Volume 110 — New York Reports

<p>Appeal from judgment of the General Term of the Superior Court of the city of Hew York, entered upon an order made May 6, 1886, which affirmed a judgment in favor of defendant, entered upon an order nonsuiting plaintiff on trial. (Reported below, 21 J. & S. 249.)</p> <p>This action was brought upon a policy of fire insurance issued by defendant upon a dwelling-house.</p> <p>The material facts are stated in the opinion.</p> <p>Conditions and provisos in policies of insurance are to be construed strictly against the underwriters, as they tend to narrow the range and limit the force of the principal obligation. (Herrman v. Merchants' Ins. Co., 81 N. Y. 184; Hoffman v. Ætna, Ins. Co., 32 id. 405.) A mortgage is not a sale or transfer of the property, nor does it work any change in the title. The mortgagor remains both the legal and equitable owner and the mortgagee has only a chattel real and lien, (Conover v. Mutual Ins. Co. of Albany, 1 N. Y. 290 ; Trustees Union College v. Wheeler. 61 id. 88; Trimm v. Marsh, 54 id 599 ; Argall v. Pitts, 78 id. 243.) A deed, though in form an absolute conveyance, yet in fact intended and given only as security for a debt, is a mortgage, and is, therefore, not a “ transfer or conveyance,” or a “ sale or transfer of the property,” nor does it change the title. (Howe v. Keteltas, 46 N. Y. 605, 609, 610 ; Odell v. Montross, 68 id. 499 ; Dunham v. Day, 15 Johns. 555 ; Clark v. Henry, 2 Cow. 322; Murray v. Walker, 31 A. Y. 401 ; Carr v. Carr, 52 id. 251 ; Walton v. Crouly's Admr., 14 Wend. 63 ; Sturtevant v. Sturtevant, 20 N. Y. 39; Despard v. Walbridge, 15 id. 39.) The court upon the trial erred in holding that, because the deeds were absolute upon their face, they constituted, per se, both a change of title within the meaning of the policy, although plaintiff was able to prove, and offered to prove, that they were, in fact, given and intended as mortgages only. (Hodges v. Tenn. M. & F. Ins. Co., 8 A. Y. 416.)</p> <p>Where a fire insurance policy names the owner of the property as the person insured, and makes the loss payable to another person as mortgagee, the latter cannot recover in case of a breach of the conditions of the policy by the mortgagor. (Grosvenor v. Atlantic Fire Ins. Co. of Brooklyn, 17 N. Y. 391; In re Hine v. Woolworth, 93 id. 75.) The deeds of conveyance, absolute upon their face, were both a “ transfer ” and a “ change of title ” of the property insured which terminated the policy, although given to secure debts. (Oakes v. Mfrs. Fire and Marine Ins. Co., 131 Mass. 164; Foote v. Hartford Ins. Co., 119 id. 259; 1 R. S. 756, §§ 1, 2, 3 ; Stoddard v. Rotton, 5 Bosw. 378; Farmers' Ins. Co. v. Archer, 36 Ohio St. Rep. 608 ; Savage v. H. Ins. Co., 52 N. Y. 502; Hitchcock v. North-western Ins. Co., 26 id. 68.)</p>

(Reported below, 35 Hun, 103.) This action was brought to restrain defendant from obstructing an alleged highway, and to compel him to remove obstructions placed by him thereon, and to restore the same to the use of plaintiff and the public as it was before the alleged unlawful act of the defendants, and to restrain them from entering upon and using plaintiff’s lands as a public highway.

affirmed a judgment in favor of defendants, entered upon a verdict directed by the court. (Reported below, 18 J. & S. 2J5.) This was an action of ejectment brought by plaintiff, as one •of the heirs-at-law of Frederick Grbte, deceased, and a devisee under the will, to recover possession of an interest in certain ■premises in the city of Rew York.

This action was brought to compel the defendant to accept a payment of premium upon a policy of insurance issued by it upon the life of plaintiff and to reinstate the policy which it had declared to be forfeited. The facts, so far as material, are stated in the opinion. The time of payment of premiums was material, and the essence of the contract and a failure to pay on the day when due involved an absolute forfeiture. (Howell v. Knickerbocker Life Ins.

