Volume 112 — New York Reports

The nature of the action and the material facts are stated in the opinion. The lease and the guaranty stamped on the certificate of stock constituted one transaction. (Boardman v. L. S. & M. S. R. R. Co., 84 N. Y. 157.) After a dividend has been declared, each shareholder has, as against the corporation, an unconditional right, to his portion of it. (Taylor on Private Corp. §§ 568, 750; Le Roy v. Globe Ins. Co., 2 Edw. Ch. 657; Kane v. Bloodgood, 7 Johns.

The nature of the action and the material facts are stated in the opinion. - Under the charter, as it existed when the contract was let, such contracts were to be paid from assessments collected. (Laws of 1872, chap. 302, § 3.) Where a way of payment is prescribed by statute or by the contract, that way must be strictly pursued. (Swift v. Mayor, etc., 83 N. Y. 528-535; Dannat v. Mayor, etc., 66 id. 591; Howell v. Buffalo, 15 id. 512-519; Baldwin v. Oswego, 1 Abb. Ct. App.

Appeal by property owners from order of the General Term of the Supreme Court in the second judicial depart-ment, made May Id, 1888, which affirmed an order of Special Term appointing commissioners to ascertain and appraise the compensation to be made to said landowners for lands sought to be taken by the petitioner. The petitioner was organized and these proceedings were instituted under the ¡Rapid Transit Act (Chap. 606, Laws of 1875).

Appeals from four orders of the General Term of the .Supreme Court in the second judicial department, made June 25, 1888, affirming orders of Special Term granting the application of the petitioner for the appointment of commissioners to appraise the compensation to be made to the owners or persons interested in the streets and premises in the city of Brooklyn sought to be acquired by the petitioner for the purposes of its road.

Appeal by defendant, Cortlandt H. Bliven, from a judgment of the General Term of the Supreme Court in the Second Department of February 13,1888, affirming a judgment of the Court of Sessions of Kings County, Hon. Henry A. Moore, County Judge, presiding, of October 17, 1887, entered upon the conviction of defendant of abortion. The appellant was tried separately, and was convicted and sentenced to imprisonment for three years and six months.

<p>Appeal from judgment of the General Term of the Supreme Court in the first judicial department, entered upon an order made on the first Monday of May, 1887, which affirmed a judgment in favor of plaintiffs entered upon the report of a referee. (Mem. of decision below, 4A Him, 561.)</p> <p>This was an action of ejectment.</p> <p>The facts, so far as material, are stated in the opinion.</p> <p>The decree against "Waddell, individually, did not affect the rights he held as assignee. (Evans v. Mann, Cowp. 569 ; Merrill v. Seaman, 6 N. Y. 171; Jackson v. Ferris, 15 Johns. 346; Colt v. Colt, 111 U. S. 566-581; Romaine v. Sickles, 108 N. Y. 652; Van Cott v. Prentice, 104 id. 45-57; Pathbone v. Honey, 58 id. 465-467; Vetterine v. Barnes, 26 Week. Dig. 68; Fisher v. Hubbell, 65 Barb. 74-90 ; Hunt v. Smith, 1 Week. Dig. 13; Titus v. Fairchild, 49 Super. Ct. [J. & S.] 220; Cruger v. H. R. R. R. Co., 12 N. Y. 201; Gould v. Glass, 19 Barb. 185.) If the foreclosure suit against Waddell was .against him as assignee the judgment was void, because the .action was brought without leave of the court. (Van Sachs v. Fretz, 72 N. Y. 548; Phelps v. Sillick, 8 Bank. Reg. 390; Bartow v. Barbour, 104 U. S. 126; Eyster v. Gaff, 91 id. 521; Bigelow on Estoppel [4th ed.] 123, 124.)</p> <p>All intendments are in -favor of the validity of the judgment of a court of general jurisdiction until want of jurisdiction is affirmatively shown. (Maples v. Mackey, 89 N. Y. 146; Chemung Canal Bk. v. Judson, 8 id. 260; Wells v. Wells, 10 N. Y. State Rep. 251.) The provision of the bankrupt act, that the property shall be sold as the bankruptcy court shall direct, is for the benefit of the creditors. The assignee may, for himself and the creditors, waive that benefit. If he submits himself to the jurisdiction of a state court, he and they are bound by its judgment. (Norton’s Assignee v Boyd, 3 How. [U. S.] 426; Mays v. Fritton, 20 Wall. 414; Eyster v. Gaff, 2 Col. 228; 91 U. S. 521; Jerome v. McCarter, 94 id. 734; Cleveland v. Boerum, 24 N. Y. 613; McHenry v. La Soulte, 95 U. S. 58; Tullis v. Miller, 13 Hun, 363 ; Jones on Mort. [3d ed.] §§ 1232-1235 ; Bump on Bankruptcy [10th ed.] 212; Chesterman v.Eyland, 81 N. Y. 405.) Waddell woidd have been estopped from denying the regularity of the proceedings as against the plaintiffs’^testator, who purchased, in good faith for a valuable con.sideration, his interest at the foreclosure sale, and the defendants, who claim to have obtained Waddell’s interest by a subsequent conveyance, stand in his place and are equally bound. ( White v. Evans, 47 Barb. 183 ; Stearns v. S. L. R. R. Co., 2 N. Y. State Rep. 391; Franklyn v. Hayward, 61 How. Pr. 43; Vanderkemp v. Shelton, 11 Paige, 28; Benedict v. Gilman, 4 id. 62; Bolles v. Duff, 43 N. Y. 474 ; 5 Wait’s Prac. 247; 2 R. S. [1st ed.] 191, § 151; Lansing v. Goelet, 9 Cow. 346; House v. Lockwood, 1 N. Y. State Rep. 199 ; Ward v. Southfield, 102 N. Y. 293; Maybin v. Raymond, 15 Bank. Reg. 367; Smith v. Long, 12 Abb. N. C. 122; Palmer v. Morrison, 51 Super. Ct. [J. S.] 530; Williamson v. Brown, 15 N. Y. 362 ; Baker v. Bliss, 39 id. 74; Price v. Brown, 101 id. 669; Sedg. & Wait’s Title to Land, 775.) A general allegation in a complaint to foreclose a mortgage that a person has, or claims to have, an interest in the premises, which interest is subject to the mortgage, is sufficient to show that he is a proper party. (Wagner v. Hodge, 34 Hun, 526 ; Lewis v. Smith, 9 N. Y. 514; Drury v. Clark, 16 How. Pr. 424; Frost v. Koon, 30 N. Y. 428, 440; Bowen v. Wood, 35 Ind. 268; Jones on Mort. [3d ed.] §§ 1231,1473; .Thomas on Mort. [2d ed.] § 792 ; 5 Wait’s Prac. 197; 1 Abb. Forms, 599; Kingsland v. Stokes, 61 How. Pr. 494; Patterson v. Copeland. 52 id. 460 ; Skelton v. Scott, 18 Hun, 375 ; White v. Joy, 3 Kern. 83; Beers v. Shannon, 33 N. Y. 297; Stilwell v. Carpenter, 62 id. 639; Bliss on Code PI. [2d ed.] § 145 ; 2 Chitty on PI. [16th Am. ed.] 3; Cordier v. Thompson, 8 Daly, 172; Holden v. Sackett, 12 Abb. Pr. 473; Westbrook v. Gleason, 79 N. Y. 23; Wing v. Field, 35 Hun, 617; Green-leaf v. B. R. R. Co., 37 id. 435 ; Cleveland v. Boerum, 24 N. Y. 613.)</p>

(Reported below, 48 Hun, 235.) The material facts are stated in the opinion. The statute did contain words specifically expressing a legislative intent that the statute should take effect immediately, so far, at least, as to the liability to taxation of certain classes of legacies in wills of persons dying after the act had received the assent of the executive. (1 R. S. [Banks’ 7th ed.] 433, §§ 10, 11, 12; Wartmam, v. Philadelphia, 33 Pa.

The order of reversal stated that it was granted “ for the reason that the action is not maintainable.” This action was brought by plaintiff as devisee under the will of John Anderson, of all of the real estate of which he died seized, against the heirs-at-law of the testator.

