Volume 106 — New York Reports

These were cross appeals from a judgment of the General Term of the Superior Court, entered upon an order made December 16, 1886, which affirmed a judgment in favor of plaintiff against defendant, the Independent Steamboat Company, and against plaintiff in favor of the other defendants, entered upon a decision of the court on trial at Special Term. The nature of the action and the material facts are stated in the opinion.

This action was brought to restrain an alleged infringement upon the ferry franchises of the city of New York by defendant, the New Jersey Steamboat Navigation Company, in running a ferry between said city and Staten Island.

(Reported below, 34 Hun, 534.) The action was brought against the members of the firm of Kidder, Peabody & Co., Baring Brothers & Co. and John B. Plobby, Sons & Co. to recover possession of 95 cases of shellac. Kidder, Peabody & Co. were bankers in Boston and agents of Baring Brothers & Co. John H. Hobby, Sons & Co. were warehousemen in Hew York. On August 3, 1881,.

• This action was brought to recover possession of certain real and personal property held by defendant Franklin Newman, Jr., to which plaintiff's claimed title under a conveyance from Franklin Newman. The material facts are stated in the opinion.

<p>Appeal by defendants, Cecelia and James Gumming, from judgment of tlxe General Term of the Supreme Court in the fourth judicial department, entered upon an order made January 29, 1885, which affirmed a judgment in favor of plaintiffs, entered upon a decision of the court on trial without a jury. (Reported below, 35 Hun, 22.)</p> <p>This was an action of ejectment, to recover possession of a strip of land, adjacent to and above low-water mark of the St.</p> <p>Lawrence river and lying south-west of and adjoining premises of the defendants.</p> <p>The material facts are stated in the opinion.</p>

<p>Appeal from order of the General Term of the Supreme Court in the second judicial department made February 15, 1887, which affirmed an order of Special Term, affirming the proceedings of the defendant in removing the relator from his position as a member of the Department of Fire and .Buildings in the city of Brooklyn.</p> <p>The material facts are stated in the opinion.</p>

Appeal on the part of plaintiff from judgment of the General Term of the Supreme Court in the fifth judicial department, entered upon an order made October 31, 1884 (amended by order of January Term, 1885), which affirmed as to all of the defendants, except Charles Barton, a judgment m favor of defendants entered upon a decision of the court on trial at Special Term.

<p>A married woman may he estopped by her acts and declarations in any matter in respect of which she is capable of acting sui juris.</p>

<p>Where an attorney is employed, without agreement as to compensation, to bring a great number of actions, alike in their nature, involving no complicated questions of law and only the most simple questions of fact; which actions are disposed of by obtaining judgments by default or otherwise without contest, there is no rule of law which makes, as against his client, the taxable costs the measure of compensation to which he is entitled for his services. He is simply entitled to what it can be shown the services are reasonably worth under the circumstances.</p> <p>It seems that since the passage of the (lode, there is no rule of law which m any case makes the compensation of the attorney necessarily co-extensive with the taxable costs, in the absence of an agreement.</p> <p>iScott v. Mmendorf (12 Johns. 315); Brady r. Mayor, ete. (1 Sand. Sup. Ot. Bep., 569); Rooney v. S. A. R. R. Oo. (18 IT. Y. 368), distinguished.</p>

<p>In an action to recover tlie purchase-price of goods manufactured for and delivered to defendant, the defense was that the goods were not such as the contract called for. The evidence on trial was conflicting as to the terms of the contract, the quality of the goods and their fitness for the use intended, and as to whether they corresponded with those ordered. It appeared that plaintiff manufactured and delivered goods in quantity corresponding with the order; that, some faults in their quality having been alleged, he received them back and attempted to remedy the alleged defects and finally redelivered the whole quantity to defendant; that defendant still claimed that they did not correspond with the articles plaintiff contracted to make, and when the latter demanded payment refused, and that thereupon plaintiff demanded a return of the goods, to which defendant replied that he would not give them up, as he wished to consult counsel as to his right to keep them for reimbursement of damages. The trial court thereupon ordered judgment for plaintiff, holding that the refusal to return the goods amounted to an acceptance under the contract. Held, error; that the question was one of fact for the jury.</p> <p>The acceptance hy a vendee of articles manufactured for him under an executory contract, after an opportunity to examine, precludes him from raising any objection as to defects which were visible and capable of discovery on inspection, unless there was a warranty of quality which was intended to survive acceptance-</p> <p>Where there is such a warranty the vendee may receive and retain the goods and recoup or recover damages for any breach of the warranty, or he may return the goods and plead a rescission of the contract as a defense to an action for their price.</p> <p>It seems, however, the purchaser may not in the same action sustain a claim of a return of the goods and rescission of the contract, and also for damages for breach of the warranty.</p> <p>Norton v. Drey fuss (19 J. & S. 491) reversed.</p>

