Volume 123 — New York Reports

This action was brought to recover damages for the death of William Ilranz, plaintiff’s intestate, which was alleged to have been caused by defendant’s negligence. The facts, so far as material, are stated in the opinion.

This action was upon a policy of fire insurance issued by defendant to plaintiffs. The facts, so far as material, are stated in the opinion. It is enough if any or all of the plaintiffs are entitled to recover the money. (Code Civ. Pro. §§ 446, 448, 449 ; Winne v. Niagara, 91 N. Y. 185 ; Simar v. Canady, 53 id. 298; Enos v. Leach, 18 Hun, 139.) To establish a forfeiture, it is well settled that the defendant must prove fraud.

This was an action to recover the undivided fourth part of about seventy-three acres of land in the possession of the defendant, a cemetery association. In 1835, Bichard Baynor, who is the common source of title, purchased a farm of about 154 acres, of which the lands now held by the defendant are a part, and being the owner of this farm in fee, mortgaged the same to Willet and TIenry Baynor to secure his bond for $15,000.

<p>Appeal from judgment of the General Term of the Supreme Court in the second judicial department, entered upon an order made February 11, 1889, which affirmed a judgment in favor of plaintiff, entered upon a decision of the court on trial at Circuit.</p> <p>The nature of the action and the facts, so far as material, are stated in the opinion.</p> <p>Both levies were void. (Sage v. City of Brooklyn, 89 N. Y. 189; Laws of 1873, chap. 863.) The second assessment — for improving — was also void, for the reason that the act provides for no notice to the land owners of opportunity to be heard concerning the assessment. (Stuart v.. Palmer, 74 N. Y. 183; Spencer v. Merchant, 100 id. 585 ; Remsen v. Wheeler, 105 id. 573 ; Spencer v. Merchant, 125 U. S. 345; S. M. Co. v. S. P. R. Co., 13 Fed. Rep. 722; S. C. Co. v. S. P. R. Co., 18 id. 385 ; People v. Turner, 117 N. Y. 227-237; In re Van Antwerp, 56 id. 261; People v. Mayor, 4 id. 419; Litchfield v. Vernon, 41 id. 123; Gorden v. Cornes, 47 id. 603.) It is claimed on the other side that the notice of hearing to the land owner required by the Constitution is in fact provided for by the act under review. An analysis of the act -will show this claim to be unfounded. (Spencer v. Merchant, 100 N. Y. 589; Therman on Estop. § 69.) The said alleged assessment for improving (for construction) is also void for the reason that it was never levied. (Donnelly v. City of Brooklyn, 121 N. Y. 9; Merritt v. Village of Portchester, 71 id. 309-312; Brevoort v. City of Brooklyn, 89 id. 128; Shattock v. Bascom, 105 id. 39; In re Cameron, 50 id. 502; In re Hearn, 96 id. 378; Cooley on Tax. [2d ed.] 475 ; Hilton v. Bender, 69 N. Y. 75.) The sale is void for the reason that no warrant was ever issued for the collection of the assessments in question, and, therefoi’e, no return of non-payment could have been legally made by the collector to the county treasurer, or by the latter to the state comptroller, to sei've as a basis for a sale. (Bradley v. Ward, 58 N. Y. 401-410 ; Farnham v. Hildreth, 32 Barb. 277; Dunham v. Reilly, 110 N. Y. 366; Cooley on Tax. [2d ed.] 424.) The deed of conveyance in this case was not even presumptive evidence. (Caulkins v. Chamberlain, 37 Hun, 163, 169; In re Cameron, 50 N. Y. 502; Shattuck v. Bascom, 105 id. 30; Merritt v. Vil. of Portchester, 71 id. 309-312; People v. Hagadorn, 105 id. 516 Halpin v. P. Ins. Co., 118 id. 165 ; Slattery v. Schwannecke, Id. 543, 547.) The order of the Supreme Coui’t confiiming the proceedings of the connnissionei's in the opening of the avenue (including the talcing of the land and the levying of the assessments thereof) is not conclusive, any more than the adjudications of the commissioners themselves are conclusive. (Freem. on Judg. [3d ed.] § 110 ; Cooley on Const. Lim. [5th ed.] 493 ; Elliot v. Piersol, 1 Pet. 328-340; C. Bank v. Judson, 8 N. Y. 254, 259; Craig v. Town of Andes, 93 id. 405, 410 ; Herm. on Est. §§ 65, 112, 113, 357, 360 ; Dudley v. Mayhew, 3 N. Y. 1; Buckle v. Eckhart, 3 id. 132; McMahon v. Rauhr, 47 id. 67.)</p> <p>The reports of the commissioners wei-e sufficient. (Mandeville v. Reynolds, 68 N. Y. 528; Coleman v. Shattuck, 62 id. 348 ; In re Cameron, 50 id. 502 ; In re Hearn, 96 id. 378 ; Laws of 1855, chap. 427, § 65 ; Laws of 1874, chap. 264, § 11; Jones v. Chamberlain, 109 N. Y. 100 ; Wood v. Knapp, 100 id. 112) The constitutional question raised in regard to the assessment for constniction under section 9.of the act (in that notice was not provided for) is not well taken. (67 N. Y. 371, 378; Haurmett v. City of Philadelphia, 65 Penn. St. 146; Burr on Tax. § 147; Cooley on Const. Lim. § 507; People v. Mayor, etc., 4 N. Y. 419 ; Litchfield v. Vernon, 41 id. 123 ; In re Van Antwerp, 56 id. 261; Gordon v. Cornes, 47 id. 608, 611 ; Genet v. City of Brooklyn, 99 id. 296, 306 ; Spencer v. Merchant, 100 id. 585 ; 125 U. S. 345; People v. Flagg, 46 N. Y. 401; Brewster v. City of Syracuse, 19 id. 116 ; People v. Haws, 34 Barb. 69.) The procedure here is precisely parallel to the procedure whereby the general taxes for state, county and town purposes are levied. (People v. Turner, 117 N. Y. 227.) The defendant is concluded by the determinations of the commissioners, and their confirmation by the. court. (67 N. Y. 378 ; In re U. E. R. R. Co., 112 id. 61.) The objection to the constitutionality of the first part of the acts (in relation to the opening) is not sound. (Sage v. City of Brooklyn, 89 N. Y. 189, 196; McCormack v. City of Brooklyn, 108 id. 49 ; Vail v. L. I. R. R. Co., 106 id. 283 ; Embury v. Connor, 3 id. 511; City of Brooklyn v. Copeland, 106 id. 496; Comrs. v. Armstrong, 45 id. 234; W. Comrs. v. P. P., etc., Co., 68 id. 591; 67 id. 371.) The comptroller’s certificate is a bar. (Sagev. City of Brooklyn, 89 N. Y. 200.)</p>

On the 14th day of October, 1870, George H. Dunscomb, a resident of Coburg in the province of Ontario and dominion of Canada, made and executed his will disposing of his estate, in which he appointed his wife, Harriet Catharine Dunscomb, and his brother, John William Dunscomb, executors thereof, and afterward on the same day he executed a codicil to his.will as follows: “ I, George Hoyles Dunscomb, in the within will mentioned, declare this to be a codicil to my last will…

This action was brought by plaintiff, as substituted trustee under the will and codicil of George H. Dunscomb, deceased, to recover certain shares of the stock of the Chicago, Burlington and Quincy Bailroad Company, alleged to have been wrongfully transferred.

This action was brought against defendants as sureties upon the bond of Robert Campbell, assignee for the benefit of creditors of Riley A. Brick. The facts, so far as material, are stated in the opinion. The complaint shows a perfectly valid claim against the estate.

<p>Appeal from judgment of the General Term of the Supreme Court in the third judicial department, entered upon an order made May 17, 1888, which affirmed a judgment in favor of plaintiffs entered upon a verdict.</p> <p>This action was brought to recover damages for injuries alleged to have been sustained by plaintiffs by reason of defendant, an adjoining land owner, using the building upon his premises as an ice-house, and by the melting of the ice occasioning a dampness which struck through the walls of plaintiffs’ dwelling.</p> <p>The facts, so far as material, are stated in the opinion.</p> <p>The court erred in allowing proof of damages after the commencement of the action down to the time of the trial, and also in denying defendant’s request to charge the jury that plaintiffs’ recovery was limited to the commencement of the action. (McKeon v. See, 51 N. Y. 300; 4 Robt. 449; Uline v. N. Y. C. R. R.. Co., 101 id. 98, 109; Whitmore v. Bischoff, 5 Hun, 176; Duryea v. Mayor, etc., 26 id. 120.) The court erred in allowing proof of damages for the permanent diminution in the market value of plaintiffs’ lot. (C. Corp. v. Hitchings, 65 Me. 140; Pond v. M. E. R. Co., 112 N. Y. 189, 190.) The evidence of the extent of the damage to the wall was not of the proper kind, and defendant’s objections and exceptions thereto are well grounded. (Morehouse v. Matthews, 2 N. Y. 514; Raymond v. Baker, 66 Barb. 604; Green v. Plank, 48 N. Y. 669 ; Terpenning v. Corn Ex., 43 id. 282; Armstrong v. Smith, 44 Barb. 120; Brown v. Elliott, 45 How. Pr. 182.) The erroneous evidence admitted warrants a reversal. (Carroll v. Dimel, 95 N. Y. 252; Bowes v. Becht, 35 Hun, 437-439 ; Baird v. Gillett, 47 N. Y. 186-188.)</p> <p>The storing'of ice by defendant so near the house of plaintiffs, interfered with the use and enjoyment of plaintiffs’ property, injured the walls of plaintiffs’ house and decreased its value, and thereby became a nuisance, for which plaintiffs are entitled to recover. And it is no excuse that defendant’s business is lawful and is conducted with all possible care and skill. (Fish v. Dodge, 4 Den. 311; Catlin v. Valentine, 9 Paige, 575 ; Brady v. Weeks, 3 Barb. 157; B. Church v. S. & T. R. R. Co., 5 id. 79; Heeg v. Licht, 80 N. Y. 582; McKeon v. See, 4 Robt. 449; Campbell, v. Seaman, 63 N. Y. 568 ; Beir v. Cooke, 37 Hun, 38 ; Reinhardt v. Mentash, L. R. [42 Ch. Div.] 685.) This action was brought to obtain equitable relief in addition to damages, and the court committed no error in allowing proof of damages which accrued subsequent to the commencement of the action. (1 Pom. Eq. Juris. 255; M. A. B. Church v. B. Church, 73 N. Y. 95; Beir v. Cooke, 37 Hun, 38; Henderson v. N. Y. C. R. R. Co., 78 N. Y. 423; Pond v. M. E. R. Co., 112 id. 186-190.) The witness Silbermau was competent as to the rental value, also the former and present value of plaintiffs’ house. (Clark v. Baird, 11 N. Y. 183 ; Bedell v. L. I. R. R. Co., 44 id. 370; Jarvis v. Furman, 25 Hun, 391.) The measure of damages is not only the loss of rent, but also the depreciation in the value of the property on account of the nuisance, and expense of repairs. (Wood on Nuisances, 887; Jutt v. Hughes, 67 N. Y. 207 ; Beir v. Cooke, 37 Hun, 38 ; Schwab v. Cleaveland, 28 id. 458.) The court properly excluded evidence of the assessed value of plaintiffs’ house. (Flint v. Flint, 6 Allen, 34; Kenerson v. Henry, 101 Mass. 152.) The motion for a nonsuit was properly denied. (Kelly v. Kelly, 3 Barb. 419; Thompson v. Dickerson, 12 id. 108; People v. M. T. Co., 11 Abb. [N. C.] 304; Colt v. S. A. R. R. Co., 49 N. Y. 671; Smith v. Coe, 55 id. 678.) There was no error in submitting the case to the jury. (Code Civ. Pro. §§ 823, 971, 1003 ; Parker v. Laney, 58 N. Y. 469 ; Carroll v. Deimel, 95 id. 255; Acker v. Leland, 109 id. 105-110.) Where a point has already been charged in substance it is not error for the court to refuse tó again charge it. (Spencer v. Humiston, 9 Hun, 71; Morehouse v. Yeager, 71 N. Y. 594; Hughes v. Ferguson, 23 Wkly. Dig. 185 ; Bloody v. Osgood, 54 N. Y. 488 ; Rexter v. Starin, 73 id. 601.) The maxim “ sic utere huo ut alienum non Irndas ” applies. (Moak’s Underhill on Torts, 410.) The plaintiffs 'were not obliged to make their walls impervious to dampness produced by defendant’s wrongful acts. (Mairs v. Manhattan Co., 89 N. Y. 498 ; Mackey v. N. Y. C. R. R. Co., 27 Barb. 528 ; Colt v. S. A. R. R. Co., 1 J. & S. 189 ; Hanck v. Stephenson, 8 id. 543 ; Coddington v. Carnley, 2 Hilt. 528 ; Cheney v. N. Y. C. R. R. Co., 16 Hun, 415; Dart v. F. Bank, 27 Barb. 337; Heritage v. Hall, 33 id. 347; President, etc., v. Gardner, 7 J. & S. 543 ; Kellar v. F. Ins. Co., 3 Hill, 251; Van Pelt v. Otter, 2 Sween. 202; Knapp v. Roche, 5 J. & S. 395.) The findings of law and fact were properly made and signed by the court. (Birdsall v. Patterson, 51 N. Y. 43 ; Vermilyea v. Palmer, 52 id. 471; Parker v. Laney, 58 id. 469 ; Carroll v. Deimel, 95 id. 255 ; Learnard v. Tillotson, 97 id. 1; Wallace v. A. L. T. Co., 16 Hun, 404; Hammon v. Morgan, 101 N. Y. 179; Acker v. Leland, 109 id. 5.) The judgment should not be reversed for error, if it appears that substantial justice has been done. (Code Civ. Pro. § 1003; Post v. Mason, 91 N. Y. 549; Wright v. Dugan, 15 Abb. [N. C.] 107: Potter v. Hopkins, 25 Wend. 417.)</p>

This action was to recover for the alleged negligence of defendant as bailee for hire. The facts, so far as material, are stated in the opinion. The defendant was a bailee ior hire. (Laws of 1867, chap. 3, § 2; Edw. on Bail. 44, 277, 278.) The statute requires that the place and property shall be particularly described in the search warrant. (3 R. S. [6th ed.] 1045, § 47; Barb. Cr.

