Volume 12 — New York State Reporter

<p>1. Libel—What "wobds abe libelous.</p> <p>If the words published tend to injure the character of the plaintiff or to degrade him in public estimation, or to bring him into disrepute or ridicule, they are libelous, and an action may be maintained for damages by the injured party. Per Tittjs, J.</p> <p>:2. Same—Where question eob jury.</p> <p>If the words used are capable of a construction which will make them actionable, it presents a question for the jury, even though they are also capable of an innocent construction. It is only where the language is incapable of a construction injurious to the plaintiff that the court is justified in withholding it from the jury. Per Hatch, J.</p> <p>3. Same—Libelous article—Complaint—Demurrer,</p> <p>The plaintiff, who is proprietor of a private detective bureau, brings this action to recover damages for the publication of a libel in the defendant’s newspaper. The article complained of, which is fully set out in the complaint, criticises the board of health for employing and paying for the services of private detectives instead of the regular police-detective force of the city, in the business of the health department, and closes with the following language concerning the plaintiff: ‘tThere may be an explanation. The ority decent one we can ourselves imagine (and that is hardly half decent), is that the respected gentlemen of the board of health wanted something done in the liue of spy.ng and sneaking, meaner and dirtier than they had the face "to ask the police department to do, and so they went to Col. Byrne.” The complaint further averred two other articles: One a reiteration of the first, with a statement that it was only an imagination of what the board of health might well have thought, and another headed “ Byrnes Boodle.” On demurrer to complaint: Held, that the articles were libelous and that the demurrer should be overruled. Per Titus and Hatch, JJ.; Beckwith, 0. J., concurring as to the overruling of the demurrer, but only on the ground that the court cannot say as a matter of law that the published articles are defamatory.</p>

<p>1. Master and servant—Negligence—When question of fact.</p> <p>The plaintiff, an infant under thirteen years of age, was employed by defendant in its canning factory. At first, she was placed at a harmless employment, surrounded by no danger. Of such fact her parents were informed. After a few weeks spent there, she was directed by the defendant to go to the fourth floor (where there was machinery) for work. She did so. and while there applied to the person in charge for leave to run the “ solder cutting machine.” This was permitted, ana she continued such employment for a day and a half, until the solder was exhausted. The defendant did not at any time give plaintiff any instructions, nor warn her of the existence of any danger, or caution her about going near the machines. After the solder was exhausted, as aforesaid, plaintiff was left idle in the presence of the machinery, where other girls were operating the-machines. The machines were in motion, and plaintiff walked about thirty feet to the “ cap cutting machine,” started to work it, without the direction or permission of defendant or any other person, and was almost immediately injured. In an action for damages on account of said injury: Held, that defendent owed an active affirmative duty to the plaintiff to protect her from injury; that it was for the jury to- determine whether he was negligent, taking into consideration the facts and circumstances., Titus, J.—(dissenting)—Held that the facts of the case did not raise the-question of negligence. The defendant was not called upon to warn the-child of the danger attending the operation of the machine. It was her voluntary and negligent act. She was of sufficient age and experience to know better, and that these facts brought the case within the rule where-negligence becomes a question of law.</p> <p>3. Same—Duty of masters to servants who are minors.</p> <p>Where a master engages the service of an infant in a dangerous occupation, or when the service performed is safe in itself, but the surroundings, are dangerous, an active, affirmative duty rests upon the employer to provide safeguards, and to give to the infant such instruction as will enable him to understand and appreciate the danger by which he is surrounded, such safeguards and instructions to be measured by the danger to be apprehended and the capacity of the infant.</p> <p>3. Same—When negligence of servant a bar to action for injury.</p> <p>Negligence upon the part of an infant servant, contributing to the injury, is as effectual by way of defense as though he were an adult. What constitutes negligence, however, upon his part is to be determined by the evidence and the inferences which arise therefrom, measured and graduated by his age and capacity, to appreciate his surroundings.</p>

The plaintiff is the owner of subdivision lots, Nos. 17, 18 and a part of 19 of outer lot No. 2, in the city of Buffalo. So far as important here, said subdivision lot 19 has a practical southerly frontage upon the exterior line of a public street in said city known as Water street, and an easterly frontage upon a body of water running at right angles to Water street, known and called the Evans ship canal, to speak more accurately.

<p>■Costs—When party entitled to—Mortgage foreclosure—Nature of action.</p> <p>An action was brought between the parties hereto to foreclose a certain mortgage. Subsequent to its commencement the foreclosure of a prior mortgage on the same premises and sale of the premises produced a surplus, which was applied on the junior mortgage, and there was still left a sum due. The court granted plaintiff leave in said action to serve a supplemental complaint settingup the changed circumstances. This demanded judgment against certain defendants for the amount remaining due and unpaid, but made no demand for a personal judgment against the defendant, Mary A. Pooley. In the action as originally commenced, Mary A. Pooley was made a party defendant solely for the purpose of cutting off her right of dower as wife of William Pooley, but she appeared and answered by á denial of each allegation in the amended complaint. To the supplemental complaint she demurred, and being beaten on the demurrer she answered by a general denial, and that the said complaint stated no» cause of action against her, etc. On the issues thus raised and litigated, plaintiff was successful. The said Mary A. Pooley was a necessary and proper party to the original action. Held, she was not. entitled to costs;, that the service of the supplemental complaint did not make it purely an action at law; that the action remained an equitable action.</p>

<p>Contract of hiring—Construction of—Breach—-Damages.</p> <p>In an action to recover damages for breach of a contract of hiring, it appeared that the parties had been in negotiation, and that in answer to an inquiry made by the defendant, plaintiff wrote “ if you will pay me $3.50 per day to start in with I will accept, and will leave the rest to your best judgment hereafter, as to my work and ability, and I would like to com--menee work the first of January.” Defendant answered “ I expect you to come and work for me," and later because of certain alterations to building ‘ ‘ I should prefer that you should not get here until about the middle of January, as you will then find things looking unpleasant enough, for un-, til the building is completed and our belt shop is ready things must of course be topsey turvey." The defendant refused to permit plaintiff to perform work, and this action was brought. Held, that as no specific time of service was mentioned, either party had the right to terminate it on any day after the commencement of performance without liability to the other.' That plaintiff was limited in his recovery to the price of one days’ service. That there was no time fixed for the employment to begin and the contract will not be considered a continuing one after the breach.</p>

<p>1. Judgments—Priority of—Lien on real estate—Not affected by equity SUITS.</p> <p>As far as real estate is concerned, judgment creditors will acquire liens thereon in the order in which their judgments were docketed, and this priority will not be disturbed or affected by the order in which equity suits are brought to set aside a fraudulent assignment affecting such real estate.</p> <p>•%, Same—In equity suit—No specific lien upon real estate.</p> <p>Suits in equity to set aside a fraudulent assignment or conveyance may enure for the benefit of such judgment creditors by removing an apparent obstacle in the way of enforcement of their legal rights, but such an equity suit, even though resulting in a judgment setting the assignment aside, creates no specific lien upon real estate as it might upon purely equitable assets or upon personal property.</p> <p>;3, Same—Senior creditor has advantage of action taken by junior CREDITOR.</p> <p>Judgment creditors will retain their liens and may enforce the same in the order of the docket, regardless of the fact that junior judgment creditors have been more diligent in commencing equity suits and in obtaining therein decrees adjudging the assignment void; and a decree simply adjudging the assignment void will be construed to operate in aid of the judgment, and not as a waiver of the legal lien by such judgment secured.</p> <p>4. Dower right—Not affected by lien of judgment.</p> <p>A judgment against a husband recovered after marriage will be a lien, not superior but subordinate to the wife’s inchoate right of dower.</p> <p>•5. Same—Attaches to surplus moneys—May claim in surplus proceedings.</p> <p>The wife’s right of dower attaches to surplus moneys in the same manner that judgments do, and her claim may be asserted in surplus proceedings.</p> <p>6. Same—Not affected by clause as to surplus in mortgage.</p> <p>The wife by joining in a mortgage containing a clause stipulating that the surplus, if any, shall be paid to the husband or those claiming under him, does not thereby release or convey her inchoate right of dower in the surplus moneys, if there should be any.</p>

<p>Judgment entered upon forfeited recognizance—When canceled.</p> <p>On an .application -to vacate-ancLcancel of record -a judgment against-the defendants herein as surety and principal respectively, entered .upon a forfeited .recognizance, it appeared that'the accused .person subsequently appeared for trial, was tried, convicted.and .paid the fine imposed. Held, that the "bail was entitled to have the said judgment against him discharged.</p>

<p>Tender—When proved.</p> <p>Where the defense to an action is that a tender was made, to make the defense good, there must be proved an unqualified and unconditional tender in money or its equivalent, or it must be shown that the party by his declarations or acts relieved the defendant of making a proper offer of the money to him.</p>

<p>Contrast of sale—When an action for price cannot be mainTATNBD.</p> <p>In an action brought to recover the contract price of a safe alleged to have been sold to defendants, the contract was as follows: It is agreed that Marvin Safe Company shall not relinquish its title to said safe, but shall remain the sole owners thereof until above sum is fully paid in money, and, if notes are given, until all such notes are actually paid in cash.” Held, that the execution of this agreement did not constitute a sale. That the plaintiffs could recover possession of the safe, but not the price of it as a safe actually sold.</p>

<p>1. Corporations—When creditor mat bring action against stockholder—Laws 1875, chap. 611.</p> <p>Under Laws 1875, chapter 611, as under the act of 1848, a creditor is required to exhaust his legal remedy against the corporation before proceeding against the stockholder The obtaining oí a judgment and the issuance and return of an execution against the corporation unsatisfied is made a condition precedent to the arising of the special and peculiar remedies against the stockholders Until thg judgment creditor has exhausted his legal remedies against the corporation the individual stockholder’s liability as an indemnitor does not arise</p>