Appeal by defendant Eno from judgment of the General Term of the Supreme Court in the first judicial department, entered upon an order made January 21,1885, which affirmed a judgment in favor of plaintiff, entered upon a decision of the court on trial at Special Term. ' ' This action was brought by plaintiff, as judgment-creditor of defendant, the Illinois and St: Louis Bridge Company,' against it and defendant Eno, among other things, to compel the latter to pay forty per…

<p>The provisions of the railroad act of 1869 (§ 4, chap. 907 Laws of 1869), directing and providing for the application of taxes assessed upon any railroad in a town, city or village; toward the redemption of bonds issued by the municipality to aid in the construction of such railroad, are not in conflict with any constitutional provision.</p> <p>They do not impose a tax upon property m other portions of the county for the benefit of the town, city or village, they simply deprive such other portions of the benefit derived from the taxation of railroad property in the municipality.</p> <p>They are not violative of the provision of the State Constitution (§ 8, art. -7), prohibiting the payment out of the treasury of the State of any ' moneys, except in pursuance of an appropriation, etc.; as the fund realized from, such' taxation "does .not belong to the State or go into its treasury.</p> <p>They are not repugnant to the constitutional provision (§ 20, art. 3), declaring that every law which imposes a tax shall distinctly state the tax and the object, to which it is to be applied; the said provision simply specifies what may be done with a tax which has been legally imposed.</p> <p>Said statutory provisions include ail taxes of every description save those excepted therein, i. e., school and road taxes, and so include town, village. city, county and"-State taxes.</p> <p>The scheme of the act is practicable and not difficult of execution.</p> <p>It seems the officers imposing the taxes, may ascertain the amount required to be paid under said provisions to the county treasurer and held by him as a sinking fund and specify the same in the warrant issued, to the collector. If not so specified," the collector may make the proper deduction of school and road taxes and pay the balance to the county treasurer. If the duty of making the separation has not been discharged before payment to the county treasurer, it devolves upon him to make the separation and invest the proper amount as ■ directed by the statute.</p> <p>It is not requisite that the taxes so to be appropriated should be specially levied; they are to be levied in the same way as other taxes.</p> <p>The said provisions are applicable to any municipality having bonds outstanding issued in aid of the construction of any railroad; and they are not limited to railroads constructed under said act of 1869.</p> <p>Where, upon application under said act, of a taxpayer of a town, to |. compel the county treasurer to execute the provisions of the act, it appeared that the taxes imposed upon railroads in the town for the year specified, after deducting school and road taxes, were much more than the sum specified in the petition as the amount of such taxes paid to the county treasurer. Held, that it was no defense that the petitioner had not prayed for a sufficient amount; that the county treasurer could not complain of this, or of an order requiring him to set aside a less sum than the act required.</p> <p>It seems, that in such case, notwithstanding the prayer of the petition, the county judge has power to ascertain the amount and compel the county treasurer to set aside for a sinking fund all the taxes which may appear to have been paid to him, and which, by the act, are devoted to that purpose.</p> <p>It is no answer on the part of the county treasurer in such proceedings that if he sets aside the taxes as required by the act there will be a deficiency m other funds, the law having appropriated them for a specific purpose, it is his duty to so apply them, and he may not use them for other purposes.</p> <p>All prior laws in conflict with said provisions or requiring a different disposition of taxes so collected, were thereby so far modified or repealed.</p>

<p>A bill of particulars, like a pleading,' may be amended.</p> <p>A plaintiff is not bound to furnish a statement of payments or off-sets which he has voluntarily credited, and where he has done so in such a manner as by mistake to have periled his right or made ambiguous his meaning, the allowance of an amendment striking out the statement is proper.</p> <p>Plaintiff claimed to recover, among other things, for board furnished defendant; the latter answered denying the claim, and set up a counter, claim for board furnished by him to the plaintiff, who replied, denying the counter-claim. Plaintiff served a bill of particulars, which contained a charge against defendant for board and a credit to him for similar service of less amount. The trial was conducted by both parties upon the theory that the question of legal liability for board was an •open one, and no objection was made by defendant to evidence offered to defeat his claim by plaintiff. The referee refused to "allow either claim upon the ground that, while board was furnished as alleged, the relations of the parties were such that, in the absence of an express agreement, no promise to pay on either side could be implied. JZeld< that having reference to the form of the pleading and the issues raised, the credit given in plaintiff’s bill of particulars was not a conclusive •admission of legal liability to that amount; also, that if defendant had intended to rely upon the alleged admission, he should have raised the question on the trial when the bill might have been amended by striking out the credit; and, having failed so to do, he could not raise it on appeal.</p>

