Volume 107 — New York Reports

{Mem. bf decision below, 44 Hun, 233.) The material facts are stated in the opinion. The defendant having heen arraigned and never having pleaded to the indictment, the whole trial is a nullity. (Code of Crim. Pro., §§ 296, 297, 298, 299, 308, 309, 332, 333, 334, 342, 344, 345, 532, 538; Maurer v. People, 43 N. Y. 1; 4 Black. Com., 322, 332; Bishop Crim. Pro., § 648; 3 Whart. Crim. Law, § 3154; 2 Arch. Crim. Law, § 418; 2 Hale’s Pleas of the Crown, 217; Roscoe’s Crim.

Appeal by the defendant, Daniel Driscoll, from a judgment of the general term of the supreme court in the first judicial department, entered upon an order, affirming a judgment of the court of general sessions for the city and county of New York, after a trial resulting in a verdict of the jury convicting the defendant of the crime of murder in the first degree. The material facts are stated in the opinion.

The nature of the action and the material facts are stated in the opinion. i Within three years from the granting of letters of administration, purchasers of real property which belonged to the decedent will not be protected if such decedent’s debts exceeded his personalty. (Code of Civil Pro. §§ 2749, 2801; Slocum v. English, 62 N. Y. 497; Hyde v. Tanner, 1 Barb. 80 ; Jewett v. Kenholtz, 16 id. 195; Watkins v. Holman, 16 Peters, 63; Becker v. Koch, Alb.

Appeal by the petitioner, the New York District Railway Company, from an order of the General Term of the Supreme-Court in the first judicial department, made October 27,1886, which denied the application of the petitioner for the appointment of three commissioners to determine whether its railroad, ought to be built.

(Reported below, 42 Hun, 116.) ■ From the agreed case it appeared that on the 9th day of February, 1886, the plaintiff was, and since 1880, had been an inmate of the Soldiers’ Home, an institution duly incorporated (Laws of 1876, Chap. 270), and situated in the fifth election district of the town of Bath, Steuben county. The expenses of the institution and the support of its inmates are paid by the State out of annual appropriations made by the legislature.

upon a verdict and affirmed an order denying .a motion for .a .new trial. This action was brought to recover damages for an alleged breach of a contract of purchase and sale. The complaint alleged, in substance, that plaintiff, under the firm name of Thomas Pope & Brother, sold to defendant on or about February 2,1880, and said defendant purchased “300 tons ¿No. 1 Calder iron at a price specified,” to be delivered in bond at ¿New Orleans.

This action was brought in February, 1881. The nature of it and the material facts are stated in the opinion. The complaint was sufficient to present the fraudulent representations, as a cause of action and ground of recovery on behalf of • the plaintiff. (Maher v. Hibernia Ins. Co., 67 N. Y. 283, 290; Russell v. Brownell, 20 N. Y. W. Dig. 504; Hammersley v. DeBiel, 12 Cl. & Finn. 46; Pomeroy on Spec.

The substance of the complaint is set forth in the opinion, Equity cannot interfere to relieve plaintiff from the consequences of her mother’s design. (Perry on Trusts, § 173.) A constructive trust arises only in, favor of the particular person upon whom the supposed fraud is practiced. The law interferes to imply a trust, only where it is absolutely necessary to do justice.

(Reported below, 34 Hun, 167.) The nature of the action and the material facts are stated in the opinion. The instrument purporting to convey title from Fink to the plaintiffs was a chattel mortgage. (Kilburn v. Low, 25 Hun, 61; 12 N. Y. Week.

the nature of which and of the action, and the material facts are stated in the opinion. The statute which creates the personal liability of stockholders, also provides that no suit shall be brought against any stockholder who shall cease to be a stockholder in any such company, for any debts so contracted, unless the same shall be commenced within two years from the time he shall have ceased to be a stockholder in such company.

Appeal by Edward B. Wesley, a creditor, from judgment of the General Term of the Supreme Court in the first judicial department, entered upon an order made January 22, 1887, which affirmed, so far as appealed from, a decree of the surrogate of the county of New York, on settlement of the accounts of Benjamin H. Kendrick as administrator of the, estate of Edward E. Kendrick, deceased. The proceedings were instituted upon the petition of said administrator.

(Reported helow 36 Hun, 100.) The nature of the action and the material facts are stated in the opinion. Where one induces another to enter into a contract and part with his property, either by duress or imprisonment, or duress per mimas the transaction is voidable.

Plaintiff brought this action originally against the Phoenix Mutual Life Insurance Company upon a policy of life insurance issued by that company. The defendant, upon an affidavit showing that one Mosher claimed to own the policy and to be entitled to the amount due thereon, moved in pursuance of section 820 of the Code of Civil Procedure that said Mosher be substituted as defendant, and that it be discharged on payment of the money into court.

