Volume 104 — New York Reports

The report of the commissioners was in favor of the petitioner. The refusal to confirm their report was upon the ground that the petitioner had no legal right to construct or operate a railway. The facts, so far as material, are stated in the opinion. The decision is this case having been put solely on legal grounds is appealable to this court.

Appeal by defendants from judgment of the General Term of the Supreme Court in the second judicial department, entered upon an order made February 9,1885, which affirmed a judgment in favor of plaintiff entered upon a verdict directed by the court; also appeal by plaintiff from so much of said order as reversed an order of Special Term permitting an amendment of the summons and complaint.

A mmidamus will not lie to compel the performance by a corporation of any specific act, where its performance is vested in the discretion of the directors of the corporation. (Catterham R. v. London, etc. Co., 1 C. B., N. S., 87 E. C. L. R 410, 417; So.

<p>1. RAILROADS — OBLIGATION TO PROVIDE STATION ACCOMMODATION S — At COMMON LAW.</p> <p>At common law the defendant, as á carrier, is under no obligation to provide warehouses for freight offered it, or depots for passengers waiting transportation.</p> <p>2. Same — Railroad commissioners — Their powers and duties — Laws-1882, chapter 353.</p> <p>Chapter 353, Laws of 18S2, which creates the board of railroad commissioners, gives the commissioners no power to compel any addition to or change of the stations or station houses of the various railroads, which they may deem proper to promote the security, convenience or accommodation of the public. The power of a company to provide such buildings is, under the statutes, a permissive one only. If the corporation choose to exercise it, it may. »</p> <p>S. Maotamus — The pebfobmance op what duties can be compelled BY.</p> <p>If the duty sought to be imposed upon the defendant is not a specific duty prescribed by statute, either in terms or by reasonable construction, the court cannot, no matter how apparent the necessity, enforce its performance by mandamus.</p>

(Reported below, 29 Hun, 446.) The substance of the complaint and of the opening stated in the opinion. Plaintiff is entitled, upon the facts set forth, to have the damages recoverable under the act of 1872 (Chap. 729) ascertained by the court without the aid of the board of assessors.

Morgan, executrix, etc. The material facts are stated in the opinion. The effect of the provision in Mr. Morgan’s will, that his property he “ given, devised and bequeathed as provided by the laws of the State of New York in cases of intestacy,” was to incorporate into the will the statute of distribution.

This action was originally brought by William Donahue, the testator of the present plaintiffs, to recover the value of the steamboat “ Charlotte Vanderbilt,” from William Belden, the respondent, owner of the steam yacht “ Yosemite,” for the running down of the “ Vanderbilt” by the “Yosemite,” near Esopus Meadow light-house, on the Hudson river, at between nine and ten o’clock in the evening of July 14,1882.

<p>Appeal from order of the General Term of the Supreme Court, in the second judicial department, made May 10,1886, which reversed an order of Special Term refusing a peremptory writ of mandamus, and which directed the issuing of said writ, requiring the State comptroller to refund to the petitioner the purchase-money paid on an invalid sale of land for taxes. (Reported below, 40 Hun, 386).</p> <p>It appeared, that, at the State tax sale in 1859, a number of parcels of land in Erie county were struck off to one ifenderson, who assigned his bids to Maurice E. Yiele, to whom the State comptroller executed conveyances of the lands. Prior to 1877, the comptroller refunded to Yiele the purchase-money of twelve of the lots, and in that year, upon an affidavit of Yiele that he had sold and conveyed to John M. Peck “ all the right, title and interest acquired by him from the tax sale, * * * so far as his title had not been destroyed by redemption or cancellation; ” and upon other evidence the comptroller refunded to Peck the purchase-price of the other lots. In September, 1863, Yiele conveyed all of his interest in the lots so purchased by him (except a few that had been redeemed) to Ogden H. Osborn, which conveyance was recorded in Erie county, in July, 1864. Ogden died intestate and his heirs-at-law and next of kin joined in a conveyance to the petitioner of all their right, title and interest in said lands.</p> <p>Further facts appear in the opinion.</p> <p>Yiele’s deed to Osborn was not such an assignment as carried with it the title to the purchase-money paid by Henderson. (King v. Trustees of St. Pat'ks Cath., 4 East 721; Laws of 1855, chap. 427, § 85; 1 R. S. 39, § 143; Grerard’s Tit. to Real Es. 525; Veila v. Rodriguez, 12 Wall. 323 ; U. S. v. Slinly, 21 Fed. Rep. 894; May v. Leldaire, 11 Wall. 232.) The deed from Yiele to Osborn did not operate as an equitable assignment of the purchase-money paid by Henderson. (1 R. S. 738, § 140; Adams v. Conover, 87 N. Y. 422.) If the deeds to Osborn and the relator operated as an assignment, then the comptroller was protected by payment to Yiele and Peck. (1 R. S. 756; Heermams v. Fellows, 64 N. Y. 169.) Proof of payment by the State to the purchaser, or his immediate assignees of the certificate, was sufficient. The relator must show actual notice to the comptroller of the assignment to himself or to the person from whom he claims. (Heermams v. Ellsworth, 64 N. Y. 161.) The recording act has nothing to do with the assignment. (Paige v. Waring, 76 N. Y. 463.) Mandamus is not the proper remedy. If the comptroller committed any error, it should be reviewed by. certiorari. (Howland v. Eldridge, 43 N. Y. 457; People ex rel. Francis v. Com. Council, 78 id. 33; People ex rel. Hammond v. Leonard, 74 id. 443; Code of Civ. Pro., § 2140; People ex rel. Eq. L. As. Co. v. Chapin, 39 Hun, 230; 103 N. Y. 635.)</p> <p>The order of the General Term, granting the writ of mandamus, was discretionary and is not appealable to.this court. (In re Sage v. L. S. & M. S. R. R. Co., 70 N. Y. 220; People, ex rel. Lunney v. Campbell, 72 id. 496; People ex rel. Faile v. Ferris, 76 id. 326; People ex rel. Slavin v. Wendell, 71 id. 171; Platt v. Platt, 66 id. 360.) The sale of 1859 was void, and the comptroller gave no title by his deed. (Becker v. Holdridge, 47 How. Pr. 429.) The act of 1855 was passed to provide against such invalid sales and to protect purchasers at tax sales. (Laws of 1855, chap. 427; 1 R. S. [7th ed.] 1031 §§ 83, 84, 85; Corbin v. Com’rs of Wash. Co., 3 Fed. Rep. 356.) The deed from Viele and wife to Osborn carried with it the right to demand and receive the money from the comptroller that had been paid for the purchase. (3 R. S. [7th ed.] 2195 §§ 142, 143, 144.) Even if the deed passed no title to the land, because the grantor had none, yet it passed whatever interest and all interest the grantor had in the land or to the money, which stood in the place of the land. (Jackson v. Bowen, 7 Cow. 13; Robinson v. Ryan, 25 N. Y. 320; Klock v. Buell, 56 Barb. 398; Danforth v. Suydam, 4 N. Y. 66; Spears v. Mayor, etc., 87 id. 359.) The comptroller had notice of this deed and he is estopped from setting upon any subsequent payment. (Edward's Lessees v. Darby, 12 Wheat. 210; Potter’s Dwarris, 179.) Mandamus is the proper remedy. (Code of Civ. Pro., §§ 2120,2122; People v. Allen, 42 N. Y. 408; People v. Brown, 55 id. 180; People v. Clerk of Mar. Ct., 3 Abb. Ct. of App. 491; Smith v. Comptroller, 18 Wend. 659.)</p>

The material facts are stated in the opinion. The surrogate had no authority to direct the appellant to render an account as executor. (In re Hood, 90 N. Y. 512; 98 id. 371; Uhlman v. Uhlman, 51 Supr. Ct. 361.) The action pending in Kings county for an accounting is a bar to this proceeding. (Redf. on Surrogates [2d ed.] 642; Chrystie v. Libbey, 5 Abb.

(Reported below, 39 Hun, 588.) This action was originally brought against Henry W. Sargent, the present plaintiff’s testator, to recover one-third of forty bonds to which one-third interest plaintiff claimed a right as equitable assignee. The material facts are stated in the opinion. The bonds were non-negotiable.

(Reported below, 39 Hun, 451.) This action was brought to obtain a judicial construction of the will of George Schlegel, deceased. The facts, so far as material, are stated in the opinion. The entire estate became personalty and vested in the executors in equity, for the purpose of putting them in the possession of a fund to carry out the trust created by the will.