<p>1. Costs—When entitled to in burro g-ate’s coubt.</p> <p>In the course of the administration of intestate’s estate it appeared that he was administrator of his deceased wife’s estate and that as such administrator he had received the proceeds of a certain mortgage for which he had not accounted. The surety on the intestate’s official bond being dead, said surety’s administatrix on hearing of a proposed action against her obtained leave from the court to appear on the accounting of this intestate’s administrator and to present such claims as she might have by way of defense etc., to the said action; said administratrix appeared by counsel and after several adjournments a compromise was effected with the approval of the court. The attorney for the said surety’s administratrix asked to be allowed costs out of this intestate’s estate. Held, that he was not entitled to any allowance.</p> <p>2. Compensation op executors, administrators and guardians, limited TO STATUTORY COMMISSION.</p> <p>A person who has acted as an administrator, executor or guardian, can not be allowed any compensation, beyond his statutory commissions for services rendered the estate.</p>

<p>1. Will8—Testamentary capacity—Lack of.</p> <p>If a person at the time of making his will, was influenced by a belief, which had no foundation outside of his imagination, and from which, owing to a diseased or impaired condition of the brain, he was incapable of being dissuaded, he did not have testamentary capacity. The true inquiry in determining testamentary capacity is whether the will was the result of an insane delusion.</p> <p>8. Same—Belief in spiritualism—Not alone an evidence of insanity.</p> <p>While to some minds a belief in spiritualism might seem strange and be an evidence of weak and even morbid intellect, it cannot be held as a matter of law or fact to be evidence of insanity.</p> <p>8. Same.</p> <p>It is essential that a person making a will have capacity to comprehend perfectly the condition of his property, his relation to the persons who were or would have been the objects of his bounty, and the effect of the provisions of the will. A person whose judgment is affected by disease, so that he is compelled to the belief that his friends are his enemies, does not have capacity to comprehend his true relations to the persons who might by law be the object of his bounty.</p> <p>4. Same—Evidence of want of testamentary capacity.</p> <p>Where on a contest as to the admission of a will to probate the proof showed that the testator was physically weak, was credulous of advice which he believed came from supernatural sources and was the victim of hallucinations; hearing pistol shots which others tried to persuade him were not real, yet persisted in telling what he heard and even believed he knew that certain persons had attempted to take his life, saying and believing that his relatives were constantly endeavoringto rob him of his property and wrong him, and that they shot at him. Meld, that the belief of the testator that his brothers and other relatives “ the Keelers ” as he called them were trying to rob him, even to the extent of committing the gravest crime known-to the law was a delusion. The persistent adherence to this opinion against argument is in the circumstances of this case and the mental weakness convincing evidence that he was insane and not of testamentary capacity</p>

<p>1. Bills and notes—When validity of depends on performance ov CONDITIONS.</p> <p>An instrument not under seal may be delivered upon conditions the observance of -which, as between the parties, is essential to its validity, and the effect of the delivery and the extent of the operation of the ins rument may be limited by the condition upon which the delivery wa-s made. This-is so as between the parties to it, or those having notice, although the instrument be negotiable.</p> <p>8. Same—When consideration fails.</p> <p>The making and delivery of a certain note was an incident of an agreement to produce a certain play, the performances of which were to create-the fund out of which alone the note was to be paid. There were no such performances and no such fund Held, that the consideration for the note-failed. and that there could be no recovery thereon.</p> <p>3. Same—Consideration for re-delivery and annulment of</p> <p>The agreement to perform a different play which plaintiff owned was a sufficient consideration for the cancellation of the agreement to perform the first play and the re-delivery and annullment of tile said note.</p>

<p>1. Practice—Amendment after demurrer.</p> <p>A defendant who has demurred to the complaint may serve an answer as an amended pleading following Funk v. Bush (63 How. Pr., 888), hut differing from Smith v. Laird (9 N. Y. Stat. Rep., 376).</p> <p>2. Same—Verification by agent—Form of.</p> <p>The agent in verifying a complaint swore that “ all the material allegations of the answer are within h:s personal knowledge,” this was sufficient without assigning any reason why the verification was not made by the party.</p>

<p>Appeal from an order made at special term taxing the sheriff’s bill herein.</p>

Appeal by the plaintiffs fr.om orders denying motions to strike out certain parts of the answers in the above actions as irrelevant and to separately state and number the counterclaims therein contained.

<p>Appeal from an order made at trial term directing judgment on the pleadings in favor of the plaintiffs, upon the ground that the defendant’s answer is frivolous and from the judgment on said order.</p>

<p>Gaming—What is not a violation of statute.</p> <p>The plaintiff sued for losses in the purchase and sale of oil alleged to have been made by plaintiff as the broker of defendant. One of the grounds of defense was that it was in contravention of the statute against gaming. Held, that it was necessary for the defendant, in order to establish this defense, to show that it was the understanding of the parties at the time the contracts were made that the oil should not be delivered, and that only the difference in the market price should be paid or received.</p>

<p>Negligence—Cable railroad—Question for jury.</p> <p>This action was brought to recover the value of plaintiff's horse which was injured by having the “calk” on the shoe of one of its hind legs caught in the “slot” through which the grip from the car ran, which attached the car to the moving cable. The horse was so injured that it had to be killed. The defendant’s liability depended upon the fact whether the width of the slot was more than three-quarters of an inch, and if more, whether such excessive width was the cause of the injury. There was a conflict in the evidence on these questions. Held, that these questions were properly submitted to the iury, and their verdict should not be disturbed.</p>

<p>Statute of frauds—Oral promise to pat debt of another void.</p> <p>An oral pi cruise to pay the debt of another, even for a good consideration, is void under the statute of frauds.</p>

Action by the plaintiff against the defendant to recover $4,064.61 with interest for building a bridge across the Tonawanda creek at Attica.

<p>Appeal from a judgment entered upon a non-suit. William P. Gooddelle, for pl’ff, app’lt; Louis Marshall, for def’t, resp’t.</p>

<p>Negligence—Contributory negligence—Proof of, bar to recovery.</p> <p>The decedent was killed "while crossing the (racks of the di fendant. It was established by the evidence that the head-light of a locomotive at the-crossing where the accident occurred, lights the road 150 or 200 feet in advance, and that if the decedent had looked he would have seen the locomotive, or if he had listened he would have heard the bell of the locomotive. Held, that whether he did not see the locomotix e, or, seeing-it, attempted to cross in front of it and stumbled, could not be determined^ but in either case he was negligent, and the non-suit of plaintiff was right.</p>

<p>Appeal from a judgment entered upon findings made at the Oswego circuit, a jury having been waived. Controversy over the ownership of an island in the Oswego river</p>

Action to recover $16.45, interest and protest fees, advanced by plaintiff upon a note of $616, made December 7, 1878, by one Hort, to the order of defendant and indorsed by him. James P. Olney, for appellant, contended: First.

“Appeal from a judgment entered in Broome county, foreclosing a mortgage bearing date April 1,1868, executed by Mary Angell to Godfrey Harper, to secure the payment or $6,200.

The plaintiff’s intestate was killed on the 20th day of December, 1882. His death was the result of a collision between one of the defendant’s trains and the cutter or sleigh, on which he was riding. The collision occurred at a highway crossing near the defendant’s station, at Holmesville, Oswego county, N. Y. The train consisted of an engine, tender and baggage car. The train was running southerly. The tender was- south of the engine and the car north off the engine.

<p>1. Justices Court—Adjournments—Plaintiff’s right to irregular ADJOURNMENTS—EFFECT OF.</p> <p>Ordinarily no adjournment can be had on the application of the plaintiff, except at the time1 of the return of the summons, and then not to exceed eight days. Code Civ. Pro., § 2960. Win n a commission is granted upon the application of the plaintiff, ‘he is entitled to further adjournments. ( ode Civil Procedure, 29¡>3. But when the application for a commission is made by the defendant, or if no commission be issued, the justice has no right to grant plaintiff an adjournment. In s > doing the adjournment is irregular, and the case will be out of court as between the parties.</p> <p>3. Evidence—Transcript of bill of sale—How and when admissible —Code Civ. Pro., g§ 945, 957,</p> <p>By section 945 of the Code of Civil Procedure, the duly certified transcript of the record of a bill of sale of a steam tug and of the enrollment of such tug in the custom house is made evidence. To make such transcript evidence, it must, however, be certified by the collector in the form provided by section 957 of the Code of C.vil Procedure. The certificate must state that the copy has been compared, by the person making the certificate with the original, and that it is a correct transcript therefrom and of the whole of the original. The certificates to neither of the papers complied with the requirements of that section, and were insufficient to justify their admission in evidence.</p>

, and also from an order denying a new trial upon the minutes. Action to recover upon a certificate or policy of insurance issued by defendant bearing date August 14, 1884. Application was made on the 12th of August to one Miller, an agent of the defendant, in a hardware store in Union. Charles E. Hay, the insured, was the husband of the plaintiff, and committed suicide on the 23d day of August, 1884, by shooting himself through the temple.

