Volume 118 — New York Reports

This action was brought to recover damages for the alleged misappropriation of certain railroad bonds pledged to defendant as security for certain promissory notes indorsed by plaintiff. Defendant discounted the said notes, which amounted to $20,000. They were made by one Scofield and indorsed by plaintiff for Scofield’s accommodation. The notes were secured by $20,000 (par value) railroad bonds, first lien on the Utah and Pleasant Valley Railroad, pledged as collateral.

This was an action to recover an installment due under articles of separation between defendant, C. Baldwin Fosdiok, and Jennie P. Fosdick. Jennie P. Fosdick intermarried with the defendant, C. Baldwin Fosdick, on the lltli day of April, 1878, and thereafter they lived together as husband and wife until the 14th of February, 1883.

This action was brought to recover back money alleged to have been paid by plaintiff in repairing a bridge in excess of his proportionate share of plaintiff’s town. The referee found among other facts that the Hoosick river divides the towns of Hoosick, in Henssalaer county, from the towns of Cambridge and White Creek, in Washington county.

The object of this action was to restrain the defendant from using certain patterns alleged to have been surreptitiously copied from patterns belonging to the plaintiff that had not been made public.

This action was for equitable relief, i. From the findings in the case, it appears that on the 1st day of May, 1816, John J. Morgan, who was seized in fee simple . of the premises described in the complaint and in the lease, on that day executed a lease to Besolved W. Fenner during the lives of Christopher 0.

This action was brought to restrain certain proceedings, by advertisement, for the foreclosure of a mortgage given by George P. Holcomb and the plaintiff, his wife, to Henry H. and Ephraim Alderman, on the 19th of April, 1869, to secure the payment of $4,500 with annual interest. Fifteen hundred dollars of the principal was payable on the 19th of April, 1870, and the balance in three equal annual installments.

This was an action for false imprisonment. During the three years ending with December 31, 1882, the defendant was sheriff of the city and comity of New York, and, as such, in August of that year received an execution issued against the person of the plaintiff, which, after reciting the recovery of a judgment in the Marine Court by one Gregg against the plaintiff and another for the sum of $83.21, costs, commanded him to arrest the judgment-debtors and to commit them to the…

This action was brought to have a certain assessment imposed by the defendant upon the lands of the plaintiff, for the grading -of a street adjoining it’s property .declared to be void, and the ■collection thereof perpetually restrained. The trial court adjudged the assessment valid and dismissed the complaint upon the merits.

The nature of the action and the facts are sufficiently stated in the opinion. The trial court erred in its conclusion that the plaintiff had not any right, title or interest in the lands and premises in question, and that said lands and premises vested in the residuary devisees of Heinrich A. Haack.

<p>Appeal from a judgment of the general term of the second department, affirming a judgment entered upon the verdict at the Orange circuit of $25,000.</p>

The nature of the action and the facts are sufficiently stated in the opinion. It was error to receive in evidence the deposition of the plaintiff and the testimony of his wife that the plaintiff had no other means of support for himself and wife than what he earned.

The nature of the action and the facts are sufficiently stated in the opinion. It will he presumed in this court, in support of the judgment of the trial court, that the latter found such facts in addition to those specified in its decision, as are essential to sustain the judgment, provided there was evidence to warrant the finding of such additional facts.

The nature of the proceeding and the material facts are stated in the opinion. The board acquired jurisdiction. of the person of the relator. (Allen v. Malcom, 12 Abb. [N. S.] 335; People v. Underwriters, 7 Hun, 248, 252, 253; People v. N. Y. C. Ass’n., 18 Abb. Pr. 271, 283, 284.) All that the relator was entitled to by law and by the constitution and by-laws of the society was an opportunity to be heard.

This action was brought to recover the rent reserved by a lease of a furnished dAvelling-house. The answer pleaded a counter-claim for damages alleged to have been sustained by the defendant on account of a breach of an implied covenant that said house was fit for immediate and permanent occupation.

The nature of the action and the facts are sufficiently stated in the opinion. The goods were in the possession and care of the defendant as a common carrier and not as a warehouseman at the time they were destroyed by fire.

This action was commenced April 16, 1884; the relief asked being that defendants should be declared trustees of certain bonds for the benefit of plaintiffs, and the latter should be held to have a lien upon and a right to such bonds, and that defendents should account for the same. The answer set up the statute of limitations as a defense. The trial court sustained this defense and dismissed the complaint. Further facts appear in the, opinions.

<p>Appeal from judgment of tlie General Term of tlie Supreme Court in tire second judicial department, entered upon an order made December 16,1886, which affirmed a judgment in favor of plaintiff entered upon a verdict.</p> <p>The nature of the action and the facts are sufficiently stated in the opinion.-</p> <p>When a memorandum is made and it is capable of a clear and intelligible exposition * * parol evidence is incompetent to contradict or vary its terms. (Long v. M. I. Co., 1 N. Y. S. R. 38; Reed on Stat. of Frauds, §§ 25, 324; Williams v. Robinson, 73 Me. 195; Hubbard v. Marshall, 50 Wis. 327; Tait v. Allen, 18 Kan. 545; Selp v. King, 28 Tex. 552; 2 Reed on Stat. of Frauds, § 445; Hunt v. Adams, 1 Mass. 518; Mosely v. Hanford, 10 Barn. & Cross. 729; Bookstaver v. Jayne, 60 N. Y. 146; Benton v. Martin, 57 id. 570; Somerby v. Harden, 1 Johns. Ch. 253; Johnson v. McIntosh, 31 Barb. 267; Burbank v. Beech, 15 id. 332; Frost v. Everett, 5 Cow. 497; Martin v. Rapellie, 3 Edw. 229; Hunt v. Blumer, 5 Duer, 202; F. & M. Bk. v. Winfield, 24 Wend. 419; Van Allen v. Allen, 1 Hilt. 524; Irwin v. Sanders, 1 Cow. 249; Ridley v. Dale, 4 N. Y. 486; Lewis v. Jones, 7 Bosw. 356; Brown v. Crawford, 5 Otto, 481.) The contract alleged to be established by Williams, and Nieman’s conversation was iii violation of the Statute of Frauds, (2 Parsons on Contract, 45; Bracegirdle v. Heald, 1 B. & Ald. 722; Roberts v. Rockbottom, Co., 7 Metc. 47; Broadwell v. Getman, 2 Denio, 87; Boydell v. Drummond, 11 East. 142; Herring v. Butters, 20 Me. 119; Peters v. Westborough, 19 Pick. 364; 1 Reed on Stat. of Frauds, §§ 188, 195; Gault v. Brown, 48 N. H. 185; Miles v. Bough, L. R., [3 Q. B.] 845; Walker v. Johnson, 96 U. S. 437; McPherson v. Cox, Id. 401; Childs v. W. C. Co., 13 Wkly. Dig. 59.)</p>

This action was brought to recover damages for an assault and battery which the plaintiff alleged the defendant committed on her April 5, 1883, at a dwelling-house known as Mo. 39 Orange street in the city of Rochester, which dwelling each party claimed to be the owner and in possession of. The battery was committed while each was using more or less force against the other in defending the possession claimed.

This action was brought to compel the defendant to execute and deliver to the plaintiff a satisfaction of a mortgage executed by the plaintiff and Ins wife to the East Brooklyn Savings Bank, and subsequently assigned to defendant, and to deliver up the bond secured by said mortgage.

This was an action for slander. The following facts appear: Since 1880, the plaintiff has been a practicing physician, and in November, 1883, he treated a servant employed in the family of the defendant, and afterwards treated his wife and children. On November 19, 1884, he was called to attend defendant’s child, but his treatment being unsatisfactory, he was, at defendant’s instance, superseded by Dr. John Griffin. The defendant paid the plaintiff for his services.

Alice Douglas commenced an action January 7,1879, against one William F. Warren to recover the sum of $1,078.93 alleged by her to have been fraudently misapplied and embezzled by him. Pursuant to an order of arrest granted on the same day the defendant Warren was arrested by the plaintiff. He was discharged from such arrest after executing and delivering to the sheriff an undertaking in which the appellants joined.

The nature of the action and the facts are sufficiently stated in the opinion. It was error to deny tin* motions to dismiss the complaint made by the defendant aftee the close of the plaintiff’s case, and also after all the testimony was in.

Prior to 1795 one Samuel Stillwell owned a tract of land in the city of Mew York that is now substantially encompassed by Eighth and Eleventh avenues and Eighty-fourth and Eighty-ninth streets in said city.

This action was brought to recover damages for the destruction of two buildings of plaintiffs by fire, alleged to have been caused by the negligence of defendants. The facts are sufficiently stated in the opinion. It was error on the part of the court below to grant the non-suit as to the defendant, Hoses H. Nichols.

<p>Appeal from judgment of the General Term of the Supreme Court in the second judicial department, entered upon an order made February 9, 1886, which ordered judgment upon a verdict directed for defendant at the circuit, subject to the opinion of the General Term.</p> <p>This was an action of ejectment.</p> <p>The facts material to the appeal are set forth in the opinion.</p> <p>If there is any conflict of evidence in a case, or if exceptions have been taken to rulings on the tidal by the defeated party, it is error to direct a verdict subject to the opinion of the court at General Term and a mistrial for which the judgment will be reversed. (Purch v. Mattison, 25 N. Y. 211.) It is not necessary that either party should object to make the error fatal. Nothing short of an express cohsent would be a waiver. (Byrnes v. City of Cohoes, 5 Hun, 602; 67 N. Y. 204.) Independently of the statute of limitations the plaintiff has made out a proper case in ejectment against' defendant. (Territt v. Cowenhoven, 11 Hun, 320; 79 N. Y. 400; People ex rel. v. Howlett, 76 id. 574; 3 Wait’s Act. & Def., 12, 13.) The statute of limitations does not apply, if it does, it was not run for the proper period. (Luce v. Curley, 24 Wend. 451.)</p> <p>The judgment of General Term thereon cannot be reviewed unless a statement’ of facts and the conclusions of law is prepared and filed with the judgment roll. (Reinmiller v. Skidmore, 59 N. Y. 661; Terrett v. Cowenhoven, 79 id. 400; Overing v. Kussell, 32 Barb. 263; Humbert v. Trinity Church, 24 Wend. 689; Sands v. Hughes, 53 N. Y. 296; Toole v. Remsen, 70 id. 303 Reformed Church v. Schwcraft, 65 id. 134; Cugger v. Lansing, 64 id. 417.) Title to land which has been acquired by twenty years adverse possession is equally strong as one obtained by grant. (Sherman v. Kane, 86 N. Y. 57.)</p>

This action was upon a certificate of life insurance dated December 6, 1883, issued by defendant, upon the life of Charles F. Wright. The certificate was payable to Byron D. Houghton, and ivas for the sum of $5,000. The assured died June 4, 1885. In December, 1885, or January, 1886, Houghton assigned his interest in the certificate to plaintiff Avho was the wife of the deceased.