<p>Appeal from order of the General Term of the Superior Court of the city of Hew York made February 7, 1887, which affirmed an interlocutory judgment overruling a demurrer to the complaint herein.</p> <p>This action was brought by plaintiff as assignee of the executors of Charles O’Conor, deceased, to recover for professional services rendered by him as counsel for defendant in what was known and described as the “ Tennessee Bond Cases.” The complaint set forth the will of O’Conor and a codicil thereto, alleged the rendition of the services and non-payment therefor.</p> <p>The demurrer was based upon the ground that in and by the will defendant was released from all liability.</p> <p>The material portions of the will and codicil are set forth in the complaint.</p> <p>The' original will and codicil together make one last will, in the same manner as if the original will were written anew, embodying the codicil, and then the whole executed anew. ( Washburn v. Sewell, 4 Metc. 66; Sherer v. Bishop, 4 Brown’s Ch. 55; Byne v. Curry, 2 Cr. & M. 603; 4 Thyrwhitt’s Exch. 479; Day v. Croft,4 Beav. 561; Doe dem. York v. Walker, 12 M. & W. 591, 599; 1 Williams on Exrs. [6th Am. ed.] 225; 1 Redf. on Wills [4th ed.] 368; 1 Redf. on Wills, chap. 8, § 6; Perkins v. Micklethwaite, 1 P. Wms. 274.) The codicil operates' as its republication, and all of the will is presumed to be in the mind of the testator at the execution of the codicil. (1 Jarman on Wills [5th Am. ed.] 364; Payne v, Payne, 18 Cal. 291 ; Jones v. Shewmaker, 35 Ga. 151; Duncan v. Duncan, 23 Ill. 364; Beall v. Cunningham, 3 B. M. [Ky.] 390; Armstrong v. Armstrong, 14 id. 338; 4 Dane’s Abridg. chap. 127, art. 1, § 11, p. 550; Haven v. Foster, 14 Pick. 534; Washburn v. Sewell, 4 Metc. 63 ; Brimmer v. Sohier, 1 Cush. 118; Tilden v. Tilden, 13 Gray, 103; Hosea v. Jacobs, 98 Mass. 65; Snow v. Foley, 119 id. 102; Brownell v. De Wolf, 5 Mason [Me.] 486; Van Cortland v. Kipp, 1 Hill, 590; West cott v. Cady, 5 Johns. Ch. 343; Lynch v. Prendergast, 67 Barb. [S. C.] 504; Howland v. Un. Theo. Sem., 5 N. Y. 193; Van Alstyne v. Van Alstyne, 28 id. 375; Murray v. Oliver, 6 Ired. Eq. [N. C.] 55; Collier v. Collier's Exrs. 3 O. St. 369; Cole v. Smith, 4 Penn. St. 376; Smith v. Puryear, 3 Heisk. 706; R. S. chap. 3, § 3, p. 59; Haven v. Foster, 14 Pick. 534, 547; Washburn v. Sewell, 4 Metc. 63; Gray v. Sherman, 5 Allen, 198.) Mr. O’Conor’s intention to release Mr. Stevens cpn only be negatived by the contents of the codicil, showing by internal evidence, not that such intention had no existence, but that a contrary intent was entertained. (Cole v. Smith, supra; 1 Redf. on Wills [4th ed.] 368.) In collecting, the intention of the testator courts are bound by precedent and authorities in point and upon identity of language, they are rather to follow settled authority than conjectural interpretation. (Myers v. Eddy, 47 Barb. 263.)</p> <p>The dispositions made by a will are not to be disturbed by a codicil further than is necessary in order to give effect to the testator’s intention in fact; and the will is affected only so far as there is repugnancy between it and the codicil, while in all other respects the purpose and intent of the testator manifested in the will are deemed to be unchanged. (Pierpont v. Patrick, 53 N. Y. 595.) Where a testator expresses in the codicil a determination to alter his will in one particular, he thereby negatives by implication, any intention to alter it in any other respect. (Quincy v. Rogers, 9 Cush. 296; Wetmore v. Parker, 52 N. Y. 462; Alsop's Appeal, 9 Penn. St. 374, 381; Hopwood v. Hopwood, 7 H. L. C. 740 ; 5 Jurist [N. S.] 897; Garrett v. Garrett, 2 Strob. Eq. [S. C.] 283; Gold v. Judson, 21 Conn. 616; Abney v. Miller, 2 Atk. 593; Blundell v. Mead, 1 Madd. 433; All S. Coll. v. Coddington, 1 P. Wms. 597; Cole v. Scott, 16 Sim. 259; 1 McN. & G. 517; Dayton on Surr. 145; Stillwell v. Mallersh, 20 L. J. R. [N. S.] Ch. 356; 5 Eng. L. & Eq. Rep. 185.)</p>

<p>Appeal from a judgment of the supreme court, general term, third department, affirming the judgment in favor of plaintiff, and order of the special term overruling the demurrer herein.</p>

This action was brought by plaintiffs, as owners of certain bonds issued by defendant, the Ogdensburgh and Lake Champlain Railroad Company, known as “ income mortgage bonds,” on their own behalf and that of owners of other like bonds to restrain said defendant from using its net earnings for the purpose of carrying out the terms of a lease executed to it by the Lamoile Valley Extension Railroad Company, by paying bonds issued by that company and for an accounting for moneys…

(Reported 36 Him, 263.) The nature of the action and the material facts are stated, in the opinion. The plaintiff had no interest in the surplus money. (36 Hun, 266.) As no requests to find were submitted by the plaintiff, and no exceptions were or could have been taken to the refusal of the court to find, this court is confined to the state of facts as presented in the findings. (Smith v. Glens Falls Ins.

