Volume 124 — New York Reports

Cross-appeals from judgment of tlie General Term of the Supreme Court in the second judicial department, entered upon an order made May 14,1888, which affirmed a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term. The plaintiff appealed from so much of the judgment as refused to allow interest from August 1, 1875, or October 1, 1878. The defendant Hayward appealed from the whole judgment.

The nature of the action and the facts, so far as material, are stated in the opinion. The defendants are liable under the Manufacturing Act (§ 10, chap. 40, Laws of 1848), if the conditions of section 24 were complied with, or if their performance was excused.

IT pon the trial the court directed a verdict for the defendants. This action was brought upon a bond executed by the ■ defendants to the plaintiff, dated April 7, 1879.

This was .an action upon a bond given by defendant’s testator, Shibboleth B. McCoy, to plaintiff as surety for George W. Sherman, one of its agents.

This action was brought to recover money alleged to have been stolen from plaintiff while a passenger on one of defendant’s sleeping-cars.

This action was brought to recover damages for the death of Heñry F. Brewer, plaintiff’s intestate, alleged to have been -caused by defendant’s negligence. The facts, so far as material, are stated in the opinion. The motion for a nonsuit •should have been granted, as the contract exempted the railroad company from liability.

t in the second judicial department, entered upon an order jnadei February 13, 1888, which modified, and affirmed as modified, a judgment entered upon the decision of the court $t Special Term ; also appeal from so much of said order as modified, and affirmed as modified, an order of Special Term denying a motion to conform the judgment to the findings and for. other relief.

This was an action of ejectment. Defendant Shepard claimed the premises in question as owner, and defendant Cornell claimed a right of possession as tenant under said Shepard. The action relates to a tract of land in the town of Searsdale in the county of Westchester, which was part of a tract of land owned, at the time of his death by Stephen Griffin.

This action was brought to recover for materials and patterns alleged to have been furnished by Cobb, Herrick & Co. to one Howe upon an order made by the defendant in the following form: Messrs.

The nature of the action and the facts, so far as material, are stated in the opinion. The directors elected by preferred stockholders under the reorganization plan have no power to issue mortgage bonds in excess of the amount authorized therein.

<p>In an action brought by property owners in the city of Buffalo to determine the legality of certain assessments upon their premises to pay the expense of macadamizing a street, to enjoin the city from enforcing the collection thereof, and to restrain payment of any money to the defendant McC., who was the contractor for the work, out of the fund created by the assessment, it appeared that the contract with McO. provided that payments should he made to him semi-monthly, as the work progressed, at the discretion of the common council, upon estimates of the engineer of the amount of work actually performed. The only finding as to any wrong doing by any city officer was that the city engineer, knowing that McC. had not performed the work in accordance with the specifications, had recommended the common council to pay McC. out of said fund. There was no finding that said recommendation had been adopted, or that the common council were about to adopt it, or had fraudulently or wrongfully directed payments to McC., or that the other city officials, without- whose acts, under the city charter (§ 30, tit. 2, chap. 519, Laws of 1870), money could not be drawn from the treasury, were threatening to do any wrong or improper act, or that McC. held any orders or warrants that have not been paid. A judgment was rendered, declaring the assessments void, restraining their collection, and enjoined the city and its officers from drawing any order or warrant, or directing any to be drawn, on said fund to McC. or his order until the work was completed as required. The General Term reversed the judgment as to the assessments, but affirmed the residue thereof. Meld, it must be assumed that the assessments and the contract with McC. were valid; that in the absence of a finding that the duty imposed upon the common council by the charter as to McC.’s contract was not properly and rightfully performed, the court could not interfere, and, therefore, that the affirmance was error.</p>

Cboss-appeals from judgment of the General Term of the Superior Court of the city of Hew York, entered upon an order made May Y, 1888, which affirmed a judgment in favor of plaintiff entered upon the report of a referee appointed in pursuance of an interlocutory judgment herein, which interlocutory judgment was modified and affirmed as modified by an order of the General Term, made December 3,1883, which order was also brought up for review.

<p>At law a joint debt cannot be set off against a separate debt, or a separate debt against a joint debt, and equity will only interpose when the circumstances are such as to render it necessary in order to save the claim of a party, and the facts must be alleged entitling him to equitable relief.</p> <p>In an action upon contract brought by one member of a firm, defendant may not avail himself of a claim against the firm as a set-off, on the ground of the insolvency of plaintiff’s copartners, in the absence of an averment that the firm is insolvent.</p> <p>"Where such a claim was set up by defendant as a counter-claim, held, that the failure of plaintiff to reply did not entitle defendant to offset the claim, as the counter-claim does not set up a cause of action against plaintiff; also that it was not necessary for plaintiff to raise the question by demurrer. (Code Civ. Pro. § 499.)</p> <p>It seems that where other persons are jointly liable upon a claim sought to-be availed of as a set-oS, they should be made parties, so that the rights, of all may be determined.</p>

the first judicial department, made the first Monday of October, 1886, which reversed a judgment in favor of defendant entered upon the report of a referee, and granted a new trial. The portion of the order appealed from is set forth in the opinion. The General Term reversed wholly the judgment of the Special Term. This entirely exhausted the power of the court, éxcept the order for a new trial, which necessarily followed. (Code Civ.

The nature of the action and the facts, so far as material, are stated in the opinion. The court erred in charging that the burden of proof was upon plaintiff, and that he must establish by a preponderance of evidence that the removal of the vessel was without authority and without the color of authority.

entered upon a verdict, and affirmed an order denying a motion for a new trial. This was an action to recover damages for the breach of a covenant contained in a deed from the defendant to the grantor of the plaintiff.

<p>Appeal from judgment of the General Term of the Supreme Court in the first judicial department, entered upon a.n order made at the Hay term, 1888, which affirmed a judgment entered upon a verdict for the defendant Huntington directed by the court.</p> <p>The nature of the action and the material facts are stated in the opinion.</p> <p>The point upon which the defendant based his motion to direct a verdict for defendant and upon which the General Term relied in its decision, namely, that the contract had been rescinded by the action of the plaintiff in demanding a return of the stock, compliance with which demand was refused by Huntington on the false plea of inability to make a return, was not well taken. (Bishop on Cont. [2d ed.] §§ 812, 820; 2 Chitty on Cont. [11th ed.] 1089; Johnston v. Trask, 116 N. Y. 136; Holtz v. Schmidt, 59 id. 253; Melvin v. L. Ins. Co., 80 Ill. 446; Litchfield v. Irvin, 51 N. Y. 60, 61.) The proper construction of the contract is, that it related in both its branches to the shares of the old company embraced within the issue of $8,500,000 and $20,000,000, and it was the manifest duty of the court to instruct the jury accordingly. (Groate v. Gile, 51 N. Y. 431; Dwight v. G. L. Ins. Co., 103 id. 352; Short v. Woodward, 13 Gray, 86, 88; Pratt v. Langdon, 12 Allen, 544, 546; Globe Works v. Wright, 106 Mass. 207, 216; Hoffman v. A. Ins. Co., 32 N. Y. 405; Murray v. Bethune, 1 Wend, 191; Stoddard v. Ham, 129 Mass. 383, 385, 386; Riley v. Mayor, etc., 96 N. Y. 339.) If there was anything to leave to the jury, or if Huntington had not admitted the subsequent purchase at $400 per share, as a purchase within the meaning, of the contract, that fact was fully established by the evidence in regard to the Brannan and Lambard purchases; and that evidence fully establishes a purchase at a higher price within the meaning of the contract, and the General Term was in error in holding the contrary, and in refusing to submit the question to the jury. ( Vandermulen v. Vandermulen, 108 N. Y. 195.)</p> <p>Where by contract a party has an election between rights, the election once exercised is gone forever. (23 Abb. [N. C.] 145; Garrison v. Marie, 1 How. Pr. [N. S.] 356; N. Y. F. Ins. Co. v. Lawrence, 14 Johns. 55; Morrell v. I. F. Ins. Co., 33 N. Y. 448, 449, 451; Dinsmore v. Duncan, 57 id. 580; Wynkoop v. N. F. Ins. Co., 91 id. 478; Andrews v. Ǣ. Ins. Co., 92 id. 596; Layton v. Pearce, Doug. 15; Brown v. Slee, 103 U. S. 836; Jones v. Carter, 15 M. & W. 718; Dendy v. Nicholl, 4 C. B. N. S. 376; Grimwood v. Moss, L. R. [7 C. P.] 366; Doer v. Birch, 1 M. & W. 406; Brown v. R. Ins. Co., 1 E. & E. 853; Kennedy v. Mills, 13 Wend. 553.) Plaintiffs contention that the exercise of the election did not rescind the sale unless Huntington should comply with the demand and return the stock is erroneous. (Morrell v. I. F. Ins. Co., 33 N. Y. 429.)</p>

