Volume 122 — New York Reports

<p>Appeal from order of the General Term of the Superior 'Court of the city of New York, made May 12, 1887, which reversed a judgment of the Special Term dismissing the complaint on the merits and which granted a new trial.</p> <p>This action was brought in November, 1883, to recover damages to plaintiff’s property on Pearl street in the city of New York, alleged to have been caused by the erection and operation by defendants of an elevated railroad in said street; also to restrain the defendants from maintaining or operating the road, and to compel them to remove it.</p> <p>"When the inhabitants of the island of Manhattan were governed by the United Provinces a public highway was opened pursuant to the laws then and there existing, which way, so far as it appears, had no name, but was a country' road, and so remained until the authority of the British government was established on said island. After New York became, a British colony, the highway was called Queen street, and when it became a state, the way was known as Pearl street, • by which name it is now designated. In front of the plaintiff’s premises the street is forty-one feet wide between the house lines, but whether its exterior lines at and near this point coincide with those of Queen street and of the ancient highway does not appear. Since January 2, 1865, the plaintiff has been the owner, in fee and in possession, of a lot on the south side of this street which is about twenty feet wide, and about ninety feet deep, on which a brick building has stood for more than fifty years, and is known as number 280. There is no other street or public way by which this lot can be reached.</p> <p>In 1871 the ¡New York Elevated Eailroad Company was incorporated under the General Eailroad Law of this state, and in 1875 the Manhattan Eailway Company was incorporated pursuant to chapter 606 of the Laws of 1875. During the winter of 1877 and 1878 the first-mentioned corporation built an elevated railroad in this street and in front of the plaintiff’s lot; which road, in August, 1878, opened for business and was operated by that corporation until May 20,1879, since which it has been operated by the Manhattan Elevated Eailroad Company under a lease from its owner. The railroad, and its relation to the plaintiff’s property, is described in the findings of fact (which description is not questioned) as follows : “ Pearl street, in front of plaintiff’s said premises, is forty-one feet wide between the house lines ; and the side■walk is from nine feet eight inches to nine feet eleven inches wide. The elevated railroad structure, erected as aforesaid in front of these premises, consisted of a double row of hollow-latticed iron columns, set about opposite each other in the edges of the sidewalk, on each side of the street, at intervals along the street of about forty feet, each column being fifteen inches square, standing on an iron plate about eighteen inches square, supported by a foundation of stone, brick, etc., beneath the surface of the ground, about eight feet deep, and six feet square, and said pairs of columns being connected, at a height of about sixteen feet above the street, with open-work iron cross girders, about twenty-two feet six inches long, three feet deep, and one foot wide on top, upon which, along the street, were placed four open-work iron longitudinal girders, about three and one-half feet deep and one foot wide on top, on which were laid, at a height of about twenty-two feet above the street, two railway tracks, consisting of iron rails placed upon wooden ties or sleepers, said rails being laid in parallel lines about four feet eight and one-half inches apart, and- said sleepers being about eight feet long, and eight inches wide, and six inches thick, and placed with open intervals, from sleeper to sleeper, of sixteen inches; the said tracks were laid seven feet three and one-half inches from each other, and just outside each iron rail was placed a wooden guard-rail, parallel with the rails; said guard-rails being about eight inches high and six inches wide. Between the tracks is a narrow plank walk-way. The said upper structure was made of open iron-work with cross braces.</p> <p>“ The building on plaintiff’s said premises was erected upwards of fifty years ago. It is a'brick building, four stories high, twenty feet wide, about sixty feet deep, and measuring forty-three feet two inches in height from the sidewalk to the cornice line.. The nearest rail of the elevated railroad is ten feet and six inches from the face of said building; the nearest portion of the upper structure of said railroad is about seven feet six inches from the face of said building. The level of the tracks is a little above the second-story windows. One of said iron columns stands in the edge of the sidewalk, opposite the westerly wall of plaintiff’s said building, so that the westerly line of plaintiff’s said premises prolonged into the street would intersect the same, and leave about ten inches of .the width of said column east of said line; and the space between the south face of said column and the face of plaintiff’s said building at the nearest point is eight feet.” Neither defendant has acquired, or taken any steps to acquire, by agreement, or by condemnation, the right from the plaintiff to build, maintain or operate the railroad.</p> <p>The defendants, by their answers, deny that they have taken or impaired any of the rights of the plaintiff, and allege that he has acquiesced for five years in the construction and operation of the railroad.</p> <p>The trial court found as facts the following : “ The said railroad structure does not interfere with the air of plaintiff’s building or with access thereto, in any substantial degree.” “ That said structure is permanent, has and does fill a large portion of the space of said street in front of plaintiff’s said premises and seriously impairs his light; that said engines (those drawing the trains) omit smoke, gas, steam and cinders which, at .times, have and do enter the plaintiff’s premises through his doors and windows, and causes him injury ; that by reason of the facts aforesaid, the rental value of the plaintiff’s premises has been seriously diminished * * * and his property has been, and is permanently damaged and its value lessened.” “ That plaintiff’s north line is the south side line of .Pearl street.”</p> <p>The exceptions to the findings of fact and refusals to find are not available for any purpose. In the absence of a case containing the evidence, neither this court nor the General Term can say that a fact found was not proven, or that a fact which the court refused to find was proven. (Ferguson v. Hamilton, 35 Barb. 427; Douglas v. Douglas, 11 Hun, 406; Tomlinson v. Mayor, etc., 44 N. Y. 601, 605; Phillip v. Gallant, 62 id. 256, 265; Comstock v. Ames, 3 Keyes, 357, 360; Thompson v. Bank, 82 N. Y. 1; Burnap v. Bank, 96 id. 125, 131; Ins. Co. v. Barnard, 96 id. 525, 529; Stoddard v. Whiting, 46 id. 627.) Plaintiff’s right of action depends upon whether or not he owns any projDerty, private rights or easements in Pearl street or the soil thereof. (Story v. N. Y. E. R. R. Co., 90 N. Y. 143; Uline v. M. E. R. Co., 101 id. 106; Williams v. N. Y. C. R. R. Co., 16 id. 97; Mahon v. N. Y. C. R. R. Co., 24 id. 658; Plate v. N. Y. C. R. R. Co., 37 id. 472; Henderson v. N. Y. C. R. R. Co., 78 id. 423; Mahady v. B. R. R. Co., 91 id. 148; Radcliff v. Mayor, etc., 4 id. 195; Davis v. Mayor, etc., 14 id. 506; Bellinger v. N. Y. C. R. R. Co., 23 id. 42; kellinger v. F. S. S. R. R. Co., 50 id. 206; Lahr v. M. E. P. Co., 104 id. 268; Drucker v. M. E. R. Co., 106 id. 157; Pond Case, 112 id. 186.) Ho private easement or property right attaches to any lot abutting on the street, nor is any property right in the street, constituting private property, vested in any individual owner. (Heyward v. Mayor, etc., 71 N. Y. 314; B. P. Comrs. v. Armstrong, 45 id. 234; K. C. F. I. Co. v. Stevens, 101 id. 411; City of Brooklyn v. Copeland, 106 id. 496, 501; W. Cemetery v. R. R. Co., 68 id. 591, 598; Dunham v. Williams, 37 id. 251; People v. F. Co., 68 id. 71, 78; Mayor, etc., v. Hart, 95 id. 443, 458; Mayor, etc., v. Hopkins, 13 La. 326; Dermott v. State, 99 N. Y. 101, 107; Gould v. H. R. R. R. Co., 6 id. 522; Lansing v. Smith, 8 Cow. 146; G. Co. v. Calkins, 62 N. Y. 308; Pearsall v. Post, 20 Wend. 126; 2 R. L. of 1813, 414; Lahr v. M. E. R. Co., 104 N. Y. 268; Pesser v. M. E. R. Co., 12 Daly, 76.) Plaintiff has no private property or property rights in Pearl street. (Ins. Co. v. Barnard, 96 N. Y. 525.) Private rights in public property cannot be acquired by implication, for no intendment can be made against a state, or municipality, to divest it of its estate. This is especially the case where the claim to private property relates to what is known as the jus pubUci, or the rights which the sovereign holds in trust for the public use, such ás the supervision of public highways and the control of navigable rivers. (Dermott v. State, 99 N. Y. 101, 107; Langdon v. Mayor, etc., 93 id. 641; People v. N. Y., etc., F. Co., 68 id. 71; C. R. Bridge v. W. Bridge, 14 Pet. 544; Smith v. Lansing, 4 Wend. 28; 1 Hoffman’s Treatise [2d ed.], 311, 312.) It is well settled that no one can acquire private property, or rights, by prescription in a public highway; the use in such cases raises no presumption of a grant. (Wheeler v. Clark, 58 N. Y. 270; Burbank v. Fay, 65 id. 65; Gould v. H. R. R. R. co., 6 id. 541; Dunham v. Williams, 37 id. 251; B. P. Comrs. v. Armstrong, 45 id. 234; W. Cemetery v. R. R. Co., 68 id. 591, 592; K. C. F. I. Co. v. Stevens, 101 id. 411; Lahr v. M. E. R. Co., 104 id. 288; Mahady v. B. R. R. Co., 91 N. Y. 152; 92 id. 482, 483; 37 id. 253, 254; 1 Hoffman’s Treatise [2d ed.], 311, 312, 330; 1 Greenl. on Ev. 31; 3 id. 54; Mayor, etc., v. Hart, 95 N. Y. 443, 458; Dermott v. State, 99 id. 101, 107; People v. Newton, 112 