<p>Appeal from judgment of the General Term of the Supreme Court in the third judicial department, entered upon an order made November 16,1886, which affirmed a judgment in favor of plaintiff entered upon the decision of the county judge of Bensselaer county on trial without a jury.</p> <p>This is an action of trespass brought in the County Court, after a suit for the same cause of action, commenced in justice’s court, had been discontinued because a plea of title was interposed by the defendant.</p> <p>The county judge found, as facts, that from 1836 to 1860, two brothers, named John and Elijah Millard, owned as tenants in common a farm of about-one hundred and seventy acres in Bensselaer county upon which there was an apple orchard; that in 1850, they made a paroi partition of said farm by which John was to have one hundred acres including the orchard, and Elijah the remaining seventy acres, and as part of the arrangement between them they made an oral agreement by which Elijah,; his heirs and assigns, were to have the right to enter upon the part belonging to John and gather one-half of the apples, growing or to grow, in said orchard ; that immediately after the paroi partition was made they took possession of their respective portions of the farm and from that time, they and their successors in title, have continued to own and occupy the parts so allotted to them, respectively, without any claim or title being made by either to the land so owned • and occupied by the other; that in 1854 Elijah died leaving a last will and testament by the second clause of which lie devised said seventy acres and the appurtenances to the defendant; that the sixth clause of said will is as follows : “ Sixth. I give and bequeath to Elijah I. Millard and to his heirs and assigns forever all my right, title and interest to the apples, growing or to grow, in the premises now occupied by John Millard;” that the defendant took possession of the seventy acres under the will and occupied them until September, 1861, when he conveyed them “with the appurtenances” to Mary E. Millard, by quit-claim deed, duly recorded, which made no mention of any right, or supposed right, to enter upon the hundred acres and gather one-half of the apples in the orchard thereon ; that March 23, 1810, John Millard conveyed the hundred acres to one William A. Millard by warranty deed duly recorded two days later,, and on March 25, 1880, said William A. conveyed the same premises to the plaintiff by a like deed duly recorded the next day; that neither of these deeds contained any reference to a right, or supposed right, of the owner of the seventy acres to enter on the land thereby conveyed and gather apples and that there is no evidence in the case that tne plaintiff had notice of the existence of any such right or claim ; that soon after plaintiff went into the possession of the hundred acres under said deed, and shortly before the commencement of this action the defendant, by direction of said Mary E. Millard, entered thereon and gathered apples from said orchard to the value of seven dollars, after he had been forbidden to do so by the plaintiff ; that from the time of the paroi partition until the defendant was so forbidden by the plaintiff, Elijah Millard and his successors in title to the seventy acres had annually gathered, apples from said orchard and had never before been prohibited. It was admitted by the parties, although not found as a fact, that twenty new trees were set out in the orchard after the paroi partition.</p> <p>The county judge found as a conclusion of law that the entry of the defendant on the lands of the plaintiff was without right and that he was a trespasser in so doing and judgment was directed against him for the sum of seven dollars, on account, of such trespass, besides costs.</p> <p>The parol partition of the farm of 170 acres of land, made by John and Elijah Millard in 1850, when they were tenants in common, having been followed by possession on their part of the respective portions partitioned, was valid and binding upon them and their heirs and successors in interest, including subsequent grantees and devisees. (Wood v. Fleet, 36 N. Y. 499.) The parol partition, both in regard to the land and the fruit of the orchard, was one entire transaction. (2 Parsons on Contracts [7th ed.], § 519.) Such an agreement in regard to the fruit, whether looked at as connected or unconnected with the paroi partition of the land, is not forbidden by kvw, using that word as including equity. It is a paroi agreement for an easement, which, under certain circumstances, is upheld by the courts. (Pierpont v. Barnard, 6 N. Y. 279; Pierce v. Keator, 70 id. 419; Huntington v. Asher, 96 id. 604; Rindge v. Baker, 57 id. 209; Wiseman Lucksinger, 84 id. 31; Cronkhite v. Cronkhite, 94 id. 323.) The clause in the deed from defendant to Mary E. Millard, reading “ with the appurtenances and all the estate, title and interest therein of the said party of the first part was sufficient to pass the easement to said Mary E. Millard. (Huttemier v. Albro, 18 N. Y. 48; Bigelow on Equity, 307, 308.) A parol license is coupled with a grant and a part of the grant is irrevocable. (Vandenburgh v. Van Bergen, 13 Johns. 212; Vandenburgh v. Van Buren, id. 525; Jamieson v. Milleman, 3 Duer, 255; Babcock v. Utter, 1 Abb. Ct. App. Dec. 27; Mendenhall v. Klinck, 51 N. Y. 246; Winchester v. Osborne, 62 Barb. 337; Rerick v. Kern, 14 S. & R. 267; Ricker v. Kelly, 10 Am. Dec. 38; Goff v. Oberteuffer, 3 Phila. 71; Thompson v. McElarney, 82 Pa. St. 174; U. S. v. B. R. R. Co., 1 Hughes, 138; Wood v. Leadbitter, 13 M. & W. 838; Wood v. Manley, 11 Ad. & E. 34.) Plaintiff is chargeable with constructive notice of the right in question, and is, therefore, not a bona fide purchaser. (Williamson v. Brown, 15 N. Y. 354; Cook v. Travis, 20 id. 400; C. V. Bk. v. Delano, 48 id. 336; Ellis v. Horrman, 90 id. 466; Parker v. Connor, 93 id. 188.) The will having been properly proven and duly recorded in conformity to every requirement of the law at the time of such recording, vested the right to the easement in defendant, and no subsequent purchaser is regarded a bona fide piu’chaser as against such record. (3 R. S. [7th ed.], 2215, 2222, §§ 1, 38; id. 58, § 14; 2 Edm., 59; Laws of 1837, chap. 460, § 18; 4 Edm., 490; Code Civ. Pro., § 2623; Laws of 1846, chap. 182, § 1; Laws of 1869, chap. 748, § 1; Varick v. Briggs, 22 Wend., 543.)</p> <p>The appeal should be dismissed, as the title to real estate does not come in question within the meaning of section 191, subdivision 3 of the Code of Civil Procedure. (Scully v. Saunders, 77 N. Y. 598; Langdon v. Guy, 91 id. 660.) The defendant has failed to show any right, either in himself or in the person for whom he was acting, when the trespass was committed, to enter upon plaintiff’s premises and carry away apples. (Grant v. Chase, 17 Mass. 443; Barker v. Clark, 4 N. H., 380; Grubb v. Guilford, 4 Watts, 223-246; Simmons v. Cloonan, 81 N. Y. 557-565.) The alleged' right to the apples in question was a license and not an easement. (Washburn on Easements; 3 Kent’s Com., 565, 566; Cronkite v. Cronkite, 94 N. Y. 323.) An easement can only be created by deed or grant, or by prescription, from which a grant may be inferred. (3 Kent’s Com., 419.) the tenancy in common consists in nothing but unity in possession; and when that is severed by partition, followed by possession of the allotted portion, it gives to each an exclusive estate in full in that portion. (Jackson v. Bradt, 2 Caines, 174; Jackson v. Harder, 4 Johns. 202; Jackson v. Anderson, 4 Wend., 477.) The plaintiff in this case is conceded to have been a subsequent purchaser in good faith and for a valuable consideration of the 100 acres in which the defendant claims this right. (3 R. S. [7th ed.], 2215.)</p>

new trial. The facts out of which this action arose, are, that in 1872,. Levi P. Wagner, recovered in the court of Common Pleas of Charleston county, state of South Carolina, a judgment against the plaintiff and two other persons for upwards of $4,000, of which judgment the defendant herein was the beneficial owner, although he had not the legal title.

This action was brought to recover the contract price of a car load of dressed beef. The answer averred, by way of counter-claim a warranty, that the meat should be clean, well-dressed, and in first class condition, not heated before being killed, and a breach thereof by reason of which defendant sustained damage. The following facts appeared : The plaintiff is a corporation engaged in buying and slaughtering cattle and selling fresh dressed beef in Chicago.

The nature of the action and the facts are sufficiently stated in the opinion. The complaint should have been dismissed on the ground that there was no evidence that the defendant produced the plays during the term for which judgment was rendered.

The nature of the action and the facts are sufficiently stated in the opinion. No possession was shown prior to the deed by McGowan to Sandford, nor subsequently. (Thompson v. Burhans, 79 N. Y. 99; Nixon v. Walter, 4 Cent. Rep. 875; Price v. Brown, 101 N. Y. 669; Roberts v. Baumgarten, 110 id. 384-5; Miller v. L. I. R. R. Co., 71 id. 380; Gardner v. Heart, 1 id. 528; Stevens v. Hanson, 39 id. 302-304.) The sheriff’s deed did not convey any title.

This was an action to recover damages for an alleged fraud. The complaint alleged that plaintiff, being the owner of certain premises in the city of New York, rented them to the firm of Groot & Chapman, composed of the defendant and two other persons named, for the term of one year from May 1, 1882, at the rent of $4,500, payable quarterly, and, in addition, twelve dollars monthly, janitor’s fees; that, by the terms of the lease, the plaintiff, on default in payment of rent,…

The nature of the action and the facts are sufficiently stated in the opinion. In an action to recover damages for deceit in the sale of property, the false representations must be material to the pecuniary value of the property. They must be of such nature that their truth or falsity would affect the intrinsic character and value of the property itself.

