Volume 13 — New York State Reporter

” The action was to recover penalties for selling strong and spirituous liquors contrary to the provisions of section 13 of chapter 628 of the Laws of 1857. The verdict was for the amount of 'one penalty.

<p>1. Bridges—Rebuilding and repairing of—Chap. 639, Laws 1857, not APPLICABLE TO THE CITY OF AUBURN—TlT. 8, §§ 86, 87 AND 103, CHAP. 53, Laws 1879—Powers conferred upon municipalities as to BRIDGES, ETC.</p> <p>- The provisions of chapter 639, Laws 1857, are not applicable <o the city of Auburn. It was intended by the legislature to exempt that municipality from all the general laws of the state relative to the laying out, constructing and keeping in repair the highways and bridges within its territorial limits The general laws chapter 639, Laws 1857, in terms, are-only applicable to adjoining towns as such in which respectively the high ways and bridges are under the care and management of commissioners of highways chosen and elected in the manner provided by the statute. In this state the powers conferred upon municipal corporations in respect to streets and bridges within their limits are separate and independent of the general laws relating to the management of highways in the towns and counties.</p> <p>$. Same—Presumption as to abandonment—Failure to rebuild for TWENTY-FOUR YEARS.</p> <p>Where the approach to a bridge has been destroyed more than twenty-four years, it may fairly be presumed that the public have abandoned the purpose of rebuilding it, and the officers of the town will.not be required after this long delay to rebuild it.</p> <p>8. Officers—Commissioners of highways—Public officers not agents OF THE TOWNS.</p> <p>The commissioners of highways for the respective towns in the state are not the agents of the towns in which they are chosen, but are public officers charged with the duty imposed upon them by the provisions of the-Revised Statutes, and do not represent the town in its corporate capacity.</p>

<p>1. Evidence—Written contract—When paroi evidence to vary can be given.</p> <p>The rule that paroi evidence may not be given to" contradict or vary a •written agreement applies only to the parties to the written agreement or their privies. One not a party or privy to it is not bound by it, and may c-ntradict it by paroi. One a party to such an agreement suing one not bound by it may in like manner contradict it by paroi evidence.</p> <p>2. Same—When contract between third parties relevant.</p> <p>The defendants having taken a contract to do certain work, entered into a written contract with third parties to do a certain portion of said work and these .third parties contracted in writing with plaintiff to construct part of the work they had agreed to do. This action was brought to recover for extra work alleged to have been done by plaintiff at the request of the defendants. The extra work was caused, by certain changes in the manner of construction ordered by defendants’ engineer. II Id, that the contract between defendants and said third parties was admissible in evidence to show that the work was to be done to the satisfaction of said-engineer.</p>

<p>Appeal from the judgment of the Monroe county court entered upon a verdict in the plaintiff’s favor, directed by the court at the close of all the evidence for the sum of $498.77.</p>

<p>Appeal from a judgment entered on the report of a referee.</p>

<p>1. Action fob libel—Bill of pabticulabs.</p> <p>Where in an action for libel the defendant in his answer, after a plea of justification, gives plaintiff notice that he will offer proof of certain facts m mitigation, and especially facts with which plaintiff was entirely familiar and with which the defendant was not. Held, that the defendant will not be required to give a bill of particulars of the mitigating circumstances.</p> <p>2. Same—Fobm of affidavit—When imfebfbct.</p> <p>The affidavit upon which plaintiff moved did not state that he had no suspicion or belief as to what particular cases the defendant referred, but stated only that he had no information or knowledge on the subject. Held, that the affidavit was imperfect and that for that reason a bill of particulars could not be ordered.</p>

<p>Action to procure the distribution of an endowment fund in the hands of defendant.</p>

<p>1. Taxes and assessments—When action not maintainable to remove CLOUD ON TITLE BY REASON OP ASSESSMENT OR TO RECOVER MONEY PAID.</p> <p>There is coercion in law where the assessment is invalid, and the facts showing the invalidity do not appear in the proceedings and the assessment is paid,to remove a cloud on title, and where the facts justify it a bill will lie for the double relief of vacating the assessment as a cloud on title, and to recover money paid on the assessment; but where the defect appears on the face of the assessment proceedings, there is no cloud on the title.</p> <p>S. Same.</p> <p>Where as in this case the assessment was not even prima facie regular, and the proceedings themselves contained the evidence of their, own inva-. lidity, the payment is voluntary there being no coercion of law or fact; and an action cannot be maintained to remove a cloud on title nor can the money paid be recovered hack.</p>

<p>Appeal from a judgment of the supreme court, general term, fourth department, affirming a judgment entered upon the report of a referee.</p> <p>The plaintiff by written contract undertook to employ one Mooney as its agent for the term of five years to solicit applications and collect premiums for insurance within certain territory in the state of New York, and defined his duties in regard thereto and his commissions. It was agreed therein, among other things, that funds belonging to the company should be remitted at stated periods and that " commission will in no case be allowed upon any part of a premium before the same is collected and paid over to the said company.” It was also agreed that "for the purpose of successfully developing and establishing the agency of the company in the territory herein named, an additional commission of fifteen (15) per cent shall be allowed Mooney on premiums on all new policies placed and reported by himself or his agents in the said field during the first year of this contract,” with certain exceptions not material here, “and that for the first' six months of this contract the company will advance to the said Mboney the sum of $200 per month, which amount is to be expended in advancing the interests of the company in the territory herein named, and is to remain a first lien upon all the business and renewal interest secured to the said Mooney under this contract until repaid with interest at seven per cent per annum. It is further provided that said advance may be discontinued by the company on giving sixty days’ notice to said Mooney of a desire to do so.”</p> <p>. On bis part Mooney promised to “devote his entire time, energy and ability to soliciting applications, collecting premiums and otherwise promoting the interest of the said company. He will comply with the rules and instructions of said company, and make reports of each month’s business to the said company on or before the 10th day of the month next succeeding,. inclosing cash enough to balance such report; and as soon as practicable, will, at the expense of said agent, employ a sufficient number of sub-agents under said agent to thoroughly canvass the entire field embraced in this contract; and in consideration of this contract and of the commission to which the said agent is entitled thereby in the work of said sub-agents, will be responsible to the said company for all business done by or intrusted to the sub-agents under said agent,” and it was mutually agreed “that upon the discontinuance of this contract in any way, all interests of said agent in this contract in commission on premiums,” with certain exceptions, “revert back to the company.</p> <p>At the same time Mooney, with sureties, gave a bond to the company in the penal sum of $5,000, conditioned that he “shall faithfully discharge the duties as agent of said company so long as he shall continue to act as such agent, whether acting under a contract, express, implied or otherwise; and shall pay over all moneys belonging to the said company at such times and in such manner as the rules of the company and its officers prescribe.” Some other facts are stated in the opinion.</p>

<p>1. Contract of employment—When implied.</p> <p>When one is hired for a year and continues in the service after his term has expired without any new contract, expressly made, the first contract is renewed hy the acquiescence of the parties for another year.</p> <p>2. Same—Validity of under Statute of Frauds.</p> <p>The new contract being implied by law, is not invalid under the Statute; of Frauds.</p>

<p>1. Award of damages—Will not be disturbed when.</p> <p>An appellate court will not disturb the finding of a jury in respect of the matter of damages, they having had proper instructions on the rule of law governing that question, even though the award made by them may be too high.</p> <p>2. Cause of action—Must be clearly defined.</p> <p>A bill of charges made against both the plaintiff and defendant which does not enable those against the one to be distinctly separated from the other does not furnish the basis for an action by the plaintiff against the defendant. Daly, J., in dissenting opinion.</p> <p>3. Complaint—Statement of cause of action in different counts— Election between in discretion of court.</p> <p>Where a complaint contains different statements of the same claim it is discretionary with the trial court to compel the plaintiff to elect between them. The exercise of this discretion may be reviewed by the general term, but a new trial will not be granted unless it appears that the defendant has been prejudiced. Id.</p>

<p>Proceedings to prove an instrument purporting to be the last will and testament of Ira Dayger, late of the town of Richfield, Otsego county, New York.</p>

<p>1. Executors—Accounting—When not entitled to be allowed expenses ARISING PROM CARE OF REAL ESTATE—JURISDICTION OP SUPREME COURT TO DECREE THAT COSTS BE PAID OUT OP THE ESTATE.</p> <p>The testator by his will gave to Ms widow the use of all Ms leal and personal estate during herlife, and at her death the residue was bequeathed to Ms legal heirs. The executor named therein duly qualified and entered upon the discharge of Ms duties. At the time of Ms death, the testator was the owner of a certain farm which the widow entered into possession of and retained for part of a year, the executor receiving a large portion of the money resulting from the sale of the products of .the farm. Subsequently the widow decided not to accept the provisions of the will, but elected to take dower in her husband’s estate. She brought suit against the executor for an admeasurement of dower and for her share of the avails of said farm during the time that had elapsed since the death of testator. The personal estate of the testator was exhausted in the expenses of administration, and the real estate was sold to pay the debts. On the accounting, the executor sought to have allowed the amount of the costs' and counsel fees paid in the action, to-recover the avails of said farm as aforsaid. Held, that they could not be allowed. That it was not part of Ms duty, as executor, under the will, to take charge of, or do any act in relation to the real estate, except when it became necessary to institute proceedings for the payment of decedent’s debts. That the supreme court had no jurisdiction to decree that any portion of the costs should be paid out of the assets of the estate.</p> <p>2. Same—When executor cannot be sued.</p> <p>An action cannot be maintained against an executor in his representative capacity upon a transaction which occurred after the testator’s death.</p> <p>3. Same—Sale of real property to pay debts—What claims to be-PAID FIRST UNDER CODE ClV. PRO., § 2793, SUBD. 7.</p> <p>The executor duly published a notice to creditors, and a claim based upon a promissory note not yet matured was duly presented to the executor, and the same was disputed and rejected by him, and the objection was accompanied with an offer to refer under the statute, but the executor refused to waive the objection that the note was not yet due. After the-said note matured it was referred and judgment obtained against the executor. But the claim in question was not among those established upon the first hearing or prior to the first decree. Held, that under Code Civ. Pro., sec. 2793, subd. 7, the claimant in question should be placed on an equality with other creditors who established 'their claims on the first bearing. That she was not guilty of any loches in not attempting to establish her claim before or at the date of the first decree; it was not a debt within the meaning of the statute.</p> <p>4. Same—Costs recovered against executor upon disputed claim cannot BE ALLOWED OUT OF PROCEEDS OF REAL ESTATE—CODE ClV. PRO... § 2757.</p> <p>Where a judgment is obtained against an executor upon a disputed claim, the costs in such a judgment cannot be paid from the proceeds of the real estate. Code Civ. Pro., § 2757.</p> <p>5. Same—How proceeds of real estate can be used—Code Crv. Pro., § 2793, subds. 5 and 7.</p> <p>The money arising from the sale of decedent’s real estate can he used for the payment of no debts except those provided for in Code Civ. Pro., sec. 2793, subds. 5 and 7.</p> <p>6. Same—Executor must keep books—Expense of accounting, what ALLOWED.</p> <p>An executor should keep an account of the money received and expended in a hook kept for that purpose, and the hooks should he kept in such a manner that persons interested in the estate can inspect them at any time if they desire to know its standing or condition. On an accounting an executor will not he allowed for his own time or for the expense of counsel more than would he reasonable for time and labor spent in establishing an account made out in the manner which the law requires.</p>

