Volume 129 — New York Reports

order made on the first Tuesday of January, 1891, which affirmed a judgment in favor of plaintiffs, entered upon a decision of the court on trial at Special Term. The plaintiffs in this action were, at the time of the commencement thereof, judgment creditors of the defendant Louis P. Beck, and they brought the action against him, and William H. Beck and IT.

This was an action of partition. The defendants Christian Fey and Louise Fey are husband and wife, and in 1882, they bought the premises described in the complaint, each contributing to the purchase-money from his and her own property.

Appeal by Fannie J. Byrnes, as assignee of the judgment rendered in this action, from order of the General Term of the Supreme Court in the first judicial department,' made January 16, 1891, which affirmed an order of the Special Term granting a perpetual stay of proceedings. The nature of the proceeding and the facts, so far as material, are stated in the opinion. The alleged discharge in bankruptcy granted to the respondent does not bar the appellant’s claim.

The nature of the proceedings and the facts, so far as material, are stated in the opinion. The- court had no power to make the allowance in question. (McLean v. Freeman, 70 N. Y. 89 ; Atty.-Genl. v. N. A. L. Ins.

The nature of the action and the facts, so far as material, are stated in the opinion. To entitle one to an injunction, there must be such a similarity of designation on the part of defendant as would be likely to mislead purchasers. (Browne on Trade-marks, § 547; Snowden v. Noah, Hopk. Ch. 396; Bell v. Lock, 8 Paige, 74; Talcott v. Moore, 6 Hun, 106; Hier v. Abrahams, 82 N. Y. 519.) Laches on the part of the plaintiff is clearly shown in this case.

judgment in favor of plaintiff entered upon a decision of the court on trial without a jury. This action was brought to compel defendant to reconvey to defendant certain premises in the city of Rochester and to recover the value of the use and the rental value thereof from •January 24, 1878, the date when defendant took possession of the same. ' The facts, so far as material, are stated in the opinion. The two written instruments must be read and construed as one contract.

The orders of the Special and General Terms being based on a denial of power, are appealable. (Tilton v. Beecher, 59 N. Y. 176 ; Eq. L. Assn. v. Stevens, 63 id. 341; Tolman v. S. B. & N. Y. R. R. Co., 92 id. 383.) The court erred in holding it had not the power or authority to grant an order to compel a personal examination of the plaintiff.

This action was brought by plaintiff as executor of the last will and testament of Thomas Cornell, deceased, a stockholder of the Eondout and Kingston Gas Light Company, to restrain said company from consolidating with the Kingston Electric Light, Heat and Power Company. The material facts are stated in the opinion. The injunction was unauthorized, because it does not appear from the complaint that the plaintiff is entitled to the final relief for which the action is brought.

<p>Appeal from judgment of the General Term of the Superior Court of the city of Hew York, entered upon an order made March 26, 1891, which modified, and affirmed as modified, a judgment in favor of plaintiff entered upon a decision of the ■court on trial at Circuit.</p> <p>This was an action upon a contract by which defendant agreed to pay one-half the expense of a party-wall erected by plaintiff between their adjoining premises' in the city of Hew York. The facts, so far as material, are stated in the opinion.</p> <p>There was a disputed question of fact, and it should have been submitted to the jury. (Sinclair v. Talmadge, 35 Barb. 602; Glacius v. Black, 50 N. Y. 148 ; Phillips v. Gallant, 62 id. 264; Fiedder v. Darrin, 50 id. 437; Thurston v. Cornell, 38 id. 281; Bayliss v. Cockroft, 81 id. 371; Forbes v. Waller, 25 id. 430; Woodward v. Fuller, 80 id. 312; Noah v. Whitney, 88 id. 648.) Defendant could not avoid using the wall. (Kingsland v. Tucker, 115 N. Y. 578; Laws of 1887, chap. 566.) The amendment to the building law could not invalidate the contract. (Laws of 1882, chap. 410, §§ 476,477.) The defendant claimed that the plaintiff agreed to build a party-wall, and then defined a party-wall to be one which stood equally on both lots and was alike in all particulars on each side of the dividing line. He also claimed that any departure from this definition defeated the plaintiff’s claim. The court erred in adopting this definition and contention. (Fettretch v. Leamy, 9 Bosw. 521; Washb. on Real Prop. [4th ed.] 605; 2 id. 385; Rogers v. Sinzheimer, 50 N. Y. 645.) The wall sustaining the beams of both houses is a party-wall, whether it stands equally upon the two lots or otherwise. (Rogers v. Sinzheimer, 50 N. Y. 645.) The questions asking the opinion of the witness if the wall was capable of substantially similar use by Mr. Jordan as by Mr. Hammann should not have been allowed. (People v. Augsburg, 97 N. Y. 501; Ferguson v. Hubbell, Id. 507; Tracy Peerage Case, 10 C. & F. 191; Winans v. N. Y. & E. R. R. Co., 21 How. [U. S.] 101; People v. Kemmler, 119 N. Y. 584; Glacius v. Black, 50 id. 148 ; Flaherty v. Miner, 123 id. 382; Parke v. F. A. T. Co., 120 id. 56.)</p> <p>There was no conflict of evidence as to the character of the wall, and the trial court did not err in dismissing the complaint. (Appleby v. A. F. Ins. Co., 54 N. Y. 260; Lomer v. Meeker, 25 id. 361; Glacius v. Black, 67 id. 568 ; Caggar v. Lansing, 64 id. 417; Corning v. T. I. & N. Factory, 44 id. 577; Nourendorff v. W. M. L. Ins. Co., 69 id. 389.) The wall that plaintiff built partly on defendant’s land was not, as a matter of law, a party-wall, consequently the plaintiff has not complied with the first conditions of the agreement on his part and, therefore, could not recover. (Fettretch v. Leamy, 9 Bosw. 525 ; 1 Washb. on Easements [4th ed.], 602; Van Syckel v. Tryon, 6 Phil. 401; St. John v. Sweeney, 59 How. Pr. 175 ; Daly v. Grimly, 49 id. 520; Nash v. Kemp, 48 id. 522; 2 Pars. on Cont. [7th ed.] 675 ; Glacius v. Black, 50 N. Y. 148.) As the wall built by plaintiff was not the wall he had agreed to build, the defendant had a right to make any use he saw fit of the part of the wall on his land without incurring any liability to plaintiff. (Sherred v. Cisco, 4 Sandf. 480 ; Partridge v. Gilbert, 15 N. Y. 601; Orman v. Day, 5 Flo. 385.) Defendant, having the right to use the wall without incurring any liability to plaintiff, cannot be said, by using it, to have waived his objections to it; nor can any such waiver be argued from the fact that many years elapsed before defendant sought to use the wall, or discovered its defects. (Sherred v. Cisco, 4 Sandf. 480; Laws of 1887, chap. 566, § 5 ; Laws of 1882, chap. 410, § 476 ; Kingsland v. Tucker, 115 N. Y. 574; Shaw v. Hitchcock, 119 Mass. 284.) The trial court erred in awarding an allowance to the plaintiff upon the amount of defendant’s counterclaim after having dismissed the complaint, and such award was properly overruled by the General Term. (Downing v. Marshall, 37 N. Y. 380; Code Civ. Pro. § 3253; Devlin v. Mayor, etc., 15 Abb. [N. S.] 31; Thayer v. Holland, 63 How. Pr. 179 ; Whitlegge v. De Witt, 12 Daly, 319 ; Crane v. Holcomb, 2 Hilt. 271; Ury v. Wilde, 15 Civ. Pro. Rep. 451.)</p>

The facts, so-far as material, are stated in the opinion. The court erred in deciding that the lands in question were not exempt from taxation. (Laws of 1887, chap. 133, § 10.) The legal conclusions of the court below evidently were based upon the finding of fact in respect of advertising and procuring the consent of the board of supervisors; such finding was not only unsupported by any evidence but it would be immaterial if it were established.

Special Term. This action was brought to restrain the further maintenance and operation of defendants’ elevated railroad in front of plaintiff’s premises in the city of Hew York, and to recover damages suffered in consequence thereof. 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. Plaintiffs cannot recover for any interference by defendant with the use or enjoyment of the .property in question or of the easements appurtenant thereto, because during the period sued for they did not have the right to such use and enjoyment.

This action was originally brought against the individual members of the firm of Parsons & Loud, shipping and commission merchants in New York city. Loud having died pending the litigation, the action was continued against Parsons as survivor. Said film procured in March, 1884, for the owners of the bark “ Elliott Ritchie, ” a charter, upon which they claimed a commission of $341.63.

Appeals from judgment of the General Term of the Supreme Court in the first judicial department, entered upon an order made May 29, 1890, which affirmed a judgment 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.

, and laying a sewer, etc., in a portion of South Pearl street, in the city of Albany. The facts, so far as material, are stated in the opinion. The county judge had jurisdiction of the proceeding. (Laws of 1883, chap. 298, §§ 1-3; Endlich on Statutes, §§ 286, 287; People v. Tibbetts, 4 Cow. 384; In re Tracy, 59 Barb. 525 ; In re Ford, 6 Lans. 92 ; In re Bevans, 17 How.

The nature of the action and the facts, so far as material, are stated in the opinion. The action on the attachment bond is no bar to tins action. (People v. Dennison, 84 N. Y. 273; DeGraaf v. Wyckoff, 118 id. 1; Stowell v. Chamberlain, 60 id. 272; Sweet v. Tuttle, 14 id. 465.) The judgment in the action tried before the referee is not a bar to the maintenance of this action, nor was the commencement of that action a waiver of the right to bring this action.

The nature of the action and the facts, sd far as material, are stated in the opinion. Plaintiff had no ■cause of action against the defendant the Dry Dock, East Broadway and Battery Railroad Company. (Alexander v. R., etc., R. R. Co., 38 N. Y. S. R. 254; Fleckenstein v. D. D., etc., R. R. Co., 105 N. Y. 655; Donnelly v. B. C. R. R. Co., 109 id. 21; Fenton v. S. A. R. R. Co., 36 N. Y. S. R. 385; 126 N. Y. 625.) The omission of the car driver to stop was not negligence.

