Volume 105 — New York Reports

Stephens and Julius W.\ Kellam appointed in proceedings supplementary to execution to recover for the alleged conversion of certain personal property to which he claimed title as such receiver. Defendant claimed title under an assignment for the benefit of creditors executed to him by Stephens & Kellam. The material facts are stated in the opinion.

(Mem. of decision below, 41 Hun, 444.) It was error in any view to grant the order appealed from before the rents and profits were restored. (Benson v. Perry, 17 Hun, 16; S. C., 77 N. Y. 625; 98 id. 480; 101 id. 13.) There is no warranty of any kind on sales by a sheriff, but the doctrine of caveat emptor applies to the fullest extent.

<p>Appeal from, judgment of the General Term of the Supreme Court, in the first judicial department, entered upon an order made March 4, 1885, which affirmed a judgment in favor of plaintiff, entered upon a verdict directed by the trial court.</p> <p>The nature of the action and the material facts are stated in the opinion.</p> <p>The only creditor a sheriff, armed with process, under which he is about to sell property, can regard is a judgment creditor or attachment creditor. (Greenwood v. Brodhead, 8 Barb. 596, 597; Crock. on Sher. § 451; Free, on Exec. § 110; Handy v. Dobbins, 12 Johns. 220.) Under an execution which ran against both the firm property and the individual property of those summoned, which included Tooker & Irwin, the defendant might satisfy his writ out of the joint property of all, or the separate property of any one or more. (Story on Part. [7th ed.] § 260; Ex parte Ruffin, 6 Ves. 119, 126; 1 Lind, on Part. 515; Foster v. Barnes, 81 Penn. St. 377; Randolph v. Daly, 16 N. J. Eq. 313; Jones v. Clayton, 4 M. & S. 349; Coll. on Part. [5th Am. ed.] 818; Harris v. Jamieson, 5 T. R. 556; Abbott v. Smith, 2 W. Bl. 947; Code of Civ. Pro. § 1935.) The levy having been rightfully made upon the property of William T. Tooker and Thomas J. Irwin, the sale of February seventh was right and proper and the purchasers thereat obtained the whole title of the judgment debtors, Tooker & Irwin, and rightfully took possession of their purchases. (Free, on Exec. § 115 ; Crock. on Sher. §§ 490, 491; Catlin v. Jackson ex dem. Gratz, 8 Johns. 520; Menagh v. Whitwell, 52 N. Y. 146; Hull v. Carnley, 1 Kern. 501, 507.) The partners of a firm may transfer bona fide their property to a purchaser for value, and the purchaser takes it free from any lien of the firm’s de.bts. (Stanton v. Westover, 101 N. Y. 265, 267; Dimon v. Hazard, 32 id. 65; Sage v. Chollar, 21. Barb. 698; Reed v. McLanahan, 47 N. Y. Sup. 277; Loeschigk v. Addison, 3 Robt. 344; Field v. Hunt, 21 How. 463; Kirby v. Schoonmaker, 3 Barb. Ch. 46; Corey v. Long, 2 Sweeney, 495; Smith v. Howard, 20 How. 121.) Exercise of dominion over firm property by some member of the firm, in order to subject it to execution at the suit of a firm creditor is indispensable. (Fitzpatrick v. Flanagan, 106 U. S. 648, 654; Case v. Beauregard, 99 id. 119; S. C. 101 id. 688; Menagh v. Whitwell, 52 N. Y. 146; Dover v. Stauffer, 1 Pen. & Watts [Pa.] 198; Coover's Appeal, 29 Penn. St. 9; Rice v. Bernard, 20 Vt. 479; Appeal of York Co. Bk. 32 Penn. St. 446.) Possession was rightfully taken by the purchasers of the property sold February 7, 1879. (Phillips v. Cook, 24 Wend. 389; Schrugam v. Carter, 12 id. 131; Walsh v. Adams, 3 Den. 125; Waddell v. Cook, 2 Hill, 47; Berry v. Kelly, 4 Robt. 106; Smith v. Orsen, 42 N. Y. 132; Atkins v. Laxton, 77 id. 115; Reed v. McLanahan, 47 N. Y. Supr. Ct. 277; Staats v. Bristow, 73 N. Y. 264.) The purchasers having rightfully taken the property away, and plaintiffs not then having an execution, they not only cannot complain of the removal, but before recovery in this action they were bound to show that prop-of the judgment debtors was within defendant’s bailiwick, of which he had or might have had notice when their execution went into his hands. (Watson v. Brennan, 66 N. Y. 621; Wehle v. Conner, 69 id. 550.) Plaintiffs’ case can derive no benefit from the fact that the building—their interest in which was sold for $100—still remained in existence February eighteenth, and the safe which was sold for $27 had not been removed. (Wash, on Real Prop. [4th ed.] 148; Merry Wives of Windsor, act 2, scene 2; Pike v. Butler, 4 N. Y. 360.) The party in whose favor process issues may give instructions to the sheriff such as will not only excuse him from his general duty, but bind him. (Root v. Wagner, 30 N. Y. 9, 17; Mickies v. Hart, 1 Den. 548; Gorham v. Gale, 7 Cow. 739; Swaine v. Seaman, 9 Wall. 254, 275; Swinem v. Swart, 4 Lans. 267; Thompson v. Blanchard, 4 N. Y. 303, 309.)</p> <p>The second paragraph of the answer is bad, because it is neither a general denial nor a specific denial within the meaning of section 500 of the Code. (McEnroe v. Decker, 58 How. 250; Swinburne v. Stockwell, id. 312; Hammond v. Earle, 5 Abb. [N. C.] 105; Miller v. McCloskey, 9 id. 303; People v. Snyder, 41 id. 400; People v. Nor. R. R. Co. 53 Barb. 101.) As there was property more than sufficient to pay in full the judgment, at the time of the issue of the execution, on the premises which had been occupied by Tooker & Irwin, individually, had been sold under a judgment against another firm, the fact that the right, title and interest of Tooker & Irwin, in which, with Candee & Arnold, they were partners, did not prevent the sheriff from making this execution out of the property. (Menagh v. Whitwell, 52 N. Y. 147, 154, 193; Wilder v. Keeler, 3 Paige, 168; Payne v. Mathews, 6 id. 19; Kerby v. Schoonmaker, 3 Barb. Ch. 47; Ganson v. Lathrop, 25 id. 455; Wilson & Gibbs v. Conine, 2 Johns. 280.)</p>

the appellant nothing upon a claim presented for balance of salaries alleged to be due him as assignee of Catharine A. Poole and others, women employed in cleaning the State Hall, whose salaries had been reduced by. the Comptroller after the Senate and Assembly chambers were removed from the old to the new Capitol. The statute fixed the pay of women employed in cleaning State Hall at $2 per day as their salary.

This action was brought to recover damages for injuries alleged to have been caused by defendant’s negligence. The material facts are stated in the opinion. Between employer and employe ordinary care only is necessary, and, as in other cases, negligence is to be proved, and not presumed.