<p>Appeal by the defendant, Chiara Cignarale, from a conviction at the Court of General Sessions of the city and county of Mew York, on May 27, 1887, of the crime of murder in the first degree, under an indictment found against her and one Antonio D’Andrea, jointly charging them with the murder of one Antonio Cignarale on October 20, 1886. The appeal is brought directly to this court from the judgment of the Court of General Sessions, under chapter 493 of the act of 1887.</p> <p>Antonio Cignarale was the defendant’s husband. They were both natives of Italy. There they had been married in their very early youth, and had lived as man and wife for about thirteen years, when in March, 1886, they came to America and settled in the city of Mew York. The defendant at that time was about twenty-four years of age. They brought with them a daughter about eight years of age, the only child of the marriage. They were both extremely poor, and, besides being strangers to the language, customs and habits of the people they had come to live among, they had but little acquaintance among those who. form the Italian colony in Mew York. Among the number of those whom they had, however, known at their native home was the defendant, Antonio D’Andrea, a young man who, it seems, was second cousin to the appellant. Through him the husband procured work at .his trade as a mason on the first day of his arrival in New York. He soon abandoned this employment, claiming the work was too hard, and went to blacking boots, and, as the defendant testified, insisted upon her aiding him in that business, and when she declined to do this he then insisted that she should pick up rags in the streets, which she also refused to do, but told him she would wash or do other work suitable for a woman, The evidence justifies the conclusion that the husband was a lazy, shiftless person, unwilling to follow his trade for the support of his family. On reaching Mew York they took up their abode and lived in a very humble way on the top floor of No. 342 East One Hundred and Tenth street in that city, and they continued to live together there for two or three months until about July 1, 1886. The husband, according to the evidence, treated his wife in a very brutal manner, beating and kicking her, spitting in her face, and generally treating her with great indignity.</p> <p>The husband was jealous of D’Andrea and accused his wife with having improper relations with him. About July 1, 1886, the defendant left her husband and took rooms in Forsyth street, leaving her daughter with the deceased. The defendant testified that she was driven away by her husband, and that when she left him she intended to return to her friends in Italy. She had $100 when she left Italy, of which $30 remained. With this she says sfye intended to pay her passage home, and there obtain money from her friends to send for her child. When she left her husband she took with her a pistol and a box of cartridges, which she testifies her husband had bought with her money. On leaving her husband, she sought D’Andrea to assist her to obtain a passage ticket to Italy. But she abandoned her purpose, finding that she was very ill and • weak, and, at D’Andrea’s suggestion, took rooms in Forsyth street. D’Andrea came to board with ¡jher then, as did also two or more other Italians. The defendant remained in Forsyth street until a few days before the homicide, when she removed to One Hundred and Twenty-fifth street, D’Andrea and the other boarders going with her.</p> <p>The people sought on the trial to establish that improper relations existed between the defendant and D’Andrea. There was direct evidence to support this view given by one De Hora Marro and one Filomena Nardiele, a married woman who had left her husband to live with De Mora Marro, and who, as they testified, occupied rooms in Forsyth street, during a part of the time the defendant resided • there. They also testified that while residing in Forsyth street they heard the defendant threaten the life of her husband, and also heard D’Andrea promise the defendant to marry her if her husband was out of the way, and also heard him giving her instructions in the use of the pistol, using for that purpose a pistol of his own. The defendant denied that she lived in adultery with D’Andrea and testified that she had for several years been afflicted with a disease of the womb which rendered sexual intercourse on her part with any one impossible. In support of this statement the declarations of the husband were permitted to be given in evidence. The defendant also denied the statement of De Mora Marro and the woman Hardiele as to the alleged threats and the promise of D’Andrea to marry her, and as to the instructions in the use of a pistol.</p> <p>It was claimed by the defendant that their evidence was instigated by malice because she refused to permit them to stay in the house or to harbor therein. It may fairly be said that their evidence is in some respects open to suspicion from its intrinsic impossibility. But taking the evidence of all the witnesses together, the jury would have been justified in finding that adulterous relations existed between the defendant and D’Andrea.</p> <p>After the defendant left the house of her husband on One Hundred and Tenth street, he removed to One Hundred and Seventh street, and there continued to live to the time of his death. The daughter was taken to a convent. The defendant testified that the husband frequently came to her rooms in Forsyth street and tried to get in, but she locked the door and kept him out, and he would go away threatening her life.</p> <p>The narration thus far relates to facts preceding the day of the homicide, which occurred at about 12 o’clock on the morning of October 20, 1886.</p> <p>The theory of the prosecution was that the killing was a deliberate and premeditated assassination.</p> <p>On the other hand it was claimed by the defendant that the killing was in self-defense and therefore justifiable, or if not justifiable so as to completely exonerate the defendant . from liability, that there was an absence of the elements of deliberation and premeditation essential to the crime, of murder in the first degree. .</p> <p>It is conceded that the deceased was killed by a pistol sliot fired by the defendant on First avenue between One Hundred and Tenth and One Hundred and Eleventh streets in the City of New York. The only eye-witnesses of the occurrence other than the defendant, were Dominico Stabile, a carpenter, Vincenza Allistalo, a midwife, and one Pasquale Rosa, a grocer. These persons were strangers te Cignarale and his wife, and, so far as appears, were wholly disinterested witnesses. The witness Stabile testified in substance that at about 11.45 o’clock on the morning in question he was on the east side of First avenue, going from One Hundred and Tenth to One Hundred and Thirteenth street, and found the deceased on the samé side of the avenue, who was walking leisurely in the same direction, with his hands in his pockets and whistling. In passing he observed a woman following the deceased at a distance of about ten feet behind him. The woman was the defendant.</p> <p>Suddenly, when only a few feet in advance of the deceased, the witness was, startled by the report of a pistol, and turning, saw the woman with a smoking revolver in her hand and cocking it for another shot. He at once called out to the deceased, saying to him, “ Run away, or you will be shot.” The deceased thereupon turned partly around, and the woman at the same moment fired again. The deceased, wounded and frightened, exclaimed, “ Holy Virgin, Holy Virgin,” and commenced to run away from the woman, until at the corner of the avenue and One Hundred and Twelfth street, he fell and in a few moments died. The woman, after fifing the second shot, cocked the revolver again and. proceeded to the place where her husband was lying and, as the witness states, “ was going around the crowd with the revolver, and looking between the legs of the crowd with the revolver.” The defendant then passed up One Hundred and Twelfth street to Second avenue, and was arrested between One Hundred and Thirteenth and One Hundred and Fourteenth streets by an officer, having the cocked revolver in her pocket.</p> <p>The officer testified that when he first saw the defendant on Second avenue she had the revolver in her hand, and when she saw him she put it in her pocket, and that after arresting her he took her to the corner of One Hundred and Twelfth street, where the deceased was lying, and on seeing him she made a motion as if to snatch the revolver from the officer, who then had it in his hand.</p> <p>The witness Allistalo, who at the time was walking up the west side of the avenue and witnessed the occurrence, corroborated the statement of the witness Stabile in all material respects. She testified that the deceased was about ten feet in advance of the defendant, walking “ indifferently.” She said, “ I heard the first shot and I turned. I saw that the first shot went in a piece of paper and the piece of paper was burning; then I saw a woman with a revolver in her hand, and she fired the second shot, and I saw the second shot went into his back, and I saw exactly the smoke; then he said, ‘ Holy Virgin,5 and the man ran away.”</p> <p>The witness Sosa testified that he was standing outside of his -store and heard the report of a pistol. “ I turned around; I saw then the second shot going towards .Cignarale; the man ran away, the woman running after.” The pistol was a five-barreled revolver, and when examined, it was found that two of the barrels had been discharged and three of the barrels were still loaded.</p> <p>The autopsy disclosed that the ball entered the left side of the deceased, at about the' ninth rib, and passed diagonally through the heart, and lodged in the right lung. The defendant testified that in shooting her husband she acted in self-defense, and in corroboration of this theory gave evidence before referred to, tending to show that her husband frequently maltreated and abused her, sometimes kicking and striking her with .great violence; that she had been driven from her home; that he had thereafter dogged and pursued her with intent to kill and harm her, going frequently to her several places of abode on Forsyth street and One Hundred and Twenty-fifth street, and demanding admittance ; and that on the very morning of the day in question, he had appeared at her apartments on One Hundred Twenty-fifth street, and that, being denied admittance, and frightened away by the threat on her part to summon the landlord, he had vowed, as he left, that that should be her last day on earth,</p> <p>An Italian, an acquaintance of the parties, testified that on the same morning the deceased tried to borrow a revolver of the witness; and in reply to an inquiry what he wanted a revolver for, replied, “ I decided that to-day I will be killed, or I will kill .my prostitute wife.” Another witness, a butcher, with whom both parties traded, testified, that a few minutes before the shooting, the deceased came to his shop in One Hundred and Tenth street, and paid him ten cents, borrowed money, and on leaving said, “ I must see the end of my wife, and I want to spit in her face.”</p> <p>The defendant’s account of the transaction is as follows: “ I did my housework; then it was about between eleven and twelve o’clock; I went to buy things for the house.”</p> <p>Q. Where did you go ?</p> <p>A. I went to One Hundred and Tenth street, and for a block on One Hundred and Tenth street; I went on and was thinking; I was disturbed; then I saw him with a handkerchief in 1ns hand wdping his nose; as soon as he saw me he put his handkerchief into his pocket, and gave me two slaps ; I got scared, and I did not say a word to him ; and I looked around if I could see a policeman; I did .not say a word to him; I could not see any policeman; I went on to do my business; I walked along; whilst I was walking, I felt that he seized me by the arm ; he said, “ Cinara, Chiara;” and I turned around "to look into his face; he turned me around ; “ I say, you don’t want to go about your business; let me go, Antonio;” he said, “Ho, I want to reason with you ; I gave you two slaps, because you did not want this morning to open the doorhe says, “ What for didn’t you open the door? I am your husbandI said, “ Tes, you are my husband, I do not deny it; yon chased me out; to whom shall I go ? since I came from Italy here, where shall I go? If I would not have met good people, you would have left me in the street to do bad things; ” then he said, “Well, I was sure that you can do that;” then he said, “ By the bye, come, let us go near the river; let us take a walk together, I have to tell you somethingI said, ■“ I cannot go,” because he did not look to me very sincere ; because he was always looking in front and behind, always turning around; then I said, “ If you have anything to tell me, tell me it right here;” then lie said: “Well, I will tell you right here;” then lie said : “ De Mora Marro told me that you sleep with Antonio D’Andrea;” I said : “ De Mora Marro, because I refused to receive him into my house in Forsyth street, says that I live with Antonio D’Andrea; if I would have received him into the house he would not say that I lived with Antonia D’Andrea ;” I said : “ Well, God knows all about me ;” and then I said to him: “ Don’t you know that 1 cannot do those things ; for you I was not good, but for the others I am good enough,” saying it in a kind of reproach. “ Well, you know if I am not good for you, I am not good for another; that is the sense of it,” He said: “ Tell me the truth, if it is not tlié truth I will break De Mora Marro’s head then he said: “ I do not believe it; I was not willing to believe it, because I know that you are sick ;” and saying that, then he looked that way around the other side and he took out with his left hand the razor out of his pocket, he says : “ I want to kill you.” Seeing the razor I say : “ All, you betrayer.” I retreated one pace back and I took my revolver out; then when he saw the revolver, he says: “Well, there will be a time for you;” then he turned around and went in an opposite direction ; when I heard him say: “ That time will come for you,” I just fired to the ground; lie was four or five paces away from me, about five feet away from me, then; then when I fired he turned around, with the razor open, he says: “My Grod, happen what may,” and he jumped at me with his arm raised, just in a way to cut my head off; then having the revolver in my hand ; I fired the revolver ; I did not know where the revolver went; when the shot went.</p> <p>Q. At the time you fired that shot at your husband, did you believe you were in danger of being grievously hurt ?</p> <p>A. I thought that he will go to kill me.</p> <p>Q. And was that the reason that you fired ?</p> <p>A. Tes, sir.</p> <p>Q. To prevent yourself being cut with the razor ?</p> <p>A. Tes, sir.</p> <p>The defendant also testified that she took the pistol with her to protect herself against her husband. In her examination before the magistrate after her arrest, she.stated: “I am guilty of the charge. I shot my husband in order to defend myself, because he insulted me.”</p> <p>On examining the clothing of the deceased after his death a razor was found in his inside vest pocket, wrapped in an old piece of paper worn off at the ends and tied with a string.. To other razor was found, nor does it appear that the deceased had any other.</p> <p>The defendant’s counsel took some exceptions to the rulrulings of the court on the trial in respect to the admission and rejection of evidence, and also to the charge. They are not urged as ground of error on this appeal, and upon examination it is clear that none of them disclose any error committed on the trial to the prejudice of the defendant. The case was submitted to the jury by the learned recorder in a full, fair and impartial charge, who found the defendant guilty of murder in the first degree.</p> <p>Two reasons only are argued for the reversal of the judgment:</p> <p>First. That the verdicfis against the weight of evidence, and justice requires a new trial.</p> <p>Seooud. That the defendant could not legally be con-</p> <p>victed of any crime higher than murder in the second degree by reason of a prior plea to the same indictment of guilty of murder in the second degree, accepted by the court. The facts upon which this question arises are stated in the opinion.</p>

<p>A certificate of incorporation of a religious society organized under the act of 1813 (Chap. 60, Laws of 1813), recited that the meeting at which the organization was perfected was composed of the male members of the congregation. It was objected that the meeting was illegally organized as the female members, alike - with the male, were entitled to take.,part. Meld, that conceding this right, in the absence of evidence that the female members were excluded, no illegality was established; as if they voluntarily absented themselves, the male members had the right to constitute the meeting.</p> <p>The certificate recited that “ there being no minister, elders or deacons present at said meeting,” certain persons named were appointed chair man, assistant chairman and secretary. Meld, that there was no implication from the language used that there were any elders, and, in the absence of evidence that there were, the appointment was proper under the provision of said act declaring that if there be no elders then two members of the congregation shall preside.</p> <p>The certificate further recited that, “ by general consent, the society is to continue to be known as the Manhattanville Presbyterian Society.” Held, that this was a compliance with the provision of the statute requiring that in the certificate the name or title by which the society ‘' shall forever thereafter be called and known shall be particularly mentioned and described.”</p> <p>The said society in 1875 made a conveyance of certain real estate to the Presbytery of Hew York, a corporation authorized to take and hold real estate, in pursuance of an order of the court granted upon a petition stating, in substance, that there was a mortgage upon the premises for $1,500, which, with interest from 1872, was due and unpaid, then held by said Presbytery; that there were unpaid assessments on the land for improvements; that the society and congregation were unable to meet the current expenses of the church, and they had no means of paying the incumbrances except by a sale, that there was besides a floating debt of about $800, and that the church building required extensive repairs, which they were unable to make; also, that at a meeting of the congregation, regularly called, it was resolved to transfer the church property to said Presbytery, and the trustees were authorized to take all steps necessary for a legal transfer. The petition prayed- for and the order granted permission to convey by deed, subject to all existing incumbrances, the amount of which, together with the floating debt, should constitute the consideration. The conveyance was by full covenant deed made in terms subject to the said mortgage. Reid, that said conveyance was duly authorized and was adequate and sufficient to convey a good title.</p> <p>M. A. B. Church v. O. S. B. Church (46 N. Y. 131, and 73 id.. 82) distinguished.</p> <p>Also, held, that upon the conveyance the said mortgage became merged in the superior legal title and ceased to be an incumbrance.</p> <p>It seems that to prevent a merger in such a case the grantee must have some interest to keep the mortgage on foot, and there must be an intent that the merger should not take place.</p> <p>The Presbytery conveyed the said real estate to P., who contracted to sell the same to McR. The latter refused to complete the sale because of alleged defects in the title. In an action to compel specific performance, aside from the objections above stated, the purchaser claimed that there was a mortgage upon the premises executed by the religious society. The mortgage referred to" was payable on demand, and was given nearly twenty-six years before the contract of sale was made. After said conveyance all of the mortgagees named in the mortgage or their representatives, executed releases to the Presbytery, the latter when it sold and conveyed took a mortgage for part of the purchase-money. It was objected that the releases were ineffectual, as the Presbytery did not at the time hold any title. Reid, untenable; that the, fact that it vras a mortgagee was sufficient to uphold a release of a prior mortgage; also, that if the releases were otherwise ineffectual they furnished strong evidence, together with the great lapse of time and the fact that it was not mentioned in the petition for sale by the society, that the mortgage was no longer a subsisting incumbrance; also, that if it was not paid or otherwise discharged it was barred by the statute of limitations, and that, therefore, there were no defects shown sufficient to defeat the action.</p>

