Volume 116 — New York Reports

This action was in the nature of ejectment to recover land under the waters of Mecox bay, in the town of Southampton, Suffolk county. The town claimed title to the land under the colonial charters. There were two charters to the town. The first was dated November 1, 1676, and was granted by Governor Andross, The second was granted by Governor Dongan, and was dated December 6, 1686. The first settlers in the town came from Lynn, Massachusetts, about the year 1641.

This action was brought to recover a balance alleged to be due plaintiffs under a contract between the parties.' On the 29th of September, 1871, the defendants, comprising the firm of Payson, Canda & Co., entered into contract with the ¡Northern Pacific ¡Railroad Company to furnish the materials and build that part of its road known as the Dakota division, extending from the Missouri river to the Red River of the ¡North, and consisting of more than two hundred miles.

This is an action of ejectment brought to recover the possession of certain premises in the town of Pittsford, county of Monroe. The answer is, in substance, a general denial. The defendant’s farm, of about sixty-eight acres, lies directly east of a portion of plaintiff’s farm, of one hundred acres.

The action was brought to recover one-fiftli of the net profits of the Fortieth street stock yards, in New York city, during the period from September 1, 1877, to October 1, 1878, and was founded upon the following alleged contract: “ Whereas, Charles Robinson has leased from Charles E. Appleby certain lands and premises, situated upon Thirty-ninth, Fortieth and Forty-first streets and Eleventh avenue, in the city of New York, for the term of ten years from May 1, 1875, at…

The question was whether or not the plaintiff was entitled to recover $503.52, with interest, for the loss of goods claimed by him to have been insured by the defendant. The facts, so far as material, are stated in the opinion. Every policy must, if possible, be taken as a whole.

This action was brought to charge defendants, as partners, for goods alleged to have been sold to the firm. On April 30,1881, the defendants entered into the following contract: “ Memoranda of an agreement made and entered on this 30th day of April, 1881, by and between Evolin B. Robertson, of the village of Mayville, Chautauqua county, H. Y., of the first part, and M. Mattison, W. B. Martin, C. H. Johnson, Oren Stoddard, James Moon, W. Holt. A. 0.

This action was brought by plaintiff, as heir-at-law of Richard Hughes, deceased, to set aside a deed executed by him to defendant Joseph H. Jones, and a mortgage executed by said Hughes and Jones to Caroline A. Root, deceased, of whose will the other defendants are the executors, and for •other purposes hereinafter stated. On the 19th of February, 1816, at Wales, Great Britain, Richard Hughes, plaintiff’s father, was married to one Ermine Jones.

The nature of the action and the material facts are stated in the opinion. The intention of the parties is to be ascertained, not only from the words of the contract itself, but also from the circumstances surrounding and attending its execution. (Reed v. Ins.

Appeal (pursuant to section 190, subdivision 2, Code of Civil Procedure) from an order of the General Term of the Superior Court of Buffalo, made July 12, 1886, which denied a motion for a new trial (made pursuant to section 1001), and affirmed an interlocutory judgment in favor of plaintiffs, entered upon a decision of the court on trial without a jury.

The action was upon a policy of insurance against fire, upon a grist-mill and machinery, issued January 13,1882, which purported to insure “ Estate of 0. Richards ” and was made payable to the plaintiff, “ mortgagee, as his claim may appear.” Orson Richards in his lifetime was the owner of the property in question.

This action was brought for the foreclosure of a mortgage. Held: was an exercise of the general jurisdiction which the Supreme Court, as the successor of the Court of Chancery, holds over trusts, and the discretion of the court so exercised cannot be collaterally attacked. (Thompson v. Tolmie, 2 Pet. 165; Cooley on Const. Lim. [5th ed.] 505; Hafner v. N. M. L. Ins.

<p>Under the provisions of the Code of Civil Procedure (§§ 14, 3281, 2384) defining what is, and providing the punishment for, a civil contempt, the amount of fine which may be imposed must be based upon proof of the damages actually sustained.</p> <p>In a proceeding to punish defendant for contempt in verifying and interposing an answer to a complaint which the court decided to be false and untrue, the court found that by reason of the misconduct plaintiff was prevented from collecting his judgment, and fined defendant the amount thereof. It appeared that the only property belonging to defendant, after the commencement of said action, was conveyed by him to a third person on March 1, 1885, the deed not being recorded until March fourth: that plaintiff could not have obtained judgment until March fourth had no answer been served, and that it was, in fact, served on March third. Held, that the fine imposed was in excess of the sum the court had power to inflict.</p>

This was an action for a breach of contract. Since January, 1882, the defendants have been bankers and brokers, doing business as partners under a firm name.

The nature of the action and the facts, so far as material, are stated in the opinion. The testator, by his will, charged all his real estate, together with the personal, with the payment of his debts and legacies, and devised them to Mary E. Moses, subject to such charge.

This action was brought to recover the money paid defendant upon assignment of certificate, set forth below, on the ground that the same was paid by mistake. In 1872 a tax of $36.42 was attempted to be laid upon certain premises in the city of Brooklyn, and in the same year theie was also unpaid a water rate of $12.

Appeals from judgments of the General Term of the Supreme Court in the fourth judicial department, entered upon orders made April 20, 1886, which affirmed judgments in favor of defendants, entered upon decisions of the court on trial at Special Term. The first action was brought to restrain the defendant from granting to the Central City Water-Works Company the right to place pipes or other structures in the city of Syracuse, with a view to supply it with water.

This action was upon a promissory note. The material facts are stated in the opinion. The contract of indorsement is conditional. (Story on Bills, § 198.) Before the holder of indorsed paper can charge an indorser he must see that these conditions are performed, or that the same are waived by the party to be charged, or render a sufficient excuse for their non-performance.

<p>Where a contract, made in the name of a corporation by its president, is one the corporation has power to authorize its president to make, or to ratify after it has been made, the burden is upon the corporation of showing that it was not authorized or ratified.</p> <p>On May 1,1887, the S. W. mill, a manufacturing corporation, was indebted to the M. and M. Bank in the sum of $300,766. At that date V., who was president both of the bank and the mill company, assuming to act for both, entered into an oral contract with R., a trustee of the latter, to the effect that the amount then due to the bank should be treated as “a dead or suspended debt;” that V., as president of the mill company, should make . drafts upon its treasurer which, after acceptance by him, should be indorsed by V. and R. individually, and that they should, individually, guarantee other paper; that such drafts and other paper should be used in carrying on the business of the mill, the proceeds of its manufactures to be applied in payment of labor and current expenses, and of such paper, and no part thereof, to the old or suspended debt until all outstanding subsequent claims were paid. The business of the mill was thereafter carried on under this contract; the paper so indorsed and guaranteed was presented to and paid by the bank, hut, instead of canceling and charging it to the account of the mill company it was held as a liability by the bank, and the old indebtedness . was charged up. No notice of the dishonor of this paper was given to the indorsers. The bank failed in October, 1878. At that time the old indebtedness had been all paid, and the bank had in its possession the paper of the mill company made since May 1, 1875, and indorsed by Y. and R. . to an amount $169,861 in excess of its capital stock. In an action against the trustees of the mill company to recover such excess under the provision of the manufacturing act (Laws of 1848, § 38, chap. 40), declaring that, when the indebtedness of a corporation, organized under it, shall exceed its capital, the trustees assenting thereto shall be personally liable for • such excess, held, that the paper so made by the mill and paid by the bank after May 1, 1875. was, as to the defendants, paid; and, therefore, no cause of action was established against them.</p> <p>Defendant R. was the only one of the defendants who was trustee prior to ' May 1, 1875, as to him the referee found that he did not assent to the creation of the debt to the bank existing at that date. To this finding there was no exception, nor was there any request to find the converse of such finding. It did not appear that the case contained all of the evidence. Held, the court must presume that the finding was sustained by the evidence.</p>

