Volume 115 — New York Reports

<p>An action in the nature of an action of assumpsit lies against one who has obtained money from another by a fraud, and such a claim is a proper subject of an offset in an action brought by the party against whom it-exists; the tort may be waived and the action or set-off, founded on an implied promise to return the money wrongfully obtained.</p> <p>An assignee of such a party of a cause of action on contract takes it. subject to such a set-off.</p> <p>On September 6,1884, the firm of R. Bros. & Co., to whom plaintiffs were-indebted in the sum of $2,796.77, which indebtedness fell due about-January 1,1885, delivered to plaintiffs anote for $5,000, indorsed by said-firm, with a request that plaintiffs would indorse and procure it to be discounted for the benefit of said firm, representing that the note was perfectly good and plaintiffs would run no risk in indorsing it, and promising to' pay it at maturity, which representations were false and fraudulent, as both-, the makers and indorser were insolvent. Relying on the representations made, and also upon the fact that they were debtors to R. Bros. & Co., ■ plaintiffs, indorsed the note, procured it to be discounted and sent the avails to said firm. On September 19,1884, said firm made a general assignment to defendant for the benefit of creditors, preferring creditors other than plaintiffs to an amount more than the value of its assets. On September 20, 1884, the makers of the note made a general assignment, their assets were, at the time, covered by mortgages for more than their value. Said note was not paid when due; was duly protested, and was then paid by plaintiffs, who thereafter requested defendant to apply sufficient of the amount so due to them to the extinguishment of the amount due from them to him as assignee; this he refused. Held, that an action was maintainable to compel such application; that defendant's assignors having obtained the money by means of the fraud, at once became liable to repay the same, and the fact that plaintiffs’ indebtedness was not due when the assignment was made to defendant did not affect their right of set-off.</p> <p>As to the right of set-off in equity, the fact that a debt owing to an insol- ; vent is not due at the time he makes an assignment is immaterial; the setting it up by the debtor is a waiver of any defense upon the ground that the debt is not due, and such waiver may lawfully and properly be made.</p> <p>Chance v. Isaacs (5 Paige, 592) distinguished.</p>

This action was brought by plaintiff, as a creditor of one Henry W. Beadle, in his own behalf and that of other creditors against defendants, as assignees for the benefit of creditors of said Beadle, for an accounting, a determination of the amount-of the assigned estate in their hands, or for which they were chargeable, and a judgment directing the distribution of the-fund so ascertained.

<p>1. Practice—When objection deemed waited.</p> <p>An objection, when not taken advantage of by either demurrer or answer, must be deemed to have been waived, and may be disregarded.</p> <p>2. Negligence—Railroad crossing—Evidence of reconstruction of, WHEN COMPETENT. "</p> <p>The action was for injuries caused by defendant’s negligence. One ground of negligence asserted was the defective construction of the crossing at which plaintiff was injured The complaint averred an ownership of the crossing by the defendant company, and alleged that plaintiff “ had her foot inextricably caught and fastened between the rail and the planks at the crossing belonging to such railroad,” and charged that the.defendant negligently permitted an arrangement of the planks to be and remain defective. The answer denied the defective arrangement, but did not deny the ownership of the plank crossing, and raised no issue over that ownership and the duty flowing from it. The plaintiff offered proof _ of a reconstruction of the crossing after the accident by the company which was excluded. Held, that while inadmissible upon the question cf negligence, as it tended to show that the company exercised the dominion of an owner over the crossing its rejection was justifiable only upon the ground that no such issue was raised by the pleadings.</p> <p>3. Same—What question for the jury.</p> <p>Whether the crossing was defectively built and maintained, was properly submitted to the consideration of the jury.</p> <p>4. Same—Instructions to jury—When negligence not imputed.</p> <p>The court charged that “if as soon as the engineer saw the plaintiff fall upon the track, or discovered that, for some reason, she could not, or might not, get out of the way in time, he made diligent use of all the means at his command in order to stop the train and avoid injuring the plaintiff, he did all that he was required to do. and was guilty of no negligence. Held, no error</p> <p>5. Same—When party not trespasser.</p> <p>It was contended by plaintiff 'that she stepped upon the track in the effort to save younger children from danger. Held, that in such an event plaintiff was not a trespasser.</p>

The nature of the action and the material facts are stated in the opinion. The motion for a nonsuit should have been. granted, as the action was improperly brought in the name of the guardian ad litem, and the error is one that cannot be cured by amendment.

The complaint in this action alleged, in substance, that plaintiffs were the owners of certain promissory notes executed by the firm, Herron & Spencer, as collateral security for the payment of which they held United States bonded warehouse receipts for goods imported by the makers; that said firm, having become insolvent, executed an assignment for the benefit of creditors; that plaintiffs, together with other creditors holding similar securities, entered into an…

<p>The firm of H. & W., members of the Petroleum Exchange of the city of" New York, contracted to sell to plaintiffs forty-three thousand barrels- “ regular ” oil, i. e., oil free from storage charges. Defendant, which acted as a clearing-house for the members of said exchange, held a large-quantity of oil belonging to said firm as security for loans. It agreed to transfer to plaintiffs forty-three thousand barrels of the oil in its hands to answer said contract of sale on receiving the purchase-price. This-was accordingly paid to it, and.it transferred to plaintiffs oil certificates-for the said number of barrels, holding them, however, as security for a loan made by it to plaintiffs of part of the purchase-money. By the rules-of said exchange only “regular” oil was a good delivery on such a contract. Defendant was familiar with these rules. The certificates so transferred and held by defendant were subject to storage charges, and plaintiff was charged with the amount thereof. In an action to recover ' the same, held, the facts justified a finding that, under the agreement between the parties, the oil to be transferred to plaintiff was to be free-from storage charges up to the time of the transfer.</p> <p>The referee, after finding that II. & W. were, by their contract, obligated to deliver oil with storage charges paid up to the time of delivery, found that defendant agreed to transfer to plaintiffs’ firm certificates to the-amount of or representing such forty-three thousand barrels of oil, which, under the custom, necessarily, would be certificates having the storage charges paid. It was claimed by defendant that the referee put his judgment against defendant on a custom of the trade which was not binding' upon it, and did not control the transaction. Held, untenable; that the import of the two findings taken together was that defendant agreed to-transfer such oil as H. & W. had obligated themselves to deliver.</p> <p>The prevailing party is entitled to the most favorable construction of the findings of a referee to uphold the judgment.</p> <p>Reversed, 33 J. & S. 383.</p>

This action was brought to recover an indebtedness of the county of Westchester to the Willard Asylum for the Insane, The answer alleged payment. The material facts are stated in the opinion. The only remedy of plaintiff, if its claim has not been paid, was to apply to the court for a writ of mandamus to compel the board of supervisors to audit its claim and cause the same to be made of the property of the county by the assessment and collection of a tax therefor.

<p>The owner of premises owes no duty of active diligence to one going thereon without invitation, but simply as a bare licensee, and is not liable for injuries resulting from an omission to- keep a structure thereon in repair.</p> <p>The fact that private premises are, for the convenience of the owner, connected by him with a public highway by a bridge, no portion of which is in the highway, imposes no duty upon the owner to maintain and protect the bridge for public-use; and the fact that the bridge is used by the public, net under any agreement with or by permission of the owner, but merely by his sufferance, does not make him liable for injuries to one crossing the bridge for his own convenience or pleasure, caused by its being out of repair; at least when the defect is open and apparent.</p> <p>Beck v. Carter (68 N. Y. 292) distinguished.</p>

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

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

department, entered upon an order made April 14, 1888, which affirmed a judgment in favor of plaintiff, entered upon the report of a referee. This action was brought for an accounting by the defendant for moneys received by him on the sale of lands in Ohio and Illinois, and upon a certain mortgage upon lands in Ohio, alleged in the complaint to have been held by the defendant • as security for money loaned by the defendant to his brother, plaintiff’s intestate.