<p>Appeal from judgment of the General Term of the Supreme Court, in the fifth judicial department, in favor of plaintiffs, entered upon an order made April 23, 1885, which denied a motion for a new trial and directed judgment on a verdict.</p> <p>The nature of the action and the material facts are stated in the opinion.</p> <p>Defendant’s acts amounted to actual possession and occupation at the time the taxes were assessed and levied, and also at the time the bark was taken. (Thompson v. Burhans, 79 N. Y. 99, 100; Miller v. L. I. R. R. Co., 71 id. 383, 384.) The fact that Coleman mistook his remedy and assumed to own the title under the mortgage, because it was in form a quit-claim deed, cannot prejudice the rights of the defendant, who was then a powerless debtor in the hands of Coleman. (Otis v. Williams, 70 N. Y. 211.) Coleman had no more right to maintain that action than any other mortgagee would have to maintain a similar action under a mortgage drawn in the usual form. (Clark v. Angel, 17 N. Y. Week. Dig. 29; Pardee v. Treat, 82 N. Y. 385; Miller v. McGucken, 20 Week. Dig. 429; Dodd v. Neilson, 90 N. Y. 243; Bond v. Colkins, 18 N. Y. Week. Dig. 90; Grass v. Wellwood, 90 N. Y. 638; Horn v. Keteltas, 46 id. 605.) The quit-claim deeds from Coleman to the defendant, were in effect only satisfaction pieces made for the purpose of formally clearing up the record in the clerk’s, office. (Becker v. Howard, 47 How. 429; 66 N. Y. 5; Pardee v. Treat, 82 N. Y. 385; 4 Hun, 359; Carr v. Carr, 52 id. 251; Stoddard v. Whiting, 46 id. 627; Genet v. Davenport, 56 id. 676; Deckard v. Leonard, 6 Lans. 264; Payne v. Wilson, 74 N. Y. 348; Morris v. Budlong, 78 id. 543; Murray v. Walker, 31 id. 399; Ford v. Belmont, 35 N. Y. Sup. Ct. 135; Odell v. Montross, 68 N. Y. 499.) The plaintiffs not being bona fide purchasers under Coleman, the mistaken action of Coleman v. Shattuck cannot operate as an estoppel upon Bascom, who was not a party to it or privy in any manner. (Dawley v. Brown, 79 N. Y. 390; Murray v. Walker, 31 id. 401; Masten v. Olcutt, 101 id. 161; Adams v. Filer, 7 Wis. 306; Carney v. Emmons, 9 id. 114; 1 Buller’s Nisi Prius, 232; Chicago v. Robbins, 4 Wall. 657; Campbell v. Hall, 16 N. Y. 575; Barrett v. Leach, 25 Hun, 178; Sheridan v. Andrews, 49 N. Y. 478; Marsh v. Masterton, 23 Week. Dig. 239; Maybee v. Avery, 18 Johns. 352; 1 Smith’s Leading Cas., 8^0. n.; Power v. Lister, 23 N. Y. 533; Trim v. Marsh, 54 id. 599.) This action of replevin was improperly brought and cannot be maintained. (Barrett v. Warren, 3 Hill, 348; 1 Chitty’s Pleadings, 177; Stockwell v. Phelps, 34 N. Y. 363; Wohler v. B. & S. L. R. R. Co., 46 id. 686; Wood v. Lafayette, 68 id. 181, 190; Beals v. Stewart, 6 Lans. 408; Rich v. Baker, 3 Den. 79; Holmes v. Seeley, 19 Wend. 507; Houghtailing v. Houghtailing, 56 Barb. 194; Edwards v. Noyes, 65 N. Y. 125; Kellogg v. Vollentine, 21 How. 226; Rowland v. Fuller, How. App. Cas. 629; Healey v. Wheeler, 8 Hun, 569; De Mott v. Hagaman, 8 Cow. 220; Rich v. Baker, 3 Den. 79; Code of Civ. Pro., § 370.) One erroneous tax vitiates the whole sale. (Blackwell on Tax Titles, 160, 161 et seq.; Hayden v. Foster, 12 Pick. 402; In re Willis, 30 Hun, 13; Hall v Kellogg, 16 Mich. 12; People v. Hagadorn, 36 Hun, 610.) The evasion of the plain command of the statute in making a proper oath to the assesment-roll of 1856 is a fatal error. (Van Rensselaer v. Whitbeck, 3 Seld. 517; Westfall v. Preston, 49 N. Y. 349; People v. Fowler, 55 id. 252; Metcalf v. Messenger, 46 Barb. 325; Bellinger v. Gray, 51 N. Y. 610; Stewart v. Wallis, 30 Barb. 344; 2 Tr. App. 277-279; Boyer v. Boyer, U. S. Sup. Ct. [L. C. Pub. Co.] 1089; Atkins v. Kinnan, 20 Wend. 249; 3 Edm. Stat. at Large, 350, § 8.)</p> <p>The judgment record in the case of Coleman v. Shattuck has become irrevocable as against Coleman, his grantees or privies. (Smith v. Smith, 79 N. Y. 634; Bernet v. Couchman, 48 Barb. 73; Laws of 1862, chap. 485; Cagger v. Lansing, 64 N. Y. 417.) It is too late for defendant, as against Shattuck, to deny Coleman’s title. (Vorheis v. Olmstead, 3 Hun, 744.) Shattuck being in the actual possession of the land, and having the constructive possession under his title, could maintain this action, (Gardner v. Terry, 19 Barb. 317; Yeomans v. Francisco, 15 Week. Dig. 312; Samson v. Rose, 65 N. Y. 419.</p>

(Beported below, 39 Hun, 79.) This action was brought by plaintiffs as the Board of Health of the town of Brighton to restrain the defendant from discharging sewage upon and over lands of said town and to have such discharge adjudged to be a nuisance. The material facts are stated in the opinion. The action was properly brought in the names of the individual members of the board, with the corporate name of the hoard attached.

'Appeal from order of the General Term of the Supreme Court in the third judicial department, made November 16, 1386, which reversed an order of Special Term denying a motion on the part of defendant for a retaxation of costs and which granted said motion. This action was commenced in August, 1880; it was brought to recover damages for injuries alleged to have been caused by defendant’s negligence. The trial resulted in a verdict for plaintiff for $2,000.

The order appealed from imposed costs absolutely, and not conditionally, upon the appellant, and in this respect was a final determination from which an appeal could be taken to this court. (Bergen v. Carman, 79 N. Y. 146-151; Livingston v. Mildrum, 19 id. 440, 442; Mut. Life Ins. Co. v. Bowen, 47 Barb. 618-622; Fliess v. Buckley, 90 N. Y. 286, 291; Rule 64.)

The nature of the action and the material facts are stated in the opinion. The notes lacked no formalities required by law to make a valid obligation of a corporation. (Gottfried v. Miller, 104 U. S. 527.) If there was a by-law requiring the president to sign, and the company isssued its coupon notes without such a signature, and they came into the hands of a bona fide holder for value, the omission could successfully be urged as a defense. (Morawitz on Priv.

