Volume 125 — New York Reports

This was an action for the foreclosure of a mechanics’ lien. The facts, so far as material, are stated in the opinion. The lien law, being dependent for its validity upon the statute creating it, conferring extraordinary rights, and being in derogation of the common law, an attempt to obtain payment from some person other than him with whom the lienor contracted, must be strictly construed, and cannot be extended beyond the import of the statutory language.

' Appeal from judgment of the General Term of the Superior Court of the city of Hew York, entered upon an order made Hay 6, 1889, which affirmed a judgment in favor oí plaintiff entered upon a decision of the court on trial at Special Term.

This action was brought by plaintiff, a brakeman in the employ of defendant in its yard at Schenectady, to recover -damages for the loss of an arm, alleged to have been caused by the negligence of defendant. The facts, so far as material, are stated in the opinion. The question of contributory negligence is generally one for the jury.

Appeals from judgments of the General Term of the Supreme' Court in the fifth judicial department, entered upon orders made March 26, 1889, one of which affirmed a judgment in favor of defendants in the first above-entitled action, and the other of which affirmed a judgment in favor of plaintiff in the second above-entitled action, both of which were entered upon decisions of the court on trial at Special Term.

<p>The by-laws of a corporation organized under the General Manufacturing Act (Chap. 40, Laws of 1848), authorized its trustees to alter and amend them at their discretion; by such an amendment the number of trustees was reduced from twelve to nine; thereafter, but nine trustees were elected at the annual meetings of stockholders, and the business of the corporation was conducted by a board composed of that number; the annual reports were signed by six trustees. Held, that this was a sufficient compliance with the provisions of said act (§ 12), requiring such reports to be signed by a majority of the trustees, to prevent a recovery of the penalty imposed for a non-compliance with said provision; and this, although a certificate of the fact of such reduction was not filed in the office of the county clerk and secretary of state as required by the statute (Chap. 269, Laws of 1860, as amended by chap. 316, Laws of 1878); that the proceedings of the board, concurred in by all having an interest in the corporation, effected a practical reduction, and constituted the nine thereafter elected a de jure as well as a de facto board.</p> <p>It seems that the question of the legality of the change could only be raised in a direct proceeding by one whose interests were affected.</p> <p>Where the acting board of trustees of such a corporation, in fact authorized by it and having possession of its property and franchises and undisputed control in the management of its affairs, has filed and published within the time limited the annual repffitt required by said provision, certified by a majority of such board and verifier1 by its president, it has complied with the letter and spirit of the law, and it is not competent, in an action by a creditor of the corporation against said trustees under said provision, for plaintiff to show that some of the acting trustees were not duly elected or for some reason were disqualified from acting, or to claim that, by reason of a non-performance or an irregularity in the performance of some prior duty enjoined upon the stockholders, that said board had no authority to perform the general duties required of them as agents of the corporation.</p> <p>Sex v. Yan'lo (1 Cowp. 248); Sex v. Bellringer (4 D. & E. ) 810; Bex v. Miller (6 id. 268); Bailiff, etc., v. Bhillips (4 Ad. & EL 550); Seople ex rel. Hawes v. Walker (23 Barb. 304); Ex pande Willcocks (7 Cow. 402);. Moora v. Sector, etc., 4 (Abb. [N. 0.] 51), distinguished.</p> <p>Reported below, 52 Hun, 328.</p>

This action was brought upon a promissory note dated February 6,1885, made by the defendant Clark Bell, for $1,58421, payable sixty days after date to the order of the defendant Hiram B. Crosby. Defendant Bell alleged that said note was given without- any consideration, and for the accommodation of Crosby, the purpose being to enable Crosby to purchase' certain shares of stock in a company, hut was not used by him for such purpose.

The nature of the action and the facts, so far as material,, are stated in the opinion. There is no evidence of fraud in this case. The evidence establishes the fact that the statement of creditors preferred was drawn up, signed and delivered at the same time the assignment was. It was all done at the same time, Saturday afternoon, September 13, 1884, at, about two o’clock.

Appear from judgment of the General Term of the City Court of Brooklyn, entered upon an order made April 22, 1889, which affirmed a judgment in favor of plaintiff entered upon a verdict and affirmed an order denying a motion for a new trial. This action was brought to recover damages for injuries received by plaintiff while in defendant’s employ,. by the falling of an elevator used in its refinery. 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 policy is not avoided by reason of its being mentioned and inserted by mistake in the proofs of loss that the property was incumbered. (Dresser v. U. F. Ins. Co., 12 N. Y. S. R. 434.) As the policy in this case does not provide in what manner notice of additional insurance shall be given, notice may be given by parol. (McEwan v. M. C. M. Ins.

Dunham was not entitled to share in a fund created by the will of Thomas B. liegeman, deceased, entered upon an order of Special Term confirming the report of a referee. The nature of the action and the facts, so far as'material, are stated in the opinion. The language of the fourth clause in itself is such as to ■call for construction.

<p>Appeal from judgment of the General Term of the Supreme Court in the first judicial department, entered upon an order made March 13, 1889,, which affirmed a judgment in favor of defendant entered upon a decision of the court on trial without a jury.</p> <p>This action was brought against the treasurer of plaintiff, a Connecticut corporation, to recover damages arising from an accommodation indorsement by him in plaintiff’s name, of a promissory note.</p> <p>The facts, 'so far as material, are stated in the opinion.</p> <p>The indorsement of plaintiff’s name upon the note was ultra, vires, and was binding upon it only in 'the hands of innocent holders for value. (Ellis v. H. M. Co., 9 Daly, 83; R. &. S. R. R. Co. v. Davis, 43 N. Y. 137; Moss v. Averill, 10 id. 449; P. Co. v. S. L. A., etc., R. R. Co., 118 U. S. 315, 317; M. P. R. Co. v. W. Co., 7 Wis. 59; Smead v. I. R. R. Co., 11 Ind. 104; N. P. Bank v. G. A. M., W. & S. Co., 116 N. Y. 281; Bissell v. M. S. R. R. Co.,. 22 id. 258; Woodruff v. E. R. Co., 93, id. 609; W. A. Co. v. Barlow, 63 id. 62; C. Bank v. E. S. D. Co., 26 Barb. 23; Bank of Genesee v. P. Bank, 13 N. Y. 309-315; B. C. Bank v. E. S. D. Co., 30 Barb. 421; Morford v. F. Bank, 26 id. 568; Webster v. H. M. Co., 54 Conn. 411, 412.) Defendant is liable to plaintiff for the damages arising from his indorsement of the note in suit. (Angeli & Ames on Corp. [11th ed.] § 315; Austin v. Daniels, 4 Den. 299; Hun v. Cary, 82 N. Y. 65; Laverty v. Swethen, 68 id. 522; Landers v. F. S. M. E. Church, 97 id. 119, 124; Beveridge v. N. Y. E. R. Co., 112 id. 23; Stringham v. S. N. F. Ins. Co., 4 Abb. Ct. App. Dec. 315; N. Bank v. N. P. Co., 56 Hun, 139; Wyman v. H. & A. Bank, 14 Mass. 58; Wardell v. U. P. R. R. Co., 103 N. Y. 651; M. E. R. Co. v. M. R. Co., 14 Abb. [N. C.] 272; Leslie v. Lorillard, 110 N. Y. 530; Rudd v. Robinson, 54 Hun, 339.) The liability of the plaintiff on the note was fixed by its discount in plaintiff’s bank. (M. Bank Association v. N. Y. & S. W. L. Co., 35 N. Y. 505; Olcott v. T. R. R. Co., 27 id. 546; Bank of N. Y. v. M. B. Bank, 29 id. 619; M. E. R. Co. v. Kneeland, 120 id. 134.) Plaintiff has not ratified the act of defendant, and is not estopped to deny defendant’s lack of authority to indorse for accommodation. (Wyman v. H. & A. Bank, 14 Mass. 58; C. C. Co. v. Sherman, 30 Barb. 578; Adair v. Brienmer, 74 N. Y. 554; Ormsby v. V. C. M. Co., 56 id. 623; N. Bank v. N. P. Co., 56 Hun, 136; Kent v. Q. M. Co., 78 N. Y. 187; S. H. B. Co. v. E. H. B. M. Co., 90 id. 607; Martin v. N. F. P. M. Co., 44 Hun, 190; B. C. T. R. R. Co. v. Strong, 75 N. Y. 591; Story on Agency, § 217; Greaves v. 69 N. Y. 154.)</p> <p>The indorsement, was not for accommodation, but for appellant’s benefit in business. (Arnot v. E. R. Co., 5 Hun, 610; Smead v. I & G. R. Co., 11 Ind. 104; Low v. C. & P. R. Co., 52 Cal. 53; Opdyke v. P. R. Co., 3 Dill. 55; Morawetz on Corp. [2d ed.] § 424.)</p>

This was an action upon a policy of fire insurance issued by the defendant. The facts, so far as material, are stated in the opinion. Plaintiff was entitled to recover in his own right, as there was evidence sufficient to sustain á finding of fact by the jury that the defendant consented to the change in the ownership. (Landers v. W. Ins. Co., 86 N. Y. 414, 417; Benninghoff v. Ins. Co., 93 id. 502; Shearman v. N. Ins. Co., 46 id. 530; Walsh v. C. Ins.

The nature of the action and the facts, so far as material, are stated in the opinion. The General Term in considering the power of commissioners of highways did not properly take into account the distinction between moneys raised by the town on the application or statement of the com-. missioner for repairs of highways and bridges, and moneys raised by an act of the legislature or of the board of supervisors of the county for a new bridge or other specific purpose.