Appeal by defendant, William P. O’Connor, executor of John McEvoy, deceased, from a. judgment of the General Term of the Supreme Court, in the second judicial department, entered upon an order made December 15, 1885, which affirmed, so far as appealed from, a judgment in favor of plaintiff, entered upon a decision of the court on trial at Special Term.

(Reported below, 39 Hun, 571.) This action was in the nature of an action of interpleader, brought originally by the Equitable Assurance Society of the United States to determine the title to a fund in its hands, belonging to the owners of a policy of insurance, issued by it on the life of Samuel W. Canfield, which was claimed by the present plaintiffs and the defendant.

<p>Appeal from judgment of the General Term of the Oourt of Common Pleas for the city and county of New York entered upon an order made April 5, 1886, which affirmed a judgment in favor of plaintiffs entered upon a verdict.</p> <p>This action was brought to recover the pujchase-price of certain goods alleged to have been sold by plaintiffs to defendants.</p> <p>The material facts are stated in the opinion.</p> <p>It is the province of the court to construe contracts unless the meaning is obscure and depends upon the facts aliunde in connection with the written language. (First Nat. Bk. v. Dana, 79 N. Y. 108.) It is only where terms used are technical, or terms having a peculiar meaning in a particular trade or place, that the aid of the jury is invoked to ascertain their meaning. (Goddard v. Foster, 17 Wall. 123; Levy v. Gadsby, 3 Cranch. 186; Bliven v. N. E. Screw Co., 23 How. [U. S.] 432; Etting v. Bk. of U. S., 11 Wheat. 75; 6 Cond. R. 215; Barreda v. Silsbee, 21 How. [U. S.] 147; Beggs v. Forbes, 30 Eng. L. and Eq., 508; Shore v. Wilson, 9 Clark & Fin. 569.) Where a question depends upon and is an inference to be drawn from circumstances, it is a question of fact for the jury; but where it turns upon a question of a writing, and no special circumstances need be taken into account, it is a question of law fox the court. (Stokes v. Johnson, 57 N. Y. 673.) The motion for a nonsuit should have been granted. (Butler v. Butler, 77 N. Y. 472.) Only such defects are waived by acceptance as are or can be known to the purchaser by observation at the time of delivery. (Hoe v. Sanborn, 21 N. Y. 552; White v. Miller, 71 id. 118.) The contract in this case vested the property in the defendants. It was not an executory contract. (Groot v. Gile, 51 N. Y. 431; Terry v. Wheeler, 25 id. 520; Kimberly v. Pachin, 19 id: 330; Crowfoot v. Bennett, 2 Comst. 258, 260.) The cases which determine that acceptance constitutes a waiver as between buyer and seller do not apply either to executed conti'acts of sale or to a breach of warranty. (Muller v. Eno, 14 N. Y. 597; Briggs v. Hilton, 99 id. 517.)</p> <p>The whole charge must be considered to ascertain if there was any error. (Jones v. Osgood, 6 N. Y. 233; Governors of Alms House v. Am. A. Union, 7 id. 236; Lansing v. Wiswell, 5 Denio, 213; Caldwell v. Murphy, 11 N. Y. 416; Walsh v. Kelly, 40 id. 556; Ayrault v. Pacific Bk., 47 id. 576; Beaver v. Taylor, 93 U. S. 46, 54.) The defendants have no ground of exception to the nxling of the court, that the meaning of the words “ stock on hand ” was not, in this case, a question of law, turning upon the construction of the contract to be determined by the court, but that he should leave it to the jury to say what the parties meant by the use of those words. (Stokes v. Johnson, 57 N. Y. 673; Pitney v. Glenns Ins. Co., 65 id. 17; First Nat. Bk. v. Dana, 79 id. 108, 116; Chapin v. Dobson, 78 id. 74; Julliard v. Chaffee, 92 id. 529; Eighmie v. Taylor, 98 id. 288.) On an executory contract for the sale of goods to be delivered at a future day, the acceptance of the goods is held to be an admission of due performance by the seller and a waiver of defects, if any there be, in the subject of a sale. (Reed v. Randall, 29 N. Y. 358.) The defendants were bound to examine the stocks, and to return the same if not as contracted for. Not having done so, they waived all defects. (Hargous v. Stone, 5 N. Y. 73; Pomeroy v. Shaw, 2 Daly, 267; Weaver v. Wisner, 51 Barb. 638; Holden v. Clancy, 58 id. 591; McCormick v. Sarson, 45 N. Y. 265; Woodruff v. Peterson, 56 Barb. 407; Gaylord M'fg. Co. v. Allen, 53 N. Y. 519 ; Dounce v. Dow, 64 id. 415.)</p>

(Reported below, 37 Hun, 385.) The nature of the action, and the material facts are stated in the opinion. There was no error in regard to the admission of evidence concerning the lost power of attorney. (Code, § 933.) The ground for the exclusion of evidence, made competent by section 933 of the Code, must be made out by the party alleging its incompetency as to the particular matter. (Pinney v. Orth, 88 N. Y. 451; Cary v. White, 59 id. 339; Severn v Nat.

<p>Appeal from judgment of the General Term of the Supreme Court in the second judicial department, entered upon an order made December 18,1885, which modified, and affirmed as modified a judgment in favor of plaintiff, entered upon a decision of the court on trial at Special Term.</p> <p>The nature of the action and the material facts are stated in the opinion.</p> <p>The conveyance to the defendant’s wife was valid, and will be sustained. (Carr v. Brees, 81 N. Y. 584; Phœnix Bk. v. Stafford, 89 id. 405; Dunlap v. Hawkins, 59 id. 342; Jenks v. Alexander, 11 Paige, 623; Jackson v. Post, 15 Wend. 588; Phillips v. Wooster. 36 N. Y. 412; Van Wyck v. Seward, 6 Paige, 62, 526 ; Babcock v. Eckler, 24 N. Y. 623; Carpenter v. Row, 10 id. 227.) The word “ creditors,” as used in the statute, means creditors at the time of the conveyance. (3 R. S. [7th ed.] 2329, § 1.) Mrs. Sarles was a purchaser for a valuable consideration, to wit, $1,000. (3 R. S. [7th ed.] 2330, § 5.)</p> <p>The deed to the defendant’s wife was invalid. (Shand v. Hanley, 71 N. Y. 319; Savage v. Murphy, 34 id. 508; Case v. Phelps, 39 id. 164; Carpenter v. Roe, 10 id. 227.)</p>

This action was in the nature of a quo wa/rranto to determine the title to the office of chamberlain of the city of Troy. The material facts are stated in the opinion. ISTo acting chamberlain could be appointed during Church’s absence, because the charter evidently contemplates a temporary sickness or absence, and Church’s absence was not one of that character.

