Volume 109 — New York Reports

<p>Defendant leased certain premises to D., who deposited with him a sum of money under a provision in the lease that defendant should hold the same as security for the rent, paying interest thereon, the same to be paid back “ on full compliance with the conditions of this lease ” on the part of D. Default having been made in a payment of rent, D. was dispossessed by defendant, who refused to return any of the deposit. In an action to recover the same the answer alleged facts showing a breach by the tenant of covenants on his part to make repairs, but did not set them up as a counter-claim, held, that defendant was only entitled to retain the amount of his claim against his tenant for damages arising out of the breach of the covenant to secure which the deposit was made; that evidence of failure to keep other covenants did not go to destroy or diminish the amount of plaintiff’s cause of action, but gave to defendant a cause of action against D., which, to be available, should have been set up as a counter-claim.</p>

The plaintiffs, being judgment-creditors of defendant Charles E. Leland, sought, in this action, to have an assignment made by said. Leland to defendant Buchanan, as assignee for the benefit of his creditors, adjudged fraudulent and void.

The nature of the action and the material facts are sufficiently stated in the opinion. The plaintiff was guilty of contributory negligence, which was the cause of the collision. (Adolph v. Central Park, etc., 76 N. Y. 534.) A person about to go upon a railroad track must look and listen, and is excusable for the omission only when the circumstances show that both precautions were impossible or unavailing.

This action was commenced against the sheriff of the city and county of Hew York, but the proceedings were afterwards amended so as to substitute his indemnitors as defendants.

(Reported below, 45 Hun, 153.) It appears from the order appealed from, that the denial of these motions was made wholly and solely upon legal grounds and legal objections'; the court considering that it was without jurisdiction to grant the same.

(Mem. of decision below, 39 Hun, 486.) The nature of the action and the material facts are stated in the opinion. Experience in carrying milhons of passengers having proved the safety of the device and the efficiency of the method of inspection adopted by the defendant, it was justified in relying upon the safety, both of the device and of the method of guarding against defects therein.

The nature of the action and the facts are sufficiently stated, in the opinion. Both judgments were firm debts; neither had priority or preference as such. The first sale under either was valid and vested title in the purchaser, subject only to the right of redemption.

The nature of the action and the material facts are stated in the opinion. By the will of Adam Mueller the real estate was devised for life directly to his wife. (Smith v. Post, 2 Edwd. Ch. 570; 20 Wend. 53, 55.) The executrix had only a naked power of sale and the land descended to the devisees, subject only to its execution.

<p>The will of Y. devised certain real estate to his son for life, and directed that upon the death of the life tenant the land should “ be equally-divided among his children, should he have any; ” if no issue or descendants survived the son, the farm was to be equally divided among “ the children or issue ” of the testator’s brothers and sisters. In September, 1877, proceedings were instituted to sell the testator’s real estate for the payment of his debts. At that time his son and four children of the son were living. Several children of the testator’s brothers and sisters were also living, who were not made parties to the proceeding. Defendant purchased the property on a sale pursuant to an order of the surrogate in such proceedings, and contracted to sell them to plaintiff, who refused to accept a conveyance on the ground of defect of title. Held, that the children of the testator’s brothers and sisters were necessary parties to the proceedings; that they took under the will of the testator a good contingent remainder in the premises sought to be sold, subject to be defeated if any of the children of the testator’s son survived him (1 R. S. 724, § 16), and the rights of such contingent remaindermen constituted an estate in lands, of which they could not be divested during the existence of the life estate, except by appropriate legal proceedings to which they should be made parties.</p> <p>Also, held, that, as under the will the property must vest in possession in some of the designated remaindermen upon the death of the life tenant, there was no undue suspension of the power of alienation.</p> <p>The provisions of the act of 1850 (§§ 1, 2, 3, chap 82, Laws of -1850), amending the title of the Revised Statutes in regard to sales of real estate by executors and administrators, by declaring that sales under that title shall not be adjudged invalid for certain specified irregularities, have no application to the rights of persons not parties to the proceeding.</p>

The nature of the action and the facts are sufficiently stated in the opinion. The defendant was liable absolutely at the maturity of the bill on his acceptance, irrespective of the condition of the work or contract between him and Guy & Amery. (Munger v. Shannon, 61 N. Y. 255 ; Schmittler v. Simon, 101 id. 554; Brill v. Tuttle, 81 id. 457; Corbett v. Clark, 30 Am.

The facts, so far as material, are stated in the opinion. Where a later statute, not purporting to amend a former one, covers the whole subject-matter, and is plainly intended to furnish the whole law upon the subject, the former statute must be held repealed by necessary implication.

The claim was for damages for injuries to real and personal property of the claimant caused by the alleged negligence of the officers of the state in charge of the canals. The facts are sufficiently stated in the opinion. When the state, to a just claim, has no better or other defense than the statute of limitations, it should, at least, both upon the law and the facts, establish that defense with reasonable clearness and certainty.

T. Duhmore, special county judge of Oneida county. The Code gives defendant the absolute right to examine the plaintifE upon all the matters and things set forth in the affidavit upon which the original order to examine her was granted, subject only to the limitation that “ the order may, in the discretion of the judge, designate and limit the particular matters as to which the party shall be examined.” (Code of Civ.