<p>1. Criminal law—Special proceedings—Right of appeal—Chapter 372, Laws 1884.</p> <p>The right of appeal did not exist prior to 1884 in special proceedings of a criminal nature. Section 515, Code Criminal Procedure, only applied to a judgment or order in a criminal action. By chapter 372, Laws 1884, that section was so amended as to give the right of appeal in special proceedings of a criminal nature. This right is given in lieu of a wilt of certiorari.</p> <p>3. Poor—Support of poor persons—Livingston county poor law— Chapter 334, Laws 1845—The support of poor persons a chargb upon the town until removed to the county poor house.</p> <p>The overseers of the poor of the town of Cazenovia began proceedings against Edward Smith, who resided in that town, to compel him to support his son James Smith. An objection was raised that under the law the Livingston county poor law, chapter 334, Laws 1845, being in force in Madison county, in which county was the town of Cazenovia, the application should he made not by the overseers of the town, but by the superintendent of the poor of the county. It was conceded that the Livingston county poor law had been adopted by the board of supervisors of Madison county, pursuant to chapter 245, Laws 1846. The court tf general sessions held that under the Livingston county poor law the poor are a charge upon the county, and that, therefore, by reason of section 926, Code of Criminal Procedure, this proceeding should have been brought in the name of the superintendent of the poor, and the application was denied. He’d, that the Livingston county act did not make all the poor of a county a charge in the first instance upon the county. Before such persons are removed to the county poor house they are a charge upon the town where they shall he relieved or supported, and that, therefore, the application was properly made by the overseers of the poor.</p> <p>3. Criminal law—Costs not allowed in special proceedings.</p> <p>Held, that there was no statutory authority for charging Tillotson with, costs.</p>

<p>The plaintiffs leased to Jane Flanders a farm from April 1, 1885, to April 1, 1886, for $200 rent, $100 payable November 1,1885, and $100 payable February 1, 1886. The lease contained the following clause:</p> <p>“ And it is hereby agreed that said parties of the first part should have a hen as security for the payment of the rent aforesaid upon all the crops which are or may be put on the said demised premises, and such lien may be enforced on the non-payment of any of the rent aforesaid by the taking and sale of such property in the same manner as in cases of a chattel mortgage on default thereof. Said sale to be made on six days’ notice, posted upon the demised premises,, and served upon the party of the second part, or left at said premises or at her place of residence.”</p> <p>The lease was filed in the proper town clerk’s office with the chattel mortgages. In January, 1886, the defendant purchased from the lessee and removed from the farm eight and a half tons of hay (grown on the farm in 1885), at $12 per ton, $102, towards which he paid $5, leaving $97 due. The lessee has not paid the rent, and told the defendant when the hay was sold that he had not. The plaintiffs, without having an assignment of "the cause of action for the recovery of the purchase price, brought this action for its recovery in a justice’s court, where they had a judgment-for $97.48 damages, and $4.97 costs, which was reversed by the judgment of the county court, from which the plaintiffs appeal.</p>

<p>Insurance (life)—Mutual benefit associations—When corporation BECOMES LIABLE TO PAT.</p> <p>In an action brought to recover on two certain policies of insurance issued by the defendant, a corporation organized upon the co-operation or assessment plan, it was shown that an assessment upon its members would have brought in more than sufficient to pay the amount due on the policies and that there had been due proof of death of the assured, who was a member thereof. The complaint set out the certificates of insurance, in each of which were words of promise to pay, substantially as follows: “ The Union Mutual Association agrees to pay the sons of Carl G., * * * share and share alike, $1,000, * * * .” It alleged the proof of death and, lapse of time, failure to pay, and that the amount became due at a specified date; that defendant promised to pay and its failure to pay. The defendant gave no evidence of any defense. Held, that the plaintiffs showed a breach of the defendant’s contract; that they were entitled to recover the amount of said policies. Following Freeman v. The National Benefit Society, 5 FT. Y. State Rep., 83.</p>

<p>1. Negligence—Master and servant—Selection of fellow servants —Negligence of master not inferred.</p> <p>The mere fact that a fellow servant is inconv'etent does not tend even prima facie to establish negligence on the part of the master, but the burden is upon the servant seeking to recover to establish the fact that the injury resulted to him because the master did not exercise reasonable and proper care in selecting such servant. This must be affirmatively established as a fact in the ca-e, and cannot result as the inference from the circumstance that the servant causing the injury was in fact incompetent. Negligence is not to be presumed, but must be proved.</p> <p>2. Same—What evidence insufficient to establish negligence.</p> <p>The evidence relied upon to establish the incompetency of the fellow servant was that he did not answer a signal to remove a certain pin from a coupling, and that for the two days he had been engaged with the plaintiff in working for the defendant, he had borne a very poor reputation as a railroad man among the hands on that particular train. Held, that it was wholly insufficient to overthrow the presumption that the defendant exercised proper and reasonable care and diligence in selecting and employing him. That there could be no inference of negligence from the evidence.</p>

Action to recover a balance alleged to be due the plaintiff for services as chief engineer, performed in 1885, from April, 1885, to August, 1885, in the construction of a roadway.

Also, an appeal from an order denying a motion made upon the trial judge’s minutes. Action was begun in a justice’s court, and a recovery of $10.0. It was appealed, and a new trial had in the county court. The accident causing alleged injury to the plaintiff’s horse, occurred on Blaze Hill, in defendant’s town, FebruarylO, 1886.

<p>Appeal from a judgment entered upon a verdict, and from an order denying a motion made on the minutes, for a new trial.</p>

Action upon a note. Defense by Isham that he was not a partner, never made the note -or authorized it to be made by Stimson, and that he was not liable upon it.

<p>Action to recover of defendants two-thirds of the expense of repairing a dam.</p>

<p>Motion by defendant to vacate an order restraining-waste, granted under section 1681 of Code.</p>

Motion by defendants to set aside replevin papers as void and for the return of the property replevied. It was claimed that the papers were void by reason of defects in the affidavit. The papers were served with the summons and the property taken by the sheriff January 12, 1887: He held the property until January 15, 1887, and then delivered it to the plaintiffs.

On the 24th of February, 1883, Mahettable Stocking died in the city of Binghamton, leaving her last will and testament and a codicil thereto. She was the owner of certain real estate, on which she had resided for a great number of years, on the south side of Main street, in the said city.

<p>Costs—Real party in interest chargeable with.</p> <p>A party owning a claim against another assigned it to a third person for action. After due trial judgment was rendered against the assignee of the claim for costs. Held, that the assignee being irresponsible the original owner of the claim being the real party in interest was liable for the costs of the action.</p>

<p>Mortgage—Alteration—Evidence that alteration was before execution AND DELIVERY.</p> <p>In an action to foreclose a mortgage the defendant claimed it was void because of an alteration therein which changed the date of payment of the first installment of principal and also the date from which interest was to run. The evidence showed that the bond which had not been altered agreed with the mortgage as altered. The draughtsman certified that the alteration was made to correct a mistake. The mortgagee testified that no change had been made since its delivery to him. which was not contradicted. Neither the draughtsman or mortgagor were called as witnesses. The mortgagor, by his payments of interest thereon, demonstrated that he understood the agreement to be as expressed therein. In its unaltered condition the mortgagee would have agreed to do without the first year’s, interest. Held, that there was evidence to sustain a finding that the mortgage was executed and delivered in its altered form; that therefore the defense was not good.</p>

<p>Broker—Contract of employment—When employee entitled to compensation ON BREACH.</p> <p>The defendant offered to employ plaintiff as his agent to sell his farm on commission. This offer the plaintiff accepted, verbally, and on the same day, to the knowledge of the defendant, commenced work and then and subsequently rendered services and expended moneys in an honest endeavor to sell the farm. By the contract of employment plaintiff had a year in which to procure a purchaser, he alone to bear the risk of failure, and only receive compensation in the event of success. At the end of a month, and before plaintiff had found a purchaser, defendant revoked his authority to act as agent. Held, that for this breach of the contract the defendant was liable and the plaintiff entitled to recover the value of the services actually and in good faiih rendered and the reasonable and necessary expenses incident thereto. That the case is distinguishable from those where the contract was not for a specified time.</p>

<p>Appeal—What questions reviewable upon.</p> <p>Where an action has resulted favorably to a party in a trial court, the only question presented by his appeal from the judgment is that of damages, and exceptions taken by him to rulings made by the court upon his right to recover at all do not require examination unless affecting the amount of recovery.</p>

<p>Evidence—What does not justify a reversal of judgment.</p> <p>Where a fact is sufficiently proven by circumstances, a judgment based thereon will not be reversed because evidence corroborative of the fact, which has been admitted as res gestee may not be properly admissible as such.</p>

<p>1. Surrogate’s court—Power to open decree—Code Crv. Pro., § 2481, bubd. 6.</p> <p>A surrogate’s court cannot open or modify its decree, except in a like case and in the same manner as a court of record and of general jurisdiction exercises the same power.</p> <p>2. Same—When improper to open decree.</p> <p>When a party has had his day in court, he must show that it was not his fault that he did not improve it before he can get another day on the same matter. Ho court of general jurisdiction will permit its decree to be opened upon the mere suggestion or proof of one of the parties that some item of credit was not allowed Mm.</p> <p>3. Same—Improper exercise oe the power—Will be corrected.</p> <p>This power must be exercised with care, and its inconsiderate use will be corrected.</p>

, Action to recover for injuries received by plaintiff, March 23, 1886, at Palmyra. Plaintiff in company with one Partridge, about two o’clock in the afternoon reached the station on the Central road at Palmyra, and one Pulver, met them at the depot. Brickell, the plaintiff, took passage in Pulver’s top buggy for the village of Palmyra.