<p>An action brought by the district attorney of a county in the name of the People to recover a penalty under the game laws (Chap. 534, Laws of 1879, as amended by chap. 531, Laws of 1880, and chap. 317, Laws of 1883), is an action “ to recover money or property or to establish a right or claim for the benefit of a county ” within the meaning of the section of the Code of Civil Procedure (§ 3343) in reference to costs in such an action; and where costs are awarded to the defendant, they must be awarded against the county as prescribed in said section.</p>

<p>Under the act of 1876 (Chap. 187, Laws of 1876), authorizing defendant to operate its railroad on A. avenue in the city of B., subject to such rules and regulations as to rate of speed and public safety as the common council should prescribe, that body directed the construction of a fence on either side of defendant’s tracks laid in said avenue, with openings and crossings at every street and “spaces at intervals of not exceeding two hundred and fifty feet to allow the crossing of persons on foot.” Upon compliance with this and certain other precautionary provisions, defendant was permitted to run its cars at any rate of speed. P., plaintiffs intestate, in attempting to cross the tracks at one of the “ spaces” or-openings, between street-crossings, left for persons crossing the avenue on foot, was run over and killed. In an action to recover damages no failure on the part of defendant to comply with these, precautionary provisions was proved. It appeared that the accident occurred about 6 a. m. ; the morning was cloudy and rainy or drizzly. A train had just passed on the south track nearest to P. as he went through the fence, and the smoke from its engine settled down behind it upon the road so as temporarily to obscure objects in the line of vision. P., however, went straight on across said track to and upon the north track where he was struck by a train thereon and killed; he was sixty-six years of age and his hearing somewhat impaired. Whether the engineer sounded the whistle or rang the bell was a fact in dispute. Meld, the evidence failed to show any negligence on the part of defendant; that whether the whistle was blown or bell rung was immaterial, as no duty rested upon defendant to give notice either way, at that point, of an approaching train; that the engineer was not required because of the smoke to give an alarm or signal, as he was not bound to apprehend a danger which could only occur to a reckless pérson; and, also, that P. was, as matter of law, guilty of contributory negligence, as he should have stopped until the smoke disappeared; and that, therefore, a refusal to nonsuit was error.</p>

This action was brought to compel the payment of a legacy of $2,000 given under the will of Job Seaman, deceased, to Job S. Benjamin, plaintiff’s testator, and in the event of the personal estate being insufficient to have the deficiency charged upon the real estate of which said Seaman died seized and so much thereof sold as should be necessary to pay such deficiency. The provisions óf the will and the facts, so far as material, are set forth in the opinion.

This action was brought to recover license fees provided for by chapter 512 of the Laws of 1860. The facts are sufficiently stated in the opinion. Where the grant authorizing the construction of the railroad does not reserve license fees, and contains no provision on the subject, the common council has no power to add to the obligations of the contract created by the granting and acceptance of the railroad charter.

The material facts are stated in the opinion. The locus in quo having been used and occupied as such for more than twenty years is a public highway. (2 B. S. [5th ed.] 405, § 135; Porter v. Village of Attica, 20 N. Y. Week. Dig. 224.) The acquiescence of the state for so long a time in the public use of the street amounted to a license or permission, and imposed a duty upon the state to exercise reasonable care for the protection of persons passing over it.

The nature of the claim and the material facts are set forth in the opinion. Claimant’s assignors were hound to inquire and ascertain the extent of the authority of the health officer. (Martin v. Farnsworth, 49 N. Y. 558.) No power to create any debt against the state existed upon the part of the commissioners or the health officer.

Appeal by defendant McDonald from judgment of the General Term of tlié Supreme Court-in the fourth judicial department, entered upon an order made July 1, 1886, which affirmed a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term.

This action was brought to obtain a judicial construction of the will of Jacob Vanderpoel, who died in February, 1884, seized and possessed of real estate valued at about $575,000, and personalty of the value of about $25,000. The testator left four children and one grandchild, tne daughter of a deceased son, his only heirs-at-law him surviving. The material portions of the will are as - follows: “ First.

(Reported below, 42 Hun, 561.) This action was brought by the owner of property abutting on West Third street in the city of ¡New York, to recover damages caused by the construction and operation of defendant’s road in said street. Upon the trial plaintiff abandoned his claim for damages to the easements of air and access, and rested his claim for compensation solely upon the damages to the easement of light.

<p>Appeal from judgment of the General Term of the Supreme Court in the second judicial department entered upon an order made July 1, 1887, which affirmed a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term.</p> <p>The action was brought by the plaintiff to procure a construction of a written contract embodying certain conditions on the sale of lands, and, when construed, a specific performance of it.</p> <p>The answer admitted the execution of the contract and, denying some of the allegations of the complaint, set up as an affirmative defense the refusal of the plaintiff to execute a bond and mortgage as required by the agreement. The Special Term gave the relief asked for by the plaintiff, upon condition that within twenty days he pay the sum called for by the contract, with interest, execute the bond and mortgage referred to, pay $10 for preparing them and the costs and expenses of the action and $30 extra allowance.</p> <p>The facts found by the trial judge as justifying this conclusion, were, that on the 6th of November, 1885, the defendant put up the lands mentioned in the complaint for sale by public auction on certain terms, of which the following only are material:</p> <p>(1st.) Payment of ten per cent of the purchase-money on the day of and immediately after the sale.</p> <p>(2d.) The residue of said purchase-money will be required to be paid to the said executor at the office of Bergen & Dylcman, No. 189 Montague street, in the city of Brooklyn, on the 25th day of November, 1885, when the executor’s deed will be ready for delivery.</p> <p>(3d.) The executor is not required to send any notice to the purchaser; and if he neglects to call at the time and place above specified to receive his deed, he will be charged with interest thereafter on the whole amount of his purchase, unless the executor shall deem it proper to extend the time for the completion of said purchase.</p> <p>(4th.) Belates to taxes and incumbrances.</p> <p>(5th.) Requires the conditions to be signed.</p> <p>(6th.) The biddings will be kept opened after the property is struck down; and in case any purchaser shall fail to comply with any of the above conditions of sale, the premises so struck down to him will be again put up for sale under the direction of said executor under these same terms of sale, and such purchaser will be held liable for any deficiency there may be between the sum for which said premises shall be struck down upon the sale and that for which they may be purchased on the resale, and also for any costs or expenses occurring on such resale.</p> <p>(7th.) Seventy per cent of the purchase-money may remain on bond and mortgage (containing the usual interest, insurance, tax and assessment clauses), at the option of the purchaser, for the term of three or five years, with interest at five per cent per annum, payable semi-annually, "the bond and mortgage to be drawn by the counsel of the seller, at an expense of $10 to the purchaser, who shall also pay for recording the said mortgage.</p> <p>That the plaintiff purchased two of the lots for $600, paid the required ten per cent, and signed the conditions of sale. That the property consists of vacant lots, with no improvements of any kind thereon, and no property of any kind which could be the subject of insurance. That the mortgage tendered to the plaintiff for execution as a compliance with the conditions of sale contained the usual insurance clause, and plaintiff declined to execute it as not called for by his agreement. That the defendant still retains all the amounts paid by the plaintiff in part performance of said contract, and defendant has never offered to return or refund the same to the plaintiff. That the plaintiff did not at any time intend to abandon or relinquish his rights under the said contract.</p> <p>Although time was not in the beginning of the essence of the contract, it may be made so by notice. (Fry on Specific Performance, §§ 709, 722; Story’s Eq. Jur. § 776; Myers v. De Mier, 52 N. Y. 647; Page v. McDonnell, 55 id. 299.) The rise in the value of the lots before this suit made time of the essence of the contract. (Peck v. Goodberlett, 109 N. Y. 180, 189; Sickles v. Flanagan, 79 id. 224; Meacham v. Burke 54 id. 217; Beck v. Sheldon, 48 id. 365; Thomson v. Bank of B. N. A., 82 id. 1; Edgerton v. Peckham, 11 Paige, 352, 354 ; Merchants’ Bank v. Thomson, 55 N. Y. 7, 16.) Irrespective of whether time became of the essence of the contract, the plaintiff should have been denied a specific performance, not having excused his delay, and not having proved that he was “ready, desirous, prompt and eager.” (Merchants’ Bk. v. Thomson, 55 N. Y. 7, 16; Taylor v. Longworth, 14 Pet. 172; Delevan v. Duncan, 49 N. Y. 485, 488; Jackson v. Edwards, 22 Wend. 498; Lloyd v. Collett, 4 Brown’s Ch. 469 ; Benedict v. Lynch, 1 Johns. Ch. 370, 374; Page v. McDonnell, 55 N. Y. 299.) This court will make no intendments contrary to the findings in order to support a judgment. (Armstrong v. Dubois, 90 N. Y. 95.) 27o other findings than those made by the referee will be presumed by this court. (Oberlander v. Spiess, 45 N. Y. 175; Meyer v. Amidown, Id. 169, 172; Comstock v. Ames, 3 Keyes, 357; Armstrong v. Dubois, 90 N. Y. 95 ; Hays v. Miller, 70 id. 112; Valentine v. Conner, 40 id. 248.) The plaintiff was not entitled to the judgment he obtained, because it is contrary to his allegations and the prayer for relief in his complaint. (Truesdell v. Sarles, 104 N. Y. 164; Boyd v. Schlessinger, 59 id. 301, 308.)</p> <p>A court of equity has the power to relieve a party from his forfeiture of a contract for the sale of land, and will where there has been no material change in value and the circumstances decree specific performance. (Willards Equity [Potter’s ed.], ,56; Story’s Eq. § 742; 3 Pom. Eq. 446; Mer. Bk. v. Thomson, 55 N. Y. 12; Hubbell v. Van Schoening, 49 id. 331; Finch v. Parker, id. 11; Voorhees v. De Meyer, 2 Barb. 37, 38, 49; Seaman v. Rensselaer, 10 id. 82, 86; Cythe v. La Fountain, 51 id. 186, 193; Edgerton v. Peckham, 11 Paige, 363, 365 ; Rose v. Rose, Amb. 332; Grunston v. Bruce, 2 Vern. 594.) There is no certain rule as to what will constitute a stale equity. Each case must be judged and decided upon its surrounding circumstances; what has been paid, what has been done by the purchaser, showing good faith, and any reasonable excuse for delay. (Story’s Eq. §§ 742, 751; Raynor v. Pearsall, 3 Johns. Ch. 578, 586; Atwater v. Fowler, 1 Edw. 417; Hub-bell v. Van Schoening, 49 N. Y. 331.) A delay of fourteen months was excused. (Marquis of Hertford v. Boose, 5 Ves. 719 ; Glover v. Fisher, 11 Ill. 666, 674, 677; Voorhees v. De Meyer, 2 Barb. 37, 38,49.) The complaint seeks a construction of this contract; equity will entertain such an action. (Fallon v. Lawler, 102 N. Y. 228; McKechnie v. Ward, 58 id. 541.)</p>

