Volume 108 — New York Reports

Seaver, as justice of the peace of the village of Canton, under which order the relator was imprisoned in the Onondaga County Penitentiary, to be void, and directing that said relator be discharged. (Eeported below, 42 Hun, 273.) These proceedings were by habeas corpus to inquire into the cause of such imprisonment.

<p>Under and in pursuance of authority conferred on it by statute (Chap. 141, Laws of 1828, and Chap. 238, Laws of 1862), defendant acquired title to certain lands “for the purpose of a highway,” made a turnpike road, and subsequently constructed a street railway upon said road, so near one side thereof, that no vehicle could pass between the railway and that side of the road, the rails also were raised above the surface of the street, ■so as to impede passage across them. Plaintiff, by proceedings authorized by its charter, acquired title to a portion of said road for a public street. No appeal was taken by defendant therein, and it received the compensation awarded to it. Plaintiff's common council passed an •ordinance directing defendant to remove its railway tracks and replace them with rails laid flush with the grade of the street, and so as to leave a passage-way on each side thereof. Held, that the acquiescence by defendant in the order made in said proceedings, and the acceptance of the sum awarded to it estoppéd it from objecting, if any objection in fact existed, to the exercise by the city of a control over the road, the same as over other city streets; and that plaintiff was entitled to judgment requiring defendant to comply with said ordinance.</p> <p>Jt seems that the privileges granted defendant by the legislature were within its control, and were subject to the right of eminent domain.</p>

This action was brought to foreclose a mortgage executed to plaintiff by one Elizabeth L. Campbell, individually and as executrix of Parson G-. Shipman, deceased. She was formerly his widow, and the question upon which the appeal turns-relates to her authority as executrix. His will directed: First. That his debts and funeral expenses should be paid by his executrix. Then followed these words: “ Second.

<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 modified and affirmed as modified a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term. (Reported below, 36 Hun, 112).</p> <p>The nature of the action and the material facts are stated in the opinion.</p>

<p>In the absence of a covenant to rebuild, the landlord has no right to enter upon the demised premises and take possession, to the exclusion of the tenant, for the purpose of rebuilding.</p> <p>If the tenant, however, makes no objection, it will be deemed a license from him to the landlord to re-enter for the purpose of rebuilding, and when the new structure is completed the tenant has the right to enter into possession thereof and retain it for the term.</p> <p>A new agreement between landlord and tenant will not operate as a surrender of an unexpired term unless by the creation of a new term inconsistent with the existing lease, an intent to surrender can be clearly implied from the new agreement.</p> <p>Defendant leased of plaintiff certain premises in the village of S. for a term of three years. On one end of the lot was a wooden building occupied by defendant as a store. During the first year of the lease the store was destroyed by. fire. Plaintiff erected in place of the building destroyed a much larger and more expensive building of brick. Defendant immediately after the fire erected a shanty on the lot and continued to occupy it as a store until the new store was completed, in which he thereafter continued his business; he promised orally to pay an increased rental. In summary proceedings to remove defendant because of non-payment of such additional rent held, that the new agreement did not operate as a surrender of the old term; that if it could in any way be held to have been intended to effect a new lease it was for the unexpired term, and as such a term could not be created by paroi (2 R S. 185, § 8,) there was no new lease and so no surrender of the old lease by operation of law; that said new agreement" was simply an executory one, without consideration, to alter the terms of an existing unexpired lease where no breach had occurred, and so it was void; that, therefore, the old lease remained in force and plaintiff was not entitled to judgment.</p> <p>It was claimed that, as part of the paroi agreement, the landlord surrendered his claim for rent during the time the new building was being erected, and that this furnished a good consideration for the new agreement. Held untenable; that as the rent was payable under defendant's covenant a paroi unexecuted agreement to discharge the claim was inoperative and void.</p> <p>By the paroi agreement the tenant was allowed to put fixtures into the new building and apply the cost thereof in payment of rent. Held, that this furnished no consideration.</p>

This action was brought to recover for certain work alleged to have been done by plaintiffs as “ extra work ” in the performance of a contract for the construction of part of defendant’s road. The material facts are stated in the opinion.

This action was brought by plaintiff, as assignee of James J. McCormack, to recover awards made for lands of the assignor taken under the act (Chap. 559 Laws of 1871), for the improvement of ¡North Second street, in the city of Brooklyn.

