Volume 127 — New York Reports

<p>Appeal from order of the General Term of the Supreme Court in the second, judicial department, entered upon an order made December 8, 1890, which affirmed an order of the Surrogate’s Court of Dutchess County.</p> <p>The nature of this proceeding and the facts, so far as material, are stated in the opinion.</p>

In April, 1881, the state built an iron bridge over the Champlain canal in the village of Fort Ann. The planks of each panel were supported by eight pine stringers, three inches thick and eleven and one-half inches wide, resting on needle beams. The ends or bearings of the stringers were but ten inches in width, and in September of that year they were, in some of the panels, reduced to five inches in width so as to diminish the grade of the bridge.

This action was brought to enforce a trust. The complaint alleged the appointment of the plaintiff as receiver of the Produce Bank, the discount by that bank, prior to January 24, 1880, of certain notes for the firm of B. H. Decker & Co., contractors for the construction of the ¡Riverside Drive; that said bank held as security certain liens upon the amount to become due from the city of Bew York for said work; that on the day last named Bichólas H. Decker, a member of said…

The plaintiffs, partners doing business in the firm name of W. H. Crossman & Bro., in the city of Hew York, about the 1st of May, 1888, sold and delivered to the defendant, a corporation of the state of Hew York, a quantity of goods at the price of $9,309, for which the defendant gave them its three promissory notes of May 5, 1888, payable to the order of the plaintiffs. This action was brought upon the one of them made for $3,166.61, payable at four months.

<p>Appeal from judgment of tlie General Term of the Supreme C-ourt in the third judicial department, entered upon an order made July 6, 1889, which affirmed a judgment in favor of the plaintiff, entered upon a verdict.</p> <p>This action was brought to recover damages for personal injuries suffered by the plaintiff and alleged to have been occasioned by the negligence of the commissioner of highways of the defendant.</p> <p>It appeared that on the evening of May 4, 1888, the plaintiff, in a Frazer cart, drawn by a horse driven by him in Main street, in the village of Ticonderoga, ivas thrown out and injured. He ivas going southerly, and after crossing a bridge over the outlet of Lake George, he pulled a little to the right, the horse sprang to the left, the wheel struck something on the right and the left wheel locked into and went over the wheel of another vehicle going north. He ivas thrown out to the right. Upon the street near the right sidewalk at that place was a road scraper used for working highways. It ivas an apparatus having four wheels,- was upward of four feet in width and, exclusive of the pole, something more than seven feet in length. The end of the pole or tongue was ninety feet from the bridge, and the north end of the body of the scraper Avas eleven feet further south. The Avidtli of the- roadway of the bridge Avas eighteen and one-lialf feet, divided into two tracks by a partition timber in the center; the Avidtli of the street for ninety feet south of the bridge continued about the same, and there it commenced to widen and continued to do so until it reached the width of sixty-six feet. The evidence tended to prove that at the place where the body of the scraper Avas the distance betAveen the sidewalks Avas about thirty feet, but the divergence of the outer line was on the east side only.</p> <p>Further facts appear in the opinion.</p>

<p>In an action to recover damages for injuries received by plaintiff, a passenger upon defendant’s elevated railroad, in alighting from one of its cars, by Slipping between the platform of the car and that of the station, plaintiff claimed that defendant had so negligently constructed its road .as to leave a space between the platform and its cars greater than was necessary for the operation of the road. Plaintiff was allowed to prove, under objection and exception, the happening of similar accidents at other stations upon said road, without giving evidence tending to show that the conditions were similar. Held (Vann, J., dissenting), error.</p> <p>It seems that the evidence would have been competent if evidence had been first adduced tending to show that the conditions were similar.. Boyce v. Manhattan B. Oo. (118 N. Y. 814), distinguished.</p>

<p>While the mortgagee of chattels is deemed to be the owner and has the right to reduce them to possession, the mortgagor has the right to redeem before sale orto receive the surplus, if any, that shall arise upon a sale.</p> <p>This interest is assignable and passes, under a general assignment for the benefit of creditors, to the assignee.</p> <p>While the commencement of an action in the nature of a creditor’s bill creates a lien upon the choses in action and equitable assets of the judgment debtor, it does not create a lien upon his tangible personal property subject to levy under execution, unless the creditor procures the appointment of a receiver.</p> <p>A creditor can only avail himself of the omission to file a chattel mortgage when he has a judgment and proceeds under it to obtain a lien upon the mortgaged property, either by the levy of an execution or the commencement of an action in which he obtains the appointment of a receiver.</p> <p>In an action to set aside a general assignment for the benefit of creditors and two chattel mortgages executed by the assignors, it appeared that the assignment was recorded on the same day, but after the filing of said chattel mortgages; one of them was executed about a year and nine months, the other about eleven months before they were filed. The assignment preferred a debt to one of said mortgagees and stated that she held the mortgage as collateral security, subject to the other mortgage which was prior thereto. The assignors delivered to the assignee all the property, including that covered by said mortgages, and in the inventory and schedules subsequently filed stated that the debts of said mortgagees were secured by said mortgages, and the chattels described in them were covered by them. The court found that the mortgages and assignment were made in good faith, without any intent to hinder, delay or defraud the creditors of the assignors. Plaintiff claimed that the mortgages were void, not having been filed as required by the statute, and that as the assignment treated them as valid, it was fraudulent. Held, untenable; that considering the mortgages were void as to creditors, as between the mortgagors and mortgagees, they were valid and subsisting liens, and whatever interest the mortgagors had passed under the assignment to the assignee; and that plaintiffs having neglected to avail themselves of the means provided by statute for the payment of their claims until the mortgagors had transferred their interest to the assignee, the latter acquired a superior right and took the interest in trust for all the creditors.</p>

<p>Appeal from judgment of the General Term of the Oity Court of Brooklyn, entered upon an order made January 28, 1889, which affirmed a judgment in favor of the plaintiff, ■entered upon a verdict directed by the court.</p> <p>This action was in ejectment and to recover damages for an alleged wrongful withholding of real estate in the city of Brooklyn.</p> <p>The plaintiff claimed title through a tax sale under the act (Chap. 114, Laws of 1883) known as the Arrearage Act.</p> <p>Further facts are stated in the opinion.</p>

This is an action to restrain the defendant, the city of Buffalo, from confirming, 'collecting or enforcing a local assessment for paving Fillmore avenue in said city and to restrain all of the defendants from entering or continuing upon said avenue for the purpose of paving the same.