<p>Appeal from judgment of the General Term of the Supreme Oourt, in the fourth judicial department, entered upon an an order made January 26, 1886, which affirmed a judgment entered upon a verdict in favor of the plaintiff.</p> <p>This action was brought originally against Edmund Merry and George G. Breed, copartners, to recover a portion of an award made by the canal appraisers and paid to them by the state .under the circumstances hereinafter stated.</p> <p>By an act of the legislature, passed in 1864, chapter 475, the canal commissioners were authorized to rebuild the dam on the Oswego river, at Phoenix, and the Horseshoe dam on said river, connected with the Oswego canal, with a view of improving the navigation of the canal.</p> <p>At that time there were two mill properties at the point where the improvements were to be made, which drew water from the dam, then in existence, to propel the machinery in the mills.</p> <p>The reconstruction was commenced in the year 1864 and completed in 1867. At the time of the commencement of the work, the defendants, Merry & Breed, were the sole owners of one of these mills, a grist-mill.</p> <p>The other mill and property, known as the Sturges mill, was owned by other parties. On the 14th day of October, 1865, Luman H. Candee and John Gilbert, part owners of the Sturges mill property, entered into an agreement with several persons, including Merry & Breed, to convey to them an undivided one-half part of the property. As between the purchasers, this interest was divided into ten shares, the defendants, Merry & Breed, taking one share; the parties who executed the instrument of transfer, hereinafter set forth, taking eight, and another purchaser the other one. By a deed dated on the 14th day of October, 1865, Candee and Gilbert conveyed the undivided one-half part of the Sturges mill property to the purchasers, one-twentieth part of the entire property being conveyed to Merry & Breed, and eight-twentieths to said parties.</p> <p>On the 25th- day of October, 1865, the purchasers of the eight-twentieths made and delivered to Merry & Breed an instrument in writing, of which the following is a copy:</p> <p>“ For value received, we and each of us sell and convey and assign all our right, title, interest and claim, in and to all damages to property and water-power, against the state of Hew York, growing out of the building of the Phoenix dam and lowering the heighth thereof. The claim for damages hereby sold and assigned, is upon the property and waterpower at Phoenix, Oswego county, New York, known and designated as the Sturges mill property. This sale and assignment is made to Edmund Merry and George G. Breed, under the firm name and style of Merry & Breed, who are hereby authorized to prosecute said claim against the state of New York, in their own name, and receive and receipt for all moneys awarded on account of said claim.</p> <p>“ Witness our hands and seals, this 23d day of October, 1865.”</p> <p>In consideration of this assignment, Merry & Breed, as plaintiff’s testimony tended to show, agreed to present claims for the damages sustained to the nine-twentieths, prosecute them, and pay over to the assignees eight-ninths of the sum awarded, less a proportionate share of the expense incurred. After the completion of the work, and, in April, 1868, the legislature passed an act (Chap. 340) for the relief of said Merry and others, authorizing the canal appraisers to hear and determine the claims of these parties for damages alleged to have been sustained by them in the years 1864,1865 and 1866 in rebuilding the dam on the Oswego river at Phoenix, by reason of any appropriation by the state, of the lands of the persons hereinbefore mentioned, or either of them, the removal or destruction of any building or other property owned by them, or either of them, by reason of the change of the height of the dam aforesaid, and diverting the water from the mill property of said persons, or either of them, and to award to them, or either of them, such sum or sums as the said appraisers shall deem just and equitable, subject to the appeal to the Canal Board, as in other cases. With a view of complying with the act, Merry & Breed made out and verified and filed with the canal appraisers, a claim for damages, naming the sum of $18,000 as the amount of the damages which they had sustained for the property of which they were the sole owners. And making a claim for nine-twentieths of the damages which had been done to the Sturges mill property, which was itemized, and, in the aggregate, amounting to $8,810. On the 10th day of October, 1872, the canal appraisers made an award of the gross sum of $7,564.96, which was paid to said- claimants. The persons who executed the assignment claimed that, of this sum, $2,800, with interest thereon from the 30th day of May, 1868, was awarded as damages sustained to the Sturges mill property, as set forth in the claim filed by the defendants, and demanded eight-ninths of that amount. The defendants refused to pay any portion of the award.</p> <p>This action being for money received by the defendants under an alleged direct and express trust, cannot be maintained as ail action at law unless the .. plaintiff establishes, that he has the right "to the money; that it is the defendants’ duty to pay the money to the plaintiff, and the amount of the money to which said right and duty attaches. (Eddy v. Smith, 13 Wend. 488; Marvin v. Brooks, 94 N. Y. 71; Rathbone v. Stocking, 2 Barb. 135.) As the plaintiff makes title to the money in question through the award alone (and without proving or attempting to prove any of the facts upon which the award is based as original facts in this case), the award is conclusive evidence as to all the questions determined by it within the jurisdiction of the appraisers, and is ‘for temporary injury to the real estate of defendants.” (Laws of 1868; chap. 340; Candee v. Lord, 2 Com. 268; Pray v. Hegeman, 98 N. Y. 351; Chapman v. City of Brooklyn, 40 id. 372.) As the statute which conferred the jurisdiction upon the appraisers limited that jurisdiction to the defendants, as the persons, and to fheir property injured as the property to be the sole subject of compensation, the award is an absolute nullity for any amount in excess of the compensation for injury to the estate of Merry & Breed. (Risley v. Phœnix B’k of N. Y., 83 N. Y. 318, 337.) If the award included anything beyond the compensation to defendants for injury to their estate, to that extent it was void, and any money paid over to defendants by the state officers under the void part of the award was unlawfully paid to and received by the defendants, and they received and held the excess in. trust for the state, and the state still retains the right to the money. (Ross v. Supervisors of Cayuga Co., 38 Hun 20; Horn v. Town of New Lots, 83 N. Y. 104; Risley v. Phœnix B'k of N. Y., id. 318.) The agreement was illegal in all its parts, as the first step in the agreement was a step in a fraudulent scheme to improperly obtain money from the state through an unlawful award, and as this action is an enforcement of that illegal trust and undertaking, it cannot be maintained. (Woodworth v. Benuette, 43 N. Y. 273; Clements v. Yturria, 81 id. 285.) The trust agreement set forth in the complaint, was absolutely void under the statute. 11 It. S. 135, §§ 6, 7.) It could not be attached by parol to an absolute deed. (Sturdevant v. Sturdevant, 20 N. Y. 39; Cook v. Barr, 44 id. 156; Wheeler v. Reynolds, 66 id. 227; Hutchins v. Hutchins, 98 id. 56 ; Levy v. Brush, 45 id. 589; Hurst v. Harper, 14 Hun 280; Hubbard v. Sharp, 11 N. Y. State Rep. 802; Hathaway v. Payne, 34 N. Y. 92; B’k of Auburn v. Roberts, 45 Barb. 407; Danforth v. Suydam, 4 Com. 66; McCrea v. Purmort, 16 Wend. 473.) The award has no validity except so far as it is authorized by the statute (chap. 340, Laws of 1868), and within the authority conferred by the statute it has all the force and effect of a judgment. Brown v. Mayor, etc., 66 N. Y. 385 ; 83 id. 337; Candee v. Lord, 2 Com. 268; Burgess v. Simonson, 45 N. Y. 225; Carpenter v. Osborn, 102 id. 552.) The award cannot be questioned collaterally until reversed, vacated or set aside in a direct proceeding. Peyser v. Mayor, etc., 70 N. Y. 497; Sherman v. Trustees of Clifton Springs, 27 Hun, 390; Buffalo v. State Line R. R. Co., 48 N. Y. 93; Wilkes v. Mayor, etc., 79 id. 621; Bk. of Commonwealth v. Mayor, etc., 43 id. 184; Swift v. City of Poughkeepsie, 37 id. 511.) The rules of interpretation and construction of written instruments not ha vine: the peculiar characteristics of judgments utterly forbid the interpretation put upon the award by the jury. (Coyne v. Weaver, 84 N. Y. 387, 390; Addison on Contracts, 295) Plaintiff must sustain his action by proving that he is entitled to the money ex cequo et bono, but the validity of the award is conclusive evidence that the fund was plaintiff’s money, and the invalidity of the award would be conclusive evidence that the money was the property of the state, unlawfully obtained, and, therefore, held in trust for the state. The defendants, therefore, owed plaintiff no duty to pay the money to the plaintiff. (People v. Mead, 36 N. Y. 229; Eddy v. Smith, 13 Wend. 490.) It was not competent for the plaintiff to vary or modify the legal effect of the assignment to the defendants by parol. (McCrea v. Purmort, 16 Wend. 473.) Where the law requires the evidence of a transaction to be in writing, oral evidence cannot be substituted for that so long as the writing exists and can be produced. (People v. Zeyst, 23 N. Y. 140, 142, 143.) If the claim assigned to plaintiff was a valid claim against the state for injury to the property of the assignors or their vendors, and not within the jurisdic tion of the Board of Canal Appraisers, under chapter 340 of the Laws of 1868, the award, or the payment thereof, did not affect or extinguish that claim against the state, because the act did not give any jurisdiction over such claim, and consequently did not give the plaintiff’s assignors any right to the money paid. (Patrick v. Metcalf, 37 N. Y. 332; Butterworth v. Gould, 41 id. 350; Hathaway v. Homer, 54 id. 655.) The plaintiff’s assignors having no title to the money due from the state, no duty to pay the same to plaintiff or his assignors arose from the receipt of the money, and" the plaintiff has no right to' the money, (People v. Mead, 36 N. Y. 224; De Peyster v. Mali, 92 id. 262; Laws of 1868, Chap. 340; Nellis v. Clark, 20 Wend. 24.) As to what the appraisers ought to have awarded for defendants’ lawful claim, and what for the unlawful claim, the award was conclusive. (De Peyster v. Mali, 92 N. Y. 262; People v. Zeyst, 23 id. 140.)</p> <p>The fact that the award was made in a gross sum to the claimants, and its omission to specify on which of the two properties it was made, was supplied by the opinion of one of the ajtpraisers, stating that the award was made on both properties, and the amount awarded on each. (Laws of 1829, chap. 368, § 2; Tolmam, v. S. B. & N. Y. R. Co., 92 N. Y. 353 ; Snyder v. Snyder, 96 id. 91, In re Holbrook, 99 id. 540.) The determination of the canal appraisers that Merry & Breed, and the plaintiff’s assignors, were entitled to present a claim, and receive an award for damages to their interests in the Sturges mill property, is final and conclusive, and cannot be reviewed for any purpose in this action. (1 R. S., chap. 9, tit. 9, art. 3, §§ 46-53; Laws of 1829, chap 368, §§ 1-3, 7; Laws of 1830, chap. 293; Laws of 1836, chap. 287; Laws of 1849, chap. 350, §§ 5-7; Laws of 1855, chap 535, § 4; Laws of 1857, chap. 538 ; Laws of 1866, chap 836, §§ 5-8; Laws of 1870, chap. 321; Laws of 1868, chap. 579; Laws of 1840, chap. 288, §§ 16-18; Laws of 1841, chap. 280, § 10; Code of Pro., §§ 11, 457; People v. Carrington, 2 Lans. 368; In re Com'rs Central Park, 50 N. Y. 493; De Peyster v. Mali, 92 id. 268, 269; N. Y. Ins. Co. v. Roulet, 24 Wend. 505; Comegys v. Vasse, 1 Pet. 193 ; Frevall v. Bache, 14 id. 95 ; Danforth v. Suydam, 4 N. Y. 66; Bank of Auburn v. Roberts, 44 id. 193; Pelton v. Westchester F. Ins. Co., 77 N. Y. 605.) The state, by the payment of the award, admitted and conceded its validity, and also the existence of every fact upon which its validity depended; and being valid as to the state, it was valid as between the parties to whom it was made. (Freeman v. Auld, 44 N. Y. 50; Kinsman v. Parkhurst, 18 How. [U. S.] 292; Hartley v. Harrison, 24 N. Y. 170; Freedman v. Brewster, 26 Hun, 236 ; Dezell v. Odell, 3 Hill, 216.) The plaintiff’s assignors had, in fact, a just and equitable claim against the state for damages to their interest in the Sturges mill property, notwithstanding the failure to name them in the relief act of 1868. The award was made on that claim, and hence was not a gratuity. (Munsell v. Lewis, 2 Denio, 224; Danforth v. Suydam, 4 N. Y. 66 ; Bank of Auburn v. Roberts, 45 Barb. 430, 431; 44 N. Y. 193; Allen v. Aguerre, 7 id. 543.) The justness and equity of the Sturges mill claim must be assailed, therefore, if at all, for a want of title in Merry & Breed and plaintiff’s assignors, or because there was no injury followed by damage. (Young v. Gray, 87 N. Y. 458; Demarest v. Ray, 29 Barb. 563; Heath v. Ross, 12 Johns. 140; Moore v. Burrows, 34 Barb. 173; Hathaway v. Payne, 34 N. Y. 92; Wood v. Chapin, 13 id. 509; Judd v. Seekins, 62 id. 266.) Ueithor the claim nor the award was apportionable between the grantors and the grantees of the nine-twentieths interest in the Sturges mill property, but only among the grantees who acquired the whole claim. (Zule v. Zule, 24 Wend. 16; Marshall v. Mosely, 21 N. Y. 280; N. Y. C. R. R. Co. v. S. & S. R. R. Co., 39 Barb. 290; Hyatt v. Allen, 56 N. Y. 554; Boardman, v. Lake S. & Mich. S. R. Co., 84 id. 151; 91 id. 484; Manning v. Quicksilver Miming Co., 24 Hun, 361.) At any time after the injuries commenced and damages commenced to accrue, the claim for the whole damage, both that which had accrued and was to accrue thereafter, although it had not become payable, was assignable, and the fact that the law providing means for the allowance and payment of the claim had not been passed at the time of the assignment, did not prevent it from taking effect as to the whole claim. (Munsell v. Lewis, 2 Den. 224; Comegys v. Vasse, 1 Pet. 193; Bouch v. Dalepaine, 2 N. Y. 391; Klock v. Buell, 56 Barb., 398; Field v. Mayor, etc., 6 N. Y. 179 ; 90 id. 381; Chapin v. Dobson, 18 N. Y. 74; Henderson v. Fullerton, 54 How. Pr. 422; Adams v. Hull, 2 Den. 307; Allen v. Brown, 44 N. Y. 229; Sherman v. Elder, 24 id. 381; Thomas v. Hubbell, 35 id. 120; Bolen v. Crosby, 49 id. 183; Spears v. Mayor, etc., 81 id. 360 ; Waldrum v. Willard, 17 id. 467.) The agreement between Merry & Breed and plaintiffs assignors, in reference to the prosecution of the Sturges mill claim, was not illegal, and even if it was illegal the sustaining -of .this action does not require the enforcement of any unexecuted provision of an illegal agreement. (Sedgwick v. Stanton, 14 N. Y. 289; Hendrickson v. Bender, 5 Weekly Dig. 466; Russell v. Burton, 66 Barb. 540; Southard v. Boyd, 51 N. Y. 177; Lawson v. Bachman, 81 id. 616; Merrit v. Milard, 4 Keyes, 208; Hamilton v. Kane, 2 Hall, 526; Farmer v. Russell, 1 B. & P. 296 ; Tenant v. Elliott, 1 id. 3 ; McBlair v. Gibbes, 11 How. [U. S.] 232; Kinsman v. Parkhurst, 18 id. 289.) Although it may be conceded that plaintiff’s assignors had no claim against the state, and that the award made was a mere gratuity, still plaintiff is entitled to recover as for money had and received by Merry & Breed to the use of his assignors. (Munsell v. Lewis, 4 Hill, 642; 2 Den. 224; Stover v. Eycleshimer, 3 Keyes, 620; Corver v. Creque, 48 N. Y. 385.) The sum awarded by the-appraisers on the Sturges mill claim was for damages to the interest of plaintiff’s assignors in that property, and nothing was awarded for damages to any interest which McKoon had owned in the property and hence the reservation in the McKoon deed has no force or materiality in this action. (Patrick v. Metcalf, 37 N. Y. 332; Butterworth v. Gould, 41 id. 350; Hathaway v. Cincinnatus, 62 id. 435.) As the award is ambiguous, especially with reference- to the items of the claim on which it was made, or as to the property and the amount awarded to each, if both properties, on which it was made, it was competent and proper to show, by parol evidence, what was included in the award, on what property it was made, and the amount awarded on each if on both properties. (Doty v. Brown, 4 N. Y. 75; Morris v. Osborne, 64 Barb. 543; Dunickel v. Wiles, 11 N. Y. 420; McKnight v. Devlin. 52 id. 399.)</p>

