate for services. This course of business was mutually understood so as to amount to an arrangement. While engaged in transacting such business, the defendants failed and made a general assignment for the benefit of creditors, having at that time certain paper be.onging to the plaintiff not returned or paid for. None of this balance has been paid to the plaintiff. Before the assignment a large proportion of it came to the hands of the defendants, and was by them paid out, some of it being received by the assignee; and after the assignment certain moneys, forming part of the items due the plaintiff were sent by the defendants’ correspondents to the assignee, but no time items came to his hands. The plaintiff gave notice to the defendants of this claim, but at that time the great part of the money which had been received by the assignee had been paid out, the main item being a dividend to preferred creditors, payment of which was made pursuant to an ex parte order of the county judge. After the commencement of this action and pending its trial, the assignment was set aside as fraudulent and void as to creditors, and in that action receivers were appointed of the property of the assignors. None of the proceeds of the plaintiff’s paper appeared to have come into the hands of the receiver. Held, that the indorsement on the paper was such that the title to it did not vest in the defendants, but that the remittances to the plaintiff being made only once a week, the defendants had, to a certain extent, the right to use the proceeds when collected, and that the relation of debtor and creditor so far existed.</p> <p>2. Same—Funds—When equitable lien dobs not exist against.</p> <p>Held, that the plaintiff had no equitable lien on the estate in the hands of the assignee for the amount received by the defendants before assignment.</p> <p>8. Same—Title to bunds.</p> <p>Held, that the moneys received by the assignee from plaintiff’s paper after the assignment belonged in fact to the plaintiff.</p> <p>4. Same—Liability of assignee—How restricted.</p> <p>Held, that the assignee was not liable for such moneys where they had been paid out in good faith before notice.</p> <p>5. Same—Not chargeable with constructive notice.</p> <p>The books of the assignors were kept in such a manner that investigation would show the state of the account existing between them and the plaintiff. Held, that the assignee was not chargeable with constructive notice of the state of account.</p> <p>6. Same—Clam of creditor—To what confined.</p> <p>Held, that the claim of the plaintiff must he confined to the balance in the hands of the assignee on the service of the notice of its claim.</p>

<p>1. Eratjd&emdash;Evidence amounting to proof of.</p> <p>Evidence showing the execution of a deed, mortgage bond and assignment with intent to defraud creditors.</p> <p>2. Evidence&emdash;Declarations of conspirators.</p> <p>The declarations of conspirators in furtherance of their common purpose are admissible against all, the fact of the existence of the conspiracy having previously been established.</p> <p>3. Same&emdash;What will not render it incompetent.</p> <p>In an action to set aside an assignment as fraudulent. Feld. That evidence which was competent, as against the parties conspiring to defraud creditors, did not become incompetent as against the assignee, because it might be instrumental in establishing a fraudulent purpose on the part of the assignors in making their assignment. The rule excluding the declaration of a former owner against a purchaser for value had no application to the case.</p> <p>4. Same&emdash;Assignment for benefit of creditors&emdash;Evidence of fraud.</p> <p>Feld, That for the purpose of showing the fraudulent intent of the assignors, it was competent to prove that they omitted property from their schedules, and for the same purpose to show that within a short time after the assignment, one of the assignors had money in his possession.</p> <p>5. Same&emdash;Declaration of assignors.</p> <p>The written declarations of a firm composed of the assignors entered in their hooks in due course of business, prior to the assignment, are admissible to show whether there existed any indebtedness of any kind to certain parties and the extent of it.</p>

<p>Trial practice—Evidence—When improperly stricken out—Foreclosure OF MORTGAGE.</p> <p>In an action to foreclose a mortgage, it became important to know the consideration of a certain prior mortgage. The plaintiff contended it was a collateral security for certain notes. The defendant contended that said prior mortgage was given for the purchase money of the property mortgaged and was not collateral security. On this issue the plaintiff was called and asked for what purpose was the Whittemore mortgage (the prior mortgage) “ held by the bank.” The answer was that it was held “as collateral security for indebtedness of W. A. Holby.” This answer was stricken out on defendant’s objection. Held, error.</p>

<p>Appeal from circuit court of Oswego county.</p>

<p>1 Master and servant—Obligation on the part of the master to furnish proper tools.</p> <p>This action was brought by a servant to recover from his employer damages for injuries occasioned by a piece of steel flying from a chisel under the blow of a hammer and destioying one of his eyes. Held, that the defendant was bound to furnish suitable implements and tools for the use of its servants.</p> <p>S. Same—Circumstances amounting to neglect on part of co-servant. The plaintiff complained on several occasions that the chisels needed repairing, and was told to send them to the shop to be put in order. He did so, and they were returned without the fault of which the plaintiff had complained having been remedied, and while using one of the tools he received the injuries, to recover damages for which this action was brought. Held, that assuming that notice of the improper condition of the tools had been given to the defendant, the negligence in not remedying this defective condition was that of a co-servant,</p> <p>3. Same—Liability of master for damages arising through improper</p> <p>CONDITION OF TOOLS.</p> <p>Held, that the notice so given was not to the defendant, and that until there had been notice of the defective condition and neglect to repair, the defendant could not be held liable.</p> <p>4. Same—Servant’s knowledge of the defect relieves the.master</p> <p>FROM ALL LIABILITY."</p> <p>Held, that the defendant could not be held liable, the plaintiff having perfect knowledge of the defect by reason of which the injury was occasioned.</p>

About September 26, 1872, respondent intermarried with the appellant, Charles E. Bedell.

Appeal by the parents of an infant, from an order of the surrogate of Dutchess county appointing a guardian. O. D, M. Baker, for app’ltj B. Baker, for resp’t.

<p>IStgligence—Railroad—Question of fact.</p> <p>A locomotive of defendant company, while hauling a train, kept on the main track, at a certain station, but the train itself went off on a switch and pulled the locomotive so that it was overthrown; the deceased, who was the engineer, was killed. Held, that the happening of the accident, being one which does not occur in the ordinary course of things, cast upon the defendant the burden of explaining the accident, and that the case should have gone to the jury. Following Durkin v. Sharp, 88 If. Y., 325. Dvkman, J., dissenting.</p>

<p>Appeal from an order refusing to give leave to defendants to withdraw a notice of appearance except on conditions.</p> <p>The decision of Cullen, J., who tried the motion at the special term was as follows: Even the unauthorized appearance of an attorney gives validity to the proceeding against the client, and the remedy is either against the attorney or by motion in the action. Brown v. Nichols, 42 R. Y., 26; Denton v. Noyes, 6 J. R,, 296,</p> <p>Assuming which, 1 doubt that tho appearance of the attorney was unauthorized. What relief should be afforded to the defendants depends on the circumstances of the particular case. This action relates to real property within the state. The defendants, therefore, can be brought into court, though no^-residents. They have, therefore, lost no rights by the mere appearance of the attorney. But they are in default, having failed to answer. From this they may be relieved. If they desire another attorney, he may be substituted for the one that has appeared. This will amply protect the defendants from the consequence of the alleged unauthorized appearance.</p> <p>Further than that, I think the court ought not to go.</p> <p>Defendants will be given leave to withdraw appearance already served, on condition that they appear and answer in the action within five days, and stipulate that the cause may proceed to trial as of the date of the issue hitherto joined. In default of such stipulation, motion denied.</p>

<p>Appeal from an order made at the Kings county special term, setting aside a verdict and granting a new trial.</p>

<p>This is an appeal from an order made at special term, granting leave to issue execution on the judgment herein. The judgment was recovered on the 13th day of April, 1866. Bilazon Tompkins, the judgment creditor, died on the 18th day of February, 1867, leaving a last will and testament, wherein Jane Tompkins, his widow, was appointed executrix; the will was duly probated and letters testamentary therein were duly issued to the said Jane Tompkins, executrix, as aforesaid, who made application for leave to issue execution on said judgment, and the order granting such leave was made on the 39th day of January, 1887.</p>

<p>1. Recorder of Port Jervis is justice of the peace of Benpark.</p> <p>The recorder of the village of Port Jervis is, for the purposes of civil trials within the village, a justice of the peace of he town of Benpark.</p> <p>2. Streets and highways—Dedication and acceptance.</p> <p>Certain lands were sold bounded by a street as laid out by the owner of the property, of which it formed a part. Said street was used as a public highway. The village engineer employed to make a map of the village put this street upon it. The street commissioners had for many years had charge of it and removed obstructions thereupon. There were residences on both sides of it and the city surveyor put up a monument upon it and part of it had been worked. Held, that there was a dedication of the street by the owner and proof enough to uphold a decision that there was an acceptance of it by the' village.</p>

<p>Appeal from a judgment in favor of plaintiff, entered upon the verdict of a jury at the Kings county circuit, and from an order denying a motion for a new trial on the-judge’s minutes.</p>

<p>Appeal from a judgment in favor of plaintiff entered on a verdict of a jury directed by the court at the Kings-county circuit.</p>

<p>1. Practice—Judgment—Reversal op.</p> <p>A judgment will not be reversed in order to allow a plaintiff by amending his complaint, to recover for a cause of action not pleaded.</p> <p>3. Evidence—Varying a written contract.</p> <p>Antecedent conversations are merged in the written contract, and therefore all discussions preliminary to the written contract, are inadmissible as evidence in an action to recover on the contract.</p>