<p>Defendants chartered a vessel for a voyage from New York to Cadiz; they to pay to plaintiff a sum specified on delivery of the cargo at Cadiz, “in cash, without credit, discount or commission.” Plaintiff performed the obligations of the charter party on his part. Defendants’ agent at Cadiz, who had funds in his hands to pay the freight, having been advised by plaintiff that he desired to remit a portion of the same stipulated to his principal, agreed to purchase and remit a bill of exchange for the amount, and thereafter represented that he had so done, and defendants, relying upon such statement on payment or the balance, settled with the said agent, who had not, in fact, made the remittance as agreed, but instead thereof had drawn and transmitted his own draft on defendants, payable sixty days after sight for the amount, which draft defendants refused to accept or pay Said agent had no authority to draw on defendants and had no funds in their hands. Plaintiff did not know that such draft was drawn until after he left the port of Cadiz and never agreed to accept it, but supposed the remittance was made as agreed. In an action to recover the amount of freight unpaid held, that defendant was entitled to judgment; that although plaintiff assented to a mode of payment different from that stated in the charter party, yet as the condition upon which the assent was given was not performed, it did not constitute in any sense a payment of defendants’ debt.</p> <p>It teems that if plaintiff had accepted the personal draft of the agent, or had extended to them a credit for the sum, in satisfaction of defendants’ obligation, it would have operated as a discharge.</p> <p>Holdsworth v. He Belaumaran (34 Hun, 382) reversed.</p>

The plaintiffs were owners of certain wharves, piers and warehouses at the foot of' Joralemon street, in the city of Brooklyn, within the port of New York, erected on land under water within the boundaries mentioned in chapter 156 of the Laws of 1848, and chapter 313 of the Laws of 1860.

<p>Plaintiff, a passenger on defendant’s road, in attempting to step from the car tQ ^ station platform missed the platform, fell between it and the cal" an-d was injured. In an action to recover damages for the injuries following facts appeared: The distance between the platform and the car was eleven inches. The lower step of the car was eight inches below the top of the platform, and one foot seven inches distant therefrom. The second step was about four inches below the platform and two feet two inches therefrom. Plaintiff stepped from the second step without having hold of the iron railing on either side and without looking to see the station platform. The platform had been used for many years by passengers, and prior to the accident no one bad been injured or had suffered any inconvenience on account of the distance between the platform and the cars. It did not appear but that the platform was constructed in the ordinary way, or that the space between it and the car was more than was requisite, and there was no complaint that the platform was out of order or improperly constructed. Held, the facts did not justify a verdict for plaintiff; and that a refusal to direct a verdict for defendant was error.</p> <p>As a general rule where an appliance, machine or structure, not obviously dangerous, has been in daily use for years and has uniformly proved adequate, safe and convenient, it may be continued without the imputation of negligence.</p> <p>It is not the duty of a railroad company to furnish some one to aid passengers in alighting from its cars.</p>

<p>Pontiff was lessee of certain premises, upon which was a hotel, formerly separated from defendant’s premises by a strip of land Uiirty feet wide. This strip, in the deed under which defendant claimed, which was from W., the then owner of the whole property, was described as thereby dedicated for the purposes of a public street; tlle dedication was never accepted by the public. The deed from W. stated that the conveyance was for the purpose of a railroad depot only, and the grantee erected a depot upon the premises. W., devised the remaining property, one-fourth to each of four devisees. On partition of the hotel property, not including the strip of thirty feet, two of the devisees became the owners. They subsequently quit-claimed to defendant's predecessor an undivided one-half of that portion of the strip in question, twenty feet wide, adjoining the land so conveyed by W. The deeds contained a provision to the effect that the conveyance was made on the express condition that the grantee, its successors or assigns should at all times maintain an opening into the premises conveyed, opposite to the hotel, for the convenient access of passengers and baggage to and from the premises conveyed, which opening should at no time be closed. The hotel was accessible from the depot across said strip, and depended largely for its patronage upon the passengers arriving at and departing from the depot. Defendant, on succeeding to the title of W.’s grantee, built a high and substantial fence the whole length of the strip, on the line between the twenty feet so conveyed and the remaining ten feet, with no opening therein, thus cutting off all passage between the hotel and depot. In an action, among other things, to restrain the continuance of the fence, held, that by the failure to accept the dedication, the thirty feet strip remained the property of W , and descended to his devisees at his death; that plaintiff, as lessee of the grantors, could not question the validity of the quit-ciaim deeds which must be regarded as conveying all the interest of the grantors in the twenty feet, and they thereby abandoned all claim to the same as a public highway; but that the provision in the deeds as to an opening was a covenant running with the land conveyed; that such covenant made the right of passage across the twenty feet a right or easement appurtenant to the hotel property, and so it was enforceable by plaintiff as lessee of such property; and that, therefore, the action was maintainable.</p> <p>Plaintiff’s complaint simply alleged that he was in possession of the hotel property. On trial defendant moved for a dismissal of the complaint on the ground that it did not show plaintiff to be a party or privy to any- covenant in the deeds. The court, on motion of plaintiff, permitted an amendment of the complaint setting up the lease to plaintiff. Held, no error.</p> <p>The complaint alleged the strip of land in question to be a public highway and the fence for that reason a nuisance. There were, however, averments to the effect that there existed an easement appurtenant to the hotel property, consisting of a right of way across some portion of the strip for passengers and their baggage, and that defendant in erecting the fence had left no opening, as of right it should have done. Held, that while the omission to state in the complaint that the easement claimed was reserved by the deeds might have been ground for a motion to make the complaint more definite, it did not defeat plaintiff’s right to any relief by virtue of the reservation which he could not obtain on any other ground.</p> <p>The judgment below directed the removal of the whole fence. Held, error; that plaintiff was simply entitled to an opening opposite to the hotel of sufficient size to permit the convenient passage of, and at no time to be closed against, passengers and their baggage.</p>