<p>Appeal from order of the General Term of the Supreme Court in the first judicial department, made June 7, 1890, which affirmed an order of Special Term. denying an application to condemn lands for railroad purposes.</p> <p>This was a proceeding under the General Eailroad Act (Chap. 140, Laws of 1850), and the acts amendatory thereof, by the People’s Eapid Transit Company, a corporation organized under said act, to acquire the land of Bowie Dash, in the «city of New York, for the purposes of its railroad.</p> <p>The facts material to the questions discussed are stated in the opinion.'</p> <p>The language of an act is, as a rule, to be interpreted according to its ordinary natural meaning; especially if that meaning be also the one which the legislature itself has continually given to the same words. (In re O’Neil, 91 N. Y. 516, 520; Ogden v. Saunders, 12 Wheat. 332; Story on Const. Lim. § 449.) All our railroad acts are .to be taken together, and construed as one body of legislation, on one subject. (Kent’s Comm. 463; W. W. T. Co. v. People, 9 Barb. 161, 169; U. Society v. E. Bank, 7 Conn. 469.) The act of 1850, by its express terms, allowing the construction of a railroad, of any kind, across, along, or apon any street, or highway, in any city, in the entire state, with that city’s consent, is as broad and comprehensive as it could be made. It comprehends every kind of railroad, every city and every public highway. (Laws of 1850, chap. 140, §§ 24, 28; Laws of 1838, chap. 160; Laws of 1871, chap. 609.) Chapter 10 of the Laws of 1860, did not affect the right to build the proposed road. (Laws of 1831, chap 263; Laws of 1832, chap. 93; Laws of 1835, chap. 300; Laws of 1846, chap. 216; Laws of 1848, chap. 140; Laws of 1853, chap. 62; Laws of 1854, chap. 140; Wakefield v. Fargo, 90 N. Y. 213; People v. U. Ins. Co., 15 Johns. 358, 379; Laws of 1840, chap. 140; Laws of 1850, chap. 140; Laws of 1860, chap. 145; Laws of 1864, chap. 582; Laws of 1871, chap. 609; Laws of 1872, chap. 825; Laws of 1875, chap. 606; Laws of 1880, chaps. 133, 417; Laws of 1882, chap. 140; Laws of 1884, chap. 252; Laws of 1886, chaps. 65,642; Laws of 1887, chap. 724; People v. O’Brien, 111 N. Y. 30, 31.) Assuming that the act of 1860 was intended to prohibit the construction of a railroad, such as is here proposed, except under subsequent legislative authority, such authority must be deemed to have been given in Laws of 1880, chapter 133, or in Laws of 1881, chapter 124. (Harrington v. Trustees, etc., 10 Wend. 547; Dexter v. Allen, 16 Barb. 15; Lyddy v. Long Island City, 104 N. Y. 218; In re Miller, 110 id. 216; Mark v. State, 97 id. 572; Laws of 1875, chap. 606, § 40; Ely v. Holton, 15 N. Y. 595.) The rights of the petitioner under the General Baiboad Act are not restricted by subsequent legislation. (People v. B., etc., Co., 89 N. Y. 15; Laws of 1884, chaps. 252, 447; Laws of 1886, chap. 65; Laws of 1888, chap. 514.) The absence of the city’s consent cannot be raised by the individual owners of the real estate sought to be condemned in this proceeding. (In re N. Y. C. & H. R. R. R. Co., 77 N. Y. 248.) The alleged intention to use any portion of lands hereafter acquired for purposes not in themselves exclusively raiboad purposes cannot be raised on this record by this respondent. (N. Y. C. & H. R. R. R. Co. v. M. G. L. Co., 63 N. Y. 326; In re N. Y. C. & H. R. R. R. Co., 77 id. 248.)</p> <p>The General Eailroad Act of 1850 is entirely insufficient to justify granting the-prayer of the petition. (In re W. S. A. & P. R. R. Co., 115 N. Y. 445; People v. Newton, 112 id. 401; In re N. Y. D. R. Co., 107 id. 54; N. Y. C. Co. v. Mayor, etc., 104 id 14; Laws of 1884, chap. 252; In re N. Y. E. R. R. Co., 70 N. Y. 327; In re M. T. Co., 111 id. 597.) The act of 1860-is fatal to this application. (115 N. Y. 445.) The only existing authority for the construction of elevated roads in the city of New York is found in the provisions of chapter 606-of the Laws of 1875. (In re U. E. R. R. Co., 112 N. Y. 69; Heckman v. Pinkney, 81 id. 215; Poffinger v. Youtte, 12 id. 42.) The present application is barred by the statute. (Laws of 1886, chaps. 65, 642.) The argument of the petitioner with reference to the crossing of streets is untenable. (Laws of 1854, chap. 282, § 7; Laws of 1888, chap. 514, § 3; Astor v. A. R. R. Co., 113 N. Y. 109.)</p>

the second judicial department, made July 18, 1890, which affirmed an order of Special Term denying a motion to compel the clerk of Westchester county to tax an item in plaintiffs bill of costs for money paid the Lawyers’ Title Insurance Company of Hew York for a search of title of the premises, to foreclose a mortgage upon which this action was brought.

The nature of the action and the facts, so far as material, are stated in the opinion. The verdict was contrary to the evidence, and should be set aside for that reason. (Barrett v. T. & A. R. R. Co., 45 N. Y. 628, 632.) The evidence on the part of the plaintiff showed that the mortgage was fraudulent and void.

This action was brought to recover damages alleged to have been caused by the flow, in times of rains and thaws, of earth and debris from a railroad embankment of defendant upon the adjacent premises of the plaintiffs. The facts, so far as material, are stated in the opinion. The defendant is not liable for the damages done to the plaintiffs’ property through the flow thereupon of sand and debris from the embankment in question.

<p>Appeal from judgment of the General Term of the Superior Court of the city of Hew York, entered upon an order made April 15,1889, which affirmed a judgment in favor of plaintiff entered upon the report of a referee</p> <p>This action was brought to recover damages resulting from an alleged breach of a contract of employment.</p> <p>The facts, so far as material, are stated in the opinion..</p> <p>It was error to hold that a new contract for one year was to be implied. (2 R. S. chap. 7, § 2, subd. 1.)</p> <p>The original contract of hiring having been fully executed on both sides, presents no discussion under the Statute of Frauds. (Hodge v. Newton, 13 N. Y. S. R. 140; Dodge v. Brandall, 30 N. Y. 294.) The first contract being fully performed and, therefore, valid, the retention of the plaintiff by the defendants in their employ was equivalent to a new hiring at the same salary for one year. (Wallace v. Devlin, 36 Hun, 275; Greer v. P. T. Co., 18 J. & S. 517; Hodge v. Newton, 13 N. Y. S. R. 140; N. H. I. Factory v. Richardson, 5 N. H. 296; G. & B. S. M. Co. v. Bulkley, 48 Ill. 102; Conway v. Starkweather, 1 Den. 113; Schuyler v. Smith, 51 N. Y. 309; Coudert v. Smith, 118 id. 304, 311; Talamo v. Spitzmiller, 30 N. Y. S. R. 186; 22 Hun, 91, 93; 12 id. 259, 261; Laughran v. Smith, 75 N. Y. 205; Bleeker v. Johnson, 51 How. Pr. 380.) The plaintiff used diligent effort to find other employment. (Howard v. Daly, 61 N. Y. 62.)</p>

<p>1. Eminent domain. Aqueduct.—The provision of the act of 1883 (section 18 of chap. 490), to provide an increased water supply for the city of Hew York, does not impose upon the city a liability for damages for the temporary inconvenience occasioned to adjacent lot owners from the prosecution of the work. It applies only to permanent injuries arising from the completed works and their use thereafter.</p> <p>2 Same.—Where a lot is taken by the city under this act, an engine-house and fixtures erected upon it and coal deposited thereon to be used in the construction of the aqueduct, the use of which is to be continued only while the work is in progress, an owner and occupant of a house on an adjoining lot, though seriously incommoded by the noise, soot, smoke and dust, is not entitled to damages therefor under said act.</p>

Appeal by defendant Frank Fish, from a judgment of the court of oyer and terminer of the county of Canandaigua, entered upon the verdict of a jury convicting him of murder in the first degree. The facts sufficiently appear m the opinion of the court.

This action was brought to recover damages arising from the alleged negligent failure of defendant to deliver to plaintiff a box containing, pictures shipped by her on one of defendant’s vessels. The facts, so far as material, are stated in the opinion. Plaintiff proved that the goods were taken into the defendant’s control; that defendant ■assumed to and did bring them in its vessel to blew York; that the goods were thereafter demanded in blew York.

<p>1. Railroads—Ancient streets in New York city—Abutting owner.</p> <p>An abutting owner upon a street in New York city opened during the Dutch occupation of Manhattan Island, has the right to have it kept open as a public street and to the advantages of light, air and access in and from the same for the benefit of his abutting property, and is entitled to compensation for injuries caused by the construction and operation of an elevated railroad therein.</p> <p>.3. Same.</p> <p>All the streets owned by a city are held in trust that they shall forever he kept open as public streets ; and the legislature cannot abrogate this trust or authorize its violation without making compensation for any injury sustained by abutting owners.</p> <p>3. Same.</p> <p>The dedication by the state of the streets in the city of New York to be public streets is irrevocable.</p> <p>■4. Same—Damages—Noise.</p> <p>As to abutting owners having easements in the streets through which an elevated railroad is constructed it is a trespasser, and any consequential injury (suchas noise) to the plaintiff’s property while engaged in the unauthorized occupation and use of the street is proper to be considered by the jury. (Baku, J., dissents).</p>

Appeal, by defendant'^The New York Elevated ¡Railroad1 Company, from judgment of the General Term of the Court, of Common Pleas for tlie city and county of New York, made June 3, 1889, which affirmed a judgment in favor of plaintiff entered upon a verdict and also an order denying a-motion for a new trial as.to the said defendant, and reversed the same as to the defendant The ¡Metropolitan Elevated ¡Railway Company.