<p>Appeal from judgment of the General Term of the Court of Common Pleas for the city and county of ¡New York, entered upon an order made April 20, 1891, which reversed a judgment in favor of plaintiff, entered upon a decision of the court on trial at Special Term, vacated an injunction 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>The ordinance of the .common council was valid. (Laws of 1882, chap. 410, § 86 ; Laws of 1813, chap. 86; Laws of 1870, chap. 137; Laws of 1875, chap. 335; Laws of 1888, chaps. 37, 214; Laws of 1872, chap. 150, § 33 ; Laws of 1885, chap. 26; Laws of 1886, chap. 84; Laws of 1890, chaps. 55, 58, 64; Laws of 1891, chap. 380; King v. Gallun, 109 U. S. 99; Brown v. Piper, 91 id. 37; Terhune v. Phillips, 99 id. 592; Phillips v. Detroit, 111 id. 604; Slater v. Jewitt, 85 N. Y. 61, 68; E. C. & B. Co. v. Avery, 83 id. 31, 34; In re L. & W. O. Home, 92 id. 116, 119; Hume v. Mayor, etc., 74 id. 264; Laws of 1873, chap. 335 ; People v. Charbineau, 115 N. Y. 433.) The intention of the statute should be ascertained and carried out. (Bishop on Written Laws, §§ 64, 156; Suth. on Stat. Const. § 217; McKenna v. Edmunstone, 91 N. Y. 231; Churchill v. Crease, 5 Bing. 178; State v. Goetz, 22 Wis. 363; Felt v. Felt, 19 id. 193; People v. Quigg, 59 N. Y. 83; People v. Palmer, 52 id. 83; People ex rel. v. McClave, 99 id. 83; .Laws of 1873, chap. 335, § 17; Laws of 1884, chap. 455.) The power granted to the common council to “ regulate the use of streets for awnings, awning-posts,” etc., carries with it the power to authorize such use upon compliance with the regulations adopted. (Cronin v. People, 82 N. Y. 318; State v. Clarke, 54 Mo. 17.) The awning if authorized may be maintained. ( Uline v. R. R. Co., 101 N. Y. 98, 107; Hinchman v. Patterson, 17 N. J. Eq. 75, 77; Commonwealth v. Houck, 11 Wkly. Notes, 539, 540.) The structure was an awning. (Salisbury v. Howe, 87 N. Y. 128; Hume v. Mayor, etc., 47 id. 639; Hawkins v. Sanders, 45 Mich. 491, 492; Jessen v. Swiegert, 66 Cal. 182; Pedrick v. Bailey, 12 Gray, 161.) Plaintiff was entitled to maintain the awning. (People v. B. & O. R. R. Co., 117 N. Y. 150; In re Zborowski, 68 id. 88.) The use to which the awning is devoted, is peculiarly a public one. (State v. Budd, 26 N. Y. S. R. 533; Allen v. Sackrider, 37 N. Y. 341.) A general ordinance of a common council or department of a municipality does not confer a vested right to the exercise of the license or permission for all time. (Kingstand v. Mayor, etc., 110 N. Y. 569, 577.) It cannot be claimed that the awning was, or is a public nuisance, or an actual incumbrance or obstrúction to public travel. (O'Leary v. Board of Education, 93 N. Y. 1, 5.) If the awning was erected under due authority, and does not, as matter of fact, unreasonably encumber or obstruct the sidewalk, the threatened removal by force would be a wrongful and unlawful act on the part of the defendants. (People v. Canal Board, 55 N. Y. 390 ; Davis v. Am. Society, 75 id. 362 People v. Dwyer, 90 id. 402.)</p> <p>This-action is brought against- two public officers to restrain them from performing a public duty which the law imposes upon them, and cannot be maintained. (Laws of 1882, chap. 410, §§ 317, 324; Davis v. Am. Society, 75 N. Y. 362; High on Injunction, § 1270 ; Negus v. Dwyer, 90 N. Y. 402; Morgan v. City of Binghamton, 102 id. 505.) At common law, any encroachment or obstruction on a public highway was an indictable nuisance. (Rex v. Cross, 3 Camp. 224; Rex v. Jones, 3 id. 230; People v. Vanderbilt, 28 N. Y. 396; Hart v. Mayor, etc., 9 Wend. 571; Moore v. Jackson, 15 Abb. [N. C.] 211, 214, 215; Trenor v. Jackson, 15 Abb. Pr. [N. S.] 115; Farrell v. Mayor, etc., 5 N. Y. Supp. 580, 672; Lavery v. Hannigan, 21 J. & S. 463; Ely v. Campbell, 59 How. Pr. 333, 335; People ex rel. v. Mayor, etc., Id. 277; People ex rel. v. Mayor, etc., 18 Abb. [N. C.] 123; Hallock v. Schreyer, 33 Hun, 111; McCaffrey v. Smith, 41 id. 117; Callanan v. Gillman, 107 N. Y. 365; Emmons v. Campbell, 22 Hun, 582; People ex rel. v. Newton, 20 Abb. [N. C.] 387; Kiernan v. Newton, Id. 398; Davis v. Mayor, etc., 14 N. Y. 524; People v. Thompson, 98 id. 6.) The common council have no power conferred upon them by the Consolidation Act (Laws of 1882, chap. 410, § 86) to authorize the construction and maintenance of this structure. (Hume v. Mayor, etc., 74 N. Y. 264; Pedrich v. Bailey, 12 Gray, 16; Howe v. Peckham, 6 How. Pr. 229 ; Laws of 1884, chap. 455; Laws of 1888, chap. 37; Laws of 1871, chap. 574, § 99 ; People v. Mallory, 64 How. Pr. 281; Kingsland v. Mayor, etc., 110 N. Y. 579; People v. B. & O. R. R. Co., 117 id. 150; Rex v. Jones, 3 Camp. 230; Dillon on Mun. Corp. § 89 ; People v. T. A. R. R. Co., 112 N. Y. 406; Trenor v. Jackson, 15 Abb. Pr. [N. S.] 124; People ex rel. v. Mayor, etc., 59 How. Pr. 277; Milhau v.Sharp, 27 N. Y. 611, 622 ; Dartmouth College v. Woodward, 4 Wheat. 519; People v. Sturtevant, 9 N. Y. 273; C. L. R. Co. v. City of Savannah, 30 Fed. Rep. 648; Fletcher v. Peck, 6 Cranch, 87.) The public streets are held by the city " in trust, nevertheless, that the same be appropriated and kept open for and as part of a public street, etc., forever.” (People v. Kerr, 27 N. Y. 188; Story v. N. Y. E. R. R. Co., 90 id. 122.) The claim that this shed should be allowed to stand for the advantage of the public is ivithout force. (Rex v. Russell, 6 East. 420; Callanan v. Gilman, 107 N. Y. 365; People v. Horton, 64 id. 610; Vernon v. Vestry, etc., L. R. [16 Ch. Div.] 149.) The legislature has no constitutional right to authorize the appropriation of public property to a private use. (Kane v. E. R. R. Co., 34 N. Y. S. R. 877; Trenor v. Jackson, 15 Abb. Pr. [N. S.] 115.)</p>

This was an action to enforce the specific performance of a contract entered into by plaintiffs, a firm of lawyers, and defendants, who were without means, whereby the plaintiffs-agreed to conduct certain proceedings and suits of a complicated character, to pay the expenses and, so far as was in their power, to carry them to a successful and final issue and recovery, they to receive upon settlement or recovery of said claims-“fifteen per centum of such settlement or recovery…

This was an action for the foreclosure of a mortgage upon certain real estate in the city of New York. Defendant Bauer interposed as a counter-claim an alleged breach of a covenant on the part of plaintiff. On August 3, 1887, plaintiff was seized of the mortgaged premises. A street railroad had laid its tracks upon a portion thereof accidentally and without any claim of title, such encroachment having grown out of uncertainty as to the lines of an unopened street.

This was an action of ejectment. The facts, so far as material, are stated in the opinion. The Jones and Weatherby lot conveyed by Phebe M. Bunting to the plaintiff never had .any riparian rights. (People ex rel. v. Jones, 112 N. Y. 597; 39 N. Y. S. R. 642; Beach v. Mayor, etc., 45 How. Pr. 357; Rumsey v. N. Y. & N. E. R. R. Co., 114 N. Y. 423 ; K. I. Co. v. Shultz, 116 id. 382.) The grant of land under water to plaintiff is void upon its face.

<p>Appeal from judgment of the General Term of the Supreme Court in the third judicial department, entered upon an order made Movember 25, 1890, which affirmed a judgment in favor of plaintiff entered upon the report of a referee.</p> <p>This action was brought by plaintiff, as treasurer of the Local Assembly Mo. 4120 of the Knights of Labor, which was alleged .to be an incorporated association, to recover upon the following instrument:</p> <p>“ Amsterdam, M. Y., Nov. 26, 1886.</p> <p>“ I, undersigned, promise to pay, 6 months after date, the sum of $500, which was received by the Local Executive Board, K. of L., from Excelsior Assembly 4120, K. of L., to Excelsior A. 4120, or their treasurer.</p> <p>“E. II. MONTH AM.</p> <p>“ JOI-IM STACK.”</p> <p>.Said assembly was an unincorporated association formed in pursuance of wliat is called a warrant and charter, issued by the General Assembly of the Knights of Labor. It was shown that on May 26, 1887, a circular letter was issued by the general executive board stating that they had revoked tills charter. Further facts appear in the opinion.</p> <p>The paper upon which this- action was brought is void by the Statute of Frauds, it being by its terms to answer for the debt, default or miscarriage of another, no consideration being expressed in the instrument itself. (4 R. S. [8th ed.] 2590, § 2; Castle v. Beardsley, 10 Hun, 343; Drake v. Seaman, 96 N. Y. 230; Barney v. Forbes, 118: id. 580; Chaffee v. Thomas, 7 Cow. 358; Parker v. Bradley, 2 Hill, 584; Considerant v. Brisbee, 14 How. Pr. 487; Draper v. Snow, 20 N. Y. 331; Knox v. Nutt, 1 Daly, 213; Clark v. Hampton, 1 Hun, 612; Brewster v. Silence, 8 N. Y. 207; Hill v. Blake, 97 id. 216; Bristol v. Warner, 19 Conn. 7; Jeffries v. Hager, 18 Mo. 272.) The referee erred in holding, as matter of law that the plaintiff was the real party in interest and could maintain this action as treasurer of Local Assembly No. 4120 of the Knights of Labor. (Code Civ. Pro. § 1910; Schmidt v. Gunther, 5 Daly, 452; Belton v. Hatch, 109 N. Y. 598; Hyde v. Woods, 94 U. S. 523.) Local Assembly No. 4120, or the plaintiff, might have brought an appeal to the general assembly but did not, and expressly waived the right to do so. Remedies provided for in the constitution should first be exhausted before resorting to courts of law. (Lafond v. Deems, 81 N. Y. 514; Chamberlain v. Lincoln, 129 Mass. 70; Fisher v. Raab, 57 How. Pr. 87.) The legal effect of the unreversed action of the general executive board was to deprive the plaintiff and her associates as Knights of Labor of the title to the note in suit. (Austin v. Searing, 16 N. Y. 112 ; Watson v. Jones, 13 Wall. 679; Belton v. Hatch, 109 N. Y. 593; Grosvenor v. U., etc., Co., 118 Mass. 78; Lloyd v. Loaring, 8 Ves. 773; Hyde v. Woods, 2 Saw. 655; 94 U. S. Rep. 523; Poultney v. Bachman, 31 Hun, 49; McKane v. Adams, 51 id. 629; White v. Brownell, 2 Daly, 329; People v. Young, 65 Barb. 357; Snow v. Wheeler, 113 Mass. 179 ; Thompson v. Adams, 12 Phila. 484; Ebbeighousen v. Worth Club, 4 Abb. [N. C.] 301; Robinson v. Yates City Lodge, 86 Ill. 598; Osceola Tribe v. Schmidt, 57 Md. 98; Karcher v. Supreme Lodge, 127 Mass. 368; Sperry's Appeal, 116 Penn. St. 391; State v. Williams, 75 N. C. 134; Chamberlain v. Lincoln, 129 Mass. 70; Altman v. Benz, 27 N. J. Eq. 331; Hall v. Supreme Lodge, 24 Fed. Rep. 450; Watson v. Jones, 13 Wall. 734.) The referee erred in admitting testimony objected to by defendants, and in refusing to strike out testimony improperly admitted. (Cutter v. Thomas, 25 Vt. 73; Abb. Tr. Ev. 15; Blake v. Newland, 12 Wend. 173.)</p> <p>The action was properly brought by the plaintiff as treasurer of an unincorporated association consisting of seven or more persons, and the proof was sufficient to establish the existence of the association. (Code Civ. Pro. § 1919; Ebbinghousen v. Worth Club, 4 Abb. [N. C.] 300; McCabe v. Goodfellow, 39 N. Y. S. R. 941; National Bank v. Vanderworker, 74 N. Y. 234.) The provisions confiscating the property of the local assembly are void as against public policy and courts will not aid in enforcing them. (Austin v. Searing, 16 N. Y. 112; N. Y. P. Assn. v. McGrath, 23 N. Y. S. R. 209.) The contention of the defendants that the plaintiff ought to have appealed from the order of suspension to some superior body in the organization is not well taken. (Lafond v. Deems, 81 N. Y. 507; Poultney v. Bachman, 31 Hun, 49.) This contract is not within the Statute of Frauds. (2 Pars. on Cont. [6th ed.] 9 ; 3 id. 20, 217; Wales v. Stout, 115 N. Y. 640; Brown v. Weber, 38 id. 187; Prime v. Keohler, 77 id. 91; White v. Rintoul, 108 id. 223; Smart v. Smart, 97 id. 559; Ackley v. Parmenter, 31 Hun, 476; 98 N. Y. 425; Barney v. Forbes, 118 id. 580; Mallory v. Gillett, 21 id. 412; Church v. Brown, Id. 315.) The defendants in their answer admit the making of the note, and do not plead the Statute of Frauds. Under such circumstances they are deemed to have renounced the benefit of the statute. (Duffy v. O' Donovan, 46 N. Y. 226; Lewin v. Stewart, 10 How. Pr. 512; Moak’s Van Santvoord’s Pleadings, 505, 555; Porter v. Wormser, 94 N. Y. 450.)</p>

