Volume 119 — New York Reports

This action was brought to recover certain sums alleged to be due plaintiffs under a contract dated March 2, 1882, between the plaintiffs, as parties of the first part, and C. H. Andrews, as party of the second part, and 0.. It. Garrison, defendant’s testator, as party of the third part.

The complaint alleged, in substance, that Marvin, defendant’s testator, was the owner and holder of four promissory notes,. one made by Francis N. Whitcomb, the others made by D. Eawson & Go., all of… Held: he could have the benefit of ’them, and so save his own debt; that thereupon plaintiff called upon Marvin and ascertained the balance due, and upon being paid that amount Marvin transferred his claims with the col-laterals to plaintiff.

Appeal by John A. Roeblings’ Sons Company from order of the General Term of the Supreme Court in the first judicial department, made June 9, 1889, which affirmed an order of Spepial Term, denying a petition to set aside a sale under the judgment herein. This action was brought to foreclose a mortgage executed by defendant, The Bankers and Merchants’ Telegraph Company, upon its property to plaintiff as trustee.

The facts so far as material are stated in the opinion. This assessment was litigated many years ago, and a decision upon the point now raised was given adverse to the petitioner’s claim upon substantially the same evidence. The principle stare decisis should be applied. (Petition of Voorhis, 5 T. & C. 345; 62 N. Y. 637; Chase v. Chase, 95 id. 373; In re S. J. O. Asylum, 69 id. 353 ; Brennan, v. Mayor, etc., 47 How.

<p>To the extent that a surrogate is given jurisdiction in the administration of the estates of deceased persons, he acts judicially; and while his judicial acts are controlled by the limitations imposed by statute, where in a matter within his peculiar jurisdiction it is claimed that he is divested of all discretion, to justify that conclusion the language of the statute must be incapable of any other interpretation.</p> <p>The provisions of the Code of Civil Procedure (§§ 2715, 2726, 2727), authorizing a “person interested in the estate” to apply to the surrogate for an order to compel an executor to file an inventory or to account, and requiring the surrogate, in case he is satisfied that the executor is in default in filing a sufficient inventory, to make an order requiring him so to do, or in case he fails “to show good cause to the contrary ” to require him to account, and the provision (§ 2514, sub. 11) that where á person interested applies, “an allegation of his interest duly verified suffices, although his interest is disputed,” do not make it compulsory upon the surrogate to grant the petition, simply because the petitioner swears that he is interested.</p> <p>The said provisions do not deprive the surrogate of the discretion and power to pass upon the right of the petitioner to demand the relief sought, and the executor may show, in opposition to the application, that the estate has been settled, and that all the beneficiaries named in the will have received their share and released the executor from all claims; and this being shown, it is the duty of the surrogate to deny the application.</p> <p>As to the filing of an inventory, the executor is not in the eye of the law “in default” or “a delinquent,” and as to the accounting, he does not fail "to show good cause to the contrary” when it ¡appears that the estate has been accounted for and distributed among those entitled thereto; and this, although the accounting and distribution were made out of court.</p> <p>It seems, where it appears in answer to such an application, that the right of the petitioner has been satisfied and extinguished or barred by a release, and the factum of the settlement or release is put in issue by his reply, or it is questioned on the ground of fraud, the surrogate has no jurisdiction to try the issue, and should dismiss the petition, remitting the applicant to his proceeding in a court having general equity powersto try it. ■</p>

This action was brought to restrain defendant from injuring, by alleged improper use, a carriage road which Philip Herman, the plaintiffs testator, had constructed over the lands of the defendant under the grant of the right of way from the defendant to the said Herman. The grant was executed and delivered October 30, 1871.

This action was originally brought by plaintiff against the Brush Electric Light Company to recover for carbons alleged to have been delivered to it during the months of April, May and June, 1887, under a contract between the parties. By order of interpleader, defendant, who claimed the amount due as receiver of the united carbon companies, was substituted as defendant, and the money was paid into court. On March 1, 1887, plaintiff entered into a contract with Edward 0.

This was an action to foreclose a mortgage given by the defendant Elmina La Tourette to Martin C. Rockwell in 1880. In 1884 the said defendant conveyed the mortgaged premises to the defendant Edward C. Mersereau, Mersereau assuming and agreeing to pay the mortgage as part of the purchase-price.