<p>Appeal from judgment of the General Term of the Supreme Court in the second judicial department, entered upon an order made July 2, 1887, which affirmed a judgment in favor of defendant, entered upon a decision of the court on trial at Special Term.</p> <p>Prior to the 1st day of March, 1855, Nathan Gifford, Howland P. Sherman and George Innis did business in the city of Poughkeepsie, N. Y., as dealers in dye wood, and were partners in such business, which was carried on in the firm name of Gifford, Sherman & Innis. On the 1st of March, 1855, Nathan Gifford sold and transferred all his interest in the partnership property and business to the remaining partners Sherman and Innis, and on that day he withdrew from the firm and thereafter had no connection with it as a partner. The survivors, Sherman and Innis, continued the business as partners under the same firm name of Gifford, Sherman & Innis, until Mr. Sherman died, which was in the year 1859, and from that time down to about the 2d day of August, 1884-, George Innis continued and carried on the same business under the same firm name of Gifford, Sherman & Innis, but he alone was interested in the business and he had no partner. On the date last named George Innis failed in business and made a general assignment for the benefit of his creditors of all his property, whether -standing and held by him in his individual name or in the name of the firm, which assignment was made to and accepted by the defendant Aaron Innis, who subsequently duly qualified and executed a bond pursuant to the statute, which was approved by the county judge of Dutchess county.</p> <p>By this assignment' the employes of the assignor were made preferred creditors, and then certain other creditors were preferred whose claims arose against the business done in the name of Gifford, Sherman & Innis, as distinguished from the personal or individual creditors of George Innis. Subsequent to the above-mentioned assignment, and in December, 1884, and March, 1886, several creditors of George Innis obtained several and separate judgments against him and issued executions thereon, which were returned unsatisfied. The contracts and obligations upon which the judgments were obtained were incurred under the said firm name of Gifford, Sherman & Innis.</p> <p>The plaintiffs in those actions assigned their various claims to the plaintiff herein, who thereafter commenced this action in his own behalf, and in hehalf of all other creditors of Gifford, Sherman & Innis who might come in and contribute to the expense of the action. In such action the plaintiff demanded for relief the appointment of a receiver of the property, assets and effects of the late firm of Gifford, Sherman & Innis, to whom the defendant Aaron Innis, assignee as aforesaid, should deliver all the property of the firm in his possession, and that the assignment executed by George Innis should be declared null and void, and that the defendants, George and Aaron Innis, should be adjudged to account for all the property, assets and effects of the said firm; that the defendant should be enjoined from paying out or disposing of any of the assets or effects of the said firm or interfering therewith, except to deliver the same to a receiver when appointed. Also, that a decree might be entered adjudging the plaintiff to be entitled to be paid in full out of the assets of said firm in preference to the claims of individual creditors of said George Innis.</p> <p>The trial court found that by the assignment certain creditors were preferred, and that those creditors who were thus preferred were those whose claims arose against the business done in the name of Gifford, Sherman & Trim's, as distinguished from the personal or individual creditors of George Innis. The ground for claiming to have the assignment set aside was that the assignor preferred some of his individual creditors before those of his creditors who might be designated firm creditors. The trial court gave, judgment for the defendant' and dismissed the complaint upon the merits.</p> <p>The preference of creditors, who dealt with Innis as an individual, was a fraud upon the rights of creditors who dealt with the firm and were in ignorance of the real facts. (Kelly v. Scott, 49 N. Y. 595.) Innis and his assignee are estopped from denying that Gifford was an actual partner, and the court erred in allowing testimony that he was not. (Kelly v. Scott, 49 N. Y. 595.) The defendants were furthermore concluded and estopped by the judgments against Gifford & Innis, upon which plaintiff bases this action. (Leavitt v. Walcott, 95 N. Y. 212; Smith v. Smith, 79 id. 634; Tuska v. O'Brien, 68 id. 446.) The creditors do not stand on an equal basis. Those who trusted the firm have a preference over those who trusted Innis individually. (Nat. Bank of Salem v. Thomas, 47 N. Y. 19 ; Jaques v. Marquand, 6 Cow. 497; Emily v. Lye, 15 East, 7.) The court erred in granting an extra allowance to defendants of $250. Such an allowance being granted in the judgment and decision it can be reviewed upon appeal. (Adams v. Sullivan, 42 Hun, 278; Weaver v. Ely, 83 N. Y. 89.) It does not matter whether the debt- was contracted in the business or not. The distinction is between those who give credit to a partnership and those who give credit merely to the individual. (Pars, on Partnership [3d ed.J 113.)</p> <p>Eeither George Innis nor Eathan Gifford had any interest in contesting the allegation of partnership. Innis, in any event, was liable upon the claims based on his own contracts, and Gifford was liable, having permitted his name to appear as one' of the firm. (Poillon v. Secor, 61 N. Y. 456; Williams v. Gellies, 13 Hun, 422-426.) It is only between the same parties or their privies that a judgment is conclusive as'res adjudicata upon matter’s which were or might have been litigated. (Patrick v. Shaffer, 94 N. Y. 430 ; Leavitt v. Walcott, 95 id. 212; Lawrence v. Campbell, 32 id. 455.) Even if the judgments had gone against Aaron Xnnis individually, it would not have estopped him in his capacity of assignee for the benefit of creditors. (Rathbone v. Hooney, 58 N. Y. 467; Jackson v. Mills, 13 J. R. 463 ; Sinclair v. Jackson, 8 Cow. 565; Jackson v. Hoffman, 9 id. 271.) . Chapter 314, Laws of 1858, expressly authorizes assignees for benefit of creditors and other trustees to impeach and disaffirm and treat as void all acts, etc., done in fraud of the rights of any creditors. (Ball v. Shafter, 98 N. Y. 622; Reynolds v. Ellis, 103 id. 123.) The acts and declaration of the assignor, after assignment' and possession under it, are inadmissible as evidence even against the assignee. Still less is he estopped by them. (Coyne v. Weaver, 84 N. Y. 392; Cuyler v. McCartney, 40 id. 221; Tilson v. Terwilliger, 56 id. 273.) The giving of the bond is not a prerequisite to the validity of the assignment, and if the former when given is irregular and void, it does not affect the validity of the latter. (Thrasher v. Bentley, 59 N. Y. 648; Matter of Furman, 75 id. 190 ; Brennan v. Willson, 71 id. 502; Warner v. Jaffray, 96 id. 252.) If it had been proved and found that no individual debts of the copartners existed, the assignment would not have been void on account of the provisions as to such debts in the instrument. (Hurlbut v. Dean, 2 Keyes, 105 ; Mason v. Lord, 40 N. Y. 476.) The assignee was not concluded and estopped on the question of partnership by the mere use of the partnership name. (Kelly v. Scott, 49 N. Y. 395 ; Co. on Litt. 352 b; Dezell v. Odell, 3 Hill, 224, 225.) If, upon all the evidence and facts in the case, an inference that there was no intent to mislead by the use of the firm name, and that the plaintiff’s assignors here were not misled, might have been drawn, then in support of the judgment it will be presumed that it was drawn. (Platt v. N. Y. C. Ins. Co., 55 N. Y. 510; Myer v. Amidon, 45 id. 173; Demon v. Hazard, 32 id. 77; Grant v. Morse, 22 id. 323.) Where the assignment is set aside for fraud, the assignee will not be answerable for payments under it to bona fide creditors before the filing of the bill. (Wakeman v. Grover, 4 Paige, 24; Columb v. Reid, 24 N. Y. 505, 515 ; Burrill on Assignments, 631, 632, 677, § 507.) A party setting up an equitable estoppel is himself bound to the exercise of good faith, and he must act promptly. (Andrews v. Ætna Life Ins. Co., 85 N. Y. 343 ; Bigelow on Estop. 293; Delavan v. Duncan, 49 N. Y. 488.)</p>

Appeal by defendant Sampson S. Leo from judgment of the General Term of the Supreme Court in the first judicial department, entered upon an order made May 18,1888, which affirmed a judgment in favor of defendant, the Eorth American Belief Society, 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 Sampson Simson, deceased. The material facts are stated in the opinion.

<p>Appeal from judgment of the General Term of the Supreme Court in the first judicial départment, entered upon an order made October 26, 1887, which affirmed a judgment in favor of defendant, entered upon an order nonsuiting plaintiff on trial.</p> <p>This was an action to recover damages for the alleged negligence in causing the ■ death of plaintiff’s intestate, a child of seven years and three or four months old.</p> <p>The facts, so far as material, are stated in the opinion.</p> <p>In an action brought by an infant, or by her representatives, to recover damages because of defendant’s negligence, a recovery can only be defeated by the contributory negligence, if any, of the infant, if site is sai juris; or if she is not sui juris, if the injury occurred through the contributory negligence of her parents. (McGarry v. Loomis, 63 N. Y. 104; Cosgrove v. Ogden, 49 id. 255 ; Fisselmeyer v. Third Ave. R. R. Co., 2 N. Y. S. R. 75; Fallon v. C. P. R. R. Co, 64 N. Y. 13 ; Birkett v. Knick Ice Co., 110 id. 504; Kunz v. City of Troy, 104 id. 341, 344.) Applying the doctrine that of an infant of tender years less discretion is required, and the degree of discretion depends upon its degree of knowledge, it cannotbe arbitrarily assumed that the act of the deceased in attempting to cross the street was, per se, negligence. (Thurber v. Harlem R. R. Co., 60 N. Y. 326; Kunz v. City of Troy, 104 id. 344.) In the absence of proof of contributory negligence of the parents, even if it be claimed that the deceased was negligent, the defendant would, notwithstanding, be liable, if the deceased was, at the time of the injury, non suA juris, and the question whether the deceased was or was not sui juris was a question of fact which should have been submitted to the jury for their determination. (Managan v. B. R. R Co., 38 N. Y. 455; Thurber v. Harlem R. R. Co., 60 id. 326; R. R. Co. v. Gladmon, 15 Wall. 401; Finkelstein v. N. Y. C. R. R. Co., 41 Hun, 40; Costello v. S. R. Co., 65 Barb. 92, 99; Moebus v. Herman, 108 N. Y. 352; Kunz v. City of Troy, 104 id. 344; Birkett v. Knick Ice Co., 110 id. 507; Byrne v. N. Y. C. & H R. R. R. Co., 83 id. 620; Hyland v. Yonkers Co., 1 id. 363; Mentz v. S. A. R. R. Co., 3 Abb. Dec. 274; Domian v. B. R. R. Co., 1 N. Y. Suppl. 334; Murphy v. Orr, 96 N. Y. 14.) Independently, however, of the question as to whether or not the deceased was sui juris, if the injury may, from the nature of the evidence, be classed as voluntary, as it well might have been, and the accident might have been avoided but for the negligence of the defendant, the previous contributory negligence of the deceased, if any might have been attributable to her, will not bar a recovery against the defendant. (Murphy v. Orr, 96 N. Y. 14; R. R. Co. v. Gladmon, 15 Wall. 401; O'Mara v. H. R. R. R. Co., 38 N. Y. 449; Greene v. Erie R. Co., 11 Hun, 333; Thurber v. Harlem R. R. Co., 60 N. Y. 330; Hyland v. Yonkers Co., 1 N. Y. Suppl. 363 ; Connery v. Slavin, Sup. Ct., Gen. Term, May, 1886, 23 Week. Dig. 545 ; Mentz v. Second Ave. R. R. Co., 3 Abb. Dec. 274 ; Kunz v. City of Troy, 104 N. Y. 344; Moebus v. Herman, 108 id. 352; Rompillon v. Abbott, Daily Reg., Sept. 8, 1888; Watson v. B. & S. A. R. R. Co., Daily Reg., Nov. 1, 1888; Judd v. Cushing, Daily Reg., Jan. 7, 1889.) The plaintiff is entitled, upon this appeal, to the most favorable inference deducible from the evidence; and, in reviewing the nonsuit, all contested questions of fact are to be deemed established in his favor. (Stackus v. N. Y. C. R. R. Co., 79 N. Y. 466; Payne v. T. & B. R. R. Co., 83 id. 574; Kunz v. City of Troy, 104 id. 344.) The court erred, therefore, in taking the question of negligence and defendant’s liability from the jury, and deciding, as matter of law, that the plaintiff was guilty of negligence and not entitled to recover. (Ihl v. Forty-second St. R. R. Co., 47 N. Y. 323 ; Mowrey v. Centl. City R. R. Co., 51 id. 666; Fallon v. C. P. R. R. Co., 64 id. 13, IS; Mangam v. B. R. R. Co., 38 id. 455; Thurber v. H. R. R. Co., 60 id. 326, 332, 333; Byrne v. N. Y. C. R. R. Co., 83 id. 622.)</p> <p>The” learned justice who presided at the trial, in dismissing the plaintiff’s complaint in this action, made the only proper disposition of this ease consistent with the controlling authorities affecting the questions at issue. (Tolman v. S., etc., R. R. Co., 98 N. Y. 198; Button v. N. Y. C. R. R. Co., 18 id. 248; Hale v. Smith, 78 id. 480, 483; Hart v. H. R. Bridge Co., 34 id., 56, 62 ; Becht v. Corbin, 92 id. 638 ; Wendell v. N. Y. C. R. R. Co., 91 id. 420, 427; Nolan v. N. Y., L. E. & W. R. R. Co., 22 N. Y. W. Dig. 61; Cordell v. N. Y. C. R. R. Co., 75 N. Y. 332, 333 ; Warner v. N. Y. C. R. R. Co., 44 id. 471; Reynolds v. N. Y. C. R. R. Co., 58 id. 250; Deyo v. N. Y. C. R. R. Co., 34 id. 9, 14; Wilds v. H. R. R. R. Co., 24 id. 432 ; Davenport v. Brooklyn City R. R. Co., 100 id. 632; McGrath v. N. Y. C. R. R. Co., 59 id. 470, 471; Harnett v. B. S. R. R. Co., 49 Sup. Ct. 185.) The deceased child was seven years and three or four months old. She was old enough to be held to the exercise of ordinary care in attempting to cross the street. (Penal Code, §§ 17, 18, 718, subd. 1; Moebus v. Herman, 108 N. Y. 353; Wendell v. N. Y. C. R. R. Co., 91 id. 420; Motel v. S. A. R. R. Co., 99 id. 632; Flood v. B. N. Y. P. R. R. Co., 23 N. Y. W. Dig. 501; Tolman v. S. R. R. Co., 98 id. 202; Murphy v. Orr, 96 N. Y. 14.) The contributory negligence of the .child was very clear. (Wendell v. N. Y. C. R. R. Co., 91 N. Y. 428; Davenport v. B. C. R. R. Co., 100 id. 632; Belton v. Baxter, 54 id. 247; Barker v. Savage, 45 id. 191-194; Gorton v. E. R. Co., Id. 664; Ernst v. H. R. R. R. Co., 35 id. 9; 39 id. 61; Havens v. E. R. Co., 41 id. 296; Davis v. N. Y. C. R. R. Co., 58 id. 248; Salter v. U., etc., R. R. Co., 75 id. 276; Steves v. O. R. R. Co., 18 id. 423; Stackus v. N. Y. C. R. R. Co., 7 Hun, 561; Powell v. N. Y. C. R. R. Co., 23 N. Y. W. Dig. 107; Wilcox v. R., etc., R. R. Co., 39 id. 358; Griffen v. N. Y. R. R. Co., 40 id. 34; Harty v. N. J. C. R. R. Co., 42 id. 473 ; Sutherland v. N. Y. C. R. R. Co., 9 J. & S. 17, 29; Weber v. N. Y. C. R. R. Co., 58 N. Y. 455 ; Cordell v. N. Y. C. R. R. Co., id. 332; Connelly v. N. Y. C. R. R. Co., 88 id. 346; 22 N. Y. Week. Dig. 61; 36 Hun, 643.) It was the undoubted duty ■ of the plaintiffs child, before attempting to cross defendant’s railroad tracks, to stop, to look and to listen. The existence of the track was a warning of danger. (Sutherland v. N. Y. C. R. R. Co., 9 J. & S. 17-29; McGrath v. N. Y. C. R. R. Co., 59 N. Y. 470; Mitchell v. N. Y. C. R. R. Co., 2 Hun, 538; Young v. N. Y., L. E. & W. R. R. Co., 107 N. Y. 504, 505 ; Davis v. N. Y. C. & H. R. R. R. Co., 47 id. 401; Woodward v. N. Y., L. E. & W. R. R. Co., 106 id. 369; Davenport v. B. C. R. R. Co., 100 id. 632.) Plaintiff’s case was fatally defective on account of the total failure to prove that the child- took any precaution whatever to avoid danger from approaching cars as she was bound to do. There is no presumption that the child was non sui juris. (Moebus v. Hermann, 108 N. Y. 353; Thurber v. H. B., etc., R. R. Co., 60 id. 333; Kunz v. City of Troy, 104 id. 351.)</p>