<p>The rules determining the subjects upon which experts may testify and prescribing their qualifications are matters of law, but whether a witness ’ offered as an expert, has those qualifications is generally a question of fact to be decided by the trial judge, and his decision will not be held to present an error of law requiring a reversal, unless it is against the evidence or wholly or mainly without support in the facts appearing in the case.</p> <p>In an action upon a policy of marine insurance where a question was as to the value of the vessel insured, a witness called by defendant as an expert and who showed himself qualified to speak as such, testified that he knew the vessel insured and had been on board of her many times, but not within the last five or six years; also, that he thought he was able from his experience and personal knowledge and the personal examination he had made, to form an opinion as to her value at the time of the loss. He was then asked his opinion as to her value at that time, judging from his personal knowledge and observation and his knowledge of the ordinary results of ordinary wear and tear. It did not appear what the condition of the vessel was in at the time the witness last saw her, but it had been proved that since that time plaintiffs’ had expended at least $7,000 in repairing her. Held, while it would not have been erroneous to have received the testimony, the exclusion was not error as matter of law; that it was a fair subject for the judgment of the trial court and its decision thereon was not reviewable here.</p> <p>An expert called to testify as to the value of a vessel, is not confined to an opinion based upon his personal knowledge. He may speak from information obtained from the general records, containing descriptions of vessels, used and resorted to by ship brokers and owners and underwriters in their business. He may also give his opinion in answer to hypothetical questions based on the evidence in the case.</p> <p>It seems the court will take judicial notice that the books of general record giving the descriptions and standing of all ships, known as “ The American Lloyds,” “The Green Book” and “The Record Book,” aré referred to by business men for the purpose of ascertaining the condition, capacity, age and value of ships.</p> <p>A witness called as to the value of the vessel, was asked, “Do you know what would be a fair market-value in the port of New York of the vessel in question?” This was objected taon the ground that the witness had no personal knowledge. The objection was overruled and the witness answered “ Yes.” Thereafter the witness was permitted, without further objection, to testify to the market-value. Held,, the question objected to was merely preliminary and no error was committed in permitting it to be answered, even if the witness was not qualified to testify as to value.</p> <p>Where the meaning of a word or phrase, as used in a business, has been settled by a decision of this court, it will be assumed that when used in contracts, made after the decision was pronounced and published, it was used with the meaning so given, and testimony showing that it has a different meaning is incompetent.</p> <p>Where in an action upon a policy of marine insurance the defense is that the vessel insured was lost through the agency or instrumentality of the assured, the burden of proof upon this issue rests upon defendant.</p>

A upe at, from judgment of the General Term of the Supreme Court in the third judicial department, entered upon an order made July 11, 1887, which affirmed a judgment of the Court of Oyer and Terminer in and for the county of Columbia, entered upon a verdict convicting the defendant of the crime of murder in the first degree. (Reported below, 45 TIun, 422.) The material facts are stated in the opinion.

<p>Appeal from judgment of the General Term of' the City Court of Brooklyn, entered upon an order made October 26, 1885, which overruled plaintiff’s exceptions ordered to be heard at first instance at General Term, and directed judgment upon a verdict.</p> <p>The nature of the action and the material facts are stated in the opinion.</p>

<p>Plaintiff while traveling on a regular train on defendant’s railroad on a free pass, was injured by a collision caused by defendant’s negligence. Upon the pass was an indorsement to the effect that, in consideration of receiving it, the holder assumed all risks of accident and agreed that' the company should “ not be liable under any circumstances, whether by negligence of their agents or otherwise,” for injury to his person or property, and that in the use of the pass he would “not consider the company as a common carrier or liable to him as such.” In an action to recover 'damages for the injury, it appeared that plaintiff had purchased a ticket entitling him to a seat in a drawing-room car upon the train, from the drawing-room car conductor. It was stated in the check given for the seat that it “ with passage ticket or fare” would be taken up by the train conductor. Held, that this did not make plaintiff a passenger for hire and did not have the effect to annul or vary, for the trip, the contract made by the pass and its indorsement; that assuming such a purchase of a seat ticnet has the same force and effect as if purchased from the train conductor (as to which quaere), it had no effect upon the status of the purchaser as a passenger; that the purchase of a right to enjoy particular and exclusive accommodations during the trip, whether made with defendant or otherwise, did not entitle him to transportation, and so long as the pass was used to secure transportation, did not in any way affect the validity of the agreement expressed therein.</p> <p>Thorpe v. H. Y. O. & H JR. JR. R. Co. (76 1ST. Y. 402) distinguished.</p> <p>JJlrich v. H. Y. O. & H. R. R. R. Co. (13 Daly, 129) reversed.</p>

and for the city and county of Mew York, entered upon an order made May 15, 1884, which affirmed a judgment in favor of plaintiff entered upon the report of a referee. The nature of the action and the material facts are stated in the opinion.

This action was brought to compel the surrender and cancellation of record of a grant by plaintiff to defendant of an -easement, i. e., a right of way for its road over certain premises owned by plaintiff, on the ground of fraudulent representations which induced the grant.

