Volume 114 — New York Reports

The nature of the action and the facts are sufficiently stated in the opinion. The counter-claim of the defendant cannot be sustained as either a counter-claim or set-off against the assigned estate, as it was not a debt at the time of the assignment. (In re Adams, 15 Abb. N. C. 61; Frick v. White, 57 N. Y. 103.) The claim is a claim in favor ■ of plaintiff as an individual and not as representing the .assigned estate.

<p>Appeal from judgment of the General Term- of-the Supreme Court in the first judicial department,, entered upon an order made June 18, 1887, which affirmed a judgment in favor of plaintiff, entered on a verdict directed by the court.</p> <p>The nature of the action and the f aets'arp sufficiently stated in the opinion.</p> <p>The several transactions having been resolved into a single one, the judgment in action No. 1 is a bar to this action. (Secor v. Sturgis, 16 N. Y. 548; Baird v. United States 96 U. S. 430; Jex v. Jacob, 19 Hun, 105.) A court or ref efee-6anoonlyj render a decision- that will-be binding or effective toithe,’e'x-teht- Only that if is within the-issues. (Remington Paper Co. v. O'Dougherty 81 N. Y. 474.) If plaintiff'6Sw fit ttfaccept thé'Taotes-Without security,, it thereby waived" the requirement of the contract in-that regard.(Smith v. Lynes, 5 N. Y. 44.) While, for the purpose of arriving at the intention of the parties, the law permits evidence to be adduced showing the facts attendant upon and circumstances under which a contract in writing is executed, it rigidly excludes, except in cases of latent ambiguity, the conversations which led up to it. (Reynolds v. Commerce Fire Ins. Co., 47 N. Y. 606; Blossom v. Griffin, 13 id. 573; La Farge v. Reckert, 5 Wend. 187; P. S. B. Co. v. U. P. S. B. Co., 109 U. S. 672; Gavinzel v. Crump, 22 Wall. 308; Emerson v. Slater, 22 How. 28; Oelricks v. Ford, 23 id. 49; 2 Parsons on Contracts, 77, note z.)</p> <p>The contract set forth in the complaint has never been abrogated or merged into a new contract. (Zimmerman v. Erhard, 83 N. Y. 74, 78; Millard v. M., K. & T. R. R. Co., 86 id. 441; 2 Jones on Mort. § 934; Jagger Iron Works v. Walker, 76 N. Y. 521; Nat. Bk. v. Morgan, 6 Hun, 346; 2 Danl. Neg. Instr. § 1260; 1 id. § 206; Boxheimer v. Gunn, 24 Mich. 372; Nightingdle v. Chaffee, 11 R. I. 600; McGuire v. Gadsby, 3 Cal. 234; Hill v. Beebe, 13 N. Y. 556; Eldredge v. Strenz, 2 J. & S. 491 [499].) The judgment-roll in action Ho. 1 is conclusive against appellant’s contention that the former recovery was upon the same cause of action now sued on. (Campbell v. Butts, 3 N. Y. 173; Stowell v. Chamberlain, 60 id. 272; 2 Herman on Estop. and Res Adjudicata, § 1271; Griffin v. L. I. R. R. Co., 102 N. Y. 449, 452; Pray v. Hegeman, 98 id. 351, 358; Castle v. Noyes, 14 id. 329; H. F. S. Assn. v. Mayor, etc., 3 How. Pr. 448.) The title to the printing presses in question has never passed out of the plaintiff. (Porshall v. Eggert, 54 N. Y. 18; Coyne v. Weaver, 84 id. 386, 390.) Where a word may apply equally to any one of .several things, the- sense in which both parties used the word may be shown by paroi. (1 Greenl. on Ev. § 295a, note 1; Thorington v. Smith, 8 Wall. 1, 12 ; Gray v. Harper, 1 Story, 574; Almgren v. Dutilh, 5 N. Y. 28; M. P. Co. v. Moore, 104 id, 680.) To take a.case to the jury there must be evidence upon which a jury can properly proceed to find a verdict for the party producing it. (Dwight v. G. L. Ins. Co., 103 N. Y. 341, 359.)</p>

Cross-appeals from judgment of the General Term of the Supreme Court in the first judicial department, entered upon an order made May 13, 1887, which reversed so much of a judgment entered upon a decision of the court on trial at Special Term as adjudged that defendant was entitled to the amount of various deposits with the American Loan and Trust Company of rent paid in under leases of portions of the premises described in the complaint, which deposits were made pursuant to…

The relator must make out a case as a plaintiff would and show himself free from imputation of want of care, and that he took every step which a reasonable man should take before he can ask the aid of the court against the negligence of the respondent. (People ex rel. Post v. Ransom, 2 N. Y. 492; People ex rel. Mygatt v. Suprs., 11 id. 563-574; People ex rel. Martin v. Brown, 55 id. 180, 191; Com.

The nature of the action and the material facts are stated in the opinion. The order of discharge served upon the sheriff was regular on its face, contained recitals of all the necessary facts to give jurisdiction to the court granting it, and of itself, protects the sheriff in discharging the prisoner, whether jurisdiction actually existed or not.

the court on trial without a jury. On the 7th of July, 1885, the First National Bank of Wallingford, Connecticut, drew on the plaintiff a draft in the usual form, for the sum of $8, payable to the order of one Frank Saxton, and delivered the same to him.

<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 an order overruling a demurrer to the .complaint and directing the entry of an interlocutory judgment in favor of plaintiff, and the interlocutory judgment entered upon said order.</p> <p>The nature of the action and facts are sufficiently stated in the opinion.</p> <p>The court had jurisdiction of defendant’s person. (Code Civil Pro. §§ 1638, 1686 ; tit. 2, chap. 5, 3 E. S. §§ 1, 3; tit. 7, § 12; tit. 2, chap. 8, §§ 1, 3; art. 2, tit. 3, chap. 8, part 3, E. S. § 43.) Where the provisions of two statutes are manifestly repugnant, the earlier enactment will be modified or repealed by the later one. (Thompson v. Thompson, 55 How. 494.) Passing a law inconsistent with some provision of a pre-existing statute is an implied repeal of the first, so far as those provisions are incompatible with each other. (Burdick v. Phillips, 17 Week. Dig. 440.)</p> <p>The bringing, of an action to determine claims to real property against an.infant is prohibited. (Code of Civil Pro. §§ 1686, 3355 ; Potter’s Dwarris on Statutes, 194, 197, 202 [ed. 1871] .) The court will not favor the repeal of statutes by implication, even when it is a question of an earlier and a later enactment. (9 Barb. 260.) And when both the latter and former statutes can stand together both will stand, unless the former is expressly repealed or the legislative intent to repeal it is very manifest. (Dwarris, 197; People ex rel. Kingsland v. Palmer, 52 N. Y. 83; Hawkins v. Mayor, etc., 64 id. 188.)</p>