This action was brought to recover damages for injuries to plaintiff’s infant daughter, alleged to have been caused by defendant’s negligence. The facts pertinent to the questions discussed are stated in the opinion. The medical testimony was speculative and should have been excluded.

The nature of the action and the facts are sufficiently stated in the opinion. The power to sequestrate property, and particularly land, must be expressly conferred; it cannot rest in anything short of a necessary implication.

The defendant was indicted for the murder of one Peter Bernard. A dead body was found, alleged to be that of Bernard There was no direct proof of that fact, and it was sought to be established by circumstances, among others, that articles were found on or near the body which resembled articles shown to have been the property of and in the possession of Bernard before he disappeared. One witness testified that he made for Bernard a boot taken from the foot of the dead body.

The nature of the action and the material facts are sufficiently stated in the opinion. By the course of business between the parties, the technical rule that when a hank discounts a draft to which a bill of lading is attached, it acquires a special property therein, and that the consignee would, have no legal right to receive that property and dispose of it without accepting the draft was abrogated.

(Reported below, 39 Hun, 198.) This was an action upon a promissory note. The defense was failure of consideration. The verdict of the jury sustained this defense. The consideration was the sale by the payee to the defendant of the right to make, use and vend a patented article, under an invention patented by the payee, and of a collateral agreement on his part to promote, by means of orders and in other specified ways, the business of the defendant.