This action was brought among other things : (1.) To compel the defendant to discontinue the abandonment of a part of its street railroad in the town of New Utrecht. (2.) To prevent it from using the rest of the highways in the town, unless and until it maintains and operates the whole of its said railroad.

<p>Appeal from order of the General Term of the Supreme Court in the first judicial department, made March 31, 1881", which affirmed an order of Special Term dismissing a writ of alternative mandamus requiring defendants, as the board of police of the city of ¡New York, by resolution of the board, to relieve and dismiss the relator, a policeman, from the police force and place him on the roll of the police pension fund and and to award him a pension, or to show cause, etc. (Reported below, 44 Hun, 24.)</p> <p>The material facts are stated in the opinion.</p>

Appeal by C. Bainbridge Smith, defendant’s attorney, from an order of the General Term of the Supreme Court in the first judicial department, made June 1, 1886, the substance of which order, as well as the material facts, are stated in the opinion.

<p>Appeal from order of the General Term of the Supreme Court in the fifth judicial department, made October 21, 1887, which affirmed an order of Special Term, the nature of which and the material facts are stated in the opinion.</p>

This action was in the nature of a creditor’s bill, to reach certain property alleged to have been transferred to defendant, Hattie Decker, in fraud of the creditors of defendant, Simon Decker. It appeared in the case and the referee found substantially these facts: Prior to December 21, 1865, plaintiff had commenced an action against her husband, the defendant, Simon Decker, .for a limited divorce on the ground of cruelty and ill-treatment.

<p>A structure above ground, arranged and intended solely as aplace for the permanent interment of the dead, is not a ‘ ‘ building ” within the meaning of the provisions of the Penal Code (§§ 498, 504), defining the crime of burglary in the third degree, nor is it an “ erection or enclosure” within the provision (§ 504), specifying what the term ‘ ‘ building, ” as used in the chapter in relation to burglary includes; and an indictment for that offense cannot be sustained by proof of the breaking and entering such a structure. The phrase “ erection or enclosure,” as so employed, it seems refers to structures of the character used by mankind for the purpose of sheltering or transferring property, or of trade or commercial intercourse.</p> <p>People v. Richards (44 Hun, 378) reversed.</p>

This action was brought to recover damages for personal injuries sustained by plaintiff from falling into an area in front of a dwelling-house on one of defendant’s streets. ■Plaintiff 'alleged negligence on the part of defendant in allowing the area to remain open and unfenced. It appeared ■that there was a stone wall or parapet about a foot high and fourteen inches wide along the outer edge of the sidewalk in front of the area.

(Reported below, 33 Hun, 611.) This action was brought by the plaintiffs as beneficiaries under a mortgage executed to Jasper Waterman by the defendant Webster, for the purpose of cancelling of record a discharge of said mortgage and for the foreclosure of the mortgage, to enforce payment of the sum of $859.89, which they claimed to be due.

<p>Appeal from an award of the board of claims made March 9, 1887.</p> <p>The claim was for damages for the death of Michael Bowen, plaintiff’s intestate, alleged to have been caused by the negligence on the part of the state officers having charge of the Erie canal in leaving the railing of a bridge in a dangerous and insecure condition.</p> <p>The material facts are stated in the opinion.</p>

(Eeported below,. 19 J. & S. 321.) This action was brought upon a promissory note for $1,500,. dated April 10, 1880, made by the firm of Joy & Martin and indorsed by the defendant Silberstein, who alone answered, setting up as a defense that the note was indorsed by him for the accommodation of the makers, and that the time of payment was extended by an agreement made without his consent between them and plaintiff. The material facts are stated in the opinion.

<p>Appeal from judgment of the General Term of the Supreme' Court in the second judicial department, entered upon an order made September 14, 1885, 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>

(Reported below, 21 J. & S. 286.) This action was brought to compel defendant to remove? from certain lots belonging to plaintiff, situate in the city of Hew York, a quantity of rocks or boulders placed thereon by defendant. The material facts are stated in the opinion.

<p>P. and 0. entered into a written agreement to the effect that P. might use the name of C. in the firm oí P. & Co. in the business of banking; C. not to participate in the profits or losses, except that he was “ to have for his share of the profits ” ten per cent per annum on all deposits made by him in the office. P. also covenanted to keep 0. “harmless from all losses, debts, dues, or demands that may come against said firm,” and upon dissolution of the firm P. to return to C. all of his deposits, with-the ten per cent per annum. In an action by 0., as surviving partner upon a promissory note alleged to have been given to the firm, it appeared that P. and plaintiff did business under and in pursuance of the agreement until the death of P. and that the note formed part of the assets. Hdd, that the agreement, when acted upon, formed a valid partnership between the parties; that the agreement to pay the percentage was not absolute but conditional upon there being profits to that amount from which the payment could be made, and whatever sum plaintiff became entitled to under it was payable to him as profits; that plaintiff became liable for losses or debts from the moment the agreement was signed and business done under it; that the covenants against losses and debts was not one to prevent such liability, but merely one of indemnity.</p> <p>Also, held, that as plaintiff was not entitled to any interest unless it arose from profits,' and in the absence of evidence of knowledge on his part that there were no profits on any occasion when interest was credited to him, the court properly refused to charge the jury that if it should find that the contract was a device to cover usury plaintiff could not recover.</p>