This is an action of ejectment brought to recover the possession of certain premises in the city of Hew York and described in the complaint. The plaintiffs are the surviving executors of one Benjamin IT. Hutton, who died in the city of Hew York on the 17th day of February, 1884. John H. Whiting, who is named in the will as one of the executors thereof, died on or about the 19tli of April, 1885, leaving the plaintiffs sole surviving executors.

Cross-appeals from judgment of the General Term of the Supreme Court in the first judicial department, entered upon an order made March 13, 1891, which modified and affirmed, as modified, a judgment in favor of plaintiff, entered upon a verdict and affirmed an order denying a motion for a new trial. The nature of the action and the facts, so far as. material, are stated in the opinion.

The nature of the action and the facts, so far as material, .are stated in the opinion. An expressed intention to alter a will in one particular, negatives by implication an intention to alter it in any other respect. (9 Cush. 291, 295, 296.) The will and codicils are to be read together, and, so far as may reasonably be, as if they were one instrument.

This action was brought against a stockholder of a corporation called The Saratoga Union, organized under the General Manufacturing Act of 1848 (Chap. 40) to enforce a claim of plaintiff against said corporation under the provision of said act (§ 10) making its stockholders liable to the amount of their stock until a proper certificate has been made and recorded that all the capital stock has been paid in. The facts, so far as material, are stated in the opinion.

This action was brought to set aside as fraudulent a chattel mortgage executed by the defendant Ely D. Austin, to the defendant Harvey Austin, and to restrain defendants from removing hay and grain from the premises.

The plaintiff appeals from a judgment of the General Term of the Supreme Court, affirming a judgment of the Special Term, which dismissed her complaint upon the merits. The action was brought to partition certain real estate in Putnam county among the heirs of one Amos Dykeman, who died April 17, 1882.

This was an action to recover for work upon certain buildings, and was brought against the defendants as copartners. The facts, so far as material, are stated in the opinion. Mrs. Spaulding gave her' bond and mortgage to Mr. Koch as security that she would carry out the agreement on her part, and it is fair to presume - that the business was to be done in her name, and her name, to all intents and purposes, was the firm name.

The nature of the action and the facts so far as material are stated in the opinion. The covenant of seizin is in effect a covenant for a good title. (4 Kent’s Comm. 471; Rawle on Cov. § 58; Mott v. Palmer, 1 N. Y. 569.) Plaintiff’s cause of action was perfect as soon as he received his conveyance.

This action was brought to restrain the defendants from constructing flats on certain premises in the city of Brooklyn. The facts, so far as material, are stated in the opinion. Plaintiff was entitled to an injunction. (Hubbard v. Miller, 27 Mich. 15; D. W. Co. v. Roebe, 106 N. Y. 473 ; Piggott v. Stratton, 1 DeG., F. & J. 33.) There can be no objection to the agreement with Gollner, because it is in restraint of trade.

This action was brought upon a policy of marine insurance. The facts, so far as material, are stated in the opinion. The motion to dismiss the complaint should have been granted. (Phillips on Ins. § 383; Hooper v. Robinson, 98 U. S. 528; Crosby v. N. Y. M. Ins. Co., 5 Bosw. 369 ; P. Ins. Co. v. Catlett, 4 Wend. 75; Humphreys v. McKissock, 140 U. S. 304; Mallory v. T. Ins.

This action was brought to vacate an assessment and set aside a sale made thereunder.

This action was brought to restrain defendants from operating their elevated railroad in Greenwich street, in the city of Eew York, in front of plaintiff’s premises, and to recover damages. 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 Eew York, entered upon an order made the first Monday of February, 1891, which affirmed a judgment in favor of plaintiff, entered upon a decision of the court on trial at Special Term.</p> <p>The nature of the action and the facts, so far as material, are stated in the opinion.</p> <p>It was error to deny the defendants’ demand for a jury trial of the cause of action for money damages for past trespasses. (Const. N. Y. art. 1, § 2.) Plaintiff’s right to damages for past trespasses is a separate and distinct cause of action from his right to the aid of equity to prevent future threatened ones. (Tallman v. M. E. R. Co., 121 N. Y. 119 ; Bell v. Merrifield, 109 id. 202, 209 ; Secor v. Sturgis, 16 id. 558.) That these two causes of action are not stated and numbered separately is immaterial. (Goldberg v. Uttey, 60 N. Y. 427; Wiles v. Suydam, 64 id. 173.) It is well settled that a plaintiff cannot, by joining a legal cause of action with an equitable one, deprive defendants of a jury trial of the former. (Davis v. Morris, 36 N. Y. 569; Wheelock v. Lee, 74 id. 495; People v. A. & S. R. Co., 57 N. Y. 161, 174.) These past damages are not so “ incidental ” to the equitable relief as to take away the right of jury trial. (Code Civ. Pro. § 484; Laub v. Buckmiller, 17 N. Y. 620 ; Rathbone v. Warren, 10 Johns. 587 ; Story Eq. Juris. § 796 ; Kempshall v. Stone, 5 Johns. Ch. 193; Barlow v. Scott, 24 N. Y. 40, 45, 46; Sternberger v. McGovern, 56 id. 12, 21; Carroll v. Diemel, 95 id. 253 ; Rathbone v. Warren, 10 Johns. 587; G. S. Bank v. Sharer, 25 Hun, 409.) Past damages are not “ incidental ” to the injunction. (Murray v. Hay, 1 Barb. Ch. 59; Laub v. Buckmiller, 17 N. Y. 620, 626; Lettin v. McCarty, 41 id. 107, 111, 112; Hudson v. Caryl, 44 id. 553, 554, 555; Coggswell v. N. Y. C. R. R. Co., 105 id. 319, 320 ; Daw v. D. G. Co., 18 Hun, 274; People v. M. T. Co., 11 Abb. [N. C.] 304.) The defendants did not waive a jury trial of the legal cause of action by noticing the whole case for trial at Special Term. (Brayton v. Sherman, 119 N. Y. 623; Halpin v. P. Ins. Co., 118 id. 165; Wheelock v. Lee, 74 id. 495 ; Mackellar v. Rogers, 109 id. 468 ; Coleman v. Dixon, 50 id. 572, 574; Hudson v. Caryl, 44 id. 553, 554; Davis v. Morris, 36 id. 569, 572.) Defendants did not waive a jury trial by not moving to have issues framed under section 970 of the Code. (Code Civ. Pro. § 1009 ; Coleman v. Dixon, 50 N. Y. 572, 574; People v. A. & S. R. R. Co., 57 id. 161, 174; McKeon v. See, 51 id. 300, 305, 306; Wheelock v. Lee, 74 id. 495, 500; Davis v. Morris, 36 id. 569, 572; Hudson v. Caryl, 44 id. 553 ; Williams v. People, 24 id. 405.) It was not necessary for defendants to state any grounds for their demand for a jury trial. (Wheelock v. Lee, 74 N. Y. 495, 500; Davis v. Morris, 36 id. 569, 572, 573; Hudson v. Caryl, 44 id. 553, 555; McKeon v. See, 51 id. 300, 305.) The appropriateness of juries for determining questions of unliquidated damages, has always been recognized. (Phillips v. Thompson, 1 Johns. Ch. 131; Halsted, v. M. R. Co., 26 J. & S. 217.) The whole judgment should be reversed, and not merely the decree for past damages. (Code Civ. Pro. §§ 971, 972.) It was error to award damages for the portions of the property which were in the possession of tenants. (Code Civ. Pro. § 993.) The theory that equity took jurisdiction of this suit in order to prevent multiplicity of actions at law, of which that ■ for past damages was one, is fallacious. The true ground was solely to prevent future trespasses. (High on Inj. [2d ed.] 450, § 700; T. & B. R. R. Co. v. B., H. T. & W. R. Co., 86 N. Y. 107; Galway v. M. E. R. Co., 40 N. Y. S. R. 145.) The supposed analogy of patent, trade-mark and copyright cases has no pertinency. (3 Pom. Eq. Juris. § 1352 ; 1 id. 227, 228; Coleman v. Dixon, 50 N. Y. 572; Code Civ. Pro. § 484; Murray v. Hay, 1 Barb. Ch. 59; Laub v. Buckmiller, 17 N. Y. 620; Hudson v. Caryl, 41 id. 107; Cogswell v. N. Y. C. R. R. Co., 105 id. 319; Bedloe v. F. D. D. Co., 112 id. 263, 269; Todd v. Mason, 109 id. 316, 322.)</p> <p>Within the principles of equity jurisprudence and pleading, as established at the adoption of the Constitution, the complaint contains a single independent cause of action, the claim for past damages being merely relief, which the Superior Court, exercising the powers of the late Court of Chancery, had jurisdiction to try and administer as incidental to the main relief. (Russell v. Clark, 7 Cranch, 69; Armstrong v. Gilchrist, 2 Johns. 424; Miller v. McCann, 7 Paige, 451; A. M. Co. v. Spear, 2 Sandf. 605; Watson v. Hunter, 5 Johns. Ch. 169; Smith v. Cook, 3 Atk. 379; Williams v. N. Y. C. R. R. Co., 16 N. Y. 97; Shephard v. M. R. Co., 117 id. 442; Watson v. M. R. Co., 21 J. & S. 137; Campbell v. Seaman, 23 N. Y. 568; Pollit v. Long, 58 Barb. 20; Code Civ. Pro. § 969 ; Hutchins v. Smith, 63 Barb. 251; Hess v. R. Co., 29 id. 291; Ellsworth v. Putnam, 16 id. 465.) The appellants are not in a position to insist that it was error to deny their motion for a jury trial. (Uline Case, 101 N. Y. 98; Pond Case, 112 id. 186; Code Civ. Pro. § 969; McKeon v. See, 51 N. Y. 300; Mackellar v. Rogers, 109 id. 458.)</p>