id. 396, 399; Landon v. Mayor, etc., 93 id. 129; Bedlow v. Dry Doc Co., 112 id. 263, 280; B. P. Comrs. v. Armstrong, 45 id. 234; City of Brooklyn v. Copeland, 106 id. 502; Burbank v. Fay, 65 id. 65; Smith v. City of Rochester, 92 id. 463.) The decision of the General Term, reversing this judgment upon the ground that it was immaterial, for the purpose of this case, whether the plaintiff has, or has not, any interest in the fee of Pearl street in front of and adjacent to his premises, or any easement in the street; that the plaintiff is entitled to maintain this action, because smoke, gas, steam and cinders from the engines on the railroad at times enter the doors and windows of plaintiff’s premises and cause him injury; that an action lies for this injury, although it results' from the due use and operation of the railroad upon the route and in the manner intended by the legislature, and not from negligence or want of care and skill on the part of defendants, was error. (Uline v. M. E. R. Co., 101 N. Y. 98, 107; Badcliffe v. Mayor, etc., 4 id. 195; Davis v. Mayor, etc., 14 id. 506; Rex v. Pease, 4 B. & Ad. 30; Vaugham v. T. V. R. Co., 5 H. & N. 679; H. R. Co. v. Brand, 4 H. of L. Cas. 171; Collins v. R. R. Co., 5 Hun, 503; 71 N. Y. 609; Searls v. M. R. Co., 101 id. 661; Laws of 1875, chap. 606, §§ 1, 4, 26; Laws of 1867, chap. 489; Laws of 1868, chap. 855; Laws of 1875, chap. 595; In re N. Y. E. R. Co., 70 N. Y. 326; Isaacson v. R. R. Co., 94 id. 278, 284; Slater v. Jewett, 85 id. 61; Bank v. Hall, 83 id. 338; Yerkes v. Bank, 69 id. 383; E., etc., Co. v. Avery, 83 id. 31; Howard v. Moot, 64 id. 262; King v. Gallun, 109 U. S. 99; Denver v. Bayer, 7 Col. 113; Gottschulte v. R. R. Co., 14 Neb. 550.) A plaintiff seeking the aid of a court of equity, by injunction, must not be guilty of laches, or delay, in the assertion of his rights; for wdiile delay alone may not amount to proof of acquiescence in the wrong for which he seeks redress, it may yet suffice to prevent relief by injunction, and will do so, if the defendant has been in the meantime prosecuting the.work at large expense in the sight or with the knowledge of the plaintiff. And where, in addition to these facts, there is t jDroof of actual acquiescence, and especially where there is proof of affirmative participation, either in the prosecution of the work, or in the use of it when completed, no equitable relief will be granted, by injunction or otherwise. (Pom. Eq. Juris. § 817; High on Injun. §§ 7, 10, 618, 643, 731, 756, '797, 837, 884, 885, 926, 1278; N. A. R. R. Co. v. N. Y. E. R. R. Co., 3 Abb. [N. C.] 358, 368, 369; Hentz v. L. I. R. R. Co., 13 Barb. 655; Goodin v. C. R. Co., 18 Ohio St. 169; F. F. & B. Co. v. Dodge County, 6 Neb. 18; B. & O. R. Co. v. Strauss, 37 Md. 237; E. R. Co. v. D. R. Co., 6 C. E. Green, 283; Atty.-Genl. v. N. Y., etc., R. Co., 9 id. 49, 56, 58; Pickert v. R. P. R. Co., 10 id. 316; Atty.-Genl. v. D. & B. B. R. Co., 12 id. 1; Varney v. Pope, 60 Me. 192; B. C. Co. v. Lloyd, 18 Ves. 515; Wood v. Sutliffe, 2 Simons, 163; R. C. Co. v. King, id. 78; 2 Wood’s Bailroad Law, 792; Duke of Leeds v. Duke of Amherst, 2 Phil. Ch. 117, 123; McAulay v. W. V. R. R. Co., 33 Vt. 321; Kittle v. M. R. Co., 56 id. 109; M. R. Co. v. Smith, 113 Ind. 233; U. S. v. G. F. M. Co., 112 U. S. 645, 656; Harlow v. R. R. Co., 41 Mich. 336; Pettibone v. R. R. Co., 14 Wis. 443; Nicholson v. R. R. Co., 22 Conn. 74; Bradley v. Aldrich, 40 N. Y. 504; Stevens v. Mayor, etc., 84 id. 296.)</p> <p>All public streets in the city of Hew York are held by the ■city in trust for the public and the owners of land abutting thereon. In -consequence of the tenure by which" the city holds the streets, and of necessity, the owners of land abutting ■on such streets own easements in the streets of light, air and ■access which are appurtenant to, and form an integral part of the abutting property. -(1 Greenl. on Ev. 31, § 14; Laws of 1873, chap. 42; 3 Greenl. on Ev. 52; N. Y. E. Bank v. M. E. R. Co., 108 N. Y. 660; Laws of 1813, chap. 186; Lahr v. M. E. R. Co., 104 N. Y. 268; Story v. N. Y. E. R. Co., 90 id. 122, 157; People v. Newton, 112 id. 405; Dunham v. Williams, 37 id. 251.) By the dedication of a street as a public street the legislature and the municipality relinquished all special rights, if any such ever existed, and are estopped from asserting the absolute control of such street. (Curnen v. Mayor, etc., 79 N. Y. 511, 514.) The payment of assessments levied for the maintenance and improvement of a public street imposes a trust- upon the municipality that such streets shall be used for no purposes inconsistent with the use of the .same as a public street, and gives to the abutting owner certain rights in the street. (Hassan v. City of Rochester, 67 N. Y. 520, 533; Lahr v. M. E. R. Co., 104 id. 268, 290; Carter v. N. Y. E. R. Co., 14 N. Y. S. R. 859.) Private rights appurtenant to land abutting upon any public street are necessarily implied in the existence of such streets. (N. Y. Const, art. 1, § 6; 1 Black. Com. 138; 2 Kent’s Comm. 320, 326; City of Denver v. Bayer, 7 Col. 113; Story v. N. Y. E. R. Co., 90 N. Y. 122, 179; Mahady v. B. R. R. Co., 91 id. 148, 153; Lahr v. M. E. R. Co., 104 id. 268, 291; Hussner v. B. C. R. R. Co., 114 id. 433, 437; In re N. Y. E. R. R. Co., 70 id. 327, 354, 360.) The construction, maintenance and operation of the elevated railroad in Pearl street imposed upon the plaintiff’s premises a new and additional burden, and •created, as to the plaintiff, a private nuisance. (B. & P. R. R. Co. v. F. B. Church, 108 U. S. 317; Cogswell v. N. Y., N. H & II. R. R. Go., 103 27. Y. 10; Gardner v. Trustees, etc., 2 Johns. Oh. 162; In re JY. Y. E. R. R. Go., 70 27. Y. 327, 354, 360; Lahr v. M. E. R. Go.', 104id. 293.) The occupation and use of the property of an individual by a railroad corporation is a wrongful act, and constitutes in the operation of the road a continuing nuisance which no lapse of time will justify. A court of equity at any time will interpose and will grant relief. (Corning v. T. I. & N. Factory, 40 N. Y. 191, 206; Uline v. N. Y. C. & H. R. R. R. Co., 101 id. 98, 106, 116, 123; Pond v. M. E. R. Co., 112 id. 186; Shepard v. M. R. Co., 27 N. Y. S. R. 705, 708.) The order and judgment of the General Term should be affirmed, and judgment absolute be directed against the defendants.. The direction should grant to the plaintiff the judgment demanded in the complaint. (Code Civ. Pro. § 191, subd. 1; Godfrey v. Moser, 66 N. Y. 250, 253; Hiscock v. Harris, 80 id. 402.)</p> <p>England acquired title to Manhattan, island by right of original discovery, i. e., by the voyages and discoveries of John and Sebastian Cabot in 1497 and 1498, perfected by taking possession and continued by assertion of ownership. (Johnson v. McIntosh, 8 Wheat. 543; Worcester v. State of Georgia, 6 Pet. 549.) Holland acquired no title, therefore, by the discovery of Hudson, and had none until it acquired it by conquest in 1673, and this, by the treaty of Westminster, was transferred in 1674 to the king of Great Britain. The Dutch West India Company acquired no title by purchase from, the Indians, as the latter had no title which they could grant. (Martin v. Waddell, 16 Pet. 367; Town of Southampton v. M. B. Oyster Co., 116 N. Y. 7.) As England acquired title by discovery, not by conquest, the common law, not the civil law, became the fundamental law of the province. (Canal Company v. People, 5 Wend. 445; Mortimer v. N. Y. E. R. R. Co., 6 N. Y. Supp. 898.) The court will take judicial notice of the facts as to title established by history. (Hunter v. N. Y, O. & W. R. R. Co., 116 N. Y. 615.)</p> <p>The plaintiff, as abutting owner, has an interest in the street which entitles him to compensation. (Story v. N. Y. E. R. Co., 90 N. Y. 149; Lahr v. M. E. R. Co., 104 id. 287; Pond v. M. E. R. Co., 112 id. 188; Hussner v. B. E. R. Co., 114 id. 437; Mahady v. Bushwick R. R. Co., 91 id. 153; Kane v. N. Y. E. R. Co., 25 N. Y. S. R. 587; Mortimer v. N. Y. E. R. Co., 6 N. Y. Supp. 898; Hine v. N. Y. E. R. Co., 7 id. 464; Jewett v. U. E. R. Co., 15 N. Y. S. R. 878; Methodist Church v. Brooklyn, 46 Hun, 532; Milburn v. Foster, 27 id. 568; Caro v. M. E. R. Co., 14 J. & S. 165.) There was no question at the time of the decision of the Story case that abutting owners had some interests in the streets, and that: whenever they suffered special damage different from what owners on other streets suffered, they had a right of action, (Callanan v. Gilman, 107 N. Y. 365; Cohen v. Mayor, etc., 113 id. 352.) Similar easements have been held to be protected by the Constitution. (Langdon v. Mayor, etc., 93 N. Y. 129; In re E. Ave., 81 id. 436; Sixth Ave. v. Kerr, 12 id. 330; Briesen v. L. I. R. R. Co., 31 Hun, 112; 103 N. Y. 645; Cogswell v. N. Y., N. H. & H. R. R. Co., Id. 10; Lahr v. M. E. R. Co., 104 id. 293; B. & P. R. R. Co. v. F. B. Church, 108 U. S. 317.) An easement is created as to streets in the city of Mew York by the Dongan charter and the act of March 1,1193. (N. Y. N. E. Bank v. M. E. R. Co., 21 J. & S. 501; 108 N. Y. 660; Lahr v. M. E. R. Co., 104 id. 268; Story v. N. Y. E. R. Co., 90 id. 144; City v. Oswego, 6 id. 625; Livingston v. Mayor, etc., 8 Wend. 99; Wiggins v. Cleary, 49 N. Y. 348; Cox v. James, 45 id. 559; Taylor v. Hopper, 62 id. 649; In re E. Ave., 81 id. 446; Coe v. Bearup, 14 W. D. 256.) The plaintiff is clearly entitled to-an injunction as- to the smoke, cinders, etc. (Cogswell v. N. Y., N. N. & H. R. R. Co., 103 N. Y. 10; Brieson v. L. I. R. R. Co., Id. 645; 2 Bliss’ Code Notes, 100, 183.) It is immaterial who owns the soil of the highway. (City of Denver v. Bayer, 7 Col. 113; Omaha v. Rogers, 16 Neb. 117; Spencer v. Point Pleasant, 23 W. Va. 407; Barney v. Keokuk, 94 U. S. 324, 342; Street R. v. Cumminsville, 14 Ohio St. 541; Cooley on Const. Lim. 556; 74 Ind. 29; 47 Mich. 393; 29 Minn. 45; 24 N. J. L. 592; 58 Ohio, 41; 7 Atl. Rep. 146; 32 Am. & Eng. R. Cas. 251-256.)</p>