This was an action to recover a balance of the purchase-price alleged to be due to the plaintiff upon the sale of certain cattle by him to the defendant at an agreed price per pound. The answer, after admitting the sale and delivery, denied that there was any balance due to the plaintiff on account thereof and pleaded payment in full.

The plaintiff alleged in his complaint that he was a commission and grocery merchant, doing a large business and enjoying good credit as a business man, when the defendant, a corporation, engaged in conducting a mercantile agency, maliciously published, printed and circulated among. its customers a circular containing the following false and defamatory matter, referring to the plaintiff: “ Canandaigua, Kingsbury, Sherman, Grow*; ” that the defendant thereby meant that its…

<p>Defendant, a mercantile agency, published a statement to the effect that a judgment for $4,000 had been rendered against plaintiff, who was engaged in a manufacturing business, which statement was untrue. In an action for libel, held, that the words were not, in themselves, libelous as an imputation against the soundness of plaintiff’s financial condition, and as there was no ambiguity or uncertainty about their import, the question as to whether they were libelous was not one for the jury, but one of law for the court; and that, therefore, the complaint was properly dismissed.</p> <p>Il seems that, upon averment and proof of special damages resulting from ’ such a false publication, an action would be sustainable.</p> <p>Williams v. Smith (L. R., 22 Q. B. Div. 184); King v. Patterson (491ST. J. L. 417) distinguished.</p>

The nature of the action and the material facts are stated in the opinion. The court erred in holding “ defendants were only required to use reasonable care and slrffi in the construction of this sewer,” and were, therefore, not liable. (Noonan v. Albany, 79 N. Y. 470 ; McCormack v. Horan, 8 id. 86; 101 id. 143.) Public officers cannot commit a trespass or nuisance upon the lands of another and be justified on the ground that they used reasonable care and skill.

<p>Appeal from a judgment of the General Term of the-Supreme Court in the first judicial department, entered upon an order made October 15, 1887, which affirmed a judgment •in favor of the plaintiff, entered upon a verdict, and affirmed an order denying a motion for a new trial.</p> <p>The nature of the action and the material facts are stated in the opinion.</p> <p>Where a contract provides that certain parties, agreed upon for the purpose, shall decide as to when a payment is earned, the parties to the contract must abide by that, and a jury will not be substituted to-mate the decision. Where there is no dispute as to the work being done right, or as to the payment being earned, the-courts have held that the decision or certificate required could not be fraudulently, and in bad faith, withheld, when applied for so as to prevent recovery. (Gray v. Central R. R. Co., 11 Hun, 70 ; Martin v. Leggett, 4 E. D. Smith, 257; Hoffman v. Tolloher, 6 Daly, 42; Butler v. Tucker, 24 Wend. 447; Smith v. Brady, 17 N. Y. 176; Canal Co. v. Coal Co., 50 id. 250 ; Whiteman v. Mayor, etc., 21 Hun, 120; Glacius v. Black, 50 N. Y. 145 ; Bank v. Mayor, etc., 2 T. & C. 525 ; Schenke v. Rowell, 3 Abb. N. C. 43; Smith v. Wright, 4 Hun, 652; Voorhis v. Mayor, etc., 46 How. Pr. 117; McCarren v. McNulty, 7 Gray, 139.)</p> <p>If the work was performed by the plaintiffs in accordance with the other provisions of the contract, in the best workmanlike manner, the defendant could not refuse to pay them by unreasonably, or in bad faith, saying the work was not done to his satisfaction. (Smith v. Alker, 102 N. Y. 87; Bowery Bk. v. Mayor, etc., 63 id. 336; Nolan v. Whitney, 88 id. 648; Woodward v. Fuller, 80 id. 312; Philip v. Gollaul, 62 id. 256; Johnson v. De Peyster, 50 id. 666; Smith v. Brady, 17 id. 189; Sinclair v. Tallmadge, 35 Barb. 602; Varian v. Johnstone, 108 N. Y. 645.)</p>

This action was brought to recover a certified bank check, representing the balance alleged to be due of the purchase-price of real estate sold and conveyed in March, 1885, by the plaintiff to the defendant Waddell, which bank check the latter had deposited with the defendant Major.

a decision of the court on trial at Special Term and granted a new trial. \jThe action was brought to recover from defendant unpaid installments alleged to be due upon a contract to purchase land. By the contract, which was- executed March 1, 1875, plaintiff agreed to sell to defendant a lot of land in the village of Westport, upon which there was a brick store, for the sum of $1,600, payable in annual installments varying from $100 to $200.

The nature of the action and the facts are sufficiently stated in the opinion. The court erred in admitting the testimony concerning the alleged colloquium when the whole of the agreement was in writing. (Green-leaf on Ev. [4th ed.] 351-352.) As the appellant duly excepted to the admission of said testimony, and also to the judge’s refusal to dismiss the complaint and direct a verdict for the appellant, the judgment should be reversed.

This action was brought upon an alleged guaranty or promise of indemnity. Prior to June 21, 1875, Ann McKittrick, Michael Dowdall and the defendant were appointed administratrix and administrators, respectively, of the estate of one Hugh McKittrick, deceased, upon the condition that they furnish the usual bond, signed by two sureties, in the penalty of $3,.000.

This action was replevin, brought to recover the possession of personal property, to which the plaintiff claims to have taken tide, by purchase from the defendant, by virtue of the following written memoranda, to wit: “ Hudson, 1ST. Y., Feb. 18th, 1885. “Mb.

This action was brought upon certain promissory notes made by the firm of Squires, Taylor & Co., made payable to the order of the makers, and alleged to have been indorsed by defendant, the German-American Warehousing and Security Company. The plaintiff was incorporated in I860 under the national banking act, and the defendant was incorporated in 1872 under chapter 701 of the Laws of New York, passed May 14, 1872.

The nature of the action and the material facts are stated in the opinions. Malice not having been alleged in the complaint it was not proper to prove it. (3 Am. Jur. 293, 492; 2 Greenl. on Ev. §§ 270, 272; 1 Chitty on Pleading, 130, 388, 389; 1 Wharton’s Crim. Law, 399; Childs v. Delaney, 1 T. & C. 506.) The court has no power to order a party to an action to submit to a medical examination.

