Volume 120 — New York Reports

<p>Appeal from an order of the General Term of the Supreme Court in the first judicial department, made June 18, 1881, reversing a judgment in favor of plaintiff rendered upon the decision of the court on trial at Special Term.</p> <p>The nature of the action and the facts, so far as material, are set forth in the opinion.</p> <p>There are no exceptions in the case, and so no question of law was presented to the General Term. (St. John v. A. M. L. Ins. Co., 2 Duer, 419; Cowing v. Altman, 71 N. Y. 435; Gormerly v. McGlynn, 84 id. 284; Nobis v. Pollock, 53 Hun, 441, 442; Code Civ. Pro. § 992; Briggs v. Waldron, 83 N. Y. 582, 586; Todd v. Nelson, 109 id. 316, 322, 323; Ward v. Craig, 87 id. 550, 557; Wheeler v. Billings, 38 id. 263; Newell v. Doty, 33 id. 83.) The order of reversal does not state that it was made upon questions of fact, and it must, therefore, be assumed to have been made upon questions of law only, and upon familiar rules must be sustained by some valid exception taken upon the trial. (Day v. Town of New Lots, 107 N. Y. 148, 153; E. C. F. Co. v. Hersee, 103 id. 25, 28 ; Todd v. Nelson, 109 id. 316, 322; West v. Van Tuyl, 28 N. Y. S. R. 549 ; Talbnadge v. Whitman, 11 Hun, 367; Dainese v. Allen, 4 J. & S. 98.) The General Term erred in disregarding and ignoring the finding that the assignment was made with intent to hinder, delay and defraud creditors. (Village of Palmyra v. Wynkoop, 23 N. Y. S. R. 824; Code. Civ. Pro. §§ 1010, 1022; Merritt v. Class, 12 Johns. 102; Zabriskie v. Smith, 11 N. Y. 480; Ingersoll v. Bostwick, 22 id. 425; Howland v. Howland, 20 Hun, 472; Howell v. Mills, 56 N. Y. 226, 228.) The finding of intent to defraud is sustained even by the portion of the evidence which the defendant chose to print. (Ball v. Loomis, 29 N. Y. 412: McIlhargy v. Chambers, 27 N. Y. S. R. 921, 925 ; Cowing v. Altman, 71 N. Y. 435; Columb v. Caldwell, 18 id. 484; Cobb v. Titus, 10 id. 198; Ely v. Clute, 19 Hun, 35 ; Wilson v. Robertson, 21 N. Y. 587.) As it does not appear by the printed case that all the evidence is contained in it, the conclusive presumption is, that there was sufficient evidence to sustain the finding of fraudulent intent. (Grant v. City of Brooklyn, 22 N. Y. S. R. 713; Porter v. Smith, 35 Hun, 118; 107 N. Y. 531; Howland v. Howland, 20 Hun, 472.) The General Term order does not purport to reverse for error of fact, and the facts found must be taken as true. (Code, § 1338; Prosser v. F. N. Bank, 13 N. E. Rep. 287; Billings v. Russell, 101 N. Y. 226; Day v. Town of New Lot 107 id. 148; Lewis v. Barton, 106 id. 70, 73.)</p> <p>(Richadson v. Thurber, 104 N. Y. 606.) The assignment was properly executed and accepted by the assignor. The fact that the assignment was not signed by all the assignors at the same moment does not avoid the assignment, as the spirit and the intent of the statute was complied with, even though all the parties who executed and acknowledged the assignment did not do so simultaneously. (L. & C. Bank v. Talcott, 19 N. Y. 146; Townsend v. Stearns, 32 id. 209; Schultz v. Hoagland, 85 id. 464; Jones v. H. Ins. Co., 10 N. Y. S. R. 120; Scott v. Mills, 35 Hun, 263; 110 N. Y. 376; McIlharghy v. Chambers, 117 id. 532.) The claim of the appellant that the proposed findings are not properly in the case is untenable. (Jaycox v. Cameron, 49 N. Y. 645 ; Ainley v. M. R. R. Co., 47 Hun, 206; Lifler v. Field, 47 N. Y. 407; Rogers v. Wheeler, 52 id. 263; Smith v. G. F. Ins. Co., 62 id. 85; Mandeville v. Marvin, 30 Hun, 282, 288.) The claim of the plaintiff and appellant that, as he has alleged in the complaint, the assignment was made with the intent to hinder, delay and defraud creditors, this must be taken to be true, and the plaintiff was not called upon to prove it, is also untenable, as the defendants’ denial upon information and belief is sufficient and proper. (Bennett v. L. M. Co., 110 N. Y. 150 ; R. G. Bank v. Inman, 51 Hun, 57; Brotherton v. Downey, 21 id. 426; F. N. Bank v. Leland, 50 N. Y. 673; Ainley v. M. R. Co., 74 Hun, 206; McKnight v. Devlin, 52 N. Y. 399; Fitch v. Russell, 48 id. 672; Osgood v. Toole, 60 id: 475 ; Johnson v. Hathorn, 4 Keyes, 126; Launsberry v. Purdy, 18 N. Y. 515; McCormack v. Pickering, 4 id. 276; L. O. A. & N. Y. R. R. Co. v. Marvine, 18 id. 585; Tyng v. C. W. Co., 58 id. 308.) The fact that the court below finds as a finding of fact “ that the assignment was made with the intent to hinder, delay and defraud creditors, including plaintiff,” is not conclusive, as the court expressly says that it is so because it does not prefer the employes. (Nicholls v. Wentworth, 100 N. Y. 455.) The provision- in the assignment specifying that the assignee shall pay the creditors “ ratably and in proportion to their respective demands, without any preference or privity in such distribution,” does not in terms infer or raise a legal presumption that the assignors intended to defraud the employes or the general creditors. (Richard v. Thurber, 104 N. Y. 606 ; In re Lewis, 81 id. 421; Crook v. Rindskopff, 105 id. 476; R. W. Co. v. Fielding, 101 id. 510.) The finding of fact that Ennnens and Roach were in possession of the assigned property up to the tenth day of August, though the assignment was executed on the seventh day of August, does not avoid the assignment. (Rernnie v. Bean, 24 Hun, 123; McBlane v. Spellman, 6 Civ. Pro. Rep. 403; Smith v. Boyd, 18 Wkly. Dig. 461; Deuzer v. Munday, 5 Robt. 639.) Plaintiff’s conclusion that the assignment is also fraudulent and void, because intended to include the firm and individual property in a lump sum for the equal benefit of the firm and individual creditors, is untenable. (Grook v. Rindskopff, 105 N. Y. 476; R. W. Co. v. Fielding, 10 id. 510; F. N. Bank v. Halstead, 20 Abb. [N. C.] 155; Eyre v. Beebe, 28 Hun, 333 ; Friend v. Michaelis, 15 Abb. [N. C.] 354; Dimon v. Hazard, 32 N. Y. 65 ; Saunders v. Reilly, 105 id. 12; Kirby v. Schoonmaker, 3 Barb. Ch. 46; Collomb v. Caldwell, 16 N. Y. 484; Turner v. Jaycox, 40 id. 470 Bogamt v. Haight, 9 Paige, 297; Hurlbert v. Dean, 2 Keyes, 97; Seymore v. Wilcox, 14 N. Y. 567; Hunt v. Johnson, 44 id. 27; Barney v. Griffin, 2 id. 365 ; Goodrich v. Downs, 6 Hill, 438; Becker v. Leonard, 42 Hun, 221.)</p>

The action was brought to enforce specific performance on the part of the defendant of certain covenants in a lease executed by it to Robert and David Magill. On January 11, 1864, the defendant leased to said Magills a lot of land on Thirtieth street in Mew York city, for the term of twenty years and three months.

The nature of the action and the facts are sufficiently stated in the opinion. The court below erred in its interpretation ,of the statute. (Cushman v. U. S. L. Ins. Co., 70 N. Y. 72; Fitch v. A. P. L. Ins. Co., 59 id. 557.) It was error in the court below to find that the insured received a wound, hurt or serious bodily injury within the meaning of the contract. (Ins.

On June 22, 1881, an agreement under seal was entered into by the parties, and after reciting that the plaintiffs had succeeded to the business of manufacturing gloves at Paris, and selling them at New York, before then carried on by D. Jugla, and that the defendant had acted as agent for him and them in the city of New York, and was desirous of purchasing such business in that city, the agreement proceeded to the effect that the plaintiffs thereby sold to the defendant the…

The nature of the action and the facts are sufficiently stated in the opinion. The discretion vested in courts of equity to refuse to compel specific performance is not a personal or arbitrary discretion, but is limited to cases where the relief sought would, under the circumstances, be inequitable. (Trustees, etc., v. Thacher, 87 N. Y. 311; Trustees, etc., v. Leech, 70 id. 440.) As no notice of change of route was made to plaintiffs, the defendant cannot profit by it here.

<p>In an action to recover for goods sold, the complaint alleged that the defendants, at the time of «the sale, were copartners. Defendant P. denied the alleged copartnership, averring that the firm was dissolved prior to the sale; that plaintiffs had notice of such dissolution, and that the credit was given to defendant F. The latter did not answer. P. made written demand for “a hill of items of matters set forth in the complaint, * * * as the foundation of the plaintiffs’ claim against the defendants.” The demand not having been complied with, P. objected on trial to proof of the sale and delivery of the goods; this was overruled and the evidence received. Held, no error.</p> <p>The provisions of the Code of Civil Procedure (§ 531), requiring the party . alleging an account in his pleadings to deliver to the adverse party, within ten days after a written demand thereof, a copy of the account, and declaring that "if he fails to do so he is precluded from giving evidence of the account,” should be executed by means of an order made on application preliminarily to the trial, or to the disposition of the question of the admissibility of the evidence offered, so that the purpose and mandate of the statute may be effectuated without surprise or unnecessary prejudice to any of the parties.</p>

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

The nature of the action and the facts are sufficiently stated in the opinion. The bond in suit was merely a guaranty of the honesty and the integrity of the agent and not a guaranty of the performance by the agent of a contract to repay to the principal at the end of the year the sum of $2,000.

This action was brought to recover a balance alleged to be due upon a contract between the parties, the substance of which, as well as the material facts, are stated in the opinion. Defendant, by insisting upon going on with the contract, waived any general defense arising out of the former fault.

The nature of the action and the facts are sufficiently stated in the opinion. The court erred in receiving in evidence the judgment of the court in Idaho, and in directing a verdict for the plaintiff based solely upon that judgment.

The nature of the action and the facts are sufficiently stated in the opinion. An action for specific performance cannot be maintained, when at the time the eon-tract is to be performed there are existing liens or encumbrances on the premises to be conveyed; which are not provided for in the contract.

The nature of the action and the facts are sufficiently stated in the opinion. The building was “ unoccupied,” within the meaning of the policy, and the refusal of the court to nonsuit and to charge the jury that it was “ unoccupied ” was error. (Blodgett on Fire Ins. § 29; Keith v. L. Ins. Co., 92 Mass. 228; Paine v. A. Ins. Co., 5 T. & C. 619; Herrman v. A. Ins. Co., 85 N. Y. 762 ; More v. P. Ins. Co., 34 Alb. L. J. 369; Herrman v. M. Ins.