<p>Appeal from judgment of the General Term of the Supreme Court in the first judicial department, entered upon an order made May 14, 1887, which affirmed a judgment in favor of defendant, entered upon a verdict directed by the court.</p> <p>This was an action of replevin.</p> <p>The material facts are stated in the opinion.</p> <p>Where property is to be paid for on delivery the title remains in the vendor until either the payment is made or waived. (Hammett v. Linnemann, 48 N. Y. 399, 405; Parke v. Baxter, 86 id. 586; Leven v. Smith, 1 Denio, 571; Russel v. Minor, 22 Wend. 659; Osborne s. Gantz, 60 N. Y. 540; Dows v. Kidder, 84 id. 121, 127; Mason v. Decker, 72 id. 595, 599; Whitney v. Eaton, 15 Gray, 225; Adams v. O’Connor, 100 Mass. 515; Farlow v. Ellis, 15 Gray, 229; Benjamin on Sales [4th Am. ed.] §§ 336-350; Thorp v. Fowler, 57 Iowa, 541.) The contract itself, as testified to, and by necessary implication, contained an agreement that the title was not to pass until payment was made in the manner agreed upon. (Stow v. Tifft, 15 Johns. 458.) There was no waiver in the present instance. (Hare on Contracts, 449; Mount v. Lyon, 49 N. Y. 552; Owens v. Weedman, 82 Ill. 409; Henderson v. Lanek, 9 Hains, 359; Paul v. Read, 52 N. H. 136.) The fact that the vendee had paid $250 while the delivery was in progress does not affect the title. (Fickett v. Brice, 22 How. Pr. 194; Frey v. Johnson, Id. 316; Hoyt v. Hall, 3 Bosw. 44; Champlin v. Rowley, 13 Wend. 258; 18 id. 187; Mead v. De Golyer, 16 id. 632; Paige v. Ott, 5 Denio, 406; McKnight v. Dunlop, 4 Barb. 36; Mount s. Lyon, 49 N. Y. 552.) Plaintiff was not under any obligation to offer to return this money. (Herring v. Hoppock, 15 N. Y. 409, 411, 412; Campbell P. P. Co. v. Walker, 43 Hun, 449; Humeston s. Cherry, 23 id. 141; Haviland v. Johnson, 7 Daly, 297; Angier v. Taunton Paper Co., 1 Gray, 621; Sergeant v. Metcalf, 5 id. 506; Colcord v. McDonald, 128 Mass. 470; Carter v. Kingham, 103 id. 513; Knox v. Perkins, 15 Gray, 529; Hart v. Carpenter, 24 Conn. 427; Brown v. Haynes, 52 Maine, 578; Everett v. Hall, 67 id. 497; Duke v. Shackelford, 56 Miss. 552; Fleck v. Warner, 25 Kan. 492; Latham v. Sumner, 89 Ill. 233; Singer Mfg. Co. v. Treadway, 4 Brad. 57; Monroe v. Reynolds, 47 Barb. 574, 579; Ketcham v. Evertson, 13 Johns. 359; Ellis v. Horkens, 14 id. 363; Simon v. Kaleske, 6 Abb. [N. S.] 224.) A creditor gets no better title than his debtor. (Corner v. Cunningham, 77 N. Y. 391.)</p> <p>The proof adduced by the plaintiff showed that the title to the property and also the right of possession was in Tremelling, and, therefore, the levy of the sheriff was lawful, and the plaintiff could not maintain a replevin suit. (Sharp v. Whitherhall, 3 Hill, 576; Wood v. Orser, 25 N. Y. 348.) If a chattel mortgage had been given by Tremelling the sheriff would still have been bound to levy upon the property. (Carpenter v. Town, Lalor, 72; Redman v. Hendricks, 1 Sandf. 32.; Goulet v. Asseler, 22 N. Y. 225.) The direction of the court to the jury to fix the value of the goods at the amount stated in plaintiff’s affidavit and in the complaint was proper. (Campbell v. Woodworth, 20 N. Y. 499; Remsen v. Buck, 34 id. 383; McCurdy v. Brown, 1 Duer, 101; Tiedmam, v. O’Brien, 4 J. & S. 539.) The judgment of the court as rendered was the only judgment that could legally be given. (Townsend v. Bargy, 57 N. Y. 665; Allen v. Judson, 71 id. 77; Parish v. Wheeler, 22 id. 494.)</p>

This action was brought to recover damages for injiiries alleged to have been caused by defendant’s negligence. The facts, so far as material, are stated in the opinion.

<p>In an action to recover possession of certain goods alleged to have been purchased by M., defendants’ assignor, of plaintiffs by means of false and fraudulent representations and with the intent not to pay therefor, plaintiff gave evidence tending to show the making of the false representations charged and that the sale was induced thereby. 31., as a witness for defendant, testified that he had never made any such representations. Upon cross-examination he was asked if he had not made representations, similar to those charged, to other persons named, of whom he had purchased goods at about the same time as the purchase in question; this he denied. Held, that it was competent for plaintiff to prove by the persons named that M. did make such representations to them at the time of the purchases, and that the exclusion of the testimony was error; that the testimony was not only competent as evidence in chief, but was admissible for the purpose of contradicting 3I.’s testimony and impeaching his credibility, and it was not discretionary with the court to exclude it.</p> <p>A party has the right to impeach or discredit the testimony of his opponent; such evidence is always competent. He may also contradict a witness against him as to any matters upon which the witness has given evidence in chief, provided it is not collateral to the issue.</p> <p>If the testimony sought to be contradicted has reference to statements made to others, the attention of the witness should first be called to the time, place and person to whom the statement is claimed to have been made, and if denied, such person may then be called to contradict him.</p>

This action was brought by the dairy commissioner under the act (Chap. 183, Laws of 1885, § 19), to recover the penalty there fixed for alleged violations of sections 7 and 8 of the act. The material facts are stated in the opinion. In an action for a penalty, by the state, under a criminal statute, the evidence for the People must establish the violation beyond reasonable doubt.

first judicial department, made March 2, 1888, which affirmed an order of the Board of Fire Commissioners of the city of Mew York transferring the relator from duty as chief of battalion to duty as foreman in said fire department. The facts are sufficiently stated in the opinion.