<p>Appeal from judgment of the General Term of the Supreme Court in the second judicial department, entered upon an order made October 5, 1886, which affirmed a judgment in favor of defendants, entered upon a decision of the court on trial at Special Term.</p> <p>This action was brought to foreclose two mortgages upon land of which defendant, Grace Hoole, had the legal title; and she alone defended.</p> <p>One of the mortgages was made by James Cook, in April, 1857, to secure the payment of $3,000. To the cause of action upon this, the defendant pleaded payment and the statute of limitations. The other one was executed by the defendant upon the same premises, in August, 1877, to William E. Hoole, and by its terms appeared to have been made to secure the payment of $4,500, according to the condition of a bond of even date with it, also executed by the defendant, who by way of .defense put ih issue the allegations that she made and delivered this bond and mortgage, and alleged that it was without consideration. The plaintiff was assignee of both mortgages.</p> <p>The law presumes a delivery from the fact that the instrument was found upon record duly acknowledged; that fact was prima facie evidence of its delivery. (Lawrence v. Farley, 24 Hun, 293; Munoz v. Wilson, 111 N. Y. 304.) The assumption by the mortgagee, William E. Hoole, of an indebtedness or liability of the mortgagor was a good consideration for the mortgage. (Sanders v. Gillespie, 59 N. Y. 250; Sands v. Crooke, 46 id. 564; Bohen v. Goldstein, 53 id. 634; Seymour v. Wilson, 19 id. 421; William v. Shelly, 37 id. 375; Lawrence v. Fox, 20 id. 268; Roberts v. Cobb, 31 Hun, 150; White v. Baxter, 71 N. Y. 254, 261; Ainsworth v. Backus, 5 Hun, 415.) A fraudulent transfer is binding upon the grantor. (Malin v. Gransy, 16 Johns. 189 ; Saunders v. Cadwell, 1 Cow. 622; Caldwell v. King. 4 id. 207; Renfrew v. McDonald, 11 Hun, 254; Simpson v. Del Hoyo, 94 N. Y. 189; Murphy v. Briggs, 89 id. 446: Zoeller v. Riley, 100 id. 102; Stariv v. Kelly, 88 id. 418.)</p> <p>The defense of non-execution was sustained by the testimony of the defendant as a witness in her own behalf. (Albany City Sav. Inst. v. Burdick, 87 N. Y. 48; Mechanics' Bk. v. N. Y. & N. H. R. R. Co., 13 id. 699.) The defense of want of consideration in the $4,500 mortgage is fully sustained by the evidence. (McCabe v. Drayton, 38 N. Y. 196; Thompson v. Blanchard, 4 id. 302.) William E. Hoole could not maintain an action of foreclosure on this mortgage, nor can his assignee. (Briggs v. Longford, 107 N. Y. 680; Bennett v. Bates, 94id. 363.) It is not open to the plaintiff to now claim that the presumption arising from the use of a seal was not sufficiently rebutted. (Best v. Theil, 79 N. Y. 15; Railway Co. v. McCarthy, 96 U. S. 267.) William H. Hill, the assignee of Mrs. Hoole’s mortgage, has no superior equity to Mrs. Hoole, who signed the mortgage, believing it to be a deed. ( Westfall v. Jones, 23 Barb. 9; Briggs v. Longford, 107 N. Y. 680.)</p>

The nature of the action and the facts are sufficiently stated in the opinion. If at the death of the testator (the time when the estates were created), there was a possibility of the power of alienation being suspended beyond the statutory limit, the devise to that extent is void.

This action was brought by the plaintiff to recover the sum of $1,262.08, which he alleged was the reasonable value of his services as an architect, rendered for the defendant at her request in preparing plans, making estimates and superintending the erection of an addition to her house at Throgg’s Heck, Hew York.

This action was brought upon a policy of insurance issued by the defendant, to recover the sum of $500 for loss sustained by the burning of a barn, a quantity of hay and grain and two horses, covered by the policy.

The nature of the action and the material facts are stated in the opinion. The filing of Us pendens by the plaintiff within ninety days from the time of filing lien by the appellant, enures to the benefit of all other defendants who have filed liens, and, therefore, the filing of Us pendens by the appellant herein was unnecessary.

The nature of the action and the material facts appear in the opinion. Intent is the essence of every crime; and in order to constitute malicious mischief there must be a destruction of or injury to property out of mere wantonness and malice. (43 Ala. 330 ; 44 id. 380; 72 N. C. 201; 110 Mass. 401; People v. Williams, 24 How. 350; Wait v. Green, 5 Park. 185; Johnson v. Ebberts, 11 Fed.

The nature of the action and the facts, so far as material, are stated in the opinion. If the defendants, one or both, were guilty of the commission of the frauds alleged and proved, and also the concealment of that fraud from the plaintiff, the plaintiff was entitled to recover, and the defendants, inlaw and equity, were estopped from shielding themselves behind the statute of limitations.

<p>Plaintiff's charter (§ 16, chap. 110, Laws of 1882) confers upon its collector the powers of town collectors, and requires him to collect all taxes specified in the roll delivered to him, to pay over all moneys collected, and at the expiration of his warrant to return the same “ with an itemized account of unpaid taxes.” Provision is made for the collection of unpaid taxes so returned by suit and by sale of real estate. In an action upon a collector’s bond it appeared that the amount paid over by him was $4,879.84, short of that called for by his warrant; this he did not return and did not render any account. Held, that judgment was properly rendered against him for such deficit; that as, without the return of the warrant, the village was deprived of the power to resort to the remedies given to it for the collection of unpaid taxes, in the absence of evidence to the contrary, the damage sustained was the amount unpaid.</p> <p>Py the charter (§ 16) plaintiff’s board of trustees is given power to renew the warrant from time to time in its discretion. Held, that such a renewal without consent of the sureties did not discharge them; that they must be deemed to have executed the bond with knowledge of this provision.</p> <p>Jt seems that bonds of this character must be construed in suclr'a way as to ■ secure the fidelity of the officer under the law, and regulations as to the time within which the taxes should be collected and the warrant returned are mere directions to the collector, not essential parts of the contract with the surety.</p> <p>Also, held, that, assuming the invalidity of the tax levy, this afforded no justification to the collector in refusing to return the warrant.</p> <p>While a tax collector may decline to collect a tax illegally levied, having collected it, he may not question the right of the proper authority to receive it and may be compelled to pay it over; so, also, at the expiration of his warrant he is bound to return it as required by law.</p>

This action was brought to recover damages for personal injuries to plaintiff alleged to have been caused by defendants’ negligence. The material facts are stated in the opinion. Upon the facts found by the referee the plaintiff was guilty of contributory negligence, as matter of law, as he did not attempt to stop as sooli as he saw the man signaling him.

This was an action of replevin, brought to recover the possession of two hundred and thirty-eight bags of coffee, identified and described in the complaint as follows : “ 89 bags, marked No. 6, II. L. B. & Co., D. B. & Co. 32 bags, marked No. 8, IT. L. B. & Co., D. B. & Co. 14 bags, marked No. 10, H. L. B. & Co., D. B. & Co. 29 bags, marked No. 12, IT. L. B. & Co., D. B. & Co. 68 bags, marked No. 14, IT.