The nature of the action and the facts, so far as material, are stated in the opinion. With respect to the motion to discontinue the action plaintiff has waived nothing by proceeding before the referee as she was compelled to do. (Brown v. Mayor, etc., 9 Hun, 591; In re N. Y. C. & H. R. R. R. Co., 60 N. Y. 116.) Plaintiff’s motion should have been granted. (Cook v. Beach, 25 How.

<p>Appeal from judgment of the General Term of the Supreme Court in the second judicial department, entered upon an order made May 14, 1888, which affirmed a judgment in favor of plaintiffs entered upon a verdict directed by the court, and affirmed an order denying a motion for a new trial.</p> <p>This was an action of replevin.</p> <p>On September 11, 1886, the plaintiffs, under their firm name of Ellsworth Tuthill & Co., and Walter E. Lawton, doing business under the name of Lawton Brothers, entered into the following written contract:</p> <p>“September 11, 1886.</p> <p>“ Sold for account of Messrs. Ellsworth Tuthill & Go. to Messrs. Lawton Brothers, Mew York, five hundred tons sellers’ usual good make platform-dried fish scrap, not treated with acids, of tiffs season’s make, to be ready for delivery before close of sellers’ works, at $28 per ton of 2,000 lbs., actual weight in bulk, F. O. B. sellers’ factory, Promised Land, Long Island. Terms, payment by buyer’s notes at four months, with interest, added at a rate of six per cent per annum from date of delivery on presentation, hills of lading, invoice, weigher’s return, and Stillwell & Gladding’s certificate of moisture. If scrap removed before closing sellers’ factory this fall, or, if scrap is not removed before such time, buyers are to give their notes, bearing same interest for an approximate amount, bearing date of such closing. Buyers to have privilege of leaving scrap at their own risk, free of charge for storage, till opening of fishing season of spring, 1887, provided if they require any scrap between such closing and opening, buyers are to pay thirty-five cents per ton for loading. Scrap guaranteed not to exceed twelve per cent, moisture, Stillwell & Gladding’s analysis from samples drawn in the usual way. Scraps to be in good order and condition.”</p> <p>From the date of this contract to the date of the trial of this action (October 25, 1887), the plaintiffs at all times had on hand at their factory at Promised Land, L. I., more than 500 tons of fish scrap of the kind and quality mentioned in the contract, but the quantity sold nor any part of it was ever set apart for the vendee. November 12, 1886, the vendee gave the vendors, towards the purchase-price, three promissory notes signed by the purchaser and payable to the order of the sellers, of the dates, for the amounts and due as follows:</p> <p>Date. Amount. Time. Due.</p> <p>Nov. 12, 1886... $5,000... Four months... March 15, 1887-</p> <p>Nov. 19, 1886... $5,000... Four months... March 22, 1887.</p> <p>Nov. 26, 1886... $3,000... Four months... March 29, 1887.</p> <p>The purchase-price was $14,000 and after deducting these</p> <p>notes $1,000 remained, which was never paid nor was a note given for it. These notes were all dishonored and Jiave never been paid, nor has any part of the purchase-price of the property. About the 1st of December, 1886, the plaintiffs sent the purchaser the following receipt:</p> <p>“ Ellswobth Tuthill & Go., Manufacturers of</p> <p>“ Menhaden Oil and Guano, Factory at Promised Land, L. I.</p> <p>“ Peomised Land, N. Y., Nov. 12, 1886.</p> <p>“ We hereby certify that we hold five hundred (500) tons of platform dried fish scrap, of good quality and in good condi-</p> <p>tion, in bulk, subject to the order of Mess. Lawton Bros., in our factory at Promised Land, Long Island, Suffolk county, H. Y., as per terms of contract.</p> <p>“ELLSWOBTH TUTHILL & 00.</p> <p>“ Dated September 11th.”</p> <p>March 24, 1887, Joseph L. Morton began an action in the Supreme Court against Walter E. Lawton for the recovery of money, in which an attachment was issued, by virtue whereof, March 28, 1887, the defendant Skidmore, as sheriff,:and the defendant Hand, as his deputy, levied upon and seized 500 tons of fish scrap then stored at the plaintiff’s factory. The quantity attached was not separated from a larger quantity of which it, was apart, and was never removed from the plaintiffs’ premises. June 15, 1887, Morton recovered a judgment against Lawton in that action for $22,629.66, which was entered in the office of the clerk of the city and county of Hew York, a transcript, of which was duly filed and the judgment duly docketed June 27, 1887, in the office of the clerk of the county of Suffolk. May 13, 1887, the plaintiffs demanded of the defendants that they release the attachment and surrender the property to them, which was refused, and on the next day this action in replevin for the recovery of the property was begun. Upon the trial, each party asked that a verdict be directed in his favor, neither claiming that there was any question of fact for the jury. A verdict was directed for the plaintiffs.</p> <p>The plaintiffs cannot recover in this action on the allegation in their complaint that Lawton wrongfully took the chattels from said plaintiffs, as the evidence established that said property came lawfully in the possession of said Lawton by reason of the sale to him by said plaintiffs. (Olyphant v. Baker, 5 Den. 379; Williamson v. Berry, 8 How. [U. S.] 544; Bradley v. Wheeler, 44 N. Y. 495; Sanders v. Waterbury, 116 id. 371; Benjamin on Sales, § 315 ; Barrett v. Goddert, 3 Mason, 107; Terry v. Wheeler,, 25 N. Y. 520; Kimberly v. Patchen, 19 id. 330; Russell v. Carrington, 42 id. 125; Crofoot v. Bennett, 2 id. 258; Burrows v. Whitaker, 71 id. 291.) As the plaintiffs cannot maintain their action on the ground that the chattel was wrongfully taken, but only upon the theory of the wrongful detention of the said property, the facts and circumstances showing how such detention was wrongful must be set forth in the complaint, which was not done, so the exception to the admission of evidence and the refusal to dismiss the complaint on this ground was error. (Code Civ. Pro. § 1721; 5 Wait’s Act. & Def. 456; Curtis v. Jones, 3 Den. 590; Patterson v. Adams, 7 Hill, 126.) The plaintiffs cannot recover upon the complaint in this action in which they claim title as owners, and not by virtue of a lien for unpaid purchase-money, as the claim of ownership was inconsistent with that of a lien, and no cause of action on 'the latter ground is set forth in the complaint. (Hudson v. Swann, 83 N. Y. 552; Mixal v. Dearborn, 12 Gray, 336; Saltus v. Everett, 20 Wend. 268; Hackswell v. Farnam, 7 How. Pr. 236.) The plaintiffs must allege, as well as prove, the facts constituting his cause of action, and a recovery upon a cause of action not alleged in the complaint, although proved under exception and objection upon the trial, is not sustainable. (Clark v. Post, 113 N. Y. 18.) The plaintiffs could in no event have maintained this action on the ground of lien, or special property in the chattels, by virtue of unpaid purchase-money, as they have failed to establish the insolvency of Lawton when his credit expired. (Riddle v. Varnum, 20 Pick. 280; McEwen v. Smith, 2 H. L. Cas. 309; Durgy v. O'Brien, 123 Mass. 12; 5 Wait’s Act. & Def. 614; Nichols v. Micheals, 23 N. Y. 264.)</p> <p>If the legal title to the scrap in question passed from the plaintiffs to Walter E. Law-ton the respondents have a lien thereon for the purchase-money. (Story on Sales, §§ 285, 286; 1 Pars, on Cont. [5th ed.] 526; Bloxam v. Sanders, 4 B. C. 941; Bump on Bankruptcy, 683; Benjamin on Sales, 819; Brown v. Montgomery, 20 N. Y. 287, 291; Brower v. Harbeck, 9 id. 594.) The giving of the paper above mentioned of November 12, 1886, can hardly be regarded as a symbolical delivery of the goods. (Story on Sales, §§ 281, 288, 339; Benjamin on Sales, § 823.) There is room for question, whether title passed to Lawton as the effect of what transpired between him and plaintiffs. If title did not pass, then plaintiffs, as owners of the goods, have a right to hold them against Lawton and his creditors. (Kein v. Tupper, 52 N. Y. 550; Foote v. Marsh, 51 id. 288; Stephens v. Santee, 49 id. 35; Stone v. Browning, 68 id. 598; Anderson v. Reed, 106 id. 333.) The court ruled correctly in not requiring plaintiffs to elect, and go upon either hen alone or title alone, as asked on the trial by the defendants. (Code Civ. Pro. §§ 488, 499; Hudson v. Swan, 83 N. Y. 552; Leggett v. Hyde, 58 id. 212, 275; Tuthill v. Skidmore, 15 N. Y. S. R. 892; Lloyd v. Brewster, 4 Paige, 540.) The complaint as regards the claim of hen is sufficient. (Code Civ. Pro. §§ 121, 122,123,1126; Sedgwick on Dam. [5th ed.] 582; Brewster v. Silliman, 38 N. Y. 423; Rowley v. Gibbs, 14 Johns. 385.)</p>