<p>Appeal from judgment of the General Term of the Supreme Court in the fifth judicial department, entered upon an order made January 5, 1886, which affirmed a judgment in favor of plaintiffs, entered on the report of a referee. (Reported below, 39 Hun, 213.)</p> <p>The action was brought originally by the plaintiffs’ testator to charge the defendants as devisees of one Robert Smith with the payment of a debt against him.</p> <p>By his will Smith bequeathed to the defendant, Jennie McKelveyj $200, and to the defendant, Esther McKelvey, $200. He directed the executor to provide a headstone for his grave. The third clause of the will is as follows: “ I hereby order my executor to sell all my real and personal property at public or private sale as he may think best to do, within eighteen months after my death, and the proceeds and avails arising from the sale of my real and personal property after the legacies above mentioned are paid, and my just debts, funeral expenses and grave stone are paid, to divide the balance equally between the following persons,” naming the defendants.</p> <p>The testator died seized of real estate of the value of upward of $9,000, which the executor sold and conveyed to one Hartman. In an action .brought by the defendants in this action against the executor and Hartman for that purpose, the sale and conveyance were set aside, and the referee before whom that action was tried, amongst other things, found and determined and it was by the judgment therein declared, that the land descended to the devisees (the defendants in this action) subject to the execution of the power; that the period in which the executor was empowered to sell having expired, he as such, or as trustee, could not execute the power, so as to give title to a purchaser, and that the plaintiffs in that action were entitled to the possession of the premises as the rightful owners thereof discharged and released from the said trust.</p> <p>The testator, at the time of his death, was indebted to one Pridmore, the latter in an action against the executors, recovered a judgment thereon, and in proceedings had before the surrogate to obtain settlement and application of the personal property of the estate, it appeared that there was none to apply upon his claim. He afterwards assigned the judgment and the debt for which it was recovered to the plaintiffs’ testator, who died, and the plaintiffs were substituted during the pendency of the action.</p> <p>Further facts are stated in the opinion.</p> <p>When a testator directs his land to be sold, and the proceeds divided, the obvious purpose is a sale for the convenience of division, and the beneficiaries take their several interests as money, not as land. (Lorillard v. Coster, 5 Paige, 172, 207; Bolton v. De Peyster, 25 Barb. 539; Arnold v. Gilbert, 5 id. 190; Meaking v. Cromwell, 5 N. Y. 136; Johnson v. Bennett, 39 Barb. 237.) The title vested in the heirs-at-law of the testator, subject to be defeated by the execution of the power. (Catton v. Taylor, 42 Barb. 577; Germond v. Jones, 2 Hill, 569; Willard on Real Estate, 261; Williams on Ex’rs, 578; 4 Kent’s Com. 320; People ex rel. Shaw v. Scott, 8 Hun, 566; Prentice v. Janssen, 79 N. Y. 478.) An estoppel by judgment in a former action, arises where the same matter was at issue therein, and was either litigated by the parties and determined ; or might have been litigated and a decision had upon it. (Smith v. Smith, 79 N. Y. 634; Stowell v. Chamberlin, 60 id. 272; McFadden v. Ross, 34 Alb. L. J. 34; Munday v. Vail, 34 N. J. L. 418; Fairchild v. Lynch, 99 N. Y. 359; King v. Chase, 15 N. H. 9; S. C. 41 Am. Dec. 675; Wood v. Jackson, 8 Wend. 9; S. C. 22 Am. Dec. 603; Smith v. McCool, 16 Wall. 560; Bigelow on Estoppel, 92.) The general rule is that the issuable facts or matters, upon which the plaintiffs’ case proceeded, determine what was at issue, unless it appears, from an examination of all the pleadings in a given case, that other matters were brought forward, and thus became necessarily involved and determined in the suit. (Goble v. Dillon, 86 Ind. 327; Griffin v. Wallace, 66 id. 410; Davis v. Brown, 94 U. S. 423; Russell v. Place, id. 605.) The defendants were in no way concluded or affected by the judgment which Pridmore obtained against the executor, not being parties to that action or privies to it. (Sharp v. Freeman, 45 N. Y. 802.) When there are mutual demands between the parties, which cannot be set off under the statute, but which a court of equity may compensate or apply in satisfaction of each other, without interfering with the equitable rights of any person, the fact that one of the parties is insolvent has frequently been held a sufficient ground for the exercise of equity. (Coffin v. McLean, 80 N. Y. 561; Smith v. Felton, 43 id. 419, 423.)</p> <p>The amount to be paid was ascertained under the contract by a mere computation, and for default in payment thereof interest is chargeable. (Still v. Hall, 20 Wend. 51; Van Rensselaer v. Jewett, 2 N. Y. 135 ; De Lavallette v. Wendt, 75 id. 579; Purdy v. Phillips, 11 id. 406.) Defendants had a right to elect to take the real estate as such instead of its proceeds. (Prentice v. Janssen, 79 N. Y. 478).</p>

<p>By the judgment in an action for the foreclosure of a mortgage upon premises in the city of New York owned by G., plaintiff’s intestate, the referee appointed to sell was directed to pay all assessments on the mortgaged premises out of the proceeds of sale. At the time of the sale there was an assessment on the premises for a local improvement, which the referee paid. This assessment was, on the application of G., subsequently vacated. In an action brought to recover back the amount paid, held, that although the assessment was paid without the knowledge of G., yet as it was paid by order of the court, out of moneys belonging to him, and the court had power to direct the payment so long as the assessment was not vacated, and as its validity could not be determined in the foreclosure suit, the payment was equivalent to a collection from G. under process of law, and he was entitled to recover ; also that it was not necessary, as a condition of recovery, to have the foreclosure judgment set aside or annulled; it was not the adjudication which created the apparent lien, or the authority upon which the right of the city, as between it and the property owner, to collect the assessment, depended.</p> <p>The order vacating the assessment was granted December 4,1871. Plain tiff presented his claim to the comptroller November 17, 1877, pursuant to the requirements of the city charter (§ 105, chap. 385, Laws of 1873) and this action was commenced December 18, 1877. The statute of limitations was pleaded as a defense, but the complaint was dismissed upon the trial wholly upon other grounds. Held, that the statute could not be invoked to sustain the dismissal, as, if error was committed in the ruling, it could not be cured by raising a question on appeal not raised on the trial; also, held, that the claim was not haired by the statute; that, as by the Code of Civil Procedure (§ 406), “ when the commencement of an action has been stayed * * * by statutory prohibition, the time of the continuance of the stay is not a part of the time limited for the commencement of the action ” and as by the city charter (§ 105) plaintiff was prohibited from bringing suit until after the lapse of thirty days from the presentation of the claim, the running of the statute was suspended during the thirty days.</p> <p>Biakinson v. Mayor, eta (92 N. T. 584) distinguished.</p> <p>Also, held, that the question was not affected by the provision of said Code (§ 410), which declares that when a demand is necessary to entitle a party to maintain an action, the time within which the action must be commenced must be computed from the time when the right to make the demand is complete; that this provision only applies where an immediate right of action follows a demand.</p> <p>It seems, the presentation of the claim, although a necessary preliminary to the bringing of a suit against the city, is not the commencement of an action or proceedings to collect the claim within the meaning of the statute of limitations.</p>

Wilbur, administratrix of the estate of her father, Enos Warren, deceased, against said estate. (Reported below, 40 Hun, 203.) The material facts are stated in the opinion. The consideration.of love and affection will not support an executory contract. (2 Kent’s Com. 465; Pearson v. Pearson. 7 Johns. 26; Fink v. Cox, 18 id. 145; Harris v. Clark, 3 N. Y. 93; 2 Barb. 101; Phelps v. Phelps, 28 id. 121; Craig v. Craig, 3 Barb.

(.Reported below, 39 Hun, 61.) In 1859, said Thayer applied to Gideon Pitts, Perez B. Pitts and said Gilbert to make a loan to the Little Palis Manufacturing Company, a Minnesota corporation, this they declined to do, but an arrangement was made by which they loaned $3,000, taking the notes of Thayer, one for $1,000, dated October 1, 1859, payable two years from date, and one for $2,000, dated November T, 1859, payable three years from date.

Appeal by defendant William B. Johnson, from a judgment of the General Term of the Supreme Court, in the Fourth Department, of 29th November, 1886, affirming a judgment of the Court of Sessions of Jefferson County, of 5th June, 1886, convicting defendant of seduction under promise of marriage. The facts appear in the opinion.

The nature of the action and the material facts are stated in the opinion. The common council of Long Island City had full legal power and authority under its charter to employ counsel. (Laws of 1870, chap. 719; Laws of 1871, chap. 461.) Unless a subsequent statute is inconsistent with or repugnant to a former statute, both must be construed as standing together. (People v. Palmer, 52 N. Y. 85; Smith v. People, 47 id. 330; Pott. Dwar. on Stat. 156,157; People ex. rel.

This action was brought originally by Peter Wyckoif, the present plaintiff’s testator, to restrain defendants from entering upon certain lands of the plaintiff in the town of New Utrecht, Kings county, and from grading and constructing any roadway or sidewalks thereon.

(Reported below, 37 Hun, 377.) This action tyas brought to restrain the defendants, who were engaged in the work of grading Eighteenth avenue, in the town of Hew Utrecht, among other things, from digging pits in the roadway and carrying away gravel therefrom. The material facts are stated in the opinion. Ho public right or easement was ever lawfully acquired in the plaintiffs’ land.

This was a motion to dismiss an appeal, the nature of which is stated in the opinion. As the object sought to be accomplished by the act of 1886, chapter 418, wholly failed, the act is therefore void for all purposes. (In re Middletown, 82 N. Y 202; Rochester v. Briggs, 50 id. 566; Cooley on Const. Lim. 178; Webb v. Mayor, etc., 64 How. Pr. 10.)

The nature of the action, and the material facts, are stated in the opinion. The plaintiff can recover no costs in this action unless it appears that the demand was presented, that its payment was unreasonably resisted or neglected, or that the defendants refused to refer the claim as prescribed by law. (Code Civ.

The material facts are stated in the opinion. The relator is entitled to show the actual value of its real estate, situated in the United States of Colombia. (95 N. Y. 562.) The testimony of the witness McCullough, taken by the referee and reported to the court, was competent evidence of the actual value of the real estate of the relator, and being uncontradicted and unimpeached, and not improbable in itself, the court was bound to give effect to it.