(Eeported below, 20 J. & S. 198.) This action was brought to recover damages for injuries received by plaintiff on the 27th day of January, 1883, while lawfully passing along Broadway in the city of New York, by an explosion at one of the man-holes of the American Heating and Power Company, at the junction of Broadway and Maiden lane. The American Heating and Power Company was the assignee of the rights and franchises of the Hmted States Heating and Power Company.

(Reported below, 41 Hun, 218.) This action was brought to recover damages for an alleged breach of a contract for the manufacture and sale of certain milk-coolers. The facts, so far as material, are stated in the opinion. The referee adopted the correct rule of damages. (14 N. Y. 597; 36 id. 93; 34 id. 634; 39 id. 53.)

<p>Appeal from judgment of the General Term of the Superior Court of the city of Mew York, entered upon an order made March 3, 1886, which affirmed in part and reversed in part a. judgment in favor of plaintiff entered upon the report of a referee. (Reported below, 21 J. & S. 46.)</p> <p>The nature of the action and the material facts are sufficiently stated in the opinion.</p> <p>The General Term erred in dividing the judgment. (Wolstenholme v. W. F. Mfg. Co., 64 N. Y. 272, 273; Van Bokkelan v. Ingersoll, 5 Wend. 316 ; Tidd’s Pr. 930; Bouv. L. Dict. “Judgment.”) Section 1317 of the Code of Civil Procedure does not increase the powers of appellate courts. (Cambridge Valley Nat. Bk. v. Lynch, 76 N. Y. 514; Crim v. Starkweather, 88 id. 339.)</p> <p>The General Term did not err in dividing the judgment entered upon the referee’s report. (Moffit v. Sackett, 18 N. Y. 522; Hayden v. F. S. M. Co., 54 id. 221; Wolstenholme v. W. File Mfg. Co., 64 id. 272; 6 id. 85; Whitehead v. Kennedy, 69 id. 462, 469 ; Frank v. Mut. L. Ins Co., 102 id. 266.)</p>

<p>Appeal from judgment of the General Term of the Supreme Court in the first judicial department, entered upon ah order made October 5, 1885, affirming a judgment in favor of plaintiff, entered on a verdict and an order denying a motion for a new trial upon the minutes. (¡Reported below, 38 Hun, 510.)</p> <p>The nature of the action and the material facts are sufficiently stated in the opinion.</p> <p>The alleged appraisement and award being made without notice to defendant is void, without regard to the question of the good faith of the appraiser. (Peters v. Newkirk, 6 Cow. 103 ; Morewood v. Jewett, 2 Rolt. 496; Knowlton v. Mickles, 29 Barb. 455; Elmendorf v. Harris, 23 Wend. 628; Jordan v. Hyatt, 3 Barb. 275; Van Cortlandt v. Underhill, 17 J. R. 405.) A covenant to pay for a party-wall is a mere personal covenant, binding only upon the parties thereto and their personal representatives, and does not run with the land or bind the subsequent grantee. (Cole v. Hughes, 54 N. Y. 444; Scott v. McMillan, 76 id. 141; Lester v. Barron, 40 Barb. 297; Black v. Isham, 17 Pick. 543.) Such a stipulation in a deed imposes no personal liability. (Scott v. McMillan, 76 N. Y. 141.) There is no difference between a covenant to assume the obligations of a party-wall agreement and one assuming payment of a mortgage. (Stewart v. Aldrich, 8 Hun, 243.) All the-assigns of the original covenantor, down to Margaret Crawford, not having assumed the covenant to pay for the party-wall, the covenants of assumption are ineffectual and do not inure to the benefit of Boggs and those claiming under him. (King v. Whiteley, 10 Paige, 465; Trotter v. Hughes, 12 N. Y. 74; Garnsey v. Rogers, 47 id. 233; Vrooman v. Turner, 69 id. 282.)</p> <p>Defendant’s acts amqunted to a ratification of the acts of his appraiser. (Benninghoff v. Ag. Ins. Co., 93 N. Y. 495; 1 Parsons on Contracts [5th ed,], 51; Cavrnes v. Bleecker, 12 Johns. 300; Sheldon H. B. Co. v Eickemeyer H. B. Co., 90 N. Y., 614; Hazard v. Spears, 4 Keyes, 469; Johnson v. Jones, 4 Barb. 369 ; Viana v. Barclay, 3 Cow. 281, Wage v. Sherman, 2 N. Y. 417; Boice v. Davenport, 3 Keyes, 474; S. R. R. Co. v. Row, 24 Wend. 74; Benedict v. Smith, 10 Paige, 127.) The evidence of plaintiffs witness, Wellington, was sufficient to support a-■finding by the jury of an oral submission and. appraisal as a matter of fact, and it would have been an error not to have submitted the question to the jury. (Bradley v. McLoughlin, 8 Hun, 545 ; Meus v. Mut. Gas Co., 12 Weekly Dig. 238; Schofield v. Hernandez, 47 N. Y. 313.) It was no objection to nor did it impair the validity ot such appraisal that the appraisers did not hear the parties, since it was clearly to be inferred from the evidence of the plaintiff, and of the defendant himself, that the appraisers were to act upon their own knowledge and inspection of the premises. (Wibberly v. Matthews, 91 N. Y. 648.) Since an oral submission, without any provision that the award shall be in writing, will support an oral award, and where a matter is submitted to arbitrators it is not necessary that there should be an express agreement to abide the award, as the law implies such an agreement from the very fact of the submission, the court did not err in refusing to dismiss the complaint on the ground that no appraisal or award had been shown. ( Valentine v. Valentine, 2 Barb Ch. 430; Ryder v. Dodge, 14 Weekly Dig. 84.) The submission of the disputed questions to appraisal or arbitration is, in and of itself, a contract binding upon the parties to such submission, and it is not necessary that there should be any express agreement to abide the event of the award, as the law will imply such agreement. (Stewarts. Cass, 16 Vt. 663 ; Valentine v. Valentíne, 2 Barb. Ch 430; 2 Parsons on Contracts [5th ed.], 688; White v. Hoyt 73 N. Y. 514, 515.) Defendant is estopped from now questioning his liability to pay for the one-half of such party wall. (Voorhees v. Olmstead, 3 Hun, 744; affirmed, 66 N. Y. 113; Viany v. Ferran, 5 Abb. [N. S.] 110; Continental Bank v. Bank of Commerce, 50 N. Y. 577; Stores & Brooks v. Baker, 6 Johns. Ch. 166; Welland Canal Co. v. Hathaway, 8 Wend. 483; Finnegan v. Carraher, 47 N. Y. 493.) Having, with full knowledge of all facts, failed to question his liability, but appointed an appraiser and submitted the question to arbitration, defendant thereby waived any legal ■defense that he might have had, and cannot now question the fact of his liability. (In re Cooper, 93 N. Y. 507 (511); Baker v. Braham, 6 Hill, 47; Stores & Brooks v. Baker, 6 Johns. Ch. 166.) A party-wall agreement is a personal contract and is assignable. (Hart v. Lyon, 90 N. Y. 663; Coles v. Hughes, 54id. 444; Scott v. McMillan, 76 id. 141.)</p>

The nature of the indictment and the material facts are stated in, the opinion. A criminal or malicious intent is not an essential ingredient of every crime.

and denying a motion for a new trial. (Reported below, 39 Hun, 44.) The nature of the action and the material facts are suffi•ciently stated in the opinion. The motion to dismiss the complaint should have been granted, plaintiff having stipulated that the last arbitrator appointed by defendant was an impartial, disinterested and competent person to act as such arbitrator. (Pres, D. & H. Camal Co. v. Penn.

The facts are sufficiently stated in the opinion, Justices of the peace-must hold office either by election at town meeting or by appointment under the statute. (Const., art. 6, § 18; 1 R. S. [1th ed.] 823.) The word “and,” in the statute, shoiild be interpreted “ or.” Such an interpretation is always resorted to when the literal interpretation would be harsh or doubtful or bring about a severe result that the context, does not make the clear and indisputed intention.

