Volume 102 — New York Reports

CharlesBeckwith, presiding, rendered upon the verdict of a jury, February 3, 1885, convicting the defendant and appellant of the-crime of interfering with and obstructing a certain public street - and highway in the city of Buffalo, known as Beech street, by maintaining on June 1,1884, and continuing, a house and building thereon, contrary to the provisions of section 385 of the-Penal Code.

The nature of the action and the material facts are stated in the opinion. The statute imposing a short bar at six months to a common-law right of redemption should receive a strict construction. (Doe, ex dem.

The nature of the action and the material facts are stated in the opinion. This statute is in derogation of the common-law right of the lessee and must be strictly construed. (Doe, ex dem. Hitchens, v. Lewis, 1 Burr. 614, 619; Hill v. Barclay, 18 Ves. 60; Woodfall’s Landl. and Ten. [7th ed.] 655, 656; Elliot v. Cronk's Admrs, 13 Wend. 39; Hasbrouck v. Paddock, 1 Barb. 635.) Until these judgments were entered in the “judgment book ” there was no valid judgment.

n order made at the Hovember term, modifying, and affirming as modified, a judgment in favor of plaintiff, entered upon a decision of the court on trial at Special Term.

The facts, so far as material, are stated in the opinion. This act of 1885 (Chap. 238) violates section 16, article 3 of the Constitution. (In re Paul, 94 N. Y. 507; City of Watertown v. Fairbanks, 65 id. 588; In re Blodgett, 89 id. 395; In re Lands in Town of Flatbush, 60 id. 398, 407; Peoples.

This action was brought upon a guaranty executed by defendants, which, wherein also the material facts are stated, is set forth in the opinion. The true distinction between demands or rights of action which are single and those which are several and distinct is that the former immediately arise out of one and the same contract and the latter out of different acts or contracts. (Secor v. Sturgis, 16 N. Y. 548; Ref. Prot.

<p>Appeal from judgment and order of general term supreme court, third department, reversing judgment on report of referee in favor of plaintiff, and granting new trial.</p>

(Mem. of decision below, 82 Hun, 508.) This was a proceeding to compel the defendant by mandamus to make an assessment and levy a tax to pay damages awarded the relator for lands alleged to have been taken for a street in the village of Whitney’s Point. The material facts are stated in the opinion. The owner’s consent takes away all objection to proceedings for laying out a road,- and that consent may be oral.

(Reported below, 33 Hun, 349.) The complaint states that on the 30th of November, 1881, one Evans made and executed 'his promissory note, payable four months after date to the order of the defendant for $600; that the defendant indorsed the note; that so indorsed, and before maturity, the note was transferred to the plaintiff for value. It alleges presentment for payment, protest and notice of non-payment, and that plaintiff is the owner of, the note.

This was an action- of ejectment. The defendant did not appear on trial, and an inquest was taken. The motion to set aside' the judgment was made on the ground that the evidence was insufficient to sustain it. The motion to set aside the judgment because founded upon insufficient proof was the proper mode of procedure.

This action was brought to have a lien declared in the nature of a mortgage upon certain premises, the title to which is in the defendant, for moneys advanced by plaintiff to pay for repairs and improvements upon said premises. The material facts are stated in the opinion. Even if plaintiff) had furnished the money to make the purchase of the property it would not entitle him to an equitable lien.

This action was brought to recover of defendant the salary of the office of commissioner of charities of the county of Kings, received by the latter while in possession of that office, the complaint alleging that plaintiff was rightfully entitled to the office and defendant an usurper. The facts are sufficiently stated in the opinion . The judgment of the Supreme Court actually ousted Kessel, and excluded him from the office.

This action was for the alleged conversion of one thousand two hundred and fifty barrels of cotton seed oil. . The oil had been delivered in different parcels to the defend- ' ant, as a carrier of property. It was received by it at Memphis, Tennessee, and Little Bock, in the State of Arkansas, to be delivered at the city of Bew York to J. F. O’Shaughnessy, and bills of lading to that effect were made and delivered upon the receipt of the oil.

<p>The will of K„ after certain specific devises and bequests, gave the residue of his estate to his son Daniel “ and to his heirs; ” then followed these words, “but in case my son Daniel should die without lawful issue, I give and bequeath it to my remaining children, share and share alike.” Daniel survived the testator. Held, that, in the absence of other words in the will showing a contrary intent, the death referred to was a death of the beneficiary during the life-time of the testator; and that upon the death of the latter, Daniel took an absolute estate.</p> <p>By a codicil the testator gave a specific bequest out of the residuary estate to his son James. Held, that this did not indicate an intent contrary to the construction above given.</p>

favor of defendants, entered upon the report of a referee. (Reported below, 17 J: & S. 238.) This action Avas upon a contract, the nature of Avhich and the facts so far as material to the question discussed are stated in the opinion. The admission of defendants’ private books of account as evidence in their own favor was fatal error.

(Reported below, 31 Hun, 522.) This was an action for partition. The material facts are stated in the opinion. Defendants were equitably entitled to the avails of the sale after deducting costs and expenses, and the value of the premises at the time of the execution sale before the repairs and improvements were made. (Willard’s Eq. Jur. 701; Story’s Eq. Jur., § 655 ; Hewlett v. Wood, 62 N. Y. 575; Hall v. Piddock, 21 N. J. Eq. 313; Code of Civ.

(Reported below, 33 Hun, 425.) This action was' brought to have the surrender and transfers of three policies of insurance upon the life of George Davis, the father of the plaintiffs, set aside and declared void- and to have the policies declared valid and subsisting obligations of the defendant, in full force and effect at the time of the death of George Davis, and to recover the amount of the policies, less unpaid premiums.

Akin to be indebted to the petitioning creditor above named in a sum specified, and directing the sale of the decedent’s real estate for the payment of her debts. (Mem. of decision below, 33 Hun, 364.) The material facts are stated in the opinion. A Surrogate’s Court has jurisdiction to try a claim which has been disputed by an executor in a proceeding .instituted by a creditor to compel the mortgaging, leasing or selling of the real estate of a decedent to pay his debts.

Haughian, purchaser at a partition sale herein, to complete the purchase. This they refused to do because of alleged defects in the title.. The facts pertinent to the questions discussed are stated in the opinion. Though the will does not in express terms direct the executors to collect rents and profits during the continuance of the trust estate, yet there is a necessity for so doing implied, and, consequently, the trust is a good one.

Rorthridge, the purchaser at a foreclosure sale herein, to complete his purchase. This he had refused to do, because of an alleged defect in the title, which is specified in the opinion. The regulations of the law were not complied with, and there are no statutes which cure the defect. (Title 3, chap. 5, part 3, R. S.; Code, §§ 16, 78.) The omission in the referee’s advertisement of sale of a portion of the land to be sold did not vitiate the sale of such portion.