This action was brought to recover damages for personal injuries alleged to have been caused by defendant’s negligence. On July 27, 1883, plaintiff was a passenger upon a train on defendant’s road from Lewiston to Watertown. He took a seat in a passenger car, but desiring to smoke, and there being no smoking car on the train, he went forward into the baggage car.

' Appeal from judgment of the General Term of the Superior Court of the city of ¡New York, entered upon an order made June 7, 1887, which affirmed a judgment in favor of defendants, entered upon an order nonsuiting plaintiffs on trial. The nature of the action and the material facts are stated in the opinion. If diligence is proved, but delay results from perils and dangers of navigation, the charterers are still bound by their contract.

<p>Appeal from judgment of the General Term of the 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 verdict and an order denying a motion for a new trial.</p> <p>The nature of the action and the facts are sufficiently stated in the opinion.</p> <p>There were no acts done which did away with the necessity of refiling the chattel mortgage to make it good in law; the plaintiff’s possession was merely a formal paper one and merely constructive, and was not actual or open. (Laws of 1833, chap. 279 ; 3 E. S. [7th ed.] 2249; Laws 1873, chap. 501; Laws 1879, chap. 418.) The statute, in order to do away with the necessity of refiling, requires a change of possession to the exclusion of the mortgagor from the control, management, or participation in the management of the mortgaged property. (Steele v. Benham, 84 N. Y. 634, 640; Hale v. Sweet, 40 id. 97; Porter v. Parmley, 52 id. 185; E'y v. Carnley, 19 id. 496; Thompson v. Van Vechten, 27 id. 568; Fraser v. Gilbert, 11 Hun, 634; Flagg v. Pierce, 58 N. H. 348; Jones on Chat. Hort. § 185; C. P. P. & M. Co. v. Damon, 48 Hun, 509 ; Spotten v. Keeler, 12 N. Y. S. R. 385 ; Dutcher v. Swartwood, 15 Hun, 31; Stimson v. Wrigley, 86 N. Y. 332; Swiggett v. Dodson, 17 Pac. Rep. 504.) The agreement-for the use of the property, impliedly entered into upon the making of the mortgage, followed by the disposition of the property as shown, with the knowledge and consent of the plaintiff, is inconsistent with the purpose of security, and makes all claims to the property arising from the mortgage in the plaintiff, fraudulent in law. (Twyne’s Case, 3 Coke, 80; 1 Smith’s L. C. 1; Potts v. Hart, 99 N. Y. 168; Southard v. Benner, 72 id; 424; Smith v. Cooper, 27 Hun, 565; Q. & N. B. Co. v. Hart, 48 id., 393; C. P. P. Co. v. Damon, Id. 509; Sperry v. Baldwin, 46 id. 120 ; Edgell v. Hart, 5 Seld. 213; Gardner v. McEwen, 19 N. Y. 123 ; Brackett v. Harvey, 91 id. 214; Griswold v. Sheldon, 4 id. 581; Ford v. Williams, 13 id. 577; Southard v. Pickney, 5 Abb. N. C. 184; Mittnacht v. Kelley, 3 Abb. Ct. App. Cas. 301; City Bank v. Westbury, 16 Hun, 458; Wagner v. Jones, 7 Daly, 375; 77 N. Y. 590; Robbins v. Parker, 3 Metc. 117; Peiser v. Peticolas, 50 Tex. 638; 32 Amer. Rep. 621; Collins v. Meyer, 16 Ohio St. 547; Freeman v. Rawson, 5 id. 1; Horton v. Williams, 21 Minn. 187; Anderson v. Patterson, 25 N. W. Rep. 541; Wilson v. Voight, 13 Pac. Rep. 726 ; Brasher v. Christopher, 15 id. 403.) A good consideration is not sufficient to rebut the presumption of fraud; but the consideration must have been in connection with circumstances to show the mortgage was intended as a valid security, and to have been made in good faith, and to show the absence of intent to defraud. (Griswolds v. Sheldon, 4 N. Y. 581; Hanford v. Artcher, 4 Hill, 271; Doane v. Eddy, 16 Wend. 524; Randall v. Cooke, 17 id. 53; Randall v. Parker, 3 Sandf. 69; Smith v. Cooper, 27 Hun, 565 ; Fonda v. Gross, 15 Wend. 628; Stimson v. Wrigley, 86 N. Y. 332; (Gloat v. Rees, 20 Barb. 26 ; Dutcher v. Swartwood, 15 Hun, 31; Jones on Chat. Mort. § 338; Wheeldon v. Wilson, 4 Me. 1; Hollacher v. O’Brien, 5 Hun, 277; Marston, v. Vultee, 8 Bosw. 129; Wood v. Lowery, 17 Wend, 492; 3 R. S. [7th ed.] 2328, § 5.) Where there is no material and pertinent evidence tending to prove good faith in addition to consideration, it is a question of law. (Coleman v. Burr, 93 N. Y. 31; Griswold v. Sheldon, 4 id. 581; Edgell v. Hart, 9 id. 213 ; Randall v. Parker, 3 Sandf. 69.) The execution of the written lease hy Baker, as receiver, to the plaintiff, ■ did not confer any rights upon the plaintiff. . (Bunn v. Daly, 24 Hun, 526 ; Tinkey v. Langdon, 13 N.Y.W.D. 384; Albany City Nat. Bk. v. Gaynor, 67 How. 421; Petition of Inglehart, Receiver, etc., 1 Sheldon, 514; Scott v. Elmore, 10 Hun, 68; Chautauqua County Bank v. Risley, 19 N. Y. 369; Bostwick v. Menck, 40 id. 383; Du Bois v. Cassidy, 75 id. 298-302; High on Receivers, § 553; Pomeroy’s Eq. Juris. § 1331; Code Civ. Pro. §§ 1440, 1451; 2 R. S. part 3, chap. 6, tit. 5, §§ 45, 46, 49, 50, 51, 55, 56.) The receiver in this case acquired no interest in the real estate, not having tiled the bond required by law. (Banks v. Potter, 21 How. 469 ; Conger v. Sands, 19 id. 8; Johnson v. Martim, 1 T. & C. 504; Code Civ. Pro. § 2468; Harris v. Durkee, 5 Civ. Pro. Rep. 376; R. S. [7th ed.] 2216, 2218, §§ 4, 9, 15, 16; Du Bois v. Cassidy, 75 N. Y. 298; Wright v. Nostrand, 94 id. 31; 98 id. 669 ; West v. Fraser, 5 Sandf. 565; Lottimer v. Lord, 4 E. D. Smith, 185; Wilson v. Allen, 6 Barb. 542; Morgan v. Potter, 17 Hun, 403; Tyler v. Willis, 83 Barb. 327; Waldron v. McComb, 1 Hill, 111; McComb v. Waldron, 7 Hill, 335 ; Ives v. Davenport, 3 id. 373 ; Burdick v. Post, 12 Barb. 184; Perry on Trusts, § 786 a; Nicholson v. Leavitt, 6 N. Y. 510; Porter v. Williams, 9 id. 142; Wilson v. Robertson, 21 id. 587; Gates v. Andrews, 37 id. 657.) A sale by a receiver unauthorized by law confers no title upon a purchaser; it is void. (High on Receivers, § 191 ; State v. Johnson, 13 Fla. 33; Hackley v. Draper, 4 T. & C. 614; Bergen v. Carman, 79 N. Y. 146.)</p> <p>If plaintiff had no title to the property in question, then the • title was in the receiver, and he had no' leviable interest therein. FTo valid levy could be made without leave of the court. (Walling v. Miller, 108 N. Y. 173-177; Code of Pro. § 298.) Title was vested in the receiver to the personal property subject to the lien of the mortgage. (Porter v. Williams, 9 N. Y. 142; Wing v. Disse, 15 Hun, 190; Mamning v. Evans, 19 id. 500; Fessenden v. Woods, 3 Bosw. 550.) The plaintiff being in possession of the property under a foreclosure.of her mortgage, with the knowledge and consent of the receiver, had the right to maintain an action for its conversion, regardless of who was the owner. (Cook v. Howard, 13 Johns. 276-284; Hoyt v. Van Alstyne, 15 Barb. 568; Hurd v. Cools, 75 N. Y., 454-460.) The mortgagor had a right to make the mortgage, and it was a continuing security. (Miller v. Lockwood, 32 N. Y. 293; Brown v. Keifer, 71 id. 610.) The plaintiff had a valid claim against the mortgagor on the promise made by him to a third party for a full and valid consideration to pay her this amount, and had he failed to do so she could maintain an action against him. (Lawrence v. Fox, 20 N. Y. 268.) The inserting of Babbitt’s claim in the mortgage was not only securing a valid debt, but was a proper thing to do under the circumstances; but, even if invalid, it would not in any way affect the rights of the other mortgagees, they being separate claims. (Smith v. Post, 1 Hun, 516-518.) The question of intent to defraud was purely for the jury. (S. C. P. Co. v. Wing, 85 N. Y. 421.) All equity of redemption was extinguished by a sale of the property by the mortgagee. (Bragleman v. Dane, 69 N. Y. 69.) After taking possession under such foreclosure sale she had a right to do with said property as she saw fit. (Thomas on Mort. 445.) The receiver’s bond was operative as against parties when acted on by the judge, and no person but the judgment-debtor could avail himself of an irregularity. ( Underwood v. Sutliff, 10 Hun, 453; Richards v. Allen, 3 E. D. Smith, 399 ; Tyler v. White, 33 Barb. 327; Wright v. Nostrand, 94 N. Y. 31.) After enjoying benefits conferred by the lease plaintiff could not dispute its validity or her liability under it to pay rent. (93 N. Y. 609-618.) The question who was in possession of the farm and personal property was a question of fact to be determined by the jury on the evidence. (Alexander v. Hard, 64 N. Y. 228; Martin v. Rector, 101 id. 77; Thomas on Mort. 480; Tollman v. Smith, 39 Barb. 390; Bragleman v. Dane, 69 N. Y. 69; Allen v. Cowan, 23 id. 502, 505 , Porter v. Parmly, 52 id. 185, 188; 2 Keyes, 218; 47 N. Y. 423 ; Steel v. Benham, 84 id. 634.) The fact that the property was used on the farm up to the time of the foreclosure, and some of the grain and hay fed to the cattle mortgaged, would not render the mortgage fraudulent as against creditors in the absence of proof that it was pursuant to an agreement between the parties. (Frost v. Warren, 42 N. Y. 204; Chatham Bk. v. O'Brien, 6 Hun, 231.) This is a question of fact for the jury, and the intent and understanding of the mortgagee is the test of the validity of the mortgage and not that of the mortgagor. (Stevens v. Gage, 79 N. Y. 102; 2 R. S. 137, § 5.) The other mortgagees, on being notified of the giving of the mortgage, approved of it, and that had the same effect as if they knew of it at or prior to the making. (Shrader v. Barker, 65 Barb. 608-615; Brown v. Platt, 8 Bosw. 324-330.) Where parties stand in the relation of husband and wife, parent and child, it is not surprising that their dealings are not kept in a business-like manner as between strangers, and such omission is not' sufficient to overcome the account. (Spencer v. Ayrault, 10 N. Y. 205 ; 85 id. 421.) The charge for services of the infant daughter was proper. (Fort v. Goodimg, 9 Barb. 371-375 ; Canover v. Coaker, 3 id. 115 ; Frost v. Warren, 42 N. Y. 204.)</p>