<p>Appeal from judgment of the G-eneral Term of the Supreme ■Court in the first judicial department, entered upon an order made November 23,1888, which affirmed a judgment in favor of defendants entered upon the report of a referee.</p> <p>This was an action for an accounting.</p> <p>Asa Worthington, plaintiffs intestate, died November 25, 18Y5, leaving four daughters and a son, his only children and next of kin. The plaintiff, one of the daughters, was appointed administratrix December 19, 1884. Henry B. Worthington, the son, died December 1Y, 1880, leaving a will in which the defendants were named as executors.</p> <p>The cause of action stated in the complaint is that Asa Worthington and his son, Henry B. Worthington, were associated in business as copartners under the name of Henry B. Worthington & Oo.; that on December 31, 1860, Asa Worthington being about to retire, an account of the assets and liabilities were taken and a balance struck, on which there was found “ due and owing ” to Asa W orthington from the partnership assets $15,000, which sum Henry B. Worthington agreed to pay, and Asa Worthington agreed to accept as his share of the capital and profits in the business up to the date of the alleged settlement. The complaint further states that on December 31, 1860, there appeared upon the books of. H. B. Worthington & Oo., to the credit of Asa Worthington, the sum of $41,539.38, transferred from the account of one Anthony Worthington, against which Asa Worthington had drawn $39,119.11, leaving a balance on the books to the credit of Asa Worthington on December 31,1860, of $2,420.20, which sum Henry B. Worthington also agreed to pay; that the sums were not then paid to Asa Worthington, but were by him loaned to Henry B. Worthington, who used the same in his business. The complaint further states for a separate cause of action, that at various times between 1862 and 1816 Henry B. Worthington received from various sources to the use of Asa Worthington $4,806.04, which sum Henry B. Worthington retained and used in his business. The defendants in their answer denied all the material allegations of the complaint, and set up as a defense to each cause of action the statute of limitations.</p> <p>The action was referred, and upon the trial before the referee it appeared that prior to 1860 Asa Worthington and his son had some connection in business, and had had for many years; that on the 24tli day of June, 1861, the father wrote a letter addressed to his son, from which the following is an extract:</p> <p>“Being about to give up my agency in your affairs and retire from active business; and having at the close of the 1860 carefully adjusted the acc’ts in Ledger E, I desire in order to a right tmderstanding of them hy those who come after me to make the following explanations :</p> <p>“These acc’ts principally relate to the business you are now engaged in. They commenced in my private or individual books and have so continued to the present time. They therefore appear (so far as you are concerned) as kept by an agent who is to account to you for all receipts on your acc’t after deducting all the expenditures & advances made or paid by him, & this is the manner in which they have been yearly stated to you & your former partner Wm. H. Becker:</p> <p>“I will state these acc’ts in two ways.</p> <p>“ First—as they will appear if rendered by myself as an agent for you & Secondly—as they will stand if the books in which they are kept, be (as they now will be) considered as your own.”</p> <p>The writer then states the accounts in the two ways, and shows that, whether he should be regarded as agent or as interested in the business to the extent of one-third, he ought to have for his services §75,000. This result he reached by stating an account of all the assets and business which he and his son had carried on. Some of the assets were not converted, and accounts to a large amount were outstanding and to be collected.</p> <p>The letter then continues as follows:</p> <p>“You have agreed to allow me for my services or agency up to 31st Dec’r 1860 & thence forward while I am able or willing to assist you, the sum of $75,000, being for services &c. since the year 1845, say 15 years. This sum I have carried to my credit in the Ledger & to the debit of IT. R. W. & Co., or your profit & loss acc’t. * * *</p> <p>“ This deducted leaves a balance of $75,000, the amount you have agreed to allow me for services rendered. This sum of $75,000, is all I have asked or felt entitled to demand, and you have freely and unhesitatingly allowed it.</p> <p>“ It is now, however, involved in the assets of your business and I do not consider that it is- at present due and payable to me.</p> <p>“ Our fortunes and business have been linked together u}) to the present time without any agreement or understanding between us of our relative interests. You have been involved by my imprudence in a large outlay of cash funds, resulting in your being compelled to take real estate, heavily incumbered, for your security.</p> <p>“ These incumbrances must be removed and much time consumed before you can realize from it. It would evidently be unjust for me or my heirs to demand payment of my claim before you have had reasonable time to realize from the assets out of which it arises. To your ingenuity and perseverance is mainly due this claim I hold against you and should your assets (now more doubtful than before the existence of our Country’s difficulties) prove to be of less value or yield less than was contemplated when the accts were adjusted (31 Dec. 1860) it is but right that a due proportion of such loss or depreciation be deducted from my claim. Altho’ our minds have never met until now upon the subject of my compensation, yet I have always supposed that £ (one-third) of the net profits of the concern would be a fair share for me, and this I shall always be content with (or its equivalent) on a final winding up of the business. I preferred to base my compensation on the principle of a salary rather than this interest in order to avoid the trouble of an adjustment at the termination of my connection with you.</p> <p>“You have readily yielded to my desire in this respect, and now I think this settlement had best be adhered to. If the assets you hold should prove worthless for instance, I should have no claim upon you, and so, in proportion to their depreciation, I must bear a proportionate rate of the loss, charging me with the same until my share of the net profits, or my compensation rather, be no more than one-third of your net profits. And this adjustment, in case of my absence, I must and do confidently cheerfully leave with you. * * *</p> <p>“ The one-tliird of this (if this be my interest) is $75,187.03, so that the sum of $75,000, now passed to my credit, appears to be near enough to the right one under present appearanees, but time will determine whether these estimates are ■correct, and I must be debited or credited with the difference ■as the case may be.</p> <p>“I do not desire to split hairs with you or to have you go into nice calculations.</p> <p>“ It will be easy enough, by referring to these statements, to determine about the just amo. due me at any time the acct is settled.</p> <p>“ When I am taken away, which must now soon happen, it is my wish and desire, and I here so will and decree that whatever is left to me of worldly goods shall, after paying my just and legal debts, be divided equally between my five children, or to their heirs. * * *</p> <p>“ And I sincerely hope, and it is this belief that cheers me when I contemplate my approaching end, that my children will always continue to feel one common interest in each other’s welfare, and that no hard feelings will be entertained ■or reflections cast to chill my grave that I have not done equal justice to all and loved all with equal affection.</p> <p>“ I ain not aware at this time, of owing any one any considerable amount except Maria, so long my faithful housekeeper and your youthful protector and guide. Towards her you know my feelings and obligations. I owe for her unexampled and faithful services for a long series of years. She keeps the acct., altlio’ I have somewhere a copy of it, but it matters not, whatever she claims she is justly entitled to, and I desire it may be paid to the uttermost farthing, whatever happens and while she lives, let her want for nothing that money, care or kindness can yield. You know her and have experienced her care and kindness. I need say no more. This last request is addressed to all my dear children.”</p> <p>It further appeared that about March 10, 1876, Henry R. Worthington called his sisters to his office, and there presented and read to them portions of the letter written to him by his father, and either stated or professed to read from the letter that interest on the account had been “waived.” At the same time he presented an account endorsed, “ Statement of account of Asa Worthington, from hooks of H. B. Worthington, 1860 to 1875 inclusive.” On the credit side of the. account was an item of $75,000, under date of December 31, 1860, and fourteen other items in different years, all the credits aggregating $121,345.42.</p> <p>On the debtor side there was a charge under date of January 1, 1860, of $34,721.84, and 'charges in each year for money had by Asa Worthington from and including the year 1860 to his death, aggregating $62,127.80, and the account thus far showed a balance of credit to Asa Worthington of $24,495.78. The account also contained certain charges against his estate after his death in 1875 and 1876, amounting .to $1,089.50, and after deducting that sum from the first balance there remained a credit balance of $23,406.28. From this sum he then deducted $11,000 for rent of the house occupied by his father for eleven years, and the further sum of $6,465.13 due to Maria Fraser, the housekeeper spoken of in the letter, and there was thus left due from Henry B. Worth, inton to his father’s estate the sum of $5,941.15.</p> <p>He subsequently paid the amount due Maria Fraser, and without administration upon his father’s estate, paid to his sisters their respective shares in the final balance.</p> <p>The referee refused to allow the plaintiff any interest upon the credit items in the account, and found that Henry B. Worthington had accounted for and paid the balance due from him to his father’s estate to those entitled to the same, and he dismissed the complaint.</p> <p>Further facts are stated in the opinion.</p> <p>Plaintiff’s uncontroverted evidence showed that on December 31, 1860, there. was an agreed balance of $77,420.21 in the hands of Henry B. Worthington belonging to Asa Worthington; for this he was obliged to account. (1 Story’s Eq. Juris., § 526; Lockwood v. Thorne, 11 N. Y. 70; Ogden v. Astor, 4 Sandf. 311; Lloyd v. Carrier, 2 Lans. 364; Wiltzie v. Adamson, 1 Phil. 357; Alderson v. Clay, 1 Starkie, 405 ; Mackintosh v. Marshall, 11 M. & W. 116; 1 Greenl. on Evidence, § 198; Prickell v. Hulse, 7 A. & E. 457; Champion v. Joslyn, 44 N. Y. 653 ; Lockwood v. Thorne, 18 id. 286; Tucker v. Stevens, 2 Hun. 424; Ross v. Ross, 6 id. 80. Morrow v. Morrow, 12 id. 386; William v. Sargeant, 46 N. Y. 481.) Interest attaches as a matter of law. (McMahon v. N. Y. & E R. R. Co., 20 N. Y. 463; Little v. Banks, 85 id. 267; Winch v. Ice Co., 86 id. 618 ; Reese v. Rutherford, 90 id. 644; Van Rensselaer v. Jewett, 2 id. 135; Dana v. Fiedler, 12 N. Y. 40; Martin v. Stilliman, 53 id. 615 ; White v. Miller, 78 id. 395; Gilbert v. Van Rensselaer, 15 id. 399 ; Guggenheimer v. Geiszler, 81 id. 243; Purdy v. Phillips, 11 id. 406; Brennan v. S. L. Ins. Co., 4 Daly 296.) The claim is not barred by the statute of limitations. (Worthington v. Crounditch, 7 Q. B. 479; White v. Smith, 46 N. Y. 418; Abbott’s Tr. Brief, 67, § 7; Murray v. Coster, 5 Johns. Ch. 522; 20 Johns. 576; Angell on Limitations, §§ 244, 246;. Read v. Hurst, 7 Wend. 408; Peck v. N. Y. S. Co., 5 Bosw. 226; Dyer v. Walker, 54 Me. 18; Ramsay v. Warner, 97 Mass. 8 ; Shoemaker v. Benedict, 11 N. Y. 189 ; Wood on Limitations, 234, 235 ; Baildon v. Walton, 1 Exch. 617; Davis v. Garr, 6 N. Y. 124; Randall v. Wilkins, 4 Denio, 579 ; Benjamin v. DeGroat, 1 id. 151; Wood on Lim. 254; Sandford v. Sandford, 62 N. Y. 555.) The ruling that defendants need account for only about $6,000 was error. (Gratton v. Net Life Ins. Co., 92 N. Y. 284; Gildersleeve v. Landon, 73 id. 609; Delamater v. Pierce, 3 Dem. 315; Taller on Exs. 365, 366; 1 Chitty on Gen. Pr. 535; Schoulder on Ex. & Ad. 120 ; Carter v. Greenwood, 5 Jones Ex. 410 ; Weeks v. Jewett, 45 N. H. 540 ; Redfield on Surrogates, 439; Comyn’s Digest, 500, 501, 503; Campbell v. Tousey, 7 Cow. 64; In re Flandau, 28 Hun. 279 ; Muir v. Trustees, etc., 3 Barb. Ch. 477; Brown v. Brown, 1 Barb. 376 ; Fay v. Fay, 9 Cent. Rep. 483; Scott v. Montells, 109 N. Y 1.) Defendants by cross-examination laid the foundation for •offering in evidence certain marks in lead pencil claimed to •have been made on the account by H. R. Worthington, but did not do so. Plaintiff has a right to object to their admission had they been offered. (Rouse v. Whited, 25 N. Y. 170 ; 1 Greenl. on Ev. 263; Waldele v. R. R. Co., 95 N. Y. 274; Platner v. Platner, 77 id. 103.) It was plaintiff’s duty to-collect the estate and the question as to the creditors was not at issue and coidd not be raised by defendants. Edwards v. Hoopes, 2 Wheat. 426; Patchen v. Wilson, 4 Hill, 57 Woodin v. Bagley, 13 Wend. 153; Beecher v. Crouse, 19 id. 306.) The referee erred in refusing the request to find as a, matter of fact that there was a waiver of interest. (Somer v. Meeks, 25 Nel. 361; White v. Stillman, id. 541.)</p> <p>There is no evidence that Henry R. Worthington ever assented to or approved the “ Copy-book letter.” ’ (Phelan v. N. Y. Ins. Co., 113 N. Y. 147.) Plaintiff having pnt the account in-evidence is bound by all its contents and the oral declarations, of Henry R. made at the same time. (Randle v. Blackburn,. 5 Taunt. 245; Biglow v. Sanders, 22 Barb. 147; Dewey v. Hotchkiss, 30 N. Y. 497; Smith v. Jones, 15 Johns. 229; Rouse v. Whited, 25 N. Y. 170; Platner v. Platner, 78 id. 103 ; Grattan v. Metropolitan, 92 id. 284; Wotherspoon v. Metropolitan, 17 J. & S. 152; 3 How. Pr. 152; Pendleton v. Weed, 17 N. Y. 72; Low v. Payne, 4 id. 247, 248 ; Warrington v. Early, 2 El. & Bl. 764; Dewey v. Reed, 40 Barb. 16.) Where a party wishes to avail of an admission or averment contained in a pleading, he must accept the admission or averment as an entirety; he cannot accept a portion and reject the remainder. (Starkie on Ev. 444; Greenl. on Ev., § 202; Gildersleeve v. De La Vergne, 10 Hun, 537; Albro v. Figuera,. 60 N. Y. 630; Gildersleeve v. London, 73 id. 609 ; Mott v. C. I. Co., Id. 543, 550; Gildersleere v. Mahoney, 5 Duer,. 383; Bowen v. Powell, 1 Lans. 1; Green v. Givan, 33 N. Y. 343, 367; Strong v. Dwight, 11 Abb. [N. S.] 319; Fash v. T. A. R. R. Co., 1 Daly, 148.) Interest runs only where the-amount of a claim is ascertained and liquidated. There must: be an express agreement to pay interest or an implied agreement from custom or the special circumstances of the case. None of these grounds exist here. (Reed v. R. G. Factory, 3 Cow. 387; Parsall v. Fry, 19 Hun, 595 ; Smith v. Viele, 60 N. Y. 106, 111; Crosby v. Mason, 32 Conn. 482; Floyd v. Carrier, 2 Lans. 364; Beach v. Colles, 85 N. Y. 511.) This action is not for deceit or fraud, or any tort whatever. It is founded on an alleged express contract made in December, 1860, and the proof fails to show any such contract. There is nothing on which to found a claim for any wrongful act. (Carr v. Thompson, 87 N. Y. 160.) That heirs at law and next of lcin are competent to make an agreement for distribution, if creditors do not object, and that when executed such an agreement will not be disturbed, is abundantly supported by authority. (Walworth v. Abel, 52 Penn. St. 370; Weaver v. Roth, 105 id. 408; Babbitt v. Bowen, 32 Vt. 437 ; Josey v. Rogers, 13 Ga. 478 ; 3 Redf. on Wills, [3d ed.] 89; Moore v. Gordon, 24 Ia. 158; Nickersons. Bowley, 8 Metc. 424; Danners s. Dewes, 3 P. Wins. 40 n.; Hayward v. Hayward, 20 Pick. 517; Kingsbury v. Scovill, 26 Conn. 349; Foster v. Fifield, 20 Pick. 67; Adams v. Adams, 10 Metc. 170; Fretwell v. McLemore, 52 Ala. 124; Byrd v. Byrd, 44 Ga. 258 ; Ricks v. Hilliard, 45 Miss. 359 ; Vroom v. Van Horne, 10 Paige, 549; Priest v. Watkins, 2 Hill, 225; In re Faulkner, 7 id. 182; Ingram v. Young, 3 T. & C. 491; Allen v. Eighmie, 9 Hun, 201; Smith v. Robinson, 30 id. 602; Thomas v. N. Y. L. Ins. Co., 18 J. & S. 225.) There is no statute forbidding Worthington reserving his one-fifth. (2 R. S. [6th ed.] 81, § 60 ; Id. 4449, § 17; 3 id. 88, 733.)</p>

This was a proceeding for the judicial settlement of the accounts of George W. Chauncey, as trustee under the last will and testament of Mary L. Iiirby, deceased. The material facts are set forth in the opinion. The clear, literal construction of the will gave Delaney a fixed and certain legacy. (Stewart v. Chambers, 2 Sandf. Ch. 382; Cochrane v. Walker, 4 Dem. 164; Booth v. Coulton, L. R. [5 Ch. App.] 684; Pitt v. Lord Dacre, L. R. [3 Ch. Div.] 295.