the General Term of the Court of Common Pleas for the city of Mew York, made May 4, 1888,, which reversed an order of the General Term of the City Court, which reversed an order of the Special Term of said court denying a motion for a new trial. This action was brought to recover back moneys paid by plaintiff’s assignor to defendant upon contracts set forth in the opinion, in which the material facts are also stated.

This is an appeal from a judgment of the general term, first department, affirming a judgment rendered for the plaintiff upon a trial before a judge at a circuit without a j™V-

The action was brought in 1887 to foreclose a mortgage, of date January 1, 1884, made by the defendant Anderson and her husband, John J. Anderson, upon certain premises in the city of New York, to secure the payment of $12,500, and interest, to the plaintiff on the 1st day of January, 1885, according to the condition of a bond of the mortgagors. The husband died in January, 1885.

The nature of the action and the facts, so far as material, are stated in the opinion. The referee erred in excluding evidence tending to show the sense in which the contracting parties used certain of the terms found in the written agreement.

<p>An undertaking given on appeal to the General Term, from a decree in a foreclosure suit, instead of being in the form prescribed by the Code of Civil Procedure (§ 1331), for an undertaking to stay proceedings in such an action was in the form prescribed (§ 1337) to stay execution on a money judgment. Plaintiff’s attorneys accepted the undertaking and did not take proceedings to enforce the decree pending the appeal; this resulted in an affirmance, but during its pendency the property was sold pursuant to a decree of foreclosure and sale founded on a prior mortgage. In an action upon the undertaking, held, that while it was valid as a common-law agreement, and enforceable according to its terms, as no sum was recovered or directed to be paid by the judgment appealed from, the defendants were not liable beyond the amount of costs; that their agreement could not he enlarged so as to embrace the payment of the amount decreed to be paid out of the proceeds of the sale of the real estate; and so, that a recovery of this amount was error.</p>

This action was brought upon a bond executed by the defendants, as sureties, for Edward E. Tower, as executor of the will of Burgess Cluff, deceased. The will contained these provisions : “ First.

<p>It seems that when the alleged illegality upon which relief against an assessment is founded is patent upon the record on which the person claiming under it must rely to support his claim, the owner of the land is not entitled to affirmative relief to remove it, as in the legal sense it is not a cloud upon the title, or prejudicial to him.</p> <p>So also, although the infirmity may not appear on the record, if the claimant cannot establish his claim without developing the defect which will defeat it, the owner of the land cannot have affirmative relief.</p> <p>The same principles apply to an action having in view the recovery of money paid by the owner upon an assessment unless it was made by those having no jurisdiction to make it, or unless the payment was made under coercion in fact.</p> <p>It seems, also, where fire charter of a municipality provides that it shall be presumed that every assessment made is “valid and regular, and that all the steps and proceedings required by law were taken and had until the contrary shall be made to appear,” this presumption entitles a person whose land is assessed to relief, when the illegality of the assessment is shown, and it rests in something de hors the record.</p> <p>In an action to recover money paid upon an assessment on property in Buffalo the court found that certain persons whose lands were assessed filed with the city clerk objections to the roll, and that he reported the filing of such objections to the common council, but did not lay the roll or objections before that body, nor did it at any time have or consider such objections as required by the city charter (§ 14, tit. 6, chap. 519, Laws of 1870). By the charter (§ 36, tit. 7) it is declared that it shall be presumed that every assessment made under it is valid and regular, and that all proceedings required by law were taken unless the " contrary appears. Held, it could not be assumed that any of such objections were made by the plaintiff or any of his assignors, or that they or any of them went to the validity of the assessment; that as the burden was upon plaintiff to prove the facts entitling him to relief, it was necessary to show that he was or may have been in some manner prejudiced by the failure of the common council to consider the. objections made; and that in the absence of any evidence justifying a finding of some fact showing the illegality, the action was not maintainable.</p>

This was an action to recover damages for an alleged breach of covenants. On the 15th day of February, 1856, Ebenezer L. ¡Roberts acquired through Charles • Leech, a referee, an unincumbered estate, in fee simple, in the premises described in the complaint, and, to secure the payment of $5,500 of the purchase-price, executed and delivered on that day a mortgage on the premises to Leech, as referee, which was duly recorded on the next day and became the first lien.