The nature of the action and material facts are stated in the opinion. The plaintiff should have been non-suited. (Suydam v. G. S., etc., R. R. Co. 41 Barb. 375; Spaulding v. Jarvis, 32 Hun, 621; Barker v. H. R. R. R. Co., 4 Daly, 274; Fleckenstein v. D. D. R. R. Co., 105 N. Y. 655; Donnelly v. B. C. R. R. Co., 109 id. 21.) The court erred in allowing the plaintiff to give evidence in regard to her earnings in business as a dressmaker.

The lease was void because not signed by the plaintiff, or his lawful agent, “ thereunto authorized by writing.” (2 R. S. 135, § 6; 4 id. [Banks, 8th ed.] 2589; Woods on Stat. Frauds, 61.) The yearly term expired on August 1, 1885, and defendants having quitted then were not further liable.

<p>Appeal from judgment of the General Term of the Superior Court of the city of Rew York, entered upon an order made March 14, IBS'!, which affirmed a judgment in favor of plaintifE, entered upon a verdict, and affirmed an order denying a motion for a new trial.</p> <p>This was an action to recover damages for personal injuries caused by the alleged negligence of the defendant.</p> <p>The facts are sufficiently stated in the opinion.</p> <p>Not only is there no evidence on the plaintiff’s part of freedom from contributory negligence, but such contributory negligence affirmatively appears from the uncontradicted evidence. (Johnson v. H. R. R. R. Co., 20 N. Y. 65; Reynolds v. N. Y. C., etc., R. R. Co., 58 id. 248; Cordell v. N. Y. C., etc., R. R. Co., 75 id. 330, 332-333; Tolman v. S., etc., R. R. Co., 98 id. 198, 202, 204; Galvin v. Mayor, etc., 112 id. 223, 228; Hart v. H. R. B. Co., 84 id. 56; Hanrahan v. M. R. Co., 53 Hun, 420; Cummins v. City of Syracuse, 100 N. Y. 637; Dubois v. City of Kingston, 102 id. 219; Palmer v. P. R. R. Co., 111 id. 488; Taplin v. R. R. Co., 106 id. 136, 142.)</p> <p>There was no error committed in the ruling in regard to the admission of testimony. (Crosby v. Day, 81 N. Y. 242; Bergman v. Jones, 94 id. 51; Levin v. Russell, 42 id. 251; Quimby v. Strauss, 90 id. 664; Crosby v. Day, 81 id. 242; 1 Greenleaf on Evidence, § 102; Teachout v. People, 41 N. Y. 7; Guitermann v. S. Co., 83 id. 358, 366.) Four witnesses testified that the hole existed and was unguarded, and that there was no light upon the platform near the place of the accident, and thgt it was so dark that they could not see the hole. This was conclusive proof of negligence. (S. & R. on Neg., § 447; Martin v. G. N. R. Co., 16 C. B. 179; Cornman v. E. C. R. Co., 4 H. & N. 781.) The claim that in cases where the defendant is passive and the plaintiff active, that the want of contributory negligence must be proved by direct testimony, and cannot be inferred from circumstances, is not supported by principle or authority. (Johnson v. H. R. R. R. Co., 20 N. Y. 64; Tolman v. S., etc., R. R. Co., 98 id. 198; Ernst v. H. R. R. R. Co., 35 id. 9; Wilds v. H. R. R. R. Co., 24 id. 430; Lea v. Troy, etc., Gas Co., 98 id. 115; Maher v. Cent. Park, etc., R. R. Co., 67 id. 52; Jones v. N. Y. C. R. R. Co., 10 Abb. [N. C.] 200; Tabor v. D., etc., R. R. Co., 71 id. 489; Nowell v. Mayor, etc., 54 Supr. Ct. 382; Mayo v. B., etc., R. R. Co., 104 Mass. 137; Prentiss v. Boston, 112 id. 43; Bill v. Smith, 39 Conn. 206; Johnson v. H. R. R. R. Co., 20 N. Y. 64; Morrison v. N. Y. C. R. R. Co., 63 id. 643; N. C. R. R. Co. v. State, 31 Md. 357; Gay v. Winter, 34 Cal. 153; McDougal v. C. R. R. Co., 63 id. 431; Greenleaf v. I. C. R. R. Co., 29 Iowa, 14; Allen v. Willard, 57 Penn. St. 374; C., etc., R. R. Co. v. Rowan, 66 id. 393; Thomas v. D., etc., R. R. Co., 29 Fed. Rep. 731; Thomas v. D., L. & W. R. R. Co., 11 Rep. 739; Willey v. Mulledy, 78 N. Y. 310; Hart v. H. R. R. Co., 80 id. 622; Mahony v. City of Buffalo, 91 id. 657; Schwandner v. Birge, 33 Hun, 186; Cassidy v. Angel, 12 R. I. 447; Tolman v. S., etc., R. R. Co., 98 N. Y. 198; Reynolds v. N. Y. C. R. R. Co., 58 id. 248; Greenleaf v. I. C. R. R. Co., 20 Iowa, 14; Brown v. C. P. R. R. Co., 68 Cal. 171; Johnson v. H. R. R. R. Co., 20 N. Y. 64; Schwandner v. Birge, 33 Hun, 186; Cassidy v. Angel, 12 R. I. 447.) Admitting, for the purpose of argument only, that the ease at bar from its nature camés within the rule sought to be established by the defendant, and positive evidence is necessary to prove the want of contributory negligence, there is such evidence that the plaintiff did all those things which the defendant claims to be essential to her recovery. (Tolman v. S., etc., R. R. Co., 98 N. Y. 198; Becht v. Corbin, 92 id. 558; Connolly v. N. Y. C. R. R. Co., 88 id. 346; Greany v. L. I. R. Co., 101 id. 409; Hoffman v. U. F. Co., 68 id. 386; Bell v. N. Y. C. R. R. Co., 29 Hun, 560; Hart v. H. R. R. Co., 80 N. Y. 622; Northrup v. N. Y. O., etc., R. R. Co., 37 Hun, 295; Vorst v. L. S., etc., R. R. Co., 54 id. 346; Kellogg v. C. R. R. Co., 79 id. 72.) The damages awarded were not excessive. (Coleman v. Southwick, 9 Johns. 51; Austin v. S. & R. R. R. Co., 20 Barb. 285; Hegeman v. W. R. R. Co., 16 id. 353; Minick v. City of Troy, 19 Hun, 253; Bierbauer v. R. R. Co., 77 N. Y. 588; Gale v. R. R. Co., 13 Hun. 1; 2 Wood’s Railway Law, 1226, note 2.) The verdict was not contrary to the evidence, and should not be disturbed. Cornman v. E. C. R. Co., 14 H. & N. 787; Sher. & Red. on Neg. 518, note 2; N. J. R. R. Co. v. Kennard, 21 Penn. St. 203; Pierce on Am. R. Law, 475; Hegeman v. W. R. Co., 13 N. Y. 9.)</p>

The nature of the action and the facts are sufficiently stated in the opinion. The refusal of the trial court to find that the defendant had notice of the restriction at the time of pinchase, and his finding that defendant had no such notice were errors of law. (Sickels v. Flanagan, 79 N. Y. 224.) The defendant cannot succeed on the defense of the court-yard agreement, as -she had notice of it when she purchased.

<p>Appeal from judgment of the General Term of the Superior Court of the city of Hew York entered upon an order made May 4, 1887, which affirmed a judgment in favor of defendant entered upon a decision of the court on trial at Special Term.</p> <p>This action was upon a policy of marine insurance.</p> <p>The material facts are stated in the opinion.</p> <p>As a policy of insurance is a unilateral instrument prepared by the insurer, its provisions are to be construed strictly against the insurer, f avorably to the insured. (May on Ins., §§ 175, 176). The contract of insurance gave to plaintiffs a right of indemnity from defendants foi the loss sustained by them in the .sinking of the vessel, notwithstanding such loss was caused by the negligent act of one of the mariners. (Huron v. A. M. Ins. Co., 63 N. Y. 77, 86; Davidson v. Burnand, L. R. [4 C. P.], 117; Holder v. M. M. Ins., Co., L. R. [17 Q. B. Div.] 354; P. Ins. Co. v. E. T. Co., 117 U. S. 323.) This right of recovery is not defeated by any provision contained in the bill of lading. (P. Ins. Co. v. E. T. Co., 117 U. S. 312, 321; Jackson Co. v. B. M. Ins. Co., 139 Mass. 508, 510.)</p> <p>The agreement in the bill of lading having made it impossible for the plaintiffs to do what they agreed with the defendant to do, they cannot recover. (Bank of Kentucky v. A. E. Co., 93 U. S. 174, 183; R. R. Co. v. Lockwood, 17 Wall. 357; R. R. Co. v. Pratt, 22 id. 123; The Brantford City, 29 Fed. Rep. 373; P. I. Co. v. E. & W. T. Co., 117 U. S. 312; Rintoul v. N. Y. C. R. R. Co., 21 Blatch. 439; Platt v. R. Y. R. & C. R. R. Co., 108 N. Y. 364; Carstairs v. M. & T. Ins. Co., 18 Fed. Rep. 473; M. M. Ins. Co. v. Calebs, 20 N. Y. 173, 175; 2 Phillips on Ins., 407, 408, §§ 1685, 1741; A. Ins. Co. v. Storrow, 1 Edw. Ch. 621; 5 Paige, Ch. 285; Inman v. S. C. R. R. Co., 129 U. S. 128.) The vessel was not shown to be seaworthy. (Van Wickle v. M. Ins. Co., 97 N. Y. 350, 353.) The proof that there was no storm or collision showed that the vessel was not sunk by a sea peril. (Atkinson v. G. W. Ins. Co., 65 N. Y. 553; Grim v. P. Ins. Co., 13 Johns. 451; Riggin v. P. Ins. Co., 7 H. & J. 279; Cleveland v. N. Ins. Co., 8 Mass. 308; 2 Arnould on Mar. Ins., 774, 777.)</p>

The complaint in this action alleged that the plaintiffs, as a limited partnership formed pursuant to the Code of Virginia under the firm name of “H. Rosenberg,” on the 4th of August, 1882, delivered to the defendants, as commission merchants, a quantity of merchandise for sale; that the defendants, as the agents of the plaintiffs, sold the same for $800, which they received but have not paid over, although due demand has been made therefor.