<p>Appeal from judgment of the General Term of the Supreme Court in the third judicial department entered upon an order made May 7, 1889, which affirmed a judgment in favor of defendant entered upon a decision of the court on trial at Circuit without a jury.</p> <p>The nature of the action and the facts, so far as material, are stated in the opinion.</p>

This was a proceeding instituted by the district attorney of the city and county of Few York, to compel the administrator of the estate of one Worthington Romaine, deceased, to pay taxes upon certain collateral inheritances, pursuant to chapter 483 of the Laws of 1885, as amended by chapter 713 of the Laws of 1887.

Xppeal from judgment of the General Term of the Supreme Court in the third judicial department, entered upon an order made September 24,1890, which affirmed a judgment in favor of jilaintiffi entered upon a verdict and affirmed an order denying a motion for a new trial.

This was an action by executors for the construction of a will. The testator, Samuel Green, a resident of this state, died December 9, 1889, leaving a last will and testament dated March 25, 1880, and a codicil thereto, dated May 23, 1888. By the first clause of said will, he directed his executors to pay his debts and funeral charges as soon after his decease as they conveniently could. The second clause is in these words: “ Secondly.

<p>While, where the signature of a party to a written instrument appears attire end thereof, in the usual way in which such instruments are signed, the legal presumption arises that the signature was written for the purpose of finally executing the instrument, in the absence of a signature' at the end of the instrument, no such presumption arises from the fact that the name appears written by the party in the body of the instrument.</p> <p>A writing was presented for probate as the will of B. At the time of her' death she resided in New Jersey. It was written by the testatrix, and commenced with her name, but was not signed at the end by her. It contained no attestation clause, but was signed by two witnesses. There was no evidence tending to show that, at the time the witnesses signed-, the testatrix directly or indirectly, by word or gesture, referred to her' name in the first line of the instrument as her signature. No act of hers was proved from which it could be inferred that the name written there was intended to be in execution of a completed will; it was proved, however, that she said to one of the witnesses: “ This is my will, take it and sign it.” The New Jersey statute provides that wills must be “in writing, and shall be signed by the testator, which signature shall be made by the testator, or the making thereof acknowledged by him, and such writing declared to be his last will and testament in the presence of two witnesses at the same time, who shall subscribe their names thereto as witnesses in the presence of the testator.” Held, that conceding the common-law rule prevails in New Jersey, under which, if a person writes his name in the body of a will with intent to execute it in that manner, the signature is as valid as if subscribed at the end, the-burden was upon the proponents of showing that the name was so written with that intent; that the evidence was insufficient to sustain a finding that such was the intent; and that probate of the instrument was properly refused.</p> <p>In re Higgins (94 N. Y. 554); In re Phillips (98 id. 267); In re Hunt (110 id. 278), distinguished.</p>

The action was brought for the determination of the amount due upon a mortgage of date December 24, 1884, made by Stillman P. Lincoln to Asa W. Parker, upon a certain parcel of land divided into fourteen lots in the city of Brooklyn for $14,000, with a view to redemption of the premises and to require contribution to that end by the several owners of the lots covered by the mortgage.

This was an action to restrain defendant from manufacturing and selling a certain patented article and to recover damages sustained by his manufacture and sale thereof.

This was an action to recover the sum of $800 alleged by the plaintiffs to he due them from the defendant upon the sale of a quantity of lumber.

<p>Appeal from judgment of the General Term of the Supreme ■court in the first judicial department, entered upon an order made July 16, 1889, which affirmed a judgment in favor of defendant entered upon a decision of the court on trial at Special Term.</p> <p>This action was brought by the plaintiffs as successors of the firm of Street & Smith, against the defendant as survivor ■of the firm of J. S. Ogilvie & Co., to set aside as fraudulent a certain settlement made between the plaintiffs and defendant in reference to royalties agreed to be paid by J. S. Ogilvie & ■Co., under an agreement with the predecessors of the plaintiffs. Prior to, and at the time of the agreement providing for the ■payment of royalties, Francis S. Street and Francis S. Smith formed the copartnership of Street & Smith in publishing a newspaper known as The Hew York Weekly.</p> <p>Street was also a member of the firm of J. S. Ogilvie Co. The agreement entered into was as follows:</p> <p>“ This agreement made and entered into the 16th day of September, 1880, between Messrs. Street & Smith of New York, parties of the first part, and J. S. Ogilvie & Co., of the same place, parties of the second part, by which the said parties of the first part agree to allow the said J. S. Ogilvie & Oo. topnblish and sell certain stories, which shall have been mutually agreed upon, in book form.</p> <p>“ In consideration of the privilege of the exclusive publication and sale of said books, the said J. S. Ogilvie & Co., agree to pay Messrs. Street & Smith, a royalty of twenty cents per volume for all copies sold, the retail price of which shall be §1.50, and the same amount in proportion for any books published under this agreement, the said price of which shall be-more or less than §1.50, provided that the cost of making the electrotype plates of said books shall be paid by Messrs. Street & Smith, in all other cases the royalties shall be ten per cent on the retail price. The payment of royalties to be made quarterly unless by mutual consent.</p> <p>“ STEEET & SMITH,</p> <p>“J. S. OGILVIE & CO.”</p> <p>Street died in April, 1883, the plaintiff Ormond G. Smith-succeeding to his interest. And a new firm was organized which continued the business in the old firm name.</p> <p>Subsequent to July 2, 1883, Street & Smith, demanded of the defendant a statement of the stories published under the agreement, and the royalties due thereunder, and in compliance therewith a statement was rendered, which bore date September 1, 1883.</p> <p>On the 22d of September, 1883, Street & Smith and the defendant settled their accounts respecting the matters embraced within such statement, the latter paying royalties up to July 1, 1883, the firm of Street & Smith at the same time giving him a receipt in full.</p> <p>In the fall of 1883 Street & Smith, made a claim of the> defendant for royalties, upon certain stories published in another series. This claim the defendant disputed, upon the ground that such publications were not books, and, therefore, not included in the royalty agreement, and the plaintiffs threatening to commence an action, it was agreed that the defendant should pay $1,600, in settlement, which was done; the plaintiffs at the same time executing a release therefor. Ho objection was made by Street & Smith, to the settlement, until the commencement of this action, nearly five years thereafter, and since that time the defendant has accounted to the firm of Street & Smith, as then existing, and to their successors, under the royalty agreement semi-annually, and paid royalties shown to be due by such accounts, the payment being accepted without objection until the commencement of this suit.</p> <p>Further facts appear in the opinion.</p>