<p>The provisions of the act to prevent deception in sales of dairy products (Chap. 202, Laws of 1884), which enumerates and defines certain offenses, therein mentioned as misdemeanors, and provides (§ 11) that Courts of Special Sessions shall have jurisdiction of all cases arising thereunder, does not give such courts exclusive jurisdiction; but simply grants to them the power to try misdemeanors of which, before its passage, they had no jurisdiction, and all of the offenses so enumerated, which were offenses at the time of tlie passage of said act, are cognizable by the same tribunals as before.</p> <p>Although a statute covers the whole subject-matter of an act previously passed, if it omits to repeal the former and expressly declares in its title that it is supplementary thereto, the former act is continued in force so' far as it is not repugnant to, and so far as it may be necessary to punish crimes committed before the passage of the later act.</p> <p>Defendant was indicted and tried at a Court of Oyer and Terminer, in Otsego county, under the said act of 1884 (§ 3), for having, on August ' 1, 1884, carried and sold to a cheese factory a quantity of milk diluted with water, for the purpose of having it manufactured into butter and cheese. The court was asked but refused to quash the indictment, on the grounds of want of jurisdiction, and that the act under which it was found was repealed by the act of 1885 (Chap. 183, Laws of 1885). Held, no error; that the adulteration of milk was made a misdemeanor by the act of 1862 (Chap. 467, Laws of 1862), and so was triable by the same tribunals as before the passage of the act of 1884; also, that while the provisions of the act of 1885 are substantially identical with the similar provisions of the act of 1884, under which the indictment was found, as the later statute in its title expressly declares it was in aid of and supplementary to the prior act, and as there was no express repeal thereof, it was continued in force so far as necessary to punish crimes committed before the passage of the act of 1885; that the omission to-repeal indicated the legislative intent to keep the provision alive so far as to punish offenses provided for, committed while it was the only law in force.</p> <p>Also, held, that the indictment charged but one offense, and was sufficient under the provisions of the Code of Criminal Procedure (§§ 375, 376).</p>

This was an action of ejectment and to recover damages for an alleged wrongful withholding of real estate in the city of Brooklyn. Plaintiff claimed title through a tax sale under the act (Chap. 114, Laws of 1883) known as the Arrearage Act, which act and the sale under it defendants claim to he void.

This was an action upon a membership certificate or policy of insurance issued by defendant, insuring the life of John Tyler. The facts, so far as material are stated in the opinion. Where a policy contains no stipulation making suicide a violation of its conditions, or one of the exceptions to the liability of the company, self-destruction, even with suicidal intent, constitutes no defense to the action. (Fitch v. A. P. L. Ins.

<p>Appeal from judgment of the General Term of the Supreme Court in the first judicial department, entered upon an order made April 3, 1889, 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 brought to perpetually enjoin the corporation defendant from carrying out a resolution of part of its stockholders for the issuing of stocks and bonds' of the company to purchase of and pay Robert F. Mullins, one of the defendants, and the secretary and treasurer, and also a director of the corporation, for an extension of water-works constructed by him, for which the trustees, of which he is one, agreed or resolved to issue to him $110,000 in new stock and bonds, in payment of such property, which the trial court found to be of the value of less than $61,000.</p> <p>The facts, so far as material, are stated in the opinion.</p> <p>The judgment cannot be sustained on the theory of fraud. (Thomas v. B., etc., R. R. Co., 109 U. S. 522; Gardner v. Butler, 30 N. J. Eq. 702; G. L. R. Co. v. Magway, 25 Beav. 595 ; N. C. N. R. Co. v. Simpson, 23 Fed. Rep. 214; L. S. I. Co. v. Drexel, 90 N. Y. 87, 93; Schenck v. Andrews, 57 id. 142; Boynton v. Andrews, 63 id. 94; Douglass v. Ireland, 73 id. 100; Brockwood v. Ireland, 61 How. Pr. 372; Lebke v. Knapp, 79 Mo. 24; Knowles v. Duffy, 40 Hun, 486; Thurber v. Thompson, 21 id. 472; Carr v. LeFevrc, 27 Penn. St. 413, 417.) 24or can the judgment be sustained on the ground of fiduciary relationship between Mullins and the corporation. (M. E. R. Co. v. M. E. R. Co., 11 Daly, 373; Hotel v. Wade 97 U. S. 13; T. L. O. Co. v. Marbery, 91 id. 587; Cook on Stock. [2d ed.] § 653 ; N. W. T. Co. v. Beatty, L. R. [12 App. Cas.] 589; Willace v. L. I. R. R. Co., 12 Hun, 460.) In an action by a stockholder, the presumption is that the purchase is a good one for the corporation, and the burden of proof is on the plaintiff to show the contrary. (MacNaughton v. Osgood, 41 Hun, 109 ; Veeder v. Mudgett, 95 N. Y. 295.) Mullins, having violated no 'duty to the company in building the extension, was at liberty to sell it to the company for the best price he could get. (1 Morawetz on Corp. § 521; Parker v. Nickerson, 137 Mass. 488; Inglehart v. T. I. H. Co., 32 Hun, 377.) It is not illegal to issue stock and bonds for constructing works, although the cost of sncli construction is less than the face value of the stock and bonds. (Van Cott v. Van Brunt, 82 N. Y. 535, 540; Laws of 1854, chap. 282, § 16 ; M., etc., R. R. Co. v. Dow, 120 U. S. 287 ; P. & S. R. R. Co. v. Thompson, 103 Ill. 187,201; Curtis v. Leavitt, 15 N. Y. 1, 66; Ellsworth v. S. L. & T. H. R. R. Co., 98 id. 553; C. G. M. Co. v. Platt, 3 Daly, 263 ; W. W. V. C. Co. v. Valletta, 21 How. Pr. 414; In re Compagnie Generale De Bellgarde, L. C. [4 Ch. Div.] 470 ; In re A. D. S. N. & C. Co., L. R. [20 Eq. Div.] 339; Otter v. B. P. Co., 50 Barb. 255; Lorillard v. Clyde, 86 N. Y. 384; Stein v. Webb, 65 Cal. 616; Reevev. Hoyt, 17 N. Y. S. R. 157; Christensen v. Eno, 106 N. Y. 97; Coffin v. Ransdell, 9 West. Rep 33; Morrow v. T. & S. Co., 87 Tenn. 262; 1 Morawetz on Corp. § 306; Clark v. Bever, 31 Fed. Rep. 670 ; Sedg. on Stat. Const. [2d ed.] 226.) The defendant corporation can lawfully issue bonds in payment for property. (Lord v. Y. F. G. Co., 99 N. Y. 547; Munson v. S. G. & C. R. R. Co., 103 id. 58.) Plaintiff cannot, as a stockholder, maintain a suit in equity to restrain the proposed action of the company on the ground of illegality unless he shows that he will be pecuniarily damaged thereby. (Thomas v. M. P. Union, 30 N. Y. S. R. 563.)</p> <p>The contract or resolution in this case, the carrying out of which has been perpetually enjoined, was made by five trustees, with the defendant Mullins one of the five, against the protest and rights of the plaintiff, and is unlawful and void. (Green’s Brice’s Ultra Vires, 479 ; Munson v. S. G. & C. R. R. Co., 103 N. Y. 58, 73, 74; Barnes v. Brown, 80 id. 201; Coleman v. S. A. R. R. Co., 38 id. 201; M. E. R. Co. v. M. R. Co., 14 Abb. [N. C.] 103; Risley v. I. B. & W. R. Co., 62 N. Y. 240; Smith v. Lansing, 22 id. 531; Hoyle v. P. & M. R. R. Co., 54 id. 328; Davoue v. Farnning, 2 Johns. Ch. 260; Duncomb v. N. Y. H. & N. R. R. Co., 84 N. Y. 199.) In a case like that here, where authorized acts are threatened to be done by the directors or trustees of the defendant corporation they may be restrained in equity at the instance of a stockholder ; and the unauthorized act or course of dealings prevented by injunction as here. (Dodge v Woolsey, 18 How. [U. S.] 331; Rolf v. Rogers, 3 Paige, 154; Angel & Ames on Corp. 310, 424 ; Bissell v. M. S. & N. I. R. R. Co., 22 N. Y. 275, 289, 293 ; Barnes v. Brown, 80 id. 528, 535, 536 ; Risley v. I. B. & W. R. R. Co., 62 id. 240 ; Anderton v. Aronson, 3 How. Pr. 216; Brinckerhoff v. Bostwick, 88 N. Y. 52; Robinson v. Smith, 69 id. 154; Graves v. Gonge, 69 id. 154; Currier v. N. Y., W S. & B. R. R. Co., 35 Hun, 360; Leslie v. Lorillard, 40 id. 395; Gray v. N. Y. & V. S. S. Co., 3 id. 382 ; Hand v. A. Bank, 55 id. 231; Heath v. E. R. Co., 8 Blatch. 347, 393; Duncomb v. N. Y. H. & N. R. R. Co., 84 N. Y. 190.) The only serious effort of the defendant on the trial of the action seems to have heen to show that the property sought to be purchased of defendant Mullins was worth all the company agreed to pay for it, and that Mullins would make no profit thereby. This is wholly immaterial. (Munson v. S. G. R. R. Co., 103 N. Y. 58, 73, 74; Boynton v. Andrews, 63 id. 94.) There is no authority in law for the issuing of both stock and bonds in the purchase of property, or either of them, at a discount, or for less than their face. This would be the result if $110,000 of the obligations of the company were issued in the payment of $61,000 worth of property. (Duncomb v. N. Y. H. & N. R. R. Co., 84 N. Y. 190.) Stock issued by a corporation for the purchase of property must be issued at its face value, in ' order to make it full-paid stock, and not liable for further calls. (Laws of 1853, chap. 333, § 2; Garnsey v. Rogers, 47 N. Y. 233 ; Boynton v. Hatch, 47 id. 225 ; Boynton v. Andrews, 63 id. 93 ; Douglass v. Ireland, 73 id. 100; Duncomb v. N. Y. H. & N. R. R. Co., 84 id. 190.)</p>

This action was upon a policy of life insurance. The facts, so far as material, are stated in the opinion. The policy, by its express terms, lapsed by reason of non-payment of the premium falling due April 17, 1886, after defendant had duly given the notice required by the act of 1877, Thereby the contract of insurance was terminated, and the defendant discharged from all liability under the policy. (Holly v. M. L. Ins. Co., 105 N. Y. 437; Fowler v. M. L. Ins.