<p>Where, under and by virtue of proceedings in inmtum under the statute, land is condemned to the use of a railroad, the transaction when perfected operates as a statute transfer to the corporation, and in a legal sense it is a purchase and sale of the land or of the interest authorized to be taken.</p> <p>Defendant and her three sons entered into copartnership and purchased for firm purposes certain premises, taking the title as tenants in common; the consideration, however, was paid by defendant. Upon dissolution of the firm, the sons conveyed their interest in the premises to defendant, who leased them for ten years to two of the sons, with a reservation to the lessor of a right to terminate the lease on sale of the premises. Defendant covenanted, in case the lease was so terminated, or if the premises should at any time be sold she would, after deducting the sum advanced by her on the original purchase, pay over to each of her sons one-fourth of the residue. After the expiration of the lease, a small portion of the premises was taken by proceedings in invitum for railroad purposes, and defendant received the compensation awarded, which was more than sufficient to reimburse to her what she had advanced. Held, that the contract applied to a sale wherever made, whether during the existence of the lease or at any time thereafter; that the taking was a sale within the meaning of the contract; that the conveyance by the sons was a good consideration for the covenant; and that a sale of the whole premises was not a condition upon which defendant’s liability to account depended; but that liability was created whenever, by a sale of a whole or any part, the proceeds exceeded the sum advanced.</p> <p>Also, held, that a separate action was maintainable by each of the sons to recover his share of the surplus.</p> <p>Defendant, after notice by the railroad company of its intention to take the land, leased the premises to another son for the purpose of diverting a part of the compensation to be awarded, from herself to the lessee; and an award was made to the latter for the valu'e of his leasehold interest. Held, that the amount so awarded less the cost of new buildings and repairs made by the lessee was justly regarded as compensation received by defendant.</p>

<p>Appeal from decision of the Board of Claims, made March 9, 1887, dismissing a claim by appellant for damages for the death of her intestate William H. Splittorf, alleged to have been caused by the negligence of the officers of the state having charge of its canals, in failing to properly close and secure a swing-bridge on its lands.</p> <p>The material facts are stated in the opinion.</p>

^Z7 Appeals from orders of the General Term of the Supreme Court in the second judicial department, made Hay 14, 1885, which reversed judgments in favor of plaintiffs, entered upon decisions of the court on trial at Special Term. These actions were brought to foreclose two purchase-money mortgages executed by defendant Cooney upon certain premises situate in Queens county.

<p>Appeal from judgment of the General Term of the Superior Court of the city of ¡New York, entered upon an order made January 7, 1885, which affirmed a judgment in favor of plaintiff entered upon a verdict.</p> <p>This action was brought upon an alleged verbal promise of defendant to pay the amount of two notes owned by plaintiff and made by the firm of Wheatcroft & Rintoul.</p> <p>The material facts are stated in the opinion.</p>

This action was brought to recover the price of five hundred tons of pig iron sold and delivered by the plaintiff to the defendants.

These are cross-appeals from judgment of the General Term of the Supreme Court in the first judicial department, entered upon an order made May 18, 1885, which modified, so far as an additional allowance for costs was concerned, and affirmed as modified a judgment in favor of plaintiff entered upon a decision of the court on trial without a jury.

<p>Appeal from judgment of the General Term of the Supreme Court in the fifth judicial department, entered upon an order made October 31, 1884, which affirmed a judgment in favor of plaintiff entered on 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>

This action was brought to obtain a judicial construction of the will of Adaline W. Horton, deceased, and a codicil thereto. The testatrix died leaving plaintiff, her only child and heir-at-law, and her husband, Myron B. Horton, her surviving; he died before the commencement of this action. The testratrix died, seized of real estate of the value of about $25,000, and left personal estate to the amount of $38,000 and over.

(Reported below, 43 Hun, 377.) This action was brought against defendant, as trustee of a manufacturing corporation, to recover an alleged indebtedness of the corporation because of failure to file its annual report., The complaint alleges that the Clifton Mining Company is .and ever since the month of January, 1872, has been a manufacturing corporation duly organized under and pursuant to the general manufacturing act of this state passed in 1848, and the several acts…

<p>Appeal from order of the General Term of the Supreme Court in the first judicial -department, made October 26,1887, which reversed an order of Special Term denying a motion on the part of defendant to vacate an attachment herein and vacating the attachment.</p> <p>The facts so far as material are stated in the opinion.</p>

<p>Motion for leave to file a regents’ certificate of examination mine pro i/one.</p>

This action was in equity, for the cancellation of a bond and the restoration of $5,000 belonging to the estate represented by the plaintiffs as executors, and which money they had placed in the hands of Kinkle, one of the defendants, to indemnify him against liability as surety upon the bond.