<p>Appeal from judgment of the General Term of the Superior Court of the city of Buffalo, entered upon an order made April 20,1886, which affirmed a judgment in favor of plaintiff, entered upon a verdict, and affirmed an order denying a motion for a new trial.</p> <p>This action was brought to recover the sum of $738.45 paid by the plaintiff to James C. Beecher, Esq., an attorney, upon a decree of the surrogate of Erie county in the matter of proving the last will of Budolph Zimmer, deceased, awarding said sum of $738.45 as costs to the defendant herein, as executrix of said will, and directing that said costs be paid out of the estate of said deceased, which decree was by the defendant duly assigned to said Beecher and by him assigned to the plaintiff upon his payment to Beecher of said sum of $738.45.</p> <p>Budolph Zimmer was the husband of the defendant; he died, leaving a will, in which he designated the defendant as sole executrix, and bequeathed to her the larger portion of his property; defendant offered said will for probate, whereupon some of the heirs appeared and opposed the probate upon the ground that the deceased was not of sound and disposing mind when he made it, and upon other grounds. Before presenting the will for probate defendant retained said Beecher as her attorney to conduct the proceedings, and for such purpose entered into an agreement with him, providing that Beecher was to be paid by her the sum of $500, in addition to any counsel fee and costs awarded in said Surrogate’s Court in the said proceedings to the proponent of said will, out of the estate of said deceased. The agreement also provided that “ if said proceeding is in any manner settled before the said will is admitted to probate, by withdrawing said proceeding or otherwise, or if said will is admitted without contest, then this agreement is to stand, and said sum is to be paid by said Bancy Zimmer the same as if said probate had been contested.”</p> <p>Pending the proceedings before the surrogate defendant transferred and assigned all her interest in the estate to plaintiff, she executing to him quit-claim deeds and an assignment by the terms of which she sold and assigned to plaintiff “all her right,.title and interest, and all claims of every name and nature which she has or are known to her or may exist in her favor against the estate of Budolph Zimmer * * * by way of legacies, dower, thirds, moieties or otherwise in any or all the property, real or personal, of which said Budolph Zimmer died seized. The assignment also contained a clause authorizing plaintiff “either to continue the proceeding for the probate of said will and to have the same admitted to probate,” or at his option to have a decree entered denying probate. The attorney, Mr. Beecher, was not present when the assignment was executed, and knew nothing of the transaction until after it was executed. Plaintiff was allowed to prove, under objection and exception, that before the delivery of the deeds and assignment, and before payment of the agreed consideration, it was stated by defendant’s counsel, in answer to a query from plaintiff, that the payment “took care of Mr. Beecher’s claim ” for costs. The $500 stipulated was paid Beecher out of the sum paid for the transfers. The proceedings before the surrogate were continued and resulted in'a decree refusing to admit the will to probate, but directing the costs of defendant, as executrix and proponent of the will, which were allowed at the said sum of $738.45, to be paid out of the estate. Defendant assigned the decree for costs to Mr. Beecher, who demanded payment thereof from plaintiff, who had been appointed and was then acting as temporary administrator; he paid the same, taking an assignment thereof.</p> <p>The agreements being perfect on their face, and, when read in the light of the surrounding circumstances, needing nothing to show that they were intended to express the whole contract, could not be varied by paroi proof. (Eighmie v. Taylor, 98 N. Y. 288, 294-297 ; 1 Abb. Ct. App. Dec. 461; Marsh v. McNair, 99 N. Y. 174.) A written agreement can no more be varied or contradicted in respect to its legal effect than it can in respect to its express terms. (Thompson v. Ketcham, 8 Johns. 190 ; Pattison v. Hull, 9 Cow. 747 ; La Farge v. Rickert, 5 Wend. 187; Renard v. Sampson, 2 Duer, 285; Bissicks v. Fayette, 21 Daily Reg., No. 65, 1882; Oreen v. Collins, 86 N. Y. 246, 254; Menagh v. Whitwell, 52 id. 146; Staats v. Bristow, 73 id. -264.) The agreement, if made, was void by the statute, being an agreement to pay the debt of another. (Seaman v. Whitehead, 78 N. Y. 306.) Beecher had no claim against the estate. (Seaman v. Whitehead, 78 N. Y. 306.) The payment to Beecher was a voluntary payment and cannot be recovered back. (Scholey v. Halvey, 72 N. Y. 578 ; Lott v. Sweezey, 29 Barb. 87, 91, 93 ; 4 Abb. Dig. 383 ; id. “Voluntary Payments,” 113-115.) A party cannot appear in one court and interpose his claims to recover, or to prevent a recovery, and, when defeated in that court and its judgment has passed against him, maintain an action in another court upon the claims thus sought to be established, ignoring the judgment standing against him unreversed. (Pray v. Hegeman, 98 N. Y. 351, 358; Inslee v. Hampton, 11 Hun, 156 ; Dunham v. Bosser, 77 N. Y. 76, 80 ; Stillwell v. Carpenter, 2 Abb. N. C. 238, 263, 272, 273 ; Griffin v. Long I. R. R. Co., 102 N. Y 449 ; Jay v. De Groot, 2 Hun, 205, 207 ; Castle v. Noyes, 4 Kern. 329, 331, 332; In re Dolan, 88 N. Y. 320.)</p> <p>The circumstances having been changed by the absence of Beecher, and the written contract having been thus rendered inapplicable, it was competent to show by paroi its conditions. (Chapin v. Dobson, 78 N. Y. 74.) A.s Beecher was defendant’s attorney and acted on her retainer alone throughout the will contest, as his agreement with defendant, the surrogate’s decree and his own testimony conclusively show, his claim for costs and counsel fees was a charge against her, both by reason of the contract between them and also as a matter of law. (Seaman v. Whitehead, 78 N. Y. 305 ; Code, §§ 2558, 2561 ; Bellows v. Sawles, 1 East. Rep. 268.) When 27ancy Zimmer undertook to collect the claim in her favor against the estate, as she did by the decree and assignment of it to Beecher, and when she succeeded she broke her contract, and the amount Dodge was thereby compelled to pay can be recovered in this action as damages for the breach of this contract, or as money had and received to her use. (Hisner v. Bulkly, 15 Wend. 321 ; Clinton v. Strong, 9 Johns. 370; Britton v. Frink, 3 How. Pr. 102 [Ct. App.]); Moulton v. Bennett, 18 Wend. 586 ; Myer v. Clark, 45 N. Y. 284 ; Schooley v, Halsey, 60 id. 489 ; 64 id. 521 ; 72 id. 578 ; Moses v. Macferline, 2 Burr. 1009.) The circumstances of this case fully warranted the finding that it was understood Haney was to pay Beecher’s full “ claim,” and paroi evidence was admissible to establish the agreement. (Chopin v. Dobson, 78 N. Y. 74; Hope v. Balin, 58 id. 380 ; Rozier v. N. Y & Phil. R. Co., 15 Week. Dig. 99 ; Wallis v. Little, 103 Eng. Com. L. 368; Lindley v. Laey, 112 id. 578 ; Eighmie v. Taylor, 98 N. Y. 288 ; Juilliard v. Chaffe, 92 id. 529-535.) One may show that the whole of a judgment that he has paid should be paid by another. (Lloyd v. Barr, 11 Pa. 41 ; Freeman on Judgments, § 158.) The surrogate’s decree is not res adjudicata. (Ferguson v. Crawford, 70 N. Y. 253 ; 1 Kent [12th ed.] 260, 261; Stephens on Ev. §§ 41, 42, 43, 44.) As Dodge was not a party to the proceedings, he could not confer jurisdiction on the court by consent, and so the decree does not bind him. (Wilmore v. Flock, 96 N. Y. 512 ; Fairchild v. Lynch, 99 id. 361, 368 ; Lorillard v. Clyde, id. 196.) Had Dodge been a party the decree would not be a bar here, because the point was not involved, considered or decided, and the decree of the surrogate does not conflict with the verdict in this action, but the verdict only settles rights under a collateral contract. (Marsh v. Marston, 101 N. Y. 401 ; Davis v. Crandall, id. 311 ; Johnson v. Meeker, 96 id. 99; Manston v. Olcott, 101 id. 152.)</p>

<p>Appeal from judgment of the General Term of the Supreme Court in the first judicial department, entered upon an order made March 10, 1886, which affirmed a judgment in favor of plaintiff, entered upon the report of a referee.</p> <p>This action was brought originally against Louis Monrose and John Mulville, of Mew York city, agents of the La Confiance Fire Insurance Company of France, to recover a sum of money alleged to have been placed in their hands to pay to plaintiff a loss covered by a policy of insurance issued by it.</p> <p>Plaintiff, a banker of Mobile, Alabama, loaned to the Mobile Furniture Manufacturing Company, a- corporation of that state, the sum of $12,000, taking the company’s note for its repayment, secured by collaterals of a mortgage upon the company’s property in its warehouses, and of a policy of insurance in the said insurance company, covering the whole or a portion of the mortgaged property. Subsequently a portion of the mortgaged property, insured by the said policy, was destroyed by fire, and the loss was adjusted under the same at the sum of $4,554.50. An attachment was levied upon these moneys in the hands of the agents, in an action brought in the Mew York Supreme Court by the defendants in the present action, as plaintiffs, upon a claim against the Mobile Furniture Manufacturing Company. The said agents of the insurance company paid to this plaintiff a part of the moneys in their hands, and reserved sufficient to protect themselves against the attachment. Upon this action being brought against the agents to recover the balance of moneys so retained by them, an order was made permitting them to deposit the moneys to the credit of the action, and subsisting the present defendants in their stead.</p> <p>It was error to allow the witness Monrose to state the contents of the policy, it being possible to produce the policy itself. (Kearney v. Mayor, etc., 92 N. Y. 620.) A waiver of a part of a claim against the principal is also a waiver of the claim to that extent against the surety. ( Wheelwright v. De Peyster, 4 Edw. Ch. 232; Lynch v. Reynolds, 16 Johns. 41; Weller v. Kelsey, 25 How. 384; Vose v. Railroad Co., 50 N. Y. 369 ; Hinckley v. Kreitz, 58 id. 583; Grow v. Garlock, 14 Abb. N. C. 487; 2 Hare & Wallace Lead. Cas. in Eq. 370 ; Underhill v. Palmer, 10 Daly, 478.) Under the law of Alabama, where one creditor has two funds to fall hack upon, and another has only one, the former must first exhaust the one on which the other has no-claim, especially where this is a primary fund, and the other a mere security. (Gordon & Stokes v. Bell, 50 Ala. 219 ; Nelson v. Dun, 15 id. 501; Chapman v. Hamilton, 19 id. 121; Relf v. Bibb, 43 id. 519 ; Henderson v. Huey, 45 id. 275 ; Perrime v. Insurance Co., 22 id. 575 : 2 Brick. Dig. 253, § 65 ; Ware v. Russell, 74 Ala. 178; Hunt v. Redd, 64 id. 85.)</p> <p>The delivery, with the intention and agreement to assign expressed in the mortgage,, constitutes a complete and valid assignment of the policy. (Runyon v. Mersereau, 11 Johns. 534 ; Green v. Insurance Co., 84 N. Y. 572.)</p>

