Volume 11 — New York State Reporter

<p>Referee—Findings of—Issue of the terms of an agreement—What THE FINDINGS MUST CONTAIN.</p> <p>Where the complaint alleges an agreement, stating its terms, and the answer also alleges an agreement, but differing in respect to its terms, the issue is as to the terms of the agreement alleged in the pleadings, and the findings must be confined to the issue as made.</p>

<p>Appeal from judgment upon conviction of the defendant at Wyoming oyer and terminer of the crime of murder in the first degree.</p>

<p>Pleadings — Irrelevant and redundant matter—When not to be STRICKEN OUT—DISCRETION OE THE COURT.</p> <p>Where each portion of the complaint specified in the notice of motion is an entirety, the motion cannot be granted as to a part of a specified portion and denied as to the residue. This rule is not an absolute one, but it is competent for the special term to adopt it, in its discretion, in a proper case.</p>

<p>Appeal from a judgment rendered at the Erie special term upon the report of a referee under an order appointing him to hear,.try and determine the issues in an action for divorce on the ground of adultery.</p>

<p>1. Pleading—New matters constituting defense must be pleaded— Code Civ. Pro., § 500.</p> <p>New matters constituting a defense must, under Code Civil Procedure, § 500, be pleaded. This is applicable to a case where the illegality of the consideration of a contract is urged.</p> <p>2. Auction—Agreement as to bid, when illegal—When legal.</p> <p>Although an agreement by two or more persons that one of them only will bid at an auction of property and will become the purchaser for the benefit of them all, if made for the purpose of preventing competition at the bidding and depreciating the price of the property below the fair market value, is illegal, yet it is otherwise if the purpose of the agreement be to enable each of the parties to become a purchaser, when he desires a part of the property offered for sale, and not the whole; or if the agreement be for any other honest and reasonable purpose.</p>

<p>Appeal from a judgment in favor of the defendant entered on the report of a referee.</p>

<p>Motion by the plaintiff for a new trial on exceptions taken at the Steuben circuit and ordered to be heard at the general term.</p>

<p>1. Insurance (fire)—Action on policy—Change of title to insured property—When effected.</p> <p>The name of a firm was changed and an inventory of the property-taken, it being treated thereafter in most respects as belonging to one of th" partners. Notice of dissolution was afterwards published, and subsequent to that the partners settled, one assigning to the other all his interest in the business and property, and taking his note for the price. Held, that within the meaning of a clause in a policy of insurance, avoiding it in case of change of title to the property, there was no such change effected by any of the steps taken before a loss which occurred before the assignment.</p> <p>2. Same—Transfer from partner to partner does not avoid policy.</p> <p>Held, That the transfer by one member of a firm to another was not such an alienation of title or transfer of interest as to avoid the policy.</p> <p>3. Same—-Change of firm name of insured not a defense.</p> <p>Held, That the fact that the insured changed itsjbusiness name was not a defense to an action on the policy.</p> <p>4. Knowledge of general agent is imputable to principal.</p> <p>Held, That changes in the building coming to the knowledge of the-general agent of the insurers after the fire, his knowledge was that of his principal.</p> <p>5. Same—Evidence— Statements of opinion by insured in proofs of loss—Hot conclusive.</p> <p>Held, That a statement of opinion made by the insured in the proofs of loss as to the place at which the fire started, while admissible as evidence, was not conclusive, and that the question was one of fact for the jury.</p> <p>6. Evidence—Of expert—When competent.</p> <p>Held, That the opinion of an expert witness was competent on a hypothetical state of facts parallel to the case, but not on the facts as shown by the evidence, as the conclusion was to he drawn from the evidence by the jury.</p>

Appeal from a decree of the surrogate of Erie county admitting to probate certain instruments propounded as the last will and testament of the said deceased and codicils thereto

<p>Appeal from a judgment in the plaintiff’s favor, entered upon the report of a referee. The action was for the conversion of a quantity of grain.</p>

The action was to recover damages which the plaintiff alleged he had sustained while traveling on a highway in the town of Royalton, caused by the same being in an insecure and unsafe condition. The verdict was tor $3.00.

<p>Motion by defendants, impleaded, etc., for new trial after interlocutory judgment.</p>

Holder, in his capacity of assignee, held the lands described in the complaint in trust, and also providing that the defendant, Alonzo_ Bradner, render an account of the rents and income derived from the premises.

<p>Appeal from a judgment entered upon the report of a referee dismissing the plaintiff’s complaint, with costs.</p>

The action is to charge the defendant as an indorser of a note, of which the following is a copy: “Buffalo, April 3, 1884. “Four months after date, I promise to pay to the order of R. W. Driggs & Co., one hundred dollars, at Farmers and Mechanic’s National Bank, Buffalo. Value received, with interest. (Signed) “U. DRIGGS.” The note was indorsed by the payees named, the firm of R. W. Driggs & Go.

<p>Motion for a re-argument.</p>

The commissioners appointed in this matter to inquire with the aid of a jury as to the alleged incompetency of John Baird to manage himself and his affairs by reason of lunacy, returned the inquisition of the jury, in which fifteen of the eighteen jurors concurred in the finding that the said John Baird is incompetent. One of the commissioners and three of the jurymen did not concur in the inquisition.

<p>1. Trade mark—“ Union labels ”—Entitled to protection.</p> <p>If certain laborers who, through a union, in the adoption of and in compliance with any set of rules which guarantee or purport to insure a certain class of labor, have thereby increased a demand for their particular labor, and if this union sees fit to designate the labor of its members by any particular symbol, label or sign which is descriptive of the origin or ownership of the labor, such a device as may be adopted is entitled to the protection of a court of equity from fraudulent simulation.</p> <p>2. Same—Union label valuable—Injunction issued to restrain imitation.</p> <p>This action was brought by plaintiffs on behalf of themselves and all other members of the Cigar Makers International Union of America to restrain the defendant from infringing the exclusive right of plaintiffs and other members of said union to use the “ Union Label,” and also to restrain him from using any spurious imitation of the genuine label. Held, that the right to the label was a valuable one; that the plaintiffs were entitled to be protected in the use and value of their property; that, as in this-case, it can be adequately protected only by an injunction, it would be issued.</p>

<p>Libel—Pleading—Term “parent” employed in libel—Who may sue.</p> <p>The term “parent” employed in a libel, when applied to the case of a person whose father and mother are living, involves one of intent as to which parent is intended, and this question is ordinarily one for the jury. It is an issuable fact, however, and as the term does not include both parents, it is necessary in an action by either to recover damages to allege in the complaint that the term was used concerning the one complaining. If the term “parents” had been used, either might sue without this allegation, for the libel would have sufficiently connected both without the aid of extrinsic matter.</p>