This action was brought to recover the amount of a draft. The material facts are stated in the opinion. The question on the trial having been treated as a question of law by' the parties and by the court, and the defendant not having claimed that the question was one of fact, and not having raised it, it could not have been raised by any request defendant made or by'any exception to the charge that defendant took.

Appeal by defendant from • a judgment of the General Term of the Supreme Goiirt in the first judicial department,, entered upon an order made April 3, 1888, directing judgment in favor of plaintiff,' on a submission of a controversy without action on agreed facts.

<p>In pursuance of ordinances duly passed by defendant’s common council, establishing the grade of one of its streets, which was cut along the side of a hill, and directing the manner of construction, a dry wall was laid to carry the street up to grade in front of the premises of E., plaintiff’s intestate, which were on the lower side of the street. By such ordinances the owner of abutting property was given the privilege of constructing a wall of masonry, but E. refused to avail herself of this permission or to pay for cement in which to lay the wall. Subsequently water came down the gutter on thedower side of the. street and passed through the gutter and wall onto said premises, causing damage. In an action to recover therefor," it did not appear that said premises were subjected to any further burden in reference to surface-water than they were required to hear when in their natural state, held, that defendant was not liable; that in establishing the grade and adopting plans for the improvement of the street the common council acted judicially, and in the exercise of the discretionary power vested in it, and for such acts an action would not lie; also, that the action could not he sustained upon the theory of negligent or unskillful construction of the wall.</p> <p>The ordinances required the sidewalks, curbs and gutters to he constructed by the abutting owners or occupants. E. constructed the gutter in front of her premises, using cobble-stones, instead of flat stone, as contemplated by the ordinance, and the water flowed through between the cobblestones and thence through the wall. Held, that, in the absence of proof establishing that defendant’s officers or' agents had interfered with the gutter after it was laid, E., not the defendant, was responsible for the improper construction of the gutter.</p> <p>Reported below, 43 Hun, 367.</p>

The nature of the action and the facts, so far as material, are stated in the opinion. The defect of parties is fatal to the judgment, and the objection is one in which the court itself is bound to take.' (Sturtevant v. Brewer, 17 How. Pr. 571; Shaver v. Brainard, 29 Barb. 25; Osterhout v. Supervisors, 98 N. Y. 239, 242, 243, 244.) It was necessary for plaintiff to show that he needed the intervention of a court of equity for his protection.

<p>Appeal from judgment of the General Term of the Supreme Court in the second judicial department, entered upon an order made May 9, 1881, which affirmed a judgment in favor of plaintiff, entered upon a verdict.</p> <p>The nature of the action and the material facts are stated in the opinion.</p> <p>Plaintiff was chargeable with some degree of care and prudence, and with some degree of negligence. (Wendell v. N. Y. C. & H. R. R. R. Co., 91 N. Y. 420; Clark v. E. A. R. R. Co., 36 id. 135.) The fact that he was doing an act prohibited by the statute (Chap. 585, Laws of 1880), was evidence of negligence on his part which he was bound to overcome. (Knupfle v. Knick. Ice Co., 84 N. Y. 488.) As the plaintiff failed to rebut the presumption of negligence raised by the testimony against him, the complaint should have been dismissed. (Wendell v. N. Y. C. & H. R. R. R. Co., 91 N. Y. 420; Solomon v. C. P. R. R. Co., 1 Sweeney, 298; Motel v. S. A. R. R. Co., 2 How. Pr. 30.)</p> <p>Even if the plaintiff had been, as a matter of fact, violating the statute at the time he was injured, that of itself would not operate to deprive him of any right of action against defendant. (Packalinsky v. N. Y. C. & H. R. R. R. Co., 82 N. Y. 424; Connelly v. N. Y. C. & H. R. R. R. Co., 88 id. 346; Wohlfahrt v. Beckert, 92 id. 490; Platz v. City of Cohoes, 89 id. 220; Carroll v. S. I. R. R. Co., 58 id. 126; Eppendorf v. B. C. & N. R. R. Co., 69 id. 195; Spooner v. B. C. R. R. Co., 54 id. 230.) At most, the statute was competent only as evidence to be submitted to the jury on the question of negligence. (Rochester v. Montgomery, 72 N. Y. 65.) A person driving a team and vehicle on the track of a horse railroad is bound to exercise greater care in keeping out of the way of cars than is required of one driving along a common highway or street in avoiding ordinary vehicles; he owes a greater duty and his right is smaller. (Adolph v. C. P., N. & E. R. R. R. Co., 16 N. Y. 530, 537.)</p>

This was an action to admeasure dower. The plaintiff, in her complaint, alleges “ that she is the widow of Joseph Gall, deceased.” The denial of this allegation by the defendants, Charles F. Gall and others, raised the only material issue of fact in the action. The facts, so far as material, are stated in the opinion.

The nature of the action and the material facts are stated in the opinion. The county judge acquired no jurisdiction to render the judgment put in evidence, because the petition did not contain the necessary jurisdictional averments. (Laws 1869, chap. 907; People v. Smith, 45 N. Y. 783-784; Merritt v. Village of Port Chester, 71 id. 312; Shattuck v. Bascom, 76 id. 39; People ex rel. Rogers v. Spencer, 55 id. 1; People ex rel.

The nature of the action and the material facts are stated in the opinion.

Appeal by the defendant, the city of Yonkers, from a judgment of the General Term of the Supreme Court in the second judicial department, entered upon an order made May 10,1887, which affirmed a judgment in favor of plaintiff entered upon (decision of the court on trial at Special Term.