This action was brought to recover damages for the maintenance by defendant of an alleged nuisance upon its premises and to restrain its continuance.

This action was upon a written agreement whereby the defendants, under their firm name of “ William P. Clyde & Co.,” guaranteed to the plaintiff a dividend of not less than seven per cent per annum for seven years from July 1, 1874, upon certain shares of stock, which, as it was stipulated, were to be issued to him by a corporation about to be formed by the parties.

This action was brought under section 1663 of the Code of Civil Procedure, to determine the title to real estate in the city of Mew York. Eliza Anderson, a native born citizen of the' United States, died in the year 1867 seized and possessed of the property in question, leaving a last will and testament, by which she devised the said premises to her niece Eliza Anderson for the term of her natural life, remainder in fee to her lawful issue.

This action was brought upon the contracts of the defendant contained in several certificates of sales by its collector of taxes and assessments, of certain lands in the city of Brooklyn, made in 1860, 1861, 1862, 1863 and 1864, for taxes assessed upon them from 1851 to 1862 inclusive. The certificates are held by the plaintiffs.

<p>An exclusive proprietary interest cannot be-acquired in a word which is a generic term, in common use and in its nature descriptive of and ordinarily characterizes the business to which it pertains rather than its origin or proprietorship.</p> <p>Nor is such a word or term capable of exclusive appropriation as a trademark, because it is arbitrarily applied to a different business than that in which it is ordinarily used, and is not suggestive of the real nature of the business carried on.</p> <p>Equity will not grant relief for the protection of the exclusive use of a misrepresentation by means of such a term, when it may tend to deceive and mislead the public, and so induce custom.</p> <p>So, also, a name adopted as a partnership name, which merely indicates a business in which the firm purports by it to be engaged, may not be protected as a trade-mark...</p> <p>Congress & Empire SpHng Co. v. High Bock Congress Spring Co. (45 N. Y. 291); Smith v. Sixbury (25 Hun, 232); Qillott v. Esterbrook (48 N. Y. 374); SeXehow v. Baker (93 id. 59); Hier v. Abrahams (82 id. 519), distinguished.</p> <p>Plaintiffs were partners in the business of dealing in foreign government bonds in the city of New York, which was done under the firm name of “International Banking Company.” Their firm and the one to whose business it succeeded had been engaged in the business under the same firm name since 1874. Defendants, who were engaged as partners in the same business under the firm name of E. S. & Co., in an advertisement published by them in 1887, requested the public to “ call on the International Bank” of E. S. & Co. In an action brought to restrain the use by defendants of the words “ International Bank ” in their advertisements, held, that plaintiffs had no exclusive proprietary interest in the ' use of the words; and that the action was not maintainable.</p>

<p>Where, upon inspection óf a written contract, read it may be, in the light of surrounding circumstances, it appears to contain the entire engagement of the parties, and to define the object, and measure'the extent of such engagement, it constitutes and is presumed to contain the whole contract, and cannot be varied by parol.</p> <p>In an action for an alleged breach of contract of sale on the part of the vendee in refusing to accept the goods, it appeared that the contract was made by defendants, who were merchants, with plaintiff’s assignors, who were manufacturers of the goods in question, through brokers, and was evidenced by a bought and sold note, signed by the brokers, which set forth the quantity of goods sold, the price, the time of payment, and the time of delivery. Defendants were allowed to prove, under objection and exception, that this note was sent to them with a letter from the brokers which contained a promise that the vendor would advance • the price of the goods, that the brokers represented that said assignors would issue a circular to that effect, and that the promise was not performed. At the close of defendants’ case the court held that the proof did not make out a defense; and directed a verdict for plaintiff. Held, no. error.</p>

This action was brought in said County Court to reform, and foreclose as reformed, a mortgage dated March 14, 1881, executed by the defendant Harriet E. Harmon to Jerome 0. Guiteau, as treasurer of Genesee county, to secure the pay. ment of $350 in two years, with semi-annual interest, according to the condition of a bond accompanying the same.

This action was brought to recover damages for injuries received by plaintiff while boarding one of defendant’s trains. The facts, so far as material, are stated in the opinion.

This action was brought on the 17th of May, 1884, to recover the damages sustained by the premises No. 104 West Third street, then owned by the plaintiff, for a period of six years preceding such date, resulting from the impairment of the appurtenant easements of light, air and access in said street by the construction, maintenance and operation of the defendants’ elevated railroad.

The nature of the action and.the facts, so far as material, are stated.in the opinion. There was never any dedication of the so-called streets by the owners, so far as they are claimed to exist upon the land described in the complaint.

This action was brought to recover the damages sustained by the burning of plaintiffs’ vessel. The ground assigned for the defendant’s liability was that the injury was wholly due to defendant’s negligence. The defendant at the time of the burning owned and managed a petroleum refinery on Mewton creek in the county of Kings. And the plaintiffs’ vessel was lying at the wharf next adjacent thereto.

This action was brought upon a. certificate issued by defendant, a co-operative insurance corporation, organized under chapter 175 of the Laws of 1883.

The nature of the action and the facts, so far as material, are stated in the opinion. “ Parsons, Cashier,” had power to bind the defendants, if the latter had power to do the act, or was estopped from denying such power.

favor of plaintiff entered upon the report of a referee. This action was to foreclose a mortgage upon real estate in the city of Buffalo, and made by the defendant Mary A. Ensign to Truman C. White, to secure the payment of $2,500 and interest, and by said White assigned to the plaintiff. The material facts were as follows: Charles Ensign died insolvent, seized of the property in question, and by his will devised the same to his wife, the defendant Mary A. Ensign, for life.

trial and granted a new trial. The nature of the action and the material facts are stated in the opinion. Ho question was before the General Term but questions of law based upon the exceptions. (Hinman v. Stillwell, 34 Hun, 180; Stedman v. Batchelder, 28 N. Y. S. R. 437.) The plaintiff was in possession by virtue of his own right as a tenant in common.

This action was brought to foreclose a mortgage given by the defendant William H. J. Bodine to Albert Bodine, and by him assigned to the plaintiff. The defense interposed was that the mortgage was wholly without consideration, of which fact the plaintiff had full knowledge, prior to the assignment thereof to him.

This action was to foreclose a mortgage. The Manufacturers and Traders’ Bank was a banking association organized under the state laws, engaged in business at Buffalo, and the Miagara Falls Paper Manufacturing Company was organized under the General Act of 1848 relating to manufacturing corporations.

General Term of the Supreme Court in the fifth judicial department, made November 11, 1887, which affirmed an order of the Special Term, so far as it. directed the payment of $41,099.88 to the Importers and Traders’ National Bank, and $9,277.53 to Henry 0. Hulbert, as hereinafter stated.

The nature of the proceeding and the facts, so far as material, are stated in the opinion. The board of managers had no authority and no jurisdiction to institute an inquiry into and to try before themselves the question of the validity or regularity of the previous election of one of its members, and its action in so doing was, therefore, illegal and is of no effect. (Code Civ. Pro. § 1948; 1 E. S. tit. 4, chap. 18, § 5; H. R., etc., Co. v. Kay, 14 Abb.