(Reported below, 39 Hun, 22.) This action was brought by plaintiff, as supervisor of the town of Attica, in the county of Wyoming, to recover damages alleged to have been sustained by said town by reason of certain fraudulent and unlawful acts on the part of the defendant, set forth in the complaint, the substance of which, as well as the facts as found, 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 29, 1885, which affirmed a judgment in favor of plaintiff entered upon a verdict.</p> <p>This action was upon a check drawn upon and certified by defendant.</p> <p>The material facts are stated in the. opinion.</p> <p>The appellant was under no legal obligation to recognize the alleged ownership of the respondent, or to pay the amount of the check, except upon the order of the drawer, evidenced by his indorsement upon it. ( Willets v. Phœnix Bank, 2 Duer, 121; Edw. on Bills and Notes, 405,406; Byles on Bills, 62,147; Rand. on Com. Paper, § 5; Cowperthwaite v. Sheffield, 3 N. Y. 251.) A general, custom not contrary to any statute may be proved, and all. parties are presumed to act in view of it. It becomes a part of every contract made within its scope. ( Wills v. Bailey, 49 N. Y. 464.)</p> <p>The check drawn by the maker, F. F. Wilder, to his own order and not indorsed, had the same effect and was negotiable in like manner as if made-payable to bearer. (Willets v. Phœnix Bank, 2 Duer, 121; Risley v. Phœnix Nat. Bank, 83 N. Y. 318; Central Bank v. Lang, 1 Bosw. 202; Evertson v. Nat. Bank, 66 N. Y. 14.) The delivery of the certified check by the maker to -the plaintiff for a valuable consideration operated as an assignment fro tanto of the funds in the hands of the defendant to the payment of the check, and the defendant by its certification became liable therefor. (Freund v. Imp. and T. B’k, 76 N. Y. 352; Risley v. Phœnix Nat. Bank, 83 id. 318; Brill v. Tuttle, 81 id. 454; Cooke v. State Nat. Bank, 52 id. 96; Willets v. Phœnix Bank, 2 Duer, 121.) The defendant, by its certification of the check, represented that it had funds of the drawer in its hands sufficient to meet the check, and engaged that those funds should not be withdrawn from it by thé maker; upon the transfer of the check to the plaintiff by the owner of the fund the obligation of the defendant was ■established. (Clews v. Bank of N. Y., 89 N. Y. 418; Cooke v. State Nat. Bank, 52 id. 96.)</p>

Appeal by Henry Spicer and others, defendants, from order of the General Term of the Supreme Court in the first judicial department, made December 31, 1886, which reversed an order of Special Term directing as to the disposition of surplus, money arising, on foreclosure sale herein. The material facts are stated in the opinion.

(Reported below, 42 Hun, 353.) The substance of the indictment and the material facts are stated in the opinion. But one crime is charged in the indictment within the provisions of the Code of Criminal Procedure. (Code Crim.

(Reported below, 36 Hun, •202.) This action was brought by plaintiff, who was mate of the barkentine owned by defendants jointly, to recover damages •alleged to have been caused by their negligence in omitting to provide him with proper and adequate medical attendance and •care when sick. The defendants, Yates and Metcalf, alone were served with the summons, and they appeared and answered separately.

<p>Under and by the provisions of the acts under which the New York and Brooklyn Bridge was constructed (Chap. 399, Laws of 1867; Chap. 601, Laws of 1874; Chap. 300, Laws of 1875), the bridge belongs to the two ¡cities of New York and Brooklyn, the trustees thereof are their agents, .and those employed by the trustees are the agents and servants of the .cities, for whose careless and negligent acts in performing the duties of .their employment the cities are liable.</p>

6, of the town of Gravesend, commanding them forthwith to pay to the petitioner or his attorney the costs included in a judgment obtained against them by the petitioner in an action brought by him to recover his salary, as a teacher, under a contract between him and said trustees, also costs on appeal from the judgment.

(Reported below, 19 J. & S. 467.) This action was brought to recover damages for in jmies caused by alleged negligence. The plaintiff, in August, 1885, was a steerage passenger on one of the steamships belonging to defendant, plyingbetweenRotterdam and Yew York. When at sea she fell on the deck of the vessel and fractured the knee-cap of one knee.

The facts appear sufficiently in the opinion. This appeal brings up for review these judgments only, and not the order denying the motion for a new trial, as no jurisdiction was conferred upon the General Term to review that order. (People v. Fowler, 55 N. Y. 675; Batterman v. Finn, 40 id. 340; In re Larson, 96 id. 381; Fiester v. Sheppard, 92 id. 251; Wright v. Hunter, 46 id. 309; Thurber v. Harlem Bdg. Co., 60 id. 326; Boos v. W. Mut. L. Ins.

The relators, who claimed to be the representatives of the “United Labor Party,” alleged in their petition in substance that said party at the next preceding election had nominated Henry George as its candidate for mayor in the city of Hew York, who received 68,110 votes; that the Board of Police- had appointed four inspectors of election to represent the Democratic and Republican parties, and deterpiined that said United Labor Party was not entitled to one of them; that…

General Term of the Supreme Court in the third judicial department, entered upon an order made May 6, 1884, which affirmed a judgment in… Held: “ 1st. That the clause inserted in the deed from the plaintiff to John D. Sloan was not an exception, reservation or condition, but was a covenant, the-deed having been accepted and the land therein described held by virtue thereof by the said John D. Sloan, such covenant was his covenant not to sell sand off the premises granted,…

(Reported below, 20 J. & S. 534.) This action was brought to recover the value of certain goods purchased by plaintiff at auction sale of the furniture and fixtures of the St. James Hotel, in the city of Hew York, which belonged to defendant. The, sale took place on the 24th and 25th days of April, 1883. It was conducted by an auctioneer under the direction of the defendant. The terms of sale were as follows: “ A satisfactory deposit required from all purchasers.

These were cross appeals from judgment of the General Term of the Supreme Court in the third judicial department, entered upon an order made the first Tuesday of May, 1885, which modified, and affirmed as modified, a judgment in favor of plaintiff entered upon a verdict. The nature of the action and the material facts are stated in the opinion. Defendant not having claimed there was any question of fact which should be sent to a jury cannot now insist there was one.

Page, deceased, to set aside and revoke letters of administration issued by said surrogate to the public administrator. The said intestate was a non-resident of this State; he died at Rutland, Yermont. The further facts appear in the opinion. The application for letters not having been made in pursuance of the notice authorized by statute, the surrogate had no power to grant the same. (N. Y. Con. Act, 1882, §§ 227, 228; Proctor v. Wanmaker, 1 Barb.