<p>A will and a codicil thereto are to be taken and construed together as one instrument, and although the will contains no words creating a trust, if from the two instruments it can be implied that it was the testator’s intent to establish a trust in the executors for objects declared and set forth in the will, it is sufficient.</p> <p>Where the duties imposed upon the executors are active and render the possession of the estate convenient and reasonably necessary, the executors will be deemed trustees for the performance of those duties to the same extent as though declared so to be in the most explicit terms.</p> <p>By the will of M., and a codicil, his executors were directed to pay his debts out of his estate as soon “ as shall by them be found convenient.” To each of his two sons he gave $10,000, to be paid to them in money or property on arriving at the age of thirty years. The testator also made provision for the support of his mother, an aunt and sister, and directed that so much as should be necessary for that purpose should be paid to them out of the property. He gave “ the use and income ” of all his real and personal property to his wife “ during her life,” or until after his death she marries, in which case he gave to her $10,0(10 in lieu of all dower, to be paid to her by his executors, who were in terms authorized to dispose of the property to pay this sum or (he legacies given to his sons, and the executors were authorized to change investments of the testator’s property or “ dispose of all or any part of it,” and invest the proceeds as specified. By the codicil the testator nominated and appointed the executors named in the will as his trustees “ for the purpose of carrying out any of its provisions." In an action to obtain a judicial construction of the will, held, that a valid trust was created to continue during the life or widowhood of the testator’s widow.</p> <p>After the provisions above stated the will contained this clause: “ Upon my wife’s decease the use and income of all my estate, subject to the above provisions, to my two sons, share and share alike; and upon the decease of my sons I give, bequeath and devise to their heirs, should both have heirs, their father’s portion only; * * * and in case of one having no heirs; then to the heirs of the other; * * * and if both shall have no heirs then as the law directs.” Held, that the provision was void, as it unlawfully suspended the power of alienation for a period beyond two lives; and that the residuary estate remaining after the death of the testator’s widow should be divided as in case of intestacy.</p>

(Eeported below, 38 Hun, 276.) The nature of the action and the material facts are stated in the opinion. The defendant was not, during the years ending November 1,1881, and November 1, 1882, doing business in the State of New York, within the meaning of the statute, and hence is not liable to taxation under the act of 1880 (Chap. 542), as amended. (Eq. Trust Co. Case, 96 N. Y. 387; People ex rel. Bk. of Montreal v. Com'rs of Taxes, 59 id. 40; Smyth v. Intern. L. Assn.

Wisner who, at her death, was owner of the real estate in question. The material portions of the will are as follows: u Second.

(Reported below, 41 Hun, 425.) The petitioner on failing to obtain the requisite consents of the landowners was not deprived of its franchise. Its failure put in • abeyance its right to proceed with the construction of its proposed road until the obstruction was removed. (In re B’klyn Steam Transit, 78 N. Y. 529-531; In re B. W. & N. R. R. Co. Case, 72 id. 245.) The act of 1875 (chap. 606) conforms to the requirements of the Constitution.

<p>OLEOMAEGABINE.</p> <p>Section 7 of Laws 1885, chapter 183 (an act to prevent deception in the sale of dairy products, etc.,) forbidding the manufacture or sale of articles or products in imitation or semblance of, or designed to take the place of natural butter or cheese is constitutional.</p> <p>To warrant a conviction, it is not necessary to show that the article sold was calculated to deceive the person who bought it in this instance. It is enough that it was an imitation and semblance of butter, and calculated to deceive any one who might buy it.</p> <p>The artificial coloring of oleomargarine for the mere purpose of making it resemble dairy butter is a violation of the statute.</p>

The nature of the action and the material facts stated in the complaint, appear in the opinion. The trust is void, because it is not limited “ during the continuance and until the termination of not more than two lives in being at the death of the testatrix ” and because it may suspend the absolute ownership of personal property for a longer period than during two lives.

The nature of the action and the material facts are stated in the opinion. The board of education and school trustees of the city of New York constitute an agency for the administration of public duty not pertaining to the corporate functions of the city, but administered in behalf of the people of the State, and the hoard is, therefore, independent, capable of making its own contracts, and liable to he called upon to respond to the liabilities which it incurs.

Appeal by the defendant Eucebia Fitzgerald from a judgment oh the General Term of the Supreme Court in the Fourth Department, of 11 January, 1887,… Held: under 6 & 7 Victoria, Ch. 12. We think it was properly held at the trial that the coroner of Chemung had jurisdiction to proceed under the statute to inquire into the cause of the death. For that purpose he was authorized to employ a surgeon or physician to make a post-mortem examination. Section 775, Code Grim. Proe.

The nature of the action and the material facts are stated in the opinion. The ten years statute of limitations, section 388 of the Code, does not apply to this case. (Miner v. Beekman, 50 N. Y. 338; Woodfalls L. and T. 229, 660; Platt on Leases, 734.) By reason of imperfect denials in the respondents’ answer the whole of plaintiffs’ case as made out by their complaint, stands admitted, and it was wholly unnecessary for them to offer any evidence upon the trial.

The claim was for personal injuries received by the claimant while in the employ of the State on the State boat on Lake Champlain. On May eighteenth, while so employed, he was engaged, under the directions of the captain of the boat, in digging and wheeling clay from a bank near the canal on to the boat. Wells, the captain of the boat, had loosened the overhanging earth, and while the claimant was under it, it fell and he was injured.

The nature of the action and the material facts are stated in the opinion. The fact that this seventeen months old infant was on this railroad track unattended is, of itself, such evidence of negligence on the part of his mother as to prevent a recovery. (Hartfield v. Roper, 21 Wend. 615.) That the plaintiff was non sui juris imposed no additional duty upon the defendant.

This action was brought by plaintiff, who claimed as assignee of Swezey & Dart, under an assignment for the benefit of creditors, to recover for the alleged conversion of a portion of the assigned property. Defendant justified under certain .attachments and executions against Swezey & Dart, issued to him as sheriff, claiming the assignment to be fraudulent and void as to creditors.

<p>The board of supervisors of the county of K., in whom was vested the power to fix the compensation of the district attorney, his assistants, clerks and officers, in August, 1877, fixed the salaries, and among them the salary of the chief clerk, at $8,000 per annum. In November, 1877, however, said board fixed the amount to be raised by taxation for the salaries in that office for the current fiscal year, at a sum considerably less than the aggregate of the salaries as fixed in August, 1877. The relator was appointed by the district attorney, whose term of office began January 1, 1878, chief clerk from that date, at a salary of $1,500, the salaries in the office having been scaled down to come within the appropriation. The relator accepted the appointment and continued in the office until August 1, 1881, receiving and accepting the salary so fixed, making no claim for additional compensation until after his employment had terminated. In an action to ■ recover the difference between the amount received and the amount of salary as fixed by the board, held, that the action of the board in November, 1877, plainly indicated an intention on its part to reduce the salaries, and authority was thus impliedly given to the incoming district attorney to make such arrangements with his appointees as would bring the aggregate within the sum to be raised; that it was fairly presumable that, by the voluntary acceptance and retention by the relator of his employment at the reduced salary, the board was led to omit adopting a formal resolution reducing the salary to that fixed by the district attorney; and that, therefore, plaintiff was not entitled to recover.</p>

The nature of the action and the material facts are stated in the opinion. The plaintiffs duly established on the trial title in themselves and were entitled to a decision finding and asserting such title in fee, and that they were entitled to the possession of the premises.

These were cross appeals from orders of the General Term of the Supreme Court in the fifth judicial department, made the first Tuesday of June, 1886, which affirmed orders of Special Term in proceedings by certiorari under the act (Chap. 269, Laws of 1880), to review the assessments and valuations of relator’s property in certain towns of Monroe county. The Special Term referred the matters, and on the coming in of the referee’s report reduced the assessments.