This is an action upon an insurance policy issued by the defendant on the 10th of February, 1883, whereby it insured the plaintiff for the period of one year from that day “ against loss or damage by fire to an amount not exceeding $2,000, on Ids boiler, steam engine and connections, machines, machinery, shafting, belting, pulleys, hangers, tubs, tanks, tables, tools, vats and all machinery and apparatus used in the business of manufacturing leather anjl morocco; all…

The nature of the action and the facts are sufficiently stated in the opinion. The court below erred in limiting the plaintiff’s recovery to the extent of the expenses of searching the title.

The nature of the action and the facts are sufficiently stated in the opinion. A cause of action exists against the defendant and in favor of plaintiff. (Morrow v. Peyton, 8 Leigh, 64, 65; 3 Bacon’s Ab. 30, 31; Lacey v. Davis, 5 Redf. 301; Bruen v. Gillett, 115 N. Y. 10; Adair v. Brimmer, 74 id. 541; Ormeston v. Hackett, 84 id. 339; Croft v. Williams, 34 id. 384; Weetjen v. Vibbard, 5 Hun, 267; Suderland v. Brush, 7 Johns. Ch. 17; Peters.

On the 22d of January, 1884, the defendant Bliss entered into a contract with Sidney DeKay, husband of the plaintiff, by which he agreed to sell to him certain premises and buildings thereon situate on the corner of Broadway and Fifty-seventh street in the city of New York for the sum of $810,000 payable as follows: $5,000 on the execution of the contract; $35,000 on the delivery of the deed ; $250,000 by conveyance of certain premises on the corner of Broadway and Greenwich…

Appeal by the city of Brooklyn from an order of the General Term of the City Court of Brooklyn, made August 25,1887, which reversed a judgment entered upon an order dismissing the complaint on trial, and which granted a new trial. Also appeal by the plaintiff from an order of the General Term affirming a like judgment in favor of the defendant Hopes. The nature of the action and the material facts are stated in the opinion.

<p>Appeal from judgment of the General Term of the Supreme Court, in the second judicial department, entered upon an order made December 13,1886, which affirmed a judgment in favor of plaintiff entered upon a verdict directed by the court, and affirmed an order denying a motion for a new trial.</p> <p>This action was begun December 7,1881, by Henry Sanger to recover possession of 259 acres of land in the town of Babylon (formerly Himtington), with damages for the wrongful withholding thereof from ¡November 15, 1875.</p> <p>The plaintiff alleged that he was the owner in fee and entitled to the immediate possession of the land. The defendant, in his answer, denied all of the allegations in the complaint, except the allegation that he was in possession, and alleged “ that he has for more than twenty years last past been in the peaceable, undisturbed and lawful possession of said premises; and that he is the true, lawful and sole owner of said premises, and has been for more than twenty years last past.”</p> <p>The action was first tried at the Suffolk. Circuit in April, 1882, when the defendant had a verdict, but the plaintiff paid the costs and took a new' trial under the statute, which was had at the October Circuit, 1883, when the defendant again recovered a verdict, on which a judgment was entered, which was reversed and a new trial granted by the General Term of the second department in March, 1885. (35 Hun, 669.) The case was again tried at the February Circuit, 1886, at which the jury was directed to find that the plaintiff had been the owner of the fee of the land in dispute since June 21, 1871, and entitled to the possession thereof, and the damages, by agreement, were assessed at $50. A motion for a new trial on the minutes was denied and a judgment entered. On January 15, 1886, the plaintiff • died; the present plaintiffs succeeded to his interest and were substituted as parties plaintiff in his stead.</p> <p>The defendant showed title in himself, or at least he was entitled to have the cause submitted to the jury upon that question, under appropriate instructions from the court. (Code Civ. Pro. § 370 ; Fiero on Spec. Act. 29., 33, 34 ; People v. Van Rensselaer, 9 N. Y. 329; 3 Wait’s Act. & Def. 29, 30; Peck v. Newton. 46 Barb. 173, 175 ; Moore v. Spellman, 5 Den. 225; York v. Allen, 30 N. Y. 104; Jackson v. Meyers, 3 Johns. 388; Monroe v. Merchant, 28 N. Y. 9, 44; Thompson v. Burnhams, 61 id. 52.) The plaintiff showed no title in himself to the premises claimed; he must recover, if at all, on the strength of his own title. (Code Civ. Pro. § 368; 3 Washb. on Real Prop. 194, 198; Trustees, etc., v. M. B. C. Co., 116 N. Y. 1; 1 Washb. on Real Prop. 719.) The three deeds under which plaintiffs claim are all contrary to the following statutes and are void. (3 B. S. 2516, § 6; Id. 2196, § 147; Peppers. Haight, 20 Barb. 430, 438; Dawley v. Brown, 79 N. Y. 390; Crary v. Goodman, 22 id. 170, 176; Towle v. Remsen, 70 id. 303, 317; Christie v. Gage, 71 id. 189; Howard v. Howard, 17 Barb. 663; Sands v. Hughes, 53 N. Y. 287; Finlay v. Cook, 54 Barb. 27.) The plaintiffs are not entitled to maintain this action, because neither they nor their grantor were seized or possessed of the premises within twenty years next before its commencement. (Code Civ. Pro. § 365.)</p> <p>The plaintiff established a good and continuous chain of title. (Trustees, etc., v. M. B. O. Co., 116 N. Y. 1; Robins v. Ackerly, 91 id. 98; Jackson v. McGall, 10 Johns. 377 ; Jackson v. Lamb, 7 Cow. 431; Russell v. Schuyler, 22 Wend. 277; White v. Loring, 24 Pick. 319, 322; Melmin v. Comrs., 17 id. 255, 262; Mayor, etc., v. Horner, Cowp. 102, 112.) The Hartt lot was separate and distinct from the Conklin lot, and the fact that the conveyance to the defendant of the entire tract was made in one piece cannot destroy this distinction; adverse possession of the Hartt lot would have had to be particularly proved. (Bailey v. Carleton, 12 N. H. 9; Woods v. M. C., etc., Co., 84 Ala. 560; Thompson v. Burhans, 61 N. Y. 54.) There is no proof of any such use of the premises for fuel as is within the meaning of the statute. (Miller v. L. L. R. R. Co., 71 N. Y. 383; Machin v. Geortner, 14 Wend. 239 ; Thompson v. Burhans, 61 N. Y. 54, 69; Jackson v. Woodruff, 1 Cow. 276; 79 N. Y. 93; Wheeler v. Spinola, 54 id. 377; Miller v. Downing, 54 id. 631; Price v. Brown, 101 id. 669; Bliss v. Johnson, 94 id. 235.) There was, furthermore, an entire failure of proof of continued occupation of the land in question for a period of twenty years. (Bliss v. Johnson, 94 N. Y. 235, 242; Sedg. & Wait on Title, § 738; Code Civ. Pro. § 369; Miller v. Platt, 5 Duer, 272; Cleveland v. Crawford, 7 Hun, 616, 620; Finley v. Cook, 54 Barb. 9 ; Trustees, etc., v. Kirk, 68 N. Y. 459.) The court correctly refused to submit to the jury whether the deed from Wood to Sanger was not void, for the reason that the premises described therein were, at the date thereof, in the actual possession of the defendant, he claiming them under title adverse to that of the plaintiff. (Code Civ. Pro. § 500; Grary v. Goodman, 22 N. Y. 170; Sounds v. Hughes, 53 id. 287-289 ; Dawley v. Brown, 79 id. 390.) It is well established that a direction by a judge to the jury, to find a verdict for one of the parties, is always proper, when a contrary verdict would be set aside upon the ground that it was against evidence. (Dwight v. G. L. Ins. Co., 103 N. Y. 341.)</p>

This was an action to recover damages for an assault upon plaintiff by a porter on a sleeping-car in one of defendant’s, trains.

This was an action brought by the assignee of two of the members of the firm of John M. French & Co., for the purpose of compelling an accounting by the defendant Daniel W. Powers. The facts are sufficiently stated in the opinion. There was no foreclosure, for the reason that the defendant was himself the “ purchaser” of the property at the sale and advanced no new consideration.

Aside from certain facts alleged by way of inducement, the substantial allegations of the complaint herein are that from the 8th of November, 1882, until in August, 1884, the defend* ant Kneeland was a stockholder, director and the president of the plaintiff, a railroad corporation, organized under the laws of this state; that as president he was not called upon to perform any duties connected with the active management or operation of the road, and there was no salary…

This action was brought upon a promissory note for $2,500 made by the defendant, payable to its own order. Held: at which the following resolution was unanimously adopted: “ That the president be and he is authorized to use the credit of the company by issuing and negotiating its notes, or otherwise, for paying the salary of said president; said notes to be signed by the president and countersigned by the treasurer in the usual way and form,…

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

The action is for false representations and deceit in the sale to plaintiff of certain mining stocks of the Little Pittsburg Consolidated Mining Company, and was brought against the defendant Moffat and Jerome B. Chaffee as copartners. The material facts are stated in the opinion.

Appeal'from judgment of the General Term of the Supreme Court in the second judicial department entered upon an order made June 8, 188!, which affirmed a judgment in favor of plaintiff entered upon a verdict. This action was brought to recover damages for injuries alleged to have been caused by defendant’s negligence.

This was an action for the specific performance of a contract for the purchase of certain premises in the city of New York. The facts are sufficiently stated in the opinion. The statute is mandatory. “ Notice of a postponement” of sale cannot be given after the time to which the postponement is had is past. Such notice cannot relate back to the date of the postponement. (Code Civ. Pro. § 1618; Bicknell v. Byrnes, 23 How.

<p>While a railroad company is not an insurer of the safety of its passengers, it is hound to use a high degree of skill and vigilance to guard against, accidents. This vigilance is to be exercised in seeing that its road and the appliances used in operating it are and remain in good condition, and free from defects. A latent defect which will relieve it from liability is such only as no reasonable degree of skill and foresight could guard against or discover.</p> <p>The view which a carrier of passengers may have of what is or is not essential, by way of inspection of its road and appliances, is not necessarily conclusive, although entitled to consideration, upon the inquiry as to whether the system is adequate to the requirement of vigilance.</p> <p>It seems the same degree of care and watchfulness are not alike requisite as to all of the various portions of the machinery and appliances.</p> <p>The question as to what is the requirement of duty in regard to frequency of examination is dependent upon the liability to impairment, and the consequences which may be apprehended as the result of defective condition. Whether the system and the manner of its execution are all that may be required of the carrier cannot be measured by any rule of law to be-applied by the court, but ordinarily must, in view of the circumstances appearing by the evidence, be one of fact.</p> <p>In an action to recover damages for injuries received by plaintiff while a, passenger on one of defendant’s trains, it appeared that the engine broke loose from the train, the speed of which was suddenly slacked by operation of the air brakes, and plaintiff was struck in the eye by the end of the bell rope, which was attached to the engine and was rapidly drawn through the cars. Plaintiff proved that the severance was caused by the breaking of the spindle of the draw-bar on the forward end of the car next to the engine; that this spindle was an iron rod an inch and five-eighths in diameter, and at the point where it broke there was a, flaw three-fourths of an inch in depth. Defendant proved that the spindle, when on the car, was not accessible to observation or inspection, and gave evidence tending to prove that for the purpose of an examination it was necessary to put the car in the shop and take out the draw-bar, which it was not customary to do frequently; that the spindle and draw-heads of the bar had been renewed two years before; that they were made of the best wrought iron, and the vibration and strain was not such when the car was in use as. to require frequent examinations;, that such a spindle had never been known to break by use, and that, the period of availability of a car for use is ordinarily twenty-five years. The court submitted to the jury the question whether defendant had failed to perform its duty in regard to inspecting the draw-bar so as to-ascertain whether it was, or remained, in suitable condition for use.. Held, no error.</p>

The action was for damages to plaintiff’s property caused by the construction and operation of the elevated railroad in the city of Eew York. Plaintiff did not claim to own the soil of the street, but only an easement therein as abutting owner. The facts are sufficiently stated in the opinion.