The material facts are stated in the opinion. The appeal to the General Term was authorized and the order was appealable. (Kincaid v. Richardson, 25 Hun, 237.) This was a special proceeding. (Code, § 1357; Wadley v. Davis, 38 Hun, 186 ; Belknap v. Waters, 11N. Y. 477.) The order appealed from affected a substantial right. (Betts v. Garr, 26 N. Y. 383 ; Baldwin v. Roberts, 30 Hun, 165.) The judgment, when docketed, became a judgment of the County Court.

(Beported below, 13 Daly, 229.) The nature of the action and the material facts are stated in the opinion. The term of a lease is fixed by the habendum clause, and cannot be increased by a covenant ■on the part of defendants alone. (McAdam on Landl. and Ten. 55, § 37; id. 187, § 103 ; Burchell v. Clark, 2 C. D. P. 88; Blair v. Osborne, 84 N. C. 419 ; 2 Platt on Leases, 47; 3 Washb. on R. P. [3d ed.), 372, 375, 436 ; W. Trans.

(Reported below, 13 Daly, 183.) The nature of the action and the material facts are set fortb in the opinion. The plaintiff, as the baileeof the defendant, had a hen upon the goods paramount to any claim of the latter. (Dows v. Greene, 24 N. Y. 638; Smith v. Smith, 2 Strange, 955 ; 2 Kent’s Com. 440, 558; 2 Blacks.

This action was brought to have a policy of life insurance, issued by defendant and which it claimed to be ¡void, declared existing and in force. Under the circumstances, the answer as to the age of the insured was the answer of the agent, and was consequently of the Insurance Company itself. (Am. Ins. Co. v. Mahone, 21 Wall. 152; Ins. Co. v. Wilkinson, 13 id. 222; Plant v. Catt. Ins. Co., 18 N. Y. 392; Rowley v. Emp. Ins. Co., 36 id. 550; W. Sav’gs B’k v. C. O. Ins.

(Reported below, 36 Hun, 247.) This action was brought against defendants as members of the firm of Mulford & Wandell, alleged to have come to their hands belonging to plaintiff. Mulford alone appeared and defended. The material facts are stated in the opinion. The cause of action set forth in the complaint was barred by the statute of limitations as against the defendant Mulford. (Code of Civ.

This action was brought to recover damages for the alleged diversion of the waters of a stream. The parties were owners of lands adjoining and on opposite sides of the stream. Upon defendant’s premises was a factory run by water taken from the stream through a race from a pond above. The tail race of the mill, as claimed by plaintiff, returned the water diverted from the stream to it at a point so far down the stream that none of it flowed past plaintiff’s premises.

The action was for the foreclosure of a mortgage made by one Fannie Gray, the material portions of which are hereinafter set out. Andres Deming, Ida McPherson, an infant, and Michael and Patrick Rollins,with others, were made defendants. The Messrs. Rollins answered, claiming title as purchasers in good faith and for a valuable consideration. Ida McPherson submitted her rights to the court asking that her interest be adjudged.

Appeal by defendant Deshon from a judgment of the-'General Term of the Supreme Court in the first judicial department, entered upon an order made March 27, 1885,, which affirmed a judgment against said appeallant and in favor of defendant, Margaret G. Westerfield,- entered upon a decision of the court on trial at Special Term. This was an action for partition.

made October 7, 1885, which affirmed a judgment in favor of defendants entered upon a verdict directed by the court. This was an action of ejectment to recover possession of certain lands situate in Cattaraugus county. The material facts are stated in the opinio The deed was void, for the reason that notice to redeem the premises from such tax sale was not published in accordance with the terms of the-statute.

<p>Appeal from judgment of the General Term of the Supreme Court in the first judicial department, entered upon an order made January 9, 1885, which affirmed a judgment in favor of plaintiff entered upon the report of a referee.</p> <p>This action was commenced June 20, 1882, to recover for building materials furnished and delivered by plaintiffs to defendant. The defense was the statute of limitations.</p> <p>It appeared that defendant in February, 1876, entered into an agreement with one Hoover, who was engaged as contractor in building certain houses, to do all the plastering for a sum agreed upon, payable in installments as the work progressed. Plaintiffs agreed to furnish the materials, defendant agreeing to pay therefor in cash as wanted. In pursuance of this agreement plaintiffs furnished, between March 1 and June 12,1876, materials from time to time as ordered. About that time Hoover became embarrassed and abandoned the work. The sub-contractors, and among them defendant, entered into an arrangement with Hoover to continue the work, and defendant delivered to plaintiffs three orders on Hoover, dated June 21, 1876, for sums aggregating the amount of their bill, payable, as the work progressed, from the sums coming to him under his contract. Defendant resumed his work, but in a few days abandoned it and refused to go on with the same.</p> <p>Plaintiffs’ account in this action is not a mutual open and current account under section 386 of the Code of Civil Procedure. (Peck v. N. Y. and L. S. S. Co., 5 Bosw. 226, 236; Green v. Disbrow, 79 N. Y. 1, 9.) An order given, intended to be payment in full, is not an acknowledgment of an existing debt. (Berrean v. Mayor, etc., 4 Rob’t. 538; Arnold v. Downing, 11 Barb. 554.) The admission or promise must be absolute. These orders are conditional. (Ross v. Ross, 6 Hun, 81.) The acceptance of a non-negotiable promise of payment does not suspend the remedy. (Gallery v. Prindle, 14 Barb. 186; Wait’s Actions and Def. 294, § 4; Franklyn v. Robinson, 1 Johns. Ch. 157; Mullett v. Shrump, 37 Ill. 107; Scouten v. Eislord, 7 Johns. 36.) The Code requires the acknowledgment or promise to be in writing, but does not alter the effect of a payment; however, the payment must be on account. (Henry v. Root, 33 N. Y. 528; Purdy v. Austin, 3Wend. 187; Bell v. Morrison, 1 Peters, 351; Stafford v. Bryan, 3 Wend. 532; Bloodgood v. Bowen, 4 Seld. 362.)</p> <p>Until after the 21st of June, 1876, the plaintiffs had no cause of action against defendant, and until then the statute of limitations did not commence to run. (Pursell v. Fry, 19 Hun, 595; Smith v. Velie, 60 N. Y. 111; Schack v. Garrett, 69 Penn. St. 144; Eliot v. Lawton, 7 Allen (Mass.) 274; Little v. Smiley, 9 Ind. 116.) The signing and delivery by defendant of the three orders on Wm. H. Hoover was an acknowledgment in writing sufficient with section 395 of the Code of Civil Procedure to take the case out of the statute of limitations. (Smith v. Ryan, 66 N. Y. 352; Henry v. Root, 33 id. 528; Wood on Lim. §§ 64-81; Irving v. Veitch, 3 M & W. 112.)</p>