<p>Appeal from judgment of the General Term of the Superior Court of the city of Yew York, entered upon an order made May Y, 1889, which overruled exceptions taken on the trial and ordered judgment for defendant on the verdict.</p> <p>This action was brought by plaintiff, as assignee of the contractor, to recover a balance alleged to be due upon a contract made by defendant as party of the first part with Yicholas Haughton as party of the second part, for regulating, etc., One Hundred and Twelfth street from Madison avenue to Sixth avenue in the city of Yew York. Also, as a second cause of action, to recover damages sustained by reason of delay in the work alleged to have been caused by the delay of defendant in removing obstructions upon the street which prevented the prosecution of the work. The contract contained this clause:</p> <p>“ Said party of the second part hereby further agrees that he will commence the aforesaid work on such day and at such place or places as said commissioner may designate, and progress therewith so as to complete the same in accordance with this agreement, on or before the expiration of three hundred and twenty days thereafter; that the said number of days shall not he construed to mean consecutive days, but the aggregate time of all the inspectors who may be employed on the work; and that in the computation of said time the total time aggregated in days or parts of days during which the work of completing the contract is delayed in consequence of any act or omission of the parties of the first part (all of which shall be determined by the said commissioner of public works, who shall certify to the same in writing), and also Sundays and holidays on which no work is done, and days on which the prosecution of the whole work is suspended by the said com. missioner, shall be excluded. "x" * * And the said party of the second part hereby agrees that the said parties of the first part shall, and they are hereby authorized to deduct and retain out of the moneys which may be due or become due to the said party of the second part under this agreement as damages for the non-completion of the work aforesaid within the time hereinbefore stipulated for its completion, the sum which shall accrue and become due for the inspectors’ wages for each and every day the aggregate time of all the inspectors employed upon said work may exceed the said stipulated time for its completion.”</p> <p>The defendants alleged and proved that the work was not completed within the three hundred and twenty days, but exceeded that time three hundred and seventy-five days, and in making the final payment the amotint of the inspectors’ fees for the extra time was deducted. Upon completion of the work and receipt of the final payment plaintiff executed to the city an instrument by which he released and discharged the city in the following terms: “ Of and from all and all manner of action and actions, cause and causes of action, suits, debts, dues, sums of money, accounts, reckonings, bonds, bills, specialties, covenants, contracts, controversies, agreements, promises, variances, trespasses, damages, judgments, extents, executions, claims and demands whatsoever, in law or in equity, which against them I ever had, now have or which my heirs, executors, administrators or assigns hereafter can, shall1 or may have, for, upon or by reason of a certain contract or agreement made the 25th day of June, 1881, by and between John Phelan and M. Haughton and the said mayor, aldermen and commonalty of the city of Mew York, for regulating, etc., One Hundred and Twelfth street, from Madison avenue to Sixth avenue, or by reason of any matter, cause or thing whatsoever resulting or arising therefrom, from the beginning of the world to the day of the date of these presents,” excepting, however, any legal claim which the plaintiff may have to the amounts deducted and withheld for excess of inspection.</p> <p>. The plaintiff is entitled to the balance of the contractqnice. Jones v. Judd, 4 N. Y. 412; McConihe v. N. Y. & E. R. R. Co., 20 id. 495; Moses v. Bierling, 31 id. 462; Doyle v. Halpin, 1 J. & S. 352; Allaman v. Mayor, etc., 43 Barb. 33; Mansfield v. N. Y. C. & H. R. R. R. Co., 102 N. Y. 205 ; Cross v. Baird, 26 id. 88 ; U. S. v. Muller, 113 U. S. 153; Weeks v. Little, 11 Abb. [N. C.] 411.) The contract does not make the decision of the commissioner final and conclusive or binding upon the parties to this action. (Bigler v. Mayor, etc., 9 Hun, 253; Doyle v. Halpin, 1 J. & S. 352.) The learned judge erred in directing a verdict for defendants upon the ground that, as plaintiff began the work immediately upon notification from defendants so to do, as required by the contract, such beginning was a waiver of any defense that the street was incumbered, and that he thereby absolved the defendants from any duty they theretofore owed him, under the contract or in law, of removing from the premises any and all obstructions and impediments to the continuance and completion of the work so begun. (Mansfield v. N. Y. C. & H. R. R. R. Co., 102 N. Y. 205; Starbird v. Barrows, 38 id. 231; Taylor v. Mayor, etc., 83 id. 625 ; Ruff v. Rinaldo, 55 id. 664; Allamon v. Mayor, etc., 43 Barb. 38.) The learned judge erred in refusing to submit to the jury the question as to whether or not the delay in the performance of the work was caused by the acts, Comissions or neglect of defendant, (Gallagher v. Nichols, 60 N. Y. 438; Moses v. Bierling, 31 id. 462; Underwood v. F. J. S. Ins. Co., 57 id. 500; Young v. Hunter, 6 id. 204.) It was error to dismiss the complaint as to the “ Second ” cause of action upon the ground that the plaintiff had released it. That release did not affect a claim of this kind. (Allamon v. Mayor, etc., 43 Barb. 39; Miller v. Coates, 66 N. Y. 610 ; Ryan v. Ward, 48 id. 204; Redfield H. P. Co., 56 id. 354; Board v. Guillard, 60 id. 614.)</p> <p>The fact that the shanty and the Polo Ground fence encumbered the street, furnishes no ground of action to the plaintiff, and does not excuse the delay, or entitle the plaintiff to recover for the amount charged against him for inspectors’ wages. (B. N. Bank v. Mayor, etc., 63 N. Y. 237; Smith v. Brady, 17 id. 176; Butler v. Tucker, 24 Wend. 447; U. S. v. Robinson, 9 Pet. 319; Nolan v. Whitney, 88 N. Y. 648.)</p>

This action was brought for the purpose of having certain taxes which were imposed upon real estate in the city of New York in and for the year 1882, adjudged void and cancelled and to restrain the collection thereof.

This action was brought to have defendant permanently enjoined from, carrying into execution a threat to forfeit certain leases held by plaintiff, as assignee, of a ferry between NeW York city and Staten Island, and deprive it of the possession of the ferry franchise and the leased premises.

<p>Appeal from judgment of the General Term of the Supreme Court, in the fifth judicial department, which modified and affirmed as modified a judgment in favor of plaintiff against the defendants, Hart, Ellwanger and Atkinson, entered upon a decision of the court on trial at Special Term.</p> <p>This action was brought by plaintiff, as receiver of the Evening Express Printing Company, against said defendants and defendant Miller, to have adjudged void and to set aside judgments obtained by said defendants against the insolvent corporation, and to compel the defendants to refund the proceeds of the sale of its property under execution. The action was based on the ground that said judgments were obtained in violation of the Revised Statutes (1R. S. 603, § 4.) On the first trial of the action the judgments and executions and sale were adjuged void, and separate judgments were rendered against the defendants, except Atkinson as to whom the complaint was dismissed. The other defendants except Miller appealed, and the judgments against the appellant were reversed. On the second trial a joint judgment was rendered against the defendants, for the whole amount claimed. This was modified by the General Term as to the form of execution.</p> <p>The further material facts are stated in the opinion.</p> <p>The plaintiff is estopped by the record from maintaining this action against Hart. (2 Bliss’ Code, 550, § 2429; Tuska v. O’Brien, 68 N. Y. 446 ; Ibbotson v. Sherman, 10 J. & S. 477.) There is an estoppel in pais against the plaintiff. (Hawley v. Griswold, 42 Barb. 18; Walrath v. Redfield, 18 N. Y. 457, 461; Tilton v. Nelson, 27 Barb. 595; Voorhees v. Olmstead, 66 N. Y. 113; Blair v. Wait, 69 id. 113; Dezell v. Odell, 3 Hill, 215 ; S. II. Co. v. E. II. Co., 90 N. Y. 607.) The plaintiff’s right of action was lost by the repeal of the statute. (Victor Co. v. Beecher, 97 N. Y. 651.) The evidence does not show an illegal transfer contrary to the provisions of the statute. (Van Alstyne v. Cook, 25 N. Y. 489; Dutcher v. I. & T. Bank, 59 id. 5; Paulding v. C. S. Co. 94 id. 334, 339; Prentiss v. Nichols, 100 id. 227, 230; Hunt v. Mortimer, 10 B. & C. 44; Kingsley v. F. N. Bank, 31 Hun, 329.; In re Waterbury, 8 Paige, 380, 383-384; Chamberlain v. R. P. Co. 7 Hun, 557.) The evidence of Upton’s conversation with Ellwanger and Pew and Tracy was improperly received against Hart. (Gutches v. Gutches, 66 Barb. 483; Bowen v, Bank of Newport, 11 Hun, 226, 229.)</p> <p>The judgments werfe void. (Manning v. Brick, 26 N. Y. S. R. 483; 129 U. S. 329.) If any one of the judgments was void the sale was wrongful and void. (People v. Hagadorn, 104 N. Y. 519.) There was no estoppel. (Code Civ. Pro. §§ 1788, 2429 ; R. S. chap. 8, art. 3, §§ 66—89 ; Att'y-Gen’l v. L. & F. Ins. Co., 4 Paige, 224, 225 ; 2 R. S. 464, § 42; Tuska v. O'Brien, 68 N. Y. 446; Pray v. Hegeman, 98 id. 351; 3 R. S., 2399, § 68; Royce v. Watrous, 73 N. Y. 597.) The facts of thé case show that these parties were not bona fide purchasers of the property. If they were not, the receiver is entitled to recover from them for its value, defendants having disposed of it. (R. S. chap 18, tit. 4, § 4; Story’s Eq. Juris. § 1252; Morawetz on Corp. § 863; Kingsley v. F. N. Bank, 31 Hun, 329 ; Code Civ. Pro. §§ 1785, 1786.) The sale and conversion of the property of the corporation on the 19th of April, 1882, was in violation of the order of the court, and the appropriation of property, the title to which was in the receiver, and so was void. (Walling v. Miller, 108 N. Y. 173.) There was no error in the admission or rejection of evidence for which the judgment should be disturbed. (People v. Gonzalez, 35 N. Y. 49, 60; Messner v. People, 45 id. 1, 10; Forrest v. Forrest, 25 id. 501, 510; Code of Pro. § 2545 ; In re Smith, 95 N. Y. 516, 527.)</p>

The nature of the action and the facts are sufficiently stated. . in the opinion. Where performance of a contract for personal services is rendered impossible by the death of one of the parties, no recovery can be had for services not already rendered. (Farrow v. Wilson, L. R. [4 C. P.] 744; People v. G. M. L. Ins. Co., 91 N. Y. 174; Babcock v. Goodrich, 3 How.

Motion to dismiss appeal from order of the General Term of the Supreme Court in the first judicial department made Rovember 23, 1883, which reversed a judgment in favor of plaintiff entered upon a verdict. The facts so far as material are stated in the opinion. That the negotiable bonds in suit, regular on their face, were regularly issued, is presumed as a matter of law.

Charges for services and expenses in conveying criminals to jail are county charges. (People ex rel. v. Super., 18 Hun, 19; R. S., chap. 12, p. 978, § 3.) The provision of the Revised Statutes cited has not been repealed either expressly or by implication.

<p>Plaintiff in 1836 joined with her husband in a mortgage upon his land. In 1838 they were both made parties to a suit for the foreclosure of the mortgage. No copy of the writ of subpoena was served upon her; one was served upon the husband, and one delivered to him with the request to hand it to her; she was at the time under age. A judgment of foreclosure and sale was entered, under which the premises were sold. The husband died in 1882. In an action to recover dower, held, that under the rule and practice in chancery proceedings in force at the time of the foreclosure, personal service of the writ upon plaintiff was not necessary, but service on the husband was a good service on both, and this was so although she was at the time under age; and that, therefore, the action was not maintainable.</p>

Cboss Appeals from order of the General Term of the Supreme Court in the first judicial department, made July 9, 1889, which reversed an order of Special Term adjudging an assessment upon certain personal property to be void, and reduced the same, and ratified and confirmed the proceedings of the commissioners of taxes and assessment. The relators brought a certiorari under chapter 269 of the Laws of 1880, to review an assessment upon personal estate.