This action was brought to recover damages for personal injuries alleged to have been caused by defendant’s negligence. The material facts are stated in the opinion. Deféndant was entitled to show that plaintiff conversed with and was examined by Dr. Terhune. (People v. Schuyler, 106 N. Y. 304; Edington v. Ætna Life Ins. Co., 77 id. 569.) The questions did not call for the disclosure of any information.

This action was brought to restrain defendants from erecting a pier or dike in front of their uplands on the bank of the Hudson river. The plaintiff and defendants are adjoining owners of uplands on the west shore of the Hudson river. The plaintiff’s grantor, in 1859, built a wharf below high-water mark and opposite to its adjacent uplands. Upon this wharf was erected an ice-lxouse which was filled by an elevator situate at the extreme southern end of the wharf.

<p>Appeal from judgment of the General Term of the Supreme Court in the first judicial department, entered upon an order made June 28, 1886, which affirmed a judgment in favor of plaintiff, entered upon a verdict directed by the court.</p> <p>This action was upon a policy of insurance, dated September 12, 1812, issued by the defendant upon the life of Lindly H. Fowler, for the sum of $1,500.</p> <p>A prior policy had been issued by the defendant upon the life of the same person for $10,000, dated March 6,1869, and numbered 2046, which contained a provision ‘that if after receiving three or more annual premiums, the assured should fail to make payment of any further premium when due, upon a surrender of the policy within thirty days after such unpaid premium was due, said company would in exchange, therefore, issue a paid-up policy for the proportion of the amount of insurance paid for, and it further provided that one-third of the annual premium might be indorsed as a loan.</p> <p>The policy in suit recited that it was issued in consideration of the surrender of policy No. 2046, and of the annual payment in advance of the sum of $30.18, being for interest on premium notes amounting to $431.24, given in part payment of the premium on policy No. 2046, and provided that this payment should he made on or before the twelfth day of September, in every year during the continuance of the policy, and in default thereof the policy to be void. It further provided that the amount of all unpaid notes given for loans on the policy in suit, or on policy No. 2046, should be deducted from the amount specified in the policy when the same should be payable by the defendant. The interest on the notes was paid in 1873. In 1874, the insured about the time the interest matured was residing in Wisconsin, and remitted the amount necessary to make the payment to his father, who resided in the city of New York. The father testified that he received the remittance about noon of September twelfth, and on the following day went to the company’s office to make the payment, but was told by the cashier that the policy had lapsed and the payment could not be received. A few days later a formal tender of the interest was made and refused. In each succeeding year the interest was tendered to the defendant and refused. The assured died in April, 1880. In November, 1877, the policy was assigned by the assured to the nlaintifi and notice thereof given to the defendant.</p> <p>It was alleged in the complaint, and the evidence showed, that in the years 1868 and 1869, the defendant caused to be published and circulated a pamphlet setting forth certain reasons why it should be preferred over other life insurance companies by those desiring insurance, and among such were the following: “ All its policies are non-f orfeitable.” “All its policies are incontestable.” “ It allows thirty days grace in payment of premiums.” “ Thirty days grace will be allowed on all payments after the first, thus affording the absent, the unfortunate or the embarassed member an opportunity to keep his policy in force without the necessity of changing it to a prepaid policy for a smaller amount. During these thirty days the policy is held good and valid.” A copy of rtliis pamphlet was found with the policy of insurance after the death of the assured, and there was evidence that the insured received it from the company.</p> <p>Where a policy of life insurance expressly provides that on or before a certain day a sum of money shall be paid, or in default thereof the policy shall be void, no court either in equity or at law can relieve the party in default from a forfeiture of the policy caused by a failure due to the party to pay according to its terms. (Robertson v. M. L. Ins. Co., 88 N. Y. 541; N. Y. L. Ins. Co. v. Statham, 93 U. S. 24; Klein v. Ins. Co., 104 id. 88; How v. U. M. L. Ins. Co., 80 N. Y. 45; Roehner v. K. L. Ins. Co., 63 id. 160; Evans v. N. S. L. Ins. Co., 64 id. 304, 308; Wheeler v. C. M. Ins. Co., 82 id 551; In re Atty.-Genl. v. C. L. Ins. Co., 93 id. 73; Robsrts v. N. E. M. L. Ins. Co., 1 Disney, 355 ; 1 Phil, on Ins. chap. 9; 2 Denio, 75; 7 Wend. 270; Pritchard v. M. and T. M. L. A. Soc., 2 C. B. [N. S.] 622; May on Life Ins. 406-425; Bliss on Life Ins. 272.) The terms of the policy in question were not and could not be affected by the publications set up in the complaint. (Evans Case, 64 N. Y. 304; Ruse v. M. B. L. I. Co., 23 id. 516 ; Knickerbocker L. I. Co. v. Dietz, 52 Md. 16; Knickerbocker Ins. Co. v. Harlan, 56 Miss. 512; Alabama Gold Ins. Co. v. Thomas, 74 Ala. 578; Ins. Co. v. Robinson, 40 Ohio St. 270; Atty.-Genl. v. N. A. L. I. Co., 82 N. Y. 172; Holman v. C. Ins. Co., 54 Conn. 195; 1 Am. St. R. 67.) The original policy contained a provision giving the insured thirty days’ grace to pay his premium. This fulfilled the promise contained in the circular. (Morrison v. Ins. Co., 5 Am. St. R. 63.)</p> <p>The court, under its equity powers, will' relieve the unfortunate suitor from mistakes, ignorance, fraud on the part of the insurers or acts that would mislead. (Attorney-General v. N. A. L. Ins. Co., 82 N. Y. 191; Douglass v. K. L. Ins. Co., 83 id. 499, 504; Wheeler v. C. M. L. Ins. Co., 82 id. 543, 552; People v. K. L. Ins. Co., 103 id. 487; 1 New Eng. Rep. 247, 635; Wilson v. Deen, 74 N. Y. 534; Leslie v. K. L. Ins. Co., 63 id. 33.) The defense, claiming a forfeiture, is unconscionable, and every intendment should be taken against the party seeking to take advantage of it. (Cole v. K. L. Ins. Co., 63 How. Pr. 442; Winchell v. Hicks, 18 N. Y. 558; Taylor v. Atlantic Mut. Ins. Co., 37 id. 275, 284; Witson v. Randall, 67 id. 338, 341; Stafford v. Jones, 97 id. 586, 589.) The court, under the present practice, has the powers of a court of equity as well as of law; and the defendant did not except to the powers or ruling of the court on this point. (E. Ins. Co. v. R. Ins. Co., 55 N. Y. 347; Binsee v. Wood, 37 id. 526; Winchell v. Hicks, 18 id. 558, 565; Lynch v. Kennedy, 34 id. 152; Stone v. Flowers, 47 id. 566, 269; Barnes v. Perine, 12 id. 18; O'Neal v. James, 43 id. 85; Taylor v. A. M. Ins. Co., 37 id. 275, 283; Schile v. Brokhahue, 80 id. 614, 620.) The defendant is estopped from claiming a forfeiture of the policy, if the pamphlet induced assured to believe that a strict compliance with the terms for paying at specified intervals would not be insisted upon. (Ruse v. M. B. L. Ins. Co., 26 Barb. 560, 561; 23 N. Y. 516; 24 id. 653; Underwood v. F. J. S. Ins. Co., 57 id. 500 ; Blair v. Wait, 69 id. 113; 6 Hun, 477; Howell v. K. L. Ins. Co., 44 id. 285; C. N. Bank v. Nat. Bank, 50 id. 575 ; 30 id. 226 ; Boardman v. L. S. & M. S. Ry. Co., 84 id. 157; 47 id. 493; 3 Hill, 215; 28 Me. 525; 30 N. Y. 519; 5 Denio, 154; 17 Conn. 345; 50 N. Y. 375 ; Muller v. Pondir, 55 id. 325; 14 Am. Rep. 259; 6 Lans. 472.) If the appellate court should think that there was error in the admission of the pamphlet, we submit that the plaintiff made a good case without that evidence. (Cole v. K. L. Ins. Co., 63 How. 442; Main v. U. L. Ins. Co., 85 N. Y. 278.)</p>