This action was brought to recover damages for an alleged trespass and to compel the removal of the structures complained of.

(Reported below, 20 J. & S., 112.) This action was brought to restrain defendant from obstructing the sidewalk in front of his store in Yesey street, New York city. The material facts are stated in the opinion. The defendant did not. unlawfully obstruct the street. (People v. Cunningham, 1 Denio, 524, 530.) The obstruction of the highway is lawful when it becomes reasonably necessary for the transaction of business.

(Reported, below, 37 Hun, 104.) This action was brought to recover damages for injuries-alleged to have been caused by defendant’s negligence. The facts are sufficiently stated in the opinion. Assuming that the stake in question was a machine or apparatus within the meaning of the said rule, if there was any negligence either of the shipper of the lumber, or on the part of the co-employes of the plaintiff, this action cannot be maintained for such negligence.

(Reported below, 35 Hun, 57.) This action was brought to restrain the defendant from removing or interfering with a pipe which formerly conducted water from a spring on defendant’s premises, across an intervening lot to the premises of plaintiff, and from in any manner interfering with the flow of water through said pipe. The material facts are stated in the opinion.

(Deported below, 19 J. & S. 32.) The nature of the action and the material facts are stated in the opinion. Having obtained plaintiff’s signature to the instrument upon statements of certain facts, which limited its operation to certain alterations, defendant cannot now extend it beyond those alterations so as to cover others. (Meyer v. Lathrop, 73 N. Y. 322.) The instrument does not constitute a contract, because there is no consideration to support it. (First Nat.

June 29, 1885, which affirmed a judgment in favor of plaintiff entered upon the report of a referee. This action was brought to foreclose a mortgage executed by defendant Clark. The facts are sufficiently set forth in the opinion. The machinery had been put upon the real estate for pianufactnring purposes, and as such became a part of the real estate. (McRae v. Cent. Bk., 66 N. Y. 489.) In equity partnership real estate is considered personal property.

The facts, so far as material, are stated in the opinion. It was error to receive evidence of what McCarthy said and did when confronted with the deceased, in Driscoll’s absence, some time subsequent to the shooting. (Greenfield v. People, 85 N. Y. 88; People v. Murphy, 101 id. 127; Lonergan v. People, 6 Park. Cr.

Appeal by defendant Jacob Sharp from a judgment of the General Term of the Supreme Court in the First Department, affirming a judgment of the Court of Oyer and Terminer of New York county, upon a conviction of defendant •of bribery. The facts fully appear in the report of the case at General Term, ante, p. 388.

<p>A surrogate who, as such, receives the money of private individuals, is not. absolutely responsible therefor; he is only responsible for good faith and reasonable diligence.</p> <p>Where, therefore, pursuant to an order of the court, surplus money, arising-on foreclosure sale of land belonging to an intestate’s estate, was paid-over-to a surrogate, and was by him deposited in good faith with a private-banker in good standing and credit, doing a general banking business, pending proceedings to determine the parties entitled thereto, and before-the termination of such proceedings the banker failed and his estate proved to be largely insolvent. Held, it appearing there was no negligence on the part of the surrogate, that the sureties on his official bond were, not liable for the loss.</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 plaintiff entered upon a verdict. (Reported below, 36 Hun, 446.)</p> <p>The nature of the action and the material facts are set forth in the opinion..</p> <p>A power to borrow must be clearly shown. All the presumptions are against it. Factors and consignees entrusted with goods for sale have no right, in addition to owing their principals for proceeds, to involve them by additional obligations. (1 Chit. on Cont. [4th ed. 1874], 293; Hawtayne v. Bourne, 7 M. & W. 595 ; Ricketts v. Bennett, 4 C. B. 686; Rossiter v. Rossiter, 8 Wend. 494; 1 Pars. on Cont. 42, 43, note e; Tucker v. Woolsey, 64 Barb. 142; Bank v. Buckbee, 1 Abb. Ct. App. Dec. 86; 3 Keyes, 461; Bates v. First Nat. Bk., 89 N. Y. 286; Tallmage v. Third Nat. Bk., 91 id. 531; The Julia Blake, 107 U. S. 418; McCready v. Thorn, 51 N. Y. 454.) Guenin being simply an agent, could not have conferred any powers upon Bickford to bind the defendants. His sending him out to sell goods was probably ratified, but this did not involve a power to borrow money on the credit of the principals. (2 Kent, 633; Newton v. Bronson, 13 N. Y. 587; Lewis v. Ingersoll, 3 Abb. Ct. App. Dec. 55; 1 Keyes, 347.) Guenin would have been a competent witness to prove what Bickford’s authority was, but his statements and declarations were not competent, as they were not a part of the res gestee. (White v. Miller, 71 N. Y. 118; Alexander v. Cauldwell, 83 id. 480, 486.) When there is no evidence of custom to interpret a vague authority conferred upon agents, and no conflict of evidence ‘as to what the employment was, the question as to whether any particular transaction is within the scope of the agent’s apparent authority is one for the court, not the jury. (Millbank v. Deniston, 21 N. Y. 386; Ruis v. Renauld, 100 id. 256.)</p> <p>The right to borrow money was within the apparent scope of Hr. Bickford’s authority, and the plaintiff had a right to rely upon that apparent authority. (Hearne v. Keene, 5 Bosw. 570; Pentz v. Stanton, 10 Wend. 271.) The defendants are estopped from denying the authority of the agent, Bickford, to borrow money for their business by their acquiesence in such borrowing for nearly seven years with knowledge of the fact. ( Wood v. Auburn R. R. Co., 6 N. Y. 167; Huncken v. Knocke, 23 W. Dig. 17.) The question, whether the authority under which Bickford acted, included the right to borrow money was a question of fact for the determination of the jury, the evidence being conflicting. (Code of Civ. Pro. § 1337; In re Ross, 87 N. Y. 514; Davis v. Clark, id. 623 ; Marx v. McGlynn, 88 id. 357; Hewlett v. Elmer, 103 id. 157; In re Will of Darrow, 95 id. 668.) The powers of a general agent are co-extensive with the business entrusted to his care, and will not be narrowed by limitations not communicated to the person with whom he deals, (Ins. Co. v. Wilkinson, 13 Wall. 222; Pechner v. Phœnix Ins. Co., 65 N. Y. 207.)</p>