This action was brought to recover damages for injuries alleged to have been caused by defendant’s negligence in permitting a sidewalk upon one of its streets to become dangerous in consequence of an accumulation thereon of earth, snow and ice. The material facts are stated in the opinion. The defendant is only liable for some neglect or omission of duty on its part causing the injury.

<p>Appeal from judgmen of the General Term of the Supreme Court in the first judicial department, entered upon an order made March 5, 1887, which affirmed- a judgment in favor of plaintiff entered upon a verdict directed by the court and which affirmed an order denying a motion for a new trial.</p> <p>The nature of the action and the material facts are stated in the opinion.</p> <p>The defendant was not an officer of the county of New York and had the same right to deal with it as any private citizen. (People v. Raymond, 37 N. Y. 428, 429, 431; People v. Dunlap. 66 id. 162, 166.) The defendant then being a city officer, and not a county one, was under no obligation to the county, either statutory or otherwise. (Mayor, etc. v. Muzzy, 33 Mich. 61; Jackson v. N. Y. C. R. R. Co., 58 N. Y. 623 ; McDonald v. Mayor, etc., 32 Hun, 89 ; McAdam v. Mayor, etc., 36 id. 340 ; Roosevelt v. Draper, 23 N. Y. 318; Mullaly v. Mayor, etc., 3 Hun, 661; Smith v. City of Albany, 61 N. Y. 444.) The comptroller had power, in his discretion, to make the contract with the defendant for the negotiation of the bonds. (Laws of 1871, chap. 583, p, 1268 ; Sistare v. Best, 88 N. Y. 527, 534; People v. Van North, 64 Barb. 205 ; People v. Green, 2 T. & C. 62; Baird v. Mayor, etc. 96 N. Y. 567, 580.) The plaintiff cannot abandon the fraud and recover as on a contract for money had and received. (Ransom v. Wetmore, 39 Barb. 104; Whitcomb v. Hungerford, 42 id. 177; Salters v. Genins, 3 Bosw. 250; Place v. Minster, 65 N. Y. 89, 102; Ledwich v. McKim, 53 id. 307 ; Graves v. Waite, 59 id. 155 ; Segelken v. Meyer, 94 id. 473.) Defendant was not bound to know that the comptroller had no power to indorse the check to him; and in any event, the city (county) is estopped from disputing the regularity of the payment. (McDonald v. Mayor, etc., 68 N. Y. 23, 28, 29 ; Smith v. City of Newburgh, 77 id. 130, 137; Nelson v. Mayor, etc., 63 id. 535; Moore v. Mayor, etc., 73 id. 238, 246, 247; Schier v. City of Buffalo, 35 Hun, 564.)</p> <p>Irrespective of the validity or invalidity of the agreement between Connolly and the defendant, the payment of the check was illegal and void, and he obtained no title to it by such payment. Proof establishing the illegal payment justified the allegations of fraud in the complaint. (Sup'rs Richmond Co. v. Ellis, 59 N. Y. 620 ; Same v. Van Clief 1 Hun, 454; People v. Field, 58 N. Y. 504, 505; Laws of 1857, chap. 590, § 6 ; Laws of 1870, chap. 190, § 6; People v. Ingersoll, 58 N. Y. 27; McDonald v. Mayor, etc., 68 id. 23.) The pretended agreement between the defendant and Connolly was made illegal and void by statutes prohibiting such contracts. (People v. Raymond, 37 N. Y. 428; Laws of 1870, chap. 137, § 115 ; Roosevelt v. Draper, 23 N. Y. 318 ; Mullally v. Mayor, etc., 3 Hun, 661; 62 N. Y. 636, McAdam v. Mayor, etc., 36 Hun, 340; 1 R. S. [7th ed.] 858.) The resolution of the board of apportionment does not validate the comptroller’s .employment of the defendant. (Laws of 1870, chap. 137, § 101; Laws of 1871, chap. 574, § 8.) The pretended contract between the defendant and Connolly was illegal and void at common law. (Smith v. Albany, 61 N. Y. 44; Mullally v. Mayor, etc., supra; Collier v. Munn, 41 N. Y. 15.) The defendant having moved for a nonsuit, and made no request to go to the jury, cannot now claim that there were any questions of fact to be passed upon by the jury. (Bridge v. Pierson, 66 Barb. 514; Trautz v. Ireland, id. 386 ; Ormes v. Dauchy, 82 N. Y. 443 ; Dillon v. Cockcroft, 90 id. 649.) If the evidence would have warranted a verdict for the plaintiffs, the direction of a verdict was proper. (McCall v. Sun Mut. Ins. Co., 66 N. Y. 517.)</p>

This action was brought to foreclose a mortgage executed by defendant, the Father Matthew Benefit Society Mo. 3, of Tuckahoe, M.Y. The executor of John McCloskey, late Archbishop of Mew York, was made defendant and the estate was sought to be and was charged by the judgment for any deficiency upon a covenant in a deed to liis testator of the mortgaged premises, by the terms of which he assumed and agreed to pay the mortgage.

<p>It seems that, as the State can only be sued by its own consent and for liabilities which it chooses to assume, whoever presents a claim against it must- show some statute, giving consent on its part to be answerable before its own tribunals for such a claim or for those of a class to which it belongs.</p> <p>It seems, also, that the provision of the act of 1876 (chap. 444, Laws of 1876), constituting the Board of Audit which gave that Board authority to hear " all private claims and accounts,” did not in any manner cnange or enlarge the liability of the State.</p> <p>The claimant was navigating a canal boat on the Erie canal. He went to the collector’s office at S. to obtain a clearance, the boat meantime going on. Going along the berme bank of the canal to rejoin his boat he came to a bridge, the abutments of which he could only pass by climbing up one side and descending the other To enable this to be done the State had provided irons, fastened one above the other, to the stones of the abutment. The stone to which the upper iron was attached was loose and had been for at least a year, and when claimant took hold of the iron the stone fell, throwing him to the ground and severely injuring him. Upon a claim presented against the State under the act of 1870 ',chap. 321 Laws of 1870), by which the State assumed liability for damages sustained by individuáis “ from the canals of the State or from their use and management, or resulting or arising from the negligence or conduct of any officer having charge thereof, ” excepting “ claims arising from damages.resulting from the navigation of the canals. ” Held, that the act was broad enough to include the injury complained of; and that it did not result from “ navigation of the canals ” within the meaning of the exception.</p>