This action was brought to recover damages for injuries received by the plaintiff, a brakeman in the employ of the defendant, alleged to have been caused by defendant’s negligence while engaged in coupling cars.

The nature of the action and the facts are sufficiently stated in the opinion. The plaintiff’s incarceration was due to the conduct and assumed authority of the defendant. (Green v. Kennedy, 46 Barb. 16 ; 48 N. Y. 653.) The defendant held no official position giving him any right or power in the premises to interfere with the plaintiff’s person or liberty which could not be exercised with the same justification by any private citizen.

On the 4th day of June, 1884, Alonzo Bradner executed, acknowledged and delivered a preferential general assignment for the benefit of his creditors to Andrew J. Holden, as assignee, who, on the same day, executed and acknowledged an acceptance thereof and delivered the completed instrument to the clerk of the county of Livingston by whom it was duly recorded on that day.

The plaintiff alleged in her complaint that in] October, 1883, the defendant, a railroad corporation, operated a railroad passing over a bridge at Fort Edward, blew York; that on the twenty-second of that month, said bridge, through the negligence of the defendant, gave way as a train of its cars was passing over; that said train was thereby wrecked and the plaintiff, a passenger thereon, was thrown therewith about thirty feet into the bed of the feeder below and permanently…

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. The admission of evidence of losses suffered by the plaintiffs, and not proved to have been occasioned by the matters complained of, was error.

<p>In an action by a firm creditor to set aside an assignment made by the firm for the benefit of creditors on the ground of fraudulent preferences, it appeared that a note, indorsed in the name of the firm, which was one of the preferred debts, was so indorsed by B., a member of the firm, and used to take up a note indorsed by himself, for the accommodation of the maker, which the holder had refused to renew unless the renewal note was indorsed by the firm. Held, that the burden of proof was upon plaintiff to show that the indorsement was without the consent of the firm; that in the absence of any such proof the acknowledgment of the debt in the assignment and the presumption of the validity of that instrument required the court to assume consent; also, that the surrender of the old note and the extension of time of payment furnished a good consideration; and so that, in the absence of proof of fraud as matter of fact, the indorsement was valid and binding.</p> <p>The difference in the rule applicable to such an action and to one brought against the firm upon the indorsement, pointed out.</p> <p>It appeared that at the time of the indorsement the firm was insolvent, but did not contemplate an assignment, hoping to pay their debts in full. The fact of insolvency was not known to the holder of the note. Held, that this fact did not, as matter of law, make the indorsement fraudulent as against the firm creditors.</p> <p>Menagh v. Whitwell (53 N. Y. 146) distinguished.</p> <p>A. partnership is not prohibited from entering into obligations outside of the scope of the partnership business, provided it is done with an honest purpose and with the consent of all the copartners; and partnership property may be transferred to pay an indebtedness so incurred, even if the firm was insolvent at the time it entered into the contract; if there. was a good consideration to support it, a firm-creditor having no lien upon its property has no legal ground for complaint if firm property is appropriated to pay such obligation.</p> <p>In the description of the note in the assignment it was stated that it was “indorsedby said assignors and discounted and held by”N., the preferred creditor. Held, that there was no fraudulent misstatement of the nature of the obligation.</p>