The nature of the action and the material facts are'stated in the opinion. Plaintiff was clearly chargeable with contributory negligence, in not looking easterly while he was going through the opening in the train of box cars, or when emerging through such opening, or while he was walking across the clear open 'space between the two tracks.

The nature of the action and the material facts are stated in the opinion. Whatever the relations of Miller & Faulkner, as between themselves, as to third persons, they were by reason of Miller’s acts and declarations to those dealing with the business jointly liable as partners.

(Reported below, 13 Daly, 195.) The nature of the action and the material facts are stated in the opinion. The plaintiff had a right to recover damages in consequence of the failure of the defendant to return the premises in condition fitted for dwelling purposes, as he had received them.

(Reported below, 13 Daly, 286.) This action was brought against the defendants, Joseph Kuntz, Louis F. Kuntz and Michael Kuntz, about the 1st day ot January, 1882, and an amended complaint therein was served in the latter part of March, 1884.

(Reported below, 20 J. & S. 77.) This action was brought to recover damages for a breach of a contract of employment. On the 9th of February, 1884, the defendant engaged the plaintifE “ for his business in essential oils and essences for one year,” from the 6th of February, 1884, for the yearly wages of $1,800, in weekly payments of $37.50.

(Reported below. 35 Hun, 118.) This action was brought to recover an alleged over-payment by which defendants contracted to sell and plaintiffs to purchase 10,000 tons of coal. A disputed question of fact on the trial was as to the price agreed to be paid. The referee found, as ,a fact, that plaintiffs’ claim was correct.

<p>S. died, leaving his wife and four daughters surviving him. By his will he directed his executors to divide one-half of his residuary estate, real and personal, into four equal parts, which he gave to said executors in trust to receive and apply the rents and profits to the use of the testator’s wife during her life; after her death the rents and profits of one of said parts to the use of each of his said children during life, and upon her death ‘ to pay over, transfer and deliver the principal of said one-fourth part, together with any arrears of income " to her heirs, or to such person or uses as said daughter “ may by her will appoint.” The other half he directed his executors also to divide into four parts and to give one to each of the testator’s said children. The will also provided that any moneys advanced to either of said children and charged in the testator’s books of account against her share in the estate, should be deducted “ from the sum bequeathed to such daughter in this section.” The will also empowered the executors “for the purpose of carrying into effect ” the will and the trusts therein created, to sell “ in their discretion” any and ■ all of the real estate. In an action for partition of certain real estate of an interest in which the testator died, seized, and which was included in said residuary clause, held, that an infant child of one of the daughters was not a necessary or proper party defendant under the Code of Civil Procedure (§ 1588); that she never could take the real estate, and had no title thereto or interest therein as realty, but that the whole title vested in the executors and trustees ; that, construing all the provisions of the will together, the direction to sell the real estate was imperative and there was, therefore, an equitable conversion thereof into personalty.</p>

<p>Under the provision of the act of 1857 (§ 3, chap. 456, Laws of 1857), in reference to the taxation of the capital stock of certain corporations, which provides that such stock, after certain specified deductions, “ shall he assessed at its actual value and taxed in the same manner as the other-personal and real estate of the county,” the method of ascertaining the actual value is left- to the judgment of the assessors, and they have a right to resort to any and all of the tests and measures of value which were ordinarily adopted for business purposes in estimating values.</p> <p>When the assessors have so exercised their judgment it is subject to no review or correction, except as prescribed by law.</p> <p>Accordingly, held, that in making such an assessment, the assessors were not limited to the market value of said stock less the statutory exceptions, and where they took as the measure of value the “hook value,” i. e., estimating all the assets as they appeared on the corporate hooks, deducting all the liabilities and other matters required to be deducted by law, that their action, if it did injustice to the corporation, was subject to review in the Supreme Court under the act of 1880 (Chap. 269, Laws of 1880); but that this court had no power to interfere with the assessment.</p>

This action was brought to procure the sale or partition of certain premises in the city of Hew York, and a division or distribution of the proceeds among the parties to the action, as their interest might appear. A sale was ordered and Bern heimer became purchaser at the price of $10,125. In compliance with the conditions of the sale he paid to the referee ten per cent on the amount bid by him, viz., $1,012.50, and agreed to pay the residue on June 11, 1887.