<p>Appeal from judgment of the General Term of the Supreme Court in the third judicial department, entered upon an order made February 3, 1886, which affirmed a judgment in favor of plaintiff entered upon a verdict.</p> <p>The nature of the action and the material facts are stated in the opinion.</p> <p>Where credit is given, 01 where a special agreement for a particular mode of payment, exists, or a particular time for such payment is provided, no lien exists. (Trist v. Porsson, 1 Hilt. 292, 297; Dunham v. Pelter, 1 Daly, 112, 117, 118; Morgan v. Congdon, 4 N. Y. 552; De Varme v. Reinhad, 9 Daly, 406 ; Fielding v. Mills, 2 Bosw. 489; 3 Pars, on Cont. 348.) This was not an entire and single contract. Each delivery was a separate contract by itself. (McFarland v. Wheeler, 26 Wend. 477; Steinam v. Wilkins, 42 Am. Dec. 254, 258; Schmidt v. Blood, 9 Wend. 268.) There is no lien for the work done on the goods on hand as against defendants for the reason that when they levied on the goods and offered to pay such amount the right to retain them was placed on another and different ground. In such a case the lien for the true amount was waived. (La Motte v. Arthur, 4 E. D. Smith, 46; Maynard v. Anderson, 54 N. Y. 641; Salters v. Everett, 20 Wend. 267; Everett v. Coffin, 6 id. 608.) On general principles, and unless there was an agreement to the contrary, the common law lien for the work delivered became lost by surrendering possession of the property. (Grinnel v. Suydam, 3 Sandf. 132; Dunham v, Pelter, 1 Daly, 112; Grinnel v. Cook, 3 Hilt. 492; Higgins v. Murray, 73 N. Y. 255 ; Robinson v. Frost, 14 Barb. 536.)</p> <p>The plaintiff having performed labor and furnished materials in laundering goods for Mr. Hoexter, had a common law lien thereon for such labor and materials, unless there was some special agreement for credit or a future time of payment beyond completion of contract so inconsistent with such lien that it destroyed in. (2 Kent’s Conn. 635; Morton v. Congdon, 4 N. Y. 552.) Partial payments, partial deliveries, and the fixed price per dozen did not affect or impair the lien. (Blake v. Nicholson, 3 M. & S. 167; Chase v Westmore, 5 id. 180.) But for the agreement to make monthly payments, or advances on account, the plaintiff could have recovered nothing until the completion of the contract; and the fact that the agreed price was by the dozen instead of a gross sum did not qualify or change the character of the contract. (Cunningham v. Jones, 20 N. Y. 486.) The defendants stand in no better position than TIoexter, and cannot be permitted to use any agreement, or to so construe it as to destroy the plaintiff’s lien, because Hoexter failed and refused to carry out such agreement on his part. (Mount v. Williams, 11 Wend. 77.) Ho usage or rule of the parties was established from which it can be inferred that the plaintiff intended to waive its right to a lien, because the transaction in question was the first one between the parties. (Overton on Liens, 52.) In the case at bar, there was but one bargain, and all the goods were laundered under this one bargain, and plaintiff, therefore, had a lien upon all the goods in his jiossession at the time of the levy for the balance due. (Morgan v. Congdon, 4 N. Y. 552; Blake v. Nicholson, 3 M. & S. 168; Chase v. Westmore, 5 id. 180; Schmidt v Blood, 9 Wend. 268.) There was no subsequent waiver or extinguishment of the lien. The lien having once attached, no waiver could be presumed while the lienee held possession. (4 Kent’s Com. 152; 2 Story’s Eq. Jur., § 1226; Horncastle v. Farren, 3 B. & Ald. 498, 356; The Kimball, 3 Wall. 37 ; Myers v. Uplegrove, 3 How. Pr. [N. S.] 316; Becker v. Brown, 61 N. Y. 317; Kortright v. Cady, 21 id. 343; Tathill v. Morris, 81 id. 94.) The tender was not made in time to protect the defendants. (Wheeler v. McNarland, 10 Wend. 318; Ray v. Harcourt, 19 id. 495; Barker v, Bennington, 14 N. Y. 270.) The tender was not made by the proper party. The owner of the goods held the equity of redemption, and was the only person who could redeem them. (Harris v. Jew, 66 Barb. 232 ; Code of Civ. Pro., § 1412.)</p>

(Reported below, 37 Hun, 57.) This action was broght in 1873 to recover penalties alleged to have been incurred under the act (Chap. 163, Laws of 1870), by defendant in discounting paper at a greater rate ot interest than seven per cent. It is reported upon a former appeal in 68 Hew York, 396. The judgment upon the report of the referee was entered in 1884.

The alleged acts causing injury were done in and prior to 186L The claim, was presented in 1871. The particulars of the claim, as well as the material facts, are stated in the opinion, The State was guilty of culpable negligence, such as would render an individual liable, under similar circumstances.

The nature of the claim is set forth in the opinion. The act of 1830 has no application to the case at bar. (Coster v. Mayor, etc., 43 N. Y. 399, 415.) The claim is a valid one and should be heard by the Board of Claims, and is unaffected by any legislation prior to the acts of 1866 and 1870. (People ex rel.

Gleason, as assignee for the benefit of creditors of Seth H. White, to pay the petitioners out of the funds in his hands the sum of $877.27; the balance unpaid of a fund of $3,000 which was placed by them in- the hands of the assignor January 3, 1883, to be invested by him for their benefit in a bond and mortgage to be given by J. P. Gould. The further facts appear in the opinion. The petitioners must trace their property into the hands of the assignee in order to recover it.

The nature of the action and the material facts are stated in the complaint. The defendant was bound under the lease to proceed continuously in working the mine and during each year to mine at least 100,000 tons. (Curtiss v. Howell, 39 N. Y. 211; Sharp v. Wright, 28 Beav. 150.) Mo circumstance of unprofitableness of working will excuse the non-performance of this obligation.

The substance of the complaint is set forth in the opinion. The general jurisdiction of a court of equity to reform or set aside a contract on the ground of mistake includes executed as well as executory contracts. The consummation of the transaction in ignorance of the mistake, and without loches on the part of the party injured, gives the other party no immunity from making recompense, nor does it deprive the court of the power to remedy the injustice.

(Reported below, 33 Hun, 501.) The nature of the action and the material facts are stated in the opinion. Authority to one to act for another need not be conferred in words. It may be inferred from the course of business and employment, and from the fact that similar transactions of the assumed agent have been acquiesced m, or repeatedly recognized, by the principal, as done by his authority.

The nature of the action and the material facts are stated in the opinion. When a person contracts as the agent of another, and the fact of his agency is known to the person with whom he contracts, the principal alone, and not the agent is responsible.

This action was brought to recover damages for personal injuries received by plaintiff while a passenger on one of defendant’s cars, and alleged to have been caused by defendant’s negligence. The facts, so far as material to the questions discussed, are stated in the opinion. The court erred in allowing the witness McElroy, who was not an expert, to testify as to the condition of plaintiff’s arm and as to what she said about it.

Term of the Superior Oourt of the city of ¡New York, made July 2, 1886, which affirmed an order of a Special Term denying a motion for a wmt of mandamus herein. The nature oi the writ asked for and the material facts are stated m the opinion. The relator has a lawful right to pay this tax unless the sale was valid, and the notice necessary to cut off the right of redemption was served as required by law. (2 Desty on Tax. 890; Bensel v. Gray, 44 Supr.

The facts appear sufficiently in the opinion. The determination of the comptroller was justified. (Laws of 1855, chapter 427, § 83.) The affidavit of the purchaser could not stand as a substitute for common law evidence of. the irregularity claimed to exist. (People ex rel. Vogler v. Walsh, 87 N. Y. 485, 486; People ex rel. Wright v. Chapin, 4 East.

' Appeal from order of the General Term of the Superior Court of the city of Yew York, made December 28, 1886, which affirmed an order of Special Term granted on motion of the plaintiff, awarding and settling the issues herein to be tried by a jury. The order was made, as stated therein, “ on the ground that a trial by jury is a matter of right in this action.” The nature of the action is stated in the opinion.