<p>1 Landlord and tenant—Abandonment op premises by tenant.</p> <p>Where there is no agreement in a lease to repair, no obligation rests upon the landlord to do so, and under such circumstances the necessity for repairs will not justify the tenant in abandoning the leased premises.</p> <p>2 Same—Landlord may lease abandoned premises.</p> <p>The fact that the landlord rented said premises, and realized some rent therefor after they were abandoned by the tenant and reduced his liability, was no ground of defense.</p>

<p>Appeal from a judgment in favor of plaintiff entered upon the verdict of a jury at a term of the county court of Richmond county and from an order denying a motion for a new trial on the judge’s minutes.</p>

<p>Merger—When a mortgage does not merge,</p> <p>One Bunting was the individual owner of the fee of the property covered by a certain mortgage, which mortgage was assigned to her as executrix. On the same day she assigned the said mortgage to a certain company, but the assignment stated expressly that nothing contained therein should effect a merger of the mortgage in the fee The fee was conveyed by Mrs. Bunting individually at the same time to the same company. Said company held the title for eleven years, and then conveyed it to a certain, other company, subject to certain mortgages given to another person and to all other incumbrances. The facts did not show payment of the mortgage in question. In an action to compel a person to specifically perform a contract to purchase said land. Held, that the mortgage in question was not merged. That the title was not a merchantable one.</p>

<p>•Gratuitous bailee—When liable.</p> <p>Certain personal property was voluntarily left by the plaintiff in the office of defendant, in a place of safety, subject to his own control, and could have been removed at any time. It was not in the personal possession of defendant. Held that nothing but proof of gross carelessness and negligence would render defendant liable for its loss</p>

<p>Appeal from a judgment in an action of ejectment in favor of the plaintiff entered in Westchester county on the findings and decision of the judge who tried it at the circuit of said county without a jury.</p>

<p>Writ of certiorari to review proceedings of commissioners of police for Bichmond county, resulting in the reduction of relator from the rank of captain.</p>

<p>Specific performance of contract to sell land—Mortgage—Insurance clause.</p> <p>The plaintiff bought two vacant lots of land, and was to give a mortgage back for part of the purchase price. The mortgage prepared by de fendant contained a clause that the buildings on the property should be insured and kept insured. This clause was objected to because the lots were vacant. Held, the mortgage was correctly drawn, and plaintiff had no legal excuse for not executing it.'</p>

<p>1. Evidence—Admission—Personal transactions with deceased—Code Civil Pro., § 829.</p> <p>The plaintifE brought an action on a note against the executor of the maker. He was asked upon the trial whether- he had ever seen the note in suit. Held, that the question was admissible. That it did not call for a personal transaction or communication with the deceased.</p> <p>2. Same—Declaration not evidence in favor of party making.</p> <p>The general rule is that a party cannot make evidence in his own favor either by his declaration or by his written entry in his book.</p> <p>3. Same—Exception—Res gestae.</p> <p>An exception to this rule of evidence is when the declaration or entry is part of the res gestae.</p> <p>4. Trial practice—Who has affirmative of issue.</p> <p>The plain! iff in his complaint averred a note and a payment thereon within six years. The answer denied each allegation. Held, the affirmative of the issue was not with the defendant.</p>

<p>Appeals from -orders, of the Kings county special term quashing writs of certiorari and affirming the proceedings of the Commissioners of the Department of Fire and Buildings of the City of Brooklyn.</p>

<p>Appeal from a judgment of the county court of Queens county dismissing the complaint herein.</p>

<p>Mortgage—Foreclosure—Reference to compute.</p> <p>In an aclion to foreclose twelve certain mortgages, made to secure future advances, tiie trial judge found all the facts for the plaintiff, and ordered judgment in his favor. But instead of computing the amount due upon the mortgages in court, which would have occupied much time, sent it to a referee to make the computation. The judgment was subsequently ordered upon the findings and decision of the court and the report of the referee. Udd, not error.</p>

<p>Evidence—Competency oe in action fob negligence—Damages.</p> <p>On the trial of an action brought to recover damages for an injury received while the plaintiff was attempting to board one of defendant’s trains; the plaintiff was asked “Did the foreman” (she was working in a factory at the time) “ excuse you from work by reason of your injury? ” to which she was allowed to answer over objection and exception, “my boss was sorry for me; he knew I had to work and make my living and he gave me a girl help, if they were not very busy.” Held, that the question and answer were incompetent and inadmissible.</p>

<p>Appeal from a decree of the surrogate’s court of Kings county taxing certain property of a non-resident decedent.</p>

<p>Criminal law—Incest—Proof of relationship.</p> <p>The defendant was tried on an indictment charging him with incest with his illegitimate daughter. The mother was dead at the time of the trial. Held, that the fact, that the person with whom the crime was committed was his daughter, could be established by the best evidence o£ which the nature of the case admitted.</p>

<p>Obdee of abbest—When not set aside undee Code Civ. Peo., § 573.</p> <p>Defendant was taken in custody by sheriff under an execution issued against his person. On a motion for his release from said custody, and to set aside said execution because that more than three months had elapsed since the entry of the judgment, and that more than ten days had elapsed since the return of the execution against his property: Held, that in any case arising under Code Civil Procedure, § 573, the order can be refused where reasonable cause is shown therefor.</p>

<p>1. Insurance—Marine—What interest instjrabbe.</p> <p>If the assured has some right in or against the property insured which " some court will enforce upon the property, a right so dependent for value upon the continued existence of the property as that a loss of it will cause pecuniary damage to him, he has an insurable interest.</p> <p>S. Same—Expense of raising and towing vessel to place of safety</p> <p>RECOVERABLE UNDER POLICY."</p> <p>The expense of raising and towing a vessel to a place of safety, is a proper charge under a policy of marine insurance, as it is a contribution or loss caused by the particular peril insured against, such peril being the proximate cause of such expense.</p>

<p>Appeal from a judgment.</p>

<p>1. Railroads—Land taken under right of eminent domain—Value— how estimated.</p> <p>On an appeal from the damages awarded by appraisers of certain property condemned for railroad purposes: Hid, that it was for the appraisers upon the testimony before them, to determine what was the value of the-property for the uses to which it could be most advantageously applied</p> <p>3. Same—Object of statute.</p> <p>The object of the statute, giving corporations right- to acquire land, etc for certain purposes, is not to enable them to acquire property for a less sum than the owner would thus be able to secure in the open market. The object is, that corporations, upon paying such sum as the owner might reasonably and fairly expect thus to receive, they may be enabled to possess and enjoy such property as public policy requires to he devoted to their purposes.</p>

<p>Mortgage—Foreclosure—Order of publication—Sufficiency of— Affidavit.</p> <p>The affidavit on which an order of publication was made in a suit to foreclose a mortgage stated "that the defendant is nota resident of the state, but resides in the city of Portland in the state of Oregon, as deponent, is informed by making enquiries of one * * * a friend or relative of said, J. M.” Held, that the affidavit was sufficient.</p>

Contributory negligence—Railroad—Walking on track. Held: that he had no legal right to be upon the track, and while others commonly used the track as a pathway, he and they owed the utmost vigilance for their protection in view of the danger. The deceased was guilty of contributory negligence and a nonsuit was proper.

Plaintiff and respondent obtained a judgment in the county court of Bungs county by entry therein, on the order of the general term, granting the same, on motion of the respondent. The jury found for the respondent for a claim for an unpaid balance, and due for teacher’s wages in school district No. 6, Gravesend. The county judge set aside the verdict of the jury, and granted a new trial to the defendants, the trustees.

<p>1. Negligence — Municipal cobpobations—When liable fob—ConTBIBUTOBY NEGLIGENCE, "WHEN A QUESTION FOR THE JURY.</p> <p>The defendant, during or just after a certain snow storm, shoveled off one of its crosswalks and threw the snow upon an iron grating at the corner, which was designed to carry off the water from the street. This grating became clogged so that it did not do its work, and 1he water thrown on the sidewalk, hy reason thereof, froze and made it slippery. The plaintiff slipped thereon, while exercising the greatest caution in crossing, and was injured. Held, that the direct act of the defendants was the cause of the accident. That the question of contributory negligence was one for the jury.</p> <p>18. Same—When court may grant nonsuit.</p> <p>In a case where the plaintiff’s neglect is a matter of law, the court is justified in granting a nonsuit for that reason.</p>

<p>Certiorari to review the action of the board of police commissioners of Long Island City in dismissing the relator, who was tried upon the charge of violating the rule of the police force against receiving a gratuity, and not reporting it to his captain.</p>

<p>Appear from a judgment of the county court of Dutchess county and from an interlocutory order of said court.</p>