<p>1. Administration—Letters of—Jurisdiction of surrogate to grant "WHEN INTESTATE WAS A RESIDENT.</p> <p>Where an intestate was, at the time of his decease, a resident of the state of New York, the surrogate of the county in which such intestate resided at the time of his decease, has exclusive jurisdiction to, grant letters of administration, without reference to the location of assets within the state.</p> <p>-.2. Same—When intestate was a non-resident, having assets .within THE STATE,</p> <p>Where a person dies intestate, who is a non-resident of the state, but leaving assets within the state, then it is the location of assets within the state which determines the jurisdiction of the surrogate’s court to grant ancillary letters of administration, and the surrogate’s court which first grants letters of administration is the one which acquires jurisdiction for the entire state.</p> <p>3. Same—When surrogate of Kings county has jurisdiction to grant LETTERS TO PUBLIC ADMINISTRATOR—LAWS 1871, CHAPTER 335—LAWS 1882, CHAPTER 124.</p> <p>The provision, in Laws 1871, chapter 335, as amended by Laws 1882, chapter 124, requiring that the person dying must leave assets or effects in the county of Kings in order to confer jurisdiction upon the surrogate’s court of said county to grant letters of administration to the public administrator, relates exclusively to the case in which such deceased person is a non-resident of the state.</p>

<p>1. Will—Construction of—Legacies—When a charge on real estate.</p> <p>Where the personal property is all disposed of by the fore-part of the will, and legacies to nearest kindred are bequeathed by the latter part, or where there is a manifest and well understood deficiency in the personal assets when compared with such legacies, so that there is no possibility of paying them, except from the real estate, the presumption of the testator's purpose to have payment made from some property, even the real estate, becomes so strong as to require little, if any, evidence of intention to charge the real estate. Cases cited.</p> <p>8. Same—What shows intention to charge legacies on real estate.</p> <p>In the case of a will where, unless it was so construed, the entire will would be without purpose or effect, and when thus construed it had an object and that object was accomplished: Held, that the payment of the legacies should be declared a charge upon the real estate.</p>

The plaintiff and defendant’s testator were husband and wife, having intermarried December 21, 1882. Two days before marriage they entered into an ante-nuptial contract, which provided that the plaintiff should be given therefor a note of $300, payable at the death of the husband, and thirty dollars March 20, 1883, and every six months thereafter during his life. This provision was to be in lieu of dower.

<p>üytdence—Competency op—Code Civ. Pbo., § 829.</p> <p>In an action brought to partition the real estate left by the testator upon the theory that the will was void by reason of the incompetency of -the testator, etc., the plaintiff, who was interested in the event of the action, was called as a witness, and asked to state the physical condition of his father (the testator), during the last year of his life, and other like questions, all of which, called for facts presumptively learned during the last year of the testator’s life, when he and witness were associated in business, residing in the same dwelling, and much of the time members of the same family. Meld, that the questions were incompetent under Code Civ. Pro., § 829. That they called for facts arising out of personal transactions or communications between the witness and the deceased person.</p>

order denying a motion for a new trial in an action upon a life insurance policy on the life of Alvin Oyrenius, in which the defense was forfeiture, etc.

<p>Appeal from a judgment and order of Oneida circuit. Verdict for plaintiff §2,532. Action of slander. Upon former appeals opinions were delivered; found, 24 Hun, 395, and 36 Hun, 149.</p>

This action was brought in June, 1886, by William W. Barse, as commissioner of highways of the tdwn of Herkimer, in Herkimer county, in the supreme court, against the Herkimer, Newport and Poland Narrow Gauge Railway company. The action is brought under chapter 255 of the Laws of 1855. The defendant is a narrow gouge .railroad company, operating and running a road from Herkimer to Poland, in the county of Herkimer.

<p>1. Highways—Right to place aeticles upon—Extent op.</p> <p>The plaint'fE’s horses were frightened by several of the defendant’s steam boilers lying between the sidewalk and the gutter in the street, and ran away and were killed, This action was brought to recover damages for their death. Held, that a person owning property next to the street has a right, temporarily, to obstruct traffic in the street when it is necessary to take property from or to his place of business, but not to use the street for the purpose of storing property to the damage of persons having occasion to use the street.</p> <p>2. OHABGE TO JURY—CoUBT NEED NOT BEPEAt UPON BEQUEST.</p> <p>The court charged that a man might set some object on the street which had no tendency to frighten a horse, and not be in fault, that he was not bound to take notice that some innocent object might cause a horse to take fright, and submitted to the jury the question whether the boilers were of such a nature as to frighten an ordinary horse. Held, that the court was not bound to repeat in other words a charge substantially the same at the request of the defendant.</p>

<p>Appeal from a judgment entered upon a verdict directed for plaintiff at the Chemung circuit.</p> <p>Defendant asked to have certain questions submitted to the jury, and excepted to the refusal.</p>

<p>Appeal from a judgment entered in Onondaga county upon a verdict of §6,000, taken at the circuit, and from an order refusing a new trial on the minutes.</p> <p>Action for injuries sustained by plaintiff while acting as coupler at East Syracuse for defendant, on. the night of March 11, 1886, when plaintiff, nineteen years of age, in the discharge of his duty lost his leg. Plaintiff had been engaged in that business for defendant from the preceding November. The accident occurred while plaintiff was endeavoring in the night to couple cars, and was walking between or beside the cars in motion, which he was attempting to couple when he slipped and fell.</p>

<p>Appeal from a judgment of conviction of arson in the third degree, entered in the office of the clerk of the county ■of Cortland, on the 20th day of February, 1886. Judgment recorded by the court of oyer and terminer of that county.</p>

<p>1. Supplementary proceedings— Conviction fob contempt of injunc= tian in—What necessary to sustain.</p> <p>In order to support a conviction for contempt of an injunction in proceedings supplementary to execution, the legal title to the property", the transfer of which, forms the contempt, must he proven to be in the accused.</p> <p>3. Sams—Proceedings bob contempt — Evidence ob ownership of property.</p> <p>In a proceeding for contempt in disobeying an injunction, the positive testimony of the defendants and their witnesses cannot be overthrown merely by the proof of suspicious circumstances.</p>

<p>Appeal from a judgment entered in Tompkins county upon the report of a referee in an action to reform a deed executed in 1884 by Titus and wife to Perry upon the consideration of $1,050.</p> <p>The land sold and intended to be conveyed consisted of certain village lots in Ithaca. The error complained of consisted in the use. of language in the words of description covering more land than was embraced in the contract of sale, according to the findings of the referee.</p> <p>After hearing the evidence offered by the plaintiff and by defendant, the referee has found the facts favorable to the plaintiff. In doing so he has given credit to the evidence of Titus instead of Perry, where they differ as to the material facts stated in the report.</p> <p>- The claims of the respective parties rested largely upon their own evidence as witnesses; either side is supported to some extent by- other evidence.</p> <p>The evidence presented a sharp and strong conflict upon the essentials of the respective claims made by the parties as to contract of sale, and the mistake in using the language of the deed.</p>

<p>Appeal from a judgment entered, in Oneida county npon a verdict ordered by the circuit for defendants. Action for trespass on lands. Defense, ownership of lands, whei’e the alleged trespass was committed. Controversy is one over the boundary lands of the parties.</p>

<p>1. Mortgage—Assignment oe—Evidence—When party b^und by recital IN ASSIGNMENT OF MORTGAGE.</p> <p>The plaintiff, pursuant to an agreement between her and the defendant Krum for that purpose, furn shed $6,01)0, with which Krum was to pay for a certain farm about to be sold, and that the plaintiff should have a mortgage upon such farm to secure the payment of the moneys so furnished by plaintiff to pay for the farm. Krum paid for Ihe farm and received to himself the deed of the farm and conveyed it to the person for whom he agreed wiili plaintiff to buy the farm for the sum of $(¡,000, and received therefor from said person his bond and mortgage for the same amount. Krum. within three days, transferred and delivered to defendant bank the said bond and mortgage The consideration expressed in the assignment < f the mortgage was $6,000 paid by the hank to Krum. There was no other evidence of the payment of such sum, or that any consideration was given, or who, other than Krum, acted for the hank (of which he was president) in the transaction. In an action brought to compel the hank to transfer this mortgage to Plaintiff this assignment was put in evidence by plaintiff. Held, that plaintiff was not hound by the recital of a consideration in the assignment. Following, Moore v. The National Dank (55 N. Y„ 41, at p. 50).</p> <p>3. Same—When in good faith for value.</p> <p>The defendant failed to give proof < n its part showing that it purchased the mortgage in good faith, or that it paid anything for it, or was ignorant of the equities between the plaintiff and Krum at the time of its transfer. Held, that the plaintiff was entitled to have the mortgage transferred to her.</p>

<p>Insurance (fire)—Policy when canceled.</p> <p>The plaintiff applied to an insurance agent for an insurance upon his slaughter-house. The agent agreed to place it at an agreed rate in the Imperial company, or, if that company would not carry it, he agreed to placo it in some other company. The agent issued and delivered a policy in the Imperial, and the plaintiff accepted and paid for it at the proposed rate. Under the right reserved in the policy said company declined the risk and. directed the agent to cancel the policy. The agent then insured the premises in the defendant company and, three days after the date of thei policy, the premises were destroyed by fire. After the fire the agent de livered to the plaintiff the policy in the defendant company and received the policy issued in the Imperial company, which had remained in the hands of the plaintiff. Held, that there was sufficient evidence to sustain, the verdict; that the policy issued by the Imperial company was canceled and the defendant’s policy in force at the time of the fire.</p>