The facts are sufficiently stated in the opinion. There can be no recovery in this case against the defendant, since the act of Booth was unauthorized by it, was directly contrary to his instructions and was not ratified by the defendant.

<p>When a physician, having a claim for professional services, accepts a sum paid to him in full satisfaction thereof, and gives a receipt to that effect, he is not, in the absence of fraud or mistake, entitled to recover more upon evidence that the services were, in fact, worth more than the sum received.</p> <p>The payment is effectual, although made by one acting for the patient, but who had no authority, at the time to make it.</p> <p>If subsequent ratification is essential, the fact that the patient asserts the payment and seeks to avail himself of the receipt as a defense in art action to recover for the services is sufficient.</p>

This was an action by one riparian owner against another to recover one-half the expense of rebuilding a dam that furnished water to both. On the 13th of May, 1835, one Hoadiah Moore owned a water privilege on the Big Ohazy river near the village of Champlain in the county of Clinton, and immediately below, on the same side of the river, was another water privilege belonging to Pliny and Amasa C. Moore.

On May 1, 1886, the defendants McMullin and Kahn entered into an agreement, by which McMullin agreed to furnish the materials and perform certain work for Kahn on •his house in the city of Mew York, to be completed June ■8,-1886, for which the latter agreed to pay him $900 in four ■installments, three of them, $200, $250 and $250, at certain •specified stages of the work, and ’the residue, $200, on its •completion.

This action was brought to recover $500 claimed to be due on the sale, of an invention by plaintiff to defendant. The facts are sufficiently stated in the opinion. The complaint states facts sufficient to constitute a cause of action. (2 Kent’s Comm. 366; Palmer v. De Witt, 4Y N. Y. 532, 53Y, 538; 2 Wait’s Act. & Def. 243; 50 How. Pr. 194; Tabor v. Hoffman, 41 Hun, 5 ; Harman, v. Barnes, 26 How.

<p>Appeal from judgment of the General Term of' the Supreme Court in the fourth judicial department, entered upon an order made January 11, 1887, which affirmed a judgment in favor of defendants entered upon a decision of the court on trial at Special Term.</p> <p>The nature of the action and the facts are sufficiently stated in the opinion.</p> <p>The redemption of land, sold under execution, is a ministerial act, and may be made at any place, in or out of the county, where the land is situated, if made before the last day of the fifteen months; and may be made on Sunday or any other day within the fifteen months. If the last day of the fifteen months happens on Sunday, the redemption may be made on that day, if the sheriff is at his office, and accepts the tender. (Strong v. Elliott, 8 Cow. 27; Sayles v. Smith, 12 Wend. 57 ; Penal Code, §§ 250, 259, 260, 261, 262, 263, 264, 265, 266; People v. Luther, 1 Wend. 43; 2 Cow. 518, 605 ; Ex parte Dodge, 7 Cow. 147; 8 id. 27; 12 Johns. 27; 1 Cow. 85; Rice v. Davis, 7 Lans. 393; 1 R. S. 676, § 71; Boynton v. Page, 13 Wend. 425, 429; Maxon v. Annos, 1 Den. 204-206; Miller v. Roessler, 4 E. D. Smith, 234; Sherman v. Sherman, 27 Penn. St. 90; Marvin v. Marvin, 75 N. Y. 240; 3 R. S. 475, §§ 42, 43.)</p> <p>The respondents insist that the “ twenty-fom’ hours ” contemplated by the statute are twenty-four business hours, and that by the general and universal custom of the country, in contemplation of which it must be presumed the statute was passed, Sunday is not a day of business, and that, therefore, the running of statutory time was suspended during the twenty-four hours of November first. (Thayer v. Felt, 4 Pick. 354; People v. Luther, 1 Wend. 42; Salter v. Burts, 20 id. 205; Howard v. Ives, 1 Hill, 263; Anonymous, 2 id. 375; Whipple v. Williams, 4 How. Pr. 28; Van Vechten v. Paddock, 12 Johns. 178; Vanderwerker v. People, 5 Wend. 530; Campbell v. I. L. A. Society, 4 Bosw. 299; A. B. & C. Co. v. Connor, 103 N. Y. 502, 509; Edmundson v. Wragg, 49 Am. Rep. 509 ; Cressey v. Parks, 46 id. 406, 409; Barnes v. Eddy, 12 R. I. 25; Shaw v. Williams, 28 Alb. L. J. 68, 69; Ormsby v. City of Louisville, 20 Am. Law Reg. 269; Avery v. Stewart, 2 Conn. 69; Barrett v. Allen, 10 Ohio, 426; Hammond v. A. M. Ins. Co., 10 Gray, 306; Baxley v. Burnett, 33 Ga. 146; Hunts v. Temple, 48 Mo. 711; Swann v. Brown, 3 Burr. 1599 ; 1 W. Black. 496, 526; Smith v. Wilcox, 24 N. Y. 355; Story v. Elliott, 8 Cow. 27; Sternes Appeal, 64 Penn. St. 447; Dalameter v. Miller, 1 Cow. 75; Brackett v. Edgerton, 14 Minn. 173; C. Co. v. Bradley, 4 Cranch, 193; Chrisman v. Tuttle, 59 Ind. 155; Gould v. Spencer, 5 Paige, 541; A. Ins. Co. v. Hicks, 7 Abb. Pr. 204; Peck v. Covell, 16 Mich. 9; Bland v. Whitfield, 1 Jones’ Law, 122; Pelice v. Hill, 9 Porter, 151; Cock v. Bunn, 6 Johns. 325 ; Borst v. Griffin, 5 Wend. 85 ; Angell on Limitations [6th ed.], 48; 2 Hill, 377; Bob v. Moffat, 3 Johns. 257; Field v. Park, 20 id. 140; Vanderfool v. Wright, 1 Cow. 209; Frost v. Hull, 4 N. H. 153 ; Shaw v. Dodge, 5 id. 462; Clapp v. Hale, 112 Mass. 368; Denis v. Sharman, 31 Ga. 607; Bumbgardner v. Taylor, 28 Ala. 687; Ladd v. Rogers, 11 Allen, 209 ; Finn v. Donahue, 35 Conn. 216; Dodson v. Harris, 10 Ala. 586 ; Meader v. White, 66 Me. 90; Tucker v. Mowrey, 12 Mich. 378; Bosworth v. Swansey, 10 Metc. 363; Jones v. Andover, 10 Allen, 18; Holcomb v. Village of Danby, 51 Vt. 428; Const. of N. Y. art. 4, § 9; Luedermiller v. People, 33 Barb. 569.)</p>

<p>Where in an action for malicious prosecution the facts are undisputed and but one inference can be drawn from them, the question of probable cause is one of law.</p> <p>Where the defendant in such an action had secured a warrant for the arrest of the plaintiff for larceny, held, the fact that the defendant was advised by his counsel that certain acts of plaintiff constituted a larceny, while proper upon the question of malice, did not form the basis for a finding of fact that he had probable cause to believe the plaintiff guilty. Probable cause may be founded on misinformation as to facts but not as to law.</p> <p>It seems, the question as to whether a person has probable cause to make a criminal accusation against another is not necessarily dependent upon the guilt or innocence of the accused, or upon the fact that the crime has been committed; if the apparent facts are such that a discreet and prudent person would be led to the belief that a crime has been committed and by the accused,, he will be justified, although he was deceived and the party accused was innocent.</p> <p>In an action for malicious prosecution, it appeared that defendant furnished plaintiff a quantity of rugs under an agreement that when called upon to do so by defendant he would return them in good order, or the cash, or a properly signed lease for them. Defendant subsequently put in the hands of his attorney a statement of the mgs he claimed plaintiff had not returned or accounted for. It was agreed between the parties that defendant should receive in full settlement a specified sum of money and thirteen rugs. Plaintiff paid the money and promised to deliver the rugs in a few days. Before such payment, defendant, accompanied by his attorney, had gone before a magistrate and made complaint, in writing, that plaintiff had appropriated to his own use a rug belonging to defendant, it being one of those embraced in the statement. A warrant was issued, but not served until after the tender to defendant of thirteen mgs which plaintiff claimed were such as the agreement called for, but which defendant claimed was not. Held, the facts did not permit an inference that defendant had probable cause to believe plaintiff guilty of larceny; and that the court did not err in so instructing the jury.</p>

<p>The act of 1870 (Chap. 821, Laws of 1870), “providing for the appraisal of canal claims against the state,” does not confer a new jurisdiction to hear claims against the state for the taking of a fee in lands or for the appropriation of a continuous and permanent easement therein for canal purposes; it was simply intended to supplement and extend existing jurisdiction by adding authority to hear and determine new cases for which existing legislation afforded no remedy.</p> <p>It seems, the cases that fall generally within said act are for damages aris ing from the canals themselves, their use and mangement, or the negligence and conduct of officials in matters relating to and connected with the canals.</p> <p>A claim arising out of the permanent appropriation by the state of lands or an easement therein, which will presumably continue while the canals exist, is controlled by the Revised Statutes (1 R. S. 225, §§ 46-48) or by the act of 1830 (Chap. 293, Laws of 1880).</p> <p>Plaintiff claimed damages for injuries arising from the overflowing of Ms lands caused by a permanent dam, constructed under the act of 1864 (Chap. 151, Laws of 1864). The dam was completed August 81, 1886, and the claim presented March 29, 1871. Held, that the overflow of plaintiff’s lands was the taking of 'a permanent easement by the state, and fell directly within the Law of 1830; that the land was appropriated when the dam was completed and the water of the river raised, and the neglect to present the claim within a year thereafter was a waiver of all right of damages against the state.</p>

This was an action to recover a balance claimed to- be due upon a contract. December 11, 1882, the parties executed a written contract by which the plaintiff promised to excavate and remove the rock and earth to the level of the street curb' from four city lots before August 1, 1883, for a certain price per cubic yard, which the defendant agreed to pay.