<p>Deposit m lieu op bail—Effect of judgment fob defendant from WHICH AN APPEAL HAS BEEN TAKEN.</p> <p>When a cause is tried and results in a judgment for the defendant, the order of arrest issued in the action is vacated by operation of law and the defendant’s bail is discharged. If the defendant has deposited money in lieu of bail he is entitled to have the deposit returned, notwithstanding the fact that the plaintiif has appealed and given security to effect a stay. The adjudication is final beca se the order of arrest cannot be re-instated by a reversal of the judgment; a new order would have to issue to warrant the re-arrest of the defendant.</p>

<p>Appeal from judgment entered on verdict of jury in favor of the plaintiff.</p>

<p>Renewal of agreement—Implication as to terms.</p> <p>Where a contract made by the year is continued, the implication is that it is renewed for another year, and the onus is on the person claiming the contrary, to prove it.</p>

<p>Appeal from order vacating attachment as to the partnership property of the defendants.</p>

<p>Promissory note—Liability or indorser.</p> <p>One, Rosanna Spaulding, made a promissory note payable to the order of the plaintiffs. James J. Spaulding, the defendant indorsed it. The note was afterwards delivered to the payees (the plaintiffs), who sued James J. Spaulding, as indorser thereon. Held, that as the-action was brought by the payees of the note, they were presumably the first indorsers thereon, and could maintain no action against James J. Spaulding, without alleging and proving facts sufficient to overcome the presumption and charge him as first indorser.</p>

<p>Trial by the court without a jury.</p>

Appeal by plaintiff from that part of the judgment which refuses a separation and by defendant from the portion dismissing his counter-claim for absoluto divorce.

<p>1. Wills—Legacy—What is a charge on the lands of the testator.</p> <p>A testator, by his will, left a legacy to a person named therein, and directed that it should be paid by his executors from moneys obtained from the sale of certain land, or otherwise, if it should seem best to them, and further directed that this legacy should be deemed subservient to all others. Held, that the legacy was a charge upon the lands, the proceeds of the sale of which were specifically appropriated to its payment.</p> <p>2. Same—Directions as to funds from which legacy shall be paidtIntent.</p> <p>Held, that the bequest was made subservient to all others for the reason that it was to be paid out of the proceeds of the land unless the executors thought it wise or proper in then- discretion to pay it out of other moneys.</p> <p>3. Same—Discretion allowed in payment of legacy—Limits of.</p> <p>Held, that the only discretion granted was to use other moneys than those derived from the sales of the land if it should seem best.</p> <p>4. Same—Payment of legacy.</p> <p>Held, that the moneys realized out of the sales of the land could not be diverted to the payment of other legacies, the one in question being left in the meanwhile unpaid.</p>

<p>Appeal from order denying motion to strike out the answer or to make the same more definite and certain and for a bill of particulars.</p>

<p>1. Judicial bale—Irregularity—Purchaser cajnnot raise question.</p> <p>The purchaser at a judicial sale of real property by a referee cannot raise the question as to the sale of two lots together.</p> <p>% Same—Irregularity—How cured.</p> <p>Any irregularity committed by the referee in so conducting the sale would be cured by an order of the court confirming the sale.</p> <p>•3. Same—Order directing purchaser to complete sale.</p> <p>An order directing the purchaser to complete the sale is equivalent to such an order of confirmation.</p>

<p>Specific performance of contract for purchase of land—When compelled—Title.</p> <p>In action to compel the specific performance of a contract for the purchase of land the proof showed that the property belonged to Claus Bulwinkel on August 15,1860, when he executed a mortgage to one, Cheesman covering five lots of land in all and including the premises in question. Cheesman began foreclosure, August S3, 1863, which was continued after his death by his executors, and ón decree and sale the executors became purchasers and took a deed in their capac.ty as executors. The summons was served upon Bulwinkel by publication, although the proof shows he was dead at that time. Under proceedings subsequently taken by these executors for foreclosure of same mortgage by advertisement, enough property was sold, exclusive of the premises in question, to satisfy the mortgage debt. T-he executors, thereafter, gave a quit-claim, de d of these premises to the heirs of Bulwinkel and these heirs conveyed this property to plaintiff. Held, that the title of plaintiff is valid.</p>

<p>Appeal from a judgment entered after a trial at circuit, and from an order denying a motion for a new trial.</p>

<p>1. Action to set aside a judgment declaring a marriage null— Judgment of nullity not a bar.</p> <p>In an action to set aside, because obtained by fraud, a judgment declaring a marriage a nullity, Held, that the judgment thus sou. ht to be set aside could not be set up as a bar to the action to set it aside."</p> <p>2. Same—What is not a bar.</p> <p>Held, that an order denying the motion of the plaintiff in this action to open her default and let her in to answer in the action for nullity, was not a bar to her action to set aside the judgment as having been obtained by fraud.</p> <p>3. Same—When not maintainable.</p> <p>The complaint in this action did not controvert any of the facts set up in the complaint in the action for nullity, i.or show that the plaintiff had any defense in that action of which she had been deprived. The complaint in the action for nullity set forth a fraud on the part of this plaintiff sufficient to warrant the court in setting aside the n arriage entered into with this defendant. Held, that the plaintiff could not maintain this, action.</p>

<p>Costs—What defendant can tax as disbursements..</p> <p>The only disbursements which a defendant can tax are those which he has incurred, or will incur, in the entry of judgment, and the issuance of process for its collection.</p>

<p>Civil Damage act—Laws 1873, chap, 046—Proof—Sufficiency.</p> <p>In a suit against defendant under the civil damage act (Laws 1873, chap. 646), for loss of support, the plaintiff t stifled that she had seen her husband there on a hundred occasions, and that his condition at these times was nearly always one of gross intoxication; that she begged the defendant not to give him anything more to drink, and that the defendant then said: “Mr. Ackerman, go home; we do not want such men as you here; you are no credit to this place, and I promise you, Mrs. Ackerman, he shall never have another drop to drink in th s place.” Plaintiff’s daughter corroborated her, and there was other evidence of a sim lar nature. Held, that there was sufficient evidence to warrant a jury in finding that the intoxication of the plaintiff’s husband when at the defendant’s saloon was caused in whole or in part by liquors furnished to him by the defendant or his agent, and it was error to direct a verdict for defendant.</p>

<p>Evidence—Competency under Code Civ. Pro., § 829.</p> <p>An action was brought to compel the specific performance of a covenant to renew a lease. The original lessee was dead, and the plaintiff derived title to the said lease by assignment from his executrix. The defense was that the said lease was obtained by fraudulent representations. Held, that the defendant could not testify to personal transactions or communications with her deceased lessee, from whose executrix the plaintiff derived his interest in the lease.</p>

<p>Costs—In partition actions—Code Civ. Pro., § 1579—Additional allowances—When they may be made to each side.</p> <p>In partition actions, where final judgment, confirming a sale, is rendered, under the provisions of section 1579, each party to the action has the right to have his costs paid to his attorneys out of the proceeds of the sale, except those costs which by the second clause of the section are within the discretion of the court.</p>

<p>€osts—In partition actions—Code Civ. Peo.. §§ 3228,1579.</p> <p>In partition actions, where a sale is ordered, plaintiff's application for additional costs should he postponed until final judgment.</p>