This action was brought to recover an indebtedness claimed to be due plaintiffs from the firm of Holler & Merz, the original defendants, of whom the present defendant is the survivor. The facts, so far as material, are stated in the opinion.

This was an action of replevin, begun October 18, 1886, to recover a quantity of hay, oats and straw grown in that year by a tenant on a farm owned by the plaintiff, which, in April, 1884, was leased with stock, in which the landlord and tenant were jointly interested, for an annual rent of $960, payable in monthly installments of eighty dollars each. The tenant,.

This action was brought to recover one equal undivided eleventh part of certain lands described in the complaint.

This action was brought to recover rent of rooms on the second floor in plaintiff’s building occupied by the officers and agents of defendant. The occupation was under these circumstances : The defendant had prior to March 1, 1875, occupied certain rooms in plaintiff’s buildings at the agreed annual rent of $700, payable .semi-annually on May first and November first in each year.

<p>Appeal from judgment of the General Term of the Supreme Court in the second judicial department, entered upon ah order made June 28, 1889, which affirmed a judgment of the County Court of Kings county in favor of the plaintiff, entered upon the report of a referee.</p>

<p>As to lands temporarily taken, the statute does not begin to run until the state has ceased to use the lands.</p> <p>.Where, therefore, a decision of the Board of Claims awarding nothing on a claim filed in January, 1871, for lands permanently and temporarily appropriated by the state in 1867, on the ground that the Statute of Limitations was a bar, contained no description of the land appropriated, and did not state the facts as required by statute (§§ 4, 8, 11, chap. 205, Laws of 1883, as amended by chap. 60, Laws of 1884), and the evidence did not show how much land the state claimed to have appropriated, either permanently or temporarily, and it appeared that the lines showing the permanent appropriation were first partially established in 1868, but not completed until in 1870, and it did not appear when, if ever, the lines were established on the claimant’s land, but it appeared that the construction of the canal was still in progress at the time of the hearing upon the claim, held, the evidence failed to show that the quantity of land permanently appropriated had been determined and described or marked out, or that the state had ceased to occupy the land temporarily appropriated for more than a year before the filing of the claim; and so, that the award was erroneous.</p>

<p>Appeal from judgment of the General Term of the Supreme Court in the second judicial department, entered upon an order made May 16, 1889, which affirmed a judgment in favor of defendants, entered upon the decision of the court on trial at Special Term, sustaining a demurrer to the plaintiff’s complaint.</p> <p>The nature of the action and the facts, so far as material, are stated in the opinion.</p>

<p>■ The General Term has jurisdiction to review the conclusions of a trial court, both upon the facts and the law, and its determination, where it arrives at an opposite conclusion, may not be reversed here unless, upon examination, this court determines that there was such a preponderance of evidence in favor of the conclusions of the trial court as would have constituted error of law for it to have found otherwise.</p> <p>Under the provision of the act of 1862 (Chap. 482, Laws of 1862, as amended by chap. 422, Laws of 1863), providing “for the collection of demands against ships and vessels, ” which declares that ‘ ‘ whenever a debt * * * shall be contracted by the master, owner, charterer, builder or consignee -of any ship or vessel * * * within this state * * * on account of work done, or materials or other articles furnished in this state towards the building * * * such ship or vessel, * * * such debt shall be a lien upon such vessel,” unfinished vessels are subject to a lien ior work done and materials furnished towards building them.</p> <p>Terry-boats are within the term "vessels ” as used in said act.</p> <p>'When materials are furnished for and used in the construction of two vessels being built for the same party at the same time and place, a lien is given by the said act upon both, and it may be enforced in the same proceeding.</p> <p>' "Where a foreign corporation, upon orders of a firm of ship builders in this state, delivered to the latter, at their place of business in this state, certain materials to be used in the construction of two ferry-boats, and which were so used, held, that the debt was contracted when the goods were delivered to the purchasers, and so was contracted within this state within the meaning of the act.</p> <p>The terms of sale were cash on delivery; the purchasers, without any consultation or arrangement with the vendor, mailed to it their firm notes for the amount of the purchases, payable at times beyond the six months’ limit fixed by statute, and so when the lien created by the act would have expired, the vendor accepted the notes, supposing the purchasing firm to be solvent. It was in fact, to the knowledge of its members, insolvent, and prior to the making of the notes, other notes of the firm had been protested. The next day said firm sold and transferred the ferry-boats •and all the materials in their yard to the corporation for whom they were building them, agreeing to go on and finish the boats, and deliver them freed from any lien. About a month thereafter said firm made a general assignment for the benefit of creditors. Held, that the evidence justified a finding that said firm mailed said notes with intention not to pay the same, and with the fraudulent design, by the extension of time of payment, to discharge the lien; that the fraud relieved the vendor from the extension of credit the notes purported to create; and so, that it was entitled to enforce its lien.</p>