<p>By the terms of a certificate or policy of insurance on the life of H., plaintiff’s husband, the representations and answers of the insured embraced within the application on the physician’s certificate were made warranties. The application contained the following questions, and answers: “Q. Is applicant temperate and correct in his habits 2 A. Yes. Q. Does applicant promise to remain temperate ? A. Yes.” H. committed suicide by shooting himself nine days after the certificate was issued. In an action thereon defendant’s evidence tended tó show that for a few days prior and subsequent to the date of the policy H. drank frequently and was at a certain place, in the company of harlots, drunk. «This testimony was controverted, and plaintiff’s witnesses, who had known H. for a long time, testified that he was temperate and not accustomed to drinking and his habits were-good. The court denied a motion to nonsuit. Held, no error; that the evidence did not authorize the court to hold, as a matter of law, that H. was not temperate within the meaning of the policy; that the word temperate suggests moderation, not abstinence, and H.’s warranty and promise were to the effect that his hahit was to refrain from excessive indulgence in the use of intoxicants and that he would not habitually and excessively indulge in such use, not that he would abstain from all use.</p> <p>In his application H. agreed to be bound by and subject to defendant’s by-laws and regulations, which, among other things, provided that it was not liable for the payment of any claim where the member died in violation of the laws of the land. Held, that, as suicide is not a crime within this state, no breach was shown.</p> <p>Defendant’s by-laws also provide that it will not be liable when a member has died from suicide, if committed within “ two years from date of the certificate of membership.” The evidence showed that H. fired the shot, intending that death should result. Plaintiff claimed and gave evidence tending to show that H. was insane at the time. Defendant’s evidence tended to show that H. was sane, and that his act was deliberate and wholly voluntary. Held, that the question as to a breach of the condition was one .of fact for the jury.</p>

This action was brought by the Blair Hon and Steel Company to recover from one Christopher Meyer, since deceased, a balance alleged to be due from him upon a subscription for the purchase of 600 shares of paid-up stock of said company. While the action was pending a receiver of the corporation was appointed and substituted in its place, as plaintiff, and Mr. Meyer, having died, his administrators were substituted as defendants.

The action was for the specific-performance of a contract to purchase real estate. In March, 1853, Giles B. Richardson died intestate, seized of the property in. question, leaving surviving him his widow Mary P. Richardson, and two sons, William H. and Giles B., Jr. Giles B., Jr., was born on May 16, 1840, and lived with his mother at Pittsford, Monroe county, until 1863. At that túne he was unmarried, and was in poor health, was very dissipated and had no business.

. The nature of the action and the facts are sufficiently stated in the opinion. The cáse of Coe v. Hobby (7 Hun, 157; 72 N. Y. 141), upon which the court below at General Term based its judgment, should not and does not govern this case. In that ease the agreement was executory, unperformed in whole or in part, and the court was asked to compel the performance of it.

This action was ejectment, to recover of the defendant the possession of a strip of land located partly- in the county of Albany and partly in the county of Schenectady, and occupied by the defendant with its track and railroad.

judicial' department, entered upon an order made May 13, 1887, which affirmed a judgment • in favor of plaint! ff entered upon a decision of the court on trial at Special Term.. Mary S. Crane, through an attorney named Baker, loaned to the defendant $8,000 on bond and mortgage. The papers bear date December 2, 1875, and were made payable with annual interest on December 2, 1880.

<p>Appeal from judgment of the General Term of the Court of Common Pleas for the city and county of Eew York, entered upon an order made May 5,1887, affirming a judgment in favor of plaintiff entered upon a verdict, and affirmed an order denying a motion for a new trial.</p> <p>The nature of the action and the facts are sufficiently stated in the opinion.</p> <p>At the time of the commencement of this action the theory of the courts was that the plaintiff in such an action could recover for the permanent depreciation of his property. (Pond v. M. E. R. Co., 42 Hun, 567; Newman v. M. E. R. Co., 45 id. 590; Peyser v. M. E. R. Co., 13 Daly, 122.) Subsequently it was decided that only temporary damages could be recovered. (Ulive v. N. Y. C. & H. R. R. R. Co., 101 N. Y. 98; Ladir v. M. E. R. Co., 104 id. 268 ; Pond v. M. E. R. Co., 112 id. 186; Ottenot v. N. Y., L.E & W. R. R. Co., 28 N. Y. S. R. 483.) As there were exceptions in the case sufficient to present the point, defendant is entitled to the benefit of the later decision and should be granted a new trial.</p> <p>The motion to dismiss was correctly denied. (2 Rolle’s Abridg. 569 ; Hitchcock v. Harrington, 6 Johns. 294; Levy v. Mayor, etc., 3 Robt. 194.)</p>

This is an appeal from a judgment of the general term, fourth department, affirming a judgment of non-suit and dismissal of the ■complaint. The action was brought to recover damages alleged to have been sustained by plaintiff from a collision between the wagon in which plaintiff was riding and the engine hauling a train of the defendant’s at a highway-crossing of the defendant’s road near Palmyra.

which affirmed a judgment in favor of plaintiff entered upon the report of a referee. This was an action upon a contract to recover “renewal commissions ” claimed to be due thereunder on certain policies issued by defendants. The facts are sufficiently stated in the opinion. The referee erred in refusing to find that the contract of February 13, 1880, was, by its terms, a contract for the services of the plaintiff for at least one year.

<p>A person who sells commercial paper as his own is understood to warrant his title thereto to be good, and that the instrument is genuine.</p> <p>A copartnership may exist, and the parties to it be bound even though there is no firm name. If one has been agreed upon, it must be used in order to bind the firm, but if none has been agreed upon, a name that fairly represents the company may be adopted, and, by custom and use,, become its valid name.</p> <p>In an action to recover damages for a breach of warranty in the sale of ai promissory note which purported to have been made by F. '& Co., payable to the order of B., who indorsed it, plaintiff claimed the note was sold to it by defendant as owner, and that no such firm existed. It was proved that the name of F. & Co. was signed by B., who, with F., were engaged in a joint enterprise, and had jointly made contracts with other parties in reference thereto; that by the arrangement between them B. was to have the general management of the business, and the profits were to be divided equally between them; that the note was given to-pay expenses incurred in the joint enterprise; that an agreement with another party was reduced to writing in the form of a letter by B., and signed F. & Co., by him; this was submitted to F. before it was transmitted. Held, the evidence authorized a finding that a copartnership existed, and that the name used had been adopted as the firm name.</p> <p>It appeared that defendant was in fact the agent of B. in selling the note, and the money received, less commissions, was paid over to the latter. . Plaintiff wrote to defendant a letter, inquiring in regard to the note and the indorser; defendant, answered, using a letter-head, describing him-. self as a “banker and dealer in commercial paper,” and stating that he “ bought and sold on commission ” stocks, bonds, etc. In the letter defendant stated that he still held the note. The court submitted to the jury the question as to whether defendant disclosed his agency in making the sale, and as to whether there was an implied warranty that the note was genuine. Held, error; that these questions should have been disposed of by the court.</p>

Court in the fourth judicial department, entered upon an order made November 9, 1886, which affirmed a judgment in favor of defendant entered upon a verdict directed by the court, and affirmed an order denying a motion for a new trial. This was an action of ejectment to recover the possession of a parcel of land in the city of Binghamton that formerly constituted a part of the Chenango canal.

Appear from order of the General Term of the Supreme Court in the fourth judicial department, entered upon an order made April 20, 1886, which reversed a judgment in favor of plaintiff entered upon a verdict, and granted a new trial.

<p>Master and servant—Contributory negligence.</p> <p>On the trial of an action by plaintiff for injuries resulting from the unexpected. starting of machinery while he was engaged in changing saws, the court refused to instruct the jury on defendant's request, “that if the plaintiff knew or had notice that the machine was out of order, and with this knowledge placed his left hand upon the saw, that the placing of his hand upon the saw, with this knowledge and under the circumstances, constitutes contributory negligence, and plaintiff cannot recover.” Held, error; as the court, had omitted to previously instruct the jury upon this subject.</p> <p>(Bradley, J. dissents.)</p>

The nature of the action and the facts are sufficiently stated in the opinion. The plaintiff was guilty of gross carelessness in putting his hand on the top of the saw while putting on and adjusting the saws, especially so as he seems to have known that the machinery was out of order, and had, once before, started without being set in motion by the plaintiff. (Leary v. B. & A. R. R. Co., 32 Alb.

entered upon an order made December 27, 1887, which affirmed a judgment in favor of plaintiff entered upon a decision of the court on trial at circuit. The nature of the action and the material facts are stated in the opinion. For the force and effect of the written instrument the court must look to the paper itself and not beyond it. (Jones on Chat.

<p>Appeal from judgment of the General Term of the Supreme Court in the third judicial department, entered upon an order made February 1, 1887, which ordered a judgment in favor -of plaintiff on a verdict directed at circuit, subject to the opinion of the General Term.</p> <p>The nature of the action and the facts are sufficiently stated in the opinion.</p> <p>A continuous wrongful obstruction of a public highway is .a nuisance which any citizen may abate. (Harlow v. Humiston, 6 Cow. 189; Lansing v. Smith, 8 id. 146; Dygert v. Schenck, 23 Wend. 446; Driggs v. Phillips, 103 N. Y. 77; Hart v. Mayor, etc., 9 Wend.. 589; Wetmore v. Tracy, 14 id. 250; Howard v. Robbins, 1 Lans. 63.) The proceeding under the statute through which the plaintiff asserts that’ the defendants were deprived of the right to travel the old road, and that he acquired the right to inclose the land and exclude them from it, is a proceeding that affects substantial vested rights of property, and, therefore, the statute must he strictly construed and every requirement of it complied with ; nothing will be presumed. (Jackson v. Sheppard, 7 Cow. 90; Sharp v. Spier, 4 Hill, 86; Varrick v. Tollman, 2 Barb. 113; Sharp v. Johnson, 4 Hill, 99; Corwin v. Merritt, 3 Barb. 341; Morris v. Williamson, 35 id. 472; Boughton v. City of Brooklyn, 15 id. 395; In re City of Buffalo, 78 N. Y. 366 ; Bunner v. Eastman, 50 Barb. 639; Merritt v. Vil. of Porchester, 71 N. Y. 309; Powell v. Tuttle, 3 id. 396.) Where all other conditions exist necessary to authorize the order, three things are necessary to complete the statutory proceedings: 1. The order must be made reciting the survey. 2. It must be filed and recorded in the town clerk’s office. 3. A copy of it must be posted in the place designated. (1 R. S. chap. 16, ar 4, §§ 55, 56 ; Sherwood v. Reade, 7 Hill, 434; Morse v. Williams, 35 Barb. 475 ; Sharp v. Spier, 4 Hill, 79.) The failure to prove affirmatively the posting of a copy of the commissioner’s order on the door of the house where the town meeting was usually held is fatal to the plaintiff’s case. (People v. Cortelyon, 36 Barb. 164; Laws of 1847, chap. 455, § 8 ; People v. Goodwin, 5 N. Y. 573; People v. Odie, 54 id. 52; People v. Harris, 63 id. 391; Rector v. Clark, 78 id. 21; Van Slyke v. Sheldon, 9 Barb. 285 ; Bloom v. Burdick, 1 Hill, 130; In re Ford, 6 Lans. 94; People v. Tollman, 36 Barb. 222 ; People v. Gray, 49 Hun, 465 ; Phillips v. Schumaker, 10 id. 405 ; Corwin v. Merritt, 3 Barb. 345 ; 1 R. S. 513, 518, §§ 55, 83, 84; Hill v. Draper, 10 Barb. 454; Jackson v. Sheppard, 7 Cow. 90 ; Sharp v. Spier, 4 Hill, 86 ; Striker v. Felly, 2 Den. 330 Varick, v. Tallmam, 2 Barb. 114; Bunner v. Eastman, 50 id. 643; Boughton v. City of Brooklyn, 15 id. 395 ; Hoyt v. Dillon, 19 id. 649 ; Adams v. R. R, Co., 10 N. Y. 328; Wheeler v. Mills, 40 Barb 647; Jewell v. Van Steenburgh, 58 N. Y. 92; In re City of Buffalo, 78 id. 366 ; Tingue v. Vil of Portchester, 101 id. 288, 289 ; 2 R. S. 369, §§ 37, 40, 49 ; Wood v. Morehouse, 45 N. Y. 376; Disoway v. Winant, 34 Barb. 582; Smith v. Ferris, 6 Hun, 555 ; Wiggins v. Tallman, 11 Barb. 457; Trustees v. Otis, 37 id. 50; Chapman v. Swan, 65 id. 210 ; Cook v. Harris, 61 N. Y. 448; People v. Lochfelm, 102 id. 1; Carpenter v. Given, 35 Barb. 395 ; McMorris v. Butler, 51 id. 436.)</p> <p>In the absence of proof to the contrary the law presumes that public officers charged with a public duty perform that duty rightfully. (Wood v. Morehouse, 45 N. Y. 369-376; Jackson v. Chaplin, 13 id. 509-516; Broom’s Leg. Max. 429, 847; Clute v. Emerich, 21 Hun, 122, 128; Penal Code, § 117.) The highway altered, both as to the part discontinued and that created by the alteration, was wholly on the lands of the plaintiff. He consented thereto and the commissioner of highways had jurisdiction to make the alteration, without the intervention of a jury. (R. S. 1212, 1238, 1239, §§ 1, 55, 56, 60; Drake v. Rogers, 3 Hill, 604, 608.) The defendants are chargeable with notice of the alteration. (Mayer v. Hinman, 13 N. Y. 180; 1 R. S. chap. 16, § 64; Rogers v. Bradshaw, 20 Johns. 735; Wallace v. Kalenowefaki, 19 Barb. 118; Chapman v. Gates, 54 N. Y. 133.) Section 64 of the Revised Statutes is merely directory and not mandatory. (Marble v. Whitmey, 29 EL Y. 297.) The order of the commissioners was an alteration of the old Cochecton road, or road district No. 14, and not the discontinuance of an old road or the opening of a new road. (People ex rel v. Jones, 63 N. Y. 306-310; Laws of 1874, chap. 613, § 1; 1 R. S. chap. 16, § 60.) The commissioners liad jurisdiction of the subject-matter, and the alteration having been duly made and carried into effect,’the validity and regularity of his proceeding will not be reviewed in a collateral action. (R S. [7th ed.) 1246, § 84; People ex rel. v. Jones, 63 N. Y. 106 ; Marble v. Whitney, 28 id. 297, 307; Porter v. Purdy, 29 id. 106; People ex rel. v. Horton, 8 Hun, 357; Ham v. Silvernail, 7 id. 33.)</p>