decision of the court on trial at Special Term. The nature of the action and the facts, so far as material, are stated in the opinion It was the intention of the testator, in the second clause of his will, to make the payments of the annuities therein specified dependent upon the condition that the plaintiff could make them, and not upon the condition that she might arbitrarily determine that she did not elect to pay.

<p>Under the New York City Consolidation Act (§§ 170, 180, chap. 410, Laws of 1882), the commissioners of the sinking fund when about to lease “the franchise of a ferry” are authorized to lease along with the franchise wharves or piers used or required for the purposes of the ferry, such lease to be “in the manner provided by law,” i. e., (§ 170) “for the highest marketable price or rental at public auction or by sealed bids.” The wharf or pier is to be leased along with the ferry franchise as part thereof, the whole to be put up as one entire piece of property.</p> <p>The city has power to include in one leasing or sale two ferry franchises with the wharves or piers used in connection therewith ; it is a matter in the discretion of the commissioners, and in the absence of evidence showing an abuse of that discretion this court may not interfere.</p> <p>Said commissioners advertised for sale, for a term of years, two ferry franchises, together with the right to occupy and use certain wharf property used for the purposes of said ferries. The terms of sale provided that the franchises would be offered “atan upset price of five per cent on gross receipts from ferriage of each of said ferries, and a yearly fixed rental of ten thousand dollars for the wharf property.’' Held., that a sale made on the conditions and in the manner stated in the advertised terms of sale was proper and valid ; and that a bid of $15,000 for the wharf, and a less percentage on the gross receipts than that offered by the successful bidder, was properly rejected.</p> <p>It seems the same conclusion would be reached if the provision requiring the lease to be made “in the manner required by law ” should be construed to mean in the manner prescribed by the section of said act (§ 716) requiring that all leases (with certain exceptions not material) “ shall be made at public auction to the highest bidder.”</p> <p>In re Merriam (84 N. Y. 596) distinguished.</p> <p>The successful bidder was a railroad corporation. In an action brought by a taxpayer, under the act of 1881, “for the protection of taxpayers” (Chap. 531, Laws of 1881), to set aside the lease, held, that, conceding the action was maintainable under said act, plaintiff could not raise the question as to the lack of power of said corporation to make the contract.</p> <p>As a general rule no private citizen has the power to question, by legal proceedings, the action of a corporation, as being ultra vires, where he has no interest except that of any other citizen.</p> <p>It seems, in such case, the People, through their attorney-general, are the proper parties to present that question.</p> <p>It seems, also, that, in an action by the city to recover rent, the fact that the railroad corporation had no legal right to enter into the contract would be no defense.</p>

This action was brought to have an assessment upon plaintiff’s premises for regulating and grading Broadway in the city of New York adjudged invalid and to recover back money paid by plaintiff in satisfaction thereof. The judge at Special Term held the assessment to have been illegal and void, and directed judgment for the amount paid. The General Term reversed that judgment and ordered a new trial, on the ground that the statute of limitations was a bar to the action.

(Reported below, 22 J. & S. 295.) This action was brought to recover damages for alleged negligence causing the death of Richard Galvin, plaintiff’s intestate. The material facts are stated In the opinion.

(Reported below, 41 Hun, 420.) The nature of the action and the material facts are stated in the opinion. The court had no jurisdiction over the defendants. (Story on Contracts, § 2 ; Story on Conflict of Laws, §§ 362, 513; Parsons v. Lyman, 20 N. Y. 103; People ex rel. Jefferson v. Smith, 88 id. 576; Hoyt v. Comrs. of Taxes, 23. id. 224; Doolittle v. Lewis, 7 Johns.

This action was brought to recover damages for alleged negligence causing the death of plaintiffs’ intestate. The plaintiffs sue as the administrators of one Foster, who, while driving along a highway crossed by the defendant’s road, was run over by its engine and killed. The company had for many years provided gates at this crossing on each side of its track, to be shut when locomotives or trains were passing, and to be open at other times.

(Reported below, 42 Hun, 232.) This action was commenced by Bichard Parr in his lifetime, to recover liquidated damages for the breach of a… Held: at which the president stated that the village was threatened with lawsuits to the amount of $9,000 or $10,000, in the case of Bichard Parr, and that in the record of the board of trustees for the year 1870 there was no mention of a contract with the board for the construction of a sidewalk on the west side of East street.

(Reported below, 44 Hun, 378.) The nature of the action and the material facts are stated in the opinion. Henry Rutgers being the owner of the upland and the grantee of the city of land to low-water mark, his devisees had the right of riparian owners to built wharves and piers.

accounts of respondents as trustees under the will of Samuel Willets, deceased. Sometime before February 28,1883, Samuel Willets, of the city of New York, died leaving a last will and testament, with two codicils thereto, which, on that day, were admitted to probate by the surrogate of the city of New York. The testator by his will devised and disposed of property amounting to about $2,500,000.

This action was brought to obtain a judicial construction of the will of Robert R. Mcllvaine, deceased. The provisions of the will, so far as they were brought in question, are as follows: “First.

(Reported below, 47 Hun, 174.) Plaintiff had previously, in pursuance of an order deposited $250 as security. The order appealed from was made without jurisdiction. There is no power in the court to require additional security for costs where a deposit is made. (Tidd’s Prac. 945-976; Tates’ PL; Lilly’s. Entries; Downing v. Marshall, 37 N. Y. 380; People v. Bd. of Police, 39 id. 506; People v. McDonald, 69 id. 362, Code, §§ 3272-3276; Republic of Mexico v. Arrangois, 3 Abb.

the summons and dismiss the complaint herein for want of jurisdiction and which granted the motion. The nature of the action is stated in the opinion. The administrator, plaintiff, by reason of his having duly received from the surrogate of the county of New York letters of administration, which are still in force, is in conteinplation of law a resident therein. (Parsons v. Lyman, 20 N. Y. 103, 112; Morrell v. Dickey, 1 Johns.

