Volume 103 — New York Reports

(Reported below, 31 Hun, 409.) The State having brought an action in tort for the fraud, in which the larger sum could be recovered, if a recovery could be had at all, in which a liability against the person would arise, and in which a counterclaim arising out of contract could not be interposed, it thus waived the remedy in contract.

(Eeported below, 16 J. & S. 31.) This action was brought to recover damages to plaintiff’s premises in the city of New York, alleged to have been' caused by the use on the part of defendant of an engine-house on adjoining premises, and to restrain such use. The material facts are stated in the opinion.

. Appeal from judgment of the General Term of the Supreme Court, in the fourth judicial department, entered upon an order made May 30, 1884, which affirmed a judgment in favor of plaintiff, entered upon the report of a referee. (Reported below, 33 Hun, 169.) This action was brought to recover damages for' the alleged conversion of a number of stoves.

<p>Plaintiffs’ steam ferry-boat was carried by floating ice down against defendant’s bridge and became entangled therein; in the attempt by defendant to extricate the boat, a span of the bridge was pulled down upon it, causing serious injuries thereto. In an action to recover damag-es, held, that the boat, in the position it was placed, became a nuisance, which the defendant for its own protection had a right to remove, yet in exercising that right, it was its duty to use ordinary care to do no unnecessary injury.</p> <p>The court declined to charge in express terms that the defendant was not liable unless there was gross negligence on its part. The charge, howiever, was, in substance, that in the removal of the boat, defendant was not bound to use the highest skill, or to have skilled workmen and the best appliances, but was only bound to have ordinarily careful men and such appliances as the statute creating it required, and that to render defendant liable, the jury must find that the injury was caused by such acts of carelessness and negligence as ordinarily careful, prudent men intent on doing their own work properly would not have committed. Held no error; that the charge gave a sufficient definition of the degree of negligence necessary to be shown.</p> <p>Also held, that in freeing the boat from the span of the bridge which fell upon it, plaintiffs were only required to use ordinary diligence, and that if by the use thereof they could not have done this, they could recover of the defendant the subsequently accruing damages.</p> <p>In repairing the boat some improvements were made therein. The gross amount of expenditures was shown on the trial, without separating the expenses of the repairs from those of the improvements. Held, a refusal to charge that plaintiffs could recover only nominal damages, and could recover no damages for the loss of the use of the boat while being repaired, was not error; that while the burden of proof was upon plaintiffs on the question of damages, yet as the evidence showed substantial damages caused by defendant’s negligence, the failure to distinguish as to all the items between the expenditures thereby incurred and those for which defendant was not liable, did not limit’the recovery to nominal damages.</p> <p>It seems if the request had been simply to charge that defendant was only liable for expense of repairs or loss of time, which were affirmatively shown to have been caused by defendant’s negligence, a refusal so to charge would have been error.</p>

This was an action in trespass to recover damages for the unlawful and forcible taking by the defendant from the plaintiffs’ possession and the conversion to his use, of certain horses and other personal property belonging to them.

This was an action for partition. The facts are sufficiently stated in the opinion. The second clause of the will devises the real estate — not a mere life estate— absolutely to his son Cornelius, subject to the proviso hereinafter contained. (Roseboom v. Roseboom, 15 Hun, 309.) Since the Revised Statutes this gives the fee without adding the word “ heirs.” (1 R. S. 748, § 1; Edm.

This action was brought to compel the specific performance of a contract, the substance of which and the material facts are set forth in the opinion. ' The. scheme embraced in the contract is such as is expressly authorized by the statutes which permit mortgagees of railroad property on foreclosure to become purchasers of and convey the same (Chap. 444, Laws of 1857), and the organizatian of a new company by such purchasers; their assignees and associates.

which affirmed a judgment in favor of defendants, entered upon a verdict. The nature of the action and the material facts are stated in the opinion. The undisputed facts show title in plaintiff under written contract of Williams. (Jackson v. Leann, 3 Johns. Cas. 124.) And also by adverse possession. (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 August Y, 1883, which affirmed a judgment in favor of defendants, entered upon an order dismissing the complaint on trial.</p> <p>This was an action for false imprisonment.</p> <p>Defendants were attorneys for the defendants in the action and proceedings hereinafter described, and the alleged cause of action was based upon their participation as such attorneys in said proceedings.</p> <p>Plaintiff was a member of an unincorporated association and commenced an action against the individual members of the association to dissolve it, in which motion he applied for an injunction to restrain the disposition of its funds. Upon such application he was met by the affidavits of forty-two members of the society, represented by the defendant, J. C. Julius Langbein, as attorney of record. The plaintiff, through his counsel, thereupon charged that these members who had made affidavits, being Germans and unacquainted with the English language, ■were misled in signing.and swearing to their affidavits, and it was agreed that a reference should be had, and that the truth or falsity of his charge should determine whether he should or should not pay the referee’s fees. If the forty-two members, or a majority of them, swore that they made the statement which appeared in the affidavit, the plaintiff was to pay the fees. An order of reference containing that provision in substance was thereupon entered by consent. The referee found in favor of the defendants, Due notice was given plaintiff that his report was ready for delivery. The plaintiff, however, neglected to take it up; whereupon, upon application by the defendants’ attorneys, and upon an affidavit showing these facts, an order was made requiring the plaintiff to pay to the referee his fees within three days, or show cause why he should not be committed, and the injunction vacated, and the motion for injunction and the appointment of a receiver denied, and his proceedings stayed until such fees were paid. The plaintiff, was heard upon the return of the order to show cause; the court determined that a contempt had been committed and directed that a commitment should issue, which was accordingly done. The General Term reversed the order of commitment, with this condition, “ we make it part of the terms of reversal that the plaintiff shall stipulate not to bring any action on account of his imprisonment. This stipulation must be handed up with the proposed order of reversal.” The stipulation was not given, and the court affirmed the order. • The plaintiff then appealed to the Court of Appeals,- where the order was reversed. (Fischer v. Raab, 81 ST. Y. 238.)</p> <p>The order of December 4, 1878, was void on its face because it did not adjudicate the plaintiff guilty of any act which amounted to a contempt of court. (Albany City Bk. v. Schermerhorn, 9 Paige, 372; People v. Rogers, 2 id. 103; People v. Nevins, 1 Hill, 155,163; Green v. Elgie, 5 Adol. & El. [N. S.] 99 ; S. C., 48 .E. C. L. 97; Clark v. Binninger, 75 N. Y. 35, 344, 357; Fischer v. Raab, 81 id. 135 ; 2 R. S. 534, § 20; Code, § 2281; In re Townshend, 6 Thomp. & Cook, 227; In re McFeele, 2 Redf. 541.) Such an order could not protect the parties who procured it. (Comfort v. Fidton, 13 Abb. Pr. 276; Curry v. Pringle, 11 Johns. 444; Vredenburgh v. Hendrick, 17 Barb. 179 ; Lansing v. Case, 4 N. Y. Leg. Obs. 221; Clarke v. May, 2 Gray, 410; Warner v. Perry, 14 Hun, 337; Rutherford v. Holmes, 66 N. Y. 368; Bullymore v. Cooper, 46 id. 236 ; Leehrs v. Connors, 13 Abb. 17. C. 88; People v. Bd. of Police, 6 Abb. Pr. 162; Wortman v. Wortman, 17 id. 66; Blythe v. Tompkins, 2 id. 468 ; Patrick v. Solinger, 9 Daly, 149; Savacool v. Boughton, 5 Wend. 172; Davenport v. Dondy, 3 Abb. Pr. 409 ; Vredenburgh v. Hendricks, 18 Barb. 179.) The Court of Common Pleas had not jurisdiction over the plaintiff to adjudge him guilty of contempt of court. (Bullymore v. Cooper, 46 N. Y. 236, 241.) The court being without jurisdiction, the proceedings are void, and the defendants, as the promoters of the imprisonment under the void process, are liable. (Elliott v. Pierson, 1 Pet. 340; Lessees of Hickey v. Stewart, 2 id. 750; Chemung Can. Bk. v. Judson, 8 N. Y. 254; Palmer v. Foley, 71 id. 109; Miller v. Adams, 25 id. 409; v. Bach, 87 id. 56, 60.) The commitment did not authorize the sheriff to discharge plaintiff upon production of the receipt signed by the referee. (Deyo v. Van Valkenburgh, 5 Hill, 242.) The defendants are liable for any injury caused by their negligent mistake. (MacDonnell v. Buff urn, 81 How. Pr. 154; Houghton v. Swarthout, 1 Denio, 589; Tompkins v. Sands, 8 Wend. 462.) Upon the discovery of the mistake in the com.mitment the defendants were bound to procure its correction. (Doyle v. Russell, 30 Barb. 300.)</p> <p>Furlong for respondents The order and warrant of commitment were neither irregular, nor void, but were erroneous process. (Geib v. Topping, 83 N. Y. 46, 47.) If power to determine practically a given action, controversy or question presented does not exist with reference to any particular case, its determination by the court is an absolute nullity. (1 Pomeroy on Eq. Jur. Ill, § 129; Hunt v. Hunt, 72 N. Y. 217, 228, 229, 230.) Jurisdiction may exist, although the judgment be erroneous. (Staples v. Fairchild, 3 N. Y. 41; Potter v. Purdy, 29 id. 106 ; Roderigas v. East R. S. Inst., 63 id. 460.) The distinction exists between a lack of power or want of jurisdiction in the court, a wrongful and a defective exercise of the power. In the first instance all acts of a court not having jurisdiction or power are void, in the latter only voidable. The second is wrong and must be reversed on error. The third is irregular and must be corrected on error. (Wait on Fraud. Conv. and Cred. Bills, 553, §§ 420, 421; Gray v. Bowles, 13 Rep. 179 ; Bradley v. Fisher, 13 Wall. 351, 352; Tollman v. McCarthy, 11 Wis. 406; Ex parte Watkins, 3 Peters, 202; Skinnion v. Kelly, 18 N. Y. 355 ; Miller v. Brinkerhoff, 4 Denio, 118 ; Van Alstyne v. Erwin, 1 Kern. 331; Simpson v. Hornbeck, 3 Lans. 55 ; Day v. Bach, 87 N. Y. 61.) The right to inquire into the jurisdiction of another court in a collateral action is confined to the question of authority, and it does not extend to the question whether or not the court erred in the exercise of lawful authority to act. (Cooper v. Reynolds, 10 Wall. 308 ; Bradley v. Fisher, 13 id. 351;) Error of the court in adjudging a party entitled to process does not make the party liable for acts done under the erroneous process. (Addison on Torts [4th Eng. ed., 1880], 781, 720, 757, 799, 810; Cohen v. Morgan, 6 D. & R. R. 8, 9; Carratt v. Morley, 1 Q. B. 18, 28; Cooper v. Harding, 7 id. 639 ; Blythe v. Tompkins, 2 Abb. 472; Williams v. Smith, 14 C. B. [N. S.] 596, 622; Daniels v. Fielding, 16 M. & W. 200; Smith v. Sidney, L. R., 5 Q. B. 203 ; landt v. Hilts, 19 Barb. 283, 288 ; Stanton v. Schell, 3 Sandf. 328; Simpson v. Hornbeck, 3 Lans. 53; Cory v. Long, 12 Abb. Pr. [N. S.] .432; Miller v. Adams, 52 N. Y. 412; Palmer v. Foley, 71 id. 109 ; Bay v. Bach, 87 id. 56, 62; Marks v. Townsend, 97 id. 590, 596.) The “warrant-’ of commitment was legal and regular. FTo cause of action for damages in this respect, either, was alleged, in, or made out by the complaint, or the evidence. (Costar v. Wilson, 3 M. & W. 411; Green v. Elgie, 5 Ad. & EL [N. S.] 113 ; Wait on Fraud. Con., etc., 562, § 426; Williams v. Smith, 14 C. B. [U. S.] 596 ; Prentice v. Harrison, 4 Q. B. 852; D. & Merv. 50; S. C., 4 Ad. & EL [N. S.] 852, 856; Smith v. Sidney, L. R., 5 Q. B. 203.) Before an action can be brought on the ground that the process was irregular the party must apply to the court and have it set aside. (Reynolds v. Cross, 3 Caines, 267; Griswold v. Sedgwick, 6 Cow. 462; Mackey v. Backett, 9 Paige, 437; Simpson v. Norrbeck, 3 Lans. 55; Steuben Co. Bank v. Alberger, 78 N. Y. 252; Ruppert v. Hang, 87 id. 143; Day y. Beck, id. 60; Jackson v. Smith, 16 Abb. Pr. 201; Green v. Elgie, 5 Ad. & El. [N. S.J 113 ; People v. Nevns, 1 Hill, 165.) The setting aside of process on the ground of error gives no cause of action, and, therefore, it makes no difference even if malice is shown, and so justification and mitigation, are unnecessary to be shown in defense where there is no cause of action. (Marks v. Townsend, 97 N. Y. 590.) Ho action will lie unless the complaint charges the attorney with acting maliciously, and this must be proven. (Anon., 1 Mod. 209; Davis v. Jenkins, 11 Mees. & W. 745; 1 Dow. & B. 321; 12 B. J. [N. S.] Exch. 386; Carratt v. Morley, 1 Q. B. 18, 28; Burnap v. Marsh, 13 111. 535 ; Lynch v. Commonwealth, 16 Serg. & R. 368; Cohen v. Morgan, 6 D. & R. 9; Marks v. Townsend, 97 N. Y. 590.) As the complaint does not state why it was set aside, whether for irregularity or for error, this was a fatal defect and, therefore, it stated no cause of action. ( Williams v. Smith, 14 C. B. [N. S.] 596; Prentice v. Harrison, 4 Q. B. 852 ; D. & Merv. 50; Smith v. Snyder, L. R., 5 Q. B. 203; Moore v. Guardner, 6 M. & W. 595.)</p>