, of Adam M. Singer, under the will of Isaac M. Singer, deceased. The material facts are stated in the opinion. The illegality of the allowance of commissions complained of cannot be disputed. (McWhorter v. Benson, 1 Hopk. 36; Morgan v, Hannas, 13 Abb. [N. S.] 361; Slosson v. Naylor, 2 Dem. 257; Meeker v. Crawford, 5 Redf. 420; Tyler v. Hunt, id. 420.) There was no authority for allowing any commission whatever upon the Singer Manufacturing Company stock at any valuation.

This action was brought to recover ' damages to plaintiff’s premises abutting on Amity street in the city of ¡New York, alleged to have been caused by the construction and maintenance of an elevated railroad over said street. Amity street was laid out and opened in 1823, under the act of 1813, and the various acts amendatory and supplemental thereto.

(Reported below, 40 Hun, 499.) The material facts are stated in the opinion. The agreement by the defendants to prefer the Whiting Paper Company was lawful, and did not justify an attachment, on the ground that it furnished evidence that they were about to assign and dispose of their property with intent to defraud their creditors. (Code Civ.

<p>A tax, such as is provided for by the act of 1885 (Chap. 483, Laws of 1885), ‘ to tax' gifts, legacies and collateral inheritances in certain cases,” may be constitutionally imposed.</p> <p>Said act is not violative of the provision of the State Constitution (Art. 3, § 20), which provides that every law imposing a tax “ shall distinctly state the tax and the object to which it is to be applied. ” Said provision was intended to apply to the annual recurring taxes known at the time of the adoption of the Constitution and imposed generally on the entire property of the State ; it does not apply to a special tax like that provided for in said act.</p> <p>The said act provides sufficiently for a notice and hearing, or opportunity to be heard, and so does not invade the constitutional right to “ due process of law.” (Art. 1, § 6.)</p> <p>The said act confers no powers upon Surrogates’ Courts prohibited by the Constitution; the imposition and collection of the tax, as provided in the act, is simply an incident in the settlement of the estate of a deceased person, and is not so foreign to the jurisdiction generally exercised by said courts as to make the act obnoxious to any constitutional objection.</p> <p>The fact that the act may not have operation as intended by the legislature in some cases does not affect its validity in the cases where it may operate without difficulty or embarassment.</p>

This action was for partition. Jacob Weeks died in the city of Mew York on the 9th day of September, 1881, leaving a widow, a will, a large amount of real and personal property and no descendants. ITis widow died on the 7th day of April, 1882; both he and she were, at death, upwards of eighty years old.

<p>The duty of keeping the streets of the city of Troy in repair and free from obstructions is, under its charter, a corporate duty. (§ lo, chap. 131, Laws of 1816; § 2, tit. 2, chap. 598, Laws of 1870.)</p> <p>The city was not relieved from the duty so imposed by the creation of the board of police commissioners under and by the act of 1870 (chap. 520, Laws of 1870); even assuming that board as so constituted is an independent body, not subject to the control of the municipal corporation. The powers conferred and duties enjoined upon the police department by said act in respect to the streets are auxiliary only, not exclusive.</p> <p>To charge a city corporation with negligence, in not removing an obstructian unlawfully placed in one of its streets by a third person, it is not necessary to show express notice; if it appears from the circumstances that the municipal authorities charged with the care of its public streets ought to have known of the obstruction and to have caused its removal, and, if ignorant, that their ignorance resulted from the omission of the duty of inspection, and of the degree of diligence which might reasonably be expected, the city is equally chargeable as if express notice had been actually given.</p> <p>It seems that where the question of negligence in not removing such an obstruction depends upon implied notice, in determining what is a reasonable time from which notice is to be inferred, weight should be given to the consideration that municipal authorities cannot be expected to act with the promptness and celerity of individuals in conducting their private affairs.</p> <p>In an action for negligence causing injury to a child, so young as to be non mi juris, contributory negligence may not be imputed to the child; and so it is not sufficient to defeat a recovery to show that the injury would not have happened without the concurring act of the child, although if committed by an adult it would be a negligent one. There must also be concurring negligence on the part of the parents or guardian.</p> <p>It is not per se negligence on the part of a parent or guardian to permit a child non sui juris to play in the street.</p> <p>In an action against the city of Troy to recover damages for alleged negligence causing the death, of G., plaintiff’s intestate, it appeared that one McL. placed a large heavy counter on the sidewalk of a frequented street in a busy part of the city, tilted in such a manner as to be easily thrown down. Four days afterward, G., a child between five and six years, was playing around the counter with two other children of about the same age, when the counter was thrown down by the children running against or jumping upon it, it fell upon G., inflicting injuries which caused his death. There was evidence tending to show that G’s father went into a store near by, leaving G. at the door, cautioning him not to go far away; the father returned in from two to five minutes, and during that time the accident happened. By a city ordinance the placing of obstructions on the streets, except when done under a license, is prohibited, and certain of the city officials named are author ized to order any obstructions to be removed. Reid, that the court erred in directing a non-suit.</p> <p>Kunz v. City of Troy (86 Hun, 6! 5) reversed.</p>

This action was brought to recover damages for personal injuries alleged to have beenjcaused by defendant’s negligence. A car on defendant’s road ran off on a switch track, and collided with another car going in the opposite direction, thus occasioning the injuries complained of.

This action was brought by plaintifí to have a renewal lease executed to her by the commissioners of common lands of the town of Gravesend, of certain lots owned by the town, situate on Coney Island, and part of what is known as the common lands of the town, declared to be valid, and restraining the town and its officers from accepting bids for the fee of the lot.

This action was brought to recover damages for personal injuries, alleged to have been caused by defendant’s negligence. Plaintiff was crossing the tracks of defendant’s road when she was struck by the rear car of a backing train and was injured. This is the third time the case has been before this court. A mem. of the first decision may be found in 83 New York, 620; it is reported on the second appeal in 94 New York, 12.

<p>Appeal from judgment of the General Term of the Supreme Court in the third judicial department entered upon an order made December 2, 1883, which affirmed the determination and proceedings of the comptroller of the State, upon an application to him to cancel a sale of lands of the relator for unpaid taxes.</p> <p>The material facts are stated in the opinion.</p>

Appeals from orders of the G-eneral Term of the Supreme Court, in the fifth judicial department, made the first Tuesday of June, 1886, which affirmed orders of Special Term which quashed writs of certiorari issued to the assessors of certain towns in Niagara county, to review the assessments made in said towns upon the property of the relator, for the years 1883 and 1884. The facts so. far as material are stated in the opinion.