The facts, so far as material, are stated in the opinion. It is a forced construction of the word “acquire” to limit it to acquisition by gift or voluntary purchase. (Laws of 1850, §-13.) The section of the Constitution relied on as the chief point in opposition to this application has been amply construed by the Court of Appeals and the Supreme Court, and in such a way as to deprive the objection made in the present case of all its force.

<p>Negligence—Street railroads—Negligence of parent.</p> <p>Plaintiff, a child two years old, was left in charge of her father in his hakery. AYhile she was behind the counter he proceeded to make sonic entries in his books, when she went out of the door and was run over by a street car. The horse attached to the car was driven on a gallop and the driver’s attention was diverted in another direction. All this happened within ten or fifteen minutes after plaintiff’s mother left her with her father. Plaintiff was nonsuited in the ground of her parents’ negligence. Field, error; that the father was only required to exercise such a degree of care as was reasonable in his situation and under all the circumstances, and whether he did so was a question for the jury.</p>

<p>1. Appeal. Dismissal.—The respondent, in moving to dismiss an appeal on the ground that the time for appealing has expired before the notice of appeal was served, stands upon a strict right, and must show a strict and technical compliance with the statute on his part, to entitle him to. this relief.</p> <p>2, Same.—The service of a copy of a judgment, which lacks the attestation of the clerk, does not initiate the running of the limitation of the time to appeal.</p> <p>3. Same.—The refusal by the court of appeals to stay the plaintiff’s motion to dismiss until the defendants could remedy the defect in their proceedings, did not preclude the latter from making such further application to the court below for the requisite certificate.</p> <p>4. Judgment. Attestation.—The omission of the clerk to sign a judgment otherwise properly entered, will not, it seems, deprive a party of rights under a judgment. The judgment would be irregular, but not void, and the defect would be amendable in furtherance of justice.</p>

<p>Appeal from a judgment of the general term of the city court of Brooklyn overruling demurrer to complaint.</p>

<p>Where the affidavit, upon which an attachment was issued, stated that a cause of action existed in favor of plaintiff against defendant for an amount stated and then set forth the grounds of the claim, to wit, an indebtedness for goods sold to the amount specified, and also stated that no part had been paid but the whole was due and owing, held, that this was a sufficient compliance with the provision of the Code of Civil Procedure (§ 636) requiring a plaintiff, on application for an attachment, to show by affidavit that he “is entitled to recover a sum stated therein.”</p> <p>An attachment was applied for and granted, on the ground that the defendant had. departed from the state with intent to defraud his creditors, which was alleged by plaintiff in his affidavit, on information and belief; he stated that the sources of his information and the grounds of his belief were the affidavits of two persons named, which he averred had that day been presented to the judge to whom the application was made and by him ordered filed. Copies of said affidavits were attached ; these contained statements of facts sufficient to show the departure with the intent alleged. Reid, that the affidavit was sufficient to give jurisdiction to issue the attachment.</p>

The nature of the action, and the material facts are stated in the opinion. In an action to recover money the jury must assess the amount of the damages. (Code Civ. Pro. § 1183.) If the jury fails to assess the amount of damages, there is no verdict.

The relators and the defendants were the members of the board of inspectors of election appointed for the ninth ward of the city of Troy. The defendants refused to affix their signatures to the election returns made for said election district, at the annual election held November 5, 1889, and these proceedings were instituted by the relators to compel them to perform that act.

The nature of the action and the facts are sufficiently stated in the opinion. There was no negligence shown on the part of the defendants.

This action was brought by the plaintiff, a bank in the state of Iowa, to recover against the defendant, a bank in Hew York city, on the ground of the non-payment of certain drafts or hills of exchange, which plaintiff had drawn upon the defendant in favor and to the order of Wadsworth & Co. The complaint alleges, in ten counts, the making and delivery of the drafts, their indorsement by the payees, a presentation and demand for payment, the defendant’s refusal and the…

The nature of the action and the facts are sufficiently stated in the opinion. The act in question is a private and local bill.

Cboss appeals from judgment of the General Term of the Supreme Court in the fourth judicial department, in favor of plaintiff, entered upon an order made ¡November 13, 1888, which directed a judgment upon a case submitted under the Code of Civil Procedure. The facts set forth in the case, so far as material, are stated in the opinion. The provisions of chapter 907 of the Laws of 1869, as amended by chapter 283 of the Laws of 1871, are valid.

■ 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. The motion to dismiss the complaint, because there was no evidence of negligence on the part of the defendant, should have been granted.

<p>The state, legislature has power to declare places or property used to the detriment of public interests or the injury of the health, morals or welfare of the community, public nuisances, although not such at common law.</p> <p>It seems, however, this power may hot be used as a cover for withdrawing property from the protection of the law, or, arbitrarily, where no public right or interest is involved in declaring property a nuisance for the purpose of devoting it to destruction, and if the court can judicially see that the statute is a mere evasion or was framed for the purpose of individual oppression, it may be set aside as unconstitutional.</p> <p>The legislature lias power to regulate and control the right of fishing in the public ’waters of the state, and in the exercise of this power may prohibit the taking of fish with nets in specified waters, and by its declaration, make the setting of nets for that purpose a public nuisance.</p> <p>Where a public nuisance consists in the location or use of tangible personal property, so as to interfere with or obstruct a public right or regulation, the legislature may authorize its summary abatement by executive agencies without resorting to judicial proceedings; and any injury to or destruction of the property necessarily incident to the exercise of the summary jurisdiction, interferes with no legal right of the owner, and is not violative of the constitutional prohibition against depriving the owner of his property without due process of law.</p> <p>The legislature, however, may not decree the destruction or forfeiture of property used so as to constitute a nuisance, and appoint officers to execute its mandate as a punishment of the wrong or even to prevent a future illegal use of tne property, it not being a nuisance per se.</p> <p>It seems a public nuisance may only he abated by an individual where it obstructs his private rights, or interferes at the time with his enjoyment of a right common to many, and he thereby sustains a special injury.</p> <p>Where provisions of a statute are separate and one is unconstitutional, while the others are valid, the latter will he sustained and the former only rejected.</p> <p>Accordingly, held, that the provision of the act of 1888 (§ 2, Laws of 1883, chap. 317),' declaring “any net found * * * * in or upon any of the waters of this state, or upon the shores or islands in any waters in this state, in violation of any existing or hereafter enacted statutes or laws for the protection of fish,” to be a nuisance, authorizing its summary abatement and destruction by any person, and making it the duty of every fish protector and constable “to seize and remove and forthwith destroy the same,” so far as it authorizes the destruction, by a fish protector or constable, of nets found in actual use in the waters of the state, was constitutional; and that its constitutionality was not affected by the authorization also given to private individuals and officers to destroy nets on land.</p> <p>Black River hay is part of Lake Ontario, within the meaning of the act of 1886 (Chap. 141, Laws of 1886), prohibiting the killing or taking of fish by nets in certain portions of said lake.</p>

This action was brought to recover damages for the death of Thomas P. Danaher, plaintiff’s intestate, alleged to have been caused by drinking from a public well belonging to the defendant, the water from which was poisonous and unwholesome. The deceased died August 24, 1882, from typhoid dysentery. The material facts are stated in the opinion. The trial court erred in directing a nonsuit.

This was an action upon two promissory notes payable to the defendant, which were indorsed by one Walter E. Lawton, as its president, to the firm of Lawton Brothers, who before their maturity transferred them to plaintiff. The material facts are stated in the opinion.

This action was brought to recover for the alleged conversion of certain United States bonds. The facts so far as material are sufficiently stated in the opinion. The cashier of a bank has no power to bind the bank by a contract to receive securities on deposit unless he is authorized so to do by the direction of the managers of the bank, or unless such authority may be implied from the ordinary course of business of said bank.

<p>In an action upon a policy of insurance on the life of W., non-payment of premium, due October 25, 1884, was pleaded as a defense. The policy contained a clause declaring that the agents of the company “have no power to, waive or postpone payment of premium, or to accept payment after it becomes due.” It appeared that on July 1, 1884, W. wrote to defendant as to how large a paid-up policy it would give him. Defendant answered stating the then present value of the policy, and what it would he in October, adding that <3-., its general agent, “will give you further information, or you can write here.” The day the premium became due a son of W. called on G-. and told him his father had concluded to take a paid-up policy, and then, supposing that a payment of the premium was a necessary step, offered to G. the amount in cash. G. said that payment of the premium was not necessary to entitle W. to a paid-up policy, but advised the continuance of the existing policy, and suggested the witness should talk the matter over with his father and let him decide, adding that he could come in and pay the premium at any time within a week or ten days. On November 3d, G., describing himself as “manager ” and his office as a “ branch office," acknowledged the receipt of the policy in question “to be replaced by paid-up policy in such amount as has been agreed upon,” and added: “Time extended thirty days in which to reach a decision with regard to taking paid-up policy.” It also appeared that G. had many times accepted premiums from the assured, after their maturity, under circumstances which fairly charged defendant with knowledge of the fact, and made then- acceptance of the money a ratification of waiver by the agent. W. died November 8th, and two days later his son paid to G. the premium, receiving a receipt therefor. The trial court directed a verdict for defendant. Held, error; that the assured was authorized in assuming that G. had authority to continue and carry out the negotiation for an exchange of policies as broad and effective as that of the home office, and had special authority so far as this policy was concerned to waive prompt payment; that the default was occasioned by the acts of such agent; and that it could not be said as matter of law that there was no waiver.</p>

In the year 1870 the town of Salina, under chapter 570 of the Lavrs of 1868, issued its bonds to the amount of $120,000, payable twenty years thereafter, with interest at seven per cent, payable on the first days of August and February of each year.

This action was brought for the purpose of recovering the possession of certain personal property described in the complaint as ready-made clothing, “ and being four overcoats, 223 coats, 224 vests, 243 pairs of pants, 36 boys’ suits, one pair boys’ pants.” It was alleged in the complaint that the plaintiffs sold the above property and delivered the same to one Buslander, but that he had procured them through false and fraudulent representations, and that, by reason of such…

judgment of the General Term of the Supreme Court in the second judicial department, entered upon an order made June 28,1889, which affirmed a judgment in favor of defendants, entered upon a decision of the court on trial at Special Term. This action was brought to recover damages for the erection of a wharf and bridge upon plaintiffs’ property, and to compel their removal.

This was an action for the foreclosure of a mortgage. The facts are sufficiently stated in the opinion.

This action was brought to recover damages for the conversion of a quantity of lumber which had been transferred to plaintiffs by the firm of George & Edward ITarnden, in payment of a debt of which defendant claimed to be the owner. The material facts are sufficiently stated in the opinion.