a peremptory writ of mandamus. The following are the material facts alleged in the petition of the attorney-general: That the Rome, Watertown and Ogdensburg Railroad Company is a railroad corporation, organized under the.laws of this State, and was engaged in the operation of a railroad from Rome, Oneida comity, to Watertown, Jefferson county, and to points north on the St. Lawrence river, passing through the town of Sandy Creek and having a station at Washingtonville; that…

<p>1. Mandamus—Peremptory and alternative writs op.</p> <p>A peremptory writ of mandamus is only authorized when the applicants’ rights to a mandamus depends entirely upon questions of law. Where the material allegations of the application for a writ of mandamus are put in issue, or where the answering affidavits contain allegations showing that a peremptory writ ought not to he issued, the court should award an alternative mandamus in the first instance.</p> <p>2. Same—When granted, on application op attorney-general.</p> <p>The court will only grant the writ of mandamus on the attorney-general’s application when it is able to see from the undisputed facts alleged, that its issuance is necessary to protect some public right or to secure some public interest. Where private interests only are involved the interested parties should be the relators.</p> <p>3. Same—Railroads—What are matters op public interest to the</p> <p>PEOPLE OP THE STATE.</p> <p>A town was bonded for the construction of a railroad upon condition that a permanent depot should be erected and maintained at a certain point. Setd, that the contract rights and obligation are not in any proper sense a public matter in which the people of the state, in their sovereign capacity are interested. It must be enforced by some proceedings taken on behalf of the town, and cannot be enforced by a proceeding instituted by the attorney-general on behalf of the people of the state.</p> <p>4. Railroads—Foreclosure op mortgage on—Obligations op Suc-</p> <p>cessors.</p> <p>The contract obligation was not a charge or lien upon the property of the railroad, and would not pass by foreclosure sale to, or devolve upon, the railroads that were its successors.</p> <p>5. Same—When it can abandon onb op two op its parallel lines—</p> <p>Mandamus.</p> <p>When a railroad company owns by consolidation two lines of road running between the same points, and can substantially accommodate the people of the state by operating one line between those points, and can abandon the other line without any serious detriment to any considerable number of people, it should not be compelled by mandamus to operate both lines at a great sacrifice of money, notwithstanding a few individuals are discommoded by the discontinuance of one line.</p> <p>6. Same—When it can abandon the shorter op two lines.</p> <p>After consolidation the defendant railroad had two lines from P. to W., a direct line seven miles long and a circuitous line two miles longer. . It. could accommodate every passenger and all freight at said P. and W. by carrying it over the longer line. It was also more convenient for the people of the complaining town to reach the principal market towns than at any previous time. The only difference being that passengeis had to-change cars at a different station, and those going south from W. are obliged to travel two miles further. Held, that the company would not be com, elled by mandamus to operate the shorter road.</p>

(Beported below, 32 Hun, 49.) This was an action to recover damages for an alleged trespass m depositing dredging material upon plaintiffs oyster bed a quantity of earth and other material dredged from other premises, and thereby destroying the oysters planted thereon. The facts so far as material are stated in the opinion. The oysters planted by the plaintiff are his exclusive property the same as animals ferae naturae when caught and reclaimed.