The nature of the action and the material facts are stated in the opinion. As the court does not say in any finding that the parties misunderstood the papers which they signed, or acted under a mutual mistake, a reformation of the contract could not be had. (Nevens v. Dunlap, 33 N. Y. 676 ; Story’s Eq. Jur. 157 ; Lyman v. Utica Ins. Co., 17 Johns. 373; Mead v. Westchester Fire Ins. Co., 64 N. Y. 453; Kilmer v. Smith, 43 Supr.

The facts, so far as material; are stated in the opinion. It was absolutely indispensable to identify the person on whom the offense is committed . by apt descriptive words. (1 Bish. Cr. P. [3d ed.] §§ 97, 108, 109, 488, 677; Wh. Cr. P. & P. [8th ed.] §§ 90, 116; Wh. Cr. Ev. § 95 ; Heard Cr. Pl. §§ 55, 58; Code Crim. Pro. § 281; People v. Lake, Genl.

<p>P. died intestate, leaving E., plaintiff’s assignor and the defendants herein his heirs-at-law, and leaving certain real estate. E. was at the time insolvent and judgments to a large amount were outstanding against him; his interest in said real estate was sold on an execution against him and bid in by M. under an agreement between him and E. that the latter might, at any time thereafter, redeem by paying the sum bid with interest. Differences having arisen between E. and the other heirs, an agreement for a settlement was made in February, 1888, by which, among other things, it was agreed that E. and M. should take up and pay the judgments against E. Immediately after this E. confessed a judgment to defendant G. under an agreement that it was to be used only as a lien, and was not to be enforced in any event until Hay thereafter. G., however, in April, by virtue of his judgment, redeemed the interest of E. by paying the sheriff the amount of H.’s bid, and received a conveyance from the sheriff. In an action for an accounting between the parties and partition, held, that G., by his redemption, did not obtain absolute title to E’s interest, but held it simply in trust for him or his assigns, subject to the payment of the amount paid to redeem and of G.’s judgment, with interest on both; and this, although at the time of the redemption the twelve months allowed for E., as the judgment-debtor, to redeem had expired; that he still had an interest and also a right to redeem under his agreement with H., which was valid; also, that the agreement between E. and G., in pursuance of which the judgment was confessed, was valid.</p> <p>Defendant T., under the agreement between the parties, received powers of attorney to manage and control the property; after these had been revoked on the part of E., hut while T., was still, to some extent, in possession and was receiving the rents, issues and profits, he, with full knowledge of the circumstances above stated, purchased a judgment against E., the amount whereof was about $6,600, for $3,000. T. had promised E. that he would protect the latter’s interest in the estate. 'Held, that T. was not entitled to be paid the full amount of the judgment, but simply the amount paid by him with interest; that notwithstanding the revocation of the power of attorney, his relations with E. continued to be fiduciary in their nature.</p> <p>At the time of the decease of P. there was a mortgage upon the premises, which T. purchased for $10,000 and took an assignment to himself, the principal and interest of which amounted to over $16,000. It did not appear that at the time of the purchase there was any intention on the part of the mortgagee to foreclose, or that there was any immediate and pressing necessity to take care of the mortgage. Held, that T. was not entitled to hold the mortgage for its face, but only for the amount paid therefor, with interest, and he had simply the right to require of his co-tenants to contribute their share of this amount;, also, that the failure of E., after knowledge of the purchase and of T.’s claim to hold the mortgage for the full amount, to contribute or oSer to contribute his share of the purchase-price, did not, under the circumstances, entitle T. to enforce the mortgage for its full amount.</p>

The nature of the action and the material facts are stated in the opinion. Chapter 443, Laws of 1881, chapters 348 and 363, Laws of 1882, and chapter 114, Laws of 1883, are statutes in pari materia, and should be construed as one.

<p>The equity of creditors to set aside a transfer by thcMebtor on the ground that it was made to hinder delay or defraud them is not the subject of levy under an attachment; the question of the bonafides of the transfer can only be raised by a judgment-creditor</p> <p>Where, therefore, a debt claimed to be due to the debtor is attached by a creditor and it is claimed by the person owing the debt that it was assigned before service of the attachment, the question simply is as to whether there was a transfer valid in law; it may not be assailed begiuse of bad faith.</p> <p>While the mere delivery to a third person of a check or draft drawn by a creditor upon his debtor does not affect a legal transfer of the debt, where it appears that the intent was to make such a transfer, it is the duty of the court to carry out the intent.</p> <p>A. & Co. and the defendant entered into a contract for the sale, by the former to the latter, of certain machinery to be delivered on board of cars and paid for on receipt. After the goods had been manufactured and shipped and a portion had reached their destination, A. & Co., who were indebted to the F. Co. in an amount exceeding the contract liability, drew drafts in favor of that company upon defendant for the amount thereof and transmitted the same to the F. Co., writing the company that the drafts were for the amount due from defendant; that they had charged the amount to it in general account, and requesting it to credit the same in their account and to collect, adding. “ Please have no error in receiving and treating the drafts as belonging to you.” The F. Ca replied, acknowledging receipt and stating that it had sent the drafts forward for collection; it entered tli cm in its bill-book as drafts due to it from defendant. A. & Co. advised defendant that they had assigned their account against him to the F. Co. and requested him to honor drafts when presented. The F. Co. also advised defendant that it had credited the drafts on A.’s account. Plaintiff thereafter, in an action against A. & Co., attached the debt. Held,, the correspondence showed that the drafts were sent forward as representing the indebtedness of defendant to A. & Co., and that their delivery and acceptance was intended to carry with them the debt, and so constituted an equitable assignment thereof, for which the agreement to credit constituted a valuable consideration.</p> <p>Also, held, that the action of the parties in permitting A & Co to allow the amount of a counter-claim made by defendant after the alleged transfer, but before the attempted levy, did not affect the validity of the transfer- also, that it was immaterial whether the F. Co, actually credited the amount of the drafts in its books of account.</p>

(Reported below, 20 J. & S. 41.) This action was brought upon an alleged covenant to pay an annual royalty of one cent a pound on 250,000 pounds of tobacco, and to restrain the defendants from using the words “ Sweet Caporal ” on cigarettes.

(Reported below, 46 Hun, 88.) This action was brought to recover a balance alleged to be due upon a stock transaction. The complaint alleged, in substance, that the defendants were copartners and' brokers, and, as such, had a transaction with George W. Wilson, upon which they became indebted to him in-the sum of $600. The complaint' set out plaintiff’s title to the cause in action, derived as follows: An assignment by Wilson to Davis & Go., and from them to herself.

<p>An action against a stockholder in a limited liability company organized under the “ Business Corporations Act ” of 1875 (Chap. 611, Laws of 1875), to recover a debt of the corporation under the provision of the act (§ 37), making such a stockholder liable for the debts of the company to an amount equal to his stock until the whole amount of capital stock has. been paid in and certificate filed, may be maintained after a suit has been commenced against the corporation but before judgment against it.</p> <p>The remedy of the creditor suing, after recovery of judgment against the stockholder, is simply suspended until after judgment and execution against the corporation and return thereof unsatisfied.</p>

Appeal by John W. Wilson et al., from an order of the General Term of the Supreme Court in the first judicial department, made January 23, 1888, which affirmed an order of Special Term, the substance of which is hereinafter stated. In June, 1885, the said appellants began an action in the Supreme Court in the first district against the petitioner Dawson, to recover damages for breach of contract, and obtained an attachment therein on the ground of defendant’s non-residence.

(Reported below, 45 Hun, 126.) The facts, so far as material, are stated in the opinion. The Hew York, Lake Erie and Western Railroad Company had such a prior vested right in and to the lands under the lease and grant from Francis Gr.

(Reported below, 44 Hun, 206.) The plaintiff corporation was organized June 9,1886, for the purpose of constructing a railroad, commencing in the village of Canisteo, Steuben county, and terminating at a point on the line of the Lackawanna and Pittsburgh Railroad Company, in the town of Burns, Alleghany county. It had surveyed and located the line or route of its proposed road, and had made and duly filed a map of the same.