<p>Appeal from judgment entered on the dismissal of the complaint on a trial before a jury.</p>

<p>I. Warranty—Sufficiency of proof of.</p> <p>In an action to recover damages for the freezing of certain bulbs, which were stored in defendant’s warehouse, which it was alleged defendant warranted to be frost-proof. He d, that plaintiff must prove that the defendants represented in words, or in substance at least, that their warehouse was unqualifiedly frost-proof.</p> <p>H. Same—What a mere expression of opinion.</p> <p>In answer to plaintiff’s question whether the warehouses were free and safe from frost, the defendants said they were and staled that the warehouse was as good as brick, iron and mortar could make it. Held, that there was no warranty that the warehouse was frost-proof. That there was only an expression of opinion.</p>

<p>Title—To real property—When not only doubtful, but bad— When money on account of contract for purchase and sale oak be recovered back.</p> <p>A, who held title to premises belonging to his firm, conveyed these premises, in 1871, to B, a special partner, the deed reciting that the conveyance was subject to a' mortgage of $6,000, which the grantee assumed. After the deed had been recorded, B made an agreement with the members of the firm that whatever' he realized above $30,000 from the sale of the premises, which he held as trustee, he would pay over to the others, and, if he sold it for less than that sum, without their consent, he should forfeit his claim on them for the difference. B died in 1873 and A in 1880, both leaving wills. In 1883 the agreement was recorded both as a deed and a mortgage. In 1881 the executors of B assigned all his interest in the agreement to C, who, without making B’s heirs parties to the action, foreclosed the instrument, and on the foreclosure sale conveyed the premises to defendants. Plaintiff contracted to purchase the premises from defendants, but objecting to the title as defective, sued to recover back the money paid and the expenses he incurred on account of the contract. Held, that the deed and agreement- together are not-a mortgage in form, nor did the parties thereby intend that there should be a mortgage; that B became the owner of an absolute title in fee, with absolute power of disposition, and a trustee as to the proceeds only; and that upon his death the legal title to the premises vested in his heirs, vrho could not be affected by any transfer by the executor, and the title of defendants was, therefore, not only doubtful, but bad.</p>

Appeal by plaintiff, from judgment entered on verdict for defendant and from order denying motion for a new trial made upon the minutes.

<p>Appeal from two orders.</p>

<p>Appeal from judgment entered upon verdict of jury, and from order denying motion for new trial made upon the minutes.</p>

<p>1, Contract—What constitutes a breach of.</p> <p>The failure of one party to a contract to perform some of its obligations, when it consists of independent provisions, furnishes no excuse for nonperformance to the other party. It is only when the non-performance is of a condition precedent, or where such party has wholly refused to perform or has wholly disabled himself from completing a substantial performance, that the other party is relieved from performance or a tender thereof.</p> <p>3. Same—The refusal to perform must be absolute and must be acted</p> <p>UPON TO CONSTITUTE A BREACH.</p> <p>A mere assertion that a party will not be able or will refuse to perform bis contract, is not sufficient. It must be a distinct and unequivocal and absolute refusal to perform the promise, and must he treated and acted upon as such by. the party to whom it was given.</p> <p>3. Same—When party can elect either to treat contract as broken</p> <p>or in force—Cannot elect to do both.</p> <p>The plaintiff had entered into a contract with a certain telegraph com' pony, to whose rights and obligations under said contract the defendant succeeded, whereby said company agreed for a specified time to send press dispatches for plaintiff and collect certain charges on delivery of the same, out of which charges the defendant agreed to pay the plaintiff the balance after deducting their charges for transmission at a rate which was fixed by the contract. The defendant fulfilled its part of the contract for a time, but before the contract had expired gave notice to plaintiff that it would not perform the services referred to in the contract for the compensation therein provided. Meld, that the plaintiff then had his election either to accept that notice as a refusal to perform—treat the contract at an end— and bring his action for a breach thereof, or he could proceed under the contract—hold the defendant to a compliance with its terms—and so treat it as in full force and effect; that the two positions were inconsistent.</p> <p>4. Same—What amounts to election.</p> <p>The plaintiff continued to deliver dispatches to the defendant, which were received and transmitted; he also served a notice on defendant that his contract was still in force and that he was carrying it out, which notice was received by defendant without objection, and after the receipt of such notice his dispatches were received by the defendant and transmitted, but the amount that should have been paid to plaintiff under said contract, defendant refused to pay, and plaintiff then brought an action for the amount due under the contract up to the time when it stopped business and recovered judgment therefor. Held, that this was an election to proceed under the contract and hold the defendant to a compliance with its terms, and not to treat the contract as broken or at an end; that plaintiff was bound by that election.</p> <p>8. Same—When judgment bes adjudicata.</p> <p>The plaintiff, after giving said notice, continued to deliver despatches for transmission to the defendant until, by reason of defendant’s withholding of the money due him under said contract, the plaintiff was obliged to give up business. He then brought suit to recover the amount of money collected after said notice which was due him under said contract, and for damages for the breach of said contract. The case was tried before a referee who found in plaintiff’s favor in both causes of action. The general term affirmed that part of the judgment which entitled the plaintiff to recover the money withheld, but ordered a new trial as to the part which gave damages for a breach. The defendant entered judgment in accordance with this decision and on the new trial of the second cause of action. Held, that this was an adjudication that the contract was in force up to the time that plaintiff stopped business, and was res adjudicata on that point as to the parties on the new trial.</p>

<p>Trade-mark—Union labels—Members oe union entitled to injunction to restrain improper use of labels.</p> <p>The plaintiffs were members of the Cigarmakers’ International Union. Held, that they had an interest in the proper use of the labels of the union, which might upon sufficient grounds be protected by injunction against the inequitable use of those labels.</p>

Plaqe as plaintiff, in the stead of the former plaintiff. The action was begun in the name of Barker Place, as ■executor, etc., against the present defendant. Final judgment was for the defendant. Barker Place, as executor, etc., appealed from this judgment to the general term. Before the appeal was taken, proceedings were begun before the surrogate to remove Barker Place, as executor.

<p>1. Taxes and assessments—Tax certificates—Return of money—What PURCHASER MUST SHOW.</p> <p>The plaintiff was the purchaser at a sale for non-payment of taxes of certain property in the city of New York. In an action to recover the money paid; Held, that he must show that the sale made was void; that it would not do to show that the certificate did not comply with the statute, or that the lease subsequently executed and delivered was void.</p> <p>2, Same—Remedy of purchaser where certificate does not comply WITH STATUTE.</p> <p>The remedy of the purchaser, in case the certificate'.given him does not</p> <p>comply with the statute, is to compel the delivery to him of a proper certificate, not the return of the money which he has paid for the right to have the certificate.</p> <p>S. Same—Assessment book—Meaning op being “open”.or “closed"— Laws 1859, chap. 308, § 8.</p> <p>The provision in Laws 1859, chapter 303, section 8, as to the keeping of the annual record of the assessed valuation of real and personal estate, etc., open for examination between certain specified dates, means merely that during the time designated those interested can apply to have mistakes in the assessments of property for taxes corrected. And when the said books are closed, that such application will not be received. The closing of the books contemplated by this section is not a • physical act, but is a simple limitation of the time during which those interested can apply to have mistakes in the assessment of properly for taxes corrected.</p> <p>4, Same—Effect of exacting more than was due on delivery of certificate. .</p> <p>The fact that when the certificate was given, the clerk of arrears exacted a greater sum for interest or advertising than was allowed by law, did not affect the sale.- The remedy was to insist upon the certificate being delivered on payment of the correct amount. Chapman v. The City of Brooklyn, 40 X. Y., 375, distinguished.</p>

<p>Exceptions taken by the defendant James B. Colgate on the trial to be heard in the first instance at the general term.</p>

<p>Appeal by defendants from judgment entered on verdict for plaintiff and from order denying motion for a new trial made upon the minutes.</p>

<p>Appeal from judgment entered upon the verdict of the jury, directed by the court.</p>

<p>1. Costs—Right to, under Code Civil Pro., § 8328, sued. 4—Power of Court.</p> <p>The plaintiff, in his complaint, demanded judgment for a sum of money only, but that sum was more than fifty dollars. The defendant was granted leave to serve a supplemental answer, setting up payments made after the commencement of the action. On the trial of the action, ■the plaintiff recovered judgment for $1.65. Held, that under Code Civil Pro., § 8228, subdivision 4, the plaintiff’s right to costs in such an action depends upon the amount of the recovery, not on the amount demanded at the commencement of the action. That the court had no power to grant costs.</p> <p>3. Same—Service of supplemental answer—Payment of costs.</p> <p>Plaintiff could have insisted upon his costs as a condition for leave to serve a supplemental answer.- Having failed to obtain such a provision in that order, his right to costs depends upon the amount of his recovery.</p> <p>8. Same—Practice — Stipulation between attorneys must be in writ- - ing—Rule 11 of General Rules of Practice.</p> <p>Under rule 11 of the general rules of practice the court could not enforce a stipulation that the judgment should award the plaintiff costa. notwithstanding the recovery was less than fifty dollars, unless it was in writing. An agreement outside of the proceedings in the action would not affect plaintiff’s right to costs.</p>

<p>' Appeal from judgment dismissing complaint entered upon order made at trial term before a jury.</p>

<p>Appeal by defendant from an interlocutory judgment that defendant account, etc.</p>

<p>Taxes and assessments—Exemption of school-houses under 1 Ret. Stat., Past 1, Chap. 13, Title 1, § 4, Sued., 3.</p> <p>In an action brought to have a tax assessed for the year 1882, upon a lot and building of the plaintiff, in the city of New York, adjudged void, to have the lien created thereby removed, etc. The evidence showed that at tlie time in question, the plaintiff was a Roman Catholic Church, that the ■deed to the premises stood in the name of tlie pastor of the church, but that the premises were actually in Vie custody of the Archbishop, and the money paid for it was advanced by and on behalf of the church: The premises were used as a parochial school of the Roman Catholic Church, under the direction of the pastor, and under the immediate management of certain si ,ters of the church. That upon the incorporation of plaintiff in 1885, a deed from the pastor to tlie plaintiff of the premises was executed. The children taught at tlie said school were girls of tlie parish of St. Monica, between the ages of live and sixteen, and they were taught the common branches of education free of any charge; the school was supported entirely by voluntary contributions. Held, that tlie premises were exempt from taxation under 1 Rev. Stat., part 1, chap. 13, title 1, § 4, subd., 3, as amended by Laws 1852, chap. 282, which were in force in tlie year 1882.</p> <p>2. Same—School need not be incorporated.</p> <p>The fact that the plaintiff was not incorporated in 1882, cannot defeat . the action, following Hebrew Free School v. The Mayor, 4 Hun, 446.</p> <p>8. Same—Fact that deed did not stand in name of school does not prevent its being exempt.</p> <p>The evidence established that it was a common transaction in such cases in the Roman Catholic Church for tlie deed to he made in the name of the pastor. Held, that the fact that it so stood made no difference.</p> <p>4. Same—When premises used exclusively for school purposes.</p> <p>Tlie building had, prior to 1882, been fitted up for school purposes and during tlie whole of that year it was used as a school, every floor was in ' use for that purpose, except that "the top floor was occupied and used by some of the sisters of the church ns a residence, hut tiicsc sisters while thus residing there had tlie immediate management of the school, and resided on the premises only on that account, and their residence did not constitute a source of revenue or profit to the plaintiff. Held, Unit tlie entire premises were used exclusively for school purposes within the meaning of the statute.</p>