preme Í order ji favor Appeal from judgment of the General Ter Court in the third judicial department, ente made hTovember 29, 1886, which affirmed a of defendants, entered upon the report of a pointed fects of uted by ¡ and to I lion. This action was brought by plaintiff, as r The outside was reduced to writing by learned counsel a: it, which Id within an hour from the time it was made, became a part of the transaction, and its effect cannot be disregarded.

The plaintiff alleges in the complaint its proper incorporation under an act of the legislature of this state; that the defendant is a corporation created under the laws of Hewr Jersey; that on the 14th day of May, 1845, the defendant issued a policy of insurance on the life of Archibald T. Finn, in the amount of $5,000, for the sole use of his wife Jane E. L. Finn, in which it agreed to pay to her, her executors, administrators or assigns, after the death of Archibald T.…

These proceedings were by certiorari to review assessments of certain real estate belonging to the petitioner, used for brick manufacture, situate in the town of Haverstraw. At the time specified in the notice published by the assessorsf or hearing grievances an attorney appeared for the petitioners before the assessors and asked to have the assessments reduced.

This action was brought by plaintiffs, as judgment-creditors of defendant Tuska, to vacate a judgment obtained against him by defendants Herman.

The receiver was not discharged as to this claim so as to end this proceeding, the defendant never haying had notice of any application for the receiver’s discharge, although they were prosecuting their case at that time. (High on Receivers, § 848; Woodruff v. Jewett, 37 Hun, 205; Miller v. Loeb, 64 Barb. 454; Whitney v. N. Y. & A. R. R. Co., 32 Hun, 164 ; People v. Nat. Trust Co., 82 N. Y. 283; Moore v. Higgins, 27 Daily Reg. 57; 20 Wkly.

<p>Where the complaint in an action to recover possession of several chattels contains but one count and the answer sets up several defenses, some covering the whole property, others applying only to a portion thereof, and both parties succeed as to part of the property replevied, the defendant is not entitled to costs.</p> <p>The right to costs in such cases is governed exclusively by the provision of the Code of Civil Procedure (§ 3234), which provides that in an action specified “ wherein the complaint sets forth separately two or .more causes of action, upon which issues of fact are joined, if the plaintiff recovers upon one or more * * * and the defendant upon the other or others, each party is entitled to costs ” unless a certificate, as specified, is given, and under this provision the right of defendant to costs depends upon the condition that the plaintiff has, by this complaint, set forth “ separately two or more causes of action.”</p> <p>The provision of the said Code (§ 1738) authorizing the defendant in such an action to recover for a portion of the chattels replevied, although plaintiff recovers for others, and prescribing the form of judgment, has no bearing upon the question of costs.</p> <p>The rules of pleading and practice at common law and under the Revised Statutes,' peculiar to the action of replevin, were superseded by the Code of Procedure.</p> <p>It seems that defendant may, by an offer of judgment, throw upon plaintiff the responsibility for costs of an unsuccessful litigation as to any chattel described in the complaint.</p> <p>Ackerman v. Be Lude (36 Hun, 44) overruled.</p> <p>Reversed, 51 Hun, 453.</p>

Statutes which authorize persons to do acts for the benefit of others, or for the public good, or the advancement of justice, are mandatory and not enabling, even though the enactment is that they “ may ” or “ shall, if they think fit,” or they “ shall have power.” (In re Tithe Comrs., 14 Q. B. 474; People v. Suprs., 68 N. Y. 114.) The class of orders not reviewable, because discretionary, is substantially those addressed to the favor of the court, to which the applicant has…

The facts, so far as material, are stated in the opinion Only the assessed value of real estate shall be deducted from the value of the capital stock. (Laws of 1857, chap: 456, § 3.) In the absence of ambiguity the plain and ordinary meaning of words should be adopted as expressing the intention of the law-maker, unless this would lead to false consequences and unjust decisions.

Appeal by the people from a judgment of the General Term of the Supreme Court in the Third Department, of July 3,1888, reversing a judgment entered upon a conviction, of defendant Eugene Sullivan in the Court of Sessions of Montgomery County, March 14, 1888. The facts fully appear in the opinion of the Court of Appeals.

The nature of the action and of the injunction asked for, as well as facts so far as material, are stated in the opinion. The charter of the city of Yonkers prohibits an assessment for repairs to a sewer. (Laws of 1887, chap. 19, §§ 2, 3, 16, 24.) The construction of the new mouth of the Ashburton avenue sewer through the filled in land, formerly land under water, was “ repairs ” to the sewer within the meaning of the Yonkers city charter.

Appeal by defendant, Charles Giblin, from a judgment of Oyer and Terminer of Hexv York County of June 28, ■1888, Hon. George C. Barrett presiding, entered upon a conviction of murder in the first degree. The facts sufficiently appear in the opinion of the Court ■of Appeals.

The challenge of the jurors, who were present when defendant offered to plead guilty to manslaughter in the first degree was refused by the district attorney, was improperly overruled. (People v. Greenfield, 74 N. Y. 277; People v. McQuade, 110 id. 284.) Under the Code of Criminal Procedure the People must first challenge and exhaust all their challenges as to any particular juror before the defendant exercises his right of challenge.

. Appeal from judgment of the General Term of the Supreme •Court in the first judicial department, entered upon an order made May 18, 1888, which affirmed a judgment in favor of plaintiff, entered upon a verdict, and affirmed an order denying a motion for a new trial.