<p>While one or more members of a copartnership cannot execute a general assignment for the benefit of creditors, with or without preferences, without the consent of all, if it appears by the acts or declarations, before or after the assignment of the member or members who did not sign, that he or they assented to making it, or that it was made by his or their authority, it is valid.</p> <p>Defendants D. and G. were copartners; the firm being in straitened circumstances G. started for Australia, with a view of making sales of goods there in sufficient amounts to relieve it from its embarrassment, leaving D. in charge of the business. G. wrote D. from San Francisco Urging him to continue the business and get extensions of' time, but “should you have to make an assignment” then to make certain persons named preferred creditors and put in certain specified stocks as assets. The pressure from creditors became so great that G subsequently made a general assignment of the firm assets, executing it in the name of the firm, in the name of G. by D. “by authorization," .and in his own name, and acknowledging it. Held, that the letter was to be understood as giving D. authority to execute the assign-meat at any time when it should become necessary during G.’s absence; and so, the assignment was valid; that while the attempted execution and acknowledgment in the name of G. was invalid, it might be treated as surplusage.</p> <p>D. had, before making the assignment, paid the debts due the persons G. had requested him to prefer. Held, that the fact they could not be preferred did not terminate the authority to make the assignment.</p>

This was an action for conversion. On the 16th of March, 1882, the plaintiffs assigned certain costumes and other theatrical property, then owned by them, to one Thomas ¡M¡. Flemming by a bill of sale absolute in form. On the same day said Flemming gave them a receipt, stating that said bill of sale was not an absolute transfer, but was designed to secure him from loss as surety upon a bond signed by him for the plaintiffs in a suit then pending.

The nature of the action and the facts are sufficiently stated in the opinion. It was error to refuse to submit the question of intent to the jury. (Hanan v. Fisher, 1 Cowp. 177.) The statute makes the question depend upon what was passing in the minds of the officers of the company when the payment was made.

<p>Where words used, in their application to an instrument of which they are a part, are not entirely intelligible, oral evidence of the circumstances attending its execution may, as between the parties, be admissible to aid in the interpretation.</p> <p>A draft was drawn upon defendant for $900, payable at a time specified, with direction to charge the same against the drawer “and of” his mother’s estate. Following the name of defendant in the draft was the word “ executor.” He accepted it, adding to his name the same word. In an action upon the acceptance it appeared that defendant was executor of the will of R. who was the mother of the drawer of the draft. The draft was indorsed over by the payee to his wife, the plaintiff. There was evidence tending to show that the draft was taken by the payee for plaintiff or with a view to transfer it to her. Defendant offered to show that when the draft was drawn it was understood between the'drawer, payee and plaintiff that it was to be paid out of the drawer’s interest in the estate; that defendant then stated in their presence he would not accept of become liable personally, and it was agreed that he should accept in his capacity as executor, to be paid only out of the drawer’s interest in the estate. This evidence was objected to and excluded. Held, error; that the testimony was competent as bearing upon the understanding of the relation and the character of the liability defendant assumed by his acceptance.</p> <p>Pinney v. Johnson (8 Wend. 500) distinguished.</p> <p>Reported on a former appeal, 101 2ST. Y. 554.</p>

The nature of the action and the facts are sufficiently stated in the opinion. Evidence is always admissible to explain the meaning of terms used in any particular trade or occupation when their meaning becomes material in order to construe a contract; and the principle on which the rule is founded extends to forms of expression as well as to single words.

This action was brought upon an instrument, a copy of which is set forth in the opinion, wherein, also, the material facts are stated. The defense of coverture, was strictly personal to Katharine Fritchie,and in no way affected the liability of the other defendants. (McGuire v. Johnson, 2 Bans. 305; Brumskill v. James, 11 K. Y. 294; Hartness v. Thompson, 5 Johns. 160.) The instrument in question is a continuing guaranty.

<p>Defendant held a chattel mortgage, given to secure a debt payable upon demand, covering a quantity of iron ore lying upon a farm owned by E., the mortgagor. E. sold the farm and the ore to plaintiff, the deed being made “ subject to the existing liens; ” the latter made a tender to defendant of $3,200 in payment and extinguishment of the lien of the mortgage, 'fhis defendant refused to accept on the ground that the amount tendered was insufficient, and thereafter entered upon the farm and sold the ore,</p> <p>; becoming himself the purchaser. In an action for conversion it was conceded by defendant that the tender was sufficient in amount, but it was claimed that it was defective in form. Plaintiff testified, as to the tender, as follows: “I tendered and offered the money to him unconditionally and in payment and extinguishment of his lien.” Held, that the tender was insufficient, as it was conditioned upon an extinguishment of the lien, which condition plaintiff had no right to attach to the acceptance; also, that, as plaintiff had not assumed payment of .the debt, and took upon himself no duty or obligation in reference thereto, he could not make a legal and valid tender, as a tender before the debt was due would be ineffectual to destroy the security, and the debt only became due on demand of defendant or tender by the debtor.</p> <p>Where a tender is relied upon, the party pleading it must show it to have been absolute and free from all conditions.</p> <p>Mem. of decision below, 30 Hun, 466.</p>

This action was brought to set aside a deed of certain lands, executed by defendant Joel Wilder to defendant Alanson Wilder, as fraudulent as against the creditors of the grantor. Plaintiff was originally appointed receiver of the property of said Joel Wilder in supplementary proceedings in an action by one Arnold and others against said Wilder.

<p>Appeal from a judgment of the general term of the superior court of the city of New York, affirming a judgment entered upon a verdict.</p>