<p>The record of a deed, to be effectual as evidence of a conveyance of a legal title to the land described, must, in some manner, represent that the instrument was sealed.</p> <p>Without the seal, the record simply represents a conveyance of the equitable title.</p> <p>When, however, the attestation clauses in and to the deed as recorded, represent it to have been sealed, and the deed subsequently produced, or a record thereof subsequently made, shows a seal, the previous record furnishes no affirmative evidence of the absence of a seal at the time it was made, such as to require, to sustain the claim that the conveyance was duly sealed, evidence that the seal was not surreptitiously placed thereon after that record.</p> <p>In an action to recover back an installment of purchase-money paid upon a contract for the sale and conveyance of a legal title by defendant to plaintiff of certain premises, the latter claimed a defect of title in that the deed under which defendant claimed was without a seal; she produced in evidence a record of the deed ; the attestation clause stated the grantor had thereunto “ set her hand and seal.” Under the signature was the words "sealed and delivered in the presence of” P., who it appeared took the acknowledgment. There was no mark after the name of the grantors indicating a seal, but simply a dash. An employe in the register’s office f oí many years testified that a dash was the customary mark to denote the absence of a seal when an instrument was recorded ; he also testified it was the custom of the office to return a paper left for record requiring a seal and having none, if its absence was noticed. Defendant’s evidence was to the effect, that, about three years after the conveyance, on application to it for a loan, secured by mortgage on the property, its counsel, discovering that no seal appeared on the record, obtained the original deed, upon which was a seal, and procured it to be again recorded; the record showing a seal. P. testified that he witnessed the execution of the deed, and took the acknowledgment, and that there was then a seal upon it; that his attention was particularly called to that fact; that when he took acknowledgments of such instruments he invariably looked to see if there were seals after the signatures. The court found that the deed was not sealed at the time of its delivery. Held, error; that the record as first made was simply ineffectual as evidence of the conveyance of a legal title and did not operate as a notice of such a conveyance; that the declaration of the grantor and the subscribing witnesses to the effect the deed was sealed, together with the fact when afterwards found and recorded it had a seal, required, in the absence of evidence to the contrary, the conclusion that the seal was upon it when delivered; and that no such opposing evidence was furnished by the original record.</p>

Appeals from judgments rendered by the General Term of the Supreme Court in the first judicial department, entered upon orders made March 31, 1887, which affirmed a judgment in the action first above entitled in favor of defendants and a judgment in action second above entitled in favor of plaintiffs, both of which were entered upon the reports of a referee.

The nature of the action and facts are sufficiently stated in the opinion. Mrs. Sanford is a subsequent incumbrancer, and is barred by the proceedings subsequent to the filing of the lis pendens. (Old Code, § 132; Ostrom v. McCann, 21 How. 431; Fuller v. Scribner, 76 N. Y. 190; 16 Hun, 130; Cleveland v. Boreum, 24 N. Y. 622.) The title of the defendant to the premises in question was free from any and all defects and was a good, valid and marketable title.

The nature of the action and the facts are sufficiently stated in the opinion. The act of 1875, and prior statutes of the same character, are not within the lawful exercise of legislative power and are void.

judgment in favor of plaintiff entered on a verdict. The nature of the action and the facts are sufficiently stated in the opinion. Grave errors were committed in the admission and exclusion of evidence as to value of the property. (Reed v. Rome, 48 Henry 231; Sthurm v. Williams, 38 N. Y. Super. 325.) The motions, to dismiss the complaint or to direct a verdict for the defendants, which were made at the close of the case, should have been granted.

The nature of the action and the facts are sufficiently stated in the opinion. Whatever may have been the previous liability of the defendant for license fees, the act of 1874 (chap. 478), was in words or in substance a new charter granted to the defendant by the state for a consideration, to-wit, the extension of the defendant’s railroad and the increased public accommodation afforded by such extension.

This action was brought to recover damages for injuries alleged to have been caused by defendant’s negligence.

The nature of the appeal and the facts, so far as material, are stated in the opinion. The hoard of claims had jurisdiction to hear and determine the claim. (Clement v. State, 105 N. Y. 621; Heacock v. State, Id. 246; Collins v. State, Id. 641; Reed v. People, 13 N. Y. S. Rep. 815.) The statute of limitations is not a bar, t.o the whole at least, of the claimant’s claim.

The nature of the action and the facts are sufficiently stated in the opinion. The Devised Statutes have not changed the law so far as it affects James Albert’s interest. (R. S., chap. 6, tit. 1, § 52; Mowatt v. Carow, 7 Paige, 328; Smith v. Pybus, 9 Ves. 567; Wylie v. Lockwood, 86 N. Y. 291.)

This action was brought to set aside an assignment for the benefit of creditors. On and prior to May 17,1884, Charles McCulloch Beecher, Frank B. Johnson and Walter S. Baillie, were partners under the name of C. McCulloch Beecher & Co. They were engaged in business as commission merchants at the city of Bew York, and had a branch house at the city of Bio de Janiero.

The nature of the action-and the facts are sufficiently stated in the opinion. An appeal lies to this court from the order granting a new trial. (Harris v. Burdett, 73 N. Y. 136; Baylies on New Trials, 281.) The damages sustained by plaintiff in consequence of the defendant’s breach were the moneys expended in the examination of title.

The nature of the action and the material facts are sufficiently stated in the opinion. A mill-owner having title to the running water of a stream, by which his mill is operated, has a right of action against any person who has diverted such stream by any process which took the water after it had become a part of- the open running water-course.

This action was brought upon a draft drawn by defendant, payable to plaintiff’s order, payment of which was refused by the bank. The material facts are stated in the opinion. The defendant cannot set up the claim of a third party, where it is not affected by such claim.

This action was brought to foreclose a mortgage executed by defendant, Franklin Sweet, to Francis Creed, hearing date May 1, 1873, to secure the payment of $2,000, in five years thereafter, said sum being a part of the sum of $2,500, the purchase-price of a farm or a lot of land at, that time conveyed by said Creed to said Sweet.

This action was brought to recover the sum of $654, being the amount of an alleged overpayment upon a check drawn on the plaintiff by one of its depositors, which was fraudulently raised.

This is an action of ejectment for non-payment of rent. By a sealed indenture dated June 14, 1808, Stephen VanRensselaer granted, sold and released to George Adriance and Rachel Witbeck, their heirs and assigns, the premises first described in the complaint, with certain exceptions and reservations, to have and to hold the same “ unto the said-parties of the second part * * * their heirs and assigns for ever; yielding and paying therefor * * * during the continuance of this…

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

This action was brought by the plaintiff to recover damages for personal injuries occasioned by the fall of an elevator. The case has neen twice tried. On the first trial the complaint was dismissed. This was reversed by the General Term and a new trial was ordered. (Reported below 13 Daly, 208.) On the second trial the jury rendered a verdict for the defendants, and this appeal is to review such judgment.

The nature of the action and the facts are sufficiently stated in the opinion. It is the legal right of counsel to submit to the court propositions of law, and the court is bound to instruct the jury upon each proposition so submitted.

<p>Plaintiff, in 1848, conveyed to the town of Yonkers a tract of land in the village of Yonkers; by the terms of his deed the conveyance was upon the condition that a certain portion of said land should thereafter be and remain a part of a street named, and ■ never be used for any other purpose, and that the residue of the premises conveyed “shall forever hereafter remain ¡iuhlic and open as a public highway, and that no house, building or other erection whatsoever, except a public monument, shall ever be built or erected or permitted upon the said land, or any part thereof.” The village was not then, hut was afterward incorporated, and subsequently was incorporated as a city, and vested with the rights of property of the town. (Chap. 331, Laws of 1855; chap. 866, Laws of 1873.) In an action of ejectment based on tlie ground of a breach of said conditions, evidence was given tending to show that the premises in question were, at the time of the conveyance, bounded by a building, which was afterward taken down and a new one erected, the wall of which encroached about sixteen inches upon said, premises; the location of the line however was in dispute, and there was other evidence to the effect that there was no encroachment, and if any in fact existed, it did not appear it was with defendant’s knowledge. It also appeared that an area on the south [side of said building further encroached about six feet upon said premises; that said area was covered by a sidewalk in which was a grating and a door covering a stairway, which, when open, is an obstruction, but when closed is, with the grating, flush with the sidewalk. It did not appear that the door had, by being left open, been an obstruction. Held, that while the purpose of the conditions was to preserve the use of the premises for a street or public highway, and anything erected upon them inconsistent with that use would be a violation thereof, it could not be assumed that what is usually or commonly permitted or required in streets of villages and cities came within the prohibition, and the construction of the area was not an erection upon the land within the meaning of the conditions, nor was it rendered so by use.</p> <p>Also, held, that the city was not chargeable with notice of any encroachment of the wall of the building upon the premises, and, conceding it existed as, it was without permission or knowledge on the part of the city, it could not be held to be a breach of the condition; that to justify such a claim and thereby to defeat the title, it must appear that the encroachment was in some sense permitted by the city.</p> <p>The ground upon which the title of a grantee may be defeated and a claim of forfeiture supported, as for breach of condition subsequent, must be substantial and clearly established.</p> <p>It seems, the duty imposed upon the municipal authorities was that of diligence to protect the premises for the declared public use and against the prohibited invasion, and they were required to observe that of which reasonable diligence would advise them in that respect.</p> <p>It seems, also, that a grantor of property for a specified public use, may subject the title to liability of forfeiture for breach of a condition expressed in his deed.</p> <p>It appeared that plaintiff had observed the erection of the building, the wall of which it was claimed encroached on the reserved premises in 1857; that he knew when the wall was rebuilt in 1866, and protested, but never called the attention of defendant’s board of trustees to the matter. Held, it could not be held as matter of law that he waived his right to assert by action the alleged breach.</p>