<p>While the court has power, in proceedings for the voluntary dissolution of a corporation, to decree a distribution of its funds among those entitled thereto, it may not take from a trustee fur ds placed in his hands by the corporation for a specific purpose, pursuant to a contract obligation, and itself distribute them through its receiver instead of through the trustee; the latter is, notwithstanding the dissolution, entitled to the possession of the trust fund, and the authority of the court is limited to compelling the trustee to distribute the fund, as provided for by the contract, and under the supervision and orders of the court.</p> <p>Where, therefore, a life insurance association, which proposed to issue certificates of membership to those becoming members, with a statement in each certificate that certain sums received thereon should be paid over to a trust company, as a safety fund for the security of the members, to be paid out by the trustee in the manner specified, entered into a contract with the trust company, by which the latter agreed to receive and hold this fund and pay it out in the manner and for the purposes so specified, held, that the court had no power, on a voluntary dissolution of the corporation, to order said trustee to pay over the trust fund, deposited in pursuance of the agreerdent, to the receiver appointed in said proceedings.</p> <p>Also held, that the question was not affected by the fact that the agreement stated that the fund belonged to the association, subject to the execution of the trust.</p> <p>In re Atty.-Genl. v. G. M. Life Ins. Go. (77 N. Y. 273), distinguished.</p> <p>The trust company, in pursuance of a Special Term order, made without notice to it, paid over the fund to the receiver. Held, that the payment was not voluntary, so far as to preclude the company from moving the court to require the receiver to pay back to it so much of the fund as still remained in his hands.</p> <p>The receiver had, in good faith and under the direction of the court, paid out a portion of the fund, before the making of the motion for an order requiring him to pay it back,-in the making of which there had been some laches on the part of the trust company. Held, that he was entitled to be protected in these payments.</p> <p>Payments were so made by him to the attorneys in the dissolution proceedings for their fees. Held, that an order was proper requiring said attorneys to pay back to the receiver the moneys so received by them, and directing him, upon receipt thereof, to pay them over to the trust company.</p>

Plaintiff brought this action to compel the defendants to reassign to him certain interests which they had acquired in letters patent issued to him for inventions, etc., and for an accounting between the parties. The plaintiff had invented an improvement in door hangers, in roller skates, a machine for stripping willows and a post-office cancelling apparatus.

The nature of the proceedings and the facts, so far as material, are stated in the opinion. The revised charter of Long Island City (Chap. 461, Laws of 1871), in so far as it relates to the assessment of water-rates, and the several acts amending its provisions in relation to assessment of water-rates, are unconstitutional for failure to provide a hearing for the property owners, and the water-rates assessed thereunder are illegal and invalid.

Cross-appeals from judgment of the General Term of the Supreme Court in the fourth judicial department, entered upon an order made Hay 5, 1891, which modified, and affirmed as modified, a judgment in favor of defendant entered upon a decision of the court on trial at Circuit. The nature of the action and the facts, so far as material, ■are stated in the opinion.

This action was brought by plaintiff as assignee for the benefit of the creditors of Jacob Kapp, to recover the value of a stock of merchandise taken from plaintiff by the sheriff of the city and county of Hew York, under attachments issued in suits brought by the defendants Hyman, Morris and Stroock against plaintiff’s assignor.

department, made December 'T, 1891, which affirmed an order of Special Term directing a writ of peremptory mandamus to issue, commanding the state board of canvassers to issue to the relator a certificate of election to the office of state senator. The facts, so far as material, are stated in the opinions. The relator was at the time of the election, and is ineligible to the office of senator.

The relator, Franklin D. Sherwood, was a candidate foi the office of state senator in the twenty-seventh senatorial district at the annual election of 1891.

Peck certain votes not properly indorsed. The facts, so far as material, are stated in the opinions. Sections 1, 2, chapter 460, Laws of 1880, permitting the board of county canvassers to be reconvened under the order of the Supreme Court and compelled to correct errors in their previous determination and canvass, was not intended to enlarge the powers •of the board as to the matters here in dispute, nor to enable it to take evidence or consider proof aliunde the returns.

, and is not signed by the county cleric of Dutchess county or certified under the seal of said county clerk, but that instead thereof, they, consider only such return from the county of Dutchess as may hereafter be filed containing the signatures of the county clerk of the county of Dutchess and the chairman of said board of county canvassers, and issued under the seal of said county clerk, and that in their certificate of election the said state board of canvassers certify…

The substance of the order and the facts, so far as material, ;are stated in the opinion. The application for a mandamus should have been denied, because it asked for an order directing the state board to abstain and refrain from doing something which there is no proof that the board intended to do. (High on Extr. Remedies, 14; Brown v. Duane, 60 Hun, 98; 14 Am. & Eng.

The board of county canvassers were not bound to allow votes returned as having been cast for David A. Munro, D. A. Monro or D. A. Munro, Jr., in favor of the relator, David A. Munro, Jr. (People v. Ferguson,, 8 Cow. 102; People v. Cook, 8 N. Y. 67, 80; Kortz v. Canvassers, 12 Ahb. [N. C.] 84; Clark v. Bd. of Examiners, 126 Mass. 282; People v. Seaman, 5 Den. 409; Opinion of Justices, 64 Me. 596; People v. Tisdale, 1 Doug. 59 People v. Cicott, 16 Mich. 283.) The board of…

The case was submitted to the general term, third department, upon an agreed statement of facts, substantially as follows: The New York, Chicago & St. Louis Railroad Company was-organized under the general railroad laws of New York, June 16, 1887, with a capital stock of $4,500,000. The railroad extended from Buffalo to the state line between New York and Pennsylvania.

The substance of the order and the facts, so far as material, are set forth in the opinion. The $2,000 mortgage under which Cannon claims, but which Steers, in fact, holds, covering three different parcels, and the West Third street property being the last one of those three parcels aliened by the mortgagor, that property is primarily liable for the satisfaction of the mortgage.

This was an action upon a policy of marine insurance. The facts, so far as material, are stated in the opinion. The plaintiff had no insurable interest in the draft. (1 Am. on Mar. Ins. 10; 1. Pars. on Mar. Ins. 208; 2 Pars. on Cont. [7th ed.] 636, 637 Meyer v. Isaac, 6 M. & W. 612; Cole v. White, 26 Wend. 515; 2 Marsh on Ins. 633; Stainbank v. Fenning, 11 C. B. 88; Stainbank v. Shephard, 13 id. 418; The Nelson, 1 Hagg. 169; The Atlas, 2 id. 48-54; The Emancipation, 1 Wm.

This was an action to charge defendants, as general partners of the firm of P. Lent & Co., a limited partnership, with a debt of said firm. The facts, so far as material, are stated in the opinion. It was incumbent upon plaintiffs to prove some invalidity, or irregularity or defect, which converted the special or limited partnership into a general one.

The nature of the action and the facts, so far as material, are stated in the opinion. It was error to refuse to find that plaintiff had no easements of quiet, privacy or conspicuousness. (Kane v. N. Y. E. R. Co., 125 N. Y. 164; 2 R. L. 1813, chap. 408, § 178.) The exceptions taken by the defendants are not sufficiently specific to bring the questions before this court for review. (McGean v. M. R. Co., 117 N. Y. 219; Crawford v. M. E. R. Co., 120 id. 624.)

This action was brought to recover damages for an alleged unlawful arrest and imprisonment. The facts, so far as material, are stated in the opinion. The defendant is not liable for the agent’s mistaken view of his duty as a citizen. (Laws of 1888, chap. 583, §§ 20, 25 : Code Crim.

<p>The liability imposed by the General Manufacturing Act (§ 10, chap. 40, Laws of 1848) upon stockholders of a company organized thereunder, for a failure to file the proper certificate of payment, upon an increase of its ■ capital stock, attaches only to the increase, and only stockholders holding the increased stock are liable; the provision has no reference to, or effect upon, the original capital and its holders.</p> <p>A creditor of the corporation, seeking by action to enforce such a liability, must allege and prove facts showing that the conditions of the statute are exactly met by his case; no presumptions or inferences can be indulged in.</p> <p>Unless, therefore, the stockholder proceeded against is proved to hold some of the increased stock, he is not brought within the statute.</p>

The action was brought to recover the amount of a draft-drawn by the American Exchange in Europe (Limited), a banking corporation, upon and accepted by the defendants and indorsed and transferred by the drawer to the plaintiff.