<p>Appeal from judgment of the General Term of the Supreme Court in the first judicial department, entered upon an order made the 1st Monday of October, 1885, which affirmed a judgment in favor of defendant entered upon a verdict and affirmed an order denying a motion for a new trial.</p> <p>This action wus brought to recover damages for a breach of contract of freight entered into between the plaintiffs and the defendant, dated at Liverpool, July 23, 1878.</p> <p>It was agreed between the plaintiffs, as sub-owners of the steamer Bertha, and the defendant, that the steamer should proceed to Philadelphia, and in the words of the contract, “ ship to run regularly, commencing at loading port on March 15, 1879, or not later than April first and continuing up to July 15, 1879.” She was to be loaded with live cattle, and it was provided by the charter-party that the cattle fittings were to be furnished by the plaintiffs; “ charterers to approve the ventilation.” Defendant required plaintiffs to furnish blowers for ventilation, and on plaintiffs’ refusal to furnish them, refused to load the ship.</p> <p>The further material facts appear in the opinion.</p>

<p>Upon the trial of an indictment for murder, it appeared that the crime was committed by some one who had burglariously entered the house of the deceased. Defendant was sought to be connected with the crime by circumstantial evidence; he was sworn as a witness in his own behalf, On cross-examination he was examined as to his connection with another burglary at the house of one M. in the night-time, which he denied. Upon re-examination he denied that he had ever entered any man’s house in the night-time with intent to steal. M. was subsequently called by the prosecution and permitted to testify, under objection, to facts showing that defendant did burglariously enter his house in the night-time. Held, error; also, that the incompetent evidence was damaging in its nature and could not be said to have been harmless, and so its reception required a reversal.</p>

<p>Where there is no visible boundary to the line of a city street and a portion, of the roadway traveled on is so near the line, although really outside of the street, as to induce the belief in anyone passing upon the street and 'exercising reasonable care that he is within the line thereof, if such portion is for any reason rendered dangerous for travel and the city has notice thereof, and such danger can be remedied by' the exercise of reasonable care, either by the erection of a guard or railing along the line of the street or in some other way, and the city neglects to do this, it is liable to one injured because of such defect while traveling upon such portion of the roadway, if he himself is free from any contributory negligence.</p> <p>The owner of land adjoining one of defendant’s streets had built a sidewalk along the line thereof consisting of two strips of twelve-inch plank laid lengthwise of the street one foot apart, one strip inside and oné outside of the limits of the street. Plaintiff while walking along said sidewalk on the strip of plank outside of the street limits was injured by the breaking of the plank. In an action to recover damages for the injury it appeared that for a year prior to and at the time of the accident the sidewalk, for want of repair, had become and was in an unsafe and dangerous condition, of which fact defendant had notice; also, that there was nothing to indicate the line of the street. Held, that defendant was properly held liable for negligence.</p>

This action was brought by plaintiffs as the next of kin of Thomas Gunning, deceased, against the executors of his will, asking for an accounting, distribution and payment over of the residuary estate, which consisted entirely of personalty, and as to which plaintiffs claimed the testator died intestate-because of the invalidity of the provision of the will attempting to dispose of the same.

(Reported below, 34 Hun, 341.) The court found that plaintiff, in 1866, became and ever since has been the owner of a piece of land containing about eighty acres, upon which is a dwelling, occupied by him and his family as a residence. “ That about twenty-five or thirty rods distant southerly from the residence of said plaintiff is a tract of land of about seventy-five- acres, covered by a pond of shallow water, and commonly known as ‘ Kirby’s Pond; ’ that said pond is…

<p>Appeal from judgment of the General Term of the Supreme ■Court' in the second judicial department, entered upon an order made December 15, 1885, which affirmed a judgment in favor of plaintiff entered upon a verdict and affirmed an order denying a motion for a new trial. (Reported below, 38 Hun, 370.)</p> <p>This action was brought to recover damages for the loss of services of plaintiff’s son and for expenses of medical treatment and nursing, caused by personal injuries received by the son, a lad about seven years of age, who having been sent out ■on an errand by his mother, when crossing a street in the city of Brooklyn, was struck, knocked down and injured by a horse belonging to defendant, attached to his truck and driven by his servant.</p> <p>The facts so far as material are stated in the opinion.</p>

On April 8, 1887, an attachment was duly issued in the first entitled action and levied on property of the defendant. Service of summons by publication was regularly ordered and commenced. On May 17, 1887, the defendant appeared in the action, waived further publication of the summons and consented that judgment be entered against him for the amount claimed in the complaint. Judgment was accordingly entered and execution issued.