This action was brought to recover the sum of $9,626.84, claimed to have been retained by defendant, wrongfully and unlawfully, while in the discharge of the duties of the office of treasurer of the county of Erie, during the years 1882 and 1883. The facts are sufficiently stated in the opinion. The county treasurer of Erie county was entitled by law to receive and retain for his own use several classes of fees and commissions mentioned in the plaintiff’s complaint.

The nature of the action and the facts are sufficiently stated in the opinion. The plaintiff’s property was destroyed in consequence of a mob or riot, within chapter 428, Laws of 1855, providing for compensating, by the city or county where the injury occurred, the parties whose property may be destroyed in consequence of mobs or riots. (People v. White, 55 Barb. 606; 2 Arch. C. L. & P1. 934; Barb. Or. Law, 210; Roscoe’s Grim.

<p>Appeal from judgment of the Gteneral Term of the Supreme Court in the third judicial department, entered upon an order made May 1Y, 1888, which affirmed a judgment in favor of plaintiffs, entered upon a verdict.</p> <p>The nature of the action and the facts are sufficiently stated in the opinion.</p> <p>There was no breach of the contract on defendant’s part; but, on the contrary, it was plaintiffs who were guilty of a breach, by reason whereof a. nonsuit should have been granted. (Viel v. T. & B. R. R. Co., 21 Barb. 381; 20 N. Y. 184; King v. Wilson, 6 Beav. 124; Barney v. Loper, 16 Barb. 629 ; Titus v. G. F. Ins. Co., 81 N. Y. 419 ; Battell v. Matat, 2 N. E. Rep. 491; McKnight v. Dunlop, 5 N. Y. 537; Goodsell v. W. U. T. Co., 13 N. Y. S. R. 278 ; Rodermund v. Clark, 46 N. Y. 354; Lawson v. Hogan, 93 id. 39 ; 13 Wkly. Dig. 8; Davison v. Jersey Associates, 71 N. Y. 333; Newton v. Wales, 3 Robt. 453; Parr v. Greenbush, 112 N. Y. 246 ; Reynolds v. Nelson, 6 Mad. 18; Cythe v. La Fontain, 51 Barb. 186 ; Roth v. B. & S. L. R. R. Co., 34 N. Y. 553; Davis v. Gwynne, 57 id. 677; Hedges v. H. R. R. R. Co., 49 id. 223; Bryden v. Bryden, 11 Johns. 206.) FTo injustice is done by the application of these well settled principles; on the contrary the recovery is inequitable. (Smoot's Case, 15 Wall. 36; Allanmon v. Mayer, 43 Barb. 33; Barker v. Rose, 5 Hill, 76; 2 Chitty on Cont. 1091; Sedgwick on Dam. 257; Fay v. Oliver, 20 Vt. 118; Smith v. Brady, 17 N. Y. 173.) The learned trial court erred in permitting an improper element in the case, which must have misled the jury. (Graves v. Hunt, 26 Wkly. Dig. 567.) There is a misjoinder of parties plaintiff. (Coe v. Hobby, 72 N. Y. 141; Mitchell v. Hawley, 4 Den. 412; Kuhn v. Stevens, 36 How. Pr. 275 ; Code Civ. Pro. § 448; P. Bank v. Donnell, 40 N. Y. 410; Harris v. Hollister, 64 id. 1; Burgess v. Abbott, 6 Hill, 135; Strong v. Wheaton, 38 Barb, 616; Brainard v. Jones, 11 How. Pr. 569 ; Scofield v. Van Seykle, 23 id. 97; Merritt v. Walsh, 32 N. Y. 685; De Puy v. Strong, 37 id. 372; Sanders v. City of Yonkers, 63 id. 489.)</p> <p>At the expiration of the period of suspension agreed to for the accommodation of the-■defendant, the plaintiffs had the right to resume operations; and any prevention, hinderance or refusal on the part of the defendant constituted in law a total breach of the contract. (2 Addison on Cont. § 871; Du Bois v. D. & H. C. Co., 4 Wend. 285; Taylor v. Bradley, 39 N. Y. 129, 144; Howard v. Daly, 61 id. 362, 370; Canda v. Wick, 100 id. 127; McKnight v. Dunlop, 5 id. 537, 544; Barber v. Rose, 5 Hill, 76; 2 Parsons on Cont. 662; Kipp v. Wiles, 3 Sandf. 585, 588; Glacius v. Black, 50 N. Y. 145, 149; Levy v. Burgess, 64 id. 390.) The court erred in charging that if the plaintiffs were given, within a reasonable time and before they had engaged in other work, an opportunity to go on with the work that they would be bound to finish it. (Moody v. Osgood, 54 N. Y. 488, 495; Morehouse v. Yeager, 71 id. 594; Rexter v. Starin, 73 id. 601.) There was no error in the court’s declining to charge the proposition that the plaintiffs had a right to go on with the work and hold the defendant for damages sustained by the delay. (Moody v. Osgood, 54 R. Y. 488.) The defect of the parties plaintiff, if any, appearing on the face of the complaint, the defendant should have demurred;. and, it not having done so, this objection is waived. (Code Civ. Pro. §§ 488, 498, 499; Zabriskie v. Smith, 13 N. Y. 322, 336, 337; Merritt v. Walsh, 32 id. 685, 689, 690; Depuy v. Strong, 37 id. 372; Eaton v. Balcom, 33 How. Pr. 80; Sanders v. Yonkers, 63 N. Y. 489,493; Green v. Lippincott, 53 How. Pr. 33; Patchin v. Peck, 38 N. Y. 39.) Reither Bradley nor Enright was a necessary party plaintiff. (1 Bindley on Part. §§ 55, 436-7, 444,449; 1 Bates on Part. § 329 ; 2 id. § 1025 ; Thrall v. Seward, 37 Vt. 573; Maynard v. Briggs, 26 id. 94; Anderson v. Holmes, 14 S. C. 162 ; Bishop on Cont., §§ 130, 133, 136, 137, 795, 796; Lattimore v. Harson, 14 Jolms. 330; Dearborn v. Cross, 7 Cow. 48; Delacroix v. Bulkley, 13 Wend. 71, 75; Jewell v. Schroeppel, 4 Cow. 564; 2 Parsons on Cont. 721; Briggs v. IGi/rtridge, 64 R. Y. 357, 364; Du Bois v. D. <& II. G. Go., 4 Wend. 285; Lawrence v. Taylor, 5 Hill, 107, 113.) The .rule of damages as laid down by the court was not excepted to by defendant, and was correct. (Masterson v. Mayor, etc. 7 Hill, 61, 69; Devlin v. Mayor, etc. 63 N. Y. 8, 25; Donalds v. State 89 id. 36; Bagley v. Smith, 10 id. 489, 500.)</p>

The nature of the action and the material facts are stated in the opinion. There was no question of fact to be submitted to the jury. (Kelly v. Burroughs, 102 N. Y. 93, 95, 96; 51 Hun, 537; 1 Daniel on Neg. Inst. § 803 ; Com. v. Clark, 94 N. S. 278; Cromwell v. County of Sac, 96 id. 351; Griffith v. Griffith, 9 Paige; 315 ; Varick v. Briggs, 6 id. 323.) The plaintiff was entitled to a verdict upon the facts and the trial court properly so held.