The nature of the action and the material facts are stated in the opinion.. The motion for a nonsuit should have been granted. The evidence did not establish any actionable neglect of the village authorities which caused the plaintiffs, injury. (Allen v. New Gas Co., 17 Eng. Rep. 420, 424; McCaffrey v. R. R. Co., 47 Hun, 404; Bandee v. R. R. Co., 59 N. Y. 356, 366; Dwight v. Ins.

This action was to recover three months’ rent for apartments in a building No. 29 West Fifty-seventh street, in New York city, known as “ The Soncey.” The defense was first, an eviction; second, that the building was so injured as to be untenantable and unfit for occupancy, and that the defendant, therefore, quit and surrendered the demised premises pursuant to chapter 345; Laws of 1860.

This action was brought to recover a sum of money paid by plaintiff to redeem certain premises from a sale for a tax which he alleged to be invalid. The material facts are stated in the opinion.

Appeal- from a judgment of the General Term of the Supreme' Court in the fifth judicial department, entered upon an order made the first Tuesday of January, 1886, which denied a motion for a new trial and directed judgment for the defendants upon a verdict. This was an action of ejectment to recover the possession of an undivided interest in about 180 acres of land situate in the county of Ontario.

Appeals from judgments of the general term of the superior court of the city of New York, overruling defendant’s exceptions and directing judgments for the plaintiffs. The first action was brought upon two promissory notes made by Humphrey & Co., in October and December, 1882, amounting to $11,958.57. The second action was brought upon six promissory notes made by Humphrey & Co., in September, 1882, amounting to $35,882.16.

<p>It seems, that upon sale of chattels in the possession of the vendor, unless there are facts and circumstances accompanying the sale, indicating that he did not intend to assert title or ownership in himself, but simply to transfer such interest or title as he has, a warranty of title is implied.</p> <p>A manufacturing corporation, to secure certain of its bonds, mortgaged to defendants, as trustees, all of its machinery, equipments, etc. Default having been made in the payment of interest on the bonds, the mortgagees, in strict pursuance of the power of sale contained in the mortgage, sold at public auction all of the mortgaged chattels in a single lot to plaintiff. The sale took place at the building which contained said chattels, which was occupied by the mortgagor under a lease. Among the articles sold were a steam engine, boiler, pump and connections, which plaintiff alleged the defendants had no title to or power to sell. In an action against them individually to recover the value of said property, it appeared that the lessor of the building prevented plaintiff from removing it; why or under what title he claimed was not shown. It also appeared that plaintiff brought an action against the executor of said lessor for converting said property. The defendant in that action interposed simply a general denial On the trial thereof, the jury assessed the value of all the property claimed, and the court directed a verdict for plaintiff for the amount excepting the boiler, engine, pump and appurtenances. It did not appear by what right said defendant claimed the property excepted, or why plaintiff failed to recover therefor. Plaintiff failed to show that defendants here made any representations in regard to the title, or that the property was withheld by virtue of a paramount title. Reid; that a personal warranty of title could not be implied as against defendants, and so, that plaintiff was not entitled to recover.</p>

The nature of the action and the facts are sufficiently stated in the opinion. The sale of the stocks, without notice to the defendant of the time and place of sale was a clear conversion thereof by the plaintiffs, and the refusal of the court so to instruct the jury was error. (Markham v. Jaudon, 41 N. Y. 235 ; Stenton v. Jerome, 54 id. 480; Baker v. Brake, 66 id. 518.) The wrongful sale by the plaintiffs of the stocks in question was a complete defense to the action.

This action was brought to foreclose a mortgage made by the defendants, who are husband and wife. The defendants answered separately, each averring in effect that no indebtedness in fact existed at the time of the execution and delivery of the bond and mortgage, arid that, therefore, the mortgage is void for want of consideration.

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

<p>Possession is presumptively the relation assumed to- premises hy a party who lawfully enters upon them as a place of abode, and occupies them, as such.</p> <p>Where, pursuant to the rules and regulations of the “Methodist Episcopal Church of the United States,” a minister is placed by a conference of that denomination in charge of a local church belonging to it, no relation of master and servant exists between the church or its trustees and the minister.</p> <p>Where a minister, so assigned, is provided with a parsonage, rented for the use of the local church, no'other relation than that of possession is consistent with the use and enjoyment of the premises.</p> <p>One having the legal right to the possession of premises, in the actual possession of another, is not justified in entering and forcibly expelling the latter, and for so doing he is liable.</p> <p>Plaintiff, a member of a conference of said Methodist Episcopal Church, was stationed by the conference as a preacher at S. V., and continued to preach in that place, occupying a parsonage rented by or on behalf of the local church for its minister and furnished to him as a place of residence for himself and family, until, in accordance with the rules and discipline'of said denomination, he was suspended from all ministerial services and church privileges. The defendants thereafter forcibly ejected the plaintiff from the parsonage. In an action to recover damages for the assault and eviction, the trial court charged that the eviction was unlawful and that, upon that branch of the case, the question for the jury was one of damages only. Held, no error;</p>

This was an action to recover damages for personal injuries sustained by the plaintiff through the alleged negligence of the defendant. On the 27th of January, 1886, the plaintiff was in the employ of the defendant, a corporation engaged in operating an iron mine in the county of Jefferson.

The nature of the action and the material facts are stated in the opinion. The agreement not being executed in the name of any principal, by the defendant and one Elwell (since deceased), it is their personal obligation.

This action was brought to procure a decree that the title to certain premises in the city of Brooklyn is in the plaintiffs -; to require the defendants to surrender the possession thereof, and for other relief. In 1847, one Bern Lefferts owned about seventy-two acres of land in Brooklyn, known as the Clover Hill farm, which included the premises in question.