<p>Appeal from order of the General Term of the Supreme Oourt, in the first judicial department, made February 3,1886, which affirmed an order of Special Term, the nature of which and of the action as well as the material facts are stated in the opinion.</p> <p>The injunction in this case was improperly allowed for the reason that it does not appear from the complaint that the plaintiff is entitled to final relief by injunction, and in such case a temporary injunction is unauthorized. (McHenry v. Jewett, 90 N. Y. 58.) Plaintiff is not entitled to an injunction on the ground of equitable accounting. (Porter v. Spencer, 2 Johns. Ch. 169; Smart v. Einstein, 35 How. Pr. 241.) A state court has no jurisdiction to restrain infringement of patents. (Hovey v. Rubber Tip Pencil Co., 57 N. Y. 119; Continental Store Service Co. v. Clark, 3 East, 100.) There is no irreparable injury. (1 High, 34; McHenry v. Jewett, 90 N. Y. 58.) The defense of fraud is valid. (Saxton v. Dodge, 57 Barb. 84, 112, 114; Middlebrook v. Broadbent, 47 N. Y. 443; Marston v. Swett, 66 id. 306; 82 id. 534; Cross v. Huntley, 13 Wend. 385; Head v. Stevens, 19 id. 411: Stemner's Appeal, 58 Penn. St. 154.)</p> <p>The appeal should be dismissed because it does not appear upon the face of the complaint that the case is one where by settled adjudication the plaintiff upon the facts stated is not entitled to final relief. (Hatch v. Western Union Telegraph Co., 93 N. Y. 640; Foster v. Buffalo, 92 id. 629; Selchow v. Baker, 93 id. 59; People et al. v. Schoonmaker, 50 id. 500; Rae v. Mayor, 62 id. 631 ; Patten v. N. 7. Elevated R. R., 67 id. 484 ; Brown v. Keeney, 59 id. 242; Calkin v. Manhattan Oil Co., 65 id. 557; Young v. Campbell, 75 id. 525.) The plaintiff is entitled to a final judgment against the defendants, restraining the use, by them, of the machines and inventions covered by the patent, and from selling products containing such inventions, until and unless they pay to the plaintiff the royalties agreed to be paid by the contract. (Hyatt v. Ingalls, 17 J. & S. 375; Union Mfg. Co. v. Lounsbury, 41 N. Y. 372; Brooks v. Stolley, 3 McLean, 523, 529; Day v. Hartshorn, 3 Fisher’s Pat. Cas. 32, 42; Goodyear v. Congress Rubber Co., 3 Bl. C. C. 445, 449 ; Gibson v. Weld, 1 Blatchf. 165, 166; Hartell v. Tilgham, 99 U. S. 547; Adams v. Meyrose, 2 McCr. 360.) The plaintiff is entitled to an injunction order pendente lite to restrain the use, by the defendants, of the machines and inventians covered by the patents, and from selling products containing such inventions, until and unless they pay to plaintiff the royalties agreed to be paid by the contract. (Code, § 603; McHenry v. Jewett, 90 N. Y. 63; Singer Co. v. Union Button Co., 1 Holmes, 253 ; Brooks v. Stolly, 3 McLean, 525; Goddard v. Wilde, 17 Fed. Rep. 845; Day v. Hartshorn, 3 Fish. 36.)</p>

(Reported below, 18 J. & S. 406.) The matter in controversy was as to the right to an award of damages to certain premises by the closing of the Bloomingdale road, which amount was claimed by plaintiffs and by defendant, The Trustees of St. Patrick’s Cathedral. On the 25th day of April, 1871, Edward King and Wm. Henry King were the owners in fee of certain lots of land situate on said road, between Ninety-sixth and Ninety-seventh streets, in the city of New York.

The proceeding was under chapter 230, Laws of 1843. The material facts are stated in the opinion. The system of taxing the appellant’s national bank shares resulted in taxing the moneyed capital invested in them at a greater rate than is assessed upon other moneyed capital in the hands of individual citizens of this State invested in other investments, and was beyond the authority of this State and the jurisdiction of the tax commissioners.

(Reported below, 32 Hun, 38.) This action was brought to recover compensation for services alleged to have been rendered by plaintiff to defendant as its secretary. It was error for the General Term to hold, as matter of law, that because plaintiff was secretary of the defendant, and no agreement' was made as to his compensation, that he could not, therefore, recover for his services.

<p>1. Evidence —Opinion .</p> <p>Where a witness testified as follows: “Mr. H. sat straight up in the</p> <p>seat at the window, and his elbow was resting on the sill, and I should judie that it could not project out of the window by the position that he held it in the car. ’ “It [the elbow] could not be outside the car window. It was probably on a level with the outside of the car. Mg opinion was, from the position, that it was inside.” Feld, that the emphasized words were merely the statement of a cautious witness, and not an opinion, and were properly admitted as evidence.</p> <p>3. Same—Res gestae.</p> <p>Where witness testified that lie noticed confusion produced among the passengers by the rattling noise on the outside of the car previous to the accident. Feld, admissible as part of the res gestee.</p>

<p>Appeal from judgment of the General Term of the Supreme Court, in the second judicial department, entered upon an order made September 9, 1884, which affirmed a decree of the surrogate of the county of Orange, on final, settlement of the accounts of Theodore J. Denton, as executor of the will of Theodore B. Denton,' deceased. (Reported below, 33 Hun, 317.)</p> <p>The facts material to the questions discussed are stated in the opinion.</p> <p>A remainder may he limited upon a bequest of personal property, and it may be limited, upon a bequest of money as well as of other personal property. (Bliven v. Seymour, 88 N. Y. 469; Smith v. Ostrander, 64 id. 278.) It is the duty of the executor under such a will to invest the money, and' pay the interest to the first legatee during life, or for years, and to preserve the principal for the remainderman. (Covenhoven v. Shuler, 2 Paige, 122; Williamson v. Williamson, 6 id. 298.) The executor has no right to pay the fund into the hands of the legatee for life, or for years. (Tyson v. Blake, 22 N. Y. 558, 562; Livingston v. Murray, 68 id. 485; Clark v. Clark, 8 Paige, 152.) The will cannot be construed as imposing a separate trust upon the legatee for life to take and preserve the fund for the remainderman, unless the will in explicit and express terms directs the payment of the fund into the hands of the legatee for life. (Bliven v. Seymour, 88 N. Y. 469 ; Livingston v. Murray, 68 id. 485; Spear v. Tinckham, 2 Barb. Ch. 211; Smith v. Van Ostrand, 64 N. Y. 278.) When a testator, by his will, either in express terms or by implication, has given the income of a sum of money to one for life, and then the principal to another, and has not in terms placed it in trust with any trustee other than the executor, it is the province and duty of the executor as such to hold and invest the fund in some secure and productive stock, or at interest on good security, and to pay over the income, from time to time, within reasonable times to the legatee for life, and, at the decease of the legatee for life, to pay out the principal to the person then by the will entitled to it. (Clark v. Terry, 34 Conn. 176; Eichelburger v. Barnitz, 17 Serg. & R. [Penn.] 293; Kinnard v. Kinnard, 5 Watts [Penn.], 108 ; Chrisholm v. Lee, 53 Ga. 611; Howard v. Howard, 16 N. J. Eq. 486.) A general legacy is one which does not necessitate delivering any particular thing, or paying money out of any particular portion of the estate; a specific legacy is the converse of this. (Getman v. McMahon, 30 Hun, 531; Schouler’s Exrs. and Admrs. 461.) An- executor cannot divest himself of his trust without an order of the court, or the consent of the cestui que trust. (Thatcher v. Candee, 4 Abb. Ct. App. Dec. 378; Shepherd v. McEvers, 4 Johns. Ch. 135; Hinckley v. Harriman, 45 Mich. 343.)</p> <p>A testator may make his pri■mary legatee a trustee for the benefit of the remainderman, and may rely upon that trustee to carry out the trust, independent of the executor. (1 Jarm. on Wills [5th ed.], 399; Sword’s Hawkins on Wills, 159 ; Smith v. Van Nostrand, 64 N. Y. 278; Schlafer v. Corson, 52 Barb. 510, 533.) The creator of a trust may either designate or waive any security to be given by the trustee. (Denike v. Harris, 85 N. Y. 89.) It is a sufficient compliance with the provisions of the Revised Statutes relating to trusts, if a purpose within the statute is clearly embraced within the language used, for the execution of which the trustee may be clothed with the legal title. (Potter’s Willard’s Eq. 490 ; Donovan v. Vandemark, 78 N. Y. 244; Heermans v. Birt, id. 259 ; 9 Paige, 107.) A prior gift is not to" be disturbed any further than is absolutely necessary to give effect to a posterior qualifying disposition. (Bunneer v. Stower, 1 Sandf. Ch. 357; Man v. Man, 14 Johns. 1.) Mrs. Mead was entitled to have this legacy paid- to her, and she is to be considered the trustee of the portion of her son’s benefit when the trust attached. (Bradstreet v. Clark, 13 Wend. 662; Jackson v. Coleman, 2 Johns. 392; Jackson v. Robins, 16 id. 584; 3 R. S. [Banks’ 7th ed.] 2301, § 45.) It was the intention of the testator, and he so virtually directed, that the whole legacy should be paid to Mrs. Mead. She became in law • the trustee of the $8,000, to pay Theodore the principal sum at majority. (Smith v. Van Nostrand, 64 N. Y. 278.) The language used by the testator was sufficient to create a trust, and all the requisite elements of a valid trust existed. (Hawk, on Wills [Am. ed.], 159.)</p>

The nature of the action and the material facts are stated in the opinion. The defendant was bound under the contract to have the foundations ready at the time of requiring the plaintiff’s firm to commence the work under the notice, so that said firm could proceed with the work without any substantial delay, hindrance or damage. (Peck v. Collins, 70 N. Y. 382; Booth v. Cleveland Mill. Co., 74 id. 21; Jones v. Kent, 80 id. 558 ; Allamon v. Mayor, etc., 43 Barb. 33 ; N. Eng.