<p>Appeal from a judgment entered in favor of the defendant, on the report of a referee.</p> <p>In the latter part of November, 1884, one Fox, commenced to remove a fence adjoining his property along a public highway, in the town of Ossining, and to rebuild the same out into the highway some eight or ten feet from the former location of the fence, and placed the foundation stones in the gutter along the side of the highway, for a distance of about two rods.</p> <p>Before so placing these stones, Fox, by his agent, applied to one Wheeler, then a commissioner of highways of said town, for him, said Wheeler, to designate him, said Fox, the line of the highway adjoining his land at the place where he desired to rebuild said fence.</p> <p>The line was staked out and Fox commenced to build on that line, and placed the foundation stones on or near said line in the gutter along the side of the road as above-stated. On the 10th or 11th of December, 1884, the attention of Bartholomew Ryder, another of defendants commissioners, was called to the manner in which Fox was building his fence, and the obstruction to the highway caused thereby. On the same day a meeting of the commissioners of highways of said town was held, and at said meeting a resolution was passed directing Fox to remove the said obstruction. This notice was served within a day or two after-wards on Fox, to which notice Fox paid no attention, and the commissioners did nothing further in the matter until in April, 1885, at which time the stones still remained as. placed by Fox. The point where these obstructions were placed was on a hill. During the week prior to the 25th day of January, 1885, there was a fall of snow succeeded by rain. These stones blocked up the gutter on the side of the highway and caused the water to flow across the same, so that on the 25th day of January, 1885, ice had formed across the traveled part of said road and made the same to slope to the opposite side and to a picket fence. The road between the obstruction (the stones aforesaid), and said picket fence was sixteen feet wide.</p> <p>On the 25th day of January, 1885, the plaintiff was passing over that part of said highway which was so obstructed, driving a horse attached to a wagon in which plaintiff and her sister were riding. As she was passing the point above-mentioned her horse was started at these stones in the gutter, and shied from them, the wagon slipped sideways or slued on the ice and struck the picket fence which frightened the horse and he jumped ahead and the wagon hit a tree a few feet away, a wheel of the wagon was broken; the plaintiff was thrown to the ground, and seriously injured; the horse got away and the wagon was broken in pieces.</p>

<p>Appeal from a judgment entered upon a verdict directed by the court, for the plaintiff, at the close of the evidence in a case tried at the Orange county circuit, and from an order denying a motion for a new trial, on the judge’s ¡feninutes.</p>

<p>1. Insurance broker—When agent oe company.</p> <p>One Shelton was an insurance "broker who was paid, by defendant, a com- . mission on the business he brought His office was with another company, for whom one Keegan was bookkeeper. Keegan solicited the insurance in question, and “placed it through Shelton Held, that both Shelton and Keegan were the agents of the defendant company and not of the plaintiff, the insured.</p> <p>2 Same—Insurance—Fire—When renewal contract takes effect.</p> <p>As long as the renewal receipt remained with Shelton or Keegan, it was in the custody and control of defendants, and not of the insured. The delivery of said receipts to the insured was the inception of the renewal contract of insurance.</p> <p>8. Insurance—Fire—What interest insurable.</p> <p>The plaintiff made a general assignment. Afterward, with the consent of all his creditors the property embraced in said assignment was, by the assignee, reassigned to plaintiff. After such reassignment the plaintiff received the renewal receipt. Held, the plaintiff was in equity then the owner of the property - and insurance in his name was valid.</p>

The plaintiff slipped and fell on the ice opposite the apartments of a Mrs. Cannon, and received the injuries complained of. The sidewalk in front of the premises where plaintiff fell is seven feet wide, and the lands of Dougherty in front of his store-house ran down to the sidewalk line. The whole distance from the curb to the steps of the house was open and used by people as a walk.

<p>Will—Construction of.</p> <p>The testator, by Ms will, directed the residuum of his estate to be distributed among certain persons, or classes of persons, each to take a share. After giving five shares to certain persons, then followed a clause: “One share to each of the children living at the time of my death, of my. deceased brother Isaac Barker; ” the same provision was then made as to the children of certain of his deceased brothers and sisters, then follows, “but in case any one or more of the children of either or any of my deceased brothers and sisters mentioned in this clause of my will shall die, or have died before me, leaving lawful issue, then and in that case such issue of my deceased nephew or niece shall receive the share which his or her ancestor would have received under this clause of my will had he or she been living at the time of my death,” etc. Some of the nephews and nieces, children of the-said deceased brothers and sisters, had themselves died before testator’s will was made. Dbld, that the children of such nephews and nieces took the share which the parent would have been entitled to if he or she had lived until the will took effect.</p>

<p>1. Negligence—Railroad.</p> <p>The deceased, a small hoy, was attempting to get upon the platform of the defendant’s cars at a certain station to go as a passenger. The train, which was large and crowded, had stopped at the station. The hoy got two steps up, and as he was about to reach the platform the car suddenly Started and threw him under the cars and killed him. Held, that there was sufficient evidence of negligence to impose liability upon the railway company.</p> <p>2. Evidence—Secondary evidence—When admissible.</p> <p>Before a copy of a paper is admissible in evidence either the loss of the original must be shown or that a subpoena to produce it was served.</p> <p>3. Trial practice—Impeaching a witness.</p> <p>In order to introduce in evidence a former statement of a witness for the purpose of impeaching him, the attention of said witness must be called to the time and place and to the persons to whom or in whose presence the statement was made.</p>

<p>Appeal from a judgment in favor of defendant entered upon a non-suit granted at a circuit court held in Kings county.</p> <p>The plaintiff showed that on April 20, 1884, between seven and eight o’clock p. m., when it was nearly dark, the deceased drove along Thompson avenue toward the railroad crossing; as he approached the crossing his view was obstructed to some extent until he reached a point thirty feet south of the crossing. At the same time one of defendant’s trains was also approaching the crossing. It neither blew its whistle nor rang a bell, and owing to the dust upon its tracks did not make much noise. But with the gates at the crossing raised, and the flagman away, the train continued down the track, struck the carriage in which deceased was riding and killed him instantly.</p>

<p>Appeal from an order directing a judgment, upon the ground of the frivolousness of the answer.</p>

<p>1. Negligence—Street railroad—Liability for injury</p> <p>In an action for damages for injuries received while alighting'from one of the defendant’s cars, caused by the sudden starting of said car, by reason of the horse attached thereto starting Held, that the mere fact that the horse suddenly became fractious or reckless was not enough, standing alone, to charge the defendant with negligence.</p> <p>8. Judge’s charge—How construed on an appeal</p> <p>A charge to a jury is not to be judged by an isolated sentence severed from its connection with the balance of the charge, but by its general scope and the effect it must have had upon the jury. If it is evident that the jury could not have been misled, and that the real issue was properly submitted to the jury, the verdict must stand, notwithstanding some erroneous expressions in the charge.</p>

<p>Appeal from an order directing a verdict for the plaintiff.</p>

The plaintiffs sued to foreclose a mortgage for $6,000, made by Elizabeth Meehen and Hugh Meehen to their testator on February 17, 1883, covering premises on the east side of Lexington avenue, north of One Hundred and Eighth street, in the city of New York, joining the university of Rochester, as a subsequent incumbrancer.

<p>Appeal from, judgment entered upon the verdict of a jury rendered by direction of the court, and from order denying motion for a new trial.</p>

This is an application by the petitioner to set aside and cancel a certain assessment roll levied by the assessors of the city of Buffalo, under and in pursuance of a resolution by the common council of said city, directing them to levy the sum of $183,493.09. The amount being the sum determined by the common council as necessary to pay the-awards, costs and expenses incurred in extending Ellicott street from Seneca street to Exchange street, in said city.

” The decree is based upon findings of facts and conclusions of law signed by the surrogate on the 25th of May, 1886. Held: with a valuation set opposite each classification of property, and the final specification therein contained was the following words: “The farm and grounds on which the university buildings are located, consisting of about 260 acres, including the buildings and reservoir, $69,683.33.” This last item was made the subject of…

<p>1. Pleadings—Relief demanded in complaint—Not a test of cause OF ACTION.</p> <p>This action was brought against the defendant therein by the attorney general of the state. The complaint charges the defendant with having intruded into and usurped the office of quarantine commissioner and unlawfully retaining such office, alleging in support of this charge the following facts: That the defendant, at the time of his appointment, was not a resident within the me ropolitan police district, as required by the statute authorizing the appointment of such commissioner; that he had not, since his appointment, been there resident, and that he had omitted to take the oath of office required by law. The following judgment was demanded, viz.: That the defendant might bi adjudged guilty of usurping and intruding into said office and unlawfully holding and exercising the powers and franchises there, and that he has forfeited the same to the state; and further demi.nd was made that final judgment be rendered, ousting and excluding him from the said office, and that he be made to pay a fine of $2,000 to the state Held, that the relief claimed was generally consistent with the alleged cause of action, and if not, that it would not constitute the test of the cause of action, as in case of the inappropriateness of the relief demanded, the court had power to conform the judgment to the facts alleged and established by evidence.</p> <p>2. Oath of office — Omission to take—Not an omission in performance OF OFFICIAL DUTY ESSENTIAL TO RIGHT TO OFFICE.</p> <p>Held, That the omission to take the oath of (.ffice was not an omission to perform a duty incident to the office, but rather to perform an act required by law to entitle him to enter upon the duties thereof.</p> <p>3. Actions—What is not local within Code Crv. Pro., § 983, subd. 2.</p> <p>Held, That the act or omission contemplated by Code Civ, Pro., § 983, subd. 2, as the basis of the cause of action, which can be regarded local within the intention of the ¡ tatute, must relate to the performance of some act or the omission of a duty arising out of and in the course of the execution of the duties of an office, and that the complaint stated no such, case.</p> <p>4 Same—What is not local within Code Crv. Pro., § 983, subd. 1.</p> <p>Held, That the complaint had not the elements essential to the statement of a cause of action for the recovery of a penalty or forfeiture, and was, therefore, not such as to render the action local within the provisions of Code Civ. Pro.. § 983 subd 1.</p> <p>5. Same—Brought in name of state — in the nature of quo warranto—Triable in any county of state.</p> <p>Held, That in actions of the nature of the one at bar, brought in behalf of the state, the place of trial could properly be located in any county of the state.</p>