<p>Appeal from an order of the General Term of the Supreme-Court in the third judicial department, made- at the ¡November term, 1887, Avhich reversed a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term,, and granted a neAV trial.</p> <p>This action Avas brought by the plaintiff’s testator to restrain the defendant’s testator from interfering with a. drain running-from the plaintiff’s premises across the defendant’s, premises, and to compel him (defendant’s testator) to restore the portion of the drain which he had destroyed.</p> <p>Prior to October 14, 1845, Platt Williams was the owner of four lots of land on Patroon street, now Clinton avenue, in the city of Albany, and of land adjoining said lots on the south, and fronting on Orange street. On the date last named, said Williams and wife conveyed to one Davidson the lot owned by the defendant, and thereafter said lot by several mesne conveyances was conveyed to John Reid, the defendant’s testator. Said Reid became the owner in May, 1873. None of said deeds contained any reservation of the use of any drain or of any right or privilege of drainage through or across said lot. The deed to Davidson did, however, convey the right to “ the use of a drain in the rear of said premises, leading from thence through another lot of said party of the first part (Williams) to a public drain in Orange street,” and said right of drainage was by several mesne conveyances of said lot conveyed to said Reid.</p> <p>On November 20, 1849, said Williams and wife conveyed to one Charles 0. Vail two plots of .ground on Patroon street, one lying easterly and one westerly of the lot conveyed to Davidson, the latter of which two plots of land included the lot now owned by the plaintiff. The deed to Vail made no mention of any right of drainage or of any right to use any drain through or across the defendant’s lot. On December 2, 1851, said Vail conveyed the lot now owned by the plaintiff to one William Rennie, and by several mesne conveyances the title thereto was, prior to September 4, 1860, vested in James Vane, who, on said date conveyed the same to plaintiff’s testator. The deed from Vail to Rennie purported to convey “ the free and uninterrupted use of a drain in common .with the other owners,” and such right is expressed as being conveyed in all subsequent deeds of the lot to and including the deed from Vane to the plaintiff’s testator. When plaintiff’s testator became the owner of said lot there 'existed a drain which ran therefrom across an intervening lot and across the defendant’s lot, to the lot of one George Carroll which is next east of defendant, and then entered a drain running southerly across a lot owned by one Flood to Orange street, which then and for some time thereafter was used to drain the plaintiff’s lot. In May, 1885, the said drain was discovered by plaintiff’s testator to have been cut off and stopped up with clay, upon defendant’s lot.</p> <p>Flood derived the title to his lot from Williams, and the conveyance to him in October, 1853, was “ subject to a certain right of drainage or sewerage from four certain lots heretofore sold and conveyed by parties of the first part (Williams) and lying on Patroon street, through a drain or sewer heretofore constructed in and upon said lot hereby conveyed, and this right is hereby reserved. The party of the second part, his heirs and assigns being hereby bound to keep in repair that part of said drain or sewer as it now exists, which runs through the lot hereby conveyed.”</p> <p>The trial court found that by the deed from Yane and wife the plaintiff’s testator became the owner of a right of drainage across the defendant’s lot and thence across the lot on the east to a drain running southerly to Orange street.</p> <p>That the defendant’s testator held his lot subject to such right of drainage and became the owner of said lot with due notice of said right. That the plaintiff had, prior to May, 1885, used and enjoyed said right of drainage for more than twenty years.</p> <p>That the drain from plaintiff’s lot through defendant’s lot and thence to Orange street, was the one referred to in the deed from Williams to Davidson, and that defendant and his grantors were made aquainted with the condition of the lots in reference to the drain by the deed of Williams to Davidson, and took title with notice and knowledge of. the changed condition of the lots as related to the drain.</p> <p>Further facts appear in the opinion.</p> <p>The plaintiff has a right to the use of the drain by prescription. (Washb. on Easements, 104, 151; Ward v. Warren, 82 N. Y. 265.) The plaintiff has a legal right to use the drain upon the language of the •deeds introduced in evidence. (Flint v. Bacon, 13 Hun, 454, 457; Acer v. Westcott, 46 N. Y. 384; McPherson v. Rollins, 107 id. 316 ; Gale and Whately on Easements, 40; 21 N. Y. 516 ; Bridge v. Pierson, 66 Barh. 517; Hubbell v. McCulloch, 47 id. 294; Fitzhugh v. Raymond, 49 id. 649.) The burden having been imposed upon the defendant’s lot, and the privilege conferred upon the plaintiff’s lot by Williams, the common owner, they hold them according to their changed con, ditions as made by the common owner. (Roberts v. Roberts, 55 N. Y. 275, 277; Green v. Collins, 86 id. 25; Lampman v. Milks, 21 id. 505,. 507.) The failure of Davidson or liis grantees to record the deed of Williams to Davidson, one of defendant’s grantors, until after the plaintiff’s testator had purchased his lot, recorded his deed and used the drain for many years, makes such deed to Davidson void, and makes the deed of Williams to Vail, one of plaintiff’s grantors, of the •same force as it would have had if the deed to Davidson had never been given. (4 E. S. [8th ed.] 2469, §§ 1, 36, 37; Pecker v. Boice, 83 N. Y. 215 ; Page v. Waring, 76 id. 463 ; Cook v. Travis, 20 id. 400, 402; Webster v. Van Steenbergh, 46 Barb. 211; Hooker v. Pierce, 2 Hill, 650 ; Woodv. Choggin, 13 N. Y. 509.) The plaintiff and defendant having acted upon the situation, and the defendant having demanded and received from plaintiff money -upon the faith and credit of the situation, the defendant-is estopped from denying the plaintiff’s' rights. {Nellis v. Munson, 24 Hun, 575.)</p> <p>The trial court erred in ‘fin ding “that in and by the deed from'Vane and wife to the plaintiff” (which was executed in 1860), “ the plaintiff became the owner of a right of drainage from his premises across, or through, the two lots lying adjacent to and next east of ¡said lot of plaintiff, etc., and that the defendant owns and holds his lot subject to such right of drainage.” (Butterworth v. Crawford, 46 N. Y. 349; Reiners v. Young, 38 Hun, 337; 15 N. Y. S. R. 277; Outerbridge v. Phelps, 13 J. & S. 555, 512; Taylor v. Millard, 42 Hun, 363; Shoemaker v. Shoemaker, 11 Abb. [N. C.] 80; Carbry v. Willis, 1 Allen, 369 ; Washb. on Easements, 66-70; Huyck v. Andrews, 113 N. Y. 81; Ara v. Minkler, 5 Lans. 196 ; Hymes v. Estey, 41 Alb. L. J. 134.) The judgment cannot be sustained upon the ground of adverse user. (Ward v. Warren, 82 N. Y. 268 ; Hanifin v. Blake, 102 Mass. 291; Blake v. Emritt, 1 Allen, 348 ; Carbry v. Willis, 1 id. 368 ; Parker v. Foote, 19 Wend. 311; Colvin v. Bennet, 11 id. 568; Washb. on Easements [3d ed.], 160; Nicholls v. Wentworth, 100 N. Y. 455 ; Sturges v. Parkhurst, 18 J. & S. 311.) The fact that the deed from Williams to Davidson, through which defendant holds title to his lot, was not recorded until after that from Williams to Vail, through which the plaintiff claims title to his, can have no bearing on the case to support the judgment. (Bank v. Delano, 48 N. Y. 326 ; Acer v. Westcott, 46 id. 384;. Ins. Co. v. Halsey, 8 id. 211 ; Reed v. Gannon, 50 id. 349 ; Williamson v. Brown, 15 id. 362.)</p>

<p>1. Negligence—Care required in coupling cars by automatic attachment.</p> <p>Plaintiff, with others, hoarded defendant’s train at Peekskill, passed through the train and found no seats, and at the suggestion of the conductor that another car would be put' on, alighted from the train and proceeded toward the forward end. The engine, with a portion of the train, ran ahead to take on the empty car. Plaintiff and her friends boarded the platform of the stationary portion of the train to await the connectian with the empty car, and as the cars came together her friends passed into it, and she attempting to follow fell between the cars, which had separated by the failure of the drawheads to catch and complete the coupling. There was evidence that the conductor had called “all aboard," but this was denied by the servants of defendants. Held, that the conclusion of the jury was permitted that the circumstances enabled the passengers to understand (unless they saw something to the contrary) that the car was ready for them to enter it.</p> <p>2. Same—Contributory negligence.</p> <p>The call of the conductor may have been treated as an invitation to do so, and as it was given prematurely or before it was entirely safe to do so, it was the fault of defendant’s employee, which justified the imputation of negligence against the defendant, and plaintiff in proceeding to pass into the car was not chargeable with negligence, unless she saw the gap between the cars.</p> <p>3. Same.</p> <p>There was no error in the refusal of the court to charge, as requested, that plaintiff was bound to wait in the car, where she was in a safe place, until the coupling was complete.</p>

<p>Appeal from order of the General Term of the Supreme Court in the first judicial department, entered upon an order made January 23, 1888, which reversed a judgment in favor of plaintiff, entered upon a decision of the court on trial at Special Term, and ordered a new trial.</p> <p>Prior to August, 1867, the defendants Englehorn and JVIarsily were copartners in business, and, as such copartners, between April 13, 1861, and April 9, 1865, paid to certain underwriters of marine insurance, extra premiums for insurance against capture or destruction of property of the firm by Confederate cruisers.</p> <p>In August, 1867, said defendants were, upon their own petition, jointly and severally adjudged bankrupts, and John Todd was appointed their assignee, and on August 25, 1867, the usual assignment in the form prescribed by law was executed and delivered to said assignee by said defendants.</p> <p>In January, 1883, pursuant to an act of congress, entitled “An act re-establishing the Court of Commissioners of Alabama Claims and for the distribution of unappropriated moneys-of the Geneva award,” approved June 5,1882, said Englehorn and Marsily filed a claim in the court aforesaid to recover the' amount of premiums paid as aforesaid, and in May, 1884, a judgment therefor was rendered in said court in favor of said defendants for $2,788.32, and in August, 1884 (the unappropriated moneys being insufficient to pay said award in full), a-draft for $975.21 was issued by the treasurer of the United States in payment of the said judgment, and is now in the-hands of the defendant Marsily. This action was brought by the assignee in bankruptcy of said defendants to recover the-amount of said draft.</p> <p>The trial court found the foregoing facts, and as conclusions of law that, by the assignment in bankruptcy, all the right,, title and interest in and to said claim for extra premiums, passed to and became vested in the assignee; that the said Englehorn and Marsily had no right to receive payment of' said judgment or of said draft, and that the same belonged to-the plaintiff, and all sums payable thereon should be paid to the plaintiff, and gave judgment accordingly. Todd having, died, the plaintiff was appointed his successor.</p> <p>The United States undertook to represent the claims for damages of all of its-citizens and used them as items of its national demand; but. it was to the interest of the government, in order to limit its-own international obligations, that the tribunal should decide against it in respect to the indirect losses. (Vattel’s Law of Nations, chap. 7; 13 C. R. 3812, 4182.) That it might be free to act for the best interests of the nation without sacrificing the claim of any of its citizens, it accepted the award, but stipulated there should be no committal of this government as to the distribution of it. (13 C. R. 3813, 3841.) The trust imposed upon the United States when it received the award was for the benefit of those whom it should determine were the sufferers. (Hackett, Geneva Award Act. 180 ; The Peggy, 1 Cranch [U. S.], 110; Report of Sen. Com. 1886; 13 C. R. 3821, 3854, 3871, 4813.) The action of the government in directing by the act of 1882 the payment of the war premium men was based upon the theory that the undistributed portion of the award represented direct losses paid by underwriters from premiums on war risks. (13 C. R. 3841, 3849, 3853, 3884, 3890, 4138, 4153, 4154.) Money collected by the government from a foreign nation by treaty or otherwise, and paid out to the citizens of the government receiving it as indemnity for loss or injury caused by the action of the foreign .government, is not a bounty, but is property which will pass to an assignee in bankruptcy or an executor of the person whom it is sought to indemnify. (Comegys v. Vassee, 1 Pet. 193; Phelps v. McDonald, 99 U. S. 298; Leonard v. Nye, 125 Mass. 445; Milnor v. Metz, 16 Pet. 223; Rustonyie v. Queen, L. R. [1 Q. B. Div.] 497; Pierce v. Stidworthy, 4 N. E. Rep. 499; Grant v. Bodwell, 78 Me. 463.) The copies of the petition of the defendants in the Court of Commissioners of Alabama Claims and the docket of that court were properly received in evidence. (23 U. S. Stat. at Large, 33, 34; Code Civ. Pro. § 944.)</p> <p>There is no conflict of evidence, and only a question of law was presented in the courts Below. (Heard v. Sturgis, 146 Mass. 545; Kingsbury v. Mattocks, 81 Me. 310; Brooks v. Aherns, 68 Md. 212; In re Cooley, 19 N. Y. S. R. 241; 47 Hun, 175 ; Emerson v. Hall, 13 Pet. 409; Gillan v. Gillan, 55 Penn. St. 430; Burnand v. Rodoconachi, L. R. [6 Q. B. Div.] 633; 44 L. T. 538; 7 App. Cas. 333; Campbell v. Mallett, 2 Swan. 551, 570; McLean's-Case, Rep. Clerk of Ala. Cl.112.) The court erred in receiving in evidence a certified copy of the petitions filed by the defendants Engleliorn and Marsily with the Court of Commissions of Alabama Claims. (Williams v. Ingersoll, 89 N. Y. 508; Fairbanks v. Sargent, 104 id. 108; Krekeler v. Thaule, 73 id. 608.)</p>

Cross appeals from judgment of the General Term of the Supreme Court in the first judicial department, entered upon an order made October 26, 1887, which affirmed a judgment upon decision of the court on trial at Special Term. This action was brought for separation on the alleged ground of cruel and inhuman treatment.