<p>Appeal from order adjudging the defendant guilty of contempt for a refusal, and neglect to obey and perform the judgment in this action, and committing him to the-county jail, there to be kept and imprisoned until he shall pay the tine imposed by the order, and costs, and do and perform the matters and things required in and by tho judgment.</p>

<p>Appeal by defendant from a judgment in favor of plaintiffs, entered upon the report of a referee.</p>

<p>New York Stock Exchange — Proceeds prom sale of membership — Injunction against disposing of proceeds—When improperly , GRANTED.</p> <p>Under the constitution of the New York Stock Exchange " if any suspended member fails to settle with his creditors * * * within one year from the time of his suspension, his membership shall be disposed of by the committee on admissions, and the proceeds paid pro rata to his creditors in the exchange." In an action brought by the plaintiff as receiver of a former member of said exchange, whose seat had been sold, it was. alleged that fictitious claims against his assignor had been filed with the committee, and an accounting was asked, and during the pendency of this action the defendant and all the officers and members of said exchange, having custody or control of said fund, were enjoined from in any way disposing of or parting with any portion of said fund. Held, that the injunction infringed the right of the committee on admissions to proceed in a proper way to make proper disposition of the fund; that it was error to grant it.</p>

<p>Gourt Fees—Hot returnable on discontinuance.</p> <p>The provision of the old Code of Procedure requiring the payment of a fee on tiling a note of issue, is still operative, and the money paid should not be refunded though the action be discontinued.</p>

<p>1. Fraudulent representations—Action for damages—What necessary TO SUSTAIN.</p> <p>This action was brought to recover damages sustained by the plaintiff bv reason of false representations made by the defendant concerning the value of land upon which she loaned money, and took a mortgage for its security. Hdd, that while a mere opinion expressed by one person to another as to the value of property would, if mistaken, create no liability on the part of the person expressing it, yet the law would not exonerate him if, knowing the opinion to be unfounded, he expressed it with the purpose of deceiving tile other pa: ty to his prejudice.</p> <p>3, Same—Intent to deceive is an essential element.</p> <p>The essential ground of liability in an action for fraud is the intent to deceive by false and fraudulent representations.</p> <p>3. Same—Intent to deceive may be inferred.</p> <p>The intent to deceive may be inf erred.from the fact that the representations made are known by the person making them to be false. It is for the jury to determine under the evidence whether that inference is legitimate or reasonably supported in the case, but the law does not infer that to have been the intent of the party.</p>

<p>Appeal from order granting new trial upon the ground of newly discovered evidence.</p>

<p>, Appeal from judgment entered at special term.</p>

<p>1. Evidence—Contradictory statements made by witness on different-trials OF THE SAME ISSUE—EFFECT OF TO BE DETERMINED BY JURY.</p> <p>The paper which was presented for probate as the will of the testa-</p> <p>trix, was drawn and witnessed in the state of Hew Jersey. She died leaving personal property in the county of Hew York, and on that fact proceedings were taken before the surrogate of that county, for the proof and establishment of the paper as a will, by whom it was admitted to probate. Upon appeal from this decision it was held by the general term, that the evidence was insufficient to prove that the paper had been signed in the presence of the two witnesses who had subscribed it in that capacity. The decree was reversed and a trial directed to take place at the circuit upon issues comprehending the questic ns of fact arising in the case. Upon the latter trial, one of the witnesses, instead of testifying as she did before the surrogate to her absence from the room in which the will was drawn, for portions of the time while the decedent was in the act of writing it, said that she was not so far out of the room as to prevent her from seeing the testatrix in writing the instrument. Held, that while this was a suspicious circumstance in the case, having a tendency to discredit the evidence of this witness, it was still for the "jury to determine and decide how far it might properly be attended with that effect.</p> <p>2. Wills—Execution of under Hew Jersey statute—What not sufficient AS ACKNOWLEDGEMENT OF SIGNATURE.</p> <p>The instrument was not subscribed by the testatrix, but her name appeared in the first line. She said according to the evidence “ this is my will, take it and sign it.” Held, that this was a sufficient satisfaction of the Hew Jersey statute requirement that the testatrix should declare the instrument as her last will and testament in the presence of two witnesses, but did not comply with the direction that the will should be signed in the presence of the witne ses or therignature acknowledged in their presence as there was no express acknowledgment of the signature.</p> <p>8, Address to jury—Counsel have no right to refer to points not in EVIDENCE.</p> <p>Counsel have no right to refer to matters not included in the evidence to prejudice the jury against one or the other of the parties to a legal controversy.</p> <p>4. Surrogate’s court—Reversal of decree—Re-trial of issues of fact.</p> <p>Where a decree of the surrogate has been set aside by the general term, as in this case, the contested facts shall be tried by a jury, and where, for any reason, the verdict of the jury is to be set aside, the case must be submitted to another jury for the hearing and decision of the issues.</p>

<p>Action—Settlement of—What will not avoid.</p> <p>This action is founded upon an undertaking executed by the defendant to procure the removal of a case from the district court to the court of common pleas. Succeeding the judgment obtained in the court of common pleas an agreement was made by this plaintiff whereby a sum was to be received by him in satisfaction of this an 1 another judgment, a part of which was to be paid on the execution of the agreement; another by a note payable in three months, and the remainder by a note payable in six months. This seitlement, it was provided, should be void if either of the notes should not be paid, and the amounts received thereon, or on the notes at any time thereafter, should be received as payments on account of the judgments. Held, that it was the duty of the holder of the notes to seek the judgment debtor at the pl-.ce designated as the place of payment at the time when it Was to be expected as a part of the contract, that he would be present and prepared to respond to hi-; obligations, and that failure of this, and of any notice requiring payment, the settlement was not avoided by the non-payment of the note.</p>

<p>. Appeal from judgment entered upon a verdict in favor of plaintiff, and from order denying motion for a new trial.</p>

<p>Contracts—Specific performance—Will not be decreed where contract is uncertain in its terms.</p> <p>A court of equity will not decree specific performance of a contract unless it is certain in its terms, or can be made certain by reference to such extrinsic facts as may, with the rules of law, be referred to to ascertain its-meaning.</p>

<p>1. Principal and agent—Proceeds of sales of property made by an agent.</p> <p>An agreement was entered into by the pláintift and one of the defendants which was afterwards so modified as to include the other defendant upon his joining in business with the first. By the terms of this agreement the plaintiff gave him the agency of its goods in the city of New York to have their exclusive sale in that and the adjacent cities, and the control of all the export trade secured by himself. The goods were to he billed to him at thirty-five per cent from the list, with an additional discount of five per cent for all cash received within thirty days from the dates of the sales made by him. He was to receive the goods as the plaintiff’s, keep them insured for it, bill them on its printed hill heads and remit all moneys and checks due to it. By the tenth of every month he was to send a complete, business-like statement of the preceding month, distinguishing each kind of goods sold, and whether for cash or charged, and the amounts received and owing, with the names of the parties. The sales were to be made for cash or on fixty days time, and, wnere he thought best, he was permitted to accept notes for ninety days. Held, that under this agreement the plaintiff continued to be the owner of goods sent forward until they were actually sold, and that when the sales were made the proceeds, accounts or notes obtained from them became the property of the plaintiff.</p> <p>8. Same—Contract op agency.</p> <p>A further agreement was made between the plaintiff and defendants, In the first paragraph of which the business was designated as the plaintiff’s New York agency, and it was stated that the business was to be carried on as previously. After certain provisions, made between the parties, it was provided that in all subsequent settlements the method to be pursued was as follows: That by the thirteenth of every month the defendant should remit the amount of money received in settlement of all accounts up to the last day of the preceding month, and that for the balance of all outstanding accounts, less §1,000, the defendants should send their four months'note, with interest, after sixty days, added at seven per cent, and it was stated that $1,000 left out was for the protection of the defendants against loss in the management of the agency account. Held, that, from this part of the agreement, it was clearly to he inferred that business was, in other respects, to be carried on under the preceding agreement.</p> <p>8 Same—Ownership op proceeds op sale not apeected by notes given TO THE PRINCIPAL BY THE AGENT.</p> <p>Held, the giving of the defendants’ notes in the monthly settlement of accounts was not a payment or satisfaction precluding the plaintiff from afterward recovering the purchase price for the property itself, and t at it was at liberty, on surrendering and returning the notes, to follow the proceeds of the property and recover the indebtedness created by its sales.</p> <p>4. Same—Proceeds may be followed into hands op agents op assignee.</p> <p>Hid, that such proceeds could he followed in the hands of an assignee so far as they were capable of being identified and traced.</p>

<p>1. Attachment—Affidavit in support of must state facts constituting GROUNDS FOR.</p> <p>An affidavit used as the basis of an application for an attachment stated the defendant had assigned, disposed of, or secured his property, with intent to defraud his creditors. Held, that the truth of the charge made could not he assumed upon its mere general statement, but must he supported by facts.</p> <p>8. Same—What is sufficient to sustain.</p> <p>Held, that the attachment could not he sustained by proof of the defendant having made misrepresentations as to the extent of his liabilities and the subsequent execution by him of a general assignment.</p>