This action was brought to recover damages for injuries alleged to have been-caused by defendant’s,negligence in failing to remove an accumulation of ice and snow from a sidewalk of one of its streets. Plaintiff in passing over the. walk fell and broke her arm. The further facts material to the question discussed are stated in the opinion.

This action was brought to recover damages for injuries alleged to have been caused by defendant’s negligence. ■ The material facts are stated in the opinion.

This action was upon an undertaking given on appeal to the General Term. The material facts are stated in the opinion. Where an appeal is taken from a judgment for the recovery of a chattel it does not stay the execution of the judgment, until the appellant gives a written undertaking in a sum fixed by the court below, or a judge thereof, to the effect that the appellant will obey the' direction of the appellate court upon the appeal.

This action was brought to foreclose a mechanics’ Hen for work and materials furnished by plaintiff in building a house on defendant’s premises. The facts sufficiently appear in the opinion. Although the new contract is not at issue in the pleadings it and all the attending circumstances having been proved on the trial, without objection, and being one of the main issues tried before the court, it is too late to raise that objection on appeal.

Judgment of conviction was rendered against defendant in that court, May 18, 1885, for a rape upon one Maggie Morris, April 26, 1885. The defendant w;as sentenced to be imprisoned in the State prison at hard labor for the term of seventeen years and six months. The facts are fully stated in the report of the case at General Term (ante, p. 26)

(Reported below, 38 Hun, 490.) The material facts are stated in the opinion. The court should have excluded White from the jury as prejudiced against the defense of insanity. (Code of Crim.

A Melvin Osborne, presiding, and sentenced to death The defendant was. indicted at the Ulster county Oyer and. Terminer, in February, 1884, for the murder of Edwin ,Kelland, committed on the night of the preceding January 8th, and was brought to trial at the Oyer and Terminer of said county in ¡November, 1884, and convicted by the jury of the crime of murder in the first degree, and on December 9, 1884, was sentenced to death.

(Reported below, 18 J. & S. 357.) The complaint in this action alleged a limited partnership between the plaintiffs, formed under the laws of Virginia, under the name of the plaintiff Rosenberg, who was the general, and plaintiff Bottigheimer, the special partner; that said firm delivered to defendants’ firm certain goods, to be sold by them as agents for plaintiff, and proceeds remitted, that defendants' sold the goods, but did not remit proceeds, etc. The answer alleged,…

<p>A policy of fire insurance issued by defendant for a premium in gross insured the plaintiffs for the sum of $800 on their dwelling-house and $700 on their household furniture and other personal property therein. By the terms of the policy it was vitiated by any false, statement in the application for insurance. The application stated that the insured were the owners of the real estate. This was in fact untrue. In an action upon the policy, held, that the contract was severable; that while the misrepresentation rendered the policy void as to the insurance on the dwelling, and if made with full knowledge of its falsity, might affect the whole insurance, yet if made in good faith and under a misconception as to the fact, it did not affect the insurance upon the personalty, and there being evidence tending to show good faith, this was a question of fact for the jury.</p> <p>The policy contained a condition rendering it void in case of any misrepresentation or false swearing in any statement or affidavit in reference to a loss. In the proofs of loss it was stated that plaintiffs were owners of the real estate. Held, that if this was done honestly and under a mistake as to the ownership, it did not vitiate the insurance on the personal property, and the question was properly submitted to the jury.</p>

This action was brought by plaintiff, a married woman, to recover the surrender value of a policy of insurance issued by the defendant company to plaintiff on the life of her husband in 1869, or for a judgment requiring the company to issue a paid-up policy.

(Reported below, 18 J. & S. 241.) This action was brought to recover damages for injuries received by plaintiff in attempting to get upon a train on defendant’s road. The facts so far as material are stated in the opinion. Taking the plaintiff’s account of what took place between her and the station agent to be true there was no assurance, no contract that the train would be delayed to receive her. (Solomon, Admix, v. Man.

This action was brought to vacate and set aside a judgment rendered in favor of defendant Greenfield as supervisor of the town of Southfield against plaintiff and the sureties on his bond as tax collector, and to recover back moneys paid by plaintiff in satisfaction of said judgment. The alleged ground for the relief asked was fraud on the part of Greenfield. The material facts are stated in the opinion.

The nature of the action and the material facts are stated in the opinion. Section 3015 of the Code makes it the imperative duty of the justice to render a judgment and enter the same in his docket within four days after the submission of the case. His failure tó do so without a legal excuse is negligence, for the consequences of which he would be liable. (Keating v. Sewall, 5 Daly, 280 ; Bissell v. Bissell, 11 Barb. 96; Ready Roofing Co. v. Chamberlain, 1 Abb.

This was an action for partition, the judgment directed the sale of the real estate by the appellant as a referee, and a distribution by him of the proceeds as prescribed by the judgment.

, One Hundred and Tenth street in that city. The facts are sufficiently stated in the opinion. The assessment should not be vacated entirely, but should be reduced to the extent that the petitioner has been shown to be injured by the illegality.

The material facts are stated in the opinion. A proceeding to replevy a chattel, or to reclaim a chattel replevied, must be invoked and perfected, if at all, before judgment. (Code of Civ. Pro., §§ 1694, 1703, 1704, 1717.) The right of the defendant to the delivery of the property to him was dependent on the justification (of his sureties) upon notice. (Grant v. Booth, 21 How.

This action was brought to recover damages alleged to have been sustained by plaintiffs by the unlawful erection of an embankment in a street in the city of Buffalo. The defendant, the said city, demurred to the complaint, that as to it, the complaint did not state facts sufficient to constitute a cause of action. The plaintiffs’ cause of action is given by the principles of the common law, and was perfect and complete when the injury to their property was done.

order overruling a demurrer to the complaint herein. This action ’ was commenced by certain individuals and moneyed corporations, citizens and tax payers of the city of New York, and holders of bonds and stocks issued by it.

The complaint in this action alleged in substance that defendants were copartners doing business under the firm name of H. 0. Bernard & Co.; that said firm executed and delivered to plaintiff a check for $5,000, which was dishonored on presentation to the bank upon which it was drawn.

(Reported below, 32 Hun, 270.) The nature of the action and the material facts are stated in the opinion.

The nature of the action and the material facts are stated in the opinion. Plaintiff being the holder of the paper, regular on its face as partnership paper, with no notice of any defect, was a holder in good faith.

(Reported below, 37 Hun, 442.) The court erred in holding that it was empowered on the return day of the petition and before appointing the commissioners to take evidence and try the question whether the railroad’s consent could or could not be obtained. (In re Gilbert El. Ry.

(Reported below, sub nomine Van Aernam v. McGune, 32 Hun, 316.) This was an action for libel brought against the defendant as president of the “ Courier Company,” which company, the complaint alleged, “ was and now is a joint-stock company or association duly formed and organized under and by virtue of the laws of the State of New York,” and engaged in the publication of a newspaper in which the alleged libelous articles were published.