<p>In March, 1878, the defendant W. entered into an agreement in writing for the payment of a loan in installments, and in a certain contingency mentioned, to give “ satisfactory security for the repayment of said loan-by installments above mentioned, or to pay the same forthwith in cash.” It was not stipulated that the security should be on real estate or what kind of security should be given. The contingency having happened in May, 1878, plaintiff caused the agreement to be recorded as a mortgage and commenced this action against W., alleging in his complaint the execution of the agreement, a failure to pay the entire loan or to give security therefor, and that it was the intention and purpose of the agreement that defendant should mortgage to plaintiff certain real estate mentioned. The relief demanded was that' W. should specifically perform his agreement and execute a mortgage upon said premises; also a judgment of foreclosure and sale. On the same day plaintiff filed a notice of the pendency of the action, in which he stated the object of the action substantially as in the complaint and described the premises to be affected. In January, 1879, W. answered, denying any breach of the agreement and setting up various payments. Mo steps were taken in the trial of the issue until February, 1884, when the trial was had. At that time W. had no personal interest in the real estate and was insolvent. He directed his attorneys to let the case go by default, but this they did not do. In January, 1885, a judgment was entered granting the relief sought and directing a sale. On April 15, 1885, plaintiff, in pursuance of the judgment, advertised the property for sale. In June, 1879, an action for the partition of the same real estate was commenced in which W. was a party, but the plaintiff herein was not. A judgment of sale was rendered and in 188 L the property was sold thereunder to S. W.’s share of the money received was used to pay off a mortgage which was prior to the contract in suit. In 1882 S. conveyed said premises by full covenant deed, and his grantee in 1883 conveyed them by full covenant deed to the defendants G-. In March, 1885, the administratrix of S. moved to be made a party defendant herein, also that the judgment be vacated, set aside or modified and that she be permitted to defend, and in April, 1885, the defendants GK made a like application. Both applications were grafted and they appeared and answered. Upon the trial of the issues made by these answers plaintiff was defeated on the merits and his complaint dismissed. He then appealed from the order allowing the defendants S. and Gr. to come in and defend and also from the judgment. Held, that the court had power in the exercise of its discretion to grant the order; that under the Code of Civil Procedure (§ 452) said defend, ants were properly made parties.</p> <p>The whole power of the court to relieve from judgments taken through “mistake, inadvertence, surprise or excusable neglect” is not limited by the provision of the Code of Civil Procedure (§ 724) authorizing this to be done “ at any time within one year after notice,” but in the exercise of its control over its judgments it may open them upon the application of anyone for sufficient reason in the furtherance of justice. This power does not depend upon any statute, but is inherent.</p>

This action was brought for a partition of the real estate of Hary Ann Hanley, who died intestate. David M. Koehler, the purchaser of the premises at the partition sale, moved at Special Term to be relieved from his purchase, on the ground that certain persons, who were non-resident aliens and heirs-at-law of said Mary Ann Hanley, should have been made parties defendant.

. Appeal from judgment of the General Term of the Supreme Court in the fourth judicial department, entered upon an order made July 1, 1887, which affirmed a judgment in favor of defendant entered upon the report of a referee.

Frothinhham Fish, presiding; entered upon a conviction of •defendant, Hugh O’Heil, .of arson in the third degree. The judgment of the Court of Oyer and Terminer was affirmed upon appeal, by the General Term of the Supreme Court, in the Fourth Department, July 17,1888. The indictment charged the defendant with setting fire to, and burning a building, structure and erection commonly called a carriage-shop, or manufactory.

The nature of the action and the facts, so far as material, are stated in the opinion. The action being one “ to recover real property or an interest in real property,” and the jury having rendered a verdict in favor of the plaintiffs, they are entitled to recover costs.

This action was brought to recover damages for alleged negligence causing the death of Henry Hunter, plaintiffs’ intestate. The material facts are stated in the opinion. The attempt of plaintiff’s intestate to get on the train while in motion, under the circumstances proven in this case, was an act of negligence which in fact contributed to the injury he received, and for this reason the plaintiffs were not entitled to recover.

Appeal by defendant Martha W. Wilkinson from an order of the General Term of the Supreme Court in the second judicial department, made the second Monday of February, 1888, which affirmed an order of Special Term denying a motion on the part of said defendant to vacate an order for the service of the summons herein upon her by publication. The complaint alleged, in substance, the recovery of a judgment by plaintiff against defendant Charlotte FI.

(Reported below, 48 Hun, 477.) The material facts are stated in the opinion. The adoption of the use of horses by the Third Avenue Company did not exhaust its power for the selection of a motor or prevent it from adopting a new motive power from time to time, always provided that such motor does not come within the exception. (McCartney v. C. & E. R. R. Co., 112 Ill. 611; 29 Am. and Eng. R. R. Cases, 326 ; H., etc., R. R. Co. v. Philadelphia, 89 Penn.

(The case is reported in 110 E. T. 336.) Section 190 of the Code of Civil Procedure does not give to this court the power to entertain appeals except from final judgments of the General Term, and the decision appealed from is interlocutory and not final. (86 N. Y. 162.) If the case were within the definition of appealable cases under section 190, the jurisdiction, nevertheless, fails on the ground that this court has no function or power to review questions of fact.

The parties to the action were the brothers and sisters and the descendants of brothers and sisters of Eobert Waite Armstrong, who acquired title to the premises in 1833, as devisee under the will of his father. The purchaser refused to complete his purchase on the ground that said devisee was not shown to he dead, or to have died intestate, or without a widow or issue surviving him. The material facts are stated in the opinion.

(Eeported helow, 49 Hun, 107.) The reference was of a claim presented by plaintiffs, as administrators of the estate of Gerhard Henry ICoop, deceased, against the estate of Horace D. Carlile, who, at his death, was the surviving partner of the firm of N. D. Carlile & Son.

fourth judicial department, entered upon an order made April 20, 1886, which affirmed a judgment in favor of plaintiff entered upon a verdict. (Reported below, 44 Hun, 312.) This action was brought by plaintiff, as survivor of the firm of C. Pardee & Co., upon four promissory notes made by the firm of Dodge & Moses, composed of defendants. Defendant Moses, who alone appeared and answered, among other things, alleged payment of the notes.