<p>Appeal from judgment of the General Term of the Supremo-Court in the first judicial department, entered upon an order made February 19, 1890, which affirmed a judgment in favor of plaintiff, overruling a demurrer to the complaint 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 judgment against Whitaker, Batterskall and Grainger is a bar to this action. (Robertson v. Smith, 18 Johns. 459; Oakley v. Aspinwall, 4 N. Y. 542; Olmstead v. Webster, 8 id. 413; Suydam v. Barber, 18 id. 468 ; Candee v. Smith, 93 id. 349; Kendall v. Hamilton, L. R. [3 C. P. Div.] 403; L. R. [4 App. Cas.] 504.) The release- executed to Battershall and Grainger is a bar to this action, (Murray v. Fox, 39 Hun, 108 ; 104 N. Y. 382.) The release is a bar to this action, because it was not executed in conformity with section 1942 of the Code of Civil Procedure. (Bank of Poughkeepsie v. Ibbotson, 5 Hill, 461 ; Hoffman v. Dunlop, 1 Barb. 185.) The complaint contains no sufficient allegation that the legal remedies have been exhausted against the surviving partners, or that they are insolvent, or anything equivalent. (Campbell v. Foster, 16 How. Pr. 275 ; Williams v. Hogeboom, 8 Paige, 469 ; Fox v. Meyer, 54 N. Y. 125 ; McElwaine v. Willis, 9 Wend. 549; Crippen v. Hudson, 13 N. Y. 163 ; Lindley v. Simonds, 2 Abb. [N. S.] 69 ; Murray v. Fox, 39 Hun, 108.)</p> <p>Courts of equity will not intervene to enforce the equitable lien so long as the remedy at law is complete and adequate; but when the legal remedy is insufficient, or When there is no legal remedy available, equity will protect the creditor and assist him to enforce his equitable lien against the estate of the deceased partner. (Pope v. Cole, 55 N. Y. 124.) The note was not merged in the judgment. (Code Civ. Pro. §§ 1278, 1942.) It is not essential that the release should set forth ipsissimis verbis the exact language of the statute; it is enough that the language of the release shall show plainly that it was made under the statute; and intended to take effect according to the statute. (Coddington v. Davis, 1 N. Y. 186; Matthews v. C. M. Co., 3 Robt. 711.)</p>

The facts, so far as material, are stated in the opinion. Mo right to appeal from an order denying a motion for a new trial, made before entry of judgment, exists after the right to appeal from the judgment has expired. (Code Civ. Pro. § 1200 ; Derleth v. DeGraff, 104 N. Y. 661; Soverhill v. Post, 22 How.

The material allegations of the complaint are stated in the opinion. The act of the defendant constituted one, entire, inseverable and indivisible wrong, out of which could arise only an entire and indivisible demand.

motion to compel the acceptance of service of an alleged amended answer in the above-entitled action. The facts, so far as material, are stated in the opinion. The order of the General Term is appealable to this court. (Tilton v. Beecher,, 59 N. Y. 176 ; E. L. I. Society v. Stevens, 63 id. 341; Hewlett v. Wood, 67 id. 394; Marvin v. Marvin, 78 id. 541; Brown v. Brown, 58 id. 609.) The court below should have reversed the order and ordered plaintiffs to accept the answer.

<p>Appeal from order of the General Term of the Supreme Court in the first judicial department, made October 15, 1886, which affirmed an order of .the Special Term .adjudging defendant guilty of misconduct in neglecting to pay a personal tax.</p> <p>The nature of the proceeding and the facts, so far as material, are stated in the 'Opinion.</p> <p>If the assessors were without jurisdiction, the assessment was void, and the appellant has the right to resist tins proceeding to collect the tax, without his having taken any proceeding to review the assessment. (Cooley on Tax. [2d. ed.] 751; Mygatt v. Washburn, 15 N. Y. 316; Whitney v. Thomas, 23 id. 281; N. Bank v. City of Elmira, 53 id. 49; Dorwin v. Strichland, 57 id. 492; Dorn v. Backer, 61 id. 261; Stewart v. Crysler, 100 id. 378; McCoy v. Anderson, 47 Mich. 502; Zink v. McManus, 49 Hun, 583.) If the jurisdictional facts do not exist, the determination of the assessors, that those facts do exist, does not establish jurisdiction in them. (In re N. Y. Catholic Protectory, 77 N. Y. 342; Dorn v. Backer, 61 id. 261.) The assessors acted without jurisdiction. (Cooley on Tax. [2d. ed.], 266; United States v. Wiglesworth, 2 Story, 273; Mygatt v. Washburn, 15 N. Y. 316; Mills v.. Comrs. of Taxes, 23 id. 242 ; Williams v. Bd. Suprs., 78 id. 561; Prossor v. Secor, 5 Barb. 608; N. Bank v. of Elmira, 53 N. Y. 55; In re Douglass, 48 Hun, 318 ; St. Paul v. Merritt, 7 Minn. 258.) The constitutional provision that no person shall be deprived of life, liberty or property without due process, of law applies to proceedings for the assessment and collection of taxes. (Stuart v. Palmer, 74 N. Y. 183 ; Remsen v. Wheeler, 105 id. 573; People ex rel. v. McLean, 80 N. Y. 254; Whitney v. Thomas, 23 id. 281, 285.)</p> <p>If jurisdiction to impose the tax existed, it is too late now to reduce the amount of the tax, or inquire into its fairness. (In re Jones, 67 How. Pr. 113 ; 34 Hun, 634; People v. W. S. Bank, 39 id. 525 ; McMahon v. Palmer, 102 N. Y. 176-190.) The board of assessors had jurisdiction to impose the tax. (Laws of 1855, chap. 37.) The appellant does not question the proceedings leading to the imposition of the tax, and the regularity thereof is thus conceded, as set forth in the petition. (Laws of 1882, chap. 410, §§ 817, 861.)</p>

This action was brought by plaintiff to recover his salary for ■six months’ services as secretary of the civil service commission of the city of Buffalo, 1ST. Y. The facts, so far as in this complaint are material, are stated in the opinion. So much of civil service rule III as purports to give the mayor authority to employ a secretary for the civil service commission of Buffalo, and to fix his salary, is void; and section 8 of the Civil Service Law confers no such authority.

Court in the fifth judicial department, entered upon an order made October 19, 1888,-which affirmed a judgment in favor of defendant entered upon a decision of the court' on trial without a jury. The nature of the action and the material facts are stated in ■ the opinion. The non-review by certiorari, as provided in said bonding act, is no estoppel to the right of .said plaintiff to attack the order of the county judge for want of jurisdiction. (Davidsburgh v. L. Ins.

<p>Appeal from judgment of the General Term of the Supreme Court in the fifth judicial department, entered upon an order made January 11, 1889, 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 brought by plaintiff, as a tax-payer of the ■city of Buffalo, to restrain the defendants, the common council and mayor, etc., of said -city, -from authorizing, drawing or paying any warrant for the salary of the defendant Ceriac Diebold, as street and health inspector of the city of Buffalo, oil the ground that his .appointment was in violation of the civil service law and of .the rules prescribed .thereunder by the mayor of said city.</p> <p>The .so-called Civil Service Acts are unconstitutional and void. (Const. art. 1, § 1; Atty. Gen. v. City of Detroit, 24 N. W. Rep. 887, 889 ; 58 Mich. 213 ; People v. Hurlbert, 24 id. 94 ; Barker v. People, 3 Cow. 706.) The civil.service law so far as it applies to the city of Buffalo, is unconstitutional and void. (People ex rel. v. Albertson, 55 N. Y. 50 ; People ex rel. v. McKinney, 52 id. 378; People ex rel. v. Porter, 90 id. 76 ; Schuster v. Bd. of Health, 49 Barb. 450 ; People ex rel. v. Angle, 109 N. Y. 564.) The legislature cannot establish arbitrary exclusions from office, or any general regulations requiring qualifications. The right of suffrage is guaranteed to the citizens of the state by the Constitution, and the right to hold public office must be included in the right to vote. (Taylor v. Porter, 4 Hill, 146; In re Jacobs, 98 N. Y. 106 ; Barker v. People, 3 Cow. 706.) The charter of the city of Buffalo (§ 50, title 2) provides that the street commissioner “ shall, by and with the advice and consent of the common council, ajqpoint an assistant and as many inspectors of health and streets as ■the common council shall authorize.” The common council have authorized the appointment of thirteen such inspectors. It cannot be seriously questioned, that the common council having the power of confirmation of these officers, necessarily possesses the right of rejection. This power of confirmation .and rejection takes these officers out of the classified list. (People ex rel. v. Common Council, 78 N. Y. 39.) No test ean be required for holding office, except such as is provided by the Constitution itself. (State Const. art. 12; People ex. rel. v. Angle, 109 N. Y. 572; Barker v. People, 3 Cow. 706.) When the legislature exempted from the operation of the Civil Service Act persons employed as laborers or workmen it intended all those who were to perform labor- by the day. These inspectors may supervise and direct the work of those under them, but they may be none the less laborers though graded a step higher than the others or called by a different name. (Laws of 1883, chap. 354, § 7.)</p> <p>Laborers are not absolutely excluded from the operation of the Civil Service Act. The provision of section 7 of the original Civil Service Act, in reference to them, has no application at all to the civil service rules established for the cities of the state, but applies only to laborers in the employ of the state itself. (People ex rel. v. Civil Service Bds., 41 Hun, 287; 103 N. Y. 657.) Health and street inspectors, under the Buffalo charter, are not laborers or workmen in the sense in which those words are used in section 7 of the Civil Service Act. They are not “ persons merely employed as laborers or workmen.” (Rep. N. Y. Civil Service Com. 1889, p. 71.) The appellant claimed that these inspectors are “ subordinates of an officer elected by the people, for whose errors or violation of duty he is financially responsible,” and, therefore, that they are exempt from the operation of the Civil Service Acts. This is erroneous. (Walsh v. Trustees, 96 N. Y. 427, 439 ; Walsh v. Mayor, etc., 107 id. 220; 41 Hun, 299 ; Maximilian v. Mayor, etc., 62 N. Y. 160; Ehrgott v. Mayor, etc., 96 id. 264, 273; Turner v. City of Newburgh, 109 id. 301; City of Buffalo v. Holloway, 7 id. 492; Brisso v. City of Buffalo, 90 id. 679 ; Story on Agency, § 319; Smith on Mast. & Serv. 376-378.) Appellants’ contention that the civil service rules could not properly apply to the health and street inspector, for the reason that the municipal civil service law provides, “ nor shall any regulation contravene an existing statute, relating to entrance to said service,” is untenable. (People v. Lacombe, 99 N. Y. 43, 49, 50; .People v. McKinney, 52 id. 374, 383.) Appellants’ contention that the entire civil service legislation of the state is unconstitutional and void, as being repugnant to article 1, section 1 of the Constitution, because the Civil Service Act of 1883 (Chap. 354) in section 1, declares that the governor shall appoint three persons as civil service commissioners, “ not more than two of whom shall be adherents of the same party,” is untenable. (People ex rel. v. Green, 58 N. Y. 295; People v. Bull, 46 id. 57, 68, 69; People v. Briggs, 50 id. 553 ; In re Mayor, etc., 99 id. 569, 583.) There is no provision of the Constitution which prohibits the legislature from prescribing by general laws reasonable and proper qualifications for office holders, where such qualifications are not prescribed in the Constitution itself, and the method of appointment or election is left to the legislature. A fortiori, the legislature is not prohibited from declaring that the persons selected to fill offices which are to be filled by appointment shall, in fact, l}e qualified and fit for their official duties, or from directing that their fitness shall be ascertained either by the officer authorized to make the appoinment or by some other investigating body. This is all that the Civil Service Acts have undertaken to do. (Const. art. 3, § 1; People ex rel. v. Fisher, 24 Wend. 215 ; In re G. E. R. Co., 70 N. Y. 367, 368; People ex rel. v. Dayton, 55 id. 367 ; People v. Briggs, 50 id. 553 ; People v. Bd. Suprs., 17 id. 235 ; Martin v. Hunter, 1 Wheat. 326, 327; M. Bank v. Van Dyck, 27 N. Y. 400; In re Jackson, 14 Blatchf. 245 ; McCullough v. Maryland, 4 Wheat. 316, 421, 423 ; Greaton v. Griffin, 4 Abb. Pr. [N. S.] 310, 315 ; People v. Draper, 15 N. Y. 532, 538 ; People v. Batchelor, 22 id. 128; People v. Woodruff, 32 id. 355, 364; F. Dept. v. A. Co., 106 id. 566, 577, 578; Astor v. Mayor, etc., 62 id. 567, 573-575 ; People v. McDonald, 69 id. 362; In re Mayor, etc., 99 id. 569, 583; People v. Snedeker, 14 id. 52; Ex parte McCollum, 1 Cow. 550; People v. Bull, 46 N. Y. 57; People v. Lacombe, 99 id. 43 ; People v. Hurlburt, 24 Mich. 44; State v. Kennon, 7 Ohio, 546; Connor v. Mayor, etc., 5 N. Y. 285, 295; U. S. v. Curtis, 106 U. S. 371; U. S. v. Perkins, 116 id. 483 ; People ex rel. v. Clute, 50 N. Y. 451; People v. Comstock, 78 id. 356; In re Sullivan, 55 Hun, 285 ; Story on Const. Law, §§ 1843, 1849 ; Brown v. U. S., 113 U. S. 568, 571 ; People v. Dayton, 55 N. Y. 367; Stewart v. Laird, 1 Cranch, 299, 309; People v. Angle, 109 N. Y. 564, 568, 575.)</p>

Supreme Court in the third judicial department made March 16, 1889, which reversed a judgment in favor of defendant entered upon a verdict and reversed an order denying a motion for a new trial and granted a new trial. This action was brought upon two promissory notes executed by defendant. The facts, so far as material, are stated in'the opinion.