<p>Appeal from order of the General Term of the Supreme Oourt in the first judicial department, made Hay 13, 1887, which reversed a judgment in favor of defendant, entered upon a trial at Special Term and ordered a new trial.</p> <p>This action was brought by plaintiff as assignee of the Penn Bank. The complaint alleged, in substance, that said bank transferred to defendant, the Fourth National Bank, a large amount of negotiable securities, consisting of promissory notes .and bills of exchange, as security for a loan; that said defendant collected the same, realizing a sum in excess of the loan, which it refused to pay over to plaintiff as assignee; that defendant Davidson, late sheriff, etc., made a claim to said fund; that thereupon, on application of the bank, defendant, said Davidson, was brought in as a party defendant; plaintiff claimed judgment for the excess remaining after canceling the loan. Defendant Davidson claimed the fund in question by virtue of an alleged levy under a warrant of attachment against the Penn Bank, delivered to hjm as sheriff, which levy was made by serving upon and leaving with the defendant bank a certified copy of the warrant of attachment and therewith a notice showing the property levied upon, and demanded .a certificate as required by the Code of Civil Procedure.</p> <p>The facts are sufficiently stated in the opinion.</p> <p>An attachment reaches and becomes a lien upon such debts as, at the time of the levy, belong to the debtor by a legal title and for the recovery of which he could maintain an action at law. (Thurber v. Blanck, 50 N. Y. 80; Castle v. Lewis, 78 id. 137; Anthony v. Wood, 96 id. 180 ; Hankinson v. Page, 31 Fed. Rep. 184.) Negotiable instruments transferred and delivered to a creditor ■of the holder as collateral security for a debt are pledged, not mortgaged. (McLean, v. Walker, 10 Johns. 471; Garlick v. James, 12 id. 149 ; White v. Platt, 5 Denio, 269 ; Wheeler v. Mewbould, 16 N. Y. 392; Lewis v. Graham, 4 Abb. Pr. 106.) Where property is pledged the title remains in the pledgor. (Bryan v. Baldwin, 52 N. Y. 232; Lawrence v. Maxwell, 53 id. 19; Stowell v. Otis, 71 id. 36, 39 ; Brownell v. Hawkins, 4 Barb. 493; Patterson v. Perry, 10 Abb. Pr. 82, 92; Farwell v. I. & T. Bk., 90 N. Y. 483, 488, 490; Wheeler v. Newbould, 16 id. 398; Cont. Bk. v. Townsend, 87 id. 8; Boyd v. Cummings, 17 id. 101; Grocers’ Bk. v. Penfield, 69 id. 502; Bank v. Vanderhorst, 32 id. 559; Wilson v. Little, 2 id. 443, 447.) Instruments for the payment of money are subject to attachment, and a levy of an attachment thereon is deemed a levy upon and seizure of the debt represented thereby. (Code, § 648; McGinn v. Ross, 11 Abb. Pr. [N. S.] 20; 33 Supr. 346; Rushton v. Ross, 64 Pa. St. 43.) The Code provides for the attachment of dioses in action other than instruments for the payment of money. (Code, §§ 684, 649.) As this right to receive the surplus collected was a chose in action of a legal nature it came within this provision of the Code. (Dunlop v. Patterson Ins. Co., 74 N. Y. 145, 148, 149; First Nat. Bk. v. Dunn, 97 id. 149; R. L. Works v. Kelley, 88 id. 234; Patterson v. Perry, 5 Bosw. 518; 10 Abb. Pr. 82; Waverly Coal Co. v. McKennan, 3 East. Rep. 404; Brownell v. Carnley, 3 Duer, 9; Kuhlman v. Orser, 5 id. 242; Pierce v. Carleton, 12 Ill. 358; Lightner v. Steinagel, 33 id. 510; Kneeland on Attachments, § 316.) When the negotiable instruments are already pledged for a debt they come within the description of personal property incapable oE manual delivery. (Code, § 649, subd. 3; Clarke v. Goodridge, 41 N. Y. 210, 214; Brownell v. Carnley, 3 Duer, 9.) In any event, the Penn Bank had a contract right to receive from the American Exchange Bank any surplus collected. This is the right which is reached and held by an attachment against the pledgor. (Dunlop v. Patterson Ins. Co., 74 N. Y. 145 ; Brownell v. Carnley, 3 Duer, 9; Patterson v. Perry, 5 Bosw. 578 ; 10 Abb. Pr. 82, 96.)</p> <p>If, at the time the sheriff left a copy of the warrant with the American Exchange National Bank, the legal title to the notes and bills was in the Penn Bank, no lien was acquired, because he did not take the same into his “ actual custody.” (Code Civ. Pro. §§ 648, 649; Anthony v. Wood, 96 N. Y. 180; Stief v. Hart, 1 Com. 20 ; Bakewill v. Ellsworth, 6 Hill, 484; Code Civ. Pro. § 1412.) The legal title to the negotiable paper was in the American Exchange National Bank at the time the sheriff served the copy of the warrant and notice, and, therefore, no lien was effected. (Bank of N. Y. v. Vanderhorst, 32 N. Y. 553, 557; Bank of Chenango v. Hyde, 4 Cow. 567; Bank of Rutland v. Buck, 5 Wend. 66; Boyd v. Cummings, 17 N. Y. 101; Grocers’ Bk. v. Penfield, 69 id. 502; Con. Nat. Bk. v. Townsend, 87 id. 8; Wheeler v. Newbould, 16 id. 399 ; 1 Daniel on Negotiable Inst. § 833; Story on Bailments, §321; Wilson v. Little, 2 Coms. 446, 447; 2 Parsons on Contracts [6th ed.] 446, 447; Jones on Chattel Mort. § 4.) The legal title being in the American Exchange National Bank at the time when the warrant was served, the rights or interest of the Penn Bank, in respect to the securities, were purely •equitable and contingent, and no lien can be obtained upon ■such rights under a warrant of attachment. (Lawrence v. Bk. of Republic, 35 N. Y. 320; Thurber v. Blanck, 50-id. 80; Anthony v. Wood, 96 id. 180; Drake on Attachments, §§ 547, 551.) The case at bar is one for -which the legislature has not made provision, and whether such omission was wise or unwise, it is not within the province of the court to inquire. (Republic of Honduras v. Oceanic Co., 112 N. Y. 315.)</p>

Defendant having accepted the benefit of the order of April fifteenth forever estopped himself from disputing its propriety in any respect. (Smith v. Rathbun, 75 N. Y. 112; Brady v. Donnelly, 1 id. 126; Marvin, v. Marvin,, 11 Abb. [N. S.] 97; Bennett v. Van Syckel, 18 N. Y. 481,; Grattam, v. Met. L. Ins. Co., 80 id. 281, 290; Carll v. Oakley, 97 id. 633; Platt v. Cohoes, 8 Abb.

■ This action was brought against defendant, as receiver of the Erie Railway Company, to compel him to pay into the Metropolitan Rational Bank, of Rew York, the amount of interest coupons, matured and to mature, on certain mortgage bonds issued by the Erie and Grenesee Valley Railroad Company, which road had been leased by plaintiff to the Erie Railway Company, it assuming the payment of said coupons. The material facts are stated in the opinion.

This action was upon a policy of insurance issued by the Watertown Fire Insurance Company, of which company the defendant is receiver, to the plaintiff, upon his “two-story dwelling-house.” The material facts are stated in the opinion. It is an error of law to find a material fact, when there is a total absence of evidence to sustain it, and that error in law is reviewable in this court.

<p>■The will of O. contained a direction to the executrix to sell the testator’s real estate within five years of his decease for the purpose of paying debts and legacies. By a subsequent clause she was authorized to sell in lots or parcels, or altogether, in her discretion. The rents and profits of the land were given to her in her individual right so long as it remained unsold. In this action, brought by the executrix, as such, the complaint set out the will, .and the power of sale contained therein, described the land in dispute, and averred that the executrix had commenced negotiations for a sale of a parcel of the land, which was described, to one S.; that defendant was despoiling this parcel of its timber in spite of notice to discontinue, claiming that the testator, his father, had agreed to give him the land; that he was dissatisfied with the will and trying to intimidate S. and prevent a sale and embarrass plaintiff in performing her duty as executrix. An injunction was asked to restrain defendant’s interference with the land, and treble damages for the injury done was demanded. The action came on for trial at a circuit and Special Term before a jury. Treble damages were waived, and the jury were directed to find for plaintiff: a specific amount as damages. Ho question was raised by either party as to the mode of trial, Reid, that there was no equitable conversion by the will of the land into personalty at the death, as plaintiff was entitled • to possession and the rents and profits until a sale; hut that the action should he regarded, not as one for trespass, hut as one in equity, to quiet the title and settle the right of the executrix to sell the land and to remove an obstruction to the performance of her duty; and that as such it was maintainable by plaintiff as executrix.</p> <p>Proof must he definite and certain to establish a parol gift of land which will serve as a basis for that equitable relief or protection which dispenses with a writing and disregards the statute of frauds.</p> <p>Where possession and the making of improvements are relied upon to sustain such a gift of land, possession must be clear and definite, such as would characterize the action of an owner and he inconsistent with the hypothesis of a mere license, and the improvements must be permanent, not of a temporary character, such as would naturally be erected by a tenant or licensee.</p> <p>Equity dispenses with a writing only when definite and unequivocal facts exist which point with certainty to a prior parol agreement of gift or sale, and serve to indicate its existence, and so may be taken as a substitute for the usual written evidence.</p> <p>Under a claim that the land in question had been devised to him by his father, defendant proved that, in 1866, he married and moved on to a forty-acre piece of his father’s farm, repaired an old house for his occupation, erected a barn and other outbuildings thereon. The testator gave him a quit-claim deed in 1880, accurately describing and bounding the forty acres. The testator’s will contained a devise to defendant for life, and to his heirs-at-law after his decease, of lands described as follows: “ All that piece of land that he has a quit-claim deed of from me, and that he now occupies; also a strip of land five chains wide,” etc. Defendant claimed that the phrase, “and that he now occupies,” covered a second piece, in addition to the one quit-claimed, and so covered the land in dispute. Held, untenable.</p>

<p>Where past-due interest coupons o of railroad mortgage bonds have been detached from the bonds, but are still in the hands of the owner thereof, and by the terms of the bonds the obligor has the option to redeem them, a tender, in exercise of the option, of payment of the bonds and accrued interest, on condition that said coupons and the bonds be surrendered, is valid and will stop the running of interest after the date thereof.</p> <p>While such coupons, when detached from the bonds and negotiated, are for many purposes to be considered as independent separate instruments, until negotiated or used in some way, and while in the hands of the owner of the bonds they remain mere incidents thereof, having no other or greater effect than the stipulation for the payment of interest contained in the bonds.</p> <p>One liable to pay money secured by a written instrument has the right, as a condition of tender and payment, to demand a surrender of the instrument.</p>

The nature of the relief sought in the proceeding and the material facts are sufficiently stated in the opinion. The provisions of the law of 1870 as to the $5 per dÁem for expenses was abrogated by a law passed in 1872.

The nature of the action and the facts are sufficiently set forth in the opinion. Plaintiff is entitled to take advantage of the special findings as they are wholly irreconcilable with the general conclusion, if the latter is to be supported on the theory of actual performance. (Redfield v. Redfield, 110 N. Y. 671.) The plaintiff had a right to have the plates in his book printed on any paper he saw fit, and neither the referee nor Hr.

The appeal in the case first entitled is from a judgment of the General Term of the Supreme Court in the second judicial department, entered upon an order made May 14, 1888, which affirmed a judgment dismissing the complaint entered upon trial at Special Term.

This action was brought to obtain a judicial construction of the will of Frederick P. James, who died in September, 1884, seized and possessed of real estate and personalty, and also to obtain a partition of the real estate. The material portions of the will are as follows: “ I give and bequeath to my beloved wife Julia, for her sole use, enjoyment and benefit during her life, without- restraint, deduction or interference in any manner whatever, as follows : First.

This action was brought to compel the specific performance by defendants, as executors of the will of Max Weil, deceased, of a contract made by their testator for the purchase by him of plaintiff of certain real estate. The material facts are stated in the opinion. The condition in the deed of May- 29, 1811, may not be interpreted as a covenant.

This was an action of replevin to recover certain property to which plaintiff claimed title, under and by virtue of an assignment for the benefit of creditors, executed by William C. Lawson, as'assignor, and by plaintiff, as assignee. The facts, so far as material, are stated in the opinion.

The nature of the action and the facts are sufficiently stated in the opinion. The contract was one exceeding the powers of the president and secretary, as such, to make. (F. N. Bk. v. Ocean Bk., 60 N. Y. 278, 288; T. A. R. R. Co. v. Ebling, 12 Daly, 99, 101; Alexander v. Cauldwell, 83 N. Y. 480; Queen v. S. A. R. R. Co., 35 Super. Ct. 154, 159 ; Nat.