This action was brought to set aside, as fraudulent, a deed from Abner 0. Wetmore through a third person to his wife, the defendant herein, and for a sale of the lands described therein in order to pay a debt due plaintiff from said Abner C. Wetmore. Between August 20, 1882, and December 28, 1882, Abner 0.

This action was brought to recover damages alleged to have been caused by defendant’s failure to transmit correctly a telegraphic message. In July, 1884, the plaintiff was a member of the firm of T. W. Pearsall & Co., bankers and brokers, engaged in business at the Mills Building, Mo. 17 Broad street in the city of Mew York.

This action was brought to recover damages arising from the alleged negligence in allowing a highway, known as Warren avenue, to remain out of repair, in consequence of which plaintiff fell and broke his leg. The facts, so far as material, are stated in the opinion. The place where the plaintiff fell was riot a highway, and so defendant was under no obligation to keep it in repair.

The action is brought to recover upon liabilities of the firm of Blood & Co., originally composed of the defendants. The defendant Harris alone defends, and upon the ground that several years prior to the transactions upon which this action is founded he had withdrawn from the firm. It appears that the plaintiff had had dealings with Blood & Co. prior to Harris’ withdrawal, and that notice of such withdrawal was not given to the plaintiff.

<p>Appeal from judgment of the General Term of the Supreme ■Court in the first judicial department, entered upon an order made November 9, 1887, which affirmed a judgment in favor of plaintiff entered upon a verdict and affirmed an order ■denying a motion for a new trial.</p> <p>Action by a judgment creditor of the Brooklyn Marine Power Company, a corporation organized under chapter 40 of the Laws of 1848, against the defendant as a stockholder of said company, to recover a debt pursuant to section 10 of said act, upon the ground that the capital stock had not been paid either in cash or in property fairly worth the par value of the stock issued.</p> <p>While the answer put at issue all the allegations of the complaint, which was in the usual form in such actions, upon the trial there was no question as to the right of the plaintiff to maintain the action, provided there had been a Adulation of said section.</p> <p>Further facts are stated in the opinion.</p> <p>The court erred in charging that it is not necessary for plaintiff to prove that the trustees of the Brooklyn Marine Power Company have been guilty of a fraudulent intent to entitle the plaintiff to recover. (Douglass v. Ireland, 73 N. Y. 102; Dodge v. Havemeyer, 4 N. Y. S. R. 561; Schenck v. Andrews, 57 N. Y. 133.) Evidence of the amount realized at the sheriff’s sale Avas improper. (Schenck au Andrews, 57 N. Y. 150, 151.) Defendant sought to explain the transaction of the distribution of stock after its issue, and the intention of the parties in reserAÚng 200 shares for the benefit of the company. (Gamble v. Q. C. W. Co., 23 N. Y. S. R. 409; Douglass v. Ireland, 73 N. Y. 105; L. S. I. Co. v. Drexel, 90 id. 93.) The court erred in denying the motion to dismiss. (Douglass v. Irelcund, 73 FT. Y. 104; L. S. I. Go. v. Drexel, 90 id. 93; Sehenek v. Andrews, 57 id. 133; Dodge v. Ilavemeyer, 4 FT. Y. S. E. 561.) The denial of the motion to direct a verdict for the defendant and the motion for á new trial was error. (Ohase v. Lord, 77 FL Y. 6 ; Bruce v. Driggs, 26 How. Pr. 71; L. S. L. Go. v. Drexel, 90 FT. Y. 93; Boynton v. Andrews, 63 id. 95; Sehenek v. Andrews, 57 id. 133.)</p> <p>All that it was necessary to prove in order to establish the defendant’s liability as a stockholder was : (1) That the stock issued exceeded in amount the value of the property in exchange fur which it was issued, and (2) that the trustees deliberately and with knowledge of the real value of the property overvalued it and paid in stock for it an amount which they knew was in excess of its actual value. (Douglass v. Ireland, 73 N. Y. 103; Boynton v. Andrews, 43 id. 95; Thurston v. Duffy, 38 Hun, 329; L. S. I. Co. v. Drexel, 90 N. Y. 94; Huntington v. Attrill, 118 id. 365, 382.) The capital stock of the company was' $300,000. It was issued for the five inventions of Mr. Bliven’s, which are described in the trust deed. The question whether these five inventions were worth $300,000 was eminently a question for the jury. (L. S. I. Co. v. Drexel, 90 N. Y. 94.) The trustees of the company, and among them the defendant, deliberately, and with knowledge of the real value of the property, overvalued it, and paid in stock for it an amount which they knew was in excess, of its actual value. This was a fraud and a palpable attempt to evade the statute. (Douglass v. Ireland, 73 N. Y. 103; Huntington v. Attrill, 115 id. 374; Thurston v. Duffy, 38 Hun, 329; Blake v. Griswold, 103 N. Y. 435.) The entire capital stock of the Brooklyn Marine Power Company had been issued for inventions which had never been patented. (Gillette v. Bate, 10 Abb. [N. C.] 88; Tasker v. Wallace, 6 Daly, 364.) Mr. Tower and Mr. Bogert were both eminently qualified to testify as to the merits and the commercial value of Mr. Bliven’s inventions. (Blake v. Griswold, 103 N. Y. 436, 437.) The court had power to submit a special question to the jury for a special verdict. (Code Civ. Pro. § 1187.) One of plaintiff’s witnesses was permitted to testify, under defendant’s objection, the amount realized at the sheriff’s sale of the property of the Brooklyn Marine Power Company. The sale was made under execution issued upon a judgment obtained by the defendant against the company. The testimony was objected to as immaterial. Mo error was committed in the admission of the testimony. (Bach v. Levy, 101 N. Y. 511; Muller v. Eno, 14 id. 597.)</p>

This action was brought to recover damages for alleged negligence causing the death of plaintiff’s intestate. Held: as a matter of law, that the verdict rendered in this action is for excessive damages.

This action was brought to recover damages for the death of Myron W. Simmons, plaintiffs’ intestate, which was alleged to have been caused by the defendants’ negligence. The trial court found that for many years prior to October 18, 1887, the appellants owned in severalty three lots, each being twenty-two feet wide, and bounded on the east by the center line of South Salina street, in the city of Syracuse.