The action was for the conversion of personal property. The referee found, plaintiff about February 15, 1887, delivered to defendant the sum of $1,700, with directions to invest the same for her on bond and mortgage, and the defendant agreed so to invest it, he being her attorney, and an attorney and counsellor at law; that he did not invest the money on bond and mortgage as he agreed to do, but having, July 6, 1877, paid back to plaintiff $100 of the money; he wrongfully…

<p>1. Mortgage—Not negotiable.</p> <p>A mortgage is not a negotiable instrument. But the purchaser takes subject to all the equities of the mortgagee.</p> <p>2. Bills and notes—Liability of an indorser to a subsequent indorsbb</p> <p>—Extent of.</p> <p>On a note made by Joseph B. Reilly there were several indorsers, one being Jane E. Reilly Subsequent to her one Beckwith became an indorser, to secure whom, Jane E. Reilly executed to him a mortgage on certain property. Beokwith never suffered any damages by reason of his indorsement, but assigned the mortgage to another who assigned it to the plaintiff. The plaintiff now brings an action to foreclose. Held, that the mortgage was executed to secure Beckwith from any damages that he incurred ana, therefore, neither he nor his assignee could enforce the same.</p>

<p>Appeals—Weight oe evidence—Findings oe keeekee.</p> <p>The findings of a referee "will he sustained on appeal, unless they are without evidence or against the weight of evidence. Following Sherwood v Hauser, 941ST T., 626.</p>

<p>What constitutes pbinctpai. and agent—Agency—Payment to one not</p> <p>AN AGENT NO DEFENSE.</p> <p>The goods were sold in plaintiff's name, and the defendants were not instructed as to tire agency of one in plaintiff’s employ. However, they paid to him the balance due, which money was used by him to liquidate an account on which both he and the plaintiff were indebted. Held, that the court was not justified in directing a verdict, and holding as a matter of law that this employee was an agent. That is a question of fact for the jury to decide. Lasdoi'T, J., dissenting, on the ground that the recovery by the defendant was substantial justice, as he should he regarded as the equitable assignee of the plaintiff’s creditor, to whom the payment had been made by the employer.</p>

<p>Appeal—Question oe pact—Section 8064, Code Civ. Pro.—General</p> <p>TERM WILL NOT REVIEW COUNTY COURT.</p> <p>The general term will not review the county court on a question of fact on an appeal from an inferior court.</p>

<p>1. Evidence—Conversion—Defense—Judgment and execution under</p> <p>WHICH UNLAWFUL TAKING TOOK PLACE.</p> <p>Where a party in attempting to defend against a charge of conversion offers in evidence the judgment and execution, by reason of which the properly was seized, though material evidence it will not be error to reject it unless it be made to appear that the person against whom the judgment was recorded and against whose property the execution was levied was the owner'of the property.</p> <p>3. Witnesses—Cross-examination—Extent of</p> <p>The extent of a cross-examination of a witness is veiy largely a matter of discretion to be exercised by the court</p>

<p>Costs—Extra allowance—Title to land involved.</p> <p>An action of ejectment was brought as to a parcel of land. The recovery was limited to a part of this parcel, but there was no proof of the value of this portion. The motion for an extra allowance was denied. Held, that as the title to the whole parcel was apparently litigated, that the subject-matter -involved was the whole land described in the complaint. If the court was of the opinion that the price was all which the parties really litigated, that circumstance would influence the court in the exercise of its discretion.</p>

<p>Supervisors—Police magistrates—Kind of report required by the board—Laws 1864, chap. 341—Right to a writ of mandamus.</p> <p>The relator was a police magistrate. He had received from an accused, for whose examination upon two charges of crime, he presented his bill to the board for audit, the sum of fifty dollars. In his report he applied thirty dollars to the payment of charges alleged to have been incurred or assumed by the accused; $33.50 of which were for the relator’s services, other than in his capacity as magistate. The remaining twenty dollars he credited to the county upon his fees, but made no report of the items. Held, that chapter 341, Laws 1864, makes the report a condition precedent to the officer receiving payment for his services. That the board is an auditing board and is entitled to all the facts which a complete report would afford and that when the relator withheld the facts he failed to show to the board that clear legal right to the allowance of his bill which made it their duty to audit it. That the relator would not be entitled to the writ of madamus, unless he established the fact that on the case presented to the board of supervisors that body failed to do their duty.</p>

<p>Exceptions—Exclusion op admissible evidence—When not a ground</p> <p>FOR REVERSAL.</p> <p>Where it is evident that the exclusion of the evidence could have worked no harm, and that if it had been admitted it could not have changed the result, though error, it will not be a sufficient ground for a reversal.</p>

<p>Appeal from a judgment of the county court of Sullivan county, reversing a judgment rendered by a justice of the peace, upon the verdict of a jury, with costs.</p> <p>The action was upon contract to recover, as stated in the complaint, for labor performed for defendant, and moneys received by defendant for plaintiff’s use and benefit and which he neglected and refused to pay over. The answer was a general denial, the statute of limitations, settlement and satisfaction, and counterclaim, for labor performed, money loaned and expended, and goods sold and delivered. The appeal was upon the questions of law, and no new trial was had in county court.</p> <p>The plaintiff gave evidence on the trial tending to show defendant employed her to take care of a woman, who was then sick, and afterwards died; that she did take care of the sick woman for ten weeks, at the agreed price of two dollars per week; that after the death of the sick woman, defendant called upon plaintiff, ascertained what she claimed for her work, and undertook to and did make a bill for this and other claims of his own, and present it to the executors of the estate of the deceased woman, and collect and receive the money, twenty dollars, which he had never paid over to plaintiff. This evidence was contradicted by evidence given on the part of the defendant, who admitted the ten weeks work was performed, but denied he hired or agreed to pay plaintiff himself, or that he ever presented any bill for such labor to the executors, or received any money thereon. These questions of fact were contested, and the jury, before which a trial was had, rendered a verdict for plaintiff, which was the judgment originally appealed from.</p>

<p>Appeal from an order made at the Albany special term, May, 1887, Justice Landon presiding, granting an extra allowance of costs of $300.</p> <p>The action was brought to set aside certain deeas of real estate from respondent’s husband through a third party to herself, for fraud. The action was tried at special term, before Justice Landon, and resulted in a judgment for plaintiff therein. On appeal, the general term reversed the judgment, and ordered judgment absolute for defendant, on the ground the plaintiff had no judgment for Ms debt, and therefore could not maintain the action. Thereupon the order appealed from was made.</p>

<p>1. Negligence—Contbibutoby negligence—Question of fact.</p> <p>The question of contributory negligence is generally one for the jury. 3. Same—Duty of public officees.</p> <p>Plaintiff, in June, while driving over a bridge, saw some defects and notified the commissioners, who put a board on the hole, and left the bridge otherwise the same and open for travel Held, that this same person was not guilty of contributory negligence in continuing to use the bridge, notwithstanding his observations some time previous to the accident. That he could not be charged with negligence in using the bridge which the commissioners were supposed to have examined, and which they left open for travel. That in view of the circumstances, before he could be charged with negligence, there was needed some very definite and positive knowledge on his part that the bridge thus asserted to be safe by the public officers was in fact unsafe.</p>

<p>1. Corporation and joint stock companies—Tax on piling articles op association—Laws 1886, chap. 142.</p> <p>A certain railroad company was incorporated, on March 1, 1878, by filing articles of association in the secretary of state’s office, with a capital stock of $2,250,000. Said railroad afterward mortgaged its property, the mortgages were foreclosed and the railroad, etc., sold. It was bought by the relator and reorganized under a new name, with a capital stock of §9,000,000, to be divided into 90,000 shares. The secretary of state refused to file the articles of association of the new company until the relators paid the tax of one-eighth of one per cent on the capital stock, which the company was authorized to have in accordance with the provisions of chapter 143, Laws 1886. Held, that the secretary of state would not be compelled to file said articles of association until the tax was paid.</p> <p>3. Same—What constitutes a new corporation.</p> <p>Held, that the company formed under the reorganization was a new corporation within the meaning of said act.</p> <p>3. Same—Re-incorporation—Liability to tax.</p> <p>If the relators were seeking to re-incorporate the old company under the old name with no increase of capital stock, quaere whether they would have to pay the tax.</p>