<p>1. Receivers—Compensation of—Code Civ. Pro., § 3320—Subject of REVIEW AT GENERAL TERM.</p> <p>It is provided by Code Civil Procedure, section 3320, that a receiver, except as otherwise specially provided by statute, is entitled in addition to his lawful expenses to such a commission, not exceeding five per centum upon the sums received and disbursed by him, as the court by which, or the judge by whom, he is appointed allows. Held, that those cases of the compensation of receivers which are not governed by Laws 1883, chapter 378, are subject to the control of the supreme court in the exercise of its discretion at the special term and upon review at the general term within the limits of five per cent.</p> <p>2, Attorneys—Allowance to—What unauthorized.</p> <p>The case at bar not yet being determined, and no award of costs having been made: Held, that an allowance to attorneys for the parties was unauthorized.</p>

<p>1. Practice—Request to direct verdict—Effect of.</p> <p>The request of the counsel that the court direct a verdict is, in effect, a submission of such questions of fact as exist in the case, if any, to the decision of the trial judge and a waiver of the right to go to the jury.</p> <p>2. Master and servant—Notice to servant of his suspension—Does NOT IMPLY HIS DISCHARGE.</p> <p>The notification to a servant that he is suspended from duty does not carry with it the implication that he is absolutely discharged from service.</p> <p>8. Officers—Power to remove does not imply authority to suspend— Power of commissioners of excise in New York city.</p> <p>The power to remove does not carry with it the power to suspend. In the absence of any statute expressly conferring it upon them, the commissioners of excise do not possess any power to suspend their employees.</p>

The action is brought upon a promissory note for $3,226.25 and interest payable on demand to the plaintiffs or their order, the execution and delivery of the note being admitted.

<p>Appeal from judgment entered on the report of a referee.</p>

<p>Civil service—Election officers—Exempt from examination under.</p> <p>Election officers now in office, and inspectors of election and poll clerks are exempt from examination in accordance with chapter 354, Laws 1883, as the same is now amended.</p>

<p>1. Pleadings—Amendment—Power of trial court with regard to— Code Civ. Pro., § 723.</p> <p>A trial court has the power to allow an amendment in pleading, even so far as adding an additional allegation. See Code Civil Procedure, section 723.</p> <p>3, Evidence—Objection to—What mat not be taken on appeal.</p> <p>Where an objection to evidence on the allegations of a pleading may he removed by amendment allowed by the trial court, it cannot for the first time he made on appeal.</p> <p>8. Negotiable paper—Fraudulent diversion of—What available as A DEFENSE.</p> <p>Where negotiable paper has been fraudulently diverted from the purpose for which it was made and indorsed, this is a valid defense to an action against the maker and indorser by holders who have not parted with value for it.</p>

<p>Appeal from an order sustaining exceptions to a referee’s report and directing the deduction of a sum of money from the judgment upon which the action has been brought.</p>

<p>1. Evidence—A party as witness—Freedom in examination.</p> <p>No party should he allowed to withhold any evidence legitimately hearing upon the issue involved, and the opposing party should not he compelled, except in extreme cases, to state the particular object in view by a question asked of his adversary. The examination of parties must be broader than that which controls witnesses who have no disposition to suppress the whole proof which they may be able to make. The rule should be conducive to a full and fair development of the relations between the parties, and nothing repressed which tends legitimately to that end. .</p> <p>3. Trials—Charge to the jury—Issue of fraud—Improper suggestion.</p> <p>The judge, in charging the jury, suggested that if the plaintiffs were unsuccessful, they might ultimately lose the whole sum which they claimed as damages. An exception was taken. Held, well taken. The issue was whether a fraud had been perpetrated, and that was the only issue.</p>

<p>1. Habeas corpus—Writ of—When prisoner is entitled to discharge —Code Civ. Pro. § *050, subd, 8—When not.</p> <p>In order to entitle a prisoner to discharge under section 2050, Code of Civil Procedure, he must have been formally discharged on a final order. And by subdivision 8 of same section a person discharged for any illegality in the final order, judgment or other mandate, is not entitled afterwards to be discharged when he has been imprisoned again by virtue of a lawful writ, etc., for the same cause of action.</p> <p>2. Alimony—Disobedience to order directing payment of—Commitment for—Code Civ. Pro., § *274 does not apply—§ 2268.</p> <p>Section 2274, Code of Civil Procedure, refers to the affidavits upon which a warrant of attachment may be issued to try the defendant before the court to answer for his alleged contempt. A proceeding to punish for not paying alimony is not such a proceeding. By section 2268, Code of Civil Procedure, the court can dispense with this procedure.</p> <p>8. Same—Contempts—Requirements of section 2284, Code Civ. Pro.— Failure of order to state the formal fine.</p> <p>The order may be defective in that it does not state the formal fine; yet it will not be substantially so if it prescribes the amount to be paid to gain relief from the imprisonment. This formal ty might be servicable in support of an appeal from the order, but it cannot be by way of sustaining an application for discharge in a collateral proceeding.</p> <p>4. Same—Punishment for not paying same—Referee's fees not allowed.</p> <p>The party is not suoject to imprisonment for the non-payment of referee’s fees. No provision of the Code sanctions the insertion of the referee’s fees in the order. But he is not entitled to be discharged from imprisonment because this particular direction has not been authorized. Before he can secure bis discharge on that ground, he must pay the other sums which he has been legally directed to pay and adjudged in contempt for not paying.</p>

<p>Appeal from a judgment recovered at the special term.</p>

<p>Evidence—Notice to produce—What must be proved to allow admission OP SECONDARY EVIDENCE.</p> <p>Upon service of a notice to produce, in order to allow the admission of secondary evidence, it must he proved that the evidence to which the notice refers was in the possession of the party upon whom the notice was served.</p>

<p>Appeal from a judgment recovered on trial at the special term.</p>

Writ of certiorari to review the proceedings by which the relator has been removed from the pohce force of the city of New York.

<p>Frauds (statute of)—Oral agreement to reconvey real property— SUFFICIENCY OF.</p> <p>William Agate formerly owned the premises in question. They were incumbered by mortgages, and he was also indebted to John Agate, his father. These mortgages were purchased by John Agate. He foreclosed them and at the sale bid them in and took a sheriff’s deed therefor. John Agate subsequently died, leaving five heirs at law, three of whom conveyed the premises to the defendant. William Agate, one of the heirs at law, and the father of the plaintiff in this action, did not join in the deed. The plaintiff and only heir at law of William Agate now brings an action to redeem, alleging for that purpose an agreement to have been made between William and John Agate that the latter should secure the title to the property and hold it for money to be advanced as well as security for other indebtedness. Held, that the evidence being sufficient to maintain the existence of the agreement the plaintiff is authorized to bring this action.</p> <p>Held, The payment of the indebtedness as security for which the land was held must be proved.</p>

<p>Motion for judgment upon report of referee to whom was referred certain issues of fact.</p>