<p>Cross-appeals from judgment of the General Term of the Supreme Court in the first judicial department, entered upon an order made November 7,1889, which modified and affirmed as modified a judgment in favor of plaintiff entered upon a decision at Circuit upon a trial without a jury.</p> <p>This was an action at law by a receiver, appointed in proceedings supplementary to execution, to recover a sum of money deposited by a third party with the defendant, and alleged to belong to the judgment debtor.</p> <p>The judgment, upon which plaintiff’s appointment as receiver is based, was recovered April 2, 1886, against Herbert F. Beecher. On the 8th of March, 1887, Henry Ward Beecher, father of the judgment debtor, died, leaving a will, that was duly proved in April following, by which he gave his residuary estate to his executors in trust for the benefit of his children, four in number, with power to sell all or any part thereof, and directed that the same should be distributed “ in such manner and form and at such time or times as shall in their judgment be for the best interests of my said children.” The estate consisted of both real and personal property of considerable value, and the executors, Henry B. and William C. Beecher and Samuel Scoville, having sold a part of the personalty, deposited the proceeds in different banks, one of which was the defendant, the account being entitled : “ Estate of Henry Ward Beecher.” Checks were drawn upon this account in the due administration of the estate, each being signed either by Henry B. or William C. Beecher, as “ Executor.” The trial court found, in addition to the foregoing facts, “ that in the first part of January, 1888, said executors made a distribution among all the legatees under the said will of said fund so deposited by them and apportioned about $5,000 thereof as the share of the said judgment debtor.” It does not appear how such apportionment and distribution was made, except that Henry B. Beecher, on January 30, 1888, drew a check on said account to the order of the judgment debtor for $2,286.92, being the balance due him after paying certain debts pursuant to his instructions, and mailed it to him at Fort Townsend, Washington Territory, where he resided. He indorsed it in blank, and, after passing through several hands, it was paid by the defendant March 10, 1888, in the usual course of business. It was never certified and had not been presented before. January 27, 1888, a third-party order, based upon said judgment, was obtained for the examination of William C. Beecher, and the next day was served upon him, and on February first he appeared and was examined. A like order for the examination of defendant’s cashier was granted and served on the day last named, and the next day an examination was had thereunder and further proceedings were adjourned until March 21, 1888. Each order contained the usual injunction clause. From December 19, 1887, to February 2, 1888, said account in the defendant bank was not less than $4,644.71, and thenceforward to. February eleventh, it stood at $1,038.49, and after that date until March tenth, at $2,428.54.</p> <p>February 3, 1888, the plaintiff was appointed receiver under the first of said orders and next day the receivership was extended to the proceedings under the second order. On the ninth of February, and after the plaintiff had qualified, he demanded from the defendant that it should pay him “ the sum of $2,286.92, amount on deposit in said bank in the said account of the estate of Henry Ward Beecher,” and deliver all money or property in its custody or control belonging to the judgment debtor, “ or due him from it,” but the demand was refused, and February 27,1888, this action was commenced. Herbert F. Beecher had no notice of the proceedings which resulted in the appointment of the plaintiff as receiver.</p> <p>As conclusions of law, the court found that all funds deposited by the executors were trust funds and that the bank had notice of the fact; that upon the apportionment and distribution by the executors, the share of the judgment debtor became vested in him and subsequently passed to the plaintiff as receiver, in whose favor judgment was ordered for the sum of $1,300, which was fixed upon as the amount necessary to cover the judgment for $484 with interest thereon, together with the costs and receiver’s expenses.</p> <p>Hpon appeal by botli parties to the General Term, the judgment was modified by reducing the recovery to $692.65, and as thus modified affirmed.</p> <p>Both parties now appeal to this court, the plaintiff claiming the right to recover the entire fund in controversy, while the defendant claims • that there should be no recovery whatever against it.</p> <p>The property of the judgment debtor vested in the plaintiff as soon as the order appointing him receiver was filed, namely, February 4, 1888. (Code Giv, Pro. §§ 1819, 2468, 2469 ; McCorkle v. Herrman, 117 N. Y. 297; Loder v. Hatfield, 71 id. 92, 98; Bushnell v. Carpenter, 92 id. 270; Goebel v. Wolf, 113 id. 405; Warner v. Durant, 76 id. 133; Bartholomew v. Adams, 8 N. Y. Supp. 179; Delafield v. Shipman, 103 N. Y. 466; Vincent v. Newhouse, 83 id. 505; Harris v. Fly, 7 Paige, 471; Chase v. Beecher, 6 N. Y. Supp. 227; Manice v. Manice, 43 N. Y. 363; Viets v. U. N. Bank, 101 id. 568; Baker v. N. Y. N. E. Bank, 100 id. 35.) A check is not an assignment of, nor a lien upon, the funds against which it is drawn. (Lowrey v. Stewart, 25 N. Y. 241; Story on Bills of Exchange, § 86; Atty. Gen. v. C. L. Ins. Co., 71 N. Y. 325; Luieth v. Bank of America, 49 Barb. 221; Æ. N. Bank v. F. N. Bank, 46 N. Y. 82; Duncan v. Berlin, 60 N. Y. 151, 153; Oode Giv, Pro. § 1819; Rundle v. Allison, 34 id. 180-183.) The bank, by the very title of the account, and the fact of checks being signed “ Executor,” had full notice of the character of the account; for, where deposits are made in a bank by any one as agent, executor, trustee, etc., the use of such terms charges the bank with notice. (Daniels on 27eg. Inst. [3d ed.] § 1612; N. Bank v. Ins. Co., 104 U. S. 64, 65; Oode Civ. Pro. §§ 2468, 2469.) The whole fund of §2,286.92 not only vested in plaintiff, but he was entitled to receive the whole of it. (Code Giv. Pro. §§ 2468, 2469; Renald v. Wyckoff, 8 J. & S. 529; Salter v. Bowe, 32 Hun, 237; High on Receivers, §§ 447, 449; Campbell v. Grant, 2 Hilt. 290, 296; Browning v. Betts, 8 Paige, 508; Bostwick v. Menck, 40 N. Y. 383; Verplanck v. Van Buren, 76 id. 255; Merrill v. Bank of Norfolk, 18 Pick. 32.) The plaintiff is a proper person to receive the whole. (Goodhart v. Stilton, 90 N. Y. 206; Gelston v. S. S. Bank, 29 Hun, 597.) The court had power to modify the judgment by increasing it. (Code Giv. Pro. § 1317; Canady v. Stiger, 55 N. Y. 456; Moffat v. Sackett, 18 id. 528; Richardson v. H. Ins. Co., 15 J. & S. 138; Simonson v. Brown, 68 N. Y. 355; Hannah v. Hannah, Id. 610, 611; Bennett v. Bates, 94 id. 354.)</p> <p>A check upon a hank in the usual form, not accepted, or certified by its cashier to be good, does not constitute a transfer of any money to the credit of the holder. It is simply an order which may be countermanded and payment forbidden by the drawer at any time before it is actually cashed. It creates no lien on the money which the holder can enforce against the b'ank. It does not of itself operate as an equitable assignment. (F. M. Co. v. Brown, 124 U. S. 385; Atty.-Gen. v. C. Ins. Co., 71 N. Y. 325; Lynch v. F. N. Bank, 107 id. 179 ; Vietz v. U. Bank, 101 id. 563; Æ. Bank v. F. N. Bank, 46 id. 82, 87; Bank of Republic v. Millard, 10 Wall. 152; Carr v. N. S. Bank, 107 Mass. 45; Chapman v. White, 2 Seld. 412; Crawford v. W. S. Bank, 100 N. Y. 50.) The court below erred in holding that the deposit was a trust fund created for the benefit of the legatees, and such legatees, as soon as their shares were fixed and set aside, would be entitled to them, and could have sued the bank and collected the same from it. (Fletcher v. Sharpe, 108 Ind. 276; McLain v. Wallace, 103 id. 562; Butler v. Sprague, 66 N. Y. 392, 395.) The receiver took title only to such property as belonged to the judgment debtor when the proceedings were commenced and the receiver appointed. (DuBois v. Cassidy, 75 N. Y. 298; Thorn v. Fellows, 5 Wkly. Dig. 473.) The statement of the account with the bank shows very plainly that it was not a fund set apart for the benefit of the legatees, but simply the current account of the estate used in the general transaction of its affairs. This is ‘ a very different thing from a trust Bind in which a legatee had any specific interest. (N. Bank v. Ins. Co., 104 U. S. 54, 63.) The check having been indorsed generally to laidlaw & Co., and not for collection, became their property, the title passed to them, and was not again subject to the payee’s control. (M. Bank v. Loyd, 90 N. Y. 530; Vietz v. U. Bank, 101 id. 563; Van Allen v. A. Bank, 52 id. 4; Code Civ. Pro. § 2469; Bank of Republic v. Milliard, 10 Wall. 152, 156.) The judgment debtor was never served in supplementary proceedings, and no notice was given him as required by law. (Code Civ. Pro. § 2464; Whitney v. Welch, 2 Abb. [N. C.] 442; Ashley v. Turner, 22 Hun, 226; Stokes v. Epstein, 6 Civ. Pro. Rep. 36.) Plaintiff’s contention that the judgment should have been for the whole amount of the check is untenable. (Bostwick v. Menek, 40 N. Y. 383; High on Receivers, §§ 454, 455 ; Code Civ. Pro. § 3320.)'</p>