<p>Appeal from judgment of the General Term of the Supreme Court, in the fifth judicial department, entered upon an order made October 31, 1884, which affirmed a judgment in favor of defendants, entered upon a decision of the court on trial at Special Term. (Reported below, 34 Hun, 47.)</p> <p>This was an equitable action, brought by the appellant for the purpose of subjecting the proceeds of certain chattels theretofore sold by the defendant Ellis as assignee, etc:, to the payment of rent due and to become due from the defendant H. F. Van Dake.</p> <p>It appeared upon the trial that in March, 1879, the plaintiff, as lessor, and H. F, Van Dake, as lessee, executed a lease by which the former let, and the latter agreed to take certain premises for a boot and shoe store for the term of five years from the 1st of April, 1879, at the rent of $2,000 for the first year, and a greater sum thereafter, payable monthly in advance, with interest after three days from maturity, and in case of default in payment, or seizure of the goods and merchandise, or other personal property in or upon the premises, by virtue of any writ, judgment, execution, assignment or otherwise, the whole amount of such rent and interest agreed to be paid should immediately become due and payable, and to that should be added any sums due for water rates or gas. Then followed this clause: “ And it is further agreed, that the lessor shall have a lien as security for all the rent, and interest, gas bills and water rates aforesaid, or for any damage to building due from lessee, upon all goods, wares, chattels, implements, fixtures, tools, and all other personal property, which are, or may be put on the demised premises, belonging to the lessee, or to any one holding or claiming the demised premises, or any part thereof under him as assignee, under-tenant or otherwise; and such lien may be enforced on the non-payment of any of said rent, interest, water rent or gas bills by the taldng of such 'property and the sale thereof in the same manner as in case of a chattel mortgage on default thereof; such sale to be made upon six days’ notice posted upon the demised premises, or served upon said lessee. Such lieu, however, shall not be enforced against any property, which, being a part of stock in trade, shall have been sold in the regular course of business.”</p> <p>It was found by the trial judge (eleventh finding), that at the time of the execution of this lease it was agreed between the parties thereto that the lessee “ should remain in possession of the said mortgaged goods in said store, and that he might sell the goods covered by said mortgage, in said store, and use the proceeds in his business, buying other goods with the money as opportunity offered, and using the proceeds of the sales to meet his liabilities, and in the prosecution of his business, and in supporting his family and paying his hired helpand also (twelfth finding), “ That at the time said chattel mortgage lease was executed, the said Henry F. Yan Dake was in possession of said store and all the goods therein, and thereafter continued in possession of said store and of the mortgaged goods, and continued to deal with the said mortgaged property, consisting chiefly of boots and shoes, in which he was a retail dealer, as he had been accustomed to do before the giving of the chattel mortgage lease, buying and selling boots and shoes as opportunity offered, and using the proceeds of his sales in the prosecution of his business, and in the support of his family, and in paying his hired help, in all resects as if no mortgage were in existence, all of which was done with the knowledge and approval of the plaintiff; and that the plaintiff never had possession of any of the goods covered by said chattel mortgage lease.”</p> <p>This condition of affairs continued until the 5th of January, 1881, when H. F. Yan Dake made general assignment to defendant DeWitt 0. Ellis, of all his property, including that upon the leased premises, for the benefit of, his creditors, among whom as a preferred creditor was the other defendant, Harriet S. Yan Dake. On the same day, and without notice, actual or constructive, of any claim on the part of the plaintiff, Ellis, as assignee, took possession of the property, and soon thereafter sold and converted it into money, realizing over and above expenses about $2,000. Afterward, but before the commencement of this action, the plaintiff demanded of the assignee, either payment of the rent accrued and due, “ or delivery of the stock of goods, fixtures and other personal property in the store, to him as such lessee; claiming a right and lien under said lease prior and superior to that of said Ellis under the assignment.”</p> <p>Mrs. Yan Dake’s debt accrued prior to the lease, and is greater than the proceeds of the assigned property. The plaintiff asked judgment that he be declared to have a prior lien upon the assigned property and its proceeds, and that he be paid therefrom $1,833.33 rent actually due, and $6,966.66 which became due by reason of default on the part of the lessee.</p> <p>The trial court, as conclusions of law, found:</p> <p>“ First. That the said plaintiff had no lien on the goods in said store at the time the said assignment was made, as against the said assignee and the creditors of the defendant Henry F. Yan Dake.</p> <p>“ Second. That the said chattel mortgage clause in said lease was absolutely void as against the assignee and creditors of the defendant Henry F. Yan Dake.</p> <p>“ Third. That said chattel mortgage clause in said lease is fraudulent in law, as against the assignee and creditors of the said Henry F. Yan Dake.</p> <p>‘■'•Fourth. That the complaint be dismissed with costs against the plaintiff.”</p> <p>The plaintiff excepted to these several conclusions of law.</p> <p>As between plaintiff and defendant, Henry F. Van Dake, the lease was a valid instrument, and all its provisions, including the lien clause in question, were in force and binding upon him as lessee before and at the time he executed his general assignment, and ever since. (McCaffrey v. Wooden, 65 N. Y. 459; Wisner v. Ocumpaugh, 71 id. 113; Hale v. Omaha Nat. Bk., 49 id. 627.) The wife of Henry F. Van Dake could not, as a general creditor, attack the lease or prevent its enforcement, either on the ground that it had not been filed in the proper clerk’s office, or on the ground that it was fraudulently executed. (Hayman v. Jones, 7 Hun, 238 ; Thompson v. Van Vechten, 27 N. Y. 568; Jones v. Graham, 77 id. 628; Niagara Co. Nat. Bk. v. Hadeliff, 17 id. 584.) Even if the lease be regarded merely as a chattel mortgage, the only ground on which it can be attacked by the only other defendant — DeWitt 0. Ellis, as assignee of Henry F. Van Dake for the benefit of his creditors — is fraud in its execution. ( Van Heusen v. Radcliff, 17 N. Y. 582, 584; Inre Collins, 12 Nat. Bk. Reg. 379 ; Slade v. Van Vechten, 11 Paige, 21; Bur-rill on Assignments [4th ed.], 589.) Such an assignee cannot defend successfully against a chattel mortgage on the ground that it has not been filed according to the statute. (Laws of 1833, chap. 279, as amended by Laws of 1879, chap. 418; Niag. Co. Nat. Bk. v. Lord, 33 Hun, 564; Van Heusen v. Hadeliff, 17 N. Y. 582, 584; Southard v, Benner, 72 id. 424; 24 Hun, 49.) The lien-clause in the lease did not constitute a chattel mortgage, so as to subject the lease, or the plaintiff’s rights' thereunder, to the provisions of the several statutes regarding either the filing of chattel mortgages (Laws of 1833, chap. 279, as amended by Laws of 1879, chap. 418), or the fraudulent conveyances or transfers of personal property. (3 R. S. [7th ed.] 2328, part 2, chap. 7, title 2, § 5; McCaffrey v. Wooden, 62 Barb. 322-23 ; Butler v. Miller, 1 N. Y. 496; Shuart v. Taylor, 7 How. Pr. 251; Porter v. Parmly, 43 id. 445 ; S. C., 34 N. Y. Supr. 398 ; Jones on Chat. Mort., §§ 8, 9, 11; Parshall v. Eggart, 52 Barb. 367; Brown v. Bement, 8 Johns. 96; Langdon v. Buell, 9 Wend. 80; Patchin v. Pierce, 12 id. 61; Sawyer v. Fisher, 32 Me. 28; Gushee v. Robinson, 40 id. 28 ; Shaw v. Wiltshire, 65 id. 485; Metcalf v. Fosdick, 23 Ohio, 114; Groton Manuf. Co. v. Gar-diner, 11 B. I. 626; Palton v. Landahn, 27 Mich. 529; Jones on Chat. Mort., § 11; Southard v. Benner, 72 N. Y. 427; City Bk. v. Westbury, 16 Hun, 458; Otis v. Hill, 8 Barb. 102.) The General Term erred in holding that the. plaintiff was not in as good condition to maintain this action as he would have been if his lease had been a chattel mortgage; and also, that no actual lien existed against the property at the time it was taken in custody by the assignee; and that the equities of the creditors are just as great as those of the plaintiff, and the court has no power to prefer one creditor over another. (1 Pomeroy’s Eq. Jur. 145-148, §§ 165, 166, 167; 2 id., § 1233 et seq., and notes; Brace v. Duchess of Marlborough, 2 P. Williams, 491; Ex parte Knott, 11 Ves. 609, 617; 3 Pomeroy’s Eq. Jur. 230, 231, § 1233 ; id. 233, § 1235 ; Holroyd v. Marshall, 10 H. of L. Cas. 191; McCaffrey v. Wooden, 65 N. Y. 465-7; Jones on Chat. Mort., §§ 170-175; Payne v. Wilson, 74 N. Y. 348; Hale v. Omaha Nat. Bk., 49 id. 626 ; Chase v. Peck, 21 id. 581; Whiting v. Eichelberger, 16 Iowa, 422 ; Lynch v. Utica Ins. Co., 18 Wend. 236; Husted v. Ingraham, 75 N. Y. 251, 257; Boorman v. Wis., etc., Co., 36 Wis. 207; Mitchell v. Winslow, 2 Story, 630; Hale v. Omaha Nat. Bk., 49 N. Y. 634.)</p> <p>If the mortgagee intended the mortgage to operate as a valid security against,the creditors of the mortgagor, he should have divested the mortgagor of the possession of the goods, or the mortgage should have'been filed as required by law. ( Yenni v. McNamee, 45 N. Y. 621 ; Thompson v. Van Vechten, 27 id. 568; Steele v. Benham, 84 id. 638 ; Topping v. Lynch, 2 Robt. 484.) The fraudulent nature of the mortgage consisted in giving the mortgagor credit by allowing him to retain possession of the mortgaged goods, and to sell them and to use the proceeds in his business and otherwise, thereby inducing parties to give him credit. (Potts v. Hart, 99 N. Y. 172; Brackett v. Harvey, 91 id. 214; Southard v. Benner, 72 id. 424; Russell v. Winne, 37 id. 591.) The assignee in this case represents the whole body of creditors, and he had a right in their behalf to impeach the validity of the mortgage and show that it was fraudulent and void. (Southard v. Benner, 72 N. Y. 427; Ball v. Slafter, 26 Hun, 354; S. C., 98 N. Y. 622; Hard v. Milligan, 8 Abb. N. C. 59 ; Southard v. Pinckney, 5 id. 184; McCaffrey v. Wooden, 65 N. Y. 465.) At common law there could be no lien upon goods without possession. (3 Pars, on Cont. 250 ; Willard’s Eq. Jur. 123 ; Black v. Bogert, 65 N. Y. 601; McFarland v. Wheeler, 26 Wend. 467; Grinnell v. Cook, 3‘ Hill, 485; Coryell v. Perrin, 6 Robt. 40 ; Walther v. Wet-more, 1 E. D. Smith, 24.)</p>