<p>Appeal from judgment of the Court of Common Pleas, in ° and for the county of Few York, entered upon an order made June 1, 1886, which affirmed a judgment in favor of plaintiff entered upon a verdict.</p> <p>This action was brought to recover damages for personal injuries alleged to have been caused by defendants’ negligence.</p> <p>The material facts are stated in the opinion.</p> <p>Plaintiff was, at most, a mere licensee on defendants’ premises; the duty of defendants toward plaintiff, as to its freight elevators, grows out of circumstances independently of any question of license to plaintiff to enter the premises; and in such a case as this there are no circumstances creating a duty on defendants’" part to keep the freight elevators in any special condition, and consequently no obligation on defendants to remunerate plaintiff for his injuries. (Larmore v. Crown Point Iron Co., 101 N. Y. 391, 395.) The mere fact that an injury occurs on premises under the control and in the possession of a party raises no presumption of wrong against him. (Harris v. Perry, 89 N. Y. 314.) The burden of proof rests primarily upon the party injured, and it is part of complainant’s case to show affirmatively that his own carelessness did not contribute to the injury. (Splittorf v. State, 108 N. Y. 205, 216; Homer v. Everett, 15 J. & S. 298; 91 N. Y. 64; O'Mara v. D. & H. C. Co., 18 Hun, 192; Cordell v. N. Y. C. & H R. R. R. Co., 75 N. Y. 332; Reynolds v. N. Y. C. & H. R. R. R. Co., 58 id. 248; Totten v. Phipps, 52 id. 354; Wendell v. N. Y. C. & H. R. R. R. Co., 91 id. 420; Tolman v. S. B. & N. Y. R. R. Co., 98 id. 198.) The motions to strike out the testimony of plaintiff and of the witness Schroeder which showed changes in the premises made after the time of the accident, and that the premises at the time of the trial were different from their condition at the time of the accident, should have been granted. (Corcoran v. Village of Peekskill, 108 N. Y. 151; Payne v. T., etc., R. R., 9 Hun, 226; Dougan v. Champlain Co., 56 N. Y. 1; Dale v. D., L. & W. Co., 13 id. 468.)</p> <p>The question as to whether the plaintiff was guilty of contributory negligence was one of fact to be submitted to, and determined by, the jury. (McRickard v. Flint, 97 N. Y. 641.) Where a trial has been before a jury, and a general verdict has been rendered, the Qourt of Appeals can deal only with questions of law, upon exceptions duly taken, and has no power to review the findings of fact by the jury. (Oldfield v. N. Y. & H. R. R. Co., 14 N. Y. 310; Standard Oil Co. v. Amazon Ins. Co., 79 id. 506; Strong v. B. & A. R. R. Co., 58 id. 56, 60; Hynes v. McDermott, 91 id. 451; Hageman v. H. L. & I. Co., 50 id. 53, 55; Hamilton v. T. A. R. R. Co., 53 id. 25; T. A. R. R. Co. v. Ebling, 100 id. 98, 100, 101.) The defendants were guilty of negligence, not only as matter of fact as found by the jury, but also as matter of law in failing to comply with the Laws of 1871 (Chap. 625, § 16); Laws of 1874 (Chap. 547, § 5). (1 Bliss O. & W. Special Laws, 533, 534, 543 ; Willey v. Mulledy, 78 N. Y. 310, 313, 316; Wharton on Keg. §443; McGrath v. N. Y, etc., R. R. Co., 63 N. Y. 522; Massoth v. D. & H. C. Co., 64 id. 524; Bartlett Co. v. Roach, 68 Ill. 174; Sheppard v. B. R. Co., 35 N. Y. 641; Wilson v. S. T. Co., 21 Barb. 68.) This court correctly held,, when the cause was first before them, that the plaintiff was not guilty of negligence, as matter of law, and that it was for the jury, solely, to determine whether, as matter of fact, the plaintiff was guilty of contributory negligence, and that question the jury, on the second trial, has.properly found, as well as all the other issues of fact, in favor of the plaintiff. (Gordon v. G. S. & N. R. R. Co., 40 Barb. 546, 550; Dickerson v. Port Huron,. 29 Alb. L. J. 498; Loucks v. Chicago, Id. 496; Ernst v. H. R. R. R. Co. 35 N. Y. 9-28; Evans v. City of Utica, 69 id. 166—169; Jamison v. S. J. & S. C. R. R. Co., 11 Rep. 217, 218.) The plaintiff had a right to assume that the defendants’ statutory duty had been performed, and-regulate his own conduct accordingly. (Willey v. Mulledy, 78 N. Y. 310, 315; Terry v. Jewett, id. 338, 344; Erwin v. N. S. Co. 11 N. Y. Week. Dig. 347; 88 N. Y. 184; Weber v. N. Y. C. & H. R. R. R. Co., 58 id. 451.) The law did not even exact from the plaintiff, upon the facts, circumstances and surroundings, an unusual or extraordinary degree of care, and he is entitled to recover, even though the case might have admitted of even a higher degree of care on his part (Faro v. B. O. S. L. R. R. Co., 22 N. Y. 213, 216; Cook v. N. Y. C. & H. R. R. R. Co., 3 Keyes, 476, 479.) The fact, too, that the plaintiff’s mind was legitimately, naturally and lawfully occupied to a great extent, in looking after, and for ‘ Mr. Hand, with whom he was there to transact business, was a fact competent to go to the jury on the question of contributory negligence.) (Eckert v. L. I. R. R. Co., 57 Barb. 555, 559, 560; Driscoll v. Mayor, etc., 4 N. Y. Week. Dig. 461; Wasmer v. D. L. & W. R. R. Co., 80 N. Y. 212; Rexton v. Starin, 73 id. 601, 602.) Defendants’ objection to plaintiff’s evidence, as to wherein the diagrams were inaccurate, was not taken m time. It should have been to the question, not to a refusal to strike out a part of the answer, or, even if the, testimony had been improper or irresponsive, the court should even then have been asked to charge the jury to disregard it. That not having been done there was complete waiver. (Baylie’s Trial Pr. 200, 201; Platnor v. Platnor, 78 N. Y. 90, 101, 102: Briggs v. Waldron, 83 id. 582, 585, 586; Bradner v. Strong, 89 id. 299, 307.) Defendants Were, as matter of law, guilty of negligence in not having complied with the statutes. (Willey v. Mulledy, 78 N. Y. 310, 313, 314, 316; McGrath v. N. Y. C. & H. R. R. R. Co., 63 id. 522; Massoth v. D. & H. C. Co., 64 id. 524; Shepard v. B., etc., Co., 35 id. 641; Wilson v. Susquehanna, etc., Co., 21 Barb. 68; Bartlett Co. v. Roach, 68 Ill. 174.)</p>

<p>In an action upon a time policy of marine insurance upon a canal-boat, issued July 5, 1883, which expressly excepted “perils and losses from rottenness, inherent defects and other unseaworthiness, ” it appeared that the boat was repaired on August twenty-eighth, and was then in good seaworthy condition. There was no proof as to its condition after that time. It was employed in transporting coal. It left port loaded with coal on October nineteenth, and the next morning, in fair weather and smooth water, while being towed by a steam tug, suddenly sprung aleak and immediately sunk. The boat was old and subjected to heavy strains, and one of plaintiffs’ witnesses testified that it might be strained in loading or unloading, and that one heavy cargo might render it unseaworthy. Held, that plaintiffs were properly nonsuited ; that it was at least incumbent upon them to show that the boat was seaworthy when she left upon her last trip.</p> <p>It seems that, where it appears that a vessel, shortly after sailing, becomes leaky and sinks without encountering any peril or storm, this is presumptive evidence of unseaworthiness.</p> <p>Reported below, 21 J. & S. 102.</p>

This action was brought to recover for injuries to plaintiff’s crops, caused, as he alleged, by the act of the defendant in raising a dam on the outlet of O wasco lake and thereby flooding his premises.

The facts are sufficiently stated in the opinion. The admitted absence of the relator from duty without leave terminated his membership of the police force on June 18, 1879. (Laws of 1873, chap. 755, p. 1120, § 5.) Absence from duty without leave, whether voluntary or involuntary, under the statute, terminates membership.