<p>Appeal from judgment of tlie General Term of the Supreme Court in the fifth judicial department, entered upon an order made the first Tuesday of January, 1887, which affirmed a judgment in favor of plaintiff entered upon a verdict, and affirmed an order denying a motion for a new trial.</p> <p>Since September 3, 1877, Elton M. Smith has owned a farm of fifty acres in the town of Galen, in this state, upon which there is a farm-house and out-buildings. The defendant insured one of the barns for $600, and its contents for $500, against any damage, not exceeding the sums specified, that should be caused by fire between October 6, 1881, and October 6, 1884.</p> <p>On the first day of April, 1882, the barn and its contents were destroyed by fire, and this action was brought on the policy by the assignee of the insured, to recover the damages which are alleged to be $600 by the loss of the barn, and $359.15 by the loss of the contents; total, $959.15. The jury found for the plaintiff on the issues submitted, and assessed the damages at the amount claimed, and added $129.85 for interest, making the total amount of the'verdict $1,089.</p> <p>Further facts appear in the opinion.</p> <p>The motion for a non-suit at the close of the plaintiff’s case, and upon the close of the proofs, should have been granted upon the ground that at the time of the issuing and delivery of the policy of insurance by the defendant to Elton M. Smith, his interest in the property insured was not the entire, unconditional and sole ownership of the same for the use and benefit of the assured. (Lasher v. S. J. F. & M. Ins. Co., 86 N. Y. 423; 18 Hun, 98; Rohrback v. G. Ins. Co., 62 N. Y. 47.) The motion for non-suit should have been granted upon the ground that the premium not having been paid before the fire, the policy had ceased to be operative. (Wall v. H. Ins. Co., 36 N. Y. 157; Klein v. Ins. Co., 104 U. S. 88; Thompson v. Ins. Co., Id. 252; Wheeler v. C. L. Ins. Co., 82 N. Y. 543, 550; Roehner v. K. Ins. Co., 63 id. 160; Clausen v. Russell, 18 Wkly. Dig. 10; Att'y Gen'l v. Ins. Co., 82 N. Y. 173, 190; Holly v. M. Ins. Co., 105 id. 437, 444; May on Ins. § 341; Baker v. U. M. L. Ins. Co., 43 N. Y. 283, 287; Howe v. U. M. L. Ins. Co., 80 id. 32; Cohen v. C. F. Ins. Co., 67 Tex. 325.) Weed, the solicitor or agent of the company, was authorized only to receive applications for insurance and collect and transmit the premiums, and had no authority to issue policies or to extend the time for the payment of the premium beyond the time fixed by the policy. (Crichett v. A. Ins. Co., 36 Am. R. 230; 53 Ia. 404; 22 Alb. L. J. 137; Hutchins v. Munger, 41 N. Y. 158.) The admission of the receipt for the premium upon the policy in suit under defendant’s objection and exception was error. (Robertson v. M. L. Ins. Co., 88 N. Y. 541, 545; Bennecke v. C. Ins. Co., 105 U. S. 355, 359; Harle v. C. B. Ins. Co., 71 Ia. 401; 32 N. W. Rep. 396; Robinson v. C. Ins. Co., 43 id. 647; McMartin v. C.Ins. Co. 42 id. 934; F. C. Ins. Co. v. School Directors, 4 Ill. App. 145; Garlick v. N. V. Ins. Co., 44 Ia. 553; 3 L. & E. Rep. 498.) The evidence offered by the plaintiff to show that the witness had procured policies of the defendant prior to the issuing of the policy in suit, through other and different agents of the company, upon which credit was extended to him for the premiums, which were subsequently paid by him during the life of the policy, was incompetent. (Wood v. P. Ins. Co., 32 N. Y. 619, 623.) A payment of premium upon an insurance policy made by a third person without the knowledge or consent of the assured, even though made with his money, would not bind him or the company, and if made with his money the amount so wrongfully appropriated could be recovered back by him. Whiting v. M. M. L. Ins. Co., 129 Mass. 240.) The policy of insurance was void at the time of the fire by reason of the incumbrances upon the property covered by the policy, and not disclosed to the company or its agent. (Eagen v. M. Ins. Co., 5 Denio, 326; Merrill v. A. Ins. Co., 73 N. Y. 452, 466; Gould v. H. P. Ins. Co., 16 Hun, 538; Sentell v. O. C. F. Ins. Co., 16 id. 516; McNierney v. A. Ins. Co., 48 id. 239; Hayward v. N. E. F. Ins. Co., 10 Cush. 444; Brown v. P. Ins. Co., 11 id. 280; B. Ins. Co. v. Winslow, 8 Gray, 38; Falis v. C. Ins. Co., 7 Allen, 46; Towne v. F. Ins. Co., 7 id. 51; Van Buren v. S. J. Ins. Co., 28 Mich. 398.) The statement in the application upon which the policy of insurance in question was issued, that the property was incumbered $1,000, is a warranty that the property was not incumbered to an amount exceeding $1,000. (Sentell v. O. C. F. Ins. Co., 16 Hun, 516; B. Ins. Co. v. Winslow, 8 Gray, 38; Falis v. C. Ins. Co., 7 Allen, 46; Towne v. F. Ins. Co., Id. 51; May on Ins. § 156; Angel on Ins. §§ 140, 141; Ripley v. E. Ins. Co., 39 N. Y. 136, 163; Bryce v. L. Ins. Co., 55 id. 244; Rohrback v. G. Ins. Co., 62 id. 62; Duncan v. S. Ins. Co., 6 Wend. 488; Wood v. Il. F. Ins. Co., 13 Conn. 533; Bennett v. A. Ins. Co., 50 id. 420; Barteau v. P. Ins. Co., 67 N. Y. 595.) Under the condition in the application signed by Smith, that no statement made or information given by the assured prior to the issuing of the policy shall he deemed to be made to the company, unless reduced to writing and incorporated in the application, this evidence of Smith was clearly immaterial and incompetent, and the charge of the court was error. (Chase v. H. Ins. Co., 20 N. Y. 52; Rohrback v. G. Ins. Co., 62 N. Y. 63; Alexander v. G. Ins. Co., 66 id. 467; Barteau v. P. Ins. Co., 67 id. 595; N. Y. L. Ins. Co. v. Fletcher, 117 U. S. 519, 528; Pollock v. Pollock, 71 N. Y. 137, 140; Murray v. Harway, 56 id. 346; Mason v. Lord, 40 id. 477.) The trial court erred in its charge to the jury that if Smith stated at the time he made the application that the incumbrance was over $2,000, then the plaintifi was entitled to recover in this action, so far as that question was concerned. (Hayward v. N. E. Ins. Co., 10 Cush. 444; Brown v. People's Ins. Co., 11 id. 280; Sentell v. O. F. Ins. Co., 16 Hun, 516.) The statement in the application that the amount of incumbrances upon the property was $1,000 is binding and conclusive upon the assured, and the evidence offered and received upon the trial, under the defendant’s objection and exception, that any other or different statement in relation to the incumbrances was made, was immaterial and incompetent, and this judgment must be reversed for the error of the court in admitting such evidence. [Rohrback v. G. Ins. Co., 62 N. Y. 47; Alexander v. G. Ins. Co., 66 id. 464; Kabok v. P. Ins Co., 4 N. Y. Supp. 718; Grace v. A. C. Ins. Co., 109 U. S. 278.) Under the condition of fire-policy rendering the same void, if the property is incumbered rvitliout notice to the company, the contract is not severable, and the incumbrances upon the real property not being truly represented to the conrpany rendered thfe policy void, both as to-the real and personal property mentioned therein. (Merrill v. A. Ins. Co., 73 N.Y. 452; McNierney v. A. Ins. Co., 48 Hun, 239.)</p> <p>The case at bar is one where the assured made a true statement, which was incorrectly or fraudulently reduced to writing by the authorized agent of the company. (Bennett v. A. Ins. Co., 106 N. Y. 243-49, Grattan v. M. L. Ins. Co., 92 id. 274; Flynn v. E. L. Ins. Co., 78 id. 568; Chase v. H. Ins. Co., 20 id. 52.) The fraud or mistake being thus established, there can be no question as to the right on the part of the plaintiff to have this portion of the application reformed so as to make it state correctly the answer of the assured, as same was found to have been made to the agent of defendant. (Grattan v. M. L. Ins. Co., 80 N. Y. 281-294; Arthur v. H. F. Ins. Co., 78 id. 462; Grattan v. M. L. Ins. Co., 92 N. Y. 274, 282-286.) The repeated attempts on the part of Weed to collect the premium was a waiver. (Robinson v. P. F. Ins. Co., 18 Hun, 395; Pechner v. P. Ins. Co., 65 N. Y. 195; Bowman v. A. Ins. Co., 59 id. 521.) There is no proof of an incumbrance upon the personal property, or of a warrant of title thereto by the assured.(Holmes v. Drew, 16 Hun, 491.) The motion for new trial was properly denied, as the appellant did not sufficiently point out the supposed grounds of error. (Cooke v. Leonard, 17 Wkly. Dig. 575.)</p>

The nature of the action and the facts are sufficiently stated in the opinion. The injury was the result of plaintiff’s own negligence, and he should not have recovered.

<p>Appeal from a judgment of the general term, fourth department, affirming a judgment entered upon a verdict, and an order made upon the minutes, denying a motion for a new trial.</p>

The nature of the action and the facts are sufficiently stated in the opinion. The defendant was not shown to be guilty of any negligence contributing to the injury. (Morris v. N. Y. C. R. R. Co., 106 N. Y. 678; Lafflin v. B. & S. W. R. R. Co., Id. 136; Palmer v. P. Co., 111 id. 488; Kelly v. M. R. Co., 112 id. 443; Kelly v. N. Y. & S. B. R. R. Co., 109 id. 44; Wangler v. Swift, 90 id. 45; M. R. R. Co. v. Jackson, 3 App.