Appeal by defendant Jacobs, from a judgment of the General Term of the Supreme Court in the fifth judicial department, entered upon-an order made October 31, 1884, which affirmed a judgment in favor of plaintiff, entered upon a decision of the court on trial at Special Term. The nature of the action and the material facts are stated in .the opinion.

<p>Appeal from judgment of the General Term of the Supreme Court, in the third j udicial department, entered upon an order made December 27, 1884, which affirmed a judgment in favor of defendant, entered upon a decision of the court on trial 'at Special Term.</p> <p>This action was brought to restrain the defendant from building a dam upon Wood creek, in the village of Whitehall, and to compel the removal of its erections and for damages.</p> <p>The plaintiff claimed title to a small lot in the village of Whitehall, being the northern fifty-five feet of a parcel known as the “ Phoenix barn lot,” which parcel is described, in a deed thereof from John IT. Boyd and wife to Ami D. Gibbs, as “.bounded south by James Greenough’s lot; west "by Wood creek; north by the axe-helve shop lot; east by Williams street, being one hundred and eighty-five feet on Williams street, and about thirty feet wide from Williams street to Wood creek.” The bank of Wood creek, along this parcel, is a natural wall or ledge of stone twelve to fifteen feet high above high-water mark. The plaintiff claims under a conveyance from one Hancock, who obtained his title by purchase at a foreclosure sale, upon the foreclosure of certain mortgages. These mortgages covered twenty-five acres, known as the “ mill lot,” of which this “ barn lot ” was a part, and the lien thereof went back to 1822. It was created as follows: March 21,1822, Jonathan Steele and others gave a> mortgage of the “mill lot” to John Williams to secure purchase-money. About 1841, Williams became the owner of two , mortgages upon the same premises, given by John H. Boyd.</p> <p>He afterward commenced proceedings to foreclose these mortgages and, by authority of a decree of the Supreme Court, in 1855, Josiah Hart took title to the entire premises, as trustee for Boyd and those claiming under him, and gave a mortgage back to Williams to secure the balance then due upon the former mortgages, whereby the lien of Hart’s mortgage extended back to 1822.</p> <p>Defendant claimed under a deed given on a purchase at the same foreclosure sale of the land adjacent to and north of the barn lot, “ with all the water and lands under the water of Wood creek.” The further material facts are stated in the opinion.</p> <p>The sale of the Phoenix barn lot to James D. Hancock, with a description bounding it on the west by Wood creek, conveyed the west side of the creek, to the center thereof, notwithstanding the prior attempt of the referee to sell all the land under water, with lot A. (Hopkins v. Wooley, 81 N. Y. 77.) The referee had no power to sell contrary to the judgment, and when he did so, his acts were unauthorized and void as to any one prejudiced by such action. (De Forest v.Leete, 16 Johns. 122.) An attorney’s authority to act for his client ends with the judgment, when it is against his client. (Lusk v. Hastings, 1 Hill, 686 ; Dugan v. Rooney, 38 How. 121.) After securing a legal or equitable right for his client in the judgment, an attorney cannot give up that right without his client’s consent. (Quinn v. Lloyd, 36 How. 398; Shaw v. Kidder, 2 id. 224; Barrett v. Third Ave. R. R. Co., 45 N. Y. 665.) An easement over mortgaged premises may be cut off by making the owners parties to the foreclosure. (Parker v. Rochester de Syracuse R. R. Co., 17 N. Y. 292, 297.) So far as mere legal rights are concerned. upon a bill of foreclosure, the only proper parties to the suit are the mortgagor and the mortgagee, and those who have acquired rights under them, subsequent to the mortgage. And the mortgagee has no right to make one who claims adversely to the title of the mortgagor, and prior to the mortgage, a party defendant. (Eagle Fire Ins. Co. v. Lent, 6 Paige, 637; Corning v. Smith, 6 N Y. 84.) A person claiming under the mortgagor, prior to the mortgage, is a proper party, and the question of priority could be tried in the foreclosure suit. (Brown v. Volkening, 64 N. Y. 76.) A purchaser-on a foreclosure obtains the same title that the mortgagee would obtain had he taken possession of the property and foreclosed the equity of redemption. (2 R. S. 192, § 158.) He takes the title which the mortgagor had before he gave the mortgage. (Parker v. Rochester & Syracuse R. R. Co., 17 N. Y. 287; Smith v. Gardner, 42 Barb. 366; Butler v. Viele, 44 id. 166.) The defendant as assignee of the mortgage can only hold the title which the mortgage gave to Williams, prior to the foreclosure, and that cannot include an easement which was not in existence at the date of the mortgage. ( Watson v. Spence, 20 Wend. 206; Strong v. Dollner, 2 Sandf. 444.) The interest of the plaintiff was such as a court of equity will protect by injunction. (Angell on WaterCourses, § 449; Webb v. Portland Manufacturing Co., 3 Sumner, 189; Knapp v. Douglas Awe Co., 13 Allen, 1; Corning v. Troy Iron & Nail Factory, 39 Barb. 311; 34 id. 492; 40 N. Y. 191.)</p> <p>The decree condemned the entire property to sale. The bed of the creek and all of the water power and privileges covered by the mortgages had been in fact sold to Miss Williams, before any thing was sold to Hancock. And her purchase included the title and interests of Cozzens, as he was not in possession when lis pendens was filed and his deed was not recorded until years after the sale. (Code of Pro., § 132.) Caveat emptor applies with especial force to judicial sales. (Riggs v. Pursell, 66 N. Y. 193 ; Clute v. Emmerich, 99 id. 342; Neal v. Gillaspy, 26 Am. Rep. 38.) These sales and conveyances having been confirmed by the court, and no application made to be relieved from the purchase, the conveyance cannot be attacked in this action. (Story v. Hamilton, 86 N. Y. 428.) If the plaintiff, or his grantor, had any grounds of complaint, the remedy could only he sought in the foreclosure suit. (Jones on Mortgages, § 1668 ; Van Vleck v. Clark, 38 Barb. 316 ; McCotter v. Jay, 30 N. Y. 80; Smith v. Am. Life Ins. Co., Clarke, 307; Bennett v. Bagley, 22.Hun, 408 ; Leavitt v. Palmer, 3 N. Y. 19, 38.) The attorneys had authority to modify the order of sale. (Newberry v. Lee, 3 Hill, 523; Corning v. Southland, id. 552 ; Gorham v. Gale, 7 Cow. 739.) The true construction of the plaintiff’s deed, as matter of law, limits him to high-water mark and does not convey any portion of the bed of the stream or water power. (Higinbotham v. Stoddard, 72 N. Y. 94; Marvin v. Univ'l Life Ins. Co., 85 id. 278; Gillespie v. Torrance, 4 Bosw. 36 ; 25 N. Y. 306.) By force of the original conveyance, the grantee and his successors in interest, acquired the right to maintain the flow of water through that canal, to the extent then existing, as against the owners of the rest of the mill-lot and their privies in estate, forever, including the right, necessarily involved, of setting the water back upon the barn lot. (Huntington v. Asher, 96 N. Y. 604; Adams v. Conover, 87 id. 422; Simmons v. Cloonan, 81 id. 557; Langdon v. Mayor, etc., 93 id. 129, 148,152 ; Scriver v. Smith, 100 id. 471, 481; Lampman v. Milks, 21 id. 505 ; Townsend v. McDonald, 12 id. 381 ; 3 Wash. Real Est. 231,232; Agricultural Bk. v. Rice, 4 How. [U. S.] 225; Gatlins. Ware, 9 Mass. 218.) The factory lot and the appurtenant rights were held by paramount title, and could not be affected by the foreclosure, even if there had been any pretense of doing so. (Emigrant Ind. Savgs. Bk. v. Goodman, 75 N. Y. 127; Rathbone v. Nooney, 58 id. 463; Merchants' Bk. v. Thompson, 55 id. 7.) The plaintiff has no standing in a court of equity. He has no valuable interest to protect on any theory of the case, but is a mere trespasser. (Newton v. Russell, 87 N. Y. 527; T. & B. R. R. Co. v. Boston, etc., R. R. Co., 86 id. 107, 123; Trustees Col. Coll. v. Thacher, 87 id. 311; Crooke v. Flatbush Water Co., 27 Hun, 72; Quackenbush v. Van Ripper, 2 Green’s Ch. 350; 29 Am. Dec. 716 ; Clinton v. Myers, 46 N. Y. 511.)</p>