This was an action to restrain defendants from conveying or'turning over the franchise and property of the Chattaroi Railway Cqmpany to any person or corporation, except the Ohio Big Sandy Railroad Company, and then only upon the issuing of its stock of $2,000,000 and distribution thereof fro rata, among the bondholders of the former company, and from receiving the sum of $56,000 for their expenses and disbursements in the matter, and for an accounting of the moneys received…

<p>Appeal from judgment of the General Term of the Supreme Court in the fifth judicial department, entered upon an order made the first Tuesday of January, 1891, which affirmed a judgment in favor of plaintiff, entered upon a decision of the court on trial at Special Term.</p> <p>This action was brought by plaintiffs as judgment creditors of the firm of Marion & Co., to set aside, as fraudulent and void, an assignment for the benefit of creditors, executed by the defendants, Margaret A. and .James Marion, who composed said firm, to the defendant John F. Kinney.</p> <p>The assignment, by its terms, grants and assigns all the copartnership and individual estate, property and effects of every description belonging to the parties of the first part, or either of them. After providing for the payment of the expenses of executing the trust, and of wages due to employes, it directs the assignee to pay certain preferred debts, most of which appear on the face of the provision to be debts of the copartnership; the four last items are as follows: “ And to J. Faliy & Co. and James Gr. Comerford of Rochester, FT. Y., the amount of their accounts; and also to A. J. Kirley the sum of $70, and to R. Gr. Dun & Co. the sum of $50.” Then follows a direction to the assignee in these terms: “ 4th. To pay and discharge in full, if the residue of said proceeds is sufficient for that purpose, all the debts and liabilities now due or to grow due from the parties of the first part, together or respectively, with all interest moneys due or to grow due; and, if the residue of said proceeds shall not be sufficient to pay the said debts and liabilities and interest moneys in full, then to apply the said residue of said proceeds to the payment of said debts and liabilities, ratably and in proportion.” The court found the assignment correctly set out in the complaint; that the debts preferred to Fahy & Co. and Comerford were fictitious, being made to appear by an alteration of the books of the firm, whereby an individual indebtedness of Margaret A. Marion, of between $700 and $800 to each of said pretended creditors of the firm, was credited to each of them, respectively, and charged to Margaret A. Marion, with the result that what were, in fact, individual debts of Margaret A. Marion to the creditors named became apparent debts of the firm to them, and were preferred as snob; that-such alteration of the books of the firm was made at about the time the assignment was made, without the knowledge of either of the copartners, by one Francis E. Marion, the husband of Margaret A., who was general manager, and had sole-charge of the business of the firm, that such fictitious preferences were supposed by the assignors to be actually correct, when the schedules were made in which the several amounts-of those preferences were specified. The court further finds: “ 8th. That in said assignment the said assignee was directed, after the payment of the preferred creditors, to devote the remainder of the proceeds, of so much thereof as might be necessary, to the payment of the debts of said firm of Marion & Co., and the individual debts of Margaret A. Marion and James Marion, ratably, and share and share alike; and that, said payments were to be made out of the proceeds of the sale-of the individual and firm property without discrimination. That the individual debts of Margaret A. Marion amounted to-several hundred dollars.” And as a conclusion of law, the court finds that the assignment is fraudulent and void as to the. plaintiffs and such other judgment creditors as may come in.</p> <p>The complaint charged only that the assignment was made with intent to hinder, delay and defraud creditors, and the judgment cannot be sustained upon findings which negatived the allegations of the bill and made out a new and unsuggested case. (Day v. Town of New Lots, 107 N. Y. 154,155 ; Wright v. Delafield, 25 id. 266 ; Salisbury v. Howe, 87 id. 132, 133; Ferguson v. M. L. Ins. Co., 22 Hun, 326; Baird v. Mayor, etc., 96 N. Y. 603.) If the assignment was fraudulent and void per se, it was so on account of the grammatical construction given to the assignment itself by the courts below, and the appellants insist that such interpretation is forced and wrong. (Crook v. Rindskopf, 105 N. Y. 485 ; Townsend v. Stearns, 32 id. 209 : E. S. Bank v. Roche, 93 id. 378; Platt v. Lott, 17 id. 480; Kellogg v. Slauson, 11 id. 305.) The judgment is wrong, for the reason that the plaintiffs did not rest upon the document, but went on into the question of actual fraudulent intent to make the debts of Margaret debts of her firm. From that moment the question of construction became subordinate and the plaintiffs could only succeed upon the issue of actual fraud, and the court has found the defendants innocent. (Crook v. Rindskopf, 105 N. Y. 481; Jaycox v. Turner, 40 id. 475; Hurlbut v. Dean, 2 Keyes, 97.) It is no objection to the validity of this assignment that it preferred over other partnership debts these debts of Margaret A. Marion, not originally contracted by the firm, but which they had assumed and become liable to pay. (Turner v. Jaycox, 40 N. Y. 475 Wilson v. Robertson, 21 id. 572; Bernheimer v. Rindskopf, 116 id. 439.) Assuming that Frank Marion changed the books with some meretricious intent of his own in which his-employers had no part, the question comes squarely before this court, whether an honest assignment will be set aside because some third person, upon whom the assignors of necessity relied for their information, misled them. (Hardman v. Bowen, 39 N. Y. 200; Shultz v. Hoagland, 85 id. 468; Warner v. Jaffray, 96 id. 253.) The act of Frank Marion, at the- worst, was merely a fraud upon the assignment, and could not avoid the instrument. The assignee could have maintained an action to set aside the Faliy and Commerford transactions in aid of the trust. If he had refused, these creditors might have maintained it. But this action to set aside the assignment itself cannot be upheld upon the facts which exist. (Loos v. Wilkinson, 110 N. Y 198, 200, 210; Spring v. Short, 90 id. 545; Crouse v. Frothingham, 97 id. 112; Laws of 1858, chap. 314; Southard v. Benner, 72 N. Y. 424.)</p> <p>The allegations of the complaint are sufficient. (3 R. S. 23-29, §§ 1-4; Durant v. Pierson, 29 N. Y. S. R. 510; Wilson v. Robertson, 21 N. Y. 587; Hulbert v. Dean, 2 Keyes, 97.) If there is any evidence to support the findings of fact excepted to, they, as well as those not excepted to, are binding and conclusive upon this court. (Quincy v. White, 63 N. Y. 370 ; Barker v. White, 58 id. 204; Stillwell v. M. L. Ins. Co., 72 id. 385.) The preferred claim in favor of J. Fahy & Co. was fictitious. (3 R. S. [7th ed.] 2276, § 3 ; Terry v. Butler, 43 Barb. 395 ; Talcott v. Hess, 31 Hun, 282-284; Shultz v. Hoagland, 85 N. Y. 464, 468; Menagh v. Whitwell, 52 id. 146; Ransom v. Van Deventer, 41 Barb. 307; Victor v. Henlein, 34 Hun, 562.) 'The directions to pay Commerford and Fahy & Co. each a ■sum exceeding the amount due them rendered the assignment ■fraudulent and void. [De Camp v. Marshall, 2 Abb. [N. S.] .373; Tieden v. Day, 2 Sandf. 594; Meade v. Phillips, 1 Sand. C. N. 83; Frazier v. Truax, 27 Hun. 587; Talcott v. Hess, 31 id. 232; A. E. Bank v. Webb, 36 Barb. 29.) The assignment provided for the payment of the individual debts of each member of the firm from copartnership) property, and the debts of each individual member of the firm out ■of the pn-oceeds of the individual property of the other member of the firm, and is, therefore, npon its face fraudulent and void. (Platt v. Hunter, 11 Wkly. Dig. 300; Willson v. Robertson, 21 N. Y. 587; Shiel v. Healey, 61 How. Pr. 73; O’Neil v. Salmon, 25 id. 246; National Bank v. Cohen, 6 N. Y. S. R. 380; Hulbert v. Dean, 2 Keyes, 97-99 ; 2 Abb. Ct. App. Dec. 428; Menagh v. Whitwell, 52 N. Y. 146; Kerchies v. Schloss, 49 How. 284, 285; Frazier v. Truax, 27 Hun, 587; In re Lewis, 81 N. Y. 421; Story on Part. § 152; Grande v. Colwell, 5 Cow. 489; Dobb v. Holses, 16 Johns. 33; Effingham v. Ensworth, 7 Wend. 326; Bendall v. Hattrick, 1 Sweeny, 405; Laverty v. Garraty, 1 Wend. 529-531; Bank of Rochester v. Bowen, 7 id. 158; Wilson v. Petterkin, 14 id. 146; Stainers v. Tyson, 3 Hill, 279; Pothier on Obligations, 83; Geary v. Cockroft, 1 J. & S. 146.) Hpon the evidence the court would have been warranted in finding additional facts which would have-■supported the conclusions of law found. (Story on Part. § 133 ; Rogers v. Peters, 12 Pet. 229; Menagh v. Whilwell, 52 N. Y. 146 ; Ransom v. Van Deventer, 41 Barb. 307; Vietor v. Henlein, 34 Hun, 562; Shultz v. Hoagland, 85 N. Y. 464— 468; De Camp v. Marshall, 2 Abb. [N. S.] 373 ; Bailey v. Howe, 18 J. & S. 100; White v. Fagin, 18 Wkly. Dig. 358.)</p>