The nature of the action and the facts are stifficiently stated in the opinion. Plaintiffs had no title, while defendant had title, and, therefore, the direction of the verdict in plaintiffs’ favor was error. (Becker v. Holdridge, 47 How.

The nature of the action and the material facts are stated in the opinion. Where award and submission are unambiguous you cannot go behind the face of the submission or award to attack it. (Cobb v. D. Mfg. Co., 108 N. Y. 468; Doke v. James, 4 id. 568.) Damages from breaking up Dodds’ business and losing a good place for his business, were properly not allowed. (In re Badger, 2 B. & Ald. 691; Emmett v. Hoyt, 17 Wend. 410; Cobb v. D. Mfg.

<p>This action was brought to recover for goods sold. At the time of its commencement proceedings in bankruptcy were pending against the defendants. An order of arrest was issued in the action on the ground of false representations inducing the sale. After an injunction had been obtained in the bankruptcy court to restrain proceedings to collect the debt one of the defendants was arrested under the order. Thereupon defendants instituted proceedings to punish plaintiffs, their attorneys, etc., for contempt. Pending these proceedings plaintiffs signed a stipulation whereby they agreed that the order of arrest should be vacated, and that no additional or further arrests should be made in the action, “ or any action to collect the debt, except in.bankruptcy, on their part, in respect to or upon the claim or debt, for the recovery of which the action ” was brought, and that either party might enter an order ex parte to that effect. The defendants having been adjudicated bankrupts, set up their discharge in bar. Plaintiffs, on the trial, offered evidence tending to prove that the debt in suit was fraudulently contracted. Defendants objected, producing the stipulation in support of their objection, and claiming that under it plaintiff’s proceedings were limited to the bankruptcy court, and they could proceed to judgment in the action only in case the discharge was refused. The objection was sustained. Held, error; that the stipulation did not deprive plaintiffs of the right to prove that their debt was not one of those from which defendants were relieved by their discharge.</p>

The nature of the action and the material facts are stated in the opinion. The agreement from Mrs. King and her husband to the plaintiff, in March, 1877, did not operate as a conveyance of the interest of the two minor children of Joseph Hayden. (Cagger v. Lansin v. 64 N. Y. 428; Emerson v. Spicer, 46 id. 594.) A contract for the purchase of land goes to the heir. (Story Eq. Juris. § 790; Fry on Specific Performance, § 118; Watson v. LeRow, 6 Barb. 481; 3 Johns.

The nature of the action and the material facts are stated in the opinion. It was error to allow Madden to read from his book the entries he said he made in it, at the time he indorsed the checks, of the date, amount of and time when the checks were made payable. (Russell v. H. R. R. R. Co., 17 N. Y. 134; 1 Phil. Ev. 289; Halsey v. Sinsebaugh, 15 N. Y. 485; Collins v. Rockwood, 64 How. Pr. 57; Meacham v. Pell, 51 Barb. 65, 67, 68; Deshon v. Ins.

This action was commenced to foreclose a mortgage, dated and recorded February 21, 1856, given by Jonah Miller to Abraham H. Impson to secure the payment of $1,000, in one year, with interest, according to the condition of a bond accompanying the same. Said bond and mortgage were duly assigned, for value, April 30, 1856, by Impson to Matilda C. Durland, April 1,1861, by the latter to James Durland, and January 30,1880, by the said James Durland to the plaintiff.

judicial department, entered upon an order made December 13, 1887, which affirmed a judgment in favor of defendants, entered upon a verdict. The nature of the action and the facts are sufficiently stated in the opinion. If the imperfections of the bin contributed to the accident, and the plaintiff is blameless, the master is liable.

The nature of the action and the facts are sufficiently stated in the opinion. The agreement for a. rebate is void as against public policy.

This was an action of ejectment to recover the possession of thirty acres of land in the town of Hartland, county of Miagara. The defense was a general denial. The parties are the children of one John Wright, who died April 2, T861, leaving a last will and testament, the material portion of which is as follows, viz.: “ First.

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. The plaintiff was guilty of contributory negligence, as a matter of law, in stepping into the shaft under the circumstances, the hallway being light, the elevator making considerable noise in coming down and she not looldng before she stepped in.

The nature of the proceeding and the facts' are sufficiently stated in the opinion. The board cannot avoid the performance of its duty of auditing and certifying claims by deciding erroneously that they were not legal town charges.

This action was brought to recover damages for alleged breach of a contract made between the firm of Gill & Mansfield, contractors, and the defendant, for the construction by the former for the latter of a grain elevator. Gill assigned his interest in the contract to Mansfield, the plaintiff.

judgment in favor of plaintiffs, entered upon a verdict. The action was brought to recover for the alleged conversion of personal property.

The nature of the action and the facts, so far as material, are stated in the opinions. The plaintiff cannot legally maintain this action; it should have been brought in the name of the infant by a guardian ad litem. (Code, §§ 468, 469, 470; Segelken v. Meyer, 94 N. Y. 479; Buerman v. Buerman, 17 Abb. N. C. 391; Bradley v. Amidon, 10 Paige, 235; Hoyt v. Hilton, 2 Edw.

<p>Where a number of persons and firms have conspired together, in violation of the statutes (2 JR. S. 692, § 8, sub. 6; Penal Code, § 168), to do acts injurious to trade, for instance, to unlawfully advance the price of an article of food, the courts will not intervene in favor of any one of the parties to give him redress for frauds perpetrated by another to his detriment in carrying out the unlawful enterprise.</p> <p>It does not affect the question that the party complained of as guilty of the fraud was acting as agent for the others. All those who knowingly promote and participate in carrying out a criminal scheme are principals, and the fact that one acts, in some respects, in subordination to the others, does not render him less a principal.</p> <p>Where, therefore, a broker, who was one of the parties to an unlawful scheme to advance the price of lard, but who acted in carrying out the scheme simply as agent for the others, was proved to have defrauded his principals, held, that an action to compel him to account was riot maintainable; that the courts would not aid in adjusting differences arising out of and requiring an investigation of the illegal transactions.</p> <p>Reported below, 23 J & S. 213.</p>

This action was brought to recover damages for personal injuries alleged to have been caused by defendant’s negligence. A few days before June 15, 1883, the defendant lawfully opened a trench parallel with and about twenty inches south of the south rail of the south track of the Sixth Avenue Street Railroad Company in Yesey street. This trench was three or four feet deep, six feet wide and its sides were sheathed with plank to prevent the earth from caving in.