Chapin, comptroller of the state, denying the petition of the relators for the refunding of the purchase-money paid for lands upon a sale for taxes which has been declared invalid.

Court in the fifth judicial department, entered upon an order made October 24,-1885, which reversed a judgment in favor of defendant, entered upon the report of a referee, and ordered a new trial. The nature of the action and the material facts are sufficiently stated in the opinion.

The nature of the action and the facts are sufficiently stated in the opinion. The surviving children of Charles E. Miller, deceased, are seized in fee of a vested remainder under an express trust.

The complaint in this action alleged,' in substance, the formation of a limited partnership, in which defendant was the special partner; that said firm incurred an indebtedness to plaintiff’s assignors, and in an action thereon recovered judgment against the general partners, upon which execution was issued and returned unsatisfied; that said firm was insolvent, and while so insolvent and indebted to said assignors, the defendant was paid and withdrew from the copartnership…

<p>Appeal from judgment of the General Term of the Supreme Court of the first judicial department, entered upon an order made November 6, 1885, which affirmed a judgment in favor of plaintiff entered upon the decision of the court at Circuit upon a trial without a jury.</p> <p>The nature of the action and the material facts are sufficiently stated in the opinion.</p> <p>There was a sufficient ratification of the investment by plaintiff. (94 N. Y. 321, 322.) This action is governed by the statute of limitations in . force before the Code of Civil Procedure went into effect. (Code of Civ. Pro. §§ 91, 3356, 414, subd. 3, 4.) In the case of torts arising quasi ex contractu the cause of action arises immediately upon the happening of the default, and is not postponed to the damage thereby occasioned, or to the discovery by the injured party of his misfortune. (Angelí on Lim. §§ 139,136 and foot note ; Wood on Lim. §§ 122,177; Smith v. Fox, 6 Hare, 386; Brown v. Howard, 4 Moore, 508; 2 B. & B. 73 Whithead v. Howard, 3 B. & Ald. 288; Crawford v. Gaulden, 36 Ga. 173; Gauley v. Troy City Nat. Bank, 98 N. Y. 487, 493, 494.) Ho demand was necessary to set the statute running. (Code of Pro. § 74; 98 N. Y. 487; Wilcox v. Plummer, 4 Pet. 495; 4 Moore, 508; 2 B. & B. 73; 3 B. &. Ald. 288; 33 Ga. 173; Carr v. Thompson, 87 N. Y. 160, 165, 166.) Section 410 of the Code of Civil Procedure does not apply to this case. (Bronson v. Munson, 29 Hun, 54.) As plaintiff retained, until the close of the second trial, substantial fruits of the investment, she cannot recover. (Moyer v, Shoemaker, 5 Barb. 319; Wheaton v. Baker, 14 id. 594; White v. Seaver, 25 id. 235; Gould v. Cayuga Co. Nat. Bank, 86 N. Y. 75.) Plaintiff can only recover upon her rights as ascertained at the commencement of the action. (Tiffany v. Bowerman, 2 Hun, 643; McCullough v. Colby, 4 Bosw. 603.) The proffer of the deed on the trial was of no avail. (86 N. Y. 75; Whitney v. Martine, 15 J. & S. 396; 88 N. Y. 540.) The acts of a trustee are only voidable, and the beneficiary must declare his avoidance by appropriate acts of rescission. (Smith v. Lansing, 22 N. Y. 520; Duncomb v. N. Y. H. & N. R. R. Co., 84 id. 190.)</p> <p>The statute of limitations does not apply to this case, but it is directly within the provisions of section 410 of the Code of Civil Procedure. (Bronson v. Munson, 4 Hun, 60; Case v. Carroll, 35 N. Y. 385, 390; Lytle v. Beveridge, 58 id. 606; Brent v. Maryland, 18 Wall. 433.) Defendant having concealed the breach of trust, the statute would not run in his favor until the discovery of the facts. (Beattie v. Pool, 13 S. C. 383; Prevost v. Gratz, 6 Wheat. 497; Hamburger v. Kennedy, 4 Desau. [S. C.] 479; Kane v. Bloodgood, .7 Johns. Ch. 122.) As there was no agreement by defendant to make the investment or account for the money received within a specified time, plaintiff could not maintain this action until she had demanded a return of the money. (Carr v. Thompson, 87 N. Y. 160, 165; Bronson v. Munson, 29 Hun, 54; Joseph v. Baker, 16 Cal. 173; Sadowsky v. McFarland, 3 Dana [Ky.] 27; Wood on Limitations, 429, 430; Hopkins v. Hopkins,, 4 Strobh. [S. C.] Eq. 357; Dacy v. Feld, 1 Abb. Ct. of App, Dec. 490; Pottier on Contracts [Evans’ ed], cited in Payne v. Gardiner, 29 N. Y. 146; Gauley v. Troy City Nat. Bank, 98 id. 493.) The pretended investment by the defendant of plaintiff’s money was no investment at all. (Fulton v. Whitney, 66 N. Y. 555, citing and approving Case v. Carroll, 35 id. 388, 389; Davoue v. Fanning, 2 Johns. Ch. 252; Gardner v. Ogden, 22 N. Y. 651 [4 Hun, 689]; Graves v. Waterman, 36 id. 439; Duncomb v. N. Y., etc. R. R. Co., 84 id. 198; Butts v. Wood, 37 id. 319 ; Gallatin v. Cunningham, 8 Cow. 361.) It is negligence, as a matter of law, for a trustee or agent to invest trust funds in a second mortgage on property already heavily incumbered. (Whitney v. Martine, 88 N. Y. 539, 540.) The' denial of the motion to dismiss on the ground that no demand was alleged and the exception based thereorf are of no consequence, because the error, if it was one, was cured by proof of the demand, subsequently introduced without objection, and upon the admission of defendant that such demand had been made. (Bartholomew v. Lyon, 67 Barb. 88, 89; Schen. & Sar. Plank Rd. Co. v. Thatcher, 11 N. Y. 112; Leslie v. Knick. Life Insurance Co., 63 id. 31, 32; Colgrove v. Harlem R. R. Co., 20 id. 492; 6 Duer, 382; Code of Civ. Pro. § 723; Clark v. Crego, 51 N. Y. 646; Harris v. Tunbridge, 83 id. 97; Bate v. Graham, 11 id. 242; Haddon v. Lunday, 59 id. 320; Pratt v. H. R. R. Co., 21 id. 305; Lounsbury v. Purdy, 18 id. 515.)</p>

Appeal by defendant, John De Leon, from a judgment of the General Term of the supreme court, in the first department, entered upon an order made January 23,1888, affirming a judgment of the court of general sessions of the city and county of New York, entered upon a verdict convicting defendant of the crime of kidnapping. The facts fully appear in the opinion of the General Term, which is here given, also in that of the court of appeals.

(Reported below, 39 Hun, 158.) On the 11th day of March, 1883, the plaintiff, who was a speculator in oil, living at Olean, in this State, went to the office of the defendant in- that village and there wrote and delivered to its agent for transmission to his brokers, Hilton & Waugh, in Bradford, Pa., a telegram as follows : “Buy the twenty-five in to-morrow morning at best,” and paid the charge, fifteen cents, for transmitting the same.

This action was brought .to recover damages received by plaintiff while a passenger on a car of defendant, the Ninth Avenue Railroad Company, which resulted from a collision between said car and a truck which was being driven by the defendant, Patrick Heniff. The railroad company alone appeared and answered. The further material facts are stated in the opinion.

verdict in favor of plaintiff and an order denying a. motion for a new trial. The nature of the action and the material facts are. sufficiently stated in the opinion. When an appliance, or machine, or structure, not obviously dangerous, has been in. daily use for years, and has uniformly proved adequate, safe; and convenient, its use may be continued without the imputation of culpable imprudence or carelessness.