<p>Appeal from judgment of the Superior Court of the city of ¡New York, entered upon an order made December 7,1887, which affirmed a judgment in favor of defendant entered upon a verdict directed by the court.</p> <p>The nature of the action end the material facts are stated in the opinion.</p>

<p>Appeal from order of the General Term of the Supreme Court in the third judicial department, made May 3, 1887, which affirmed an order of Special Term vacating, as to the petitioner, an assessment for an improvement .of Second avenue in the city of Albany. (Reported below, 45 Hun, 391.)</p> <p>The alleged error in the assessment was the failure of the board of contract and apportionment to give the one week’s notice required by the city charter (§ 8, tit. 9, Chap. 298, Laws of 1883) of the meeting of the board to receive bids for the work.</p> <p>The further material facts are stated in the opinion.</p>

<p>A railroad corporation, seeking to take property in invitum for the purposes of its road, must be able to show, first, a legislative warrant, and second, if the right is challenged, that the particular scheme in which it is engaged is a railroad enterprise within the true meaning bf that term, or that the business it is organized to carry on is public, and that the taking of private property for its purposes is a taking for public use.</p> <p>The question as to whether the uses are, in fact, public so as to justify such taking is a judicial one to be determined by the courts.</p> <p>In determining that question the courts are not confined to, and it is not to be tested exclusively by the description of those objects and purposes as set forth in the articles of association, but evidence aliunde, showing the actual business proposed to be conducted, may be considered.</p> <p>The ground upon which private property may be taken for railroad uses without the consent of the owner, is primarily that railroads are highways or improved public ways.</p> <p>The articles of association of the N. F. & W. R Co., a corporation organized under the General Railroad Act (Chap. 140, Laws of 1850), declare it is organized for the purpose “ of constructing, maintaining and operating a railroad for public use and in transporting persons and property.” The route described is from a point near the foot of the falls on the American side of the Niagara river, running thence “ along the easterly margin and near the water’s edge ” of said river to a point below “ The Whirlpool.” In proceedings to condemn lands near the terminus of the route, it appeared that the river on the easterly side is faced by precipitous cliffs rising from a point near the water’s edge. That the starting point of the proposed route is on lands owned by the state and the terminus upon private lands, and it can be reached only by passing overstate orprivate lands. There canbeno habitations along the route and no traffic or business, except in conveying visitors at the falls over the road to see the river and “ The Whirlpool.” The season for visitors is, and the business of the proposed road will be, substantially confined to the summer months, and the road cannot be operated during the winter. Held, that the proposed road was not a highway in any proper or just sense of the term; and that, therefore, the use for which the land was sought to be taken was not a public one so as to justify the taking in invitum.</p>

<p>Appeal from judgment of the Court of Common Pleas in and for the city and county of New York, entered upon an order made November 12, 1885, which affirmed a judgment in favor of defendants entered on the report of a referee.</p> <p>The nature of the action and the material facts are stated in the opinion.</p>

.Appeal from order of the General Term of the Supreme Court in the fifth judicial department, made the 1st Tuesday of June, 1885, which reversed a judgment in favor of plaintiff entered upon a decision of the court on trial without a jury. This action wasf or alleged trespass. The defendant pleaded title. The facts so far as material are stated in the opinion.

<p>A spring, from which no stream or water-course runs, but the source of which and the flow of its waste or surplus waters are alike under ground, and so, matters of speculation or uncertainty, belongs to the owner of the land and he may divert and use the waters.</p> <p>Except as regards certain underground streams or rivers which are known and notorious and flow in natural channels between defined banks, subsurface currents or percolations are not governed by the rules and regulations respecting the use and diversion of water-courses, and they may be intercepted or diverted by the owner of the land for any purpose of his own.</p>

<p>Appeal from award of the Board of Claims made September 10, 1884, which allowed nothing to the claimant upon a claim for damages to his lands in Onondaga county, alleged to have been caused by water percolating from the “ Jamesville Reservoir.”</p> <p>The material facts 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 October 30, 1885, which affirmed a judgment in favor of defendant 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>

This action was brought against defendants as common ■carriers, for breach of contract to transport and deliver a quantity of iron. The iron was received at New York by ■defendants on board the canal boat Richard Collins, bound for Buffalo. On its way up the Hudson river the boat, with the iron on board, was sunk; a part of the iron was lost and the residue greatly damaged. The remaining facts, so far as material, are stated in the opinion.