<p>Defendant published in its newspaper, an article to the effect that plaintiff was threatened with a breach of promise suit; that he and his friends were moving to effect a reconciliation, but that the young lady insisted upon his marrying her. In an action for libel, held, the publication was libelous per se, as its tendency was to disgrace plaintiff, and bring him into ridicule and contempt; and so, that he was entitled to recover with averments in his complaint or proof of special damage.</p> <p>Upon the trial, plaintiff was permitted to prove, under objection and exception, the nature of his business, and that he was a married man. Held, no error; that this proof was competent, not to show special damage, as none had been alleged, but as bearing upon the hurtful tendency of the libel and the general damage.</p> <p>Defendant offered to show that the article was telegraphed to it by a correspondent; that the latter had heard that a breach of promise suit had been commenced against plaintiff; also to show how and where he obtained the information. This evidence was excluded. Held, no error; that defendant, having published the libel without any inquiry and without any knowledge on the subject, was not entitled to the evidence ' for any purpose; that its correspondent was not its agent in the sense that his information was its information.</p> <p>Defendant also offered to prove that an action for breach of promise of marriage was actually commenced against another person of plaintiff’s name, and that its correspondent had heard of that suit before sending the article to defendant. This was excluded. Held, no error; that defendant was not entitled to the benefit of such á fact, of which it had no knowledge, in mitigation of damages.</p>

<p>Appeal from judgment of the General Term of the Supreme Court it the fourth judicial department, entered upon an order made November 13, 1888, which affirmed a judgment in favor of plaintiff against defendants Henry J. Vrooman and Eben 0. Reynolds entered upon a decision of the court on trial at Special Term, and dismissed an appeal from said judgment by the defendant Helen Reynolds.</p> <p>This action was brought to have an agreement executed by Henry J. Vrooman declared a mortgage and a lien upon certain real estate described in a prior mortgage executed by Eliza A. Vrooman, and for a foreclosure of said mortgage.</p> <p>William Miller, by will dated June 6, 1840, and proved August 2, 1843, among other things, after making certain bequests, devised and bequeathed the equal, undivided one-third part of the residue of his real estate and personal to William Broadwell in trust to pay the interest, rents and profits and increase, to his daughter, Eliza Ann Vrooman. during her life, and “ upon the further trust that upon the decease of the said Eliza Ann, the said William Broadwell shall and will .convey and deliver the said estate, real and personal, and all the increase in his hands, to the right heirs then living of the said Eliza Ann, which said conveyance * * * shall he in fee with the' proper words of perpetuity to vest an estate of inheritance; ” the trustee was also authorized to sell and dispose of the property and invest the proceeds in other real estate or securities if he thought best. The real estate described in'the complaint was owned by Miller at his death, and thereafter it ivas occupied by Mrs. Vrooman as the third, or part of the third, of which she ivas entitled to the rents and profits under the will. On or about the 17tli of January, 1879, the plaintiff, upon the procurement of the defendant Henry J. Vrooman, and upon his statement that Mrs. Vrooman owned the property, loaned to her $1,000, taking from her a mortgage on the said premises bearing date January 1, 1879, and payable, principal in three years, interest annually. Mrs. Vrooman died June 22,1879; her heirs were the defendants Henry J. Vrooman and Helen Reynolds. The true state of the title was unknown to the plaintiff at the time she took her mortgage. Hpon its becoming know to her, an application on her behalf was made to the defendant Vrooman to give her security upon his interest in the premises; he thereupon executed an agreement in writing under seal, by which he covenanted and agreed with plaintiff that her mortgage should be a lien on the property as against himself and his heirs, and that he would pay the said sum of $1,000 and interest. This instrument was acknowledged, hut not in form to entitle it to be recorded. It was, however, on the 18th of March, 1880, left in the clerk’s office for record, and was recorded in the book of assignments and satisfactions. Soon after July' 31, 1880, it was also entered in a book of mortgages, but not in its regular order. The summons in this action was served on the defendant Vrooman, on the 15th or 18th of July, 1880. A notice of pendency was filed on July 31, 1880, but no complaint was filed prior to May 9; 1881. After the commencement of the action the defendant Vrooman, by warranty deed dated July 19, 1880, acknowledged July 28, 1880, and recorded July 30, 1880, conveyed all his interest in the premises to the defendant Eben C. Reynolds, for the consideration, as therein expressed, of $3,000. As part of the consideration said Reynolds agreed to pay certain debts of his grantor amounting to $860. Subsequently said Reynolds was brought in as a party; he purchased' in good faith and without notice of the agreement between his grantor and plaintiff; he received such notice, however, before payment of the debts he had so contracted to pay. The complaint was dismissed as to defendant Helen Reynolds. Judgment was rendered against Vrooman for the amount of the original mortgage, and against Eben 0. Reynolds for the $860 and interest.</p> <p>The defendant, Eben C. Reynolds is a bona fide purchaser, without notice, and is entitled to the protection of the Recording Act. (Warren v. Wilder, 114 N. Y. 209 ; Sargent v. E., etc., Co., 46 Hun, 19 ; Seaman v. Hasbrouck, 35 Barb. 151, 155; Lawrence v. Fox, 20 N. Y. 268; Merritt v. Millard, 3 Abb. Ct. App. Dec. 291; Williams v. Shelly, 37 N. Y. 375 ; Turner v. Jaycox, 40 id. 474; Barker v. Bucklin, 17 N. Y. 49; Westfall v. Parsons, 16 Barb. 645 ; Beveredge v. N. Y. E. R. Co., 112 N. Y. 1; Gold v. Phillips, 10 Johns. 412; Elwood v. Monk, 5 Wend. 235 ; Benedict v. Driggs, 34 Hun, 94; S. C. P. Co. v. Wing, 85 N. Y. 421; Savage v. O'Niel, 44 N. Y. 301; Woodworth v. Sweet, 51 id. 8; Jaycox v. Caldwell, Id. 395.), The alleged agreement of Vrooman, dated March 15, 1880, not having been witnessed or acknowledged according to law, could not, as against defendant Reynolds, operate to convey or transfer any interest whatever in the land. (3 R. S. 2194, § 137; Chamberlain v. Sprague, 86 N. Y. 603 ; Miller v. Wright, 109 id. 194 ;. Gerard on Tit. to Real Estate, 283 ; Hawley v. James, 16 Wend. 61; Dusenbury v. Hoyt, 53 N. Y. 528 ; 8 Wait’s Act. & Def. 19 ; In re Wilbur, 104 N. Y. 193 ; Provost v. Provost, 70 id. 145, 146; 3 R. S. [7th ed.] 2175, §§ 5, 9, 10; Coit v. Rolston, 44 Hun, .548 ; Snell v. Tuttle, 44 id. 324 ; Moore v. Littel, 41 N. Y. 66; Miller v. Wright, 14 N. Y. S. R. 814; Manice v. Manice, 43 N. Y. 364; De Kay v. Irving, 5 Den. 649; Quin v. Skinner, 49 Barb. 132; Colie v. Jamison, 4 Hun, 286; In re Livingston, 34 N. Y. 567; 2 Perry on Trusts, § 320.) There is no legal proof to establish the contents of the alleged agreement as against a bonco fide purchaser. (Edwards v. Noyes, 65 N. Y. 127; Kent v. Harcourt, 33 Barb. 494; Kerney v. Mayor, etc., 92 N. Y. 617; 1 Greenl. on Ev, § 87; Quitter v. Jorss, 14 C. B. [N. S.] 747 ; Gully v. Bishop, 4 Bing. 290 ; Brewster v. Sewell, 3 B. & Ald. 296; Freeman v. Arkill, 2 B. & C. 495 ; Graham v. Crystall, 2 Abb. Ct. App. Dec. 264.) The facts alleged in the complaint are not sufficient to sustain the judgment. (Day v. Town of New Lots, 107 N. Y. 154; Truesdale v. Sarles, 104 id. 164; Wright v. Delafield, 25 id. 270 ; Marguat v. Marguat, 12 id. 336 ; Spears v. Mayor, etc., 87 id. 376; Stevens v. Mayor, etc., 84 id. 29 ; Wheelock v. Lee, 74 id. 495.)</p> <p>Under the will of William Miller, the title to the premises described in the complaint vested in William Broadwell, as trustee. On his death the title vested in the court, and there remains to this day. (3 R. S. 2181, § 55; Id. 2183, § 68; Clark v. Crego, 51 N. Y. 646; McCanghal v. Byam, 27 Barb. 376-407; Glen v. Gibson, 9 id. 634-638; Hawley v. Ross, 7 Paige, 103-107; Bisham on Prin. of Equity, 68; Fellows v. Heermans, 4 Lans. 230 ; Sterricker v. Dickinson, 9 Barb. 516 ; N. Y. D. D. Co. v. Stillman, 30 N. Y. 174.) The contract made by Vrooman was not “ a grant in fee or of a freehold estate,” for the reason that he had no such estate to grant. (Delaney v. MoCormack, 88 N. Y. 174; Bissell v. Morgan, 56 Barb. 369-374.) It was not attempted by the agreement which was executed by Henry J. Vrooman to transfer a fee or freehold estate to the plaintiff, and, therefore, the agreement was valid. (Cartwright v. Cady, 21 N. Y. 243; Power v. Lester, 23 id. 527, 531 ; Merritt v. Bartholis, 36 id. 44; Crew v. Marsh, 54 id. 599 ; Westbrook v. Gleason, 79 id. 23 ; Mills on Eq. Mort. 1; In re Hine, 1 Paige, 125 ; Chase v. Peck, 21 N. Y. 581; Payne v. Wilson, 74 N. Y. 348.) The equitable lien or right of plaintiff could not be divested or defeated by a conveyance from Henry Vrooman to a person having knowledge of the existence of such lien or right; nor by a conveyance to a person who obtained knowledge of the lien'or right before he paid the full consideration. (Weaver v. Barden, 49 N. Y. 291; Westbrook v. Gleason, 79 id. 28 ; Young v. Guy, 87 id. 458; Sargent v. E. B. A. Co., 11 N. Y. S. R. 68.) The court found that Reynolds had actual notice of the- equitable lien of the plaintiff before he paid the full consideration for the property, and expressly refused to find that he acted in good faith. This being the case, he was bound to account to plaintiff for the unpaid balance of the consideration after obtaining knowledge of her lien. (Weaver v. Barden, 49 N. Y. 291; Westbrook v. Gleason, 79 ;id. 28; Young v. Gray, 87 id. 458; Dows v. Kidder, 84 id. 135 ; Sargent v. E. B. A. Co., 11 N. Y. S. R. 68 ; Claflin v. Gordon,, 39 Hun, 54-59 ; Warren v. Wilder, 114 N. Y. 209.) The complaint is broad enough to enable the court to give judgment as it deems best. (Spears v. Mayor, etc., 87 N. Y. 376; Benedict v. Benedict, 55 id. 625 ; Day v. Town of New Lots, 107 id. 154.) There is no exception to the admission of, or refusal to admit evidence, which, had the ruling been otherwise than it was, would have affected the result in the action. Hnless such is the case the exceptions will be disregarded. (King v. Whaley, 59 Barb. 71; In re N. Y. C. & H. R. R. R. Co., 90 N. Y. 342.)</p>

” (Chap. 377, Laws of 1887, as amended by chap. 181, Laws of 1888.) An agent of Bolen & Byrne, soda-water manufacturers, •duly made oath before the respondent that said firm were the owners of certain syphons having their names and other marks and devices upon the bottles, and that he had reason to believe, and did believe, that said property was being unlawfully used by one Adler, who was manufacturing and selling soda, mineral and aerated waters, and that he liad been…