<p>Appeal from judgment of tlie General Term of the Supreme Court in the fourth judicial department, entered upon an order made July I, 1881, which affirmed a judgment in favor of plaintiff entered npon a verdict, and affirmed an order denying a motion for a new trial.</p> <p>The statement of the defendant relied npon as the foundation of this action as a warranty, was not intended as such by the defendant, and apparently was not relied upon at the time of the contract, and does not, under the circumstances, constitute a warranty. (Swett v. Colgate, 20 Johns. 196; O. Mfg. Soc. v. Lawrence, 4 Cow. 440; Reed v. Randall, 29 N. Y. 358-361; Rust v. Eckler, 41 id. 488, 491; Hoe v. Sanborn, 21 id. 552; Day v. Pool, 52 id. 416, 420.) The question of the construction of the language used on which this express warranty alleged in the complaint is founded, should not have been submitted to the jury, as it was done. (Dwight v. G. L. Ins. Co., 103 N. Y. 341.) Plaintiff waived his right to damages by paying for this refrigerator after he had discovered the alleged defect. (M. M. P. Co. v. Remington, 109 N. Y. 143; Brown v. Burhans, 4 Hun, 227; G. C. M. Co. v. Mann, 24 Wkly. Dig. 483; Bennett v. Buchan, 76 N. Y. 386.) Plaintiff having known of the alleged defect before putting in his poultry, should not recover for its loss. (1 Sutherland on Dam. 141; Short v. Kalloway, 11 A. & E. 28; Whrightup v. Chamberlain, 7 Scott, 598.) The basis of value of the damaged chickens were furnished only by the evidence of the plaintiff himself, and he was not shown competent to speak on the subject. (Harris v. P. R. R. Co., 58 N. Y. 660; Graham v. Maitland, 6 Abb. Pr. [N. S.] 327; 1 Sweeney, 149; Harris v. Ely, 1 Seld. Notes, 35; Greeley v. Stilson, 27 Mich. 153; Terpenning v. C. E. Ins. Co., 43 N. Y. 279; Bush v. W. F. Ins. Co., 2 T. & C. 629; Whelan v. Lynch, 60 N. Y. 469.) The mere fact that a witness has once bought or sold the very article in question does not necessarily qualify him to express an opinion upon its value, although the price he paid or received may be competent evidence. (Watson v. Bauer, 4 Abb. Pr. [N. S.] 272; Smith v. Hill, 22 Barb. 656; Chambovet v. Cagney, 2 J. & S. 474, 489.) The rule of damages as applied on this trial as to the refrigerator was erroneous, and sufficient alone to reverse the judgment. (M. M. P. Co. v. Remington, 109 N. Y. 143.)</p> <p>Plaintiff had the right to show what the chickens would be worth in market at the time and place contemplated in the bargain as the time and place of sale, and the amount, less transportation and commission in selling, and what was realized from chickens sold, added to the damages on the freezer, would be the correct measure of damages. (Passinger v. Thorburn, 34 N. Y. 634; White v. Miller, 71 id. 133; Day v. Poole, 52 id. 419, 420; Wakeman v. W. & W. M. Co., 101 id. 205; Reed v. McConnell, Id. 276; Dart v. Laimbeer, 107 id. 669.) The motion for a non-suit when plaintiff rested, should have been denied. (Briggs v. Hilton, 99 N. Y. 517; Day v. Pool, 52 id. 416; Dounce v. Dow, 57 id. 15; Kent v. Friedman, 101 id. 616.)</p>

<p>Appeal from an order of the General Term of the Supreme Court in the first judicial department, made March 31, 1887, which reversed a judgment in favor of plaintiff entered upon a decision of the Special Term, and granted a new trial.</p> <p>The nature of the action and the facts are sufficiently stated in the opinion.</p> <p>As the order of reversal does not state that it was made upon the facts, this, court is bound to presume that it was on questions of law, and to reverse it if no error of law is shown. (Code Civ. Pro. § 1338; Lewis v. Bouton, 106 N. Y. 70.) The facts found amply support the judgment. (Meehan v. Forrester, 52 N. Y. 275; Hart v. Ten Eyck, 2 Johns. Ch. .) The court cannot, on the case as presented, determine whether or not the finding was without evidence to support it. (Porter v. Smith, 107 N. Y. 531; 35 Hun, 118.) The finding that Hewlett had notice of the deed to plaintiff is not without evidence tending to sustain it. (Dolan v. Merritt, 18 Hun, 27; 3 Wait’s Pr. 307; Bennett v. Johnson, 21 N. Y. 238; Baylies on N. T. & App. 174, 290; Cox v. Pierce, 112 N. Y. 637; Dunn v. Hornbeck, 72 id. 80, 89; Thomas on Mort. §§ 489, 490; Flagg v. Mann, 2 Sum. 554; Read v. Gannon, 50 N. Y. 345; Ellis v. Hoorman, 90 id. 466.) The Lawtons being the attorneys and agents for Hewlett, notice to them was, in law, notice to Hewlett. (Bank of U. S. v. Davis, 2 Hill 451; Ingalls v. Morgan, 10 N. Y. 178, 184, 185; Dillon v. Andrews, 43 id. 231, 238; Bank v. Frank, 13 J. &. S. 415; Holden v. N. Y. & E. Bank, 74 N. Y. 286, 292; Craigie v. Hadley, 99 id. 131-134.) The defendant Schwannecke is in no better position than Hewlett. (Davis v. Duffrie, 18 Abb. Pr. 360; Dias v. Merle, 4 Paige, 259; Winslow v. Clark, 47 N. Y. 261; Hickock v. Scribner, 3 Johns. Cas. 311; 2 Jones on Mort. § 1101; Thomas on Mort. § 705; Raynor v. Wilson, 6 Hill, 469; Wood v. Chapin, 13 N. Y. 520; Gillig v. Mass, 28 id. 208; Tabbell v. West, 86 id. 288.) There was no contradiction of Slattery’s evidence that he made the tender, and that it was refused. It was proj)erly made to Hewlett’s attorney and agent. (Miner v. Beekman, 11 Abb. [N. S.] 147; Thomas on Mort. 235; Beach v. Crooke, 28 N. Y. 535.) If plaintiff is entitled to redeem, the right to redeem carries with it the right to an accounting. (Pratt v. Stiles, 9 Abb. Pr. 150.)</p> <p>The court at Special Term erred in finding that the defendant Hewlett, at and before the commencement of the action to forclose said mortgage, had actual and express notice of the deed to Margaret Slattery. (Constant v. University, 111 N. Y. 604, 611.) Even if absolute proof of personal notice to Mr. Hewlett individually, before the commencement of the foreclosure, could be found in the case, this would not sustain the judgment of the Special Term. (Code Civ. Pro. § 1671; Stern v. O'Connoll, 35 N. Y. 104; Lamont v. Cheshire, 65 id. 30, 38; Ayrault v. Murphy, 54 id. 203; Kindberg v. Freeman, 39 Hun, 466; Kipp v. Brandt, 49 How. Pr. 358; Ostram v. McCann, 21 id. 431; Hall v. Nelson, 23 Barb. 88; 14 How. Pr. 32.) The judgment was properly reversed as to the defendant Selnvanneeke, as to whom no notice of any kind is pretended. (Wood v. Chapin, 13 N. Y. 509; Fort v. Burch, 5 Denio, 187; Westbrook v. Gleason, 79 N. Y. 23, 31; Decker v. Boice, 83 id. 215, 221; Varick v. Briggs, 6 Paige, 323; Jones on Mort. § 583; L. F. Co. v. L. G. & F. Co., 82 N. Y. 476; Jackson v. McChesney, 7 Cow. 360.) Even if the plaintiff could sustain the claim for redenrption, a new trial would be necessary, for the reason that the judgment of the Special Term is erroneous with respect to the principles laid down in it as to which redemption is to, be had. (Packer v. R. & S. R. R. Co., 17 N. Y. 283; Hart v. Wandle, 50 id. 381; Gage v. Brewster, 31 id. 218; Winslow v. Clark, 47 id. 261; Raynor v. Selmes, 52 id. 579; Vanderkemp v. Shelton, 11 Paige, 28; Parker v. Child, 25 N. J. Eq. 41; Seward v. Huntington, 94 N. Y. 104, 114; Franklyn v. Hayward, 61 How. Pr. 43; Mickles v. Dillaye, 17 N. Y. 80; Wetmore v. Roberts, 10 How. Pr. 51; Fogal v. Pirro, 17 Abb. Pr. 113; Miner v. Beeckman, 50 N. Y. 337; Brinckerhoff v. Lansing, 4 Johns. Ch. 65; Perine v. Dunn, Id. 140.)</p>