<p>Appeals from two judgments of the General Term of the Supreme Court in the fifth judicial department, entered upon orders made January 23, 1886, which affirmed judgments in favor of plaintiff, each entered upon decisions of the court on trial without a jury. (Reported below, 39 Hun, 108.)</p> <p>These actions were brought by plaintiff as administratrix of the estate of Hugh Murray, deceased, to foreclose mortgages, both executed by Arthur W. Fox and Horace Williams to said Murray, formerly copartners, upon certain pieces of real estate in Buffalo, a portion of which were owned by the mortgagors jointly and a portion by Fox alone. One of said mortgages was given to secure the payment of a bond executed by Fox alone, the others to secure the joint and several bond of the mortgagors. Both bonds were given to secure indebtedness of the copartnership.</p> <p>The further material facts are stated in the opinion.</p> <p>When, by an agreement between the principal debtor and the creditor, the remedy of the creditor is reserved against the surety, the situation of the surety is not changed and he is not discharged. (Morgan v. Simth, 70 N. Y. 545, 546; Matthews v. Chicopee M'fg. Co., 3 Robt. 713; Calvo v. Davies, 73 N. Y. 217; Hubbell v. Carpenter, 5 id. 171; Price v. Barker, 4 Ellis & Bl. 760; Boaler v. Mayer, 10 C. B. N. S. 76; 8 Jacob’s Fisher’s Dig. 12894; Wagman v. Hoag, 14 Barb. 239; Couch v. Mills, 21 Wend. 424.) A release may expressly extend only to the party released, with the express reservation of rights against other parties, in which case it will be construed only as a covenant not to sue. (1 Pars. on Con. 28; 2 id. 715; Chitty on Con. 863; 2 id. [11 Am. ed.] 1155; Parmelee v. Lawrence, 44 Ill. 405; Brandt on Suretyship, § 123; 7 Jacob’s Fisher’s Dig. 11564; Couch v. Mills, supra; Morgan v. Smith, 70 N. Y. 545; Calvo v. Davies, 73 id. 217; Conn. Fire Ins. Co. v. Erie R. Co., id. 399; Tripp v. Vincent, 3 Barb. Ch. 613; Bentley v. Vanderheyden, 35 N. Y. 680; Johnson v. Zink, 51 id. 333; Story Eq. Jur., § 1231, c.) The conveyance by warranty deed containing full covenants (covenants against incumbrance, included), of said mortgaged premises, gave the sugar company an immediate right of action for the breach of those covenants. (Rawle on Cov. [4th ed.] 355; Braman v. Bingham, 26 N. Y. 495; Hall v. Dean, 13 Johns. 105; Browne v. Lynde, 91 N. Y. 92; Johnson v. Zink, 51 id. 333; Flower v. Lance, 59 id. 608; Cherry v. Monro, 5 Barb. Ch. 619; Tripp v. Vincent, supra; Curtis v. Tyler, 9 Paige, 432, 445; Russell v. Pistor, 7 N. Y. 171; Story’s Eq. Jur, §§ 499, 502, 638; Moore v. Paine, 12 Wend. 126; Vail v. Foster, 4 N. Y. 312; Nat. Bk. v. Bigler, 18 Hun, 400, Crosby v. Crafts, 5 id. 327; Pratt v. Adams, 7 Paige, 627; Wadsworth v. Lyon, 93 N. Y. 201-208.) Where a grantee, like the Grape Sugar Company in the present case, for a.valuable consideration, releases the express covenants, which gave it a remedy over against its grantor in case of a foreclosure of the mortgage, there can be left no implied right of subrogation or implied right to recover against the grantor. (Vanderkarr v. Vanderkarr, 11 Johns. 122; Kent v. Welch, 7 id. 259; Frost v. Raymond, 2 Caines, 188.) The plaintiff produces the bond and mortgage in suit, which is prima facie evidence that they have not been paid, and the burden of proof is upon the defendants to establish payment by a preponderance of evidence. (Ritter v. Schenk, 101 Ill. 387; 2 Greenl. on Ev., § 516; 3 id. § 29; Powers v. Russel, 13 Pick. 76; Delano v. Bartlett, 6 Cush. 366; Stearns v. Fields, 90 N. Y. 640; Heilman v. Lazarus, id. 673.) Ho presumption from lapse of time of the payment of a mortgage can arise under our statute within twenty-four years after the mortgage becomes due. (4 R. S. [7th ed.], §381; Ingraham v. Baldwin, 9 N. Y. 45; Daly v. Ericsson, 45 id. 786.) An administrator cannot create a debt against the deceased, and it is immaterial how clearly the intent to do so may be expressed, for, having no power to bind the estate, he only binds himself by such a contract. (Sumner v. Williams, 8 Mass. 199; Myer v. Cole, 12 Johns. 349; Barry v. Bush, 1 T. R. 691.) This agreement not being signed by the plaintiff, but by her attorney in fact, is void. The plaintiff could not delegate the power to make it. (2 Williams’ Ex’rs, 1011, 1018; Dayton on Surrogates [1861], 310; Neal v. Patten, 47 Ga. 73; 1 Sugden on Powers [3d Am. ed.], 214; Newton v. Bronson, 13 N. Y. 587; Berger v. Duff, 4 Johns. Ch. 367.) To entitle a third person to the benefit there must be either a new consideration or some prior right or claim against one of the contracting parties, by which he has a legal interest in the performance thereof. (Vrooman v. Turner, 69 N. Y. 280; Garnsey v. Rogers, 47 id. 233; Turk v. Ridge, 41 id. 201; Merrill v. Green, 55 id. 270.)</p> <p>The evidence of defendants established payment of the mortgages. (Wise v. Fire Ins. Co., 4 East. Rep. 51; Ferry Co. v. Moore, 102 N. Y. 667; De Forest v. Bloomingdale, 5 Denio, 304; Sherman v. McIntyre, 7 Hun, 593; Lake v. Lysen, 6 N. Y. 461.) The release and discharge to Williams under seal is conclusive evidence of the payment of the firm debt. (Ryan v. Ward, 48 N. Y. 204; Harrison v. Close, 2 Johns. 448; Stearns v. Tappan, 5 Duer. 294; Eighmie v. Taylor, 98 N. Y. 288; Lyon v. Hersey, 7 East. Rep. 490.) The facts proved and found show an accord and satisfaction. (McDaniels v. Lapham, 21 Ver. 223, 234; Lamb v. Goodwin, 10 Ire. 320, 323; Donahue v. Woodbury, 6 Cush. 150; Feeter v. Weber, 78 N. Y. 334; Dunham v. Griswold, 100 id. 224.) When one of two persons, who gives a joint and several bond, and secures the payment of the bond by a mortgage on his individual property, the individual property mortgaged is prima facie, a surety for the payment of the bond, and the owner of the land is entitled to all the rights which protect a surety in any other case. (Grow v. Garlock, 97 N. Y. 86; Colgrove v. Tallman, 67 id. 95; Calvo v. Davies, 75 id. 211; Palmer v. Purdy, 83 id. 144; Murray v. Marshall, 94 id. 614; Ayers v. Dixon, 78 id. 323, 324.) If the property of these two classes of defendants was bound as a surety only, then, upon the payment of the mortgage debt, either one so paying is entitled, in equity, to be subrogated to the mortgage debt with all the securities- and means which the mortgage creditor has for enforcing it. (Fairchild v. Lynch, 99 N. Y. 364; Wadsworth v. Lyon, 93 id. 201; Ayers v. Dixon, 78 id. 323, 324; Murray v. Marshall, 94 id. 614, 616; Grow v. Garlock, 97 id. 81.) Whenever the relation of surety exists, the creditor owes a duty to the surety, not always an active duty, but a duty to leave the time and manner of payment unchanged; a duty to keep intact all obligations against the principal; and plaintiff having disregarded this duty, defendants are discharged. (Kane v. Cortesy, 100 N. Y. 132.) Williams, the survivor and principal debtor, was discharged by the plaintiff. As to the bond made out in the name of Arthur W. Fox alone, his representatatives cannot be sued, it being for a firm debt, until the legal remedy against Williams, the survivor of the firm, had been exhausted. (3 Pomeroy’s Juris., § 1301; Parker v. Jackson, 16 Barb. 44; Moorehouse v. Ballou, id. 289; Haines v. Hollister, 64 id. 1; Hunt v. Amidon, 4 Hill, 345, 348; Merritt v. Bartholick, 36 N. Y. 44; Bennett v. Austin, 81 id. 321; Voorhis v. Childs, 17 id. 356; Richter v. Poppenhausen, 52 id. 373.) Williams, the survivor, was the principal debtor at law and in equity, and, as such, primarily •charged with the debts of the firm, and absolutely vested with the legal title to its assets, wherewith to discharge those •debts. (Roeschick v. Hatfield, 51 N. Y. 660; Nerboss v. Bliss, 88 id. 600; Stearns v. Tapping, 5 Duer. 294; 1 Pomeroy’s Eq. Jur., § 383.) Unless the contrary clearly appears from the instrument itself, or the surrounding circumstance, .a release or discharge under seal of a principal is also a release .and discharge to the sureties, even though it formally contain a reservation over of rights against sureties or securities. (Lyon v. Hersey, 7 East. Rep. 490; Aloff v. Scrimshaw, 2, Salk. 574; 1 Chitty on Cont. [11th Am. ed.] 575, 774; Brandt on Suretyship and Guaranty, 173, § 122; Brown v. Williams, 4 Wend. 365; Phelps v. Johnson, 8 Johns. 54; Matthews v. Chicopee M'f’g Co., 3 Rob. 713; Clark v. Bush, 3 Cow. 151; Cuyler v. Cuyler, 2 Johns. 185; Phelps v. Johnson, 8 id. 54; Harrison v. Close, 2 id. 448; Rowley v. Stoddard, 7 id. 207; Catskill Bk. v. Messenger, 9 Cow. 37; Chenango Bk. v. Osgood, 4 Wend. 607; Couch v. Mills, 21 id. 424; Hosack v. Rogers, 8 Paige, 229; Seymour v. Minturn, 17 Johns. 169; Bronson v. Fitzhugh, 1 Hill, 185; 2 Chitty on Cont. 1154; Price v. Barker, 4 El. & Bl. 760) Neither defendant could be subrogated to the debt as against Williams, after his discharge. He was good, and the right of action against him on the bond was a perfect security for the whole debt at the time'he was discharged. (3 Pomeroy’s Eq. Jur., §§ 1210, 1214, 1419; Grow v. Garlock, 97 N. Y. 81; Murray v. Marshall, 94 id. 616; Dutcher v. Rapp, 67 id. 464; 1 Story’s Eq. Jur., § 325; Hoyt v. Ward, 4 Johns. Ch. 123; Bangs v. Strong, 10 Paige, 11; Calvo v. Davies, 73 N. Y. 215; Palmer v. Purdy, 83 id. 147.) The plaintiffs are in error in contending that section 1942 of the Code does not apply to this release. (Richter v. Poppenhausen, 42 N. Y. 373; Cole v. Pope, 55 id. 124; Rixley v. Brown, 67 id. 160; Hauck v. Craighead, id. 432; 1 Pomeroy’s Eq. Jur., § 409; Randall v. Sackett, 77 N. Y. 480; Candee v. Smith, 93 id. 349.) As this is an equity action the court will not reverse the judgment if it can be sustained upon competent proof upon any point fatal to plaintiff’s recovery. .(Church v. Kid, 3 Hun, 259; Marvin v. Marvin, 11 Abb. [N. S.] 102; 4 Keyes, 9; King v. Whaley, 59 Barb. 71; Apthorp v. Comstock, 2 Paige, 482; In re N. Y. C. & H. R. R. R. Co., 90 N. Y. 346, 347.)</p> <p>The indebtedness secured by the bond and mortgage being the indebtedness of the firm of A. W. Fox, Williams, as one of the partners in the firm, was liable as such; and on the death of Fox, in 1874, Williams, as the survivor, was primarily liable. • (Voorhees v. Childs Ex’rs, 17 N. 354; Richter v. Poppenhausen, 42 id. 373; Pope v. Cole, 55 id. 124.) The position of the Grape Sugar Company, as grantee of the mortgaged premises, was that of a surety with respect to this mortgage debt. (Wadsworth v. Lyon, 93 N. Y. 201, 208, 214; Barnes v. Mott, 64 id. 397; Murray v. Marshall, 94 id. 353; Cole v. Malcolm, 66 id. 363; Colegrove v. Tallman, 67 id. 95, 97, 98; Ellsworth v. Lockwood, 42 id. 89, 97, 98; Henckley v. Kreitz, 58 id. 591; Lewis v. Palmer, 28 id. 271; Matthews v. Aiken, 1 id.. 595.) The release, by the plaintiff, of the obligor, Williams, from all liability on this bond, exonerated the lands conveyed to the Grape. Sugar Company from the lien of the mortgage. (Barnes v. Mott, 64 N. Y. 397; Chester v. Bk of Kingston, 16 id. 330; Henckley v. Kreitz, 58 id. 583; Grow v. Garlock, 97 id. 81; Cheesebrough, v. Millard, 1 Johns. Ch. 409; Polak v. Everett, L. R. [1 Q. B. D.] 669; Mayhew v. Crickett, 2 Swanst. R. 185; Bangs v. Strong, 10 Paige, 11; Bateson v. Gosling, L. R. [7 C. P.] 9; Lysaght v. Duer, 5 Duer, 106,) The- release given in 1881, by the Buffalo Grape Sugar Company, to Williams and the estate of Fox, from all liability on the covenants contained in its deed, does not change the relation of the parties or the consequences of the release given by the plaintiff to Williams. (Van Rensselaer v. Kearney, 11 How. [U. S.] 631; Wadsworth v. Lyon, 93 N. Y. 208.) The payment of the. bond and mortgage was established and the finding of the court to that effect is well sustained. (Code of Civ. Pro., § 1337; Haight v. Williams, 46 N. Y. 683; Stilwell v. Ins. Co., 72 id. 385.) The plaintiff’s breach of the agreement of April 29, 1881, exonerated the lands of the Grape Sugar Company from the lien of the mortgage in suit. (Pomeroy’s Eq. Jur., §§ 3, 64.) It was competent and proper to show that this agreement was made on behalf of the Grape Sugar Company. (Coleman v. Bank, 53 N. Y. 388.)</p>