This action was brought originally against, the Buffalo, Yew York and Philadelphia Railroad Company, to recover for a trespass alleged to have been committed by said company in May, 1884.

This action was brought to recover a balance claimed to be due on an account arising on the purchase and sales of stocks by plaintiff’s assignors for defendant.

Appeal, by defendants Elizabeth Patterson, Catharine Bonner and Preston Stevenson, as trustees, etc., from judgment of the General Term of the Supreme Court in the first judicial department, entered upon an order made November 18,1889, which affirmed a judgment in favor of plaintiffs’ testator entered upon a decision of the court on trial at Special Term.

Appeal by Mary L. O’Flyn, a beneficiary under the will of Sarah Macomber, deceased, from judgment of the General Term of the Supreme Court in the first judicial department, entered upon an order made October 24, 1890, which affirmed a decree of the Surrogate’s Court, settling the accounts of the executor of said will. • The material facts are stated in the opinion.

The facts, so far as material, are stated in the opinion. The evident design and intention of the testator, as shown by the whole scheme of his will, and particularly by the directions as to immediate investment of the whole of the capital of the estate; and as to the ultimate division of the capital, in connection with the terms employed, point to the immediate conversion of the estate into money.

<p>Appeal from judgment of the General Term of the Supreme Court in the fifth judicial department, entered upon an order made October 1, 1889, which affirmed a decree of the surrogate of the county of Monroe.</p> <p>The record presents the proceedings had upon the final judicial settlement of the accounts of Mortimer F. Reynolds, as executor of the last will and testament of Abelard Reynolds, deceased. The decree in which such proceedings finally resulted proved unsatisfactory to the executor and appellant in two respects:</p> <p>1st. It decreed that certain stocks, bonds, leases and bankbooks of the value of about $12,000, which were in a safe in the arcade at the time of testator’s death, did not pass to Mortimer F. Reynolds individually under the third clause of the will, but became a part of the residuary estate provided for by the fifth clause.</p> <p>2d. It adjudged that a payment of $250 by the executor to the Monroe Commandery was not chargeable against the estate as part of the funeral expenses.</p> <p>The will of said Abelard Reynolds provided as follows:</p> <p>“ First. I give and devise to my wife Lydia S. Reynolds the homestead where I now reside, on Fitzhugh street in said city of Rochester, with all the lands, privileges and appurtenances thereto belonging or appertaining, to have and to hold the same to her own use during the continuance of her natural life.</p> <p>“Second. I give and bequeath to my said wife all the provisions and supplies of every kind which may be on hand at my said homestead at the time of my decease, and the use during her life of all the household furniture, goods, horses, carriages, harness and all other personal property (other than money, dioses in action and securities) which shall be in or upon the premises at my said homestead or habitually kept there at the time of my decease.</p> <p>“ Third. I give, devise and bequeath to my son Mortimer F. Reynolds my jiroperty situated upon West Main street (formerly Buffalo street) in said city of Rochester, extending through to Exchange place in the rear, known as Reynolds’ arcade, including also East arcade (so-called), with all the lands, buildings and appurtenances thereunto belonging, or in anywise appertaining, and including all the furniture and personal property in and upon the same, or in any manner connected therewith, to have and to hold the same to his own use and benefit forever, subject, however, to the payment of the following sums, which are hereby made a distinct charge thereon, viz.:</p> <p>“An annuity of three thousand dollars to my said wife, to be paid to her in four equal quarterly payments from and after my decease in each year during the continuance of her natural fife. Also the sum of fifty thousand dollars, with annual interest thereon from the time of my decease, to my granddaughter Clara L. Amsden, and the like sum of fifty thousand dollars, with like interest, to my granddaughter Sophia C. Strong, to be paid to them respectively, as follows: In annual instalments of at - least ten thousand dollars per annum to each of them, to be applied first to the payment of the interest which may be then due, and the residue upon the principal unth the whole is paid. The first instalment to he paid at the expiration oi one year from the time of my decease, with the privilege, however, of paying a greater amount at any time, to the extent of all that may remain due and unpaid.</p> <p>“ Fourth. In case my said wife should refuse to accept the foregoing provisions-made in her behalf, which, if accepted, are intended to be in full satisfaction and discharge of her right of dower, and of all other intez’est or claim which she znay have izz or zzpozz any portion of zny estate, real or personal, thezi and in that case only two-thirds of the afoz-esaid sum of fifty thousand dollars beqeathed to each of my granddaughters, with the interest there.ozz, that is, upon the said two-thirds, shall be paid durizzg the life-time of my wife; bzit upon her decease all that znay remain unpaid of the whole bequest of fifty thousand dollars to each of zny said grand-daughters, with interest thereon, shall become due and payable, and the instalments herein above provided for shall be continued until the whole is paid. Ho interest, however, is to be computed or paid ztpon the one-thiz-d, payznent of which is szzspended duz-izzg the life of my said wife, except from and after the time of her decease.</p> <p>“ Fifth. I give, devise azzd bequeath ah the rest, residzie and remainder of zny estate, both real and personal, to zny said sozz and executoz’, Mortimer F. Reyzzolds, in trust, to.sell and dispose of the same, azzd convert the whole izito znoney, or into good azzd safe securities, and out of the proceeds to pay first, to zny granddaughter Sophia 0. Strong, a suzn which, when added to the advances zzzade to her either by znyself or by my deceased son Williazn A. Reynolds, in his life-time, azzd now charged upon zny books, shall be equal to the advazzces sizzzilazdy znade to" zny gz’azzddaughter Olaz’a L. Arnsden, also charged upon zny books; and, after such payment, to pay to himself or retain out of the residue of such proceeds a sum which, whezz added to the suzzz chaz*ged as advances against hizn, the said Mortimer F. Reynolds, upozz my books, shall be equal to the sum so advanced to each of my gz-anddaughters. The remainder of the trust funds to be realized from the sale herein directed to be divided equally between my two granddaughters, one-half to each.</p> <p>“ The furniture and personal property, the use of which is given, in connection with the homestead, to my wife, is not, however, to be sold, in case she accepts the provisions herein made for her benefit, until after her decease, and whenever sold the avails are to be divided equally between my said granddaughters.</p> <p>“ Sixth. At any sale which may be made in pursuance of the foregoing directions the said Mortimer F. Reynolds is to be permitted to bid, and to have the same right and privilege of becoming a purchaser as if he were not named or acting as trustee.</p> <p>“Seventh. As I have already provided for my sister Mary by gifts heretofore made, I make no further provision for her in this will.</p> <p>“ Lastly, I hereby constitute and appoint the said Mortimer F. Reynolds sole executor of this my last will and testament.”</p> <p>The language of the testator in the third clause of the will is ample to transfer the property in dispute to Reynolds individually. (Swinfen v. Swinfen, 29 Beav. 207; In re Scarborough, 30 L. J. Prob. 85; 6 Jur. N. S. 1166; Hotham v. Sutton, 15 U. S. 319; Cambell v. Prescott, Id. 503; Michell v. Michell, 5 Mad. 69; Hearne v. Wiggimton, 6 id. 82; Flemming v. Burrows, 1 Russ. 276; Taubenhan v. Dunz, 125 Ill. 524; Mahoney v. Donovan, 14 Ir. Ch. 262, 388; Tyrone v. Waterford, 1 DeG, F. & J. 613; Stuart v. Earl of Bute, 8 Ves. 212; Sock v. Myers, 9 N. H. 430; Bouvier’s Law Dic. tit. Property.) The comparison of analogous clauses in the same instrument" shows the intent of the testator. (Sanderson v. Dobson, 1 Exch. 141; Doe v. Earles, 15 M. & W. 450; Broom’s Leg. Max. 452-454; Strong v. White, 19 Conn. 238; Arnold v. Arnold, 2 M. & K. 365; McLaughlin v. McLaughlin, 24 Penn. St. 20.) The item of funeral expenses of the testator paid to the “ Monroe Commandery,” was properly paid. (Offley v. Offley, Proc. Chan. 261; Price v. Archbishop of Canterbury, 14 Ves. 364; Mullich v. Mullich, 1 Knapp, 245; Jennison v. Hapgood, 10 Pick. 77; Garvey v. MacCue, 3 Redf. 313.)</p> <p>The property did not pass to Reynolds individually. (Johnson v. Goss, 128 Mass. 434; Dold v. Johnson, 3 Allen, 364; Kennifer's Appeal, 52 Mich. 352; Spark’s Appeal, 89 Penn. 148; 1 Jarman on Wills, 760; Woolcomb v. Woolcomb, 3 P. Wins. 112; Hutchinson v. Rough, 40 Law Times, 289; Hodgson v. Jax, 2 Ch. Div. 122.) The word “ property,” as used in the third clause of the will, does not include choses in action. (Pippin v. Allison, 12 Ir. Law, 61; Young v. Yowng, 3 Jones’ Eq. 216; Lowe v. Carter, 2 id. 378; Scales v. Scales, 6 id. 168; Fraser v. Alexander, 2 Eq. Div. 348; Bradley v. Jones, 2 Ired. Eq. 248; Alexander v. Alexander, 6 id. 229; McGlaughlin v. McGlaughlin, 24 Penn. 20; German v. German, 26 id. 116; State v. Spaulding, 19 Conn. 238.) Choses in action do not pass under a bequest like the present under the description of property to a certain place, for the reason that they have no locality. (Flemming v. Brook, 1 S. & LeF. 318; Arnold v. Arnold, 2 M. & K. 274; Moore v. Moore, 1 Brown’s Ch. Cas. 127, 129; Hertford v. Lowther, 7 Beav. 1; In re Aylesbury, 11 Ves. 662; Brooks v. Turner, 7 Sim. 671; Reed v. Stewart, 4 Russ. 69; 2 Williams on Exrs. 1178; Jones v. Sexton, 4 Ves. 166; Webster v. Wiers, 51 Conn. 569; Benton v. Benton, 1 East, 247; Wolf v. Scheffner, 51 Wis. 53; Manton v. Dubois, 30 Ch. Div. 92; Collier v. Squire, 3 Russ. 467.) If the bank-book and certificate are to be taken as the money they represent, then under the general words employed, it would not pass. (Campbell v. McGrair, 9 Ir. Eq. 397; Dutton v. Hockenhull, 22 Wkly. Dig. 701; Watson v. Arundul, 10 Ir. Eq. 299; Robert v. Kuffin, 2 Atk. 113; Gibbs v. Lawrence, 30 Law J. Ch. 170; Saunders v. Earle, 2 Ch. Rep. 188.) The surrogate properly struck out the item paid to the Monroe Commandery. (Powers v. Powers, 48 How. Pr. 389.)</p>