<p>Where, by the terms of a mortgage, the mortgagee covenants to release a portion of the mortgaged premises upon payment of a specified portion of the sum secured, a tender of the amount specified is not available, in an action to foreclose the mortgage, as a basis for affirmative relief, i. e., the release of the portion specified, unless the tender has been kept good and the money paid into court.</p> <p>Kortright v. Cady (21 N. Y. 843), distinguished.</p> <p>Heported below, 52 Hun, 269.</p>

which reversed a judgment in favor of defendant, entered upon a decision of the court on trial at Special Term and granted a new trial. The nature of the action and the facts, so far as material, are stated in the opinion.

<p>Appeal from judgment of the General Term of the Superior Court of the city of Hew York, entered upon an order made June 28, 1889, which affirmed a judgment in favor of plaintiffs entered upon a verdict and affirmed an order denying a motion for a new trial.</p> <p>This was an action for a breach of contract.</p> <p>The facts, so far as material, are stated in the opinion.</p>

<p>Appeal from judgment of the General Term of the Superior Court of the city of Hew York, entered upon an order made July 1, 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>The nature of the action and the facts, so far as material, are stated in the opinion.</p>

<p>A freeholder cannot be deprived of his land under the taxing power of the state, unless the procedure prescribed, construing strictly the statute, is substantially complied with.</p> <p>Under the provisions of the title of the New York Consolidation Act (|§ 945, 946, chap. 410, Laws of 1882), in relation to sales of land for taxes, assessments and water rates, requiring “the grantee or the person claiming under Mm, in order to complete his title ” to land conveyed by the city comptroller under a tax sale, to filé with the clerk of arrears an affidavit of service upon the owner and occupant of notice to redeem, and directing the comptroller, in case he shall be satisfied by the affidavit that the notice has been duly served, if the moneys required for redemption have not been paid, to certify to the fact “ under his hand and seal,"’ and declaring that “the conveyance shall thereupon become absolute,” the comptroller’s certificate in the form prescribed is a condition precedent to the vesting of title in the grantee or a claimant under him. A certificate, to be effectual to transfer the title, must be sealed as well as signed by the comptroller, and the seal must be affixed by the comptroller who signed it.</p> <p>Where, therefore, in an action of ejectment in which defendant claimed under a comptroller’s deed on sale of the land for unpaid taxes, it appeared that a certificate in due form was signed by the comptroller, but was not sealed; that after the expiration of his term of office, and before any attempt to redeem had been made, his successor caused a seal to be affixed to the certificate, held, that defendant had acquired no title. Reported below, 53 Hun, 15.</p>

<p>Appeal from judgment of the General Term of the Supreme Gourt in the first judicial department, entered upon an order made May 24, 1889, which affirmed a judgment in favor of plaintiff entered upon the report of a referee.</p> <p>The nature of the action and the facts, so far as material, are stated in the opinion.</p>

The purpose of the action was to perpetually enjoin the defendant from casting the sewage from what was known as the Harrison street sewer on the premises of the plaintiffs; and to recover damages for the injury alleged to have resulted to them from such cause.

The defendant is the successor of the Hew York, West Shore and Buffalo Railway Company, a corporation which, prior to the commencement of this action, had constructed a railroad along the west shore of the Hudson river, partly upon and partly in front of lands owned by the plaintiff. The plaintiff was the owner of a farm in the town of Marlborough, Ulster county, bounded on the east by the Hudson river and extending from the Orange county line northerly 4,000 feet.

From June, 1888, to April 29, 1889, Henry Erdtmann and Gustave Varrelmann were partners engaged in business at Hos. 252 and 254 Pearl street, Hew York, under the firm name of “ W. & H. Erdtmann.” April 29, 1889, they confessed judgment in favor of George E. Varrelmann (the father of Gustave Varrelmann) for §7,824.62, which was entered and docketed in the office of the clerk of the city and county of Hew York, at twenty-six minutes past twelve o’clock of that day, and on the…