<p>Appeal from order of the General Term of the Supreme Court in the second- judicial department, made February 14, 1888, which reversed a judgment in favor of defendant entered upon a verdict directed by the court, and reversed an order denying a motion for a new trial and-granted a new trial.</p> <p>On the 3d day of August, 1883, the defendant, a mutual benefit association, issued a certificate of membership to one J. Fred. Dennis, conditioned that if Dennis should comply with the rules and regulations of the defendant, and forming a part of the contract, the defendant would pay to Anne C. Dennis, within sixty days after due proof of his death, a sum equal to the amount received from a death assessment, but not 'to exceed $5,000. The seventh condition of the contract is as follows: “A failure to comply with the rules of said association as to payment of assessments, or falling into gross and confirmed habits of intoxication, shall also render this certificate void.”</p> <p>The-rules, in so far as they relate to the payment of assessments, are: “ Second. Upon the death of any member the said party to whom this certificate is issued, shall at once pay, if required, to its treasurer, an additional assessment of six 75-100 dollars. Third. The form of notice to and the process of collection from each of the members of the association above named shall be as follows: A notice shall be sent announcing such assessment, and the number thereof, to the last post-office address given to the association by each member, and, if the assessment is not received within thirty days from the mailing of said notice, it shall be accepted and taken as sufficient evidence that the party has decided to terminate his connection with the association, which connection shall thereupon terminate, and the party’s contract with the association shall lapse and be void; but said party may again renew his connection with the association by a new contract made in the same manner as at first; or for valid reasons to the officers of the association (such as a failure to receive notice of an assessment), he may be reinstated by paying assessment arrearages.”</p> <p>February 13, 1886, the defendant mailed to Dennis a notice of assessment, by the terms of which he was required to make payment on or before March .fifteenth. Seven days before the expiration of the time of payment, and on March eighth, Dennis, while walking in the streets of the city of New York, and apparently in good health, was suddenly stricken with apoplexy, rendering him immediately speechless and insensible. He never regained consciousness, and died on March nineteenth, four days after the expiration of the time limited in the notice for-the payment of the assessment. The next day, March twentieth, a second notice was received from the defendant, in all respects like the first, with the exception that it had stamped upon the face, in red ink: “ Certificate forfeited for non-</p> <p>payment; May be renewed by immediate payment if in good health.”</p> <p>The trial court refused plaintiff’s request to submit certain specified questions to the jury and directed a verdict in favor of the defendant.</p> <p>Further facts appear in the opinion.</p> <p>No question of fact having been submitted to or decided by the jury, the powers of the General Term were invoked simply to decide whether or not, as matter of law, the defendant was entitled on the trial to a directed verdict in its favor. The same question is, therefore, properly before this court on this appeal. (Cole v. Mann, 62 N. Y. 4; Mack v. R. G. Ins. Co., 106 id. 560.) In cases of ordinary life-insurance, it has uniformly been held that failure to pay premiums when due by the terms of the policy, terminates the contract. (Roehner v. K. L. Ins. Co., 63 N. Y. 160; Evans v. U. S. L. Ins. Co., 64 id. 304; Howell v. K. L. Ins. Co., 44 id. 276 ; Wheeler v. C. M. L. Ins. Co., 82 id. 543; Holly v. M. L. Ins. Co., 105 id. 437; N. Y. I. Ins. Co. v. Statham, 93 U. S. 24; Douglass v. K. L. Ins. Co., 83 N. Y. 503, 504; Atty-Gen. v. N. A. L. Ins. Co., 82 id. 190 ; Carpenter v. C. L. Assn., 15 Ins. L. J. 455 ; Yoe v. H. M. B. Assn., 63 Md. 86; Hawkshaw v. S. Lodge, 29 Fed. Rep. 773; H. M. B. Assn. v. Miller, 2 South West. Rep. 900; Crossman v. M. R. Assn., 143 Mass. 435 ; Borgrave v. K of H., 22 Mo. App. 122; A. Ace. v. Baldwin, 86 Ill. 479; Hood, v. A. P. Assn., 31 Fed. Rep. 62; 63 N. Y. 167, 168.) The illness of the insured and his unconscious condition furnished no legal excuse for failure to pay the assessment. (Carpenter v. C. L. Assn., 15 Ins. L. J. 455; Yoe v. H. M. M. B. Assn., 14 id. 404; 63 Md. 86 ; Klein v. N. Y. L. Ins. Co., 104 U. S. 88; Hawkshaw v. S. L. & O., 29 Fed. Rep. 773; Harmony v. Bingham, 12 N. Y. 99; Tompkins v. Dudley, 25 id. 275; Wolfe v. Howes, 20 id. 197; Clark v. Gilbert, 26 id. 279; Spalding v. Rosa, 71 id. 40; Story on Bailm. § 36.) It was in no respect the fault of the association, but wholly that of the insured, that he neglected payment of the assessment when ordered, and until sickness had made it impossible for him personally to attend to it. (Yoe v. H. M. B. Assn., 63 Md. 86.) Bot being a member of the association at the time of his death, and, by reason thereof, having no contract of insurance in force, no action could he sustained on the certificate therefor. (Karcher v. S. L. K. of H., 137 Mass. 368; Borgrave v. K. of H., 22 Mo. App. 122, 143; Yoe v. H. M. B. Assn., 63 Md. 86; B. Soc. v. Baldwin, 86 Ill. 479; Blanchard v. M. Ins. Co., 33 N. H. 9; Rood v. R. P. Assn., 31 Fed. Rep. 62.)</p> <p>There is an essential difference as to the conditions of reinstatement, between old-line insurance and membership insurance. (44 N. Y. 276.) An essential condition of defendant’s liability under this certificate Avas dying in membership, nor can the reinstatement he initiated and carried out after the death of the insured. (Cohen v. M. L. Ins. Co., 50 N. Y. 619; Howell v. H. I. Ins. Co., 44 id. 276.)</p> <p>The well-established rule making absolute the lapsing of a life policy upon the non-payment of the annual premium in accordance with the strict terms of the contract itself, is not applicable to the case at bar. (Atty.-Gen. v. N. A. I. Ins. Co., 82 N. Y. 190; People v. K. L. Ins. Co., 103 id. 480; Ins. Co. v. Stratham, 93 U. S. 24.) By the terms of the policy, failure to pay the assessment before March 15, 1886, did not operate as a forfeiture. (Baley v. H. F. Ins. Co., 80 N. Y. 21, 23; Burleigh v. G. F. Ins. Co., 90 id. 220.) If the beneficiary in the policy was by act of God or other insuperable obstacle, prevented from paying the assessment within the time specified in the notice, there existed a valid reason to the officers of the association for excusing such non-payment and reinstating the policy, and whether such valid reason did in fact exist was a question for the jury. (Hoffman v. A. Ins. Co., 32 N. Y. 413; Howell v. H. L. Ins. Co., 44 id. 277 ; Holly v. M. I. Ins. Co., 105 id. 437, 441; D. S. B. Co. v. Gorden, 101 id. 387; Miesell v. G. M. L. Ins. Co., 76 id. 115, 119; City of Brooklyn v. B. C. R. R. Co., 47 id. 475, 479; Brumstein, v. A. D. Ins. Co., 1 B. & S. 782, 793; Moore v. Woolsey, 4 El. & Bl. 242; Homer v. G. M. L. Ins. Co., 67 N. Y. 482; Wheeler v. G. M. L. Ins. Co., 82 id. 543, 554.) The statutes of Massachusetts under which the defendant company was. organized, forbid the absolute forfeiture of the policy in question, through the non-payment of the assessment. (Gen. Stat. of Mass. chap. 119, §§ 159, 166.) The plaintiff not only claims under the strict terms of the contract itself, but also under a clear and distinct waiver by the defendant of the stipulations of the policy. (Crossman v. M. B. Assn., 143 Mass. 435 ; Shay v. N. B. Society, 54 Hun, 109.)</p>

This action was brought to recover damages for injuries received by plaintiff while passing along one of defendant’s streets. 0 The material facts are stated in the opinion. The. referee erred in refusing to make any finding whatever upon the questions of fact submitted, the proposed findings being material and beneficial to the defendant. (Code Civ. Pro. §§ 992, 993; Callahan v. Gilman, 107 N. Y. 316-372; Dillon on Man. Corp. [3d ed.] § 1020; Schaeffler v. Samdmsky, 31 Am.

This action was upon an insurance policy issued by the defendant on the 26th of January 1882, whereby it insured the firm of William Corris & Co., in the sum of $2,000, for the period of one year from said date, against loss or damage by fire to their stock, “ fixtures, tools and machinery as manufacturers of woodwork for carriages, contained in ” a certain building in Rochester.

<p>•li, the owner of certain lands, executed a written instrument, termed a lease, hy which he conferred on A. the exclusive right to produce oil and gas from said land for twelve years, and, for that purpose, to go upon it and make necessary erections, and to remove at the end of term any and all tools, machinery and the casing to the wells and drive-pipe if J. refused to pay a fair price therefor. A. assigned his interest in the lease to G. and P.; P. executed to plaintiff a mortgage upon his undivided interest in the lease, and upon all' his interest in the oil wells and the structures, etc., then thereon or to be placed thereon,A copy of this instrument was duly filed in the town clerk’s office' as a chattel mortgage. G. and P. sold and assigned all their rights and interests under the lease to the defendants A. and C., who thereafter added largely to the plant by way of engines, boilers and other machinery. Said defendants claimed to have purchased without notice of plaintiff’s mortgage. In an action to foreclose the mortgage, held, that it was valid as a chattel mortgage; that A. and O. were chargeable with constructive notice thereof, and plaintiff’s lien was not affected by their failure to find it; that, as between the parties it operated to create a lien in equity upon the chattels purchased and placed upon the land by the mortgagor subsequent to its date; but, that the lien did not attach to the personalty placed thereon by the assignees of the mortgagor.</p>