<p>Although by the amendment of 1879 to the charter of the city of Auburn (Chap. 53, Laws of 1879), which abolished the office of overseers of the poor, the powers and duties of that office were devolved upon the board of charities and police, yet there were thereafter in said city no overseers of the poor, within the meaning of the provision of the excise law (§ 22, chap. 628, Laws of 1857, as amended by chap. 820, Laws of 1873, and chap. 109, Laws of 1878), which provides that penalties for violation of said law may be sued for in the name of the overseers of the poor of the town or city where they are incurred, “ except in such towns or cities as have no overseers of .the poor, in which case such penalties shall be sued for and recovered by and in the name of the board of commissioners of excise of the town or city.” „</p> <p>Accordingly held, that an action to r.ecover penalties for violations of the (excise law in said city were properly brought in the name of the board of commissioners of excise of the city.</p>

This action was brought to recover penalties for alleged violations of the excise law. The material facts are stated in the opinion. The action was not brought by the proper party. It ought to have been in the name of the board of charities and police of the city of Auburn. (Laws of 1857, chap. 628, § 22; Laws of 1873, chap. 820; Laws of 1878, chap. 109 ; Laws of 1869, chap. 436; 1 Ld. Raym. 682; 2 Edm.

This action was brought by plaintiffs, as commissioners of highways of the town of Eishkill, to compel the defendant to remove so much of a fence as she had built upon a strip of land claimed by plaintiffs as part of a highway, and to restrain the further erection of such fence, The court found that about eight years prior to the trial, defendant, who is the owner of lands on the easterly side of the highway, moved her fence back about ten feet, and gave and dedicated the…

(Reported below, 34 Hun, 365.) This action was brought to foreclose a mortgage executed March 25, 1878, by Martin Shea and his wife, the defendant, Margaret Shea, upon lands of the husband. In 1880 the premises were sold under an execution issued upon a judgment recovered in 1874 against said Martin Shea, and, not having been redeemed, were conveyed by the sheriff to the purchaser.

As the proceedings in this case were commenced before the surrogate of the county of N ew York in the year 1878, this court will consider and determine upon the facts as well as the law. (Laws of 1881, chap. 681, and Laws of 1883, chap. 229, amending subd. 11 of § 3347 of tit. 2 of chap. 22 of the Code of Civ.

Beckett, deceased, and directed its admission to probate. (Reported below, 35 Hun, 447.) The, instrument presented as the will of the deceased was written by herself. It was dated on the 5th of October, 1881, subscribed by her and by two witnesses who were present at the time of its execution. It was as follows: “ Octo. t>th, ’81. “ My last will and testament.

Snyder to be in and punishing him for contempt for refusing and willfully neglecting to obey a decree of said surrogate, which directed payment by him as therein specified of a sum in his hands as executor of the estate of Jabez Olmstead, deceased. (Reported below, 34 Hun, 302.) The facts appear sufficiently in the opinion.

. The indictment was found in the General Sessions in March, 1886, and was thereafter ordered to the Oyer and Terminer for trial The defendant was arraigned March 23,1886, and pleaded-not guilty. Held: that such confessions were inadmissible. People v. Ah How, 34 Cal. 218. A confession to a magistrate before examination, on his saying “it would be better for the accused to make a full confession,” held, inadmissible. People v. Ward, 15 Wend. 231; Comm. v. Nott, 29 Alb.

Appeal by Frank Mondon, the defendant, from a judgment of. the General Term of the Supreme Court in the Third Department of November 19, .1885, affirming a judgment of the Court of Oyer and Terminer of Herkimer county of May 23, 1885, convicting defendant of murder in the first degree. The facts fully appear in the report of the case 'at General Term 4 M Y. Orim. Hep. 112, and in the following opinions.

On the 11th day of December, 1880, the defendants Swift & Van Alten entered into a contract with the counties of Kings and Queens to build a swing-bridge over Newton creek,, which separates those counties. The contract-price was $7,800, one-half of which was to be paid by each county. The turntable of the bridge was to be the Blanchard & O’Rourke patent turn-table.

These are cross-appeals from a judgment of the General Term of the Supreme Oourt, in the second judicial department, entered upon an order made the second Monday of May, 1884, which modified and affirmed as modified a judgment in favor of plaintiff, entered upon the report of a referee after an interlocutory judgment on trial at Special Term.

This was an action against directors of a manufacturing corporation to recover a debt due from the corporation, because of failure to file an annual report. The complaint was verified, an answer unverified was served, but plaintiff’s attorney served notice on defendant’s attorney that the plaintiff elected to treat it as a nullity because not verified. The defendant was entitled to serve an unverified answer. (Code of Civ. Pro., §§ 323, 837; Hughan v. Woodward, 2 How.

<p>Prior to the passage of the act of 1885 (Chap. 876, Laws of 1885), which re- ■ quires a receiver of an insolvent railroad corporation to pay the wages of its employes in preference to other debts, and conceding that said act applies to a receiver appointed in an action to foreclose a mortgage on the property of such a corporation (as to which qumre), the court had no power to authorize a receiver so appointed to pay or issue his certificates of indebtedness for the payment of labor and services in operating the road prior to his appointment, and to make certificates so issued a lien prior to the mortgage.</p> <p>Where the plaintiff in such an action has procured the appointment of the receiver with power to control and operate the mortgaged road, he may not object to the depreciation of his security by expenses incurred for that purpose, but he may properly seek to have excluded any previous ones. By an order issued in such an action the receiver was directed to pay or to issue certificates having a priority of lien over the mortgage to a sum stated for the payment of a sum stated, “ for deficiencies for supplies.” The referee, upon whose report the order was based, found that the receiver in operating the road had incurred obligations to an amount stated, which was greater than the sum so authorized to be paid. There was no statement in the findings or otherwise as to the consideration or cause of the indebtedness, or to show that the obligations were necessarily incurred. Held, that while, as the order directing the receiver to maintain and operate the road was made at plaintiffs’ request, it must abide by it, and it might be, as against it the clause providing for such indebtedness should be allowed to stand, as against another mortgagee, who was not a party to the application for a receiver, it could not be sustained.</p>

Appeal by the people of the State of New York from order of the General Term of the Supreme Court, in the second judicial department, made the second Monday of May, 1886, which affirmed an order of Special Term appointing commissioners of appraisal to condemn certain lands under water adjoining Staten Island. At the time named in the notice, which was served with the petition, no answer was served on behalf of the people, and the usual order appointing commissioners was made.