<p>Where, in an equity action, no objection was made by the answers to the-maintenance of the action on the ground that the plaintiff had an adequate remedy at law, but, on the contrary, the defendants demanded equitable relief, held, that it was too late to take the objection on the-trial.</p> <p>Under the provisions of the Revised Statutes (1 R. S. 346, § 20), providing for the filing of a collector’s bond and the entry thereof by the county clerk “in the same manner in which judgments are entered of record,” and declaring that every such bond “ shall be a lien on all the real estate held jointly or severally by the collector or his sureties,” the lien so created is a general one, having no greater force than the lien of a judgment, and a prior unrecorded mortgage is entitled to priority over the bond.</p> <p>It was not within the contemplation of the statute, before the passage of the act of 1887 (Chap. 372, Laws of 1887), requiring such bonds to be recorded, that they should be within the protection of the Recording Act, and the fact that the supervisor, who filed a bond prior to that time, at the time of filing requested it to be recorded in the book in which mortgages, or securities in the nature of mortgages, were required to be recorded, does not affect its status as a lien.</p> <p>In an action in equity to enforce the lien of such a bond upon the real estate of í¡\, one of the sureties, it appeared that he was the president, cashier and general manager of a bank in which the collector deposited the avails of taxes collected ; the latter had on deposit sufficient to pay, and delivered his check against his account for the amount due the county treasurer, to F., who agreed to transmit the amount to said. treasurer; this he failed to do. The bank continued business forty-four days after the delivery of the check, when it closed its doors, and its assets passed into the hands of a receiver; meanwhile F. became insolvent. Held, that while, in the absence of proof that the bank ever paid, the collector could not have maintained an action against F., and •so had no right, as against him, to which the co-surety with F. could be .subrogated; yet as F., from his official position, knew the financial condition of the bank, and could have obtained from it the moneys to pay •the county treasurer as agreed and thus have satisfied the bond, in omitting to do this, he failed to discharge a duty he owed the collector and his co-surety; and so, that as against F., the co-surety was entitled to have the lien of the bond enforced out of real estate of F.; and that it was properly charged with the whole amount.</p> <p>Also held, that the equity of the co-surety was superior to that of a subsequent mortgagee and grantee of F., the consideration for whose deed and mortgage was simply an antecedent debt.</p> <p>li seems, that in an action to foreclose the lien of a collector’s bond upon the real estate of the sureties, in the absence of circumstances rendering the property of one of them chargeable with the whole amount in the first instance, the decree should direct that the lands of each be first made available to secure the payment of one-half.</p> <p>Where, however, the equities between the sureties are such as would prevent one of them, in case of payment, from maintaining an action for contribution against his co-surety, or from successfully resisting an effort by the latter, in case of payment by him, from obtaining a judgment against the former for the full amount, a decree is proper charging his real estate in the first instance with the whole amount.</p> <p>It seems, the filing and entry of the bond, as required by the statute, is notice to all subsequent purchasers of the existence of a lien on the real estate of each surety, enforceable for the full amount of any default on the part of the principal, and while one surety has a right of action against his co-surety for contribution, he is liable to be defeated if, by reason of his neglect or misconduct, the co-surety would be injured by a judgment compelling contribution.</p> <p>'The filing and entry of the bond is, therefore, not simply notice to a subsequent purchaser of land charged with the lien thereof, that it is liable only with a proportion of any liability accruing thereon, but he is put upon inquiry to ascertain as to the equities between the co-sureties.</p> <p>Also held, that a provision in the decree authorizing the subsequent grantee and mortgagee to redeem within the period provided by statute for the redemption of lands sold on execution, was error.</p> <p>‘The right to redeem lands from sale exists only when given by statute, and while the lien created by the filing and entry of a collector’s bond is a general one, with no greater effect as against prior unrecorded conveyances than a judgment, it is not a judgment lien, or enforceable by sale under execution, and the provision of the Code of Civil Procedure, authorizing redemption from sales under executions (§ 1446), does not apply.</p> <p>Reported below, 53 Hun, 143.</p>

<p>Appeal from order of tlie General Term of the Supreme-Court in the third judicial department, made September 9, 1890, which reversed a judgment in favor of the plaintiff,, entered upon the report of a referee and granted a new trial.</p> <p>The nature of the action and the facts, so far as material, are stated in the opinion.</p>

<p>In an action against the city to recover for injuries caused by a fall on the sidewalk of one of its streets, plaintiff testified that at the time of the accident the sidewalk was covered with a glare of ice its entire width for a distance of five feet and to within a foot of the building; that she stepped upon it, and after walking about three feet fell. Evidence was given tending to show that ice had been upon the walk for about three weeks prior to the accident; that three days before there was rain, snow and sleet, and on the morning of the preceding day the temperature was below zero; that defendant’s superintendent had been seen to pass over this sidewalk ten or twelve days before; and again about a week before. The superintendent, as a witness for plaintiff, testified that he had passed through the street several times before the accident, but did not remember the dates; that when he did there was ice upon the sidewalk the same as on every other one in the city, which was covered with ashes on the part on which people traveled. The court granted a motion for a nonsuit. Held, no error; that1 the evidence failed to show any knowledge on the part of the superintendent as to the condition of the sidewalk after the rain, sleet and freezing had rendered it dangerous.</p> <p>Reported below, 53 Hun, 202.</p>

<p>Appeal from judgment of the General Term of the Supreme Court in the second judicial department, entered upon an order made the second Monday of May, 1890, which affirmed a judgment in favor of plaintiffs entered Upon an order confirming the report of a referee.</p> <p>The nature of the action and the facts, so far as material, are stated in the opinion.</p>

The cause of action stated in the complaint herein is substantially that the defendant, a religious corporation, was a depositor in plaintiff bank and kept an account therein from which it drew out and deposited moneys arising from receipts of money by defendant and proceeds of discounts for defendant, and that the defendant drew out an excess of $3,428.25 over its deposits, and further, that the plaintiff on November 1, 1886, received from defendant a certain promissory…

The action was brought to recover $5,000 and interest thereon which the plaintiff asserts the defendant held in trust for him pursuant to the terms of the following agreement: “Resolved, That the street commissioner be and he is hereby authorized and directed to make a contract for lighting all the streets, avenues, roads, squares, parks, public buildings and places of the city of Hew York with coal gas.

<p>Appeal from judgment of the General Term of the Supreme ■Court in the second judicial department, entered upon an ■order made June 28, 1889, which affirmed a judgment in favor of plaintiff entered upon an order of Special Term ■confirming the report of a referee.</p> <p>This was an action for the foreclosure of a mortgage.</p> <p>The facts, so far as material, are stated in the opinion.</p>

order of the General Term of the City Court of Brooklyn, made April 22, 1889, which reversed a judgment entered upon a verdict in favor of plaintiff and granted a new trial. This was an action to recover damages for injuries received, by plaintiff through the alleged negligence of 'defendant. The facts, so far as material, are stated in the opinion..