Cross appeals from a judgment of the General Term of tly3 Supreme Court in the fifth judicial department, entered upon an order made at the March term, 1887, which modified a judgment entered upon the decision of the court on trial at Special Term. Action to foreclose a trust deed in the nature of a mortgage executed by a railroad company to secure the payment of its bonds.

The nature of the action and the facts, so far as material, are stated in the opinion. The only question presented for the consideration of the court is, did the injunction order suspend the operation of the Statute of Limitations ? If not the plaintiff must fail, otherwise the judgment must be reversed. (Code Civ.

<p>Under the provision of the charter of the city of Rochester (§ 170, chap. 14, Laws of 1880), directing that so much of the expense of a local improvement as the common council shall determine should be paid by a local assessment, be “ assessed on all the lots and x>arcels of land to be benefited thereby, in proportion to the benefit each will derive therefrom,” and authorizing that body to designate the portion of the city it shall deem benefited, the commissioners of assessment are bound to assume that every separate piece of real estate within the designated territory derives some'benefit and to assess the'same in proportion to such benefit; they have no authority to modify the determination of the common council.</p> <p>In an action to set aside an assessment upon plaintiff's lot in said city for a local improvement, it appeared that the common council, by the ordinance directing the assessment, designated the portion of the city it deemed would be benefited, commanded the commissioners of assessment to make the assessment upon all the lots and parcels of land and houses within that portion "in proportion, as nearly as may be, to the advantage which each shall be deemed to acquire by the making of said improvement.” The commissioners divided the designated territory into two districts, one of which they decided would receive a special and the other only a general benefit from the improvement, and ii assessing the latter they adopted a totally different rule from that adoptee in assessing the former. Plaintiff’s lot was in the subdistrict whicl they decided to be specially benefited. Held, that the assessment wai void, as the effect of the action of the commissioners was to contrac the area oí special benefit as determined by the common council, and S( was illegal; and that, as presumptively the assessment upon plaintiff’! lot was increased by such unauthorized action, he was entitled to main tain the action.</p>

Justice Kennedy at Chambers, dismissing a writ of habeas corpus, “without prejudice to future proceedings.” The relator was the testamentary guardian of Terzah G. Bigelow, the infant daughter of Lyman E. and Melitta H. Bigelow, who, at the commencement of these proceedings, was between seven and eight years of age.

report of a referee. This was an action to recover for the support of a pauper. The material facts are stated in the opinion. The referee erred in holding that this action was barred. (3 B.. S. 1865, §§ 58, 59, 60, 61, 62; Laws of 1855, chap. 546; Coleman v. McClure, 47 Barb. 206, 210; Rathbun v. Acker, 18 id. 393; McDermott v. Bd. of Police, 25 id. 635, 636; People v. L. & B. R. R. Co., 13 Hun, 211; Marcle v. Saltzman, 66 How.

This was an action upon a policy or certificate of insurance issued by the defendant. On May 22, 1882, the defendant, in consideration of $16 paid by Alexander M. Kenyon and of the representations made by his application for membership, and subject to the provisions of the by-laws indorsed upon it, delivered to him its insurance certificate, whereby it promised to pay to his heirs $5,000, or such portion thereof as is provided for in such by-laws.

The complaint in this action contained two counts, one upon a promissory note, the other for goods sold and delivered. So much of the judgment as embraces the amount found to be due for goods sold and delivered was not questioned. The appellant assigned for error that portion of the judgment which includes the amount adjudged to be due on the note, on the ground that it is barred.by the Statute of Limitations. The note became due and payable May 20, 1880.

<p>A municipal corporation possesses not only the powers specifically conferred upon it by its charter, but also such as are necessarily incident to, or may be fairly implied from those powers, including all that are essential to the declared object of its existence.</p> <p>An. ordinance adopted by such ■ a corporation pursuant to authority delegated by the legislature has the same force within the corporate limits as a statute passed by the legislature itself.</p> <p>It seems, where the power to legislate is general or implied, and the manner of exercising it is not specified there must be a reasonable use of such power.</p> <p>Plaintiff’s trustees are authorized by its charter to enact ordinances, among other things, to prevent incumbering the sidewalks with any substance or material whatever; to provide for keeping them clear from snow, ice, dirt and other obstructions; to direct the sweeping and cleaning of streets by the persons owning or occupying the premises fronting thereon “and generally the said trustees” are empowered to pass such ordinances “not inconsistent with the laws of the United States and of this state as may be necessary and proper for carrying into effect the purposes of said corporation, and the powers and privileges granted ” by said act, and not inconsistent therewith; “and for the enforcement of such by-laws, ordinances, rules and regulations,” they are authorized to prescribe penalties for violations thereof. (Chap. 884, Laws of 1869). Said trustees passed an ordinance declaring it to be unlawful for persons owning, occupying or having charge Of any premises within</p> <p>• the village to allow snow, ice, or other substance to collect and remain on any sidewalk fronting on, or belonging to, said premises so as to impede, obstruct, or render dangerous, public travel upon such walks later than 10 A. m., after it had fallen or collected thereon, or for more than two hours after having been notified by the yillage authorities to remove the same. In an action to recover the penalty prescribed by the ordinance for a violation thereof, held, that the trustees had power under the charter . to pass the ordinance; that it did not conflict with the constitutional provision prohibiting the taking of private property for public use without just compensation (State Const, art. 1, § 6); but that it was a proper exercise of police power; and so, that plaintiff was entitled to recover.</p> <p>Oridley v. City of Bloomington (88 111. 554), disapproved.</p> <p>The authorities upon the question as to what is a proper exercise of police power collated.</p>

<p>1. Appeals.—For the purpose of a review in the court of appeals, the findings and determination of the court helow must be deemed conclusive where the claim and evidence on the part of one party are disputed by the evidence on the part of the other party.</p> <p>2. Trial. Affirmative.—The rule that the party who has the affirmative of the issues in an action shall have the opportunity to make the opening and. closing presentation of this case, has ordinarily more practical importance in its application to trials by jury than in those before the court without jury and before referees; and in the latter ' case, the question is dependent upon the circumstances of each case.</p> <p>3. Same.—The issues of fact, as ascertained by reference to the pleadings, must govern so far as relates to the right of the parties to open the case at the beginning and conclude the argument at the close of the trial. The admission of a fact upon the trial is evidence merely, and does not change the issue as represented by the pleadings.</p> <p>4. Same.—If the defendant wishes to obtain the right of opening and concluding the trial, he must frame his pleading with that view, and so as to present no issue upon any allegation of the complaint essential to the plaintiff’s alleged cause of action. The test is whether, without any proof, the plaintiff upon the pleadings is entitled to recover upon all the causes of action alleged in his complaint.</p>

The nature of the action and the material facts are stated in the opinion. A municipal corporation -cannot levy assessments upon private property for contemplated improvements, collect the money and then refuse or neglect to return any consideration for the property taken from the pockets of the unfortunate land owner.

The nature of the action and the facts,, so far as material, are stated in the opinion. The instrument in question is a special, not a general guaranty. (Whitney v. Groot, 24 Wend. 81; Birkhead v. Brown, 5 Hill, 634; Barns v. Barrow, 61 N. Y. 39; Daniels on Reg.

This action was brought to recover damages alleged to have been caused by fraudulent misrepresentation. The complaint- alleged in substance the following facts: Plaintiffs, for some years prior to June 30,1886, were engaged in trade between the city of New York and the Central American states and owned various warehouses and other property at Corn island, within the jurisdiction of the Mosquito government, at which point one Nelson was their agent.

The nature of the action and the facts, so far as material, are stated in the opinion. The defendant is bound only by the lease delivered to him. (2 Pars, on Cont. 18, 19.) The contract was entire. (2 Pars, on Cont. 163; Roberts v. Beatty, 2 Penn. 63; Champlin v. Rowley, 13 Wend. 258; Mead v. DeGolyer, 16 id. 632; Paige v. Ott, 5 Den. 632.) The court should have permitted evidence of the nature of the infection in the house.

On the 29th of January, 1881, the defendants, then and now husband and wife, executed, and June 1, 1881, recorded in the office of the cleric of the city and county of New York a certificate by which they assumed to form a limited partnership pursuant to the ¡Revised Statutes for the purpose of importing and dealing in foreign goods at the city of New York under the firm name of “ George Caffe,” -which was to continue from February 1, 1881, to February 1, 1886.

The nature of the action and the facts, so far as material, are stated in the opinion. If a senior judgment-creditor redeem lands sold on a junior judgment, the senior judgment is not satisfied or affected in any manner.

The nature of this action and the facts, so far as material,, are stated in the opinion. An easement in “ The-Ramble ” was created both by -way of grant and by way of estoppel. (2 Kent’s Comm. 540; Washb. on Eas. [4th ed.] chap. 1, § 5; 2 Dillon on Mun.