Appeal, by Mary A. A. Livingston, from order of the General Term of the Supreme Court in the first judicial department, made October 26, 1887, which affirmed an order of Special Term denying the petition of the appellant, praying that an order be made directing the payment to the petitioner of the accumulation of interest, dividends and income of the two funds mentioned in her petition. The nature of the two funds and how arising is set forth in the opinion.

This action was brought upon two notes issued to plaintiff by Henry A. Mann, then treasurer of the county of Saratoga, of one of which notes the following is a copy: ' “ Ho. 67.

<p>Appeal from judgment of the General Term of the Supreme Gourt, in the first judicial department, entered upon an order made May 29, 1885, which affirmed a judgment in favor of defendant entered upon a verdict directed by the court.</p> <p>The nature of the action and the material facts are stated in the opinion.' ,</p> <p>The instrument in question was a continuing guaranty. (Agawam Bk. v. Stern, 18 N. Y. 510, 511; City Nat. Bk. v. Sherill, Hill and Denio, Supp. 219; Merchant's Nat. Bank of Whitehall v. Hall, 83 N. Y. 343, 344; Toothe v. Elgutter, 45, Am. R, 103; Gates v. Johnson, 24 N. Y. 64; Scott v. Myall, 60 Am. Dec. 487; Lowe v. Beckwith, 58 id. 659; Menard v. Scudder, 56 id. 610, 611; Hotchkiss v. Barnes, 34 Conn. 27.) If the language was in doubt then the evidence to explain what was apparently intended was proper, and the question on this point should have gone to the jury. ( White’s Bank v. Myles, 73 N. Y. 335; Gates v. McKee, 13 id. 232; Evansville Nat. B’k v. Kaufmann, 93 id. 281.)</p> <p>A contract of guaranty is to be construed, with the object of arriving at the intention of the parties. (Morgan v. Boyer, 39 O. St. 326; Bank v. Kaufmann, 93 N. Y. 273, 281; Rindge v. Judson, 24 id. 64, 70; Crist v. Burlingame, 62 Barb. 351, 356; Lawrence v. McCalmont, 2 How. [U. S.] 426,449.) To ascertain the intention of the parties in the action at bar, attention should not be restricted to the single clause “ I will guarantee the payment of any goods which you may sell him,” which forms only part of a sentence conveying but a single indivisible idea. ( White’s Bank v. Myles, 73 N. Y. 235; Knowlton v. Hersey, 76 Me. 345 ; Morgan v. Boyer, 39 O. St. 324.) Guaranties like other contracts are subject to all the limitation expressed therein, and also to all such as may be fairly implied from their language. (Bank v. Kaufmann, 93 N. Y. 273, 282; Rindge v. Judson, 24 id. 64; Douglas v. Reynolds, 7 Pet. 122; Baylies on Sur. & Guar., etc., § 124.) When no time is fixed and nothing in the instrument indicates a continuance of the undertaking, the presumption is in favor of a limited liability as to time. (Fellows v. Prentiss, 3 Denio, 512, 519; Crist v. Burlingame, 62 Barb. 351, 358; Baylies on Sur. & Guar., etc., § 7.) Bank v. Hall, 83 N. Y. 338; White’s Bank v. Myles, 73 id. 335; Bell v. Buen, 1 How. [U. S.] 169, 186; Bank v. Kaufmann, 93 N. Y. 273, 284; Morgan v. Boyer, 39 O. St. 324.) The fact that the guaranty is unlimited in amount raised a legal presumptive that it was not intended to be unlimited as to the time, but was to be confined to the first lot of goods sold. (Rogers v. Warner, 8 John. 192; Whitney v. Groot, 24 Wend. 82; Morgan v. Boyer, 39 O. St. 324.) The words “ any ” or “ all ” do not determine the nature of a guaranty. (Rogers v. Warner, 8 John. 119; Whitney v. Groot, 24 Wend. 82 ; Morgan v. Boyer, 39 O. St. 324; White v. Reid, 15 Conn. 457; Craemer v. Higgiman, 1 Mason, 323; Rapelye v. Barley, 5 Conn. 149.) There was no such ambiguity in. the guaranty involved in this suit as required the court to go into the evidence of all the attending-circumstances. (Crist v. Burlingame, 62 Barb. 355, 356 ; Lawrence v. McCalmont, 2 How. [U. S.] 426; Rindge v. Judson, 24 N. Y. 64, 70.)</p>

The nature of the action and the material facts are stated in the opinion. The defendant cannot escape or shift its liability by proof that it intrusted the performance of the duty to provide a competent foreman to communicate its orders, and to furnish and maintain suitable, adequate, safe and perfect machinery, implements and appliances necessary to be used by the plaintiff in its business, to an agent or servant.