<p>1. Practice—Supplementary proceedings—Contempt—Order of county judge in—Where reviewable in first instance—Code Crv. Pro., §§ 2457 and 2433.</p> <p>A county judge made an order in supplementary proceedings adjudging the defendant in contempt for disobeying an order requiring him to he examined. Seld, that said order was reviewable in the first instance only by the court out of which the execution was issued upon a motion to vacate or modify it.</p> <p>3. Same—Appeal—Order made by court—How reviewed.</p> <p>An order made by a court on such a motion may be reviewed on appeal by the general term.</p>

<p>Bill of exchange—What is—Order does not amount to an assignment UNTIL ACCEPTED—ORAL ASSIGNMENT—HOW PROVED.</p> <p>The defendant owed third parties certain moneys. The plaintiffs had furnished material" to said third parties, who gave them an order on defendant as follows : “ Please pay to Harris & McHenry two hundred and fifty dollars, and charge to the account of,” etc. Indorsed on the back was a receipt by Harris & McHenry for one hundred dollars. Held, that, the instrument was in legal effect a bill of exchange, and not having been accepted, the defendant was not liable thereon for the remaining $150. That the order did not amount to an assignment. That an oral assignment was sufficient to vest the plaintiffs with title to the claim. That it was competent for plaintiff to testify to an oral assignment.</p>

<p>1. Beal property—Lands under water—Grant op.</p> <p>This action was one to determine the title to lands under water. The complaint stated a title to the lands under water based upon a deed to the plaintiff which was stated to convey upland and land under water. Held, that the action involved the title to the adjacent upland, as plaintiff’s grant from the state, of lands under water, could not be valid unless made to upland owners.</p> <p>% Pleadings—Amendment—What allowable.</p> <p>Held, that amendment to the complaint claiming title to the upland, should be allowed, it being within the spirit of the complaint.</p>

<p>1 Judgment—Appeal prom—Questions reviewable.</p> <p>Upon, an appeal from a judgment, there being no appeal from am order denying a new trial, Held, that questions of law only, could be reviewed.</p> <p>2. Accounts—Balance op—Deduction op credits.</p> <p>Held, That upon an action for board and attendance rendered, it was proper to charge the jury that in case they found for the defendant, they Should in adjusting the balance take out any sum which they might find from the evidence in the case to have been paid to the defendant, aside from the board.</p>

<p>Gotoíter-ci, aims—What maybe interposed as—Code Ciy.Pro., §§ 501, 503.</p> <p>This action was brought upon an undertaking executed on the procuring of an order of arrest in a civil action. Upon the trial of the action in which the order was obtained, the complaint was dismissed. In the present action it is set up as a defense that prior to the institution of the action last aboved referred to, the defendant therein was indebted to one of these defendants for moneys loaned to him individually and for others loaned to him and another. This latter claim is assigned by the defendant in whose favor it originally existed, to the other who sets it up as a counterclaim. Held, the undertaking upon which this action was brought being joint and several upon which a separate judgment might be recovered against either defendant, that the counter-claim, representing a cause of action against the person who the plaintiff represented at the time of the commencement of the action was properly allowed under Code Civ. Pro., §§ 501, 503.</p>

<p>Mortgage—Delivery—What will constitute delivery.</p> <p>Where a mortgagor voluntarily placed a mortgage on record after the death of the mortgagee, and notified his executrix thereof, and she acquiesced in such action: Held, that it constituted a valid delivery of the mortgage to the executrix.</p>

<p>Appeal from a judgment entered on a verdict of a jury in favor of plaintiff, and from an order denying defendant’s motion on the minutes of the judge for a new trial.</p>

<p>Corporations—Title to property.</p> <p>In 1863, a company was incorporated under the name of the Empire Hook and Ladder Co. No. 1, of Upper Nyack, but the village of Upper Nyack, in which the building used by it was situated, was not incorporated until 1873. The plaintiff was, so far, a part of the fire department of the village of Nyack as to participate in the elections and to be assigned to a fire district. In 1885, the building and property of the Upper Nyack company was destroyed by fire, and subsequently a majority of the company met at-a hotel in Nyack and elected officers, which organization the plaintiffs represent. A minority of the members met in Upper Nyack, and elected. officers. Held, that the organization was for local protection, and that the meeting to elect officers outside the upper village was unauthorized. That the insurance on the buildings should go to Upper Nyack, and the property obtained for local protection should not be applied elsewhere.</p>

<p>Juey — Trial by — Actions for sum of money only, must ordinarily BE TRIED BY JURY—CODE ClYIL PRO., § 968.</p> <p>Under the provisions of Code Civil Pro., § 968, an action in which the complaint demands judgment for a sum of money only, must be tried by a jury unless a jury trial is waived or a reference is directed.</p>

<p>.Gift—Upon condition—When not operative.</p> <p>The grandfather of the plaintiff made a will by which he provided for the plaintiff to some extent, though not so generously as he did for others of his kin, and stated that he did • not feel quite satisfied with the provision made for her. Subsequently he was taken ill, and at that time gave her a sum of money, which he told her to keep for whatever purpose she might wish, if anything were to happen to him suddenly. The evidence showed that before his death, having somewhat recovered his strength, he destroyed the will. Held, that the deceased gave the money with the intent to equalize the share of his next of kin and heirs-at-law, and that having later destroyed the will and put them on an equality, the gift in case of sudden death did not become operative in the spirit of the words used.</p>

jury in favor of the plaintiff, and from an order denying a motion for a new trial on the judge’s minutes. The facts-sufficiently appear in the opinion.

<p>Negligence—Duty of passenger in attempting to leave a car— Obstructions in passage-way—Company not guilty op negligence IN ALLOWING PASSENGERS TO CARRY BUNDLES IN THE CARS.</p> <p>The plaintiff in attempting to leave the cat endeavored to pass between * two passengers, one having an umbrella in his hand, the other a basket between his feet on the floor. This basket was placed near the car wheel box by which the plaintiff attempted to pass In so doing, in alighting from the car, she fell in the street. There was no evidence to show that the construction or condition of the car was faulty or defective in any way Held, that the defendant was not chargeable with negligence or inattention in permitting the passenger to carry his basket in the car- and place it on the floor, and that the plaintiff, with full knowledge of the obstruction in her pathway, in undertaking to pass unassisted between the two men, assumed all the dangers and risks of such a passage.</p>

<p>Appeal from a judgment of the Westchester county special term dismissing the complaint herein entered in the clerk’s office of said county.</p>

<p>Appeal from a' judgment in favor of the plaintiff' rendered at the Dutchess county special term.</p> <p>On January 31, 1887, Parker & Co. made their check on the City National Bank of Poughkeepsie for $80.82, payable to the order of defendant Russell. This check was indorsed by Russell, and transferred to defendant Holmes on February three. Holmes kept it until the ninth of February, when it was deposited in the plaintiff bank. It-was protested the next day, February tenth. The notary at the plaintiff bank mailed notice of protest to Holmes on that day, and enclosed with it a notice for defendant Bussell. Holmes received the notice February eleventh. The notice for Bussell was taken by the witness, Edward Drake, • enclosed in an envelope addressed to Evart D. Bussell, Pleasant Valley, and deposited in the post-office in that village on the fourteenth of February. Mr. Holmes- and Mr. Bussell both lived in that town, and received their mail matter at the same office. Parker & Co. made an assignment on February sixteenth. Their checks were all paid on presentation at the City National Bank until February ninth. A draft of theirs for $368.75 was certified on the seventh of February. This check would have been paid any time before February ninth.</p>

<p>Appeal from an order and interlocutory judgment entered in the clerk's office of Queens county overruling a demurrer to the complaint.</p> <p>This is an action in equity, to have certain deeds of the real property described in the complaint, set aside and de~ dared void, and to compel defendant Searing to convey said property to the plaintiff.</p> <p>The complaint sets out:</p> <p>First. That on June 15, 1886, the plaintiff was the owner of the real property in question, freed of all incumbrances.</p> <p>Second. That, at that time and since about September, 1885, the defendant Searing was engaged in the paper and cardboard business in New York city.</p> <p>• .Third. That in, prior to and, since said September, the defendant Searing, with intent to injure and defraud the plaintiff and her son, the defendant, Hermann Palmer, and to obtain from plaintiff the said lands, and certain sums of money, and • to induce her said son to become a co-partner with him, falsely and fraudulently represented to plaintiff and to her said son, that his, Searing’s, business was a profitable business, that the assets in September were upwards of $50,000 over all habilities, and were producing a large yearly profit of over $12,000, and that if plaintiff would render her son pecuniary aid, he, Searing, would take him as a partner, giving him a one-fourth interest in the assets, and that any sum or property which she might loan or transfer to her son would be put into the business, which would be and had been conducted on a cash basis as was represented, and that she would at any time be able to withdraw the money or property from the business, and that her son would, under the terms of the co-partnership agreement, be enabled to repay and return the money or property to her from his interest in the business, and that the money or property to be so avanced would not be applied to or made liable for any habilities, either of the business or of defendant, Searing.</p> <p>Fourth. That in consequence of these representations, on which the plaintiff and her son relied, the co-partnership agreement annexed to the complaint was obtained by Searing from the son, and the plaintiff advanced to her son, from time to time, various sums of money, which in October 1885, amounted to $14,481.40, to be invested in the business, and on June 15, 1886, was induced to and did convey to her son the said real property by good and sufficient deed to be turned over to said business in the place and stead of a note of $5,000 given by the son to the firm and being one of the notes referred to. in the co-partnership agreement.</p> <p>Fifth. That all the representations so made by Searing were grossly false, to his knowledge, as particularly shown in the complaint.</p> <p>Sixth. That, by reason of the foregoing facts, and the fraud and deceit of Searing, the plaintiff was induced to, and did, convey said lands to her son, who thereupon conveyed them to Searing (not to Searing & Oo.).</p> <p>That Searing still retains the title to said lands under the deed of Hermann Palmer, and, though requested, refuses to re-convey to plaintiff.</p> <p>Searing demurred to the complaint on these grouuds:</p> <p>First. That there is a defect of parties plaintiff, because Searing’s fraud and deceit were practiced alike on the mother and son, and they should both be plaintiffs.</p> <p>Second. That several causes of action have been improperly united, (a). That they do not affect all the parties to the action, as defendant Hermann Palmer is not affected by the cause of action against Searing, as his fraud and deceit were practiced against the plaintiff and her son. (b). That the defendant Searing is not affected by the cause of action alleged against Hermann Palmer for his alleged breach of contract in transferring the said property, (c). That the defendant Palmer is not affected by the cause of action alleged against Searing for a decree requiring him to convey the said lands to plaintiff, and that a cause of action against Hermann Palmer for a breach of contract is joined with one for fraud against Searing, and that one for breach of _ contract for failure of consideration against Searing is joined with one for fraud against him.</p> <p>Third. That the complaint does not state facts sufficient to constitute a cause against the defendant Searing.</p>

<p>Will—Construction of.</p> <p>By tlie will of the testator certain legacies were given subject to a life interest in the estate to the widow of deceased. These legacies were to be paid out of the capital of the estate after the widow’s death, '-the remainder of the capital ” is given to certain residuary legatees The executors were directed to hold the whole estate during the widow’s life, and to apply the whole income to her use. The homestead farm was given to the widow to use and occupy “ free of rent so long as she shall live, and I direct that my said trustees, during the time my said wife shall so use and occupy said farm, to pay out of my estate from time to time, as the same shall accrue or become necessary, all taxes upon said farm, and the expense of keeping the buildings thereon in proper repair, and all other expenses attending the proper upholding and maintaining the same, and also the interest on any and all mortgages which shall be upon said farm at the time of my death.” Held, that the interest, expenses and taxes paid by the executors during the life of the widow (she having died) on the homestead, were to be paid out of the income of the estate.</p>