<p>Appeal from judgment of the General Term of the Superior Court of the city of ¡New York, entered upon an order made January 9, 1885, which affirmed a judgment in favor of plaintiff, entered upon a decision of the court on trial without a jury.</p> <p>The nature of the action and the material facts are stated in the opinion.</p> <p>The liability created by the bond in suit, did not refer to any indemnity for any trespass created by the sheriff in holding on to the property for the talcing of which he held no process at the time of the conversion. (Cloris v. Woodruff18 Hun, 419; 83 H. Y. 518, 522; Griffiths v. Hardenberg, 4 id. 464; Ives v. Jones, 40 Am. Dec. 421, 423, 426, 427; Chapman v. Douglass, 5 Daly, 244, 252.) Even if the sheriff was requested to hold on to the property after the process was vacated, and even if such request was made by the attorneys for the plaintiffs in the attachment suit, that could not bind the sureties on this bond. (Clark v. Woodruff, 83 N. Y. 518.) It must be made to appear that the recovery in the action against the sheriff was for the identical taking under which the bond was given, and if that does not appear distinctly by the record it can be proven by paroi that the recovery was not for such taking. (Willett v. Kipp, 12 Hun, 474, 476, 477.) Evidence in aid of the record was allowable. (McKnight v. Devlin, 52 N. Y. 399; Doty v. Brown, 4 id. 71; Wood v. Jackson, 8 Wend. 9; Deer v. Reed, 37 Hun, 594; Agan v. Hey, 30 id. 591; Banfield v. Haeger, 7 Abb. [N. C.] 318; Leavitt v. Woolcott, 95 N. Y. 212, 219, 220, 221, 222.) The wrongful taking as well as conversion, may be united in the same complaint. (Code, § 484.) A bond must be construed strictly in favor of the obligors, and a construction given which will relieve them from liability, rather than hold them, and in this connection the surrounding circumstances may be examined to see what these defendants agreed to hold themselves liable for. (Clark v. Woodruff, 83 N. Y. 522; Griffiths v. Hardenberg, 41 id. 464; Blossom v. Griffin, 13 id. 569.) The judgment in the Superior Court action was clearly right, and the subsequent demand on the twenty-first day of December constituted a conversion within the terms of the complaint in that action. (Roberts v. Burdell, 52 N. Y. 646; Gillett v. Roberts, 57 id. 33; Jessup v. Miller, 2 Abb. Ct. App. Dec. 449; Obewarth v. McLean, 7 Daly, 70) Where an attachment is issued and is subsequently vacated on the merits, the attaching creditors are not deprived thereby of their justification for a seizure under the same. Day v Bach, 13 Week. Dig. 296, affirming 11 id. 438.)</p> <p>Galinger’s cause of action was complete when the sheriff took his goods under an attachment against Mrs. Briggs and no demand was necessary. (Hicks v. Cleveland, 48 N. Y. 84; Kluender v. Lynch, 2 Abb. App. Dec. 538 ; Kuhlman v. Orser, 5 Duer, 242.) It is immaterial whether a second demand was made or not. (Livermore v. Northrup, 44 N. Y. 107; Snebley v. Conner, 7 W. Dig. 93; Coddington v. Carnley, 2 Hilt. 528.) Parol evidence cannot be admitted to countervail the record in the Galinger case. (Manny v. Harris, 2 Johns. 24; Royce v. Burt, 42 Barb. 655; Castle v. Noyes, 14 N. Y. 329; Union Bk. v. Kupper,. 63 id. 617; Beard v. Yates, 1 T. & C. 21; Nickett v. Armstrong, 6 W. Dig. 73; Campbell v. Butts, 3 N. Y. 173; Davis v. Tallcott, 12 id. 184; Kerr v. Hayes, 35 id. 531 ; Denackle v. Wiles, 11 id. 420; White v. Madison, 26 id. 117; Wood v. Jackson, 8 Wend. 1; Lowe v. Payne, 4 N. Y. 247.) Even though all that Galinger swore to upon either trial were conceded, yet his alleged second demand was insufficient, as it appears that the order vacating the attachment had not been entered with the clerk when exhibited, and because no certified or other copy was ever served upon the sheriff. (Whitney v. Belden, 4 Paige, 140; Bronner v. Lewis, 17 Hun, 439 ; Smith v Dodd, 3 E. D. S. 215 ; Sage v. Mosher, 17 How, 367, 371; 2 R. S. 285, §§ 56, 57; 3 id. [6th ed.] 447: Paton v. Westervelt, 2 Duer, 363; Star F. I. Co. v. Godit, 2 J. & S. 359 ; Plato v. Kelly, 16 Abb. 188; Galt v. Finch, 24 How. 193; Watson on Sher, 108; Taylor v. Brander, 1 Esp. 45 ; Danforth v. Carter, 4 Ia. 230; Danforth v. Ruppert, 11 id. 547; Wheeler v Nichols, 32 Me. 233; Drake on Attachment, §§ 427, 428.) Further than this, as they had, under our objection and exception, sought to impeach the record, plaintiff had the right to show the falsity of the defendants immaterial evidence and our good faith toward the plaintiff. ( Woodgate v. Fleet, 44 N Y. 1.) The sheriff was not bound to deliver the property to Galinger, even though the making of the alleged second demand should be granted. (Frankel v. Elias, 50 How. 74; Lambert v. Converse, 22 id. 265.) Defendants ratified the sheriff’s action. (Day v. Bach, 90 N. Y. 52; Belloris v. Freeborn, 63 id. 383 ; Brewster v. Hatch, 41 Supr. Ct. 63; Shace v. Herman, 8 Wend. 452; Webb v. Pond, 19 id. 423 ; Kohler v. Matlage, 72 id. 259; Jarvis v. Small, 40 Barb. 449 , Bancroft v. Winspear, 44 id. 209; Castle v. Lewis, 78 N. Y. 131; Clark v. Woodruff, 83 id. 518; Oestrichs v. Gilbert, 9 Hun, 242; Code, § 1427; Given v. Driggs, 1 Cai. 450; Howell v. Christie, 3 Lans. 238; Chapin v. Thompson, 4 Hun, 779; Binsse v. Wood, 37 N. Y. 526; Aberdeen v. Blackman, 6 Hill, 324; Beers v. Pinney, 12 Wend. 309; Trustees v. Galatian, 4 Cow. 340.)</p>

These are cross appeals from judgment of the General Term of the Supreme Court in the first judicial department, entered upon an order made January 25,1884, which affirmed a judgment in favor of plaintiff entered upon a decision of the court, and affirmed various orders. (Reported below, 38 Hun, 950.) The nature of the action and the facts, so far as material, are stated in the complaint.

The plaintiff commenced this action on hehalf of himself and all other creditors of the Erie Railway Company similarly situated, and made parties defendants the Hew York, Lake Erie and Western Railroad Company, the Farmers’ Loan and Trust Company and Hugh J. Jewett, receiver of the Erie Railway Company.

(Reported below, 34 Hun, 478.) This action was brought to recover a balance alleged to be due for certain lumber sold and delivered by plaintiffs to defendants. The material facts are stated in the opinion.

It is reported on a former appeal in 89 New York, 418. This action was brought to recover the amount of a draft drawn upon defendant.

The nature of the action and the material facts are stated in the opinion. A fair interpretation imports that the goods should be gotten promptly without the port of shipment, and that they should become extra European before the obligation of promptness could be dispensed with. (Snyder v. Ins. Co., 95 N. Y. 196; De Longuemere v. Ins. Co., 10 Johns. 125; Mey v. Ins.