<p>Appeal from judgment of the General Term of the Superior Court of the city of Mew York, entered upon an order made June 29,1887, which affirmed a judgment in favor of plaintiff entered upon a verdict.</p> <p>The action was brought to recover damages for an accident-resulting in the death of the plaintiff’s decedent, alleged to have been caused by defendant’s negligence.</p> <p>The evidence on the part of the plaintiff tended to show the' following facts: The deceased, in company with his brother-in-law, left the saloon, kept by the latter on the south-west •corner of Thirty-fourth street and First avenue in the city of New York, about twelve o’clock at night on the 16th of January, 1886, and walked to a saloon kept by a friend, where they remained until between three and four o’clock. During nearly all the time they were in the latter place the deceased was asleep, and his companions were playing cards. Between three and four o’clock in the morning they left the saloon and took a train on the elevated road at Thirty-fourth street and went to the One Hundred and Sixteenth street station, where they arrived about half past five in the morning. Where they went and what they were doing between the time they left the saloon of their friend and the time they arrived at the Thirty-'.fourth street station does not very clearly appear. The night in question, as testified to by the friend of the deceased, was ■quite cold, and from before twelve until between three and four o’clock in the morning- it was snowing, or, in his language, “ it was sleet, not extra hard; it was a mixture of snow and hail; ” and to avoid the snow and hail they passed the time .in the saloon until the hour mentioned, which was Sunday m orning. It was quite dangerous walking along the sidewalks, the snow and hail making it very slippery, and it was freezing considerably. . The deceased and his companion got out at the One Hundred and Sixteenth street station and went down 'the stairs leading to the street. When on the third step from the bottom the deceased fell and sustained a fracture of the leg, called by the surgeon a “ Potts ” fracture. He was a large man, weighing about two hundred and twenty-five pounds, and, after the accident, was taken to the hospital, where he .remained until Wednesday morning. Delirium having, in the meantime,- set in, he was removed to Bellevue Hospital, where he died the same day. The surgeon in charge of the hospital where he was first taken stated that the delirium was, as he thought, what is known as traumatic delirium, which, he stated, is indistinguishable from delirium tremens, and there was evidence given on the part of defendant tending to show, ■.that the deceased, before the accident, had been drinking very freely, and that the delirium from which he died was delirium tremens.</p> <p>The brother-in-law of the deceased testified that the steps leading from the train to the street below were very slippery at the time of the accident, and that there was no evidence of any ashes or sawdust, or anything of that nature, having been spread upon them to prevent people from slipping, nor was there any evidence of any attempt at removing the. substance, whatever it was, which had accumulated upon the steps. Tlie steps were inclosed the height of a hand-rail, and from the hand-rail to the roof they were open. They were covered with a roof, which projected about a foot on each side of the stairway, and the hand-rail on each side could be easily grasped to aid in ascending or descending the stairs. At the end of all the evidence in the case there was a motion for a nonsuit, upon the ground, among others, that there was no evidence of negligence on the part of the defendant, which was denied, and counsel for the defendant excepted. The learned judge, in his charge to the jury, said, among other things, that in this case “ the legal-duty of the defendant was to use all human care, caution and skill to make their (passengers) ingress and egress from the station safe. They are not called upon by the law to guarantee perfect safety, but they are required to use all the skill, all the diligence, all the care that the most cautious human being would use if he were looking after the protection of his own life and health.” Upon exception, the latter part of the charge was modified by the court, by saying, “ a very cautious,” instead of the words, “ the most cautious ” human being would exercise. And as. modified, counsel for the defendant duly excepted to it. In speaking of the condition of the stairway or steps at the place of accident, the learned judge also said: “ If you come to the conclusion that they were slippery at that time, and that, means might have been taken to prevent them from being so, and that by reason of their slipperiness the plaintiff fell, as has been stated, then, gentlemen, so far as this issue goes, you will be justified in finding for the plaintiff; ” to which portian of the charge exception was duly taken by defendant’s counsel. In response to a request to charge, on the part of the defendant, the court again said: “ I hold, that in the case of the defendant, it is bound to use the utmost care in keeping its steps free from slipperiness, and free from danger on that account, as long as, and while it is carrying passengers, who, in their ingress and egress from the station are obliged •to use those steps, and that in the case now before the court there is no evidence of any instantaneous or recent cause of .slipperiness, which would render the charge as requested necessary.” An exception was, duly taken to the charge as given.</p> <p>In circumstances attended with only ordinary danger, carriers are required ■to use only ordinary care. ( Unger v. F. S., etc., R. R. Co., 51 N. Y. 497, 501; Hegeman v. W. R. R. Corp., 13 id. 9; Ingalls v. Bills, 9 Metc. 1; Deyo v. N. Y. C. R. Co., 34 N. Y. 9, 11; Caldwell v. N. J. S. Co., 47 id. 282, 288; Dongan v. C. T. Co., 56 id. 1, 7; Morris v. N. Y. C., etc., R. R. Co., 106 id. 678, 679; Kelly v. N. Y. & S. R. R. Co., 109 id. 44.) The use of. railway platforms and their approaches is attended only with ordinary dangers and Tequires only ordinary care. (Lafflin v. B. & S. R. R. Co., 106 N. Y. 136; Bateman v. N. Y. C., etc., R. R. Co., 14 N. Y. State Rep. 454; Morris v. N. Y. C. & H. R. R. R. Co., 106 N. Y. 678; Weston v. N. Y. E. R. R. Co., 73 id. 595; Kelly v. N. Y. & S. B. R. Co., 109 id. 44; Moreland v. B. & P. R. R. Co., 141 Mass. 31; Penn. Co. v. Marion, 104 Ind. 239, 242; P. F. W., etc., R. R. Co. v. Brigham, 29 Ohio St. 374; Thompson on Carriers -of Passengers, 104; Carpenter v. B. & A. R. R. Co., 97 N. Y. 494; Rorer on Railroads, 476; Beard v. C., etc., R. R. Co., 48 Vt. 101; McKone v. M. C. R. R. Co., 51 Mich. 601; S. L., etc., R. Co. v. Fairbairn, 4 S. W. R. 50; Moore v. W., etc. R. R. Co., 84 Mo. 481; Moses v. L., etc., R. Co., 2 State Rep. 567 Cross v. L. S., etc., R. R. Co., 37 N. W. Rep. 361; Benner man v. S. P., etc., R. R. Co., 32 Minn. 340; Foulkes v. M. R. Co., L. R., 4 C. P. D. 267; Longmore v. G. W. R. Co., 15 Eng. Com. L. 183.) In the actual transportation of passengers only the exercise of such care, diligence and skill as a highly intelligent and skillful man would deem adapted to guard against such dangers as human foresight could anticipate is required. (S. & R. on Negligence, § 266.) It was error to charge that if the steps were slippery, and if means might have been taken to prevent them from being so, the defendant was negligent. (Lafflin v. B. S. R. R. Co., 106 N. Y. 136 ; Loftus v. U. F. Co., 84 id. 455 ; Dongan, v. C. T. Co., 56 id. 1; Taylor v. City of Yonkers, 105 id. 202; Burke v. Wittherbee, 98 id. 562; C. S. L., etc., R. R. Co. v. Trotter, 61 Miss. 417; Story on Bailments, § 601.) o The duty of the defendant towards its passengers in respect to the means of egress from and ingress to its trains was to exercise ordinary care, to make them reasonably safe and adequate for the purposes for which they were employed. (Lafflin v. B. & S. R. R. Co., 106 N. Y. 136; Bateman v. N. Y. C. & H. R. R. R. Co., 14 N. Y. State Rep. 454; Taylor v. City of Yonkers, 105 N. Y. 202 ; Larkin v. O'Niel, 48 Hun, 591; Henkel v. Murr, 31 id. 28; Weston v. N. Y. E. R. R. Co., 73 N. Y. 595; Shepperd v. M. R. Co., 20 Week. Rep. 705; Evers v. H. R. B. Co., 18 Hun, 144; Landolt v. City of Norwich, 37 Conn. 615 ; Stanton v. City of Springfield, 12 Allen, 566 ; Billings v. City of Worcester, 102 Mass. 329; Todd v. City of Troy, 61 N. Y. 506; Evans v. City of Utica, 69 id. 166.) As the evidence did not warrant a verdict against the defendant, the proper course was to dismiss the complaint. (Steves v. O., etc., R. R. Co., 18 N. Y. 422; Wilds v. H. R. R. Co., 24 id. 430; Deyo v. N. Y. C. R. R. Co., 34 id. 9.) The learned trial judge erred in not charging the jury, at defendant’s request, that in order to make the defendant liable the slippery condition of the steps must have continued for such a length of time as to charge the defendant with notice of their condition. (Ca0rpenter v. B. & A. R. R. Co., 97 N. Y. 494; Morris v. N. Y. C., etc., R. R. Co., 106 id. 678; Kelly v. N. Y. & S. B. R. R. Co., 14 N. Y. S. R. 36; Shepperd v. M. R. R. Co., 20 Week. Rep. 705 ; Evers v. H. R. R. Co., 18 Hun, 144.) When an instruction is asked upon a supposed state of facts, the instruction should be given if the evidence is sufficient to support a finding of those facts by the jury. (Griel v. Marks, 51 Ala. 566; State v. Gibbons, 10 La. 117; C., etc., R. R. Co. v. Bingenheimer, 116 Ill. 226. Kendall v. Brown, 75 id. 232 ; P., etc., Ins. Co. v. Anapow, 45 id. 87; Flournoy v. Andrews, 5 Mo. 513.) In order to warrant a finding that negligence or an act not amounting to a wanton wrong is the proximate cause of an injury, it must appear that the injury was the natural and probable consequence of the negligence or wrongful act, and that it ought to have been foreseen in the light of the attending circumstances. (Scheffer v. R. R. Co., 105 U. S. 249; R. R. Co. v. Kellogg, 94 id. 469 ; Lowery v. W. U. T. Co., 60 N. Y. 198, 201; Rigley v. Hewitt, 5 Exch. 240; Loftus v. U. F. Co., 84 N. Y. 455; Carpenter v. B. & A. R. R. Co., 97 id. 494; Lilly v. N. Y. C. & H. R. R. R Co., 107 id. 566; Fent v. T., etc., R. R. Co., 59 Ill. 349 ; Hoag v. L. S., etc., R. R. Co., 85 Penn. St. 293 ; Derry v. Flitner, 118 Mass. 131; Atkinson v. G. T. Co., 60 Wis. 141; Seale v. G. C. & S. T. R. Co., 65 Tex. 274; D. L. & W. R. R. Co. v. Salmon, 39 N. J. L. 311; McDonald v. Snelling, 14 Ald. 290 ; Lewis v. F., etc., R. Co., 54 Mich. 55 ; Nelson v. C. M. & S. P. R. Co., 30 Minn. 74; Campbell v. City of Still-water, 32 id. 308; McGrew v. Stone, 53 Penn. St. 436 ; West Mahanoy v. Watson, 112 id. 574; Daniels v. Ballantine, 23 Ohio St. 532; Brown v. W, etc., R. Co., 20 Mo. App. 222; Lynch v. Knight, 9 H. of L. Cas. 577; Sharp v. Powell, L. R., 7 C. P. 253; Wharton on Neg. § 74; 2 Parsons on Cont. 456.)</p> <p>In an action to recover damages arising from negligence the court ought not to nonsuit the plaintiff where either the facts of the case or the inference from them is in any degree doubtful. (McGrath v. H. R. R. R. Co., 19 How. 211; Sheridan v. B. C. & N. R. R. Co., 36 N. Y. 39; Gonzales v. N. Y. & H. R. R. Co., 39 How. 407; Thompson v. Lumley, 50 id. 105 ; Heyne v. Blair, 62 N. Y. 23; Putnam v. B. & S. A. R. R. Co., 55 id. 112.) There was abundant evidence of defendant’s negligence in not sanding its steps when slippery; and there is evidence of the deceased’s freedom from negligence. (Putnam v. B. & S. A. R. R. Co., 55 N. Y. 112; Bills v. N. Y. C. R. R. Co., 84 id. 10; Willis v. L. I. R. R. Co., 34 id. 679.) The court is not bound to take the good part of the requests to charge from the bad parts. (Hamilton v. Eno, 81 N. Y. 127.) The jury having been properly instructed upon every question material to the disposition of the cause, the judge properly declined to make additional charges. (Moody v. Osgood, 54 N. Y. 488.) As the evidence showed the. storm had ceased some hours before the accident occurred, it was for the jury to determine whether the defendant had had ample time to discover the slippery condition of the steps and to provide against accidents. ( Wilcox S. P. Co. v. Green, 72 N. Y. 17; 9 Hun, 347.) The charge was correct that the defendant was bound to use all human care, caution and skill to provide safe ingress and egress, and to use all care and diligence that a very cautious human being would exercise. (Weston v. N. Y. El. R. R. Co., 42 J. & S. 156; 75 N. Y. 595; Hurlbert v. N. Y. C. R. R. Co., 40 id. 150, 151.) The jury were to determine whether or not the injury received through defendant’s negligence was the cause of death. (Kellogg v. M.& S.P. R. R. Co., 94 U. S. 469; Bills v. N. Y. C. R. R. Co. 84 N. Y. 10.) That portion of the charge is correct which states that, if the steps were slippery and means misrht have been taken to prevent them from being so, and that by reason of their slipperiness the plaintiff’s intestate fell, as has been stated, then, so far as that issue goes, the jury would be justified in finding for the plaintiff, (Brown v. N. Y. C. R. R. Co., 34 N. Y. 404; Brassell v. N. Y. C. & H. R. R. R. Co., 84 id. 241; Gaynor v. O. C., etc., R. R. co., 100 Mass. 208; 2 S. & R. on Neg. [éth ed.] § 10, note, § 507; Warren v. F. R. R. Co., 8 Allen, 227.)</p>