<p>These were cross-appeals from an order of the General Term of the Supreme Court, in the first judicial department, made the first Monday of March, 1886, which modified an order of Special Term vacating an assessment on petitioner’s premises in the city of Hew York for the expenses of constructing a sewer, by deducting from the assessment a proportionate amount of an itemincluded in the assessment, as follows: “ $1,206.53 awarded to Manhattan Gas-light Company.’’ The balance of the assessment was ordered to stand.</p> <p>The petitioner was the owner of property affected by the assessment, and by petition alleged “that said assessment is irregular and void, for the following reasons :</p> <p>“ I. Because there is included in said assessment, and assessed upon his lots, the cost of work for which no contract was made, in conformity with the provisions of section 91 of the charter of 1873, nor any bids made for doing said work, or any part thereof, or any competition therefor.</p> <p>“ II. That the work, for the expense of which said assessment is imposed, was done without any authority of law, and there are included therein expenses not authorized by law.” Upon the trial it appeared that the whole assessment was $255,251.17; it included surveyors’ fees, $22,870, and $1,206.53, awarded to Manhattan Gas-light Company; it also appeared “ that it was before the commissioners appointed under chapter ’580 of the Laws of 1872, and was by them certified as free from fraud.” The contract contained fixed prices for rock excavation, but none was required or done.</p> <p>The allegations in the petition are sufficient to reduce the assessment .on the grounds stated. (In re Lilienthal, 28 Hun, 641.) The certificate of the commissioners under the act of 1872, chapter 580, did not validate the assessment, so that a valid assessment could be laid and imposed when a substantial error existed in the assessment. (In re Burmeister, 76 N. Y. 174; In re Marsh, 83 id. 433; 21 Hun, 582.) The award to the Manhattan Gas Company is an improper charge. (In re Deering, 93 N. Y. 361.) Only such matters as are in the certificate of the commissioners of public works to the board of assessors can be assessed. (Laws of 1882, chap. 410, § 868, Cons. Act1; Laws of 1871, chap. 574, § 5 ; In re Cameron, 50 N. Y. 52.) The maxim “ de minimis non our at lex,” cannot apply in a case where an authorized item is included in an assessment, however small. (In re Deering, 93 N. Y. 361.)</p> <p>This being a case neither of fraud nor repavement, the alleged irregularity in the letting of the contract is of no importance in view of the certificate of the commissioners under chapter 580 of the Laws of 1872. (In re Burmeister, 76 N. Y. 174; In re Peugnet, 5 Hun, 434; 67 N. Y. 443; In re Marsh, 83 id. 431; In re Kendall, 85 id. 302.) The contract, even if made in disregard of legislative limitations, has been ratified by subsequent legislation. (Laws of 1880, chap.556; Brown v. Mayor, etc., 63 N. Y. 239, 244.) There is no allegation in the petition, under which evidence as to the items of “surveyors fees,” “award to Manhattan Gas Company,” could be offered. (In re Eager, 46 N. Y. 109; In re Roberts, 81 id. 69; Rich's Case, 12 Abb. Pr. 118; Horn's Case, id. 124; Miller's Case, id. 121.) The items included for “ surveyors’ fees” and “award to Manhattan Gas Company” are proper charges. (Laws of 1865, §§ 9, 10, 11, amended by Laws of 1866, § 1; In re Merriam, 84 N. Y. 607; In re Pelton, 85 id. 657; In re Lowden, 89 id. 548'; In re Roberts, 95 id. 674; Rev. Ord., 1880, §§ 168, 171, pp. 105, 106; Rev. Ord., 1886, pp. 243, 244.) All the presumptions are, in these eases, in favor of the city. (In re Hebrew Ben. Orph. Asyl., 70 N. Y. 476 ; In re Bassford, 50 id. 512 ; In re Williamson, 3 Hun, 65-68 ; Bigelow v. Boston, 120 Mass. 326.) This is a case for the application of the maxim “ De minimis non curat lex. ” (In re St. Joseph’s Asylum, 69 N. Y. 353 ; Coleman v. Shattuck, 62 id. 363; In re Lewis, 35 How. Pr. 168.)</p>

The nature of the action and the material facts are stated in the opinion. The expression in the contract “said bark” (from Brantingham lots) “to be used there in carrying said tannery on,” is a limitation and not a condition ; the executors could not make'a condition under the power, as owners might.

The nature of the action and the material facts are stated in the opinion. The judgment in the action against defendant and Scheffer could only be enforced against the joint property of both defendants and the separate property of the defendant served. (Code of Civ. Pro., §§ 1932-1941.) This action prevents the statute of limitations running in favor of the defendant, not served during the pendency of the original suit.

Ensign, deceased, and ratifying and confirming the decree admitting the will to probate. It appeared that the deceased and the petitioner were married in 1867, and lived together as man and wife until 1875; that a child was born of said marriage in 1869, which died soon after; that in December, 1875, a decree of divorce was granted, in an action brought by her against her husband, because of' adultery, on his part, and in 1877 she married again.

This action was brought to recover damages for alleged negligence causing the death of Joseph Olive, plaintiff’s intestate. The material facts are stated in the opinion. The court erred in holding that defendant owed no duty to plaintiff’s intestate and that the boilers were not in charge of the defendant at the time of the accident. (Farwell v. Boston & Worcester R. R. Co., 4 Metc. 49, 55, 56 ; approved, Coon v. Syracuse R. R. Co., 5 N. Y. 495, 1 Bl.

(Reported below, 33 Hun, 57.) The complaint in this action shows the following facts: In 1873, George Herdtfelder, for the purpose of securing the payment of $4,000, with interest, executed and delivered to the plaintiff his bond, and, as collateral thereto, a mortgage upon real estate executed by himself, and the defendant Elizabeth, his wife.

This action was brought to recover back the amount of a reduction made by the court in an assessment upon certain lots in the city of New York. - The material facts are stated in the opinion. The fact that the purchase-price of this property was paid by James Brown, while the legal title was conveyed to his two sons, does not constitute him the equitable owner of the property.

(Reported below, 34 Hun, 153.) This action was brought to recover damages for injuries-alleged to have been caused by plaintiff’s negligence. The material facts are stated in the opinion. A master is under no obligation under all circumstances to make use of the safest known appliances and instruments, -nor is he responsible for a failure-to discard one which is not such and to supply its place with, something safer.

<p>An executor is not exonerated from the duty of vigilance in protecting funds belonging to the estate simply by the fact that they were paid to or came into the hands of a co-executor in due course of -administratian.</p> <p>While, if he is merely passive, and does not obstruct the collection or receipt of assets by his associate, he is not liable for the latter’s waste; where he knows and assents to a mis-application, or negligently suffers his co-executor to receive and waste the estate, when he has the means of preventing it, he becomes liable for a resulting loss.</p> <p>The will of W. created certain trusts; among others, one for the benefit of plaintiff. The portion of the trust fund, held for plaintiff’s benefit, was directed to be separately invested, and the net income applied to her use during life. At the time of his death, W. was a member of the firm of W. & M. The surviving members of the firm, one of whom was the defendant G., an executor and trustee under the will, continued the business. He retained in his possession the books of account, papers and securities belonging to the estate. Moneys realized from the estate in the course of administration were, under the authority of G., paid to the ¡new firm, and were, with the knowledge of defendant McK., a co-executor and trustee, used in its business, the firm paying interest, which was credited in the account-books of the estate. No portion of the estate was set apart as plaintiff's share. The firm failed, and the funds of the estate in its hands were lost. In an action to charge said trustees with the loss, held, that McK. was liable for allowing the fund to accumulate in the hands of the firm without requiring the same to be invested as directed by the will; also, that if he had not actual knowledge of the . fact that the firm was using the funds, as he could have ascertained the fact by making inquiries as to what use was being made thereof, he was chargeable with "negligence in failing so to do; that he should at least have sought to have them properly invested.</p> <p>G., without the knowledge of McK., hypothecated securities belonging to the estate to secure loans for his own benefit or for that of the firm. Held, that McK. was not liable for the loss; that the failure to make a separation of the securities, as contemplated by the will, did not render him liable, as this did not induce or cause the spoliation, nor would such a separation have prevented it.</p> <p>McK. was charged with interest on the losses, computed with annual rests. Meld, that, as there was no wrongful intent on his part, this was error; and that simple interest, at five per cent, was a proper charge.</p>

<p>Where, by the terms of a policy of life insurance, the assured warrants the truth of his answers to questions in his application, compliance with the warranty is a condition of the validity of the contract, and any substantial deviation from the truth in an answer, it is to be assumed, is material to the risk and forfeits the policy.</p> <p>Where, by plain and unambiguous language in such a policy, the observance of an apparently immaterial requirement is made the condition of a valid contract, neither courts nor juries have the right to disregard it.</p> <p>When the construction of a contract depends upon the language of the instrument itself, it is a question 'of law for the court, and a submission thereof to the jury is error.</p> <p>In considering the language of an insurance contract, the words of a promise are to be regarded as those of the promisor, while those of a representation upon which the promise is founded are the words of the promisee, and, in either case, are to be taken most strongly against the party using them.</p> <p>It seems that no questions concerning the interpretation of contracts can properly be submitted to a jury, except those arising upon conflicting evidence as to the terms of the contract, or when extrinsic evidence raises some doubt as to the identity of the subject-matter or the claimants thereunder.</p> <p>The rules relating to the construction of contracts stated.</p> <p>In an application for a policy of life insurance, after general questions as to the business of the applicant then and for the previous ten years, which were required to be “ carefully specified," was contained this question: “ Is he now, or has he been engaged in or connected with the manufacture or sale of any beer, wine or other intoxicating liquors f ” To this question the applicant answered “ No ! ” By the policy issued upon the application the answers were made warranties. In an action upon the policy, it appeared that the insured had, for about three years and up to about a year and a half prior to the application, been engaged in the business of keeping a hotel; that, while he had no bar and did not sell to outsiders, he kept a wine and liquor room and regularly and systematically sold wines and liquors in bottles to guests in the house. In answers to similar questions in applications to other companies, made within three weeks prior to the one in question, the insured stated that he had kept a hotel for three years in which liquor, was sold in packages. SsMjthatthe statement was false and so was a breach of warranty and forfeited the policy; also, that it conclusively appeared the insured' did not misconceive the meaning and intent of the question.</p> <p>Moulor v. Am. Life Ins. Co. (Ill IT. S. 335), distinguished.</p> <p>In answer to the question as to his business, the insured answered “Real estate and grain dealer.” There was no evidence that he had been engaged in either kind of business specified, and the answer was negatived by repeated sworn statements to the contrary, made by the insured a short time before the application, and by proof of circumstances of the most convincing character showing his constant employment in other occupations. Held, that while it was true the onus of showing the falsity of the statement rested affirmatively upon defendant, the case presented a question of law, and a submission thereof to the jury was error; that while it may be the sworn declarations of the insured did not constitute an estoppel, they constituted evidence of the facts stated and, in the absence of countervailing evidence, became conclusive as to them upon his representatives.</p> <p>If the proof of a fact is so preponderating that a verdict against it would be set aside by the court as contrary to the evidence, it is the duty of the court to direct a verdict. It is not sufficient to authorize a submission of the fact to the jury that there is a “ scintilla of evidence,” a mere surmise to the contrary.</p>