<p>Appeal from an order of the supreme court general term of the second department, affirming an order of the special term affirming the removal of the relator as an inspector of kerosene, from the department of fire and buildings of the city of Brooklyn.</p> <p>The facts and nature of the proceedings are set forth in the opinion.</p>

<p>1. Appeals—Ootjrt op appeals—Order op general term not specifying THAT REVERSAL WAS UPON QUESTIONS OP PACT—EFFECT OF.</p> <p>Where the order of reversal of the general term, does not specify that the reversal was upon questions of fact, its justification must be found in some error of law revealed by the record.</p> <p>8. Same—Finding op pact—When not to be reviewed.</p> <p>When the trial court makes a finding of fact, its finding does not present an error of law unless it is unsupported by any evidence or is against the evidence. This finding, not disturbed by the general term, concludes the court of appeals, if there was any evidence upon which it could probably be based.</p> <p>3. Corporations—Corporate liability, for the acts op its oppicers— Fraudulent representations.</p> <p>The plaintiff brought an action to recover from the defendant damages sustained by reason of the misrepresentation of the president. Plaintiff purchased, from the president, fifty shares of its stock, relying upon certain stateme-'ts made by the president of the financial condition of the bank. These statements were found to be false and fraudulent. The particular shares of stock sold to the plaintiff had previously been purchased by the president of the bank, taking the bank’s funds and securing their return by the deposit of a note. The evidence showed that he sold these shares to the plaintiff not as president. Held, that the president had no actual authority to buy this stock for the bank, and that he could have no implied authority to buy it and thus violate the laws; that he did not, in fact, buy it for the bank. In taking the funds of the bank to make the purchase be committed a breach of trust. That, therefore, the bank did not own the stock, and, as weighing the evidence, it appears that the transaction was had with the president individually the plaintiff is left without a cause of action against the bank.</p>

This is an appeal from the judgment of the supreme court, third department, affirming the judgment entered on a trial before the court without a jury. George Stover, of Cambridge, 1ST. Y., died, leaving among his assets a promissory note made by James Barr, on which there remained due $3,753.11. In his will his. widow and Ebenezer J. Balch and James Barr, the debtor, were named executors, and they all qualified.

<p>1. Well—Revocation of by codicil—Effect of exception.</p> <p>A codicil, by its terms revoking all of a certain class of bequests, except certain therein distinctly referred to, does not operate on the latter, and the cohtention that it operates as a revocation in toto, and that the words of the exception are effective as creating new bequests, is groundless.</p> <p>2. Guardian—Bond of under Code Orv. Pro., § 2746.</p> <p>Held, that in this case a distributive share being payable to an infant the guardian, although having given security on his appointment, must execute and deposit a bond in pursuance of Code Civ. Pro., § 2746, before he could obtain possession of it.</p>

<p>1. Will—Probate of—When paper offered regarded with suspicion.</p> <p>Where a will has been prepared or procured by one interested in its provisions, an additional burden is imposed upon those who seek to establish it. The circumstance is regarded by the court with suspicion and jealousy, and there must be stronger proof than would else be required, that the paper propounded expresses the free unbiased testamentary purpose of the alleged testator, and not merely the wishes of the interested beneficiary.</p> <p>3. Same—Confidential relation between testator and beneficiary —Inference of fraud.</p> <p>The existence of a confidential relation, such as subsists between physician and patient, implies peculiar opportunities for the exercise by the former over the latter of influence and authority, so that if he has been instrumental in procuring from his patient a will containing provisions greatly to his advantage, fraud and undue influence will readily be inferred, unless jealous suspicion is put to rest by satisfactory testimony.</p> <p>3. Same—When not admitted to probate.</p> <p>I+ appeared in this case that the decedent was of doubtful testamentary capacity at the time of making the will, that she soon afterward became insane. That she demurred when asked to execute it, and said that before signing it she wanted time to consider, because its provisions were not quite to her liking. It did not appear who originated the pretended will or where it had been since it came into being, etc. Held, that the paper was not deserving of probate.</p>

<p>• It appears from the complaint, that Johnstone, Keese and others were sued in the supreme court, upon a joint and several indemnity bond, in which Keese was principal and the others sureties. Johnstone and Keese defended by the same attorneys. The complaint was dismissed at circuit, and the joint costs of Keese and Johnstone were adjusted at $372.55. On appeal to the general term, the judgment was affirmed, and the joint costs of Keese and Johnstone were taxed at $86.70. Upon a further appeal taken to the court of appeals, the defendants here executed the undertaking now sued on by Johnstone. It is in the usual form of such an instrument, and was intended to operate as a stay by securing the payment of these costs. The court of appeals affirmed the judgment appealed from as to Johnstone, with costs, but reversed it as to Keese and the others by granting a new trial, with costs to abide the event. Johnstone’s costs on the appeal to the court of appeals were taxed at $96.25, and have been paid.</p> <p>Johnstone then began this action, claiming the whole of the costs which had been awarded to himself and Keese at the circuit and general term. Defendants demurred to the complaint on the grounds:</p> <p>First. That it did not state a cause of action.</p> <p>Second. That Keese should have been made a party plaintiff or defendant</p> <p>The demurrer was overruled and judgment was directed for the full amount claimed and defendants appealed from the interlocutory judgment and order.</p>

The court ordered that the plaintiff serve on the defendant within three days a bill of particulars of the services alleged in the amended complaint, and directed that the defendant have two days after the service of said bill in which to serve his answer.. On June 9 a bill of particulars was served, which was on the same day returned because not verified.

<p>Usury—What constitutes—Cannot be implied.</p> <p>In order to constitute usury, there must be a corrupt intent to take more than lawful interest. A usurious agreement cannot be implied against the intention, acts and declarations of the parties.</p>

<p>Appeal from judgment directed in favor of defendant.</p>

<p>Subrogation—Right to.</p> <p>Where a person and his nominee are entire strangers to the parties in the action, they stand as mere volunteers and have no right to subrogation The doctrine of subrogation only applies where a party is compelled to pay the debt of a third person to protect his own rights or to save his oxvn property.</p>

On the night of the 6th of July, 1885, the plaintiff purchased a train ticket from Hew York to Boston, and also a sleeping car ticket. He left New York on the 10:30 P. si. train, and was assigned to lower berth ten on the car Boston.” The upper berth was occupied by another pas• senger. The beds were made up before the plaintiff entered the car. Immediately after entering, the plaintiff gave his tickets to the colored porter and retired for the night.

<p>1. Insurance' (AccroENT)—Policy—Clause in, avoiding it in case of</p> <p>suicide.</p> <p>In an action upon an accidental insurance policy, which contained a clause avoiding it in case the insured destroyed his own life: Meld, that the burthen of proof is upon the defendant to show that the insured came to his death from causes against which he-was not insured.</p> <p>2. Same—Question for jury.</p> <p>When the case was submitted to the jury under an unexceptionable charge, and they found for the plaintiff, and the proof amply sustained, a finding that the death was accidental, and the defendant failed to establish any other cause against which plaintiff’s intestate was not insured, the appellate court will not interfere with their verdict</p>

<p>1. Practice—Writ oe quo warranto—Judgment of ouster under Code Civil Pro., § 1956, not a forfeiture under section 983—Code Civil Pro., § 1948—The fine not a penalty.</p> <p>This action was brought against the defendant under Code Civil Pro., § 1948, on the ground that he had no right to the office of quarantine commissioner, of which he was in possession. If judgment should he rendered for the people, it would be a judgment of ouster and exclusion from the office under section 1956. Held, that such a judgment would not he a forfeiture under section 983, subdivision 1. Nor would the fine, which according to section 1956, might be imposed, be a penalty under section 983, subdivision 1.</p> <p>2. Same—The action under Code Civil Pro., § 1948, same as information IN NATURE OP WRIT OP QUO WARRANTO UNDER 2 REV. StAT., 581, § 28, ETC.</p> <p>The proceeding, by information in the nature of a writ of quo warramto to inquire hy what authority the defendant supported his claim to an office of which he was in possession, was incorporated in 2 Revised Statutes, 581, § 28, et seq., and has been substantially followed in the Code Civil Procedure, § 1948. Although under the Code the proceeding is an action instead of an information, still it remains,the same in character.</p> <p>3. Same—Mature op action—Answer.</p> <p>The action calls upon the defendant to show by what authority, he exercised an office which he is alleged to usurp. It then becomes the defendant’s duty to answer and to show his authority, or else deny that he is exercising the office.</p> <p>4 Same—Complaint—What to contain—Duty op oppioe-holder.</p> <p>Unless the people also ayer in the complaint, as they may do, that some other person (called the relator) is entitled to the office held by defendant, it is not necessary to set forth in the complaint the grounds of the defect in the defendant's claim to the office. It is enough to aver that he unlawfully exercises the office and to call upon him to set up and show his title if he has any. Every man who exercises an office must be ready to show his authority, whenever the people, in the appropriate manner, demand to know it.</p> <p>5. Same—Complaint—When it contains only one cause op action—</p> <p>Misjoinder.</p> <p>The complaint is expressed as if there were two causes of action. Held, that it was impossible to make two causes of action out of a litigation over the single question whether the defendant lawfully held a certain office at the commencement of the action; that whatever facts tended to show that he did or did not lawfully hold that office at that time, those facts bore on that one cause of action: that these allegations were not required by Code Civ. Pro., § 1948.</p> <p>6. Same—When two causes op action inconsistent.</p> <p>Held, that there was no inconsistency between the allegation that the defendant lived in Owego and the allegation that he took the oath of office before a notary. Each allegation, if true, shows that he did not lawfully hold the office when the action was commenced.</p>