Appeal by defendant Chester Griswold, from judgment of the General Term of the Supreme Court in the third judicial department, entered upon an order made February 22, 1888, which affirmed a judgment in favor of plaintiff entered upon a verdict. This action was commenced in 1873.

This action was upon an accident policy of insurance. The material facts are stated in the opinion. The death of the deceased was caused by the inhaling of gas within the meaning of the policy. (36 Alb. Law Jour. 263 ; Jackson v. Lewis, 17 Johns. 475 ; People v. N. Y. C. R. R. Co., 13 N. Y. 78; Benton v. Wickwire, 54 id. 226; Dwight v. G. L. Ins.

(Reported below, 23 J. & S. 45.) This action was brought to recover $975, the agreed price for certain extra work done by plaintiff. The court found, in substance, these facts: In 1883 plaintiff entered into a contract with the department of public parks of the city of New York for the erection of a restaurant at Mount St. Vincent, Central Park.

The ease is reported upon a former appeal, sub nomine James v. Cowing (82 H. Y. 449.) This action was brought originally by Frederick P. James, the present plaintiff’s intestate to obtain an adjudication that the franchises and property of the West Side Elevated (Patented) Eailway Company (of Hew York city), heretofore acquired by the defendant The Hew York Elevated Eailway Company, are held in trust by the defendants for the benefit of plaintiff’s testator, and subject to…

The material facts are stated in the opinion. Where revocation of a probate is sought on the ground of fraud, the proper form of proceeding is by petition to vacate the former decree as having been obtained by fraud upon the party and imposition on the court.

<p><C., defendant’s intestate, with, others, subscribed a paper, by the terms of . which they, “in consideration of one dollar ” to each of them paid, and of the agreements of each other, severally promised and agreed to and with plaintiff's trustees, to pay to said trustees the sums severally subscribed, for the purpose of paying off a mortgage debt on the church edifice, on the condition that the whole sum should he subscribed or paid in within one year. In an action to recover a balance unpaid of the amount subscribed, it was shown that the one dollar was not, in fact, paid. There was no evidence that the corporation or its trustees, as its representatives, did or undertook to do anything upon the invitation or request of the subscribers, or otherwise than as individuals interested in promoting the general object in view, or that it incurred liability on the strength of the subscriptions upon request of the subscribers. Held, that plaintiff was not entitled to recover, as C.’s subscription was gratuitous and there was no valid consideration to uphold it; that the recital of a consideration paid did not preclude defendants from disputing the fact, nor did it give the promise any validity; that the mutual promise between the subscribers and the fact that the promise of each subscriber was had by reason of and in reliance upon similar promises of the others, did not constitute a consideration between plaintiff and the promisors, there being as to these promises, no privity of contract between them; that a request for the trustees of the church to do anything could not be implied from C.'s subscription; also, that the fact that they did, as individuals, interested in promoting the object in view, procure subscriptions, and that they applied moneys paid on subscriptions upon the mortgage debt did not constitute a consideration for C.’s promise.</p> <p>Barnes v. Petrine (12 IT. T 18) and Boben'ts v. Gobi (103 IT. T. 600) distinguished.</p>

Libbey, deceased, to Emma J. Mason, respondent, and denying them to John Libbey, appellant. (Reported below, 42 ÍJun, 470.) The material facts are stated in the opinion. The husband has the prior and better right to administer under the provisions of the Revised Statutes, and being a citizen of the United States, such right is not impaired by his residence in the state of Maine, notwithstanding section 2662 of the Code of Civil Procedure.