<p>Appeal from judgment of the General Term of the Supreme Court in the second judicial department, entered upon an order made February 15, 1887, which affirmed a judgment in favor of defendant entered upon a decision of the court on trial at Special Term.</p> <p>The plaintiff brought this action to recover dower in certain lands situate in the city of Brooklyn, of which one David Van Cleaf, deceased, was seized while he was her husband.</p> <p>The complaint alleged that plaintiff was married to said Van Cleaf on the 6th of July, 1875, and that he died November 12, 1884; that during said period he was seized and possessed of the premises in question, and that the defendants are in possession thereof, claiming to own the same.</p> <p>"Without denying any of said allegations, the defendant Catharine Burns answered, alleging that on the 9th of April, 1881, said David Yan Cleaf, who was then a resident of the state of Illinois, was duly divorced from the plaintiff on account of her misconduct by the judgment of a court in that state, Avhich had jurisdiction of the subject-matter and of the parties.</p> <p>The trial court found the following facts: “ That in an action in the Circuit Court of Cook county, Illinois, in which David Yan Cleaf was plaintiff, and said Mary B. Yan Cleaf was defendant, brought for a divorce and dissolution of the marriage for the cause and ground that said Mary B. Yán Cleaf had Avillfully deserted and absented herself from said David Yan Cleaf, her husband, without any reasonable cause, for the space of more than two years before tire commencement of such action, which, by the laws of Illinois, was a ground for absolute divorce and dissolution of the bond of marriage, such proceedings were had that, on April 9, 1881, judgment was granted and perfected therein in favor of said David Yan Cleaf against said Mary B. Yan Cleaf, dissolving the bond of marriage betAveen them, for the cause and ground aforesaid, which cause and ground was, by said judgment, adjudged to exist.</p> <p>“ That said court, in pronouncing said judgment, had jurisdiction of the subject-matter of the action and judgment, and of the jwties thereto.</p> <p>“ That said David Yan Cleaf was, at the time of said action and judgment, domiciled in Chicago, in the state of Illinois, and said Mary B. Yan Cleaf, on October 18, 1880, appeared in said action in person, and filed her answer in writing to the complaint, having first received notice of the commencement of the suit by the service on her in this state of the summons and complaint.</p> <p>“ That the plaintiff Avas, during all the time above mentioned, a resident of the city of Brooklyn in the state of New York.”</p> <p>The court found, as a conclusion of law, that the complaint should he dismissed upon the merits, with costs, to which the plaintiff duly excepted -</p> <p>The only proof given by either party on the trial was a stipulation admitting the facts as found.</p> <p>The case states that no other facts appeared, and the parties stipulate, for the purpose of any appeal, that David Van Cleaf was seized in fee-simple of the premises in question between the date of his marriage to the plaintiff and the date of said divorce, and that such admission shall have the same effect as though found by the trial judge upon proper evidence.</p> <p>Under the statutes of this state and their construction by our courts, the dissolution of the marriage contract does not forfeit the right of dower, except as provided by statute. (Erkenbrach v. Erkenbrach, 96 N. Y. 456; Wait v. Wait, 4 id. 95, 100; In re Ensign, 34 Alb. L. J. 425.) The divorce for the misconduct of the wife which will forfeit her right to dower, is a divorce for her adultery. (1 Greenl. on Ev. 294, § 7; People v. Baker, 76 N. Y. 78-88; 3 R. S. [5th ed.] 32, 237, §§ 8-61; Beebe v. Estabrook, 79 N. Y. 246-252; 3 R. S. 32, § 9; Pitts v. Pitts, 52 N. Y. 593; Schiffer v. Pruden, 64 id. 47-49; 1 R. S. 741, § 8; 3 id. 990, § 44; In re Ensign, 103 N. Y. 284; McGaffin v. City of Cohoes, 74 id. 387, 389; In re Tilden, 98 id. 434-442.) The divorce which will work a forfeiture of dower intended by the statute, is by a judgment recovered in this state. (Sims v. Sims, 75 N. Y. 466; N. T. Co. v. Gleason, 77 id. 400-410; Van Vorhis v. Brinknall, 86 id. 18-31; Pitts v. Pitts, 52 id. 593-595.) It is not shown that by the laws of Illinois the judgment in question would bar dower in that state. (Cuyler v. Wright, 22 N. Y. 471; Thorner v. Batory, 41 Md. 593; People v. Baker, 76 N. Y. 78-88.)</p> <p>The word “miscon. duet” in section 8 of the chapter of the Revised Statutes on Estates in Dower, is used as a synonym for adultery. (Harding v. Alden, 9 Greenl. 140, 151-152; Mansfield v. McIntyre, 10 Ohio, 27-28; 4 Kent’s Comm. 53, 54.)</p>

This action was brought to recover damages for injuries alleged to have been caused by defendant’s negligence. The material facts are stated in the opinion. There was no negligence proved on the part of the defendant company. (Penal Code, § 426; Putnam v. B. & S. A. Co., 55 N. Y. 108; P. F. W. & C. R. R. Co., 42 Hun, 104; Lyle v. W. R. R. Co., 6 N. Y. Supp. 325; Felton v. C. R. R. Co., 34 Alb.

<p>1. Negligence—Overloading street cars.</p> <p>Plaintiff, a passenger on a street car, owing to the crowded condition of the rear platform, on which he was standing, after asking' the conductor to stop the car, and receiving no reply, stepped from the moving car and walked rapidly by the side of the car to the front platform, which he boarded in safety, but after riding in this position for a short distance was crowded off and fell underneath the car and was injured. The conductor and another man passed to the front platform in the same manner and at the same time as plaintiff. Held, that the question whether defendant was negligent in carrying so many passengers was for the jury to determine.</p> <p>2. Same.</p> <p>The defendant was not guilty of contributory negligence in surrendering his seat to one less able to stand than himself, and seeking a place on the platform.</p> <p>3. Same—Contributory negligence.</p> <p>In view of the evidence as to the speed of the car and the circumstances under which plaintiff attempted to board the front platform, the question of his contributory negligence was properly left a question of fact for the 3™y-</p>

<p>Appeals by Elizabeth A. L. ITyatt from two several orders of the General Term of the Superior Court in the city of Hew York made June 23, 1887, which respectively reversed separate judgments in her favor entered upon the decision of the court on trial at Special Term.</p> <p>These are cross-actions between the same parties, tried together and submitted upon the same evidence. The findings are the same in each, except as to matters purely formal. The action brought by Mr. Clark was for the specific performance of a clause in a lease between the parties, which provided for the renewal thereof upon the expiration of the first term of five years. The action brought by Mrs. Hyatt was to annul and cancel said lease upon the ground that her agent had exceeded his authority in executing and delivering it.</p> <p>On the 2d of January, 1880, Mrs. Hyatt, who was then in England, appointed her brother, Arthur Lake, her agent to manage and conduct her property and affairs in the United States; to sell and dispose of all or any part of her real or personal estate; to convey and assign the same to the purchaser or purchasers thereof; to receive and recover all sums of money due or to become due to her, and to sign, seal and execute all such agreements, conveyances, assurances, acts, deeds, matters and things as should be required. The appointment was by a written instrument, duly signed, sealed and acknowledged.</p> <p>About January 15, 1880, negotiations were begun between Mr. Clark and Mr. Lake in relation to a lease of certain premises belonging to Mrs. Hyatt, known as Ho. 25 Wavérly place, in the city of Hew York. Clark raised the question whether Lake was authorized by said power of attorney to give a lease, and wished him to cable for additional authority, but he did not do so, as he had written to Mrs. Hyatt about the offer made and his letter was about due. Pending an answer to his letter, and about January twenty-ninth, the lease in question was signed by Lake as attorney for Mrs. Hyatt, the lessor, and by Clark and one Gardner, as lessees. Lake then handed the lease to Clark, for himself and Gardner, but, as the court found, “ Clark did not accept the delivery of the lease, but postponed his decision as to accepting or not accepting until he should hear further from” Mrs. Hyatt. On the seventh of February, Mrs. Hyatt sent a cable message to Lake, in these words: “Your powers attorney cancelled. Sign no lease.” In a day or two Lake showed this message to Clark and requested him to cancel “ the matter of the lease and letting so far as the same had proceeded,” but he refused, saying that he would take any risk there might be. He thereupon filed his lease for record and took possession of the premises. Lake did not report to his sister that the lease had been “ executed in any sense conditionally, or that Clark had not accepted delivery before the receipt of the message,” but he informed her that it was signed January twenty-ninth, that it was valid and that it could not be cancelled or avoided. Mrs. Hyatt did not know that there had been any condition connected with the delivery of the lease until November 10, 1884, Avhen she heard of it through Lake. In the meantime she had accepted the rent reserved by the lease as it became due in quarterly payments, the first payment having heen made May 1, 1880. The lease provided for an annual rental of $2,000 for five years, Avith the right of renewal for a second and third term of five years each, at $2,500 per year during the former, and $3,500 per year during the latter. The lessees were to expend not less than $2,000 during the first six months in improving the premises, and they, in fact, expended more than $4,000 for that purpose.</p> <p>Before the commencement of this litigation Clark, having first acquired all of Gardner’s interest in the lease, gave due notice of Ms election to continue as tenant for another term of five years.</p> <p>Further facts appear in the opinion.</p> <p>This court will examine questions of law only, and will consider that the General Term has, at the request of Mr. Clark, fully examined his exceptions on matters of fact, and that it agreed with the trial judge as to the facts, thus concluding any further discussion of matters of fact. (Code, § 1338; R. Co. v. Roach, 97 N. Y. 378; Van Tassel v. Wood, 76 id. 614; Davis v. Leopold, 87 id. 620; Ward v. Craig, Id. 550, 557.) The power of attorney did not authorize the making of any lease. (Craighead v. Peterson, 72 N. Y. 279, 284; Geiger v. Bolles, 1 T. & C. 129; Filley v. Gilman, 2 J. & S. 339; Taylor v. Hoey, 26 id. 402; Wood v. Goodridge, 6 Cush. 117; Hubbard v. Elmer, 7 Wend. 446; Mechem on Agency, § 306; Rossiter v. Rossiter, 8 Wend. 495; Jeffrey v. Hursh, 49 Mich. 31.) There has been no ratification of the lease by Mrs. Hyatt. (Story on Agency, § 329; Price v. Keys, 1 Hun, 177; 62 N. Y. 378; Hoffman v. Tredwell, 2 T. & C. 57; Nixon v. Palmer, 8 N. Y. 398; Seymour v. Wyckoff, 10 id. 213; Stilwell v. M. L. Ins. Co., 72 id. 385; Ritch v. Smith, 82 id. 627; Benninghoff v. A. Ins. Co., 93 id. 495; Craighead v. Peterson, 72 id. 285.) The letter of Yeaman, which was offered in evidence, was clearly competent. (Merrill v. I. R. R. Co., 16 Wend. 597; Bank of Monroe v. Culver, 2 Hill, 531; Halsey v. Sinsebaugh, 15 N. Y. 485; Russell v. H. R. Co., 17 id. 134; Guy v. Mead, 22 id. 466; Cole v. Jessup, 10 id. 96; Mandeville v. Reynolds, 68 id. 538; Stephens on Ev., 237, art. 136, note.) Parol evidence is always admissible to-explain and cpialify' the delivery of a deed, or any other instrument in writing, even where it has been delivered by the grantor to the grantee. (Gilbert v. N. A. F. Ins. Co., 23 Wend. 43; Cocks v. Baker, 49 N. Y. 107; Jackson v. Perkins, 2 Wend. 308; Ford v. James, 2 Abb. Ct. App. Dec. 159; Graves v. Dudley, 20 N. Y. 77; Fonda v. Sage, 48 id. 173; Reynolds v. Robinson, 110 id. 654; Greenl. on Ev. 297; Brackett v. Barney, 28 N. Y. 333, 340, 341; Crosby v. Hillyer 24 Wend. 284; Jackson v. Richards, 15 id. 617.) There is nothing in this case upon "which to found an argmnent that there is an estoppel against Mrs. Hyatt on the ground that it was the deceit of her own agent that injured her. (People v. Bostwick, 32 N. Y. 445.)</p> <p>If Mr. Lake had no authority under the original power to-execute the lease, nevertheless Mrs. Hyatt ratified the act of' her agent in executing that instrument. (Whart. on Agency, § 225; Story on Agency, §§ 79, 80, 140; Adams v. Mills, 60 N. Y. 533, 539; Stilwell v. M. L. Ins. Co., 72 id. 385, 392; 2 Kent’s Comm. 801; Story on Agency, § 256; Griswold v. Haven, 25 N. Y. 595; N. Y., etc., R. R. Co. v. Schuler, 34 id. 30; Myers v. M. L. Ins. Co., 99 id. 1, 11; Meehan v. Forrester, 52 id. 279; Whart. on Agency, § 92; Story on Agency, § 239.) The delivery of the lease to Mr. Clark was an absolute delivery as far as Mrs. Hyatt was concerned. The right was reserved to Mr. Clark, only, to refuse to accept it. (Townson v. Tokel, 3 B. & Ald. 36.) The power of attorney given to Mr. Lake empowered him to execute the lease. (Hedges v. Riker, 5 Johns. Ch. 163; U. S. v. Gratiot, 14, Pet. 526; Craighead v. Peterson, 72 N. Y. 279, 283; Story on Agency, § 140; Adams v. Mills, 60 N. Y. 539; Myers v. M. L. Ins. Co., 32 Hun, 321; 99 N. Y. 1.)</p>