This action was' brought to recover possession of one hundred and forty-six reams of paper. The material facts are stated in the opinion.

<p>After judgment in this action for the amount claimed by plaintiff for goods sold to defendant in the carrying on of a business as directed by the will of his testatrix, he being insolvent, which judgment directed defendant, as executor, to pay the amount out of the property of the estate in-his hands, an order was issued, on motion of plaintiff, appointing a receiver and directing defendant to deliver the whole estate in his hands, as executor, to such receiver, who was required to pay plaintiffs’ judgment, and to hold the balance of the estate subject to the further order of the court. It was shown, in opposition to the motion, that at the time of the death of the testatrix she owed a large amount of debts and her estate was insolvent. Held, that the order was erroneous; that plaintiffs could only collect their judgment in the modes prescribed by law, i. e., upon settlement of the estate in Surrogate’s Court, or by proceedings in that court under the Code of Civil Procedure (§§ 1835, 1836, 3717, 3718).</p> <p>It seems that creditors, having claims at the time of the death of a testator, are not bound by a direction in the will for the establishment or continuance of a business after the death, but have the right to have the estate applied, as soon as the forms of law will permit, upon their debts, and unless they have assented to the carrying on of the business they have the right to insist that the estate, as it existed at the time of the death, shall be used for the payment of their claims to the exclusion of debts subsequently contracted by the executors, while the creditors of the business, if it prove successful, are alone entitled to the increase.</p> <p>It seems, also, if the business was carried on by the executors with the assent of the original creditors, they and the creditors of the business are entitled to share, pro rata, in the whole estate.</p>

The nature of the action and the facts are sufficiently stated, in the opinion. The granting of the amendment to the claim by the referee, by which a certain debit item and a credit were withdrawn from the claim and agreement to refer, was unauthorized and beyond the power of the referee in this proceeding. (2 R. S. 89, §§ 36, 37 ; Townsend v. N. Y. D. Ins. Co., 4 Civ. Pro.

The nature of the action and the facts, so far as material,, are stated in the opinion. The giving of the order did not transfer to the plaintiffs any greater rights thanHerle (the drawer) had.

This action was brought to determine the rights of the parties in and to the water-power furnished by the Genesee liver at Rochester, and to restrain the- defendants from drawing from the river more.than the proportion alleged to belong to them of the water of said river. The material facts are stated in the opinion. The deed from William H. Ward to Whitney did not take effect as against •the parties to the agreement of 1866.

The defendant, John Andrews, was indicted in the Court of Sessions of Cayuga County, Hon. Marcus Lyost, County Judge, presiding, for selling strong and spirituous liquors to be drank on the premises without having a license. From the order entered June 5, 1888, upon the conviction, the defendant appealed to the General Term of the Supreme Court in the Fifth Department. The facts appear in the opinion of the General Term of the Supreme Court and of the Court of Appeals.

<p>Appeal from judgment of the General Term of the Supreme Court in the third judicial department, entered upon an order made Hay T, 1889, which affirmed a judgment of the Franklin County Court of Sessions overruling a demurrer to an indictment for selling liquor without a license. .</p> <p>The defendant was indicted in the Franklin County Court of Oyer and Terminer in September, 1888. The indictment contained two counts; the first count charged, in substance, that on the 1st day of September, 1888, the defendant did sell, in quantities less than five gallons, to one Chase, strong and spirituous liquors, etc., without having obtained a license therefor; the second count charged that the defendant on the 1st day of September, 1888, and at the time aforesaid, did, at his house, etc., sell to one Chase strong and spirituous liquors, ■etc., to be drank in his house, etc., without having a license therefor. The indictment was thereafter sent to the Franklin County Court of Sessions. The defendant demurred thereto as follows:</p> <p>1. That the grand jury, by which it was found, had no legal .•authority to inquire into the crime charged, if any, by reason ■of its not being the commission of a crime within the local • jurisdiction of the county.</p> <p>• 2. That more than one crime is charged in the indictment within the meaning of sections 278 and 279.</p> <p>3. That the facts stated in the first count of said indictment -do not constitute a crime.</p> <p>4. That the facts stated in the second count of said indict-ment do not constitute a crime.</p> <p>The demurrer was overruled and the defendant adjudged ; guilty.</p> <p>The indictment charges two -crimes, if any, in violation of sections 278 and 279 of the Oode ,of Criminal Procedure. (Laws of 1857, chap. 628, § 13; Code of Prim. Tro. §§ 278,279, 323; Wood v. People, 52 N. Y. 511 j People v. McCarthy, 110 id. 309-314; People v. Wilson, 109 id. 345-351; People v. O'Donnell, 46 Hun, 361; People v. Harmon, 49 id. 558.) The first count of the indictment does not ; state facts sufficient to constitute a crime. (R. S. chap. 20, tit. 9, §§ 15, 28 ; Laws of 1855, chap. 231; Wynehamer v. People, 13 N. Y. 378 ; Green v. Shemway, 39 id. 426; M. B. of Health v. Heister, 37 id. 682; Village of Rome v. Knox, 14 How. Pr. 268, 273, 274, 277, 278; People v. Terry, 108 N. Y. 1; lyddy v. Long Island City, 104 id. 218; In re Village of Middletown, 82 id. 202; People v. Briggs, 50 id. 564; Hughson v. City of Rochester, 49 Hun, 45; Andrews v. Long, 79 N. Y. 573 ; People v. Jaehne, 103 id. 182, 195 ; People v. G. and S. Tel. Co., 98 id. 67-78; Hichman v. Pickney, 81 id. 211; Laws of 1857, chap. 628, §.§ 6, 8, 9, 13-15, 17, 18, 21, 29, 33; Foote v. People, 56 N. Y. 326; Hill v. People, 20 id. 367; People v. Hislop, 77 id. 331; People v. Cowles, 16 Hun, 577; Taylor v. City of New York, 82 N. Y. 10; V. C. C. Co. v. Murtaugh, 50 id. 317; Whitaker v. Masterton, 106 id. 277; Fitzgerald v. Quam, 109 id. 441; Curtis v. Leavitt, 17 Barb. 339; Bell v. Dole, 11 Johns. 173; Jones v. Estis, 2 id. 379; Health Dept. v. Knoll, 70 N. Y. 536; Bunnell v. Griswold, 80 id. 138; State v. Maze, 6 Humph. 17; People v. Stevens, 13 Wend. 341; People v. Brown, 16 id. 561 ; Hayes v. Davidson, 97 N. Y. 22 ; Dudley v. Mayhew, 3 id. 15 ; Bronk v. Riley, 18 N. Y. State Rep. 180 ; Newell v. People, 7 N. Y. 97; Green v. H. R. R. R. Co., 2 Keyes, 303.) The second count does not state facts sufficient to constitute a crime. (Foote v. People, 56 N. Y. 321; Hill v. People, 20 id. 363 ; People v. Krank, 110 id. 488; Jefferson v. People, 101 id. 19; People v. Hislop, 77 id. 331; Tebbetts v. Dewd, 23 Wend. 379.)</p> <p>An indictment may contain several different counts and each count allege the crime to have been committed in a way different from the way charged in the other counts. (Code Grim. Pro. §§ 278, 279 ; People v. Cole, 2 N. Y. C. R. 108; People v. Menken, 3 id. 233.) Different crimes may be charged in different counts of an indictment when the acts complained of may constitute different crimes. (People v. Infield, 1 N. Y. C. R. 146; Code Grim. Pro. §§ 275, 276; People v. Menken, 3 N. Y. C. R. 233; People v. Kelly, Id. 272; 91 N. Y. 5; 1 N. Y. C. R. 379; People v. Emerson, 6 id. 157.) The sale of spirituous liquors or wines without license in less quantities than five gallons at a time is punishable by indictment. (People v. Behan, 17 N. Y. 516 ; People v. Hislop, 77 id. 331; People v. Foote, 56 id. 321; People v. Frank, 110 id. 488.)</p>

The facts are sufficiently stated in the opinion. The person upon' whom the alleged service was made was not a “ managing agent ” within the meaning of the statute. (Brewster v. M. C. R. R. Co., 5 How. Pr. 183, 186. Flynn v. H. R. R. R. Co, 6 id. 308, 309 ; Doty v. M. C. R. R. Co., 8 Abb.

This was an application, under subdivision 6 of section 28 of chapter 140 of the Laws of 1850, as amended by sections 1 and 2 of chapter 583 of the Laws of 1880, for the appointment of commissioners to ascertain and determine the point and manner of a crossing and the compensation to be paid therefor. The petitioner and the railroad sought to be- crossed are street railroads operated in the city of Binghamton, which were incorporated under the general railroad act of 1850.

Perry, special guardian of certain infants, to the payment of taxes. The nature of the action and the facts are sufficiently stated in the opinion. The annual charges and taxes imposed on property must always be borne by the life tenants, unless the creator of the estate clearly shows a contrary intention.

The nature of the action and the material facts appear in the opinion. The papers on which the attachment was granted showed the existence of a cause of action of a kind in which attachment is permitted. (Code Civ. Pro. §§ 636, 3343, subd. 11; Palmer v. Hussey, 59 N. Y. 647; Crandall v. McKaye 6 Hun, 483.) Omission to file the complaint with the affidavit within the prescribed time did not affect the validity of the attachment.

This action was commenced December 14, 1885, by the plaintiff to obtain a divorce from the defendant, her husband, on the ground of adultery. The answer was served February 6, 1886, and the action was referred to a referee on the 29th day of April, 1886, to hear and determine the issues.

The defense was insanity, the claim being that the defendant was an epileptic, and that the alleged crime was committed while the defendant was in a condition of epileptic furor. The defendant, Richard Barber, was twenty-seven years of age, born in Billingsborough, England, came to this country •at the age of nineteen, and became a resident of the town of Ulysses, where a married aunt, the sister of his mother, had resided for many years.