<p>Appeal from a judgment of the General Term of the Supreme Court in the fifth judicial department, entered upon an order, made June 1, 1886, which affirmed a judgment in favor of plaintiffs, entered on a decision of the court on trial at Special Term.</p> <p>This action was begun January 7, 1885, to foreclose a mortgage executed February 13, 1884, by George B. Smith to Erickson, Jennings & Co., as a continuing security for all sums not exceeding $10,000, which the mortgagor might owe the mortgagees at any time within ten years after the date of the mortgage.</p> <p>The plaintiffs, who are the surviving partners of the mortgagees, allege, in their complaint, that February 7, 1884, George B. Smith made his promissory note whereby he promised to pay to their order $2,500, three months after date, at the National Park Bank in the city of New York, and delivered the same to the payees, who discounted it on that date, and that February 11,1884, George B. Smith made his second promissory note, whereby he promised to pay to the order of the plaintiffs $1,500, three months after date, at said National Park Bank, and delivered it to the payees, who discounted it on that date, and that both notes were due and unpaid, with interest on the first from October 13, 1884, and on the second from October 17, 1884.</p> <p>The sole defense interposed to this action is that the notes and mortgage are void for usury. It is conceded, and found as a fact, that the plaintiffs were, when the transactions occurred out of which this action arose, bankers under their firm name of Erickson, Jennings & Co., and engaged in receiving deposits, subject to check, discounting commercial paper and dealing in exchange at Bochester, New York. The avails of the notes were credited by the plaintiffs to Smith’s account, and were drawn on his check, so that the relation of banker and customer existed between these litigants in respect to the loans in controversy.</p> <p>The purpose to exact upon this discount a greater sum than at the rate of six per cent per annum being confessed by the lender, and found as a fact by the court, it is entirely immaterial that the lender did it under the mistaken notion that he could do it lawfully. (Bank of Salina v. Alvord, 31 N. Y. 473.) The plaintiffs are not excepted from the operation of the usury laws of the state by virtue of chapter 409 of the Laws of 1882. (1 R. S. 772; Laws of 1850, chap. 172; Penal Code, § 353; Laws of 1883, chap. 339; 13 U. S. St. at Large, 108, § 30; Laws of 1882, chap. 409, § 68; People v. Doty, 80 N. Y. 225; Laws of 1881, chap. 373.) Words are to be interpreted with reference to the general scope and object of the statute. (Pomeroy’s Sedg. on St. and Const. Law, 225; L. S. & M. S. R. Co. v. Roach, 80 N. Y. 339, 344; Dwar. on St. 703, 704.) Statutes containing particular exemptions from general burdens are to be strictly construed. (Pomeroy’s Sedg. 296, 297 and notes ; State v. Woodson, 41 Mo. 227; Sprague v. Birdsall, 2 Cow. 419; B. and U. PI. R. Co. v. Robbins, 22 Barb. 662; C. B. Co. v. Magee, 2 Paige, 116; 6 Wend. 85; B. C. Co. v. Buffalo, 46 N. Y. 506; Peoples. Davenport, 91 id. 574, 586; Warden v. Dean, 4 Price, 65.) If a statute is capable of two interpretations, that shall be given it, if possible, which shall make it consistent with the Constitution, rather than that which will bring it in conflict with it. (People v. Albertson, 55 N. Y. 50, 56 ; M. R. Co. v. Beckwith, 129 U. S. 26, 29.)</p> <p>When, at the time of the agreement for a loan, nothing is said as to the rate of interest, the law implies it to be that limited by statute. (Guggenheimer v. Geiszler, 81 N. Y. 293,) There must not only be an agreement actually made between the parties for the payment of more than lawful interest, but there must be an intent to do so in violation of. the statute of usury. The intent must exist in the minds of both parties to the contract. (Condit v. Baldwin, 21 N. Y. 221; 9 Pet. 399; 7 Johns. Ch. 77.) The facts as proved or found, do not establish usury, no matter who the parties were who made the loans. (Bank v. Walbridge, 19 N. Y. 134, 143.) The law will not presume a contract illegal, and so void, when it is capable of a construction which will make it lawful and valid. There must be evidence of an agreement or intention to reserve more than lawful interest as interest. (Curtis v. Gokey, 68 N. Y. 300; Orms v. Dauchy, 82 id. 443; Tyler on Usury, 468; Booth v. Swezey, 4 Sheld. 276, 280; C. S. Bk. v. Bidwell, 29 Barb. 325, 332; Smith v. Hathorn, 85 N. Y. 211, 214; Eagle Bk. v. Rigney, 33 id. 613; Beals v. Benjamin, Id. 61, 67; Price v. Lyons Bk., Id. 55 ; S. C. Bk. v. Schermerhorn, 1 Denio, 132.) The plaintiffs, at the time of the transactions in question, were private bankers, doing business in this state, and by the laws of this state they were permitted to charge the interest in advance and to charge a reasonable exchange, and in case they charged more than the legal rate, the penalties therefor prescribed by the laws of this state were only those which apply to the national banks, which is a forfeiture of double the amount of the excess of interest charged. Hintermister v. F. N. Bk., 64 N. Y. 212; Laws of 1882, chap. 409, §§ 68, 69; People v. Doty, 80 N. Y. 225; 1 Otto, 29; A. S. Bk. v. Savery, 18 Hun, 36, 42; 91 U. S. 29 ; 64 N. Y. 212; Bk. of Monroe v. Finlay, 6 Hun, 584; Farmers' Bk. v. Hale, 15 Abb. Pr. [N. S.] 276.)</p>

This action was brought by plaintiff under chapter 646 of the Laws of 1873, known as the Civil Damage Act, to recover damages for the death of her husband, which she claimed was caused by defendant selling him intoxicating liquors. The material facts are sufficiently stated in the opinion. The plaintiff cannot recover unless she has proven that the defendant either gave or sold to her husband intoxicating liquors.

The nature of the action and the facts, so far as material, are stated in the opinion. It was the duty of the plaintiff to look in every direction from which danger might be apprehended; having failed to do so he is not entitled to recover.

<p>The will of H. appointed S. trustee and gave his residuary estate to him in trust for the benefit of plaintiff during his natural life, with “full power and authority to use so much of the said trust fund, either interest or principal,” asshall,in the “ judgment and discretion ” of said trustee, “be necessary for the proper care, comfort and maintenance” of said beneficiary during life. In an action for the construction of said will, held, that plaintiff was entitled to his support and maintenance according to his condition in life, although able to support himself by his own exertions; that it was not necessary for him to remain idle in order to entitle him to the benefit of the provision so made for him, nor did the fact that he was frugal and saving and had accumulated a fund deposited in bank deprive him of the right to the support provided for him; that it was a matter within the sound judgment and discretion of the trustee as to whether the money necessary for plaintiff’s support should be paid to him, or the necessary board, clothing, etc., should be purchased and provided by the trustee, and so long as plaintiff remained rational, prudent, industrious and saving there was no abuse of discretion in pay_ ing to him the annual or semi-annual appropriations for his support.</p>

The nature of the action and the material facts are stated in the opinion. The several towns are liable for all damages to person and property by reason of defective highways and bridges only in cases in which commissioners of highways were liable at the time of the passage of the act of 1881.

This action was brought to set aside an assignment by John I. Brooks for the benefit of creditors as fraudulent and void. For several years before September 9, 1883, John I. Brooks and Edward C. Brooks were dealers in pork and lard, as partners, under the firm name of John I. Brooks & Oo. They owned real estate paid for by the firm and used for its purposes, which was held under deeds running to John I. Brooks and Edward C. Brooks, as grantees. On the date named, Edward 0.

This action was brought by leave of the court to recover, for application upon a judgment in favor of plaintiff Naser against Deneken & Co., the amount of a claim alleged to have been collected by the defendant for Deneken & Co., and upon which it is also alleged that an attachment, issued in the action in which such judgment was recovered, had been levied.

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

The nature of the action and the facts are sufficiently stated in the opinion. The defendants, as carriers, had only undertaken to safely transport the cargo to its destination, and deliver, or offer to deliver it according to directions, and give a reasonable time in which to unload, and when this had all been done, their whole duty as carriers was discharged and they were no longer liable as such.

In June, 1882, the plaintiff was the owner and master of the canal boat “Thomas Shallow,” and in that month the defendant shipped thereon a cargo of sawdust, under a written instrument, called a bill of lading, of which the following is a copy: “ Thompson’s Mill, j Saratoga Dam, N. Y., June 9, 1882. ) “ Shipped by Lemon Thomson on board of canal boat Thos.

This action was brought to recover damages for certain written and oral statements, made by the defendants concern-plaintiff’s editions of two of the poet Longfellow’s prose works, “ Hyperion ” and “ Outre-Mer.” The plaintiff claimed the statements to have been false, that they were maliciously made, and resulted in great damage to its business. These books were published by the plaintiff in the year 1882.

The nature of the action and the material facts are stated in the opinion. There was no proof that the defendant Henry S. Terwilliger had any knowledge that McLaughlin, sold intoxicating liquors. (Mead v. Stratton, 8 Hun, 148, 151.) It was error to charge the jury that Terwilliger was liable for exemplary damages.