<p>The provisions of the act of 1822 (§ 3, chap. 137, Laws of 1822), in reference to the drawing of jurors in the county of Seneca, have not been repealed, and the provisions, therefore, of the Codes of Criminal and Civil Procedure (Code of Orim. Pro. § 358 ; Code of Civil Pro. §§ 1027, 1062) do not apply to that county. (Code of Civil Pro. § 3347, subd. 7.)</p> <p>Upon the trial of an indictment for murder in the first degree, it appeared that the homicide was committed while the defendant was attempting to escape from jail where he was confined upon a charge of felony. Defendant objected to the admission in evidence of the commitments, under which he was held, on the ground that they “did not comply with the Code of Criminal Procedure and the justice had no right to issue them. ” It had been proved that the justice issuing them was an acting justice of the peace. One of the commitments recited that defendant was held on a charge of “ burglary in the third degree; ” another that he was held upon a charge of “ grand larceny in the first degree.” Meld, these statements were a substantial compliance with the provision of said Code (§ 214), requir ing the nature of the crime to be briefly stated in a commitment; that a reference to the statutory definition of the crime showed, with sufficient clearness and precision for the purpose in view, the nature of the crime.</p> <p>Also, held, that it was not incumbent on the part of the People, in order to make out a prima facie case, that defendant was lawfully restrained of his liberty upon a charge of felony, to put in evidence the proceedings upon the examination of defendant; that it was sufficient to show that he was arrested upon a warrant issued by competent authority, was examined before á duly authorized magistrate upon the charge therein contained, was held to answer, and that commitment was made and delivered to the sheriff; that jurisdiction in the magistrate over the subject-matter and the person having been established, he had authority to make the commitment, and the recitals therein contained are presumptive evidence of the facts stated.</p> <p>Aside from proof of jurisdictional facts, the orders and precepts of courts of limited jurisdiction have the same force and are entitled to the same presumption as apply to those of courts of more extensive authority.</p> <p>Also, held, that as the evidence showed that the death charged was caused by the act of defendant while he was attempting to escape from jail where he was confined under said commitments, it legally tended to establish that the death occurred while defendant was attempting to commit a felony (Penal Code, §§ 685, 686); and so that he was guilty of the crime of murder in the first degree. (Penal Code, § 183, subd. 3.)</p> <p>Subsequent to the trial, a motion was made on behalf of defendant upon affidavits to set aside the verdict upon the allegation of irregularities on the part of the jury during the trial, i. e., that the jury were allowed to view the scene of the crime without having first administered to the officers attending them the oath prescribed by the Code of Criminal Procedure (§ 412), and that members of the jury, while engaged in making such view, received information from the officers as to the location of the cells occupied by the prisoners attempting to escape, etc. All the facts were known to the prisoner’s counsel and were not brought to the attention of the court or objected to, and said counsel assented that the jury should view the scene of the crime. The motion was denied. Beld, no error; that the court had authority to permit the jury to take the view; that the omission of the oath to the officers was an irregularity merely, which could be waived by defendant, and was waived by the consent of his counsel that the view should be taken, and by his omission to object or to call attention of the court to the omission of the oath.</p> <p>Such a motion is addressed to the sound discretion of the trial court (Code of Crim. Pro. § 465), and the exercise of that discretion is not reviewable here, unless it appears that it has been abused to the prejudice of defendant.</p>

This action was brought to recover damages for injuries alleged to have been caused by defendant’s negligence. The material facts are stated in the opinion. It is the duty of a municipal corporation having the control of its streets to keep them in a reasonably safe condition for whomever may be lawfully upon them. (Niven v. Rochester, 76 N. Y. 619; Ring v. Cohoes, 77 id. 83; Lavery v. Hannigan, 52 Supr.

The nature of the action and the material facts are stated in the opinion. A denial in a verified answer of a material allegation upon information and belief is authorized by the Code. (Code Civ. Pro. §§ 500, 524, note, see note to Throop’s Code, § 524; Edward v. Tent, 8 How. Pr. 28 Lloyds v. Burns, 38 Supr. Ct. 424; Pratt Mfg. Co. v. J. I. C. Co., 33 Hun, 144; Stent v. Continental Nat. Bk., 5 Abb.

<p>Appeal from judgments of the General Term of the Supreme Court, in the second judicial department, entered upon orders made September 22, 1885, which modified and affirmed, as modified, judgments in favor of plaintiffs entered upon decisions of the court on trial at Special Term.</p> <p>These actions were originally brought by John Wood, the present plaintiff’s testator, to foreclose certain mortgages, which with the accompanying bonds were assigned to him by Frances L. Ludlow, testatrix of the defendant, William H. Ludlow. The material facts are stated in the opinion.</p> <p>Agreements will be taken more strictly against the promisor, and as to this arrangement plaintiff’s testator was promisor. (Marvin v. Stone, 2 Cow. 781; White v. Hoyt, 73 N. Y. 515; Paine v. Jones, 75 id. 593.) There was an ample consideration for the accord. (Boyd v. Hitchcock, 20 Johns. 76; Keeler v. Salisbury, 33 N. Y. 648.) The bond was received in substitution for the covenants of guaranty. No other inference is compatible with the manifest object and intent of the party. (Frisbee v. Larned, 21 Wend. 450, 453.) The defendant,.. Ludlow’s testatrix, was discharged by the extension of the time of payment of the bond and mortgage assigned if a valid and binding extension was given. (Pitman Pr. and S. 167.) If no binding agreement to extend time was made,. Mrs. Ludlow was discharged by the loches of plaintiffs’ testator in giving time without a performance of the condition, upon which the consents therefor were granted. (Toles v. Adee, 91 N. Y. 562; MoMurray v. Noyes, 72 id. 523.) Assuming that the executor of Mrs. Ludlow is a proper party, the judgment can merely establish the extent of his liability and order payment thereof in due course of administration(Glacius v. Fogal, 88 N. Y. 434.) The guaranties contained in the assignment of the mortgage, and in Mrs. Ludlow’sbond, created distinct and different liabilities. (McMurray v. Noyes, 72 N. Y. 523; Craig v. Parkis, 50 id. 181.) The judgment should be reversed and the complaint dismissed as-to Mrs. Ludlow’s executor, without prejudice, etc. (Code Civ. Pro. § 1672; Rhodes v. Evans, 88 N. Y. 168.)</p> <p>When the amount of the deficiency is once determined, the guaranty is a guaranty of payment and is absolute. The guarantor is then liable to pay upon default of the principal, without proof of demand or notice, and without exhausting the remedy against the principal debtor before proceeding against the guarantor. (Allen v. Rightmere, 20 John. 365; Union Bank v. Coster, 3 N. Y. 203; Winchell v. Doty, 15 Hun, 1; Eneas v. Hoops, 42 Supr. Ct. [J. & S.] 517; Gilbert v. Wyman, 1 N. Y. 550; Rushmore v. Miller, 4 Edw. 84; Mann v. Eckford, 15 Wend. 502; Clark v. Burdett, 2 Hall, 197; Kemble v. Wallace, 10 Wend. 374; Morris v. Wasdworth, 11 id. 100.) This contract is to be interpreted like any other commercial contract. (Crist v. Burlingame, 62 Barb. 351.) The covenant makes Mrs. Ludlow a guarantor of the bond in suit, and her separate estate liable for any deficiency that may arise on the sale. (Code Civ. Pro. § 1627.) Having guaranteed payment by a clause in her assignment of the bond to plaintiff, a personal judgment against her for any deficiency is proper. (Ofpeer v. Burchell, 19 Albany L. J. 57.) And that, too, whether the guaranty is absolute or conditional. ( Vanderbilt v. Schreyer, 91 N. Y. 392.)</p>

(Reported below, 46 Hun, 651.) Prior to the year 1878 the city of Rochester constructed a system of water-works, by which it used certain water privileges which were appurtenant to the lands of one Hiram Smith. In that year he, with other owners of premises similarly affected, commenced an action to restrain the city. He was unsuccessful until, by the judgment of this court, his right to maintain the action was established.

(Reported below, 21 J. & S. 190.) This action was brought to recover damages for the nondelivery in Hew York of sixty-three slabs of tin, part of a shipment of 1,702 slabs, made at Singapore, India, September 7, 1882, under a bill of lading stipulating that the tin should be transported from Singapore to London, per the steamer “ Thibet,” and thence by a steamer of the Monarch line to Hew York.

This action was brought, under section 1762 of the Code of Civil Procedure, for a separation. ■ The answer admitted that defendant left her husband and ceased to live with him in 1882, but alleged it was with his consent. The answer also alleged cruel and inhuman treatment on the part of the plaintiff, and asked for a decree of separation with an allowance for alimony. The material facts are stated in the opinion.

Appeal by the defendant, Charles E. Kearney, from a judgment of the General Term of the Supreme Court, in the Fourth Department, entered January 26, 1888, affirming a judgment of the Court of Sessions of Onondaga County, Hon. A. J. Uorthrup, presiding, entered upon a conviction, July 13, 1887, of defendant of seduction under promise of marriage.

The plaintiffs, judgment-creditors, with executions returned unsatisfied, of J. Foreman Wilkinson and Alfred Wilkinson, brokers in Syracuse, doing business under the firm name of Wilkinson & Co., commenced this action to set aside, as made with intent to hinder, delay and defraud their creditors, a deed of certain real estate, dated May 5,1884, executed by J. Foreman and Alfred Wilkinson to their brother John Wilkinson; a mortgage upon the same real estate, dated November…

Appf.at, from an order of the General Term of the Supreme Court, in the second judicial department, made February 13, 1888, which affirmed an order of the surrogate of Orange county, denying an application to vacate an order theretofore made by him under the collateral inheritance tax law of 1885. (Reported below, 47 Hun, 394.) The facts are stated in the opinion. By the amendments of 1887 the petitioner was exempted from any tax under the collateral inheritance act of 1885.

(Reported1 below, 21 J. & S. 357.) The nature of the action and the material facts are stated in the opinion. The defendants having jurisdiction of the persons and property assessed, are not liable in damages for erroneous action, or illegal procedure, after jurisdiction acquired.

The material facts are stated in the opinion. The proceeding was properly commenced in the name of the supervisor. (Code of Civil Pro. § 1926; Bridges v. Board of Supervisors, 92 N. Y. 570.) The town is now liable in all cases where formerly a commissioner was liable, and formerly commissioners were liable if they did not keep watch of bridges and keep them in repair.

Cross-appeals from judgment of the General Term of the Supreme Court in the fourth judicial department in favor of plaintiff, entered upon an order made January 13,1885, which denied defendant’s motion for a new trial, reversed an order granting plaintiff’s motion for a new trial, and directed judgment on a verdict. This action was brought to recover damages for the alleged unlawful conversion of certain stock. The following are the material facts.

) The nature of the proceeding and the facts are sufficiently stated in the opinion. The act-under which the taxes herein sought to be collected were imposed upon the railroad corporation is constitutional. (People v. Home Ins.

This action was brought to restrain defendants from using plaintiff’s dock. The plaintiff resides at Sands Point, on Long Island Sound, having a dock extending below low-water mark and in front of his property, built under a grant made by the commissioners of the land office of this state to one White, the plaintiff’s grantor, in these words: ‘ The People of the State of New York by the Grace of God, Free mid Independent.