<p>Appeal by defendant, John O’Neill, from a judgment of the General Terrti of the Supreme Court, of the First Department, of June 20, 1887, which affirmed a judgment of the Court of Oyer and Terminer, Hon. George C. Babbett, presiding, of February 11, 1887, entered upon the conviction of defendant of bribery.</p> <p>In" the report of the case at the general term, 5 R. Y. Grim. Rep. 302, the facts, indictment, and briefs of counsel have been fully given, and need not be here repeated. In the report of the Sharp case there is given (5 R. Y. Grim. Rep. 393-419), a full account of the transactions out of which arose the present prosecution.</p>

The appeals herein were: First. An appeal, by all of the defendants, who appeared and answered, under section 1336 of the Code of Civil Procedure, from portions of a final judgment rendered in this action at a Special Term of the Supreme Court, and entered in the clerk’s office of Richmond county on the 19th day of May, 1887.

This action was brought to recover the balance alleged to-be due and unpaid for work done under a contract between the parties, and damages for loss of profits on work covered by the contract, which plaintiff alleged he was prevented from doing by defendant. Defendant having entered into a contract with the Yew York and Scranton Construction Company for the construction, of a railroad, sub-let a portion of the work to plaintiff.

This action was brought by plaintiff to recover damages for injuries received while a passenger upon one of defendant’s cars. The facts are sufficiently stated in the opinion.

This action was brought to recover damages for injuries resulting from a fall on a cross-walk of one of the defendant’s streets. The material facts are stated in the opinion.

The nature of the action and the material facts are sufficiently stated in the opinion; The complaint sets forth a cause of action on contract, and its breach, from whatever cause, gives the right of action.

The nature of the action and the material facts are stated in the opinion. The order of reversal in this case does not state that the reversal was on any •question of fact. Error of law must, therefore, be shown to sustain it. (Schoener v. Lissauer, 9 Cent. Rep. 443; Lewis v. Barton, 106 N. Y. 70, 73 ; Rider Life Raft Co. v. Roach, 97 id. 378; Kane v. Cortesy, 10 id. 132.) Todd had no other remedy than to bring the action he did.

<p>-Where new matter is set forth in an answer, and it is not expressly stated therein to he a partial defense, as prescribed by the Code of Civil Procedure (§ 508), it must be assumed that the new matter alleged is pleaded as a complete defense, and if demurred to it must be tested as such.</p> <p>Where, therefore, in an action for the conversion of a promissory note, the maker of which resided in Kansas, and of a mortgage given upon lands in that state to secure the note, the answer alleged that an action upon the note and mortgage was barred by the statute of limitations of that state. IMd, that a demurrer to the answer was properly sustained; that the facts stated only constituted a partial defense, and not having been pleaded as such the answer was insufficient.</p> <p>It seeing the facts alleged, if admissible at all, would be proper under denials in the answer putting in issue the amount of damages.</p> <p>An answer does not bar a cause of action, and so constitute a defense, which simply affects the measure of damages, although reducing them to a merely nominal amount.</p>

The nature of the action and the material facts are stated in the opinion. It was incompetent and wholly irrelevant and immaterial to prove that the assignee’-' intention was innocent, honest and free from fraud.

” Also, appeal from order of said General Term made January 23, 1888, which reversed said order of Special Term. The facts, so far as material, are stated in the opinion. As the court below did not deny the motion in the exercise of discretion, but held that the plaintiff had no right to the relief, an appeal lies to this court.

The material facts are stated in the opinion. The evidence is insufficient, and justice requires a new trial. (Code of Crim.

This action was brought by plaintiff, a Swedish peasant woman, who, emigrating to this country, was a passenger on one of the steamers of the defendant’s line, for the loss of her baggage, consisting of a trunk and its contents. The facts material to the questions discussed are stated in the opinion. The evidence offered of the inspector of customs as to the value of the ordinary baggage of emigrants from Sweden and Norway was erroneously excluded. (Snow v. East.

(Reported below, 40 Hun, 68.) The nature of the action and the material facts are stated in the opinion. The mortgagor having failed to pay his loan at maturity, his legal title to the policy was extinguished, and an action at law could not thereafter he maintained by the mortgagor, or his personal representatives, to recover the property or any part thereof.

This action was brought to foreclose a mechanic’s lien upon premises in the city of Brooklyn. The material facts are stated in the opinion. The respondents are only entitled to liens on complying with the statute and proving performance by the defendant Wilson. (Linn v. O'Hara, 2 E. D. Smith, 560; Grogan v. Mayor, etc., Id. 639; Walker v. Paine, Id. 662; Hauptman v. Halsey, Id. 668.) The notice was a cancellation of the contract for Wilson’s default.

Appeal under chapter 493, Laws of 1887, from judgment of the Court of Oyer and Terminer, in and for the county of Monroe, entered upon a verdict convicting the defendant of the crime of murder in the first degree. The facts, so far as material to the questions discussed, are set forth in the opinion. This case, upon careful reading, will be found to contain no element of murder, either in the first or second degree, but a case of manslaughter, if anything.

<p>Appeal from judgment of the General Term of the Superior Court of the city of Hew York, in favor of defendant Laimbeer, entered upon an order made March 1, 1886, which overruled exceptions taken by plaintiff at the trial and ordered to be heard in the first instance at the General Term, and denied a motion for a new trial. (Reported below, 21 J. & S. 84.)</p> <p>Tké defendants, William. I. Phillips and Laimbeer, were sued as copartners under the name of “ William I. Phillips,” and a recovery sought upon a promissory note dated January 3, 1884, alleged to have been made by them in that name. Laimbeer alone answered, setting up that the partnership was formed under the statutes of this state relating to “ Limited Partnerships ” (B. S. pt. 2, tit. 1, chap. 4); that he was a special partner merely, and subject only to such liabilities as by statute attached to one in that character.</p> <p>Upon the trial of the issues the plaintiff proved the formation of a partnership between Laimbeer and William I. Phillips “ for the purpose,” as expressed in the written articles, “ of carrying on a general produce and commission business,” under the name of “ William I. Phillips,” in the city of blew York, from October 1, 1883, to May 1, 1885; that Phillips was to be the general partner and contribute $5,000, and Laimbeer the special partner and contribute $20,000 to the capital of the concern, and a certificate which recited “ that the nature of the business to be transacted is that of a general commission business, buying and selling grain, flour and produce on commission.” The articles of partnership and the certificate bore date October 1, 1883, as did also the order for publication, which designated “The Daily Begister” and “The Beal Estate Chronicle” as the newspapers in which the terms of the partnership so formed should be published. The certificate was recorded on the same ■ day; the first publication in the “ Begister ” was October sixth, and in the “Beal Estate Chronicle ” October tenth; each stated that the firm was formed “ for the purpose of conducting a general commission business.”</p> <p>At the close of the evidence the plaintiff’s counsel moved the court to direct a verdict for the plaintiff upon the grounds as stated by him.</p> <p>(1.) “That the publication in The Beal Estate Chronicle did not commence, according to the affidavit of publication, until the 10th day of October, 1883, and, therefore, there was not an immediate publication, and, therefore, there was no compliance with the statute.”</p> <p>(2.) “ That there is a material variance between the statement of the nature of the businesstobetransacted, as embodied in the certificate that was filed and recorded on the 1st of October, 1883,- and the statement of the nature of the business as embodied hi the advertisements introduced in evidence.”</p> <p>This motion was denied. The plaintiff had also given evidence as to the circumstances attending the payment by the special partner of his contribution to the capital of the concern, and its counsel asked to go the jury upon the question of the bona fides of that payment. This also was denied, and then a more explicit request was made for permission “ to go to the jury on the question, whether or not the $20,000 that was paid in on the 1st of October, 1883, by Mr. Laimbeer was not paid in upon the understanding that it should find its way back to him, either through the preceding firm of Phillips & Co., or in some other way.”</p> <p>This was denied upon the ground, as stated by the trial judge, “ that there is no evidence that would justify such a finding by the jury.” Exception to each of the above rulings was duly taken, and the comt then directed a verdict in favor of the defendant Laimbeer. To this the plaintiff also excepted. A verdict was rendered ,as directed.</p> <p>Further facts appear in the opinion.</p> <p>The publication of the terms of partnership was not commenced “ immediately” within the terms of the statute. (1 R. S. 164, § 9; Bowen v. Argall, 24 Wend. 496, 502 ; Sheldon v. Wright, 1 Barb. 45 ; Smith v. Argall, 6 Hill, 419, 482.) The notices published in the newspapers did not correctly set forth the business intended to be transacted. (Jackson v. Stackhouse, 1 Cow. 122; McIntyre v. Williamson, 1 Edw. 38 ; Payler v. Homersham, 4 Mau. & Sel. 425 ; Van Hagen v. Van Rensselaer, 18 J ohns. 420: Elmendorf v. Lansing, 5 Cow. 410 ; 8 Wend. 494; 1 Barb. 398; Durant v. Abendroth, 69 N. Y. 148, 154.) •Plaintiff was allowed to go to the jury on the question of the bona jides of the contribution. (Met. Bk. v. Sirret, 97 N. Y. 320; McNulty v. Hurd. 86 id. 547; Becker v. Koch, 104 id. 394; Lineweaver v. Slagle, 64 Md. 465, 485, 487.) The plaintiff’s exception to the court’s direction of a verdict in Laimbeer’s favor brings up every point in the case, and alone entitles plaintiff to a reversal if for any reason the court should . not have given such a direction. (Train v. Holland, 62 N. Y. 598, 604.)</p> <p>The plaintiff having chosen to call the defendant as his own witness to establish his case, it does not lie in his mouth now to say that the jury are at liberty to disbelieve him and find a verdict against his own uncontradicted testimony.. (1 Greenl. on Ev. § 442; Thompson v. Blanchard, 4 N. Y. 311; Coulter v. Express Co , 56 id, 585-589.) Assuming that the jury were at liberty to disregard the evidence of the defendant given on behalf of the plaintiff, still the plaintiff’s case must fail, the burden being upon him to prove facts sufficient to impeach the bona fieles of the payment of the capital. (Met. Bk. v. Sirret, 97 N. Y. 328.) In the formation of a limited partnership all the law requires is good faith and a substantial compliance with the statute. (Madison Co. Bk. v. Gould, 5 Hill, 311, 312.)</p>