The nature of the action and the material facts are stated in the opinion. The court erred in charging : “ It is for you to say from the evidence whether the team, at the time of the accident, was using more of the sidewalk than it was entitled to use under the ordinance, and whether under the ordinance there was sufficient space left for the passage of pedestrians. Their negligence depends upon that.” (Knupfle v. Knick.

This action was brought to recover damages for an alleged breach on the part of defendants of a contract of purchase and sale of a .quantity of pig iron. The substance of the contract, and the material facts are stated in the opinion. The seller of goods, to arrive by sea, must deliver the identical goods described in the contract, and cannot substitute other goods although of the same kind and value.

(Reported below, 30 Hun, 237.) The nature of the action and the material facts are stated in the opinion. The case is reported on a former appeal in 83 N. Y. 253. There must be some fraud or falsity in statements to constitute duress per minas. (Farmer v. Walter, 2 Edw. Ch. 601; Smith v. Rowley, 66 Barb. 502; Vosburg v. Brewster, 5 Alb. L. J. 198; L. M. Ins.

<p>In an action of ejeetment'plaintiff moved for the appointment of a receiver of the rents and profits of the land in question. Defendant thereupon consented that an order “ be entered requiring him to file security for the payment of rent of the premises, as the court may direct by order in the action.” In the order as entered and in the condition of the undertaking given in pursuance thereof, the word “ plaintiff ” was used by mistake instead of “defendant-.” The condition reading “that plaintiff will account for and pay over the rent,” etc. Held, that an action was maintainable to reform the bond and to enforce it as corrected.</p> <p>On the trial of the ejectment suit defendant succeeded; the judgment, however, was reversed and plaintiff finally had judgment in his favor for the possession of the premises and for a sum stated as the rental value thereof. Held, that the undertaking was not merged in or superseded by the first judgment, but that upon the rendition of the final judgment it by its terms became operative, as. the j udgment was a direction and order within the meaning of the undertaking.</p> <p>The order was also amended on motion without notice to the sureties. Held, that this was immaterial as it was not necessary to amend the order in order to maintain the action for the reformation o£ the undertaking.</p> <p>Also held, it was immaterial that the amended order required the defendant in the ej ectment suit to file a new undertaking, that no new undertaking having been filed the one given was not superseded.</p>

<p>Appeal from order of the General Term of the Supreme Court in the third judicial department, made November 28, 1884, which reversed a judgment of the County Court of Albany county and granted a new trial.</p> <p>The nature of the action and the material facts are stated in the opinion.</p> <p>The General Term of the Supreme Court has no power to review a question as to excessive damages on an appeal from a County Court. (Thurber v. Townsend, 22 N. Y. 517, 519; Ex parte Bassett, 2 Cow. 458; Bowen v. Widmer, 12 Week. Dig. 525; Wavel v. Wiles, 24 N. Y. 635; Meyers v. Riley, 21 Week. Dig. 280; Smith v. Platt, 96 N. Y. 636; Stebbins v. Cowles, 30 Hun, 523; Lawrence v. Ely, 38 N. Y. 42, 44; Selden v. D. & H. R. R. Co., 29 id. 634; Young v. Davis, 30 id. 134; Sherman v. Felt, 2 Comst. 186; Vandewater v. Kelsey, 1 id. 533; Marvin v. Seymour, id. 535; Fort v. Bard, id. 43; Rice v. Floyd, 4 How. Pr. 27; Dunham v. Watkins, 2 Kern. 556, 560.) The Supreme Court, having no power to reverse the judgment of the County Court for a supposed error of the jury, it is the duty of this court to reverse the judgment of the Supreme Court. (Baker v. Remington, 45 N. Y. 323.) An appeal cannot be taken till after the entry of the order or judgment appealed from. (1 Bliss’ Code, 990, note 6; In re N. Y. C. R. R. Co., 60 N. Y. 112; Bradley v. Yan Zandt, 3 Code Rep. 217.)</p> <p>The appeal from the County Court order, refusing a new trial on the ground of excessive damages, was properly reviewable by the General Term, as the court of last resort. (Code of Civ. Pro., § 1342; In re Duff, 10 Abb. Pr. [N. S.] 421, 424; People v. N. Y. C. R. R. Co., 29 N. Y. 421, 423; Suydam v. G. S. & P. R. R. Co., 17 Abb. Pr. 304.) It is a matter for the discretion of the General Term whether or not to set aside a verdict as excessive. The exercise of this discretion is not-reviewable here. . (Peck v. N. Y. C. & H. R. R. R. Co., 10 N. Y. 587 ; Campbell v. Page, 50 id. 658; Hayes v. Ball, 72 id. 419,424; Gale v. N. Y. C. & H. R. R. R. Co., 76 id. 591; Oldfield v. N. Y. C. & H. R. R. R. Co., 14 id. 310; Wrigkt v. Hunter, 49 id. 409-10; Sands v. Crook, id. 564; Dickson v. B. & Seventh Ave. R. Co., 47 id. 507; Downing v. Kelly, 48 id. 433 ; Harris v. Burdett, 73 id. 136 ; Bronk v. N. Y. & N. H. R. R. Co., 95 id. 656 ; Whitson v. David, 81 id. 645 ; Snebley v. Connor, 78 id. 218; Cushman v. Brundrett, 50 id. 296 ; Vermilyea v. Palmer, 52 id. 471; Macy v. Wheeler, 30 id. 231.) The verdict was excessive upon the clear weight of evidence, and the General Term were justified in granting a now trial upon this ground. (Hamilton v. Third Ave. R. R. Co., 48 How. Pr. 50; 53 N. Y. 25 ; Clapp v. H. R. R. Co., 19 Barb. 461; Hibbard v. N. Y. & E. R. R. Co., 15 N. Y. 457; Townsend v. N. Y. C. & H. R. R. R. Co., 56 id. 295 ; Hasbrouck v.. D. & H. C. Co., 32 Hun, 642: Tarbell v. R. R. Co., 34 Cal. 617.)</p>

- The nature of the action and the material facts are stated in the opinion. Plaintiff having tried his case as “ an equity cause,” and nothing else, is estopped from claiming that it was any thing else.

(Reported below, 12 Daly, 263.) This was an action of ejectment to recover an undivided half of certain premises to which plaintiff claimed title under a deed from defendant Callan. The plaintiff is an attorney at law, and the deed was delivered to him in pursuance of a contract, the substance of which is stated in the opinion. The law as to champerty and maintenance is not now in force in this State.

(Reported below, 19 J. & S. 71.) The nature of the action and the material facts are stated in the opinion. The defendant, having been in this State when the cause of action accrued, and having remained therein uninterruptedly until the commencement of this action, a period of ten years, the statute of limitations has run against this claim. (Code of Civ.

<p>Appeal from judgment of the General Term of the Supreme Court in the first judicial department, entered upon an order made the first Monday of November, 1884, which affirmed a judgment in favor of plaintiff entered upon a verdict, and affirmed an order denying a motion for a new trial.</p> <p>"This action was brought to recover damages for injuries to plaintiff’s canal boat, alleged to have been caused by defendant’s negligence.</p> <p>The material facts appear in the opinion.</p> <p>In order to charge a defendant with negligence in such a case it is necessary that the defect should be such that its existence would be discovered by a reasonable examination Commensurate with the use of the premises. (Leary v. Woodruff, 4 Hun, 99; Shearm. & Redf. on Neg. 658.) A mere passive acquiescence by an owner or occupier, in a certain use of his land by others, involves no liability, but if he, directly or by implication, induces persons to enter on and pass over his premises, he thereby assumes an obligation that they are in a safe condition, suitable for such use. (Sweeney v. Old Colony R. R. Co., 10 Allen, 368 ; Leary v. Woodruff, 4 Hun, 99; Smith v. Standard Oil Co., 13 Week. Dig. 377; Shearm. & Redf. on Neg. 498.)</p> <p>The owner of a wharf making use of it for gain, in the course of his business, is liable for the damages caused by the inequalities in the bottom alongside of the wharf to a vessel lawfully using the berth in course of business and exercising due care. (Lawyer v. Oakman, 7 Blatchf. 290 ; 3 Wall. Jr. 375 ; 7 Ben. 39 ; 13 Week. Dig. 377; 15 Wall. 649; 1 Thomp. on Neg. 316, 581, 582; 1 Brown’s Adm. 360 ; 59 N. Y. 28 ; 23 How. [U. S.] 209 ; 99 Mass. 116; 1 Low. 134.) This liability attaches even if the defendant had no title to the dock, if it occupied it and the adjoining wharf. (Leary v. Woodruff, 4 Hun, 99; affirmed, 76 N. Y, 617; Canavan v. Conklin, 1 Daly, 509.) When a danger can be seen and is not discovered it is negligence not to know of its, existence. (97 N. Y. 494, 501.) The appellant was bound by law to have its dock in a fit condition to receive respondent’s vessel without damaging her. (Shearm. & Redf. on Neg., § 498; Thomp. on Neg., §10, p. 316; Sawyer v. Oakman, 1 Low. 136.)</p>

This action was brought by plaintiff, as a preferred stockholder of defendant, the railroad corporation, to restrain the company from making certain payments to the sinking fund created by a first mortgage upon its property. The material facts are stated in the opinion.