<p>1. Negligence—Railroads—Duties with regard to crossings.</p> <p>The plaintiff’s intestate while attempting to cross the track of the defendant, at the intersection with one of the streets of the city of Buffalo, at the grade of the street was struck by one of the defendant’s trains and killed. The defendant’s cars on the tracks near that on which the accident took place, stood so as to limit the opportunity which the deceased had to observe the train as it neared the crossing. Held, that it was the duty of the defendant in operating its railroad in some manner to give notice of the approach of its trains, so that those traveling on the streets, and about to cross its tracks, could avoid a collision, by stopping in a place of safety during the passage of trains.</p> <p>2. Same—Grade crossings—High degree of care demanded.</p> <p>Held, that in every case where the crossing was at the grade of the street, and upon which there was considerable travel, it was the duty of the defendant to use a high degree of care.</p> <p>3. Same—Crossings—Limit of duty in regard to.</p> <p>Held, that the rule which imposed the obligation óf care and prudence on the part of the railroad company, and measured its liability to others who might receive injury from moving cars arid engines, did not call for the performance of any act outside of or disconnected with the actual operation of the road by the company.</p> <p>•4. Same—Evidence—What needed to peodtjce conflict of evidence.</p> <p>Held, that positive evidence having been adduced to the fact that the defendant rang the bell of the engine as it approached the crossing, there must, to warrant the submission of the question to the jury, be something more than the testimony of witnesses that they did not hear the bell; that it must appear that their attention was attracted to the fact so that their evidence would tend to negative that of the defendant.</p> <p>6. Same—Ringing of bell—Statute bequikeng—Does not apply within city limits.</p> <p>Held, that if the bell was not rung, that omission alone did not establish a case against the defendant entitling the plaintiff to recover; that where the street crossing was within the limits of a city, the statute requiring the ringing of the bell had no application.</p> <p>6;; Same—Duty as to cbóssings—What is not a dischabge of.</p> <p>Held, that the defendant did not discharge its duty to the public merely by ringing the bell, if the speed of the train was such as to render the notice thereby given of no avail.</p> <p>1, Same—Question of negligence—Elements fob considekation of juby.</p> <p>Held, that the obstructions to the intestate’s view, and the rate of speed of the train, were elements for the consideration of the jury.</p> <p>8. Evidence—Objection—When genebal objection unavailing.</p> <p>Held, that a general objection to an answer, part of which was competent, was properly overruled.</p>

The trial was moved before the court without a jury, and thereupon the defendant moved to dismiss the complaint for the reason that upon the facts stated the plaintiff was not entitled to any relief.

<p>Appeal from a judgment entered upon a verdict in the plaintiff’s favor for the sum of $102 damages and costs. The action was to recover damages for the breach of a contract alleged to have been made by the defendant with the plaintiff.</p> <p>The defendant, in the year 1879, was engaged in delivering lectures on public themes for a. compensation. The plaintiff claims, and gave evidence tending to prove, that the defendant agreed to visit the city of Auburn, where the plaintiff resided, and deliver one of his lectures for the sum of $250; the plaintiff to have the sale of and money received for the admission tickets. The defendant did not attend in pursuance of the terms of the alleged agreement, and the question argued on the appeal chiefly related to the question of damages1, and exceptions taken to the admission of evidence.</p>

<p>The plaintiffs, on May 4, 1887, bought a bill of goods from the defendant at the agreed price of $165.87, which they paid him May 16,1887. Overlooking the fact of payment, the plaintiffs sent the defendant, by mail, June 2, 1887, the bill with a check for $165.87. The bill was receipted by the defendant and returned to thé plaintiffs, and the defendant deposited the check, which was paid on presentation. The plaintiffs subsequently discovered their error and brought the present action to recover back the last payment, less $16.50, credited on account thereof. The plaintiffs obtained an order of arrest at the time of commencing, the action, because the defendant refused, on demand, to return $149.37, the balance due. The defendant moved to vacate the arrest, and from the order made, denying the motion, the present appeal is taken.</p>

<p>The action is by an undertaker to recover $385 for services rendered in burying the body of a child killed upon the defendant’s railway. The age of the child does not appear. The controversy is over the amount of the bill. The jury found'a verdict in favor of the plaintiff for $328.50, and from the judgment entered thereon the defendant appeals.</p>

The defendant was sued upon an advertising contract ■drawn so as to constitute what has been held to be a promissory note. He interposed an answer denying that he made the contract sued upon, and alleging in detail the nature of the contract he made. Upon the trial the defendant undertook to prove how he came to execute the writing sued upon, and the plaintiff’s counsel objected, whereupon the defendant’s counsel moved to amend the answer by pleading fraud.

<p>On October 19, 1885, at Eighty-fourth street • on Second avenue, the plaintiff signaled to the driver of one of the defendant’s open cars on the down trip, to stop. Át the corner crossing, the car came almost to a full stop. The plaintiff attempted to get on, the driver let the brake go, the car gave a lurch and knocked the plaintiff off the plat - form against one of the iron pillars of the elevated railway, and the car, by some means, dragged the plaintiff a distance of eight or'ten feet. The plaintiff’s hips, ribs and shoulder struck the elevated pillar. The car tore the plaintiff’s pants and stockings, the blood came out over the his shoe, and he afterwards fainted. His leg was cut making a gaping wound. These facts were proved on the trial, and the jury awarded the', plaintiff §600 damages. The defendant appeals.</p>

<p>Negligence—Duty of employer to furnish proper machinery and,to KEEP IT IN REPAIR.</p> <p>The plaintiff, an employee of the defendants, was working a machine, stamping covers for tin pails. The machine worked with a treadle. No movement was required to make the stamp go up. It went up automatically. It required an active movement of the foot to bring it down with sufficient force to impress the mould upon the covers to put them in proper shape Contrary to the proper and usual working of the machine the Stamp on the occasion comp.ained of dropped down of its own weight while the plaintiff was in the act of putting the cover in the mould and smashed his fingers. Held, that the p.aintiff had made out a prima facie ■ case of negligence against his employers and it was error to dismiss the complaint. The facts and inferences to be drawn from them ought to have been submitted to the jury under proper instructions.</p>

The action was brought to recover $1,606.72, for work done and materials furnished to the defendant by Hall & Garrison, the plaintiff’s assignors. The defendant did not dispute the performance of the work or the furnishing of the material, and disputed only four charges in the plaintiff’s bill, aggregating $216.

The plaintiff recovered judgment against the defendant, and after the return of an execution issued thereon unsatisfied, he obtained an order requiring Thomas Hillhouse, Esq., as president of the Metropolitan Trust Company, to appear and be examined concerning certain property of the judgment-debtor said to be in its possession.