<p>1. Referee’s report—What parties entitled to notice op filing— Right to review report continues until service of notice.</p> <p>A reference was directed in the first instance for the referee to take proof and report amounts to be distributed to the parties to the action, arising from the sales of real property sold in three actions of partition, in which the appellant was entitled to participate. After the order was made directing the reference, the subject of inquiry was so far enlarged on motion of attorney for the defendant, as to direct the referee to take proof of any or all judgments against the plaintiff, or any of the defendants in the action, or against the executors of the will of Nathan 0. Platt, or any of them, or against the person appointed receiver of the estate, after the removal of the executor. And proof of such judgments was under the authority of the order taken by the referee. The result in part of such proof was to establish the recovery of a judgment against the executor, and afterward against the receiver of the estate in favor of the respondent, part of which had been paid, and one-quarter of the amount unpaid with interest was directed by the refer e to be paid out of the distributive share of the estate. Held, that in proceedings of this general description, formal notices of appearance were not ordinarily to be served, but the parties in interest are all required to be brought into the proceeding. And where it is contested by them, and they may be injuriously affected by the decision, they are each entitled to an opportunity in some form, to except to the report which may be made, and to present their exceptions for consideration and decision on the application for its confirmation. That until such opportunity has been afforded by notice, the report can not regularly be confirmed against a party whose interests are to be affected or disposed of by it.</p> <p>2. Same—Rule requiring notice of filing must be observed in order TO CUT OF A RIGHT TO REVIEW.</p> <p>Held that the rule requiring notice of the filing of the report of the referee must be observed with reasonable strictness before the party who is to be affected shall be held to have lost his right to except to and review the decision made agains, him.</p> <p>3. same—Under what circumstances right to review continues.</p> <p>Held, that the appellant having been made a party to the proceeding was entitled to notice of the filing of the referee’s report, and that such notice not having been served on him he was entitled to file and insist upon his exceptions against the report of the referee, so far as it directed the payment of one-fourth of the judgment from his distributive share of the proceeds of the real property.</p>

<p>Appeal from a judgment recovered on trial before the court without a jury.</p>

<p>Appeal from judgment entered on verdict directed at circuit.</p>

<p>Appeal from judgment entered on verdict directed by the court.</p>

<p>Appeal by both plaintiff and defendants from a judgment of the special term. '</p>

<p>Contract—Building contract — Mortgage to secure final payment —When due.</p> <p>John 0. Tomlinson owned a lot of ground which he was to'improve by the erection of buildings. He arranged with Nolan to convey the property to Purdy who would contract with Nolan for the buildings. Such a conveyance was made. The contract between Purdy and Nolan provided for the payment of the price up to the sum of $30,000, and the residue it was-agreed should be paid out of a permanent loan to be obtained upon the property. JGelA, by this contract it was contemplated that the final mortgage should only be given when the buildings were completed.</p>

<p>Contracts—Construction of—Agreement not to carry on business WITHIN A CERTAIN TERRITORY—INTERPRETATION OF.</p> <p>The defendant, operating a livery stable, sold the business to the plaintiff, and agreed not to be engaged or interested in any way in a stable for the boarding of horses, for road or carriage purposes within a certain territory. It was understood that he should be at liberty to be interested in a stable for the sale and board of saddle horses only. He did board horses for the saddle, and these horses were at times driven from the stables and back again, but only occasionally. Held, the evidence showing that the defendant was acting in good faith, that this did not constitute a breach of the contra't. The driving of horses only occasionally was not a violation of the provisions of the contract.</p>

<p>1. Replevin—Rule regarding the right to bring action on.</p> <p>When a party sends tickets to another for sale, and the latter places them in the hands of his agents for that purpose, the owner of the tickets may maintain an action of replevin against the party to whom he sent them, for their recovery, in case return is not made upon demand, but this rule does not hold where the understanding is that the sub-agents act on behalf of the owner in making the sales.</p> <p>8. Same—When action will not lie.</p> <p>The agreement being such that the party to whom the tickets were sent could net be held liable for conversion in case of his not complying with a request for their return, an action of replevin cannot be maintained against him.</p>

<p>1. Stay—In Divorce suits—Power of court.</p> <p>The court has power, where cross actions are pending, to stay the trial of one until the other has been disposed of, where both suits involve the same legal grounds of controversy. The action' first brought will ,be stayed where the suit subsequently commenced was delayed by the act of the defendant in evading service, and the issues in that suit have been framed so as to be tried in advance of the first suit.</p> <p>3. Same—When stay should be ordered.</p> <p>Where the defendant began suit by substituted service of the summons and complaint on this plaintiff, on May tenth, under an order made May ninth, but the papers were not filed until May eleventh, so as to perfect the service, and on May tenth, the summons in this action was personally served without a complaint. He'd, that the proceedings in this suit should be stayed until the other action was tried.</p>

<p>Appeal from a judgment entered on the dismissal of the plaintiffs’ complaint at the circuit.</p>

<p>1. Fbaud—When intent is immatebial.</p> <p>Where the inducement to release a party from his obligations to another is a belief entertained on the part of the latter that a certain patent is included in an assignment made by the party upon •whom the obligations rest, and that belief is induced by statements made by him to that effect but subsequently found to be untrue, it is immaterial whether the intent of the party who made the misrepresentations was fraudulent or not.</p> <p>2. Appeal—When bindings op pact will not be deceived.</p> <p>When a case made upon appeal does not show that all the evidence bearing upon the findings of fact made by the trial court is included, therein, an appellate-court will not pass upon a claim made that any particular finding is against the weight of evidence.</p>

<p>Appeal from judgment entered on a verdict at circuit, and from order denying motion for new trial.</p>

<p>Corporations—Officers—Liability of treasurer on the failure of THE FIRM WITH WHOM HE HAS DEPOSITED THE FUNDS OF THE CORPORATION.</p> <p>Henry and Edward Morgan composed the firm of M. Morgan’s Sons, and were the financial agents of t’’e plaintiff company. In 1884 the firm of M. Morgan’s Sons failed and made an assignment without preferences, and at the same time the individual members of the firm made assignments, all of which were made to the defendant The books of the firm show a large indebtedness to the plaintiff, and the debts of the firm being-large, the creditors would receive but a.part of their claims, while the debts of the individual members were small and would be paid in full Henry Morgan had been for a long time the treasuier of the plaintiff company, although remittances were made through M. Morgan's Sons, and the account with the plaintiff stood in the name of the firm. Held, the company is entitled to be paid its claim out of the individual estate of Henry Morgan. That the firm was merely a depository, and he was individually liable for the default of his agents with whom he deposited the funds.</p>

<p>Appeal from a judgment recovered on the report of a referee.</p>

<p>Motion for judgment upon a verdict rendered at circuit in favor of plaintiff, the exceptions taken during the trial having been ordered to be heard in the first instance at general term and the judgment in the meantime suspended.</p>

<p>Appeal from a judgment entered upon a report of a referee.</p>

The plaintiffs are judgment creditors of the defendants George D. Nichols and Allan I. Clark. Their judgments were recovered in February, 1886, and executions against the property of the judgment debtors were returned unsatisfied before the commencement of this action. On the 21st of January, 1886, the judgment debtors made a general assignment to the defendant William P. Dixon for the benefit of their creditors.

<p>Discontinuance—Stipulation of counsel—Effect of stipulation to discontinue AN ACTION AFTER JUDGMENT.</p> <p>A stipulation to discontinue an action after judgment would, of necessity, deprive the judgment of all its weight or support as a judgment between the parties, and the plaintiff is entitled to have the judgment vacat d as a consequence of the discontinuance of the action under the stipulation.</p>

• Appeal from a judgment of the .special term overruling the plaintiff’s demurrer to portions of the defendants’ answer, and dismissing the complaint with costs, The demurrer is as follows: The plaintiff demurs on the-ground that it is insufficient in law upon the face thereof to the defense consisting of the new matters contained in the answer in the following passage thereof, .or so much thereof as constitutes the said defense, viz : that there has been no breach of the…

<p>Appeal from order of reference.</p>

<p>Appeal from a judgment and order sustaining a demurrer.</p>

<p>Appeal by both parties from a judgment entered upon a verdict in favor of the defendants.</p>

<p>Appeal from a judgment dismissing the complaint.</p>

<p>Appeal from judgment in defendant’s favor, entered upon the dismissal of the complaint by the court at the trial.</p>

<p>Practice—Renewal op motion—Leave must be first obtained.</p> <p>Without leave to renew a motion having been granted, a judge has no right to entertain a motion which is virtually a review of an order previously made by another justice in the same action.</p>

<p>Partnership—Dissolution of—Action for an accounting.</p> <p>When a co-partnership has been dissolved, and the accounts are unsettled, an action in equity, for an accounting to settle the rights of the parties, is proper.</p>

<p>Appeal from an order denying motion to strike out part of an amended answer as sham, and for judgment on the-rest of the amended answer as frivolous.</p> <p>Appeal from an order denying a motion for a settlement of the above mentioned order.</p> <p>Appeal from an order denying a motion for a re-settlement of the last above mentioned order.</p>

<p>1. Pleading—Supplemental complaint—Office of.</p> <p>The office of a supplemental complaint is to bring before the court material facts which have occurred since the service of the original pleading and only such should be contained therein.</p> <p>8. Same—Matters inadvertently omitted from original complaint CAN ONLY BE BROUGHT IN BY AMENDMENT.</p> <p>If a party desires to insert in his pleading allegations which may have been inadvertently omitted in the preparation of the original, such omission can only be cured by an amendment.</p>

<p>Appeal from an order vacating an attachment.</p>

<p>Trusts—Trust Deed—Construction of.</p> <p>Augustus Embury conveyed to certain trustees, a piece of property upon trust, to collect and apply the rents, etc., to the use of his wife during her life and at her death to divide the estate into six equal parts, and to collect and apply the net rents, etc., of each share to the use of the respective beneficiaries. It was declared that upon the death of either beneficiary, the trust as to him or her should cease, and the part should go to the lawful issue of each, per stirpes, etc. The trustees were given a power of sale, and, also, power after the death of his wife to convey to each son in their discretion the fee simple in one-sixth of the said real estate. -Mrs. Embury died April, 1887, and Pauline Embury, one of the beneficiaries, died intestate in May, 1884, leaving a child. Previously, in November, 1881, the trustee uniting with Mrs. Embury conveyed to Clarence U., one undivided sixth, free and clear, from the trust created by the trust deed and subject only to the trust created for the life-time of Mrs. Embury. Subsequently in May, 1887, the trustees sold the premises under the trust deed to Gallo and Karlen, who refused to complete the title. Held the trustee; could not give a good title. The deed of one-sixth to Clarence U. Embury was valid under the terms of the trust and by reason of Pauline Embury’s death before her mother, her interest in her share vested in her issue</p>