This action was brought to compel defendant to transfer and assign to plaintiff one-half the interests held by the former in certain letters-patent and for an accounting, etc. The complaint alleged and the court found in substance that in February, 1876, the parties were copartners, engaged in the business of brewing lager beer; that at that time one Mixer was engaged in perfecting an invention connected with that business, and proposed to defendant that if he would furnish…

Pleas in and for the city and county of New York, made January 21, 1884, which reversed a judgment in favor of defendant, entered upon a decision of the court on trial at Special Term, and which granted a new trial.

(Reported below, 40 Hun, 360.) The material facts are stated in the opinion. The only term of office fixed by law in the counties where a surrogate is a separate officer is six years. (Const. of 1846, art. 6; People, ex rel. Rosenkranz, v. Carr, 86 N. Y. 512, 515.) The language of •the constitutional or statutory provision is to prevail, except in cases where the clear and obvious intention is to the contrary.

(Reported below, 84 Hun, 121.) This action was brought to restrain defendants from operating a railroad in Garden street, in the city of Auburn. A railroad track was originally laid iri said street by the East Genesee Street and Seward Avenue Railway Company, which was incorporated by chapter 527, Laws of 1871, and was authorized by the common council of said city to lay said track. The use of this portion of its road it however subsequently abandoned.

<p>Appeal from judgment of the General Term of the Supreme Court, in the second judicial department, entered upon an order made December 9,1886, which affirmed a judgment in favor of plaintiff entered upon a verdict and affirmed an order denying a motion for a new trial.</p> <p>This action was brought by plaintiff, as receiver of the Southern Hempstead Branch Bailroad Company, to recover the value of the use by defendant of certain property of said railroad corporation.</p> <p>The complaint alleged plaintiff’s appointment as general receiver in sequestration proceedings by petition and motion under the Revised Statutes, also his appointment as receiver in an action for foreclosure of a mortgage executed by said company. Plaintiff proved the use, prior to his appointment by defendant, with the consent of said company, of certain passenger cars belonging to it. The defense claimed plaintiff’s appointment in the sequestration proceedings to be. invalid, as such an appointment could only be made in and by action under the Code of Civil Procedure, and that plaintiff as receiver appointed in the foreclosure suit had no title to the cause. of action and no right to bring the action. It appeared upon the trial that plaintiff also brought another action in the Supreme Court against defendant for trespasses alleged to have been committed by it upon the property of the insolvent corporation prior to either of his appointments. The complaint in that action set forth said appointments precisely as in the complaint in this action. These averments were put in issue by the answer, and the court found that plaintiff “ was duly appointed general receiver,” and also duly appointed receiver in the foreclosure suit, and that as receiver he was entitled to recover. The amount of the recovery was $188.30. That judgment, was on appeal affirmed by the General Term.</p> <p>Further facts appear in the opinion.</p> <p>The plaintiff cannot recover as receiver in foreclosure, except for the period subsequent to his appointment. (Dean v. Biggs, 25 Hun, 122 ; affirmed, 93 N. Y. 622.) The objection to the validity of the order of sequestration could not have been raised by pleading. (Zabriskie v. Smith, 13 N. Y. 322; Straus v. Tradesmen's Bank, 36 Hun, 453.) The defendant is not estopped from disputing the validity of the order in sequestration by the prior judgment. (Zoeller v. Riley, 100 N. Y. 102, Remington Paper Co. v. O'Dougherty, 81 id. 474; Woodgate v. Fleet, 44 id. 11; People v. Johnson, 38 id. 63 ; Campbell v. Consalus, 25 id. 613 ; Sweet v. Tuttle, 14 id. 465; Palmer v. Hussey, 87 id. 303; Manning v. Monaghan, 23 id. 539 ; Van Pelt v. McGraw, 4 id. 110; In re Flushing Avenue, 98 id. 445.) The order appointing plaintiff receiver in sequestration was void. (Code of Civ. Pro., §§ 1784, 1810; Clinch v. S. S. R. R. Co., 1 Hun, 636; McKinney v. Collins, 88 N. Y. 216; McCulloch v. Norwood, 58 id. 562.) The order of sequestration being void, is subject to collateral attack. (Chemung v. Judson, 8 N. Y. 254; Risley v. Phœnix Bk., 83 id. 318; Wright v. Nostrand, 94 id. 31.)</p> <p>Defendant is estopped in this action from, questioning the legality of plaintiff’s appointment as general receiver; the whole subject is res adjudicata between these parties by reason of the judgment in action number 2. (Clemens v. Clemens, 37 N. Y. 74; 85 id. 436; 79 id. 634; 58 id. 76; 60 id. 276; 3 Comst. 522; Sheldon v. Edwards, 55 N. Y. 237; 51 How. 241; 22 Wall. 46 ; 3 Denio, 244; 91 U. S. 533 ; Pray v. Hegaman, 98 N. Y. 351; 46 id. 496 ; 9 Wend. 287; 77 N. Y. 76.) As general receiver under the sequestration order plaintiff can recover, because the Hemp-stead Branch road has never appealed from it, but has acquiesced In it, and its regularity cannot be attacked collaterally, the order having been granted by a court of competent jurisdiction. (Bangs v. Duckenfield, 18 N. Y. 592; 74 id. 46; 48 id. 41; Potter v. Merch. Bk. of Albany, 28 id. 641; 1 Hill, 154; 17 Wend. 483.) The stipulation that defendant and its receiver Used the property of the Southern Hempstead Branch railroad by and with the consent and agreement of that company, establishes the relation of landlord and tenant between them, and creates an implied contract or agreement on the part of defendant to pay a reasonable sum for such use and occupation. (59 N. Y. 647; 69 id. 118; Rider v. Union Rub. Co., 28 id. 379; Turner v. Jones, 1 Lans. 147 ; Hill, on Torts, 44; Gilchrist v. Comfort, 26 How. 394.) The court was right in allowing plaintiff to recover in this action the value of the use and occupation of the cars up to the time he demanded their possession. (Johnson v. Meeks, 96 N. Y 93.)</p>

(Reported below, 12 Daly, 482.) The nature of the action and the material facts are stated in the opinion. When, from the circumstances shown, inferences are to he drawn which are not certain and incontrovertible, and may be differently made by different minds, it is for the jury to make them. In such case it is error to withdraw the case from the jury.

The Supreme Court had power summarily to restore to the Pacific Bank what had been taken from it under that court’s erroneous judgment and execution. (Clark v. Pinny, 6 Cow. 297; Safford v. Stevens, 2 Wend. 158, 164; Bank of U. S. v. Bank, 6 Pet. 17; Code, §§ 1323, 1292.) Application for restitution Was properly made in the first instance to the General Term.

486, Laws of 1885). (Reported below, 37 Hun, 511.) Defendant refused to make the deduction without the consent of the member. In construing a statute insisted to be doubtful the first duty is to find whether the words themselves do not appear, upon attentive examination, to be plain in themselves.