Appeal, by defendant Sarah F. Mead, from judgment of the General Term of the Court of Common Pleas in and for the city and county of blew York, entered upon an order made April 1, 1889, which affirmed a judgment in favor of plaintiffs 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 plaintiffs and other lienors are not injured by the contract between Kuhn and Mead.

<p>In proceedings under the General Railroad Act, ás amended in 1869 and 1871 (§ 4, chap. 907, Laws of 1869; chap. 283, Laws of 1871) by a taxpayer of a municipality which had issued its bonds in aid of the construction of a railroad, to compel the county treasurer to comply with the provisions of said act requiring him to invest and hold as a sinking fund, for the payment of said bonds, the taxes collected on the assessed valuation of the railroad in the municipality and paid over to said county treasurer, it appeared that during the years in question, there was an account on the said treasurer’s books called a general fund, in which was carried items of money not otherwise especially appropriated, and that there was in said fund at all times since the taxes in question had been collected, a greater sum than the total amount of said taxes. It did not appear that any portion of the moneys so collected and paid over had ever been paid out. Held, it was not necessary that the particular moneys paid by the railroad company should be identified; that the presumption was they still remained in the hands of the county treasurer and were part of the general fund; and that, an order requiring their investment as prescribed by the statute, was proper.</p> <p>* Also, held, that, as there was a continuing duty in the county treasurer to make the application required, the Statute of Limitations did not apply.</p> <p>Strmpgh v. Bd. of Supra. (119 N. T. 212), distinguished.</p> <p>Also, held, it was not material that the county treasurer defendant did not receive all the moneys directly from the railroad company, but that a portion thereof was received by his predecessors in office, the same having been paid over to and being now held by him as treasurer.</p> <p>Jt seems that as the taxes so collected are specifically appropriated, the question is not affected by the facts that the objects in each year for which the taxes of the years were raised did not include the creation of a sinking fund.</p>

The facts, so far as material, are stated in the opinion. ■ A judgment creditor, ®n whose judgment execution was returned unsatisfied prior to the enactment of the Code of Civil Procedure (September 1, 1880), may institute supplementary proceedings at any time during twenty years from the entry of his judgment. (Code Civ. Pro. §§ 292, 3352; Owen v. Duprignac, 9 Abb. Pr. 180; Driggs v. Williams, 15 id. 477; Bean v. Tonnelle, 24 Hun, 353; 1 Civ. Pro.

This action was brought in 1884, for an accounting of the partnership affairs of the firm of H. W. Gray & Co., which was composed of the plaintiff and defendant. The facts, so far as material, are stated in ’the opinion. The action is barred ;by the Statute of Limitations. (Code Civ. Pro. § 288; 2 Lindley on Part. 964; Loder v. Hatfield, 71 N. Y. 92; Mills v. Mills, 115 id. 84.) The action is not barred by the Statute of Limitations. (Code Civ.

This was an action to recover damages for. injuries received by plaintiff through the alleged negligence of defendant. At the time the injuries were received plaintiff was in defendant’s employ and was engaged in the performance of his duties.

<p>Appeal from judgment of the General Term of the Supreme Court in the fourth judicial department, entered upon an order made April 30, 1889, which affirmed a judgment in favor of plaintiff entered upon a verdict and affirmed an order denying a motion for a new trial.</p> <p>This was an action to recover damages for a breach of promise of marriage.</p> <p>The facts, so far as material, are stated in the opinion.</p> <p>It was error to permit evidence of defendant’s general reputation as a man of wealth. (People v. Beach, 87 N. Y. 508; Kniffer v. McConnell, 30 id. 285; Crosier v. Craig, 47 Hun, 83; Code Civ. Pro. §§ 828, 870; Becker v. Koch, 104 N. Y. 394; Cross v. Cross, 108 id. 628; 1 Greenl. on Ev. §§ 99,138; Whart. on Ev. § 253; Halliday v. McDougall, 20 Wend. 81; 22 id. 264; Harrison v. Henderson, 23 N. H. 498; Perkins v. Stebbins. 29 Barb. 523; Abbott’s Trial Ev. 40; Kenyon v. People, 26 N. Y. 203; McCarty v. Terry, 7 Lans. 236; Goddard v. Pratt, 16 Pick. 402, 433; Trowbridge v. Wheeler, 1 Allen, 162; Baldwin v. N. R. R. Co., 4 Gray, 333; Davis v. Wood, 1 Wheat. 6; Queen v. Hepburn, 7 Cranch, 290.) The court erred in submitting to the jury the question of exemplary damages. (2 Greenl. on Ev. § 253; Cowell v. Day, 18 Wkly. Dig. 98; Kiff v. Youmans, 86 N. Y. 324; Johnson v. Jenkins, 24 id. 254.) The court erred in charging the jury that in fixing the amount of damages plaintiff is entitled to such sum as would place her in as good a pecuniary condition as" she would have been if the contract had been fulfilled. (Schuler on Husband & Wife, §§ 60, 67, 69, 70.)</p> <p>The court charged the jury as favorably for the defendant as the evidence would warrant, in submitting the question of the breach of the promise to them. And the finding by the jury of the breach' of the contract is fully sustained by the authorities. (Abbott’s Trial Ev. 678; Hubbard v. Bonesteel, 16 Barb. 360; Willard v. Stone, 7 Cow. 22; Johnson v. Smith, 3 Pitts. 184; Coil v. Wallace, 24 N. J. L. 29; 63 Am. Dec. 540-542.) The amount of the verdict is just and proper. The grounds for damages fully sustain the verdict, and the same is not excessive. (Wood v. Hurd, 2 Bing. [N. C.] 166; Smith v. Woodfine, 1 C. B. [N. S.] 660; Campbell v. Paige, 50 N. Y. 658; S. O. Co. v. A. Ins. Co., 79 id. 506; Peck v. N. Y. C. & H. R. R. R. Co., 70 id. 587.) The fact that after the answer, and at the time of the trial of this case, because of the character of the defendant’s answer, the plaintiff became unwilling to marry the defendant, is no defense; nor is it a circnmstance in mitigation of damages. (Bennett v. Beam, 42 Mich. 346; 36 Am. Rep. 442; Southard v. Rexford, 6 Cow. 254, 258; Kurtz v. Frank, 76 Ind. 594; 40 Am. Rep. 275; Blattmacher v. Saal, 7 Abb. Pr. 409.) The ■ evidence as to the situation of the plaintiff, her preparation for the marriage, her humiliation by reason of the breach of the contract and the pecuniary condition of the defendant, was competent. (Fowler v. Martin, 1 T. & C. 377; 56 N. Y. 676; Button v. McCauley, 1 Abb. Ct. App. Dec. 282; Wilcox v. Green, 23 Barb. 639; Trelaway v. Coleman, 2 Starkie, 191; Abbott’s Trial Ev. 677, 678; Tompkins v. Wadley, 3 T. & C. 424; McKee v. Nelson, 4 Cow. 355; Whart. on Ev. 512; James v. Biddington, 6 C. & P. 589; Hall v. Wright, 96 Eng. C. L. 763; Brown v. Barnes, 39 Mich. 211; Bennett v. Beam, 42 id. 346; Allen v. Baker, 86 N. C. 91; Harrison v. Swift, 13 Allen, 144; Sprague v. Craig, 51 Ill. 288; Sedg. on Dam. [7th ed.] 146; Lawrence v. Cooke, 56 Me. 187; Mayne on Dam. § 677; Kerfoot v. Marsden, 2 F. & F. 160; Kniffin v. McConnell, 30 N. Y. 285; Crandall v. Quinn, 19 J. & S. 276; Crosier v. Craig, 47 Hun, 83; 3 Addison on Cont. § 1360; Kelly v. Riley, 106 Mass. 339; Burnham v. Cornwell, 63 Am. Dec. 546; McPherson v. Ryan, 26 N. W. Rep. 321; Johnson v. Jenkins, 24 N. Y. 252; Thorn v. Knapp, 42 id. 474.)</p>

• affirmed a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term. The nature of the action and the facts, so far as material, are stated in the opinion. The gravamen of the complaint relates to a reconveyance of property .which had passed from the plaintiff to the defendant, to which the plaintiff claimed to he entitled by virtue of a parol promise to reconvey.

The plaintiff was a contractor and builder and entered into-contracts with the defendant for the erection of certain houses. By this action he seeks to be relieved from what he terms the. penalty contained in his contracts, and to recover from the defendant a certain amount of money withheld by it.

The nature of the action and the facts, so far as material, are stated in the opinion. The rights of the defendants as between themselves cannot be adjudicated in this action. (Smith v. Hilton, 2 N. Y. Supp. 820; Pom. Eq. Juris. §§ 244, 245; Bonton v. City of Brooklyn, 15 Barb. 375; Crevier v. Mayor, etc., 12 Abb. Pr. [N. S.] 340.) DeOhambrun’s interest, if any, was that of a lienor, not that of a tenant in common.

1 at Special Term. The controversy in this case was as to the right to surplus moneys derived under a foreclosure of certain first mortgages on lands in the city of Brooklyn, which on and prior to February 13, 1878, were owned by the defendant Michael K. Wilson, and whose title was subject to such mortgages. The surplus moneys were deposited with the treasurer of Kings county to the credit of the foreclosure action, where they still remain.