The nature of the action and the material facts are stated in the opinion. A debtor who makes a general assignment for the benefit of his creditors must devote all his property to the payment of his debts, and the withholding of any sum of money at the time of making the assignment from the assignee must in some form be explained, otherwise it is sufficient to establish a fraudulent intent. (White v. Fagan, 18 N. Y. Week.

This action was brought to restrain defendants, the town of Gravesend and the trustees of the common lands of the town, from selling,… Held: as follows: “ jResolved, that the common land of the town of Gravesend on Coney Island, shall hereafter be let only at public auction, on the premises to be let, or at the town house in the town, to the highest bidder, in parcels not more than three hundred feet each (excepting Coney Island Point, which may be let in one parcel as at…

This action was brought to recover damages for an alleged breach of an agreement. On the 1st day of January, 1876, J. M. Dygert conveyed to plaintiff by warranty deed certain premises for the consideration of $1,500, in part payment of which plaintiff gave back to Dygert a mortgage of $1,363.81. There were two prior mortgages on the property, the first one of which was held by the defendant and the other by Myers & Rasbach.

<p>In an action to recover dower it appeared that plaintiff, during the lifetime of her husband, who had been declared a lunatic, and a committee of his estate appointed, entered into a contract with the committee and the children of her husband, and executed to them a deed, by which, in consideration of the receipt by her of about one-third of her husband’s property, she released all interest in his estate, including “her inchoate right of dower (if any exists), of, in and to any and all real estate,” and also covenanted at any future time, on demand, to execute all necessary deeds, releases or tranfers, to carry out the intention of the parties, “namely, the full and perfect release ” of lier“ inchoate and other rights in the property” of her husband, which she had or might have at the time of the death, and she also covenanted not to make any claim therefor on the death of her husband Held, that plaintiff was not entitled to dower ; that there was under the agreement and-within the meaning of the Revised Statutes (IR. S. 741, §§ 12, 13, 14), a pecuniary provision made in lieu of dower; and, as plaintiff had retained that provision and never offered to return it. she must be deemed to have elected to keep it in lieu of dower.</p> <p>Also held, that while the agreement and deed did not operate as a present release of her inchoate right of dower, as under the agreement she received a separate estate, it was obligatory upon her, and she was bound to release her dower ; that it was immaterial that defendants did not then own the land in which dower is claimed; that they were competent to make a contract for the benefit of the land when their interest should come into existence.</p> <p>Jones v. Fleming (37 Hun, 227) reversed.</p>

(Reported below, 35 Hun, 349.) This action was brought to recover damages for personal injuries alleged to have been caused by defendant’s negligence. The material facts are stated in the opinion. There was no proof in this case of negligence on the part of the defendant. (Moulton v Town of Sandford, 51 Me. 127; Titus v. North Bridge, 97 Mass. 258; Horton v. Taunton, 97 id. 266; Kennedy v. Mayor, etc., 73 N. Y. 368; Mors v. Burlington, 80 Ia. 438; 46 Am.

This action was brought upon two guaranties, given in 1880 and 1881 to the State, by the First National Bank of Buffalo, to secure deposits of canal tolls. The guarantees were alike, save in the name of sureties and dates. The defendants executed both. Each was also executed by one person, who did not sign the other.

This action was for the claim and delivery of certain railroad ties. The primary question relates to the title to the ties on the 28th of February, 1879. The plaintiff claims title by virtue of a purchase in 1875, from persons, who, in 1871 and 1872, had cut the ties on their land, under contracts with the Delhi & Middletown Railroad Company, and had deposited them on or near the lands of the company.