<p>Appeal from judgment of the General Term of the Supreme Court in the fifth judicial department, entered upon an order made October 21, 1887, which affirmed a judgment in favor of defendant 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, so far as material, are stated in the opinion.</p> <p>The court erred in excusing for cause the juror John Crouse. (Sanches v. People, 22 N. Y. 147; Pender v. People, 18 Hun, 560; Thomas v. People, 67 N. Y. 218; Balbo v. People, 80 id. 484; Cox v. People, Id. 500 ; Greenfield v. People, 74 id. 277; People v. Allen, 43 id. 28; Phelps v. People, 72 id. 334; O’Brien v. People, 36 id. 276; People v. Cornetti, 92 id. 85 ; People v. Casey, 96 id. 115; Hildreth v. City of Troy, 101 id. 234.) It was error to let Dr. Lynde answer the hypothetical question put by defendant, because the defendant was concluded by the answer he obtained from Dr. Lapp. (Misland v. Boynton, 79 N. Y. 630; Carpenter v. Ward, 30 id. 243; Plato v. Reynolds, 27 id. 586; Van Zandt v. M. B. L. Ins. Co., 55 id. 169; Manke v. People, 17 Hun, 416 ; Kennedy v. People, 39 N. Y. 255 ; Millard v. Brown, 35 id. 297; Sanchez v. People, 22 id. 154; Carpenter v. E. T. Co., 71 id. 579, 580; Guiterman v. L., etc., S. S. Co., 83 id. 365; People v. Lake, 12 id. 363; Rawles v. A. M. L. Ins. Co., 27 id. 293; Ferguson v. Hubbell, 97 id. 507.) The defendant was allowed to introduce evidence as to the scrofulous condition of the plaintiff’s child, and also as to the scrofulous condition of John Hite. This was error. (People exrel. v. Carney, 29 Hun, 47; Petrie v. Howe, 4 T. & C. 85 ; Lathrop v. Bramhall, 64 N. Y. 365 ; Seeley v. Engell, 13 id. 542-547; Miller v. Montgomery, 78 id. 282-286.) The defendant attacked the character of the plaintiff by proof of specific acts and conduct on her part. The-door was opened wide for this class of evidence. No restriction as to time was imposed; any act of hers, however remote from the 26th of November, 1880, was shown. This testimony tended to prejudice the jury, and should have been excluded. (N. Y. G. & I. Co. v. Gleason, 78 N. Y. 503; Baird v. Gillett, 47 id. 186, 208; Green v. Green, 26 Mich. 437; Blackburn v. Beal, 21 Md. 208; Anderson v. R., W. & O. R. R. Co., 54 N. Y. 334; O'Sullivan v. Roberts, 7 J. & S. 360; Hutchins v. Hutchins, 98 N. Y. 65; La Beau v. People, 34 id. 222; People v. Jackson, 3 Park. Cr. R. 391; Woods v. People, 55 N. Y. 515; Brakeman v. Rose, 14 Wend. 105; People v. Lamb, 2 Keyes, 360, 371; Eggler v. People, 56 N. Y. 642; Thomas v. People, 67 id. 218; Carroll v. Deimel, 95 id. 252; Neudecker v. Kohlberg, 81 id. 296; Worrall v. Parmelee, 1 id. 519; Bearss v. Copley, 10 N. Y. 93; Starbird v. Barrons, 43 id. 200; O'Hagan v. Dillon, 76 id. 170.) The testimony of the plaintiff called out by defendant’s counsel upon cross-examination, under plaintiff’s objection and exception, and the testimony of defendant’s witnesses given afterwards, under like ruling, was error, as being an abuse of discretion. (G. W. T. Co. v. Loomis, 32 N. Y. 127; Corning v. Corning, 6 id. 97; La Beau v. People, 34 id. 222.) The court erred in allowing Howe, a witness for defendant, to give the defendant’s declarations, in his own favor, made to third persons, and not in the plaintiff’s presence. (Real v. People, 42 N. Y. 279; Carpenter v. Ward, 30 id. 243; Burst v. S. A. R. R. Co., 72 id. 542; People v. Irving, 95 id. 543; Bearss v. Copley, 10 id. 93.) There was a mass of testimony called out by defendant in his cross-examination of the plaintiff which her counsel objected to. The only evident purpose of this was to get something upon which to dispute her afterwards. Permitting this, and also permitting the defendant afterwards to call numerous witnesses to give a different statement of such matters, under the plaintiff’s objections, is error, for which the judgment should be reversed. (Harris v. Wilson, 7 Wend. 57; Howard v. C. F. Ins. Co., 4 Den. 502; Mott v. People, 63 Barb. 618; 1 Greenl. on Ev. §§ 51, 52, 448, 450; Plato v. Reynolds, 27 N. Y. 586; Bearss v. Copley, 10 id. 93 ; B. Church v. B. F. Ins. Co., 28 id. 159; Gondolfo v. Appleton, 40 id. 533.) The court below erred in refusing to strike out all testimony which tended to show lewd conduct of plaintiff with others than defendant, and not in his presence, which the court refused to do. (People v. Jackson, 3 Park. Cr. R. 391; Miller v. Montgomery, 78 N. Y. 282-286.) The plaintiff slrould have been permitted to give evidence as to her general good reputation. (Annesley v. Angelesea, 17 How. St. Tr. 1139; Starkie on Ev. [9th ed.] 252; R. v. Clarke, 2 Starkie, 242; Bishop of Durham v. Beaumont, 1 Camp. 207; Commonwealth v. Gray, 129 Mass. 474; Sweet v. Sherman, 21 Vt. 23; Carter v. People, 2 Hill, 317; People v. Rector, 19 Wend. 569 ; People v. Gay, 7 N. Y. 378, 382; Adams v. G. Ins. Co., 70 id. 166, 170; Pratt. v. Andrews, 4 id. 493.) The court erred in striking out the evidence of Beuben Hite. (Wallis v. Randall, 81 N. Y. 164, 167; Sherwood v. Tittman, 55 Penn. St. 77; Jewett v. Banning, 21 N. Y. 27; Carpenter v. Halsey, 57 id. 658; Ward v. W. Ins. Co., 6 Bos. 229.) The court erred in excluding the testimony of the physician John S. Halbert. (Bancroft v. Sheehan, 21 Hun, 550; Chadburn v. Franklin, 5 Gray, 312; Scott v. Woodward, 2 McCord, 161; Jones v. Smith, 64 N. Y. 184; Holten v. Holten, 5 Wkly. Dig. 14; Richardson v. Van Nostrand, 43 Hun, 299 ; Higgins v. People 58 N. Y. 377; Allis v. Leonard, Id. 288; Massoth v. D. & H. C. Co., 64 id. 524, 533; Cranston v. N. Y. C. & H. R. R. R. Co., 103 id. 614; Seybolt v. N. Y., L. E. & W. R. R. Co., 95 id. 562.) This is a civil action for an assault and battery. The allegations of her consequent pregnancy are merely in aggravation of damages. If she “ resisted for a time ” then the allegation of assault was established, and it was error to instruct the jury that the verdict must be for no cause of action. (Cushman v. Waldell, Baldw. 58; Prentiss v. Shaw, 56 Me. 427; Voltz v. Blackmar, 64 N. Y. 440 ; State v. Malcolm, 8 Ia. 413; People v. Yslas, 37 Cal. 630; Hays v. People, 1 Hill, 351; Commonwealth v. Ruggles, 6 Allen, 588; Kirkland v. State, 43 Ind. 146; Johnson v. State, 35 Ala. 363; State v. Baker, 65 N. C. 322; Heady v. Wood, 6 Ind. 82; Logan v. Austin, 1 Stew. 476; Adams v. Wagoner, 33 Ind. 531; Bell v. Hansley, 3 Jones, 131; Tyler v. Brock, 68 N. Y. 418; Freund v. Paten, 10 Abb. [N. C.] 311.)</p> <p>The exception taken by plaintiff’s counsel to the ruling of the court, sustaining defendant’s challenge for cause of the juror John Grouse was untenable. (Abb. Tr. Brief, 19, 21; People v. Tyrrell, 21 Wkly. Dig. 493; Laws of 1872, chap. 475; Code Crim. Pro. § 376 ; Code Civ. Pro. § 1180.) The plaintiff’s character for chastity was directly in issue upon the question of damages, and it was also in issue upon the subject of the willingness or reluctance of the plaintiff in regard to the act complained of, and evidence was admissible upon both of these questions. (Ford v. Jones, 62 Barb. 484; Bracy v. Kibbe, 31 id. 273; Wandell v. Edwards, 25 Hun, 498; Gulerette v. McKinley, 27 id. 320; In, re Yates, 99 N. Y. 95.) Exceptions to evidence by the physicians as to the improbability of conception taking place under circumstances related by plaintiff are untenable. (Dillebar v. H. Ins. Co., 87 N. Y.79 ; Sterns v. Field, 15 Wkly. Dig. 409 ; 90 N. Y. 640; Van Wycklen v. City of Brooklyn, 118 id. 424.) The rule allowing specified acts of misconduct on the part of plaintiff to be proved, does not allow proof of the acts of misconduct on the part of defendant. (People v. Zimmerman, 4 N. Y. Cr. Rep. 272.) Plaintiff’s offer to show by Mary Dietz that some time before the 26tli of Movember, 1880, defendant offered her some indignity was properly excluded. (People v. Zimmerman, 4 N. Y. Cr. Rep. 272.) The court properly excluded evidence of the general reputation and character of plaintiff. Proof of her general reputation or character was not competent until attacked by proof on defendant’s part. (Bracy v. Kibbe, 31 Barb. 273.) General exceptions are not available. (Read v. Nichols, 118 N. Y. 224; Newall v. Bartlett, 114 id. 399; Tousey v. Roberts, Id. 312; Higgins v. People, 1 Hun, 307; 58 N. Y. 377; Conkey v. People, 5 Park. Cr. Rep. 31-35; People v. Dohring, 59 N. Y. 374; Oleson v. State, 11 Neb. 276 ; People v. Morrison, 1 Park. Cr. Rep. 625; People v. Quin, 50 Barb. 128; Reg. v. Hallett, 9 C. & P. 748; Don Moran v. People, 25 Mich. 356; Whittaker v. State, 50 Wis. 518 ; Crossman v. Bradley, 53 Barb. 125 ; Smith v. Fingar, 1 Alb. L. J. 101; Ford v. Jones, 62 Barb. 484 ; People v. Branskey, 32 N. Y. 484-487.)</p>

This action was brought to recover for the alleged conversion of certain personal property belonging to plaintiffs. The facts, so far as material, are stated in the opinion. The defendant Sutherland, was the owner of the real property demised by the lease of the 1st of February, 1872, and JamesPayne and the executrix of his will, Jemima Payne, were merely mortgagees, at all times from the date of that lease to the commencement of this action.

This was an action of ejectment brought to recover lands used and occupied by defendant as part of its railroad in Genesee county. ' The facts, so far as material, are stated in the opinion. The Tonawanda Bailroad Company, by its proceedings in the Vice Chancellor’s Court, did not acquire in tlie first instance a right of use in these lands for more than fifty years, the original limit of the company’s chartered existence. (Cooley on Const.

This was an action upon a promissory note made by defendants to the order of one John Stinson. Assuming that it is proved in this case that the negotiable promissory note in suit was in the possession of some person representing Stinson, after it became due, there is proof sufficient to go to the jury that the note was then the property of Stinson.

■Appeal by the people from a judgment of the general term of the supreme court, in the first department, reversing the conviction of defendant, Thomas Moran, in the court of general sessions, of an attempt to commit larceny in the. second degree. The evidence will be found in the report of the case at the general term (T N. Y. Grim. Rep. 329).

This action was brought by plaintiff as assignee of a contract between one Gavin and defendant, The Mayor, etc., of the city of Mew York, for improving Lexington avenue in said city, to recover a balance alleged to be due on said contract, and to determine as to conflicting claims of the other defendants to said balance. The facts, so far as material, are stated in the opinion.

The nature of the action and the facts, so far as material, are stated in the opinion. Fo title to out-of-town drafts vested in the Exchange Bank upon their deposit in the absence of express proof of a contract to the contrary, but they were received and held by it as agent of the depositor, and when the bank at the time was irretrievably insolvent, such depositor can reclaim such drafts or their proceeds.

This action was brought to recover damages for the death of Thomas McGovern, through the alleged negligence of defendant. The facts, so far as material, are stated in the opinion. It is the duty of the master to provide proper and safe machinery, and to provide a safe place for the performance of the work.

From May 17, 1830, to January 9, 1846, Matthew Sayre, the father of the claimant, owned certain land at Horseheads, Chemung county, consisting of 138 acres. In or about the year 1832, the state constructed the Chemung canal through such land, and about the same time constructed near to it a feeder for such canal through coarse gravel about thirty feet higher than the canal where it passes through such land.

judgment in favor of defendants, entered upon the report of a referee. This action was brought to recover possession of amine and to have plaintiff adjudged to be the owner of the mining rights upon a farm belonging to Erastus Spaulding on June 13,1864, which plaintiff claimed were transferred to him by an agreement executed that day. The provisions of the agreement and the facts, so far as-material, are stated -in the opinion.

affirmed an order-denying a motion for a new trial. This was an action upon an accident policy or certificate of insurance issued by the defendant. The defendant isa corporation organized under the laws of this state for the purpose of carrying on the business of accidental or casualty insurance on the co-operative or assessment plan. On the 28th of September, 1883, Frederick J'.

The complaint in this action alleged and the trial court found, m substance, the following facts: In March, 1883, the corporation plaintiff and the defendant entered into an agreement, of the body of which the following is a copy: “ This agreement, made this twelfth day of March, A. D. 1883, by and between the Hew York, Lake Erie and Western Railroad Company, party of the first part, and the Bradford, Eldred and Cuba Bailroad Company, herein called the Eldred Company, party…

This action was brought to recover the amount of two bills of foreign exchange drawn by defendants, who were bankers in the city of Hew York, made payable to the order of plaintiffs who were copartners as wholesale merchants carrying on a mercantile business at Indianapolis. The trial court found in substance, these facts, among others: The business of plaintiffs’ firm required the frequent purchase by it of foreign exchange.