The plaintiffs, as stockholders of the Suspension Bridge and Erie Junction Bailroad Company, have brought this action against that company, the Hew York, Lake Erie and Western Bailroad Company, and Hugh J. Jewett, as receiver of the Erie Bailway Company, as defendants, to compel the payment of certain rental moneys, which were payable according to the terms and provisions of a lease, under which the Hew York, Lake Erie and Western Bailroad Company is now operating the road…

The nature of the action and the facts, so far as material, are stated in the opinion. The acts complained of are not illegal official acts.

<p>After default in the payment of a debt secured by a chattel mortgage, the mortgagor has no interest in the mortgaged property that can be sold on execution against him.</p> <p>In an action brought to dissolve an insolvent corporation, a receiver was appointed. The corporation had executed a mortgage on certain of its personal property to secure its notes. The mortgage provided that if the mortgagor should suffer any judgment to he entered against it, the whole sum secured should become due, and the mortgagee have the right to take possession and sell the property on five days’ notice, and out of the proceeds pay the debt, returning any balance to the mortgagor or assigns. Three days before the receiver was appointed, a creditor of the corporation recovered a judgment, issued execution, and levied upon the mortgaged property; at that time two of the notes secured by the mortgage were due and unpaid. In proceedings to determine the rights of the parties in and to the avails of the mortgaged property which had been sold under an order entered by consent in the action to dissolve the corporation, held, that at the time of the levy the mortgagor had no interest subject to a levy, and so, that the judgment creditor acquired no lien; that the five days’ notice, provided for in the mortgage, was not necessary in order to perfect the default, but simply applied to the time and place of sale under the mortgage; that the mortgagee was first entitled to he paid the amount of the indebtedness secured, and the receiver was entitled to the balance.</p>

Cross-appeals from judgment of the General Term of the Supreme Court in the second judicial department, entered upon an order made June 27, 1889, which affirmed a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term.

This action was brought against defendant, a corporation engaged in running a line of steamboats on the Hudson river between Hew York and Albany, to recover damages for injuries resulting from its alleged negligence in omitting to close the gang-way of a boat upon which plaintiff was a, .passenger. This case is reported on a former appeal in 68 H. Y. 306..

The nature of the action and the facts, so far as material, are stated in the opinion. The right of pre-emption given hy the covenant was an absolute right to repurchase the premises at any time. (Randall v. Sanders, 87 N. Y. 578, 583; 2 Stephen’s Comm. [8th ed.] 539; Manning on Law of Nations, 393; 1 Chitty on Comcl.

September 11, 1889, awarding the complainant nothing upon a claim filed pursuant to the act of 1884 (Chap. 318, Laws of 18'84), authorizing said board to hear, determine and audit certain claims of the state against certain counties therein named. The facts, so far as material, are stated in the opinion. The legislature had the power to create the Board of Claims and to confer upon it all the powers attempted to be conferred by chapter 318 of the Laws of 1884.

<p>Appeal by defendants, James A. Flack and William L. Flack, from a judgment of the general term of the supreme court, affirming a judgment entered upon a conviction of the crime of conspiracy rendered against them on the verdict of a jury in the court of oyer and terminer of Hew York city and county, on March 31, 1890.</p> <p>The indictment, facts, and points of counsel are very fully given in the report of the case at general term, 8 N~. JT. Criminal Reports, 43.</p>

<p>A tenant having the right to remove fixtures placed by him upon the demised premises during the term, in case he holds over after its termination without a new lease, has the same right of removal so long as he remains in possession, and on being evicted by summary proceedings on account of such holding over, if he claims and is refused the right to take such fixtures with him, he may maintain an action for their conversion.</p> <p>Where a judgment may have proceeded "upon either of two or more distinct facts, a party seeking to avail himself of it in a subsequent action as conclusive evidence as to one of those facts, must show affirmatively that it went upon that fact.</p> <p>Defendant leased plaintiff and another certain vacant lots at a summer resort, for two seasons. The lease provided that the lessees should erect a building thereon, which they were entitled to remove at the expiration of the lease, if all the rents and arrearages were fully paid; if not paid, it was provided that “ the said building shall be forfeited to and become the property ” of the lessor. The lessees erected a building in such manner that it could be removed; they failed to pay the installments of rent for the last season as they fell due, but before its close paid all but §150; they remained in possession after its close, and during the winter paid the balance. In the following May, summary proceedings were brought against them for wrongfully holding over beyond the term. The plaintiff, to whom his co-tenant had assigned his interest, joined issue, alleging that defendant had renewed the lease for the next season. Judgment was rendered against plaintiff, and he was ejected accordingly; he claimed at the time the right to remove the building, but the officer who executed the writ refused to allow him to do so; he thereafter attempted the removal, but was prevented by defendant. Held, that the provision for forfeiture in case of default in the payment of rent was in its nature simply a security for such payment, wdiich might be waived by the lessor; that if so waived, plaintiff had the right to remove the building, and an action for the conversion thereof was maintainable.</p> <p>Upon the trial, plaintiff testified, under objection, to a conversation had, with the president of the defendant before the close of the last season covered by the lease, in which the latter told him to go on and pay the balance of the rent due, and he could stay another year, and he would be able to make it up another season; that in consequence of this conversation, he paid the rent and remained in possession. This testimony was subsequently stricken out on the ground that plaintiff was concluded by the judgment in the summary proceedings, and plaintiff nonsuited.</p> <p>Held, error; that the evidence tended to establish a waiver of the forfeiture, and at least left the question one of fact for the jury; that while: the summary proceedings adjudicated that no leasing for another year-had been made, as it did not appear upon what ground the decision was. based, and as it might have been upon the ground that defendant’s president had no authority to lease for another season, the judgment was not. conclusive; that the burden of proof was upon defendant to show that it went upon the ground that no agreement was entered into with its. president.</p>

The nature of the action and- the facts, so .far as material, are stated in the opinion. The plaintiff is not entitled to recover unless he establishes negligente on the part of the defendant in the management and use of its dam and the water drawn therefrom. (Cuddeback v. D. & H. C. Co., 20 Wkly.

The nature of the action and the facts, so far as material, are stated in the opinion.

January 28, 1889, which affirmed a judgment in favor of plaintiff entered upon the report of a referee. This was an action for money had and received. One John E. Brown, acted as the common agent of the plaintiff and the defendant at the city of New York, selling cement on commission for the plaintiff, and' lime on commission for the defendant.

<p>Arrest. In civil action.—A motion can be made at any time to vacate an order of arrest, where the complaint does not allege, &nd the proofs show, fraud inherent in contracting, or seeking to avoid, debt, where the application is based on such grounds.</p>

This was a proceeding by certiorari to review the acts of defendants, as assessors of the city of Brooklyn, in assessing certain lands belonging to the relator. The facts, so far as material, are stated in the opinion. By the repeal of the amendatory act of 1871, the city of Brooklyn is without power to assess lands outside of its limits.

This was an action upon an undertaking given by defendant upon the admission to bail of one Frank Cava. The facts, so far as material, are stated in the opinion. It is not essential to the validity of the undertaking that it shall state the crime for which the person is held. (People v. Blankman, 17 Wend. 255; 1 Chitty on Crim.

' Appeal from order of the General Term of the Supreme -Court in the second judicial department, made January 2, 1891, which reversed an order of the Surrogate’s Court of Kings county declaring three certain legacies under the will of Benjamin Sherwell, deceased, exempt to the amount of $500 each. Decedent, at the time of his death, resided in England.

This was an action of ejectment brought by the mayor, etc., of Yew York against executors and trustees under the last will and testament of George Law, deceased, George Law, Jr., and the Greenpoint Ferry Company, to recover possession of the northerly half of Tenth street in the city of Yew York, lying between the westerly end of the ferry-house of the Green-point ferry and the exterior or bulk-head line in the East river, together with the pier or part of a pier and other…

This action was brought upon an official bond given by Edward D. Gale on his appointment as attorney for the collection of arrears of personal taxes in the city of Mew York Under the act, chapter 334, Laws of 1867.

The nature of the action and the facts, so far as material, are stated in the opinion. This non-resident plaintiff had no standing in the courts of this state at common law against a foreign representative of a foreign estate. If the plaintiff has now any standing therein, it must he by virtue of some statute. But our statutory law gives a non-resident plaintiff no standing in our courts. (Code Civ. Pro. §§ 2701, 2839; Moyer v. Weil, 1 Dem. 71; Ordronaux v. Helie, 3 Sandf.

This action was brought to recover damages for the negligent killing by defendants of John W. Daniels, plaintiff’s intestate. The facts, so far as material, are stated in the opinion. The question whethei the'defendant was or was not negligent in a case like this is a question of law to be determined by the court. (Burke v. Witherbee, 98 N. Y. 565.) Rothing ivas proved against the defendant which justified the submission of any question to the jury.

<p>While the strict, technical meaning of the words “legal representatives” is administrators or executors, and they must be so construed in the absence of anything showing a different intent; as they are not always used in this sense, it is the province of construction in any case to ascertain the sense in which they were used, and for that purpose the subject-matter, and the surrounding circumstances, as well as the language used may be considered.</p> <p>By a paid-up policy of insurance upon the life of G., issued in consideration of the surrender of a prior policy, the sum insured was made payable “ to his legal representatives.” It appeared that at the time the policy was issued, G., who was an old man, had a wife and seven children dependent upon him; that he had recently been reduced from large wealth to insolvency. There was no proof for whose benefit the surrendered policy had been issued. In an action to determine as to whether the widow and children of G. or his administrators were entitled to the sum insured, held, that the former were so entitled; that, where in such a policy, it is the intention that its avails shall descend and be used as common assets, the invariable language is to “pay to the said assured, his executors, administrators or assigns,” and that the use instead of the words “legal representatives,” under the circumstances, clearly imported an intent that the money should go for the benefit of the heirs and next of kin of the assured; also that as G.’s creditors in his life-time did not take or claim the benefit of the original or the paid-up policy, the reasonable inference was that the former was for the benefit of his family, and that the latter was intended to take its place.</p>

Kavanagh, deceased. The facts, so far as material, are stated in the opinion. The law of this state is that legacies and devises to a corporation under a will made within two months of the testator’s' death are absolutely void.