<p>Appeal from judgment of the General Term of the Supreme Court in the third judicial department, entered upon an order made September 8, 1891, which modified, and affirmed as modified, a decision of the comptroller of the state, denying a petition of the relator for a revision and readjustment of accounts for taxes against it, imposed under the act of 1880 (Chap. 542, Laws of 1880), and the acts amendatory thereof. The facts, so far as material, are stated in the opinion.</p> <p>The relator had exhausted the remedy given it by the act under which the tax was levied, and was, therefore, entitled to the writ. (Laws of 1889, chap, 4(13; Laws of 1880, chap. 542; Laws of 1881, chap. 361.) The operations of companies engaged in the business of the relator are essentially manufacturing operations, the result is a manufacture, and consequently the relator is a manufacturing corporation within the meaning of the statute exempting such corporations from the payment of a tax to the state. (N. G. L. Co. v. Brooklyn, 89 N. Y. 409; People v. K. I. Co., 99 id. 181; E. U. M. Co. v. F. E. L. & P. Co., 82 Me. 464; 150 Mass. 392; Emerson v. Commonwealth, 108 Penn. St. 111.) The legislature itself has in various statutes applied the word “ manufacturing ” to companies engaged in the business of electric lighting, and lias thereby indicated the meaning which it attached to the word as used in chapter 542 of the Laws of 1880. (Laws of 1882, chap. 73, § 1; Laws of 1887, chap. 716; Laws of 1890, chap. 506, § 6.) The legislature has shown its construction of the act of 1880 by deeming it necessary in 1889, in order to enable the state to impose a state tax upon electric light companies, to amend the act of 1880 by expressly declaring that such companies should not be exempt. (Laws of 1880, chap. 542; Laws of 1881, chap. 361; N. G. L. Co. v. City of Brooklyn, 89 N. Y. 409; People v. Bd. Suprs., 16 id. 424; People v. N. Y. F. D. D. Co., 92 id. 187.) The executive officers of the government have themselves construed the word “manufacturing” to include electric lighting companies. This construction is entitled to great weight. (U. S. v. Moore, 95 U. S. 763; Sedg. on Dam. 216; People ex rel. v. Beach, 19 Hun, 259.)</p> <p>The relator was not entitled to the writ of certiorari granted herein by the court. (Laws of 1889, chap. 463; Gilmore v. City of Utica, 121 N. Y. 569; People v. Conner, 46 Barb. 333; People ex rel. v. Town Clerk, 29 Hun, 216.) So far as any question concerning the validity of tlie tax sought to be reviewed herein is made to depend upon the petition and return of the comptroller, it must be held that the return is conclusive as to the;facts embraced within it. (People v. Dains, 38 Hun, 43; People v. Fire Commissioner, 73 N. Y. 437; People v. City of Rochester, 21 Barb. 656; People v. Knowles, 47 N. Y. 415; People v. Van Alstyne, 32 Barb. 132; People v. Wheeler, 21 N. Y. 82; People v. Goodwin, 5 id. 568; People v. Comrs., 106 id. 67; Code Civ. Pro. §2140; People v. Davenport, 91 N. Y. 574; People v. Keator, 36 Hun, 594; People v. Williams, Id. 366; People, etc., v. Comrs. of Taxes, 21 N. Y. S. R. 358; People, etc., v. Comrs. of Taxes, 104 N. Y. 240.) The acts of 1880 and 1881 are general statutes, imposing a tax upon coiqmrate franchises; and if the relator claims exemption from their operation, the burden is upon it to clearly and satisfactorily establish its exemption. (People v. Commissioners, 76 N. Y. 64; Burroughs on Taxation, 132,’§ 70; Delaware Railroad Tax, 18 Wall. 206 ; North Missouri Railroad v. McGuire, 20 id. 46 ; Erie Railway Co. v. Pennsylvania, 21 id. 492.) Even if the relator is to be "regarded as a corporation engaged in the business of lighting the streets, avenues and public places, and public and private buildings in the city of Hew York with electricity, still, it is undoubtedly a corporation liable to taxation under the act of 1881. It is not a manufacturing corporation in the sense in which that term is used in the act of 1881. (N. G. L. Co. v. City of Brooklyn, 89 N. Y. 409; People v. K I. Co., 99 id. 181; People v. N. Y. D. D. Co., 92 id. 487; Byers v. F. C. Co., 106 Mass. 131; Dudley v. J. P. A. Co., 100 id. 183; Frasee v. Moffit, 20 Blatchf. 267.) It cannot be successfully urged that electric light companies have any vested or inherent right to exemption from taxation unless that exemption has been clearly given to it by the legislature. And if it be admitted that - there was a question of doubt in 1889 whether, under all the circumstances stated, they were or were not intended to be included _ in- the exemption of a' general class of corporations, then it must also be admitted that the legislature had the right to, and, we believe, did solve that doubt in the act of 1889 by declaring that they were not so included, and the comptroller was right and justified in following this legislative declaration in the assessment made herein. (Laws of 1879, chap. 512; Laws of 1880, chap. 542; N. G. L. Co. v. City of Brooklyn, 25 Hun, 567; 89 N. Y. 409; Laws of 1881, chap. 361; Laws of 1889, chap. 533; Laws of 1882, chap. 73; Vicksburgh v. Dennis, 116 U. S. 665; C. R. R. Co. v. Guffey, 120 id. 575; Y. R. R. Co. v. Thomas, 132 id. 185.)</p>

<p>Appeal from judgment of the General Term of the Supreme Court in the third judicial department, entered upon an order made Hay 5, 1891, 'which confirmed a decision of the comptroller of the state denying the application of the relator for a revision and readjustment of accounts for taxes against it.</p> <p>The facts, so far as material, are stated in the opinion.</p> <p>This court has power to review the action of the General Term by which the proceedings of the comptroller were confirmed. (Laws of 1889, chap. 463, § 20; Code Civ. Pro. § 190.) The accounts as settled by the comptroller in the case of the relator were erroneous and illegal, because during the years 1887, 1888 and 1889 the relator was not doing business in this state, -within the meaning of the statute. (Laws of 1880, chap. 542, § 3; Laws of 1881, chap. 361; Laws of 1885, chap. 359; Laws of 1889, chaps. 193, 353; People v. H. S. M. Co., 105 N. Y. 76; People v. E. T. Co., 96 id. 387; In re A. & C. R. R. Co., 9 Blatchf. 390; S. C. O. Co. v. Wemple, 44 Fed. Rep. 24; People ex rel. v. Comrs., 59 N. Y. 40; Laws of 1882, chap. 151; Laws of 1886, chap. 143; People v. A. B. T. Co., 117 N. Y. 241.) The accounts for taxes as settled by the comptroller were erroneous and illegal, because, as the relator employed no part of its capital stock in this state, there was no basis for a tax. (Laws of 1880, chap. 542, § 11; Laws of 1882, chap. 151; Laws of 1885, chap. 501; People v. H. S. M. Co., 105 N. Y. 76 ; In re A. & C. R. R. Co., 9 Blatchf. 390 ; People v. Comrs., etc., 59 N. Y. 40 ; People ex rel. v. Coleman, 126 id. 433; 1 Morawetz on Corp. § 435; Williams v. W. U. T. Co., 93 N. Y. 102; People ex rel. v. A. B. T. Co., 117 id. 241, 256; Gordon v. Mayor, etc., 5 Gill. 231; State of Missouri v. H. & St. J. R. R. Co., 37 Mo. 265.) The proceedings of the relator were regular in all respects. (People ex rel. v. Wemple, 15 N. Y. Supp. 711; People ex rel. v. Wemple, Id. 718; People ex rel. v. Wemple, Id. 446.)</p> <p>The writ of certiorari herein should be quashed, because application for it was not made within thirty days after service upon the relator by the comptroller of notice of settlement of the-taxes in question; and because the papers upon which the motion for the writ was made and notice of the motion were not served upon the comptroller as required by section 17 of chapter 361 of the Laws of 1881, as amended by chapter 501 of the Laws of 1885. (State v. County of Kings, 125 N. Y. 323.) A writ of certiorari should not have been issued in this case, because the determination of the comptroller sought to be reviewed could be adequately reviewed by an appeal to a board consisting of the secretary of state, attorney-general and state treasurer, as provided in section 1 of chapter 261 of the Laws of 1881. (Code Civ. Pro. § 2122; People v. Betts, 55 N. Y. 600; In re P. P. & C. I. R. R. Co., 85 id. 489 ; People v. Sherman, 15 Hun, 575; People ex rel. v. Comrs., etc., 99 N. Y. 256.) The determination of the comptroller was right upon the merits, (R. P. C. Co. v. Pennsylvania, 141 U. S. 281.) The question of the valuation of the relator’s capital employed in this state was one of fact, which the comptroller was authorized and directed by the Corporation Tax Law to determine, and his determination will not be disturbed upon a review by certiorari. (Code Civ. Pro. § 2140 ; People ex rel. v. Comrs., etc., 82 N. Y. 360; People v. Comrs. of Taxes, 99 id. 154; People v. Davenport, 91 id. 574-581; People v. Keator, 36 Hun, 594 ; People v. Comrs. of Taxes, 21 N. Y. S. R. 358; Peoples. McCarthy, 102 N. Y. 642; People v. Comrs. of Taxes, 104 id. 240 ; People v. Coleman, 107 id: 541; People v. Weaver, 34 Hun, 321; People v. Pond, 13 Abb. [N. C.] 1; People ex rel. v. Hicks, 105 N. Y. 198.) The relator is, for the purpose of taxation, concluded by the statute and the statement in its certificate of incorporation with respect to thé place where its operations are to be , conducted and its business transacted. (U. S. Co. v. City of Buffalo, 82 N. Y. 351; O. S. Factory v. Dolloway, 21 id. 449 ; W. T. Co. v. Scheu, 19 id. 408 ; C. M. Co. v. Coleman, 44 Hun, 545 ; People v. Comrs. of Taxes, 64 N. Y. 541.) The franchises of the relator constitute a part of its corporate property, and may properly be considered in determining the-value of such property and the amount of its capital employed in this state. (People v. O’Brien, 111 N. Y. 1; People v. B., etc., R. R. Co., 89 id. 84; N. O., etc., R. R. Co. v. Delamore, 114 U. S. 501; M., etc., R. R. Co. v. Railroad Comrs., 112 id. 619; H. Ins. Co. v. New York, 134 id. 601.) All the property which the relator owned or held within this state during the specified years constituted a part of its capital employed here. (People v. Comrs., etc., 23 N. Y. 192; 2 Wall. 200 ; State Railroad Tax Case, 92 U. S. 602; R. R. Co. v. Vance, 96 id. 455 ; People v. Coleman, 126 N. Y. 438.)</p>

This action was brought by plaintiff, who was appointed receiver of the defendant Maria L. Chauncey in supplementary proceedings, to discover and apply assets alleged to be in the hands of the defendant Michael Chauncey, to the payment of a judgment recovered against her March 21,1884.