This action was brought by plaintiffs to recover $3,000 and interest upon a policy of insurance issued by the defendant September 24, 1863, upon the life of John Lindemann. The facts are sufficiently stated in the opinion. The children of John Lindemann had a vested right in the policy sm'rendered. (Fitch v. Am. Popular L. Ins. Co., 59 N. Y. 557; Eddington v. Mutual L. Ins. Co., 67 id. 185; Ferguson v. Mass. Mut. L. Ins.

<p>Plaintiff owned and occupied certain premises, across which ran a stream fed by springs of pure water. He collected the water of said stream into an artificial basin and used it for domestic purposes and the propagation of fish, and in winter procured from it a supply of ice. Defendant thereafter constructed sewers, through which, not only surface-water, but the sewage from houses and water closets was discharged into said stream above plaintiff’s land, rendering its water unfit for use and covering its banks with filthy and unwholesome sediment. Held, that these acts constituted a nuisance, to restrain which, as well as to recover his personal damages, plaintiff could maintain an action.</p> <p>Also, held, that in the absence of proof that plaintiff encouraged the adoption by the defendant of its system of sewerage, or by any act or word induced it to so direct the sewers that the flow from them should reach his premises, plaintiff was not estopped by acquiescence.</p> <p>One entitled to the use of air or water in its natural condition, and who is injured by its pollution, may maintain an action against the party causing it, whether an individual or a corporation.</p>

<p>Appeal from judgment of the General Term of the Supreme Court in the second judicial department, entered upon an order made December 27, 1886, which reversed a decree of the surrogate of ¡Rockland county, refusing probate to an instrument purporting to be the last will and testament of1 Edwin B. Hunt, deceased, and directed the surrogate to admit said will to probate. The order of reversal stated that it was made “ on questions of fact as well as questions of- law.” (Reported below, 42 Hun, 434.)</p> <p>The material facts are stated in the opinion.</p> <p>The General Term having reversed the decree of the Surrogate’s Court on the facts as well as the law, the only order it could properly make was to award a jury trial of the material questions of fact arising upon the issues between the parties. (Code of Civ. Pro. § 2588; Sutton v. Ray, 72 N. Y. 482, 484; Marvin v. Marvin, 3 Abb. Ct. App. Dec. 195.) The proof, if any, by the attestation clause is narrowed down to only two of the requirements of the statutes, viz., acknowledgment of the signature ; declaration of the will. If it proves the one, it cannot prove the other. They are separate and distinct requirements, and are each provided for and distinguished separately by the statute. (Lewis v. Lewis, 11 N. Y. 220; Mitchell v. Mitchell, 16 Hun, 97; affirmed, 77 N. Y. 596; Wooley v. Wooley, 95 id. 231.) A party seeking to establish a will must prove that all the requirements of the statute have been substantially complied with. (Lewis v. Lewis, 11 N. Y. 220-228; Mitchell v. Mitchell, 16 Hun, 97; affirmed, 77 N. Y. 596; Wooley v. Wooley, 95 id. 231.)</p> <p>The object of the statutory requirement of certain formalities in the execution of wills, is to prevent fraudulent testamentary dispositions of property as well as deception in the execution of such instruments. (Lane v. Lane, 95 N. Y. 498; Trustees of Auburn Seminary v. Calhoun, 25 id. 422.) The circumstances and appearance of the paper itself (the genuineness of the signatures being conceded), éstablish a constructive publication and request to the witnesses to sign by the testator. (Lane v. Lane, 95 N. Y. 494; In re Kellum, 52 id. 517; Coffin v. Coffin, 23 id. 9; Peck v. Cary, 27 id. 9; Smith v. Smith, 40 Hun. 318; Hutchings v. Cochrane, 2 Brad. 295; Orser v. Orser, 24 N. Y. 51; Rugg v. Rugg, 83 id. 592.) There was sufficient proof of the acknowledgment of the will by the testator. (Coffin v. Coffin, 23 N. Y. 9; In re Will of Higgins, 94 id. 554, 557; Lewis v. Lewis, 11 id. 220; Woolley v. Woolley, 95 id. 231.) A will may be admitted to probate by proving the signatures to the will and the attestation clause when corroborated by circumstances surrounding the execution of the instrument, even against the positive evidence of the attesting witnesses to the • contrary. (Code of Civ. Pro. § 2620 ; In re Will of Cottrell, 95 N. Y. 329; In re Lapham, 37 Hun, 15,16; Lane v. Lane, 95 N. Y. 494; Hutchings v. Cochrane, 2 Brad. 295; Baskin v. Baskin, 36 N. Y. 416; In re Pillips, 98 id. 267.) The General Term was right, on reversing the decree of the Surrogate’s Court, to order the will admitted to probate. (Code, §§ 2586, 2587; Dack v. Dack, 84 N. Y. 663; Thompson v. Stevens, 62 id. 634.)</p>

Appeal by defendant Arthur J. McQuade from a judgment of the General Term of the Supreme Court in the First Department, of May 18, 1888, affirming a judgment of the Court of General Sessions of the Peace for the City and County of New York, Hon. Fbedebiok Smyth, Recorder, presiding, entered upon a conviction of defendant of bribery.

{Mem. of decision below, 47 Hun, 491.) The facts are sufficiently stated in the opinion. An arrest, to be oppressive, must not only be unlawful, but malicious. (Penal Code, § 556.) By no construction of the evidence can the court find the defendant was committing an assault in the third degree.

(Reported below, 36 Hun, 6.) This was an action of ejectment brought to recover possession of certain real estate situate in Cayuga county, of which J ohn H. Southwick died seized.

The nature of the action and the material facts are stated in the opinion. The pretended lease from the plaintiff to the salt company was delivered conditionally as a mere escrow; the condition .of its delivery to the company was never complied with; it was never delivered to it by plaintiff’s consent, and it, therefore, failed to operate as a conveyance of the plaintiff’s title. (Smith on Cont. * 11; Hawksland v. Gatchel, Cro.

Cornell, as assignee under an assignment for the benefit of creditors, executed March 17,1876. (Reported below, 45 Hun, 552.) On the petition of creditors of the assignors an order was granted December 6,1880, removing said assignee and appointing another in his place. Prior to such order Cornell had made application for a final accounting. The matter was referred to a referee, and on the coming in of his report, the Special Term order was made.

<p>Appeal from judgment of the General Term of the Supreme Court in the first judicial department, entered upon an order made January 23, 1888, which reversed a judgment in favor of defendant, entered upon an order sustaining a demurrer to plaintiffs’ complaint and which overruled said demurrer. (Reported below, 47 Hun, 241.)</p> <p>The substance of the complaint is set forth in the opinion.</p> <p>The executions were issued illegally, and in contravention of the statute. (Code of Civ. Pro., chap. 13, §§ 1365, 1369.) The provisions of chapter 13 of the Code of Civil Procedure apply to these executions issued out of the Marine Court on the 6th day of January, 1879. (Laws of 1877, chap. 417, § 1, subd. 49, § 5.) The Marine Court is a court of record. (Code of Civ. Pro. § 2, subd. 15; Laws of 1872, chap. 629, § 1.) The executions, having been issued against the prohibition of the statute (§§ 1365-1369), were void. (Fischer v. Langbein, 103 N. Y. 84.) The Marine Court had no power to award execution, and acquired no jurisdiction to issue any in this particular case, without first filing transcript and docketing its judgment in the county clerk’s office. (Wright v. Nostrand, 94 N. Y. 31.) A judgment docketed is notice to everybody. (Freeman on Executions, § 24.) A plain disregard of a statutory inhibition renders process void. (Place v. Riley, 98 N. Y. 1; Reid v. Stegman, 99 id. 647; Carpenter v. Willet, 1 Abb. Ct. App. Dec. 312; Cornell v. Barnes, 7 Hill, 35; Earl v. Camp, 16 Wend. 567.) The executions being void, no cause of action can arise thereon against the officer in favor of the plaintiffs. (Crocker on Sheriffs, § 284; Freeman on Executions, §§ 14, 24; Bergman v. Noble, 19 Abb. N. C. 67; Newbury v. Munshower, 29 Ohio St. 617; 23 Am. Rep. 769; Beach v. Botsford, 1 Doug. [Mich.] 204; Reid v. Stegman, 99 N. Y. 647; Place v. Riley, 98 id. 1; Carpenter v. Willet, 1 Abb. Ct. App. Dec. 312 ; Cornell v. Barnes, 7 Hill, 35 , Prime v. Anderson, 29 Hun, 644.) - There is no estoppel that can be invoked against the officer. (Carpenter v. Willet, 1 Abb. Ct. App. Dec. 312; Earl v. Camp, 16 Wend. 561.) An execution to issue properly to a sheriff must be preceded by the filing of a transcript and the docketing of the judgment in the county clerk’s office. If the execution went to a marshal, it must be before transcript filed, etc., and the creditor must make his election previous to issuing the process. (Oberwarth v. McLean, 52 How. Pr. 491.)</p> <p>The sufficiency of the executions is to be determined by the Marine Court act of 1875 (Laws of 1875, chap. 479, §§ 52, 53), and not by sections 1365 and 1369 of the Code of Civil Procedure. (Laws of 1872, chap. 629, §§ 1,2, 8; Oberwarth v. McLean, 52 How. Pr. 491; S. C., 7 Daly, 70; Palmer v. Clark, 4 Abb. N. C. 25.) The claim that the enactment of sections 1365 and 1369 operated as an implied repeal of section 53 of the Marine Court act of 1875, is opposed to well settled principles of statutory construction. (People v. Mallory, 2 T. & C. 76; Mark v. State, 97 N. Y. 572.) A special statute providing for a particular case, or applicable to a particular locality, is not repealed by a statute general in its terms and application, unless the intention of the legislature to alter the terms of the special law is manifest, although the terms of the general act would, if taken strictly, and but for the special law, include the cases provided for by it. (Vandenburgh v. Greenbush, 66 N. Y. 1; In re Central Park, 50 id. 493; Bartels v. Cunningham, 59 How. Pr. 129; Ross v. Wigg, 36 Hun, 107; McKenna v. Edmunston, 91 N. Y. 231; Roof v. Meyer, 8 Civ. Pro. Rep. 60.) The defendant having treated the execution as valid process and levied upon property, cannot avail of the alleged irregularity to escape liability for a false return of no property. (Freeman on Executions, §§ 24,25; Stephens v. Browning, 1 Code Rep. 123; Stoutenburgh v. Vanderburgh, 7 How. Pr. 229; De Agreda v. Mantel, 1 Abb. Pr. 130, 135; Walden v. Davison, 15 Wend. 575, 578; Hinman v. Brees, 13 Johns. 529; Bank v. Hallett, 8 Cow. 192; Parmalee v. Hitchcock, 12 Wend. 96; Ames v. Webbers, 8 id. 545; Grosvenor v. Hunt, 11 How. Pr. 355; Bank v. Spencer, 18 N. Y. 150; Roth v. Schloss, 6 Barb. 308; Bacon v. Cropsey, 7 N. Y. 195; Abels v. Westervelt, 24 How. 284; Blivin v. Bleakley, 23 How. 124; Douglas v. Haberstro [Ct. of App., April, 1882] 2 Civ. Pro. Rep. 186, 188.) Under the merely mandatory provisions of the previous Code and of the Revised Statutes, it was held that an execution issued under these circumstances was voidable, but not void, and that the sheriff in an action for an escape could not avail of the irregularity. (N. Y. Guaranty Co. v. Rogers, 71 N. Y. 377; Hall v. Ayer, 19 How. Pr. 91; Hutchinson v. Brand, 6 id. 73; Hinman v. Brees, 13 Johns. 529; Renick v. Orser, 4 Bosw. 384; Marks v. Townsend, 97 N. Y. 590, 601.) The defendant is estopped from questioning the regularity of process which he has treated as valid, and under which he has levied. (James v. Gurley, 48 N. Y. 163, 167; Bensel v. Lynch, 44 id. 162.)</p>