<p>Appeal from judgment of the General Term of the Superior Court of the city of Hew York in favor of plaintiff, entered upon an order made the first Monday of June, 1887, which overruled defendant’s exceptions and directed judgment upon a verdict.</p> <p>The action was brought to recover damages for alleged breach of contract.</p> <p>On the 23d of May, 1878, the defendant for a valid consideration made an agreement with the plaintiff’s decedent, of which the following is a copy:</p> <p>“A. 3099 Hew York, Ma/y 23, 1878.</p> <p>“ For value received, the bearer may deliver me, on one day’s notice, except last day, when notice is not required, five hundred (500) shares of the common stock of the Chicago and Northwestern Kailway Company at forty-nine (49) per cent, any time in thirty (30) days from date.</p> <p>“The undersigned is entitled to all dividends or extra dividends declared during the time.</p> <p>“ Expires 1.3-4 o’clock p. m.</p> <p>“RUSSELL SAGE.”</p> <p>On the 16th day of Hay, 1878, the board of directors of the above-named company, by resolution, declared a dividend on its capital stock of three per cent, both on the preferred and common stock, payable at the office of the company in New York on the 27th of June 1878, and the transfer books were to be closed for the purpose of the dividend on Tuesday, June 18th and re-opened on Saturday, June 29,1878. It was admitted, as a fact, upon the trial, subject to objection as to the materiality thereof, that the following rule was in force during the year 1878, upon the Stock Exchange in New York, viz.: “ On the day of the closing of the transfer books of any stock for a dividend, transactions in such stock for cash shall be ‘ dividend on ’ up to the time officially designated for the closing of the books; all transactions other than for cash shall be ‘ dividend off ’ after a quarter past two o’clock p. m., or after the closing of the books, should they close before that hour.” It was also admitted, subject to the same objection, that in conformity to the above rule and the resolution above-named declaring a dividend, the stock of the Chicago & Northwestern Railway was on June 18, 1878, quoted and dealt in upon the Stock Exchange, “ dividend off.”</p> <p>On the twenty-second day of June, before 1.30 p. m. of that day, the plaintiff’s decedent tendered five hundred shares of the common stock of the above-mentioned railway to the defendant, at his office in the city of New York, and demanded payment therefor at the rate of $49 per share. The defendant refused to give that amount, but offered to receive and pay for the stock at the rate of $46 per share, which the plaintiff’s decedent refused to take, and notified the defendant that he should hold him for the difference between forty-nine and the market-price, which was then forty-six.. The defendant based his refusal to pay more than forty-six upon his alleged right to receive the dividend of three per cent on the common stock of the railway, which had been declared on the sixteenth of May, and which was payable on the 27th of June, 1878. The agreement, or, as it is termed in this case, the “ put,” was purchased of the defendant at his private place of business in Hew York, by a broker on behalf of plaintiffs decedent, and such broker, so far as appears, was not a member of the Stock Exchange. There was no disputed question of fact in the casé,. and the trial judge ordered a verdict to be entered for the plaintiff for the difference between the price agreed to be paid ($49 per share) and the market-price of the stock on the day when the tender was made, June 22,1878, which price was $46 per share, together with interest thereon from the day of such tender.</p> <p>The refusal of the court to permit Mr. Osborn to state what directions Mr. Hopper gave him when he employed him to purchase the option, or whether he told him how much he should pay for it, and the price of the stock at which he should request Mr. Sage to pay for it was error. (Dana v. Fiedler, 12 N. Y. 46; Blossom v. Griffin, 13 id. 375; Bissell v. Campbell, 54 id. 358; Henniman, v. Rosenbeck, 39 id. 100; Tracey v. T. & B. R. R. Co., 38 id. 437; Watts v. Bailey, 49 id. 464.) The.court erred in excluding evidence of the dividend resolution and the Stock Exchange rule as to when the stock must be regarded as “ dividend off ” and when “ dividend on.” (M. P. Co. v. Moore, 104 N. Y. 680.) When a dividend is declared it belongs to the owner of the stock at the time, and a sale of the stock transfers by operation of law all dividends which form a constituent and inseparable portion of the stock when the contract was made. (Boardman v. L. S. & M. S. R. Co., 84 N. Y. 176.) The court erred in not permitting proof that the stock on the day of the contract could have been bought at a much less price than Sage agreed to pay for it, provided that’ the theory of the respondent be correct. (Booth v. C. M. Co., 74 N. Y. 21; Dwight v. G. R. L. Ins. Co., 103 id. 341.)</p> <p>A dividend, declared at the time of a sale of stock, or of a contract for its sale, although not payable until afterwards, does not pass to the purchaser. (Spear v. Hart, 3 Robt. 420 ; Hill v. N. Co., 8 Hun, 459 ; 71 N. Y. 593 ; Jermain v. L. S. & M. S. R. R. Co., 91 id. 483-492 ; Hopper v. Sage, 47 Supr Ct. 77 ; Bright v. Lord, 19 Am. Rep. 732 ; Higgins v. Moore, 34 N. Y. 422 ; Lawrence v. Maxwell, 53 id. 21; S. Bk. v. N. Bk.; 67 id. 463 ; Bargett v. O. M. Ins. Co., 3 Bosw. 396 ; Markham v. Jaudon, 41 N. Y. 245; Genet v. D. &. H. C. Co., 56 N. Y. Supr. Ct. 30, 35.) The word “ dividend ” and the word “ declared ” used in connection with it have a settled legal meaning; no two meanings can be placed on the phrase, and its construction is not open to paroi evidence. (Henniman v. Rosenbach, 39 N. Y. 98.) To permit evidence to show a custom or usage among dealers in this class of contracts as to what dividends are meant by this clause, “ the undersigned is entitled to all dividends or extra dividends declared during the time,” would be to add to the contract, and cause something more to pass than passes by the terms of the contract and the law applicable thereto. (Spear v. Hart, 3 Robt. 420.) There was no error in the exclusion of the rules and regulations of the Stock Exchange. (Hill v. Newschaurick, 8 Hun, 459.)</p>

This action was upon a promissory note alleged to have been made by George W. Law, defendant’s testator. The note was dated April 27, 1874, for the sum of $1,100, payable to S. C. Emory or bearer ten years from date, with interest. The note was transferred by Emory to one Sayles and by him transferred to plaintiff. The facts, so far as material, are stated in the opinion.

(Reported below, 48 Hun, 70.) The material facts are stated in the opinion. If Church has made no election as to the application of this money, it results only ’ that the creditor to whom the security is given may elect as to the order in which the proceeds may be applied upon the several obligations jointly secured.

(Reported below, 48 Hun, 172.) The nature of the action and the facts are sufficiently stated in the opinion. The three-years limitation is a good defense to an action to recover damages for a negligent injury to the person of a plaintiff or to the person of his wife, servant or minor child.

The material facts are stated in the opinion. The method adopted by the commissioners was in accordance with the law. (Laws of 1857, chap. 456, § 3; People v. Asten, 100 N. Y. 597-602; People ex rel. K. F. Ins. Co. v. Comrs., 107 id. 543.) The relator was not entitled to a reduction of its unearned premiums. (People v. Ferguson, 38 N. Y. 89, 92; People ex rel. M. F. Ins. Co. v. Comrs., 76 id. 64; People ex rel. W. F. Ins.

The facts are sufficiently stated in the opinion. The court will set aside a sale, and order a resale where it is shown that there has been a mistake or misunderstanding as to the terms or conditions upon which the premises were sold, or where different terms are sought to be enforced than those under which the premises were sold.

(Reported below, 49 Hun, 245.) The facts, so far as material, are stated in the opinion. The notes were not “ commercial paper ” while still in the plaintiffs’ hands, nor subject to rules sui generis incidental to commercial paper, and are to be read with the agreement and construed as a part of the contract between the parties. (1 Am. L. C. 383; Overton v. Tyler, 3 Penn.

Appeal, on the part of certain property owners, from order of the General Term of the Supreme Court in the fourth judicial department, made April 7,1888, confirming an order appointing commissioners under the act, chapter 252, Laws of 1884, to determine whether the petitioner’s road ought to be constructed. The material facts are stated in the opinion.

<p>The Board of Supervisors of Queens County, by ordinance, directed the improvement of that part of Jackson avenue within the limits of the town of Newtown, in said county, in a certain manner and at an expense specified, the expense to be assessed in certain proportions upon said town and the towns of Flushing and North Hempstead, and the portion of the avenue so improved to be thereafter maintained and kept in order by those towns. The avenue in question was an existing highway passing through said towns. In proceedings by certiorari, instituted by a taxpayer of the town of North Hempstead, held, that the Board of Supervisors had power to pass the ordinance.</p> <p>Under the act of 1869 (Chap. 855, Laws 1869) “to extend the powers of boards of supervisors, except in the counties of New York and Kings," which empowers such a board, with the consent of town officers, to authorize the supervisor of any town to borrow money on the credit of the town, “ to build or repair any road or roads, bridge or bridges, in such town, or which shall be partly in such town and partly in an adjoining town,” and to prescribe the form of obligation to be given for the loan, and to impose a tax on the town to pay the sum borrowed (§ 1), and authorizes the board “to provide for the use of abandoned turnpike, plank or macadamized roads, within any town, as public highways, and for the improvement of any public highway laid out in pursuance of law, and for the location, erection, repair or purchase of any bridge, except over navigable streams, and for apportioning the expense of any road or bridge upon such towns as maybe just, and for the borrowing of money by any town or towns, or by the county, for the purposes aforesaid,” (§ 2), a board of supervisors may, on its own motion, under the specified restrictions, provide for these public interests and apportion the expenses upon one or more towns, “ as may be just,” although the expenditure may be wholly within one town,, but on a highway which is -common to the several towns.</p> <p>It seems that, so far as practicable, matters specially affecting the public interests of a particular locality should be controlled by the local government, subject to such general regulations as may be necessary for the common good. The legislature, however, unless restrained hy constitutional limitations, may resume powers delegated to towns, cities and counties, and assume the direct control of matters pertaining to local government.</p> <p>While the effect of the provision of the State Constitution (§ 18, art. 3), prohibiting the legislature from passing any local or private bill "laying-out, opening,"altering, working or discontinuing roads or highways,” was to take away the power it theretofore possessed to legislate in such matters, independent of the local authorities, the provision (§ 23, art. 3) authorizing it to enact general laws conferring upon boards of supervisors “ such further power of local legislation as, from time to time, it may deem expedient,” preserved the power to vest in hoards of supervisors within their respective jurisdictions the same powers in respect to laying out, opening and working highways which it could no longer directly exercise. The provisions do not abrogate the pre-existing power, hut simply transfer it to the local boards, in case the legislature shall so enact.</p>

The nature of the appeal and the material facts are as-follows. This is an appeal from an order of the General Term, m the second judicial department, made September 18, 1888, which affirmed an order of the Special Term denying plaintiff’s motion for a resettlement of the case herein. The plaintiff was beaten upon the trial of the action, and made a proposed case.

determination of the commissioners of the land office directing the issuing .to the Bartholomay Brewing Company of Rochester, BT. Y., of letters-patent for certain land under water, which determination was brought up for review by certiorari. The material facts are stated in the opinion. The order of the General Term, reversing the resolution of the commissioners of the land office, and denying the application of the Bartholomay Brewing Company, is appealable to this court.