(Reported below, sub nomine, Syracuse S'vgs. JBh. v, Porter, 36 Hun, 168.) This was an action for foreclosure. The defendants, appellants, claimed any surplus moneys arising on sale to be applied on junior mortgages executed to them by Cornelia H. Burton. The facts, so far as material, are stated in the opinion. The instrument in question does not create a valid express trust under the statute of uses and trusts. (Syr.

Plaintiff claimed damages for the alleged unlawful appropriation of his property and property rights by the city through its department of docks.

The nature of the action and the material facts are stated in the opinion. Payment was a condition precedent to the continuance of the policy, and no act of God or mere accident, however controlling, could continue the policy in force after the pay day without payment. (Howell v. Knick. Life Ins. Co., 44 N. Y. 276; Wheeler v. Conn. Mut. Ins. Co., 82 id. 543.) Courts of equity will not generally relieve against forfeiture.

This action was brought by plaintiff, as sole residuary legatee under the will of Sarah A. Quinn, to set aside, on the ground of fraud, an assignment executed by an administrator, with the will annexed, to defendant Dicks, of a claim in favor of the testator’s estate, against the estate of Thorn Walling, deceased. The facts, so far as material to the questions discussed, are stated in the opinion. The residuary legatee is not bound to proceed against the administrator.

The material facts are stated in the opinion. The fact that the defendant resided on the premises with her husband in no way rendered her liable for the rent. (Shouler on Dom. Relations, 54; Gauley v. Troy City Nat. Bk., 98 N. Y. 487; Smith v. Fellows, 41 Supr. Ct.

(Reported . below, 40 Hun, 61.) The facts, so far as material, are stated in the opinion. Section 1814 of the Code of Civil Procedure made it expressly obligatory upon plaintiff to bring this action in his representative capacity. (Spencer v. Strait, 23 N. Y. Week. Dig. 458, 463 ; Thompson v. Whitmarsh, 1 East.

entered on a decision of one of the judges of said court on trial without a jury. This action was upon an undertaking executed by the defendants, the substance of which as well as the material facts are set forth in the opinion. Defendant is estopped from raising any question as to the invalidity of the undertaking, the answer not having raised the question.

<p>Appeal from judgment of the General Term of the Supreme Court in the third judicial department, entered upon an order made May 4, 1886, the nature of which order, of the judgment below and of the action, and the material facts, are set forth in the opinion.</p> <p>The action was treated -on the trial as one solely for the purpose of construing the instrument under which the defendants claimed the premises .and its effect upon the mortgage, and having been tried in the court below upon the merits without any exceptions on the part of the defendants, it will be so considered on appeal. (Brundage v. Domestic & F. Mis. Soc., 60 Barb. 213 ; Barnard v. Onderdonk, 98 N. Y. 158-163 ; Keeler v. Keeler, 102 id. 80; Jordan v. Van Epps, 85 id. 436; Hynes v. McDermott, 82 id. 41-48; Osgood v. Toole, 60 id. 475; Devyr v. Schaefer, 55 id. 446 ; Cole v. Malcomb, 66 id. 363.) The deed is inoperative, and the trust ceased when Philipena died during the lifetime of Jacob Reinheimer. (R. S. [Bank’s 7th ed.] 2183, § 67 ; Quin v. Skinner, 49 Barb. 128.) This is not one of the trusts authorized by that statute. It does not come under either of the subdivisions. (R. S. [Bank’s 7th ed.] 2182, §§ 49, 55, 58 ; Jarvis v. Babcock, 5 Barb. 139; Hotchkiss v. Elting, 36 id. 38 : Verdin v. Slocum, 71 N. Y. 345.) The purposes of the power having ceased to exist, the power had also ceased, and the premises reverted to the grantor without any conveyance. (Quin v. Skinner, 49 Barb. 128-133; Hawley v. James, 5 Paige, 318-457; Sharpstern v. Tillon, 3 Cow. 660; Hutchins v. Baldwin, 7 Bosw. 241.)</p> <p>The grant being to the “ use and behoof of Philipena Winegarth,” no estate, legal or equitable, vested in the trustee. (3 R. S. [7th ed.] 2180, §§ 47, 49.) The creation of contingent remainders, continuing both as to the person and estate limited, to vest in the future, limited upon a life estate, is authorized by the Revised Statutes. (3 R. S. [7th ed.] 2176, §§ 13, 26, 28, 30.) This construction of the ante-nupUal agreement, and the grant made in execution of it. is in strict accord with the rule in equity as to the construction of such agreements. (Story’s Eq. Jur., §§ 983, 984, 991, 992.</p>

<p>It is lawful for an insolvent member of a firm to devote his individual property to the payment of firm debts or to any debt owing by him to his partners to the exclusion of his individual creditors, and no inference of fraud can legally he derived from such disposition.</p> <p>The same rules should be applied in the construction of assignments for the benefit of creditors as are applicable to the interpretation of. other contracts, they are to he fairly and reasonably construed, with a view of carrying out the intent of the parties making them.</p> <p>Where, therefore, an interpretation maybe given to the assignment, consistent with innocence and the general rules of law, it should he given in preference to one which would impute a fraudulent intent to the assignor, or defeat the general purpose and intent of the conveyance , and where authority to do an act is conferred in general terms, it will he deemed to he and to have been intended to be exercised within the limits prescribed by la-w.</p> <p>The members of a firm executed an assignment for the benefit of credi tors of all their property, which provided that after the payment of the copartnership debts in the order specified, any residue should he applied to the payment of the individual and private debts of the assignors or either of them. If the remainder should prove insufficient for that purpose, then the same was directed to he applied pro rata to the payment of said debts In an action brought by a firm creditor to set aside the assignment on the ground of fraud, it appeared that one</p> <p>0 member of the firm owned individual assets of the value of $30, the other of the value of $10, their individual indebtedness was also unequal in amount. No fraud, m fact, was shown, but it was sought to be inferred from the provision m regard to the payment of individual debts m connection with the evidence showing inequality m individual assets and indebtedness Held, that no such inference cohld properly he drawn, that no authority was given to the assignee by either member of the firm, or could nroperly bo inferred to satisfy the individua! debts of the other from the combined individual property; but that a fair construction of the instrument was that after payment ;of firm debts, if there was a surplus, the share of each partner therein should he applied in payment of his individual debts that while the instrument was necessarily the joint act- of the members of the firm, so far as their joint property was concerned, it was the Individual act of each when dealing with his individual property, and the language used should be construed as referring to and expressing only their individual wishes with reference to their individual property and liabilities</p> <p>Also, held., that the provision complained of could not, in any event, have been intended to defraud the creditors of the firm, and until aggrieved plaintiff had no cause of action</p>

Tiies it are appeals from various orders and portions of orders of the General Term of the Supreme Court in the first judicial department made December 31, 1886. (Reported below, 42 Hun, 592.) The nature of the orders and of the action and the material facts, are set forth in the opinion. The De Grauw judgment was binding only on personal property and could not be enforced against the proceeds of the realty now in question.

This action was brought originally by Thomas Colrick, the present plaintiff’s intestate, against defendants as administrators of Richard G. Swinburne, deceased.