<p>Appeal from order of the General Term of the Supreme Court in the first judicial department, made May 19, 1888, which reversed a judgment in favor of plaintiff, entered upon the report of a referee, and ordered a new trial.</p> <p>One William Miller purchased twelve bonds for $1,000 each, made by the Sea Cliff, etc., Association, and secured by a second mortgage upon its real estate, and also, by a chattel mortgage. He was influenced in their purchase by the defendant, who was interested in the corporate projects, and who gave, at the time of the purchase, this written guaranty :</p> <p>“ Hew York, November 21, 1816.</p> <p>“ In consideration of the sum of one dollar, to me in hand paid by Dr.Wm. Miller, the receipt whereof is hereby acknowledged, I hereby guarantee to him the payment of three certain bonds numbered 16, 17 and 18, being three of a series of mortgage bonds made by the Sea Cliff Grove and Metropolitan Camp Ground Association of one thousand dollars each, dated the first day of October, 1876, payable five years from date, with interest at seven per cent., payable semiannually on the first days of April and October, at the National Shoe and Leather Bank.</p> <p>“ This guarantee to include principal and interest..</p> <p>“ Witness my hand this 4tlr day December, 1876.</p> <p>“EGBERT RINEHART.”</p> <p>Miller subsequently died, and the bonds came into the possession of Dorothy B. Miller. While so held, an effort was made to effect an adjustment between the company and the second mortgage bondholders. The matter was in the hands of a joint committee and a meeting of bondholders wras called for the afternoon of a certain day to receive the report. The report was sealed and the details of the plan were not definitely known. In the morning of the day for the meeting Mrs. Miller was approached to obtain her assent to some adjustment and to a surrender of her bonds. It was given upon the defendant’s executing the following agreement:</p> <p>“Whereas, on the twenty-first day of November, or the fourth day of December, 1876, I, Egbert Rinehart, did guarantee the payment to Dr. William Miller of the three bonds mentioned in the paper hereunto annexed and marked ‘A,’ as in said qrnper mentioned (which said bonds are now the property of Mrs. D. B. Miller, widow of said William Miller).</p> <p>“And whereas, said bonds are a lien on the lands and real estate of the association mentioned in said paper CA,’ which paper is made a part of this instrument.</p> <p>“And whereas, I also desire the surrender and cancellation of said bonds and the substitution of other securities in the place thereof, to which the said D. B. Miller has consented and agreed.</p> <p>“ Now, therefore, in consideration of the premises and of the sum of one dollar to me in hand paid by said D. B. Miller, and also divers other good and valuable considerations to me paid, the receipt whereof is hereby confessed and acknowledged, I, the said Egbert Rinehart, do hereby agree and further guarantee to and with said D. B. Miller, that in the event that any or all of the matters and things hereinbefore mentioned or referred to shall happen, or in case the said bonds of my said guaranty shall be cancelled or destroyed, or otherwise disposed of as required by said association hereafter, and in spite of and notwithstanding anything that may happen or he done at the request of said association, or in behalf thereof, my aforesaid guaranty of said bonds and my obligation created and incurred by reason of said guaranty, shall remain in full character and effect, and this is hereby declared to be a continuing running guaranty for the payment of said sum of three thousand dollars and interest (according to the original terms of said original guaranty), attached to, and belonging to, and guaranteeing any and all securities, acts, papers, writings and proceedings of said association in relation to the said D. B. Miller, and of its indebtedness to her hereafter to be done, continued or made.</p> <p>“ As witness my hand and seal this eighteenth day of February, A. D., 1880.</p> <p>“EGBERT RINEHART, [l. s.] ”</p> <p>Subsequently, at the bondholder’s meeting, an agreement was proposed and signed by Mrs. Miller, through-her attorney, and by the other holders of bonds. It recited the issuance by the company of the bonds to the amount of $78,200, secured by second mortgage; that the company was “ desirous of paying and settling in full the aforesaid bonds and coupons for interest, and to have the mortgage discharged of record,” and the agreement was, first, that it sold and was to convey to a trustee for the bondholders certain hotel property and certain 216 lots.</p> <p>“ Second.— The said bondholders hereby purchase from the said, the 1 Sea Cliff Grove and Metropolitan Camp Ground Association,’ the aforesaid property at the price or sum of seventy-eight thousand two hundred dollars ($78,200), upon the terms hereinbefore mentioned, and agree to pay the said sum of seventy-eight thousand two hundred dollars ($78,200) in the aforementioned bonds of the said the ‘ Sea Cliff Grove and Metropolitan Camp Ground Association,’ held by us respectively, and secured by the mortgage aforesaid, to John H. Stout and George B. Remsen ; and we do further agree to cancel or to cause the said mortgage to be cancelled of record. It being understood that there is nothing due thereon when said bonds shall be surrendered, and surrender up the bonds of said association, together with the coupons for interest from the date of the last payment on said coupons on receiving the conveyance covenanted to be given in the first article of this agreement.</p> <p>“ This agreement is to bind the heirs, successors and assigns of the respective parties thereto, to the extent of the bonds held by them respectively, to a conveyance of a pro rata portion of said property to the extent of their said bonds, at the valuation this day submitted, a copy of which is hereto annexed and marked Schedule ‘ B,’ and is to be performed and completed within six months of the date hereof.</p> <p>“ This instrument not to be binding unless signed by all the bondholders.”</p> <p>Subsequently these plaintiffs became the owners of the lots, and also the assignees of all rights under the agreements of guaranty of this defendant.' The lots were sold at public auction in 1885, and, realizing less than the value of the bonds originally held, the plaintiffs commenced this action to hold the defendant for the difference, after proportionately applying the proceeds of sale to the amount represented by the former bonds mentioned in his guaranty.</p> <p>The case on appeal to the General Term and to this court did not and does not contain any certificate, nor any statement whatever, to the effect that it contained, or now contains, all the evidence given on the trial, nor does it in any manner show that it included, or now includes, all the evidence bearing upon any question sought to •be reviewed at the General Term. This omission precluded the General Term from reviewing any question of' fact. (Porter v. Smith, 107 N. Y. 531; D. S. M. Co. v. Best, 50 Hun, 76; Fell v. N. Y. L. Works, 20 N. Y. S. R. 577; Maxon v. Maxon, 16 id. 74; Averell v. Hurd, 15 Civ. Pro. Rep. 162; Wilkinsons. Herbert, N. Y. S. R. 436; Graff v. Ross, 47 Hun, 152; Harkness s. N. Y. E. R. R. Co., 23 J. & S. 532 ; Cortice s. West, 50 Hun, 47; Spence v. Chambers, 39 id. 193; Lowery s. Erskine, 113 N. Y. 52; Baird v. Mayor, etc., 96 id. 577; Van Buckelin s. Berdel, 21 N. Y. S. R. 429; Sterling s. M. L. Ins. Co., 17 id. 694; M. H. Bank v. Van Antwerp, 21 id. 377; Day v. Town of New Lots, 107 N. Y. 148; Manchester v. Tibbetts, 19 N. Y. S. R. 299; Foote v. Valentine, 48 Hun, 475; Gardiner s. Schwab, 110 N. Y. 650; Mullinhoff v. Scherer, 15 Civ. Pro. Rep. 160 ; Donohue s. Hammel, 17 N. Y. S. R. 994; Porter v. Smith, 35 Hun, 118 ; 107 N. Y. 531; Spencer s. Chambers, 36 Hun, 193.) The defense that the Sea Cliff lots were taken and received in full payment of the $3,000 for which the bonds were given, is inconsistent with the defense of compromise ; the defendant elected to try the case on the former theory and waive the latter. Ho such question, therefore, can be raised on appeal. (Nealan v. G. T. R. R. Co., 24 Wkly. Dig. 523, 525.) To make out the defense of payment in this case, the onus is upon the defendant to prove affirmatively that the lots were taken by Mrs. Miller under an express agreement that they should be received in actual full payment of the debt, but, instead of that being done, the evidence clearly establishes that the lots were not taken in full payment, and the referee has so found. (K. Bank v. Gay, 19 Barb. 459 ; Crane s. McDonald, 45 id. 354; Noel v. Murray, 13 N. Y. 167; Foley v. Barber, 5 Johns. 68 ; Palmer s. Guersney, 7 Wend. 248; Claflin v. Ostrom, 54 N. Y. 581, 585.) The instrument on which this action is founded is more than a guaranty, but, if it were not, we should still insist that this action is clearly maintainable. (Allen v. Rightmere, 20 Johns. 365 ; Douglass v. Howland, 24 Wend. 48, 49, 50; Union Bank v. Coster, 3 N. Y. 203 ; Schulty v. Crme, 6 Hun, 236 ; 64 N. Y. 659 ; Claflin v. Ostrom, 54 id. 581; E. N. Bank v. Kaufman, 93 id. 273; Everson v. Gere, 40 Hun, 248; Arnot v. E. R. R., 67 N. Y. 315; McLaren v. Watson, 26 Wend. 425; Gould v. Ellery, 39 Barb. 163; In re Blakely, 27 Eng. L. & Eq. 280; Wyke v. Rogers, 12 id. 162; Woodcock v. O. W. R. R. Co., 21 id. 285; Wright v. Stores, 6 Bosw. 600; Bayliss on Sureties & Guar. 290 ; Morgan v. Smith, 70 N. Y. 537; Culro v. Damies, 73 id. 217; Palmer v. Purdy, 83 id. 144; W. Bank v. Bigler, Id. 51; Hagey v. Hill, 75 Penn. St. 109; Underhill v. Palmer, 10 Daly, 478 ; 50 N. Y. 375 ; 4 Johns. Ch. 131; 2 H. & W. L. C. 370; Brandt on Sureties, § 373 ; People v. Lee, 104 N. Y. 441; C. M. L. Ins. Co. v. C., etc. R. R. Co, 41 Barb. 9 ; 22 How. Pr. 56; 24 Wend. 35 ; W & O. Co. Ins. v. Blackmer, 48 N. Y. 663 ; Mead v. Parker, 41 Hun, 577 ; Milk v. Rich, 15 id. 178; 80 N. Y. 27; White v. Baxter, 71 id. 255 ; Diossy v. Morgan, 74 id. 11; Harrison v. Wilkin, 69 id. 412; _P. 67 Co. v. Blake, 85 id. 226; Enos v. Thomas, 4 How. Pr. 49 ; Winchell v. Doty, 15 Hun. 1; Hennandez v. Stillwell, 7 Daly 360; Tooker v. Winston, 17 Wkly. Dig. 303; Humfrey v. Hayes, 94 N. Y. 594; Herd v. Callahan, 9 Abb. [N. C.] 374; Baynor v. Lanx, 28 Hun, 35; Herring v. Sanger, 3 John. Cas. 71 ; White v. Baxter, 71 N. Y. 255.) A referee’s refusal to find a fact as requested is not ground for exception where there is any conflict of evidence. (Porter v. Carpenter, 71 N. Y. 74; Putnam v. Furman, Id. 590 ; Porter v. Smith, 35 Hun, 118.) Death, pedigree, etc, may be proved by reputation. (Stovenwell v. Stevens, 26 How. Pr. 244; Jackson v. King, 5 Cow. 239; Russell v. Jackson, 22 Wend. 277; Jackson v. Bonehan, 18 Johns. 37.) That the defendant cannot raise any question on appeal, which he has waived on the trial, is too well settled to require citation of authorities. (Osgood v. Teule, 60 N. Y. 475.) Rinehart having, for his own benefit, requested the surrender and cancellation of the bonds and the substitution of other security, and promised and agreed that, if that should be done, he would be responsible j and the request having been acted upon and complied with by the owner of the bonds, he cannot now claim that such surrender and cancellation was an extinguishment of the debt and relieved him from all liability. He is estopped from setting up any-such defense. (Jackson v. Parkhurst, 9 Wend. 209; C. C. Bk. v. Reilly, 4 Den. 481; Torey v. Bank of Orleans, 9 Paige, 649 ; Demeyer v. Legg, 18 Barb. 14; Dempysey v. Tyler, 3 Duer, 73.)</p> <p>The defendant, being a guarantor, may stand upon the strict terms of his obligation. ( Ward v. Stahl, 81 N. Y. 408; People v. Chalmers, 61 id. 351; Miller v. Stewart, 9 Wheat. 680 ; Albany, etc., v. Dorr, 1 Den. 268; Ludlow v. Simond, 2 Caines’ Cas. in Error, 1.) After the execution and subsequent fulfillment of the agreement of February 18, 1880, the bondholders had no remedy against the Sea Cliff Association, even if the property received by them respectively should not realize the full amount of the bonds. (Lainson v. Tremere, 1 Ad. & Ell. 792; Bowman v. Taylor, 2 id. 278; Wiles v. Woodward, 5 Exch. 557; Cutter v. Bowen, 11 Q. B. 973; Van Rensselaer v. Kearney, 11 How. Pr. 323.) It is open to the respondent, in an appeal taken from an order granting a new trial upon stipulation, to urge errors of the Trial Court which were not noticed by the General Term. (Mackay v. Lewis, 73 N. Y. 382; Godfrey v. Moses, 66 id. 254; Simon v. Canaday, 53 id. 298; People v. Lacoste, 37 id. 192.)</p>

This action was brought by the plaintiff to recover the possession, or, in lieu thereof, the value of seventy-six baskets of prime Borneo rubber, F. F., alleged in the complaint to have wrongfully, unlawfully and illegally come into the possession of the defendant between July 1, and November 1, 1885, and to be wrongfully, unlawfully and illegally detained by the defendant from the plaintiff.

Wiechers, and granted the motion. The nature of the action and the material facts are stated in the opinion. The cause of action set out in the complaint does not survive against the executors of Wiechers. (Laws of 1875, chap. 611, § 37.) This action, so far as it affects Wiechers, is a penal action. (Bank of California v. Collins, 5 Hun, 209 ; Easterly v. Barber, 65 N. Y. 252, 255; Reynolds v. Mason, 54 How.

The material facts are stated in the opinion. The plaintiff’s right to a discovery and inspection of the defendant’s books and papers is based on the fact that the plaintiff is a cestui que trust seeking to compel his trustee to account for the trust estate. In such cases the cestui que trust has the right to an inspection of all books of the trustee, which refer to the trust, even though they be the private books of the trustee.

The nature of the action and the material facts are stated in the opinion. The power of the court to appoint a receiver has been defined by the legislature, and there remains no power in the Supreme Court by which an unlimited discretion can be exercised. (Code Civ. Pro. § 713; 13 Abb. Pr. 6; 66 N. Y. 127; People ex rel. v. Bowe, 81 id. 43; Dusenbury v. Keiley, 85 id. 388.) The court below erred in appointing plaintiff receiver.

The nature of the action and the material facts are stated in the opinion. The order of the General Term reviews and in part reverses the judgment of the Court of Appeals upon the record, which was presented to this court upon defendant’s appeal from the judgment. This oversteps the jurisdiction of the General Term, and is in excess of its lawful authority.