The nature of the action and the facts, so far as material, are stated in the opinion. A natural person, under the facts shown in this case, would be liable. (1 Pars. on Cont. 41; Story on Agency, §§ 17, 20; Whart. on Agency, § 121; U. Ins. Co. v. Wilkinson, 13 Wall. 222; Beebe v. Ins. Co., 25 Conn. 51 ; Wild v. N. Y. & A. M. Co., 59 N. Y. 644 ; Purvis v. Coleman, 21 id. 111; Seymour v. Matteson, 42 How.

The petitioner was organized under chapter 252, Laws of 1884. In November, 1887, it acquired, for a consideration, the consent of the Rochester and Charlotte Turnpike Company for the construction and operation of a street surface railway on the highway leading from Rochester to Charlotte. This turnpike company had been organized for the purpose of maintaining this highway as a turnpike, with a charter for thirty years.

This action was brought to recover a trunk and its' contents .and damages for the detention- thereof. The facts, so far as material, are stated in the opinion. The receipt for the check was not a receipt for the trunk. (Becht v. Corbin, 92 N. Y. 658.) Where plaintiff has been nonsuited, all disputed facts are to be decided in his favor, and all presumptions and inferences which he had a right to ask from the jury are to be conceded to him. (Cook v. N. Y. C. R. R. Co., 1 Abb.

The nature of the action and the material facts are stated in the opinion. The power of a member of the .Knights of Honor to change Ms beneficiary and the disposition of the fund, under the laws of the organization, is absolute. (N. A. Assn. v. Kirgin, 28 Mo. App. 80, 83; S. C. R. A. v. Cappella, 41 Fed.

The nature of the action and the facts, so far as material, are stated in the opinion. The Special Term erred in malting its computations to ascertain what the surplus annual receipts of tolls on plaintiffs road were during the several years referred to.

This action was brought to recover a balance due on a contract for excavating upon certain premises. The facts, so far as material, are stated in the opinion. The plaintiff in his complaint asked for a reformation of the contract. He did not offer any evidence to show that it had been fraudulently procured, or that there had been a mutual mistake of parties; or that there was a mistake on one side and fraud on the other.

This action was brought to recover damages for injuries received by plaintiff while a passenger on one of defendant’s horse-cars alleged to have been caused by defendant’s negligence. The facts, so far as material, are set forth in the opinion. The plaintiff failed to establish any negligence on the part of the defendant» or its gervants, causing tlie injury complained of.

The complaint alleged, in substance, these facts: Plaintiffs, who were copartners doing business in the city of Hew York, were dealing with and making purchases from the firm of Ilenry Alcock & Co., of which firm Henry and John Alcock were ■copartners.

This action was brought by plaintiffs as trustees under the will of Henry R. Low, deceased, to conqpel the specific performance, on the part of defendant, of a contract to purchase certain of the real estate of which the testator died seized. The facts, so far as material, are stated in the opinion.

The nature of the action and the averments of the complaint, so far as material, are stated in the opinion. There being no allegations of negligence contained in the complaint, the action cannot be maintained. The only ground of liability alleged is failure on the part of defendants’ testator to perform a duty imposed upon him by statute.

a new trial. _ The nature of the action and the facts, so far as material, .are stated in the opinion. The court erred in submitting :to .the jury the question whether the defendants had proved -certain facts alleged in the answer in mitigation of damages when no proof whatever had been given or offered by the defendants to sustain such allegations. (Willower v. Hill, 72 N. Y. 36, 38; White v. Cheesebro, 16 Wkly. Dig. 186; Ball v. E. P. P. Co., .38 Hun, 11, 16; Code Civ.

The facts, so far as material to the question discussed, are stated in the opinion. The object and the only object of a “ case ” on a motion of this character is to show what did appear' on the trial, so that it may readily appear that the proposed new evidence is not cumulative.

These are appeals from orders of the General Term of the Supreme Court in the third judicial department, made February 4,1890, which affirmed orders of the Special Term denying motions to vacate a judgment of the Special Term in this action against defendant George B. Chase for the sum of $52,803.73, rendered June 4, 1880, and also the judgment of the General Term affirming said judgment, rendered July 21, 1883, and to set aside and vacate an appearance in said action for…

This was an action of ejectment. The complaint, after alleging the seizure of certain real estate by William H. Masterson and. Peter Masterson, as tenants in common, sets forth William’s death and the devise in his will of the property to his executor, upon a certain trust during his wife’s life, or widowhood. The provision of the will was set forth in full in the complaint and is given in the opinion.

This action was brought to recover commissions claimed to have been .earned as broker, in selling certain lands for the defendant. The facts; so far as material, are stated in the opinion. The trial judge was not justified in refusing the defendant’s request to go to the jury upon the ground that she first asked for a nonsuit. (Kohler v. Adler, 18 N. Y. 289.) Ho sale of the property was effected.

The nature of the action and the facts so far as material, are stated in the opinion. The plaintiffs fail to show any ownership of the granite blocks in question. (Grubb v. Bayard, 2 Wall., Jr, 81; 2 Washb. on Real Prop. 376; Doe v. Wood, 2 B. & A. 724, 738; Clement v. Youngman, 40 Penn.

This action was brought for the foreclosure of a mortgage. 'The facts, so far as material, are stated in the opinion. The defendant Marie H. McLean was improperly made such, and the complaint should have been ■dismissed as to her. (E. F. Co. v. Lenk, 6 Paige, 637; Jones v. St. John, 4 Sandf. Ch. 208; McReynolds v. McManus, 2 Keyes, 214; 3 Barb.

This action was brought to recover damages for injuries received by plaintiff in consequence of being struck by a train on defendant’s road.

The nature of the action- and the facts, so far as material, are stated in the opinion. The rules for construction of statutes require that language shall have its ordinary or usual force, and that every expression shall be given weight, if possible, without nullifying the purpose of the law.

The facts, so far as material, are stated in the opinion. The General Term erred in its opinion that these proceedings, embracing the trial, conviction and sentence of the relator, were not in the nature of criminal proceedings, and that consequently he was not entitled ' to the protection afforded to an accused person by the Constitution and laws of this state.

The facts, so far as material, are stated in the opinion. The justice had no jurisdiction of the matter, and the order is, therefore, void. (Robinson v. O. S. N. Co., 112 N. Y. 315; C. C. Bank v. Judson, 8 id. 254; Risley v. P. Bank, 83 id. 318-337; Davidsburg v. L. Ins.

The referee found that the provision mentioned had been abrogated. The general facts connected with the litigation are as follows: In September, 1883, the parties to this action, with two other persons (whose interests were subsequently acquired by the plaintiff Stannard), bought several old ships of the government of the United States, with a view of stripping them and selling the hulls.

The complaint herein alleged in substance that George P. Breen, as agent of plaintiff’s testatrix, received §1,200, which was afterwards paid by him to the defendant, to the use of the ■ plaintiff’s testatrix, and that defendant refused to pay over the same to the plaintiff. The defendant denied the indebtedness, and alleged that he received the money, but that it was the individual property of Thomas H. Breen, whose assignee had sued to recover the same.

<p>While, as a general rule, an appropriation by an insolvent firm of the partnership property to the payment of the individual debt of one of its members is fraudulent as against the partnership creditors, where such an individual debt has been assumed by the firm when solvent and made its own upon a sufficient consideration, a subsequent appropriation of firm property to the payment thereof is not unlawful, in the absence of any actual fraud, and the burden of showing the fraud is upon the party claiming it.</p> <p>In an action to set aside an assignment for the benefit of creditors, made by a firm composed of A. and H., because of an alleged fraudulent preference, it appeared that at the time of the organization of the firm M. contributed $3,000 to its capital, which he borrowed from his father upon Iris own note, made payable on demand. A., who had been in the business before, contributed such assets as he had on hand; these proved to be of no value. The capital contributed by M. was all that the firm had, and this went into the hands of A., who deposited it in his own name and used part of it for the payment of his own debts. Thereafter, with the consent of both partners, M’s note was delivered up and canceled upon delivery to his father of the firm note of the same amount and date, but made payable one year from date. It did not appear that at this time the firm was insolvent. By the assignment the father of M. was made a preferred creditor, the preference including the note. Held, that such preference, of itself and in the absence of any finding or evidence of actual fraud, did not invalidate the assignment; that the evidence warranted a finding that the money loaned was really advanced for the benefit of the firm, and so, that the debt was enforceable as a firm' obligation; but that, assuming it to have been simply the debt of one of the partners, the surrender by the creditor of a note enforceable at any time, and the taking in its place, with the consent of the copartners, of the firm note not due until the end of the year, .would, in the absence of a finding that the firm was at the time insolvent, or that the change was made for a fraudulent purpose, constitute a good consideration.</p>

The nature of the action and the facts, so far as material, are stated in the opinion. The Statute of Limitations is a complete defense to this action as against the National Machine Company. (Newham v. May, 13 Price, 749; Russell v. Clark, 7 Cranch. 69 ; Hardwick v. Forbes, 1 Bibb. 212; Askew’s Case, L. R. [9 Ch. Div.] 664; Bradley v. Bosley, 1 Barb, Ch. 125 ; Hull v. Ely, 2 Abb. [N. C.] 440 ; Hatch v. T. Co., 9 id. 228; Hammond v. Morgan, 101 N. Y. 187; Story’s Eq.

<p>The rule that in criminal cases the defendant is entitled to the benefit of a reasonable doubt applies not only to the case as made by the prosecution but to any defence interposed.</p> <p>The mere fact of killing raises no legal implication of the crime of murder, and a charge of the judge to the jury upon a trial for murder is erroneous which is calculated to impress upon the jury a conviction that proof of the homicide carries with it a legal implication of crime, which shifts the burden of proof upon the prisoner and requires him to satisfy the jury that the killing was either justifiable or excusable at the peril of a conviction if he should fail in his attempt.</p> <p>On a trial for homicide, the judge charged the jury after reading the definitions of the statute, and fairly and correctly explaining its classification of the different forms of homicide: “Now it is for you to say to which one of these classes of crime this evidence points. Here has been a homicide. Here has been a human life taken. It becomes a serious question as to whether or not a man should execute the law or execute vengeance upon his fellow. If he does so, he must do so either at the peril of being punished for it, or being able to excuse himself when called upon to answer for the wrong, within one of the excuses that is fixed and given in the law. If he is not, he must be found guilty of one or the other of the crimes which are imputed to him by reason of the homicide. ... If you wish to reach the conclusion that he is justified in taking the life of this man within the definitions given in the books, not within any notions of your own, but within the definitions given in the law, if you reach the conclusion that he was justified, then your verdict will be one of acquittal.” Held, to be erroneous as conveying to the jury the idea that to acquit they must reach the conclusion that a justification has been established by defendant, and that a conviction must follow unless defendant has justified or excused the act.</p> <p>While the jury may infer the legal implication of the crime of murder from the bare fact of a homicide, even though no motive be assigned for the act, and the case be bare of circumstances of explanation, yet the inference is one of fact which the jury must draw, if such seems to them to be their duty, and not one of law, which the court may impose upon their deliberation, and then, upon that assumption, shift the burden upon the prisoner and require him to prove that no crime has in fact been committed.</p>

Appeal under section 1336 of the Code of Civil Procedure from a final judgment of the Superior Court of the city of Buffalo, in favor of plaintiff, entered upon an order of Special Term, made December 31, 1888, after an affirmance by the General Term of said court of an interlocutory judgment entered upon the report of a referee. The nature of the action and the facts, so far as material, are stated in the opinion.

The nature of the action and the facts, so far as material, are stated in the opinion. The law relating to endowments as it existed at the time of Eothschild’s decease and not that in force when the declaration in question was made, is the law which governs the disposition of the $1,000 benefit. (Durian v. Central Verein, 7 Daly, 168; McCabe v. F. M. T. A. B. Society, 24 Hun, 149.) The marriage of defendant with William Eothschild did not»annul the declaration.

term,' third department, affirming judgment in favor of, plaintiff after a. trial by the court at circuit without a jury.