<p>Contract on employment—Duration on.</p> <p>Where a contract of employment did not fix the term of service. Held, that the relation created thereby continued until terminated by one or the other of the parties, and that in the absence' of any clear indication of any such purpose on the part of either of the parties a referee was justified in finding that it continued.</p>

<p>1. Acceptance—What does not constitute.</p> <p>Where machinery was represented to he in good condition at the time at which it was sold and was not so in fact: Held, that the fact that the party to whom it was delivered kept it and used it for a month, was not conclusive proof of acceptance of it, hut equally consistent with an effort to utilize it and avoid controversy in the matter.</p> <p>S. Payment made nr the Interest of a party without bequest.</p> <p>A party making a payment voluntarily in another party’s hehalf cannot recover therefor.</p>

<p>Evidence—Leading question—Objection—What is not sufficient.</p> <p>In an action to recover for services performed under a contract, the-plaintiff was asked a general leading question respecting the performance of what was stated in the contract, to which a general objection was-taken. Held, that the objection being general and the testimony sought competent and proper, the objection was properly overruled.</p>

<p>The administratrix herein voluntarily presented her accounts for settlement ; thereafter an heir-at-law filed objections thereto, and an order of reference m usual form was made. After the administratrix had rested her side of the case, and the contestant had examined several witnesses, counsel for contestant asked referee to compel administratrix to take the witness stand and be examined, not as a witness by them, but generally touching her account; she refused. The surrogate made an order compelling her to do so. This order she moved to set aside, claiming that it was increasing the power of the referee; was not within the meaning of section 2735 of the Code. From the order refusing to vacate said order she appeals.</p> <p>The order is as follows :</p> <p>“You are hereby ordered ana required to attend before John A. Clarry, Esq., referee, on the eighth day of July, 1887, at two o’clock in the afternoon of that day, at his office, room No. 89, in the Garfield building, No. 26 Court street, in the city of Brooklyn, then and there to be examined under oath, pursuant to section 2735 of the Code of' Civil Procedure, touching your receipts and disbursements as administratrix, etc., of George H. Atkinson, deceased; and touching any other matter relating to your administration of the estate; and touching any property owned and held by the decedent at the time of his death.</p> <p>(Signed) ABRAHAM LOTT,</p> <p> Surrogate. </p>

<p>1. Master and servant—Negligence on part of servant—Extent of master’s liability.</p> <p>This action was brought to recover for injuries, which were received by the negligence of the servant of the defendant. At the time the injuries were received the plaintiff was engaged in repairing telegraph wires, and for that purpose was on the top of a telegraph pole, and standing in the position for “ tying in” with his left leg over the cross-arm, and his right knee under it in such a position as to steady him as his hands and arms were reserved for handling the wires when stretched by his companions in the street below. While in this position a servant of the defendant, who was driving a wagon in the street, allowed his vehicle to run against the wire, which tightened it, and though told to stop, whipped up his horses and thereby caused the wire to tighten so as to injure the plaintiff. The plaintiff was restricted in his claim for damages to those arising from that which occurred after the defendant’s agent had driven against the wire, at which time he had full notice of the peril in which he was placing the plaintiff. Held, that the charge was as favorable to the defense as the facts warranted.</p> <p>2, Same—Test of master’s responsibility for act of servant.</p> <p>The test of a master’s responsibility for the acts” of his servant is, not whether such act is done according to the instruction of the master to the servant, but whether it is done in the transaction of the business that the servant is employed by the master to do.</p> <p>8. Same—Master not responsible for servant’s willful misconduct.</p> <p>A person injured by the willful misconduct of a servant, cannot recover damages of the master therefor.</p>

<p>1. Contempt—Power of attorney to transfer stock—Heed not be acknowledged</p> <p>The judgment in the action required the defendants upon the surrender oí the certificates described theiein, together with powers of attorney executed in blank, executed by the referee in the action to the defendant Post, immediately to cancel such certificates, and issue new certificates, etc., of stock to certain persons named. Held, that the powers of attorney did not need to be acknowledged; that they were official documents, and their authenticity and reality was to be assumed.</p> <p>2. Same—Judgment—Compliance with.</p> <p>Post was the president of the co’mpany whose certificates of stock were to be transferred. He declined, to act on the ground that it needed two of his associates to act with him. Held, that the excuse was insufficient i that it was his duty to obey the judgment, so far as his action was concerned.</p> <p>8. Same—Practice—Appeal—Stay of proceedings after judgment— Code Ciy. Pro., § 1328.</p> <p>In order to stay all proceedings on an appeal in such an action, the thing directed to be assig-n.d must be brought into court, or placed in the custody of an officer or receiver designated by the court, or a written undertaking given.</p>

<p>1. Surprise—When claim op surprise on trial is too late.</p> <p>Where the defendant, against -whom a verdict was rendered man action claimed to have been surprised. Held., that the claim not having been put in at the trial it was too late to file it afterwards.</p> <p>2. Same—What not considered as suppicient to arrest or set aside VERDICT.</p> <p>Surprise in respect of the strength of an adversary’s evidence is not such as will warrant the arrest or setting aside of a verdict. A claim of surprise resting in opinion merely, is insufficient.</p>

<p>1. Pleading—Defenses—How many may be pleaded.</p> <p>Under th.3 provisions oi Code Civil Procedure, § 507, .controlling that subject, a party may plead as many defenses as he has. The objection of' inconsistency is not available.</p> <p>2. Same—General demurrer—When overruled.</p> <p>Where an answer alleges two defenses to the plaintiff’s case, one of which is good, a general demurrer thereto will be overruled.</p>

<p>Attorney’s lien—Judgment for costs assigned to attorney protected FROM OFFSET</p> <p>The defendant was the attorney for the defendant in an action in which-this plaintiff was plaintiff. About the time of the commencement of said action, the said deiendant agreed that all’ costs adjudged to him in that action should belong to said attorney and become his property as compensation lor his services therein. The action resulted in a judgment against. the plaintiff therein for costs, which was assigned to said attorney. During all this time the said defendant was legally indebted to the plaintiff therein. And the plaintiff endeavored to offset part of said debts against said judgment. Held, that the judgment being entirely for costs and having been assigned to the attorney, was protected from any offset in favor of the plaintiff. Following Ha/oidson v. Alfaro, 80 N. Y., 660.</p>

<p>Pleading—Practice—Who has affirmative of issue on an allegation OF PAYMENT IN THE ANSWER.</p> <p>The complaint in a certain action alleged " that the plaintiff did, between the years 1881 and 1885, at the request of said defendant, certain work, labor and services * * * of the value of $2,550.” Then followed an allegation that no part of the claim had been paid and that a demand had been made. The answer admitted that plaintiff performed certain work, labor and services during’ the times mentioned, but averred that plaintiff’s services had been fully paid for, etc., and then followed a demand for the dismissal of the complaint. Held, that the only issue presented by the pleadings was the plea of payment; that upon the trial the defendant held the affirmative of the issue.</p>

<p>New trial for newly discovered evidence.</p> <p>A new trial will not be granted on the ground of newly discovered evidence, when that evidence is merely cumulative.</p>

<p>Fraudulent representations—What are.</p> <p>In an action brought to recover upon a bond given upon the exchange of certain real estate, the defense was that the exchange was brought about and the bond given by false representations made as to the value of the property. Held, that a statement of value is not mere opinion as a matter of law; that a statement of a very enlarged value makes a case for the jury; that if the intention was to mislead, it is a defense to the claim on the promise which was the result.</p>

<p>Pleadings—Answer—Proper denial oe title—Amendment.</p> <p>The complaint in this action alleges that the plaintiff is the owner in fee simple of certain lands which are occupied by the tenants of the defendant. The relief demanded is for a recover)! of the possession. The answer of the defendant denies the plaintiff’s title and sets up her own, and admits possession of the lands by herself and her tenants. An amendment was proposed to the effect that the plaintiff’s title was acquired by tax sale and that the tax sale was void. Held, that the denial of the plaintiff’s title was the proper method of pleading.</p>

<p>1. Married women—Power of attorney executed by in another state—8 R. S., [6th ed.], p. 1151, § 75, and p. 1145, § 89.</p> <p>When a married woman residing out of this state joins with her husband in the execution of a power of attorney for the conveyance of real estate, situated' in this state, the conveyance executed in virtue of such power has the same force and effect, as if executed by such married woman in her proper person. 3 R. S. [Gth ed.], p. 1157, § 75. The proviso in the statute requires the proof or acknowledgment of the power of attorney to be in accordance with the provisions of the Revised Statutes in relation to conveyances executed by married women residing out of this state. P. 1145, § 39.</p> <p>‘.3. Same—What attorney authorized to do under.</p> <p>The power of attorney in question made no mention in terms of the inchoate right of dower ,of the married woman, but authorized the attorney to take possession of lands in which she was interested, and sell, mortgage or otherwise dispose of the same: Held, that it was sufficiently comprehensive to authorize a conveyance or mortgage of the premises in question, in which she only had an inchoate right of dower.</p>

<p>Poughkeepsie Bridge Company—Right to acquire land—Laws 1871, chap. 897—Laws 1887 chap 695.</p> <p>The Poughkeepsie Bridge Company made a map of the bridge and its appurtenances and avenues of approach and adopted the same and filed it in 1873. Subsequently, in 1887, and without filing any other map, the said company began proceedings to acquire the land in question, which was not included in said maps, for the purpose of constructing a new line of approach to said bridge. The court at special term decided the said land to be necessary for the purpose. Laws 1871, chapter 897, invested said company with power to purchase, acquire, hold and use as much real property as maybe necessary for the site of the bridge and for opening and maintaining proper and necessary avenues of approach, etc. Held, that under said act as amended by Laws 1887, chapter 695, the company was authorized to acquire the land in question.</p>