<p>Writ of prohibition—When refused.</p> <p>The justice to whom a certain writ of prohibition was directed had jurisdiction over summary proceedings to recover the possession of lands. The facts of the case, and matters which were relied upon to show that said writ should be awarded, were also set up in the answer interposed in the proceedings before the justice. If those matters would show, when proven, that the case was one in which the justice ought not to proceed, because he had no jurisdiction: Held, that it must be assumed that the justice would decide in accordance with the law and the fact and dismiss the proceedings. That an absolute writ of prohibition would not be issued, and that the alternative writ should be quashed.</p>

<p>1. Nuisance—Right to use property.</p> <p>While a man may prosecute such business as he chooses on his own premises, he has no right to erect and maintain a nuisance to the injury of an adjoining proprietor or of his neighbors, even in the pursuit of lawful trade.</p> <p>2. Same—Whether particular use of property constitutes nui-</p> <p>sance FOR JURY TO DETERMINE.</p> <p>Whether a particular use of property amounts to a nuisance to one’s neighbor is a question of fact to be determined in each particular case.</p> <p>3. Same—What constituted a nuisance in this case.</p> <p>Held, that the smoke, smells, dust and soot proceeding from the defendant’s premises were so annoying to the plaintiff in this case as to constitute a nuisance.</p>

<p>1. Specific performance of contract for purchase of- land—When</p> <p>DECREED.</p> <p>One who purchases at a foreclosure or partition sale is entitled to a good marketable title, and should not be compelled to complete his purchase and accept a deed which leaves him to the uncertainty of a doubtful title, or to the hazard of a contest with other parties, which will seriously affect the value of the property.</p> <p>2. Same—Marketable title—What does not constitute.</p> <p>A title which is open to reasonable doubt is not a marketable one, and the court cannot make it one by passing upon an objection depending on a disputed question of fact or a doubtful question of law, in the absence of the party in which the outstanding right is vested.</p> <p>8. Trustee—Power to mortgage trust property—Notice to beneficiaries—Effect of—Laws 1882, chap. 275—Laws 1884, chap. 26.</p> <p>The statute, Laws 1882, chap. 275, and Laws 1884, chap 26, which gives the power to a trustee to mortgage, must he strictly followed. It provides that notice of at least eight days of the application of the trustee for leave to mortgage should be given to the beneficiaries of the trust, if they are within the state, etc. Meld, -that, strictly speaking, the ultimate remaindermen are not beneficiaries under the trust, and no rights which they have under the will can be affected by simply giving notice to the beneficiaries.</p>

<p>1- Special Proceeding—Code Civ. Pro., § 3834.</p> <p>One Plum, who was not a party to the action, sought by certain proceedings to establish the lien of his mortgages and the extent of such lien upon the shares of two of the defendants in an action of partition, after interlocutory judgment for the sale of the premises. The application was made upon a motion, and an order of reference was made to ascertain and report. The relief sought was to have his mortgages paid out of the proceeds of the sale. Held, that it was a special proceeding within Code Civ. Pro., § 3334.</p> <p>2. Same—Costs discretionary—Extra allowance cannot be made— Measure op costs—Code Civ. Pro., § 3240.</p> <p>Costs in special proceedings are in the discretion of the court. An extra allowance of costs cannot be made in a special proceeding. And where costs are awarded in a special proceeding they must be at the rate allowed for similar services in an action.</p>

<p>1. Labor conspiracy—Penal Code, § 170.</p> <p>The relator and certain other members of the executive committee of district assembly 91, Knights of Labor, were arrested for alleged unlawful interference with the employees of certain shoe manufacturers. In one case the committee demanded the discharge of a certain employee because he refused to join the knights, and in tho other, the discharge of a fciernan was demanded under threat of a strike in case the demand was not complied with. The foreman’s employment in other places was interfered with. The committee were brought before the court of oyer and terminer on writs of habeas corpus and e&rtiorari. Held, that the Penal Code, § 170, permits orderly and peaceable co-operation either to advance or maintain the rate of wages. That as an incident to this authorized cooperation—that is to render it effective—a resort to all lawful means of enforcement is allowed.</p> <p>2. Same—When strike unlawful.</p> <p>He'd, that where there is no relation, direct or indirect, between wages and strikes, the combination which brings the latter about for unlawful purposes is a criminal conspiracy. That the strike then involves an injury to the community, and an act injurious to trade.</p> <p>3. Same—Limitations of Penal Code, § 170, over § 168.</p> <p>Held, that limitation of Penal Code, section 170, over section 168, subdivisions 5 and 6, only goes to the extent of legalizing the peaceable and orderly strike when resorted to in good faith for the authorized purpose.</p> <p>4. Same—Does not authorize strike to compel employee to join</p> <p>“ KNIGHTS.”</p> <p>Penal Code, section 170, does not authorize a combination of individuals to compel, by means condemned by section 168, all workmen to join the co-operative forces or to punish those who are supposed to be inimical thereto.</p> <p>• 8. Same—-What amounts to unlawful labor conspiracy.</p> <p>Held, that the facts showed a deliberate purpose to impoverish and crush a citizen for no reason connected, in the slightest degree, with the advancement of wages or the maintenance of the rate. That in the execution of that purpose, they also tend to show acts injurious to trade and acts preventive (by threats) of the exercise of a lawful calling.</p>

<p>1. Receiver’s duty—Effect of appointment of receiver of executorial, ESTATE.</p> <p>Hawley D. Clapp and his son Robert were conducting the business of keeping the Rossmore Hotel, in New York city, when Hawley died. Under his will Robert and another son were appointed executors. It was provided in the will that the hotel busines should be continued, and Robert, as executor, did so continue it. This action was subsequently brought by the widow against Robert, as such executor, and also individually as such. surviving partner, charging him with negligence, etc., and praying for an accounting as executor and also as surviving partner; also for the appointment of a receiver, etc. Upon the consent of all parties, Rand was appointed receiver of all the personal property of which Hawley D. Clapp died possessed, and also of the good will, etc., of the co-partnership, with full power to continue the management of said hotel until such time as the court should determine, etc. Between the death of Hawley and the date of the appointment of Rand as receiver, Robert had become indebted to people who had furnished the said hotel with supplies to the amount of §12,000. Held, that the people who furnished the supplies during the time aforesaid, had a right to look to .the estate for payment, that the estate passed to Rand, as receiver, subject to this equity, and the parties could not deprive them of it by transferring the estate from the office of executor to the office of receiver; that whatever business was done as surviving partner, was subject to a like equity.</p> <p>2. Same—Right of creditors to call to account.</p> <p>Held, that these creditors may call Rand to account, and- are entitled to payment out of what is or should be in his hands. That they are not deprived of their rights by his refusal to regard them, nor because of their long continued patience.</p> <p>8. Same—When chargeable with amount uncollected.</p> <p>The receiver, ignoring the existing creditors, permitted the Clapp family and another to board at said hotel and run up a board bill of §14,000, to collect which no endeavor was made by the receiver. Held, that the receiver was chargeable with the amount of §14,000, which he should have collected from said people.</p> <p>4. Same—Must take active steps to collect debts.</p> <p>The order under which he was appointed receiver distinctly informed him that the partnership estate was tobe taken possession of “with full power to continue the management of the hotel," and the executorial estate likewise, and the receiver was expressly empowered “to liquidate the accounts of the said executorsof Hawley D. Clapp, deceased.” Held, that such a receiver was not to be a passive custodian, with no active duties in direction of reducing the estate to his possession. That it was his imperative duty to use proper diligence to secure the property both of the deceased Hawley and of the partnership.</p> <p>5. Same—When should seek instructions from court.</p> <p>The receiver contented himself with taking possession of the hotel and conducting it at a serious loss. Held, that the receiver should have reported this fact to the court at an early date and taken instructions as to its continuance or discontinuance. That he could not shield himself under the advice of counsel.</p> <p>6. Same—Employment op attorney—Commissions.</p> <p>The receiver employed as his attorney the same attorney who acted and continued to act as attorney for the executor Held, that as the appointment of the receiver was antagonistic to the executor, this was highly improper That the receiver was not entitled to commissions nor to be allowed for counsel fees paid to said attorney.</p> <p>7. Same—Discharge op receiver—When creditors not bound by.</p> <p>The receiver Rand had been permitted to hand over the funds, etc., of the estate to one Callan, who was appointed in his place, without an accounting. Hone of the creditors were either heard on, or notified of the motion made for that purpose. Held, that the creditors were entitled to investigate the conduct of the receiver Rand, and to an accounting, etc.</p>