<p>1, Insurance (life)—Policy.</p> <p>While one cannot insure a life in which he has no interest, any person may insure his own life and make the policy payable to any person he may name therein. General expressions in a policy are controlled by the special provisions thereof, and the written parts control the printed parts where the two conflict. The term “ guardian" considered.</p> <p>3. Same—Designation of beneficiary.</p> <p>A condition of a policy authorizing payment to one of a class of enumerated persons yields to and is controlled by that portion of the contract containing the special designation of a particular beneficiary.</p>

<p>1. Contract of sale—Statute of frauds.</p> <p>Where a contract is for an article coming under the general denomination of goods, wares and merchandise, and it is made with one who manufactures and sells that kind of commodity to those who traffic in it, the quantity required and the price being agreed upon, it is a contract of sale. within the meaning of the statute of frauds. It is unimportant whether the manufacturer and vendor had, when the order for the article was given, the requisite quantity on hand or had to manufacture it afterward.</p> <p>2. Same—Sale by sample.</p> <p>Unless it affirmatively appears that the vendor was required by the contract to manufacture the goods himself, the transaction is a sale .by sample.</p>

The action is brought on an undertaking for costs given by the defendants to James Kéarney, a defendant in a suit brought by James F. Thomson, a non-resident plaintiff. The plaintiff in this case claims as assignee of the judgments, hereafter referred to, and also avers that he was the attorney for said Kearney.

This action was begun October 16, 1884, by Hiram Pool, as plaintiff, against one Vandewater. It was claimed by the plaintiff that the firm of Nichols & Co. had, from time to time, borrowed money from him, and they in return had assigned to him, as collateral security for such loans, various hook acounts owing that firm. Among the acounts so assigned was one against said Vandewater. But it appears that on September 4, 1884, the defendants Harris, to whom.

On the 1st day April, 1879, the defendant became indebted to the plaintiff in the .sum of $37.50 for rent of certain premises for that month, payable in advance. The defense interposed is the Statute of Limitations.

<p>Appeal from judgment entered by direction of the court in favor of plaintiff.</p>

This is an action on a lease for a balance of rent. The defendant testified that before signing the lease, the plaintiff represented the premises to be in first class order, and that defendant could rely on his word that the house was perfectly tenantable, which the defendant believed. That these representations were soon discovered to be untrue.

<p>Appeal from judgment entered upon a verdict in favor of plaintiff, and from an order denying a motion for a new trial.</p>

<p>Trial before the court without a jury.</p>

<p>1. Surrogate’s court—Jurisdiction in settlement of accounts of administrators WITH THE WILL ANNEXED.</p> <p>The testator, by his will, gave the use of all his real estate and personal property to his wife during her lifetime; after her death the property was to be divided as he there directed. After certain money legacies following, he directed the residue to be equally divided between his heirs if any residue should remain. Held, that in a proceeding for the judicial settlement of the accounts of an administrator with the will annexed, a surrogate’s court has the power to interpret the will so far as the distribution of the property was involved in the accounting; that this power was incidental to that expressly conferred of directing and controlling the accounts of the executor, and enforcing the payment of legacies and debts.</p> <p>2. Same—Limit of jurisdiction.</p> <p>Held, that when the question of the rights of parties as to legacies was not involved in the accounting and not necessary to be determined by the surrogate, he had no jurisdiction to decide whether the legacies were chargeable upon the real estate.</p> <p>8. Wills—Legacies—When chargeable on real property. - ...</p> <p>When a testator gives several legacies, and then, without creating any express fund or trust for their payment, makes a general residuary disposition of the whole estate blending the real and personal together in one fund, the real estate is to be charged with the legacies upon the ground that in such case the rest, residue and remainder can only mean what remains after satisfying the previous legacies.</p> <p>4. Same—Legacies charged on real property.</p> <p>Held, that in the present case the real estate of which the testator died seized passed to his heirs, charged with the payment of the legacies, so far as they were left unprovided for by the personal property.</p> <p>6. Administrator with the will annexed—Powers of—2 Rev. Stat., 72,-| 22.</p> <p>By 2 Revised Statutes 72, section 22, it is provided that in all cases where letters of administration with the will annexed shall be granted, the will of the deceased shall be observed and performed; and the administrators with such will, shall have the rights and powers and be subject to the same duties as if they had been named executors in such will.</p> <p>6. Equitable conversion—Power of bale.</p> <p>jS/ld, that it was the intention of the testator to effect an equitable conversion of his real estate, and that there was an implied power of sale, which it became the duty of the administrator with the will annexed to execute.</p> <p>7. Personal property—Crops.</p> <p>Held, that crops growing upon the decedent’s land at the time of his death were personal property, and as they were needed for the payment of debts and legacies, were to be accounted for by the administrator.</p> <p>8. Account—Judicial settlement of — Vouchers—When necessary— Code Crv. Pro., § 2734.</p> <p>Held, that the administrator could not be credited with any payment on account of the crops, having produced no voucher therefor.</p> <p>9. Taxes—On life estate—By whom payable.</p> <p>Held, that taxes levied and paid during the life of the wife were payable by her, and could not be allowed as against the estate.</p> <p>10. Administrator—Need not buy at foreclosure sale.</p> <p>Held, that there was no obligation resting on the administrator to attend at a sale on the foreclosure of a mortgage, and bid in property, the equity of the redemption of which belonged to his decedent’s esta.e.</p>

Petition was filed March 25, 1887, asking revocation of the probate of the will of said decedent, admitted to probate in this court June 28, 1886. The grounds upon which revocation is demanded are fully specified in the petition. The names of the executors of said will, who have all duly qualified, and of the legatees named in said will, are all set forth.

Motion by plaintiff to set aside verdict for defendant and all proceedings thereunder for irregularity, in that the verdict was produced by improper and illegal influences brought to bear upon the jury, or some of them, or for such other order or relief as the court may see fit to grant in the premises.

<p>1. Insurance (marine)—Recovery on policy—What necessary to.</p> <p>This action was brought to recover on a policy oí insurance on a propeller. By the terms of the policy the defendant was bound to indemnify the assured against losses incurred by reason of the navigation of the lakes, rivers, canals, fires aod jetsons, subject to the exceptions following the clause declaratory of this liability, by which losses arising out of rottenness, inherent defects and all other unseaworthiness of the propeller were excluded from the policy. Held, that to render the company liable on the policy the loss complained of must have been occasioned by one of the risks assumed by it, and that it was not liable for a loss arising through any cause excepted by the terms of that instrument.</p> <p>g„ Same—Policy oe—Must be construed according to intention os PARTIES.</p> <p>Held, that exceptions such as those stated in the policy in question were frequently inserted in policies of insurance, and that where a policy was made to contain them, it must be construed and carried into effect according to the intention of the parties.</p> <p>8. Same—Loss within terms op policy.</p> <p>Evidence being offered tending to show that the propeller rested on a log projecting from the side of the wharf into the channel of the canal, In such a manner as to open her seams and cause her to fill with water, held, that if this fact were established, then the loss would be attributable to one of the causes for which the defendant would be liable under the language of the policy.</p> <p>4. Same—Seaworthy—Meaning op term.</p> <p>To render a vessel seaworthy it is required that she be capable of receiving her cargo in the ordinary manner of lading, without material detriment to herself and of proceeding with it on her voyage.</p> <p>6. Same—Unseaworthy—When a vessel is held to be.</p> <p>Held, that the propeller having sunk at the dock while taking on her cargo in the ordinary manner, the presumption was that she was unseaworthy.</p> <p>6, Same—Policy—Risks excepted.</p> <p>Held, that the case was not one of a failure to comply with a warranty of seaworthiness, that such a warranty relates to the condition of the ship at the time when the risk takes effect under the terms of the policy. That the loss in question was caused by the unseaworthiness of the vessel, and for that the defendant, had by its policy, stipulated that it should not be liable.</p>