<p>1. Marriage—By habit and repute—When proven</p> <p>On the trial of an action for admeasurement of dower brought by the plaintiff, who claimed to be the widow of one Joseph Gall, deceased, the plaintiff proved that said Gall had stated to his business partner that he had. taken legal advice, and according to the law of this state he was married. It was also shown that he had made declarations to his neighbors to the effect that plaintiff was his wife; that he had purchased a house and moved all his personal effects there, and spoke of plaintiff and their children who lived there as his family, and their mutual residence as his “house.” Held, there was sufficient evidence to sustain a verdict of marriage by habit and repute</p> <p>2. Same—When marriage void on account oe another wife being ' ALIVE.</p> <p>It was shown that plaintiff had been previously married to-one Jarmann, but that at the time of such marriage Jarmann had a wife living, whom he had not seen for over five years, but that he at the time made no endeavor to find out whether his wife was living Held that the plaintiff was not the wife of Jarmann, and that the marriage of plaintiff with him was void.</p>

<p>Married women — Liability op separate estate under laws op Connecticut.</p> <p>On. the trial of an action brought upon a note given by the defendant to the plaintiff, it appeared that defendant’s husband was a manufacturer in the state of Connecticut, that the defendant had a separate estate and had loaned money to the firm of which her husband was a partner, and that she had become surety for the firm. Pursuant to an agreement, defendant borrowed from plaintiff certain money to buy up certain obligations against said firm, and gave the note in suit to take up one of like amount given by said firm to. and held by the plaintiff. The note in suit contained a statement that it was- given for the benefit of the separate estate of the wife. The contract was a Connecticut contract entirely. It was made there and to be executed there. Held, that under the Connecticut statute the note was valid against the defendant. That the defendant could have a separate estate in the note of her husband.</p>

<p>Discovert — Partnership accounts — Right op executors op a deceased PARTNER TO A PULL AND UNOBSTRUCTED EXAMINATION OP THE PERM BOOKS, ETC.</p> <p>The decedent and the defendants were in partnership. On the death of Zimmerman the plaintiffs and the defendants settled the affairs of the firm. In the settlement the defendants charged the decedent with falsifying the books of the firm and withdrawing more money than the accounts showed. In the final settlement these claims were allowed, and the balance then due was paid the plaintiffs, and all the parties released each other from all liability. The plaintiffs now seek to set aside this release on the ground of false representations on the part of the defendants, and to recover the difference between the true amount due the estate of Zimmerman and the sum actually paid. The plaintiffs moved for . nullification of a former order to examine the firm books, by which they will be allowed a full, free and unobstructed inspection and discovery of the books, with leave to copy the same. This motion was denied. Held, the plaintiffs are executors and have no personal knowledge of the transactions involved in this action. Nothing can tend more to the elucidation and settlement of such controversy than an examination of the books themselves, and in the interest of justice the fullest latitude and scope should be allowed in such examination.</p>

<p>Contracts—Failure to perform on the part of purchaser—Remedy of vendor.</p> <p>The defendant ordered a suit of clothes of the plaintiff and when completed refused tó accept the suit for the reason that it had not been completed by the time agreed upon. The evidence failed to establish a time certain at which the clothes were to he ready. Held, that the plaintiff had a right to elect to tender the same and sue for the contract-price, or retain the property and recover the difference between the market value and the contract-price.</p>

<p>Reference — Items of damages not an account — Reference not a MATTER OF RIGHT.</p> <p>The defendant sold the plaintiff a piece of land, taking back a mort* gage in which it was covenanted that the plaintiff should perform all the carpenter work required by the defendant at reasonable rates in payment of the interest in the bond. The plaintiff brings this action alleging a breach of this covenant on the part of the defendant. The defense is a general denial and a demand for a bill of particulars The plaintiff obtained an order for a reference. Held, that this is not a case for a compulsory reference as a matter of right, that these is no account between the parties, and an examination of numerous items of damages does not constitute a long account properly so called.</p>

<p>Practice—Answer containing immaterial matter—Motion to strike out.</p> <p>Where the answer contains immaterial allegations which constitute no defense to the action, these allegations will he properly stricken out on motion</p>

<p>Principal and agent—Death op principal—Ratification op the acts-OF THE AGENT BY ADMINISTRATRIX.</p> <p>Paul Weber, in 1871, leaving his property in the hands of one Hart-wig, with a general power of attorney, went to Bavaria. Bridgeman bought the property in question subject to a mortgage held by Weber. Weber died in January, 1874. In May, 1874, the mortgage was paid off' to Hartwig, who gave a satisfaction piece for the same, which, together with his power of attorney, was recorded in the register’s office. Mrs. Weber returned to America, and in June, 1874, was appointed administratrix. Hartwig handed down to her a box, which he represented contained all her property and an account, one item of which showed the payment of this mortgage. This action is brought to foreclose this mortgage. Held, that the plaintiff, by receiving the account of Hartwig, after the death of Weber amounted to an adoption and ratification of his acts by her as administratrix. That it is no excuse that she did not read the account and that the account should be deemed final.</p>

<p>Statute of limitations—Recoveby babbbd by the lapse op six yeabs.</p> <p>One Tuthill gave his note for $112.50 to the intestate and four others, one of whom was the plaintiff. The payment was made to Wells in 1869, and the plaintiff had notice of this fact. Wells died in 1871; this action was begun in 1885. Held, that as no trust under which Wells received this money was established, that the six years limitation, enlarged eighteen months by Wells’ death, barred the plaintiff’s claim.</p>

Appeal by defendant from a judgment entered upon a verdict by a jury rendered at the Rockland circuit and from an order of Mr. Justice Cullen denying defendant’s motion for a new trial.

<p>Evidence—Effect of admission of immaterial evidence—When its-ADMISSION COULD NOT AFFECT THE RESULT.</p> <p>The plaintiff, as assignee, brings this action to recover for the work, labor and services performed by his assignor. The answer admits the claim, but sets up a counter-claim to off-set it. On the trial there was admitted in evidence a letter containing an offer of the defendants to settle the plaintiff’s claim for $30. This evidence was objected to as immaterial. Reid, thst the admission of this evidence was error, but as the plaintiff’s claim was not denied by the answer, he was not required to prove the same, upon the trial; that therefore the admission of the letter could not possibly have affected the result and should not be permitted to reverse the judgment.</p>

<p>Appeal from a judgment rendered upon the decision of Mr. Justice Barnard upon the trial of this action before him without a jury.</p> <p>March 8, 1819, plaintiff leased to Hiram Carroll his farm for one year from April 1, 1819, with the privilege of five years at option of said Carroll, on giving written notice.</p> <p>Defendant was surety for Hiram Carroll on said lease.</p> <p>Hiram Carroll took possession of the farm under the lease, and worked it until November 8, 1881, when plaintiff sued him for a settlement, and decision was rendered therein March 15, 1883.</p> <p>This action is against the surety, Hiram Cooper, for proceeds of farm, stock, implements, not accounted for by Hiram Carroll, claiming fifteen hundred dollars ($1,500).</p> <p>Defendant’s answer is, that plaintiff, in the fall of 1881 (and soon after the suit was commenced by plaintiff against Hiram Carroll above mentioned), agreed to give William Carroll (who is a brother of Hiram) fifty dollars if he would get rid of Hiram, and he, William, to take the farm and run it.</p> <p>That William did buy off Hiram, and run the farm from that time on.</p> <p>Also, that either Hiram or William have rendered an account of all moneys that they have received.</p>

<p>1. Warehousemen—Conversion.—When notice of sabe is required— Chap. 336, Laws 1879—When demand is necessary.</p> <p>Certain property was left with the keeper of a warehouse to he stored, This property the defendant sold without notice as required by chapter 336, Laws 1879. Held, that the sale was therefore a wrongful conversion, and that when the conversion is wrongful no demand is necessary before action is brought.</p> <p>3. .Witnesses—Experts—Opinion of.</p> <p>The plaintiff acquired her knowledge of pictures in two years’ experience in picture galleries and portrait painting. Held, this experience and knowledge qualified her as an expert.</p>

<p>Action to recover damages for a forcible entry and detainer, an assault and a conversion of personal property.</p> <p>It was tried at the Rockland circuit before Justice Cullen and a jury and a verdict found for the plaintiff. From the judgment entered thereupon these defendants have appealed and urge as the principal ground of their appeal alleged errors in the charge to the jury by the trial judge.</p> <p>There was at Spring Valley, in Rockland county, a church known as the “Spring Valley Methodist Church,” owning a church building and using as a parsonage a residence leased of the Mutual Life Insurance Company. This church was a member of the Newark conference of the M. E. church, subject to its jurisdiction, and at the time in question under the direct supervision of the presiding elder, Rev. Alexander Craig. In April, 1885, this conference sent to the Spring Valley church as its pastor the plaintiff. He with his family moved into the parsonage, already partly furnished by the church, and continued to occupy it and officiate in the church up to the early part of January, 1886. The last service he preached in the church was on the 10th or 11th of January, 1886. He ceased preaching because he was suspended by the conference of which he was a member from “all ministerial services and church privileges.” He continued under suspension until the meeting of conference in April, 1886, and then was allowed to withdraw under charges. Shortly after his suspension, and on February J, 1886, plaintiff began preaching in Van Houten’s hall, in Spring Valley, and continued to do so regularly thereafter. At the time of the plaintiff’s suspension the trustees of the M. E. church were Stephen H., Burr, Abram T. Van Houten and Jackson Rose, L. Ryder,, T. F. Reed, G-. Wood, T. Jersey, J. 0. Wood and J. Swenarton. Of these Burr and Van Houten remained loyal to the church and are defendants herein. The other seven followed the deposed pastor and regularly thereafter attended his services in Van Houten’s hall. For two or three1 Sundays after the suspension of plaintiff there were no preaching services in the church. A Sunday school was held therein every morning, however. The presiding elder, by virtue of his authority, appointed Mr. W. P. Ferguson as pastor of this church, the„ first week in February. A Mr. Moore preached February 14th, and after that the new pastor. On the 14th of February, and on the succeeding' Sunday, the defendant Burr read a notice to the congregation. In pursuance of that notice an election for trustees was held March 1, 1886, at which time defendants Smith, Tenure and Onderdonk were elected such trustees. Shortly after this election, and on the 15th day of March, 1886, a notice was served upon the plaintiff requiring him to remove from the parsonage within forty-eight hours, signed by all the defendants except Fisher. Upon the lYtli of March, the defendant Fisher, under the employment and by the direction of the other defendants, entered the parsonage and removed the plaintiff and his family. When Fisher entered the house some of plaintiff’s things were already packed up and ready for removal. He refused to, go out until put out, so that, to use his own language, it would be an “ejectment.” He took that night some of his things and the balance which he refused to take were placed in storage.</p>

Appeal by Richard Webber, purchaser, from order of Dykman, J , made at Westchester special term, denying motion to be discharged from purchase. The plaintiff, who is the widow of George Dennerlein, who died on January 10, 1885, brought this action for dower in a farm of which her husband died seized, situate at Westchester. On a reference in the suit, it was found that it was impracticable to lay off a distinct parcel of premises in satisfaction of plaintiff’s dower.