(Reported below, 44 Hun, 215.) The nature of the proceedings, and the facts so far as 'material, are stated in the opinion.

(Reported below, 19 J. & S. 482.) The nature of the action and the material facts are stated in the opinion. A prior possession, even without any proof of a paper title, will prevail against an intruder. Title in a private person supposes a grant from the state or from the sovereign power. The presumptions founded in possession alone are, therefore, presumptions in favor of such a grant.

This action was brought to compel an accounting by the defendant for certain money and securities of the plaintiff had and appropriated by him, and to have the amount found due her declared a lien upon certain land in Goshen in this state.

Appeal by defendants, separately, from judgmemt of the General Term of the Supreme Court in the fourth judicial department, made October Y, 1884, which affirmed a judgment, in favor of plaintiff, entered upon the report of a referee. This action was brought to set aside two deeds, one from William P. Ballou to defendant Charlotte Ballou, dated June-Y, 1851, and one purporting to be from William P. Ballou and' plaintiff, his wife, to defendant Theodore P. Ballou.

(Reported below, 21 J. & S. 111.) The averments of the complaint, so far as material to the questions discussed, are as follows: “ III.

This action was brought to restrain defendants from interfering with plaintiff’s alleged priority of right to the waters of a stream, and to recover damages for interference with said water rights. The material facts are stated in the opinion.

(Reported below, 42 Hun, 186.) The substance of the indictment and the material facts are ¡stated in the opinion. The law should not establish social relations. The law under which defendant was indicted promotes' amalgamation, tends to the destruction of both races, and is void. The legislature is not omnipotent.

<p>In a complaint in an action for partition, brought before the going into effect of the provisions of the Code of Civil Procedure in reference to such actions, it was not necessary to aver that the parties or those from whom they derived title were ever in possession. An averment of ownership in fee is all that was required, and a constructive possession, such as the law draws to the title, was sufficient for the maintenance of the action.</p> <p>In such an action the complaint alleged title in plaintiff as tenant in common with defendants and as one of the heirs of a common ancestor. H., one of the defendants, set up in his answer as a counter-claim, a paroi agreement on the part of plaintiff to sell and convey to him her interest; that, relying upon said agreement, he went into possession and had made valuable improvements and asked for specific performance thereof. These averments were put in issue by a reply. On the trial H. moved to dismiss the complaint on the ground that, under the pleadings, questions of title were involved which could not be tried in the action. Held, that the motion was properly denied as there was no denial of plaintiff’s title as set forth in the complaint; that the allegations in the answer formed an issue of equitable cognizance to' be tried by the court, and it was properly tried in the action.</p> <p>There was no averment in the said answer of possession adverse to plaintiff or that II. had ousted her, and there was no proof of such possession or ouster. The proof tended to show that H. went into possession either as administrator of the estate of the common ancestor or as one of the tenants in common. Held, that the possession of H. must be referred to his right as tenant in common, and so did not stand in the way of the maintenance of the action.</p> <p>The evidence tended to show that plaintiff’s agreement to sell was upon condition that all the other heirs would agree to sell upon the same terms. Nothing was paid by H. thereon. At the time of the commencement of the action all of said heirs had not agreed to sell, and it did not appear that the improvements made by H. were of greater value than the income received by him. Held, that the evidence failed to sustain the counter-claim.</p> <p>It seems that if a definite and complete oral agreement had been made, it would have been void under the statute of frauds, as no part performance was shown.</p> <p>H. did not, in his answer or upon trial, ask that any account be taken of the improvements made by him, or that he have any allowance therefor. Held, that a refusal to make such an allowance was proper.</p> <p>Where, after the submission and decision 'of an action tried by the court, and upon settlement of a case therein, requests to find upon questions of fact were presented to the court, held, that they came too late and a refusal to find as requested was proper. (Code of Civ. Pro. § 1023.)</p>

(Reported below, 39 Hun, 29.) This action was brought by leave of the court, under section 677 of the Code, to recover damages for the alleged conversion of personal property levied upon by plaintiff O’Meara, as sheriff, by virtue of an attachment issued in an action wherein plaintiff Brown was plaintiff and one Morrison defendant. The defendant here justified his taking under a chattel mortgage executed to him by Morrison.

Appeals from orders of the General Term of the Supreme ■Court in the third judicial department, made November 15, 1887, which affirmed orders of Special Term denying motions by relators, incorporators of certain railroad corporations, organized under the reorganization act (Chap. 430, Laws of 1874, amended by chap. 446, Laws of 1876), for peremptory writs of mandamus directed to the secretary of state, requiring him to file in his office their certificates of organization.

(Reported below, 39 Hun, 269.) This was an action of ejectment brought by plaintiff, who claimed, as owner of two leases in fee, known as Van Rensselaer leases; one called the Abbott and Russ lease, covering 152^- acres, known as lot 402; the other called the Tubbs lease, covering 160 acres, known as lot 378.

This was an action for malicious prosecution. The evidence and findings of the referee disclose the following facts: « The defendant was assignee of a judgment in ejectment recovered in 1865, on a lease in fee for non-payment of rent, in which judgment Caleb Nelson was defendant. In February, 1883, an order was granted on the application of defendant, giving him leave to issue a writ of possession thereon.

The nature of the action and the material facts are stated in the opinion. A coupon-holder can sue upon his coupons, detached from the bonds, the .coupons having thus become complete negotiable instruments.

The material facts are stated in the opinion. The Surrogate's Court below had jurisdiction to prove the will in question as a lost will. (Code, §§ 1865, 2621.) A will once duly executed can only be revoked in the manner pointed out in the statute. (2 R. S., chap. 6, tit. 1, art. 3, § 42.) Parol evidence of the revocation of a will is inadmissible.

<p>Upon the trial of an indictment under the excise law (§ 13, chap. 628, Laws of 1857, amended by chap. 856, Laws of 1869), for selling liquor without a license, it is not necessary to establish that the offense charged was committed on the very day laid in the indictment; time is not of the essence of the crime.</p> <p>A conviction is proper under such an indictment, although the proof shows that the sale was on a Sunday. The fact that the law makes special provision for the punishment of a sale on a Sunday, whether the accused has a license or not (§ 21, as amended by chap. 549, Laws of 1873), has not so altered the general provision prohibiting sales, without a license as to render it inapplicable to a sale on that day.</p> <p>It seems a person guilty of a sale on Sunday, if he had no license, would be liable to indictment under either provision, but a conviction under one would bar a prosecution for the same sale under‘the other; and this, although the conviction was had upon an indictment under the general provision charging the sale to have been on a week day.</p> <p>In such case, if the accused should be again indicted under the provision prohibiting sales on Sunday, it would be competent to prove by paroi that the former conviction was for the same sale.</p>

The material facts are stated in the opinion. The court may reverse the action of the commissioners, in the exercise of a sound' discretion, guided by legal principles; but it cannot, in total disregard of the weight of evidence and of the right of the commissioners to determine upon the credibility of the witnesses, capriciously reverse their decision. (People ex rel. Foley v. French, 8 Week.

The nature of the action and the material facts are set forth in the opinion. The plaintiffs utterly-failed to show title either to the dam or artificial ditch or race-way in question, or possession thereof, or any easement therein or thereto. (Hudson v. Swan, 83 N. Y. 552; Ferris v. Brown, 3 Barb. 105, 109, 110; Hawkins v. Wallis, 2 Wils. 173; Miller v. L. I. R. R. Co., 71 N. Y. 381, 386; Smith v. Felt, 50 Barb. 612; Kelly v. N. Y. & Man.

(Reported below, 41 Hun, 404.) The facts are sufficiently stated in the opinion. It was error not to direct a verdict for the defendant, on the ground of contributory negligence on the part of the parents.

Motion to dismiss appeals by the commissioners of the land, office and by the Bartholomay Brewing Company from an order of the General Term of the Supreme Court in the third judicial department, made July 2, 1888, which reversed a decision of said commissioners granting the application of said company for title to certain lands under navigable waters.. The facts, so far as material, are stated in the opinion.

This action was for the alleged conversion of a piano delivered by plaintiff to defendants for storage in their storage warehouse. Defendants, by supplemental answer, set up title in the executors of plaintiff’s deceased husband and a delivery to them on demand. The facts, so far as material, are set up in the opinion.

Appeal by defendants Lorillard and the Lorillard Steamship Company from judgment of the General Term of the Supreme Court in the second judicial department, entered upon an order made May 14, 1888, which affirmed an interlocutory judgment entered upon an order overruling a demurrer to plaintiff’s complaint. The averments of the complaint are substantially as follows : The plaintiff is a stockholder of the defendant, the Old Dominion Steamship Company of Delaware.

(Reported below, 39 Hun, 262.) This was an action of ejectment to recover possession of certain lands in Albany county. The material facts are stated in the opinion. The rule that a tenant cannot dispute the title of his landlord does not extend to preclude him from rendering his possession adverse.