<p>Prior to the enabling act of 1879 (Chap.' 248, Laws of 1879), a married woman who had a child or any issue of a child living, had no power to assign a policy of insurance issued pursuant to the act of 1840 (Chap. 80, Laws of 1840), upon the life of her husband, for her benefit, during the life of her husband. The act of 1873 (Chap. 821, Laws of 1873) simply authorized an assignment of such a policy where the beneficiary had no child or issue of any child living.</p> <p>The beneficiary is not estopped from contesting the validity of such an assignment by the fact that it contains a covenant to the effect that it is valid and sufficient, and that whenever required the assignor will, in order to carry out the design of the instrument, do any act necessary for that purpose.</p> <p>Such an assignment was not validated by the removal of the disability by the said act of 1879.</p> <p>The wife’s right to avoid such an assignment, in the absence of any act, order or action, after the disability was removed, recognizing its validity, is not barred by delay in seeking to reclaim the policy for a period within that prescribed by the. Statute of Limitations, nor will mere delay short of that period suffice to validate the assignment.</p> <p>The general enabling acts in relation to married women and their separate property, have no reference or applicability to such a policy, and only in those cases and to the precise extent which the statutes have authorized, can the beneficiary assign it.</p> <p>To bring an insurance by a wife upon the life of her husband within the provisions of said act of 1840, it is not essential that it should appear by the terms of the policy or by extrinsic evidence, that it was the intention of the assured to avail himself of the provisions of that act; the intention is to be presumed from the beneficial nature of the policy.</p> <p>The omission to provide in the policy for the disposition of the fund in case of the death of the wife before her husband, or a statement in the application that the insurance is for the benefit of the wife -solely, does not rebut the presumption that in taking the policy the wife had in view said act.</p> <p>The fact that such a policy was issued by a corporation created under the laws of another state, does not affect its assignability, in the absence of evidence that under the laws of such other state it is assignable.</p> <p>It seems, that in an action brought by a married woman to compel the reassignment of such policy, in case it appears that defendant has paid any premiums thereon, the repayment thereof should be made a condition of granting the relief.</p>

This action was brought to recover for the corporation the value of its shares distributed among the defendants, without ■ cost to them, or to obtain such other or further relief as should be found just and agreeable to equity. On the trial the court required the plaintiffs to elect whether they would seek to recover for the benefit of the corporation or to recover their personal damages, and they elected to demana the last-mentioned relief.

<p>Appeal from judgment of the General Term of the Superior Court of the city of Hew York, entered upon an order made April 9, 1888, which affirmed a judgment in favor of plaintiff entered upon a verdict.</p> <p>The nature of the action and the facts, so far as material,, are stated in the opinion.</p> <p>The contract between the parties contained a provision that the house then in process of construction should he delivered in good condition. This provision was not merged in the deed which was given by the plaintiff to. the defendant. (Phillips v. Phillips, 1 P. Wms. 44; Bascom v. Smith, 34 N. Y. 320; Forbes v. Moffatt, 18 Ves. 389; James v. Johnson, 6 Johns. Ch. 417; Atwood v. Carpenter, 27 Barb. 639; Pardage v. Cole, 1 Saund. 320; Parrmelee v. O. & S. R. R. Co., 6 N. Y. 74; Witbeck, v. Waine, 16 id. 532; Morris v. Whitcher, 20 id. 41; Davis v. Lottich, 46 id. 393; Murdock v. Gilchrist, 52 id. 242; Smith v. Holbrook, 1 Sheld. 474; Hill v. S. B. & N. Y. R. R. Co., 8 Hun, 299.) It was incumbent upon the plaintiff to show affirmatively that it was intended by the parties that the delivery of the deed should be regarded as a- complete execution of the contract. (F. C. Co. v. Metzger, 118 N. Y. 260, 265; O. I. Co. v. Roach, 117 id. 531; Parke v. F. A. T. Co., 120 id. 51; Dekay v. Bliss, Id. 97; Bartlett v. Wyman, 14 Johns. 259; Crosby v. Wood, 6 N. Y. 369; 2 Pars, on Cont. 437; Vanderbilt v. Schreyer, 91 N. Y. 372; Robinson v. Jewett, 116 id. 53; Newberry v. Furnival, 46 How. Pr. 139; 56 N. Y. 638; People v. Connor, 46 Barb. 333, 335; Giles v. Caines, 3 Cai. 107.) The counter-claim should have been ■allowed, because it related to and grew out of the same transaction, and was itself a cause of action on contract. (Code Civ. Pro. §§ 501, 502; Sandford v. Travers, 40 N. Y. 143; Isham v. Davidson, 52 id. 240; Moore v. Rand, 60 id. 212; Briggs v. Hilton, 99 id. 517; Ferguson v. Baker, 116 id. 261; Littaver v. Goldman, 73 id. 513; Shepard v. M. R. Co., 117 id. 450; Dounce v. Dow, 57 id. 16; Day v. Pool, 52 id. 416; Reed v. Randall, 29 id. 352; McCormick v. Larson, 45 id. 265; Cook v. Soule, 56 id. 421; Wetmore v. Bruce, 118 id. 323.)</p> <p>Oral evidence is not admissible to change the terms of a written agreement. (Bush v. Tilly, 49 Barb. 603.) The question of waiver by accepting a deed is solely one of intention. (Morris v. Whitcher, 20 N. Y. 41; Howes v. Barker, 1 Johns. 506; Houghtaling v. Lewis, 10 Johns. 298; Atwood v. Carpenter, 27 Barb. 639-644; Davis v. Lottich, 46 N. Y. 393-398; Eighmie v. Taylor, 98 id. 288-295.)</p>

- On the 30th of October, 1882, the plaintiff drew a draft on the Manhattan Bank, its Mew York correspondent, for $17 to the order of J. T. Watson. The payee, or some other person altered this draft by changing the date to Movember second, the name of the payee to James T. Watson, and tie amount to $3,462.40. Movember 3, 1882, Watson deposited this raised draft with the defendant, and had credit for the full amount.

<p>Appeal from a judgment of the General Term of the City-Court of Brooklyn, entered upon an order made April 23, 1888, which affirmed a judgment in favor of plaintiff entered upon a verdict.</p> <p>This action was brought to recover damages for personal injuries alleged to have been caused by defendants’ negligence. The material facts are stated in the opinion.</p> <p>The court below based its ruling on cases holding that when a land owner invites persons upon his premises “ he cannot permit anything in the nature of a snare to exist thereon.” This was error. (Larkin v. O'Neil, 29 N. Y. S. R. 34; Marsh v. Chickering, 101 N. Y. 396; Catrill v. Hilton, 106 id. 512.) The rule applicable to this case is like that applicable to an inn, under which an innkeeper cannot be held liable for an accident happening to a guest who, even through mistake, goes to a part of the premises where he had no need to go and to which he was not invited. (Gaffney v. Brown, 23 N. E. Rep. 233.)</p> <p>The questions as to whether the defendants were negligent, or whether the plaintiff was guilty of contributory negligence, and all subordinate questions were properly left to the jury. (Bennett v. R. R. Co., 102 U. S. 585; 114 N. Y. 316; 116 id. 564.) A storekeeper who invites persons upon his premises is liable for all damages sustained by them, except those arising from inevitable accidents. (Davenport v. City of New York, 37 N. Y. 568; Swords v. Edgar et al., 59 id. 28; Victory v. Baker, 67 N. Y. 366, 370; Beck v. Carter, 68 id. 292; Fleis v. Indicott, 15 Wkly. Big. 7, 24; Nave v. Flack, 29 Alb. L. J. 366; Tousey v. Roberts, 110 N. Y. 620; 114 N. Y. 312; 17 J. & S. 182, 304; Pettingill v. City of Yonkers, 116 N. Y. 558-564 Bennett v. R. R. Co., 102 U. S. 580; Cooley on Torts, 604-607; Moak’s Underhill on Torts, 258-270; Sweeney v. O. C. R. R. Co., 10 Allen, 373; Zorbich v. Tarbell, Id. 385; Mendell v. Baxter et al., 12 Gray, 474; Corby v. Hill, 4 C. B. [N. S.] 556; Larmire v. C. P. R. R. Co., 2 Cent. Rep. 409; Francis v. Cockrell, L. R. [5 Q. B. Div.] 184; Indemaur v. Dames, L. R. [1 C. P. Div.] 274; 2 id. 313; Camp v. Wood, 76 N. Y. 96; Gilbert v. Nagle, 118 Mass. 278; Francis v. Cockrell, L. R. [5 Q. B. Div.] 184.)</p>

This was an action upon a promissory note. On February 1, 1877, the defendant was indebted to Cornelia B. Paulmier in the sum of $867.50 for rent, and on that day they entered into a written contract, by which she agreed to extend the time of payment for eighteen months, provided the debt was secured by the defendant’s note, due in three months, so indorsed by his wife as to charge her separate estate, and to be secured by like notes given in renewal until the arrival of the…