<p>1. Appeals—Code Cry. Pro., § 1350—What reviewed on appeal—Improper REQUIREMENTS IN PINAL JUDGMENT CORRECTED ON APPEAL.</p> <p>The interlocutory judgment in this action dismissing the complaint as-to certain of the defendants, was modified and afiirmed on appeal to the general term. In accordance with the direction contained in “the inter locutory judgment, a reference was had for the purpose of taking and stating an account between the plaintiffs and the defendant Barnes; upon the referee’s report final judgment was entered, from which this appeal is; taken. Held, that the appeal being taken in pursuance of the provisions-of section 1350, Code of Civil Procedure, brings up for review only til» proceedings before the referee and the order confirming the same On the accounting before the referee it was found that the defenda t Barnes owed Winans and Garrett the sum of $28.792. He owned 109 shares of the capital stock of the New York Transit and Terminal Company, one of the defendants By the final judgment it was ordered th t if the defendant Barnes fails to pay witlun twenty days the $28,792 due to Garrett and Winans, that the referee shall forthwith sell the 109 shares and. apply the proceeds to discharge that indebtedness. Held, that this was an improper requirement, and judgment should be modified in that respect</p> <p>2. Same—Effect of an appeal from an interlocutory judgment.</p> <p>By appealing from an interlocutory judgment a suitor does not debar himself from all remedy for such errors as may thereafter be committed.</p>

<p>Appeal from an order sustaining a demurrer made at the Kings county special term.</p>

<p>Bills akd notes—When dub. '</p> <p>In an action brought to' recover upon a note, it appeared by the terms of the note that it was not payable until the payee was finally successful in a certain action, and the meaning of finally successful was stated to be “ when all appeals shall have been disposed of and the right to appeal has expired.” Held, that the note was not due while there was still a. possibility of a judgment which might be the subject of an appeal.</p>

<p>Appeal from a judgment entered upon the trial of the case before a jury at the Westchester circuit.</p>

The policy referred to so far as material was as follows : Life Department. No. 4380. $5,000. HOME BENEFIT ASSOCIATION. Incorporated Under New York Laws. Certificate of Membership.

<p>Appeal by defendants from a judgment rendered in favor of plaintiffs on a trial of the cause before Hon. J. F. Barnard, at a special term of this court, enjoining defendants from interfering with plaintiffs in the use of certain lands and materials with six cents damages and costs.</p> <p>On February 22, 1883, DeNoyelles and Verdin leased to plaintiffs for the term of ten years, from April 1, 1883, certain ■ premises, the boundaries of which, as plaintiffs claim, included the land, in the use of which defendants are enjoined from interfering. Before the commencement of the second year of the term the lessors were to “set off and designate ” the line of plaintiffs’ land, and granted them the exclusive right of obtaining brick materials as far north as the “Daniel DeNoyeU.es property.” Accordingly De-NoyeH.es, one of the lessors, before the commencement of the second year did set off and designate plaintiffs’ north line, and located it at the place where plaintiffs now claim it to be.</p> <p>At the time of the agreement upon the line, a stake was driven and mark made at places pointed out by De Noyelles, and, to make the line more certain or straight, a survey was made running from a dogwood bush (which is conceded by all to be in the line) on the course given in the judgment roll in partition as speciaHy directed by DeNoyelles, which proved the stake to be on the true line, but the mark on the coffer-dam built in the river in front of the lands in question was about two feet north of a continuation of the line from the bush to the stake, and a mark was accordingly made on the coffer-dam two feet further south.</p> <p>Ever since that time the plaintiffs have been in possession up to this line, stripping their bank, cutting and carrying away clay, building roads at large expense; their right, to such possession having been undisputed and assented to' by DeNoyelles.</p> <p>In one instance last year the employees of plaintiffs cut a bunch of clay six to eight feet long about three feet north, of this line. DeNoyelles the next day complained that they were over the line and again indicated where the line was, fixing it at the same place as before, and the witness Rose, in DeNoyelles’ presence, rolled a stone on the place so pointed out where it has ever since remained.</p> <p>The lessors were' owners of the land on both sides of the disputed line, and on January 29, 1887, demised to defendants certain premises, being part of the “Daniel DeNoyelles’ property” down to the line of the “Edward DeNoyelles’ property,” the latter being that which plaintiffs had leased and were in possession of and had been in possession of for several years.</p> <p>The fine of the “Daniel De Noyelles property” has been uncertain and indefinite. The premises of which plaintiffs were in possession under their lease were necessary to them in the conduct of their manufacturing business, the materials upon such premises constituting their supply for manufacturing brick and were being actually used for such purpose. On May 16, 1887, plaintiffs had upon the premises, which they claim, a planked roadway upon which to haul their materials and which was necessary to run their carts on and get clay out, and defendants went upon these premises, tore up the planks and threw them out and continued and repeated these acts for some time. At the same time defendants claimed the right to take possession of plaintiffs’ premises and to remove the materials therefrom and they forbade plaintiffs taking such materials and threatened to get men there and maintain forcible and continued possession.</p>

<p>Appeal from an order denying an application for a mandamus. The facts are sufficiently stated in the opinion.</p>

<p>Appeal from a judgment of the Dutchess county-special term, dismissing the plaintiff’s complaint, with costs.</p>

<p>1. Contract of sale—When action on contract mat be maintained THOUGH STIPULATED THAT TITLE SHOULD NOT PASS UNTIL WHOLE PRICE PAID.</p> <p>In an action brought to recover the contract price of a safe alleged to have been sold to defendants, the contract provided as follows: “It is agreed that the Marvin Safe Co. shall not relinquish its title to said safe, but shall remain the sole owner thereof until the sum agreed upon is fully paid in money, and if notes are given, until such notes are actually paid in cash ” Neld, that an action could be maintained on the contract for the price of the safe.</p> <p>2. Same.</p> <p>The retention of the title by the vendor of manufactured articles, as security for the payment of the agreed price, does not prevent such vendor sueing for and recovering the price as fixed by the contract between the parties.</p>

<p>-Bail—Surety for good behavior—How discharged—Laws 1882, chap. 410, §1461.</p> <p>The power of discharging a person who has become surety for the good behavior of one charged with disorderly conduct from such surety-ship, is vested in the magistrate who required the surety. Laws 1882, chap. 410, § 1461.</p>

<p>Vendor—Warranty.</p> <p>Where the choice is left to the vendor, and he selects and offers a specific thing as that which will suit the vendee, the vendor undertakes that it shall be fit for the particular purpose, hut this is not the rule where the purchaser chooses for himself although the purpose for which he buys is. known to the vendor.</p>

<p>1. Appeals—When a question of fact will not be reviewed by the GENERAL TERM.</p> <p>Where a question of fact has been passed upon by the lower court the determination will not be reversed, if on reading the evidence it appears that the decision might have been either way.</p> <p>3. Pleading—Answer—General denial—Defense of partnership.</p> <p>Evidence that the relation between the parties was that of partners is admissible under the general denial as it tends to show that there is no truth in the allegation that the plaintiff was an employee of the defendant.</p>

<p>Execution—Sale under—Well not vest title in purchaser when JUDGMENT SET ASIDE.</p> <p>A sale of rea'l property was made by a sheriff to satisfy the aggregate amount du>; upon three executions, and the property was hid in by the purchaser for a gross sum sufficient to cover the amount due upon the three judgments. Two of the judgments upon which the sale was made were subsequently set aside and vacated, fflld, that the sale could not become perfect so as to vest title in the purchaser.</p>

<p>Appeal from judgment entered in Cattaraugus county upon the report of a referee.</p>

<p>1. Municipal Corporations—Defects in sidewalks—What is notice OF.</p> <p>Notice to a superintendent having special charge of the streets of a city as to a defect in one of the streets is notice to the city of the fact.</p> <p>2. Same—When notice of defect in sidewalk mat be inferred.</p> <p>The notorious character of a nuisance in the streets of a city, and the lapse of time during which it has continued, may justify a jury in the finding that the city had notice of its existence.</p> <p>8. Same—Obligation to remedy defects in sidewalk.</p> <p>It is the duty of a city to remedy defects in its sidewalks within a reasonable time after notice.</p> <p>4. Same—Defects in sidewalk—Contributory negligence—Question for JURY.</p> <p>The fact that the plaintiff had room to pass safely by the defect in the sidewalk which occasioned her injuries is not of itself sufficient evidence to imperatively call for the conclusion that she was guilty of negligence in not doing so, and that, with the fact that she was not thinking of the condition of the sidewalk are but circumstances to be considered by the jury in the absence of proof of previous knowledge of it.</p> <p>8. Evidence of condition of sidewalk—What "is competent.</p> <p>It appearing that the condition of the street at the point where the plaintiff’s accident occurred was substantially the same for some time previous to the accident, evidence of other accidents attributable to that same cause and occurring during that period is competent.</p>