This action was brought to recover damages by reason of the death of plaintiff’s intestate, alleged to have been caused by the negligence of defendant while decedent was traveling on one of its trains as an employe of the Hational Express Company as messenger. The material facts are stated in the opinion.

The nature of the action and the facts, so' far as material, .•are stated in the opinion.

The nature of the proceedings and the facts, so far as material, are stated in the opinion. The petitioner possesses no right to the exercise of its claimed franchises. Its road was not commenced within the time limited by law. (Laws of 1874, chap. 585, § 12.) The road of the petitioner was not completed within the time limited by law.

The nature of the action and the facts, so far as material, ;are stated in the opinion. Mrs. Curtis, being ■owner in fee, subject to the mortgage by Dimond to Wagstaff, had an absolute right to dispose of the property subject to that mortgage. (Packer v. R. R. R. Co., 17 N. Y. 296.) The trust to receive the rents and profits of the lands and apply them to the use of Mrs. Curtis during her- life was a valid -express trust.

Appeals from orders of the General Term of the Supreme Court in the fifth judicial department, made April 29, 1890, which reversed orders of the Special Terms in certiorari proceedings taken under chapter 269 of the Laws of 1880, to review assessments of the relator’s property in the village of Little Falls, made by the village trustees in the years 1886 and 1887.

The facts, so far as material, are stated in the opinion. There is nothing in section 13 of article 6 of the Constitution, or in the amendment of 1880, separately or together, which tends to show that the people, by the adoption thereof, were trying to provide for a general pension to all judges and justices who might have served ten years as such long before the adoption thereof.

This action was brought by the plaintiff as receiver of the Widows and Orphans’ Benefit Life Insurance Company, upon a guaranty executed by Andrew W. Morgan, defendant’s intestate, and others. On the 8th of March, 1877, the corporation was dissolved by a judgment of this court, upon the application of the attorney-general. Plaintiff claimed to recover the amount unpaid upon policies of insurance issued by the company.

The nature of the action and the facts, so far as material,, are stated in the opinion. What came to these three-sons at their father’s death, aud by the fifteenth clause of Ms will, were future estates.

<p>1. Cobpobation—Action fob fobfeitube of chabteb—Pleadings.</p> <p>An action to annul the charter of a corporation on the ground of the suspension of its business cannot be maintained unless such suspensionhas continued for a year.</p> <p>2. Same.</p> <p>The complaint must show on its face corporate acts or omissions such as not only put the company in the wrong, but such as were either voluntary or negligent, and so material a disobedience of the public law as within established rules to warrant a judgment of dissolution. Allegations of omission to run trains for five days will not suffice.</p> <p>3. Same—Laws 1887, chap. 529.</p> <p>A failure to observe chap. 529, Laws 1887, which provides that ten hours shall constitute a day’s work, is not a legal cause for forfeiture.</p>

<p>Appeal from judgment of the General Term of the Supreme Gourt in the second judicial department, entered upon an order made July 18,1890, which affirmed a judgment entered upon a decision of the S2:>eeial Term sustaining a demurrer and dismissing the complaint herein.</p> <p>This was an action to procure a forfeiture of charter oí defendant, a street railroad corporation, organized under the General Bailroad Act, and a dissolution of the corporation.</p> <p>The complaint alleged two causes of action.— 1st. A failure of defendant, for1 five successive days, to ran its trains and operate its road. 2d. An exaction, by defendant from its employes, of more then ten hours a day of labor.</p> <p>The respondent’s</p> <p>charter should be annulled for the following causes: It has forfeited its privileges and franchises by a failure to exercise its powers. It has offended against an act under which it was created, and acts amending the same and- ap23licable to the respondent; and it has violated a provision of law whereby it has become liable to be dissolved by the abuse of its powers, (Bradt v. Benedict, 17 N. Y. 93, 98; Code Civ. Pro. §§ 1785, 1798; Herring v. N. Y., L. E. & W. R. R. Co., 105 N. Y. 340; People v. B. & R. T. Co., 23 Wend. 243; People v. Palmer, 109 N. Y. 110; People v. W. Co., 2 Keyes, 330; People v. W. T. Co., 47 N. Y. 586; People v. O’Brien, 111 id. 48; Moore v. B. C. R. R. Co., 108 id. 104; C. L. Co. v. Needler, 113 U. S. 580; Laws of 1850, chap. 140, § 1; City of Brooklyn v. W. R. R. Co., 75 N. Y. 335; Day v. O. & L. C. R. R. Co., 107 id. 129; People v. N. Y. C. & H. R. R. R. Co., 28 Hun, 543; People v. A. & V. R. R. Co., 24 N. Y. 261; Thompson v. People, 23 Wend. 581; People v. Thacher, 55 N. Y. 529.) The complaint expressly charges the' defendant with a violation of subdivision 1 of section 1798, which provides for a forfeiture of the charter when the defendant has offended against any provision of an act by or under which it was created, altered or renewed, or an act amending the same, and applicable to the corporation. (Laws of 1850, chap. 140, § 36; People v. B. & R. T. Co., 23 Wend. 222; People v. H. & C. T. Co., Id. 256-258; People v. N. R. S. R. Co., 121 N. Y. 582-608; 2 Morawetz on Corp. § 1024.) The respondent violated the terms and provisions of chapter 529 of the Laws of 1887. (Gould v. Town of Sterling, 23 N. Y. 456; Mayor, etc., v. T. T. S. R. R. Co., 113 id. 311; Purdy v. N. Y. & N. H. R. R. Co., 61 id. 353; Morawetz on Corp. §§ 1016, 1024; People v. N. R. S. R. Co., 121 N. Y. 582; People v. K. & M. T. R. Co., 23 Wend. 193.) This act of 1887 is constitutional. (State Const. art. 8, § 1; 1 R. S. 600, § 8; Laws of 1850, chap. 140, § 48; People ex rel. v. B. & A. R. R. Co., 70 N. Y. 569; B. R. R. Co. v. E. S. R. R. Co., 111 id. 132; Peoples v. Budd, 117 id. 1; Mayor, etc., v. T. T. S. R. R. Co., 113 id. 311, 317.)</p> <p>The alleged omission to operate the defendant’s road is not a cause for forfeiture. (Bradt v. Benedict, 17 N. Y. 96; Code Civ. Pro. § 1785; People v. N. Y. C. & H. R. R. R. Co., 28 Hun, 543.) A violation of chapter 529 of the Laws of 1887 is no ground of forfeiture.) Atty.-Genl. v. Bank of Niagara, 1 Hopk. Ch. 403.)</p>

■ Appeal from order of the Superior Court of the city of ¡New York, made March 4, 1890, which affirmed an order by the trial judge setting aside a verdict in favor of plaintiff and granting a new trial. This was an action to recover money belonging to plaintiff alleged to have been had and received by William H. Fogg, deceased, defendant’s testator. The Acts, so far as material, are stated in the opinion.

This action was brought to recover damages for the alleged negligent killing of Catharine Rodrian, plaintiff’s intestate, while attempting to cross Grade street in the town of Mamaroneck where it is intersected by defendant’s tracks. The facts, so far as material, are stated in the opinion.

This action was brought by plaintiff, who was one of defendant’s trustees, to recover money claimed to have been loaned and advanced to it by him. An attachment was granted therein. The contents of the affidavits on which the attachment was granted and the facts, so far as material, are stated in the opinion. The warrant of attachment was vacated solely on the ground that it was in derogation of section 4, title 4, chapter 18 of part 1 of the Revised Statutes.

The relator was a . member of Company K., Fourteenth Regiment, FT. G. S. FT. Y., and on January 14, 1889, a delinquency court was appointed, pursuant to section 104, article 14 of the Military Code, for the trial of enlisted men for any and all delinquencies, including non-payment of company dues. On February 5, 1839, a notice was served upon the relator to appear before said court on February 8, 1889, to answer for certain delinquencies with which he had been charged.

<p>The will of H. gave her house and lot to E.; it provided that if at her death she was not possessed of a house and lot, her executor should pay to E. $3,000, on consideration that E. should pay to a half-brother of the testatrix a specified annuity, and should, at the time of the payment to her of the $3,000, or the conveyance of the house and lot, give security for the-payment of the annuity. The will then gave legacies of $100 each to seven persons named, three of whom were relatives and one was the annuitant, The terms or all the gifts were: “I give and bequeath.” Then-followed these provisions: “If before my decease I pay any of the above bequests or all of them, a receipt from any or all of them will be a satisfaction of this bequest. * * * I order that in case my estate exceeds the amount of the above bequests to each individual, then my executor must pay to the above persons the excess in the proportion as the amounts of the bequests are to the whole amount, and in case my estate falls short, then each of the above bequests must share in the shortage in the same proportion. In other words, the excess or shortage must be shared pro rata as the bequests are.” There was a surplus for distribution under this clause. The testatrix died seized of the house and lot mentioned; the annuitant died before the testatrix. In a proceeding involving the construction of the will, held, that the gift to E. was a specific devise with a substitution of an equivalent in money in case of a sale; that the words “ above bequests ” in the provision disposing of the surplus, did not include the devise or the contingent substituted bequest; and so, E. was not entitled to share in the surplus,</p>

• This action was brought by plaintiff, as assignee for the benefit of creditors of the firm of Dow, Short & Co., to set aside a deed executed by the defendant Orinda B. Sperry, a member of said firm, to the defendant Fannie M. Short as. fraudulent and void as against creditors. The burden of proof is, upon the plaintiff to establish that the defendants have been guilty of the fraud charged in the complaint.