<p>It seems that, under the act "to secure adequate compensation for the right to construct * * * street railroads in cities ” (Chap. 65, Laws of 1886, as amended by chapter 643, Laws of 1886), and under the provisions of the state Constitution applicable to the construction of such railways, the municipal authorities have the absolute power to grant or withhold their consent to the construction of such a railroad, and may impose any condition, which, in the exercise of their discretion, they deem proper as the terms upon which their consent will be given.</p> <p>In the notice of sale, however, of the right to use a street for such a purpose required by said act (§ 1), the conditions must be specified, and no other conditions can be inserted in the consent, or exacted or imposed upon the successful bidder, than those required by the act and the notice.</p> <p>Where, therefore, the common council of the city of Buffalo, upon application made to it, consented to the construction of a railway in certain of the city streets, published a notice of sale, as prescribed in the statute, and the city comptroller awarded the franchise to the highest bidder, but that officer required a bond containing conditions not required by the statute, the resolution of the common council or the notice of sale, and refused to accept a bond containing all the prescribed conditions because it did not contain those so required by him, while expressly admitting that the penalty of the bond and the sureties were satisfactory, held, that the comptroller had no right to exact a bond, such as was .required by him, but was bound to accept and approve of the bond presented; and that the purchaser was entitled to a mandamus to compel such acceptance and approval.</p> <p>Certain other conditions contained in the bond presented were not objected to by the comptroller, and were mainly for the performance of such things as the law without any agreement, requires the purchaser to perform. Held, that such conditions were not illegal or against public policy; and that it could not be claimed, as an objection to the issuing of the writ, that the bond would be void, as given colm'e offieii, because it was voluntarily tendered to obtain a franchise, and certainly, after having compelled the comptroller by mandamus to accept and approve the bond, it could not be maintained by the obligors that it was illegally exacted.-</p> <p>The common council required, as a condition to its consent, that the purchaser of the franchise should carry passengers, for a single fare, to and from points beyond the termini of the proposed route over the road of other street railways. Held, that this was a condition the common council had a right to impose.</p>

<p>.Plaintiffs’ complaint alleged, in substance, 'that they and defendant were the owners of adjoining premises and buildings; that defendant had trespassed upon their premises by inserting stove pipes into their chimneys and thereby causing damage. The answer admitted the averments as to ownership, but denied the trespass and injury, and alleged that the wall between the two buildings is a party-wall, standing partly on each lot, and that the chimney into which the stove pipe holes open is the common property of both parties. Held, that a claim of title to real property did not arise upon the pleadings, within the meaning of section 3228 of the Code of Civil Procedure; and, that a recovery of nominal damages did not entitle plaintiffs to costs.</p> <p>.It seems the section requires the existence in the pleading of a claim of title to realty which, if proved, will defeat or maintain the action as the ease may be.</p>

<p>Appeal from judgment of the General Term of the Supreme Court in the fifth judicial department, made June 17, 1886, which reversed an order of Special Term directing a new trial and directed judgment in favor of plaintiff upon the report of a referee herein. (Beported below, 41 Hun, 9.)</p> <p>The plaintiff presented a claim against the estate of Daniel Denise, her deceased husband, for a balance, alleged to be due under a contract, the substance of which is stated in the opinion, which, being disputed by the administrator, was, by stipulation made between them, referred under the statute,</p> <p>The facts, so far as material, are stated in the opinion.</p> <p>Under the circumstances, this com't can look into the evidence far enough to see whether the referee’s conclusion, that an arbitration was had, is justified. (Duffy v. Masterson, 44 N. Y. 557; St. Luke's Home v. Asso. for Relief, 52 id. 191.) The arbitration, being verbal, was invalid. (R. S., part 3, chap. 8, tit. 14.) The award was not sufficiently definite to enable the court to enforce it. (Fallow v. Kelcher, 16 Hun, 266.) This action was barred by the statute of limitations. (Buckline v. Chapin, 1 Lans. 443-449; Comstock v. Olmstead, 6 How. 77; Hulstauder v. Thompson, 5 Hun, 348; Sanford v. Sanford, 2 id. 94; affirmed, 62 M. T. 553; Dalton v. Sandland, 4 Civ. Pro. R. 73; Code of Civ. Pro. §§ 380, 382, 403, 414.) The statute of limitations would have been available as a defense herein, although not pleaded, before the Code of Civil Procedure took effect. (Tracy v. Sydham, 30 Barb. 110; Buckline v. Chapin, 1 Lans. 443, 447; Heath v. Grenell, 61 Barb. 193, 194; Hulstauder v. Thompson, 5 Hun, 348; Converse v. Miner, 21 id. 367, 373.) This is not an action; it is a special proceeding, and it was not necessary to interpose the defense of the statute by answer. (Roe v. Boyle, 81 N. Y. 305, 307; Raynor v. Laux, 28 Hun, 35, 36; Code of Civ. Pro. §§ 2533, 2534, 2739, 2740.) The findings, having been duly excepted to by the defendant,' this court will look into the case to see if they are supported by evidence. (Sickles v. Flannigan, 79 N. Y. 224; Taylor v. Guest, 58 id. 262-265.) The plaintiff and decedent having lived together as husband and wife, there is no presumption that either should pay the other for labor or support; the presumption is to the contrary. (Gallaher v. Vought, 8 Hun, 47; 1 Tucker, 28; 2 Bradf. 336; 2 Denio, 149 ; 3 N. Y. 317; 5 Barb. 122; Carpenter v. Weller, 15 Hun, 134; Lind v. Sullertadt, 21 id. 364; 11 Alb. L. Jour. 20.) The error in receiving plaintiff’s testimony as to who provided the necessaries for the house and the support of the family was sufficient to warrant a reversal of the judgment. (Williams v. Davis, 7 Civ. Pro. Rep. 282-285; Abb. Trial Ev. 69; Fisher v. Verplanck, 17 Hun, 150; S. C., 21 id. 73; Lerche v. Brasher, 8 Civ. Pro. Rep. 115.) The defendant’s practice in moving at the Special Term upon a case to set aside the referee’s report and for a new trial was correct. (Smith v. Velie, 60 N. Y. 106; Summerville v. Cook, 9 Hun, 664; Frain v. Vantine, 16 id. 528; Schreyer v. Holborow, 63 How. 228; Young v. Cuddy, 23 Hun, 249; Raynor v. Laux, 28 id. 35.) The provision in the order and judgment awarding to the plaintiff the referee’s fees and other disbursements of the action and the costs on the appeal to the General Term was erroneous. (R. S., part 2 [Banks’ 7th ed.], § 37, art. 2, chap. 6; Horton v. Brown, 29 Hun, 654; Clerke v. Tunicliffe, 38 N. Y. 58-62; Willey v. Shaver, 1 T. & C. 324-328; Ex parte Bennett, 3 Denio, 175.)</p> <p>The circumstance that a question is so framed as to give an opportunity to a witness to give incompetent testimony is not a sufficient ground for excluding the question where it does not necessarily call for incompetent testimony, and in such a case if the answer turns out to be incompetent, the remedy of the party objecting is to move to strike it out. (Kerr v. McGuire, 28 N. Y. 452; Franklin, v. Pickney, 18 Abb. 186; Edington v. Ætna, etc., Ins. Co., 77 N. Y. 570.) The answer as to by whom the necessaries for the house and the support of the family were furnished did not necessarily indicate a personal transaction between the plaintiff and the deceased. (Lewis v. Merritt, 98 N. Y. 209.) The answer of the witness being harmless to the defendant, the judgment should not be reversed because of its admission. (Bennett v. Austin, 5 Hun, 536; Code, § 1003; Smith v. Kerr, 1 Barb. 155; Vallance v. King, 3 id. 548; Allan, v. Way, 7 id. 585; Northrup v. Wright, 21 Wend. 221; Norris v. Badger, 6 Cow. 449; Graham & Waterman on New Trials, 651; Horner v. Everett, 47 Super. Ct. [J. & S.] 298; Henderson v. Fullerton, 54 How. 422.) Ho part of the claim was barred by the statute of limitations. (Gilbert v. Comstock, 93 N. Y. 484; Wood on Limitations, 238; Bank of California v. Webb, 94 N. Y. 472; Munger on Application of Payments, 115; Angell on Limitations [5th ed.] 240; Gilbert v. Comstock, 93 N. Y. 483.) The contract was a valid one. (Jacques v. M. E. Church, 17 Johns. 548; Murphy v. Carpenter, 22 Hun, 15; Schouler on Husband and Wife, §§ 235, 394; Jaycox v. Caldwell, 51 N. Y. 395.)</p>

(Reported below, 45 Hun, 198). This action was originally brought by plaintiff, as sole surviving trustee under the will of Daniel C. Kingsland, deceased, to restrain defendants from further filling in and to require them to remove a bulk-head erected and solid filling deposited by them in front of plaintiff’s bulk-head on the Hudson or North river, and to recover damages.

This action was brought to restrain an alleged interference with a pipe conducting water from a spring to plaintiff’s dwelling-house and to recover damages for severing said pipe and depriving plaintiff of the use of the water. The referee found, substantially, the following facts.

(Eeported below, 39 Hun, 227.) The nature of the action and the material facts are stated in the opinion. There was an actual abandonment by Mrs. Higgins, of the easement, accompanied by an intention on her part that it should be permanent, and a substitution of another easement in its place; which was followed by acts involving expenditure on the part of Snell on the faith thereof, such as laying pipe and diverting the water from the spring to other houses. (Washb.

This was an action upon an administrator’s bond. In July, 1883, Gilbert Dunspaugh died in Queens county intestate, and in ¡November of the same year the plaintiff and one Burton T. Beach were appointed administrators of his estate. The administrators’ bond, duly approved and filed, was executed by William Sperb, Jr., Burton T. Beach, Benjamin G. Mitchell and Henry T. McOoun, Jr., unto the People of the state of Hew York in the sum of $4,000, and was joint and several.

<p>Appeal from judgment of the General Term of the Supreme Court in the third judicial department, entered upon an order made at the May Term, 1886, which affirmed a judgment in favor of plaintiff, entered upon a verdict and affirming an order denying a motion for a new trial.</p>

<p>Appeal from order of the General Term of the Supreme Court in the second judicial department, made February 15, 1888, which reversed an order of Special Term amending a notice of appeal by the land owners from an order confirming the appointment of commissioners of appraisal.</p>