The nature of the action and the facts, so far as material, are stated in the opinion. Neither Mrs. Austin nor Mrs. Lunt needs equitable protection against plaintiff, because Richardt is responsible to Austin on his covenants, and Austin ,to Lunt on her bond.

Appeals from an order of the General Term of the Supreme Court in the second judicial department, made December 8, 1890, which affirmed an order of Special Term, the substance of which is hereinafter stated.

Action to recover damages from the defendant for causing the death of plaintiffs’ intestate, by negligently running over him as he was walking upon a public street at a point where it crossed a railroad track at grade. Mo question was raised as to the negligence of the defendant, and the sole controversy upon this appeal is in relation to the alleged contributory negligence of the deceased. The facts, so far as material, appear in the opinion.

This action was brought to recover damages for alleged negligence in causing the death of Charles Oldenburg, plaintiffs’ intestate. The facts are -stated in the opinion. It was error to submit the ■questions of negligence in this case to the jury. The court should have nonsuited the plaintiff or directed a verdict in favor of the defendant.

This action was brought to recover damages for alleged negligence causing the death of Dazydeury Wiwirowski, plaintiff’s intestate. The material facts are stated in the opinion. The plaintiff failed to establish a cause of action, and freedom from negligence on the part of the defendant was shown by a preponderance of evidence.

In June, 1868, John Cocks died leaving his will, which was shortly after admitted to prohate, and by it he directed the executors to invest such sum upon bond secured by mortgage on real estate in Westchester county as would net an income of $1,000 per year, to he paid to his wife Adelia semi-annually so long as she should remain his widow, unmarried and no longer, in lieu of dower. He gave to his daughter Anna $3,000.

Arpead from judgment of the General Term of the Supreme Court in the first judicial department entered upon an order made October 24, 1889, setting aside a verdict in favor of plaintiff and granting a new trial unless plaintiff stipulates to reduce the verdict as specified, and in case such stipulation is made overruling defendants’ exceptions and denying a motion for a new trial, which stipulation'was made.

The nature of the action and the facts, so far as material, are stated in the opinion. The complaint in this case does not state a cause of action. (Cuyler v. McCartney, 40 N. Y. 221; Bullis v. Montgomery, 50 id. 352; Burrill on Assignments, § 404; Rathbone v. Hooney,. 58 N. Y. 464; Bigelow on Est. 143; Crook v. Rindskopf 105 N. Y. 446; Wood v. Amory, Id. 248.) A surviving partner may make a general assignment of the firm' property with preferences.