This action was brought by the plaintiff to recover damages for personal injury alleged to have been received by him through the negligence of one Gebhard, a servant of the defendant. The plaintiff was an employe of a firm of stevedores, Dick & Churchill, who had engaged with the master of the ship “ Austria ” to load it with barrels of petroleum which were in the store-house and upon the dock of the defendant at Weehawken, in the state of Hew Jersey.

<p>This action was brought to recover damages for the death of M., plaintiff's intestate, a boy six years old, who was found drowned in a hole alongside a sewer constructed by defendant through private property and that of the state with the consent of the owner. It appeared that the sewer emptied into a bay; at high tide the sewage was driven back up the sewer, causing the cavity in question; this was about fifty feet from one of defendant’s streets, along which, forming the boundary of the. adjoining premises, was an embankment faced by a wall, and on top of this a fence or railing of posts and cross-bars ; at a point where it was . supposed the intestate, went upon the premises the cross-bar was down and the wall had given away. People going to the bay had occasionally crossed there, and the ground for ten or twelve feet from the fence had the appearance of a path. It did not appear that any objection had been made by any person to the construction and maintenance of the sewer. Held, that no violation of any duty which the defendant owed to decedent had been shown, and so it was not liable; that as to him the construction of the sewer was not wrongful or its maintenance a nuisance; that defendant owed to him no duty of care to protect him while upon the premises, or to guard the hole, as it was not so close to the street as to make the latter unsafe.</p> <p>It seems the owner of the premises could not have been charged with negligence in permitting the hole to remain.</p> <p>Beck v. Carter (68 N. Y. 288), distinguished.</p>

This was an action upon an alleged guaranty. The facts are sufficiently stated in the opinion. The defendant’s promise was void under the Statute of Frauds, because the written memorandum subscribed by him does not state the terms of the agreement, nor indicate, without resort to oral testimony, any other memorandum that does. (Wood v. Midgley, 5 DeG.

The nature of the action and the facts so far as material are stated in the opinion. The defendant had not paid for the goods he had already received, and, therefore, he first broke the agreement, even if there was one, and plaintiff was. justified in refusing to deliver more.

<p>Where brokers who had sold wheat short for a customer on- a margin bought in without authority on his account, and he, on being advised thereof, repudiated the purchase and subsequently directed the brokers to purchase for him at a price specified, which they refused to do, and it appeared that wheat could have been purchased in the market for several days after the order at the price named, held, that plaintiff’s damages were the amount defendants would have been indebted to him, had they made the purchase as directed ; that for the purpose of the remedy plaintiff’s position was not affected by the unauthorized purchase ; that the breach of contract was in the refusal of defendants to purchase when and as instructed, and this fixed the measure of damages.</p> <p>The distinction between such case and one of a purchase by a broker for his customer on a margin pointed out.</p>

<p>It seems, ah action to compel the specific performance of a contract to sell land may be maintained by the vendee ; he is not confined to his remedy at law; and when the answer in such an action does not raise the question of the right of the plaintiff to bring it, and no such question is raised upon the trial, a decision of the court dismissing the complaint, on the ground that plaintiff has an adequate remedy at law, is error.</p> <p>In such an action it appeared that after the execution of the contract and before the time fixed for performance the defendant gave the plaintiff a verbal option to extend the time of performance for thirty or sixty days provided at the time fixed for performance the plaintiff would increase the purchase-price and pay an additional sum down. Plaintiff .attended at the time and place specified and gave notice that he elected to accept the sixty days option and offered to pay the money required. Defendant was not present but was represented by an agent, who was not empowered to sign an extension for sixty days, and it was ■ claimed on her behalf that in no event did the option permit an •.extension for more than thirty days. Said agent had no evidence of his authority to act for the defendant in any respect. Plaintiff declined to make the payment except to defendant or some one showing authority to receive it. Said agent thereupon tendered a deed and demanded payment of the balance of the purchase-money called for by the original ■ contract, and upon plaintiff’s failure to pay, gave notice, that the contract was at an end and that defendant would retain the purchase-money paid ■ down. Plaintiff gave notice that he was ready to pay the additional sum "called for by the verbal agreement at any time that defendant, or .any one who could justify as her agent, would call for it. Held, that plaintiff had a right to be reasonably satisfied as to the authority of any person claiming to act for defendant and also to insist upon an extension in writing before making the payment; and, it being conceded there was an agreement for an extension, if the parties honestly differed :as to the time, plaintiff was entitled to a reasonable time within Which to perform the original agreement; ¡hat as plaintiff was not in default defendant could not terminate his rights by a tender of a deed, and having taken an untenable position if she receded therefrom she was-bound to give plaintiff notice when and where to perform the. original contract, or to complete the modification thereof; and that under t-lie circumstances it was material for the trial court to determine whether the extension was for thirty or sixty days.</p> <p>The court found it was not material to determine whether the period of extension was thirty or sixty days and refused to find, as requested by plaintiff, it was for sixty days. Held, that it must be assumed the refusal to find was because the court deemed it immaterial; and that the refusal was, therefore, an error of law, even if the fact was not conclusively proved.</p> <p>Plaintiff attempted to make a tender of the amount required with interest on the sixtieth day pursuant to previous notice to the defendant, but the agent designated by her was not present at the place she had appointed. A tender was made as soon as practicable thereafter, but not until the sixty days had expired. Held, that as the fault was not that of plaintiff but of defendant, the tender should be regarded as made within the time required.</p> <p>It seems, that as defendant had repudiated her contract, and declared that all of plaintiff’s rights under it were forfeited, he was not bound to-make any tender before commencing the action.</p> <p>The verbal agreement giving plaintiff the option was made on defendants behalf by -the same agent who appeared for her at the time fixed for accepting the option. It was claimed for her, that as plaintiff recognized the agency in the former transaction he could not deny it in the latter. Held, untenable ; that plaintiff in relying upon the option ran the risk of the agent’s authority, and as it appeared that he was duly authorized, and that at the time specified for accepting the option no one authorized by defendant to give an extension for sixty days was present, defendant was in default, provided the option was for sixty days.</p> <p>Baumann v. Pinckney (14 Daly, 241), reversed.</p>

At the commencement of this action the plaintiff held a lease of property situated upon the northwest corner of Church and Bector streets in the city of Bew York. The lease bore date May 1, 1877, and was for the term of fifteen years, with a right of renewal for an additional term of ten years. Upon the property there was a brick building five stories in height, the first floor of which was used as a restaurant, and the other floors for dwellings.

The nature of the action and the facts are sufficiently stated in the opinion. The plaintiff is entitled to recover upon the express promise alleged and claimed to have been made by defendant’s president and certain trustees, to pay plaintiff what his services were worth, and for his disbursements for clerk hire and expenses, and upon quantum, meruit. (Smith v. L. I. R. R. Co., 102 N. Y. 190; Gardner v. Gardner, 19 Wkly.

This action is in the nature of ejectment to recover land under xvater of a part of Great South hay, Long Island. The plaintiff’s title rests upon txvo colonial charters granted to the inhabitants and freeholders of the town of Brookhaven.

This was an action to recover damages for injuries received by plaintiff through the collision of one of defendant’s locomotives, upon which he was working, with a freight car. The facts are sufficiently stated in the opinion. The plaintiff failed to make out a cause of action and the refusal to non-suit was error.

This was an action of interpleader. The complaint alleged in substance and the trial court found that the following facts existed, when the action was commenced : The plaintiff held in his hands the .sum of $808 then due from him upon a contract that he had entered into with one Jennie L. Graves.

Motion to dismiss appeal from judgment of the General Term of the Superior Court of the city of New York, entered upon an order made February 14, 1887, which ordered judgment for defendants, upon a verdict directed by the court.