<p>Appeal from judgment of the General Term of the Supreme Court in the second judicial department, entered upon an order made May 9, 1887, which affirmed a judgment in favor of plaintiff entered upon a verdict, and affirmed an order denying a motion for a new trial.</p> <p>This was an action to recover damages for injuries received by plaintiff while in defendant’s employ.</p> <p>The material facts are stated in the opinion.</p> <p>The admission of testimony involving an inquiry as to the circumstances under which other accidents took place is not allowable. (Sherman v. Kortright, 52 Barb. 267, 269; Parker v. P. P. Co., 69 Me. 173; Greenl. on Ev. § 52; Warner v. N. Y. C. R. R. Co., 44 N. Y. 465, 472; Gahagan v. B. & L. R. Co., 1 Allen, 189 ; F. N. Bank v. O. N. Bank, 60 N. Y. 278, 295; Hudson v. C. & N. W. R. R. Co., 59 Ia. 581; Smith v. O. C. R. R. Co., 10 R. I. 22, 27; Crocker v. McGregor, 76 Me. 282. 284.) Mere proof of the happening of an unexplained accident— such as the bursting of a steam boiler or the giving way of a -dam—will not entitle an injured party to redress; the party from whom redress is sought must be convicted of responsible fault. (Losee v. Buchaman, 57 N. Y. 476.) The opinion of •an expert, as to whether conduct is prudent, is competent evidence, even though it is an opinion on the very question to be passed on by the jury. (T. line v. Hope, 95 U. S. 277, 295; 1 Allen,-188; Walsh v. W. M. Ins. Co., 32 N. Y. 427, 442; Abb. Tr. Br. 227, § 578.) The opinions of common observance in regard to common appearances, facts and conditions, have been received as evidence in a great variety of cases, and are competent. (State v. Shimfour, 46 N. H. 497; S. Clipper v. Logan, 18 Ohio, 375 ; Commonwealth v. Sturtivant, 117 Mass. 122; Commonwealth v. Pope, 103 id. 440; Comnonwealth v. Dorsey, Id. 412; Lund v. Tyngsborough, 9 Cush. 36; Dunhams Appeal, 27 Conn. 198; Clinton v. Howard, 42 id. 294; Hearney v. Farrell, 28 id. 319; Porter v. P. M. Co., 17 id. 253; People v. Eastwood, 14 N. Y. 562; Calver v. Dwight, 6 Gray, 444; DeWitt v. Bank, 17 N. Y. 344; Morse v. Stole, 6 Conn. 9; Giant v. Thompson, 4 id. 209 ; Kinne v. Kinne, 9 id. 103; Barker v. Comins, 110 Mass. 477; Nash v. Hunt, 116 id. 237; Sydleman v. Beckwith, 43 Conn. 9.) Reynolds Moran should have been allowed to state whether the press was safe to work at with ordinary care. He was familiar with the use of the press in respect to the work plaintiff was doing. This was not disputed and there was no objection to his testifying as an expert. (Moore v. Westervelt, 27 N. Y. 234, 238, 241; Bearss v. Copley, 11 id. 93, 94, 95 ; 3 id. 322, 323, 326 ; Walsh v. W. M. Ins. Co., 32 id. 427, 442; T. Line v. Hope, 95 U. S. 277, 298; R. & B. R. R. Co. v. Bailey, 11 Ohio St. 334, 337; Fenwick v. Bell, 1 C. & K. 312.) The refusal to charge that if the machine was dangerous, and plaintiff actually had knowledge of its dangerous character, that then plaintiff could not recover, was error. (Buckley v. G. P. & P. R. M. Co., 113 N. Y. 540; Hickey v. Taaffe, 105 id. 26.)</p> <p>An objection taken to a question that is answered is not good. (Plainer v. Plainer, 78 N. Y. 90.) Evidence of former accidents was admissible. (Baird v. Daily, 65 N. Y. 547; Johnson v. M. R. Co., 4 N. Y. Supp. 848, 849 ; Stebbins v. Village of Oneida, 5 id. 483 ; Hanrahan v. M. R. Co., 6 id. 395, 396; Pomfrey v. Village of Saratoga Springs, 104 N. Y. 459, 469 ; Quinlan v. City of Utica, 11 Hun, 217; 74 N. Y. 603; Sheldon v. H. R. R. R. Co., 14-id. 218; Hinds v. Barton, 25 id. 544; Crist v. E. R. Co., 58 id. 638; Dougan v. C. T. Co., 55 id. 1; Loftus v. U. F. Co., 84 id. 455; Burke v. Witherbee, 98 id. 562.) The motion for a nonsuit was properly denied. (Painton v. N. C. R. Co., 83 N. Y. 7, 14;. Tiffany v. St. John, 65 id. 314, 317; Baylies’ Tr. Pr. 224.) There was ample evidence of negligence on defendant’s part to warrant the submission of this case to the jury. (Benzig v. Steinway, 101 N. Y. 547, 552; Laning v. N. Y. C. R. R. Co., 49 id. 521; Corcoran v. Holbrook, 59 id. 517; Slater v. Jewett, 85 id. 61; Pantzar v. T. F.M. Co., 99 id. 368; Byron v. S. P. Tel. Co., 26 Barb. 39.) The fourth request to charge applied to the plaintiff, a boy of tender years, the rigid rule of responsibility applicable to adults and persons of wide general experience. This is not the law. (Byrne v. N. Y. C. & H. R. R. R. Co., 83 N. Y. 620, 621; Sheridan v. B. C. & N. R. R. Co., 36 id. 39; Thurber v. H. B. M. & F. R. R. Co., 60 id. 326, 332; McGovern v. N. Y. C. & H. R. R. R. Co., 67 id. 417, 421; Reynolds v. N. Y. C. & H. R. R. R. Co., 58 id. 248; Barry v. N. Y. C. & H. R. R. R. Co., 92 id. 289, 294; Pease v. Smith, 61 id. 477, 484; Polar v. N. Y. C. R. R. Co., Id. 476, 483.) There was no error in declining to charge defendant’s request. It is unquestionably the duty of the court to instruct the jury on each proposition of law submitted to him by counsel bearing upon the evidence. (Chapman v. McCormack, 86 N. Y. 482; Zabriskie v. Smith, 13 id. 322, 338; Foster v. People, 50 id. 598, 601; Wilds v. H. R. R. R. Co., 24 id. 439; Owen v. H. R. R. R. Co., 35 id. 516; LeRoy v. P. F. Ins. Co., 39 id. 56.) Exceptions taken en bloc are not available. (Smedis v. B. & R. B. R. R. Co., 88 N. Y. 16, 23; Baylies’ T. Pr. 240, 241.)</p>

<p>Appeal from judgment of the General Term of the Supreme Court in the second judicial department, entered upon an order made December 13, 188J, which affirmed a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term.</p> <p>This action was founded upon the alleged facts that Catharine Mason held, as trustee for the plaintiff, $1,050, and, without her knowledge and consent, gave that- money to the defendant, who received it with knowledge that it was so held by Catharine, and that he liad refused to pay the same over to plaintiff.</p> <p>The material facts are stated in the opinion.</p> <p>The $2,100 was the property of defendant, and is successfully traced as such. (Newton v. Porter, 69 N. Y. 133.) It was error to receive the testimony of Kate Mason, under objection, for the purpose of showing a trust. (Redfield v. Redfield, 110 1N. Y. 671; In re Smith, 95 id. 526.) In no event was anything more than a joint tenancy created. (2 Kent’s Comm. 419 ; White v. Osborn, 21 Wend. 72.) There is a special equity in favor of this appellant springing out of the relation between mother and son. (Story’s Eq. Juris. § 309; Taylor v. Taylor, 8 How. [N. S.] 200; Hill on Trustees, 224; Hoghton v. Hoghton, 15 Beav. 278, 305 ; Archer v. Hudson, 7 id. 551; Baker v. Bradley, 7 DeG., M. & G. 597; Berdoe v. Deuron, 11 Jur. [N. S.] 255; Bury v. Oppenheim, 26 Beav. 594.) The relation between mother and son was fiduciary. (In re Hallet, L. R. [13 Ch. Div.] 709.) The legal title stands for nothing against equitable rights. (Hooley v. Gieve, 9 Abb. [N. C.] 8; 82 N. Y. 625.) Even if the appellant made his mother his banker, it did not change his equitable ownership. (In re Hallet, L. B. [13 Ch. Div.) 710, 727; Silsbury v. McCoon, 5 N. Y. 380; Day v. Both, 18 id. 448; Newton v. Porter, 69 id. 133; Hooley v. Gieve, 82 id. 625 ; 9 Abb. [N. C.] 8; Pennell v. Deffell, 4 DeG., M. & G. 372.) The appellant is a purchaser for a valuable consideration, without notice. (Perry on Trusts, § 185; Story on Cont. § 440; Story’s Eq. Juris. §§ 131, 132.)</p> <p>The Trial Term having found the facts in the case against the defendant, and that finding having been affirmed by the General Term, this court Will not consider the questions of fact further than to see if there is sufficient evidence to support the findings of fact. (Qumby v. White, 63 N. Y. 370; Baldwin v. Doying, 114 id. 452; Hynes v. McDermott, 91 id. 451.) The defendant’s theory that the money in question was the result of his earnings has no foundation in fact, and was properly disregarded by the learned judge below. (Elwood v. W. U. T. Co., 45 N. Y. 549; Wohlfahrt v. Beckert, 92 id. 490; Sipple v. State, 99 id. 284.) There is no statement in the case that all the evidence given upon the trial is - contained' therein, and this being so, the question of fact will not be reviewed here. (Porter v. Smith, 107 N. Y. 531.) There was no error prejudicial to defendant committed upon the trial in permitting the witness Kate Mason to testify as to the transaction between Bridget Prendergast and the plaintiff. (Ward v. Kilpatrick, 85 N. Y. 413 ; Mead v. Shea, 92 id. 122; Code Civ. Pro. § 829.) Where evidence is excluded upon a mere general objection the ruling will be upheld upon ajjpeal if any ground and fact exist for the exclusion. (Tooley v. Bacon, 70 N. Y. 34; In re N. Y. C. & H. R. R. R. Co., 90 id. 342; King v. Whaley, 59 Barb. 71; Apthorp v. Comstock, 2 Paige, 482.)</p>

This action was to recover the value of a quantity of hides. Plaintiffs claimed title on the ground that the hides were-bought by their agent, and with their money. Defendants claimed under a bill of sale given by said agent as security for a present loan of money.

The. nature of the action and the facts are sufficiently stated in the opinion. The unanswered letters of July twenty-first, twenty-third, thirtieth and of August eighth, were improperly admitted. They were not part of the transaction in such sense as to make them admissible, (Tillotson v. Learned, 97 N. Y. 1.) A broader rule, of damages was permitted than can be fairly supposed to have entered into the contemplation of the parties.

This action was founded upon a written obligation, of which the following is a copy: “ Know' all men by these presents: That we, Bichará H. Cornwell, Joseph S. Spinney and Stephen Crowell, all of the city of Brooklyn, are held and firmly bound unto the Fourth Kational Bank of the city of Kew York, in the sum of $5,000, current money of the United States of America, to which payment well and truly to be made, we bind ourselves jointly and severally; and each of our heirs,…

This action was brought to recover damages from the ■defendant on account of its failure to fence its track as required by law, whereby, as it is alleged, two horses belonging to the plaintiffs were run over and killed by a train of cars, operated by the New York and New England Railroad Company, while running upon said track pursuant to a contract for the joint use of the same by the two companies.

This action was brought to recover damages from the defendant on account of its failure to fence its track as required by law, whereby, as it is alleged, two horses belonging to the plaintiffs were run over and killed by a train of cars operated by the New York & New England Railroad Company, while running upon said track, pursuant to a contract for the joint use of the same by the two companies.

This was an action on a written instrument whereby the defendant promised to pay to the plaintiff, a religious corporation, the sum of $500. The answer alleged that the promise to pay, contained therein, was made without any consideration, good, valuable or otherwise, and that it is of no force or effect.

This action was brought for the partition of certain land situated at Hunter’s Point, in Long Island City, and fronting on East River opposite the city of Hew York. The plaintiff alleged title in herself to two undivided fifth parts of the premises, which came to her by descent from Charles H. Jones, her father, who died intestate in 1882.

Between December 31, 1883, and February 19, 1884, the plaintiff sold and delivered barrels and kegs at the agreed price of $1,015 to the Kew York Brewing Company (a corporation incorporated prior to January 1, 1883, under chapter 40 of the Laws of 1848, and the acts amendatory thereof and supplementary thereto), for which it gave the plaintiff its promissory note, dated February 19, 1884, and payable three months after date, which remains unpaid.

favor of plaintiff entered upon the verdict of a jury. The nature of the action and the material facts are stated in the opinion. The rule that the calling for the production of papers and inspecting them makes them evidence does not obtain in the state of New York. (Abb. Tr. Br. 89; Kenny v. Van Horn, 1 Johns. 394; Stalker v. Gaunt, 12 N. Y. Leg.

The action- was brought to set aside two deeds, one from plaintiff to defendant Adams and one from the latter to defendant Aldridge, which transferred certain real estate in the city of Brooklyn from the plailitiff to said defendant Aldridge, who was plaintiff’s husband.

<p>Appeal from judgment of the General Term of the Supreme Oourt in the fourth judicial department, entered imon an order made November 9, 1886, which affirmed a judgment in favor of defendants entered upon a decision of the court on trial a^ Special Term.</p>

The following is the opinion herein in full: “This action was originally brought against LIugh J. Jewett, as receiver of the Erie Railway Company, to recover a balance due for services rendered under a contract of employment. The answer denied the employment and alleged that Jewett had been discharged from his receivership • more than sixty days before the action was commenced. The case was referred to a referee and the trial commenced.