<p>Appeal from judgment of the General Term of the Supreme Court in the fourth judicial department, entered upon an order made April 11888, which affirmed a judgment in favor of plaintiff entered upon a verdict directed by the court.</p> <p>The nature of the action and the facts, so far as material, are stated in the opinion.</p>

<p>The abandonment and discontinuance by the state of certain portions of the Chenango canal under and pursuant to the act of 1877 (Chap. 404 of the Laws of 1877) as amended in 1878 (Chap. 844, Laws of 1878), did not release the state, so far as the portion so abandoned is concerned, from the liability imposed upon it by the act of 1870 (Chap. 321, Laws of 1870), for damages sustained by individuals caused by negligence of the state officials.</p> <p>The canal and its appurtenances, notwithstanding the abandonment, remained the property of the state, and it was the legislative intent to continue the control of the superintendent of public works over the abandoned portions until disposed of as authorized by the act.</p> <p>The provision of said act of 1877 (§ 18) to the effect that no person shall have any claim against the state for or by reason of such abandonment, has reference only to damages incident to the discontinuance.</p> <p>Where, therefore, after the abandonment, plaintiff was injured by the fall of a farm bridge previously constructed by the state over the abandoned portion of the canal, and upon the hearing of a claim for the 'injury, it appeared that at the time of the injury such portion including the bridge still belonged to the state, and that the accident was caused by the negligence of the state officials in using an unsound timber in the construction of the bridge, held, that the state was liable.</p>

<p>Brown v. Knapp (79 H. T. 136), distinguished.</p>

This action was brought to enforce, as to alimony and costs, a decree of the Court of Chancery of ¡New Jersey, dissolving the previously existing marriage relation between the plaintiff and defendant, and awarding costs, counsel fees and alimony to the plaintiff.

This action was upon a guaranty by the defendant to pay for certain goods sold by the plaintiff to a third party. The plaintiff is a paper manufacturer at Springfield, Massachusetts, having a sales office in the city of Hew York in charge of an agent. On May 14, 1886, he agreed to sell to the firm of Dikeman & Co. ten cases of paper at fifteen and one-half cents per pound, upon a credit of three months, provided they would furnish him a satisfactory guarantor.

<p>Appeal from judgment of the General Term of the Supreme Court in the fifth judicial department in favor of defendants, entered November 21,1889, upon a verdict directed subject to the opinion of the court at General Term.</p> <p>This was an action of ejectment.</p> <p>On October 12, 1854, John Sweeney died, leaving Caroline Sweeney, his widow, and several collateral relatives who were his heirs at law and next of kin. He left a will executed October 9, 1854, which was probated December 26, 1854, and letters testamentary were then duly issued thereon to the two executors nominated therein, who immediately entered upon the execution of their trust and continued therein until 1856, when one of them died, and thereafter the survivor discharged the duties imposed by the will on both executors. In the first division of the will the testator devised two village lots to his wife in fee, and a life estate in a farm of sixty acres and the stock thereon in lieu of dower.</p> <p>In the second division the testator provided: “ Second. I hereby direct and authorize my executors hereinafter named to sell and convey to the New York Central Railroad Company a certain strip of land (described) * * * on condition and in consideration that the said railroad company fulfill the agreement and contract made by them with the heirs of James Sweeney.</p> <p>“ I also desire and authorize my executors to sell and convey all that part of block F on the Biagara river (particularly described) * * * and it is my desire that the said land shall be sold in a body for commercial purposes.” Then follows in this division thirteen specific devises, and also a devise of the remainder of the sixty-acre farm subject to the life estate of the wife. Bear the end of the will, and in the second division, is the following provision: “ I authorize and direct my executors to sell and convey (the land directed to be sold for commercial purposes), and also that piece of land on Sweeney street east of the building known as the shoe shop, for the purpose of discharging all my debts.” The will contained no residuary clause, and makes no disposition of the testator’s personal estate, nor of the avails of the two pieces of real estate directed to be sold, unless used in payment of debts. The testator also died seized of four other parcels of land, worth about $3,500, which were not disposed of by his will. January 27, 1855, the surviving executor sold and conveyed to the testator’s widow the land in block F for $500, at which time the executor and widow knew that after payment of all debts and expenses of administration there was a surplus of more than $1,200 arising from the personal estate. On the 10th of March, 1874, this action of ejectment was begun by the testator’s heirs at law against Caroline Sweeney to recover possession of the lot purchased by her. Subsequently Mrs. Sweeney died, leaving a will which was admitted to probate, and her executors were substituted as parties defendant in her stead.</p> <p>Further facts appear in the opinion.</p>

For shipment and transportation to East St. Louis, Illinois, J. H. Shanley & Co. caused to be delivered to the defendant and the latter received potatoes at the time, places and in the quantities following: April 18, 1881, at Prescott, Canada, 401 bushels; April 18, 1881, at Edwardsburgh, Canada, 812 bushels ; April 18, 1881, at Brockville, Canada, 400 bushels ; April 20, 1881, at Brockville, Canada, 400 bushels ; April 26, 1881, at Kingston, Canada, 402 bushels.