<p>Appeal from judgment of the General Term of the Supreme Court in the first judicial department, entered upon an order made November 7, 1889, which affirmed a judgment entered upon a decision of the court on trial at Special Term which adjudged certain clauses in the last will and second codicil thereto of Catherine 31. McCoskry, deceased, to be invalid.</p> <p>This action was brought by certain of the next of kin and heirs at law of Catherine M. McCoskry, deceased, to determine the validity of certain clauses in her last will and testament and the codicils thereto. •</p> <p>The material portions of the will and codicils and facts are stated in the opinion.</p> <p>The contention of the counsel for the respondents that the direction to. sell the real estate contained in the seventh clause of the will constituted a “ conversion out. and out,” is untenable. (White v. Howard, 46 N. Y. 162; Cruse v. Barley, 3 P. Wms. 22; 2 Kent’s Comm. [12 ed.] 283; Wright v. Trustees, etc., Hoff. Ch. 219.) A sale of the real estate was directed solely for the purpose of the will. The only purposes for which such sale became necessary were those provided for in residuary clause. That clause being invalid, the purposes for. which such sale was required have wholly failed. There was, therefore,, no equitable conversion, and the unsold real estate reverts to the heirs at law and not to the next of kin. (Ackroyd v. Smithson, 1 Brown Ch. 503; Chitty v. Parker, 2 Ves. 271; Lewin on Trusts [8th ed.] 149; Jarman on Wills, 619-622; Snell on Eq. [7th ed.] 197; Cruse v. Barley, 3 P. Wms. 20; Collins v. Wakeman, 2 Ves. 683; Gibbs v. Rumsey, 2 Ves. & B. 294; Cogan v. Stephens, 1 Beav. 482 n.; Smith v. Claxton, 4 Madd. 493; Fitch v. Weber, 6 Hare, 145; Amplett v. Parke, 2 Russ. & My. 221; Eyre v. Marsden, 2 Keen, 574; Parker v. Linden, 113 N. Y. 37; Chamberlain v. Taylor, 105 id. 185-194; Jackson v. Jansen, 6 Johns. 73; Sharpsteen v. Tillon, 3 Cow. 651; Lorillard v. Custer, 5 Paige, 172; Hawley v. James, 7 id. 213; Wood v. Cone, Id. 471; Wright v. Trustees, etc., Hoff. Ch. 202; Wood v. Keys, 8 Paige, 365; Bogert v. Hertell, 4 Hill, 492; Slocum v. Slocum, 4 Edw. Ch. 613.)</p> <p>The gift of money by Mrs. McCoskry is directly to charitable institutions, while to her executors is given not the fund, but a special, imperative power of appointment to select the legatees of the fund from a designated class. (1 R. S. 732, 734, §§ 74, 78, 96; Holmes v. Mead, 52 N. Y. 332; Power v. Cassidy, 79 id. 602, 610; Pritchard v. Thompson, 95 id. 76, 80.) It is submitted that in the clause of Mrs. McCoskry’s codicil in question she fully conformed to all these conditions, and that the gift therein made should be sustained. (City of Indianapolis v. Sturdevant, 24 Ind. 391; Power v. Cassidy, 79 N. Y. 602, 612; Pritchard v. Thompson, 95 id. 76, 82.) The power of appointment granted by the testatrix to her executors in connection with Dr. Hall, could only be properly exercised by the selection of charitable institutions created by and existing under the laws of this state. (In re O'Hare, 95 N. Y. 403, 418; Savage v. Burnham, 17 id. 561, 571.) The power of appointment given to the executors is within the statute definition of “ a special power in trust,” because the disposition which it authorizes is limited to be made to a class of persons (institutions) other than the grantee of such power. (1 R. S. 734, § 95.) The provision in question is not invalid by reason of the statute against perpetuities. (Robert v. Corning, 89 N. Y. 225; Cruikshank v. Chase, 113 id. 337.)</p> <p>The eleventh clause of the codicil is valid. (Thompson v. Quimby, 2 Bradf. 449; 3 id. 101; Burrill v. Boardman, 43 N. Y. 259; Shipman v. Rollins, 98 id. 324.) The bequest in the will at bar was to the corporation, subject to certain contingencies and by the execution of a power of appointment. It is not necessarily a trust. Its enforcement and effect is to be gathered from the Statute of Powers and adjudications on powers and powers of appointments. (3 R. S. [7th ed.] 2188, Sugden on Vendors, 319; Chancery Precedents, 472; Jackson v. Vedder, 11 Johns. 169; Jackson v. Jansen, 6 id. 73; Cutting v. Cutting, 86 N. Y. 522; Hutton v. Benkard, 92 id. 295, Sugden on Powers, 117; In re Bierbaum, 40 Hun, 504; Jennings v. Conboy, 73 N. Y. 230; Power v. Cassidy, 79 id. 604.) The power of alienation was not suspended, but in abeyance long enough to ascertain the condition of the estate, so as to determine whether there would be a residue or not. (1 R. S. 726, § 40; Shipman v. Rollins, 98 N. Y. 311; Delafield v. Shipman, 103 id. 469.) It is the duty of the court to so construe the will as not to defeat the intention of the testatrix. (Pond v. Bergh, 10 Paige, 152; Wager v. Wager, 96 N. Y. 171.)</p> <p>Assuming that the trial court correctly adjudged that the will worked an equitable conversion of the real estate of the testatrix into personalty, her next of kin, "contending that certain provisions of her will are ineffectual, and claiming that they are entitled to the property under statutory rules, cannot maintain an action for the construction of the instrument which they allege to be invalid. (Chipman v. Montgomery, 4 Hun, 657; Post v. Hover, 33 N. Y. 602; Bowers v. Smith, 10 Paige, 193, 200; Bailey v. Briggs, 56 N. Y. 407, 413; Wager v. Wager, 89 id. 161; Code Civ. Pro. § 1866; Horton v. Cantwell, 108 N. Y. 255.) The intention of the testator must be carried out, if he has expressed that intention in such terms that it can be clearly ascertained, and if no rule of public policy will be thereby violated. (Hartwell v. Wandell, 60 N. Y. 349; Holmes v. Mead, 52 id. 343.) The clause of the codicil disposing of the residuary estate does not create a suspension of the power of alienation beyond two lives in being at the death of the testatrix, and is valid, (Bradley v. Kuhn, 97 N. Y. 34; Everitt v. Everitt, 29 id. 71, 72; Smith v. Edwards, 88 id. 92; Loring v. Marsh, 6 Wall. 337; 1 Sudg. on Powers [8th ed.], 128; 2 Story’s Eq. Juris. § 1062; Perry on Trusts, §§ 491-496.) When, the conversion is to answer certain purposes, which fail in part or whole, the conversion ceases with its object, and reverts to its original character. In the case of converted realty the heir takes, not the next of kin. (Ackroyd v Smithson, 1 Bro. Ch. 503; Cruse v. Barley, 3 P. Wms. 20, Lewin on Trusts [8th ed.], 149, 150; Slocum v. Slocum, 4 Edw. 613; Wood v. Cone, 7 Paige, 471; Jackson v. Jansen, 7 Johns. 73; Wright v. Trustees, etc., Hoff. Ch. 202, 219, 220; Betts v. Betts, 3 Abb. [N. C.] 317, 419, 420; Gourley v. Campbell, 66 N. Y. 169, 174; Sharpsteen v. Tillou, 3 Cow. 651; Chitty v. Parker, 2 Ves. 571; Bispham’s Pr. Eq. § 315.) When, however, the conversion is out and out, that is, not to answer particular purposes, but to answer generally all ends of the testator, any surplus arising is considered personalty forever, and does not revert to the heir. (Cruse v. Barley, 3 P. Wms. 20, 38, Bispham’s Pr. Eq. §§ 317, 318, 319; 5 Leigh & Dalz. on Eq. Conv. 128; Fitch v. Weber, 6 Hare, 145; Amphlet v. Parke, 2 R. & M. 221; Lewin on Trusts, 149, 150; Wright v. Trustees, etc., Hoff. Ch. 202.)0</p> <p>The court has jurisdiction. (Bowers v. Smith, 10 Paige, 193, Wager v. Wager, 89 N. Y. 161.) The next of kin have a right to maintain this action. (Bowers v. Smith, 10 Paige, 200; Wager v. Wager, 89 N. Y. 166; Holland v. Alcock, 108 id. 312.) This estate is all personalty. (Fisher v. Banta, 66 N. Y. 476; 2 Redf. on Wills, 125, 126; Delafield v. Barlow, 107 N. Y. 535; Hobson v. Hale, 95 id. 596.) The mortuary clause is invalid. (3 R. S. [7th ed.] 2256.) The eleventh clause of the second codicil concerning the residuum is void. (Williams v. Williams, 8 N. Y. 527; Holland v. Alcock, 108 id. 312; Prichard v. Thompson, 95 id. 80; 1 Perry on Trusts [2d ed.], § 253; Bascom v. Albertson, 34 N. Y. 590; Owens v. M. Society, 14 id. 380; Leonard v. Burr, 18 id. 96; Phelps v. Pond, 23 id 69; Beekman v. Bonsor Id. 298, Downing v. Marshal, Id. 396; Levy v. Levy, 33 id. 107.) There being no trustee, there being no trust created with respect to the fund, and no person or corporation entitled to take as beneficiary, it follows that the estate vested on the death of Mrs. McOoskry in her next of kin. With respect to the residuum she died intestate, and they succeeded instantly by operation of law. An estate so vested cannot be divested by any subsequent • act of any person other than the inheritors. And the next of kin take under the Statute of Distributions. (Holland v. Alcock, 108 N. Y. 312; Prichard v. Thompson, 95 id. 80; Bascom v. Albertson, 34 id. 590; Chamberlain v. Chamberlain, 43 id. 429.)</p>

Court in the second judicial department, entered upon an order made December 10, 1889, which affirmed-a judgment in favor of plaintiff: entered upon a decision of the court on trial at Special Term. This action was brought originally against the Manhattan Savings Bank to recover the amount of deposits made by Charles H. Edwards, deceased.