<p>Defendant, an insurance association, organized under the act of 1883 (Ghap. 175, Laws of 1883), admitted D as a member and issued to him a certificate whereby it agreed to pay plaintiff, upon proofs of D.s death, $5,000 from its “ death fund.” In case the death fund should prove insufficient to meet the existing claims by death, defendant agreed that “a call shall be made upon this entire class of membership in force.” These assessment calls upon the members they were required to pay within thirty days from the call. In an action upon the contract it appeared that a single assessment of the members liable to call at the time of D.s death at the rates prescribed, would have produced a sum in excess of the amount called for by the policy. Held, that the action was maintainable; that the failure of defendant to perform the duty, in case the death fund was insufficient, of assessing its members as provided rendered it liable; that plaintiff’s remedy was not limited to an action in equity to compel the performance of that duty.</p> <p>The contract provided that it should be void if the member shall die “in violation of or attempt to violate any criminal law of the United States or of any state or country in which the member herein named may be.” D. died in this state and defendant offered to prove that he died from the effects of poison taken by him with intent to take his life. The evidence was excluded. Held, no error; that the fact that D. committed suicide was no defense within the conditions of the policy, suicide not being a crime within this state, although the attempt to commit suicide is.</p> <p>For the purpose of upholding a contract of insurance its provisions will be strictly construed as against the insurer, when its terms permit more than one construction that will be adopted which supports its validity. It is only when no other is permissible by the language used that a con- • struction which works a forfeiture will be given to it.</p>

The nature of the action and the facts are sufficiently stated in the opinion. The trial court erred in charging the jury that if they believed the evidence of plaintiff and his witness he was entitled to a verdict. (Greenwood v. Schumaker, 4 Week.

This action was for an alleged assault and battery. In March, 1886, the plaintiff took passage on one of defendant’s cars, and after having paid the usual fare of five cents and after riding some distance was forcibly ejected from the car by the conductor and driver, by which the plaintiff alleged that he sustained a personal injury.

<p>It is the duty of a municipal corporation to keep its streets in a safe condition for public travel, and it is bound to exercise reasonable diligence to accomplish that end; this is so as well where an obstruction rendering travel unsafe is caused by a third person, as where it is the act of the corporation.</p> <p>Where, therefore, public or private improvements are being made in a city street causing an obstruction, it is the duty of the city to guard them so as to protect travelers on the street from receiving injuries therefrom.</p> <p>The municipality is not absolved from liability by the fact that the obstruction was caused by a contractor with the city, who by his contract, is bound to properly guard it or to place warning lights.</p> <p>A person using a public street is not required to be vigilant to discover dangerous obstructions, but may walk or drive in day or night-time, relying upon the assumption that the corporation has performed its duty and in that respect, he is exposed to no danger from its neglect.</p> <p>In an action to recover d; -iages for personal injuries alleged to have been caused by defendant’s negligence, the complaint alleged -that "by and under the direction of the defendant” a trench was excavated and a dangerous embankment therefrom thrown up in one of its streets and was negligently suffered to remain exposed and without proper protection or notice to travelers; that a carriage, in which plaintiff was riding on a dark night ran against such embankment and was upset, causing the injuries complained of. Reid, that under the complaint, plaintiff was not confined to proof that the obstruction was created by defendant, but was entitled to show that it was the work of a third person and was left unguarded by defendant after notice of its existence; also, that upon the question of notice it was competent to show the condition of the street and the absence of lights in the night-time prior to the accident and on the sc,me night thereafter.</p> <p>It appeared that the dangerous condition of the street had existed for two months prior to the accident. Held, that defendant was chargeable with notice thereof.</p> <p>The improvement causing the 'obstruction was being done under a contract with defendant’s board of water commissioners in performance of the duty devolved upon it. Held, that, although said board was created by special statute (Chap. 86, Laws of 1878), yet as it is recognized as a department of the city government (Chap. 184, Laws of 1881) and its duties defined, and as it exists solely for the benefit of the city in doing the work, it was engaged in the discharge of a municipal duty, and for its negligence in the performance thereof the city was responsible.</p>

This was an action to compel the specific performance of a contract to convey land.

This action was brought to recover damages which plaintiff alleges she sustained through the negligence of the defendant’s servants in digging a trench in the sidewalk on Seventeenth street in the city of Brooklyn, and leaving the same without sufficient guard or warning, by reason of which the plaintiff, on the 5th day of April, 1885, and without any fault or negligence upon her part, in passing along the sidewalk fell into the pit and was injured.

uly 1, 1886, which affirmed a judgment in favor of plaintiff, entered upon a verdict, and affirmed an order denying a motion for a new trial. The nature of the action and the facts are sufficiently stated in the opinion. This action is one affecting the property rights of plaintiff separately and independently of her husband.