<p>Examination before trial—Production of book by executive officer of corporation—Code Civ. Pro., § 872, sued. 7.</p> <p>The treasurer of the defendant corporation was directed by an order for the examination of said defendant corporation to appear on its behalf and be examined as a witness and produce certain books kept by said defendants. In the examination of the witness under the order, he declined to produce the books on the ground that they were not in his possession or under his control, and claiming also that they being in possession of the defendant corporation, the witness could not be compelled to produce them. Held, that the hooks must be produced as directed, not necessarily for inspection, but in order that witness, by reference to them, may testify as the order directed.</p>

<p>Appeal by defendants Blackall and Sperry from a judgment entered upon the report of a referee,</p>

<p>_ Appeal from judgment entered upon verdict of Monroe circuit, and from order denying the defendant’s motion for a new trial. The plaintiff alleges that she is the widow of Otis N. Wilcox, deceased, and brings this action for dower in certain premises of which he died seized. The defendant Wilcox is his heir and devisee, and the other defendant is in the possesion of the premises.</p>

<p>1. Highways—Public nuisance — Abatement oe—Destruction oe records—Secondary evidence of contents.</p> <p>This action was brought by the plaintiff’s intestate to restrain the defendants from constructing a dam across a certain stream whereby its waters were diverted from their course on to the lands of the plaintiff. The defendants, some of whom were trustees of a village in which the stream and lands in question were situated, and as such commissioners of highways therein, and the others of whom were the president and street commissioner of said village, claimed that in doing the acts complained of they were restoring the stream to its original channel, from which it was unlawfully diverted in or about the year 1847, by damming up its ancient course and causing it to flow on and along a certain highway in the said village, thereby obstructing it and creating a public nuisance which it was their duty in their official capacity to abate. A question arose as to whether the alleged highway had at the time of the diversion a legal existence, Evidence was given showing that records of highways of the town from 1795 to a date subsequent to 1863, had been deposited in the town clerk’s office, and that such records, extending over the period from 1830 to 1863, had been destroyed by fire. Held, that of the contents of these latter, secondary evidence might be given.</p> <p>S. Same—Laying out—Evidence of.</p> <p>The names of the highway commissioners during the year 3834 were proved by record evidence. A witness called by the defendants testified that he was a surveyor in 1834, and that certain of the part es before proved to have been highway commissioners during that year, called on him to lay out a highway. 'The street in question is located on this survey. At the time it was made the owner of lands through which this highway was laid sold village lots there. Testimony as to some portions of the description of the highway was given by a witness who had consulted the records previous to their destruction. The above stated testimony was not controverted. Held, that the conclusion was not warranted that the street in question was surveyed in 1834, under the direction of the highway commissioner, for the purpose of laying it out as a highway, and that at or about the same time it was recorded, opened and worked, and had ever since been used as a highway.</p> <p>9. Record — Destroyed—Presumption of its regularity—What circumstances warrant.</p> <p>Held, That the fact that there was no express evidence that the order laying it out was signed by the commissioners did not militate against this conclusion. That there being no proof to the contrary, and the fact that it was placed on record, warranted the presumption that it possessed the requisites for record.</p> <p>4. Highways—Legal existence—Evidence of.</p> <p>Held, that independent of the question of the legal and formal laying out of the street, the recognition of the existence of the highway by the sale of lots upon it, and the public use of the street, together with its care by the public authorities amounted to a dedication and acceptance, and such being prior to the diversion of the stream, was sufficient to sustain a finding that the highway then had a public existence.</p> <p>5. Same—Sale of lots on—Acceptance by public and public care—</p> <p>Estoppel.</p> <p>H Id, that the owner of lands, who dedicated the highway to the public was, by the acceptance of the public, estopped from c aiming the right to relieve any other portion of his land from the flow of the stream, by moving it on to the hiahway, to the detriment of the public, and that the plaintiff, whose title was derived through said owners, was also estopped.</p> <p>Referee—View—Determination based on—Cannot be reviewed.</p> <p>The referee before whom the case was tried, with the consent of the parties and in the presence of counsel of both sides made a personal examination and view of the premises and water courses in question. Held, that, so far as his determination in the matter was based thereon, it could not be reviewed.</p> <p>7. Public nuisance—Abatement of—What does not bar right to.</p> <p>Held, that neither lapse of time nor the circumstances under which the plaintiff's intestate acquired his title, nor the attempts of the citizens and public officers of the village to procure a discontinuance of the nuisance without litigation, could give the plaintiff a right to continue it as against the public.</p>

<p>Appeal from a judgment entered upon a verdict in favor of the defendant at the Brie circuit and from an order denying motion for new trial.</p>

<p>Appeal from a judgment of the Ontario county court affirming a justice’s judgment.</p>

<p>Motion by the plaintiff for a new trial on exceptions taken at Cayuga circuit and ordered heard at general term in first instance.</p> <p>The action was brought upon a promissory note which the evidence tends to prove was made by the defendant’s testator for $3,750, dated January 20, 1880, and payable to the plaintiff or order on demand, with interest from September, 1877.</p> <p>The plaintiff was non-suited.</p>

<p>False Imprisonment—Executions—To satisfy judgment out of property, AND IF INSUFFICIENT TO ARREST—DUTY OF CONSTABLE—PROPERTY discovered after arrest made—Liability of officer.</p> <p>It was the duty of the constable to make search for property to satisfy the execution and the right to arrest the judgment-deb or was dependent on the failure to find property. On failure so to do the officer was liable, provided the judgment-debtor had property openly and vis.bty in his possession subject to levy. The fact that the property found is insufficient, is no good reason for failure to levy, unless the value is so small that there is no reasonable possibility of realizing substantially auythii g. The arrest having been made the officer could not then have been required to make a levy or accept anything other than money to satisfy the execution. The officer will be chargeable for an abuse of authority in the execution of the process which results in the unreasonable and unnecessary oppression or prejudice to the person against whom or whose property it is issued.</p>

<p>1. Contract—When promises independent.</p> <p>This action was brought to recover on a note given for $1,500 mentioned in a certain contract, and the consideration expressed for which it was given was the agreement of the plaintiff’s intestate to release quit-claim and set over to the defendant her right title and interest in certain premises and to surrender to him the possession of them with the right to the growing crops, and her agreement was to procure her husband’s interest, i. he had any in the premises. No t me was mentioned for doing this. The said contract contained no promise on the part of the defendant to pay. but the payment was by its terms declared as made and received. This was done by putting the promise into the note in question, expressing a definite time for payment. F. Id, that the promises of the parties arc independent, and neither needed to rely upon an offer of performance to support an action upon the contract or note. (Cases cited.)</p> <p>2. Same—When covenants dependent.</p> <p>There was a further provision in the contract to the effect that when the defendant should pay the $1,500 the intestate and her husband should make certain releases. Feld, that mutual covenants are dependent only when, by the agreement, there is an apportionment of the amount to be paid, into payments applicable to the several parts of the consideration; that the sum to be paid by defendant was an entirety; that the note, having been made at the same time, expressed the promise of the defendant to make payment as the consideration for the agreement of the other party to the contract and must be so treated. Forthrup v. Foithrup, 6 Cow., 296, distinguished.</p> <p>3. Same—When offer of performance unnecessary.</p> <p>Feld, that the provision for the releases was independent of the consideration for which the note was made, and an offer of performance was not a prerequisite to the plaintiff’s right of action.</p> <p>4. Same—Defendant’s remedy for failure to perform.</p> <p>The remedy of the defendant was to require performance or a suit for damages for breach in the event of non-performance.</p> <p>5. Practice—Presumption as to defense.</p> <p>It may be assumed that when defendant’s proofs go no further than his alleged defense, that the full strength of the defendant’s defense is in his answer. In this case it may be assumed that it contains all the breaches of the contract on the part of the plaintiff’s intestate.</p>

<p>1. Nuisance—Stable—Not necessary that person maintaining should</p> <p>HAVE FREEHOLD INTEREST</p> <p>In an action to recover damages for the alleged maintaining of a livery stable in such a manner as to render it a nuisance. Held, that it was unnecessary to allege that the person maintaining the nuisance, was a tenant of a freehold interest in the land upon which it was maintained.</p> <p>2. Same—StnmciENCY ov allegation as to interest in land.</p> <p>Held, that an allegation that said person acted with the consent, by license, lease or otherwise of the owner of the land was sufficient to admit proof of the nature of the in.erest held, especially in the absence of a motion to make it more definite.</p> <p>8. Same—Evidence—Order setting aside verdict—When not disturbed ON APPEAL.</p> <p>Held, that testimony as to facts with regard to the stable, sufficient, if true, to constitute it a nuisance, having been given with great particularity by witnesses, who from their posilion in relation to the stable, were qualified to testify to such facts, and their statemenis being uncontroverted, an order setting a ide a verdict in favor of certain of the defendant, as contrary to the evidence, could not be disturbed on appeal.</p>