<p>Appeal from order denying motion to vacate attachment.</p>

<p>Appeal from judgment on verdict.</p>

<p>1. Witnesses—Contradiction of—Effect upon their credibility.</p> <p>When witnesses are contradicted their testimony is not required to be a solutely rejected, but it may be received and acted upon, if notwithstanding the contradictions presented, it appears to have been candidly and truthfully given by the witnesses, And to the end of determining, whether it has been so given or not, the court is required to consider their appearance, their manner of testifying and the general probability of their statements. And if no unjustifiable degree of dependence has been placed upon these advantages, possessed entirely by the trial couit, its determination as to the weight of evidence cannot be set aside or disregarded on an appeal from a judgment depending upon it;</p> <p>3. Fraudulent conveyances —Assignments — Omission of assets fbom the schedules—Effect of.</p> <p>When property of the assignors is omitted from the schedules made and filed after the execution of the assignment, as the schedules followed, they were not connected with making and delivery of the assignment, the omission is not absolutely entitled to be attended with the effect of evincing a. fraudulent intent in the making and delivery of the assignment. This is a circumstance, however, to be considered as having a. bearing upon the probability of the assignment being fraudulently made.</p> <p>8. Assignment for the benefit of creditors—Effect of upon property SITUATED IN THE STATE OF NEW JERSEY—INTERFERENCE BY THE ASSIGNORS WITH ASSIGNED ESTATE AFTER THE MAKING OF THE ASSIGNMENT—Effect of. when done in good faith.</p> <p>. One of the members of the insolvent firm was the owner of real estate situated in Jersey City, in the state of New Jersey, and continued to be such owner to and including the time when the assignment was made. This property was not taken possession of by the assignee, but was afterward conveyed by deed to one Brill, to whom the firm was indebted, with the understanding that he should convey the property to one Lamberth, to whom the firm was also indebted, retaining money sufficient to pay his-indebtedness. Lamberth was to retain sufficient to pay himself and then return the surplus to the original owner. Held, that the construction given to the statute of New Jersey has been considered as invalidating assignments made in this state by insolvent debtors as to property owned within the state of New Jersey, proceeding on the legal rule *hat the state in which real or personal property may be situated, is not only invested with the authority of prescribing the manner in which it may be assigned - or transferred, but of prohibiting that from being done in any other manner; but that .the recent decisions in New Jersey have held its policy to be to invalidate assignments made in other states only in favor of creditors in the state of New Jersey. Held, that this change in the tenor of the decisions in the state of New Jersey affecting the construction of the statute does not require this assignment on that account to be set aside, for the assignment was broad enough to include any real estate situated in another state, and such interference, succeeding the execution and delivery of the assignment previously made will not render the assignment fraudulent or void, especially as such interference was done in good, faith.</p>

<p>This is an application to review the proceedings of the police commissions in dismissing the relators from the office of captain and placing them upon the police pension-roll because of their having arrived at sixty years of age.</p>

<p>Appeal from a judgment of the special term.</p>

<p>Appeal from judgment entered upon the verdict of a jury directed by the court and from an order denying motion for a néw on the minutes.</p>

<p>1. Sales—Purchase with notice or rights of third parties—Effect of.</p> <p>Where a purchaser has knowledge of any fact sufficient to put him upon inquiry as to the existence of some right or title in conflict with that he is about to purchase, he is not a bona fide purchaser and buys subject to the claim of which he had notice.</p> <p>8. Partnership—Share in profits as salary—Dabs not constitute a PARTNERSHIP.</p> <p>Where one’s interest in the profits is clearly as compensation for services rendered, this participation does not constitute a partnership.</p>

<p>1. Carriers—Freight—Advances made to carrier on account of freight—When cannot be recovered from consignee.</p> <p>One Henry Mansfield was the master and owner of a boat which received a cargo of lumber in Canada, to be transported and delivered to defendant as consignee at Albany upon the payment of the freight at the rate specified in the shipping bill. While the boat was lying in Montreal there was paid, or advanced to said master, the sum of $135, which was endorsed on the shipping bill. When the boat and cargo reached Whitehall, in the course of its voyage, the master applied to plaintiff to advance him $110 upon the freight, which he did, and the same was endorsed upon the bill of lading, and notice thereof given to the consignee. A few days after the receipt of this money, and while the boat was still lying at the dock in Whitehall the master abandoned the boat and cargo and refused to proceed farther. One Heustis, who had sold the boat to said Mansfield, and who had not been fully paid the purchase price, upon being informed of the desertion, and upon the master’s refusal to proceed with the boat and cargo, took the same at his own expense and delivered the cargo to the consignees upon their paying him the balance of freight after the fiist advance upon account of it, and upon his indemnifying them against the claim of plaintiff upon the freight for his advancement. Held, that when the carrier refused to complete the contract upon his part he had no right to recover any sum whatever for freight.</p> <p>2. Same—Right of assignee of freight.</p> <p>It was competent for the assignee to complete the transportation, or to hire or pay any one what was necessary for so doing and as against the original carrier to charge him or his freight the necessary expense thereof.</p> <p>S. Same—Right of the consignee of the goods.</p> <p>The consignee had the right to have the cargo carried and delivered at the contract price, and he had the right, when the contract was abandoned by the carrier, to expend what was necessary to complete such carriage and delivery and to charge such expense to the carrier, or against his claim for freight, or to any one claiming any right to freight derived from the carrier.</p>

<p>Motion for reargument.</p>

<p>Motion by defendant for new trial on the minutes.</p>

It is practically conceded that the plaintiff is entitled to recover $250 from the defendants on the undertaking executed by them, less $107.65 paid on account of such liability, leaving $142.35 due, with $5.60 interest thereon, aggregating $147.95. The contention is whether the defendants are entitled to their counterclaim. The defendant Donovan recovered a judgment in this court against, the plaintiff, May 5, 1886, for $867.31, on which there is now due $729.66.

An action was commenced in one of the district courts by Pauline Kopp, one of the defendants herein, against the plaintiff for the claim and delivery of a piano of the value of $200. _ The plaintiff in that action gave the usual undertaking, in which the defendants “jointly and severally undertake, pursuant to the statute in such case made and provided for the prosecution of the action, in the sum of $400, for the return of said chattel to the defendant, if possession…

<p>Decision on motion to set aside examination of witness for alleged error of referee in excluding counsel from the room.</p>

<p>Guaranty—General and special—Distinction.</p> <p>A guaranty addressed “to whom it may concern," is in the nature of an open letter of credit. When it accompanies a negotiable instrument, it is evidently intended to give the instrument currency, and any person who advances money on the faith of it may enforce payment from the guarantor.</p>

<p>Contract—Employment of deputy United States marshal by bondsmen TO RECAPTURE RUNAWAY PRISONER.</p> <p>One Bulter, alias Byrne, was arrested under process from the federal court, for using the United States mails in furtherance of a sawdust swindling scheme. He was held for trial by a United States commissioner, bail being fixed at $2,500. The defendants became the bondsmen. Butler afterward ran away, and the bail bond was forfeited. The defendants thereupon employed the plaintiff, who was then a deputy United States marshal, to recapture the fugitive, and agreed to pay him $500 for his labor and expenses if he succeeded. The plaintiff secured the fugitive, who was brought before the United States court, where he pleaded guilty and was sentenced to prison The bail bond was, thereupon, canceled and' the sureties released. Held, that the acts of the p.aintiff were not performed nirtute officii, but as an individual under authority conferí ed in writing by the defendants as bail. That the bligation was not exacted by the plaintiff colore officii, but was executed by the defendants voluntarily for their special benefit, and that they were fiable for the promised reward.</p>

<p>Set-off—Attorney’s rights as equitable assignee.</p> <p>Where an attorney, employed to defend an action, agrees with his client that the costs to be awarded in the action are to belong to the attorney as compensation, set-off will not generally be allowed, nor will it be allowed where the claim sought to be set-off against the costs is for moneys advanced by a surety to the defendant in the original action on joint and partnership account, and an action for the accounting is pending in another court between the surety and such defendant to determine the state of the accounts between them.</p>

<p>Hew Trial—Motions for—Discretionary—When will be affirmed ON APPEAL.</p> <p>An order granting a motion for a new trial upon the minutes of the trial judge, is a discretionary order, and such order will he affirmed on appeal, where the record discloses a case for the exercise of a sound legal discretion upon one or more of the grounds specified.</p>

<p>1. Sleeping cab company—Duty and liability of—Negligence.</p> <p>The duty of a sleeping car company to its guests does not extend to keeping in actual view of its servants me person and clothing of the passengers during the night, and in case of theft it is liable for negligence only 1 y reason of fa lure to continuously watch the passageway and the berths from the outside, ar.d to prevent any intrusion or larceny which could be detected by such continuous watching.</p> <p>2. Same—Evidence—Sufficiency of to make case of negligence.</p> <p>Proof justifying the inference t: at the porter of the sleeping car blackened boots during the night is not sufficient, standing alone, to make out a prima facie case of negligence for failure to properly watch the car and guard the effects of passengers from theft.</p> <p>3. Same—Declarations of servakt.</p> <p>Declarations of a servant relating to a past occurrence not uttered in the discharge.of a present duty towards his master, arising directly from such employment, are not legal evidence as admissions against the master.</p>

<p>Appeal from a judgment in favor of plaintiff, entered on the verdict of a jury, November 25, 1887, and from the order denying a new trial herein.</p> <p>[No such order, however, appears in the case and exceptions on appeal, upon which such appeal was heard.]</p> <p>This action was brought to recover six months rent of premises No. 1 East Seventeenth street, from May 1 to October 1, 1887, at $2,400 per annum, payable monthly in advance.</p> <p>The defendant, on the 4th day of May, 1886, hired from the plaintiff, by an agreement in writing and under seal, the store No. 1 East Seventeenth street, New York city, then occupied by defendant, for the term of one year from May 1, 1886, at the yearly rent of $1,800, payable monthly in advance. (Plaintiff’s exhibit No. 1.)</p> <p>R. D. Harris, the attorney for the defendant, became surety thereon for the punctual payment of the rent and performance of the covenants therein.</p> <p>Defendant took possession under said lease and still remains in possession thereof; the said R. D. Harris, acted for the defendant and by his authority in all defendant’s relations with the plaintiff concerning the premises.</p> <p>Prior to January 31, 1887, plaintiff wrote to said R. D. Harris, “ asking what Mr. Philbin proposed to do for the next year, and stating he would be willing to rent the store, providing the rent would be $3,600.”</p> <p>R. D. 'Harris on January 31, 1887, replied to said letter and stated therein as follows: “ Your note of some days ago received, I can only say that Mr. Philbin does not desire the store for another year for any such price as you named in your letter.”</p> <p>On April 22, 1887, said Harris again wrote to the plaintiff a letter in which he inquired: “Have you rented your place? If not, upon what terms will you consent that he (Philbin), remain for a month or six weeks? Please answer before Wednesday next.”</p> <p>Plaintiff on April 28, 1887, received a telegram from said Harris, as follows: “Do I understand that you insist upon premises being vacated on May first. I await for answer to my letter.”</p> <p>On the same day, April 28, 1887, the plaintiff sent a telegram to Harris, as follows: “Yours just received. Will not rent for short term. Price by year, $2,400.”</p> <p>On May third plaintiff called at the office of said Harris to collect the rent then due, which was not paid, on which day, and, also, on the following day efforts were made by the said Harris in an interview with plaintiff and with his attorney, Mr. Morrison, to effect a compromise as to the amount of rent, which efforts were unsuccessful.</p> <p>On May 6, 1887, plaintiff wrote a letter to said Harris in which he stated as follows: “To save time and unnecessary correspondence, I will say that I positively refuse to rent the store for any shorter term, than one year and that the lowest rent will be $2,400 per year.”</p>

On the 8th day of November, 1886, Charles A. Thompson received from the plaintiffs $500, and at the same time the plaintiffs received from Thompson the latter’s note for $1,000.