(Reported below, 39 Hun, 396.) The act of 1868 (Chap. 855) is valid as to the subject expressed in the title, although other sections may be void because not so expressed. (Patten v. N. Y. E. R. R. Co., 3 Abb.

<p>Appeal from order of the General Term oi the Supreme Court, in the second judicial department, made December 15, 1885, which reversed an order of Special Term denying an application for a peremptory writ of mandamus, and which directed the issuing of such a writ as prayed for by the relator commanding defendant, as treasurer of the county of Westchester, to pay to the relator the sum of $521.50, the amount of certain coupons for interest upon bonds issued by said county. (Reported below, 38 Hun, 384.)</p> <p>The material facts are stated in the opinion.</p> <p>As the application was for a peremptory mandamus, the facts, so far as they are disputed, must be taken as disclosed by the affidavits on the part of the defendant. (People v. Richards, 21 Week. Dig. 365, 368 ; 73 N. Y. 173 ; 64 id. 600 ; 91 id. 385 ; 98 id. 620.) Unless defendant’s affidavits are treated as the facts, the court could only have issued an alternative writ. (Code, § 2070.) The legal effect of the acceptance of the draft was to accept Masterton & Co. as the debtor and release the defendant. (People v. Merch. Bk., 78 N. Y. 269.) The General Term had no power to grant or issue the mandamus. Such a writ can only be granted at Special Term. (Code, §§ 2068, 2069.)</p> <p>Coupons like these payable to bearer at a certain time and place are like promissory notes payable at a certain time and place. (Evertson v. Nat. Bk. of Newport, 66 N. Y. 14, 18 ; Butler v. Duprat, 51 N. Y. Sup. 86.) Neither presentation or demand for payment at the time and place specified, nor protest or notice of non-payment are necessary to bind the obligor upon the coupons. (Indig v. Nat. Bk., 80 N. Y. 107; Butler v. Duprat, 51 N. Y. Sup. 86; Daniel on Neg. Instr. [3d ed.] 517, § 1507; Burr, on Pub. Securities, 579, 580; 22 Alb. L. J. 478.) It is perfectly immaterial whether relator’s cashier took the check without any discussion between himself and Mr. Bissell, the cashier of Masterton & Co., as to whether the money or a check should be given, or whether Mr. Marshall suggested taking the check, and even asked for a check, and stated that he preferred it to money. (Syracuse R. R. Co. v. Collins, 1 Abb. N. C. 47, 49 ; S. C., 57 N. Y. 641; Bradford v. Fox, 38 id. 290.) A debtor’s own check, or note or bill, given to his creditor in payment of his debt, will not in this State of itself operate as payment unless it be paid; and if upon due presentation it be not paid, the debtor remains liable upon the original debt or obligation, and the creditor may maintain an action against the debtor thereon even if lie gave a receipt in full on receiving the check, note or bill. (Syracuse R. R. Co. v. Collins, 1 Abb. N. C. 47, 49, 50 ; 57 N. Y. 641; Feldman v. Beier, 78 id. 298 ; Hill v. Beebe, 13 id. 562; Bradford v. Fox, 38 id. 289, 291; Thomson v. Bk. of B. N. A., 82 id. 5, 8; Scott v. Meeker, 20 Hun, 164, 165 ; Sweet v. Titus, 4 id. 639.) The taking by a creditor from his debtor or the debtor’s agent of an obligation, i. e., note, check or bill of a third party, for the antecedent debt, does not, in the absence of an express agreement to take the same as payment, constitute payment of the debt; and if the third person’s obligation be dishonored, the creditor may hold his debtor liable upon the original debt, unless such obligation of the third person would have been honored had the creditor used due diligence to enforce it. (Turner v. Bk. of Fox Lake, 3 Keyes, 425; S. C., 4 Abb. Ct. App. Dec. 434; Burkhalter v. Second Nat. Bk., 42 N. Y. 538, 541, 542 ; Smith v. Miller, 43 id. 173; Indig v. Nat. City Bk., 80 id. 100, 107; Bd. of Education v. Fonda, 77 id. 351, 362; Noel v. Murray, 13 id. 167, 169, 170; Claflin v. Ostrom, 54 id. 582, 585; McQuade v. Irwin, 39 N. Y. Sup. 398, 399; Whitaker v. Whitaleer, 4 Hun, 810; Kelly v. Bk., 52 Barb. 535 ; Johnson v. Bk., 5 Rob. 589, 594; Roberts v. Fisher, 43 N. Y. 159.) Where the creditor takes his debtor’s paper, even an express agreement to take it in satisfaction of the debt will not extinguish the original debt. (Syracuse R. R. Co. v. Collins, 1 Abb. N. C. 49; Hill v. Beebe, 13 N. Y. 562.) Where the obligation of a third person is taken by the creditor, if it be so taken upon an express agreement as payment, it will be held to be payment unless in fact it were worthless when taken. (Noel v. Murray, 13 N. Y. 169, 172; Turner v. Bk. of Fox Lake, 3 Keyes, 426; Johnson v. Bk. of N. A., 5 Rob. 590.) There being no funds in the Rational Citizens’ Bank to meet the check, and the check, therefore, being worthless, the relator was under no duty to present it at all, and it was wholly immaterial what diligence, if any, the relator used in presenting the check at said bank. (Brush v. Barnett, 82 N. Y. 403; Smith v. Miller, 43 id. 75, 176; Johnson v. Bk. of N. A., 5 Rob. 594.) Hasterton & Co. are to be regarded as agents of the county treasurer. (Indig v. Nat. City Bk., 80 N.Y. 107; Burr. on. Pub. Securities, 580; Bd. of Education v. Fonda, 77 N. Y. 351, 361, 362; Turner v. Bk. of Fox Lake, 3 Keyes, 426; Burkhalter v. Second Nat. Bk., 42 N. Y. 538, 541-2; Smith v. Miller, 43 id. 171; Indig v. Nat. City Bk., 80 id. 100, 107.) The fact that a public officer has wrongfully parted with public money is no defense to a claim by the party rightfully entitled to the money to a mandamus against him. (People, ex rel. Martin, v. Brown, 55 N. Y. 188; People, ex rel. Dannat, v. Comptroller, 77 id. 50.) Failure of the relator to surrender the check is immaterial. • If necessary it can be surrendered now. (Bradford v. Fox, 38 N. Y. 292; Nichols v. Michael, 23 id. 267; Whitaker v. Whitaker, 4 Hun, 810.) Where money has been raised by taxation to pay certain public obligations, and has been placed, in the hands of a public officer for the purpose of his paying them with it, a mandamus to such officer is the appropriate remedy to compel him to do so. (People, ex rel. Fiedler, v. Mead, 24 N. Y. 114,, 119-123 ; S. C., 36 id. 224, 223, 229; People, ex rel. Martin, v. Brown, 55 id. 180, 187; People, ex rel. N. Y. C. & H. R. R. R. Co., v. Havemeyer, 3 Hun, 97, 102; Ross v. Curtis, 31 N. Y. 609-10.) Even a right of action in the relators against the appellant for his wrongful refusal to pay the coupons, or against the county upon the coupons, will not prevent mandamus. (People, ex rel. Fiedler, v. Mead, 24 N. Y. 120 ; People, ex rel. McKown, v. Green, 50 How. Pr. 504.) The General Term properly granted the motion for a mandamus, and after reversing the order of Special Term was not obliged to remit the motion to the Special Term to be granted there. (People v. N. Y. C. & H. R. R. R. Co., 28 Hun, 543, 560 ; Code of Civ. Pro., § 1317 ; Bennett v. Lake, 74 N. Y. 93; Howard v. Freeman, 7 Rob. 25; 3 Abb. [N. S.] 292, 309; Price v. Price, 33 Hun, 432, 435, 476, 481; Knaner v. Globe Mut. L. Ins. Co., 46 N. Y. Sup. 371, 373; 4 Wait’s Pr. 336, § 2; Griffin v. Hembold, 72 N. Y. 437, 441; Shaffer v. Hahn, 28 Hun, 264, 263; People, ex rel. McKenzie, v. Supervisors, 30 id. 148,150; People, ex rel. Humphrey, v. Supervisors, 30 id. 146,148; Code of Civ. Pro., § 208.)</p>

• (Reported below, 33 Hun, 441.) The nature of the afetion and the material facts are stated in the opinion. The death of the assured being proved on the trial, the burden was on the defendant to show that the policy was void and that no loss had accrued. (Van Valkenburgh v. Am. Popular Life Ins. Co., 16 Hun, 583; 1 Greenl. Ev., § 74 ; Piedmont and A. Life Ins. Co. v. Ewing, 2 Otto, 377; 2 Greenl.