<p>Appeal from judgment of the General Term of the Supreme Court in the first judicial department, entered upon an order made J uly .9, 1889, which affirmed a judgment in favor of plaintiffs, entered upon the decision of the court on trial at Special Term. .</p> <p>This was an action by the plaintiffs, claiming to be the equitable owners of a policy of fire insurance, to restrain the insurer from paying the amount of a loss to the insured or to his alleged assignee.</p> <p>On the 21st of April, 1886, the Horwich Union Fire Insurance Society, a corporation organized under the laws of Great Britain, with agencies in Hew York, Iowa and other states, issued the policy in question to one Bartlett on his stock of goods at Muscatine, Iowa. The policy was countersigned by the agent of the company at that place. Three days later Bartlett, who resided at Muscatine, sent the policy by mail to the plaintiffs, who resided in the city of Hew York, as collateral security to a loan of $2,000 concurrently made to him by them. The policy, as written, was payable to Bartlett only and it was never assigned to the plaintiffs. July 3, 1886, the property insured was destroyed by fire, and on the sixteenth of August following Bartlett made an absolute assignment of the policy to one Kelly of Muscatine aforesaid.</p> <p>This action was commenced against the insurance company .and Bartlett by the due service of process in this state upon the former, August 12, 1886, and on the latter about one month later. The company answered, alleging, among other defenses, a defect of parties defendant, in that said Kelly, although a necessary party to the action, had not been joined. March 12, 1887, Kelly commenced an action at law in a court of the state of Iowa to recover from the insurance company the sum of $2,000, the amount of the policy, with interest from July 3, 1886. March 15, 1887, on motion of the company, an order was made by the Supreme Court of this state in this action requiring said Kelly to be made a defendant therein, and that he be brought into court by a supplemental summons. A supplemental summons and complaint were issued accordingly, and the same were served on Kelly in the state of Iowa pursuant to an order of publication based upon an affidavit alleging that “ the defendant S. Gf. Kelly claims to have property in the state of ¡New York, to wit, an interest in the insurance policy ” in question. ¡No service was made upon Kelly within this state, and he did not appear in the action. The insurance company, by its answer to the supplemental complaint, pleaded the pendency of the action in the Iowa court; that Kelly was a necessary party and that the Supreme Court had by its order directed that he be brought in as a party defendant, and demanded judgment that the complaint be dismissed “ unless said S. Gf. Kelly be brought in so as to be bound by any judgment herein.”</p> <p>These facts appeared upon the trial of this action, where Kelly’s default was noted, and were in substance found by the trial judge, who also found that Kelly had no interest in the policy “superior to that of the plaintiffs; * * * and that the alleged assignment * * * by the defendant Bartlett to said S. Gf. Kelly, of the date August 16, 1886, * * * was void, and in no wise affected the prior interest obtained by the plaintiffs in said policy on or about the 24th day of April, 1886.”</p> <p>Judgment was directed restraining the insurance company from paying any money under said policy to Bartlett or Kelly, and although there was neither allegation nor evidence of any proof of loss as required by the terms of the policy, the defendant company was ordered “to pay to the plaintiffs such moneys as shall be found to be payable under and by virtue of ” said policy of insurance.</p>

<p>Appeal from order of the General Term of the Supreme ■Court in the second judicial department, made May 13, 1889, which affirmed an order of Special Term confirming the award of commissioners appointed under the act chapter 445, Laws of 1877, as amended by chapter 490, Laws of 1883, to assess the damages caused by the diversion of the water of the Bronx river from certain lands of Charles Butler.</p> <p>The facts, so far as material, appear in the opinion.</p>

<p>Appeal from order of the General Term of the Supreme Court in the first judicial department, made November 23, 1888, which reversed a judgment in favor of plaintiffs, entered upon the decision of the court on trial without a jury, and ordered a new trial.</p> <p>The nature of the action and the facts, so far as material, are stated in the opinion.</p>

This was an action to recover the' sum of $5,000 as stipulated damages for breach of covenant On the 15th of October, 1884, the defendant owned a cheese factory situate in the town of Monroe, Orange county, comprising two parcels of land with the buildings thereon and a quantity of fixtures, machinery and tools connected therewith.

ourt in the second judicial department, entered upon an order made September 9, 1889, which affirmed a judgment in favor of plaintiff entered upon a verdict. The nature of the action and the facts, so far as material, are stated in the opinion.

The action was ejectment brought to recover the possession of two lots of land situate at Mount Yernon, Westchester county, by the plaintiff McCracken alleging ownership. The answer alleged ownership in defendants and possession by them as such owners.

The plaintiff and his assignors were patrons of the defendant’s factory, where they and others delivered milk to he manufactured into cheese and butter, marketed and the proceeds deposited by him for them respectively at a stipulated compensation. This was done by the defendant up to October 28, 1883, when the factory was destroyed by fire, and a quantity of. milk, butter and cheese thereby lost.

• On October 7, 1884, the plaintiffs recovered in the City Court of New York against the Syracuse Iron Works, a corporation having its place -of business at the city of Syracuse, a judgment for $1,798.38, which was docketed in Onondaga county and execution issued upon it delivered to the sheriff of that county the day following.

<p>Under the provision of the Revised Statutes (1 R. S. 600, § 1, subd. 5), authorizing corporations “to appoint such subordinate officers and agents as the business of the corporation shall require,” the board of trustees of a manufacturing corporation may appoint an executive committee of its members, and invest it with power to transact the business of the- company during the interval between the meetings of its board of trustees.</p> <p>Such committee may delegate to one of its number power to do merely ministerial acts, such as the indorsing of checks payable to the corporation and receiving the money thereon.</p> <p>Reported below, 52 Hun, 575.</p>

This action was brought to partition certain lands of which Palmer H. Curtis died seized. Said Curtis'left him surviving a widow and four daughters, two of whom are the plaintiffs in this suit. He left a last will and testament and a codicil thereto, that have been duly admitted to probate, by which he undertook to make a testamentary disposition of the lands in controversy in such manner as to prevent the plaintiffs from receiving any portion of the principal of his estate.

This was an action to foreclose a mechanic’s lien. On May 25,1887, the defendant owned in fee land in the city of Mew York extending from One Hundred and Twenty-seventh to One Hundred and Twenty-eighth streets, and bounded on the east by Madison avenue and on the west by a line drawn parallel with and thirty-five feet west of the avenue.

<p>Appeal from order of the General Term of the Supreme Court in the third judicial department, made July 2, 1888, which reversed a judgment in favor of plaintiff entered upon the report of a referee and granted a new trial.</p> <p>The nature of the action and the facts, so .far as material, are stated in the opinion.</p>

This was an action to procure the cancellation of a satisfaction of a judgment upon the ground that it was obtained by fraud and for other relief. The material facts appear in the opinion.