<p>Appeal from a judgment of the General Term of the Superior Court of the city of New York, entered upon an order made at the November Term, 1886, which affirmed a judgment in favor of plaintiffs entered upon a verdict, and affirmed an order denying a motion for a new trial.</p> <p>This action was brought on an open marine policy of insurance for the recovery of the damages alleged to have been sustained by a loss of freight.</p> <p>The policy, No. 64118, was issued by the defendant October 28, 1878, “ Upon all kinds of lawful goods and merchandise, laden or to be laden on board the good vessel or vessels as agreed at time of indorsement.” The risks assumed were as follows: “ Touching the adventures and perils which the said Great Western Insurance Company is'contented to bear, and takes upon itself in this voyage, they are of the seas, winds, waves, rocks, sands, shoals and coasts, collisions and sinking at sea, fires,- jettisons, loss by pirates, rovers, or assailing thieves, barratry of the masters and mariners, and all other losses and misfortunes that have or shall come to the hurt, detriment or damage of the said goods or merchandise or any part thereof, occasioned by sea perils, subject, however, to such clauses, terms and rates of average as are contained in the memorandum in this policy, unless otherwise agreed upon in writing.” The indorsement was as follows:</p> <p>“Date of entry, March 24, 1879.</p> <p>“ Name of vessel, bark, The Brothers’ Pride. To be insured from port in Cuba to port north of Hatteras. The risk, freight. Amount to be insured, $5,000. Bate of premium, 1£. Amount of premium, $75.”</p> <p>The plaintiffs claimed that the vessel was laden with eight hundred and sixty-three hogsheads of melado to be delivered at New York for $5.25 per hogshead, amounting to $4,530.75.</p> <p>At the close of the plaintiffs’ case, the defendant moved that the complaint be dismissed, on the grounds; (1) That there was no loss of the vessel proved by the perils of the sea or by barratry; (2) That the evidence was insufficient to support a policy on freight, because it could not attach until there was a cargo laden on hoard; (3) That there was no evidence that the vessel sailed on the voyage insured against; (4) The vessel having met with no sea peril, the conclusive presumption is that she was unseaworthy when she sailed; (5) That preliminary proofs of loss must be true proofs, and it is not a presentation of true proofs of loss, or the proofs of loss required by the policy, for the plaintiffs to present a marine protest, as here presented, showing the absolute contrary of the facts in evidence. The motion was denied and, the defendant offering no evidence, the case was submitted to the jury, which found a verdict of $4,528.25, with interest, for the plaintiffs.</p> <p>Further facts are stated in the opinion.</p> <p>The court erred in refusing to dismiss the complaint upon the ground that there was no proof to support a policy on the freight, and no proof that there was a cargo laden in good faith on board the vessel. (Storey v. Brennan, 15 N. Y. 526; Boulett v. N. Y. & H. R. R,. Co., 59 id. 365 ; Dwight v. Ins. Co., 103 id. 358.) Yo matter by whom produced, the charter-party and hill of lading could not be proof of their contents for the plaintiffs; they are merely declarations by the plaintiffs’ agents, and of no force or effect as evidence of the facts therein stated against the defendant. (Paine v. Ins. Co., 69 Me. 568; Newman v. Cordell, 43 Barb. 454.). The court erred in refusing to dismiss the complaint, and to direct a verdict for the defendant upon the ground that there was no proof that the vessel had encountered a sea peril. (Abrath v. N. E. R. R. Co., L. R., 11 Q. B. Div. 449 ; Berwind v. Ins. Co., 21 J. & S. 102 ; Ross v. Hunter, 4 T. R. 38; Wright v. O. Ins. Co., 6 Bosw. 218, 219 ; Allison v. Ins. Co., 51 N. Y. 91; Prescott v. U. Ins. Co., 1 Whart. 408 ; Talcott v. C. Ins. Co., 2 Johns. 129.) The opinion of witnesses as to latent facts to establish a state of things opposite to that established by positive testimony as to patent facts was admissible. (Prescott v. U. Ins. Co., 1 Whart. 408; Watson v. Clark, 1 Dowl. Pr. 344; Wright v. O. Ins. Co., 6 Bosw. 269; Van Wickle v. M. Ins. Co., 97 N. Y. 350 ; Allison v. Ins. Co., 57 id. 91; Dudgeon v. Pembroke, L. R., 9 Q. B. 596.) The plaintiff’s position that when evidence of seaworthiness has been offered • there arises a presumption of loss by a peril insured against, which can be rebutted, is untenable. (Rugely v. S. M. Ins. Co., 7 La. Ann. 603 ; Talcott v. C. Ins. Co., 2 Johns. 124; Wright v. O. Ins. Co., 2 Bosw. 269 ; Walsh v. W. Ins. Co., 32 N. Y. 436; Van Wickle v. M. Ins. Co., 97 id. 350; Berwind v. G. Ins. Co., 114 id. 232; Paddock v. F. Ins. Co., 11 Pick. 227; Prescott v. U. Ins. Co., 1 Whart. 399; Watson v. Clark, 1 Dowl. Pr. 344; Dupeyre v. W, etc., Ins. Co., 2 Robt. 457.)</p> <p>The vessel was lost by barratry or one of the perils assured against. (Moores v. Underwriters, 14 Fed. Rep. 254; Palmer v. G. W. Ins. Co., 15 J. & S. 457.) All that is necessary to show an insurable interest in the freight is for the vessel to have incurred any expense upon the voyage towards earning it, such as proceeding to the port of loading, or, if in port, getting in berth, and preparing to receive the cargo. (Foley v. U. F. and M. Ins. Co., L. R. [5 C. P.] 155 ; Robinson v. M. Ins. Co., 1 Metc. 145 ; 1 Phillips on Ins. § 327; Flint v. Fleming, 1 B & A. 145.) The English law does not require the assured to prove seaworthiness, but the American law, while it differs with the English law, and requires the. assured to prove seaworthiness, still requires only the slightest proof upon the subject. (Moses v. S. M. Ins. Co., 1 Duer, 159; Borland v. M. Ins. Co., 14 J. & S. 433; Patrick v. Hallett, 1 Johns. 241; Moores v. Underwriters, 14 Fed. Rep. 226.)</p>

This action was brought to recover money claimed to have been obtained from the plaintiff by threats, coercion and undue influence. The facts out of which it arose are as follows: The plaintiff is the wife of Jay L. Adams, who was adjudged a bankrupt in 1878. The defendant was a creditor of Adams to the amount of several thousand dollars.

This action was brought to recover damages for injuries received by plaintiff while in defendant’s employ as abrakeman. The facts are sufficiently stated in the opinion. There was no proof which warranted the submission of the question of defendant’s negli. gence to the jury, and the motion for a nonsuit should have been granted.

<p>1. Negligence—Master and servant—Railroad employee.</p> <p>Plaintiff, in an action brought for injuries sustained while employed by defandant as a brakeman, testified that as his train was approaching a tunnel he was warned by the “ telltale" and sat down on the top of a box car, which was eleven feet two inches high. It appeared that the tunnel was twenty feet high at its entrance, but had a brick arch fifteen feet nine inches high, which began 200 feet in, where plaintiff claimed he was struck on the head, etc. Held, that the negligence of defendant was not established, it being physically impossible for plaintiff to receive a blow on the head from the arch in the manner detailed, with a space above the car of four feet and seven inches.</p> <p>2. Same—Judicial notice.</p> <p>The court may take judicial notice of the size and height of the human frame, and of the fact that from the end of the spine to the top of the head an adult, is less than thirty-six inches, and in order to have been injured as plaintiff claims, he would require to be nine feet tall, a height probably never attained by man.</p> <p>(Bradley and Yann, JJ., dissent.)</p>

This action was brought to recover a balance of the purchase-price alleged to be due for certain property sold by plaintiffs to defendants. On the 17th day of ¡March, 1881, thé plaintiffs sold and delivered to William B. Bishop several machines, and assigned to him certain letters-patent for the agreed price of $4,500.

<p>In an action to recover damages for injuries alleged to have heen caused, by defendant’s negligence, it appeared that plaintiff was in defendant’s employ as a brakeman upon a freight train. While standing on top of a car he was struck by a bridge over the track and was injured. He had run upon this train for over three weeks and, during this time, had passed daily under this bridge, and frequently on top of a car where he was required to be in the performance of his duty. The accident occurred in the daytime; the bridge was in plain sight, and, knowing the train was about to pass under it, he turned his back to it, and was going toward the rear of the car when he was struck. Held, that a refusal to nonsuit was error; that plaintiff, had he exercised ordinary care and observation, must have known that the bridge was not of sufficient height ' to permit a person to pass under it, standing on the top of a car.</p> <p>A servant who enters upon an employment, from its nature hazardous, assumes the usual risks and perils of the service, and.of the open, visible structures known to him, or which he must have known, had he exercised ordinary care and observation.</p>

This was an action for absolute divorce. The plaintiff in her complaint alleged adultery on the part of the defendant with three persons. Defendant in his answer denied the allegation as to two of the parties named ; and set np as a defense to the demand for alimony a separation agreement, dated April 30, 1883, executed by the parties to this action and one Galusha Phillips as trustee.

Moses P. Roberts, the original plaintiff herein, in October, 1876, purchased of defendants certain premises, giving his bond, secured by two mortgages, one on the lands purchased to secure the purchase-price. He made various payments on the bond, but in October, 1879, being in default, defendants commenced a foreclosure of the mortgages.

<p>Appeal from judgment of the General Term of the Supreme Court in the first judicial department, entered upon an order made October 15, 1886, which affirmed a judgment in favor of defendants, entered upon a decision of the court on trial without a jury.</p>