<p>Motion by each party for judgment upon a verdict directed for the plaintiff by the court, subject to the opinion of the general term.</p> <p>A verdict in favor of the plaintiff was directed by the court at trial term, subject to the opinion of the court at general term.</p> <p>The following are the main facts appearing in the evidence:</p> <p>The department of docks, in June, 1881, advertised in the City Becord, inviting bids for (1) building pier, new fifty-seven, North river, and (2) repairing six piers on North river.</p> <p>Under this advertisement three estimates were received for building pier, new fifty-seven, N. it., as follows: Joseph Walsh, $59,000, with a certified check for $750 on the-Metropolitan National Bank; John Gillies, $25,000, with no check or money; Boss & Sanford, $53,000, with a certified check on the Bank of North America (not a national bank).</p> <p>Two estimates were also received for repairing the six piers on the North river, as follows: Joseph Walsh, $30,000, with a certified check for $250 on the Metropolitan National Bank; Boss & Sanford, $22,500, with a certified check for $250 on the Bank of North America (not a national bank).</p> <p>The board of docks, on July 29, 1881, decided to reject all the bids as irregular and to re-advertise the works in question.</p> <p>Walsh’s checks in both instances were enclosed in the same envelope as contained his bid, and the envelope thus containing both the check and the bid were deposited in the “estimate box.”</p> <p>This is stated to have been done by the direction of one Whitney, a clerk in the dock department.</p> <p>The function of the “estimate box” is defined in the ordinance. Section 3, article 1, chapter 7 of the Bevised Ordinances, provides as"follows:</p> <p>“The several departments and officers empowered bylaw to make contracts on the part of the corporation shall issue proposals for estimates therefor, and advertise the same as provided by law. There shall be kept by each of said departments an appropriate box, to be designated “estimate-box,” with a proper opening in the top thereof, to receive estimates for which proposals have been issued. Such box shall be kept locked, except at such times as it may be necessary to open the same to examine and decide upon said estimate, and the key thereof shall be retained by the head of the department. It shall be the duty of the head of the department to deposit in said box all estimates duly presented to him for work to be done under the direction of the department. It shall be the duty of the head of the department to deposit in said box all estimates duly presented to him for work to be done under the direction of the department immediately on the receipt thereof by him.”</p> <p>It was conceded that contracts for both the works in question were subsequently awarded to parties other than the plaintiff.</p>

<p>1. Railroads -Construction of—Agreement to pay rent—Right of STOCKHOLDER TO MAINTAIN AN ACTION.</p> <p>The defendant company by a certain lease agreed to pay to the New York company a, certain sum of money as rent to pay the principal and interest of certain bonds of the New York company, and further agreed as follows: “ Article 2. The Manhattan company guarantees to the New York company an annual dividend of ten per cent on the capital stock of the New York York company to the amount of $6,500,000; that is to say, the Manhattan company will, each and every year during the term hereby granted, beginning with the 1st day of October, 1879, pay to the New York company $650,000, free of all taxes, in equal quarter-yearly payments of $162,500, on the first day of January, April, July and October in each year, the first of said payments to be made on the 1st day of January, 1880. The Manhattan company will, from time to time, execute in proper form a guarantee to the above effect printed or engraved upon the certificates of stock of the New York company.” In pursuance of this agreement the defendant caused to be printed on the certificates of plaintiff’s stock, “ The Manhattan Railway Company, for value received, has agreed to pay to the New York Elevated Railway Company an amount equal to ten per cent per annum on the capital stock of the whole company—that is, on six and a half million dollars, payable quarterly commencing January 1, 1880.” Held, that this agreement gives a stockholder no cause of action against the Manhattan company to recover the amount to be paid to the New York company; that the Manhattan company did not thereby agree that the stockholders of the New York company should receive the money it agreed to pay to it, or that such money should be used for the purpose of a dividend on the stock of the New York company.</p> <p>2. Same—Liability of lessee after surrender of lease.</p> <p>The defendant company paid to the New York company the amount called for by said agreement, as modified by an agreement entered into October, 1881, down to May, 1884. It subsequently repudiated the agreement and, in a certain action between the parties thereto, a judgment was entered declaring the agreement null and void, and the samé was set aside and annulled as to the defendant herein. Subsequently an agreement was entered into and ratified by the stockholders of both companies, by which the Manhattan company delivered the leasehold property to the New York company, who took exclusive possession thereof. Sometime thereafter a new agreement between the elevated railroad companies was executed. Held, that the surrender of the lease and the acceptance of the demised property was valid. That after the surrender of the said lease there was no obligation or liability of the Manhattan company to the New York company.</p> <p>8. Same—Power of company to surrender lease.</p> <p>Held, that neither the agreement in question or the agreement whereby the lease was surrendered were beyond the corporate power of the contracting parties. That there was no evidence from which it could be held that a majority of the stockholders were trampling upon the right of the minority and acting in fraud of them.</p> <p>4. Corporations—Stockholders—Right of majority.</p> <p>A person purchasing the stock of a corporation thereby assents that a majority of the stockholders shall control the policy of the corporation, and, so long as the acts of the majority are in good faith and within the powers of the corporation, and are not prohibited by law, they are valid.</p>

<p>1. Vendor’s lien—When superior to that op mortgagee—Rights of ASSIGNEE.</p> <p>By the pleadings herein it was conceded that on August 7,1872, the plaintiff was possessed in fee and the owner of the premises in question. The trial judge found that subsequently a sale was made to his son, IraB. Seymour, and a delivery of the deed to Mm, not absolutely, but for the specific purpose of enabling Mm to raise certain money by a mortgage, to be executed to a certain insurance company for payment by them directly to the plaintiff of the money. The possession was not to change until after the inchoate arrangements were completed, as .far as the findings showed, and there was no request for a finding that the possession did change on said date. It appeared that the defendant McKinstry, to whom Ira B. Seymour executed the mortgage, had from the beginning and before the execution of said mortgage, full notice of the plaintiff’s rights and the: vendor’s lien. Held, that as assignee of said defendant, Sabey was no better off than his assignor, and was affected by all the equities which affected McKinstry. Sim/pson v. Del Hoyo, 94 1ST. Y., 189, distinguished.</p> <p>2. Same—Pleading—New matter of defense must be set xjf in answer.</p> <p>The character of purchaser, under 1 Rev. Stat., 762, section 87, is an independent one, different from that of assignee, and to avail the defendant it was necessary to plead and prove not only that he was a purchaser of record, but that he was a purchaser in good faith for a valuable consideration; he was bound, therefore, to deny by his answer notice, although notice had not been charged, and to prove it. These matters were new and in defense. The rule is that the defendant who would avail himself of new matter as a defense must aver and prove it.</p>