<p>Appeal from a judgment entered upon a decision of the Monroe equity term.</p>

<p>Appeal from a judgment of the Monroe oyer and terminer rendered upon a conviction of the defendant of the crime of murder in the second degree, and from an order denying the defendant’s motion for a new trial upon the minutes.</p>

<p>Appeal from a judgment entered upon the report of a. referee. The plaintiff presented a claim against the estate of George Kinder, which the administrators rejected, and. thereupon the same was referred, with the consent of the surrogate’s court of Niagara county. The referee supported, the claim and found due thereon the sum of $780.50. His. report was confirmed at a special term and judgment entered thereon, with costs.</p>

<p>1. Jury — In a conflict of evidence the question must be submitted-TO THE JURY.</p> <p>Where there is a conflict of testimony upon one of the issues in an action it is improper to refuse to submit the question to the jury.</p> <p>2. Insurance — Subrogation — Rights of insurer of mortgaged-property.</p> <p>Where an insurance policy is made payable to the mortgagee the insurer" upon paying the loss is entitled to be so far subrogated, and may to that extent enforce the mortgage and bond to which it is collateral.</p> <p>3. Same—What operates as release of insurer’s liability to mortgagee.</p> <p>Where in discontinuing an action for the foreclosure of a mortgage the mortgagee releases the debtor from further liability on his bond and mortgage, the insurer is thereafter released from responsibility to him upon the policy.</p>

<p>Appeal from decree of Monroe county surrogate’s court admitting will to probate.</p>

<p>Paupers—Support of—When town into which they move becomes liable. FOR SUPPORT OF—NOTICE UNDER R.EV. StAT., PART 1, CHAP. 20, TITLE 1, § 61, as amended Laws 1885, chap. 546—Limitation of action for SUPPORT OF.</p> <p>The plaintiff as superintendent of the poor of Schuyler county served a written notice on the defendant as overseer of the poor of the town of Barrington, Yates county, in which it was in substance stated that one Huff was a pauper and that before he came to Schuyler county, he had gained a residence in the town of Barrington, Yates county, and that he was at that time in town of Tyrone, and the notice concluded “ you are therefore required to provide for the relief and support of said pauper.” Within thirty days after the receipt of the above notice by the defendant, he sent by mail to the plaintiff, a written notice acknowledging the receipt of this notice, stating that Huff had never been a pauper in the writer’s, town or county. And claimed that as he was not a pauper when he moved from the town he could not hold a settlement therein under Laws of 1883 and signed it John F. Coon, overseer of the poor. This action was brought to recover the cost of maintaining said Huff, and was not commenced until more than three months after the last mentioned notice was served. Held, that under Rev. Stat., part 1, chap. 20, title 1, § 61, as-amended by Laws 1885. chap. 546, the notice of defendant was sufficient in form and substance. That the action was barred by the Statute of Limitations contained in said act.</p>

<p>Appeal from a judgment entered upon the verdict of a jury at the Cayuga circuit.</p>

<p>1. Agency—Revocation of—What is not notice of.</p> <p>For some time this defendant and his family resided upon a farm owned by him, and his father during a portion of that time resided in the same house with him and a part of the time in another house. During that period the defendant bought goods of the plaintiffs. These dealings went into account upon the plaintiffs' books, and payments made in cash and produce were from time to time credited to the defendant’s account. The purchases made on the defendant’s account were sometimes made by the defendant, and at others by the father and hired man. Subsequently the defendant left the farm and took up Ms residence elsewhere, Ms father remaining there and making purchases of the plaintiffs as formerly ' This action is for that portion of the account for the goods sold after the defendant left the farm. It is claimed by the defendant and his father that after the former had left the farm the latter bad no authority to get the goods on his account. Evidence showed that in all the transactions which produced the account the plaintiffs treated the father as agent of the defendant, and it was testified by one of the plaintiff’s that after it had accrued, one of the plaintiffs drew a note for the defendant to make the amount of the balance, and that he handed the defendant a copy of the account, to which he made no objection. Held, that knowledge on the part of the plaintiffs that the defendant had left the farm, did not necessarily require the conclusion that the plaintiffs had notice that the relation formerly existing between the defendant and his father was terminated at that time, as the defendant’s stock and utensils remained and were used on the farm apparently as before.</p> <p>3. Same—Pbbsumption as to continuance.</p> <p>Held, that for want of notice of revocation of the agency existing between the defendant and his father, the plaintiffs were at liberty to assume that it continued after as it had before the defendant ceased to reside on the farm.</p> <p>8. Same—Evidence—Res gestas.</p> <p>Held, that the transaction wMch occurred between one of the plaintiffs and the defendant’s father at the time the account was figured up and the note drawn and handed to the latter, was competent as evidence, being part of the res gestee.</p>

<p>1. Insolvent—Conveyance by—What necessary to make it good as AGAINST CREDITORS. |</p> <p>A conveyance made by an insolvent cannot be upheld as against his creditors, unless it was made for a good and sufficient consideration.</p> <p>2. Same—Bona fide purchaser—What constitutes one.</p> <p>A party urging that'he is a bona fde purchaser entitled to hold notwithstanding a prior equity, must show actual payment or performance before notice; an unexecuted agreement to pay is not enough.</p> <p>3. Same—Insolvent—Conveyance by—position of grantee having paid PART OF CONSIDERATION BEFORE NOTICE OF PRIOR EQUITY.</p> <p>Where a part of the consideration has been paid before notice, the purchaser may be adjudged to have a lien upon the property to the extent of his payment, with interest, but he acquires no further right.</p>

<p>Defaults—Right of party in default who has appeared, to notice OF ALL SUBSEQUENT PROCEEDINGS.</p> <p>The defendant Moeschler appeared but failed to put in any answer. The plaintiff applied on notice for judgment and moved for an order of reference, and a referee was appointed to take a mutual account. No notice of the proceedings before the referee and the entry of judgment upon his report was given to the defendant Moeschler. Held, the proceedings before the referee as well as the entry of judgment were irregular, for the reason that no notice of the same was given to the defendant Moeschler as required by the rule and practice of the court. When a defendant has appeared in an action he is eptitled to notice of all subsequent proceedings had therein which in any respect affect his rights and interests.</p>

<p>1. Insurance—Assignment of policy—Need not be in writing to vest TITLE.</p> <p>It is not necessary in order to vest the title to a policy of insurance in the assignee of an insured, that the assignment should he in writing, hut an unqualified delivery is sufficient for that purpose.</p> <p>2. Bond—Liability op joint makers as between themselves.</p> <p>To enable him to start in business a man with his father executed a bond conditioned for the payment of a sum of money and secured it by mortgage made by the father and mother on their farm, upon which a loan of the money was obtained. Evidence showed that the same was a gift from the father to the son. Held, that the money having been given to him by the father, his relation was that of surety on the bond, and for his protection the primary charge as between him and his father was upon the land through the mortgage, and that this being sufficient to pay the amount, his liability on the bond did not increase his indebtedness.</p> <p>8. Evidence—Res gesta:.</p> <p>Where the question at issue is the ownership of a policy of insurance, evidence of what was said by the alleged owner on parting with it to another is competent as part of the res gestee.</p> <p>4. Same—What is not incompetent under Code Civ. Pro., § 829.</p> <p>Testimony given in a special proceeding in behalf of administrators who are parties, as to conversations had with the intestate are not incompetent under Code Civ. Pro., § 829, and this, although the witness was as administrator a party to the proceeding.</p>

<p>Judgment—Can only be cobbected by an appeal ob motion in the action.</p> <p>Where a court having jurisdiction of the subject matter, and the parties pronounce judgment upon insufficient or illegal evidence, or mistake the evidence or the law, or irregularity in procedure occurs, the only remedy of any person aggrieved by the judgment is by an appeal therefrom, or by a motion in the action in which it was rendered.</p>

Wortman, as. executor of Thomas Smith, deceased, and permitting his residuary legatees to-file objections as if no such decree had been entered

<p>Negligence—Duty of city to keep sidewalk free of ice.</p>

<p>Motion for reargument.</p>

<p>Contract—Construction op.</p>

<p>Appeal from a judgment in favor of defendant entered upon the verdict of a jury at the Westchester county circuit and from an order denying a motion for a new trial made on the judges’ minutes.</p>

<p>Appeal from an order made at special term denying a motion to change place of trial from Queens to Onondaga county.</p>

<p>Appeal from a judgment in favor of plaintiff, in an action tried at the Westchester county special term.</p>

<p>Negligence—Liability oe municipal corporation eor slippery sidewalk.</p>

<p>Appeal from a judgment^ in favor of plaintiff, entered upon a verdict rendered by a jury, at the Kings county circuit, and from an order denying a motion for a new trial.</p>

<p>Appeal from a judgment entered in favor of the plaintiff on the report of a referee.</p>

<p>Appeal from a judgment in favor of defendant rendered at the Kings county special term.</p>

<p>Appeal from a judgment in favor of plaintiff, entered in the clerk’s office of' Kings county, upon the report of a referee.</p>

<p>Contbact—Value of labob—Rule as to value of mason woek.</p>

<p>This is an appeal from an order made at special term held in Orange county on the 16th day of July, 1887, vacating and setting aside a judgment taken by default in favor of appellant on the 9th day of June, 1887, for the sum of $8,805.66.</p>

<p>Motion for reargument</p>

<p>Mortgage—Foreclosure—Defence.</p>

<p>Nuisance—Injunction.</p>

<p>Consolidation op actions—When discretionary.</p>

<p>Insurance (fire).</p>

<p>Mortgage Foreclosure—Parties.</p>

<p>Corporation—Employment—Legality of contract.</p>

<p>Surplus moneys.</p>

<p>Landlord and tenant—Verbal agreement to pay rent.</p>

<p>Will—Probate op—Insufficiency of proof to establish undue influence.</p>

<p>Husband and wife—Conveyance..</p>

<p>Specific performance.</p>