The will was written upon a printed form consisting of a half sheet about the size of a half sheet of legal cap. The form from the beginning of the will to the end of the attestation clause was wholly upon one side of the half sheet. On the back of the sheet was an indorsement “ Will ” with a blank between ruled lines for the name of. the testator, so placed, that when the paper was folded as an ordinary legal paper the indorsement would appear on the outside.

the Superior Court of the city of ¡New York, endered upon an order made ¡November 3, 1890, which affirmed a judgment in favor of defendants entered upon the report of a referee, and from an order of said General Term which reversed a judgment in favor of defendants previously entered upon the report of another referee. The nature of the action and the facts, so far as material, are stated in the opinion.

This was an action for the construction of a will. February 26, 1880, John McUaughton duly executed his last will and testament, the material parts of which are as follows: “ Item first. I give and bequeath to my wife, Margaret McFTaughton, my house and lot in the village of Caledonia, and all my household furniture, to have and to hold the same to her for and during her natural lifetime. “ Item second.

The nature of the action and the facts, so far as material, are stated in the opinion. There is no evidence in this case showing an express contract on the part of Price to pay for Davis’ services, nor a request on the part of Price that Davis should render him any services, and no promise to pay can be implied.

<p>While an employe, by entering into the employment, assumes and assents to the ordinary risks incident thereto, this does not release the employer from the duty to take reasonable precautions to insure the servant’s safety while in the discharge of his duties, and when the latter is injured because of failure to perform this duty, the master is liable.</p> <p>A corporation is bound to carry on its business under a proper system and under reasonable rules and regulations, and if, through a failure to establish such system or to make such rules, a servant is injured, the corporation is liable.</p> <p>It is the duty of a railroad company, transporting lumber upon open cars, to adopt some system for loading, having regard for the safety of its servants, and, it seems, of those traveling over its road and of all persons who may be in the vicinity of such cars.</p> <p>In an action to recover damages for the alleged negligent killing of F., plaintiff's intestate, who was a switchman in defendant’s employ, it appeared that he was killed while at his post of duty by being struck by heavy timbers that fell from a passing open car which was improperly loaded. Defendant furnished good cars and stakes, but it had no rule, method or system in reference to the loading of lumber or timber; the manner of loading being left to the discretion of its employes. It had adopted a general rule requiring its employes “to attend to the loading of all freight, whether loaded by station men or by shippers, to see that it is safely stored, and so that it cannot fall off the cars.” Plaintiff proved that on other roads a verbal rule existed requiring that in all cases, no matter how short the distance, lumber, .whenever loaded above the sides of a car, should be secured by stakes on the sides and stays over the top. Held, that the evidence justified the submission to the jury of the question as to whether defendant had made a proper and ■sufficient rule with respect to the loading of cars with lumber; and that a finding in the negative was sufficient to sustain a verdict against it.</p>

The facts, so far as material, are stated in the opinion. . The fund in question is the proceeds of a sale of real estate in partition. At the time of sale it was vested in the descendants of Deborah Ann McCormick, whose names and places of residence were unknown, and, aside from the effect of the statutes of 1889, it remained vested in them, and the persons claiming through them, and so remains to the present time.

Arlt, deceased. The amount of the claim as presented by the plaintiff, was $611, and is made up of two charges. One of them, is for the board of Anna John and Emil John; the other is for professional services rendered as nurse by plaintiff for the deceased for various periods of time between June 2, 1887, to March 18, 1888.

The nature of the action, and the facts, so far as material, are stated in the opinion. The total amoimt of the assessment charged against the lots was fixed, ascertained and determined, and inserted in the rolls for the year 1870, and so became a charge upon the lands under the covenants in the deed delivered in 1872. (Depeyster v. Murphy, 66 N. Y. 622; Dowdney v. Mayor, etc., 54 id. 186; Lathers v. Keogh, 109 id. 583, 590; Harpers.

This was an action to recover damages for injuries to plaintiff, alleged to have been caused by the negligence of defendant. The facts, so far as material, are stated in the opinion. The statement of the mother is so wholly incredible in its nature as not to be sufficient in law to be submitted to a jury.

Wallace, deceased, so far as it related to the allowance of interest upon a legacy given to William Carroll. John F. AVallace died July 23, 1885, leaving a last will and testament. Objections to the probate of the will were filed, and thereafter, on March 3,1886, letters of temporary administration were granted upon the estate of said deceased. The will was admitted to probate on the 29th day of June, 1887, and on that day letters testamentary were issued.

This was an action to recover damages for an alleged breach of a contract of employment. By a written agreement between the parties dated June 8, 1887, the plaintiff agreed to faithfully, diligently and to the best of his ability, serve the defendant as superintendent of of its pyrotechnic factories from July 14,1887, until December 31, 1889, for the sum of $4,000 per year, payable in equal weekly payments.

This action was brought upon an alleged contract. The plaintiff presented a claim to the executor of William E. Story, Sr., for $5,000 and interest from the 6th day of February, 1875. She acquired it through several mesne assignments. from William E. Story, 2d. The claim being rejected by the executor, this action was brought.

Appeals from final judgments of tlie General Term of the Supreme Court in the first judicial department, entered upon orders made July 9, 1889, which affirmed interlocutory judgments entered upon orders of Special Term sustaining -demurrers to the complaints in the actions above entitled.

This action was brought to restrain the collection of a judgment recovered against Henry W. Hubbell by the Judd Linseed and Sperm Oil Company, and to have it adjudged that such judgment, so far as it was a claim or demand against Hubbell, was satisfied and discharged. Hubbell died pending the litigation, and the action was continued by his administrator.

This Action was brought upon a contract between the parties, whereby the plaintiff agreed to furnish the labor and materials and build and complete a cellar upon the plaintiff’s premises at the price of thirty-five cents per cubic yard for excavation, and sixteen cents per cubic yard for walls, to be paid upon the order of the architect on completion.

Cross-appeals from a judgment of the General Term of the Supreme Court in the fifth judicial department, entered upon an order made October 1, 1889, which ordered a judgment in favor of plaintiff upon a case ‘ submitted pursuant to section 1279 of the Code of Civil Procedure. The facts, so far as material, are stated in the opinion.

Cross-appeals from judgment of the General Term of the Supreme Court in the first judicial department entered upon an order made ¡November 7,1889, which modified, and affirmed as modified, a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term.

The plaintiff’s complaint alleged that in March, 1888, the-defendants wrongfully, negligently and carelessly erected a. coffer-dam in the outlet of Canandaigua lake, at the foot of Main street, in the village of Canandaigua, and maintained it there, by which the water of the lake was backed upon and! over his pasture land, causing damage for which a recovery was sought.

The nature of the action and the material facts are stated in the opinion. The answer that the judgment debtor had no property upon which the sheriff could have levied and made the amount of the plaintiff’s execution constitutes a good defense to an action to charge the sheriff with damages for a failure to return the execution issued to him within the required sixty days. (Ledyard v. Jones, 7 N. Y. 551; Brookfield v. Remsen, 1 Abb.

<p>Appeal from judgment of the General Term of the Supreme Court in the fifth judicial department, entered upon an order made April 19, 1887, which affirmed a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term.</p>

“ The land contracted to be conveyed is located in the city of New York on the southerly side of One Hundred and Twenty fourth street, and has a frontage upon that street of thirty-nine feet, commencing at the intersection of Fourth avenue, and westerly therefrom. One Grace T. Turnbull, formerly Smith, is the owner of the lot adjoining on the west, whose title was derived from the same source as that of the plaintiff, but of prior date.