Appeal by defendant, Oscar F. Beckwith, from a judgment of the General Term of the Supreme Court in the Third Department, of 22d May, 1886, affirming a -judgment of the Court of Oyer and Terminer of Columbia County convicting defendant of murder in the first degree. The facts which are important for an understanding of the case are given in the opinion of the General Term. See 4 H. Y. Crim. Rep. 335 et seq.

which affirmed an order of Special Term which is set forth in the opinion, wherein also the material facts are stated. The order appealed from is a final order iu a special proceeding, and affects a substantial right and is reviewable in this court. (Code of Civ. Pro., § 190, subd. 3, § 1337; People, ex rel. Vanderbilt, v. Stilwell, 19 N. Y. 531; People, ex rel. Allen, v. Knowles, 47 id. 415-420; People, ex rel. Davis, v. Hill, 53 id. 547, 549; People, ex rel.

The facts, so far as material to the questions presented, are stated in the opinion. The admission of Hart’s testimony as to personal transactions and communications with testator was erroneous and the objections and. exceptions to it are well taken.

<p>These were motions to dismiss appeals from judgments of the G-eneral Term of the City Court of New York, on the ground, among others, that the provision of the act (Chap. 418, Laws of 1886) declaring that the .City Court of New York shall be deemed a superior city court, and thereby authorizing an appeal direct from its judgment to the Court of Appeals, is unconstitutional.</p> <p>The Court of Appeals may lawfully take the jurisdiction the act (Laws of 1886, chap. 418) confers. (Const., art. 6, § 6; Butterfield v. Raddle, 58 N. Y. 490; People v. Gardner, 45 id. 812; Same v. Norton, 59 Barb. 169; De Hart v. Hatch, 3 Hun, 375; People v. Mayor, etc., 79 N. Y. 589, 590.) The act in question, so far as this case is concerned, takes nothing from the Common Pleas which it had in January, 1870, when the Constitution went into effect. (McAdams’ Marine Court Prac. [2d ed.] 4; Cooley on Const. Lim. [3d ed.] 177, 178.) The State legislature had power to pass this act. (People v. Draper, 15 N. Y. 543; Thorpe v. Rutland & B. R. R. Co., 27 Vt. 142; 1 Abb. N. Dig. 118.) The right of appeal is a mere remedial power subject to change at the 'will of the legislature. (Const., art. 6, § 6 ; Potter’s Dwarris on Stat. 471, 472.) The act . is constitutional in all its parts, an appeal is not a vested right, but a mere legislative privilege subject to change by it at will. (Grover v. Cook, 1 N. Y. 536; In re Palmer, 40 id. 561; 64 id. 58; 67 id. 447; People v. Fowler, 55 id. 675 ; Neuzler v. People, 58 id. 516.)</p> <p>It is only in cases where the meaning of statutes is doubtful that the courts are authorized to indulge in conjectures as to the intention of the legislature, or to look to consequences, in the construction of the law; when the meaning is plain and unambiguous, the act must be carried into effect according to the language, otherwise the courts would be assuming legislative authority. (Woodruff v. Mech. Bk., 25 Wend. 673; Bowen v. Newell, 8 N. Y. 190; Higgins v. Moore, 34 id. 417; Easton v. Piekersgill, 55 id. 310; Fellows v. Mayor, etc., 17 Hun, 249 ; Scott v. Reid, 10 Pet. 524; Dwarris on Stats., note 3, ed. 1875; People, ex rel. Hall, v. Supervisors of Greene, 13 Abb. N. C. 421; McCluskey v. Cromwell, 11 N. Y. 593; Purdy v. People, 4 Hill, 397,403; Waller v. Harris, 20 Wend. 561,562; Dwarris on Stats. [Potter’s ed.J 193.) Where the language of a statute is definite and has a precise meaning, it must be presumed to declare the intent of the legislature, and it is not allowable to go elsewhere in search of conjecture to restrict or extend its meaning. (Johnson v. Hudson R. R. R. Co., 49 N. Y. 455; Benton v. Wickwire, 54 id. 226; Hudson Iron Co. v. Alger, id. 173-175.) In the construction of a statute grammatical rules do not prevail over the manifest sense of.the language. (People v. Gates, 56 N. Y. 387.)</p> <p>The law enacted by the legislature, as set forth in chapter 418, Laws of 1886, which provides that the City Court of New York shall be deemed a superior city court, and thereby giving this court the exclusive right to review judgments from its General Term, is unconstitutional and void. (Canst., art. 6, § 12; Alexander v. Bennett, 60 N. Y. 206.) The legislature could no more interfere with the privilege vouchsafed to every suitor of having his appeal to the Court of Common Pleas than they could with the. right of a suitor who had selected his tribunal to have the cause held in the tribunal of his selection. (Alexander v. Bennett, 60 N. Y. 206.)</p>

Appeal by defendant, Lippman Arensberg, from a judgment of the General Term of the Supreme Court in the Second Department, affirming a judgment of the Court of Sessions of Kings county, affirming a conviction of defendant of selling oleomargarine in imitation of butter. The facts sufficiently appear in the opinion.

<p>The power of the court to make an allowance to the wife for counsel fees and expenses, in an action for divorce, is limited to such sums as may be necessary to enable her to carry on or defend the action. If, where she is defendant, she has succeeded in making her defense from her own resources, or upon her own credit, she may not, before judgment and while the action is pending, have an order compelling her husband to pay such expenses.</p> <p>Where, therefore, at the time of a motion for judgment in such an action, on the report of a referee in favor of the husband, the wife, who had been allowed a sum for counsel fees and other expenses, moved for a further allowance for such expenses theretofore incurred, without showing, in her moving papers, that it was needed further to defend the action, held, that the allowance was unauthorized.</p> <p>It seems an allowance for some past expense may be made where it is shown that its payment is necessary to enable her to further carry on or defend the action.</p>

(Reported below, 30 Hun, 366.) This action was brought against defendant as the drawer of a bill of exchange, the substance of which and the material facts are stated in the opinion. A holder of commercial paper has a right to make proof upon it against the maker or acceptor in bankruptcy, and, after receiving dividends, to collect the unpaid balance from drawer or indorser.

This was an action against defendants, as executors of the will of Nelson J. Beach, deceased, for the specific performance of a contract for the sale of land.

Also, appeal from order of said General Term made May 26, 1885, reviving and continuing this action in the name of the present plaintiff as administrator of the estate of Samuel Bonnell, Jr., the original plaintiff.

This action was brought by plaintiff as a creditor of the Iron Mountains Company of Lake Champlain, a corporation organized under the General Manufacturing Act, against defendants as trustees of said corporation, to recover the amount of plaintiff’s claim, because of an alleged false statement in an annual report signed by defendants as such trustees, they knowing the same to be false. Defendant Griswold appeared and answered.

order made May 14, 1885, which affirmed a judgment in favor of defendant, entered upon an order nonsuiting plaintiff on trial. This action was brought to recover damages for alleged negligence causing the death of Joseph Solomon, plaintiff’s intestate. The material facts are stated in the opinion. The court erred in dismissing the complaint on the ground of the negligence of plaintiff’s intestate.

Gerry, as sole trustee of certain trusts created by the will of Peter P. Goelet, deceased. The material facts are stated in the opinion. Dividends, whether ordinary or extraordinary, belong to the life-tenant; though if shares be given they are capital, and belong to the remaindermen. (Clarkson v. Clarkson, 18 Barb. 646 ; Simpson v. Moore, 30 id. 537; Estate of Woodruff, 1 Tucker, 58; Riggs v. Cragg, 26 Hun, 89-103; Earp’s Appeal, 28 Penn.

(Reported below, 38 Hun, 523, sub nomine Byrnes v. Lábagh.) This was an action for the partition of certain lands in the city of New York. The material facts are stated in the opinion. Where an estate is given in one part of a will in clear and decisive terms such estate cannot be taken away or cut down by any subsequent words that are not as clear and decisive as the words of the clause giving the estate.

(Eeported helow, 34 Hun, 514.) This action was brought for the construction of the will of Eichard Delafield, deceased. The will was dated January 17, 1873, and the testator died on the 5th day of November following, leaving a widow then aged sixty-two years and six children — five daughters and one son — all unmarried adults and members of his family.