<p>The consignor of goods to be sold on commission does not part with his title' by the consignment; he continues to be the true owner until the goods are sold by the consignee, and the rule is the same whether the consignee is a del credere factor, or is under advances for the principal or is simply an agent for sale.</p> <p>As a general rule a factor cannot bind his principal by a disposition of his property out of the ordinary course of business, nor can he dispose of the goods in violation of the order of his principal, even to repay advances, at least, until he has called upon his principal for reimbursement.</p> <p>In the absence of special circumstances, or of special authority, a factor, although he has advanced generally on the goods in his hands and has guaranteed the sales made by him, cannot sell a debt existing in open account and not yet due, arising on a sale of the consigned property so as to transfer a good title to the claim, when the principal is not in default and has not been called upon to repay the advances. ■</p> <p>Commercial Nat. J3k. v. Neilbronner (20 J. & S., 388), reversed.</p>

<p>Appeal from, interlocutory judgment of the General Term of the Supreme Court in the first judicial department, entered upon an order made October 9, 1885, which affirmed a judgment in favor of plaintiff, entered upon an order overruling .a demurrer to the complaint herein. (Reported below, - 37 Hun, 515.)</p> <p>The complaint herein contained three counts.' The first two alleged in substance that plaintiff was the owner in fee of certain lands situate in the state of Georgia; that defendant and his agents “ caused various persons to cut timber and take turpentine, the property of the plaintiff,” from said lands, “ and that the said timber and turpentine by the defendant and by his said agents.”</p> <p>The third count, after repeating the averments in the other two counts, alleged “ that- the defendant and his said agents -acting in the premises by his authority, without reasonable or probable cause, and with full knowledge that neither he nor "those for whom the plaintiff alleges that he is acting, owned the said lands or had any meritorious claim thereto or interest therein, have publicly and widely circulated both in the state of Georgia, in this state, in the state of Massachusetts, and in other parts of the United States, the assertion that the plaintiff was not the owner of or interested in the said lands.”</p> <p>The complaint, after specifying various occasions where defendant himself had made such assertions, and setting forth the same, set forth various .articles published at the instigation and by the procurement of the defendant in different newspapers, to the same effect, i. e., that plaintiff had no title to the lands, but that the same were owned by defendant and his associates. Then followed these averments: “That the defendant and his said agents, in procuring the publication of the said articles and in malting the aforesaid assertions, weE knew and intended that the said assertions and the statements of the said articles should be, and that they became, widely circulated and published in the state of Mew York, in the state of Georgia, in the states of Massachusetts, Maine and Mew Hampshire, and in other large parts of the United States, and that they thus became known to large numbers of persons wiEing and wishing to purchase from the plaintiff parts of the said lands and timber and turpentine from them, and that, in consequence, the plaintiff has been prevented from making sales of lands, timber and turpentine, and from obtaining the benefit of the costly improvements which have been made by him and his predecessors upon the said lands; that there have been a large number of persons who were wiEing and desirous to purchase parts of the said lands and timber and turpentine from them, and who have been prevented from doing so by the aforesaid action of the defendant and of his said agents; that such persons would have paid to the plaintiff large sums of money for such lands, timber and turpentine, and that in consequence of the said action of the defendant and of his said agents not only has the plaintiff been unable to sell such lands, timber and turpentine to such persons, but he has been wholly prevented from seEing the same to any persons whatsoever, and that in consequence the plaintiff has lost large sums of money which would have been received by him upon such sales; that the plaintiff charges that the statements and assertions hereinbefore mentioned, in so far as they represent, either directly or indirectly, and in whatever language, that the plaintiff was not the owner of or interested in the said lands, or that the defendant, and those for whom he alleges that he is acting, did own the same, were false and defamatory and were made and caused to be circulated and published by the defendant and by his agents, maliciously and with the intent to injure the plaintiff and his title to the said lands.”</p> <p>The substance of the demurrer is set forth in the opinion.</p>

(Reported below, 24 Hun, 575.) This action was brought to restrain the original defendant, who died after judgment, from interfering with a pipe laid across his premises to conduct water to plaintiff’s.premises. Laura Swan, in 1867, being owner of certain land, by a sealed agreement with the plaintiff, conveyed to him the right to lay down a water-pipe over the same. The agreement was not then witnessed or acknowledged, but was acknowledged in March, 1868.

This action was brought to recover damages for an alleged breach of contract on the part of defendant to purchase certain bales of “ Jute Butts.” The controversy was submitted to arbitrators as stated in the opinion.

(Reported below, 38 Hun, 586.) This action was brought by plaintiffs as assignees of- the firm of William 0. Allison & Sons, against the members of the firm of Griffith & Wundram to recover a balance alleged to be due on account by the latter to the former firm.