(Reported below, 31 Hun, 129.) The nature of the action and the material facts are stated in the opinion. As while the assessment was in force no action could have been brought to recover back the money paid on it, and plaintiffs only remedy was to bring an action in equity to first set aside the assessment, this action is within section-888 of the Code, which gives such action a limitation of ten years.

<p>Appeal from certain portions of a judgment of the General Term of the Supreme Court, in the third judicial department, entered upon an order made May 31,1881, which, among other things, affirmed, so far as appealed from by defendant, the city of Binghamton, a judgment entered upon a decision of the court at Special Term. (Reported below, 32 Hun, 602.)</p> <p>This action was brought to restrain the construction of the Carroll street sewer, so called, in the city of Binghamton. By the plan of sewerage adopted by the proper municipal authorities, this was to be a main sewer, sewers from other streets emptying therein. -By the judgment the construction of the Carroll street sewer for the use of the residents along that street was permitted, but the use thereof in carrying off the sewage from other streets was restrained and prohibited.</p> <p>The facts, so far as material, are stated in the opinion.</p> <p>The right of the plaintiff to his relief should be made so clear as to leave no reasonable doubt, and the relief should not be granted' on mere speculation or proof of a consequential injury not necessarily resulting . from the acts complained of. (High on Injunctions, § 488 ; Phœnix v. Commissioners of Emigration, 12 How. 1; Sweets. City of Troy, 62 Barb. 631, 632; Radcliff v. Mayor, etc., 41 N. Y. 245; Williams v. N. Y. C. R. R. Co., 18 Barb. 222; Wilson v. Mayor, etc., 1 Denio, 596 ; Ellis v. Duncan, 11 How. 515; People v. Toynbee, 12 id. 259; Arnold, v. Hudson R. R. R. Co., 49 Barb. 121; Kavanagh v. City of Brooklyn, 38 id. 232; Ely v. City of Rochester, 26 id. 133 ; Health Dept. of N. Y. v. Purdon, 99 N. Y. 241.) The plaintiff is not entitled to maintain this action for the reason that the nuisance, if any is created, will be a public nuisance. (High on Injunctions, § 522; Lansing v. Smith, 8 Cow. 156; Spader v. N. Y. El. R. R. Co., 3 Abb. N. C. 475 ; Fort Plain Bridge Co. v. Smith, 30 N. Y. 62; Groat v. Moak, 26 Hun, 381.) Vague, uncertain and apprehended danger will not justify an injunction. (City of Rochester v. Erickson, 46 Barb. 92; People v. Canal Board, 55 N. Y. 397; Williams v. N. Y. C. R. R. Co., 18 Barb. 222; Swett v. City of Troy, 12 Abb. [N. S.] 100; Bouton v. City of Brooklyn, 15 Barb. 375; Phœnix v. Commissioners of Emigration, 12 How. 1; Fisk v. Wilbur, 7 Barb. 395; Harrison v. Newton, 9 N. Y. Leg, Obs. 311; High on Injunctions, § 786.)</p> <p>A municipal corporation is not only responsible for the result of the nuisance created by it to individuals sustaining special damages, but an action will lie against it to restrain such damages by injunction. (1 High on Injunctions, §§ 810, 825; Brower v. Mayor, etc,, 3 Barb. 254; Davis v. Mayor, etc., 14 N. Y. 526; Negus v. City of Brooklyn, 90 id. 403 ; S. C., 10 Abb. N. C. 182 ; Beach v. City of Elmira, 22 Hun, 162; Myers v. Phelps, 97 N. Y. 491; Bradt v. City of Albany, 5 Hun, 593 ; Davis v. Mayor, etc., 1 Duer, 501-506.) The fact having been established and found that the sewer used for the purpose intended, and as it was about to be used, would necessarily create a nuisance that would poison the atmosphere and depreciate respondent’s property, it was just as much an invasion of plaintiff’s rights as though there was a tangible interference with his property. (Manhattan Gas-light Co. v. Barker, 36 How. 238; Campbell v. Seaman, 63 N. Y. 568; Noonan v. City of Albany, 79 id. 476.) The nature of plaintiffs damages were such as to enable him to maintain the action. (Davis v. Mayor, etc., 14 N. Y. 526 ; Milhau v. Sharp, 28 Barb. 228; Manhattan Gaslight Co. v. Barker, 36 How. 238; First Baptist Church v. Troy R. R. Co., 5 Barb. 79.) The injury from the sewer was not a speculative one, nor a remote one, nor a. contingent one. (McKeon v. Sec, 51 N. Y. 307 ; Davis v. Mayor, etc., 14 id. 526; Milhau v. Sharp, 28 Barb. 228 ; People v. Canal Board, 55 N. Y. 390, 397; City of Rochester v. Erickson, 46 Barb. 92.)</p>

This action was brought by plaintiff, a timber broker, to recover commissions for services alleged to have been rendered for the defendants in effecting the sale of about four thousand five hundred piles. The material facts are stated, m the opinion. It was not necessary for plaintiff to- ask to go to the jury. His exception to the ruling of the court was sufficient.

Appeal by defendant, Kortright Cruger, from a judgment of the General Term of the Supreme Court in the First Department, affirming a judgment of the Court of Oyer and Terminer, by which the defendant was convicted of the crime of grand larceny in the second degree, and sentenced to imprisonment for five years.

This action was brought to recover a balance alleged to be due plaintiff from defendants for brick sold and delivered. The material facts are stated in the opinion. The court erred in permitting paroi evidence of the original contract between the parties. (Cox v. Bennett, 1 Green, 167; Pallen v. Le Roy, 30 N. Y. 560; Greenl.

This action was brought to recover damages for alleged negligence on the part of defendant, causing the destruction of plaintiffs’ varnish factory by fire. The material facts are stated in the opinion. The General Term held that it was not negligence for plaintiffs to carry on a varnish factory where they did as matter of law, and that as the defendant had omitted to ask to have that question submitted to the jury, and had not excepted to the charge, it could not complain.

(Reported below, 34 Hun, 254.) This was an action brought upon what is called a certificate of membership issued by the defendants to one John Hopkinson. By it, in consideration of representations made in the application, and of $6 paid as a membership fee, and of certain sums specified to be paid by Hopkinson, he was constituted a member.

This action was brought upon a contract between plaintiff and defendant Hill, who were patentees of certain improvemehts in musical instruments, of the first part, and defendant, the Ansonia Clock Company, of the second part. The material portions of the contract and the question presented thereon are stated in the opinion.

This action was brought to recover a balance alleged to be due plaintiff for salary as a member of the police force of the city of Brooklyn. The material facts are stated in the opinion. If plaintiff is entitled to recover the amount of his salary from the date of his removal until he was reinstated, such sum should be reduced by the amount earned by him during that period. (People, ex rel.

(Reported below, 12 Daly, 509.) This action was upon a bond executed by defendants. From 1869 to 1873 and afterward, the plaintiff was a resident of Eufaula, Alabama, and was a merchant there, having, in 1873, a stock of goods worth about $10,000.

This action was brought by plaintiff, as a judgment creditor of John Carpenter, to set aside certain conveyances executed by him to the other defendant as fraudulent against creditors. The material facts are stated in the opinion.