<p>Appeal from judgment entered December 27, 1887, dismissing the plaintiff’s complaint.</p>

<p>Appeal from a judgment in favor of plaintiff entered on a verdict of a jury May 13, 1887, and from an order denying defendant’s motion for a new trial.</p> <p>The complaint alleges that defendant,' a foreign corporation, on or about January 19, 1887, at the city of New York, made its check for value on the German National Bank of Newark, New Jersey, requiring said bank to pay to plaintiff or order the sum of $333.33; the presentation, non-payment and protest thereof, and notice to defendant; and that the whole amount, $333.33, and protest fees $1.50 and interest, remains unpaid.</p> <p>The answer admits the making of the check, and alleges no consideration, etc ; that plaintiff, on or about January 19, 1887, agreed to rent and to deliver to the defendant possession of part of a store No. 57 Beade street, New York city, and agreed to give defendant possession thereof on January 20, 1887, for the period commencing on said date and ending May 1, 1887; that defendant, upon the faith of said agreement, made and delivered said check to said plaintiff; that plaintiff refused and wholly failed to deliver said premises or said possession to the defendant, and has retained and kept possession of said premises, and has failed and refused to perform said agreement.</p> <p>The defendant claimed and was allowed by the justice presiding at the trial the affirmative of the issue.</p> <p>It appears from the evidence herein that an interview took place in the early part of January, 1887, between the plaintiff and Herman Holtz, the treasurer of the defendant, and acting under the authority of the defendant, at which interview an agreement was entered into, whereby plaintiff rented and the defendant hired a portion of the store No. 59 Reade street, from the 20th of January until the 1st day of May, 1887, at the rent of $333,33, payable in advance; that there were at the time of renting two counters in the store, one of which was to be taken out, and one was to remain in the center of the store; that possession was to be given the next day, January 20, on which day the check was given; that Holtz did not go to the premises until January 26; that defendant did not demand possession of the premises because he, Holtz, as he testified, “found out that Mr. Haines had no "lease of the place; Mr. Jordan, to whom the place was leased, said he didn’t believe that the landlord would transfer the lease to Mr. Haines, and on that account I stopped payment of the check.” It also appeared that there had been no change in the store, at least that the counters had not been removed up to about the 1st day of April.</p>

<p>Bonds—Coupons—Rights of holders op coupons—Waiver op default.</p> <p>Certain bonds of the defendant corporation referred to a mortgage given to secure them, and further provided, that '"in case of default in the payment of said interest when due, continued for ninety days thereafter, the principal of this bond will thereby become due and payable upon and subject to all the conditions provided in the mortgage deed hereinafter mentioned.'’ The mortgage provided among other things, that a majority in interest of the holders of the bonds may, by an instrument in writing, signed by such majority, and filed with the trustee, waive the right to consider the principal due, by reason of such default, on such terms and conditions as such majority shall deem proper. A large majority of the bond holders entered into a scheme (but no written instrument was signed), by which the interest was reduced and a new mortgage, in place of the one hereinbefore referred to, was executed. The plaintiff refused to enter into this scheme, and the interest not being paid at the old rate this suit was brought. Held, that the adoption of the scheme aforesaid, by a large majority, amounted to a waiver of the right to consider the principal due by reason of such default, especially as the trustee (who was the same in both mortgages), had' consented thereto. That the default in the payment of the interest itself was not thereby waived.</p> <p>2. Same—Right of holders op coupons to bring actions.</p> <p>The tenth article in the first mortgage was as follows. “It is further expressly agreed and made binding upon each and every holder of bonds secured hereby, that no proceeding at law or in equity shall be taken by any bondholder to foreclose the equity of redemption under this instrument, or to procure a sale of the property^ covered thereby, independently of the party of the second part, trustee, or its successors .in said trust, except after a requisition, shall have been made to said trustee as herein provided, and, also, until after a refusal of the said trustee or neglect for sixty days, to comply with such requisition, according to the terms thereof.” EM, that the default so far as the principal is concerned, having been waived, the bondholders are debarred from proceeding at law, or in equity for the collection of the face of the bonds. That an action to recover the amount due on the interest coupons was not thereby inhibited, though it involved the sale by execution of a portion of the defendant’s property. McClelland v. Norfolk Southern Railroad Company, 3 N. Y. State Rep., 250, distinguished.</p>

Previous to March 18, 1885, the defendant had placed in plaintiff’s premises a gas-meter, and had supplied him with gas. On that day a fire occurred in his premises, either from an explosion of the meter, or through a leakage of gas therefrom, or from a defective service or gas-pipe.

The action was brought to recover commissions for the sale of certain real estate owned by the defendant, Joseph Veith. The plaintiff is a real estate' broker. His clerk, in January, 1887, called at the defendant’s residence, and there saw the defendant Maria M. Veith, and asked her whether •she was willing to sell the premises 37 East Seventh street, in this city.

<p>Attachment—Sufficiency of affivadit-—Code Civil Pro., § 636.</p> <p>An affidavit which states that defendant had, prior to the sale of the g.oods referred to in plaintiff’s affidavit, made false representations as to-his solvency, etc., and that plaintiff had since ascertained that the representation made by defendant was false and untrue, to the defendant’s, knowledge, at the time when made although it might have been good grounds for an order of arrest, under subdivision. 4 of section 549 of the-Code of Civil- Procedure, yet the samev.,tmsupported.by other averments, would not.be sufficient under section 636.-to authorize the granting of an; attachment.</p>

<p>Appeal from a judgment rendered December 27, 1887, without a jury, on a trial before Hon. David McAdam, chief justice, in favor of defendants and against the plaintiff for the sum of $756.49 and costs, in all amounting to the sum of $1,188.07.</p> <p>■ This action was brought to recover damages alleged to have been sustained by plaintiff, by reason of the arrest of plaintiff under an order of arrest, granted May 12, 1885,. and which order was subsequently vacated, the defendants having, on the 12th of May, 1885, executed an undertaking as principal and sureties, to pay to said plaintiff all costs and damages which might be awarded to said plaintiff, if it should be finally decided that said plaintiff was not entitled to the order of arrest.</p> <p>The answer alleges that the order of arrest was finally vacated with costs to the said Cornell, which were taxed at $107.65, which were paid by said Donovan, and which said costs were part of the costs for which said undertaking was given.</p> <p>That said Donovan, on the 5th day of May, 1886, recovered a judgment against Cornell for $867.31, and that there is still due thereon the sum of $729.66.</p> <p>That on May 10, 1886, said Donovan assigned unto the defendant, Dennis Harrington, an undivided one-third of said judgment and the money due thereon, and that said Dennis Harrington is still the owner thereof.</p> <p>That on the same day said Donovan assigned unto the defendant, John Harrington, an undivided one-third of said judgment and the money due thereon, and that said John Harrington is still the owner thereof, and that said defendants, Donovan, Dennis Harrington and John Harrington, are the owners of said judgment and of the moneys due thereon.</p> <p>The above judgment is set up as á counter-claim to the claim of the plaintiff.</p> <p>■ Upon the trial the chief justice found that the damages sustained by the plaintiff, Cornell, amounted to the sum of $250, and deducted therefrom the sum of $107.65 costs paid by said Donovan, and that there was a balance of $142.35, with $13.90 interest, making in all $155.25 due said Cornell.</p> <p>That the assignments of the judgment were merely for the purpose of protecting said defendants Harrington from any liability arising from the afore-mentioned undertaking, but that they were to that extent to be absolute.</p> <p>That the defendants were entitled to counter-claim the amount due on said judgment against the amount found to be due the plaintiff, and that defendants were entitled to judgment against the plaintiff upon said counter-claim, over and above the amount due the plaintiff, for the sum of $756.49, and ordered judgment accordingly, with costs, etc.</p>

<p>The plaintiff, a resident of New Jersey, but doing- business in the city of New York, entered into a contract with one Isaacs, who resided and did business in New Jersey. The contract bears, date, New York, March 25,1-886, and its material parts are as follows:</p> <p>■ “ Wilson Fiske agrees to sell to Louis Isaacs, a certain printing press, type, stand, cases, cabinets, etc., - to be delivered at 121 Montieello avenue, Jersey City, N. J., and Louis Isaacs hereby agrees to buy the said press and materials as above described, and to pay therefor, at the time and in the manner following, etc., and to give his promissory notes, evidencing such agreements to pay; and immediately upon its receipt to insure said property, loss, if any, payable to Wilson Fiske, and to deposit with the seller, a satisfactory policy of insurance thereon. But it is especially agreed that the title to the above-described property remains in the seller until the payments have been made in full, as above agreed, and that the delivery by the buyer to the seller of any promissory notes or other commercial paper, shall not be deemed a payment of any of the aforesaid sum, until such notes or paper are paid. And it is agreed that the above-described property shall not be removed from the premises 121 Montieello avenue, Jersey City, N. J., without the consent of the seller. And in case of the violation of any of the terms or conditions of this contract, the seller may take possession of and remove said property wherever found, without being guilty of any tort.” The instrument is, what is generally called a contract of conditional sale. Isaacs made default, and the plaintiff discovered that he had made an absolute sale of the property to the defendants, who took possession of the same, at No. 121 Montieello avenue, Jersey City, and brought it to New York. The plaintiff demanded the property and the defend-' ants refused to give it up, hence the present action in trover to recover for the conversion thereof.</p> <p>When the contract between the plaintiff and Isaacs was made, the printing press was in New York city, the other articles were not in the state, and so far as the evidence discloses, never were, prior to defendants bringing them here. The notes given pursuant to the contract, were payable in Jersey City.</p> <p>The main defense relied upon is that the contract was not file daccording to the statute of this state in regard to conditional sales.</p>

The parties, plaintiff and defendant, owned adjoining lots on the southerly side of Seventy-ninth street, west of Fourth avenue, in this city.