Appeals from judgment of the General Term of the Superior Court of the city of New York, made March 5,1885, which affirmed separate judgments against defendants, entered upon a verdict and affirmed orders denying motions for a new trial.

<p>Appeal from judgment of the General Term of the Supreme Court in the first judicial department, entered upon an order made May 8, 1885, which affirmed a judgment in favor of the plaintiff entered upon a verdict. (Reported below, 36 Hun, 337.)</p> <p>This was an action of ejectment.</p> <p>It appeared that James Wakely was formerly the owner of two lots of land in the city of Hew York, known as Hos. 141 and 143 West Forty-ninth street. These lots were each twenty-two feet front and rear, and one hundred feet four and one-lialf inches in depth. Mr. Wakely conveyed them to the plaintiff by deed, dated Hovember, 1853. By deed, dated June, 1880, the plaintiff conveyed to Mary Larkin, afterwards Laverick,' the lot and premises 143, and the latter by deed, dated April 1, 1882, conveyed the same premises to the defendant Morrison. In the deed from the plaintiff to Larkin the lot was described as twenty-two feet front and rear by one hundred feet and four and one-half inches in depth, and was conveyed “ with the buildings and improvements thereon,” “ together with all and singular the tenements, hereditaments and appurtenances thereunto belonging.” It appears that there was a small structure built upon the rear of lot 141, which was complete, walls and all, before a kindred structure was erected upon the rear of lot 143. The structure upon the rear of 141 did not cover the whole lot. The structure upon 143 covered not only the rear of that lot, but extended about five feet over the line of lot 141 and up to the west wall of the structure erected upon 141, and the west wall of 141 therefore formed the easterly wall of the structure upon 143. The walls of the structure of 143, although they extended to the westerly wall of 141, were not keyed to it, and the beams rested on piers. The principal controversy was as to the right of the defendant under his deed to occupy the five feet of lot 141, over which the structure upon 143 extends. Upon lot 141, between the west wall of the building thereon and lot 143, at the time of the conveyance by plaintiff aforesaid, was a privy, hydrant, etc., connected with and used by the occupants of said house on lot 143. Defendant claimed an easement for the maintenance of said structures.</p>

<p>Appeal from judgment of the General Term of the Supreme Court in the fourth judicial department, entered upon an order made April 21, 1885, which affirmed a judgment in favor of defendant 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>Appeal from judgment of the General Term of the Supreme Court in the fourth judicial department, entered upon an order made at the April Term, 1885, which affirmed a judgment in favor of plaintiff entered upon a decision of the court on trial without a jury.</p> <p>This action was brought against defendant as indorser of three promissory notes made by the firm of H. O. Cad well & Co. The nswer contained two counts: The first alleged in substance that defendant was an accommodation indorser; that plaintiff obtained judgments against the makers, issued executions thereon, and that the sheriff under said executions levied on property of the makers and sold the same for more than sufficient to satisfy the judgment. The second count alleged that plaintiff, in fraud of the provisions of the bankrupt act, knowing the makers to be insolvent, and for the purpose of haying their property applied to the payment ot the notes contrary to the provisions of said act, obtained said judgments against the makers and procured the levy upon and sale of their property. That proceedings in bankruptcy were thereafter commenced against the makers, and the assignee in bankruptcy brought suit against plaintiff, in which it was adjudged that the judgments, levy and sale were fraudulent and void. By reason whereof plaintiff and defendant were debarred of all rights and remedies against the property of the makers, and that thereby defendant was discharged from all liability as indorser.</p> <p>The material facts are stated in the opinion.</p>

(Reported below 33 Hun, 589.) This action was brought to recover damages alleged to have been sustained by plaintiff in consequence of the wrongful issue by defendant, through its- local freight agent at Batavia, of two bills of lading.

This action was brought to recover damages for the alleged conversion by defendants of a quantity of corn belonging to plaintiff. The facts, so far as material, are stated in the opinion.