<p>Cboss-appeals from judgment of the General Term of the Supreme Court in the second judicial department, entered upon an order made February 10,1890, which modified and affirmed as modified a judgment construing the will of Abraham Hewlett, deceased, 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 town of Hempstead had no capacity to receive the legacy. (Lorillard v. Town of Monroe, 11 N. Y. 392; Maxmilian v. Mayor, etc., 62 id. 160, 165; City of Rochester v. Town of Rush, 80 id. 302; People v. Town Auditors, 74 id. 315, 316; Town of Guilford v. Bd. of Suprs., 13 id. 143, 146, 147; People v. Brown, 55 id. 187; Dillon on Mun. Corp. §§ 22-25, 28-30; People v. Detroit, 28 Mich. 228 Corporation of Gloucester v. Wood, 3 Hare, 131, 140; 1 H. L. Cas. 272, 285.) Any gift accompanied by an imperative direction to apply it to specified purposes is a trust, and the donee takes it with an obligation to devote it to those purposes except where such application is for the benefit of the donee only (1 Jarman on Wills [5th Am. ed.], 694), or, if the donee be a corporation, what is the same thing, where the application directed is essentially the same as would be enjoined by the fundamental law of the corporation without such direction. (1 Jarman on Wills [5th Am. ed.], 694; Williams v. Williams, 8 N. Y. 525; B. P. Comrs. v. Armstrong, 45 id. 234.) The trust is a charitable trust for the use of the poor of the town without distinction, to apply the income' to their support, the corporation legatee by its corporate agents to make the application according to its judgment and discretion; and not a trust for a public use, to wit: to pour such income into the governmental channels which flow to the support of a limited class of poor in lieu of taxation. (Atty.-Gen. v. Clarke, Ambler, 422; Atty.-Gen. v. Wilkinson, 1 Beav. 373; Atty.-Gen. v. Bovill, 1 Phil. 763, 768; Atty.-Gen. v. Exeter, 2 Russ. 53; Atty.-Gen. v. Price, 3 Atk. 108, 110; Atty.-Gen. v. Brandreth, 1 Y. & C. 200, Hereford v. Adams, 7 Ves. 324, 330; McIntire v. Zanesville, 17 Ohio St. 352; Atty.-Gen. v. Blizzard, 21 Beav. 233; Doe v. Howell, 2 B. & Ad. 744.) The gift can be sustained only upon the theory that the corporation legatee has so clearly been authorized to take and execute such a trust, as to amount to an abrogation in its favor and m favor of gifts to it of such general lands. (Adams v. Perry, 43 N. Y. 500; Cottman v. Grace, 112 id. 306, 307; Riker v. Leo, 115 id. 93.) Towns have corporate capacity only to purchase and hold in trust such material property, real and personal, as is necessary or convenient for actual occupation and manual use within the town for some specific governmental or clearly public purpose in which all the inhabitants are interested; and nothing more is meant by “ necessary to the exercise of its administrative powers.” It is the authorized trust depositary of the title of such property and nothing more. (Vail v. L. I. R. R. Co., 106 N. Y. 283; Coggeshall v. Pelton, 7 Johns. Ch. 292; Davies v. Mayor, etc., 83 N. Y. 207; Dillon on Mun. Corp. §§ 54, 56; Jackson v. Hartwell, 8 Johns. 422; 1 R. L. 219, 221, 222; 1 R. S. chap. 15, §§ 1, 42; Laws of 1846, chap. 186; Laws of 1856, chap. 179, § 27; Laws of 1840, chap. 318; Laws of 1841, chap. 261; Laws of 1864, chap. 555, § 15.) Even if it were fairly inferable that the testator intended to authorize the town to expend the fund immediately in gross for the benefit of the poor, in that case, though the statute against perpetuities might not be urged against the validity of the gift, it is still void for indefiniteness of the beneficiaries. (Holland v. Alcock, 108 N. Y. 312.) The town of Hemp-stead had no power to take either real or personal property by will, whether to its own use or to charitable uses. (2 Black. Comm. 241; 4 Kent’s Comm. 373; Durando v. Durando, 23 N. Y. 334; Kohl v. U. S., 91 U. S. 374; Sherwood v. A. B. Society, 4 Abb. Ct. App. Dec. 227; In re McGraw, 111 N. Y. 84; McCartee v. O. A. Society, 9 Cow. 437; In re Underhill, 6 Dem. 466.) There is no equitable conversion of the real estate. (Chamberlain v. Taylor, 105 N. Y. 185; 2 R. L. 537, chap. 84; 1 R. L. 263, chap. 84.)</p> <p>Every intendment of law and public policy is in favor of the legacy to the town of Hempstead. (Riker v. Leo, 115 N. Y. 103; Cruikshank v. Home of Friendless, 113 id. 349.) The town of Hempstead has capacity to take by bequest. (People v. N. Y. & M. B. R. Co., 84 N. Y. 565; Williams v. Williams, 8 id. 525; In re McGraw, 111 N. Y. 84; Betts v. Betts, 4 Abb. [N. C.] 317, 396; Angell & Ames on Corp. § 177; In re Fox, 52 N. Y. 530; Levy v. Levy, 33 id. 122; Burrill v. Boardman, 43 id. 263; Davies v. Mayor, etc., 83 id. 287; K. C. F. Ins. Co. v. Stephens, 101 id. 411; Wills v. Town of Salina, 119 id. 280.) The capacity to take this legacy is expressly conferred upon the town by the Eevised Statutes. (Const of 1777, art. 36; Const. of 1821, art. 7, § 14; Const. of 1846, art. 1, § 18; Davies v. Mayor, etc., 83 N. Y. 207; City of Buffalo v. Bettinger, 76 id. 393.) The support of the poor is one of the municipal functions of the town of Hempstead. (State Const. art. 8, § 11; 3 R. S. 2111, 2120; 80 N. Y. 311.) The town has capacity to receive a gift which will assist it in discharging its municipal functions. (People v. N. R. S. R. Co., 121 N. Y. 582; In re Fox, 52 id. 530; Le Couteulx v. City of Buffalo, 33 id. 333; Ketchum v. City of Buffalo, 14 id. 360; Vail v. L. I. R. R. Co., 106 id. 283; Webb v. Neal, 87 Mass. 575; Beach v. Haynes, 12 Vt. 15; State v. Woodward, 23 id. 92; Castleton v. Langdon, 19 id. 210; Sargent v. Cornish, 54 N. H. 18; Worcester v. Eaton, 13 Mass. 371; 2 Dillon on Mun. Corp. [4th ed.] § 566.) The legacy to the town does not create a írust; it is an absolute gift for a specific purpose. (Riker v. Leo, 115 N. Y. 103; Sutton v. Cole, 20 Mass. 232; In re Fox, 52 N. Y. 538; Vail v. L. I. R. R. Co., 106 id. 283; Williams v. Williams, 8 id. 536; Wetmore v. Parker, 52 id. 459; Levy v. Levy, 33 id. 117.) If this is a bequest Jor charity in the ordinary sense, the town still has capacity to jake and dispense the fund. (Holland v. Alcock, 108 N. Y. 312; Perin v. Carey, 24 How. [U. S.] 465; Vidal v. Girard, 2 id. 127; Mayor, etc., v. Elliott, 3 Rawle, 170; Bell County v. Alexander, 22 Tex. 350; Chambers v. St. Louis, 29 Mo. 543; Webb v. Neal, 87 Mass. 575; 2 Dillon on Mun. Corp. [4th ed.] §§ 567-572; 1 Perry on Trusts [4th ed.] § 43.) The legacy is valid, even though it he construed to create a trust. (Gilman v. McArdle, 99 N. Y. 456; Holmes v. Mead, 52 id. 344; Robert v. Corning, 89 id. 225; Webb v. Neal, 87 Mass. 575; Downing v. Marshall, 23 N. Y. 382; Beekman v. Bonsor, Id. 318; Prichard v. Thompson, 95 id. 76; Holland v. Alcock, 108 id. 312; In re Bennett, 113 id. 522.) The provisions of the will work an equitable conversón of the real estate into personalty. (Power v. Cassidy, 79 N. Y. 602; Phelps v. Pond, 23 id. 69; Delafield v. Bartow, 107 id. 535; Asche v. Asche 113 id. 232; Burrill v. Boardman, 43 id. 260; Vankleek v. Dutch Church, 20 Wend. 457; Parker v. Linden, 113 N. Y. 28; Chamberlain v. Taylor, 105 id. 185.) The town could not lawfully apply this legacy to any other uses than the support of the poor. (Benson v. Whittam, 5 Sim. 22; Byne v. Blackburn, 26 Beav. 41; Biddles v. Biddles, 16 Sim. 1; Berkeley v. Swinburne, 6 id. 613; Jones v. Greatwood, 16 Beav. 527; Hart v. Tribe, 18 id. 215; Thorp v. Owen, 2 Hare, 607; Clarke v. Leupp, 88 N. Y. 228.) The limitation of the use of the fund if valid, does not create a trust. (B. P. Comrs. v. Armstrong, 45 N. Y. 234; People v. Albany, 4 Hun, 675; K. C. F. Ins. Co. v. Stevens, 101 N. Y. 411; Gilman v. McArdle, 99 id. 451; Smith v. Edwards, 88 id. 102.)</p>

A ppeal from a judgment entered in the court of oyer and terminer of Kings county, upon the verdict of a jury convicting the defendant of murder in the first degree. The opinion of the court of appeals upon a prior appeal is given at page 149 of this volume. The facts sufficiently appear in the opinion of the court.