<p>Appeal from judgment of the General Term of the Supreme Court in the first judicial department, entered upon an order made January 26, 1888, which affirmed a judgment in favor ■of plaintiff entered upon a decision of the court on trial at Special Term.</p> <p>The nature of the action and the facts, so far as material, are stated in the opinion.</p> <p>The relation of banker and -customer in respect to deposits is that of debtor and creditor. When deposits are received they belong to the bank as a part of its general funds, .and the banker becomes the debtor to the •depositor, and agrees to discharge the indebtedness by paying the checks of the depositor, his creditor. The contract between the parties is purely legal, and has no element of trust in it; therefore, the plaintiff's are not entitled to recover. (Æ. N. Bank v. F. N. Bank, 46 N. Y. 82, 86; Johnson v. Roberts, L. R. [10 Ch. App.] 505; C. Bank v. Hughes, 17 Wend. 94; 34 Barb. 298; 66 N. Y. 271; In re Brood, L. R. [17 Q. B. Div.] 740, 746; In re G. C. Co., 20 W. R. 358; 56 N. Y. 478; 79 id. 183; 1 Morse on Banks, § 186.)</p> <p>The deposit of June 25, being incontestably our property, deposited by us, in this form, for a specific purpose, acceded to by the bank, created a contract and.trust relation between A. D. Straus & Go. and the Tradesmen’s National Bank. (Risley v. P. Bk., 11 Hun,. 484; 83 N. Y. 318; Parker v. Baxter, 19 Hun, 415, 416; Lowery v. Steward, 3 Bosw. 514; Goepp's App., 15 Penn. St. 428; Thompsons App., 22 id. 17; Overseers v. Bk., of Va., 2 Gratt. 544; McLaren v. Brewer, 51 Me. 402; Veil v. Mitchell, 4 Wash. 105; Bank v. Pollock, 4 Edwd. Ch. 215; U. S. v. St. Bk., 96 U. S. 30, 35; Fletcher v. Sharpe, 108 Ind. 279; Van Allen v. Bk., 52 N. Y. 1; N. Bk., v. Ins. Co., 104 U. S. 54; Pennell v. Deffel, 4 DeG., M. & G. 372: Firth v. Cortland, 2 H. & M. 417; Knatchbull v. Hallet, L. R. (13 Ch. Div.) 696; Taylor v. Plumer, 3 M. & S. 562; F. Bk., v. King, 57 Penn. 202; Newton v. Porter, 69 N. Y. 136; Bundy v. Monticello, 84 Ind. 119; McLeod v. Evans, 66 Wis. 401; Peak v. Ellicot, 30 id. 156; Morse on Banks, 58, 59; People v. City Bk. 96 N. Y. 36, 37; Cutler v. A. E. N. Bk., 113 id. 593; Cooper v. 30 Fed. Rep. 171; Keyser v. Hitz, 2 Mack, 22, 24.) -As to the fact of notice to and knowledge by the bank of the purpose of the deposit there was substantial evidence to sustain the finding. (Mason v. Lord, 40 N. Y. 476; Pollock v. Pollock, 71 id. 137; Beach v. Cook, 28 id. 540; Slitt v. Huidekopers, 17 Wall. 394; Cable v. Paine, 8 Fed. Rep. 790.) If any relation between Dixon and plaintiffs requires the application of this deposit to be made to his accommodation check, equity will compel such application, entirely irrespective of the question whether the bank’s knowledge of that relation was prior, contemporaneous, or subsequent, to the making of the deposit. (Van Allen v. Bank, 52 N. Y. 1, 6, 9; 101 id. 565, 568; Viets v. U. N. Bank, 101 id. 564; Hill v. Royds, L. R. [8 Eq. Cas.] 290; Bank v. Ins. Co., 104 U. S. 66; Stevens v. Bd. of Education, 79 N. Y. 186; People v. City Bk., 96 id. 37; Cutler v. Am. Ex. N. B., 113 id. 593; Bank v. Speight, 47 id. 668; Coddington v. Bay, 20 Johns. 637; McBride v. Bank, 26 N. Y. 450; Lawrence v. Clarke, 36 id. 128; Taft v. Chapman, 50 id. 448; Barnard v. Campbell, 35 id. 456, 463; Turner v. Treadway, 53 id. 650; Comstock v. Hier, 73 id. 269; Moore v. Ryder, 65 id. 442; Winegar v. Fowler, 82 id. 315; Weaver v. Barden, 49 id. 291; Fairbanks v. Sargent, 104 id. 104; Watervliet v. White, 1 Den. 603; Mayer v. Mayor, etc., 63 N. Y. 457; Lawrenee v. S. Bank, 6 Conn. 529; Branch v. Dawson, 36 Minn, 197, 198; Brabrook v. Bank, 104 Mass. 228; Sherman v. Bank, 138 id. 581; Robinson v. Ring, 72 Me. 140; Oooper v. Bank, 30 Fed. Rep. 171.) Every presumption is in favor of the judgment appealed from. (E. C. Foundry v. Hersee, 103 N. Y. 25; S. O. Co. v. Ins. Co., 64 id. 85; Appleby v. E. Co., Id. 18; Bryant v. Trimmer, 47 id. 96; Smith v. Newland, 9 Hun, 553-555; Baird v. Mayor; etc., 96 N. Y. 567.)</p>

This action was brought upon two promissory notes for $5,881.92 each, dated respectively August 12 and August 26, 1882, made by the defendants under their firm name of “ Boorum & Pease,” and payable to their own order four months after date. The defenses interposed were fraudulent diversion and usury.

This action-was brought to recover a balance alleged to be due plaintiffs under a contract between the parties, of which the following, omitting such portions as are not material to the question involved-, is a copy: “This agreement made and concluded the 8t-h day of June, 1882, between John Sullivan and Edward Shanley, contractors, óf Catskill, Hew York, parties of the first part, and the President and Trustees of the Village of- Sing Sing, acting as Commissioners of…

On the 1st day of September, 1886, the parties entered into an agreement of lease by which the defendant of the first part demised to the plaintiff of the second part certain premises in the city of Hew York, for the term of three years and eight months from that date, for the yearly rent of $6,000, payable in equal monthly payments on the fifteenth day of each month.

<p>In an action to recover damages for injuries alleged to have been sustained by plaintiff, by reason of her falling upon one of defendant’s sidewalks, which defendant had negligently suffered to be out of repair, and, in consequence, ice had accumulated thereon, causing the fall, it appeared that, at the point where plaintiff fell, water from the roof of an adjoining building was conducted across the walk through a gutter channeled in the surface stone of the sidewalk; that this stone and the gutter stone had become disjointed and broken, so that the flow of the water was interrupted, and it ran over onto the sidewalk, and there froze. Held, that as the dangerous condition of the walk was not due to natural but to artificial causes, defendant, if chargeable with notice of the defect, was liable for negligence.</p> <p>Muller Y.Oity of Newburgh (32 Hun, 24; 105 N. Y. 668); Taylor v. City of Yonkers (105 N. Y. 202), distinguished.</p> <p>A witness for plaintiff was permitted to testify, under objection and exception, that about two years prior to the accident in question he fell upon the ice at the same place, and that there was then about the same amount of ice as when plaintiff fell. It did not appear that the prior accumulation of ice was caused hy defects in the sidewalk. Held, that the reception of the testimony was error.</p>

This action was* commenced July 8, 1887, and was for moneys expended for the use of the firm of Bousseau & Harrington, of which the defendant is the surviving partner. The defense pleaded was the discharge of said firm in bankruptcy, and that the claim was barred by the Statute of Limitations. The petition in bankruptcy was filed on November 24, and said firm were adjudicated bankrupts on December 3,1877.

Since 1880, Ilarvey C. Foster has been the OAvner in fee of the land described in the written contract entered into under seal by him with Walter A. Wilcox, Amos D. Wheeler and William T. Eaton, dated April 27, 1881, and acknowledged May 9, 1881, the material parts of which are as follows: “Agreement made this 27 th day of April, 1881,- between Harvey O. Foster, party of the first part, and W. A. Wilcox, A. D. Wheeler and W T. Eaton, party of the second.

The nature of the action and the facts, so far as material, are stated in the opinion. The lease given by defendants -was a five-year lease, duly executed in writing, and recorded in the proper county. This record became, by statute, constructive notice to all subsequent purchasers.

Ceoss-appeals from judgment of tlie G-eneral Term of the 'Supreme Court in the second judicial department, entered upon an order made February 13, 1888, which affirmed a judgment in favor of plaintiff entered on the report of a referee. This action was brought for the specific performance of an /alleged contract by which the defendant agreed to sell to the plaintiff a certain number of lots in its cemetery.

This was an action upon a policy of fire insurance. The facts, so far as material, are stated in the opinion. The plaintiff was not entitled to recover because the assured had failed to furnish proofs of loss. (Brink v. H. F. Ins. Co., 70 N. Y. 593; Goodwin v. Ins. Co., 73 id. 480; Prentice v. Ins. Co., 77 id. 483; Brink v. Ins. Co., 80 id. 108; Keeney v. Ins. Co., 71 id. 386; Devens v. Ins. Co., 83 id. 173.) The cancellation of the policy by the company was effectual.

When the bill which .became chapter 672 of the Laws 4of 1886 — relating to imprisonment for debt—was pending in the legislature, Mr. Edward P. Wilder, a lawyer, published a pamphlet in opposition to its passage.

The nature of the action and the facts, so far as material, appear in the opinion. There being no exceptions to the finding of fact, and no statement in the record that the case contains all of the evidence, the facts could not properly be reviewed by the General Term. (Porter v. Smith, 107 N. Y. 534; Cheney v. R. R. Co., 16 Hun, 415; Graff v. Ross, 47 id. 153; Spenee v. Chambers, 39 id. 193; Code Civ.

■This action was brought to procure the transfer by defendant upon its books of certain shares of stock to plaintiff and the issue to him of a new certificate therefor.' The defendant was… Held: until transfer is made on its books, and the pledgor of stock has full right to act as a stockholder while his stock is in pledge.

The nature of the action and the facts, so far as material, are stated in the opinion. The possession of defendant’s ■.agents was his possession.

which reversed a judgment in favor of the defendants entered upon the report of a referee and directed a new trial. This action was brought to recover $500 paid by plaintiff to defendants upon. a contract for the sale of the real estate known as Ko. 316 East Eifty-second street, Eew York city, together with expenses for examining the title.

In 1885 Alexander V. Davidson was the sheriff of the city -and county of New York, his term expiring December thirty-first of that year. September 10, 1885, the plaintiff discounted for Davidson his promissory note for $4,500, which was indorsed by three accommodation indorsers.

This action was brought to recover damages for the alleged conversion by the defendant of nursery trees, grape vines and bushes standing and growing upon a certain farm in the county of Albany. The title to the farm prior to 1878, subject to a mortgage made by him to Isaac S. Albright, November 9,1868, and a prior mortgage, was in Peter S. Maride, who was engaged in raising these nursery trees, vines and shrubs for sale.