<p>Appeal in each of the above-entitled cases from a judgment of the General Term of the Superior Court of the city of Hew York, entered upon an order made the first Monday of February' 1891, which affirmed a judgment in favor of plaintiffs, entered upon a decision of the court on trial at Special Term.</p> <p>These two cases were argued together as involving the same questions.</p> <p>The plaintiff Somers was the owner by conveyance to him in March, 1882, of certain premises known as numbers 2271 and 2273 on Second avenue in that city, and between One Hundred and Sixteenth and One Hundred and Seventeenth streets. He alleged that the defendants had unlawfully interfered with, trespassed upon and illegally taken his easements (or some portion thereof) of light, air and access to his property by the illegal erection and operation of their elevated railway in such avenue. He demanded judgment restraining defendants from further maintaining their structure in front of his premises and compelling them to remove the same. He also asked to recover the amount of his damage already sustained by reason of the maintenance and operation of the road past his premises, and that if defendants were permitted to maintain and operate the road in the future it should only be upon the condition that they should pay plaintiff the amount of the permanent loss he would suffer by reason of such maintenance and operation. «</p> <p>The plaintiff Bolnn made substantially the same allegations in relation to his property, which, was also situated on Second avenue and a short distance from plaintiff Somers.</p> <p>The defendants answered and particularly put in issue the allegation's in the complaint in each case as to the damages resulting from the acts of defendants.</p> <p>Both actions were tried at a Special Term of the court without a jury, and the court, among other matters, found the following facts. They are in substance the same in each case :</p> <p>In the Somers case the defendants were duly incorporated, and before they proceeded to construct their railroad through Second avenue they obtained the authority of the legislature and the consent of the municipal authorities of the city of Hew York to do so, but such authorization did not entitle them to take the property of plaintiff without compensation. In 1883, and prior to April first, the plaintiff erected on his lots two large and valuable brick buildings, and to them and to the lots on which they rested were attached as appurtenant thereto certain easements of light, air and access from Second avenue. Since April 1, 1883, the elevated railway structure of defendants has greatly cut off the light, air and access which otherwise would have come to plaintiff’s premises from that avenue. By the acts of defendants in depriving the plaintiff in part, of the beneficial use and enjoyment of his easements above mentioned from April, 1883, to the time of trial, April, 1890, the rental value of plaintiff’s premises has been reduced twenty-one hundred dollars, and the plaintiff has sustained a loss thereby to that amount. The damage is of a continuous character, arising from the maintenance and operation of the road by defendants. The road was opened for public use in March, 1880, °and has been ever since so maintained and operated. The permanent damage caused by the operation and maintenance of defendants’ road was found to be $3,000, upon payment of which no injunction was to issue. The money was only to be paid in case the plaintiff conveyed to the defendants all the rights and easements appurtenant to his lots, which had been taken by them.</p> <p>In the Bohm case the same general facts were found, differing only as to the different lots and as to the amount of damages.</p> <p>Further facts are stated in the opinion.</p> <p>The learned trial judge decided the case upon an erroneous theory, by endeavoring to ascertain how much plaintiff would have been injured, if he had not been benefited, and by charging defendants with the constructive damage thus imagined. (Kennedy v. Porter, 109 N. Y. 526, 534; Andrews v. Raymond, 58 id. 676; Becks v. Sheldon, 48 id. 369; Smith v. G. F. Ins. Co., 62 id. 87; James v. Cowing, 82 id. 449,457; McGean v. M. R. Co., 117 id. 219; Starbird v. Barrows, 43 id. 200; Laws of 1850, chap. 140, § 16 ; Laws of 1875, chap. 606, § 20; In re Furman St., 17 Wend. 649, 670 ; T. & B. R. Co. v. Lee, 13 Barb. 169,171; In re Utica, etc., R. Co., 56 id. 456, 464; People ex rel. v. Eldridge, 3 Hun, 541, 543; Henderson v. N. Y. C. R. R. Co., 78 N. Y. 423, 433; In re W. S., etc., R. Co., 29 Hun, 609, 611, 612; Drucker v. M. R. Co., 106 N. Y. 157; In re B. E. R. Co., 55 Hun, 165.) The method of computing consequential damages, for which we contend, is not inconsistent with any statute, nor with the Constitution. (Laws of 1850, chap. 140, § 16; Laws of 1875, chap. 606, § 20; Newman v. M. E. R. Co., 118 N. Y. 618; Pond v. M. E. R. Co., 42 Hun, 567; Uline v. N. Y. C. R. R. Co., 101 N. Y. 98; In re B. E. R. Co., 55 Hun, 165.) It has been firmly established in this state that in computing consequential damages, all the advantages and disadvantages of the railway are to be considered. (Radcliff v. Mayor, etc., 4 N. Y. 195; Fobes v. R., W. & O. R. R. Co., 121 id. 505; A. N. R. Co. v. Lansing, 16 Barb. 68; T. & B. R. Co. v. Lee, 13 id. 169, 171; In re U., etc., R. Co., 56 id. 456, 464; People ex rel. v. Eldridge, 3 Hun, 541, 543; B. R. R. Co. v. Barnard, 9 id. 104, 105, 106 ; In re N. Y. C. R. R. Co., v. Judge, 15 id. 63; Henderson v. N. Y. C. R. R. Co., 78 N. Y. 423, 433; In re N. Y, L. E. & W. R. Co. v. Arnot, 27 Hun, 151, 155 ; In re N. Y. L. & W. R. Co., 29 id. 1, 3 ; In re W. S., etc., R. Co., Id. 609, 611, 612; Drucker v. M. R. Co., 106 N. Y. 157; In re N. Y, L. E & W. R. Co., v. Miller, 49 Hun, 542; In re B. E. R. Co., 55 id. 165, 166, 167; Newman v. M. E. R. Co., 118 N. Y. 618, 624, 625, 626.) The supposed distinction between general and special benefits has never been recognized in this state. (Lewis on Em. Domain, § 479; Const, art. 1, § 6; Livingston v. Mayor, etc., 8 Wend. 85; Rexford v. Knight, 15 Barb. 627, 641; Burbank v. Fay, 65 N. Y. 57, 64; Whitney v. State, 96 id. 240; Hillbourne v. Suffolk Co., 120 Mass. 393, 394; Carson v. Coleman, 11 N. J. Eq. 106, 108 ; Carpenter v. Landaff, 42 N. H. 218, 221; Arbrush v. Town of Oakdale, 28 Minn. 61; Schaller v. Omaha, 36 N. W. Rep. 533; Dougherty v. Brown, 3 S. W. Rep. 210; Newby v. Platte Co., 25 Mo. 258, 276.) The fact that plaintiff’s neighbors on the side streets may have been benefited more than he, is no reason for enhancing the award herein. (Livingston v. Mayor, etc., 8 Wend. 85; J. R. Co. v. Turner, 9 Leigh, 313; C. & P. R. R. Co. v. Francis, 70 Ill. 238; O. C. R. R. Co. v. Wait, 3 Ore. 91; H. & N. R. R. Co. v. Dickinson, 17 B. Mon. 173; Young v. Harrison, 17 Ga. 30.) It is impossible to apply practically any other rule than a determination of the effect of all the advantages arid disadvantages of the railway. (Page v. C., etc., R. Co,, 70 Ill. 324; L. R. & W. R. R. Co. v. Ross, 40 Kan. 598.) In other states, benefits of no sort are disregarded in computing consequential damage, except in obedience to the requirements of the Constitution or some statute. (A., etc., R. Co. v. Burkett, 42 Ala. 83; Hooper v. S., etc., R. R. Co., 69 id. 529; S. L., etc., R. Co. v. Anderson, 39 Ark. 167; Code Civ. Pro. § 1248 ; C. P. R. Co. v. Armstrong, 46 Cal. 85; S. F., etc., R. Co. v. Caldwell, 31 id. 367; Tebama v. Bryan, 68 id. 57; Trinity College v. City of Hartford, 32 Conn, 452; Wilcox v. City of Meriden, 57 id. 120; Whitman v. W. & S. R. R. Co., 2 Har. 514; Young v. Harrison, 17 Ga. 30; Jones v. W. V. R. R. Co., 30 id. 43; C. & P. R. R. Co. v. Francis, 70 Ill. 238; Page v. C. M. & S. P. R. R. Co., Id. 334; Symonds v. City of Cincinnati, 14 Ohio, 147, 173; Brown v. of Cincinnati, Id. 541; Cramer v. C. & P. R. Co., 5 Ohio St. 140, 145; C., etc., R. Co. v. Sampson, Id. 251, 253; Woodfall v. N., etc., R. R. Co., 2 Swan. 422; P., etc., R. Co. v. Stovall, 12 Husk. 1; J. R., etc., Co. v. Turner, 9 Leigh, 313 ; E. B., etc., R. Co. v. Rank, 78 Penn. St. 454; G., etc., R. Co. v. Partlow, 5 Rich. 428; C., etc., R. Co. v. Longworth, 30 Ohio St. 108.)</p> <p>Under the provision of the Constitution, as construed by the courts, and the provisions of the General Railroad Act and the Rapid Transit Act, in estimating the compensation to be made for private property taken for public use by a private railroad corporation, benefits or advantages from the proposed improvement cannot be considered or set off. (Genet v. City of Brooklyn, 99 N. Y. 296; People v. Mayor, etc., 4 id. 419 ; Rexford v. Knight, 15 Barb. 627; Const, N. Y. art. 1, § 6 ; Laws of 1850, chap. 140; Laws of 1875, chap. 606, § 20; Frederick v. Shane, 32 Iowa, 254; M. E. R. Co. v. Dominick, 55 Hun, 198; S. A. R. R. Co. v. Kerr, 72 N. Y. 330; 104 id. 268; 106 id. 157; Francis v. Schoellkopf, 53 id. 152; Tillotson v. Smith, 32 N. H. 90 ; Marcy v. Fries, 18 Kans. 353; Sanderson v. P. C. Co., 102 Penn. St. 370; Talcot v. Whipple, 7 Gray, 122 ; Gile v. Stevens, 13 id. 146; Armstrong v. City of St. Louis, 69 Mo. 309 ; Eagle v. C. C. R. W. Co., L. R. [2 C. P.] 638.) In estimating the damage to the land not taken, it is not admissible to make an allowance for general benefits; that is, benefits which merely affect the market value of the land not taken, in common with other land in the locality, but not at all its direct physical use and enjoyment. (35 Hun, 260; N. E. Bank v. M. E. R. Co., 21 J. & S. 311; 108 N. Y. 660; 121 id. 119; J. M. & I. R. R. Co. v. Esterle, 41 Bush. 667; Palmer Co. v. Ferrill, 17 Pick. 58; Brown v. R. R. Co., 5 Gray, 35; Payne v. Woods, 108 Mass. 160; Hilbourne v. County of Suffolk, 120 id. 393; Nicholson v. N. Y. & N. H. R. R. Co., 22 Conn. 74; Meacham v. R. R. Co., 4 Cush. 392.)</p>

This action was brought to recover damages for injuries to plaintiff’s property alleged to have been caused by the negligence of defendant. . The material facts of this case are substantially as follows: On the night of October 31, 1882, the plaintiff’s west-bound freight train left Hornellsville, about eleven o’clock, for Wells-ville, a station about twenty-six miles further west.