<p>Appeal from judgment of the General Term of the Supreme Court in the first judicial department, entered upon an order made May 8, 1885, which affirmed a judgment in favor of plaintiffs entered upon a verdict and affirmed an order denying a motion for a new trial.</p> <p>This action was brought by the plaintiffs, as shippers, against the defendants, as common carriers, to recover damages for breach of a joint contract for the carriage of whale oil from Panama to Mew York.</p> <p>The complaint alleged that the plaintiffs were copartners and that the defendants were corporations organized under the laws of this State; that the business of the Panama Pail-road Company, among other things, was the transportation of freight from Panama by rail to Aspinwall, and there to deliver the same to the Pacific Mail Steamship Company, whose business it was, among other things, to transport the freight so received by vessel to Pew York; that the defendants, for a single price named, entered into a joint contract to carry the oil from Panama to Mew York; that they entered upon the performance of their contract in the months of January and February, 1873, and delivered a portion of the oil received by them from the plaintiffs, in the city of Mew York, about the 23d of April, 1873; that, owing to the negligence, delay and improper handling of the oil, and the casks containing the same, by the defendants, the oil was greatly damaged and injured, and a large part of it was lost by leakage while at Panama, on its way across the Isthmus, at Aspinwall, and also on the passage from Aspinwall to Mew York, and that by reason of negligence, improper conditct and mismanagement of the defendants, the plaintiffs suffered damages in the sum of $20,000, besides interest. Each of the defendants, by a separate answer, among other things, denied the joint contract and the joint liability alleged in the complaint; alleged that the oil was delivered and carried under a special contract, printed and in writing, copies of which were delivered to plaintiffs, wherein the several rights and liabilities of plaintiffs and defendants, and each of them, ivitli respect to plaintiffs and to each other, relative to the subject-matter of the complaint, were limited, defined and determined, and that its undertaking in regard to the oil was only under such contract, which it had fully performed; that it was not liable for losses accruing upon the route of the other defendant; and each defendant also alleged, as a separate defense, that there was a defect of parties plaintiff, and that several other persons named were then, and also at the time of the making of the contract and the transportation of the oil, jointly interested with the plaintiffs in the oil.</p> <p>The further material facts are stated in the opinion.</p>

<p>Appeal from judgment of the General Term of the Superior Court of the city of New York in favor of plaintiff, entered upon an order made November 24, 1883, which directed j udgment on a verdict directed by the court. (Reported below, 17 J. & S. 338.)</p> <p>This action was brought to recover damages for the alleged conversion by defendants of two $1,000 bonds belonging to plaintiff.</p> <p>The material facts are stated in the opinion.</p>

This action was brought by plaintiff, as vendor of real estate, to have an equitable prior lien declared in his favor as vendor for unpaid purchase-money. The facts are sufficiently stated in the opinion.

<p>Appeal from judgment of the General Term of the Supreme Court in the fourth judicial department, entered upon an order made October 7, 1884, which affirmed a judgment in favor of plaintiff entered upon a verdict.</p> <p>This action was upon a policy of fire insurance. The material facts are stated in tire opinion.</p>

<p>Where a conveyance of land to a religious corporation is absolute, without condition or reservation, it creates no trust beyond the duty imposed by law upon the corporation of using its property for the purposes contemplated in its creation. Such a trust is not fastened upon the land, but the corporation may, with the judicial consent, sell and ¿onvey a good title, the proceeds in such case taking the place of the land.</p> <p>As to whether, under the acts of 1875 and 1876 (Chap. 79, Laws of 1875 and Chap. 110, Laws of 1876), and under the “rules and usages” of the Presbyterian church of the United States, a church belonging to that denomination can sell its real estate without the precedent consent of the Presbytery, quaere.</p> <p>The Presbytery gave its consent to such a sale, provided it was authorized by a vote of the congregation in public meeting assembled.” The trustees of the church regularly called a meeting, at which of one hundred and thirty-seven members entitled to vote, eighty seven voted, and of these sixty-six voted in favor of a sale- twenty-four of those who did not vote signed a paper approving a sale. Held, that, conceding the consent of the Presbytery was necessary, the condition imposed by it was complied with and the sale was authorized.</p> <p>Also, held, in the absence of proof that any lawful vote was excluded or unlawful one admitted, the want of a proper register did not invalidate the vote taken.</p> <p>This court has no authority to review the determination of the court below as to the-propriety of such a sale.</p>

<p>Appeal from order of the General Term of the Supreme Court in the first judicial department, made March 2, 1887, which reversed, on certiorari, the proceedings of the defendant removing the relator from the office of second chief of the fire department of the city of New York and reinstated him in his office. (Reported below, 43 Hun, 554.)</p> <p>The material facts are stated in the opinion.</p>

353, Laws of 1882) for the salaries and expenses of the Board of Railroad Commissioners. One-half of the said salaries and expenses was apportioned by assessment upon each railroad in the State in proportion to the length of its road. The General Term decided that where a railroad had two or more tracks running parallel with each other all should be included in making the apportionment.