<p>Appeal from judgment of the General Term of the Court of Common Pleas for the city and county of Hew York, entered upon an order made May 18, 1888, which affirmed a judgment in favor of plaintiff entered upon the report of a referee.</p> <p>This action was brought to recover from the defendant the difference between the sum bid for certain real estate at an auction sale thereof and the sum for which said real estate was resold upon the refusal of the defendant to complete his purchase.</p> <p>The referee found the following facts:</p> <p>■ On April 28, 1886, the plaintiff was the owner of premises known as No. 311 East One Hundred and Fourth street, in the city of New York, and authorized and empowered Pickard Y. Harnett & Co., auctioneers, to sell the same at public auction at the Peal Estate Exchange in said city, and on the date aforesaid said Harnett & Co. did offer said premises for sale, and they were struck off and sold to the defendant at his bid of $11,800. Said Harnett & Co. thereupon made and signed a memorandum of said sale. Defendant failed to pay ten per cent of the purchase-money, and to sign a memorandum of the purchase so made. Prior to May 26,1886, a notice was served upon defendant that said premises would be resold on his account, on the date aforesaid, at the real estate auction rooms, and that the plaintiff would held him for the deficiency arising between the price bid by said defendant and the price the same would bring at such resale. At such resale the premises were resold for $10,200.</p> <p>And as a conclusion of law the referee found that the plaintiff was entitled to judgment for $1,600, with interest and. auction fees.</p> <p>The only evidence of a written contract between the parties for the sale of lands was a memorandum in the auctioneer’s book of stiles, as follows:</p> <p>Wed. 28 April ’86.</p> <p>311 E 104 Terms Sale</p> <p>11000 7000</p> <p>250 at 5 per cent</p> <p>250 2 m</p> <p>11750 . 3000</p> <p>11800 at 6 per cent</p> <p>J. N. Newwitter can be paid</p> <p>4 Pine St</p> <p>¡z¡ pc % o £</p> <p>This memorandum was signed by Harnett on the margin of the book at the close of the sale.</p> <p>The book also contained a ¡minted slip or advertisement of the sale, but such slip did not name or describe the owner or make mention of any such person.</p> <p>The memorandum of sale was not a sufficient compliance with the provisions of the Statute • of Frauds. (2 E. S. chap. 7, § 8 ; 2 Kent’s Comm. 511; Browne on Stat. of Frauds, § 371; Eeed on Stat. of Frauds, § 321; Bing, on Ex. Cont. 391; Kenmorthy v. Schofield, 2 B. & C. 945; Wain v. Walters, 5 East. 10; Stone v. Browning, 68 N. Y. 604; Drake v. Seaman, 97 id. 230; Newberry v. Wall, 65 id. 484; Routledge v. Worthington Co., 119 id. 592; Parkhurst v. Van Cortlandt, 14 Johns. 15; Potter v. Duffield, 9 Eng. Rep. 664; Williams v. Lake, 2 E. & E. 349; Grafton v. Cummings, 99 U. S. 100; Sherburne v. Shaw, 1 N. H. 157; Knox v. King, 36 Ala. 367; Gill v. Bicknell, 2 Cush. 355; Champion v. Plummer, 1 Bos. & Pril. 252; Wright v. Weeks, 25 N. Y. 153; Trustees, etc., v. Bigelow, 16 Wend. 28; Sheid v. Stamps, 2 Sandf. 172; McConnell v. Brillhart, 17 Ill. 354; Smith v. Jones, 7 Leigh, 165.) The memorandum and the allegations of sale cannot be considered together.. (Coe v. Tough, 116 N. Y. 273; B. Church v. Bigelow, 16 Wend. 28; Wright v. Weeks, 28 N. Y. 153; Drake v. Seaman, 97 id. 230; 27 Hun, 63; Stone v. Browning, 68 N. Y. 598; Morton v. Dean, 13 Met. 385; Tallman v. Franklin, 14 N. Y. 584; Pinckney v. Hagadorn, 3 Duer, 95; Sugden on Vendors, 139; Hinde v. Whitehouse, 7 East. 558.)</p> <p>The memorandum made by the auctioneer in his sales-book was sufficient to satisfy the provisions of the Statute of Frauds: (3 E. S. chap. 8, tit. 1; Tallman v. Franklin, 14 N. Y. 584, 593; S. F. M. Co. v. Goddard, 14 How. [U. S.] 446; Doughty v. M. B. Co., 101 N. Y. 644; Foot v. Webb, 59 Barb. 38; A. Co. v. Mayor, etc., 55 N. Y. 495; Wright v. Weeks, 25 id. 153; Raubitschek v. Blank, 80 id. 478; Hagan v. D. S. M. Co., 9 Hun, 75; Smith v. Jones, 7 Leigh, 165; Pickney v. Hagadorn, 1 Duer, 89; 14 N. Y. 584, 590; Hicks v. Witmore, 12 Wend. 584; Beshwick v. Beach, 103 N. Y. 414, 420.) All the paper-writings referred to are contemporaneous, between the same parties and relate to the same subject-matter; they should, therefore, be read together and construed as one paper. (Tallman v. Franklin, 14 N. Y. 584; Rogers v. Smith, 47 id. 324; Ryan v. U. S., 136 U. S. 68, 83; P. M. Co. v. Hoffman, 3 Daly, 495; Raubitschek v. Blank, 80 N. Y. 478; Coe v. Tough, 116 id. 273.)</p>

Appeal by plaintiff from judgment of the General Term of the Superior Court of the city of New York, entered upon an. order made May 7, 1888, which affirmed a judgment in favor of defendants entered upon the report of a referee. This was an action upon a contract; the substance of which, as well as the material facts, are stated in the opinion.

Cross-appeals from a judgment of the General Term of the Superior Court of the city of New York, entered upon an order made May 10, 1888, which modified, and as modified affirmed, a judgment entered upon the report of a referee.

<p>The act of 1888 (Chap. 114, Laws of 1883), which provides for the settlement and collection of arrearages of unpaid taxes in the city of Brooklyn, does not provide for any apportionment violative of any constitutional right, as its object was not to make original assessments, but to provide for the adjustment of those previously made or attempted to be made, and under it the board of assessors could levy no new taxes, but simply adjust, upon a fair basis, those already made.</p> <p>It was within the legislative authority to confer this power upon said board, and the power and the manner of its exercise are effectually conferred by the act.</p> <p>While a notice to property owners of the adjustments made, was necessary, the kind of notice and the mode of giving it were matters of legislative discretion, and a sufficient notice is prescribed in the act.</p> <p>Stuart v. Palmer (74 N. T. 183); Eaton v. Peed (MS. Op. Mason, J., Ct. Appeals), distinguished!</p> <p>In an action of ejectment brought by a purchaser of a lot sold for nonpayment of taxes, etc., as adjusted under said act, it appeared that there was in arrear charges for water-rates amounting to about $20. It was claimed by plaintiff that the water-rates were invalid as liens upon the land, for the reason that plaintiff’s lot was vacant, and that the provision of the statute providing for such liens upon vacant lots <§ 24, chap.- 396, Laws of 1859) was void. It appeared also that the amount in arrear was reduced by the board more than the amount of the water-rates. Held, that the question raised was not available to defendant; that in view of the presumption given by the statute that the purchaser took a good title by his deed, it could not be assumed without evidence to that effect that the reduced sum embraced any amount of water-rates.</p>

The complaint as indorsed upon the summons is as follows, viz.: “ Damages by reason of negligence of defendants,” but, as elsewhere stated in the appeal book, it was in these words : “ Loss of a cloak and other articles left in the care of defendants while the plaintiff was being fitted to a wrap.” The answer was a general denial. The justice, before whom the cause was tried without a jury, rendered a judgment in favor of the plaintiff for $50 and costs.