The facts, so far as material to the questions discussed, appear in the opinion. The General Term had no jurisdiction, no exception having been taken by the appellants to any of the rulings made, or to the findings, either of facts and law, nor any exception to the refusal of the surrogate to find the facts as requested. (Code of Civ.

This action was brought to recover the amount of a deposit made by plaintiff’s testator with defendant. The material facts are stated in the opinion. The power of attorney was a complete protection to the defendant in paying the money to Crowell, and his receipt was a good acquittance and discharge therefor, whether he was authorized to deposit the money in his own name or not. (Pollock’s Prin. of Con. 50-1; Holmes’ Com.

Defendant issued to the claimant a policy of insurance upon the life of her husband which contained a clause providing for its surrender and the issuing of a new policy. The claim was upon a new policy issued in pursuance of this clause.

Appeal by defendant, Charles A. Buddensieck, from a judgment of the General Term of the Supreme Court in the First Department, June, 1886, affirming a judgment of the Court of General Sessions of New York, convicting defendant of manslaughter in the second degree. The indictment is given together with the points of counsel, and the facts in the report of the case at General Term in 4 N. Y. Grim., 230.

Pleas in and for the city and county of New York, dated Hay 24,1884, which affirmed a judgment of the General Term of said City Court, which affirmed a judgment of said court at trial term, entered upon an order dismissing the complaint herein. This action was originally brought against William C. Conner, the present defendant’s testator, as sheriff of the county of New York, for failure to return an execution within sixty days after its delivery to him.

Appeal by defendant Charles G. Sherman, from a judgment of the General Term of the Supreme Court in the Third Department of 2 December, 1885, affirming a judgment of the Court of Sessions of Rensselaer County of 21 June, 1885, convicting the defendant of criminal libel. The facts appear in the opinion.

These were cross-appeals from judgment of the General Term of the Supreme Court, in the first judicial department, entered upon an order made January 20, 1886, which modified and affirmed as modified a judgment in favor of defendant, entered upon a decision of the court on trial without a jury. This action was brought by plaintiff to recover a balance of salary alleged to be due and unpaid to him as a police justice of the city of New York.

Appeal by defendants Reeves and Kloppenburgh from judgment of the General Term of the Supreme Court, in the first judicial department, in favor of plaintiffs, entered upon an order made March 27, 1885, which affirmed a judgment in favor of plaintiffs, entered upon a verdict directed by the court. (Reported below, 35 Hun, 507.) This action was upon a bond of indemnity, the substance of which and the material facts are set forth in the opinion.

Gardner, as administrator of the estate of Allen B. Gardner, for leave to sell real estate for payment of the debts of his intestate. The material facts are stated in the opinion. The payments made by the intestate were acknowledgments of the indebtedness and sufficient to take the whole claim out of the statute of limitations.

This action was brought to recover back the amount of an alleged illegal assessment which plaintiff’s testator had been wrongfully compelled to pay. The substance of the averments in the complaint is set forth in the opinion. An action of this nature can be maintained.

Lawrence county, commanding it to convene and audit and allow a claim presented to it for audit by the relator. The facts, so far as material, are stated in the opinion. The board has no power to audit the claim, and cannot be compelled to do what it had no right to do. (Excelsior Co. v. Lacey, 63 N. Y. 422, 426; People, ex rel. v. Brooklyn, 69 id. 605 ; Heckman v. Pinckney, 81 id. 211; Laws of 1832, chap. 26; Laws of 1882, chap. 28.) The act of 1882 is unconstitutional.

claimant nothing thereon. 'ihe nature of the claim and the facts material to the questions discussed are stated in the opinion. The contracts were not abrogated by either chapter 323 of the Laws of 1874, or chapter 264 of the Laws of 1875; nor was the passage of either of those laws a breach of the contracts on the part of the State. (People v. Zoll, 97 N. Y. 203 ; In re Folsom, 56 id. 60; Roper v. Johnson, 4 Moak’s Eng.

This action was brought to foreclose a mortgage. The defense was payment. The mortgage bore date MarchlO, 1865, and was executed by Calvin Dodge to Philip Ver Planck, as trustee for two infants. On the 2d day of August, 1869, Ver Planck, as late trustee, assigned the mortgage to James W. Taylor, as present trustee for the infants.

This action was brought to compel the specific performance of a contract for the purchase by defendant of certain lots in the city of New York. The material facts are stated in the opinion. Defendant is entitled to a marketable title, but the objection thereto must be substantial, not fanciful.

(Reported below, 38 Hun, 270.) The facts sufficiently appear in the opinion. The burden of proof was upon the proponent as objector to show all the facts which subjected the proposed testimony to the claim of privilege. (Earl v. Grant, 46 Vt. 113; Edington v. Ætna L. Ins. Co., 77 N. Y. 571; Daniel v. Daniel, 39 Penn.

This was an action to recover damages for alleged negligence, causing the death of Perry Abel, plaintiff’s testator The facts, so far as material, are stated in the opinion. ■ The evidence created questions of fact for the jury. (Heidenger v. Heine, 18 N. Y. Week. Dig. 404 ; 31 Hun, 316; Weber v. N. Y. Cent.

Appeal by defendant, Helen M. McCallam, from a judgment of the general term of the superior court in the fourth department of 29th January, 1885, affirming a conviction of the defendant in the court of sessions of Jefferson county, of grand larceny in the second degree. The facts appear very fully in the report of the case at general term. See 3 H. Y. Grim. Rep., 189, 191, et seq.

This action was upon a promissory note executed by Abby G. Barker, defendant’s testator, payable to the trustees of the First Baptist Church of Tarrytown, or order, for the sum of $2,500, which note was assigned and transferred by said trustees to the plaintiff. The material facts are stated in the opinion. There was no consideration for the promise of defendant’s testatrix and it cannot be enforced. (Merrill v. Green, 55 N. Y. 273 ; Allen v. Perine, 12 id. 25 ; Am.

The nature of the action and the material facts are stated in the opinion. Defendant had the affirmative of the issue, and the denial of his right to open and close the case was error. (Elwell v. Chamberlain, 31 N. Y. 611; Miller v. Thorn, 56 id. 402; Linsey v. European Pet. Co., 3 Lans. 176; Murray v. N. Y. L. 1.

(Mem. of decision-below, 39 Hun, 487.) The nature of the petition and the material facts are stated in the opinion. The residuary clause of the will carries with it Only the estate that remains after payment of the debts and the legacies directed by the will. (King v. Strong, 9 Paige, 94; Banks v. Phelan, 4 Barb. 80; Pirnie v. Purdy, 19 id. 60.) The same diligence is required of the executors that a man of ordinary prudence would exercise.

(Reported below, 39 Hun, 308.) This action was brought to recover damages for alleged negligence causing the death of David Cranston, plaintiff’s intestate, who was killed while crossing defendant’s road, the wagon in which he was riding having been struck by an engine attached to a train passing on said road. The facts, so far as material to the question discussed, are stated in the opinion.

(Reported below, 38 Hun, 360.) The nature of the action and the material facts are stated in the opinion. The policy in suit is under the statute and protected by it. (Eadie v. Slimmon, 26 N. Y. 9, 16; Perry v. Eq. L. Ass.

<p>The will of J. authorized his executors to continue his business for such time after his death as they should think advantageous to the estate, and directed as to the distribution of the profits. His residuary estate he gave to his executors in trust to collect rents and interest, and after paying therefrom necessary expenses and charges, to pay the “.residue and net proceeds ” to certain eestuis que trust, during thfeir lives. Upon settlement of the accounts of the executors, held, that losses by bad debts, and the cost of personal property purchased to replace similar articles worn out or used up in conducting the business by the executors; also expenditures for ordinary repairs on the real estate used therefor, were properly charged against and deducted from the income payable to the life-tenants ; that the language of the will authorized the deduction of all losses and' expenses necessarily incurred in managing the estate and conducting the business, including ordinary expenses for repairs or improvements, and it was not necessary that the specific items so to be deducted should be stated in the will.</p> <p>It seems the same rule might not apply where a large and unusual expenditure has been incurred ; as in the erection of additional buildings.</p>

The court erred in admitting evidence of what Quigley said after the accident, describing' how the accident happened. (Waldele v. N. Y. C. & H. R. R. R. Co., 95 N. Y. 274; People v. Murphy, 101 id. 126 ; 1 Whart. on Ev., § 1174; Bigley v. Williams, 80 Penn.

Haddock, the appellant, for an order requiring the receiver appointed herein to pay out of the funds in his hands to said Haddock the sum of $395. (Reported below, 21 J. & S. 237.) This action was brought to foreclose a mortgage upon premises known as No. 367 West Twenty-third street, in the city of New York, of which defendant Scofield was the owner. Daniel J. Noyes was appointed receiver of the rents and profits accruing therefrom during the pendency of this action.