Appeal by Silas J. and James Y. Donvan from order of the General Term of the Supreme Court in the first judicial department, made January 22, 1887, which affirmed orders-of Special Term denying the application of said appellants to-be made parties defendant herein. The nature of the action and the material facts are stated in the opinion.

<p>It seems that the provisions of the Code of Civil Procedure (§§ 870, 873), in reference to the examination of a party to an action before trial, do not absolutely bind the judge to whom application is made for such an examination to grant an order, although the affidavit presented in form conforms to the requirements of said provisions Where, from the nature of the action and the other facts disclosed, the judge can see that the examination is not necessary; that it is sought merely for annoyance or delay, he may in his discretion, deny the application. Conceding the provision requiring the judge to make the order to be mandatory, it does not interfere with the power of the Supreme Court; it may, on motion, in the exercise of its discretion upon all the facts appearing, vacate the order and leave the party to take the examination on the trial.</p> <p>An order vacating an order for the examination of a party is not reviewable here, unless it appears from it that the decision was placed upon some ground of law not involving discretion.</p>

The Imperial Skirt Manufacturing Company was a corporation organized under the general manufacturing act of 1848, and the acts amendatory thereof. At various periods, during the year 1877, it made its four promissory notes, amounting in the aggregate-to the sum of $13,000, and delivered them to the plaintiff for value.

<p>Appeal from judgment of the General Term of the Supreme Court in the second judicial department, entered upon an order made December 11, 1883, which affirmed 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>

Appeal by the people from a judgment of the General Term of the Supreme Court in the Fifth Department, of April 21, 1887, reversing a conviction of Joseph Elliott, the defendant, by the Court of Sessions of the County of Monroe, of forgery in the second degree charged as a second offense. The facts are given in the report of the case at the General Term, 5 N. Y. Crim. Rep. 204.

Appeal by defendant Hanford West from a judgment of the General Term of the Supreme Court in the Fifth Department of April 9, 1887, reversing a judgment of the ■ Court of Sessions of Erie County entered upon an order • sustaining a demurrer to the indictment. The facts and indictment sufficiently appear in the opinion of the Court of Appeals.

Appeal by defendant John M. Schuyler from a judgment of the General Term of the Supreme Court in the Fourth Judicial Department entered upon an order made January 11, 1887, which affirmed the judgment of a Court of Oyer and Terminer of Otsego County, entered upon a verdict convicting the defendant of the crime of murder in the first degree, the charge being that he had on July 2, 1885, at the town of Monis, in Otsego County, with a deliberate and premeditated design to…

Appeal by Charles Iiibler. defendant, from a judgment of the General Term of the Supreme Court in the Fifth Department, of February 19, 1887, affirming the'jndgment of the Court of Sessions of Erie County, entered upon a conviction of defendant of selling watered milk in violation of L. 1885, ch. 458. I. The people were simply bound to prove that the milk was below the standard fixed by the statute.

<p>Where a purchaser of a portion of mortgaged premises assumes and agrees to pay, as part of the purchase-price the whole mortgage, he becomes the principal debtor, the mortgagor remaining simply a surety; the portion conveyed is primarily liable for the mortgage debt, and the remainder is liable as security merely.</p> <p>The purchaser, therefore, is bound to protect the mortgagor and his land. from any liability on account of the mortgage debt.</p> <p>This obligation on the part of the purchaser is not affected by its conveyance; and, if the said purchaser fails to protect the residue from sale under the mortgage, he becomes liable to the grantee thereof for the damages thus caused to him.</p> <p>The grantee of the remainder is not bound to take any steps in an action to foreclose the mortgage; it is the duty of the principal to appear therein and protect the interests of his surety; and, if he fails so to do and the latter is, in consequence, deprived of his land, the value thereof is the fair measure of his damages.</p> <p>The rule which requires a party exposed to injury or damage to make the loss as small i s he reasonably can, does not require the grantee of the remainder to advance the money to pay the mortgage for the purpose of protecting himself and his land,</p>

The Special Term order denied the prayer of the petitioner and dismissed the petition and writs. The only objection insisted upon here was that the oath of the assessors was defective. It appeared that the oath annexed to the assessment-roll, when it was delivered to the supervisor of said town, instead of being in compliance with the requirements of the act (Chap. 201, Laws of 1885), was in the form prescribed by the law as it existed before the passage of that act.

This action was brought by plaintiff, as assignee fo/ the benefit of creditors of one P. M. De Leon, to recover damages for the non-delivery of the goods mentioned in the instrument set forth in the opinion, wherein, also, all the material facts are stated.

<p>Appeal from a judgment of the supreme court, general term, first department, affirming a judgment entered upon a verdict rendered by a jury in favor of the plaintiff! at the New York county circuit, and also affirming an order denying a motion for a new trial on the judge’s minutes. The facts appear sufficiently in the opinion.</p>

This action was brought to recover damages for alleged negligence, causing the death of Philo P. Woodard, plaintiffs intestate. The material facts are stated in the prevailing opinion.