The facts, so far as material, are stated in the opinion. The referee was unable to give a good marketable title to the premises. (Moore v. Williams, 115 N. Y. 598; Vought v. Williams, 120 id. 253; Shriver v. Shriver, 86 id. 584; Fleming v. Burnham, 100 id. 9; In re Trustees, etc., 31 id. 588; McPherson v. Smith, 49 Hun, 254; Fry on Spec. Perf. [2d ed.] §§ 573, 576, 579, 580, 583, 585; Pom. on Cont. §§ 198, 202, 203, 205; Waterman on Spec.

This action was Drought to have an assessment upon plaintiff’s property for a sewer in the boulevard between Ninety-second and One Hundred and Sixth streets in the city of New York, declared void, and to recover back the amount paid by her on account thereof. The payment was voluntary and the money cannot be recovered.

The nature of the action and the facts, so far as material, are stated in the opinion. The plaintiffs have not shown that the assessment confirmed in lSJ! was illegal. (Goszler v. Georgetown, 6 Wheat. 593; In re Hebrew Asylum, 70 N. Y. 476; In re Bassford, 50 id. 512; In re Williamson, 3 Hun, 65-68; In re Gantz, 85 N. Y. 536, Bigelow v. Boston, 120 Mass. 826; In re Folsom, 56 N. Y. 60.) The payment was voluntary, and the money cannot be recovered.

The facts, so far as material, are stated in the opinion. The right to take or destroy property without making compensation, is based upon the maxim publica solus summa lex. It is justified only by immediate and urgent necessity, and .continues only so long as the pressing necessity continues. (A. P. Works v. Lawrence, 23 N. J. L. 624; In re Jacobs, 98 N. Y. 107; Mills on Em.

which reversed a judgment in favor of defendants entered upon the report of a referee and granted a new trial. The nature of the action and the facts, so far as material, are stated in the opinion. Questions of law only are or can be here for review. (Code Civ. Pro. §§ 993, 1337, 1338.) An appellate court will not set aside or reverse the findings of a trial court on a question of fact unless manifestly •against or contrary to evidence.

December 3, 1868, Phoebe T. Drew and John G. Drew, her husband, of Elizabeth, New Jersey, executed their bond conditioned for the payment to plaintiff of $4,000, one year-from the date thereof, and as collateral security therefor, at the same time, executed to the plaintiff a mortgage on certain premises in Elizabeth, New Jersey.

<p>In an action of ejectment, plaintiff claimed title under a foreclosure sale. It appeared that the judgment of foreclosure was rendered May 11,1852. and a referee appointed to sell the premises, which were situated in the city of Brooklyn, at a piase named in the city of New York.' In July. 1867, said judgment not having been executed and said referee having died, on motion of plaintiff therein an order was granted appointing another referee to execute the decree and modifying the same by providing that the sale should take place in Brooklyn. The papers upon which the motion was made were served upon the attorneys who appeared for 8. the only defendant in the foreclosure, who put in an appearance therein, and said' attorneys admitted due and timely service. Held, that it was a matter within the discretion of the court whether or not to require a personal service on S.; that the admission of the attorney ■was prima, facie evidence of authority to make it, and so that the court acquired jurisdiction; and that the modification of the decree was not material and was within the power of the court to make.</p> <p>Decrees of courts of equity, otherwise than for the payment of money, do not expire by reason of the passage of any number of years, and whether they will be enforced after a long time has elapsed, is a question for the court to decide upon a consideration of all the facts, and its decision upon such a question is not generally appealable to this court.</p> <p>An order may be made, after the entry of a decree of foreclosure, providing for carrying out the same after the death of the defendant mortgagor, without reviving the action against his heirs or representatives.</p>

<p>Appeal from judgment of the General Term of the Superior Court of the city of New York, entered upon an order made May 6, 1889, which affirmed a judgment in favor of defendant entered upon an order dismissing the complaint on trial.</p>

This action was brought for the specific performance of a written contract, an accounting and the appointment of a receiver.

Appeals from judgments of the General Term of the City-Court of Brooklyn, entered upon orders made January 28, 1889, which affirmed judgments in favor of the plaintiffs entered upon decisions of the court on trial at Special Term. These were actions of ejectment to recover certain lands in the city of Brooklyn to which plaintiffs claimed title through sales for taxes under chapter 114 of the Laws of 1883.

<p>In an action to recovei damages to plaintiff's premises caused by the maintenance and operation of defendants’ road, the defendants claimed upon appeal to this court that the premises being in the possession of tenants under plaintiff, he could not maintain the action. Ho such defense was pleaded, nor was the question in any manner raised upon the trial. Meld, that the point could not be considered here.</p>

<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 modified and affirmed as modified a judgment in favor of plaintiff entered upon a verdict.</p>

<p>Appeal from judgment of the General Term of the Superior Court of the city of Buffalo, entered upon an order made January 8, 1889, 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>Appeal from judgment of the Court of General Sessions of the Peace in and for the city and county of New York, rendered March 4, 1890, upon a verdict convicting; defendant of the crime of murder in the first degree.</p>

<p>Appeal from judgment of the Court of General Sessions of the Peace in and for the city and county of Hew York, entered June 18, 1890, upon a verdict convicting the defendant of the crime of murder in the first degree.</p>

<p>Appeal from judgment of the General Term of the Superior Court of the city of New York, entered upon an order made • April 7, 1890, which affirmed an order and interlocutory judgment of the Special Term, sustaining a demurrer to the complaint.</p>

<p>Appeal from judgment of the General Term of the Supreme Court in the fourth judicial department, entered upon an order made April 30, 1889, wliicji affirmed a judgment in favor of plaintiff entered upon a verdict directed by the court.</p>

<p>Appeal from judgment of the General Term of the Supreme Court in the second judicial department, entered upon an order made May 9, 1887, which affirmed a decree of the surrogate of Putnam county upon a judicial settlement of the accounts of the petitioners, as administrators, etc., of the estate • of Freeman Sprague, deceased.</p>

<p>Appeal from judgment of the General Term of the Supreme-Court in the second judicial department, entered upon an order made May 14, 1890, 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 vacate and set aside two deeds-on the ground of fraud and undue influence.</p>

This action was brought to recover damages for the killing-of plaintiff’s intestate, Mark Sutherland, through the alleged negligence of -defendant’s employes. It appeared that said intestate had been a locomotive-engineer in defendant’s employ for three years; that on August. 1, 1883, he left Troy in charge of a locomotive drawing freight train Mo. 1, thirty minutes late.

<p>Appeal from judgment of the Court of Sessions in and for the county of Rings, entered upon a verdict convicting the defendant of the crime of murder in the-first degree.</p>

The complaint alleged in substance that in 1863, plain tifiA firm owned 167 bales of cotton in Texas; that in November of that year said firm entered into a contract with defendant and one Kingsbury, whereby they “ jointly and severally ” agreed to sell the cotton, and after deducting twenty-five percent of the proceeds for their services, account for and pay over the balance to plaintiffs firm; that on a sale of the cotton they received $23,684.50, which they appropriated…

This action was brought to recover back moneys paid by plaintiff to defendant as part of the purchase-price of a house and lot contracted to be sold by the latter to the former. Plaintiff claimed there was a defect in the title offered by defendant. The premises in question formed part of the residuary estate of Thomas H. Geraty, deceased, and the questions discussed depended for their solution upon the construction to be given to certain provisions in the will.

This action was brought to recover a deposit with the corporation defendant to the credit of one Henry Fitzsimmons, the bank-book for which plaintiff, a niece of the depositor, claimed he had given to her as a donatio causa mortis.

<p>Appeal from judgment of the General Tenn of the Supreme Court in the fifth judicial department, entered upon an order made the first Tuesday of June, 1890, which affirmed a judgment in favor of defendant entered upon a decision of the court on trial at Special Term.</p>

<p>A'substantial compliance with the statute prescribing the formalities to be observed in the execution of wills is sufficient.</p>

<p>■TJpou trial of an action to recover for professional service, after the plaintiff rested, the defendant moved to dismiss the complaint, which was granted. The referee then ’ made a report in which he stated that the defendant, at the close of plaintiff’s evidence, moved to dismiss plaintiff’s claim on the ground of no employment, and that he granted the motion and plaintiff excepted. He then made formal findings of fact and law and plaintiff excepted. Held, that the decision was in fact a nonsuit, and although the referee might properly, upon the evidence, have determined the case in favor of defendant, yet as there was some evidence to sustain it, the court erred in holding, as matter of law, that plaintiff had utterly failed to establish a cause of action.</p>

This action was brought to recover damages for a breach of warranty alleged to have been made on sales of tallow purchased of the defendants hy Eoswell H. Meagley, the original plaintiff, the present plaintiff’s testator, a soap manufacturer. After trying five barrels, which were sent as a sample and found to be pure, defendant used large quantities of other tallow.

This action was brought to recover damages for the alleged negligent killing of plaintiff’s intestate, a longshoreman, who was killed while engaged with others in loading defendant’s vessel with grain.