<p>Appeal from order of the General Term of the Supreme Court in the third judicial department, entered upon an order made December 5, 1887, which affirmed an order of Special Term denying an application for a mandamus, directing the defendant to audit, allow and certify the relator’s claim for salary as patrolman at the rate of $900 a year.</p> <p>The material facts are stated in the opinion.</p>

The Poughkeepsie Bridge Company was incorporated by the act chapter 897 of the Laws of 1871, passed May 10,1871.

The complaint shows that, on the 6th of June, 1878, one Trask and the defendant entered into an agreement in writing, hearing that date, and under seal, by which Trask agreed to sell to the defendant certain property described as “the stores and premises known as No. 39 South William street and No. 29 Stone street, in the city of New .York,” for the sum of $30,000, and convey the same “ free from all incumbrances,” by deed containing “ a general warranty and the usual…

<p>Appeal from order of the General Term of the Supreme Court in the fifth judicial department, entered upon an order made October 24, 1885, which reversed 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 appear in the opinion. ,</p>

This action was brought to restrain defendant from using a way across plaintiff’s land unless he would close and properly secure gates at each end thereof. The material facts appear in the opinion.

entered upon an order made October 24, 1885, which affirmed a. judgment in favor of plaintiff entered upon the report of a referee. The nature of the action 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 May 15, 1885, which affirmed a judgment in favor of defendants entered upon a verdict.</p> <p>The nature of the action and the facts are sufficiently set forth in the opinion.</p>

1 Appeal from judgment of the General Term of the Supreme Court, in the first judicial department, entered upon an order made January 8, 1886, which overruled exceptions taken by defendants on the trial, denied a motion for a new trial, and ordered judgment for plaintiffs on the verdict. (Reported below, 38 Hun, 404.) The nature of the action and the facts are sufficiently stated in the opinion.

(Reported below, 13 Daly, 438.) This action was brought to recover damages for injuries received by plaintiff by reason of her falling into a coal-hole or opening in the sidewalk in front of an apartment-house in the city of Yew York owned by defendant. The coal-hole had been left open for the purpose of receiving coal; there was no crib or box around and no one to warn persons passing on the sidewalk. The further material facts are 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 dated September 15, 1885, which affirmed a judgment ordered for the plaintiff at Special Term. (Reported below 37 Hun, 216.)</p> <p>This action was brought to recover possession of certain real estate with damages for the use and occupation thereof. The facts are sufficiently stated in the opinion.</p>

The claim herein was for damages by reason of the breach by the state of two contracts for work and materials for building the Buffalo State Asylum for the Insane.

<p>Lcmson v. Olarkson (113 Mass. 348) distinguished.</p> <p>Where a party enters and remains in possession as lessee of another, and the right of the lessor is in no way altered, the lessee is estopped from denying that relation, or that the legal estate and reversion are in the lessor.</p> <p>It seems, that to avoid the danger of being compelled to make a double payment, the defendant might have caused the parties in interest to interplead.</p>

(Reported below,, 38 Hun, 285.) This action was brought to recover damages for injuries resulting from a fall upon a sidewalk on one of defendant’s streets, upon which ice had formed, rendering it slippery. The further material facts are stated in the opinion. At the close of plaintiffs testimony, and at the close of the evidence, defendant’s counsel moved for a nonsuit, which was denied

This action was brought to recover damages for injuries resulting from a fall upon a sidewalk of one of defendant’s streets, which sidewalk plaintiff alleged defendant had negligently permitted to become dangerous on account of an accumulation of snow and ice thereon. The material facts are stated in the opinion.

(Reported below, 21 J. & S. 22.) This action was brought against defendants as members of the firm of Phillips & Co., to recover an indebtedness of that firm. Defendant Laimbeer alone appeared and answered, alleging that the firm was a limited partnership, duly formed under the statute; that he was a special partner, and so not liable as a general partner.

This was an action by the plaintiff, the vendee, to recover damages against the vendor for the breach of a contract to convey a lot of land, or to compel specific performance of the contract. The action was brought to trial at a Special Term, and the trial judge ordered judgment in favor of the plaintiff against the defendants Schaefer and Frank, and dismissed the complaint as to the defendants Larchns.

<p>Appeal from order of the General Term of the Superior Court of the city of New York, dated December 6, 1887, which affirmed an order of the Special Term granting a preliminary injunction.</p> <p>This action was brought to restrain the defendant from attaching to or using certain labels, or imitations thereof, upon boxes containing cigars manufactured and sold by him. An order granting a preliminary injunction was made at the Special Term upon pleadings and affidavits, which presented a controverted state of facts.' There were no findings of fact to show the particular grounds upon which the order was based.</p>

<p>Appeal from judgment of the General Term of the City Court of Brooklyn, entered upon an order made December 23, 1884, which modified and affirmed, as modified, a judgment of Special Term.</p>