(Reported below, 84 Hun, 50.) This action was brought to recover damages for alleged negligence on the part of defendant in the performance of a contract for transportation of live stock.

' (Reported below, 31 Hun, 241.) This action was brought to recover damages for an alleged breach of contract.

<p>Appeal from an order of the General Term of the Supreme Court affirming the proceedings of the police commissioners of blew York city in dismissing the relator from the police force, on the ground that prior to his appointment he had been convicted of the crime of public intoxication.</p> <p>The facts appear in the opinion.</p>

<p>Appeal from order of the General Term of the Supreme Court, in the first judicial department, made January 29,1886, which reversed a judgment entered upon a decision of the court on trial at Special Term.</p> <p>The nature of the proceeding and the material facts are stated in the opinion.</p> <p>Assuming that the $300 belonged to Gilbert, by depositing it in lieu of bail, he made it subject to all the contingencies which the statute provides shall attend moneys so deposited, and is chargeable with knowledge of the statute under which he made the deposit and by virtue of which alone such a deposit could be made. (Code of Crim. Pro., § 586.) The judgment imposed upon Hye was not irregular, and even if it were, the relator could not take advantage of its irregularity in this collateral proceeding. (Code of Crim. Pro., § 718.)</p> <p>The purpose and object of bail, whether it be the prisoner’s own recognizance or a bail bond executed by another, is only to insure the appearance of the prisoner at the trial; he “ shall at all times render himself amenable to the orders and process of the court; and, if convicted, shall appear for judgment and render himself .in execution thereof.” ' (Code of Crim. Pro., § 568.) Had the relator executed an undertaking of bail the same could have been forfeited and the relator held for the amount thereof, only in case the prisoner had failed to “ appear and answer the charge,” or had failed “ to render himself amenable to the orders and process of the court,” or had failed, if convicted, to “ appear for judgment ” or to “ render himself in execution thereof.” (Code of Crim. Pro., § 568.) The money deposited by relator “ as security for the prisoner’s appearance, and instead of said undertaking of bail,” would be forfeited under the same circumstances and not otherwise. (Code of Crim. Pro., § 593.) A thing within the letter of the statute is not within the statute unless it be within the intention of the makers. (People v. Utica Ins. Co., 15 Johns. 358, 381 ; People, ex rel. v. Com'rs of Taxes, 95 N. Y. 554.)</p>

The nature of the entertainments given are stated in the opinion. The musical performances in question did not constitute “ entertainments of the stage.” There is no stage, no scenery, no actors, no acting, in fact, nothing of the character of dramatic or theatrical representation. Hor can they be brought under the head of “ interludes.” (Soc. for the Reformation of Juvenile Delinquents v. Diers, 10 Abb.

<p>Appeal from, order of the General Term of the Supreme Court, in the second judicial department, made December 15, 1885, which affirmed an order of Special Term, directing the issuing of a commission to take the testimony of witnesses out of the State.</p> <p>This was a reference under the statute of a disputed claim against the estate of Jacob Cole, deceased.</p> <p>An action is an ordinary proceeding in a court of justice; every other remedy or prosecution is a special proceeding. (Code of Proc., §§ 2, 3; Code of Civ. Pro., §§ 3333, 3334.) This is not an action but a special proceeding under a special statute. Proceedings on the reference of a claim against an estate do not constitute an action. (Robert v. Ditmas, 7 Wend. 525; Linn v. Clow, 14 How. Pr. 508; Boyd v. Bigelow, id. 511; Radley v. Fisher, 24 id. 405 ; Coe v. Coe, 37 Barb. 233-235 ; Somerville v. Crook, 9 Hun, 666; Young v. Cuddy, 23 id. 250; Roe v. Boyle, 81 N. Y. 306-308; Mowry v. Peet, 88 id. 456.) This being strictly a statutory proceeding, no power is conferred and no proceeding can be • had therein except it is expressly conferred by statute. (Roe v. Boyle, 81 N. Y. , 306-308 ; Mowry v. Peet, 88 id. 453 ; Matter of Attorney, 83 id. 164.) A commission is not a common-law right. (Matter of Whitney, 4 Hill, 533 ; Brown v. Southworth, 9 Paige’s Ch. 552; McCotter v. Hooker, 8 N. Y. 504; Matter of Attorney, 83 id. 164.) Since the enactment of the Code of Civil Procedure there is no power to issue a commission in proceedings supplementary to execution, even though one of the subdivisions of section 888 would seem to imply that it should issue, and for the reason that it is not an action but a special proceeding. (Champlin v. Stodart, 64 How. Pr. 379.) A commission can issue in actions only. ( Wood v. Howard Ins. Co., 18 Wend. 646; Matter of Whitney, 4 Hill, 533 ; Graham v. Colburn, 14 How. Pr. 52; Champlin v. Stodart, 64 id. 378; McColl v. Ins. Co., 50 N. Y. 332 ; Matter of Attorney, 83 id. 164.) The provision of the statute, “ that the same proceedings shall be had in all respects; the referees shall have the same powers * * * and be subject to the same control as if the reference had been made in ah action in wliieh such court might by law direct a reference,” relates to' proceedings after the report of the referee is made. (Comstock v. Olmstead, 6 How. Pr. 79.) It gives no right to a commission. The act is in derogation of the common law and should not be enlarged by indulging in a liberal- construction. (In re Denny, 2 Hill, 220 ; Wood v. Howard Ins. Co., 18 Wend. 646.) Where claims against insolvent debtors are referred to referees, under a rule of the court, with the same powers, etc., as referees appointed- by the Supreme Court, a commission is not authorized. (In re Whitney, 4 Hill, 533 ; Wood v. Howard Ins. Co., 18 Wend. 646.) The order granting a commission with stay is appealable. (Rathburn v. Ingersoll, 34 N. Y. Supr. 211.)</p> <p>This order is not appeal-able. It does not affect a substantial right within the meaning of section 190 of the Code of Civil Procedure. It is merely an intermediate order relating to the procedure. ( Van Slyke v. Hyatt, 46 N. Y. 259, 262 ; Arthur v. Griswold, 60 id. 143 ; Whittelsey v. Poquet, 66 id. 358 ; Roe v. Boyle, 81 id. 305, 307.) This is an action within the meaning of the statute, clothing the court with authority to grant the commission. (Code, § 3333.) This, upon all the statutes in pari materia, is an action within the laws giving courts authority to grant a commission. (People, ex rel. O. & L. C. P. R. Co., v. Pond, 13 Abb. N. C. 1.)</p>

This action was brought by plaintiff, as devisee of Alexander T. Stewart, against defendant, whom plaintiff alleged was assignee of a lease made by said Stewart in his life-time, to recover rent due. The material facts are stated in the dissenting opinion. Where a lessee transfers his entire term, the transfer constitutes an assignment between the original lessor and the transferee. (Childs v. Clark, 3 Barb.

<p>An order of General Term, quashing a writ of certiorari, issued to review the proceedings of the State hoard of equalization, is in the discretion of tlie court (Code of Civ. Pro., §2127), and is not re viewable here, except in a case where the General Term refrains from exercising its discretion, and grants the order upon the ground of want of power to issue the writ.</p> <p>It seems the price paid on private sale of real estate is not competent evidence of value, and a comparison of the difference between the consideration stated in transfers of real estate and the assessed valuation of such real estate in two counties of the State is not conclusive or cogent evidence to show that the assessed valuation in the one county is nearer the real value than in the other.</p> <p>The statutory scheme of valuation for purposes of taxation stated and explained.</p> <p>The fact that the State board of equalization, after giving’ a county full opportunity to present proof, information and argument, went into secret session when deliberating upon the equalization of assessments, excluding the representatives of the county from participation therein, and declined their assistance and advice in making such equalization, does not justify a charge of misconduct against the board.</p> <p>Nor is it j ust ground for such a charge against the State assessors, that, in seeking information as to the value of real estate in the county, they did not accept offers of assistance and advice tendered by the county tax and assessment officers.</p>