In 1883 the firm of Martin, Dyce & Co. carried on a mercantile business at Manilla, in the Philippine Islands, and the firm of Martin, Turner & Co., composed of the same persons, carried on a banking business at Glasgow, Scotland.

The nature of the action and the facts are sufficiently stated in the opinion. The immediate proximate cause of the falling of the gate was the falling of a skid with force against the gate thus causing the gate to fall. The falling of the skid was caused by persons in the employ of the steamship, fellow servants of the plaintiff, and, therefore, for any injury resulting therefrom the plaintiff cannot recover in this action. (Beach on Cont.

This action was brought against defendant, a married woman, to recover a balance claimed to be due for meat alleged to have been sold to her. The facts are sufficiently stated in the opinion. If the defendant was carrying on the business at the hotel or hoarding-house “ on her sole and separate account,” she was liable for the meat furnished by the plaintiff.

<p>In an action to recover damages for personal injuries to plaintiff, and also for injuries to llis wagon, the complaint alleged that he was “put to expense in repairing the same and endeavoring to be healed of his own hurts, and prevented from going on with his business.”' There was no allegation that he expended money in hiring others to work in his place. Plaintiff was permitted to testify, under objection, that the evidence was not within the issue; that while suffering from his injury he employed two men to work in his place and paid them $185. Held, error.</p> <p>Where a plaintiff alleges in his complaint that his person has been injured by the negligence of defendant, and proves the negligence and injury, the law implies damages, and he may recover such as necessarily and immediately flow from the injury, under a general allegation that damages-were sustained; but if he seeks to recover damages for consequences-which do not necessarily and immediately flow from the injury, he must allege the special damages he seeks to recover.</p> <p>Plaintiff was permitted to testify, under objection and exception,- as to the amount paid for repairs to his property, without showing that the repairs were proper or worth the sum paid. Held, error.</p> <p>Plaintiff was permitted to show how much his physician charged with out-giving evidence of payment, or any evidence of the value of the services. Held, error.</p>

The nature of the action and .the material facts are stated in the opinion. The title acquired by the Hudson River Railroad Company to lands under water is a limited fee.

<p>Appeal from judgment of the General Term of the Supreme ■ Court in the second judicial department, entered upon an order made July 23, 1886, which affirmed a judgment in favor of plaintiffs, entered upon a verdict, and affirmed an order deny- . ing a motion for a new trial.</p> <p>The nature of the action and the material-facts .-are stated ;in the opinion.</p> <p>The proof so clearly preponderated against the plaintiffs’ claim for damages that a nonsuit should have been granted. A mere scintilla of evidence will not sustain a recovery. (Dwight v. G. L. Ins. Co., 103 N. Y. 359; Improvement Co. v. Mason, 14 Wall. 442.) The plaintiffs did not own the fee to the centre of the street. (Wetmore v. Law, 34 Barb. 515; English v. Brennan, 60 N. Y. 609; White's Bk. v. Nichols, 64 id. 65; Augustine v. Britt, 15 Hun, 395; 80 N. Y. 647.) Defendant was entitled, therefore, to have the jury charged as requested, that the plaintiffs have no title to the fee in Third avenue, and that the defendant has not trespassed upon the plaintiffs’ property in operating its road in front of plaintiffs’ property. (Paulitsch v. N. Y. C., 4 East. Rep. 922; Green v. White, 37 R Y. 405.)</p> <p>The defendant created a nuisance in the highway, such use of the highway being in direct violation of law, not having obtained the requisite consents of the mayor and common council of the city of Brooklyn, and of the plaintiffs, and the plaintiffs, as abutting lot owners, even though their title does not extend to the soil of the highway .itself, having an easement in such highway, and having suffered special damages by reason of the nuisance to their premises, are entitled to" maintain an action to recover the damages, and even enjoin such unlawful use of the highway by an action in equity. (Mahady v. B. R. R. Co., 91 N. Y. 148; Uline v. N Y. C. R. R. Co., 101 id. 98; Lahr v. M. R. R. Co., 104 id. 291; Henderson v. N. Y. C. R. R. Co., 78 id. 423; Story v. El. R. R. Co., 90 id. 122; Milhau v. Sharp, 27 id. 611, 624, 625; People v. Kerr, Id. 193; Davis v. Mayor, etc., 14 id. 507; Corning v. Loweree, 6 Johns. Ch. 439; Atty.-General v. Cohoes, 6 Paige, 133; Williams v. N. Y. C. R. R. Co., 16 id. 97, 111; Gardner v. Newburgh, 2 Johns. Ch. 168; Francis v. Schoelkopf, 53 id. 152; Willoughby v. Jenks, 20 Wend. 96; Presb. Soc. v. A. & R. R. Co., 3 Hill, 567; Wager v. T. U. R. R. Co., 25 N. Y. 561; Craig v. R., etc., R. R. Co., 39 id. 404; Carpenter v. O. R. R. Co., 24 id. 265; 18 Am. Law Rep. 707; R. G. L. Co. v. Calkins, 62 id. 386; Mahon v. N. Y. C. R. R. Co., 24 id. 658; People ex rel. Ennis v. Schroeder, 76 id. 160; 12 Hun, 413; North v. Cary, 4 T. & C. 357; N. Y & B. S. M. Co. v. City, 71 N. Y. 580; 2 R. S. 555, § 27; People v. Nichols, 52 N. Y. 481.) The defendant will not be permitted on this appeal to claim that it was error on the part of the trial judge to permit the plaintiffs to recover damages to the date of the trial instead of to the date of the commencement of the action. (Uline v. N. Y. C. R. R. Co., 101 N. Y. 98; Lahr v. M. R. R. Co., 104 id. 293; McGovern v. N. Y. G. R. R. Co., 67 id. 417.) It is immaterial that the nuisance was created before the plaintiffs became the owners of the property; its continuance from day to day after the plaintiffs became such owners amounted to the creation of a fresh nuisance. (Uline v. N. Y. C. R. R. Co., 101 N. Y. 98; Lahr v. Met. El. R. R. Co., 104 id. 295.)</p>

The nature of the action and the material facts are stated in the opinion. The. trial court was right in judging the assessment void, because the paving for which the assessment was made involved a change of the established grade of the avenue paved without any petition or consent of adjacent owners.

The nature of the action and the material facts are stated in the opinion. A promissory note to be the subject of sale must be an existing valid note in the hands of the payee, and given for some actual consideration, so that it can be enforced between the original parties; and if not valid in the hands of the payee, it cannot be rendered valid by a sale to a hona fide purchaser at a rate of interest exceeding the lawful rate.