This action was upon a judgment, the nature of which and the material facts are stated in the opinion. The fact that the original claim has been reduced to judgment, does not merge it in the judgment. The judgment is not a new debt. (Clark v. Rowling, 3 N. Y. 216; Monroe v. Upton, 50 id. 598; Dresser v. Brooks, 3 Barb. 429; In re Brown, 3 Nat. B’k Reg. 145 ; In re Stansfield, 16 id. 268 ; Fox v. Woodruff, 9 Barb. 498; In re Van Buren, 19 Nat.

The nature of the application and the material facts are stated in the opinion. A surrogate’s decree is conclusive only as to the matters submitted to him for adjudication, and the appellant was entitled to a further accounting as to matters not embraced therein. (Pres't, etc., Bk. of P. v. Hasbrouck, 6 N. Y. 221, 222; Code, §§ 2689, 2690, 2742, 2814, 2819.) The appellant was the proper party to move for such an accounting.

The nature of the action is set forth in the opinion. The trial of the issues raised by the complaint and answer do not involve the examination of a “ long account ” within the meaning of section 1013 of the Code. (Camp v. Ingersoll, 86 N. Y. 433; Van Rensselaer v. Jewett, 6 Hill, 373; McDonald v. Stevens, 9 Hun, 28.) A case cannot be referred, even though the trial should require an examination of a long account, if that account is not the immediate object of the suit.

This action was brought- to recover damages sustained by plaintiff when a passenger on one of defendant’s cars, alleged to have been caused by the unlawful acts of defendant’s employes. The material facts are stated in the opinion. The mere fact that there is no seat does not justify a passenger on a railway train in selecting any portion of the train, irrespective of the danger, and irrespective of the convenience of other passengers.

The order is appealableto this court. (Code, § 190, subd. 2.) The word “ mandate,” used in the act of 1886, was not intended to cover mesne, hut-only final process. (Washauer v. Webb, 10 Civ. Pro. 169, 170.) The doctrine of noseitur a sociis applies here. (Chapman v. Forsyth, 2 How. [U. S.] 202, 208; 77 N. Y. 430; 24 Hun, 253; 58 N. Y. 475 ; 31 id. 255 ; 17 Wend, 543; McGaffin v. City of Cohoes, 74 N. Y. 387, 388; Aikin v. Wasson, 24 id. 482; Chagaray v. Jenkins, 3 Sandf.

<p>Under the provision of the act of 1877 (chap. 268, Laws of 1877), in reference to the sale of lands for unpaid taxes in the county of Queens, as amended in 1878 (chap. 226, Laws of 18 ¡8), where the county treasurer strikes off lands to a town, as directed by said act, in case there are no bids foi the same, his fees become simply matter of account, “a cuarge against said town," to be audited by the town board the same as other claims against the town (chap. 305, Laws of 1840, chap. 490, Laws of 1847.) Said officer has no right, without auditor direction, to deduct his fees from funds in his hands belonging to the town.</p> <p>Where it appeared that said county treasurer had been in the habit of paying himself the fees allowed by law upon such sale out of the trust funds of the town in his possession without previous audit; that upon a sale he had struck off a large number of lots to a town, and that said officer claimed the right thus to satisfy his claim. Held, that an action was maintainable under the act of 1881 (chap. 531, Laws of 1881), by a taxpayer of the town to restrain such illegal action.</p>

The nature of the action and the material facts are stated in the opinion. Plaintiff’s only right to subrogation was founded upon the usurious mortgage. (Baldwin v. Moffatt, 94 N. Y. 82, 85.) Said usurious mortgage cannot be the foundation of a valid claim. (Dung v. Parker, 52 N. Y. 500.) One who is only a volunteer cannot invoice the aid of subrogation.

This action was upon a policy of fire insurance, the substance of which,- as well as the material facts, are stated in the opinion. The policy in suit was never legally canceled, as the pro rata unearned premium had never been actually paid or tendered to the assured prior to the occurrence of the loss. (White v. Conn. Ins. Co., 120 Mass. 330; Bennett v. Md. Fire Ins. Co., 14 Blatchf. 422; Hathorn v. Germania Ins.

This action was brought to recover a balance alleged to be due plaintiff from defendant on its exchange account for December 19, 1882. The material facts are stated in the opinion.

The attorney for the parties stipulated in writing, during the progress of the reference, that the compensation of the referee should be “ for every hearing heretofore had or hereafter to be had * * * the sum of $20 per day.” The facts material to the question presented are stated in the opinion. The referee was not entitled to compensation for days when no other proceeding was had before him, except the asking for and obtaining an adjournment. (Schultz v. Whitney, 17 How.

These are cross appeals irom an oroer of the General Term hf the Supreme Court in the first judicial department, made December 31,1886, which modified, and affirmed as modified, !an order directing the sale of certain real estate belonging to William It. and Andrew Hynes, infants, to pay debts. The indebtedness in dispute was a claim of John L. Brower ¡for compensation as attorney in prosecuting certain ejectment suits to recover possession of the infants’ real estate.

issues to be tried by jury. (Reported below, 43 Hun, 458.) This action was brought by Brinckerhoff, the original plaintiff, in his own behalf as stockholder of the Fishkill Rational Bank, and on behalf of the other stockholders, against the defendants, the directors of said bank, to call them to account for the manner in which they had discharged their duties.

The nature of the action and the material facts are stated in the opinion. The assessment should have been against the executors, naming them as trustees and executors of estate of Thomas Poole, deceased, otherwise it was void. (Trowbridge v. Horan, 78 N. Y 439 ; 2 R. S., 989, §§ 1, 2, 3 [7th ed.] ; Chapman v. City of Brooklyn, 40 N. Y. 372 ; Crook v. Andrews, id. 547; Nat.

• Appeal from order of the General Term of the Supreme Oourt in the third judicial department, made Hay 4, 1886, which affirmed a decree of the surrogate of the county of Sullivan, directing the sale of certain real estate of which. John P. Dodge died seized, for the payment of a claim which was by said decree established as due from the estate of the decedent. (Beported below, 40 Hun, 443.) The facts, so far as material, are stated in the opinion.

<p>In an action to recover damages for injuries alleged to have been caused' by defendants’ negligence, it appeared that defendants' were engaged in the manufacture of articles from wood. The lumber used was planed on the first floor of their establishment and then passed up through an opening to the floor above. This opening was in a passageway where those employed on the second floor passed back and forth in the performance of their work; when not In use, it was closed by a heavy trap door, Plaintiff, an employe of the defendants, was going along the passage-way in the performance of his work, when the trap door was suddenly raised from below by a woikman in the planing room, plaintiff fell through the opening and was injured, Plaintiff had been in defendants’ employ foi about twenty-two months and was fully.informed as to the location and use of the trapdoor and the manner of its construction Defendants had given instructions that the trap-door should not be opened from below, and the employe who opened it had been so instructed by the foreman. Held, that the action was not maintainable, as the injury was caused by the negligence of a co-employe; that the location of the trap-door in the passage way was not per se a wrongful act, that defendants had a right to place it there and were not bound to change the arrangement to secure greater safety to their employes, and that plaintiff took the risk of the obvious dangers connected with his employment.</p> <p>It seems if the trap door had not been open to observation, or if its existence had not been known to those whose duty required them to use the passage-way, or if defendants had omitted to give proper instructions to those employed in the planing room, a different question would have been presented.</p>

The nature of the action and the material facts are stated in the opinion. The alleged executory agreement set forth in the complaint, being by paroi, was void by the statute of frauds.