<p>This is a motion to dismiss an appeal as irregular and void for the reason that the judgment from which said appeal purports to be taken, was satisfied of record before the service of notice of appeal.</p> <p>Judgment was.recovered by plaintiff against defendant in the Court of Common Pleas on April 4, 1887, for $3,528.26, from which the defendant took an appeal to the General ■Term of said court, where the judgment was affirmed, and on June 10,' 1887, a judgment of affirmance thereof and for $84.24, costs of said appeal, was entered.</p> <p>On June fifteenth the defendant voluntarily paid both of said judgments, applied to plaintiff’s attorney for, and received satisfaction pieces thereof, and on 'the same day filed the same and caused said judgments to be satisfied of record. No process had been issued or proceeding taken to enforce payment of said judgments. On September 27, 1887, the defendant served notice of appeal to this court.</p>

This action was brought by plaintiffs, the infant children of Friedrich Wuesthoff, deceased, upon a policy of insurance upon the life of their father, payable to Amelia, his wife, or, in case of her death before his, to their children. The material facts appear in the opinion. This suit was properly brought by the plaintiffs, they, as infants, being represented by their guardian ad litem. (Segelkin v. Meyer, 94 N. Y. 473; Higgins v. Hannibal & St. Jo.

” The material facts are stated in the opinion. The subway act of June 13, 1885, as amended by chapter 503 Laws of 1886, is a local bill and violates section 16, article 3 of the Constitution of this state. (People ex rel. v. Albertson, 55 N. Y. 55; Ohio ex rel. v. Covington, 29 Ohio, 110; Dist.

Abraham ¡R. Lawrence, Justice said Oourt,” the nature of which, as well as the material facts are stated in the opinion. The appeal was properly taken in the name of the appellant. (People ex rel. Munsell v. Court of Oyer and Terminer, 101 N. Y. 245 ; People ex rel. N. Y. Society, etc. v. Gilmore, 88 id. 626 ; People ex rel Lawrence v. Grady, 56 id. 182.) The appeal was not properly taken. (Code Crim. Pro., § 519 ; Code Civ. Pro., §§ 2058, 2059.) ’

for the city and county of ¡New Tort,, entered upon an order made ¡November 6, 1885, which affirmed, á judgment in favor of plaintiff entered upon a decison of the-court on trial without a jury. This action was brought to compel a specific performance on the part of defendant as - lessor of certain covenants in a. lease executed by it to Thomas Kiernan. The material portions thereof are set forth in the opinion,.. which also contains a substantial statement of the facts.

<p>In an action to recover damages for personal injuries caused by defendant's negligence, where no evidence is given as to the circumstances and condition in life of the plaintiff, his earning power, skill and capacity, no damages for future pecuniary loss can be awarded.</p>

<p>An ex pa/rte order was made by a justice of the Supreme Court for the. examination of one of defendant's officers before trial. Upon motion made before another justice on the papers on which the order was granted, and other affidavits and papers, the order was vacated. The justice who granted the first order was a member of the General Term which heard an appeal from the second order. Held, that as the first order was not under review by the General Term, the objection that the court, as constituted, was violative of the constitutional prohibition against a judge or justice sitting in General Term in review of a decision made by him was not tenable. (State Const., § 8, art. 6.)</p>

<p>"Where one who ought to have been, but was not, joined as a party plaintiff in an action dies before the trial, and the plaintiffs named fully own and represent the cause of action, the fact of such death may be proved in reply to a plea in abatement, setting up the non-joinder.</p>

<p>A mortgage upon real estate in the city of Brooklyn contained a provision-requiring the mortgagor to pay all taxes, charges and assessments on the premises, and in default thereof the mortgagee was authorized to pay the same “with any expenses attending,” and any amount so paid was made a lien upon the premises. In an action to foreclose the mortgage it appeared that there were numerous taxes and assessments charged upon the premises which the mortgagor did not pay, some of which were-illegal; that the mortgagee employed an expert to investigate and. determine what were legal and to see that proper deductions were made for the illegal charges, agreeing to pay him twenty-five per cent of the amount he might succeed in having deducted. The mortgagee paid the legal liens and the percentage so agreed upon. Held, that the latter was a proper item of expense, and when paid became a lien upon the mortgaged premises ; and that a tender which did not include such item was-insufficient.</p>

This was a motion to dismiss the appeal herein on the ground that the time for appealing had expired when notice was served.

This action was brought to restrain defendant from discharging surface waters collected on his lands through an artificial ditch or drain, which this complaint alleged he had dug for that purpose upon plaintiff’s lands, and to recover damages.

Defendant contracted to sell and deliver to one Frank, plaintiff’s assignor, 1,500 drag sawing machines. The contract contained a provision that in case defendant should fail to manufacture and deliver the machines as provided for and should remain in default for thirty days after written notice, then that Frank, without further notice, might sue and recover of plaintiff four dollars for every machine not delivered.

<p>It seems an agreement by a third person with an out-going member of a firm to relieve him from and indemnify him against the firm debts, where no consideration passed to the promissor, cannot be enforced against him by a creditor of the firm.</p> <p>It seems,'also, such an oral agreement is void under the statute of frauds.</p>

This action was brought by plaintiff, a corporation organized under the laws of New Jersey, upon a promissory note made by defendant. ‘

This action was brought to recover damages alleged to have been sustained by reason of the breach of a copartnership agreement. The alleged agreement was for a copartnership for one year in the flour business, defendant to furnish the capital and plaintiff to manage the business.

This was an action to recover damages for alleged breach of a contract to purchase a quantity of iron.

<p>Where a married couple had separated, and pending an action for limited divorce brought by the wife against the husband, a settlement was agreed upon between them, and a contract entered into in pursuance thereof, to the effect that the property of the husband should be sold, and after payment of his debts, one-third of the proceeds remaining should be paid to the wife, and that they should live separate. Held, that the contract was valid, and an action was maintainable to recover the portion of the proceeds so agreed to be paid to her.</p>

This action was brought to restrain the foreclosure by advertisement of a mortgage executed by one Day and wife to defendant Heath, and by him assigned to defendant Lang-ford. Day conveyed the land to plaintiff by warranty deed, representing that it was free from all incumbrances.