<p>Appeal from judgment of the General Term of the Supreme Court in the third judicial department, entered upon an order made December 8, 1888, 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 brought to enforce the specific performance of an alleged covenant for the reconstruction and restoration of a public road and the' construction of a railroad crossing, contained in a deed executed by-the plaintiff to the Eew York, "West Shore and Buffalo Eailway Company, dated February 8,1882, conveying a strip of land running northerly and southerly through the plaintiff’s farm in the town of Oatskill in the county of Green in this state, 130 feet in width and 1,500 feet in length, which strip of land included the public highway through said plaintiff’s farm, known as the Oatskill and Saugerties road.</p> <p>The plaintiff, prior to and at the time of said conveyance, was the owner of a valuable farm of 260 acres on the westerly-shore of the Hudson river, through which ran northerly and southerly a rocky ridge known as lialkberg mountain, dividing the low lands of the plaintiff’s farm on the river from the upland.</p> <p>Along the easterly foot of the ridge ran the Catskill and Saugerties highway, communicating with Catskill on the north and with Saugerties and other places on the south. The plaintiff’s house and farm buildings were located near to and on the easterly side of the highway.</p> <p>In 1882 the Hew York, West Shore and Buffalo Railway was engaged in the construction of its railway, the line of which at this point ran within and along the highway, across the plaintiff’s premises. The railway company, in view- of this-fact, purchased from the plaintiff the strip mentioned, and the deed of conveyance from the plaintiff contained the following clause: “ The party of the second part (the railway company) is to reconstruct and restore the public road and place the same along the westerly line of and upon the aforesaid premises. The party of the second part is to construct a good and convenient crossing over the said railway premises to the highway reconstructed as aforesaid.” The conveyance to the company was in terms of “ fee simple.” The company thereupon took possession of the highway and raised an embankment on the easterly side of the strip so conveyed, for the track of its road, from fourteen to twenty feet high across the plaintiff’s farm, and completely shut off all approach to the plaintiff’s buildings over the highway from the south, there being a ravine on the southerly side of his land, -which embankment also prevented his reaching the highway to the north, except by climbing the railroad embankment near the northerly line of his premises. Heither the Hew York, West Shore and Buffalo Railway Company, nor its successor in title, the West Shore Railroad Company, nor the Hew York Central and Hudson River Railroad Company, the lessee of the West Shore Railroad Company, has constructed the highway on the westerly side of the 130 feet strip, as provided in the deed. But in the fall of 1882, the grantee in the deed purchased from the plaintiff another strip of land across his farm, fifty feet in width on the top of the mountain for a public road, and opened it as a public road and connected it at the north and south with the old highway, and it has since been used by the public as such in place <5f the original road at the foot of the hill. The company also made an approach up the embankment on the north side of the plaintiff’s farm, to enable the plaintiff to reach the old highway north of his premises.</p> <p>The plaintiff, by reason of the situation, when he desires to go from the 145 acres of his farm on the river to Saugerties or any other market south of his premises, is compelled to first .go north, climbing the embankment to the junction of the old road with the new road, across the'hill, and then turn southerly and go over the hill road until it meets the original highway south of his lands, a route much less convenient than the former one, thereby increasing on each trip the distance to be traveled about one and a quarter miles. In respect to the new road and the purchase of the strip fifty feet in width therefor, upon which one of the points made by the defendants is based, it appears that in constructing the embankment the railroad company blocked and obstructed the old highway so as to prevent its use, and the commissioner of highways threatened legal proceedings; and it also appears that he objected to placing the highway on the 130-foot strip, on the ground that horses would be frightened, etc. The original company thereupon applied to the plaintiff to purchase a strip on the hill for the highway, and did make such purchase, paying the plaintiff $500 for the land. But the plaintiff expressly refused to release the company from tlie obligation under the covenant'in the original deed, and insisted that the company should build the road on the west side of the 130 feet as provided therein.</p> <p>It was shown on the part of the defendants that the construction of a highway under the hill, as provided in the covenant, would, by reason of the blasting which would become necessary, and other difficulties, he very expensive, and Avould cost from $12,000 to $14,000, and that the company had expended from $6,000 to $10,000 in constructing the road over the hill.</p> <p>Subsequent to the commencement of this action the Hew York, West Shore and Buffalo Eaihvay Company became insolvent and its property was sold on foreclosure, and was purchased by individuals who subsequently conveyed it to a new corporation, the West Shore Bailroad Company, which latter company leased it by a perpetual lease to the Hew York Central and Hudson Biver Bailroad Company. The two latter corporations were brought in as parties defendant.</p> <p>There Avas proof tending to show that the value of the plaintiff’s farm had been greatly impaired by the obstruction of the old highway, and that it would be worth $5,000 more than it noAv is if the covenant in the original deed had been performed. The judgment of the court aAvarded the plaintiff $2,500 as damages for the failure to construct a road as provided in that deed and adjudged that the defendant, the West Shore railroad, should construct a crossing under its road at a point indicated, to enable the plaintiff to reach the old highway and the new road over the hill.</p> <p>The judgment directing the payment of $2,500 for damages for failure to construct the higlnvay west of and adjoining railroad tracks is erroneous. (Laws of 1850, chap. 140, § 28; 3 R. S. [8th ed.] 1751; M. & B. P. R. Co. v. Snediker, 18 Barb. 317; Dix v. Shaver, 14 Hun, 392; F. E., etc., P. R. Co. v. Payne, 15 N. Y. 583 ; 2 R. S. [8th ed.] 1347, 1348 ; 2 Herman on Estoppel, §§ 825, 1050, 1149; In re Cooper, 93 N. Y. 507; Embury v. Connor, 3 id. 511; Brown v. Brown, 30 id. 519, 541; N. Y. R. Co. v. Rothery, 107 id. 316 ; 1 Sutherland on Damages, 812.) The court below erred in directing the construction of an undercrossing. (Wademan v. A. & S. R. Co., 51 N. Y. 568; Clarke v. R. L. & N. T. R. Co., 18 Barb. 350 ; Trustees, etc., v. Thatcher, 87 N. Y. 311; Fry on Spec. Perf. §§ 361,1008.)</p> <p>The New York, West Shore and Buffalo Eailway Company, the original grantee from the plaintiff, by accepting the deed and using and occupying the land under it, became bound by the covenants, stipulations or conditions contained in the deed to construct the road and farm crossings. (Aiken v. A., V. & C. R. R. Co., 26 Barb. 289, 291; A. D. Co. v. Leavitt, 54 N. Y. 35-42; 50 Barb. 135; 24 id. 635; 22 id. 646; Countryman v. Dick, 13 Abb. [N. C.] 110; 87 N. Y. 400.) The defendant, the New York, West Shore and Buffalo Eailway Company, and the New York Central and Hudson Eiver Eailroad Company, are presumed to have had, and did actually have, full notice of the covenants and conditions contained in the plaintiff’s deed, and were bound by them. (A. D. Co. v. Leavitt, 54 N. Y. 35 ; Countryman v. Deck, 13 Abb. [N. C.] 110; P. Ins. Co. v. C. Ins. Co., 87 N. Y. 400, 408.) Even if the covenants did not run with the land, in equity the intention of the original parties will be enforced against the subsequent grantee, who took the land with notice of such intention. (Whitmore v. Bruce, 118 N. Y. 320-322; P. Ins. Co. v. C. Ins. Co. 87 id. 400, 408; 15 Alb. L. J. 506; 3 Edm. Stat. 627, § 28, subd. 5.) The court had the right to award a part of the specific relief asked for, the construction of a good and convenient crossing, as specified in plaintiff’s deed, and as a favor to and in the interest of the defendants to award compensation in lieu and instead of specific performance in constructing the road which the defendant, the West Shore and Buffalo Eailroad Company, had made impracticable to perform without much greater expense than the compensation awarded by the court. It is now held the court may, in the same action for specific performance, award full compensation or damages instead. (Henderson v. N. Y. C. R. R. Co., 78 N. Y. 423 ; Wademan v. A. & S. R. R. Co., 51 id. 568; Barrick v. Shifferdicker, 1 N. Y. Supp. 21.) The court (1) properly awarded specific performance as to part of the relief asked for, that is, the construction of the under-grade crossing, to go from that part of plaintiff’s farm east of the railroad embankment to that part west of it, and all markets north and south. And (2) compensation for not building the road west of the railroad embankment in the interest of and as less expensive to defendants, the cost of the construction of which, as defendants proved, would have been over $12,000. (Jones v. Seligman, 81 N. Y. 191-195; 3 Edm. Stat. 635, 636, § 44; 12 Barb. 228.) Defendants, on the trial, made objection that the stipulation or covenant in .the deed “ to reconstruct or restore the public road,” etc., was illegal, as in some way in jurious to the public or to control the town authorities, and citing cases holding that an agreement by a railroad company with the owner of land that a depot or the terminus of the railroad should be on his land or at some particular place was void, as against public policy. This objection is groundless here. (Tinkham v. E. R. Co., 53 Barb. 393; McMaster’s R. R. Law, 62.) The plaintiff can recover against the defendant, the West Shore Eailroad Company (the present owner in fee of the railroad and the land sold by the plaintiff), for compensation to the plaintiff on account of the non-construction of the road and crossing prior to December 5, 1885, when that company-obtained title as decided. (Pars, on Cont. 231, 232 ; 2 Black. Comm. 327; Van Rensselaer v. Bonesteele, 24 Barb. 365; Main v. Feathers, 21 id. 646 ; McMahon v. N. Y. & E. R. R. Co., 20 N. Y. 470, 471; Cott v. L. R. R. Co., 36 id. 213 ; Aiken v. A., etc., R. R. Co., 26 Barb. 289; Graham v. Chrystal, 2 Keyes, 21-25, 26.)</p>