<p>1. Practice—Amended complaint.</p> <p>An amended complaint, after a verified answer, may be put in verified or unverified, as the pleader elects.</p> <p>8. Same—Service of papers—Letter box service—Code Civil Pro., §797.</p> <p>Service of a paper through a slit provided in the locked office-door of the adverse attorney, into an inside letter-receiver, is sufficient, though the paper só left is not inclosed in a sealed wrapper. The term, ‘' office letter-box,” in section 797, Code Civil Procedure, has reference to the attorney’s letter-box (if any), in the building, outside of his office.</p>

<p>Attorney’s lien—Code Civ. Pro., § 66—Execution and supplementary PROCEEDINGS MAY BE INSTITUTED BY ATTORNEY.</p> <p>The attorney’s lien is on the cause of action and continues, notwithstanding the settlement and satisfaction of the judgment between the parties. Execution and supplementary proceedings thereon may be instituted by the attorney in his own interest.</p>

<p>1. Will—How executed to be effectual.</p> <p>The paper offered for probate as the will of decedent, after a clause giving all his property to his wife, was signed and sealed by decedent, then, followed a second clause in which he appointed his wife his sole executrix, followed by the attestation clause which was signed by two witnesses. Held, that the instrument was not executed as required by our statute Of wills and that its probate must be denied. Following Sisters of Gharú/y v. Kelly, 67 N. Y., 409.</p> <p>2. Same—Must be both signed and witnessed at the end—2 Rev. Stat., 63, § 40.</p> <p>The statute requires every last will and testament to be subscribed by the testator at the end of the will, and also requires that there shall be at least two attesting witnesses, each of whom shall sign his name as a witness at the end of the will. 2 Rev. Stat., 63, § 40. It is not enough that one of these conditions is complied with, both must be observed.</p> <p>8. Same—Part of paper offered cannot be disregarded.</p> <p>The first clause (which was signed and completely disposed of all of decedent’s property) could not be regarded as his will and the unsigned clause which follows be disregarded.</p> <p>4. Same—Not essential to a valid will that it appoints executor, etc.</p> <p>It is not essential to á valid will that it should contain a provision appointing an executor, a direction to pay debts, or a direction for the distribution of the residue of testator’s estate.</p>

<p>1. Will—Rules of construction—Intent ofjtestator must govern— How ASCERTAINED.</p> <p>In construing wills the intention of the testator must govern, unless it violates some statute or well-settled rule of law, and this intention must be ascertained from the whole instrument, and when there exists a provision seemingly repugnant to other por,ions, such repugnant provision must, if possible be reconciled with the other provisions so that no interest intended to be given will be sacrificed.</p> <p>2. Same—Contingent future remainder valid—3 Rev. Stat., (7th ed.) 2178, §§ 32 and 33.</p> <p>A contingent future remainder, or estate, is authorized by 3 Rev. Stat. (7th ed.), 2178, §§ 32 and 33, and is valid even though the first taker is permitted to dispose of the whole during his life-time for purposes other than his maintenance and support, and thus by his will or volition defeat such contingent estate.</p> <p>8. Same—Construction of.</p> <p>The will of testatrix was as follows: "First, I give, devise and bequeath, unto my husband, John Hitchcock, all of my real, estate * * * to do with as he shall think best. Second, I give, devise and bequeath, unto my said husband, all and every kind of my personal property * * * and wish my said husband to do with said property as he shall think- best, during his life-time, without any let or hindrance from any source whatever. Third, I give, devise and bequeath, to my daughter, Mrs. F. A. Churchill, the sum of $8,000, to be paid her out of my real and personal estate at and after the death of my said husband, provided there be that amount in my husband’s hands at his decease. Fourth, I wish it to be distinctly understood that my said husband may use so much of my real and personal estate as he may wish during his life-time, and at his death if there be the sum of $8,000 remaining in his hands, that that amount be paid to my daughter, Mrs F. A Churchill, and if there be not the sum of $8.000 m his hands then, and in that case it is my wish that my said daughter have and receive whatever then remains in my said husb-md’s hands, to do with as she shall think best.’" Held, that the intention of the testatrix was that her husband should have the right, during. his life, to use the estate even to its exhaustion, and for purposes other than his support and maintenance; but, if at his decease, any remains, this remainder, to the amount of $8,000, her husband should not dispose of by will, but she herself bequeathed it to her daughter</p>

<p>1, Animals—Doe—Ownership—When proved—Vicious disposition— When proved</p> <p>On the trial of an action for injuries inflicted by a vicious dog alleged to have been kept by.the defendant, it appeared that the dog was shot on plaintiff’s premises while attacking plaintiff, in order to rescue the plaintiff and thrown into the street A workman employed, by defendant described the dead dog and said that it had “ the same appearance exactly,” as the dog, before that time, seen by him at defendant’s; also, that “ it looked like the same dog.” That he looked to be vicious to me. Another witness testified that the dog was once owned by himself, and afterwards “ around ” defendant’s; probably from a year to fifteen months. That he judged the dog lying in the road was the same dog, to the best of his belief. It also appeared that defendant’s coachman and his wife had been previously bitten by said dog. That defendant always kept the dog chained. Held, that the evidence tended to establish that the dog complained of was the defendant’s dog and that the dog was of a ferocious and vicious disposition</p> <p>2. Same—Scienter—Negligence—When proven.</p> <p>The defendant testified that he kept always half a dozen dogs; that they were always in chains day and night, at night tied out to the buildings, in the day-time in the house, never unchained. If the dog was defendant’s dog, held, that the purpose for which the defendant kept him for protect'on of his premises, charged him with knowledge of his character. That he was chargeable with negligently keeping him, although it did not appear that he had actually bitten another person before he bit the plaintiff.</p> <p>8. Evidence—Offer to pat damages—Admissible.</p> <p>The.plaintiff was allowed to put in evidence a conversation between himself and the defendant, in which defendant offered to give him five dollars a week and pay the doctor’s bill, etc. Held, properly admitted. That in such a case even the offer of a sum, by way of compromise, is admissible, unless stated to be confidential, or made without prejudice.</p>

<p>1. Board of health—Power to enact sanitary ordinances may be granted by legislature.</p> <p>The legislature in the exercise of its constitutional authority may lawfully confer on boards of health the power to enact sanitary ordinances, having the force of law within the districts over which their jurisdiction extends.</p> <p>2. Same—Ordinances not generally interfered with by courts.</p> <p>The legislature has vested the board of health of the city of Buffalo with the general power to prescribe such regulations as to the kinds of business that may be carried on within the city as they deem necessary for the preservation of the public health. Tne board of health of ihe city of Buffalo enacted a regulation as a sanitary ordinance, forbidding the rendering dead animals within the city limits. Held, that as a general rule the sanitary regulations of a board of health must be obeyed, and the courts would not interfere to restrain it from putting its ordinances in force.</p> <p>8. Same—When only enforcement of ordinances will be interfered WITH.</p> <p>Held, that tlmre was authority sustaining the right of a person engaged in a business prohibited within the city limits by its board of health to raise the inquiry whether his business, although within the letter of the prohibition, was not in fact so conducted as not to be a nuisance, but that the courts would not interfere to restrain the municipal authorities from putting their ordinances in force, except where the powers delegated to them had been exceeded, or the proofs made it plain and conclusive that the particular building or business establishment was not really within the intent of the ordinance although nominally so</p> <p>4. Same—Abatement of nuisance—What will not authorize restraint OF BY THE COURT</p> <p>Held, that a person who maintains that which is a nuisance or has been lawfully declared to be a nuisan e, will not be protected by the court upon the ground that in case of its abatement there would necessarily have to be something to discharge certain functions performed by it and which would possess all of its offensive characteristics. That such considerations must be addressed to legislature or the board of health.</p> <p>5. Same—Buffalo city charter, subd. 6, § 10.</p> <p>The Buffalo city charter, subdivision 6, § 10, provides for the service of orders made by the board of health upon the occupants of premises affected by them, or for their being posted in some conspicuous place on the premises It is provided by title 12, section 11, of that instrument, that in case of non-compliance witli any order or regulation which shall have been so served or posted, the said board or its servants or employees may lawfully enter upon any premises, to which said order relates, and suppress or remove the nuisance or other matters in the judgment of said board detrimental to the public health mentioned in said order or regulation Held, that the service or posting of the order was a pre-requisite to the right of the city authorities to enter upon premises affected thereby and abale a nuisance existing thereon, and that such action taken previous to the service or posting of- the order would be restrained by injunction</p>

<p>1. Landlord and tenant—Lease—Privilege to renew upon notice in WRITING, AND WAIVER OE REQUIREMENT FOR NOTICE IN WRITING, IS COMPETENT.</p> <p>The tenant was in the possession of the premises in question by virtue of a written lease under seal, for the term of four years, in which it was provided that the lessee might have the privilege of a further lease for two years after its expiration upon giving a written notice to the lessor, thirty days before the expiration of the lease. These proceedings were instituted to oust the tenant from the premises, the petition alleging the termination of the lease and failure to give the written notice provided for. The answer denied the expiration of the lease and alleged waiver of the written notice. Evidence was offered by the tenant before the trial to prove that in a conversation with his landlord, he had expressed his desire to renew the lease for the term mentioned therein and asked whether written notice would be necessary and that the landlord replied that it would not. Held,.that, it was competent for the parties to waive,' by paroi, the requirement for a written notice. Beckwith, U. J., dissenting, held that paroi evidence is not admissible to show that before a breach there was a paroi modification of a contract under seal.</p> <p>2. Same—Renewal op lease.</p> <p>Held, that the continuance of the lease *and waiver of written notice having been proven, such agreement operated as a renewal of the lease for the additional period of two years, and that the element of the statute of frauds was not in the case. Beckwith, C. J., dissenting.</p>