<p>1. Conversion—Defense—Burden of proof.</p> <p>This action was brought to recover possession of wood cut by the plain ifl’s intestate upon a certain lot of which he was in possession and claimed to be the owner under a paper title. The defendant admitted the taking of the wood and alleged that he owned the land upon which it was cut. Held, that the burden rested upon him to make good the title upon which he based his defense.</p> <p>2. Real property—Boundaries—How determined.</p> <p>The parties owned adjoining farms which had formerly been owned by one person. During the ownership of this person he gave a mortgage on one of the farms to which the defendant gained title by a referee’s deed given upon judgment of foreclosure and sale under the mortgage. This farm was described in the deed and mortgage as bounded in one direction by lands of the party of the first part formerly belonging to parties therein named. Held, that if the mortgagor had by adverse possession obtained title to the locus in quo, that would not control the force of the description in the mortgage; that he was at liberty to describe the mortgaged land as bounded by any line wholly on his own land.</p> <p>8. Same—Adverse possession—Waiver of claim by.</p> <p>Held, that the mortgagee was bound by that description, and that the mortgagor having bought land therein named as one of the boundaries of the mortgaged property thereby waived all claim to it by adverse possession.</p> <p>4. Same—Deed—Survey, when part op</p> <p>Held, that a survey recited in a deed as delivered together with the deed and attached thereto was a part of the deed.</p> <p>5. Same—Survey—Effect of reference to.</p> <p>This survey appearing on the record it was held, that it might be presumed that the grantee procured its entry thereon, and that when the grantee became a grantor, and by his deed referred to the record by book and page, and added that by reference thereto it would more fully and at large appear, it might be assumed that he intended to refer to all therein entered concerning the property.</p> <p>6. Same—Survey—When admissible in evidence.</p> <p>Held, that this description having been continued down to the deed to the party from whom hotli titles, were derived, was that adopted by the parties to the mortgage and was properly given in evidence</p> <p>7 Same—Evidence.</p> <p>Held, that the effect as evidence of a survey of the land made, by which the boundaries of the property coincided with that set forth in the mortgage was not overcome by testimony showing that the lines of the entire survey would not close.</p> <p>®. Conversion—Failure to establish defense</p> <p>Held, that the defendant having failed because unable to prove himself the owner of the locus in quo was not able to take advantage of the fact that it did not belong to the plaintiff.</p>

<p>Contributory negligence—When proven.</p> <p>In an action to recover damages for the death of plaintiff’s intestate the following facts were proved: That the deceased was familiar with the locality and knew that the train was late. He <vas driving a manageable team toward the track, and at a distance of forty three feet from the place where he was struck he could have seen up the track (the direction from which the train was coming) a distance of two thousand feet. After passing this point he saw the approaching train which was, at the time six hundred feet away, and hurrying up his horses tried to cross in front of it, but was kilhd in the attempt. Held, that the trial judge properly dismissed the complaint on account of contributory negligence on the part of deceased.</p>

<p>Appeal from a judgment in favor of the plaintiff entered upon the report of a referee.</p> <p>The plaintiff, on the 23d day of February, 1876, was the owner of a house and lot, and on that day conveyed the same by deed to Eunice M. Sparks, who, on the same day, conveyed the same to George A. Hubbard, who, on November 3d, 1876, conveyed the same to Stephen E. Calkins, who, on October 7, 1880, conveyed the same to Harriet M. Bullard, who, February 11, 1882, conveyed the same to Fida C. Sharp, wife of the defendant, Aurelius S. Sharp.</p> <p>The title conveyed by each of these deeds was absolute; the consideration expressed in each deed was nominal; the purpose of the conveyance was that the property should be held by the grantee in trust for the use and benefit of the plaintiff.</p> <p>There was no written declaration of trust. The referee does not find that there is any written evidence of the trust. No fraud is alleged or proved. No consideration was paid, except that Harriet M. Bullard when she held the title paid $1,750 to satisfy a mortgage upon the premises, which was a lien upon them subsisting from and prior to the date of the plaintiff’s deed t o Eunice M. Sparks, and when Mrs. Hubbard conveyed to Fida C. Sharp, the latter gave her her bond for $1,750, secured by a mortgage upon her premises, the principal of which bond and mortgage remains unpaid, together with upwards of six months interest.</p> <p>The several deeds were made upon the plaintiff’s request. Fida 0 Sharp accounted to the plaintiff for the rents of the house and lot and paid the same to her, nearly in full, from the time she took the deed until her death. She left a will, of which the defendant is the executor, with power of sale, in which she devised all her property to him in trust, to apply the income to the education and support of her son, the defendant, Harry A. Sharp, until he attained the age of twenty-one, and then to divide the property equally between himself and Harry A. Sharp.</p> <p>The defendant, Aurelius 0. Sharp, has made some payments to the plaintiff upon account of the income of the premises since the death of his wife.</p> <p>The value of the premises is not found by the referee.</p>

The will was made August 1, 1877. The testatrix lived nearly seven years thereafter, and died June 22, 1884. The will was contested for want of capacity. The appellants urge want of capacity should not have been found, but the will should have been admitted to probate.

Action by the personal representatives of a deceased person against a railroad company to recover damages resulting from the death of deceased, alleged to have been caused by the negligence of defendent. The action was tried at the Columbia circuit^ in January, 1880, before a jury; at the close of plaintiff’s evidence anon-suit was granted, and the exceptions taken by plaintiffs were ordered to be heard in the first instance at the general term.

<p>1. Railroads—Crossings—Gates at—What may be implied prom thedr being open.</p> <p>The fact that the gates at a railroad crossing are open is equivalent to a statement and notice to the public that it is safe to cross at that time.</p> <p>2. Same—Negligence—All circumstances to be considered.</p> <p>Whether or no a railroad company is liable for injuries received by a1 collision with one of their trains in crossing its line at a highway, will be judged from all the circumstances of the case. The fact that they have obeyed the statutory requirements in ringing a bell and sounding a whistle does not necessarily discharge them.</p> <p>3. Witnesses—Convicts are competent—Code Civil Pro., § 832.</p> <p>Convicts are made competent witnesses by Code Civil Pro., § 832, and the weight to be given to their testimony is for the jury to decide.</p>