<p>Appeal from judgment of the General Term of the Supreme Court in the fourth judicial department entered upon an order made February 3, 1891, wliich affirmed a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term.</p> <p>The nature of the aption and the facts, so far as material, are stated in the opinion.</p> <p>The trial court erred in holding that it was immaterial whether or not plaintiff had built an artificial embankment, raising the earth several feet above the natural surface along the boundry line of his own premises next west of defendant prior to any excavating done by defendant. (Washb. on Eas. [4th ed.] 580, 600 ; Thurston v. Hancock, 12 Mass. 226; Farrand v. Marshall, 19 Barb. 380; Lasala v. Holbrook, 4 Paige, 169; Radcliff v. Mayor, etc., 4 N. Y. 195 ; 1 Add. on Torts, 84; Losee v. Buchanan, 51 N. Y. 476.) The proposition stated in the opinions below to the effect that defendant is estopped from interfering with the wall because it took tlie place of the lateral support owed by defendant to plaintiff is untenable. (Panton v. Holland, 17 Johns. 92; Lasala v. Holbrook, 4 Paige, 169; Healy v. Clark, 120 N. Y. 642; Halpin v. P. Ins. Co., 118 id. 165; Bedlow v. N. Y. D. Co., 12 id. 263; Kennedy v. Porter, 109 id. 526; Smith v. G. F. Ins. Co., 62 id. 85 ; James v. Cowing, 82 id. 449; Green v. Roworth, 113 id. 462; Bonnell v. Griswold, •89 id. 122; Schwinger v. Raymond, 83 id. 192; Tompkins v. Lee, 59 id. 662; Wood on Nuisances, § 174; McMaugh v. Burke, 12 R. I. 499.) The right claimed by plaintiff of ■maintaining the wall in question upon defendant’s premises, "being an estate in lands, requires for its enjoyment that plaintiff have an easement in said premises. (Nellis v. Munson, 108 N. Y. 453 ; Waslib. on Eas. [4th ed.] 2; Wisemam v. Lucksinger, 84 N. Y. 31; Cronkhite v. Cronkhite, 94 id. 323.) 'The plaintiff in order to maintain this action must show that 'he has acquired an easement in defendant’s land by grant or ■adverse possession, or the existence of such a state of facts -that the defendant would be estopped in equity from interfering with the wall. (Nellis v. Munson, 108 N. Y. 453; Wiseman v. Lucksinger, 84 id. 31; Cronkhite v. Cronkhite, 94 id. 323 ; 2 Washb. on Real Prop. [4th ed.] 303; 3 Kent’s Com. [12th ed.] 453.) Plaintiff has not acquired an easement by grant or by adverse possession. (Nellis v. Munson, 108 N. Y. 453.) The plaintiff cannot claim equitable relief upon the ground that he had done certain acts in performance or •part performance of a contract, for the reason that according -to his own testimony there was no complete, definite and' ■proper contract in pursuance of which said acts could have been performed. (Wiseman v. Lucksinger, 84 N. Y. 31; .Cronkhite v. Cronkhite, 94 id. 323; Nellis v. Munson, 108 id. 38; Wheeler v. Reynolds, 66 id. 227; Rindge v. Baker, 57 id. 209; Fry on Spec. Pérf. § 557; Wright v. Weeks, 25 N. Y. 153.) Plaintiff never had anything more than a revocable license at most which was in fact revoked. (Wiseman v. Lucksinger., 84 N. Y. 31; Cronkhite v. Cronkhite, 94 -id. 323.)</p> <p>The fraud which would be the result of permitting defendant to remove the wall after inducing the expenditure, receiving and enjoying the benefit , thereof, etc., necessarily entitle a court of equity to prevent the defendant from depriving the plaintiff of the benefit of the expenditures made on the faith of the defendant’s promise. (Stewart v. Ahrenfelt, 4 Den. 189; Farrand v. Marshall, 21 Barb. 409; Smith v. Smith, 4 N. Y. Supp. 669 ; Freeman v. Freeman, 43 N. Y. 34; Rhyman v. Gills, 57 id. 68.) The evidence is amply sufficient to identify the wall built and its location and dimensions with “ the two feet you asked to build your wall on,” specified in the letter. (Fry on Spec. Perf. [3d ed.] 158.) The Statute of Frauds is not available as a defense. (Fargis v. Walton, 107 N. Y. 398; Rindge v. Baker, 57 id. 206; Freeman v. Freeman, 43 id. 34.)</p>

<p>Appeal from judgment of the General Term of the Supreme Court in the fifth judicial department, entered upon an order made January 23, 1891, which affirmed a judgment in favor of plaintiff entered upon a verdict and an order denying a motion for a new trial.</p> <p>The nature of the action and the facts, so far as material, are stated in the opinion.</p> <p>The limitations and restrictions of the Laws of 1847 have not been changed by section 1 of chapter 352 of the Laws of 1854, entitled “ An act in relation to the village of Canandaigua, and enlarging the powers and duties of the trustees of said village.” (Laws of 1847, chap. 426; Laws of 1851, chap. 320, § 1; Haskell v. Village of Penn Van, 5 Lans. 352; Weed v. Ballston Spa, 76 N. Y. 329 ; Mayor, etc., v. Cunliff, 2 id. 165 ; Harrington v. Corning, 51 Barb. 396 ; S. & R. on Neg. 123, 124, 345; Cole v. Trustees of Medina, 27 Barb. 218; Peck v. Village of Batavia, 32 id. 634; Hunt v. City of Brooklyn, 36 id. 226.) It appears in this case that the corporation was not instrumental in placing the grate in the "walk, nor did it give the owner any permission to.place it there. It was done by the owner for his own convenience and for the convenience of his tenants. (Dixon v. B. C & N. R. R. Co., 100 N. Y. 171.) The trustees had no notice, either actual or constructive, of any defect in the sidewalk, and without such notice no liability attaches. (Griffin v. Mayor, etc., 9 N. Y. 456; Smith v. Mayor, etc., 66 id. 295 ; Cain v. City of Syracuse, 95 id. 83 ; Hart v. City of Brooklyn, 36 Barb. 226; Peach v. City of Utica, 10 Hun, 477; McDermott v. City of Kingston, 19 id. 198; Bush v. Village of Geneva, 3 T. & C. 409; Hume v. City of New York, 47 N. Y. 639; Hunt v. City of Brooklyn, 35 Barb. 226.) The trustees are the only officers who represent the village of Canandaigua as to its streets and sidewalks, and no notice of a defect or obstruction in a. street of the village, except to the trustees, would be notice to the defendant. (Laws of 1815, chap. 254, § 2; Laws of 1847, chap. 426, §§ 25, 77.) The existence of a defect in a public street, in consequence of which a traveler sustains injury, does not, of itself, establish a breach of duty on the part of the village. (Hunt v. Mayor, etc., 109 N. Y. 134, 140, 141; Jenney v. City of Brooklyn, 120 id. 164; Ring v. City of Cohoes, 77 id. 83 ; Hart v. City of Brooklyn, 36 Barb. 226; Regua v. City of Rochester, 45 N. Y. 129, 135.) The notice must be an express notice or the defect must be so apparent and notorious and have existed for so long a time, that the proper officers of the village might, by its appearance, have observed the defect in time to have had it remedied. (Todd v. City of Troy, 61 N. Y. 506, 509; Smith v. Mayor, etc., 66 id. 295 ; Requa v. City of Rochester, 45 id. 129-139.) The defendant had no notice of the defect complained of prior to the accident. (Regua v. City of Rochester, 45 N. Y. 129, 134; Todd v. City of Troy, 61 id. 506; Smith v. Mayor, etc., 66 id. 295; Hunt v. Mayor, etc., 109 id. 134, 141; Griffin v. Mayor, etc., 9 id. 456 ; Dwight v. G. L. Ins. Co., 103 id. 341.) If the defendant could be charged with constructive notice of the defect and negligence consequent thereon, then the plaintiff is guilty of contributory negligence, and is not entitled to recover for the alleged injury. (Minick v. City of Troy, 83 N. Y. 514; Griffin v. Mayor, etc., 9 id. 456 ; Dubois v. City of Kingston, 102 id. 219 ; Bond v. Smith, 113 id. 378, 384, 385; Cordell v. N. Y. C. & H. R. R. R. Co., 75 id. 330; Young v. N. Y. L. E. & W. R. R. Co., 107 id. 500.)</p> <p>In determining whether the defendant might be charged with notice from lapse of time and other facts, actual information of the condition of the walk given to the street commissioner was a circumstance which the jury had the right to consider, and for this purpose the evidence was properly received. (Winne v. U. C. S. Inst., 37 Hun, 349-351; Peach v. City of Utica, 10 id. 477; McDermott v. City of Kingston, 19 id. 198.) Evidence which appeal’s, showing plaintiff’s condition in life, whether married or single, was properly received. (Perry v. Lansing, .17 Hun, 34.) The evidence of physical condition was incompetent for any purpose, except to show contributory negligence. It was not offered for this purpose. (Tice v. Munn, 94 N. Y. 621; 2 S. & it. on Neg. [4th ed.] § 742; Peach v. City of Utica, 10 Hun, 477-480; Davenport v. Ruckman, 37 N. Y. 568-573; Stewart v. Ripon, 38 Wisc. 584.) It was competent for Dr. McClellan, the attending physician, to state, from his observation, whether the plaintiff was suffering pain during the time he treated him for the injury. (Hagenlocher v. C. S. & B. R. R. Co., 99 N. Y. 136; Caldwell v. Murphy, 11 id. 416 ; Werely v. Persons, 28 id. 344; Matteson v. N. Y. C. R. R. Co., 35 id. 487; Nichols v. B. C. R. R. Co., 30 Hun, 437; 100 N. Y. 635.) The motion for a nonsuit was properly denied. (Conrad v. Village of Ithaca, 16 N. Y. 158 ; Storrs v. City of Utica, 17 id. 104; Hines v. City of Lockport, 50 id. 236 ; Saulsbury v. Village of Ithaca, 94 id. 27; Kunz v. City of Troy, 104 id. 344; Nelson v. Village of Canisteo, 100 id. 89 ; Todd v. City of Troy, 61 id. 506; Peach v. City of Utica, 10 Hun, 477, 479; Laws of 1854, chap. 352, § 1; Laws of 1864, chap. 257, § 1; Clifford, v. Dam, 81 N. Y. 52; Laws of 1866, chap. 597, §4; Laws of 1853, chap. 602, § 1.) The charge to the jury by the court was correct. (Childs v. West Troy, 23 Hun, 68; Deyoe v. Saratoga, 3 T. & C. 504; Rehberg v. City of New York, 91 N. Y. 137; Twogood v. City of New York, 102 id. 216 ; Higgins v. Village of Salamanca, 6 N. Y. S. R. 119; 1 Dillon on Mun. Corp. §§ 146, 207, 242, 305; Laws of 1884, chap. 308; Laws of 1874, chap. 628; 1 S. & R. on Neg. [4th ed.] § 293.)</p>

<p>Appeal from judgment of the General Term of the Supreme Court in the second judicial department, entered upon an order made February 9, 1891, which reversed a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term and ordered a new trial.</p>

<p>Appeal from judgment of the General Term of the Superior Court of the city of New York, entered upon an order made the first Monday of February, 1891, which affirmed a judgment in favor of plaintiff entered upon the decision of the court at Special Term.</p>

<p>Appeal from judgment of the General Term of the Supprior Court of the city of New York, entered upon an order made May 4, 1891, which affirmed a judgment in favor of plaintiff, entered upon a decision of the court on trial without a jury.</p>

<p>Appeal from judgment of the General Term of the Superior Court of the city of New York, entered upon an order made February 13, 1891, which affirmed a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term.</p>

the-first judicial department, entered upon an order made February 18, 1891, which affirmed a judgment, in favor of plaintiff, entered upon- a verdict directed by the court.