The material facts are stated in the opinion. There is no analogy between defendant’s business and the trade in intoxicating liquors.

The defendant was indicted in December, 1885, for an assault in the first degree, at the Greene county Oyer and Terminer, and was tried before the Court of Sessions. He-was convicted of an assault in the third degree and on appeal the General Term reversed the judgment on questions of law only, and ordered a new trial, remanding the action to the Court of Sessions for further proceedings.

(Reported below, 13 Daly, 4L) The nature of the action and the material facts are stated in the opinion. The defendant by the terms of the policy became the bailiff of the dividends and earnings of the policies of this class and agreed to preserve and equitably distribute or apportion them. This creates a relation of trust which entitles plaintiff to an account. (McMurray v. Ransom, 3 Hill, 59, 61, 63, 67,71; Bogardus v. N. Y. Life Ins. Co., 101 N. Y. 328, 339; Pierce v. Eq.

(Reported below, 39 Hun, 248.) This action was brought to compel the defendant to produce and deliver to the clerk of Saratoga county for record a deed of real estate situate in that county. The referee found, in substance, among other things, that in August, 1872, John O. and Richard Lyon entered into an agreement in writing with defendants,William A. Smith and Thomas.

Appeal by defendant, Charles Q. Qnann, from judgment of the General Term of the Supreme Court in the fifth judicial department, entered upon an order made October 31, 1884, which reversed a judgment in favor of said defendant entered upon an order setting aside a verdict in favor of plaintiff against said defendant and dismissing the complaint as to him.

<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 January 7, 1886, which affirmed a judgment in favor of plaintiffs, entered upon a decision of the court on trial at' Special Term. (Reported below, 13 Daly, 449.)</p> <p>This action was brought to foreclose a mortgage executed by defendant Coar and his wife, the defendant Mary J. Coar, who alone defended.</p> <p>The facts are sufficiently stated in the opinion.</p> <p>The rights of the defendant, Mary J. Coar, could not be affected by any act or representation of John Coar, done or made after tlie deed to her was made by Marshall; nor, indeed, did his acts or representations made at any time bind her. (Schafer v. Reilly, 50 N. Y. 61; Berdan v. Sedgwick, 44 id. 626; Smith v. Fellows, 41 Sup. Ct. Rep. [9 J. & S.] 36 ; Marcy v. Dunlop, 5 Lans. 365.) One who takes an assignment of a mortgage takes it subject not only to any latent equities that exist in favor of the mortgagors, but also subject to the like equities in favor of third persons. (Schafer v. Reilly, 50 N. Y. 61; Bush v. Lathrop, 22 id. 535; Trustees Union Col. v. Wheeler, 61 id. 88; Greene v. Warnick, 64 id. 220; Crane v. Turner, 67 id. 437; Viele v. Judson, 82 id 32; Ingraham v. Disborough, 47 id. 421; Davis v. Bechstein, 69 id. 440; Green v. Fry, 93 id. 357; De Lancy v. Stearns, 66 id. 157; Reid v. Sprague, 72 id. 457.) The date of record is not evidence of the date of delivery of a dated instrument; the presumption is that the date of the instrument is the date of its delivery even when the date of acknowledgment is subsequent. (Robinson v. Wheeler, 25 N. Y. 260; People v. Snyder, 41 id. 397, 402.) Admissions of one joint contractor, unless they be partners, do not bind the other. ( Wallis v. Randall, 81 N. Y. 164; Smythe v. Munroe, 84 id. 354; Weyh v. Boylan, 85 id. 394.) Mrs. Coar is not estopped from setting up her defense because she knew that the mortgage in which she joined was in the hands of Walker. (Davis v. Bechstein, 69 N. Y. 440 ; Viele v. Judson, 82 id. 32.)</p> <p>The defendant was estopped by the certificate of John Coar, the mortgagor. (Smyth v. Munroe, 84 N. Y. 354; Weyh v. Boylan, 85 id. 394.) In the absence of fraud, if the parties have a joint interest as plaintiff or defendant, an admission made by one is, in general, evidence against all. (1 Greenl. Ev. § 174.) The defendant is estopped by the terms of the deed to her grantor, which was “ subject to the mortgage,” and she took the same title. (Belmont v. Coman, 22 N. Y. 440; Bennett v. Bates, 94 id. 354, 370, 371; 1 R. S. 143; Russell v. Allen, 10 Paige, 249; Vanderkemp v. Shelton, 11 id. 28.) Exceptions to conclusions of law, where cause is tried without a jury or by referee, are indispensable to raise any question for review. (Russell v. Duflou, 4 Lans. 406 ; Weed v. N. Y. & H. R. R. Co., 29 N. Y. 616; Enos v. Eigenbrodt, 32 id. 444.) In an equity case a new hearing will not be granted or judgment reversed merely on the ground that proper evidence was rejected at the trial, if, on all the facts and circumstances, the court is satisfied the result ought not to have been different if such testimony had been received. (In re N. Y. C. & H. R. R. R. Co., 95 N. Y. 342, 347; Porter v. Smith, [Ct. of App. 1887], 10 Cent. Rep. 271; Demont v. Niarpaes [Gen. Term, Fourth Dept. 1879], 8 W. D. 94 ; Standard Oil Co. v. Amazon Ins. Co., 79 N. Y. 506.)</p>

This action was brought by plaintiffs, as judgment-creditors of defendant, the Thousand Island Hotel Company, to set aside an order of affirmance of a judgment, in an action to enforce a mechanic’s lien upon the real estate of said company, the judgment entered on said order, a sale under the judgment and the sheriff’s deed, to restore the lien of plaintiffs’ judgment and to have it adjudicated that said real estate is subject to said lien or that plaintiffs have a right to…

(Reported below, 20 J. & S. 468.) The nature of the action and the material facts are stated in the opinion. The counter-claim sets forth a cause of action for damages for a breach of contract, and demands judgment for which a separate cause of action might he maintained, upon which defendant is entitled to a jury trial as matter of right.