<p>Appeal from judgment of the General Term of the Supreme Court in the first judicial department, entered upon an order made March 3, 1888, which affirmed a judgment in favor of plaintiff, entered upon a verdict.</p> <p>The nature of the action and the material facts are stated in the opinion.</p> <p>At the time of the fire there existed between the parties no contract of insurance. It had been duly terminated by the notice of cancellation given to the brokers or agents of the plaintiffs. (31 N. Y. S. R. 286; Stone v. F. Ins. Co., 105 N. Y. 543; Armovr v. T. Ins. Co., 15 J. & S. 352; 90 N. Y. 450; S. Co. v. T. Ins. Co., 64 id. 85; Grace v. A. C. Ins. Co., 17 Blatchf. 443.) Errors in the charge of the court, even if not excepted to, furnish ground for a new trial. (Pettis v. Pier, 4 T. & C. 690; Costello v. S. R. R. Co., 65 Barb. 95, 105; Johnson v. McConnel, 15 Hun, 293; Ackart v. Lansing, 6 id. 476; Bennett v. Johnson, 2 Lans. 94; Greene v. White, 37 N. Y. 405; Arnold v. Angell, 62 id. 508; Meeker v. Wright, 76 id. 272; Davis v. Mayor, etc., 14 id. 506.) Even-if a contract still existed between the parties, the plaintiff, having failed to furnish proper and sufficient proofs of loss, cannot recover. (McMasters v. W. Ins. Co., 25 Wend. 379; Billbrough v. M. Ins. Co., 5 Duer, 587; O'Neill v. B. F. Ins. Co., 3 N. Y. 122; Brown v. L. A. Corp., 40 Hun, 103; Kernochan v. N. Y. B. Ins. Co., 17 N. Y. 428; Pratt v. N. Y. C. Ins. Co., 55 id. 505; Frost v. S. Ins. Co., 5 Den. 154; Graham v. P. Ins. Co., 77 N. Y. 171; Cornell v. Le Roy, 9 Wend. 163; Bentley v. Smith, 3 Caines, 169.) The condition precedent of proper. proof of loss was, as a matter of law, never waived by defendant. (Underwood v. F. Ins. Co., 57 N. Y. 506; Ripley v. Æ. Ins. Co., 30 id. 136; Graham v. F. Ins. Co., 9 Daly, 341, 347; Kimball v. H. Ins. Co., 8 Bosw. 503; McDermott v. L. Ins. Co., 12 J. & S. 221; Brown v. Bowen, 30 N. Y. 519; Penfield v. Dunbar, 64 Barb. 239; Victor v. I. Co., 13 J. & S. 129; Buhrman, v. Baylis, 14 Hun, 608; Baker v. U. Ins. Co., 43 N. Y. 283; Brink v. H. Ins. Co., 80 id. 108.) Admitting, for the sake of argument, that there was a waiver, such waiver was a question of fact to be determined by the jury, and could not be decided by the justice at Circuit on defendant’s motion to dismiss the complaint. (Smith v. H. Ins. Co., 37 Hun, 39, 40; Brink v. H. Ins. Co., 80 N. Y. 112; Hermann v. N. F. Ins. Co., 100 id. 416.) If there was a contract, the material false representations as to other insurance, as to the real identity of plaintiffs, and as to the question of prison-rislc, are alone sufficient to avoid it. (Noyes v. H. Ins. Co., 54 N. Y. 668; Clinton v. H. Ins. Co., 45 id. 461; Burrows v. Turner, 24 Wend. 277; Davis v. Boardman, 12 Mass. 30; 1 Phil, on Ins. 163; Standard Oil Co. v. Amazon Ins. Co., 14 Hun, 619; Armour v. T. Ins. Co., 90 N. Y. 456; Sprague v. H. P. Ins. Co., 69 id. 128.) There are no sufficient parties plaintiff. (Code Civ. Pro. § 452; Smith v. Crichton, 33 Md. 106; R. R. Co. v. Gill, 15 La. Ann. 500; Wright v. Williamson, 3 N. J. L. 978; Choteau v. Raitt, 20 Ohio, 133.)</p> <p>The contract of insurance made by the defendant with the plaintiffs was absolute. (Post v. Æ. Ins. Co., 43 Barb. 352, 362, 363; Angelí on Ins. § 33; Ellis v. A. C. Ins. Co., 50 N. Y. 402; Train v. H. Co., 62 id. 602; Angell v. H. Ins. Co., 59 id. 171; Lipman v. N. F. Ins. Co., 31 N. Y. S. R. 287.) The plaintiffs received no notice of the termination of the contract of insurance. (Hermann v. N. Ins. Co., 100 N. Y. 411, 416; Grace v. A. Ins. Co., 109 U. S. Rep. 288; White v. C. Ins. Co, 120 Mass. 330; Von Wein v. Ins. Co., 20 J. & S. 490; Stillwell v. M. L. Ins. Co., 72 N. Y. 385; Hodges v. S. Co., 33 Hun, 583; L. & L. F. Co. v. Furnbull, 86 Ky. 230; Van Valkenburg v. L. F. Ins. Co., 51 N. Y. 465, 469.) The plaintiffs could not be bound by the alleged notice of cancellation because the notice was not given until after defendant’s liability had become fixed. (Van Valkenburg v. L. F. Ins. Co., 51 N. Y. 467.) If any notice of cancellation were given to the assured, the. notice was not a reasonable notice. (Blaine v. R. F. Ins. Co., 3 Lans. 421.) The claim made by defendant that the proofs of loss were inadequate is untenable. (O'Neil v. B. F. Ins. Co., 3 N. Y. 122; Brink v. H. Ins. Co., 80 id. 112; Barnum v. M. F. Ins. Co., 97 id. 194; Hermann v. H. Ins. Co., 100 id. 411, 416; Jones v. H. Ins. Co., 117 id. 103; O'Brien v. P. Ins. Co., 76 id. 459; Wright v. Hooker, 10 id. 51; Crawford v. Collins, 45 Barb. 269; Lauferty v. Wheeler, 11 Abb. [N. C.] 220, 224; Clinton v. H. Ins. Co., 45 N. Y. 454; Bidwell v. N. W. Ins. Co., 19 id. 182; Pitney v. G. F. Ins. Co., 65 id. 14.) The objection that there is a defect of parties plaintiff, is not available to the defendants. (Karelsen v. S. F. Ins. Co., 45 Hun, 146; Richardson v. Hudhitt, 76 N. Y. 55, 58; Burkle v. Eckart, 1 Den. 337; Smith v. Bodine, 74 N. Y. 30; Burnett v. Snyder, 76 id. 344 81 id. 550.)</p>

This action was brought upon an undertaking given as bail to discharge one Charles W. Rogers from arrest in an action brought against him by plaintiff herein. The material facts are stated in the opinion. The plaintiff failed to prove the fraud alleged in the complaint in the action against Rogers, and consequently acquired no right to issue execution against Rogers’ person, and the liability of his bail has not accrued. The execution against the person was void. (Code Civ.

The action was brought to recover damages for injuries ■alleged to have been caused by defendant’s negligence. The plaintiff was a brakeman in the service of the defendant, and on the 10th day of May, 1880, was employed upon an •express passenger train which was scheduled to pass the station .at St. Johnsville at three minutes past five in the. afternoon.

This action was brought to recover certain sums- alleged to be due under a separation agreement. The-part of the agreement which related to the defendant’s intercourse with his children was valid. (Allen v. Affleck, 64 How. Pr. 385; Bolen v. Bolen, 44 Hun, 362.) The exception to the direction-of a verdict was sufficient.

- Appeal from judgment of the General Term of the Supreme Court in the fourth judicial department, entered upon an order made July 1, 1887, which affirmed a judgment in favor of defendants entered upon a decision of the court on trial at Special Term. The appeal is based upon the judgment-roll alone, and brings up questions of law only.

This action was brought against defendant as treasurer of the Sun Fire Office of London, an association formed and created under the laws of England, upon a policy of fire insurance issued by that association. The facts, so far as material, are stated in the opinion.

This action Avas based upon certain certificates issued hy defendant on sales of lots for unpaid taxes; it Avas brought to determine the amount plaintiff Avas entitled to receive of defendant upon surrender of the certificate the taxes for Avlxich they were sold liaAdng been declared void. The findings Avere as agreed upon hy the parties.

<p>The payment of a municipal assessment for a local improvement which is invalid by reason of defects in the proceedings of the common council on which it was based, appearing by the records that body is required by law to keep, is a mistake of law, and an action cannot be maintained to recover back the amount paid.</p> <p>It seems, that when the facts which render an assessment, apparently a lien upon land, invalid for want of jurisdiction to make it, are de hoi's the record, the person paying it will be deemed to have done so involuntarily and may recover back the amount paid without first vacating the assessment.</p> <p>It seems also, that when payment of an assessment is produced by coercion of law or unlawful exaction, under process for its collection, valid .on its face, it is not a voluntary payment and may be recovered back.</p> <p>Under the provisions of the charter of the city of Buffalo (§ 14, tit. 6, chap. 519, Laws of .1870) to enable persons interested to file objections to an assessment for a local improvement, the city clerk is required when the assessment-roll is delivered to him to publish a notice in five successive numbers of the official paper, that the roll is in his office and that objections may be filed with him within ten days from the first publication of the notice. A notice in pursuance of a resolution orderiqg the assessment was published in five successive numbers, the first publication being on the same day the resolution was approved by the mayor, but before it was approved. Held, that the publication was valid; that the general rule that fractions of a day will not be regarded in law, except for the purpose of preventing injustice was applicable.</p>

<p>Certain premises were conveyed to a trustee in trust, to pay the rents and profits to M. during the life of her husband, and upon his death to convey to her; if he survived her, then upon the further trust to convey to such person or persons and in such manner as she by will might appoint. In case M. died without having made such a will, the deed declared that the premises should belong to her children and the issue of such as died before her. M. died leaving her husband, and seven children, four sons and three daughters, surviving, and leaving a will, which contained a provision declaring it to be the will of the testatrix, that the said premises should he “held and enjoyed” hy her husband and her three daughters so long as any two of said daughters should remain single and unmarried, and for the space of one year after the marriage of the daughter who should be married second. At the expiration of the year the executor and trustee named in the will was authorized and empowered to sell the premises and divide the proceeds as specified. M.'s husband thereafter died, leaving the three daughters surviving. In an action of partition held, that the power of sale given by the will to the executor was a general power in trust, which was imperative (1 R S. 732, §§ 74 et seq.), and so, that it operated to suspend the vesting of the. fee until the power was executed or the estate-terminated; that the estate sought to be given was a life estate in each of the beneficiaries as tenants in common with cross-remainders, determinable upon the marriage of two of the daughters, and in case that contingency did not happen, the estate terminated upon the death of all the life tenants; that as the will was but the execution of the power of appointment given by the trust deed, the period during which the absolute power of alienation was suspended was to be computed from the date of the deed (1 R S..737, §§ 128, 129), and as so computed the suspension rvas for more than two lives then in being; that the estate attempted to be created being void the power so authorized to take effect at its termination was inoperative and void; and, therefore, upon the death of M. the absolute fee vested, under the deed, in her children and the issue of such as were dead.</p>

The nature of the action and the facts, so far as material, are stated in the opinion. The defendant’s motion for a nonsuit and for the direction of a verdict should have, been granted.

The nature of the action and the facts, so far as material, are stated in the opinion. The plaintiff has an absolute right to his bonds and stock, whether the trust company’s, certificates are returned or not. (Pom. Eq.