This action was brought upon certain notes issued to Hiram Parker, plaintiff’s intestate, by Henry A. Mann, as treasurer of the county of Saratoga, of one of which notes the following is a copy: “No. 8. . “ Saratoga County Treasurer’s Office, ) “Ballston Spa, February 15, 1875. f “ In pursuance of a resolution, passed November, 1874, by the board of supervisors of Saratoga county, the county of Saratoga promises to pay, at the Saratoga county treasurer’s office, on the 15th…

Appeals by various claimants from order of the General Term of the Supreme Court, in the second judicial department, made September 16, 1886, which reversed an order of Special Term confirming the report of a referee as to the disposition of surplus moneys arising on foreclosure sale herein. This action was brought to foreclose a mortgage executed by defendant Attrill to one Littlejohn, and by him assigned to plaintiff’s testator.

This action was brought to foreclose an alleged lien upon certain railroad property and to charge certain of the defendants individually with the indebtedness, the subject of said lien. The facts, as found by the court, are substantially as follows: The Plattsburgh and Montreal Railroad Company was organized on the 28th day of March, 1850, under the general railroad act of 1848.

<p>Appeal from the order of the General Term of the Supreme Court in the first judicial department made January 22,1887, which affirmed an order of Special Term, granting a motion on the part of defendant Gerry, directing that the judgment herein be canceled and discharged of record as against him.</p> <p>The material facts are stated in the opinion.</p>

upon a decision of the court on trial at Special Term. This action was brought to restrain the defendant from engaging in the manufacture or sale of friction matches in violation of a covenant in a bill of sale executed by defendant, which is set forth in the opinion, wherein also the material facts are stated.

<p>No person can make himself a creditor of another h)' voluntarily discharging a duty which belongs to that other; and no obligation can be implied in law from a voluntary payment of the debt of another, without his request, by one who is under no legal liability or compulsion to make it.</p> <p>The proportion of the State tax levied upon a county and charged to its treasurer is payable by him; not as the officer or agent of the county but as an individual, designated by his official name for the performance of specific duties, and the county is not responsible for his omissions or defaults in respect thereto save in the manner prescribed by law. In case of the failure or neglect of the county treasurer to pay over the taxes due the State, or to render an account thereof to the comptroller, it is not until the remedy against him and against his bail has been ■ exhausted and the loss by reason of that default has been thus ascertained, that the county is required to act or any duty is attached to it. (Chap. 437, Laws of 1853, Chap. 893, Laws of 1863.)</p> <p>M., a county treasurer, being in default in the payment of the State tax levied upon his county, executed two notes in his name of office purporting to be by authority of the board of supervisors, but without any actual authority from that body. These notes were discounted by plaintiff, the proceeds credited in the individual account of M. and paid out on his checks to the State treasurer to apply on his account with that officer. Held, that an action was not maintainable against the board of supervisors to recover the amount as for so much money had and received by the county for its benefit and use; that the indebtedness to the State discharged by the money procured from plaintiff, was not that of the county but of M.; but that conceding it to have been a county indebtedness, plaintiff, having voluntarily furnished M. with the means to discharge the debt without any request or promise to pay on the part of the county, did not thereby become its creditor, and no liability on its part was created.</p> <p>Newman v. Supervisors (45 N. Y. 676, 687); Bridges v. Supervisors (93 id. 570), distinguished.</p>

This was an action to compel a specific performance of a contract for the purchase of certain lands. The substance of the pleadings and the material facts are set forth in the opinion.

Appeal by defendant Alexander Dumar, from a judgment of the supreme court, general term, in the fifth department, entered upon an order made October 22, 1886, which affirmed a judgment of the court of sessions of Monroe county, entered upon a verdict convicting defendant of grand larceny in the second degree. The opinion of the general term of the supreme court upon the decision which is here reversed by the court of appeals appears in 5 N. Y. Grim. Rep. 55.

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.

<p>Appeal from a judgment of the general term of the supreme court, in the fifth judicial department, entered upon an order made January 25, 1887, which affirmed a judgment of the court of sessions of the county of Erie, entered upon a verdict convicting the defendant of the crime of forgery in the second degree.</p> <p>The facts, so far as material to the questions discussed, are stated in the opinion.</p>

<p>Appeal from judgment of the General Term of the Supreme Court in the first judicial department, entered upon an order made May 8, 1885, which affirmed a judgment in favor of plaintiffs entered upon a verdict.</p> <p>The nature of the action and the material facts are stated in the opinion.</p>

The action was upon a policy of fire insurance, the substance of which and the material facts are stated in the opinion.