The nature of the action and the facts are sufficiently stated in the opinion. The defendant made no statement or representation upon which an action could be predicated, unaided by other concurrent circumstances tending to prove fraud.

This action was brought to recover damages or injuries alleged to have been caused by defendant’s negligence. The following facts appeared on trial: In the afternoon of August 18, 1879, as the plaintiff was walking north on the east sidewalk of Third avenue, in the city of Mew York, between One Hundred and Twenty-sixth and One Hundred and Twenty-seventh streets, a hard substance entered and injured her right eye.

The nature of the action and the material facts are stated in the opinion. Defendant had a right to stand upon the terms of the contract, and was not bound unless the condition upon which his obligations depended was fulfilled.

The nature of the action and the facts are sufficiently stated in the opinion. Beed was the real party in interest, the absolute and exclusive owner, and, as such, could have sued in his own name or in the name of his agent. (Code, § 449; 6 How. Pr. 471-474 ; 13 Kan. 567; 2 Sandf. .708; Calvert on Parties, 218.) Where a bond or judgment is assigned in trust, the donee in trust takes only an equitable ■title, and the legal title remains for the benefit of the assignor.

This action was brought to recover for moneys expended and services rendered by plaintiff at the alleged request of defendant, and for its use and benefit. The facts, so far as material, are stated in the opinion. The building of the road was the extraordinary business of the company, and any authority in respect to the making of the contract therefor must be specially conferred.

a verdict, and granting a new trial. The nature of the action and the facts are sufficiently stated in the opinion. The order is appealable to this court. (Codé, §§ 190, 191,) The duty of granting or refusing a new trial, under section 999 of the Code, being one resting largely in the discretion of the judge presiding, his decision is not reviewable here and the appeal should be dismissed. (McKeever v. Weyer, 11 Week.

This action was upon a draft drawn by the firm of Stettheimer, Tone & Co., of which firm defendants were the members, private bankers, for $10,000, payable to plaintiff. The facts are sufficiently stated in the opinion. Remedies at law are forbidden between partners, they must resort to equity for a determination of their respective rights upon an accounting.

The nature of the action and the facts are sufficiently stated in the opinion. As the payment by the-plaintiff of the calls was not only thus the sole consideration for the defendant’s sharing with him the profits or losses, but was necessarily to precede it in point of time, the former was a condition precedent of the latter.

This action was brought to recover upon two notes made by the defendant, with his seal affixed, of dates November 10, 1869, and March 11, 18J0, for $500 and $400, payable to Nathaniel O. Hawxhurst, “ or to his executors or administrators,” with interest, the former at five and the latter at six per cent.

On December 31, 1884, the plaintiff commenced an action against the defendant, based upon the facts hereinafter stated, but subsequently the parties agreed that said action should be ■suspended and the questions in difference submitted to the ■Supreme Court as of the date when the action was commenced.

The nature of the action and the facts are sufficiently stated in the opinion. An agent is not liable for acts done as such on behalf of the principal when thp party dealing with him knows that he is treating with him as an agent and not as principal, provided that it does not appear that the agent exceeded his authority.

On the 31st day of May, 1873, the plaintiff was the owner -of the canal boat “Jay Pettibone,” its tackle and furniture and four mules and their harnesses, then used in towing the boat. On that day a written contract was entered into between the parties, by which plaintiff agreed to sell to defendant this property for $6,000, which the defendant agreed to pay in twelve equal installments, with interest, the last payment falling due November 1, 1875.

The nature of the action and the facts are sufficiently stated in the opinion. The undertaking given on the discharge of the prisoner Holt resolves itself into an assumpsit at common law. (Toles v. Adee, 84 N. Y. 222; S. C., 91 id. 562.) The validity of the undertaking as a technical bail bond was, therefore, not necessary.

Court of the city of Hew York, entered upon an order made July 31, 1-886, which affirmed a judgment in favor of plaintiff, entered upon a verdict, and affirmed an order denying a motion for a new trial. When illegal evidence has been admitted against objection, which bears in the least degree on the result, it is fatal.

made May 20, 1886, which affirmed a judgment in favor of defendants, and ordered the exceptions to be heard in the first instance at the General Term. The nature of the action and the facts are sufficiently stated in the opinion. This was an action in equity, and was properly decided by the court as to the facts as well as the law, and no error was or could be committed by the trial court in refusing the plaintiff leave to go to the jury upon the facts.

<p>The rule of the common law, that an action to recover damages for a personal injury abates on the death of the plaintiff, is not changed by the Code of Civil Procedure except where “ a verdict, report or decision ” has been rendered upon the issues. (§ 764.)</p> <p>A nonsuit on trial by jury is not & “ decision ” within the meaning of said Code, nor is an order of General Term reversing a judgment entered on the nonsuit; that word refers to a decision made by a court on trial without a' jury.</p> <p>' A stipulation for judgment absolute, in case of affirmance, given by defendant on appeal to this court from the General Term order of reversal, does not prevent the abatement of the action, where plaintiff dies after the appeal</p>

The nature of the action and the material facts are stated in the opinion. Plaintiff was bound to make himself acquainted with the situation and the duties of the occupation he voluntarily assumed.

This action was brought to remove a cloud upon the title of real property belonging to the plaintiff in the city of Brooklyn, which had been sold for unpaid taxes for the year 1884, upon the ground that the assessment of taxes thereon was void; to cancel the sale and the certificate and record thereof, and to restrain the city and its registrar from executing or delivering a deed to the purchaser.

This action was brought to recover a payment made at the time of the execution of a contract for the sale of lands on the ground of defect in title. In 1819 Peter Kemble owned in fee and was in possession of two lots now known as Ho. 56 Marion street and Ho. 91. Crosby street, in the city of Hew York. February 1, 1823, he died, having devised these lots to his five children, share and share alike. His will was duly probated.

This action was brought to recover damages alleged to have been caused by defendant’s negligence. The material facts are stated in the opinion. Plaintiff, in doing what he did, in changing his seat, was guilty of negligence as matter of law. (Holbrook v. U. & B. R. R. R. Co., 12 N. Y. 236; Todd v. Old Colony R. R. Co., 3 Allen, 18; 7 id. 207; Torrey v. B. & A. R. R. Co., 147 Mass. 412; Pittsburgh, etc., R. R. Co. v. McClurg, 56 Penn.