This was a motion to vacate a judgment taken against defendant by default for want of appearance or answer. The material facts are stated in the opinion.

This action was brought to recover of the defendant for the wrongful and unlawful conversion of about 5,000 barrels of oil, which the plaintiff claims ivas produced from an oil well belonging to him, and was placed in the possession of the defendant for storage by William and Maria Stephan.

The nature of the proceeding and' the facts are sufficiently 'stated in the opinion. Upon the trial of an issue ■of fact before the surrogate, section 2545 of the Code makes sections 992-998 applicable to surrogates courts “so as to ■enable the surrogate’s rulings upon the law to be reviewed, Avhere there is no question of fact involved, without the ■expense and trouble of making up a case containing all the testimony.” (Throop’s Anno.

favor of plaintiff and granted a new trial. The nature of the action and the material facts are stated in the opinion. In estimating the language that constitutes a lease, the form of words is of no consequence ; it is not even necessary that the term lease should be used. (Moore v. Miller, 8 Penn.

<p>Appeal from judgment of the General Term of the Supreme Court in the third judicial department, entered upon an order made at the May term, 1888, which affirmed a judgment in favor of defendants entered upon a decision of the court on trial at circuit.</p> <p>The nature of the action and the material facts are stated in the opinion.</p> <p>The general rule applicable to cases where a party is compelled to make election, is: If one should make a choice in ignorance of the real state of the funds, or under a misconception of the extent of the claims on the fund elected by him, it will not be conclusive on him. (Wells v. Robinson, 13 Cal. 133, 142; Kerr on Fraud and Mistake, 453; Pusey v. Desboizoeir, 3 P. Wms. 315.) This rule is applicable to dower. (Hindley v. Hindley, 29 Hun, 318; Larabee v. Van Alstyne, 1 Johns. 307, 308; Macknett v. Macknett, 29 N. J. Eq. 54; 2 Scribner on Dower [2d ed.] 519, 523; Cameron on Dower, 489, § 94 ; Id. 490, § 97; Richart v. Riehart, 30 Ia. 465; Dabney v. Bailey, 42 Ga. 521.) A case still stronger arises in favor of the plaintiff where fraud and deceit are alleged. (Smart v. Waterhouse, 10 Yerg. 94; Story on Agency, § 139 ; Bennett v. Judson, 21 N. Y. 238; I. P. & C. R. Co. v. Tying, 63 id. 653 ; Krumm v. Beach, 96 id. 398.) The demurrer to the-amended complaint was sustained at Special Term on the theory that under no possible circumstances can a widow, who has omitted to make her election within one year after the death of her husband, be relieved from the provisions of the statutes. (1 R. S. 741, 742, §§ 13, 14; Bindley v. Bindley, 29 Hun, 318; Bone v. Van Schaick, 7 Paige, 221; Howland v. Heckscher, 3 Sandf. Ch. 519; 20 Wend. 564; 3 Sandf. Ch. 523 ; Manice v. Manice, 1 Lans. 348; 43 N. Y. 303; Egbert v. Thompson, 17 N. J. L. 450.; Osman v. Porter, 39 N. J. Eq. 141, 142, 144; 41 id. 663.) The Special Term erred in sustaining the demurrer. (16 Abb. [N. C] 268; Thomas v. Beebe, 25 N. Y. 244; Maher v. Ins. Co., 67 id. 284, 292; Bank of Montreal v. Thayer, 2 McCrary, 1; Stevens v. Austin, 1 Metc. 557; Stevenson v. Maxwell, 2 N. Y. 408-415; Bruce v. Tillson, 25 id. 194; Mills v. Van Voorhees, 20 id. 412-422; McClaskey v. City of Albany, 64 Barb. 310 ; Code Civ. Pro. § 723; Bennett v. Judson, 21 N. Y. 237,239, 240.) The receipt and retention by the wife of the fruits and product of a fraud of her husband involve a liability on account of it, although herself innocent of participation in it. (Krumm v. Beach, 96 N. Y. 398, 404, 405; Baker v. U. M. L. Ins. Co., 43 id. 208; Garner v. Mangam, 93 id. 642; Noel v. Kinney, 106 id. 74, 78.) If the election was made in ignorance of the real state of the facts, or under a misconception of her rights, it is not binding in equity. (Wells v. Robinson, 13 Cal. 133, 142; Kerr on Fraud and Mistake, 398, 453; Pusey v. Desbouvrie, 3 P. Wins. 315 ; Bindley v. Bindley, 29 Hun, 318 ; Osman v. Porter, 39 N. J. Eq. 141; 41 id. 663 ; Thompson v. Egbert, 17 N. J. L. 459.) The court erred in excluding material and competent evidence offered by the plaintiff. (Bayliss v. Cockroft, 81 N. Y. 363, 371; McKown v. Hunter, 30 id. 625; Bedell v. Clease, 34 id. 386; D. Co. Ins. Co. v. Hatchfield, 73 id. 226, 229.) The fact that the premises in question were subject to a perpetual yearly rent, did not show that they were not subject to dower. (1 E. S. 722, § 2; Id. 740, § 1.) The grounds upon which the General Term sustained the judgment of nonsuit, are insufficient. (Hickey v. Morell, 102 N. Y. 454, 463; 1 R. S. 761, § 33 ; Stuyvesant v. Hall, 2 Barb. Ch. 151; Ackerman v. Hunsicker, 85 N. Y. 43, 49; King v. McVicker, 3 Sandf. Ch. 192, 209; H. Ins. Co. v. Halsey, 8 N. Y. 271; George v. Wood, 9 Allen, 80.) The action was triable by jury. (Code, § 968, subd. 2; Train v. H. P. Ins. Co., 62 N. Y. 598; Trustees, etc., v. Kirk, 68 id. 464; Ormes v. Dauchy, 82 id. 443, 448, 449; Moore v. M. Bank, 55 id. 41, 44; Birdsall v. Patterson, 51 id. 43; Code, §§ 1010, 1023.)</p> <p>A representation to be material should be in respect of an existing and ascertainable fact, as distinguished from a mere matter of opinion or advice, and must be false and one that the party knew at the time to be false. Such are representations about property or facts that could not be ascertained. (Cooper v. Schlesinger, 111 U. S. 148; Hubbell v. Meiggs, 50 N. Y. 480; Kerr on Frauds, 83; Harvey v. Young, Yelv. 20; N. B. R. Co. v. Conybeare, 9 H. L. 711; Colby v. Gadsden, 34 Beav. 416 ; Jennings v. Broughton, 5 D, M. & G. 136; Stephens v. Venable, 31 Beav. 124; Irvine v. Kirkpatrick, 7 Bell, 186 ; Palsey v. Freeman, 2 Smith L. C. 1337; Ellis v. Andrews, 56 N. Y. 83; Chrysler v. Canaday, 90 id. 272; Furmann v. Titus, 16 J. & S. 284.) If the statement as made upon the trial can in manner be construed as sufficient as a statement of fact, it cannot be made so in any other way. than by showing that it was known by the maker to be a false statement. (Marsh v. Faulkner, 40 N. Y. 562; Oberlander v. Spies, 45 id. 175 ; Craig v. Ward, 3 Keyes, 393 ; Best on Ev. 302, 349; Lawson on Presumptions, 93 ; Kerr on Fraud, 384; Baird v. Mayor, etc., 96 N. Y. 592; Bigelow on Frauds, § 142.) In the case of a special agency it is elementary that if the special agent .exceeds the special limited authority conferred upon him the principal is not bound by his acts, but they become a mere nullity as far as he is concerned. (Story on Agency, § 126 ; Ritch v. Smith, 82 N. Y. 627.) The fact that the estate afterward became insolvent and the plaintiff received little or nothing out of it cannot relieve her from her failure to elect. (Manice v. Manice, 1 Lans. 348; Hone v. Van Schaick, 7 Paige, 222; Scribner on Dower, 432, 525.) The widow has lost her dower, because she has failed to take any action, as provided by law, within one year of the death of the testator, and the court has no power to extend the time for election upon the grounds asked for in the complaint. (2 R. S. 742, §§ 13, 14; Redf. on Wills, 383; Palmer v. Voorhis, 35 Barb. 479 ; Nicholas v. Nicholas, Ky. Dec. 338; Waterbury v. Netherland, 6 Heisk. 512; McDaniel v. Douglas, 6 Hump. 229; Eco parte Moore, 7 How. [Miss.] 665 ; Thophy v. Abbott, 42 N. Y. 443; Crawford v. Lockwood, 9 How. Pr. 547; Knebble v. Newcomb, 22 N. Y. 249; Hodgdon v. Chase, 29 Me. 51.) The plaintiff is not entitled to dower-in the property described in the complaint, for the reason that it is not an estate of inheritance. (1 Steven’s Comm. 218 ; Littleton, § 1; Cook’s Littleton, 2370; 1 Washb. on Real Prop. 194; 1 Scribner on Dower, 363; Volkner v. Hudson, 1 Sandf. 215; N. Y. Const. 1846, 1876; Stevens v. Reynolds, 6 N. Y. 455 ; Stangler v. Slangler, 1 Md. Ch. 36; Goodwin v. Goodwin, 33 Conn. 314; Park on Dower, 47; Ware v. Washington, 6 S. & M. 637.)</p>

The nature of the action and the material facts are stated in the prevailing opinion. The General Term held that, under the pleadings, failure of the defendant' to prove a forfeiture of the policy in the mode required by the act of 1876-7, was fatal to the defense. It is submitted that this was error. (Laws of 1876, chap. 341; Laws of 1877, chap. 321; Howell v. Ins. Co., 44 N. Y. 276; Bogardus v. Ins.

granted a new trial. This was an action of replevin. The goods in question were levied upon by the sheriff under and by the virtue of an execution issued against John Sherlock and John Bulger, the individual members of the firm of Bulger & Sherlock, upon judgments recovered on firm liabilities. .Plaintiff claimed title under a bill of sale executed by Bulger. The further material facts are stated in the opinion.

The nature of the action and the material facts are stated in the opinion. The order granting the new trial in this action is appealable and this court will review the decision of the General Term with the same thoroughness as if the appeal were from a judgment.

The nature of the action and the material facts are stated in the opinion. The award is void, because the arbitrators did not pass upon all the questions submitted to them.

The nature of the action and the material facts are stated in the opinion. The action -was against a domestic corporation to recover damages for the nonjiayment of a promissory note, and was clearly within the provisons of section 1778 of the Code of Civil Procedure; and the failure of the defendant corporation to serve with its answer an order of a judge directing that the issues be tried, entitled the plaintiff to take judgment against it by default.

The nature of the appeal and the material facts are stated iii the opinion. Where land is sold under a judgment and the surplus moneys are brought into court, creditors having liens upon the land, subsequent to the judgment, have the same liens upon the surplus moneys which they had upon the land previous to the sale.

The nature of the charge against the relator and the material, facts are stated in the opinion. This court has power to review the judgment of the General Term in the case at bar. (Code Civ.