June 23, 1887, which affirmed a judgment in favor of defendant, entered upon a decision of the court at Special Term. This action was brought to determine who was entitled to an award of damages to a lot in the city of Rew York, caused by the closing of Bioomingdale road. It was originally brought against the city and others.

<p>Appeal from judgment of the General Term of the Supreme Court in the first judicial department, entered upon an order made May 13, 1887, which affirmed a judgment in favor of plaintiff, entered upon a verdict. (Reported below, 39 Hun, 639.)</p> <p>The nature of the action and the facts are sufficiently stated in the opinion.</p> <p>The superintendent’s acts were done in the range of the common employment, for which defendant is not liable. (McCosker v. L. I. R. R. Co., 84 N. Y. 77; Laughlin v. State N. Y., 105 id. 159; Neubauer v. N. Y., L. E. & W. R. R. Co., 101 id. 607; Crispin v. Babbitt, 81 id. 561.) Defendant furnished sufficient, skillful and competent fellow-workmen, and the injuries to plaintiff’s intestate were due to the negligence of a co-servant, for which the defendant is not liable. (Neubauer v. N. Y., L. E. & W. R. R. Co., 101 N. Y. 607; Crispin v. Babbitt, 81 id. 516.)</p> <p>The relations of Gray to the defendant were of such a character that the defendant ' should be held responsible for his negligence. (Pantzar v. Tilly Foster Mining Co., 99 N. Y., 373; Corcoran v. Holbrook, 59 id. 517.) The omission of Gray to provide enough men to remove the hatch was an omission of the defendant, for which he is responsible. (Flike v. B. & A. R. R. Co., 53 N. Y. 549; Booth v. B. & A. R. R. Co., 73 id. 38; Reiner v. Heuvelman, 8 Week. Dig. 17; Slater v. Jewett, 85 N. Y. 72, 73; Sheehan v. N. Y. C. & H. R. R. R. Co., 91 id. 333, 334, 335.) The omission of Gray to give warning^ or cause it to be given, was an omission of the defendant, for which he is responsible. (Sheehan v. N. Y. C. & H. R. R. R. Co., 91. N. Y. 332, 335; Corcoran v. Holbrook, 59 id. 517, 520; Dana v. N. Y. C. & H. R. R. R. Co., 92 id. 639.)</p>

<p>Although, under the Code of Civil Procedure (§ 8017), upon the docketing of a justice’s judgment in the county clerk’s office, it becomes a statutory judgment of the County Court, it is not a judgment “rendered” in that court, but remains “a judgment rendered in a court not of record,” within the meaning of the provision of said Code (§ 383), declaring that an action upon such a judgment must be commenced within six years after a “final judgment was rendered.”</p> <p>An action to compel a set-off of such a judgment against a judgment of a court of record is an action upon the judgment, within the meaning of said provision, and so is not maintainable after the lapse of six years from the time it was rendered.</p>

The plaintiff brought this action as administratrix of William Bishop, deceased, to recover from the defendant $2,000 and interest from the 9th day of June, 1886, as the amount to which she was entitled by reason of the membership of the deceased in the corporation defendant at the time of his death.

This action was brought by plaintiffs, who were members of the firm of Cox & Rockwell, engaged in the coal business, to recover from defendants, who were alleged to be members of the firm of Pearce & Hall, the price of a cargo of coal sold to said firm, through one George Marriott, on May 31, 1884. The defendant Hosea 0. Pearce died after the suit was commenced, and his executors were substituted in his place.

(Reported below, 44 Hun, 304.) The nature of the action and the facts are sufficiently stated in the opinion. The question of defendant’s negligence was an issue to be decided upon the facts as they then existed, unprejudiced by what may have been done at other times.

<p>Appeal from judgment of the General Term of the Supreme Court in the second judicial department, entered upon an order made July 1, 1887, which affirmed a judgment in favor of defendant, entered upon a decision of the court on trial without a jury.</p> <p>The nature of‘the action and the facts are sufficiently stated in the opinion.</p> <p>The tax of 1869, for the non-payment of which the real estate in question was sold by the comptroller of the state to the defendant, having been assessed to the resident owner of said real estate, and not having been re-assessed the following year as upon non-resident’s land, could not legally he sold by the comptroller. (Law;s of 1855, chap. 427, § 5.) The presumption is that the legislature intends to except from the operation of a general act the persons, localities or things subject to the special act. (People v. Jaehne, 103 N. Y. 194.) The ruling of the comptroller’s office, as to the invalidity of the sale in question, is entitled to great weight by this court, since it is made the duty of the comptroller to set the sale aside if in his opinion it was invalid. (Laws 1855, chap. 427, § 85; People v. Chapin, 103 N. Y. 365.)</p> <p>The assessment was complete on the first Monday of July, 1869; and after that the assessors had no power to change the assessment or the name of the person assessed. (1 R. S. 139, §§ 1, 8; 2 id. [7th ed.] 989, §§ 1, 8; Mygatt v. Washburn, 15 N. Y. 316, 319; Clark v. Norton, 49 id. 243; Overing v. Foote, 65 id. 265, 270.) The proceedings of the collector and county treasurer, in the case of taxes assessed on lands in the towns of Kings county are governed by a special law which takes these lands out of the scope of the general laws. (Laws of 1841, chap. 154, § 6; 1 R. S. [6th ed.] 989, § 9.) There was absolutely no remedy against resident lands to sell them for nonpayment of taxes, however long the accumulations should continue. (1 R. S. [1st ed.] 403, §§ 26, 27; Id. [2d ed.] 392, §§ 26, 27; Id. [3d ed. 1846] 457, §§ 36, 37; Newman v. Suprs. Livingston Co., 45 N. Y. 676, 780; Ritters v. Worth, 58 id. 627.) A special and local statute _ providing for a particular case or class of cases is not repealed by a subsequent statute, general in its terms, provisions and application, unless the intent to repeal or alter is manifest, although the terms of the general act are broad enough to include the cases embraced in the special law; and a statute is not to be deemed repealed by implication by a subsequent act on the same subject, unless the two are manifestly inconsistent with and repugnant to each other, or unless a clear intention is disclosed on the face of the latter statute to repeal the former one. (People v. Quigg, 59 N. Y. 88; Dillon on Mum Corp. [3d ed.] § 87; Village of Deposit v. Vail, 5 Hun, 310; McKenna v. Edmonstone, 91 N. Y. 233; Vandenburgh v. Greenbush, 66 id. 1; Matter of Commissioners, 50 id. 493-497; Burrows v. Brinkerhoff, 68 id. 259; People ex rel. Woods v. Crissey, 91 id. 616; In re Bayard, 25 Hun, 546; Ross v. Wigg, 36 id. 107; Isaacs v. Isaacs, 10 Daly, 306; Whipple v. Christian, 80 N. Y. 523; People ex rel. Van Heck v. Catholic Protectory, 38 Hun, 127; S. C., 101 N. Y. 195.) Paintiffs could not redeem, as owners, after two years from the sale. (§ 50, chap. 427, Laws 1855.) Conceding that the plaintiffs have a standing in this action as mortgagees, their right to redeem as mortgagees became extinct after two years from the time of the sale, they not having proved the filing by them, in the office of the comptroller, of the notice required by law. (Potter’s Dwar. on Stat. 159 ; 2 R. S. [7th ed.] 1032, § 82; Sedg. on Statutory Laws, 137; Wheeler v. Roberts, 7 Cow. 536; French v. McDowall, Id. 537; Hastings v. Aiken, 1 Gray, 165; Vanderburgh v. Greenbush, 66 N. Y. 1, 4.)</p>

<p>Appeal from order of the General Term of the Supreme Court in the first judicial department, made June 19, 1888, which reversed an order of Special Term denying a motion to vacate an attachment, "and vacated and set aside the attachment.</p>

<p>Appeal from order of the General Term of the Superior Court of Buffalo, made June 23,1888, which affirmed an order of Special Term vacating an order vacating an attachment.</p>