<p>Appeal from order of the General Term of the Supreme Court in the first judicial department, made the first Monday of January, 1887, which reversed an order of the Special Term continuing the above proceeding in the name of the executors of the above petitioner.</p> <p>The nature of the proceeding and the facts are sufficiently stated in the opinion.</p> <p>The petitioner having paid the assessment pending the proceedings to vacate the same, his legal representatives are entitled to a revival and continuance of the proceedings for the purpose of enforcing restitution. (Purcell v. Mayor, etc., 85 N. Y. 330, 333; Pitts v. Davison, 37 id. 235; 1 Barb. Pr. 677.) The executors are aggrieved by the assessment in question. If the petitioner had lived, there is no doubt about his light to continue these proceedings after payment. (In re Hughes, 93 N. Y. 512; Purcell v. Mayor, etc., 85 id. 333; In re Phillips, 60 id. 16.) Special proceedings will be revived and continued where irreparable injury would be done unless such a course is pursued. (People ex rel. v. Comrs., 105 N. Y. 674; People v. Robinson, 29 Barb. 77; Hartings v. McKinley, 8 How. Pr. 175.) Ho mere lapse of time will absolutely defeat an application for continuance of an action in the name of the representative of a deceased party. (Evans v. Cleveland, 72 N. Y. 486.) Laches do not apply in a case like this. (Halsman v. St. John, 90 N. Y. 465; Green v. Martine, 84 id. 648 ; In re Mehrbach, 97 id. 601.)</p> <p>The executors of Courtlandt Palmer are not aggrieved by the assessment in question, and have, therefore, no right to revive and continue the proceeding. (In re Lima, 77 N. Y. 170 ; In re Hughes, 93 id. 512.) This proceeding abated on the death of the petitioner. (Code Civ. Pro. § 755 ; Hallahan v. Herbert, 57 N. Y. 409; In re Smith, 1 How. Pr. [N. S.] 64; In re Jetter, 78 N. Y. 601; In re M. S. Inst., 82 id. 142; People ex rel. Wicks v. Oswego, 2 T. & C. 431.) If it is held that under its general equity powers the court can grant relief, the laches of the executors should defeat this application. (In re M. S. Inst., 82 N. Y. 142; In re Stryker, 23 Hun, 647; Diefenthaler v. Mayor, etc., 111 N. Y. 331; Jex v. Mayor, etc., Id. 339; Coit v. Campbell, 82 id. 509; Mulready v. Hall, 2 M. L. B. 89; Newman v. Marvin, 12 Hun, 236.) This motion is analogous to an application for a writ of certiorari in respect to the effect of delay in demanding relief. (People ex rel. Waldman v. Bd. of Police, 82 N. Y. 506 ; People ex rel. v. Perry, 16 Hun, 461; People ex rel. v. Hill, 53 N. Y. 547; People ex rel. Stevens v. Bd. of Police, 24 Hun, 284.)</p>

This action was brought by plaintiff, as the heir-at-law of Catherine A. Valentine, deceased, to set aside a deed of certain premises in the city of Brooklyn from her to the defendant Herman T. Richardt, a deed of said premises from Ricliardt to the defendant. Susan A. Austin, and a mortgage thereon from said defendant to the defendant Elizabeth H. Lunt.

This action was brought to have the will of Francis B. Palmer, deceased, so far as it devises and bequeaths jiroperty to Elmer E. Palmer, canceled and annulled. The facts are sufficiently stated in the opinion. The right of Francis B. Palmer to make another will was a sacred one, entitled to the protection of the law, and he had the same right to enjoy his property until death.

Appeal by the defendant, John Greenwall, from a judgment entered upon a conviction of murder in the first degree, rendered by the Court of Sessions of Kings County, Hon. Henry A. Moore, County Judge of Kings County, presiding. The defendant was jointly indicted with Charles Miller, for the murder of Lyman S. Weeks. The indictment contained two counts.

<p>Appeal from, judgment of the General Term of the Superior Court of the city of New York, entered upon an order made May 18, 1887, which affirmed a judgment dismissing the complaint herein entered upon trial at circuit.</p> <p>This action was brought to recover damages for the alleged wrongful acts of the defendant, Jacob Van Wagenen, in procuring the settlement and discontinuance of a former action brought against him by his co-defendants.</p> <p>The facts are sufficiently stated in the opinion.</p> <p>An answer having been interposed to the complaint, if the facts alleged constituted a cause of action, either at law or in equity, the plaintiff was entitled to recover judgment, accordingly, without reference to the propriety of his claim for damages or of his demand for relief. (Emery v. Pease, 20 N. Y. 62, 64, 65 ; N. Y. I. Co. v. Ins. Co., 23 id. 357; Armitage v. Pulver, 37 id. 494; Winstead Bk. v. Webb, 39 id. 328; Wright v. Wright, 54 id. 437; Williams v. Slote, 70 id. 601, 602; Code Civ. Pro. §§ 519,1207; Murtha v. Curley, 90 N. Y. 372, 377; Wetmore v. Porter, 92 id. 77; Bell v. Merryfield, 109 id. 202; Chat field v. Simonson, 92 id. 216; Hemmingway v. Poucher, 98 id. 281; Greentree v. Rosenstock, 61 id. 583; Marie v. Garrison, 83 id. 14, 23; Lorillard v. Clark, 86 id. 385; St. John v. Northrup, 23 Barb. 26, 30; Cody v. Allen, 22 id. 388, 394, 395; In re Wall, 18 N. Y. 119.) The original cause of action having arisen on contract, and defendant Van Wagenen having had notice of the agreement and the assignment to this plaintiff, the settlement was in fraud of his rights. (1 Rumsey’s Practice, 30, 34; Rooney Case, 18 N. Y. 368, 369; Ely v. Cooke, 28 id. 365; In re Knapp, 85 id. 293-298 ; Marshall v. Meech, 51 id. 140; In re Coughlin, 71 id. 443; Williams v. Ingersoll, 89 id. 510; Dimick v. Cooley, 3 Civ. Pro. Rep. 142; In re Risely, 83 N. Y. 318; In the Matter of Williams, 89 id. 508; Wilber v. Baker, 24 Hun, 24; Forstman v. Schulting, 35 id. 504; McGregor v. Comstock, 28 N. Y. 237.) If notice of the attorney’s lien has been given to the adverse party, and the latter disregards the notice and pays the judgment, or compromises it with the client, such adverse party is liable to the attorney for the amount of his lien. (1 Jones on Liens, § 204; Weeks on Attorneys, § 379; Wharton on Agency, § 627; Martin v. Hawks, 15 Johns. 405; Wilkins v. Batterman, 4 Barb. 47, 48 ; Adams v. Fox, 40 N. Y. 577; Schackelton v. Hart 20 How. 39; Kip v. Rapp, 20 How. [N. S.] 169; Stahl v. Wadsworth, 10 State Rep. 228 ; Heartt v. Chipman, 2 Aik. 162; Hobson v. Watson, 34 Me. 20; McKenzie v. Wardwell, 61 id. 136; Fairbanks v. Sargent, 104 N. Y. 108.) The gravamen of the action is a legal or equitable fraud practiced upon him as distinguished from fraud in fact, and the additional and unnecessary allegations of conspiracy and collusion do not change the nature of the action. (Graves v. Waite, 59 N. Y. 156; Ross v. Terry, 63 id. 613, 614; Neftel v. Lightstone, 77 id. 96; Ledwich v. McKim, 53 id. 308, 316 ; Shannon v. Kims, 83 id. 245 ; Greentree v. Rosenstock, 61 id. 583; Austin v. Rawdon, 44 id. 63; Conaughty v. Nichols, 42 id. 83; Segelken v. Meyer, 94 id. 474; Brackett v. Gris-wold, 112 id. 454, 466, 467 ; Salisbury v. Home, 87 id. 128 ; McMichael v. Kilmer, 76 id. 36; Bonus v. Quigley, 59 id. 265; Elwood v. Gardner, 45 id. 349; Ross v. Mather, 51 id. 108; Walter v. Bennett, 16 id. 250; Townsend v. Hendricks, 40 How. 143.) It being conceded that the material facts stated were sufficient, if properly alleged, to .authorize an action by the assignee on the contract, it necessarily follows that with the additional elements of fraud, the ■same facts would be sufficient to support an action ex deUeto. ■ (Verplanck v. Van Buren, 76 N. Y. 247; Quimby v. Strauss, 90 id. 664; Place v. Minister, 65 id. 89 ; Snow v. Saddlemire, 8 Wend. 676.)</p> <p>In order to lay the foundation of any civil action of damage for a conspiracy the ■acts complained of must have been illegal. (B. L. O. Co. v. Everest, 30 Hun, 588; Tuttle v. Village of Cortlandt, 21 Week. Dig. 528; Compton v. Whitehouse, 48 Supr. Ct. 208 ; Pulver v. Harris, 52 N. Y. 76; Coughlin v. N. Y. C. & H. R. R. R. Co., 71 id. 448; Stahl v. Wadsworth, 13 Civil Pro. Rep. 32.) While under the authorities the settlement was a valid and legal exercise by the plaintiff of his rights as master ■of the suit, its only -validity was between the parties. . The attorney had the right to continue the litigation for the purpose of enforcing his lien. This settlement was no injury to it. (Coughlin v. N. Y. C. &. H. R. R. Co., 71 N. Y. 448; Tullis v. Bushnell, 65 How. 465; McCabe v. Fogg, 2 Mon. L. B. 71; Foreman v. Edwards, 14 Week. Dig. 408.)</p>

The nature of the action and the facts are sufficiently stated in the opinion. As matter of law the account of December 26, 1884, was not a stated account. (Quincy v. White, 63 N. Y. 370, 379; Lockwood v. Thorne, 18 id. 285.) The action is brought on account stated. If the plaintiffs fail to prove an account stated, they could not recover. If the jury had found, as matter of fact, that there wás not an account stated, the verdict should have been for no cause of action.