<p>Where, by the charter of a municipal corporation, the duty is imposed upon it of keeping its streets and sidewalks in a reasonably safe and proper condition for public use, for a neglect to perform this duty it is liable for damages to persons who because thereof, without fault on their part, receive injuries.</p> <p>Actual notice to the proper municipal authorities of a defect is not necessary in order to charge it with negligence ; they owe to the public the duty of active vigilance; and where a street or sidewalk has been out of repair for any considerable length of time, so that by reasonable diligence they could have notice of the defect, such notice may be imputed to them.</p> <p>Snow and ice which had fallen from time to time from a barn adjoining the sidewalk on one of defendant’s streets, had accumulated on the sidewalk to the height of about three, feet above the surface, and about two and a half feet above the snow on the rest of the sidewalk. This accumulation had been there about two weeks when plaintiff, in passing over it, fell and was injured. By defendant's charter (chap. 220, Laws of 1866) the care and custody of its streets are imposed upon its trustees, and it is made their duty to establish such ordinances and regulations as they may think proper, among other things, to provide for and regulate the repairing and cleaning of streets and sidewalks, and power is given to raise money to discharge these duties. In an action to recover damages, 7ield, that defendant was properly charged with negligence.</p> <p>It appeared that the street in question, with its sidewalks, had been open for its full width for about forty years; it was a prinicipal street of the village and extensively used. Water mains were laid through it, and curb-stones had been placed along the sidewalks at the expense of the village. Held, the evidence justified a finding that the street, for its whole width, had been dedicated to and accepted by the public, and that it was legally one of the village streets.</p> <p>By defendant’s charter, after provisions had been made for repairs of its streets and sidewalks, for the purpose of providing the means for defraying expenses, the board of trustees were authorized to raise annually a sum not exceeding an amount specified “for the support of roads * * * streets, lanes and alleys within the village.” Held, that the word “ streets ’’included the whole space between the outer lines thereof, i. e., not only the roadway but the sidewalks; and that the money raised could be used as well for the repair of the sidewalks as the roadbed.</p> <p>The village superintendent, whose duty it was, under the direction of the trustees to make repairs, testified that he did not have any money in his hands for that purpose; there was no proof that there were not sufficient funds in the treasury of the village, which under the charter could have been placed in his hands. Held, the evidence failed to show want of funds to repair the sidewalk.</p> <p>Also held, that plaintiff’s claim was not of the character required by the act of 1875 (§ 2, chap 517, Laws of 1875) to be presented to and audited by the auditors of the village.</p> <p>Upon the trial plaintiff offered in evidence an ordinance of the village, which imposed penalties upon persons who should throw snow or ice from roofs upon sidewalks, or who should neglect to keep sidewalks in front of their lots and buildings clear of snow and ice; this was received under objection and exception. Held, no error.</p> <p>A witness called for the plaintiff, after she had testified as to the condition of the sidewalk, and that a person had to be very careful, or fall, as she knew from experience, was permitted to testify, under objection, that she fell down in the same place. Held, no error.</p> <p>The evidence tended to show that this embankment of snow and ice was perfectly visible; there was a light covering of recent snow over the ice. Held, a refusal of the court to charge, as matter of law, that it was negligence for plaintiff, under the circumstances, to attempt to pass over the embankment was not error.</p>

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

The facts, so far as material, are stated in the opinion The plaintiff’s alleged, cause of action did not arise within the State of New York, since the contract upon which it is based was made in Wisconsin, their demand of performance was also made there, and the breach, if any occurred, took place in that State. (Bk. of Augusta v. Earle, 13 Pet. 519; La Fayette Ins.

Appeal by the people from a judgment of the General Term of the Supreme Court in the Fourth Department of 13, November, 1886. The defendant, John E. O’Sullivan, was tried at the Court of Oyer and Terminer of Onondaga county, Hon. Geo. N. Kennedy, presiding, for the crime of rape, and was convicted and sentenced to eleven years imprisonment.

Appeal by defendant Peter Smith from a judgment of the General Term of the Supreme Court in the first department, affirming a judgment of the Court of General Sessions of Hew York, of 18th September, 1885, Hon. Frederick Smyth presiding, convicting defendant of murder in the first degree. The defendant was jointly indicted with one Alexander Sweeney, but was separately tried.

(Reported below, 16 Hnn, 121.) The nature of the action and the material facts are stated in the opinion. The entire testimony of Alfred Gilman, given upon the trial of this cause as to personal transactions and communication with plaintiifs’ intestate was incompetent and inadmissible, he being the general agent of the defendant and having transacted all the business in relation to the matters in suit for the defendant.

Appeal by defendant, George Ogle, from a judgment of the General Term of the Supreme Court, in the First Department, entered upon an order made June 28, 1886, which affirmed a judgment of the Court of General Sessions for the City and County of Hew York, entered upon a verdict convicting defendant of murder in the second degree. This case at General Term is reported in 4 K. Y. Grim. Rep. 349, where will be found the brief of defendant’s counsel.

(Beported below, 36 Hun, 610.) This action was brought to recover the value of certain lumber manufactured from logs cut by defendants from certain lands in Fulton county, to which plaintiff claimed title under a comptroller’s deed on sale of the land for unpaid taxes. The facts, so far as material, are stated in the opinion.

<p>The provision of the Code of Civil Procedure (§ 1379), authorizing the submission of a controversy upon facts admitted, is limited to controversies which can be followed by an effectual judgment upon the submission.</p> <p>Where, therefore, the only relief the plaintiff would be entitled to on the facts agreed upon is an injunction, as that relief is expressly prohibited (§ 1281) in such a proceeding, the submission should be dismissed.</p>

The facts, so far as material, are stated in the opinion. district attorney, for respondent. The offense proven was buglary in the first deg'ree. (Penal Code, § 496.) The omission of defendant’s name in the indictment is immaterial, he is named before and after such omission, and is sufficiently named. (Code of Crim. Pro., §§ 284, 285, 764.)

This action was brought upon a guaranty executed by the original defendants indorsed upon a bond executed by the First National Bank of Buffalo. The substance of the bond and guaranty and the material facts are stated in the opinion. The defendants are not liable upon the contract of guaranty which is the subject of this action. Its execution, etc., by them being without any consideration. (McLaren v. Watson, 26 Wend. 435; Westhead v. Sprosen, 6 H. & N. 728; 23 Moak’s Eng.

The nature of the action and the material facts are stated in the opinion. The notes are void on their face. (Story on Promissory Notes, §§ 22, 23; Chitty on Bills, ch. III, 37.) The court having jurisdiction of the cause of action, it was only after it had reformed the notes that it could acquire th'e right incidentally to give relief in damages. (McDougall v. Cooper, 31 N. Y. 499; Wells v. Yates, 44 id. 531; Maher v. Hibernia Ins. Co., 67 id. 293; Bidwell v. Astor Mut. Ins.

<p>Where a complaint shows a cause of action in favor of the plaintiff, not in a representative but in his individual capacity, the addition of the words “executor,” etc., in the title, and a statement in the complaint, that he is executor of the will of a deceased person named, do not prevent a recovery by him individually ; the descriptive words may be rejected.</p> <p>So, also, words added to the name of the payee in a promissory note, showing that he is executor are mere descripiio persona, and an action may be maintained thereon by the payee in his individual capacity.</p> <p>Plaintiff’s complaint alleged his appointment as executor of the will of H., the execution to him by the K. O. 0. R. R. Co. of a promissory note, a copy of which was set forth in the complaint, which was made payable to him or order, he being described as executor of H.; the transfer and delivery of the note to F., who held the same at the time of the making of an agreement between plaintiff and defendant; in pursuance of which agreement plaintiff transferred and assigned to defendant certain stock and bonds of the company and claims against it. In consideration whereof defendant, by the said agreement, promised, among other things, that when his interest in the road and in the securities was closed up he would apply the proceeds, with the consent of the company, to the payment of the note, provided F. would relinquish certain bonds of the company. The complaint further alleged that said agreement was entered into by plaintiff individually, for the purpose of making certain provision for the payment of the note; that the note and the bonds referred to were thereafter assigned to him by F.; that when the note became due payment was demanded and refused, it was duly protested and notice of nonpayment served upon plaintiff; that the interest specified in the agreement had been closed up, and defendant had received on account of the property, over and above all advances and expenditures, a sum more than sufficient to pay said note; that the consent of the company to such payment had been obtained, and that a tender of the bonds was made, with demand of payment, but that defendant refused to pay. On demurrer to the complaint; held, that it set forth a good cause of action; that if plaintiff simply occupied the position of assignee from F.. the promise of defendant became available to, and could have been enforced by F., and by the transfer of the note to plaintiff he acquired that right; that even if this were not so, plaintiff, having become possessed of the note, could enforce the promise to pay it, not simply as assignee of F., but as a party to the agreement.</p>