<p>1. Evidence—Testimony of experts—When received—Reason of the</p> <p>RULE ALLOWING SUCH TESTIMONY—VALUE OP SUCH OPINIONS.</p> <p>The plaintiff’s boat was moored in the harbor at Buffalo, in Peck slip, which extended from Buffalo river to the ship canal, known as the Blackwell canal. The defendant’s propeller on the night of October 2, 1881, came up the river and in turning to enter the slip for the purpose of proceeding through it to the canal, struck plaintiff’s boat and caused the injury for the recovery of which this action is brought. The fact was established that on the night of the accident, plaintiff displayed a light in the cabin window; one of the witnesses, a mariner for many years engaged on the lakes and familiar with the harbor, was allowed to testify as to how far a bright light of a lamp at the window of plaintiff’s cabin could be seen by a person on the pilot house of defendant’s boat. Held, the ability to answer the question intelligently, was dependent upon some experience of observation. While there may be other conditions influencing the effect of light and distance from which it may come into view, they do not necessarily render the evidence of the witness incompetent, although they might, when shown to exist, go to qualify the force or weight of the evidence. The reason of the rule which permits such evidence, is that knowledge on the subject is not common to all, but comes from the per-</p> <p>, sonal observations and experiences of those only who have given it attention, or by habits and business have gained information which enables them to have and understandingly express a judgment in respect to the matter of enquiry, and when, without the aid of such evidence the jury, might have no means of intelligently considering the fact. The value, when given, of opinions is always for the jury to determine.</p> <p>% Same—Judicial notice—Of what facts.</p> <p>Judicial notice will be taken of the time the moon rises and sets on the several days of the year, as well as of the succession of the seasons, the difference of time in different longitudes, and the constant and unvariable course of nature.</p> <p>8. Negligence—Contributory negligence—Failure to show light on</p> <p>BOATS AS REQUIRED BY ORDINANCES—EFFECT OF.</p> <p>The plaintiff’s boat at the time of the collision did not display the light, required by the city ordinance. Held, that while this omission was a fact properly for the consideration of the jury, on the question of the plaintiff’s negligence, it did not necessarily establish that fact for the purpose of the defense.</p>

<p>Appeal from a judgment entered upon the report of a referee dismissing the plaintiff’s complaint.</p>

<p>1. Fraudulent conveyances—Inadequate consideration—Good faith</p> <p>A QUESTION OF FACT.</p> <p>Where property is worth more than the consideration for which it was sold, the question whether it was made in good faith is one of fact for the court, not necessarily controlled by the fact whether the price paid was equal to or less than its value.</p> <p>2. Same—Statute of frauds—2 Rev. Stat., 135, § 10—Part' perform-</p> <p>ance of oral agreement to sell land—Effect of—Equitable.</p> <p>RELIEF.</p> <p>From a very early day the part performance in the sense which that term is applied, of an oral agreement to sell and purchase land, furnished the right to equitable relief by way of specific performance notwithstanding the statute of frauds Its application was to cases in which damages for non-performance could not accurately be measured and then made to permit fraud which the use of the statute might otherwise produce. This rule is expressly recognized by 2 Rev. Stat., 135, § 10.</p> <p>8. Same—2 Rev. Stat., 137, § 4—Fraud a question of fact.</p> <p>A conveyance shall not be adjudged fraudulent as against creditors solely on the ground that it was not founded on a valuable consideration. 2 Rev. Stat., 137, § 4. The question is one of fact, dependent upon circumstances. The property of a debtor must be devoted to the payment of Ms debts, and when he voluntarily and without a valuable consideration disposes of it to the prejudice of his creditors, such transfer will be treated as fraudulent as against them.</p> <p>4. Same—Insolvency—Fraudulent intent.</p> <p>Insolvency of the grantor at the time of a voluntary conveyance is evidence for consideration upon the question of intent.</p>

<p>Appeal by the defendant from judgment against him entered on verdict of Alleghany circuit.</p>

<p>Appeal by the plaintiff from order of Monroe special term granting a new trial.</p>

<p>1, Justices’ courts—Attorneys—May bind parties by stipulation.</p> <p>Four actions were commenced by the plaintiff against the defendant before a justice o recover penalties for the alleged violation of an ordinance of the village prohibiting any person acting within its limits as common liackman porter or driver of any cab. etc., for hire, without obtaining a license therefor from the board of trustees of the village under a penalty for each and every offense. These actions were commenced, and the first tried judgment being rendered in favor of the plaintiff, which was reversed in the county court. In the other actions, respectively, stipulations were made to the effect that the pleadings and evidence in the first should be considered the pleadings and evidence "in them, and that the justice render judgment therein the same as if tried, and such evidence adduced in them except that the evidence with reference to the violation of the ordinance should be tr ated and regarded as referring to the date of the commencement of those actions respectively. Held, that an objection made that the stipula ions were made by the attorneys for the parties, as such, was not well taken.</p> <p>3. Same—Parties may act by attorneys.</p> <p>Held, that while there is no presumption of authority of attorneys for parties in justices’ courts as in courts of record, they may employ attorneys to appear there for them, with power to manage and control the conduct of the suits.</p> <p>. 3. Same—To be taken as true for purposes of review.</p> <p>The return of the justice states that on the return day of the summons the pa" ies appeared by their respective attorneys and issue was joined and the stipulation above mentioned made. Held, that the return must, for the purpose of review, be taken as true.</p> <p>4. Same—Variance in pleading may be regarded as immaterial— Code Civ. Pro., § 2943.</p> <p>Held, that the fact that the time of the alleged violation was the same in all four actions was only a matter of variance and might be regarded as immaterial.</p> <p>5. Same—When rule that reasonable intendments go in support op</p> <p>JUDGMENT IS APPLICABLE.</p> <p>Held, that the rule that reasonable intendments go in support of a judgment applies to the justices judgment because the affirmance of the judgment of the county court, must depend on error committed in that of the justice.</p> <p>6. Same—Judgments op—Reversal by county court—When justifi-</p> <p>able.</p> <p>Held, that the stipulations added nothing to the evidence, and that the evidence, being insufficient to warrant judgments in the plaintiffs favor, the county court was justified in reversing them.</p>

The indictment contains two counts, and charges that as bailee, agent, attorney, or trustee, of Josiah H. Hartman, having in his possession, custody and control, a check of the value of $300, drawn upon the German American Bank of Rochester for that amount and belonging to Hartman, the defendant unlawfully, fraudulently and feloniously, and with intent to deprive and defraud him of the check and its proceeds appropriated the same to his own use.

The action is for the construction of the will and codicil of Angeline B. Walker, deceased. And it appears that she made her will of date, April 23, 1881, and a codicil of date, May 20, 1884; that she died June 1, 1884, and both the will and codicil were admitted to probate. By the will she gave: First. To her sister, Olive J Hatch, the use during life, of a house and lot, and directed sale after her death and the division of the proceeds between persons named. Second.

<p>Practice—Service of papers by mail.</p> <p>An amended demurrer was attempted to be served by defendants attorney from Yonkers, N. Y., while the attorneys address was “Stewart building," New York city. Seld, that it was irregularly and improperly served.</p> <p>Garret Z. tikider, for resp’t; Allen Lee Smidt, for app’lts.</p>

<p>Motion for re-argument.</p>

<p>Appeal from a judgment in favor of defendant rendered on the trial of the action at the Dutchess county special term.</p>

<p>Foreclosure of mortgage—Re-sale—When not ordered.</p>

<p>Judgment cannot be attacked collaterally.</p>

<p>Will—Objection to probate of—Sufficiency of proof to establish will.</p>

<p>Appeal from a judgment entered upon a report of a referee, dismissing the complaint upon the merits.</p>

<p>Appeal from a judgment.</p>

<p>Stay of peocebdings—When should be set aside.</p>

<p>Praud—Evidence—Sufficiancy of.</p>

<p>Executors and assignees—Personal liability fob costs.</p>

<p>Evidence—Offer of compromise inadmissible—Re-argument ordered— The general rule is that offers of compromise are inadmissible. IN EVIDENCE.</p>

<p>Negligence—Evidence—Sufficiency of.</p>

<p>Claim against estate fob boabd—When fboved.</p>

<p>Negligence—Contblbutoby negligence.</p>

<p>Contbact—When no bbeach.</p>

<p>Appeal from a judgment in favor of plaintiffs entered in this action at the trial thereof at the Dutchess county circuit without a jury.</p>

<p>Divorce — Action to set aside decree for fraud — When application SHOULD BE DENIED.</p>

<p>Appeal from a judgment dismissing the complaint of plaintiffs, with costs.</p>

<p>Foreclosure op mortgage.</p>

<p>Police officer—Removal of—Commissioner can testify—Laws 1871, chap, 461.</p>

<p>Appeal from a judgment in favor of plaintiff entered upon the verdict of a jury at the Kings county circuit and from an order denying a motion for a . new trial.</p>

<p>Appeal from a judgment in favor of defendant, entered on an order dismissing plaintiff’s complaint at the close of plaintiff’s testimony, at the Bungs county circuit.</p>

<p>Appeal from an order quashing a writ of certiorari to review an assessment under Laws 1880, chap. 269.</p>

<p>Practice—A motion to correct irregularity must be made promptly.</p>

<p>Appeal from an order granting leave to discontinue an action, etc.</p>

<p>Appeal from an order staying the trial of an action.</p>

<p>Appeal from a judgment of the Rockland county special term in favor of plaintiff adjudging void certain deeds.</p>

<p>Appeal from judgment and order denying a new trial.</p>

<p>Appeal from judgment on decision of Williams, J.</p>