The nature of the proceeding and the material facts are stated in the opinion. The discretion lodged in the board of police to remove an officer from the force, can only be exercised in a fair and reasonable way upon a hearing of all the facts. (Laws of 1882, chaj>. 410, § 272.) The charge, signed by the-sergeant commanding and by the surgeon, was in compliance with the rules of the department, and even if not, the objection, not having been taken at the trial, was waived.

This was an application by the petitioners, as .trustees under the will of Elizabeth F. Floyd, deceased, for leave to sell three parcels of land held by them under the following provision of her will: “ Sixth.— I give, devise and bequeath to my executors hereinafter named, all real and mixed estate of which I may die seized or possessed in trust, nevertheless, to have and to hold the same during the respective lives of my son-in-law, George Thomas Yingut, and my youngest…

<p>Appeal from order of the General Term of the City Court of Brooklyn, made November 25, 1889, which affirmed an order of Special Term directing a peremptory writ of mandamus to issue.</p> <p>The relator was the owner of a lot in the city of Brooklyn which it was alleged and not denied was by mistake included in an assessment for repaving, being outside of the district fixed by the common council for the assessment of the-expense of said improvement. Upon the collector proceeding to enforce the 'assessment by levying on the relator’s property, the latter instituted this proceeding, making said collector a party, to compel the assessors to strike out the assessment and the tax against his lot and to restrain the collection thereof. The petition alleged that the lot was included in the assessment by mistake.</p> <p>Further facts are stated in the opinion.</p> <p>Bo duty has been east by law upon the board of assessors to correct the assessment in question by striking therefrom the assessment upon relator’s lot. (Laws of 1873, chap. 862 ; Hermance v. Bd. of Super., 71 N. Y. 481, 486 ; Laws of 1869, chap. 85; Laws of 1871, chap. 695.) To entitle relator to a writ of mandamus he must show himself legally and equitably entitled to some right properly the subject of the writ, and that it was legally demanded from the person to whom the writ must be directed. (People ex rel. v. Clark, etc., 3 Abb. Pr. 309, 320; People ex rel. v. Canal Appraisers, 73 N. Y. 443, 447; Laws of 1873, chap. 862, § 34; People ex rel v. Hoyt, 66 N. Y. 656; People ex rel. v. Gerow, Id. 606.) The confirmation of said assessment by the common council was final and conclusive, and the assessment cannot now be attacked. (In re Kiernan, 62 N. Y. 457; In re Sharp, 56 id. 257; Litchfield v. Vernon, 41 id. 123; In re General Park, 50 id. 493, 496; Barhyte v. Shepherd,, 35 id. 238; Matter of Brady, 69 id. 215, 219; Matter of Parks. 73 id. 560, 565.)</p> <p>Bo appeal lies in the matter, because it is from a judgment, and the matter in controversy is less than $500. (Code, § 191; People ex rel. v. Willard, 18 N. Y. S. R. 604; Roger v. Sandy. Hill, 94 N. Y. 638.) The writ is properly directed to the board of assessors and the collector of taxes and assessments. (Laws of 1888, chap. 583, pp. 46, 47, 69; People ex rel. v. Brooklyn, 71 N. Y. 495.) The points.made by appellants that the city of Brooklyn had advanced the amount of the assessment and would lose the $200 sought to be imposed on relators which it should have assessed on other land, and that the relator should have been compelled to take some other proceeding than mandamus, are not tenable. (Laws of 1888, chap. 583, § 15; People v. Assessors, 44 Barb. 148; Barhyte v. Shepherd, 35 H. Y. 255; People v. Olmstead, 45 Barb. 644; People v. Super., 4 Hill, 20 ; Clement v. Jackson, 92 N. Y. 591; Cooper v. Register of Arrears, 114 id. 19; People v. Super., 70 id. 229; People v. Super., 85 id. 612; People v. Super., 51 id. 401.)</p>

The nature of the appeal and the material facts are stated in the opinion. The order of the General Term is appealable. (S. Bank v. Alberger, 78 N. Y. 252; E. L. Co. v. Stevens, 63 id. 341.) The construction given to the statute by the General Term respecting the allowance of alimony and counsel fees cannot be sustained. (2 B. S. chap. 8, §§ 58, 59; Code Civ.

The nature of the action and the material facts are stated in the opinion. The demurrer can only be-sustained if, upon the facts alleged and admitted, the plaintiff is not entitled to any relief. (Emery v. Pease, 20 N. Y. 62 Hale v. O. H. Bank, 49 id. 626; Marie v. Garrison, 83 id. 14; Kingsland v. Stokes, 25 Hun, 107; Pierson v. McCurdy, 61 How. Pr. 134.) The plaintiff is entitled to commence and prosecute this action. (Laws of 1858, chap. 314; Atty.-Gen. v. G. M. L. Ins.

affirmed a judgment in favor of defendant, entered upon the report of a referee. This was an action for the partition of real estate. The material facts are stated in the opinion. By express statute, the ■deed, not being acknowledged, and having no subscribing witness thereto, is of no effect against the plaintiff.

This action was brought to vacate, as fraudulent, a conveyance of real estate made by defendant, Horton Harder, who, it was conceded, was at the time insolvent, to defendant Nicholas W. Harder, and a conveyance of the same property from ¡Nicholas W. Harder to Mary Gr. Harder, wife of the insolvent. The facts, so far as material, are stated in the opinion. The referee erred in excluding the testimony relating to the proceedings in bankruptcy on the day of the transfer.

The nature of the action and the facts, so far as material, are stated in the opinion. The learned trial judge erred in refusing to dismiss the complaint, because the plaintiff was never in possession of the premises in question.

Carpenter. The facts, so far as material, are stated in the opinion. The home bought by the pensioner with his pension money is exempt from levy and sale under an execution. (Code Civ. Pro. § 1363; Stockwell v. Nat. Bank, 36 Hun, 583; Burgett v. Fancher, 35 id. 647; Tillotson v. Wolcott, 48 N. Y. 188; Whiking v. Barrett, 7 Lans. 106.) The exemption of property from liability for the payment of debts is a creature of the statute.

This was a proceeding, by certiorari, under the act, chapter-269, Laws of 1880, to review an assessment. The material facts are stated in the opinion.

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

Gross appeals from judgment of the General Term of the Supreme Court in the fifth judicial department, entered upon an order made the first Tuesday of January, 1887, which reversed in part a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term. The nature .of the action and the facts, so far as material, are stated in the opinion. In overruling the defendants’ motion for a nonsuit the referee did not err.

Appeal by the relator, William Kemmler, from an order of the General Term of the Supreme Court, in the 5th Department, affirming an order made by the county judge-of Cayuga County, dismissing a writ of habeas corpus sued out by the relator, and remanding him to the custody of the: defendant. The opinions of the county judge and of the General Term are respectively reported, ante, 350 and 364. The, facts sufficiently appear in these reports.

. • The facts, so far as material, are set forth in the opinion. The court erred in permitting the witnesses Phelps and Slacer, physicians, called on behalf of the people to testify as to the mental condition of the defendant. (People v. Stout, 3 Parker’s Crim.

<p>Appeal from judgment of the General Term of the .Supreme Court in the first judicial department, entered upon -an order made June 19, 1888, which affirmed a judgment in favor of defendant, dismissing plaintiff’s complaint on the merits, upon a decision of the court on trial at Special Term.</p> <p>The nature of the action and .the facts, so far as material,. are set forth in the opinion.</p> <p>The plaintiff had not constructive notice of defendant’s claim. (Williamson v. Brown, 15 N. Y. 362, 364; Pope v. Allen, 90 id. 298, 303; Oooke v. Travis, 20 id. 400; Staples v. Fenton, 5 Hun, 172; 3 Wash, on Real Prop. 317; Claiborne v. Holmes, 51 Miss. 146; Bil lington v. Welch, 5 Binney, 129; Page v. Waring, 76 N. Y. 463, 471; Chesterman v. Gardener, 5 Johns. Ch. 29; Grin-stone v. Carter, 3 Paige, 421; Webster v. Van Steenbergh, 46 Barb. 212.)</p> <p>The defendant Margaret Brady’s possession and occupation under a deed, though unrecorded, was notice as to her ownership of the property. (Gerard on Beal Estate, 593, 594; Goveneur v. Lynch, 2 Paige, 300; Bank of Orleans v. Flagg, 3 Barb. 318; Tuttle v. Jackson, 6 Wend. 213 ; Moyer v. Hinman, 13 N. Y. 184; Trustees, etc., v. Wheeler, 61 id. 88-98 ; Gavalli v. Allen, 57 id. 517; Chesterman v. Gardner, 5 Johns. Ch. 39; Territt v. Cowenhoven, 11 Hun, 320; Troup v. Hurlbut, 10 Barb. 354; Smith v. Jackson, 76 Ill. 254; Greer v. Higgins, 20 Kan. 420; Brown v. Volkening, 64 N. Y. 76-83; Page v. Wearing, 76 id. 463-470; Seymour v. McKinstry, 106 id. 230-238; Robinson v. Wheeler, 25 N. Y. 260; People v. Snyder, 41 id. 402; Seymour v. Van Slyck, 8 Wend. 403, 404; Sharder v. Bunker, 65 Barb. 608 ; Brown v. Austin, 30 id. 358; Ernest v. Reed, 49 id. 367; Tracy v. Snowden, 23 Wkly. Dig. 41; Moyer v. Hinman, 13 N. Y. 184; Merithew v. Andrews, 44 Barb. 200 ; 2 Pomeroy’s Eq. Juris. 665.) The fact that the property in question is a tenement-house, lias no proper bearing on the question, and cannot change the rule. (Page v. Waring, 76 N. Y. 470; Crosland v. M. S. F. Assn., 121 Penn. St. 82, 83; Brown v. Volkening, 64 N. Y. 84; DeRuyter v. Trustees, etc., 2 Barb. Oh. 556; 2 Pomeroy’s Eq. Juris. 665.) The defendant was. guilty of no negligence. (Seymour v. McKinstry, 106 N. Y. 230.) The defendant being in actual possession under a deed covering the premises, and claiming under a specific title adversely to John E. Murphy, plaintiff’s mortgagor, the mortgage under the Revised Statutes is void. (Fish v. Fish, 39 Barb. 13; Cary v. Goodman, 22 N. Y. 174; Bradstreet v. Clarke, 12 Wend. 675 ; Christie v. Gage, 71 N. Y. 189.)</p>

This action was brought to recover payment for certain sets of Dickens’ works sold by the plaintiffs to the defendant. To' sustain his action, plaintiff read in evidence upon the trial the; following paper, viz: ¡New York, March 8,1886.. Messrs. Geo.

This action was brought to set aside a bond and mortgage and to have the same cancelled as usurious.

This action was brought to recover damages to plaintiff’s, premises, by reason of the building of an embankment by defendant on an adjoining street. As a majority of the court did not concur in the opinion, it is not reported in full.

<p>In proceedings under the act of 1880 (Chap. 369, Laws of 1880), to review .an assessment,’ where it appears to the court that the assessors have acted “ with gross negligence,” costs may be awarded against them.</p>