<p>Appeal from judgment of the General Term of the Supreme Court in the second judicial department, entered upon an order made December 18, 1885, which reversed a judgment entered upon an order in favor of defendant, dismissing the complaint after verdict, and which directed a judgment in favor of plaintiff on the verdict.</p> <p>This action was brought under chapter 700, Laws of 1881, to recover damages for personal injuries received in falling down an embankment of Eighty-sixth street, in the town of New Utrecht, which the complaint alleged had been negligently left by the commissioners of the town without a fence or railing.</p> <p>The material facts are stated in the opinion.</p> <p>A municipality, by virtue of its general obligation to keep in repair all the public improvements within its territorial jurisdiction, is not bound, although its streets may, in fact, be dangerous, either to remedy the defect inherent in the plan itself, or guard the traveling public against accidents from such defect. (City of Detroit v. Buckman, 22 Am. R., 507 [34Mich. 125]; City of Lansing v. Toolan, id. 510 [37 Mich. 152]; Urquhart v. City of Ogdensburg, 91 N. Y. 67, 71; Conrad v. Trustees of Ithaca, 16 id. 158; Weet v. Trustees of Brockport, id. 161, 173; Laws of 1869, chap. 670; Laws of 1873, chap. 364, §§ 1, 2, 5, 9; Dillon on Munic. Corp. [3d ed.], § 974; Maximilian v. Mayor, etc., 62 N. Y. 160; Tone v. Mayor, etc., 70 id. 158, 165, 166; Ham v. Mayor, etc., id. 459; N. Y. & B. S. M. & L. Co. v. City of Brooklyn, 71 id. 580; Terhune v. Mayor, etc., 88 id. 248, 251; Bamber v. City of Rochester, 26 Hun, 587.) In this State the liability of towns in respect of their highways, under chapter 700, Laws of 1881, is prospective and only co-extensive with that of highway commissioners. (Fraser v. Town of Tompkins, 30 Hun, 168; Eveleigh v. Town of Honesfield,. 34 id. 140; Shepherd v. Lincoln, 17 Wend. 250; People v. Adsit, 2 Hill, 619; Smith v. Wright, 27 Barb. 622, 631, 632; Williams v. East India Co., 3 East. 192.) The highway commissioners could not have procured any more money than they received, nor could they provide themselves with any other means. (Baker v. Loomis, 6 Hill, 463; People ex rel. Everett v. B'd of Supr's, 93 N. Y. 397; Laws of 1869, chap. 800, § 6.) Under the circumstances the selection of the places to be repaired or fenced was necessarily referred to the discretion of the highway commissioners. (Garlinghouse v. Jacobs, 29 N. Y. 297, 308, 312, 313, 314; Hover v. Barkhoof, 44 id. 119, 120.) A public officer is not liable in a civil action, nor can he be reached by mandamus for an abuse or improper exercise of discretion in the discharge of a duty administrative or- quasi judicial in its nature, no matter how corrupt' or sinister his motive. The only remedy is by indictment. (Dillon on Munic. Corp. [3d ed.], § 949; Wilson v. Mayor, etc., 1 Den. 595, 599, 600; Weaver v. Devendorf, 3 id. 117, 120, 121; Vail v. Owen, 19 Barb. 22; Barhyte v. Shepherd, 35 N. Y. 238; People ex rel. Francis v. Common Council, 78 id. 33; E. R. G. L. Co., v. Donnelly, 25 Hun, 614; 93 N. Y. 557; Cain v. City of Syracuse, 95 id. 83.)</p> <p>It was the duty of the highway commissioners of the town to keep the highways thereof in repair, and the town is made liable for all damages to person or property by reason of defective highways. (Laws of 1881, chap. 700; Hyatt v. Trustees of Rondout, 44 Barb. 385; 61 N. Y. 509; 51 id. 513; Ring v. City of Cohoes, 77 id. 88; Gillespie v. Newburgh, 54 id. 468; S. & R. on Negligence, § 39; Hubbell v. City of Yonkers, 35 Hun. 349.) The duty to keep the highway in repair is ministerial, and for a negligent omission to perform this duty, an action lies by the party injured. (Hines v. City of Lockport, 50 N. Y. 238; Warren v. Clement, 24 Hun, 474.) The commissioners of highways should be held liable for a neglect of duty as they have ample funds in their hands, and the injury to an individual occurs from their wrongful omission to use them, though they may not always have such funds. (Robinson v. Chamberlain, 34 N. Y. 395; Hover v. Barkhoof 44 id. 113; Olmstead v. Dennis, 77 id. 382.) When improvements -have been made to a street, the duty of keeping it in repair so as to prevent its being dangerous to the public is ministerial, and for a negligent omission to perform it an action by the party injured will lie. (Hines v. Lockport, 50 N. Y. 236; Urquhart v. Ogdensburgh, 91 id. 71; Hubbell v. Yonkers, 35 Hun, 349.)</p>

The material facts are stated in the opinion. In the absence of evidence to the contrary, the claimant, as riparian owner, is entitled to the natural flow of water in the Seneca river past its premises, without interference from State, corporation or individual. (Chenango Bridge Co. v. Paige, 83 N. Y. 178; Smith v. City of Rochester, 92 id. 463.) There was no warrant for the extensive invasion of the claimant’s rights, of which it now complains.

Commissioners of excise are State and not municipal officers. (Laws of 1870, chap. 175; Laws of 1874, chap. 444; Laws of 1855, chap. 231; Laws of 1857, chap. 628; Laws of 1873, chap. 149; Laws of 1874, chap. 444; Laws of 1882, chap. 126; Laws of 1883, chap. 340; Laws of 1886, chap. 496; Cooley on Const. Lim. chap. 16, § 575; 2 Dillon on Munic.

This action was brought to set aside an assignment, for the benefit of creditors, made by defendant George W. Brown, to defendant William W. Butcher. The complaint alleged the recovery of two judgments in favor of plaintiff against the assignor, the issuing of executions thereon and returns thereof unsatisfied, the execution of the assignment, a copy whereof was attached to the complaint, and which it was alleged was fraudulent and void on its face.

These were cross appeals from a judgment of the General Term of the Supreme Court, in the first judicial department, entered upon an order made January 8, 1886, which affirmed in part and reversed in part a judgment in favor of plaintiff, entered upon a decision of the court on trial at Special Term. (Reported below 38 Hun, 593.) The nature of the action, and the material facts, are set forth in the opinion.

Appeal by the defendant Charles J. Everhardt, from a judgment of the General Term of the Supreme Court in the First Department, of January 4, 1887, which affirmed a judgment of the Court of General Sessions of the City and County of New York, entered upon a verdict convicting defendant of forgery in the second degree. The case at General Term is reported in 5 IF. Y. Orim. Hep. 91, where will be found a full statement of facts and the briefs of counsel on both sides.

The material facts are stated in the opinion. To convict a defendant of this crime it is necessary to aver and prove that the letter or writing threatened to do one or the other of the four acts specified in section 558 of the Penal Code; that the defendant knew the contents of the letter or writing; that he sent it, or caused it to be forwarded or received, with the intent by means thereof to extort or gain money. Everything else is surplusage.

(Reported below, 39 Hun, 460.) The nature of the action and the material facts are stated in the opinion. With plaintiff’s knowledge of the fraud practiced upon him by Midas, his action to recover the price of the goods was an election to affirm the sale and allow the vendee to retain the property, and he thus secured the benefit of a warrant of attachment which he could not have procured had he elected to disaffirm the contract and reclaim the goods.

The complaint alleged in substance the recovery of judgment in favor of plaintiffs against defendants, Herron and Spencer, and the return of execution thereon unsatisfied; that after the contraction of the debt upon which the judgment was rendered the debtors made an assignment for the benefit of creditors, and that defendant, Thurber, was by order of the court substituted as assignee in place of those named in the assignment.

This was a motion to substitute Edgar O. Brackett, administrator of the plaintiff, who died pending the appeal to this court, as plaintiff in Ms stead, and for affirmance of the judgment appealed from in favor of the substituted plaintiff. The case upon decision of the appeal is reported in 103 1ST. T. 429. The further facts presented on the motion are stated in the opinion.

Cross-appeals from judgment of the General Term of the Supreme Court, in the first judicial department, entered upon an order made January 18, 1886, which affirmed a decree of the surrogate of the county of New York on final accounting of the executors of the will of John N. Marshall, deceased. The facts, so far as material to the questions discussed, are stated in the opinion.

(Reported below, 32 Hun, 126.) The nature of the action and the material facts are stated in the opinion. The General Term erred in holding that the seventh clause of the will creates a trust for plaintiff. (Campbell v. Beaumont, 91 N. Y. 465; Freeman v. Coit, 96 id. 63; Roseboom v. Roseboom, 81 id. 356; Clarke v. Lupp, 88 id. 231; Parsons v. Best, 1 N. Y. Supr. Ct. 211; 2 White & Tudor’s Ld’g Cas., part 2, Am.

<p>Appeal from a judgment of the general term, affirming a judgment entered upon the report of a referee.</p>