<p>Under an executory contract for the sale and delivery of goods of a specified quality, in the absence of an express warranty, the quality is a part of the description of the goods and the vendor is bound to furnish articles corresponding therewith.</p> <p>If articles of an inferior quality are tendered, the purchaser is not bound to accept, but if he does, he is, in the absence of fraud, and so far as defects, open and ascertainable at the time, are concerned, deemed to have assented that they correspond with the description and is concluded from subsequently questioning this.</p> <p>This imposes upon the vendee the duty of inspection before acceptance if he desires to save his right in case the goods are of inferior quality.</p> <p>In such case it seems there is no warranty of quality which survives acceptance, so far as visible or ascertainable defects are concerned, and the vendee cannot reject the goods after acceptance or recover damages for inferior quality.</p> <p>Where goods are ordered of a specific quality, which the vendor undertakes to deliver to a carrier, to be forwarded to the vendee at a distant place, to be paid for on arrival, the right of inspection, in the absence of any specific provision in the contract, continues until the goods are received and accepted at their ultimate destination.</p> <p>The carrier is not the agent of the vendee, to accept the goods as corresponding with the contract, although he may be his agent to receive and transport them.</p> <p>It is the duty of a purchaser to act promptly, in examining goods sent upon his order, to see whether they comply therewith and to give prompt notice to the vendor of their rejection, if found defective, if he intends to avail himself of that remedy.</p> <p>The vendee has, however, a reasonable time for examination, and what is a reasonable time is generally a question of fact, to be determined by a jury upon all the circumstances, including as well the situation and liability of injury to the vendor from delay, as the convenience and necessities of the vendee.</p> <p>The purchaser of goods under an executory contract, where payment and acceptance are by the contract concurrent and dependent obligations, cannot, in the absence of fraud or deceit on the part of the vendor, on delivery of the goods pay the purchase-money and subsequently rescind the contract and reject the goods for defects ascertainable on examination.</p> <p>The contract, however, may provide that payment shall be made in advance of delivery and acceptance, and. when it does, payment will not preclude the purchaser when delivery is tendered, from the right of examination and of rejection if the goods do not conform to the contract.</p> <p>Plaintiffs, importers and dealers in iron in the city of New York, entered into a contract in writing with defendants, who were engaged at Liverpool in the business of buying and selling iron manufactured by others, for the delivery of two descriptions of iron to be shipped at Liverpool, i. e., sheets and hoops to be thereafter manufactured according to specifications to be furnished by plaintiffs, the quantities, qualities and prices of each being specified. These specifications directed that the sheets should be forwarded in three separate shipments and the hoops in three or four. Defendants were to deliver the iron “free on board” at Liverpool, and plaintiffs were to pay for it by bills of exchange at sixty days on delivery to them of the shipping documents in New York. The plaintiffs, on arrival of the first shipment of hoops, but before inspection, made payment on delivery of the shipping bills, and paid the custom duties on landing of the goods. Held, that such payments did not conclude plaintiffs from denying an acceptance; that the payment of the duties was requisite before plaintiffs could take possession or exercise any control over the property, and before any opportunity of examination; that the event upon which plaintiffs were bound under the contract to pay, i, e., delivery of the shipping documents might, and in ordinary course of events would, precede delivery of the goods; and that, therefore, a payment on presentation of said documents was not inconsistent with, and did not preclude, plaintiffs from subsequently rejecting the goods if found defective on examination.</p> <p>Also, held, that the contract was not entire and indivisible in its nature; and that acceptance of the sheets did not preclude plaintiffs from rejecting the hoops.</p> <p>After plaintiffs had rejected the hoops included in the first shipment they asked'to defer payment for those which came in the two succeeding shipments until examination, but, upon defendants refusing to accede to this and demanding payment, made the payment with'a reservation of the right to reject. Held, that the payment did not deprive them of the right of examination and rejection.</p> <p>Defendants set up as a counter-claim the refusal of plaintiffs to accept a subsequent shipment of hoops. They did not prove, and stated they would not insist, that the last shipment was of the quality provided in the contract. Held, that the counter-claim was properly overruled.</p> <p>Wisher v. Bamuda (1 Camp. 190); Hopkins v. Appleby (1 Stark.388); Heed v. Handall (29 N. Y. 361) distinguished.</p> <p>Eeported below, 42 Hun, 571.</p>

The nature of the action and the material facts are stated in the opinion. A vendor is not permitted to add false representations to a deceptive sample to aid him in a fraudulent scheme. (Hargous v. Stone, 5 N. Y. 73; Benjamin on Sales, § 887; Mody v. Gregson, L. R., 4 Ex. 49.) It was- competent for defendants to show the representations and statements made by plaintiff’s agent Berrian when and before the alleged sale was made.

<p>A court of equity has jurisdiction of an action on the part of a tenant to set aside and cancel a written lease on the ground of fraud in its procurement, and in such action may inhibit the defendant from continuing any legal proceedings through which the defendant is attempting to assert a right founded on the lease.</p> <p>Accordingly, held, that an action was maintainable to perpetually restrain summary proceedings, pending before a county judge, instituted by ' defendant to remove plaintiff from certain premises, upon averments and proof that defendant was not the owner of the premises and that plaintiff was induced to sign the lease by fraud on the part of defendant; and this without regard to the question as to the jurisdiction of the county judge to try the question of fraud in the summary proceedings.</p> <p>In an action brought in 1883 to restrain defendant from removing a grist-mill from a certain one-acre lot, of which plaintiff claimed to be the owner in fee and defendant a tenant thereof under him, it appeared that the premises were conveyed in 1843 by warranty deed by K. to Y. E. Subsequently oneP., or his grantees, erected thereon the grist-mill in question; it did not appear by what right or title P. or his grantees assumed to take possession or to occupy. Adjoining was a four-acre lot occupied at the time of such conveyance to Y. R'. by P. under a lease executed to him by Y. R. In 1860 P. S., and subsequently his son E. 8., were in possession of both lots, they paying to Y. R. the rent, fixed and payable, for the four-acre lot; it nowhere appeared that there was any agreement to pay rent on the one-acre lot. In 1860 E. S. conveyed by quit-claim deed to defendant the four-acre'lot, “subject to the annual rent reserved in the original lease ” to P., and by a separate description conveyed the one-acre lot. Before defendant’s purchase he was informed by the agents and attorneys of Y. K that the latter had no title to or claim upon the mill lot. Defendant has occupied said lot ever since said conveyance to him. In 1883 Y. R. conveyed both lots to plaintiff. Held, that defendant had acquired, as against plaintiff, a good title in fee by adverse possession; and that the conveyance to plaintiff of the mill lot while defendant was in possession, claiming under a title adverse to Y. R., was void for champerty. (1 R. S. 789, § 147.)</p> <p>Reported below, 43 Hun, 358.</p>

<p>In an action of ejectment it appeared that defendant S. claimed title under a warranty deed from one B. given in 1861. The purchase was for a valuable consideration. Defendant took possession and has occupied ever since under his deed, in good faith and claiming to be the owner in fee. The premises originally formed part of lands leased by V. R. to P. in 1795 for a term of sixteen years. At the expiration of the term the occupation was continued without any further written lease. B. became possessed in 1860 under a conveyance, made subject to the rents reserved in the P. lease. In 1882 V. R. conveyed the land to plaintiff. Held, that, although under the provision of the Code of Civil Procedure (§ 378) the possession of the tenant is to be deemed that of the landlord until the expiration of the tenancy, or where there is no written lease, for twenty years after the last payment of rent, and for that period there could be no claim of adverse possession on the part of a tenant; and, although for that period the title of defendant was subject to the legal rights of V. R., his grantor’s landlord, after its expiration. he held possession under claim of adverse title; and that, therefore, the deed to plaintiff was void for champerty. (1 R. S. 739, § 147.)</p> <p>Also, held, that no settlement with or attornment to plaintiff by B., the grantor of S., after the deed to the latter, without his knowledge or assent, could affect his rights.</p> <p>Reported below, 43 Hun, 225.</p>

This action was brought to recover one-half the Value of a party-wall. In 1867 George W. Tucker, defendant’s testator, wlio owned a lot known as Ho. 12 White street, in the city of Hew York, entered into an agreement with Ambrose 0. Kingsland, deceased, and with the plaintiffs herein, who were jointly the owners of the lot adjoining, known as Ho. 14, concerning the erection of a party-wall which ivas to be sixteen inches thick, one-half on each lot.

<p>In an action to recover damages for injuries to certain woodlands belonging to plaintiff, lying near defendant’s road, which the complaint alleged had heen set on fire through defendant’s negligence, it appeared that sparks from a locomotive passing on defendant’s road set fire to brush wood, old rails and other combustible materials, which it had allowed to accumulate on its lands; that the fire spread to the lands of one C. and from thence to plaintiff’s lands. A motion for a nonsuit was denied. Held, no error; that the fact sparks were scattered upon defendant’s road-way in such quantities as to endanger property on abutting premises raised an inference that defendant’s engines were improperly constructed or managed; also, that conceding the escape of fire from an engine is inevitable, a railroad company is bound to remove combustible material from its path or to .prevent such an accumulation thereof by the side of its tracks as will, in consequence of fire falling upon it, endanger the property of others.</p> <p>Also, held, the objection that land of a third party intervened between plaintiff’s woodland and defendant’s road, and so the damage complained of was too remote, not having been raised on trial, could not be urged on appeal; but. that the fact was not decisive upon the question, other circumstances would control; and, as the result was to have been anticipated from the moment fire dropped upon defendant’s premises, and the destruction of plaintiff’s property was the natural and direct effect of the first firing, the damages were not remote.</p> <p>Ryan v. H. T. O. R. R. Oo. (35 ÍT. Y. 210) distinguished.</p> <p>Mem. of decision below, 45 Hun, 458.</p>

23,1887, which affirmed a judgment in favor of plaintiffs; entered upon a verdict. The nature of the action and the facts, so far as material, are stated in the opinion. Barnes’ judgment is not a hen upon the land, and cannot be enforced against it.

The substance of the complaint is set forth in the opinion. The complaint states facts sufficient to constitute a cause of action entitling the plaintiff to an- injunction. (Story on Equity, § 885; Wilkinson v. Flowers, 75 Am. Dec. 78; Wilkinson v. F. N. F. Ins. Co., 72 N. Y. 499-504; Dinsmore v. Neresheimer, 32 Hun, 204; Stanton v. Embry, 46 Conn. 65; Weaver v. Poyer, 70 Ill. 417; Walker v. Heller, 90 Ind. 198 ; Hatch v. C. Nat.

The facts, so far as material, are stated in the opinion. An arrest is never to be made with violence, unless the party either flee or forcibly resist, and then only after notice of intention to arrest he given. (Code Grim. Pro. § 174.) It was the duty of the deceased, if he intended to arrest the prisoner at the time of the shooting, to have first given defendant notice of such intention. (Code Grim.

<p>Appeal by defendant Stanley from a judgment of the General Term of the Court of Common Pleas of the city and county of Hew York, entered upon an order made April 4, 1887, which affirmed a judgment of the General Term of the City Court affirming a judgment in favor of plaintiffs, entered upon a decision of the court on trial without a jury.</p> <p>This action was brought against defendants, as alleged copartners, for materials and labor in fitting up the premises used in the firm business.*</p> <p>The facts, so far as material, are stated in the opinion.</p> <p>The agreement of the 23d of January, 1885, did not of itself constitute a partnership inter sese, or as to creditors. (Richardson v. Hughitt, 76 N. Y. 55; Burnett v. Snyder, Id. 344; Eager v. Crawford, Id. 97; Curry v. Fowler, 87 id. 33; Cassidy v. Hall, 97 id. 159 ; Everett v. Coe,, 5 Denio, 180.) The agreement goer se not constituting a partnership quoad third persons, the actions or declarations of Stanley do not render him liable as a" partner. (Cassidy v. Hall, 97 N. Y. 159.)</p> <p>The written agreement between Gorham and Stanley made them partners as to creditors. (Leggett v. Hyde, 58 N. Y. 272.) It is not material that the agreement does not specify that Stanley shall share the losses. Sharing in the profits is sufficient to constitute a partnership as to third parties. (Manhattan Brass Co. v. Sears, 45 N. Y. 797.) The question as to whether plaintiff gave credit to the firm, or to Moulton W. Gorham as an individual, does not arise in the case and is wholly immaterial. The defendant Stanley was liable to creditors on the ground' that he was a secret partner. (Story on Partnership, § 139.)</p>

This action was brought to enforce an alleged agreement upon the part of defendant Stout to execute to the other defendants, executors of the will of Gideon Wales, deceased, a bond for the sum of $4,000 for the benefit of plaintiff. Prior to 18IT said Gideon Wales had for several years carried on the business of a tanner in Sullivan county, and owned a tannery and other property used in connection therewith.