<p>Appeal from judgment of the General Term of the Court of Common Pleas in and for the city and county of New York, entered upon an order made November 16,1884, which affirmed a judgment in favor of plaintiff entered upon a verdict and affirmed an order denying a motion for a new trial.</p> <p>The nature of the action and the material facts are stated in the opinion.</p>

<p>Appeal from order of the Greneral Term of the Supreme Court, in the fourth judicial department, made January 13, 1885, which reversed a judgment in favor of defendants-entered upon a verdict.</p> <p>This was an action of trespass. The material facts are stated in the opinion.</p>

This action was brought in October, 1882, for the alleged conversion of a promissory note. The answer set up a former suit pending, and that the judgment was satisfied by the voluntary discharge of defendant from a body execution issued in the former action. Defendant succeeded on both grounds. The facts, so far as material, are stated in the opinion.

<p>Appeal from order of the General Term of the Supreme Court in the fourth judicial department, made January 13, 1885, which reversed a judgment in favor of defendant entered upon a verdict directed by the court This action was upon a policy of fire insurance.</p> <p>The material facts are stated in the opinion.</p>

county of New York,, entered upon an order made May 12, 1885, which affirmed a judgment m favor of plaintiff entered upon a decision of the court on trial at Special Term. The nature of the action and the material facts are stated in the opinion.

<p>It is the duty of a carrier, at common law as well as under the factors’ act of this State, to ascertain whether a bill of lading was delivered to the shipper, and if so, to retain the property until demanded by one claiming under that title, and to deliver in accordance with it; if delivery is made without it he runs the risk of showing a delivery in accordance with its instructions.</p> <p>Plaintiff’s assignees delivered to the B. S. P. Co., at Norfolk, Va., 100 bags of peanuts, marked “ Y,” for shipment to Denver, receiving a bill of lading, in which, after specifying the property, the weight and freight, was the following: “Marked Y, order notify Zueca Bros.” In the course of transportation the peanuts were delivered to defendant. It received no bill of lading or copy thereof from the preceding carrier and it was not notified that any had been issued. It received a “ transfer sheet ” which contained this entry: “ Consignee ' l7,’ Hup Zueca Bros.” The same entry was made in the way-bill made up by defendant’s agents at the forwarding station, but under a column therein headed “consignee and destination,” the destination but no consignee was given. Defendant received no other notification as to the ownership or disposition of the goods. It delivered them at Denver to Zueca Bros., without the production or surrender of the bill of lading. That firm , had no title to or interest in the goods and had refused to pay a draft drawn upon them by the shippers, forwarded for collection, which was attached to the bill of lading; these papers had, in consequence, been returned to the shippers. Held, that defendant, upon failure to deliver to plaintiff on demand, became liable for a conversion of the goods; that the. use of the word “ notify ” in the bill of lading showed that Zueca Bros., were not intended as the consignees, and as none were named, no delivery could be safely made without production of the bill.</p> <p>It seems that a carrier receiving goods from another carrier is not justified in a delivery to the wrong person without a bill of lading, where one was made, although the delivery was in accordance with the papers received from the preceding carrier in which a different consignee is named from the one named in the bill.</p>

<p>Appeal from a judgment of the supreme court, general term, fifth department, affirming a judgment entered upon a verdict of a jury rendered in favor of plaintiff at the Steuben county court and an order denying a motion for a new trial on the judge’s minutes. All the material facts appear in the opinions.</p>

<p>Appeal from judgment of the General Term of the Supreme Court in the first judicial department, entered upon an order made May 29, 1885, 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>Appeal from an order of the General Term of the Supreme Court of the First Department, made May 13, 1887, affirming with costs an order of the Special Term of said Court, made January 7, 1887, discharging one Florence Van Riper, upon writs of habeas corpus and certiorari, from commitment to the appellant.</p>

<p>Appeal from order of the General Term of the Supreme' Court in the third judicial department, made November 24, 1886, which reversed, “upon questions of law and not upon a review of the discretion ” of the court, an order of Special Term granting to defendants an extra allowance of costs.-</p> <p>The facts material to the questions discussed are stated in the opinion.</p>

Appeal by Charles H. Russell, receiver of the defendant, the Knickerbocker Life Insurance Company, from an order of the General Term of the Supreme Court in the first judicial department, made April 23, 1887, which reversed an order of Special Term disallowing the claim of Pleasant H. Pendleton and others to- a share in the assets in the hands of the receiver.

Appeal by William. A. Parke et al., tenants, from an order of the General Term of the Supreme Court in the first judicial department, made May 13, 1887, which affirmed with “ costs and disbursements ” against the appellants an order of Special Term, modifying a previous order, authorizing the execution of the leases under which the appellants claim, and directing the retention and deposit, subject to the further •orders of the court, of a sum specified out of the proceeds of…

Appeal by Joseph W. Little and others, petitioners, fr'om order of the General Term of the Supreme Court in the first judicial department, made June 1, 1886, which affirmed an order of Special Term denying an application of said petitioners, the nature of which, as well as the material facts, are stated in the opinion. (Reported below, 40 Hnn, 516).

(Reported below, 44 Hun, 487.) The substance of the two orders, and the facts pertinent thereto, are set forth in the opinion.