<p>The plaintiff had worked for the defendant in the ice business for two or three winters. His particular business had been what is called canal work. This consists in walking upon the solid ice in the river and pulling or pushing cakes of ice along the canal or channel by means of a long handled hook. In storing ice in the houses, and in stacking it in a stack outside the houses, the workmen use a shorter hook or one with a shorter handle. The plaintiff had worked for parties other than defendant at storing ice in houses or in drawing it out from the houses. There seems to be no difference in the nature of the work of storing ice, whether it is stored within a house or in a stack. In either case, the cakes of ice are drawn or pushed from the place of delivery to their proper places in the room or in the stack. It is stated that this work of storing the ice requires a sharper hook than that which is used in the canal work.</p> <p>The plaintiff was directed one day to go and work on the stack of ice which had been commenced. He started to go to Kelly, whom he calls the boss of the stack, and to ask for a hook, when the paymaster by the ice house, Huntoon, called him back, and said: “There’s a hook you can take,” and gave him a hook, and said he would have to use it till he could get a better. He commenced working with Mattice, as it seems that the men work in couples. Mattice said he would not haul with the plaintiff if he used that hook. Plaintiff asked why. Mattice said he should sharpen it, for he might hurt somebody or himself. Plaintiff said he could not file it. Mattice said he should get some one, and pointed out one of the carpenters. Plaintiff went to this carpenter and had his hook filed, working with the carpenter’s hook until his own was returned. The carpenter said he had done the best he could, that it was not filed right the first time.</p> <p>Plaintiff then hauled ice for two hours and a half. As he and his companion were hauling a cake it struck against another, which was higher. His companion took his hook out and reached under the cake and raised it. Plaintiff struck his hook in the cake three or four times; thought it was safe, turned to pull and his hook gave way, and he fell. In trying to prevent himself from going off the stack, he fell off the stack and was injured. They were then hauling the cake to the north end of the stack. He fell off a little north of the centre.</p> <p>Mattice testifies that either the hook slipped or the ice broke. The stack was then six or eight feet high.</p> <p>The plaintiff claims that the defendant was negligent in not furnishing a sharper hook, and also in not building some bamer around the stack which would prevent men from falling off.</p> <p>The judge non-suited, and the plaintiff appeals.</p>

<p>1. Evidence—Description in deed—Admissible.</p> <p>The parties to an ejectment suit brought to recover a narrow gore of land, were adjoining owners and had each taken title under a deed executed in a partition sale in an action between the heirs of a former owner and by the several deeds executed by the referee to the persons from whom they respectively claimed. The deed to said former owner contained a description of property, including the gore in question, in which was a mention of a certain post. The defendant claimed to have been able to identify said post, and that it furnished strong evidence of the correctness of their line. Held, that the deed was admissible in evidence.</p> <p>2. Same—Presumption as to identity of landmarks with description in DEEDS.</p> <p>When, by a description, a line is run to a stake and many years after a stake is found at the place where the line is thought to come, it would be proper to believe that it might be the stake mentioned, although no one could, by direct testimony, assert that it was.</p>

<p>1. Appeal—General term—Power of reversal.</p> <p>On an appeal from an order of the special term reducing an assessment: Hill, that the general term had power to reverse the conclusion of the special term, but that some strong reason was necessary to induce such action.</p> <p>2. Assessment—Review of—What not entitled to consideration.</p> <p>By Laws 1886, chapter 284, section 1, amending the city charter of Cohoes, manufacturing corpor .tians in Cohoes are to he assessed and taxed on real and personal property in the same manner as individuals; that is, their real estate is to be put down at its value in one column, and ■ in another column the full value of the personal property, after deducting its just debts. Held, that the evidence of an officer of the corporation that its property was assessed at too high a valuation, was not entitled to consideration, he being unable io state the value of certain classes of property held by the corporation.</p> <p>3. Same—What necessary on review op.</p> <p>The statute of 1880, provides for a review where an assessment is erroneous by means of an over valuation, or is unequal, in that the assessment has been made at a higher proportionate valuation than other real or personal property on the same roll by the same officers. Held, that in order to make it appear to the court that the valuation was erroneous, it must be shown that it exceeded the value of all the personal property, after deducting the debts of the corporation therefrom.</p> <p>4. Same—When not altered.</p> <p>Held, that inability to show error in the valuation of the assessors prevented the alteration of the assessment on either of the grounds permitted by statute.</p> <p>5. Constitutional law—Local statute prescribing special mode op ASSESSMENT IS VALID.</p> <p>Held, that there was no constitutional bar to the legislature providing a mode of assessing manufacturing corporations in one city different from that prevailing elsewhere.</p>

<p>Appeal from a judgment in favor of plaintiff, entered in Albany county, upon the report of a referee.</p> <p>The action was brought to recover for professional services as attorneys and counsel rendered for defendant during several years. There was, on the trial, no controversy as to the rendition of the services, but it was contended as to all the counsel fees charged, except two items, it was agreed no charges should be made for counsel fees at all, and as to the two items which were entitled to be charged for, the amounts charged were excessive, and there was also controversy as to the amount of interest that should be allowed upon the account.</p> <p>The referee found with the plaintiff as to the right to charge for counsel fees which were controverted by defendant, and that the amounts charged for the two items in dispute were proper and not excessive. He allowed interest upon some parts of the account from the time it was presented, July 17, 1876, and on other parts of it only from the date of the commencement of the action, February 16, 1888, and upon the two items of counsel fees above referred to he allowed interest from September 30, 1872. The case has been once before this court on a former appeal. The referee who then tried the case allowed interest on the whole of account presented July 17, 1876, from that date. ■ The court held the referee erred in allowing interest piior to the commencement of the action upon the two items of counsel fees above referred to, and other items of counsel fees contested by defendant, inasmuch as these items of account were unliquidated.</p>

This was a proceeding by the railroad company to acquire title to a strip of land in the street called Broadway, in the city of Albany, of which Patrick H. Judge, who was the owner of the adjoining lot fronting upon the easterly side of the street, had title, subject to the public easement.

<p>1. Evidence—Memorandum—When not competent.</p> <p>A memorandum made by a witness at the time of a transaction, concerning which he has given testimony, is not competent evidence in support of his testimony.</p> <p>2. Same—Op value op chattel—When material.</p> <p>In an action to recover a chattel the value of it is material, as any depreciation not occasioned by the fault of the defendant is properly the loss of the plaintiff.</p>

<p>Order amending remittitur in this case. See opinion in case 10 N. Y. State Rep,, 653.</p>

<p>Appeal from order of reference.</p>

<p>Order modifying remittitur in this case. See opinion reported 11 N. Y. ■State Rep.</p>

<p>Police officer — Dismissal of—When proceedings of commissioners SHOULD BE REVERSED.</p>

Appeal by plaintiff from part of order denying motion to strike out portion of amended answer as irrelevant and redundant. Appeal by defendant from part of the same order requiring the answer to he made more definite and certain.

<p>Appeal from order denying leave to serve amended answer.</p>

<p>Practice—Bill of particulars—When ordered.</p>

<p>Complaint—Order to mare more definite and certain.</p>

<p>Practice—Opening default.</p>

<p>Stay of proceedings.</p>

<p>Attorney and client—Punishment of attorney.</p>

<p>Appeal from order denying motion to vacate attachment.</p>

<p>Appeal from judgment entered on verdict.</p>

<p>Appeal from order denying motion to make answer more definite and certain.</p>

<p>Bill of pabticulabs—When obdebed.</p>

<p>Appeal from order granting extra allowance.</p>