This action was brought to partition certain lands devised by the eighth clause of the last will and testament of Hazard Lewis, which reads as follows: “All the rest and residue of my estate, whether real or personal, of every name, kind and description, and wheresoever situate, after the payment of my just debts and funeral and testamentary expenses, I give, devise- and bequeath to my said wife Maria, and to my said daughters'Jane E. Drake and Caroline L. Paige, and to my…

<p>While it seems the governing body of a city cannot delegate to others the power to perform acts which relate to the government of the city, it may, in the absence of any restriction in its charter, delegate to a committee or agent the power to perform merely business acts, such as making purchases or doing work.</p> <p>A municipal corporation may be bound upon an implied contract, within the scope of the corporate powers, made by its agents and to be deduced from corporate acts, without the vote of the governing body, unless the contract be one which the charter or law governing the corporation requires should be made in a particular manner.</p> <p>A corporation is liable upon a quantum meruit when it has enjoyed the benefit of work performed or goods purchased, where no statute forbids or limits its power to make a contract therefor.</p> <p>In an action to recover for goods sold and delivered to defendant, a municipal corporation, it appeared that the city hall having been destroyed by ■fire, its common council passed a resolution, which was duly approved by the mayor, authorizing one of its committees “ to set apart and fit up rooms for the use of the city officers ” left without office rooms by reason of the fire. The trial court found in substance that said committee, in fitting up said rooms, in pursuance of said resolution, ordered the goods in question, and that the common council duly ratified and confirmed the acts pursuant to which plaintiff’s claim was contracted. It did not appear that defendant’s charter limits the power of the common council to make such purchases, or provides that contracts therefor shall be made in a particular manner. Held, that plaintiff was entitled to recover; that the power to make the purchases could be delegated by defendant’s common council to a committee.</p> <p>It seems that in such case where it appears that work and material have been actually ordered by the common council and the city has had the full benefit thereof, without objection from any of its officers, very slight evidence is sufficient to support a finding that any irregularities in the committee’s action have been waived and their general acts ratified.</p> <p>Reported below, 53 Hun, 206.</p>

<p>Money in the hands of an assignee for the benefit of creditors, the avails of the property assigned, is not subject to levy under an attachment issued in an action against the assignor, and a sheriff making such a levy is liable for conversion.</p> <p>Plaintiff, as assignee for the benefit of creditors, sold and converted the assigned property into money, which he deposited in a bank in his own name. The defendant B., as sheriff, undertook to levy upon such money, under an attachment in an action against the assignors. Defendant S., an under-slieriff, at the direction of the sheriff, called upon plaintiff and demanded a surrender of the money under the attachment. Plaintiff thereupon drew the money from the bank, placed it upon a table and told S. that was the money, but he forbade his taking it; S. took it. In an action for conversion thereof, defendants claimed that the transaction was in effect a voluntary payment, and consequently the money could not be recovered back. Held, untenable.</p>

This action was to recover $1,000 paid by Jacob L. Fruhauf to the defendant upon a contract between them whereby the defendant agreed to convey to said Fruhauf by warranty deed certain real estate on Eighth avenue in the city of Few York, and also to recover damages for the breach of said contract.

<p>A municipality may not empty its sewers upon private property, without-acquiring the right so to do.</p> <p>A paroi license that the sewage from a particular district may he discharged upon private property does not authorize the discharge thereon of the sewage from a much larger territory.</p> <p>When a municipal corporation discharges or threatens to discharge sewage from the outlet of a permanent sewer directly upon private lands without having acquired the right so to do, the owner, is entitled to the judgment of a court of equity restraining the injury, committed or threatened; he is not confined to a recovery of his damages in actions of. trespass.</p> <p>Upon trial of an action to restrain defendant, a municipal corporation; from discharging sewage upon lands of a railroad company, it was assumed in the questions to and answers of the witnesses that the lands so occupied were owned by the- company, and in the resolutions of defendant’s common council relating to the matter; said lands were referred to as belonging to said' company. The question of title was not raised on the trial, and no motion was made to dismiss the complaint on the ground that the company had failed to establish title, and no requests to find such fact were made. The court found: that the; com-pony owned the land, and defendant excepted. Held, that defendant could not raise the objection on appeal that plaintiff failed to establish a title, except such as is presumed from possession.</p>

■ Appeal from judgment of the General Term of the Supreme Court in the second judicial department, entered upon an order made June 28,1889, which affirmed a judgment in favor of plaintiff entered upon a decision of the court on trial without a jury. This was an action to recover damages for creating a nuisance, and to restrain its further continuance.

This action was brought to recover $1,240 claimed to be due under a contract, and $846.75 for extra work thereunder.

Appeal in each of the above-entitled, actions from an order of the General Term of the Supreme Court in the third judicial department, made July 6, 1889, which reversed a judgment in favor of plaintiff, entered upon the report of a referee. Each action was based on a policy of fire insurance issued by the defendant against whom it was brought, upon a quantity of charcoal belonging to the plaintiff.

The plaintiff, by contract with Purple Gardner, agreed to sell and convey to the latter certain premises in Schoharie county for $1,800. Afterwards, on March 11, Í884, the plaintiff received $1,000, made deed of conveyance to Gardner and took from him his bond for $800, the balance of the purchase-money, secured by mortgage on the premises. This action was brought to foreclose that mortgage.

This action was brought to annul, for alleged fraud, an agreement between the parties as to the disposition of partnership assets and for an accounting. The trial court found the fraud as alleged, and the only questions here, save as to the allowance of interest, were as to whether there was evidence to sustain the finding, and as to whether plaintiff had lost by delay the right to rescind, both of which were determined in favor of plaintiff.

which affirmed a judgment in favor of plaintiff, and affirmed an order denying a motion for a new trial. This action was brought to recover damages for an alleged breach of contract to ship a quantity of ice.

<p>Appeal from judgment of the General Term of the Supreme Court in the fifth judicial department, entered upon an order made April 17, 1886, which affirmed a judgment in favor of defendants entered upon a decision of the County Court.</p>