<p>To render an obligation given to secure a loan void for usury, it is not sufficient to show that the loan was made by an agent of the lender, and that such agent exacted and received for his own benefit, a sum of money over and above legal interest, as a condition of the loan; it is necessary to show that the agent took the bonus with the knowledge and assent of the lender; it is not sufficient to show that the lender knew of the usurious exaction after the loan was made and security given; nor is it sufficient to show he supposed his agent was to receive some compensation for services rendered the borrower in effecting the loan.</p> <p>The defense of usury, involving crime and forfeiture, cannot be established by mere surmise and conjecture, or by inferences entirely uncertain.</p> <p>To limit a guaranty so that it shall not he transferable or assignable, its language must be express, and show clearly such to be the intent.</p> <p>Defendants assigned a bond and mortgage to IT.; the assignment contained a guaranty of the payment of the mortgage to IT. Held, that this guaranty was not personal, and could be assigned with the bond and mortgage.</p> <p>Smith v. Starr (4 Hun, 123) overruled.</p> <p>Also, held, that the guaranty was not inoperative, because, by its terms, it was for payment of the mortgage, not the bond; that the intent was to guarantee the debt secured by the mortgage.</p> <p>3ST. executed an assignment of the bond and mortgage, which did not expressly assign the guaranty; he subsequently executed another including the guaranty. Held, that this was sufficient to vest the guaranty in the assignee.</p> <p>It seems an assignment of a bond and mortgage carries with it a guaranty of payment or collection, although not mentioned in the assignment.</p>

(Reported below, 20 J. & S. 334.) This action was brought to recover the amount of three drafts drawn by Vogel & Co., of Hong Iiong, upon plaintiff’s agent in London, and accepted and paid by it. The plaintiff is a Canadian banking corporation, having agencies in London and in Hew York city.

This action was brought to foreclose a mortgage of $500, executed May 21, 1884, upon premises in Brooklyn, by defendants Emma and Samuel S. Ackerly to Maria Moss, and by her assigned to the plaintiff. A sale of the premises, with other relief customary in such actions, was sought for.

<p>Plaintiff was injured while using a circular saw in defendants’ factory where he was employed. In an action to recover damages for the injury it appeared that the accident was caused by the dullness of the saw. Defendants had furnished duplicate saws so that when one needed to be sharpened and reset it could be replaced by the other. It was the duty of one M., also a servant of defendants, to change, sharpen and reset the saws when necessary. On the morning of the accident plaintiff notified M. that the saw he was using was dull and asked for another. M. replied that he had no time then to sharpen a saw and directed plaintiff to go on with his work. Held, that plaintiff was properly nonsuited; that no negligence on defendants’ part was shown, that their duty was performed when they furnished suitable saws and the means and conveniences for keeping them sharp and properly set; that the dullness of the saw was not a defect in any legal sense, and the negligence, if any, was that of M., a fellow-servant.</p>

(Reported below,- 39 Hun, 145.) This action was brought to recover damages for the breach of a contract of purchase of a quantity of cocoa. Upon defendant’s refusal to receive and pay for the goods they were sold on his account, and the difference between the purchase-price and the net proceeds of sale plaintiff sought to recover. The material facts are stated in the opinion.

Reported below, 38 Hun, 86.) These actions were brought upon policies of marine insurance issued by the defendants, respectively, upon plaintiff’s schooner Alida. The material facts are stated in the opinion. The indorsement against actual total loss only,” written in the policy, controls and supersedes any printed portion of the policy, if any there be, inconsistent with these words. (Harper v. N. Y. C. Ins. Co., 22 N. Y. 444; Harper v. Albany Ins.

(Reported below, 39 Hun, 498.) This action was brought against defendant, a religious corporation, upon eight certificates or promissory notes, all similar in form, of one of which the following is a copy: “ St. Anthony’s Roman Catholic Chübch, ) “ Greenpoint, Brooklyn, E. D., April 1, 1876. f “ This certifies that St. Anthony’s Roman Catholic Church, of the city of Brooklyn, county of Kings, and state of Hew York, is indebted to Edwin Harlow, or order, $500, duly received…

These are cross appeals from portions of a judgment of the General Term of the Supreme Court, in the first judicial department, entered upon an order made April 21, 1885, which reversed in part and affirmed in part a judgment entered on a decision of the court on trial at Special Term. This action was brought to compel an accounting as between copartners.

(Reported below, 47 Hun, 203.) The material facts are stated in the opinion. The city officials complied with the law in letting the contract for the improvement in question. (Laws of 1873, chap. 335, § 9 ; Rev. Ord., 1880, 117; id. 1866, 189, § 17 ; In re Merriam, 84 N. Y. 596; In re Mahan, 20 Hun, 301; In re Met.

(Reported helow, 47 Hun, 183.) Though the legislature has no power under the language of a particular Constitution to appoint persons to office, yet it may constitutionally regulate the mode of appointment. (People v. Hurlburt, 24 Mich. 44; State v. Kennon, 7 Ohio St. 546; Capen v. Foster, 12 Pick. 485; People v. Lacombe, 99 N. Y. 43.) The right of the legislature to prescribe and ascertain qualifications is not inconsistent with the executive power of appointment.

(Reported below, 46 Hun, 444.) The relators were assessed for the year 1886, in the city of Troy, upon three parcels of land, one parcel known as “ River View,” containing thirty acres, which was assessed at $60,500; lot 194, on the west side of Third street, on which were two houses numbered 47 and 49, assessed at $29,000, and a third parcel, containing ten acres, which was assessed at $12,000, but which latter assessment is not now in controversy.

(Reported below, 39 Hun, 576.) This action was brought to recover the amount of a tax upon certain real estate situate in the city of Hew York, purchased by plaintiff of defendant, which plaintiff had been compelled to pay, but which he claimed defendant, under his contract of sale and under the covenants in his deed, was obligated to pay. The facts alleged in the complaint are, so far as material, stated in the opinion.

The nature of the action and the substance of the pleadings, so far as material, are set forth in the opinion. The constitution and by-laws of the Stock Exchange, or either of them, constitute a relation of copartnership between the members of the exchange. (White v. Drake, 3 Abb. N. C. 133, 134, and note; Moak’s Van Santvoord’s Pldgs. 524, 525.) The contract provides for the sale of the seat in a case like this, and not for an appropriation of the proceeds.

This action was brought upon an agreement executed by the defendants, of which the following is a copy: “¡New York, April 4, 1873. “ Whereas Christopher Meyer has purchased six hundred shares of the stock of the Blair Iron and Steel Company, sold by A. S. Diven, trustee of said company, at tne price of fifty dollars per share; “ Now we, the undersigned, in consideration of one dollar to us in hand paid, the receipt whereof is hereby acknowledged, do hereby agree that if at…

<p>Appeal from order of the General Term of the Supreme Court in the second judicial department, made December 15, 1885, which affirmed an order granting a new trial.</p>

<p>Appeal from order of the General Term of the Supreme Court, in the second judicial department, made December 15, 1885, which reversed a judgment in favor of plaintiff, entered upon a decision of the court on trial, and granted a new, trial at Special Term.*</p>

<p>Appeal from order of the General Term of the Supreme Court in the first judicial department, made October 8, 1885, which reversed a judgment in favor of plaintiff and granted a new trial.</p>