<p>Appeal from judgment of the General Term of the Supreme Court in the fifth judicial department, entered upon an ordei made March 26, 1889, which reversed an order setting aside a verdict in favor of plaintiffs and granting a new trial and directed judgment on verdict.</p> <p>The nature of the action and the facts, so far as material, are stated in the opinion.</p> <p>The construction of the contract between the parties was mate ter of law to be determined by the court. (Westcott v. Thompson,, 18 N. Y. 363; Brady v. Cassidy, 104 id. 147, 155; Dwight v. G. L. Co., 13 id. 341; Chapin v. Potter, 1 Hilt. 366, 375 ; Benj. on Sales, § 613.) It was error to instruct the jury to determine whether the alleged warranty applied only to the barrel of defendants’ oil first sold to plaintiffs, or to both that and the two succeeding five-barrel lots. (Canter v. Hopkins, 4 M. & W. 399 ; Hogins v. Plympton, 11 Pick. 97 99; Van Ostrand v. Reed, 1 Wend. 424, 431; De Witt v. Berry, 134 U. S. 306; Niles v. Culver, 8 Barb. 208, 209 ; Waters v. Tompkins, 14 Hun, 219, 221; Whitimore v. S. B. I. Co., 2 Allen, 52; Lamp v. Crafts, 12 Metc. 353 ; Board-man v. Spooner, 95 Mass. 353; Baker v. Read, 13 Barb. 152, 158; Crist v. Burlingame, 62 id. 351, 363; Benj. on Sales [Bennett’s ed.], § 621; Learned v. Tillotson, 97 N. Y. 1, 12; Wait v. Borne, 7 N. Y., S. R. 113 ; Craighead v. Peterson, 72 N. Y. 279, 285 ; Smith v. Tracy, 36 id. 79, 83; Nixon v. Plamer, 8 id. 398; Seymour v. Wyckoff, 10 id. 213,224; Benninghoff v. A. Ins. Co., 93 id. 495 ; Roach v. Coe, 1 E. D. Smith, 175 ; Baldwin v. Burrows, 47 N. Y. 199, 212, 215 ; Smith v. Kidd, 68 id. 130, 142; Hathaway v. Johnson, 55 id. 93, 96 ; Craig v. Ward, 1 Abb. Ct. App. Dec. 454, 460; Van Vliet v. McLean, 23 Hun, 206, 208; Wakeman v. Dalley, 51 N. Y. 27, 34; Weed v. Case, 55 Barb. 534, 548 ; March v. Falker, 40 N. Y. 562, 565 ; Binnard v. Spring, 42 Barb. 470, 476.) In the absence of an express warranty in the sale of the ten barrels, no warranty can be imported therein by the usage .of trade. (De Witt v. Berry, 134 U. S. 306 ; Hopkins v. Sage, 112 N. Y. 530; F., etc., Bank v. Logan, 74 id. 568, 586 ;: Holmes v. Pettingill, 60 id. 646; Markham v. Iandon, 41 id.. 235, 245.) As matter, of law, appellants have failed to prove the- usage claimed by them, and respondents’ exceptions thereto, were well taken. (Abb. Tr. Ev. 298; Raines v. Totman, 64 How. Pr. 493; Thurman v. Wells, 18 Barb. 500 ; Holloway v. Stephens, 2 T. & C. 562 ; Bassett v. Lederer, 1 Hun, 274; Gallup v. Lederer, Id. 282; Willis v. Tibbals, 1 J. & S. 220; Rawson v. Holland, 59 N. Y. 611, 619 ; Fauntroy v. Wilcox, 80 Ill. 477; Thompson v. Ashton, 14 Johns. 315; C. E. Bank v. N. Bank, 91 N. Y. 74, 80; Beirne v. Bord, 5 id. 95, 102; Bigelow v. Legg, 102 id. 652; Higgins v. Moore, 34 id. 417, 422; S. Bank v. N. Bank, 67 id. 458, 463;. Taylor v. Ketchum, 5 Robt. 507, 513.) It affirmatively appeared that defendants were ignorant of the usage claimed. This usage was that of a particular trade, i. e., the manufacture of woolens, and to find defendants’ knowledge of it, it must have been brought home to them. (Higgins v. Moore, 34 N. Y. 417,426 ; Rawson v. Holland, 59 id. 611, 619 ; Groat v. Gile, 51 id. 431, 438 ; Walls v. Bailey, 49 id. 464 ; Stoney v. F. T. Co., 17 Hun, 579, 581; Boardman v. Gaillard, 1 id. 217, 220 ; 60 N. Y. 614; Bradley v. Wheeler, 44 id. 500 ; Ripley v. Æ. Ins. Co., 30 id. 136,160; Wheeler v. Newbould, 5 Duer, 29; 16 N. Y. 392; Barnard v. Kellogg, 10 Wall. 383.) If tlie usage was of the character claimed by the plaintiffs, it was unreasonable and, therefore, a void usage. (Dodd v. Farlow, 11 Allen, 426; Boardman v. Spooner, 95 Mass. 353; Coxe v. Heisley, 7 Harris, 243 ; Lawson on Usage, 69 ; Barnard v. Kellogg, 10 Wall. [U. S.] 383 ; Wheeler v. Newbould, 16 N. Y. 392,402; Stoney v. F. T. Co., 17 Hun, 579 ; Bryant v. C. Ins. Co., 6 Pick. 131; 2 Pars. on Cont. 546; Brown v. Stoddard, 10 Metc. 375 ; Fuller v. Robinson, 86 N. Y. 306; Law v. Botaford, 26 Fed. Rep. 574; Harguous v. Stone, 7 N. Y. 73, 89; McCormack v. Sarson, 45 id. 265; K. B. Co. v. Hamilton, 110 U. S. 108; C. E. Bank v. N. Bank, 91 N. Y. 74; Higgins v. Moore, 34 id. 417, 422; Scott v. McGrath, 7 Barb. 53 ; Martin v. Farnsworth, 40 N. Y. 555 ; Whart. on Agency, §§ 124, 188, 189; Herring v. Skaggs, 62 Ala. 186 ; Benj. on Sales [4th Am. ed.], §§ 595, 624; Nelson v. H. R. R. R. Co., 48 N. Y. 498; Tice v. Gallup, 5 T. & C. 51; 3 Pars. on Cont. 544; Godman v. Armstrong, 28 Me. 91.) An express warranty only having been pleaded, testified to and submitted to the jury, the verdict cannot be sustained upon the theory of an implied warranty. (De Witt v. Berry, 134 U. S. 306 ; Mumford v. McPherson, 1 Johns. 414; Sands v. Taylor, 5 id. 395; Beck v. Sheldon, 48 N. Y. 365 ; Prentice v. Dike, 5 Duer, 220, 223; Brown v. Tuttle, 66 Barb. 169,172; Burr v. DeLa Vergne, 102 N. Y. 418; Broom’s Leg. Max. 657, 659; Dickson v. Zizinia, 10 C. B. 602; Parkinson v. Lee, 2 East. 314; Biddle on Warranties, 253; Bell v. Dagg, 60 N. Y. 528, 530; Post v. Russell, 1 Johns, 24, 31; Mason v. Jones, 13 Barb. 461, 478; Hall v. Samson, 19 How. 487, 489; Morey v. F. L. & T. Co., 14 N. Y. 302, 306; Mc-Graw v. Fletcher, 35 Mich. 104, 106; Garrison v. Marie, 1 How. Pr. [N. S.] 348, 356 ; Steinbach v. R. F. Ins. Co., 77 N. Y. 498, 502; Riley v. A. S. Bank, 36 Hun, 513, 522; Rochermund v. Clark, 46 N. Y. 354, 357.) The letter from Tucker to defendants, ordering the first barrel of oil to be sent to plaintiffs, was improperly excluded. (Ins. Co. v. Moseley, 8 Wall. 397, 408; Abb. Tr. Ev. 265, 404; 1 Greenl. on Ev. [13th ed.] §§ 101, 108, 116 ; Van Rensselaer v. Morris, 1 Paige, 13 ; H. M. Co. v. Farrington, 16 Hun, 591; 2 Best on Ev. [Wood’s Am. ed.] § 495; Robinson v. Lyle, 10 Barb. 512, 517; Brown v. Richardson, 20 N. Y. 472; McIntyre v. Clapp, 31 id. 569; Wood on Ev. 348-367; Sims v. Sims, 75 N. Y. 466, 468; Beaver v. Taylor, Abb. Tr. Ev. 241, 320-323.) Error was committed in excluding defendants' proof, as to the effect of further purchases, under the usage of “trial and approval.” The exceptions to admission of Tucker’s declarations, as proof of his authorizations from defendants to make the warranty alleged, were .well taken. (Stringham v. S. N. Ins. Co., 4 Abb. Ct. App. Dec. 315, 319, 320 ; Marvin v. Wilber, 52 N. Y. 270, 273 ; Payne v. Potter, 9 Ia. 549, 551; Coon v. Gurley, 48 Ind. 199 ; Fowler v. H. M. Co., 20 W. D. 521; Thurman v. Wells, 18 Barb. 500; Holloway v. Stephens, 2 T. & C. 262 ; Marvin v. U. L. Ins. Co., 85 N. Y. 278; Stainer v. Tyson, 3 Hill, 279, 282.) Error was committed in not confining plaintiffs in their proof of damage to their bill of particulars thereof. (Bowman v. Earle, 3 Duer, 691; Matthews v. Hubbard, 47 N. Y. 428; Dwight v. G. L. Ins. Co., 84 id. 493; People v. Nolan, 10 Abb. [N. C.] 471, 476, 478; Stevens v. Webb, 12 Daly, 88, 91; McPhillips v. N. Y. & N. H. R. R. Co., 13 id. 365; Baird v. Daly, 68 N. Y. 547; Brown v. Richardson, 20 id. 472; Hawley v. Hatter, 9 Hun, 134; Wigand v. Dejonge, 18 id. 405, 406.) The usage of “trial and approval” pleaded and proven by appellants, stands wholly uncontradicted by respondents. Appellants’ exceptions to the denial of a nonsuit on that ground are, therefore, good. (Easton v. Clark, 35 N. Y. 225, 232; White v. Fuller, 47 Barb. 267, 271; Martin v. Farnsworth, 49 N. Y. 555, 558 ; Walsh v. H. Ins. Co., 73 id. 5 ; Dozier v. Freeman, 47 Miss. 647, 660; Wait v. Borne, 7 N. Y. S. R. 113, 118; Brown v. Elliot, 45 How. 182, 189.) There was no competent proof of the amount of carpet damaged. (Cook v. Brockway, 21 Barb. 331; Morehouse v. Mathews, 2 N. Y. 514; Teerpenning v. C. E. Ins. Co., 43 id. 279; Hollis v. Wager, 1 Lans. 4 ; Brown v. Elliott, 45 How. 182.189.) Plaintiffs were guilty of contributory negligence in relying on the alleged warranty without inquiry from defendants as to their salesman’s power to make it. (Wharton on Agency, §§ 137, 139 ; Fox v. Everson, 27 Hun, 355 ; Melvin v. Wood, 3 Keyes, 533; Starkweather v. Kittle, 17 Wend. 21; Parsons v. Sutton, 66 N. Y. 92, 96 Brown v. Elliott, 45 How. Pr. 182, 189 ; Story on Agency [9th ed.], § 133; Dozier v. Freeman, 47 Miss. 647; Smith v. Perry, 29 N. J. L. 74; Thurman v. Wells, 18 Barb. 500, 519; Stainer v. Tyson, 7 Hill, 279, 282.) The plaintiffs were further guilty of negligence in their use of the oil in manufacturing carpets. (Fox v. Everson, 27 Hun, 355; 3 Wait’s Pr. 171; Dascomb v. B., etc., R. Co., 27 Barb. 321; Calkins v. Barger, 44 id. 424; Labar v. Koplin, 4 N. Y. 547, 549 ; People v. Cook, 8 id. 67, 74; 3 Wait’s Pr. 170; Carpenter v. Smith, 10 Barb. 663; Milton v. H. R. S. B. Co., 37 N. Y. 210; Dounce v. Dow, 64 id. 411, 416; 6 T. & C. 653; Draper v. Sweet, 66 Barb. 145; Stevenson v. Stewart, 7 Wkly. Dig. 352; Ely v. O'Leary, 2 E. D. Smith, 355 ; Warren v. Van Pelt, 4 id. 202; Leavenworth v. Parker, 52 Barb. 132; Benj. on Sales, § 900.) The rule of damages laid down by the court was erroneous. (Rector, etc., v. Higgins, 48 N. Y. 532, 538; 2 Sedg. on Dam. [7th ed.] 606, 610-612; Squier v. Gould, 14 Wend. 159; Boyar v. Burkhalter, 2 Barb. 525; Vanderslice v. Newton, 4 N. Y. 130; Moak’s Van Santvoord’s Pleadings, 429 ; Ferguson v. Ferguson, 2 N. Y. 360.) The plaintiffs failed to show damage, as alleged in the complaint, from the breach of the alleged warranty, and it was error to refuse the motion for nonsuit on that ground. (Wright v. Delafield, 25 N. Y. 265, 270; Chamberlain v. Fobes, 3 T. & C. 277 ; Moak’s Van Santvoord’s Pleadings, 787; Draper v. Sweet, 66 Barb. 145, 148; Holden v. Clancy, 68 id. 590; Fox v. Everson, 27 Hun, 355.)</p> <p>There was an implied warranty that the oil was reasonably fit for the purpose to which it was to be applied. (Benj. on Sales, § 657; Jones v. Bright, 5 Bing. 533-544; K. B. Co. v. Hamilton, 110 U. S. 108; Shepherds. Pybus, 3 M. & G. 868; Jones v. Just, L. R. [3 Q. B. Div.] 197; Cunningham v. Hall, 4 Allen, 268; Leopold v. Van Kirk, 27 Wis. 152 ; Brenton v. Davis, 8 Blackf. 317, 318; Van Wyck v. Allen, 69 N. Y. 61; Parkinson v. Lee, 2 East. 314; Seixas v. Wood, 2 Caine, 48; Sweet v. Colgate, 20 Johns. 196; Hawkins v. Pemberton, 51 N. Y. 198, 203.) It has been said in this case, in reference to the doctrine of implied warranty, that it was not applicable because the pleadings were not adapted to such a claim. (N. Y. Lns. Co. v. N. W. Ins. Co., 23 N. Y. 357.) The law implies an authority to Tucker, the selling agent of the defendants, to give a warranty naturally given on the sale of such an article. (Nelson v. Cowing, 6 Hill, 336; Tice v. Gallup, 2 Hun, 446; Ahern v. Goodspeed, 72 N. Y. 108, 114; Benj. on Sales, § 624; White v. Miller, 71 N. Y. 118; Smith v. Tracey, 36 id. 79; Upton v. S. C. Mills, 11 Cush. 586.) By adopting the sale and receiving the purchase-price, which was the result of the sale, the defendants are liable upon the warranty of their agent, which was the producing cause of such purchase-price. (Bennett v. Judson, 21 N. Y. 238; Churchill v. Palmer, 115 Mass. 310, 323; Mundorf v. Wickenham, 63 Penn. St. 87; Baldwin v. Burrows, 47 N. Y. 199.) If the warranty was merely the implied one that it was fit for the purpose for which it is sold, the rule is well settled that the defendants are liable for all the consequences naturally and in the usual course of things growing out of the breach of such warranty. (Passinger v. Thorburn, 34 N. Y. 634; Bonadale v. Brunton, 8 Taunt. 535 ; Jones v. Bright, 5 Bing. 533; Brown v. Egergon, 2 M. & G. 279; Randall v. Roper, El., B. & El. 84; Smeed v. Foord, 1 El. & El. 602; White v. Miller, 71 N. Y. 118; Sedg. on Dam. [4th ed.] 333; Stillman v. Tuttle, 45 Barb. 171.)</p>

<p>An action is not maintainable to compel a voluntary political association of individuals, organized without a charter, but i-egulated as to its action by a constitution and by-laws, to admit plaintiff to membership and office. Membership in such an association is a privilege which may be accorded or withheld, and not a right which can be gained independently and then enforced.</p> <p>The distinction pointed out between such a case and one when a person who has been admitted to membership in a voluntary association, and so, has acquired a right to whatever practical rights and advantages may pertain to membership, but who has been expelled, and so, deprived thereof.</p> <p>A political party organization was formed in the county of Kings, having a general county committee for its representative and controlling body, and having a charter and by-laws for its own government and that of the various town and ward associations. Plaintiff was formerly a member of a town association and a delegate from the town upon the general committee; said town association was, upon charges preferred, disbanded by the general committee and a reorganization of the town association and a primary election in the town ordered. Plaintiff was elected a delegate to the general committee, but that body refused to recognize him as such. Held, that an action was not maintainable to compel such recognition.</p>

The nature of the action and tho fadts, so far as material, are stated in the opinion, The order appealed from shows that the reversal was upon questions of law only, and not upon the facts. The facts are, therefore, not before this court, and unless some error of law was committed upon the trial the order must be reversed. (Code Civ.

<p>Appeal from order of the General Term of the Supreme Court in the first judicial department, made June 6, 1890, which reversed a judgment of the board of police commissioners of the city of New York dismissing the relator from the police force.</p>